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have on a former occasion declared that I did not consider the right to recover a general average contribution arises from a contract, (Sturgis v. Cary, 2 Curt. C. C. 384,) but from a principle of natural justice, that they who have received a common benefit from a sacrifice voluntarily made by one engaged in a common adventure, should unite to make good the loss which that sacrifice occasioned. But I have never entertained a doubt that, from the relation of the parties to a common adventure, the law would imply a contract for the purpose of a remedy. Nor did I then suppose that it would be implied between strangers, who were not united in a common adventure by one or more contracts of affreightment.

"The ancient as well as the modern code of sea laws proceeds upon the assumption that the master, representing all the aggregate interests by holding the office, has the rightful power to judge upon the sacrifice of one of the interests which he thus represented for the benefit of the others. But they afford no ground for the position that he may judge for mere strangers, whose property has not been confided to his care. In my opinion the only subjects bound to make contribution are those which are united together in a common adventure, and placed under the charge of the master of the vessel, with the authority to act in emergencies as the agent of all concerned, and which are relieved from a common peril by a voluntary sacrifice made of one of those subjects. Consequently, I must reject the claim for general average."

The decree of the district court was therefore reversed, but it was further stated in the opinion that the questions were so novel, and attended with so much difficulty, and the equitable considerations in favor of some of the claims were such, that it was not thought fit to charge the appellees with costs.

But the elements wanting to constitute a valid claim for a contribution in general average in the case of The John Perkins, seem to be present in the case of this appeal. Here the propeller and the barges were not strangers. They were bound together by the contract of towage. They were interested together in a common adventure. They were engaged to and with each other for the entire voyage, and each interested in its successful issue, as the freight earned by each barge was to be shared between it and the propeller as a compensation for its service. The barges were dependent altogether upon the propeller for motive power, neither of them having any means of selfpropulsion. They were powerless for any purposes of navigation, and could only by means of a single sail, ground tackle, and steering apparatus, co-operate with the propeller in its control over them. Each barge, indeed, had its own master and crew, but they had no voice in the management of the propeller, nor in the conduct of their own craft, except in obedience to signals from the propeller. The master of the propeller had charge of the navigation of the whole tow for the voyage, and for the purposes of that navigation and to meet its exigencies was invested with authority to act for all. No ingredient required by the rule to constitute a case for contribution in general average seems to be lacking. There is a common adventure, in which distinct interests are associated by a maritime contract, by which the whole is placed in charge of a common agent authorized

to act for all in its prosecution; and, by his authority, a sacrifice is made of part, in the presence of imminent peril, threatening the loss of all, which results in the safety of the remainder.

What is there in the circumstances and nature of the case to prevent the application of the law of general average? It is suggested that the obligation to make contribution in such a case is inconsistent with the contract of towage, which alone established the relation between the parties, and must regulate their relation, rights, and duties. The contract of towage undoubtedly does not embrace any stipulation which requires such a contribution. The towing vessel is not subject to liabilities as extensive as those of a common carrier of goods. It discharges its whole duty by the performance of the stipulated service with ordinary care and skill. It insures nothing. And it is excused from the further performance of its contract when that becomes inconsistent with its own safety. All that is certainly true. It was no breach of its contract, as has already been admitted in this cause, for the propeller, under the circumstances of necessity into which, with its tow, it was driven, without its fault, to save itself at the expense of the barges, which were cut loose and cast away upon the rocks and beach. But the case is precisely the same when jettison is made of a part or the whole of the cargo. The sacrifice is not a breach of the contract of the common carrier, but puts an end to it, and is justified by the law, notwithstanding the obligation of the contract of carriage. But the contribution is not the less on that account exacted upon principles of equity. In neither case does the duty to equalize the loss grow out of the contract. In both, it grows out of the relation established by the contract; and that relation, so far as that duty is concerned, is in substance the same in both cases. Whether the facts necessary in law to bring the case within the rule, as stated, would exist in every case of towage, or in those cases where the towage is of the more usual kind, it is not necessary to consider or decide. The judicial result in the present case is predicated as flowing from the relation of the parties, as founded upon their actual agreement, and the particular circumstances which arose in the course of its execution. The relation between the parties to a contract of towage will vary according to the terms of the contract, and the liability of each party to the other, as well as to third persons, may be very different in different cases. In a case of collision (Sturges v. Boyer, 24 How. 110, 122) it was said by the supreme court that

"Whenever the tug, under the charge of her own master and crew, and in the usual and ordinary course of such an employment, undertakes to transport another vessel, which, for the time being, has neither her master nor crew on board, from one point to another, over waters where such accessory motive power is necessary, or usually employed, she must be held responsible for the proper navigation of both vessels; and third persons suffering damage through the fault of those in charge of the vessels, must, under such circumstances, look to the tug, her master or owners, for the recompense which

they are entitled to claim for any injuries that vessels or cargo may receive by such means. Assuming that the tug is a suitable vessel, properly manned and equipped for the undertaking, so that no degree of negligence can attach to the owners of the tow on the ground that the motive power employed by them was in an unseaworthy condition, and the tow, under the circumstances supposed, is no more responsible for the consequences of a collision than so much freight; and it is not perceived that it can make any difference in that behalf that a part or even the whole of the officers and crew of the tow are on board, provided it clearly appears that the tug was a seaworthy vessel, properly manned and equipped for the enterprise, and, from the nature of the undertaking and the usual course of conducting it, the master and crew of the tow were not expected to participate in the navigation of the vessel, and were not guilty of any negligence or omission of duty by refraining from such participation."

In like manner, in such a case, the master of the towing vessel commands and directs, not only his own but the vessels in tow, as though all together constituted but one ship; the tow is intrusted to his care, bound to obey his commands and directions, and subject to his power as though it was mere freight. I am unable to perceive why, in such a case, of which the present is an instance, the law of general average should not and does not apply. The novelty of its application in such circumstances is the strongest ground for rejecting it; but, where the principle plainly includes it, that argument ought not to prevail. The history of the development of the maritime and admiralty jurisdiction in this country is not without the occasional surprise of new discoveries. It was a long time, indeed, before the professional mind of the country accepted the idea that the great rivers and lakes, however navigated in fact, were legally navigable where the tide did not ebb and flow; and the doctrine of Dupont v. Vance, 19 How. 162, by which a maritime lien enforceable in admiralty was recognized in favor of a claim for general average, by reason of jettison of cargo, was thought to be an innovation upon the English rule, which confined the remedy to an action of assumpsit in the courts of common law, or by bill in equity in the court of chancery.

Contracts of towage, like that in the present case, are exceptional, and of comparatively recent origin, peculiar, perhaps, to lake and river navigation. They certainly differ very essentially from the ordinary and usual towing contracts for towing vessels into and out of port, or for short distances in narrow and tortuous channels. It was in reference to one of such that Sir ROBERT PHILLIMORE spoke in The I. C. Potter, L. R. 3 Adm. & Ecc. 292, where the service to be rendered was defined and limited and for a customary fixed price, and where it was held that, even without formally abandoning the contract, the towing vessel-circumstances of serious danger having su pervened, not in contemplation of the parties to the contract-was entitled to salvage reward for bringing her tow safely into port, on the ground that she would have been justified in deserting her. The circumstances of the present case preclude the application of any such principle; for, in regard to craft, such as the barges which constituted

the tow, it cannot be supposed that it was contemplated by the parties that in any emergency they could take care of themselves. The contract in the present case was for the whole voyage, in view of all its perils and contingencies, and completely identified the propeller with her tow for all the purposes of the enterprise, the success of which the towing vessel itself, as well as the tow, had mutually agreed to share as the sole price to each for their respective contributions to the common interest. The case is more like that of two carriers who combine in a joint service; as, where on land, one furnishes motive power and an artificial highway, as a railroad, charging toll to the other for the vehicle and its contents, being the goods to be carried; or, as in the case of New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344, where a steam-boat carried goods for an expressman. At any rate, without undertaking to specify in what manner and in what degree the rights and liabilities of the parties are extended beyond those growing out of the more limited and ordinary contract for a mere towage service by such a contract as that now under consideration, it is sufficient in this case to say that it had the effect to establish such a mutuality of interest in the enterprise as to constitute the towing vessel and her barges in tow a unit for the purposes of the voyage, so far that a voluntary sacrifice by the master in authority over all of a part for the benefit of the remainder thereby saved from destruction by a peril of navigation must be compensated upon the principle of general average.

The decree of the district court is therefore reversed, and a decree. will be rendered in favor of the appellants, respectively, in conformity with this opinion; the amount in favor of each to be ascertained by an intermediate reference to a master to state and adjust the proportionate contribution to be recovered against the propeller, upon the principles of a general average, with costs.

HAWGOOD and others v. ONE THOUSAND THREE HUNDRED AND TEN TONS OF COAL.

(District Court, E. D. Wisconsin. June 14, 1884.

DEMURRAGE-LIEN-BILL OF LADING.

A ship-owner has a lien upon the cargo for demurrage, enforceable in the admiralty, although the bill of lading contains no demurrage clause.

In Admiralty.

Markham & Noyes, for libelants.

Theodore G. Case, for claimant.

DYER, J. On the seventeenth day of August, 1882, R. R. Hefford, as agent for Pratt, Parker & Co., shipped on board the following

named vessels, at Buffalo, certain cargoes of coal, all consigned to A. Pugh & Co., care of Green Bay, Winona & St. Paul Railroad Company, at Green Bay, Wisconsin, namely: On board the steamer Belle Cross,-which was a steam-barge engaged in towing other vessels and carrying cargoes upon the lakes,-317 net tons of Blossburgh coal; on board the sailing barge Chicago Board of Trade, 693 gross tons of chestnut coal; on board the sailing barge George H. Wand, 638 gross tons of stove coal; on board the sailing barge Little Jake, 654 net tons of stove coal; and on board the sailing barge S. Clement, 783 net tons of stove coal; of all which vessels the libelants were the owners. Freight was to be paid at the rates of 85 cents per ton for the cargo of chestnut coal, and 90 cents per ton for all the other cargoes. The bills of lading provided that the consignee was to discharge cargoes without expense to the masters of the vessels, who were to collect the freight, but they contained no stipulation as to the time within which the cargoes were to be unloaded at their destination, nor as to the payment of demurrage in case of detentions in unloading. The vessels, sailing as a fleet, left Buffalo with their cargoes about August 17th, and arrived at Green Bay on the twenty-eighth of that month. They were there detained, in part, because of the previous arrival of other vessels awaiting discharge of cargoes, but principally for want of facilities for unloading, until the fifth of September, when the last of the fleet was unloaded. The entire cargoes were placed upon the docks of the railroad company, but a portion of the coal was unloaded under an assertion of a lien for demurrage, and a special custodian thereof was placed in charge by one of the libelants, and continued in charge until the coal was seized by the marshal upon monition issued in the present suit. The libelants' right to recover is contested upon every ground of defense set up in the answer, but the only question that will be considered in this opinion is that of the right of the libelants to maintain this suit in rem upon their claim for demurrage. The contention of counsel for the claimant is that in the absence of any stipulation in the bills of lading limiting the time within which the cargoes should be unloaded, or providing for the payment of demurrage in case of unreasonable detention, the libelants can assert no lien upon the cargo for loss or damage occasioned by such detention; and therefore that in such case a suit in rem is not maintainable in admiralty, but that the remedy of the owners of the vessels, if any, is one exclusively in personam against the consignee of the cargoes. From quite an early period there has been a good deal of controversy in the common-law courts, and later in some of the admiralty courts, upon the subject of the rights of shipowners and other carriers with reference to claims for demurrage. The question seems to have most frequently come up in suits between ship-owner and consignee, and hence direct authority is not abundant upon the precise point here in judgment.

Two English cases (Phillips v. Rodie, 15 East, 547, and Birley v.

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