badly injured by the enemy's shot, and had expended a large quantity of ammunition. Held, that the costs of healing the wounded, of repairing the ship, and of the ammunition, were not recoverable as a general average contribution (g).

4. A ship sailed well equipped and manned for a voyage, having a donkey engine on board, and a reasonable supply of coals to work it for pumping purposes. The ship, encountering very heavy weather, sprung a leak, and to work the engine and so keep her afloat the ship's spare spars and some of the cargo had to be burnt, the coals having run short. Held, that the sacrifice of the spars and cargo was general average (h).

5. The plaintiffs shipped cattle as a deck cargo on the defendants' vessel. During the voyage the master was forced to jettison the deck cargo by throwing the cattle overboard. The jettison was proper and necessary for the ship's safety. Held, that the plaintiffs could not recover from the defendants a general average contribution for the loss of the cattle (i).

6. Coals were shipped to be carried to S. and there delivered on freight being paid. During the voyage a fire broke out spontaneously in the coals, and portions were thrown overboard; the remainder being damaged by the water poured on them with the object of extinguishing the fire, were necessarily discharged and sold at a port of refuge. Owing to no freight being payable there, they fetched a larger sum than they would have fetched at their port of destination; but the freight on them was wholly lost. Held, that the shipowner was entitled to a general average contribution in respect of the lost freight (k).

7. A ship laden with cargo, while still in port, was driven ashore on the 5th of October. The cargo was by the 19th unshipped and warehoused in safety. An ineffectual attempt was then made to float the ship; but subsequently, on the 31st December, she was successfully floated and taken into port and repaired. After the cargo was reshipped, she proceeded to her destination, Held, that the expenses of getting her off were not general average, to which the owners of the cargo were bound to contribute (1).

§ 121.

All that is ultimately saved out of the adventure, in- What cluding the ship, freight, and cargo, will be liable to con

(g) Taylor v. Curtis, 6 Taunt. 608;

4 Camp. 337.

(h) Robinson v. Price, 2 Q. B. D. 295 (C. A.).

(i) Wright v. Marwood, 7 Q. B.

D. 62 (C. A.).

(k) Pirie v. Middle Dock Co., 44 L. T. 426.

(1) Walthew v. Mavrojani, L. R.,

5 Ex. 116 (S. C.).

contributes.

Only merces.

Deck cargo.

Freight.

tribute to the general average, provided it was in actual danger when the loss was incurred. Therefore, goods landed before a jettison or shipped after, are not liable to contribute. Only articles which are comprised in the term merces contribute, i. e., only such goods as are shipped for the purposes of trade. Consequently, the clothes and jewellery of the passengers, and all kinds of stores and provisions, are not liable to contribute (m), even where the ship only carries passengers and no other cargo. However, gold, silver, jewels and precious stones, &c., not worn or carried about the person, will have to contribute (»).

Cargo stowed on deck is liable to contribute; though if jettisoned it is not entitled to a general average contribution, except in two instances, viz.: (1) where deck lading is permitted by custom of trade, and (2) in the case of coasting vessels (o). This rule will not be affected by the shipper agreeing that the cargo be shipped on deck (p).

The shipowners contribute according to the net value of the ship and freight at the termination of the voyage, the cost thereof being deducted (e. g. the wages of the crew) from the freight, but they do not contribute in respect of freight paid in advance. If freight pro rata itineris only be earned, the shipowners will contribute merely in respect of it, and not of a full freight. Where the wages are in excess of the freight, as in consequence of some delay, the shipowner will not be liable to contribute in respect of the freight.

If a ship be chartered for a voyage out and home at one entire sum, and if such sum is contingent on her arrival in safety at the home port, the whole sum, as it is at risk, will be liable to contribute for any sacrifice for the general good made any time during the voyage (2).

(m) Brown v. Stapyleton, 4 Bing. 119; see "Cases" (1) at end of this §.

(n) Peters v. Milligan, 1 Park, Ins. 211.

(0) Wright v. Marwood, Gordon v. Marwood, 7 Q. B. D. 62 (C. A.);

50 L. J., Q. B. 643; 45 L. T. 297; 4 Asp. M. C. 451; see "Cases" (2) at end of this §.

(p) Ibid.; Burton v. English, 10 Q. B. D. 426.

(q) Williams v. London Ass. Co., 1 M. & S. 318.

The contribution for the freight lost on the goods jettisoned is estimated at the freight they would have paid on the arrival of the ship (r).

The charterer or shipper, and not the shipowner, is the person liable to contribute in respect of freight paid in advance (s).

The seamen never contribute on account of their wages, Wages. except in the single instance of the ransom of the ship (t).

The goods sacrificed for the general benefit are not contributed for, when nothing is saved. If the ship weathers the danger to avoid which the goods were sacrificed, but is afterwards during the same voyage wrecked, whatever is saved from the wreck must contribute to compensate the owners of the goods previously sacrificed (u).

CASES.

1. A vessel was chartered by government to carry convicts to New South Wales, and was stored by government with the necessary provisions. In the Downs the furniture of the ship was lost and damaged for the preservation of the ship and cargo. Held, that the provisions shipped by the government were not liable to contribute to the general average (v).

2. The plaintiffs shipped cattle as a deck cargo. A storm arising during the voyage the cattle were thrown overboard. The jettison was proper and necessary for the safety of the ship. Held, the plaintiffs could not recover from the shipowners a general average contribution for the loss of the cattle (x).

3. Under a charterparty 8007. was to be paid on delivery of the cargo. The remainder of the freight (4,8007.) was paid in advance. A general average loss was sustained during the voyage. Held, that the shipowners were only liable to contribute in respect of the 8007.; but that the charterers must contribute in respect of the freight paid in advance (y).

$122.

Though the ship, freight, and cargo be insured, the owners thereof are the persons primarily liable for the

(r) Stevens on Av. p. 20.

(s) Frayes v. Worms, 19 C. B., N. S. 159; see "Cases" (3) at end of this §.

(1) Abbott, pt. vi. ch. i. s. 11.
(") 1 Emerigon, c. xii. s. 41,

p. 602.

(r) Brown v. Stapyleton, 4 Bing.

119.

(x) Wright v. Marwood, and Gordon v. Marwood, supra.

(y) Frayes v. Worms, supra.

Rights and duties of

owners of ship and cargo.

Lien for general average-when.

Adjustment of general average.

general average contribution, each of them having a right of action on his policy against the underwriters. By virtue of an express stipulation inserted to that effect in the policy, the owner of goods jettisoned may, in the first instance, sue the underwriter for the amount of his loss, the rights of the owner against the third person being transferred to the underwriter on his paying the loss ().

The owners of the ship, freight, and goods, are not jointly but severally liable for their respective shares of the general average contribution. If they are, however, joint owners of the ship, freight, and cargo, they will be jointly liable for the contribution. But if such a joint owner insure his interest separately, he cannot recover from his underwriters what he may have paid for his co-owner (a). The shipowners have a lien on the cargo for any general average due from the owners of the cargo (b).

But the owners of the goods have no lien for general average, when due by the ship (c).

A consignee of goods (not the owner) receiving them under a bill of lading, is not rendered liable for general average by merely receiving the goods; unless the bill of lading made the payment of general average a condition precedent to the delivery of the goods (b).

§ 123.

The place for the adjustment of general average will be the ship's port of destination or discharge. If it happen to be a foreign port it will be adjusted there, according to the law and custom of the state to which the port belongs. It is then termed a foreign adjustment.

A foreign adjustment of general average will, whether the loss be according to English law a general average loss or not, bind all the parties to the adventure (d). Further,

(2) Dickenson v. Jardine, L. R.,

C. P. 639.

(a) 2 Phillips, No. 1411.
(b) Scaife v. Tobin, 3 B. & Ad.
523, 528.

3

(c) The North Star, 29 L. J., Ad. 73.

(d) Simonds y. White, 2 B. & Cr. 805, 813; Daglish v. Davidson, 5 Dowl. & Ryl. 6.

the underwriter who has insured the risk, will also be bound by a foreign adjustment in cases where the policy provides that the general average should be paid as per foreign statement (e).

It is the duty of the shipowners, where a general average loss has occurred; to procure an adjustment of the general average, and secure its payment. Should they deliver up the cargo without doing so, they will be liable to an action for damages (ƒ).

how calcu

If the average is calculated at the ship's place of desti- Averagenation, the goods (including those jettisoned) are valued lated on for average at the price they would have fetched there, goods. freight, duty, and landing charges being deducted. And the owners must contribute according to the value put on them. But if the average is calculated at the port of lading, they will be valued at the invoice price (g), with the shipping charges added.

In ascertaining the general average contribution to be paid by the shipowner in respect of goods jettisoned, their value will be estimated at the probable sum they would have realised at their port of destination. If, therefore, from the damaged condition of the remainder of the cargo, and other circumstances, it can reasonably be inferred that the jettisoned goods would, had they not been thrown overboard, arrived in a like damaged condition, their value will be estimated at the price they would have realized as damaged goods (g).

custom.

The computation of a general average contribution will Adjustment governed by be governed by any well-established custom or usage of trade. But a long-continued practice of average adjusters, who prepare their statements according to the law as laid