On the other hand, it is held by some authorities, that goods sold abroad for a common necessity should be regarded as sacrificed for the common benefit, or, in other words, should be treated as if jettisoned; for it is the same thing to the merchant whether the goods be sold, taken, or thrown into the sea. And then again, as goods if jettisoned are considered as still continuing on board, and the goods sold are to be treated as if jettisoned, they also must be considered as still continuing on board;2 and therefore, if the whole adventure subsequently perishes, these goods perish with the rest, and no contribution is due for them. Emerigon, Stevens, Benecke, and Kent may be cited as holding these views.3

Mr. Arnould considers that these conflicting authorities do not differ so widely as they appear to, and that they may be reconciled to each other, by considering that the rule that the ship-owner is liable for goods so sold, although his ship be not saved by them, is applied only to the cost of the necessary repairs which he was himself bound to make at his own expense; while the authorities who consider him discharged by the loss of the ship have in their mind only those extraordinary expenses which are incurred for the common benefit, and give a claim to general average contribution.4 perils of the sea from pursuing her voyage, was obliged to put into port to repair; and, in order to defray the expenses of such repairs, the master, having no other means of raising money, sold part of the goods, and applied the proceeds in payment of these expenses. The action was brought by the owner of the goods sold upon a policy of insurance upon the same; and it was held that the underwriter was not answerable for the loss, it not being occasioned by a peril of the sea. Mr. Justice Bailey, after expressing his concurrence with the opinion of Lord Ellenborough, C. J., said: “It does not appear to me that this was a loss by a peril of the sea, or such as entitles the assured to recover, under the general words of the policy; but a loss for which the owners of the goods will be entitled to be reimbursed by the owner of the ship. The owner of the ship undertakes to have the ship fit to perform her voyage; and, in case of accident, it is the duty of the owner, and the master in place of the owner, to provide for its repair. The loss here was occasioned by the act of the captain, who disposed of the goods in order to provide himself with funds for the repair of the ship. If he could have raised these funds in any other way, he would not have taken the goods."

1 Stevens on Av. (5th ed.) 15.

"Les effets jetés, vendus, ou donnés pour le salut commun, sont présumés être encore existans dans le navire." Emerigon, tome 1, ch. 12, § 43, p. 654.

Emerigon, supra; Stevens, supra; Benecke, Pr. of Indem. 292; 3 Kent, Com. 242.

2 Arnould, Ins. 925.

We cannot think that very much is gained by this distinction; in fact, it leaves the question substantially unanswered; for the precise difficulty in determining such a case is to decide whether the expenses were such as the master was bound to make at his own charge, for the benefit of others, or whether they were expenses which he voluntarily incurred for a common benefit, and on which, therefore, he may found a claim for general average contribution. But, upon the whole, we can only say that the conclusion of the authorities above referred to, who consider the ship discharged by the loss of the adventure, would be that adopted generally, to say the least, in practice in this country.

There is another question which stands in some relation to that we have just considered, in regard to which there is much conflict of opinion, and perhaps some uncertainty. It is this: If a sacrifice be made for the common benefit and to avert the peril that threatens all, and the ship perishes by that very peril, while the cargo or a part of it is saved from the wreck, does that which is saved contribute for that which is sacrificed? The civil law declares that no contribution should be made in such a case, but that the merchants save all they can on their own account, as if from a fire.1 The French law follows the rule of the civil law and provides that, "if the jettison does not save the ship, no contribution takes place." 2 And all the French writers upon insurance are unanimous in the same view,3 and the same thing is asserted by English text-writers, and by Chancellor

1

Dig. 1. 14, tit. 2, f. 7. "Cum depressa navis aut dejecta esset, quod quisque ex ea suum servasset, sibi servare respondit, tanquam ex incendio." Pardessus, Coll. de Lois Mar. vol. 1, ch. 3, p. 108.

* Code de Commerce, art. 423; Ord. de la Marine, tit. du Jet. art. 15. Emerigon, vol. 1, ch. 12, § 41, p. 616; Boulay Paty, Traité des Ass. ch. 12, § 41, p. 601; Pothier, Cont. Mar. No. 114; Valin, tit. du Jet. et de la Contribution, art. 15, 19, vol. 2, pp. 205, 209.

4

2 Magens, 97; Stevens on Av. (5th ed.) 8; Marshall on Ins. Bk. 1, ch. 13, § 7, p. 463. Marshall says that if, on the contrary, the ship is preserved by the jettison, and continues her course, but is afterwards lost, the effects saved from this last misfortune, if any, shall contribute to the loss sustained by the jettison, because to that the preservation was once owing. Magens speaks to the same effect, vol. 2. pp. 98, 240. Valin says, however, citing Domat, fol. 187, that where the ship perishes during the same storm on account of which the jettison was made, even though it may not be till some days afterwards, yet the goods saved do not contribute for those sacrificed. Tit. du Jet. art. 16, p. 207, vol. 2.

3

On

Kent, who cites in favor of this view two American cases.2 the other hand, Benecke and Phillips are of a different opinion. The question, while seemingly one of law, may be regarded as, to some extent, rather one of fact, -Was any property saved by the jettison? The strong expression above quoted from the French Code de Commerce goes on the supposition that the jettison was made to prevent the wreck, and, if the wreck then took place, the jettison was wholly ineffectual; and, as it did no good, it could find no claim to contribution. And it must be admitted that the most general foundation of an average claim is the principle of justice, that whoever is benefited by the voluntary sacrifice of another's property, which sacrifice was made to benefit him, ought to compensate therefor. Consequently, if no one. is benefited by the sacrifice, no one should be called upon to contribute for it.

But is this the only principle of justice in the case? The Spanish law, Weijtsen,5 whom Mr. Arnould justly calls "an early Chancellor Kent, with Marshall, says that a temporary safety is all that is requisite to entitle the owners of the property sacrificed to contribution; and he cites Vinnius, in Peckium ad legem Rhodiam, 246, 250, and Boulay Paty, tome 4, 443. 3 Kent, Com. 240. See also Scudder v. Bradford, 14 Pick. 13, 14.

1 3 Kent, Com. 234.

2 Crockett v. Dodge, 3 Fairf. 190; Williams v. Suffolk Ins. Co. 3 Sumner, 510. 3 Benecke, Pr. of Indem. 179. He cites a case from Emerigon, vol. 1, p. 616, where a French vessel, in order to escape from an English privateer, threw overboard her guns, part of her apparel, and one hundred barrels of rice. She nevertheless was taken, but six days afterwards made her escape. It was decided that no contribution could take place, as the ship was not saved by the jettison. Benecke, commenting upon the case, says: "The unreasonableness of this decision is apparent, if the case is considered according to its nature, and not according to positive laws. Every party interested would, at the moment of danger, had he been present, have willingly consented to pay for the goods which must be sacrificed to give the vessel a chance to escape, even if the attempt should fail, and the vessel with her remaining cargo be saved in some other way. The attempt to save was in itself of value to all parties, consequently all parties ought to concur in the loss. Those goods, if not thrown overboard, would have been saved like the rest out of the enemy's hands, and their owner would have been in the same situation as the rest of the parties. Consequently he ought to be placed in the same situation by a general contribution, if, after an unsuccessful attempt to save the whole by jettison, it be afterwards saved by any other means." He cites Weijtsen, § 33, to the same effect. See also 2 Phillips on Ins. 98.

Ord. de Bilboa, cap. 20, art. 16.

'Weijtsen, Traité des Avaries, art. 33.

and highly esteemed writer upon average," Mr. Benecke,1 and Mr. Phillips2 hold that the law should be adjusted on the ground, that the goods saved should contribute for those sacrificed, because, if the goods jettisoned had not been destroyed, their owners might have saved or recovered them in the same way as the other owners have saved or recovered theirs.

The principle involved in this is one which was somewhat considered in the preceding chapter. It is, that if property be voluntarily sacrificed to avert a common peril, and the property for whose benefit the sacrifice is made is saved, although not thereby, and the property sacrificed might have been saved as well if not so destroyed, then this sacrifice should still be compensated for.

The obligation does not now rest upon the success of the sacrifice, but on the motive, and on the implied contract of those whose property is saved to compensate those whose property is destroyed that theirs may be saved. If all is lost, there is no claim for compensation, because nothing in fact is sacrificed; for that which is voluntarily destroyed would have been lost with the rest. But if the rest or a part of it is saved, and that which was voluntarily destroyed might have been saved as well, the adjustment rests on the supposition that an implied promise of compensation comes in. We think there are American cases which sustain this conclusion.3

In Walker v. United States Ins. Co. 11 S. & R. 61, it was decided that if a vessel lying at anchor be in danger of being driven ashore in a dangerous place by a storm, and the captain, in order to avoid the danger, cuts the cables and hoists sail for the purpose of getting out to sea, or, if that be impracticable, of going ashore elsewhere, but the vessel nevertheless goes ashore and bilges, the cargo saved should contribute for the loss of the cables and anchors, as well as for any other sacrifice of the rigging or hull, which can be shown to have been made for the common benefit. Here the purpose of the sacrifice was not accomplished, — the ship was not prevented from going ashore; and yet contribution for the loss was allowed, the court holding that it was the deliberate purpose to sacrifice the thing at all events, combined with a view to the general welfare, which was the distinguishing feature between general and particular average, thus showing that the claim to contribution depended upon the motive rather than upon the success of the sacrifice. Where a ship was accidentally stranded, and, after an unsuccessful jettison of a large quantity of sugar for the purpose of getting her off, was abandoned by the master and crew, and the ship afterwards floated and was picked

SECTION XIV.

WHEN THE LOSS OF THE SHIP IS TO BE ADJUSTED AS A GENERAL AVERAGE LOSS.

It is very seldom that the whole ship is to be contributed for as sacrificed for a common benefit, and therefore a general average loss. It occurs only in a case of voluntary stranding, and this subject has been already fully considered.

But a partial injury to the ship voluntarily caused for the common benefit frequently occurs, and then it is to distributed by the adjustment among the interests benefited.1 In applying this rule, we must remember that here, as elsewhere in the maritime law, the word "ship" includes whatever is on board the ship for the objects of the voyage and adventure in which she is engaged, and belongs to the owners, and is either a part of the ship or one of her appurtenances, that is, distinctly connected with the ship and the proper use of her. The question whether a thing sacrificed is a part of the ship is of less importance in respect to the law of general average, because, if anything belonging to the owners is sacrificed for the common benefit, it must be contributed for.

Masts, spars, guns, anchors, cables, ship's stores, when purposely lost for the common benefit, are adjusted on the same footing with jettisoned goods. A difficulty in this case sometimes arises, when it is necessary to distinguish between a voluntary sacrifice and a loss by the mere perils of navigation, or even by wear and tear; as, for example, if cables are cut away or anchors are slipped to avoid being separated from convoy, this is a general

the

up and brought into port, Mr. Justice Story said: "In respect to the jettison of cargo, it is clear that it constitutes a case of general average, to be borne by the ship, freight, and cargo, ultimately saved." The Nathaniel Hooper, 3 Sumner, 542. Here the object of the jettison was to lighten the ship that it might be got off, - an object which the sacrifice clearly failed to accomplish; and yet it was held that the property ultimately saved, though saved by other means, should contribute to this unavailing loss, the intention of the loss being the common benefit of that property. But see, to the contrary, Scudder v. Bradford, 14 Pick. 13.

1 Benecke, Pr. of Indem. 230; Bradhurst v. Col. Ins. Co. 9 Johns. 9; Gray v. Waln, 2 S. & R. 229; Caze v. Reilly, 3 Wash. C. C. 298; Walker v. U. S. Ins. Co. 11 S. & R. 61; Emerigon, vol. 1, ch. 12, § 41, p. 620.