payable ac cording to the homeward cargo and on the ship's safe arrival. charterers should, upon condition that the ship performed quantity of the her voyage and arrived in London, and not otherwise, pay freight for every ton of goods that should be brought home at so much per ton, and an average loss occurred upon the ship's outward voyage: but afterwards being repaired, completed her adventure, returned back to London, and earned freight, in an action brought by the shipowner on a policy of insurance for the outward voyage, the underwriters were allowed to deduct the amount of a general average on the freight. The value at which the goods cast overboard are to be estimated, and for what value those saved are to contribute. 5. The sea laws of different countries vary no less than upon the former question, in fixing at what prices goods thrown overboard shall be estimated, and for what value those saved are to contribute. By the ordinances of Rotterdam, Stockholm, and Copenhagen, if the accident which occasioned the general average, happened before half the voyage was performed, the jettison was to be estimated at prime cost; but if after that period, then at the price for which such goods would sell, at the place of discharge, freight, duties, and ordinary charges deducted (a). That distinction is now, however, exploded in England, and the custom has become general of estimating the goods saved and lost, at the price for which the goods saved were sold, freight and all other charges being first deducted (b). This rule is agreeable to the marine laws of Wisbuy (c), which declare, that the goods thrown overboard shall be brought into a gross average, and shall be rated at the same price for which other merchandise of the same sort preserved from the sea or enemy, was sold. This custom mentioned by Molloy was certainly new in England at the time he wrote; for it appears by Maylne, that in 1622, the distinction was observed of estimating the goods at prime cost, if the jettison happened before half the voyage was performed; and if after, at the price the rest of the goods (a) 2 Mag. 100, 285, 339. (c) Leg. Wisb. art. 20. sold for, at the place of discharge (a). However, Molloy is a more modern authority; and Magens says, that the prevailing mode of settling averages now adopted in England is conformable to that rule, which has abolished the distinction (b). Gold, silver, and jewels, at most places, contribute to a general average, according to their full value, and in the same manner as any other species of merchandise. It has been said, that an immemorial custom has prevailed at Amsterdam, that gold and silver shall only contribute for half their value : the reason for such a custom, one is at a loss to conjecture (c). In England no such custom prevails; but money and jewels must fall into the general average at their full price: and a modern writer assures us, that the practice was such in London when he wrote; and such I believe it to be at this day (d). In a case of Peters v. Milligan (e), the doctrine here advanced was mentioned and confirmed by Mr. Justice Buller, as clear law. III. The contribution is in general not made till the ship arrive at the place of delivery: but accidents may happen, which may cause a contribution before she reach her destined port. Thus when a vessel has been obliged to make a jettison, or, by the damages suffered soon after sailing, is obliged to return to her port of discharge; the necessary charges of her repairs, and the replacing the goods thrown overboard, may then be settled by a general average (ƒ). 1. It is clear that in making contribution the value of the goods thrown overboard is to be included in the value of the whole that is to contribute, otherwise the proprietors of those goods will receive the full value without contributing anything (a) Malyne Lex Merc. 1st part, c. 26. Park Ins. 296. (b) See Richardson v. Nourse, 3 B. & A. 237; Stevens, 45. (c) 1 Mag. 62. (d) Molloy, tit. Average, s. 4; 1 Mag. 62. (e) Sit. at Guildhall after Mich. 1787. Park Ins. 296. (f) Roccus de Navibus, Not. 96; 1 Mag. 60. The time when the contribu tion is made. to the loss. The late Lord Tenterden, in his Treatise on the Law of "Merchant Ships and Seamen," has inserted an example in figures by which, as he very properly observes, the principle of the mode of contribution can be more easily illustrated (a). It only remains now to state, that the insurers are liable to pay the insured for all expenses arising from general average, in proportion to the sums they have underwritten. Roccus says, "Jactu facto, ob maris tempestatem, pro sublevanda navi, an teneantur assecuratores ad solvendum estimationem rerum jactarum domino ipsarum? Dic eos non teneri, quia pro rebus jactis fit contributio inter omnes merces habentes in illa navi pro solvendo pretio domino ipsarum, et ideo si assecuratus recuperat pretium rerum jactarum, non potest agere contra assecuratores: tamen tenentur assecuratores ad reficiendum illam ratam et portionem, quam solvit assecuratus in illam contributionem faciendo inter omnes, habentes merces in illa navi quæ portio cum non recuperetur ab aliis, habetur pro deperdita, et proinde ad illam portionem tenentur assecuratores" (b). 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 insurer, by his contract, engages to indemnify against all losses arising from a general average. 2. With respect to the payments of the contributions to a general average, it is usual in this country for the brokers who have procured the policy of insurance to be effected, to draw up an adjustment of the average which the underwriters usually pay in the first instance without any dispute. But in case of dispute the law provides a remedy for and against each party to the contribution. In the case of an expenditure of money, probably an action for money paid might be maintained against each of those (a) The reader is referred to the note in question, Abb. 6th edit. p. 449. (b) Roccus de Assecurationibus, Not. 62. who were benefited by such expenditure. But as this would lead to a multiplicity of actions; and this species of action is not applicable to the case of goods thrown overboard, the better mode in all cases seems to be to apply for contribution to a Court of Equity, where effectual relief may be obtained against all the parties in one suit (a). In Birkley v. Presgrave (b), it was decided that a special action of assumpsit may be maintained by the owner of a ship against the owner of part of the cargo, to recover from him his proportion of a general average loss, incurred by cutting the cable and part of the tackle of the ship, and applying them to a use, for which they were not originally intended, for the general preservation of the whole concern. And in the case of Dobson and others v. Wilson (c), it was held by Lord Ellenborough that a similar action might be held by one shipper of goods against another. 3. By the maritime laws and usages of all nations the place of the ship's destination or delivery of her cargo is the place at which the average is to be adjusted, and the master is not compellable to part with the possession of the goods until the sum contributable in respect to them is either paid or secured to him (d). It would, therefore, seem to follow as a natural consequence that if the average is to be adjusted at the place of destination the adjustment must be made conformably with the law of that place. And it has been decided, therefore, in the case of Simond and Loder v. White (e), that where the proprietors of goods were compelled at Petersburg to pay a sum of money to the shipowner as a contribution to a general average, settled at Petersburg according to the law of Russia, (a) Com. Dig. tit. Chancery, (2, 1), and Shower's Parl. Cas. and see the judgment of Lord Ellenborough in Dobson v. Wilson, 3 Camp. 480; see ante, p. 505, case of Milward v. Hibbert. (b) 1 East, 220. (d) 1 Consulat de la Mer, s. 225; Complete Body of Sea Laws, s. 33, in order to recover possession of their goods, they could not recover back again so much of the money paid as would not have been charged to them on an adjustment of average according to the law of England, the ship being a British ship and all the parties British subjects. SECTION XVII. THE ASSURERS, etc. Having in the fifteenth section of this Treatise considered the effect which the term "unless general" has upon the memorandum, by which the underwriters exempt themselves, in the case of some articles, altogether from the payment of average losses, in others unless the losses amount to five per cent., and in all others not mentioned, and, with respect to the ship and freight, unless amounting to three per cent., with this general exception overriding the whole memorandum, viz., "unless general," or "the ship be stranded;" and having also in the preceding section treated of "general average," as to its real nature and character as a most ancient rule and principle of frequent and most useful application in marine affairs at the present day, I come now to treat the last sentence in the policy itself, which was, we recollect, for certain reasons alleged, postponed till after the memorandum was discussed, though the sentence we are about to refer to is properly the last sentence of importance in the policy immediately followed by the subscription of the underwriters; whilst the memorandum, though affecting the whole policy, scarcely can be called part of it, and might be omitted altogether, without interfering with the contract between the parties, any more than with respect to the limitation of the underwriters' liabilities in cases of average losses, except upon two conditions. This sentence is in the following words: "And it is agreed by us, the assurers, that this writing or policy of assurance shall be of as much force and effect as |