172 THE ALCONA. (District COU1't, E. D. Itlinoz's. 1. GENERAL AVERAGE.
1881.)
Where a vessel, in the course of her voyage, hecomes stranded upon the bank of a river or harbor, and the circumstances are such as to show there is no danger to be apprehended from her lying t.here, the expense of getting her off is not the subject of a general average contribution.
In Admiralty. This was a libel in personam by Charles Bewick et al., owners of the propeller Alcona, against the Detroit FiJ;e & Marine Insurance Company, to recover for a general average contribution. The policy insured the propeller against total loss and general average only in the sum of $10,000. The answer denied that the libel set up a proper claim for general average. Bya stipula. tion of facts it appeared that the Alconar a cargo of 37,000 bushels of corn, left Toledo, Ohio, for Buffalo, and while proceeding down the Maumee river, when on the range stakes, brought up on the bottom, anc;l was unable to get off without assistance; that she lay about 20 feet outside of the channel; that while she was thus stranded it was deemed advisable to lighten her ofa· portion of her cargo, and accordingly about 5,000 bushels were removed from the propeller to a bai'ge, and the propeller was then doated by the assist· ance of the propeller Alpena and certain tugs.
Otto Kirchner, for libellants. F. H. Canfield, for claimants. BROWN, D. J. So far as the.facts of this case are concerned, I am satisfied that there is no evidence which would be proper to go to a jury that the Alcona was in any danger of total loss or serious damage to herself or cargo. There is no allegation to that effect in the libel. She lay upon an even keel, upon a bank of sand, clay, and mud, several miles from the mouth of the Maumee, protected from the heavy winds and sea of the open lake. A rise in the water would have floated her off without assistance, and it was very improbable that any such fall would occur as would put her in any serious peril. She was a little out of the channel, and there was plenty of room for other vess6ls to pass witlJOut fear of collision. The weather was good, and for all that appears she was as safe as if she were lying at her own dock. Nor should I be justified, from the testimony, in finding the existence of a usage of insurance companies to treat expenditures of this kind as general average. It is true that evidence was offered tending to show that in a number of similar cases, running through J, series of years, expenses incurred under like circumstances had been allowed; but there is nothing to show a. uniform 'and certain
·THE ALCOlU.·
178
usage to that effect. A cuatom can:not thus proved by isolated cases. Cope v. Dodd, 13 Pa. St. 33. We are,then, left to deal with the naked question whether expense incurred in getting off a vessel stranded in a place of safety can be the subject of a general average contribution. Cases in which steam-power is employed in hauling off stranded vessels are not . strictly cases of general average, but are treated in the books as rather in the nature of general average. The law upon this subject originated in cases of jettison, a:pd most of the earlier cases rehtte to actions brought to recover contributions for goods thrown overboard, or masts, cables, or rigging sacrificed to relieve vessels in After the invention of steam-power the same principle was extended to expenses incurred for. tugs hired to haul off stranded vessels from a dangerous shore; but I do ;not understand that the general principle upon which allowances oftP$.s Wnd are made has been a.t all enlarged in this new class of. calles;, aJllll I apprehend the exp,ens,e of tugs for this purpose would not be allowed in any case where, ii>other equally prudent and ef'ficltcious measures of relief had been (such, for example, as iijettisonof a part ,of the cargo,) the thereby voluntarily mcurred woui<1 not be 'held the subject of a 'general average contribution. It would be unreasonable to say that So vessel iII. peril may select. one ,meth0d of relief and obtain an allow.. ance by way of general average,while, if she selects another method of accomplishing the same thing, the loss would be hers alone. lIenee it seems to me quiteclear:that we must look only to the circumstances in which this vessel was placed, and not to the particular measures employed, to determine whether the case is a proper one for contribution. Now, referring to the authorities upon the subject, I take it that nothing is better settled than that a voluntary sacrifice of a portion of the vessel and her cargo can.only be justified to .save the' remainder from an imminent danger of loss. In 2 Arnold, Insurance, 883, it is said: "It is an undoubted requisite of general average loss that it should have been incurred under pressure of a real and imminent danger." And at page 884 it is said: "The sacrifice must have been made under an urgent pressure of some real and immediately-impending danger, and must have been resorted to as the sole means of escaping destruction." In the case of the Columbian Ins. Go. v. Ashby, 13 Pet. 381, in which it was held that the voluntary stranding of a ship in imminent peril
174: constitlltes a case of general average, Mr. :rustice Story remarked that"The Roman law flllly recognized and etiforced the leading limitations and conditions to jnstify a general contribution, which have ever since been steadily adhered to by all maritime nations: (1) That the ship and cargo should be placed in a common imminent peril; (2) that there should be a voluntary sacrifice of property to avert that peril; and (3) that by that. sacrifice the safety of the other property should be presently and successfully attained. Hence, if there was no· imminent danger, or necessity for the sacrifice, as if the jettison was merely to lighten' a ship, too heavily laden by the fault of the master in a tranquil sea, no contribution was due. The contention of libellants, that the expenses incurred in this case were for the joint benefit of the ship and cargo, (because the voyage might otherwise have been indefinitely prolonged,) is expressly declared in this case to be no ground for a general average contribution. It may be said that unless the ship is got off the voyage cannot be performed for the. cargo, and the safety and prosecution of' the voyage are essential to entitle the owner to a contribution. But this principle is nowhere laid down in the 'foreign authorities; and certainly it haa nO: foundation in the ROman law. It is the deliverance from an immeperil,by a common sacrifice, which constitutes the essence 'of the cll,loim. ... ... ... But, in truth, it is the safety of the property, and not of the voyage, which constitutes the true foundatlon of general average."
In the subsequent case of Barnard v. Adams, 10 How. 303, it is said that "in order to constitute a case for general average, three things must concur, the first of which is 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." Subsequent cases in the salle court reaffirm· the same principle. The Hornet, 17 How. 100; The Ann Elizabeth, 19 How. 162; The Star of Hope, 9 Wall. 203.
; In ,his work on General 'Average, .Mr. Lowndes states, as a funda'mental rule, p. 4: "That after the cargo is in safety, the benefit it may derive from being carried in the ship to its place of destination, is not a ground for ma,king it contribute towards the cost of repairing theiBhip, nor placing the ship in shape where she can be repaired;" citing Powell v. Gudgeon, 5 M. & S. 431, and Sm'quy v. [{6bson, 4, Bing. 131 ; Duncan v. Benson, 1 Exch. 537; 3 Exch. 644; Job v. Lang6 E. & 13;, 779. None of the cases cited by libellants look towards any relaxation of tberule' that imminent danger to the ship a:ndcargo is an ingredient essep.tial to a general average contribution.
· T'lHE ALCONA..
175'
In Birkley v. Presgrave, 1 East, 228, it was merely decided that an action of assumpsit woulddie by the owner of the ship to recover from the cargo its' proportion of a general average loss; but the declara'tion in that case expressly alleged that the sacrifice wasnec'essarily made in order' to preserve the ship and' cargo from perishing by storm. In Thornton v. U. S. Ins. 00. 12 Me. 150, which was an action upon a policy of insurance, it appeared that the vessel,being on a voyage from Richmond to Bremen, wag compelled to put into Cu:xhaven, an intermediate port, for the preservation of the ship, cargo, and lives, of the crew, So in the Bedford Ins. Co. v. J?arker, 2 Pick. 1,itappeared that the vessel struck on a reef of rocks outside the harbor of New Bedford, at the distnnce of about nine miles from thl3"town, but within 80 or 90 yards from the shore, and was in imminent peril from the sea, the tide flowing into and out of hel'; ,and filling the hold. The ship ,before the ship itself question was whether iron taken off case of McAndrews, was gotten off was. subject to contribution. In v. Thatcher, 3 Wall. 347, the salUe, question was cO:Qsi,dered, and Mr. Justice Clifford expressly says: ' j
"It cannot be doubted that the ship and cargo were jointly exposed to a common peril, and were in imminentdangerQf being wholly lost., Such being the fact, it is clear that the expen,ses of saving the ship and cargo were a proper subject of joint and ratable contribution in general average by vessel, freight, and cargo, provided the vessel and cargo were saved by the samesedes of measnres during the continuance of the common peril which created the joint necessity for the expense." ,
The continental writers are equally'explicitto the that hnmi. nent peril of loss is an esseI!-tial ingredient in a claim forgenera:t' average. Says Goirand, in commenting upon article 400 of the French Commercial Code: ': "four conditions are,lndispensable to general average, the absence of any one of which suffices to render the, average particular. In order that the average be general, it is necessary (1) that the damages or expenses arise from the voluntary act of man; (2) that such voluntary action has h!id for object to save the ship and cargo from immediate danger of loss; (3) that such danger has equally menaced both ship and cargo; (4)· that the VOIUllhas been attended beneficial to !'lay, has led to the preservation of the
The civil-law courts are even stricter than ours in requiring a previous consultation with the crew, and parties interested in the cargo who may be on board. A l:eport of the deliberation must be drawn
176
FEDERAL REPORTER.
up, specifying the motive of the jettison, and enumerating the articles thrown overboard or damaged. This is signed by the persons who took part therein, and transcribed into the log-book. At the first port touched at the captain must, within 24 hoUl's after his arrival, attest the statement contained in the deliberation. So, in the elaborate work of Hoechster & Sacre, vol. 2, p. 946, it is said: "The act [the basis of the claim for general average] should be a Yoluntary act agreed to after a consultation with the crew, and in the common interest. It should be justified by the fear of a peril certain and imminent, and have for a total or considerable loss bj' a less sacrifice." Page its object to 960: "A jettison·is justified only by extraordinary necessities, when it is a question of lightening the ship to prevent her foundering, by relieving her when she is stranded, or of qui<::kenihg her speed to escape the pursuit of an enemy."
Section 702 of the Dutch Code provides for a case precisely like the one under consideration: "When a ship is prevented, from existing shoals or shallows or banks, from leaving the place of departure, or reacJling her place of destination, with her full cargo,and a part thereof must be conveyed to the ship by or discha.rged into lighters, such lightering is not considered as an average." See, also, Caumont, title,"Avaries," §§ 31, 32,33. These expenses are, however, allowed where the vessel is obliged to enter the harbor by a storm or the enemy's pursuit. Code of Portugal, art. 1816, §§ 14, Hi, 18; Code of Spain, art. 936, § 5; 90de of Italy, art. 509, §§ 10, 14; France, art. 400, §§ 7, 8. All of the continental Codes, so far as I have examined them, appear to restrict claims for general average to 'cases where a voluntary sacrifice is made to save the vessel and cargo from a greater loss. If the allowance of general average can be made in the case under consideration, I see no reason why it is not equally allowable whenever a tug or lighter is employed to assist a vessel over a bar at the port of departure or of destination, or to relieve a vessel whenever and wherever, in the course of her voyage, she may happen to touch the bottom, be her situation never so safe, if she happens to require assistance to get off. Such a ruling would be extending the doctrine of general average to cases never contemplated by any writer upon maritime law, either in Europe or America, to which my attention has been called.
FLANAGIN V. THOMPSON.
177
FLANAGIN
v.
THO?JPSON
and others.
(Circuit Court, D. Maryland. 1. REs ADJUDICATA-EsTOPPEL.
November 7, 1881.)
Two mortgages of different properties were at the same time assigp.ed to a bank by a lI'ife as security for one note discounted for her husband.' Afterwards, in a proceeding in a state court for the foreclosure of one of' the mortgages, the wife disputed the validity of the assignment, and, resisted the claim of the bank to receive the money arising from a sale of the mortgaged property. The issue thus raised was decided by the state court in favor of the bank, and the validity of the assignII!ent to it was sustained.' Subse· quently a proceeding to foreclose the other of the two mortgages was instituted in the federal court, and the wife raised the same objection to the validity of the to the bank. The bank pleaded':that the question of the validity of its assignment was res adju(J,icata. Held. on the authority of ,Campbell v. Rankin, 99 U. S. 263; Cromwell v. Uounty of Sac, 94 U. S. 351; and ,Dams v. Brown,ld. 423, that although the subject-matter of the casefu the fed· eral court was not the same as that of the case in the state court, yet the'mat. terput in issue having bcen the same, and the parties to the controversy the same, that the wife was estopped from again contesting the validity of the assignment upon the same ground as she had set up in the first case.
In Equity. William Sheppard Bryan, for complainant. John H. Handy, for defendants. MORRIS, D. J., This bill is filed by M. Flanagin, wife of William S. Flanagin, a citizen of Pl'llllsylvania, against Hedge Thompson, a citizen of Maryland, and the Easton National Bank of Maryland. The !.Jill alleges that the defendant Thompson in. 1867 executed a mortgage of land in Maryland to secure a bond for the payment of $5,000, which bond and mortgage, by proper assignments, had become the property of the complainant" and that, except the sum of $1,000, no part of the money intended to be secured had been paid, but that the same was long overdue and the mortgage in default. The bill further alleges that the Easton National Bank of Maryland has possession of the bond and mortgage, and sets up a claim to the same by virtue of a pretended assignment, which the Gomplainant charges is null and void. The bill prays that the pretended assignment to the bank may be annulled and set aside, and that the mortgage land may be sold for the payment of the mortgage debt. The bank, by its answer, asserts the validity of the assignment to it, giving the history of the transaction by which it acquired the mortgage, and also, in an amended answer, pleads, in bar of th& action, that the same matters put in controversy by the bill had been adjUdicated by the court of appeal of Maryland in a cause between the same parties. '.rhe mortgagor makes no defence. He admits that the mortgage is in default and that the title of the bank is valid.
v.9,no.4-12