1872 Harrison v. Bank of Australasia. experienced ordinary weather, and whatever pumping was necessary was done by the crew. On the 10th of March the ship encountered a severe cyclone followed by very bad weather, which caused her to strain and make much water. The water in the hold at times increased to five feet, and could only be kept down by constant pumping. At first the pumping was done by the engine during the day, and by the crew during the night; but it afterwards became necessary to keep the donkeyengine pumping constantly. With the donkey-engine the pumps were got to suck now and then. 10. After the 1st of April the weather moderated, but the vessel continued to leak; and about the 16th of April the supply of coals was reduced to about one and a half tons, from the constant working of the engine. It was necessary to keep the engine at work, and the captain, after consultation with the first and second officers, in order to obtain fuel, directed that some spare spars and wood which were part of the ship's stores and not intended to be used as fuel, should be cut up to use with the coal. 10A. There was no sudden emergency which rendered the cutting up of the spars and wood necessary; but it would have been impossible to have kept the ship afloat with the crew alone without working the donkey-engine. 11. Wood alone would not have sufficed to get up the steam necessary to work the engine; and the captain acted prudently and judiciously for the preservation of the ship and cargo in obtaining fuel by cutting up the spars and wood to use with the coals. 12. The fuel so produced was not sufficient to keep the engine "at full work, and notwithstanding the efforts of the crew, who were occasionally assisted by some passengers in working the pumps, the water in the hold slowly increased. 13. On the 25th of April it was discovered that a butt under the port fore-channels, and six or seven feet below the waterline, had been started; whereupon the master of the ship lowered a boat and stopped it with grease, and on the 27th caused 42] a stage to be *rigged, and by means of wedges and plugs succeeded in partially stopping the leak. 14. On the 5th of May the ship fell in with the bark Peru, and obtained from her thirty-three bags of coals; with this sup Harrison v. Bank of Australasia. 1872. ply the engine was put to full work, and the water in the hold greatly reduced. 15. In order to procure a further supply of coals, the master determined to run into the port of Pernambuco, and the ship anchored at Pernambuco, on the morning of the 16th of May. 16. The ship could not have been repaired at Pernambuco, and the captain having obtained a large supply of coals, viz., thirty tons, proceeded on the voyage. The captain in so doing acted prudently. The ship was exposed to no serious risk from the water she made, while there was sufficient fuel on board to work the donkey-engine. 17. The vessel continued to leak during the remainder of the voyage, and it was necessary to keep the engine constantly at When she arrived in the Thames the coals had been exhausted. Without the aid of the donkey-engine the vessel could not have continued the voyage. work at the pump. 18. The ship arrived at her place of discharge in the docks on the 6th of July. The engine broke down while she was coming up the river. The injury to the engine was the result of wear and tear from the constant working during the voyage. The question for the opinion of the Court was, whether the cost of the coals purchased from the Peru and at Pernambuco, or the cutting up of spars and ship's materials for fuel for the 'donkey-engine, and the cost of the repairs of the donkey-engine, could be charged to general average, and recovered from the defendants. If the Court should be of opinion in the affirmative, the case was to be referred back to the arbitrator to ascertain if the amount paid into court was or was not sufficient to cover the plaintiff's claim against the defendants. And if he should find that such sum was not sufficient, then judgment was to be entered for the plaintiff for the deficiency, together with costs of suit. If the court should be of opinion that none of the said items could be charged to general average, then the judgment was to be entered for the defendants, together with costs of suit. *April 28; May 31. (1) Henry James, Q.C. (Cohen with [43 him), for the plaintiff. First, the plaintiff claims general ave(1) The case was twice argued, on the well, BB., and on the 31st of May before 28th of April, before Martin and Bram- the full Court. 1872 Harrison v. Bank of Australasia. rage in respect of the spars and wood used as fuel to drive the donkey-engine. This expenditure answers to the description given by Blackburn, J., in Wilson v. Bank of Victoria ('); it is "expenditure which is not only extraordinary in its amount, but is incurred to procure some service extraordinary in its nature;" it is also within Lord Kenyon's words in Birkley v. Presgrave (2), "All those articles which are made use of by the master and crew upon the particular emergency, and out of the usual course, for the benefit of the whole concern ;" and those of Lawrence, J., in the same case (3), "All loss which arises in consequence of extraordinary sacrifices made, or expenses incurred for the preservation of the ship and cargo;" see also Plummer v. Wildman (). This language agrees with the statements of text writers, both English and American: 2 Arn. on Mar. Ins. (3d ed.), pp. 773, 780; Machlachlan on Shipping, p. 570; 2 Phil. on Mar. Ins. (3d ed.), 83, p. 78, (ss. 1299, 1300). And the practice and opinion of average-staters is in conformity with it: Stevens on Average, p. 75; Bailey on Average, pp. 16, 17, 28, 99. The general principle which these authorities establish is, that any extraordinary sacrifice voluntarily and properly incurred for the common benefit of all, and to preserve ship and cargo from destruction, is matter for general average. Therefore, if the circumstances were such that without that sacrifice destruction was reasonably to be apprehended; or, in other words, if it would appear a necessary act to a reasonable and prudent man, it is matter for general average, notwithstanding there may have been no sudden emergency threatening immediate destruction. "The moment of the greatest distress cannot be waited for:" Benecke, p. 171. The plaintiff's claim answers these conditions. The necessity of the occasion is undeniable (see parr. 10–13); it was reasonably to be expected, and the result would in fact have been, that if the coals then remaining had been used up, the ship must have gone to the bottom. And 44] it is equally clear *that the purpose to which the spars were applied was extraordinary. If the rudder being swept away, a spare mast were cut up to rig up a new one, this would be matter for general average: see 2 Arn. on Mar. Ins. (3d ed.), p. 782; and the employment of spars to feed the fire is equally (1) Law Rep. 2 Q. B., at p. 213. (2) 1 East, at p. 227. (*) 1 East, at p. 228. (*) 3 M. & S. 482. Harrison v. Bank of Australasia. 1872 a diversion of them from their proper use, and therefore an outlay extraordinary in its character. The case may be tested by supposing that it became necessary to apply to this purpose timber forming part of the cargo; the master would clearly be entitled in such a case as the present to use the timber in that way, and the owner would equally be entitled to claim for general average; the shipowner sacrificing his own goods is in no different position, unless it can be shown that the necessity for their use arose from some fault on his part. But it is here found as a fact, that when the vessel sailed she had an adequate supply of coals; the necessity, therefore, was one not to be foreseen, and which supervened in consequence of an unexpected and extraordinary peril. Secondly, the plaintiff also claims in respect of the extra quantity of coals purchased for the donkey-engine. It is like the case of extra hands hired to pump, which would be allowed: Wilson v. Bank of Victoria. () The purpose was, " to preserve more subjects than one exposed to a common jeopardy;" and "an extraordinary expenditure incurred for that purpose is as much a sacrifice as if, instead of money being expended for the purpose, money's worth were thrown away :" Blackburn, J., in Kemp v. Halliday.(2) Thirdly, the injury to the donkey-engine was also the result of an extraordinary use of it in the preservation of ship and cargo; but this part of the plaintiff's claim, it must be admitted, is weaker than the rest. [He also cited Lyon v. Mells (3), Grill General Iron Screw Collier Co.(4), Farnworth v. Hyde (5), Taylor v. Curtis.(6)] Pollock, Q.C. (Lodge with him), for the defendants. The opinions of average-staters, whose customs vary at different ports, are no evidence of the law on general average. Neither can American *authorities be relied on, for it is well known [45 that the American law goes further than the English in allowing contribution for general average: 1 Parsons on Shipping, p. 538 (n.); Walthew v. Mavrojani (7). The last cited case also shows that Plummer v. Wildman (8) must be taken as limited by (5) 18 C. B. (N.S.), 835; 34 L. J. (C.P.), (1) Law Rep. 2 Q. B., at p. 213. () 6 B. & S., at p. 746; 34 L.J. (Q.B.), at p. 242. (3) 5 East, 428. (*) Law Rep., 1 C. P., 600. 207. (6) 6 Taunt, 608. (7) Law Rep., 5 Ex., 116. () 3 M. & S., 482. 1872 Harrison v. Bank of Australasia. Power v. Whitmore (1), as had been before explained in Hallet v. Wigram (2); and what is said in Birkley v. Presgrave (3) must be taken with reference to these later decisions; indeed the point actually decided in that case was only that an action would lie for general average contribution, and there was no intention to lay down any rule as to what would give rise to such a claim. Plummer v. Wildman (4), however, does not assist the plaintiff, for it only allows the costs of going into a port to repair damage which is the result of a general average sacrifice; and assuming such a sacrifice to have been made, the necessary consequence of it may very well be treated as part of the sacrifice itself. But here the whole question turns on whether there has been a voluntary sacrifice under such circumstances as to make it general average. The statements in the case show that there has not. The circumstances must be such as will justify a jettison, which cannot be where the necessity is caused by the shipowner's default (1 Parsons on Shipping, p. 411). Here the donkey-engine was equivalent to ten men; and, but for it, the ship would have been undermanned, and, therefore, unseaworthy: Clifford v. Hunter (5). But as the efficiency of the engine depends on there being sufficient fuel to keep it at work, the ship without sufficient fuel is as though it had neither the ten men nor any substitute for them, and the fault of the master in not having enough coal cannot entitle him to general average for burning spars. It is the shipowner's duty" to provide and do all that belongs to the proper navigation of the ship” (1 Parsons on Shipping, p. 382); and what has been done here has not gone beyond this duty. Again, there must be a sudden emergency, creating a peril which cannot be otherwise provided against. Here there was none such: see parr. 10 a. and 16. The case is still clearer with respect to the extra coal; no 46] *distinction can be drawn between purchasing a fresh supply of coal and using coal already on board; carried, for instance, to supply a coaling station; and it cannot be contended that the latter would have been the subject of general average. Wilson v. Bank of Victoria (6) is directly against this claim. As to the claim for the donkey-engine, it would be as reasonable to claim (1) 4 M. & S., 141. (*) 3 M. & S., 482. (°) Mood & M., 103 |