always interpreted as operative only in case these perils and accidents render that performance impossible in spite of all such reasonable diligence (f). Here, again, we are to look to the causa causans. If, without a gale, or fog, or any accident, the master, by a blunder in his reckoning, or a seaman, by steering badly or neglect of soundings, runs the ship ashore, the owner must get her off at his own expense, and pay for any damage done to the cargo: he cannot ask the cargo to contribute (g). In the case of a collision with another ship, the position is the same, providing the collision is the result merely of some fault on board his own ship. Even if it be fault of the other ship, this, it was lately held, though since overruled, does not come under the head of "perils of the seas," so as to excuse the shipowner from liability towards the owners of his own cargo, when this is the sole protecting clause in his bill of lading (h); though such a mishap does fall within the phrase "accidents of navigation" (i). How the law may (f) That is, as pointed out by Lord Blackburn (ante, note (b) to p. 29), unless there is in the bill of lading some special clause to the contrary, such as "whether caused by the negligence of the crew, or not." (g) Ettrick (Prehn v. Bailey), 6 P. D. 127, at pp. 133, 135. “If the plaintiff," said Brett, L. J., "had not been in any fault, I am inclined, at present, to think that he would have been entitled to claim from the defendant if it was a general average contribution. But he has been in fault, and the authorities are conclusive that if the general average contribution which he claims is a general average contribution which arose by reason of a default of his, he cannot claim anything" (at p. 135). See also Robinson v. Price, 2 Q. B. L. D. 91; per Willes, J., in Johnson v. Chapman, 19 C. B. (N. S.) 563, at p. 581. (h) Woodley v. Michell, 11 Q. B. D. 47, at p. 51. (i) The Sailing Ship Garston Co. v. Hickie, 18 Q. B. D. 17. French, Q.C., in arguing this case, contended that the term "accidents of navigation " meant something more than "perils of the seas," and that the possibility of damage through the negligent navigation on the part of other ships one might fall in with, was one of the most obvious dangers of navigation. It was otherwise with one's own negligence. "If a man were to go blindfold along the streets," Lord Bramwell once said, "and to run against something, could you say he had met with an accident? It is different D stand in those mixed cases where accident, such as gale or fog, may combine with bad seamanship on the part of his own vessel, to bring about a collision, may be regarded as still an open question (j). The broad principle may be laid down, then, that no one can make a claim for general average contribution, if the danger, to avert which the sacrifice was made, has arisen from the fault of the claimant or of some one for whose acts the claimant has made himself, or is made by law, responsible towards the co-contributors (k). with the man he runs against. He might fairly say he had met with an accident, a peril which was liable to happen to any man who goes out in the road and meets with negligent people." (Lloyd v. General Iron Screw Collier Co., 3 H. & C. 284.) And this was the view unanimously adopted by the Court of Appeal. (18 Q. B. D. at p. 20.) Again, in the House of Lords, it was held that the decision of the Court of Appeal in Woodley v. Michell (11 Q. B. D. 47) could not be upheld: that "perils of the sea" could not have a different meaning in a policy of insurance and in a bill of lading; and that a loss by foundering, owing to a collision, even when the collision results from the negligence of that other vessel, is a loss by "perils of the seas." The application of the doctrine of causa causans appears, in short, to go no further than as defined by Willes, J., in Grill v. Iron Screw Collier Co., set forth above in note (b), at p. 29. (Wilson v. Owners of Cargo, per Xantho, July 14, 1887.) (j) In the case of The Xantho, both Lord Esher and Bowen, LL. J., noted these mixed cases as likely to occur, and declined to give an opinion concerning them. "There may also, no doubt," said Lord Esher, "be mixed cases, which I will not discuss now... There may be cases where the loss has been caused both by negligence and by a peril of the sea." (11 P. D. at p. 172.) Bowen, L. J., said :— "It was held in Woodley v. Michell (11 Q. B. D. 47), that where there was no possibility that the accident arose from the action in any degree of the elements, and where the facts tended to the conclusion that the other ship was in fault, the collision was not a peril of the sea; by that decision we are bound. ... The second class of cases, in which there may be negligence on the part of one or both of the ships, and also a contribution to the accident by the force of wind or waves, I will not now discuss" (11 P. D. at p. 175). (k) This is not the same thing as to say that there can be no claim for general average if the danger has arisen from the fault of the shipowner or his servants. A party who has not himself been in fault, e. g., an owner of cargo, may have such a claim. This is illustrated by a decision of the Admiralty Division in the case of The Argo. This ship having been run aground through faulty navigation, the shipowner was held not entitled to claim as general average the expense incurred by him consequences. 5. The question of cause leads naturally to that Rules as to of consequences. To what extent, according to English law, is the act of sacrifice, which gives rise to contribution, to be followed out to its more or less remote consequences? This is not fully expressed in the definition. The Rhodian maxim says nothing whatever about it. Lawrence's axiom, "all loss which arises in consequence," if taken quite literally, which, however, it probably was never meant to be, might go too far. It can hardly be intended, apparently, that every loss which would not or could not have taken place, had the sacrifice not been made, must be replaced by contribution. The cutting away of a mast, for example, while saving the ship and cargo from some imminent danger, may, by retarding the ship's sailing, bring them within the action of some new danger, from which they would otherwise have been free through having reached their destination. Suppose that from this cause she were to fall into an enemy's hands, it could hardly be contended that the loss by capture should be replaced by contribution as a consequence of cutting away the mast. This illustration may suggest, indeed, a possible solution of our in getting the ship and cargo off the strand, but the owner of the cargo was entitled to recover contribution from the shipowner as general average towards the loss of cargo jettisoned for that purpose. (Argo, Maritime Register, 24 March, 1882.) The cargo-owner in this case might presumably have gone further, and claimed from the shipowner the entire loss. But as an owner of cargo jettisoned may, if he pleases, claim from each contributor direct (Dobson v. Wilson, 3 Camp. 480), and as the fault of the shipowner would difficulty. May it, perhaps, be laid down that as cause and consequence are correlatives, and as we have seen that, in determining what is to be regarded as the cause of a general average act, we are to look, not to the causa proxima, but to the causa causans, or real efficient cause, we must follow the same rule with regard to its consequences? This would lead us, in many cases, not to bring in those consequences of which the sacrifice is merely the causa sine quá non. In the case of The Notting Hill, in 1884, Brett, M. R., speaking generally as to the principles of English law with regard to remoteness of damage, says: "The rule with regard to remoteness of damage is precisely the same whether the damages are claimed in actions of contract or of tort, and it has been laid down many times, both in Hadley v. Baxendale (k) and other cases. In Mayne on Damages (3rd edit.), at p. 39, it is thus stated: The first, and in fact the only, inquiry in such cases is, whether the damage complained of is the natural and reasonable result of the defendant's act? It will assume the character if it can be shown to be such a consequence as in the ordinary course of things would flow from the act, or, in cases of contract, if it appears to have been contemplated by both parties""(7). it Applying this rule more closely to general average, may be thought that, since we have to determine quod pro omnibus datum est, and since giving must always imply an intention to give, what we have here to ascertain must be, what loss at once has in fact occurred, and likewise must be regarded as the natural and reasonable result of the act of sacrifice? or, in other words, what the (k) 9 Ex. 341; 2 C. L. R. 517; 23 L. J. (Ex.) 179; 18 Jur. 358. (1) The Notting Hill, 9 P. D. 105, at p. 113. In the 4th (latest) edition of Mayne on Damages, this passage is found at p. 45. shipmaster would naturally, or might reasonably, have intended to give for all when he resolved upon the act? If, then, upon the act of sacrifice any loss ensues, which the master did not in fact bring before his mind at the time of making the sacrifice, it would have to be considered whether it were such a loss as he naturally might or reasonably ought to have taken account of (m). It must further be borne in mind, in applying this principle, more particularly to sacrifices consisting of disbursements, that for several purposes it is occasionally necessary to group together a series of consecutive events or situations, as for practical purposes constituting one entire operation, and to treat this aggregate as the cause of whatever loss is in this sense the consequence of any part of it. The rescuing of a ship and cargo from a position of danger (c. g., when sunk, or aground, or requiring to be carried into a port of refuge), may not be practicable by any single measure, to be resolved on and completed in the same hour or even day; it may require a series of exceptional measures, each only to begin when the previous one is completed, each perhaps involving an extraordinary expenditure, yet each of no value as means towards the common end, unless followed up by the others. Such a series must evidently be treated as a whole, and cannot be properly treated without bringing in all those consequences which might have been, and by a judicious shipmaster or other actor of the sacrifice would have been, taken into account in determining (m) This question, as from its metaphysical character might have been anticipated, appears to have been much considered by the learned framers of the German Code; and the result is summed up by Ulrich, in his valuable book on general average, to the effect that those consequences should be brought in which either were or ought to have been foreseen in making the sacrifice, or which stood in causal connection with it. (Ulrich, Grosse-Haverei, p. 5; see Appendix E., p. 426.) |