being no stipulations as to demurrage in that charter-party. But the evidence showed that daily during the delivery the plaintiff's brokers complained of the delay, and told the defendants that there would be a claim for demurrage. Looking at the terms of the bill of lading, we think that the fair construction of these complaints and warnings is, that they amounted to a notice to the defendants that they were being held to the terms of the bills of lading as regards an immediate discharge of the cargo. It was sworn by one of the plaintiff's witnesses that the defendants in answer to these complaints and warnings, replied that they hoped that the brokers would not press them, and that the plaintiffs had been very lenient in a former case, which was a case of demurrage. After the discharge was completed the defendants, on being told that the claim for demurrage was three days, asked the broker if he would not settle for less, and on more than one occasion offered to settle for 501. It appears to us that this was evidence upon which the jury might not improperly find that the defendants undertook to pay for any unreasonable delay, and that this, in substance is what the jury have found. The consideration for this undertaking would obviously be, that the plaintiff abstained from exercising his power under the bill of lading to employ other lighters and to keep his lien upon the goods against the consignees for the cost, We think that is the true effect of the finding and the evidence, and that the rule must consequently be discharged. Rule discharged. Solicitors for the plaintiff, Lowless and Co. Solicitors for the defendants, Hollams, Son, and Coward. PROBATE, DIVORCE, AND ADMIRALTY DIVISION. ADMIRALTY BUSINESS. Friday, Jan. 11, 1878. Salvage-Custom to apportion award-Informa- Where separate salvage suits have been unnecessarily prosecuted, the court will only allow one set of costs, and direct the amount allowed to be distributed rateably amongst the plaintiffs in the separate suits. THESE were causes of salvage instituted respectively by the mate and two of the crew of the steam tug Great Western, the owners, master, and remainder of the crew of the Great Western and the owners, master, and crew of the steam tug Kingfisher, against the ship Sarah, for salvage services rendered to that vessel on the 14th Oct. {ADM. 1877, and following days. The two latter actions had been consolidated, leave being granted to the owners of the Kingfisher to be represented at the hearing by one counsel. The Sarah was a sailing ship of 1176 tons register, belonging to the Port of Yarmouth, Novia Scotia, and on the 14th Oct. 1877, whilst on a voyage from Quebec to Liverpool, laden with a cargo of timber, she got ashore on the Middle Mouse Rocks off the coast of Anglesey, in which position she was observed by those on board the Kingfisher, a paddle tug belonging to the Liverpool Steam Tug Company. The Kingfisher was at the time engaged to perform a contract of towage, and was subsequently unable to proceed to the Sarah. She, however, left her tow for awhile, and proceeded to the Great Western, a paddle steam tug of 300 tons gross register, propelled by engines of 130 nominal horse power, and capable of working up to 800 horse power, and which at the time, about 10 a.m., was abreast of the Ormes Head on the look-out for vessels. Those on board the Kingfisher informed those on board the Great Western of the position of the Sarah, and the Kingfisher then returned and completed her contract of towage. The Great Western at once proceeded to the Middle Mouse, and arrived there about noon, the tide being flood, the wind blowing a moderate and increasing gale from W.S.W. and a heavy sea running. When the Great Western arrived the Sarah was aground forward, with a list to starboard, and the sea breaking over her stern; and her captain and crew were removing their effects from her. After communicating with the captain of the Sarah, the Great Western proceeded to put some pilots she had on board into a pilot boat in the neighbourhood, and on her return, about four p.m., found the crew of the Sarah getting into a lifeboat which had come off to her. The Great Western then towed the lifeboat to her station. The captain and pilot of the Sarah shortly afterwards came on board the Great Western. and, after leaving the ship's papers and chronometer, went on shore, to consult Lloyd's agent. About five p.m., whilst he was on shore and no one on board the Sarah, those on board the Great Western observed that the Sarah had changed her position and was thumping heavily on the rocks with her port bilge. The Great Western then went as close to the Sarah as was prudent, and her mate and two of her crew, the plaintiffs in the first salvage suit, boarded her in the tug's boat, and after a while got a hawser from her quarter to the Great Western, which then succeeded in towing her off the rocks; they then got another hawser from her bow to the Great Western, which then proceeded to tow her to Liverpool The Sarah was water-logged, and the mate and the hands from the Great Western remained on board and navigated her till her arrival in the Mersey, at about 8.30 a.m. on 15th Oct., when she was brought to an anchor. During the time the services were performed the wind was blowing a heavy gale, with rain and hailstorms. The Great Western continued in attendance on the Sarah till the 22nd, when the weather having moderated, she, with the assistance of other tugs, beached the Sarah near New Ferry in the Mersey, after which the Great Western still continued in attendance till 25th Oct. The value of the Sarah as salved was 6,5661., and that of the Great Western was 13,000, The discussion turned principally on the exist ence and validity of a custom among tug owners and crews at Liverpool to share salvage awarded at a fixed rate of percentage, according to the ratings of the crew, by which the mate of the Great Western would be entitled to 1 per cent., and each of the crew to 1 per cent. of the total amount. This custom the plaintiffs in the first suit denied, and said that, even if it existed as to ordinary salvage services, it did not apply where some of the crew had rendered special services at the risk of their lives. The salvage service being admitted, no witnesses were called to prove them. Jan. 11.-The cause came on for hearing before Sir R. Phillimore, assisted by two of the elder brethren of the Trinity House. Butt, QC. and Potter, for owners, master, and part of the crew of Great Western, contarded that the custom was a good one : The Ganges, 22 L. T. Rep. N. S. 72; 2 L. Rep. A. & E. 370; 3 Mar. Law Cas. O. S. 342; and that they were entitled to their costs as the question of apportionment might have been raised on motion without instituting a separate action. W. G. F. Phillimore for mate and two of the crew of the Great Western.-Such an agreement, even if proved to exist, does not tie the bands of the court. It does not apply to a case like the present, where the services of those remaining on board the Great Western were unattended with personal danger; and ours were rendered at the risk of our lives. The court will decree an apportionment on equitable principles. Barnes for owners, master, and crew of Kingfisher. We are entitled to salvage. Had it not been for the information brought by us to the Great Western, the salvage services would not have been rendered. We did all we could in the way of salvage. We set the salvage operations in motion. E. C. Clarkson for defendants, owners of the Sarah.-Admitting the salvage services, they only lasted fourteen hours, and were rendered without any danger being incurred, at all events, by those remaining on board the Great Western. The alleged services of remaining by the Sarah, after she got into the Mersey, are not salvage services at all; there were plenty of tugs there, and any of them would have remained by the ship for a small rate of pay daily during that time. The Great Western was not a salvor, but a servant of the Sarah, and is amply remunerated by a payment of 251. per day, which we say we agreed to pay. The service of the Kingfisher, if salvage at all, is of the most trivial nature. We ought not to pay costs of more than one set of salvors at all events. It was unnecessary to bring more than one suit. Sir R. PHILLIMORE, after consultation with the Trinity Masters.-It has been very properly admitted that a meritorious salvage service has been rendered to this ship, which was in my opinionan opinion confirmed by that of the Elder Brethren of the Trinity House-in a state of great danger. She was on a rock on the Middle Mouse Island, and had been left by her crew. There is no doubt that but for the immediate succour she received she would have gone entirely to pieces. There is another consideration of importance, as to the amount of personal peril that was incurred by those who rescued her, which we think in this case has a considerable bearing, on account not only of the service rendered in [CT. OF APP. getting her off the rock, but of the admitted state of the weather. Looking to all the circumstances, and without thinking it necessary to recapitulate the principles on which salvage awards are made in this court, I am of opinion, and the Elder Brethren agree with me, that I ought to award 3000l. as the total amount. The value of the property saved from total destruction, at considerable peril to the salvors themselves, was 65661. As to the distribution of the award, the Kingfisher did render a meritorious service in the nature of salvage service in conveying the information with great rapidity, thus setting in motion the machinery by which the salvage was rendered; and I shall award her 601. with costs. To the three men who went on board the Sarah, I award, to the mate 251. and to the two seamen 201. each, in addition to what are their shares on the usual scale in these boats; the remainder to the owners, master, and crew of the Great Western. I only allow one set of costs; that set of costs to be divided rateably between the plaintiffs other than the Kingfisher, and I allow the Kingfisher her costs. Solicitors for plaintiffs, owners, master, and crew of the Great Western, except three; and also for plaintiffs, owners, master, and crew of the Kingfisher; Wright, Stockley, and Becket. Solicitors for plaintiffs, mate, and two of the crew of Great Western; Tyndall and Paxton. Solicitors for defendants, owners of Sarah; Stone and Fletcher. Supreme Court of Judicature. COURT OF APPEAL. SITTINGS AT WESTMINSTER. Nov. 19, 20, and Dec. 7, 1877. of." Defendant employed plaintiffs to sell a ship, and agreed that if a sale was effected to any person "led to make such offer in consequence of" plaintiffs' mention or publication of it, plaintiff's should be paid commission. Plaintiffs advertised the ship, and put her up to auction, but she was not sold. Shortly afterwards, S. purchased her by private contract. S. had heard of the auction from a person who had been in communication with plaintiffs. Held (reversing the judgment of the Common Pleas Division), that there was no evidence that S. had been led to purchase in consequence of plaintiff's' advertisement. APPEAL from the judgment of the Common Pleas Division. The action was brought to recover a commission of one per cent. on the purchase money of the steamship Bessemer. The defendant, who was the liquidator of the Bessemer Steamship Company, had instructed the plaintiffs to sell the Bessemer by auction. By a written agreement the plaintiffs were to CT. OF APP.] SHEPHERD AND OTHERS v. KOTTGEN And others. have one per cent. commission on the purchase money, if the ship was not sold by auction but a sale was subsequently effected "to any person or firm introduced by" the plaintiffs, 66 or led to make such offer in consequence of" the plaintiffs' "mention or publication of the ship for auction purposes.' The plaintiffs advertised the Bessemer for sale, and put her up to auction, but she was not sold. The defendant afterwards sold her to a person named Wilson, who purchased as agent for a person named Sugden of Leeds. At the trial before Lord Coleridge, C.J., it was proved that a person named Pearson, of Hull, who wrote to the plaintiffs to inquire about the Bessemer shortly after the auction, had met Sugden and had a conversation with him about the auction, and Sugden then stated that if he had been at the auction there would have been a bid. This conversation was previous to Sugden's purchase through Wilson. Lord Coleridge, C.J. ruled that there evidence to go to the jury that Sugden was induced to make an offer in consequence of the plaintiffs' advertisements, and the jury found for the plaintiffs. A rule for a new trial was discharged by Lord Coleridge, C.J. and Denman, J. (ante, p. 453; 36 L. T. Rep. N. S. 740), and the defendant appealed. was Nov. 19 and 20.-Herschell, Q.C. and Reid for the defendant. There was no evidence to show that there was any immediate connection between the advertisements issued by the plaintiffs and the making of the offer by Sugden. The consequence must be proximate, and indirect consequences would not be included: Ionides v. Universal Marine Assurance Company, 14 C. B. N. S. 259; 32 L. J. 170, C. P. Gully, Q.C. and Edwyn Jones for the plaintiffs. -There was a primâ facie case, and it was rightly left to the jury. The obvious intention of the contract was to secure their commission to the plaintiffs in case the Bessemer should be disposed of by a private sale. There can be no doubt that the sale was effected to a certain extent in consequence of the plaintiffs' advertisement, and it was not necessary that the advertisement should be the entire or direct cause of the sale. Herschell, Q.C. in reply. Cur. adv. vult. Dec. 7.-BRAMWELL, L.J.-This case was tried before Lord Coleridge, C.J., and he thought there was some evidence, and left the matter to the jury, who found a verdict for the plaintiffs. There was a motion for a new trial, and the rule was dis charged. I am of opinion that there was no evidence. Certainly the parties in this case have done their best to create litigation, by expressing the contract between them in such a foolish document as that which is now before us. The question is, was there any evidence that the subsequent sale of the Bessemer was effected to a person who was led to make an offer in consequence of the plaintiffs' mention or publication of the ship for auction purposes? I am of opinion that there was no evidence. Sugden was the purchaser of the ship, and Sugden purchased through Wilson. There was evidence to show that Sugden may have been led to make an offer for the ship in consequence of his dealings with Pearsou; but what led Pearson to have correspondence with the plaintiffs and to communicate what he knew to Sugden? This communication took place in con [CT. OF APP. sequence of Pearson's casually meeting Sugden in the market and saying that there had been no offer, and Sugden saying that if he had been at the auction there would have been a bid. But Pearson might just as well have made the same remarks to Sugden if there had been no advertisement. All the advertisement did was to cause Pearson to know that the plaintiffs were the persons who had the sale, but it did not cause Pearson and Sugden to walk together and hold a conversation, nor did it cause Sugden to make the offer. If we look at the words of the document it appears that the fact that Sugden was led to make an offer in consequence of the plaintiffs' mention or publication, &c., is what the plaintiffs have got to prove. It is obvious that Sugden was in no sense led to make his offer by this. The plaintiffs' advertisement was no part in the train of cansation. I think, therefore, that there was no evidence for the jury, and the result is that the judgment of the court below must be reversed, and the verdict entered for the defendant. BRETT, L.J. concurred. COTTON, L.J.-I am of the same opinion. It was not necessary that the plaintiffs' advertisement should be the only or immediate cause of the sale in order to entitle them to commission, but the advertisement must lead in some way to the offer by Sugden, and in my opinion there was no evidence that it did so. Judgment reversed. Solicitors for plaintiffs, Lowless and Co. Solicitor for defendant, Chambers. Friday, Nov. 23, 1877. (Before BRAMWELL, BRETT, and COTTON, L.JJ.) SHEPHERD AND OTHERS v. KOTTGEN AND OTHERS. Shipping-Sacrifice-General average contribution. A shipowner is not entitled to general average from owners of cargo in respect of the abandonment (to save the whole adventure) of ship's tackling when the condition of the tackling was such that it must have been lost in any event. Owing to the looseness of the rigging the mast of a vessel was swaying about during a heavy gale in such a manner as to endanger the vessel; and by the captain's order it was cut away and abandoned. On the trial of an action by the shipowners against the owners of cargo for a genera! average contribution in respect of the loss of the mast, the judge left it to the jury to say whether, at the time of sacrifice, the mast was virtually a wreck and valueless; but he did not ask them to find whether, if the storm had suddenly ceased, the mast might possibly have been saved. Held (reversing the decision of the Common Pleas Division), that there was no misdirection. (a) (a) The effect of this finding of the jury is that the mast was so hopelessly loose that it must have gone even if not cut away, and that it could not have been saved; in other words, that it had no value to the shipowner, and hence there was no loss by him for the common good. It is true that this precise question has never been decided before; but the question whether a mast broken by a gale, and lying alongside a ship fast by the rigging, which is cut away by the master to save the ship's cargo, is to be contributed for has often been discussed. A very clear judgment on this point, citing all the authorities, was given by the Supreme Court of Louisiana in Teetsman v. Clamageran, 2 Louisiana Rep. 195, which was as follows: "There is some slight contradiction in CT. OF APP.] SHEPHERD AND OTHERS v. KOTTGEN AND OTHERS. APPEAL from Common Pleas Division. The action was by shipowners against the owners of cargo to recover for a general average loss incurred by reason of the sacrifice of a ship's mast during a storm. The action came on for trial before Manisty, J., and a special jury, in London, during the Hilary sittings, 1877. The following are the material facts admitted in evidence or proved at the trial: The plaintiffs' barque Rollo sailed from London with a general cargo, the defendants having shipped goods on board of her. The vessel was bound for Hong Kong, and somewhere between Scilly and Lisbon she encountered a storm; portions of the rigging gave way, and from this cause the mainmast was, in the captain's language, lurching violently. His evidence was: "We wore the ship to try and save the mast. The mainmast was lurching violently. The mainmast would not break. We wanted it to break, for the simple reason that it was lurching so heavily that I was afraid it would open the ship out. I ordered the chief mate to cut away the port rigging, so that it might fall to starboard clear of the ship. The mate obeyed my order." On cross-examination he says: "As soon as the starboard main rigging was gone I knew the mast was gone, unless we could secure the starboard main rigging. The whole difficulty was that the mast would not break. I was afraid the mast would break the ship out." Re-examined: "the mast was lurching so much as to put the ship in danger of opening up." the authorities whether under these circumstances masts and rigging form a subject of general average. The better and more general opinion seems to be that they do. Everything which is voluntarily sacrificed for the benefit of all concerned being considered the subject of general, not particular, average. The next inquiry in this case is, what was sacrificed? Not sound masts certainly; for before they were cut away for the general safety, or even before a determination was taken to cut them away, they had been broken by the tempest. In the situation they were, at the time the rigging was cut, they would have been the subject of particular average. Any injury they sustained previous to the time they were sacrificed for the general benefit cannot be the subject of contribution, for that injury was not voluntarily incurred. For the benefit of all compensation should be made to the amount of the loss sustained, and that amount was their value at the time they were separated from the vessel. One of the English writers (Stevens) assigns for reason why masts hanging over the sides of a vessel are not a subject of general average-that the situation in which they are placed renders them of no value. Phillips says they are, or may be, of some value, and that to the extent of that value they are matter for contribution. Boulay-Paty, in recognising the rule that they properly fall under the head of avarie grosse, states that they only do so for the value they had at the time they were cut away. This appears to us to be the good sense of the matter; for it is quite unjust to make the freighters contribute for the full value of masts, which were already rendered scarcely of any value by an accident or force for which they were not responsible : (Boulay-Paty, tit 12, sect. 2, vol. 4, p. 447; Stevens on average, part 1, ch. 1, sect. 31, art. 5; Emerigon, vol. 1, ch. 12, sect. 41, p. 622; Phillips on Insurance.) The average has been settled in this case on the ground that the defendant was bound to contribute his proportion of the price which the new masts cost in the port where the repairs were made. This we think an error for which the judgment must be reversed. The defendant is responsible for his proportion of the value of the masts had after they were broken by the storm, and at the time they were cut away."-[ED.] VOL. III., N.S. [CT. OF APP. Question: "If the mast had not been lurching so much, could you have secured the mast?" Answer: "Yes." The mate being asked, "Why did you want to cut the mast away ?" says, "To save the ship and cargo and our lives, I should think. The mast was lurching about so violently I expected it would rip up the decks. If the decks were ripped up she (the ship) would fill with water.' Crossexamined: "Some of the rigging had gone, and the ship was lurching violently. We thought, of course, then that the mast would go, or, if it did not go, that it would rip up the decks." The second mate says: "The mast kept lurching; the rigging was ultimately cut away, and then the mast went over the side to starboard." Question: "Why was the port rigging cut away ?" Answer: "To let the mast go." Question: "Why did you want the mast to go? Answer: "Because it would have torn the ship's deck; it would have opened her up." Crossexamined, he says: "If it had broken off it would have been a different thing altogether. We were afraid of its ripping up the deck. I can't say if the mast would have gone whether we cut the port rigging or not. She might have gone steadier afterwards. I decline to speculate on what might have occurred. I know that if the mast had not gone the ship would have opened out." The expert called first for the defendants said that, under the circumstances described in the evidence for the plaintiffs, he would have described the mast as a wreck-a gone mast. On crossexamination he said that, "if the mast had been lurched out of the ship, that would have been au extremely dangerous thing for the vessel. The other experts gave evidence much to the same effect, one saying that "it (the mast) was an impediment to the adventure, and one that it was desirable in the interests of all to get rid of." Another, on cross-examination, said, that if the weather had moderated, it might have been possible to have saved the mast, but difficult. The substance of the evidence was, first, that if the storm had continued, of which there was great probability, the mast would not have broken, but would have gone wholly overboard, tearing up the ship, and that in all probability the whole would have been lost; secondly, that the mast might possibly have been saved if the weather had moderated quickly, but this was very improbable; thirdly, that the mast was cut away not as a mere incumbrance like a mast or a board attached by rigging, but for the purpose of preventing its tearing up the ship and sacrificing the adventure. The learned judge concluded his summing up as follows: "You must judge for yourselves, having regard to all the circumstances, the state of the weather, the state of the sea, the rigging gone, and all the circumstances as proved by the witnesses, and there is no evidence to contradict it. Are you of opinion that that mast was vir. tually a wreck and valueless and gone at the time it went over. The jury found that the mast was a wreck; and, in answer to a further question by the learned judge, "Do you find whether it was hopelessly lost?"-"Yes." The jury found for the defendants, and a rule was obtained for a new trial on the grounds of 2 N CT. OF APP. SHEPHERD AND OTHERS v. KOTTGEN AND OTHERS. misdirection, that there was no evidence to justify the verdict, and that the verdict was against the weight of evidence. The misdirection complained of was that the judge did not ask the jury, "Whether, if the weather had moderated, the mast could possibly have been saved." The Common Pleas Division (Grove and Lopes, J.J.) thought there was a misdirection, and that the verdict was against evidence, and made the rule absolute for a new trial, the following judgment being delivered: July 12, 1877,-GROVE, J. (after stating the facts as above),-The rule before us was obtained on the ground of misdirection, and that the verdict was against the weight of evidence. The misdirection complained of was, that the judge did not ask the jury, as was done by Cleasby, B. in the case of Corrie Coulthard, (a) "Whether, (a) COURT OF APPEAL, WESTMINSTER. Thursday, Jan. 17, 1877. (Before COCKBURN, C.J., Sir W. B. BRETT, and Sir R. BAGGALLAY.) CORRIE v. COULTHARD. THIS was an appeal by the defendants from a decision of the Court of Exchequer refusing a rule for a new trial, appealed from on the ground of misdirection, and on the ground that the verdict was against the weight of evidence. The action was brought by the owners of the steamship Star of Erin against the owner of cargo on board that vessel, to recover general average contribution in respect of a mast of the steamship alleged to have been sacrificed by the master of the steamship for the general benefit of ship and cargo. The circumstances as stated by the master in a letter to his owners were as follows: "Since leaving the Lizard I have had nothing but gales of wind from W.S.W. to N.W. and very heavy sea, making little or no headway. On the 11th latitude 45° 35′ north, longitude 8° 40′ west, blowing a very heavy gale of wind and a very heavy sea. Ship hove to under the lower maintopsail on the port tack, and rolling and straining very heavily; at 4 p.m., the mainmast settled down in the ship about 4in., very suddenly slacking up the rigging and allowing the mast to roll about heavily; swiftered the rigging together to try if possible to save it, but had no effect; cut away the maintopmast to lighten it thinking to be able to save the lower mast, but the wreck not clearing properly, the mast still kept settling down in the ship. Being afraid of the heel of the mast working down to the plating and going through the bottom of the ship, cut away the mainmast also, which broke 3ft. above the main deck and went over to leeward clear of the ship." In the evidence of the master taken before an examiner, he said: "As the ship rolled the mast was swaying from side to side; we tried to swifter the rigging in to steady the mast if possible; this did not steady the mast, but made it settle more into the ship; if the heel of the mast had got on one of the plates in the vessel's bottom, it would have gone through her, and in my judgment the ship would then have foundered; when I saw this, I determined to cut away the topmast." The mast was an iron cylindrical mast resting in the iron kelson plate, the edges of the mast going to the end of the plate. The violence of the storm caused the bottom of the mast to split up; iron forming the bottom of the mast kept gradually turning up, and the mast gradually settling down, and this gave the master the impression that the mast was working its way through the bottom of the ship. The mast would not actually have worked through the bottom of the ship, and would not have been lost without the ship was lost at the same time from some other cause. The action was tried before Cleasby, B., and he left to the jury certain questions on which they found, first, that the mast was not valueless as a mast before it was cut away secondly, that if the weather had moderated the mast might have been saved; and thirdly, that the master [CT. OF APP. if the weather had moderated, the mast could possibly have been saved." During the argument another question occurred to us as having in cutting the mast away acted reasonably under the circumstances, although mistaken as to the danger of the mast going through the ship's bottom. C. Bowen for the appellants.-There is here no voluntary sacrifice, because there was nothing to be sacrificed. The mast, when it was cut away was wreck and worthless, and there can be no sacrifice where there is no value. It became necessary for the captain to cut away the mast, as a matter of duty to his owners, to save the ship from destruction, and this is not a matter for general salvage. If goods or part of a ship are in such a condition, as in the case of burning masts or sails, that they must be destroyed eventually by cutting them or throwing them away to save the ship, the master cannot establish a claim for general salvage: Parsons on Insurance, 212; Johnson v. Chapman, 35 L. J. 23, C. P.; 2 Mar. Law If the mast was a source of danger to this ship the master was bound, in his duty to the owner, to cut it away, and the loss falls on his owner. The master had no choice and made no selection of a thing to sacrifice. Cohen, Q.C., and H. Mathew, for the respondents, were not called upon. COCKBURN, C. J.-Assuming the fact as the defendants wish to put them, can they get out of the difficulty that there is a common adventure? Whatever is done for the benefit of the ship, with a view to save the ship, operates pro tanto to save the cargo, It is one thing to say that the mast is rubbish, and another that it was a source of danger to the ship. Suppose the storm had abated before the mast was thrown overboard, and then the master had said, "It is useless; I will throw it overboard." Then it might be called rubbish; but it was not in that condition. It may have been a source of danger, but it was not worthless. It was just like the case of a mast struck by lightning, in which the mast would perish if it was left alone; it is the case of a mast which would still be a good mast were it not that it got loose and was swaying to and fro, and might damage the ship. Then to prevent that possible damage they cut it away, but it has not ceased to be valuable as a mast. When the thing itself is in such a condition that it is about to perish, there is no sacrifice; but here is a mast which is good as a mast, but it becomes a source of danger, and to abate that danger it is cut away. The defendants contend that there must be selection of the thing sacrificed; there cannot always be a selection. This is not a case where there is a quantity to sacrifice, and the master considered the throwing overboard of a certain thing will lighten the ship the most. When you have on board a thing that is a source of common danger, you cannot select, you must sacrifice that particular thing. If your mast is sprung and you know it is liable, as in this case, to get displaced and do damage to destroy the ship and cargo possibly, the only thing you can cut away is the mast; you cannot select. The true principle is that you should voluntarily sacrifice a portion of the ship or cargo for the benefit of both. Suppose a ship carrying a quantity of iron, she strains in a very heavy sea, and it is absolutely necessary to lighten, and the master throws overboard the cargo; he does this to save the ship and cargo, if any remains. It is done for the common good. I do not see any difference between a part of the mast or the rigging in such a condition as to cause danger, and the cargo getting loose. One is the same as the other, according to principle. If the mast was in that rotten condition that it would have gone overboard in a short time, and not have imperilled the vessel, the defendant's argument has some foundation, but if the mast would have gone through the ship, and caused it and all on board to go the bottom, that would be quite different. It is not necessary that the judgment of the master should be borne out by the facts when they come to be examined into. It is enough if he exercises a reasonably sound judgment under all circumstances. I suppose that if, in the judgment of the master, the mast, in the condition in which it then was, would not have been likely to cause damage to the strip, he would not then have cut it away. It was not useless, for he could have tightened his |