GENERAL AVERAGE, ^93 have attributed more importance to the mate's advice than did the author ; but the decision was rightly understood by Lord Tenter- den. The true text and note are restored in the thirteenth edition. In Parsons the note is this, "The owners of cargo are liable to contribution for ship's stores necessarily thrown overboard after a vessel is captured and when she is in the hands of the captors. Price V. Noble, 4 Taunt. 123." ^ As I have already said, the case of injury by water used to put out a fire, or to the ship by cutting holes in her deck or hull for that purpose, was not brought before the courts until 1855. In that year, Nimick v. Holmes ^ was decided. In that case, Lowrie, J., delivering the opinion, says, " It makes no difference how the water is applied, by the aid of fire-engines on the land, or in the form of steam, or by scuttling the vessel. All three modes were tried in this case before the success was completed I have itali- cised the statement that fire-engines were used, because this fact is overlooked in both the cases I am reviewing. In the first English case ^ (1873) which changed the practice of adjusters in England, * this passage is quoted with approval by Quain, J., delivering the considered opinion of the court, who could find no English case upon the subject. It is true that the opinion in that case was not a decision, because the parties had agreed that average, if any, should be adjusted according to British cus- tom, and it appeared that British adjusters treated such a loss as a particular average. In a later case ^ the stipulation was : " All questions of general average to be settled according to the custom of London Underwriters at Lloyd's," and a jury found that there was no custom of underwriters to treat such a loss as a particular average, and a judgment for general average was recovered. Nimick v. Holmes is cited in several other English cases, with approval, though without any quotation from the opinion.^ The rule being established and fully recognized that in general the damage by water is to be compensated for, I shall now refer 1 Parsons on Shipping and Admiralty, 352, note. 2 25 renn St. 366, 373. 8 Stewart t^. W. I. and Pac. S. S. Co., L. R. 8 Q. B. 88, 93.
- 2 Asp. Mar. Cases, N. S. 32, note a.
- Achard v. Ring, 2 Asp. Mar. Cases, N. S. 422.
- See Pirie v. Middle Dock Co., 4 Asp. Mar. Cases, N. S. 388, 392 ; White Cross
Wire Co. v. Savill, 2 Q. B. D. 653, 660. 26
