Page:Harvard Law Review Volume 9.djvu/218

190 HARVARD LAW REVIEW, with a storm, and goods were ejected, " some by one passenger, and some by another," and the owner of certain goods so jettisoned brought an action against the passenger who threw them over ; and the court held that if the jettison was necessary for the safety of the passengers, it was lawful ; and the jury having found the necessity, the defendant had judgment. The master is not men- tioned in connection with the jettison. Mr. Carver's comment on this case is : " In Mouse's case, a jettison by a passenger for the general safety was held to be lawful ; and though nothing was said there about general average contribution, there can be little doubt that if the jettison for the general safety has been lawful, the rule of contribution applies, however it was made."^ Professor Par- sons makes a similar comment. ^ These remarks of Mr. Carver follow this statement in the same paragraph: "The sacrifice ought, generally speaking, to be made under the directions or with the authority of the master or other person in command of the ship. But that does not appear to be an essential ; the real questions are, Was a sacrifice necessary for the general safety.^ and Were the measures taken reasonably prudent in view of that necessity.-* It is conceivable that a sacrifice might fulfil these con- ditions, although made contrary to the will of the master." In this he adduces and approves the opinion of Benecke.^ In a note he says: "But cf. Macl., p. 664; Phillips Ins., § 1280 ; Jacobsen, Sea Laws, bk. iv., ch. 2, p. 345 ; Authority of Crew, The Nimrod, Ware, 14." I find nothing in the latest edition of Maclaughlan, nor in Jacob- sen, opposed to Carver and Benecke. Phillips, § 1280, simply makes a short quotation from Judge Ware's decision in The Nim- rod. In that case, the question was whether one of the crew, who had jettisoned certain goods while the master was below, and whose act the master promptly disapproved, had thereby forfeited his wages ; and the decision was that he had not. The learned judge says, in substance, that it is for the master to give the orders for the sacrifice, and not for the crew to act without his orders. "What they might be justified in doing in extreme cases, such as were put at the argument, it is unnecessary to decide until those cases occur." It will be noticed that this was a question of the proper conduct of a seaman, and not of general average. The decision was that 1 Carriage by Sea, 374. 8 Qn Insurance, p. 172. 2 Shipping and Admiralty, 339.