Weston et al. v. Train et al.

I believe these principles will enable the assessor to dispose of all the items except the cost of the bottomry bond.

In respect to the claim for the cost of raising money at Fayal, I am of opinion that the owners are entitled to be paid the reasonable and necessary cost of raising so much money there, as was spent by the master there on account of the charterers. Whether these funds could and ought to have been obtained at a less cost than was actually paid by the master, is a question to be passed on by the assessor, to whom the accounts will be referred. He will allow to the libellants the necessary and reasonable expenses, incurred on this account. I do not adopt, nor do I reject, the cost of the bottomry loan, as the standard to be applied to the case. If the master could reasonably have obtained the necessary funds in some other way, at a less expense, only that lesser expense is to be allowed. On the other hand, if he adopted a reasonable mode of raising the necessary amount, and paid no more for it than, under the circumstances, it was fairly worth, and had not the ability to raise funds there, on the credit of the owners, then the cost of the bottomry loan affords the proper rate of charge. I do not consider the owners of the vessel bound to send funds from hence to Fayal, to pay the charges which the charterers were bound to pay. These charges were their burden; and the master, in raising the money to pay them, acted for their account, and so far as he acted reasonably, the charterers are bound. Nor do I consider the charterers exempted from this charge by the failure of the owners to call upon the firm of Train & Co. here, to send funds to Fayal. If Train & Co. had admitted their liability for any part of these charges, the case would have been different. But having assumed the ground that the charterers were not liable at all, I have no reason to suppose they would have made any provision for funds in Fayal, if they had been requested to do so.

It was argued that, as the master, before sailing, gave a

Weston et al. v. Train et al.

bond to the crown, conditioned to perform all the requisitions of the British Passenger Act, this placed him, and the owners, upon the same footing, as the passenger tickets given by the charterers. But I do not so consider it. The passen ger tickets were evidences of an actual contract between the charterers and passengers, in consideration of the passage money received by the former from the latter. The bond is merely a security, required by positive law, for reasons of public policy, creating no privity between the owners and the passengers; it is founded on reasons of public policy, and not on any consideration received by the owners from the passengers; and is in its nature collateral to the actual contract between the passengers and charterers. I have not, therefore, allowed to the bond any weight, in considering the relative rights and duties of the owners and charterers.

case.

It was also urged, that the clause in the charter-party respecting insurance, showed that the ship took the risks which caused the expenses in question. The meaning of this clause is not clear; but I am not satisfied it has any bearing on this The best interpretation I have been able to place upon it is, that inasmuch as the owners and the master, by force of the British Passenger Act, might be subjected to expense, equalling the passage money, to send forward the passengers, in case of detention of the vessel at an intermediate port, for a longer period than six weeks, during the voyage, it was agreed that they should be insured against this risk at the cost of the ship. It may be, also, that there were other risks of a like kind, intended to be covered by such a policy. I have not thoroughly examined the Passenger Acts, to see what they were, if any; because it does not seem to me, that obtaining such insurance, against risks imposed by positive law, has any tendency to prove, that as between the owners and charterers, the former were to supply the passengers during the voyage or any part of it. The owners might well say, though it is your duty to supply the passengers, yet for rea

Sturgess et al. v. Cary et als.

sons of public policy we are also made liable to do so by positive law; against the effects of this liability, we shall insure at our own cost, and you, as our agents, shall obtain the policy.

It was also insisted, that all the expenses incurred at Fayal on account of the passengers were general average charges. There can be no doubt, if the passengers had been so many bales of merchandise, the expenses incurred at a port of necessity, would have been general average charges. But as they were men, women, and children, who neither receive, nor contribute in general average, the law on that subject has no application to them, or to the expenses incurred in their behalf.

The case must be referred to an assessor to determine the the amount which the libellants are entitled to recover upon the principles above declared.

LOTHROP L. STURGESS et al. v. THOMAS G. CARY et als.

A Court of Equity has jurisdiction to take an account of a general average loss, and decree contribution among those entitled to receive and bound to pay.

If a vessel, at anchor, is dragging towards the shore in a gale, but is in imminent danger of beating to pieces on rocks before reaching the shore, and to avoid this danger the master voluntarily slips the cables and allows the vessel to be thrown on the beach, whereby the cargo is saved, this is a general average loss, though no selection was made of a place of stranding.

THIS bill in equity was filed by citizens of the States of New York and Connecticut, owners of the bark Vernon, and certain insurance companies incorporated by laws of New York, and doing business in that State, against the owners of the cargo of the bark, citizens of the State of Massachusetts,

Sturgess et al. v. Cary et als.

to obtain an adjustment of a general average loss and payment, by the defendants, of their contributory shares.

The case made in the bill was, in substance, as follows:"Your orators allege that on the tenth day of February, A. D. eighteen hundred and fifty-three, the said Sturgess, Clearman, George Bulkley, and Walter Bulkley, were owners of a certain vessel — a bark called the Vernon—and that the said several corporations were insurers thereon, to the full amount of her value, against the perils of the seas, and other perils in the policies of insurance mentioned; that on the tenth day of February, said vessel was laden with a cargo of cotton and merchandise, owned by, and consigned to, the said several defendants, as appears by the bills of lading, here in Court produced, and made a part of this bill; that on said tenth day of February, said vessel set sail and departed from Appalachicola, in the State of Florida, bound for Boston aforesaid; that on the night of the first day of March then next ensuing, said vessel was in Massachusetts Bay, in a heavy gale, and was driven with great force and violence on to a rock, and, after striking for some time, beat over into deep water; that then both anchors were let go with about thirty fathoms of chain, when breakers were discovered under the stern; that said vessel rode at her anchors till daylight, dragging a little every time she struck, at daylight it was discovered that said vessel was inside some of the Cohasset rocks, so called; that about nine o'clock A. M., said vessel commenced to drag and strike very heavily, when more chain was payed out to prevent her stern from striking on a rock; that said vessel was thrown with great force and violence on the rocks, beat over, and was exposed to the full fury of the sea, which struck heavily on her broadside; that said vessel was then, and the cargo on board of her, was also in imminent danger of being totally lost and destroyed by the action of the wind and sea; and that the master thereof, after consulting with his officers, deemed it expedient for the safety of said vessel and cargo

Sturgess et al. v. Cary et als.

and the lives of those on board, to slip the cables and run her ashore; that, accordingly, the cables were slipped, and the vessel run ashore on to the beach.

"Your orators further allege that, afterwards, the cargo on board said vessel was safely landed and delivered to the said defendants respectively, and that the said vessel was afterwards got off, and the damage occasioned by her being so voluntarily stranded, repaired.

"Your orators further allege that said vessel, her freight and cargo, were in imminent danger, and would, in all probability, have been totally lost, if the cables had not been slipped, and said vessel run ashore as aforesaid; and that by the said voluntary stranding, the same were saved and preserved to the respective owners thereof.

"Your orators further allege that by the said voluntary stranding, great damage was done to said vessel, and heavy expenses incurred in consequence thereof, and in getting her off and repairing said damages, and that the owners of said vessel are entitled to demand and receive of the owners of her cargo their respective proportions of the damage, loss, and expenses so incurred, the same being a sacrifice made and incurred by the owners of said vessel for the common benefit of the vessel, cargo, and freight, and all interested therein.

"Your orators further show that in consequence of the damage suffered by said vessel as aforesaid, the owners thereof abandoned the same to the said corporations, the insurers thereon, and that said corporations accepted said abandonments, and paid the sums by them respectively insured, and thereby became assignees of, and subrogated to, all the rights of the owners of said vessel, to demand and receive a contribution from the owners of the said cargo, for the damages, losses, and expenses so incurred for the general benefit.

"Your orators further show that on the thirtieth day of July last past, they caused to be prepared a general average adjustment, showing the amount of the losses, damages, and ex