repaired and reladen, returned home in safety, and the owners claimed from the freighter a payment in the nature of general average towards the expense of the repairs, the maintenance of the crew, and other charges connected with the repairs. But the Court, considering the import of several clauses of the charter-party to be, that the owners should keep the ship in repair during the whole voyage at their own expense, and being also of opinion that the Baily on Average, pp. 28, 119. In England this doctrine leans upon Mr. Arnould's acceptance of it. The opinions of men of business not caring to distinguish accurately between the law of one country and the law of another, the judgment of Lord Elleuborough, in Plummer v. Wildman, the decisions in conformity with that judgment of the courts of the United States, the practice of the French Amirautés under the empire of the Ordinance, and of some of the French tribunals in our time, (see Rogron Code de Commerce, art. 403, Lemonnier, Polices d'Assurance Maritime, vol. 2, 113), and the text of the primeval Rhodian Code, Pardessus Collection de lois Maritimes, cap. 7, tit. x, and note, may be vouched in its favor; but it is not reconcileable with the principle of that code, as modified by the equity of the Roman Lawgiver. Against it, the conclusions of Boulay Paty, Cours de Droit Commercial Maritime, vol. 4, p. 458; Pardessus, Cours de Droit Commercial, Nos. 739, 740; Locré Esprit du Code de Commerce, Liv. 2, Tit. Des Avaries, Art. 400; Lemonnier, Polices d'Assurance Maritime, vol. 2, p 108, Bédarride, Commentaire du Code de Commerce (Maritime) No. 1676, and Dubernad, the learned translator and annotator of Benecke, vol. 1, p. 607, are clear and unhesitating. All these writers hold that expenses, to be the subject of general average, must be the result of acts voluntarily done, or resolutions voluntarily taken for the common safety, in time of danger, and incurred to repair damage, or to meet liability, of which the mind and agency of man have been the realizing cause. Casaregis, consulted on the question, whether the extraordinary expenses of a ship, which, having contracted a suspicion of infection by anchoring in the harbour of Marseilles during the prevalence of the plague there, had, on that account, been denied admittance to the ports of Spain, and which, after wandering some time about the Mediterranean, finally, in pursuance of a resolution to submit to the cost and delay of a quarantine, went into the port of Toulon, and was there, at a great sacrifice of time and money, detained,—had been rightly decided not to be the subject of general average contribution; among other answers, all of them pertinent to this question, gives the following one:-"Minusque altera valet objectio quæ inititur cuidam asserto consilio vulgo germinamento in navi habito, cum ministeriis et vectoribus, ex quo prætendit ipse navarchus, fuisse per omnes deliberatum, oras Hispanicas deserendas et renavigandam fore ut alibi invenire posset portum seu locum, in quo ad purgationem vulgò quarantina reciperetur et per consequens quod ob talem deliberationem communiter in navi captam, evugatio huc illuc per mare, et demum diuturna permanentia in portu Telonensi non merè fatalitati, sed voluntati et electioni quoque navis magistri, tribuenda sit. Huic enim objectioni dupliciter respondetur; primò consilium hujusmodi operari tum demum duntaxat, cum nullum adhuc navi damnum evenerit, quia semper deliberatio aliquid damnum aut noxium navi inferendi, co tendere debet, ut ravis et merces ab imminente vel majore damno aut periculo liberaretur. Verum cum consilium capitur postquàm casus fortuitus aut damnum evenit, ut in specie nostrá factum est, postquam scilicet, jam suspicione pestis notata erat navis et repulsa ab oris Hispanicis, adeòque desperata jam omni ad portus admissione, errare coacta, et in mari degere aut ad Provinciæ infectos peste portus appellere ibique consistere; non est consilium illud ullatenus spectandum, imo irridendum et ineptum, quia consilium capere de eo quod post casum fortuitum fieri debet ex necessitate, non est agere per consilium et electionem, sed consilium in necessitate fingere et simulare, quemadmodum sapienter advertit Targa, quâ propter post contigentiam alicujus sinistri non consilium sed vulgare intrare debet dicterium, salvat qui salvat-materna lingua' chi salva salva, chi perde perde." Disc. 121, No. 17. Upon the whole, it is impossible, consistently with the opinion of Lord Tenterden, and with the doctrine of all the writers on Maritime Law, whose opinions have not been warped by the exceptional legislation or practice of the countries in which they have written, to recognise a rule respecting ship's expenses more comprehensive than the following one : "Expenses voluntarily and successfully incurred, or the necessary consequences of resolutions voluntarily and successfully taken, by a person in charge of a sea adventure, for the safety of life, ship, and cargo, under the pressure of a danger of total loss or destruction imminent and common to them, give, the ship being saved, a claim to general average contribution." But see Kemp v. Halliday, post, p. 634. N N expressions used in another clause tended to show that the defendant was to be liable to general average in the case of jettison alone, held upon the construction of this charter-party, that the plaintiff was not entitled to recover anything for the expenses thus incurred at the Cape (a). 4. Of Goods sold for the Necessities of Ship and Cargo. We have seen, in a former part of this work, that a master may, under certain circumstances, borrow money on the security of his ship, or of its cargo; and that, if his vessel be disabled by the perils of the sea from carrying her cargo to its destination, he may, if he thinks proper, hire another vessel for that purpose. But supposing him to be unable to raise money on bottomry, or by hypothecation of the cargo, and that no other vessel can be obtained, he is at liberty to sell part of the goods entrusted to him, to enable him, by repairing his ship, to carry the remainder to their destination. Goods thus sacrificed for the benefit of the owners of the rest of the cargo seem to have been considered by Lord Stowell, in the case of the Gratitudine, and have been considered in other cases, to be the proper subject of a general average (b). "The sale," said Mr. Justice Story, "of part of the cargo by the master for the necessities of the ship, is in the nature of a compulsive loan for the benefit of all concerned, and to enable the ship to prosecute her voyage; it bears a considerable resemblance to the case of a jettison, for the owner is deprived of his property for the common good, and to him it must be immateriał whether the loss be a sacrifice at sea or on shore (c). This opinion is consistent with the doctrine which, on the authority of the judgment of Lord Ellenborough, in Plummer v. Wildman (d), dispenses with the ingredients of imminent danger and voluntary sacrifice for its aversion, in a claim for general average contribution, to an outlay for the benefit of all concerned. It has also some support from what fell from Lord Ellenborough in the following case: A ship having met with tempestuous weather on her voyage from Hull to St. Petersburgh, was obliged to put into Copenhagen to unload and repair; the expenses of which repair, as well as the Sound dues, were paid by the owner's agent at Copenhagen. It being impossible to negotiate bills on England, for the purpose of repaying to the agent the sums he had disbursed for the ship's use, the agent caused the captain to be arrested, by process from the Maritime Court of Justice at Copenhagen. In this situation, the captain, to procure his liberation and to prosecute his voyage, sold a portion of the cargo, the proprietor of which brought an action against another shipper for contribution. "Had the ship," said Lord Ellenborough, "been seized for non-payment of the Sound dues, I should have (a) Jackson and another v. Charnock, 8 Term Rep. in K. B. 209. (b) 3 Rob. Ad. Rep. 255. nung, 6 Rob. Ad. Rep. 383. stancia, 2 W. Rob. Ad. Rep. 487. The Hoff- Benecke, 273; Stevens, p. 15; and Arnould on Insurance, vol. 2, p. 933, 2nd ed. (c) 3 Mason's Rep. (American) 255; Kent's Com. vol. 3, p. 342, (ed. 1844.) (d) Ante, p. 531. thought that the sale of a part of the cargo to pay them, in the absence of all other means to raise money for that purpose, might have been the foundation of a claim for general average. But these duties had been paid by the ship's agent, and the money so paid merely constituted a private debt due to him. I do not think that any part of the plaintiff's goods was sacrificed for the safety of the ship and the residue of the cargo, in such a manner as to give them a right to a contribution from the other shippers of goods on board. Their proper remedy is against the owner of the ship" (e). The last sentence of this judgment must, however, be considered as the correct expression of the law of England on this point. If, under circumstances of distress and danger, threatening destruction to ship and cargo, assistance could only be obtained by a sale or transfer of part of the cargo to those in a condition to give assistance, such a transaction, if at a sacrifice, might have upon it the character of a general average, but the sale or hypothecation of cargo by the master for the purpose of prosecuting the voyage, he having no other means of raising money, is a sale by him, as agent of his owners in charge for them of the cargo, for their benefit, they being accountable for the proceeds of the sale to the owner of the cargo sold, as for money lent to them, to enable them to perform their contract (ƒ). 5. Of the Expense of Wages and Maintenance of Crew during the Detention of a Ship by Order of a Sovereign Power. With respect also to the wages and maintenance of the crew during the detention of a ship by the orders of a sovereign power, contradictory opinions are to be found in the works of writers on this subject (g). Some authors have taken a distinction between the case of an embargo in the lading port, and the arrest and detention of a ship during the course of the voyage. The French ordinance provides for the latter case, by declaring, that if the ship be hired by the month, the charges shall be reputed general average; but if hired for the voyage, the owners alone shall bear them (h). The reason of this regulation is not easily discernible (i), and it is in express contradiction to the spirit of another article of the same ordinance on the subject of freight (k). In the case of Da Costa v. Newnham (1), Mr. Justice Buller, speaking of this expense of wages and provisions during the detention of a ship by embargo, says, "The Court has said that these charges shall fall upon the owners only, and the freight must bear them." And this case does not seem to fall within the principle of the Rhodian law, because here the delay does not proceed from the act of the master or persons belonging to the ship, nor is it for the general benefit. (e) Dobson v. Wilson, 3 Campb. 480. (f) Powell v. Gudgeon, 5 M. & S. 431. Richardson v. Nourse, 3 B. and Ald. 237. Benson v. Duncan, 1 Exch. 555, 3 Exch. 644; Hallett v. Wigram, 9 C. B. 580. (g) Emerigon, tom. 1, p. 631. Beawes, 165. (h) Liv. 3 tit. 7, Des Avaries, art. 7. Code de Com. art. 400, num. 6, and 403, num. 4. (i) But see Pothier, Charte-partie, num. 85; Emerigon, tom. 1, p 539. (k) Liv. 3, tit. 3, Du Fret, art. 16. 6. Of the Expense of Wages and Maintenance of the Crew while the Ship is waiting for Convoy. For the additional expense of the wages and maintenance of the crew, incurred while a ship has been waiting for convoy, general contribution has sometimes been claimed; and three decisions of the different courts in Holland on this subject are related by Bynkershoek (k), which seem worthy of notice in this place. In the first case, the master of a general ship, which was armed, and had letters of marque, and was bound to several Italian ports, during a war between the Dutch and French, gave public notice of his intention to receive goods, and to sail for those ports without the company of other ships. Having received a cargo, he set sail under convoy of a ship of war destined for Portsmouth, entered with her the harbour of that place, and there waited a whole year for another convoy, under which he sailed to Cadiz; and there waited a second year for a third convoy, under which he sailed to Italy, and delivered his cargo there. Under these circumstances, the master sued the merchant for general average, and obtained a decree in his favour, which was confirmed by one Court of Appeal, reversed by a second, and at last finally affirmed by the senate, of which the learned author was then a member, against his opinion, and against the general principles of law on this subject, and against the particular engagement made by the master on this occasion. This judgment appears to have been disapproved of in Holland; for, in another case, which happened soon afterwards, where five Dutch vessels coming from Surinam, and learning on their voyage that a war had broken out between the Dutch and French, put into Plymouth, and there waited for convoywhich case also went through all the same tribunals-the senate decreed against the claim of contribution. A third case happened soon afterwards, in which the same four courts successively decreed in favour of the claim (). But of this the circumstances were very different from the two former, and such as seem to warrant the judgments pronounced in it. It was the case of a ship freighted from Amsterdam to Cadiz, with a stipulation to sail with convoy either to that place or as far as Lisbon. The ship accordingly sailed under convoy of a man-of-war, in company with several other vessels, and when she came near Lisbon, fell in with a fleet of privateers, by which some of the other vessels were captured, and the ship in question put into Lisbon, in obedience to a signal from the man-of-war, and there waited six months before she could safely proceed to Cadiz, (k) Bynkershoek, Quæstiones Juris Privati, lib. 4, c. 25. (1) For the sake of those who complain of delay in the administration of justice in this country, it may be proper to mention, that in the last of these three foreign cases, a period of nearly seven years elapsed between the first and the last sentence; in the second, a period of nearly ten years; and in the first, of almost sixteen years. In this case it is to be observed, that the master put into port to avoid an extraordinary and impending peril, and not merely as a matter of general caution to avoid the ordinary dangers always accompanying a state of warfare. And the expense thus incurred appears perfectly analogous to the cases of jettison, and to fall within the principle of the Rhodian law; for in this case, as the learned author observes, it is clear that there was a present and impending peril, and it is clear also that the voyage was delayed, not by any accident, but by design, in order to avoid the peril. 7. Of the Expense of Healing Mariners wounded in Defence The ordinance of the Hanse Towns also mentions as an object of general average the expense of healing mariners wounded in the defence of the ship against the attack of pirates (m): I have already mentioned the provisions made by the legislature of this country for persons of this description (n). On the expense of repairing the injury done to a ship during a combat, foreign writers differ in opinion (o). In "The Guidon," an injury done to the cargo by the shot of cannon is said to be a charge upon the merchant only (p). In England, it has been decided that neither the damage to a ship, nor the ammunition expended, nor the expense of healing sailors wounded in an action with an enemy, is an item of general average. The latter item, however, is made so by the Code de Commerce (q). 8. Of Loss by Collision. By the law of most of the continental nations of Europe, the injury done by one ship to another, or to its cargo, without fault in the persons belonging to either ship, is to be equally borne by the owners of the two vessels (r), and this doctrine is advanced by many foreign writers; it therefore becomes necessary to observe here that by the laws of England, in the case of damage happening in this manner either to ship or cargo, by mere misfortune, and without fault in any one of the proprietors of the ship and cargo injured, must bear their own loss (s). I have already mentioned that such a mis |