cord with the previous provision that the charterers should have the whole benefit of the ship's cargo capacity, and it was intended to exclude the owner from any benefit from the carriage of cargo except with the charterers' consent. Manifestly the charterers have never consented that the owner should have the benefit of this freight. My conclusion is that upon the terms of this charter the owner has no legal right to the freight in question; first, because the goods were carried within the "full reach of the cargo capacity of the ship"; and second, if this were doubtful, the acquiescence of the owner in the respondents' claim of right, would preclude any subsequent recovery, notwithstanding the protest, in the absence of any agreement, express or implied, to submit the question for future decision. The libel should be dismissed with costs.
THE WORDSWORTH. (DIstrict Court. S.
D. New York. April 6. 1898.)
GENERAL AVERAGE-ApPARENT DANGER-OPENING SLUICES- DAMAGE TO CARGO.
Voluntary damage to cargo to avoid an apparent danger menacing both ship and cargo is sufficient to support a general average. At sea the W:s fore-peak was found suddenly filled with water. believed by the master and officers to come from a hole below the water line, which. if true, would prevent the voyage from being prosecuted. as ship and cargo would be in danger. To make the necessary examination of the fore-peak, the sluices were opened to the next compartment, and the water allowed to run through It. and some flour stowed there was necessarily damaged thereby. The leak was by that means discovered to be in the hawse pipe only. It was repaired, and the voyage proceeded with. Held. that the water damage to the flour was a proper general average charge.
Evarts, Choate & Beaman (Harrington Putnam, of counsel), for libelant. Owen & Sturges, for claimant. BROWN, District .Judge. The above libel was filed to enforce a claim for general average contribution, on account of the alleged sacrifice and damage of the libelant's cargo to the amount of $3,500, on board the steamship Wordsworth, upon a voyage from New York to Rio de Janeiro in October, 1895. The answer, while admitting the loss and the damage, denies that the loss was incurred for the safety of the ship and cargo, or that it was a proper subject for a general average contribution. The libelant's cargo consisted of flour, of which 4,000 barrels were stowed in the forward No.1 hold. The steamer left Sandy Hook about noon on October 12, 1895. She soon met a heavy and confused sea, lasting a day and a half, and shipped much water over her bows. At 5 o'clock in the afternoon of October 13th, the carpenter reported the fore-peak full of water. This compartment held 150 tons. It had filled some time after noon of that day, when it was examined and found dry. On immediate inspection of the 'ports, none were found broken, and no cause for the heavy leak could be discovered. The
master consequently formed tbe jUdgment that a"b(lle bad been stove in f(lr'ward:, He. testifies that at that time 'there was a "strong southeastwind, half a gale. We had, be-says,aheavyicross sea and I was nearly paralyzed, knowing that mJ'l sbip was in. good condition wben we left. I was perfectly satisfied -that there was nothing more that mortal man could do to makeber more perfect. I said to myself, it must be below tbe water, the damage. lthen said to myself, knowing thatth.e upper part of the vessel was in a good condition, if it is, as I suppose, a bole below, I must open all tbesluices and let the water run to tbe engine room where tbey bavepowerful pumps, and put back to New York." The sluices of tbe collision· bulkhead were accordingly opened, as tbere was no otber possible method of getting the water out of tbe fore-peak. The consequence of opening tbese sluices was tbat, altllough the pumps in No.1 compartment were kept working, about a foot of water unavoidably accumulated in tbat compartment, whej'e the libelant's flour was stowed, and the damage in question was tbus incurred.' The master knew when he ordered the sluices opened, that <lome water damage would be thus caused; but believing that there was a hole forward, he considered that the safety of the ship required this to be done as "the only way to save the ship," as he stated on his first examination. He then further stated that with this amount of water in tbe fore-peak, and the sbip plunging in heavy weather, the collision bulkh<..'ftd, he thinks, would have carried away; and the ship with a hole forward as he then believed, "would have been in great danger." There can be no doubt that be supposed the leak had arisen from a hole forward. It was under such circumstances, and upon that judgment formed at the time, that this damage was voluntarily incurred by opening the sluices. When the water by this means had been reduced in the fore-pea k sufficiently to allow persons to go down and examine in the inside, it was found that the leak arose from a break in the port hawse pipe, and tbis break was soon repaired. Tbe master in his testimony accordingly adds:
"Then there was no necessity to open the sluices and let the water go Into the engine room, and I could have proceeded to BraZil In that condition, provided tbe bulkhead had held on. It might not In the swash of the sea."
Although 'the oft]cers, when subsequently testifying in the present erise, stated that tbe safety of tbe ship was not in fact involved, and that tbe only of the breaking down of the collision bulkhead, if the water in the forepeak had not been lowered, would have been merely greater damage to the cargo in No.1 compartment,yet it is plain that this,testimony is all based upon the facts ascertained after the act of sacrifice had been done and the loss incurred; and that the facts could.not have been. except by means of that very act of sacrifice, nor could the vessel have been put into such a condition ohippai'ent safety as would permit the prosecution of the voyage. The first officer says that, if master, he "would not bave proceeded on the voyage without finding out where the break was"; and that there was no other way otflnding out than by opening the
INDEMNITY MUT. MARINE ABBUR. CO. V. UNITED OIL CO.
sluices. The opening of the sluices was, therefore, a necessary con· dition of any further prosecution of the voyage, and the loss attending that act was a sacrifice in the interest of all concerned. The judgment formed at the time when the act was done as respects the danger to all, and the necessity ()f opening the sluices very clearly appear not merely from the master's first testimony above referred to, but also in the final testimony of the first officer,.who states distinctly: "I supposed it would be for the safety of the ship; but not as it proved afterwards." In other words a situation of imminent danger to the whole enterprise was believed to exist, and did apparently exist, such as apparently required this sacrifice to be incurred; and it was upon that judgment and belief that the sacrifice was made, and made, as supposed and understood at the time, necessarily in the interest and for the safety of all concerned. This is sufficient to support a general average charge, where the judgment of the master was in good faith, as is here evident, and was formed upon reasonable grounds. In such cases the master, as the authorized agent of all interested in the adventure, acts in behalf of aU, and binds all to contribute for the sacrifices made for the common benefit, even though his act may turn out to be a mistake. This principle was unequivocally declared by the supreme court, as l'espects a jettison, in the case of Lawrence v. Minturn, 17 How. 100, 110. In Hobson v. Lord, 92 U. S. 397, 403, it is also said that all interests are bound to make contribution "if it app that the ars expenses or sacrifices were induced or occasioned by an impending peril apparently imminent." Other instances of the application of this principle are the allowance of a general average charge for a jettison made through appre· hension of an enemy mistakenly supposed to be bearing down upon the vessel; or for a voluntary stranding resorted to in order to avoid an apprehended greater disaster just before a sudden and unexpected cessation of a storm, so that the stranding was in fact unnecessary, though at the time judged by the master to be necessary. The doctrine above set forth is sustained also by the general authorities (Oix. Ins. 121-123; Gour!. Gen. Av. 11, note), and requires the allowance of a decree for the libelant with costs.
INDEMNITY MUT. MARINE ASSUR. CO.· LIMITED, OF LONDON, T. UNITED OIL CO.
(District Court, S. D. New York.
MARINE INSURANCE - MEMORANDUM CLAUSE PAROL EVIDENCE.
July 6. 1898.)
A marine polley by a memorandum clause for an extra premium agreed to cover "extraordinary leakage, loss to be paid by the company if amounting to 3 per cent. of the amount Insured." The application was through a broker, for a broad polley to cover all risks "Without qualification ail to how the leak was caused." The insurer knew this and agreed to issue a polley in the form asked for; and subsequently issued the memoran\lunr clause as above stated. HelrJ. that the language used nat-