pilotage is compulsory, and the crew have performed the duties required of them,' the owner and ship are not responsible for the collision if caused by the pilot;2 but it is the duty of the State by which the employment of the pilot was compelled, to indemnify the parties injured.'

In The Minna, Law Rep., 2 Adm. & Ecc. 97, the owners of a wrongdoing ship having, by compulsion of law, a pilot on board, were held not to be exempt, under the 388th section of the Merchant Shipping Act, 1854, from liability for damages, where a neglect of duty on the part of the master conduced to the collision.

2 German General Mercantile Law, Part VIII., § 740. Having a pilot on board is not an exoneration. The Carolus, 2 Curtis' U. S. Circuit Ct. Rep., 69; Denison v. Seymour, 9 Wendell's (New York) Rep., 9.

This qualification is added, as being a reasonable condition to annex to compulsory pilotage.

The expediency of the law of compulsory pilotage, so far as it exempts the owner of the wrong-doing vessel from all liability, was considered and questioned in The Halley, Law Rep., 2 Adm. & Ecc., 3, where the plaintiffs, owners of a foreign vessel, claimed damages for a collision between their vessel and an English ship, in Belgian waters. The defendants, the owners of the English ship, pleaded that, by the Belgian laws, pilotage was compulsory in the place where the collision occurred. It was held, that the plaintiffs were entitled to plead, in reply, that, by the same laws, the owner of the wrong-doing vessel, although compelled to take a pilot on board, continued liable for the damages.

ARTICLE 395. Voluntary stranding.

Jettison.

396. Carrying a press of sail.

397. Port of refuge expenses.

398. Wages and maintenance of crew in port
of refuge.

399. Damage to cargo in discharging

400, 401. Contributory values.

384. A carrier by water may, when in case of extreme peril it is necessary for the physical saiety of the ship or cargo,' throw overboard, or otherwise sacrifice, any or all of the cargo or appurtenances of the ship. Throwing property overboard for such purpose is called jettison.

Lawrence v. Minturn, 17 Howard's U. S. Sup. Ct. Rep., 100.

This and several of the following Articles are, substantially. from the Civil Code, reported for New York, pp. 336, 337.

"To constitute a case of general average," says Judge MARVIN, (Report on Int. Gen. Ave.,) "three things must concur: 1st. There must be a common danger impending, in which ship, freight, and cargo participate. 2nd. There must be a sacrifice of a portion of the ship or cargo, or extraordinary expenses incurred for the purpose of avoiding that common peril. 3rd. The attempt to avoid the peril must be successful."

The English and French systems, as administered by the average adjusters, in the absence of express decisions of the courts on the question, accord best with the idea, that the motive for making the sacrifice or incurring the expense must be the common physical safety of the property; and this attained, the general average charges cease, although the ship may not have completed the voyage. The American system accords best with the idea, that the motive may be either the physical safety of the property, or the common benefit; i. e., the arrival of the ship and cargo in company at the port of delivery. The English and French systems recog nize the idea, that the community of interest is interrupted or suspended by the landing of the cargo in a place of safety, however remote from the port of destination; whereas the American system recognizes the community of interest as continuing, uninterruptedly, until the termination of the adventure."

Order of jettison.

385. A jettison must begin with the most bulky and least valuable articles, so far as may be practicable.

Code de Commerce, Art. 411.

By whom made.

386. A jettison can be made only by authority of

the master of a ship, except in case of his disability, or of an overruling necessity, when it may be made by any other person.

3 Kent's Commentaries, 233.

General average.

387. Except as hereinafter provided, all losses caused by jettison, and all damage done to ship or freight,' or both, by the master, or by his orders, when necessary for the physical safety of the ship or cargo,' as also the consequential damage resulting therefrom, and the expenses incurred for the same purpose, are general average.'

1 In addition to exceptions mentioned in the following Articles, the German Mercantile Law excepts goods not represented by bill of lading or manifest, and money and valuables of which the master was not notified. 710, sub. 2, 3.

As to whether this should be extended to sacrifices for the common benefit in other cases, see note to Article 384.

"The question has been raised whether general average contribution is due when the danger originates in the mismanagement or fault of the master or owner of the cargo, or a third person. Some Codes provide, and among them the new German Code, that contribution shall in such case take place, but the party at fault shall not receive anything, but shall be liable to reimburse the other contributors." Marvin, Report on Int. Gen. Ave.

Loss, how borne.

388. A general average loss,' when lawfully made, must be borne in due proportion by all that part of the ship, appurtenances, freightage and freight, for the benefit of which the sacrifice was made, and which was really saved,' as well as by the owner of the thing sacrificed."

By the German General Mercantile Law, § 707, a claim for damage belonging to general average is only so far set aside by a particular average subsequently affecting the damaged article, (whether it be again damaged or totally destroyed,) as it is proved that the latter misfortune not only was in no way connected with the former, but that it would also have resulted in the former damage if this had not already been occasioned.

If, however, before the occurrence of the latter misfortune, steps should already have been taken to reinstate the damaged article, then the claim

for reimbursement holds good as far as such steps are concerned. See Barnard v. Adams, 10 Howard's U. S. Sup. Ct. Rep., 270, 303.

2 German General Mercantile Law, § 705. It is added there in § 706 and 7. that the obligation to contribute to general average from an article saved, is not annulled because the article is subject subsequently to particular average, unless it is totally destroyed.

That Code also provides that ammunition and provisions of the ship, wages and effects of crew, and baggage of passengers do not contribute. $ 725.

3 Lee v. Grinnell, 5 Duer's (New York) Rep., 431; Simonds v. White, 2 Barnewall & Cresswell's Rep., 805. But by the German Mercantile Law, an average loss does not in general constitute a personal liability. § 728.

Loss, how adjusted.

389. The proportions in which a general average loss is to be borne must be ascertained by an adjustment, in which the owner of each separate interest is to be charged with such proportion of the value of the thing lost as the value of his part of the property affected bears to the value of the whole. But an adjustment made at the end of the voyage, if valid there, is valid everywhere.'

3 Kent's Commentaries, 232.

1 Simonds v. White, 2 Barnewall & Cresswell's Rep., 805.

The German General Mercantile Law (§§ 711, &c.,) contains provisions regulating the adjustment in detail.

Consular power.

390. A nation may give to its consuls power to adjust averages and regulate repairs, in the case of ships of such nation coming within the country of the cousul's residence, when such acts are demanded by a party concerned who has no domicil in the country, and there is no agreement between the parties for a dif ferent mode of adjustment, or regulation of repairs.

But a consular adjustment, or average, or regulation of repairs, made under this article, does not bind any person who is either domiciled in the country, or a member of a third nation, unless he consents to the submission to the consul.

Suggested by the treaty between the United States and France, Feb. 23, 1853, Art. X., (10 U. S. Stat. at L., 998,) which provides that consuls shall

receive the declarations, protests, and reports of all captains of vessels of their nation, in reference to injuries [avaries] experienced at sea. They shall examine and note the storage. . . . In the absence of a stipulation to the contrary between owners, freighters, and insurers, they shall be charged with the repairs [regler ces avaries.] . . . If inhabitants of the country or members of a third nation are interested, and the parties cannot agree, the local authorities shall decide.

To the same effect is the provision in the treaty between the United States and

Belgium, Dec. 5, 1868, Art. XIII., U. S. Cons. Reg., (1870,) ¶ 511.

Italy, Feb. 8, 1868, XIV., 15 U. S. Stat. at L., (Tr.,) 185. And as to consular power to settle damage to effects and merchandise shipped in such vessels, see treaty between the United States and

New Granada, May 4, 1850, Art. III., 10 U. S. Stat. at L., 900.

Jettison of deck cargo.

391. A jettison of timber or deals, or any other description of wood freight, carried on the deck of a ship, in pursuance of a general custom of the trade in which the ship is then engaged, must be made good as general average, in like manner as if such freight had been jettisoned from below deck.

No jettison of deck freight, other than timber or deals, or other wood so carried, is to be made good as general average.'

Every structure, other than mast, spars and rigging, not built in with the frame of the ship, below deck, is to be considered a part of the deck of the ship.

This and the ten following articles are from the Report prepared by Judge WILLIAM MARVIN, in the Proceedings of the International Congress held at York, England, September, 1864, for the purpose of promoting a uniformity in the mode of adjusting general averages in the different countries of the world.

The American rule is, that the owner of things stored on deck, in case of their jettison, is entitled to the benefit of a general average contribution only in case it is usual to stow such things on deck upon such a voyage. Lawrence v. Minturn, 17 Howard's U. S. Sup. Ct. Rep., 100; Sayward v. Stevens, 3 Gray's Rep., 97; Smith v. Wright, 1 Caines' Rep., 43; Lenox c. United Ins. Co., 3 Johnson's Cases, (New York,) 178; Harris v. Moody, 4 Bosworth's (New York) Rep., 210; Gould . Oliver, 4 Bingham's Rep., (N. C.,) 134; S. C., 2 Manning & Granger's Rep., 208; Milward v. Hibbert, 3 Queen's Bench Rep., 120.

The German General Mercantile Law, (§ 710,) recognizes, as an exception, deck cargo in the coasting trade, when allowed by law.