
    BROWN’S CASE.
    John W. Brown’s Administrator v. The United States.
    
      On the Proofs.
    
    
      A cargo of government stores is shipped on a schooner, and a hill of lading in the usual form given by the master. On the voyage, to prevent total loss of vessel and cargo, she is rim ashore. There is an adjustment of the general average and a proportion is charged to the cargo belonging to the government. The schooner afterwards resumes her voyage. >
    I. Ib is well settled that where a vessel is voluntarily run ashore to prevent a total loss of vessel and cargo, hut is afterward recovered so as to he able to perform her voyage, the loss resulting from, the stranding is to he made good hy general average contrihution.
    
      II. It is well settled that the rule of general average contribution applies to the government as well as to individuals.
    III. An action will lie against the government to recover such proportion of a general average adjustment as it ought in equity and justice to contribute for freight shipped on a merchant vessel.
    
      The Reporters’ statement of tbe case: •
    Tbe. following are tbe facts of tbis case as found by tbe court:
    I. In tbe month of March, 1856, tbe schooner Major Donaldson sailed from Baltimore with a cargo of government stores consigned to tbe United States quartermaster at Corpus Obristi, Tex. Nothing eventful occurred on tbe voyage until about tbe middle of April, 1856, tbe vessel-arrived off tbe bar of Corpus Cbristi and took a pilot on board.
    II. Tbe water on tbe bar being very low, a portion of tbe cargo was taken out in lighters; and after waiting for several days, under tbe advice and charge of tbe pilot, tbe vessel was taken over tbe bar, receiving some slight injuries.
    III. Tbe bar was shaped somewhat like tbe letter S; and after crossing, tbe vessel going before tbe wind, it was necessary to luff up to avoid coming onto it again. At this moment tbe wind died out and it became necessary to let go tbe anchors. It was found impossible to give the anchors any chain, and they would not bold. Tbe vessel soon began to thump, striking on tbe bottom; and as tbe only alternative to prevent tbe loss of both vessel and cargo, as soon as a breeze sprang up all sail was made, and tbe vessel was driven as far up on tbe beach as possible, where she could be made to lie easy and save tbe cargo.
    IV. While tbe vessel lay on tbe beach tbe balance of tbe cargo was taken out for tbe purpose of saving it and enabling tbe vessel to be hauled off. Tbe expenses attending tbis were, in part, paid by tbe United States, and those payments were charged to tbe claimant, and afterwards deducted from tbe freight.
    V. Tbe vessel lay on tbe beach a week or ten days, and was. finally got off at considerable expense and greatly damaged. She was taken to Galveston, Tex. where some temporary repairs were made, and then to Baltimore, where she was repaired, and where an adjustment was made of tbe whole matter — tbe loss chargeable to general average being $1,080, of which - the-■cargo, belonging' to tbe United States, is chargeable with. $821. ■93.
    VI. The Secretary of the Treasury, when applied to for payment, thought the claim just, and, in substance, admitted the facts to be as we have stated them, but declined to allow it until it had received the approval of the War Department. The War Department refused to allow it, because one of its officers reported that the, government had expended $650.36 in saving vessel and cargo. At that time there was no evidence in that ■department that the freight had not been settled. When that was done, this sum was deducted from the freight. The claim was afterwards renewed, and again rejected.
    
      Mr. Joseph II. Bradley and Mr. C.1?. Peclt for the claimant:
    The adjustment is prima facie evidence of what it contains. (1 Greenl. Ed., § 212.) The evidence of Speed shows that all the charges contained in the adjustment are for expenses incurred, which are the subject of general average. (Ab. Sh., § 334, 335, (383, Story ed.); Desty Dig., Ship & Adm., §§ 290, 291, 294, 297, 298, 299, 300, 301.)
    The United States is liable to contribute to general average losses. (2 Arn. Ins., 923; 3 Kent’s Com., 240 (5th ed.); 2 Phill. Ins., 161; The United States v. Wilder, 3 Sumn., 308; Wirt’s ■Opin., Op. Attys. G-en., vol. 5, 757.)
    The action of assumpsit lies upon the implied contract to •contribute towards general average; therefore, this court has .jurisdiction. (Oh. PL, vol. 1,88, and numerous authorities there cited; Sanders PI. & Ev., vol. 1, 170; Foioler v. Rathbones, 12 Wall., 103.)
    Several forms of declaration in assumpsit for this cause of action are given in the 2d vol. of Ghitty on Pleading, pp. 216, 221.
    The adjustment is the proper mode of determining the liability ■of the parties. (1 Pars. Mar. L., 331-333; Strong v. Firemen's Ins. Co., 11 Johns., 323; Simonds v. White, 2 B. & C., 806; Peters v. Warren Ins. Co., 1 Story, 463; Deprn v. Ocean Ins. Co., 5 Cowen., 63; Boring v. Neptune Ins. Co., 20 Pick., 411; Thornton v. U. S. Ins. Co., 3 Fairf., 153; Beiois v. Williams, 1 Hall, 430; Phil. Ins., vol. 2, 182; Kent’s Com., vol. 3, 243, 244; 3 Sumn., 389, 393; 13 Me., 357; 18 Martin, 629.)
    
      
      u It is well settled in tbe courts of tbe United States tbat where a vessel and cargo are in common peril, and tbe master, for tbe purpose of avoiding tbe greater peril, selects another and less peril, be can recover compensation in general average from tbe cargo thereby saved. Thus, when a vessel is voluntarily stranded with a view to promote tbe general safety, tbe damage to tbe vessel is a general average loss.” {O'1 Conner v. The Ocean Star, 1 Holmes, 248; Mutual Safety Ins. Co. v. Cargo of the Brig George, Olcott’s Adm., 89; Grayy. Wain, 2 S. & B.; Casey. Richards, ib., 237; Lewis v: Williams, 1 Hall, 430; Heyliger v. Firemen’s Ins. Go., 11 Johns., 85; Rea v. Cutler, 1 Sprague, 135 ; Bihoorth v. McKelvey, 30 Mo., 149; Meritheu v. Sampson, 4 Allen, 192 ; Star of Hope, 9 Wall., 229; Fowler v. Rathhones, 12 Wall., 103.)
    
      Mr. George G. Wing (with Whom was tbe Assistant Attorney-General) for tbe defendants:
    Tbe case presented is not one for a general average contribution. Tbe loss occurred through tbe fault of tbe master in entering tbe port of destination too heavily laden,
    
      u —When for tbe purpose of running tbe ship into her port ■of destination it is necessary to lighten her, tbe master who knew, or ought to have known, tbe capacity of tbe port to which be was bound, is in fault for having too heavily laden her. It is, therefore, in this case tbe fault of tbe master, and, in consequence, not general average.” (Stevens on Average, 76; Flanders Mar. Law, 237.)
    Tbe loss was caused by tbe master’s fault and negligence, in tbat be took tbe vessel and cargo, withoutnecessity or compulsion, into an harbor known to be perilous. He should have waited until there was more water.
    Tbe doctrine from tbe text-writers (supra) is applied to vessels driven into tbe port of destination by tbe enemy. Much stronger applicationbas it to a vessel — as in this case — approaching its port at which exist tbe custom and means of unloading outside.
    Suppose tbe harbor known to be one not difficult of navigation, but tbe vessel arrives at tbe outer port at night or in a dense fog. It might be tbat she could enter without collision or other accident, but any attempt would surely be with this danger; and if, nevertheless, the master does not wait until light comes or the fog clears, but enters, and accident results, the owners are responsible, though he have a pilot. The master was in fault in allowing the vessel to be moved at all. (See The Borussa, Swab, 95 ; The Gondolier, 3 Hogg.)
    The loss would not have happened without that the master had wrongfully neglected to unload at the customary place. This was such misconduct as would relieve the assurers and indemnify cargo for any loss occurring during the operation of the wrongful act. {Bams v. Garnett, 6 Bing., 724; Thompson v. Hopper, 1 E. & B., 948.)
    Such navigation was additional to that contemplated at the time of shipment, and in violation of the master’s duty. It operated, if disaster occurred by reason of shallow water, as a deviation in insurance to cast the entire loss upon the shipowner for whose profit it was undertaken. (Arn. Ins., Lon. ed., 415; 1 Pass. Ship, 171; The Sultana v. Chapman, 5 Wis., 454.)
    The only peril she was in — as the master testifies — was of being broken by beating against the sand bottom of the ordinary channel (cross-interrogatory 24, p. 13), and the fact that he did not proceed when the wind came, but stranded as the only means of extricating her, is conclusive that she was drawing too much water to make the remaining distance.
    Otherwise the stranding was unnecessary, and caused by the unskillful management or gross recklessness of those in charge; for if the vessel would have been freed by going on to her destination, as she had received no serious damage, the stranding would have been against.duty, unnecessary, and without the purpose of saving.
    If liability exists at all, there is no evidence which, under the rules of law, is competent and sufficient to establish the amount claimed, or to enable the court to fix any amount.
    No officer of the government is authorized to find the facts of a demand which he has no lawful power to adjust and settle, so as to dispense with the necessity of independent proof, when before the proper adjudicating officer or tribunal.
    “The official reports and correspondence of public officers made or carried on in the line of their duty we have always admitted as evidence bearing the moral sanction of an oath. But it is not the business of a public officer to make admissions. against tbe government, nor can snob admissions bind tbe ed-fendants.” (Waters v. United States, 4 O. Cls. B., 39.)
    There was no adjustment in tbis case. Previous assent is tbe requisite of an adjustment, as appears in each adjudged case. (Arnauld, 183,997.) Cases where adjustments have been urged as binding, and have been given force, have been when tbe statement of liability claimed bad either been accepted or indorsed as correct by defendant, by which tbe character of a contractor admission was given it; or when tbe adjustment having been rightly and legally made in a foreign port was thus in tbe nature of a judgment.
    Tbe extent to which it is then conclusive is declared by Lord Ellenborough, in Herbert v. Champion (1 Camp., 137).
    Here defendant bad accepted by indorsement tbe broker’s statement of general average.
    Even when there bad been an express and written agreement as to tbe rate of loss, this does not, when sued on, dispense with tbe necessity of proving tbe facts on which tbe rate was reached. (Luelcey v. Bashby, 13 C. B., 864; Chamberlain v. Reid, 13 Me., 359.)
    If adjustments complete in every formality are not conclusive of tbe facts contained upon a trial, a fortiori a mere ex parte statement, as is tbis, never accepted by tbe government but repeatedly denied, and containing erroneous and extravagant' items, should not be competent to establish anything, even though there bad been some just liability.
    Tbe apportionment contended for by claimant is not reached upon tbe principles required by law.
    Tbe contributory value of goods is tbe net value less freight at tbe port of destination of such as were at risk at the time of tbe sacrifice. (Phil. Ins., 1402, 1403; Lowndes General Average, 232.)
    An adjustment by tbe court cannot be made without clear evidence of tbe value as well of tbe 490 barrels delivered from Aransas Bar and not in tbe schooner at tbe time of peril as of tbe remaining 776| barrels which were beached (p. 35). (Phil. Ins., 1364; 4 Whart., 301; Arnauld Ins., 791; Bedford Ins. Co. v. Parker, 2 Pick., 10.)
    Tbe rule for vessel prescribed by Supreme Court in Star of Hope (9 Wall., 203) is tbe value before stranding was determined upon, without regard to tbe peril; in tbe absence of means of determining tins, tbe value at port of departure, witli reasonable deductiou for deterioration. The value in policy, without other proof, is not to be accepted. (8 Blatch., 221 •, Arnauld, 802.)
    Yet she Avas substantially a new vessel (p. 10), and had not been injured by the act of stranding. (Interrogatory 19, p. 10.)
    The survey is not proved; and even if it had been, it is not evidence of the facts it contains, only that such survey was made. (2 Wash. C. 0., 152.)
    Even if the stranding was voluntary, and necessary for the common benefit, all common expense ceased with the finai and intentional separation of the various interests; this occurred as soon as cargo was landed within three or four miles from the expected place of discharge. (Phillips Ins., 1340.)
    What was thereafter expended was to enable the ship-owner to fulfill his agreement and deliver it at the wharf in Corpus Christi in the manner that would entitle him to demand the full freight by the bill of lading.
    The government force rendered no assistance whatever in unloading ; they received and protected the cargo from wreckers and carried it in teams to the point near Aransas Pass, where it was placed on lighters, as was originally intended, hired by the cajitain.
    ' The expense was for the benefit of freight alone and is in the nature of a transshipment, to be borne by freight. (Pars. Slup., 234, and note; Phillips, 1438, and cases cited; Sugg., Adm’r, v. Balt, and Cuba Smelting and Mining Co., 13 Md., 417.)
    And upon such theory the government allowed him full freight, deducting the cost of delivering it, on the bill of lading, and he ivas x>aid accordingly.
   Hunt, J.,

delivered the opinion of the court:

This action springs from a contract of affreightment. In March, 1856, a cargo of government stores was shipx>ed on the schooner Major Donaldson, at Baltimore, for Corpus Christi. A bill of lading was executed by the master of the schooner in the usual form. The schooner arrived off rhe bar of Corpus Christi in April following and took a pilot. After some delay the vessel was taken over the bar under charge of the pilot. The bar was of an unusual shape. After crossing it, before the wind, it was necessary to luff up to avoid coming on it again. At this moment the wind died out, and the anchors had to be let go. They would not hold. The vessel began striking and' thumping on the bottom. The only alternative to prevent the loss of both schooner and cargo was to run the vessel ashore as., far up the beach as possible.

It is well settled on authority that where a vessel is voluntarily run ashore under such circumstances, but is afterwards recovered so as to be able to perform her voyage, the loss resulting from the stranding is to be made good by general average contribution. • “ Such a claim is clearly within the rule,, that whatever is sacrificed for the common benefit of the associated interests shall be made good by all the interests exposed to the common peril, and which were saved from the common danger by the sacrifice.” (Fowler v. Rathbones, 12 Wall., p. 117; McAndrews v. Thatcher, 3 Wall., 365; Barnard v. Adams, 10 How., 270; 2 Arn. Ins., 784; 2 Pars. Ins., 241, 263; 2 Phil. Ins., 5th ed., 1313; Nelson v. Belmont, 21 N. Y., 38.)

This rule, it is now established, applies to the government as well as to individuals. (United States v. Wilder, 3 Sumn., 309.) “It rests,” in the language of Mr. Justice Story, “upon the ground of justice and equity, according to the maxim, ‘ Qui sentit commodum, sentire debet et onus.’” (Ib.; 3 Kent’s Com., 240; 2 Arn. Ins., p. 920.)

There appears to have been an adjustment of the general average made by an adjuster shortly after the events referred to in the case. The proportion of the contribution there charged against the cargo amounts to $821.93. For this sum the present suit is brought.

A part of the total general average ($650.36) was deducted by the government from the amount of freight due to the vessel.. It is now insisted for the government that this deduction was-properly made. But we do not concur in this view. We find that the expenses were but a remuneration for services rendered for the common safety; and, with perhaps one or two inconsiderable items too small for notice, that they are properly included by the adjuster in the amount to be contributed by the parties in interest. (2 Arn., 914.)

It is therefore ordered that the claimant have judgement, as prayed for, in the sum of $821.93.  