Page:Harvard Law Review Volume 9.djvu/220

1^3 HARVARD LAW REVIEW, they threw overboard, for the necessary preservation of the ship, and with the assistance and approbation of the mate, whom they called to their aid in navigating the vessel, the guns, two anchors, two cables, and other stores from the middle deck. On the foU lowing day, the ship was retaken by the mate, with the assist- ance of some Italians in the Frenchman's service, and was carried into Gibraltar. The owners of the ship succeeded in an action for contribution against the owners of the cargo. This case is referred to in Ralli v. Troup as if the fact that the mate ordered the jettison supported the contention that the master, or in his absence the mate, must be the actor. It is plain, however, that the mate was not acting as the agent of the owners of the ship and of the shippers, but as the prisoner and servant of the captors, who themselves conferred the benefit. The defendant's counsel in that case argued that general aver- age arose from the act of the master and mariners, which he truly remarked was not the case in this instance. The court over- ruled the objection. It is clear from an examination of the opinion of Mansfield, C. J., that the action of the mate is referred to only as proving the necessity of the jettison. It was so understood by Lord Tenterden. In the fifth edition of Abbott on Shipping, the last edition for which the author was responsible, the case is stated thus (the italics in text and note are by the author) : " And it has been decided in an English court in the case of a ship captured and afterwards recaptured that the shippers of goods were liable to contribution for stores necessarily thrown overboard during a storm while she was in the hands of an enemy." The note to this case is as follows : ** Price v. Noble, 4 Taunt. 123. In this case the necessity of the jettison zuas prove dhy the testimony of the mate, who had not been taken out of the ship, and who had effected the recapture."^ In some editions later than the fifth, this note is omitted, and the words " with the advice of the mate " are inserted in the text in speaking of the jettison. I suppose that the change was made by Shee, J. These changes seem to show that some editors may 1 In the preface to the thirteenth edition, the learned editors say that they have en- deavored " to reinstate (except so far as it is obviously obsolete) the fifth edition, which was the last for which Lord Tenterden was responsible." This passage they have reinstated. See 5th ed. p. 348; 13th ed. p. 642.