The rule that, where the loss is occasioned by the fault of the owner, there is no claim for contribution, has been applied to the case of a boat being cut away. There have been quite a number of cases on this subject. If a boat hangs at the stern or at the quarters of a vessel from the davits, it is easy for a sea which comes aft to fill the boat, and her weight may break her fastenings or the davits, and then the boat is lost. But neither the fastenings nor the davits may give way, and then the boat, being full of water, presses down the stern. This may be an added peril which it may be necessary to remove at once, and for this purpose the fastenings are cut and the boat is lost. Then the questions arise, Is this a voluntary sacrifice calling for contribution? We think

that this question must be determined by the further one, Was the boat properly in that place or exposed to that peril ?2 And again,

goods may sustain from being thus exposed; and if it becomes necessary, from stress of weather or the dangers of the seas, to sacrifice the deck-load for the common safety, this does not present a case for contribution or general average, but it is the particular loss of the master, it having been occasioned by his own fault; see The Paragon, Ware, 335. The case of The Waldo, Daveis, 161, was an action in rem, brought against the ship for the loss of a quantity of potatoes which were carried upon deck without the consent of the shipper, and perished from the exposure there received. The court say: "They were undoubtedly lost by sea damage, and although the dangers of the seas are excepted by the bill of lading, the master, by carrying the goods on deck, waives the exemption in his favor, and takes the responsibilities of sea damage upon himself, at least of any damage that would not have happened to them if they had been secured under deck." Where nothing is said in the bill of lading as to the manner of stowing the goods, whether on or under the deck, the legal import of the contract, as well as the usage and understanding of merchants, imposes upon the master the duty of putting them under deck, unless otherwise stipulated. Creery v. Holly, 14 Wend. 26. See also The Rebecca, Ware, 188; Stinson v. Wyman, Daveis, 172; The Sch. Reeside, 2 Sumner, 567; Waring v. Morse, 7 Ala. 343; Dorsey v. Smith, 4 La. 211; Sayward v. Stevens, 3 Gray, 97; Gardner v. Smallwood, 2 Hayw. N. C. 349. If the stowage upon deck did not occasion the loss, the owner of the ship will be no more liable for damage to that part of the cargo than to the rest. Gardner v. Smallwood, 2 Hayw. N. C. 349.

The ship's boat, being a necessary part of the ship's furniture, and being cut away for the general benefit, is properly brought into general average. Lenox v. United Ins. Co. 3 Johns. Cas. 178.

* When boats are obliged to be cut away from the ring-bolts to which they are fastened upon deck, and thrown overboard, it cannot be doubted that their value is to be allowed for in general average. But if, by negligence, they were left outside the vessel, or hung to the davits over the ship's stern, the room appro

this question must be determined by the custom. There is no such rule here as in respect to the deck-load. It seems to be to

a great extent left to the discretion of the master. Some insurers refuse to pay for the loss of a boat thus placed, believing it an unsafe practice, and being disposed to induce more caution. Others pay for it; for, while the boat is certainly safer on deck, it can hardly be said that this degree of caution is positively and peremptorily required of the master. There are certainly vessels, as whaling ships, for example, which always do and perhaps must carry boats on the stern or elsewhere outside the vessel. Men-ofwar, perhaps, always do, and very large merchant ships which require many boats usually carry some of them so. It is said by Emerigon that, in the commerce of the Mediterranean, boats so carried and lost were paid for, because if they were so carried it was easier for the crew to escape if the vessel were seized by corsairs.1 And it may obviously be convenient to carry a boat where it may readily be dropped into the water to save life or property. From considerations of this kind, perhaps, the Supreme Court of Massachusetts decided that, where underwriters refused to pay for a boat so lost, the burden of proof was on them to show that she was improperly carried in that way.2

SECTION IV.

THE LOSS MUST NOT BE CAUSED BY A MERE PERIL OF THE SEA.

That the loss must be voluntary to found a claim for contribution is certain, and we have seen that a voluntary exposure to peril which might have been avoided, if by this peril the thing so exposed is lost, creates a claim for contribution. But it is sometimes very difficult to determine whether such an exposure was one of the common risks of navigation, or a voluntary sacrifice. For example, a vessel is in danger of wreck upon a lee shore, or capture by an enemy. She hoists all sails and takes the risk

priated for them on deck being filled with goods, it is proper that no compensation should take place. Benecke on Ins. 187.

1 1 Emerigon, ch. 12, § 41.

2 Hall v. Ocean Ins. Co. 21 Pick. 472.

of their loss to avoid the greater peril; the sails and spars are blown away, but not until she has gained such a distance as to en-. able her to escape; are the sails and spars thus lost to be contributed for? Authorities of great weight say they are, and this is perhaps the general rule on the continent of Europe.2 But it is a little difficult to bring the case within the principles of general average. The sails and spars are provided for this very purpose, and should be adequate to this necessity. If they are weak from age or original imperfection, this is the fault or misfortune of the ship. It is, however, always possible that sails, spars, and cordage may be entirely seaworthy, and yet there may be occasions for exposing them to a pressure far beyond what they are calculated to sustain; and if they are lost, and the ship and cargo saved thereby, it may well be asked, why should not the cargo contribute?

As another instance of a voluntary sacrifice, goods being a part of the cargo are sometimes given to pirates or captors by way of ransom, and to obtain liberation of the ship and the residue of the cargo. They are as much sacrificed for the general safety as though they were jettisoned. But if they are forcibly taken by

1 The damage occasioned to the ship and tackle by standing out to sea with a press of sail in tempestuous weather, the press of sail being necessary in order to avoid an impending peril of being driven on shore and stranded, is not the subject of general average. Power v. Whitmore, 4 M. & S. 141. All ordinary losses and damage sustained by the ship, happening immediately from the storm or perils of the sea, must be borne by the ship-owners. But all those articles which were made use of by the master and crew upon the particular emergency, and out of the usual course, for the benefit of the whole concern, and the other expenses incurred, must be paid proportionably as general average. Birkley v. Presgrave, 1 East, 220. See also Covington v. Roberts, 5 Bos. & P. 378; 2 Phil. on Ins. 80, 82; Benecke on Ins. 187; 1 Mag. 345, Case 27; Shiff v. La. State Ins. Co. 18 Mart. La. 629. Valin, Ord. de la Mar. tit. du Jet. art. 1, p. 189; Boulay Paty, Com. de Droit, Com. Mar. tit. 12, § 2, p. 446; Prussian Ord. § 1824; Emerigon, ch. 12, § 41, p. 622.

3 Where a ship, hired and loaded by a neutral, was captured on suspicion of carrying enemies' property, and libelled as a prize, and a compromise was effected by the hirers giving the captors a bill of exchange, indorsed by the master of the vessel, it was held that the ship-owners were liable to the hirer, on payment of the bill, as for an average on the vessel and cargo at the time and place of incurring the expense. Douglas v. Moody, 9 Mass. 548. Where the supercargo of a ship, captured and libelled as prize, made a reasonable compromise with the captors, giving up a part of the property and retaining the remainder, it was holden that the underwriters on the cargo were bound by such compromise.

the captors, the entire absence of voluntariness prevents any claim for contribution. So if money or goods are jettisoned to prevent the enemy from obtaining them; here the sacrifice is voluntary,

Welles v. Gray, 10 Mass. 42. Whatever a master may have agreed to pay for the ransom of his ship and cargo to any privateer or pirate, when taken, constitutes a general or gross average. 1 Mag. on Ins. 64. Where the master made a compromise with the captors, abandoning the ship and cargo to them, and being paid one fourth of their value, it was held to be binding upon the insurers, the court affirming that there was no ground for a distinction between a composition by which the subject, or a portion of it, should be specifically restored, and an equivalent given for the subject itself. Clarkson v. Phoenix Ins. Co. 9 Johns. 1. Ransom to a public enemy is prohibited in England by statute. 22 Geo. 3, c. 35; 35 Geo. 3, c. 66, s. 37-39; 43 Geo. 3, c. 72, s. 16, 17; 45 Geo. 3, c. 72, s. 16. In McMasters v. Shoolbred, 1 Esp. 237, the ship was taken by a French frigate and carried into Charlestown, N. A., and there sold upon the authority of the French consul. The plaintiff, in the latter case, contended that the ship having been captured, and sold by the captors, after being a month in their possession, was a total loss, for which he was entitled to recover. Lord Kenyon held that it

was impossible to make this more than an average loss; that it had been decided that if a ship had been sunk and weighed up again, if it was restored to the owners, they had only a right to go for an average loss, and that such also was the case of ransoms; that the owners had therefore a right to recover only so much as was the amount of the injury their property had sustained, which was an average loss.

Lord Kenyon, in Havelock v. Rockwood, 8 T. R. 268, speaks of the purpose of the laws against ransom. He says: "I think it an important observation, made by the defendants' counsel, that, in order to procure a legal sentence of condemnation in an enemy's port, the ship must have traversed the high sea where there was a chance of a recapture by our own cruisers, in which case the owner might have had his ship again on paying salvage. These ransom acts must be considered as remedial laws; and in the construction of such acts, it is the rule to extend the remedy so as to meet the mischief, and I think that the legislature intended, in passing these acts, to prevent such a transaction as the present taking place, because it would take away the chance of a recapture." The captain's being a part owner will not render a compromise, made bonâ fide, and for the best interest of all concerned, less binding upon all parties, his acts being considered as done in his character of agent of all concerned. Waddell v. Col. Ins. Co. 10 Johns. 61.

1 Nesbitt v. Lushington, 4 T. R. 783; Hicks v. Palington, F. Moore, 297; Dig. 14, 2, 2, 3; 1 Mag. on Ins. 64; Beawes, Lex Mercatoria, p. 149, tit. Gen. Av. ; Sheppard v. Wright, Show. P. C. 18.

If after such a seizure the vessel is stranded, and part of the cargo taken by the captors at their own price, the loss cannot be recovered as for a general average; but for such part as in consequence of the stranding is damaged and thrown overboard, the insured may recover on a count stating the loss to be by stranding. Nesbitt v. Lushington, 4 T. R. 783.

but not intended for the benefit of other property, and consequently it is not a general average loss.1

Salvage not only where paid to recaptors, but in other cases, being for the benefit of all persons concerned in ship, cargo, and freight, falls within the rule of general average.2

1 Butler v. Wildman, 3 B. & Ald. 398.

Spafford v. Dodge, 14 Mass. 66; Sansom v. Ball, 4 Dall. 459. The principle of allowing a general average contribution for the expenses of salvage is not confined to cases of recapture. Where a vessel was stranded and lost, except a few materials, but the cargo was saved, it was held that the expenses of salvage were general average, and that the insurers on the cargo were bound to pay their proportion of such average. Heyliger v. New York Ins. Co. 11 Johns. 85. In Briggs v. Merchants Ass. Co. 13 Q. B. 167, a vessel, The Joseph Alexander, with cargo on board, abandoned by her crew at sea, was brought into harbor by salvors. The plaintiff, who was owner of the ship, applied to the Court of Admiralty, and obtained possession of the ship and cargo on entering into recognizance as a security for the whole salvage; and he effected an insurance intended to cover the proportion of the salvage he might have to pay under the recognizance. In the policy the subject-matter of insurance was described as average expenses per Joseph Alexander." The vessel then sailed, and was totally lost with the cargo on board. The plaintiff was obliged to pay the amount of his recognizance, and brought this action against his insurers. It was held that the cargo was liable to contribute a ratable portion of the salvage, and that the plaintiff, who had become liable to pay the whole salvage, had a lien on the cargo for that ratable portion, and had consequently an insurable interest in the cargo.

66

In Peters v. Warren Ins. Co. 1 Story, 463, 468, Mr. Justice Story makes a distinction between salvage and general average as follows: "General average is commonly understood to arise from some voluntary act done, or sacrifice or expense incurred, for the benefit of all concerned in the voyage or adventure; and then it is apportioned upon all the interests which partake of the benefit. But the mere fact that an apportionment is made of a loss between the different parties in interest, if the loss itself does not arise from some act done, or sacrifice, or expense voluntarily incurred, for the common benefit, does not make it necessarily a case of general average by our law. Salvage is properly a charge apportionable upon all the interests and property at risk in the voyage, which derive any benefit therefrom. But, although it is often in the nature of a general average, it is far from being universally true that in the sense of our law, all salvage charges are to be deemed a general average. On the contrary, these charges are sometimes a simple average, or partial loss. We must, therefore, look to the particular circumstances of the case to ascertain whether it be the one or the other."