cargo, be saved by means of the sacrifice, nothing can be more reasonable than that the property saved should bear its proportion of the loss. The doctrine of general average is one of those rules of the marine law which is built upon the plainest principles of justice; and it has, accordingly, recommended itself to the notice and adoption of all the commercial nations of the world. The title in the Pandects, De lege Rhodia de Jactu, has been the basis of the ordinances of modern Europe, on the subject of general average; and the doctrine of jettison was transplanted into the Roman law from the institutes of the ancient Rhodians. A jettison is only permitted in cases of extreme necessity; and the foreign ordinances require, that the officers of the ship, and the supercargo, if on board, should, if practicable, be previously consulted; and if the master, in a case of false alarm, makes a jettison, there is no contribution. The master is responsible for the due exercise of his own judgment in the case of a jettison. He has the authority, and if he shows a necessity of the sacrifice, he will be excused, whether he follows the advice of the crew or not. The crew of a vessel are not authorized to make a jettison of any part of the cargo, even in a case of distress, without the order of the master. This is the general rule, without reference to extreme cases.c regular jettison, says Emerigon, is that which takes place with order, and without confusion, and is founded on previous deliberation. Consultation is not indispensable previous to the sacrifice. A case of imminent danger will not permit it. But it must appear that the act occasioning the loss was the effect of judgment and

A

Sir Wm. Scott, in The Gratitudine, 3 Rob. Adm. R. 240.

b Laws of Oleron, art. 8, of Wisbuy, art. 20, 21. 38. Consulat de la Mer, tome ii. c. 99. Code de Commerce, art. 410.

The Nimrod, 1 Ware's Rep. 14, 15.

will; and there may be a choice of perils when there
is no possibility of safety. There must be a certain
loss voluntarily incurred for the common benefit,
*234 and it is not necessary that the vessel should be
exposed to greater danger than she otherwise
would have been. To avoid an absolute shipwreck, it
may sometimes be necessary to run the vessel ashore
in a place which appears to be the least dangerous,
and that will form a case of general average." The ir-
regular jettison is valid, for it takes place in the instant
of a danger which is imminent and appalling, and when
all formality and deliberation would be out of season,
or impossible. All acts are precipitate, and commanded
by that sense of self-preservation when life is in jeo-
pardy, which is irresistible, and sways every consider-
ation. Such a jettison is a species of shipwreck, and
it is called semi-naufragium. The captain must first
begin the jettison with things the least necessary, the
most weighty, and of least value, and nothing but
the greatest extremity would excuse the master who
should commence the jettison with money, and other
precious parts of the cargo.c

* Sims v. Gurney and Smith, 4 Binney, 513. 1 Emerigon, 408. Targa says, that during the sixty years he was a magistrate in the Consulat of the Sea, at Genoa, he met with only four or five cases of a regular jettison, and they were suspicious by reason of their very formalities.

b Consulat de la Mer, c. 284. Targa, c. 58. Casaregis, Disc. 45. n. 28. • Code de Commerce, art. 411. Emerigon, tome i. 609, has beautifully illustrated, from Juvenal, the growth and progress of an irregular jettison, and that imminent danger and absorbing terror which justify it. At first the skill of the pilot fails:

Nullam prudentia cani

Rectoris conferret opem.

Catullus becomes restless with terror as the danger presses, and at last he cries:

Before contribution takes place, it must appear that the goods sacrificed were the price of safety to the rest; and if *the ship be lost, notwithstanding the *235 jettison, there will be no ground for contribution.a All damage arising immediately from jettison, or other act of necessity, is to be a matter of general average, and, therefore, if, in cutting away a mast, the cargo, by that means, be injured, or if, in throwing over any part of the cargo, other parts of the cargo be injured, the damage goes into general average, because it is to be considered as part of the price of safety to the residue of the property. So, if a ship be injured by a peril of the sea, and be obliged to go into port to refit, the wages and provisions of the crew, during the detention, constitute the subject of general average, according to the decisions in New-York and Massachusetts. Those decisions are supported by the rule as laid down in Beawes, and they are in coincidence with the law and practice of Holland and France. Lord Tenterden, in his treatise.

a

Pothier, tit. Avaries, n. 113.

No contribution, if at the time of sacrificing the cargo there was no possibility of saving it. Crockett v. Dodge, 3 Fairfield, 190. No loss or expense is considered and applied as general average, unless it was intended to save the remaining property, and unless it accomplished the object. Williams v. Suffolk Ins. Company, U. S. C. C. Mass. May, 1839, 3 Sumner's R. 510.

Maggrath v. Church, 1 Caines' Rep. 196.

• Walden v. Le Roy, 2 Caines' Rep. 263. Padelford v. Boardman, 4 Mass. Rep. 548. Potter v. Ocean Ins. Co. 3 Sumner, 27. In Pennsylvania, it is decided that the wages and provisions of the crew during an emburgo, go into a general average, and, as the Ch. J. observed, the criterion of general average is, when the expenses were "necessarily and unavoidably incurred for the general safety of the ship and cargo." Ins. Company of N. America v. Jones & Clark, 2 Binney, 547. The case of a vessel forced into port by sea perils and damage to refit, would doubtless be considered as equally within the principle. See infra, p. 302.

4 Lex Mercatoria, vol. i. 161.

e

624.

Ricard, négoce d'Amsterdam, 280. Emerigon, Traité des Ass. tome i.

on shipping, observed, that the English law books furnished no decision on this point, and he thought it susceptible of a reasonable doubt, though his opinion was evidently against the justice and policy of the charge for contribution. Since he wrote, the question has been decided in the K. B. according to his opinion, and in a case in which he sustained and enforced a contrary opinion in his character of counsel. The result of the decisions in Plummer v. Wildman, and Power v. Whitmore, is, that where the general safety requires a ship to go into port to refit, by reason of some peril, the wages and provisions of the *236 crew during the detention are not the subject

of general average; but the other necessary expenses of going into port, and of preparing for the refitting the ship, by unloading, warehousing and reloading the cargo, are general average.

The costs of

a Abbott on Shipping, 5th Am. edit. 1846, p. 592.

b Power v. Whitmore, 4 Maule & Selw. 141.

3 Maule & Selw. 482. 4 ibid. 141. S. P. In De Vaux v. Salvador, 4 Adol. & Ellis, 420, Lord Denman, in that case, relied upon the nisi prius case of Fletcher v. Pole, before Lord Mansfield, in 1769, and cited by Park on Ins. vol. i. 70; and also in Robertson v. Ewer, 1 Term, 131. He seemed to admit that the expenses of wages and provisions, in such cases, might go into contribution as between owners and freighters, though not as against underwriters. In Charleston, in South Carolina, the average of provisions and wages of the crew, while the vessel is detained in a port of necessity, is not charged to the underwriters. The English rule is the one that prevails. Union Bank v. Union Ins. Co., Dudley's Law and Eq. R. 171.

d Beuwes, L. M. 161. Abbott on Shipping, 280. 1st edit. Bedford Com. Ins. Company v. Parker, 2 Pick. 8, and Thornton v. U. S. Ins. Company, 3 Fairfield, 150, support the position, that the necessary expenses of unloading and reloading the cargo, when the vessel is forced into a port to refit, are to be brought into general average, for all persons concerned are interested in the measures requisite to complete the voyage. But again, the labour and board of the master and crew, in relieving a vessel cast ashore in a storm, are not the subject of general average, or chargeable on the insurer; though the extra hire and loss on the sale of outfits are general average. Giles v. Eagle Ins. Co., 2 Metcalf's R. 140. The case of Walden v. Le Roy, 2

the repairs, so far as they accrue to the ship alone as a benefit, and would have been necessary in that port, on account of the ship alone, are not average. Yet, if the expense of the repairs would not have been incurred but for the benefit of the cargo, and might have been deferred with safety to the ship, to a less costly port, such extra expense is general average.

It has likewise been held, that the wages and provisions of the crew, during a capture and detention for adjudication, are a proper subject for general average;a while in the case of a vessel detained by an embargo, they are not so subject, and are chargeable exclusively upon the freight. The French ordinance of the marine, Pothier and Ricard, all agree, that wages and provisions are not a subject for contribution in the case of an embargo; and yet, it has been held, on the other hand, by the Court of Errors in Pennsylvania, in 1807, that *they were, in such case, the subject of general *237 average. In respect to the wages and provisions of the crew, while the vessel was detained at an intermediate port, by fear of enemies, and waiting for con

Caines' Rep. 263, assumes, that those expenses, in such a case, go into general average; and there seems to be no doubt from the cases, that where the wages and provisions of the crew are to be borne by general contribution, those other expenses are equally a part of it. The survey to ascertain the necessity and extent of repairs at a foreign port, may be ordered by a court of admiralty, or by the American consul, or by persons voluntarily appointed by the master, and if the damages were the result of a peril insured, the underwriters bear the expense of the survey. Potter v. Ocean Ins. Co., 3 Sumner, 27. 42. The whole subject is discussed and the authorities collected in Abbott on Shipping, 5th Am. edit. Boston, 1846, pp. 595–602. a Ricard, négoce d'Amsterdam, 279. Boulay Paty, tome iv. 444. Leavenworth v. Delafield, 1 Caines' Rep. 574. Kingston v. Girard, 4 Dallas' Rep. 274.

Penny v. New-York Insurance

+ Robertson v. Ewer, 1 Term Rep. 127. Company, 3 Caines' Rep. 155. M'Bride v. Marine Insurance Company, 7

Johns. Rep. 431. Harrod v. Lewis, 3 Martin's Louis. Rep. 311.

Insurance Company of North America v. Jones, 2 Binney's Rep. 547.