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a remedy, but might bring an action either against | such a case, be ascribable to the owners, who him or the owners.

The laws of different states, and the opinions of the ablest jurists, vary as to whether the loss incurred in defending a ship against an enemy or pirate, and in the treatment of the wounded officers and men, should be made good by general or particular average. The Ordinance of the Hanse Towns (art. 35), the Ordinance of 1681 (liv. iii. tit. 7, s. 6), and the Code de Commerce (art. 400, s. 6), explicitly declare that the charges on account of medicine and for attendance upon the officers and seamen wounded in defending the ship, shall be general average. A regulation of this sort seems to be founded on reason. But other codes are silent on the subject; and though the contrary opinion had been advanced by Mr. Serjeant Marshall, and by Mr. Justice Park in the earlier editions of his work, the Court of Common Pleas has unanimously decided that in England neither the damage done to a ship, nor the ammunition expended, nor the expense of healing sailors wounded in an action with an enemy or pirate is a subject of general average. (Abbott, On the Law of Shipping, pt. iii. ch. viii.)

The general safety of the whole adventure must also be a motive for the sacrifice, for if a captain of a ship, on the point of capture, threw overboard a quantity of dollars, not to save the ship and cargo, but merely to prevent the dollars from getting into the enemy's hand; this is not such a jettison as would entitle the owner of the dollars to a general average contribution. (Arnould, p. 773.)

besides defraying every expense, should be liable in damages to the freighters for the delay that would necessarily take place in completing the voyage, and for whatever damage might be done to the cargo.

6

These, however, are merely the conclusions to which, as it appears to us, those must come who look only to principles. The law with respect to the points referred to differs in different countries, and has differed in this country at different periods. A doubt,' says Lord Tenterden, was formerly entertained as to the expenses of a ship in a port in which she had taken refuge, to repair the damage occasioned by a tempest; but this has been removed by late decisions. And it has been held, that the wages and provisions of the crew during such a period must fall upon the ship alone. But if a ship should necessarily go into an intermediate port for the purpose only of repairing such a damage as is in itself a proper object of general contribution, possibly the wages, &c. during the period of such detention, may also be held to be general average, on the ground that the accessory should follow the nature of its principal.' (Law of Shipping, pt. iii. ch. viii.)

Perhaps the reader who reflects on the vagueness of this passage will be disposed to concur with Lord Tenterden's remark in another part of the same chapter, That the determinations of the English courts of justice furnish less of authority on this subject (average) than on any other branch of maritime law.'

The question, whether the repairs which a ship undergoes that is forced to put into an intermediate Some goods are excepted, giving no claim to port ought to be general or particular average, contribution, as those of which there is no bill of has created a great diversity of opinion; but the lading; those taken on board by the captain con- principles that ought to regulate our decision with trary to the charter-party; and especially those respect to it seem pretty obvious. Injuries carried on deck, unless there is a usage and custom voluntarily done to the ship, as cutting away for such carriage. Thus timber cast overboard masts, yards, &c., to avert some impending danger, is held to be entitled to average, as were also are universally admitted to be general average. some pigs carried between Waterford and London. It seems, however, hardly less clear, and is, indeed, Much doubt has been entertained, whether ex- expressly laid down by all the great authorities, penses incurred by a ship in an intermediate port that injuries done to the ship by the violence of in which she has taken refuge, should be general the winds or the waves should be particular averaverage or fall only on the ship. But on principle age, or should fall wholly on the owners. The at least, it is clear, that if the retreat of the ship ship, to use the admirable illustration of this printo port be made in order to obviate the danger of ciple given in the civil law, is like the tool or foundering, or some other great and imminent instrument of a workman in his trade. If in doing calamity, the expenses incurred in entering it, his work he break his hammer, his anvil, or any and during the time she is forced by stress of other instrument, he can claim no satisfaction for weather, or adverse winds, to continue in it, this from his employer. (Dig. lib. xiv. tit. 2, s. 2.) ought to belong to general average. But if the The owners are bound, both by the usual conretreat of the ship to port be made in order to ditions in all charter-parties, and at common law, repair an injury occasioned by the unskilfulness to carry the cargo to its destination; and they of the master, or in consequence of any defect in must consequently be bound, in the event of the her outfit, such, for example, as deficiencies of ship sustaining any accidental or natural damage water, provisions, sails, &c., with which she ought during the voyage, either to repair that damage to have been sufficiently supplied before setting at their own expense, or to provide another vessel out, the expenses should fall wholly on the owners. to forward the goods. In point of fact, too, such When a ship (supposed to be seaworthy) is forced subsidiary ships have often been provided; but it to take refuge in an intermediate port, because of a has never been pretended that their hire was a loss occasioned by a peril of the sea, as the spring-subject of general average, though it is plain it ing of a mast, &c., then, as the accident is not has quite as good a right to be so considered as ascribable to any fault of the master or owners, the cost of repairing the damage done to the ship and the retreat to port is indispensable for the by a peril of the sea. Hence when a ship puts safety of the ship and cargo, it would seem that into an intermediate port for the common safety, any extraordinary expense incurred in entering it the charges incurred in entering the port, and down should be made good by general average. to the earliest time that the wind and weather become favourable for leaving it, ought to be general average; but the repair of any damage she may have sustained by wear and tear or by the mere violence of the storm, or an accidental peril, and the wages of the crew, and other expenses incurred after the weather has moderated, should fall wholly on the owners.

Supposing, however, that it could be shown that the ship was not, at her outset, seaworthy, or in a condition to withstand the perils of the sea; that the mast, for example, which has sprung, had been previously damaged; or supposing that the mischief had been occasioned by the incapacity of the master; the whole blame would, in

A recent decision in the case of a British ship that had been obliged to put into port in consequence of an injury resulting from her accidentally coming into collision with another, affirmed that so much of the repair she then underwent as was absolutely necessary to enable her to perform her voyage should be general average. The Judges, however, spoke rather doubtfully on the subject; and it is exceedingly difficult to discover any good grounds for the judgment. (Plummer and another v. Wildman, 3 M. & S. 482.) It seems directly opposed to all principle, as well as to the authority of the laws of Rhodes (Dig. 14, tit. 2), of Oleron (art. 9), of Wisby (art. 12), and to the common law with respect to freight. Lord Tenterden has expressed himself as if he were hostile to the judgment. It is, indeed, at variance with all the doctrines he lays down; and the terms in which he alludes to it, yet in one case,' appear to hold it forth as an exception (which it certainly is) to the course of decisions on the subject.

A late statute, the 5 Vict. 2 sess. c. 17, makes it illegal for ships laden with timber and clearing out from any port in British North America between November 1 and May 1 to have any portion of the cargo on deck. But, with this exception, the propriety of stowing goods on the deck must be determined by the opinions of those engaged in the particular trade in which it may have occurred.

According to the law of England, when a ship is injured by coming into collision with, or running foul of another, if the misfortune has been accidental, and no blame can be ascribed to either party, the owners of the damaged ship have to bear the loss. In cases where a collision has taken place through the fault of one party only, he, of course, is responsible for the consequences; but where both parties are to blame, without its being possible to discriminate the precise culpability of each, the loss or damage is to be defrayed equally by both parties. And this, also, is the rule laid down by the laws of Oleron and Wisby. This rule has been adopted in the United States. and the famous French Ordinance of 1681, in but in this country (Arnould, 792) the case must reference to accidental collisions. The Code de either be considered as overruled or at all events Commerce (art. 407), however, throws the loss renot to be an authority for the rule thus deduced sulting from accidental collisions on the suffering from it. Indeed, Lord Ellenborough himself after-party, harmonising in this respect with the law of wards refers to it as decided on the ground that the England. [COLLISION.] repairs were rendered necessary by a sacrifice of part of the ship for the general safety, and held on the case then before him (Power v. Whitmore) that the expense of repairs can only be a subject of general contribution when rendered necessary by a general average loss. This is accordingly the received rule of law in this country upon the subject.

It is now usual in this country, when a vessel puts into port on account of a damage belonging to particular average, which requires to be repaired before she can safely proceed on her voyage, to allow in general average the expense of entering the port and unloading, to charge the owners of the goods or their underwriters with the warehouse rent and expenses attending the cargo, and to throw the expense of reloading and departure on the freight.

The ship and freight, and everything on board, even jewels, plate, and money, except wearing apparel, contribute to general average. But the wages of seamen do not contribute; because, had they been laid under this obligation, they might have been tempted to oppose a sacrifice necessary for the general safety.

Different states have adopted different modes of valuing the articles which are to contribute to an average. In this respect the law of England has varied considerably at different periods. At present, however, the ship is valued at the price she is worth on her arrival at the port of delivery. The value of the freight is held to be the clear sum which the ship has earned after seamen's wages, pilotage, and all such other charges as come under the name of petty averages, are deducted. It is now the settled practice to value the goods lost, as well as those saved, at the price they would have fetched in ready money, at the port of delivery, on the ship's arrival there, freight, duties, and other charges being deducted. Each person's share of the loss will bear the same proportion to the value of his property that the whole loss bears to the aggregate value of the ship, freight, and cargo. The necessity of taking the goods lost into this account is obvious; for otherwise their owner would be the only person who would not be a loser.

When the loss of masts, cables, and other furniture of the ship, is compensated by general average, it is usual, as the new articles will, in all ordinary cases, be of greater value than those that have been lost, to deduct one-third from the value of the former, leaving two-thirds only to be contributed.

Considerable doubts have existed in regard to the policy of making the loss of goods stowed upon the deck and thrown overboard the subject of general average. The French Ordinance of 1681, proceeding on the assumption that deck stowage is in all cases improper, has expressly excluded goods so stowed from the benefit of such average (Liv. iii. tit. 8, s. 13.) This, however, is plainly a matter in regard to which no invariable rule can be safely laid down; for though, speaking generally, stowage on the deck be improper and dangerous in most distant voyages, it may not be so, at least in certain seasons of the year, and in certain descriptions of vessels, in the coasting or cross-channel | trades, or in over-sea voyages to contiguous countries. And such being the case, the preferable plan would seem to be to leave cases of the jettison of the deck cargo to be decided according to the practice of the peculiar trade in which they may happen to take place. This, too, we infer, though the point has not been judicially determined, is, in fact, the law of England at this moment. Primâ facie, deck goods are excluded from the benefit of The reader will suppose that it became necesgeneral average; but if it can be shown that stow-sary, in the Downs, to cut the cable of a ship age on deck is the usage of the trade in which a destined for Hull; that the ship afterwards struck jettison takes place, and the custom of the parties upon the Goodwin, which compelled the master engaged in it, the general presumption against to cut away his mast, and cast overboard part of the practice would be defeated, and the goods the cargo, in which operation another part was would be admitted to the benefit of general aver-injured; and that the ship being cleared from the age. (Shee's valuable edition of Lord Tenterden's sands, was forced to take refuge in Ramsgate work on the Law of Shipping, pp. 481-489.) harbour, to avoid the further effects of the storm.

But the mode of adjusting an average will be better understood by the following example, extracted from Chief Justice Tenterden's valuable work on the Law of Shipping, pt. iii. ch. viii.:—

Amount of Losses

Goods of A. cast overboard

Damage of the goods of B. by the jettison
Freight of the goods cast overboard-

Price of a new cable, anchor, and mast .
Deduct one third

3001.

1001. S

Expense of bringing the ship off the sands

Pilotage and port duties going into the harbour and out,

and commission to the agent who made the disburse

ments

.

Expenses there

Adjusting this average

Postage

Total of losses

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500

200
100

200

50

100

25

4

1

1,180

maritime states, and is expressly, indeed, provided by the famous Ordinance of 1681 (see liv. iii. tit. 6, s. 47, and the elaborate commentary of M. Valin), that the insurer shall not be liable to any demand on account of average, unless it exceed one per cent. An article (No. 408) to the same effect is inserted in the Code de Commerce; and by stipulation, this limitation is frequently extended in French policies to three or four per cent. A similar practice was adopted in this country in 1749. It is now constantly stipulated in all policies, that upon certain enumerated articles of a quality peculiarly perishable, the insurer shall not be liable for any partial loss whatever; that upon certain others liable to partial injuries, but less difficult to be preserved at sea, he shall only be liable for partial losses above five per cent.; and that as to all other goods, and also the ship and freight, he shall only be liable for partial losses above three per cent. This stipulation is That is, each person will lose 10 per cent. upon the value of his made by a memorandum inserted at the bottom of interest in the cargo, ship, or freight. Therefore, A. loses 304.. Ball policies done at Lloyd's, of the following tenor:

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which is exactly equal to the total to be actually received, and must be paid by and to each person in rateable propoition.

In the above estimate of losses, I have included the freight of the goods thrown overboard, which appears to be proper, as the freight of the goods is to be paid, and their supposed value is taken clear of freight, as well as other charges. In this country, where 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, or by an action at law, instituted by each individual entitled to receive, against each party that ought to pay, for the amount of his share. And in the case of a general ship, where there are many consiguees, 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.'

N.B. Corn, fish, salt, fruit, flour, and seeds are warranted free from average, unless general, or the ship be stranded; sugar, tobacco, hemp, flax, hides, and skins are warranted free from average under 51. per cent.; and all other goods free from average under 31. per cent., unless general, or the ship be stranded.'

This

'The form of this memorandum was universally used, as well by the Royal Exchange and London Assurance Companies as by private underwriters, till 1754, when it was decided that a ship having run aground, was a stranded ship within the meaning of the memorandum; and that although she got off again, the underwriters were liable to the average or partial loss upon damaged corn. decision induced the two companies to strike the words or the ship be stranded out of the memorandum; so that now they consider themselves liable to no losses which can happen to such commodities, except general averages and total losses. The old form is still retained by the private underwriters. [JETSAM; STRANDING.]

The reader is referred for the further discussion of this important subject, to the article MARINE INSURANCE; and to Mr. Stevens's Essay on Average; Abbott On the Law of Shipping, pt. iii. ch. viii.; Marshall On Insurance, book i. ch. xii. s. 7; Park On Insurance, ch. vii.; and Mr. Benecke On the Principles of Indemnity in Marine Insurance; Arnould On Marine Insurance; Pritchard's Admiralty Digest; Smith's Mercantile Law.

International General Average.-It is clear that there is a tendency for the rules of commercial law, and especially that portion which deals with The subject of average does not necessarily make shipping and marine assurance, to become identical a part of the law of insurance; though as insurers, in all civilised communities. Hence all admiralty from the terms of most policies, are liable to in- and naval courts take into account decisions which demnify the insured against those contributions have been given in foreign tribunals, quote cases which are properly denominated general average, which have been adjudicated on, and treat comits consideration very frequently occurs in ques-mercial law with greater or less exactness as part tions as to partial losses. But in order to contine of the law of nations. assurances to that which should be their only object, namely an indemnity against real and important losses arising from a peril of the sea, as well as to obviate disputes respecting losses arising from the perishable quality of the goods insured, and all trivial subjects of difference and litigation, it seems to be the general law of all

The reader is referred especially to the Report of the Social Science Association for 1864, containing the resolutions arrived at by representatives from Belgium, France, Holland, the Hanse Towns, Russia, and the United States.

AVOIRDUPOIS. A weight used in determining the gravity of bulky commodities.

B

BABOOL BARK. The bark of the Acacia arabica is almost exclusively used by the natives of India for tanning purposes, being the only bark which can be obtained throughout the Peninsula in large quantities, and cheap. The price varies from to 2 rupees per maund, about 80 lbs, avoir. BACON AND HAMS. The former is made from the sides and belly of the pig, and the latter from its hind legs. The process of curing may be effected indifferently by the employment of salt or sugar, or both; but the first is by far the most commonly used. After being impregnated with salt or sugar, and allowed to remain a certain time in the solution, the bacon and hams are taken out, dried and smoked. The counties of England most celebrated for bacon and hams, are York, Hants, Berks, and Wilts. Ireland produces great quantities of both; but they are coarse, not so well cured as the English, and much lower priced. Of the Scotch counties, Dumfries, Wig-¦ ton, and Kirkcudbright are celebrated for the excellence of their bacon and hams, of which they export large quantities, principally to the Liverpool and London markets. [PORK.]

BAGGAGE. In Commercial Navigation, the wearing apparel and other articles destined for the sole use or accommodation of the crews and passengers of ships. The following are the principal custom-house regulations with respect to baggage: Baggage and apparel accompanied by the proprietor, worn and in use (not made up for the purpose of being introduced into this country), exempted from all duty on importation.

Baggage, containing no article liable to duty, and arriving by continental steam vessels, may be examined between Gravesend and London, provided the proprietor be present, and see the packages reclosed and labelled by the officer. Such baggage is landed before any other, provided the label be not removed or torn. (Customs Order, Aug. 3, 1853.)

At the outports those passengers having but single packages landed, will have these first examined.

Articles in baggage (not merchandise) subject to duty, will be delivered to passengers, if the duties thereon, and a small fee for passing the entry, be deposited with the person authorised to receive the same.

If unaccompanied, and examined by sight entry, baggage may be delivered on a proper indorsement being made and certified by the examining officer.

If not cleared at the expiration of six months from the date of landing, it is liable to be sold for duty and charges, the residue (if any) to be paid to the right owner on proof being adduced to the satisfaction of the Board.

One rifle or fowling-piece, and one pair of pistols accompanying the party, for private use, free per Customs Order, Sept. 23, 1829. Now duty free.

Trifling articles of silk, and leather gloves in small quantities, found in passengers' baggage, landed from the continent, admitted for entry for private use on the usual declaration. (Customs Order, August 7, 1833.) Now duty free.

One pint of drinkable spirits of whatever strength, or half a pint of cordial or Cologne water, in baggage, for private use-free. (Treasury Order, October 25, 1820.)

Half a pound of cigars or manufactured tobacco in the baggage of passengers delivered duty free.

Passengers from short voyages may enter 3 lbs.. and those from long voyages may enter 7 lbs., of cigars. (Customs Order, January 14, 1837.)

Books, plate, or other articles on which drawback might have been received, free, on declaration that no drawback has been received.

Drawings and sketches made for amusement, and not for sale, by the proprietor, and accompanied by him, duty free. (Treasury Order, August 5, 1817.)

Foreign newspapers unbound, duty free. (Customs Order, April 29, 1829.)

Passengers denying having Foreign Goods in their Possession.-The following clause in the Act 16 & 17 Vict. c. 107, has reference to this subject: If any passenger or other person, on board any ship or boat, or who may have landed from the same, shall, upon being questioned by any officer whether he has any foreign goods upon his person, or in his possession, deny the same, and any such goods shall, after such denial, be discovered to be, or to have been, upon his person, or in his possession, such goods shall be forfeited, and such person shall forfeit treble the value of such goods.' Sec. 229.

Any Licensed Agent overcharging parties for customs duties or other disbursement, will have his license withdrawn, and be prosecuted. (Customs Order, Dec. 24, 1847.)

A customs officer taking any fee, perquisite, or reward for anything done or omitted to be done by him in discharge of his duty, is to be dismissed. (16 & 17 Vict. c. 107 s. 3.)

BAHIA or SALVADOR. A large city (formerly a capital) of Brazil, contiguous to Cape St. Antonio, which forms the right or eastern side of the entrance of the noble bay of Todos os Santos, or All-Saints.

The map conveys a clearer and better idea of this celebrated bay than could be acquired from any description.

According to the observations of M. Roussin, the lighthouse on the Cape is in lat. 13° 0′ 30′′ S., long. 38° 30′ W. The opposite side of the entrance to the Bay is formed by the island of Taporica, distant from Cape St. Antonio about 24 leagues. But a bank along the shore of the island narrows the passage for large ships to about two-thirds this distance. Another bank runs S.S.W. from Cape St. Antonio about 1 league. Within, the bay expands into a capacious basin, having several islands and harbours, the depth of water varying from 8 and 10 to 40 fathoms, affording ample accommodation and secure anchorage for the largest fleets.

There is another entrance to the bay, on the west side of the island of Taporica; but it is narrow, intricate, and at its mouth has not more than 6 feet water. Several rivers have their embouchure in the bay, which generally occasions a current to set

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