composition to a pirate to save the residue, but that it is otherwise if a pirate takes part by violence. Damage done to the cargo of a ship in port by pumping in water to extinguish a fire, whereby the ship and residue of the cargo were preserved, gives the owner of the cargo so damaged a right to contribution (k). There appears to be no doubt that damage voluntarily and Damage done to ship to necessarily done to the ship in order to facilitate the jettison, is facilitate a general average loss. jettison. stranding. Any loss necessarily and directly resulting from a voluntary Voluntary stranding of the vessel upon a rock or strand in order to avoid wreck or capture, must also, if the ship is recovered so as to perform the voyage, be made good by a general contribution (1). unloading, Where a ship was in the course of her voyage run foul of by Expenses of another ship, owing to the violence of the wind and weather, port charges, and was damaged, and the master was in consequence obliged &c. to cut away part of the rigging, and to return to port to repair the injuries sustained by the accident and by the cutting away, and it appeared that the ship could not have prosecuted her voyage, or have kept the sea in safety without returning and repairing, the Court held that the expenses of repairs, so far as they were absolutely necessary to enable the ship with her cargo to prosecute the voyage (excluding from this calculation any benefit to the ship beyond the mere removal of her incapacity to proceed), might properly be considered as a general average; and that the expenses of unloading might also be included, if this was necessary in order to effect the repairs. It was considered, however, that the expenses of the master, during the (k) Stewart v. West India and Pacific Steamship Company, L. R., 8 O. P. 88. This right has been held to exist against the shipowner, although the bill of lading under which the goods were shipped contained the exception of "fire on board." Schmidt v. Royal Mail Steamship Company, 45 L. J., Q. B. D. 646. (1) Benecké, Princ. of Indemn. 215; Arnould on Insur. 915 (2nd edit.). It will be observed, from the cases cited above, that the claim to contribution may extend to collateral damage necessarily connected with the main in jury which forms the subject of general unloading, repairing, and reloading, and the cost of crimpage to replace deserters, during the repairs, must be borne by the shipowner (m). Where a ship was stranded by perils of the sea, and in order to get her off the cargo was discharged, and forwarded in another vessel, and subsequently expenses were incurred in getting the ship off and taking her into a port for repairs, it was held that the expenses incurred from the misadventure until the cargo was discharged constituted a general average, but that the subsequent expenses were not chargeable to general average, but to the ship alone (n). In this case it did not appear, however, that it was in any way for the advantage of the owner of the cargo that the ship should be got off and repaired, and the view taken of the facts by the Court was, that the goods had been in the first instance saved by a distinct and completed operation, and that afterwards a new operation began for the benefit of the shipowner. But in a later case, where the ship being stranded the goods were rescued and placed in a lighter, and remained under the control of the master until the ship was afterwards repaired and enabled to take in the goods again and prosecute her voyage, it was held that this was to be deemed one continuous transaction, and that the goods were liable to contribute to the expenses of the repairs to the ship, although they happened to be saved in the earliest part of the operation (o). (m) Plummer v. Wildman, 3 M. & S. 482; and see as to the expenses of repairs and unloading in these cases, Da Costa v. Newnham, 2 T. R. 413; Hall v. Janson, 4 E. & B. 500; Power v. Whitmore, 4 M. & S. 141. Mr. Chancellor Kent (3 Com. 236), states that, according to the English law, where a ship is obliged by any sea peril to put into port for the general safety in order to refit, the wages and provisions of the crew are not, but that the expenses of unloading and warehousing, &c. are, a general average. There appears, however, to be no principle for this distinction; and it is to be observed that in Plummer v. Wildman the return to port was rendered necessary, not only by the damage sustained by the collision, but by the necessary and voluntary cutting away of part of the rigging. See post, p. 431, as to the rule, when such expenses are incurred owing to an injury which is itself the subject of general average. The American Courts hold that where a ship is obliged to return to refit, the necessary expenses of unloading and reloading, and the wages and provisions of the crew, are a general average. See 3 Kent Com. 236, note (e); also Job v. Langton, 6 E. & B. 779; and Moran v. Jones, 7 E. & B. 523. The American authorities treat also expenses incurred in getting off a stranded vessel after the cargo has been removed to a place of safety as general average. In England this is otherwise. Walthew v. Mavrojani, 5 Ex. 116. (n) Job v. Langton, 6 E. & B. 779; Oppenheim v. Fry, 5 B. & S. 348. (0) Moran v. Jones, ubi supra. And see Walthew v. Mavrojani, L. R., 5 Ex. 116, where this and the preceding case are discussed and distinguished. See also Phillips on Ins. s. 1312; and Parsons on Shipping, vol. i. 390 (edit. 1869). Where a ship puts into a port of distress owing to an injury which is in itself the subject of general average, the expenses of repairs and of unloading, for the purpose of the repairs and reloading, and the seamen's wages, and cost of provisions during the detention, and the port charges and other charges on the vessel leaving port, form matter of general average (p). And it seems that where a ship is driven by sea-perils into a port to refit, owing to injuries which do not in themselves constitute a general average loss, that the expenses necessarily incurred in unloading and reloading the cargo, for the purpose of repairing the ship that she may be made capable of proceeding on the voyage, give a claim to general average contribution, for the acts which occasioned these expenses are deliberately done for the joint benefit of those who are interested in the ship, the cargo, and the freight (9). In cases of detention by embargo, the wages and provisions In cases of of the crew are not a general average (r); nor are the expenses embargo, &c. occasioned by ordinary quarantine, or by waiting for convoy. The expense of salvage appears, however, to be one that ought to be made good by general contribution (s). The law of general average is well illustrated by a recent case, in which a clipper with an auxiliary screw, whilst on her homeward voyage, was so damaged as to be obliged to put into Rio, having nearly exhausted her coals. The repairs necessary to restore her sailing powers would have cost much more than in England, and would have occupied several months, and the cargo would have to be unshipped and warehoused. The captain therefore had only temporary repairs done, sufficient to enable him to complete his voyage under steam alone, and in order to do this he had to purchase coals at Rio and again at Fayal. (p) Atwood v. Sellar, 4 Q. B. D. 342; 5 Q. B. D. 286. (a) See the judgment in Hall v. Janson, 4 E. & B. 500; The Copenhagen Mening, 1 Rob. 289; and Stevens on Average, 24 (2nd edit.). It has, however, for many years, as was proved in Atwood v. Sellar, been the practice of English average adjusters in such cases to treat the expense of warehousing the cargo as particular average on the cargo, and the expense of reshipment, pilotage and other expenses of leaving port as particular average on the freight, and Manisty, J., thought that this practice had be come law and bound the Court. Where (r) See the judgment of Buller, J., (s) See Arnould on Ins. 931 (2nd edit.); Kemp v. Halliday, 6 B. & S. 723; Schuster v. Fletcher, Q. B. D. 418. The shipowners sought to charge the cost of the coals against the shippers of cargo, either on the principle that the expenditure was a substitution beneficial to all parties for a greater expenditure which the captain had a right to incur by repairing at Rio, and ought to be apportioned in the same way as the greater expenditure would have been, or as an extraordinary expenditure for the general advantage of all interests concerned. It was held, assuming the repairing at Rio would have been justifiable, and any of the incidental expenses chargeable against the shippers as a general average, that there was no legal principle on which expenses incurred by one course could be apportioned according to what might have been the facts if a different course had been adopted; that the shipowners, by the contract of affreightment on such a ship, were bound to give the services of the screw and to make all the necessary disbursements for fuel, and although the circumstances caused these to be heavy, they did not render them an extraordinary expenditure within the rule as to general average (t). Where part of the cargo is necessarily sold by the master in order to raise money for defraying expenses of repairing injuries which are themselves matter of general average, the loss must be made good by general contribution (u). It is otherwise where the loss or damage which renders the sale necessary is only a particular average. Thus, where the master was arrested at Copenhagen by the agent of the ship for a debt due to him personally, for money advanced to pay the Sound dues and the expenses of repairing sea damage suffered by the ship, and the master, in order to obtain his liberation and proceed on the voyage, sold part of the cargo, this was considered to be a loss which ought to fall on the shipowner only (x). And it is clear that no claim for general average can arise where the goods are sold merely to defray the expenses of repairs made necessary by ordinary sea perils against which the shipowner is bound by the contract of affreightment to provide (y). (t) Wilson and another v. Bank of (u) See The Gratitudine, 3 Rob. 255, 431; Hallett v. Wigram, 9 C. B. 580; Duncan v. Benson, 1 Exch. 537; 3 Exch. 644; Chapman v. Benson, 6 M. & G. 792; S. C. in error, 2 H. of L. Cases, 696; 8 C. B. 950; see also Wilson v. Bank of Victoria, ubi supra. The question whether any particular expenses of repairs done to a ship in a port of distress form a subject of general average, appears to depend upon the same principles. Where the injury itself is a general average loss, and in this case only, under ordinary circumstances, the repairs stand upon the same footing (). According to most of the foreign systems of law, goods laden Deck cargoes. on deck are excluded from the benefit of general average when they are lost by jettison; but by the law of this country (so far as it can be considered settled by actual decisions) there is no inflexible rule that in all cases, and under all circumstances, there shall be no contribution for the jettison of deck loads; on the contrary, if there is no statutory prohibition of this practice relating to the particular voyage (a), and there exist a custom in the trade to load the goods in this way, a claim for general average, in respect of their loss, may be sustained (b). Where the master has loaded the goods on deck with the consent of the merchant, a claim for contribution exists as against the shipowner; since there is no remedy in this case against the shipowner for a wrongful loading of the goods on deck, and if there were, as between these parties, no right to contribution, the owner of the goods would bear the whole of a loss which was incurred for the general benefit (c). By the law of this country, the expenditure of ammunition in Damage resisting capture, the damage done to the ship in the action, and incurred in resisting the expenses of curing the wounded sailors, are losses which do capture. not form the subject of general average. No particular part of the property is voluntarily sacrificed, in such a case, for the protection of the rest. The resistance is, it is true, for the general (2) Arnould on Ins. 922 (2nd edit.). (a) See as to deck cargo, ante, p. 37. (b) See Da Costa v. Edmunds, 4 Camp. 142; 2 Chit. Rep. 227; Gould v. Oliver, 4 B. N. C. 134; Milward v. Hibbert, 8 Q. B. 120; Harley v. Milward, 1 Jones & Carey (Irish), 224. In Johnson v. Chapman, 19 C. B., N. S. 563, the shipper of a deck cargo of timber which, having broken adrift and impeded the navigation and safety of the ship, was thrown overboard, was held entitled to average as against the ship M.P. owner. See also a learned note on (c) Gould v. Oliver, ubi supra. Where |