Whatever freight the ship loses by jettison of the goods, or by any sacrifice, is, of course, to be contributed for.1 So if she be voluntarily stranded to save the cargo, and being lost cannot carry it on and earn her freight, this is a part of the sacrifice.2 But if the voyage is broken up in any other way, and not in consequence of a voluntary sacrifice, the freight lost is not to be contributed for.3 When freight is entitled to contribution, the value is the gross freight lost by the sacrifice.1 Nor is it more doubtful, perhaps, that the net freight only on the goods saved and carried, is called upon to contribute. But the difficulty comes when we have to determine what is this net freight. It is usually reached by deducting a certain proportion from the gross freight; as one fourth, or one third, or one half; most frequently, one third.5 Practically, the question seldom causes any embarrassment; because in most commercial ports some rule prevails, which is sanctioned by general usage there; and, as we shall presently see, an adjustment made at a proper place, according to the law of that place, is binding upon all parties and interests.

If freight were paid in advance, and was not to be repaid in

1 The Nathaniel Hooper, 3 Sumner, 542; The Ann D. Richardson, Abbott, Adm. 499; Nelson v. Belmont, 5 Duer, 310, 322.

2 In Col. Ins. Co. v. Ashby, 13 Pet. 331, 344, Mr. Justice Story said, upon this point: "It seems to us, that, as by the loss of the ship, the freight was totally lost for the voyage, it was properly included in the loss, and as a sacrifice by the ship-owner for the common benefit." See also, Gray v. Waln, 2 S. & R. 229.

a Lee v. Grinnell, 5 Duer, 400, 431; Nelson v. Belmont, 5 Duer, 310, 323; Tudor v. Macomber, 14 Pick. 34.

2 Phillips on Ins. § 1368; Mutual Safety Ins. Co. v. Cargo of the Ship George, Olcott, Adm. 157.

Freight shall contribute at one half of the gross sum agreed to be paid. Leavenworth v. Delafield, 1 Caines, 573; Heyliger v. N. Y. Firem. Ins. Co., 11 Johns. 85. In Humphreys v. Union Ins. Co., 3 Mason, 429, 439, Mr. Justice Story states that the practice in Massachusetts has been to ascertain the contributory value of freight by deducting one third of the gross amount. The foreign laws on this subject are very diverse. See Stevens & Benecke on Av., Phil. ed., 215, 255. In Mutual Safety Ins. Co. v. Cargo of the Ship George, Olcott, Adm. 157, it was held, that the freight should contribute at its gross value, deducting therefrom all necessary expenses incurred, if any, subsequent to the wreck. If there is a charter-party, and freight is to be paid for the round voyage out and home, and the principal object of the voyage is to obtain a return cargo, if a loss occurs on the outward voyage, the freight for the round voyage contributes. Shelton v. Brig Mary, U. S. D. C., Mass., 5 Law Reporter, 75.

See post, p. 332, n. 1.

any event, this was not at risk, and should not therefore be required to contribute. By the civil law, the master of the ship was required to have the contributions settled, that is, to collect from all the paying parties their contributions, and pay them to, or hold them for, the losing parties.2 The ordonnance of Louis XIV. contains the same provision; but Valin, in his commentary, denies that it is so done in practice, and his authority can hardly be doubted. And Abbott, though not saying so directly, implies that it is not the law or usage in England. We have always supposed, however, the uniform American practice to be in conformity with the provisions of the civil law. That is, the master is agent of all concerned in this matter, and he has a lien upon all the contributory goods for their contributions, and may refuse, and it is his duty to refuse to deliver these goods to their consignees, unless these contributory shares are paid for or secured by bond or otherwise.

Several American cases assume this to be the practice, and speak of it as law. In a recent case, a shipper entitled to contribution, and losing it by neglect of the master in this respect, held the owners responsible. And we should say that this case is in conformity with the uniform practice in this respect. It has been decided, and is undoubtedly the law, that if a master parts with the goods without such contributory payment, and afterwards pays over to the losing party the contribution to

1 Stevens & Benecke on Av., Phil. ed. 210, 257; 2 Phillips on Ins. § 1404.

2 Dig. 14, 2, 2. See also, Wellwood, tit. 21.

8 Liv. 3, tit. 8, Du Jet., art. 21.

4 Tom. 2, p. 211. See also, Pothier on Maritime Contracts, Cushing's ed., p. 76, n. 134.

5 See Abbott on Shipping, 507. In the year 1811 a motion was made by the owner of goods, which had been jettisoned for the safety of the vessel and cargo, for an injunction to prevent the master from delivering over the rest of the cargo to the other shippers. The motion was refused by Lord Chancellor Eldon, on the ground that though the master was not bound to part with any of the cargo, until security should be given by each shipper for his proportion of the loss, yet that every owner of a part of a cargo could not compel him to do so. Hallett v. Bousfield, 18 Ves. 187. It is also incidentally remarked in two subsequent cases that the master has a lien, but the nature or extent thereof is not pointed out. Simonds v. White, 2 B. & C. 805; Scaife v. Tobin, 3 B. & Ad. 523.

Cole v. Bartlett, 4 La. 130.

7 Gillett v. Ellis, 11 Ill. 579. See also Dupont de Nemours v. Vance, 19 How.

which he was entitled, he has an implied assumpsit against the person to whom he delivered the goods bound to the contribution. And the owner of the goods is also liable, although the consignee signed a general average bond.1 And if one shipper pays all the general average expenses incurred by reason of a peril, as capture for instance, he has a right of action against a joint shipper for his proportion.2

The English East India Company, when they charter a ship, stipulate that there shall be no claim for contribution for general average.3 We have never known an instance of such a provision entering into an American contract.

SECTION IX.

OF THE ADJUSTMENT OF A GENERAL AVERAGE LOSS AND

CONTRIBUTION.

It is commonly said that the proper place of an adjustment is the port of final destination. This is undoubtedly correct as a general rule. But we have seen that the master has the power, and indeed it is his duty not to deliver any contributory goods to their owners until their share of contribution is paid or secured to him for the benefit of the party to whom it belongs. But this implies and requires a previous adjustment; and there can hardly be an adjustment in part of any thing of which all the elements are so closely connected and interdependent. It follows, therefore, we think, that the rule should rather be as stated by Phillips, in his valuable work on insurance: "Where different parties are concerned in a general average, the jurisdiction of the

1 Eckford v. Wood, 5 Ala.,136. The court, in this case, also said, that if a party, who is bound to contribute, pays his proportion of the contribution to the master, this payment discharges him from all liability to the party entitled to contribution, though the captain should keep the money for his own use.

2 Kern v. Groning, 1 Brev. 506.

3 Hughes on Ins. 296; Stevens & Benecke on Av., Phil. ed. 252; Jackson v. Charnock, 8 T. R. 509.

* Stevens & Benecke on Av., Phil. ed. 268.

adjustment is at that port of delivery, at which their interests are to be separated." This, indeed, is the port of destination for those goods which are to be delivered there. And the rule would be the same in substance, if it were that the adjustment should be made at the first port of delivery of any of the interests concerned.

Adjustments are usually made by persons who make this their especial business. They are called, on the continent of Europe, despacheurs; and this word not unfrequently occurs in English and American books; but we have seldom heard it used orally. With us, averages are usually adjusted by insurance brokers.

It is an ancient and universal rule, founded upon obvious reasons, and indeed an obvious necessity, that an adjustment made at the place at which it should be made, and according to the law of that place, is binding upon all the interests embraced in it. So far as regards the original owners, there is scarcely any exception or qualification to this rule. Some questions have arisen where these owners are represented by insurers, which will be considered when we treat of Insurance in a subsequent volume. In our note we cite, for the convenience of the reader, the cases in which this question has been decided in either way.1

12 Phillips on Ins. § 1413.

2 In delivering the opinion in Simonds v. White, 2 B. & C. 805, Abbott, C. J., said: "The shipper of goods, tacitly, if not expressly, assents to general average, as a known maritime usage, which may, according to the events of the voyage, be either beneficial or disadvantageous to him. And by assenting to general average, he must be understood also to assent to its adjustment, and to its adjustment at the usual and proper place; and to all this it seems to us to be only an obvious consequence to add, that he must be understood to consent also to its adjustment according to the usage and law of the place at which the adjustment is to be made." See also, Daglish v. Davidson, 5 Dowl. & Ry. 6; Lewis v. Williams, 1 Hall, 430; and cases below, note 3.

3 In Chamberlain v. Reed, 13 Maine, 357, it was held, that an adjustment made on the protest and representations of the master, would not preclude the owner of goods shipped on board from showing that the loss was occasioned through the culpable negligence, or want of skill of the master, and was not, therefore, a case for a general average contribution.

4 In the following cases it has been decided that an adjustment made at a foreign port is not binding on an insurer. Power v. Whitmore, 4 M. & S. 141; Thornton v. U. S. Ins. Co., 3 Fairf. 150; Lenox v. United Ins. Co., 3 Johns. Cas. 178; Shiff v. La. State Ins. Co., 18 Mart. La. 629. And it has been held that it was so binding, in Newman v. Cazalet, Park, Ins. 566, n.; Walpole v. Ewer, Park on Ins. 565; Strong v. N.

We would add the general remark, that while the law of general average is the same whether the property lost or contributory is insured or not, much the greater number of cases in which this law has come into question are insurance cases; and we shall be obliged to consider hereafter some, at least, of the principles above stated, as they present themselves under the law of insurance. We shall here state very briefly the remedies which a party entitled to contribution has against the subjects liable to contribute. First, as to the rights of the owner of the ship. Having possession of the goods, the master has a lien by the common law, and may retain them till an adjustment is made and settled, or till the consignees sign a general average bond.1 And there is no exception to this rule in favor of the United States.2

The practice formerly prevailed to a considerable extent for the owner of the ship to bring a suit in rem against the goods bound to contribute where they had been delivered up by the master. But it was held, by the Supreme Court of the United States, that the lien of the master or owners, being but a common law lien, could not be enforced in admiralty. We think, however, this case was wrongly decided, for there seems to be no subject over which the admiralty should more properly take jurisdiction, than general average. The reasons on which the decision of Cutler v. Rae rests, have been much shaken by recent decisions, and further adjudication is necessary to settle

Y. Firem. Ins. Co., 11 Johns. 323; Depau v. Ocean Ins. Co., 5 Cow. 63; Loring v. Neptune Ins. Co., 20 Pick. 411. The question was discussed by Mr. Justice Story, with his usual learning and ability, in the case of Peters v. Warren Ins. Co., 1 Story, 463, and a strong opinion expressed in favor of the latter view of the case, though he expressly stated that he did not wish to be understood as deciding the point.

1 Strong v. N. Y. Firem. Ins. Co., 11 Johns. 323; Sherwood v. Ruggles, 2 Sandf. 55; Thornton v. U. S. Ins. Co., 3 Fairf. 150; Chamberlain v. Reed, 13 Maine, 357. 2 United States v. Wilder, 3 Sumner, 308.

3 Mutual Safety Ins. Co. v. Cargo of the Brig George, Olcott, Adm. 89.

4 Cutler v. Rae, 7 How. 729.

5 In Dike v. Propeller St. Joseph, 6 McLean, C. C. 573, the court said: "The decision, however, in the case of Cutler v. Rae, was by a divided court, and it has not been satisfactory to the profession, nor was it a decision in accordance with the prior decisions of the Supreme Court. I should conform to it in a case that could not be distinguished from its principles." And in Dupont de Nemours v. Vance, 19 How. 162, Mr. Justice Curtis, speaking of Cutler v. Rae, said: “The court decided, that, though the master, as the agent of the owner of the vessel in that case, had, by the