Indeed, a consultation with the crew is now so wholly unusual, that if it took place it might be regarded as one of those circumstances of extra precaution, which suggest the probability of fraud.1 SECTION V. THAT THE SACRIFICE MUST BE SUCCESSFUL. The third essential is, that the sacrifice must be successful. The reason of this, also, is perfectly obvious. That which is not saved, is in no way benefited by the sacrifice, and, therefore, in no way under the implied obligation of compensating for it. The cases which raise this question are not numerous. It is said, however, as a consequence of this rule, that where there is delay or deviation for repair, and the wages and provisions expended, or the necessary expenses there incurred, or the repairs,5 would constitute a general average loss, they cannot have this 1 Emerigon (ch. xii. sect. xl., Meredith's ed., p. 469), cites a remark of Targa, to the effect that during the sixty years that he had been judge of the Consulat de la Mer, at Genoa, he had met with only four or five instances of regular jettison; and these were suspected of fraud, for the single reason that formalities had been too much attended to. When a consultation is had, it is merely evidence that the jettison was deliberately made, but it does not prove the necessity of it. Bentley v. Bustard, 16 B. Mon. 643, 695. 2 Scudder v. Bradford, 14 Pick. 13; Bradhurst v. Col. Ins. Co., 9 Johns. 9; Gray v. Waln, 2 S. & R. 229, 255; Sims v. Gurney, 4 Binn. 513, 524. If the vessel is temporarily saved by the sacrifice it would seem that contribution is due, although the vessel is afterwards lost, but if the peril which rendered the sacrifice useless was the same peril which was the occasion of the sacrifice, the loss must rest where it falls, as where the masts, which were on fire at the time, were cut away with the expectation that they would fall overboard and thus save the ship and cargo, and a spar fell through the deck and set fire to the cargo, whereby both it and the ship were partially consumed. Lee v. Grinnell, 5 Duer, 400, 422. 3 Williams v. Suffolk Ins. Co., 3 Sumner, 510, 513, 514. Nelson v. Belmont, 5 Duer, 310, 325. It was said, in this case, that where the expenses were incurred with a view to decide in regard to the resumption of the voyage, they might perhaps be a subject of contribution, and so, where the vessel had been scuttled to save the cargo from destruction by fire, if the cargo had been afterwards taken out in order that the water might be pumped out. 5 Myers v. The Harriet, U. S. D. C., East. Dist. Penn., 2 Wharton's Dig. p. 48, tit. Ins. 140. effect unless by means of the repair the ship is enabled to resume her voyage. For the whole ground on which contribution can be claimed for such expenses, is, that they were needed and effectual for enabling the ship to go herself and carry the cargo to the original destination; for on no other ground can it be said, that these expenses were intended for the common good, or resulted in the common benefit. If, therefore, we suppose a case of capture, wrongful or otherwise, and the crew, or a part, rescue and bring off the ship, one of two results will follow. Either the voyage will be resumed at once, or after repair and refitting, and, perhaps, after a return. home, and then the expense of all this may be averaged. Or else the voyage will be broken up and abandoned, and the ship, though she returns home, is under no favorable circumstances for resuming her voyage, and perhaps no possibility of doing so; and in this case no expenditure, occurring after the capture, can be averaged, for none of it was successful.1 If any portion of the cargo is rescued with the ship, and brought home to its owners, so far as this is concerned the rescue may be successful, and the cargo saved would be bound to contribute towards that part of the expense which was incurred for its benefit in common with that of the ship and freight. In reference to what constitutes a breaking up of the voyage, rendering its resumption impossible, and thus extinguishing all claim for general contribution, it has been held, that a sale of the ship by decree of court for salvage, is such breaking up of the voyage, rendering an abandonment of the same inevitable.2 Sometimes, however, expenses are settled upon the principles of general average which more properly, perhaps, should be determined by the question of agency. In such a case contribution is made, though the voyage be afterwards broken up.3 1 Williams v. Suffolk Ins. Co., 3 Sumner, 510, 513, 514. 2 Williams v. Suffolk Ins. Co. supra. 8 Thus Mr. Stevens, in his work on General Average (Phillips' ed.), p. 74, says: "It will occur to every one in the habit of considering questions of this nature, that there is an essential difference between a claim for Restitution and one for Recompense. In the former case, e. g. in that of jettison, if at any subsequent period of the voyage the remainder of the cargo be lost, there is no claim to replace that part which was jettisoned, and the same if the ship be lost before the articles sacrificed were replaced. But in the case of expenses incurred with a view towards the general benefit, it is clear SECTION VI. WHEN THE THING SACRIFICED COULD NOT HAVE BEEN SAVED. There is another class of cases which should be noticed; that where the very thing which is purposely destroyed in order to save other things, could not in any way be saved, but must have perished at all events. Here there is no claim for contribution; because, properly speaking, the thing was not destroyed, but only its destruction somewhat hastened. This principle is the same with that already stated as governing in the case of a voluntary stranding; which gives a claim only when there was a substantial chance of saving the ship. A good illustration of the rule is found in the case where a vessel, laden with line, was hauled out into the stream and there scuttled because the lime was on fire. Here the lime was destroyed at once; but it must have perished, although much more slowly, if the ship had not been saved; and, therefore, the ship did not contribute towards the loss. But generally where a cargo is on fire from that they ought to be made good to the party, whether he be an agent employed by the master in a foreign port, or the ship-owner himself. The former is a case lying strictly within the adventure; for if a part be sacrificed, and the remainder be lost, the whole is lost. But in the latter case, the expenses are extraneous, and were incurred under an implied obligation of indemnity on all the parties, — which is one of the duties each of the parties who are joined in a sea adventure takes upon himself." See also, 2 Phillips on Ins. § 1319; Spafford v. Dodge, 14 Mass. 66, 77. 1 Crockett v. Dodge, 3 Fairf. 190. This case proceeds entirely on the ground that the lime, at the time the vessel was scuttled, was worthless, and, therefore, does not differ from the principle, before laid down, that goods are to be contributed for only at the value they had at the time of the sacrifice. Nickerson v. Tyson, 8 Mass. 467. See, however, the remarks of Mr. Justice Story, in Col. Ins. Co. v. Ashby, 13 Pet. 331, 340. In Marshall v. Garner, 6 Barb. 394, a claim was made for contribution for masts, which had been cut away. At the time they were sacrificed, the ship was on a beach in four feet of water, while she drew fifteen. She was on her broadside, where she lay on her bilge. If the masts had not been cut away, the ship and cargo would have been lost, and all on board would have perished. As soon as the masts were cut away the vessel righted, and the cargo was saved. It was held, that there could be no contribution, because, at the time the masts were cut, their destruction, from already existing causes, was only anticipated, and that nothing, therefore, was sacrificed. This question was discussed at great length in the recent case of Lee v. Grinnell, 5 Duer, 400. an accidental cause, and the vessel is scuttled, or water is poured down to extinguish the fire, and goods are thereby injured which the fire had not reached, they are to be contributed for.1 A somewhat similar question has arisen, when not that precise thing, but that or some other must be lost, which has been supposed to present some difficulty, but which, as it seems to us, is open to a direct and certain answer. Benecke, a high authority for the most part, says: "If the master's situation were such, that but for a voluntary destruction of a part of the vessel, or her furniture, the whole would certainly and unavoidably have been lost, he could not claim a restitution, because a thing cannot be said to have been sacrificed, which had already ceased to be of any value." 2 A rule like this, would exclude from average precisely those cases to which it is most frequently applied, and concerning which no doubt has ever arisen. she Suppose a ship is on a reef; if not lightened, her destruction and that of the cargo, are perfectly inevitable; but if lightened may be got off; some of her cargo is thrown over, and she is got off, and the ship and the rest of the cargo saved. We know that the law-merchant has given contribution here for some three thousand years. Or, suppose a ship anchored in a tempest off a lee shore; she drags her anchors, and must inevitably be wrecked and lost with her cargo unless the force of the wind upon her is lessened; accordingly her masts are cut away, and they with all her top-hamper are cast overboard and lost; and then she is able to ride out the gale in safety. Could any one doubt that this would be an average loss? This theory or principle of Benecke's rests upon a mere mistake or misstatement. It is true and generally admitted, that if a thing is destroyed for The rigging and upper spars of the vessel, which was lying at a wharf, were on fire. The firemen refused to work on board or near the ship for fear of the blocks, and other articles, which were on fire aloft, falling on them. For the purpose of saving the ship and cargo the masts were cut away. Assuming that the purpose was accomplished, the court were divided on the question whether the masts were to be contributed for, Mr. Justice Duer holding, that they were not, Mr. Justice Hoffman being of a contrary opinion, and Mr. Justice Campbell declining to express his views upon the subject. 1 Nelson v. Belmont, 5 Duer, 310, 323; Lee v. Grinnell, 5 Duer, 400. In Nimick v. Holmes, 25 Penn. State, 366, the distinction between the goods already on fire and the rest of the cargo was not noticed, and it was held that all which were damaged by water were to be contributed for. 2 Stevens & Benecke on Average, Phil. ed. 110. the benefit of others, which thing could not possibly have been saved, it is no sacrifice, and not an average loss. But it is also true, that if there be a number of things together, all of which must perish unless some one of them is voluntarily destroyed, none of them are exposed to inevitable destruction. Each has the chance or certainty of escape if it can prevail on another to perish; and this is precisely the ground of general average. It is as if all must be lost, say by capture,—unless a certain sum be paid. It would be absurd to say all must be lost, and therefore if the sum be paid they shall not repay it; because all need not be lost provided that sum be paid. If instead of paying a sum of money, the voluntary surrender of a part of the property would have the same effect, this would, on the one hand, be the same thing in principle as the redemption by payment of money; and on the other, it would be, in principle, the very case which Benecke's rule would exclude from average. It is true that in words he confines his rule to the ship and her appurtenances, but if it rests on any principle whatever, that must apply equally to all property saved from a common risk by a sacrifice of part. SECTION VII. WHETHER THE PROPERTY IN PERIL AND RESCUED MUST BE SAVED BY THE SACRIFICE. Still another question has arisen which should be considered under this head, of the necessity that the sacrifice should be effectual, in order to become an average loss. This question is, if there be a sacrifice for other property, and that other property is saved, must it also appear that it was saved by the sacrifice, or, in other words, would have been lost without it, in order to entitle the owner of the property sacrificed to contribution. For example, we will suppose a vessel anchored as before, and dragging her anchors, and the masts are cut away, and then a sudden change of wind occurs and it blows off shore instead of on, so that the hull and cargo are safe. Shall the cargo now con |