tribute for the loss? This question is more difficult than that we have just considered, and the authorities in relation to it are not quite uniform.

Upon the whole we think, however, that the weight of reason agrees with what seems to us the weight of authority, that if there be a voluntary sacrifice, made for good cause, and with a reasonable prospect of saving thereby other property which would otherwise be lost, and this other property is saved in fact, it must contribute to the loss, whether it was saved by that or by other means. One reason for this is, that the law-merchant avoids intricate questions if it can, and prefers to settle them by a general rule, which shall on the whole work justice; and it must be difficult, if not impossible, in most of these cases, to draw the line, and say that up to this point the agency and utility of the sacrifice continued, and here other causes of safety began to operate; or to decide that measures rationally and honestly resorted to for the purpose of safety, and followed by it, had no agency whatever in causing that safety.

Another reason is, that if a voluntary sacrifice of some property for other property is made in good faith and for good reason, an important part of the moral foundation for the claim for contribution exists, although the other part, that the property was in fact saved by that sacrifice, may not exist.1

1 In Scudder v. Bradford, 14 Pick. 13, a vessel was dragging her anchors, and drifting towards shore. Her masts were cut away, and she was thereby brought up. An hour afterwards she went on shore. It was held that the masts were not to be contributed for because the property was not rescued from the peril by their destruction. This is in accordance with the 9th article of the 22d Tit. of the Hamburgh Insurance Law. See also, Ord. de la Mar. tit. du jet. art. 15; Code de Commerce, art. 423. In Benecke & Stevens on Average, by Phillips, pp. 100, 105–107, it is strongly contended that this rule is contrary to the principles and policy of general average, on the ground that no one has the right to attempt the preservation of the whole at the risk of an individual. Mr. Phillips, in a note on page 107, says: "The doctrine of the American cases agrees with that laid down in England, namely, that to entitle the parts to contribution for a sacrifice by jettison, the impending peril must be avoided. But the reasons given by Mr. Benecke in opposition to this doctrine, are certainly very forcible, and to my mind conclusive."

SECTION VIII.

OF CONTRIBUTION FOR A GENERAL AVERAGE LOSS.

We proceed now to consider the question, what property contributes, and on what principle contribution is made, in a case of an ascertained general average loss.

The rule, in the first place, is, that all the interests for which the sacrifice is made, and which are actually saved, contribute, and none other. If property be saved for a time, by a sacrifice, jettison for example, which lightens a stranded ship so that she gets off and pursues her voyage, and afterwards, before reaching her port, another disaster destroys one half of the goods saved from the former peril, it is this half only which is finally saved that contributes.1

Maritime interests may all be ranged under one or other of these divisions, the ship, the cargo, and the freight.

In regard to the contributory value of the ship there has been much difficulty, and there is not now any uniformity of prac tice. The ancient codes prescribed certain rules which have long since fallen into disuse.2 The principle which may now be considered as universally adopted, is this; the ship shall contribute for the whole of the value which it had at the time to which the apportionment refers. For some purposes this is held to mean the time of the loss; but, as a general rule, we think not only that the contributory interests are those which are saved, but that the contributory value must be their value when saved, and this must be their value when they arrive safely in port.5

1 Gray v. Waln, 2 S. & R. 229, 255, per Tilghman, C. J.; Dig. 14, 2, 4, 1; Boulay Paty tome iv. p. 443.

2 These are collected by Mr. Stevens in his valuable essay on General Average. See . Stevens & Benecke on Av., Phil. ed. p. 211.

3 Clark v. United F. & Mar. Ins. Co. 7 Mass. 365; Simonds v. White, 2 B. & C. 805.

Douglas v. Moody, 9 Mass. 548; Mutual Safety Ins. Co. v. Cargo of the Ship George, Olcott, Adm. 157.

5 In Simonds v. White, 2 B. & C. 805, Abbott, C. J., said: "But in one point all" (nations) "agree; namely, the place at which the average shall be adjusted, which is

But there is much difficulty in applying this principle. Even if the value of the ship when she sailed can be ascertained, this is seldom the very same, and may be widely different from, her value at the time of the loss. There has been already some disposition in some of our states to adopt one of those rules, of which the law-merchant has many, which seem to be arbitrary, but which are in fact founded upon the average of cases, and work well on the whole, although specially adapted to none; and by this rule one fifth of her value when she sailed is deducted.1 It would seem, however, that even in these states, this rule is not applied when the value can be ascertained more exactly. So, too, where there is an actual sale of the ship, this has been taken as fixing her contributory value.2 In most cases it would do so with sufficient accuracy; but it is obvious that the price might be affected, in either way, by extraneous circumstances, so as not to be an adequate measure of her value. On the whole, in the present state of the law, we cannot perhaps say more, than that the principle above stated should be applied by ascertaining the value of the ship at that time, by the best evidence obtainable. The value, as given in a policy of insurance on the ship, is not to be taken if that value is incorrect.4

One remark may be made as to all contributory values. It is, that the amount to be paid on account of any interest, by way of contribution for any subsequent averages, or for any expenses

the place of the ship's destination, or delivery of her cargo." See also, Gillett v. Ellis,

11 III. 579.

1 Leavenworth v. Delafield, 1 Caines, 573; Gray v. Waln, 2 S. & R. 229. This rule has not been adopted in Massachusetts. Spafford v. Dodge, 14 Mass. 66; Douglas v. Moody, 9 Mass. 548.

2 Bell v. Smith, 2 Johns. 98; Lee v. Grinnell, 5 Duer, 400, 429. But see Mutual Safety Ins. Co. v. Cargo of the Ship George, infra.

In Mutual Safety Ins. Co. v. Cargo of the Ship George, Olcott, Adm. 157, where this whole subject was considered at great length, the court held that the value of the ship at the port of departure was to be taken, making a reasonable allowance for wear and tear, and that this deteriorated value must be proved by evidence. Betts, J., said: “There would manifestly be great conveniency in possessing a criterion which should infallibly fix that amount; but without the support of notorious usage and custom to an uniform scale of depreciation of a vessel by performing the whole or any portion of her voyage, it must be sheer conjecture with the court to pronounce that the abatement of one fifth, or one half, or any other aliquot of the value of the ship when sound, a reasonable measure of its worth at the time of loss."

↑ Meeker v. Klemm, 11 La. Ann. 104. See Mutual Safety Ins. Co. v. Cargo of Ship George, supra.

which are necessary for the ultimate safety of the property, must first be deducted, because just so much has not been finally saved, and may be considered as lost by the loss for which contribution is made.1

Then, as to the contributory value of the cargo. If the goods lost were such, that if not sacrificed, they would certainly have arrived in a damaged state and with diminished value; this diminished value shall be taken as that for which contribution is made. But this is true only where such diminution in value is certain; where there is only a possibility, or a mere probability of it, the value at the time of the loss is to be taken.2

Goods on deck, although not to be contributed for, must themselves contribute, if saved by an average loss.3

If goods are jettisoned, and afterwards recovered, not their whole value, but only so much thereof as is lost by the jettison and damage thence arising, added to the expense of recovering them, is to be contributed for. It may be added, that goods jettisoned still belong to the owner, and a finder of them acquires no title, except a lien on them for the salvage which may be decreed in admiralty.5

It was held by Magens, on what authority we know not, but probably on the practice of his day, that goods which pay no freight, should not pay average. But these things are perfectly distinct, and it is generally said now that there is no such rule, nor any reason for it. It is probable, however, that it means no more than that the clothes, ornaments, and travelling baggage of passengers should not be required to contribute; nor are they in practice at this day. But there seems to be no good reason,

1 See ante, p. 320, note 1.

2 See Rogers v. Mechanics Ins. Co., 1 Story, 603, 609; Stevens & Benecke on Av. (Phil. ed.), 235, note (a).

3 Stevens & Benecke on Av. (Phil. ed.), 210, 248.

The Ordinance, art. 22, tit. Du jet., says: "If the effects jettisoned are recovered by the owners after contribution, they shall be bound to return to the master and those interested, what they have received in the contribution, less the damage still remaining to them from the jettison and the expenses of the recovery." See also, Pothier on Maritime Contracts, n. 136, Cushing's ed. 78; Molloy, book ii. ch. vi. § xvi.

5 Dig. 14, 2, 2, 8, and 14, 2, 8; Emerig. ch. xii. § xl.; Molloy, book ii. ch. vi. § xvi. In Tucker v. Cappes, 2 Rolle, 497, 498, Mr. Justice Dodridge said that the owner of the goods might bring trover against the finder of them.

6 Vol. I. p. 62, s. 56.

7 1 Magens, p. 62, 63. By the Roman law all the goods on board, including the

founded on principle, for excusing them. And Emerigon, who thinks they should not be excused, gives for his opinion the strong reason, that if travellers' trunks, containing just these things, are jettisoned for the common safety, they are always contributed for.1

The books raise a question which has not occurred in practice, whether goods of great value, as jewels, for example, are to be contributed for at their full value, if jettisoned in ignorance of their value. We should say that merely this ignorance can make no difference; but if they were cast over because of this ignorance, and could have been, and would have been saved had their value been known, and there was any thing in the usage of merchants, or in the nature of the goods, which made it a duty on the part of the shipper to declare what they were, and especially if the concealment were in any way fraudulent on his part, their full value should not be contributed for. In such case, that which seems to have been the ancient rule might be applied; which was, only the value which the master might well suppose the goods to have, should be contributed for.2

Jewels and bullion always contribute if saved, however small their bulk, in proportion to their value. So we think should bank-notes; unless it were plain that they could not have been lost in fact, because sufficient precaution had been taken to identify them, so as to recover their value if lost by wreck.4

baggage, wearing apparel, rings, etc., were made liable to contribute. Dig. 14, 2, 2, 2. See also, 2 Molloy, ch. vi. § 14. Both in England and this country the practice is as stated in the text. See Abbott on Shipping, 503; Stevens & Benecke on Av. (Phil. ed.), p. 206, 251; 2 Phil. on Ins. § 1394.

1 Ch. xii. sect. xlii. (Meredith's ed.), p. 495.

2 See 2 Molloy, ch. vi. § 16; Park on Ins. ch. vii. p. 176; Ordonnance de Wisbuy, art. 41, 43; Cleirac, p. 44; Emerigon, ch. xii. § xlii. (Meredith's ed.), p. 497; 1 Magens, 63.

3 Bevan v. Bank of the United States, 4 Whart. 301; Nelson v. Belmont, 5 Duer, 310; Dig. 14, 2, 2, 2; 1 Magens, p. 62; Park on Ins. p. 175; Peters v. Milligan, before Mr. Justice Buller, id. 178; Millar on Ins. 344, 345. Lord Kames, in his work on the "Principles of Equity," p. 116, admits this to be the rule, but contraverts its propriety. See also, Weskett on Ins. p. 130, 131.

* Weskett, tit. Contribution, n. 15, citing 2 Valin's Com. 200, classes bills with money, jewels, etc., as articles that ought to contribute, but Mr. Phillips very justly remarks, that "these are not so properly actual property, to the amount promised to be paid, as the evidence of demands, which evidence may be supplied by other, in case of their being lost, if sufficient precautions are taken by the holder to prove what particular notes they were, this circumstance sufficiently distinguishes them from specie or