But how is it if the vessel be got off? Without stating in the text the various views given in the cases on stranding, all of which we cite in our notes, we state, as the principle which we think must govern all these cases, that there must be a voluntary sacrifice of some positive value. If then the ship must inevitably be cast upon the shore, and all that the master does is to select a place; a time, and a mode of stranding her, we should say that this is not that voluntary sacrifice which the law of general average requires, and therefore is not an average loss. All that the ‣

In the case as reported in 1 Sprague, 135, the following statement of facts is made. "It appeared by the evidence that on the night of December 16th, 1845, during a violent gale, the vessel came to anchor about four miles off Manomet Point; that soon after, she began to drag, and drifted slowly, stern foremost, towards this point, which ran out about three quarters of a mile, and on which the breakers were very heavy. As it was impossible to keep clear of the shore by making sail, the captain concluded that one of two things must be done; either to cut away the masts, with the hope the anchors would then hold, or to slip the cables, make sail, and run the ship on shore in some place where there was a chance of saving life and property; he determined on the latter course, slipped his cables and made sail. After this was done, the vessel cleared the point, ran on a sunken rock, and afterwards on shore."

Bigelow, C. J., in Merithew v. Sampson, 4 Allen, 192, refers to Rea v. Cutler, and says that it is impossible now to say on what precise ground it was decided, and that, from the fact that it was not reported, the inference is that it turned on a question of fact, and did not involve any new principle of law. He adds: "The position that no claim for contribution can be sustained by the owner of the vessel where she is totally lost is not supported by the more recent authorities, and is not reconcilable with sound principles." See also Gray v. Waln, 2 S. & R. 229: Mut. Safety Ins. Co. v. Cargo of Brig George, Olcott, Adm. 89; Barnard v. Adams, 10 How. 270; Patten v. Darling, 1 Clifford, C. C. 254; Code de Commerce, art. 425; 2 Browne, Civ. & Adm. 199; Weskett, p. 132, § 4, p. 255, § 4.

The point as to the liability to contribution of the cargo which is saved, when the ship is lost by the stranding, does not appear to have ever directly arisen in the courts of England. Abbott on Shipping, 490; Arn. on Ins. 903.

1

1 Benecke, Pr. of Indem., says, p. 219 (ed. 1824): "If the situation of the vessel were such as to admit of no alternative, so that without running her ashore she would have been unavoidably lost, and that measure were resorted to for the purpose of saving the lives or liberty of the crew, no contribution can take place, because nothing in fact was sacrificed. But if the vessel and cargo were in a perilous but not a desperate situation, and the measure of running her ashore deliberately adopted as best calculated to save the ship and cargo, in that case the damage sustained, according to the fundamental rules, constitute a claim for restitution."

master did was to strand in such a way as to give him a better hope of saving the ship, her cargo, and the lives of those on board.1

Moreover, if the ship is to be contributed for, it should only be on the value which she possessed at the time, and in the condition in which she was when the captain, abandoning all other hope, endeavored to choose his place; and this value would seem to be, in the case supposed, nothing.

But if the master had a substantial and valuable chance of saving his ship, and threw this chance away voluntarily, that he might make sure of saving the cargo, then the cargo should contribute to repay the loss, although the chance thus thrown away was less, and even much less, than a probability.

There are American cases undoubtedly which indicate a very different view of the subject; but we find it difficult to reconcile them with what seem to us the unquestionable principles of the law of general average. In the earliest case 2 on this subject,

1 In a recent case in Connecticut, Ellsworth, J., speaks as follows: "Now to me it seems little less than a paradox, that if a captain whose vessel is doomed to destruction by stranding should consider and select, for his compulsory going ashore, the place least perilous to himself and vessel, and least destructive to what might happen to escape the general destruction, such preference is the incurring a voluntary sacrifice which entitles him to call for contribution. 'Save himself who can,' is a maxim much more applicable to such a case. When a captain finds that his vessel must go on shore, and he exerts himself to go on in a safer place rather than a more dangerous one, he no more makes a voluntary sacrifice than when, in navigating his vessel, he chooses a safe channel rather than a hazardous one, or changes his course to avoid a rock or shoal. He does his plain duty to the general interest, to mitigate an unavoidable calamity, but not at all in any sense to make a loss by selecting a part to be sacrificed in order to insure safety to the rest. Slater v. Hayward Rubber Co. 26 Conn. 139.

2 Sims v. Gurney, 4 Binn. 513. In giving the opinion of the court in this case, Tilghman, C. J., says: "It is not necessary that the ship should be exposed to greater danger than she otherwise would have been, to make a case of general average. It is sufficient if a certain loss is incurred for the common benefit." But in a later case in the same State, an entirely opposite doctrine was maintained by Gibson, C. J., who says: "It is not enough that there be a deliberate intent to do an act that may or may not lead to a loss; there must be a deliberate purpose to sacrifice the thing at all events, or, at the very least, to put it in a situation in which the danger of eventual destruction would be increased; and it is this deliberate purpose, combined with a view to the general welfare, which is the distinguishing feature between general and particular average. Walker v. U. S. Ins. Co. 11 S. & R. 61.

the master directed the course of the ship to a place other than that on which she would have been wrecked but for his action.

Mr. Phillips, in his treatise on Insurance, vol. 2, p. 93, note, in comparing these two cases, remarks: "But C. J. Tilghman was plainly right in this proposition, for the most usual case of average for jettison is a sacrifice where the thing sacrificed is in imminent danger of total destruction, with both ship and cargo; and the more certain the destruction would be without the sacrifice, the stronger is the claim for contribution." It is, however, precisely here that we distinguish between the two classes of voluntary stranding. If ship, cargo, and freight are all in imminent danger, but the danger is only imminent, and a part of the property exposed to the common danger, and having the common chance of safety, is purposely destroyed to save the rest, this is clearly a case of general average. But where the ship must be wrecked at all events, and there is no chance whatever of her safety, how can she found a claim for contribution on the mere fact that one place of destruction was preferred to another? If it be said that to avoid rocks, where she must have been torn to pieces, she seeks a beach where the cargo may be saved, one answer is, that she casts away no chance of safety by seeking this place; and another is, that she gives to herself, by going there, a possibility of ultimate safety, just as she does to the cargo. We should say that the decisions have generally turned upon the question whether there was only an imminent danger, or whether the wrecking of the ship was certain and inevitable. And as it must seldom be the case while a vessel floats that her safety is impossible, for who can say when or how the wind may change, or what it will do for the vessel? — the cases in which this voluntary stranding gives a claim for contribution are now much the more numerous. We think the rule well illustrated in the dissenting opinion of Mr. Justice Daniel, in Barnard v. Adams, cited in a note on the next page.

In Col. Ins. Co. v. Ashby, 13 Pet. 331, the jury found that the stranding was voluntary, and the point in question was not discussed by the court. Yet this case is often cited as one in which the court held, on the facts, that there was a voluntary stranding. In Meech v. Robinson, 4 Whart. 360, the vessel must have gone ashore at any rate, and would inevitably have been lost, together with the crew and cargo. She was run ashore in a less dangerous place, and was totally lost, but the lives of the crew, together with a portion of the cargo, were saved. It was held that this was not a case for a general average contribution. Walker v. U. S. Ins. Co. supra, has been supposed to confirm this case, but the distinction between them is important. In this latter case the court held, as a matter of fact, that when the captain slipped his cables, it did not appear that it was his intention to run his vessel ashore, but rather to get her out to sea, and, failing in this, he was driven on shore against his will. Meech v. Robinson may seem, however, to be overruled by Barnard v. Adams, 10 How. 270. But in this last case it did not appear that the ship would have been inevitably lost. She was drifting in a gale towards a rocky and dangerous part of the coast, on which, if she had struck, she must inevitably have perished, together with the crew and cargo. To avoid this peril she was steered along the coast and finally run on a beach,

She must have been wrecked at all events, and it did not appear that the place to which the master carried her was in any degree better adapted to save either the ship or the cargo than that to which she would have gone of herself. This was held to be a general average loss. But we have never been able to see the reasonableness or propriety of this decision, although Mr. Justice Grier, in giving an opinion of the Supreme Court, speaks of it as having received the "unqualified assent" and the "unanimcus approval" of that court.1

and all the cargo saved. This was held to be a case of general average contrbution. The vessel was not destroyed, but she was so high on the beach that it would have cost more to get her off than she would have been worth when off. A somewhat similar case came before the Circuit Court for the First Circuit in 1854. Sturgess v. Cary, 2 Curtis, C. C. 59. The vessel was at anchor, but in extreme danger of dragging her anchor and going to pieces, by being driver on a rocky shore by the violence of the wind and sea. To save the cargo and the lives of the crew, she was run on a beach. Contrary to expectation, the vessel was not lost, but was subsequently got off and repaired. For the experses thereby incurred, the owners of the cargo were held liable to contribute.

In Reynolds v. Ocean Ins. Co. 22 Pick. 191, it was decided that if a vesse at anchor is in imminent peril, and there is every probability that she will soon snk at her anchors or part her cables and drive on shore, unless her cables are cut; and they consequently are cut, and the vessel is voluntarily run on shore as the best expedient for saving life and property, the expense of getting her off is a subject of general average, and this without regard to the consideration whether the voyage is resumed, or the cargo again taken on board or not.

1 Barnard v. Adams, 10 How. 270, supra. In giving the opinion of the court in this case, Mr. J. Grier says, in approval of the instructions of the court below: "The court should, therefore, not be understood as saying, that if the jury believed the peril which was avoided was 'inevitable,' or that, if the jury believed that the imminent peril was not avoided, they should find for the plaintiffs. But rather, that if they believed there was an imminent peril of being driven 'on a rocky and dangerous part of the coast, where the vessel would have been inevitably wrecked, with loss of ship, cargo, and crew, and that this immediate peril was avoided by voluntarily stranding the vessel on a less rocky and dangerous part of the coast, whereby the cargo and crew were saved uninjured, then they should find for the plaintiffs." He says again, p. 305, speaking of the proper use of the term "sacrifice" in general average: "The offering of sacrifices was founded on the idea of vicarious suffering. And when it is said of the jactus that it is sacrificed for the benefit of the whole, it means no more than that it is selected to undergo the peril in place of the whole, and for the benefit of the whole. It is made (if we may use another theological phrase) the 'scapegoat' for the remainder of the joint property exposed to common destruction. The jactus is said to be sacrificed, not because its chance of escape was separate, but because

SECTION VII.

OF A SALE BY THE MASTER.

There is another case which seems to come to some extent at least within the principles of general average. It occurs when the master in a port of distress sells a part of the cargo to raise funds to enable him to pursue his voyage, and take the ship and residue of the cargo to the port of destination. We consider his powers in this respect, as to ship and cargo, fully elsewhere.

The question to be considered is, whether this is to be contributed for. The loss would seem to resemble very much a loss by jettison.1 It satisfies the three great requirements of the law of general average, for it is voluntary, necessary, and effectual. And we should have no doubt that the loss would be a general average loss so far that the property and interests saved thereby should contribute for it.2

of its selection to suffer, be it more or less, instead of the whole, whose chances of safety, as a whole, had become desperate. The imminent destruction of the whole has been evaded as a whole, and part saved by transferring the whole peril to another part." In a dissenting opinion, Mr. Justice Daniel speaks as follows: "I am wholly unable to perceive how, in conformity with the rules and principles above cited as constituting the foundation of general average, contribution could justly be claimed, in this instance, for the loss of the ship. For there is not a scintilla of proof in this cause tending to show a design to sacrifice the ship or anything else, nor tending to prove that the course pursued was one which, under any circumstances, could possibly have been avoided. On the contrary, the testimony establishes, as far as it is possible to establish any facts, that the stranding was the effect of the vis major of an inevitable necessity, that every effort was made to avoid this necessity, and that the only act of the mind apparent in the case was the determination, to repeat the language of Mr. Phillips already quoted, 'merely to steer her to a less dangerous place for stranding, when she was inevitably drifting to the shore,' - a determination not less for the benefit of the ship than for that of the cargo, and one falling within the general scope of the duty and discretion of every master or seaman.'

1 See remark of Mr. Justice Story in the case of The Ship Packet, 3 Mason, 260, infra, and 3 Kent, Com. 242.

2 In The Gratitudine, 3 Rob. Adm. 240, 263 (which was a case of a master hypothecating his cargo to pay for necessary repairs), Lord Stowell said the books overflowed with authorities that the master might sell part of his cargo, and that a sale of part was equivalent to the hypothecation of the whole, and was a fit subject for general average. And Lord Ellenborough, in Dobson v. Wilson, 3 Camp. 480, 487, expressed his opinion that if a ship should be seized for the non