VII. 1 Mag. 60. CHAP. may caufe a contribution before fhe reach her defined port. Thus when a veffel has been obliged to make a jettifon, or, by the damages fuffered foon after failing, is obliged to return to her port of discharge; the neceffary charges of her repairs, and the replacing the goods thrown overboard, may then be fettled by a general average. curationibus, Not, 62. Thus I have endeavoured to lay before the reader an idea of what is meant by average; and, in order to do that more diftin&tly, I have defined what average is; I have shewn its origin; and what the neceffary requifites are to render the act, whence averages arife, legal. I then ftated in general what accidents or expences would authorize the fufferer to call for a contribution: the different kinds of property that were fubject to fuch contribution; and lafly, the mode by which the value of this property was to be afcertained. It only remains now to ftate, that the insurers are liable to pay the infured for all expences arifing from general average, Roccus de affc- in proportion to the fums they have underwritten. Roccus fays, "Factu facto, ob maris tempeftatem, pro fublevanda navi, an te"neantur affecuratores ad folvendum æftimationem rerum jac"tarum domino ipfarum? Dic eos non teneri, quia pro rebus "jactis fit contributio, inter omnes merces habentes in illa navi pro folvendo pretio domino ipfarum, et ideo fi affecuratus recu [130] perat pretium rerum jaɛlarum, non poteft agere contra affecu"ratores; tamen tenentur affecuratores ad reficiendum illam "ratam et portionem, quam folvit affecuratus in illam contribu"tionem faciendo inter omnes, habentes merces in illa navi, quæ "portio cum non recuperetur ab aliis, habetur pro deperdita, et "proinde ad illam portionem tenentur affecuratores." The opinion of this learned civilian is agreeable to the laws of all the trading powers on the continent of Europe, as well as to thofe of England, where the infurer, by his contract, engages to indemnify against all loffes arifing from a general average. VII. In former editions of this work, I had contented myfelf CHA P. with flating the nature of general average, and that the fums paid on this account might be recovered against the underwriters. But I had omitted to ftate what remedy the person, whofe goods were thrown overboard, or who had expended money for the general prefervation of fhip and cargo, had against thofe, whofe goods or fhip were preferved by fuch means. In the case of an expenditure of money, probably an action for money paid might be maintained against each of thofe, who were benefited by fuch expenditure. But as this would lead to a multiplicity of actions; and this fpecies of action is not applicable to the cafe of goods thrown overboard, the better mode in all cafes feems to be to apply for contri- Com. Dig. tit. bution to a court of equity, where effectual relief may be and Showers Chancery, (2) obtained againft all the partics in one fuit. Parl. Caf. 131 CHA P. Beawes Lex Merc. 146. Kaim's Princ. of Eq.Introduct, P. 6. CHAPTER THE EIGHTH. SALV Of Salvage. ALVAGE is fo neceffarily connected with the two former chapters, that it will be proper to take it into confideration here, before we proceed to the other parts of this enquiry. Salvage is an allowance made for faving a ship or goods, or both, from the dangers of the feas, fire, pirates, or enemies: and it is also sometimes used to fignify the thing itself which is faved; but it is in the former sense only, in which we are at present to confider it. The propriety and juftice of fuch an allowance must be evident to every one; for nothing can be more reasonable than that he, who has recovered the property of another from imminent danger by great labour, or perhaps at the hazard of his life, fhould be rewarded by him, who has been so materially benefited by that labour. Accordingly, all maritime ftates, from the Rhodians down to the prefent time, have made certain reguart. 45, 46, 47. lations, fixing the rate of falvage in fome inftances, and leaving it, in others, to depend upon the particular circumstances. Leg. Rhod. f. 2. Hartfort v. v.Jones, 2 Salk. 654. The law of England, the decifions of which are not furpaffed by those of any other nation, in justice and humanity, was not backward in adopting a doctrine fo equitable in its nature, and fo beneficial to thofe whofe property was endangered. Thus in an action of trover, the defendants pleaded, that 1Ld. Raym 393. the goods, for which the action was brought, were in a ship, which took fire, and that they hazarded their lives to fave them but that they were ready to deliver the goods, if the plaintiff would pay 4 1. for falvage. The court, upon a general demurrer to this plea, were obliged to give judgment for the plaintiff, because the fpecial plea did not confefs a converfion. But VIII. But upon the general point, for which this cafe is cited, Lord CHAP. Chief Juftice Holt held that the defendants might retain the goods till payment of the falvage, as well as a taylor, an oftler, or a common carrier: and falvage is allowed by all nations; it being reasonable, that a man fhould be rewarded, who hazards his life in the fervice of another. Therefore his lordship, in favour of so just a claim, allowed the defendant to waive his special plea, and plead the general issue. As the propriety of fuch an allowance is admitted by all, the only difficulty that can arife upon the fubject is, to afcertain in what proportions these gratuities and rewards must be allowed. The laws of Rhodes fixed the rate of falvage in feveral in- Vide the pafftances, fometimes giving for falvage one-fifth of what was fages last cited. faved; at other times only a tenth; and at others, one half. The regulations of Oleron left it more unfettled, and declared, Leg. Oler. art. 4 that the courts of judicature should award to the falvers, fuch a proportion of the goods faved, as they fhould think a fufficient recompenfe for the fervice performed, and the expence incurred. Almost every state has regulations on this head peculiar to itself; and the legislature of this country has by various ftatutes expreffed its ideas upon the fubject. I fhall first confider what rule it has established in cafes of wreck, and then what the rate of falvage is in cafes of recapture. When a fhip has been wrecked, the law of England has followed the laws of Oleron in declaring, that reasonable falvage only shall be allowed. But the ftatute will beft fhew the idea of the legislature. It appears from the preamble, that the infamous practices, 12 Ann, stat. 2. which a former ftatute 27 Edward 3. c. 13. had endeavoured. 13. to fupprefs, of plundering thofe fhips which were driven on fhore, and feizing whatever could be laid hold of as lawful prize, ftill continued; or that if the property were reftored to the owners, the demand for falvage was fo exorbitant, that the inevitable ruin of the trader was the immediate confequence. The ftatute, in order to prevent thefe mifchiefs in sect. 1. future, I. VII. CHAP. future, enacted, that if a fhip was in danger of being stranded or run afhore, the fheriffs, juftices, mayors, conftables, or officers of the customs, nearest the place of danger, fhould, upon application made to them, fummon and call together as many men as fhould be thought neceffary to the affiftance, and for the prefervation of fuch fhip in diftrefs and her cargo; and that if any ship, man of war, or merchantman, fhould be riding at anchor near the place of danger, the conftables and officers of the customs might demand of the fuperior officer of fuch fhip, affiftance by his boats and fuch hands as could be fpared and that if the fuperior officer fhould refuse to grant fuch affiftance, he fhould forfeit 100 l. Scct. 2. Then follows the section refpecting falvage. "And for the "encouragement of fuch perfons as fhall give their afliftance "to fuch fhips or vessels, so in diftress as aforefaid, be it enact"ed, that the faid collectors of the cuftoms, and the mafler "and commanding officer of any ships or veffels, and all others, "who fhall act or be employed in the preferving of any fuch 66 fhip or veffel in diftress, or their cargoes, fhall, within thirty "days after the fervice is performed, be paid a reasonable re"ward for the fame, by the commander, mafter, or other fu"perior officer, mariners, or owners of the fhip or veffel so "in diftrefs, as aforefaid, or by the merchant whofe veffel or goods fhall be fo faved; and in default thereof, the said ship ❝orveffel fo faved fhall remain in the cuftody of the officers of "the customs until all charges are paid, and until the officers "of the customs, and the mafter or other officers of the ship "or veffel, and all others employed in the prefervation of the "fhip, fhall be reasonably gratified for their affiftance and trou"ble, or good fecurity given for that purpose, to the fatisfac"tion of the parties that are to receive the fame : and if any difagreement fhall take place between the perfons, whole "fhips or goods have been faved, and the officer of the cul"toms, touching the monies deferved by any of the perfons fo "employed, it fhall be lawful for the commander of the ship "or vellel fo faved, or the owner of the goods, or the mer"chant interefted therein, and alfo for the officer of the cuf toms, or his deputy, to nominate three of the neighbouring « juftices |