has been extended, both by statute and adjudication.1 But the court of Illinois was a common-law court, and the action was a common-law action. We have no doubt whatever that the law of general average would now be applied to all cases occurring on our Western waters, by the same jurisdictions and in the same way in which it is applied in the Atlantic States to cases occurring on the ocean. We have, indeed, one case in Massachusetts, in which the principles of general average eo nomine were applied to a case arising in the city of Boston under a fire policy.2 The eminent counsel asserting this principle rested it upon the analogy between the law of general average and that of contribution by co-sureties. And Chancellor Kent, speaking of adjustment of losses by fire, says: "So there may be a general average for a sacrifice made by the insured for the common good in a case of necessity. It is analogous to the law of contribution by co-securities." 3 and he refers 1 An act of Congress, approved Feb. 26, 1845, entitled "An act extending the jurisdiction of the District Courts to certain cases upon the lakes and navigable waters connecting the same," extended the maritime law of the United States over the lakes, with certain restrictions and limitations therein mentioned. Welles v. Boston Ins. Co. 6 Pick. 182. In this case an insurance against fire was made on stock in trade contained in a store. A fire happening in the neighborhood, the insured, with the consent of the insurer, procured blankets and spread them on the outside of the store, whereby the building and its contents were preserved, but the blankets were rendered worthless. The plaintiffs paid for them, and demanded from the defendants an entire indemnity. The defendants refused to pay the whole of the loss, on the ground that they were not included in the policy, but offered to contribute in proportion to the interest which the parties respectively had at risk. It was held that the loss was not covered by the policy, but that the insurer and insured should contribute to it in proportion to the amount which they respectively had at risk in the store and its contents. The court said: "The plaintiff's can claim then only on the ground of a sacrifice made by them for the preservation of the property endangered by the fire, and for a proportion of which sacrifice they are equitably, if not legally, entitled to recover. They contend, however, that this is not a case proper for contribution, it being customary on fire policies to pay the whole loss. We believe the practice to be as stated; but as the present claim is not within the contract, it certainly is reasonable that the plaintiffs should bear a proportion of the sacrifice made for the common benefit. This decision does not call in question the general principle, that a loss under a policy against fire is to be paid without contribution." This case also decided that other buildings in the neighborhood which would have been endangered if the store had taken fire, were too remotely affected to be liable to contribution. 8 3 Kent's Com. 5th ed. 375. for his authority for this statement to the Massachusetts case above cited. We treat in this work only of marine general average; and while we admit that this is, strictly speaking, only a part of the system of maritime law, we should also insist that maritime law, or the law merchant (a phrase sometimes used as synonymous with maritime law), is itself a part of the common law.1 The rules of general average are founded alike upon justice and expediency; upon justice, because it is obvious that if A's property was saved, and B's property was sacrificed for the benefit of saving A's, A should indemnify B for his loss. But the reasons of the law derived from expediency are as certain and as obvious as those resting upon justice. If we suppose a vessel with her cargo to be owned by the same person, the rule of general average cannot apply to him. But let us suppose that the cargo is owned by many persons; an imminent peril threatens the whole with destruction; this peril may be averted by the sacrifice of a part of the property in peril; as, for example, by throwing over some of the goods, and so lightening the vessel and enabling her to get off from a rock. Now, but for the law of general average, the owner of the goods thrown over loses them with no compensation from any party; and it is plain, therefore, that the different owners, if on board, would strive each to save his own; and in loading the cargo, each owner would naturally endeavor that his goods should be as far as possible out of reach in such an emergency. But it is often important that the goods should be laden in the order and the manner required by their nature, as the heaviest at the bottom, and the lighter above; for otherwise the ship will lose much of her stability; and when an emergency arises which calls imperatively for a jettison of a part of the property, it is of extreme importance that no time be lost. If the master, through a previous arrangement with some owner, or influenced by him or his representative on board, undertook to select one man's goods for jettison, and another man's for preservation, the safety of the ship and remaining cargo, to secure which is the only purpose and justification of the jettison, might be greatly endangered. All this is prevented by the rule which makes it entirely immaterial to each owner whether his goods go, or those of another person, for the rest pay him whose property is sacrificed. 1 Ante, ch. 1, pp. 19-23. But the justice and reason of the rule show us that the owner of the goods lost is not to be repaid their full value, for then he would gain an advantage by having his goods and not those of another thrown over. He must be so far compensated that he should lose the same proportion of the value of his property which was sacrificed that he would have lost had the property sacrificed belonged to another owner. In other words, each of the owners benefited must lose as much and save as much as the other owners do, without any reference to the question which owner it was who owned the property sacrificed. This object is attained by the simple process of first adding together the values of all the property saved, together with the value of the property lost, and then ascertaining the proportion which the value of what is lost bears to this whole value; and every owner must pay that same proportion of his property which was saved to the owner of the property sacrificed. The effect of this is that he is compensated for the property sacrificed, excepting the same proportion or percentage which others lose, and this he also loses. Thus, if a ship be worth $20,000, the freight, $10,000, the cargo, $70,000, of which A owns $30,000, B $20,000, and C $20,000; there is a jettison of A's goods to the amount of $10,000, which saved all the rest. To ascertain the amount due to him from the other parties, first, the whole property at risk is added together, and in the above case it amounts to $100,000, of which ninety per cent is saved, and ten per cent is lost. Therefore everybody must lose ten per cent. The ship pays A $2,000, the freight pays him $1,000, B pays him $2,000, C pays him $2,000; and these payments amount to $7,000, and he thus remains a loser of $3,000, which is ten per cent of his property, or the same percentage which the others lose by their contributions to him. This principle of indemnity, whereby the owner of the property sacrificed is left in no better position and in no worse position than the other owners, may seem to be a very simple one to those who 1 Simonds v. White, 2 B. & C. 805; Lee v. Grinnell, 5 Duer, 431; Abbott on Shipping, 506. By the civil law, only the goods actually saved were to contribute. Id tributum servatæ res debent. Dig. 14, tit. 2, f. 2. But their rate of contribution may have been such as to leave on the party receiving contribution his share of the loss. By the Consolato del Mare it is expressly provided that the property lost contributes in common with that saved. Consolato del Mare, cap. 51 of Pardessus, Lois Maritimes, vol. 2, pp. 101, 102. have had much practice in the law of general average; but some obscurity in the apprehension of this principle not only causes some of the difficulties in its application in practice, but, as we think, some uncertainty in the adjudications on this subject. SECTION II. THERE MUST BE A VOLUNTARY SACRIFICE OF PROPERTY FOR THE BENEFIT OF OTHER PROPERTY. The voluntariness of the loss is the very foundation, and the only foundation, of any claim for compensation. The owner of the property lost stands in precisely the same position as if he and the other owners stood on the deck of the imperilled vessel, and all saw that the common peril might be averted by the sacrifice of 1 It is always true, that, in order to make a case of general average, it is necessary, not only that the ship should be in distress, and the property endangered, and a part sacrificed in order to preserve the rest, but that it is necessary also that this sacrifice should be voluntary. Sims v. Gurney, 4 Binn. 524. See also Peters v. Warren Ins. Co. 1 Story, 468; 3 Kent, Com. 5th ed. 232; Arnould on Ins. 881; Emerigon, chap. xii. § 39, tom. 1, p. 588 (ed. 1827). But it is important to consider in what sense this is true. To give a claim to contribution, there must be a voluntary sacrifice of property for the benefit of other property embarked in a common adventure; if A's vessel is about to come into collision with B's, which is at anchor, and B cuts his cable and thus avoids it, he has no claim for contribution against A for the loss of the cable and anchor. The John Perkins, U. S. C. C., Mass. 1857, 21 Law Rep. 87, 97. Semble, that where a voluntary sacrifice is made for the benefit of the whole adventure, it is general average, whether the ship and cargo and freight belong to one only or to different adventurers, or whether they are partially interested. Oppenheim v. Fry, 3 Best & S, 873, per Blackburn, J. That all losses which arise in consequence of extraordinary sacrifices made or expenses incurred for the preservation of the ship and cargo come within general average, see Birkley v. Presgrave, 1 East, 228; and that all casual and inevitable damage and loss, as distinguished from that which is purposely incurred, is a subject of particular, not general average, see Shiff v. La. State Ins. Co. 18 Mart. La. 630. It is deemed essential, in every case of general average, that the mind and agency of man be employed in producing the sacrifice or delay, in contradistinction to such unavoidable detentions and losses as arise from accidents beyond the control of the master. Spafford v. Dodge, 14 Mass. 74. General average can only arise where the sacrifice has been made for the common benefit, and has accomplished the object. Williams v. Suffolk Ins. Co. 3 Sumn. 513. his property, and he consented to this sacrifice, which he might have refused; they, in consideration thereof, promising to compensate him therefor. It is plain, therefore, that if his own property, with no action of anybody, but by a mere peril of the sea, is lost, this loss gives him no claim whatever for compensation.1 The most ancient, and once, if not now, the most usual form of this voluntary sacrifice, was a jettison of the cargo to lighten the ship. It would be the same thing if the cargo is jettisoned in any way to relieve the ship, as to get at a leak for the purpose of stopping it. It must be not only voluntary, but intended as a means of saving the remaining property; and unless this were the purpose of the loss, it gives no claim for contribution. It may be 1 Ross v. The Ship Active, 2 Wash. C. C. 241; Lyon v. Alvord, 18 Conn. 66. * 1 Magens on Insurances, 160, Case IX. In a case here mentioned goods were taken out of a vessel which had sprung a leak at sea, and put on board other vessels, that the leak might be discovered and stopped. In consequence of this, she was enabled to prosecute and complete her voyage. The goods taken out were captured, and were contributed for in general average. * That no loss or expense is considered and applied in general average, unless it was intended to save the remaining property, and unless it accomplished the object, see Williams v. Suffolk Ins. Co. 3 Sumner, 510; Scudder v. Bradford, 14 Pick. 13; Nickerson v. Tyson, 8 Mass. 467. Thus jettison, which in its largest sense signifies any throwing overboard, in its ordinary mercantile sense means a throwing overboard for the preservation of the ship and cargo. Butler v. Wildman, 3 B. & Ald. 402. If, therefore, at the time of sacrificing the cargo, there was no possibility of saving it, there is no contribution. Crockett v. Dodge, 3 Fairf. 190. Where goods on the deck of a propeller were on fire, causing imminent peril to vessel and cargo, and certain to be themselves consumed, and were thrown overboard, and the vessel and remainder of the cargo saved thereby, it was held to give no claim to contribution, because the loss could not be attributed to the jettison, as the goods were already of no value by reason of the certainty of their destruction by fire, and because for that reason they could not be regarded as voluntarily sacrificed. Slater v. Hayward R. Co. 26 Conn. 128. There must be an intent and an act prompted by and tending to a practicable, or at least a probable result, and not mere endurance or submission to uncontrollable necessity, in either case. Daniels, J., in Barnard v. Adams, 10 How. 270. This principle was involved in a late case in New York, Lee v. Grinnell, 5 Duer, 400, in which the facts were the following: On the night of the 26th of December, 1853, the sails, masts, and spars of the ship The Great Republic, then lying at a wharf in the port of New York, accidentally caught fire, and such was the progress of the flames that their destruction was certain. The masts, &c. were accordingly cut away, and one of the questions which came before the court was whether this cutting away of the masts was a voluntary sacrifice, creating a loss to be contributed for in general average. Upon this question, Hoffman and Duer, |