a ficed for the common safety, they are to be paid for by contribution; nor do the wages of seamen contribute to the general average, except in the single instance of the ransom of the ship. They are exempted, lest the apprehension of personal* loss should restrain them from making the requisite sacrifice, and the hardships and perils they endure will entitle *them to an exemption from further distress. If part *242 of the cargo be sold for the necessities of the ship, it is in the nature of a compulsive loan for the benefit of all concerned, and bears a resemblance to the case of jettison; and if the ship be afterwards lost, the goods saved must contribute towards the loss of the goods sold, equally as if they had been thrown overboard to lighten the vessel. In such a case, a portion of the cargo, according to Lord Stowell, is abraded for the general benefit.b C Without entering minutely into the doctrine of adjusting and settling a general average, it will be sufficient to observe, that, as a general rule, the goods sacrificed, as well as the goods saved, if the vessel arrives at the port of destination, are to be valued at the clear net price they would have yielded, after deducting freight, at the port of discharge; and this rule is founded on a plain principle of equity. The person whose loss has procured the safe arrival of the ship and cargo, should be placed on equal ground with those persons whose goods had safely arrived, and that can only be by considering his goods to have also arrived. The owners of the ship contribute according to her value at the end of the voyage, and according to the net amount of the freight and earn a 1 Emerigon, 642. ↳ Hall's Emerigon on Maritime Loans, 94. The Gratitudine, 3 Rob. Adm. R. 264. • Mr. Benecke has discussed at large, and very ably, the complicated and difficult subject of general average, and the adjustment of it; and to him I must refer for a more minute detail of the learning and principles applicable to the case. Principles of Indemnity, c. 5. 7. d Tudor v. Macomber, 14 Pick. 34. The Consolato del Mare, and the usage of divers countries, made a distinction as to the rule of valuation, and they took the value at the place of departure, if the jettison took place before the middle of the voyage, and the value at the place of discharge, if afterwards. But the ordinance of the marine did not make any such distinction. 1 Emerigon, 654. If the vessel returns to the port of departure, or to some neighbouring port, the price of replacing the goods sacrificed, or the cost price, including charges, is the rule for settling the general average. Tudor v. Macomber, 14 Pick. 34. ings. The value of the vessel lost is estimated accord*243 ing *to her value at the port of departure, making a reasonable allowance for wear or tear on the voyage up to the time of the disaster; and the practice in this country, or at least it is the practice in Boston,a to ascertain the contributory value of the freight, by deducting one third of the gross amount. As to losses of the equipment of the ship, such as masts, cables and sails, it is usual to deduct one third from the price of the new articles; for, being new, they will be of greater value than the articles lost. The subject of the adjustment of a general average has been very much discussed in some of the modern cases. In Leavenworth v. Delafield, which was the case of a vessel captured and carried in for adjudication, and where the wages and provisions of the crew went into general average, a rule of adjustment somewhat peculiar to the case was adopted; for no disaster had happened to injure the vessel or cargo. In Bell v. Smith,a the vessel had been so deteriorated by the perils of the sea, as to render a sale of her abroad necessary; and the general average was calculated on the price she sold for, and not on four fifths of her original value, as in the preceding case of capture. In adjusting the difficult subject of contribution to a general average, one rule has been to take the value of the ship and cargo at the port of necessity, or place where the expense was incurred; and if there be no price of ship and cargo at such a place to be well and satisfactorily ascertained, the parties concerned may be forced to recur to the value at the port and time of departure on the voyage. The doctrine of adjustment underwent a very full discussion in *244 Strong v. The New-York Firemen's *Insurance Company, and it was there declared to be the duty of the 3 Mason's Rep. 439. Abbott on Shipping, 5th Am. edit. 607. Strong v. Fire Ins. Company, 11 Johns. Rep. 323. Simonds v. White, 2 Barnw. & Cress. 805. Gray v. Waln, 2 Serg. & Rawle, 229. 257, 258. 1 Caines' Rep. 574. d 2 Johns. Rep. 98. • As a general rule, the valuation of the cargo in the bill of lading is conclusive between the owner of the ship and the owner of the cargo, in the adjustment of a general average in the home port. Tudor v. Macomber, 14 Pick. 34. 11 Johns. Rep. 323. Lewis v. Williams, 1 Hall's N. Y. Rep. 430. Depau v. Ocean Ins. Company, 5 Cowen, 63. S. P. master, in cases proper for a general average, to cause an adjustment to be made upon his arrival at the port of destination, and that he had a lien upon the cargo to enforce the payment of the contribution. This was shown to be the maritime law of Europe. When the general average was thus fairly settled in the foreign port, according to the usage and law of the port, it was binding and conclusive as to the items, as well as the apportionment thereof, upon the various interests, though settled differently from what it would have been in the home port. The very same principle was largely examined and recognised in Simonds v. White. If, however, it was not a proper case for a general average, and was a partial loss only, then these cases do not apply, and a foreign adjustment, founded in mistake, and assuming a case for general average, when none existed, is not binding. With respect to the payment of the average, each individual is undoubtedly entitled to sue for the amount of his share when adjusted; but the English practice usually is, in the case of a general ship, where there are many consignees, for the master, before he delivers the goods, to take a bond from the different merchants for payment of their portions of the average when the same shall be adjusted. (1) *(9.) Of salvage. Salvage is the compensation allowed to persons by *245 * 2 Barnw. & Cress. 805. Dalglish v. Davidson, 5 Dowl. & Ryl. 6. Loring v. Neptune Ins. Company, 20 Pick. 411. Thornton v. United States Ins. Company, 3 Fairfield, 153. b Lenox v. United Ins. Company, 3 Johns. Cas. 178. Power v. Whitmore, 4 Maule & Selw. 141. • Abbott on Shipping, part 3. c. 8. sec. 17. The captain may make the giving of the average bond a condition of the delivery, and it is held to be a reasonable condition in support of a right founded on commercial usage. Cole v. Bartlett, 4 Miller's Louis. Rep. 130. The absolute owner of goods is liable to pay a general average; but if a mere consignee, who is not owner, receives them, and the bill of lading saying, "he paying freight and demurrage," and is silent as to general average, the consignee is not bound to pay it, though he would have been if it had been mentioned. He is liable to pay freight by reason of the condition on which he receives the goods, and which he agrees to by receiving the goods. Scaife v. Tobias, 3 Barnw. & Adolph. 523. (1) And he may retain the goods until the amount contributable is paid. Gillett v. Ellis, 11 IU. R. 579. whose assistance a ship or its cargo has been saved in whole or in part from impending danger, or recovered from actual loss, in cases of shipwreck, derelict or recapture; and it often forms a material ingredient in the discussions and adjustment which take place when a voyage has been disastrous. The equitable doctrine of salvage came from the Roman law; and it was adopted by the admiralty jurisdictions in the different countries of Europe; and whether it be a civil or war salvage, it is equally founded on the principle of rewarding individual, spontaneous and meritorious services, rendered in the protection of the lives and property of others on the sea, (1) or wrecked on the coast of the sea. It is chargeable upon the owners, who receive benefit, and who would have sustained the loss if it had not been prevented by the exertions of the salvors. The allowance of salvage depends frequently on positive statute regulations fixing the rate, and the foreign ordinances contain precise enactments on this head, though salvage is said to be a question of the jus gentium, and not the creature of local institutions, like a mariner's contract. The regulation of salvage, by the statute law of the United States, is confined to cases of recapture. (2) In the case of shipwrecks, or dere a Salvage, in policies of insurance, says Mr. Phillips, has a meaning somewhat different, and it applies to that part of the cargo which survives the peril and is saved, and is to be charged or credited, as the case may be, on the adjustment of total losses. Dig. 3. 5. • The Calypso, 2 Hagg. Adm. Rep. 217, 218. 336. The Schooner Emulous, 1 Sumner, 207. Ware, J., in The Bee, Ware's Rep. a sand-bank, in the St. Lawrence, infra corpus comitatus, the suit for salvage was held to be of common law, and not of admiralty jurisdiction. Stuart's Lower Canada Rep. 21. a 1 Rob. Adm. Rep. 278. The statute of 9 and 10 Vict. c. 99, enacts regulations on the subject of Salvage, and its unskilful enactments are exposed in the Law Magazine for February, 1847, art. 2. (1) A lien for salvage will not arise, when timber at low tide was secured to prevent it being carried away by high tide. (Nicholson v. Chapman, 2 H. Blacks. R. 254.) And it seems it will only arise for rescuing property wrecked on the ocean, or within the ebb and flow of the tide. Baker v. Hoag, 3 Barb. S. C. Rep. 203. S. C. 7 Barb. S. C. Rep. 113. Hennessey v. The Versailles, 1 Curtis R. 358. Williamson v. The Alphonso, 1 Curtis R. 376. The rights of the salvors are only in rem; they have no claim in personam against the owners. The Emblem, Davies' R. 61. (2) The Attorney-General of the United States, in an opinion given to the Secretary of State, licts at sea, and rescue, and most other cases, the law has not fixed any certain rate of salvage, and it is left to the discretion of the court of admiralty, under all the circumstances. The amount to be allowed varies according to the labour and peril incurred by the salvors, the merit of their conduct, the value of the ship and cargo, and the degree of danger from which they were rescued. The courts are liberal in the allowance of salvage in meritorious cases, as a reward for the service, and as an incentive to effort; and the allowance fluctuates between one half, one third and one fourth of the gross or net proceeds of the property saved, but one third has been the most usual rate.b In a case of derelict, Sir William Scott observed, that in no instance, except where the crown alone was concerned, and where no claim had been given for a private owner, had more *than one half of the net proceeds of the property *246 been decreed by way of salvage; and in that case he directed the salvage to be apportioned among the crews of the two vessels which were the salvors, according to the numbers of the crews. The same observations were made The Aquila, 1 Rob. Adm. Rep. 32. The Two Friends, ibid. 235. The Sarah, cited in a note to ibid. 263. The William Bedford, 3 Rob. 355. Marshall, Ch. J., 2 Cranch's Rep. 267. Bond v. The Brig Cora, 2 Wash. Cir. Rep. 90. The Schooner Emulous, 1 Sumner, 207. The Elizabeth and Jane, 1 Ware's Rep. 35. Bearse v. 340 Pigs of Copper, 1 Story's R. 314. The leading authorities in respect to salvage, in the various cases of derelict, recapture, rescue and distress, are collected and classified by Mr. Perkins, the American editor, in Abbott on Shipping, 5th Am. edit. Boston, 1846, p. 666. b If the owner has voluntarily and fairly entered into a contract for a fixed or reasonable compensation, the service rendered in a maritime case of distress is still a salvage service; but the contract is not held binding upon the owner, unless it appears that no advantage was taken, and that the rate of compensation was reasonable. The Schooner Emulous, 1 Sumner, 207. One sixth is the usual allowance of military salvage under the general law of nations, as practised in the English and American courts, where the case is not marked with any extraordinary circumstances of difficulty or danger. Opinions of the Attorneys-General, vol. i. 436. L'Esperance, 1 Dod. Rep. 46. But in a case of extraordinary salvage merit, in bringing in a derelict, the court have not only allowed a moiety for salvage, but they have charged the costs upon the other moiety. The Frances Mary, 2 Hagg. Adm. Rep. 89. The Reliance, ibid. 90, note. In the Carlotta, ibid. 361, the court (20th June, 1849, Western Law Journal, p. 826, April, 1850,) considers the rule to be universal, that salvage service rendered by the naval marine of the United States, is to be compensated in the same manner as that rendered by the private marine. |