the master for the breach of contract, is, in the eye of the law, and for all the purposes of this inquiry, the same as an indemnity.

Why then should the shipper be called upon to pay for services, which, by the terms of the original contract, the master stipulated to perform, and without the performance of which he would lose his right to the freight.

From these views, if correct, it is apparent that the expenses of storage and relading are not the consequences of any voluntary sacrifice, and are not conducive to the general benefit, and are not, therefore, subjects of charge by way of general average. The considerations suggested to the point, that the expenses were not for the common benefit, may be thus illustrated.

A claim for general average contribution, must rest upon a sacrifice or expenditure, for the general benefit. The loss of the voyage does not constitute a loss of the ship. The expenditures for preserving and relading the cargo, are exclusively to prevent a loss of the voyage, and not to prevent one of the ship, and therefore are not for the general benefit, and consequently not chargeable in general average.

The correctness of these results seems to me to be confirmed by the following considerations:

Suppose that the damage to the ship had been so great as to render her irreparable; the master would clearly have had a right to procure another vessel to carry on the cargo, and thereby become entitled to his freight; but no one would pretend that, in such a case, the expenses of such transhipment would be chargeable in general average: and if not in that case, why in this? The owner of the vessel and the shipper are as much benefited by the reshipment in one case as in the other. Neither the vessel, nor cargo, are lost or saved by the act or omission of the transhipment; it affects the freight only, that alone depends upon it, and that alone, therefore, should bear the expense of it. It is indeed said that this expense belongs to the cargo, and not to the freight, because the reshipment is a consequence of the accident which rendered the unlading necessary. But it seems to me that as the master is obliged to repair his vessel and relade the cargo in order to fulfil his contract and earn his freight, this expense is properly chargeable to that interest. The expenses indeed of reshipment, so far as they relate to the delivery of the cargo to the master, according to the usages of

the place where it is so shipped, are chargeable to the cargo; but those of taking it on board and storing it belong to the freight, for the reasons above stated. And it seems to me, therefore, that if this question were now to be settled for the first time, upon the first principles regulating general average, the adjustment made in Liverpool would be considered correct. But it remains to consider how far authority, or usage, has established a different rule.

:

And here it is observable, that, although the application of the general principles upon which contribution in general average are founded, is usually easy, it often involves the nicest distinctions and that it is impossible to reconcile with them, much that is found in the elementary writers and books of reports. I incline to think that too much weight has been given to usages and customs prevailing in different places: which will naturally be erroneous in many respects, being often established and acquiesced in without much inquiry or examination; and which require the analysis of judicial investigation to reduce them to a definite construction and within proper limits. In all doubtful cases, a custom or usage clearly proved ought to be decisive; but where it is evidently contradictory to or inconsistent with the fundamental legal principles regulating the subject to which it relates, it ought not to prevail unless it has received the sanction of judicial decision, and thus become a new element, of law; and even then it is a proper subject for revision, if the point do not appear to have been expressly presented, and discussed by the court.

Hughes, the latest English writer upon this subject, lays it down, that the expenses of a ship's going into port to repair damages sustained in a storm, are not fit subjects of general average, (except so far as regards a voluntary sacrifice of a part, by cutting away the rigging or the like,) and cites authorities which appear to sustain him in this position. Page 292. Abbott on Shipping, 349, seems to consider this the sound doctrine.

And Benecke, in his treatise, page 192, holds unequivocally the same doctrine. The case 3 M. and S. 432, Plummer v. Wildman, seems to import a contrary rule- but that case is afterwards explained in 4 M. and S. 141, Power v. Whit42

VOL. VI.-NO. XII.

more, so as to be consistent with the position taken by these authors.

Stevens on Average, page 25, lays down the rule generally without apparent regard to the distinction, whether the original damage was occasioned by accident or design; but seems to recognise the custom prevailing in England, of charging the expenses incurred expressly for the general benefit in general average; those of preserving the goods, to the cargo; and the outward charges, whereby the ship is again set forward on her voyage, to the freight; which was the rule adopted in this case.

I have no doubt, therefore, that under these authorities and this well ascertained usage, the adjustment, as made, would be binding in England, and here also, if a different rule has not been established by authority. Mr. Justice Story, in his edition of Abbott, 1829, page 350, note, says, 'the rule seems definitively settled in our principal commercial states, that whatever be the nature of the injury, whether arising from a voluntary sacrifice, or a mere peril of the sea, the wages and provisions of the crew from the time of putting away for the port, and every other expense necessarily incurred during the detention for the benefit of all concerned, are to become as general average :' and he cites, for this doctrine, Padelford v. Bordman, 4 M. R. 548; Clarke v. United Ins. Co., 7 M. R. 365; Spafford v. Dodge, 14 M. R. 74.

In the first case the expenses of unlading and relading are not enumerated, and probably none took place: it is observable, however, that the court cite with seeming approbation a passage from Beawes, in which unlading and relading are made chargeable in general average. I do not perceive that the second case bears at all upon the question. And the third is a mere recital of the point that wages and provisions are so chargeable where a vessel is obliged to go into port to repair damages sustained at sea, as decided in the former case. In 2 Pick. 8, Bedford Com. Ins. Co. v. Parker, the court cites a passage from Phillips on Insurance, page 338, that the expense of discharging the cargo to get a vessel afloat that is accidentally stranded, and of relading the cargo, are in practice brought into general average,' and they add that upon inquiry among underwriters in Boston, they find it to be the usage with them; and therefore they say it is the law.' But it is observable in the first place that

Phillips cites it merely as a usage here and without authorities to the point; and that no one case can be found in the English Reports which sustains it: and, in the second, that this point was not one in the case then before the court, but used merely in illustration, and so is not thereby expressly decided, though very clearly recognised. The court add, however, 'that a general practical construction which opposes no principle of law, but is agreeable to fair dealing, has the force of law;' and if, therefore, such construction is shown to be opposed to the first principles of the law upon this subject, the usage cannot prevail. These are all the cases in Massachusetts; and it is evident that the inclination of them is strongly in favor of the position assumed by the insurers. They do in fact, however, settle but one point directly, which is, that provisions and wages are chargeable in general average, where a vessel has put into port to repair damages sustained at sea and there is a strong analogy certainly between such expenses, and those of preserving and relading the cargo; but perhaps a distinction may be taken that such expenses are of inevitable necessity upon the owner to enable him to complete his contract with the other parties, and also of benefit to them as essential for the completion of the voyage: whereas the reshipment of the cargo is at the option of the shipper; is not essential to the beneficial use of the vessel, nor to the right of the master to recover his freight, as he would be equally entitled to it, if the shipper should decline relading the cargo.

By the English authorities, and indeed upon strict principle, the charging provisions and wages to general average in such cases, seems to be inconsistent with the nature of it; and if the court should consider it a departure from the original rule, they may be inclined to go no further.

The New York cases however support the ground taken by the insurers.

Upon the whole, therefore, it appears to me that upon the strict principles of law regulating general average contribution, the expenses of the storage and reshipment of the cargo, do not belong to that class, but should be apportioned upon the cargo and freight as partial loss; the storage and delivery of the goods to the cargo, and the receiving and lading to the freight.

C. G. L.

DIGEST OF RECENT DECISIONS.

Principal Cases in

5 PETERS'S REPORTS of Cases in the Supreme Court of the United States.

5 WENDELL'S REPORTS of Cases in the Supreme Court, and Court of Impeachment and Correction of Errors in New York.

3 and 4 OHIO REPORTS of Cases in the Supreme Court of Ohio.

9 PICKERING'S REPORTS of Cases in the Supreme Court of Massachusetts.

ABANDONMENT.

1. The assured has a right to abandon if the costs of repairs would exceed half the value of the ship at the port of repair. Patapsco Insurance Company v. Southgate, 5 Pet. 621.

2. The sale would not be conclusive, as to such value.

Ib.

3. Though no particular form of abandonment is necessary, yet

the intention to abandon ought to be made known explicitly. 7b. 4. Where the consul inserted in the protest of the master, at his request, explicit abandonment by the master in behalf of himself and owners, to the underwriters, which protest was transmitted to them by the plaintiffs, it was held a sufficient abandonment that though an unauthorized act on the part of the master, the owners by their acts had made it their own. lb.

5. The court in their opinion, seem to think that where the property has been legally transferred by a necessary and justifiable sale, no abandonment is necessary. Ib.

See INSURANCE.

ACTION.

1. A suit does not terminate with the judgment; proceedings on the execution are proceeding in the suit. Union Bank of Georgetown v. Geary, 5 Pet. 99.

2. Where A, in consideration of property transferred and delivered to him by B, promises to pay and discharge, amongst other creditors of B, named and specified at the time, the demand or claim of C against B, on certain notes held by him, an action will lie by C against A, although the promise of A is not reduced to writing. Ellwood v. Monk, 5 Wend. 235.