FEDERAL REFORTER t
The evidencES shows that tbe libelant was engaged l'llldshipped in the quality of pilot, and not in the character of . Mr. Moquin was registered as master of the tug, and his name so in the papers on board, Although Moql,1in did not at this time .Elan on, the tug, he. and his ag.ent performed all the'duties of master, except the duties of navigation,which the plaintifl',aspilot on board, performed. The libelant did not ,engage or discharge any of the men. He made no <lOntract for the tug, determined none of her trips, and colexcept such as were paid. on the spot. ; In the case of Thelttr:Y:andercook, 24 Fed. Rep. 472, the hbelant's name appeared on the of the vessel as master, and he made the usual, ma!lter's oath. In .Willard v. Dorr, 3 Mason, 92, Mr. Justice STORY says that the reason generaUy:ascribed for denying to the master a privilege for bis wages is that; when he contracts, he trusts to the personal credit of the owner; or, as8ir "\VIU.JAM SCOT,r says, he is supposed to stand on the security of contract: rfthis be so, it is plain that whelihe contracts explie&l'l1yfQr the position of master, and so enrolls himself on tbe ship's papers; prii1lw,jacie, at least, tbere can be no lien, as in the case of The M. Vandercook, above cited; but that when he expressly contracts as pilot only, and person. stands as registered master, Wbether the latter sails on the tug or not, th,ere can pe,no such prima facie assumption that he contracts on the personal credit oUhe owners., The presnmption is plainly the .other way,vi1;., that, hlloving expressly engaged in the capacpih>tonly. botbJ>arties underst90d that he should be entitled to a. pilot's privilege on the ship, Notwithl:!tandingthe circumstances adduced by the defense, such, I think, was the intention, as it was plainly the form. of this contract. The lien should therefol'ehealIowed. Deoree for libelant, with costs. . .
ndt entitled' to a lien.
(Dl.8trlct Oourt, B. D.New York. July 22,18l1O.}
L GBl!IB1l.u:. AVERAGE-PERIL-DELAy-No DANGER
The primary requisite for a general average charge ia 1I0me perU common to ship or·!I0meexpeDse voIUntari}.V,lnIlUrr(ld .by one part that Chal'geable .to .it by law, for the safety of the whole. The nature of tile requisite pelon is some threatened physicl10l injllry, not mere delay or loss of expected profits, nor the mere prosecution of the voyage, where no danger to ship or cargo has arisen.
TO SHIP OR CARGO.
t:lAME-WARRANTY OJ!' SEAWORTHINESS WIlEN SHIP SAILS.
A carrier I:IY, sea; 1\is implied wan:apty of seaw:oz:t!r1ness, is bound to have bis ship seaworthy at tbe tilme she sails.' He, and not theshillper of the goods, takes the risk of accident to the ship while loading. and' is legally ohargeable with the whole burden of repairing.
S.Q4:E"7AoOIDENT WIlILllLQADING-REPAlBs-ExpENSE OJ!' DOqJq:NG·
.The sbip T., while loading at New York, 810ng-sidethe Wharf, after returning to was ·found When ne!U'ly loadedwitll 1;I,er fOrward compartment full of water, arising from a hole in one of the plates, from some cause unknown. A tight bulk-head protected the cargo from injury. or danger of injury. For the purpose of repair, she was docked witb her cargo on :boaJ'9, to 8voidthe
grell,ter expense of unloading; and, after the repairs were, <JOmpleted, 11M finished loading, and sailed on her voyage. An average bond was given by the cargo own· ers to pay any average oharge thQt might be due from them.' On the facts, it being found that the ship was seaworthy when the loading began, and that the hole was made through some harbOr peril during the loading, he/,d, that neither the repair,nor ,the expenses ()f docking, nor any part of either, was a general average charge on the cargo, (1) because, notwithstanding the hole, there was no peril whatever to either the ship or cargo; (2) because there was no extraordinary expense incurred by the carrier, beyond that which devolved on, him' by law to pay, under his bnplied warranty of the lIeaworthiness of the, ship at the time of sailIng, and hence no'act of sacrifice on his part for the common safety; (8) that the case presented no analogy to that of repairs in a port of refuge, since in the'latter the general average allowance is founded solely on' a deviation, as an act of sacrifiee, made in order to avoid a common peril arising after the voyage had begun, and here there was no voyage hegun, and no deViation, peril, or sacrifice; and the 'libel wasdiamissed. . (Syllabus by the Oourt.)
In Admiralty. Libel to recover assessment under a general average bond. E. B. Convers, for libelants. RoUins Ledyard, for respondents. BROWN, J. On the 10th July, 1885, while the steamer Thorne Holme was lying at Union Stores, Brooklyn, loading with a cargo of grain, her fore.peak was found to be full of water, from a cause unknown. Before proceeding with the it was. necessary to repair her, and for that purpose to place her in the dry-dock. She was nearly fully loaded; and, to avoid the large expense of unloading and reloading the cargo, it was agreed that she should be docked with her cargo in her. The respondents were owners of the cargo, and were insured in the Atlantic Mutual Insurance Company. The arrangement of docking the vessel for repairs, with her cargo in her, was made upon consultation with the underwriters, and with their approval. Upon docking her, a hole, oval in shape, was fonnd through one of her iron' plates on the port bow, about nine inches by twelve. Repair was made by placing over the hole an iron patch the whole width of the streak, securely bolted, so as to make the ship as seaworthy as before. After the repair the londing was completed, and the vessel sailed upon her voyage. An average bond, dated 18th July, 1885, and approved by the underwriters, was executed by the respondents, which recited that, "through recommendation of survey, the vessel was put in dock, with the cargo in her, in order to save the expense incident to the discharge and the extra handling of the cargo, * * * by which means certain losses and expenses have been incurred, * * * which may, according to the usage of the port of New York, constitute a general average on the vessel, cargo, and freight;" and the respondents, by said bond, agreed "to pay their part of such loss, damage, or expense as should appear to be due from them, to be stated and apportioned, in aCcordance with the established usage and laws of this state, by Jacob A. Telfair or others, competent adjuster of marine losses." An adjustment was afterwards made under Mr. 'j)elfair's direction, by which the cargo was assessed for general average $816.05, for which sum this libel was filed. The answer denied that any claim of general average had
ilc§rned;' the defense on the original hearhlg being that the cause of the leak, originated on a prior voyage, before the loading commencedj and further; the repairs made were permanent repairs, and not temporary,JQrtbe"purpose of the voyage only. Objection was also made to the mode of adjustment. . 1. The cauSll oJtMleak. If the hole in the bow was made before loading was commenced, plainly, the cargo could not be l:iubject to any average charge for the expense of repairing it, since the carrier was bound to have loading pegan, or else take the risk of making his vessel seaworthy hersobefore sailing. At whatever time this hole was made, the forepeak, which was previously empty, must have been at once filled with water up to the water-line, and the trim and management of the vessel thereby once seriously affected. There is no direct proof either as to thecatlse 'or the time of the injury. There are circumstances on each side that I have found it impossible to reconcile satisfactorily, whichever conclusion be adopted. Without specifying these in detail, I find that the preponderance of probability is in favor ofthelibelants; that the hole was made while the vessel was loading, and probably upon the 10th of July" the day when it was discovered. The vessel was unseaworthy in that condition; and repair, either ,permanent or temporary,became necessary. As no negligence by the ship is shown to have been the causa of the injulY, and the specific cause is undiscoverable, the damage must be set ddwn to harbor perils. If, upon such facts, the case is entitled to be treated like one arising in a. port of refuge, sought in order to make necessary repairs of damages caused by a sea peril, then, accord,;, ing to the Jaw of this country, the docking of the cargo, as an expense substjtuted in place of unloading and reloading, would be a general erage charge,as well as merely temporary repairs of the ship. Hobson v. Lord, 92U. S. 397,407jTheQueen, 28 Fed. Rep. 75.5,760; Tlte. Joseph,ParweU,31 Fed. Rep. 844j;L'Amerique, 35 Fed. Rep. 835,846. Upon the original hearing that phase of the case was not considered. The attentionofthe court was not called to the question whether, even if the hoJe in the· bow was· made after the loading began, the case would or' .would not be within the principles of general average contribution; It was assumed that it would be. On the reargument, this question has has been exhaustively treated by counsel on f'ach side; and, after much consideration.· I have come to the conclusion that the case is not one of general average, but is excluded therefrom by several of the fundamental conditions of that doctrine, and that it would be the SaIne even if the repairs had been merely temporary, and the !cargo had been unloaded for the purpose of such repairs,. instead of being docked with the ship. No parallel case has been cited; but such analogies as the adjudicated cases afford seem to oppose any average contribution under circum.: stances like the present. There.are three characterisHcs in this case,all of whichsf'emto meta bevitaI.ln no case in.which a general average charge againsUhe cargo haabetln sustained have I found these threecir.. c.umstances all ,concurrillg, viz.: (1 ) The absence of any imminent peril eommgn to ship an4. cargo,und infact the, absence of any peril to either:
(2) The injury and conseq1.lent unseaworthiness happening before the vessel sailed, and while she was loading at her dock: (3) No act of sacrifice, 'properly so called,pr anything equivalent thereto, because the carrier's warranty of seaworthiness extended ,up to the time the ship sailed, and therefore bound him to make and pay for needful repairs up to that time, and all the charges incidental thereto. Repairing was, therefore; not an act of sacrifice. I must infer the absence of any peril toeither ship or cargo from the proved circumstances of the case, because there has been no suggestion of actual peril or danger to either, and because there is no indication of danger to either. The fore-peak was filled with water up to the water-line, but this was separated from the cargO by a firm and tight bulk-head; and although the ship was thereby rAndered unseaworthy for the voyage until repaired, and was obliged to pe repaired before sailing, yet both ship and cargo, so far as the evidence indicates, could have remained at the dock as they were, without injury and in safety, as long as the owner of either desired. The primary requisite for a general average charge is the existence of some common peril to be averted; next, some sacrifice voluntarily made, or some expense voluntarily incurred, by one part interest, beyond that chargeable to it by law, for the safety of the whole. The quantum of common danger necessary to justify a general average act, i. e., a voluntary sacrifice of a part for the safety of the whole, is not nicely scrutinized. When the sacrifice happens in the course of the voyage, the determination of the amountofdanger that requires it is left to the judgment of the master, to be exercised reasonably, and in good faith. Here the voyage had not commenced, and the master's characteristic duties had not begun. The nature of the requisite danger is not that of mere probabllil pecuniary 1qss, such as delay in reaching a market, or loss of expected profits, but some threatened phY8ical injury. "PerWuli imminimtis evitandi gratia," says the ancient statute of Marseilles, (Emerigon, c. 12,§ 39, p., 603,} and such was the Roman law, (1 Pardess. Lois Mar. 107;) Lownd. Av. (6th Ed.) 352. And in text-books anddecisions this primary condition of It common peril threatening the safety of the whole is constantly reiterated, (Goud. Gen. Av.; 2 Lownd. Gen. Av. 39; 2 Arn. Ins., 6th Ed., 855; per STORY, J., in I'MUrance Co. v. A13h1J'fJ, 13 Pet. 331, 339; GRIER, J., in Barnard v. Adams, 10 How. 270, 303; Hobson v. Lord, 92 U. S.397, 399.) In the case last cited, Mr. Justice CLIFFORD says, (page 399:)
"Property not in peril requires no such sacrifice, nor that any extraordi nary expense should be .incurred. '" '" '" Where there is no peril, such sacrifice presents no claim for such a contribution; but the greater and more imminent the the more merHorious the claim against the other interests. if the sacrifice was voluntary, and contribnted to save the adventure from the impending danger. to which all the interests were exposed." .
. It is to mtlItiply citations. They all import an impending danger pbysical injUry as the primary condition and initiative of a. generalav:erllgc charge. The mere completion.pfthe voyage, wbl3l'e that ',.,.... "no way.' tQ the safety of the cargo, is not suffici,ent 1:. '.'
J -." . '.
for a general average chargE!. was by the supreme courtinthe cll,se v.AshbJf,18 Pet. 331, and thtl point"was neceSsaTily involved in: the for ,contribution was there allowed fat' a totlilJdsg of the'ship by voluntary stranding, although the voyage, also, was wholly lost. STORY, J., says, (page 340:) "It is the deliverance-from animminerit impending peril '" * '" which c<>nstitutes the essence of the claim:" . The Roman law; he says, shows this. ' II In truth," 'leW 'is the safety of the,property, and not of the voyage, true foundation of general average. If the whole cargo were ,thrown overboard to insure the safety of the-ship, the voyage might be nevertheless the ship must contrib';'lte to the jettison." MATT.HEWS, J., in &nsmith v. The J. P. Donald8on; 21 Fed. Rep. 671, 673. Chancellor Kent says: "Before contribution takes place, it must appear 'that the goods sacrificed were the price of safety to the rest. 1I . 3 Comm. *234·. Royal Mail S. P. Co. v. English Bank, 19 Q. B. Div. 362, 371. In the case of The Alcona, 9 Fed. Rep. the vessel was stranded on the bank of a river, and lay there without danger of serious damage to herself or carg9, it was accordingly :held'that charges' for unloading a part of the ctirgd in order to lighten and remoVe her, and for towage services, were not general' average. In .1}Amerique,35 Fed. Rep:'835, 838, that case was followed by this court. So in the case of Neabittv. Lushington, 4 Term R. 783, where a tumultuous'bandof famished persons took possession of a vessel in order to obtain.herWheat and coals,an,d the captain was comIlelIed to sell the cargo at a sacrifice in order to regain possession,' 'Lord KENYON held that that waS not a case of a general' average sacrifice, "because the whole advent"no pretense * * * that ure wasuever in jeopal'dy,"there the persons who took the corn intended any injury to the ship, or to any other partofthe cargo butthecorn, whidh they wanted ** * to pre,vent their suffering." There could,therefore, be no contribution from the It is upon the same groundthnt the recent English cases raf'Gse to extend general average charges in aport of refuge, sought in consequence of a sea peril, beyond the time of unloading the ship, because when that is accomplished the cargo is no longer in danger. SVeJn8den v. Wallace, 13 Q. B. Div. 69,72-85, 91; Hallett v. Wigram, 9 C. B. 580; Royal Mail S. P. 00. v. English Bank, 19 Q. B. Div. 362. The practice in this country, largely st'lstained by our courts, is to include in the general average expenses of a port of refuge all extraordinary expenses until the ship regains the high seas, including reloading, and such repairs to the vessel as are merely temporary, and for the purposes ofcompMing the Hobson v.Lord. supra; The J08eph Farwell, 31 Rep. 844, and cases therecftlild. The libelant contends that the present case is,analogous to that class of cases, and that the principles applicable to the Thorne Holme, in this case, are the same as if she had arrN,ed 'along-side oill. wharf in a port of refuge, with a similar hole in her bow;abd had taken same measurflS for continuing her voyage. But this contention overlooks the ground upon which such 'charges in a port of refuge could be sustained at all, viz., a previous imminent common
BOWRING ". THEBAUD.
perU, happening during the .prosecution of the voyage, and a deviation to the port of refuge as an act of sacrifice, in order to escape the common danger. These circ.umstaJlces would constitute the foundation, and the sole ground, of the general average claim; but, in the present case, every one ofthese circumstances is wanting. The Englishaud American courts regardsllch deviations from the voyage, though caused by a sea peril, as an extraordinary expense, not within the contemplation of the contract of carriage, or the price paid therefor; and, being voluntarily incurredby the master to insure the common safety of ship and cargo from an imminent common danger, 'such charges are treated as general average. The American courts, contrary to the later English decisions, eXtend the general average charges ina port of refuge, under such circum'stances, to all expenses, save permanent repairs, until the ship regains the high seas, on the view. that they are all parts of one .continuous operation attached to and consequent on the original act of deviation or sacrifice. But this difference touches one of the most debatable subjects in the maritime law, about which there have been for centuries conflicting views, and in' which the practice of maritime nations is very diverse. 1 Pars. Ship. &: Adm. 382, 385. Whether the very liberal American practice tests on any sufficient principle, whether it is likely to be modified, as the earlier English decisions have been modified after most careful discussion, or whether even all port of refuge expenses made necessary by sea perils should not be borne by the carrier, as is required in somemaritim8 nations, and as Lord BLACKBURN, in the House of Lords, seemed inClined to think should: be the law, (Svendsen v. Wallace, L. R. 10 App. Cas:, 404, 420,) need not be here considered,because, as above stated,allportof refnge cases presuppose a voyage begUn, and a common peril to ship and cargo arising in the' oo\use of it, to escape which the. deviation or sacrifice was mad.. Here there was D:either voyage nor peril nor deviation. The analogy wholly fails in the present case; 09r could our doubtful practice as to the broad extent of enforced contribti:' tion in port of refuge cases,where there has been ah escape from a sea peril, with any propriety ,be still further extended to port charges· ctured before the voyage began, 'where there has been no peril, $d· no escape; 2. Under any view of thelaw of general avemge, expenses incurred, in order to be treated as ·a sacrifice, must be such as form no part of the carrier's own obligation. Lownd. Av. 147; 1 Pars. Shipp. & Adm. 382; Gour!. Gen. Av. 18. This is the very point where the authorities divide as to the right of the carrier to make a general average charge for any port of refuge expenses .caused by sea perils. Those who disallow such charges hold that the putting into port for safety, and the repair of sea damage, with all its incidents, are parts of the carrier's own risk, included and paid for in the contract of carriage; while the opposite view is that such acts and expenses, save permanent repairs of the ship, are not within the ship's undertaking, but are within the exceptions of perils of the sea, and therefore extraordinary, and outside of the carrier's duty to pay. In the
'case of Dupont de Netndursv. Vance, 19 How. 162, 172, Mr. Justice CURTIS says: . · ' , '., .. lithe saCl,mce be to enable the vessel to perform the voyage by paying what the owners are ,bound to payto complete it, the chargeis on the vesand its ownerS. nit be made to relievethe adventure from a peril which has on all the ,engaged in it, the risk of which peril was not assumed by the carrier, tJ,le charge is to be borne proportionately by all the interests. II Ilqw can it be .contended in the present case that the risk' of any aeddentto the ship only that might render her unseaworthy while loading, al)d pefore breaking ground, was nota risk assumed by the carrier? It is an Implied warranty in carriage by sea that the ship shall be seaworthy ,at:the tiqle she sails. "When she first sails on the voyage." says Lord MANSJifELD in Woodbridge, 2 Doug. 781, 788. Mac!. Shipp. 400; 418; Marsh. Ins. (5th Ed.)109; 2 Am· .Ins. 652; PurvU v. Tunno, 2 Bay, Cohn v. DavidBon, 2 Q. B. Di\l'.455; The Eugfme VeBta,28 Fed. Rep. v. OaBWell, 20 Fed. 'Rep.,249, 252; Crow v. Fq,lk, 8Q. .8.46'7; ,Valente v. Gibbs, 6 C. B. (N. S.) 270. The risk of such"1'!:cqidents to the, ship as this, whjle loading, falls, therefore, upon consequently the expense of repair, whether temporary or permal)ept, as well as all the incidental charges connected with it. This was not, therefore, an extraordinary expense, within the meaning of the cargo, or for its law of general average,inqurred forth6 benefit safety, Qf to rescue itJrom peril. It was one of the carrier's ordinary :l'isks, whicp he alone was bound to bear.' H;e could not undertake the voyage.}Vithout making his ship at the·time, she sailed; and his, warranty of seaworthiness to the cargo owners bound him, all charges witllout calling on, the. cargo for con.triputi()n.. T4erepnir,of the shin in tbis case waS,llot in' itself, theresacrifice,:a.nd there.was nO other such·act. In the case of ;fimol;l a vessel at 890c,k before·'bhecommencement of the voyage, average,.has been allowed,there was, not only danger of ship and cargo, but also some volun.taryact of sacrifice pr or incurred to rescue fl'om that danger, such. as scut. tling, jettison., salvage services, etc., which caused the charge that was disas g.enera! average. Here .nothing of that kind existed. the above reasons a decree should be.entered for the respondents, WIth costs.
FARMERS'NAT. BANK V.:M'ELHINNEY.
FARMERS' NAT. BANK V. McELHINNEY
(DistrWt-Court, S. D. Iowa, E. D. June,1890.)
Under Rev. St. U.· S. § 563, giving- district courts jurisdiction "of all suits by or -agai.nst ally association, established under any law providing for ,national banking Bllsociations, within the district for which the court is held," and Act Congo Aug. 18, 1888, § 4, making national banking associations, for the purpose of all actions, citizens of the state wherein they are located, "and in such cases the circuit and district .ceurts shall not have jurisdiction other than such as they would have in cases between individual citizens of the same state, " district courts have no jurisdiction of an action on-a promissory note, brought by a national bank in a district tJ:1.an tJ:1.atin which the bank is located.
AGAINST NATIONAL BANKS.
-At Law. Action on a promissory note, submitted on question of jurisdiction. G. S. Skinner and W. B.Collins, for plaintiff.
SHIRAS,J. The plaintiff corporation is a national bank, carrying on its business at PrincetoJ;l, in the state of Illinois, and the defendants are citizens of Iowa, residing in Louisa county. Under the statutes now in force, has the district court,under any circumstances, jurisdiction of an action by a national bank to recover a debt due upon a promissory note, when sucb action is brought in a district other than that in which the banking association is located? - In section 563 of the Revised Statutes it is provided that the district courts have jurisdiction "of all suits by or against any association, established under any law providing for nation,albanking associations, within the.district for which the court is held." By the act of July 12, 1882, itwas enacted that the jurisdiction for suits by or against any national bank, except af:l to suits between the United States, its officers and agents, and the bank, should be the same, and not other than the jurisdiction by or 'against banks noc organized under the laws of the United States. Sectiqn 4 of the act of August 13, 1888, provided "that all national banking associations, established under the laws of the United States, shall, for the purposes of all actions by or against them, real, personal, and all suits in equity, be deemed citizens oftbe states in which they Itrerespectively located; and insuqh cases the circuit and district courts shall not have jurisdiction other than such as they have in cases between individual citizens of the same state." According to the provisions of this section the plaintiff in this case is to be deemed to be a citizen of the state of illinois, and, the aeo, tion being brought in a district other than that in which the bank is located, the test of jurisdiction in the district court is just the same as it would be in case the plaintiff was a natural person. I do not understand it to be claimed that A. B., a citizen of illinois, can bring an action on a promissory note against C. D., a citizen of Iowa, in the district court of the United States for either district of Iowa. This being so, it seems to me that the act of 1888 was intended to make one rule determine the jurisdiction, or, in other words, it was intended to give to a v.42F.no.14-51