1 have not found the detailed facts as to the weather and the services of the. men and boats employed in salving the Bibber and cargo, because the ship was abandoned to the salvors, and it is conceded that the services rendered were sah'age services, and the amount of salvage claimed and allowed does not exceed, to any great extent, the actual cost for work and labor to salve wrecked railroad iron.
Consideling the foregoing conclusions of fact and law, it is ordered, adjudged, and decreed that the tl;J.e Galveston Steam-Ship & Lighter Company, be awarded salvage on the cargo of the schooner Bibber, to-wit: On about 700 tons of steel rails, libeled herein, in the sum of$12,500 as of date July 16, 1887, and that Miffiin Kennedy, claimant, and his sureties on the release bond, Julius Runge and Julius Kauffman, be condemned, in 8olido, to pay said award of salvage, to-wit: The sum of $12,500, with 8 per cent. per annum interest thereon, from July 16, 1887, until paid, together with all costs of the district court as adjudged, by decree of July 16, 1887, and all costs of this court to be taxed. And it is further ordered, adjudged, and decreed that J. H. Hutchings and J. G. Goldthwaite, sureties on the appeal bond to this court, be condemned, jointly and severally, to pay and satisfy the aforesaid decree against Kennedy, Runge, and Kauffman, together with costs as aforesaid. And, after five days from notice of filing this decree, ex· ecution may issue.
NORTH GERMAN LLOYD. l
(Di8trict Oourt, S. D. New York. November 80, 1887.)
GENERAL AVERAGE-PASSENGER'S BAGGAGE-RIGHT TO BE CONTRIBUTED FOR.
Passengers' baggage is to be contributed for in general Though reciprocity is the usual rule in general average as respects the rIght to compensation and the duty to contribute, there are well-established exceptions which include apparel and other articles attached to the person.
SAME-PASSENGER'S BAGGAGE-WHEN IT CONTRIBU'l'ES.
Passengers' bagga,ge in daily use does not contribute in general average. Baggage stored in the ship's compartments, and not in use, does contribute.
SAME-FIRE IN BAGGAGE COMPARTMENT-DAMAGE BY WATER-SACRIFICE.
The damage to cargo occasioned by water used to extinguish fire in a compartment of an iron steam-ship is a voluntary sacrifice and a general average charge, if the fire was suph as to threaten the safety of the whole ship, if not extinguished. It is immaterial that the means to extinguish the fire were easy, if the use of those means involved the damage sued for.
4. SAME-DUTY OF MASTER TO TAKE AVERAGE BOND-FOREIGN CODES.
Fire broke out on a steam-ship in a compartment used for the stowage of passengers' baggage. Water was introduced into the compartment, and in extinguishing the fire the trunks of libelant, a passenger on the steam-ship, were damaged by the water. On the completion of the voyage, no average adjustment was had, or average bonds taken. Held, that it was the duty of the master, in case of a loss, to cause an average adjustment to be made, and to
Reported by Edward G. Benedict, Esq., of the New York bar.
HEYE V. NORTH GERMAN LLOYD.
hold the cargo until the amount payable by each contributor is paid, or secured by a proper average bond, If the cargo is delivered to the various con· signees without such bonds, an action lies, iii favor of the persons en· titled to the contributIon. against the master, the ship, or her owners. 6. SAME-REV. ST. § 4282. . An action arising from independent acts of on the part of the ship, and from the breach of a maritime duty, in failing to enforce a general avera&,e contribution, is not within the provisions of Rev. St. § 4282, exempting shIp-owners from liability for damage to merchandise on board their vessels oc:lcasioned by fire.
In Admiralty. This action was brought to recover forthe damages to the contents of some of the trunks of the libelant and his family, who were passengers upon the respondent's steamer Ems, from Bremerhaven to New York, in October, 1886. On the night after the steamer left Bremerhaven, a fire, from some cause unknown, was discovered in the baggage compartment, where all the trunks were stowed. The steamer was stopped, and, by means of a fire hose introduced through a ventilator, the compartment was flooded with water, the fire extinguished, and a considerable part of the baggage, not touched by fire, was injured by the water. Upon arrival at New York, no general average adjustment was had, and the cargo was delivered to the consignees without payment of any general average contribution for the damages from water. The libel charges that the respondents are therefore liable for the amount which they should have collected for the damaKe occasioned by the water, excluding all that was touched by fire. The respondents contend that the damage was not a general average charge. The Ems was divided by bulkheads into various compartments. 'fhe baggage compartment was a 10nKitudinal one, situated over the boiler, and running along one side of the ship; about 50 feet long, 7 feet wide, and 12 feet high, and enclosed in iron, which was cased with two layers of wood, with spaces between them and the iron. From one-third to one-half of the wood-work on one side of the compartment was more or less burned and charred before the fire was extinguished; in two or three small places the wood was just burned through. The fire was dig. covered through the smoke issuing from the compartment; and the staterooms above were so filled with smoke as to drive out the occupants. R. D. Benedict, for libelant. Shipman, Barlow, Larocque & Choate, (Wm. G. Choate,) for respondent. BROWN, J. It is urged that, considering the division of the ship int() iron compartments, and the easy means of putting out this fire, there was no such common danger, or similarity, or substantial equality of danger between the baggage and the cargo, as makes justly applicable the rules of a general average contribution. Upon the evidence, however, no doubt, as it seems to me, can be entertained that the fire in the baggage compartment did threaten the safety of the entire ship. The situation of the compartment over the boilers; the considerable progress of the fire in the compartment; the proximity of the wood-work of the deck and other parts of the ship, and their warm and inflammable con·
such that it is to suppose th,s;! the ,fire might safely left to bum itselfout in the baggage compa.rtmentwithout danger of 'being communicated to the rest of the'ship; On the Contrary, n? attempt been made to this fire, I thinkitcertain that the fhe wouldl;1aye destroyed both, S,hlP and ,,In that sense, the danger was imminent, and threatened every.pal'tofthe ship alike. The fire not be put out except by of water otsteam,and water was the least injurious. But, as the flooding of the baggage compartment could be easily effected, the actual danger of the whole ship, taking into account this means of prevention, with its necessary attendant sacrifice of the contents of the baggage compartment, was not, indeed, great. But the qnestion as respects generaL average is not,what was the extent of the danger,supposing this sacrifice to have been 'made; but what was the danger if this sacrifice should not be made? And in the latter case there can be but one conclusion,--that the danger was great and common to all, and that the sacrifice was necessary. 1. The damage done by water used in putting out a fire to goods not touched by the fire itself is almost universally held a common charge, as being within the ordinary principle,of general average, viz., that "a loss voluntarily incurred for the sake of all shall be made good by the contribution of all." Per STORY, J.,lnsurance Co. v. Ashby, 13 PeL 338. Such are the provisions of many maritime codes, (see Gourl. Gen, Av. 159-165;) a.nd, in the absence of any express statute, the same has been held in this country, in France, and in England. 2 Pars. Mar. Ins. 234; Benecke, Ins. 165; Nimick v. Holmes, 25 Pat St. 366, 373; Nelr .wn v.Belmont, 5 Duer, 310; Lee v. Grinnell, Id. 400, 427; Gourl. Gen. Av. 160"",164; Desjardin, Traite de Droit Com. Mar. §§ 994, 990; Valroger, Droit Mar. § 2047; Stewart v. West India, etc., L. R. 8 Q. B. 88, 94; Wire Co. v. SaviU, 8 Q. B. Div. (1882,) 653. By the two cases last cited this rule as respects cargo is established as the law of England, contrary to the former practice of the English adjusters. Flooding a compartment to extinguish fire is equivalent, pro tanto, to scuttling a ship without compartments for the same purpose; and all water damage is generally treated as analogous to scuttling, as respects the right to contribution. It is also analogous to damage inflicted on other goods by wet in course of a jettison, which Beawes, more than a century ago, (Lex Mercatoria, 148,) said comes into general average. It is urged that the contents of the baggage department were already doomed; that, except in so far as they could be partially saved by fl·ooding the compartment with water in order to extinguish the fire, their destruction was· certain; that the goods in had therefore no real or practical value, save their value wet, and that hence there was no real sacrifice, and therefore.11o just claim for contribution. The question what is to be deemed such a "sacrifice" as to entitle the owner to a general average contribution has not infrequently arisen. Substantially the same question is presented in almost every case where the fire is put out by water, and unburned goods, near the fire, are damaged by wet. The very use of water presupposes that the goods adjacent to
the fire must be either damaged by the continuance' of the fire, or by the water used to put it out. The adjudications above cited, in determining that damage from wet should be paid for as general average, determine also, by necessary implication, that the certainty of the prospective injury by either fire or water does not prevent the application of the rule of general average. Substantially t1:J.e same question arises in the cases Qf a voluntary stranding of .a vessel tha,t cannot be saved, in order tl> preservlnhe cargo, though the ship must be lost; In the case of The Gem-ge, Olcott, 89, 97-101, this objection was overruled by BETTS, J. t and in the case of Barnard v. Adams, 10.How. 270, 303, the objection, in therery form now urged, was carefully considered by Mr. Justice GRmR, who, after saying that the objection was in reality "that, if the common 'peril was of such a nature that the jactus, or thing cast away to save the rest,would have perished anyhow, * '" * there can be no contribution," says: . "lfthis be the meaning of this proposition, and we can discern no other, it isa denial of tbe whole upon which the claim for general average has its foundation.. For the master of the ship would not be justified in cast· cargo into the sea, or slipping his anchor, or cutting away ing a part of his masts, orst)."anding his vessel, unless compelled to it by the necessity of the case, in order' to save both ship and cargo, or one of them, from an imminent 'peril which threatened their common destruction. The necessity of the case must comIiel him to choose between the loss of the whole and part; but, however metaphysicians may stumble at the assertion, it is this forced choice which is necessary to justify the master in making a sacrifice, as it is called, of any part for the whole. [Page 304.] '" * '" The jactus is said t() be sacrificed, not because its chance of escape was separate, but because of its selection to suffer, be it more or less, instead of the whole,whose chances of safety, as a whole, had become desperate. The imminent destruction of the whole has been evaded as a whole, and part saved, by transferring the whole . . peril to anotherpart. [Page306.l" According· to the best considered cases, the loss will be deemed nl> "sacrifice" in those circumstances only in which the property sacrificed must inevitably, or at least in all probability, be lost, not through the common peril, but owing to some situation or condition peculiar to itself, and independent of the common danger, and whether the vessel and the rest of the cargo survive or not. Thus, in Shepherd v. Kottgen, 2 C. P. Div. 585, the mainmast, before the giving way of the rigging in a heavy gale, was lurching dangerously, and liable to cause the ship to founder: it would not break, and was .therefore cut away. The jury found that the mainmast, in its condition in1'mediately before it was cut away, waS "hopelessly lost," that is, lost whether the vessel survived the gale or not. It was held upon much consideration to be no sacrifice, and contribution was refused. Lord Justice BRAMWELL says: "When the thing destroyed has some peculiar condition attached to it, so that it will be lost whether the whole adventure is saved or not, then the destruction cannot be deemed a sacrifice." Lord Justice BRETT says: "If anything on board a ship which is cut or cast away because it is injuring the whole adventure is in such a state or condition that it must itself cer-
tallllybe lost. although the rest cf the adventure should be saved without cutting or away, then the destruction of the thing,gives no claim for : . general average." , COTTON, says: "When the thing said to have been voluntarily abandoned' or destroyed is in such a state, by reason of a peril peCUliar to itself. that, if'theact of supposed sacrifH:e had not been done, it would have very shortly been destroyed, without the rest 01 the common adventure being lost, the act of· slightly hastening the moment of loss is not'an act of sacrifice whlch enables the owner of the thing to claim. contribution. There is no act of sacrifice. Within a short time the thing would have been lost by a peril peculiar to itself, and independent of the common peril to which the whole adventure is exposed." This is precisely in accord with the general tenor of the opinion in the case of Barnard v. Adams, supra, and on this principle contribution was denied by this court in the case of The Adele Thackera, 24 Fed. Rep. 809; Slaterv. Rubber Co., 26 Conn. 128. On the other hand, where the special danger is only a circumstance in the common peril to which the whole adventure is exposed; and the sacrifice was made in preserving the rest from the common peril, contribution is sustained. Johnston v. Chapman, 19 C. B. (N. S.) 563,585; The Margarethe Blanca, 12 Fed. Rep. 728. In this case there was no danger to the trunks save, the danger from fire, which was the common peril of the whole adventure. Unless the fire were suffered to extend to the whole ship, it must have been put out by water or steam. At whatever stage they began to put it out, whether in the first compartment or in the second, some of the goods nearest the fire must have been damaged by water. It was to the interest of the whole adventure that the work of putting out the fire should be begun and ended as soon as possible. The sacrifice of the trunks in the baggage compartment prevented a greater sacrifice afterwards, unless the fire were to be allowed to run its 'course, and destroy the ship and cargo. The contents of separate compartments cannot be treated as separate adventures, when the danger is one that threatens them all, unless sacrifices are made to avert it. When something must be sacrificed to save the rest, it can make no difference, as respects the right of average contribution, how near, or how remote, from the fire, the goods sacrificed may be, provided the sacrifice is necessary for the common good, and is an effectual means of saving the rest. 2. It is further urged that the libelant is not entitled to compensation, because by the law of this country pa8Sengers' baggage cannot be calle4 on to contribute in general average; and that there can be no equity or right to compensation where there is no reciprocal obligation to contribute. Reciprocity is undoubtedly the ordinary rule in general average. It is, however, rather a circumstance in the usual application of general average than an indispensable part of the principle upon which the right of general average contribution is founded. That principle, as before stated, is the simple equity that "a loss voluntarily incurred for the sake of all shall be made good by the contribution of alL" This, for the most