Robert Cooper Grier

“ No man has the right to ask, in a case of common danger, that another's property shall be singled out and sacrificed, or put in greater jeopardy, for his benefit; and so the law gives to the owner of property thus selected for sacrifice a right of contribution against those whose property, with no greater right to protection than his, has been saved or less imperilled at his expense or risk; but it is this selection, this dedication of the thing to sacrifice or special hazard, which is the very foundation of the right to general average. ”

“ Destruction is upon them already; all will be destroyed, as the circumstances stand, before the master acts to avert peril. Something must be destroyed at all events. The only volition to be exercised is, Shall the destruction be anticipated as to part, to procure the rescue of the rest? ”

“ They say, that it is a paradox to call placing the ship in a safer place of stranding a sacrifice. The putting of a cargo into lighters to relieve a stranded ship does the same; but it is a case of average contribution. And moreover, the sacrifice, so called by a figure of speech, in general average, is merely the anticipation of the time of probable injury, and the selection of the subject. Suppose the loss to which the ship was exposed had not been inevitable, so that, upon the principles of the plaintiff's argument, it was a case of contribution ”

“ A distinction is attempted between acts of jettison, cutting away parts, &c., on the ground that a separation of parts of a ship or cargo differs from an injury to the ship going as a whole community into a peril. This is not very easily to be understood; but if it means that there is any difference between a jettison and a voluntary stranding damaging the whole ship, on this ground alone, that an injury to a part differs from an injury to the whole, such difference is entirely denied, and is not supported by any authority nor acknowledged principle. ”

“ Again, he says, 'the will of man must concur with the disaster,' not be alone the cause, but only a co-operating cause. The idea that any of the sacrifices at sea, in times of peril, are voluntary in any ordinary sense of the word is quite erroneous. It is an act of the will, under the sternest pressure of necessity; the alternatives are, total loss if nothing is done, a lighter loss if the danger is hastened. ”

“ So in repulsing an assault by an enemy, 'neither the damage to the ship, nor the ammunition expended, nor the expense of healing the mariners wounded in an action against an assailing enemy, is a subject of average contribution.' (Perkins's Abbott on Shipping, 501.) A heavy sea sweeps away deck freight, or finds its way into the hold and injures the cargo. Then the owner bears the loss. A wreck occurs, one man's property is saved slightly damaged, another's greatly damaged, the value of another's is entirely destroyed. Each man must bear his own loss. ”

“ If, in the apparently instant wreck, in which everything is likely to be lost, a mariner should embezzle a box of jewels, would he be treated as appropriating a thing of no value? If the convict doomed to execution tomorrow on the gallows be stabbed to-night, will it cease to be murder, because he has but a short remnant of a doomed life? ”

“ When the community of interest of which the master has charge is placed in circumstances of peril, it is not necessary that loss should be inevitable, in order to justify his deliberately sacrificing one interest to insure the safety of the rest ”

“ The counsel for the defendants in error, throughout his points, brief, and argument, seeks to confound and confuse words and phrases which have distinct and well understood differences of meaning. Thus, on one page only of his printed argument, he uses the phrases 'certain peril,' 'inevitable danger,' 'peril inevitable,' and 'loss inevitable,' as though these were equivalent and convertible terms. A peril may be inevitable, and yet no loss accrue; but to say that loss is inevitable, and yet may not happen, is to do violence to language. ”

“ There is no ground in law to say that the duties of the mariners ceased when the stranding became fatal. They still owed duties as mariners both to ship and cargo, and had a lien on the ship for wages, or salvage as a substitute for wages, until the cargo was fully and properly disposed of from the wreck. Being properly employed upon the ship and cargo, even if it were true, as it is not, that their obligation to the ship had ceased, still their services to vessel and cargo entitled them to wages and to their support as a general charge. ”

“ Whenever the master is not asleep, insane, or, from some cause, grossly negligent of his duty, he will use his judgment, and control the helm, so as, in some degree, to modify the disaster which he cannot avert; and it will be strange if he cannot swear, as the mate did in the present case, that he did thus modify it for the common benefit. Under such a rule, the presence of the master and crew will be absolutely detrimental to the cargo in most cases of stranding. Their being on board will only serve to lessen the injury of the ship, and to create in her favor a claim against the cargo. ”

“ It is enough that the risk be real, but it may be more or less imminent. A slight risk would justify a trifling sacrifice. A more imminent risk a greater sacrifice. The terms risk, hazard, peril, and, indeed, the whole class of words used in describing general average cases, always include both the idea of danger and the possibility of escape. The only questions in judging of the propriety of the course of a master, in any given case of voluntary sacrifice, are, Was the peril real? ”

“ This becomes still more apparent if the rule of valuation for cargo lost be considered; and the rule of valuing cargo lost and cargo saved is always the same. By a general average sacrifice the owner is not merely indemnified in the cost of his goods. The freight on lost goods is paid in contribution, and is assessed in contribution. The goods are paid for at their value at the place of destination. The merchant recovers, not only first cost, but profits. The merchant and ship-owner, therefore, are both entitled to compensation as of the place of destination. ”

“ It is not always that the selection of time and place can be made; but whenever it can, it is policy that it should be, and that under a judgment freed from hesitancy by the indemnity of a contribution. The apparent force of this consideration of the plaintiffs is overbalanced by that of there never being any contribution at all, if the principle be adopted that, if the loss be otherwise inevitable, there can be no contribution. ”

“ If they are not so accepted, the owner first becomes chargeable whenever, and, it may be safely affirmed, wherever, they so reach his hands. But when the voyage is strangled in its inception, there is no port referable to but the home port of the shipper. Destruction of the vessel there necessarily leads to a return of the cargo into the hands of the shipper. If, permissively, or by express retainer, the master of the disabled ship hires another vessel, transships the cargo, and carries it to the port of original destination, this is a new adventure, voyage, and agency. ”

“ This action of collection or reception is not done for the common benefit, nor for the benefit of the defendants. Surely the defendants, as owners of the nutria skins, are not interested in the collection, though they were in the adjustment. If the plaintiffs choose to omit the collection, no one will suffer but themselves. Upon general principles, it is perfectly absurd and unjust to demand from one not interested in the collecting, compensation for collecting a demand. Governments, by positive enactment, charge their debtors and taxpayers with the cost of collection. ”

“ The law of general average has its foundation in equity. The principle, that 'what is given for the general benefit of all shall be made good by the contribution of all,' is recommended, not only by its equity, but also by its policy, because it encourages the owner to throw away his property without hesitation in time of need.
In order to constitute a case for general average, three things must concur:--
1st. A common danger; a danger in which ship, cargo, and crew all participate ”

“ These facts found in the special verdict amounted, in the opinion of the court, to 'a voluntary running on shore of the brig Hope; that there was no other possible means of preserving the crew, the ship, and the cargo; that the runing ashore was for this express object.' Facts thus found, and a special verdict thus expounded, admit of no explanation, for they are already too plain. The admit of no distinction from any case of inevitable loss and voluntary stranding, where the ship must go ashore, and the captain merely selects the spot and varies the time. ”

“ The time of view for justice to take is when all was equally in danger. It therefore calls for a liberal construction in favor of the contribution. In this manner salvage awards are liberal, in proportion as the property saved was, previously to the saving, reduced in value by the peril from which it was relieved. ”

“ Upon what ground, then, is it that the settlement is transferred to New York, and the goods made to contribute according to their value there? It is said that, if a vessel by misadventure is disabled from prosecuting her voyage, it is the duty of the master to transship the goods, and cause them to be carried to the port of destination. ”

“ The cargo is saved without injury, but the ship is on the land, where she is comparatively valueless, on account of the expense which must be incurred to replace her in her element. By the will and directions of the master, she has become the victim, and borne the loss, that the cargo might escape from the common peril. It is true she has not been wrecked or lost, as she inevitably would, had she been driven on the flats at Buenos Ayres by the tempest, or been foundered on the rocks off Point St. ”

“ The jactus is said to be sacrificed, not because its chance of escape was separate, but because of its selection to suffer, be it more or less, instead of the whole, whose chances of safety, as a whole, had become desperate. The imminent destruction of the whole has been evaded as a whole, and part saved, by transferring the whole peril to another part. ”

“ As to this character of the peril, the acknowledged instances of general average contribution and the maritime authors alike unite. Thus, to save a ship from foundering, the jettison is contributed for; the loss was inevitable. To avoid capture, after flight or resistance has become desperate, a stranding is warranted and contributed for; the loss was inevitable. The ship is on her beam-ends and filling with water; her masts are cut away and contributed for; her loss was inevitable. ”

“ The several persons engaged in a sea risk are not mutual insurers; each runs the risk of his own adventure. A ship is struck by a squall, and the masts carried away; a wave carries the boats overboard, or breaks in the bulwarks; the loss must be borne by the ship-owner. ”

“ There are few cases to be found in the books which have been more thoroughly, laboriously, and ably investigated by the most learned counsel and eminent judges. In questions involving so much doubt and difficulty, it is of more importance to the mercantile community that the law be settled, and litigation ended, than how it is settled. No decision of a question depending on such nice and subtile reasoning will meet the approbation of every mind ”

“ The adventure was continued, notwithstanding the disaster, and terminated at New York. The goods were not returned to the shippers, and consequently no contribution could be collected at Buenos Ayres. The fact that the Brutus was left on the strand, and the adventure continued till the cargo reached its destination in another vessel, cannot affect the case. The place where average shall be stated is always dependent, more or less, on accidental circumstances, affecting not the technical termination of the voyage, but the actual and practical closing of the adventure. ”

“ After the freighter has bargained for the carriage of his goods in a chosen vessel, the ship-owner cannot insist upon forwarding the goods by another vessel, merely because the first has become incapable of commencing the carriage. ”

“ Positive law sometimes imposes costs upon a delinquent debtor, but no such penalty is imposed by the common law. There was no evidence at the trial of any usage of trade, general or local, sanctioning this exaction. ”

“ The common peril, which in this case was sought to be avoided, was shipwreck, or the destruction of vessel, cargo, and crew. The ship lay at anchor; she was assailed by a violent tempest, her cables broken, her anchors gone, and she was being driven by the force of the gale broadside upon the shallows extending three miles out from the shore at Buenos Ayres. In order to save the cargo and crew, it is determined to put on sail, and run up the river to find a safe place to strand the vessel. They proceed ten miles up the river, when they encounter another peril at Point St. ”

“ We copy a part of the argument. 'In Sims v. Gurney, 4 Binn. (Pa.) , 524, Ch. J. Tilghman lost sight of the fact that the subject benefitted, i. e., the ship, was the very subject calling for compensation on the pretence that it was sacrificed. When a master finds that his vessel must go on shore, and merely exerts himself to go in a safe place rather than in a dangerous one, he no more makes a sacrifice than when, in navigating his vessel on the sea, he chooses a safe channel rather than a hazardous one, or changes his course to avoid a rock or a shoal ”