Dupont v. Vance/Dissent Campbell
Mr. Justice CAMPBELL dissenting.

I dissent from that part of the opinion of this court which allows to the libellants a decree against the libellee for the amount of his contributory share in the account of average.

The libel is for the non-delivery of cargo according to the conditions of a bill of lading. The exemption claimed in the answer is, that the failure was occasioned by a peril of the seas, which made a jettison of the goods necessary; and this issue was tried in the District and Circuit Courts.

The objection raised here is, that the exemption is not complete, unless the contributory share of the libellee, to be ascertained, in the first place, by the adjustment of an average account, is also admitted and tendered.

In Bird v. Astcott, (Bulst., 280,) which was an action on the case against a carrier for the non-delivery of goods lost by a jettison, Coke, Lord Ch. J., cited a case which had been decided, and said, in respect to it, 'We all did resolve, that this being the act of God, this sudden storm, which occasioned the throwing over of the goods, and which could not be avoided; and for this reason the plaintiff recovered nothing.' (Mouse's case, 12 Co., 63.)

I have not been able to find a precedent, either in the United States or Great Britain, where a contributory share, in the nature of average, has been recovered, in a contentious litigation, in an action on a bill of lading for the non-delivery of cargo.

But the books of precedents show that average contributions are recovered in actions, either of special or general assumpsit, the form of the action depending on the fact of the adjustment of the account. (2 Chitt. Plead., 50, 152, 161; Saund. Plead. and Ev., 278.)

'I entertain a decided opinion,' said Chancellor, then Ch. J. Kent, 'that the established principles of pleading, which compose what is called its science, are rational, concise, luminous, and ought, consequently, to be very carefully touched by the hand of innovation.' (1 Joh., 471, Bayard v. Malcolm.) And the advantage of an orderly, not to say scientific system of administration, is as apparent in the courts of admiralty, and the mischiefs of uncertainty or inexactness are as positive there, as in any other tribunals. Such seems to have been the opinion of Justice Story. (The Boston, 1 Sum., 328.) This difference in opinion with the court would not have been the ground of a public dissent on my part, if I had not deemed the decree erroneous, and if I did not believe that the parent error is to be found in this departure from accurate pleading. The decree treats the liability of the master or owner for an average contribution as an integral part of their special written contract of affreightment; and their failure to pay their share of average is disposed of as a breach of the express obligation. My opinion is, that the obligations are distinct, though intimately associated, and are referable to different principles of law, and in the judicial administration of the United States may be subject to distinct jurisdictions.

The principle of the rule of general contribution, as applied to the case of a jettison, exists in all commercial nations; and the rule itself became a part of the statute law of England, in the reign of the Conqueror, and that of his youngest son. In a later period, the same principle was applied to a great number of analogous cases.

The inquiry is, upon what courts was the duty devolved of enforcing and administering this principle of general jurisprudence, and particularly in the cases of average? In Berkley v. Peregrave, (1 East., 220,) which was a special action of assumpsit for average on an unadjusted average account, Lord Kenyon says: 'This action, the grounds and nature of which are fully set out in the special count, is founded in the common principles of justice. A loss is incurred, which the law directs shall be borne by certain persons in their several proportions. When a loss is to be repaired in damages, where else can they be recovered but in the courts of common law? And wherever the law gives a right, generally, to demand payment of another, it raises an implied promise in that person to pay.' In Dobson v. Wilson, (3 Camp., 480,) Lord Ellenborough said: 'A court of equity may perhaps be a more convenient forum for adjusting the claims of the different parties concerned; but if a shipper of goods, which are sacrificed for the salvation of the rest of the cargo, is entitled to receive a contribution from another shipper whose goods are saved, I know not how I can say this may not be recovered by an action at law. This is a legal right, and must be accompanied with a legal remedy. The difficulty of showing, by strict evidence, the exact amount of the contribution, is great; but, as there are data upon which it may be calculated with great certainty, I think, is no objection to the action.' (Price v. Noble, 4 Taun., 123.)

Holroyd, in the argument of the case in East., said: 'At the common law, where a contribution was required, a writ of contribution issued, precedents of which are to be found. (Fitz. Nat. Brev.) This has fallen into disuse; because, in most instances, as many persons were concerned, a more easy remedy was administered in equity.'

And so, from the earliest of the chancery reports, we learn that chancery will enforce an average or contribution to be made, when necessary, and that it will enforce an agreement among merchants to pay average. (Comyns's Dig., Chan. 2 J., 2 S.; Hick v. Pallington, Moor., 442; Ca. Parl., 19.) Spence, in his history of equitable jurisdiction, says, 'That the court of chancery, from a period which cannot be traced, but which, as it was also apparently adopted from the Roman law, was probably coeval with the establishment of the court, exercised jurisdiction to compel contribution amongst general shippers of goods, when those belonging to one were thrown overboard for the safety of the ship, or in cases, as they are technically called, of general average.' (1 Spenc. Eq. Ju., 663.) The popular treatises on the chancery system show that the title 'Constribution' is one of great reach, comprehending a variety of cases which rest upon a familiar maxim of equity, and that average is only an instance of its application. How stands the historical evidence in regard to the jurisdiction of the admiralty courts, with reference to his subject? What say the 'Black Book' and 'Godolphin,' or the controversionalists, Prynne, or Jenkins, in support of the ancient claims of these tribunals? What is to be found in the treaty of limits between the courts of common law and admiralty? In the case of the Constancia, (2 W. Rob., 488,) a question arose upon the distribution of the proceeds of a ship and cargo which were on deposit in the registry of the court, in a cause in which its jurisdiction was indisputable.

The claimant asserted a preference in the distribution, because a portion of the cargo belonging to him had been sold for the repairs of the ship. The learned judge of that court said: 'As far as my own experience extends, no claim of a similar description is to be found in the annals of the court; a circumstance which naturally induces me to consider with some carefulness whether the novelty of the claim be specious or real. In other words, whether, novel in appearance, it does not rest upon some recognised principles by which other claims have been decided. What, then, is the true character of the claim in question? It is a claim on behalf of the owners of certain property shipped on board of the vessel, and applied to relieve the ship's necessities, and to enable her to complete her voyage.

'In the case of the Gratitudinine, Lord Stowell has held that property so sacrificed is to be considered as the proper subject of general average; and Lord Tenterden, in his book on shipping, lays down the same doctrine. If this be so, and if, upon the authority of my Lord Stowell, thus confirmed by my Lord Tenterden, I am to consider this claim as a subject of general average, two considerations immediately suggest themselves. First, whether I have any jurisdiction at all over questions of general average; and, secondly, whether I could satisfactorily exercise such a jurisdiction under the circumstances of this case? The absence of any precedent, where the court has exercised the jurisdiction, is of itself a strong prima facie proof that I have no authority to entertain the question at all; and I am the more strongly inclined to this opinion, by the further consideration that, in all cases of average, it is essential that the tribunal which is to adjust it should have the power to compel all parties interested to come in, and to pay their quota. I possess no such power; and if I could not bring all parties interested before the court, I could not adjust a general average, which is a proportionate contribution by all.' These citations from the opinions of the various tribunals which administer different departments of the judicial power of Great Britain, show that the doctrine upon which average contributions is made is not peculiar to the maritime code; and, also, that the maritime courts of the first commercial power that has existed have never administered it, and their judges suppose their modes of proceeding unsuitable to it. In the case of the Constancia, the res was in the custody of the court of admiralty, yet that court denied the existence of a maritime lien, or that any liability of the freighters against the ship could be enforced there. And this is equally apparent from the doctrines of the courts of chancery and law. In Hallett v. Bonsfield, (18 Vesey, jr., 187,) which was the case of a shipper whose property had been overthrown to lighten a ship in a storm, and who moved to restrain the master and ship-owner from delivering any part of the cargo and receiving the freight, or parting with any share of the ship, Lord Eldon said, 'that in such a case there is a lien upon the goods of each freighter, for contribution and average, in some sense; that is, the master is not bound to part with any part of the cargo until he has security from each person for his proportion of the loss; but there is no authority, that on the ground that he has a lien to the extent of entitling him to call on every person to give security for the amount of their average when it shall be adjusted, every owner of a part of the cargo can compel the captain to do so; and it strikes me, upon the short time I have had to consider it, that is a length the plaintiff cannot reach. The defendant it is true is a trustee for others, but the nature of the trust is regulated by the practice; and there is no instance of an action, or a suit in equity, to effectuate the lien, otherwise than through the right of the master to take security; that practice ascertaining the true nature and extent of the trust.' This lucid statement of the English law explains the meaning of the older class of writers on commercial law, when they speak of the master's lien, and his duty to settle an average account.

Valin observes, that the article of the ordinance of 1681, which confers a right of detention upon the master, does not impose an imperative obligation upon him, and that he may deliver to each freighter his goods, without fear of consequences, unless specially required to withhold them. And other writers concur in the opinion, that the freighters, under that ordinance, had no action against one another. (Boucher Droit Mar., 450, 451.)

Lord Tenterden cites this case from Vesey, jr., without dissent, in his work on shipping, (Abb. on Ship., 508;) and in Simonds v. White, (2 B. and C., 805,) he describes the power of the master over the goods 'as a power of detention,' given in order that the expense, inconvenience, and delay of actions and suits, may be avoided. This court, in Cutler v. Rae, (7 Howard, 729,) declared that the party entitled to contribution 'has no absolute and unconditional lien upon the goods liable to contribute. The captain has a right to retain them until the general average with which they are charged has been paid or secured; and, that this right of retainer is a 'qualified lien,' 'dependent on the possession of the goods by the master or ship-owners,' and 'ceases when they are delivered to the owner or consignee;' 'and does not follow them into their hands, nor adhere to the proceeds;' and a corresponding opinion of Lord Tenterden is to be found in Scaife v. Tobin, (3 Barn. and Ad., 523,) in which he says, 'a consignee who is the absolute owner of the goods is liable to pay general average, because the law throws upon him that liability; but a mere consigned, who is not the owner, is not liable.' And this demonstrates that the lien for average is not a maritime lien. A maritime lien does not include or require possession. The claim or privilege travels with the thing, into whosesoever possession it may come. It is inchoate from the moment the claim or privilege attaches, and when carried into effect by legal process, by a proceeding in rem, relates back to the period when it first attached. (Harmer v. Bell, 2 L. and Eq., 63.) These cases show, that neither in the adjudications of the courts of Great Britain or the United States, nor in the usages of their merchants, is there any sanction for the doctrines of this decree. No adjudication during sixty years of our history is to be found, where the power to adjust or to collect an average account is affirmed, or has been exerted by the district courts sitting in admiralty, upon direct application to them for the purpose.

The importance of the subject will justify me in an examination of the continental authorities, which are supposed to establish the existence of a maritime lien for contribution. The ancient codes do nothing more than recognise the existence of a rule of contribution in regard to losses arising from a jettison, or cases of a similar character, and the master's power of detention of the cargo saved, for the security or payment of the contributory shares, but they do not ascribe any greater operation to the rule, either in affecting property or in designating the jurisdictions to which the enforcement of the rule should be committed.

The leading authority cited for the doctrine, that average affords a maritime lien on the property saved, is found in a line of Emerigon, who says, 'the action in contribution is real in its nature.'

But that author discriminates the feature in a real action to which the action in contribution has any resemblance. The feature is, 'that the action vanishes if the effects saved by means of the jettison perish before arriving at their destination.'

The real action is for a thing, or to assert some right in it, and is terminated by its surrender, or destruction without the fault of the possessor. So long as the ship and cargo are exposed to peril in the same voyage in which the jettison is made, the action in contribution is inchoate, and dependent on the ultimate safety of the thing; and thus far it resembles a real action. But when the safety of the ship and cargo is confirmed, the liability of the contributories becomes personal, and the sums due are recoverable without further reference to them; in France, by action in contribution; and in England, by a bill in equity for contribution, or action of assumpsit. It is a great mistake to suppose that the action in contribution was a hypothecary action, as I shall hereafter show.

In the time of Emerigon it was thrown upon the master, as the legal attorney of all persons interested in the ship and cargo. It was his duty to collect the contributory shares, and to pay them among the parties concerned; but he was not liable for the shares of insolvents, nor obliged to detain the goods, and that was an unusual, if not an unprecedented remedy.

The ordinance of 1681 simply permitted this remedy to be used. This ordinance was defective, in not defining the rights of the master in the goods liable to contribution. The ordinance did not take the precaution to establish the existence and legitimacy of privileged claims, is the testimony of those who framed the Code of Commerce of Napoleon. (3 Locr e Com., 22.) The Code of Commerce was framed to repair what was considered a defect. In reference to average, it provides, 'that in all the cases before mentioned, the master and mariners have a privilege on the goods or their proceeds for the amount of the contribution.' This clause was not in the 'proj et' of the commission, nor in their revision; but after successive changes, the article appears in this form for the first time in the final draught of the code. The jus in re is conferred by this clause on the master, and he may proceed to enforce his rights by judicial seizure and sale, or opposition, or he may sue each contributory for his share in contribution, and is responsible in an action to each of them. But the evils of dormant liens are removed by limitations upon the extent and duration of the claim. The code bars actions against the freighter who receives his goods and pays his freight without a legal notice of the claim for average; and each claim must be notified in twenty-four hours to the opposite party, and be pursued by judicial demand in one month. (Thier Droit Con., 41, 124, 277; 4 Locr e Com.; 3 Pard. Droit Com., sec. 750; 18 Dall., 544.)

Other articles define the liability of the owner, and the contributory share of the ship and cargo, the responsibility of the master, and create a privilege upon the ship and freight to answer the agreements of the charter-party, and whatever defaults of the master and mariners. (Thiernt Con. Droit, 28, sec. 2; 29, sec. 11; Code de Com., 190, secs. 11, 216, 222, 280.)

The commentaries of Pardessus, Locr e, Boulay, Paty, and other authors, are made upon these enactments of French statute law. They affirm that these articles establish, as the law of France, that the frieghter of a ship is obliged, by a contract or quasi contract to the master, to contribute his share of an average contribution; and that the master engages to indemnify the freighter whose property has suffered or been sacrificed for the common benefit; and that reciprocal rights of action are given to either party. I have no occasion to question the accuracy of their conclusions, nor to deny that the code itself embodies the usages, experience, and regulations, of the French nation in the management of their commerce, and is adapted to the wants and habits of their merchants. And no one can doubt that the authority of Louis XIV and Napoleon was adequate to the introduction of the ordinance and the code. But the question arises here-and it is one of grave import to those who desire to preserve the Constitution of the Union inviolate, and the limits it prescribes to the judicial power of the Federal Government, and the lines of division among the Federal courts undisturbed-the question arises, by what authority is it that the commercial system of France, the product of the legislative authority of her monarchs, has become the basis for judicial decision in the courts of the United States, and her legal administration of purely municipal regulations is taken as a guide to determine the jurisdictional limits of those courts of justice? That Congress may prescribe rules in reference to the settlement of average contributions, arising in the foreign or federal commerce of the country, may be admitted, and also may assimilate the American and French systems of commercial regulation. But I am not prepared to admit that this can be done by judicial authority.

The commercial systems of Great Britain and the United States recognise no such contract between the masters and freighters as the French code establishes; they invest the master with no such privilege upon the property of the shippers; they confer no such powers to maintain suits, and subject him to no such liabilities. The policy and spirit of the British and American commercial systems tend to restrain the agency and control of subordinates to precise limits in settlements or contests with respect to property and obligations; wherever it can be done, they bring the owners of the property, and the principals in the obligations, to confront one another. In my opinion, this decree introduces a new principle into the American commercial system, and that this interpolation adds to the jurisdiction of the judiciary department of this Government. This is done by judicial authority. In my opinion, the Constitution does not give such a power to this court. I therefore dissent from the decree.

Having carefully examined the foregoing opinion of Mr. Justice CAMPBELL, after it was in print, I am satisfied with its correctness, and concur therein.

J. CATRON.