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to action by our fiat. This would reverse every principle on which our government have acted for fifty-five years; and force, by mere judicial power, upon the other departments of this government and the states of this Union, the recognition of the existence of nations and states within the limits of both, possessing dominion and jurisdiction paramount to the federal and state constitutions. It will be a declaration, in my deliberate judgment, that the sovereign power of the people of the United States and Union must hereafter remain incapable of action over territory to which their rights in full dominion have been asserted with the most rigorous authority, and bow to a jurisdiction hitherto unknown, unacknowledged by any department of the government; denied by all through all time; unclaimed till now; and now declared to have been called into exercise, not by any change in our constitution, the laws of the Union or the states; but preexistent and paramount over the supreme law of the land.'
Thus far Judge Baldwin: and what can we ask further? The question seems to be exhausted by the discussions in this case. It has been solemnly decided that the judicial power extends not to the Indian tribes as foreign states, and in this result, either because an Indian tribe is not a state, or because it is not a foreign state; it appears to me, the public opinion will acquiesce. The whole Report is valuable for the arguments of counsel as well as for the separate opinions of the respective judges, and is calculated, for research, rhetoric, and reasoning, to do credit to the country.
ART. VI.-QUESTION AS TO PARTIAL LOSS ON FREIGHT.
Whether, in case a ship puts into port to refit, and unloads for this purpose, the storage and other expenses incurred on the cargo on shore, should be included in the general average, or be considered a particular average on the freight?
THE ship Sarah Parker, with a cargo of cotton, sailed from Mobile for Liverpool, but struck on the bar at Mobile, which occasioned her to leak badly, and rendered it necessary to unlade her, that she might return and receive the repairs which
were requisite to make her seaworthy. Upon her arrival at Liverpool, a statement of the loss was made by a despacheur according to the usage in that place; and the expenses of unlading the cargo and getting her off, and of returning to port, and of relanding and storing the cargo, were assessed in general average: those of the subsequent storage and other expenses incurred on the cargo on shore, were charged to that interest in partial loss; and those of reshipping the cargo were charged to the freight,amounting to £346 15s. 5d., as partial loss ; and the accounts were settled accordingly by the master. The freight valued at £1213, was insured by underwriters in Boston, and they resist the claim made for the reimbursement of the £346 15s. 5d, on the ground that by the custom of insurers in Boston, and the principles regulating the contract of insurance, these charges should have been put to the general average.
Upon this statement a question arises whether these charges were properly made according to the laws and usages regulating the contract of insurance in Massachusetts ?
If the injury sustained by the vessel had been voluntarily done by the master, for the common benefit of the vessel, freight and cargo as, for instance, if it had been a voluntary cutting away of her masts, or a voluntary stranding, with the view and in the expectation of thereby saving the whole there could be no doubt, that the position taken by the insurers would be sound, for the expenses of preserving and reshipping the cargo, being the immediate consequences of this voluntary sacrifice, would be as obviously chargeable in general average, as those of repairing the injury itself.
But this is a very different case. The damage sustained by the vessel was not voluntary, but accidental, and by a peril affecting the interests of all parties, without any sacrifice of the property of one for the benefit of the others; and therefore all the consequences of that injury to the several interests, pertain to them respectively, without giving to either a right to claim contribution of the rest.
If, then, we can plainly distinguish the damages occasioned to each interest by the stranding, from those occasioned by the voluntary sacrifice made, we can readily adjust the mutual rights of the parties by reference to the first principles upon which the right of contribution in general average is founded.
What then was the voluntary sacrifice made, and what were the expenses consequent upon it? for they alone are thus chargeable.
Now it is apparent that the unlading of the cargo to enable the vessel to get off the bar and return to the port, and the expenses of her return, were voluntary sacrifices, made for the benefit of all the parties, being necessary for the preservation of the vessel, freight and cargo; and as the cargo was thus removed for the benefit of all, the owner had an equal right to insist upon its being carried, and deposited in a place of security, that is, in suitable warehouses. And there can, I think, be no doubt that the expenses of these proceedings are justly chargeable in general average.
But here the consequences of the voluntary sacrifice or expenditure cease. The vessel, after the unlading and her return to port, is in perfect safety, independently of the cargo; and the cargo independently of the vessel.
The damage done to the vessel, and the expense of her detention in port, were not occasioned by the voluntary sacrifice of unlading and carrying her back, but solely by the stranding, and were the necessary consequences of the happening of that peril to her and so too the expense of repairing and preserving the cargo, and its detention there, were not occasioned by or in consequence of the voluntary sacrifice, but in consequence of the inevitable peril and in like manner the expenses of reshipment are not the consequence of the voluntary return and unlading, but of the accident which rendered such voluntary sacrifice necessary. The voluntary sacrifice was made to restore the property to safety, and that being accomplished, the other results of the accident must be borne by the parties on whom they respectively fall. These results are obvious, when we reflect that the unlading of the cargo, its safe preservation, and its reshipment, are consequences of the stranding, just as necessary and inevitable, if the vessel were not repaired in order to complete the voyage, as if she were; and that the delay, and expenses of the vessel while undergoing repairs, are just as necessary, if the cargo were sold and the voyage terminated there, as if it were to be pursued: they are not therefore to be considered consequences of the voluntary return, but of the accident. The true statement doubtless is, that these proceedings
and the return, are all consequences of the stranding, but the latter alone is a voluntary one, and that alone, therefore, which is properly a subject of general average.
The expenses occasioned to the cargo by the stranding, independently of the voluntary sacrifice above stated, are, justly speaking, no more chargeable in general average, than those of repairing the ship; they seem to me to stand precisely on the same ground.
It is clear, that the after-storage and reshipment of the cargo, are not necessary for the preservation of the vessel; she would exist as securely without, as with the cargo; nor would the omission to reship it affect her capacity to earn freight; nor indeed affect the freight at all, if the failure to reship were voluntary the keeping and reshipment of the cargo, therefore, is not a sacrifice made, or expense incurred, for the preservation of the vessel, or freight, as such. But it will be said that these expenses are incurred for the general benefit, to enable the parties to complete their voyage, which was a joint undertaking, and should therefore be proportionably assessed upon all. Properly speaking, however, the voyage is not such a joint undertaking as necessarily involves a joint interest, for the loss of it may constitute a loss of the cargo, and yet not be one of the vessel. Thus if the cargo be so damaged as to be unfit for reshipment, though not injured to half its value; or the delay in making repairs render a sale necessary, there would be a constructive total loss of the cargo, and perhaps of the freight, but not of the vessel: and therefore, as the reshipment of the cargo is not necessary to prevent a loss of the vessel, and in fact has no necessary effect in relation to her safety, why should her owners be required to contribute for the expenses of it? The only benefit to them, by the reloading, is the restoration of their right to freight; but the reloading is not necessary even for this purpose, if they were ready to receive it, and the shipper refused to reload it; and in any event it affects the ship-owner's interest in the freight only, and not in the vessel, which are entirely distinct interests.
In order to elucidate the subject more clearly, let us suppose the vessel to have been chartered by the master, for a general freighting voyage; the vessel will be then represented by the owner, the freight by the master, and the cargo by the ship
per: and, in all these discussions, their interests are to be regarded as essentially distinct, even where the owner of the ship is entitled to the freight himself.
Now it is clear that all these were benefited by the unlading and return into port: it was the only means of saving the cargo, and vessel, and, consequently, the freight and for this, therefore, they should contribute according to their respective interests.
But who was benefited by the subsequent storage of the cargo? Clearly not the owner of the vessel; his right of property, and the safety of his vessel, were not, in the slightest degree, dependent upon the preservation of the cargo; his condition would be the same whether it were saved or lost, shipped or not shipped. Nor would the master be necessarily benefited by its preservation. It is true that if it were destroyed by inevitable casualty, he might lose his claim for freight; but if the shipper should choose to sell the cargo there, the full freight would be nevertheless due: yet it would not be pretended that, in such case, the shipper could claim contribution for the storage. At any rate there could be no mutual interest, except between the master and shipper, in this respect; and as far as the owner of the vessel is not concerned, this expense would not be chargeable in general average.
Then as to the expenses of reshipment, who is benefited by that? Clearly not the owner of the ship, for the reasons above stated and it seems to me as clear that the shipper is not so benefited, for by the terms of his contract with the master, het is entitled to have the cargo carried to his port of destination; and the master is imperatively bound so to carry it, the disas ter notwithstanding, if it be possible for him to make his vessel fit to do so. This is not only a condition essential to entitle him to his freight, but of an obligation that makes him answerable for all damages which the shipper might incur by his neglect or refusal to repair his vessel and carry on the cargo. The shipper has nothing more to do, than to present the cargo for loading, as in the first instance, and the obligation of the master to receive, and ship, and carry it, is perfect, without any further act on the part of the shipper. If the master refuse so to receive and carry it, he is the only loser; for he would thereby forfeit his right to the freight. The shipper could not, in law, be considered a loser by such refusal, for his right of action against