This principle is found in Bedford Com. Ins. Co. v. Parker, 2 Pickering (Mass.), 1; 13 Am. Dec. 388 (approved in McAndrews v. Thatcher, 3 Wallace (U. S. Supr. Ct.), 367; Barnard v. Adams, 10 Howard (U. S. Supr. Ct.), 270 (wages of crew allowed after the ship was stranded and while they were occupied in saving the cargo); Bevan v. Bank of U. S., 4 Wharton (Penn.), 301; 33 Am. Dec. 64 (distinguished in McAndrews v. Thatcher, supra); Gray v. Waln, 2 Sergeant & Rawle (Penn.), 229; 7 Am. Dec. 642; Heyliger v. N. Y. F. Ins. Co., 11 Johnson (N. Y.), 85; Barker v. Balt. & Ohio R. Co., 22 Ohio State, 45; 10 Am. Rep. 726; Leavenworth v. Delafield, 1 Caines (N. Y.), 573; 2 Am. Dec. 201. In the last case it was held that wages and provisions necessary for the support of the crew during the detention of the vessel captured and carried in for adjudication, are proper subjects of general average. The editor, in a note, 2 Am. Dec. 207, says this doctrine is "very much questioned." In Gray v. Waln, supra, the Court said: "The law of average is founded on policy and on equity. On policy, because there are men who would risk the loss of life and fortune rather than sacrifice their property without compensation. On equity, because nothing can be more reasonable than that the property saved should contribute to make good the loss which was the cause of safety. It is to be understood that this loss was incurred voluntarily, in time of imminent danger, with a view to the general good, because without these concurring circumstances there would be neither policy nor equity in contribution. It is to be understood, too, that the object in view, that is, the preservation of ship and cargo, has been in whole or in part effected. If goods are thrown overboard to lighten the ship, notwithstanding which she is wrecked, neither the ship nor the goods which happen to be saved shall contribute, because they were not saved by means of the jettison. But if the jettison preserves the ship and cargo from the impending danger, and afterwards the ship is wrecked in consequence of a new peril, what is saved of the cargo shall contribute, because it would not have been saved but for the jettiIt appears to me that some confusion has taken place in the law respecting average, from not attending to the distinction between cases of jettison and running the ship on shore. In case of a jettison, the object in view is not attained unless the ship is saved; the goods which chance to be saved are not saved by means of the jettison. The reason for contribution therefore fails. But where the ship is run on shore, the object in view, so far as concerns the cargo, may be completely obtained, though the ship be totally lost; because the goods are saved by means of the loss of the ship."

son.

In Barker v. Balt. & O. R. Co., supra, the question was seamen's wages and subsistence in respect to general average, and it was held that they were a proper claim, overruling earlier Ohio cases, and observing: "These early decisions followed the rule then recognized, and probably still adhered to by the English Courts. But they are, as intimated by the learned Judge who announced the opinion of the Superior Court, at variance with the settled law on the subject in this country, and should be modified to harmonize therewith, and with the modern maritime usages of Western navigators and underwriters.

No. 86.

Simonds v. White, 2 Barn. & Cress. 805. Rule.

"We cannot perceive why, on principle, expenses for seamen's wages and subsistence, incurred pending an extraordinary peril, should not be treated as extraordinary sacrifices. We therefore think the American doctrine, as laid down by elementary writers, and generally recognized in the adjudicated cases, maintains the better rule. Abbott on Shipping, 601; Barnard et al. v. Adams et al., 10 How. (U. S.) 307; The Star of Hope, 9 Wall. (id.) 236. In the case last cited, the Court say: Whatever the injury to the ship may be, and whether it arose from the act of the master in voluntarily sacrificing part of it, or in voluntarily stranding the vessel, the wages and provisions of the master, officers, and crew, from the time of putting away for the port of succor, and every expense necessarily incurred during the detention, for the benefit of all concerned, are general average.""

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In the Heylinger case, cited above, a vessel was wrecked and lost, but the cargo was saved by lighters, and it was held that the expense of this salvage was proper subject of general average. The Court said: "The general contribution is founded on the most equitable principles. The expenses were incurred for the common benefit."

GENERAL average claimed by the owner of the ship against cargo is (primâ facie) to be adjusted at the port of discharge according to the law of that place.

[805]

Simonds and Loder v. White.

2 Barn. & Cress. 805-813 (26 R. R. 560).

General Average. - Adjustment at Port of Discharge.

A loss by general average is to be calculated between owner of ship and the owner of goods according to the law of the port of discharge.

Assumpsit for £106 3s. 6d., as money paid by the plaintiffs to the use of the defendant. At the trial before ABBOTT, Ch. J., at the London sittings after Hilary Term, 1823, a verdict was found for the plaintiffs subject to the opinion of the Court upon the following case:

The plaintiffs are British subjects, having a mercantile establishment in London where Simonds resides, and at St. Petersburgh where Loder resides, under the permission of the Russian government. The defendant is also a British subject, and the owner of

No. 86. Simonds v. White, 2 Barn, & Cress. 805–807.

the British ship Mamhull, which was chartered at Gibraltar on the 15th of March, 1820, by W. Cozens & Co., who [* 806] are British subjects residing at Gibraltar, for a voyage

from Gibraltar to touch at the Isle of Wight for orders, and then to proceed immediately, if so directed, to St. Petersburgh. The vessel sailed on the voyage from Gibraltar on the 20th of March, 1820, with a cargo on board, for which bills of lading were there signed in the following form deliverable at St. Petersburgh: Shipped in good order and well conditioned by W. Cozens and Co., in and upon the good ship called the Mamhull, now riding at anchor in Gibraltar bay, and bound for St. Petersburgh (enumeration of the goods and their marks, weights, &c., here follow), being marked and numbered as in the margin, which are to be delivered in like good order and well conditioned at the aforesaid port of St. Petersburgh (the dangers of the sea only excepted), unto or assigns (afterwards filled up unto M. W. Simonds and Co. (the plaintiffs), or their assigns), he or they paying freight for the said goods as per charter-party, with tonnage and average accustomed."

On the arrival of the vessel at the Isle of Wight, the plaintiffs purchased the cargo from the agents of Cozens & Co., and the ship afterwards proceeded on to St. Petersburgh. In the course

of the voyage she struck on a reef of rocks off the island of Lessoe, when the long-boat was got out, and the small bower cable and anchor were carried out to endeavour to get her off; but the tide being strong, it drifted the vessel on to the cable, which was thereby rendered useless and unfit for service. Assistance was procured, and the vessel got off; she put into Elsineur, where the master purchased a new cable, and the vessel finally completed the voyage and delivered the cargo in safety under the

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aforesaid bill of lading. When the vessel arrived at [* 807] St. Petersburgh, a statement of general average on the voyage, according to the Russian laws upon that subject, was made up and settled by an officer appointed for that purpose by the Russian government, called the Dispacheur. In that statement was included as a charge upon the cargo for general average the sum of £106 3s. 6d. for the cost of the new cable beyond the old one, surveying the old cable, weighing and getting the new cable on board, the duty payable on the foreign cable when brought into England, and the new cable's proportion of the above charges,

which are admitted to be general average according to the laws of Russia; and the plaintiffs were called upon to contribute to general average so calculated, and by the laws of Russia they were obliged to pay the sum demanded in order to get possession of the cargo. The cargo of the Mamhull was insured by a policy effected in London, the underwriters upon which refused to allow the cable and the charges connected with it as part of the loss. On the 21st of February, 1821, the plaintiff, Simonds, wrote a letter to the defendant demanding payment of the said sum of £106 3s. 6d. The case was argued in the last term by

F. Pollock for the plaintiff. The general average ought to have been calculated according to the laws of England and not according to the laws of Russia, and the defendant having claimed and received the money on grounds not tenable, and the plaintiffs having been compelled to pay it in order to obtain their goods, the sum so paid may be recovered back in an action for money had and received. The question is to be decided on the same [808] principle as if the defendant was now suing for average

in an English Court of justice. All the parties to the contract were British subjects, and the ship was a British ship. In Power v. Whitmore, 4 M. & S. 141 (16 R. R. 416), it was decided that the insurer of goods shipped to a foreign country was not bound to indemnify the assured, a subject of that country, against general average, which by a decree of a Court there he was obliged to pay, but which, by the law of this country, he was not liable to pay; and Lord ELLENBOROUGH in that case says, that " the contract must be governed in point of construction by the law of England, unless the parties have contracted on the footing of some other known general usage among merchants relative to the same subject." The accident in this case happened before the vessel reached the Russian dominions, and it ought to be considered with reference to this question in the same light as if it had happened in the river Thames, and then it is quite clear that the average must have been calculated according to the law of this country. In this case it does not appear that when the vessel left Gibraltar, it was settled that she was to go to St. Petersburgh as the place of her final destination; she was only to go there if so directed.

Whateley, contra. The decision in Power v. Whitmore does not govern the present case. The question there arose upon a policy of insurance, an instrument in general and familiar use, and

of known meaning in England, and upon a contract which could only be enforced in this country. Here the question arises upon a bill of lading, and the payment of average, if any should

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become due, is implied by the general law merchant. [* 809] In that case, too, the question arose between the underwriter and the owner of the goods; in the present, it arises between the owner of the ship and the consignee of the goods, and the rights and liabilities of the one are very different from the rights and liabilities of the other. In that case it was not stated that the average was settled according to the law of the place where the adjustment was made; in the present case it is so stated. Now it is quite clear that by the general law and custom of merchants, as appears by the most celebrated works on marine law of this and other countries, the master of a ship has a lien upon the goods at the port of discharge for any average which may become due during the voyage. Consulat de la Mer, Paris edition, 1808, section 225; Complete Body of Sea Laws, section 33, article 31; Wellwood's Abridgement of Sea Laws, edition 1613, tit. 21, page 47; Bynkershoek Questiones Juris Privati, liber 4, c. 24; Malyne's Lex Mercatoria, 3rd edition, page 113; Beawes's Lex Mercatoria, edition 1813, tit. Average, p. 245; Ordinance of Lewis the Fourteenth, book 3, tit. 8, Du Jet., article 21; Abbott on Shipping, 257. The parties, therefore, in this case must be supposed to have contracted upon this understanding. And if the master has a lien at the port of discharge, it seems to follow as a necessary consequence that the average must be calculated and adjusted according to the law which prevails there, for it would be absurd to suppose that he can have a lien at the port of discharge for average which is to be calculated according to the law of another country. In this case the bill of lading. mentions that the vessel is bound to St. Petersburgh, and it was therefore known to the parties to the contract, that [* 810] if an average loss occurred upon the voyage, it must be adjusted at that place.

Cur. adv. vult.

ABBOTT, Ch. J., now delivered the judgment of the Court. The question in this case is, whether the plaintiffs, the proprietors of certain goods carried on board the defendant's ship from Gibraltar to St. Petersburgh, and who were compelled at St. Petersburgh to pay to the defendant, in order to obtain possession of their goods, a sum