Page:The New International Encyclopædia 1st ed. v. 02.djvu/368

AVERAGE. observance of such an agreement, these rules have no binding force upon litigants and are of value only as a careful statement of the views of experts. The law of general average is a part of the maritime law, or the law of the sea, as distinguished from the municipal law, or law of the land. They were introduced into English jurisprudence from the Roman law, which, in turn, had adopted its principles from the laws of Rhodes. A person's right to general-average contribution does not depend upon an express contract, although it may be modified by agreement. It rests upon mercantile custom; but a custom so definite and so well understood that every mercantile adventure is entered upon with the actual or presumed knowledge on the part of all interested that the right accompanies, and forms a part of, the transaction. Accordingly, some eminent judges have declared that the right now arises from an implied contract.

In order to constitute a case of general average, three things must concur, namely: (1) "A common danger; that is, a danger in which ship, cargo, and crew all participate; a danger imminent and apparently inevitable, except by voluntarily incurring the loss of a portion of the whole to save the remainder. (2) There must be a voluntary jettison, or casting away of some portion of the joint concern, for the purpose of avoiding this imminent peril; or, in other words, a transfer of the peril from the whole to a particular portion of the whole. (3) This attempt to avoid the imminent peril must be successful." It will be noticed that this statement of the principles by the United States Supreme Court is not broad enough to include eVery case where one person's property is destroyed for the purpose of saving the property of another. The sole object of the sacrifice must be that of saving a ship, its cargo, and crew from a common peril. If the ship or its cargo is sacrificed to save another ship, or other property not included in the common adventure, it is not a case of general average. Again, if the loss is involuntary, it is not the subject of general average. For example, if a ship is attacked by pirates, or by an enemy, anything voluntarily sacrificed by the master of the ship in buying off or getting rid of the assailant is a general-average loss; while anything captured is not. So, if a vessel lying at its dock, or its cargo, is injured or destroyed by local authorities, as incidental to the extinguishment of a fire or the preservation of outside property, it is not a case of general average: but it is such a case if the injury or destruction is authorized by the master, and, therefore, is voluntary. When it is said that the attempt to avoid the peril must be successful, all that is meant is that some portion of the common adventure must be saved from the peril. It is not necessary that the voyage be accomplished, or even that the property saved from the first peril be brought to its destination; its destruction from a second and distinct peril does not affect the general average arising from the first.

There are two exceptions to the rule that sacrifices or expenditures made for the preservation of the whole adventure are made good to the owner of the injured interest by contribution levied on the whole adventure: First, when the loss is due to the fault of the injured owner. Second, when the injured or sacrificed goods were carried on deck; unless such deck cargo was permitted either by the established custom of navigation or by the assent of the owners of the general cargo. The second exception rests upon the general rule of maritime law that the deck of a ship is an improper place for cargo, as its stowage there interferes with the safe navigation of the vessel.

In the absence of a special agreement to the contrary, all the imperiled property saved must contribute to make good the loss of that which was voluntarily sacrificed by the master, or common agent of all. The owner of the sacrificed interest is not reimbursed for his entire loss. On the other hand, he is bound to contribute to his own loss proportionally with his co-adventurers. In other words, the owners of the saved property contribute that percentage of its value which the value of the lost property bears to the value of all that was imperiled. As a rule, the value of a saved interest upon which it must pay contribution is the same as the value upon which it would have received contribution had it been sacrificed. In the case of the ship, this is her fair value to her owners at the time and place of adjustment; in the ease of freight, its net value at that time; in the case of cargo, the market value of the goods at the end of the voyage, less charges for freight, duties, and the like. While the ordinary place for adjusting general-average contributions is the port where the voyage was to end, the adjustment may be made elsewhere, either upon the assent of all parties interested, or by reason of necessity as in case of a disaster which prevents the completion of the voyage. When made in accordance with the law of the proper place, the adjustment is binding everywhere.

While the rules relating to general average were established many centuries before insurance was practiced, they are associated quite closely now with marine insurance. See, and consult the authorities referred to under.

A'VERELL, (1832-1900). An American soldier, famous as a cavalry leader during the Civil War. He was born in Cameron, N. Y.; graduated at West Point in 1855; and from 1857 to 1859 was engaged in frontier duty against the Indians. During the Civil War he took part, as first lieutenant in a cavalry regiment, in the first battle of Bull Run; and as colonel of volunteers in the Peninsular campaign; was raised to the rank of brigadier-general of volunteers in July, 1862; and in March, 1863, began the series of cavalry raids for which he became famous. On these raids, in 1863-64, he fought numerous battles and skirmishes, destroyed many miles of railroad, captured large quantities of supplies, and did much to disconcert the Confederates and assist Federal commanders in carrying out their plans of campaign. In March, 1865, he was brevetted brigadier-general, for 'gallant and meritorious services' during the war, and major-general for gallantry in the battle of Moorfield, Va., and in May resigned from the service. From 1866 to 1869 he was United States Consul General to British North America. He then became president of a large manufacturing company, and on August 17, 1888, was reappointed captain in