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PREFACE TO THE FOURTH EDITION.

THE publication of the present Edition of this Work has been considerably delayed, by reason of the long litigation of the cases of Atwood v. Sellar and Svendsen v. Wallace, which for a time had the effect of bringing a complete uncertainty over the proper treatment of the expenses consequent on putting into a port of refuge to repair damages. This is a question of every-day practice; one of the most ordinary incidents of maritime commerce, as affected by injury to the ship; and, so long as this question remained undecided, there was an ugly chasm open in the very midst of the law of general average so that, desirous as I naturally was to replace the volume when it went out of print, the time when such a question had been raised but not answered was a peculiarly unfit time for doing so. Even more, however, than the importance of the question at issue in point of extent, the way in which it was mixed up with Mr. Justice Lawrence's definition of general average, so that the solution of it might naturally lead to an extension or contraction of the very idea of general average in the English courts, tended to the same result. According to that definition, which for nearly a century has been the keystone of the English law on this subject, general average is "all loss which arises in consequence of extraordinary sacrifices made or expenses incurred for

the preservation of the ship and cargo." But the very raising of this question, in other words, the asserting that, when a ship has been so damaged in a storm at sea that she must, for the preservation of the ship and cargo, be taken into a port of refuge, some of the extraordinary expenses, i. e., some of the loss, which arises in consequence of the changing the ship's course and resolving to bear up for such port, ought to be treated as general average, and other portions ought not, is tantamount to an admission either that the definition is inaccurate, and therefore ought to be amended, or that there is room for a double meaning or obscurity somewhere in it, and therefore again that it ought to be amended. If, of an act for the preservation of ship and cargo, some of the admitted and unquestioned consequences are the subjects of general average and others are not, it cannot be right that the definition of general average should say all consequences are. But perhaps the word "consequence

is in the definition used in a technical and restricted meaning. If so, however, that meaning ought to be somewhere clearly laid down,-somewhere, if not on the definition itself. The English common law has, for example, a very large cluster of cases, most ordinarily known in a lawyer's memoria technica as belonging to a list headed by the two names of Hadley v. Baxendale, and furnishing very amusing reading concerning unexpectedly remote and surprising consequences, and the way in which they are treated in courts of law. They may be sought for, I believe, under the general title of "The measure of damages." Svendsen v. Wallace has not yet, I believe, been put among them, though I suppose it might be. These speak of "consequence" as meaning, in this sense, that which happens in the ordinary or natural course of things, and therefore that which

Thus, if we are

naturally might have been foreseen. told that, when a ship puts into a port to repair, the act of discharging her cargo there in order to repair is a natural consequence of that act, but the acts of afterwards putting the cargo thus made homeless into a warehouse to protect it from injury, and afterwards the act of taking the cargo on board again in order to carry it with the ship, though the shipowner was bound by contract to protect and carry on the cargo, these two last acts are not the natural and ordinary consequences of the discharging, we have the satisfaction of knowing we are under the rule of some sort of principle, though it may be one of which it is hard to follow the application. But, while you are dealing with a subject of which the definition is having its "consequences" thus settled, it certainly is not a good time for bringing out a fresh edition of that which was intended to be an explanation of it.

Now, however, the decision having been given, this impediment is removed. I should have been glad indeed if the result of this litigation had been conformable to the opinion of the minority of the judges, and particularly to that of Lord Justice Baggallay, who alone was on both the trials, and maintained the same view from first to last, viz., that, it having been agreed on all hands that the expense of entering the port of refuge and of discharging the cargo should be treated in the same way, i.e., as general average, whether the ship went in to repair damage done by accident or by a sacrifice for the common safety, the cost of reloading the cargo should likewise be treated in the same way in both these cases. Technically stated, in both these cases, the general average act on which the claim was founded was the act of bearing up for a port of refuge; and the cost of