Dormer Sheppard & al' v. Joseph Wright & al' [1698].
[Mew's Dig. xiii. 580; 16 Lds. Jo. 309.]
Whether Average be Allowable in all Cases of a partial Loss at Sea.—Appeal from a Decree of Dismission of a Bill preferred in the Court of Chancery: The Case was thus:
The Appellants did in the Year 1693. load on Board the Ship Union at Gallipoly 210 Tuns of Oils, of which Ship the Appellants were Owners; and the Respondents loaded on Board her at Messina 85 Bales of Silk, upon Freight by Contract, both to be delivered at London. The Ship homeward bound was chased into Malaga Mole by one of the Thoulon Fleet, who were three or four Days in Sight, then stood in for that Port, as if they designed to attack the Fort; and thereupon the Master discoursed the Owners Factor, who sent him off a Lighter to save what they could of the Ship's Cargo; and because the Silk was of the greatest Value, the Silk was put on Board the Lighter, and carried ashore; and to come at the Silk, (for it lay beyond the Oils) they were forced to rummage the Ship: In saving of which, and some small Part of the Oils, many Hours were spent, and by the Seamen only, and at Night the French left the Port, whereupon no more was landed. But about six Days afterwards the French Fleet appeared again before Malaga, and then all Endeavours were used to save the Oils, but they were prevented by the Boats which the French Men of War sent into the Harbour, and the Enemy forced them to their Guns, and when they could defend the Ship no longer, they bored Holes to sink her, but the Oils kept her from sinking, and the French took her, and carried her away. The Bales of Silk were afterwards put on board another Ship, and delivered to the Respondents at London, for which they paid the Freight, &c.
[19] The Appellants pretending that they ought to have a Share of the Silk which was saved, in Proportion to the Value of the Ship and Oils which were lost, they exhibited their Bill in Chancery, to inforce the Respondents to come to an Average with the Appellants for the Loss of their Ship and Oils. And after Examination of Witnesses, on the Hearing of the Cause, the Bill was dismissed.
Argument for Appellants.—And it was argued on the Behalf of the Appellants, That this Dismission was not justifiable by the Rules of Equity; for that it must be agreed, If Goods are thrown overboard in Stress of Weather, or in Danger or just Fear of Enemy, in order to save the Ship and rest of the Cargo, that which is saved shall contribute to a Reparation of that which is lost, and the Owners shall be Contributors in Proportion; and that there was the same Reason here; that by preferring the Salvage of the Silk (being the best of the Cargo) before the Oils, the Owners were deprived of the same Opportunity for the Salvage of the Oils; that as the Sea-law in Extremity directs the Master to preserve the best of his Cargo, and the Goods saved ought to contribute to the Loss of the Goods Ejected; so where one is preferred before the other in case of Extremity, there being no Time to land the Whole, Average is just and reasonable. And as to the six Days Time, there was then no Apprehension of Danger, and consequently the Master could not justify the Landing of any Thing after the Reason of their Fears were removed.
That the Prudence of their Master in saving the Silk before the Oils, ought not to be to the Prejudice of the Owners Interest, the Oils lying next to be preserved; that the pretended Neglect of the Master, in not landing them during the absence of the Enemy, is no Excuse, because then there was no Danger; that the saying that the Loss of the Ship and Oils did not contribute to the Salvage of the Silks, is no Reason, seeing the Salvage of the Silk (which had otherwise been lost) deprived the Owners of the same Opportunity for the Salvage of the other Goods; that in such Adventures, as the Danger is common, so ought the Loss or Damage to be common and equal; that the Master is equally intrusted by and for all; and were it otherwise, it had been the Duty, and will be the Interest of all Owners of Ships to order their Servants in Extremity to preserve their own Goods; that the Silk, being of the greatest Value, it was a National Service, to preserve that before the Oils, and therefore equitable that all who imbark in the same Bottom, should share alike
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