Malloy, tit. tom, one is at a lofs to conjecture. In England, Average, f.4. no fuch cuftom prevails; but money and jewels muft fall into the general average at their full

price and a modern writer affures us, that the Mag. 62. practice was fuch in London when he wrote; and fuch, I believe it to be at this day.

Roccus de Navibus. Not. 95. Mag. 60.

Roccus de

The contribution is in general not made till the fhip arrive at the place of delivery: but accidents may happen, which may cause a contribution before the reach her destined 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 difcharge; the neceffary charges of her repairs, and the replacing the goods thrown overboard, may then be fettled by a general average.

Thus I have endeavoured to lay before the reader an idea of what is meant by average; and, in order to do that more diftinctly, I have defined what average is; I have fhewn its origin; and what the neceffary requifites are to render the act, whence averages arifes, legal. I then stated 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 laftly, the mode by which the value of this property was to be ascertained.

It only remains now to ftate, that the infurers are liable to pay the infured for all expences arifing from general average, in proportion to the fums they have underwritten. Roccus fays, affecurationi- << factu facto, ob maris tempeftatem, pro fublevanda bus. Not. 62. « navi, an teneantur affecuratores ad folvendum “æftimationem rerum ja&tarum domino ipfarum? Dic

eos non teneri, quia pro rebus jalis fit contribu"tio, inter omnes merces habentes in illa navi pro folvendo pretio domino ipfarum, et ideo fi afecu"ratus recuperat pretium rerum jattarum, non poteft agere contra affecuratores; tamen tenentur affecuratores ad reficiendum illam ratam et por“tionem, quam folvit affecuratus in illam contribu" tionem

"tionem faciendo inter omnes, habentes merces in illa neví, que portio cum non recuperetur ab aliis, "babetur pro deperdita, et proinde ad illam por"tionem 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 those of England, where the infurer, by his contract, engages to indemnify against all loffes arifing from a general average.

CHAPTER THE EIGHTH.

Of Salvage.

SALVAGE is fo neceffarily connected with the two former chapters, that it will be proper to ake it into confideration here, before we proceed to the other parts of this enquiry.

Salvage is an allowance made for faving a ship, Beawes Lex or goods, or both from the dangers of the feas, Merc. 146. fire, pirates, or enemies: and it is alfo fometimes ufed to fignify the thing itself, which is faved;

but it is in the former fenfe only, in which we are at prefent to confider it.

The propriety and justice of fuch an allowance Kaim'sPrinç. must be evident to every one; for nothing can of Eq. Introbe more reasonable than that he, who has re-, duct. p. 6. covered 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 fo materially benefited by that labour. Ac- Leg. Rhod. cordingly, all maritime ftates, from the Rhodians f. 2. art. 65. down to the prefent time, have made certain re- 45. 47• gulations, fixing the rate of falvage in fome in

tances, and leaving it, in others, to depend upon the particular circumstances.

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The

The law of England, the decifions of which are not furpaffed by thofe of any other nation, in juftice 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 the goods, for which the action was brought, were in a fhip, 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 41. 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 upon the general point, for which this cafe is cited, 1 ord Chief Justice or held, that the defendants might retain the goods till payment of the falvace, as well as a tavlor, an oftler, or a common carrier and falvage is allowed by all nations; it 'being reafonable, that a man fhould be rewarded, who hazards his life in the fervice of another. Therefore his lordship, in favour of fo just a claim, allowed the defendant to waive his fpecial plea, and plead the general iffue.

As the propriety of fuch an allowance is admitted by ail, the only difficulty that can arife upon the fubject is, to afcertain in what proportions thefe gratuities and rewards must be allowed.

The laws of Rhodes fixed the rate of falvage in feveral inftances, fometimes giving for falvage one-fifth of what was faved; at other times, only a tenth; and at others, one half. The regulations of Gleron left it more unfettled, and declared, that the courts of judicaturę should award to the falvers, fuch a proportion of the goods faved, as they should think a fufficient recompenie for the fervice performed, and the expence incurred. Almost every ftate has regulations on this head peculiar to itfelf; and the legislature of this country has by various flatutés 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 recap

ture.

When a fhip has been wrecked, the law of England has followed the laws of Oleron, in declaring, that reasonable falvage only fhall be allowed. But the ftatute will beft fhew the idea. of the legiflature.

It appears from the preamble, that the infa- 12 Anne, mous practices, which a former ftature of 7 ftat. 2. c. 18. Edward 3. c. 12. had endeavoured to fupprefs, of plundering those ships which were driven on fhore, and feizing whatever could be laid hold of as lawful prize, ftill continued; or that if the property were restored 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 future, enacted, that if a flip was in danger of Sect. 1. being stranded, or run afhore, the theriffs, juftices, mayors, conftables, or officers of the cuftoms, 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 hip, 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 officers of fuch hip, affiftance by his boats and fuch hands as could be fpared: and that if the fuperior officer fhould refufe to grant fuch afliftance, he hould forfeit

Then follows the fection refpeting falvage. Sect. 2. "And for the encouragement of fuch perfons

as fhall give their afliftance to fuch fhips or veffels, fo in diftrefs as aforefaid, be it enacted, "that the faid collectors of the customs, and the "mafter and commanding officer of any fhips or

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"veffels,

"veffels, and all others, who fhall act or be "employed in the preferving of any fuch fhip or " veffel in distress, or their cargoes, fhall, with"in thirty days after the fervice is performed, "be paid a reasonable reward for the fame, by "the commander, mafter, or other fuperior of"ficer, mariners, or owners of the ship or veffel "fo in diftrefs, as aforefaid, or by the merchant, "whofe veffel or goods fhall be so saved; and in "default thereof, the faid fhip or vessel fo faved

fhall remain in the cuftody of the officers of "the customs until all charges are paid, and un"til the officers of the customs, and the mafter "or other officer of the fhip or veffel, and all "others employed in the prefervation of the ship, "fhall be reasonably gratified for their affiftance "and trouble, or good fecurity given for that "purpose, to the fatisfaction of the parties that are to receive the fame and if any disagree

ment fhall take place between the perfons, "whofe fhips or goods have been faved, and "the officer of the customs, touching the mo"nies deserved by any of the perfons fo em

ployed, it fhall be lawful for the commander "of the fhip or veffel fo faved, or the owner of "the goods, or the merchant interested therein, "and alfo for the officer of the customs, or his

deputy, to nominate three of the neighbour

ing juftices of the peace, who fhall thereupon "adjust the quantum of the monies or gratui "ties to be paid to the feveral perfons acting "or being employed in the falvage of the faid

fhip, veffel, or goods; and fuch adjustments "fhall be binding upon all parties, and fhall be "recoverable in an action at law; and in cafe "it fhall fo happen, that no perfon fhall appear "to make his claim to all or any of the goods "that fhall be faved, that then the chief officer "of the customs of the nearest port to the

place where the faid fhip or veffel was fo in "diftrefs, fhall apply to three of the nearest

juftices