under a charter" the steamer shall be provided with a deck-load if required at full freight, but at merchant's risk." There was a custom to carry such timber on deck: on the voyage the deck timber was properly jettisoned. Held, that F. was entitled to a general average contribution from A. (v).

Case 5.-Cotton was shipped by F., under bills of lading, excepting "jettison" and "stranding." Some of the cotton was stowed on deck; the ship stranded, and the deck cotton was properly jettisoned. An attempt to prove a custom to stow on deck failed. Held, that the cargo owner was entitled to recover the full value of the cotton from the shipowner (w).

Article 111.-Cargo damaged by Fire, directly or indirectly.

Damage to the cargo by pouring water on it, or by scuttling the ship to extinguish fire, or by burning it instead of fuel for the engines to avert the loss of ship and cargo (x), gives rise to a claim for general average contribution by the owner of the cargo destroyed or damaged (y).

Case.-F. had shipped wire on board the S. to be carried to Z. The S. arrived, and proceeded to discharge her cargo; about 100 tons remained on board, including the plaintiff's wire, when a fire broke out, which was extinguished by pouring water into the hold, whereby the wire was damaged. Held, that F. was entitled to a general average contribution from the owner of the S.

Article 112.-Sale of Cargo.

Sale of part of the cargo to furnish money for repairs to enable the ship to prosecute the voyage (z), or to release the master from arrest that he may prosecute the voyage (a), will only give rise to a claim for general average against the rest of the cargo, if such cargo can be carried on in no other way,

(v) Burton v. English (1883), 12 Q. B. D. 218.

(w) Royal Exchange Steamship Co. v. Dixon (1886), 12 App. C. 11.

(x) Semble, that if the ship was insufficiently supplied with fuel at starting, the owner of the cargo burnt will be entitled to recover its full value from the shipowner, while in consequence other owners of cargo will not be liable to contribute to general average: Robinson v. Price (1876), 2 Q. B. D. 91, 295.

(y) Whitecross Wire Co. v. Savill (1882), 8 Q. B. D. 653; in which the Court of Appeal for the first time decided this question, which they had left undecided in Stewart v. West India S. S. Co. (1873), L. R. 8 Q. B. 362. See also Achard v. Ring (1874), 31 L. T. 647. An exception "fire on board" in the bill of lading will not relieve the owner from liability for general average contribution to the owner of goods damaged by water used in extinguishing such fire: Schmidt v. Royal Mail S. S. Co. (1876), 45 L. J. Q. B. 646.

(z) Hallett v. Wigram (1850), 9 C. B. 580. (a) Dobson v. Wilson (1818), 3 Camp. 480.

and it is more beneficial to the cargo to be carried on than to stay where it is (z): any other kind of sale will only give rise to a personal claim against the shipowner (b).

Article 113.-Sacrifice of Ship or Tackle.

Sacrifice of ship or tackle necessary for the safety of the whole adventure, and not incurred in carrying out the shipowner's original contract, will give rise to a general average contribution (c), unless :

(1.) The thing sacrificed was at the time in such a condition that it would have been certainly lost, even if the rest of the adventure was saved, as when a mast is cut away, which is either certain to go overboard, or has already gone overboard and is hanging as a wreck (d).—Or :—

(2.) The sacrifice was rendered necessary by the original default of the shipowner, as in providing a ship

insufficiently equipped (e), in which case he must bear all the loss.

Case 1.-A ship sailed well equipped, having a donkey engine, and a sufficient supply of coal for all purposes other than pumping purposes; she met with heavy weather and leaked considerably; the donkey engine was used to pump, and it was only by this steam pumping that the leak was kept under; the coal ran short; and some of the spare spars and cargo were used for fuel. Held, that the sacrifice of the spars and cargo was a general average loss (f).

Case 2.-A seaworthy ship, fitted with a donkey engine and a sufficient supply of coal for ordinary purposes, sailed on a voyage. She met bad weather, and made some water, but not enough to create any risk, while the engines worked; the coal got low, and spare spars and wood were burnt with it to economise it; but some coal was obtained from a passing vessel; at the end of the voyage the engine broke down from overwork. Held, by all the Court, that the injury to the engine, and the second

(z) Hallett v. Wigram (1850), 9 C. B. 580.

(b) Hopper v. Burness (1876), 1 C. P. D. 137; in which the payment of freight on cargo thus sold is discussed; and see Article 104, on master's power of raising

money on cargo.

(c) Birkley v. Presgrave (1801), 1 East, 220; Price v. Noble (1811), 4 Taunt. 123; Wilson v. Bank of Victorii (1867), L. R. 2 Q. B. 203.

(d) Shepherd v. Kottgen (1877), 2 C. P. D. 585. See Corry v. Coulthard (1877), 2 C. P. D., at pp. 583, 584.

(e) See Robinson v. Price (1877), 2 Q. B. D. 91, at p. 95; Wilson v. Bank of Vitoria (1867), L. R. 2 Q. B. 203.

(f) Robinson v. Price, vide supra, and at p. 295.

supply of coal did not give rise to general average contribution; the Court were equally divided as to whether the burnt spars and wood were a general average loss (g).

Case 3.-A sailing ship, with auxiliary screw, was damaged by perils of the sea, so that practically she had lost all power of sailing; instead of repairing her sailing gear she proceeded with her voyage under steam alone, at a very heavy expenditure in coals. Held, that such expenditure did not give rise to a general average contribution (h).

Case 4.-A ship met with a storm which caused part of the rigging to give way; the mainmast in consequence began to lurch, and was cut away by the captain's orders; if it had not been cut away, it would have gone overboard very shortly, at great risk to the ship. Held, that the cutting away of the mast, then practically worthless, did not give rise to a claim for general average contribution (i).

Article 114.-Sacrifice of Freight.

Sacrifice of freight by the shipowner, by an act whereby the cargo is preserved, gives rise to a general average contribution against the cargo (k).

Case.-F. shipped coal on A.'s ship to be carried to Z.; on the voyage the coal took fire by spontaneous combustion; the ship and cargo were in immediate danger of total destruction by fire; but by jettison of cargo, and pouring water on it, and discharging it at Y., the ship and a large portion of the cargo were saved from destruction. It was found impossible to carry the cargo to its destination, and it was accordingly sold at Y. By reason of such measures, the ship was prevented from earning her freight by delivery at Z. Held, that the shipowner was entitled to a general average contribution from the cargo on account of the freight thus lost.

Article 115.—Extraordinary Expenditure by Shipowner.

Extraordinary expenditure voluntarily incurred, or extraordinary loss of time and labour voluntarily accepted, may also give rise to a general average contribution, provided that in each case the sacrifice is made for the common safety in a time of danger (1).

(g) Harrison v. Bank of Australasia (1872), L. R. 7 Ex. 39.

(h) Wilson v. Bank of Victoria, vide supra.

(i) Shepherd v. Kottgen (1877), 2 C. P. D. 585.

(k) Pirie v. Middle Dock Co. (1881), 44 L. T. 426. It was also held that the cargo was not entitled to general average contribution from the ship: (1) because the loss arose from vice in the cargo; (2) because there was really no loss, the cargo selling for more at Y. than it would have realised after paying freight at Z.

(1) Per Bowen, L.J., Svendsen v. Wallace (1884), 13 Q. B. D., at pp. 84, 85. See also per Lawrence, J., in Birkley v. Presgrave (1801), 1 East, 220.

Such general average contribution must cover not only the voluntary sacrifice, but also expenses directly caused by, or in consequence of, a voluntary sacrifice (1).

Thus, when the cargo has been placed in safety, it will not be liable to contribute to expenses afterwards incurred by the shipowner for the purposes of earning his freight, as in getting off a stranded vessel (m), or making arrangements for the further carrying of the cargo in his own vessel, under circumstances when the cargo might have stayed where it was, or have been carried on by other vessels, with equal advantage (n). But expenses incurred by the shipowner or his agents, as agents of the cargo owner or in the sole interests of the cargo, in preserving the cargo, must be borne by the cargo (o).

Article 116.-Expenses in Port of Refuge.

Where a ship on her voyage puts into a port of refuge to repair a general average sacrifice, such as cutting away a mast, the expenses of repairing the sacrifice, of warehousing and reloading goods necessarily unloaded for the purpose of repairing the injury, and expenses incurred for pilotage with other charges on the vessel on leaving port, are also the subject of general average (p).

Where a ship on her voyage, in consequence of damage not the subject of a general average contribution, such as springing a leak, puts into a port of refuge, and, in order to repair the ship, the cargo is necessarily landed, the expenses of reloading the cargo to enable the ship to prosecute her

(1) See note ante, p. 216.

(m) Walthew v. Mavrojani (1870), L. R. 5 Ex. 116; Job v. Langton (1856), 6 E. & B. 779. Royal Mail Co. v. Bank of Kio (1887), 19 Q. B. D. 362. (n) Schuster v. Fletcher (1878), 3 Q. B. D. 418.

(0) See per M. Smith, J., and Hannen, J., in Walthew v. Marrojani, v. s. at pp. 125, 126. M. Smith, J., suggests the case of "perishable goods landed on a desert island in a distant and unfrequented part of the world." Semble, that this is not general average; but that, the original venture being at an end, the cargo owner must bear the whole expense: see Cargo ex Argos (1872), L. R. 5 P. C. 134. Forwarding for the purpose of earning freight only must be paid for by the shipowner. Cf. Schuster v. Fletcher, v. s.

(p) Atwood v. Sellar (1880), 5 Q. B. D. 286. See also Plummer v. Wildman (1815), 3 M. & S. 482, as explained in Svendsen v. Wallace (1885), 13 Q. B. D. at p. 91; Hallett v. Wigram (1850), 9 C. B. 580.

voyage, are not the subject of a general average contribution from the cargo (q).

Semble, that in principle the expenses of unloading the cargo will or will not be the subject of general average, according as the cargo is not or is safe in the ship without removal (r).

Semble, that the expenses of warehousing the cargo are to be borne by the cargo (q).

Semble, that pilotage expenses and port dues out are not the subject of general average (s).

The expenses of unloading and reloading cargo at a port of refuge may be a general average charge on freight, to earn which they are incurred (t).

Note. The distinction in fact between Atwood v. Sellar (p), and Svendsen v. Wallace (u), is that in the first case the ship put into port to repair a general average sacrifice; in the second to repair a particular average loss, or one liable to be borne by the ship alone (v); though such putting into port is probably a general average sacrifice in itself. The difference in principle is not clear, and seems to be rather a question of the continuity of the transaction, unloading the cargo not being a necessary consequence of putting into port, which was the general average sacrifice in Svendsen v. Wallace; though it is of the voluntary sacrifice of the ship, which was the general average act in Atwood v. Sellar. But it is impossible to feel that the present position of Atwood v. Sellar is satisfactory as an authority. Da Costa v. Newnham (x) must be taken as overruled: and Moran v. Jones (y) as either overruled or limited to its own very special facts (z).

(4) Svendsen v. Wallace (1885), 10 App. C. 404; 13 Q. B. D. 69. See also Power v. Whitmore (1815), 4 M. & S. 141; Hallett v. Wigram, v. s.; Walthew v. Mavrojani (1870), L. R. 5 Ex. 116.

() In practice they are charged as general average; but see per Brett, M.R., 13 Q. B. D., at p. 76; Bowen, L.J., 13 Q. B. D., at p. 88; Lord Blackburn, 10 App. C., at p. 414.

(s) So per majority of C. A. in Svendsen v. Wallace, vide supra.

(t) Hall v. Jansen (1855), 4 E. & B. 500.

(p) (1880), 5 Q. B. D. 286.

(u) (1885), 10 App. C. 404.

(v) Jackson v. Charnock (1800), 8 T. R. 509; Hallett v. Wigram (1850), 9 C. B. 580.

(x) (1788), 2 T. R. 407. See per Brett, M.R., 13 Q. B. D. 80; Bowen, L.J., p. 90.

(y) (1857), 7 E. & B. 523. See per Brett, M.R., at p. 80; Bowen, L.J., at p. 93. See also 19 Q. B. D. 371, 377.

(2) The present practice of English average adjusters will be found in the Resolutions of July 9, 1885, set out in Appendix IV,