ship has sprung a leak; and they are done under a species of moral necessity resulting from that accident. If, notwithstanding this, it is right that there should be a contribution, ie., that the morally necessary consequences of accident should not be connected with the accident, the same rule should be applied to the morally necessary consequences of an act of volition.

The maxim, causa proxima non remota spectatur, is applicable, therefore, to the international law of general average. 7. There is a difference of opinion on the following ques

tion:

In order to constitute a general average act, should the motive for it be "the common safety," in the sense of safety from the danger of total loss, or "the common benefit"-in other words, the completion of the common adventure?

Supposing, for example, that at a given point in the voyage some portion of the property is in physical safety, but that it is necessary to make some sacrifice, or incur some extraordinary expense, in order that the ship and cargo may reach their destination in company, ought the portion which was then so far in safety to contribute as for a general average? The existing English practice is based on the opinion that it ought not. Some consider this opinion erroneous.

The argument in support of the English practice is :— Contribution should be in proportion to benefit intended or derived. If the alternative of the act be a total loss, that benefit is represented by the full value of the property: if otherwise, it is represented by the difference between the position of the property in case the act be performed, and its position in case the act were not performed. In the case supposed, some portion of the property is already in safety, and consequently is either not benefited at all by the act, or at least not benefited (as the remainder is) to the full extent of its value. Consequently, such portion should not contribute, as to a general average, upon its entire value.

It has been argued on the other side:

VOL. XIV.NO. XXVII.

D

By the contract of affreightment, so long as it remains in force, the ship and cargo are so linked together during the voyage that neither of them can be said to possess any pecuniary value at any middle point in it; for the shipowner cannot withdraw his ship, nor the cargo-owner his cargo, so as to derive any pecuniary benefit from it, until the termination of the adventure. Hence an act, which has for its object the completion of the voyage, may be said to redeem both ship and cargo from a state of pecuniary worthlessness, and so to benefit both, together with the freight, to the full extent of their respective values.

To this it is answered:-The question, whether benefit has been derived from an act, can only be determined by supposing an alternative, and considering how the case would have stood had the act not been done. Here, had the act not been done, the contract, quoad the original ship, would have been at an end; for it would then have been impossible that the goods should have been carried in the original ship to their destination. In that case, some portion of the cargo would exist in physical safety, set free from the contract, and having some pecuniary value.

It is replied:-That is not so; but, if the act in question be not done, the contract still subsists, and all parties are therefore at a dead lock, for neither shipowner nor cargo-owner would have a right to touch his property. Hence, an act which removes this state of things is an act which benefits the whole property to the entire extent of its value.

It will be found that this controversy affects several practical questions.

SECT. III.-DEFINITIONS.

In conformity with the principles laid down in Sect. II. the definitions suggested are as follows:

8. A general average act is an act which is outside the carrier's duty to the cargo under the contract of affreightment; which, in consequence of extraordinary danger, cannot

judiciously be left undone; by which is contemplated extraordinary expenditure, or the sacrifice of such property as is not through its own default itself the cause of danger; and for which act the motive is

(On one view) the common safety of the ship and property on board.

(On the other) the arrival of the ship and cargo in company at the port of destination, or at the nearest port thereto which it may subsequently be found practicable for them to reach together.

9. A general average is a contribution which is to be made (the property sacrificed, if any, taking its share rateably with the part preserved) to replace whatever loss or expense is the direct and necessary effect of a general average act.

SECT. IV. SACRIFICES.

Following the order of arrangement laid down in Sect. I. the committee passes on to the disputed points bearing on the question-what losses are, and what are not, admissible as general average. These may be divided into two classesSacrifices, and Expenditures.

A.-Sacrifices of Cargo.

10. Cargo sacrificed on account of its vice propre.-Cargo which is jettisoned or otherwise sacrificed because from its own putrefaction, or from sea damage suffered by it, it has become dangerous or unfit to be carried, as heated hemp jettisoned for fear of ignition, ought not to be made good by contribution.

For, the article is by its own default itself the cause of the danger.

11. Jettison of deck cargo.-In trades where there is a custom to carry goods on deck, as in the timber trade, and with live stock in certain coasting voyages, is the jettison of such articles allowable as general average?

Some contend that cargo which is thus carried in its customary place, cannot be said to be in an improper place, and consequently ought to be made good if sacrificed. Others think that on account of the difficulty of determining the questions as to custom which might arise, deck-load jettison should be excluded in all cases.

Cargo carried in a poop or deckhouse which is built in with the frame of the ship, and cargo carried in the cabin, where the doing so is customary, should be treated as underdeck cargo. Cargo in temporary deckhouses, or houses other than the above, should be treated as on deck.

12. Damage to cargo in effecting jettison.-On principle, all damage which the cargo necessarily suffers as the effect of making a jettison for the common safety, ought to be treated as a part of the loss by jettison.

Hence, if a sea is shipped while the hatches are opened to effect a jettison, and the water going down the opening damages other goods, all damage which can be clearly traced to this cause is on principle allowable as general average.

As a rule of practical convenience, however, it would perhaps be well to exclude such claims, on account of the difficulty of proving the real cause of damage, and the abuses to which that difficulty may give rise.

Damage done to cargo from the derangement of stowage consequent on a jettison, as by chafing and breakage of flour barrels loosened by removing portions of the tiers, is not allowable as general average. This is on the ground that it is an uncertain and remote consequence of the jettison.

13. Damage to cargo by a forced discharge.-If cargo is discharged into lighters to float a stranded ship, or for a similar reason is thrown out upon a beach, and is partly lost or damaged, either in this process, or whilst being carried ashore in the lighters, such loss or damage, being the effect of an exposure to extraordinary risk for the common safety, is allowable as general average.

Ought the same rule to be applied, when goods are damaged

by being discharged at a port of refuge in the manner customary at that port?

With most kinds of goods, there seems to be no reason why such a discharge should necessarily cause damage; otherwise, all cargoes destined for the port in question would necessarily arrive damaged, which it would be absurd to suppose. If, then, damage takes place, it must be through some accident or carelessness.

There are, however, some kinds of goods which require a peculiar mode of handling or treatment in discharging, such as can only be given at ports where the importation of such goods is customary. This is the case, for example, with salted hides. The discharge of such goods at a port where the proper treatment is not practised, necessarily involves the damaging of them.

This, however, is an exceptional case, and, in our opinion, it is expedient, though certainly a hardship on the owner of it, that this special risk, arising from a peculiar tenderness of the article itself, should fall on the proprietor of it, and not be brought into contribution.

On the whole, therefore, this committee recommend for adoption the Glasgow resolution of this head, viz. :—

"That the damage done to cargo, and the loss of it and of the

freight in it, resulting from discharging it at a port on refuge in the way usual at that port with ships not in distress, ought not to be allowed in general average.' 14. Damage to cargo in extinguishing a fire.-On this head they concur with the Glasgow resolution, viz. :— "That the damage done to ship, cargo, and freight in

extinguishing a fire, ought to be allowed in general average."

In estimating the damage done to cargo by water poured down to put out a fire, it would be proper to exclude such packages as were actually ignited when the water reached them.

15. Loss on cargo by being sold to raise funds.-In some