ment of the voyage, but also, as far as in them lies, to maintain the ship in a perfect condition during the whole course of the voyage, and almost every charter-party contains an express covenant to that effect. If, indeed, the ship be not worth all the charges, as well direct as collateral, a consideration wholly different may arise; but, assuming the ship to be worth the expense, why should the merchant be charged in any shape towards the performance of a duty incumbent on the owner? What is here offered as to wages and maintenance may apply also to port charges and other duties of a like nature on the same account, and also to the value of a part of the cargo that may happen to be sold by the master to defray the expense of the repairs."

The doctrine that extraordinary expenses for the joint benefit of ship and cargo, other than repairs of the ship itself, may, if necessary to the prosecution of the voyage, although necessitated by sea damage only, found a claim for general average contribution, seems clearly traceable to a construction put by Emerigon upon the 2nd Article of the 2nd section of the French Ordinance des Araries, liv. 3, tit. 7.

Les dépenses extraordinaires faites pour le bâtiment seul, ou pour les marchandises seulement, sont avaries particulières : les dépenses extraordinaires faites, et le dommage souffert pour le bien et le salut commun des marchandises et du navire, sont avaries grosses et communes.

In his commentary upon this article, vol. 1, p. 625, he says, that if a ship damaged by a storm is obliged to seek a port of refuge for repairs, the time lost during the repairs, the expense of unloading and reloading the cargo, and the wages and provisions of the crew, were allowed in his day by the Amirautés of Marseilles and of other French ports, to be the subject of general average contribution. He admits this practice to be at variance with the rule of the Civil Law, 6 ff., de lege Rhodia, which he had just before cited, and with the doctrine of the highest authorities, to whose works he refers on the general law maritime, but vindicates or apologizes for it as follows:

"If the ship were not repaired in the port of refuge, it would continue unnavigable, which would be a great prejudice to the cargo. These expenses, therefore, are incurred for the common good and safety."

Is it not plain that, but for the letter of the article, which expressly excludes ship's repairs, this reasoning would be equally applicable to them?

Notwithstanding the frequent citations

by Lord TENTERDEN from the French Ordinance, in every chapter of this treatise, it is remarkable that he makes no mention of this second article of the title des Avaries, and refers in a note to that part only of Emerigon's commentary upon it, in which he states the rule of the Rhodian and Civil Law. It being clear, from this reference, that neither the article nor the commentary had escaped his notice, how account for his silence respecting them, except upon the supposition, which his observations on foreign ordinances and treatises generally, in the first section of this chapter appear to countenance, that the article was not thought by him, if rightly interpreted by Emerigon, to contain, as the articles of the French ordinance for the most part do, an accurate expression of the law maritime?

To Mr. Arnould's second proposition, the use in it, as a distinctive epithet, of the word extraordinary, and the indefiniteness of that word, without the context, which, in the French Ordinance, explains its meaning, are serious objections.

The admissibility of expenses into the category of general average, must rest on the same principle as the admissibility of sacrifices. General average sacrifices are losses, of which the mind and agency of man are the realizing cause; imminent peril to life, ship and cargo, the occasion. Expenditure, the unavoidable consequence of an act, resort to a port of refuge, e.g. voted or resolved upon, along with, and as an accessory to the act, for the safety of ship and cargo in time of danger to them, is also manifestly a loss, of which the mind and agency of man are the realizing cause, imminent peril the occasion. By what test other than this of the mind and agency of man, proceeding exceptionally as respects his ordinary duty, being their realizing cause, is the extraordinary character of expenses to be recognized? Is the sudden, unforeseen, not caused by any voluntary act, misfortune, of a leak sprung by a ship, necessitating resort out of the ship's course, to a port of refuge, and expenses in it, a cause so extraordinary, as to make its accessories, the expenses incurred in a port of refuge, also extraordinary within the rule propounded, or must the leak be, as Mr. Arnould says, a damage by storm? And if so, by any kind of storm, anywhere, or only by a storm of unusual and unseasonable violence and duration, in the sea or latitude in which it occurs, an extraordinary hurricane, pampero, cyclone? Is it enough that the storm should be extraordinary in respect of the costly and extensive damage occasioned by it in the drifting,

collision, and foundering of ships which, had they been stronger or less crowded or better moored, might have withstood its fury? Again, in the case of a ship which has foundered in a storm at its moorings, is the expense of raising and restoring it to a proper condition to transport the cargo, to be like "the keeping of it in a proper condition to transport the cargo," an ordinary disbursement only, or is the final catastrophe of the ship's sinking, though not in any sense realized by the mind and agency of man, to convert the whole outlay necessitated by the same storm from ordinary and particular into extraordinary and general average expenditure?

The difficulty of giving a satisfactory answer to these questions renders it im possible to accept this word extraordinary as a test of general average expenditure. It is used in truth in the French ordinance as part of the description of average expenses generally, of particular average expenses, as well as of general average expenses. Valin, commenting upon the 1st article of the book, des Avaries:

"Toute dépense extraordinaire qui se fera pour le navires et marchandises conjointement ou séparément; tout dommage qui leur arrivera depuis leur charge et départ jusqu'à leur retour et décharge seront réputés avaries," says, and his commentary is equally applicable to the second article, the expenses are here called extraordinary in opposition to expenses which may naturally, naturellement, though they do not ordinarily, occur, in the course of a voyage." "Thus," he says, "the expenses incurred by reason of the unusual prolongation of a voyage, or by the master taking the ship unnecessarily into a port in which dues are payable, though not ordinary, are yet not, in the sense of this article, extraordinary; otherwise, if the master seek the port because he cannot safely keep the sea, or the ship be so damaged by the sea, that he is obliged to go into port for repairs, though," he adds, "in this last case, such expenses are chargeable to the ship alone."

Granted, therefore, as it must be, that none of those "ordinary disbursements of the voyage, which are necessary to keep the ship in a state to transport the cargo to its destination," can found a claim for general average contribution, it by no means follows, that the circumstance of expenses not being of that character, is any recommendation of them for admission into the class, of general rather than of particular, average.

bien

The words of the second proposition "incurred for the joint benefit of ship and cargo," are open also to observation. They are a translation of the words " "pour le commum des marchandises et du navire," but not, pace Emerigon, of the words "pour le bien et salut commun des marchandises et du navire." The word "salut," and the words "et le dommage souffert," inoculate the whole passage, giv ing a temper to it which, on their elimination, is entirely lost. Expenses not resolved upon in time of danger before a ship enters a port of refuge cannot be there incurred for the common safety; for, as Benecke observes, ante, note (d), p. 508, "the mere fact of the ship and cargo being in a port of refuge insures their safety." Mr. Phillips, too, vol. 2, 2nd edit., p. 92, commenting upon Lord ELLENBOROUGH's judgment in Plummer v. Wildman, and on a case decided in Massachusets in conformity with it, says, that in admitting repairs necessary to the prosecution of the voyage to be general average, the fundamental principle of general average-the taking measures for the safety of the property and the preventing of a loss-had not been kept in view. The fact, therefore, that expenses have been incurred for the joint benefit of ship and cargo, is not enough to entitle them to admission into the category of general

average.

By the Code de Commerce, title 11, des Avaries, the first article above set forth, of the title des Araries in the French Ordinance was re-enacted; and in the hope of composing the differences which had occurred in the construction of the second article, ante, p. 513, an enumeration of the more ordinary sacrifices and expenses which give a claim to general and partienlar average was set forth, the former article being followed by the words:

Et en général, les dommages soufferts volontairement et les dépenses faites d'après déliberations motivées pour le bien et salut commun du navire et des marchandises depuis leur chargement et départ, jusqu'à leur retour et déchargement, Art. 400; and the latter, by the words:

Et en général, les dépenses faites et le dommage souffert pour le navire seul ou pour les merchandises seules depuis leur chargement et départ jusqu'à leur retour et déchargement. Art. 403.

But expenses, to be the subject of general average contribution must, according to Mr. Arnould's first proposition, be roluntary. The steering into a port of refuge,

and the payment which it involves of port dues and other charges are, in a sense, voluntary acts; but when a particular average, already sustained, has rendered the incurring of such expenses a matter not of question, deliberation, and decision affirmative or negative, as the reasons on either side in time of danger may seem to prepon derate, but of manifest and overruling necessity, are they voluntary, in the sense that a jettison of goods or the cutting away of ship's apparel, with the deliberate purpose of preventing a loss of another and more serious and extensive kind, not yet realized nor certain to be realized, though apparently imminent, is voluntary? One would hardly say so; and yet it seems clear from the first few lines of the inference drawn by Mr. Arnould from his second proposition that, in his opinion, expenditure, to be the subject of general average contribution need not be voluntary in any sense incompatible with its being also imperative on the master on account of particular average already sustained. For this position he refers to a very wary notice of the point by Stevens, pp. 22, 23, and to a passage in Benecke, p. 193, who says, "that if

an

Commercial, Nos. 739, 740; Locré Esprit du Code de Commerce, Liv. 2, Tit. Des Avaries, art. 400; Lemonnier, Polices d'Assurance Maritime, vol. 2, p. 108, Bedarride, Commentaire du Code de Commerce (Maritime), No. 1676, and Dubernad, the learned translator and annotator of Benecke, vol. 1, p. 607, are clear and unhesitating. All these writers hold that expenses, to be the subject of general average. must be the result of acts voluntarily done, or resolutions voluntarily taken for the common safety, in time of danger, and incurred to repair damage, or to meet liability, of which the mind and agency of man have been the realizing cause. Casaregis, consulted on the question, whether the extraordinary expenses of a ship, which, having contracted a suspicion of infection by anchoring in the harbour of Marseilles during the prevalence of the plague there, had, on that account, been denied admitance to the ports of Spain, and which, after wandering some time about the Mediterranean, finally, in pursuance of a resolu tion to submit to the cost and delay of a quarantine, went into the port of Toulon, and was there, at a great sacrifice of time and money, detained,―had been rightly decided not to be the subject of general average contribution; among other answers, all of them pertinent to this question, gives the following one :- -"Minusque altera valet objectio quæ inititur cuidam asserto consilio vulgo germinamento in navi habito, cum ministeriis et vectoribus, ex quo prætendit ipse navarchus, fuisse per omnes deliberatum, oras Hispanicas deserendas et renavigandam fore ut alibi invenire posset portum seu locum, in quo ad purgationem vulgò quarantina reciperetur et per consequens quod ob talem deliberationem communiter in navi captam, evagatio huc illuc per mare, et demum diuturna permanentia in portu Telonensi non merè fatalitati, sed voluntati et electioni quoque navis magistri, tribuenda sit. Huic enim objectioni dupliciter respondetur; primò consilium hujusmodi operari tum demum duntaxat, cum nullum adhuc navi damnum evenerit, quia semper deliberatio aliquid damnum aut noxium navi inferendi, eo tendere debet, ut navis et merces ab imminente vel majore damno aut periculo liberaretur. Verum cum consilium capitur postquàm casus fortuitus aut damnum evenit, ut in specie nostra factum est, postquam scilicet, jam suspicione pestis notata erat navis et repulsa ab oris Hispanicis, adeòque desperata jam omni ad portus admissione, errare coacta, e in mari degere aut ad Provinciæ infectos

intermediate port must be entered because the vessel, in consequence of a particular damage sustained, is unfit to prosecute her voyage, as when masts, sails, or other requisite apparel are lost in a storm, or the vessel has sprung a dangerous leak, all the expenses of entering the port are a subject of general average, being the consequence of a measure voluntarily taken for the preservation of the whole."

See also

Baily on Average, pp. 28, 119. In England this doctrine leans upon Mr. Arnould's acceptance of it. The opinions of men of business not caring to distinguish accurately between the law of one country and the law of another, the judgment of Lord ELLENBOROUGH, in Plummer v. Wildman, the decisions in conformity with that judgment of the courts of the United States, the practice of the French Amirautés under the empire of the Ordinance, and of some of the French tribunals in our time (see Rogron Code de Commerce, art. 403, Lemonnier, Polices d'Assurance Maritime, vol. 2, 113), and the text of the primeval Rhodian Code, Pardessus Collection de lois Maritimes, cap. 7, tit. x, and note, may be vouched in its favour; but it is reconcileable with the principle of that code, as modified by the equity of the Roman Lawgiver. Against it, the conclusions of Boulay Paty, Cours de Droit Commercial Maritime, vol. 4, p. 458; Pardessus, Cours de Droit