# Barnard v. Adams

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## Dissenting Opinion

    Daniel
United States Supreme Court
51 U.S. 270
Barnard v. Adams
THIS was a writ of error to the Circuit Court of the United States for the Southern District of New York.
The defendants in error brought an action in the court below to recover contribution in general average, on account of the alleged voluntary stranding of the ship Brutus owned by them, from the plaintiffs in error, as owners of twenty bales of nutria skins, which formed a part of her cargo at the time of the stranding.
The facts are minutely stated in the opinion of the court.
The cause was argued orally by Mr. Boardman, for the plaintiffs in error, and printed arguments were submitted by Mr. Webster, for the plaintiffs in error, and Mr. Lord, for the defendants in error.
Mr. Boardman, for the plaintiffs in error.
First Point. When the stranding of a vessel is inevitable, and her master, in the ordinary exercise of his duty as a navigator, directs her course to that part of the shore which he supposes to be the safest for the vessel, such act of the master does not render the stranding a voluntary sacrifice, or entitle the ship-owner to contribution from the owners of the cargo in general average.
I. The following authorities may be cited in support of the judgment below, but they do not sustain it. Columbian Ins. Co. v. Ashby, 13 Pet., 337; Sims v. Gurney, 4 Binn. (Pa.), 513; Reynolds v. Ocean Ins. Co., 22 Pick. (Mass.), 191.
II. The following authorities fully sustain the plaintiffs in error on this point. Taylor v. Curtis, 1 Holt N. P. Cas., 192, n.; 3 Eng. Com. L., 69; Walker v. United States Ins. Co., 11 Serg. & R. (Pa.), 51; Meech et al. v. Robinson, 4 Whart. (Pa.), 360; Scudder v. Bradford, 14 Pick. (Mass.), 14; Abbott Shipp., Perkins's ed., 490 & n.; Id., 480; 2 Phillips Ins., 98.
III. The only voluntary sacrifice made was in the slipping of the ends of the chains. Walker v. United States Ins. Co., 11 Serg. & R., (Pa.), 66; Nickerson v. Tyson, 8 Mass., 467.
Second Point. The cargo, if chargeable at all, should have contributed according to its value at Buenos Ayres. Spafford v. Dodge, 14 Mass., 79; Mutual Safety Co. v. Cargo of the George, 3 N. Y. Leg. Obs., 262, and 8 Law Rep., 361; Tudor v. Macomber, 14 Pick., (Mass.), 38; 3 Kent Com., 242; Abbott Shipp., Perkins's ed., 504 n.
I. The enterprise was terminated, and the affreightment dissolved, by the loss of the Brutus, before commencing the intended voyage. Dunnet v. Tomhagen, 3 Johns. (N. Y.), 156; The Saratoga, 2 Gall., 178, n. 23, cases cited; Scott v. Libby, 2 Johns. (N. Y.), 340; Purvis v. Tunno, 2 Bay, (S.C..), 492.
II. The power of the master to re-ship the cargo, and thus to continue the enterprise, extends only to cases where the ship is lost or disabled in the course of the voyage. Shipton v. Thornton, 9 Ad. & E., 337; Jordan v. Warren Ins. Co., 1 Story, 342; 3 Kent. Com., 210; Searle v. Scovell, 4 Johns. (N. Y.) Ch., 223; Treadwell v. Union Ins. Co., 6 Cow. (N. Y.), 274; Saltus v. Ocean Ins. Co., 12 Johns. (N. Y.), 112.
III. Buenos Ayres being the place of valuation, the jerked beef should have been included among the paying articles, according to its value at that place.
Third Point. The owners of the Brutus were not entitled to the wages and expenses of their master and crew for any time after it was ascertained that she could not be got afloat.
Fourth Point. The charge of two and one half per cent. as commissions or compensation to the plaintiffs, for collecting the contributions due to themselves, ought not to have been allowed.
First Point. The first question in this case is of the highest importance in point of principle. The error of the judgment under review seems self-evident. It is indeed a paradox. It amounts to this: that if a navigator, whose ship is inevitably doomed to loss by stranding, should consult his own judgment, and select, for his compulsory voyage to the shore, the route less perilous for himself and his vessel, such preference for the safer course is the incurring of a voluntary sacrifice, which entitles him to compensation.
Or it may be stated in this way: a mariner, whose ship is thus inevitably doomed, cannot avoid becoming entitled to contribution in general average, unless he blindly forbears all action whatever, or navigates with an express view and purpose to effect the destruction of the adventure. Neither reason nor authority affords support to this extraordinary doctrine.
'General average is founded on the simple principle of natural justice, that where two or more parties are concerned in a common sea risk, and one of them makes a sacrifice for the common safety, the loss shall be assessed upon all, in proportion to the share of each in the adventure; and the greater sacrifice of the first shall be compensated by the contribution of the others.' Taylor v. Curtis, 1 Holt N. P., 192, n. 3 Eng. Com. Law 69. Its origin is commonly traced to the Rhodian law de jactu, which named only the case of a jettison; and, although the rule is not to be considered as thus limited, yet the case there put is an apt illustration, and no case essentially different from this illustration can fairly be considered within the rule. Goods cast overboard in a storm to lighten the vessel, masts, spars, or rigging cut away to prevent her being driven ashore, or carried away in an effort to avoid, by some unusual means, an impending calamity, running a ship on shore to avoid capture, slipping a cable or an anchor for general safety, are the usual instances found in adjudged cases. Perkins's Abbott on Shipping, 480 notes. They are all within the illustration given in the Rhodian law; and upon principles of natural justice, are proper cases for contribution.
But when a ship does no more than pursue that course of navigation which, independently of the good or evil thence resulting to cargo, is most safe for herself, how can she be said to encounter a peril or incur a loss for the benefit of her cargo? This is not answered by the precedents of allowance for parts of the ship or her tackle jettisoned for common benefit; because, although it might be proper to make such sacrifice for the benefit of the ship alone, were she empty, yet the act is the separation and destruction of a part for the benefit of the community of interests which still remain as such contending against the common danger. Not so, when the ship is run ashore as the safest direction which can be given to her; then the whole community goes together, taking the same direction and encountering the same peril. It is a mere accidental result, that the ship suffers more than the cargo.
The Brutus was not voluntarily sacrificed. On the contrary, she was lost by the direct and unavoidable operation of a vis major, unaided by any volition of mind or agency of man. The gale commenced on the 8th of October, at 4 A. M., and continued through that day and until the evening of the next, when it blew a hurricane. At 9 o'clock the best bower chain broke, and at 10 the small bower gave way. The vessel was then at the mercy of the elements. There was no possibility of avoiding a stranding. The mate who had the command of the vessel says especially that it was impossible to avoid going ashore, and that all he did was to make sail for and reach a place where she could be stranded with the chance of the least damage. To say that there was a voluntary stranding is an absurdity; as well might it be said that a man who jumps overboard from a burning vessel, and is drowned in the attempt to reach the shore, voluntarily drowns himself. The case admitted of no alternative.
It is a rule, that the mind of man must concur in producing the injury which shall entitle a party to compensation in general average. Here the mind operated only to diminish the sacrifice as much as practicable, and not to produce it.
It is well remarked in the note to Holt's Nisi Prius Reports before referred to, that 'there are some cases on the subject of general average in the reports, but there is not much to be collected from them. The safest guide is principle, well studied and understood.' 3 Eng. Com. L., 70.
Some of the cases, however, may be looked into with advantage. The Supreme Court of New York, by Kent, Ch. J., in Bradhurst v. The Columbian Ins. Co., 9 Johns. (N. Y.), 14, decided that, if the ship be wholly lost by the act of running her ashore, compensation in general average can never be due to the owners, or, as it has been technically expressed, that in all cases of stranding, the salva navi is indispensable to a recovery. 13 Pet., 334. This decision was made in 1812. It gave rise to much discussion. Mr. Justice Story, in his note to page 349 of the fourth American edition of Abbott on Shipping, took ground against the doctrine of Kent.

## Notes

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