the expenses of unloading, warehousing, or reloading cargo, [297] nor port or pilotage charges, came in question. * The case of Hall v. Janson, 4 E. & B. 500, 24 L. J. Q. B. 97, decided in 1855, is, on the contrary, direct authority in favour of the proposition that the expense of reloading as well as of unloading cargo constitutes a claim to general average contribution, even though the original cause of putting into port was a particular average loss. There, in an action upon a policy of marine insurance, a count of the declaration stated that the ship had been damaged by stormy weather and forced to go into a port for repair, in order to enable her to prosecute her adventure and proceed on her voyage, and had there incurred expenses, inter alia, in and about unloading and reloading cargo which was necessarily unloaded for the repair of the ship. This count was upon demurrer held good as showing the accruing of a general average loss; and Lord CAMPBELL, Ch. J., in delivering the considered judgment of the Court of Queen's Bench upon the point, said: "Now the expenses necessarily incurred in unloading and reloading the cargo for the purpose of repairing the ship that she may be capable of proceeding on the voyage have been held to give a claim to general average contribution; for the acts which occasioned these expenses become necessary from perils insured against, and they are deliberately done for the joint benefit of those who are interested in the ship, the cargo, and the freight." And after citing The Copenhagen, 1 C. Rob. 289, Plummer v. Wildman, 3 M. & S. 482 (16 R. R. 334), and Stevens on Average, as authorities in support of the proposition, he added: "This doctrine is quite consistent with what is laid down in Power v. Whitmore, 4 M. & S. 141 (16 R. R. 416), and the other cases relied upon by Mr. Wilde." It is not necessary for us to decide in the present case whether Hall v. Janson was rightly decided, and whether the expenses in dispute in the present case would properly belong to general average, if the original cause of damage to the ship had only been a cause belonging to particular average. If, however, the Court of Queen's Bench, in the judgment just quoted, and the several text-writers, other than Benecke, from whom we have quoted, are right in the propositions affirmed by them, and the expenses would in such a

case belong to general average, it follows, à fortiori, that [* 298] they would so belong when, as is the fact here, the original cause was a voluntary sacrifice, while, on the other

No. 83. Atwood v. Sellar, 5 Q. B. D. 298, 299.

hand, even if the proposition laid down in Hall v. Janson, 4 E. & B. 500, 24 L. J. Q. B. 97, and supported by the text-writers referred to, were too wide, there would still be left a consensus of opinion to the effect that in such a case as the present, at least, the expenses in question must be treated as constituting a claim to general average contribution. In either case the practice of the average adjusters as stated in the special case would be erroneous, and it is to be gathered from a recent edition of a modern work on the law of general average by Mr. Lowndes, himself also an average adjuster of experience, 3rd ed. 107, that as regards port of refuge expenses where the bearing up into port is necessitated by a sacrifice, the principle that they should be treated as general average is apart from his own practice, which gave rise to the present action, at least beginning to be recognised in the practice of adjusters and underwriters. The two cases of Job v. Langton,

6 E. & B. 779, and Walthew v. Mavrojani, L. R. 5 Ex. 116, do not really touch the point. In each of these cases a vessel having been accidentally stranded, so that the damage thereby caused was only a particular average loss, was got off and taken into port for repair at considerable expense after the cargo had been unshipped, landed, and warehoused in safety. It was attempted unsuccessfully to make the cargo contribute to such expense as general average. There can be no doubt as to the correctness of the decisions in those cases, for the whole basis of any general average claim was gone as soon as the cargo was unshipped. The vessel was got off and put into port for repair not to avert a loss to the whole adventure, but to repair the particular average damage. Lord CAMPBELL, Ch. J., delivered the judgment of the Court in Job v. Langton (6 E. & B., at p. 791), and in the course of his judgment said "that the stranding was fortuitous, arising directly from perils of the sea, and that the expenses must therefore, in order to constitute general average, be brought within the category of extraordinary expenses incurred for the joint benefit of ship and cargo." And it is obvious, from the whole judgment, that Lord CAMPBELL not only did not consider that his observations would be applicable to the case of a voluntary sacrifice, but

also did not consider that there was any conflict between [* 299] his then decision and his former judgment in Hall v. Janson. There is nothing in the judgment in Walthew v. Mavrojani which alters the case. The result of this review of the

authorities is to confirm the opinion which, apart from authority, we entertain and have already expressed upon the question submitted to us. The practice, then, of the average adjusters, as stated in the special case, appears to us to be neither founded on true principles, nor to be in accordance with the views of the textwriters, and so far as there is case authority upon the matter, it appears to us to be opposed to legal decisions. It is a practice, too, which has not been, as the practice in Stewart v. West India and Pacific Steam Ship Company, L. R. 8 Q. B. 88, was, made a part of the contract between the parties, and therefore constitutes no impediment to our giving effect to the objections to its validity; and in deciding, as we do, that the judgment of the majority of the Court below was right and should be affirmed, it is satisfactory to us to know that the law, as laid down in the judgment of the Court below and of this Court, is placed upon a footing which more nearly assimilates it, in matters in which assimilation is desirable, to the law obtaining in other mercantile and maritime communities. Judgment affirmed.

ENGLISH NOTES.

In Svensden v. Wallace (C. A. 1883, H. L. 1884), 13 Q. B. D. 69, 10 App. Cas. 404, 53 L. J. Q. B. 385, 54 L. J. Q. B. 497, a ship on a voyage from Rangoon to Liverpool sprang a leak which made it dangerous to continue the voyage. The captain, acting for the safety of the ship and cargo, put into the port of St. Louis in the Mauritius. There was still danger of the ship sinking in harbour, and for the common safety the cargo was unloaded. The vessel was then taken into dry dock and repaired, after which she reloaded and completed her voyage. The claim by the shipowners for general average in respect of the towage, pilotage, and port dues inwards and in respect of the unloading of the cargo was conceded, and the owners of the goods admitted their liability to pay the warehouse rent of the cargo; but they refused to contribute towards the reloading of the cargo, or the pilotage, or port dues outwards. The question was whether the claim to contribution for the reloading, and for pilotage and port dues outwards, was good as a claim for general average. The Court of Appeal held it was not. As the case came before the House of Lords the question was narrowed to the point whether the claim for reloading was good; and the House decided that it was not. Broadly the decisions were based on the ground that the acts done for the common safety were at an end when the cargo was landed. The cargo was then safe, and so was the ship, except for

No. 83. - Atwood v. Sellar. - Notes.

"The broad

the sea damage, which was in that case particular average. and obvious distinction," as Lord Justice BOWEN puts it (13 Q. B. D. 95, 53 L. J. Q. B. 398), "is that in Atwood v. Sellar there was a general average sacrifice of a portion of the ship herself which rendered neces sary the repairs of the vessel in port, and the unloading, warehousing, and reloading of the cargo for that purpose." That is to say, all this was necessary to make up to the shipowner his original voluntary sacrifice.

AMERICAN NOTES.

This case was too recent for citation in Parsons on Marine Insurance, but Hall v. Janson, cited in the principal case, is cited in 2 ibid. 319. Expenses of unloading and storage of cargo are included in general average in Barker v. Phoenix Ins. Co., 8 Johnson (N. Y.), 307.

Hallett v. Wigram, cited in the principal case, is also cited by Parsons (2 Marine Insurance, p. 257), and he gives it as the settled law of this country that expenses of repair, if necessary, from the time the vessel bore away for the port of repair, come under general average. Citing Walden v. Le Roy, 2 Caines (N. Y.), 263; Thornton v. U. S. Ins. Co., 3 Fairfield (Maine), 150; Clark v. U. F. & M. Ins. Co., 7 Massachusetts, 365; Peters v. Warren Ins. Co., 3 Sumner (U. S. Circ. Ct.), 400; Barker v. Phænix Ins. Co., 8 Johnson (N. Y.), 318; and see Bedford Com. Ins. Co. v. Parker, 2 Pickering (Mass.), 1; 13 Am. Dec. 388 (a. d. 1873). In the last case the Court said: We therefore find no difficulty in deciding that when a vessel is accidentally stranded in the course of her voyage, and by labor and expense is set afloat, and completes her voyage with the cargo on board, the expense bestowed on this object, as it produces benefit to all, so it shall be a charge upon all, according to the rules of apportioning general average." The Court also said: "This case presents a question which we do not find to have been decided in this State, in New York, or in England; and what is quite as remarkable, on inquiry among underwriters of the city of Boston, it appears that it is considered a new question by them, cases of the kind either not having occurred or having been settled without dispute, upon principles of compromise." "There can be no doubt that this decision was correct." McAndrews v. Thatcher, 3 Wallace (U. S. Supr. Ct.), 374. See Nelson v. Belmont, 21 New York, 38, approving the Massachusetts case, and citing Job v. Langton, 6 El. & Bl. 779, and Moran v. Jones, 7 ibid. 523, and observing: "If the enterprise is not abandoned, and the property, although separated from the rest, is still under the control of the master of the vessel, and liable to be taken again on board for the purpose of prosecuting the voyage, the relations of the several owners are in no respect changed. The common interest remains, and whatever is done for the protection of that common interest should be done at the common expense." Bevan v. Bank of the U. S., 4 Wharton (Penn.), 301, cited by Lord CAMPBELL in Moran v. Jones, was distinguished in McAndrew v. Thatcher and Nelson v. Belmont. In the McAndrew case the Court, after observing that unloading the cargo, partly to save the goods, but also to lighten and float the vessel, did not necessarily divest the transaction of its character as an act performed

No. 84.

Gould v. Oliver, 4 Bing. N. C. 134, 135. - Rule.

for the joint benefit of the ship and cargo," continued: " Except where the disaster occurs in the port of destination, or so near it that the voyage may be regarded as ended, the master, if the goods are not perishable, has the right, and if practicable it is his duty, to get off the ship, reload the cargo, and prosecute the voyage to its termination."

GOODS laden on deck, and necessarily thrown overboard for the preservation of the ship and general cargo, do not ordinarily constitute a general average loss; but where goods are laden on deck in accordance with a general usage of trade upon voyages of the like description, the owner of the goods is, in such a case, entitled to a general average contribution.

Gould and others v. Oliver.

4 Bing. N. C. 134-143 (s. c. 5 Scott, 445; 3 Hodges, 307; 7 L. J. (N. S.) C. P. 68).

Insurance. General Average. - Timber loaded on Deck.

[134] The proprietor of goods laden on the deck of a ship, according to the custom of a particular trade, is entitled to contribution from the shipowner for a loss by jettison.

The second count of the declaration stated, that whereas the plaintiffs, before and at the time of the happening of the damages and losses in that count mentioned, were the owners and proprietors of certain merchandise and chattels, to wit, twenty-six pieces of timber, then being in and on board a certain ship or vessel of the defendant, and laden and placed on the deck thereof, to be carried and conveyed therein for freight payable to the defendant in that behalf, on a certain voyage whereon the said ship was then proceeding, to wit, from Quebec to London; and whereas, [* 135]* before and at the time of the loading of the said lastmentioned pieces of timber, in and on board the said ship or vessel, there had been, and was, a certain ancient and laudable custom used and approved of, touching and concerning the loading