US SUPREME COURT DECISIONS

The scuttling of a ship by the municipal authorities of a port, without the direction of her master or other commanding officer, to extinguish a fire in her hold is not a general average loss.

If the cargo in the hold of a ship moored in a port takes fire, and the port authorities come on board with fire engines, take charge of her, pump steam and water into the hold, and move her and put her aground, without any objection by the master, and the master successfully removes part of the cargo, and desires, and believes it to be prudent and feasible, to remove more, but the port authorities forbid and prevent his doing so, because of the danger of increasing the fire, and themselves extinguish chanrobles.com-red

Page 157 U. S. 387

the fire by scuttling the ship, whereby she becomes a wreck, not worth repairing; the loss of the ship is not a subject of contribution in general average against the owners of the cargo, although the court is of opinion that the measures taken by the port authorities were the best available to save the cargo from greater loss.

This was a libel in admiralty, filed May 16, 1889, in the District Court of the United States for the Southern District of New York, by the charterers against the owners of the British bark J. W. Parker, of St. John, N.B., alleging that pursuant to a charter party dated October 25, 1885, the libelants, on February 16, 1886, loaded on the bark in the port of Calcutta, to be carried to the port of New York at a certain rate of freight, a full cargo, consisting, among other things, of 7,592 bales of jute butts, and received from her master bills of lading therefor, agreeing to transport the jute to the port of Boston; that on the same day,

"fire broke out, and said bark was thereby so badly damaged as to become unseaworthy, and her said voyage was thereupon broken up and abandoned by the respondents;"

that afterwards 552 bales of the jute were delivered to the libelants at Boston from a steamship; that the respondents failed and neglected to deliver the remaining bales, and by their agent, the master of the vessel, sold and delivered them at Calcutta, and received and held the proceeds of the sale, and, refused, on demand, to pay them to the libelants, whereby the libelants were damaged to the amount of $22,000, the value of the undelivered jute.

The respondents, in their answer, claimed a contribution in general average. Admitting that the master sold the jute, and that they received and held the proceeds, they alleged the following facts:

"In accordance with the terms and provisions of the charter party, a cargo of jute had been laden on said bark at Calcutta, and on February 18, 1886, said vessel was ready for sea. Flames broke out in the hold of said bark about 10 a.m., from causes unknown, but presumably from spontaneous combustion of the jute in the bales, and said bark and cargo were in great danger of destruction and of becoming a total loss. Immediately upon discovery of the fire, the

Page 157 U. S. 388

officer in charge of the J. W. Parker sent for the crews of the neighboring vessels to assist, and under his supervision and direction a quantity of water was poured down the forward ventilator and fore hatchway, after which those openings were tightly covered with a sail, and all ventilators closed. Later the engines of the port came to assist, and their hose, charged with fire-extinguishing chemicals, were let into the hold through holes cut in the deck. Other sacrifices and measures were taken against the common danger, which resulted in saving 552 bales of jute uninjured, although the residue of said cargo was so much damaged that the same was condemned and sold. The 552 bales aforesaid were forwarded by steamer to Boston, and there delivered to the libelants."

The respondents further alleged that they executed an average bond; that an adjustment of general average was made, which showed that the proceeds of the sale of cargo at Calcutta amounted to $20,752.83, and that the balance due to the owners of cargo was $7,420.48, which they were ready to pay to the libelants, and had deposited in the registry, and denied any other liability to the libelants.

The district court held that the respondents were entitled to a general average, and confirmed the adjustment, and entered a decree in favor of the libelants for said sum of $7,420.48, and interest, for the reasons stated in its opinion in 37 F.8d 8.

The libelants appealed to the circuit court, which made the following findings of facts:

"1. Libelants, who constituted the firm of Ralli Brothers, of New York and Calcutta, on October 25, 1885, chartered the British bark J. W. Parker to load jute and saltpeter for a voyage from Calcutta to New York."

"2. The vessel accordingly proceeded to Calcutta, and, while moored in the river there, was fully laden by libelants with 7,592 bales of jute butts and 1,062 bags of saltpeter, for which the master signed the usual bills of lading, undertaking to deliver said cargo at Boston."

"3. On the morning of February 18, 1886, a port pilot came on board, and took charge of unmooring, preparatory to

Page 157 U. S. 389

taking the bark to sea. All the hatches had been tightly covered the night before. As the anchor chain was hove in, it was necessary for a man to go into the chain locker forward to stow the chain. To reach the locker, the fore hatch had to be opened. Thence one could go through a narrow passage, about three feet wide and three feet high, between the jute bales, to the chain locker, which was about eight feet forward of the hatch. Ernest Edwards, an able seaman, who had been several months on the bark, took a globe lantern, which did not have a lock, but in which the lamp was screwed into the body of the lantern, and, by the mate's orders, went through the fore hatch into the chain locker to stow the chain. This was between 9 and 10 o'clock a.m. A few minutes afterwards, he was heard to scream. At the same time, smoke was seen coming out of the ventilators. The men who tried to rescue him were driven back by the smoke in the fore hatch. Edwards was suffocated. His body was afterwards found in the chain locker."

"4. Thereupon the second officer of the bark caused an alarm to be sounded by ringing the vessel's bell, and from sixty to seventy men from the crews of the neighboring vessels came to his assistance. These men brought buckets with them. Water was poured from the buckets into the forehold. A force pump on the bark, and another force pump brought from a ship nearby, were both playing large streams of water down the hold. After half an hour of this work, the hatches were covered with wet sails and tarpaulins, but the pumps were kept playing into the chain lockers."

"5. Between 11 and 12 o'clock, and while both force pumps were still being steadily worked, the port authorities came with fire engines, and took direction of the vessel, and on the return on board of the master he found the port authorities in charge. The port fire engines, charged with fire-extinguishing chemicals, were placed through holes cut in the deck. During the night, the fire engines continued pumping in steam, and in the morning the fore hatchway was opened, and six hose were played on the fire in the fore hold, but, as this seemed to increase the fire, the hatches were put on

Page 157 U. S. 390

again. The port authorities then moved the ship, and put her aground. In the forenoon, the captain removed 552 bales of jute from the bark, and desired to remove more, but the port authorities objected, and forbade it because of the danger of increasing the fire. During that day, the port authorities pumped water into the ship, and during the night and following morning the fire was extinguished by the vessel's being scuttled. The master believed that it was prudent and feasible to discharge more cargo at the time he was prevented from doing so by the authorities. The measures taken by the mate before the port authorities took charge of the ship, and those subsequently taken by the port authorities, were the best available to extinguish the fire, and save greater loss upon the cargo."

"6. The fire was communicated to the said cargo by the lamp carried by the seaman Edwards while on his errand to the chain locker; but whether the occurrence happened by the accidental breaking of the glass of the lantern, or whether by his act in removing the lamp from the lantern, or whether by the lamp becoming unscrewed, or how the occurrence took place cannot be ascertained. Jute or jute butts in bales is very inflammable cargo, and a lamp or lantern in which the flame is exposed cannot safely or prudently be carried through such a narrow passage as Edwards had to pass. At the time, there was in force a regulation of the port of Calcutta, which had been duly promulgated by the proper authorities, as follows:"

" Rule 30. No person shall smoke, or use naked lights of any description, in the hold or between decks of any vessel lying in the port. Closed lanterns, secured by a lock and key, and in charge of an officer of the vessel, shall alone be taken between decks and into the hold."

"Neither the master nor the officers of the bark had any notice of this regulation."

"7. The jute had been packed in the bark's hold as closely as the compressed bales could be forced together by screws. The effect of the water poured on the jute was to expand it, and spring up the decks, break the hatch coamings, and draw out the timbers. The raising of the decks and starting of the beams were observed early in the morning of the day after the

Page 157 U. S. 391

fire. The swelling continued even after a portion of the cargo was removed. The J. W. Parker became a wreck, not worth repairing."

"8. The master, when the port authorities allowed him to resume charge of the vessel, acting for the best interests of all concerned, proceeded to save the residue of the cargo that remained in the vessel. By the outlay of about $8,000 for men and lighters to get the damaged jute out of the bark, and for repacking it in condition for sale, he was able to land the same in godowns or warehouses. He consulted the firm of Turner, Morrison & Co., who were agents of the underwriters on cargo, and followed their directions as to landing the cargo before sale. Surveys were then had, and the cargo was condemned and sold as unfit to go forward, and realized on such sale $20,752.83. The ship was also condemned as unseaworthy, and was sold for 8,000 rupees, equal to about $2,716.24."

"9. The said master, second officer, and a seaman of said bark duly made and extended, under oath, a protest against the said fire, and against the said actions of the said port authorities in depriving the master of his said command and in refusing to permit of the discharge of cargo after it had been commenced, and in causing the said vessel to be stranded or scuttled, and in allowing the tidewater to rise over her deck."

"10. On March 8, 1886, the owners of the bark J. W. Parker offered to turn over all the cargo to the libelants if they should sign an average bond. This offer was made in New York, and was declined."

"11. The 552 sound bales of jute were transshipped by the captain, and were delivered to libelants' agents at Boston. An average bond was then executed by libelants, by which it was provided that the general average should be adjusted by Jacob R. Telfair, an average adjuster at the port of New York. This was in pursuance of the following clause of the charter party:"

"All questions of average to be settled in accordance with York-Antwerp rules and the established usages and laws of the port of destination, to be stated by average adjusters appointed by charterers' agents and approved by owners. "

Page 157 U. S. 392

"12. On December 7, 1886, a general average adjustment was made up in accordance with the York-Antwerp rules and the usages of said port. The libelants presented to their adjuster various claims for their disbursements, which were allowed as general average, as were also certain disbursements by the underwriters upon the cargo."

"13. By the adjustment as made up as aforesaid, it was found and stated, after allowing the general average due to the vessel, that the libelants, as owners of the jute, were entitled to an average contribution of $5,335, and to the further sum of $1,283 for the loss of their saltpeter, together with the sum of $290.51 for advances and profits upon their charter party and $227.76 for certain disbursements of Ralli Brothers incurred in connection with said average adjustment. The owners of the vessel were willing to abide by this adjustment, but libelants or their underwriters declined to accept the same."

"14. Some months afterwards, this action was begun. The respondents thereupon paid into court the full amount found due to libelants and to their underwriters by said adjustment, and gave security for the residue of libelants' demand."

"15. The district court having made a decree sustaining said average adjustment, but condemning respondents in interest upon the sum of $5,335 as the contribution due for the loss on the jute, also in the sum of $77.89, the amount of the clerk's fees on respondents' deposit, the respondents thereupon paid into that court the further sum of $286.86, making the full amount of the decree of the district court."

The charter party and the protest were made parts of the findings of facts. But so much of either as is material to the decision of the case is stated in those findings.

The circuit court made the following conclusions of law:

"1. The extinguishing of the fire at Calcutta was a general average act, and the water damage so incurred was a general average sacrifice, for which contribution is due from all interests thereby benefited."

"2. An average bond having been given by the libelants, and the loss being adjudged a proper subject of general average, and no errors being shown in the adjustment, the libelants

Page 157 U. S. 393

are entitled to a decree for the balance stated by the adjustment as aforesaid, and for no more."

"3. The respondents are entitled to their costs in this Court."

The decree of the district court was thereupon affirmed, and on February 5, 1890, the libelants appealed to this Court.