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Ins. Co. of N. A., 189 Fed. Rep. 529. The owners of the cargo,in any event, would have been entitled to contribution from one another. Strang v. Scott, 14 App. Cas. 601, 609, 610; The City of Para, 69 Fed. Rep. 414; 74 Fed. Rep. 565, 567. The owners of cargo would also be entitled, notwithstanding the fault of the shipowner, to demand a contribution from him, subject to the reciprocal right of the shipowner to receive contribution in respect of his losses and sacrifices from them. The Strathdon, 94 Fed. Rep. 206; 101 Fed. Rep. 600.
The case being one of general average, the general average clause in the bills of lading makes the shipowner's sacrifices and extraordinary expenses proper subjects of contribution in an affirmative suit against the owners of cargo. Ralli v. Troop, 157 U. S. 386, 393; The Bona (1905), Probate, 125; McAndrews v. Thatcher, 3 Wall. 348, 366; The Star of Hope, 9 Wall. 203; Lowndes, Law of General Average, 5th ed. (1912), $ 37, p. 172.
The only substantial question in dispute is whether the shipowner, by force of the general average clause in the contract, can have his sacrifices and extraordinary expenses brought into the adjustment for contribution.
The answer to the first question is not controlled by the decision of this court in the case of The Irrawaddy, 171 U. S. 187. In this case the bill of lading contained a clause closely following the language of § 3 of the Harter Act of Feb. 13, 1893, c. 105, 27 Stat. 445. There was no such clause in “The Irrawaddy."
The question of the right of the parties to contract for a contribution in general average, in a case of negligent stranding, was not in issue, does not appear from the briefs to have been argued, and, therefore, cannot properly be considered to have been decided by anything that the court may have said in the course of its opinion.
The court expressly decided that the Harter Act does modify the public policy as previously declared by the
courts, which theretofore had refused to permit a carrier to exempt himself from the consequences of the negligence of his servants, in the performance of the essential duties of his employment.
To that extent, therefore, the public policy of the country and the rights and duties of shipper and carrier were held to be modified and changed by the Harter Act.
Whether this modification of public policy and of the shipowners' duty and liability by statute does not pave the way for a lawful contract that losses arising from sacrifices made by the master, in his quality of agent, in emergency, for all concerned, shall be apportioned in general average over all the interests benefited by the sacrifices, was not decided and that question is now, for the first time, presented for decision.
The first question certified should be answered in the affirmative.
The general average provisions contained in the bills of lading constitute a lawful contract mutually binding on the owners of the cargo and of the ship.
The general average clause does not purport to relieve the carrier from the performance of any duty that he owed to the cargo. It deals only with sacrifices voluntarily made, and with extraordinary expenses voluntarily incurred for the common safety.
As to the history of the York-Antwerp Rules of General Average, see App. Y 5th ed., Lowndes on General Average, pp. 788-798.
Where these rules are adopted in a contract of carriage, as in this case, they are held to relate “to the subjects of contribution in general average.” Ralli v. Troop, 157 U. S. 386, 412; Magdala S. S. Co. v. Baars, 101 Fed. Rep. 303; The Santa Ana, 154 Fed. Rep. 800; Greenshields v. Stephens (1908), 1 K. B. 51; (1908), A. C. 431.
Such contribution shall be payable in accordance with the rules, as a legal right, unless the person asked to con
tribute can show that the claimant is debarred from such right by an actionable wrong on his own part which occasioned the sacrifice. Stewart v. West India S. S. Co., L. R., 8 Q. B., 88, 95; affirmed, Id., 362, 363; Harris v. Scaramanga, L. R., 7 C. P., 481, 488, 489; Greenshields v. Stephens, supra; De Hart v. Campania &c., 8 Com. Cas. 42, 314; The Santa Ana, 154 Fed. Rep. 800; Anglo-Argentine Agency v. Temperley (1899), 2 Q. B. 403, 408, 412-413; The Rossija, 21 R. I. D. M. 215.
It is implied in every contract for the carriage of goods from or to a port in the United States that the shipment is to be carried and delivered subject to the terms and provisions of the Harter Act. The Silvia, 171 U. S. 462. It is also implied that the parties will mutually contribute to any general average loss that may arise or happen during the voyage. Burton v. English, 12 Q. B. D. 218, 223; Ralli v. Troop, 157 U. S. 396–397; Anderson v. Ocean S. S. Co., 10 App. Cas. 107, 112, 115.
The rights, duties and liabilities are not any different where the stranding is due to nautical faults, from those which arise when the stranding is due to a sea peril. Ralli v. Troop, 157 U. S. 386, 397; The Gratitudine, 3 C. Rob. 240; Anglo-Argentine Agency v. Temperley (1899), 2 Q. B. 403; Carver's Carriage by Sea, 5th ed., 1909 (S$ 294295).
The master in an emergency such as was involved in this case has authority to jettison. McAndrews v. Thatcher, 3 Wall. 347, 366; Star of Hope, 9 Wall. 203, 228.
Damage voluntarily done to the framework or appurtenances of the ship or by extraordinary use of the machinery is also the subject of contribution as a sacrifice. Birkley v. Presgrave, 1 East, 220; The Bona (1895), P. D. 125, 129, 131, 138–141; Robinson v. Price, 2 Q. B. D. 91; Int. Nav. Co. v. Atlantic Mut. Ins. Co., 100 Fed. Rep. 304, 312; Watson v. Ins. Co., 7 Johns. 57, 62; Providence & Stonington S. S. Co. v. Phønix Ins. Co., 89 N. Y. 559;
The Star of Hope, 9 Wall. 203, 228. The Yucutan, 139 Fed. Rep. 894 appears to be unsound in principle.
In The Ettrick, 6 P. D. 127, and Strang v. Scott, 14 App. Cas. 601, there was no contractual exemption, and no statute in those cases, that exonerated the shipowners from the faults of their servants; and see Greenshields v. Stephens (1908), 1 K. B. 51; The Enrique, 7 Fed. Rep. 490; The Bodo, 56 Fed. Rep. 980; The Santa Ana, 154 Fed. Rep. 800; DeHart v. Campania Anonima Seguros Aurora, 8 Commercial Cases, 42 and 314; Harris v. Scaramanga, L. R., 7 C. P., 481.
The general average clause is not contrary to public policy as defined by this court. Railroad Co. v. Lockwood, 17 Wall. 357; The Montana, 129 U. S. 397, distinguished; and see The Delaware, 161 U. S. 459; The Irrawaddy, 171 U. S. 187, 193.
Since the Harter Act the general average clause does not contravene public policy. It does not undertake to exempt the shipowner from the performance of any of the essential duties of his employment. He has been absolved from responsibility for the stranding and its consequences by the Harter Act. Pacific v. Honduras, 69 Fed. Rep. 414; 74 Fed. Rep. 504.
A clause of which the main intent and purpose is not to relieve the carrier from negligence in the performance of his essential duties, may be supported as reasonable and valid, even though its incidental or contingent effect may be to relieve him, in some measure, from the consequences of acts of servants for which, in its absence, he would be responsible. Hart v. Pennsylvania R. R. Co., 112 U. S. 331; Hohl v. North German Lloyd, 175 Fed. Rep. 544; The Queen of the Pacific (Pacific Coast S. S. Co. v. Bancroft-Whitney Co.), 94 Fed. Rep. 180; 180 U. S. 49; The Persiana, 185 Fed. Rep. 396; Phønix Ins. Co. v. Erie Transp. Co., 117 U. S. 312; Express Co. v. Caldwell, 21 Wall. 264, 268.
Regulation of general average by agreement is permitted by the laws of a great majority of the leading maritime countries. England-Simonds v. White, 2 B. & C. 805; DeHart v. Campania &c., 8 Com. Cas. 314; Lowndes on Gen. Average, 5th ed. 34; France—88 398, 405, Code of Commerce; Crowley v. Saint Freres, 10 Revue Internationale du Droit Maritime, 147, cited The Irrawaddy, 171 U. S. 199; Le Normand v. La Compagnie &c., 1 Dalloz, 471; Valroger, Vol. 5, p. 11; 4 Desjardins, Droit Maritime, pp. 121, 122; 2 Lyon-Caen & Renault, Droit Maritime, pp. 92, 93. Germany—Commercial Code of 1900, $ 702; Lowndes, 5th ed., p. 521; Judgment of the Reichs-Gerichte, 1905, S. S. Rossya; Lowndes, 5th ed., p. 547; 21 Revue Internationale du Droit Maritime, 215. Belgium-Arts. 145–148, Code of Commerce of 1908; Lowndes, 5th ed., p. 463; Navire Llansannor, 22 Revue Internationale du Droit Maritime, 534; The Irrawaddy, 171 U. S. at pp. 200, 201. Italy-Arts. 642, 643, Code of Commerce of 1883; Lowndes, 5th ed., p. 597; Lowndes, 5th ed., p. 610, note T; the Court of Appeal of Italy, Compagnie &c. v. De Giovanni, 21 Revue Internationale du Droit Maritime, 689. Chili-Arts. 1086, 1090, Code of 1865; Lowndes, 5th ed., p. 485. Portugal-Art. 634, § 2, Code of 1889; Lowndes, 5th ed., p. 639. Norway-Lowndes, 5th ed., p. 636. As to other countries, see Lowndes, 5th ed., p. 567.
These conditions are found in the Codes of Greece, 1910, S$ 193, 194, Lowndes, 5th ed., p. 562; The Argentine Republic, Code, Articles 1313, 1318, Lowndes, 5th ed., pp. 422, 427; Brazil, Code, Articles 762, 765, Lowndes, 5th ed., pp. 478, 479.
The decisions of the highest courts of France, Germany, Belgium and Italy, are identical in principle with those of the English courts that where nautical faults are excepted, contribution is allowed to the shipowners' sacrifices as though he were a stranger to the fault. In this case the clause carries the agreement much further It