CHAPTER XVIII. AVERAGE. General averagewhat. § 119. GENERAL average is a contribution by the owners of the ship, freight and cargo respectively, to compensate the owner of a particular part of the ship or cargo whose property was sacrificed for their common good (a); as by a jettison of cargo. The whole adventure must have been in imminent peril of being lost for a right to general average to exist; for the sacrifice must have been for the general good (b). The sacrifice must also be both contrary to the ordinary duty of the shipmaster or owner, and intentional (c). Thus, supposing a ship be stranded and part of the cargo be seized by wreckers, the loss cannot be recovered as a general average contribution. But if part of the cargo, in consequence of the stranding, is thrown overboard for the common good, that part will be the subject of a general average contribution (d). It is not essential that the sacrifice be attended with success. While the cargo continues on board a vessel after her arrival at her port of discharge, the voyage will not have determined, so as to release the owners either of the ship or cargo from their respective rights and liabilities in respect of salvage services (e). (a) Wilson v. Bank of Victoria, (b) Job v. Langton, 6 E. & B. this §; Oppenheim v. Fry, 5 B. & S. 348 (S. C.). (c) Taylorv. Curtis, 6 Taunt. 608; Covington v. Roberts, 2 B. & P. N.R. 378. (d) Nesbitt v. Lushington, 4 T. R. 783. (e) Whitecross Wire Co. v. Savill, 8 Q. B. D. 653 (C. A.); 51 L. J., CASES. 1. A clipper sailing ship, having a steam-screw, bound from Australia to England, was damaged by an iceberg so as to lose her power of sailing. The captain at the first port he came to purchased coals to enable him to complete his voyage by steaming. He could have repaired the ship there. Held, the cost of the coals could not be charged by the shipowners against the shippers of the cargo as general average (ƒ). 2. A ship, sailing from Liverpool to Newfoundland with a cargo, ran ashore on the coast of Ireland. The cargo had to be landed to get the ship off, and was placed in store in Dublin. The ship was then got off by digging a channel and employing a steam-tug. She was afterwards towed to Liverpool for repairs. The cargo was forwarded to its destination by another vessel. Held, that the expenses incurred after the cargo was in safety, in getting the ship off and towing her to Liverpool, were not chargeable to general average (g). 3. The H. had discharged at her port of destination about 1,300 tons of her cargo when a fire broke out in her hold. To extinguish the fire, her master ordered water to be poured into her. Part of the remainder of the cargo, about 100 tons, was thereby damaged. The owners of the H. were held liable to contribute in respect of such damage (h). § 120. claimable. For a general average the actual loss of or injury to the For what subject-matter, in respect of which it is claimed, is not an essential element. But general average may be for any expense incurred with relation to the subject-matter, such expense being for the general good of all interested in the adventure; provided it was voluntarily incurred. Pouring water on the cargo to extinguish a fire in a ship's hold is a general average act, and if the cargo be thereby damaged, will entitle the owner to contribution (). So a jettison of cargo will be the subject of a general average. But a Q. B. 426; 46 L. T. 643; 30 W. R. 588; see "Cases" (3) at end of this §. (f) Wilson v. Bank of Victoria, L. R., 2 Q. B. 203. (g) Job v. Langton, 6 E. & B. 779. supra. jettison of cargo stowed on deck will not be, unless it is customary to carry the class of goods composing such cargo on deck (k). Any damage by necessity caused to the ship or another part of the cargo by the jettison, will itself give a claim to general average (7). So the freight, which the shipowner but for the jettison would have received for the goods thrown overboard, will give him a claim to general average (m). Money paid or goods voluntarily and without fraud delivered up to pirates, robbers, &c., as a composition, will be the subject of a general average (n). But if the goods are seized on forcibly by the pirates, &c., they will not be, for the loss was not voluntary (o). Goods jettisoned, not being abandoned, belong to their former owners, and may be reclaimed on payment by them of the salvage (p). If the ship be so disabled, that repairs are absolutely necessary, and the cargo or part thereof must be unloaded for such repairs to be made, the cost of unloading, warehousing, and reloading it will be the subject of a general average (q); as will also the costs incurred for pilotage and other charges on the vessel leaving the port of refuge (9). Masts and sails destroyed through the necessity of carrying an extraordinary press of canvas, are not subjects of a general average; for the loss was not voluntarily in () See p. 200; Ross v. Thwaite, 1 Park, Ins. 26; Backhouse v. Ripley, ib.; Da Costa v. Edmunds, 4 Camp. 142; Gould v. Oliver, 4 Bing. N. C. 134; Miller v. Tetherington, 7 H. & N. 954 (S. C.); Wright v. Marwood, 7 Q. B. D. 62 (C. A.). (1) Achard v. Ring, 31 L. T., N. S. 647; Stewart v. W. Ind. & Pac. S. Co., L. R., 8 Q. B. 362 (S. C.) (m) Benecke, Pr. of Indem. 178; Pirie v. Middle Dock Co., 44 L. T. 426; Wright v. Marwood, 7Q.B.D. 62 (C. A.); see "Cases" (5) and (6) at end of this §. (n) Hicks v. Palington, Moore, 297. (0) Nesbitt v. Lushington, 4 T. R. 783. (p) 1 Emerigon, c. xii. s. 40, p. 596; Atlantic Mutual Marine Insurance Co. v. Huth, 16 Ch. D. 474; 44 L. T. 67 (C. A.). (a) Plummer v. Wildman, 3 M. & Sel. 482; see "Cases" (1) at end of this; Attwood v. Sellar, 5 Q. B. D. 286 (C. A.). curred (r). But if the masts or sails be cut away and thrown overboard or destroyed, or if anchors be heaved overboard, or the ship's stores or guns jettisoned for the sake of preserving the ship and cargo, they would be the subjects of general average (8). The wages and provisions of the seamen, while the repairs are being executed, while waiting for convoy, or during an embargo, or a delay caused by ice or quarantine, are not the subject of either general average or particular average; but must be borne exclusively by the shipowner (t). For the shipowner is bound from the beginning to the end of the voyage to keep a competent crew on board, as part of the consideration for the freight. However, remuneration for extraordinary services, e. g., remuneration for getting afloat a stranded vessel, salvage paid to a man-of-war for rescuing a ship and her cargo from capture by an enemy, or to any vessel for preserving them from shipwreck, will give a claim to general average ; provided such extraordinary services were for the benefit both of the ship and cargo (u). So the hire of extra hands to pump a ship, which has sprung a leak, will be allowed in general average (x). Where all that is done towards lightening the ship is one continuous operation, and carried on in order to preserve the goods as well as the ship, the goods will be liable to contribute to all the expenses, even those incurred after they were unloaded (y). Where a ship is compelled to put into port to repair (r) Covington v. Roberts, 2 Bos. & Pul. N. R. 378; see "Cases" (2) at end of this §. (s) Birkley v. Presgrave, 1 East, 220; Robinson v. Price, 2 Q. B. D. 295 (C. A.); see "Cases" (4) at end of this §. (t) Power v. Whitmore, 4 M. & S. 141; Plummer v. Wildman, 3 M. & Sel. 482; see" Cases" (1) at end of this §; Robertson v. Ewer, 1 T. R. 127. (u) Kemp v. Halliday, L. R., 1 Q. B. 520 (S. C.); Job v. Langton, 6 E. & B. 779; Walthew v. Marrojani, L. R., 5 Exch. 116 (S. C.); see "Cases" (7) at end of this §. (x) Birkley v. Presgrave, 1 East, 220, 222, 227; Oppenheim v. Fry, 5 B. & S. 348 (S. C.) (y) Moran v. Jones, 7 E. & B. 523. damage caused by a general average sacrifice, the cost of warehousing and re-shipping cargo, which it was necessary to unload, and the port and pilotage dues and other expenses on leaving the port, will be the subject of a general average contribution (a). If the shipmaster sell or mortgage part of the cargo to pay for repairs during the voyage, that part will not be the subject of general average (b). If, however, the sale or mortgage were effected in order to repair such losses as the cost of replacing masts, anchors, &c., sacrificed for the common good, or of making for a port of distress to refit, a general average contribution can be claimed (c). Any injury to the ship, the ammunition lost, or the cost of healing the seamen wounded in a fight with an enemy, or with pirates, will not be reimbursed by a general average contribution (d). CASES. 1. A ship being run foul of and damaged by another ship, the captain had to cut away part of the rigging, and subsequently to return to port to repair, as otherwise the ship could not have completed her voyage. Held, that the costs of the repairs, so far as they were necessary for the completion of the voyage, but no further, and of unloading the goods for such repairs, were a general average; but that the master's expenses during the unloading, repairing and reloading were not (e). 2. A vessel in order to escape from a privateer carried an unusual press of canvas, and though she succeeded in escaping lost the head of her mainmast, and was much strained, Held, a particular and not a general average (ƒ). 3. A merchantman, carrying six guns, was attacked by a privateer, but after a gallant resistance contrived to beat her off. She however, lost two of her men killed and several wounded, was herself (a) Attwood v. Sellar, 5 Q. B. D. 286; 49 L. J., Q. B. 515; 42 L. T. 644; 28 W. R. 604 (C. A.). (b) Hallett v. Wigram, 9 C. B. 580; Benson v. Chapman, 2 H. L. Cas. 696; Powell v. Gudgeon, 5 M. & S. 431; Dobson v. Wilson, 3 Camp. 480. (c) Hallett v. Wigram, 9 C. B. 580, 604. (d) Taylor v. Curtis, 6 Taunt. 608; 4 Camp. 337. (e) Plummer v. Wildman, 3 M. & Sel. 482. (f) Covington v. Roberts, 2 Bos. & Pul. N. R. 378. |