contribution to a court of equity, where effectual relief may Com. Dig. be obtained against all the parties in one suit. (a) (4) Since the fourth edition of this work was published, this point has come under solemn discussion in the court of King's Bench; and the learned Judges of that court were unanimously of opinion, that a special action of assumpsit may be maintained by the owner of a ship against the owner of part of the cargo, to recover from him his proportion of a general average loss, incurred by cutting the cable and part of the tackle of the ship, and applying them to a use, for which they were not originally intended, for the general preservation of the whole concern. Birkley v. Presgrave, 1 East's Rep. 220. tit. Chancery. (2 I) & Shower's Parl. Cas. Roccus de assecuratio 62. origin; and what the necessary requisites are to render the act, whence averages arise, legal. I then stated in general what accidents or expences would authorize the sufferer to call for a contribution; the different kinds of property that were subject to such contribution; and lastly, the mode by which the value of this property was to be ascertained. It only remains now to state, that the insurers are liable to pay the insured for all expences arising from general average, in proportion to the sums they have underwritten. Roccus nibus, Not. says, "Jactu facto, ob maris tempestatem, pro sublevanda navi, "an teneantur ass curatores ad solvendum estimationem rerum " jactarum domino ipsarum? Dic eos non teneri, quia pro rebus "jactis fit contributio inter omnes merces habentes in illa navi pro "solvendo pretio domino ipsarum, et ideo si assecuratus recu66 perat pretium rerum jactarum, non potest agere contra asse"curatores: tamen tenentur assecuratores ad reficiendum illam "ratam et portionem, quam solvit assecuratus in illam contri"butionem faciendo inter omnes, habentes merces in illa navi, "quæ portio cum non recuperetur ab aliis, habetur pro deperdita, "et proinde ad illam portionem tenentur assecuratores." The opinion of this learned civilian is agreeable to the laws of all the trading powers on the continent of Europe, as well as to those of England, where the insurer, by his contract, engages to indemnify against all losses arising from a general average. In former editions of this work, I had contented myself with stating the nature of general average, and that the sums paid on this account might be recovered against the underwriters. But I had omitted to state what remedy the person, whose goods were thrown overboard, or who had expended money for the general preservation of ship and cargo, had against those, whose goods or ship were preserved by such In the case of an expenditure of money, probably an action for money paid might be maintained against each of those who were benefited by such expenditure. But as this would lead to a multiplicity of actions; and this species of action is not applicable to the case of goods thrown overboard, the better mode in all cases seems to be to apply for means. contri contribution to a court of equity, where effectual relief may Com. Dig. be obtained against all the parties in one suit. (a) tit. Chan cery. (21) & Shower's (a) Since the fourth edition of this work was published, this point has Parl. Cas. come under solemn discussion in the court of King's Bench; and the learned Judges of that court were unanimously of opinion, that a special action of assumpsit may be maintained by the owner of a ship against the owner of part of the cargo, to recover from him his proportion of a general average loss, incurred by cutting the cable and part of the tackle of the ship, and applying them to a use, for which they were not originally intended, for the general preservation of the whole concern. Birkley v, Presgrave, 1 East's Rep. 220. Beawes Lex Merc. 146. Kaime's p. 6. SAL CHAPTER VIII. Of Salvage. ALVAGE is so necessarily connected with the two former chapters, that it will be proper to take it into consideration here, before we proceed to the other parts of this enquiry. Salvage is an allowance made for saving a ship or goods, or both, from the dangers of the seas, fire, pirates, or enemies: and it is also sometimes used to signify the thing itself which is saved; but it is in the former sense only, in which we are at present to consider it. The propriety and justice of such an allowance must be Eq. Introd. evident to every one; for nothing can be more reasonable · than that he, who has recovered the property of another from imminent danger by great labour, or perhaps at the hazard of his life, should be rewarded by him who has been so materially benefited by that labour. Accordingly, all maritime states, from the Rhodians down to the present time, have made certain regulations, fixing the rate of salvage in some instances, and leaving it, in others, to depend upon particular circumstances. Leg. Rhod. 3.2. art. 45, 46,47. Hartford v. Raym. 393. The law of England, the decisions of which are not surpassed by those of any other nation in justice and humanity, was not backward in adopting a doctrine so equitable in its nature, and so beneficial to those whose property was endangered. Thus, in an action of trover, the defendants pleaded, that Jones, 1 Ld. the goods, for which the action was brought, were in a ship 2 Salk. 654. which, took fire, and that they hazarded their lives to save them but that they were ready to deliver the goods, if the plaintiff would pay 47. for salvage. The court, upon a general demurrer to this plea, were obliged to give judgment for the plaintiff, because the special plea did not confess a conversion. But upon the general point, for which this case is cited, Lord Chief Justice Holt held that the defendants might retain the goods till payment of the salvage, as well as a taylor, an ostler, or a common carrier: and salvage is allowed by all nations; it being reasonable, that a man shall be rewarded, who hazards his life in the service of another. Therefore his lordship, in favour of so just a claim, allowed the defendant to waive his special plea, and plead the general issue. As the propriety of such an allowance is admitted by all, the only difficulty that can arise upon the subject is, to ascertain in what proportions these gratuities and rewards must be allowed. passages art. 4. The laws of Rhodes fixed the rate of salvage in several Vide the instances, sometimes giving for salvage one-fifth of what was last cited. saved; at other times only a tenth; and at others, one-half. Leg. Oler. The regulations of Oleron left it more unsettled; and declared, that the courts of judicature should award to the salvers, such a proportion of the goods saved, as they should think a sufficient recompence for the service performed, and the expence incurred. Almost every state has regulations on this head peculiar to itself; and the legislature of this country has by various statutes expressed its ideas upon the subject. I shall first consider what rule it has established in cases of wreck, and then what the rate of salvage is in cases of recapture. When a ship has been wrecked, the law of England has followed the laws of Oleron in declaring, that reasonable salvage only shall be allowed. But the statute will best shew the idea of the legislature. It appears from the preamble, that the infamous practices, 12 Ann. which a former statute, 27 Edw. 3. c. 13. had endeavoured stat. 2. c. 18. to suppress, of plundering those ships which were driven on shore, and seizing whatever could be laid hold of as lawful prize, still continued; or that if the property were restored to the owners, the demand for salvage was so exorbitant, that the inevitable ruin of the trader was the immediate consequence. The statute, in order to prevent those mischiefs in |