General average usually occurs by a jettison of the cargo, to lighten the ship; or by cutting away the masts and sails or rigging to relieve the ship, which is substantially a jettison of them. (w)

(t) Probably the earliest English reported case on this subject is Hicks v. Palington, 32 Eliz. F. Moore, 297. In 1285, Edward I. sent to the Cinque Porto letters patent, declaring what goods were liable to contribution. See 1 Rymer, Foedera, 3d ed. p 240.

(u) Simonds v. White, 2 B. & C. 806; Lee v. Grinnell, 5 Duer, 431.

(v) Barnard v. Adams, 10 How. 303; Sturgess v. Cary, 2 Curtis, C. C. 66; Nimick v. Holmes, 26 Penn. State, 866.

(w) Walker v. United States Ins. Co. 11 8. & R. 61; Sims v. Gurney, 4 Binn. 525; Porter v. Providence Ins. Co. 4 Mason, 298; Greely v. Tremont Ins. Co. 9 Cush. 416; Scudder v. Bradford, 14 Pick. 13.

1 For a definition of "sacrifice," see Shepherd v. Kottgen, 2 C. P. D. 685, per Brett, L. J.

A principal difficulty here, is to discriminate between a voluntary sacrifice, and a loss by a peril of the sea. Supposing sails are hoisted to get a vessel off a lee-shore, which may be probably blown away, or an anchor cast on a rocky bottom likely to chafe and cut the cable, or catch and break the anchor; and there may be many such cases. The general rule must be, that nothing of this kind creates a claim of general average, unless it was not only done for the purpose of saving the ship and cargo from peril, but was done under peculiar circumstances, which made the loss of the sails or cable or other property almost certain, and unless it would not have been done but to save the rest. But even then it would be difficult to discriminate such cases, from the common effects and perils of navigation, which every ship is bound to encounter. (x)

* There is one kind of sacrifice that has raised difficult questions, which has passed repeatedly under adjudication. This is the case of the voluntary stranding of the ship, by the master. We apprehend, however, that the difficulty which this case presents, lies not in the principle, but in the application of it. A ship is voluntarily stranded by the master, when its wreck is inevitable or nearly so, and the master seeks a favorable place, where the safety of ship, cargo, or life may be more probable. Now, if the master, having, and believing that he has at the time, a chance of saving his ship, which is real and of value, though not a probability, voluntarily casts this chance away, for the purpose of saving his cargo, the cargo saved should contribute to pay for the loss of the ship. But if the ship must be lost at any rate, the mere fact of losing it in one place rather than in another, cannot give to the ship a claim against the cargo. We confess, however, that the cases on this subject are not reconcilable with this principle, or with any principle, or with each other. (y) If in consequence of the stranding the vessel is totally lost, there is a conflict of authority whether the cargo is liable to contribute, but the rule seems now to be settled in favor of contribution in such a case. (z)

(x) See Walker v. United States Ins. Co. 11 8. & R. 61; Birkley v. Presgrave, 1 East, 220; 2 Phillips Ins. § 1286.

(y) The leading case on this point is Barnard v. Adams, 10 How. 270. The vessel was drifting, in a gale, towards a rocky and dangerous part of the coast, on which, if she had struck, she must inevitably have perished, together with the crew and cargo. To avoid this peril, she was steered along the coast, and finally ran on a beach, and all the cargo saved. This was held to be a case for contribution. See also Sturgess v. Cary, 2 Curtis, C. C. 59; Reynolds v. Ocean Ins. Co. 22 Pick. 191; Merithew v. Sampson, 4 Allen, 192; Rea v. Cutler, Sprague, 186; Sims v. Gurney, 4 Binn. 518: Meech v. Robinson, 4 Whirl 860; Walker v. United 8tates Ins. Co. 11 8. & R. 61.

Mere expenses often constitute an average loss. Suppose that some sea peril injures a ship, and compels her to go out of her way to a port of repair, can the ship claim indemnity for the expenses of repair, or for the wages and provisions while going to seek repair? Here also the cases and the usages are not agreed or certain. We should say, however, if we applied *to this question only the general principles of general average, that the ship has no such claim, unless the repairs were themselves made necessary by an injury, caused or sustained, for the purpose of saving the property; or unless the repairs were only temporary repairs, of no permanent value to the ship, and were needed and made only to enable the ship to save and transport the cargo. If repairs were made at a certain time and place for the sake of the cargo, which but for this cause would have been made elsewhere at less cost, then the difference in the cost comes within the reason and equity of general average. (a)1

As to the expenses incurred by seeking repair, the authorities are still more conflicting. It would seem from the English cases, that wages and provisions do not come into general average, unless this expense was incurred in seeking or obtaining repairs of an injury, which was itself an average loss. Thus, whether a mast were cut away to save ship and cargo, or blown away, it would be equally necessary for the ship to seek a port of repair, and her expenses would be the same in both cases. But, in the first case, where the mast was cut away, the wages and provisions would come under general average, because the repairs would have been made necessary by a voluntary sacrifice. In the second, where

(z) Col. Ins. Co. v. Ashhy, 13 Pet 331; Caze v. Reilly, 8 Wash. C. C. 298, nom. Caze v. Richards, 2 S. & R. 237, note; Gray v. Waln. 2 S. & R. 229; Mut. Safety Ins. Co. v. Cargo of the Brig George, Olcott, Adm. 89; Barnard v. Adams, 10 How. 270; Merithew v. Sampson, 4 Allen, 192. The authorities against contribution in such a case are Emerigon, c xii. § xli., Meredith's ed. 475; Eppes v.

Tucker, 4 Call 346; Bradhurst v. Col. Ins. Co. 9 Johns. 9; Marshall v. Garner, the mast was blown away, the wages and provisions would not come under general average, because the repairs would not. (b) In this country, however, it seems to be the usage and perhaps the law, that as in both cases and equally the ship seeks repairs for the safety of the ship and cargo, the expense of seeking it falls on ship and cargo, (c) 1 although the cost of the repairs themselves might rest upon the ship.

6 Barb. 394.

(a) See Padelford v. Boardman, 4 Mass. 648; Ross v. Ship Active, 2 Wash. C. C. 226; Jackson v, Charnock, 8 T. R.5 509; Brooks v. Oriental Ins. Co. 7 Pick. 259; Hassam v. St. Louis Perpet. Ins. Co.

7 La. An. 11; Sparks v. Kittredge, 9 Law Rep. 318.

1 As to whether expenses incurred in discharging, warehousing, and reshipping cargo, pilotage, port charges, and other expenses of leaving port, where a vessel was obliged to put into port to make repairs occasioned by a general average sacrifice, are themselves a subject of general average, see Atwood v. Sellar, 4 Q B. D. 342; 5 Q. B. D. 286.

All maritime property consists of the ship, the cargo, and the * freight. All, or a portion of all or of each, may have been saved by a sacrifice of some other portion; and whatever is thus saved, contributes to whatever is thus lost. The application of this rule is indefinitely diversified, no two cases presenting precisely the same circumstances; and we give in our notes leading cases illustrative of the principal questions which have thus arisen. (d) 2

It may be well to add, that the law-merchant discourages the carrying of goods on deck, in part from the greater danger to goods so carried, but more from the hindrance of navigation, and

(b) This distinction was taken in Power v. Whitmore, 4 M. & 8. 141; but it is doubtful whether it is justified by the preceding case of Plummer v. Wild-man, 3 M. & S. 482. See also Hallett v. Wigram, 9 C. B. 580; De Vaux v. Salvador, 4 A. & E. 420.

(c) Walden v. Le Roy, 2 Caines, 263; Thornton v. XL S. Ins. Co. 3 Fairf. 160; Padelford v. Boardman, 4 Mass. 648; Potter v. Ocean Ins. Co. 3 Sumner, 27 ; The Brig Mary, Sprague, 17; Bixby v. Franklin Ins. Co. 8 Pick. 86; Giles v. Eagle Ins. Co. 2 Met. 140; Greely v. Tremont Ins. Co. 9 Cush. 421.

(d) Expenses of lighterage. Heyliger v. N. Y. Ins. Co. 11 Johns. 86; Lewis v. Williams, 1 Hall, 430. Goods lost after they are put in lighters for the common benefit, are contributed for. Lewis v. Williams, 1 Hall, 430. Expense of storage of cargo. Barker v. Phoenix Ins. Co. 8 Johns. 318; Hall v. Janson, 4 Ellis & B. 600. Damage to goods while stored. Hennen v. Monro, 16 Mart. La. 440. But see The Brig Mary, the consequent increase of danger. Therefore, if goods are carried on deck and jettisoned, this loss gives no claim for contribution. (e) If the owner consented to their being so carried, he bears his whole loss. (f) If, without his consent, the master so carried them, the shipper of the goods may claim his whole loss from the owner, as a loss from unsafe and improper lading by the fault of the master. (g) If the goods are carried on deck in conformity with an established and known usage, the shipper would have a claim on the vessel, and also probably on the goods on deck. (h)

Sprague, 17; Bond v. The Superb, 1 Wallace, Jr. 366. Pumping out a ship. Orrok v. Commonwealth Ins. Co. 21 Pick. 460; Nelson v. Belmont, 6 Duer, 326. Scuttling a vessel. Nelson v. Belmont, 6 Duer, 810; Lee v. Grinnell, id. 400. Ransom. Maisonnaire v. Keating, 2 Gallis. 338; The Hoop, 1 Rob. Adm. 201; Ricord v. Bettenham, 8 Burr. 1734 , Welles v. Gray, 10 Mass. 42; Clarkson v. Phoenix Ins. Co. 9 Johns. 1; Douglas v. Moody, 0 Mass. 548; Sansom v. Ball, 4 Dall. 460. Delay by embargo is not a subject of average. Da Costa v, Newnham, 2 T. R. 407; M'Bride v. Mar. Ins. Co. 7 Johns. 431; Penny v. N. Y. Ins. Co. 3 Caines, 166. Expenses incurred after capture are a charge on the subject benefited. Spafford v. Dodge, 14 Mass. 66; Peters v. Warren Ins. Co. 1 Story, 460; Jumel v. Marine Ins. Co. 7 Johns. 412. If a part of a cargo is sold to raise funds for the common good, this is compensated for. The Ship Packet, 3 Mason, 260; Giles v. Eagle Ins. Co. 2 Met. 144; The Mary, Sprague, 51.

1 Barker v. Baltimore, etc. R. Co, 22 Ohio St 46.

2 A ship's spare spars and some of the cargo burnt as fuel, after the supply of coal failed, for the donkey engine used in pumping out the ship in order to avert the loss of the ship and cargo, are a subject of general average. Robinson v. Price, 2 Q. B. D. 91; 2 Q. B. D. 295. Backus v. Coyne, 45 Mich. 584, decided that cargo lightered away to save a vessel and the rest of the cargo is not liable to contribute for the subsequent expenses of saving.

[ book iii.

Loss, by decree of salvage compensation, is always settled * on the principles of general average. (i) A loss by collision is not. (j)