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tain Parker was thereby led to the belief that this whale could not belong to either of those ships, and that there were no others near; but the captain of the Hillman was not present at that conversation, and his right is not to be impaired thereby.
It is objected that the owners of the Massachusetts ought to have joined in this libel, because that vessel was under a contract of inate-ship with the Hillman, but it appears that such contract did not make the whale, when captured, the joint property of the two vessels, but would only give a right to the vessel which at the end of the season should have taken the lesser quantity of oil, to claim of the other one half of the excess, so as to make both equal. It is also insisted by the respondents, that this claim is barred by an award of referees. It appears, that the matter in controversy was verbally submitted to two persons as referees, with power if they should not agree, to appoint an umpire.
It further appears, that the referee who is named by the respondents, had previously formed and expressed an opinion in their favor; and that this was known to their captain, who aided in selecting him. The two referees heard the parties who introduced the two captains and other persons as witnesses. Not being able to agree, they appointed an umpire, who never heard the parties, or any of their evidence, but formed his opinion upon the statements of the two referees. And thereupon, an award was made in writing and delivered to the parties, but which the libellants refused to abide by. Such an award was not binding. The libellants had no knowledge that one of the referees had formed and expressed an opinion adverse to their right, and they never agreed that an umpire should make a decision without hearing the parties or any of their witnesses. This would have been necessary even if both the referees had been unexceptionable, but it was peculiarly important that the umpire should not depend merely upon the statements of the two referees, when one of them had prejudged the case. The libellants are entitled to recover.
As to the measure of damages. The libellants claim the whole amount for which the oil and bone sold at Fairhaven. But this is not the measure. The libellants are entitled to a full indemnity, but no more : they are to have all that they have lost by the taking of the whale from them in the Ochotsk Sea on the 23d of July, 1852. The case will be sent to an assessor, to ascertain and report the facts necessary to be known before the court can determine the amount.
After the delivery of the foregoing opinion, the case was sent to E. H. Bennett, Esq., as an assessor, under an order directing him to ascertain and report " what was the value to libellants of said whale at the time and place it was taken possession of by the Zone – viz. on the 23d of July, 1852, in the Ochotsk Sea," with a direction to receive evidence of the opinion of competent persons as to the value; and also to report the quantity of oil and bone yielded by the whale.
After hearing the parties the assessor made a report, which was filed February 29th, in which he reported as follows:— “I report the value of said whale to the libellants at the time and place it was taken possession of by the Zone, was $2350. The respondents claimed, that by the terms of the order the assessor should take into consideration, in fixing said value, the risks and uncertainties that the proceeds of said whale would have been in fact realized by the ship Hillman, even if the whale had not been picked up by the ship Zone, and offered some testimony upon that point. If such risks shall be taken into account, I report the value at the time and place aforesaid to have been to the Hillman $2000.” He also reported the amount of oil originally yielded by the whale to have been one hundred and twenty barrels, and the amount of bone one thousand eight hundred pounds. In the supplemental report, furnished at the call of the respondents, the assessor stated that he had arrived at the sum first reported by estimating the value of the oil and bone at the prices respectively at which the Hillman sold her cargo at her arrival at New Bedford in March 17, 1851, and deducting therefrom the cost of casks, five per cent. for leakage and shrinkage, insurance on the three quarters not covered by policy on outfits, and the small incidental charges usually incurred at the home port, such as wharfage, cooperage, &c., amounting in all to $378.80.
Upon the coming in of the assessor's report, the libellants excepted only on one point; the finding of the assessor as to the quantity upon the evidence reported, which they claimed should be fixed at one hundred and thirty barrels, instead of one hundred and twenty. The respondents also except to the finding of the assessor on this point; claiming that the quantity should be only one hundred and ten barrels, and excepted otherwise to the report in the following particulars :—That no allowance was made for the freight of said oil and bone home; that no allowance was made for the labor of the Zone in cutting in and boiling out and stowing down said whale; and that no deduction has been made for the crew of the Hillman's share in said oil, which respondents maintained the libellants would save on account of releases given by witnesses, and the lapse of time.
These exceptions were argued before the court Feb. 29th. SPRAGUE, J. - The first question presented is one merely of fact as to the amount of oil and bone originally yielded by this whale. This is an appeal from an assessor, and I shall not reverse his finding unless it is affirmatively shown that he is wrong. (The judge here reviewed the conflicting evidence.) On the whole, I cannot say that the assessor has made a mistake; he seems to bave taken the medium, and I shall not disturb his finding. As to the last two exceptions, I have no doubt. The crew's claim is to a share of the proceeds of the voyage; and they have no property in the oil itself. The contract is, that out of the proceeds when realized they shall be paid according to their lays. It is the right and duty of the owners to protect the products of the voyage, and if unlawfully taken by any one to pursue and obtain them or the proceeds, and the seamen have then a right to share in the net avails. The owners must obtain and hold them for this
Otherwise the seamen could not get redress; they have no title to the property, and could maintain no action for it. If the owners neglect to take proper means to obtain indemnity, they would be responsible to seamen for that neg. lect. It is not for respondents to say that the owners will not pay the crew. The respondents certainly have no right to their share; and an individual might as well say when sued by a guardian, that perhaps he might never settle with his ward.
As to the claim for allowance for cutting in the whale, and other labor expended by the respondents, the assessor has found that this would have cost the Hillman nothing to have performed herself. This I consider a question of fact; and I see no reason to think the assessor has not found correctly. Whether it would have cost anything depends upon the time, and whether the time could be made available and valuable for other purposes. This might be different under different circumstances. It is a question of fact, upon which, in this case, the assessor has
passed. The principle of law in admiralty applicable to this point is, that a party who has suffered a wrong, is to do what he reasonably can to diminish the consequences; he must use reasonable means to indemnify himself where he can. This general principle may be illustrated by a case which, at first sight, seems to have little analogy to the present — that of a wrongful discharge of a mariner abroad. Notwithstanding his claim upon the owners, he is bound to earn wages or his passage, coming home, if he can reasonably do so, taking into account his previous capacity ; but if he has no opportunity, then he may recover full wages and expenses besides. It is only held that he must use reasonable means and not lie by. Applying this here, the Hillman was to use reasonable means to indemnify herself. She was not to neglect chances of filling up. If she had came home full, that would have diminished her loss. But upon the facts found, she cannot be called on to pay another ship for what would have cost her nothing. The answer to the claim made for the labor is, that it was done without request by the libellants, and without any benefit to them.
In regard to freight it is not quite so clear. But I cannot see that the assessor is in error. I do not find facts enough to show any benefit to the Hillman from the respondents bringing the oil. The burden is upon them to show that the Hillman has been benefited by their services before they can claim any compensation.
After the exceptions had been overruled as above, the libellants then moved that the first value stated by the assessor in his report be accepted. Upon this question whether any allowance shall be made for risks, the parties were heard and a decision reserved until March 8th, when the question was thus disposed of.
SPRAGUE, J. - The question is, whether an allowance should be made to the respondents from the value of the whale for the risk that it would not have been found, or if found, that it would not have been cut in and the oil stowed down in safety. I think, on the whole, that no such allowance should be made; and I will state the reasons. It has been decided that this whale was the property of the libellants, and was converted to their own use by respondents. Now although I reject the doctrine of exemplary damages, yet the rule is, that full indemnity should be given. If substantial doubts exist, they are to be solved against the wrong-doer. Now, in this case, it is entirely uncertain
what the risk was. Indeed, there is a very high probability from the weather, and the nearness of the ship, that the Hillman would have obtained the whole value of the whale. To allow anything would deprive the libellants of property which there is high probability they would have realized. I am not aware that any such deduction has ever been made in cases analogous. It is evident that the whale might, at any time even after it was alongside, have been reclaimed without deduction or compensation.
Another principle in the maritime law embraced in the doctrine of salvage may be applied. The claim here is somewhat in the nature of a salvage claim; it is, that the respondents have saved the property from certain hazards. It is not necessary to consider whether this property was in any such risk, as under any circunstances to lay a foundation for a claim of salvage. But in all cases where any allowance is made for salvage, the property must be taken and saved for the owner; want of good faith may forfeit all claim for salvage. I shall, upon these grounds, refuse any allowance for the risk, and accept the first value reported by the assessor.
A question being made as to interest, the court allowed it from the time when the Hillman discharged her cargo, March 25th, 1854.
A decree was then entered in conformity with the above for the libellants, in the sum of $2625.33 and costs.
T. D. Eliot, and R. C. Pitman, for libellants.
STEELMAN, LIBELLANT, v. Taylor.
Quære, how far the responsibility of the master of a vessel for the ac
curacy of the accounts of the lading and delivery of a cargo, may be
affected by the usage of a particular trade. In a common contract of affreightment, the master is entitled to full freight
on all the goods laden and borne on the bill of lading, though they may be by natural causes, and without his fault, deteriorated in quality, or diminished in quantity when delivered.
The material facts in this case are stated in the opinion of the court.
It was argued by J. A. Loring, for the libellant ; and Mackie, for the respondent.
WARE, J. — This is a libel for freight claimed to be due