Must the average have been taken according to the Danish law; or, must the parties have sent to St. Petersburgh to ascertain the Russian law? [Bayley, J. The whole question must depend, at last, upon the construction of the single word "accustomed."] Undoubtedly it must, and the proper construction is, that average which the laws and usages of England adopt. [Bayley, J. Then suppose the bill of lading is assigned to a Russian; must he be bound by the English usage?] Certainly he must, because the original contract being according to the English usage; he who adopts the contract, must adopt the usage applicable to it. [Bayley, J. Suppose a Russian vessel chartered to England, the consignee to pay "average accustomed;" would that be the Russian or the English average?] The English, certainly, because the Courts here would intend that the parties contracted according to the laws of England. [Bayley, J. Then this is precisely the converse of that case, and must we not therefore intend that by "average accustomed" in this contract, the parties meant the Russian average?] That by no means follows as a necessary consequence. [Abbott, C. J. Suppose the word "accustomed" were not inserted in the bill of lading; would "average" then mean general average? I should apprehend not, for it is said in Park's Insurance, 113," another species of average, in matters of commerce, is that which we are accustomed to meet with in bills of lading, paying so much freight for the said goods, with primage and average accustomed.' In this sense it signifies a small duty, which merchants, who send goods in the ships of other men, pay to the master, over and above the freight, for his care and attention to the goods so entrusted to him." And he cites Jacob's Law Dictionary, title, Average, to the same point.] If average accustomed does not mean general average, cadit quæstio. In Power v. Whitmore it is quite clear that the ship was a Portuguese bottom, and that therefore is a direct authority for saying, that the character of the vessel cannot vary the rights of the underwriters, and that the question of general average cannot be altered by the operation of foreign laws. [Abbott, C. J. The distinction 1824. SIMONDS 0. WHITE. 1824. SIMONDS v. WHITE. I have just suggested, is to be found also in 1 Magens, 72. 2 Id. 278. and in Mr. Serjt. Marshall's treatise on Insurance, vol. ii. lib. 1. cap. 12. s. 7. p. 536. That learned writer, after having mentioned general and particular averages, says, "Beside these there are other small charges, called petty or accustomed averages. Such as pilotage, towage, light money, beaconage, anchorage, bridge toll, quarantine, river charges, signals, instructions, castle money, pier money, digging the ship out of the ice, &c. When these petty charges are incurred in the usual course of the voyage, they are not considered as a loss within the meaning of the policy, but only a necessary and ordinary expense." There is, therefore, an obvious distinction between general average and average accustomed. The one is payable by the general principle of maritime law, though the mode of contribution differs in different states, and falls generally upon the whole or gross amount of the ship, freight and cargo, and the other falls upon each particular freighter as an extra expense necessarily incurred in the navigation of the vessel.] The case was argued on a former day, in this term, when the Court took time to consider of their judgment, which was now delivered by ABBOTT, C. J.-The question in this case is, whether the plaintiffs, proprietors of certain goods which were carried on board the defendant's ship, from Gibraltar to St. Petersburgh, being compelled at St. Petersburgh to pay, and paying to the defendant in order to obtain possession of their goods, a sum of money as contribution to a general average, settled at St. Petersburgh, according to the law of Russia, can recover back so much of the money thus paid as could not be charged to them, if made on an adjustment of average according to the laws of England, the ship being a British ship, and all the parties British subjects. We are of opinion that the plaintiffs cannot recover back this money. On the part of the plaintiffs it was argued, that the case must be considered in the same way as if they were now suing for an average arising in a British port, and the authority cited was Power v. Whitmore. That case, however, cannot govern the present for two reasons; first, because it arose between different parties and on a different contract, namely, a policy of insurance; and secondly, because in the opinion of the Court the facts there stated did not shew that the average had been adjusted according to the established law and usage of the country where the adjustment took place, whereas in the case in which this question arises, it is admitted that the average was adjusted according to the law of the country in which it was paid. The principle of general average, namely, that all whose property is saved at the sacrifice of the property of another, shall contribute to make good his loss, is very ancient, and is in universal acceptance among commercial nations. The obligation to contribute depends, not so much on the force of any particular custom as upon the general rule of maritime law. That obligation may indeed be limited, regulated, or even excluded, by the special terms of the contract, or by the consent of the contracting parties: but there is nothing of that kind in any part of the contract between the parties in this case. There are, however, many variations in the laws and usages in different nations, as to the losses which are considered to fall within the principle of general contribution; but on one point they all agree, namely, that the place in which the average shall be adjusted shall be the place of the ship's destination, or where she carries her cargo for delivery. I believe, also, they all agree on another point, namely, that the master is not compellable to part with the possession of the goods until the sum contributable in respect of them, either shall have been paid, or the payment thereof secured to his satisfaction. This appears by the case now before us, to be the law of Russia. This principle is laid down. even by the Civil Law, and is noticed in the Digest, lib. 14. tit. 2; it is expressly stated in the Consolato del Mare, cap. 98; and it is alluded to by Valin, in his commentary on the 1824. SIMONDS v. WHITE. 1824. SIMONDS v. WHITE. French Ordinance, Article 21; and is also recognised in several other foreign writers. If then the average is to be adjusted at the place of destination, by what law shall it be adjusted? One may suppose the case of a British ship carrying to a foreign port the goods of British subjects only, and delivering them to British subjects there: but such a case will rarely occur. Agreeing that sometimes it must, still the consignee of the goods will usually be a foreigner, and even if he be not a person of that description, the average must be taken on the usual terms; and where there are several shippers, even if all are British subjects, it will, in case of jettison, be for the interest of all those whose goods are sacrificed, that the master shall exercise his power of adjusting the average, in order that the expense and inconvenience of actions and suits of law may be avoided. But this cannot be done without causing the average to be adjusted at the place of destination. In the present case, the original loss might fall upon the ship. The master may exercise that power for his own safety, which in other cases he ought to exercise as a matter of duty for the safety of others. Now, if the goods belong entirely to persons of the nation where the ship has arrived, they cannot complain of an adjustment made under the authority of their own law. In such a case, it can hardly be contended as between them and the master, or as between some of them and the others of them, that the adjustment ought to be regulated by any other law than their own. Then suppose (which will be the most usual case) that the goods belong to persons of different nations, the adjustment must be made according either to some one law regulating the matter, or it must be made in parts, according to so many different laws as there happen to be persons of different nations concerned. The latter mode would be attended with great perplexity, irregularity and confusion, even if it could be found practicable, which in many cases it could not. In this case, therefore, the laws of the country must be adhered to, and this will not impugn any known doctrine or rule of 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; and by assenting to that, he must be understood as assenting to the adjustment at the proper and usual place; it is, as it seems to us, an obvious consequence that he must be understood to assent to the adjustment according to the law and usage of the place at which the adjustment is made. We are of opinion that the adjustment is to be understood as depending on the general rules of the place, and not on the special and particular terms of the contract. It is of infinite importance to maritime commerce, that its regulations. should be as select and as few in number as general justice will permit. The wisest and most equitable may, in a particular case, be productive of inconvenience, but such occasional and partial inconveniences are a much less evil than that confusion and uncertainty which never fail to accompany a multiplicity of local regulations. For these reasons we are of opinion that the plaintiffs are not entitled to recover, and therefore the Postea must be delivered to the defendant. 1824. SIMONDS บ. WHITE. Postea to the defendant. Monday, DOE, on the Demise of MARY GIBSON, JOHN Gell, JOHN WELBURNE and HANNAH his Wife, and JOHN. IDLE and SUSANNAH his Wife, v. SARAH GELL. EJECTMENT for a piece of land at Almondbury, in the Devise "to county of York. At the trial, before Bayley, J. at the last M. G. all the my daughter Yorkshire Assizes, the case was this:-The lessors of the houses, outhouses, gar den and other property, which I hold under, &c. for 999 years. And I also give one half part of my books to my daughter M. aforesaid, the other half to my widow S. G., to be equally divided by T. S. If my daughter M. should happen to die unmarried, it is my will then that her part aforesaid shall be equally divided amongst all my brothers and sisters, share and share alike by lot. All the rest and remainder of my property, I give and bequeath to S. G. my widow." Testator's daughter died unmarried, under age and intestate. The leasehold property consisted of four tenements, with the appurtenances, and one garden. Testator had one brother and three sisters. Query, whether the gift over of the daughter's "part aforesaid," comprehended the whole of the property given to the daughter, or only the books? Held, that it included both. |