are permitted to be claimed in General Average. And if it be argued that it is the proper use of powder and shot to be expended in firing at an attacking enemy, I say that it is only the foreseeing care of the owners that provided these serviceable ammunitions. Had the ship not carried them the owner would have saved their cost, and all parties would have lost their property; but by his providence and the expenditure of his stores the loss to all the co-adventurers has been prevented.

Of the Rule relating to the Cause of Losses and Expenses.

The conclusion of this part of the subject is the most fitting place to return to the subject of a maxim which I merely touched on before, viz. that the proximate (we may read immediate) cause of loss, &c., is to be looked to, and not the remote one, in placing the onus. Causa proxima non remota spectatur. Now, in the first place, it is admitted even by the supporters of this dictum, that the exceptions to it are numerous: so that even they would have been wiser in not attempting to make it universal, but in being content to say, "in many cases," or even, "in general, we are to look to the immediate and not to the remote cause." But I should, rather, generally deny the assertion, and say that we are to look to the original, final, and causative cause as the index: and I believe the majority of cases when a rule can be applied will be found to bear this out. Thus in the instance of Barratry; the first cause of loss and that which decides the result, is the master's or mariners' barratrous conduct, although fire,

REMOTE AND PROXIMATE CAUSES OF LOSSES, ETC. 53

or water, or rocks, or custom-house authorities may be the immediate cause of the property being lost to its owners. So with unseaworthiness. If an owner knowingly send his ship to sea in an unseaworthy condition and she be lost, though sea-perils are the immediate cause of that loss, the guiding one is the unseaworthiness of the vessel. Lord Campbell alluded to this very circumstance in giving judgment in Thompson v. Hopper (Nov. 1856), and said, "the wrongful act of the plaintiff led to the loss, though it was not the proximate cause." So again when masts, rigging, sails, &c., which have been carried away are encumbering the decks or hanging in the water, and are then cut and cleared away, the proximate or immediate cause of their loss is the knife and the voluntary act which disengaged them, and this if looked to would class them in the category of General Average; but custom practically decides otherwise, and refers their loss to the original cause, viz., the force of the elements. I think it will be found, throughout, that we shall have to be led by another rule, viz., that in deciding on the destination of average losses and expenses we must be guided by the true and effective cause in which the loss or the expenses originated.

Of certain Expenses entitled Special Charges.

Besides the charges which benefit all the interests at once and thus apply generally, there are others which belong in particular to one or other of the interests. The taking out of the Cargo when it is necessary for the repair of a ship is, we have seen, a subject

of General Average; and so is its carriage and delivery into a warehouse or place of safety. But being there it remains at its own responsibility; and the rent of the warehouse, its insurance against fire, and any means taken to prevent it from being injured, or to improve its condition when damp or damaged, are expenses chargeable specifically to the cargo itself. The expenses of survey on goods, carriage to a kiln to dry, and back to the warehouse are of the same character. So are new cases and bags, and the cooperage and other repairs of packages.

Then, to the Freight are charged the expense of conveying back the goods from the warehouse to the shipping place, the wharfage and quay dues, the lighterage on board, the labour, reloading, stevadores restowing, metage at reshipment, use of screws for cotton cargoes, pilotage out of harbour, boats and men assisting, steamers towing out, &c.

And to the Ship are placed surveys and several charges which we shall speak of in detail when we come to the subject of Particular Average on Ships.

Whether the foregoing Special Charges are rightly classified in being excluded from General Average.

It is, and has been, usual to distribute the several charges just spoken of in the manner described. This is done upon the hypothesis that the consequences of an act of General Average, viz., the landing the goods, cease as soon as those goods are placed in safety on shore, and after that the several interests for a time are isolated from each other. But a se

WHETHER RIGHTLY SO DISTINGUISHED.

55

rious doubt may arise whether this view is correct; -whether it be right to divide the act of General Average; whether in fact a General Average arising from the necessitated landing of cargo is complete till the goods are back again in the ship, and the ship again on her voyage. On this supposition the General Average is only inchoate when the goods are landed. For it was not the intention in discharging the cargo simply to place it in safety, but it was done for an ulterior object, that of placing the ship in such a condition that she should be able to convey those goods on to their destination. Thus the safety of the ship was regarded, the conveyance of the cargo to its market, and the making secure the freight, which could not be secured except by delivering the goods as stipulated in the bills of lading. Why, then, should the custody of the goods whilst detained on shore be charged separately to them; or why should the freight bear the whole burthen of putting back the goods into the ship, when both these expenses are parts only of one design, whose object is the general benefit of associated interests? Why make a distinction which often presses heavily on one of the interests, and would naturally distribute itself more equally among them were the charge classed with the General Average? The answer to these inquiries will be, as before, that the mediate and ultimate consequences of an act are not necessarily in the same category with the act and its immediate consequences. But to show that this argument is only used when convenient, we may compare it with the reasoning on an exactly parallel case, which is this:—

If a cargo of corn, or some destructible article, heat from natural causes, and necessitate the ship putting into a port and the discharging of the cargo, in the generality of instances these expenses will be charged to the cargo, because arising from its natural constitution, and not be charged to General Average. The storage goes, of course, to the cargo; and the reshipping expenses go-not to freight now, but to the cargo, alone; because the landing was rendered necessary by the natural heating of the cargo. Observe, the storage and reshipping charges are resultants from the cargo's heating, and, therefore, the reshipping charges and outward port charges must all be charged to cargo also, as that was the prime cause of their being incurred. It is not said that the cargo being once on shore and in safety it must be put back at the freight's charge, so that the freight may be earned, but that the expenses must be taken as a whole, and that the whole grew out of the natural processes of the cargo. Then why not apply such a rule to the reshipping charges, &c., on goods landed from causes which are the ground of General Average? Let all the expenses that are inherent to the separate interests, such as repairs to ship, deterioration of cargo and diminution of freight—be borne specially by the separate interests; but consider the expenses which are undertaken to set the ship forward on her voyage, to be General Average.

The Spanish commercial law on this subject though completely opposed to our own practice, seems to me singularly logical. It proceeds on the principle that the first or real cause of expenses is responsible for all the consequences. If, according to this code, a ship