[power is never, in fact, exercised in his country (f). Indeed, where Chap. 1. contribution is to be made according to the price of the goods at the place of destination, the exercise of this power is incompatible with the mode of adjustment (g). In this country, which has no peculiar forum established for these matters, but in which the practice of insurance is very general, it is usual for the broker, who has procured the policy of insurance, to draw up an adjustment of the average, which is commonly paid in the first instance by the insurers without dispute. In case of dispute, the contribution may be recovered either by a suit in equity (h), or by an action at law (i), instituted by each individual entitled to receive, against each party, that ought to pay, for the amount of his share (k). But a court of equity will not at the instance of the sufferer restrain the master from parting with the goods of the other merchants if he thinks fit to do so (1). And in the case of a general ship, where there are many consignees, it is usual for the master, before he delivers the goods, to take a bond from the different merchants for payment of their portions of the average when the same shall be adjusted (m).]

The consignee, if he be the owner of the goods, is of course chargeable, but not in respect of the mere receipt of them under a bill of lading, unless it be made a condition in the bill of lading that he shall be so (n).

[It has been already observed, that in many foreign countries, some losses and expenses are held to be the subject of general average, which are not so held in the law of England, the decisions of our courts being in general founded on a more strict conformity to the principle of the Rhodian law, and confining this general contribution to voluntary sacrifices, or to matters in the nature thereof, or consequent thereupon.]

În Fletcher v. Alexander, 37 L. J. C. P. 193, BOVILL, C. J., said, "But in the application of the rule, different countries have adopted different rules with regard to almost every point connected with the statement of average. Upon the general principle all are agreed, but in consequence of those differences in the application of it in the laws of different countries, it became necessary to ascertain and determine what law was to prevail when a vessel started from a port in one country, and its destination was another, or where the adventure.

(m) [So deposed by a gentleman very con versant with this business in the case of Myer v. Vander Deyl, Guildhall Sitting, before Lord ELLENBOROUGH, Ch. J., Dec., 1803.] See form in the Appendix. A shipowner, where a general average loss has occurred, may be liable to an action for damage for delivering up the cargo without taking the necessary steps for procuring an adjustment of the general average and securing its payment. Crookes v. Allen, L. R. 5 Q. B. D. 38; 49 L. J. Q. B., &c., 201.

(n) Scaife v. Tobin, 3 B. & Ad. 523.

Part VI. came to an end in some intermediate port. And it has now become the adopted and settled law of this country, and I believe of most other countries-indeed every other country, as far as I am awarethat the adjustment must take place according to the law of the port where the adjustment is to be settled. If the vessel reaches her ultimate destination, the adjustment must take place according to the law of the port where she so arrives. If the adventure comes to an end, and the voyage is broken up, as it is termed in some of the books (which sufficiently expresses it), at some other port, the adjustment must take place at that place, and according to the law of that place. Where the adjustment is to take place in the port of ultimate destination, there seems to be no doubt as to what the law is in that case with regard to the application of the principle, and the value upon which the contribution is to be made." I take the rule as stated in Mr. Serjeant MARSHALL'S book again, p. 502: "In cases of general average, the things saved contribute, not according to the prime cost, but according to the price for which they may be sold at the time of settling the average. Non quanti empta sunt, sed quanti veniri possunt is the rule of the Rhodian Law. The same is adopted in the Laws of Wisbuy." And with regard to the adjustment at the place of destination, when the goods are delivered, and the freight has been earned, and the liability has been incurred, there the goods which arrive are taken upon the value at the port of destination, and that necessarily includes the freight which has been paid upon them. You have to ascertain the value. That being ascertained, the goods which arrive contribute accordingly. If however, after the jettison, or the matter which is the subject matter of average, has arisen, the remainder of the goods are totally lost, so that they are of no value, and the person whose goods they were has not sustained, in the result, any benefit from the jettison, then, according to the law, no contribution can be claimed by the owner of the jettisoned goods, nor are the owners of the other goods in the ship bound to make any contribution. The whole law is framed upon the principle of there being a loss to one and a benefit to the other, and the contribution being in strict proportion according to the loss sustained and the benefit derived" (a).

Cases on policies of insurance.

[It has been decided by the Court of King's Bench, that a merchant who had paid a contribution to an average settled in Portugal should not recover the amount on a policy of insurance in the usual form, it not being proved that the adjustment was made according to the known law and usage of the foreign country, otherwise than by a recital in the decree of the foreign tribunal, by which the average had been settled, and which the court did not deem to be sufficient evidence of that fact (b).]

(a) Sec Simmonds v. White, 2 B. & C. 805. Mavro v. Ocean Marine Ins. Co., post, p. 535; Hill v. Wilson, 48 L. J. C. P. 764; L. R. 4 C. P. D. 329. Walpole v. Ewer, Park, 629. Newman v. Cazalet, id. 630.

(b) [Power v. Whitmore, 4 M. & S. 141.] See Harris v. Scaramanga, 41 L. J. C. P. 178, per BRETT, L. J., Dent v. Smith, 38 L. J. Q. B. 144. Rosario Messina v. Eustachio Petrococchino, 41 L. J. P. C 27.

If by an English policy of insurance the contract is "to pay general Chap. 1. average as per foreign statement" the general average must be made up by a foreign adjuster according to the foreign law (c).

Where goods insured under a policy against loss by jettison have been lost by jettison, the underwriters are liable under the policy for the whole of the insured value of the goods jettisoned, notwithstanding the assured may have a right to contribution against the owners of the other interests at risk. After payment under the policy the underwriters would be entitled to the rights of the assured to such contribution (d).

Where parties, in order to ascertain average contribution in dis- Action for pute, agree that an average adjuster for reward shall ascertain and negligence against adjust the amount and agree to abide by his decision, such average average adadjuster, having given his decision, is not liable to an action for care- juster. lessness, negligence and unskilfulness, if he has acted in good faith (e).

(c) Harris v. Scaramanga, 41 L. J. C. P. 170, L. R. 7 C. P. 481; Hendricks v. Australasian Ins. Co., 43 L. J. C. P. 188; Mavro v. Ocean Marine Ins. Co., 43 L. J. C. P. 339; 9 C. P. 595; 10 C. P. 414; Greer v. Poole, L. R. 5 Q. B. D. 272. As to recovering in an action on a policy, average expenses under the suing and

labouring clause, see Aitchison v. Lohre,
49 L. J. Q. B. &c., 123.

(d) Dickinson v. Jardine, 37 L. J. C. P.
321; L. R. 3 C. P. 639.

(e) Tharsis Sulphur and Copper Co. Limited v. Loftus, 42 L. J. C. P. 6; L. R. 8 C. P. 1.

Part VI.

CHAPTER II.

OF SALVAGE; AND HEREIN.

SECTS. 1. Of Salvage generally, p. 536.

2. Of Salvage at Common Law, p. 537.

3. Of the Jurisdiction of the High Court of Admiralty and the Rates of Salvage awarded by it in Cases of Salvage of Ships in Distress at Sea and of Derelict, p. 539.

4. Of Salvage by Chartered Ship; Salvage Agreements; Salvage between Ships belonging to the same Owner, or engaged as Consorts in the same Adventure; Salvage by Persons employed to render other than Salvage Service; Salvage of Ships damaged by Collision with the Ships of those claiming from them Salvage remuneration; Salvage by licensed Pilots, p. 547.

5 Of Salvage by the Crews of the Royal Navy, p. 550.

6. Of the Apportionment of Salvage Reward among those engaged in the Salvage Service, p. 551.

7. Of Salvage for Preservation of Life, p. 556.

8. By whom and in respect of what Interests Salvage is payable, p. 557.

9. Proceedings in Admiralty, p. 559.

10. Appointment and Duties of Receivers, under 17 & 18 Vict. c. 104, p. 559.

11. Of Salvage in the United Kingdom; Jurisdiction of Justices, &c., p. 561. 12. Of Salvage within the Jurisdiction of the Cinque Ports, p. 565.

13. Of Salvage on Recapture, p. 567.

14. Of Salvage of Ships and Merchandise found in Possession of Pirates, p. 572.

1. Of Salvage generally.

[Ir seems proper in the next place to consider a subject which the dangers of navigation frequently render alike interesting to the shipowner and to the merchant; namely, the compensation that is to be made to other persons, by whose assistance a ship or its lading may be saved from impending peril, or recovered after actual loss. This compensation is known by the name of salvage, and at present is commonly made by payment in money; but in the infancy of commerce was more frequently made by the delivery of some portion of the specific articles saved or recovered.

All foreign codes of maritime law, both ancient and modern, contain provisions and enactments on this head (a). In some of them, the value to be paid is fixed at a certain portion of the articles saved, or of their value, according to their nature and quality, or the cir-]

(a) See the Calypso, 2 Hagg. 218.

[cumstances of the case. But it is obvious that positive and settled Chap. 2. rules are little adapted to the administration of justice in varying and unsettled cases; and what can be more various and unsettled than the degrees of labour experienced on the ocean, or the degrees of peril to which persons who engage in the meritorious task of assisting the distressed on that element, are at different times exposed? And therefore, in the case of wreck or derelict at sea, the law of England, like the law of some other countries, has fixed no positive rule or rate of salvage, but directs only, as a general principle, that a reasonable compensation shall be made. The legislators of all civilized and commercial states in modern times (b) have laboured earnestly to repress, by due severity of punishment, the barbarous spirit of plundering the helpless and distressed mariner, whose situation calls for assistance and relief. And very salutary provisions have been made on this subject by the wisdom of our own Parliaments (c), but which I shall forbear to detail, as not properly belonging to my subject, and proceed to the consideration of salvage; first, with regard to effects preserved from the perils of the sea; and, secondly, with regard to effects retaken from an enemy, into whose hands they may have fallen.]

As to compensation for labour incurred in consequence of signal of distress improperly made, see 36 & 37 Vict. c. 85, s. 18.

2. Of Salvage at Common Law.

[A person, who by his own labour preserves goods which the owner, or those entrusted with the care of them, have either abandoned in distress at sea, or are unable to protect and secure, is entitled by the common law of England to retain the possession of the goods saved, until a proper compensation is made to him for his trouble (d). This compensation, if the parties cannot agree upon it, may by the same law be ascertained by a jury in an action brought by the salvor against the proprietor of the goods (e) or the proprietor may tender to the salvor such sum of money as he thinks sufficient, and upon refusal to deliver the goods, bring an action against the salvor; and if the jury think the sum tendered sufficient, he will recover his goods or their value and the costs of his suit. But a person, even though he may be the lord of the manor, cannot entitle himself to a claim of salvage by taking possession of a wreck or parts]

(b) [I have used the words "in modern times," because, formerly, the claim of the sovereign power in some countries was not less barbarous than the temper of the inhabitants. See Valin's preface to tit. 9 of book 4, of the French Ordinance.]

(c) [See the statutes 3 Edw. 1, c. 4; 4 Edw. 1, stat. 2, s. 2; 12 Anne, stat. 2, c. 18; 26 Geo. 2, c. 19, and 1 & 2 Geo. 4, c. 75 and 76; 1 Black. Com. chap. 8, s. 11.]

(d) [Hartford v. Jones, 1 Lord Raym. 393.] Nicholson v. Chapman, 2 Hen. B. 257. Aitchison v. Lohre, 49 L. J. Q. B. &c., 123. Newman v. Walters, 3 B. & P. 612. Baring v. Day, 8 East, 57. Kingston v. Wendt, 45 L. J. Q. B. 440. As to abandoning lien by agreement, see sect. 497; as to abandoning lien by taking a salvage bond, see sects. 486-496.

(e) Lipson v. Harrison, 2 W. R., Q. B. 10.