board for use in case of accident, equally with that of ropes, etc., intended for the ordinary service of the ship, but utilised in such cases for rigging. Lord Blackburn in Svendsen v. Wallace, 1885,1 speaks of the practice as 66 one which is not in general inconvenient," and although, he continues, "it throws a considerable onus on those who impugn it to show that the particular circumstances are such as to render an adherence to the practice in that case against principle," he does not go so far as to say that it is justifiable on the principle of general average adopted by English law.

(2) Damage done to engines in working a steamer off the strand is one stage further away from true general average according to the English principle. For in this case the machinery is used simply to move the vessel; and although the circumstances of the work are not those originally contemplated when the adventure was commenced, yet the mode in which the engines move is exactly the same as when the vessel is being propelled by them at sea. That the machinery is worked under exceptional strain in such a case is almost certain, but that is, after all, only somewhat rough or unusual use of the ordinary appliances of the ship. It very seldom occurs that there is in such an operation any intentional sacrifice, ́ although in many cases there may be in the mind of the master the knowledge that the order is a risky one and might result in damage. Lowndes (General Average, p. 119) tries to distinguish between the cases in which the engines are exposed to some extraordinary danger and those in which they are not; but as a rule claims are made for recovery in general average of the damage sustained by engines worked when a vessel is ashore irrespective of the peculiar circumstances of each case. There has hardly yet been time to form a custom on this point, and it is worth remarking that recently American underwriters of cargo in English steamers have refused to admit liability for their proportion of the amounts charged in general average under this heading. It is not easy to convince one's self that all the damage that has been attributed to this cause did actually 1 L. R. 10 App. Cas. 404.

U

result from it, and in many cases the engines have been worked in this exceptional way not for the prevention of any imminent danger, but simply to bring back the vessel to the proper channel or fairway.

In close connection with damage to engines occasioned by working a steamer off the strand, stand the items of coals and other stores expended in such an operation. The inclusion of these items as general average has been strongly opposed, and it certainly seems that if the inclusion of damage to engines in working off is doubtful when regarded in the light of strict principle, the inclusion of coal and engine-room stores is more than doubtful. For these supplies are actually consumed for the very purpose and in the very mode for which they were provided. If the inclusion of them is, even in case of imminent peril regarded as not free from doubt, it is evident that where the vessel is in no danger, but is simply trying to put herself into position to complete the adventure, the inclusion of these items as general average can hardly

be correct.

But in the case of the Bona, 1894 (11 Times L.R. 40), Sir Francis Jeune, President of the Admiralty Division, decided that when a vessel, having been stranded, was got off by her engines, which were in consequence damaged, the cost of repairs to the engines and the cost of the coal consumed in getting her off was a matter of general average. He held that the service which the coal was expended to provide was extraordinary in its nature.1

Wages and Provisions of Crew. In the case of Atwood v. Sellar,2 a question arose respecting the right to claim in general average the wages and provisions of the master and crew during detention for repairs at a port of refuge. In his judgment in the Court of Appeal, Lord Justice Thesiger said: “As a matter of fact, it is extremely doubtful whether the expenses for wages of crew or provisions in a port of refuge have ever been disallowed by

1 This judgment was confirmed by the Court of Appeal (Lord Esher, M. R., Lindley, L. J., Rigby, L. J.), 1st February 1895, 11 Times L. R. 209. 2 L. R. 4 Q.B.D. 342; 5 Q. B.D. 286.

our courts as constituting a claim for general average, in a case where the ship has put into the port to repair damage itself belonging to general average. If, then, the question before us stood only upon principle, we should have no hesitation in deciding it according to the principle we have stated. . . . But the authorities remain to be considered." The English practice has been not to allow to the shipowner these expenses, regarding them as part of what was paid for by the cargo-owner or charterer in the freight; and the increase of these expenses in consequence of detention at a port of refuge is viewed in exactly the same light as that arising from prolongation of the voyage by contrary winds occasioning no casualty. In Fletcher v. Poole, 1769,1 Lord Mansfield held that extraordinary wages and provisions expended during a vessel's detention at Minorca, where she had put in in distress for repairs, could not be allowed as a charge against the underwriter on the ship. In Eden v. Poole, 1785,2 an action was brought to recover the expenditures for wages, provisions, and the demurrage during the detention of a ship at Ferrol, where she put in to repair. Marshall (p. 730) reports that "the underwriters contended that the freight and not the ship was liable for this loss, and that the charge of demurrage could not be allowed upon this policy" (on ship and goods). "Mr. Justice Buller was of this opinion, and nonsuited the plaintiff." Still more to the point is the decision in Power v. Whitmore, 1815,3 on a policy on goods from London to Lisbon. The ship having sustained damage by winds and weather was obliged to put in to Cowes, where a considerable expense was incurred in repairs, in pilotage, in paying and maintaining the master and mariners, and in raising money for those purposes. On her arrival at Lisbon the assured "was adjudged by the maritime court there to pay general average in respect of the expenses, losses, and damages so incurred. . . . The Court held that, as there had been no sacrifice of part for the preservation of the rest, none of the above

1 Park, 89; Marshall, 730, 733 note.

2 Park, 91; Marshall, 730, 733 note.

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4 M. & Sel. 141.

expenses were properly the subject of general average by the law of England" (Marshall, p. 546). Lord Ellenborough said: "General average must lay its foundation in a sacrifice of a part for the sake of the rest; but here there was no sacrifice of any part by the master, but only of his time and patience." Lowndes (General Average, p. 241) reports that in Wilson v. Bank of Victoria, 1867,1 Mr. Justice Blackburn, alluding to the matter, incidentally spoke of the English practice as a matter settled and well known. Demurrage. As the English law makes no allowance in general average for such actual outlays of the shipowner as wages and provisions at a port of refuge, it also refuses to recognise the shipowner's claim for delay of the ship at such port; in other words, for demurrage at a port of refuge. Similarly, the cargo-owner is not entitled to any recovery such as interest on the value of his property for the period of delay. Claims of this nature are not so much claims for actual loss as for failure to realise anticipated profit. In collision cases claims of this nature are admitted.

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Substituted Expenses.—Suppose that in the cases of the Sullivan Sawin (Atwood v. Sellar), and the Olaf Trygvason (Svendsen v. Wallace),3 dealt with above (pp. 287 and 290), the captains of these vessels had found that storage in lighters would be cheaper than warehousing ashore, it is evident that it would have been to the interest of all concerned in these ventures not to land the cargoes, but simply to transfer them to lighters to be reloaded thence when the repairs to the vessels were completed. In such cases the costs of putting into, keeping in, and loading from the lighters form what are known as Substituted Expenses. These are incurred by adopting a method of treating the case adopted in preference to the ordinary method on account of its comparative cheapness. They are divided in the same proportion in which the total cost of the ordinary method of discharge, storage, and reloading is divided among these three headings. In the same way it has become usual to make special agreements to apportion as substituted ex1 L.R. 2 Q. B. 203. 2 L. R. 4 Q. B. D. 342; 5 Q. B. D. 286. 3 L. R. 10 App. Cas. 404.

penses such charges as for extra towage, undertaken to bring a crippled ship to her destination with the minimum of risk, and so to avoid a prolonged stay for repairs at an intermediate port, which might involve discharge of the cargo in whole or in part, and considerable dismantling of the ship, with the consequent charges for warehousing and reloading. There are two points to be noted in reference to such charges: they cannot be regarded as substituted expenses unless

(1) They are incurred in connection with something done by the shipowner beyond what he has in his charterparty or bill of lading contracted to do.

(2) Their amount must be less than the general average charges would have been had the case taken the ordinary

course.

Procedure of Recovery in General Average.—When a general average consists of sacrifices made by a ship, or of expenses incurred by a ship on behalf of the whole venture, the shipowner has a lien on the cargo for its share of these sacrifices or expenditures. The form in which this lien is usually enforced is a demand by the shipowner for the deposit of a sum sufficient to cover the liability of the consignee's cargo, or for signature by the consignee of an agreement securing payment of his proper proportion of general average when ascertained.

When the sacrifice is one of cargo by jettison, the shipowner, having by the jettison lost the freight payable at destination on the goods thus sacrificed, has also an interest in recovery in general average, and can thus exercise his lien in that case also, and thus act on behalf of the cargoowner also.

But where the damage done consists merely in deterioration of the cargo without any diminution of it or change of species, such as would occasion a loss of freight, then the only party interested in recovery is the owner or consignee of the damaged cargo. In the case of the Sardinian, the steamer after leaving Liverpool for the St. Lawrence took fire, and to prevent total loss of the venture her holds were flooded. The steamer put back to