Page:Harvard Law Review Volume 9.djvu/214

186 1 86 HARVARD LAW REVIEW, the purpose and with the effect of saving the other parts from a peril impending over the whole. Thus far I agree, and the case in judgment is within the defini- tion, which contains, in my opinion, not only the truth, but the whole truth. The summary then goes on to limit the rule. It says that the sacrifice must be with the sole object of saving the other parts of the adventure ; that it must be made by the will and act of its owner, or of the master of the ship or other person intrusted with control of the common adventure ; that port authorities being strangers to the adventure, and their right and duty being derived from the municipal law, and not from the law of the sea, and since in their action they are not subject to be controlled by the owners of the adventure, their acts are not general average acts. One sentence I quote in full. Speaking of the port authorities, the opinion says : " Their sole office and paramount duty, and it must be presumed their motive and purpose in destroying ship or cargo, in order to put out a fire, are not to save the rest of a single maritime adventure, or to benefit private individuals engaged in that adventure ; but to preserve the shipping and property in the port for the benefit of the public." This last statement I will consider now, as I shall not refer to it again. The learned judge appears to be likening the putting out of a fire on a ship to the destruction of a house which is not on fire to stop the spread of a conflagration, which by the common law is not to be paid for ; though statutes in some States have, I believe, remedied this oversight. That was not at all the case before the court. The fact was that the fire companies poured water into a ship on fire, and afterwards scuttled her. The intent of any one, company or individual, in trying to put out a fire is to put out that fire ; and it is as much the duty of a municipal fire company to put out a fire in a house or ship, when other property is not endangered as when it is. I shall assume, without furthur argu- ment, that the intent of the fire companies was to put out this fire, and therefore necessarily their intent, if they had any besides an intent to do their duty, was to benefit whomsoever they might benefit thereby. The proposition that the sole intent must be to benefit the common adventure, I shall refer to presently. My position is that the doctrine is stated in the first sentence above quoted, that there should be a voluntary and successful sacrifice of part of a maritime adventure with intent to save the