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form system, were it possible to begin de novo, yet how will it be possible to force into harmony systems of law which probably set out from the very beginning on distinct and contradictory lines of thought? To the difficulty thus started there is, with reference to the subject on hand, a ready answer. Fortunately for the advocates of uniformity, it is the fact that the sea-laws of all European countries, and adoptively of America, have one common origin ; and all, to a considerable extent, agree in their leading principles, notwithstanding their somewhat wide divergence in the application of those principles. The common origin is that supposed fragment of Rhodian law which is incorporated into the Roman Civil Law. The agreed leading principle is, “omnium contributione sarciatur quod pro omnibus datum est.” There is then a standard of universally admitted authority to which every question in difference may be referred.
These few observations have been made in order to dispel any suspicion which might lurk in the minds of our readers, that the task which these maritime law reformers have taken in hand is Utopian. We now proceed to lay before them the draft of a Report which has been prepared in pursuance of this aim.
From the Report of the Proceedings of the National Association for the Promotion of Social Science, held in Glasgow in 1860, it appears that, at the invitation of the chairman of the General Shipowners' Society in London, of the chairman of Lloyd's, and of the chairmen of various influential bodies in London, Liverpool, Glasgow, and Hull, a body of delegates from various parts of the world met together at Glasgow. There were representatives specially appointed by the chambers of commerce, boards of trade, and underwriters' associations, of Amsterdam, Antwerp, Bremen, Copenhagen, Lisbon, and other continental seaports. Nor was the interest taken, or the attendance, confined to Europe. Boston, New Orleans, and New York, also sent their representatives. It was at that time possible for the two cities last named so far to work in unison as to adopt the same representative; the person chosen for that purpose being the very able and very learned judge of the Key West Admiralty Court, the Hon. William Marvin.*
The immediate result of this meeting was, the adoption of certain resolutions, and the appointment of a committee for the carrying out of the objects in view. Since then, the subject has not been allowed to sleep. A second general convention of English and foreign members met this summer in London. Some changes were made in the constitution of the committee, but the work, though still in the underground stage of preparation, is, we believe, steadily going on. As some sort of earnest of what may be expected, we are at liberty to lay before our readers the draft of a Report which has been adopted by the English section of the committee, and is being circulated among the foreign members, for purposes of further discussion and as a basis for eventual agreement.
SECT. I.- PRELIMINARY OBSERVATIONS.
It is highly desirable that there should be uniformity in the
* In the current number of the Home and Foreign Review there appears an article on General Average which will repay perusal. It is however disfigured by a too obviously insular tone, and by some inaccuracies, which show that the writer is not well informed on the recent history of the question. For instance, the meeting at Glasgow, and the efforts to prepare a uniform code of general average, are attributed to the Glasgow Chamber of Commerce, a body which, singularly enough, was one of the few public institutions connected with shipping interests not represented on the occasion. It is also averred that Lloyd's have held aloof from the proceedings; whereas we are bound to say that Lloyd's sent two representatives to the Glasgow Meeting, and that the committee of that important body had taken measures to be represented at the Social Science Congress in June last, (when the draft bill on General Average was discussed, but that unfortunately the delegate chosen for the purpose was prevented giving his attendance by unavoidable accident. This mistake in the article we have alluded to is so far satisfactory, inasmuch as it demonstrates that the writer, however competent in other respects, does not in any way speak the voice of Lloyd's, and is not even acquainted with the movements of its committee,—though some expressions in another part of the article might lead a hasty reader to a contrary supposition.
law and practice of general average amongst all maritime communities.
There are two distinct causes of the diversity which at present exists; one, that in some countries there is inconsistency in the carrying out of leading principles; the other, that there is difference of opinion amongst different communities as to the leading principles themselves; so that, assuming each to follow out its own principles consistently, there would still be a divergence in the results.
Of these causes, it would be comparatively easy to remedy the first; but the work aimed at by the committee would be incomplete unless both were remedied.
In the opinion of this committee, the object aimed at should be, to determine which among the leading principles propounded are the true ones, and to found a uniform system on the consistent application of those principles.
They think, therefore, that in order to prepare sufficient material for carrying out the objects of the committee, it ought to be determined, 1st, what ought to be the leading principles of general average; and, 2ndly, what is the true and self-consistent application of those principles to classes of individual
They think that the following order of arrangement should be observed :—1st, to define the leading principles of general average; and, 2ndly, to consider in detail the more important disputed points; beginning with those which bear on the question, what claims are, and what are not, admissible as general average, either first as sacrifices, or secondly as expenditures, and passing on to those which concern contributing values and the mode of settlement.
Sect. II.-LEADING PRINCIPLES. 1. General average is a contribution made on behalf of property exposed to risk in a maritime adventure, to replace certain losses or expenses which have been incurred for the common benefit.
2. In order to found a right to contribution, the act which gives rise to such loss or expense must be one that is beyond the duties undertaken by the shipowner as carrier under the contract of affreightment.
3. Under that contract, the shipowner usually undertakes to deliver the cargo at its place of destination, in the like good order as when shipped, “ the accidents of navigation,” or words to the like effect, “excepted.”
This undertaking must not be understood as meaning that the carrier is obliged to deliver the cargo unless the accidents of navigation prevent his doing so, i.e. make it physically impossible that he should do so; nor yet, on the other hand, is it to be understood as meaning that the mere happening of some “accident of navigation ” shall be treated as releasing him from all obligation.
The true view, in the opinion of this committee, is, that upon the occurring of any accident, the carrier, by himself or his servants, is still bound to do what is “reasonable” towards carrying out his contract; but he is not bound to make any step which, though in his power, it would not be reasonable to require of him.
It is reasonable to require him to use, or suffer the use of, the ship and her tackling in that kind of service for which they were constructed, and this although the doing so may expose them to unusual risk. It is not reasonable to require him to destroy or permit the destruction of any part of either ; nor yet to expose either to unusual risk in a kind of service for which they were not constructed. It is reasonable to require him to bear all ordinary expenses in the direct course of the voyage. It is not reasonable to require him to bear extraordinary expenses caused by a deviation from that course made for the common safety.
If the ship is damaged by an accident, it is reasonable that the shipowner should repair her at his own expense, and that he should do so as soon as he has the opportunity, without waiting till the end of the voyage.
Up to this point, they think that there is a common practice of the sea; in other words, such a general concurrence as may be taken as evidence of reasonableness.
They think it is reasonable, further, that when an article is by its own default the cause of the danger which renders its sacrifice necessary, such an article may be sacrificed without compensation.
4. All accidental damage suffered by the ship must be borne by the shipowner alone: all accidental damage suffered by the cargo must be borne by the cargo-owner alone.
5. Loss caused by an act which is not within the obligation of the carrier as defined above, and which is done for the common safety of the ship and cargo, must be made good as general average.
6. In order effectually to carry out Articles 4 and 5, it is necessary to have some rule which shall define to what extent the consequences, more or less remote, whether of an accident or of an act of volition, shall be ascribed to the accident or the act.
This rule should be the same for accidents as for acts of volition. That is, to whatever extent the consequences of an act of volition as above should be made good by contribution, to a corresponding extent should the consequences of an accident be excluded from contribution.
The rule which should be adopted for this purpose is, that no other consequences shall be taken into consideration except those which must follow the accident or the act by direct physical necessity, independently of any subsequent contingent event or act of volition,
It will be found upon examination that no less stringent rule will be adequate to keep the results of accident and those of acts of volition clear and disentangled from one another.
The great majority of general average acts take place as consequences of some previous accidental damage suffered by the ship—as jettisons, or putting into port, because the