30. The Policy and Its Provisions as to Risk and Perils Insured

20. General average contribution is a contribution by all the parties in a sea adventure to make good the loss sustained by one of their number on account of sacrifices voluntarily made of part of the ship or cargo to save the residue and the lives of those on board from an impending peril, or for extraordinary expenses necessarily incurred by one or more of the

parties for the general benefit of all the interests embarked in the enterprise.1

Antiquity and Nature

This is one of the earliest known subjects of maritime law. It can be traced back through the Roman law to the Rhodian law, which prevailed before Lycurgus laid the foundations of Spartan, or Solon of Athenian, greatness.

"Lege Rhodia cavetur ut si levandæ navis gratia jactus mercium factus est, omnium contributione sarciatur quod pro omnibus datum est."

If, in a storm, the ship must be lightened in order to save her and her contents, and a part of the cargo is thrown overboard for the purpose, the ship, her freight money, and the remaining cargo must contribute to indemnify the owner of the goods sacrificed; in other words, the ship and cargo are looked upon as a single maritime venture, and the loss is averaged on all. This instance of general average by the throwing of goods overboard, or by throwing over parts of the ship for the same purpose, like anchors, boats, masts, etc., is called "jettison." 2 But there are many other forms. Suppose, for example, a master, for the common safety of all interests, voluntarily strands his vessel. The salvage for getting her off would be a subject of general average, as also her value, in case she was not saved, but the cargo was saved.3

The principle applies as among underwriters on a vessel not intended for cargo, as a tug, or a vessel in ballast. Al

1 Quoted from the STAR OF HOPE, 9 Wall. 203, 19 L. Ed. 638. See, also, the definition in the Jason, 225 U. S. 32, 32 Sup. Ct. 562, 56 L. Ed. 969.

§ 20. 2 Montgomery v. Insurance Co., [1901] P. D. 147; May v. Keystone Yellow Pine Co. (D. C.) 117 Fed. 287.

3 Columbian Ins. Co. v. Ashby, 13 Pet. 331, 10 L. Ed. 186.

4 So decided as to a tug by Judge Addison Brown of New York, acting as arbitrator in the matter of the Hercules, February 11, 1903. As to vessels in ballast or without cargo, see Greely v. Tremont

so among underwriters on different interests, where there is a common ownership of vessel and cargo."

Stranding

Some of the closest questions in general average arise when the issue is whether the stranding is voluntary, which would be a case of general average, or involuntary, which would be a peril of the sea, to be borne by the party who suffers from it. A notable case on this subject is Barnard v. Adams, where a ship that had broken from her moorings in a storm was stranded intentionally by the master in such a way that the cargo could be saved. The grounding was inevitable, but the master chose the best place that he could reach, instead of letting her drift.

In the STAR OF HOPE,' fire was discovered upon a vessel, in consequence of which she made sail for the Bay of San Antonio, which was the easiest port to reach. On arrival there she waited some time for a pilot to guide her into the bay, but none came, and, the fire increasing, and destruction being inevitable if he remained outside, the master endeavored to take her in himself, having in his mind the risk of grounding in the attempt. In doing so she struck upon a reef accidentally. The court held that it was a case for general average, though he did not run her upon that special reef intentionally, as he purposely took the chance of grounding in making harbor, and by his act a large portion of the common venture was saved.

On the other hand, in the Major William H. Tantum,' where the vessel grounded without the master's intending to do so, and in no better place than if he had not slipped Ins. Co., 9 Cush. (Mass.) 415; Potter v. Ocean Ins. Co., 3 Sumn. 27, Fed. Cas. No. 11,335; Steamship Carrisbrook Co. v. London, [1902] 2 K. B. 681.

5 Montgomery v. Indemnity Mutual Ins. Co., [1902] 1 K. B. 734. 10 How. 270, 13 L. Ed. 417; Norwich & N. Y. Transp. Co. v. Insurance Co. of North America (D. C.) 118 Fed. 307; Id., 129 Fed. 1006, 64 C. C. A. 610.

79 Wall. 203, 19 L. Ed. 638. 81 C. C. A. 236, 49 Fed. 252.

her cable, and with no benefit in the final result, it was held that general average could not be enforced.

REQUISITES OF GENERAL AVERAGE

21. To give the right to a general average contribution, the sacrifice

(a) Must be voluntary, and for the benefit of all.

(b) Must be made by the master, or by his authority. (c) Must not be caused by any fault of the party asking the contribution.

(d) Must be successful.

(e) Must be necessary.

The Sacrifice must be Voluntary, and for the Benefit of All If a mast is carried away by a storm, that is a peril of the sea-one of the risks which the ship carries, and which she cannot ask any other interest to aid her in bearing. If, in consequence of a storm, and without negligence on the part of the ship or her crew, water reaches the cargo, and injures it, that must be borne by that part of the cargo alone which is injured. There is nothing voluntary about either of these cases. If a ship springs a leak at sea, and puts into port, and has to unload and afterwards reship the cargo, the expenses of repairing the leak must be borne by the ship, and cannot be charged as average. Such a charge would be for the benefit of the ship alone, not for the benefit of all. In such case the expense of handling the cargo would not come into the average under the English decisions, but would under the American."

Temporary repairs, of no lasting value to the shipowner, and enabling the vessel to complete her voyage, are a proper subject of general average.10

9 STAR OF HOPE, 9 Wall. 203, 19 L. Ed. 638; Hobson v. Lord, 92 U. S. 397, 23 L. Ed. 613; Svensen v. Wallace, 10 A. C. 404.

10 Shoe v. Craig (D. C.) 189 Fed. 227; Shoe v. George F. Craig & Co., 194 Fed. 678, 115 C. C. A. 72; Congdon on General Average, 119.

On the same principle, flooding the compartments of a vessel, with the result of diminishing the damage to the cargo, may be the subject of general average.1

11

In Anglo-Argentine Live Stock & Produce Agency v. Temperley Shipping Co.,12 there was a deck cargo of live stock to be carried from Buenos Ayres to Deptford under a contract which required that the ship should not call at any Brazilian port before landing her live stock, the reason being that, if she did, the cattle could not be landed in the United Kingdom. After sailing, the ship sprang a leak, and the master, for the safety of all concerned, put back to Bahia. Consequently the cattle could not be landed in England, and had to be sold elsewhere at a loss. It was held that this loss was a proper subject of general average.

In Iredale v. China Traders' Ins. Co.,13 a cargo of coal on a voyage from Cardiff to Esquimault became heated, so that the master had to put into a port of refuge, and land the coal. On landing a survey was held upon it, and it was found incapable of being reloaded, and hence was sold. Thereupon the voyage was abandoned, and the freight was lost. The freight underwriters claimed that under these circumstances freight should be the subject of general average, but the court held otherwise, as the coal had really become worthless, not from any act of the master in going into port, but from internal causes, and therefore it was not a voluntary sacrifice.

It must be Made by the Master, or by his Authority

The powers of the captain are necessarily extended. His owners may be scattered, or inaccessible. He may not know who are the owners of the cargo. His voyage may

11 Wordsworth (D. C.) 88 Fed. 313.

12 [1899] 2 Q. B. 403.

13 [1899] 2 Q. B. 356; Id., [1900] 2 Q. B. 515. See, also, Greenshields v. Stephens, [1908] A. C. 431 (allowed for damage caused by water to other cargo; water having been used by master's consent in extinguishing the fire).