14. By the Civil Law the master of the ship was required to take care to have the contribution settled, and to receive the sums to be contributed, and pay them over to the losers, and might sue and be sued for them, or might retain the goods for the sums to be contributed by their proprietors (r). The same power of retaining the goods is given to the master by the French Ordinance, and even the further power of sale, under the authority of a magistrate, to the amount of the sums to be contributed (s). But Valin acquaints us, that this power is never in fact exercised in his country (t). Indeed, where contribution is to be made according to the price of the goods at the place of destination, the exercise of this power is incompatible with the mode of adjustment. In this country, which has no peculiar forum established for these matters, but in which the practice of insurance is very general, it is usual for the broker, who has procured the policy of insurance, to draw up an adjustment of the average, which is commonly paid in the first instance by the insurers without dispute. In case of dispute, the contribution may be recov ered either by a suit in equity (u), or by an action at [† 508] law (v), instituted by each individual entitled to receive, against each party, that ought to pay for the amount of his share (w). But a Court of Equity will not, at the instance of the sufferer, restrain the master from parting with the goods of the other merchants if he thinks fit to do so (r). And in the case of a general ship, where there are many consignees, it is usual for the master, before he delivers the goods, to take a bond from the different merchants for payment of their portions of the average when the same shall be adjusted (y). (1) 21. (r) Dig. 14, 2, 2. See Wellwood, tit. (s) Liv. 3, tit. 8; Du Jet. art. 21. (t) Tom. 2, p. 211. (u) Shepherd and Others v. Wright, Show. Parl. Cas. 18. (v) Marsham v. Dutrey, Select Cases of Evid. 58; Birkley and Others v. Presgrave, East, 220; Dobson and Others v. Wilson, 3 Campb. 480. (w) In an action by a ship-owner for contribution in respect of general average, it has been held that the defendant is en titled to an inspection of the statement of general average, but not of the documents from which it is drawn up. Twizell v. Allen, 5 Mee. & W. 337. (x) Hallet v. Bousfield, 18 Ves. jun. 187. (3) So deposed by a gentleman very conversant with this business in the case of Myer and Others v. Vander Deyl, Guildball Sit. before Lord Ellenborough, Ch. J., Dec. 1803. See Form, in the Appendix. sally true, that, in the sense of our law, all salvage charges are to be deemed a general average. They are so only when incurred for the benefit of all concerned. Peters v. Warren Ins. Co. 1 Story, C. C. 463. > (1) See ante, 502, note; U. States v. Wilder, 3 Sumner, 308; Simonds v. White, *The consignee, if he be the owner of the goods, is of course chargeable, but not in respect of the mere receipt of them under a bill of lading, unless it be made an express *condition in the bill of lading that he shall be so (z). It has been already observed, that in many foreign countries, some losses and expenses are held to be the subject of general average, which are not so held in the law of England, the decisions of our Courts being in general founded on a more strict conformity to the principle of the Rhodian law, and confining this general contribution to voluntary sacrifices, or to matters in the nature thereof, or consequent thereupon. But where an average had been settled on a different principle in a foreign port, to which the ship was destined, and the merchant had, in order to obtain his goods, been obliged to contribute to expenses to which he would not have been contributory by the law of England, it being proved that the average was settled according to the law of the country, the merchant was not allowed to recover back from the master the money so paid, although both the parties were British subjects, and the ship a British ship (a). (1) It had been pre 2 Barn. & Cres. 805; Strong v. N. York Firemen Ins. Co. 11 John. 323. See next note; Cole v. Bartlett, 4 Miller, (Lou.) 130; 3 Kent, (5th ed.) 244, and note. The master has a lien on goods shipped on freight, liable to contribution, on an adjustment of general average. Chamberlain v. Reed, 13 Maine, 357. See also cases cited above. > The doctrine of adjustment was fully discussed in Strong v. New York Firemen Ins. Co. 11 John. 323, and it was there held to be the duty of the master, in cases proper for a general average, to cause an adjustment to be made upon his arrival at the port of destination, and that he had a lien on the cargo to enforce the payment of the contribution. Where the general average was thus fairly settled in the foreign port, according to the usage and law of the port, it was binding and conclusive as to the items, as well as the apportionment thereof, upon the various interests, though settled differently from what it would have been in the home port. See Depau v. Ocean Ins. Co. 5 Cowen, 63; Loring v. Neptune Ins. Co. 20 Pick. 411; Thornton v. U. States Ins. Co. 3 Fairf. 153; Peters v. Warren Ins. Co. 1 Story, C. C. 463; 2 Phil. Ins. (2d ed.) 169, et seq. See Shiff v. Louisiana Ins. Co. 18 Martin, 629. Mobile is, it seems, in the adjustment of general average, to be regarded a foreign port in relation to New York. Lewis v. Williams, 1 Hall, (N. Y.) 430. In the case of Thornton v. U. States Ins. Co. 3 Fairf. 150, it was held, that in an action on a policy of insurance, by the owner of a ship against the underwriters, the adjustment of a general average loss is not conclusive on the owner, but he may show, that items of loss were omitted in such adjustment, which by the laws of this country, where the contract is entered into, should have been included. In an action between the owner of goods shipped on board a vessel on freight, and the master of the vessel, an adjustment and general average of a loss, made on the protest and representation of the master, does not preclude the owner from showing, that they are not liable to contribution, because the loss was occasioned by the culpable neglect or want of skill of the master. Chamberlain v. Reed, 13 Maine, 357. > viously decided that the holder of a respondentia bond upon goods in a Danish ship, who had contributed to general average, should recover the amount of his contribution from an English underwriter, on proof that such a security was con tributory in Denmark, although it is not contributory [† 509] in England (b); and † also that the owner of goods should recover on an English policy, a contribution to an average settled at Pisa, contrary to the English law, upon evidence that it had been usual for English underwriters to pay in similar cases (c). These two decisions took place at nisi prius. On the other hand, it had been decided by the Court of King's Bench, that a merchant who had paid a contribution to an average settled in Portugal, should not recover the amount on a policy of insurance in the usual form, it not being proved that the adjustment was made according to the known law and usage of the foreign country, otherwise than by a recital in the decree of the foreign tribunal by which the average had been settled, and which the Court did not deem to be sufficient evidence of that fact (d). "This contract," said Lord Ellenborough, "must be governed in point of construction by the law of England, where it was framed, couched as it is in the terms of an instrument in general and familiar use, and of known meaning in England, unless the parties are to be understood as having contracted on the foot of some other known general usage among merchants relative to the same subject, and shown to have obtained in the country where by the terms of the contract, the adventure is made to determine, and where a general average (if such should, under the events of the voyage, come to be claimed) would of course become demandable. Now, without pronouncing what might have been the effect of a statement in this case, that it was the known and invariable usage amongst merchants at Lisbon, the port of discharge, to treat losses and expenses of the kind and description, which are specified in the case, as the subjects of general average, we cannot but observe that the case contains no allegation of fact whatsoever on this head, but merely states a decree of a Court at Lisbon, which proceeds upon the assumption of this supposed fact as its foundation. Here the underwriters have a right to insist, as this defendant does insist, that the general average, to which alone their indemnity is confined, is general average as it is understood in England, where the contract of *indemnity was formed, no other distinct and different sense, (b) Walpole v. Ewer, Park, 629. (c) Newman v. Cazalet, id. 630. (d) Power v. Whitmore, 4 M. & S. 141. *and use of that term being proved in evidence, to obtain in point of fact, and to be generally adopted by usage in the country where the contract was to determine, viz. Lisbon ; the general laws and practice supposed to authorize this demand of general average being only recited [† 510] in the terms of another judgment against the assured, and not alleged or proved as a fact in this present case, and which recital in the judgment we are of opinion is not a competent medium of proof for this purpose." It has been suggested (e) that the authority of this case has been impaired by the decision of the Court of King's Bench in the before cited case of Simonds v. White (ƒ); but that does not appear from the report. Lord Tenterden, in that case, said: "The case of Power v. Whitmore cannot govern the present, for two reasons: first, because it arose between different parties, and on a different species of contract; and, secondly, because in the opinion of the Court, the facts there stated did not show that the average had been adjusted according to the established law and usage of the country where the adjustment was made. If the goods belong entirely to persons of the nation where the ship has arrived, they cannot, with any reason, complain of an adjustment made according to the authority of their own law. Then suppose the goods belong to persons of different nations, the adjustment must be made either according to some one, or it must be made in parts, according to as many different laws as there happen to be persons of different nations concerned in the adventure. The latter mode would be attended with great confusion, perplexity, and inequality, even if it should be found practicable, which in many cases it will not be. In this case, also, therefore, the law of the country must prevail. The shipper of goods, by assenting to general average, must be understood to assent to its adjustment at the usual and proper place, and according to the usage and law of the place at which the adjustment is to be made. I am to be understood as speaking of a case depending upon general rules and reason, and not upon a special or particular con tract." (e) American edition, p. 350. (f) 2 B. & C. 805. 52 [† 511] + CHAPTER XI. OF STOPPAGE IN TRANSITU; AND HEREIN, (Ss.)1. What it is. 2. In what cases, generally, Goods may be stopped in transitu. 1. WHEN goods have been shipped upon credit, and the consignee has become a bankrupt, or failed (a), the law, in order to prevent the loss that would happen to the consignor by the delivery of them, allows him, in many cases, to countermand the delivery, and before, or at their arrival at the place of destination, to cause them to be delivered to himself, or to some other person for his use. (1) This is usually called Stoppage in Transitu. (a) See as to the meaning of "failure" and "insolvency" as applicable to the right of Stoppage in Transitu, Biddlecombe v. Bond, 4 A. & E. 332; Vertue v. Jewell, 1 Campb. 31; Newson v. Thornton, 6 East, 17; Dixon v. Yates, 5 B. & Ad. 315. Mr. Smith in his Com pendium of Mercantile Law, p. 501, adverting to these cases, expresses an opinion that the term insolvency (when used with reference to this branch of the law) is satisfied by general inability evidenced by stoppage of payment. (1) The law of America on the subject of stoppage in transitu is the same in general as it is in England. Stubbs v. Lund, 7 Mass. R. 453; Illsley v. Stubbs, 9 Mass. R. 65; Hollingsworth v. Napier, 3 Caines, R. 182; Hunn v. Bowne, 2 Caines, R. 38; Wood v. Roach, 2 Dall. R. 180; 1 Yates, R. 177; Walter v. Ross, 2 Wash. Cir. R. 283; Ryberg v. Snell, 2 Wash. Cir. R. 294, 403; Conyers v. Ennis, 2 Mason, 236; Barrett v. Goddard, 3 Mason, R. 107; Jordan v. James, 5 Ham. (Ohio) 88; Chapman v. Lathrop, 6 Cowen, 110; Bell v. Moss, 5 Wharton, 189; Buckley v. Furness, 17 Wendell, 504; S. C. 15 Wendell, 137; 2 Kent, (5th Am. ed.) 541, et seq.; Long on Sales, (Rand's ed.) 307-338; Ross, Vend. & Purch. of Personal Property, 217, et seq.; Rowley v. Bigelow, 12 Pick. 313; Stanton v. Eager, 16 Pick. 467; Newhall v. Vargas, 15 Maine, (3 Shapley,) 314; S. C. 13 Maine, 93; Chitty, Cont. (6th Am. ed.) 431, et seq., and notes. The act of stoppage in transitu, is, in its nature, adverse to the vendee; and the doctrine on that subject does not apply, where the vendor and vendee are agreed that the property shall be reclaimed; for it then becomes a question of reconveyance and rescission. Ash v. Putnam, 1 Hill, (N. Y.) 302. See Naylor v. Dennie, 8 Pick. 198. It seems that the vendor is not entitled to the right of stoppage in transitu, if at the time of the sale he knew the vendor to be insolvent. Buckley v. Furness, 17 Wendell, 504. > |