Thus expenses incurred after ship and cargo are in safety, say at Port of refuge expenses. a port of refuge, are not generally, by English law, to be treated as G.A.; although the putting into port may have been for safety, and therefore a G.A. act. If the putting into port has been necessitated by a G.A. sacrifice, as by cutting away the ship's masts, the case is different; the port expenses, the expenses of repairing the G.A. damage, and the incidental expenses of unloading, storing and reloading the cargo are, in such a case, treated as consequences of the original sacrifice, and therefore subjects for contribution. But where the reason for putting in is to avoid some danger, such as a storm or hostile cruiser, or to effect repairs necessitated by some accidental damage to the ship, the G.A. sacrifice is considered to be at an end when the port has been reached, if the ship and cargo are then in physical safety. The subsequent expenditure in the port is said not to flow from that sacrifice, but from the necessity of completing the voyage, and is incurred in performance of the shipowner's obligation under his contract.
The practice of English average adjusters has indeed modified this strict view by treating the expense of unloading as G.A.; but it may well be doubted whether that practice can be legally supported. Moreover, expenditure in the port which is incurred in protecting the cargo as in warehousing it, is by English practice treated as a charge to be borne by the cargo for whose benefit it was incurred.
If we turn now to York-Antwerp Rule X., it will be seen that a much broader view is adopted. Whatever the reason for putting into the port of refuge, provided it was necessary for the common safety, the expenses of going in, and the consequent expenses of getting out (if she sails again with all or part of her original cargo), are allowed as G.A., Rule X. (a). Further, the cost of discharging the cargo to enable damage to the ship to be repaired, whether caused by sacrifice or by accident during the voyage, is to be allowed as G.A., "if the repairs were necessary for the safe prosecution of the voyage," Rule X. (b). And that is to be so even where such repairs are done at a port of call, as well as where done at a port of refuge. Again, when the cost of discharging is treated as G.A., so also are to be the expenses of storing the cargo on shore, and of reloading and stowing it on board, after the repairs have been done (Rule X. (c)), together with any damage or loss incidental to those operations (Rule XII.).
Further, by Rule XI. the wages of the master, officers and crew, and the cost of their maintenance, during the detention of a ship under the circumstances, or for the purpose of the repairs mentioned in Rule X., are to be allowed in G.A. It is questionable whether English law allows the wages and maintenance of the crew at a port of refuge in any case. Where the detention is to repair accidental damage it seems clear that they are not allowed. And in practice under common law, the allowance is never made; so that Rule XI. is an important concession to the shipowner. Like the changes introduced by Rule X., it is a change towards the practice in foreign countries.
It may be noted that the rules do not afford equal protection to a shipper in the comparatively infrequent case of his being put to expense by the delay at a port of refuge. Thus a shipper of cattle is not entitled to have the extra wages and provisions of his cattlemen on board, nor the extra fodder consumed by the cattle during the stay at a repairing port, made as good as G.A. under Rules XI. and X. (Anglo-Argentine etc. Agency v. Temperley Shipping Co., 1899, 2 Q.B. 403).
As to the acts which amount to G.A. sacrifices, as distinguished General average sacrifices. from expenditures, the York-Antwerp Rules do not much alter English common law. They do, however, make definite provisions upon some points on which authority was scanty or doubtful. (See Rules I.-IX.) And in Rule I., as to jettison of deck cargo, a change is made from the common law rule, for the jettison is not allowed as G.A. even though the cargo be carried on deck in accordance with an established custom of the particular trade.
Rule III. deals with damage done in extinguishing fire on board a ship. Modern decisions have cleared away the old doubts whether such damage to ship or cargo should, at law, be allowed in G.A. But recent cases in the United States have raised the question whether the allowance should be made where the fire occurs in port, and is extinguished, not by the master, but by a public authority acting in the interests of the public. The Supreme Court of the United States decided against the allowance in 1894 in a case of Ralli v. Troup (157 U.S. 386). The ship had there been scuttled to put out a fire on board, by the port authority, acting upon their own judgment, but with the assent of the master. It was held that the damage suffered by ship and cargo ought not to be made good by G.A. contributions; for the sacrifice had not been made "by some one specially charged with the control and safety of that adventure," but was the compulsory act of a public authority. On the other hand, in the English case of Papayanni v. Grampian S.S. Co. (I. Com. Ca. 448), Mathew, J., held that the scuttling of a ship at a port of refuge in Algeria, by orders of the captain of the port, was a G.A. act.
It had been done in the interest of ship and cargo, and there was no evidence of any other motive.
Rule V. deals with the question whether, and under what conditions, a voluntary stranding of the ship is a G.A. act, in a manner which will probably be held to express the law in England when the matter comes up for decision.
Rules VI. and VII. deal with the damage sustained by the ship, or her appliances, in efforts to force her off the ground when she has stranded. Such efforts involve an abnormal use which is likely to cause damage to sails and spars, or to engines and boilers; and they are treated as acts of sacrifice. The case of "The Bona," 1895 (P. 125) shows that the rules are in accord with English law upon the point. The court of appeal held that both the damage sustained by the engines while worked to get the ship off, and the coal and stores consumed, were subjects for G.A. contribution at common law.