Richard Lowndes, a past-master in all matters connected with this subject, remarked in the preface to the second edition of his classical work, The Law of General Average, 1874, that the subject of general average can never be as well understood as when it is studied apart from insurance, "with which it is only accidentally associated, and as an outlying branch of the law of affreightment to which it naturally belongs." If this distinction be clearly borne in mind, it will help to remove difficulties arising out of what may be described as a crossing or conflict of the various interests of the assured who may find himself involved in a disaster of the nature of general average.

Different senses of words "General Average."—It is worth remarking at the outset that, as a cause, result, or accompaniment of this conflict, we have a diversity of senses in which the phrase "general average" is employed. Sometimes it is used to denote the loss to be borne in common by all the interests concerned; sometimes to denote the contribution to be paid by each separate party concerned (each one in the proper proportion of his interest) towards making good that loss.

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Meaning of " Average.”—The word "average" did not appear in the ordinary Lloyd's policy until the addition of the memorandum in 1749, in which the words "free of average, unless general free of average under £5 per cent. . . under £3 per cent unless general" occur. From this wording it appears that, by 1749, two kinds of average had been distinguished, average on the particular goods insured and general average.

Etymology of "Average."-The etymologists have not succeeded in throwing much light on the proper meaning of the word. It is striking that no language except English has preserved the termination occurring in the medieval Latin averagium, which Ducange explains as signifying loss in transit, such as leakage; the French, Italian, Spanish (and in fact all the Romance languages), have taken their law applicable to all persons who chance to have interests on board of a ship at sea exposed to some common danger: threatening the whole. It is a law founded upon justice, public policy, and convenience."

form from the simpler mediæval Latin word haveria, havaria, or averia, which, however, usually means property, especially horses or cattle. It is so difficult to find a transition from this signification to that of loss or damage, that an attempt has been made to trace the Romance forms from an Arabic original awar, meaning defect. The matter is further complicated by the discovery in medieval legal English of the word avex, equivalent to live cattle, Latinised into averium, a word used in medieval English law to denote the best live beast due to the feudal lord on the death of a tenant, a tax or impost. From this original was formed the word average, signifying the rendering of a service or the payment of a tax or contribution. As taxes or imposts are usually levied in some proportion to the means of the contributor, the word average came to acquire its specially English sense of "proportional" or "mean" (as in the phrases average cost, above the average, below the average, etc.).

Average in Fire Insurance.-What is in fire insurance termed the principle of average is simply that, in case the value of any insured goods exceeds the amount insured, the assured shall bear that proportion of any fire loss suffered by the goods which the excess of the value above the amount insured bears to the whole value: the assured is thus in effect his own insurer for part of the value.

"Avarie" in French Law.-There can be little doubt that as far as marine insurance is concerned the word average was suggested by or adopted from the French avarie. The Ordonnance de la Marine of Louis XIV. treats of averages in its seventh title :

Art. 1.-Every extraordinary expenditure made for ships and goods conjointly or separately, and all damage affecting them from their loading and departure until their return and discharge, shall be reputed averages.

Art. 2.-The extraordinary expenses for the ship alone, or for the goods alone, and the damage affecting them in particular, are simple and particular averages; and the extraordinary expenditures made, and the damage suffered for the benefit and common safety of the goods and of the vessel, are gross and common averages.

General Average in English Law. The idea of general average once being introduced into England, its

developments here can best be traced in the reports of the cases decided by the courts, whether these cases refer to the contract of affreightment — involving shipowner and cargo-owner, or to the contract of insurance-involving assured and underwriter.

BIRKLEY V. Presgrave, 1801.1—The ship Argo, when entering Sunderland, her port of discharge, was caught by a squall of such violence that it was found necessary to let go the anchor. To secure the ship she was fastened by a warp to the south pier; but this warp parted. More cable was paid out, and the vessel was let drift alongside the north pier, to which she was fastened with hawsers and tow-lines, such as are generally used for mooring a ship. The captain was afraid that the Argo would be fallen on by another vessel drifting down on her; he therefore cut the cable and moored his ship to the pier with the cable. When he was doing this the other ropes broke, partly from the violence of the storm and partly from another vessel drifting down on the Argo. The shipowner claimed as general average the value of the hawsers and towing-lines as well as the value of the cable cut. The claim was disputed, and formed the subject of the leading case, Birkley v. Presgrave, 1801.1 At the trial the claim for the hawser and towing-lines was withdrawn; it was admitted that as they had been used merely for the purposes for which they were provided, their value was not properly claimable in general average. But the value of the cable was claimed on the ground that it had been "appropriated to a different use from what it was originally intended for, and which contributed to the preservation of ship and cargo." was in the course of this case that Mr. Justice Lawrence gave the following famous definition of general average: "All loss which arises in consequence of extraordinary sacrifices made, or expenses incurred, for the preservation of the ship and cargo comes within general average, and must be borne proportionally by all who are interested.” In the judgment of Lord Chief Justice Kenyon in the same case we find the following: "All ordinary losses and 1 I East 220.

It

XVII G.A. SACRIFICES- -BIRKLEY V. PRESGRAVE 285

damages sustained by the ship happening immediately from the storm or perils of the sea must be borne by the shipowner. But all these 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 proportionally by the defendant as general average." From these judgments we conclude that a sacrifice to be properly claimable according to English law as general average must be (1) voluntary, (2) extraordinary, (3) intended for the common safety of ship and cargo, and (4) incurred in an emergency.1

It must not be a loss (1) inevitable, (2) of things employed in the purpose for which they were intended, or (3) employed or sacrificed for the safety of any separate interest or interests. Tested by this criterion, it will be found that the value of a mast cut away 2 after it is in a state of wreck is not claimable; nor is that of hawsers parted when trying to hold a ship at her moorings or alongside a quay; nor is that of materials used to repair ship or cargo after damage at sea, or of anything sacrificed unnecessarily or without pressure of circumstances.

Baily (General Average, p. 19) adds to these another test, namely, that the act must be judicious. "No act," he says, can be a general average act unless it is a justifiable act, and no act can be justifiable unless it is judicious; whence we arrive at the conclusion that a general average act must

1 In Pirie v. Middle Dock Company, 1881, 4 Asp. 388, Mr. Justice Watkin Williams names five essentials

1. There must be a common danger.

2. There must be necessity for the sacrifice.

3.

The sacrifice must be voluntary.

4. There must be a real sacrifice, and not a mere destruction or casting off of that which had become already lost, and consequently of no value.

5. There must be a saving of the imperilled property through the

sacrifice.

2 Who must order the sacrifice to render it valid as general average sacrifice? In Ralli v. Troop (Sup. Court of U.S., N. York, Mass. Register, 24th April 1895) it was held that the action of the municipal authorities of Calcutta in scuttling the J. W. Parker, jute-laden, on fire, was not a voluntary sacrifice.

be a judicious act. It becomes necessary, therefore, to determine in every case whether the act performed is judicious. To arrive at a correct opinion on this point, we must take into account how matters stood at the time when the act was performed. To judge of the actions of men by results alone would lead often to erroneous opinions." This test may be expressed more simply by saying that the sacrifice must be reasonable.

The safety of a venture may be secured, or an attempt may be made to secure it, not only by sacrifice, but also by the incurring of expenditure. This is seen in the following case :

JOB V. LANGTON, 1856.1—The bark Snowdon, on a voyage from Liverpool to St. John's, Newfoundland, ran ashore on the Irish coast. At low water the vessel was left high and dry; before she could get off all the cargo and ballast had to be discharged; after discharge the cargo was stored in Dublin. But to get the ship off a channel had to be cut; she was got off with the assistance of a steam-tug, and was removed to Liverpool for repairs. It was agreed by both sides that all the expenses incurred in the misadventure, until all the cargo was discharged, were general average expenditures. But the question arose whether the expenses incurred after the whole of the cargo was taken out were chargeable to general average or fell properly upon the ship alone. This gave rise to the case Job v. Langton, 1856.1 In the Court of Queen's Bench Lord Campbell pronounced these expenses not to be claimable in general average, but to be payable by the ship alone. All that he considered to be general average were the expense of discharge, the expense incurred while both ship and cargo were exposed to the same perils, which attempts were made to avert on behalf of both interests.

Claims by Salvors - Ransom from Captors. Although the sacrifices and expenditures chargeable to general average are in the end made good by all parties interested, it does not follow that expenses incurred or payments made on behalf of both ship and cargo are general average. For such expenses or payments may in many cases fail to fulfil the criterion of general average

1 6 E. & B. 779; 26 L.J. Q. B. 97.