Page:Harvard Law Review Volume 9.djvu/213

185 GENERAL AVERAGE, 185 GENERAL AVERAGE. "QUI SENTIT COMMODUM SENTIRE DEBET ET ONUS." THE occasion for this article is a recent decision of the Supreme Court/ that damage caused by water poured into the hold of a vessel in port to extinguish a fire, and by scuttling the ship for the same purpose, when done by the fire-engine com- panies of the municipality, is not a subject for a general average adjustment, provided they came without the master's initiative, and were not within his control, and a similar decision made in Massachusetts in 1883.^ These decisions I purpose to review. The decisions upon the precise point are few, and entirely irre- concilable. In the Massachusetts case, Mr. Justice Field states with great clearness the view taken by the court. Mr. Justice Gray, giving the opinion of the majority court in Ralli v. Troup, approves this decision, and quotes largely from the opinion of Field, J. His own opinion consists of a very learned and thorough exposition of the decisions, which will always be valuable, though, upon the particular point in judgment, I cannot find in the deci- sions support for his conclusion. On the other hand, the decision in the District Court by Judge Addison Brown,^ and the minority opinion in the Supreme Court, given by Mr. Justice Brown for himself and Mr. Justice Harlan, should be referred to for able arguments on the other side. Other cases which I shall mention support the minority opinion. In this divergence of opinion, my comments must be regarded as argumentative and not dogmatic ; and in the paucity of decisions, the underlying principle of general average must be considered. The general summing up at the end of the majority opinion in Ralli V. Troup is too long for quotation in full Stated briefly, the first proposition is, that to constitute a general average loss there must be a voluntary sacrifice of part of a maritime adventure, for 1 Ralli V. Troup, 157 U. S. 386. 3 2n Fed. Rep. 888. 25
 * Wamsutta Mills v. Old Colony Steamboat Company, 137 Mass. 471.