HEYE V. KORTH GERMAN LLOYD.
had no right, I think, to demand that the should do this worle, rather have the gpods .sold at auction. The analogy drawn from the repair of vessels damaged by collision is not, I think, applicable. So far as I know, it has never,been applied to damaged goods; and tbe circumstances, as respects the facilities of sale, and tbe means of obtaining the proxiinate value of the damaged articles, are Wholly different. Unless there is some dispute, therefore, as to the result of the auction sale, or some unfairness is cbarged in regard to it, the libelants may take a decree for the amount claimed, with interest and costs. If tbereis dispute on these pointl:l, a reference may be taken to ascertain the damages.
NORTH GERMAN LLOYD.
(Oircuit Oourt, 8. D. New York. November 14,1888.)
A passenger's baggage, stowed in the baggage compartment of a steamship,and damaged by water in an attempt to extinguish a fire which threatened the safety of the vessel, is a subject of average contribution.
In Admiralty. Libel for damages. On appeal from district court, 83 Fed. Rep. 60. Libel for damages to the contents of libelant's trunks, caused by fire on board respondent's steamer Ems. ,Decree for libelant, and an order of reference directed to ascertain the amount if not agreed on. Respondent appeals. W. G. (]hoare, for appellant. R. D. Benedict, for appellee. WAJ.LACE, J; . Tbe only question which has been argued upon thIs appeal is whether passengers' effects are a subject of average contribution wben sacrificed under the conditions of necessity and common peril constituting a general average loss. The counsel for the appellant insists that they are not to be contributed for, but cites no authority directly to the point; and there seems to be no decided case in the courts of this country or England in which the question has been determined or considered. His argumeut is that passengers' effects do not contribute ill a general average loss, and therefore should not btl contributed for, because the principle of general average contribution is reciprocity of burden and benefit. But all the commentators without exception aasert or assume as unquestionable, that passengers' effects are to be paid for in case of sacrifice. Even the English text writers do not question this. Thus it is stated in 1 Maude & P. Shipp. 434, 435:
.. But although these [the wearing apparel, luggage, jewels, or other property of this description belonging to the passengers, on board for 11%e. but not for traffic] do not contribute, it is apprehended that if ammunition. pas-
or other goods which are exempt are sacrificed for the general good. they must be paid for as other goods by general contribution." See, also, Macl. Shipp. 634. Among our own text writers Mr. Phillips adv6l't$ to the question by quoting the language of Emerigon: "The trunks of a passenger. thrown overboard for the general safety. must be contributed for; and why. if they are preserved, should they be exempted from contribution?" He also quotes Benecke: . ";passengers ought to contribute for their trunks and luggage. because. if cast their value is allowed for." 2 Phil. Ins. § 1394. There seems to be no American case in which the question has been considered whether passengers' effects contribute in general average to the payment of the loss. The argument that if they do not contribute they ought not to be contributed for is a legitimate one, and has commonly been invoked by the commentators to show that passengers' effects should contribute to the loss because they are contributed for. The doctrine that they do not contribute by the law of England is supported by the authority of Lord TENTERDEN and Chancellor Kent. But the former, after remarking upon the wisdom and equity of the rule that all are to conttibute toward a loss sustairied by some for the benefit of nll, observes: principle of tbe rule has been adopted by allcommercial nations. but there is no principle of maritime law that has been followed by more variations in practice." Abb. Shipp. 474. ' Chancellor Kent repeats this observation, and adds: Ii And the rules of contribution in different counties. and before different tribunals, are'so discordant, and ·many of the distinctions are so subtle and so artificial, that it becomes extremely difficult to reduce them to the shape of a connected and orderly system." 3 Kent, Comm. 235. The court below, in deciding that such effects are to be contributed for, the question whether they also contribute, and concluded that they do. The opinion of the district judge is such a complete exposition of the whole subject upon authority and reason that any further discussion of the questions involved is wholly unnecessary, and would be superfluous. It is proper, however, to add to his citations, showing the views of the great admiralty authorities from the earliest ages that the effects of passengers, not in daily use or attached to the person, are to contribute in general avera/te, some others which have been found bythe counsel forthe libelant.. In Brown's Civil Law, vol. 2, p. 201, (published in 1802,) the law is stated as follows: .. All persons for whose benefit tbe act was done, the freighter, tbe master, the owner, tbesailors. the passt>ngers. must contribute. ... ... ... All things in the ship, and the bodies of the men, [unless servants] must bear a proportionable sbarein the coutribution. Doubts were formerly held whether money and jewels contributed. but they are now certainly included in the general rule." In Jll.c. Sea Laws, translated by Wm. Frick, (published in 1818,) it is said:
.. The trunks and effects of passengers are included in of general average. The case does not often occur; but when it does. the question arises by what standard shall they be estimated. Cleirac.in his com· mentary upon the Rolle of OlMon, says: ·The passengers are required to have produced to the master preVious proofs of the contents, or obtain indemnity only for thfJ value of the empty trunk. ' OJ In Bedarride's Commentaire, vol. 5, distinguished author, after quoting Emerigon and Pothier to the effect that passengers' baggage must contributtl, says, (section 1848:) '''The Code having only repeated the words of the ordonance of 1681 WI;) can, under it, accept as settled the principles taught by Emerigon and Pothier. Till now the has not been raised. What has led to this result is that ordinarily the value of the passenger's baggage would not compenl'late for the delays or the expense of a settlement in general average, or the delays which would entail on navigation. OJ The decree of the district court is affirmed, with costs of this court.
et ale f1. McINTYRE et ale
(District Oourt, E. D. N61IJ York. July 27,1888.)
Where 8 ship's charter provided that the steamer was to be consigned to charterer's agents at ports of loading, paying one commission of two and a half per cent. to charterer's order at the first loading port. and to be reported at the custom-house by the said agents 'on customary terms. held, the agents were not entitled to a commission at a port of discharge. Where a motion to dismiss a libel is heard without objection, and the charter-party is presented to the court and commented on by counsel, no question being raised as to its terms, and is also referred to in the answers to the interrogatories, libelants are not entitled to have the question determined according to the allegations of the libel, irrespective of the provisions of the charterparty. .
ADMIRALTY-PRACTICE-MoTION TO DISMISS LmEL-BEARING-EvIDENCE.
In Admiralty. Two libels filed by Diego La Scala and Filippo Modica, one against the steam-ship Serapis, her tackle, and the other John J. McIntyre and others. Coos. Stewart Davison, for libelants. E. B. Gmvers, for claimants.
J. The question so earnestly discussed on behalf of the libelants in these two cases, whether, where a charter of a ship contains a provision that the ship shall be addressed to a broker to be named by the charterer, such addressee can maintain an action in his own name against the ship or her owner to recover for the failure on the part of the ship-owner to comply with this clause in the charter, C&Dnot