which has greater power, and is more under command, she is bound always to give way to a vessel with sails, in a case of collision." So, a neglect of due means to check a vessel entering a river or harbour where others lie at anchor, is a fault which creates responsibilty for damages which may ensue. Where the collision arose by vis major, or physical causes exclusively, and without any negligence or fault, open or concealed, the damage must be borne where it falls. The greatest difficulty on the subject, has arisen in the cases in which the collision proceeded evidently from error, neglect, or want of sufficient precaution, but the neglect, or fault, was either inscrutable, or equally imputable to both parties. In this case, of blame existing which is undiscoverable, the marine law, by a rusticum judicium, apportions the loss, as having arisen equally by the fault of both parties. The rule is universally declared by all the foreign ordinances and jurists; and its equity and expediency apply equally where both parties are to blame, and where the fault cannot be detected. The general rule of the maritime law is, to make the ships contribute equally, without regard to their relative value, and Valin considers this to be the shorter, plainer, and better rule. There has been much difference in the codes and authorities in maritime law, whether the cargo, as well as the a The Shannon, 2 Hagg. Adm. Rep. 173. b Neptune 2d, 1 Dods. Adm. Rep. 467. c Dig. 9, 2. Consulat de la Mar. par Boucher, 200-203. Abbott on Shipping, 354. Marshall on Insurance, 493. d Cleirac, Us et Coutumes de la Mar. 68. The Woodrop Sims, 2 Dod. Adm. Rep. 85. e Com. tom. ii 166. The Marine Ordinance of the city of Rotterdam in 1721, declares that the damage resulting from collision of ships shall be borne equally, unless, indeed, the collision happened by design, or any remarkable fault, and then the guilty party must bear the whole loss. Ord. of Rotterdam, sec. 255, 256. The Ordinance of Hamburg of 1731, tit. 8, is to the same effect, though even still narrower in the exception. ship, was to contribute to the loss. Valin contends, that the contribution is only between the ships, and that the cargoes are totally excluded from the benefit, as well as from the burden of contribution in the case of such a disaster. But in Le Neve v. Edinburgh and London Shipping Company, the cargo of the ship that was sunk and lost by the collision, received the benefit of the contribution." (9.) Of general average. The doctrine of general average grows out of the incidents of a mercantile voyage, and the duties which it creates apply equally to the owner of the ship, and of the cargo. General, gross, or extraordinary average, means a contribution made by all parties concerned, towards a loss sustained by some of the parties in interest, for the benefit of all; and it is called general, or gross average, because it falls upon the gross amount of ship, cargo, and freight. By the Rhodian law, as cited in the Pandects, if goods were thrown overboard, in a case of extreme peril, to lighten and save the ship, the loss, being incurred for the common benefit, was to be made good by the contribution of all. The goods must not be swept away by the violence of the waves, a This case was decided in the House of Lords in 1824. See Bell's Com. vol. i. 580-583, who has collected and digested the foreign authorities on the subject. By the English statute of 53 Geo. III. c. 159, ship owners were protected from loss by damage done to other vessels without their fault, beyond their property in the ship, freight, apparel, and furniture. In the case of the Dundee, it was held, that fishing stores of a Greenland ship were liable to contribute in compensation for damage done to another ship by collision, as appurtenances to a ship of that character. The Dundee, 1 Hagg. Adm. Rep. 109. b Dig. 14, 2, 1. This Rhodian law is discussed in the Pandects, by Paulus, Papinian, and other eminent lawyers. It forms the subject of the distinguished commentaries of Peckius and Vinnius, in the treatise ad Rem Nauticam, and of a treatise of Bynkershoeck; and it has received most ample illustrations in the dissertations upon it by numerous other civilians, among whom may be selected Emerigon and Abbott. for then the loss falls entirely upon the merchant or his insurer, but they must be intentionally sacrificed by the mind. and agency of man for the safety of the ship, and the residue of the cargo. The jettison must be made for sufficient cause, and not from groundless timidity. It must be made in a case of extremity, when the ship is in danger of perishing by the fury of a storm, or is labouring upon rocks or shallows, or is closely pursued by pirates or enemies; and then, if the ship, and the residue of the cargo, be saved by means of the sacrifice, nothing can be more reasonable than that the property saved should bear its proportion of the loss. The doctrine of general average is one of those rules of the marine law which is built upon the plainest principles of justice; and it has, accordingly, recommended itself to the notice and adoption of all the commercial nations of the world. The title in the Pandects, De lege Rhodia de Jactu, has been the basis of the ordinances of modern Europe, on the subject of general average; and the doctrine of jettison was transplanted into the Roman law from the institutes of the ancient Rhodians. A jettison is only permitted in cases of extreme necessity; and the foreign ordinances" require, that the officers of the ship, and the supercargo, if on board, should, if practicable, be previously consulted; and if the master, in a case of false alarm, makes a jettison, there is no contribution. A regular jettison, says Emerigon, is that which takes place with order, and without confusion, and is founded on previous deliberation. Consultation is not indispensable previous to the sacrifice. A case of imminent danger will not permit it. But it must appear that the act occasioning the loss was the effect of judgment and will; and there may be a choice of perils when there is no possibility of safety. There must be a certain loss voluntarily incurred for the common benefit, and it a Laws of Oleron, art. 8, of Wisbuy, art. 20, 21. 38. Code de Com is not necessary that the vessel should be exposed to greater danger than she otherwise would have been. To avoid an absolute shipwreck, it may sometimes be necessary to run the vessel ashore in a place which appears to be the least dangerous, and that will form a case of general average. The irregular jettison is valid, for it takes place in the instant of a danger which is imminent and appalling, and when all formality and deliberation would be out of season, or impossible. All acts are precipitate, and commanded by that sense of self-preservation when life is in jeopardy, which is irresistible, and sways every consideration. Such a jettison is a species of shipwreck, and it is called semi-naufragium. The captain must first begin the jettison with things the least necessary, the most weighty, and of least value, and nothing but the greatest extremity would excuse the master who should commence the jettison with money, and other precious parts of the cargo. Before contribution takes place, it must appear that the goods sacrificed were the price of safety to the rest; and if a Sims v. Gurney and Smith, 4 Binney, 513. 1 Emerig. 408. Targa says, that during the sixty years he was a magistrate in the Consulat of the Sea at Genoa, he met with only four or five cases of a regular jettison, and they were suspicious by reason of their very formalities. b Consulat de la Mer. ch. 284. Targa, ch. 58. Casaregis, Disc. 45, n. 28. c Code de Commerce, art. 411. Emerigon, t. i. 609, has beautifully illustrated from Juvenal, the growth and progress of an irregular jettison, and that imminent danger and absorbing terror which justify it. At first the skill of the pilot fails: Nullam prudentia cani Rectoris conferret opem. Catullus becomes restless with terror as the danger presses, and at last he cries Fundite quæ mea sunt— Præcipitare volens pulcherrima.—Juvenal, sat. 12. the ship be lost, notwithstanding the jettison, there will be no ground for contribution." All damage arising immediately from jettison, or other act of necessity, is to be a matter of general average, and, therefore, if, in cutting away a mast, the cargo, by that means, be injured, or if, in throwing over any part of the cargo, other parts of the cargo be injured, the damage goes into general average, because it is to be considered as part of the price of safety to the residue of the property." So, if a ship be injured by a peril of the sea, and be obliged to go into port to refit, the wages and provisions of the crew, during the detention, constitute the subject of general average, according to the decisions in New-York and Massachusetts. Those decisions are supported by the rule as laid down in Beawes, and they are in coincidence with the law and practice of Holland and France. Lord Tenterden, in his treatise on shipping, observed, that the English law books furnished no decision on this point, and he thought it susceptible of a reasonable doubt, though his opinion was evidently against the justice and policy of the charge for contribution. Since he wrote, the question has been decided in the K. B. according to his opinion, and in a case in which he sustained and enforced a contrary opinion in his character of counsel. The result of the decisions in Plummer v. Wildman, and Power v. Whitmore," is, that where the general safety requires a ship to go into port to refit, by reason of some peril, the wages and provisions of the crew during the a Pothier, tit. Avaries, n. 113. b Maggrath v. Church, 1 Caines' Rep. 196. c Walden v. Le Roy, 2 Caines' Rep. 263. 4 Mass. Rep. 548. d Lex Mercat. vol, i. 161. Padelford v. Boardman, e Ricard, négoce d'Amsterdam, p. 280. Emerigon, Trailé des Ass. t. i. 621. f Abbolt on Shipping, part 3, ch. 3, sec. 3. |