Ralli v. Troop/Dissent Brown

Mr. Justice BROWN, dissenting.

I Am compelled to dissent from the opinion of the court in this case. I find myself unable to escape the conviction that a person who has lawful possession of a vessel, and exercises the authority of a master over it, either by appointment or consent of the owner or by operation of law, is to be considered the master pro hac vice, and competent to bind the vessel or her cargo by all acts without the scope of his apparent authority.

There is in this case a failure to find an important fact, namely, whether the action of the port authorities was taken in the interest of the ship and cargo alone, or in the interest of other neighboring property, exposed to the conflagration. In the opinion of the court it is assumed that the bark was moored near to other vessels from the fact found by the circuit court that, as soon as the mate sounded the alarm of fire, 'from sixty to seventy men from the crews of the neighboring vessels came to his assistance,' bringing their buckets with them, as well as a force pump, 'from a ship near by,' and poured water into the hold. That appears to me very slender evidence upon which to base the opinion that the action of the port authorities was dictated mainly by a desire to prevent a general conflagration, especially in view of the fact that the district judge in his opinion, which, under our rules, is sent up with the record in the case, states that: 'If it appeared in this case, or if the evidence warranted the inference, that their measures were adopted in view of any actual or supposed danger to the port or to other ships, and that they acted differently than if the common benefit of the ship and cargo alone were considered; in other words, if there was any sacrifice of the ship and cargo for the supposed interest of other property,-I should consider the case not one of general average. But there is no evidence to warrant any such inference. This ship was far from shore, and apparently threatened no other property. The circumstances do not indicate that there was any conflict of interests between the ship and the shore, or that the port officials in any degree designed to sacrifice, or did sacrifice, any interest of the carego to the safety of other property. There was no occasion and no motive for their doing so. The most that can be inferred is that there was some difference of judgment between them and the master as to the amount of exposure it was prudent to permit to the smoldering fire; and in case of a difference of judgment the determination must rest upon those upon whom the law for the time being imposes the responsibility of action,-in this case, the port officials.' He further finds that 'that port officials were by law in command while the ship was on fire; that the purpose of the act of sacrifice was the common good of the ship and cargo alone; that the circumstances indicate that there was not in this case any interest of the port, or of other vessels, that in the least influenced the port officials in their action, or the smallest sacrifice of the ship or cargo in reference to any outside interests.'

It may be true that the facts here stated, not being incorporated in the findings, are not such as can be considered by us upon appeal to this court; but, speaking for myself, I think the case should have been remanded for a further finding upon this point, since it is quite possible these facts might be considered as having a bearing upon the result. The opinion, however, is put upon the broad ground that the sacrifice must not only be for the benefit of the common adventure, but must be made by some one specially charged with the control and safety of that adventure, and must not be caused by the compulsory act of others, whether private parties or public authorities. To this I am unable to give my assent.

No authority is cited in support of this proposition except the single case of Wamsutta Mills v. Old Colony Steamboat Co., 137 Mass. 471, in which it appeared that the steamship was lying at a wharf, 'near other vessels, and near buildings,' when a fire broke out in her hold: and that what was done was necessary to extinguish the fire, which if allowed to burn would have spread to the neighboring vessels and buildings. The opinion of that court, though perhaps broader in some of its statements than the circumstances of the case called for, carefully distinguishes between cases where action is taken for the protection of the vessel and cargo alone and those wherein action is taken for the supposed benefit of the public. In delivering this opinion, Mr. Justice Field said 'that it was necessary to do what he [the chief engineer] did, not only for the purpose of saving the ship and cargo, but for preventing the spread of the fire to buildings and other property in the city. &hellip; No one has a right to have his property burn, if thereby the property of others is endangered. &hellip; In taking possession of property for the purpose of extinguishing a fire that threatens to spread to other property, the chief engineer does not act as agent of the owner, but under a paramount right. If, indeed, the fire does not endanger the property of others, he may act merely as the agent of the owner; but, if the safety of the property is imperiled, he must act under his public responsibility.' While this case is distinguishable from the one under consideration in the particular above stated, its general statements have not escaped criticism. At the annual meeting of the British association of adjusters the case was commented upon by the president as 'much at variance with out law,'-that is, the law of England.

I see no reason for criticising the case of The John Perkins, Fed. Cas. Nos. 7,360, 10,252, and none for changing the opinion expressed by me in the case of The James P. Donaldson, 19 Fed. 264, 21 Fed. 671. But it seems to me they have only the remotest analogy to the case under consideration. The first case involved the power of the custodian of a ship, who for the time being represented the master, to bind another ship to contribute to the sacrifice of the cable and anchor of his own ship. The second case involved the right of a tow to recover compensation in general average for a sacrifice made by the master of another ship, namely, the tug by which she was being towed, in casting off her tow line, and suffering her to go ashore. In each case there was an attempt to extend the law of general average beyond the ship and cargo engaged in the particular adventure.

A case which seems to me to be more closely allied in principle to the one under consideration is that of The China, 7 Wall. 53, in which this court held, contrary to the English but conformably to the continental authorities, that a vessel was liable for the consequences of a collision through the negligence of a pilot taken compulsorily on board, although it was admitted that, if the action had been at common law against the owner, and probably also in personam in admiralty, there could have been no recovery, as a compulsory pilot is in no sense the agent or servant of the owner. The opinion must necessarily rest upon the ground that the vessel is in some sense herself a principal, and any one having lawful command of her is, for the time being, her agent, for whose conduct she is herself responsible, buth in contract and in tort. The principle of the case in that a person who is exercising the authority of a master by operation of law is to be considered as master pro had vice, and as in vested with authority as such.

While the master is, under ordinary circumstances, undoubtedly the person to direct that the sacrifice should be made, it was held in Price v. Noble, 4 Taunt. 123, that a jettison made by a prize crew put on board of a British ship was a proper subject for a general average contribution. This was an action by the owners of a ship which had been captured by a French privateer, and put in charge of a prize master and a part of the privateer's crew, against the owners of the cargo for a general average contribution, caused by throwing overboard certain anchors, cables, and other stores. The jury found a verdict for the plaintiffs, subject to the question whether, under the law, they were entitled to recover. The argument made in behalf of the defendants was that 'every person who puts goods on board a ship tacitly contracts to intrust their safety to the discretion of the master of the ship, and to abide by his judgment of the necessity of sacrificing a part of the ship or cargo for the preservation of the rest, and, in case of such necessity, to contribute accordingly; but the sacrifice in this case made is not dictated by the master and mariners of the ship, but by strangers, to whom the respective owners of ship and cargo have never delegated the like discretion.' Sir James Mansfield held the objection to be untenable, and refused to set aside the verdict, though the mate, who must have been their prisoner, and hence without authority, appears to have concurred in the action of the prize crew.

That damage done by pumping in water, or by scuttling and sinking the ship and extinguishing a fire, is a subject of general average contribution is now too well settled both in England n d in this country to be longer a question of doubt, although the practice was formerly the other way. There is no disagreement upon this point. That there must be a common danger in which ship, cargo, and crew all participate; that the sacrifice must be necessary, or at least made in the exercise of a reasonable judgment that it was necessary; and that it must be voluntary,-are also admitted. But whether the water be pumped in by the crew or by a fire engine stationed on shore is quite immaterial, as was held in Nelson v. Belmont, 5 Duer. 310, 21 N. Y. 36; Gregory v. Orrall, 8 Fed. 287; The Roanoke, 46 Fed. 297, 53 Fed. 270; Id. 8 C. C. A. 67, 59 Fed. 161; Stewart v. Steamship Co., L. R. 8 Q. B. 88.

But if the master be engaged in extinguishing a fire by pumping in water, and the damage thereby done subjects the property saved to a general average contribution, I fail to see why he should lose his right to such contribution, if the port authorities, acting under a local ordinance, interfere, and take possession of the vessel, and do exactly what he was engaged in doing, but more efficiently and expeditiously. It was for the interest of all parties that the fire should be extinguished as quickly as possible, and, if the port authorities had more efficient means for such purposes than the master, and therefore interfered to assist him, it seems to me he should not lose his right to contribution. His loss was no greater that it would have been if the port authorities had not interfered. The damage to the cargo was evidently much less, so that the shippers were obviously benefited by such interference. Under such circumstances it appears highly inequitable that they should set up a defense which they would not have been able to assert if their loss had been greater.

If it be true, as assumed in the opinion of the court, that the right to a general average contribution arised, not from the contract of the parties, but from operation of law, and upon principles of natural justice, it seems an anomaly to say that one who is in possession of the vessel by act of law is not in a position to make a sacrifice out of which a right of contribution shall arise. The consequences of the rule announced by the court might, under certain circumstances, be so inequitable as at once to challenge its soundness. Suppose, for instance, the master had nearly succeeded in extinguishing the fire before the port authorities had arrived, and, against his protest, had assumed charge of the vessel. Under such circumstances, he would clearly be entitled to contribution from such of the cargo as he had already saved; but how would it be possible to distinguish between that and such as might have been saved after the port authorities took possession? In saying that the sacrifice must have been made by the act of the master the law evidently intends not that the word 'master' shall be taken in its technical sense, but that the act must be that of one in authority, and must be the result of the judgment of some one competent to judge and with authority to act, as distinguished from the hasty and arbitrary or timorous action of the crew or of a passenger, who have no authority to bind the vessel.

Supposed, for instance, a vessel and cargo be discovered abandoned at sea and derelict, and be taken possession of by salvors, who, for the purpose of saving the property, throw overboard a portion of the cargo. Can it be possible that the value of the property so jettisoned should not be estimated in the salvage expenses, and be contributed for by the property thus saved? There can be no question that, under such circumstances, the salving vessel would be entitled to remuneration; but the logical result of the opinion of the court in this case is that the owner of the property thrown overboard would lose its entire value, because the salvors are not agents of the owners of the vessel, and are strangers to the adventure.

In this case there is no finding that the port authorities took charge of the fire against the will of the master or mate, but upon his return on board the master found them in charge. There is no finding that he made objection to this. The only disagreement between him and the port authorities seemed to arise from the fact that the master, after having 'removed 552 bales of jute from the bark, desired to remove more; but the port authorities objected, and forbade it because of the danger of increasing the fire.' But this was evidently a disagreement as to a minor particular, and there is an express finding that 'the measures taken by the mate before the port authorities took charge of the ship, and those subsequently taken by the port authorities, were the best available to extinguish the fire, and to save greater loss upon the cargo.' There seems to have been no objection at the time to the port authorities moving the ship and putting her aground, although the master subsequently incorporated an objection to such action in his protest. In fact, the district judge states that 'the master did not object to the scuttling,' and that the chief difference between them was with respect to keeping the hatches open longer, for the purpose of removing more of the cargo, to which the officials objected, in consequence of the increased draught of air serving as fuel to the flames.

The opinion of the court tends, in every such emergency, to put the master and local authorities in antagonism, to give rise to unseemly conflicts between them, and to prevent the master from availing himself of their superior facilities for extinguishing fires. It seems to me there is no distinction in principle between a sacrifice made by a master and one made by authority of law, provided the common safety of the ship and cargo be the object of their action.

I am authorized to state that Mr. Justice HARLAN concurs in this dissent.