Section 6. Expense of Detention by Embargo. It has been decided in Pennsylvania, in a very elaborate case, that wages and provisions, with other expenses, during detention by embargo, are general average.(1) But the current of authorities is decidedly against this doctrine, and the reason assigned by Beawes(2) for the distinction between this case and that of capture, for which he cites Ricardo and Adrian Verwer, is,' that in case of capture the crew remained on board to take care of the vessel whilst they were endeavouring to reclaim her, and those expenses were occasioned with the sole view of preserving the ship and cargo for the proprietors; but in the case of mere detention, there is no room for such a pretence, as the embargoing sovereign would not have either ship or cargo, but only hinder their departure for some particular reasons.' But he adds, Nevertheless, it seems that both reason and justice require that the expense and wages of a ship's company detained in port by a prince's order, should be brought into a general average; for if on one side the merchants who have laden her, are considerable sufferers by the delay, the owners of the ship are not less so, more especially if the crew is large and the detention long.' 6 It was decided in the time of Lord Mansfield, that the expenses of detention by embargo are not the subject of general average. The reasons given were, that there was no authority in favour of an average in this case; that wages and provisions are never allowed in settling a policy on the ship, and that the insurance is on the body of the ship, the tackle, and furniture, and not on the voyage or crew; and accordingly, Mr. Justice Buller said, the ship and tackle being safe, the court look no farther. Lord Mansfield stated that the allowance of this claim would be contrary to the constant practice.'(3) This doctrine has been pretty generally adopted, but it must, as it should seem, depend upon reasons different from those above stated, since those reasons apply to other cases of detention no less than to a detention by embargo. In respect to a claim of this description, including the possi ble earnings of the vessel during the time of detention, the court in Massachusetts said, 'If provisions may be taken to be included in an insurance upon the vessel and her appurtenances, yet such insurance is understood to be against accidents by which the vessel's provisions are destroyed or taken specifically from their proper use; but not against an expenditure of them, even an extraordinary expenditure.' These expenses were put upon the same ground with the decay of the vessel.(4) A ship insured for a voyage from New York to Wilmington, in North Carolina, and thence to Dublin, was arrested by an embargo in the course of the voyage, and after a long detention, an abandonment was made, and the expense of wages was claimed in addition to the amount of a total loss. The court said, 'In addition to a total loss the insurer is answerable only Co. 7 Johns. for the necessary expenses incurred in labouring for the safety (1) M'Bride and recovery of the subject insured. This contract reaches to . Mar. Ins. no other charge, and the detention of the crew was not neces- 431. See sary for that purpose. The wages of the crew, during the de- also Penny v. tention by embargo, were not covered by a policy on the ship.'(1) New York Section 7. Whether Contribution must be claimed in the first instance from the Parties concerned. Ins. Co. 3 v. U.S.Ins. Co. 4 (2) Lapsley 12. s. 44; It has been decided in Pennsylvania, that a shipper, whose goods are thrown overboard for the general safety, must in the first instance claim a contribution of the other shippers, and the owners of the ship and freight; but if without any fault on the part of the assured he fail to recover a contribution of these parties, he may recover of the insurers the whole value of the goods thrown overboard.(2) But a different opinion has been 544, 546. given in New York, in the case of damage to corn by cutting away the mast. It was held that the assured might recover the whole damage of his insurers in the first instance, and leave them to claim a contribution from the other shippers and the owners of the ship.(3) The assured could not have recovered for the damage to the corn as a particular average, this being one of the memorandum articles. . Church, 1 (3) Maggrath Caines, 196. Lond. Ass. Co. 1 M. & S. 318. But in the case of general average for reclaiming a captured (4) Jumel r. vessel and cargo, both belonging to the same owner, it was deci- Mar. Ins. Co. 7 Johns. 412, ded that the assured could not recover the whole amount against and see the underwriters on the vessel in the first instance, since he Williams v. would be immediately answerable over to them again for his proportion as owner of the cargo.(4) Where the contribution is due at a foreign port of delivery, it might, under some circumstances, be lost, unless it were claimed by the assured, or by his agent, the master, at that port. (5) 1 Mag. p. As far as the contribution is lost by such neglect, the insurers, it 76. s. 63. can hardly be doubted, would be discharged from their lia- (6) Val. tom. bility.(5) Section 8. Amount of the Contribution. 2. 165. p. Com. 1. 2. tit. 1 Mag. 57. Q. Weyts. In case of a sacrifice of a part of the ship or cargo, for the general safety, no contribution is to be made unless the purpose of making the sacrifice is effected; and the contribution is made (7) Dig. 14. only by what is finally saved of the ship, cargo, and freight. (6) 2. 1. 4 & 5; But if the goods thrown overboard, or put into boats, for the gene- s. 19. ral safety, are saved, and the ship and rest of the cargo are lost, (8) Dig. 14. no contribution is to be made.(7) If however the ship escapes the peril, on account of which a jettison is made, and is afterwards wrecked, still, whatever is saved from the wreck must contribute for the jettison.(8) A distinction is to be observed between a jettison, and expenses Average for incurred for the general concern. Contribution for jettison is expenditures 2.4; Code de Com. 1. 2. t. 12. du Jet, a. 235; Q. Weyts. s. 20. does not de pend upon the final safety of the property. (1) Infra. c. 14. 8. 9. Amount of loss by Expenditures. made only in case something is finally saved; but actual expenditures in making a port to refit, or claiming captured property, or in repairing damages done to the ship for the general safety, are to be contributed for in general average, though both the ship and cargo are subsequently lost, and nothing of either finally comes to the use of the owner.(1) No reason can be given why such expenditures should be borne by one party rather than another. An exception is, however, made in practice to this rule. If the funds to meet the expenditures are raised by hypothecation upon the security merely of the ship or cargo or both, nothing is considered to be due to the party whose property is hypothecated to raise the funds, unless the property arrives under such circumstances that the bond may be enforced. In case of funds to meet expenditures being raised merely by hypothecation, the claim for contribution for the expenditures, becomes subject to the same conditions as a claim for contribution for jettison; it depends upon the arrival of the property. One reason for this practice is that the party whose property has been hypothecated, has lost nothing, since the bond of hypothecation has not been enforced. Another reason is, that the lender, in consideration of the marine interest, takes the risk of the arrival of the property to the amount lent, for which all the parties concerned engage to pay him a premium, in case of the arrival of the property, since in that case they must contribute the amount of the marine interest. But, upon these reasons, if a part of the ship or goods hypothecated, is finally saved and goes in part satisfaction of the bond, the owner of what is saved would be entitled to contribution for the amount saved, and thus appropriated towards the discharge of the bond. In regard to disbursements which come into general average, the amount expended is, of course, the amount to be contributed. The loss incurred by raising funds, is a part of the ave rage; as in case of the master's drawing bills at a discount. If it is necessary to hypothecate the ship or cargo to raise funds, the marine interest is included in the contribution, but this charge is not allowed if there are any other means of raising funds.(2) Sir William Scott says, 'The first and most obvious fund for raising the money, is the hypothecation of the ship. But the foreign lender may refuse to lend upon the security of the ship, or on that security alone. The master not being able to raise money on that alone, what is he to do? I conceive one (3) The Gra- of two things-to sell a part of the cargo for the purpose of (2) Jumel v. Mar. Ins. Co. 7 Johns. 412. titudine, 3 Rob. 240. (4) See Reade v. Com. Ins. Co. 3 Johns. 360. Loss of freight. applying the proceeds to the prosecution of the voyage, or to hypothecate the whole for the same purpose.'(3) The same necessity which authorizes the master to hypothecate, imposes upon the parties concerned the obligation of paying the marine interest.(4) As far as the loss of freight is to be made good by general average, the amount lost determines that of contribution. The freight lost is contributed for at its gross amount; but only two thirds or some other proportion of the freight saved, which is considered to be equivalent to net freight, contributes. The (1) 1 Mag. freight lost by a jettison, is a subject of contribution, the state- 285. Cas. ment of the average being so made as to include this loss.(1) xxiii. No. N. If the subject of contribution is damage to the ship, the amount Damage to of the damage is determined, as in case of particular average, the ship. by that of the repairs, deducting a third new for old, where the repairs are actually made; and where no repairs are made, the damage is a subject of estimation. Where the value of the ship is to be contributed, in case of its loss by voluntary stranding, the measure of the loss is not the value at the commencement of the risk, as in case of a total loss under a policy upon the ship, but the value at the time when the ship is run aground. The value of the ship at this or that particular place is not the measure, as it is in regard to goods, but the inquiry is, what it would have been worth to the owner at the time of its being run aground, if he could have had it in security, and free from any impending peril. The rule adopted in one case, in Pennsylvania, was the value of the ship at the commencement of the voyage, deducting one fifth for diminution of value, by wear and tear, and decay.(2) This being the value at which the ship would have contributed, had it been saved, and a general average had been made on some other account; in conformity to a decision in New York,(3) it was held that it should be contribu- Caines, 573. ted for at the same value. The reason of adopting this rule was the supposed necessity of some general rule on the subject, but it is a very great objection to it that it would operate very unequally, since the diminution of value would be much greater, as the risk had been of longer continuance. The necessity of a general rule does not seem to be so great as to require the adoption of one that would operate so unequally. (2) Gray v. Waln, 2 Serg. Rawle, 229. (3) Leavenworth v. Dala & field, 1 If goods thrown overboard for the general safety, are re- Loss of goods, covered by the owner before a contribution in general average or damage to is made, the amount of the damage done to the goods by the them. jettison, and the expense of recovering them, is to be contribu- (4) Beawes, tit. Salvage, ted for; and not their entire value.(4) &c. 2 Val. de Av. s. 12. Where the whole value of the goods is to be contributed, a 212; 1 Mag. distinction has been made in some codes, and by some writers, p. 56. s. 53. between a case of jettison before, and one after, half of the (5) Q. Weyts. voyage is performed; making the invoice price the amount to Casar. disc. be contributed in the former case, and the price at the port of 46. n. 47; delivery, in the latter.(5) But no such general distinction is Les Us & Cou. made in England or the United States; the price of the goods de la Mer. p. contributed for is their value at the time and place in reference to which the other goods contribute; that is, goods contribute, and are contributed for, in general average, at the same rate. This rate will be subsequently considered. 21. n. 14. raise funds. The laws of Oleron provide that, if a merchant freights and Goods sold by loads a ship, and despatches her upon a voyage; and that ship the master to enters a port, and is delayed there until her monies are spent; the master may well take and sell part of the freighter's wine or merchandise. And when the said ship comes to her place (1) A. 22. See of discharge, the wines, which the master took, ought to be paid for at the same price for which the other wines are sold."(1) also Laws. Wisb. a. 35. 68, 69; Cons. del. Mar. c. 106; Ord. d'Anvers a. 19; Code de Com. 1. 2. tit. 8. du Jet, a. 109. (2) The Gratitudine, 3 Rob. 240. (3) A. 43. Jettison of value of which the master had no In respect to selling a part of the cargo for the purpose of applying the proceeds to the prosecution of the voyage, Sir William Scott says, 'The books overflow with authorities. They all admit that he may sell a part; some ancient regulations have attempted to define what part. The general law does not fix any aliquot part; and indeed it is not consistent with good sense. to fix a limitation to measure a state of things which is to arise only from necessity. The power of selling cannot extend to the whole, because it never can be for the benefit of the cargo that the whole should be sold ;(2) since the voyage could then be prosecuted only with an empty ship. The authority of the master to sell a part of the cargo, at an intermediate port, in case of necessity, implies an obligation on the part of those interested, and on whose account the sale becomes necessary, to pay for the goods at the price for which they would have sold in the port of discharge. The expense of raising funds falls upon the contributors in this case also, as far as the funds are raised on their account, since, in most instances, they pay for the goods at a higher price than that for which they were sold at the intermediate port. The laws of Wisbuy provided, that if jettison was made of a goods, of the box containing gold, precious stones, or other very valuable commodities, and the master had no reason to suppose that such articles were contained in the box, contribution should be made notice. only for the value of the box.(3) A similar doctrine is stated (4) Q. Weyts. in some of the old writers, who think that only the value of the s. 33; Casar. goods, which the master might reasonably suppose to be condisc. 46. n.49; tained in the box, should be contributed for.(4) This question de la Mer. 22; does not appear to have come under consideration in England Jug. Oler. a. or the United States. Les Us & Cou. 8. n. 22; Val. tom. 2. p. 202. tit. du Jet, a. 12; Code de Section 9. In reference to what Time the Contributory Com. 1. 2. tit. 12. du Jet, a. 231. Contributory of expendi tures. (5) Dig. De leg. Rhod. 1. Value is Estimated. The amount of a contribution is assessed upon the different parvalue in case ties, in proportion as they are benefited by the sacrifice, or interested in the expenses contributed for; that is, in the proportion of the value of their several interests.(5) Accordingly in case of expenditures, the value, at the time of incurring them, ought to contribute; this being the proportion in which the several parties are interested. It is most reasonable, says Mr. Justice Sewall, to estimate the vessel and cargo at their value in the place and at the time, where and when the expense was incurred.'(6) 2. s. 2. (6) Douglas v. Moody, 7 Mass. Rep. 554. A vessel having been detained and subjected to expenses by capture, Mr. Justice Jackson, giving the opinion of the court, said, 'As contribution is claimed as a recompense for services rendered, and not a compensation for property voluntarily sacri |