according to English law as general average must be (1) voluntary, (2) extraordinary, (3) intended for the common safety of ship and cargo, and (4) incurred in an emergency.

It must not be a loss (1) inevitable, (2) of things employed in the purpose for which they were intended, or (3), employed or sacrificed for the safety of any separate interest or interests. Tested by this criterion, it will be found that the value of a mast cut away 1 after it is in a state of wreck is not claimable; nor is that of hawsers parted when trying to hold a ship at her moorings or alongside a quay; nor is that of materials used to repair ship or cargo after damage at sea, or of anything sacrificed unnecessarily or without pressure of circumstances.

Baily (General Average, p. 19) adds to these another test, namely, that the act must be judicious. "No act," he says, "can be a general average act unless it is a justifiable act, and no act can be justifiable unless it is judicious; whence we arrive at the conclusion that a general average act must be a judicious act. It becomes necessary, therefore, to determine in every case whether the act performed is judicious. To arrive at a correct opinion on this point, we must take into account how matters stood at the time when the act was performed. To judge of the actions of men by results alone would lead often to erroneous opinions." This test may be expressed more simply by saying that the sacrifice must be reasonable.

The safety of a venture may be secured, or an attempt may be made to secure it, not only by sacrifice, but also by the incurring of expenditure. This is seen in the following case :—

JOB V. LANGTON, 1856.2-The bark Snowdon, on a voyage from Liverpool to St. John's, Newfoundland, ran ashore on the Irish coast. At low water the vessel was left high and dry; before she could get off all the cargo and ballast had

1 Who must order the sacrifice to render it valid as general average sacrifice? In Ralli v. Troop (Sup. Court of U.S., N. York, Mass. Register, 24th April 1895) it was held that the action of the municipal authorities of Calcutta in scuttling the J. W. Parker, jute-laden, on fire, was not a voluntary sacrifice.

2 6 E. & B. 779; 26 L.J. Q. B. 97.

to be discharged; after discharge the cargo was stored in Dublin. But to get the ship off a channel had to be cut; she was got off with the assistance of a steam-tug, and was removed to Liverpool for repairs. It was agreed by both sides that all the expenses incurred in the misadventure, until all the cargo was discharged, were general average expenditures. But the question arose whether the expenses incurred after the whole of the cargo was taken out were chargeable to general average or fell properly upon the ship alone. This gave rise to the case Job v. Langton, 1856.1 In the Court of Queen's Bench Lord Campbell pronounced these expenses not to be claimable in general average, but to be payable by the ship alone. All that he considered to be general average were the expense of discharge, the expense incurred while both ship and cargo were exposed to the same perils, which attempts were made to avert on behalf of both interests.

Claims by Salvors Ransom from Captors. Although the sacrifices and expenditures chargeable to general average are in the end made good by all parties interested, it does not follow that expenses incurred or payments made on behalf of both ship and cargo are general average. For such expenses or payments may in many cases fail to fulfil the criterion of general average laid down in Birkley v. Presgrave: 2 they are not incurred or made to avert a danger then imminently threatening the destruction of the venture. For instance, if salvors pick up at sea a ship laden with cargo and take it into a port of safety, they may decline to liberate what they have picked up without getting payment of what they consider an adequate salvage. If such payment is effected by the shipowner, it is no doubt one beneficial to the whole venture; but it is not an expenditure incurred in emergency and to avert an imminent danger, and therefore it does not constitute general average. On the other hand, a similar payment made to captors, whether in the course of declared war or irregular hostilities, or after seizure by

1 6 E. & B. 779; 26 L.J. Q.B. 97.

2

I East 220.

pirates, may be a general average loss, as in such a case the question may be one between saving the venture by means of the payment, or suffering the venture to expire by capture or seizure of the vessel and its contents.

SCHUSTER v. Fletcher, 1878.1—As with sacrifices, so with expenditures; what is incurred for the advantage of any number of separate interests, and not for that of the whole venture, is not general average. For example, in Schuster v. Fletcher, 1878,1 a shipowner took an active part in saving and transhipping the cargo of his stranded ship. He brought the cargo to its destination, and by so doing earned his freight. There had been difficulty in identifying some of the cargo, owing to obliteration of marks, and some part of it being found unidentifiable had to be sold and the proceeds to be distributed. All this was done by the shipowner, who charged as remuneration for his work a sum debited partly to the separate interests salved and delivered and partly to general average. The case came before Chief Justice Cockburn, who in a most trenchant judgment decided that the services for which remuneration was claimed had nothing to do with general average. He said: "Here the shipowner had an interest in getting the ship off and bringing the cargo into port, in order that he might earn his freight. . . . A great deal of what he has done was in the performance of his own contract. He was bound to use every effort to convey the cargo safely to destination, and could only give up the task when it was hopeless.2 As to the expense incurred in respect of the articles which were identified, it was incurred for his own benefit, for unless he had delivered the goods to the proper owner he could not have obtained his freight; and, as to those unidentified, he took no further trouble, but sold

1 L. R. 3 Q.B.D. 418.

He

2 Regarding these words, see Lord Herschell in the case of the Sir Walter Raleigh (Rose v. Bank of Australasia, H. L. 20th March 1894): "My Lords, I think that that is an overstatement of the law. might elect to carry it on after the ship had been lost, but he is not bound to do so. It cannot be said that the task was hopeless when he was not able, at the cost of some trouble, to bring the cargo into port.' That is all that was said on the point."

them through a broker, who received his brokerage.1 In every respect, therefore, the charges cannot be supported."

Port of Refuge Expenses.-The class of expenditures which come most frequently into consideration in connection with general averages is that included under the words "Port of Refuge Expenses." But such expenses may be occasioned by two entirely dissimilar classes of accident. A vessel may put into an intermediate port either(1) Because the vessel has suffered such damage by storm as to necessitate repairs. Or,

(2) Because it is necessary to replace or repair some part of the vessel or her gear which has been sacrificed or intentionally damaged for the general safety.

In other words, she may put in to repair damage which is of the nature either (1) of particular average, or (2) of general average. In both cases, if the putting in has been a matter of necessity for the general safety, the inward expenses, such as towage and pilotage inwards and harbour dues, are charged to general average, as also the cost of discharging the cargo and bringing it to warehouse. With regard to the other expenses, we are now in possession of judgments of the Court of Appeal and the House of Lords. In Atwood v. Sellar, 1879,2 the Sullivan Sawin, from Savannah to Liverpool, put in to Charleston to replace her foretopmast which had been cut away for the general safety. She discharged her cargo, which was warehoused, and afterwards reloaded it and took it on to destination. The Court of Appeal decided that in such a case of putting in to repair injury caused by a general average act, the expenses of warehousing and reloading goods necessarily discharged to permit of the carrying on of repairs, the pilotage and other necessary expenses outward, are, equally with the inward charges and cost of discharge, recoverable

1 As to charges on unidentified cargo, see the case of the Sir Walter Raleigh (Rose v. Bank of Australasia, H. L. 20th March 1894), in which Lord Herschell gives his opinion that where the shipowner acts reasonably in incurring extraordinary expenditure for the benefit of the adventure generally, there is nothing in point of law that prevents his charging that expenditure upon those who are interested.

2 L. R. 4 Q. B. D. 342; 5 Q. B. D. 286.

as general average. On the other hand, in Svendsen v. Wallace, 1885, the ship Olaf Trygvason, from Rangoon to Liverpool, sprang a leak and had for the common safety to put back to Rangoon. The House of Lords held that when a vessel puts in to repair such injury as this, namely, injury of the nature of particular average, the cost of reloading the cargo is not recoverable in general average, but forms a particular charge on freight.

It was stated above (p. 284) that losses to be properly claimable according to English law as general average must not be losses or damage of things employed in the purpose for which they were intended. In Walthew v. Mavrojani, 1870,2 Lord (then Mr. Justice) Hannen stated this principle thus: "The proposition that general average includes all extraordinary expenses incurred for the purpose of continuing the voyage is not warranted by the principle which governs contribution to general average." There are two striking exceptions to this rule which are admitted by English average adjusters :—

(1) Jury rig.

(2) Damage to engines in working a steamer off the strand.

(1) It has long been customary to regard as recoverable in general average the value of materials used, destroyed, or cut up for the purpose of fitting a vessel with such temporary masting and rigging as she may require. There is no legal decision on the point, but the practice seems to have grown into undisputed custom. No doubt the object of the use or destruction of such materials is the completion of the adventure; that is to say, it is the object which the shipowner and master had in view from the beginning for the earning of an agreed freight, and not the preservation of the whole venture in an emergency. At the same time, the custom is not unreasonable in so far as the materials thus used are put to uses for which they were not originally intended. In practice the whole cost of jury rig is treated as general average; the cost of spare spars, actually put on

1 L. R. 10 App. Cas. 404.

2 L. R. 5 Ex. 116.