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usually referred to in discussing and adjudicating salvage claims, in the various cases of derelict, distress, rescue, and recapture, it is apparent, that all marine losses, by foundering at sea, stranding on a coast, or by wreck generally, will be governed by the rules and principles laid down by the admiralty courts in the decisions of those cases as reported. For
many considerations, the subject of salvage must ever be one of intense interest to the student of admiralty law.
The late Hon. Rufus Choate, whose name and fame are deeply cherished, where he was first and earliest known in the courts as an advocate and jurist, delivered a glowing and highly popular lecture, in his own peculiar style, on what he termed “ the Literature of the Sea." In that elegant but now lost lecture, the untold dangers and delights of sea-life were graphically depicted by him: the vast ocean, with its unexplored depths, hidden treasures, sublime scenes, marvellous views, golden glories of sunrise and sunset, myriads of inhabitants, music, murmurings, and mountains of obstacles and perils, were represented as having made, to many mariners, their chosen vocation a most engaging, attractive, and even fascinating pursuit. There the mariner's real character was strikingly developed ; his courage cultivated; and personal daring so displayed that man often
; seemed to be more than mortal. Moulded by nature for ease, indolence, and luxury, as a mariner, he is made to laugh at labor and defy danger. The mariner, in a tempest at sea, or by the winds forced upon a lee-shore, may concentrate the effort and energies of a whole life into a moment; his every act and exertion (like those of a general on the field of battle when surprised)
may be, in the highest degree, intensified, whether the act called for be one of judgment, skill, prudence, gallantry, or adventure and activity.
Hence, the topics in salvage cases are invested with an unusual interest; and are ordinarily more exciting than all others (except perhaps those arising out of collision); so that they seem to be well calculated to give scope and occasion for the attractive display of all those highest of professional gifts, logic. rhetoric, learn
ing, and judgment.
JETTISON is a marine loss incurred by casting goods overboard, and rendered necessary to be so voluntarily incurred from some supposed or actual impending peril, which cannot apparently be warded off by any possible human agency, in season to secure the general safety of ship or cargo.
The occasion, therefore, for throwing overboard merchandise of value or bulk, belonging to individuals, in order to lighten a vessel and so save other portions of the cargo, or the ship itself, from being wrecked on shore, or foundering at sea, presupposes certain conditions of danger to exist, which man cannot control; and which, therefore, if not provided for seasonably, may ultimately result in the total loss of ship, or peril to cargo and crew. And these conditions are, First, there must exist great stress of weather and consequent imminent peril occasioned thereby; or Secondly, there must exist such pressing hostile pursuit and consequent danger of capture by enemies or pirates, that no chance or hope even of escape seems possible, but by jettison, to lighten or relieve the vessel and so increase her speed; or Thirdly, there must exist generally, such sudden or unforeseen peril as is likely to baffle the skill and judgment of the best and bravest of nautical men, in order to avert a
common danger; by promptly resorting to the only method of easing and relieving an imperilled ship, in throwing over what will most contribute to that end, whether heavy or light, cheap or valuable goods.
And whatever is thus parted with for the common benefit and safety must be made good by what is preserved by reason of the jettison ; in other words, merchandise remaining safe, after other goods have been cast overboard, are subject to contribution for the amount thus lost, in proportion to their value.
And this, in insurance and maritime law, is what is commonly understood and designated by the expression, general average.
It may be defined to be a general contribution, levied on all, to make good an individual loss, by a jettison, voluntarily but necessarily incurred, to secure and preserve other's goods on board from destruction by wreck or other sea-peril; that is, the portion sacrificed is entitled to remuneration from the remnant saved.
This proposition, thus stated, seems to be sufficiently comprehensive to truly define general average, as it has, in jettison cases, been judicially tested, technically treated, or historically traced.
The principle upon which it rests is one of highest antiquity; and is really but a manifestation of an instinct of human nature, put verbally into a legal formulary.
Self-preservation is a law of our being. Whatever is essential to man's personal safety, man will instinctively find a mode and means of doing, and give a reason for it; and thus, this instinct has ultimately become formally incorporated into the municipal law of society and nations.
The only fragment of the Rhodian law (the oldest maritime code now known), embraces the principle, and has furnished the doctrine of general average to all the most enlightened maritime nations of the world; and this fragmentary relic of the Rhodian law could hardly have survived the wreck of time, in any authentic form, had it not been by Justinian incorporated into the Roman Code (Dig. 14, 2); and so permanently preserved.
“ Rhodiâ lege cavetur, omnium contributione sarciatur, quod pro omnibus datum est.”
“ Æquissimum enim est commune detrimentum, fieri eorum, qui propter amissas res aliorum, consecuti sunt ut merces suas salvas habuerunt." — Dig. 14, 2–5.
And the principle is, that whatever is bestowed for the benefit of all, shall, by a general contribution of all, be made good by all; while the reason assigned is, that it is eminently just, that the loss should be common to all such as, through others' losses, have succeeded in saving their own goods or portions of them.
Whether both the principle and the reason for it are taken from the Rhodian law, may admit of doubt; at all events, the former certainly is, while the latter may have been the gratuitous commentary or interpolation of Justinian.
Lord Tenterden (when plain Mr. Abbott), in the text of Abbott on Shipping (p. 476), and before him, Emerigon (ch. 12, § 40), both refer to the 12th Ode of Juvenal on Shipwreck; in which the poet, addressing his friend Corvinus, happily and classically gives expression to the principle of jettison as well as its practical application.
The vessel bearing Catullus, during a storm, became so water-logged, her mast giving away, and the hull