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AVERAGE damage, and the incidental expenses of unloading, storing, and re- to cause damage to sails and spars, or to engines and boilers ; and loading the cargo are, in such a case, treated as consequences of the they are treated as acts of sacrifice. A recent case {The Bona, 1895, original sacrifice, and therefore subjects for contribution. But P. 125), in the court of appeal, shows that the rules are in accord where the reason for putting in is to avoid some danger, such as a with English law upon the point. The court held that both the storm or hostile cruiser, or to effect repairs necessitated by some damage sustained by the engines while worked to get the ship off, accidental damage to the ship, the G. A. sacrifice is considered to and the coal and stores consumed, were subjects for G. A. contribe at an end when the port has been reached, if the ship and cargo bution at common law. Rule VIII. allows as G. A. any damage sustained by cargo when are then in physical safety. The subsequent expenditure in the port is said not to flow from that sacrifice, but from the necessity discharged and, say, lightered for the purpose of getting the ship oft of completing the voyage, and is incurred in performance of the a strand. And the corresponding damage in the case of cargo disshipowner’s obligation under his contract. The practice of English charged at a port of refuge to enable repairs to be done to the ship average adjusters has indeed modified this strict view by treating is allowed by Rule XII. But in the latter case the allowance does the expenses of unloading as G. A. ; but it may well be doubted not expressly extend to damage sustained while stored on land. whether that practice can be legally supported. Moreover, ex- Whether the law would require contribution to a loss of goods, say, penditure in the port which is incurred in protecting the cargo as by thieves or by fire, while landed for repairs, is not clear. Where in warehousing it, is by English practice treated as a charge to be the landing has been necessitated by a G. A. act, as cutting away masts, it would seem that the loss ought to be made good, as being borne by the cargo for whose benefit it was incurred. If we turn now to York-Antwerp, Rule X., it will be seen that a a result of the special risks to which those goods have thereby been much broader view is adopted. Whatever the reason for putting exposed. The risks which they would have run if they had remained into the port of refuge, provided it was necessary for the common on board throughout are taken into account, as will presently safety, the expenses of going in, and the consequent expenses of appear, in estimating how much of the damage is to be made good. Where cattle were taken into a port of refuge in Brazil, owing to getting out (if she sails again with all or part of her original cargo), are allowed as G. A., Rule X. {a). Further, the cost of discharging accidental damage to the ship, with the result that they could not the cargo to enable damage to the ship to be repaired, whether legally be landed at their destination (Deptford), and had to be caused by sacrifice or by accident during the voyage, is to be allowed taken to another port (Antwerp), at which they were of much less as G. A., “if the repairs were necessary for the safe prosecution of value, this loss of value was allowed in G. A. {Anglo-Argentine, <kc., the voyage,” Rule X. (&). And that is to be so even where such re- Agency v. Temperley Co., 1899, 2 Q.B. 403). The case of a stranded ship and cargo often gives rise to difficulty pairs are done at a port of call, as well as where done at a port of refuge. Again, when the cost of discharging is treated as G. A., so also are as to whether the cost of opei'ations to lighten the ship, and afterto be the expenses of storing the cargo on shore, and of reload- wards to get her floated, should be treated as G. A. expenditure, or ing and stowing it on board, after the repairs have been done, as expenses separately incurred in saving the separate interests. (Rule X. (c)), together with any damage or loss incidental to those The true conclusion seems to be that either the whole operation should be treated as one for the common safety, and the whole operations (Rule XII.). Further, by Rule XI. the wages of the master, officers, and crew, expense be contributed to by all the interests saved, or else the and the cost of their maintenance, during the detention of a ship several parts of the operation should be kept distinct, debiting the under the circumstances, or for the purpose of the repairs mentioned cost of each to the interests thereby saved. Which of these two in Rule X., are to be allowed in G. A. It is questionable whether views should be adopted in any case seems to depend upon the English law allows the wages and maintenance of the crew at a port motives with which the earlier operations (usually the discharge of of refuge in any case. Where the detention is to repair accidental the cargo) were presumably undertaken. It may, however, happen damage it seems clear that they are not allowed. And in practice, that this test cannot be applied once for all. Take the case of a under common law, the allowance is never made ; so that Rule stranded ship carrying a bulky cargo of hemp and grain, but XI. is an important concession to the shipowner. Like the changes carrying also some bullion. Suppose this last to be rescued and introduced by Rule X., it is a change towards the practice in foreign taken to a place of safety at small expense in comparison with its value. It may well be that that operation must be regarded as countries. It may be noted that the rules do not afford equal protection to done in the interest simply of the bullion itself, but that the a shipper in the comparatively infrequent case of his being put to subsequent operations of lightening the ship and floating her can expense by the delay at a port of refuge. Thus a shipper of cattle only be properly regarded as undertaken in the common interest of is not entitled to have the extra wages and provisions of his cattle- ship, hemp, grain, and freight. In such a case there will be a men on board, nor the extra fodder consumed by the cattle during G. A. contribution towards those later operations by those interests. the stay at a repairing port, made good as G. A. under Rules XL and But the bullion will not contribute ; it will merely bear the X. {Anglo-Argentine, <kc.. Agency v. Temperley Co., 1899, 2 Q.B. 403). expense of its own rescue {Royal Mail S. P. Co. v. English Bank of , , ^ t. , ,, As to the acts which amount to G. A. sacrifices, as distinguished Rio, 19 Q.B.D. 362). The York-Antwerp Rules have not only had the valuable result from expenditures, the York-Antwerj) Rules do not much alter Engcommon They do, make definite pro- of introducing uniformity where there had been great variety, and Geaeral lish visions upon law. some points on however, which authority was scanty corresponding certainty as to the principles which will be acted aver e
- f.
doubtful. (Seergo, Rules I.-IX.). Andfrom in Rule L, as to upon in adjusting any G. A. loss, hut also they have introduced sacrifices. jor j f q k a change is made the common ett SOI10 ec ca greater clearness and definiteness on points where there had been law rule, for the jettison is not allowed as G. A. even though the a want of definition. Thus Rule XIII. has laid down a careful and cargo be carried on deck in accordance with an established custom definite scale to regulate the deductions from the cost of repairs, in respect of “ new for old,” in place of the former somewhat uncertain of the particular trade. Rule III. deals with damage done in extinguishing fire on board customary rules which varied according to the place of adjustment ; a ship. Modern decisions have cleared away the old doubts whether while at the same time the opportunity has been taken of adapting such damage to ship or cargo should, at law, be allowed in G. A. the scale of deductions to modern conditions of shipbuilding. And But recent cases in the United States have raised the question Rule XVII. lays down a rule as to contributory values in place of whether the allowance should be made where the fire occurs in port, the widely varying rules of different countries as to the amounts and is extinguished, not by the master, but by a public authority upon which ship and freight shall contribute (cf. Gow, Marine ... acting in the interests of the public. The Supreme Court of the Insurance, 305). The adjustment of G. A., that is to say, the calculation United States decided against the allowance in 1894, in a case of Haiti v. Troup (157 U.S. 386). The ship had there been scuttled of the amounts to be made good to and paid by the several to put out a fire on board, by the port authority, acting upon their interests, is a complicated matter. It involves own judgment, but with the assent of the master. It was held that the damage suffered by ship and cargo ought not to be made good much detail and arithmetic, and requires a full by G. A. contributions ; for the sacrifice had not been made “by and accurate knowledge of the principles of the Qeaerai some one specially charged with the control and safety of that ad- subject. Such adjustments are made by men Average. venture,” but was the compulsory act of a public authority. On who make the subject their profession. In the other hand, in the English case of Papayanni v. Grampian S.S. Great Britain they are for the most part members of the Co. (I. Com. Ca. 448), Mathew, J., held that the scuttling of a ship at a port of refuge in Algeria, by orders of the captain of the Average Adjusters’ Association, a body which has done port, was a G. A. act. It had been done in the interest of ship and is doing much careful work with a view to making and cargo, and there was no evidence of any other motive. and keeping the practice uniform and in accord with Rule V. deals with the question whether, and under what con- right principles. This association has gradually formuditions, a voluntary stranding of the ship is a G. A. act, in a manner which will probably be held to express the law in England lated, at their annual meetings, a body of practical rules when the matter comes up for decision. . which the individual members undertake to observe. Rules YI. and VII. deal with the damage sustained by the ship, They will be found in the annual reports of the society or her appliances, in efforts to force her off the ground when she (and see Gow, Marine Insurance, 330). has stranded. Such efforts involve an abnormal use which is likely
