extend around the globe, where communication is impossible. Hence he has, ex necessitate rei, powers unknown to any other agent. He can bind the ship and owners for necessary funds to complete the voyage. He can often sell part of the cargo to raise funds for the same purpose. He can give bottomry or respondentia bonds with the same object. He must communicate with the parties interested, if reasonably practicable," but there is a strong presumption in favor of a discretion honestly exercised by him.15

But he alone has such powers, and his right to incur a general average charge is limited to his own ship and her own cargo.

In the J. P. Donaldson,16 the master of a tug, which had a tow of barges, voluntarily cast them off in a storm to save his tug. The owners of the barges libeled the tug for an average contribution, the tug having been saved, and the barges lost. The court held that it was not a case for general average, as the barges did not occupy the relation to the tug which the cargo occupies to a ship, and the master of the tug did not hold to them the relation which the master of a ship holds to her cargo.

In RALLI v. TROOP," a ship which had caught on fire was scuttled by the municipal authorities of the port, and became a total loss; but it resulted in saving the cargo. The court held that the loss of the ship could not be charged against the cargo in general average, for the reason that it was the act of strangers, and not of the master. The learned opinion of Mr. Justice Gray may be specially rec

14 Julia Blake, 107 U. S. 418, 2 Sup. Ct. 692, 27 L. Ed. 595; Shoe v. Craig (D. C.) 189 Fed. 227; Shoe v. George F. Craig & Co., 194 Fed. 679, 115 C. C. A. 72.

15 Willcox Peck & Hughes v. American Smelting & Refining Co. (D. C.) 210 Fed. 89.

16 167 U. S. 599, 17 Sup. Ct. 951, 42 L. Ed. 292.

17 157 U. S. 386, 15 Sup. Ct. 657, 39 L. Ed. 742. See, also, Minneapolis, St. P. & S. S. S. Co. v. Manistee Transit Co. (D. C.) 156 Fed. 424.

ommended as an epitome of our law on the subject. He summarizes his conclusions thus:

"The law of general average is part of the maritime law, and not of the municipal law, and applies to maritime adventures only.

"To constitute a general average loss, there must be a voluntary sacrifice of part of a maritime venture, for the purpose, and with the effect, of saving the other parts of the adventure from an imminent peril impending over the whole.

"The interests so saved must be the sole object of the sacrifice, and those interests only can be required to contribute to the loss. The safety of property not included in the common adventure can neither be an object of the sacrifice nor a ground of contribution.

"As the sacrifice must be for the benefit of the common adventure, and of that adventure only, so it must be made by some one specially charged with the control and the safety of that adventure, and not be caused by the compulsory act of others, whether private persons or public authorities.

"The sacrifice, therefore, whether of ship or cargo, must be by the will or act of its owner, or of the master of the ship, or other person charged with the control and protection of the common adventure, and representing and acting for all the interests included in that adventure, and those interests only.

"A sacrifice of vessel or cargo by the act of a stranger to the adventure, although authorized by the municipal law to make the sacrifice for the protection of its own interests, or of those of the public, gives no right of contribution, either for or against those outside interests, or even as between the parties to the common adventure.

"The port authorities are strangers to the maritime adventure, and to all the interests included therein. They are in no sense the agents or representatives of the parties

to that adventure, either by reason of any implied contract between those parties, or of any power conferred by law over the adventure as such.

"They have no special authority or special duty in regard to the preservation or the destruction of any vessel and her cargo, as distinct from the general authority and the general duty appertaining to them as guardians of the port, and of all the property, on land or water, within their jurisdiction.

"Their right and duty to preserve or destroy property, as necessity may demand, to prevent the spreading of a fire, is derived from the municipal law, and not from the law of the sea.

"Their sole office and paramount duty, and, it must be presumed, their motive and purpose, in destroying ship or cargo in order to put out a fire, are not to save the rest of a single maritime adventure, or to benefit private individuals engaged in that adventure, but to protect and preserve all the shipping and property in the port for the benefit of the public.

"In the execution of this office, and in the performance of this duty, they act under their official responsibility to the public, and are not subject to be controlled by the owners of the adventure, or by the master of the vessel as their representative.

"In fine, the destruction of the J. W. Parker by the act of the municipal authorities of the port of Calcutta was not a voluntary sacrifice of part of a maritime adventure for the safety of the rest of that adventure, made, according to the maritime law, by the owners of vessel or cargo, or by the master as the agent and representative of both. But it was a compulsory sacrifice, made by the paramount authority of public officers deriving their powers from the municipal law, and the municipal law only; and therefore neither gave any right of action, or of contribution, against the owners of property benefited by the sacrifice, but not

included in the maritime adventure, nor yet any right of contribution as between the owners of the different interests included in that adventure."

But, if the scuttling was done at the request of the master, the loss would be the subject of general average.18

It Must Not be Caused by Any Fault 19

For instance, it is implied in all contracts of shipment that the vessel shall be seaworthy.20 If a voluntary sacrifice is rendered necessary by a breach of this warranty, the vessel so far from being entitled to recover in general average, can be held liable for any injury to the cargo caused thereby.21

Under the Harter Act, if she has exercised due diligence to make herself seaworthy, she is no longer liable to the cargo for negligent navigation, but in the absence of special agreement she cannot claim contribution in general average for an injury so occasioned. But since the passage of that statute she can claim such contribution if the right to the same is the subject of special stipulation.22

A shipper, however, is not considered in fault, and thereby deprived of the right to contribution, when the peril is caused by a concealed defect in his shipment equally unknown to him and the shipowner.23

Cargo carried on deck, of a character not customarily

18 Roanoke, 8 C. C. A. 67. 59 Fed. 161.

19 Irrawaddy, 171 U. S. 187, 18 Sup. Ct. 831, 43 L. Ed. 130; Tarabochia v. American Sugar Refining Co. (D. C.) 135 Fed. 424.

20 Caledonia, 157 U. S. 124, 15 Sup. Ct. 537, 39 L. Ed. 644.

21 Irrawaddy, 171 U. S. 187, 18 Sup. Ct. 831, 43 L. Ed. 130; Pacific Mail S. S. Co. v. N. Y. H. & R. Min. Co., 20 C. C. A. 349, 74 Fed. 564; Snow v. Perkins (D. C.) 39 Fed. 334.

22 Post, c. 8, p. 186; Jason, 225 U. S. 32, 32 Sup. Ct. 560, 56 L. Ed. 969; Ralli v. Societa Anonima de Navigazione (D. C.) 222 Fed. 994. 23 Wm. J. Quillan, 180 Fed. 681, 103 C. C. A. 647; Greenshields v. Stephens, [1908] A. C. 431.

HUGHES, ADM.(2D ED.)-4

carried there, cannot claim the benefit of a general average as against those not agreeing thereto.24

It Must be Successful

The foundation of the claim is that it is for the benefit of all. If they are not benefited thereby, there is no equitable claim upon them.25

It Must be Necessary

This almost goes without saying. The master is vested with a large discretion as to its necessity, and the courts are inclined to uphold that discretion.20

Practice

In practice, when a master has had a disaster, he comes into port for the purpose of repairs, and employs an average adjuster to make up a statement, pick out such items. as are properly chargeable in general average, and apportion them among the several interests. The master is entitled to hold the cargo until this is done, or until its owners give average bonds conditioned to pay their respective proportions. If he does not do so, his owners are liable to the parties injured.27

Remedies to Enforce Contribution

At first there was some question whether admiralty had jurisdiction over suits to compel the payment of such proportion. But it is now settled that the master has a lien upon the cargo to enforce their payment, that such lien may be asserted in an admiralty court, and that suits on average bonds are also sustainable in admiralty.28

24 Hettie Ellis (C. C.) 20 Fed. 507; John H. Cannon (D. C.) 51 Fed. 46; Wood v. Phoenix Ins. Co. (D. C.) 1 Fed. 235; Id. (C. C.) 8 Fed. 27.

25 Congdon on General Average, 11.

26 Lawrence v. Minturn, 17 How. 100, 15 L. Ed. 58. This means that there must be, in the language of Ralli v. Troop, supra, "an imminent peril impending over the whole."

27 Santa Ana, 154 Fed. 800, 84 C. C. A. 312.

28 Dupont de Nemours v. Vance, 19 How. 162, 15 L. Ed. 584;