Page:Federal Reporter, 1st Series, Volume 9.djvu/189

I7e FEDBKAli IIEPOBTEB. �constitutes a case of general average, Mr. Justice Story remarked that — �"The Roman law fiilly recognized and eriforced the leading limitations and conditions to justify a general contribution, which have ever since been steadily adhered to by all maritime nations: (1) That the ship and cargo should beplaced in a commoii imminent peril; (2) that there should be a voluntary sacrifice of property to avert that peril; and (3) that by that. sacrifice the safety of the other property should be preseutly and suceessfully attained. Hence, if there was no imminent danger, or necessity for the sacrifice, as if the jettison was merely to lighten a ship, too heavily laden by the fault of the master in a tranquil sea, no contribution was due. The con- tention of libellants, that the expenses incurred in this case were for the joint benefit of the ship and cargo, (because the voyage might otherwise have been indeflnitely prolonged,) is expressly declared in this case to be no ground for a general average contribution. It may be said that unless the ship is got off the voyage cannot be performed for the cargo, and the safety and prosecution of ■ the voyage are essential to entitle the owner to a contribution. But this principle is nowhere laid down in theforeign authorities; and certainly it bas Da foundation in the Roman law. It is the deliverance from an imme- diate, jrapending peril, by a common sacrifice, which constitutes the essence of the claim. * * * But, in truth, it is the safety of the property, and not of the voyage, which constitutes the true foundation of general average." �In the subsequent case: of Barnard v. Adams, 10 How. 303, it is said that "in order to constitute a case for general average, three things must concur, the first of which is a common danger; a danger in which ship, cargo, and crew all participate; a danger imminent and apparently inevitable, except by voluntarily incurring the loss of a portion of the whole to save the remainder." Subsequent cases in the same court reaffirm the same principle. The Hornet, 17 How. 100; The Ann Elizabeth, 19 How. 162; The Star of Hope, 9 Wall. 203. �. In his work on General Average, air. jjowndes states, as a funda- mental rule, p. 4: "That after the cargo is in safety, the benefit it may derive from being carried in the ship to its place of destination, is not a ground for making it eontribute towards the cost of repairing theiship, nor placing the ship in shape where she can be repaired;" citing Powell v. Gudgeon, 5 M. & S. 431, and Sarquy v. Hahson, 4 Bing. 131; Duncany. Beiison, 1 Exch. 537; 3 Exch. 644; Job y. Lang. te«, 6E. &B;^779. �None of the cases cited by libellants look to^yards any relaxation of the rule that imminent danger to the ship and cargo is an ingredient esseptial to a general average contribution. ��� �