Merithew v. Sampson

Bigelow, C. J. The principles on which a claim to a general [194] average contribution depends are well settled and familiar. The difficulty usually lies in applying them to the facts in proof. In the present case, however, we are of opinion that the allegations in the bill are sufficient to sustain the claim. 1. In the first place, it is alleged that there was a common peril — the danger that the vessel would be driven, broadside on, upon a reef, which made out some distance from the land, and thereby, with all her cargo, be totally lost. 2. In the second place, it is alleged that the master, to avoid this peril, and for the purpose of saving vessel and cargo, as well as the lives of persons on board, deemed it advisable to ran the vessel over the reef and upon the beach ; that accordingly he took such measures as to cause the vessel to fall off before the wind, to head toward the breakers, to pass over the reef, striking lightly on it, and to continue her course before the wind and sea, until she struck the beach, head on, where, before the tide left her, she became a total wreck. There was, therefore, a voluntary sacrifice of the vessel for the benefit of all concerned. The master gave up the chances of escaping the peril which was imminent, of going to pieces on the reef with an entire destruction of vessel and cargo, and elected another peril, by running the vessel on to the beach, which was certain to be attended with great injury to the vessel, if it did .not cause her total destruction. 3. Thirdly, it is alleged that by this act of stranding the vessel on the beach, instead of allowing her to go to pieces on the reef, a large part of the cargo, which, if the vessel had struck • on the reef, would have been totally lost, was saved. There was, therefore, present safety from a peril, which threatened entire destruction, attained by the voluntary sacrifice of the vessel. It is impossible now to say on what precise ground the case of Cutler v. Rae, 1 Parsons Mar. Law, 292, n., referred to by the defendants, was decided. From the fact that it was not reported, the inference is that it turned on a question of fact, and did not involve any new principle of law. It differs, however, from the present case in the leading fact, that here it appears that an entirely new and different peril from that which threatened the [195] total destruction of both vessel and cargo was elected by the master, when he determined to run the vessel ashore. In the case of Cutler v. Rae, there was certainly room for the inference that the actual stranding of the vessel was the impending peril, and was the result of the action of the elements only, slightly and inconsiderably modified by voluntary agency. The position that no claim for .contribution can be sustained by the owner of the vessel where she is totally lost is not supported by the more recent authorities, and is not reconcilable with sound principles. Columbian Ins. Co. v. Ashby, 13 Pet. 331. Gray v. Wain, 2 S. & R. 229. Caze v. Reilly, 3 Wash. C. C. 298. 3 Kent Com. (6th ed.) 239, note. The Nathaniel Hooper, 3 Sumner, 542. Demurrer overruled.