
    Nelson v. Belmont.
    
      General Average.
    
    The liability of a cargo to contribute in general average, is at an end, when it has been completely separated from the ship, so as to leave no community of interest between them. But if the adventure be not abandoned, and a portion of the cargo, though landed,, and separated from the rest, is still under the control of the master, and liable to be again taken on board, in order to a continuance of the voyage, tho community of interest subsists, and it is liable to contribute in general average towards whatever is done for the preservation of the vessel and the rest of the cargo; and this, notwithstanding the voyage is subsequently abandoned, and the ship and cargo sold in the port of distress.
    Unearned freight is not to be included in estimating a general average loss.
    Nelson v. Belmont, 5 Duer 310, affirmed.
    Appeal from the final judgment of the Superior Court of the city of New York, entered upon a verdict subject to the opinion of the court at general term. (Reported below, 5 Duer 310.)
    ""^bis was an action by William Nelson and others against August Belmont, as the owner of certain specie, shipped on board the ship Galena, on a voyage from New Orleans for Havre, to recover a general average loss.
    The ship Galena sailed from New Orleans, bound for Havre, in July 1853'; the cargo consisted chiefly of cotton, with a few thousand stoves, and eight kegs of specie, six of which were shipped by the appellant. On the 23d of July, the ship was struck by lightning, which passed down the mizzenmast, through the cabin, and into thebetween-decks; and in five minutes thereafter the ship was discovered tó be on fire. Holes were immediately cut in the upper deck, around the mizzenmast, and water poured down into the between-decks, where the cargo was stowed, but without effect; the holes were then stopped up, in order to stifle the fire, which, however, still continued. The Danish brig, Anna Margaretta, being in sight, signals of distress were made, and the mate was sent on board the brig, which was requested to keep company during the night; the passengers and their baggage were also transferred to her. Further efforts were made during the night to extinguish the fire, which, however, appeared to gain; and at day-light, the master concluded that he could not put it out, and must make a port of distress. An arrangement was then made with the master of the Danish brig, to accompany the Galena into Charleston, and to take the specie on board his vessel, to which it xvas accordingly transferred for safety. On the arrival of the vessels at Charleston, water was poured into the Galena by the city fire-engines, and she sunk to the upper deck. After laying full of water for txvent}four hours, she xvas pumped out, and the cargo discharged. The water poured in before her arrival might have touched 50 to 75 bales of the cotton; but that throxvn in at Charleston covered the whole of it, and damaged the entire cargo. Whilst in the harbor of Charleston, and before reaching the xvharf, the master of the Galena got the specie from the Danish vessel, and deposited it in bank. On discovering the extent of the damage to his ship and cargo, the master determined to abandon the voyage; he sold the cargo there, and remitted the funds. Some slight repairs were made to the ship, by her carpenter; when she proceeded to Nexv York, xvhere more extensive repairs were made.
    An adjustment of general average took place at New York, by which the specie owned by the appellant xvas charged with the sum of $13,884, as its proportion of the loss; and to recover this sum the present action xvas brought. *There xvas a verdict for the plaintiffs, subject to the opinion of the court at general term, xvhere it was determined that the specie xvas liable to contribute in general average; and judgment having been entered on the verdict, the defendant took this appeal.
    
      Charles O’Conor, for the appellant.
    
      William M. Evarts, for the respondent.
   Selden, J.

No objection was made by the counsel, upon the argument, to the principles upon which the general average was adjusted in this case, provided the specie was liable to contribute to such average for the expenses and loss which occured after it was placed on board the Danish brig. Whether it was so liable, therefore, is the only question to be considered.

General average losses arise, either from voluntary sacrifices made, or extraordinary expenses incurred, for the joint benefit of the ship and cargo; the property which contributes is that which is saved from the peril, together with that which is sacrificed for the preservation of the rest. The loss, however, does not, in all cases, fall upon the whole of this property. Arnould says—■“ All which is ultimately saved out of the whole adventure, i. e., ship, freight and cargo, contributes to make good the general average loss, provided it had been actually at risk, at the time such loss was incurred; but not otherwise, because, if not at risk at the time of the loss, it was not saved thereby.” (2 Arnould on Ins., Perkins ed. § 338.) Phillips uses similar language : he says—“ Goods, or any interest, are not liable to contribute for any general average, or expenses incurred subsequently to their ceasing to be at risk.” (2 Phillips on Ins. 3d ed. § 1407.) The defendant's position here is, that the specie, when once placed on board the Danish brig, being entirely secure from the peril which threatened the Galena and her cargo, was, under the rule laid down by Arnould and Phillips, exempted from contribution for subsequent losses.

In determining this question, it will be to recur to the principle upon which general average is based. That ^principle is, that where several persons are engaged in a joint enterprise, whatever is necessarily done for the common benefit, ought to be done at the common expense. It is of the essence of this principle, that it looks upon the enterprise as a whole—as an entirety. It is true, that in apportioning the loss, regard is had to the interest of the respective parties; but in other respects, no separate interest is recognised. Until, therefore, some portion of the property has been separated from the rest, so as no longer to have any interest in common with it, every risk which affects the enterprise as a whole, must be regarded as effecting each portion of the property engaged.

Such a separation may, and frequently does occur, in the course of a voyage. For instance, in case of a jettison, the goods jettisoned do not contribute for any damage afterwards done to the residue of the cargo. If goods forming a portion of the cargo are sold for the necessities of the ship, or are delivered to the owner or consignee, either before or after the arrival of the vessel at its port of destination, and before the occurrence of a general average loss, they do not contribute. So,, a separation may occur, through the withdrawal, by the owner, of a portion of the goods, before the termination of the voyage. This every owner has, in general, a right to do, at any time, on paying the freight for the entire voyage, and the goods thus withdrawn are exempt from contribution for any subsequent loss, upon the principle that it is the goods at risk only which contribute.

If however, the case of Bevan v. The United States Bank (4 Whart. 301), was correctly decided, this principle of exemption arising from the separation of a part of the cargo from the rest, is subject to a very important qualification. The vessel, in that case, was on a voyage from New Orleans to Philadelphia, and became stranded and ice-bound in Delaware Bay, but a' short distance from her port of delivery; she had on board $90,000 belonging to the defendants; it was necessary to discharge her cargo; and the specie was first removed, being taken on sleds to the shore, and delivered the next day to the defendants. Two months afterwards, the vessel reached Philadelsafetyi with the residue of her cargo, which had been discharged into lighters and afterwards re-shipped. During this interval, a number of additional charges had been incurred for the safety of the vessel and the remainder of the cargo. The action was brought to recover the defendants’ proportion of the general average loss; and the question was, whether they were liable for the expenses which had been incurred, after the specie had been delivered to them at Phiadelphia. The court held that they were.

This case can only be reconciled with the general doctrine, in regard to the effect of the entire separation of one ■portion of the cargo from the rest, and from all the perils of the voyage, by adopting the distinction upon which a careful examination of the case will show the decision to rest, viz., that although the delivery of a part of the cargo to its owner, at any time before a peril has occurred, will discharge it from its liability to contribute for a subsequent loss; yet, that after such occurrence, and after measures to avert the peril, involving expense, have been commenced, there can be no such separation of any portion of the property from the residue, as will exempt it from contribution for the entire loss.

Upon what is this distinction based? It is clear, that general average does not rest upon any implied agreement among the several owners, that their property shall abide the fate of the joint adventure, hut upon the simple fact of a community of interest at the time of the loss. Tho whole doctrine that it is the property at risk only which contributes, is founded upon this theory. But the distinction referred to assumes that when a peril is once encountered, and some expense has been incurred to avert it, an obligation is imposed upon the various owners to abide tho result of all the efforts and sacrifices required to avert that single peril, however remote may bo its termination.

T3ii s obligation, if it exists, must have a foundation. It is rested by the court in that case mainly upon two grounds. The first is, that a rule which would exempt property which hid escipsd from the peril from, liability to contribute to the expense incurred afterwards, would bo unjust; because it *“ would subject those whoso goods are sived and delivered last, to those payment of a portion of the expenses incurred in saving those of the first, without requiring the first to pay any part of the expenses incurred in saving the goods of the last,’'and would thus ‘‘operate partially and unequally, without imposing the obligation of reciprocity, which seems to lie at the foundation of generad average.”

Is this reasoning sound? The owner of the goods saved last contributes to the expense of saving the first, because that expense was incurred for his own beneii, and to save his own goods in common with those previously saved; but if the owner of goods once saved from the peril, pays for expenses or losses accruing afterwards, he pays for that from which he could not by possibility derive any benefit. It will be found difficult, I think, to. sustain the doctrine upon this idea of reciprocity.

The second ground taken by the court in support of its decision, is, that the case is analogous to that of a partnership. Kennedy, J., in giving the opinion of the coui-t> says—“Now, in the case before ns, it lira t be admitted, that the property of the defendants, and that of the plaintiffs, formed, as it were, a common stoclc of a sea-venture, held by them in their several proportions as partners, and that all were alike exposed to the same common danger from which the stock belonging to the defendants was saved, and a proportionable part of the expense incurred by saving it paid by the plaintiffs: and why shall the latter not receive from the former a proportionable part of the expense incurred in saving their portion of the stock from the same common danger?”

The analogy here suggested is more apparent than real. Partners are bound together by a compact which they are not at liberty to violate; here there is no such mutual bond; the parties are brought together without preconcert or agreement of any kind. While the property remains connected, the owners have a common interest in the enterprise; but the tie which connects them, being purely accidental, and not conventional, maybe broken at . will, at any time, by either of the parties.

*It is difficult to reconcile the decision referred to with that in the case of Bedford Commercial Insurance Company v. Parker (2 Pick. 1). In that case, the ship, bound to New Bedford, struck on a reef of rocks, about nine miles from the town, and remained there in a situation of great peril. Her cargo was iron; wlple she lay upon the rocks, the defendants, who owned the iron, sent men on board and removed and saved a considerable portion of the cargo. The plaintiffs, who were the insurers, commenced their efforts to get the ship off, before this iron was removed, but without success;' they afterwards contracted with an individual to get the vessel off and take her to the town for a specified sum, which he did, she still having 155 tons of the iron cri board. The action was brought to recover the defendants’ proportion of this expense, and the question was, whether any portion of the cargo, and if any, what portion should contribute.

If the doctrine of the case just considered is sound, if the owners of the ship and cargo are to be regarded as partners engaged in a common enterprise, or if a just reciprocity requires that the owners of the property first saved should bear a portion of the expenses incurred in saving that which remains at a risk, then, of course, all the iron in this case, as well that previously saved, as that on board when the vessel was got off, should have contributed. But the court held that only the 155 tons on board when the expense was incurred was liable. Parker, 0. J., said—11 The ship was suffered to be Avrecked; the owners of the cargo had a right to save as much of it as they could, and ought not to be held to pay, on account of Avhat Avas saved, any part of the expenses Avhich subsequently occurred.”

This decision, Avhich has been uniformly approved, appears to me to be in strict accordance with the principles upon which the doctrine of general average rests. My conclusion, therefore, is, notAvithstanding the case of Bevan v. The United States Bank, that if the oAvner of any portion of the cargo, CAren after a peril has occurred, and after a series of measures to avert it have been commenced, can succeed in so separating his own ^property from the rest that is no longer in any sense at risk, he cannot be held liable to contribute to the exp enses sub se quently meurred.

But in order rightly to apply this rule, it is necessary to ascertain the full scope of the term “ at risk.” Physical destruction, or direct physical injury to the ship or cargo itself, is not the only risk to Avhich property so situated is exposed. Its value depends, or at least is supposed to depend, in some degree, upon the successful prosecution of the voyage; Avhatever threatens .the voyage, therefore, is a peril to the entire property; until that is broken up, unless the property claimed to be exempt is not only separated from the rest, and put in a place of present safety, but entirely disconnected Avith the enterprise, it must be regarded as still at risk, and liable to contribute. If the voyage is not abandoned, and the property, although separated from the rest and removed from the ship, is still under the control of the master, and liable to be taken again on board, for the purpose of being carried to its destined port, the relations of the several owners are in no respect changed. The common interest remains; and whatever is done for the protection of that common interest, must be done at the common expense.

There are two English cases bearing directly upon this question, to which it may be well to refer. The first is that of Job v. Langton (6 Ellis & Black. 779). The bark Snowdon, with a general cargo, sailed from Liverpool for St. Johns, Newfoundland, on the 20th March 1855, and ran ashore, the same night, on the coast of Ireland. It became necessary to discharge the whole of the cargo, in order to get the vessel off. After the cargo was discharged, and placed in store at Dublin, she was gotten off, at considerable cost, with the aid of a 'steam-tug, and by cutting a channel for the purpose; the steam-tug did no work at the ship,until after the cargo was landed; the vessel was towed to Liverpool to be repaired. In order not to lose a market at St. Johns, the cargo was forwarded from Dublin by another vessel; Irat it was stipulated, that the case should be decided, as if the Snowdon, after being repaired, had herself carried on the cargo. The (l^ies^:aon :*n casa was’ Aether *tho cargo should contribute to the expenses of getting the vessel of,' as a general average.

Nov/, it is plain, that if the position we have assumed is correct, viz., that so long as the voyage is kept on foot, and is not abandoned, whatever threatens to break it up, the whole cargo is to be considered at risk, whether in a situation to be physically injured by the peril or not, then, of course, the expenses of getting the Snowdon off, and towing her to Liverpool, must be regarded as chargeable to general average. The case was put upon this ground by Mr. Blackburn, who argued in support of the general average claim; he said—“ The argument on the other side assumes, that in order to constitute general average, the whole must be saved from physical destruction ; but it is enough, if it be a voluntary extraordinary sacrifice, to save the adventure.” He admitted that if the adventure bo abandoned, “ the expense! incurred after the abandonment, must be incurred for the articles separately, and cannot be brought into general average.”

But the court held, that the cargo was exempt from contribution for the expenses of getting the vessel off. It was conceded by Lord Campbell, in giving his opinion, that the fact that the stranding was unavoidable, and not voluntary, did not affect the question; he said—•“ Although the stranding was fortuitous, all the expenses incurred from the misadventure, till all the cargo had been discharged, confessedly constituted general average.” Ho, nevertheless, held, that after the cargo was discharged and put in a place of safety, the subsequent expenses could not be said to be incurred for the joint benefit of the ship and cargo, inasmuch as the cargo was no longer at risk; thus rejecting the doctrine that a peril to the voyage is necessarily a peril to all the property concerned in it.

He was, evidently, I think, led to adopt this conclusion, by the circumstance that the cargo was actually carried to its destination by another ship. For, although he says, “ of course, we do not, contrary to the intention of the parties, attach any importance to the fact that the cargo was forwarded in another vessel,” he nevertheless adds— “ but in thee-,absence of any ^statement to the contrary, we might infer (as the fact turned out to be) that there would be no difficulty in forwarding the cargo by another vessel.” This last sentence furnishes the key to the decision for no one can suppose that if the cargo had in reality been taken again on board the Snowdon, and carried to St. Johns, and the voyage had thus been actually saved to both ship and cargo, the court would have .refused to allow the expenses of getting the ship off, on the ground that the cargo might have boon forwarded by some other vessel.

What the court would have done in that case, may, I think, be gathered from the subsequent case of Moran v. Jones (7 Ellis & Black. 523). The material facts in this case were, that the ship Tribune, chartered for a voyage to Peru and back, sailed from Liverpool, on the 7th of Judy 1856, and having encountered a storm, was, on the same day, forced to anchor near the entrance of that port. To relieve her, the foremast was cut away, but she drove ashore and became fixed upon the bank. On the 9th, assistance was procured from Liverpool, and the furniture of the ship, together with the goods on board, were sent in lighters to Liverpool; on the 14th, a stream anchor was carried out. The ship was afterwards scuttled, and a portion of the ballast was thrown overboard, when, being-kept free by pumping, she floated. She was then taken in tow by steamers, and taken back to Liverpool, where she was repaired; after which the goods were re-shipped, and she again set sail upon her voyage. The question in the case was, whether the owner of the goods was liable to contribute, by way of general average, to the expenses incurred in getting the ship off, after the goods were safely landed and warehoused.

The court was now called upon to decide a case where the goods were actually re-shipped and forwarded by the same vessel. Here, as in the previous case of Job v. Langton, the goods were on shore and safely stored, and hence the expenses in question» could not have been incurred, for their benefit-, except in view of their interest in the ultimate prosecution of the voyage. Mr. Blackburn, who was engaged in this, as well as the previous case, argued here in opposition to the claim of "“"general average; he pressed upon the court its decisión in the former case, that expenses incurred to save the adventure were not to be considered as incurred for the benefit of goods previously taken on shore, although the voyage had not been abandoned; he said—“ Here the goods were no longer endangered, though the adventure was. * * The adventure was as much in peril in Job v. Langton as here.” But the court, notwithstanding this argument, held the goods liable, to contribute, putting its decision, however, not upon the ground that the saving of the voyage was to be deemed a benefit to the goods, as well as the ship, but upon the ground that the getting the ship off and towing her to Liverpool was a continuous operation, commenced before the goods wore removed, and completed afterwards; and that this distinguished the case from that of Job v. Langton; in regard to which Lord Campbell says—“In Job v. Langton we considered that the goods had been saved by a distinct and completed operation, and that, afterwards, a- neto operation began, which could not bo properly distinguished from the repairs done to the ship to enable her to pursue her voyage. The steam-tug did no work at the ship, and does not appear to have been engaged, until after the cargo was landed.”

Now, conceding this to be a valid distinction, it is difficult to find any foundation for it in the facts of the case. The goods were removed from the ship, and sent to Liverpool on the 9th of July; it does not appear that any effort was made to get the ship off, until the 14th; the stream anchor was then carried out; the scuttling, the pumping, and the employment of the steamers to tow her to Liverpool, were all done afterwards. How, then, it can be said, that the measures resorted to for the purpose of getting the vessel off constituted a “new operation,” in the case of Job v. Langton, and not in this, it is not easy to perceive. Lord Campbell refers to the case of Bevan v. The United States Bank (supra) as supporting the distinction he takes; that case, however, was not put upon any such ground, but, as we' have seen, partly upon a principle of reciprocal obligation, and partly upon a sup-

posed analogy to a partnership. * The case of Moran v. Jones was, I think, rightly decided; but I cannot resist the conclusion that the idea of a continuous operation, commenced before and completed after the removal of the goods, was resorted to, in order to reconcile the decision with that in the previous case of Job v. Langton.

These two English cases have been referred to thus particularly, because they involved a principle of some commercial importance, and because they lie - directly in our path, in coming to a conclusion in the present case. But whatever may be the true interpretation of these cases, I nevertheless hold, that although every owner of any portion of a cargo may, if he can, separate his property from the rest, and from the whole adventure, at any time, and thus avoid contributing to a subsequent loss; yet, that such separation must be complete, and such as to leave no community of interest remaining. If the enterprise is not abandoned, and the property, although separated from the rest, is still under the control of the master of the vessel, and liable to be taken again on board, for the purpose of prosecuting the voyage, the relations of the several owners are in no respect changed; the common interest remains; and whatever is done for the protection of that common interest should be done at the common expense.

The result of these principles, when applied to the present case, is plain. It turns entirely upon the nature and object of the separation of the specie from the ship Galena, and from the residue of the cargo, when it was placed on board of the Danish brig. I entertain no doubt, that such a severance as would have exempted it from all liability to contribute to" the subsequent expenses might have been effected by the master of the vessel, in the same manner as by the owner himself, had he been present. The master is the agent and representative oí each of the owners in respect to their several shares of the property under his charge, and has the same right which the owners themselves would have to take measures for its preservation. If, therefore, the master of the Galena had put the specie on board the brig, not in any event to be returned to him, but to *be taken by J the brig to its OAvn port of destination, and the latter had then been suffered to pursue its course, the specie would clearly not have been subject to contribution for any subsequent expenditures to save the Galena. And notwithstanding the brig was employed to attend the Galena to Charleston, if it had been distinctly understood between the two commanders, that the specie was committed entirely to the custody of the Danish master, and was in no event to be restored to the care of the master of the Galena, it would then also have been exempt.

But the facts do not warrant this ■ assumption. The case states that “ the specie was put on board the brig, because it was safer there, as in case the fire broke out, it might be too late to transfer it from the ship.” The brig was to accompany the Galena to Charleston, and there is nothing from which it can be inferred, that it was the intention of the master of the latter to relinquish his control of the specie. The fact that he reclaimed and took it from the brig, as soon as he arrived in Charleston, tends strongly to the opposite inference. It never ceased, therefore, up to that time, to constitute a part of the cargo of the Galena; and if the fire had been previously extinguished, and the voyage resumed, it would, of course, have been again taken on board by and carried forward by her. The case states, that while at Charleston, the master of the Galena determined to abandon the voyage. It follows, from what has been said, that up to that time, the specie remained liable to contribute to the general average loss; and so the superior court held.

The appeal taken by the plaintiffs, on the ground that freight should have been included in estimating the general average loss, cannot I think, be sustained. The judgment of the superior court should be affirmed.

.Justices Denio, Davies, Weight, Bacon and Welles, concurred in this opinion.

Comstock, C. J.

(Dissenting.)—When the vessel was set on fire by-lightning, the lives of the passengers and the safety of *the ship and entire cargo were endangered. The employment of the Danish vessel, as convoy, to attend the Galena into the port of Charleston, was, therefore, a measure demanded by the common peril. The expense of that employment was consequently a loss to be borne by- the owners of the ship and the various owners of the cargo, according to the principles of general average. Very plainly, the specie, if it had nót been removed, would be bound to contribute to this expense equally with the residue of the cargo, and quite as plainly, its removal to the Danish vessel, which was a place of safety, did not relieve it from that liability.

But when the specie was once removed, it became separated from the common peril, and the question is, whether it was liable for losses and expenditures after-wards incurred in saving the ship, and cargo which remained on board. The loss and expense were mainly incurred in the port of Charleston, where the vessel was filled with water in order to extinguish the fire; by that proceeding the ship and the cotton on board sustained a very serious damage; the specie had been landed from the Danish brig, and was not involved in the peril.

All the authorities agree in the statement of the general rule on this subject. That rule is, that where expenses are incurred or sacrifices made voluntarily for the safety of ship, freight and cargo, a general average will take place, provided the purpose of the sacrifice or exnenee is accomplished. (3 Kent 232; 2 Arnould on Ins. 876, 877; Phillips on Ins. 331, 334.) This doctrine is founded on a plain principle of natural equity, but the terms in which it is universally stated certainly do not include a case like the present one. Beyond the employment of the Danish vessel, no act was done, nor expense incurred, having anything to do with the safety of the specie; the ship and the remaining cargo were saved by the subsequent proceedings, and according to natural justice they should bear the losses incurred.

It is claimed, however, that where a peril occurs, no part of the cargo can be withdrawn or separated from it, so as to be relieved from contribution for all the sacrifices made and "“‘expenses incurred at any time before the peril is entirely past. The owner of the ship and all the owners of a cargo are bound, it is said, by a compact or agreement with each other, which prevents any one of them from relieving his own property from the common danger, so as to exempt it from the losses which may afterwards happen to others, in saving theirs from the same danger. But there is no such compact or agreement; there is no agreement at all on the subject. The principles of justice, on which general average is founded, may lead to such a result in many circumstances. The peril may be of such a nature that the only chance of" safety for both ship and cargo is the transfer of the 1 rtter to lighters in the vicinity of a harbor, or to a convoy at sóa. The safety of different portions of the goods and of the vessel may thus be insured at different points of time, during the peril. But the master, representing all interests, must be impartial to all; he cannot, in such a case, exempt the property of one owner from entire contribution, by selecting it from the mass and placing it first in a situation of safety. (Bevan v. The United States Bank, 4 Whart. 301, 308.) The aggregate expense of providing for the safety of all interests must be borne according to the value of each; a different doctrine would lead to a conflict of rights and interests, and give to the master the arbitrary power of protecting one at the expense of another.

But suppose a ship takes fire, having -on board a cargo which can only be saved by extinguishing the flames as quickly as possible; there is, however, a box of jewelry or a quantity of gold dust, of ten times greater value than the cotton or lumber with which the vessel is loaded; the heavy freight must abide the fate of the vessel, because there is no other means of saving it; the jewelry or the gold may be placed out of the danger, by transfer ring it to another vessel in sight. The duty of the master in such a case, is plainly to hail the ship and make the transfer. In such a case, there is not, in a just-sense, á community of peril; the property incapable of removal is subject to whatever of danger is occasioned by the fire; the gold is not involved in that peril, because it can be put - in safety by removal. * In such a case must there be a community of loss? It seems to me not. If the assistance of the friendly vessel is required only to take care of the value transferred to it, the charge in the nature of salvage should rest upon that value alone, while, on the other hand, there should be no contribution in favor of the vessel in distress and her remaining cargo, for losses wholly unconnected with the safety of the article transferred. The owner of the gold may be himself on board; the proximityof another vessel is to him absolute exemption from the peril to his property, while to others it only offers the certainty of saving life. The circumstances, all considered, do not involve his interest in the danger; why then should they involve him in the losses incurred in averting the danger? If the owner, being present, could thus separate himself from the peril by seizing a means of safety peculiar to his own interest, the same effect must be given to the act of the master who represents him.

The question can be placed in á still stronger light. Suppose a vessel, having reached her port of destination, takes fire before the landing of the cargo; the heavy freights are incapable of immediate removal, and in order to save it as well as the vessel, the fire must be extinguished; but the specie on board can be landed, and thus separated from the peril; it may well happen, indeed that specie is the only freight. In such an exigency, may not the consignee extricate his property from the impending danger, without liability to contribute for the loss or damage of the ship? The doctrine of general average requires contribution for sacrifices made to avert a common danger; where there is no community of peril, there is none in the loss. In the case supposed, it may be necessary to scuttle the ship or submerge it with water, by the aid of fire-engines; great damage may thus thus ensue to the freights which cannot begmoved, if there be any such, and to the vessel itself. The interests which are protected by the measures taken, and those only, should, on principles of equity, bear the losses.

In the present case, the fire began at sea, but it was extinguished in the port of Charleston, by the employment'of fire * companies, which filled the vessel with water.

The sacrifices and expenditures were: 1. The compensation paid to the fire companies: 2. The injury to the vessel: 3. The injury to the cotton on board, which could not be separated from the danger. But the specie was landed and the measures taken to protect the ship and cotton had nothing to do Avitli its safety. It may be of no special importance, that the specie had been prev'ously transferred to the Danish brig; the brig Avas in the service of the vessel exposed to the peril; but both vessels Avere in port and the specie could be landed from either. Charleston was not, it is true, the port of destination, but it was the port of necessity, where the voyage was broken up and abandoned. The owners of the specie were entitled to receive it at that place, without contribution for sacrifices and expenses to which the shin and the cotton were exposed, but from which their property was exempt. I am of opinion, therefore, that the judgment should be reversed and a new trial granted.

Clebke, J., also dissented.

Judgment affirmed. 
      
       In McAndrews v. Thatcher, 3 Wall. 373, Mr. Justice Clifford says, that “if the conclusion can be sustained at all, it must be upon the ground, that the whole adventure was saved by a continuous series of measures, prosecuted by the master as the agent of all concerned, which commenced with the saving of the specie, and ended with the saving of the vessel and the residue of the cargo.”
     
      
       Unearned freight neither contributes, nor is contributed for, in general average. Lee v. Grinnel, 5 Duer 400. See Columbian Insurance Co. v. Ashby, 13 Pet. 331, 344. Gray v. Waln, 2 S & R 229.
     
      
       See Delano v. The Cargo of the Gallatin, 1 Woods 642. The Congress, 1 Biss. 42.
     
      
       Since tlie decision of this case, another, involving the same principle, has been before the supreme court of the United States. The ship Bacliel was stranded near her port of destination, and the underwriters upon her cargo sent an agent to assist the master in getting her off; the master and agent made the proper efforts to do so, for two days; hnt being unsuccessful, and the water gaining on the ship, they began to discharge the cargo into lighters, still continuing their efforts for the preservation of the vessel. The discharge of the cargo occupied four days ; by which time the whole of it was taken off, and, with the exception of a very small fraction in the lower hold, and not discovered, was taken to the ship's agents, who subsequently delivered it to the consignees, they giving the usual average bond. By the time the cargo was thus all gotten off, the vessel, not assisted by being lightened, was settling in the sand, with the tide ebbing and flowing through her as sho lay. The agent, considering her case hopeless, and the consignees of the ship having refused to authorize him to incur any further expense, now went away. On the next morning, and while the master was yet on board, the underwriters on the vessel sent their agent, who went to work to float the ship. The crew, however, refused to do further duty; the agent got ne,w hands, and the crew left the ship; they were soon followed by the master, who left the vessel, four days after the new agent had been in charge. After six'weeks’labor and an expenditure of money, somewhat exceeding her value when saved, the new agent succeeded in floating the ship ; and the remnants of the cargo, in a damaged state, were delivered to its consignees. In a suit by the owners of the ship against the consignees of the cargo, for contribution in general average, for the expenses incurred after the master went away, it was held, that the case was not one for contribution; there having been, as the court considered, no community of interest remaining between the ship and cargo, after the master, in the circumstances of the case, had left the ship. McAndrews v. Thatcher, 3 Wall. 347.
     