Danish bark a considerable quantity of specie, which it was agreed should remain under his control. On arrival at Charleston he resumed possession of the specie, and the fire was put out by flooding the ship, doing considerable damage to the rest of the cargo, and some to the vessel. The specie was forwarded by the master to its destination; but the ship's voyage was broken up, and the cotton was sold. The specie was held liable to contribute to the expense and damage caused by the return to Charleston and putting out the fire, the same as if it had remained on board the Galena. In the court of appeals SELDEN, J., says, (page 47:) ..If the captain had put the specie on board the bark, not in any event to be returned, but to be taken by the bark to its own port of destination, and the latter had then been suffered to pursue its course, the specie would clearly not have been subject to contribution for any SUbsequent expenditure to save the Galena; and the same, if, when put on board the Danish bark, it had been distinctly understood that the'specie was in no event to be restored." . Such were clearly the understanding and the expectation upon which the unloading and delivery of the cargo in this case were made·. Judge Marvin, in stating the results of the case of .McAndrews v. Thatcher, observes: .. Notwithstanding some uncertainty in the precise meaning of the language. employed by the supreme court in its decision in the case of 1J1cAndrewlJv. Thatoher, yet I think tbis case, when interpreted by the case of Nelson v. Belmont, to which we have referred, does decide that a complete separation of the cargo from the ship by the master or owner, not again to be returned to the ship,disso!ves the community of interest between them, whether such separation takes place at a distance from the port of destination, or by a delivery by lighters at the port of delltjnlltion; and that consequently all general average Charges thereafter cease. l:5uch a separation, when it tllkes place at a distance from the port of delivery, is equivalent to the abandonment of the voyage; and when it takes place by a delivery at the port of destination, it is equivalent to a completion of thevojage as to the cargo. which can no longer derive any benefit from the expenditure of money on acconnt of the ship." Marv. Av. 61; Gourl. Gen. Av. 4(}IJ-402, note; Sparks v. Kittredge, 9 Law Rep. 818; fil"aham v. Welb'h, infra. 4. Again, the question whether in case of misfortune a common interest still remains between ship and cargo, and the extent of that common interest, are questions of fact depending on the circumstances. See The Amelie, 6 Wall. 18-27; The Julia Blake, 107 U. S. 418,427, 2 Sup. Ct. Rep. 692, and cases there cited. If the cargo can be unloaded and be delivered by other means at very much less expense than by the stranded vessel, the cargo has no actual common interest with the ship in. the further prosecution of her voyage. In the present case, about $100,000 was necessary to float the ship after the cargo was unloaded; while scarcely more than a third of that amount was necessary to unload the cargo and deliver it to its o.wners. The cargo, by means of a general average assessment, is sought to be charged with some $60,000 or upwards, on account of the subsequent expense of getting the ship off, though the caTgo had no actual interest in that work; It is plain that this is not compatUJ:}ibleiWith the fundamental principlcs of general average
less the entire proceeding of unloading the cargo and getting the ship off may be rightly dealt with as essentially one act, done for the common safety of both. When the unloading makes the ship float, that act is doubtless a single act, and is a general average expense. And when, as Mr. Justice CLIFFORD says, (3 Wall. 366,) "the master, with the usual appliances at hand, without much expense or delay, can haul her off and complete the voyage," it will usually be to the common interegt of ship and cargo to do so; and then the whole expense should be apportioned. But the work of a wrecking company, necessarily continued from two to three months, and at large expense, in getting the ship off, after the cargo is discharged and delivered, cannot be the same act as discharging the cargo. Job v. Langton, 6 El. & Bl. 779,791; SVerlsden v. Wallace, 13 Q. B. Div.. 69,79, 86. The nature of the stranding, in a case like this, in and of itself divorces the interests of the ship from the interests of the cargo, except as to the mere act of unloading. The acts necessary for the safety Of each, in such a case, are not the same. As respects the ship, - unloadingis a mere preliminary work; but, being necessary to the safety of ship and cargo, separately considered, each should bear its average of that expense. Beyond that, and after that, the interests of each are wholly separate. There is no further community of interest. iThe unloading, also, having been done with a view to the immediate delivery of the cargo by other means, amounted to a termination of the voyage, as between that ship and the cargo. The transhipment into other vessels involved the cargo in new sea-risks, and in the liability to a new and independent general average charge with those vessels, in case of any new peril. Although, for the purposes of earning freight, the transhipment and forwarding of cargo by the master might in some cases be deemed merely a performance of the original undertaking, i. e., of the personal contract to deliver at the port of destination, here the subsequent voyage in the other vessels was no part of the voyage of the L'Amerique herself, and hence constituted no common interest with that ship itself, but only with her freight; a wholly different subject in the view of the law of general average. The new transportation involved, as I have said, new and independent rights, liabilities, and obligations. The unloading itself, therefore, made for such purposes,in a case like this, distinguishes and separates the cargo from all the subsequent work of hauling off the ship as independent work, done for an independent interest, and on, account of the ship only. The separation of interests became thereby complete, and the subsequent expenses incident to each interest should remain separate. The Ann D. Richardson, Abb. Adm. 499, 507; Graham v. WelBh, 45Phila. Wkly.Notes, No. 27; The Joseph FarweU, 31 Fed. Rep. 847. 5. The same conclusion follows from considering the' duty' and the authorityofthe master, and the limitations of his authority, as respects the cargo, in a case of misfortune and distress. When different courses are open to him, he is bound to act for the interests of each, and as a prudent owner I if present, would presumptively act, and have a right to ,act.
He is not authorized to sacrifice the ship to the cargo, nor the cargo to the ship. The Onward, L. R. 4 Adm. & Ecc. 38,57; Kemp v. Halliday, 6 Best & S. 723,748; Lown. Av. (4th Ed.) 161, As between different alternativeb, he has no right, therefore, to adopt a measure that is very burdensome to the cargo merely for the ship's interest, when the cargo interests can be otherwise far more economically conserved. When a severance of the associated interests is easily practicable, and would plainly be required by the owne" if present, the master, as his representative, is bound to make the separation; and if a separation is !lctually made, as in this case, it should be deemed done iu accordance with the rights and the interests of the cargo owners. It is well settled that the owner of the cargo, on an interruption of the voyage by misfortune, may, upon tender of the freight and any lawful charges, repossess himself of his goods, and thus a complete separation from the ship, and avoid any subsequent contribution. The Julia Blake, 107 U. S. 418, 2 Sup. Ct. Rep. 692, affirming ]6 Blatchf. 472,486; Nelson'v. Belr mont, 21 N;., Y. 36, 42, 47. If the ship cannot complete her voyage without making use of the cargo at a greater expense to the cargo than unloading and forwarding it by other means would involve, then the master has'no authoritytO make use of the cargo at all. without the owner's consent, for the ship's relief, or merely for the purpose of completing her voyage. It was upon this precise that the case of The Julia Blake, supra, was decided. The doctrine was there reaffirmed that it is "necessity that develops the master's authority and limits his pow· ers." Before imposing an extraoriinary burden on the cargo, the necessity for it, as respects the cargo interests, must appear. Themaster "must endeavor to hold the balance evenly between his two principals." He cannot create heavy charges on the it was held, when the cargo will not thereby receive a corresponding benefit; nor when the latter's interest may be otherwise fully protected at greatly less expense; as by forwarding the cargo through other means of conveyance. 107 U. S. 429, 432, 2 Sup. Ct. Rep. 700-703. In such cases the cargo is under no necessity for the heavy expense, and hence there is no authority to incur it. ' On this point the chief justice further observes:
,"The cargo owner is not bound to help the vessel through with her voyage under 'all circumstances. It is the duty of the vessel owner, and of the master as his appointed agent, to do all that in good faith onght to bedoue to carry the cargo to its place of destination; and for that purpose the owner should contribute tp the expense as far as his intel'ests may apparently require; but he is under no opligation to sacriticehis cargo, or to allow tO'be sacrificed, for the benefit of the vessellllone. He ought to do what good faith towards the vessel demands, but need not do more. If he would lose no more by helping the vessel in her distress than he would by taking his propertyand disposing of it ill some other waY,-he should, if the vessel owner or the masterrequires it, furnish the help or allow the cargo to be used for that purpose. ',I'o that extent he is bound to the vessel in her distress. but no further. When,thel'efore, a cargo owner finds a vessel, with his cargo on board, at a port of tefuge, needing repairs which cannot be effected without a cost to' him ,of more tLa'n he woUld lose by Laking his property at that place and pay-
iug tl1e vellsel all ber lawful cbarge!lagainst bim, we do not doubt that be may, pay and reclaim the property; otlJel'wise he would be compelled to sub'mit ,to asaCl'ifice of bis own interests for tM benefit of others, and that the law does. not require." . These .observations are as applicable to a case of stranding as to a case of reparatioQS in a port of repair. They put an end to the supposition that the master has a to make use of the cargo, to its palpable disadvantage, for the mere purpose of accomplishing the voyage with his own ship, when that is not necessary for. the cargo. Mr. Justice STORY, also, in the leading case of Insuranc(l 00. v. Ashby, 13, Pet. 331, 340, in reference to a case of stranding, long since said: "In truth it is the safety of the pr,opmy, and not of the voyage, which constitutes the true foundation of general average;" which is the precise ground of the glish decisions: Svensden v. Wallac(l, 13 Q. B. Div. 69, 72-75, 85, 91; Hallett v. ,Wigram, 9 C. B. 580. The master has no more legal right, to sacrifice the interests ,of the cargo for the purpose of floating a stranded ship,than of repairing an unseaworthy One; nor to inflict an unnecessary and .injurious charge upon the cargo under, the guise of general average, than in the form of hottomry. Ul1der the view of the courts of this country, which regard as general average alm.ost all extraordinary expenses in a port of refuge made necessary, by sea perils, (HobsrYnv. Lord, 92 U. S. ;397,) the corstated in the recent case of rective check of the principle so The Julia Blake is essential, in order to prevent abuses and the sacrifice of the carg9 to unreasonable expenditures by the master for the ship's benefit; and, ip. cases of disaster, to confine his authority to charge the cargo within the limits of its own interests and necessities. If disaster a,nd the l1ee!i of extraordinary expenditures are held to release the shipownerfrQmthe duty to repair at the ship's own cost, they must be held. equally toreHev.e the cargo from any obligation to continue a manifestly disadvantageous lt88,ociation with the ship; and to put an end to the master's authority to hold the cargo longer to the ship, to the cargo's ,and to debar him also from undertaking any work on manifest the cargo's account, or creating any charges against it, that are clearly opposed to its interests or its necessities. He may do acts contributing to the safety and ipterest of both; at the common expense. Beyond that, he has no authority to bind either .for the other; and good faith forbids him to measure that will plainly inflict on the cargo a heavy for the ship's benefit, when he knows that all the interests of the may J)ep,rotectlfd by separating it from the ship, and forwarding it to, its destination by other means, at a comparatively small cost. This limitation, imposed by reasonable prudence and good faith o,n the master's power to charge the cargo, is intimated in the guarded language of Mr. Justice' Cl;.IFFORnln McAndrews v.' Thatcher, supra, (page 368,) wherein tbe'work supposed to pe much expense or delay." ·TQ:e wndition is elsewhere plainly expressed or implied. IUs an implied qualification in e'very assertion ,pf the master's duty to
, THE L'AMERIQUE.:
, oomplete the voyage. Hallettv. Wigram, 9 C. B;, 580, 601; Walthew v. Mavrojani, L. R. 5 Exch. 116, 121; Goodwillie v. McCarthy, 45 Ill. 186, The nature of the work of getting the ship off in this case was entirely distinct and separable from the work of unloading. There was not the slightest need of consolidating them, or of treating them as one. Both ship and cargo had a common interest in the latter; .but the cargo had no interest in the former. The only work for the common safety or benefit was hi discharging the cargo; and that work, therefore, is all that faills within the principle of general average. So far as the interests were distinct and opposed to each other, the expenditures for the benefit oreach should ,be kept distinct. The charges for unloading must, therefore, be separa.tedfrom those for getting the ship oft'. If the whole operation was "one continuous work," as respects the ship, it was certainly not so as respects the cargo. Nor was ihe whole work in this case any more "one continuous operation," so far as I can perceive, than in the case of, Job ·v Langton, which in McAndrews v. Thatcher was approved. The subsequent measures here taken to float the ship were "new tneasureS"as much 'as in· that case, in the sense that they had nothing to do with unloading ;the cargo. General average rests upon the highest equity,and upon the esscntialfacts of the case, not upon any fictions; and the principle that forbids sacrificing the cargo to the ship, forbids treating as one act a series ofacts that have different objects in view, and, as respects expenditures, are perfectly separable, according:to the interests benefited. The · cargo is, doubtless, to be treated as a whole. The of unloading in · this case was in part to rescue the cargo itself from peril; and in part also to lighten the ship, so as to make hauling her off possible. But those were not the only purposes of unloading.. It was equally done in order to make delivery of the cargo to the owners at once, without reference to the success or failure of the subsequent efforts to get the ship off. After un, loading, the subsequent work of forwarding the cargo· to its owners in no way concerned the ship oHts safety, but the cargo and freight only; and the efforts and expenditures made in hauling off the ship itl noway con:.cerned the cargo. That the wrecking company did the whole work, or · worked continuously, or that a part of the preliminary work for hauling off the ship was going on at the same time with the unloading, docs not affect the essentially separate nature of the different parts of the work done, and the different objects in view; nor authorize allY charge against the cargo for work that would plainly be of no benefit to it,'The master in this case did precisely what according to the decision'in The JUltia B'lake it was his duty to do, he at once forwarded the gObds to their owners by other means than by his own ship. He is not at liberty to Ilay that he did not intend any separation of,the cargo from the interests of the ship, and of her voyage; because, under the circumst/;l;nces of this stranding, and the long delay and the heavy expense of floating the ship, plainly to be foreseen, he had no legal right to hold on to the cargo any longer on joint account, or for the accomplishment of the voyage by his
own ship, to the obvious sacrifice of the cargo. The unloading and de}ivel!y, must therefore be construed as a complete separation of ship and cargo. Before the work was begun, many, if not most, of the underwriters were consulted; and it must be inferred, therefore, that the cargo owners generally understood that the delivery of cargo was to be made immediately, as their interests required it should be made. This rendered unnecessary any specific demand for such delivery on their part. 6. The case should be treated,therefore, as that of a separation of the interests of the cargo from those of the ship, made in accordance with the rights of the cargo owners by the master as their agent, and for their benefit, and in accordance with his own obligation under such circumstances; with the same effect ,as if done upon the cargo oWJ;ler's demlmd. hardship by this separation. She 'I'he ship sustains no injury and , illllurred no expense for the caJ:go's benefit except in unloading, and that expense the cargo shares. If the cargo had been worthless ballast, it must have been unloaded in the same way, as a preliminary to the work of getting the ship off. In payinKall the subsequent expenses of float"ing her, the ship pays only what by the sea peril has fallen to her lot. AS,the voyage,i;!O far as concerns, the earning of freight, was substantittllyaccomplished at the time ,of the stranding, and as the separation , Wall made solely for the consignee's interest, the shi p should be allowed her freight in full, ai;!, though the oWners had demanded and received the cargo on the beach, or in lighters. The expense of unloading should be charged "as general average against ship, freight, and cargo;oecause thl\t expense was equally necessary for the safety of all,and was actually incurred for the benefit of all. Neither can be exempted from paying its share, on the ground of receiving an accl,dental or incidental advantage, (Oarv. Oarr. by Sea, §§ 398-400; Lown. Av. 4th Ed. 173;) since the unloading , in this cas,e was not an accident or a mere incident, as respects either .the ship or the cargo; but was equally necessary to the safety of each, alld was actually ;donefor the benefit of each. The subsequent expensefl on account of the cargo after it was discharged, either on the beach or in'1o lighters, should be charged as particular average against the cargo alone; and the expenditures that had sole reference·to hauling the ship off, against the ship alone. As the foundation of the claim is not the bond, nor the adjustment under it, but the expenses incurred for the cargp, . which the bond merely protects> and sufficiently covers, whether they are gen.eral average or particular, it is not necessary to dismiss the cause by reason of the partially erroneous, mode of adjustment. If the parties 'dO not agree, a readjustment of the respQudents' obligations may be had in accordance herewith, by the same adjuster, or by any other that may be agreed upon; ,and, on further report thereon, a, decree may aocordingly. ,
WHELAN 11. NEW YORK, L. E. & W. R. CO.
WHELAN tI. NEW YORK,
L. E. & W. R.
(Oircuit Court, No D. Ohto, E. D. July 24, 1888.)
1. REMOVAJ, OF CAUSES-AoT OF )!ARCH 3, 1887-STATUTES-REPEAL. Act of March 3, 1887. § 2, c1. 4, providing that in actions "in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, any defendant, being such citizen of another state, " may remove the action to the federal court on the ground of local prejudice. and section 6, providing that "all laws or parts of laws in conflict herewith are hereby repealed, " repeals Rev. St. U. S. § 639, subd. 3, which required all the parties on one side to be citizens of different states from all the parties on the other side to entitle them to remove for local prejudice.!
B. SAME-LoOAL PREJUDICE-RIGHT TO REMOVE. Under section 2, c1. 4, of the act of 1887. in an action by a citizen 'of Ohio against three Ohio corporations and a New York .corporation. toenforce a joint liability Unposed by state statute for personal injuries sustained bl plaintiff, New York corporation is entitled to have the cause removed.
8. SAME-SEPARABLE CONTROVERSY. The riglit of removal under this clause is not confined to cases where' there is a separable controversy between the plaintiff and the defendant seeking the removal. as such cases are provided for by clause 3. § 2, of that act, apd the proviso in clause 4, as to remand as to resident defendants, where the parties can be separated, refers oilly to a remand after the suit as a whole has . been removed by the non-resident defendant.
4. SAME,-OnIGINAL JURISDIOTION. The fact that congress has not given original jurisdiction to the circuit court in such case does not affect its jurisdiction on removal by the non-resident defendant.
I>. SAME-CONSTITUTIONAL LAW-JUDIOIARY.
The act is not unconstitutional, though by virtue of the removal the circuit court obtains jurisdiction of the entire cause,. including controversies between plaintiff Bnd the resident defendants. It only gives effect to the constitutional provision respecting controversies between citizens of different states, and with that view the single federal ingredient, the citizenship of defendant in another state, is controlling.
6. SAME-TIME OF ApPLICATION.
The application for removal is not too late. though made after the cause has been heard on demurrer in the state court and after issue joined; the .words" any time before the trial" referring to the tinal tr,ial on the merits. I
7. SAME-PROCEDURE. The Jriethod of procedure to effect the removal not being prescribed by the act, the usual mode of procedure, prescribed by Rev. St. \:i 639, and the filing of a petition and affidavit setting out, almost in the language of the act, "that from prejudice and local influence said defendant will not be able to obtain justice in said court of common pleas, or in any other state court to which it has under the laws of the state of Ohio a right, on account of such prejudice or local influence, to remove said cause, " is sufficient. lAs to when and by whom a cause may be removed from a state to a federal court, on account of the diverse citizenship of the parties, under the act of March 3, 1887, see Oooley v. S5 Fed. Rep. 372, and note. !A.s,tOwhat is the I?roper timeforfiling an application for removal of. a cause to a Lar,son v. Cox, (Kan.) 18 Pac. Rep, 8Q2, and note; Railroad 00. , Ford, 35 Fed. Rep. 170.