Gladstone, 7 East. Rep. 24. They seemed however to think that a distinction might arise between the case of a chartered ship and a seeking ship.

In Leavenworth v. Delafield, 1 Cain.. Rep. 573. the Court decided that upon an abandonment to the respective underwriters on ship and on freight, in case of capture, those on the freight were entitled to the proportion of freight earned before capture, and those on the ship to the freight earned afterwards; and said that it had been so decided by them in United Insurance Company v. Lenox, which has since been reported in 1 John. Cas. 377. and was affirmed in the court of appeals in 1801. In neither of these cases does it appear whether the ship was chartered for a specific sum or as a general ship. In Davy v. Hallet, 3 Cain. Rep. 21. the Court held that where ship and freight are insured separately, an abandonment of the ship did not carry with it an abandonment of the freight, but that they were separate interests. So in Mumford v. Hallet, 1 John. Rep. 438., the Court held that where a cargo and its profits were separately insured, that an abandonment of the cargo did not prevent an abandonment from being made on the policy on profits. So in Livingston v. The Columbian Insurance Company, 3 John. Rep. 49., the Court held that freight is a distinct subject of insurance, and that a previous abandonment. of the ship would not prevent the insured from recovering the freight insured by another person. But Kent, C. J. in delivering the opinion of the Court said, whether the abandonment of the ship deprives the insurer on freight of his salvage, or the hope of indemnity I need not say, although the better opinion is that it does. In this last case the ship was chartered at the entire freight of $1800, half payable at Rio de la Plata, and half at Hamburg or other port of discharge. Whether this would make any difference, and whether the cases in 1 Cain. Rep. 573. and 1 John. Cas. 377. are otherwise distinguishable from this,

or whether the doctrine in them is meant to be doubted, is for the reader's consideration.

On sale of a ship chartered for a particular voyage, if the ship be sold in the course of the voyage, this does not transfer the freight, and the vendee has no legal right to receive the freight and demurrer due from the freighter upon the charter party. Splidt v. Bowles, 10 East. Rep. 279.

CHAPTER THE EIGHTH.

OF GENERAL OR GROSS AVERAGE.

1. HAVING

AVING thus treated of the respective duties of the owner and the merchant, I now proceed to the consideration of a subject, which is equally a duty of the one and the other namely the general contribution, that is to be made by all parties, toward a loss sustained by some for the benefit of all. This contribution is sometimes called by the name of general [ 326] average, to distinguish it from special or particular average, a very incorrect expression, used to denote every kind of partial loss or damage happening either to the ship or cargo from any cause whatever; and sometimes by the name of gross average, to distinguish it from customary average mentioned in the bill of lading, which latter species is sometimes called also petty average. The principle of this general contribution is known to be derived from the ancient laws of Rhodes, being adopted into the Digest of Justinian with an express recognition of its true origin. The wisdom and equity of the rule will do honor to the memory of the state, from whose code it has been derived, as long as maritime commerce shall endure. The principle of the rule has been adopted by all commercial nations, but there is no principle of maritime law, that has been followed by more variations in practice. The modern ordinances of the several continental states of Europe differ from each other in many particulars relating to this general con

tribution, and the French Ordinance establishes a different mode of contribution in different cases. An enumeration of these varieties would furnish little entertainment or instruction to an English reader: discordant rules rather serve to perplex the choice, than to guide the judgment. If any one is desirous of knowing all, that doctors have written, and states ordained, on these particulars, I must refer him to the very [327] elaborate and learned treatise of Emerigon on insurance (a), a work, in which no subject is discussed without being exhausted. The determinations of English Courts of Justice furnish less of authority on this subject than on any other branch of maritime law; there being only three reported cases of questions between the parties liable to contribution in the first instance, and very few of questions between the party so liable and the insurer, from whom indemnity has been sought. The work of Magens contains a variety of cases of adjustment of average, by consuls and courts abroad and by merchants at home, detailed with all the tedious formularies of the notarial office, and the minutiæ of the counting-house, but accompanied by some very judicious remarks. The most useful information upon this subject is to be found in Mr. Park's system of marine insurances, but as the nature of the present work requires that it should also be treated of here, I shall examine, first, the cases in which general contribution is to be made; secondly, the articles that are to contribute; and, lastly, the mode of contribution; confining myself as closely as possible to the authorities and practice of our own nation, or to those ancient laws and or

(a) Chap. 12. sections 39 to 42. See also on the subject of this chapter Weskett on Insurance titles, Con

tribution, Cutting, General Average, and Jettison, in which are many citations from the foreign ordinances.

dinances, which are generally considered as guides by English lawyers on subjects of maritime law. 66 If

2. The rule of the Rhodian law is this: "goods are thrown overboard in order to light- [328] "en a ship, the loss, incurred for the sake of "all, shall be made good by the contribution of all” (b). The goods must be thrown overboard: the mind and agency of man must be employed: if the goods are forced out of the ship by the violence of the waves, or are destroyed in the ship by lightning or tempest, the merchant alone must bear the loss. They must be thrown overboard to lighten the ship'; if they are cast overboard by the wanton caprice of the crew or the passengers, they, or the master and owners for them, must make good the loss. The goods must be thrown overboard for the sake of all; not because the ship is too heavily laden to prosecute an ordinary course through a tranquil sea, which would be the fault of those who had shipped, or received the goods; but, because at a moment of distress and danger their weight, or their presence, prevents the extraordinary exertions required for the general safety. When the ship is in danger of perishing from the violent agitation of the wind, or from the quantity of water, that may have forced a way into it, or is laboring on a rock, or a shallow, upon which it may have been driven by a tempest; or when a pirate or an enemy, pursues, gains ground, and is ready to overtake; no measure, that may facili

(b) Dig. 14. 2. 1. Lege Rhodia cavetur, ut, si levande navis gratia jactus mercium factus sit, omnium

contributione sarciatur, quod pro omnibus datum est.