
    Thomas Whitteridge versus John Norris, Jun.
    To constitute a case of contribution or average, there must concur a contract, by which distinct properties of several persons become exposed to a common peril, and a relief from that peril at the expense of one or more of the concerned; and such relief must be intended, as well as obtained, at the hazard or by the destruction of the property lost, and for which the contribution is claimed.
    Upon the trial of this action of assumpsit, upon the general issue pleaded, before Sewall, J., a verdict was taken for the defendant, subject to the opinion of the Court, on the following facts: —
    “ The defendant, being master of the ship Hope, on her voyage from Salem to Calcutta, in the years 1806 and 1807, received on board said ship a keg -containing 1000 dollars, the property of the plaintiff, to carry to Calcutta aforesaid, on the proper account and risk of the plaintiff, and there to lay out the same to the best advantage in piece goods, and bring home the same in said ship ; the defendant to receive, for his freight, commissions, and all services, one third part of the net proceeds that he should gain on the said dollars.”
    When the ship arrived, in the course of her voyage, in Ballasore Roads, at the head of the Bay of Bengal, a master pilot took charge of her, to pilot her up the River Hoogly to the town of Calcutta; and while she was proceeding under the orders of the said pilot, she struck the ground, and beat hard against the bottom. It being every moment expected that she would bilge, it was thought to be necessary immediately to abandon her. The boats were accordingly hoisted out as quickly as possible, and some provisions and clothing, with seven kegs and two small bags of dollars, being the first that came to hand, were put into the long-boat. The defendant, with his crew, then immediately abandoned the ship, and made for the shore, leaving the ship, with her sails up. In their way to the shore, * the sea ran so high as to en- [ * 126 ] danger the boat’s foundering; and one sea having partly filled the long-boat, it became necessary, for the preservation of the lives of all on board of the boat, to throw the heavy articles overboard ; among which were some parcels of baggage, and six of the kegs of dollars, one of which was the keg first mentioned, belonging to the plaintiff. The remaining keg, with the said two small bags, were saved. One of the said bags belonged to the defendant, and the other bag, and the keg, belonged to the other officers of the ship, and were under their care and custody on board of the boat.
    On the next day after they reached the shore, they discovered the ship drifted along shore, about ten miles distant from them, and went on board, and moored her in a creek. The remaining cargo of said ship, consisting of dollars, was then taken out, and put on board the boats, in which the defendant and his crew proceeded towards Calcutta. While on their way, they met with a brig bound to that place, on board which they put the dollars, and went up in her to Calcutta. Afterwards the defendant, with assistance from Calcutta, went down to the ship, to pump her out, and to put her in the best possible state to prepare to get her into deep water. For that purpose every exertion was used for four days, when she was got out of the said creek, and proceeded under the orders of the pilot to Calcutta.
    
    Every exertion in the power of the defendant, pilot, and crew, was used, to avoid and prevent the several accidents and misfortunes which happened to the said ship, treasure, and cargo.
    And upon the facts aforesaid, the parties submit to the opinion of the Court, whether the defendant is liable, in this action, for any average or contribution, either upon the whole property concerned in the voyage, or upon the property in the boat, from which the keg of money carried for the plaintiff was thrown. And if the Court should be of opinion, that the defendant is so [ * 127 ] liable for an average, he is * to exhibit an account of the property, either in the ship or the boat, upon which such contribution is to be assessed by the Court, and the verdict is to be set aside, and judgment entered for the plaintiff, for the sum so assessed ; but if otherwise, judgment is to be entered for the defendant, according to the verdict.
    The cause was argued upon these facts by Prescott and Putnam for the plaintiff, and Story and Pickering for the defendant.
    
      For the plaintiff, the general principles of contribution were relied upon. The treasure thrown from the boat was voluntarily lost for the preservation of the remaining treasure, and the lives of those in the boat; and the plaintiff is thus entitled to an average, at least from the boat and such of its contents as were saved. But, further, the lives were necessary to the recovery and preservation of the ship, and the property which remained on board her. What was put into the boat was part of the cargo, and the putting it on board, and proceeding with it to the shore, was a pursuing of the voyage, or like putting the cargo on board a new vessel, which would be a new voyage. In this view, the plaintiff holds himself entitled to a salvage from the part of the property saved by the men, whose lives the loss of this adventure, in fact, aided in preserving.
    Whatever is thrown overboard, and is thus the means of saving the remainder, whether so intended or not, shall be contributed to-by the property saved. In order to save the property left in the boat, the plaintiff’s dollars were thrown over ; and the transaction is not distinguishable from any common case of a jettison.
    
      For the defendant, it was argued that here was a complete shipwreck, in which case no contribution is due from goods saved The ship and property on board were wholly abandoned, and at the time of this transaction despaired of. The goods laden on board the boat were not put on board with any view to the preservation of the ship, or of the cargo left on board, nor did they contribute to that object. * The plaintiff’s keg of [*128] dollars, with the other baggage thrown from the boat, were thrown over for the preservation of the lives of the people in the boat, which gives no claim to contribution. 
    
    The action stood continued nisi for advisement, and at the following March term in Suffolk, the opinion of the Court was delivered by
    
      
       1 Emerig. 612, 613. — 2 Valin, 205. — Abott, 217, 225 — Wescott, 132, 255
    
   Sewall, J.

The plaintiff shipped a keg of dollars on board the ship Hope, for which the defendant, as master, gave a receipt, to be carried on a voyage to Calcutta, for the plaintiff’s account, and at his risk; there to be laid out in piece goods, he allowing one third of the net proceeds for freight and commissions. The ship, when under the care of a pilot, after her arrival in Bengal Bay, struck ground, and was thought to be in imminent danger of perishing. In this extremity, and impelled by fears which exceeded the danger, as it proved in the event, the master and crew, acting by the advice of the pilot, took to the boats, and forsook the ship. At leaving her, they attempted to save some articles of the lading, such as were most easily come at; and some kegs and bags of dollars, and amongst the rest the plaintiff’s adventure, were put on board the long-boat. In proceeding towards the shore, the sea running very high, the long-boat was found to be overladen ; and it became necessary, for the preservation of the lives of the people on board, to lighten the boat; and some of the heavy articles taken from the ship were thrown overboard. In this jettison the plaintiff’s keg of dollars was lost; and the long-boat, with the people on board, and the remainder of the articles taken from the ship, reached the shore in safety. The ship, which had been left with her sails standing, was seen, on the next day, drifting tpwards the same shore, and was immediately regained by the master and crew, and, not having suffered any material damage, was taken, with the remainder of her cargo, to Calcutta.

*The plaintiff claims, in this action, a contribution or [ * 129 ] average for his loss in the jettison from the long-boat. And whether the ship and the residue of her lading, which arrived at Calcutta, or that part of the lading which was saved immediately in the long-boat, are liable to a contribution or average for the benefit of the plaintiff, are the questions to be decided.

To charge the concern generally, it has been argued, that the safety of the vessel, and the completion of the voyage, depended essentially upon the saving of the lives of the master and crew, who were landed in the long-boat; and that their afety was procured by the jettison, in which the plaintiff’s keg of dollars was lost. Or, if the claim, in this view of it, should be thought too extensive, then it is argued, that at least the articles saved in the long-boat, after the plaintiff’s keg of dollars, and other heavy articles, were thrown out, are holden to a contribution or average of a loss voluntarily incurred, and in consequence of which the rest of the lading in the long-boat reached the shore.

The general principle, that the owners, freighters, and al ton cerned in a vessel and her lading, preserved by any loss or expense, voluntarily incurred with that purpose, are liable to a contribution and average of the amount, has not been contested. Nor has any doubt been expressed of the application of this general principle to a case where articles of the lading have been voluntarily thrown from the ship, or exposed in a boat, from which they are lost: when this happens in any purpose directed to the preservation of the vessel, and the rest of her lading, and these afterwards arrived in safety. But the circumstances of a voluntary act, and a direction of it to the common preservation, seem to be essential requisites in every case, where a general average or contribution may be claimed. And in such a case, the liability of the freighter, and the right of retaining against him, until the contribution is adjusted, are implied in the contract of affreightment.

[ * 130 ] * In the case at bar, the master and crew of the ship Hope, in taking to the boats, acted with no intention or purpose directed to the common preservation of the ship and cargo. These were considered as lost. The event proved, indeed, that the exposure in the boats was an extraordinary peril, beyond what would have been encountered by remaining in the ship. But this was unforeseen; and the danger, in the long-boat especially, was not voluntarily incurred with any view to. the common benefit. If the ship and cargo had been lost, excepting the articles taken on board the long-boat, these would have been saved for the benefit of their particular owners, without any liability to a contribution or average of any kind ; and although the ship, and the cargo left on board, arrived afterwards in safety, yet their preservation was not owing to the dereliction of the master and crew, or to the unsuccessful attempt to save the plaintiff’s adventure in the long-boat; and the case seems, on the whole, to have no one requisite or circumstance of a case of contribution and average, as it respects the ship and cargo.

As to the few articles of the cargo, which were brought to the shore in the long-boat, these were preserved at the expense of the plaintiff', in some measure. But it is to be considered, that the goods saved in the long-boat, and the goods lost in the jettison from it, were thus exposed together, in consequence of a previous peril, and for the purpose of saving what could be saved, without any concert or mutual design of the parties interested. There was no engagement, or common benefit intended, from which the rights and duties of the respective owners can be inferred. The passengers, as the people in the long-boat may be called, were justified in lightening the boat, upon which they depended for the safety of their lives. The goods thrown out, for every purpose of this inquiry, and as to the rights and duties of the particular owners or freighters, were in no other situation than that of the goods left in the ship. If the ship had perished, the event * had been precisely the same. If the goods lost [*131 ] in the jettison from the long-boat had been left in the ship, the danger from overloading the boat would not have been incurred ; and the eventual safety of the ship, and the loss of the plaintiff’s keg of dollars, in attempting to save them, without any regard to the safety of the ship, or of the other effects taken together into the long-boat, afford no case of contribution or average. The requisites to a case of that nature are, a contract, by which distinct properties of several persons become exposed to a common peril, and a relief from that peril at the expense of one or more of the concerned, who thereupon are entitled to a contribution from the rest; provided the benefit was intended, as well as obtained for them, at the peculiar hazard, or by the destruction, of the property lost.

All these requisites are wanting in the case at bar, considering the claim of contribution to be between those who were owners of the goods taken into the long-boat, with a view to their preservation. This being the opinion of the Court, judgment is to be entered, by the agreement of the parties, for the defendant, on the verdict. 
      
      
        Abbott, part 3, c. 8. — 2 Bulst 280. — Park. 138. — 1 East, 220.
      
     
      
      
        Mouse’s Case, 12 Co. 63.
     