Page:Harvard Law Review Volume 9.djvu/215

187 GENERAL AVERAGE. 187 Other parts,^ and that the numerous subsequent limitations are not sustainable. The law of general average was originally called by the Greeks and Romans the law of jettison, from the simplest instance of its exercise, — that of throwing goods overboard to lighten the ship; and the rule was laid down, that what is given for the benefit of all should be made good by the contribution of all. This law as now administered does not depend upon evidence of the extent of any custom, nor upon any implied contract between the several persons interested in the adventure,^ though a fictitious contract has been imagined by some English judges, in order, ap- parently, to give the courts of common law jurisdiction after they had crippled the Admiralty, where the question properly belongs. Their position was that the Admiralty could not deal with contract, as such, which, indeed, was formerly the law of England. ** It is, indeed, a sight," says Maclachlan, " to witness the successors of the famous Twelve [meaning the judges who prohibited suits in the Admiralty] contending for the customs of the sea as the basis of general average, and at the same time the successor of the unfortunate judge of the Admiralty Court refusing jurisdiction over general average, because it rested on no such basis."^ The point is not of much consequence, because the imagined contract is confessedly a fiction, and those who use that expres- sion merely mean that persons may be supposed to contract to do what the law requires of them. The law of general average is an equitable rule analogous to that of contribution between persons subject to a common burden, but bound by no contract inter se^ and is imposed by law upon the parties. In the leading case, concerning contribution between co-sureties,* Lord Chief Baron Eyre, delivering the opinion of the court, said, " As in the case of average of cargo in a court of law, qui sentit commodum sentire debet et onus. ... In questions of average there is no contract or privity in ordinary cases, but it is the result of general justice, from the equality of burden and benefit." In another report of the case^ the language given is : " In the ^ Voluntarily means purposely. V. Libby, 14 Allen, 261, 267; Marwick v. Rogers, 163 Mass. 261, 267.
 * See Crooks v. Allan, 5 Q. B. D. 38 ; Burton v. English, 12 Q. B. D. 218, 220; Page
 * Law of Merchant Shipping, 4th ed. p. 690, note.
 * Bering v. Earl Winchelsea, i Cox, 318, 322.
 * 2 B. & P. 270,274.