may be more difficult, and is not, perhaps, positively settled by authority. We should say, however, even then, that a jettison gave no claim on the cargo below deck, on the ground that the law-merchant would not give this sanction to a procedure which it deems very dangerous and objectionable. But the usage would probably have the effect of giving him a claim upon the ship.1

1 It was held in an early case in this country, Brown v. Cornwell, 1 Root, 60, decided in 1773, that where horses shipped on deck were thrown overboard for the safety of the ship and cargo, the owner of the horses was entitled to, a general average contribution, it being the universal custom to ship horses in that way. This case has not been followed by any subsequent authority in this country. Dodge v. Bartol, 5 Greenl. 286; Cram v. Aiken, 13 Maine, 229; Sproat v. Donnell, 26 Maine, 185; Barber v. Brace, 3 Conn. 9; Hampton v. Brig Thaddeus, 4 Mart. La. 582. In the case of the Taunton Copper Co. v. Merchants Ins. Co. 22 Pick. 108, the question arose whether underwriters were liable for copper stowed on deck in conformity with a usage, the policy being "on property (copper or zinc) on board any vessel or vessels," between given dates. It was proved that a usage had existed for forty years to carry goods on deck which were not liable to be injured by dampness, and that copper and zinc were of this class. Mr. Justice Putnam, in delivering the opinion of the court, said: "The general rule seems to be well established. The plaintiff must show that his case comes within the exception, or, in other words, that the defendants have assumed the risk of the goods on deck. They prove that it is usual to carry goods on deck, but fail to prove that underwriters have ever paid for them, unless there was an express undertaking, or one by necessary implication. The former is not suggested, and it seems clear, that no inference could have been drawn from the nature of the goods which were named to subject the defendants, by implication, to any other risk than is assumed upon property generally, or ordinary goods." Mr. Phillips, in his valuable work on Insurance, vol. 1, § 460, remarks that the decision that a usage to pay for the goods when carried, as well as a usage to carry them, must be proved, “is quite a questionable form of presenting the rule." In Da Costa v. Edmunds, 4 Camp. 142, insurance was effected "on forty carboys of vitriol." They were shipped on deck, and during the voyage were thrown overboard for the safety of the ship. It was proved that they were frequently carried on deck, but that it was also usual to stow them below. It was contended for the underwriters that they were not liable because no notice had been given them of the manner in which the carboys were to be carried, but Lord Ellenborough held that if there was a usage to carry vitriol on deck, the underwriters were bound to take notice of it, without any communication. The jury found for the plaintiff. See also the same case in Banc. 2 Chitt. 227. The point next arose in England in a case between a shipper and ship-owner. Gould v. Oliver, 4 Bing. N. C. 134. The action was against the ship-owner to recover damages for a loss arising from improper stowage, and also a general average loss for goods belonging to the plaintiff which had been shipped on deck on a voyage from Quebec to London. The second count set forth a custom that the owners of ships trading between Quebec and London, had a right of loading on the decks of their vessel a portion of the timber which they were employed to carry. The plea admitted the usage to carry timber in the manner mentioned, but denied that any custom existed to

The owners of a vessel who collect the contributory shares are entitled to a commission of two and one half per cent.1

SECTION III.

OF SOME EXPENSES OR CHARGES USUALLY SETTLED AS GENERAL

AVERAGE.

There are some losses or expenses which are always settled in the same way as a general average loss, and are usually called by that name for convenience, although they do not fall precisely within any definition of it. Salvage is the principal one of these. We shall see that this word has two meanings. It is

pay a general average contribution upon timber so laden and jettisoned. To this plea the plaintiff demurred and issue was joined on the demurrer. The court held that the plaintiff was entitled to recover. This case was supposed by the court in Taunton Copper Co. v. Merch. Ins. Co., ut supra, to go only to the extent of holding that the owner of the ship was liable, in such a case, to contribute, and not the owners of the cargo; but it appears from a report of the same case at a further stage of proceedings, that all the cargo was owned by the plaintiffs, and the question therefore did not arise. Gould v. Oliver, 2 Man. & G. 208, 2 Scott, N. R. 241. In Hurley v. Milward, 1 Jones & Carey, Irish Exch. 224, an action was brought against the owners of a vessel for a general average contribution for the loss of certain pigs, which were shipped on deck, on a voyage from Waterford to London, and were jettisoned for the safety of the vessel. Judgment being given for the plaintiff, the ship-owners sued their underwriters for the amount thus paid by them, and, after an elaborate argument before the court of Queen's Bench, it was held that as the carrying of the pigs on deck was justified by the usage of the trade, the underwriters were responsible. Milward v. Hibbert, 3 Q. B. 120. Valin, also, in his commentary on the Ordinance of Louis XIV. liv. 3, tit. 8, art. 13, remarks, upon the rule there laid down, that "this disposition does not apply to small vessels going from port to port, where a usage exists of stowing their lading as well above as under deck." See also the learned note of Sergeant Shee, upon this subject, Abbott on Shipping, p. 481.

1 Barnard v. Adams, 10 How. 270, 308; Sturgis v. Cary, 2 Curtis, C. C. 382. The language of the court, in Barnard v. Adams, would imply that the right to charge this commission rested on the custom of average brokers; but in Sturgis v. Cary, Mr. Justice Curtis stated that he had obtained a copy of the record in that case and found that no evidence of any usage was offered, and that the presiding judge instructed the jury, as matter of law, that the charge was correct, which ruling, being excepted to, was sustained by the Supreme Court. He accordingly held, that a usage in the city of Boston not to allow such charge, was not admissible to contravene the general rule of the law-merchant.

sometimes used to indicate what is saved from a wreck; but in this sense we do not refer to it now. The word more frequently means the amount that is paid to those who save maritime property which is endangered or abandoned; and such persons are called, in maritime law, salvors. This amount is usually decreed in admiralty in the form of a percentage on all the property saved. Sometimes, however, it is a gross sum given to the salvors. In either case it is settled in the same manner as a general average claim, and usually under that name.1 Whereever any expenses or advances are to be contributed for, we suppose that the common rules of law in regard to interest would determine whether it should be charged.2

On the other hand, damage by collision, which is a frequent sea peril, is not settled as an average loss, but according to principles stated elsewhere. It should, however, be said, that a collision may give rise to expenses for the common benefit, in the delay or deviation necessary for repair, or otherwise, and, in this country at least, such expenses would be averaged."

Bills of lading often contain a clause requiring payment, in addition to freight, of "primage and average accustomed." This means a kind of composition established by usage for

1 Heyliger v. N. Y. Firemen Ins. Co. 11 Johns. 85; Stevens & Benecke on Av. (Phil. ed.), 141, note. In Peters v. Warren Ins. Co. 1 Story, 463, 468, Mr. Justice Story stated the law as follows: "General average is commonly understood to arise from some voluntary act done, or sacrifice, or expense incurred, for the benefit of all concerned in the voyage or adventure; and then it is apportioned upon all the interests which partake of the benefit. But the mere fact, that an apportionment is made of a loss between the different parties in interest, if the loss itself does not arise from some act done, or sacrifice, or expense voluntarily incurred, for the common benefit, does not make it necessarily a case of general average by our law. Salvage is properly a charge, apportionable upon all the interests and property at risk in the voyage, which derive any benefit therefrom. But, although it is often in the nature of a general average, it is far from being universally true, that, in the sense of our law, all salvage charges are to be deemed a general average. On the contrary, these charges are sometimes a simple average, or partial loss. We must, therefore, look to the particular circumstances of the case to ascertain, whether it be the one or the other."

2 See Shelton v. Brig Mary, 6 Law Reporter, 75, and the remarks of Mr. Justice

Story in Peters v. Warren Ins. Co. 1 Story, 463, 468.

3 Peters v. Warren Ins. Co. 3 Sumner, 389; Emerigon, ch. 12, s. 14, note 1 (Meredith's ed.), p. 328.

* See ante, ch. 7, § 6, on Collision, p. 187–211.

5 Peters v. Warren Ins. Co. 3 Sumner, 389, 392.

sundry small charges, which were formerly assessed by way of average; such as port charges, pilotage, and the like. And there are still sundry small charges usually or frequently assessed as average, and of course paid for by contribution; but in regard to many of them there is probably no established usage or rule of law. The principal of these are towage,2 light money, dockage, and wharfage, hire of anchors, cables, or boats for temporary purposes, or of persons to guard the ship, quarantine expenses, cutting a way through ice, and similar charges.

SECTION IV.

THAT THE SACRIFICE MUST BE JUSTIFIED BY A NECESSITY.

We will now consider the second essential of general average; which is, that the loss or sacrifice must be necessary, or justified by a reasonable probability of its necessity and utility. Cases involving this question are very rare, but the reason of the rule is perfectly obvious; for such a sacrifice without a necessity, real or apparent, is simply a foolish or wicked destruction of property, which he who causes it must respond for, and which cannot give the suffering party any claim upon any other party, whom it neither benefited nor was likely to benefit.4

1 See post, ch. 11, § 1.

2 Lyon v. Alvord, 18 Conn. 66.

See Wightman v. Macadam, 2 Brev. 230.

* The Gratitudine, 3 Rob. Adm. 240, 258. Mr. Justice Curtis, in Lawrence v. Minturn, 17 How. 100, 110, speaking of the necessity which would authorize the master to make a jettison, said: "If he was a competent master; if an emergency actually existed calling for a decision, whether to make a jettison of a part of the cargo; if he appears to have arrived at his decision with due deliberation, by a fair exercise of his skill and discretion, with no unreasonable timidity, and with an honest intent to do his duty, the jettison is lawful. It will be deemed to have been necessary for the common safety, because the person, to whom the law has intrusted authority to decide upon and make it, has duly exercised that authority." On the other hand, there is a dictum by Coulter, J., in Myers v. Baymore, 10 Barr, 114, 118, to the effect that if the goods are thrown overboard unnecessarily by the master, although he acts with the most honest intention to save the vessel, there is no claim for general average. Although this is the law relative to the power of the master to sell the vessel, we should doubt its applicability to the

In former times the law-merchant guarded with much care against wanton or unnecessary loss of this kind; particularly by requiring that the master should formally consult his officers and crew and obtain their consent before making a jettison of the cargo. But the rule has passed away, and the practice is almost unknown.2 An inquiry into this change, so far as it is grounded upon a change in the character of sailors, or in the view which the law-merchant takes of them, might not be without its interest; but this is not the place for it. It is now universally conceded that the interests of commerce require a plen ary authority on the part of the master, who would seldom think of consulting his crew in any emergency, and is not required by law to do it. Our statutes speak in some cases, as will be seen in a later chapter,3 of a joint action of the crew and the officers of a ship, but even this seldom occurs in fact.

case of a jettison. In Lawrence v. Minturn, supra, the vessel had met with a gale and was severely strained by the weight of the deck load. After the gale abated, and when the sea was calm and the vessel in no immediate danger, the master, officers, and crew made a protest, setting forth the above facts and asserting that the deck load was unsafe, and that it should be thrown over as soon as possible. This was accordingly done. It appeared that the goods were of such a nature that they could not be thrown overboard, without the greatest risk, when there was any considerable sea. It was held, that the jettison was justifiable. The court said: "Precaution against dangers, which are certain to occur, is surely proper. That they must experience gales and heavy seas at that season, in that voyage, was so nearly certain, that it was not unreasonable to act on the assumption that they would occur, and prepare the ship to encounter them while in a smooth sea, when alone they could do so." In Bentley v. Bustard, 16 B. Mon. 643, it was held, that if a boat runs on a known obstruction, or upon the shore, without being driven on by the violence of the wind or the force of the current, and the running on could have been prevented by proper care and skill, a jettison will not be justified, although, the boat being on, it is the only way of getting her off, but the owners of the boat are liable for the value of the goods thus thrown overboard. So if the unseaworthiness of the vessel at the time of sailing on the voyage caused, or contributed to produce, the necessity for the jettison, the loss is not within the exception of the perils of the seas, and the vessel is liable for the whole value of the goods thrown overboard. Dupont de Nemours v. Vance, 19 How. 162, 166. See also, Lawrence v. Minturn, 17 How. 100, 110; Chamberlain v. Reed, 13 Maine, 357.

1 See authorities cited in Emerigon, ch. xii. sect. xl. (Meredith's ed.), p. 469, 470 ; and in The Nimrod, Ware, 9.

2 Birkley v. Presgrave, 1 East, 220, 228; Sims v. Gurney, 4 Binn. 513; Col. Ins. Co. v. Ashby, 13 Pet. 331, 343; Nimick v. Holmes, 25 Penn. State, 366, 372. It is the duty of the master to determine when it is necessary to sacrifice a portion of the cargo for the safety of the rest, and, as a general principle, the crew have no authority to make a jettison, without his orders. The Nimrod, Ware, 9, 15.