Dabney v. New England Mutual Marine Insurance

Bigelow, C. J.

The precise question which this case presents for adjudication is a novel one, but we think that its solution can be satisfactorily reached by the application of a few well settled principles of law to the admitted facts.

The claim of the plaintiff is to recover on a policy of insurance on a vessel belonging to his principal, in whose behalf this action is brought, a contribution to general average for a jettison of a portion of the cargo. It seems to be conceded by both parties, that the controversy between them as to the validity of this claim turns entirely on the determination of the question, w'hether the destruction of part of the cargo was made under such circumstances as to constitute a general average loss. The elements necessary to establish a valid claim for such a loss against an insurer are too familiar and well settled to be the subject of controversy. It must be made to appear that there was a peril of the sea impending over the subject insured ; that a voluntary sacrifice of property on board was made for the purpose of escaping such peril; and that safety from the imminent danger was thereby secured.

In the application of this rule to the present case, a preliminary inquiry suggests itself. It is a rule of the law of insurance, as settled in this commonwealth, that in addition to the implied warranty of seaworthiness which applies to the condition of the vessel at the commencement of the voyage, and which must be strictly complied with, it is also an obligatory duty on the part of the insured to keep her during the voyage insured in a suitable condition for the service in which she is engaged ; and if he fails to do so, either through his own neglect or by the fault of his agent the master, and a loss happens which is attributable to that cause, the assured and not the underwriters must bear it, because it is a breach of his implied undertaking. Copeland v. New England Ins. Co. 2 Met. 432, 439. Without going into the vexed question as to the nature or kind of negligence or fault on the part of a master in the course of a voyage, which will absolve the underwriters, we suppose it may be stated as beyond controversy, that if a master, in the absence of fraud, through a mistaken sense of duty, deliberately does an act the necessary consequence of which he knows will be to render his vessel unseaworthy for the voyage insured, and no real necessity or valid justification is shown to exist for the act of the master, such conduct would be a breach of the implied undertaking by the assured, and would defeat any claim under the policy based on a loss happening by reason of the unseawortbiness thereby created. For example; a master could not without a valid excuse lawfully go out of the course of his voyage and change the condition of his vessel by taking passengers on board at an intermediate port in such numbers as to be clearly beyond the capacity of his vessel, and thereby render her innavigable. The unseaworthiness which such conduct would create would be a clear breach of contract; and if in such case a jettison was made in order to restore the navigability of the vessel and render her seaworthy, it would be in consequence of the fault of the master, and furnish no ground for a claim by the owners of the vessel for a general average contribution. The answer to any such claim would be, not that the jettison -was not caused by a peril of the sea, but that there had been a violation of the undertaking to preserve the seaworthiness of the vessel, to which the jettison was attributable, which defeated the right of the in sured to recover on his policy.

But, on the other hand, it is equally clear that if a vessel sailed on a voyage in a seaworthy condition for the voyage, and while in mid ocean, by the operation of circumstances which involved no fault or breach of duty by the master, she became innavigable and unseaworthy and unable to continue on her course, and her capacity for the further prosecution of the voyage could be restored only by a jettison of part of the cargo, which was made accordingly, and the voyage subsequently completed in safety, such jettison would in contemplation of law be deemed to have been caused by a" peril of the sea, and to constitute a good ground for a claim for a general average contribution. This would be so certainly, if the jettison could be properly deemed to have been made in consequence of the unseaworthy condition of the vessel, and for the purpose of restoring her to a navigable condition.

It cannot be denied that the destruction of part of the cargo in the present case was a consequence which resulted from and was occasioned, either proximately or remotely, by the act of the master in stopping to afford succor to another ship which he had overtaken on the high seas, and in receiving on board his own vessel the passengers and crew of such ship. Nor can it be doubted that these acts were rendered necessary in order to save the lives of the persons so received on board; the ship in which they were embarked being in a sinking condition, and liable at any moment to go down with all on board. Was it justifiable and lawful for the master thus to delay in the course of his voyage, and to receive into his own vessel such a number of ship ■ wrecked passengers and crew as might compel him to sacrifice a portion of his cargo ? To this question but one answer can be made consistently with the common principles of humanity, and that sacred regard for human life which ought to prevail in every civilized and Christian community. Although it is true that there was no legal obligation resting on the master to deviate from his course on seeing signals of distress from the sinking ship, and to succor her crew and passengers from the danger which was immediately impending over them, still there was resting upon him the moral obligation, to which no man whatever may be his condition and situation, ought ever to be insensible, of relieving, so far as was in his power, the distress of his fellow-men. It may not be within the province of law to enforce obligations of such nature, but the observance of them is for this reason none the less binding in foro conscientice. The question is not what shall be required and exacted of a man under such circumstances, but what is he in duty bound to do. And this, when done, the law will justify and hold valid, although it could not have compelled its performance. It certainly would be a reproach to the administration of justice, if the rules of law required us to hold that a man ought to forego the fulfilment of his moral duty in order to comply with his legal obligations, or that it is to be imputed to him as a fault that he yielded to the plainest dictates of humanity, in endeavoring to rescue his fellow-mortals from protracted suffering, and from the peril of imminent death. The rules of lawT impose no such cruel or unreasonable constraint on the conduct of the master. On the contrary, it is an established principle that he does not violate his trust or exceed his authority by using efforts to give aid and succor to those whom he may find in the course of his voyage in danger and suffering on the high seas, although by so doing he may expose his vessel and the property on board to new and additional risks and consequent loss. It is on this ground that it is held that a deviation may be justified if made for the purpose of alleviating the distress or administering to the necessities of persons lawfully on board the vessel insured, or of giving relief to strangers suffering from the disaster of a wreck of another vessel, to which the master has gone, out of the course of his voyage, for the purpose of affording succor by taking them on board his own vessel, or by other means. 1 Phil. Ins, § 1027, and cases cited.

This principle was fully recognized by this court in Perkins v. Augusta Ins. & Banking Co. 10 Gray, 312, 316, in which the vessel deviated for the purpose of procuring medical aid for a passenger, and was subsequently lost on the voyage home. As deviation in effect substitutes a new risk for that originally under taken, and involves a liability to incur any and all perils of the sea, although different from and greater than those to which the vessel and property on board would have been exposed on the voyage insured, it is obvious that these decisions recognize the right of the master to delay and go out of his course for the purposes stated, irrespectively of the perils to which the vessel and cargo may in consequence be subsequently subjected. The doctrine of these cases rests on the highest moral principle, recognizing it as an absolute and paramount duty of a master to relieve human distress and to save life, and to regard the safety of property and all pecuniary considerations as subordinate and immaterial in comparison therewith.

It would manifestly be contrary to this doctrine, or render it ineffective and nugatory in cases where its operation would be most salutary and beneficent, to hold that it did not justify a master in taking passengers into his own vessel from a sinking ship to which he had gone for the purpose of affording relief, although he might in order to do so be compelled to sacrifice a portion of the cargo. The same sense of duty which induced the master to deviate, and to go to the shipwrecked vessel, and justified him in so doing, would operate with like force and effect when he reached the wreck and received on board his own vessel the passengers and crew of the sinking ship. In view of these considerations, we can entertain no doubt that the conduct of the master of the vessel insured, so far from being censurable or unauthorized, was in accordance with the plain dictates of moral duty and humanity, and was fully justified by the circumstances. It follows, that there was no breach of duty or violation of contract.

But this conclusion is by no means decisive of the rights of the parties to this action. Indeed, the counsel for the defendants does not contend that the master of the bark was guilty of any misconduct or breach of duty in stopping to give aid to the shipwrecked vessel, or in receiving her crew and passengers on board. We have gone over this part of the case somewhat at length, lest it might be supposed that we entertained doubts concerning the rights and duties of the master in the exigency under which he acted.

But the important question still remains, whether the throwing over of cargo can be deemed to have been made under circumstances which bring the case within the principles of a general average contribution. It is insisted by the learned counsel for the defendants, and it is the main ground on which he rests his defence to this action, that this throwing over was not occasioned by a peril of the sea, but that the just inference from the facts is that it was made in order to save the lives of the crew and passengers of the shipwrecked vessel. If he is right in this position, there can be no doubt that a claim for contribution cannot be supported. This is conceded by the plaintiff’s counsel. A sacrifice of property made for the purpose of rescuing persons from shipwreck on board of another’s vessel can in no sense be regarded as made for the common benefit, in order to escape a peril of the sea impending over the subject insured. The case therefore reduces itself to the single question, what in legal contemplation was the cause of the destruction of cargo ?

It is to be borne in mind that, in cases of this nature, we are to seek for the direct, immediate and proximate cause, and are not to regard the original cause or any previous link in the chain of causes, which led to the final act. This it is not always easy to do. When events are crowded together, and one succeeds another in rapid succession, each being the effect of some cause and in its turn becoming the cause of ensuing consequences, and all leading to a particular result or act, a nice and careful discrimination may be required in order to disentangle the chain, and ascertain with accuracy the order in which the links were formed. In the case at bar, the interval between the determination of the master to succor the shipwrecked crew and passengers, and throwing over a part of the cargo, was a brief one. Causes operated and consequences followed rapidly. They were all proximate in time. The difficulty is in ascertaining the exact proximity of each in their relations of direct cause and effect. It is also to be remembered that not only must an impending peril be proved to be the cause or occasion of a loss, but that no claim for a general average contribution can be sustained unless it clearly appears that there was a voluntary and intentional sacrifice of the property lost for the purpose of escaping such peril. It must be made to appear, not merely that present safety was a consequence or result of a voluntary sacrifice, but also that to obtain such safety was the object and motive of the sacrifice. If a loss is incurred for any other purpose, it will afford no ground for a claim to a general average contribution. It is the intention to save the remaining property from a danger which is actually impending and apparently inevitable, which constitutes the very essence of the kind of loss which gives a claim on other interests exposed to hazard for contribution.

In an early case in this court, this principle was enunciated, and it was held that an essential requisite to a right to recover a contribution was, that the benefit to the property saved “ was intended as well as obtained.” Whitteridge v. Norris, 6 Mass. 125, 131. In a later case, Putnam, J., in enumerating the necessary elements of a general average loss, says, it must be proved that “the sacrifice was necessary and voluntary, and it must have been intended for the safety of all concerned.” Scudder v. Bradford, 14 Pick. 13, 15. See also 2 Arnould on Ins. (2d Amer. ed.) 883, and note, and cases cited; Abbott on Shipping, 479.

In the case of The Brig Mary, 1 Sprague’s Decis. 17, it appeared that the cargo had been landed and stored, partly in order to repair the brig, and in part because the cargo was damaged. While in store a portion of the cargo was destroyed by fire. Judge Sprague said : “ Shall this be brought into general average ? If it was landed and stored in order to repair the ship, then this new risk was incurred for the general benefit, and should be allowed.” “ But if it was landed and stored because the cargo was damaged, then the new risk was incurred only for the benefit of the cargo, and the loss is particular average. But the evidence shows that both causes concurred.” Upon this case the learned judge clearly and succinctly stated the principles on which a claim for general average rests, thus: “ Property is paid for in general average from justice and policy; it is just that he whose property has been sacrificed for the general benefit should bear no more than his proportion of the loss; it is good policy, because the owner, who may be supposed to be present personally, or by his agent, is thereby induced to make less resistance to an act which is for the common good. But this rests entirely on the supposition that there has been a voluntary and intentional sacrifice for the general benefit.” And it was held that although the repair of the ship which was necessary for the common good concurred with the damage to the cargo in causing the loss, it could not be brought into general average.

Bearing in mind these principles, and that the burden of proving a loss entitling the owners of the cargo to a contribution from the vessel rests on the plaintiff, we are to consider whether a just and reasonable inference from the facts stated establishes such a claim. We start with the admitted fact that the bark was in perfect safety, exposed to no extraordinary peril from within or without, till she began to receive the crew and passengers from the shipwrecked vessel. When then did the peril arise, and what was the nature of it ? The plaintiff insists that it was the innavigability of the bark; that this was caused by the lawful act of the master in receiving on board such a number of persons as passengers that it “ was not possible to handle the bark” while they remained on deck, and that a jettison was made for the purpose of restoring the vessel to a navigable condition. But the difficulty with this statement is, that it not only disregards the exact order of events in their relation of cause and effect as they occurred, but that it also leaves out of view the motive which prompted the master of the bark in ordering a part of the cargo to be thrown overboard. We do not doubt that it would have been impracticable to navigate the bark, if the persons could have been received on board without removing a part of the cargo. But it does not follow that this removal was made for the purpose of restoring her navigability, or that unseaworthiness arising from innavigability was a peril to escape which the sacrifice of a part of the cargo was made. On the contrary, it seems to us that the legitimate inference from the facts is, that the cargo was taken out and thrown overboard for the purpose of saving the lives of the shipwrecked passengers and crew; that this was the primary and real motive of the master in directing its destruction, and the immediate and proximate cause of the loss. We do not mean to say that no claim for contribution could be supported where property on board had been sacrificed in view of a peril which was inevitable, merely because the loss was incurred in anticipation of the actual existence of a danger which could be averted only by a voluntary destruction of property. But we do say that the sacrifice must be made with the intention and for the purpose of avoiding the impending and anticipated peril; that this must be the motive and the cause of the sacrifice; and that it is not sufficient to sustain a claim for a general average loss, that it appears that, if the property had not been destroyed for a purpose other than the general safety, it would immediately have become necessary to destroy it for the common benefit.

Upon turning to the statement of facts, it is observable that it is not stated that the motive or object of throwing over a part of the cargo was to keep the vessel in a navigable condition. If such was the fact, it was within the knowledge of the master, and it was susceptible of clear and irrefragable proof. No sacrifice of property for the common benefit could be properly made, unless the master had, in the exercise of judgment upon the facts as they existed, determined that the sacrifice was necessary for the general safety. But it is not stated that any such judgment or opinion was formed. We are left to infer it from the statement that it was not possible to handle the ship with the passengers on deck, and that there was not room for them elsewhere without removing the cargo. This statement however is to be taken in connection with other facts which tend to stiow that the preservation or restoration of the navigability of the vessel was not the immediate object of the sacrifice. It appears that as soon as the master determined to take the crew and passengers of the other vessel on board, he gave orders to his mate to clear out the oranges from between decks. It is also expressly agreed that this was done to “ make room for the passengers,” it being necessary to keep the women and children who were the first passengers received on board, upon the deck in a heavy rain, until room could be made for them below. The throwing over of the cargo was in fact begun before any persons were received on board. Certainly the vessel was not then in-navigable, nor can it be said that it was certain she would become so. The removal of the shipwrecked passengers and crew could not be accomplished in a very brief period of time. The master knew that it would necessarily occupy many hours. It was not in fact completed for upwards of seven hours. During this time, it was not impossible that some other vessel might have come to the aid of the bark in rescuing and receiving the passengers and crew, and rendered the sacrifice of a part of the cargo unnecessary. If no other facts appeared, we should entertain strong doubts whether on this statement the plaintiff has established the proposition on which his case depends, of a jettison made in view of an impending peril, and upon a judgment formed by the master that the sacrifice was necessary for the general safety.

But all doubts are set at rest by the further admitted fact, that the passengers and crew from the Gratitude could not have been taken on board the bark at all without a throwing over of the cargo. The whole number of persons received was three hundred and fifty, but only one hundred and fifty could stand on deck. There was no room therefore to receive-them, except by a destruction of the cargo which was between decks and in the hold. This was within the knowledge of the master when he determined to take them on board. How then can it be said that there was a jettison made to preserve or restore the seaworthiness of the bark 1 The unseaworthiness from innavigability did not exist, nor was it anticipated, except as a consequence or result of taking on board the passengers and crew from the wreck; but they could not be received until a part of the cargo was got rid of; as the passengers and cargo could not be on board at the same time, the alleged impending peril of innavigability from the overloading of the bark could not arise. The decision of the master which he communicated to tli3 mate of the Gratitude, and which he immediately proceeded to carry into effect, was to take all on board, and this necessarily involved the destruction of a part of the cargo, because it was impossible to execute his declared purpose while the whole of the cargo remained on board.

Some confusion in the application of legal principles to the case before us may be occasioned by putting too much stress on the fact that the mode of destruction of part of the cargo was the same as in the ordinary case of a sacrifice for the common benefit, by throwing it overboard. But suppose, when the shipwrecked vessel was overtaken by the bark, it had been found that the passengers had been previously dying from scurvy or from thirst, and it had become necessary, before removing them or while the removal was going on, to use the oranges for the purpose of relieving them from severe and possibly fatal suffering and disease. No one would contend that a destruction of the cargo for such a purpose would constitute any ground for a claim for a general average contribution. The necessary result of this view of the case is that judgment must be entered for the defendants. But there is really no distinction in principle between a case of a sacrifice of a cargo to relieve the passengers from personal suffering and death impending over them from want or disease, and one incurred to make room foi them on board the bark in order to preserve them from this suffering and impending death occasioned by their longer continuance on the wrecked vessel. In both cases, the sacrifice is made for the relief and succor of the passengers, and not to obtain present safety from a peril impending over the bark.

Under such circumstances it cannot, in the opinion of a majority of the court, be said that the immediate cause of the destruction of cargo was the innavigability of the vessel, or that it was made by the master with a design to avert this peril. If the goods thrown overboard must have been sacrificed, as the facts show, for the purpose of receiving the shipwrecked persons on board, their destruction was inevitable irrespectively of the innavigability of the vessel. This peril therefore was not the danse of the loss in a legal sense, nor was this common safety the purpose for which the sacrifice of the cargo was made.