must be made under the principles, practice, and law which in that place regulate adjustment. Now these may be quite different

pair. The captain, being owner, presented a petition to the commercial court of Pisa to adjust the general average, as he had put in for the general benefit of all concerned. The court, according to its usual course, adjusted the loss by charging the cargo at its full value, but the ship only at one half, and the freight at one third; and they also charged as a part of the general average the seamen's wages and provisions while in port. The defendant, as underwriter, had paid into court as much as would cover the average, if adjusted according to the memorandum in the policy and the law and usage of England. The question was, whether, the plaintiff having been compelled to pay beyond that sum according to the calculation of the sentence of the court of Pisa, it was conclusive upon the defendant, and the plaintiff was entitled to recover his average by the same standard. Mr. Justice Buller said: "On the general law the plaintiff would fail; but in all matters of trade usage is a sacred thing. I do not like these foreign settlements of average which make underwriters liable for more than the standard of English law. But if you are satisfied it has been the usage, upon the evidence given, it ought not to be shaken." It was proved by several brokers that, in repeated instances, they had adjusted averages under similar sentences in the court of Pisa, and that the underwriters, though with reluctance, had always paid them. The plaintiff had a verdict accordingly.

amount.

....

In Strong v. Firem. Ins. Co. 11 Johns. 323, a vessel was moored in the port of Lisbon, and, a violent storm arising, it became necessary, for the preservation of the ship and cargo, to cut away most of her rigging and spars, which damages were made the subject of general average at Lisbon. The point in controversy was whether the defendants were liable to pay the whole amount of the proportion of general average assessed on the cargo according to the adjustment at Lisbon, or only according to the rule adopted in New York. It was held that their liability was determined by the adjustment at Lisbon. The court said: "The general average once being made, and the amount of contribution between the owners of the ship, freight, and cargo ascertained, it appears, at least nothing appears to the contrary, that the underwriters have been held liable for such ... Indeed, it seems to me that this view of the subject would be conclusive to show that a bonâ fide adjustment and payment of a general average ought to be the measure of damages, as between the merchant and insured; otherwise, an insurance would cease to be what it has always been contemplated, a contract of indemnity. In this case it is distinctly admitted that, as it respects the owners of the cargo and the owners of the vessel, the average was correctly stated, and rightfully paid in Lisbon. That this is a loss for which the insurers are liable is not disputed; and there is no principle more firmly established than that they are bound to return the money which the assured has been obliged to advance in consequence of any peril within the policy, provided it be fairly and honestly paid, and does not exceed the amount of the subscription." After commenting upon the cases of Walpole v. Ewer, and Newman v. Cazalet, the court continues: "I cannot doubt that at this day the underwriters in Eng

in different ports. The principal reasons why a foreign adjustment is binding on its owners and shippers may be briefly stated land are uniformly held responsible for the amount fairly paid under a foreign adjustment of an average loss." The following reference, in the same opinion, to the case of Lenox v. United Ins. Co., which had been previously decided in the same court, although not overruling it, shows that it was not considered as a direct authority in support of the doctrine that a foreign adjustment is not binding upon the insurer: "The question there was, whether the plaintiff should recover a partial loss only, or the amount paid on the adjustment of a general average at Lisbon; and it was decided that he should recover a partial loss only, on the ground that, according to our law, the staves on the deck of the vessel thrown overboard in a storm to lighten her could not be brought into a general average. What would have been the effect of this adjustment, if the jettison had, according to the laws of this country, formed a proper item in the making it up, is left undetermined." In a subsequent case in the same State, Depau v. Ocean Ins. Co. 5 Cow. 63, the court decided the question as to the effect of a foreign adjustment in the same way as in Strong v. Firem. Ins. Co., - that case being cited as the authority by which it was guided. In accordance with these decisions was that in Loring v. Neptune Ins. Co. 20 Pick. 411. There Chief Justice Shaw uses the following language upon the point under consideration: “In general it is to be presumed that both the assured and the underwriter are acquainted with the nature of the business in respect to which they contract; that they are acquainted with the customs and usages of that business, and consent to conform to them, unless there be some stipulation to the contrary. It is well known, therefore, to both parties, that the assured may have to pay, in respect to losses insured against, general averages; that these averages may be adjusted abroad; and that the assured will be bound by such adjustment, although in making it conformably to the law and usages of the places where made, both the sum to be contributed and the contributory interests may be estimated upon principles varying from those which prevail at the place where the contract of insurance is made. This question was discussed by Mr. Justice Story in Peters v. Warren Ins. Co. 1 Story, 463, and a strong opinion expressed in favor of the binding effect of a foreign adjustment, though he expressly stated that he did not wish to be understood as deciding the point. He says: "Now, certainly, the weight of authority, both in England and America, is that the items included and the sums apportioned and paid according to the law of a foreign country, as a general average in an adjustment thereof made there, and, a fortiori, if enforced by the public tribunals there, are, quoad the items and the rule of apportionment, conclusive upon and payable by the underwriters here as a general average, although not apportioned in the same manner, and not deemed items of general average by our law. . . . . There is nothing unreasonable in construing the engagement of the underwriters in a policy to be that they will pay whatever the insured in a policy is compelled to pay as a general average, arising from the risks insured against." In Simonds v. White, 2 B. & C. 805, this question arose between a shipper and ship-owner, and it was there decided that a loss by general average was to be

thus: if the cargo is to be separated in a foreign port, the contributory share of the cargo leaving the ship should be paid on the spot to the party entitled to contribution. The adjuster at that place must be bound by the law of that place, and cannot be held to know the law of a distant port. And the ship cannot be delayed until he has time to inquire and ascertain that law. The adjustment covers all the interests at risk, and cannot be gone into aftercalculated between them according to the law of the port of discharge; and in the subsequent case of Dalglish v. Davidson, 5 D. & R. 6, decided upon the authority of Simonds v. White, it was held that the owner of a British ship might avail himself of a statement of average made at the port of delivery in a foreign country, according to the law thereof, so as to charge a British freighter of goods, under a charter made in Britain, with the expenses of wages and provisions for the seamen, incurred during the necessary detention of the ship at an intermediate port, although by the law of England such expenses would not be recoverable as average. The following from the opinion of Chief Justice Abbott, in Simonds v. White, would seem to apply to the underwriter as well as to the shipper. He says: "The shipper of goods tacitly, if not expressly, assents to general average as a known maritime usage, which may, according to the events of the voyage, be either beneficial or disadvantageous to him. And by assenting to general average he must be understood to assent also to its adjustment, and to its adjustment at the usual and proper place; and to all this it seems to us to be only an obvious consequence to add, that he must be understood to consent also to its adjustment according to the usage and law of the place at which the adjustment is to be made." See also Lewis v. Williams, 1 Hall, 430, where the question was between two shippers, and where Mobile was considered, upon a question of average, to be a foreign port in relation to New York, and where an adjustment made at the former place was held to be binding upon shippers at the latter. In giving the reasons for the rule the court said: "The grounds upon which the foreign adjustment is held conclusive are, that it is the duty of the master to cause the adjustment to be made, and to see to the settlement of the averages; and that the parties are compellable to submit to the assessments upon them, that they may be coerced by suit or by the detention of the goods to pay the contributions as settled there; and if the adjustment could be opened at the home port, and a new rule of apportionment be applied, great and manifest injustice must often be done to some of the parties, without any remedy for the wrong done them by the derangement. . . . . In most cases of foreign adjustment the averages are from necessity settled and paid by the parties who are to contribute, without reference to the question of insurance. It would be against the principle and true spirit of the rule to allow the contributory parties who are uninsured to open the adjustment, and to hold it conclusive upon those whose interests are insured and upon their underwriters. There can be no solid ground for the distinction; the adjustment must be equally conclusive upon all the persons and interests actually brought into the settlement of the average."

wards at another place, and reformed throughout (if reformed at all it must be throughout), after a part of the cargo has been left at another place and is out of the reach of the parties. And it may be added that if an owner or shipper loses by the difference in the rules of adjustment in one case, he may gain in another; and this practical rule, like some others of the law merchant, is founded on the average of all the cases, and on the whole does justice.

The two countries of home and of destination may have different systems of law by which this distribution is regulated. If we suppose an adjustment of the loss and distribution made. at a foreign port, and this the port of final destination, it must be certain that the owners of all these interests are bound, in reference to each other, by this adjustment.

Courts of common law, both in England and in this country, now acknowledge the law merchant as a part of the common law; but they are, or at least were, more accustomed to cases which are governed by the common law of the land than to those to which the law of the sea should be applied, and to administer justice in cases of the land, by applying to them a system of law admirably adjusted to that end; and they are sometimes disposed to apply the same system to all contracts, maritime contracts and land contracts alike. It might be well if the common-law courts, in judging maritime contracts, were more influenced by a spirit like that manifested by the Emperor Antonine in the rescript which founded for the civil law the law of general average. He says: "I am the lord of the world, but the law is the lord of the sea"; and then goes on to show that in this case, by the lord of the sea, he means the law of the island of Rhodes, which was only the system of rules and usages practised by all engaged in the commerce of the Mediterranean then, as for many previous ages.1

We should admit that when an adjustment of average comes in question under a policy of insurance, there may be, at least in some cases, reasons which seem to sustain the views taken by the courts which have been least disposed to admit the binding force of a foreign adjustment. But in this country, and at the present time, we think this force may be considered as universally admitted, at least in cases which come directly under the law of shipping.2 1 Digest, 14, 2, 9.

As to the practical rule, we have what we consider the valuable authority of

It must, however, be remembered that this conclusiveness of a foreign adjustment cannot prevent a party interested from availing himself of a defence against a claim for contribution, which goes to the foundation, not merely of the adjustment, but of the whole right or necessity of any adjustment. Thus, where an adjustment was made on the protest and testimony of the master, the owner of goods on board was permitted to show that the loss arose from the want of care and skill of the master himself, and was not therefore a case for general average adjustment.1

SECTION XXII.

OF THE ENFORCEMENT OF THE PAYMENT OF CONTRIBUTORY SHARES.

The owners of the property on which the contribution is properly assessed are liable for it in an action by the party by whom it is receivable.2 The consignee may be the owner of the goods contributing, and then will be liable as owner. He will not, however, be liable merely as consignee. He may refuse to receive the goods from which the contribution is payable. But even if he receives the goods only as consignee, this raises no implied promise on his part to pay the contribution.

The common provisions of the bill of lading under which he claimed and received the goods would not make him liable. If, however, a clause were added that the goods were to be delivered only on payment of contributory charges, as Lord Tenterden sugMr. Dixon, in his handbook of marine insurance and average. On page 162 he says: "I have, as adjuster of averages for one of the principal insurance companies of New York, had an opportunity of examining hundreds of statements in which the column of general average disallowed items which would be admitted by our custom; and, on the other hand, comprehended items which would be disallowed here; and, except in one or two very extreme cases, I have found the average adjusters, by making no readjustment of those items at the home port, practically hold that when a foreign adjustment is rightly settled according to the laws and usages of the foreign port, it is binding, not only as between the parties interested in the adventure, but also as between the assured and the underwriters."

1 Chamberlain v. Reed, 13 Maine, 357.

2 Lenders on bottomry and respondentia are liable to contribution in general average. Chandler v. Garnier, 18 Mart. La. 599. The owner of goods chargable with general average is personally liable for the amount of his contribution,