Barnard v. Adams/Dissent Daniel

Mr. Justice DANIEL dissenting.

The decision just pronounced, so far as it goes, must of course be regarded as settling the law of this court upon the subject of general average, that decision being in complete accordance with the decision of The Columbian Assurance Co. v. Ashby and Stribling, 4 Peters, 139; the single case from this court previously maintaining the doctrine announced by the court in the case before us. But, however the decision now made may control the question of general average in the courts of the United States, as it must do, being the revised and reaffirmed doctrine of this tribunal, still, with the sincerest respect entertained for the opinions of my brethren, and with unaffected diffidence as to the conclusions of my own mind, I have been unable to vield to this doctrine my assent. I cannot but regard the doctrine here affirmed as opposed to the course of opinion (the settled and undisputed opinion) in the greatest maritime and commercial nation in the world, and as subversive of the fundamental principle in which the law of average has its origin. That principle, which is traced by all writers and courts to the Rhodian law, is thus propounded by Lord Tenterden, in his work on Shipping (p. 342): 'Namely, the general contribution that is to be made by all parties towards a loss sustained by some for the benefit of all.' The same writer (p. 344) says that goods must be thrown overboard; the mind and agency of man must be employed. If the goods are forced out of the ship by the violence of the waves, or are destroyed in the ship by lightning or tempest, the merchant alone must bear the loss. The goods must be thrown overboard for the sake of all. The same writer remarks (p. 348), that, though the rule mentions goods only, its principle extends also to the ship and its furniture.

Mr. Benecke, in his Treatise on Average (p. 96), tells us that general average has been described in the English courts to comprise 'all loss which arises in consequence of extraordinary sacrifices or expenses incurred for the preservation of the ship and cargo.' After speaking of the enumeration of instances of general average in some of the Continental nations of Europe, he continues: 'Although these laws and the corresponding ones of other states do not make use of the term sacrifice, yet their definitions imply that nothing short of a sacrifice shall be deemed a general average. All these laws may therefore be said to establish the same general principle; namely, that a sacrifice made for the preservation of the ship and cargo is general average.' Again he says (p. 97): 'As to the term sacrifice, it is clear and generally admitted, that a damage, to deserve the appellation of a sacrifice, must have been purposely undergone, and by the agency of man, for the benefit of the whole, and that every damage not purposely undergone, although the ship and cargo may be benefited by it, gives no claim to restitution.' Again, it is said with great force and propriety, that the special sacrifice must be something done and not suffered; there must be the will and agency of the party making it. That it should be for the purpose, and with the intent, causa et mente, of the preservation of the common concern. Although the examples of this sacrifice put are usually instances of jactus, the principle embraced applies equally to the ship as to the cargo; thus Benecke (p. 144) says: 'The case of voluntary stranding being implied in the general rules, most of the foreign ordinances omit to mention it expressly. The Prussian law is in this respect more explicit than the others. If the captain, say sections 1820 and 1821, in order to preserve the cargo, run the vessel intentionally ashore, the damage thereby occasioned to the ship and cargo as well as all incidental charges, belong to the general average. But if it appear clearly from the circumstances, that the stranding was resorted to merely for the purpose of saving the lives or liberty of the crew, the damage, even if the whole cargo be saved, is held to be particular average. The ancient laws, says Benecke, as well as the opinions of the English and foreign lawyers, are also in favor of this distinction. And it is, as far as I have been able to learn, the practice of all countries.' The same will, the same positive action, the same purpose, and, it may be added, the same predicament or position of the actors, must exist in each class of cases. There must be intent and act, prompted by, and tending to, a practicable, or at least a probable result, and not mere endurance or submission to uncontrollable necessity in either case.

Thus, says Benecke, 'when a vessel is purposely run ashore (p. 143), and afterwards got off with damage; the question whether repairs of such damage belong to general or particular average depends entirely upon the circumstances of the case. If the situation of the vessel were such as to admit of no alternative; so that, without running her ashore she would have been unavoidably lost, and that measure were resorted to for the purpose of saving the lives or liberty of the crew, no contribution can take place, because nothing, in fact, was sacrificed. But if the vessel and cargo were in a perilous, but not a desperate situation, and the measure of running her ashore deliberately adopted, as best calculated to save the ship and cargo; in that case the damage sustained, according to the fundamental rules, constitutes a claim for restitution.' And Mr. Phillips, in his work on Insurance (Vol. I., p. 338), and in a note to Stevens on Average (p. 81), lays down the law, both in England and in the United States, to be this: that 'the voluntary stranding of the ship is general average; but not the mere steering her to a less dangerous place for stranding, when she is inevitably drifting to the shore.' I am wholly unable to perceive how, in conformity with the rules and principles above cited as constituting the foundation of general average, contribution could justly be claimed in this instance for the loss of the ship. For there is not a scintilla of proof in this cause tending to show a design to sacrifice the ship, or anything else, nor tending to prove that the course pursued was one which, under any circumstances, could possibly have been avoided. On the contrary, the testimony establishes, as far as it is possible to establish any facts, that the stranding was the effect of the vis major, of an inevitable necessity,-that every effort was made to avoid this necessity, and that the only act of the mind apparent in the case was the determination, to repeat the language of Mr. Phillips, already quoted, 'merely to steer her to a less dangerous place for stranding, when she was inevitably drifting to the shore;'-a determination not less for the benefit of the ship than for that of the cargo, and one falling within the general scope of the duty and discretion of every master or seaman.

There is no contrariety in the testimony in this case. The single witness, the mate, who was examined, states most explicitly the hopeless and desperate condition of the vessel;-she had lost all her anchors, was in the midst of a hurricane, and drifting to the shore under a force which the witness explicitly says nothing could resist. He therefore did not elect to run her ashore, or to make her a sacrifice for the general good; he only sought to save her as far as possible from danger or injury. It appears to me to be no slight paradox to assert, that a man is the positive and controlling agent in the accomplishment of an effect which he merely suffers, and which is forced upon him by a power that he is wholly unable to resist or influence, and that it is equally paradoxical to declare, that we elect and seek a sacrifice or a peril from which we are most anxiously fleeing. The cases at nisi prius in the federal courts, and in the courts of the states referred to, leave this matter pretty much in equipoise, if indeed they do not incline to the side of the question here maintained. We have Story and Washington and Tilghman opposed to Kent and Gibson and Kennedy; with this consideration attending the decisions of the Supreme Court of Pennsylvania, that they are the most recent, and have been made upon an examination and review of the cases which they have overruled. Repeating the assurance of entire deference entertained for the opinion of my brethren, and of the sincerest diffidence of the conclusions of my own mind, yet being unable to concur in those opinions, I have no claim to share in their merits if they are right, and if they are incorrect, my position with respect to them should be equally understood.