designed by the master for the safety of the whole adventure, and was successful in preventing the breaking up of the voyage.-Pacific Mail S. S. Co. v. Dupre (D. C.) 74 Fed. 250; Same v. De Lima, Id.; Same v. California Vintage Co., Id.; Same v. Kohler, Id.

[n] (U. S. 1898) Where a vessel's fore peak suddenly filled with water, which was believed by the master and officers to come from a hole below the water line, endangering the safety of ship and cargo, and they thereupon opened the sluices to the next compartment, knowing that goods therein would necessarily be damaged, in order to discover and repair the leak, held, that this was a case for general average, though the leak turned out to be in the hawse pipe, and was easily repaired, and the voyage continued.-The Wordsworth (D. C.) 88 Fed. 313.

[o] (U. S. 1898) A steamship company which directs its steamers to skirt the Windward Islands for the entertainment of passengers, but fails to supply the vessel with proper charts, is itself in fault for a stranding from going too close inshore, and is not entitled to general average contribution from the cargo.-Trinidad Shipping & Trading Co. v. Frame, Alston & Co. (D. C.) 88 Fed.

528.

[p] (Eng. 1897) A ship, laden with a perishable cargo which could not be discharged, having on her voyage become incapable of moving through damage to her propeller, is, with her cargo, in peril, although the ship be tight and strong, and, if a portion of the cargo be damaged by water entering when the ship is tipped to be repaired, the cargo owners have a right to a general average contribution.-McCall v. Houlder, 66 Law J. Q. B. 408, 76 Law T. (N. S.) 469, 8 Asp. 252.

[q] (Eng. 1899) Plaintiff shipped a cargo of live stock under a contract providing that the steamer should not call at Brazilian ports before landing, and that average, if any, should be adjusted according to the York-Antwerp rules. On the voyage the vessel sprung a leak, and for safety the captain put into a Brazilian port for repairs. The landing of the live stock at its destination was rendered impossible under the foreign animals order, prohibiting the landing of animals if the steamer conveying them had touched at a Brazilian port. The live stock were sent on to Antwerp, where they were sold at a less price than they would have realized at the port of their destination, and the plaintiff also incurred expense in respect to extra wages for their cattlemen and the cost of feed and water while at the Brazilian port. Held, that putting into such port was a general average act, and the loss on the sale of the live stock, being the direct consequence of such act, was admissible in general average.-Anglo-Argentine Live Stock & Produce Agency v. Temperley Steam Shipping Co., 68 Law J. Q. B. 900, [1899] 2 Q. B. 403, 81 Law T. (N. S.) 296, 48 Wkly. Rep. 64, 8 Asp. 595.

[r] (Eng. 1901) A ship was chartered to carry a cargo of coals from Cardiff to Esquimalt. During the voyage the coals began to heat, and the captain decided, for the safety of the ship, freight, and cargo, to bear up for Buenos Ayres. Upon examination it was found that the condition of the coals was such that the cargo could not be carried with safety to Esquimalt, and it was condemned and ultimately sold. While at Buenos Ayres the ship and cargo were in safety. Held, that under the circumstances the sale of the cargo constituted the abandonment of the voyage, and that as at that time the common danger had ceased there was no such general average sacrifice of the freight as would form the subject of general average contribution.-Iredale v. China Traders' Ins. Co., 69 Law J. Q. B. 783, [1901] 2 Q. B. 515, 83 Law T. 299, 49 Wkly. Rep. 107, 5 Com'l Cas. 337, 9 Asp. 119.

III. LOSSES AND EXPENSES WHICH MAY BE SUBJECTS OF COMPENSATION. 1. Loss of or Damages to Cargo.

[a] (U. S. 1868) On a lawful sale of a portion of a cargo by a master for the general good of the ship and cargo, it should be accounted for on a general average. The Brewster (D. C.) 95 Fed. 1000.

[b] (U. S. 1896) Where a ship failed to take the customary supply of coal for the voyage, and encountered a hurricane which protracted the voyage so that she was obliged to burn ship's materials and cargo, held, that she must bear, as particular average, the loss of such materials during the time the coal she ought to have taken would have lasted, and that the residue of the loss of such material was chargeable to the hurricane alone, and constituted a general average charge.-Hurlbut v. Turnure (D. C.) 76 Fed. 587.

[c] (N. Y. 1871) Cotton covered by a risk indorsed on an open policy of insurance was shipped by a bark, the master thereof giving a clean bill of lading therefor. The cotton was loaded on deck without the knowledge or implied consent of the insurer, and was jettisoned to save the vessel. Held, that the goods were not within the policy, and there could be no claim for contribution on a general average for their loss.-Atkinson v. Great Western Ins. Co., 4 Daly, 1.

[d] (Eng. 1899) Where, owing to its inherent condition, the cagro must inevitably be destroyed by fire before the termination of the chartered voyage, the freight, being already totally lost, is no longer capable of being sacrificed for the common benefit, so as to become the subject of general average contribution.-Iredale v. China Traders' Ins. Co., 68 Law J. Q. B. 1021, [1899] 2 Q. B. 356, 81 Law T. (N. S.) 231, 48 Wkly. Rep. 48.

2. Loss of or Damage to Vessel.

[a] (U. S. 1896) Incidental injuries to tugs, such as the breaking of hawsers and the loss of a propeller while engaged in pulling off a stranded ship under a contract of hiring by the day, are to be deemed as comprehended in the contract price, and cannot be allowed, in making a general average adjustment, against the various interests in the stranded ship and cargo.-Earnmoor S. S. Co. v. New Zealand Ins. Co. (D. C.) 73 Fed. 867.

[b] (U. S. 1902) Where the rudder of a ship was partly torn loose in a gale at sea, and it became necessary to cut it away to prevent its beating a hole in the ship during the storm, its value in its damaged condition before it was cut away is a proper subject for allowance in general average.-May v. Keystone Yellow Pine Co. (D. C.) 117 Fed. 287.

[c] (Eng. 1901) Where, in the course of a voyage, the master of a vessel, with a view to prevent it from being lost, cuts away a mast in the belief that it is already a hopeless wreck, there is a general average sacrifice, if such belief proves to have been unfounded.-Montgomery v. Indemnity Mut. Marine Assur. Co., 70 Law J. K. B. 45, [1901] 1 K. B. 147, 84 Law T. 57, 49 Wkly. Rep. 221, 9 Asp. 141, 6 Com'l Cas. 19.

3. Services and Expenses.

[a] (U. S. 1896) A bark with a cargo bound from Chili for New York sprung a leak after proceeding about 1,500 miles, and put in to Valparaiso for repairs. Held, on conflicting evidence as to the seaworthiness of the ship at the time she sailed, that the fact that her certificate, issued by the Bureau Veritas, had just expired was not conclusive, and that on all the circumstances, including the contemporaneous judgment at Valparaiso, the seaworthiness of the vessel should be sustained; hence, the cost of putting into the port of refuge, and of the necessary unloading of the cargo there, was a valid charge in general average.-Grace v. The Mauna Loa (D. C.) 76 Fed. 829.

[b] (U. S. 1900) An item of general average charges, based on the estimated cost of reloading cargo discharged on account of injury to the vessel, is not properly allowable where, by reason of the fact that the voyage was not resumed, the expenditure was not actually made. Aliter under the circumstances, as to estimated commissions.-The Eliza Lines (C. C.) 102 Fed. 184.

[c] (U. S. 1902) The wages and provisions of a crew during the time they were engaged at sea in constructing a jury rudder after it became necessary to cut away the broken rudder to save the ship in a storm are proper items for allowance in general average.-May v. Keystone Yellow Pine Co. (D. C.) 117 Fed. 287.

4

[d] (Eng. 1899) Plaintiff shipped a cargo of live stock under a contract providing that the steamer should not call at Brazilian ports before landing, and that average, if any, should be adjusted according to the York-Antwerp rules. On the voyage the vessel sprung a leak, and for safety the captain put into a Brazilian port for repairs. The landing of the live stock at its destination was rendered impossible under the foreign animals order, prohibiting the landing of animals if the steamer conveying them had touched at a Brazilian port. The live stock were sent on to Antwerp, where they were sold at a less price than they would have realized at the port of their destination, and the plaintiff also incurred expense in respect to extra wages for their cattlemen and the cost of feed and water while at the Brazilian port. Held, that wages of the cattlemen and the cost of the feed and water were not subjects for general average contribution.—Anglo-Argentine Live Stock & Produce Agency v. Temperley Steam Shipping Co., 68 Law J. Q. B. 900, [1899] 2 Q. B. 403, 81 Law T. (N. S.) 296, 48 Wkly. Rep. 64, 8 Asp. 595.

[e] (Eng. 1901) Expenses incurred by the ship for the benefit of the adventure, though rendered necessary through the master's negligence, may be the subject of a general average contribution from the holders of bills of lading containing a clause excepting the master's negligence.--Milburn v. Jamaica Fruit Importing & Trading Co., 69 Law J. Q. B. 860, [1900] 2 Q. B. 540, 83 Law T. 321, 5 Com'l Cas. 346, 9 Asp. 122.

IV. LIABILITY TO CONTRIBUTE.

[a] (U. S. 1896) The owners of a cargo are liable on an implied promise for general average.-Wellman v. Morse, 76 Fed. 573, 22 C. C. A. 318.

[b] (U. S. 1896) Goods discharged in lighters just before scuttling to extinguish fire, and sent forward by another vessel, are bound to contribute to the expense of salving the ship and the remainder of the cargo. 70 Fed. 262 (1895) affirmed.-Reliance Marine Ins. Co. v. New York & C. Mail S. S. Co., 77 Fed. 317, 23 C. C. A. 183; New York & C. Mail S. S. Co. v. Reliance Marine Ins. Co., Id.

[c] (U. S. 1882) The underwriter upon the hull is liable to contribute to general average for jettison of the deck load when the custom or usage of the trade in which the vessel is employed is to carry part of her cargo on deck.— Hazleton v. Manhattan Ins. Co. (D. C.) 12 Fed. 159.

[d] (Eng. 1901) A charter party, containing a clause excepting the master's negligence, provided that the master should sign bills of lading without prejudice to the stipulations of the charter party, and that the charterers should indemnify the shipowners from the consequences of signing bills of lading under their instructions. The master, by the charterers' direction, signed bills of lading containing no exception of negligence. Expenses on behalf of the adventure having been incurred by the ship, owing to the master's negligence, the cargo owners refused to contribute in general average. Held, that if the bills of lading had contained a negligence clause the cargo owners would have been bound to contribute, and consequently that the charterers were bound to indemnify the shipowners for general average contribution not recovered from the cargo owners.-Milburn v. Jamaica Fruit Importing & Trading Co., 69 Law J. Q. B. 860, [1900] 2 Q. B. 540, 83 Law T. 321, 5 Com'l Cas. 346, 9 Asp. 122.

[e] (Eng. 1901) Homeward freight payable under a charter party is liable to contribute to a general average sacrifice made on the outward voyage.Carisbrook S. S. Co. v. London & Provincial Marine & General Ins. Co., 70 Law J. K. B. 930, [1901] 2 K. B. 861, 50 Wkly. Rep. 42, 6 Com'l Cas. 291.

V. LIMITATION OF LIABILITY BY CHARTER OR BILL OF LADING.

[a] (U. S. 1897) A provision in the bill of lading authorizing the vessel to call at any port whatever does not relieve her of the expense of putting into a port of refuge in consequence of taking an inadequate coal supply.-Hurlbut v. Turnure, 81 Fed. 208, 26 C. C. A. 335; (1896) Hurlbut v. Turnure (D. C.) 76 Fed. 587.

84 C.C.A.-21

VI. BONDS.

[a] (U. S. 1896) Cargo owners cannot require a provision for postponement of any suit against the sureties until the end of litigation with the consignees. -Wellman v. Morse, 76 Fed. 573, 22 C. C. A. 318.

[b] (U. S. 1896) An average bond should be conditioned in the simplest terms to pay the obligor's share of general average, and it is improper to demand a bond requiring more, or which would in any way prejudice the owner of the cargo in denying liability, or in questioning the amount of it, or which would close any of the methods which the law gives for determining the existence or extent of liability.-Wellman v. Morse, 76 Fed. 573, 22 C. C. A. 318.

[c] (U. S. 1896) When the owners of the cargo of a vessel, which has been stranded and rescued by the services of other vessels, give a bond to the owner of such vessel, covering "losses and expenses incurred or to be incurred, which may be a charge by way of general average or otherwise, and providing that claims for tug services or otherwise are subject to approval of an insurance company, or settled by arbitration to which they are a party for us," such owners are liable for their proportion of a sum which the owner of the vessel, upon a settlement approved by the insurance company, has paid to the owners of the rescuing vessels for their services.-Morse v. Pomroy Coal Co. (D. C.) 75 Fed. 428.

[d] (Mo. 1897) The execution of an average bond by the owner of the cargo of a sunken vessel, binding him to the payment of such loss, damages, and expenses as shall be made to appear to be due from him, does not absolutely conclude him as to his liability for the amount charged against him by the adjuster, nor preclude him from defending on the ground that the loss resulted from the negligent handling of the vessel.-Conrad v. De Montcourt, 138 Mo. 311, 39 S. W. 805.

[e] (Eng. 1897) The parties to an average bond agreed to pay their proper and respective proportions of any general average charges to which they might be liable, and forthwith to furnish to the captain or owners of the ship a correct account and particulars of the value of the goods delivered to them respectively, in order that any such general average charges might be ascertained and adjusted in the usual manner. Held, that there was no implied condition to employ an average stater residing at the port of discharge.-Wavertree Sailing Ship Co. v. Love, 66 Law J. P. C. 77, App. Cas. 373, 76 Law T. (N. S.) 576, 8 Asp. 276.

VII. ADJUSTMENT.

[a] (U. S. 1901) Where the charterer is, by the terms of the charter, required to pay the freight on goods lawfully jettisoned during the voyage, the consignee is entitled to allowance therefor in the general average adjustment, but is assessed only on the foreign value of the goods, less the freight, which is assessed to the vessel. Decree (D. C. 1899) 95 Fed. 837, affirmed.-Christie v. Davis Coal & Coke Co., 110 Fed. 1006, 49 C. C. A. 170.

[b] (U. S. 1896) Where various interests in a stranded vessel and cargo, in order to avoid "greater general average expenses," made an agreement for the allowance of the freight to the charterers as a condition of the abandonment of the voyage, held, that such agreement was not binding on insurers who had not joined in or assented to it, even though the terms of the agreement would not have prejudiced them.-Earnmoor S. S. Co. v. New Zealand Ins. Co. (D. C.) 73 Fed. 867.

[c] (U. S. 1897) In a general average adjustment to be stated "according to the established usages and laws" of the port of New York, the allowance of freight upon jettisoned goods is the full freight as per bill of lading. The recent practice of the English adjusters to allow only net freight in such cases has not been adopted in New York.-Chrystal v. Flint (D. C.) 82 Fed. 472.

[d] (U. S. 1900) Although, under the circumstances of a case, salvage is a matter of particular averages against the vessel, cargo, and freight severally,

yet where such averages arose out of a peril which renders a general average necessary they are to be deducted in ascertaining contributory values for the purpose of the general average.-The Eliza Lines (C. C.) 102 Fed. 184.

[e] (U. S. 1900) In a general average adjustment no deduction is to be made from freight charged against the cargo owner because the cargo has been subjected to particular average charges for salvage. The Eliza Lines (C. C.) 102 Fed. 184.

[f] (U. S. 1900) In computing contributory values for the purpose of a general average adjustment it is not necessary that they should all be taken at the same time and place, but, according to the custom of Boston, the value of the vessel is obtained by taking her value at the port of refuge, and adding to it the benefit she received from the general average, while the value of the cargo is taken according to the place and time of its arrival at the port of destination.-The Eliza Lines (C. C.) 102 Fed. 184.

[g] (U. S. 1900) Although a court directs that contributions to general average be made on the basis of the completion of a voyage, interrupted without right by the charterers, it may also properly direct the adjustment to be made in accordance with the customs of the port where the voyage actually terminated, and where the adjustment is in fact made; the question of what custom shall be adopted being one of convenience, rather than of theory.The Eliza Lines (C. C.) 102 Fed. 184.

[h] (Eng. 1896) For the purpose of ascertaining the amount to be contributed to in general average in the case of a ship which has suffered both particular and general average damage, and has been sold as a constructive total loss, the value of such ship is her value at the time immediately preceding the general average sacrifice in respect of which contribution is to be made, and such value is to be ascertained by deducting from the value of the ship at the time she left port the amount which it would have cost to repair the particular average damage, and also the amount for which she was sold as a constructive total loss.-Henderson v. Shankland [1896] 1 Q. B. 525.

[i] (Eng. 1896) Where no repairs have in fact been done, the shipowners are not entitled to the one-third "new for old" allowance in estimating the value of a ship, for the purpose of ascertaining the amount to be contributed to in such general average.-Henderson v. Shankland [1896] 1 Q. B. 525.

[j] (Eng. 1897) There is no obligation on shipowners to employ an average stater at all for the adjustment of liabilities.-Wavertree Sailing Ship Co. v. Love, 66 Law J. P. C. 77, App. Cas. 373, 76 Law T. (N. S.) 576, 8 Asp. 276.

VIII. ACTIONS.

[a] (U. S. 1896) Though, strictly, the right to payment of general average does not, perhaps, always await a discharge of the cargo, yet no admiralty court will enforce payment prior to an opportunity for an inspection of the cargo by its owner for the purpose of determining its contributory value, so that, practically, a prior discharge of the cargo is necessary to enable the owner of the vessel to collect the amount due for general average.-Wellman v. Morse, 76 Fed. 573, 22 C. C. A. 318.

[b] (U. S. 1896) In a suit by a shipowner on a cargo owner's general average bond, which contained a recital that the ship, on her voyage, "encountered strong winds and a heavy sea, which caused the vessel to labor severely," held, that the libelant was entitled to a prima facie presumption that the ship was seaworthy at the commencement of the voyage. The Edwin I. Morrison, 153 U. S. 199, 14 Sup. Ct. 823, 38 L. Ed. 688, distinguished.-Franklin SugarRefining Co. v. Funch, 73 Fed. 844, 20 C. C. A. 61.

[c] (U. S. 1900) Although the owners of a vessel are exempt under the statutes from liability for damage to the cargo resulting from a fire due to the negligence of one of the crew, without their own neglect, they cannot maintain an affirmative action against the owner of the cargo for contribution in general average to the ship's loss; but, when an action for general average is brought by the cargo owner, the damage to the ship must be taken into consideration, as otherwise the cargo owner could recover by selecting his form of proceed