1. The plaintiff, who is respondent 1 here, was hired with his boat by respondent 2 to carry iron bars to the 'S.S. Sorada' of the appellant's company. According to the rules of the harbor, the work of loading should cease at 5 P.M.; but the Courts below have found that the officers of the ship and respondent 2 were very slow and negligent in the loading of these iron bars into the ship, with the result that the work was not completed at 5 P.M. It has been found further that the plaintiff was anxious to return to the shore at 5 P.M., but that he was detained under threat that if he did not remain, he would not be given his wages. During the night, at about 10-30 P.M., an extremely heavy squall arose; and the master of the ship found it necessary for the safety of the ship to cast off the boat of the plaintiff and others. They were then still loaded with iron bars and sank almost immediately. The plaintiff claimed the value of his boat. The first Court gave a decree against defendant 2 (respondent 2) and dismissed the suit against defendant 1(the appellant) on the ground that the remedy against the shipping company was barred by limitation. En appeal, the learned District Judge was of opinion that the suit was not barred by limitation; but decreed the suit chiefly on another ground, viz., that the doctrine of General Average Contribution would apply. Defendant 1 has appealed to this Court. It seems to me that the lower appellate Court was wrong in applying the principle of General Average. Dealing with this question, Carver in his 'Carriage by Sea' in Section 361 says:
In the adventures we have been considering, three classes of interests are usually concerned, viz., the interests in the ship, with her stores, furniture and tackle; those in the cargo; and those in the freight which remains to be paid on the cargo. These interests are liable to their own peculiar risks of total or partial destruction, and also to risks which threaten them as a whole.. The exigencies of marine enterprise at times require that to avert a danger which threatens the whole adventure, some particular interest or interests shall be intentionally sacrificed for the benefit of the remainder. Familiar examples are the throwing overboard of cargo, or the cutting away of masts, for safety in a storm. Where such a sacrifice has been made, the whole burden of the loss occasioned is not left on the interest upon which it has fallen.. The loss is said to be a general average loss; and the contributions made to it by those benefited are general average contributions.
2. It would seem from the above passage that this principle can only be applied to damage to the ship or its tackle or to the cargo or to the freight; and the learned advocate for the plaintiff has not been able to quote any instance to me in which the loss of any other thing not included within one of these three categories has been compensated for by contributions under the principle of 'general average.' The learned District Judge gives the following as his reason for applying the principle of General Average to this loss:
For that purpose (viz., the taking in. of the cargo), he invited the boat to stay and discharge the load, tied it to the ship, and, in a very real sense, made the boat with its cargo part of the ship's economy.
3. It would almost seem as if the learned Judge used the vague word 'economy' because he was not very clear how the principle could be applied to the boats of a third party, which were under the control not of the master of the ship as the ship and cargo were, but of a third party, a mere contractor to bring goods to the ship and unload them. Moreover, even the cargo is not always subject to general average, deck cargo, for example, being an exception. The principle of General Average only applies to those particular classes of goods or things, which by mercantile practice have been subject to that principle. No case has been cited to me in which that principle has been applied to boats or articles that were not a part of the ship, or its cargo, or its freight. Moreover, I do not consider that the loading of a ship in harbor by a person not interested in the ship or its cargo is part of a maritime adventure.
4. I have no doubt however that on the finding of the Courts below, the appellant is liable in tort for the loss of the plaintiff's boat. Had the incident occurred during the day, when the plaintiff was at the side of the ship of his own volition, I might have found it difficult to hold that the cutting of the rope attaching the boat to the ship was a tortious act; but the lowers Courts have found that the plaintiff's boat was there against the plaintiff's will. The Master of the ship and defendant had unlawfully detained the boat and refused to return it to its owner. That being so, the plaintiff was entitled to claim the boat back from the Master of the ship; and if the Master did not return it, he was guilty of conversion. As a bailee of the plaintiff's boat he certainly acted wrongfully in setting the boat adrift and causing it to perish, when his duty lay in preserving it.
5. There remains for consideration the question of limitation, which the first, Court found against the plaintiff as far as his claim against the Shipping Company was concerned. It is argued on behalf of the appellant that the proper Article of the Limitation Act to apply is Article 36 which is
for compensation for any malfeasance, misfeasance or non-feasance independent of contract and not herein specially provided for.
It is therefore a residuary article. There are however two articles which deal specifically with a case of this kind. They are Articles 48 and 49. Article 48 is for specific immovable property lost or acquired by theft, or dishonest misappropriation; or conversion, or for compensation for wrongfully taking or detaining the same.
6. The appellant, as I have already held, was guilty of conversion and of wrongfully detaining the boat. Article 49 also seems to apply. That Article is
for other specific moveable property, or for compensation for wrongfully taking or injuring or wrongfully detaining the same.
7. There was in this case a wrongful detention. It is argued by Mr. Krishnaswami for the appellant that the plaintiff's claim was not for the return of the boat, but for its value. It would have been absurd for the plaintiff to have claimed the return of the boat when he knew it was lying at the bottom of the Indian Ocean. If he had asked, as he might have done, for the return of the boat or its value, there can be no doubt that Articles 48 and 49 would have applied; and the plaintiff's claim cannot be any weaker because he omitted the claim for the return of the boat, which he knew no longer existed. The appeal is dismissed with the costs of respondent 1. Defendant 2 has filed a memorandum of cross objections. The findings of fact of the lower appellate Court show that defendant 2 was a joint tort-feasor with defendant 1 and is, therefore, liable with him for the damage which resulted from their joint wrongful act. The memorandum of objections is also dismissed with the costs of respondent 1.