Damage by water and breakage.

392. Damage done by water which unavoidably goes down a ship's hatches opened, or other opening made for the purpose of a jettison, must be made good as general average, in case the loss by jettison is so made good.'

Damage done by breakage and chafing, or otherwise, from derangement of stowage consequent upon a jetison, must be made good as general average.'

1 Such damage is considered as an accessory of the jettison, or the immediate direct consequence of making the jettison. German Code, $ 708; French Code, $ 400; Holland Code, § 699; Baily, 171; 13 Peters' U. S. Sup. Ct. Rep., 343; Phillips, § 1286.

* This damage is rejected by the average adjusters in England and Belgium.

To similar effect, however, is the consular convention between France and

Treaty between France and

Peru, Mar. 9, 1861, Art. XXXII., 8 De Clercq, 193.

Convention between the United States and

Italy, Feb. 8, 1868, Art. XIV., 15 U. S. Stat. at L., (Tr.,) 185.

Extinguishing fire on shipboard.

393. Damage done to a ship and freight, or either of them, by water or otherwise, in extinguishing a fire on board the ship, is the subject of general average.

This damage is rejected from general average in England, and admitted in the United States, Holland and Belgium. Baily, 81; 5 Duer's (New York) Rep., 310; 25 Pennsylvania Rep., 366.

Cutting away wreck.

394. Loss caused by cutting away the wreck or remains of spars, or of other things which have previously been carried away by sea peril, is not to be made good as general average.

This damage is not allowed in general average in England or the United States. It is allowed in France. So by the German Mercantile Law, § 708.

In Belgium, in practice, one-third the value is considered as general average, one-third particular, and one-third new for old.

In Holland, the value of the wreck, as such, is contributed for.

Voluntary stranding.

395. When a ship is intentionally run on shore because she is sinking, or driving on shore or rocks, the damage caused to the ship, the freight, and the freightage, or any of them, by such intentional running on shore, is not to be made good by general average.

The question, says Marvin, (Report on Int. Gen. Ave.,) has never been decided by the courts of England, but the uniform practice of the average adjuster is to disallow this loss or damage in general average. Baily, 75.

In France and Spain, it is allowed in general average, provided the ship is got off with her cargo on board, or if, the cargo having been landed, she takes her cargo again on board, and proceeds to a port of refuge, or resumes her voyage. M. Cauvet, SS 345-7.

But if the ship is lost, there is no contribution. The Marine Ordinance of Louis XIV. declares that if the jettison does not save the ship, there is no ground for contribution. Valin, Liv. 3, Tit. 8; Du jet et de la contribution; Spanish Code, Art. 933.

The new German Code, § 708, declares that damages caused by a voluntary stranding, in order to avoid capture or sinking, are general average; but if the stranding was in order to avoid sinking, and the ship is not got off, or, after being got off, is found incapable of repair, the damage is not general average.

The Maritime Codes of Holland, Norway, Sweden, Denmark, and the United States, all make damage caused by voluntary stranding general average, and this without regard to the question whether the ship is subsequently refloated or not. Adams v. Barnard, 10 Howard's U. S. Sup. Ct. Rep., 270; Columbian Ins. Co. v. Ashby, 13 Peters' U. S. Sup. Ct. Rep., 331.

Carrying a press of sail.

396. Damage occasioned to a ship or freight, by carrying a press of sail, is not to be made good by general average.

Covington v. Roberts, 2 Bosanquet & Puller's Rep., 378; Fignet, 390, 334; Cauvet, § 352. The German Mercantile Law adds, (§ 709,)" when the press of sail was carried to avoid stranding or capture."

Port of refuge expenses.

397. When a ship shall have entered a port of refuge, under such circumstances that the expenses of entering the port are admissible for general average, and when she shall have sailed thence, with her original freight, or a part of it, the corresponding expenses of leaving

the port shall likewise be so admitted for general average; and whenever the cost of discharging freight at such port is admissible for general average, the cost of reloading and stowing such freight on board the ship, together with all storage charges on such freight, are likewise admissible; except that any portion of the freight left at such port of refuge, on account of its being unfit to be carried forward, or on account of the unfitness or inability of the ship to carry it, is not liable to contribute to such general average.

Wages and maintenance of crew in port of refuge. 398. When a ship shall have entered a port of refuge, under the circumstances mentioned in the last article, the wages and cost of maintenance of the master and mariners, from the time of entering the port until the ship shall have been made ready to proceed upon her voyage, are to be made good by general average; except that any portion of the freight left at such port of refuge, on account of its being unfit to be carried forward, or on account of the unfitness or inability of the ship to carry it, is not liable to contribute to such general average.

The conflict of authority on the question of port of refuge expenses, is fully discussed in Judge Marvin's Report, p. 30; citing Hopkins, 45; Baily, 179-80; Hall v. Jansen, 4 Ellis & Blackburn's Rep., 500; Journal du Palais, vol. 72, p. 9; vol. 74, p. 613; vol. 75, pp. 189, 549; Cauvet, 362, 372,374; Dalloz, Jurisp., Gen., 1864, p. 70; Antwerp Customs, by Engles and Van Pebourgh; Guide Generalis des Ass. Mar., p. 374; Code de Com. of Spain; Concordance outre les Codes, by St. Joseph; Manuel de l' Assuré, by Morel; Nelson v. Belmont, 21 New York Rep., 36; McAndrews v. Thatcher, 3 Wallace's U. S. Sup. Ct. Rep., 347; Job v. Langton, 6 Ellis & Blackburn's Rep., 779.

Damage to cargo in discharging.

399. Damage done to freight by discharging it at a port of refuge, is not admissible for general average, if such freight shall have been discharged at the place and in the manner customary at that port with ships not in distress.

In practice, this damage is not allowed in general average by the Eng

lish adjusters, but is by the American. 1 Wallace, Jr.'s U. S. Circ. Ct. Rep., 355. And see Cauvet, § 372.

Besides the foregoing classes of general average losses, the German Mercantile Law includes:

Hire of lighters, and damage by reshipping in lightening the ship; § 708, sub. 2.

Ammunition, and expenses of wounded and dead, and the compensations, on a defense against enemies and pirates; sub. 5.

Redemption from capture, and maintenance, and ransom of hostages; sub. 6.

Losses and expenses of obtaining money during the voyage for payment of general average, and expenses of apportionment; sub. 7.

Contributory values.

400. The contribution to a general average must be made upon the actual values of the property at the termination of the adventure, to which must be added the amount made good by general average for property sacrificed; deduction being made from the ship-owner's freightage, and passage-money at risk, of two-fifths of such freightage, in lieu of crew's wages, port charges, and all other deductions; deduction being also made from the value of the property, of all charges incurred in respect thereof, subsequently to the arising of the claim to general average.

The provision on this subject in the Civil Code, reported for New York, (p. 337,) is as follows:

In estimating values for the purpose of a general average, the ship and appurtenances must be valued as at the end of the voyage, the freightage at one-half the amount due on delivery, and the cargo as at the time and place of its discharge; adding, in each case, the amount made good by contribution. See 3 Kent's Commentaries, 242; 5 Duer's (New York) Rep., 429; 1 Caines' Rep., 373; 2 Sergeant & Rarole's (Pennsglvania) Rep., 229.

The same.

401. In every case in which a sacrifice of freight is made good by general average, the loss of freightage, if any, which is caused by such loss of freight, is likewise to be made good.

The principle of a limitation of the liability of the ship-owner to the value of the ship and freight, for the acts and contracts of the master, is incorporated into the system of commercial law of France, Belgium, Holland, the German States, and probably every country on the continent of Europe. French Code, 216; Holland Code, 321; German Code, 452.

And, whether the general average consists of sacrifices to be made good, or expenses to be reimbursed, the contributory values are the same, and are the values saved at the termination of the adventure. In both cases, if there is no salvage, there is no contribution. Cauvet, § 418.

But the English and American courts do not limit the liability of the ship-owner to the value of the ship and freight. 7 Johnson's (New York) Rep., 413; 9 Massachusetts Rep., 548; 14 Id., 66; 2 Phillips, § 1374; 2 Arnould, 344; 5 Common Bench Rep., 330.

And in the law of these countries, a distinction obtains, in certain cases, between sacrifices and expenditures, in fixing the contributory values in the adjustment of general averages. As to losses arising out of sacrifices, the law is the same as in the other countries above named. But in adjusting losses arising from expenditures, not secured by bottomry or respondentia, the value of the property at the time the expenses are incurred, is taken as the true contributory value, and contribution may be exacted in this case, though nothing is ultimately saved. 2 Phillips, § 1374; 2 Arnould, §§ 344-349; 9 Massachusetts Rep., 548; Phillips' Benecke, 241.

CHAPTER XXXV.

SALVAGE.

ARTICLE 402. When allowed.

403. Officers, seamen and pilots.

404. Forfeiture of salvage.

405. Special contract.

406. Amount, how fixed.

407. Apportionment between several salvors.

When allowed.

402. Except as provided in the next article, any person' who rescues, or contributes to rescue' from danger' a ship, her appurtenances, or cargo, or other property, against which a court of admiralty may give a remedy; or who rescues, or contributes to rescue the lives of the persons belonging to such ship,' is entitled to a reasonable compensation therefor, to be paid out of the property saved.

Such compensation is termed salvage.'

It has been a mooted question in American courts, whether salvage