John Archibald Campbell

“ I have not been able to find a precedent, either in the United States or Great Britain, where a contributory share, in the nature of average, has been recovered, in a contentious litigation, in an action on a bill of lading for the non-delivery of cargo. ”

“ The leading authority cited for the doctrine, that average affords a maritime lien on the property saved, is found in a line of Emerigon, who says, 'the action in contribution is real in its nature.'
But that author discriminates the feature in a real action to which the action in contribution has any resemblance. The feature is, 'that the action vanishes if the effects saved by means of the jettison perish before arriving at their destination.'
The real action is for a thing, or to assert some right in it, and is terminated by its surrender, or destruction without the fault of the possessor. ”

“ No adjudication during sixty years of our history is to be found, where the power to adjust or to collect an average account is affirmed, or has been exerted by the district courts sitting in admiralty, upon direct application to them for the purpose.
The importance of the subject will justify me in an examination of the continental authorities, which are supposed to establish the existence of a maritime lien for contribution. ”

“ That Congress may prescribe rules in reference to the settlement of average contributions, arising in the foreign or federal commerce of the country, may be admitted, and also may assimilate the American and French systems of commercial regulation. But I am not prepared to admit that this can be done by judicial authority.
The commercial systems of Great Britain and the United States recognise no such contract between the masters and freighters as the French code establishes; they invest the master with no such privilege upon the property of the shippers ”

“ And the advantage of an orderly, not to say scientific system of administration, is as apparent in the courts of admiralty, and the mischiefs of uncertainty or inexactness are as positive there, as in any other tribunals. ”

“ The popular treatises on the chancery system show that the title 'Constribution' is one of great reach, comprehending a variety of cases which rest upon a familiar maxim of equity, and that average is only an instance of its application. How stands the historical evidence in regard to the jurisdiction of the admiralty courts, with reference to his subject? ”

“ The jus in re is conferred by this clause on the master, and he may proceed to enforce his rights by judicial seizure and sale, or opposition, or he may sue each contributory for his share in contribution, and is responsible in an action to each of them. But the evils of dormant liens are removed by limitations upon the extent and duration of the claim. The code bars actions against the freighter who receives his goods and pays his freight without a legal notice of the claim for average ”

“ Bonsfield, (18 Vesey, jr., 187,) which was the case of a shipper whose property had been overthrown to lighten a ship in a storm, and who moved to restrain the master and ship-owner from delivering any part of the cargo and receiving the freight, or parting with any share of the ship, Lord Eldon said, 'that in such a case there is a lien upon the goods of each freighter, for contribution and average, in some sense; that is, the master is not bound to part with any part of the cargo until he has security from each person for his proportion of the loss ”