But admitting that the Rhodian-or as it will now be more convenient to call it the Roman -law of average contribution was generally adopted at the early period of which we are now speaking, it was not so adopted without various modifications; and it will be instructive to ascertain, as briefly as may be, what were the modifications successively introduced. In the Digest of the Basilica, compiled by the Byzantine Emperor Basilius and his son Leo, A.D. 867-880, the following provision was contained regarding average contribution: And when of different parcels or quantities of goods, mixed and confounded, prob. in consequence of their being of the same kind, a part had been thrown overboard for the safety of the vessel, and the rest preserved, it was provided that what was saved should be divided between the proprietors, in proportion to their shares and interests in these goods.

This provision differed from that embodied in the Rhodian law, or perhaps was rather a refinement upon it. [BASILICA.]

By the laws of the Crusaders, promulgated by Godfrey de Bouillon and his followers after the conquest of Jerusalem in the 11th century, contribution was admitted, and enforced, only when jettison had saved the ship-following in this respect the Roman law and the Basilica. [CYPRUS, MARITIME LAW OF.]

The Statutes of Pisa, for the regulation of maritime affairs, promulgated about 1160, admitted contribution only when the jettison had saved the ship. [PISA, MARITIME STATUTES OF.]

In the Jus Navale Rhodiorum, a Greek compilation of maritime laws, and concerning the date of which we can approach no nearer than to say that it was anterior to A. D. 1167, the legal doctrine relative to jettison and contribution is altogether opposed to that of the Digest and the Basilica, for it made no distinction between general and particular average; or, as Mr. Reddie puts it, "It rejects the fundamental distinction between the averages which are called general, or common, Removendi communis periculi causa, and those which are called particular, Cum cæteris, in communi periculo, non est consultum ; and prescribes contribution in both cases." [JUS NAVALE RHODIORUM.]

The Statute of Marseilles, promulgated 1253 and 1255, for the regulation of maritime affairs, admitted contribution only when the jettison had saved the ship. [MARSEILLES, MARITIME STATUTES OF.]

The Capitular Nauticum of Venice, under date 1255, extended the contribution to shipwreck and to pirates-following in this respect the Jus Navale Rhodiorum. [VENICE, MARITIME LAWS AND USAGES OF.]

The Maritime Ordin, of Barcelona, promulgated 1258, admitted of contribution only when the jettison had saved the ship. This Ordin. was quite distinct from the Consolato, of which we have next to speak. [BARCELONA, Ins. ORDIN. OF.]

We now arrive at a period of change. The 13th century was essentially a transition period, as will be seen more fully in our Hist. of Marine Ins.

In the Consolato del Mare, generally admitted to have been compiled in the 13th century, the subject of contribution is treated in a different manner from any of the preceding, both with regard to the kind of sacrifices which give rise to average contribution, and with regard to the mode of valuing the articles which were to contribute. We have seen that the Roman law, the Basilica, and the law of the Crusaders, admitted contribution only when the jettison had saved the ship; and the same rule was adopted at Pisa, Marseilles, and Barcelona. The Greeks, in their Jus Navale Rhodiorum, and the Venetians, in their Capitulare Nauticum, had extended the contribution to shipwreck, and to capture by pirates. The Consolato admitted both systems; the first as legal, the second as conventional, viz., as taking place only so far as the parties interested had entered into an agreement called Germanimento, by which all losses from any accident whatever gave rise to contribution, even when the law did not otherwise require or enforce it. [CONSOLATO DEL MARE.] [GERMANIMENTO.]

The Consolato thus made a sort of compromise between the ancient law, preserved in most maritime countries during the Middle Ages, and the law more recently introduced into others of these countries during those ages. But for the mode of valuation of the articles sacrificed, and of those which behoved to bear contribution, the Consolato adopted a system not to be found in any anterior or contemporaneous legislation. The Roman law and the Basilica caused the things sacrificed to be valued at their prime cost; and the things saved according to what they were worth at the place where the contribution was made. The maritime States of the Mediterranean, such as Pisa and Marseilles, and the Ordin. of Arragon, substituted for this imperfect system a more just rule, directing that the valuation of the things lost, and of the things preserved, should be made according to their worth at the time of their contribution. But instead of choosing between these two systems, the Consolato directs that the goods shall be valued at the prime cost, if the jettison has been made during the first part of the voyage; and if during the second part of the voyage, at the price of the port of arrival.-Pardessus, Reddie.

The Roles d'Oleron-concerning the origin of which so many fabulous stories have been circulated-and the date of which we cannot place anterior to A.D. 1266-appear to follow more generally the Roman law. It is from this compilation, mythically attributed to our own King Richard I., that our maritime usages have in a considerable measure been formed, [ÖLERON, MARITIME LAWS OF.]

The Maritime Laws of Wisby, to which we cannot assign an earlier origin than the 14th century, appear in the main to follow, on the subject of contribution, the Roles d'Oleron, modified in some degree by the usages of the Hanseatic League. [WISBY, MARITIME LAWS OF.]

There is then abundant evidence that the practice of raising contributions by way of average for services in relation to the transport of merchandize was in force in many of the maritime States of Europe at a very early period. In the vols. of Venetian State Papers relating to trade with England, pub. by that accomplished scholar Mr. Rawdon Brown, it will be found recorded under date 1406: "A present of 60 ducats for Dino de Rapundis is to be paid by average on the merchandize of the Flanders Galleys." In 1408 there is a decree of the Venetian Senate authorizing an expenditure of 200 golden ducats for presents to the King of England and the Duke of Burgundy, to be paid by average on goods by the Flanders Galleys. This Mr. Hopkins considers was prob. for safe conduct. In 1438 there is a missive from the Venetian Senate to the Vice-Captain of the London Galleys, Ser Lorenzo Moro, concerning an average of 240 ducats for goods which he had been compelled to throw overboard.

There is still, however, a wide gulf to bridge over between the use of the term Average Contributions, in the sense of providing for a common casualty incident to maritime commerce; or even the use of the word "Average" in the sense indicated in these Venetian documents; and the use of the word in its modern sense, as applying to and embracing nearly every casualty to which either ship or merchandize is liable. It cannot fail to prove instructive to follow this latter phase through its several gradations. In the Ins. Ordin. of Florence, under date 28th January, 1523, we do not find any specific mention of average, but the principle is embodied, thus:

Item.-For defraying the expenses they may be at for that purpose [saving and recovering the ship or goods], they shall assess the merchants and insurers concerned in the ship and cargo; taking the necessary measures to compel them to pay their quotas.

In the Ins. Ordin. of Spain, made by Philip II., 14th July, 1556, direct mention is made of " 'gross average":

X.-Jettisons made for a common benefit, unloading and lightening a ship to pass the shallows in the river of Seville and other parts, and all other common risks, shall be understood as a gross average, to be paid by the ship, freight, and goods; if the occasion was unavoidable, and without fault of the

master.

The Ins. Ordin. of Antwerp, under date 1563, makes direct mention of average : VI.-And in order to ascertain the damage which shall have happened by reason or in consequence of the above-mentioned jettisons, stranding or cutting away for the effectual preservation of life, ship, and cargo, all the goods, whether lost or saved, shall be valued altogether, according to the prices of the market where the goods saved shall be disposed of, for money or money's worth (first deducting from thence the freight and other charges), and then adding thereunto the true value of the ship, or the whole freight agreed for by the master, at the option and choice of the merchant; all which being added together, every one shall from the whole sum be rated in proportion to the goods which he has lost or were saved; which estimation and calculation of such averages shall be made by masters of ships and merchants experienced therein, and that are impartial.

In the Ins. Ordin. of the City of Middelburg, under date 30th September, 1600 (and renewed 10th December, 1689), we find the following:

XVII.-An action for the damage or decay of any ship or goods that are ins., generally called average, must be brought within a year and a half at furthest, if such average happened within the limits of Europe or Barbary; or within three years when at a further distance; the respective times of one year and a half, and of three years, beginning after the ships are entirely unloaden.

XVIII. Further, if the loss either by way of average or otherwise does not exceed one p.c., the assurer shall not be obliged to make good the damage, nor make any return.

Cowell, in his famous Law Dict. pub. 1607, says the word average, when applied to maritime commerce, means "a certain contribution that merchants and others proportionably make towards the losses of such as have their goods cast overboard for the safety of the ship, of the goods, and of the lives of those in the ship, in a tempest; and this contribution seems to be so called, because it is proportioned after the rate of every man's average, or goods carried."

In the Civil Statutes of the Republic of Genoa, under date 1610 (book iv. c. xvi.), title of "Jettisons and how to behave on such occasions," there occurs the following:

Everything that is thrown overboard, in the form as above described, shall be looked upon as a general average, and be divided into equal proportions upon the ship, freight, and cargo; among which are to be included money, gold, silver, jewels, slaves, whether male or female, horses and other cattle.

In 1622 Gerard Malynes, merchant, pub. the first ed. of his Consuetudo, vel Lex Mercatoria; or the Ancient Law Merchant, and therein he treats of "Contributions or Averidges." He speaks of contributions to be made in case of capture by "Pirats;" contribution for "spoyled goods;" contribution for lightening the ship; and also of contribution for pilots; but manifests no familiarity with the term average, which indeed he only uses in combination, or alternatively as above.

In 1676 Mr. Charles Molloy pub., De Jure Maritimo et Navali: or, a Treatise of Affairs Maritime, and of Commerce, in three Books; and therein he treats of " Averidges and Contributions," under the following heads:

1. Of goods and merchandize when subject to be cast overboard. 2. Of the account rendered of such ejected goods and by whom. 4. What goods must come into the averidge and what are exempt. 6. The ship's apparel, whether within the averidge. 7. The residue of the goods, where tacitly

obliged to answer the averidge. 8. Of goods remaining on shipboard spoiled by reason of the ejection of others, where subject to averidge. 9. Where ship and loading are both made liable to the averidge. 10. Of misfortunes, not subject to an averidge. 11. Where the remainder of the goods are exempted from the averidge, and the damage of the ejected goods falls on the master. 12. Damage to the ship where the lading contributes, and the standard rate of contributions. 13. The master becomes a captive for the redemption of ship and lading, where liable to the averidge and where discharged. 14. What goods are subject to the averidge. 15. Contribution for pilotage, and where the remaining goods not subject to averidge. 16. Rules general for settling the averidge.

In the Ins. Ordin. of France, generally styled L'Ordonnance de Louis XIV. touchant a Marine, and "donné à Fontainbleau du mois d'Août, 1681," there is not only a division relating to averages, but there is an attempt to define the different classes of

average:

I. All extraordinary charges made for ship and goods, jointly or separately, and all damage that may happen after the lading and departure, to their return and unlading, shall be reputed average. II. The extraordinary charges for the vessel alone, or for the goods alone, and the particular damage that may happen to them, are particular and simple averages. The extraordinary expenses made, and the damage suffered, for the common good and safety of the whole, both goods, and ship, are gross, or general averages.

III. Simple or particular averages shall be borne and paid by that thing which has suffered damage or caused the expense. The gross or general averages shall fall as well on the ship as on the goods, and shall be so much p.c. on the whole.

In the Ordin. "concerning assu. and averages for the city of Rotterdam," under date 28th January, 1721, there is a special chap. treating "of average,” consisting of 36 clauses. We cannot follow all these, but may give one or two examples:

LXXXIII. All damage arising from anything that is voluntarily done for the preservation of ship and goods, or for preventing greater and more apparent mischief, shall be deemed general average, and be borne by ship and cargo.

LXXXIV. Consequently, when any goods are thrown overboard, or otherwise flung away, or emptied, in order to lighten the ship, it shall be particularly esteemed such.

CXIV. In order to make up the general average, the goods that are lost, as well as those that are saved, must be valued together, and the freight and other charges to be from thence deducted; then to add thereunto in the general average the value of the ship, or the whole freight, which of the two shall amount to the most: the freight in this respect to be calculated as well upon the goods that were saved, as upon those that were flung overboard, or otherwise lost.

CXV. And consequently every one is to receive or pay, out of this general stock, in proportion to the goods lost or saved.

CXIX. Nobody however shall, with regard to average, be further answerable than for the ship and goods that are liable to the same; and on relinquishing the same, every one to be free from any further demand.

In the Prussian Maritime Laws, promulgated about 1730, c. vi. treats of ins. These laws are generally known as the Ordin. of Konigsberg. In them is a chap. on average divided into four parts. 1. Of community between ship and goods. 2. Of jettison, and other average damages. 3. Of contributions in gross averages. 4. Of common on the lesser averages. The chap. opens as follows:

1. The goods designed for a ship being actually put on board, and stowed, they, together with the ship, come under the general average; so that whatever damage any of them may afterwards incur for the general advantage, must be made good by the several parties concerned, according to the prescriptions of this chapter.

The provisions which follow are remarkable for their detail and clearness; and show that at this date at least the application of the "average" to marine losses was understood almost in its fullest modern sense.

In the "Ordin. of the City of Hamburg concerning ins. and average," under date 1731, title 21 treats "of averages, and how they are to be settled":

I. All damages that happen to ships or cargoes, with all the ordinary and extraordinary expenses that are required, from the beginning of a voyage to the end of it, are deemed average.

II. Averages are divided into the lesser or ordinary, and the larger or extraordinary, commonly called general and gross average, as likewise into particular average.

III. The assu. never contribute anything to the lesser or ordinary average, under which denomination are comprehended all the usual payments, such as the ordinary pilotage, light-buoy and pile moneys, or hire of hoys, lighters, and boats, anchorage, ordinary quarantine charges, and such like; whereof the cargo bears two-thirds, reckoned according to the Lasts, but not according to the value, and the ship one-third.

It says that "to the general and extraordinary average belong particularly"

1. All damages that happen to a ship, its equipage, or the goods on board, or are occasioned by a defence it makes in engagements with enemies, privateers, and pirates. 2. The extraordinary pilotage and other charges, which a master is obliged to pay, when by reason of the ship having sprung a leak, or received other damages, he is obliged to seek and run into some harbour. 3. When a ship runs aground, and in order to get off again is forced to have the assistance of strangers, or be unloaded. 4. All what a master agrees for with any privateers or pirates, for the salvage of the ship and cargo, or what he is forced to give them, or otherwise let them have by consent for the redemption of the ship. 5. All what is required for the cure, attendance, and extraordinary maintenance of those officers and sailors, which are wounded or maimed in the defence of the ship, as likewise what is given to the widows and orphans of such husbands and parents as are killed in the engagement. 6. All what a master promises to a ship's company in an engagement or other dangerous accidents, in order to encourage them to a brave defence, and the preservation of the ship. 7. All cables and other ship's materials that are cut away, slipped, or worn out in the preservation of the ship. 8. All that is thrown overboard for the common benefit, or is damaged by such jettisons, or other means used for the preservation of the ship and cargo [except such as are exempted by other clauses of the ordin.] 9. When in time of war, goods or any other things are taken out of the ships by a privateer or other cruiser under commission, not being of the enemy's side, for which payment is promised, but not complied with. 1o. The charges incurred by extraordinary quarantines, or other unavoidable accidents.

This formidable list will be useful for comparison hereafter with modern usages.

A codex of Commercial Laws pub. at Bilboa in 1738, generally designated the Bilboa Marine Ordin., treats of ordinary averages, gross and single, and their differences. It commences as follows:

Whereas doubts and differences frequently arise by reason of the averages which continually happen, as well to ships as to goods and merchandize, by pretences sometimes made, that the ordinary, or single, are gross ones; and so on the contrary; and also in the manner of reckoning them: It is ordained, etc.

Then follows definition of the different classes of average, in relation to their causes. In the "Ordin. of ins. and averages of the City of Amsterdam" [Amsterdam, Ins. ORDIN. OF], under date 1744, and of which we have already given some account, there occur the following clauses:

XXXV. The average or damage on goods that happened during the voyage by outward misfortune shall be repartitioned on the gross cap. that the goods being found would have amounted to at the place of their destination: on the other hand, it shall be lawful for the inladers, owners, or those to whom they are consigned, to make ins. on the freight which they must pay for goods in case of a safe voyage; though on condition that the underwriters, who have íns. thereon, shall be obliged to pay only the estimate of the average fallen on the goods, and no more; and in case of a total loss returns can be demanded from him who has ins. on the freight.

XLII. And whereas the cases from which gross averages result are so variable in circumstances, that they cannot well be stipulated or provided for by any ordin.: those matters are left to the commissioners, to be by them decided and regulated according to law, reason, and equity.

In the Ordin. of ins. and averages made at Stockholm, under date 20th October, 1750sometimes called the King of Sweden's Ordin.—the several kinds of average are treated under the following heads :

1. Of the lesser or ordinary average. 2. Of particular average. 3. Of average in common, or the greater average, together with the circumstances when goods cast overboard are entitled to average. The circumstances when goods cast overboard are not entitled to average. The circumstances relating to the ship, its tackling and apparel, which come within average. The circumstances relating to the ship, its tackling, and apparel, which are not included in average. 4. Of jettison. 5. Of rating and dividing the average. În respect of the lesser average. Of the greater average.

Then there is a supplemental series of art. "relative to ins. and average": 1. Of brokers and their duty in the management of ins. and averages.

2. Of articles of fraud in

ins. and averages. 3. Of the legal time for making a demand in cases of ins. and average.

After this investigation we shall not be surprised to find, as Mr. Manley Hopkins has learnedly pointed out, that by the common consent of nations, one word, slightly modified only by the genius of each language, has been adopted to express marine losses:

Swedish, Hafverie.

German, Averic.
Italian, Avaria.
Spanish, Avaria.
Portuguese, Avaria.
Russian, Avareia.

From a careful study of the preceding authorities-and we believe none of importance have been omitted-it would appear that the application of the designation of "average' to the various adjustments of maritime loss was completely developed during the 17th century; all that has occurred since are either mere refinements, such as will occur from time to time in the laudable endeavour to place all interests upon an equitable footing, or such changes as actual experience has shown to be necessary.

Under this last head must be especially noted a modification introduced about the year 1749, by what is now called the "Memorandum," or more correctly, the " Warranty," and which runs in this form at the foot of the pol. :

N.B.-Corn, fish, salt, fruit, flower, and seed, are warranted free from average, unless general, or the ship be stranded; sugar, tobacco, hemp, flax, hides, and skins, are warranted free from average under 5 p.c.; and all other goods, also the ship and freight, are warranted free from average under 3p.c., unless general, or the ship be stranded.

The italics are ours. We do not propose to discuss at this moment the effect of the modifications so introduced. The matter has been mentioned under AVErage Clauses, and will be fully discussed under WARRANTY.

We shall now proceed briefly to note the various writers on the subject of average, from this period down to date.

In 1750 Mr. Wyndham Beawes pub. his Lex Mercatoria Rediviva; or, A Complete Code of Commercial Law, etc.; and therein he treats of “Salvage, Average, and Contributions," under one head. He says, "average and contributions are synonimous terms in marine cases, and signify, etc."; and then gives a very good summary of the practice incident to average, as it then prevailed.

In 1753 Nicholas Magens, Merchant, pub. in Hamburg the first ed. of his famous Essay on Insurances, wherein he discoursed of "average" as then understood, and brought much knowledge to bear on the subject. He especially discussed the bearing of the regulations in the preceding Ordin. on the subject of salvage, and offered observations "tending to settle divers doubtful points in making up accounts of losses and averages."

In 1759 Mr. T. Cunningham pub. The Law of Bills of Exchange, Promissory Notes,

Bank Notes, and Insurances, etc. The work passed through many eds. In the 6th (1778) the author says:

Average in the merchants' law is used or taken for a certain contribution that merchants and others, who have their goods cast into the sea, do proportionably make towards their losses for the safeguard of the ship, or of the goods and lives of those in the ship in the time of tempest; and this contribution seems to be so called, because it is proportioned after the rate of every man's average or goods carried. It is derived from the word Averia, Cattle.

In 1775 Mr. Thomas Parker, of Lincoln's-inn, pub. The Laws of Shipping and Ins., with a Digest of the Adjudged Cases; containing (inter alia) the determinations of the Courts of Justice on trials concerning shipping, ins., losses, averages, bottomry, barratry, etc. But there is nothing calling for any special note here.

In 1781 Mr. John Weskett pub. A Complete Digest of the Theory, Laws, and Practice of Ins.; compiled from the best authorities, in different languages. A valuable work. This is his digest of the subject before us :

Average means the accidents and misfortunes which happen to ships and their cargoes, from the time of their lading and sailing till their return and unlading. It is divided into three kinds : 1st. The simple or particular average, which consists in the extraordinary expenses incurred for the ship alone, or for the merchandize alone: such is the loss of anchors, masts and rigging, occasioned by the common accidents at sea; the damages which happen to merchandizes by storms, capture, shipwreck, wet, or rotting; all which must be borne and paid by the thing that suffered the damage. 2ndly. The large or common, called gross or general average, being those expenses incurred and damages sustained (whether by ship or goods or both) for the common good, security, and preservation, both of the merchandize and vessel; consequently to be borne by the ship, freight, and cargo, and to be regulated and proportioned upon the whole. 3rdly. The small or petty averages, which are expenses for towing and piloting the ship out of or into harbours, creeks, or rivers, and other port charges; one-third of which must be charged to the ship, and two-thirds to the cargo. It also signifies a small duty which merchants, who send goods in another man's ship, pay to the master for his care of them, over and above the freight; hence it is expressed in the bills of lading, paying so much freight for the said goods, with primage and average as accustomed.

In 1786 Del Signor Baldasseroni, Judge of the Revenue Court of Leghorn, pub. in Florence a work on Marine Ins., Bottomry, and Average. The 4th vol. was especially devoted to jetson, averages, and contributions, with a collection of cases decided by the Italian Courts bearing thereon.

In 1789 Mr. James Allan Park pub. A System of the Law of Marine Ins., etc. In this work, which has passed through many eds., was contained a very learned chap. on "General or Gross Average." He says:

This obligation, which, by the laws of all the maritime countries of Europe, binds the proprietor of the goods or ship saved to contribute to the relief of those whose goods are thrown overboard, is founded on the great principles of distributive justice; for it would be hard that one man should suffer by an act which the common safety rendered necessary, and that those who received a benefit from that act should make no satisfaction to him who had sustained the loss.

In 1801 Mr. John Ilderton Burn pub. A Practical Treatise; or, Compendium of the Law of Marine Ins.; and therein he treated of "general or gross average-adjustment, and the mode of computing the amount of the loss or damage.

In 1802 Mr. Charles Abbott (afterwards Lord Tenterden) pub. A Treatise on the Law relative to Merchant Ships and Seamen; wherein there is a chap. "On General or Gross Average." But there is nothing calling for special note here. In the same year Mr. Serj. Marshall pub. A Treatise on the Law of Marine Ins., Bottomry, and Respondentia; but he does not treat of average distinctively. About this date Mr. Strickland pub. An Essay on Particular Average.

In 1808 Mr. Alexander Annesley pub. A Compendium of the Law of Marine Ins., Bottomry, etc., etc., in which the mode of calculating averages is defined and illustrated by examples.

In 1813 was pub. Mr. Robert Stevens' famous Essay on Average; a work dedicated by permission, in the first instance, to the Committee of Lloyd's; and which, after passing through many eds., is still held in much esteem.

In 1824 Mr. Wm. Benecke, of Lloyd's, pub. A Treatise on the Principles of Indemnity in Marine Ins., Bottomry, and Respondentia; and on their Practical Application in Effecting those Contracts, and in the Adjustment of all Claims arising out of them. It is a work of great authority. The writer treats of averages, and the distinction between general and particular average; of money raised abroad for the purposes of the voyage, and its relation to average; of the adjustment of general average; of total loss and abandonment; and of the adjustment of particular average. The work is well known in the U.S.

In 1844 Mr. Richard Lowndes pub.: Remarks on the English and Foreign Laws and Usages as to General Average.

In 1845 Mr. Francis Hildyard pub. : A Treatise on the Principles of the Law of Marine Ins., wherein, comparing "average losses," he points out that they differ essentially from total losses, "because there may be many average losses in the voyage, and many average losses as well as one total loss; but there cannot be more than one total loss, for when that occurs the adventure is at an end."

In 1848 was pub. Sir Joseph Arnould's Treatise on the Law of Marine Ins. ; by many regarded as the very highest authority upon the subject. It is instructive to note what this learned writer says regarding average :

The phrase "general average" is sometimes used to denote the kind of loss that gives a claim to