POTTER v. OCEAN INS. CO., 19 F. Cas. 1173

STORY, Circuit Justice. Upon most of tlie exceptions which have been argued, I do not think it necessary to make any particular remarks, as the reasons given by the auditor for his allowance and disallowance of items are entirely satisfactory to me. Indeed, considering his acknowledged professional learning, and great experience in this branch of the law, it would be difficult not to give his opinion great weight as to the practical adjustment of losses.

In respect to the leading objection which has been taken to the report, that it allows the expenses of wages, provisions, &c., of the voyage back to New Orleans, as in the nature of a general average, the jury have found that the voyage was a voyage of necessity for repairs to a proper and convenient port. According to the established doctrine in the Massachusetts courts, the wages and provisions of the crew, and other expenses, on such a voyage of necessity constitute a general average. It was so held in Padelford v. Boardman, 4 Mass. 548, and Clark v. U. S. Fire & Marine Ins.

Co., 7 Mass. 365, See, also, 1 Phil. Ins. 348, 349; 2 Phil. Ins. 241, 242. But the argument is, that here there was no cargo on board, and that there can be no contribution by freight or cargo; but the whole is to be borne by the ship; and that, therefore, it is a particular average on the ship, and not a general average. The argument proceeds upon the ground, that what is, and what is not a general average, does not depend upon the nature and objects of the thing done, or sacrifice made, for the general good; but solely upon the point, whether there are in fact different contributory subjects.

I do not so understand the law. As I understand it, the rule, as to what constitutes a general average or not, is founded upon the consideration, whether it is for the benefit of all, who are, or may be interested in the accomplishment of the voyage; or only for the benefit of a particular party.

Suppose a person to be owner of the ship and cargo, and of course ultimately of the freight also; and he should insure the ship, cargo, and freight in three different policies, by different offices, if a jettison should be made, or a mast be cut away, or any other sacrifice be made for the common benefit of all concerned in the voyage; there can be no .doubt that this would be a case of general average; and the underwriters on ship, cargo, and freight must all contribute as for a general average.

What possible difference in such a case could it make, that the same underwriters were underwriters in one policy on the ship, cargo, and freight? or that the owner singly had no insurance at all, or an insurance upon one only of the subjects put at hazard? Must not the loss still be treated in the contemplation of law, as a general average, or in the nature of a general average? As I understand it the phrase, “general average,” as found in our policies of insurance, is used in contradistinction to particular average.

It means a voluntary sacrifice for the benefit of the voyage, and not merely an involuntary encounter of a loss without action or design. It looks to the efficient cause of the loss; and not to the effects of it. It looks to the consideration, whether the act is intended for the benefit of all concerned in the voyage; and not in particular to the consideration, who are to contribute towards the indemnity. To be sure, if the owner stands as his own insurer throughout, the question degenerates into a mere distinction; for it is a pure speculative inquiry.

Not so, when there is an insurance; for in such a case, the underwriters are, pro tanto, benefited by the sacrifice or other act done; and they are, in a just sense, bound to contribute toward it. In the present case, the insurance was not upon any particular voyage; but it was on time. Unless the owner had a right to repair the bark so as to perform other voyages, within the year, at the expense of the underwriters, he must have had a right to abandon to the underwriters for a total loss; for in her erippled condition, the bark was incapable of any further employment.

The going to New Orleans, therefore,' was not

an act solely for the benefit of the ship-owner; but was for the benefit of the underwriters, also, to save them from a total loss. The plaintiff was bound to repair, if he could, and to seek some convenient port for that purpose;' and the expenses of going thither were properly incidental expenses to the repairs, in . the nature of a general average, to replace the bark in the condition in which she was before the accident. If the plaintiff was not fully insured, he must contribute bis proportion toward the common expenditure in going to New Orleans.

If he was fully insured, he has only shifted the whole loss upon the underwriters. The expenses of going to New Orleans are just as much a matter of general average, as would have been the expenses of towing the bark into port, if she had become water-logged, or incapable of getting to a place of repairs, without the employment of an additional crew. Suppose, after the disaster, and arrival at Tampico, it had been necessary to employ a steamboat, to tow tiie bark to New Orleans to repair, would not the underwriters have been liable to pay the expenses as in the nature of salvage?

If, in order to constitute a case of general average, it be necessary, that there should be some cargo on board, or some other things besides the ship at hazard, what is to become of the case of an insurance on an empty ship, whose masts are cut away in a storm, or which, after losing her masts, is compelled to be brought into port by salvors, in consequence of the disabled state of the ship and the crew ? Are not the underwriters bound to pay the loss and the salvage? If so, are not these emphatically charges in the nature of a general average?

Suppose an empty ship, which is insured, is dismasted in a storm, and is compelled to put away into a port of necessity, in order to repair; or otherwise she must be abandoned at sea; are not the expenses of the voyage in such a case to the port of necessity of the nature of a general average? Are they not incurred, as much for the benefit of the underwriters, as for the ship owner? I put these cases, because it seems to me, that they bring the principle of the argument to its true test.

And it seems to me, that it would be an entire novelty in cases of insurance, not to hold that, under such circumstances, the underwriters were liable for the chhrges. as in the nature of a general average. If so, the clause in the policy, that the company are not liable for wages and provisions, “except in general average," is wholly inapplicable, for the present case is brought within the meaning of the exception. I have no difficulty, therefore, in overruling this objection.

In relation to the next point of objection, as to the payment for the loss of the boat; it seems to me to be disposed of by the verdict of the jury. • They have found, that it was a direct consequence attributable to the preceding storm; so that the principle, in case of loss, that, “causa próxima, non re-mota spectatur,” is not at all interfered with. If the bark had become wholly unmanageable and innavigable from the immediate effects of the storm, I do not well see how the direct results from that unmanageableness and iunavigability are to be treated otherwise than as a part of the loss.

The storm is still the causa próxima. In causes of this sort, it will not do to refine too much upon metaphysical subtilities. If a vessel is insured against fire only, and is burnt to the water's edge, and then fills with water and sinks; it would be difficult, in common sense, to attribute the loss to any other proximate cause than the fire, and yet the water was the principal cause of the submersion.

If a vessel be insured against barratry of the master and crew, and they fraudulently bore holes in her bottom, and thereby she sinks, in one sense she sinks from the flowing in of the water; but in a just sense, the proximate cause is the barratrous boring of the holes in her bottom. In relation to the item for the survey at Tam-pico. there are three objections stated in the exceptions to its allowance. First, that the consul had no jurisdiction to order a survey; and that it should have been ordered by a maritime court.

It is certainly the usual practice of courts of admiralty, and I deem it a very useful and beneficial practice, to order surveys in cases of this sort, as a matter of admiralty and maritime jurisdiction within their cognizance, and in my judgment, riglit-fully within their cognizance. But I am not aware that it has ever been held to be indispensable to the validity of a survey that it should emanate from such a source. The object of a survey is to assist the judgment of the master, as to his jn-oceeding to repair damage, or to sell the ship.

It is designed to protect him in the fair discharge of his difficult and often critically responsible duty in great emergencies, by giving him the aid of the opinion of other men of sound judgment. intelligence, and skill in naval affairs. Indeed, this course is so universally adopted in practice, that a master, who should venture to deviate from it, would be treated as guilty of some improvidence, if not of gross rashness and neglect of duty.

A survey is a common public document, looked to both by underwriters and owners, as affording the means of ascertaining upon the very spot, at the very time, the state and condition of the ship, and other property at hazard. In some policies, as for example, when what is technically called the “rotten clause” is inserted, such a document seems indispensable; as the survey may amount to a discharge of the underwriters. See cases on this clatise, Dorr v. Pacific Ins. Co., 7 Wheat. [20 U. S.] 582; Janney v. Columbian Ins. Co., 10 Wheat. [23 U. S.] 411. 410-418; 1 Phil. Ins. 154, 158.

But although surveys are and may be thus ordered by courts of admiralty, I am not aware, as I have already said, that this is an indispensable ra-quis te. On the contrary, a survey may be made upon the mere private application of the master directly to the surveyors; and there does not seem any good reason, why, if an American consul should interpose in behalf of the master, and with a view to assist him, should appoint the surveyors at his request, and thereby sanction their competency to the task, such an appointment should be deemed objectionable.

As a known public officer, the act of a consul would, even if he had no express or implied authority to make the appointment ex officio, be deemed

an act of higher authority, aud more entitled to public confidence. than that of the master himself, and might be an inducement to the surveyors to undertake the duty, with more promptitude and responsibility. But I am not aware, that the issuing of a commission for a survey is, in truth, beyond the rightful authority of a consul in cases of this sort. That depends upon the course of trade and the common functions established by the general consent and customs of nations in regard to consuls.

Our own statutes do not pretend to ascertain, or establish their rights, or their duties generally. but hare merely given them certain authorities. One of these statutes has declared, “that the specification of certain powers and duties, &c., &c., shall not be construed to the exclusion of others, resulting from the nature of their appointments, or any treaty or connection under which they may act.” Act 1792, c. 224, § 9 LI Stat. 257]. Whether acts of this nature are usually done by consuls, is more than I know.

But in the absence, of all controlling proof, the fact, that the consul did make the appointment in this case, affords some presumption that it was a rightful exercise of authority. Be this as it may. there is no ground to say, that it is indispensable that surveys of this sort are absolutely required to be made under the authority of any maritime court, un the contrary, I am strongly impressed, that they are often made under the authority of other magistrates, and often at the mere private request of the master. See Wesk.

Ins., tit. “Certificate,” p. 89; Id. “Damage,” p. 102, | 5; Id. “Estimate.” The other objection to the survey, that the surveyors do not appear to have been sworn, is equally untenable. Theie is no law positively requiring it to be done. The remain'ng point under this head, as to the fees charged by the consul, is unmaintainable; for there is no law fixing his fees in a case of this sort. In regard to the survey at New Orleans, the reasons given by the auditor for the allowance seem to me entirely satisfactory.

It was a proper precaution to guard against any future difficulty in adjusting the loss; it might be important to the underwriters, as well as the ship-owner, as one of the appropriate documentary proofs to establish and limit the extent of the loss. See Benecke & S. Average (by Phillips; 1883) p. 384. In regard to the deduction of one third new for old, the true

interpretation of that rule has always appeared to me to be, that it is strictly applicable only to the labor and materials employed in the repairs, and to the new articles purchased in lieu of those, which were lost or injured by the disaster. It would be strange to apply it to other independent' expenses, which were merely incidental to the loss; for in no just sense can it be said, that the owner is benefited thereby, or that he receives an enhanced value therefrom, beyond his indemnity. I am not aware, that any different exposition of the rule has ever been judicially established. The case of Sewall v.

United States Ins. Co., 11 Pick. 90. so far as it goes, is confirmatory of it, as indeed is the text of the best elementary writers on the subject. 1 Phil. Ins. 371,372; Benecke & S. Average, (by Phillips) 167; Note. Id. 238. 374, 384, 385. For this reason and upon principle. I think, that the deduction allowed by the auditor of one third from the amount of the expense of towing the schooner across the Mississippi ($15), and that of assistance in getting her across and boat hire ($19.50), and that of towing her back ($20), ought not to stand.

It is true, that from the report, it seems to have been the more general practice, though not a universal practice, in Boston, to make the deduction; and the auditor has stated, that this was his sole reason for allowing it, he having no reference to the principles of maritime law on the subject. But though the sum is trifling, I think the practice of making the deduction is inconsistent with principle, and ought not to be permitted to stand. It has a tendency to introduce confusion, and to perpetuate perplexing questions, as to what items are, or are not within the reach of the rule.

If we stand by the purport of the rule in its simple form, as applicable merely to the labor and materials used in the repairs, or in the replacing of lost or injured articles, very little difficulty can arise in its practical application. Upon the whole, my judgment is, that the auditor’s report ought to stand confirmed, except as to the deductions allowed upon these three small items; and, as to them, it ought to be reformed; and the verdict awarded and entered for the plaintiff accordingly. This jurisdiction seems incidentally affirmed in the case of Dorr v. Pacific Ins. Co.. 7 Wheat. [20 U.

S.] 612, 013. and of Janney v. Columbian Ins. Co., 10 Wheat. [23 U. S.] 411, 418. Among my own MSS. is a copy of a decree of the admiralty court at Boston, in 1745. before Judge Auchmufy, in which, upon petition of the master lo survey a vessel [The Three Marys'), she was condemned, and ordered to be sold as unsea-worthy.