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MCANDREWS V. THATCHER, 70 U. S. 347 (1865)

U.S. Supreme Court

McAndrews v. Thatcher, 70 U.S. 3 Wall. 347 347 (1865)

McAndrews v. Thatcher

70 U.S. (3 Wall.) 347


The liability of a cargo to contribute, in general average, in favor of the ship does not continue after the cargo has been completely separated from the vessel, so as to leave no community of interest remaining.

This principle illustrated in the following case:

A ship was stranded near her port of destination, and the underwriters upon her cargo sent an agent to assist the master in getting her off. The master and agent made all proper efforts to do this for two days, when not succeeding at all, and the water increasing in the vessel, they began to discharge the cargo in lighters, still making efforts to save the ship. This discharge of the cargo occupied four days, by which time the whole of it was taken off, and, with the exception of a very small fraction in the lower hold and not discovered, taken to the ship's agents, who subsequently delivered it to its consignees, they giving the usual

Page 70 U. S. 348

average bond. By the time that the cargo was thus all got off, the vessel, not assisted by being lightened, was settling in the sand, with the tide ebbing and flowing through her as she lay. The agent considering her case hopeless, and the consignees of the ship having refused to authorize him to incur any further expense, now went away.

On the next morning, and while the master was yet aboard, the underwriters on the vessel sent their agent, who got to work to float the vessel. Soon after the new agent came, the crew refused to do duty. The agent got new bands, and the crew went away. They were soon followed by the master, he leaving the vessel after the new agent had been in charge of her for four days. After six weeks' labor, and an expenditure of money somewhat exceeding her value when saved, the new agent succeeded in floating and rescuing the ship. The remnants of the cargo, in a damaged state, were delivered to its consignees.

On a suit by the owners of the ship against the consignees of the cargo for contribution in general average for the expenses incurred after the master went away, held that the case was not one for contribution; there having been, as the court considered, no community of interest remaining between the ship and cargo after the master, in the circumstances of the case, had left the ship.

The ship Rachel, owned by Thatcher and others, of Boston, sailed from Liverpool for New York in July, 1859, with a cargo consisting, among other things, of four hundred and four boxes of licorice paste consigned to McAndrews in New York. The vessel, with her cargo, arrived in safety inside of Sandy Hook on the 21st of September, but in coming up the bay, struck in a gale on the west bank in the lower harbor and became fast.

Regarding the ship and cargo as in peril, the master accepted the services of a steamer which that same day came alongside to get her off. This steamer passed her hawser board and made fast, but, finding that her power was not sufficient to accomplish the object, she set a signal for another steam tug. Another immediately came to her aid. The power of both combined was tried, but they could not start the ship from the place where she lay imbedded in the sand. These steamers continued their efforts for several hours. During this time, a third steamer came alongside and made fast to the ship; but in her endeavor to start it parted her hawser, and all came to the conclusion that then efforts were fruitless.

Page 70 U. S. 349

The master, at six o'clock the same afternoon, left the ship and went to the port for advice and assistance, but the mate and mariners remained on board. At four o'clock on the following morning, it appeared that there was fourteen and a half feet of water in the ship, and that this was fast increasing. The cargo was insured in New York and the ship in Boston. The underwriters of the cargo, with the knowledge and consent of the consignees of the ship, during the forenoon of the second day after the disaster, sent a steamer and their agent, a certain Captain Merrit, to the ship, for the purpose of saving, if possible, both it and the cargo. The steamer had a schooner in tow, and every necessary appliance -- such as steam pumps and wrecking apparatus -- to rescue the ship, or, if necessary, to discharge the cargo. These continued their efforts, under the direction of the master, who had returned to his ship, for two days, but, finding that they were unable to get the ship off, they got to work to discharge the cargo into lighters, and transport it to its place of destination. The discharge of the cargo occupied four days, i.e. till the 26th of September, during which time three hundred and ninety-one boxes of the licorice paste were taken off.

The cargo so discharged and transported was placed in the custody of the agents of the ship, who, upon receiving the usual average bond, delivered the same to the consignees. Efforts to get the ship off were continued by these parties until the said twenty-sixth of September, when the steam pumps were taken down and carried away, having finished discharging the cargo. Before the agent left the vessel finally he went to New York and consulted with the consignees of the ship. These refused to authorize him to incur any further expense; the ship at that time, as positive testimony declared, having been settling in the sand, with the tide ebbing and flowing in her as she lay.

Intelligence of the disasters having reached the underwriters of the ship, they sent their agent, one Captain Morris, to the vessel. He went on board at one o'clock the next morning, after the other agent went away, and took charge

Page 70 U. S. 350

of her; but the crew soon afterwards came aft and refused to do duty. Deprived of their services, he went immediately to New York and employed other men to supply their places, and the crew left the ship. The next two days were spent in procuring oil casks, and in attempts to buoy the ship by their use, but without any beneficial result, except to save some of the materials of the vessel. It was found, on the next morning (that of the 30th), after a storm, that the ship, at her hatches, had eighteen feet of water, and as the sea was breaking over her, and she was apparently going to pieces, her main topmast was, by order of Morris, cut away.

The master, unable to do more than he had done, now abandoned the ship, and left her where she lay, in charge of Morris, the agent of her underwriters. Not discouraged by her condition, Morris continued his endeavors until the 11th of November following, and on that day, by the assistance of two steamers, succeeded in getting her free, and towed her up to the Marine Railway, at Hunter's Point, for repairs. The value of the ship as saved was somewhat less than the expense of getting her off after Morris came on board. Examination made at the Marine Railway showed that there were remnants of the cargo, in a damaged state, [Footnote 1] including eleven boxes of the licorice paste, not till then discovered, on board. These were discharged and delivered to the consignees. [Footnote 2]

The shipowners sued the consignees of the licorice paste in the District Court for the Southern District of New York, for $3,363.89, adjusted as in the note for their ratable proportion

Page 70 U. S. 351

of the expenses incurred in saving the ship after Morris came on board. The court below was of opinion that the claim was well founded in law, and charged accordingly.

Its opinion expresses so well one view which may be taken of the case that the reader will gain by having it entire:

"This is, perhaps, a close case, but we are inclined to think that, on principle, the cargo of the defendants is bound to contribute in general average to the expenses of saving the vessel. The fact that the vessel stranded near the port of destination has somewhat embarrassed the case, taken in connection with the circumstances attending the delivery of the cargo by lighters. It is open to the observation that the cargo was not only separated from the vessel and the common impending peril, before most of the expenses in relieving the latter were incurred, but that the separation took place at the instance and expense of the consignees of the cargo. This view, however, to the extent stated, is not sustained by the evidence. The cargo was discharged into the lighters to relieve the vessel, and the delivery then at the port of destination is attributable to the accident of the proximity of the port. The cargo was at the risk and responsibility of the ship until delivered by her consignees on receiving bound for average contribution."

"It is true, in a literal sense, that after the discharge of the cargo upon the lighters, and separation from the ship, the safety of the cargo no longer depended upon the saving of the vessel, and hence that there was no longer any common peril impending or benefit derived from the expenses incurred. But is this true in a more general view of the facts of the case, or in contemplation of law? By the accident which occasioned the stranding of the vessel, both the vessel and cargo were exposed to one common danger, and the expenses incurred were incurred with a view to the safety of both, and of course for their common benefit. Steam tugs were employed, and efforts made to start the vessel from her sand bed -- steam pumps and wrecking apparatus used. These efforts failing, then commenced sending down yards and spars, and placing cargo into lighters. All these were expenses incurred, and efforts made by the master, who represented the interests of all concerned. These efforts were

Page 70 U. S. 352

continued by the master until and after he was joined by Captain Morris, the agent sent by the underwriters of the ship, who then took charge of the business."

"The question, under these circumstances, is this -- was the cargo exempt from all expenses incurred in relieving the ship after it was placed in safety upon the lighters? We agree that, if the consignees of the cargo had accepted it thus delivered, at the sides of the stranded ship, the separation would have been complete, and it would have been no longer connected with the danger or its incidents. But this cannot be pretended. The cargo continued as a part of the adventure not yet terminated. It cannot be doubted but if any damage had happened to it in the transfer to the lighters, or in the conveyance to the port, the loss would have been the subject of general average, and the ship liable for its share. And in this sense the cargo is still interested in the safety of the ship. It is said the consignees of the cargo do not claim any average contribution. But their release or waiver cannot affect the question. The test is is the vessel legally liable?"

"There is certainly a difficulty in laying down any general rule by which to determine the measure of expense the master or owner, in case of a vessel stranded by a peril of the sea, may incur, and to which the cargo saved must contribute. That expenses may be incurred, indeed that it is oftentimes the duty of the masters or owner to incur them, is not to be denied. We do not see but the measure of them must depend upon the exercise of sound judgment and good faith, under all the circumstances of the case. No fixed amount can be settled in advance. There may be abuses, as in every case where the rule of liability turns upon the exercise of the human judgment in the given case. The only remedy we know of consists in the supervision of the courts. We cannot say, in this case, that the owner should have ceased his efforts when the cargo was saved, or that he forfeited his right to the contribution by the continuance of them."

The jury having found in favor of the plaintiff for the $3,363.89 claimed, and judgment having gone accordingly, the case was now here on exceptions and error.

Page 70 U. S. 364

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