LAW RELATING TO GENERAL AND PARTICULAR AVERAGE LAWRENCE DUCKV/ORTH Z/S NET EFFINGHAM WILSON dJornpU ICam ^rlynnl ICibrary Cornell University Library KD 1826.D83 The law relating to general and partlcul 3 1924 021 860 444 SCOTTISH WIDOWS' FUND For MUTUAL LIFE -m- -©G- ASSURANCE. Accumulated Funds (exceed) £15,000,000. The Whole Profits realised are divided among the Members. Bonus YeSiX* 190X. The Profits of the current seven years to ^ist December 1901 will be declared at the following Annual, Meeting, and all Participating Policies issued during 1901, on which one full year's premium has become due and been paid, Will participate in the Division. London} Application should he made to 38, CORNHILL, EC. 5, WATERLOO PLACE, S.W- THE LAW RELATING TO GENERAL AND PARTICULAR AVERAGE (FOR THE USE OF UNDERWRITERS AND OTHER PERSONS) LAWRENCE UUCKWORTH '' (of the middle temple, HARRISTER-AT-LAW) AUTHOR OF THE " LAW AFFECTING TRUSTEES IN BANKRUPTCV," "A COMFLETE SUMMARY OF THE LAW RELATING TO THE ENGLISH NEWSPAPER PRESS," " THE LAW AFFECTING THE TURF, BETTING AND GAMING-HOUSES AND THE STOCK EXCHANGE," ETC. LONDON EFFINGHAM WILSON ROYAL EXCHANGE 1900 [AU rights reserved] 'IHE ABERDBEN UNIVERSITY PRESS LIMITED P R E F A C E. This volume has been compiled for the con- venience of Underwriters and other persons who desire to possess a concise statement of the law on the subject of Average. I venture to hope that it may be found of use to them. I am indebted to the courteous secretary of Lloyd's (Col. H. M. Hozier, C.B.), and to T. E. Bejlen, Esq. (Secretary of the Liverpool Underwriters' Association), for their kindness in allowing me to make use of the matter contained in the Appendix. LAWRENCE DUCKWORTH. Middle Temple, Oct., 1900. The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021860444 CONTENTS. PAGFS Chapter I. — The Expression " Average'' a Foreign Word — Average variously Defined — Term Average as used in a Contract of Marine Insurance —The Two Kinds of Average (General and Particular) — What General Average is for — General Average Loss to which Con- tribution must be made — Liability of Goods saved Contribute Proportionately — Parties to a Policy of Insurance : what they Tacitly Agree to Do — Custom as to Loss Estimated at Two-thirds — Liability of Insurers in Single Loss — Money Paid in Advance by a Charterer — Object of Inserting the " Suing and Labouring'' Clause in a Policy of Marine Insurance — Marine Insurance Policy containing Express C'ontract — Case of Randall v. Cochrane . . i-i i Chapter II. —Lender upon Respondentia not Liable to Average Losses — Case of the Bella Lcandra — English Underwriters Bound by Foreign Adjustment — English and American Law in reference to General Average Loss or Contribution — Particular Average Loss or Total Loss — English Policies must be Construed according to English Rules of Construction — Underwriters and Merchant with respect to Foreign Adjustment — General Average Adjustment — Meaning of words " General Average " in ordinary English Policy — Little Information on Question as to when Voyage Terminated at an Intermediate Port — Where Adjustment is to take place at Port of Ultimate Destination — Principle on which Loss to Individual is Based — Question of value of Goods Jettisoned — Amount of Contri- bution must depend upon Actual Value of Goods — English Contract Governed by English Law — What Obligation to Contribute depends on — Where Average to he Adjusted at Place of Destination — Jettison where there are several Shippers whose Goods belong entirely to Subjects of Country at which Ship has Arrived — Owner of British Ship may avail himself of Statement of Average made in Foreign Country — What a General Average Adjuster ought to Exclude — What the words ' ' General Average as per Foreign Adjustment signify— Assured not at liberty to Approbate or Reprobate with respect to Foreign Adjustment . . . . 12-31 VI CONTENTS. tAGES Chapter III. — Case of Hendricks v. Austi-alasian Insurance Company —Master of Ship no Right to insist upon Arbitrary Payment— Ship- owner who requires Consignee to enter into Bond — Person Receiving Goods in pursuance of a Bill of L-ading — Consignee who is the Abso- lute Owner of Goods Liable to Pay General Average — To avoid inconvenience of Resorting to Consignor — Expenditure not Incurred by Master as Agent of Shipowner — When Defendant does not become Liable to Pay any Contribution — Whst " General Average " means in Insurance Law — Captain of Ship in Cases of Need entitled to incur Extraordinary Expenditure — Case of Xoiara v. Henderson — When Extraordinary Expenses are Charged as a matter of Practice 32-42 Chapter IV. — Apportionment of Contribution — The fixed and well- ascertained Rule of Mercantile Law — The Phrases in Decided Cases indicating Cost of Repairs — Principle on which Freight to Contribtite to General Average — General Average Losses — Loss arising in con- sequence of Extraordinary Sacrifices — What Constitutes a General Average Loss — Case of Svensden v. Wallace, the Leading Case on Subject — Judgments of the late Lord Esher and Bowen L.J., in reference 10 General Average Loss — Common Sea Risk Defined — Where thing Destroyed has some Peculiar Condition — No existence of General Average without Intentional Sacrifice — Expression "Hopelessly Lost," what it signifies — Exception "Fire on Board " in Bill of Lading .... 43-61 Chapter V.— The two Conditions necessary in order to make Jettison the subject of General Average — Long continued custom has created Claim called General Average— Where Steam Power substituted for Sailing Power — English Law quite clear where Equipment of Ship is employed for its Ordinary Purpose — Where endeavour made to Float Stranded Steamship— An Imminent Peril must Exist in order to Claim Contribution— Liabilities of Shipowner existing upon Bills of Lading — Where Insurance is upon each Package Separately — Where Armed Force Boards a Ship — Rule of Law that Master may, in Urgent Cases, Sell part of Cargo of Ship — Ship Disabled by Perils of Sea from Pursuing her Voyage— Expenditures — Determination of question of Destructive Total Loss — Services Rendered by getting Ship away from place where she Stranded — Ship going to Sea wi;h Less Hands than she ought to do . 62-75 Chapter VI. — Contribution does not arise from any Contract — The two well-established Exceptions to the Rule of Contribution — Good Answer to Claim for Contribution if Ship was Unseaworthy — Case ' of Bvrton v. English — Case of Anglo-Argentine Live Stock and CONTENTS. vii PAGES Produce Agency v. Temperley Shipping Co?«^a«y— Profession or Calling of an Average Stater or Average Adjuster — What Circum- stances must be Considered prior to making an Adjustment — Case of The Brigella — Question whether Underwriters of Policies on Ship and B'reight are liable to pay certain Proportions of certain Expenses incurred by Assured— Interests which Contribute to General Average —Interests which do not Contribute to General Average — Latest Case on subject of Particular Average 76-8g APPENDIX. Genekal Average. York-Antwerp Rules, 1890 . . 91-102 Standard Form of'Salvage Agreement . . 103-106 Lloyd's Form of Respondentia Bond . . 107-108 Lloyd's Form of Bottomry Bond . .... 109-110 Lloyd's Average Bond . . . . . ni-112 Average Agreement Approved by the Liverpool Under- writers' Association .... . . 113-115 Index 117 THE LAW AFFECTING GENERAL AND PAR- TICULAR AVERAGE. (FOR THE USE OF UNDERWRITERS AND OTHER PERSONS.) CHAPTER L The Expression " Average " a Foreign Word — Average vari- ously Defined — Term Average as used in a Contract of Marine Insurance — Tfie Two Kinds of Average — What General Average is for — General Average Loss to which Contribution must be made — Liability of Goods Saved Contribute Proportionately — What Parties to a- Policy of Insurance Tacitly Agree to Do — Custom as to Loss Estimated at Two-thirds — Liability of Insurers in Single Loss — Money Paid in Advance by a Charterer — Object of Inserting the " Suing and Labouring " Clause in a Policy of Marine Insurance — Marine Insurance Policy containing Express Contract — Qascoi Randall y. Cochrane. 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 I 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 further been defined as "the contribution to a general loss ". The term " average " used, then, in a contract of marine insurance, signifies the whole purpose of the contract, namely, averting from the indi- vidual adventurer by interposition of the under- writer of all immediate consequences of peril. In other words, it is a rateable contribution to the damage caused to part of the adventure by a common peril. There are two kinds of average, namely, general and particular. General average is for a loss incurred, towards which the whole concern is bound to contri- bute pro rata, because it was undergone for the general benefit and preservation of the whole. Simple or particular average is not a very accu- rate expression, for it signifies damage incurred by, or for one part of the concern, which that part must bear alone ; so that, in fact, it is no average at all. However, the expression is, perhaps, sufficiently understood and received into common use. For instance, the loss of a cable or anchor, etc., are matters of simple or particular • average, for which the ship alone is liable. Assuming a cargo of wine turns sour on a voyage, it would be a matter of simple aver- age, which the goods alone must bear, and there might be a general average, for each would be severally liable under a misfortune happening to both ship and cargo at the same time, and from a common cause ; as, for instance, if a waterspout should fall upon a cargo of fruit, and a plank from the same violence should be loosened at the same time. General average is that loss to which contri- bution must be made by both ship and cargo ; the loss, or expense which the loss creates, being incurred for the common benefit of both. Under maritime policies of insurance, in the ordinary form, underwriters are responsible for the contributions made by the insured, subject for loss by jettison of cargo, anchor, sails, ex- penses for temporary repairs, loss of cables, etc. — the general rule being that the amount made good in respect of property sacrificed is brought in as contributing rateably with the property saved, and the first named pays the same proportion of general average as the latter. " 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 oi 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 j^^^/fy average." The liability of the goods saved to contribute proportionally with the rest to general average and salvage in no way depends upon the policy of insurance. " It is a consequence of the perils s of" the sea, first imposed, as regards general average, by the Rhodian Law many centuries before insurance was known at all, and in reference to salvage by the maritime law, not so early, but at least long before any policies of insurance tn the present form were thought of" If the owner of a ship has irtsured it, and it becomes so damaged that, though it is capable of repair, the expense of repairing it will exceed its value, such owner may treat the ship as totally lost, and recover a total loss, the under- writers who pay that total loss being entitled to all that is saved. The assured is not, even then, bound to do so. The parties to a policy of insurance on a ship tacitly agree, in case of repairs fairly executed, to replace damage occasioned by one of the underwritten perils to a ship of the age and character to which the custom applies, the custom being that the loss shall be estimated at two-thirds of the cost of the repairs, neither more nor less. Obviously, this can very seldom be the accurate measure of the loss. In most cases the rule operates favourably for the under- writer, as the shipowner in spending money on repairs seldom benefits his ship to the extent of one-third, and in such cases the payment of the sum so fixed by custom falls short of a perfect indemnity. In some cases the benefit to the ship exceeds one-third, and there the assured receives more than a perfect indemnity. But if it were lawful to open the question and depart from the rule in any case, the whole object of it, which is to avoid litigation and expense, would be frustrated. No authority exists for any qualification of the general rule. If the rule is applicable, two-thirds of the expenses of repairing the sea damage are to be charged to the ship. The expenses of making additions to the ship are not of course to be charged ; they are not in any way a consequence of the perils of the sea. Apr parently, more than the subscribed amount may be recovered where there are successive losses, but cases of this nature must undoubtedly be supported by evidence of inveterate practice.' Be this as it may, "the liability of insurers in a single loss is without question limited to the amount insured, and the expense of suing, etc." Moreover, in a policy of marine insurance general average and salvage do not come either within the words or the object of the suing and labouring clause; "The words of the clause are that in case of any misfortune it shall be ' See Phillips on Insurance, sec. 1,743, quoted by Lord Blackburne in Aitchison v. Lohre, 4 App. Cas. 879, p. 763. lawful 'for the assured, their factors, servants, and assigns, to sue, labour, and travel for, in, and about the defence, safeguard, and recovery of the subject of insurance, 'without prejudice to this insurance, to the charges whereof we the insurers will contribute'." The object of this is to encourage and induce the assured to exert themselves, and, in conse- quence, the insurers bind themselves to pay in proportion any expense incurred, whenever such expense is reasonably incurred for the preserva- tion of the thing from loss, in consequence of the efforts of the assured or their agents.. It may be here incidentally mentioned that there have been very few cases in our courts in which it has become necessary to discuss the nature of the suing and labouring clause. It should, too, be particularly noted that the suing and labouring clause in a policy of marine insurance is inserted by the underwriters for the purpose of securing the benefit of any pains that the shipowner might be inclined to take in pre- serving, for their benefit, as much as he possibly could preserve. Money paid in advance by a charterer or shipper of goods is not in strictness freight ; it has been called more properly " the price of the privilege of putting the goods on board the ship to be conveyed to their place of destination ; " but great latitude is allowed in describing the in- terest in a policy of insurance, provided that the nature of it is intelligibly disclosed, and there seems no reason why the money advanced may not be insured as freight as well as the money to grow due on the charter, which is undoubtedly insurable as freight, although not properly freight, and rather the price of the hire of the ship. " Money advanced on account of freight " does not necessarily indicate that the insurance is effected by the charterer or shipper, and that the freight paid in advance is at his risk, not at the risk of the shipowner. If this be a fact, and a fact material for the defendant, he ought to raise the question by some plea to that effect. Assuming that there is, by a policy of marine insurance, an express contract that the under- writers shall be liable for general average, an alleged usage cannot be set up as a bar to the action, for it is entirely in derogation and con- tradiction of the written contract. Usage may be relied upon to show the sense in which an expression found in a written contract is used in a particular trade ; and a usage, consistent with a. written contract, may be introduced into it, as both parties, being aware of it, may be supposed to intend that it shall form part of their bargain. But to let in verbal evidence of a usage for the purpose of contradicting and nullifying an express written contract would be contrary to all principle, and has been forbidden as often as the attempt has been made. A defendant cannot, in an action on a policy in the usual form on ship, boats, etc., set up a usage that under such a policy the underwriters cannot be called upon to pay for the loss of boats slung on the outside of the ship upon the quarter. Lord Lyndhurst once said: "It was not to explain any ambiguous words in the policy, any words which might admit of doubt, nor to introduce matter upon which the policy was silent, but was at direct variance with the words of the policy, and in plain opposition to the language it used." Usage may be admis- sible to explain what is doubtful ; it is never admissible to contradict what is plain. In reference to the question whether contri- bution must be claimed in the first instance from the parties concerned, it may be stated that it is not a condition that the assured or goods must claim contribution by the other parties for a jettison before he can demand indemnity from his underwriters ; he may de- mand it of them in the first instance. There is a remedy against the owners of the ship and to the remainder of the cargo, if they ultimately arrive safely at their destination, for part of the loss ; but this does not affect the plaintiffs' right against the underwriters, who will then be entitled to stand in their place, and recover contributions from the other parties who are liable. Moreover, if the vessel or any part of the cargo arrived safely in consequence of the jettison, the owners must contribute to the loss sustained by the owners of the goods so sacrificed for the general advantage. The result is that the owner has two remedies — one for the whole value of the goods against the underwriters, the other for a contribution in case the vessel arrives safely in port, and he may avail himself of which he pleases, though he cannot retain the proceeds of both, so as to be repaid the value of the loss twice over. This is the usual case where there is an insur- ance, and a loss following therefrom within its terms, which would be total but for the liability of a third person. This was decided in the case a{ Randall v. Cochrane} In that case a vessel had been taken by the Spaniards, and the underwriters had paid as for a total loss. Re- prisals having been made, the commissioners who were appointed to indemnify those who had ' Yes. Sen., 98. il sustained losses refused to entertain a clairri made by the underwriters, but the assured having obtained from them a contribution over again towards their loss, the underwriters filed a bill, and it was held, not that the loss was not total, but that the underwriters having indemnified the assured, whatever the assured received from the commissioners must be held by them as trustees for the underwriters. If the assured proceeds against the underwriters in the first instance, the latter cannot avail themselves by way of plea of the fact that the assured has a distinct right against some other person. They must pay the amount fixed in the first instance, and will then be entitled to use the name of the assured, and proceed against the other parties who are liable. Questions of this kind have arisen in many forms, and always have been decided the same way. In short, when the assured have made a contract with the underwriters that they shall be paid the sum insured in certain events which have happened, they are entitled to look to that contract for their indemnification indepen- dently of their other rights. CHAPTER II. Lender upon Respondentia not Liable to Average Losses — Case of the Bella Leandra — English Underwriters Bound by Foreign Adjustment — English and American Law in reference to General Average Loss or Contribution — Par- ticular Average Loss or Total Loss — English Policies must be Construed according to English Rules of Con- struction — Underwriters and Merchants with respect to Foreign Adjustment — General Average Adjustment — Meaning of words " General Average " in ordinary Eng- lish Policy — Little information on Question as to when Voyage Terminated at an Intermediate Port — Where Adjustment is to take place at Port of Ultimate Destina- tion — Principle on which Loss to Individual is Based — Question of Value of Goods Jettisoned — Amount of Con- tribution must depend upon Actual Value of Goods^ English Contract Governed by English Law — What Obli- gation to Contribute depends on — Where Average to be Adjusted at Place of Destination — Jettison where there are several Shippers whose Goods belong entirely to Sub- jects of Country at which Ship has Arrived — Owner of British Ship may avail himself of Statement of Average made in Foreign Country — What a General Average Adjuster ought to Exclude — What the words " General Average as per Foreign Adjustment " signify — Assured not at liberty to Approbate or Reprobate with respect to Foreign Adjustment. By the law of England, a lender upon respon- dentia is not liable to average losses, but is entitled to receive the whole sum advanced, (12) 13 provided ship and cargo arrive at the port of destination. In one case, the plaintiffs (mer- chants in London) had insured with the defen- dants (underwriters in London) by a policy dated the 23rd July, 1867, a cargo of rye on board the Italian vessel the Bella Leandra, on a voyage from Taganrog to Bremen. The vessel, after sailing on the voyage insured, was compelled by severe weather to put into Constantinople in distress, and the master there, in order to raise money necessary for repairs, so as to en- able the ship to continue her voyage, executed a bottomry bond on the ship, freight and cargo, to secure the repayment of ^2,353 4s. on the arrival at Bremen. The ship having sailed from Constantinople, was compelled, by further severe weather, to put into Malta in distress, and the master was there obliged to execute another and similar bottomry bond on ship, freight and cargo, to secure repayment at Bremen of ^465 6s. 5d. The vessel arrived at Bremen, and the captain was unable to take up either bond. Messrs. , who had become owners by purchase of the cargo of rye, took up both bonds, and in order to obtain delivery of the cargo, paid off the owners of both. This was found by the case to be the only course by which the Messrs. could obtain posses- 14 sion of the cargo. The special case then found that "a statement of average," dated the 3rd August, 1868, was prepared by an average stater in Bremen, in which the loss arising upon the said bottomry bonds was apportioned be- tween the cargo and the ship and freight and the cargo as follows': ^1,088 14s. iid. as fall- ing upon the cargo, and ^1,185 iis. upon the ship and, freight. It was held that the under- writers were bound by the average statements so made, and, consequently, that the assured were entitled to recover the £662, 2s. lod. It is clearly established that upon a policy on an insured voyage to terminate at a foreign port, English underwriters are bound by the foreign adjustment as an adjustment, if made according to the law of the country in which it was made. They are bound, although the con- tributions are apportioned between the different interests in a manner different from the English mode, or though matters are brought into, or omitted from, general average, which would not be so treated in England ; and underwriters, if they are not absolutely bound to accept the foreign adjustment as rightly made, if dona fide made, must assume it to be rightly made, if bona fide made, until the contrary be clearly proved. "When a general average is fairly IS stated in a foreign port, and the assured is obliged to pay his portion of it, he may recover the amount from the insurer, though the average may have been settled differently from what it ivould have been at the home port." Moreover, " the lex loci is that underwriters shall reimburse general averages if within the perils insured against, according to the apportionments made and contributions exacted abroad at the port of destination!' According to English and American law, the underwriter of a policy in the ordinary form is not liable to indemnify against any general average loss or contribution, whether it be general according to the law of his own country or according to the law of the foreign country in which the voyage terminates, or whether the adjustment be made according to the domestic or to the foreign law, if the general average loss be not incurred, or the general average contribution be not made, in order to avert loss by a peril insured against. " Underwriters are liable to make indemnity by payment of either a particular or general average or total loss only in case of its being caused by the perils insured against." Obviously, this must be so in case of a par- ticular average loss or a total loss. And a i6 general average loss, as meaning the loss to the person who suffers damage, is no more than a particular average loss to each of the parties who has to suffer or contribute in respect of it. By the word general is only meant that the loss is only to be generally distributed, or the contribution to be generally made by all. It is the loss to each and all caused by a sea peril which must in this, as in other cases, be the loss caused by a peril insured against. "So far as general average is occasioned by perils insured against, the insurers are liable for it in proportion to the amount insured. Mr. Justice Story says: "General average is only payable where it is a consequence, or result or incident of some peril insured against." English policies must be construed according to English rules of construction ; and among those rules are two : first, that the court must, if possible, give some effect to words apparently used as words of obligation in a written instru- ment made between parties ; and the other, that the words are rather to be construed so as to impose a burden on the person who apparently assumes them as obligatory. Underwriters and merchants know well that there Is a diversity in the effect of foreign adjustments. No doubt it is competent to an 17 underwriter on an English policy to stipulate, if he think fit, that such policy shall be construed and applied in whole or in part according to the law of any foreign state as if it had been made in and by a subject of the foreign state. A claim for average contribution is part of the law of the sea. The obligation to contribute in general average exists between the parties to the adven- ture, whether they are insured or not. The fact of a party being insured can have no influence upon the adjustment of general average, as the rules are entirely independent of insurance. If a contributing party is insured, he can claim an indemnity in respect of the contribution which he has been compelled to pay in general average, but that is all. In some cases, how- ever, an assured may have a right to recover in full for the loss of sacrificed property, but the underwriters have the right to recover contribution from the various contributories, and, subject to certain differences of values, the result to the underwriters should be prac- tically the same as if the assured had only claimed his contribution from them. The con- tribution is based on the benefit derived from the sacrifice by each interest, in other words, on the values saved, and in the case of freight this is the amount of freight at risk, less the i8 expenses of earning it, which would have been saved if the ship had been lost. Now, this net amount of freight is not the amount of freight which the underwriters on freight would have to pay if the ship had been lost, because they would have to pay the gross amount insured without deducting any cost of earning it, which would have been saved if the ship had been lost. General Average Adjustment. — The words " general average as per foreign statement," the usual memorandum contained in a marine policy of insurance, only make the underwriter liable in respect of a contribution which the cargo owner has to pay to such a general aver- age 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 an impossibility to adopt the foreign rule as to what the cargo owner was to contri- bute, and exclude it as to other matters. As we have pointed out above, long before a policy of insurance was thought of, by the law of the Rhodian Republic it was laid down that where there was a common adventure of the t9 property of several, if it became necessary, in consequence of perils of the sea, purposely and intentionally to sacrifice part of the property adventured for the preservation of the rest, the owners of the property preserved should contri- bute to the loss of the owner of that which was so sacrificed for the common benefit. This law has since been adopted in the code of every civilised country ; but, unfortunately, there has been a difference in different countries as to what ought to be considered a sacrifice for the common benefit, and, consequently, a general average loss. The law of England does not consider, when a stress of canvas is put on to avoid a leeshore, and the ship is thereby strained, and water gets in to the damage of the cargo, that there is any intentional sacrifice made of part of the property imperilled for the good of the common adventure. It seems that accord- ing to the law of France and at Constantinople this would be a general average loss, though by English law it would not. In an ordinary English policy the words " general average " would refer to that which was, according to English law, a sacrifice for the general good. Inconveniences may arise in this respect, because, when vessels are bound to a foreign country it frequently happens that 20 the ship and cargo are taken possession of by a foreign Court of Admiralty, and the adjustment of average takes place according to the foreign law. It is a question that has never distinctly been settled whether, under an ordinary Eng- lish policy, in such cases the English underwriter could be compelled to bear what was held to be a general average loss by the law of the foreign country ; and, therefore, to avoid this difficulty, express clauses have been inserted in policies. Some of such clauses have been framed on the footing that when the vessel was caught in a foreign country, and contributions had to be paid, the underwriters should .bear those payments. Suppose cargo belongs to two owners, the plaintiff and another, and damage has been done to that part belonging to the other owner, the plaintiff's part of the cargo would have to con- tribute according to French law. Such a case would come within the terms "general average as per foreign statement," and the underwriters must bear the loss. In fine, the meaning of the words "general average as per foreign state- ment" is that although average is not to be recoverable unless general, what is general average is to be determined by the rules of the foreign law. 21 There is very little information to be ob- tained upon the question what circumstances terminate a voyage at an intermediate port, when the ship with part of her cargo on board arrives at her port of original discharge. In Fletcher v. Alexander ^ the court was asked to decide the principle by which the average stater was to be governed in estimating the general average contribution to be paid by the ship- owner to the owner of the cargo in respect of jettisoned goods (salt). Two principles were suggested in argument on the part of the plaintiff: first, that the average stater should take the value of the goods at the port of destination ; or secondly, the invoice price, plus the freight, shipping charges and premiums of insurance. The defendant, on the other hand, insisted that the proper estimate was the value of the goods at the port of adjustment. Bovill, C.J., adopted the defendant's view, and not either of those suggested by the plaintiff. The general principle is 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 (that is, where the goods of a par- ticular merchant are thrown overboard in a 1 L.R., 3 C.P., 375. 22 Storm, which may be lawfully done to save the ship from sinking) ; or 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 detention ; in these and the like cases, where any sacrifice is de- liberately 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 rateably 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. What rule, then, is to prevail where a ship has started on a voyage from one country to another, and, a jettison having taken place, the voyage has been brought to an end before her arrival at her port of destina- tion ? Now, where the adjustment is to take place at the port of ultimate destination there appears to be no doubt as to the application of the principle upon which the estimate is to be made, for " 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 ". With reference to the adjustment at the port of destination, where the goods are delivered and freight earned, the goods are taken at their value at that place, including the freight. If, however, after the jettison or the matter which is the subject of average has arisen, and the remainder of the goods are totally lost, and no benefit accrues to the owners of the other goods from the jettison, no contribution 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 sus- tained on the one hand, and the benefit derived on the other. In the case of Fletcher v. Alex- ander, the adventure then in progress, the vessel, in consequence of the damage she had 24 sustained, put back to Liverpool. The ship might have been repaired, and might have pro- secuted her voyage and completed the adventure. A large portion of the cargo, however, had been thrown overboard. The greater part of that which was brought to Liverpool was damaged and not fit to be forwarded. The charterers, who had paid a large sum for freight, did not think fit to forward it. The ship was otherwise employed, and the voyage was broken up at Liverpool at the time and under the circum- stances stated in the case, Liverpool, therefore, was the place at which the average contribution was to be adjusted, and the time for adjustment was on the arrival of the vessel at Liverpool. The adjustment must, then, in that case, be according to the law of England, and it seemed to the learned judge that the value must be determined at Liverpool. In dealing with the question in respect of the value at which the goods jettisoned are to contribute, the ultimate place of destination has, seemingly, no application. The amount of contribution must depend on the aciua/ 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- 25 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 would in all probability have arrived undamaged at the place of adjustment, apparently, there is no reason why their value at the time of the jettison should not be taken. An English contract (as stated above) must be governed in point of construction by the law of England, unless the parties are to be understood as having contracted on the foot of some other known general usage amongst mer- chants 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 demand- able. The general average, to which alone the underwriters' indemnity is confined, is gener^d average as understood by the law of England. 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 to the contract. Many variations there are, however, in the laws 26 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, which is the place of the ship's des- tination 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. This appears to be the case in Russia. The next question to consider is, if the aver- age is to be adjusted at the place of destination, by what law shall it be adjusted ? Where there are several shippers, even if all are British subjects, obviously it will in the case of jettison be for the interest of the person whose goods have been lost that the master should exercise his power of detention in order that the expense and inconvenience and delay of actions and suits may be avoided. Now, if the goods belong entirely to the subjects of the country at the port of which the ship has arrived, they cannot with any reason complain of an adjustment made under the authority of their own law. In a case of this nature it could hardly be contended that 27 as between them and their master, or between some and others of them, the adjustment ought to be regulated by any other law than their own ; for assuming that the goods belong to persons of different nations, the adjustment must be made either according to some one law regulating the whole, or it must be made in parts, according to as many different laws as there happen to be persons of different nations concerned in the adventure. In this case, also, the law of the country must prevail, for it will not impugn any known doctrine or rule of the English law. The shipper of goods tacitly, if not expressly, assents to general average, as a known maritime usage, which may according to the events of the voyage be either beneficial or disadvantageous to him. By assenting to general average he must be understood also to assent to its adjustment, and to its adjustment at the usual and proper place ; and further, he must be understood to consent also to its adjustment according to the usage and law of the place at which the adjustment is to be made. This is, of course, in a case depending upon general rules and reason, and not upon a special or particular contract. It is hardly necessary to point out to our readers that it is of the greatest importance to maritime commerce 28 that its regulations should be as simple and as few in number as general justice will permit. "The wisest and most equitable rules may occasionally, in a particular case, be productive of an inconvenience, but such occasional and particular inconvenience is a much less evil than the confusion and uncertainty that never fail to accompany a multiplicity of minute regu lations." The owner of a British ship may avail him- self of a statement of average made in a foreign country, so as to charge shippers of goods or a freighter under an agreement for charter entered into in this country, with the expenses of wages and provisions included in such state- ment pf average, according to the practice of the foreign country where it was made. In other words, under a charter made in England, the owner of a British ship may avail himself of a statement which sets forth the expenses of wages and provisions for the seamen incurred during the necessary detention of the ship at an intermediate port, although by the law of this country such expenses would not be recoverable as average. The Courts of Holland have held that, al- though a bill of lading contains a clause making a shipowner not responsible for loss or damage 29 caused by the stranding of a vessel where that stranding was brought about by negligence, the shipowner cannot claim from the cargo- owners any contribution for general average. But if this point had arisen in this country it would have been decided that the cargo-owners would be liable for the contribution in general average under circumstances where the action has occurred through negligence, but where by the bills of lading the owners of the ship were not responsible for that negligence. Indirectly, the contract of carriage does vary the position of the parties with regard to the general average, because it varies the risks which the general interests are exposed to. The operation of saving is taken for the benefit of both the ship and the -cargo, the freight standing in the same position as the ship ; and, therefore, the captain — who at this time, under ordinary circumstances, acts as agent for the person whose property is at risk, and spends money on behalf of all who are interested— and all who are interested must contribute to it ; therefore the shipowner ought only to contribute so much, and then the under- writers who have indemnified have got to re- coup him what he has paid. " A general average adjuster ought to exclude 30 claims for partial losses not incurred for more parties than one, and claims under the suing and labouring clause for saving the ship alone. But he must decide what expenses, alleged to have been incurred for the benefit of both ship and cargo, are to be treated as general average expenses, and what are not ; and expenses which are treated by him as general average expenses must be so treated not only as between the re- spective 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." ^ It was stated in th^t case by Smith, L.J., that the clause in a marine policy " general average as per foreign statement " meant that in case of a loss giving rise to general average, items of expenditurewere to contribute to general average according to Dutch law, and that this excluded the view that such items were to be particular average according to English law. He meant to the suing and labouring clause. Again, the assured is not " at liberty to approbate and reprobate, to take the benefit of the foreign law in claiming general average in ^ Per Lindley, L.J., in the Mary Thomas, L.R.P., 1894, pp. 123, 124. 31 accordance with it, and repudiate the foreign adjuster's award for the purpose of claiming particular average against his insurer upon an adjustment made by an English average stater." CHAPTER III. Case of Hendricks v. A ustralasian Insurance Company — Master of Ship no Right to insist upon Arbitrary Payment — Ship- owner who requires Consignee to Enter into Bond — Person Receiving Goods in pursuance of a Bill of Lading — Consignee who is the Absolute Owner of Goods Liable to Pay General Average — To avoid inconvenience of Resorting to Consignor — Expenditure not Incurred by Master as Agent of Shipowner — When Defendant does not become Liable to Pay any Contribution — What " General Average " means in Insurance Law — Captain of Ship in Cases of Need entitled to incur Extraordinary Expenditure — Case of Notara v. Henderson — When Extra- ordinary Expenses are Charged as a matter of Practice. In the case of Hendricks v. Australasian In- surance Company^ the question was whether 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 ' L.R. 9, C.P. 460. (32) 3Z amounting to lo per cent, on each series^ 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 im^naterial; such other policy, if there be one, not being so incorporated 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 will have will be particular average where there has been a stranding, sinking or burning. The words ''to pay all claims and losses on Dutch terms, and according to statement made up by official dispacheur in Holland" will have no meaning unless they are incorporated with, and govern the interpretation of, the earlier words. The whole of the sentence must be read together. Again, 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 contribution, plaintiff, by the terms of the bill of lading, had 3 34 made the admitted practice of average adjusters part of the contract, and he was bound by it although erroneous.' Moreover, where the poHcy declared does not refer to or incorporate any other policy, it is to be construed' as if there had been no other policy in existence. The master of a vessel has no right to insist upon payment of an arbitrary sum without furnishing the necessary account or particulars to enable the owner to ascertain how this amount became due. If the master refused to furnish such particulars, so as to enable the plaintiff to ascertain the extent of the de- fendant's lien, he is guilty of a breach of duty within the terms of section 6 of the Admiralty Court Act, 1 86 1. But if, after giving all proper information, the master were to say : " You must either pay the amount which 1 demand from you, or you must pay the right sum," the owner of the cargo could not insist upon paying the amount into a bank in the name of persons other than the shipowner, but must pay him either the amount demanded, or tender that which he (the consignee), believes to be reason- able. If, however, the master had said that, whatever might be the amount of the sum ' See Stewart v. West India and Pacific Steamship Company, L.R. 8, Q.B. 88, 363. 35 tendered by the consignee, he would accept nothing but a particular security, then the ques- tion would arise whether the security which he demanded was a reasonable one. " If he (the captain), says that he will only accept a deposit of lo per cent, on the value of the goods, this as a general rule would be only unreasonable." Take the case of salvage. The ship is in distress and is succoured by salvors, and the master makes a compromise with them for the payment of a large sum, and it may turn out upon the final settlement that a large part of the salvage will fall on the shipowner, and yet, under the terms of the bond, the master is to be at liberty to take the whole amount of the salvage out of the deposit, the only security for the payment of what ought to be returned being the credit of the shipowner. If the shipowner requires the consignee to enter into a bond in particular terms, the ques- tion arises whether the bond is unreasonable, and if part of what is insisted upon is unreason- able, the whole instrument is unreasonable. It is undoubtedly true that if a person receives goods in pursuance of a bill of lading, in which it is expressed that the goods are to be delivered to him, he paying freight, he by implication engages to pay freight, and so he would to pay 36 general average, if they were mentioned in the bill of lading. The master has a lien on the goods for general average, and if he had exer- cised that right, and informed the defendant that if he took the goods he must pay the general average, and if the defendant after such notice had taken the goods, there would then have been an implied, if not an express contract on his part to pay it. The law, however, will not imply a contract from the mere fact of knowledge that the goods were subject to a charge, unless it were accompanied with notice from the shipowner that he would insist on his right of lien. If there is any established ysage that a consignee shall pay general average there must be evidence of an agreement on the part of the defendant to pay. Moreover, for a defendant to pay general average in one case it is not sufficient evidence to raise-by implication a promise to pay in every case. A consignee who is the absolute owner of the goods, is liable to pay general average, because the law throws upon him that liability. But a mere consignee, who is not the owner is not liable, unless before he receives them he is informed by the shipowner or the master that if he (the master) takes them he must pay it. A consignee by taking the goods adopts the contract, i.e., the contract in the bill of lading, the terms of which are : " The master agrees with the shipper to deliver the goods to the consignee, he paying demurrage and freight ". It should also be particularly borne in mind that the law will not imply a contract to pay general average because the defendant, before he received the goods, knew that they were subject to it. There must be an expi^ess contract to pay general average. To prevent the inconvenience of resorting to the consignor, he may insert in the bill of lading an express clause that the goods shall be delivered to the consignee, he paying general average ; or he may insist on his right of lien and refuse to deliver unless the consignee pays or agrees to pay it. The shipowner's parting with his lien on the goods may be a good consideration for an express promise by the consignee to pay general average, but does not raise any implied contract to pay it, even though the consignee has notice that a general average has been incurred. " The cases in which a mere consignee, not the owner of goods, has been held liable to freight or demurrage proceed on the ground that his acceptance of the goods in pursuance of a bill of lading, whereby the shipper has expressly made the 38 payment of freight or demurrage a condition precedent to their delivery, is evidence of a contract by the consignee to pay such de- mand." The earliest case on the subject is that of Roberts v. Holt^ where it was held to be a good custom that if a merchant in Ireland consign goods to a merchant in London, and the master sign a bill of lading, the merchant here shall be liable for freight. Expenditure not incurred on behalf of the master, as agent of the shipowner, for the pur- pose of performing his contract to carry on the cargo to its destination and earn freight is an extraordinary expenditure for the purpose of .c-.aving the property at risk ; but if the expen- diture had been for the purpose of saving the whole venture — ship as well as cargo — it would constitute a general average, to which the owners of each part of the property saved must have contributed rateably, and the captain, and the plaintiff as his agent, has a lien or right to retain each part of the property saved till the amount of the contribution due in respect of it is paid or secured, But this right will only be in respect of the contribution due in respect of that part. He will have no lien on the cargo for the con- tribution due, if any, in respect of the hull. ' 2 Show 615. 39 A defendant does not become liable to pay any contribution merely by the receipt of the goods, unless there was a promise, express or implied, to pay it in consideration of the person who had a right to detain the goods till it was paid or secured, parting with the possession. In insurance law the phrase "general aver- age" is commonly used to express what is chargeable upon all — ship, cargo and freight — and "particular average," to express a charge against some one thing. " General averages are usually cases of sacrifice for the entire in- terest at risk in ship, freight and cargo, and hence called ' general '. But a contribution may be by part of those interests where only a part is in peril and benefited by the expenses and sacrifices. Where expense is incurred on divers articles in common, the adjustment is made by an average on the respective articles according to their value." The captain of a vessel is entitled, in case of need, to incur extraordinary expenses for the protection of a particular article, and in some cases he is compellable to do so. For instance, plaintiffs shipped beans on the defendants' ship, under a bill of lading, to be carried from Alex- andria to Glasgow, deliverable to the plaintiffs' order on payment of freight by consignees. At %0 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 reshipped 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 pro- posed to them to receive the beans at Liverpool on payment of the whole freight. The plaintiffs were ready to receive the beans, but refused to pay more than freight />ro 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 recover 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 express 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 ' See Notara v. Henderson, L.R. 5, Q.B. 346. 41 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 accidents for the necessary and immediate consequences of which the shipowner is not liable by reason of exceptions in the bill of lading. P'or neglect by the master in this respect the shipowner is responsible to the shipper. It may be added that the measure of damages was the amount of extra depreciation in value in consequence of the neglect to dry the beans, after allowing the estimated expense of unship- ping, drying and reshipping. As a matter of practice, such expenses are always charged in the adjustment against the articles in respect of which they are incurred. It is not expressly 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 where the goods owner has trans- ferred the property and then become insolvent. Furthermore, damage to cargo caused by salt water does not come within the excepted perils when, by reason of the place in which it is stowed, it is exceptionally liable to such damage 4i 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 supposed to be worth something to him, in which case he will be held to spend the money necessary to rescue her on his own account, and for his own purposes only, in which case the expenditure cannot be the subject of general average. CHAPTER IV. Apportionment of Contribution — The fixed and well-ascer- tained Rule of Mercantile Law — The Phrases in Decided Cases indicating Cost of Repairs — Principle on which Freight to Contribute to General Average — General Aver- age Losses — Loss arising in consequence of Extraordinary Sacrifices— What constitutes a General Average Loss — Case of Svensden v. Wallace, the Leading Case on Subject — Judgments of the late Lord Esher and Bowen L.J., in reference to General Average Loss — Common Sea Risk defined — Where thing Destroyed has some Peculiar Con- dition — No existence of General Average without Inten- tional Sacrifice — Expression " Hopelessly Lost," what it Signifies — Exception " Fire on Board " in Bill of Lading. Contribution Apportioned. — What is meant by the value of a ship within section 504 of the JMerchant Shipping Act, 1854, "is not the value which the owner would have set upon his ship ; nor is the sum for which the owner may have recently insured his ship the only criterion, although it is one of many criteria, of its value, but under ordinary circumstances, and with the exception of a case where there is no market for a ship of the kind, such value will be taken to be what the ship would have fetched if sold immediately before her loss ". (43) 44 It is a fixed and well-ascertained rule of mer- cantile law that when a ship is, by the perils of the sea, thrown into such a situation that it requires expenditure to make her a ship again, and if the ship, when repaired, will not be worth the sum which it would be necessary to expend upon her, or, in other words, if the expense of the necessary repairs of the ship is greater than the value of the ship when repaired, or (which is the same thing, but not, perhaps, so strictly accurate), if a prudent uninsured owner under such circumstances would not repair the ship, then the loss amounts to a " constructive total loss ". There are phrases in some of the decided cases indicating that it should be shown that the cost of repairs must greatly exceed the value of the ship when repaired, and that it must not be a measuring cast. The 514th section of the Merchant Shipping Act, 1854, clearly intends a boon to the shipowner in giving him the power to apply to the court to put a stop to all actions and suits, and have the amount of his liability at once determined, and the claims of the various parties settled by whom they might otherwise be harassed. It is for the benefit of the shipowner obviously that all those actions should be- Stopped; but where such 45 actions are brought,' the plaintiffs are bound to pay the defendants their costs in actions at law. There can be no claim for interest, as interest is not sanctioned by the Act. Moreover, an order made for payment of money into court is in the nature of a security for the claim, not of liquidated damages. The principle upon which freight is to con- tribute in the case of general average is, that but for the recapture, for which the salvage is paid, it would have been lost. Salvage is a compensation to the salvors not merely for the restitution of the property which has been made by them to the prior owners (for that is pro- perly an act of mere justice on their part), but for the risk and hazard incurred by them, and for the beneficial service they have rendered the former owners in rescuing that property from the danger in which it was involved ; and the persons to contribute to that salvage are the persons who would have borne the loss had there been no such rescue. The charterer of a vessel is, as it were, a purchaser of the part of the freight, and is liable to lose it by the loss of the ship, and he must, therefore, contribute. As to general average losses. Now, where the law gives a right it will also give a remedy, and when once the existence of the right is 46 established, courts of law will adopt a suitable remedy, except under particular circumstances, as where there are no grounds to proceed upon. All ordinary losses and damage sustained by the ship happening immediately from the storm or perils of the sea must be borne by the shipowner. But all those articles which were made use of by the master and crew upon the particular emergency, and out of the usual course, for the benefit of the whole concern, and the other expenses incurred must be paid proportionably by the defendant as general average. " The rule of consulting the crew upon the expediency of such sacrifices is rather founded in prudence, in order to avoid dispute, than in necessity ; it may often happen that the danger is too urgent to admit of any such deliberation." All loss which arises in consequence of extra- ordinary sacrifices made or expenses incurred for the preservation of the ship and cargo come within the term general average, and must be borne proportionably by all who are interested. No English court has any mission to adapt the English law to the laws of other countries ; it has authority only to declare what the law of England is. " A general average loss may be defined as 47 a loss arising out of extraordinary sacrifices made, or extraordinary expenses incurred for the joint benefit of ship and cargo ; and in order to entitle the party sustaining such loss to a general average cojitribution it must appear to have been incurred with a view to the general safety of the whole adventure." The question as to what constitutes a general average loss has been exhaustively discussed in the case of Svensden v. Wallace by the late Lord Esher (Master of the Rolls), and affirmed by the House of Lords. Lord Esher said in that case, " if there is danger to the preser- vation of both ship and cargo from destruc- tion if the ship remains at sea, the act of putting into port to repair is an extraordinary act, w^hich may well be called a general average act. If 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 considered as if it were the sole act or expendi- 48 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, mani- pulated ; the ship is repaired, the cargo is re-loaded, 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 immediate danger, or though the ship only be 49 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 is 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 in which she can be repaired. They are^ there- 4 56 fore, not within the principle. The repairing of the ship has nothing to do with the safety of the cargo. It is done in re.spect of the ship alone. The re-loading 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 port are general average expenses ; that if it is necessary for the safety of both ship and cargo 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 avenige expense. I am of opinion, in the same way and in the same case, that the expenses of warehousing, guarding, or manipulating the cargo, of re- pairing the ship, of re-loading the cargo, of SI taking the ship out of port, of the charges of going out of port, are not general average expenses. . . . Warehousing the c 'rgo, 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. , Re-loading 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 point that if a vessel goes into a port of refuge by reason of an injury done to her 1 See 4 Q.B.D. 342, and 5 Q.B.D. 286. 52 which is itself the subject of general average, the expenses of warehousing and re-loading 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 expenditure voluntarily incurred, and extraordi- nary loss of time and labour voluntarily accepted, S3 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 fro 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 circumstaiT,ces 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 . . . the definition of a general average sacrifice ; the second is, whether such item, though not- itself a general average sacrifice, is, nevertheless, an expenditure caused or rendered necessary by one. No supposed conveniences of calculation, and no practice of 54 average adjusters can justify taking one man's money to pay what by law is another man's indi- vidual loss." [The law of England on this last point {irrespective of the law of other countries), undoubtedly is that when some sacrifice has been made (for example, cutting away masts, 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 imminent danger at the time, yet being rendered neces- sary 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 com- mercial enterprise, would be almost convertible 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 expenditure should have been made to benefit both cargo-owner and shipowner. The ■ idea > See ]oh v. Langton, 6 E. & B. 779, and WaltMw v. Mavrojani, L-R. 5, Ex. 116. 55 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 afifreightment by means of a money contribution levied perforce 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 re-loading 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 re-loading 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 was concerned, by no means warrants the conclusion that the cargo ought in turn to con- tribute whenever any expenditure is incurred, not of saving the vessel and its contents, but merely 1 4 £. ct' B. 500, S6 for the sake of prosecuting the voyage. In the subsequent case of Walthew v, Mavrojani 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 was a general average sacrifice, it was intended further to do something which was not a general average sacrifice, nor directly caused by one. S7 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. Wildtnan ^ the unloading of the cargo, which was necessary for the repairs, was charged to general average, but in that case the repairs, owing to an antecedent sacrifice which neces- sitated them, were themselves held to be general average. In the case of Hall v. Janson (see above), where the unloading was spoken of as chargeable to general average, the question at issue in the action was as to the liability to contribute 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 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. 1 3 M. c£- 5. 482. 58 . . . 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. . . . Re-loading 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 re-load 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 which it entails, and becomes the subject of general average contribution." 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. It may be here incidentally pointed out that by the law of England the expenditure of ammunition in resisting capture by a privateer, 59 the damage done to the ship in the combat, and the expense of curing the wounded sailors, are not the subject of general average. Where the thing destroyed has some peculiar condition attached to it, so that it will be lost whether the whole adventure is saved or not, then its destruction cannot be deemed a sacri- fice. And where a mast is in such a condition that it must have been lost, whether the vessel got safely into port or not, there can be no. sacrifice of it when it was cut away, and the plaintiffs have, therefore, no claim to contribution. General average cannot exist without an in- tentional sacrifice ; but the meaning of the word "sacrifice," and what is comprehended by it is that if anything on board a ship which is cut or cast away because it is endangering the whole adventure, is in such a state or condition that it must itself certainly be lost, although the rest of the adventure should be saved without the cutting or casting away, then the destruction of the thing gives no claim for general average. In other words, where, whether the act relied upon as the act of sacrifice has been done or not, the thing in respect of which contribution is claimed would, by reason of its own state or condition, have been of no value whatever, or would have been certainly or absolutely lost to 6o the owner, although the rest of the adventure had been saved, there is nothing lost to the owner by the act, and therefore there is nothing sacrificed, that is to say, there is no sacrifice. Again, to rhake the meaning of the word " sacri- fice " absolutely clear, there is nothing in respect of which a general average contribution can be claimed, if the thing in respect of which the contribution is claimed was, when thq,act relied upon was done, of no value whatever to the owner. Conversely, where it is possible to save the mast/ The expression "hopelessly lost" signifies "impossible to be saved." Colloquially, a thing is impossible when, according to the ordinary course of human events, no expectation can be entertained that it will happen. "The property destroyed or abandoned must, in all respects, be considered in the same light as if it had been saved, and its value must be estimated accordingly ; and, therefore, where the thing said to have been voluntarily abandoned or destroyed is in such a state, by reason of a peril peculiar to itself, that if the act of sup- posed sacrifice had not been done, it would have very shortly been destroyed without the ^ See Carry v. Coulthard, unreported, but mentioned in Shepherd v. Kottgen, 2 C.P.D. 583. 6i rest of the common adventure being lost, the act of slightly hastening the moment of loss is not an act of sacrifice which enables the owner of the thing to claim contribution. There is no act of sacrifice if within a short time the thing would have been lost by a peril peculiar to itself, and independent of the common peril to which the whole adventure is exposed." A bill of lading contained an exception of " fire on board." The defendants carried goods be- longing 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 these exceptions only applied to the defendants as carriers, and did not relieve the shipowners from the liability for general average contri- bution to the owner of goods damaged by water used in putting out a fire on board. ^ ^ See Schmidt v. Royal Mail Company, 1876, 45 L.J., Q.B. 646. CHAPTER V. The two Conditions necessary in order to make Jettison the subject of General Average — Long continued custom has created Claim called General Average — Where Steam Power substituted for Sailing Power — English Law quite clear where Equipment of Ship is employed for its Ordinary Purpose — Where endeavour made to Float Stranded Steam- ship — An Imminent Peril must Exist in order to Claim Con- tribution — Liabilities of Shipowner existing upon Bills of Lading — Where Insurance is upon each Package Separ- ately — Where Armed Forces Board a Ship — Rule of Law that Master may, in Urgent Cases, Sell part of Cargo of Ship — Ship Disabled by Perils of Sea from Pursuing her Voyage — Expenditures — Determination of question of De- structive Total Loss — Services Rendered by getting Ship away from place where she Stranded — Ship going to Sea with Less Hands than she ought to do. In order to make jettison the subject of a general average contribution two conditions must be ful- filled. First of all, there 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. That is a second condition which must be fulfilled, "and that seems to ex- clude all those cases in which the average staters ought to refuse to allow a contribution upon the (62) 63 ground of wreck." All the writers in this country and abroad appear to be agreed that the ques- tion is whether there is common danger, and whether there is vobmtary sacrifice, although they are not all agreed upon the application in practice of these rules ; but the one case in which English average staters are agreed is that if a mast were sprung, and a part of it were to go overboard with a quantity of spars and sails attached to it hanging on a stay which must give way in a minute or two, whilst in the meantime, by battering against the side of the vessel it adds to the danger, and if the stay were cut to let it go at once, it would be very difficult to say that there was anything more than wreck. In short, if the danger is common and the thing is voluntarily sacrificed, it is con- tributed for rateably. Long continued custom has created the claim called "general average," and to make expenses incurred by the shipowner general average, they must be voluntarily and successfully incurred, or the necessary consequence of a resolution voluntarily and successfully taken by a person in charge of a sea adventure for the safety of the ship and cargo, under the pressure of a danger of total loss or destruction imminetit and common to them. A shipowner must bear 64 the loss of his timber being made use of to aid in making up for the deficient coal. Where a rudder has been carried away, and a spare spar has been cut up to make one, it has been decided to be general average. A certainty of destruc- tion within a short time, unless prevented, is an emergency and imminent. Assuming that a vessel ran for shelter into a river where no supplies could be obtained, and assuming she would have to stay a month unless she got out of the then spring tides ; and also assuming that all her provisions would fail her in that time, and suppose, to get out, she lightens her- self by throwing some heavy cargo overboard, this would constitute a case of emergency and imminent danger, for such is the result of all the authorities. Where steam power is substituted for sailing power, which from injury to the ship had been exhausted, the additional expense of fuel is not to be deemed an extraordinary expense within, the meaning of the rule of general average that it is "a loss arising out of extraordinary sacri- fices made or extraordinary expenses incurred for the joint benefit of ship and cargo ". The true principle as applicable to cases of general average losses is that " if a vessel goes into port in consequence of an injury which is itself 6s the subject of general average such repairs as are absolutely necessary to enable her to prose- cute her voyage, and the necessary expenses of port charges, wages and provisions during the stay are to be considered as general average ; but if the damage was incurred by mere violence of the wind and weather, without sacrifice on the part of the owner for the benefit of all concerned, it falls, with the expenses conse- quent upon it, within the contract of the ship- owner to keep his vessel tight, staunch and strong during the voyage for which she is hired ". The English law is quite clear on the point that where the equipment of the ship is em- ployed for its ordinary purpose, though it may be under circumstances requiring unusual de- mands upon it, there is no sacrifice and no right to general contribution. The shipowner, if he insists that the cargo-owner is bound to contribute in general average, must show that the ship has been in some way injured, that the ship and cargo were both in danger, and that the injury to the ship happened in consequence of an intentional putting her into the danger of injury for the purpose of attempting to save both ship and cargo. As has been before pointed out, the captain of a ship is there to 66 do what he ought to do for the benefit of both shipowner, and cargo-owner, and his duty is to everything he can do to save both ship and cargo. An underwriter can insure himself against the negligence of the master. If an endeavour is made to refloat a steam- ship stranded in a position of peril, the engines are intentionally worked for this purpose, at the risk of damage for the common safety, the damage so caused to the engines is a general average loss, and the value of the coal consumed in working the engines is also the subject of general average contribution, and this matter, looked at purely from a business standpoint, this use of the engines may be fairly regarded as an extraordinary sacrifice, and there is no law to prevent it from being so regarded. Again, a shipper of cargo is entitled in time of peril to the benefit not only of the best services of the crew in order to save his goods, but of the use of all the appliances for that purpose with which the ship is provided. And therefore, where a ship is fitted up with auxiliary steam pumping power, it is the duty of the owner to make some provision for supplying the engine with fuel. Not that he is bound to have on board enough for every possible emergency, but he is bound to have a reason- 67 able supply, having regard to the nature of the voyage, the season of the year, the quality of the cargo, the condition of the ship, and what experience has~ shown to be prudent to provide against under those conditions. If he fails to do so, he cannot call upon the owners of cargo to contribute towards that reasonable supply. " That would be to make them pay for that which he ought to have provided at his own expense, and if under such circumstances the opportunity occurs during a time of peril of buying coals from a passing steamer, he cannot charge their cost as an extraordinary expendi- ture entitling him to general average." Again, it must be shown that an imminent peril existed, and that the master deliberately, and for the sake of preserving the adventure, sacrificed that in respect of which contribution is claimed. It constitutes a general average act where the ship has reached her destination, and, in a certain sense, the voyage is over, and where a great deal of the cargo has been unladen, but some considerable quantity still remains on board, and a fire breaks out in the hold, and in order to save the ship and cargo water is poured down, and by pouring down the water the fire was extinguished and the ship was saved. No authority conflicts with 68 this decision, although formerly such cases were excluded from general average. The practice of average adjusters professes to follow legal principles and authority. But as in former times it seems only to have been d. profesdon, nothing more. If the liabilities of the shipowners upon bills of lading are still existing, this shows that the maritime adventure is not at an end ; and even where the voyage is at an end and a fire breaks out, and the vessel was discharging her cargo, it has been expressly ruled by Cockburn, C.J., that by the general law the liability to a claim for a general average contribution attaches. To put it in another form : A case of an ordinary maritime adventure, the vessel was in port, and had unloaded a considerable part of her cargo ; but a fire had broken out on board, and if it was not checked, there would have been, at all events, a partial destruction of the ship and of the remaining cargo. If she had been scuttled,' great damage would have been done to her. The master poured water into her in order to extinguish the fire, a very reasonable step to take ; but the cargo was damaged and injury was done to it by water. The law of general average is, as we have pointed out before, subject to certain rules ; there must be danger ; there must be an intent to sacrifice. If there 69 is an imminent danger, and if the captain sacrifices part in order to save the rest of the adventure, a claim for a general average con- tribution arises. However, mere bond fides on the part of the captain is not sufficient ; it must be shown that "those circumstances did, in fact, exist which give rise to the right of con- tribution ". It is also insufficient to show that complete destruction was not imminent. The captain becomes, in extraordinary circumstances, in effect the agent for all parties. Furthermore, when under the pretence of preserving the ad- venture, the cargo is jettisoned without due course, the owner will have a right of action against the shipowner for the whole of his loss. Where the insurance is upon each package separately {e.g., a hogshead of sugar separately valued and secured), it is to be treated as a total loss upon each package lost ; but when it is an insurance upon the bulk, unless the loss exceed a certain value upon the particular article, there is no average loss, and there cannot, in such a case, be any total loss of a portion only of the cargo. Assuming that an armed force boards a ship and takes part of the cargo, the underwriters are not liable on a clause which states "the loss to be by seizure by people to the plaintiffs unknown " ; for people in the policy means the governing power of the country. Where after such a seizure the vessel was stranded, and part of the cargo (consisting of corn) taken by the mob at their own price, the loss cannot be recovered as for general average ; but for such part as in consequence of the stranding was damaged and thrown overboard, the in- sured may recover on a clause stating the loss to be by stranding/ It is a rule of law that a master may in urgent cases sell part of the cargo, but such sale raises a promise on the part of the ship- owner to repay the merchant the value of the cargo so sold. If the captain could have raised funds for the repairs of a vessel, the defendants in such a case will not be entitled to a claim for general average. " If in the act of jettison, or in order to accomplish it, or in consequence of it other goods in the ship are broken, damaged, or destroyed, the value of these must be in- cluded in general average, as also must it be if to avoid impending danger, or to repair the damage caused by a storm, the ship be com- pelled to take refuge in a port to which it was not destined, and into which it cannot enter without taking out part of its cargo, and the ' See Nesbitt v. Lushington, 4 T. R.. 783. 71 part taken out to lighten the ship happen to be lost, the loss also being occasioned by the removal of the goods for the general benefit, must be repaired by general contribution." Upon a policy of insurance on goods, where the ship, being disabled by the perils of the sea from pursuing her voyage, was compelled to put into port to repair ; and in order to defray the expenses of such repairs, the master having no other means of raising money sold part of the goods, and applied the proceeds in payment of these expenses, it was decided that the underwriter was not answerable for this loss. A person cannot recover the sum of money which he claims as "money had and received," unless he is entitled to freight. Expenditures. — If anyone is insured in the ordinary form his insurers will have to in- demnify him for general average. No more contribution is exigible from the owner of a parcel of goods that is insured 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 owner. The master is appointed for the purpose of 72 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 autliority 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 themselves 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 latv, to be charged to general average. Nor is it a question of law whether the amount of the sum charged as a disbursement was exorbitant or not. In determining the question of "destructive total loss ' it is tiec^ssEli-y to take into account the liability, if any such existed^ of the cargo and freight to make general average contribution towards the expenses of the ship. When the most convenient mode of saving either ship or cargo, or both, is by raising the ship together with the cargo, the expense required for such raising will be an extraordinary expense for the common benefit of both, and the cargo will be liable to a general average contribution towards the expense ; and further, the shipowner will have a lien on the cargo to secure the payment of that general average. Services rendered for getting the ship away from the place where she stranded, and for trouble taken in transhipping the cargo, identi- fying part of it, and arranging for the sale of another part which could not be identified, such services have nothing in common with general average. The expenses of getting a ship off a sandbank and taking her to a port to be repaired, after the entire cargo has been discharged and in safety, are noi chargeable to general average, but to particular average alone. Again, we may point out that to constitute general average there must be extraordinary expenses incurred for the jgint benefit of ship and cargo. The employ- ment of a steam tug and the cutting of a channel 7A by which the ship was rescued, cannot be the same operation as the unloading of the cargo. By the law of England it" is quite settled that the expenses of bringing the ship, or, after the cargo is safe, of bringing her to a place to be repaired, cannot, under such circumstances, be made the subject of general average. It is not necessary that the damage should be an im- mediate one to the ship; it is sufficient, in order to charge the underwriters, if the loss happen in con- sequence of any peril insured against. In the case of a ship ransomed, the loss is the payment of the money ; there no actual damage is done to the body of the ship, and yet the insured is liable on his undertaking, Or, if a ship be sunk, and afterwards weighed up, the underwriter would be answerable for any expense incurred in weigh- ing her up, as a consequential damage, though, perhaps, the body of the ship sustained no actual injury. When the freight is lost, the wages are also lost. This rule was founded on a principle of policy ; for if sailors were in all events to have their wages, and in times of danger entitled to insist on an extra charge on a promise from the captain to pay them extra wages in con- sideration of their doing more than the ordinary share of duty in navigating the ship, and he gave way to their demands, this fact might 75 make them in many cases suffer the ship to sink. Further, an action will not lie where the contract is made on shore, and the extra work is occasioned by the desertion of part of the crew. If a ship goes to sea with less hands than it ought to do, it is dangerous to life, and if so, it is not incumbent on a plaintiff to per- form the work, and he is in the condition of a free man. "I do not wish it to be inferred," says Dr. Lushington in one case, "that mariners, having completed the vqyage outwards, are com- pellable to make the return voyage when the number of the crew is so small that risk of life may be incurred." ^ ' See the Ariminta {Feran.}, i Sp. Ecc. Rep. and Admis., 239. CHAPTER VI. Contribution does not arise from any Contract — The two well-established Exceptions to the Rule of Contribution — Good Answer to Claim for Contribution if Ship was Un- seaworthy — Case of Burton v. English — Case of Anglo- Argentine Live Stock and Produce Agency v. Temperley Shipping Company — Profession or Calling of an Average Stater or Average Adjuster — What Circumstances must be Considered prior to making an Adjustment — Case oi The Brigella — Question whether Underwriters of Policies on Ship and Freight are liable to pay certain Proportions of certain Expenses incurred by Assured — Interests which Contribute to General Average — Interests which do not Contribute to General Average — Latest Case on subject of Particular Average. Contribution " does not arise from any con- tract at all, but from the old Rhodian laws, and has been 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, when 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 (76) 77 claims of recompense for salvage services are founded. But in any aspect of it the rule of contribution has its foundation in the plainest equity. In jettison, the rights of those entitled to contribution, and the corresponding obliga- tions of the contributors, have their origin in the fact of a common danger which threatens to destroy the property of them all ; and these rights and obligations are mutually perfected whenever the goods of some of the shippers have been advisedly sacrificed, and the property of the others has been thereby preserved. 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- 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 indemnity for 78 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 never 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 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." 79 It will be a good answer to a claim for general average if the ship were unseaworthy at the commencement of the voyage, and that the average loss was occasioned by such un- seaworthiness. There can be no proper jettison from an overladen ship, so long as ship and cargo are exposed to no peril whatever from the action of the sea, but are merely exposed to the inconvenience of being unable to reach their destination in the ordinary course of time. In_a case which came before the Courts of Appeal in 1883 the plaintiffs were timber mer- chants, and they 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 an action was brought for general average contribution against the shipowners, and it was contended 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 two cargoes of iron and timber. A clause in the charter party on which the defendants relied was as follows : 8o ' ' The steamer shall be provided with a deck load if required at /till freight, but at merchants risk." Obviously, this stipulation 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 mer- chants' risk. Now, if there were an improper jettison by the master and crew, this stipula- tion 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 collison or stranding owing to the negligence of the master or crew." ^ In theory a claim for contribution arises by reason of a voluntary sacrifice by the cargo-owner for the benefit of the ship 1 See Burtun v. English, 12 Q.B.D. ai8. Si and cargo, and not from any act done by the shipowner at all. As has been pointed out above, when speaking of contribution, it does not form any part of the contract to carry, nor from any contract at all, but from the old Rhodian Laws, 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 the 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 adven- ture may be saved. The liability to contribute, then, does not arise out of any contract at all, and is not covered by the stipulation in the charter party on which the defendants in that case relied. It was decided that the liability to general average contribution was not covered by any words of the contract in the charter party, and that the defendants were liable. A claim for contribution as general average cannot be maintained where it arises out of any negligence for which the shipowner is responsible, " but negligence for which the shipowner is not responsible is as foreign to him as to the person who has suffered by it." The latest case on the subject of general average that of the Anglo-Argeniine Live Stock 6 82 and Produce Agency v. Temperley Shipping Com- pany, is a case which decides that the de- preciation of Uve stock shipped on board a ship for carriage from Buenos Ayres to Dept- ford was a loss which plaintiffs were entitled to have been 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 at Buenos Ayres a deck cargo of sheep and cattle for carriage to Dept- ford. The contract of carriage stipulated (i) that the steamer should on no account call at any Brazilian or continental ports before land- ing her live stock ; and (2) that average (if any) should be 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, 1894 and 1896, 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 Bakia, arriving there on 27 th April. The put- 83 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 plaintififs, 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 liaving 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. " Surely the question of contribution cannot depend upon the amount of the damage sustained by the sacrifice, for that would be to say that if a man lost all his pro- perty for the common benefit he should receive 84 nothing, but if he lost a part only, he should receive full compensation." It is the safety of the property and not the voyage which consti- tutes the true foundation of general average ; and, therefore, the fact that the general average act had the effect of putting an end to the voy- age is immaterial. "The profession or calling of an average" stater or average adjuster is of comparatively recent origin. The right to receive, and the obligation to make, general average contribu- tion existed long before any class of persons devoted themselves, as their calling, to the pre- paration 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 employ a member of any particular class of persons, or, indeed, to employ anyone 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 the shipowner as representing his view of the 8s 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, 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 repair- ing the particular average damage. In a case decided in the year 1893 the question was whether or not, where a ship is proceeding in ballast to her loading port under or in pursuance of her charter, and the only persons interested in the ship and chartered freight are the shipowners, there can be any general average loss for which the underwriters are liable under a policy on chartered freight containing the " foreign statement " clause. Now, whichever way it is looked at, the obli- 1 Per Lord Herschell in Wavertree Sailing Ship Company v. Love [1897]. App. Cas. at p. 380. 86 gation to contribute in general average exists between the parties to the adventure, whether they be insured or not. The circumstance of a party being insured can have no influence upon the adjustment of general average, the rules of which, as has been pointed out before, are entirely independent of insurance. Where a contributing party is insured, he can claim an indemnity against the underwriter in respect of the contribution which he has been compelled to pay in general average, but that is all. Bearing in mind, then, that there are some cases in which an assured may have a right to recover in full for the loss of sacrificed property, the underwriters have the right to recover con- tribution from the various contributories, and, subject to certain differences of values, " the result to the underwriters should be practically the same as if the assured had only claimed his contribution from them, but this exception does not affect the question we are considering. Be it noted that the contribution is based on the benefit derived from the sacrifice of each interest, in other words, on the values saved, and in the case of freight this is the amount of freight at risk, minus the expenses of earning it, which would have been saved if the ship had been lost, This net amount of freight is not • 87 the amount of freight which the underwriters on freight would have to pay if the ship had been lost, because they would have to pay the gross amount insured without deducting any cost of earning it, which would have been saved if the ship had been lost." The final result of that case was that, as the ship was under charter outward bound in ballast to load for the home- ward voyage, and as the only persons having any interest in the ship and chartered freight were the shipowners, the expenses in question were not a general average loss for which the defendant could be liable under the policy of chartered homeward freight, and as there was no necessity for any foreign adjustment, the " foreign statement " clause had no effect/ The question whether the underwriters of policies on ship and freight respectively are liable to pay certain proportions of certain ex- penses incurred by the assured, the shipowners, and said by them to have been incurred in saving the ship and freight respectively, were in a late case treated as general average by a foreign adjuster, and had been apportioned by him between ship, freight and cargo. The proportions allocated to ship and freight respec- tively had been paid by the underwriters, but 'See the Brigdla [iSgj], Pp. 189, the proportion allocated to the cargo could not be recovered from the cargo-owners, and was therefore lost by them. There was a clause in the policy of insurance in these words : " General average and salvage charges payable according to foreign statement, or per York-Antwerp rules, if in accordance with the contract of affreightment ". No- thing turned on salvage, nor on the York- Antwerp rules. For the purposes, therefore, of that case the clause might have been read short thus : " General average payable according to foreign statement". It is right and perfectly true to say that " 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 alleged to have been incurred for the benefit of both ship and cargo are to be treated as general average expenses and what are not, and expenses which are treated by him as general average expenses 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 something else 89 by those who have agreed to be bound by his decision." There is no authority for plaintiffs to assert that some of the items of expenditure (which have been rightly treated by the foreign ad- juster, according to the particular foreign state where the adjustment took place, as general average charges), are particular average charges according to English law, and if there is such authority, obviously the result would be most unjust to the underwriters.^ An underwriter is liable /or general average, so called, not by force of the express words of his contract, but by the force given to it for centuries. The interests which contribute to general averag^e are the following, namely : gold, silver, and precious stones, and all merchandise put on board for the purposes of traffic which pas- sengers carry but do not have attached to their persons. Interests which do not contribute to general average include seamen's wages and passengers' and crews' provisions. The latest decision on the subject of particular average is that of the Alsace Lorraine^'^ ' See the Mary Thomas, [1894], p. 108. 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 IL — DAMAGE BY JETTISON. Damage done to goods or mer- chandise by water vi^hich imavoidably 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. (9 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. I) 92 ANTWERP [conHnued). 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 pacltages which have been on fire. 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 or cargo, as have been on fire. RULE IV.— CUTTING AWAY WRECK. 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. RULE IV.— CUTTING AWAY WRECK. 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 RULE VI.— CARRYING PRESS OF SAIL. Damage occasioned to a ship or cargo by carrying a press of sail 93 ANTWERP {conHnued). shall not be made good as general average. RULE VII. — PORT OF 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 shall liiiewise 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 94 ANTWERP [continued). stances defined in Rule VII., the wages and cost of jnaintenance 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 XI I.) RULE X. — CONTRIBUTORY VALUES. The contribution to a general average shall be made iipon the actual values ef 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 sustainad 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 95 .\NTWERP {continued). and passage mone) at a risk of two- fifths of such freight, in lieu of crew's wages, port charges, and all other deductions ; deditction being also made, from the value of the property, of all charges inciu'red 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. {h) 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 96 ANTWERP (continned). KULE XI.— LOSS OF FREIGHT. Ill 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.) 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 OF REFUGE, ETC. When a ship shall have entered or been detained 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 upon 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.— AMOUNT TO BE MADE RULE XIL — DAMAGE TO CARGO IN GOOD FOR CARGO. DISCHARGING, ETC. The value to be allowed for goods Damage done to or loss of cargo sacrificed shall be that value which necessarily caused in the act of dis- the owner would have received if such charging, storing, reloading, and goods had not been sacrificed. —(See stowing, shall be made good as Rule XVI. ) general average, when and only when the cost of those measures respectively is admitted as general average.- (See Rule IX.) 97 LIVERPOOL {continued). RULF. xni.— 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," viz. : — In the case of iron or steel ships, from date of original register to the date of accident : Up to I year old (A). — All repairs to be allowed in full, except painting or coating of bottom, from which one-third is to be deducted. Between i and 3 years [B). — One- third to be deducted oft 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 ; other repairs in full. Between 3 and 6 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 6 and 10 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. 7 ^8 LIVERPOOL [continued^ Between lo and 15 years [E). — One-third to be deducted oft" all re- pairs and renewals, except ironwork Df hull and cementing and chain cables, from which one-sixth to be deducted. Anchors to be allowed in full. Over 15 years {F). — One-third to be deducted of all repairs and- re- newals. 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. 99 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. KULE XIV. — TEMPOEAEV 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 I06 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 XH., Antwerp, on page 96.) RULE XVII. —CONTRIBUTORY VALUES. The contribution to a general aver- a'ge 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. lOI Bli 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 the 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 nmch 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 I02 to the Assured, their Factors, Servants and Assigns, to sue, laboui', and travel for, in, and about the Defence, Safeguard and Recovery of the said Goods and Merchandises, and Ship, etc. , or any Part thereof, withoiit 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 ttie consequences thereof, or of any atteinft 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 y.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 Folicy the settlement will be much facilitated if immediate notice be given to the nearest Lloyd's Agent. ) STANDARD FORM OF SALVAGE AGREEMENT (APPROVED AND PUBLISHED BY THE COMMITTEE OF LLOYD'S). NO CURE— NO PAY. On board the Dated tg It is hereby Agreed between Captain of the (afterwards called "the Master") and (afterwards called " the Contractor") as follows : — 1. 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 liis 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. 2. 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 (103) I04 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 for 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. 5. 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. Tf the award increases the remuneration the parties mentioned in Clause 12 shall pay the difference to the Contractor. 7. The flommittee 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 ior 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 los on his own behalf, in which cfise 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. g. 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 io6 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, vis. :■ (i) The owners of the ship, (2) 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 faiUng 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 Deputy 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 thq Committee. LLOYD'S FORM OF RESPONDENTIA BOND. Known ai,l 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) foq the voyage aftermentioned firmly by these presents. Sealed with my seal. Dated this day of i88 Whereas the ship (Original Ship) lately arrived at in distress in the course of a voyage from r 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 forvvard 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 whereas the said being without funds or credit at and urgently requiring the sura 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 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 (107^ io8 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 with 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 dispatched 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 mcurred 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 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 3 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 (109) no 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 obUgation 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 b^unable to com- plete her said voyage, then ifany 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 : PROVIDiiD 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. (Ill) 112 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 and/or 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 said depositors respectively, and pay or refund to the parties heretp 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 and/or general average and/or • particular and/or other charges to be a proper sum or proper sums to 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 and/or 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 ti3 An Agreement ' made this day of tg BETWEEN being the of the Ship or Vessel called 'he " '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 Ship 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 « general average contribution, but the same cannot be immediately ascertained, and in the meantime it is desirable that the cargo should be delivered ; Now 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 deUver 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 adjust- 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 1 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. 8 thereof. And the said Consignees further promise and agi"ee 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 particular 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 f-dllows :— 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 "5 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 thirty 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 in 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. Adjustment, where to take place at port of ultimate destination, 23. at port of destination, 23. rules in reference to, 24. where all shippers are British subjects, 26. expenses charged in, 41. Admiralty Court Act, 1861, 34. Armed Force, where, boards a ship, 6g. Assured, not at liberty to approbate and reprobate, 30, 31. Average, expression — a Latin term, i. in its original form, 1. variously defined, 2. as used in contract of marine insurance, 2. a rateable contribution to damage, 2. two kinds of, 3. term, sufficiently understood and received into common use, 3. customary, 4. petty, 4. what word "general" in reference to, means, i5. contribution part of the law of the sea, 17. where, to be adjusted at place of destination, 26. what owner of British ship may avail himself of in, 28. what constitutes an act, 67. in, there must be danger and sacrifice, 68, 69. Average Adjusters, practice of, 68. a profession — nothing more, 68. in what cases all agreed, 63. profession or calling of, 84. Bill of Lading, where person receives goods in pijrsuance of, 35. " fire on board," exception in, 61. (117) ii8 Cargo, Damage to, caused by salt water, 41. where, as a whole landed safely, 42. Cases Cited : Aitchison v. Lohre, 6. Alsace Lorraine, 89. Anglo-Argentine Live Stock Company v. Temperley Shipping Company, 81, 82. Arminta (Feran), 75. Atwood V. Sellar, 51. Bella Leandra, 13. Brigella, 87. Burton v. English, 80. Carry v. Coulthard, 60, Fletcher v. Alexander, 21, 23. HaZ/ V. Janson, 55, 57, 58. Harrison v. Ba«A of Australasia, 56. Hendricks v. Australasian Insurance Company, 32. Mary Thomas, 89. Nesbitt V. Lushington, 70. Notara v. Henderson, 40. Plummer v. Wildman, 57. Rayidall Y, Cochrane, 10, 11. Roberts v. Hoii, 38. Schmidt v. Royal Mail Company, 61. Shepherd v. Kottgen, 60. Stewart v. W^si India and Pacific Steamship Company, 33, 34. Svensden v. Wallace, 47, «i sej. Wa/Mszf V. Mavrojani, 56. Wa»«yi;'«« Sailing Ship Company V. Lo've, 85. Charterer, a purchaser of part of freight, 45. money paid in advance by, 7. Consignee, who is absolute owner of goods, 36. mere, not owner, 36. Consignor, to prevent inconvenience of resorting to, 37. to pay general average, 37. tig Contribution, whether, must be claimed in first instance, 9. based on benefit derived fi-om sacrifice, 17. rules as to, 24. obligations in reference to, 25. defendant not liable to pay merely on receipt of goods, 39. apportionment of, 43. does not arise from any contract, 76. principle upon which, becomes due, 76. the two well-established exceptions to, 77. claim for, how it arises in theory, 80. when, cannot be maintained, 81. as between parties to adventure, 85, 86. Damage sustained by ship before storm, 46. Desertion of Crew, 75. " Destructive Total Loss,'' determination of, 72, 73. Emergency, what is an, 64. English Contract governed by English law, 25. Expenditure not incurred on behalf of master as agent of shipowner, 38. incurred on divers articles in common, 39. of ammunition, 58. of insured under ordinary form, 71. of bringing ship to be repaired, 74. Extraordinary Sacrifice, loss arising from, 46. Foreign Adjustments, diversity in the effect of, 16. Freight, definition of, 7. " money advanced on account of," 8. principle upon which to contribute to general average, 45. when, lost wages also lost, 74. t20 General Average, loss to which contribution must be made, 3. general contribution, sometimes called by name of, 4. does not come within " suing and labouring clause," 6. when fairly stated in foreign port, .15, dictum of Mr. Justice Story in reference to, iG. obligation to contribute in, 17. " as per foreign statement," 18. meaning of words " as per foreign statement," 18. in ordinary English policy, 19. question whether underwriter compelled to bear loss by law of foreign country, 20. general principle affecting, 21. assent by shipper to, 27. for person to pay, not sufficient, 36. law will not imply contract to pay, 37. must be an express contract to pay, 37. in insurance law, what it is used to denote, 39. cannot exist without intentional sacrifice, 59. long continued custom has created, 63. where rudder carried away and spare spar cut, 64. true principle applicable to cases of, 64. imminent peril must exist in, 67. what act where ship at her destination, 67. good answer to claim for, if ship unseaworthy, 79. latest decision on, 81. safety of property and not voyage which constitutes, 84. interests which contribute to, 89. interests which do not contribute to, 89. General Average Adjustment, 18, et seq. General Average Adjuster, what he should exclude, 29, 30. General Average Loss, 45. defined, 46, 47. Goods, shipowner and master no authority to bind, 72. Holland, Courts of, decision in, in reference to shipowner, 28, 29. " Hopelessly Lost." expression defined, 60. 121 Insurance on each package separately, and upon bulk, 69. Insured, liability of, in single loss, 6. party, 17. where contributing party is, 17, 86. party being, can have no influence upon adjustment, 86. Insured Voyage, policy on an, 14'. Interest, No claim for, under Merchant Shipping Actj 1854, 45. Jettison, a throwing overboard, 21, 22. general principle of, 22. principle of, acted upon in all courts and countries, 22. after, and -subject of average arises, 23. in order to make general average, 62. where cargo the subject of, 6g. where, in act of, other goods are damaged, 70. rights of person entitled to contribution in, 77. no proper, from overladen ship, 79. Jettisoned Goods, value of, 24. actual value of, 24. where, arrive undamaged at place of adjustment, 25. owners of deck, 78. Knowledge, law will not imply contract from mere fact of, 36. Lien, master's, 36. shipowner parting with his, on goods, 37. when right of, only applies, 38. Marine Insurance, liability of goods saved does not depend upon contract of, 4. parties to policy of, what they agree to do, 5. great latitude in policy of, 8. policy of, containing express contract, 8. English policies of, how construed, 16. the two rules relating to policies of, 16. 122 Maritime Commerce, regulations as to, 28. Mercantile Law, fixed and well-ascertained rule of, 44. Merchant Shipping Act, 1854, 43, 44. -" Money had and Received," 71. Particular Average, 3, 4. loss, 15. latest case on, 8g. Peril, imminent, must exist, 67. Phrases, , in decided cases, indicating cost of repairs, 44. Port of Arrival, where goods belong to subjects of country at, 26. Respondentia, lender upon by law of England, 12. Rhodian Law, 18, ig. adopted in every civilised country, ig. Salvage, where ship in distress succoured by salvors, 35. a compensation to salvors, 45. "Sea-Risk, common, defined, 58. Ship, when owner of, has insured it, 5. equipment of, employed for ordinary purposes, 65. where, fitted with auxiliary steam-pumping powe'r, 66. services rendered for getting stranded, away, 73. expenses of getting, off sandbank, 73. going to sea with short hands, 75. "Shipowner, remedy against, for part loss, g, 10. the two remedies of, 10. requiring consignee to enter into bond, 35. must bear loss of timber, etc., 64, Inhere, insists that cargo-owner bound to pay average, 65. liability of, 68. contract of, 71. not bound to have on board sufficient for every emergency, 66. 123 Shipper, money paid in advance by, 7. what, tacitly agrees to do, 66. of cargo, what entitled to in time of peril, 66. Simple Average (see Particular Average). SoiNQ AND Labouring Clause, words of, 6, 7. object of, 7. few cases where it has become necessary to discuss nature of, 7. in policy of marine insurance, 7. Thing Destroyed, where, and peculiar condition attached to it, 59. Underwriters, when assured have made contract with, 11. lcj( loci in reference to, 15. English and American law in reference to, 15. liability of, 15. indemnity confined to law of England, 25. can insure themselves against negligence of master, 66. of policies on ship and freight respectively, 87. ■why, liable for general average, 8g. Usage, when it may be relied upon, 8. inadmissible to nullify express written contract, g. admissible to explain what is doubtful, etc., 9, in reference to general average, 36. Vessel, Master of, no right to insist upon payment of arbitrary sum, 34. where, refuses to furnish particulars, 34. entitled in case of need to incur extraordinary expenditure, 39. must do everything for benefit of both ship and cargo, 66. what, may do in urgent cases, 70. where, could have raised money for repairs, 70. Vessel, where, stranded after seizure, 70. York-Antwerp Rules (see Appendix). OCTOBER, 1900. CATALOGUE OF £egat Commcpcist an6 oWcr HJorfts PUBLISHED AND SOLD BY EFFINGHAM WILSON, 11 ROYAL EXCHANGE, 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 Haupt.O, (Arbitrages etParit^s) 17 Willdey's American Stocks . 26 Arbitration — London Chamber of. . .24 Lynch, H. Foulks Banking — Banking, History of . . .10 Banks and their Customers . 11 BankSj Bankers and Banking . 22 Bibliography (Bank of England) 25 Easton's Banks and Banking . 15 Easton's Work of a Bank . .15 English and Foreign (Attfield) . 11 Examination Questions, Arith- metic and Algebra . . 21 Half-yearly Balance Sheets . 11 Howarth's Clearing Houses . 18 Hutchison, J. . . . 18 Journal Institute of Bankers . 19 Questions on Banking Practice . 23 Scottish Banking . . . 19 Smith's Banker and Customer . 24 Bankruptcy — McEwen (Accounts) . , .20 Stewart (iLaw of) . . 7 Bills of Exchange — Kolkenbeck (Stamp Duties on) . 19 Smith (Law of Bills, etc.) . . 7. Bimetallism — List of Works ... 27, 28 Book-keeping — Cariss . ■. . -13 Carr (Investors) . . 11 Drapers' Accounts . . .15 Harlow'sExaminationQuestions 17 Holah's Double Entry . . 10 Jackson 18 Richardson's WeeklyNewspapers 23 Sawyer 24 Seebohm's (Theory) . . .10 Sheffield (Solicitors) . . .24 Van de Linde . . . .25 Warner (Stock Exchange) . 26 Clerks — Commercial Handbook . . 10 Companion to ' ' Solicitor's Clerk " 19 Corn Trade . . . .23 Counting-house Guide . . 25 Kennedy (Stockbrokers) . . 8 Mercantile Practice (Johnson) . 19 Clerks (continued) — page Merchant's .... 9 School to Office ... 9 Solicitor's ... '19 Correspondence (Commercial) — Beatu-e ' 11 Martin (Stockbrokers) . . 8 Coumbe ..... 13 Gounting-honse — Crowley 10 Pearce 9 Tate 25 County Court — Jones ..... 19 Currency and Finance — Aldenham (Lord) . . .11 Barclay (Robert) . . .11 Clare's Money Market Primer . 13 Cobb 13 Cuthbertson . . . .14 Del Mar's History . . .14 Del Mar's Science of Money . 14 Ellis . . ... .IS Gibbs, Hon. H., Bimetallic Primer 16 Haupt 17 Indian Coinage and Currency . 33 Poor (H. V. ) The Money Ques- tion . . . . 23 Dictionaries — M^liot's French and English . 21 Directors — Haycraft (Liabilities and Duties) 10 Exchanges — Brazilian Exchanges . . 26 Clare 13 Goschen . . . . .17 Norman's Universal Cambist . 22 Tate's Modern Cambist . . 25 Exchange Tables — American Exchange Rates . 11 Dollar (Eastern) . . .19 Garratt (South American) . . 16 Goodricke's Tea Exchange Tables 17 Lecoffre (French) . . . 20 , , (Austria and Holland) 20 Merces (Indian) . . .22 Schultz (American) . . .24 Schultz (German) . . .24 Insurance — Bourne's Publications . . 12 Short-Term Table ... 25 Effingham Wilson, 11 Royal Exchange, London. 3 Interest Tables — F, Bosanquet Crosbie and Law (Product) Cummins (z% °/„) . Gilbert's Interest and Contango Gumersall ... Ham (Panton) Universal . Indian Interest (Merces) . Lewis (Time Tables) . Rutter Sohultz Wilhelm (Compound) Investors (see also Stoclc Exchange Manuals) — Birk's Investment Ledger . Investment Profit Tables . Houses and Land" How Money makes Money How to Invest Money Joint-Stock Companies — . Cummins' Formati on of Accounts Company Frauds Abolition Company Promoters (Law of) . Haycraft (Directors) . Simonson s Debentures and De- benture Stock (Law of) . Smith .... Law (Various Subjects) — Charter Parties .... Copyright Law .... District and Parish Councils (Lithiby) . . . .20 Factors (Law relating to) . . 11 First Elements of Procedure . s Food and Drugs . . s General Average . . 5 High Court Practice . . . 23 Licensing Acts . . . .1.9 Maritime Law .... 5 PatentLawandPractice(Emery) 15 Property Law (Maude) . . 21 Solicitors' Forms (Charles Jones) 19 Thames River Law . . S Workmen's Compensation 24 Legal and Useful Handy Books— List of 7-10 Haps — British Columbia . . 6 Hauraki Goldfields ... 6 Kalgoorlie .... 6 Tasmania, West Coast of . . 6 Witwatersrand Goldfields . . 6 Maritime Codes — Germany . . . . s Holland and Belgium . . 23 Italy ... 23 Spain and Portugal . . .23 24 Mining — PAGE Accounts of G. M. Cos. . . 14 Beeman's AustraUan Mining Manual n British Columbia Mining Laws 12 Charlton's Information for Gold Mining Investors . . .13 Gabbott'sHowto Invest in Mines 16 Goldmann (South African Mining) 16 Milford's Dictionary of Mining Terms 22 Mount Lyell Mining Manual . PauU's Columbia and Klondyke Manual . . . . .22 Tin-Mining in Spain . . .12 Miscellaneous — Arithmetic and Algebra . 21 Australia in 1897 . . .22 Author's Guide . . . .27 On Compound Interest and An- nuities . . . . .24 Cotton Trade of Great Britain . 15 Gresham, Sir Thomas (Life of) . 12 Ham's Customs Year Book . 17 Ham's Inland Revenue Year Book 17 Kew Gardens (Illustrations) . 5 Lawyers and their Clients . . 5, Macfee, K. N . , Imperial Customs Union . . . . ,20 Men of Note in Finance . . 5 Merchandise by Rail (Registered System) 17 Public Man . . . .26- Public Meetings . . .26- Red Palmer . . . ^ 25 Schedule D of Income Tax . 10 Veld and " Street " . . .17 World's Statistics . . .11 Money Market [see Currency and Finance). Pamphlets .27 Prices — Dunsford (Railways) . . .IS Ellis (Market Fluctuations) . 15 Mathieson (Stocks) . 21 Railways — American and British Investors . 26 Dunsford (Dividends and Prices) 15 Home Rails as Investments . 25 Mathieson's Traffics . . .21 Poor's Manual (American) . 23 Railroad Report (Anatomy of a) 27 Railways in India . . .22 Ready Reckoners(^£ealso Exchange Tables, Interest, etc.) — Buyers and Sellers' (Ferguson) . g Commission and Brokerage . 22 Effingham Wilson, PAGE Ready Reckoners (continued) — Hawke's Instantaneous Share Reckoner . . . .17 Henselin's (Multiplication) . 18 Ingram (Yards) . . .18 Kilogramme Tables . . .25 Redeemable Stocks (Mathieson) 21 Merces (Indian) . . .22 Robinson (Share) . . .23 Silver Tables (Bar Silver) . . 16 SinkingFund and Annuity Tables — Booth and Grai iger (Diagram) . 12 Hughes . . . .18 Speculation [see Investors and Stock Exchange). Stock Exchange Manuals, etc. — Contango Tables . . .16 Fenn on the Funds, English and Foreign ..... 15 Higgins, Leonard, The Put-and- Call .... 18 Investor's Ledger . . .21 Investors' Tables, Permanent or Redeemable Stocks . . 18 Laws and Customs (Melsheimer) 21 Laws, EngUsh and Foreign Funds (Royle) . . .24 PAGE Stock Exchange Hanuals,etc.f o» A ) — Options (Castelli) . . .13 Poor'sAmerican Railroad Manual 23 ^ Rapid Share Calculator . . 14 Redeemable Stocks (a Diagram) 12 Registration of Transfers'. . 15 Robinson (Share Tables) . . 23 Rules and Usages (Stutfield) . 25 Stock Exchange Official Intelli- gence 25 Willdey's American Stocks . 26 Tables (i«« Exchange Tables, Inter- est Tables, Ready Reckoners, and Sinking Fund and Annuity -'i Tables, etc.). . Telegraph Codes — Ager's (list of) . . . 29, 30 Miscellaneous (list of) 30, 31 The Premier Code . . 32 Trustees — Investment of Trust Funds . 7 Judicial Trustees Act, i8g6 . 19 ' Marrack's Statutory Trust In- vestments Trustees, their Duties, etc. Wilson's Legal and Useful Handy Books List .... 7-10 11 Royal Exchange, London. NEW BOOKS. MEN OF NOTE, 1900-1, IN FINANCE AND COMMERCE, with which is Incorporated MEN OF OFFICE. A Biographical Business Directory. Edited by Herbert H. Bassatt. Price 12s. 6d. net. FIRST ELEMENTS OF PROCEDURE. By T. Baty, Barrister-at-Law. Price 3s. 6d. net. FOOD AND DRUGS ADULTERATION : A Manual for Traders and others. Being a Consolidation of the Sale of Food and Drugs Act, 1875, Sale of Food and Drugs Amendment Act, 1879, Margarine Act, 1887, Sale of Food and Drugs Act, 1899. By Chas. J. HiGGiNsoN, Barrister-at-Law. Price 2s. 6d. net. THE MARITIME CODE OF THE EMPIRE OF GERMANY. Translated by William Arnold. Price 6s. net. ROYAL BOTANIC GARDENS, KEW. 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