THE CITY OF CLARKSYILLE.
201
proof rested upon the claimant to show that the leak, which was the direct cause which led to the damage of the goods boY se.u water, occurred by the danger of the sea, and that in the absence of any such proof the presumption of the law is that the damage was occasioned either from the unseaworthiness of the steamer, or from the carelessness ,or negligence of the officers and crew on board. In either event the claimant and the steamer would be liable. The decree of the district court is affirmed, with costs.
THE CITY OF CLARKSVILLE. (District Court, D. Indiana. ]'\0_
4, 1809.)
422.
1.
SHIPPING-Loss BY FIRE-EFFECT OF STATUTE.
Itev. 8t. § 4282, governing tlJe liability of vessel owners for loss by fir(' Hhappening to 01' on board the vessel." has no application to a ease where goods were destroyed by fire after they had been unloaded from the vessel onto a wharf boat. LIABILITY.
2.
CARRIERS-CONTRACT LnrrrlNG
The provision of seetion 196 of the Kentueky eonstitution, prohibiting eommon carriers from contrac,ting for relief from their common-law liability, does not prevept a carrier from stipulating where gOOI]S shall be delivered, nor from contracting that, after they had been so delivered for transshipment by a eonnecting carrier, its common-law liability as a carrier shall cease. CONTRACTS-CON TIl ACTS TO PROCUllE
3.
ADMIRALITY JURISDICTION-MAIUTIME INSURANCE.
A contract by a carrier by water to procure insurance on goods received for transportation is not a maritime contract, creating a maritime lien, and a court of admiralty has no jUI'isdiction of a suit for its breach.
This is a libel in rem, in admiralt,Y, on an alleged contract, civil and maritime, against the steamboat City of Clarksville, her boats, tackle, apparel, and furniture, and against aU persons lawfully intervening, for their interests therein. The amended libel articulately propounilll in substance as follows: (1) That the steamboat is enrolled at the city of Evansville, Ind., and is of more than 20 tons burden, and is engaged in commerce upon the navigable rivers of Kentucky and Indiana, and has been so engaged for a long time, in carrying freight, and in making contracts therefor, from Bowling Green, Ky., to Evansville, Ind., and to other places upon the navigable waters of the United States. (2) That on or about April 1, 189G, libelants had a quantity of tobacco which they desired to ship to the firm of Kendriek and Ryan, doing business under the name of the "Central House." in Clarksville, Tenn. That on or about February 1, 1896, the steamboat, by its duly-authorized agent, solicited libelants to ship their tobacco by and upon it from Bowling Green, Ky., to the Central House; at Clarksville, 'l'enn., and then and there agreed with them, in consideration of shipping on this steamlmat, and of the money to be paid for the carriage of the tobacco, that it would cause the tobaeco to be insured against loss by fire in the consignee's open fire policy from the time tobacco was received by the steamboat until the same was delivered to the c.::.usignee at Clarksville, Tenn. That in pursuanc'e of said agreement. on or a 1-. cHIt April· 7, 1806. libelants delivered to the steamboat at Bowling Green. I(y., seven hcgshcads of tob:L{;CO. of the "alne of $150 each, to be carried
202
94 FEDERAL REPORTER.
the steamboat and delivered to the consignee. That thereupon the steamboat, by its master duly authorized thereunto, delivered to libelants three ,bllIs of lading, one of whIch is asfoliows: "Steamer City of Clarksville. "ShlpIled In apparent good order and condition, by N. C. [meaning libelants], on board the good steamer the City of Clarksville, the following articles descrIbed below, Which are to be delIvered in like order, without unavoidable delay, the dangers of navigation, fire, explosion, and collision excepted, on the wharf boat or landing at the port of Evansville, Indiana, twenty feet from the water's edge, where carrier's responsibIlity shall cease, with privilege of IIghtering, tOWing, storing, reshipping unto Clarksville, Tennessee, or assigns, he or they paying freight for said goods at the rate of 15 cents per hundred pounds, and charges, $2.00. But not responsible for breakage of castings, or glassware; mud, wet, and old damaged baggaging; nor for the leakage or breakage of liquor o,r decay of perishable articles; nor for unavoidable accidents to, or escape of, stock. No claim for damages after freight leaves the levee. "In testimony whereof the owner, clerk, or master of said boat hath aflil'm('il to - - bills of lading. all of this tenor and date, one of whieh hdng Ui'complished. the other stands void. Dated at Bowling Green, Ky., this 8th day of April, 1896. Artieles. "Marks ,and Consignments. "N. C. ' 1 Hhd. 'fobacco. "Central House, Clarksville, Tenn. 17# W. W. Server, Master. "Insured in consignee's open fire polIcy. "AprlI 8, 1896.'," That each of said three bills of lading is a copy of the other, except as to date and number of hogsheads of tobacco described therein. That the mastel'. being dUly authorized thereunto, in pursuance of the' verbal agreement allov.. stated, indorsed in writing upon each biIloflading, before 'delivering the same to lIbelants, the words, "Insured in consignee's open fire policy," and signed the name, ··W. "'.. Server, Master" (}f said steamer, to such indorsements. (3) That, at and before the time the contract of affreightment was made. the constitution of Kentucky; in which 'state saidcontrad was made, COlitained this provision: "Sec. 196. No common carrier snail be permitted to contract for relief from its common-law liability." That the, court of apppais of which is the highest court of jUdicature of said state, by its decisions since: 'the adoption of said constitution, holdS that the above-quoted constitutional provision is self-executing, ,al).d' that it became of full force and operative as the law of 'KentUCkY as soon as the constitution wus adopted, and that it is, and remains, in full force, and applies to all contracts made by common carriers since the adoption of said constitutiOn. (4) That the steamboat took possession of'the tobacco for the purpose of shipment, and: carried same to the port of Evansville, Ind., and landed the same on the wharf boat at sliJd port for the purpose of being transshipped em another steamer to Olal'ksvilIe, Tenn. ,That while the tobacco was on said wharf boat, and on .01' about April 15; ;1896, it was totally destroyed by fire. That the undertaldng by said steamboat to ins,ure said tobacco in the consignee's open fire policy was without any authority whatever from said consignee, and said consig,nee had no policy of fire insurance Ul)OIl said tobacco, and .said tobacco was never insured in any open fire policy or otherwise of said ,(j{)nsigIiee, and said steamboat altogether failed to perform its undertaking. to have said toba,ceo insured. 'rhat said tobacco was shipped by them upon said steamboat selelY in considera,tion of said undertaking on the part of said steamboat that said tobacco WQQ.,ld be insured in said consignee's open fire policy, and, had it not been for euch agreement, libelunts would not have shipped said tobacco on said steambQaL By reason of the premises, the libelants have sustained damages in thesurn of $1,050, and interest on said sum since, Aprir 15, (5) That all and singular the premises are true. Wherefore process is prayed against the steamboat, etc., and that the damages be decreed to be paid, etc.
THE CITY OF CLARKSVILLE.
zoir
The master and owners of the steamboat filed answer and exception in substance as follows: (1) They admit the allegations of article 1 of the libel to be true. . (2) TllE'Y admit that the steamboat, at the times mentioned in the hbel, received cl'rtain tobaeeo from the libelants at Bowling Green, Ky., consigned to Clarksville: that the steamboat issued to lilJelants certain bills of lading, as described in the libel; that said bills of lading bore an indorsement as stater} in the libel, which Indorsement was put on by respondents' agent; that said tobacco was carried to the port of Evansville, and while lying at said ]lort, awaiting transshipment to Clarksville, the same was by fire; that respondents received from libelants the stipUlated price for caniage. (3) As to all other matters alleged in said libel, they deny that the same are true, and state that the facts attending the shipment were as follows: Neither 111(; steamboat nor respondents had any agent to solicit freight from libelants; that, if anyone did solicit freight from them for the steamboat, it must have l,een a teamster, who represented his own business, and not respondents or their steamboats; that the first respondents knew abont this tobacco was from the 'libelants themselves, who asked respondent Server to give them the rate to Clarksville; that Server gave them the rate, and libelants delivered to tIw steamboat, at her landing in Bowling Green, the tobacco in the libel !l1pmionl'd. for shipment under the terms of Server's offer; that nothing was SHid to respondents, 01; to any agent of the steamboat, about insurance till :I tter the delivery of the tobacco to the boat; that after snch delivery libelants rp;qupsted respondents' agent to make the indorsement set ont in the libel on said bill of lading. so that the libelants might have insurance; tha the iudorsanNlt was made flfter the contract of affreightment had been comph'tell, and was no part thereo.f, and was no promise or agreement of respondentsor their boat, and was wholly without consideration; that the in<!ursement was made because there is a general custom among tobacco shipJlE'I'S for the consignee to carry open insurance, for which the consignor is dwrged by him, but for the consignor to obtain the benefit of such insurance it is ncel'ssary for the bills of lading, when delivered by the boat to the shipper, to bear the indorsement stating, in effect. that the shipper claims such inf'lIrance, and signed by the master of the boat. (4) Hespondents say the court has no jurisdiction of the matters contained in the libel, the SHme not being matters of admiralty and maritime jurisdiction, the said libel being !iled to enforce a claim for damages arising out of the nonperformance by said steamboat, its owners and agents, of a contract to procure insurance. whieh is not a maritime contract, and respondents and <,x<,<,ptanls the same advantage thereof as if the same were separately nnd formally pleaded to said libel.
'L'lle master heard the cause, and found and reported the facts substantially as set out in the libel, and recommended a decree in favor of libelmlts for $1,050, with interest thereon from April 15, 1896. 'rhe respondents have filed numerous exceptions to the finding and report of the master, but, after an attentive examination of the evidence, I am satisfied with his finding and report of the facts. If j he libel states a good cause of action wi thin the jurisdiction of a court of admiralty, I am of opinion that the same is made out by the evidence, and that there ought to be a decree for the libelants, as recommended by the master. Gilchrist & De Bruler, for libelants. Posey & Chappell and R. J. Meyler, for respondents. BAKER, District Judge (after stating the facts as above). Two grounds of liability are relied upon by the libelants: First. It is insisted that the steamboat could not limit its liabili.ty as a com-
204
mon carrier by reason of the prohibition in the constitution of the state of Kentucky above quoted, and that it is responsible as such common carrier. Second. It is further insisted that the steamboat is responsible on the ground that it became an insurer of the tobacco from the time of its delivery, and remained responsible for its loss by fire until it was delivered to the CQnsignee at Clarksville. The first section of the act of congress (Rev. St. § 4282) approved March 3, 1851, does not apply to the facts of this case. This section is copied from the second section of Act 26 Geo. m c. 86, which recourt of queen's bench in Moreceived a judicial interpretation by wood v. Pollok, 18 Eng. Law & Eq. 341. It was. there held that the act did not extend to the case of afire occurring on a lighter in which. cotton was being conveyed from the vessel to the shore. This decision is in conforniity with the language of the act which limits its operation to a fire happening to or on board the vessel. Without a departure from the plain reading of the words of the act, I cannot extend it to a fire happening on board of the wharf boat lying -alongside the shore. The constitution of the state of Kentucky would be inoperative in any case to which the above statutory provision extended. The act of congress was passed in pursuance of an express grant of power, and such act is valid and operative, anything in the constitution or laws of the state of Kentucky to the contrary notwithstanding. The act of congress, however, is inapplicable to the present case, because the loss did not happen from a fire to or on board the vessel. It is equally evident that the provision of the constitution of the state of Kentucky relied upon does not apply because the loss happened after the delivery of the goods on the wharf where the libelee's responsibility as a carrier was at an end,and its only responsibility was that of a wharfinger or warehouseman. This is the express agreement contained in the bill of lading. The constitutional provision does not attempt to limit thE: right of a carrier to stipulate where the delivery of the goods shall be made, nor does it prohibit the making of a contract for relief from its common-law responsibility as a carrier when it has made a delivery of the goods pursuant to the terms of its bill of lading. There is no allegation in the libel imputing the loss to the negligence or want of care of the libelee. It does not proceed on the theory of a loss arising from want of care. If any recovery can be had, it must be upon the ground of a breadl of the contract to procure insurance, or on the ground of a false representation that the tobacco had been insured. There is no claim that the respondents were, or were to become, themselves the insurer. They were not in the insurance business, and never had been. Their business was only that of a carrier and forwarder, The bill of lading so imports. There was nothing in the eirc:umstances m' in the negotiations of the 'parties that gives any countenance to the idea that the steaI)1boat or Hs owners meant to become the insure\' themselves, or to charge the boat or its owners as insurers. nor an \'thing in the libel or proofs to indicate that the libelants expecre(} either the boat or its owners to become insurers of the tobacco. Tlw libel alleges that it was agreed in consideration of shipping
THE CITY. OF CLARKSVILLE.
205
tobacco on the steamboat, and of the money to be paid for its car· riage, that the steamboat would cause the tobacco to be insured against loss by fire in the consignee's open fire policy from the time that it was received at the landing at Bowling Green until the same was delivered to the consignee at Clarksville. It is then averred that, in pursuance of said agreement, the libelants delivered the tobacco to the steamboat for carriage. The breach of the contract is averred thus: That the undertaking by the steamboat to insure the tobacco in the consignee's open fire policy was without any authority from the consignee, that the consignee had no oPQn fire policy, and that the tobacco was never insured. in any open policy of the con· signee or otherwise, and that the libelee wholly failed to perform its undertaking to have said tobacco insured. It is to be observed that the contmct of affreightment had been fully performed by the carriage and delivery of the tobacco without damage on the wharf boat at Evansville, Ind., as stipulated in the bill of lading. No action could be maintained on the bill of lading for failure to deliver. The only thing left unperformed was in failing to insure in the consignee's open fire policy. The failure of libelants to allege or prove that the amount for which the tobacco was to be insured was stated or agreed upon is a circumstance tending to support the respondents' contention that it was libelants' duty to forward the bill of lading to the consignee and have him effect the insurance. I do not care, however, to dispose of the case on this ground. The facts of this case clearly distinguisJJ.it from the case of Rosenthal v. The Louisiana, 37 Fed. 264. That was a libel for a failure to deliver pursuant the contract of affreightment, and the verbal agreement to insure the goods before they were placed on board was incidental to the main contract for the breach of which the suit was brought. The agreement set out in the present libel is simply a contract or undertaking to procure insurance. A contract of insurance effected on goods transported by water, whatever doubts may have been at one time entertained, is now firmly settled to be a maritime contract. Insurance Co. v. Dunham, 11 \Vall. 1. But a contract to procure insurance, such as this contract is alleged to be, is not a maritime contract, nor is it a contract of insurance. It is on the other side of the line dividing contraets which are maritime from those which are not maritime. A suit to recover damages for the breach of a contract to procure insurance is purely a common-law action, and is not within the jur'isdiction of the admiralty. Marquardt v. French, 53 Fed. 603. Such a claim does not differ in principle, so far as concerns the jurisdiction of a court of admimlty, from a suit by a shipping broker to recover compensation for services in procuring a charter party (The Thames, 10 Fed. 848); or by an agent employed to solicit freight (The Chrystal Stream, 23 Fed. 575); or for compressing cotton preparatory to shipment (The Paola R., 32 Fed. 174); or for buying a ship, and traveling on her to look after the owner's interest (DoolittlE: v. Knobeloch, :39 Fed. 40); or from a contract with the owners to supply their ships for the period of one year with provisions (Diefenthal v. Hamburg-Amerikanische
2M
·M· il'!IitllRAL' REPO!t1'ER.'
,
Packettahrt Actien.Gesellschaft, 46: Fed. ,397); ,or :from a contract fOl'building a ship. In The Havana,M' Fed. 201, 203,lt :is held, that pay: necessary bills money'loaned to a shipowne:r:to for advertising in newspapers theexcursitins':of'the steamer, in order to keep up her business, was not within the admiralty jurisdiction, because such advertising was not a' service rendered directly to or upon,the ship, but belonged to that preliminary class of services rendered wholly on land, and hot deemed maritime, and hence not giving rise to a maritime lien. In my opinion, the contxiact by tbe stea1l1boat to procure insurance for the:libelants in the, consignee's open fire policy does not create a maritime lien, and hence is n0,t within'the j urisdictionof a court of admiralty. Nor can·a court of admiralty entertain jurisdiction of a libel to reform a policy of marine insurance, nor to enforce the execution of a policy of marine insurance agreeably to the terms of an oral contract. Such reformation or enforcement can only be obtained· in a court of equity, upon a bill ,filed for such purpose. A suit brought upon a policy of marine insutance, where loss occurs outside of the expressed limits 'of the policy, and where the. libel is based: upon alleged false and fraudulent representittionsleading up to the making of the policy, is not within the .jurisdiction of a court of admiralty. Such a suit is one based up0nfalse and fraudulent representations, by which the libelant was induced to: accept the policy supposing he was insured when he was notJ' Williamsv. Insurance Co., 56 Fed. 159. Under facts set out in the libel, ,and supported must be regarded as a by the proof, the agreement of the contract to procure insurance, or as a false and fraudulent representation,or warranty that it had, procured insurance; and, in either aspect, it does not disclose a state of facts creating a maritime lien enforceable in rem, within the jurisdiction of a court of admiralty. Whether a libel in personam against the owners would lie it is unnecessary to determine. . The report of the master will be set aside, and the libel dismissed. So ordered. THE STRATHDON· . (District Court, E. D. New York. 1.
April 29, 1899.) LIABILITY OF CARRIERS.
'.rhe fact that the owners of, a vessel cannot maintain an action against the owners of the cargo for contribution In general average for the ship's loss by fire because the fire was caused by the negligence of one of their crew, which Is Imputable to them,does not protect them from & similar action by the owners of the cargo for contribution. B. SAME-EXCLUDING Loss TO SnIP. Although the owners of a vessel have been adjudged exempt from lIaolllty for damage to the cargo resulting from a fire due ,to the negligence of one of the crew, under sectiou 3 of the Harter act, oli. the ground that they exercised due diligence to make the vessel seaworthy and in fit condition for the voyage, and were without personal negligence or fault, they cannot maintain !iou aflirmative action against the owners of the
SHIPPING-CONTRIBUTION IN GENERAL AVERAGE -
THE STRATHDON.
207
cargo for contribution In general average to the .l!hip's loss; but where they are invited to such an adjustment by an action brought by the sole owner of the cargo, the ship's loss must be taken into consideration, as the effect of excluding it would be to make the same act for which they are acquitted of responsibility by the statute the basis of an indirect recovery of a part of the damage which was in issue in the direct action.
This is an action by the sole owners of the cargo of the steamship Strathdon to recover contribution from the ship owners to damage to the cargo resulting from a fire on the vessel during the voyage. Black & Kneeland, for cargo owners. Convers & Kirlin, for the Strathdon. THOMAS, District Judge. On November 1, 1893, the ship Strathdon, bound from Java to New York, while passing through the Suez Canal, was set on fire between decks by the overheating of the donkey boiler, through the neglect of the man in charge thereof, and without the personal negligence of the ship owners. The means employed to extinguish the fire caused the losses which are the subject of adjustment in this action, which is brought by the owners of the cargo, which is a single interest, to recover contribution from the ship owners. The facts are fully stated in the action between the same parties, involving the question of the carrier's liability for the whole loss. See 89 Fed. 374. In that action the court adjudged that the claimants were free from negligence and liability. The present questions come up on exceptions to the report of a ·special commissioner, to whom all the issues in this action were referred. The commissioner determined: (1) That the questions in issue should be decided according to American law, although the ship was of English registry, and sailed under a charter party made in England, which stipulated for the application of the English law, and the observance for the purposes of average of the York·Antwerp Rules of 1890; (2) that the owners of the ship, on account of the negligent act of their servant, whereby the fire occurred, cannot recover contribution from the ca.rgo owners for the ship's losses, and that, as a consequence, no action can be maintained against the ship owners for contribution towards the losses of cargo. The conclusion reached by the court renders it unnecessary to review the finding of the commissioner that the question in issue should be decided according to the American law. The following discussion relates (1) to the claimants' contention that no action whatever can be maintained against the ship owners for contribution towards the losses of cargo; (2) to the claim of the owners of the cargo that the losses of the ship owners must be excluded from the adjustment, in case one be directed. As to the first inquiry, the claimants' position is this: If the fire had not been caused by the negligence of the p rson in charge of the donkey boiler, the oWner of the ship would have been liable to contribute in general average towards the losses of the cargo; but, as the fire was caused by the negligence of the person in charge of the donkey boiler, the carriers (owners of the ship), under The Irrawaddy Case, 171 U. S. 187, 18 Sup. Ct. 831, could not recover contribution for
208'
94 FEDERAL'REPORTER.
their losses, from the cargo,' all.d'that, ' as, a conseqUence, the cargo DWners towards cargi) losses from the carriers."Tb.is.contention of ,claimants is not approved. It is true that under The Irrawaddy Case the carri,erscould not affinnatively demand contribution, because, notwithstanding the exculpation from, the :payment of damages for the loss of cargo, accorded them by the fire and Harter acts, they are deemed guilty of constructive negligence when they seek to'recover contribution for the ship's losses. But this imputed negligence does not exempt them from an action for contribution in general average at the instance of the cargo owner for cargo loss. The cargo owner has such action if the carriers be free from such imputed negligence; and can it be asserted logically that the. carriers, when free from negligence, are liable to the cargo owners, but that this FabiIity is discharged because the carriers are negligent, and such negligence caused the loss? According to such a contention, it is better to be negligent than unoffending. By it the carrier may plead his own wrong to escape an obligation that would be due from him, if he were without fault. The contention that a debtor may absolve himself from a debt by showing that his wrong was the occasion of the obligation violates essential principles, and cannot be otherwise than vicious. Without further discussion, the conclusion respecting the first inquiry is that the owner of the cargo may maintain an action for contribution for the losses of the cargo, although the carriers could not have maintained a similar action for the ship's losses. Thereupon should go into the adjustthe second inquiry arises: What ment,-the cargo losses or both the ship's and cargo's losses? Now, the libelants' contention is that, as the carriers could not assert a claim for contribution, the owners of the cargo (there is a single ownership of the cargo) may invite an adjustment, and exclude the carriers from any beneficial participation, but, on the other hand, impose upon them the burden of contribution. This contention is based upon the theory that the status of the carriers is that of wrongdoers, whether they seek or are invited to a general average adjustment. For. the reaching a correct conclusion the principles underlying average may be considered briefly. When, in a sea adventure, the master of the ship, or some person of equivalent authority" voluntarily and necessarily makes a sacrifice of the ship or cargo" in whole or in part, for, the purpose and residue, or the lives of those on board, with the result of from a common, impending peril, the ship, cargo, and freight earned must contribute proportionally to the, part thereof saved towards making good the loss suffered and the expenses necessarily incurred thereby. The contribution is called general, gross, or extraordinary average. The Star ot Hope, 9 Wall. 203; 3 Kent, Comm. p. 232; Ord. de la Mar. (1683) bk. 3, tit. 7, aud arts. 1-3; Birkley v. Presgrave, 1 East, 220, 228; Walthew v. l\iavrojani, L. R. 5 Exch. 116, 120. ,The broad and equitable nature of the rule primllrily contemplates ratable -:ontribution from all interests saved towards all interests sacrificed. 1 Pars. Shipp. & Adm. p. 338; Ben. Adm.p. 166,
209
§ 295; Abb. Shipp. (13th Ed.) p. 635; Id. (5th Ed;) pp. 347,348. The spirit and intention of this law is to place the persons interested, as far as may be, in the same relative position which they occupied before the peril was met, or "in order to recoup the loser, and place him once more on a footing with his co-adventurers." :YIacl. Shipp. (4th Ed.) p. 688. This intendment involves necessarily reciprocity of obligation and right, mutuality in taking and receiving payment. But, as stated by Judge Brown in Heye v. North German Lloyd, 33 Fed. 60, 64, while "reciprocity is undoubtedly the ordinary rule in general average," there are exceptions to this "reciprocity of right and obligation," as in the case of cargo carried on deck \T'he Paragon, 1 Ware, 322 [see annotations to same in 18 Fed. Cas. 1,085]; Triplet v. Van Name, 2 Cranch, C. C. 332, Fed. Cas. No. 14,176; Heye v. North German Lloyd, 38 Fed. 60, 65), goods shipped without the master's knowledge, the baggage of passengers, clothes of seamen, provisions for the ship, and munitions of war (Id.), These exceptions all turn upon the nature of the goods, the place or circumstance of their carriage. Is there another exception, based on the cause of the impending danger, and the relation thereto of the person whose goods are sacrificed? If the fault of the owner of the ship or cargo was the proximate cause of the peril, he could not invoke the benefit of the law of general average. But when he is brought in at the instance of the cargo owner, his fault, if it existed, was not formerly a matter of consideration. This happened for reasons now to be stated. In Carv. Carr. by Sea, § 373a, it is said: "'I.'he earlier view appears to have been that, where there had been fault, the sacrifice was not to be regarded as a geuernl average act; and, consequently, that no contributions were to be made. but the person in fault was to be looked to. This view is not now taken. 'The Rhodian law, which in that respect is the law of England, bases the right of contribution, not upon the causes of the danger to the ship, but upon its actual presence.' And thus innocent sufferers from a general average sacrifice, necessitated by neglect or other improper conduct, may claim contributions from other inpocent co-adventurers."
The thought here conveyed is that the innocent cargo owner, damaged by sacrifice occasioned by the ship's negligence, is not required to find his remedy against the guilty ship before or instead of resorting to his innocent co-adventurers for contribution; but it is not implied, and probably was not in the writer's mind, that the ship owner could not be made a party to such contribution; nor was it considered whether he might participate in the average, if made such a party. The ship owner at fault was not included as one of the contributees. because he was liable for the whole loss, and therefore there was no occasion for considering his rights or duties in a general average adjustment instituted by his co-adventurers. When he paid the damages upon the theory that he was at fault, he was discharged from further payment in general average, and the sum paid by him was considered in any adjustment between the other co-adventurers. The City of Para, 69 Fed. 414; Paeific }Iail S. So Co. v. New York, H. & R. Co., 20 C. C. A. 349, 74 Fed. 564, 569. If he did not pay, 94F.-14
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and fault was ascribed to him, a general average. suit was not the form of remedY,because thereby he wauld be lcalled upon to pay only a portion of thedmnages for which he wMliable. Hence it is not strange that occasion for decision of the question here involved has not arisen. Undoubtedly, the liability of the owners of the ship for sacrifices caused by her negligence precludei'! them from asserting affirmatively a right to recover contribution for her loss occasioned thereby. This is the former and present rule. The Irrawaddy, 171 U. ,So 187, 18 Sup. Ct. 831; The Nicanor, 40 Fed. 361, 44 Fe"d. 504; The Agathe, 71 Fed. 528; Snow v. Perkins, 39 Fed. 334. The libelants contend that,as a consequence of this rule, it must be held in the present case that the carriers, declared innocent by the statute, absolved from all liability by the statute, defended by the statute from all payment of damages based on a claim 'of breach of duty, and so adjudged by the court, must respond in damages, as if for breach of the same alleged duty, in an action for general average contribution; and that in so responding they are not only subject to the usual adjustment of all losses and savings, which is undoubted, but that they must be excluded from recovering any of their losses, and, on the other haud, contribute for the losses of their co-adventurers. That is to say: (1) Should A., cargo owner, sue B., ship owner, in a direct action to recover $2,000 total damage to cargo, he may not recover, because B. has been guilty of no bueach of duty owing to A. (2) But A. may institute an action for general average. and recover from· B. (a) whatevellsum B. should contribute under the usual rules of reciprocity obtaining in general average; also (b) a certain additional sum upon B.'s nonexistent breach of duty, which recovery is effected by excluding B.'s losses from the average upon the theory that he is a wrongdoer.· This last-sum, so alleged to be recoverable in general average, is some portion of the sum which. would be recoverable in a direct action if there had been an actionable breach of duty, and Which is not recoverable in such direct action because there is no breach of duty whatsoever. Hence, by this theory, A. may recover in general average pro tanto on the theory of B.'s guilt what the pUblic law declares that ok should not recover at all, for the precise reason that B. is innocent. . Hence; if B.'s'loss is $2,000 and saving $2,000, ahd A.'s loss is $2,000 and saving $2,000, under the usual -rules of reciprocity A. can recover nothing from B.; but if B. be regarded as at fault, and thereby excluded from participating, except to contribtite,Minust pay to A. one-third of his loss, or $666.66. This is just one-third of the whole sum that A. is not permitted to recover in· a direct action. It is no· ans"o/er to this palpable evasion of the statutes to say that A. is not recouped for all his loss. ! by B., but orilyfor a part()f them. His recovery, so far as it extends, is based on a nonexistent legal wrong; and a general average acti()n, which is" declared not to be based on tort (Ralli v. Troop, 157 U. 8. 386, "403, 15 Sup. Ot. 657), is so far on a tort, which has no being in fact, as to allow A. to recover not only the usual average contribution, but additional damages based on B.'s alleged wrong. A clear evasion of the statute results from such doc-
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trine.' The proof of the evasion does not rest upon theory alone, but upon mathematiCal demonstration. But it is uI'ged that the libelants' claim is the logical outcome of 'rIle Irrawaddy Case. On the contrary, it is considered that the supreme court suggested no holding that supports any such perversion of the statutes. In The Irrawaddy Case, B., ship owner, sued A., cargo owner, for contribution. The old rule was invoked that B.'s sacrifice was caused by the negligence of B.'s servants. To this it was answered that the Harter act relieved B. from liability based upon the negligence of his servants. To this it was replied that the Harter act relieved B. from paying any damages based upon his negligence, but did not authorize him to maintain an action for contribution to his own losses against his co-adventurers. In that case the ship owner was claiming (1) that the Harter act relieved him from the obligation to pay the cargo owner's losses, which no one disputed; (2) that the Harter act authorized him to initiate an action in general average to recover pro tanto the losses of his ship, which was denied upon the theory that relief from liability for the loss of the cargo owner did not give him a right to maintain an action to recover for the ship's losses. The decision is tantamount to this: The ship owner may use the Harter act to shield himself from any claim for damages made against him, based upon breach of duty, hut may not use the act al:l the basis of an action in his own The decision does not practically diminilSh the benefit of the Harter act. That act gives immunity, under suitable states of fact, from claims based on constructive negligence. It does not confer causes of action upon the ship, but deprives cargo owners of causes of action against the ship. The benefit of the act is left whole and sound by the supreme court. Now, it cannot matter in what form of action the cargo owner seeks to recover damages from a ship owner protected by the statutes. He can no more do so under the guise of an action for general average contribution than in a direct action, provided in the former case he seeks to exclude the ship owner from the situation of a creditor; otherwise, the Harter act is not left untouched, is not left whole and sound for the ship owner's protection, but is violated quite as obviously and grossly as if the action had been direct, save as respects the amount of the recovery. In such case the cargo owner asserts and establishes something besides general average. He asserts and establishes a particular average, in a general average proceeding, and recovers thereon. In The Irrawaddy Case the supreme court could declare that by its holding it left the Harter act in full effect, and- the ship owner in full enjoyment of it, and in full protection from it. That is literally true. In the present case, if the libelants' contention prevail, the actual result would be that (1) the ship owner would be deemed guilty. of actionable negligence; (2) by reason of such negligence an action could be maintained against him to recover a sum of money from the payment of which the statute acquits him. This court, in an action between the same parties, has decided that the claimants were not negligent, and that they shall pay no damages based upon an allegation of negli-
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94 FEPERAL REPORTER.
genc,e. The court is now asked to adjudge, in an action between the same parties, that the claimants were negligent, and should pay damages therefor. The judgment in the first action, until reversed, is forever an estoppel between the parties as to. the fact of the claimants' negligence; and it is thought that no instance exists in jurisprudence of the anomaly presented by the libelants' contention that, notwithstanding the estoppel between the parties, the fact found by the judgment in the first cas.e against the libelants may be disre· garded, .and the opposite thereof, viz. that the claimants were negligent, and that they should pay damages by reason thereof, should be found and invoked in their: behalf. The supreme court in The Irrawaddy Case could say,to the ship owner, "All that the Harter act gives you is reserved to you by this decision." Such could not be said if the libelants'views were adopted here; and because it cannot be said, and because the opposite view is practically consistent with The Irrawaddy Case, this court has arrived at the following conclusions: 1. The fire and Harter statutes intend to relieve ship owners, in case of compliance therewith, from any .liability to cargo owners for injury to cargo. 2. Such statutes do not give the ship owner any new right to the cargo owner for injury to the ship caused by the peril. ·3. The cargo owner cannot, under the guise of an action for contribution in general average, recover upon the basis of the ship owner's alleged constructive negligence a portion of the damages, which upon the same alleged grounds he could not recover in a direct action. 4. While the ship owner, fr·eed from liability by the statutes, may not invoke an action for general average adjustment, to obtain payment of his own losses, the cargo owner may do so; but, as the statutes prevent his recovering any damages based upon the ship owner's alleged negligence, the cargo ownerinay not, in the adjustment invoked by him, derive any benefit from such alleged negligence. 5. In such case the usual rule of reciprocity of right and obligation exists, and the adjustment should be made as if there was no negli· gence in the case, theve being none in fact on the part of the owners. There is some contention respeeting the valuation of the ship. This subject was not presented orally. A fuller history than that dis· closed by the briefs is needed for intelligent decision, and the matter is left for further presentation. It is now decided that the libelants may maintain the action, and recovclI, if they shall.show some balance due to them on an adjustment based on the property lost and saved by the ship owners and by the cargo owners, irrespedive of any element of negligence by the officers and crew of the ship.
THE BARNSTABLE.
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THE BARNSTABLE. (Circuit Court of Appeals, First Circuit. May 11, 1899.) No. 249. SHIPPING-CONSTRUCTION OF CHARTER PARTy-RISK OF COLLISION.
A provision of a charter party that "the owners shall pay for insurance on the vessel," to be given any effect as between the parties, must be construed as requiring the owners to insure against all such losses as would otherwise fall on the charterer; and, where the owners failed to procure insurance, they made themselves insurers, and cannot cast upon the charterer the burden of paying damages recovered against the vessel for collision, against which they might have insured.
Appeal from the District Court of the United States for the District of MassachusettB. J. Parker Kirlin, for appellant. Charles T. Russell, for appellee. Before PUTNAM, Circuit Judge, and WEBB and ALDRICH, District Judges. ·WEBB, District Judge. Little need be added to the careful opinion of the district judge in this case (84 Fed. 895), which is a case of contract between the owners and the charterers of the steamship Barnstable. There can be no controversy as to the terms of the charter, for it is in writing and is in evidence. The difference relates to the twenty-second article of the charter, which is in these terms: "The owners shall pay for the insurance on the vessel." What are the obligations imposed by this provision of the contract? In argument there has been some diBcussion conceming the mutual relations, under the charter, between the parties. The ·owners COllteud that the charterers ,vere bailees, and held to all the liability of bailees, and this contention the charterers controvert. \Ve do not think that the determination of that question will aid in the deci sion of the case; for ·whether or not, in the full and strict sense, the dlHrterel'S were bailees, they would be, independently of this insurC'lau8e, ehargeable with some of the risks of the ship, while the owners would bear others. Assumption by the owners of insurance against risks atfecting themselves alone would be of no advantagr' to the charterers, who would, in no event, be answerable for losses arising from such risks, and had no interest in insurance against sueh losses. The insertion of this clause in the charter has no meaning unless it be to make such insurance as would profit the char·terers. whil'h could onlJ be by insurance against losses which would fall upon them, against all risks attaching to them. This insurance dause must have been intended for their protection, and could han' been understood by them in no other way, and the agreement of the owners was not to partially, but whollJ, protect them, and to reo lieve them of the expense of insuring themselves. In effeet, it said to the charterers: "Your only responsibility will be to pay the hire of