Opinion of the Court. be an object of the sacrifice, nor a subject of the contribu tion. For example, from early times and in all countries, the master has been required, upon arrival of the ship in port, to make, with some of the crew, a protest, upon oath, that the jettison was made for the safety of the ship and lading, and for no other cause. Oleron, art. 8; Wisby, art. 20; 1 Malyne, (3d ed.) 113; Beawes, (4th ed.) 148; 2 Molloy, c. 6, § 2; Marsh. Ins. (5th ed.) 433; Abbott on Shipping, (11th ed.) 526. The first edition of Arnould on Marine Insurance, indeedsubstantially following 2 Phillips on Insurance, c. 15, sec. 2, (2d ed.) 96 contained this paragraph: "If, with a view to the general safety of ship and cargo, it becomes necessary to damage and destroy another ship, or any part thereof, the loss thereby incurred must, it seems, be made good by a general average contribution. Thus, if a number of ships are lashed together and one takes fire, and the crews of the others unite in scuttling the burning ship for the safety of the rest, the loss of the ship so sunk is said to be a general average loss, to which all those saved thereby must contribute; and the law is the same if a crew, for the safety of their own ship, cut the cable of another." 2 Arnould on Ins., pt. 3, c. 4, (1st ed.) 895, 896. This is not laid down absolutely, but only as "it seems," and "is said." The authorities there cited, as to contribution for one ship taking fire and scuttled to save neighboring ships, are Casaregis, disc. 46, no. 45; Ordinance of Bilbao, c. 20, art. 21; and 2 Azuni on Maritime Law, c. 3, art. 2. Casaregis states the point as a doubtful one, and the authorities to which he refers are conflicting, and more or less influenced by local law or custom. The Ordinance of Bilbao was a peculiar and local ordinance, apparently not in accord with the general law of Spain. 2 Magens, 400; Stevens and Benecke on Average, (Amer. ed.) 166; Gregorio Lopez, ad Partidas, pt. 7, tit. 15, 1. 12, note 2. And Azuni, speaking by way of illustration only, treats the right to destroy, and the duty to make contribution, as alike in the cases of a burning ship on the sea, and of a burning house upon land. Opinion of the Court. But the law of general average, in England and America, is limited to property included in a maritime adventure; and has no application to other property, on land, or to contracts relating to such property. In Welles v. Boston Ins. Co., 6 Pick. 182, sometimes cited as a judicial application of general average to insurance of buildings or their contents against fire, there was nothing of the kind. That was an action on a policy of insurance against fire on a stock of goods, the owners of which, upon the breaking out of a fire in the neighborhood, and with the consent of the insurance company, and in order to save the goods and the building containing them, procured blankets, wet them, and spread them on the outside of the building, whereby the building and goods were saved, and the blankets rendered worthless. The insurance company having admitted its liability for such proportion of the value of the blankets as the amount of its insurance on the plaintiffs' goods bore to the whole value of their goods and building, the court had no occasion to pass and did not pass upon that, saying only that, for a proportion of the sacrifice made by the plaintiffs, "they are equitably, if not legally, entitled to recover." The only claim in controversy was the claim of the plaintiffs to recover the whole value of the blankets, or at least to a contribution from neighboring buildings insured by the same company; and this claim was disallowed by the court. By our law, indeed, either public officers or private persons may raze houses to prevent the spreading of a conflagration. But this right rests on public necessity, and no one is bound to compensate for or to contribute to the loss, unless the town or neighborhood is made liable by express statute. 2 Kent Com. 338, 339; Bowditch v. Boston, 101 U. S. 16; Taylor v. Plymouth, 8 Met. 462; The John Perkins, 21 Law Reporter, 87, 97; The James P. Donaldson, 19 Fed. Rep. 264, 269. Another instance of a right founded on necessity is the case of The Gravesend Barge, or Mouse's case, decided and reported by Lord Coke, in which it was held that in a tempest, and to save the lives of the passengers, a passenger might cast out ponderous and valuable goods, without making himself Opinion of the Court. liable to an action by their owner. 12 Rep. 63; S. C. 1 Rol. R. 79; 2 Bulstr. 280. The suggestion of Arnould, in the passage above cited, that a ship, whose crew, for her safety, cut the cable of another ship, must contribute in general average for the value of the cable, is directly contrary to the opinion of Labeo, preserved in the Pandects, and approved by Emerigon. Labeo scribit, si cum vi ventorum navis impulsa esset in funes anchorarum alterius, et nautæ funes præcidissent, si nullo alio modo, nisi præcisis funibus, explicare se potuit, nullam actionem dandam. Dig. 9, 2, 29, 3; Emerigon on Ins, c. 12, sect. 14, § 5. In the case of a collision between two vessels, by the fault of both, the maritime law everywhere, by what has been called rusticum judicium, apportions equally between both vessels the damages done to both. The Catharine, 17 How. 170; The North Star, 106 U. S. 17; The Max Morris, 137 U. S. 1. But if the collision, without fault on the part of either vessel, is caused by inevitable accident, as by the one being driven by a storm against the other, then, although by the law of some European countries the loss is apportioned, yet by our law, as by the laws of Rome and of England, each vessel must bear her own loss, and, as said by Mr. Justice Story, "it is not the subject of apportionment, or contribution, or of general average in any form." Peters v. Warren Ins. Co., 3 Sumner, 389, 394; The Washington, 14 How. 532, 538; The John Fraser, 21 How. 184, 194. In the later editions of Arnould, by Machlachlan, the paragraph above quoted has been doubtingly retained, and finally omitted, and the following propositions laid down: "The singular law relating to this subject, adopted and observed by all the maritime peoples of Europe, and now also of America," "is unknown to us, except in connection with seafaring adventure." "When the danger is of a total loss of the common adventure, so imminent and conclusive as in the view of a judicious and skilled mariner to admit of but one alternative, and that the alternative of a sacrifice, say of part of the whole, the making of such sacrifice is justified in fact, becomes a duty of the master as agent of all, and is a general average Opinion of the Court. act in law." "In order to its being a general average act, it must have been done for the common adventure." 2 Arnould on Ins., pt. 3, c. 4, (3d ed.) 782; (5th ed.) 813,.814, 820, 832. Mr. Justice Shee, in a note to Abbott on Shipping, after reviewing the statements of many continental writers upon the subject, concludes: "Upon the whole, it is impossible, consistently with the opinion of Lord Tenterden, and with the doctrine of all the writers on maritime law, whose opinions have not been warped by the exceptional legislation or practice of the countries in which they have written, to recognize a rule respecting ship's expenses more comprehensive than the following one: Expenses voluntarily and successfully incurred, or the necessary consequences of resolutions voluntarily and successfully taken, by a person in charge of a sea adventure, for the safety of life, ship and cargo, under the pressure of a danger of total loss or destruction imminent and common to them, give, the ship being saved, a claim to general average contribution." Abbott on Shipping, (11th ed.) 537, note. In Harrison v. Bank of Australasia, L. R. 7 Ex. 39, 48, that statement was quoted as laying down the true rule, although there was a difference of opinion as to whether the facts of the case came within it. See also Robinson v. Price, 2 Q. B. D. 91, 94, 295. The general maritime law is in force in this country, so far only as it has been adopted by our own laws and usages. The Lottawanna, 21 Wall. 558, 572; The Scotland, 105 U. S. 24, 29; Liverpool Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 444. Three important decisions in the courts of the United States directly support the position that, in order to give a right to contribution in general average, the sacrifice must have been made for the safety of the common adventure, and for no other purpose. The Mary, 1 Sprague, 17; The John Perkins, 3 Ware, 89, and 21 Law Reporter, 87; The James P. Donaldson, 19 Fed. Rep. 264, and 21 Fed. Rep. 671. In The Mary, in the District Court of the United States for the District of Massachusetts, Judge Sprague, a most eminent admiralty judge, held that a voluntary sacrifice, made for the Opinion of the Court. general benefit of the whole adventure, and also for the particular benefit of the cargo, was not a subject of general average. 1 Sprague, 19. In The John Perkins, in the District of Massachusetts, two schooners, the John Perkins and the Wyvern, having accidentally been enclosed in a large and dangerous field of ice, and being in great peril, and the crews of both vessels having left them and escaped to the shore, except one Nickerson, who remained on board the Wyvern, which was at anchor, he, perceiving the John Perkins drifting towards the Wyvern, and to prevent a collision, cut the Wyvern's cable, and thus prevented the destruction of both vessels; and a libel was filed by him, and by the master, in behalf of the owners, officers and crew of the Wyvern, claiming salvage, and also damages, or else a contribution in general average, for the loss of her cable and anchor. Judge Ware in the District Court, and Mr. Justice Curtis in the Circuit Court on appeal, both held that neither the claim of salvage nor that of general average could be sustained; and Mr. Justice Curtis, reversing in this respect only the decision of Judge Ware, held that there could be no recovery in damages for the value of the cable and anchor. 3 Ware, 89; 21 Law Reporter, 87. Mr. Justice Curtis declared that the right of contribution in general average had never been, so far as he was aware, and could not be, extended beyond those who had voluntarily embarked in a common adventure; and therefore decided that the cutting of the cable of the one vessel by her crew, to avoid or escape an apprehended collision with the other vessel, made no case for contribution in general average. After saying, "It is certainly true that such a claim, when viewed theoretically, has an equity very similar to, if not identical with, that on which the famous Rhodian law was founded, and out of which the more modern doctrines of the law of general average have grown," he added, "At the same time, it is quite clear that the Roman law never applied the principle between mere strangers," and cited the opinions of Labeo and of Emerigon, above referred to, as being upon "the precise case under consideration, except that the cable is cut by the mari |