of the sea, which is applicable to all who are engaged in maritime commerce (c). They compose the mainspring of a system which is prompted by considerations of common interest, sanctioned by the principles of natural equity, and adapted to promote the security of life and property at sea. The earliest trace of this ancient rule of maritime law is to be found in an extract from the Rhodian law, which was incorporated in the Roman civil law, and has been preserved in the Digest in the following terms:-"The Rhodian law provides that, if for the sake of lightening a ship a jettison of merchandise is made, that which is given for all shall be replaced by the contribution of all" (d). In that maxim, the most characteristic feature o general average is expressed; and, the principle thus attested, having been received and developed within the Roman jurisprudence, passed through that medium into the marine law of Europe. Hence it was that this principle found its way into the common law of England, and became an implied term both in the contract of affreightment and the policy of marine insurance (e).

As we have only to consider general average in its relation to the contract of marine insurance, no more will be necessary in this place than to glance at the outlines and characteristic features of the system.

III-LEADING PRINCIPLES.

The fundamental principle of general average, according to the law of England, was stated by Mr. Justice Lawrence in the following terms:-" All loss which arises in consequence of

extraordinary sacrifices made or expenses incurred, for the preservation of the ship and cargo, comes within general average, and must be borne proportionably by all who are interested" (ƒ).

A loss, in order that it may be brought into general contribution, must be intentional-not the result of mere accident; incurred for the common safety-not one designed to benefit the ship or the cargo alone; extraordinary—not one which is involved in the contract of affreightment; and, the proximate -not the remote, result of the act causing it (g).

A further condition necessary to constitute a general average act is, that it must be judicious. In early times the performance of a general average act was usually preceded by a consultation between the master and the merchants, who frequently accompanied their wares upon the voyage, with respect to the necessity for an extraordinary sacrifice for the common safety, and the best means of attaining that end. Although such a conference has long been discontinued in practice, there is a sense in which it is still held in theory; inasmuch as the master becomes agent for the owner of the cargo, as well as for the shipowner, in times of emergency, with

(f) Birkley v. Presgrave, 1 East,

228.

(g) It is a rule of law, with respect to both general and particular average, that only such losses are admissible as result proximately from the act or peril to which they have to be ascribed; but the rule has a different application to general average from what it has to particular average. In the latter case, the peril and the loss resulting from it stand to one another in the relation of cause and effect; and the maxim causa proxima non remota spectatur determines that only such losses fall within the contract as arise from a peril insured against by direct physical causation. In the case of general average, however, the foundation of the right of recovery is not a peril, but an act; and the quality of a general average act is determined by the motive with which it is performed; viz., whether or not it was designed for the general safety, so that it is a moral act, and

the consequences which proceed from it are moral consequences. The rule, in its application to general average, refers, therefore, not to a physical, but to a moral sequence, and extends to the admission of all those consequences which might have been reasonably expected to result from a general average act, but not to those which could not have been foreseen. In short, the rule causa proxima, &c., is to be applied to general average in the same manner as it is applied in actions of tort, i.e., to provide for the admission only of such consequences of an act as proceed from it in the ordinary and natural cause of events; for, as was said by Thesiger, L.J., in Attwood v. Sellar (4 Asp. Mar. L. C. 286), "the principle which underlies the whole doctrine of general average contribution, is that the loss, immediate and consequential, caused by a sacrifice for the benefit of cargo, ship, and freight, should be borne by all."

authority to bind both parties to concur in the adoption of such measures as are expedient in the common interest.

In inquiring the extent to which the consequences of an act for the benefit of all concerned in a marine adventure are admissible in general average, we must remember that the starting point of a general average act is danger, and that its objective point is safety (h).

For instance, let us take the case of a vessel which has been disabled in a storm putting into a port of refuge, which proceeding may be regarded as a type of general average expenditure, as jettison is taken to be a type of general average sacrifice. In order that the entrance of a vessel into a port of refuge may conform to the conditions of general average, it must have been necessitated by a common danger; and, so long as that danger continues to operate, any expenditure or sacrifice incurred to escape from it is admissible into general average; but, on the attainment of safety, general average, in principle, ceases. After a prolonged controversy, it has been decided by the highest court of appeal, that any expenditure which is incurred after the ship and cargo have been placed in safety must be directly applied to that interest which it was intended to benefit (i).

As motive and not result is the criterion of a general

(h) Two theories have been propounded with respect to the proper object of a general average act. According to one of these, it is the safe completion of the adventure, and, according to the other, it is the attainment of physical safety which is the end in view. In favour of the former theory, which was advocated with much force by Baily in his work on General Average, it is to be observed that it admits of the more comprehensive scheme, and is free from the practical difficulties which occur in the application of a system based upon the doctrine of physical safety. From a theoretical standpoint, then, a general average act should be defined as one external to the contract of affreightment, which, in consequence of a

common danger, cannot judiciously be neglected, and the object of which is the safe arrival of the ship and cargo at the port of destination. Our Courts have, however, decided that it is the attainment of safety, and not the completion of the adventure, which is the terminal point of general average. According to English law, therefore, a general average act is one external to the contract of affreightment, which cannot judiciously be left unperformed, and the object of which is the attainment of the general safety. See Job v. Langton, 6 E. & B. 779; 26 L. J. (Q. B.) 97; Walthew v. Mavrojani, L. R. 5 Ex. 116; and Svendson v. Wallace, L. R. 10 App. Cas. 404.

(i) Svendson v. Wallace, L. R. 10 App. Cas. 404.

average act, success is not necessary to constitute a right of contribution (k).

IV. EXPENSES ALLOWED.

All extraordinary expenditure, incurred in time of peril, for the joint preservation of the ship and cargo, is allowed in general average, on the assumption that the ship was seaworthy at the commencement of the voyage (1). The proceedings which most frequently give rise to expenses of this nature are the following::

1. Putting into a Port of Refuge.—In this event a difference is made in the treatment of the consequent expenditure, according as the putting in is occasioned by accident or sacrifice (m). When a vessel bears up for a port of refuge on account of an accident (n), such as the springing of a leak in heavy weather, the inward expenses, including the charges for towage, pilotage, harbour dues, &c., are allowed in general average, as also the cost of discharging the cargo and conveying

(k) Lowndes on General Average, 3rd ed., p. 16.

(2) Space will not admit of the authorities being given for all the statements made in this and the following sections; but, where specific references are not given, general reference is made to Baily on General Average, Hopkins' Handbook of Average, Lowndes on the Law of General Average, Stevens on Average, and the Customs of Lloyd's, as collected and formulated by the Association of Average Adjusters, where the subject here noticed in outline is treated upon in detail.

(m) This difference follows from the ruling of the Courts in the two recent cases of Attwood v. Sellar (4 Asp. Mar. L. C. 283), and Svendson v. Wallace Bros. (L. R. 10 App. Cas. 404). In the first-mentioned case it was held by the Court of Appeal, affirming the judgment of the Queen's Bench Division, that, where a vessel

puts into a port to repair an injury caused by a general average act, the expenses of warehousing and reloading goods necessarily unloaded, for the purpose of repairing the injury, equally with the cost of discharging them, and the expenses incurred for pilotage and other charges on leaving the port, equally with those incurred for entering it, are the subject of general average. In the last-mentioned case it was held by the House of Lords, affirming the judgment of the Court of Appeal, that, where a vessel puts into a port to repair damage which is of the nature of particular average, and not the subject of general average, the cost of reloading the cargo is not recoverable in general average, but is a par ticular charge on the freight.

(n) Ante, sect. iii. The term "accident," in relation to general average, refers to the operation of a peril excepted in the contract of affreight

ment.

it to a warehouse, whether that operation is performed for the common safety, or to enable the ship to be repaired (o). The warehouse rent on the cargo is a particular charge on that interest. The cost of reloading the cargo, with the port charges incurred in quitting the port of refuge, such as towage, pilotage, &c., constitute a particular charge on the freight.

On the other hand, when the vessel puts into a port of refuge for the purpose of repairing damage which is itself the subject of general average, as, for instance, to replace a mast which has been cut away for the common safety, the entire expenditure incurred in entering and quitting the port of refuge, together with the expenses of discharging, warehousing, and reloading cargo unshipped to effect the repair, is allowed in general average. This rule applies whether the damage which caused the putting in were to the ship or to the cargo, or both to ship and cargo, provided such damage were the result of a general average act.

If a vessel require to make for a port of refuge on account of her original unseaworthiness, the consequent expenditure is not recoverable in general average, but must be borne by the shipowners; and, upon the same principle, the cost of discharging the cargo, on account of damage to it resulting from its own vice propre, or from the fault of the shippers, is chargeable to the owners of the cargo.

When cargo, which has been discharged, is left in lighters, as the more economical course, in place of storing it on shore, and is subsequently reshipped, the practice is to treat the lighter-hire as a substituted charge, the expense being divided between general average, cargo and freight, in proportion to the amounts which would have been chargeable to the respective interests had the more expensive course been adopted.

(0) The practice of adjusters, with respect to the allowance in general average of the cost of discharging the cargo whenever that operation is necessary to remove an impediment to the safe prosecution of the voyage is not entirely supported by legal principle,

according to which, as explained in the last section, the expenditure allowable in general average terminates on the attainment of physical safety; but it is adhered to for the sake of convenience, and in deference to an oldestablished custom.