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rolling from side to side, that the pilot became baffled, and his experience and nautical skill was rendered una. vailing; the gale and dangers still increasing, when Juvenal makes Catullus to exclaim in his trepidation and solicitude for life, thus :
" Fundite quæ mea sunt, dicebat, cuncta, Catullus ;
Atque alias.” The sentiment, so elegantly expressed in an ode not deemed the Poet's best), is but a transcript of nature, and its instinctive promptings, from panic in time of personal peril; and the Rhodians, the oldest of known navigators and maritime legislators, made this instinct the basis of their rule of law in regulating cases of jettison; and the rule was accordingly adopted by Justinian
1 and embodied in the Roman Code, under the article “De Jactu,” and has now become a part and parcel of the maritime law not only of Continental Europe, but of England and the United States also.
The essential elements, therefore, of general average claims are threefold :
I. There must be a common danger, rendering a jettison necessary
II. There must be an actual throwing overboard of goods, to avert or avoid the common danger, and
III. There must be a result indicating that the jettison necessary was potential and instrumental in averting the common danger; and did actually produce the consequent rescue or escape from further peril of the ship, cargo, or crew.
And the presence of these elements, common danger, voluntary sacrifice, and consequent security furnish all the legal ingredients for a general average claim;
though a recognized qualification to this general doctrine may be found in cases of improper stowage ; also in losses of timber, thrown from the deck of the deal ships from British North America, when there is no proof of any existing custom so to lade these ships, and a knowledge of such custom is not brought home directly to the ship-owners.
The cases on this subject usually referred to, exhibit many nice distinctions and sharp criticisms; but, on the whole, are reconcilable with the general statement of the rules already laid down.
If the loss be not necessary, or were not voluntary, or did not contribute to the general security, the legal foundation for a general average claim is clearly wanting; for then the asserted loss would be not only no sacrifice, but has proved to be entirely unavailing and superfluous.
The premeditated sacrifice of part must be made with the design to preserve the residue; and if such be the effect, and a general or partial preservation is contingently produced by the partial sacrifice, so designed and made, the preserved property remaining is liable for contribution to make good the portion voluntarily sacrificed.
The qualifications and exceptions to the general doctrine of general average are precise and various.
The loss must be voluntary, incurred by the agency of man in extreme peril, and not caused by any ordinary sea-peril, or springing from any groundless panic. The goods must be thrown and not washed overboard; the jettison, to be sufficient ground for a contribution, must be premeditated and not accidental.
All writers agree in these qualifications generally.
But in regard to certain exceptional cases, the foreign jurists are not in harmony. They differ especially as to the merit of general average claims, where there has been an intentional stranding of the vessel to save cargo, crew, and freight, or either.
In the books and cases, it is termed a voluntary stranding. Still, this even must be under such compulsion from storm, enemy, or pirates as to render it hardly a voluntary stranding.
Not only is there conflict among the maritime writers of Europe but also among eminent jurists in the United States.
The United States Supreme Court follows “without hesitation the doctrine, as well founded in authority and supported by principle, that a voluntary stranding of the ship, followed by a total loss of the ship, but with a saving of the cargo, constitute, when designed for the common safety, a clear case of general average.”
And this conclusion was pronounced by Mr. Justice Story for the court in the case of the Columbian Insurance Company v. Ashby et al. (13 Pet. 331); directly overruling the decision of C. J. Kent in the case of Bradhurst v. Columbian Insurance Company, in 9 Johns. Rep. 9; and affirming or concurring in that of Mr. J. Washington in Case v. Reilly (3 Wash. C. C. 298); and of the Supreme Court of Pennsylvania, in Sims v. Gurney (4 Binn. 513); and Gray v. Waln (2 Serg. & Rawle, 229).
This doctrine is sustained by Bynkershoek, Jacobson, Valin, Voet, Browne, and others in Europe, and opposed by Emerigon, Stevens, and Huberus. The doubt arises from the expression,“ Salvå navi,” occurring in Emerigon's comments on the Digest of the Romans.
LOST SHIP ENTITLED TO
While the safety of the ship is made by Emerigon and his school essential to a general average claim, jurists of different opinions deem the claim to be well founded in the maritime law, whether there be a total or partial destruction of the ship, provided such loss was voluntarily incurred, with the design to promote the common benefit.
The case in 13 Peters, 331, was decided in 1839. It came before the court on a special verdict in error from the circuit court for (Alexandria in the District of Columbia) the Fourth Circuit.
The jury found that the Brig Hope sailed for Barbadoes from Alexandria, May 27, 1825; that, going down the Chesapeake Bay, such was the weather, that the captain came to anchor; finally dropping all three anchors, best bower, small bower and kedge; that the gale increasing to almost a hurricane, the vessel “ ripped up the windlass, parted chain cable," and drifted with the scope of both cables paid out; struck and thumped on the shoals, swung around broadside to the wind and heavy sea; and in this situation, for the safety of the crew and preservation of the vessel and cargo, the captain ran the vessel on the bank; where, after the storm, she was left high and dry, it not being practicable to get her off.
The cargo was saved; the vessel, valued at $3,000, was sold for $256.40; and the question was, Should the saved portion of the cargo contribute to make good the lost portion of the ship?
The discussion was full and ample; and the court, in giving its opinion, fully but succinctly reviewed the leading opinions of the foreign jurists and the adjudged cases in the United States; and thence concluded that
GENERAL AVERAGE CLAIM.
the weight of authority was decidedly in favor of the present claim for general average.
The case in 9 Johns. 9, and the reasoning of C. J. -Kent, are critically examined by Mr. Justice Story, who says: “Upon principle, therefore, we cannot say that we are satisfied that the doctrine of the Supreme Court of New York can be maintained; for the general principle certainly is, that whatever is sacrificed voluntarily for the common good, is to be recompensed by the common contribution of the property benefited thereby.”
Other losses or sacrifices than mere jettison (as Emerigon and other European writers seemed to think the Rhodian and Roman law contemplated), may well constitute a ground for contribution in a general average claim; and by the modern practice, the rule is so extended as to embrace loss of ship as well as goods, and also necessary expenses.
Thus, the expenses for repairs in deviating from the direct voyage to enter an intermediate port, to enable the master to prosecute the original voyage to a successful termination, is a good legal foundation for a general average claim.
For temporary repairs to pursue the voyage, the claim may be good, if the damage were itself a subject of general average, but not always. Power v. Whitmore, 4 M. & S. 141.
Sometimes it is so for wages during detention ; also for provisions; though this has been questioned in Brown v. Staplyton (4 Bing. 119), on the ground that they do not fall under the denomination of “ merces.”
So, if masts are cut away, or sails abandoned, for the preservation of the ship (1 East. 220), Birkley v. Presgrave; but not, however, if masts and sails are destroyed