Page:Encyclopædia Britannica, Ninth Edition, v. 3.djvu/163

Rh hooked to some object at the bottom and cannot be raised, the loss is borne by the shipowner. When sails, ropes, or other materials are cut up and used at sea for the purpose of stopping leaks or to rig jury-masts, or when the common benefit requires that they should be applied to some purpose for which they were not originally intended, the loss is made good in general average. The same rule applies to the case of hawsers, cables, anchors, sails, or boats, lost or damaged in attempt ing to force off a stranded vessel from the shore. The damage sustained in defending a ship against a pirate or an enemy is not the subject of general average in this country ; it is treated as particular average on the ship. It has been much debated by writers on maritime law, whether the voluntary stranding of a ship, in order to pre vent her from foundering, should be treated as a general or as a particular average loss. In the United States it has been settled, by judicial decision, that the loss in question constitutes a general average claim ; but the opposite doctrine is acted upon in the usage of Great Britain, and the point has never been decided by the courts of law. It appears to us that the argument greatly preponderates against the rule adopted in the United States, and in favour of the usage established in this country. The only reason for regarding this loss as the subject of general average is, that it originates in the inten tional act of running the ship aground, for the preservation, .as far as possible, of the whole interest concerned. But it tan seldom be known beforehand how the different interests at stake will be specially affected by the act in question ; whether, for instance, the damage to the cargo may not be more serious than the damage to the ship, or vice versa. Thus no particular part of the interest can be said to be intentionally sacrificed for the benefit of the whole ; the intention, indeed, is not to sacrifice any one part, but to place the whole interest in a situation of less peril than it would otherwise have been in. What particular damages may thereafter ensue to either ship or cargo will depend, in each case, on a variety of circumstances entirely accidental in their character, and therefore in no proper sense the subject of previous intention. The same rule, therefore, which excludes from general average accidental damages in all other cases, ought to exclude them in this case also. Moreover, when the alternatives are either that the vessel be left to founder, or that she be run ashore with a chance of preservation, there can really be no room for choice, or, at all events, the elements of will and intention are entirely subordinate in the part they must play under the pressure of the existing circumstances ; and in this view the stranding is as truly inevitable as if it had been caused by the force of the winds and waves alone. But, even were these reasons less weighty than it appears they are, a serious practical objection might be urged against the doctrine that voluntary stranding should be a general average loss, on the ground that it would in most cases be impossible to distinguish between the damages received by the ship and cargo prior to the stranding, and those sustained after or in consequence of it. It is needless to remark, that before a ship can be in such imminent danger of foundering as to render it necessary to run her ashore, she must be presumed to have sustained a very considerable amount of damage ; and the probability is, that the cargo also will have suffered to a corresponding extent. Up to this point these damages are confessedly particular average ; and were it held that the damages after the stranding were the subject of general average, it would, of course, be necessary to distinguish the separate damages that belonged to each. But in every case these different damages would exist in varying proportions, yet always so incorporated together that justice could never have a more perplexing task than that of discriminating between them. No general rule could be applied that would meet the widely different circumstances of each particular case; and the arbitrary method of adjustment that would alone be possible would doubtless give rise to endless dissatisfaction and dispute. On the ground of expediency, therefore, as well as on that of principle, the usage now established in this country ought to be main tained, notwithstanding the high authorities by whom the opposite practice has been countenanced. The amount of general average losses on the ship is compensated by allowing to the owners the cost of repairs, or of new materials in place of those sacrificed, subject to the deduction of one-third for the difference of value between old and new ; but no deduction is made from the cost of new anchors, and only one-sixth is deducted from the cost of new chain cables. If the ship be on her first voyage (which is held to include the homeward as well as the outward passage), the repairs and new materials are allowed in full. We now proceed to notice the second principal class of general average losses, consisting of extraordinary expendi tures incurred with a view to the common benefit. When a ship is obliged to put into a port of refuge, in consequence of damage received in the course of the voyage, the usage in this country is to allow as general average all the charges connected with the entrance of the vessel into the port, and with the landing and warehousing of the cargo, when this is necessary to admit of the ship being repaired. Thus the expenses of pilotage or other assist ance into the port, the harbour dues, and similar charges, the costs of the protest taken by the master and crew, and of the survey held to ascertain whether the cargo requires to be discharged, together with the charges for landing the cargo and conveying it to a warehouse or other place of safety, are all made good as general average. The costs of repairing the ship are charged to general average only in so far as the repairs may refer to damages which are themselves the proper subject of general contribution. If the damages are of the nature of particular average, as is more usually the case, they are charged accordingly ; or if they proceed from &quot; wear and tear,&quot; they are stated against the shipowner. The warehouse rent for the cargo at a port of refuge, and any expenses connected with its preservation, form special charges against that particular interest, and are borne by the proprietors of the goods, or by their insurers. When goods are insured &quot; free from particular average, unless the ship be stranded,&quot; it is necessary, if the ship has not been stranded, to distinguish the charges for warehouse rent and fire insurance from those incurred in connection with the preservation of the goods from the effects of damage, the underwriters being liable for the former, but not for the latter. The expenses of reshipping the cargo, and the pilotage, or other charges outwards, are borne by the freight. If the entire cargo cannot be taken on board again, from the want, at the port of refuge, of the usual facilities for ^tow ing it, the loss or expenses resulting from the exclusion of part of it are not treated, in this country, as the subject of general contribution. The wages and provisions of the master and crew during the period of detention at a port of refuge are not admitted as a charge against general average, it being held that the shipowner is bound to keep a competent crew on board the ship from the commencement to the end of the voyage at his own expense. The charges for agency at a port of refuge are brougu against the general average, even though they may have been originally made in the form of separate charges 