Page:Federal Reporter, 1st Series, Volume 9.djvu/190

. 'THE ALCONA. 1T5 �In Birkley v. Presgrave, 1 East, 228, it was merely decided that an action of assMmjosi*, would: lie by the owner of the ship to recover from the cargo its proportion of a general average loss; but the declaration in that case expressly alleged that the sacrifice was nec- essarily made in order to preserve the ship and cargo from perishing bystorm. �In Thornton v. U. S. Ins. Go. 12 Me. 150, which was an action upon a policy of insurance, it appeared that the vessel, being on a voyage from Eichmond to Bremen, waB compelled to put into Guxhaven, an intermediate port, for the preservation of tho ship, cargo, and lives of the crew, So in the Bedford Ins. Co. v. Parker, 2 Pick. 1, it ap- peared that the vessel struck on a reef of rocks outside the harbor of New Bedford, at the distnnee of about nine miles from the. town, but within 80 or 90 yards from the shore, and was in imminent peril from the sea, the tide flowing into and ont of her; and filling the hold; The question was whether iron taken off the ship before the ship itself was gotten off waa subject to contribution. In the case of McAndrews, V. Thatcher, 3 Wall. 347, the same question was considered, and Mr. Justice Clifford expressly says : �"It cannot be doubted that the ship and cargo were jointly exposed to a common peril, and were in imminent danger of being wholly lest. SUeh being the fact, it is clear that the expei^es of saving the ship and cargo were a proper subject of joint and ratable contribution in general average by vessel, freight, and cargo, provided the vessel and cargo were saved by the same series of meaaures during the continuance Of the common peril which created the joint necessity for the expense." < . : �The continental writers are equally explicit to the point that immi-, hent peril of loss is an essential ingredient in a claiin for general average. Says Goirand, in commenting upon article 400 of the French Commercial Code : �"Four conditions are. indispensable to general average, the absence of any one of which sufflces to render the average particular. In oirder that the average be general, it is necessary (1) that the damages or expenses arise frbm the voluntary act of man; (2) that such volutitary action has had for object to save the ship and cargo frorn immediate danger of loss; (3) that such danger has equally menaeed both ship and cargo; (4) • that the volun- tary sacrifice bas been attended with beneBcial results, — that is to aay, has led to the preservation of the ship and carep." �The civil-law courts are even stricter than ours in requiring a pre- vious consultation with the crew, and parties interested in the cargo who may be on board. A report of the deliberation must be drawn ��� �