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
HEYE V.NORTH GERMAN LLOYD.
part, involves reciprocity of right and obligation, and by the old law all were bound to contribute. But special reasons might exist why a class of articles that share in the common benefit might not be called on. to contribute; and such a case would form an exception merely to the versality of one branch of the rule, without furnishing any just reason why similar articles in another case should not be paid for when they' . had been voluntarily. sacrificed as a means ofsaving all the rest. A few such exceptions are well established, in which no reciprocity Thus cargo on deck must contribute, if saved, though it may have no claim to compensation if jettisoned. It is the same with goods put aboard without the master's knowledge, and without a bill of lading. 1 Pars. Shipp. & Adm. 185, 307, 322; Code de Com. § 420; German Code, § 732; 2 Valin, Ord. 519; Netherlands Code, § 732; Italian Code, § 649. On the other hand, the clothes of seamen, munitions of war, and, usually, provisions of the ship for use on board, do not contribute; though they are paid for if sacrificed. The reason assigned for excepting seamen's clothes is, not only the favor accorded .to seamen by the modern law from their necessitous condition, and in order that they may not hesitate in sacrificing what is' necessary through any fear of personal loss, but on account of their necessary exertion in connection with the special peril. Provisions do not pay, because contribution is based upon the value of articles at the close of the voyage; and provisions are for consumption during the voyage. If, therefore, it were the settled law of this country that passengers' baggage should not contribute, that would not' necessarily determine that such articles shoUld not be contributed the common safety. The grounds of'exemption for when sacrificed must be considered, or the right to compensation be determined as an
As respects the obligation of passengers' baggage to contribute .ingeneral average, no adjudication in this country or in England has been cited by counsel; nor have I been able to find any. In Abbott on Shipping, (503,) it is said; "Neither in this country do the wearing apparel, jewels, or other things belonging to the persons of passengers or crew, and taken on board for their private use, contribute.» Kent in his Commentaries (volume 3, *241) repeats this as the law of England. It would Beem to rest upon the practice of average adjusterS, which, as just seen, does not determine the law. Whitecr088 v. Savill, supra. 1 Pars. Shipp. & Adm. 322, 323, and note, refers to the practice but sees no reason for it on principle. The question has been much discussed by many of the continental authors. Most of the ancient authorities are cited by Emerigon, (Tr. des Assur. vol. 1, pp. 642, 646.) By the Rhodian law, everything saved contributed, even to the ring upon the passenger's finger. The same is the rule of Le Guidon, c. 5, art. 626. Cleirac (p. 263) says it depends upon the usage of each country, and adds (p. 45, note 27,) the usage then was that the clothes and articles that the passengers or merchants ordinarily wear upan them did not contribute. The Ordinance of Philip II. (1563) exempted from the duty of contribution articles of daily wear,v.33F.no.1-5
clothes i'n'daily-use. The Frenoh ol:dinanceof 1682 exempted the Clothing.of sailors 'onlYi saying nothing:ofthe clothes of passengera. Emerigon(p. 645) 'Sliyethat he "had never seen the clothes, jewels, moneYt or trunks .of passengers. compelled to contributei such things being consideredas acqessory 110 the person. But, if the question was raised, he thinks thejudgel would not· be permitted to depart the provisions of.the ordinanoe!)'· "The trunks ofpassengers," he continues, "jettisoned for the common safety, arei·paid.for; why, if saved, should they be exempted from contribution ?Mei'cbants and passengers do not enjoy the favor accorded. to the sailor; consequently nothing changes as to them tlie reciprocal. obligation of tHe general' rule." Pothier (Oontract Marit. 11:125) decides>that they should contribute. The ordinance of Wisbuy (f!.rticle 42) provides that "if any One has n:lOneyin his chest, let him take it out, and cliriy it about hini, and he shall pay nothingi'" evidently implying that ot·herwise it must contribute. Jacobson's Lex Mercatoria t (1729,) p. lS8 t makes: the same distinction, arid observ!ls that "moneyt jewels; and clothes, e!Xcept such as are borne upon a man's body, are not ;Beawes, ,in Le;x Mercatoria, p. 148, says that all must contribute, "even money, jewels,: clothes, "etc.; 'fbut.a man's apparel in use, andvictuals,.put;abQardto be: spent, are totally excluded from contribullipn."',Pardessus (Oours-de ,Droit, vol. 3, Jl>:.224) says that "the cl0thes andjewels,whichpas!!engers have upon them. and which are not putal!>oard fl,s· merchandise"do Dot contribute." Valin, in his commentaries on the Ordinance, (livre' 3, tit. 8, sUbd. 11, vol. 2, p; 517,) says that the exemptibnofclothing: "is to be understood only of that which is wOJ,ndaily, ahd the cha.rigesof.linen.for the voyage, as well as ornaments and, jewels: thatarehaij.tually worn upon the person, and not those which are put on upon the precise occasion of the jettison; there being'nodoubtthabin that case the clothes not in daily use, with trunks and:Doxes and'Qther effects,. would be held ,to enter into contribution." Furth-er"on (page 511.8) he continues: ' "As:they are only exempt from contribution for their orbe necessary to make a valuation of that separate dinary, apparel, their pther ,.,pparelj tl;1at is, if their ordinary jettisoned is esti. at liv ','and .t)J.e other at 2,000 Ii t4ey shall not contribute to for the 2,000 !iv., and be for the 1,500 Hv. like the seamen. OJ ,. ·" . 419, like the Ordinance, makes no express provision in regard to passenger's baggage. Boulay-Paty, (Oours .. lp,,§ 2, vol. 2, ,po ,2605,,) after,; stating the French custom to from passengers" quotes the opinion of Pothier to contribute for ,their: qlothes and jewels, and then addl:\: :!J"" , . , ; . if)t appeats, tbat the. judgEtll could not in this ';regard deof tpe.law, [not exewptlng passengers' baggage,] it wpUla seem Us to make a. distinction; to reserve for ealih passenhe habitually wears, but ger witboutccilitl'ibutioD the. clothes and jewels as for his 'trunks 'and 'other baggage, to make them contribute; -because, if these objects were jettisoned for the common safety, they would have to be
paid for by c6ntribution. joy tbe favor accorded to tbesailorsjconsequently nothiiigcbange8; as regards t·hem, thtl reciprocal obligations of the generallll.w')" ."
He addstha.t "it is that or other,baggage, if tisoned, enter into contribution to be paid From the extracts last quoted it is evident that the passage cited by counsel from Kent's Commentaries, (volume 3, in which it is that passenger's baggage "ought to he exsaid empted, and that the existingiFl:'ench usage is proper," is quite erroneous and misleading, except as regards the comparativelyunimporlant item of clothes in daily lise, or necessary changes voyage; and that as regards trunks put, liketpese, ina baggage tation,and not for use during the voyage,the high authority'ofBoulayPaty, Valin, Pothier, and Emerigonis.strongly to the contrary.' Phillips concludes that "no reason has been given why passenger's baggage should not contribute as a part of the contributory interest; and sons says the siu.ne. 2 Phil. Ins. 153; 2Pllrs. Shipp. & Aqm. 322. Desjardins, a of the·:rrench court of cassl,ttibri, in his treatise (1885) on Maritii:neand Commercial Law, (volume4,p. 472,) conch:ides that "what the passenger wears upon his person sh'ould be exempted, like the clothes of seamen, on the ground that the gerieral average loss, while it may have saved the ship and the cargo, does'not determine necessarily the preservation ofthe personll on board; ""nor, consequently, of what is accessory thereto. " Beyond this he" does' not hesitate to hold that the trunks of passengers should contribute." By the express provisions, however, olthe great majority of the recent Maritime Codes, the baggage 'of passengers does not contribute; but, if sacrificed, it nevertheless must be paid for in general average. German Code, a.rt. 725; Belgian Law1879, art. 106; Italian Code 1882 Lart. 648; Code ofthe Argentine Republic, § 1502; Turkish & Egyptian Uode, art. 261; Norwegian Code, 76; Danish Code, § 242. The New Code Of Spain, (1885,) art. 856, exemp1:spassengers' clothes or wearing"apparel in use. By the Code of Chili, (article 1096,) wearing apparel and effects of passengers are exempted, not exceeding in value and in kind those of themaster that he is entitled to reserve. The Swedish Code (article 163) exempts the clothing and other articles of passengers not constituting a mercantile venture, (une pacotiUe.) By the Brazilian Code, (article baggage for the personal use of passengers is exempt. The Code of the Netherla.nds (article 731) exempts the "daily clothes" of the passengers. The Code of Finlartd (article 147) exempts" the effects of passengers, except what may be regarded as forming a part of the cargo and freight, and whatever a person wears and himseHsa'ves." Desjardins, 8tiPra, vol': 5, pp. 475-484; Gour!. Gen. Av. 586,597; Ulrich, Haverei-GeSetze, (1884.) The author last cited, in commenting (page 17) upon the provision ofthe German Code (section 725) that exempts passengers' baggage from contribution, without qualification, observes: . "Passengers' Traveling Effects. It seems reasonable that those effects intended for the personal use of the passengers should noteoritribute that are
with the' pasRenger into the cabin, or ,that are kept in another part of the vessel"without any special compensation besides the passage money. Article 673.. However, if these same effects pay a special freight so that they partake more of the character of general cargo goods, then they must also contribute. The provision of article 725 seems not to conflict with this, because by it only the regular case of article 673 is intended to be met."
provisions of all the maritime codes, the clothes and baggage ofpassel)gers,:Iike the clothing of sailors, munitions of war, and provisiqns for the s1).ip, though not on to contribute, must, as I have said, lor if sacrificed for the common good. So, in the absence ofanyexpress statutory in regard to passengers' baggage, as in France, the same right to compensation is affirmed by the highest auan undoubted right. This right seems never to have been anywhere questioned; and it is plain that such articles, when sacrificed for. the rest, are within the principle of general average as much as any other property on board. <;Jonsidering, then, t116 undoubted universal rule to pay for baggage sltCrificed, and quite general exception of such articles from assessment, it is necessarily to be inferred that this exemption is based upon grounds ,do not affect the justice and the equity of compensation for such articles when sacrificed for the rest, though they may not be called on to contribute when save,d. The reasons for this exemption in the case of passengers' baggage, I have. not found stated any further than its in_ sign.ificance, as Loundes suggests, anI! the reason above indicated, viz., that what is upon the perSOn is not subject to the same risk that attends the cargo,apd may be saved with the person though the cargo be lost; but that suggestion would apply only to what is strictly attached to the person, not to trunks in the baggage compartment. But, aside from that, when we oons,ider how great annoynnJe and inconvenience to passengers would attend the long detention of their trunks and clothing until a general average adjustment could be had, oran average bond be given; the practical impossibility ofeither, where passengers with their baggage are taken on and off at intermediate ports in the course of the voyage; the difficulties attending the valuations to be put upon such articles in averand in the collections thereon; the inquisitorial and ofage fensive natllre of such examinations; the small value of lDany of such packages, such as those ofsteerage passengers; the insignificant sums to be from most of the trunks and boxes, often, perhaps, less than the cost Qf,adjustment; and the difficulty of making any distinction in the mode of dealing with the baggage of the different classes of passenKers, and the natllral desire to accommodate travelers in the rivalries of competipg lipes,-inall these considerations there seem to be practical reasons enough', without reference to the legal right, to have led, first, to the omission in practice of any assessment on passengers' baggage, and, next, to the adoption. of. that practice in many of the recent Codes. Whether this be the true account of the matter or not, in the light of the a.boye authorities, and the general usage of maritime nations, it is clear that the absence ofreciprocity in the right to compensation and the obli.
HEYE 'V. NORTH GERMAN LLOYD.
gation to contribute, is not sufficient to exclude passengers' baggage from compensation. The same authorities show, as it seems to me, that by the general maritime law, aside from the provisions of recent codes, the only baggage exempt is apparel, and such other articles as the passengers wear, with the usual changes for the voyage, and such as theyactually take with them for use, which in that sense are attached to their persons; not trunks delivered into the exclusive charge of the ship, and which are neitller in use, nor in the passengers' possession, during the voyage. The modern codes above cited differ as to the extent to which this exemption is allowed. Where, as in this country, there is no statutory provision on the subject, and no adjudication, the omission of the baggage from assessment, beyond that actually in possession of the passenger, and in use on the voyage, must be regarded as a favor or courtesy to passengers, or as being a waiver for practical reasons, rather than a strict legal right to exemption under the general maritime law; unless, indeed, the practice not to detain and hold baggage for a general average adjustment were proved to have been so long settled and acted upon as to .form one of the implied terms and conditions upon which passengers embark. Though such a practice, if established and well understood, might possibly entitle the 'passenger,in cases of a general average loss, to a delivery of his baggage without detention, it would not relieve from the obligation to contribute by a pro rata deduction, according to the usual rule in general average, upon the amount allowed to him for his particular loss, when the passenger himself is seeking compensation; because in that situation none of the practical reasons for omitting passengers' baggage from assessment are applicable. Upon this point I follow the principles universally affirmed, and the united authority of the French authors above cited; and as none of these trunks were in daily use, or "attached to the person," I shall hold them bound to contribute, when the owners are seeking compensation, as in this case, by a pro rata deduction according to the general average charge, as in the example cited by Valin, supra, vol. 2: 518. This accords also with the express provision of the German Code, art. 725, subd. 3. And see 5 Valroger, Droit Mar. §§ 2198, 2199. 3. Section 4282, Rev. St. U. S., does not, in my judgment, exempt the respondent from liability in this case. It provides that "no owner of any vessel shall be liable to answer * * * for any loss or damage which may happen to any merchandise whatsoever which shall be shipped, taken in, or put on board any such vessel, by reason or by Lleans of any fire happening to or on board the vessel," etc. Whether the trunks of passengers which ,like these, are not taken into the cabins, or retained in their own charge, but are put in the exclusive charge of the ship, until they are delivered to the passenger upon the dock, at the end of the voyage, and in the mean time are stowed in a separate compartment of the ship, like any other merchandise, are or are not included in the words of the statute, "any merchandise whatsoever," is a somewhat difficult question. See The Marine Oity, 6 Fed.
ltep.413; The Garden Oity, 26 Fed. Rep. 766. It is notnecessal'Y to con. side/."that question here;:npr the further question whether the statute inonly the direot damage from .fire, and not the damage that· happens indirectly "by reason of the fire," but directlfand solely by water, through the voluntary act of mandn putting it out; .nor whether congress,in passing this statute, could have intended to.modify the law of general average contribution so as· to exempt the ship herself from paying her own pro rata share of the value of another's prop,arty voluntarily sacrificed by the master for the ship's own benefit;-for the gravamen ()f this action is the negligence oithe ship in making delivery of the cargo without any general average adjustment, and without requiring payment, in.part for the libelant's benefit, of any ,general average contribution. By the maritime law it is the duty of the master, as the representative of the interests of nll,upon the completion of the voyage, to cause an average adjustment to be made, and'lto hold the cargo until the amount payable by each contributor is paid, or secured by a proper average bond... If this duty is not performed,and the cargo is delivered to the various consignees without requiring payment of their shares, that constitutesa breach of a maritime obligation, for which ·an action necessarily lies in favor of the persons entitled to contribution against the master, the ship, and her owners, to recover the amount of the average, which the latter were bound to enforce,but did not. 2 Marsh. Ins. 544;Id. (5th Ed.)438; Gourl. Gen. Av. 433; Dike v. The St. Joseph. 6 McLean, 573jGillett v. Elli8, 11 Ill. 579; Eckfordv. Wood, 5 Ala. 136j Strong v. Insurance 00., 11 Johns. 323, 334. The persons entitled to compensation might, indeed. pursue the cargo, or the several consignees, if they could trace them; but the master and owners of the vessel have no right to throw that burden upon those whose property has been sacrificed for the common good. Having improperly and negligelitly, as respects the libelant, delivered the cargo without exacting contribution, they must respond for. the amount, and themselves bear whatever trouble or expense may attend a resort to the various consignees who still remain liable. Such an action, arising from independent acts of negligence on the part of the ship, and from the. breach of a maritime duty, is not within the provisions of section 4282. Rev. St. The libelant is therefore entitled to a decree, and to an order of reference to ascertain the amount due, if not agreed on.
ELWELL '1.1. GEIBEl.
v. GEIBEl and another.
((Jircuit (Jourt, 8. D. NetD York. November 28. 188'7.)
SHIPPING-LIMITATION OIl' LUBILITy-JURIsDICTION.
The circuit courts of the United States have no jurisdiction by bill In equity, or otherwise, to enforce proceedings for limiting the liability of ship-owners under, the provisions of sections 4282, 4284, and 4285 of the Revised Statutes. While these sections provide that a ship-owner may, under certain circumstances. limit his liability by appropriate proceedings in any court of competent jurisdiction, the cIrcuit courts are not the tribunals designated. The statute embodied in these sections created a new right, and by implication prescribed that it should be .enforced in the district courts, and the remedy. is confined to the jurisdiction provided by the statute which gave the right.
.Daniel T. Walden, for defendants.
Robert.D: Benedict, for
WALLACE, J. The demurrer presents the qnestion whether the case made by ,the bill is one of which this court has jurisdiction. The ,bill is filed tolimitthe liability of the complainant, as.a ship-owner, under the provisions of the act of congress ofM4rch 3, 1851; now contained in sections 4283, 4284, and 4285 of the Revised Statutes. It alleges, in substance, that the defendants have severally brought actions against the complamantin a state court, to recover damages for 'personal injuries sustained by the negligelltnavigation of the bark Keystone, of which vessel.the complainant is the owner. The jurisdiction of this court is invokedllpon the theory that the proceeding is not one, cognizable in admiralty"because the liability of the complainant arises, from an injury inflicted by the ship upon the persons of the defendants while the latter were on the land. It is not necessary for present purposes to consider whether the case made by the bill is or is not one of admiralty jurisdiction. If the district courts of the United States are the courts contemplated and referred to in the act as the courts of "competent jurisdiction," in which "the appropriate proceedings" are to be taken, the proceeding must be taken in one of these courts, or it cannot be taken at all; and if the case made, for any reason, is one of which such a court cannot take cognizance then it is one which is not within the reJ;lledy of the statute. The supreme court have expressed their views upon this question by promulgating rules regulating the practice that is to be pursued when the benefit of the act is sought. By these rules the proceedings are required to be instituted and conducted in the district courts, and the circuit courts are authorized to administer them only when cases are pending upon appeal from a district court. These rules were adopted after the decision in Norwich 0>. v. Wright, 13, Wall. 104, the first case in which the supreme court had occasion to consider the construction and general effect of the act limiting the liability of ship-owners. In the opinion, the court used this language: