How it should be exercised. a surety for the price of the goods, cannot stop them (m). The consignor may stop, although the goods were consigned on the joint account of himself and the consignee, and a bill of lading has been sent to the latter making the goods deliverable to him or his assigns (n). Where the foreign correspondent of an English merchant procured goods abroad, on his own credit, from persons who were strangers to the English merchant, and shipped them on the account and risk of the latter at the original price, charging him only with a commission, it was held that the foreign correspondent was so far a vendor, as between him and the merchant here, that he might exercise the right of stoppage in transitu (o). A person, however, who has a mere lien on the goods, which he loses by parting with the possession of them, cannot exercise this right (p). Where the stoppage is effected by a person who has at the time no authority, a ratification of his acts by the consignor, made after the transitus is ended, is not sufficient; for the ratification must be made at a time when, and under circumstances in which, the ratifying party might himself have lawfully done the act which he ratifies (9). There may of course be a rescission of the contract of sale by the mutual consent of the vendor and vendee, after the right of stoppage has ceased to exist (). The proper and ordinary mode of stopping the goods is to give notice to the carrier or person in whose custody they are, and to demand them of him. This notice ought either to be given to the person who has the immediate custody of the goods, or to the principal whose servant has the custody, at such a time and under such circumstances, that he may by reasonable diligence communicate it to his servant in time to prevent the delivery (8). The rights of factors to deal with bills of lading and other indicia of property in goods, are now regulated by the statutes (m) Siffken v. Wray, 6 East, 371. on. (s) Whitehead v. Anderson, 9 M. & W. 518. It seems the notice of stoppage in transitu given to a shipowner imposes no duty on him to communicate the notice to the master, and that it is not effective until it is communicated; Ex parte Falke, 14 Ch. D. 446. commonly called the Factors Acts, 6 Geo. 4, c. 94, 5 & 6 Vict. c. 39, and 40 & 41 Vict. c. 39 (t). The Interpleader Act (1 & 2 Will. 4, c. 58), which gives Interpleader relief to persons who are sued for money or goods in which act. they have no interest, and which are also claimed by some third party, will be found sometimes to relieve masters of ships from difficulty in cases of conflicting claims to goods in their possession (u). AVERAGE. Where, as is usually the case, the property embarked in GENERAL the voyage and adventure belongs to different owners, it sometimes becomes necessary to sacrifice the rights of some of them for the general good of all; and in this event the law provides that an equitable adjustment and distribution of the loss shall be made between all the parties interested (x). (t) For the decisions under these acts, see the notes to Lickbarrow v. Mason, 2 Smith's L. C. 831 (8th ed.); and see supra, p. 347. (u) It was held, in some cases, that this act did not apply where the person holding the goods had incurred a personal liability to either of the contending parties. Patorni v. Campbell, 12 M. & W. 277; Lindsey v. Barron, 6 C. B. 291; Horton v. Earl of Devon, 4 Exch. 497; Crawshay v. Thornton, 2 Myl. & Cr. 1. The act was also thought not to apply where the title of the claimants had not a common origin. The Common Law Procedure Act, 1860, now, by s. 12, enables "a judge to make an interpleader order, though the titles of the claimants to the money, goods, or chattels in question, or to the proceeds or value thereof, have not a common origin, but are adverse to and independent of one another." The effect of this section and of recent decisions, has been to remove both of the above exceptions. See the note upon this section in Day's Common Law Procedure Acts; Meynell v. Angell, 32 L. J., Q. B. 14; Best v. Hayes, 1 H. & C. 718; Tanner v. The European Bank, L. R., 1 Ex. 261; Attenborough v. St. Catherine Dock Company, 3 C. P. D. 450. As to the practice in interpleader, see Ord. I. r. 2, 1875, and Wilson's Judicature Acts, 129, where the whole system of interpleader is fully reviewed. Where two different claimants demand the same goods, it seems the master may interplead. See The Tigress, Br. & L. 45, and see supra, p. 359. But where proceedings are already pending in the Admiralty Division, and that Court can decide the whole question, the Chancery Division will refuse to interfere. Sablicich v. Russel, L. R., 2 Eq. 441. (x) There are, perhaps, no subjects upon which the laws of different countries have differed more than questions as to general average, and the mode of contribution towards it. These subjects have been largely and ably dealt with both by English and by foreign jurists. The observations in the text are, however, almost entirely confined to the decisions of our Courts upon these points; for although it is frequently interesting and useful to know what may be the rule of foreign systems in any given case, these enquiries do not fall within the scope of this work, and when any point arises in our Courts which has not been decided in them actually, or by analogy, it is very uncertain how far the principles of foreign lawyers will be adopted. See an elaborate summary of the principles governing cases of general average in the judgment in Barnard v. Adams, 10 How. (American) Rep. 270. General average is neither within the words or the object of the suing and labouring clause in a policy. Lohre V. Aitcheson, 4 App. Ca. 755; Dixon v. The Sea Insurance Company, Court of Appeal, March 6, 1880. Loss must be voluntarily incurred. Jettisons. Cases of general or gross average (y) arise, therefore, where loss or damage is voluntarily and properly incurred in respect of the goods, or of the ship, for the general safety of the ship and cargo (z). The loss or injury must be voluntarily incurred; that is to say, there must be a sacrifice (a) of part for the sake of the rest (b). Thus, to put the simplest, and in early times the most usual form of this question, if goods are thrown overboard in a storm for the purpose of saving the ship and residue of the cargo from (y) Simple or particular average arises where any damage is done to the cargo or vessel by accident or otherwise, such as the loss of an anchor or cable, the starting of a plank, the turning sour of a cargo of wine, which are all losses which rest where they fall. See the judgment of Sir W. Scott in The Copenhagen, 1 Rob. 289. This expression, as applied to losses of this description, has been said to be inaccurate; but the term average appears strictly not to imply any more than a damage. See Ducange Gloss. Averia; Encyclopédie du Droit, tit. Avarie; Benecké's Princ. of Indemn. 167; Stevens on Average; Baily's "Perils of the Sea." As to the meaning of this term in policies of insurance, see post, Chap. VII., INSURANCE, Part I.; The Great Indian Peninsular Railway Company v. Saunders, 1 B. & S. 41; S. C. in Cam. Scacc., 2 ib. 266; Kidston v. The Empire Marine Insurance Company, L. R., 1 C. P. 535. See also Schuster v. Fletcher, 3 Q. B. D. 418. (2) "Lege Rhodiâ cavetur ut, si levandæ navis gratiâ jactus mercium factus sit, omnium contributione sarciatur, quod pro omnibus datum est. Dig. lib. xiv. tit. 2, fol. 1. It is well known that this rule is of high antiquity, and that it was adopted into the Digest from the so-called Rhodian law. See Pardessus' Dissertation on the Origin of this Compilation, 1 Lois Marit. chap. 6, p. 209; Pothier Traité des Contrats des Louages Maritimes, Seconde Partie; Park on Ins. 202; 3 Kent Com. 232. In the English Reports questions of average do not occur early. Hicks v. Palington, Moo. Rep. 297 (32 Eliz.), appears to be one of the earliest reported cases as to average. In Mouse's Case, 12 Rep. 63; 1 Roll. Rep. 79, where it was held that passengers may for the safety of their lives and navis levande causâ, throw goods overboard without being therefor responsible to the owners, no question of average, properly speaking, seems to have been raised. There is no doubt, however, that the principle of this rule was adopted from a very early period into our maritime law, either from the laws of Oleron or some other continental source; for, in 1285, Edward I. sent to the Cinque Ports letters patent declaring what goods were liable to contribute. See post, p. 435, note (1). (a) If a mast be cut away under circumstances which show that it is already hopelessly lost, and so practically valueless, there being no sacrifice there is no average. Shepherd v. Kottgen, 2 C. P. D. 585. See the judgment of Brett, L. J., in that case, and Corry v. Coulthard, ib. 583, and the judgment of Cockburn, C. J., in Schuster v. Kellar, 2 Q. B. D. 425. (b) See the judgment of Lord Ellenborough in Power v. Whitmore, 4 M. & S. 149; see also Sheppard v. Wright, 1 Show. P. C. 18; Birkley v. Presgrave, 1 East, 220, and the judgment of Lord Stowell in The Copenhagen, 1 Rob. A. R. 293; Walthew v. Mavrojani, L. R., 5 Ex. 116; Steward v. The West Indian and Pacific Steamship Company, L. R., 8 Q. B. 88. According to the Rhodian law contribution was not only to be made in cases of jettison, but (and herein the Roman law was different) every loss by fire, pillage, shipwreck, or other vis major which could not be traced to any one, was to be made good by a general contribution on all that was saved. See 1 Pardessus Lois Marit. 226. imminent danger, the several persons interested in the ship, freight, and cargo, must contribute rateably to indemnify the person whose goods have been sacrificed against all but his proportion of the general loss (c). This is the general principle. There is no contribution where damage to goods is the result No contribution in respect of the negligence or misconduct of the shipowner, as where it of loss arising arises from unseaworthiness existing at the commencement of from neglithe voyage (d). gence. incurred. The loss must be properly incurred; that is to say, it must be Or from loss incurred for sufficient cause and under circumstances which show improperly that the course pursued was prudent and reasonable, and not a mere act of groundless timidity (e). It should be effected with as much choice and deliberation as is possible; but by the law of England the master is not bound to consult with his officers or crew previously to the sacrifice; although this course, where practicable, is often prudent. In all cases, however, a formal protest or statement of the jettison or damage ought to be made on the earliest occasion, in order to rebut any suspicion of fraud (ƒ). As a general rule there is no contribution where the damage Or from sea perils. is only the natural result of a sea peril, although the exposure to that peril may have been caused by extraordinary exertions to avoid capture or wreck. Thus, where a ship, which had been captured by a privateer, effected her escape by carrying an unusual press of sail, and in so doing was much strained and injured, and lost the head of her mainmast, it was held that this was not a case for average, but only a sea risk, since if the weather had been better, or the ship stronger, nothing might have happened (g). (c) See the judgment in Butler v. Wildman, 3 B. & Ald. 398; Park on Ins. 160. The loss of the owner of the goods jettisoned is total as against the underwriter, and the latter is bound to indemnify the assured, in whose place he is then entitled to stand with respect to the general average contribution. Dickenson v. Jardine, L. R., 3 C. P. 639. In cases of jettison, the freight which the shipowner would have received for the goods thrown overboard must be made good to him 59. (d) Schloss v. Heriot, 14 C. B., N. S. (e) See 3 Kent Com. 233; Emérigon Traité des Assur., chap. xii. s. 39, vol. 1, p. 588. (f) Birkeley v. Presgrave, 1 East, 220. (g) Covington v. Roberts, 2 B. & P., N. R. 378. Where a ship, in order to avoid being driven on shore, and for the necessary preservation of the ship and cargo, stood out to sea under a press of sail in tempestuous weather, and, in consequence, suffered injury in her hull, sails and tackle, it was held that there was not a general average loss (g). But it is otherwise where there is a voluntary sacrifice of some portion of the ship or cargo for the general good, although the immediate cause of the damage may be a peril of the sea. Thus, where a ship was caught in a violent squall as she was entering harbour, and the master, in order to preserve the vessel and cargo, cut the cable from the best bower anchor, and saved the ship by mooring her with it to the pier, and he afterwards employed men to give extraordinary assistance, and to go on board to keep the ship clear of water, in order that the cargo might not be spoiled, it was held that the value of the cable, and also, apparently, the other expenses, were an average loss. The rule laid down by Lord Kenyon, C. J., in this case was, that all ordinary losses and damages sustained by the ship, happening immediately from the storm or perils of the sea, must be borne by the shipowners; but that all those articles which are expended by the master and crew upon a particular emergency, and out of the usual course, for the benefit of the whole concern, and the other expenses incurred, must be paid for proportionably as a general average (h). If to avoid danger, or to repair damage occasioned by a storm, the ship is compelled to take refuge in a port to which she is not destined, and in order to enter is obliged to lighten the ship by removing part of the cargo into barges, and this portion is lost on its passage to the shore, this loss is a general average, for it is occasioned by the voluntary removal of the goods for the common benefit (i). Upon the same principles it is said, in an early case (j), that there must be contribution if parcel of the goods is given as a (g) Power v. Whitmore, 4 M. & S. 149. (h) Birkley v. Presgrave, 1 East, 220; see also Marsham v. Dutrey, Select Cases of Evidence, 58; 2 Phillips on Insur. 88. See also Harrison v. The Bank of Australasia, L. R., 7 Ex. 39, where the Court was divided as to whether the burning of spars to work a donkey-engine during stress of weather created a claim for general average. In Robinson v. Price, 2 Q. B. D. 91, 295, such a claim was upheld. The master in this case had burned some spare spars and cargo. The Court said that if there had not been a reasonable supply of coal for the donkey-engine the average claim could not have been supported. (i) Park on Ins. 205. (J) Hicks v. Palington, Moo. 297. |