Strang, Steel & Company v A. Scott & Company
| Jurisdiction | UK Non-devolved |
| Judgment Date | 01 August 1889 |
| Date | 01 August 1889 |
| Court | Privy Council |
General Average - Jettison - Right to Contribution - Remedies - Lien on Goods salved.
The right of contribution in respect of jettisoned cargo is based on the danger to ship and cargo requiring sacrifice to which all must contribute. Such right does not belong to the wrongdoers whose acts have led to the jettison, or to those who are legally responsible for them.
Where a ship is stranded through the negligence of her master, and thereby ship and cargo are placed in a position of such imminent danger as to make it prudent and necessary to jettison part of the cargo in order to save the remainder and the ship:—
Held, that innocent owners of the jettisoned cargo are entitled to general average; secus with regard to the owners of the ship unless their ordinary relations to the shippers have been varied by contract.
The rules of maritime law relating to the rights and remedies resulting from a proper case of jettison are:—
(1.) Each owner of jettisoned goods becomes a creditor of ship and cargo saved.
(2.) He has a direct claim against each of the owners of ship and cargo for a pro ratâ contribution towards his indemnity; which he can recover (a) by direct action; (b) by enforcing through the ship master, who is his agent for that purpose, a lien on each parcel of goods salved to answer its proportionate liability.
APPEAL from a decree of the recorder (Aug. 15, 1887) in favour of the respondents for Rs.1,592. 11 paid by them to the appellants under protest to obtain the delivery of the respondents' goods.
The facts are stated in the judgment of their Lordships.
The recorder found as a fact that the jettison was occasioned by the negligence of the master. He held that in consequence no claim for general average contribution could be enforced, and that it was unreasonable in any case for the appellants to insist on having the assessment of the general average contribution paid to them so as to be under their sole control.
Finlay, Q.C., and Barnes, Q.C., for the appellants, contended that the respondents, as owners of goods salved by means of the jettison, were liable to contribute to general average for the cargo jettisoned, and the other general average expenses incurred. Even if the jettison had been, as alleged, occasioned by the master's negligence in the navigation of the ship, that did not affect the right of the innocent owners of the goods jettisoned to indemnity, or relieve the owners of the goods salved from their liability. Under such circumstances it is the duty of the master to collect the general average contributions before he parts with the goods, and in such case he acts not merely as agent for the shipowners, but also as agent for the shippers. Whether the contribution is for the benefit of ship or cargo is immaterial, in either case it is the duty of the master to collect it and to assert a lien on goods salved in respect of it. Reference was made to Simonds v. WhiteF1; Crooks & Co. v. AllanF2; Schloss v. HeriotF3; Hallett v. BousfieldF4; Dobson v. WilsonF5; Burton v. EnglishF6, which lays down the principle on which general average is taken: The Cargo ex LaertesF7; The GlenfruinF8.
The bills of lading under which the respondents' goods were carried exempted the owners of the vessel from all liability in respect of the negligence of the master in navigating the vessel. Consequently the negligence of the master did not deprive the owners of the vessel of their right of lien on the cargo for general average, sacrifices and losses incurred. They were accordingly entitled to demand a deposit of 5 per cent. on the value of the goods, and to refuse to release them unless such deposit were made. See Lowndes on General Average (4th ed.), 332; Abbott on Shipping, (12th ed.), 532, Citing the Digest as to the position of the master according to Civil Law; Parsons on Marine Insurance, c. v. s. 10, vol. ii., p. 285. The claim to general average does not depend upon exceptions in bills of lading, it rests on the general law, springing out of the existence of a common duty of sacrifice and the resulting duty of contribution by those who are benefited by the sacrifice.
Bigham, Q.C., and Fitzgerald, for the respondents, contended that the grounding of the vessel was caused by the negligence and misconduct of the master. He and the shipowners were liable for the losses thence resulting. When the master jettisoned cargo, he was the agent in doing so of the shipowners, and not of all concerned. They must bear the loss by the jettison, for under the circumstances of the case the owners of cargo were exempted, and the jettison did not give rise to a general average contribution. The sacrifice was not for the benefit of all, but for the benefit of the owners in consequence of the wrongful act of the master, see 2 Parsons on Marine Insurance, pp. 217, 225; Abbott on Shipping, ed. 1881, p. 499. If goods are jettisoned by reason of their having been brought into extra peril by the owners or master, then the goods salved are under no liability to contribute. See Parsons on Marine Insurance, vol. ii., p. 285; Law of Shipping, vol. i., p. 211; and the cases in reference to deck goods jettisoned, Ware's Admiralty Decisions (District of Maine), p. 326, The Paragon. The contract evidenced by the bill of lading and the exceptions has nothing to do with the question of general average. The case must be disentangled from the clauses in the bill of lading. See Crooks v. AllenF9; Wright v. MarwoodF10; The NorwayF11; Huth & Co. v. LamportF12; Ashmole v. WainwrightF13; The EttrickF14.
Barnes, Q.C., replied.
[1889 Aug. 1.] The judgment of their Lordships was delivered by
LORD WATSON: —
The steamship Abington, on her way from London to Rangoon, with a general cargo, ran aground on the Baragua Flats in the Gulf of Martaban. Part of the cargo was thrown overboard in order to lighten the vessel, which was got off by that means, and was enabled to reach her destination in safety on the 19th of October, 1886. On the day of her arrival in the port of Rangoon, the appellants, Strang, Steel & Co., local agents for the ship, intimated to the respondents, A. Scott &...
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