THIS subject belongs more properly to admiralty law than to insurance; but it is so intimately connected with insurance adjustments, and with the rights of the contracting parties under a policy of marine insurance, that it cannot well be altogether omitted. § 118. General Average.—The rule of general average has its basis in the community of interest existing between the owners of ship and cargo, by reason of which losses intentionally incurred for the common safety ought to be equitably apportioned among the interests thereby benefited. General average is a contribution made by the parties to a marine adventure to defray the cost of extraordinary expenses or sacrifices incurred for the preservation of the ship and cargo. The distinction between a general and a particular average lies in the fact that in the former case there is a general distribution of the loss among the parties to the adventure, while in the latter case there is a special application of the loss to one or more of the parties. Every partial loss is particular average in relation to the party who first sustains it, whether that loss is ultimately to be made good by a general contribution or to remain where it falls. The right to general average and its co-relative obligation are not founded necessarily upon contract, but arise from the common law of the sea, which is applicable to all who are engaged in maritime commerce.1 The earliest trace of this ancient rule of maritime law is to be found in an extract from the Rhodian law which was incorporated in the Roman civil law. Thence it found its. way into the common law of England, and became an implied 1 Burton v. English, L. R., 12 Q. B. D. 218. term both in the contract of affreightment and the policy of marine insurance. § 119. General Average Losses.—A carrier by water may in case of extreme peril to the ship and cargo, when it is necessary for the safety of the adventure, throw overboard any or all of the cargo or appurtenances of the ship, or otherwise sacrifice the whole or any part of the cargo of the ship, or incur expenses for such purpose.1 Thus goods or parts of the ship may be cast away to save the ship from foundering in a storm, or to float her when stranded, or to facilitate her escape from an enemy. Throwing property overboard for such purpose is called jet tison; and the loss caused thereby, or by any other sacrifice or expense voluntarily made for such a purpose, is called a general average loss, and is the subject of general average contribution by the interests (whether ship, cargo, or freight) which are thereby saved." If the jettison is successful at the time, and the ship continues on her course but is afterward wrecked, whatever is saved from the wreck must contribute to the original jettison; but if the goods jettisoned be afterward recovered, and the ship proceeding on her course be afterward lost, the goods need not contribute toward the loss of the ship. In the case of general average expenses properly incurred under the circumstances as then existing, it has been said that the ratable contribution is due from the different interests intended to be benefited, whether the experiment is itself the cause of the benefit or not; and on principle it would seem as though this were the better rule to apply to all such justifiable sacrifices made for the common benefit.s A jettison must be made in good faith and with prudence, and ought, so far as possible, to begin with the most bulky and least valuable articles. But of necessity the master of the ship must be left free to take such steps as he deems necessary for the preservation of the interests intrusted to his care. 1 Sweeney v. Thompson, 30 Fed. R. 121. Hobson v. Lord, 92 U. S. 397. Star of Hope, 9 Wall. 203. 2 Harris v. Moody, 30 N. Y., 266; s. c., 86 Am. Dec. 375. Scudder v. Bradford, 14 Pick. 13; s. c., 25 Am. Dec. 355. Spofford v. Dodge, 14 Mass. 66. In early times the performance of a general average act was usually preceded by a consultation between the master and the merchants, who frequently accompanied their wares upon the voyage, with respect to the necessity for an extraordinary sacrifice for the common safety, and the best means of attaining that end. Although such a conference has long since been discontinued in practice, there is a sense in which it is still held in theory, inasmuch as the master becomes agent for the owner of the cargo as well as for the ship-owner in times of emergency, with authority to bind both parties in the adoption of such measures as are expedient in the common interest.1 The general average act, then, must be judicious. Its starting point is danger, and its objective point is safety. If the master is disabled, whoever is in active command of the ship may, in case of necessity, make the jettison or other sacrifice.2 It is one of the commonly accepted rules in the law of general average, that the party whose negligence has made the sacrifice necessary cannot claim contribution in general average.3 § 120. Sacrifices Enumerated.—The sacrifices recoverable under the principles above stated include the following: The cutting away of masts, spars, or sails to right a vessel which is on her beam ends or to rescue her from other imminent peril; the shipping of her anchors and chains to avoid stranding or collision; the breaking of bulwarks to relieve the vessel of water which floods her decks; the jettison of cargo materials or stores for the common safety; the extraordinary use of materials and stores in moving a stranded ship off the ground, such as the setting of the sails for that purpose in case of a sailing vessel, the breaking of the engines in the case of a steamer, or the use of anchors, chains, bolts, hawsers, etc., in either case; the scuttling of a vessel for the purpose of admitting water to extinguish a fire; the use at sea of spare spars, sails, ropes, or other materials and stores for the purpose of 1 Gratitudine, 3 Chas. Robinson, 240. 2 Ralli v. Troop, 37 Fed. Rep., p. 888. Lawrence v. Minturn, 17 How. 110. Price v. Noble, 4 Taunt. 123. Robinson v. Price, L. R., 2 Q. B. D. 91. The Parana, L. R., 1 Prob. Div. 452. Portsmouth, 9 Wall. 682 4 Margareta Blanca, 14 F. R. 59. 'Ralli v. Troop, 37 F. R. 886. stopping a leak, rigging jury masts, fishing sprung masts, or for any other purpose where the common safety appears to necessitate the sacrifice; the sale of ship or cargo or part thereof,1 and in the United States the jettison of deck load when its stowage on deck is warranted by custom; and also damage from voluntary stranding of the ship, and repairs thereby necessitated.3 The principal sacrifices of cargo other than jettison and its consequences which come into general average are as follows: Any loss or damage which cargo may suffer through being discharged on to the shore, dragged through the surf, landed in rafts, placed in lighters, put on muddy ground, or otherwise treated in an unusual way to float a stranded ship; but when goods once reach a place of safety, they cease thereafter, according to the English rule, to be at the risk of the general interest.5 Any loss or damage to cargo necessarily arising from a forced discharge when the cost of the discharge is allowed in general average is itself allowable." Any loss or damage to the cargo, whether suffered by water on board, or otherwise admitted into the ship's hold to extinguish a fire. Any loss or damage to cargo caused by water entering the ship's hold through holes made by the fall of a mast cut away for the common safety, provided such loss or damage was the proximate result of the cutting away.7 The loss of cargo consumed as fuel to work a steamer's engines or a donkey engine in time of peril, provided the supply of fuel was originally sufficient. Passengers' baggage, though itself not liable to contribute.8 § 121. Deck Load.-In the United States and England, in the absence of an express prohibition in the policy, the courts allow a jettison of deck load to be included in general average, provided a custom of the trade can be shown justifying the loading of the goods on deck.1 But, if no such custom is proved, a claim for jettison of deck load cannot be allowed in general average, although if a deck load is saved by a general average act, it must itself contribute. There must be an actual intention to throw the deck cargo overboard in order to constitute a general average act.3 § 122. Voluntary Stranding.-In the United States. the voluntary stranding of a ship when in peril is held to be a general average act, and that irrespective of the question whether the vessel ultimately becomes a total wreck or not.1 But general average is not allowed in favor of the ship-owner if the voluntary stranding was made necessary by negligent navigation of the ship. A voluntary stranding is not allowed as a general average act by English practice in the absence of express agreement, and the rule there is said to be defended mainly upon two grounds: (1) that the stranding is not a sacrifice at all, nor the result of any selective discrimination. between different interests, but on the contrary is an attempt to put both ship and cargo into a situation of less peril; and (2) that in practice it is impossible to distinguish between damages received by the ship and cargo prior to stranding, which are admittedly particular and not general average, and losses sustained after or in consequence of stranding, which it is claimed should come into general average. The York Antwerp rules, it will be noticed, on this as on some other points, have struck a compromise between conflicting views. § 123. Port of Refuge, and other Expenses.-The most frequent cause of general average expenses occurs where a vessel in peril puts into a port of refuge for repairs to enable Wood v. 1 Harris v. Moody, 30 N. Y. 266; s. c., 86 Am. Dec. 375. Phoenix Ins. Co., 8 Fed. R. 27. 3 2 The Milwaukee Belle, 2 Biss. 197. The Adele Thackera, 24 Fed. R. 809. Barnard v. Adams, 10 How. 270. |