propeller, as she lay at the dock in Detroit, impeded the efforts of the city authorities to extinguish the fire; and, as "the general safety" required the extinguishment of the fire, the goods were destroyed to promote that "safety." No one will affirm this.

The water was ejected by the steamengines, without any reference to its effect upon anything other than the flames; and, in point of fact, the fire would have been subdued equally well, whether the libellant's goods were preserved or lost; so that his loss was not "voluntarily incurred, with the purpose of preserving the vessel and her lading." There was no "purpose" in the loss; and there was no "preservation" by the loss.

Under the operation of the rule as known to the Roman law, the best defined case of "jettison" is that contained in the Acts of the Apostles, chap. 27.

go

Saint Paul, accused before the vernor Festus, appealed to Cæsar. He was embarked with several other prisoners, to be conducted to Rome. During the voyage, the vessel suffered from a storm-"a tempestuous wind."

"And when the ship was caught, and could not bear up into the wind, we let her drive."

"And being exceedingly tossed, with a tempest, the next day, they lightened the ship."

"And the third day we cast out, with our own hands, the tackling of the ship.

"And when neither sun nor stars in many days appeared, and no small tempest lay on us, all hope that we should be saved was then taken away."

"But when the fourteenth night was come, as we were driven up and down in Adria, about midnight, the shipmen deemed that they drew near to some country; and sounded and found it twenty fathoms : and when they

had gone a little further, they sounded again, and found it fifteen fathoms.

"Then fearing lest they should have fallen upon rocks, they cast four anchors out of the stern, and wished for the day.

"And when they had eaten enough, they lightened the ship, and cast out the wheat into the sea."

"And when they had taken up the anchors, they committed themselves unto the sea, and loosed the rudder-bands, and hoisted up the mainsail to the wind, and made towards shore."

The fine classical mind of the gentleman (Mr. Rae) on the other side, has brought to my aid another example of that element in a "general average loss," to which I adhere with something of pertinacity, to wit:

"There must be a voluntary jettison, jactus, or casting away of some portion of the joint concern, for the purpose of avoiding an imminent peril," which threatens the adventure: 10 Howard 303

The example is found in the lines. of Juvenal (12 Sat. 37-8), who puts into the mouth of his friend, when his ship was on the point of foundering at sea, these significant words:

"Fundite quæ mea sunt dicebat cuncta Catullus,

"Præcipitare volens etiam pulcherrima."

Throw overboard, said Catullus, all my goods: I am willing to cast away even the most beautiful.

"It results from these texts," says Emerigon, chap. 12, section 39, "that expense incurred and damage suffered are not general average except in the case where they have been incurred voluntarily for the common safety."

Where masts and sails are carried away, in attempting to escape a lee shore, it is "particular average:" Covington v. Roberts, 2 Bos. & Pull., N. R. 378.

"The reason is, that the loss, though

resulting from the measure adopted, was not its foreseen and intended consequence, at the time it was resorted to; what the captain intended was, not to carry away his sails and spars, but only to crowd sail and escape. He in fact hazarded his sails and spars, but did not sacrifice them:" Boulay-Paty on Emerigon, vol. 1, 620.

If this reasoning of Boulay-Paty be authoritative in maritime courts, it must be decisive of the case at bar.

The goods of libellant were not sacrificed for the safety of the adventure. At the outside, they were only hazarded by the injection of water into the hold; and their loss or damage had no influence on the fire, one way or another.

The water was poured in to rescue the vessel from the fire-not with the purpose of wetting the libellant's goods.

The "Ordonanza de Bilbao" directs that "when a fire breaks out on board of a ship lying in the roads, or in port, and the adjoining vessel is sunk to save others, such damage is to be made good by the other ships and cargoes:" Jacobson's Sea Laws 350.

This is in perfect consistency with the prominent features of the Rhodian law, as construed in 10 Howard 303. 1. The common danger.

themselves: it was of an agent to act upon the destroying element and subdue it. It might, and it might not, injure the goods of the libellant. Much would depend upon their character and condition, in this respect.

I have an authority in point on this subject:

"It is not enough," says Chief Justice Gibson, "that there be a deliberate intent to do an act which may or may not lead to a loss; there must be a deliberate purpose to sacrifice the thing at all events, or at the very least, to put it in a situation in which the danger of eventual destruction would be increased:" Walker v. U. S. Ins. Co., 11 S. & R. 61.

In commenting upon this case, Mr. Justice Grier says: "When it is said of the jactus, that it is sacrificed for the benefit of the whole, it means no more than that it is selected to undergo the peril in place of the whole, and for the benefit of the whole. It is made the' scapegoat' for the remainder of the joint property exposed to common destruction:" 10 Howard 305.

3. The safety of the other ships. But, it is insisted, there was a deliberate purpose to throw the water into the hold of the vessel, and there was a probability that some portion of the merchandise would, thereby, receive damage; and, as the application of the water put out the fire, we have the three elements necessary to "general average contribution:" the common peril, the voluntary "jactus," and the requisite safety of the adventure.

My objection to this reasoning is, that it is specious rather than solid.

The "jactus" was not of the goods

in place of the vessel and the residue of her cargo? An answer in the affirmative would be revolting to any sound understanding.

The learned Dr. Browne, in his treatise upon Civil and Admiralty Law, vol. 2, p. 199, says: "The great principle of average, or that which determines whether parties shall contribute or not, is the loss having been suffered, or the act done voluntarily, for the benefit of the property of the contribut

for the repairs of the ship. Upon this ground it has been determined, with some subtilty, that when the cable was cut to save the ship, there was no contribution for the anchor lost, the will not having extended thereto."

A beautiful example of an act in the nature of "a jettison," and giving an intelligible view of the elements that are required to be in combination to constitute a "general average loss," is presented by Emerigon:

"A vessel coming from Port-auPrince to Marseilles, in February, 1782, at nine o'clock in the morning, descried two frigates on her quarter, bearing down for her, with the wind free, at two and a-half leagues distance. About mid-day another sail, that was taken for an enemy, appeared in the opposite direction; and shortly after a third was made out in chase.

"In the lapse of some hours, the captain was losing distance. At five o'clock in the evening, he prepared his ship's launch, placed in it a mast with a foresail, and attached to the top of the mast a lantern.

"As soon as it was quite dark, the lantern was lighted, and the boat put in the water, to go where the wind might carry her.

"The vessel then changed her course, sailing up the wind, close hauled. On the following morning there was no enemy to be seen, and she arrived safely at Marseilles.

"It is not to be doubted that the boat, thus sacrificed for the common safety, entered into general average:" Emerigon on Ins., by Meredith, 480.

My next proposition is, that, although damage resulting to the merchandise from the simple introduction of water, through the hatchway, to extinguish fire, will not and cannot, on principle, be declared a general average loss," yet, if part of the ship be intentionally cut away and damaged,

in order to come at or extinguish an accidental fire, which threatens the destruction both of ship and cargo, there can be no doubt that such damage gives a claim to contribution :" 2 Arnould on Ins. 898-900.

If, by reason of cutting away the mast of a ship, or making a hole in her deck or sides or bottom, with a view to the common safety, water be introduced which damages the merchandise, this incidental damage will take the character of the "jettison," and acquire a claim to contribution.

"All the damage incidentally done to the ship or cargo, "in making a jettison," says Mr. Phillips, "constitutes a part of the amount to be made good in general average:" 2 Phillips on Ins., section 1286.

And so Lord Tenterden says: "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 also must be included in the general contribution:" Abbott on Shipping, 577, chap. 10, marginal page 476.

It was under this rule that the case of Maggrath v. Church, 1 N. Y. Term Rep. 196, was decided:

The vessel was on her beam ends, in which situation it became necessary for her preservation, and that of the cargo and crew, to cut away the mainmast.

In doing this, it splintered off, at and below" the partners," tearing away the piece of cloth called "the coat," which is nailed to the deck and mast for the purpose of keeping the water from running into the hold. In consequence of this, as the sea made a free passage over the vessel, a vast quantity of water continued to rush into the hold, till the stump of the mast was cut off and a new coat nailed over it. A quantity of corn, that formed a part of the cargo, was injured

by the water thus let into the hold of the vessel. It was deemed to be a "general average loss." The reason is given in the language of Mr. Justice Kent:

"We are to consider the mast as sacrificed for the general safety of the ship and cargo, and that in the act of sacrificing the mast, or as a necessary consequence of it, the corn was damaged, and this damage must be included in a general contribution."

The counsel for libellant cite for our consideration the case of Nimicks et al. v. Holmes et al., 25 Penn. State Rep. 366, as a case 66 on all fours" with the one under consideration.

I was impressed with the remark of his Honour Judge Drummond, made during the trial, that this was "a strong case."

It is strong enough, unquestionably, to break down all the learned distinctions that have separated general from particular average, for centuries, unless it can be brought within the spirit of the decision in Maggrath v. Church.

If we look at the facts in the case, we can be reconciled to the decision. Not so, if we look at the opinion as pronounced by the court; or, rather, we shall be forced to the conclusion that an unsatisfactory opinion has been given in a case rightly decided upon the evidence.

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The facts were, that an accidental fire broke out in the hold of the steamer Susquehanna," while she was lying at the wharf in Cincinnati, on the 4th day of May, 1852. All ordinary means were employed to extinguish the fire, but without success. The officers, believing that there was no other possible way of saving the boat and cargo, determined, after consultation among themselves, and with various other persons, upon the expedient of scuttling her.

They accordingly ran her out into the river, two miles from the wharf,

and there sunk her on a bar. A portion of the deck was torn up, and water was introduced from above, and by this means the fire was subdued and extinguished. The cargo was greatly injured by the water.

It was very justly determined by the Supreme Court in Pennsylvania, to be a case calling for contribution under the law of average. But the learned justice "overleaped the rule," when he said, "it makes no difference how the water is applied; by the aid of fire-engines on the land, or in the form of steam, or by scuttling the vessel."

The true ground on which to place the decision was, that the deck of the vessel was broken up, in order to introduce the water. A jettison was in this way made, and once beginning with the contribution, you shall bring into the account all the damages sustained by the adventurers, whether attendant upon the act of jettison, or incidental thereto, if incurred in the use of means to save the adventure.

I notice, in passing, that I am more liberal with this case of Nimicks v. Holmes than Professor Parsons, of Cambridge. He declares it to have been a case of "particular average" only; "a case of partial loss, for which the insurers against fire would be liable:" vol. 1 Parsons on Maritime Law, p. 304, note 3.

I submit to the court that I am fully borne out in my criticisms upon the case in 25 Penn. State Rep. by the decision of the Superior Court in the City of New York, in Lee v. Grinnell, 5 Duer's Rep. 400.

On the night of the 25th December, 1853, the ship "Great Republic" lying at her dock in the city of New York, with nearly a full cargo on board, destined for Liverpool, took fire in her sails and rigging, from sparks blown upon them from a fire then raging in Front street. The forestay and the fore-topmast-stay were cut to let down

the spars, which were on fire, and the fore-topmast, in falling, broke short off and fell down, endways, through three decks, and set fire to the cargo in the lower between-decks. The mainmast was next cut away, and in falling, carried with it the mizen and spanker masts, by the deck. After great exertions to put out the fire, by the firemen of the city, the ship was scuttled in three separate places, and soon sunk about ten feet and rested on the bottom. In the lower hold was a large quantity of corn, which was flooded by the scuttling. The grain, it was found, had swelled so as to break the knees and beams of the lower deck, and otherwise badly strain and injure the ship.

The court decided that such parts of the ship and cargo as were destroyed by the scuttling should be accounted for by general average contribution; the direct damage done to the grain in the lower hold, and the resulting damage to the ship's knees and timbers. "No damage," says Mr. Justice Hoffman, and please to mark his language (page 429), "No damage to the articles of the cargo which were between decks, and on fire, arising from the water thrown in, is to be contributed for. The fire is still to be considered as an accidental fire."

That is to say, so long as a fire is operated upon by men using waterbuckets and fire engines for its extinguishment, in the usual way, the injury caused by the fire and the water together, can only be treated as the result of accident, and no contribution can be claimed. "It is an accidental fire." But so soon as you break a hole in the deck or in the bottom of the ship, to let in water upon the fire, the whole character of the damage is changed. A sacrifice is made, a part for the whole, and the whole loss must be brought into contribution.

The case of Nelson v. Belmont is found in 5 Duer's Rep. 310, and the

opinion is given by the same judge to whom I have last alluded.

It is evidently not so "well considered" a case as Lee v. Grinnell, and may seem, in some slight particulars, to vary from it.

They seem to have been both determined at the February term, 1856, but the later decision of the two is that of Lee v. Grinnell, which also contains the able and instructive remarks of Mr. Justice Duer on the nature of a "general average loss."

I do not attach much importance to the isolated saying of Mr. Benecke, that "the damages done by the water poured down the hatches of a vessel to extinguish a fire, is," as he conceives, "of the nature of a general average."

It may approach very near to general average, and, under certain circumstances, come, as has been shown, within the rule; but I have learned enough of the law to know that "every tub must stand upon its own bottom."

The case of Nelson v. Belmont was

subsequently taken up to the Court of Appeals, and there affirmed; but, though the expenses incurred in putting out the fire were included in the general average loss, this, being an incidental point, was not argued or referred to, and was merely involved in the decision. The proposition argued and determined was, that a separation of goods from the rest of the cargo, and from the whole adventure, destroyed the community of interest hitherto existing between the co-adventurers, and consequently took away the right of contribution for general average from the goods separated: 7 Smith (N. Y. 1860) 36. In McAndrews v. Thatcher the abandonment of the ship by the master was held to release the goods separated prior to that event from liability for general average loss: 3 Wall. (U. S. Sup. Ct. 1865) 348.