in the same sea risk, and one of them, in a moment of imminent peril, makes a sacrifice to avoid the impending danger or incurs extraordinary expenses to promote the general safety, the loss or expenses so incurred shall be assessed upon all in proportion to the share of each in the adventure.'
In the present case, the 'extraordinary expense' incurred 'to promote the general safety' of the two parties, namely the government (owner of the cargo) and the Loveland Company, was the damage caused to Loveland 33 by the grounding, by which she was prevented from sinking and by which her cargo of three picket boats was saved. The damage resulting from the collisions was not the sacrifice made for the benefit of the rest, but the fact that gave rise to the need for sacrifice.
The expense incurred resulting from repairs to the barge due to its damage from grounding 'shall be assessed upon all in proportion to the share of each in the undertaking.' Star of Hope, supra. Respondent contends that its share in the undertaking was the five picket boats and that they all should be taken into consideration as part of the undertaking and that the tug and both barges should be taken into consideration as libelant's part of the undertaking. Libelant, on the other hand, contends that only the value of Loveland 33 and its cargo of three picket boats should be taken into consideration, on the ground that only they were in peril. If libelant's contention were adopted respondent's liability would be increased considerably over its liability if respondent's contention were adopted.
On the question of damages the present case seems to be controlled by Sacramento Navigation Co. v. Salz, 273 U.S. 326, 47 S. Ct. 368, 71 L. Ed. 663 (1927). In the Salz case the Sacramento Navigation Co. agreed to transport certain barley for Salz on a barge. The barge was towed by a Sacramento steamship in accordance with the terms of a contract of affreightment. The steamship was operated negligently and caused the barge to collide with another ship so that the barley was swamped and destroyed. Salz sued to collect the value of his barley. The defense was that the situation was controlled by section 3 of the Harter Act, 46 U.S.C.A. § 192, which provides:
'If the owner of any vessel transporting merchandise or property to or from any port in the United States of America shall exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped, and supplied, neither the vessel, her owner or owners, agent, or charterers, shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel * * *.'
Salz contended that the Harter Act did not apply, since the negligence causing the injury was that of the steamship and the 'vessel transporting' the cargo was in fact the barge, a separate vessel. The Supreme Court held, however, that for the purposes of the Act the barge and steamship together constituted 'the effective instrumentality' for performing the contract between the parties (which the Court determined to be a contract of affreightment rather than a contract of towage) and that the Act applied to relieve the navigation company of liability.
Although the Harter Act is not involved in the present case, the question arises of whether the tug and barges should be considered as separate vessels or as one. On this issue the facts of the present case are analogous to those of the Salz case, and on that basis the tug and barges must be considered as one. Hence, for purposes of general average contribution, there must be taken into consideration the value, just before the collision, of the tug and two barges, and the value of the entire cargo: the five picket boats.
Libelant places great reliance on The J. P. Donaldson, 167 U.S. 599, 17 S. Ct. 951, 42 L. Ed. 292 (1897), for the proposition that there can be no general average contribution against a tug for damage to, or loss of, a tow of barges. In that case the owner of a tug contracted to tow two barges from Buffalo to Bay City, Michigan. On Lake Michigan a storm arose, and in order to prevent the tug from being driven ashore, her master cut the tow lines. The tug was saved, but the barges were lost. The Supreme Court held that on these facts the tug was not liable in general average for the loss of the barges because 'the right of contribution is limited to the particular ship and cargo, and the sacrifice of one ship for the safety of another does not give rise to any claim of general average,' 167 U.S. at p. 602, 17 S. Ct. at p. 952. This case is factually distinguishable from the case at bar, however, in the ownership of the vessels and in the type of contract involved. In the Donaldson case one party owned the tug and another the barges, and the contract was by A to tow the barges of B. Here tug and barges were all owned by libelant and the contract was not to tow barges but a contract of affreightment. The fact that the freight consisted of picket boats, which are themselves vessels, is totally immaterial.
The Salz case, supra, which deals with a similar factual and contractual situation, governs the present case. The Donaldson case is clearly distinguishable.
In accordance with the stipulation of the parties an interlocutory decree will be entered in favor of libelant for general average contribution for the grounding damage to the barge Loveland 33, the amount of grounding damage being $ 2,500. In determining the general average contribution there shall be taken into account the value of the entire cargo of five picket boats and the value of the tug Gertrude Loveland and both barges. The determination of values and resultant contributions shall be referred to a commissioner if the proctors for the parties are unable to agree thereon between themselves within 30 days after the entry of the interlocutory decree. The collision damage of $ 5,000 to Loveland 33 will not be included in the calculation of the liability of respondent.