Page:Harvard Law Review Volume 9.djvu/217

GENERAL AVERAGE. 189 be ordered by any one connected with the adventure ; and that if so ordered, it is not necessarily binding on an owner of cargo. Under this doctrine of equity and equality, would any one imagine that my right of contribution for my goods successfully jettisoned for the general safety, should depend upon whether the order for the jettison came from the commander of the ship? The alternative would be that I should recover the whole value of my goods from the passenger effecting the jettison, or from the owners of the ship, if it was done by the crew ; but Mouse's case, which I shall refer to presently, closes this alternative. I shall try to prove that the authorities, so far as any are at all analogous to the case under consideration, do not sanction such a narrow doctrine as is now announced. It is true that the master is, by necessity, in times of peril, the agent of all persons interested ; his power, responsibility, and duty as such agent are much enlarged upon in many cases ; but they were cases where he had ordered the sacrifice, and where the question was whether the loss should fall upon him and his owners, or be brought into contribution. In almost all cases, the master does order the act. In ordering a jettison, however, the master does not act as agent of the owner of the goods cast overboard, but as commander of the ship. In the Rolls of Oleron and the Laws of Wisby, it is adjudged, that if merchants are on board the ship, the master should consult them before throwing over their goods ; but they further say that if the merchants refuse their consent, he may none the less make the jettison lawfully, if he and a certain pro- portion of his crew will on reaching land make oath that it was necessary for the common safety, which is the quaint mediaeval way of saying if the necessity existed.^ This example teaches that the master does not act as agent of the owner of the goods jettisoned (for the principal was present and refused his consent), but as a man in authority, like the fire companies, and that a voluntary sacrifice of merchants' goods does not mean a willing one on their part. An early English case of jettison is Mouse's case.^ There a barge, used as a ferry-boat between Gravesend and London, met 1 Rolls of Oleron, Parrlessus, vol. i. p. 328 ; Laws of Wisby, Pardessus, vol. i. p. 490; Black Book of the Admiralty, vol. iv. p. 276. 2 12 Rep. 63.