Dabney v. New England Mutual Marine Insurance

Foster, J.,

dissenting. I find myself unable to concur with the majority of the court, and this seems to be a cause in which I ought to state briefly the reasons of my dissent.

On the afternoon of January 1st 1866, the bark Fredonia was summoned by a signal of distress from the ship Gratitude. The two vessels kept near each other until daylight of the 3d, when the mate of the Gratitude came on board the Fredonia, represented to her master that the ship was in a sinking condition, and requested him to take off the women and children. This application was declined, and the mate returned to bis own vessel, but soon came back with some of the crew and passengers, who implored the master of the Fredonia to receive the ship’s company of the disabled vessel in order to save their lives, as their strength was worn out with pumping, the forward pumps had given out, and the ship must go to the bottom. Thereupon the master of the Fredonia decided and promised to take them on board. Having formed this resolution, he ordered the boxes of oranges between decks to be thrown overboard in order to make more room for the passengers and crew of the Gratitude, whose numbers were so great that the Fredonia could not otherwise have been navigated after they were received. The jettison began before the first passengers arrived, but it was continued afterwards, and their reception and the lightening of the Fredonia proceeded simultaneously. I do not understand it to be the fair construction of the agreed facts that it was physically impossible to take all the persons from the Gratitude on board the Fredonia without throwing over a part of its cargo, but only that they could not be sheltered and provided for, and must have remained exposed to the storm until the space between decks was cleared for their accommodation. But in my view of the subject this question is immaterial.

Under these circumstances, the defendants contend that the cargo was thrown overboard merely to save the lives of persons on board another vessel, while the plaintiff claims that the proximate cause of the jettison of the cargo was the innavigability of the Fredonia caused bv the great number of persons whom her master had rightfully agreed to receive, and who were actually coming on board at the time the sacrifice was made.

*316He was certainly under a paramount moral obligation to take on board the passengers and crew of the Gratitude, whose lives would otherwise have been lost. The promptings of nature and the precepts of Christianity alike ordain it as a sacred duty to succor those who are ready to perish. He had also the legal right to perform this act of humanity. The law on this subject is not so at variance with the principles of justice on which all law is founded as to subject the master to a legal liability for the discharge of a moral duty, the neglect of which would have made him infamous among mankind. This legal right necessarily involved the further incidental right to guard against the consequent innavigability of his own vessel, which was sure to be thereby occasioned. A jettison may always be made in view of an impending peril, without waiting for its actual occurrence, which often would be too late. And, when made under such circumstances, it is the subject of a general average contribution. There is no occasion to enlarge upon these familiar principles, or-to enforce them by authority. They are fully and explicitly recognized in the opinion of the majority of the court. The moral and legal rightfulness of the master’s acts is conceded. The difference of opinion is, whether they constitute a valid claim of general average, and thus establish the liability of the insurers.

No adjudged case can be found, the facts of which resemble those of the present, or in which the reasoning of the court sheds light upon the precise question now under debate. The Brig Mary, 1 Sprague’s Decis. 17, has been referred to. So much of that case as relates to general average may be stated in a few words, and in the very language of the opinion. “ The report of the surveyors ordered the cargo to be landed in order to examine the ship, and it was so much damaged that it could not have remained on board.....In the case before us, the cargo was so damaged as to render its removal from the vessel indispensable. The owner had no option. I cannot therefore consider him as having made a voluntary sacrifice for the pur pose of prosecuting the voyage.” I discover nothing in this case ol the least value to the present discussion. We must therefore *317resort to the general principles of this branch of maritime law, which is founded as well upon considerations of natural justice and of commercial policy as upon the usages of merchants, and ought surely to be applied to new cases in a liberal and enlightened spirit.

It is not denied that, if the passengers and crew of the Gratitude had been actually received by the Fredonia, and immediately afterwards its innavigability had been ascertained and the jettison thereupon ordered, there would have been a plain case of general average contribution, however brief the interval between the two events. Accordingly, as I understand the principles adopted by the majority of the court, their decision of the present case would be reversed, if the ship’s company had landed one at a time upon the deck of the bark, and, directly after each came on board, so many boxes of oranges had been thrown over as would make room for his accommodation. But this refinement seems to me too subtle for the wise, practical administration of maritime law. To my mind there is no material distinction between a jettison resolved upon after the master of the Fredonia had rightfully decided and promised to fulfil the duty of rescuing the shipwrecked strangers, and one found to be essential to the common safety the moment after they came on board. When the moral necessity of taking them off the Gratitude had been demonstrated, the promise to do so had been given; and while the transfer was taking place, the ship’s company of the Gratitude are in my opinion to be regarded as belonging to the Fredonia as much as after they had reached its deck. If a portion of its own crew and passengers had temporarily left that vessel, and it was found that they could not safely be taken back without a jettison, no one would suppose that it failed to be a subject of general average, merely because the throwing overboard of the cargo preceded their return. And I cannot distinguish in principle such a case from the present. The master had a right to consider what would be necessary for the general safety, when all were on board whom he had the moral and legal right, and bad promised, to receive. Under such circumstances, the proximate c»use of the jettison seems to me to have been the *318innavigability of the Fredonia, produced by the great number of new passengers whom its master had rightfully engaged to receive, and who were actually arriving on board. A peril of the sea was thus incurred in the fulfilment of the duty of saving fife, and in consequence of that peril the jettison was made. No doubt the general safety must have béen and was the object of the sacrifice. The precise question is, the general safety of whom ? I differ from my brethren in thinking that, upon the facts of this case, the common safety included the human beings who were coming from the Gratitude, as well as the original ship’s company of the Fredonia.

If this view be correct, the jettison was immediately produced by a peril of the sea, within the most stringent application of the maxim which pervades the whole law of marine insurance, that the proximate cause of a loss is alone to be regarded.

But there are some general considerations not to be lost sight of. It is admitted that the owners of the portion of the cargo destroyed have no legal cause of complaint; and that the master’s act was justifiable as against them on the ground of necessity. And I feel it to be impolitic, unjust, and contrary to the general interests of commerce, to lay down a rule by which, under such circumstances, it depends on the arbitrary or accidental selection of the master, whose goods shall be sacrificed and whose shall be saved, without any contribution.' The danger and injustice of intrusting such a power to the common agent is one of the reasons on which the doctrine of general average is founded, and it seems to me to apply to the present case as forcibly as to any other.

Furthermore, it is well established that a deviation to save life or succor the distressed does not vitiate a marine insurance, although a deviation to save property on board another vessel always avoids the policy. The doubt on this subject which Mr. Arnould (1 Arnould on Ins. 410) pronounces to have been dishonorable to the jurisprudence of Christian communities ” no longer exists. In regard to it Chief Justice Marshall observes, in Mason v. The Blaireau, 2 Cranch, 257, note, that “ if stopping to relieve a vessel in distress would discharge the underwriters *319no master would be justified in using an exertion to save a vessel in the most imminent danger of perishing.” It was the opinion of that great magistrate that no moral duty to strangers would warrant a shipmaster in exposing his vessel and cargo to a loss not covered by the policy. But his reasoning and conclusion was, that, because the act of deviation to save life is a paramount moral duty which the master is required by the law of God to perform, therefore the dangers incurred in doing so are to be deemed perils of the sea for which underwriters are liable. This doctrine recognizes the constraining moral necessity of such an act for such a purpose; and considers a peril of the sea met with in its performance as not voluntarily but inevitably incurred. The shipmaster who meets danger or disaster in a rational attempt to rescue shipwrecked fellow beings is driven into it by a force as irresistible to a brave man as that of the winds or the waves. The justification of this rule is said to rest npon the plainest principles of humanity. But a deviation changes the whole character of the risk, and may expose the vessel to every possible peril of the seas. It may render a jettison necessary, and if the deviation is excused so also must be the consequent sacrifice of the cargo. Every consideration which allows a master to turn aside from the course of his voyage to save life would justify a jettison for the same purpose. The same objections may be and have been urged against the liability of the underwriters in that case as in the present. It seems to me that the rule as to deviation commends itself alike to the heart and the head ; and that we ought to apply the principles established in that case to a jettison made in obedience to one of the most imperative duties which man can be called upon to perform towards his fellow man.

The language of this court as to the effect of a deviation on the liability of insurers exactly expresses my sentiments in the present case. “ It makes no difference whether the object of such departure is to alleviate the distress and administer to the necessities of persons who are lawfully on board, or of strangers suffering from disasters sustained by the loss or wreck of another vessel. The dictates of humanity are as forcible in the one case *320as in the other, and it would be strange and unreasonable if the law recognized any discrimination between them.” Perkins v Augusta Ins. & Banking Co. 10 Gray, 316.

I am authorized to say that Mr. Justice Chapman fully concurs in this dissenting opinion.

Judgment for the defendants.