quence of a deliberate and voluntary consultation held be tween the master and men. 2ndly, That the ship be in distress, and that sacrificing a part be necessary in order to preserve the rest. 3rdly, That the saving of the ship and cargo be actually owing to the means used with that sole view. Mr. J. Park observes, "that the second point of these three propositions is alone necessary" (a), and therefore, in a case of Bulter v. Wildman (b), where goods were thrown overboard to prevent them falling into the hands of the enemy, this, though jettison, in the general meaning of the term, was held not to be the subject of a general average. Previous deliberation, if there be time to deliberate, and a due choice of the heaviest and most cumbersome articles, may be proof of the necessity and propriety of the act. But they are not the only, and ought not to be considered as the essential proofs. So decided in the case of Birkley and others v. Presgrave (c). Indeed, in such a case, as in many others, too close a compliance with form at a period of supposed danger, has very justly excited a suspicion of fraud (d). It appears, also, by the laws of Wisbuy (e), that in an emergency of such a nature as to justify lightening the ship, it was necessary to consult, first, the owners of the goods, or supercargo; but, if they would not consent, the merchandise might, notwithstanding their refusal, be ejected, if it appeared necessary to the rest of the people on board: a regulation evidently founded in necessity, to prevent the sordid individual from obstructing a measure so essential to the general safety (ƒ). If the ship ride out the storm, and arrive in safety at the port of destination, the captain must make regular protests, and must swear-in which oath some of the crew must join (a) Park Ins. 279. (b) 3 B. & A. 398. (e) 1 East, 220. See also this case for instances of what comes under the "head" of "general average.” (d) See Abbott on Ship. 6th edit. (f) Laws of Oleron, art. 8. Laws of Wisbuy. -that the goods were thrown overboard for no other cause but for the safety of the ship (a). In all countries, however, and in all cases, it is justly required of the master that he draw up an account of the jettison, and verify the same by the oath of himself or some of his crew, as soon as possible after his arrival at any port, that there may be no opportunity to purloin goods, and then pretend they were cast over in the hour of danger (b). It is evident, that from one of the rules above stated, that there can be no contribution without the ejection of some and the saving of others; but it is not always necessary for the purposes of contribution that the ship should arrive at the port of its destination. If the jettison does not save the ship, but she perish in the storm, there shall be no contribution of such goods as happen to be saved, because the object for which the goods were thrown over was not attained. But if the ship be once preserved by such means, and continuing her course should afterwards be lost, the property saved from the second accident shall contribute to the loss sustained by those whose goods were thrown out upon the former occasion (c). Magens, in one place, expresses his opinion contrary to the rules contained in the above ordinances (d); in the next paragraph he admits that the goods saved ought to contribute (e). From the rule established by the Rhodians, various corollaries have been deduced. Thus, if in the act of jettison, or in order to accomplish it, or in consequence of it, other goods in the ship are broken, damaged, or destroyed, the value of these must be included in the general contribution; and damage done to the ship, by cutting holes to effect jettison, or to let out the water (ƒ). So if to avoid an impending danger, or to repair the damage occasioned by a storm (a), the ship be compelled to take refuge in a port to which it was not destined, and into which it cannot enter without taking out a part of the cargo, and the part taken out to lighten the vessel on this occasion happen to be lost in the barges employed to convey them ashore; this loss being also occasioned by the removal of the goods for the general benefit, must be repaid by a general contribution; but, if after the removal of the goods for such a purpose, the ship, with the remaining part of the cargo, should unfortunately perish, and the goods in the barges be saved, the proprietors of the latter shall not contribute to the loss of the others, because the saving thereby is not owing to that loss. So if, upon the expectation of an hostile attack, part of the cargo be taken out and sent away and saved, and the ship, with the remainder of the cargo, fall into the hands of the enemy, the part saved shall not contribute to make good the loss (b). Mr. J. Lawrence, in Birkley v. Presgave, (c) says, "All loss which arises in consequence of extraordinary sacrifices or expenses incurred for the preservation of the ship and cargo, come within the description of general average." The damage sustained in defending a ship from an enemy or pirate, such as the expense of curing and attending upon officers or mariners wounded, does not come under the head of general average, although some writers upon this subject maintain the contrary (d). But Emerigon (e) and others maintain the contrary; and Mr. J. Park says, though in former editions of his work, on the authority of the above-mentioned writers, he had stated that such came under the head of general average (f), in his last edition he says, "that it is quite clear that in point of practice these expenses have (a) In the Dig. 2, 4, and the Guidon, c. 5, art. 28. See Beawes, 165; 2 Valin, 167; Abbott on Ship. p. 428, 6th edit. (b) Sheppard v. Wright, 1 Show. P. C. 18. (c) 1 East, p. 228. (d) 1 Mag. 64; Valin, liv. 3, tit. 7; Le Guidon, ch. 5, art. 4. (e) Ch. 12, p. 41, and note 8, never been placed to the account of a general average: and since the time when the earlier editions were published, the subject underwent considerable discussion in the case of Taylor v. Curtis, (a) in the Court of Common Pleas, where all the authorities quoted on either side were referred to by the Judges; and after time taken to deliberate, their unaniThe expense of mous judgment was pronounced by Lord Chief Justice Gibbs, repairing a ship that neither the expense of repairing a ship, injured by injured by resisting a priva- successfully resisting and beating off a privateer, thus reachteer, curing the wounds of the ing her desired port in safety, nor of curing the wounds of sailors, and the the sailors sustained in the action, nor the ammunition expended in the engagement, was the subject of general average." ammunition expended are not the subject of a general average. Lord Chief Justice Gibbs.-"The doctrine of general average has its origin in the Rhodian law de jactu omnium contributione sarciatur, quod pro omnibus datum est.' The different states of Europe have made different regulations on this subject, all of them professing to follow the Rhodian law, but often differing from each other; and the foreign jurists have made very different comments on that law. In this country, there are no local regulations on this subject; we should, therefore, as in all doubtful cases, resort to the judgments of our municipal Courts, if this point had ever arisen there. There is nothing in any of the foreign jurists which we think ought to govern us on these points, unless they had been supported by admitted principles, decided authorities, or general usage. None of the decided cases apply to the present; and we have unfortunately been so long engaged in war, that instances of this kind must frequently have occurred: and as there appears to be no case where a demand like the present has been made, we must (a) 2 Marsh. 309. The expense of curing the wounded is made the subject of a general average by the Code de Commerce, art. 440, num. 6, and by the ordinances of the Hanse Towns, art. 35. For the provision s of our laws for the encouragement and protection of seamen, see Abb. 6th edit. p. 2, c. 6. conclude from that silence that no general usage, which could justify such a demand, has existed, and, therefore, that such losses cannot be taken to fall within the principle of general average." And it was decided in Harris v. Watson, (a) by Lord Kenyon, that an extraordinary allowance promised by the master to the sailors, in consideration of unusual exertions made by them in a case of danger, cannot be made the subject of a general average, since the mariners are bound, without any extra wages, to use all exertions that are necessary in a time of danger. Another charge usually claimed as general average was, according to Beawes, the sum which the master may have promised to pay for the ransom of his ship to any privateer or pirate, when taken. (b) But, as we have seen in a former part of this work, ransoms are now prohibited by the law of England. (c) A master who has cut his mast, parted with his cable, or abandoned any other part of the ship and cargo, in a storm, in order to save the ship, is well entitled to this compensation; but if he should lose them by the storm, the loss falls only upon the ship and freight, because the tempest only was the occasion of this loss, without the deliberation of the master and crew, and was not voluntarily done with a view to save the ship and lading. (d) But in the case of Covington v. Roberts, (e) where a vessel carrying a press of sail, in order to avoid a privateer, sustained damage, the Court held that it did not come under the head of a general average. It was only a common sea risk, and must be borne by the owner of the ship, who, if insured, can claim the loss from the underwriter. (a) Peake, 72. (d) Beawes, 148. The loss of a cable cut away by the master in a storm as the ship was entering Sunderland harbour, in order to fasten the ship to the pier and pre- (e) 2 N. R. 378. If the master deliberately cuts his mast, cable, or any parts with his other part of the ship, in order to save entitled to the ship, he is compensation by a general average. But if he lose them by the storm, the loss falls upon the ship and freight. |