Page:Harvard Law Review Volume 9.djvu/219

GENERAL AVERAGE, 19^ the sacrifice was not wanton, and therefore there should be no for- feiture of wages. In other words, there was a reasonable ground for the jettison ; and if so, it was, in my opinion, a case for con- tribution, if that had been the question before the court. There was a decision in the District Court for Massachusetts that a. necessary jettison of certain rolls of leather by seamen without the orders of the master, and disapproved by him, gave occasion for a general average adjustment.^ The able and learned counsel who had brought his libel against the owners of the ship, for the whole damage, was not satisfied with the decision. I would suggest that he did not give sufficient credit to the fact of neces- sity, which was evidence that without the jettison his clients would have lost their goods entirely, instead of only their propor- tionate share. A French commentator puts jettison by the crew, without the master's order, as general average, if the necessity existed ; and he thinks that the German Code, which requires, as he understands it, the master's order, to be too restrictive (Val- roger. Droit Maritime, vol. v., p. 35, No. 2006). It is pertinent to observe that Mr. Justice Brown, granting that the master is to give the order, considers that any person in lawful command is the equivalent of the master. I agree to this ; but do not admit the major premise. The German Code, art. 702, says : " All damage done to ship or cargo or both by the master or by his orders, with intent to save both from a common danger, as also the consequen- tial damages resulting therefrom, and the expenses incurred for the same purpose, are general average." In no other code, or else- where, that I know of, is the master mentioned in the definition, though it is assumed that he usually orders the sacrifice. Lord Tenterden cites Mouse's case in his description of ** gen- eral average " as one of a lawful jettison, from which it may be fairly inferred, I think, that he would have agreed with Carver and Parsons that it was a case for contribution. In an English case tried in 1811,^ it was proved that an English vessel had been captured by French privateers, who took out the captain and crew, except the mate and two of her men, and put on board her a French prize-master and part of the privateer's crew, and shaped their course for Marseilles ; and a storm arising, 1 The Adriatic, ex relatione J, Lathrop, now Lathrop, J., of the Supreme Court of Massachusetts, who is the counsel referred to. I made the decision, but had for- gotten it. ' Price V. Noble, 4 Taunt. 123.