We see no sufficient reason for saying, with Mr. Benecke1 that freight advanced by the shipper should be included in the contributory value of his goods, when the adjustment is made at the port of departure. It is only an unusual stipulation as to the time of the payment of freight, and we know not why it should affect the rights or obligations of the parties as to contribution, especially where the freight is to be recovered back, if not subsequently earned, as must usually be the case.2

In one American case there seems to be an exception to the rule that goods are not liable to contribution unless they are at risk when the sacrifice is made. The peculiar circumstances of the case may, perhaps, justify the decision. We cannot doubt, however, that the rule itself is, very nearly at least, universal.

occurred at the trial in assessing the damages, supposing the plaintiff entitled to recover, respects more particularly the hire and freight. The same sum is freight as connected with the cargo, and hire as money due to the defendants. If the value of the cargo is to be increased by adding to it this sum as freight saved by its arrival at the place of destination, and its increased value in the market there, there seems to be an equal reason for adding it as hire to the value of the vessel; because the hire becomes due to the owners of the vessel in consequence of her arrival. It may be said that the hire is subject to great deductions for wages and provisions, and is not a net gain or acquisition to the defendants. But the addition of a freight to the value of the cargo may be liable to similar objections. And it seems, upon the whole, to be most reasonable, and most consonant to the rules of contribution as observed in English decisions, to estimate the vessel and cargo at their value in the place and at the time where and when the expense was incurred, which is to be adjusted by the respective owners according to their average proportions."

1 Stevens and Benecke on Av. (Phil. ed.) 257.

2 In Winter v. Haldiman, 2 B. & Ad. 649, it was held that even such an advance did not constitute a part of the amount of insurable interest in the adjustment of a total loss. 2 Phil. on Ins. § 1404.

3 Bevan v. Bank of the United States, 4 Whart. 301. In this case a quantity of specie, the property of the defendants, was shipped, together with other goods, on a voyage from New Orleans to Philadelphia. The vessel became ice-bound in Delaware Bay, and was in imminent danger of being wrecked. The specie was taken out, and conveyed by land to Philadelphia, where it was delivered to the defendants on payment of freight. Eight weeks afterwards the vessel arrived in safety with the remainder of her cargo, which had been in whole or in part discharged into lighters, and afterwards reshipped. A number of additional charges had also been incurred in the mean time for the safety of the ship and cargo. It was held that the defendants were bound to pay their proportion of these expenses. The grounds of this decision appear from the following extracts

SECTION XX.

OF THE FORCE AND EFFECT OF AN ADJUSTMENT.

We cannot doubt that the general rule is, in this country, that an adjustment made in good faith, and a full knowledge of all the material facts of the case, is binding upon the parties. It may be, however, doubted whether it is not otherwise in England.1 We are not, however, satisfied by the cases to which Mr. Arnould from the opinion of the court: "Suppose, for example, that a vessel, with a cargo of the same kind of goods throughout on board, belonging to twenty different owners, each owning an equal quantity, is run on shore within eight or nine miles of the port of destination, for the purpose of saving her and her cargo from an impending danger, when it becomes requisite to unlade the vessel, and to convey the cargo thence by wagons to the place of delivery, in doing of which two months are consumed, it is obvious that, according to the principle contended for on behalf of the defendants, the owner whose goods are first taken out of the vessel and conveyed immediately to him will have comparatively but little of the whole expense to pay, whereas he who receives his goods last will have perhaps more than twenty times as much to pay as the first. The charges being made general average as to the first who receives his goods down to the time of their being delivered to him, the last has to pay one twentieth part of these charges, and upon the same principle one nineteenth of the expenses attending the saving and delivery of the goods to the second, and so on till his own turn comes, when he has to pay all the expenses of saving his own portion of the cargo. . . . . This rule would subject those whose goods are saved and delivered last to the payment of a portion of the expenses incurred in saving those of the first, without requiring the first to pay any part of the expenses incurred in saving the goods of the last, but leaving them to pay the whole of it themselves. . . . . The property of the defendants and that of the plaintiffs formed, as it were, a common stock of a sea venture held by them in their several proportions as partners, and all were alike exposed to the same common danger from which the stock belonging to the defendants was saved, and a proportionable part of the expense incurred by saving it paid by the plaintiffs; and why shall the latter not receive from the former a proportionable part of the expense incurred in saving their portion of the stock from the same common danger? Natural justice seems to require that they should." Benecke maintains the same principle as to goods shipped into barges for the purpose of lightening and saving the vessel and the remaining cargo, but adds that, as to goods taken from the vessel for the convenience and at the peril of their owners, all connection between them and the vessel and remaining cargo ceases from the moment of the unloading, and a subsequent general average falls entirely upon the vessel, the goods remaining on board, and the freight for the same. Benecke, Pr. of Indem. 306, 307.

1 Shepherd v. Chewter, 1 Camp. 274, 276.

refers, or any others that we have been able to find, that an agreed adjustment in England is entirely devoid of final authority. We believe that the interests of commerce, and the purpose and principles of the law of insurance, require that such an adjustment should be held to be conclusive against all parties, with only the exceptions above stated, of fraud or mistake.

It seldom happens that an adjustment of general average does not include items of partial loss, because the adjustment covers the whole loss. Of course the adjuster will carefully discriminate these, and apportion them upon the interest or interests to which they belong. The necessity and the custom of doing this has probably helped to make the phrase " particular average" synonymous or nearly so, in the law of insurance, with "partial loss."

We have already seen that expenses may be incurred for the benefit of one interest only, and should then be charged to that interest; or for the benefit of more than one, and should be charged accordingly. So they may be incurred for the benefit of all the interests, and will then be chargeable to all, and will be distributable among them all in the same manner, or in the same proportions, as if they were general average expenses. Whether the adjuster called them in this case general average charges or not, would be unimportant, so far as the owners and shippers were concerned. But it might be important for the insurers, as the policy might make them liable only for general average charges, or might exclude that liability. It would be giving quite too much force to an adjustment to say that the name given to these charges by an adjuster could affect the rights or obligations of the insurers or insured, for these must depend upon the actual character of the charges.

SECTION XXI.

OF A FOREIGN ADJUSTMENT.

The proper place for the making of an adjustment is the home port, or the port of final destination.1 It is, however, obvious that there may be good reasons for making the adjustment at another port. An owner, for example, of cargo lost by jettison

1 Stevens & Benecke on Av. (Phil. ed.) 268; Simonds v. White, 2 B. & C. 805, 811, 4 D. & R. 375, 385; Thornton v. U. S. Ins. Co. 3 Fairf. 150, 153.

has at once a lien on all the contributory interests and property for his indemnity. If the ship now makes a port at which it delivers a part of the contributory cargo, and then goes to another port to deliver another part, and the shipper having a claim for contribution is obliged to delay adjusting his claim until the ship reaches her port of final destination, he may lose thereby all power of enforcing this claim, or recovering his indemnity. There would be no remedy for this, excepting to make at an earlier port the adjustment as to the parties whose goods were deliverable at that port. It would, however, be very difficult to make a partial adjustment of this kind, and repeat it as often as it is necessary, and then at the port of final destination make a final adjustment. Hence it is a perfectly well-established rule of the law merchant, that a foreign adjustment, made at any port at which it ought for sufficient reason to be made, is binding upon all the parties to it. This indeed should be regarded as in one sense a port of destination, for it is so for the goods which are to be delivered there.

The practical rule may be stated thus: the adjustment may be delayed as long as all the contributory interests continue together, and should be delayed until the vessel reaches her port of final destination, if they are to continue together so long. But if these interests are to be separated, then the adjustment should be made at the place where the separation first takes place.

We repeat that we consider the rule well established, that an adjustment made at such a port is binding on all the parties; although there are cases, both in England and in this country, which deny its obligation. In our notes we exhibit the authorities on both sides of this question.*

Strong v. N. Y. Ins. Co. 11 Johns. 323; Sherwood v. Ruggles, 2 Sandf. 55; Chamberlain v. Reed, 13 Me. 357; U. S. v. Wilder, 3 Sumner, 308.

2 For this purpose the different States of this country are considered as foreign to each other. Lewis v. Williams, 1 Hall, 430.

3 In Loring v. Neptune Ins. Co. 20 Pick. 411, 413, Shaw, C. J., alludes incidentally to this rule as follows: "The general average in the present case was made up and adjusted at Hamburg, the port of destination, at which the several interests liable to contribute were necessarily to be separated from each other. Hamburg, therefore, was the proper place for the adjustment and payment of this general average.”

4

* In Power v. Whitmore, 4 M. & S. 141, an adjustment was made at Lisbon, and wages and provisions were included, which was contrary to the law of England. It was held that the contract was to be construed according to the laws

Whatever uncertainty attends this question arises from still another rule, which is, that, wherever an adjustment be made, it

of England, unless the parties were understood as having contracted on the footing of a different known general usage in the country where the adventure was to terminate. There being no evidence of such usage except the decree of the court, the plaintiff was nonsuited. In Lenox v. United Ins. Co. 3 Johns. Cas. 178, a cargo of pipe staves was insured. Some of them were carried in the hold, and others on deck, with the consent of the insurers. The part on deck was jettisoned, and, according to an adjustment made at Lisbon, the cargo in the hold was charged with its proportion of the loss. It was held that the underwriters were not liable for a general average loss; for, although it was decided differently at Lisbon, the port of destination, and the law there was stated to be otherwise, the parties to the contract were to be considered as having in view the law of the State in which it was made, and were to be governed by it. In Shiff v. Louisiana State Ins. Co. 18 Mart. La. 629, where a loss by carrying a press of sail to keep off a lee shore was contributed for in general average in Hamburg, it was held that the underwriters were not liable; because, when they agreed to become responsible to the plaintiff for general average, they understood what was known to the laws of their own country as such, - parties always being presumed to contract in relation to their own laws unless the contrary is clearly shown; and that they were not responsible in the instance in question, as by those laws the injury sustained was one of particular average.

In the following cases the rule laid down in the text, that a foreign adjustment is binding upon the parties, is substantiated. Walpole v. Ewer, 1789, Park on Ins. (8th ed.) 898, was an action on a policy of insurance upon a respondentia bond on ship and goods, at and from B. to C. The ship was Danish; and an average loss had been sustained, towards which the plaintiff, as holder of a respondentia bond, had been called upon to contribute. For the amount of this contribution the action was brought against the English underwriters. Lord Kenyon, C. J., said: "By the law of England, a lender upon respondentia is not liable to average losses, but is entitled to receive the whole sum advanced, provided ship and cargo arrive at the port of destination. The plaintiff contends that, as by the law of Denmark such lenders upon respondentia are liable to average, and bound to contribute according to the amount of their interest, the insurer must answer to them. The Danish consul has proved that he received a judgment of the court of Copenhagen, the decretal part of which proves the law of Denmark to be as the plaintiff has stated it. The opinions of several men of eminence in that country have been offered on each side; but I reject them, because the solemn decision of a court of competent jurisdiction is of much greater weight than the opinions of advocates, however eminent, or even than the extrajudicial opinions of the most able judges. It seems as if, in this case, the underwriters were bound by the law of the country to which the contract relates." In Newman v. Cazalet, Park on Ins. 899, the policy on which the action was brought was upon a cargo of fish from Newfoundland to any port of Spain, Portugal, or Italy. The ship met with bad weather, and put into Alicant and Leghorn to re