upon the adjustment. The amount of the expenses of repairs, to be placed to the account of general contribution, must be strictly confined to the necessity of the case, to enabling the ship with her cargo to prosecute the voyage. As to the charge for the captain's expenses during the unloading, repairing, and reloading, the shipowner must bear the captain's expenses in port, and crimpage must be disallowed, it does not come under general average." But this point came afterwards into discussion in a case of Power v. Whitmore, (a) in the King's Bench, where that Court held, in opposition to the passage in Beawes, and to the inclination of Mr. Justice Buller's opinion in Da Costa v. Newnham, that the wages and provisions of the crew, while the ship remained in port, whither she was compelled to go for the safety of the ship and cargo, in order to repair a damage occasioned by tempest, were not the subject of general average. They also held that the expenses of the repairs themselves were not general average; nor were the wages and provisions of the crew during her detention in port to which she had returned, and was detained there on account of adverse winds and tempests; nor was the damage occasioned to the ship and tackle by standing out to sea with a press of sail in tempestuous weather, in order to avoid an impending peril of being driven on shore and stranded (b). Lord Ellenborough said, "general average must lay its foundation in a sacrifice of a part for the sake of the rest, but here was no sacrifice of any part by the master, but only of his time and patience, and the damage incurred was by the violence of the wind and weather, this is not like the case recently before the Court (c), where the master was obliged to cut away his rigging in order to preserve the ship, and afterwards put into port to repair that which he sacrificed." And it was decided in the case of Price v. Noble (d), that the owners of a ship's cargo were liable to a contribution for (a) 4 M. & S. 141. (b) See Covington v. Roberts, ante, p. 503. (c) Plummer v. Wildman, ante, p. 518. (d) 4 Taunt. 123. Where the conwas held and that the repairs were not the subject of general average. trary doctrine themselves General principle of law deducible from ship's stores necessarily, and by the advice of the mate thrown overboard, after she was captured, and while in the possession of the enemy: for the capture, without condemnation, did not divest the property of the owners while a spes recuperandi remained. The general principle of law deducible from these decisions appears therefore, to be, that if a vessel is compelled to put these decisions. into port, to repair a damage, which is itself the subject of a general average, all the necessary expenses of port charges, wages, and provisions, and the expense of unloading and reloading the said ship, and the necessary outlay in putting the ship in a condition to enable her to pursue her voyage, are properly the subjects of a general contribution. But where a vessel merely puts into a port from stress of weather, though this may be an act of prudence on the part of the captain, and for the benefit of all, yet, inasmuch as it does not result from any sacrifice on the part of the owners for the benefit of the whole concern, the expenses attendant upon this step are not properly the subject of a general contribution, but must be borne by the shipowners themselves. The master part of the It is laid down by writers practically acquainted with the subject, that the loss of exchange on bills drawn by the captain on his owners, for the ship's disbursements, in putting into a port in distress; maritime interest on bottomry bonds, obliged to be given under similar circumstances, interest on advances and the like charges, are the subjects of general average, but it is submitted that, strictly speaking, these charges must follow as incidents to the nature of the loss, and that if it be not itself of the character of a general average, these respective charges consequent thereupon will not partake of it either (a). If a vessel be disabled by the perils of the sea, from carrymay dispose of ing her cargo to its place of destination, the master may hire another vessel, or borrow money on the security of his ship repair the ship, or cargo. But if he be unable to raise money on bottomry, cargo, to ena ble him to (a) See Stevens, 27. or by hypothecation of the cargo, and no other vessel can be obtained, Lord Stowell determined that the master might sell a portion of the cargo, to enable him, by repairing his vessel to carry the remainder to its place of destination, and that the money so obtained might make the subject of a general average. (a). and the money so obtained will make the subject of a ge neral average. Where the master of a ship was arrested by process out of a court of jus tice at the suit of the agent of the ship for the latter had disbursed on money which her account, not being able means sold part of the money by other a cargo in order to procure his liberty and pursue his voyage. It was held, that the owner But in the case of Dobson and others v. Wilson (b), where a ship, having met with tempestuous weather in her voyage from Hull to St. Petersburg, was obliged to put into Copenhagen to unload and repair; the expenses of which repairs, as well as the Sound dues, were paid by the owner's agent at Copenhagen: and the ship being ready to proceed on her voyage, the English expedition against Copenhagen coming in sight she was seized by the Danish government, and the and the master captain and crew made prisoners of war. In consequence to procure the of the hostilities, it being impossible to negociate bills on England, for the purpose of repaying the agent the sums he had advanced for the use of the ship, the agent caused the captain to be arrested, by process by the maritime Court of Justice at Copenhagen. In this situation the captain, for his liberation from imprisonment, and that he might be able to prosecute his voyage, sold a portion of the cargo belonging to the plaintiffs who brought an action against another shipper for contribution. Lord Ellenborough said, "that contribution had the ship been seized for the non-payment of the Sound shippers of other goods dues, I should have thought that a sale of a part of the cargo which arrived to pay them, in the absence of all other means to raise safely at the money for that purpose might have been the claim for a destination. general average. But these dues had been paid by the ship's agent, and the money so paid merely constituted a private debt due to him. I do not think that any part of the plaintiffs' goods was sacrificed for the safety of the ship, and the residue of the cargo, in such a manner as to give them a right to a contribution from the other shippers of goods on (a) The Gratitudine, 3 Rob. Ad. Rep. 255, and see Wilson v. Millar and others, 2 Stark. 1. (b) 3 Camp. 480. of the goods had no right, in the nature of a general average, to a from the port of their Goods are to contribute according to their just value. But wearing apparel and jewels belonging to the person do not contribute. Seamen's wages do not contribute. board. Their proper remedy is against the owner of the ship." II. Secondly, let us now consider what articles are to contribute to make good these losses, and in what proportion. By the ancient laws of Rhodes, Oleron, and Wisbuy, the ship, and all the remaining goods, shall contribute to the loss sustained (a). The most valuable goods, though their weight should have been incapable of putting the ship in the least hazard, as diamonds or precious stones, must be valued at their just price in this contribution, because they could not have been saved to the owners but by the ejection of the other goods. Neither the persons of those in the ship, nor the ship's provisions, nor respondentia bonds, suffer any estimation; nor does wearing apparel in chests and boxes, nor do such jewels as belong to the person merely: but if the jewels are a part of the cargo, they must contribute. Those who carry jewels by sea ought to communicate that circumstance to the master; because the care of them will be increased in proportion to their worth, to prevent their being thrown overboard promiscuously with other things: and hence their preservation will be a common benefit (b). 2. Both by law and custom, the wages of sailors are not to contribute to the general loss; a provision intended to make this description of men more easily consent to a jettison, as they do not then risk their all, being still assured that their wages will be paid (c). 3. The way of fixing a right sum, by which the average ought to be computed, can only be by examining what the whole ship, freight, and cargo, if no jettison had been made, would have produced nett, if they had all belonged to one person, and been sold for ready money. And this is the sum whereon the contribution should be made, all the particular goods bearing their nett proportion (d). portions the and cargo shall contribute? 4. In no respect whatever do the ordinances of foreign In what prostates differ so much, as in the manner of settling the con- ship, freight, tribution of the ship and freight. In some places, the ship contributes for the whole of her value and freight; in others, for the half of her value, and one-third of her freight: and again, in others, both ship and freight are to contribute for L one-half (a). By the laws of Koningsberg, Hamburg, and Copenhagen, the ship is to contribute for the whole of her value and freight (b). They also declare, that the value of the ship shall be that which she was worth when she arrived; and that from the freight a deduction shall be made of the men's wages, pilotage, and such other charges, as come under the name of petty average, of which it is customary everywhere, for the cargo to bear two-thirds, and the ship one. (c). It was held in Da Costa v. Newnham (d), that freight must contribute to the general average. And the whole of the freight payable on the voyage is to be brought into the contribution, for that was in hazard at the time the sacrifice was made, which reduced the general average. And there- Freight must fore, in the case of Williams v. London Assurance Company (e), where a ship was chartered from London to the East Indies, there to deliver her outward cargo, and to return from thence with a cargo for England, into the river Thames, and there make a true delivery, and it was agreed that the (a) Ord. of Genoa and France. (b) 2 Mag. 207, 237, 339. (c) See Stevens on Aver. 51, 55, where he says, "That mode of calculation appears to be the best which approximates the nearest to the value of the ship when she sailed, after deducting the provisions and the stores expended, the wear and tear of the voyage, and any average loss by sea damage incurred up to the time when the general average loss took place." (d) 2 T. R. 407. Freight contri butes according to its full amount, (e) 1 M. & S. 318. And see 6 contribute in respect of a loss occurring voyage, where the ship was chartered out on an outward and home, and freight was |