Harrison v. Bank of Australasia. 1872 the cost of repairs in general, which notoriously falls on the shipowner. Cohen in reply. It is expressly found that the supply of coals was adequate, and that the ship was seaworthy; no fault, therefore, can be imputed to the shipowner (1), and the question turns only on whether the peril was of such a nature as to give rise to a claim for general average. It clearly was, unless it is essential that there should be an imminent peril of immediate destruction. But this is not the test, as is shown by the instances where expenses incurred on account of ship and cargo, safe in port, but waiting for a convoy, or delayed by proceedings necessary to redeem the whole adventure from capture, are allowed as general average. There was here a moral certainty of total loss unless the measures actually taken were resorted to; for no change of circumstances could reasonably be anticipated which would have the effect of preventing it, and this is all that is required. Cur. adv. vult. Jan. 17. The Court being divided in opinion, the following judgments were delivered : MARTIN, B. This is an action in which the question is, whether the plaintiff is entitled to recover a sum of about 40%. for general average; and although the amount in dispute is not large, the question involves a matter of very great importance to the mercantile and shipping interests of this country. The facts have been stated by an arbitrator in a special case. The first four paragraphs state the plaintiff is the owner of a ship called the Champion of the Seas, which in February, 1868, was at Melbourne, bound on a voyage to London, and that the defendants shipped on board four boxes of gold, for which the master signed the ordinary bill of lading. The bill of lading is not set out, but it would state that the *defendants had shipped on board the four boxes of gold to [47 be carried from Melbourne to London, and there delivered to the consignee upon payment of a certain ascertained sum for freight, unless prevented by the perils mentioned in the bill of lading. This is the only contract between the plaintiff and defendants, and it is clear that if the Champion of the Seas was the veriest (1) See ante, p. 40, n. 1872 Harrison v. Bank of Australasia. sculk which ever sailed, and if she departed from Melbourne only half manned and utterly unseaworthy, nevertheless, if she had arrived in London, and the four boxes of gold had been there delivered to the consignee, the plaintiff would have performed his contract, and would be entitled to his freight. The defendants would have no legal ground of complaint that the ship was half rotten, that she was half manned, that instead of sailors she had a donkey-engine and a quantity of fuel utterly insufficient to work it for the voyage. The answer of the shipowner would be, "Your four boxes of gold have been safely delivered to you in London. I have performed my contract. The manner in which I have performed is my business, not yours." The real question in the present case is, whether the shipper (the merchant) is bound by law to pay to the shipowner, for the performance of the service contracted for in the bill of lading, a sum of money beyond that stipulated for in the written contract between the parties. [The learned judge here stated the effect of paragraphs 5-14 and the claims made by the plaintiff, stating the claim as to the donkey-engine to have been abandoned, and proceeded.] The question is, whether either of the above claims is general average, and I am of opinion that neither of them is. It seems, in reason, highly unjust that the merchant should be called upon to pay the two sums claimed. He had contracted with the shipowner to pay him a certain sum for the conveyance of his four boxes of gold from Melbourne to London. The shipowner was to provide the ship and seamen to perform the service, and he thought fit, instead of hiring ten additional men, to have a steam-engine, which, in order to its being of any use, necessarily required fuel. He did provide at Melbourne what he reasonably deemed sufficient, but it turned out he was in error, and that the supply was not sufficient. How, in reason, does this relieve him from the obligation of doing his best to 48] remedy the short supply, and cast upon the *merchant the obligation of contributing to the loss and expense which he incurred in consequence? There is no doubt, however, that long-continued custom has created the claim called "general average." This subject is treated in the 1st chapter of the 6th part of Abbott on Shipping, 11th ed., p. 521. It is said by Lord Tenterden to be founded on the "Lex Rhodia de Jactu," or, in Harrison v. Bank of Australasia. 1872 other words, the law of jettison, which is, that if for the sake of lightening the ship a jettison (jactura) is made of merchandise, that which is sacrificed for all should be made good by the contribution of all. His lordship comments upon it, and proceeds to state its true principle; that there must be a voluntary sacrifice for the good of all, and made at a moment of imminent danger, which he instances by the ship being in danger of perishing by a hurricane, or by the quantity of water that may have found its way into it, or by laboring upon a rock or a shallow upon which it may have been driven by a tempest, or when a pirate or enemy pursues, gains ground, and is ready to overtake; the loss arising from throwing merchandise overboard under such circumstances is to be made good by general average. He then proceeds to discuss cases, in which, in analogy of the law of jettison, general average has been allowed; and as it seems to me, is rather disposed to think they have gone too far. The subject is discussed at great length by the learned editor in the notes, and I think he has, at the conclusion of note (n), p. 537, expressed the true rule, viz., that to make expenses incurred by the shipowner general average, they must be expenses voluntarily and successfully incurred, or the necessary consequence of a resolution voluntarily and successfully taken by a person in charge of a sea adventure, for the safety of ship and cargo, under the pressure of a danger of total loss or destruction imminent and common to them. In my opinion, in the present case there was no imminent danger of total loss when the spars and wood were cut up and burnt. The weather had moderated for the sixteen days previous, there was a ton and a half of coal remaining, which it was proper to husband, and the spars and wood were used to burn with the coal. There could clearly have been no jettison at the time, and, in my opinion, the shipowner must bear the loss of his timber being made use of to aid in making up for the deficient coal. For the same reason, I think the price of the coal *bought on the 5th of May is not [49 general average, and must be borne by the shipowner. In my opinion there was no present immediate peril imminent. The cases relied on on behalf of the plaintiff were Birkley v. Presgrave (1), and Plummer v. Wildman (2); these cases were said by the learned counsel for the defendants to be, although perhaps (1) 1 East, 220. (3 M. & S., 482. 1872 Harrison v. Bank of Australasia. apparently in favor of the plaintiff, yet in reality not so; and he relied on Power v. Whitmore ('); Hallett v. Wigram (2), and Wilson v. Bank of Victoria (3). In my opinion, the two cases last mentioned were correctly decided, and are accurate exponents of the law. In Mr. Arnould's book it is said (vol. ii, 3d ed., p. 782), that where a rudder had been carried away and a spare spar was got up to make one, it was decided to be general average. The circumstances of the case are not. stated. I think the question in the present case is one of fact, and that the case does not show that at the time when the spars and wood were cut up to add to the coal, or at the time when the coal was bought from the bark, there was such imminent danger of the ship's sinking that the loss and expenses incurred by the shipowner ought to be contributed to by the merchant. I think that in reason, and in accordance with his contract, he ought to bear the loss and expense himself. This judgment was read by CLEASBY, B., who then added: I have read the judgment which my Brother Martin has written, and I agree in that judgment. I will only add two remarks. First: I think the statement in the case does not afford sufficient materials for the conclusion that any sacrifice was made at a time of imminent danger. The captain would not have been justified in making a jettison of a portion of the cargo to diminish the leak, and so lessen the necessity for continuous use of the donkey. It was a proper and prudent thing in the captain to guard against the supply of fuel failing, and the possibility of his being unable to get a further supply in time. But this prudence is not sufficient to justify a 50] jettison or any other *sacrifice, so as to lay a foundation for general average. It does not appear upon the case how long the coal would have lasted after the 16th of April, when the captain began to use the spars; nor how much remained at the time when the fresh supply was obtained; but it does appear the spars were only used to eke out the coal, and that they lasted from the 16th of April to the 5th of May. The danger in reality was not of going to the bottom if no(1) 4 M. & S., 141. (*) 9 C. B., 580. (3) Law Rep. 2 Q. B., 203. Harrison v. Bank of Australasia. 1872 thing was done, but the improbability of meeting with a supply of fuel during the interval while the existing fuel was being consumed. And it appears to me that this not only is insufficient to establish such a case of imminent peril as is necessary to found a claim to general average, but negatives it. The other remark is, that some difficulty is created in this case by referring to American authorities on this subject, and to Stevens on Average, and other works of a similar nature. The law in America does not in all respects agree with ours on the subject of general average (as will be pointed out shortly), and the other works referred to do not, in my opinion, correctly state the English law on the subject. We were pressed with many authorities to show that imminency of danger was not necessary to make the expenses incurred by a vessel in going into port to repair a subject of general average. It is undoubted that when some sacrifice has been made (for example, cutting away masts, &c.), the expenses consequent upon going into port after the danger is over to repair this loss are in England the subject of general average; because going into port, though there is no imminent danger at the time, yet being rendered necessary by the sacrifice made in imminent danger, stands upon the same footing as the sacrifice itself. But the expenses attending the going into port to repair sea damage caused by a storm when no sacrifice has been voluntarily made, do not, it is submitted, form items of general average according to English law, although they are regarded as doing so in America: 3 Kent's Commentaries (10th ed.), p. 329, and note. The distinction is clearly pointed out in the judgment in Power v. Whitmore (1). The case of Plummer v. Wildman (2), relied upon by the plaintiff, might appear to countenance the opinion *that [51 the expenses consequent upon putting into port to repair sea damage for the benefit of all, went into general average; but that case must always be taken with the explanation given by Lord Ellenborough in Power v. Whitmore (3), in the following year. He was the judge who presided when both cases were decided, and in the latter case he points out that in Plummer v. Wildman (4), the master had cut away the rigging in order to (1) 4 M. & S., at p. 149. (2) 8 M. & S., 482. () 4 M. & S., at p. 149. () 3 M. & S., 482. |