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countries such a loss is allowed as general average. The committee consider that it should be treated like a bottomry premium, i.e., should be apportioned over the expenses to defray which the cargo was sold.

The profit, if any, belongs to the proprietor of the goods sold, for the proceeds remain at all times his property.

B.-Sacrifices of Ship's Materials. 16. Cutting away of wreck. When a ship’s mast has been carried away, and the wreck is afterwards cut away because it endangers the ship and cargo, they are of opinion that the loss by cutting away ought not to be made good by contribution.

Some hold that this is correct on principle; on the ground that the wreck, under such circumstances, is to be regarded as the cause of danger, and, being as it were an intruder, may be got rid of without compensation.

Others, who dissent from this view of the principle, (arguing that the intrusion was involuntary and innocent, and that we should look to the state of facts at the moment of making the sacrifice, and not to any antecedent circumstances,) still concur in holding that such claims should be rejected, on account of the practical difficulty of setting a value upon articles in such a position.

17. Damage by scuttling a ship to put out a fire.— The committee are of opinion that all damage which necessarily follows such an act ought to be made good as general average.

It has been suggested that, on account of the difficulty of defining the extent of such damage, it would be well to limit the allowance to the mere repairing of the scuttle-holes, or other damage actually done in the act of cutting them. They are opposed to this limitation.

If a ship, when thus scuttled, subsequently suffers damage in a gale, this further damage ought not, they think, to be made good by contribution, although such damage might not have taken place had the ship not been on the ground. For, of that damage, the gale is the direct cause, the scuttling only the remote occasion.

All damage, however, which is the result of ordinary weather acting upon the ship at any time whilst she is unavoidably aground after being thus scuttled, should be brought into general average.

18. Damage by intentional stranding.If a ship is intentionally run ashore, to avoid capture or sinking, they think that, as a matter of pure principle, the damage caused by the running ashore ought to be allowed as general average.

When the running ashore is to avoid capture, they see no reason why this principle should not be carried out in practice. The extent of damage allowable should be determined on the principles laid down above for the case of scuttling a ship that is on fire.

When, however, the running ashore is to avoid sinking or stranding elsewhere, some are opposed to the allowance of such damage, on the following grounds :—They think that great abuses would be likely to result from such allowance. In the great majority of cases, intentional stranding means only putting the ship ashore in one place instead of another. This

measure ought to be, and usually is, only resorted to when the situation of the ship is desperate. When that is so, the ship herself is really benefited by the act, so that it is scarcely accurate to say that there is a sacrifice of anything. There must frequently be extreme difficulty of determining what portion of the damage suffered by the ship, which in most cases was already leaky, is properly attributable to the stranding

Others do not think that these reasons are sufficient to justify a departure from correct principles.

If any plan could be suggested by which the admission of such claims could be guarded against abuse in practice, whether by limiting it to certain clearly defined exceptional cases, or by any other practical limitations, the committee would gladly take such a plan into consideration.

Two such plans have been suggested, neither of which appears to them satisfactory.

One plan is that laid down in the Glasgow resolution, and re-adopted in the “ Projet de Code” brought forward by Messrs. Engels and Van Peborgh, viz.:“ That, as a general rule, in the case of the intentional)

stranding of a vessel in the course of her voyage, the loss or damage to ship, cargo, or freight, ought not to be the subject of general average ; but without prejudice to such a claim in exceptional cases upon clear

proof of special facts.” The objection to this rule is, its extreme vagueness. What is an “exceptional case," and what are “special facts," are not defined. Unless this is done, it may be feared that an “exceptional case” will in practice come to mean, a case in which the ship is not insured. But, the moment one attempts to define either of these expressions, the extreme difficulty of framing distinctions which can be worked in practice comes into view. The Glasgow resolution therefore really settles nothing.

The other plan is that laid down in the new German Code, viz.: “ When the ship has been purposely run ashore, but only

if prevention of sinking or capture was thereby intended, the damages caused by the stranding belong to general average.” But, “an average distribution is not made if the ship which has been stranded to avoid sinking is not got off, or after being got off is found incapable of

repair.” The objection to this is theoretical. Whether the act of running the ship ashore is or is not a general average act, ought to be determined upon the facts existing at the time of running her ashore, not upon subsequent contingencies. According to the German rule, if a ship is slightly damaged by running her ashore, the loss is made good; but if a more serious damage is done by the same cause, nothing is made good.

If it be determined that damage by intentional stranding shall be brought into general average, the committee suggest, as a practical limitation, that whenever a ship is run ashore because she is leaky, the entire cost of stripping, caulking, and resheathing, when this is done, shall be excluded from general average; on the assumption that, if the ship was leaky enough to justify the running ashore, these repairs would have been requisite in any case.

19. Damage by carrying a press of sail. The act of carrying a press of sail, when this is requisite, whether to avoid imminent danger or no, should, they think, be held to be part of the ordinary handling of the vessel ; and the damage thence resulting should not be made good by contribution.

SECT. V.-EXTRAORDINARY EXPENSES. 20. Port of refuge expenses.-When a ship, being in danger of total loss, owing to sea-damage, deaths or sickness of the crew, or want of provisions or water, is taken into a port of refuge, the act of bearing up for such port is a general average act; and this is so, whether the remote occasion of the ship's disabled state have been a sacrifice or an accident.

This follows from the rule as to consequences laid down in Art. 6. The putting into port does not follow from the disabled state of the ship “by direct physical necessity, independently of any subsequent act of volition.”

There is a difference of opinion as to how far the consequences of the act of bearing up for the port of refuge should be made good by contribution.

This difference results from the difference of opinion, pointed out in Art. 7, as to what is the real motive for a general average act.

Those who hold that a general average act must be an act done for “the common safety,” hold also that the act of bearing going in


for a port of refuge is only a general average act in so far as it is done with the motive of placing the ship and cargo in safety; that “ safety” means physical safety, or that state the alternative of which is a total loss; and that, when that state has been reached, the motive of that which is properly the general average act, has been completely attained; consequently that whatever is done subsequently must be done from some other motive.

Applying therefore the rule as to consequences which is laid down in Art. 6, they hold that the act of coming out of the port of refuge, and the expenses consequent on doing so, do not follow from the act of going into that port“ by direct physical necessity, independently of any subsequent act of volition.” In other words, the coming out of port is connected with the

very much in the same way as the going in was connected with the previous accident; and if we are to have the same rule for tracing the consequences of accidents, and the consequences of acts of volition, then, since the going into port is held to be no part of the accident, the coming out again should be held to be no part of the going in.

Those who take the opposite view draw a distinction between the case in which the carriage of the cargo in the original ship ceases at the port of refuge, either because the ship is incapacitated from carrying the cargo farther, or because the cargo

is unfit to be carried, and the case in which the joint adventure is continued. In the former case, they hold that the general average terminates so soon as the ship and cargo are separated from one another; but, in the latter case, that it continues until the vessel is again set upon her voyage.

The argument in support of this view is as follows:- The ship and cargo being bound together by the contract of affreightment, so that, if at any point short of the place of destination the ship is able to carry on the goods and the goods are fit to be carried, the shipowner cannot withdraw his ship nor the cargoowner his cargo, it follows that at that point neither ship nor cargo are of any pecuniary value to its owner; and the only

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