The San Fernando v. Jackson

• Decision Date: 18 March 1882
• Citation: 12 F. 341
• Parties: BARK SAN FERNANDO v. JACKSON & MANSON. [1]
• Court: U.S. District Court — Eastern District of Louisiana

12 F. 341

BARK SAN FERNANDO v. JACKSON & MANSON. ^[1]

United States Circuit Court, E.D. Louisiana.

March 18, 1882

George L. Bright, for libellants.

Thos Gilmore & Sons, for defendants.

PARDEE C.J.

This suit is brought by a libel in personam, to recover the share due by defendants in a case of general average. The record shows a proper case for general average, and that on the arrival of the bark at this port the cargo was delivered on an average bond. The only questions raised in the case are (1) As to the jurisdiction of the court; and (2) as to the amount due. I have held the case for some time for consideration of the question of jurisdiction. Since the decision in Ins. Co. v. Dunham, 11 Wall. 1, there seems to be no doubt that the admiralty courts have jurisdiction in all cases of maritime obligations. And that general average comes under the head of maritime obligations there cannot be much question. In fact, there is no doubt that the claim for general average is a lien enforceable in admiralty on the cargo saved until the delivery of the cargo and the real question is whether the jurisdiction remains after the lien is lost by delivery, so that the claim may be enforced in personam against the consignees.

The obligation of the cargo to contribute, in a proper case of general average, is a maritime obligation for which the cargo is bound, but not the consignees. When the cargo is delivered there is an implied obligation, or, if a bond is taken, an express obligation, on the part of the consignees to contribute the share due by the cargo so received by them. Is this last obligation a maritime obligation? In Cutler v. Rae, 7 How. 729, it is clearly decided not to be a maritime contract. It is said:

'The owners of the goods is liable, because at the time he receives the goods they are bound to share in the loss of other property by which they have been saved, and he is not entitled to demand them until the contribution has been paid; and as this lien upon his goods has been discharged by the delivery, the law implies a promise that he will pay it. But it is not implied by the maritime law which gave the lien. It is implied upon the principle of the common-law courts, upon the ground that in equity and good conscience he is bound to pay the money, and is therefore presumed to have made the promise when he received the goods.'

It would seem that where the consignee receives the goods and gives a general average bond, the express contract takes the place of, and stands upon the same footing as, the implied obligation referred to in Cutler v. Rae. So that, if ...