cargo and freight, then all of those for whose benefit the same are used or incurred, should contribute to pay therefor. Kingston v. Girard, 4 Dall. 274; Berkley &c. v. Presgrave, 1 East 227, 8.

Upon this principle it is clear that when a vessel is stranded, and the cargo and vessel in jeopardy, expenses incurred for the recovery of both, are a subject of general average. Heyliger v. N. Y. Firemen Ins. Co. 11 Johns. 85. And wages to the crew employed in rendering services towards such recovery may be included among those expenses. Barnard &c. v. Adams &c. 10 How. 307.

In the United States there has been much discussion upon the question whether the voluntary stranding of a ship in the case of imminent peril, for the preservation of the crew, the ship and cargo, followed by a total loss of the ship, constitutes a general average for which the property saved is bound to contribution. On this question recourse has been had to those foreign works, which, in the absence of English decisions, are deemed the best evidence of the maritime law. The view

taken of them by Kent, C. J., and his associates in the supreme court of New York brought them to the conclusion that the weight of authority was against the contribution where the ship was destroyed and lost by the act of running her on shore. Bradhurst v. Col. Ins. Co. 9 Johns. 14. Other American courts with the New York decision before them have come to a different conclusion. Mr. Justice Washington pronounced the opinion that a total, as well as a partial loss of the ship, by a voluntary stranding, constituted a case of general average. Caze &c. v. Reilly, 3 Wash. C. C. R. 298. The supreme court of Pennsylvania adopted the same doctrine. Gray &c. v. Waln, 2 S. & R. 229. And it has been sanctioned by the supreme court of the United States. This court holds that a voluntary stranding of the ship, followed by a total loss of the ship constitutes, when designed for the common safety, a clear case of general average. Columbian Ins. Co. v. Ashby &c. 13 Peters 343; Barnard &c. v. Adams &c. 10 How. 302.

3. To give the right to contribution, certain leading conditions are adhered to. What they are. Particularly of the rule that by the sacrifice, the safety of other property must be attained. Rule inapplicable where expenses are incurred at an intermediate port.

Judge Story considers that the Roman law fully recognized and enforced the leading limitations and conditions to justify

a general contribution which have been ever since steadily adhered to by all maritime nations. First, that the ship and cargo should be placed in a common imminent peril; secondly, that there should be a voluntary sacrifice of property to avert that peril; and thirdly, that by that sacrifice the safety of the other property should be presently and successfully attained. 13 Peters 338.

But little more these limitations.

need be said as to the first and second of There is no doubt that a voluntary act of sacrifice and the direction of it to the common preservation are essential requisites. Sheppard &c. v. Wright &c. Show. P. C. 18. They existed in Price &c. v. Noble &c. 4 Taunt. 123; but not in Dobson &c. v. Wilson, 3 Camp. 480, nor in Whitteridge v. Norris, 6 Mass. 130, or Walker v. U. S. Ins. Co. 11 S. & R. 65.

The third limitation applies where the claim to contribution is on the ground of a sacrifice of the property of one of the parties concerned in the adventure for the benefit of the others. In such a case, for example, that of jettison, if at any subsequent period of the voyage, the remainder of the cargo be lost, there is no right to have that replaced which was jettisoned; and the same is true if the ship be lost before the articles sacrificed were replaced. Stevens on Av. 7, 8 and 22, 3.

But a claim for general contribution may also arise from expenses incurred by one party, for the general benefit, Id. 7, 8; incurred under an implied obligation of indemnity on all the parties joined in the adventure. Id. 22, 3. "The well established doctrine," Mr. Phillips observes, "is that disbursements for the common safety must be reimbursed in general average whether the ship and cargo are eventually saved or not." Phill. on Ins., 3d edi., p. 101, § 3, clause 1319. The contribution is adjusted according to the value of the respective articles saved, at the time when the expense was incurred; in like manner as if all the parties had been present and each had originally paid his own contribution. Spafford &c. v. Dodge &c. 14 Mass. 79.

4. Under what circumstances there is a right to contribution for expenses incurred at an intermediate port.

When it becomes necessary to enter an intermediate port, because the vessel, in consequence of a particular damage sustained is unfit to prosecute her voyage, as when masts, sails or other requisite apparel are lost in a storm or the vessel has sprung a dangerous leak, the particular stipulations of the charter party may be proper to be looked to, to see how the

expenses are to be borne. They may shew the intention of the parties to be that the ship was to be kept in repair and that every thing necessary to enable the ship to perform her voyage were to be provided by her owners, and therefore that expenses incurred at the intermediate port in order to put the ship in a condition to complete her voyage are to be borne by them. Jackson &c. v. Charnock, 8 T. R. 509; Abb. on Ship. 351.

Though there be no such express particular stipulation, yet if the damages to the ship arise from the ordinary occurrences of the voyage and not from some extraordinary violence or peril to which she has been exposed, the loss must be borne by the owner of the vessel, who engages by his contract with the freighter that she shall be stout, staunch and strong, and properly equipped for the voyage; and whether it be expressly stipulated or not, he is bound to keep the vessel in this condition during the voyage unless prevented by some extraordinary peril. Ross v. Ship Active, 2 Wash. C. C. R. 241.

But if it be a case of extraordinary violence or peril, and the act of entering the intermediate port be for the general safety of all, then unless there be a particular stipulation to the contrary, the expenses by reason of that act are a subject of contribution; although in one aspect the act seems for the benefit of the ship. 7 Louis. Ann. Rep. 12; Plummer &c. v. Wildman, 3 M. & S. 484.

"In truth," says Tilghman, C. J., "if we go to the bottom of the thing, almost every damage to part of a ship which can be the subject of general average is for the benefit of the ship. A mast is cut away, in consequence of which the ship is saved; this is clearly a general average, because the cargo is also saved which would otherwise have been lost. So with regard to the cargo, if part is thrown over to lighten the ship, although the remainder of the cargo is saved by it, yet the ship and freight shall contribute, because they also were saved. In the case cited from Emerigon, (408,) the ship was run on shore to avoid foundering, by which she was placed evidently in a better situation, yet it was held to be general average." Sims v. Gurney &c. 4 Binn. 526.

5. When vessel enters an intermediate port for the safety of all, what expenses are a subject of general average. Particularly as to wages and provisions of the crew during the detention.

There is no doubt that when a ship is driven by the perils of the sea into a port to refit, some of the expenses incurred

in a case of such necessity form a subject of general average; such for example, as expenses of unloading and storage of the cargo. Barker v. Ins. Co. 8 Johns. 318.

But there are others as to which the English and American decisions conflict, to wit: items for wages, board and lodging of the captain, and for wages and provisions of the crew. The general rule in England is, that "the wages and provisions of the crew during such a period, must fall upon the ship alone." Abb. on Ship. 350. Plummer &c. v. Wildman, 3 M. & S. 482. But a different rule has been established in the United States.

In view of the English rule as to wages and provisions during a state of embargo, (Robertson v. Ewer, T. R. 127,) it was held in New York, that expenses arising out of such a state are not to be defrayed by common contribution, but are subjects of particular average. Penny v. N. Y. Ins. Co. 3 Caines 158; McBride v. Mar. Ins. Co. 7 Johns. 432. in Pennsylvania, the supreme court decided on the same principle. Jones &c. v. Ins. Co. 4 Dall. 246; Kingston v. Girard, Id. 274. But in the high court of errors, its judgment was reversed. Ins. Co. v. Jones &c. 2 Binn. 547.

And

Whether wages and provisions during a detention from other causes, are a subject of general average, was considered in New York in Leavenworth v. Delafield, 1 Caines's Rep. 575; Walden v. Le Roy, 2 Caines's Rep. 264; Henshaw v. Mar. Ins. Co. Id. 276; and Barker v. Phænix Ins. Co. 8 Johns. 318. In the first case, the vessel was captured and carried into port, where she was detained four months and then liberated; in the second, she was forced into port by injuries received at sea, which rendered it necessary for the general safety to go into the nearest port to repair; in the third, the insurance was on the ship, while in the second it was on the cargo. The decision in all four cases was in favour of the claim to general average. From the decision in Walden v. Le Roy, Livingston, J. dissented in an able opinion; he was for confining a general contribution for extra wages and provisions to a case of capture, or, where a vessel goes into port to avoid an enemy, or where some other step is taken by the master, without any previous injury to the vessel alone, evidently for the benefit of the whole and with the view of escaping from an impending peril. 2 Caines's Rep. 269. He again dissented in Henshaw v. Mar. Ins.

Co. Id. 278.

In Massachusetts, while it is admitted there may be some difficulty in deciding under the circumstances of a particular case, whether a detention by any accident happening after the

commencement of a voyage is or is not a case of general average, yet when the case is established to be of that nature, and sailors' wages and provisions make a part of the expense necessarily incurred, this is considered a sufficient reason for allowing them. Padelford &c. v. Boardman, 4 Mass. 554.

Judge Story has cited several American decisions on this principle in his edition of Abbott, p. 350; and he has, upon the bench, repeatedly recognized the same principle. Potter v. Ocean Ins. Co. 3 Sumner 38. He speaks of it as "our law," as distinguished from the English law, Peters &c. v. Warren Ins. Co. 3 Id. 398; and indeed treats it as familiar law. "We all know," he says, "that when a ship is obliged to put away to a port of necessity, by losses or injuries in a storm, which constitute a general average, the wages and provisions and other expenses of the crew to and at the port of necessity, constitute a part of the general average." Id. 400. Mr. Phillips regards this as the law and the general practice in the United States. 2 Phill. on Ins. 107, 8, § 4, cl. 1328.

6. Manner of calculating the average.

The manner of calculating the average on the vessel, cargo and freight, was considered in Leavenworth v. Delafield, 1 Caines's Rep. 578; Bell &c. v. Smith, 2 Johns. Rep. 98; Byrnes v. National Ins. Co. 1 Cow. 205; Brooks v. Oriental Ins. Co. 7 Pick. 268; and Hassam v. St. Louis Perpet. Ins. Co. 7 Louis. Ann. Rep. 13. The calculation may have to be on the value of a ship totally lost, Gray &c. v. Waln, 2 S. & R. 257; or on freight actually earned, Maggrath v. Church, 1 Caines's Rep. 215; or totally lost, by the loss of the ship, Columbian Ins. Co. v. Ashby &c. 13 Peters 344; 2 S. & R. 257; and sometimes the part of the average which falls on the freight may have to be apportioned among the assurers, Leavenworth v. Delafield, 1 Caines's Rep. 578.

In a case in which the seeking the port of Norfolk to refit, and the stay there, were a deliberate and necessary departure and detention from the course of the voyage for the benefit of all concerned-and therefore a case of general averagethe damages were reckoned at 30%; this average was produced as follows:

00