Imágenes de páginas
PDF
EPUB

CHAPTER IV.

Apportionment of Contribution

The fixed and well-ascertained Rule of Mercantile Law-The Phrases in Decided Cases indicating Cost of Repairs-Principle on which Freight to Contribute to General Average-General Average Losses--Loss arising in consequence of Extraordinary Sacrifices - What constitutes a General Average LossCase of Svensden v. Wallace, the Leading Case on Subject -Judgments of the late Lord Esher and Bowen L.J., in reference to General Average Loss-Common Sea Risk defined-Where thing Destroyed has some Peculiar Condition-No existence of General Average without Intentional Sacrifice-Expression "Hopelessly Lost," what it Signifies Exception “Fire on Board" in Bill of Lading.

What is meant

Contribution Apportioned. by the value of a ship within section 504 of the Merchant Shipping Act, 1854, “is not the value which the owner would have set upon his ship; nor is the sum for which the owner may have recently insured his ship the only criterion, although it is one of many criteria, of its value, but under ordinary circumstances, and with the exception of a case where there is no market for a ship of the kind, such value will be taken to be what the ship would have fetched if sold immediately before her loss".

It is a fixed and well-ascertained rule of mercantile law that when a ship is, by the perils of the sea, thrown into such a situation that it requires expenditure to make her a ship again, and if the ship, when repaired, will not be worth the sum which it would be necessary to expend upon her, or, in other words, if the expense of the necessary repairs of the ship is greater than the value of the ship when repaired, or (which is the same thing, but not, perhaps, so strictly accurate), if a prudent uninsured owner under such circumstances would not repair the ship, then the loss amounts to a "constructive total loss".

There are phrases in some of the decided cases indicating that it should be shown that the cost of repairs must greatly exceed the value of the ship when repaired, and that it must not be a measuring cast. The 514th section of the Merchant Shipping Act, 1854, clearly intends a boon to the shipowner in giving him the power to apply to the court to put a stop to all actions and suits, and have the amount of his liability at once determined, and the claims of the various parties settled by whom they might otherwise be harassed. It is for the benefit of the shipowner obviously that all those actions should be stopped; but where such

actions are brought, the plaintiffs are bound to pay the defendants their costs in actions at law. There can be no claim for interest, as interest is not sanctioned by the Act. Moreover, an order made for payment of money into court is in the nature of a security for the claim, not of liquidated damages.

The principle upon which freight is to contribute in the case of general average is, that but for the recapture, for which the salvage is paid, it would have been lost. Salvage is a compensation to the salvors not merely for the restitution of the property which has been made by them to the prior owners (for that is properly an act of mere justice on their part), but for the risk and hazard incurred by them, and for the beneficial service they have rendered the former owners in rescuing that property from the danger in which it was involved; and the persons to contribute to that salvage are the persons who would have borne the loss had there been no such rescue. The charterer of a vessel is, as it were, a purchaser of the part of the freight, and is liable to lose it by the loss of the ship, and he must, therefore, contribute.

As to general average losses. Now, where the law gives a right it will also give a remedy, and when once the existence of the right is

established, courts of law will adopt a suitable remedy, except under particular circumstances, as where there are no grounds to proceed upon. All ordinary losses and damage sustained by the ship happening immediately from the storm or perils of the sea must be borne by the shipowner. But all those articles which were made use of by the master and crew upon the particular emergency, and out of the usual course, for the benefit of the whole concern, and the other expenses incurred must be paid proportionably by the defendant as general average. "The rule of consulting the crew upon the expediency of such sacrifices is rather founded in prudence, in order to avoid dispute, than in necessity; it may often happen that the danger is too urgent to admit of any such deliberation."

All loss which arises in consequence of extraordinary sacrifices made or expenses incurred for the preservation of the ship and cargo come within the term general average, and must be borne proportionably by all who are interested. No English court has any mission to adapt the English law to the laws of other countries; it has authority only to declare what the law of England is.

"A general average loss may be defined as

a loss arising out of extraordinary sacrifices made, or extraordinary expenses incurred for the joint benefit of ship and cargo; and in order to entitle the party sustaining such loss to a general average contribution it must appear to have been incurred with a view to the general safety of the whole adventure."

may

The question as to what constitutes a general average loss has been exhaustively discussed in the case of Svensden v. Wallace by the late Lord Esher (Master of the Rolls), and affirmed by the House of Lords. Lord Esher said in that case, "if there is danger to the preservation of both ship and cargo from destruction if the ship remains at sea, the act of putting into port to repair is an extraordinary act, which well be called a general If in order to do that act, average act. an expenditure is reasonably incurred, that expenditure is a general average expenditure. If, in order to do that act, towage, pilotage or inward dues must be paid, those expenditures are all and each general average expenditures. When the ship is in the port of distress for repair other acts are often done, and other expenditures are often incurred, which must each be considered. Each of these must be considered as if it were the sole act or expendi

« AnteriorContinuar »