Imágenes de páginas
PDF
EPUB

CHAPTER VI.

Contribution does not arise from any Contract-The two well-established Exceptions to the Rule of ContributionGood Answer to Claim for Contribution if Ship was Unseaworthy-Case of Burton v. English-Case of AngloArgentine Live Stock and Produce Agency v. Temperley Shipping Company-Profession or Calling of an Average Stater or Average Adjuster-What Circumstances must be Considered prior to making an Adjustment--Case of The Brigella Question whether Underwriters of Policies on Ship and Freight are liable to pay certain Proportions of certain Expenses incurred by Assured-Interests which Contribute to General Average-Interests which do not Contribute to General Average-Latest Case on subject of Particular Average.

CONTRIBUTION "does not arise from any contract at all, but from the old Rhodian laws, and has been incorporated into the law of England as the law of the ocean. It is not as a matter of contract, but in consequence of a common danger, when natural justice requires that all should contribute to indemnify for the loss of property which is sacrificed by one in order that the whole adventure may be saved." The principle upon which contribution becomes due does not appear to differ from that upon which

claims of recompense for salvage services are founded. But in any aspect of it the rule of contribution has its foundation in the plainest equity. In jettison, the rights of those entitled to contribution, and the corresponding obligations of the contributors, have their origin in the fact of a common danger which threatens to destroy the property of them all; and these rights and obligations are mutually perfected whenever the goods of some of the shippers have been advisedly sacrificed, and the property of the others has been thereby preserved.

There are two well-established exceptions to the rule of contribution for general average. The first exception is when a person, who otherwise would have been entitled to claim contribution, has, by his own fault, occasioned the peril which immediately gave rise to the claim, it would be manifestly unjust to allow him to recover from those whose goods are saved, although he may be said, in a particular sense, to have benefited by the sacrifice of his property. In any question with them he is a wrong-doer, and, as such, under an obligation to use every means within his power to ward off or repair the natural consequences of his wrongful act. He is not entitled, in any sense, to payment for his services, or indemnity for

losses sustained by him, in the endeavour to rescue property which was imperilled by his own wrongful act, and which it was his duty to save.

The second exception is in the case of deck cargo. The reason is obvious why relief by general contribution is denied to the owners of goods stowed on deck, when these are thrown overboard in order to save the cargo under hatches. "According to the rules of maritime law, the placing of goods upon the deck of a sea-going ship is improper stowage, because they are hindrances to the safe navigation of the vessel; and their jettison is therefore regarded in the question of the other shippers of cargo as a justifiable riddance of incumbrances which ought never to have been there, and not as a sacrifice for the common safety. But the owner of deck goods jettisoned, though not entitled to general contribution, may nevertheless have a good claim for indemnity against the master and owners who received his goods for carriage upon deck, and this exception does not apply either in (1) those cases where, according to the established custom of navigation, such cargoes are permitted, or (2) in any case where the other owners of cargo have consented that the goods jettisoned should be carried on the deck of the ship."

It will be a good answer to a claim for general average if the ship were unseaworthy at the commencement of the voyage, and that the average loss was occasioned by such unseaworthiness. There can be no proper jettison from an overladen ship, so long as ship and cargo are exposed to no peril whatever from the action of the sea, but are merely exposed to the inconvenience of being unable to reach their destination in the ordinary course of time.

In a case which came before the Courts of Appeal in 1883 the plaintiffs were timber merchants, and they shipped on the defendants' vessel a cargo of timber, part of which was deck cargo, and also a cargo of iron under different contracts. The ship had been chartered by the plaintiffs, but the goods were shipped under a bill of lading which referred to the charter party. During the voyage part of the deck cargo was jettisoned for the safety of the vessel and rest of the cargo, and an action was brought for general average contribution against the shipowners, and it was contended that they were not liable by reason of a stipulation in the charter party. The ship was not a general ship, but one which took only two cargoes of iron and timber. A clause in the charter party on which the defendants relied was as follows:

"The steamer shall be provided with a deck load if required at full freight, but at merchants' risk." Obviously, this stipulation was in favour of the shipowners, for in order to earn a larger freight they required part of the cargo to be deck cargo, and then it was to be at the merchants' risk. Now, if there were an improper jettison by the master and crew, this stipulation would relieve the shipowners from liability. The general rule is that where there is any doubt as to the construction of any stipulation in a contract, the court ought to construe it strictly against the party in whose favour it has been made. If the liability is in consequence of any act of any of the shipowners' servants for which the shipowner would be liable but for this stipulation, then it follows that the defendants are freed from liability. This stipulation would cover any act of the master or crew, which, being done by them as servants of the shipowner, would otherwise make him liable. It therefore covers the case of improper jettison; also a loss caused by a collison or stranding owing to the negligence of the master or crew." In theory a claim for contribution arises by reason of a voluntary sacrifice by the cargo-owner for the benefit of the ship

ד

[ocr errors]

1 See Burton v. English, 12 Q.B.D, 218,

« AnteriorContinuar »