the master of a ship, except in case of his disability, or of an overruling necessity, when it may be made by any other person.

3 Kent's Commentaries, 233.

General average.

387. Except as hereinafter provided, all losses caused by jettison, and all damage done to ship or freight,' or both, by the master, or by his orders, when necessary for the physical safety of the ship or cargo,2 as also the consequential damage resulting therefrom, and the expenses incurred for the same purpose, are general average."

1 In addition to exceptions mentioned in the following Articles, the German Mercantile Law excepts goods not represented by bill of lading or manifest, and money and valuables of which the master was not notified. § 710, sub. 2, 3.

2 As to whether this should be extended to sacrifices for the common benefit in other cases, see note to Article 384.

The question has been raised whether general average contribution is due when the danger originates in the mismanagement or fault of the master or owner of the cargo, or a third person. Some Codes provide, and among them the new German Code, that contribution shall in such case take place, but the party at fault shall not receive anything, but shall be liable to reimburse the other contributors." Marvin. Report on Int. Gen. Ave.

Loss, how borne.

388. A general average loss,' when lawfully made, must be borne in due proportion by all that part of the ship, appurtenances, freightage and freight, for the benefit of which the sacrifice was made, and which was really saved,' as well as by the owner of the thing sacrificed.

1

3

By the German General Mercantile Law, § 707, a claim for damage belonging to general average is only so far set aside by a particular average subsequently affecting the damaged article, (whether it be again damaged or totally destroyed,) as it is proved that the latter misfortune not only was in no way connected with the former, but that it would also have resulted in the former damage if this had not already been occasioned.

If, however, before the occurrence of the latter misfortune, steps should already have been taken to reinstate the damaged article, then the claim

for reimbursement holds good as far as such steps are concerned. See Barnard v. Adams, 10 Howard's U. S. Sup. Ct. Rep., 270, 303.

2 German General Mercantile Law, § 705. It is added there in §§ 706 and 7, that the obligation to contribute to general average from an article saved, is not annulled because the article is subject subsequently to particular average, unless it is totally destroyed.

That Code also provides that ammunition and provisions of the ship, wages and effects of crew, and baggage of passengers do not contribute. § 725.

3 Lee v. Grinnell, 5 Duer's (New York) Rep., 431; Simonds v. White, 2 Barnewall & Cresswell's Rep., 805. But by the German Mercantile Law, an average loss does not in general constitute a personal liability. § 728.

Loss, how adjusted.

389. The proportions in which a general average loss is to be borne must be ascertained by an adjustment, in which the owner of each separate interest is to be charged with such proportion of the value of the thing lost as the value of his part of the property affected bears to the value of the whole. But an adjustment made at the end of the voyage, if valid there, is valid everywhere.'

3 Kent's Commentaries, 232.

1 Simonds v. White, 2 Barnewall & Cresswell's Rep., 805.

The German General Mercantile Law (§§ 711, &c.,) contains provisions regulating the adjustment in detail.

Consular power.

390. A nation may give to its consuls power to adjust averages and regulate repairs, in the case of ships of such nation coming within the country of the consul's residence, when such acts are demanded by a party concerned who has no domicil in the country, and there is no agreement between the parties for a different mode of adjustment, or regulation of repairs.

But a consular adjustment, or average, or regulation of repairs, made under this article, does not bind any person who is either domiciled in the country, or a member of a third nation, unless he consents to the submission to the consul.

Suggested by the treaty between the United States and France, Feb. 23, 1853, Art. X., (10]U. S. Stat. at L., 998,) which provides that consuls shall

receive the declarations, protests, and reports of all captains of vessels of their nation, in reference to injuries [avaries] experienced at sea. They shall examine and note the storage. . . . In the absence of a stipulation to the contrary between owners, freighters, and insurers, they shall be charged with the repairs [regler ces avaries.] . . . If inhabitants of the country or members of a third nation are interested, and the parties cannot agree, the local authorities shall decide.

To the same effect is the provision in the treaty between the United States and

Belgium, Dec. 5, 1868, Art. XIII., U. S. Cons. Reg., (1870,) ¶ 511.
Italy, Feb. 8, 1868, XIV., 15 U. S. Stat. at L., (Tr.,) 185.

And as to consular power to settle damage to effects and merchandise shipped in such vessels, see treaty between the United States and New Granada, May 4, 1850, Art. III., 10 U. S. Stat. at L., 900.

Jettison of deck cargo.

391. A jettison of timber or deals, or any other description of wood freight, carried on the deck of a ship, in pursuance of a general custom of the trade in which the ship is then engaged, must be made good as general average, in like manner as if such freight had been jettisoned from below deck.

No jettison of deck freight, other than timber or deals, or other wood so carried, is to be made good as general average.'

Every structure, other than mast, spars and rigging, not built in with the frame of the ship, below deck, is to be considered a part of the deck of the ship.

This and the ten following articles are from the Report prepared by Judge WILLIAM MARVIN, in the Proceedings of the International Congress held at York, England, September, 1864, for the purpose of promoting a uniformity in the mode of adjusting general averages in the different countries of the world.

1 The American rule is, that the owner of things stored on deck, in case of their jettison, is entitled to the benefit of a general average contribution only in case it is usual to stow such things on deck upon such a voyage. Lawrence v. Minturn, 17 Howard's U. S. Sup. Ct. Rep., 100; Sayward ». Stevens, 3 Gray's Rep., 97; Smith v. Wright, 1 Caines' Rep., 43; Lenox v. United Ins. Co., 3 Johnson's Cases, (New York,) 178; Harris v. Moody, 4 Bosworth's (New York) Rep., 210; Gould . Oliver, 4 Bingham's Rep., (N. C.,) 134; S. C., 2 Manning & Granger's Rep., 208; Milward v. Hibbert, 3 Queen's Bench Rep., 120.

The German General Mercantile Law, (§ 710,) recognizes, as an exception, deck cargo in the coasting trade, when allowed by law.

Damage by water and breakage.

392. Damage done by water which unavoidably goes down a ship's hatches opened, or other opening made for the purpose of a jettison, must be made good as general average, in case the loss by jettison is so made good.'

Damage done by breakage and chafing, or otherwise, from derangement of stowage consequent upon a jetison, must be made good as general average.

2

1 Such damage is considered as an accessory of the jettison, or the immediate direct consequence of making the jettison. German Code, § 708; French Code, § 400; Holland Code, § 699; Baily, 171; 13 Peters' U. S. Sup. Ct. Rep., 343; Phillips, § 1286.

2 This damage is rejected by the average adjusters in England and Belgium.

To similar effect, however, is the consular convention between France and

Portugal, July 11, 1866, Art. XV., 9 De Clercq, 582.

Treaty between France and

Peru, Mar. 9, 1861, Art. XXXII., 8 De Clercq, 193.

Convention between the United States and

Italy, Feb. 8, 1868, Art. XIV.. 15 U. S. Stat. at L., (Tr.,) 185.

Extinguishing fire on shipboard.

393. Damage done to a ship and freight, or either of them, by water or otherwise, in extinguishing a fire on board the ship, is the subject of general average.

This damage is rejected from general average in England, and admitted in the United States, Holland and Belgium. Baily, 81; 5 Duer's (New York) Rep., 310; 25 Pennsylvania Rep., 366.

Cutting away wreck.

394. Loss caused by cutting away the wreck or remains of spars, or of other things which have previously been carried away by sea peril, is not to be made good as general average.

This damage is not allowed in general average in England or the United States. It is allowed in France. So by the German Mercantile Law, § 708.

In Belgium, in practice, one-third the value is considered as general average, one-third particular, and one-third new for old.

In Holland, the value of the wreck, as such, is contributed for.

Voluntary stranding.

395. When a ship is intentionally run on shore because she is sinking, or driving on shore or rocks, the damage caused to the ship, the freight, and the freightage, or any of them, by such intentional running on shore, is not to be made good by general average.

The question, says Marvin, (Report on Int. Gen. Ave.,) has never been decided by the courts of England, but the uniform practice of the average adjuster is to disallow this loss or damage in general average. Baily, 75.

In France and Spain, it is allowed in general average, provided the ship is got off with her cargo on board, or if, the cargo having been landed, she takes her cargo again on board, and proceeds to a port of refuge, or resumes her voyage. M. Cauvet, §§ 345-7.

But if the ship is lost, there is no contribution. The Marine Ordinance of Louis XIV. declares that if the jettison does not save the ship, there is no ground for contribution. Valin, Liv. 3, Tit. 8; Du jet et de la contribution ; Spanish Code, Art. 933.

The new German Code, § 708, declares that damages caused by a voluntary stranding, in order to avoid capture or sinking, are general average; but if the stranding was in order to avoid sinking, and the ship is not got off, or, after being got off, is found incapable of repair, the damage is not general average.

The Maritime Codes of Holland, Norway, Sweden, Denmark, and the United States, all make damage caused by voluntary stranding general average, and this without regard to the question whether the ship is subsequently refloated or not. Adams v. Barnard, 10 Howard's U. S. Sup. Ct. Rep., 270; Columbian Ins. Co. v. Ashby, 13 Peters' U. S. Sup. Ct. Rep., 331.

Carrying a press of sail.

396. Damage occasioned to a ship or freight, by carrying a press of sail, is not to be made good by general average.

Covington v. Roberts, 2 Bosanquet & Puller's Rep., 378; Fignet, 390, 394; Cauvet, § 352. The German Mercantile Law adds, (§ 709,) “when the press of sail was carried to avoid stranding or capture."

Port of refuge expenses.

397. When a ship shall have entered a port of refuge, under such circumstances that the expenses of entering the port are admissible for general average, and when she shall have sailed thence, with her original freight, or a part of it, the corresponding expenses of leaving