Columbian Insurance Company of Alexandria v. Ashby

IN error to the Circuit Court of the United States, for the county of Alexandria, in the District of Columbia.

This was an action instituted in the Circuit Court of the United States, against the Columbian Insurance Company, for the purpose of ascertaining whether the plaintiffs, Ashby and Stribling, and Peter Hewit, were entitled to recover against the cargo of the brig Hope, for a contribution for an average loss. The Columbian Insurance Company were the underwriters on the cargo; and an agreement was made between the parties to the cause, before the trial, that 'without regard to form, the real question between them should be contested.' Under this agreement the cause was tried, and the jury found the following special verdict.

'We, of the jury find, that on the 27th day of May, 1825, the brig Hope sailed from Alexandria on a vovage to Barbadoes, that on the said vessel standing down the Chesapeake bay, the weather became thick and foggy, and that it appearing in the then state of the weather imprudent to proceed to sea, the captain kept away for Sewall's Point, for the purpose of making a harbour, where he anchored, with the best bower anchor in three fathoms water; that all sails were furled, and a good scope of cable paid out, the wind then blowing very fresh from the north-east; that at ten o'clock, P. M., on the 3d day of June, he let the small bower anchor under foot, and payed out the best bower anchor until both cables bore a strain; that the gale still increasing, the kedge anchor was let go; that about midnight, the vessel struck adrift; that then the whole scope of the cables were paid out till they all bore a strain, when she fetched up; that the gale continued on the following day to increase, and the sea being very heavy, at one o'clock she struck adrift again and dragged three miles, when she brought up; that the gale then increased to almost a hurricane, she ripped up the windlass, parted the chain cable, and commenced drifting again, the whole scope of both cables being paid out. That she then between eleven and twelve o'clock brought up about three quarters of a mile below Craney Island in two and a half fathoms water, amongst and in sight of a number of other vessels, that she then thumped or struck on the shoals on a bank, and her head swinging around to the westward, brought her broadside to the wind and heavy sea; that the captain, in this situation, finding no possible means of saving the vessel or cargo, and preserving the crew, slipped his cables, and ran her on shore for the safety of the crew and preservation of the vessel and cargo, that the vessel run far upon the bank, where, after the storm, she was left high and dry, and it was found impracticable to get her off.

'We find that the plaintiffs in this action were the owners of the said brig; the value of the said brig was $3000; that one-third part of the brig had been insured by the said Columbian Insurance Company; that no insurance had been effected for the remaining two-thirds. We further find, that the whole of the cargo on board said brig was of the value of $5335, of which the said Columbian Insurance Company insured $4920. We further find, that the cargo was afterwards taken out safely, and that the vessel, her tackle, &c., were sold for the sum of $256 40. If, on the matter aforesaid, the law be for the plaintiffs, then we find for the plaintiffs, and assess their damages to the sum of fifteen hundred dollars; and if the law be for the defendants, then we find for the defendants.'

In August, 1825, the Circuit Court gave judgment in favour of the plaintiffs, for $1249, and the defendants prosecuted this writ of error.

The cause was argued by Mr. E. J. Lee, and Mr. Jones, for the plaintiffs in error; and by Mr. Semmes, and Coxe for the defendants.

The counsel for the plaintiffs in error contended,1st. That the plaintiffs in the Circuit Court, have not shown such a case as authorized any verdict against them.

2d. That the special verdict does not find such facts as authorize the judgment of the Circuit Court.

3d. If the defendants are liable at all for an average loss, the plaintiffs have already, in their action on the policy upon the vessel, obtained judgment for $2000; which including the amount of the sales of the vessel makes $2256 40, being more than the amount insured on the vessel, and the average loss, as reported by the auditor.

4th. That the facts which were proved by the survey and depositions in the suit on the policy on the vessel, form a part of the special verdict in this case. If they do, then the judgment of the Circuit Court ought to have been for the plaintiffs in error; of if the evidence in the record of this case is uncertain, then, for this reason, the verdict ought to be set aside.

The Court having considered the agreement made before the trial, as excluding all the points presented on the part of the plaintiffs in error from examination, except the question of the liability of the plaintiffs in error as the insurers on the cargo of the brig Hope, for an average contribution for the loss of the vessel, the arguments on that question are alone given.

Mr. Lee and Mr. Jones contended, that the maritime law imposed on the owners of the cargo no obligation to contribute, unless the vessel was saved. The total loss of the vessel exempted the cargo from contribution. Cited 9 Johns. Rep. 9. Phill. on Insurance, 339.

It is admitted that whatever the master of a vessel, in distress, does for the general benefit of the whole, is binding on all interested, and all are responsible for his acts. Cited Lex Mercatoria. Stevens on Insurance. 2 Wash. C. C. R. 299. 2 Serg. and Rawle, 331. But in this case, the acts of the master were not of this character; and a very important part of the duty imposed upon him by the perils to which he was exposed, was omitted. He did not consult the officers of the vessel, before the vessel was run on shore.

There must be shown an inevitable necessity, for the stranding of the vessel; and that the same was the sole cause of the saving of the vessel and cargo; to create an obligation by the cargo to contribute; and the special verdict should have found all the facts. The facts are not found, but the evidence of the facts. The verdict only says, that the captain finding the existence of the necessity ran the vessel on shore. It is denied that the cases cited by the counsel for the defendants in error are authority in this Court. The principle of the maritime law is, that the running the vessel on shore must be for the common benefit of all the property, both the vessel and the cargo; and this cannot be done by the absolute loss of the vessel. The captain had no authority to do an act of this kind. The sacrifice cannot be made for the benefit of what is absolutely and totally destroyed by it. The sacrifice must not be for the vessel, the cargo or the passengers, but for all; and it must be so far successful as that part shall be saved by it.

We must look to the Roman Code for the principles which are to decide this question. It must be decided by principles of public law. Cited, 9 Johns. Rep. 9, and the cases referred to. The authorities are clearly in favour of the case there decided; and a great many of the authorities in the English writers concur on the question.

All the law upon this question is derived from the Rhodian law; and by that law the salva navi is indispensable to create the liability for the contribution by the cargo for the injury done to the vessel. The saving of the vessel is essential. Cited, Holt on Shipping, ch. 7; Consolato del Mare by Boucher; Molloy's Commercial Law.

It is all-important that the question presented by this case shall be decided, and that the law of average shall be uniform in the United States. Different rules should not prevail in the states of the United States. A resort to the first principles of the maritime law, and ascending to the fountains of the code, will alone enable the Court to come to a decision which will have this influence and effect.

Mr. Semmes and Coxe for the defendants, contended, that the special verdict in the case shows that the running the vessel ashore was a voluntary stranding and loss of the brig for the preservation of the vessel, crew and cargo; and that such stranding and loss of the brig, the cargo being saved, entitles the defendants in error to recover of the owners of the cargo (or of the underwriters, their substitutes) contribution as for a general average.

Mr. Semmes for the defendants in error.

This is the case of a special verdict, finding all the facts in evidence which are material to the question before this Court. The facts found are briefly these: That the brig Hope, on a voyage from Alexandria to Barbadoes, was assailed by a violent storm while proceeding down Chesapeake bay in order to get out to sea; that she was for several days pressed by the fury of the winds and waves, and to prevent drifting on a lee shore, all her anchors were, at different times, let go and the cables paid out until they all bore a strain. That while in this situation the violence of the storm increased until the destruction of the vessel, crew, and cargo seemed inevitable. Finding there was no hope if he remained at anchor, certainly none if he attempted to breast the fury of the storm, and that nothing remained for him but the last resort of running the vessel on shore in order to save all or something, the captain resolved on this desperate step. Accordingly, the vessel, then riding at anchor, the captain slipped his cables and ran her ashore, in the words of the special verdict, 'for the safety of the crew and the preservation of the vessel and cargo.' The vessel ran high and dry, and it was found impracticable to get her off. She proved a total loss; and the crew and cargo were saved. The cargo was reshipped in another vessel; and the owners of the vessel now are suing the underwriters on the cargo for contribution to an average loss of the vessel and freight, because of a voluntary sacrifice of that vessel and freight for the benefit of all; the result being the preservation of the cargo. The act was done calmly and voluntarily for the common safety. The question now to be determined is, whether the part saved (the cargo) shall contribute to the parts lost, (the vessel and freight,) in general average.

The question presented to this Court is one of great importance to the commercial world. It has never been settled by the tribunal of highest resort in any country, and now, for the first time, comes up for final adjudication. The maritime writers of Europe have held opposite and conflicting opinions. Bynkershoek, Jacobsen, Valin, Voet, and Browne, have maintained the doctrine for which the defendants in error are now contending. Emerigon, Stevens, and Huberus stand nearly alone on the opposite side. The marine ordinances of the European states have been uniform in their provisions: those of Antwerp, Konigsberg, and Friezeland, have been for the doctrine we support. The Ordonanza de Bilboa has embodied the same just and enlightened view taken by Bynkershoek and the other writers and ordinances named; while to the Rhodian law, as handed down to us by the civilians, though containing no express provision for the case, we look for the foundation and the reason of our rule. The Courts have been in conflict likewise. The marine judges of Amsterdam decided against the contribution, in such a case; but the fallacy of their judgment has been ably exposed by Bynkershoek. The question has never come directly before any Court, under the jurisdiction of Great Britain. In this country the Supreme Court of New York have decided against the contribution. The Circuit Court of the United States for the third circuit; and the Supreme Court of Pennsylvania have determined in favour of it. The Court below awarded a judgment of contribution on this special verdict; the present writ of error has been prosecuted, and this Court are now to pronounce and say, which is the better and the juster rule.

The law of Rhodes, 'De jactu,' established the principle of average, in cases of jettison of part of the cargo for the safety of all. The provision is express in respect to jettison, but no other case is named. The expression of one case will not, however, exclude others from coming within its reason. The case put in the Rhodian law is by way of example or illustration, and not as implying that average is exclusively confined to cases of jettison. To show this clearly, we need only resort to the authority of Emerigon and his followers. With a solitary and almost ludicrous exception they admit that if a ship be voluntarily stranded, when in peril at sea, when chased by an enemy or by pirates, for the common safety, and be subsequently gotten off and proceed on her voyage, then, that the cost of repairs shall afford a claim to the ship owners for a general average. If the ship be partially destroyed there shall be an average; if the loss be total, there shall be none. Such is the doctrine of Emerigon, and of the Supreme Court of New York.

Stevens in his work on Average, p. 36, has gone further, and denies the average in cases of partial damage to the ship, as well as of total loss. He admits the law to be against him; he admits the uniform practice at Lloyds to be against him, as well as the opinion of eminent members of the English bar. We may pass him by, and content ourselves with those who admit the contribution in cases of partial loss. Now, it is from the Rhodian law that the advocates of this latter doctrine draw their authority. Let us go back to the great and fundamental principle of average established by that law, and see if it does not support a broader and more equitable construction.

To afford a case for applying the doctrine of average, the loss sustained must be a voluntary loss for the common safety, when all are in imminent peril; and there must be a saving of some part thereby. The part saved shall contribute to the part lost. If goods are thrown overboard in a storm for the purpose of lightening the vessel, and she and the remaining goods are saved, all shall come into contribution for the part lost; nemo debet locupletari aliena jactura. If damage be done voluntary to a ship to effect a jettison, as by cutting her sides, or the masts or rigging are cut away in a storm to lighten the ship, these losses are subjects of a general average contribution. So, the doctrine of our opponents in cases of a voluntary stranding, where the ship is got off, with partial damage. But if the ship is totally lost, they say there shall be no contribution. Do not the reason and the equity of the rule as to average, apply as clearly and forcibly to cases of a total loss as to cases of a partial loss? Where is the ground for drawing a distinction? If a distinction be drawn as contended for, it involves its advocates in this glaring inconsistency and injustice; that where a party has suffered a voluntary minor evil for the benefit of another, that other shall contribute to his loss out of the benefit resulting; but if, perchance, the voluntary suffering encountered should reach beyond a certain limit, and the sufferer should lose every thing he risked, then he is unworthy of any compensation. Where there is a small equity, there shall be relief; where the equity is increased tenfold, there shall be none. Such is the doctrine of the plaintiffs in error. It remains for those who draw the distinction to show the necessity and the reason of it.

It is contended that the captain should have consulted with his officers and crew before stranding the vessel, and that the special verdict does not find this fact. It has long since been conclusively settled that such previous consultation and deliberation are not necessary. Sims vs. Gurney and Smith, 4 Binney, 513.

It is likewise held on the other side, that even if there should be contribution for the vessel in this case, there should be none for the freight. There is no foundation for this objection. The freight follows the fate of the vessel; if the vessel be lost, the freight is also lost. If there was any merit in the voluntary stranding of the vessel whereby she was lost, the same merit attaches in respect to freight; for that was destroyed by the self same voluntary act.

Mr. Semmes referred to the following authorities:-2 Kent's Com. 191. Marsh. on Ins. 535 et seq. Da Costa vs. Newnham, 2 Term. Rep. 407. The Copenhagen, 1 Rob. Adm. Rep. 494. Walden vs. Leroy, 2 Caines, 263. Henshaw vs. Marine Ins. Co., 2 Caines 274. Jacobson's Sea Laws, 346. 348. 350. 2 Bro. Civ. and Adm. Law, 199. Bynk. Quaest. Im. Priv. b. 4, ch. 24, tit. de jactu, 424. 2 Magens, 200. Voet, Com. ad Pand. 690. Valin, 168. 1 Emerigon, 602. 612. 615. Sims vs. Gurney and Smith, 4 Binney, 513. Gray et al. vs. Waln, 2 Serg. and Rawle, 229. Caze et al. vs. Reilly, 3 Wash. C. C. Rep. 298. Story's Abbott, 342. 349, note. Bradhurst vs. Col. Ins. Co., 9 Johns. Rep. 9. 3 Kent's Com. 233. Stevens on Average, 36. Eppes vs. Tucker, 4 Call. 346. 4 Peters, 139. 11 Serg. and Rawle, 69.

Mr. Justice STORY delivered the opinion of the Court.--