Article 117.-Master's Duty to collect General Average

Contribution,

Where a general average loss has occurred on a voyage, the shipowner or master has the right to retain the cargo until he is paid or tendered the amount due on it for general average (a): he is under a duty to persons entitled to a general average contribution from the cargo so to do, and is liable to an action if he omits to do so (b).

It is also the duty of the master to furnish to all cargo owners all the accounts and particulars necessary for adjusting general average (c). If he omits to do so, the cargo owner who fails to tender a sufficient sum in consequence of such omission, is not liable for such failure (d).

If he does furnish such particulars, the cargo owner must either pay the sum demanded, or tender the right sum, at his peril (d).

If, as in practice, the master demands a particular security (e) for the payment by the cargo owner of the amount found on adjustment to be due, such security must be a reasonable one (ƒ).

Case.-A., shipowners, had a lien on cargo in their ship, for general average. They required the cargo owner to make a deposit of 10 per cent. on the value of the goods in the name of A., or B., his average adjuster, or A. and B.; and to execute a bond, the "Liverpool Bond," providing that

(a) See per Lord Esher and Lindley, L.J., in Huth v. Lamport (1886), 16 Q. B. D. 735; Simmonds v. White (1824), 2 B. & C. 805, at p. 811.

(b) Strang v. Scott (1889), 14 App. C., at p. 606; Crooks v. Allan (1879), 5 Q. B. D. 38; Hallett v. Bousfield (1811), 18 Ves. 187, is now of doubtful authority, see 14 App. C. 606. Some bills of lading exempt the master from this duty, e.g., "shipowner not to be bound to exercise his lien on cargo for general average contribution." The master is under no duty to persons entitled to salvage from the cargo to detain it, until he obtains a bond from the cargo owners to pay such salvage: The Raisby (1885), 10 P. D. 114, and Article 121. (c) Huth v. Lamport, vide supra, and see The Norway (1864), B. & L., at p. 397. (d) See per Lord Esher and Lindley, L.J., in Huth v. Lamport (1886), 16 Q. B. D. 735; Simmonds v. White (1824), 2 B. & C. 811.

(e) Semble, that if the master obtains from the cargo owners the form of security usual at the port of discharge he will be protected: Simmonds v. White (1824), 2 B. & C. 805; The Raisby (1885), 10 P. D. 114.

(f) Huth v. Lamport (1886), 16 Q. B. D. 735. The clause in some bills of lading, "In case of average, a deposit sufficient to cover the estimated contribution to be paid at port of discharge if so required by the master," seems both unnecessary and unworkable. The master has his lien without it, and the method of "estimating," which is the difficulty, is not provided for.

220

GENERAL AVERAGE CONTRIBUTION.

such deposit should be a security for general average, and that the persons in whose name it stood might pay out from time to time such sums as they thought right to A. or his master on account of their disbursements. "All questions of general average to be adjusted by B., with appeal to arbitrators whose decision was final." Held, that such a requirement was unreasonable, and its continued demand released the cargo owner from the necessity of tendering (f).

Article 118.-Who can sue for General Average

Contribution.

I. The shipowner, or the charterer, if the charter amounts to a demise they have also a possessory lien on the cargo for the general average contribution due from it (g).

II. The cargo owner, who can sue another cargo owner (h), the shipowner, or the person entitled to the freight, for general average contribution due from them. He has not after adjustment a maritime lien on the ship for the contribution due from it, nor will such a personal debt support a bottomry bond on the ship given in a subsequent voyage (i). III. The person entitled to the freight, for contributions due from the other interests in the adventure (j).

Article 119.-Who is liable for General Average
Contribution.

There are liable for general average contributions:I. The shipowner, for those due from the ship (unless she is under a charter amounting to a demise, in which case the charterer is liable), and from the chartered freight.

II. The charterer for those due from the ship, if the charter amounts to a demise, and from freights payable to him.

III. The cargo owner.

(f) See ante, p. 219.

(y) See Articles 117, 149.

(h) Strang v. Scott (1889), 14 App. C. 601; Dobson v. Wilson (1813), 3 Camp.

479.

(i) The North Star (1860), Lush. 45: quære, whether a lien for general average by foreign law will support a bond.

(j) Pirie v. Middle. Duck Co. (1881), 44 L. T. 426.

IV. A consignee of cargo who has taken delivery of the goods under a bill of lading is not liable for general average,

unless

(a.) He is the owner of the goods;

or (b.) The bill of lading under which he takes the goods stipulates that he shall pay average;

or (c.) He has notice from the master of his lien for average, and after that takes the goods (k).

Article 120.-General Average Contribution, how adjusted.

In the absence of special agreement (7), the amount to be contributed in general average is adjusted when the voyage is terminated by the delivery of the goods or otherwise and according to the law of that place (m). The fact that the voyage has been temporarily suspended, while the ship is repaired at a port of refuge, does not justify an average adjustment at such port (n).

Article 121.-Salvage.

If cargo is saved from loss or damage on a voyage by persons other than those who have undertaken to carry it (0), the salvors are entitled to remuneration for their services, known as salvage.

No salvage is payable by cargo owners unless some cargo is saved, and it is payable proportionately to the cargo

(k) Scaife v. Tobin (1832), 3 B. & Ad. 523. He would not be liable if he merely had notice that the goods were liable for general average, but not that the master claimed a lien (same case).

(1) Eg. "Average, if any, to be adjusted according to British custom," which makes the custom of English average adjusters, though contrary to the law, part of the contract, Stewart v. West India Co. (1873), L. R. 8 Q. B. 362. A very usual clause is, "Average to be adjusted according to York-Antwerp rules," referring to a code of rules settled and adopted by a series of International conferences, including one at York in 1864, one at Antwerp in 1877, and one at Liverpool in 1890. See Appendix IV.

(m) Simmonds v. White (1824), 2 B. & C. 805; Dalgleish v. Davidson (1824),

5 D. & R. 6.

(n) Hill v. Wilson (1879), 4 C. P. D. 329; see also Fletcher v. Alexander (1868), L. R. 3 C. P. 375; Mavro v. Ocean Insurance Co. (1875), L. R. 10 C. P. 41. (0) This includes a Queen's ship, if the services rendered are beyond the scope of her public duty. The Cargo ex Ulysses (1888), 13 P. D. 205.

saved (p). Ship and cargo must each pay its own share of salvage; neither can be made liable for salvage due from the other without an express agreement to pay it (q), or unless the shipowner is liable to indemnify the cargo owner for such payment, which was caused by his breach of contract (r); but either or both, if saved, may be liable to pay salvage for life saved, though, if life is saved but not cargo or ship, the cargo owner or shipowner will not be liable to pay life salvage (s).

The authority of the master to bind the cargo to pay salvage is derived from necessity and benefit to the cargo (†). It is no part of the duty of the master of the salved ship to protect the salvors by obtaining a bond from the cargo owners for their proportion of any salvage that may be due before allowing the cargo owners to take away their goods (u).

Where, however, the shipowners have paid, or made themselves personally liable to pay, a sum of money for the preservation of ship and cargo, if such payment is justifiable, and did not result from the fault of the shipowners (w), they will have a lien on the cargo for the sum that they have justifiably paid (x); though the fact that they have bona fide and reasonably paid a certain sum, is not conclusive that that sum is the basis on which the liability of the cargo owners is to be reckoned (y).

(p) The Longford (1881), 6 P. D. 60.

The Pyrennee (1863), B. & L. 189; The Raishy (1885), 10 P. D. 114; a case of an agreement to salve, and not an agreement to pay a particular sum for salvage. For instances of such express agreement, see The Prinz Heinrich (1888), 13 P. D. 31; The Cambrian (1887), 57 L. T. 205.

(r) Scaramanga v. Martin (1886), 53 L. T. 810; Duncan v. Dundee Shipping Co. (1878), 5 Sc. Sess. C., 4th Ser., p. 742.

(s) The Renpor (1883), 8 P. D. 115; Cargo er Sarpedon (1877), 3 P. D. 28; The Fusilier (1865), 3 Moore P. C., N.S. 51. In The Annie (1886), 12 P. D. 50, the ship was raised, but sold for less than the cost of raising her, and it was held that there was nothing to which a claim for life salvage could attach.

(t) The Renpor (1883), 8 P. D., at p. 118.

(u) The Raisby (1885), 10 P. D. 114.

(w) The Ettrick (1881), L. R. 6 P. D. 127.

(x) Briggs v. Merchant Traders' Co. (1849), 13 Q. B. 167; Cox v. May (1815),

4 M. & S. 152.

(y) Anderson, Tritton & Co. v. Ocean S. S. Co. (1881), 10 App. C. 107. For the conditions rendering a salvage agreement void, see The Rialto (1891), P. 175; The Mark Lane (1890), 15 P. D. 135.

The charterer of a vessel which renders salvage services is not entitled, in the absence of special clauses, to salvage for those services (z) unless the charter amounts to a demise, so that at the time of the salvage he is in possession of the vessel (a).

Case. The R., owned by A., rendered salvage services to the S., owned by K., and chartered to A., the charter not amounting to a demise. Held, that A. was entitled to salvage from the S. (z).

Article 122.-Collision,

The cargo laden on board a vessel at the time of collision cannot be sued in the Admiralty Court for the damage (b) even though it belongs to the owner of the ship, or to the charterer under a charter amounting to a demise (c).

The owner of cargo on board a ship sued for collision can only be compelled to pay into court the amount of freight due from him to the shipowner (d).

The owner of cargo lost by a collision may, if both ships are at fault, recover half his loss against each ship (e); if the other ship is alone in fault, he may either recover the whole loss against her, or he may recover it from the carrying ship, unless prevented by exceptions in the contract of affreightment; if the carrying ship is alone at fault, he may recover the whole loss from her unless prevented by exceptions in the contract of affreightment (ƒ).

(z) The Collier (1866), L. R. 1 A. & E. 83; The Waterloo (1820), 2 Dods. 433; The Alfen (1857), Swabey, 189. The charterer may have a claim against the owner for delay or deviation in rendering the salvage; The Alfen, vide supra. (a) The Maria Jane, 14 Jur. 857 (1850); The Scout (1872), L. R. 3 A. & E. 512, and Article 2.

(b) The Victor (1860), Lush. 72; The Leo (1862), Lush. 444.

If it were a demise, the charterer would be liable for collision caused by negligence of the chartered ship: Fenton v. Dublin S. S. Co. (1838), 8 A. & E. 835. (d) The Leo (1862), Lush. 44; The Flora (1866), L. R. 1 A. & E. 45.

(e) The Milan (1861), Lush. 388; Thorogood v. Bryan (1849), 8 C. B. 115, to

the contrary, is now overruled by The Bernina (1887), 13 App. C. 1.

(f) See The Xantho (1887), 12 App. C. 503, and Articles 83, 84, ante. On the liability of a ship in rem for a collision, where the charter amounts to a demise, see The Tasmania (1888), 13 P. D. 110; and Article 2.