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delivered entire to the lenders, and to be under their absolute control, until repayment of what was due to them. (See the observations in the note at page 172.) It does not appear that Androcles and Nausicrates, who lent their money to the brothers of Lacritus, either sent out an agent in the ship, or had one in any of the foreign ports. Hippias, who went out as supercargo, though he gives evidence for the plaintiffs, is not represented as having any connexion with them. It is reasonable indeed to suppose, that the capitalists who supplied funds to the merchants would sometimes repose confidence in the owner or master of the ship, or in some of the passengers or other parties going out, who, if they could not check or prevent fraud, would at least have the means of reporting and disclosing it. Thus, for example, Chrysippus and his brother in the first instance place reliance on Lampis, who gave them information concerning Phormio's breach of contract, though afterwards (as they say), he entered into a league with Phormio against them. Androcles and Nausicrates stipulate that the return cargo shall be brought home in the same ship that takes the outward cargo, the ship, namely, of Hyblesius, in whom, or in whose servants or connexions, they may have had reason to put trust. It is observable that the brother of Hyblesius, and the pilot, as well as the supercargo, give evidence for the plaintiffs.

With respect to the guarantee alleged to have been given by Lacritus on behalf of his brothers, there appears to be no evidence to support it. At the same time, it is likely enough that his position and presence in Athens operated as some inducement to give credit to his brothers. In the case of Dionysodorus, one of the borrowers remains at Athens, while the other goes to sea. A foreign merchant, who had neither family nor friends nor property in Athens, could have had very little personal credit, generally speaking.

We may further notice, that by express contract all the property of Artemo and Apollodorus, as well as the return cargo, is made liable for repayment of the loan, in the event of their security being found deficient; and the creditors are empowered to seize their property in execution, in the same manner as if a judgment had been recovered. This right however was subject to the clauses providing for abatement in certain events, and for the case of a total loss.

III. As to the proviso for deductions.

The agreement declares that no abatement shall be allowed, except for jettison, made by a common resolution of the passengers, or for

payments made to enemies.

Jettison is the throwing overboard of a portion of the merchandize in the vessel, in order to lighten the vessel and preserve the rest of the cargo. The regulations respecting it have prevailed among maritime nations for many ages, and are founded on principles of natural equity. It happens usually in a storm. The heaviest or most cumbrous goods are thrown over, as a matter of necessity;

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the merchant is obliged to submit to it for the common welfare, and is entitled to contribution from those who have reaped the benefit, in proportion to the value of the property which has been saved to them respectively. As the reader will get little or no information upon this subject from the ordinary writers on Attic law, and the subject is interesting and important, it is desirable to throw some light upon it by reference to the laws of other countries.



The contribution above mentioned, which is made by all parties towards a loss sustained by some for the common benefit, has in modern times been called by the name of "general average.' custom is said to have been derived from the laws of Rhodes, and was adopted in the Digest of Justinian, with an express recognition of its origin in the Rhodian law, though, as appears from this legal document produced by Demosthenes, the principle was not unknown to the Athenians. The principle has been recognized by most commercial codes, but with some variation in the practice.

The rule of the Rhodian law, which is said to have been introduced into England by William the Conqueror, is as follows:-If goods are thrown overboard in order to lighten the ship, the loss, incurred for the sake of all, shall be made good by the contribution of all. The goods must be thrown overboard. The mind and agency of man must be employed; if the goods are forced out of the ship by the violence of the waves, or are destroyed in the ship by lightning or tempest, the merchant alone must bear the loss. They must be thrown overboard to lighten the ship; if they were cast overboard by the wanton caprice of the crew or the passengers, they, or the masters and owners for them, must make good the loss. The goods must be thrown overboard for the sake of all; not because the ship is too heavily laden to prosecute an ordinary course through a tranquil sea, which would be the fault of those who had shipped or received the goods; but because at a moment of distress and danger their weight, or their presence, prevents the extraordinary exertions required for the general safety. When the ship is in danger of perishing from wind or tempest; or when a pirate or an enemy pursues, gains ground, and is ready to overtake; no measure, that may facilitate the motion and passage of the ship, can be injurious to any one, who is interested in the welfare of any part of the adventure, and every such measure may be beneficial to almost all. In such emergencies, therefore, it is lawful to have recourse to every mode of preservation, and to cast out the goods in order to lighten the ship, for the sake of all. But if the ship and the residue of the cargo be saved from the peril by the voluntary destruction or abandonment of part of the goods, equity requires that the safety of some should not be purchased at the expense of others, and therefore all must contribute to the loss.

Many foreign ordinances have prescribed certain forms to be adopted with reference to jettison; some of them have even named

the persons to be consulted before it takes place, and some have specified the sorts of goods that shall be first thrown over; and various minute rules have been laid down. It has justly been observed by Lord Tenterden in his treatise on the law concerning Merchant Ships and Seamen, that "Regulations prescribed by persons at ease in the closet or the senate house will seldom be followed at the moment when life or liberty is in jeopardy; at such a moment every one present will exclaim with the friend of Juvenal,

"Fundite quæ mea sunt, etiam pulcherrima."

And, if the jettison has been the effect of danger and the cause of safety, all writers agree that contribution ought to be made, although the forms have not been complied with. Previous deliberation, if there was time to deliberate, and a due choice of the heaviest and most cumbersome articles, may be proofs of the necessity and propriety of the act; but they are not the only proofs, and therefore are not to be deemed essential. It has been said also by the last mentioned writer, that in this case, as in many others, too close a compliance with forms, at a moment of supposed danger, may afford ground for a suspicion of fraud. In all cases, however, and in all countries, it has been required of the master that he draw up an account of the jettison, and verify it by the oath of himself and some of his crew, as soon as possible after his arrival at any port, that there may be no opportunity to purloin goods from the ship and then pretend that they were cast over in the time of peril.

Other goods which are damaged or destroyed, in order to accomplish the jettison, are to be included in the contribution; and also expenses incurred in relation to them, as where it has been necessary to unlade, repair, and reship. And the same rule extends to the ship, its tackle and furniture; as where the masts and cables are cut away to prevent shipwreck; or where the deck or sides have been cut to facilitate a jettison, or other extraordinary damage has been done, or expense incurred, with the same view.

The agreement in Demosthenes allows for jettison only where it has been made under a common resolution of all on board. This accords in some measure with the rule laid down by Beawes in his Lex Mercatoria, who says that in order to make the jettison legal three things must concur

"First, that what is so condemned to destruction, be in consequence of a deliberate and voluntary consultation held between the master and men.

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2ndly. That the ship be in distress, and that sacrificing a part be necessary in order to preserve the rest.

3rdly. That the saving of the ship and cargo be actually owing to the means used with that sole view."

Of these the first and third conditions are not imperative in our law, but only the second.

It appears also that, by the laws of Wisbuy,' in an emergency of such a nature as to justify the lightening of the ship, it was necessary first to consult the owner of the goods or the supercargo; but, if they would not consent, the merchandize might, notwithstanding their refusal, be ejected, if it appeared necessary to the rest of the people on board; a regulation evidently founded on necessity, to prevent a sordid individual from obstructing a measure so essential to the general safety.

If the jettison does not save the ship, but she perish in the storm, the rule is, that there shall be no contribution of such goods as may happen to be saved; because the object for which the goods were thrown overboard was not attained. But if the ship, being once preserved by such means, and continuing her course, should afterwards be lost, the property saved from the second accident shall contribute to the loss sustained by those whose goods were cast out on the occasion of the former peril.

With respect to insurance, the law is laid down by Roccus, to the effect that the insurers are liable to pay the insured for all expenses arising from general average, in proportion to the sums which they have underwritten; and in England the underwriter almost always

(1) "It would be improper to pass over the laws, which were ordained by an industrious and respectable body of people, who inhabited the city of Wisbuy, famous for its commerce, and renowned on the shores of the Baltic. The merchants of this city carried on so extensive a trade, and gave themselves up so entirely to commerce, that they must doubtless have found a great inconvenience in having no maritime code, to which they could refer to decide their disputes. To such a cause we are probably indebted for those laws and marine ordinances, which bear the name of Wisbuy, which were received by the Swedes, at the time they were composed, as a just and equitable rule of action, and which were long respected and observed by the Germans, Swedes, Danes, and all the Northern nations; although the city in which they received their origin has dwindled into insignificance. At what time these laws were compiled is a matter of dispute. The writers of the North pretend that Wisbuy was a great commercial city in the ninth century; from whence they argue, that their laws must be of very high antiquity; that they were the model from which those of Oleron were copied, and that they were received and acknowledged by all nations in Europe, even to the Straits of Gibraltar. On the other hand it is answered, and with much strength of reasoning, that the Northern code is a transcript from that of Oleron, although it contains several additions; for it has been shewn, that the laws of Oleron were promulgated by Richard the First about the close of the twelfth century, at which time, as appears by the report of a Swedish historian, the city of Wisbuy was not built, nor for near a century afterwards; that the inhabitants were merely strangers collected together from different parts, who, so far from having any power or influence over their neighbours, were not absolute masters of their own city. Besides, if their laws had been prior to those of Oleron, we should have found in the latter some regulations respecting insurances; because a copyist never would have omitted so material a branch of commercial legislation, the laws of Wisbuy having expressly mentioned insurances, and provided that, if the merchant obliged the master to insure the ship, the merchant shall be obliged to insure the master's life against the hazards of the sea.

"But, if the laws of Wisbuy were not prior to those of Oleron, yet it is much to their honour, and shews in what estimation they were held in the greatest part of Europe, that, after having for a long course of time enjoyed the highest authority in all the Northern tribunals for maritime affairs, they were thought worthy of being adopted as the basis of the ordinances of the Hanseatic league."-Park's Introduction to his treatise on Marine Insurance,

engages by express contract to indemnify against losses from general


How far the customs of the ancient Greeks, or at least the Athenians and those with whom they traded, resembled the customs of modern nations, with respect to this matter, it is impossible to declare with any certainty. We know that Androcles and Nausicrates agreed to make an allowance to Artemo and Apollodorus for any loss incurred by jettison, which should have been made by a resolution of all the passengers, meaning (I presume), a resolution passed by the majority. It may be asked-did this mean that an allowance was to be made for jettison of the borrowers' goods only, in case any of them were cast overboard; or does it presuppose a general average, so that the allowance would be for their lost goods, so far as they had not been indemnified by contribution, or for the share which they had contributed to the loss of any other persons? I can hardly doubt that there was this general average, or something equivalent to it. The fact, that a vote of the passengers was necessary to authorise a jettison, warrants the inference that there must have been some indemnity given to the persons whose goods were selected to be thrown over. The heaviest and most cumbrous goods would commonly be selected for that purpose: but it would be a monstrous injustice that the owner of such goods should be a victim for all the rest. It was the more necessary in those times that an equitable contribution should be resorted to, as the practice of insurance was unknown.

An allowance was also to be made under the Attic agreement for "payments made to enemies." This (I presume) would include all monies paid by way of ransom upon any capture or detention by enemies or pirates, and all compulsory payments made to enemies for liberty to proceed on the voyage or on any other account. Under modern ordinances it has been laid down, that, if part of the cargo be voluntarily, and without any fraud or cowardice, delivered up to a pirate or an enemy by way of ransom or composition, to induce him to spare the vessel and the residue of the cargo, or if a sum of money be paid by way of ransom, the value of what is saved must contribute to such loss; not so however, if the enemy or pirate, having overpowered the ship, select for himself such plunder as he chooses to take; for then it is not the price of safety to what remains. It has been said also that, if a ship has been carried into an enemy's port, and the crew remain on board to reclaim and take care of her, not only the charges of reclaiming her, but the wages and expenses of the ship's company shall be brought into general average. In England however ransom can rarely be made the subject of general average, for it was forbidden under a heavy penalty by a statute passed in the reign of George III., "unless in case of extreme necessity to be allowed by the Court of Admiralty," and all contracts for ransom contrary to the statute were declared void.

Capture by the enemy has been very commonly made the subject

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