/905 (Jornpll IGaui ^riyonl Sltbratji Cornell University Library KD 1826.D83 1905 3 1924 022 401 735 COMMERCIAL INSTRUCTION- Books puWished by EFFINGHAM WILSON, 11, ROYAL EXCHANGE, E.G. COMMERCIAL CORRESPONDENCE, Including Hints on Composition, explanations of Business Termsj and a large number of Specimen Letters and Commercial Documents as actually in current use, together with informa- tion on the general Commercial subjects treated in the Corres- pondence. For use in Commercial Classes, and by those in business. By E. H. COUMBE, B.A., Lond., Lecturer on English History, Language and Literature at the City of London College ; Head of the Coramercial Department of the Chelsea Polytechnic ; of Gray's Inn, Barrister-at-Law. Price 2s. 6d. net. A PRACTICAL SYSTEM OF BOOK-KEEPING, Including Bank Accounts. By GEORGE JACKSON. Twenty- fourth Edition. Bevised by H. T. Easton, Associate of the , Institute of Bankers, Author of "The Work of a Bank," " Banks and Banking," &c. 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By the Right Hon. VISCOUNT GOSCHEN. Price 6s. net, THE LAW AFFECTING GENERAL AND PARTICULAR AVERAGE LAWRENCE DUCKWORTH OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW ; AUTHOR OF "AN EPITOME OF THE LAW AFFECTING MARINE INSURANCE," ETC. SECOND EDITION— ENTIRELY RE-WRITTEN LONDON EFFINGHAM WILSON 54 THREADNEEDLE STREET, E.G. 1905 [All rights reservedi // /. 2ll PREFACE. The primary object of the work is to place before the shipping public a succinct statement of the English laiv affecting the subjects with which it deals,' namely, General and Particular Average. It has been chiefly compiled for the use of Lawyers, Shipowners, Shipbrokers, Under- writers, Average Adjusters, in fact, all persons interested in shipping matters ; and — the first Edition having been exhausted in a short time — I trust this Edition will prove, if anything, more useful. The proofs have been read by the courteous and experienced Secretary of the Liverpool Underwriters Association, T. A. Bellew, Esq., to whom I tender my heartiest and sincerest thanks. IV The latest decisions down to the time of going to Press are incorporated or referred to in the text. The Appendix contains the York-Antwerp Rules, 1890 ; Lloyd's Average Bond ; Lloyd's Bottomry Bond ; Lloyd's Respondentia Bond ; Lloyd's Form of Salvage Agreement (by kind permission of Sir H. M. Hozier, K.C.B., Secretary of Lloyd's Corporation) ; and the Form of Agree- ment approved and adopted by the Liverpool Underwriters Association (by kind permission of T. A. Bellew, Esq.). These Forms have been revised to date. Special attention has been given to the Index, which I trust may facilitate reference. LAWRENCE DUCKWORTH. Middle Temple, January, 1905. CONTENTS. CHAPTER I. Definitions .... 1-3 Average in maritime law — Average in its original form — The various definitions of Average — Lawrence, J.'s, defini- tion in Birkley v. Presgrave — Words " all loss " in defini- tions of General Average — Special or Particular Average — Gross Average — Customary Average — Petty Average. CHAPTER II. Perils of the Sea 4-15 Common sea risk defined — Unseaworthiness : Fawcus v. Sars- field — Schloss v. Heriot — Negligence not a peril of the sea : Grill v. General Iron Screw Collier Co. (Ltd.) — Hill V. Wilson — Sailing Ship " Garston " Company (Ltd.) v. Hickie, Borman &• Co. — Thames and Mersey Marine In- surance Co. (Ltd.) V. Hamilton, Eraser &• Co. — Wilson, Sons &• Co. V. Owners of Cargo per the " Xantho " — Mont- gomery &• Co. V. Indemnity Mutual Marine Insurance Co. (Ltd.) CHAPTER III. General and Particular Average Loss . . . 16-37 General Average loss calculated according to law of port of discharge : Simonds v. White — General Average loss exhaustively discussed : Svensden v. Wallace — A twood v. Sellar — Job v. Langton — Hall v. Janson — Walthew v. Mavrojani — Harrison v. Bank of Australasia — Plummer v. Wildman — Hendricks v. Australasian Insurance Co. — " Free firom Average under 3 per cent. " : Marine Insurance VI Company (Ltd.) v. China Transpacific Steamship Com- pany (Ltd.) — Scuttling: Papayanni v. Grampian S.S. Co. — " Warranted free from Particular Average unless the ship be stranded ": Alsace Lorraine — Anglo-Argentine Live Stock and Produce Agency v. Temperley Shipping Com- pany. CHAPTER IV. General Average Contribution 38-50 Lien for contribution and Average: Hallet v. Bousfield — Shipper of goods may recover contribution against another shipper: Dobson v. Wilson — Where privilege reserved to owner of goods, he may claim contribution from ship- owner : Gould V. Oliver — Contribution in respect of ad- vanced freight : Frayes v. Worms — Contribution in respect of spars, wood, extra coal, and injury done to donkey- engine : Harrison v. Bank of Australasia — Contribution in respect of services rendered to cargo : Hingston v. Wendt — ^Liability to contribute, what it depends upon : Strang, Steel &• Co. v. Scott — Obligation to contribute may be limited, qualified or excluded by special contract — The persons liable to pay General Average contribution — Where contribution not affected by negligence of ship- owners' servants : The Carron Park — When claim for contribution cannot be maintained — The two well-estab- lished exceptions to the rule of contribution : Whitecross Wire and Iron Co. (Ltd.) v. Savill &• Co. — S.S. Balmoral Company (Ltd.) v. Marten, CHAPTER V. Freight and General Average Contribution . . 51-59 Valuation of freight policy of insurance — How calculated: Forbes v. Aspinall — Contributory freight must contribute equally to General Average : Williams v. London In- surance Co. — Steamship Carisbrook Co. v. London and Provincial Marine and General Insurance Co. — William- son v. Innes — Gibbs v. Grey — Cargo ex Galam — Vlierboom V. Chapman — The Soblomsten — Foley v. United Fire and Life Insurance Co. of Sydney — The Kathleen— Section 157 of Merchant Shipping Act, 1894, in regard to freight : Lee V. Southern Insurance Co. CHAPTER VI. Jettison and General Average Contribution . . 60-72 There must be common danger and intentional sacrifice : Milward v. Hibbert — Miller v. Titherington — Johnson v. Chapman — Wright v. Marwood — Fletcher v. Alexander — Burton v. English — Contribution in respect of jettisoned cargo founded upon danger to ship and cargo: Royal Exchange Shipping Co. (Ltd.) v. Dixon &> Co. — Scaife V. Tobin — Ralli v. yanson — Hopper v. Burness. CHAPTER Vn. Salvage and General Average Contribution . . 73-81 Cases of the Dorothy Foster — The Westminster — The India — The £mma— The George Dean — The Galatea — The Jonge Andries—H.M.S. Hayes— The Ellora— The Fusilier— The Vesta — The Glenfruin. CHAPTER Vni. General Average Expenditures ... . 82-115 Preliminary observations : De Vaux v. Salvador — The Grati- tudine — Ship's stores : Price v. Noble — Wages and pro- visions : Power v. Whitmore — Disbursements : De Silvale V. Kendall — Injuries to new ship : Fenwick v. Robinson — Repairs : Moss v. Smith — Ammunition : Taylor v. Curtis — Insurance on freight: De Vaux v. J' Anson — Cargo sold by master for repairs : Hallet v. Wigrar/i — Towage : Job v. Langton — Loan : Hicks v. Shield — The North Star — Edwards v. Southgate — Granger v. Wilson — Hypothecation of ship, freight, and cargo: Duranty v. Hart — Expenses of ship : Kemp v. Halliday — Bottomry bond : The Ham- burg — Indemnity : Duncan v. Benson — Coal : Wilson v. Bank of Victoria — Percentage : Dent v. Smith — Objections of principle : Agenoria S.S. Co. (Ltd.) v. Merchants Marine Insurance Co. (Ltd.) VUl CHAPTER IX. General Average Adjustment 116-123 Proper time in absence of agreement to contrary for adjust- ment of General Average — Phrase " General Average as per foreign statement " • Mavro v. The Ocean Marine Insurance Co. — Harris v. Scaramanga — Hendricks v. Australasian Insurance Co. — " General Average payable according to foreign statement if so made up " •- JJe Hart V. Compania Anonima De Sequoros " Aurora " — The Mary Thomas — The Leitrim — Average adjusters — How adjust- ment must be made. Appendix. York-Antwerp Rules, 1890 125 Lloyd's Form of Salvage Agreement ..... 137 Lloyd's Form of Respondentia Bond 141 Lloyd's Form of Bottomry Bond 143 Lloyd's Average Bond ........ 145 Form of Agreement approved and adopted by the Liverpool • Underwriters Association 147 Index 151 TABLE OF CASES CITED AND REFERRED TO. PAGE Achard v. Ring, 2 Asp. Mar. (Law) Cas. 34 . . . . ^g Agenoria S.S. Co. (Ltd.) v. Merchants Marine Insurance Co. (Ltd.), 19 T.L. Rep. 442 [1903] 112-115 Aitchison v. Lohre, 4 App. Cas. 755 . Alsace Lorraine (The) [1893], P. 209 . Anderson v. Opean S.S. Co., 10 App. Cas. 107 Anglo-Argentine Live Stock and Produce Agency v. Temperley Shipping Co. [1899], 2 Q.B. 403 . Atwood V. Sellar, 4 Q.B.D. 342, 5 Q.B.D. 286 Balmoral (S.S.) Co. (Ltd.) v. Marten [1902], A.C. 511 Banda and Kirwee Booty (Re), L.R. 4 Ad. & Ecc. 436 Barber v. Fleming, L.R. 5 Q.B. 59 Birkley v. Presgrave, i East 220 . Burton v. English, 12 Q.B.D. 218 Byrne v. Schiller, L.R. 6 Ex. 20 . Carisbrook (S.S.) Co. v. London and Provincial Marine and General Insurance Co. [1901], 2 K.B. 861 Carron Park (The), 15 P.D. 203 Chartered Bank of India v. Netherlands Steam 10 Q.B.D. 521 CuUen V. Butler, 5 M. & S. 461 . Dalglish V. Davidson, 5 D. & R. 6 De Hart v. Compariia Anonima de Sequoros Aurora [1903], 2 K.B. 503 Dent V. Smith, L.R. 4 Q.B. 414 . De Silvale v. Kendall, 4 M. & S. 37 . De Vaux v. J 'Anson, 7 Scott 507 . De Vaux v. Salvador, 4 Ad. & E. 420. . Dobson V. Wilson, 3 Campb. 480 39. 4° 35-37 21, 22, 28, 49 49. 50 . 105, 106 ■ 57 2 68-70 . . 87 Navigation Co., . 108-110 10 116 iig, 120 110-112 85, 86 92.93 X Dorothy Foster (The), 6 Rob. 88 . Duncan v. Benson, i Ex. 537 Duranty v. Hart, 2 Moo. P.C. (N.S.), 289 Edwards v. Southgate, 10 W.R. 528 . Ellora (The), Lush. 550 Emma (The), 2 W. Rob. 315 Fawcus V. Sarsfield, 6 E. & B. 192 Fenwick v. Robinson, 3 C. & P. 323 . Fletcher v. Alexander, i L.R. 3 C.P. 375 Flint o. Fletnyng, i B. & Ad. 45 . Foley V. United Fire and Life Insurance Co. of 5C.P. ISS Forbes v. Aspinall, 13 East 323 . Frayes v. Worms, 19 C.B. (N.S.) 159 . Fusilier (The), Br. & Lush. 341 . Galam (Cargo ex) Br. & Lush. 167 Galatea (The), Swab. 349 . Gartano and Maria (The), L.R. 7 P.D. 137, George Dean (The), Swab. 290 Gibbs V. Grey, 2 H. & N. 22 Glenfruin (The), 10 P.D. 103 Gould V. Oliver, 4 Bing. N.C. 134 Granger v. Wilson, 4 B. & S. Gratitudine (The), 3 Rob. 240 Grill V. General Iron Screw Collier Co. (Ltd.), L Hall V. Janson, 4 E. & B. 500 Hallet V. Bousfield, 18 Ves. 187 . Hallet V. Wigram, 19 L.J. C.P. 281 . Hamburg (The), Br. & Lush. 253 Hamilton, Eraser & Co. v. Pandorf & Co., ] Harris v. Scaramanga, L.R. 7 C.P. 481 Harrison v. Bank of Australasia, L.R. 7 Ex Hayes, H.M.S., i Lush. 295 Hendricks v. Australasian Insurance Co., L.R. 9 Hicks V. Shield, 7 E. & B. 633 . Hill V. Wilson, 4 C.P.D. 329 Kingston ». Wendt, 3 Asp. Mar. (Law) Cas. 126 Hopper V. Burness, 3 Asp. Mar. (Law) Cas. 149 Huth V. Lamport, 16 Q.B.D. 442 . 2 App 39 Sydney, R. I C.P Cas. 51: P. 460 73-76 99, 100 . 98 96,97 78-80 • 76 • 5 . 88 62-68 • 93 L.R. 56-58 ■ 51 • 41 . 80 54. 55. 97 ■ 78 . 100 • 77 • 53 . 81 40, 41 97.98 . 84 600 6, 25: .27 39 94 99 13 118 26, 41, 42 • 78 28-30, 118 9496 ■ 7 • 42 • 72 . 106 XI India (The), i W. Rob. 406 Job V. Langton, 6 E. & B. 779 .... Johnson v. Chapman, ig C.B. (N.S.) 563 yonge Andries (The), Swab. 303 .... Kathleen (The), L.R. 4 Ad. & Ecc. 269 Kemp V. Halliday, 6 B. & S. 723 .... Lee V. Southern Insurance Co., L.R. 5 C.P. 397 . Leitrim (The) [1902], P. 256 .... Lidgett V. Secretan, L.R. 6 C.P. 616 . Marine Insurance Co. (Ltd.) v. China Transpacific (Ltd.), II App. Cas. 573 .... Mary Thomas (The) [1894], P. 108 .. . Mavro v. The Ocean Marine Insurance Co., L.R. 9 C.P. 595 S.S PAGE • 76 24,94 61, 62 . 78 . 58 98,99 • 59 3. 121 • 94 Co. 30-35 120, 121 117-119 Millburn v. Jamaica Fruit Importing and Trading Co. of London [1900], 2 Q.B. 540 45 Miller v. Titherington, 30 L.J. Ex. 217 61 Milward v. Hibbert, 3 Q.B. 120 60, 61 Montgomery & Co. J. Indemnity Mutual Marine Insurance Co. (Ltd.) [1902], I K.B. 734 13-15 Moss V. Smith, g C.B. 94 88-92 Nimick v. Holmes, 25 Penn. 366 107 North Star (The), i Lush. 45 g6 Notara v. Henderson, L.R. 5 Q.B. 346 .... 103-105 Papayanni v. Grampian S.S. Co., i Comm. Cas. 448 . . -35 Pirie v. Middle Dock Co., 4 Asp. Mar. (Law) Cas. 388 . 106, 107 Plummer v. Wildman, 3 M. & S. 482 27 Power V. Whitmore, 4 M. & S. 141 84, 85 Prehn v. Bailey, 6 P.D. 127 107, 108 Price V. Noble, 4 Taunt. 123 84 Ralli V. Janson, 6 E. & B. 422 71, 72 Rodocanachi ». Milburn, 18 Q.B.D. 67 3 Royal Exchange Shipping Co. v. Dixon & Co., 12 App. Cas. 11 70, 71 Sailing Ship Garston Co. (Ltd.) v. Hickie, Borman & Co, 18 Q.B.D. 17 7. 8 Scaife v. Tobin, 3 B. & Ad. 523 71 Schloss V. Heriot, 14 C.B. (N.S.) sg 5, 6 Schmidt v. Royal Mail S.S. Co., 4 Asp. Mar. (Law) Cas. 217, and 45 L.J. Q.B. 646 49. Shipton V. Thornton, 9 Ad. & E. 314 106 7 xa Simonds v. White, 2 B. & C. 805 . Soblomsten (The), L.R. i Ad. & Ecc. 293 Steel V. State Line S.S. Co., 37 L.T. Rep. 333 Stewart i/. West India and Pacific Steamship Co., L, 88, 362 Strang, Steel & Co. v. Scott, 14 App. Cas. 601 Svensden o. Wallace, 13 Q.B.D. 6g ; 10 App. Cas. 404 Taylor ». Curtis, 6 Taunt. 608 .... Teuionia (The), L.R. 3 Ad. & E. 394 . Thames and Mersey Marine Insurance Co. (Ltd.) v. Eraser & Co., 12 App. Cas. 484 Thomson v. Taylor, 6 T.R. 478 . Vesta (The), 2 Hagg. i8g Vlierboom v. Chapman, 13 M. & W. 230 Walthew v. Mavrojani, L.R. 5 Ex. 116 Westminster (The), i W. Rob. 229 Whitecross Wire and Iron Co. (Ltd.) Mar. (Law) Cas. 531 Williams v. London Insurance Co., i M. & S. 318 WilHamson v. Innes, i M. & R. 88 Wilson V. Bank of Victoria, L.R. 2 Q.B. 203 Savill & Co., 4 Wilson, Sons & Co. v. Owners of Cargo per the Xantho, 12 App. Cas. 503 . 12, 13 Woodley v. Mitchell, 11 Q.B.D. 47 . . . Wright V. Marwood, 7 Q.B.D. 62 62 PAGE 16, 17, 116 • 55 ■ 5 R. 8 Q.B. 30. 49 43. 44 17-28 . 92 . 72 i,9 57 81 55 26 76 Hamilton, 24, Asp. 48,49 51-53 • 53 100-103 THE LAW AFFECTING GENERAL AND PARTICULAR AVERAGE. CHAPTER I. DEFINITIONS. Average in maritime law — Average in its original form— The various definitions of Average— Lawrence, J.'s, definition in Birkley v. Presgrave—\^ or As "all loss" in definitions of General Average — Special or Particular Average — Gross Average — Customary Average — Petty Average. The expression "average," as used in maritime law, is a foreign word — a Latin term in fact. It has for nearly eighteen centuries been regarded as an unintelligible, or doubtful, symbol. Average, in its original form, seems to have been indispensable to the daily con- cerns of the population on the Mediterranean shores. Average has been variously defined, and some of the definitions are as follows : " In a marine sense, average and contribution are synonymous terms"; "a term used in commerce to signify a contribution made by ship, freight and goods on board a ship, in proportion to their respective interests, towards any particular loss or expense sustained for the general safety of the ship and cargo, in order that the particular sufferer may not in the end be a greater loser than the rest of the persons interested in the ship and goods on board. Average, then, understood in this sense, is called general or gross average, be- cause it falls upon the whole or gross amount • of the ship, freight, and cargo, and also to dis- tinguish it from what is often improperly termed particular average, but which, in truth, means a particular or partial, and not a general loss, and has no affinity to average properly so called." It has been further defined as "the contribution to a general loss ". The most accurate and invariably accepted definition of general average is to be found in the well-known passage in Lawrence, J.'s, judg- ment in Birkley v. Presgrave} which is : " 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 propor- tionably by all who are interested ". The words " all loss " included in the above and other state- ments of the principle of general average ought ^ I B^st 2?o at p. 238, not to be held to extend to include losses which are the result of "accidental circumstances" affecting the loser, and are not losses which the other persons interested ought in ordinary course to be treated as concerned with.^ " The general contribution that is to be made by all parties towards a loss sustained by one for the benefit of all is sometimes called by the name of general average, to distinguish it from special or particular average — a very incorrect expression, used to denote every kind of partial loss happening either to ship or cargo from any cause whatever, and sometimes by the name of gross average, to distinguish it from the customary average mentioned in bills of lading, which latter species is also sometimes called petty average." ' See judgment of Gorell Barnes, J., in the Leitrim [igoz] P. 256 at p. 266 ; see also Rodocanachi v. Milburn (1886), 18 Q.B.D. 67 at p. 77. CHAPTER II. PERILS OF THE SEA. Common sea risk defined — Unseaworthiness : Fawcus v. Sarsfield — Schloss v. Heriot — Negligence not a peril of the sea : Grill v. General Iron Screw Collier Co. (Ltd.) — Hill v. Wilson — Sailing Ship " Garston " Company {Ltd.) v. Hickie, Barman & Co. — Thames and Mersey Marine Insurance Co. {Ltd.) V. Hamilton, Fraser & Co. — Wilson, Sons & Co. v. Owners of Cargo per the " Xantho " — Montgomery & Co. v. Indemnity Mutual Marine Insurance Company {Ltd.). A COMMON sea risk may be defined as that which does not require the deliberation of the party to determine whether it shall be incurred or not. A bill of lading contained special clauses excepting " perils of the seas of what- soever nature or kind soever and howso- ever caused," including negligence of the crew. On the voyage the sea burst through an in- sufficiently fastened port-hole damaging the cargo. It was held by the House of Lords, that as there was in the bill of lading an implied engagement to supply a seaworthy ship, and the jury in the Court below not having found whether the vessel started on her voyage in a seaworthy condition, there was no finding be- (4) s fore the House for judgment to be entered, and, therefore, the case was sent back to the Court below to be reheard. When a shipowner accepts goods to be delivered by him in good condition he impliedly contracts to perform the voyage in a ship which is seaworthy/ In Fawcus v. Sarsfield'^ it was decided that when a vessel is sent to sea unfit for the par- ticular voyage, and, without encountering any more than ordinary risk, is obliged owing to the defective state in which she sailed, to put into a port for repair, the shipowner, though the defects were not known to him, and he has acted without fraud, cannot recover against the insurer the expenses of such repairs as were rendered necessary in consequence of the unseaworthy condition of the vessel, though there be no warranty of seaworthiness. An action was brought by a shipowner against a shipper of goods to recover his pro- portion of average loss. The shipper pleaded that his promise was subject to a condition, namely, that the vessel was seaworthy at the beginning of the voyage, and that she was not seaworthy at the commencement of such voyage. This was held to be a bad plea. ' See SUd v. State Line. S.S. Co., 37 L.T. Rep. 333. ^6 E. «& B. 19a. 6 The shipper further pleaded that there never was any express promise to that effect, that the ship was unseaworthy at the commencement of the voyage and that the average loss was oc- casioned and arose from, and in consequence of, such unseaworthiness. This was held to be a good defence, inasmuch as it showed that the plaintiff's actionable negligence and misconduct produced the very damage for which he sought to recover contribution from the defendant.^ Negligence of the crew of a ship which causes a collision is not a peril of the sea within the meaning of an exception of loss arising from perils of the sea in a bill of lading.^ It is the duty of a shipowner to complete the voyage if he can. "If owing to perils of the seas he is compelled to put into an intermediate port for repair, his duty is to refit and carry on such part of the original cargo as is fit to be carried on. If this is done, a policy on the ship for the original voyage will cover a loss sus- tained after she has been repaired and is sailing from the port of repair to her original port of destination ; and a policy on her original cargo will still cover so much of such cargo as is being 'See Schloss v. Heriot, 14 C.B. (N.S.) 59. ""See Grill v. General Iron Screw Collier Co. (Ltd.), L.R. I C.P. 600, post p. II. carried in her between the same ports. In a case of this description, the original voyage is not regarded as broken up into two, vis., first into one voyage from the port of sailing to the port of refuge, and secondly into another voyage from such port to the port of destination." " Again, if the shipowner, being unable to re- pair his ship, tranships the cargo and sends it home in some other ship which he may do, still, as between him and the original consignees of the cargo, the original voyage is treated as con- tinuing, in the absence of some agreement to the contrary. . . . Further, in a case of this description, a policy on the cargo for the original voyage will cover such cargo when transhipped in order to complete such voyage." ^ In Sailing Ship '' Garston" Company {Ltd.) V. Hickie, Borman & Co.,^ the charter-party con- tained in addition to the exception " perils of the sea" the expression "dangers or accidents of navigation ". The principal question which the Court had to determine was, whether a loss of which the moving and direct cause was a collision caused ^Per Lindley, J., in Hill v. Wilson, 4 C.P.D. 329 at p. 333, Shipton V. Thornton, 9 Ad. & E. 314. See also Arnould and see Shipton v. j nuTni,un,, y jn.\x. i* on Marine Insurance, 2nd. ed., p. 491 ■'iS, Q.B.D. 17C.A. by the negligence of another ship was not caused by a "danger or accident" of navigation within the meaning of the words in the charter. It was held by the Court of Appeal (affirming the Court below) that a collision not caused by the negligent navigation of the carrying ship was a danger properly within the meaning of the words " dangers of navigation," but not within the term " perils of the seas ".' In Thames and Mersey Marine Insurance Co. {Ltd.) v. Hamilton, Fraser & Co.^ the risks against which the insurance was effected were thus described : " And touching the adven- tures and perils which the capital stock and funds of the said company are made liable unto by this insurance, they are, of the seas, men- of-war, fire, enemies, pirates, rovers, thieves, jettisons, letters of mart and countermart, sur- prisals, takings at sea, arrests, restraints and detainments of all kings, princes and people of what nation, condition or quality soever, barratry of the master and mariners, and of all other perils, losses and misfortunes that have or shall come to the hurt, detriment or damage of the afore- said subject-matter of this insurance or any part thereof" The vessel was insured by a time iSee WoocLUy v. Mitchell, ii Q.B.D. 47. ^13 App. Cas. 484. policy, in the ordinary form, on the vessel and her machinery and included the donkey-engine. The donkey-engine was, for the purpose of navigation, used to pump water into the main boilers, when by reason of a valve being closed, which should have been kept open, water was forced into and split open the air chamber of the donkey-pump. It was conceded that the accident was not due to ordinary wear and tear. It was decided by the House of Lords (reversing the decision of the Court of Appeal), that whether the injury was caused accidentally, without negligence or through negligence, it was not covered by the words used in the policy. " I think it clear that the term ' perils of the sea ' does not cover every accident or casualty which may happen to the subject-matter of the insurance on the sea. It must be a peril 'of the sea. Again, it is well settled that it is not every loss or damage of which the sea is the immedi- ate cause that is covered by these words. They do not protect, for example, against that natural and inevitable action of the winds and waves, which results in what may be described as wear and tear. There must be some casualty, some- thing which could not be foreseen as one of the necessary incidents of the adventure. The pur- pose of the policy is to secure an indemnity 10 against accidents which may happen, not against events which must happen. ... If a vessel strikes upon a sunken rock in fair weather and sinks, this is a loss by perils of the sea. And a loss by foundering, owing to a vessel coming into collision with another vessel, even when the collision results from the negligence of that other vessel, falls within the same category. Indeed, I am aware of only one case which throws a doubt upon the proposition that every loss by incursion of the sea, due to a vessel coming accidentally (using that word in its popular sense) into contact with a foreign body, which penetrates it and causes a leak, is a loss by a peril of the sea. I refer to the case of Cullen V. Butler^ where a ship having been sunk by another ship firing upon her in mistake for an enemy, the Court inclined to the opinion that this was not a loss by perils of the sea. I think, however, this expression of opinion stands alone, and has not been sanctioned by subsequent cases. . . . Now, I quite agree that in the case of a marine policy the causa proxiTna alone is con- sidered. If that which immediately caused the loss was a peril of the sea, it matters not how it was induced, even if it were by the negligence of those navigating the vessel. It is equally clear '5 M. &S. 461. It that in the case of a bill of lading you may some- times look behind the immediate cause, and the shipowner is not protected by the exception of perils of the sea in every case in which he would be entitled to recover on his policy, on the ground that there has been a loss by such perils. But I do not think this difference arises from the words ' perils of the sea ' having a different meaning in the two instruments, but from the context or general scope and purpose of the contract of carriage excluding in certain cases the operation of the exception. It would, in my opinion, be very objectionable, unless well settled authority compelled it, to give a different mean- ing to the same words occurring in two maritime instruments. The true view appears to me to be presented by Willes, J., in his judgment in Grill V. General Iron Screw Collier Co. {Ltd.) ^ The question there arose whether, when a vessel was lost by a collision caused by the negligence of those navigating the carrying ship, the case fell within the exception of ' perils of the sea '. It was held that it did not. Reference having been made to cases on policies of insurance, and the interpretation put upon these words, Willes, J., said, ' I may say that a policy of insurance is an absolute contract to indemnify for loss by perils 1L.R. I C.P. 600,611. 12 of the sea, and it is only necessary to see whether the loss conies within the terms of the contract, and is caused by perils of the sea ; the fact that the loss is partly caused by things not distinctly perils of the sea, does not prevent its coming within the contract. In the case of a bill of lad- ing it is different, because there the contract is to carry with reasonable care, unless prevented by the excepted perils. If the goods are not carried with reasonable care, and are consequently lost by perils of the sea, it becomes necessary to reconcile the two parts of the instrument, and this is done by holding that if the loss through perils of the sea is caused by the previous default of the shipowner, he is liable for this breach of his covenant." ^ "If the accident is brought about by the negligence of the owner of the carrying vessel, or his servants, it would be contrary to common sense and against all sound principle to allow one who was the author of the mischief to avail himself of his own wrong. But if the carrying shipowner is free from all blame, why should he suffer for the errors or misconduct of those over whom he has no control .■* As far as he and his vessel are concerned what difference can it ''Per Lord Herschell in Wilson, Sons & Co. v. Owners of Cargo per the " Xantho,'' la App. Cas. 503, at pp. 509, 510, 511. 13 make whether the collision is caused by a sunken rock, or by an iceberg, or by another vessel, or whether that other vessel is or is not in fault. . . . Whatever the expression ' perils of the sea' means in a policy of assurance, it means neither more nor less in a bill of lading." ^ A charter-party and bills of lading contained the exception " dangers and accidents of the seas ". On the voyage rats gnawed a hole in a pipe on board the ship, whereby sea-water escaped and damaged a cargo of rice. There was no neglect or default on the part of the shipowners or their servants. It was held by the House of Lords, reversing the Court of Appeal and restoring the decision of the Court of first instance, that the damage done was within the above exception, and that the ship- owners were not liable.^ In Montgomery & Co. v. Indemnity Mutual Marine Insurance Company {Ltd.),^ the action was brought upon a policy of marine insurance, subscribed by the defendants, on a cargo of nitrate on board the ship Airlie bound from the west coast of South America to the United 1 Per Lord Macnaghten in same case at pp. 516, 517. ^ See Hamilton, Eraser & Co. v. Pandorf & Co., 12 App. Cas. 518. '[1903]! K.B. 734C.A. 14 Kingdom. The insurance was against perils of the sea and other losses of the same character, and the policy contained the usual sue and labour clause. The plaintiffs were the owners of both ship and cargo, and they claimed under the policy to recover a general average loss incurred by the cutting away of the ship's main- mast. At the trial of this action the questions raised were — (i) whether upon the facts there was a general average sacrifice for the safety of the adventure ; (2) whether, the plaintiffs being owners of both ship and cargo, and there being therefore no possibility of contribution, as in the case of separate owners, there could be general average. The facts as stated at the trial were as follows: On 29th March, 1900, the ship Airlie sailed with a cargo of nitrate from Tocopilla, , a port on the west coast of South America, for Shields. On 17th May, while in the latitude of the River Plate, the vessel en- countered very bad weather with a heavy cross- sea, and began to roll and lurch violently. About 9 A.M. it was noticed that the main-mast, which was an iron mast and hollow, had settled down. The rigging, which had slackened, was at once tightened by a process called " swifter- ing up," and the mast so secured, remained firm in position. The ship continued to roll, IS and the master, after some time, fearing that the mast would break and fall on the deck and cause the loss of the vessel, thought it best to get rid of it. Accordingly, the vessel was brought into position ; the windward rigging was cut, and the mast fell on the side, carrying away portions of the other masts and rigging. The wreckage was promptly cut adrift. The vessel was brought home under jury-rig, and reached her port of discharge in safety. It was found when the cargo was discharged, that the mast had been in no greater peril than the rest of the adventure. It had broken across about twelve inches from the keelson. The upper portion had crushed into the lower in telescope fashion, and rested firmly and securely on the keelson. Upon these facts it was held that the loss of the mast for the safety of the whole adventure was a general average loss to which the underwriters of a policy of insurance against perils of the sea were bound to contribute, al- though the assured was owner of both ship and cargo, and therefore, as between those interests, there could be no contribution to general average. CHAPTER III. GENERAL AND PARTICULAR AVERAGE LOSS. General Average loss calculated according to law of port of discharge : Simonds v. White — General Average loss exhaustively discussed : Svensden v. Wallace — Atwood v. Sellar — Job v. Langton — Hall v.Janson — Walthew v. Mavro- jani — Harrison v. Bank of Australasia — Plummer v. Wild- man — Hendricks v. Australasian Insurance Co. — " Free from Average under 3 per cent.": Marine Insurance Company {Ltd.) v. China Transpacific Steamship Company {Ltd.) — Scuttling : Papayanni v. Grampian S.S. Co. — " Warranted free from Particular Average unless the ship be stranded " : — Alsace Lorraine — -Anglo-Argentine Live Stock and Pro- duce Agency v. Temperley Shipping Company. A GENERAL average loss must be calculated between the shipowner and the owner of the goods carried according to the law of the port of discharge. The question in Simonds v. White^ was whether the plaintiffs, the pro- prietors of certain goods carried on board the defendant's ship from Gibraltar to Petersburg, and who were compelled at Petersburg to pay- to the defendant, in order to obtain possession of their goods, a sum of money as a contribu- tion to a general or gross average settled at ^3 B. & C. 805. (16) 17 Petersburg according to the law of Russia, could recover back so much of the money thus paid, as would not have been charged to them on an adjustment of average made according to the law of England, the ship being a British ship,, and all the parties British subjects. It was held that the plaintiffs were not entitled to recover back this money. The question as to what constitutes a general average loss was exhaustively discussed by the late Lord Esher (Master of the Rolls), in the case of Svensden v. Wallace,'^ 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 may well be called a general average act. In order to do that 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 ' 13 Q.B.D. 6g, affirmed, 10 App. Cas. 404. 2 i8 considered as if it were the sole act or expendi- ture, and also whether it may be treated as a part of another act or expenditure. When the ship is in the port of distress it' often happens that the cargo is unloaded and warehoused or otherwise protected, and if necessary manip- ulated ; the ship is repaired, the cargo is reloaded, the ship is taken out to sea and proceeds on her voyage. When the ship and cargo are in the port, both may still be in danger of destruction, or the ship alone, or the cargo alone. If both ship and cargo are in danger it is impossible to conceive, as a fact, that anything which can substantially be called repairs can be done to the ship whilst the cargo is in her. The cargo must then be landed for the safety of both. But the ship alone may be in danger, as, for instance, of breaking her back on a falling tide if the cargo be left in her, though the cargo, from its nature, would not be in danger. In such a case the cargo must be landed solely for the safety of the ship. The cargo alone may be in danger, as if the injured ship be on the ground and safe, but the cargo be perishable if wetted ; then the cargo must be landed, but solely for the safety of the cargo. Or it may be necessary to land the cargo, though neither it nor the ship be in 19 immediate danger, or though the ship only be in danger, because the injury to the ship cannot be repaired without the removal of the cargo. . . . The landing of the cargo in such a case is upon the hypothesis so necessary a part of the act of taking the ship into port so as to be in a position to be repaired, that such act cannot be said to be usefully completed until the cargo is landed. . . . The cost of unloading has con- sequently in such case always been allowed as a general average expenditure. Treated in this way, which seems to be a not unreasonable way of treating the case as a matter of business, the allowance of the item is not against the principle of law, and therefore is rightly allowed. When the cargo i^ landed, it may or may not, accord- ing to its own nature or the circumstances of the locality, require to be warehoused or otherwise protected. It may, in consequence of partial damage already suffered, or from its own nature, require for its own safety to be manipulated, as, for instance, to be unpacked or dried ; but such acts cannot possibly be necessary for the safety or preservation of the ship. She is at the moment safe or unsafe. They cannot be said to be a part of the act of going into port to repair, they have no reference to the act of repairing, or of putting the ship into a position 20 in which she can be repaired. They are, there- fore, not within the principle. The repairing of the ship has nothing to do with the safety of the cargo. It is done in respect of the ship alone. The reloading of the cargo and the outward expenses are expenses of acts done when both ship and cargo are safe from existing danger, and are therefore not within the rule. They cannot be said to be a part of the act of placing the ship in a position to be repaired. Unless, therefore, we are bound by authority to hold otherwise, I am of opinion that according to the law of England, when a ship is obliged for the safety of ship and cargo to go into, and goes into a port of distress in order to repair damage done by sea peril, the expenses of going into the port are general average ex- penses ; that if it is necessary for the safety of both ship and cargo to unload the cargo, or if it is necessary to unload the cargo in order to repair the ship, though it is not necessary for the safety of the cargo, the expense of unloading the cargo is a general average ex- pense ; but if the unloading of the cargo is not for either of these causes the expense of unloading is not a general average expense. I am of opinion, in the same way and in the same case, that the expenses of warehousing, 21 guarding, or manipulating the cargo, of re- pairing the ship, of reloading the cargo, of taking the ship out of port, of the charges of going out of port, are not general average expenses. . . . Warehousing the cargo, re- loading it, going out of port, cannot be said to be parts of the act of taking the ship into port in order to enable her to be repaired. Reloading the cargo and taking the ship out of port when the ship is repaired cannot be parts of the act of repairing the ship. . . . Where the putting into port for repairs is the necessary consequence of a previous general average sacrifice, the law of England is as elastic in respect of the subsequent acts done and expenses incurred in the port as the Ameri- can and other laws are stated to be in all cases of a ship necessarily putting into a port of dis- tress to repair. And for that proposition there were, before the decision in Atwood v. Sellar,^ many weighty dicta by English authors of authority and English judges, but all which dicta drew a distinction between the going into a port of distress in consequence of a voluntary sacrifice, and in putting into port in consequence of a particular average damage." [The case of Atwood v. Sellar decides the iSee 4 Q.B.D. 342, and 5 Q.B.P. 286. 22 point that if a vessel goes into a port of refuge by reason of an injury done to her which is itself the subject of general average, the expenses of warehousing and reloading goods necessarily unloaded for the purpose of repairing the injury, and expenses incurred for pilotage and other charges on the vessel leaving the port are also the subject of general average.] " I adopt that distinction because I do not think that we are bound, in the present case, by the decision in Atwood v. Sellar, and the propriety of that decision with reference to the facts on which it was decided, we are not at liberty to ques- tion. ... I have looked carefully into valuable books written by great average staters, but can- not accept their views on either side as authority. No one can study the law successfully without reading them. No one can give judgment with- out referring to them for valuable aid, but they must not rule the decisions of Courts as by authority." The late Bowen, L.J., said in the same case : " A general average sacrifice is an extraordinary sacrifice voluntarily made in the hour of peril for the common preservation of ship and cargo. There is no difference in principle between a mast voluntarily cut away, an extraordinary 23 expenditure voluntarily incurred, and extraordi- nary loss of time and labour voluntarily accepted, provided that in each case the sacrifice is made for the common safety in a time of danger. Next, as to the object of general average contri- bution. It is to indemnify the person making the general average sacrifice against so much of the loss caused directly thereby as does not fall to his own proportionate share. This pro rata indemnity will not be complete without including in the calculation expenses which, though not themselves within the definition of voluntary sacrifice, nevertheless are directly caused by a voluntary sacrifice, and must, therefore, be recouped if the loss which the sacrifice causes is to be borne pro rata. . . . The question whether extraordinary expendi- ture after the entry into a port of refuge is rightly chargeable to general average neces- sarily depends on the circumstances of each case. Each item of expenditure which is chal- lenged must be considered on its own merits with reference to two tests. The first test is whether such item itself fulfils, as against some or all of the interests to be considered the definition of a general average sacrifice ; the second is, whether such item, though not itself a general average sacrifice, is, nevertheless, an 24 expenditure caused or rendered necessary by one. No supposed conveniences of calculation, and no practice of average adjusters, can justify taking one man's money to pay what by law is another man's individual loss." [The law of England on this last point {irrespective of the law of other countries), undoubtedly is that when some sacri- fice has been made (as, for example, the cutting away of a mast, etc.), the expenses consequent upon going into port after the danger is over to repair this loss are the subject of general average ; because going into port, though there is no im- minent danger at the time, yet being rendered necessary by the sacrifice made in imminent danger, stands upon the same footing as the sacrifice itself] Of course, "exceptional cases ^ . . . may be imagined in which the safety of the ship and cargo, and the safety of the common commercial enterprise, would be almost con- vertible terms, and with reference to such cases it is possible to conceive that expenses after the ship and cargo were in safety from the sea, might on the ground of a physical danger common to both be brought into general aver- age. But (exceptional cases apart) it is not sufficient, according to English law, that an 1 See judgments delivered in ]oh v. LangtoH,6 E. & B. 779, and Walthew v, Mavrojani, L.R. 5 Ex. 116. 25 expenditure should have been made to benefit both cargo-owner and shipowner. The idea of a common commercial adventure, as dis- tinguished from the criterion of common safety from the sea, would lead to the inclusion in general average of, at all events, temporary repairs of the ship caused by particular average loss, and would enable the shipowner to com- plete his part of the contract of affreightment by means of a money contribution levied per- force upon the cargo-owner. The chief English case of note in which language occurs that seems at first sight to favour the notion that a common adventure is the true criterion is Hall v. Janson^ where it was held that the unloading and reloading of cargo, for the sake of effecting repairs upon the ship, might give rise to a liability to contribution on the part of freight. Since freight perishes, if the voyage is frustrated, it may not have been unreasonable to hold that freight ought to contribute to the expenses incurred in unloading and reloading a cargo, the unloading of which is solely under- taken for the sake of repairing the ship. This limited proposition, with which alone Hall v. Janson {supra) was concerned, by no means warrants the conclusion that the cargo ought in ^ 4 E. & B. 500. 26 turn to contribute whenever any expenditure is incurred, not of saving the vessel and its contents, but merely for the sake of prosecuting the voyage. In the subsequent case of Walt hew v. Mavro- jani^ the English doctrine has been re-stated and explained, and the language of the Court in Harrison v. Bank of Australasia ^ is to the same effect. We have been asked on another and a different principle to depart from the strict English theory in favour of port of refuge ex- penses following upon a particular average loss, upon the ground that they all form part of a continuous operation, the whole of which was contemplated by the captain at the time when he put into port. The intentions of the captain are no doubt material in considering the ques- tion whether the act done by him was per- formed only for the benefit of his ship, or for the common preservation of both ship and cargo. But it does not follow, because his intentions are examinable to this extent, that everything which the captain intended in his own mind to do after common safety should have been attained, also ought to be chargeable to general average. Intentions which go be- yond what is needed for common salvation only show that in addition to intending that which ^L.R. 5 Ex. ii6. -L.R. 7 Ex. 50. iiee post, pp. 41, 42. 27 was a general average sacrifice, it was intended further to do something which was not a general average sacrifice, nor directly caused by one. On such a ground repairs of the ship in port ought themselves to be included, for the captain probably intended these ; though he intended them as a means not of saving the cargo, but of earning his own freight. In my opinion the two tests which I have enunciated cannot be qualified or extended so as to embrace any such considerations. ... In the case of Plummer V. Wildman ^ the unloading of the cargo, which was necessary for the repairs, was charged to general average, but in that case the repairs, owino- to an antecedent sacrifice which neces- sitated them, were themselves held to be general average. I n the case of Hall v. Janson '^ {supra), where the unloading was spoken of as charge- able to general average, the question at issue in the action was as to the liability to con- tribute not of cargo but of freight. . . . The goods having been landed, there is an end of all danger common to ship and cargo. Items of expenditure subsequently incurred cannot be brought into general average on the ground that they are general average sacrifice in them- selves, for the hour of danger and of sacrifice I3M.& 5,483. 24E. &B. 500. 28 is over. They can only become so chargeable if it can be shown that they are part of the loss which some antecedent act of sacrifice entails. . . . Prima facie warehousing the cargo is a charge that ought to be borne by the cargo, which benefits exclusively by it. It may con- ceivably, in some cases, have been rendered necessary by an antecedent sacrifice, so as to fall within the definition of the loss caused thereby. . . . Reloading is not an act of sacri- fice, for long before it occurs both ship and cargo are safe. . . . Where, for example, a ship has cut away a mast and has put into port to repair the damage so caused, and been compelled, in order to repair this special damage to unload and to reload the cargo, it may follow, accord- ing to the decision in Atwood v. Sellar {ante), that such expenses are all part of the loss involved in the original sacrifice. . . . The principle of law that appears to be the basis of the decision in Atwood v. Sellar is that a general expenditure directly caused by a general average sacrifice is part of the loss that it entails, and becomes the subject of general average contribution." In the case of Hendricks v. Australasian In- surance Company^ the question was whether 'L.R, 9C.P, 460, 29 the defendants were bound to pay a particular average loss upon an insurance effected with them in these terms : " To cover only the risks excepted by the clause ' warranted free from particular average, unless the vessel be stranded, sunk or burnt '. To pay all claims and losses on Dutch terms and according to statement made up by official dispacheur in Holland; being warranted free from particular average unless amounting to lo per cent, on each series." In giving judgment in that case the late Lord Coleridge, C.J., said (inter alia) : A policy of this nature "is to be construed as if it had stood alone. Whether the words do or do not imply the existence of another policy effected on the same goods is quite immaterial; such other policy, if there be one, not being so in- corporated into the policy sued on as to affect this contract. If the words had stopped at 'stranded, sunk or burnt,' it would not be a loss within the terms of the policy sued on. The policy then would have covered only the risks excepted by the well-known clause in English policies, and the only claim the as- sured would have had would have been par- ticular average where there had been a stranding, sinking or burning. But the words which follow — ' to pay all claims and losses on Dutch terms. 30 and according to statement made up by official dispacheur in Holland' — would have no mean- ing ijnless they are incorporated with, and govern the interpretation of, the earlier words. . . . The whole of the sentence must be read together." The words in a bill of lading, ''average, if any, is to be adjusted according to British custom^' have, in one case, been held to mean that whether or not the loss was, according to the general law of England, the subject of general average con- tribution, plaintiff, by the terms of the bill of lading, had made the admitted practice of aver- age adjusters part of the contract, and he was bound by it although erroneous.^ In Maidne Insurance Company [Ltd.) v. China Transpacific Steamship Company [Ltd.),'^ which was originally heard before a Divisional Court, the policy was on a ship valued in the policy, with a clause that in case of an average loss, if the loss was under 3 per cent., or did not exceed 3 per cent., the underwriter was not to be liable. The actual words of the warranty were "free from average under 3 per cent ". The facts were these: On the 2nd April, 1874, the plaintiffs caused themselves to be insured by the de- ^See Stewart v. West India and Pacific Steamship Co., L.R. 8 Q.B. 88, 362. 2 II App. Cas. 573. 31 fendants upon the hull of their steamship, Van- couver, valued at ^70,000 for twelve calendar months ending on ist March, 1875. The plaintiffs sought to recover a particular average loss under the policy. In February, 1875, the Vancouver, whilst on a voyage from Hong Kong to San Francisco, encountered very heavy weather, and her stern-post was then broken by the sea causing a leak in her after- compartment. The fracture of her stern-post was not known or suspected at the time it occurred, nor until she was in dry dock, and the leak was attributed to other causes. She sus- tained at the same time some other slight damage by perils of the sea. On her arrival at San Francisco, on the i8th February, the cargo was discharged, and she then ceased to make water. At the time when the above-mentioned damage was incurred the vessel had a very foul bottom, which so much affected her speed that no prudent owner would have sent her to sea again, without having her first scraped and cleaned, and it was to be taken as a fact in the case, that she would not have put to sea again after her arrival at San Francisco on the i8th February, without being first put into dry dock and then scraped and cleaned. The Vancouver lay in San Francisco Bay without employment 32 until January, 1876, when her bottom having become excessively foul, her owners (the plain- tiffs), determined to put her into dry dock for the purpose of having her cleaned, scraped and painted, and for that purpose only. The Vancouver was put into the graving dock at San Francisco on the 4th January, 1876, and on the afternoon of that day a survey was held upon her as soon as she was dry, with a view to examine the state of her bottom, and of the coating under water. The surveyors then dis- covered that her stern-post was broken about thirty inches above the keel, and recommended its repair. It was accordingly repaired in dry dock with all reasonable speed and economy, and the vessel was discharged from dry dock on the nth January, repaired, cleaned, scraped and painted. Had she required nothing but cleaning, scraping and painting, she might have been discharged on the evening of the third day. The repairs alone without cleaning, etc., would have taken the whole of the eight days {i.e., from the 4th to the nth January inclusive). It was admitted that an average loss had occurred by reason of damage to the ship by a sea peril. That loss had been repaired, and it was not denied that all that was done in the repair of the loss was reasonably done. 33 The question was, whether by reason of the clause ["free from average under 3 per cent."] in the policy, the underwriter was nevertheless free because it was alleged that the loss did not amount to 3 per cent, as compared with the value of the ship named in the policy. In giving judgment in that case Lord Esher, M.R., said {inter alia) : " The way to find out, to my mind, whether the ,loss amounts to 3 per cent, or not within the condition, is to find out what the loss is, irrespective of any considera- tion of the 3 per cent, clause. If you find that the loss to the assured would have been less than 3 per cent., as compared with the value in the policy, the underwriter is not liable at all. If you find that the loss exceeds 3 per cent., then the condition is fulfilled, and the underwriter has to pay the whole of the average loss. Therefore the question here must be, what was the loss to the assured in respect of the sea damage, con- sidering it as if the 3 per cent, clause was not in the policy ; that is, we must arrive at what was the real loss first. ^ Generally, where there is a partial loss in consequence of an injury to a vessel by perils insured against, and the ship is actually repaired by the shipowner, then the sum which the ship- ^Per Lord Esher, M.R., in ib., C.A. at pp. 576, 577. 3 34 owner is entitled to recover, is the amount properly expended in executing the necessary repairs less the usual allowances. Therefore, the only inquiry in such a case is, What is the amount to be deemed properly expended for executing the necessary repairs ? " When the circumstances are such that there are two persons, each of whom has a distinct object in view which he can only accomplish at a certain expense, and, if both of these persons concur together, they can each accomplish their sepa- rate object at the same expense as would have been incurred by each of them if they had done it separately, then it appears to me, the simple ordinary rule — the rule of justice and equity — is, that the total expense which has been incurred, by their doing their acts together, and which would have been incurred by each if they had done it separately, shall be divided between them. This appears to me to be one of the cases to which the well-known maxim that ' equality is equity ' applies, and, therefore, treating the assured in the present case as if they were two persons, it seems to me the reasonable thing is, to attribute one moiety of the dock dues for the three days to the enterprise of repairing the stern-post."' >P«r Fry, L.J., in ib, at p, 583, 35 The House of Lords affirmed the decision of the Court of Appeal, and held that although a contract of marine insurance is a contract of indemnity, and though the result would be that the shipowners would be relieved of part of the dock charges which they would have had to pay themselves, they were entitled to have the dock charges for the first three days divided between the repairs on the one hand, and the cleaning, scraping and painting on the other, that the division should be one-half to each purpose, and that there had therefore been a partial average loss exceeding 3 per cent. Where, in the opinion of the master of a ship, the scuttling of the ship will be for the benefit of both ship and cargo, and he does scuttle her, such scuttling will constitute a general average act.^ In the Alsace Lorraine''' a special memo- randum was contained in the policy, in these terms : " Warranted free from particular average unless the ship be stranded . . .". The strand- ing took place at a time when the insured goods were not on board the vessel. It was held that the defendants were not liable. In the case of the Anglo- Argentine Live Stock and Produce Agency v. Temperley Shipping Com- ' See Papayanni v. Qyampian S.S. Co., i Comm. Cas. 448. 2[i8g3]P, 209. 36 pany^ it was decided that the depreciation of live stock shipped on board a ship for carriage from Buenos Ayres to Deptford was a loss which the plaintiffs were entitled to have made good in general average. The facts of that case were, shortly, as follows : The plaintiffs, in April, 1898, shipped on board the defendants' steamer, Eden- bridge, at Buenos Ayres a deck cargo of sheep and cattle for carriage to Deptford. The con- tract of carriage stipulated ( i ) that the steamer should on no account call at any Brazilian or Continental ports before landing her live stock ; and (2) that average (if any) should be adjusted according to the York- Antwerp rules.'' The reason for the insertion of the first of these stipulations was that by an order made under the provisions of the Diseases of Animals Acts, 1 894 and 1 896, foreign animals cannot be landed in the United Kingdom if the steamer convey- ing them has touched at Brazilian or continental ports on her voyage. The loading of the vessel finished on 15th April, and on that day she left Buenos Ayres. On the 20th April it was discovered that the vessel was making water from a leak below the water-line, and for the safety of all concerned the captain put into Bahia, arriving there on 27th April. The put- ' [1899] 3 Q.B. 403. " See Appendix. 3; ting into Bahia was a general average act. Bahia being a Brazilian port, the ultimate land- ing of the cattle at Deptford was, by this general average act, rendered impossible ; and the plaintiffs, having thus lost their English market, acted for the best by making arrange- ments for the carriage of their cattle to Antwerp. The cattle were, accordingly, carried to Ant- werp, where they were sold at a much less price than they would have realised if they had been carried to and delivered at Deptford. The repairs to the vessel were done at Bahia between 27th April and 12th May. On 12th May she sailed for Antwerp, and arrived there on 7th June. The plaintiffs incurred a large loss by reason of their cattle having been ren- dered incapable of being landed at Deptford. They were also put to the expense of maintain- ing their cattlemen, and of providing fodder and water for the cattle, while at Bahia. The ques- tions in that case were whether any, and if so, which of these losses formed the subject of general average contribution, and it was de- cided as above stated. In giving judgment in that case, Bigham, J., said (inter alia) : "As to the damage sustained by putting into Bahia, I think it is recoverable in general average. It is the direct and immediate consequence of the general average act." CHAPTER IV. GENERAL AVERAGE CONTRIBUTION. Lien for contribution and Average : Hallet v. BousflM — Shipper of goods may recover contribution against another shipper : Dobson V. Wilson — Where privilege reserved to owner of goods, he may claim contribution from shipowner : Gould v. Oliver — Contribution in respect of advanced freight : Frayes v. Worms — Contribution in respect of spars, wood, extra coal and injury done to donkey-engine : Harrison v. Bank of Australasia — Contribution in respect of services rendered to cargo : Hingston v. Wendt — Liability to con- tribute, what it depends upon : Strang, Steel & Co. v. Scott — Obligation to contribute may be limited, qualified or ex- cluded by special contract — The persons liable to pay General Average contribution — Where contribution not affected by negligence of shipowners' servants : The Carron Park — When claim for contribution cannot be maintained — The two well-established exceptions to the rule of contribution : Whitecross Wire and Iron Co. {Ltd.) V. Savill & Co. — 5.5. Balmoral Company {Ltd.) v. Marten. Theke may be a lien upon the goods of each freighter for contribution and average ; that is, the master of a vessel is not bound to part with any of the cargo until he has security from each for his proportion of the loss, but there is no authority for stating that he has a lien to the extent of entitling him to call on every person (38) 39 to give security for the amount of their contri- bution, when it shall be adjusted.^ In Dobson v. Wilson ^ it was decided that an action may be maintained to recover a contribu- tion in the nature of general average by one shipper of goods against another. A court of equity, may, perhaps, be a more convenient forum for adjusting the claims of the different parties concerned ; but if a shipper of goods which are sacrificed for the salvation of the rest of the cargo is entitled to receive a contribution from another shipper, whose goods are saved, such shipper may recover against the other. This is a legal right, and must be accompanied with a legal remedy. The difficulty of showing by strict evidence the exact amount of the con- tribution is great ; but if there are data upon which it may be calculated with great certainty, there can be no objection to the action. The plaintiff by proceeding at law takes that difficulty upon himself, and if he is not prepared to over- come it, he cannot succeed. A jettison to lighten the ship is not the only foundation of general average ; but it must arise from that or something analogous. The distinction between general and particular average would otherwise be entirely abolished ; and the shippers of goods 1 See HalUt v. BousfieU, 18 Ves. 187. ^3 Campb. 480. 40 would be called upon to contribute to losses from which they would derive no benefit, and which should fall exclusively on the shipowner. Where the master of a ship in a foreign port was arrested by process issued out of a court of justice at the suit of the agent of the ship, for sums of money the latter had disbursed on her account, and the master not being able to raise money by other means, that he might procure his liberation and pursue the voyage, sold part of the cargo, it was held that the owner of the goods so sold had no right to a contribution in the nature of general average from the shippers of the other goods on board which arrived safely at the port of destination. A claim for general average cannot arise from an act done to redeem the master of a ship from imprisonment, if any part of the plaintiffs goods were sacrificed for the safety of the ship and the residue of the cargo, in such a manner as to give them a right to a contribution from the other shippers of goods on board. Their proper remedy is against the owner of the ship. In Gould ST. Oliver'^ the question was whether where the shipowner has laden the goods on deck under a privilege reserved to him by the general usage and practice of the voyage, the i4Bing. N.C. 134. 41 owner of the goods may claim contribution from such shipowner. It was held in that case that the owner was so entitled. All who are interested in a marine adventure must conti-ibute to the expenses incurred for the joint benefit of the ship and cargo. The owners of the ship, the freight and the cargo are liable to contribute, each to the extent of what he has at stake. In Frayes v. Worms'^ the claim was in respect of ;^4,8o7 advanced freight on a charter-party, which was not to be returned. It was decided that under such cir- cumstances the charterer had an interest in the ship and in the value of the goods increased by the amount of the freight advanced. The general rule is, that the charterer is liable to contribution for general average in respect of advances on freight. In Harrison v. Bank of Australasia ^ the real question was, whether the shipper (the merchant) was bound by law to pay to the shipowner, for the performance of the service contracted for in the bill of lading, a sum of money beyond that stipulated for in the written contract between the parties. The plaintiff claimed from the defendants a general average contribution in respect of (i) spars and wood, 1 19 C.B. N.S. 159. = L.R. 7 Ex. 39. 42 (2) extra coal and (3) an injury done to the donkey-engine. The ship prior to sailing was expressly found to be seaworthy, and had on board a sufficient stock of coal for an ordinary voyage. She sailed from Melbourne for London, encountered bad weather, during which she strained, made much water, and continued after- wards to leak ; pumping was resorted to, in order to keep the water under, and for this purpose it became necessary to use the engine, without which the ship could not have been kept afloat. As the stock of coals was almost ex- hausted, the captain, in order to obtain fuel, directed the spars and wood above mentioned, which were part of the ship's stores, to be cut up to be burned with the remainder of the coal. Wood alone would not have sufficed to get up the steam. Some coal was obtained from a passing steamer, but this quantity was found insufficient, and the vessel put into port in order to obtain a further supply. The vessel was exposed to no serious risk from the water she made while there was enough fuel to work the engine. The Court, consisting of four judges, was equally divided in opinion. In one case,' a shipping agent was put into possession of a stranded ship by her captain, ^Hingston v. Wendt, 3 Asp. Mar. Cas. ia6. 43 and by his order rendered services to, and paid money for, the cargo. The ship broke up and was sold as a wreck. It was held, upon appeal, that the agent had a lien upon the cargo for his charges. General average is founded on the Rhodian law. Its principle applies, and it has been applied to all cases of voluntary sacrifice for the benefit of all, that is, if properly made.^ The liability to contribute does not form any part of the contract to carry, nor from any contract at all, but (as has just been pointed out) from the old Rhodian law, and has become incorporated into the law of England as the law of the ocean. It is not as a matter of contract, but in consequence of a common danger, where natural justice requires that all should contribute to indemnify for the loss of property which is sacrificed by one in order that the whole adventure may be saved. " The principle upon which contribution becomes due, does not appear to differ from that upon which claims for recompense for salvage services are founded. ... In jettison, the rights of those entitled to contribution have their origin in the fact of a common danger which threatens to de- stroy them all ; and these rights and obligations ' See Anderson v. Ocean S.S. Co., lo App. Cas. 207 at p. 114 ; see also Aitchison v. Lohre, 4 App. Cas. 755. 44 are mutually perfected wherever the goods of some of the shippers have been advisedly sacri- ficed, and the property of the others has been thereby preserved." ^ The obligation to contribute depends not so much upon the terms of any particular instru- ment as upon a general rule of maritime law. The obligation may be limited, qualified or even excluded by the special terms of a con- tract as between the parties thereto. Many variations there are, however, in the laws and usages of different nations as to the losses that are considered to fall within the principle of general average. But on one point all agree, namely, the place at which the average shall be adjusted, that is, the place of the ship's destina- tion or delivery of her cargo ; and it seems that they are all agreed on another point, namely, that the master is not compellable to part with the possession of goods until the sum contributable in respect of them shall be either paid or secured to his satisfaction. The persons liable to pay general average contribution are (i) the cargo owner; (2) the shipowner, and (3) the charterer. Unless the consignee of cargo is the owner of the goods, or ^Per Lord Vi^atson in Strang, Steel & Co. v. Scott [1889], 14 App. Cas. 608. 4S has undertaken to pay general average under the bill of lading, or has had notice from the captain of his average lien, he is not liable to pay general average contribution. The right to general average contribution is not affected by the negligence of a shipowner's servants (where there is an exception in the bill of lading of the negligence of the master and crew), and he (the shipowner) is entitled to re- cover contribution/ " The claim for contribution as general aver- age cannot be maintained where it arises out of any negligence for which the shipowner is responsible ; but negligence for which he is not responsible is as foreign to him as to the person who has suffered by it." ^ The amount of contribution must depend on the actual value of the goods jettisoned. The rules as to contribution and adjustment depend upon the probable state of things at, and have reference to, the time and place of adjust- ment, that is to say, when and where the adjustment ought to take place. If the goods jettisoned were in such a condition that they ^ See the Carron Park, 15 P.D. 303. ^ Sir James Hannen in ibid., at p. 207 ; see also, Millburn v. Jamaica, Fruit Importing and Trading Company of London [1900], z Q.B. 540, 46 would in all probability have arrived undamaged at the place of adjustment, apparently, there would be no reason why their value at the time of the jettison should not be taken. An English contract must be governed in point of construction by the law of England, unless the parties are to be understood as having contracted on the footing ,of some other known general usage amongst merchants relative to the same subject and shown to have obtained in the country where, by the terms of the contract, the adventure is made to determine, and where a general average (if such, by reason of the events of the voyage, be claimed), would, of course, come to be demandable. The general average, to which alone the underwriters' indemnity is confined, is general average as understood by the law of England. There are two well-established exceptions to the rule of contribution for general average. The first exception is when a person, who otherwise would have been entitled to claim contribution, has, by his own fault, occasioned the peril which immediately gave rise to the claim, it would be manifestly unjust to allow him to recover from those whose goods are saved, although he may be said, in a particular sense, to have benefited by the sacrifice of his pro^ 47 perty. In any question with them he is a wrong-doer, and, as such, under an obligation to use every means within his power to ward off or repair the natural consequences of his wrongful act. He is not entitled, in any sense, to payment for his services, or to an indemnity for losses sustained by him, in the endeavour to rescue property which was imperilled by his own wrongful act, and which it was his duty to save. The second exception is in the case of deck cargo. The reason is obvious why relief by general contribution is denied to the owners of goods stowed on deck, when these are thrown overboard in order to save the cargo under hatches. "According to the rules of maritime law, the placing of goods upon the deck of a sea-going ship is improper stowage, because they are hindrances to the safe navigation of the vessel ; and their jettison is therefore re- garded in the question of the other shippers of cargo as a justifiable riddance of incumbrances which ought nevei^ to have been there, and not as a sacrifice for the common safety. But the owner of deck goods jettisoned, though not entitled to general contribution, may neverthe- less have a good claim for indemnity against the master and owners who received his goods for carriage upon deck, and this exception does 48 not apply either in (i) those cases where, ac- cording to the established custom of navigation, such cargoes are permitted, or (2) in any case where the other owners of cargo have consented that the goods jettisoned should be carried on the deck of the ship." In Whitecross Wire and Iron Co. [Ltd.) v. Savill & Co} the action was brought by owners of cargo against shipowners to recover a general average contribution. The plaintiffs were con- signees of certain fencing wire which was shipped on board a vessel called the Himalaya, an iron ship belonging to the defendants, to be carried from London to Wellington in New Zealand. The Himalaya sailed from London on 7th October, 1876, and arrived at Wellington towards the end of January, 1877. She went alongside a wharf to discharge her cargo which consisted of about 1,400 tons. On the i6th February, early in the morning, a fire broke out in the hold. All the cargo had then been discharged except between 50 and 100 tons. The plaintiffs' wire was still on board. The ship being in danger, the captain ordered water to be poured down the hold, and by these means the fire was extinguished. The plaintiffs' wire was injured by the water which was poured upon it. At '4 Asp. Mar. Law Cas. 531, 49 the time of the fire the Himalaya drew about eleven feet of water, and the depth at the whdf f where she was lying was about twenty-two feet at high- water. It would, therefore, have been possible to extinguish the fire by scuttling her, and afterwards to raise her again. It was originally decided by Pollock, B., that the de- fendants were liable to a claim for general average contribution in respect of the loss sus- tained by the plaintiffs through pouring water on the wire, and gave judgment|for the plaintiffs. The defendants appealed. On appeal the judg- ment of Pollock, B., was affirmed and the appeal dismissed.^ In The Steamship " Balmoral" Company [Ltd.) V. Marten^ ship, cargo and freight had to con- tribute to general average and salvage charges. For the purpose of contribution the values of the ship, cargo, and freight at risk were ascer- tained. The value of the ship was taken to be ^40,000, being the amount at which it was valued in the salvage proceedings. Contribu- tion from the ship in respect of general average ^ See also Stewart v. West India, and, Pacific, S.S. Co., i Asp. Mar. Law Cas. 528, L.R. 8 Q.B. 88, 362 ; Schmidt v. The Royal Mail S.S. Co., 4 Asp. Mar. Law Cas. 217, 45 L.J. Q.B. 646; Atwood V. Sellar, 4 Asp. Mar. Law Cas. 283 ; a.nd Achard v. Ring, 2 Asp. Mar. Law Cas. 34, 31 L.T. Rep. N.S. 647. 2[igo2]A.C. 511. 4 so and salvage charges worked out at ^530 8s. 8d. That amount was claimed from the underwriters. It was held, that the underwriters were only liable for that proportion of the salvage and general average losses which the policy value bore to the proved value. CHAPTER V. FREIGHT AND GENERAL AVERAGE CONTRIBU- TION. Valuation of freight policy of insurance — How calculated : Forbes v. Aspinall — Contributory freight must contribute equally to General Average : Williams v. London Insurance Co. — Steamship Carisbrook Co. v. London and Provincial Marine and General Insurance Co. — Williamson v. Innes — Gibbs V. Grey — Cargo ex Galam — Vlierboom v. Chapman — The Soblomsten — Foley v. United Fire and Life Insurance Co. of Sidney — The Kathleen — Section 157 of Merchant Shipping Act, 1894, in regard to freight : Lee v. Southern Insurance Co. In Forbes v. Aspinall^ it was laid down by Lord Ellenborough that the valuation upon a freight policy of insurance is calculated upon all the goods the ship is intended to carry upon the voyage insured ; and if by a peril insured against the ship be lost when part only of the goods, the freight of which was intended to be covered, was on board, the valuation must be opened, and the assured can only recover for that proportional share. In Williams v. London Insurance Co.^^ the 1 13 East 323. » I M. & S. 318. (51) 52 facts were these : A ship was chartered from London to the East Indies, there to deliver her outward cargo, and return thence with a cargo for England into the Thames, and there make true delivery, etc. ; and it was agreed that the charterers should, upon condition that the ship performed her voyage and arrived in London, and not otherwise, pay freight for every ton of goods that should be brought home at so much per ton ; the vessel sailed on the voyage insured and in the course of her outward voyage incurred an average loss, but was repaired, and after- wards performed her voyage and the freight was received. It was held that the freight was liable to contribute to general average, and that the underwriter was entitled to deduct in respect of such contribution. " If it is once established that freight is contri- butory, the freight saved must equally contribute to the general average, whether the policy be upon the whole or only part of the voyage." ^ "When part of a cargo is sacrificed for the preservation of the rest, it becomes a subject of general average, and all the parties whose property is thereby preserved- are to contribute. Here the plaintiff had a vested right of freight, he had some freight then actually due, and the ' Per Le Blanc, J., in ibid, at p. 336. S3 whole was put in hazard, and the whole has been ultimately earned. . . . This freight was one entire and indivisible sum payable for the use of the ship out and at home, therefore when ulti- mately earned, having been put in hazard and saved, it ought to contribute." ^ If a ship is in a condition to begin to take in her homeward cargo a plaintiff is entitled to recover freight.^ The master of a vessel has no authority to substitute or create a lien upon the cargo for dead freight. In Gittps V. Grey^ a cargo of guano was shipped from the Chincha Islands to London by the Oriented The Oriente having become dis- abled, put into Valparaiso, was condemned and her cargo taken out of her. The master " for account and risk of the owner of the cargo," chartered the Fairy Queen to take on the cargo brought by the Oriente, being 470 tons more or less, " not exceeding what she can reasonably stow" at the rate of ;^5 2s. 6d. per ton. The owner of the cargo had an agent at Valparaiso, ip«r Bailey, J., in ibid. The decision in this case was followed in Steamship Carisbrook Co. v. London and Provincial Marine and General Insurance Co. [igoi], 2 K.B. 861. 2 See Williamson v. Innes, i M. & R. 88 at p. 89, per Lynd- hurst, C.B. 32 H, & N. 22. 54 of which the captains of the Oriente and the Fairy Queen were aware, but no reference was made to him. After the guano had been loaded on board the Fairy Queen the master of that vessel saw that he had not more than 350 tons on board, and ultimately the master of the Oriente agreed that freight should be paid on the full quantity of guano mentioned in the charter-party, and in order to carry out the agreement a bill of lading was signed by the master of the Fairy Queen, making the guano deliverable to M. & Co., the agents for the general average settlement of the Oriente or their assigns, he or they paying freight for the guano as 470 tons, as per charter-party. It was held (i) that the master of the Oriente had no power to bind the owners of the cargo to pay the freight mentioned in the bill of lading, and (2) that the charter-party contained no warranty that the cargo amounted to 470 tons more or less ; and therefore the owners of the cargo were not liable under the charter-party for not loading a full cargo. According to English law, where a vessel becomes disabled at an intermediate port, the master is allowed a reasonable time within which to re-ship or tranship, so as to earn his freight. The whole freight is payable, if by default of the 55 owner of cargo the master is prevented from forwarding the cargo from the intermediate port to its destination/ No freight is payable if the owner of cargo against his will is compelled to take the cargo at an intermediate port. To justify a claim for pro rata freight there must be a voluntary acceptance of the goods by their owner at an intermediate port in such a way as to raise a fair inference that the further carriage of the goods was intentionally dispensed with.^ In the case of the Soblomsten^ the vessel was chartered at a port in Sweden to carry a cargo of deals to Bordeaux, freight being payable on delivery. She became disabled, and was towed into an English port by three smacks, a salvage action was instituted and the vessel was arrested by order of the Court. The master employed shipbrokers at the port as agents for the owners of the vessel ; and through the agent for the Norwegian Lloyds Association, instructed proc- tors to enter an appearance in the salvage action for the owners of the ship and the cargo. Notice was sent by the agents and by the proctors to the owners of the cargo, informing them of the condition of the ship, and that the cargo would " See Cargo, ex Galam, Br. & Lush. 167. 2 Vlierioom v. Chapman, 13 M. & W. 230. ='L.R. I Ad. & Ecc. 293. 56 be sold, but no instructions were received from them. The cargo was discharged, and the vessel being found not worth repairing the master and crew abandoned her. The cargo was sold by order of the Admiralty Court, and out of the proceeds of the sale a sum was awarded to the salvors. The vessel had been abandoned to the proprietors of the graving dock. On a motion by the owners of the vessel for payment of freight pro rata out of the balance remaining in the registry, it was held ( i ) that the owners of the cargo having had notice that their cargo would be sold, had waived their right to have their cargo carried to Bor- deaux, and thereby impliedly promised to pay a pro rata freight; (2) that the proctors' costs were the first charge upon the fund in Court, and (3) that the agents employed at the port were entitled to such part of their charges as consisted of necessaries supplied to the ship, but not to such disbursements as were in the nature of general average expenses. The Court directed, first, that the proctors be paid their costs ; secondly, the agents their charges for necessaries, and, thirdly, the owners of the vessel their pro rata freight, less the claim of the agents for necessaries. In Foley v. United Fire & Life Insurance 57 Co. of Sydney^ the plaintiff had insured certain chartered freight " at and from Mauritius to rice ports, and at and thence to a port in the United Kingdom ". A total loss had occurred, the ship having been by a peril of the sea destroyed some little time after her arrival at Mauritius, but before the cargo which she had brought from Calcutta was completely discharged. It was insisted on the part of the insurers that the loss was not within the policy. The question turned upon the construction of the words " at and from ". Where freight is insured " at and from " a given port, it is insured as long as the snip is at that port. There can be an effective insurance on freight to be earned on a voyage from a given port, as soon as the ship is in a condition to receive goods on board. " The real doctrine is this : if the voyage by means of which the chartered freight is to be earned has commenced, there is an inchoate interest in the freight, and the risk attaches, provided the language of the charter, taken with the policy, will warrant that view of the case."^ It was decided that the words "at and from" in their ordinary signification included the whole period the ship was actually at Mauritius ; that the risk on the policy attached 1L.R. 5C.P. 155. ^ Kelly, C.B., in ibid,, at p. 160; see, also, Thomson v. Taylor, 6 T.R. 478, and Barber v. Fleming, L.R. 5 Q.B. 59. 58 upon the arrival of the ship at Mauritius, and that the assured was therefore entitled to recover. Where a vessel is abandoned the contract to pay freight is dissolved and the owners of the vessel are not entitled to any payment in re- spect of freight. 1 At the present day the right to wages does not depend on the earning of freight ; and every seaman and apprentice who would be entitled to demand and recover any wages, if the ship in which he has served had earned freight, will, subject to all other rules of law and conditions applicable to the case, be entitled to demand and recover the same, notwithstanding that freight has not been earned ; but in all cases of wreck or loss of the ship, proof that the seaman has not exerted himself to the utmost to save the ship, cargo and stores, will bar his claim to wages ; and where a seaman or apprentice who would, but for death, be entitled to demand and recover any wages, dies before the wages are paid, they shall be paid and applied in manner provided by the Merchant Shipping Act, 1894, with respect to the wages of a seaman who dies during a voyage.^ 1 See the Kathleen, L.R. 4 Ad. & Ecc. 269. "See sect. 157 of the Merchant Shipping Act, 1894, amend- ing sects. 183 and 184 of the Merchant Shipping Act, 1854. 59 Where a shipowner has incurred expense for the purpose of preventing a loss of freight, he is entitled to recover, under the suing and labour- ing clause, so much of such expense as is reasonably incurred/ ' See Lee v. Southern Insurance Co., L.R. 5 C.P. 397. CHAPTER VI. JETTISON AND GENERAL AVERAGE CONTRIBU- TION. There must be common danger and intentional sacrifice : Milward v. Hibbert — Miller v. Titherington — Johnson v. Chap- man — Wright V. Marwood — Fletcher v. Alexander — Burton V. English — Contribution in respect of jettisoned cargo founded upon danger to ship and cargo : Royal Exchange Shipping Co. (Ltd.) v. Dixon & Co. —Scaife v. Tobin — Ralli V. Janson — Hopper v. Burness. In order to make jettison the subject of a general average contribution two conditions must be ful- filled. First of all, ^Aere must be common danger ; it must be a maritime peril, and it must be common to the whole adventure. And, secondly, there must be a sacrifice in the sense of inten- tional sacrifice. A custom that the jettison of goods stowed on deck shall not bind the shipowner to contri- bution to general average, or a custom that it shall not entitle him, in case of his so contribut- ing, to recover the amount from the underwriter on the ship, is bad because it does not limit the custom to cases where the party discharged is ignorant of the mode of stowage. In Milward (60) 6i V. Hibbert^ the action was brought by the owner of a steam vessel against the underwriter upon a policy on the vessel for time. Certain pigs were thrown overboard for the safety of the vessel, and the plaintiff was afterwards forced to contribute to the general average. It was pleaded that the pigs were laden on deck, for which reason defendants were not liable to contribute to the average. It was held that such plea was bad, as it did not show that such lading was improper under the circumstances. A plea of a custom of trade in London may be supported by proof of a custom prevailing in London and other English ports. In Miller v. Titherington^'^ it was held that an usage and custom that underwriters are not responsible under the ordinary form of policy to general average by reason of the jettison of any timber stowed upon deck, is not inconsistent with the terms of such policy. It is, therefore, an answer to an action on the policy, to set up a plea of the custom and that the parties had notice of such custom and made the policy with reference to it. In Johnson v. Chapman^ the action was brought by the shipper of cargo against the shipowner for a general average contribution ^3Q.B. 120. 230 L.J. Ex. 317. ^ 19 C.B. N.S. 563. 62 in respect of a deck cargo (timber) which had been lawfully jettisoned in consequence of stormy weather, and which impeded the navigation and endangered the safety of the vessel. It was decided that the shipper was entitled to claim general average in respect thereof, as against the shipowner. But in Wright v. Mar- wood^ plaintiff shipped under similar circum- stances certain cattle as deck cargo on board the defendant's vessel, and the Court of Appeal decided that the plaintiff could not recover a general average contribution for the loss of the cattle. Jn the case of Fletcher v. Alexander^ the Court was asked to decide the principle by which the average stater was to be governed in esti- mating the general average contribution to be paid by the shipowner to the owner of the cargo in respect of goods jettisoned. It was held in that case that the general principle is, that where the goods of one are sacrificed for the general safety of the whole, all are to contribute according to the benefit they severally derive therefrom. "In the case of jettison, which is, where the goods of a particular merchant are thrown overboard in a storm, which may be lawfully done, to save the ship from sinking ; or ' 7 Q.B.D. 6a. •-= i L.R. 3 C.P. 375. 63 where the masts, cables, anchors or other furniture of the ship are cut away or destroyed for the preservation of the whole ; or where salvage is paid to re-captors, or money or goods are given as a composition to pirates to save the rest ; or where a ransom (when that was legal) was agreed to be paid to an enemy or pirate for liberating the ship ; or an expense is incurred in reclaiming her, or defending a suit in a foreign Court of Admiralty, and obtaining her discharge from an unjust capture or deten- tion ; in these, and the like cases where any sacrifice is deliberately and voluntarily made, or any expense fairly and bona fide incurred, to prevent a total loss or some great disaster, such sacrifice or expense is the proper subject of a general contribution, and ought to be ratably borne by the owners of the ship, freight, and cargo, so that the loss may fall equally on all." ^ The general principle thus stated is acted upon in all courts and in all countries ; but, in its application, different countries have adopted different rules. "In cases of general average, the things saved contribute, not according to the prime cost but according to the price for which they may be sold at the time of settling the average . . . and, with regard to the adjust- ' See Marshall on Insurance, 4th. ed., at p. 434. 64 ment at the port of destination, where the goods are delivered and freight earned, the goods are taken at that place, at their value, including the freight. If, however, after the jettison or the matter which is the subject of average has arisen, the remainder of the goods are totally lost, and so no benefit accrues to the owners of the other goods from the jettison, no con- tribution can be claimed. The whole law on the subject is founded on the principle that the loss to the individual whose goods are sacrificed for the benefit of the rest is to be compensated according to the loss sustained on the one hand and the benefit derived on the other." ^ Rules on the subject of average contribution which may be found in ordinary text-books are rules rather of convenience than of positive law. " Cost price, with shipping charges and premiums of insurance, will probably in most cases pretty accurately represent the value of the goods in an undamaged condition, where they are not carried to their destination. But, though that may, in most cases, be a very con- venient and correct rule, the amount of contri- bution must depend on the actual value of the goods jettisoned. Now, it is clear that the value of the goods at the time of the jettison ^ See Marshall on Insurance, 4th ed., at p. 503. 6s is not to be taken as the test, because, if the whole adventure is afterwards brought to an end by the loss of ship and cargo, there will be no contribution at all. The rules as to contribution and adjustment seem to me to depend upon the probable state of "things at, and to have reference to, the time and place of adjustment, that is to say, when and where the adjustment ought to take place. If the goods jettisoned were in such a condition that they would in all probability have arrived undamaged at the place of adjustment, 1 see no reason why their value at the time of the jettison should not be taken. . . . On the other hand, it may be that, if they had not been thrown overboard, they would not in all probability have arrived at their destination in a sound or sale- able condition. In the latter case, what would be the loss of the person whose goods were thrown overboard .■* Clearly not the value of the goods in a sound state." The principle appli- cable where loss has been sustained by the owner by the jettison is correctly stated by Mr. Arnould in the second volume of Arnould on Marine Insurance} He says, "If, after jettison of part, the rest of the cargo arrives in a damaged state, owing to causes which would equally have ' Third edition at p. 809. 5 66 affected the goods jettisoned had they remained on board, the amount at which the jettisoned goods should be contributed for is, the net sum they would have realised in a damaged state." This statement is entirely in accordance with what is said in the fourth edition of Marshall on Insurance} " The first price of a thing does not always afford a sure criterion to ascertain its true value. It may have been bought very dear or very cheap. The circumstances of time and place cause a continual variation in the price of things. For this reason, in cases of general average, the things saved contribute, not accord- ing to the prime cost, but according to the price for which they may be sold at the time of settling the average." If goods which are thrown overboard would have arrived at the port of destination in a damaged state their value for the purpose of contribution to general average must be taken to be what they would realise in such damaged state. However, this statement cannot be laid down as a rule of law, but it may be a good guide for the average stater. Assuming that the goods jettisoned arrive in a sound condition, either in whole or in part, the test is, to ascertain the value of the gQod§, In * Fourth editiori at p, 502. 67 dealing with a question of this kind regard must be had to the possibility that such goods might have been in such a condition as to make it worth the merchant's while to re-ship them as soon as the vessel was repaired and fit for the voyage. If that should appear to be the probable state of things, as the owner would not have sold the goods because their value was greater than their mere cost, and where freight has been paid upon them in advance, then a proportionate part of the pre-paid freight would seem properly to form an element in ascertaining their value for contribution. If the vessel was in such a condition that she could reasonably have been repaired so as to pursue her voyage, the proba- bility is that the goods, if undamaged, would have been re-shipped and carried to their port of destination ; and so at the port of departure they would have been increased in value by the shipping charges, the premium of insurance, and the freight paid. Assuming the owners of the goods jettisoned and of the goods saved to be different persons, the contribution must be ascer- tained, with reference to the amount of loss actually sustained on the one side and the benefit derived on the other, at the port of adjustment. If the principles above laid down are worked out by assuming the goods to have 68 belonged to several owners the average stater should have no difficulty in arriving at an ac- curate result. In a case which came before the Courts of Appeal in 1883, the plaintiffs, timber merchants, shipped on the defendants' vessel a cargo of timber, part of which was deck cargo, and also a cargo of iron, under different contracts. The ship had been chartered by the plaintiffs, but the goods were shipped under a bill of lading which referred to the charter-party. During the voyage part of the deck cargo was jettisoned for the safety of the vessel and rest of the cargo, and the action was brought for general average con- tribution against the shipowners, and it was con- tended that they were not liable by reason of a stipulation in the charter-party. The ship was not a general ship, but one which took only these two cargoes of iron and timber. A clause in the charter-party on which the defendants relied was as follows : " The steamer shall be provided with a deck load if required at full freight, but at merchants' risk ". It was obvious that this stipu- lation was in favour of the shipowners, for in order to earn a larger freight they required part of the cargo to be deck cargo, and then it was to be at the merchants' risk. If there were an im- proper jettison by the master and crew, this stipu- 6g lation would relieve the shipowners from liability. The general rule is that where there is any doubt as to the construction of any stipulation in a contract, the Court ought to construe it strictly against the party in whose favour it has been made. If the liability is in consequence of any act of any of the shipowners' servants for which the shipowner would be liable but for this stipulation, then it follows that the defendants are freed from liability. "... This stipulation would cover any act of the master or crew, which being done by them as servants of the shipowner, would otherwise make him liable ; it therefore covers the case of improper jettison ; also a loss caused by a collision or stranding owing to the negligence of the master or crew." ^ - The right to general average contribution in respect of jettisoned cargo is founded upon the danger to ship and cargo, to which both ship and cargo must contribute. The right, however, does not belong to the wrong-doers or their agents, whose acts have led to the jettison, in a case where a ship becomes stranded through the negligence of her master, placing ship and cargo in such imminent peril as to make it prudent and iSee Burton v. English, 12 Q.B.D. 218, ^er judgment of Lord Esher, M.R., at pp. 219, 220. 70 necessary to jettison part of the cargo to save the remainder and ship. Innocent owners of the jettisoned cargo are entitled to general average. It is otherwise with regard to the owners of the vessel, unless their ordinary relation to the shippers have been varied by contract.^ In Royal Exchange Shipping Co. [Ltd.) v. Dixon & Co.^ cotton was shipped on deck, under a practice by which owners of vessels trading between New Orleans and Liverpool were in the habit of stowing goods on deck in contravention of their contract with the shipper. All the bills of lading contained exceptions {inter alia) in favour of " jettison ". For part of the cotton the bills of lading contained the words " under deck ". During the voyage the vessel took ground, and in order to get her off, the captain properly jettisoned the cotton. It was decided (affirm^ ing the decision of the Court of Appeal) that it was absolutely immaterial, so far as it concerned the liability of the shipowner, whether the shippet" knew or was justifiably ignorant of the above-mentioned practice that whether the bills of lading did or did not contain the words "under deck," the cotton was carried in breach 1 See Burton v. English, 13 Q.B.D. 318, per judgment of Lord Esher, M.R., at pp. 319, 330. ^la App. Cas. II. 71 of the contract, and was not within the excep- tions specified in the bills of lading which had exclusive reference to goods safely stowed under hatches ; that the shipowners had there- fore no legal excuse for their failure to deliver ; that the cause of damage was not too remote ; and that the shipowners were liable to the indorsees for the value of the cotton. In Scaife v. Tobin > it was held that a consignee (not the owner) of goods receiving them in pur- suance of a bill of lading whereby the shipowner agrees to deliver them to the consignee, by name, he paying freight, is not liable for general average, although he has had notice before he received the goods, that they have become subject to the charge. But it seems that he would be so liable if the consignor had, by the bill of lading, made the payment of general average a condition precedent to the delivery of the goods. Where goods of the same species, shipped in packages, are insured, and it is not expressed by distinct valuation or otherwise in the policy that the packages are separately insured, the underwriters are exempt from liability for a total loss or destruction of part only (not being general average) if there be no stranding, '3 B. & Ad. 533. 72 though one entire package or packages be entirely destroyed, or otherwise totally lost by the specified perils/ The master of a vessel is not bound to deliver goods without some compensation for carrying them.^ A chartered a ship to B to carry cargo for freight payable on delivery at the port of destination. The master was compelled to sell part of the cargo at an intermediate port for necessary repairs. The price obtained was higher than it would have been at the port of destination. A having paid the proceeds of the sale to B, under an average statement, claimed freight pro rata itineris on the cargo sold. It was held that A was not compelled to pay such freight.^ ' See Ralli v. Janson, 6 E. & B. 432. ^2 See the Tentonia, L.R. 3 Adm. 394. 'See Hopper v. Burness, 3 Asp. Mar. Law Cas. 149. CHAPTER VII. SALVAGE AND GENERAL AVERAGE CONTRI- BUTION. Cases of the Dorothy Foster — The Westminster — The India — The Emma — The George Dean — The Galatea — The Jonge Andries—UM.S. Hayes — The EUora — The Fusilier— The Vesta — The Glenfruin. In the case of the Dorothy Foster'^ the facts were these : The ship was British, and she had sailed from Savannah Le Mar, in Jamaica, to Bluefields, in order to join convoy for England, and was in the course of that navigation captured by a French privateer, and recap- tured by persons who put off in a boat from the shore. A claim of joint salvage was advanced on behalf of a sloop that was in sight coming from Savannah Le Mar, but becalmed and incapable of getting up. The allegations of the different salvors having been set forth, the principle question turned upon the amount of the property liable to the payment of salvage, whether the freight was to be included in that estimate under the circumstances of that case. 1 6 Rob. 88. 74 It was contended on behalf of the recaptors that the voyage must be held to have com- menced ; that the ship had sailed from her clear- ing port ; that although she was proceeding to Bluefields for the purpose of joining convoy, such a provisional destination could not be taken as a suspension of the commencement of the voyage, since it might happen in propor- tion to the danger that was to be apprehended, that the precautions of taking convoy would be adopted at different periods in different voyages ; that the act of sailing was such an inception as would have given effect to any insurances that had been made ; and that it was to be con- sidered for every purpose as an actual com- mencement of the voyage. On behalf of the owners it was contended — that salvage was not to be given for the freight, since the actual voyage or progress towards the port of destina- tion had not commenced ; that the principle of salvage was to be applied only to property actually saved, and not to contingent earnings that might afterwards accrue from it ; that the voyage to England could not be said to have commenced, as the vessel was only on her course to join the convoy at Bluefields ; that it was immaterial to inquire whether insurance would have attached or not, since that was a ;s matter of contract merely, and would depend upon the terms of the policy ; an insurance might run from the time of shipment and while the vessel lay in port, but that the rules which governed contracts of that nature could be no guide for the Court in considering whether or not a salvage service had been effected as to the freight in that instance. In giving judg- ment, Sir William Scott said there were two questions to be considered, one related to the salvors, the other to the amount of the property on which salvage was to be awarded. As to the first, it appeared from the evidence of persons who were entirely disinterested, that the crew of the sloop could not have effected the recapture, since that vessel had been separated and was becalmed and could not have been got up. However active their in- tentions might have been, the wind did not favour their exertions. The actual captors were those who came off in a boat from the shore, by whose approach the instant terror was occasioned that intimidated the French, and compelled them to quit their prize — and those persons he pronounced to be the salvors. As to the second question, whether a salvage was due to the freight, that would depend upon another question of fact, whether the freight 76 was in course of being earned, because if the ship had commenced her voyage, and was enabled to earn freight and the freight was in course of being earned, freight would be in- cluded. Service rendered for the purpose of remov- ing cargo to a place of safety, assumes the character of salvage service/ Salvage is a reward payable for the benefit actually conferred in the preservation of property, and not for meritorious conduct alone. ^ In the case of the Emma^ it was laid down, as the ordinary usage of the Admiralty Court, that in all cases of salvage the whole value of the ship and cargo should be taken into considera- tion and brought in. In other words, in cases of salvage it is the usage of the Court of Admiralty to take the whole of the value of the ship and cargo and assess the amount of the remuneration upon the whole, each paying its due proportion. Furthermore, it is not compe- tent to the parties to allege that the services were of greater importance to the ship than they were to the cargo, and, therefore, that the ship should bear the greater burden, or vice versd. ' See the Westminster, i W. Rob. 329. 2 See the India, i W. Rob. 406. 'a W. Rob. 315. 77 Where salvage is concluded at one port, and the cargo is transhipped and brought to another and there sold, the salvors are only entitled to salvage on the value at the port where their services concluded.^ In cases where an engagement is made for a steamer to tow a ship from one place to another, the steamer is bound by that engagement to do all that is necessary to facilitate the safe voyage of the ship from the one place to the other ; and she is to take the chance of bad weather, which may occasion delay and inconvenience. But she does not take the charge of the undertaking being entirely interrupted by the Act of God ; that is, from the state of the wind and weather being such as to compel her to abandon the original undertaking. In all cases of this de- scription, when from the state of the wind and weather the performance of the service origin- ally contracted for is prevented, a steam-tug is not at liberty to abandon the ship she has engaged to tow, but it is her duty to render all the assistance in her power to bring the ship to a place of safety, and that for so doing she is entitled to a salvage remuneration. It is the same with regard to a pilot while on board a ship ; he is obliged to remain in the service of that ' See the George Dean, Swab. ago. 78 ship, and if anything occurs beyond his ordinary duties as a pilot, he receives salvage remunera- tion.^ It should, however, be remembered that it is not every little thing that a man may do on board a ship that is to be construed as a salvage service ; but on the other hand, where pilot duties are construed into salvage services, salvage remuneration is awarded.^ When a steam-tug is engaged to tow, she is bound notwithstanding a merely temporary accident interrupting the service, and endanger- ing the vessel towed, to complete the agreed service with all reasonable skill and promptitude, and for so doing, the tug, if incurring no risk, is not entitled to salvage award. Express demand or express acceptance of salvage services actually performed is not necessary to entitle to salvage award ; but for services rendered without de- mand or acceptance, and indirectly only, no salvage is due.^ An action was brought by the owners, master, and crew of a vessel called the Juno for services rendered to a ship called the Ellora. The facts were these: On the nth of June, 1862, the Ellora, a screw steamer of 1,070 tons be- ' See the Galatea, Swab. 349. ^ See the Jonge Andries, Swab. 303. "See H.M.S, Hayes, i Lush, 395. 79 longing to the Peninsular and Oriental Navi- gation Company, then between Alexandria and Malta, and bound to Malta, Gibraltar and Southampton, carrying passengers and the mail, suddenly lost her screw, by the screw breaking off and sinking. By this accident her steam-power became entirely useless. The Ellora, which was in all respects fully equipped as a sailing ship, thereupon made sail. The weather was quite fine, but the wind was light and adverse. Between the time of the accident and the morning of the 14th June, the Ellora beat up to windward 130 miles. The steam- ship Juno then hove in sight, and signal having been made from the Ellora that she had lost her screw, the. Juno bore down. The Juno was bound with cargo to Hull, and it was then agreed between the masters of the two ships that \!ae. Juno should tow the Ellora to Malta. The Juno took the Ellora in tow, and on the 17th June the two ships reached Malta, the weather being throughout quite moderate. During the passage two outward-bound steamers belong- ing to the Peninsular and Oriental Company were met, the Ripen on the 1 5 th, and the Vectis on the 1 6th, and signals were exchanged. At some time of the passage, but when unknown, the Ellora was also passed by the Valetta, 8o another of the Company's Steamers, then bound from Alexandria to Malta. On the Ellora arriving at Malta, the mails were, by order of the post-office authorities, transferred from the Ellora to the Juno : the Juno conveyed them to Southampton and then completed her voyage to Hull. The value of the Ellora was ;^5o,ooo, the net passage money about ;i^5oo, and mail money about ;^950. The value of the Juno and her cargo was ;^35,ooo. The plaintiffs were awarded the sum of ^1,200.^ In the Fusilier !,'■ the principal question raised upon appeal was whether by the 458th and 459th sections of the Merchant Shipping Act, 1854,^ the owners of the cargo of a vessel to which salvage services have been rendered are liable to contribute to that portion of the claim of the salvors which arises from the saving the lives of the passengers on board the vessel. It was decided that they were liable to do so, that the words "persons belonging to such ship," include passengers, and that the value of the salvors' property endangered in the service does not limit their salvage remuneration to that sum. If an award given by magistrates for sal- ' See the Ellora, Lush. 550. ^ gj._ g^ Lush. 341. 'Now sects. 544, 545 of the Merchant Shipping Act, 1894. 8i vage services be reasonable, the Court will not disturb such award merely because the apportionment should be, in some slight degree, objectionable. The duty of the Court is to support such awards, so far as they are not ex- cessive nor inconsistent with general principles.^ In one case^ the bills of lading contained among the excepted perils " all and every the dangers and accidents of the seas and of navi- gation of whatsoever nature and kind ". A steamship laden with cargo became disabled at sea by reason of the breaking of a crank shaft, caused by a latent defect in the shaft, arising from a flaw in the welding which it was impos- sible to discover. Another vessel belonging to the same owners towed the disabled vessel to a place of safety. It was held in an action brought by the owners, master, and crew of the salving vessel, that they were entitled to salvage, and, also, that the exceptions in the bill of lading (above set out) had no application to a vessel not seaworthy at the time of sailing. ' See the Vista, 3 Hagg. 189. ^The Glenfruin, 10 P.D. 103. CHAPTER VIII. GENERAL AVERAGE EXPENDITURES. Preliminary observations : De Vaux v. Salvador — The Grati- tudine — Ship's stores : Price v. Nobk — Wages and pro- visions: Power V. Whitmore — Disbursements: De SilvaU V. Kendall — Injuries to new ship : Fenwick v. Robinson — ■ Repairs: Moss v. Smith — Ammunition: Taylor v. Curtis — Insurance on freight: De Vaux v. J'Anson — Cargo sold by master for repairs : Hallet v. Wigram — Towage : Job v. Langton — Loan : Hicks v. Shield — The North Star — Edwards v. Southgate — Granger v. Wilson — Hypothecation of ship, freight, and cargo : Duranty v. Hart — Expenses of ship : Kemp v. Halliday — Bottomry bond: The Hamburg — In- demnity : Duncan v. Benson — Coal : Wilson v. Bank of Victoria — Percentage : Dent v. Smith — Objections of prin- ciple : Agenoria S.S. Co. {Ltd.) v. Merchants Marine Insur- ance Co. {Ltd.) If any one is insured in the ordinary form his insurers will have to indemnify him for general average. No more contribution is exigible from the owner of a parcel of goods that is in- sured than from the owner of a parcel that is not insured. The contract of the shipowner is to carry the goods to their destination, and with perfect accuracy it may be said that " there is no doubt of the power of the master in law (but some as to what extent it goes), to bind the (82) 83 owner. The master is appointed for the pur- pose of conducting the navigation of the ship to a favourable termination, and he has as incident to that employment a right to bind his owner for all that is necessary." However, neither the owners of the ship nor their master have authority to bind the goods, or the owners of the goods, by any contract. The master has authority to make for his owners all disburse- ments which are proper for the general purposes of the voyage, and when once those disburse- ments are paid for, either by the master out of funds belonging to the owners which the master possesses, or by funds which the owners them- selves apply to discharge a contract which they either could not dispute because the master had bound them to make it or did not choose to dispute, the disbursement, in so far as it is a disbursement for the salvation of the whole adventure from a common imminent peril, may properly be charged to general average. But there is neither reason nor authority for saying that the whole amount which the owners of the ship choose to pay is, as a matter of law, to be charged to general average. Nor is it a ques- tion of law whether the amount of the sum charged as a disbursement was exorbitant or not. 84 In De Vaux v. Salvador^ 'Xki&c& was an insurance policy for time on a ship called La Valeur with the usual warranty as to average. The ship having come into collision with another ship, and proceedings being instituted for the damage done to the other ship, the matter was referred to arbitrators, who awarded that each ship should bear half of the aggregate loss. The action was brought for a general average contribution. The La Valeur on the settlement had to pay a balance to the other ship. It was held that this was not a loss for which the underwriters were responsible. The master of a vessel may hypothecate his cargo on freight for repairs, in a foreign port, such repairs being absolutely necessary to enable the ship to proceed on her voyage for the pur- pose of delivering the cargo according to the charter-party.^ In Price v. Noble^ the owners of a ship's cargo were held liable to contribution for ship's stores necessarily thrown overboard after a vessel was captured and while she was in the hands of an enemy. In Power \. Whitmore,^ wages and provisions of the crew, while a ship remained in port ' 4 Ad. & E. 480. ^ See the Gratitudim, 3 Rob. 340. '4 Taunt. 133. "4 M. & S. 141. 8s whither she was compelled to go for the safety of ship and cargo in order to repair a damage caused by tempest, were held not to be the subject of general average ; nor the expenses of such repair ; nor the wages and provisions of the crew during her detention in port to which she returned, and was detained there on account of adverse winds and tempest ; nor the damage occasioned to the ship and tackle by standing out to sea with a press of sail in tempestuous weather, which press of sail was necessary for that purpose in order to avoid an impending peril of being driven on shore and stranded. In De Silvale v. Kendall^ a charter-party agreement was entered into between the master of a ship called the Shannon and the freighter, the master to navigate the ship on a voyage from Liverpool to Maranham, in South America, and from thence back to Liverpool, upon cer- tain terms and conditions, and upon covenants on the part of the defendant for receiving and delivering an outward and homeward cargo, and for the performance of the voyage ; and there was, amongst others, a covenant that the ship should, at the commencement and during the continuance of the voyage, at the expense of her owners, be kept tight, staunch, and strong, and 1 M, & S, 37. 86 well and sufficiently fitted out, victualled^ and manned. In consideration of this the plaintiff covenanted with the defendant to despatch the vessel, to load on board of her at Maranham a cargo of cotton, and to discharge the same in Liverpool, and also that he should and would "pay or cause to be paid to the defendant, for the freight and hire of the vessel on the said voyage from Liverpool to Maranham, ^120 British sterling, and from Maranham to Liver- pool at the rate of i^A. per pound for cotton which should be delivered at Liverpool, such freight to be paid as follows, namely, ^120 for freight of the outward cargo to Maranham, and as much cash as might be found necessary for the vessel's disbursements in Maranham, to be advanced by the freighter, his agents or assigns, to the master, when required, free of interest and com- mission at the current exchange of the place, and the residue of such freight to be paid on delivery of the cargo in Liverpool. The ship arrived at Maranham where the .1^120 outward freight, and also ^192 for the necessary dis- bursements of the ship were paid or advanced by the freighter to the master ; and the ship received her homeward cargo and sailed for Liverpool, but during the voyage was captured, and, together with her cargo, was wholly lost 87 to the proprietors and never arrived at Liver- pool. It was held that the freighter could not recover the £ig2. The law of England in regard to a case of this nature is, that freight and wages strictly so called, do not become due until the voyage has been performed/ Nevertheless, the parties to a charter-party, may, by express stipulations, control the general operation of law. "If the charter-party be silent the law will demand a performance of the voyage, for no freight can be due until the voyage be completed. But if the parties have chosen to stipulate by express words, or by words not express but sufficiently intelligible to that end, that a part of the freight should be paid by anticipation, which should not depend upon the performance of the voyage, may they not so stipulate ? " Of course, the parties may in the charter-party so stipulate. " Wherever there is an express stipulation that the party who is entitled to freight shall be paid any portion of it in advance, there ought also to be an express stipulation that the party paying it shall be entitled to recover it back, if freight be not earned, if such be the intention of the parties." There must in every charter- party be some provision of that sort, for no ^ See Byrne v. Schiller, L.R. 6 Ex. 20. 88 new implied contract can be raised to that effect. In Fenwick v. Robinson^ the words of the insurance policy were "on a voyage from Bristol to New York, during her stay there, and back to her port of discharge". The question was whether the passage from New York to England was to be considered as a second voyage, or only as a part of the first. It was held that if a new ship is insured, and sustains an injury which requires her to be re- paired, the underwriter is not entitled to deduct one-third new for old as the whole must be considered only one voyage. In Moss V. Smithy the action was brought upon two separate policies of insurance, the one upon ship, the other upon freight, from Valparaiso to London. The ship was valued at ^10,000, and was insured from Valparaiso to England ; the freight valued at £i^,ooo was also insured by a separate policy. The ship — called the Alfred — having sailed from Valparaiso with a full cargo, consisting of 800 tons of merchandise, was compelled by stress of weather to put back to Valparaiso, damaged, where the master find- ing, upon survey, that to repair her so as to enable her to bring home the entire cargo '3C. &p. 333. "90.6.94. 89 would cost a sum exceeding the value of the freight, though less than the value of the ship when repaired, sold her. The question was whether this constituted a total loss of either ship or freight. It was decided that it did not constitute total loss of either ship or freight. A correct view of the English law on the subject of repairs may be summarised as follows : The course which would be adopted by a prudent owner, with reference to the value of the ship, or the value of the freight, or with reference to many other considerations is only introduced in this way : " Underwriters are responsible for losses arising from perils of the sea — for such perils as are mentioned in the policy. If the ship is actually lost by a peril of the sea, or any other peril covered by the policy, the assured may call it a total loss. If the ship sustains damage to such an extent that she cannot be repaired at all, that also is a total loss. It may be that the injury sustained by the ship is irreparable with reference to the place where she is ; for instance, the ship may have met with the disaster at a place where no workmen of requisite powers are to be met with, or where the necessary materials are not to be found, so that to repair her there is alto- gether impracticable ; and in such a case the 90 loss would also be a total loss. But, short of that, it may be that it may be physically possible to repair the ship, but at an enormous cost, and there also the loss would be total ; for, in matters of business, a thing is said to be im- possible when it is not practicable, and a thing is impracticable when it can only be done at an excessive and unreasonable cost. A man may be said to have lost a shilling when he has dropped it into deep water, though it might be possible, by some very expensive contrivance, to recover it. So, if a ship sustains such ex- tensive damage that it would not be reasonably practicable to repair her — seeing that the expense of repairs would be such that no man of common sense would incur the outlay — the ship is said to be totally lost." It is in that way alone that the question as to what a prudent owner would do arises. However damaged the ship may be, if it be practicable to repair her so as to enable her to complete the ad- venture, she is not totally lost. The ordinary measure of prudence which the English Courts have adopted is this : "If the ship, when re- paired, will not be worth the sum which it would be necessary to expend upon her, the repairs are, practically speaking, impossible, and it is a case of total loss. Now, in order to eon- 91 stitute a total loss of freight, ... the loss of freight must have arisen by reason of the total or partial incapacity of the ship to earn freight. I do not mean to say that there may not be a loss of ship or of freight. . . . If the ship was irreparably damaged — considering the damage to be irreparable in the view I have mentioned, and which I take to be well established — to the extent that she could not bring home any part of the cargo, then that would be a total loss of freight. If the ship was damaged to such an extent only as that she might have been repaired so as to have been able to bring home part of the cargo, but not the whole, then there would be a total loss of that part of the freight which the ship was thus incapacitated from earning." The judge may direct the jury, in cases such as the one under consideration, that if they think the ship could have been prudently and properly repaired, within a reasonable time and at a reasonable cost, so as to bring home the whole cargo, there would be no loss of any part of the freight ; but that if the ship could have been prudendy repaired, so as to bring home a part of the cargo only, but not the whole, then the plaintiffs would be entitled to recover as for a partial loss of freight. The question is, whether the damage to the ship was reparable or irre- 92 parable ; if the former, it was not a total loss ; if the latter, it was. The total or partial loss of freight must be incident to the loss of the ship. In Taylor v. Curtis^ expenditure of ammuni- tion in resisting capture by a privateer, damage done to the ship in the combat and the expense incurred in curing the wounded sailors were held not to be the subject of general average. In De Vaux v. J'Anson,"^ the plaintiff carried his own goods in his own ship under an insur- ance on freight, "at and from Calcutta, or any port or ports, place or places, all or any, and in any succession on the Coromandel Coast to any port or ports, place or places in Bourbon, upon any kind of goods or merchandises, etc., in the good ship or vessel called the La France ". A full cargo was purchased for the owner and de- posited in warehouses at a place distant about seven miles from Corringa, ready to be put on board. The ship was lost. The policy was declared to be " on ^i,ooo on the freight of the said vessel valued at ;^i,ooo". The first ques- tion was whether the interest of the assured in the subject-matter of insurance was properly described in the policy as freight ; the second question, if such description were sufficient in the policy, then, whether the interest of the assured 1 6 Taunt. 6o8. " 7 Scott 507. 93 in the subject-matter of the insurance had com- menced before the loss happened. It was held, in regard to the first question, that the established law was, that the assured under an insurance upon freight might recover the profits expected to be made by carrying their own goods in their own ship upon the voyage insured.^ As to the second question, it was decided that under the circum- stances stated in the case, the interest of the assured had commenced, and the policy had attached at the time the loss took place. There was a further point considered, and that was, whether the loss was occasioned by any of the perils insured against by the policy. The words in the policy were very large as it enumerated not only " perils of the sea," but " all other perils, losses and misfortunes, that had or should come to the hurt, detriment or damage of the subject- matter of the insurance," and it was held that it was a loss within the meaning of the policy. There can be no legal claim for general aver- age contribution where the master of a vessel has been compelled to sell part of the cargo for the purpose of executing repairs made necessary by ordinary perils of the sea. Such claim can only arise when part of the cargo is sacrificed in ' See Flint v. Flemyng, i B. & Ad. 45. order to preserve the rest from impending peril.* In Job V. Langton^ a vessel named the Snowden sailed from Liverpool with a cargo on board. She ran on shore, accidentally, on the coast of Ireland. In order to get her off, it became necessary to discharge the whole of her cargo, which was accordingly taken out of her and placed in store at Dublin. The ship was then got off by digging a channel for her, and employing a steam tug, and was towed to Liver- pool to be repaired. The cargo was shipped in another vessel, and forwarded to its destination. The question to be decided was whether the expenses incurred after the cargo was in safety, and of bringing the ship to a place to be repaired, could be made the subject of general average. The Court decided that by the law of England such expenses could not be made the subject of general average but must be charged to the ship alone. A charter-party was duly entered into between — — and . The material part of the charter- party was as follows : " London, 21st November, 1854. Charter-party. It is this day mutually agreed, between Messrs. owners of the good 1 See HalUt v. Wigmm, 19 L.J. C.P. 281. *6 E. & B. 779 ; but see Lidgett v. Secretan, L.R. 6 C.P. 616. 95 ship ^ Ai of the burthen," etc., "whereof is at present master, and now in and to be despatched from the 8th to the 12 th December next, and of , merchant, that the said ship being tight," etc, " shall with all convenient speed sail and proceed to and or so near thereto as she may safely get, and there load from the factors of the said affreighters a full and complete cargo of rice, in bags, or other lawful produce, the same to be brought to or taken from alongside at charterer's risk and expense, timber excluded," etc.; "and, being so loaded, shall therewith proceed to direct, or so near there- unto as she may safely get and deliver the same, on being paid freight as follows : ^5 5 s. per ton of 20 cwt. net rice delivered ; other goods, if any, in proportion according to the customary scale of tonnage ; 2s. 6d. per ton extra should the ship load at two ports. Cash for ship's disbursements to be advanced to the extent of ^300 free of interest, but subject to insurance, and 2^ per cent, commission, in full, of all port charges and pilotages as customary (the act of God," etc., "excepted). The master is to sign bills of lading at any rate of freight required by charterer's agents, without prejudice to this agreement. The freight to be paid, on unload- ing and right delivery of the cargo as follows : 96 say, in cash, less two months' interest, at £$ per annum, and, if required, ^300 to be paid in cash on arrival, less two months' interest. Forty working days are to be allowed," etc. .^300 was advanced by plaintiffs agents at for ship's disbursements. Neither plaintiff nor defendants insured in respect of this ^300. The ship left with a cargo for but was lost before reaching . The plaintiff claimed the pay- ment of the ^300 as a loan made to defendants ; the defendants tendered that amount but refused to pay more. The only question was whether this was a mere loan or an advance of freight. The Court held, that as it appeared from the charter-party that the advance was not a loan but an advance of freight the plaintiffs claim could not be maintained.-' Claims for general average contribution from a ship after adjustment made gives the owners of cargo no lien on the ship by the law mari- time. A personal debt for general average contribution arising in respect of an outward voyage is not enough for a bottomry bond on the ship for the voyage homeward.^ In Edwards v. Southgate^ it was decided that a shipping agent having a lien on the bill of 1 See Hicki v. SUM, 7 E. & B. 633. ' See the North Star, i Lush. 45. " 10 W.R. 528. 97 lading of goods he has shipped, may, if the lien is not satisfied before they have reached their destination, have the goods brought home in order to retain his lien on them, and is not liable to any action for so doing. In the case of the cargo ex Galam^ it was decided that where a shipowner is prevented by the act or default of the owner of the cargo, from carrying the cargo to its destination he (the ship- owner) has a possessory lien on the cargo for the entire freight, and for contribution to any general . average expenses incurred. In Granger v. Wilson^ the action was founded upon an alleged constructive total loss of a ship of which the plaintiffs were owners, and who claimed to recover the sum of ^16,000 insured from Bombay to Liverpool, in June, 1859, from the insurers. The ship encountered very severe weather off Alagoa Bay, and sustained such damage that it became necessary to put into Port Louis, in Mauritius, where she arrived on the 2 1st August. Notice of abandonment of the ship was given to the underwriters on 13th December, 1859. In the Court of Queen's Bench two questions were material to be es- tablished. That Court was of opinion in favour of the defendant on one of them, namely, that J Br. & Lush. 167. 24 B. & S. 9. 7 98 there was no constructive total loss ; they said nothing upon the question whether there was a notice of abandonment in time. From that judgment upon the first question there was an appeal. It was decided (two of the judges dis- senting) in regard to the first question (affirming the judgment of the Court of Queen's Bench) that there was only an average, and not a con- structive total loss. As to the second question, the majority of the Court held that the notice of abandonment was not in time. The question whether the master of a ship, , without funds, or credit, must communicate with the owners of the cargo before hypothecating the ship, freight, and cargo in order to enable him to pay the expenses of the necessary repairs of the vessel, is a question which can only be decided by the circumstances of each particular case.^ Where the master of a vessel has reason- able opportunity of communicating with the owners of the cargo, and receiving directions from them, it is his duty to endeavour to obtain such directions.^ In determining the question of constructive total loss it is material to take into account the liability, if any such exist, of the cargo and 1 See Durante v. Hart^ 2 Mqo, P.C, N.S, 389, ? §,C, 99 freight to make general average contribution towards the expenses of the ship.^ If a bottomry bond is made payable upon arrival at the vessel's port of destination in England, the question of its validity must be decided by the general maritime law as ad- ministered in England, and not by the law of the ship's flag or the law of the place where the bond was executed. The master is under no obligation to tranship the cargo if it is possible to repair the ship at the port of distress. The master has no authority to hypothecate the cargo if he can communicate with the owners, and, therefore, if he hypothecates the cargo, the bond is not binding upon the cargo.^ In Duncan v. Benson^ the question to be decided by the Court was whether the master of a ship might maintain an action against the owner of the ship on ztn implied promise to in- demnify. The ship called the Lord Cochrane was damaged by the perils of the sea, and the master hypothecated by one bottomry bond, for necessary repairs, the ship, freight, and cargo, including his own goods. The ship and freight realised less than the sum borrowed and the captain was obliged to contribute towards the 1 See Kemp v. Halliday, 6 B. & S. 723. 8 See the Hamburg, Br, & Lush. 353. ' 1 Ex. 537. lOO difference, and also to pay his proportion of the costs of an action instituted in the Court of Admiralty by the obligee of the bond. It was held that he could do so. Where the owner of cargo ships it on board a foreign vessel, such owner ships it to be dealt with according to the law of the flag to which the vessel belongs, unless at the time of shipment that authority be limited by express stipulation.^ A bond executed by the master of a foreign vessel hypothecating cargo aboard of her, if valid according to the flag of the vessel, will be enforced by the English Admiralty Court on the arrest of the vessel and cargo, although the conditions imposed by English law as essential to the validity of such bond have been ignored. In Wilson v. Bank of Victoria,''' the action was brought to recover from the defendants the contribution to general average due from them as owners of a large quantity of gold, part of the cargo of the plaintiffs' ship. Royal Standard, on her voyage from Melbourne to England. The defendants paid money into Court sufficient to cover the plaintiffs' claim with the exception of one item, and the question for the Court was 'See the Gartano and Maria,, L.R. 7 P.D. 137. 'L.R. 2Q.B. 203. lOI whether that item was such as to be properly included in the general average. The material facts affecting that question were these : The Royal Standard was a large sailing vessel, furnished also with steam power and a screw. The screw was capable of being shipped on board when the vessel was sailing ; and the quantity of coal which the vessel was capable of carrying was very inadequate for a steam voyage from Australia to England [the ship was 2,000 tons with 130 horse steam power, and could carry from 550 to 600 tons of coal], so that . it was obviously contemplated that the voyage was to be principally performed by means of the sailing power of the ship, the steam power only to be used as auxiliary, which it appears was the common phrase used to describe such vessels — a clipper ship with auxiliary steam screw. She sailed from Mel- bourne with the defendants' gold and other cargo, and on the voyage came into collision with an iceberg. The effect of this disaster was to dismast her and to injure her upper works on the starboard side, so that she could not, when on the port tack, bear any sail, and when on the starboard tack, had not the means of making any quantity of sail : so that her sailing power might practically be said to be 102 destroyed. By means, however, of her screw and her steam power she reached the port of Rio de Janeiro in this state. [She left Mel- bourne on the 24th March, 1864, encountered the iceberg on the 4th April, and reached Rio on the 9th May, whence she steamed on the 1 2th May and reached Liverpool on the 12th of June]. It appeared that in order to repair the sea damage, so as to restore the sailing power of the vessel, it would have been neces- sary to land the cargo and warehouse it, and to detain the vessel at Rio for many months, and that the expenses of the repairs there would have been very heavy, so much so, that it seemed probable they would have exceeded the value of the ship when repaired ; at all events they would have cost many thousands of pounds more than if done in England. But it ap- peared that by making some slight temporary repairs which would not require that the cargo should be unloaded, and which in fact only caused a detention of three days, the vessel might be made fit to come home under steam. The master resolved to adopt the latter course, and there could be no doubt that in doing so he acted properly. In order to bring her home under steam it was necessary to purchase coal first at Rio and afterwards at Fayal [the 550 103 tons of coal on board when the ship sailed from Melbourne were nearly exhausted by steaming to Rio; 400 tons were shipped there, and 100 at Fayal ; the cost of the 500 tons being ^1,472]. The question that arose was whether the whole or any part of the said sum of ^1,472 could properly be charged to general average, all the other items claimed by the plaintiff being covered by the money paid into Court. It was held that, although the disbursements were ex- traordinarily heavy, such disbursements did not constitute an extraordinary expenditure within the rule of general average. In one case, the plaintiffs shipped beans on the defendants' ship, under a bill of lading, to be carried from Alexandria to Glasgow, deliver- able to the plaintiffs' order on payment of freight by consignees. At Liverpool the ship met with damage by collision, and was obliged to put in to repair. The beans were wetted by sea-water in consequence of the collision, and the repairs only taking a few days, there was no time to have taken out the beans, dried and re-shipped them ; but the plaintiffs being at Liverpool, and hearing of the disaster, objected to the beans being taken on in their then condition, and the defendants' agent proposed to them to receive the beans at Liverpool on payment of the whole 104 freight. The plaintiffs were ready to receive the beans, but refused to pay more than freight pro rata to Liverpool ; consequently the beans were taken on as they were. Damage from collision was one of the excepted perils. > It was decided that the plaintiffs were entitled to re- cover for the damage to the beans occasioned by their having been carried on in their wet condition ; for that the defendants were not justified in taking on goods contrary to the ex- press commands of the shipper, and sacrificing them merely for the purpose of earning the freight.^ This case, therefore, clearly proves that there is a duty on the master of a ship, as representing the shipowner, to take reasonable care of the goods entrusted to him, not merely in doing what is necessary to preserve them on board the ship during the ordinary incidents of the voyage, but also in taking active measures, where reasonably practicable under all the circumstances, to check and arrest the loss or deterioration resulting from accidehts for the necessary and immediate consequences of which the shipowner is not liable by reason of excep- tions in the bill of lading. For neglect by the master in this respect the shipowner is re- sponsible to the shipper. The measure of ^ See Notara v. Henderson, L.R. 5 Q.B. 346. tos damages would be the amount of extra depre- ciation in value in consequence of such neglect, after allowing the estimated expense of unship- ping and re-shipping. As a matter of practice, such expenses would be always charged in the adjustment against the articles in respect of which they were incurred. It cannot be ex- pressly said that there is a lien on the goods for such a particular average, but if the master was bound to make a disbursement for the benefit of the goods, it would be very hard on him if he had no remedy in cases where the owner of the goods has transferred the property and then be- come insolvent. Furthermore, damage to cargo caused by salt water does not come within the ex- cepted perils when, by reason of the place in which it is stowed, it is exceptionally liable to such damage in severe weather. Where the cargo as a whole is landed safely, the shipowner has his ship as she lies, either supposed to be worthless, in which case she will be left where she is ; or if he supposed the ship might be worth something to him, he might spend the money necessary to rescue her on his own account, and for his own purposes only ; in which case, the expenditure could not be the subject of general average. The Admiralty Court has no jurisdiction to decide any questions in regard to booty of war, io6 except such as are referred to it by order in Council.^ Where a general average loss has been in- curred, and the various contributions cannot be immediately ascertained, a shipowner is not en- titled in every case where there is a claim for general average to retain the cargo until pay- ment of the amount has been made.^ A bill of lading contained an exception of " fire on board ". The defendants carried goods belonging to the plaintiff, and the goods were injured during the voyage in consequence of water used to extinguish a fire which occurred during the voyage. On the true construction of the bill of lading it was made perfectly clear to the Court that the meaning was that their contract as carriers was subjected to the speci- fied exceptions to fire and its consequences, but that these exceptions only applied to the de- fendants as carriers, and did not relieve the shipowners from the liability for general average contribution to the owner of goods damaged by water used in putting out a fire on board. ^ If a cargo of coals is shipped to be carried to ^See re, the Banda and Kirwee Booty, L.R. 4 Ad. & Ecc. 436- ^See Huth v. Lamport, 16 Q.B.D. 442. 'See Schmidt v. Royal Mail Co., 1876, 45 L.J. Q.B. 646. to; a certain place and there delivered on payment of freight, and a fire breaks out spontaneously in the coals, and portions are thrown overboard, and the remainder so wetted and damaged by water poured upon them for the purpose of putting out the fire, that they have to be dis- charged and sold at a port of refuge, and the freight paid is wholly lost, the shipowner is entitled to a contribution in general average for lost freight, and there is no claim on account of the cargo, first, because there is no loss on account of it ; secondly, because the vice in it is the cause of the sacrifice/ In Prehn v. Bailey!^ which came before the Court of Appeal in 1881, the owner of a steam- ship called the Ettrick, sunk by a collision in the Thames, admitted it to be his fault and paid into Court ^8 a ton in an action commenced in 1880 to limit his liability. Under the Removal of Wrecks Act, 1877, and the Thames Conserv- ancy Acts, the Thames Conservators have power to raise a ship and deliver the ship and cargo to the owner, where he has undertaken to pay the expenses of raising. In this particular case part of the cargo consisted of wool, which was dam- 1 See Pirie v. Middle Dock Co., 4 Asp. Mar. Law Cas. 388. See also Nimick v. Holmes, 25 Penn. 366. ^6 P.D. 127. io8 aged by being sunk. It was decided that the shipowner was bound to deliver the wool to the owner of the wool without claiming from him, by way of contribution to salvage, any part of the expenses of raising the ship and cargo. In the case of the Chartered Bank of India v. Netherlands Steam Navigation Company, "^ the action was brought by the plaintiffs, as owners of goods shipped under a bill of lading in the defendants' vessel, the Willem Kroon-Prins der Nederlander (called hereafter the Crown Prince), and lost through a collision between that vessel and the Atjeh, another vessel of the defendants'. The jury at the trial found that the Atjeh was mainly responsible for the collision, but that the Crown Prince was also in some degree to blame. The bill of lading excepted (inter alia) (i) collision, (2) accidents, loss or damage from any act, neglect or default whatsoever of the pilots, master or mariners, or other servants of the company in navigating the ship. The plaintiffs " shaped " their action in two forms. First, they sued for a breach of contract in not carrying and delivering the goods safely ; and, secondly, they sued the defendants in tort, that is to say, in what was formerly an action on the case, for the loss of these goods by reason of the negligence of 'loQ.B.D. 5ai C.A. I09 certain servants of the defendants. The whole of the contract was in writing, it was a contract of carriage, but by the consent of the parties such contract was reduced into the form of a bill of lading, and, therefore, the whole of the contract as contained in the bill of lading, could be looked at. The questions which arose upon the action when considered as an action of con- tract, were first, by what rule or by what law was that contract which was contained in that bill of lading to be determined ? secondly, what was the true construction of that bill of lading ? and, thirdly, to what matters did that bill of lad- ing apply ? It had been suggested on the part of the defendants that that bill of lading was a foreign bill of lading, that it was a Dutch bill of lading and was to be construed according to the Dutch law. It was doubted if the construction would be different whether this were a Dutch bill of lading or an English bill of lading. It was a contract in writing, and no evidence of any particular mode of construing it in Holland was given. But it seemed to be clear beyond dispute that that was an English bill of lading and was to be construed according to the English rules of construction. It was held, therefore, that ac- cording to the law applicable to an English con- tract, the defendants had not committed a breach no of the contract created by the bill of lading ; that no action could be maintained against them on the ground of a failure to perform the under- taking therein contained to carry the goods safely upon the voyage, and that the defendants were liable in tort for the negligence of those engaged in navigating the Atjeh, but that the amount payable by the defendants must be limited to one-half of the loss sustained by the plaintiffs. In Dent v. Smithy the action was brought to recover ^i,io8 3s. 3d. as the proportion payable by the Marine Insurance Company (of which the defendant was the public officer) under a policy of insurance dated 26th November, 1858, and made between the plaintiffs, as agents for Teffik Pasha, the minister of finance to the Sultan of Turkey, and the company, whereby the sum of ;^ 10,000 was insured upon five boxes containing bar gold, the property of Teffik Pasha, of the value of ^52,000. The words contained in the policy of insurance were " five boxes of bar gold ... at and from London to Constantinople including all risks from the Bank of England until safely delivered to the con- signees at Constantinople ". The perils insured against included perils of the sea, with the usual suing and labouring clause. The gold wa,s to ' L.R. 4 Q.B. 414. Ill be conveyed to Constantinople by a ship called the Dutchman, and they (the plaintiffs) had, in consequence of the ship having been wrecked, and the gold having thus got into the hands of the Russian authorities, been compelled to pay a large percentage in order to get it back. On behalf of the defendants it was argued that the insurance upon the gold was effected at a time when the Dutchman was an English ship, that after her insurance was effected her nationality was changed ; that she was sold to Russian owners, and became a Russian ship, and that the consequence of which was, when she was wrecked within the Turkish territory, she and her cargo came under the jurisdiction of the Russian consulate at Constantinople. The policy of insurance was an insurance generally upon the gold to be conveyed to Constantinople by the Dutchman; but there was no assertion that the vessel was an English vessel, nor any stipulation that she should be or continue to be such. The Court thought that as there was no such express condition in the policy it was not called upon to imply one, and that the change of the nationality of the vessel was not a matter within the control of the plaintiffs, neither was it their act. It was a thing which might take place without any intervention 112 on the part of either the assured or the insurer. It was to be taken to be one of those things which, unless there was an express stipulation with regard to them, were things possible and incidental in the case of such a policy. That such a policy was to be construed as it would be interpreted by the law of England, that such interpretation of the policy by the law of Eng- land was that the insured was liable to pay in respect of any loss occasioned by any of the perils insured against, and the question in the case was whether the loss upon that gold by reason of the percentage which the owners of the gold had paid, was a loss by any of the perils insured against. It was held that the fact of the change of the nationality of the ship could not affect the contract of insurance, as there was no express warranty or condition in the policy that the ship should continue English ; that such a condition could not be implied, and that it was not a case of general average con- tribution. Judgment was therefore given for the plaintiffs for the amount claimed. The latest reported case on the subject of general and particular average expenditures is that of the Agenoria Steamship Company [Ltd.) V. Merchants Marine Insurance Company [Ltd.)} ' 19 T.L. Rep. 443 (1903), "3 The action was brought by the plaintiffs against the defendants to recover the balance of partic- ular and general average contribution under a time policy of marine insurance effected with the defendants upon the steamship Elmville, dated nth April, 1 90 1, and under an average statement dated February, 1902. The defendants' objec- tions were partly objections as to the propriety and reasonableness of certain of the charges and expenses which the plaintiffs' claim included, and partly objections of principle. The Elm- ville, a vessel of 1,862 tons gross register, was in 29th August, 1 90 1, damaged by striking on the starboard side of a reef near Toka Toka whilst proceeding at half speed on a flood tide up the river, in ballast, to Kaipara, New Zealand. After certain temporary caulking and riveting repairs had been done to her in Auckland, the Elmville sailed from Auckland to Melbourne and arrived there on 29th September, 1901. There she was docked and repaired perma- nently at a cost of about ^^4,000. The plaintiffs sent out to Melbourne their surveyor, and the large item of ;^756 4s. represented his expenses and a daily fee of £,2) 3s- This was one of the items objected to, and in the opinion of Mr. Justice Kennedy (who decided the case) the chargeability to the underwriters of the cost 114 of a surveyor sent put from this country by the owners, in connection with the damage repairs of an insured vessel at a foreign port, as their representative was rightly held in practice to depend in each case upon the particular cir- cumstances, and, further, that the underwriters ought not to have been charged with this heavy expense, especially in view of the fact that Melbourne was a place at which the exe- cution of repairs was costly and troublesome, by reason— it was said — of the large predomi- nance of the labour interest. The learned judge allowed the plaintiffs ;^io5 instead of the £756 4s. claimed. There were two other questions involving principle. The first one was £6^ 17s. 6d. for "bankers charges on amounts remitted to New Zealand and over- drafts". This item he allowed to the owners, as he thought it was right, in reason and in accordance with English usage. The second question of principle, in one aspect, was as to the allowance of ^i 15 for " extra on keel ". There was certain damage to a portion of the keel, apd this damage should have been repaired, according to the defendants, by " shoeing," at a cost of about ;^20, but the plaintiffs did not admit that repair by "shoeing" would be as efficient as the repairs which were, in fact, done, IIS and said that in any case the unsightliness of the repair would affect the value of the ship. In his (Mr. Justice Kennedy's) opinion the shipowner was entitled to object to a method of repairing an injured part of the ship which, though adequate to restore the part to its original strength, was so unsightly as to depreciate the vessel for the purposes of sale ; and the under- writer was liable for the repair of the injured part for materials and workmanship correspond- ing to its original character. The only other item in dispute upon which any other principle entered was " the sum of ;^33 os. gd. for commis- sion on disbursements ". It appeared to him (the judge) that he ought to hold that 2^ per cent, was a sufficient rate, and he reduced this sum of .^33 OS. gd. to ;^i6 los. 5d. The remaining items in dispute were questions of quantum. He, the learned judge, did not think it necessary to discuss them in detail but allowed a claim made by the plaintiffs for the cost of rivets, etc., together with certain dock dues. In regard to a claim for "repairs to bulkhead charged at ^93 " he disallowed ^47 on that item, and allowed £\9^ los. 8d. claimed for cables. CHAPTER IX. GENERAL AVERAGE ADJUSTMENT. Proper time in absence of agreement to contrary for adjust- ment of General Average — Phrase "General Average as per foreign statement": Mavro v. The Ocean Marine In- surance Co. — Harris v. Scaramanga — Hendricks v. Austral- asian Insurance Co. — "General Average payable according to foreign statement if so made up '' : De Hart v. Compania Anonima De Sequoros "Aurora" — The Mary Thomas — The Leitrim — Average adjusters — How adjustment must be made. The proper time (in the absence of any agree- ment to the contrary) for the adjustment of general average is at the termination of the voyage, that is to say, such adjustment should be made when the goods are delivered accord- ing to the law of the place of delivery.^ Tem- porary suspension of the voyage at a port of refuge for repairs does not warrant an average adjustment.^ The words "general average as per foreign statement," the usual memorandum contained in a marine policy of insurance, only make the ' See Simonds v. White, 3 B. & C. 805. ^ See Dalglish v. Davidson, 5 D. & R. 6. (116) 117 underwriter liable in respect of a contribution which the cargo-owner has to pay to such a general average loss by foreign law, but, except to that extent, does not make him liable in respect of any loss that would not be, according to English law, general average. What is general average is to be determined as per foreign statement, that is as a foreign average adjuster would state it. It is impossible to adopt the foreign rule as to what the cargo- owner was to contribute, and exclude it as to other matters. In Mavro v. The Ocean Marine Insurance Co.^ the action was brought upon a policy of insur- ance on a cargo of wheat. The ship, being disabled and some of the cargo damaged, put into Constantinople. Proceedings were taken in the Consular Court there, the result of which was, that by the order of the Court the damaged portion was sold and the sound portion tran- shipped. The entire cargo belonged to the plaintiffs ; an adjustment of average was, by order of the Consular Court, made at Constan- tinople, in which the average adjuster treated the damage to the wheat as general average. The policy contained the words "general average as per foreign statement," and "free »L.R. 9C.P. 595. ii8 from average unless general ". The defendants had paid into Court sufficient to cover the plain- tiffs' claim on all the items of the average ad- justment, except the item of damage to the wheat. This item they denied their liability to pay. They relied mainly upon three points : (i) That the Consular Court at Constantinople had no jurisdiction to make the orders which were made in the case. (2) That the voyage was not necessarily broken up at Constantinople and that the average should have been adjusted by an adjuster at Marseilles upon the arrival of the ship and goods in safety there. (3) That the words "free from average unless general" were intended expressly to exclude such an item as the one in dispute, which by the law of England would not be a general average loss at all. The Court was clearly of opinion upon the facts as stated in that case, that the Court at Constanti- nople was to be taken to have had jurisdiction to make the orders which it did, and which were acquiesced in at the time, and that it was to be taken that the voyage was necessarily broken up at Constantinople. Upon the true construc- tion of the policy the cases of Harris v. Scara- manga ^ and Hendricks v. Australasian Insur- ance Co} were held to be indistinguishable from ' L.R. 7 C.P. 481. 2 L.R. 9 C.P. 460, 119 this case, that the defendants were bound by the average statement at Constantinople, and that the defendants were liable to the plaintiffs in respect of the damage to the wheat. A shipowner effected with a firm of under- writers a time policy of insurance upon his ship. The policy contained the following clause : "General average payable according to foreign statement if so made up ". The shipowner chartered his ship to third persons, and by the terms of the charter-party it was provided that the ship might carry a deck-load of timber, and that " in case of average . . . jettison of deck- cargo for the common safety shall be allowable as general average ". A deck-load of timber was shipped, the vessel sailed for Antwerp, and in the course of the voyage and during the currency of the policy she suffered damage, so that it became necessary for the common safety to jettison part of the cargo. At Antwerp, on the arrival of the vessel, the average adjuster, in accordance with the terms of the charter-party, included the jettison of deck-cargo in general average. Jettison of deck-cargo by Belgian law, apart from contract, is not the subject of general average ; but that law recognises any special provisions in a charter-party as to what shall be the subject of general average. It was held, I20 applying the rule in Harris v. Scaramanga^ that as the statement had been made up in good faith and the charter-party imported no terms of a special or unusual character such as could not reasonably have been contemplated by the parties to the policy of insurance, the under- writers were bound by the statement and were therefore liable to indemnify the shipowner against the ship's proportion of the loss on the jettison of the deck-cargo.^ In the Mary Thomas,^ the plaintiffs effected with the defendants two policies of insurance, one on the hull and machinery of their vessel and the other on freight. Under both policies general average was payable as per foreign statement, if in accordance with the contract of affreightment. The policy on ship specially covered loss or damage through the negligence of the master, and both policies incorporated the ordinary suing and labouring clause. The bills of lading excepted strandings, even when occa- sioned by the negligence of the master. The vessel stranded. It was held by Barnes, J., (and his decision was affirmed by the Court of '[i873]L.R. 7C.P. 481. ^See Dt Hart v. Compania Anonima De Sequoros "Aurora" [1903], 3 K.B. 503. =■[1894] P. 108. 121 Appeal), that the defendants were not liable, as the foreign adjustment was conclusive as to what were general average expenses, and as to the apportionment of those expenses. " A general average adjuster ought to exclude claims for partial losses not incurred for the benefit of more parties than one, and claims under the suing and labouring clause for saving the ship alone. But he must decide what expenses, al- leged to have been incurred for the benefit of both ship and cargo, are to be treated as general aver- age expenses, and what are not ; and expenses which are treated by him as general average ex- penses must be so treated not only as between the respective owners of ship and cargo, but also as between them and their respective underwriters. Expenses so treated cannot be treated as some- thing else by those who have agreed to be bound by his decision." ^ The case of the Leitrim ^ raised the novel and difficult question, whether the practice pre- vailing among average adjusters that a loss of time freight — resulting from detention under repair of general average damage — was not allowed in general average, was a legal practice. It was held by Gorell Barnes, J., that the prac- ^PiY Lord Lindley in iUd. at pp. 133, 124. 2 [1902] P. 256. 122 tice was right, being in accordance with legal principles. Where loss of time is common to all the parties interested, and all suffer damage by the delay, the damage by loss of time may be considered proportionate to the interests, and, therefore, left out of considera- tion.^ " The profession or calling of an average stater or average adjuster, as it is sometimes called, is of comparatively recent origin. The right to receive, and the obligation to make, general average contribution existed long before any class of persons devoted themselves, as their calling, to the preparation of average statements. It was formerly, according to Lord Tenterden, the practice to employ an insurance broker for the purpose. The shipowner was not bound to em- ploy a member of any particular class of persons, or, indeed, to employ any one at all. He might, if he pleased, make out his own average state- ment, and he may do the same at the present time if so minded. If he engages the services of an average stater, it is merely as a matter of business convenience on his part. The average stater is not engaged, nor does he act on behalf of any of the other parties concerned, nor does his statement bind them. It is put forward by ' [1903] p. 356. 123 the shipowner as representing his view of the general average rights and obligations ; but the statement or adjustment is open to question in every particular by any of the parties who may be called on to contribute." For the purpose of making an average ad- justment, the value of the ship just before the general average sacrifice took place must be taken. The way that value is to be ascertained is to take, theoretically speaking, the value of the ship at that time. The practical working rule, which appears to have been established in this country by general mercantile practice is, that the value of the ship is to be ascertained by taking the difference between the value of the ship when undamaged and the estimated cost of repairing the particular average damage. Such, in short form, is the law affecting General and Particular Average. FINIS, APPENDIX. GENERAL AVERAGE. YORK-ANTWERP RULES, 1890. The following Rules were adopted at the Conferences in connection with the Associa- tion for the Reform and Codification of the Law of Nations held at — ANTWERP. 1887. RULE I. — JETTISON OF DECK CARGO. No jettison of deck cargo shall be made good as general average. Every structure not built in with the frame of the vessel shall be con- sidered to be a part of the deck of the vessel. RULE II. — DAMAGE BY JETTISON. Damage done to goods or mer- chandise by water which unavoidably goes down a ship's hatches opened, or other opening made for the pur- pose of making a jettison, shall be made good as general average in case the loss by jettison is so made, good. Damage done by breakage and chafing, or otherwise from de- rangement of stowage consequent upon a jettison, shall be made good as general average in case the loss by jettison is so made good. (I LIVERPOOL, 1890. RULE I.^JETTISON OF DECK CARGO. No jettison of deck cargo shall be made good as general average. Every structure not built in with the frame of the vessel shall be con- sidered to be a part of the deck of the vessel. RULE II. — DAMAGE BY JETTISON AND SACRIFICE FOR THE COM- MON SAFETY. Damage done to a ship and cargo, or either of them, by or in conse- quence of a sacrifice made for the common safety, and by water which goes down a ship's hatches opened, or other opening made for the pur- pose of making a jettison for the common safety, shall be made good as general average. 25) 126 LIVERPOOL (continued). RULE III.^EXTINGUISHING FIRE ON SHIPBOARD. Damage done to a ship and cargo, or either of them, by water or other- wise, including damage, by beaching or scuttling a burning ship, in extin- guishing a fire on board the ship, shall be made good as general aver- age ; except that no compensation shall be made for damage to such portions of the ship and bulk cargo , or to such separate packages of cargo, as have been on fire. RULE IV. — CUTTING AWAY WRECK. RULE IV. — CUTTING AWAY WRECK. ANTWERP (continued). RULE III. — EXTINGUISHING FIRE ON SHIPBOARD. Damage done to a ship or cargo, and either of them, by water or other- wise, in extinguishing a fire on board the ship, shall be general average, except that no compensation be made for damage done by water to packages which have been on fire. Loss or damage caused by cutting away the wreck or remains of spars, or of other things which have previ- ously been carried away by sea peril, shall not be made good as general average. Loss or damage caused by cutting away the wreck or remains of spars, or of other things which have previ- ously been carried away by sea peril, shall not be made good as general average. When a ship is intentionally run on shore because she is sinking or driving on shore or rocks, no dam- age caused to the ship, the cargo, and the freight, or any or either of them, by such intentional running on shore shall be made good as general average. RULE V. — VOLUNTARY STRANDING. RULE V. — VOLUNTARY STRANDING. When a ship is intentionally run on shore, and the circumstances are such that if that course were not adopted she would inevitably sink, or drive on shore or on rocks, no loss or damage caused to the ship, cargo, and freight, or any of them, by such intentional running on shore shall be made good as general aver- age. But in all other cases where a ship is intentionally run on shore for the common safety, the consequent loss or damage shall be allowed as general average. RULE VI. — CARRYING PRESS OF SAIL — DAMAGE TO OR LOSS OF SAILS. Damage to or loss of sails and -CARRYING PRESS OF SAIL. Damage occasioned to a ship or cargo by carrying a press of sail 127 ANTWERP {continued). shall not be made good as general average. RULE VII. — PORT OP REFUGE EXPENSES. When a ship shall have entered a port of refuge under such circum- stances that the expenses of entering the port are admissible as general average, and when she shall have sailed thence with her original cargo, or a part of it, the corresponding expenses of leaving such port sh'all likewise be so admitted as general average ; and whenever the cost of discharging cargo at such port is admissible as general average, the cost of reloading and stowing such cargo on board the said ship, to- gether with all storage charges on such cargo, shall likewise be so ad- mitted. Except that any portion of the cargo left at such port of refuge, on account of its being unfit to be carried forward, or on account of the unfitness or inability of the ship to carry it, shall not be called on to contribute to such general average. — (See Rule X. on next page.) RULE VIII. — WAGES AND MAINTEN- ANCE OF CREW IN PORT OF REFUGE. When a ship shall have entered a port of refuge under the circum- LIVERPOOL (continued). spars, or either of them, caused by forcing a ship off the ground or by driving her higher up the ground, for the common safety, shall be made good as general average ; but where a ship is afloat, no loss or damage caused to the ship, cargo, and freight, or any of them, by carrying a press of sail, shall be made good as general average. RULE VII. — DAMAGE TO ENGINES IN REFLOATING A SHIP. Damage caused to machinery and boilers of a ship, which is ashore and in a position of peril, in endeavour- ing to refloat, shall be allowed in general average, when shown to have arisen from an actual intention to float the ship for the common safety at the risk of such damage. RULE VIII.— EXPENSES LIGHTEN- ING A SHIP WHEN ASHORE, AND CONSEQUENT DAMAGE. When a ship is ashore and, in order to float her, cargo, bunker 128 ANTWERP (continued). stances defined in Rule VII., the wages and cost of maintenance of the masters and mariners from the time of entering such port until the ship shall have been made ready to proceed upon her voyage, shall be made good as general average. Ex- cept that any portion of the cargo left at such ports of refuge on account of its being unfit to be carried for- ward, or on account of the unfitness or inability of the ship to carry it, shall not be called upon to contribute to such general average. — (See Rule XI.) RULE IX.— DAMAGE TO CARGO IN DISCHARGING. Damage done to cargo by dis- charging it at a port of refuge shall not be admissible as general average in case such cargo shall have been discharged at the place and in the manner customary at that port with ships not in distress. — (See Rule XII. ) RULE X. — CONTRIBUTORY VALUES. The contribution to a general average shall be made upon the actual values of the property at the termination of the adventure, to which shall be added the amount made good as general average for property sacrificed ; deduction being made from the shipowners' freight LIVERPOOL (continued). coals and ship's stores, or any of them, are discharged, the extra cost of lightening, lighter hire, and re- shipping (if incurred), and the loss or damage sustained thereby, shall be admitted as general average. RULE IX. — CARGO, SHIp's MATERI- ALS AND STORES BURNT FOR FUEL. Cargoes, ship's materials and stores, or any of them, necessarily burnt for fuel for the common safety, at a time of peril, shall be admitted as general average, when, and only when, an ample supply of fuel had been provided; but the estimated quantity of coals that would have been consumed, calcu- lated at the price current at the ship's last port of departure at the date of her leaving, shall be charged to the shipowner, and credited to the general average. RULE X.— EXPENSES AT PORT OF REFUGE, ETC. (a) When a ship shall have entered a port or place of refuge, or shall have returned to her port or place of loading in consequence of accident, sacrifice or other extraordinary cir- cumstances, which render that neces- sary for the common safety, the 129 ANTWERP {continued). and passage money at a risk of two- fifths of such freight, in lieu of crew's wages, port charges and all other deductions ; deduction being also made, from the value of the property, of all charges incurred in respect thereof subsequently to the arising of the claim to general average. — (See Rule XVII.) LIVERPOOL (continued). expenses of entering such port or place shall be admitted as general average ; and when she shall have sailed thence with her original cargo, or a part of it, the corresponding expenses of leaving such port or place consequent upon such entry or return, shall likewise be admitted as general average. (b) The cost of discharging cargo from a ship, whether at a port or place of loading, call or refuge, shall be admitted as general average, when the discharge was necessary for the common safety or to enable damage to the ship, caused by sacrifice or accident during the voyage, to be repaired, if the repairs were necessary for the safe prosecution of the voyage. (c) Whenever the cost of discharg- ing cargo from a ship is admissible as general average, the cost of re- loading and storing such cargo on board the said ship, together with all storage charges on such cargo, shall likewise be so admitted. But when the ship is condemned or does not proceed on her original voyage, no storage expenses incurred after the date of the ship's condemnation, or of the abandonment of the voyage, shall be admitted as general average. (d) If a ship under average be in a port or place at which it is prac- ticable to repair her, so as to enable her to carry on the whole cargo, and if, in order to save expenses, either she is towed thence to some other port or place of repair, or to her destination, or the cargo or a portion of it is transhipped by another ship, or otherwise forwarded, then the 9 130 ANTWERP (continued). RULE XI.— LOSS OF FREIGHT. In every case in which a sacrifice of cargo is made good as general average, the loss of freight (if any) which is caused by such loss of cargo shall likewise be so made good. — (See Rule XV.) RULE XII. — AMOUNT TO BE MADE GOOD FOR CARGO. The value to be allowed for goods sacrificed shall be that value which the owner would have received if such goods had not been sacrificed. — (See Rule XVI.) LIVERPOOL [continued). extra cost of such towage, tranship- ment and forwarding, or any , of them (up to the amount of the extra expense saved), shall be payable by the several parties to the adventure in proportion to the extraordinary expense saved. — (See Rule VII.) RULE XI. — WAGES AND MAINTEN- ANCE OF CREW IN PORT OP REFUGE, ETC. When a ship shall have entered or been retained in any port or place under the circumstances, or for the purposes of the repairs mentioned in Rule X., the wages payable to the master, officers, and crew, together with the cost of maintenance of the same, during the extra period of detention in such port or place until the ship shall or should have been made ready to proceed on her voy- age, shall be admitted as general average. But when the ship is con- demned or does not proceed on her original voyage, the wages and maintenance of the master, officers, and crew, incurred after the date of the ship's condemnation or of the abandonment of the voyage, shall not be admitted as general average. —(See Rule VIII.) RULE XII. — DAMAGE TO CARGO IN DISCHARGING, ETC. Damage done to or loss of cargo necessarily caused in the act of dis- charging, storing, reloading and stowing, shall be made good as general average, when and only when the cost of those measures respectively is admitted a^ general average.— (See Rule IX.) 131 LIVERPOOL (continued). RULE XIII. — DEDUCTIONS FROM COSTS OF REPAIRS. In adjusting claims for general average, repairs to be allowed in general average shall be subject to the following deductions in respect of " new for old," via. : — In the case of iron or steel ships, from date of original register to the date of accident : — Up to one year old (A ). — AH repairs to be allowed in full, except painting or coating of bottom, from which one-third is to be deducted. Between one and three years [B], — One-third to be deducted off repairs to and renewal of woodwork of hull, masts and spars, furniture, uphol- stery, crockery, metal and glassware, also sails, rigging, ropes, sheets and hawsers (other than wire and chain), awnings, covers and painting. One- sixth to be deducted off wire rig- ging, wire ropes and wire hawsers, chain cables and chains, donkey- engines, steam winches and con- nections, steam cranes and connec- tions I other repairs in full. Between three and six years (C). — Deductions as above under Clause B, except that one-sixth be deducted off ironwork of masts and spars, and machinery (inclusive of boilers and their mountings). Between six and ten years (Z?). — Deductions as above under Clause C, except that one-third be deducted off ironwork of masts and spars, re- pairs to and renewal of all machinery (inclusive of boilers and their mount- ings), and all hawsers, ropes, sheets and rigging. 132 LIVERPOOL (continued). Between ten and fifteen years (E), — One-third to be deducted off all re- pairs and renewals, except ironwork of hull and cementing and chain cables, from which one-sixth to be deducted. Anchors to be allowed in fuU. Over fifteen years {P). — One-third to be deducted off all repairs and renewals. Anchors to be allowed in full. One-sixth to be deducted off chain cables. Generally (G). — The deductions (except as to provisions and stores, machinery and boilers) to be regu- lated by the age of the ship, and not the age of the particular part of her to which they apply. No painting bottom to be allowed if the bottom has not been painted within six months previous to the date of accident. No deduction to be made in respect of old material which is repaired without being re- placed by new, and provisions and stores which have not been in use. In the case of wooden or composite ships : — When a ship is under one year old from date of original re- gister, at the time of accident, no deduction new for old shall be made. After that period a deduction of one-third shall be made, with the following exceptions : — Anchors shall be allowed in full. Chain cables shall be subject to a deduction of one-sixth only. No deduction shall be made in respect of provisions and stores which had not been in use. 133 LIVERPOOL (continued^. Metal sheathing shall be dealt with, by allowing in full the cost of a weight equal to the gross weight of metal sheath- ing stripped off, minus the proceeds of the old metal. Nails, felt and labour, metal- ling are subject to a deduction of one-third. In the case of ships generally : — In the case of all ships, the ex- pense of straightening bent ironwork, including labour of taking out and replacing it, shall be allowed in full. Graving dock dues, including expenses of removals, cart- ages, use of shears, stages, and graving dock materials, shall be allowed in full. RULE XIV. — TEMPORARY REPAIRS. No deductions "new for old" shall be made from the cost of tem- porary repairs of damage allowable as general average. RULE XV. — LOSS OP FREIGHT. Loss of freight arising from dam- age to or loss of cargo shall be made good as general average, either when caused by a general average act, or when the damage to or loss of cargo is so made good (See Rule XI., Antwerp. ) RULE XVI. — AMOUNT TO BE MADE GOOD FOR CARGO LOST OR DAM- AGED BY SACRIFICE. The amount to be made good as general average for damage or loss of goods sacrificed shall be the loss 134 LIVERPOOL (continued). which the owner of the goods has sustained thereby, based on the mar- ket values at the date of the arrival of the vessel, or at the termination of the adventure. — (See Rule XIL, Antwerp, on page 130. ) RULE XVII.— CONTRIBUTORY VALUES. The contribution to a general aver- age shall be made upon the actual values of the property at the termina- tion of the adventure, to which shall be added the amount made good as general average for property sacri- ficed ; deduction being made from the shipowners' freight and passage- money at risk, of such port charges and crew's wages as would not have been incurred had the ship and cargo been totally lost at the date of the general average act or sacrifice, and have not been allowed as general average ; deductions being also made from the value of the property of all charges incurred in respect thereof subsequently to the General Average Act, except such charges as are allowed in general average. Pas- sengers' luggage and personal effects, not shipped under bill of lading, shall not contribute to general average. — (See Rule X., Antwerp.) RULE XVIII. — ADJUSTMENT. Except as provided in the fore- going rules, the adjustment shall be drawn up in accordance with the law and practice that would have governed the adjustment had the contract of affreightment not con- tained a clause to pay general aver- age according to these rules. 135 Be it known that as well in own Name, as for and in the Name and Names of all and every other Person or Persons to whom the same doth, may, or shall appertain, in part or in all, doth make assurance, and cause and them and every of them, to be insured, lost or not lost, at and from upon any kind of Goods and Merchandises, and also upon the Body, Tackle, Apparel, Ordnance, Munition, Artillery, Boat and other Furniture, of and in the good Ship or Vessel called the whereof is Master, under God, for this present voyage, or whosoever else shall go for Master in the said Ship, or by whatsoever other Name or Names the same Ship, or the Master thereof, is or shall be named or called, beginning the Adventure upon the said Goods and Merchandises from the loading thereof aboard the same Ship upon tlie said Ship, etc., and shall so continue and endure, during her Abode there, upon the said Ship, etc. ; and further, until the said Ship, with all her Ordnance, Tackle, Apparel, etc. , and Goods and Merchandises whatsoever, shall be arrived at upon the said Ship, etc., until she hath moored at Anchor Twenty- four Hours in good Safety, and upon the Goods and Merchandises until the same be there discharged and safely landed ; and it shall be lawful for the said Ship, etc. , in this Voyage to proceed and sail to and touch and stay at any Ports or Places whatsoever without Prejudice to this Insurance. The said Ship, etc. , Goods and Merchandises, etc., for so much as concerns the Assured by Agreement between the Assured and Assurers in this Policy, are and shall be valued at Touching the Adventures and Perils which we the Assurers are contented to bear and do take upon us in this Voyage, they are, of the Seas, Men-of- War, Fire, Enemies, Pirates, Rovers, Thieves, Jettisons, Letters of Mart and Countermart, Surprisals, Takings at Sea, Arrests, Restraints and Detainments of all Kings, Princes and People, of what Nation, Condition, or Quality soever. Barratry of the Master and Mariners, and of all other Perils, Losses, and Misfortunes that have or shall come to the Hurt, Detri- ment, or Damage of the said Goods and Merchandises and Ship, etc., or any Part thereof ; and in case of any Loss or Misfortune, it shall be lawful 136 to the Assured, their Factors, Servants and Assigns, to sue, labour, and travel for, in, and about the Defence, Safeguard and Recovery of the said Goods and Merchandises, and Ship, etc., or any Part thereof, without Prejudice to this Insurance ; to the Charges whereof we, the Assurers, will contribute, each one according to the Rate and Quantity of his Sum herein assured. And it is especially declared and agreed that no acts of the Insurer or Insured in recovering, saving, or preserving the property insured, shall be considered as a waiver or acceptance of abandonment. And it is agreed by us, the Insurers, that this Writing or Policy of Assurance shall be of as much Force and Effect as the surest Writing or Policy of Assurance heretofore made in Lombard Street, or in the Royal Exchange, or elsewhere in London. Warranted nevertheless free of capture, seizure and detention, and the consequences thereof, or of any attempt thereat, piracy excepted, and also from all consequences of hostilities or warlike operations, whether before or after declaration of war. And so we the Assurers are contented, and do hereby promise and bind ourselves, each one for his own Part, our Heirs, Executors and Goods, to the Assured, their Executors, Administrators, and Assigns, for the true Performance of the Premises, confessing ourselves paid the Consideration due unto us for this Assurance by the Assured at and after the Rate of IN WITNESS whereof, we the Assurers have subscribed our Names and Sums assured in N.B. — Corn, Fish, Salt, Fruit, Flour 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 Five Pounds per Cent. ; and all other Goods, also the Ship and Freight, are warranted free from Average under Three Pounds per Cent. , unless general, or the Ship be stranded. [In the event of accident whereby loss or damage may result in a claim under this Policy the settlement will be much facilitated if immediate notice be given to the nearest LloycTs Agent. ) STANDARD FORM OF SALVAGE AGREEMENT (APPROVED AND PUBLISHED BY THE COMMITTEE OF LLOYD'S). NO CURE— NO PAY On board the Dated 19 It is hereby Agreed between Captain of the (afterwards called " the Master ") and (afterwards called "the Contractor") as follows : — I. The Contractor agrees to use his best endeavours to salve the and her cargo and take her into or other place to be hereafter agreed with the Master, providing at his own risk all proper steam and other assistance and labour. The services shall be rendered and accepted as salvage services upon the principle of " no cure — no pay ' ' and the Contractor's remuneration in the event of success shall be £ , that being the sum demanded by him, unless this sum shall afterwards be objected to as hereinafter mentioned in which case the remuneration for the services rendered shall be fixed by Arbitration in London in the manner hereinafter prescribed : and any other difference arising out of this agreement or the operations thereunder shall be referred to Arbitration in the same way. ^. The Contractor may make reasonable use of the vessel's gear anchors chains and other appurtenances during and for the purpose of the operations free of costs but shall not unnecessarily damage abandon or sacrifice the same or any other of the property. 3. Notwithstanding anything hereinbefore contained should the opera- tions be only partially successful without any negligence or want of ordinary skill and care on the part of the Contractor or of any person by him employed in the operations, and any portion of the Vessel's Cargo or Stores be salved by the Contractor, he shall be entitled to reasonable remuneration not exceeding a sum equal to per cent, of the estimated value of the property salved at or if the property salved shall be (137) 138 sold there then not exceeding the like percentage of the net proceeds of such sale after deducting all expenses and Customs duties or other imposts paid or incurred thereon, but he shall not be entitled to any further remuneration reimbursement or compensation whatsoever and such reasonable remunera- tion shall be fixed in case of difference by Arbitration in manner hereinafter prescribed. 4. The Contractor engages not to arrest or detain the Vessel or Cargo or property salved except in the event of any attempt being made to remove the same from without his consent before the said sum of £ or the said maximum remuneration mentioned in Clause 3 (as the case may be) has been deposited in Cash with the Committee of Lloyd's to abide the result of the Arbitration hereinbefore mentioned, or such security or bail therefor as the Committee may in their absolute discretion consider sufficient has been given to them to abide the like result. Subject to this Agreement the Contractor shall have a lien on the property saved for his remuneration. 5. The Committee of Lloyd's after the expiry of 42 days from the date of the Deposit having been made or security or bail having been given, as provided tor in Clause 4, shall realise or enforce the same and pay over the amount thereof to the Contractor, unless they shall meanwhile have received written notice of objection and a claim for Arbitration from any of the parties entitled and authorised to make such objection and claim, or unless they shall themselves think fit to object and demand Arbitration. The receipt of the Contractor shall be a good discharge to the Committee for any monies so paid, and they shall incur no responsibility to any of the parties concerned by making such payment, and no objection or claim for Arbitration shall be entertained or acted upon unless received by the Committee within the 42 days above mentioned. 6. In case of Arbitration the Committee of Lloyd's shall forthwith upon the publication of the Award pay to the Contractor out of the Cash deposit, or by realising or enforcing the security or bail the amount awarded to him, and shall pay the balance (if any) of the deposit to the Depositors, whose receipts shall be a good discharge for the same. If the award increases the remuneration the parties mentioned in Clause 12 shall pay the difference to the Contractor. 7. The Committee of Lloyd's shall not be in any way responsible for the sufficiency of any security or bail accepted by them, nor for the default or insolvency of any person giving security or bail. 8. In case of objection being made and Arbitration demanded, the remuneration for the services shall be fixed by the Committee of Lloyd's as Arbitrators or at their option by an Arbitrator to be appointed by them, unless they shall within 30 days from the date of this Agreement receive from the Contractor a written or telegraphic notice appointing an Arbitrator 139 on his own behalf, in which case such notice shall be communicated by them to the Managing Owner of the vessel, and he shall within 15 days from the receipt thereof give a written notice to the Committee of Lloyd's appointing another Arbitrator on behalf of all the parties interested in the property salved ; and if the Managing Owner shall fail to appoint an Arbitrator as aforesaid the Committee of Lloyd's shall appoint an Arbi- trator on behalf of all the parties interested in the property salved or they may if they think fit direct that the Contractor's nominee shall act as sole Arbitrator ; and thereupon the Arbitration shall be held in London by the Arbitrators or Arbitrator so appointed. If the Arbitrators cannot agree they shall forthwith notify the Committee of Lloyd's, who shall thereupon either themselves act as Umpires or shall appoint some other person as Umpire. Any award of the Arbitrators or Arbitrator or Umpire shall be final and binding on all the parties concerned, and they or he shall have power to obtain, call for, receive and act upon any such oral or documentary evidence or information (whether the same be strictly admissible as evidence or not) as they or he may think fit, and to conduct the Arbitration in such manner in all respects as they or he may think fit, and to maintain, reduce or increase the sum demanded by the Contractor. The Arbitrators or Arbitrator and the Umpire (in- cluding the Committee of Lloyd's if they act in either capacity) may charge such fees as they may think reasonable, and the Committee of Lloyd's may in any event charge a reasonable fee for their services in connection with the Arbitration, and all such fees shall be treated as part of the costs of the Arbitration and Award, and shall be paid by such of the parties as the Award may direct. Save as aforesaid the statutory provisions as to Arbitration for the time being in force in England shall apply. 9. The Committee of Lloyd's may in their discretion out of the Cash deposit or out of the security or bail (which they may realise or enforce for that purpose) pay to the Contractor on account before the publication of the award such sum as they may think reasonable on account of any out-of-pocket expenses incurred by him in connection with the services. 10. The Master is not authorised to make or give and the Contractor shall not demand or take any payment, Draft or Order for or on account of the remuneration. 11. Any dispute between any of the parties interested in the property salved as to the proportions in which they are to contribute to the Cash deposit or the sum awarded or provide the security or bail, or as to any other matter concerning them, shall be referred to and determined by the Committee of Lloyd's, whose decision shall be final and is to be complied with forthwith. 12. The Master enters into this Agreement as Agent for the Vessel and Cargo and the respective Owners thereof, and binds each (but not 140 the one for the other or himself personally) to the due performance thereof. 13. Any of the following parties may object to the sum named in Clause I as excessive or insufficient, having regard to the services which proved to be necessary in performing the Agreement, or to the value of the property salved at the completion of the operations, and may claim Arbitration, viz. .- (i) The owners of the ship, (z) Such other persons together interested as owners and/or Underwriters of any part not being less than one-fourth of the property salved as the Committee of Lloyd's in their absolute discretion may by reason of the substantial character of their interest or otherwise authorise to object, (3) The Contractor, (4) The Committee of Lloyd's — Any such objection and the award upon the Arbitration following thereon shall be binding not only upon the objectors but upon all concerned, provided always that the Arbitrators or Arbitrator or Umpire may in case of objection by some only of the parties interested order the costs to be paid by the objectors only, provided also that if the Committee of Lloyd's in their public capacity be objectors they shall not themselves act as Arbitrators or Umpires. 14. If the parties to any such Arbitration or either of them desire to be heard or to adduce evidence at the Arbitration, they shall give notice to that effect to the Secretary of Lloyd's, and shall respectively nominate a person in London to represent them for all the purposes of the Arbitration, and failing such notice and nomination being given within 14 days or such longer period as the said Committee of Lloyd's may allow after the notice of objection, the Arbitrators or Arbitrator or Umpire may proceed as if the parties failing to give the same had renounced their right to be heard or adduce evidence. 15. Any award, notice, authority, order, or other document signed by the Chairman or Secretary of Lloyd's on behalf of the Committee shall be deemed to have been duly signed by and shall have the same force and effect in all respects as if it had been signed by every member of the Committee. LLOYD'S FORM OF RESPONDENTIA BOND. Known all Men by these Presents that I (the Master of the original Ship or other person having charge of the Cargo and intending to forward it) of am held and firmly bound unto (the Lender) of in the sum of sterling British money, to be repaid to the said his agent, attorney, executors, administrators, or assigns, for which payment I bind myself, my heirs, executors, and adminis- trators, and also bind and hypothecate the cargo of laden or to be laden on board the ship (Forwarding Ship) for the voyage aftermentioned firmly by these presents. Sealed with my seal. Dated this day of ig Whereas the ship (Original Ship) lately arrived at in distress in the course of a voyage from to with the above-named cargo, and the said vessel being found incapable of carrying on the said cargo the said (the Master of the original ship or other person having charge of the cargo) determined in the interest of all parties concerned to forward the said cargo to its destination in the ship (Forwarding Ship) And whereas in order that the said cargo might be so forwarded it became necessary to provide funds to meet the expenses of discharging, warehousing, and reshipping the said cargo and other necessary disburse- ments on account of the said cargo, and/or to discharge certain liabilities in respect of which the said cargo was subject to liens and to arrest and sale. This recita should be varied ac- cording to the facts. And whereas the said being without funds or credit at and urgently requiring the sum of for the said purposes, and having first duly communicated with or attempted to communicate with the owners of the said cargo with a view to obtain funds from them, was compelled to apply for a loan upon respondentia; And WHEREAS the said who is hereinafter called the said (HO 142 lender proposed and agreed to advance upon such security the said sum of at a maritime premium of per cent, for the said voyage, and the said being unable to procure such advance on more advantageous terms, accepted the said proposal [with the intervention and approval of the proper authorities at ], and agreed so far as he lawfully could or might that the said security should have priority over all other claims upon the said cargo, whether by himself or any other person : And whereas the said lender has duly advanced the said sum in pursuance of the said agreement : Now THE Condition of the above obligation is such that if the said do use his best endeavours to forward or bring the said cargo to its destination without unnecessary delay or deviation, and do within days after the arrival of the said cargo at and before the discharge or delivery of the said cargo shall be commenced, well and truly pay or cause to be paid to the said lender or to his order or assigns the said sum of together vrith the maritime premium thereon at the rate aforesaid, making in all the sum of such payment to be made at the exchange of for every British pound sterling, or if the said cargo shall be duly despatched and forwarded on the said voyage without unnecessary delay or deviation, and the said cargo shall by perils of the sea be lost in the course of such voyage. Then the above-written obligation shall be null and void and the said shall be released from all liability in respect of the said sum of Provided always and it is hereby agreed and declared that if the said cargo shall in the course of the said voyage by perils of the sea as aforesaid be lost or so much damaged as that it cannot be carried to its said destination, then if any part thereof shall be saved the above security, so far as regards the property saved, shall remain in force, and the said lender or his assigns shall be at liberty forthwith to enforce the same against such property: Provided also, and the said loan is made upon the express condition, that the said lender does not accept or take upon himself any risk or liability on the said voyage except such as is hereby expressly mentioned, and shall not be liable to contribute to or make good any general or particular average loss or expenditure or other charges of a like nature which may happen to or be sustained by or incurred in respect of the said cargo or the said ship upon the said voyage in consequence of perils of the sea or otherwise. Signed, sealed, and delivered by the said in the presence of LLOYD'S FORM OF BOTTOMRY BOND. Know all Men by these Presents that I Master of the Ship of the Port of of the burthen of tons or thereabouts am held and firmly bound unto of in the sum of sterling British money, to be repaid to the said his agent, attorney, executors, administrators, or assigns, for which payment I bind myself, my heirs, executors and administrators, and also bind and hypothecate the said ship and the freight to become due in respect of the voyage aftermentioned and the cargo laden or to be laden on the said voyage firmly by these Presents sealed with my seal. Dated this day of 19 Whereas the said ship lately arrived at in distress, having sustained damages in the course of a voyage from to laden with and being in want of re- pairs, supplies and provisions to enable her to continue her said voyage : And whereas the said being without funds or credit at and urgently requiring the sum of to pay for the said repairs, supplies and provisions, and to discharge the lawful and necessary dis- bursements of the ship at and to release her from her liabilities, and to enable her to continue her voyage, and having first duly communicated or attempted to communicate with the owners of the said ship and of the said cargo with a view to obtain funds from them, was compelled to apply for a loan upon bottomry of his ship, her cargo and freight : And whereas the said who is hereinafter called the said lender, proposed and agreed to advance upon such security the said sum of at a maritime premium of per cent, for the said voyage, and the said being unable to procure such advance in any quarter on more advantageous terms, accepted the said proposal [with the intervention and approval of the proper authorities at ], and agreed so far as he lawfully could or might that the said security should have priority over all other claims on the said ship, freight, and goods, whether by himself or any other person : And whereas the said lender has duly advanced (143) 144 the said sum in pursuance of the said agreement : Now the Condition of the above obligation is such that if the said do with the said ship and cargo duly prosecute the said voyage without unnecessary delay or deviation, and do within days after the arrival of the said ship or cargo at and before com- mencing to discharge or deliver her cargo there, pay or cause to be paid to the said lender or to his order or assigns the said sum of together with maritime premium thereon at the rate aforesaid, making in all the sum of such payment to be made at the exchange of for every British pound sterling, or if the said ship with the said cargo shall duly prosecute her said voyage without unnecessary delay or deviation, and shall be by perils of the sea lost in the course of such voyage, then this obligation shall be null and void, and the said shall be released from all liability in respect of the said sum of Provided always, and it is hereby agreed and declared, that if the said ship shall by perils of the sea as aforesaid be lost or so much damaged as to be unable to com- plete her said voyage, then if any part of the said ship or cargo or of the said freight shall be saved or earned, the above security, so far as regards the property saved or freight earned, shall remain in force, and the said lender or his assigns shall be at liberty forthwith to enforce the same against such property and freight : Provided also, and the said loan is made on the express condition, that the said lender doth not accept or take upon himself any risk or liability on the said voyage except such as is hereby expressly mentioned, and shall not be liable to contribute to or make good any general or particular average loss or expenditure or other charges of a like nature which may happen to or be sustained by or incurred in respect of the said ship or her cargo or freight upon the said voyage in consequence of perils of the sea or otherwise. Signed, sealed, and delivered by the said in the presence of LLOYD'S AVERAGE BOND. An Agreement made this day of 19 BETWEEN Master of the Ship or Vessel called the and the several Persons whose names or Firms are set and subscribed hereto, being re- spectively Consignees of Cargo on Board the said Ship of the other part Whereas the said Ship lately arrived in the Port of on a voyage from and it is alleged that during such voyage she met with bad weather and sustained damage and loss and that sacrifices were made and expenditure incurred which may form a Charge on the Cargo or some part thereof or be the subject of a Salvage andjor a general average contribution, but the same cannot be immediately ascertained, and in the meantime it is desir- able that the cargo shall be delivered ; now therefore these PRESENTS witness and the said Master on his own behalf and on behalf of his owners in consideration of the agreement of the parties hereto of the second part hereinafter contained, hereby agrees with the respective parties hereto of the second part that he will deliver to them respectively their respective consignments on payment of the freight payable on delivery, if any, and the said parties hereto of the second part in consideration of the said Agreement of the said Master for themselves severally and respectively, and not the one for the others of them, hereby agree with the said Master that they will pay to the said Master or the Owners of the said Ship the proper and respective proportion of any Salvage andjor general average and/or particular and/or other charges which may be chargeable upon their respective consignments or to which the Shippers or Owners of such consignments may be liable to contribute in respect of such damage, loss, sacrifice, or expenditure, and the said parties hereto of the second part, further promise and agree forthwith to furnish to the captain or Owner of the said Ship a correct account and particulars of the value of the goods delivered to them respectively, in order that any such Salvage andjor general average and/or par- ticular and/or other charges may be ascertained and adjusted in the usual manner. (145) 10 146 And whereas at the request of the Owner of the said Ship the parties hereto of the second part have respectively deposited or agreed to deposit in the Bank of in the joint names of nominated on behalf of the Shipowners and nominated on behalf of such Depositors the sum of £ per cent, on the amount of the estimated value of their respective interests. Now it is HEREBY further agreed, that the sum so deposited by the said parties respectively shall be held as security for and upon trust for the payment to the parties entitled thereto, of the Salvage andjor general average and/or particular and/or other charges payable by the said parties hereto of the second part respectively as aforesaid, and subject thereto upon trust for the said Depositors respectively. Provided always that the said Trustees may from time to time, pending the preparation of the usual statement, pay to the said parties of the first part in respect of the amounts which may ultimately be found due from the said depositors respectively, and pay or refund to the parties hereto of the second part, or any of them, in respect of the amounts which may ultimately be found due to them, such sums out of the said deposits as may from time to time be certified by the Adjuster or Adjusters who may be employed to adjust the said Salvage andlor general average and/or particular and/or other charges to be a proper sum or proper sums tp be advanced by the said Trustees on account of the said amounts. And it is HEREBY DECLARED AND AGREED that any payment or payments on account which shall be made by the said Trustees under or in accordance with the statement or in pursuance of any Certificate to be made or given by the said adjusters as aforesaid shall discharge such Trustees from all liability in respect of the amounts so paid ; and it shall not be necessary for them to inquire into the correctness of the Statement or Certificate. Pro- vided ALWAYS that the deposits so to be made as aforesaid shall be treated as payments made without prejudice and without admitting liability in respect of the said alleged Salvage andjor general average and/or parti- cular and/or other charges, and as though the same had been made by the depositors respectively for the purpose only of obtaining delivery of their goods ; and in like manner all amounts returned by the Trustees to the depositors shall be received by the latter respectively without prejudice to any claim which the master or owners of the said ship may have against them respectively. And nothing herein contained shall constitute the said Adjuster or Adjusters an arbitrator or arbitrators, or render his or their Certificate or Statement binding upon any of the parties. In witness 147 An AGREEirfENT 1 made this day of ig BETWEEN being the of the Ship or Vessel called the " "of the first part, and the several persons whose names or firms are set and subscribed hereto, being respectively Owners or Consignees of Cargo on board the said Ship, or their Agents, of the second part (hereinafter called the Consignees). Whereas, the said Sh|p lately arrived in the Port of on a voyage from and it is alleged that during such voyage sacrifices were made ^° expenditure incurred which may form a charge on the cargo, or some part thereof, or be the subject of a general average contribution, but the same cannot be immediately ascertained, and in the meantime it is desirable that the cargo should be delivered ; Nowr THEREFORE THESE PRESENTS WITNESS, and the said parties hereto of the first part on their own part, and (if Agents) on behalf of the Owners and Master of the said vessel, in consideration of the agreement of the Consignees hereinafter contained, hereby agree with the respective Con- signees, that they will deliver to them respectively their respective consign- ments, on payment of the freight payable on delivery, if any, and on making a reasonable deposit as security for General Average, Salvage and/or particular or other charges as hereinafter provided, if required, and the said Consignees in consideration of the said agreement of the parties hereto of the first part for themselves severally and respectively, and not the one for the others of them, hereby agree with the parties hereto of the first part, that they will pay to the parties entitled thereto the proper and respective proportion of any General Average, Salvage and/or par- ticular or other Charges, which may be payable upon their respective consignments, or for which the Shippers or Owners of such consignments may be liable in respect thereof. And it is hereby agreed that the adjiist- ment shall be made by being of the Association of Average Adjusters, who shall send to each of the parties hereto a copy of Adjustment on the date 'This Agreement has been approved by The Liverpool Underwriters' Association ; The Incorporated Chamber of Commerce, Liverpool ; The Liverpool Shipowners' Association ; The Liverpool Steamship Owners' Association, and The Liverpool Average Adjusters' Association. 148 thereof. And the said Consignees further promise and agree forthwith to furnish to the said Adjuster a correct account of the particulars and values of the goods laden on board and/or delivered from the said Ship and owned by or consigned to them respectively, and such other information as may be required in order that any such General Average and other charges may be adjusted in the usual manner. And whereas, at the request of the parties hereto of the first part, the Consignees or some of them (hereinafter called the Depositors) have respectively deposited, or agreed to deposit, on account of such General Average, Salvage, and/or particulai- or other charges, in the Bank in the joint names of nominated on behalf of the parties of the first part, and nominated on behalf of such Depositors (hereinafter called the Trustees), the sums which have been mutually agreed upon or have been or are about to be fixed by the said Adjuster . Now IT IS HEREBY FURTHER AGREED, that the deposits SO made shall be held as security for and upon trust for the payment to the parties entitled thereto of the General Average, Salvage and/or particular or other Charges payable by the Depositors, and subject thereto upon trust for the said Depositors respectively. And it is further agreed and declared as follows :— I. THAT the Trustees may make advances to, or payments on behalf of any of the parties hereto out of the said deposits of such sums in respect of any disbursements made, or about to be made, or losses sustained, by or on behalf of those parties respectively, or by those whom they represent, as the Adjuster may certify to be wholly or in part chargeable against the Depositors, or some of them, after taking into account any sums which may be payable to them. That the Trustees may at any time return to any Depositor such portion of his deposit as the Adjuster may certify to be in excess of the amount reasonably required from him as security. II. THAT upon the expiration of 14 clear days from the date of issue of the Adjustment, the Trustees shall distribute and pay the deposits remaining in their hands in accordance with the said 149 Adjustment, unless they (or one of them) shall in the meantime have been served by one or more of the parties hereto with notice in writing that he, or they, object to the Adjustment and require them (the Trustees) to retain the deposits, or some part thereof, in their hands, pending the settlement of such objection. III. THAT the party or parties giving such notice shall at the same time furnish the Trustees with particulars of the item or items objected to and the grounds of the objection. IV. THAT if and when such notice and particulars shall have been duly given to the Trustees, they may only pay over and distribute the balances in accordance with the Adjustment at the expiration of the aforesaid period of 14 days, if and in so far as the same shall not be affected by the objection, and shall retain in their hands so much of the deposits as in their judgment may be effected by the objection. V. THAT at the expiration of a further period of 30 clear days (from the expiration of the before-mentioned period of 14 days), unless legal proceedings shall have been commenced or an arbitration agreed upon for the purpose of settling the questions raised by the objection, or some of them, and notice in writing of such proceedings shall have been served upon the Trustees (or one of them), or unless they shall be satisfied that further delay is desirable for the purpose of arriving at a settlement, the Trustees may (without prejudice to any question or dispute as to the Adjustment) pay over the monies retained in their hands to the parties who shall appear by the Adjustment to be entitled thereto. VI. THAT all payments made by the Trustees, whether as advances, payments, or returns, before the issue of the Adjust- ment, or by way of distribution and settlement, in whole or in part, of the deposits in accordance with the Adjustment, after the same shall have been issued, or otherwise under this agreement, shall, if made with due care, discharge the Trustees from all liability to respect of the amounts so paid, but shall not be otherwise final, and that any such payment shall be wholly without prejudice to any objection or question which may be raised with respect to the Adjustment. As Witness the hands of the Parties; — INDEX. Abandonment, Notice of, 97, 98. "Accidents, loss or damage from any act, neglect or default whatsoever ot the pilots master or mariners or other servants of the Com- pany in navigating the ship," 108, log, no. Admiralty Court (see also Booty of War). usage of, in regard to salvage, 76. no jurisdiction to decide questions affecting booty of war, 105, 106. Advanced Freight, 87. " All and Every the dangers and accidents of the seas and of navigation of what- soever nature and kind," 81. " All Loss," what words, ought not to be held to include, 2, 3. Anchors, 63. " At and From," construction of words, 57. ordinary signification of words, 57, 58. Average, what expression signifies, i. in its original form, ibid. the various definitions of, 1, ^, 3. Average, Customary, 3. Average, Gross, 2, 3. "Average, if any, is to be adjusted according to British Custom," signification of words, 30. Average, Petty, 3. Average Staters (see also General Average Adjusters, General Average Adjustment). Courts do not accept views of, as authority, 22. Awards (see also Magistrates). by magistrates, 80, 81. duty of Court to support magistrates, ibid. (151) 152 Beans, damage to cargo of, by sea-water, 103-105. Bill of Lading (see also Insurance Policy). in, person may sometimes look beyond immediate cause, 11. difference between, and insurance policy, 12. what expression " perils of the sea " means in, 13. exception of negligence of master and crew in, 45. lien on, g6, 97. Bond (see also Foreign Vessel, Ship's Flag). execution of, by master of foreign vessel, 100. Booty of War (see also Admiralty Court). Admiralty Court no jurisdiction in regard to questions affecting, 105, 106. Bottomry Bond, personal debt not enough for, g6. made payable at vessel's port of destination, gg. Cables, 63. Cargo (see also Freight). policy on, for original voyage, what it will cover, 7. case where persons were the owners of both ship and, 13, 14, 15. when, in danger, may be landed, 18. partial damage to, ig. re-loading of, 20. unloading of, 25. whether, should contribute whenever any expenditure is incurred, 25, 46. case in which unloading of, was spoken of as general average, 27. when, must contribute to general average, 41. when part of, sacrificed for preservation of rest of, 52. what right of general average contribution in reference to jetti- soned, is founded upon, 6g, 70. Charter-Party (see also Freight). where, silent in regard to performance of voyage, 87. may stipulate that part of freight shall be paid by anticipation, ibid. must be express stipulation in reference to payment of portion of advanced freight, ibid. no new implied contract as to payment of portion of advanced freight, 87, 88. Charterer (see also Freight). liability of, for contribution to general average in respect of advances on freight, 41. 153 Coal (Extra), 42. Collision, negligence of crew causing, 6. loss by, 7, 8, 10. by another vessel, 13. vessel sunk by, 107. Consignee of Cargo (see also Bill of Lading). liability of, to pay general average under bill of lading, 44, 45. Consignee of Goods (see also Bill of Lading), receiving them in pursuance of a bill of lading, 71. Constructive Total Loss, what must be taken into account in determining, g8, gg. Contribution, principle upon which, becomes due, 43. the two well-established exceptions in reference to, 46, 47. Custom, 60, 61. " Danger or Accident," 8. " Dangers or Accidents of Navigation," 7. " Dangers and Accidents of the Seas," 13. " Dangers of Navigation," 8. Dead Freight (see also Lien), 53. Deck Cargo, where shipowner has laden goods on deck under privilege of usage of voyage in regard to, 40, 41. jettisoned, not entitled to general contribution, 47. exception, 47, 48. lawful jettison of, 62. Disbursements (see also Master of Vessel). Master of vessel authority to make all proper, 83. amount of, not a question of law, ibid. Diseases of Animals Acts, i8g4 and i8g6, 36, 37. Donkey-Enoine, g. injury done to, 42. Donkey-Pump, g. ' ' Equality is Equity," 34. Expenditures (see Chapter VIIL, pp. 82-115). subsequently incurred, cannot be brought into general average, 27. when, can only become chargeable to general average, 28, 1 54 Expenses Incurred after Cargo in Safety, 94. Extraordinary Expenditure Voluntarily Incurred, 22, 23. Fencing Wire, injury to cargo of, 48, 49. " Fire on Board " (see also Bill of Lading). exception of, in bill of lading of, 106. " Five boxes of bar gold ... at and from London to Constantinople, including all risks from the Bank of England until safely delivered to the consignees at Constantinople," 110-112. " For Account and Risk of the Owner of the Cargo,!' 53. Foreign Vessel (see also Bond, Ship's Flag). where owner of cargo ships cargo on, 100. Foundering, Loss by, 10. "Free from Average under 3 per cent.,'' 30-35. "Free from Average unless General," 117, 118, 119. Freight (see Chapter V., pp. 51-59 ; see also Sue and Labour Clause). where voyage is frustrated no, 25. must contribute to general average, 41. policy of insurance on, how calculated, 51. where, contributory, freight saved must equally contribute, 52. vested right of, 52, 53. where no, payable, 55, 56. pro rata, 56. when contract to pay, dissolved, 58. shipowner entitled to recover, under sue and labour clause for loss of, 59. not payable until voyage performed, 87. insurance policy on, 88. coals to be carried on payment of, 106, 107. General Average, 3. persons liable to pay, 44, 45. insurer's indemnity for, 82. General Average Act, 17-28. General Average Adjusters, what should be excluded by, 121. must decide what expenses incurred for benefit of ship and cargo, ibid. special practice prevailing among, 121, 122, General Average Adjustment (see Chapter IX., pp. 116-123). universal agreement as to, 44. rules as to, 45, 46. what rules as to, depend upon, 65. general average contribution after, g6. proper time (in absence of agreement to contrary) for, ii6. temporary suspension of voyage does not warrant a, ibid. value of ship, prior to general average sacrifice must be taken into consideration, 123. the practical working rule in regard to, 123. "General Average as per Foreign Statement," 116, 117. " if in accordance with the contract of affreightment," 120. General Average Contribution (see Chapter IV., pp. 38-50). object of, 23. the obligation to pay, what it depends upon, 44. maybe limited, qualified or excluded, ibid. varies in different countries, ibid. when it cannot be maintained, 45. rules as to, ibid. what the whole law of, is founded upon, 64. amount of, what it must depend upon, 64. amount of, exigible, 82. General Average Expenditures (see Chapter VIII., pp. 82-115), 17- must be considered on their merits, 23. the two tests in reference to, 23, 24. General Average Loss (see Chapter III., pp. 16-37). how, must be calculated, 16. what constitutes a, 17-28. "General Average Payable According to Foreign Statement IF so made up," 119, 120. General Average Sacrifice (see also General Average Expenditures). defined, 22. cannot be qualified or extended, 27. caused by general average expenditure, 28. Gold, 100-103. Goods (see also Cargo). where, not carried with reasonable care, 12. where, landed, an end to all common danger to, 27. 1 56 Goods {continued). thrown overboard must be valued at what they would realise in damaged state, 66. master of vessel nor shipowner power to bind, by any contract, 83- Guarding of Cargo, 21. Homeward Cargo (see also Freight). where ship in condition to take in, 53. Hull (see also Machinery). policy on, 120. Hypothecation of Cargo, power of master of vessel in regard to, in foreign port, 84. master of vessel must if possible communicate with owners of cargo before, g8. master no authority to hypothecate cargo if owners can be com- municated with, 99 . Iceberg, collision caused by an, 13. Improper Stowage, what is, 47. " In case of, average . . . jettison of deck cargo for the common safety shall be allowable as general average," iig, 120. Indemnity, Implied, master of vessel may maintain an action on an, gg, 100. Insurance (see also Freight). when there can be an effective, on freight, 57. Insurance Policy (see also Bill of Lading, Perils of the Sea). purpose of, 9, 10. an absolute contrast to indemnity for loss by perils of the sea, II, 12. on ship, 88. Intermediate Port (see also Shipowner). where vessel becomes disabled at, 6. Inward Dues, 17. Jettison (see Chapter VI., pp. 60-72). lightening ship by, not the only foundation of genersil average, 39, 40. 157 Jettison (continued). rights of those entitled to contribution having their origin in, 43, 44. the two conditions to be fulfilled in order to make, the subject of general average, 60. custom where, of goods will not bind shipowner to contribution, 60, 61. defined, 62. where after, no benefit accrues, no contribution, 64. value of goods at time of, not to be taken as the test, 64, 65. where after, rest of cargo arrives in damaged state, 65, 66. in, value of goods must be taken at time of arrival in damaged condition, 66, 67. Jettisoned Cargo (see also Jettison). innocent owners of, entitled to general average, 70. Lien (see also Dead Freight). may be a, on goods of each freighter, 38, 39. master of vessel no authority to create, on cargo for dead freight, 53- Machinery (see also Hull). policy on, 120. Magistrates (see also Admiralty Court, Awards). award by, for salvage services, 80, 81. Manipulation of Cargo, 21. Marine Policy, causa proxima in, alone considered, 10. Mast voluntarily cut away, 22, 28. Masts, 63. Master, Imprisonment of, no claim for general average by reason of, 40. Master of Vessel (see also Disbursements). not bound to deliver goods without compensation, 72. where, compelled to sell part of cargo at intermediate port, 72. may bind shipowner, 82, 83. object of appointment of, 83. no power to bind goods by contract, ibid. authority to make all proper disbursements, 83. Merchant Shipping Act, 1894. in regard to wages, 58. in regard to salvage, 80. 158 Neqliqence, injury caused accidentally without, g. when ship lost by collision caused by, of carrying ship, ii. for whifch shipowner is not responsible, 45. Negligence of Crew, causing collision, 6. in navigating vessel, 10. Negligence of Shipowner, 12. "Objections of Principle," 112-115. "On A voyage, from Bristol to New York, during her stay there, and back to her port of discharge," 8b. Outward Expenses, 20. Packages, goods of same species shipped in, 71, 72. Particular Average (see Chapter III., pp. 16-37). defined, a, 3. Particular Voyage. When vessels sent out to sea unfit for, 5. Peril of the Sea, negligence of crew causing a, not a, 6. " Perils of the Sea " (see Chapter II., pp. 4-15). special clauses excepting, " of whatsoever nature or kind soever and howsoever caused," 4, 5. term, does not cover every accident or casualty, g. every loss or damage not covered by words, ibid. words, what they do not cover, ibid. there must be some casualty to come within meaning of words, ibid. where ship sunk by another accidentally does not apparently come within term, 10. does not matter how, were induced, ibid. shipowner not protected in every case by exception of, 11. words, may have a different meaning in two instruments, ibid. and other losses of the same character, 13, 14. " Persons Belonging to such Ship," what words, include, 80. Pilot, obliged to remain in service of ship, 77, 78. may receive salvage remuneration, 78. 159 Pilotage, 17, 22. Policy on Ship, for original voyage, what it will cover, 6. for original voyage on cargo, what it will cover, 6, 7, 30. for time, 84. covering loss or damage through negligence of master, 120. Port of Distress, when ship in, for repair, 17. going into, in consequence of voluntary sacrifice, 21. putting into, in consequence of particular average damage, ibid. master under no obligation to tranship cargo if ship can be re- paired at, gg. Port of Refuge, expenses, 22. whether extraordinary expenditure after entry into, rightly chargeable, 23. English theory in regard to, expenses, 26. Press of Sail, 85. Prorata Indemnity, 23. Pro Rata Itinbris, 72. Provisions of Crew, not a general average contribution, 85. Putting into Port for Repairs, 21. Rats, damage caused by, 13. Reasonable Time, captain of vessel allowed, to ship and tranship, 54, 55. Reloading, not an act of sacrifice, 28. Removal of Wrecks Act, 1877, 107. Repairs, 7, 17. to ship nothing to do with safety of cargo, 20. to ship in port should be included in general average, 27. summary of English Law in regard to, 8g-g2. Rhodian Law, general average founded on, 43. Salt Water, where damage caused by, 105. i6o Salvage (see Chapter VII., pp. 73-81). services rendered for removing cargo to place of safety, 76, defined, ibid. in cases of, the whole value of ship and cargo must be taken into account, ibid. in cases of, not competent to allege that services were greater to ship than to cargo or vice versd, 76. concluded at one port and cargo transhipped, 77. express demand or express acceptance of, services, 78. Scuttling (see also Cargo). for benefit of ship and cargo, 35. Sea Risk, Common, defined, 4. Seaworthiness, s, 6, 7. Ship (see also Port of Distress). defective state of, 5. obliged to go into port of distress, zo. Ship, Cargo and Freight, contribution of, to general average, 49, 50. Shipowner (see also Goods, Disbursements). what, impliedly contracts to perform when he accepts goods to be delivered in good condition, 5. defects not known to, ibid. must if possible complete voyage, 6. compelled to put into intermediate port, ibid. unable to repair his ship, 7. contract of, to carry the goods to destination, 82. no authority to bind goods of shipper by any contract, 83. master of vessel authority to make all proper disbursements on behalf of, 83. not entitled as a matter of lam to whole amount of expenditures he chooses to pay, ibid. when, prevented from carrying cargo to destination, 97. Shipper of Goods, may maintain action against another, for contribution to general average, 39. Ship's Flag, 100 (see also Bond, Foreign Vessel). Ship's Stores (see also Jettison). jettison of, 84. Spars, 41. i6i Steam Tug, ^"g3-ged to tow, bound to complete agreed service, 78. employment of, 94. Stranded Ship, where agent lien on cargo of, 42, 43. " Stranded, Sunk, or Burnt," 29. Sue and Labour Clause, 14, 120, 121. Sunken Rock, where vessel strikes upon, in fair weather, 10. collision caused by, 13. " Swiftering up," 14. Tackle, damage to, 85. Thames Conservancy Acts, 107. " The Steamer shall be Provided with a Deck Load if Required AT Full Freight but at Merchant's Risk," 68, 69. Time Policy, 8, 9. "To Pay all Claims and Losses on Dutch Terms," etc., 29, 30. Towage, 17, 77. True Value, first price of thing does not always represent its, 66. " Under Deck," 70, 71. Unloading, Cost of, a general average expenditure, ig. exception to, 20. Unseaworthiness, 4, 56. Usage (see also Custom), 61. Voyage, Original, when not regarded as broken, 7. Wages (see also Freight). right to pay does not depend on earning of fireight, 58. not a general average contribution, 84, 85. not due apart from agreement to contrary until voyage per- formed, 87. Warehousing, Expenses of, 20, 21. II 1 62 " Warranted Free from Particular Average unless the Ship BE Stranded. . . ," 35. Wheat, 117. Wood, 41. York-Antwerp Rules (see also Appendix, pp. 125-134). average adjusted according to, 36. THE ABERDEEN UNIVERSITY PRESS LIMITED. PREMIER CODE USED-s£e BACK. OCTOBER, 1904. Talegraras— " EFPINGERE, LONDON". CATALOGUE £ega(, Commerdaf and otftcr BJorfts PUBLISHED AND SOLD BY EFFINGHAM WILSON, 34 THREADNEEDLE STREET, LONDON, TO WHICH IS ADDED A LIST OF TELEGRAPH CODES. EFFINGHAM WILSON undertakes the printing and publishing of Pamphlets and Books of every description upon Commission. Estimates given, and Conditions of Publication may be had on application. INDEX. Arbitrage — page Deutseh 4 Willdey's American Stocks . 27 Arbitration — London Chamber of . . .24 Lynch, H. Foulks . . .20 Banking — Anecdotes 10 Bankers' Advances . . .12 Banks and their Customers . 26 Banks, Bankers and Banking . 22 Bibliography (Bank of England) 25 Easton's Banks and Banking . 15 Easton's Work of a Bank . • iS English and Foreign (Attfield) . 10 Examination Questions, Arith- metic and Algebra . . 21 Half-yearly Balance Sheets . 11 Howarth's Clearing Houses . 18 Hutchison, J 18 Journal Institute of Bankers . 18 Legal Decisions affecting Bankers 22 Questions on Banking Practice . 23 Scottish Banking . . . 19 Smith's Banker and Customer . 25 Token Money of the Bank of England .... 22 Bankruptcy — - Duckworth's Trustees . . 9 McEwen (Accounts) . . .20 Stewart (Law of) . . .8 Bills of Exchange— Kblkenbeck (Stamp Duties on) . 19 Loyd's Lectures . . .19 Smith (Law of Bills, etc.) . . 7 Watson's Law of Cheques . 26 Bimetallism — List of Works ... 28, 29 Book-keeping — Cariss 12 Carr (Investors) . . .12 Harlow's Examination Questions 17 Holah's Double Entry . . 9 Jackson 18 Johnson's Book-keeping and Ac- counts 18 Seebohm's (Theory) ... 9 Sheffield (Solicitors) . . .24 Van de Lmde . . . .26 Warner (Stock Exchange) . 26 Clerks — Commercial Efficiency . , 5 Corn Trade . . . .23 Counting-house Guide , . 13 First Years of Office Work . 13 Kennedy (Stockbrokers) . . 8 Mercantile Practice (Johnson) . 18 Merchant's , , . , 9 School to Office ... 9 Clerks (continued) — PAGE Solicitor's 18 Do., Part II Correspondence (Commercial) — Beaure Martin (Stockbrokers) Coumbe Counting-Iiouse — Cordingley . . . . Pearce County Court — County Court Practice Made Easy Jones Currency and Finance — Aldenham (Lord) Barclay (Robert) Clare's Money Market Primer . Cobb ....'. Cuthbertson . . . . Del Mar's History . Del Mar's Science of Money Financial Crises Ellis Gibbs, Hon. H., Bimetallic Primer Haupt Indian Coinage and Currency . Poor (H. V.) The Money Ques- tion Dictionaries — Maiot's French and English . Cordingley's Commercial Terms Cordingley's Stock Exchange Terms Directors — Pulbrook (Liabilities and Duties) Kxchanges — Brazilian Exchanges , Clare .... Goschen .... Norman's Universal Cambist Norman's Money's Worth Tate's Modern Cambist . Exchange Tables — American Exchange Rates Dollar (Eastern) Garratt (South American) . Lecoffre (French) , , (Austria and Holland) Merces (Indian) Schultz (American) . Schultz (German) Insurance — Bourne's Publications Fire Insurance Principles and Finance .... How and Where to Insure . Short-Term Table . 18 13 13 9 13 18 10 10 12 13 14 II 14 12 IS 16 17 23 21 13 13 23 26 12 16 25 10 19 IS 19 19 21 24 24 Effingham Wilson, 54 Threadneedle St., London. 3 Interest Tables — Bosanquet Crosbie and Law (Product) Decimal Interest Gilbert's Interest and Contango Gumersall . Ham (Panton) Universal Indian Interest (Merces) Lewis (Time Tables) . Rutter Schultz . Wilhelm (Compound) Investors (see also Stock Exchange Manuals) — Birk's Investment Ledger investment Profit Tables Houses and Land How to Invest Money Profits V. Dividends . Wright's Yield Tables Joint-Stock Companies — Chart for Ready Reference Company Frauds Abolition Companies Acts, 1862-igoo Common Company Forms Cummins' Formation of Accounts Emery's Treatise of Company Law Handy Book on the Law . Pulbrook's Responsibilities of Directors .... Simonson's Companies Act, 1900 Simonson's Debentures and De- benture Stock (Law of) . Simonson's Reconstruction and Amalgamation Smith Law (Various Subjects) — Charter Parties .... CopjrightLaw .... District and Parish Councils (Lithiby) .... Factors (Law relating to) . First Elements of Legal Procedure lo Food and Drugs . . .17 General Average . . -14 High Court Practice . . .22 Injuries to Workmen . . 5 Licensing Acts . . . .18 Marine Insurance . . .14 Maritime Law . . .24 My Lawyer . . . . j PatentLawandPractice(Eraery) 15 Powers of Attorney and Proxies 20 Property Law (Maude) . . 21 Solicitors' Forms (Charles Jones) 18 Thames River Law . . .22 Workmen's Compensation . 26 27 8 8 14 27 26 23 16 23 14 IS 23 23 24 24 24 7 14 12 19 II Legal and Useful Handy Books— page List of 7_Q Maps — Gold Coast .... 6 Kalgoorlie .... 6 Rhodesia 6 Witwatersrand Goldfields . . 6 Maritime Codes — Germany 10 Holland and Belgium . . 23 Italy .... .23 Spain and Portugal . . .23 Mining- Accounts of G. M. Cos. . . 14 Beeman's Australian Mining Manual 10 British Columbia Mining Laws 12 Charlton's Information fon Gold Mining Investors . . .12 Gabbott'sHowto Invest in Mines 15 Goldmann (South African Mining) 16 Milford's Dictionary of Mining Terms ..... 21 Tin-Mining in Spain . . .11 Wallach's West African Manual 26 Miscellaneous- Arithmetic and Algebra . . 21 Author's Guide . . . .27 On Compound Interest and An- nuities 25 Constable's (A) Duty . . 5 Cotton Trade of Great Britain . 15 Dynamics of the Fiscal Question $ Gresham, Sir Thomas (Life of). 12 Ham's Customs Year Book . 17 Ham's Inland Revenue Year Book 17 His Lordship's Whim . . 26 Kew Gardens (Illustrations) . 26 Landlord and iTenant . . 9 Lawyers and their Clients . . 19 Lloyds' Brokerage and Discount Card 19 Macfee, K. N. , Imperial Customs Union 20 Merchandise by Rail (Registered System) 17 Native or Transkeian Territories 17 Public Man . . . .25 Public Meetings . . .25 Red Palmer . . . .25 Russian Commercial Handbook s Schedule D of Income Tax . 9 Veld and " Street " . . 16 Wilson's Equivaleiits ... 5 Workmen's Compensation . 26 World's Statistics . . .10 X Rays in Freemasonry . . 13 Effingham Wilson, PAGE Money Market (see Currency sind Finance). Pamphlets 27 Prices — EUis (Market Fluctuations) . 15 Mathieson (Stocks) . . 20, 21 Railways — American and British Investors . 26 Home Rails as Investments . 25 Mathieson's Traffics . . .20 Poor's Manual (American) . 22 Railroad Report (Anatomy of a) 27 Ready Reckoners(^£e also Exchange Tables, Interest, etc.) — Buyers and Sellers' (Ferguson) . 8 Commission and Brokerage . 21 Houghton's Mercantile 'Tables (Weight) . . . .17 Ingram (Yards) . . . .18 Kilogrammes and Pounds . 27 Redeemable Stocks (Mathieson) 21 Merces (Indian) . . .21 Robinson (Share) . . .23 Silver Tables (Bar Silver) . .15 Sinking Fund and Annuity Tables- Booth and Grainger (Diagram) . 11 Hughes 18, Nash's Sinking Fund and Re- demption Tables . . .21 Speculation (see Investors and Stock Exchange). Stock Exchange Manuals, etc. — Anecdotes 10 Contango Tables . . .16 Cordingley's Guides . . .13 Fenn on the Funds, English and Foreign 15 PAGE Stock Exchange ManualB,etc.(co«<. )— Higgins, Leonard, The Put-and- Call . . . . . 17 Houston's Canadian Securities . 17 Hov? to Read the Money Article 14 Investor's Ledger . . .21 Investors' Tables, Permanent or Redeemable Stocks . .18 Key to the Rules. of the Stock Exchange . . . .12 LaviTs and Customs (Melsheimer) 21 Laws, English and Foreign Funds (Royle) . . . 23 Le Stock Exchange ... 5 Moody's Manual of U. S. Securities 21 Options (Castelli) . . .12 Poor'sAmerican Railroad Manual 22 Rapid Share Calculator . . 14 Redeemable Stocks (a Diagram) 11 Registration of Transfers . . 15 Robinson (Share Tables) . . 23 Rules and Usages (Stutfield) . 25 Willdey's American Stocks . 27 Tables (see Exchange Tables, Inter- est Tables, Ready Reckoners, and Sinking Fund and Annuity Tables, etc.). 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