Meech v. Robinson

The opinion of the Court was delivered by Kennedy, J. — The case before us does not seem to come within the principle of any of the cases piled by the counsel for the plaintiffs. Sims v. Gurney, (4 Binn. R. 513,) has been relied on. It would be sufficient, however, to say that that case was not one where the ship was wrecked, or any apprehension entertained that she was in danger of being so, but a case merely where she, as it was firmly believed, about to be unavoidably driven on shore, without the least risk of being wnrecked by it, was, for the purpose of conducting her to a place where the crew and cargo alone, not the vessel, might be saved with greater certainty, voluntarily stripped of her masts, together with the sails and rigging appertaining thereto. It may also be observed, that the correctness of the decision in this case has been questioned ; and the authority of it, though no ways applicable to the present case, shaken at least, if not overruled by, Walker v. U. States Ins. Co. (11 Serg. & Rawle, 60.) The sacrifice of the masts, sails and rigging of the vessel, being voluntary, and determined on with a view to save the cargo, as well as the lives of the crew,' may perhaps have been the subject of general contribution, but beyond this, the principle' of the case may well be doubted. Gray v. Waln, (2 Serg. & Rawle, 229,) has also been cited by the counsel for the plaintiff. The only matter, however, settled in it was, that a voluntary stranding of the ship for the purpose of preserving the ship and cargo,, the greater part of the cargo being thereby saved, but the vessel wholly lost, entitled the owners thereof to general average for this loss.. The case of Caze v. Reilly, (3 Wash. C. C. R. 298,) which is to the same effect, and'was decided [363] before Gray v. Waln, was also adduced in support of the plaintiffs’ claim. But the stranding of the vessel, in each of these two last cases, being considered as clearly voluntary, presents at once an obvious difference between them and the present. In the former, for aught that appears, the vessel might have been kept out at sea and have weathered the storm, so that the act of running them ashore, was purely one of free agency on the part of the masters, the agents of the owners thereof, and done for the common benefit of all concerned; thus bringing these cases within the reason of the rule, which lies at the foundation of every case of general average. The principle of general contribution, in this respect, is derived from the ancient law of Rhodes, relative to jettison, which it is said, was formed and promulgated nine hundred years before the Christian era, and afterwards adopted by Justinian into his Digest, with an express recognition of its true origin: “ Lege Rhodia cavetur, ut, si levanda navis gratia jactus mercimn factus sit, omnium, contributione sarciatur, quod fro omnibus datum, est.” Dig. lib. 14. Tit. 2, 1. Besides, where the property of one of the parties concerned in the adventure, is deliberately sacrificed for the benefit of the others, so that thereby his loss is made directly to promote their gain, he becomes entitled to claim restitution, according to the equitable maxim of the civil law, JVemo debet locupletari aliena jactara. And doubtless it is a general rule, constituting a part of the law of every commercial country, which has been acknowledged and acted upon from time immemorial, that if a part of the ship or cargo is voluntarily sacrificed to save the remainder from some impending danger, the owners of what is saved must contribute for the loss. 1 Phillips on Ins. 334. To this rule, however, there are some exceptions, as where goods, for instance, on deck, are thrown over, it is held in general, that no contribution can be claimed. Ibid. 332. But it is clear that the case in hand does not fall within either the terms or the reason of the rule. The running of the vessel ashore here, can with no propriety be said to have been voluntary. Nor can it indeed, be well said, that the loss of the vessel was occasioned thereby. For according to the evidence of the master, which is all that we have, and all that the plaintiffs’ rely on to establish their claim, the vessel being on a lee-shore, where she could not carry sail, they found it necessary for the preservation of the lives of the crew, as the loss of the vessel was then certain beyond a doubt, being in four fathoms water, and the land within a mile of her, to run her ashore; and accordingly they slipped the best bower chain, put the vessel before the wind, and in a short time struck the land. In his cross-examination he further states, that her situation was most desperate; that she would have gone to the shore at all events ; but the mode in which the witness ran her on shore saved the lives of crew, and tended to save a greater proportion of the cargo. From this it is perfectly manifest, that the loss of the vessel had become [364] inevitable, as the consequence of the peril then present; and'in such case says Mr. Phillips in his treatise on Insurance, 1 vol. 339, when the acts of the crew are intended to alleviate, instead of avoiding such consequence, it seems hardly to be voluntarily incurring a loss. But Mr. Benecke in his work on Insurance, cap. 5, p. 219, in which, says Chief Justice Abbott, in his publication on Shipping, 343, there is much learning combined with practical experience, meets the present case in so many words, and declares, that “ if the situation of the vessel v/ere such as to admit of no alternative, so that without running her ashore, she would have been unavoidably lost, and that measure were resorted to for the purpose of saving the lives or liberty of the crew, no contribution can take place, because nothing in fact was sacrificed.” So here the plaintiffs sacificed nothing; their vessel was doomed to inevitable destruction, by the peril of the sea which surrounded her. It was, in reality, the case of a wreck, where as Emerigon, tom. 1, p. 612, says, “ The owner of the ship wrecked, and the owner of the merchandize lost in the shipwreck, have no right of contribution from those who have the good fortune to save their effects; because the losses that the one or the other has sustained, has not procured the common safety. The rule of the civil law is the same. Amissa navis damnum, callationis consortia non sortitur per eos qui merces suas naufragio liberaverunt; nam hujus equitatem tunc admitti placuit, cum jactus■ remedio, cceteris in communi periculo, salva navi, consulium est. (Lib. 5, de Leg. Rhod.) It is the same as the case of fire. He who saves his own, saves for himself alone. Cum depressa navis aut dejecta est, quod quisque ex ea suum servassat, sibi servare respondit, tanquam ex incendio. (L. 7,jf. cod.) So Chirac (p. 51, note 9,) says, “ after shipwreck, there is no contribution between the merchandize recovered and fished up, and those lost; but save who can.” So Casaregis says, (Disc. 121, note 17,) “he who saves, saves; he who loses, loses.” See Mr. Justice Story, note 1, to Abbott on Shipping, 349. The loss of the ship in question, appearing then to be inevitable, must therefore be borne by the plaintiffs, who were owners of her. This says Mr. Stevens, the Digest and all authors are agreed on; for you cannot in equity convert a loss, which is inevitable, into a claim, for the preservation of property. Stevens Benecke, by Phillips, on Average, 84. The judgment therefore, according to the agreement of the parties, must be for the less sum in favour of the plaintiffs, that is, one hundred and eighty-six dollars and thirty-one cents. J ud gment accordingly.