Imágenes de páginas
PDF
EPUB

legitimate way by which either can be restored to a state of pecuniary value is, by prosecuting the voyage. Consequently, on this view, the expense of reloading the cargo, and the outward

port charges, are expenses incurred for the common benefit of the ship, freight, and cargo. 21. Wages and provisions of the crew.

When there is a general average from putting into a port of refuge, ought the wages and provisions of the crew, during the ship's detention, to be allowed as general average ?

This item forms one out of a class of losses, incidental more or less directly to the putting into port, none of which are in this country, and none of which, except the item now in question, are in any country brought into general average. These are, the loss of the use of the ship during that detention, her wear and tear whilst detained, the loss of interest on the sale of the cargo from the prolongation of the voyage, and, in many cases, the loss of the season or of the market resulting to the cargo-owner from the same cause. All these are pecuniary losses; and all, with the exception perhaps of the last-named, are as directly and necessarily incurred in consequence of the detention in port as is the cost of maintaining and paying the

crew.

On principle, therefore, it would seem that either none, or all, of these incidental expenses ought to be brought into general average. The item of loss of market may be more questionable : still, in the case of a cargo destined for a particular season-e.g. fish going to a Spanish port to arrive during Lent—the loss of market resulting from detention is as much a matter of certainty as any other of the items specified.

Some are of opinion that all these losses should be excluded from general average, as being merely incidental to, and not the direct effects of, the act of putting into the port of refuge.

Others dissent from this view on practical grounds; holding as an undeniable fact, that very often, where the wages and provisions of the crew are not bonâ fide admitted, attempts, and in most cases only too successful, are made to bring these items into the account, under the denomination of labour

age, &c.

SECT. VI.—THE CONTRIBUTION. On this head there are only two questions which the committee think it necessary to consider in this report:

22. Contributing values.-Ought contribution to be made upon the values ultimately saved; or ought it, in the case of expenditure, to be made upon the values as existing at the place where the expenditure was incurred ?

Jettisons, and all sacrifices which are not replaced until the termination of the adventure, ought to be contributed for upon the ultimate values; that is, upon the values at the place at which the shipowner parts with the cargo. Ought the same rule to apply where there has been an outlay of money at a port of refuge ?

In favour of taking the values on the spot, it is argued that:

Whoever makes the outlay in question, does so as agent for all. The object of making it is to bring the property into safety, and that object has been attained. Consequently, the liability of each contributor really attaches at the moment when the payment is made. If the general average is not collected immediately, the delay is merely for practical convenience, and should not affect the results. But, if the parties are once liable, no subsequent event can take away or increase that liability. If the whole property is subsequently lost, the entire expenses ought not to be thrown on the person who may happen to have advanced the money in the first instance. If some of the property be subsequently damaged, that fact ought not to affect the proportion in which each contributes.

The value, at a port of refuge, of cargo which is destined for another place, should be, not its selling value on the spot, but its value at its port of destination, supposing no accident

on the way, but with a deduction for the expense and risk of conveying it thither.

On the other side it is argued that

As a matter of theory :—The expense at the intermediate port is incurred with the motive of enabling the ship and cargo to reach their common destination. It is for the sake of this ultimate result that the expenses are incurred. This result, therefore, should in all cases be the basis of contribution. The liability to contribute cannot, if this be so, attach immediately on the incurring of the expense, because it cannot at that period be determined who are the parties really liable, that is, in what proportion each derives a share of that ultimate benefit, for the sake of wbich the expense was incurred.

As a practical question :-The rule of basing contributions on ultimate values is the more likely to work well. It would be difficult or impracticable in any event to recover a contribution to general average exceeding the value of the property ultimately saved. When goods arrive sea-damaged, it would in some cases be difficult to determine what portion of the deterioration has occurred subsequently to the sailing from the port of refuge.

The force of the practical argument is not denied ; but it would be well if the theoretical question could be determined.

This question depends on that raised above, whether the true motive for a general average act is to obtain physical safety, or the completion of the adventure.

23. Deductions from freight.-What deductions ought to be made from the contributing value of the freight?

Theoretically, the committee think the deductions ought to be that portion of the crew's wages and of the port charges, the liability for which is contingent upon the earning of the freight. Consequently, advance wages, and port charges at the landing port, ought not to be deducted.

For practical convenience, some are in favour of deducting a uniform proportion of the freight, as representing these expenses.

On the whole, the committee do not think the practical difficulty sufficiently great to justify a departure from correct principle.

By order of the committee,

RICHARD LOWNDES, Secretary. International General Average Committee, 15, Fenchurch Buildings, Fenchurch Street, London, E.C.

October 10th, 1862.

ART. IV.-THE OFFICE OF LORD-LIEUTENANT

AND HIS DEPUTIES. SOME two years since, Lord Lyttelton, the Lord Lieu

tenant of Worcestershire, being desirous of obtaining exact information as to the history of the office, and the duties of himself and his deputies, addressed a letter of inquiry on the subject to Mr. John Harward, clerk to the Lieutenancy of the county. Mr. Harward's reply, which was delayed by the difficulty experienced in obtaining the requisite information, has been communicated by his Lordship to the Law MAGAZINE, and we have much pleasure in laying it before our readers as a minute and, we believe, trustworthy description of the origin and prerogatives of an ancient county office, passed over by Blackstone and other legal writers with a very cursory notice. We have prefixed to Mr. Harward's letter the communication addressed to him by Lord Lyttelton, as the latter contains the particular questions to which the former furnishes a reply.

LORD LYTTELTON TO MR. HARWARD.

Hagley, Stourbridge, 29th December, 1860. DEAR HARWARD,

You have not yet told me what the Deputy Lieutenants are to do at their annual meetings. It seems to me that they

will sit and stare at each other. I am very much obliged for your promised sketch of the duties of a Deputy Lieutenant; but as you are about it I will ask you to extend somewhat the scope of it and make it include the legal relations of the Lord Lieutenant with his deputies, and indeed the legal position of the Lord Lieutenant now generally. I have always thought that legal position rather singularly indefinite, and that the real importance of the office rests wholly on mere usage and convention for which there is no written authority of any kind to be found in any book or document. For its real importance is—First, in the general pre-eminence which he is allowed, and which many people believe to extend even to his taking ceremonial precedence of the High Sheriff (which it certainly does not). Second, in his virtually appointing magistrates.

This, by far the most real part of his power, in fact has, I apprehend, no legal existence or sanction whatever. If anything, he does it, or is allowed and requested to do it, as “ Custos Rotulorum,” which is a distinct office from Lord Lieutenant. The proper duty of said Custos, as defined by the title itself, is utterly insignificant. So much for the civil duties. The military functions relating to the militia, yeomanry, and volunteers are of course legal and formal, as he grants the commissions. Now as regards these functions, the natural sense of the Militia Act of 1802 would be that Lords Lieutenant were actually for the first time created by that statute.

apprehend this is certainly not the case: but I should be very glad of any researches you may be able to make which would show clearly the legal origin and history of the name and military functions of the Lord Lieutenant. So about the Deputy Lieutenants. They, I am inclined to think, are really for the first time created by the Militia Act, and their duties and position for the most part expressly specified in that Act. I believe many persons think that they have no other legal functions or obligations but this, apart from mere orders of Secretaries of State, &c., which is clearly erroneous as to the statute law; for the General Volunteer Act, 44

« AnteriorContinuar »