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are to be deemed caused by the fault of such ship.
i The Emperor o. The Zephyr, Holt's Rule of the Road, p. 24 ; 12 Weekly Rep., 890, Adm. ; The Pyrus 0. The Smaler, Holt's Rule of the Road, p. 40.
Compare, however, Kissam v. The Albert, 11 Am. Laro Reporter, (N. 8.,) 41.
· The Maverick, Sprague's Decisions, 23.
It may perhaps be questioned whether this should be applied to ships without national papers. See Article 69.
381. The party in fault, within the meaning of article 379, is the owner of that ship, defects in which, or in the appurtenances or management of which, or the acts or omissions of inmates of which, contribute to produce the collision.
The ship'itself, and such freightage as is due,' are also liable, but neither the freight nor the owners thereof.:
* The Ruby Queen, Lushington's Rep., 266.
A bona fide transfer without notice does not divest the injured party's lien, if he is not guilty of laches in enforcing it. Edwards o. The Stockton, Crabbe's Rep., 580 ; The Bold Buccleugh, 3 W. Robinson's Rep., 220 ; Harmer 0. Bell, 7 Moore's Privy Council Rep., 267. But this lien, like every admiralty lien, may be lost by delay to enforce it. The Admiral, 18 Law Reporter, 91.
• German General Mercantile Law, Part VIII., Art. II., $ 736 ; The Victor, Lushington's Rep., 72.
3 Freightage on cargo due to the ship owner is liable; deductions, as by charter, from gross freight, and reasonable deductions for non-delivery at port of destination, being allowed. The Leo, Lushington's Rep., 444: 31 Law Journal, Adm., 78 ; 6 Lar Times, (N. 8.,) 58.
Personal liability of wrong.doer.
382. Article 379 does not affect the personal liability of the inmate of any ship for the consequences of his own fault.
German Gen. Mercantile Laro, Part VIII., Art. II., $ 736 ; and see Hale o. Washington Ins. Co., 2 Story's U. 8. Circ. Ct. Rep., 176; The Wild Ranger, 32 Law Journal, Adm., 49; 7 Lar Times, (N. 8.,) 725; 9 Jurist (N. S.,) 134.
Compulsory pilotage. 383. When the ship is in charge of a pilot, where pilotage is compulsory, and the crew have performed the duties required of them, the owner and ship are not responsible for the collision if caused by the pilot ;' but it is the duty of the State by which the employ. ment of the pilot was compelled, to indemnity the parties injured."
' In the Minna, Lar Rep., 2 Adm. & Ecc. 97, the owners of a wrongdoing ship having, by compulsion of law, a pilot on board, were held not to be exempt, under the 388th section of the Merchant Shipping Act, 1854, from liability for damages, where a neglect of duty on the part of the master conduced to the collision.
* German General Mercantile Law, Part VIII., $ 740. Having a pilot on board is not an exoneration. The Carolus, 2 Curtis' U.S. Crrcuit Ct. Rep., 69 ; Denison o. Seymour, 9 Wendell's (New York) Rep., 9.
3 This qualification is added, as being a reasonable condition to annex to compulsory pilotage.
The expediency of the law of compulsory pilotage, so far as it exempts the owner of the wrong.doing vessel from all liability, was considered and questioned in The Halley, Law Rep., 2 Adm. & Ecc., 3, where the plaintiffs, owners of a foreign vessel, claimed damages for a collision between their vessel and an English ship, in Belgian waters. The defendants, the owners of the English ship, pleaded that, by the Belgian laws, pilotage was compulsory in the place where the collision occurred. It was held, that the plaintiffs were entitled to plead, in reply, that, by the same laws, the owner of the wrong-doing vessel, although compelled to take a pilot on board, continued liable for the damages.
383a. In every case of collision on the high seas, the colliding ships must stay by each other, so long as possible, until the whole extent of the damage is ascertained, and all the relief afforded by the least injured ship, which it can possibly afford. New.
385. Order of jettison.
ARTICLE. 393. Extinguishing fire on shipboard.
394. Cutting away wreck.
399. Damage to cargo in discharging.
400, 401. Contributory values. Jettison.
384. A carrier by water may, when in case of extreme peril it is necessary for the physical safety of the ship or cargo,' throw overboard, or otherwise sacrifice, any or all of the cargo or appurtenances of the ship. Throwing property overboard for such purpose is called jettison.
Lawrence o. Minturn, 17 Howard's U. S. Sup. Ct. Rep., 100.
This and several of the following Articles are, substantially, from the Civil Code, reported for New York, pp. 336, 337.
" To constitute a case of general average," says Judge MARVIN, (Réport on Int. Gen. Ave.,)“ three things must concur: 1st. There must be a common danger impending, in which ship, freight, and cargo participate. 2nd. There must be a sacrifice of a portion of the ship or cargo, or extraordinary expenses incurred for the purpose of avoiding that common peril. 3rd. The attempt to avoid the peril must be successful."
“The English and French systems, as administered by the average adjusters, in the absence of express decisions of the courts on the question, accord best with the idea, that the motive for making the sacrifice or incurring the expense must be the common physical safety of the property: and this attained, the general average charges cease, although the ship may not have completed the voyage. The American system accords best with the idea, that the motive may be either the physical safety of the property, or the common benefit ; i. 6., the arrival of the ship and cargo in company at the port of delivery. The English and French systems recognize the idea, that the community of interest is interrupted or sus pended by the landing of the cargo in a place of safety, however remote from the port of destination; whereas the American system recogpizes the community of interest as continuing, uninterruptedly, until the termination of the adventure.”
Order of jettison.
385. A jettison must begin with the heaviest and least valuable articles, so far as may be practicable. Code de Commerce, Art. 411. By whom made. 386. A jettison can be made only by authority of the master of a ship, except in case of his disability, or of an overruling necessity, when it may be made by any other person.
3 Kent's Commentaries, 233.
387. Except as hereinafter provided, all losses caused by jettison, and all damage done to ship or freight,' or both, by the master, or by his orders, when necessary for the physical safety of the ship or cargo,' as also the consequential damage resulting therefrom, and the expenses incurred for the same purpose, are general average.
1 In addition to exceptions mentioned in the following Articles, the German Mercantile Law excepts goods not represented by bill of lading or manifest, and money and valuables of which the master was not informed. $ 710, sub. 2, 3.
: As to whether this should be extended to sacrifices for the common benefit in other cases, see note to Article 384.
3" The question has been raised whether general average contribution is due when the danger originates in the mismanagement or fault of the master or owner of the cargo, or a third person. Some Codes provide, and among them the new German Code, that contribution shall in such case take place, but the party at fault shall not receive anything, but shall be liable to reimburse the other contributors." Marvin, Report on Int. Gen. Ave.
Loss, how borne.
388. A general average loss,' when lawfully made, must be borne in due proportion by all that part of the ship, appurtenances, freightage and freight, for the benefit of which the sacrifice was made, and which was really saved,' as well as by the owner of the thing sacrificed.'
1 By the German General Mercantile Law, $ 707, a claim for damage belonging to general average is only so far set aside by a particular aver. age subsequently affecting the damaged article, (whether it be again damaged or totally destroyed,) as it is proved that the latter misfortune not only was in no way connected with the former, but that it would also have resulted in the former damage if this had not already been occasioned.
If, however, before the occurrence of the latter misfortune, steps should already have been taken to reinstate the damaged article, then the claim
for reimbursement holds good so far as such steps are concerned. See Barnard v. Adams, 10 Howard's U. S. Sup. Ct. Rep., 270, 303.
· German General Mercantile Law, $ 705. It is added there in SS 706 and 7, that the obligation to contribute to general average froni ad article saved, is not annulled because the article is subject subsequently to particular average, unless it is totally destroyed.
That Code also provides that ammunition and provisions of the ship, wages and effects of crew, and baggage of passengers do not contribute. 8 725.
3 Lee o. Grinnell, 5 Duer's (New York) Rep., 431 ; Simonds o. White, 2 Barnewall & Crexsuell's Rep., 805. But by the German Mercantile Law, an average loss does not in general constitute a personal liability.
Loss, how adjusted.
389. The proportions in which a general average loss is to be borne must be ascertained by an adjustment, in which the owner of each separate interest is to be charged with such proportion of the value of the thing lost as the value of his part of the property affected bears to the value of the whole. But an adjustment made at the end of the voyage, if valid there, is valid everywhere."
3 Kent's Commentaries, 233.
The German General Mercantile Law (S$ 711, &c.,) contains provisions regulating the adjustment in detail.
390. A nation may give to its consuls power to adjust averages and regulate repairs, in the cases of ships. of such nation coming within the country of the consul's residence, when such acts are demanded by a party concerned who has no domicil in the country, and there is no agreement between the parties for a different mode of adjustment, or regulation of repairs.
But a consular adjustment, or average, or regulation of repairs, made under this article, does not bind any person who is either domiciled in the country, or a member of a third nation, unless he consents to the submission to the consul.
Suggested by the treaty between the United States and France, Feb. 23, 1853, Art. X., (10 U. S. Stat. at L., 998,) which provides that consuls shall