## Facts

- Navigazione Generale Italiana (NGI) owned the S.S. *Mincio*; Spencer Kellogg & Sons, Inc. owned a bulk linseed cargo carried under a charter party incorporating the York-Antwerp Rules of 1924 and excepting strandings.
- In October 1926, while navigating the Paraná River under a compulsory local pilot, the *Mincio* grounded after departing an anchorage when indicated channel depth was near the vessel’s draft.
- The vessel remained stranded for about 36 hours; officers feared prolonged grounding could open hull seams, admit water, and cause bulk linseed to swell, impair pumping, and threaten ship and cargo.
- The master ordered repeated full-power astern maneuvers to work the vessel off; the vessel was freed but later was found to have extensive damage to bottom, engines, and rudder attributed to the maneuvering while aground.
- Independent average adjusters attributed part of the loss to general average and assessed the cargo’s contribution at $6,451.16.
- After NGI asserted a lien, the cargo owner signed an agreement to pay any general average contribution “determined to be due by independent average adjusters,” but later refused payment.
- The district court dismissed NGI’s admiralty libel, concluding there was no general average and declining to enforce the agreement; NGI appealed.

## Issues

1. Whether the stranding presented a sufficient common danger to ship and cargo such that deliberately straining the engines to refloat the ship constituted a general average act.
2. Whether the cargo owner’s written agreement to pay the general average contribution as determined by independent adjusters was enforceable.
3. Whether alleged unseaworthiness or breach of charter barred the shipowner from recovering general average contribution.

## Decision

- The Second Circuit reversed the dismissal and held for NGI.
- The court found the ship and cargo were in substantial peril from remaining aground, even if not in immediate catastrophe, and the refloating efforts were undertaken in good faith for common safety.
- Damage to the engines, rudder, and related hull damage incurred in the deliberate effort to free the stranded vessel qualified as a general average sacrifice under the York-Antwerp Rules as incorporated in the charter.
- The cargo owner’s agreement to pay the amount determined by independent adjusters was enforceable; the adjusters’ determination was not successfully impeached.
- The defenses of unseaworthiness and breach of charter were not supported by the evidence and did not defeat contribution.

## Legal Principles

- A general average act may exist where ship and cargo face a substantial common peril; immediate or inevitable disaster is not required.
- Deliberate damage to ship or machinery incurred in reasonable, good-faith efforts to refloat a stranded vessel for the common safety can be treated as a general average sacrifice, particularly where contract terms incorporate the York-Antwerp Rules.
- A cargo interest’s written undertaking to pay general average as determined by independent adjusters is enforceable when a bona fide general average situation exists and the adjustment is not effectively refuted.
- Allegations of unseaworthiness or contractual breach must be proven; unsupported claims do not bar recovery of general average contribution.

## Conclusion

The Second Circuit held that the *Mincio*’s stranding created a substantial shared danger and that the master’s decision to use the engines to work the vessel free, though damaging, was a compensable general average sacrifice; it also enforced the cargo owner’s agreement to pay the adjusters’ assessed contribution and rejected unproven unseaworthiness and breach-of-charter defenses.


Navigazione Generale Italiana v. Spencer Kellogg & Sons, Inc., 92 F.2d 41 (2d Cir. 1937)