The Eliza Lines
| Decision Date | 20 April 1900 |
| Docket Number | 368. |
| Citation | 102 F. 184 |
| Parties | THE ELIZA LINES. |
| Court | U.S. District Court — District of Massachusetts |
Edward S. Dodge, for Black and others and Bank De Genes.
John Lowell and James A. Lowell, for Andreasen.
Lewis S. Dabney and Frederic Cunningham, for Ward & Co. and Darrach.
The question before the court is that of confirming the report of the commissioner appointed in accordance with the opinion passed down on April 3, 1894. (C.C.) 61 F 308. The commissioner has, in the main, pursued the course marked out in that opinion, and his report is of the utmost value to the court in disposing of the case. No exceptions have been filed except by James E. Ward & Co. Near the close of our prior opinion, we directed that all things decreed by the district court should be followed except as otherwise provided for or modified by us. This had relation to what was in fact decreed, and it had none to the report of the assessor in that court, estimating that the amount to be contributed for general average was $4,818.01. This estimate was not confirmed by the district court, nor made the basis of any decree. The details of the assessor's estimate were stated and accepted by the commissioner, and they include, 'Commission on advancing and paying out general average, five per centum, $224.67. ' This is now excepted to on the ground that this amount was never in fact paid by the owners of the vessel. The commissioner also included in his estimate of the amount of general average charges an item of $319, supposed cost of reloading the cargo at Boston. These two items stand in the same general category, and will be referred to again.
The cargo was sold at Boston, the record shows, for the gross amount of $1,825. From this were paid the charges of sale amounting to $116.61, which, of course, are no part of the general average, leaving $1,708.39, which was paid into the registry of the court as net proceeds. The cost of discharging the cargo, pumping the vessel, wharfage, and storage, allowed by the district court, was $1,051.09. Of this the district court apportioned to the cargo $797.65, and to the vessel $253.44. The $797.65 was paid out of the registry, leaving net $910.74 therein, as proceeds of the cargo. That court allowed the vessel pro rata freight to the amount of $1,450, and directed that the $910.74, net proceeds of the cargo in the registry, should be applied towards the payment of freight. Thus it was, as said in our prior opinion, that the proceeds of the cargo were applied to the payment of freight and general average, because the charges for discharging cargo, pumping, storage, and wharfage were of the latter class. The proceeds of the cargo thus applied to the payment of freight became, therefore, the property of the owners of the vessel, and were consequently again applied by the district court towards the payment of salvage on the vessel and of freight. Following strictly the terms of our previous opinion, we should confirm this application made by the district court, and regard so much of the proceeds of the cargo as amounted to $797.65 as applied towards general average charges, and $910.74 towards the payment of freight. We will refer to this again.
The district court decreed that the salvors recover against the vessel and her cargo $750 for salvage, and also their costs of suit, taxed at $313.61. It apportioned these sums between $2,250, the valuation of the vessel, and the $910.74 which the court applied towards payment of freight. If its decree in this particular should be literally construed, the salvors would have been allowed nothing on account of the cargo. Therefore, in our earlier opinion, we held this to be substantially an allowance for the salvage of the vessel and cargo only, and we directed an additional allowance for salvage services and expenses touching the freight, payable only from sums to be realized from James E. Ward & Co.
The main issue raised by the exceptions to the commissioner's report grows out of this expression in our former opinion with reference to adjusting general average:
This was stated very briefly, and the court now perceives that it would have been better to have stated it more fully. However, a careful consideration of the principles expressed in the opinion, on which it proceeded, leaves no doubt as to its proper interpretation. We held that, in the eyes of the law, the charterers, James E. Ward & Co., without right, broke up the voyage at Boston, when they should have permitted the vessel to reload the cargo, and deliver it at Montevideo or Buenos Ayres, according to the terms of the charter party. It followed, as all must see, that the charterers were liable to make good in all respects as though the voyage had been completed. This, of course, cannot be done in form of in specie, but it can be accomplished in substance. Therefore, the charterers were decreed to pay net freight, estimated on the principles pointed out in the opinion, and also they were, of course, liable to contribute towards the general average on the same principles on which they would have contributed if the voyage had been completed, and the general average computed at the end of the voyage, as it would have been in due course. Very likely, a literal following out of the consequences of this proposition would have required us to direct that the general average should be adjusted according to the customs prevailing at the river Plate; but the voyage was in fact broken up at Boston, and the adjustment of general average is a question of convenience, rather than of theory. The rules are largely artificial; and, as it is impracticable, from the nature of the thing, to do exact justice, the whole matter of general average is judicium rusticum. There is nothing in the record, and nothing was brought to our attention, to show that the practical results of an adjustment according to the customs at the river Plate would substantially differ from those of one made according to the customs at Boston, notwithstanding we are quite of the impression that, in at least two particulars, an adjustment according to the customs prevailing at Boston would be more favorable to James E. Ward & Co., as will appear from what we will say further on. The justice of our propositions would be illustrated by taking the diversities in practice as shown in a general way by Gow, Ins. (1895) at pages 304 and 305, and undertaking to construct an adjustment throughout according to any particular custom there explained. How far, as applied to this case, modifications in certain directions required by any customs there explained, other than those of Boston, would be offset by other modifications, neither party has presented anything which will enable us to determine, or to cause us to hold that the net result would be materially modified. On the whole, we could see no reason why we should complicate the computations in this case by referring the parties to the customs of Buenos Ayres or Montevideo, when the customs of Boston were under our hands. The commissioner has followed our directions in this respect.
The commissioner makes the general average charges $6,434.10. The only items questioned are those of $224.67 and $319, already referred to. Although these items which ordinarily enter into adjustments of general average, yet there is no equity in compelling contribution for what was in truth saved to the vessel by the fact that James E. Ward & Co. took possession of their cargo at Boston. Of course, the item of $224.67, which appeared in the assessor's report to the district court as a 'commission for advancing and paying on general average five per centum,' was not in fact paid in that particular form, because there was no general average adjustment. Nevertheless, the vessel was compelled to make the repairs which entered into the hypothetical adjustment. The commission was computed by the assessor in the district court on only the general average items which went into the cost of repairs, after the deduction of one-third for new. It covered no part of the items added to general average by the commissioner, which include $1,051.09, the cost of discharging, pumping, wharfage, and storage. As the vessel was foreign, and as she in fact made the repairs estimated by the assessor, it is to be assumed from common knowledge that she, in some form, paid the commission allowed. On the other hand, the item of $319 was clearly not paid, and, on a correct adjustment, should be deducted.
We come to the contributory values which the commissioner placed on the vessel, freight, and cargo. James E. Ward & Co. object that he has taken the value of the whole cargo, yet that he should have deducted 45 per cent. thereof, which they say was appropriated in Boston to the use of the salvors. Under some circumstances, salvage becomes a matter of general average but, under the circumstances of this case, it constitutes particular averages against the vessel, cargo, and freight severally. Dix. Ins. (2d Ed.) 102; Lown. Gen. Av. (4th Ed.) 149; Gow, Ins. 285. As, however, these particular averages arose out of the peril which rendered necessary the general average, they are to be deducted in ascertaining contributory values. It is only necessary for this to refer to Phil. Ins. (5th Ed.) Sec. 1402. The reductions, however, would not be theoretically 45 per cent., nor would they be from the cargo alone. The values of freight and...
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