Sonsmith v. The J.P. Donaldson

• Citation: 21 F. 671
• Parties: SONSMITH and others v. THE J. P. DONALDSON. [1] SLYFIELD v. SAME. (FN1)
• Decision Date: 01 September 1884
• Court: U.S. District Court — Eastern District of Michigan

21 F. 671

SONSMITH and others v. THE J. P. DONALDSON. ^[1]

SLYFIELD v. SAME. (FN1)

United States Circuit Court, E.D. Michigan.

September, 1884

Moore &amp Canfield, for libelants, appellants.

Maynard & Swan, for claimant, appellee.

MATTHEWS Justice.

These two libels were consolidated in the district court, and dismissed on the hearing. A decree for the libelants was prayed for on two grounds: First, for a loss of the barges by the fault of the propeller in towing the barges on a voyage from Buffalo to Saginaw. Second, in case no fault in towing was proven, then for a proportion of the value of the barges lost, upon the principles of a general average, on the ground that they had been voluntarily cast off and lost during a storm, for the purpose and with the effect of saving the propeller.

As to the first ground, the evidence justifies and requires the conclusions of the district court. There does not seem to be sufficient ground to impute to the propeller any negligence or failure of duty. If any error was committed, it was a mistake of judgment in the exercise of a discretion necessarily vested in the master of the propeller, and which if a contrary decision can be supposed to have resulted more favorably, constitutes neither want of skill nor want of care. The loss of the barges, under the circumstances, must be regarded as resulting from the perils of navigation, and for which, under the contract of towage, the propeller cannot be held responsible. It is not necessary to recapitulate the proofs in support of this conclusion. They are fully stated with the reasons justifying it, in the opinion of the learned judge of the district court, as reported in 19 F. 264, in which, upon this part of the case, I fully concur.

There remains, however, the more difficult and doubtful question whether the libelants are entitled to a decree for a contribution from the appellee, upon the principles of general average, on the ground that the loss of the barges was a sacrifice voluntarily made for the safety of the propeller. The facts and circumstances material in the investigation of this, as a question of law, are not disputed, and are in substance, as follows: The J. P. Donaldson was a steam-propeller, with a crew of 16 officers and men, built for the carrying trade, not an ordinary tug, having no cargo on board on the voyage, during which the loss complained of occurred, but her fuel, amounting to about 120 tons. She had in tow three barges, the Bay City, the George W. Wesley, and the Eldorado, in the order named, on a voyage from Buffalo to Saginaw or Bay City. The Bay City was partly laden with coal, the others were light. The George W. Wesley was a schooner barge; the Eldorado was an old propeller bottom. Neither of them had any power of self-propulsion. The contract of towage was for the voyage, the propeller to receive for her service a proportion of the freight earned by each barge. When near Erie, Pennsylvania, in a fierce storm, having been driven by force of wind and waves, and in a blinding snow, they were drifting near the rocks on shore and in imminent peril of stranding. The propeller, having signaled her tow to that effect, cut the towing line and cast them off. They were driven on shore and wrecked. The propeller at once put into the harbor of Erie in safety. It is a reasonable conclusion that if the propeller had not cut loose her tow, all would have gone ashore together.

The libels in the present cases do not pray specifically for an adjustment of a general average loss. On the contrary, they pray for a decree against the propeller for the full amount of the loss, on the ground that it resulted from the breach of duty on the part of the propeller in not properly performing the contract of towage. But, under the prayer for general relief, it is competent for the court to pass such decree as may be required by the proof in the record, although not fully and precisely stated in the libel. In this particular the case of Dupont v. Vance, 19 How. 162, is quite in point. And in that case, speaking of jettison of cargo, Mr. Justice CURTIS, delivering the opinion of the court, said:

'If it be made to relieve the adventure from a peril which has fallen on all the subjects engaged in it, the risk of which peril was not assumed by the carrier, the charge is to be borne proportionably by all the interests, and there is a lien on each to the extent of its just contributory obligation.'

In the case of Columbian Ins. Co. v. Ashby, 13 Pet. 331, in the learned opinion of Mr. Justice STORY, it is shown that the rule as to general average, derived to us from the Rhodian law through the Roman jurisprudence, was not confined to the case of jettison of cargo, although that was the illustration stated in the digest: 'That the case of jettison was here understood to be put as a mere illustration of a more general principle, is abundantly clear from the context of the Roman law, where a ransom paid to pirates to redeem the ship is declared to be governed by the same rule. ' And the doctrine, as received among all maritime nations, was stated to be-- 'First, that the ship and cargo should be placed in a common imminent peril; secondly, that there should be a voluntary sacrifice of property to avert that peril; and, thirdly, that by that sacrifice the safety of the other property should be presently and successfully attained.'

It was generally admitted that in case of voluntary stranding of the ship, if the vessel was saved, the principle of general average applied; but it was contended by some that it was not so if the vessel was lost; and such was the opinion of Emerigon, who said: 'But it will be a general average if the stranding has been made for the common safety, provided, always, that the ship be again set afloat; for if the stranding be followed by shipwreck, then it is, save who can.' 1 Emer.Ins.c. 12, Sec. 13, p. 614. But, in opposition to this opinion, it was decided by the supreme court that the total loss of the ship did not prevent the application of the principle, saying, (page 340,) 'it is the safety of the property, and not of the voyage, which constitutes the true foundation of general average;' and, in another place, (page 343,) 'for the general principle certainly is that whatever is sacrificed voluntarily for the common good is to be recompensed by the common contribution of the property benefited thereby. ' The same result had been previously reached by Mr. Justice WASHINGTON, in Caze v. Reilly, 3 Wash.C.C. 298.

In Barnard v. Adams, 10 How. 270, it was said that--

'In order to constitute a case for general average three things must concur: (1) A common danger,-- a danger in which ship, cargo, and crew all participate,-- a danger imminent and apparently 'inevitable,' except by voluntarily incurring the loss of a portion of the whole to save the remainder; (2) there must be a voluntary jettison, jactus, or casting away of some portion of the joint concern for the purpose of avoiding this imminent peril, periculi imminentis evitandi causa, or, in other words, a transfer of the peril from the whole to a particular portion of the whole; (3) this attempt to avoid the imminent common peril must be successful.'

In that case the principal question arose upon the proposition urged in argument, ' that if the common peril was of such a nature that the jactus or thing cast away (which was the ship) to save the rest would have perished anyhow, or perished 'inevitably,' even if it had not been selected to suffer in place of the whole, there can be no contribution. ' But this was negatived, Mr. Justice GRIER, delivering the opinion of the court, saying that--

'It is a denial of the whole doctrine upon which the claim for general average has its foundation. * * * The jactus is said to be sacrificed, not because its chance of escape was separate, but because of its selection to suffer, be it more or less, instead of the whole, whose chances of safety, as a whole, had become desperate. The imminent destruction of the whole has been evaded as a whole, and part saved by transferring the whole peril to another part.'

In the case of McAndrews v. Thatcher, 3 Wall. 347, Mr. Justice CLIFFORD, delivering the opinion of the court, said:

'Natural justice requires that, where two or more parties are in a common sea risk, and one of them makes a sacrifice or incurs extraordinary expenses for the general safety, the loss or expenses so incurred shall be assessed upon all in proportion to the share of each in the adventure; or, in other words, the owners of the other shares are bound to make contribution in the proportion of the value of their several interests. Courts universally admit that the Rhodian law was the parent of maritime contribution, although, in terms, it made no provision for any case of general average, except for that of jettison of goods as the means of lightening the vessel. But the rule, as there laid down, has never been understood as being confined to that particular case, but has always been regarded as a general regulation applicable in all cases falling within the principle on which it is founded.'

Therefore it has been extended, as in that case, to instances of involuntary stranding of the ship, when extraordinary expenses are incurred in the successful relief and rescue of both ship and cargo, menaced by a common destruction, but only for such as are incurred while the community of interest continues. If the cargo, as in that case, has been separately saved, and has been severed from its connection with the ship and its peril, subsequent expenses incurred for the benefit of the ship alone, and not part of a continuous series undertaken originally on behalf of both interests, are not the...