Loss must be for general safety. What articles contribute. benefit, but it is part of the adventure, and the losses must rest where the fortune of war casts them (d). The loss must be incurred for the general safety of the ship and cargo. Where the whole adventure was never in jeopardy, as where the goods lost consisted of corn which the captain was forced by a mob to sell at a low rate, although no injury was intended or done to any other part of the cargo, it was held that this was not a case for general average (e). The sacrifice must also be successful to the extent of purchasing safety for some portion of the property embarked in the adventure; at least, unless this is the result, there is no right to contribution, nor, indeed, any fund out of which it can come (f). Of course the ship and freight contribute towards general average. The mariners do not contribute for their wages (g). With respect to the goods which must contribute, the general rule has been stated to be, that all merchandize put on board for the purpose of traffic must contribute (h). The ammunition and stores of the ship do not contribute; neither in ordinary cases do the provisions on board, even although the cargo consist entirely of passengers (i). Nor does the wearing apparel, luggage, jewels, or other property of this description, belonging to the passengers and crew, which is taken on board for use and not for traffic (k). But although these do not contribute, it is apprehended that if ammunition, provisions, passengers' luggage, or other goods which are exempt, are the fact. Wilson v. Rankin, L. R., 1 (d) See the judgment in Taylor v. (e) Nesbitt v. Lushington, 4 T. R. 783; Butler v. Wildman, 3 B. & Ald. 398; and see Job v. Langton, 6 E. & B. 779, and the cases cited ante, p. 430. (f) The equity of this limitation is strongly controverted by Mr. Benecké, who says, "No one has a right to attempt the preservation of the whole at the risk of an individual." See Benecké, Princ. of Indemn. 179. Doubtless this rule may lead occasionally to hardship, but it seems to flow from the very principle upon which the claim for general average depends. See 3 Kent Com. (g) 3 Kent Com. 241. In the single case of ransom the mariners' wages are chargeable. See post, p. 487, note (d). (h) 1 Magens on Insur. 62; Brown v. Stapylton, 4 Bing. 119. Deck goods must, it seems, contribute, although they are generally not contributed for. Arnould on Ins. 936 (2nd edit.). (i) Brown v. Stapylton, ubi supra. (k) 1 Magens on Ins. 63; 3 Kent Com. 240. The rule of the Rhodian law and of the Basilican Constitutions was otherwise. See 1 Pardessus Lois sacrificed for the general good, they must be paid for as other goods by general contribution. Neither passengers, crew, nor convicts carried as passengers, can be called on to contribute for their personal safety; since, in accordance with the ancient rule of English law, there can be no estimation of the life of a man (7). of average. In adjusting the average, or calculating the values at which Adjustment the articles which are to contribute are to be taken, different systems have been adopted at different times and places. The value of the ship must be taken at the end of the voyage, and the freight which is chargeable consists of the clear earnings, after deducting the expenses of the voyage and wages of the crew (m). The rule now adopted in England is to value the goods sacrificed as well as the goods saved at their selling price, if the ship arrives at her port of destination, and the valuation is made there; but if she puts back to her lading port, and the average is adjusted there, the invoice or cost price is taken, no other being well ascertainable. If from the condition of the goods which remain on board, or other circumstances, it may be assumed that the goods jettisoned would, had they remained on board, have arrived damaged, their value is to be taken at what they would have realized as damaged goods (n). It is obvious that the value of the property sacrificed ought to be included, for the owners of it are not to be indemnified completely, but only against all but their rateable share of the general loss (0). Marit. 175, 227. And it may perhaps be inferred from the remarkable letters patent sent by King Edw. I. in 1285 to the Cinque Ports, which are cited by Pardessus (Lois Marit. vol. 4, p. 204), and which will be found in Rymer's Foedera, p. 298 (English edit.), that in England the strict rule of these ancient maritime systems was, at one time, acted upon. () 1 Pardessus Lois Marit. 175; Abbott on Shipping, 356 (5th edit.). (m) Stevens on Average, 59 (5th ed.). Where a charter-party provided that the freight was to be paid for every ton of goods that should be brought home, and an average loss was incurred in repairs on the outward voyage, it was held that the whole freight was liable to contribute, as the whole was eventually preserved to the owners by the repairs. Williams v. London As- (n) Fletcher v. Alexander, L. R., 3 (0) Abbott on Shipping, 358 (5th edit.); Smith Merc. Law, 295. As to the rule for adjusting average when it is not known whose goods are jettisoned, see Spence v. The Union Marine Insurance Company, L. R., 3 C. P. 427. By what law general aver age losses calculated. Mode of enforcing contribution. In estimating the value of masts, cables, and sails, it is usual to deduct one-third from new work for old (p). The value of the ship, if lost, should apparently be taken by deducting from her value at the port of departure a reasonable allowance for the wear and tear up to the time of the disaster (9). To entitle a shipowner to an adjustment of general average, the voyage must have been terminated. A suspension of it at a foreign port for necessary repairs is not sufficient ('). Where there is no special contract to disturb the general rule, losses by general average are to be calculated, as between the owner of the ship and the owner of the goods, according to the law at the port of discharge (s); but this rule will be often modified if the question arise on a contract made in England, for in this case the words will, at least primâ facie, be held to have been used in the sense which is ordinarily given to them. in England (t). A clause is now frequently inserted in policies providing that general average shall be paid "as per foreign statement," or to the like effect; and where this is so, the parties are bound by the foreign adjustment, whether the loss incurred was a general average loss in this country or not (u). So, where a bill of lading provided that average should be adjusted “according to British custom," the shipper of the goods was held to be bound by such custom, although the practice of British average staters was at variance with the principle of general law, including that of England (x). Contribution towards a general average might have been enforced by an action at common law (y), or by a suit in equity (); (p) See post, Chap. VII., INSURANCE, Part II. (a) Grainger v. Martin, 31 L. J., (r) Hill v. Wilson, 4 C. P. D. 329. (t) Power v. Whitmore, 4 M. & S. 141. (u) Harris v. Scaramanga, L. R., 7 C. P. 481; Hendricks v. Australasian Insurance Company, L. R., 9 C. P. 460; (x) Stewart v. The West India and Pacific Steamship Company, L. R., 8 Q. B. 88; affirmed ib. 362. See also Atwood v. Sellar, 4 Q. B. Div. 432, affirmed, 5 Q. B. Div. 286. (y) Birkley v. Presgrave, 1 East, 220; Dobson v. Wilson, 3 Camp. 480; Gould v. Oliver, 4 B. N. C. 134. 18. (2) Sheppard v. Wright, Show. P. C. but it would seem that the Court of Admiralty had usually no jurisdiction to entertain this question (a); unless, perhaps, where the whole of the proceeds of the ship, cargo, and freight was in the registry of the Court (b). age. The shipowner has a right to retain the whole of the cargo Lien for liable to contribution for general average, and can require, before general averhe parts with it, security for the due payment of the general average (c). In the case of a general ship, where there are many consignees, the usual course is for the master, before he delivers the goods, to take a bond or agreement from each consignee for the payment for what shall be found to be due for his proportion of the loss (d). If the shipowner delivers up the cargo without taking the necessary steps for procuring an adjustment of the general average and securing its payment, he may render himself liable to an action (e). Before paying a sum demanded for average, the person from whom contribution is claimed has a right to be satisfied that it is the result of a proper adjustment (ƒ). To an action by a shipowner against a shipper of goods to recover his proportion of an average loss, a plea stating that there never was any express promise to the effect mentioned in the declaration, that the ship was unseaworthy at the time of the commencement of the voyage, and that the average loss arose in consequence of such unseaworthiness, is good,-for it shows that the damage in respect of which the plaintiff claims contribution, resulted from his own negligence and misconduct (g). (a) The Constancia, 4 Notes of Cases, 677. A claim for general average cannot be the subject of a bottomry bond. The North Star, Lush. 45; 29 L. J., Adm. 73. See also The Cargo ex Galam, Br. & L. 167. (b) The Constancia, ubi supra; The Packet, 3 Mason (American) Rep. 255; The Eleonora Catharina, 4 Rob. 156. (c) Beawes, Lex Merc. 244; Lord Tenterden in Scaife v. Toben, 3 B. & (d) Abbott on Shipping, Part IV. (e) Crook v. Allen, 5 Q. B. D. 38. 59. (g) Schloss v. Heriot, 14 C. B., N. S. CHAPTER VII. INSURANCE. GENERAL NATURE OF MARINE insurance is, with some qualifications, a contract of indemnity against certain perils or sea risks to which the ship, freight, or cargo, and the interests connected therewith, may be exposed during a particular voyage, or a fixed period of time (a); whereby, in the language of an old statute (b), “upon (a) Irving v. Manning, 1 H. L. Cases, 307 and Aitcheson v. Lohre, 4 App. Cases, 761; see Kent v. Bird, 2 Cowp. 583; also the notes to Godsall v. Boldero, 2 Smith, L. C. (7th edit.), 280, and Darrell v. Tibbits, 5 Q. B. D. 560, the case of a fire policy. See also Dalby v. The India and London Life As surance Company, 15 C. B. 365, where it was held (overruling Godsall v. Boldero), that the contract contained in a life policy is not a contract of indemnity, and post, p. 457. (b) 43 Eliz. c. 12, now repealed by 26 & 27 Vict. c. 125. This act, after reciting the benefits of maritime in |