(26) Ford v. Cotesworth, 5 L. R. Q. B. 544; 39 L. J. Q. B. 188; 23 L. T. 165; 18 W. R. 11,69; Waugh v. Morris,8 L. R. Q. B. 202, 42, L. J. Q.B. 57; Gadet v. Brown, 5 L. R. P. C. 134; 28 L. T. 745.

(27) Commercial S. S. Co. v. Boulton, 10 L. R. Q. B. 346; 44 L. J. Q. B. 219; 33 L. T. 707; 23 W. R. 854.

(28) Thns v. Byers, 1 Q. B. D. 244; 45 L. J. Q. B. 511; 34 L. T. 526.

(29) Thompson v. Havelock, 1 Camp. 527; Diplock v. Blackburn, 3 Camp.· 43; Gardner v. McCutcheon, 4 Beav. 534.

(30) Best v. Saunders, M. and M. 208.

(31) Thns v. Byers, 1 Q. B. D. 244; Porteus v. Watney, 3 Q. B. D. 223, 534.

(32) Fulton v. Blake, 5 Biss. (Am.) 371; Weaver v. Walton, 5 Chicago L. News 125. In these cases it was proved that the custom of the Port of Chicago was to allow one day to the consignee, after notice of the ship's arrival, to provide a dock for her.

(33) The Lady Franklyn, 8 Wallace Sup. Ct. 325; Halliday v. Hamilton, 11 Wall. 560; Higgins v. U. S. Mail St. S. Co., 3 Bl. 282.

(34) Donaldson v. McDowell, 1 Holmes Mass. C. C. 290; Weaver v. Walton, 5 Biss. 377, N.; The Hyperion's cargo, 2 Low. 93; The John, 2 Hagg. 317. (35) Commercial Steamship Co. v. Boulton, L. R. 10 Q. B. 346.

(36) Lockhart v. Falk, L. R. 10, Ex. 132; Lister v. VanHunusbergen, 1 Q. B. Div. 269.

(37) Laird v. Woodward, 5 Q. B. 190.

CHAPTER III.

PART III.

GENERAL AVERAGE.

Where a vessel with a cargo is in imminent danger of being lost and a part of the property is sacrificed for the purpose of preserving the remainder, all must combine to pay for the loss. This is known as general average.

To justify general average, the ship and cargo must be in such danger of being lost that a skilled mariner of good judgment believes that to save any part he must sacrifice the rest, and in such a position it is the master's duty to make such sacrifice. The sacrifice being intentional and deliberate, an act of the elements will not amount to a general average. For example where a master to prevent total loss throws part of of the cargo overboard or cuts away the masts it is general average. But where the storm or a collision effects the same thing as by washing overboard cargo or otherwise, it is not a general average loss.

The act done to be a general average one must not come within the scope of the ordinary duties of the ship-owner or master. For exam ple, where a ship carries on a press of canvass to escape from danger and she sustains damage in the hull, rigging or otherwlse in consequence, this is not the subject of general average, as it was the master's duty under the charter to do so. (1) Where a master hires extra hands to work the pumps to prevent the ship from sinking, he is entitled to general average. (2)

The act performed to rank as general average must be done for the good of the whole, and therefore when anything is thrown overboard for its own specific safety and not for the purpose of assisting to save the rest the loss is not a general average one (3)

For an act to be allowed as general average it is not necessary that success should be proved to have followed it as a natural consequence.

The safety of the whole ship and cargo must be in immediate danger to justify general average acts, and therefore casting away part to merely prevent a threatened partial loss is not within a master's duty and he has no such power.

It is the master's duty in case of a general average loss to draw up an account of same as soon as he reaches port, and this statement must be sworn to by himself and two or three of the most prominent of his crew.

Where an act comes under all the before mentioned requirements of general average, the master is the agent of the merchant or person whose property is destroyed for the purpose of such destruction or jettison, and the merchant is entitled to a contribution from the other owners to help replace his loss. (3 a)

Cargo stowed on deck and jettisoned is not a good foundation for a general average claim unless it is a usage of the trade to carry similar deck cargoes, or unless it is specially so agreed before hand.(4)

Under the United States laws the rule is not to apply general average to the loss of deck cargoes, as the owners of the cargo under cover ought not to contribute for the loss of goods on deck, even where it is the usage of the trade to carry cargo on deck. (5)

Where a ship is stranded, or in danger of sinking, or is too deep in the water to enter a port of distress, and goods are unloaded into boats or otherwise, or merely removed from their former place of safety for the purpose of relieving the ship in such distress and are in consequence lost, it is a general average loss. (6)

Where part of a ship's apparel is sacrificed for the safety of the rest of the venture, this is a general average loss. For example, where masts or sails are cut away to relieve a ship, or where a cable is cut to save a vessel from getting on shore, and in fact any case in which articles are used for other than their proper services for a common benefit and are lost in consequence. (7)

Boats cast overboard or cut away are the subject of general average, unless in case of boats cut from davits if it was against the usage of the trade to carry them so. (8)

Where a ship is voluntarily stranded to escape destruction and is afterwards saved, the damages are considered as coming under the general average law. (9)

Where a ship is so badly injured as to be forced for the common safety to deviate from her voyage in order to repair at a port of distress, the expenses of entering the port, such as pilotage, towage when disabled, dues and other indispensible expenses and the expenses of unloading the cargo when unloaded for the sake of both ship and cargo, all come under the general average law. (10) Such is not the case where the unloading was merely for the purpose of preserving the cargo, or where ship's stores are uploaded after the cargo is out. (11) And the expense for storing the cargo comes out of the cargo and those for out port charges and expenses of reloading on the freight. (12) There is a doubt as to whether reloading is a general average expense or not. (13)

Repairs done to a ship where the injury to be repaired is not the result of a voluntary and intentional sacrifice for the good of all are to be paid for by the ship owner. (14)

All the extra expenses incurred by the deviation in the voyage for the wages and keep of the crew are the subject of general average if the repairs are too. (15) In some of the States the law allows the two latter expenses as general average whether the repairs are so allowed or not. (16)

Salvage and extra help absolutely necessary when both ship and cargo are running the same peril and are rescued by such means come under the general average head. (17) Otherwise where the services &c., rendered are wholly for the benefit of the vessel. (18)

If the sacrifice be without reference to the general good although the danger be common, as for instance when goods are thrown into the sea with the object of saving them ultimately, or preventing them reaching other hands, this is not general average. (19)

Losses which are fairly within the contract made by either party cannot be classed as general average, for example, injury or loss of sails, spars, rigging or damage to the ship by perils of the sea and repairs of such must all be borne by the ship owner or his insurer. (20)

As a general rule damages sustained by an accidental collision, or from being obliged to run out to sea to save being cast on a lee shore are not within the general average rule. (21)

Wages and keep of a crew while the ship is undergoing necessary repairs during the voyage or whilst she is in quarantine in the ordinary course, or wind-bound, ice-bound or the like in a place she was not forced to make for out of the ordinary course of the voyage for the common benefit are not the subject of general average. The same rule holds where she goes into a way-port for supplies, water or provisions. (22)

These losses are as a general rule part of the ship owner's duty under ordinary contracts, even when occurring under unusual circumstances, and although the master is forced to sell part of the cargo to meet them the ship must pay the whole loss. (23)

The property to contribute is all that which ran the risk and shared in the benefit, including that thrown overboard and also the freight on all the cargo. This rule, therfore, only excludes goods or things which were either discharged before the danger or shipped after same was over.

The cargo contributes according to its value, not weight, but the apparel, personal jewelry and baggage of the passengers do not contribute. (24)

Deck loads always have to contribute, but can very seldom claim for a general average loss. (25)

The ship of course contributes and also all freight which is directly benefitted, including freight on the goods for loss of which contribution is made.

The value of the articles contributing in general average are ascertained as follows: