FRENCH ORDINANCE EXTRACTS. 157 upon the consent of one third part of the crew, first obtained. The article to which Valin refers is Art. 1, Book 3, Title 8, and may be thus translated: : "ART. 1. If by tempest, pursuit of enemies or pirates, the master shall feel compelled to cast into the sea a portion of his cargo, cut or carry away his masts, or leave his anchors, he shall thereupon take counsel of the shippers and chief men of the crew."1 There are twenty-one other articles in Book 3, Title 8; a translation of which I will here insert. "ART. 2. In case of diversity of opinion, that of the master and crew shall be followed. ART. 3. Ship's implements, and other articles least needed, the more bulky and less expensive, shall be first jettisoned, and then the goods on the upper deck; the whole, however, at the captain's election and by the crew's counsel. ART. 4. The clerk, or whoever acts as such, shall enter upon record, as soon as possible, the consultation, and cause it to be subscribed by such as gave counsel, or if not, then state the reason for not subscribing; and if practicable, he shall keep a complete memorandum of the effects jettisoned or damaged. ART. 5. At the first port of stopping, the master shall declare on oath before the judge of admiralty, if any, if not before the judge ordinary, the reason for making the jettison, cutting or carrying away his masts, or leav 1 The original is as follows:- "Article Premier. Si, par tempête, ou par chasse d'ennimis ou de pirates, le maître se croit obligé de jetter en mer partie de son chargement, de couper ou forcer ses mâts, ou d'abandonner ses ancres, il en prendra l'avis des marchands et des principaux de l'equipage." 158 PORTION OF FRENCH ORDINANCE ing his anchors; and if he stop at a foreign port, he shall make affidavit or protest before the French consul. ART. 6. An account of the loss and damage shall be carefully made out by the master, at the ship's port of discharge; and the goods jettisoned or salved shall be appraised according to the price current of that port. ART. 7. The assessment for paying the loss and damage shall be levied upon the salved and jettisoned goods, and one moiety of the ship and freight, at so much the pound of their value. ART. 8. In order to judge of the quality of the articles jettisoned, the bills of lading as well as the invoices should be exhibited. ART. 9. If any goods have been covered up in the bills of lading, and are found to be of greater value than should appear by the shipping agent's representation, they must, if saved, contribute at the rate of their actual value; and, if lost, they shall be paid for only at the rate of the bill of lading. ART. 10. On the contrary, if the goods be found of quality less valuable and are saved, they are to contribute according to the sworn declaration; but if jettisoned or damaged, then they shall only be paid for at the rate of their value. ART. 11. Neither ship's munitions, supplies, nor sailor's wages nor clothes shall contribute for jettison; nevertheless, whatever of these articles are jettisoned shall be satisfied by contribution from all other articles. ART. 12. Goods without bills of lading shall not be paid for, if jettisoned; and, if salved, shall not be relieved from contribution. ART. 13. Nor can contribution be exacted to pay for deck goods, whether jettisoned or damaged by jettison : reserving to the owner process against the master; but still they shall contribute, if saved. ART. 14. There should not be further contribution, by reason of injury happening to the ship, unless it were done expressly to promote a jettison. ART. 15. Unless jettison save the ship, there will be no occasion for contribution; and cargo, saved from the wreck, will be liable neither to pay for nor indemnify what is jettisoned or damaged. ART. 16. But if the ship, being saved by jettison, pursue her course and is subsequently lost, what is saved from the wreck should contribute to the jettison according to its value, as found, less the salvage expenses. ART. 17. Jettisoned goods shall not in any case con tribute to pay the damage happening to saved goods. subsequent to the jettison, nor cargo to the payment for a lost, broken, or bilged ship. ART 18. If, however, the ship has been opened, after consultation with the chief of the crew and agents, if any, for the purpose of removing cargo; in that case, it shall contribute to replace the damage done to the ship by its removal. ART. 19. In case of loss of cargo, when put into lighters to relieve a ship on entering any port or river, assessment therefor shall be levied on the ship and the entire cargo. ART. 20. But should the ship perish with the residue of her cargo, there shall be no assessment levied upon the goods put into lighters, though they arrive safely in port. ART. 21. If any owners of goods, liable to contribution, should omit to pay their proportions, the master, for the security of such contribution, may hold on and 160 LEGAL RESULT AND EFFECT. cause their goods to be sold, by a magistrate's authority, even to the extent of their several proportions. ART. 22. If goods jettisoned be recovered, subsequent to the assessment, by their owners, they shall be liable to restore to the master and others interested, so much as they shall have received by way of contribution, less the damage actually suffered by the jettison, and expense of recovery." And these twenty-two articles of the French ordinance are here inserted for the special convenience of all having occasion to refer to Title 8: "Du jet et de la contribution." From these articles may be fairly deduced the following general proposition as just and sound. If any sea-peril necessitate an act of jettison, and such act shall produce or contribute to produce a partial preservation of goods unjettisoned, then these latter goods may be assessed or taxed respectively their contributory share or tax toward repairing the damage and indemnifying individuals for losses thus incurred by jettison for the general benefit of all. It will be observed that some of these articles supply the entire substance of many modern decisions; while others are more or less modified and qualified to adapt them to the doctrines and dicta of those decisions. Many would be reluctant to accept in its literal and precise terms, the entire of Article 15, of the foregoing abstract; and jurists, administering the law, certainly would conscientiously discharge their duty by first perusing or re-perusing the Commentary of Valin upon this article, before giving to it a final judicial interpretation. Other of these articles may demand the like cautious SACRIFICE FOR SECURITY. 161 and guarded preliminary investigation, before being fully accepted as authority. The foundation of claims for general average is not merely loss of property, but an intentional sacrifice of property. It must be a sacrifice to serve or save. The purpose, in case of jettison, is sufficiently implied without expressing it. When goods, in a sea-peril, are thrown overboard, this sacrifice is made, either for the purpose of relieving or lightening ship, or saving, serving, or rescuing cargo or crew. Accordingly, whenever a jettison has been made, or any occasion has existed for cutting away masts or throwing overboard ship's implements or utensils, the purpose for doing so is implied to be "removendi communis periculi causa," or in the language partially of the Rhodian Law, "levande (servandæ vel salvandœ), navis causâ.” To remove a common peril, or avert impending danger, jettison is justifiable; and it must be made with that intent and purpose; and when so made, the goods lost are entitled to contribution, and the saved goods become contributory to the general average loss. Properly speaking, general average, if not a branch of, is akin to insurance law; and it is so identified with those kindred subjects collision, salvage, and others of which the maritime courts take general cognizance, that it seems not to be inappropriate in this work on admiralty tribunals and proceedings. The Federal courts in Cutler v. Rea (1849), 7 How. 137, had denied jurisdiction, where the process was in personam and not in rem. But the correctness of that decision was doubted by Mr. Justice Wayne, and afterwards disregarded by Mr. J. McLean; 6 McLean's Rep. 576, Dike et al. v. The St. Louis; and finally in a |