rages now adopted in England is conformable to that rule, CHA P. which has abolished the diftinction. VII. Gold, filver, and jewels, at moft places, contribute to a general average, according to their full value, and in the fame manner as any other fpecies of merchandize. It has 1 Mag. 62. been faid, that an immemorial custom has prevailed at Am fterdam, that gold and filver fhall only contribute for half [129] their value: the reafon for fuch a custom, one is at a lofs to conjecture. In England no fuch custom prevails; but mo- Molloy, tit. ney and jewels must fall into the general average at their Average, f. 4. full price; and a modern writer affures us, that the practice 1 Mag. 62, was fuch in London when he wrote; and fuch, I believe it to be at this day. ..In a late cafe, the doctrine here advanced was mentioned Peters v. Milli and confirmed by Mr. Justice Buller, as clear law. gan, Sittings at Guildhall after Michaelmas, The contribution is in general not made till the fhip ar- 1787. rive at the place of delivery: but accidents may happen, Roccus de Nawhich may cause a contribution before the reach her deftin- vibus, Not. 96. ed port. Thus when a veffel has been obliged to make a jet- 1 Mag. 60. tifon, or, by the damages fuffered, foon after failing, is oblig ed to return to her port of discharge; the neceffary charges of her repairs, and the replacing the goods thrown overboard, may then be fettled by a general average, Thus I have endeavoured to lay before the reader an idea of what is meant by average; and, in order to do that more diftinctly, I have defined what average is; I have fhewn its origin; and what the neceffary requifites are to render the act, whence average arifes, legal. I then stated in general what accidents or expenfes would authorize the sufferer to call for a contribution: the different kinds of property that were fubject to fuch contribution; and laftly, the mode by which the value of this property was to be ascertained. It only remains now to ftate, that the insurers are liable to pay the infured for all expenfes arifing from general average, in VII. Roccus de affecurationibus, Not. 62. CHA P. in proportion to the fums they have underwritten. Roccus says, " Factu facto, ob maris tempeftatem, pro fublevanda navi, an teneantur affecuratores ad folvendum aftimationem rerum “jactarum domino ipfarum? Dic eos non teneri, quia pro rebus "jactis fit contributio, inter omnes merces habentes in illa navi pro folvendo pretio domino ipfarum, et ideo fi affecuratus recu"perat pretium rerum jactarum, non poteft agere contra affecu "ratores; tamen tenentur affecuratores ad reficiendum illam "ratam et portionem, quam folvit affecuratus in illam contribu[130] "tionem faciendo inter omnes, habentes merces in illa navi, quæ "portio cum non recuperetur ab aliis, habetur pro deperdita, et "proinde ad illam portionem tenentur affecuratores.” [130a] The opinion of this learned civilian is agreeable to the laws of all the trading powers on the continent of Europe, as well as to thofe of England, where the infurer, by his contract, engages to indemnify against all loffes arifing from a general average. In the former editions of this work, I had contented myfelf with stating the nature of general average, and that the fums paid on this account might be recovered against the underwriters. But I had omitted to state what remedy the perfon, whofe goods were thrown overboard, or who had expended money for the general preservation of fhip and cargo, had against those, whose goods or ship were preserved by fuch means. In the cafe of an expenditure of money, probably an action for money paid might be maintained against each of thofe, who were benefited by fuch expenditure. But as this would lead to a multiplicity of actions; and this fpecies of action is not applicable to the cafe of goods thrown overboard, the better mode in all cafes feems to be to apply Chancery, (21) for contribution to a court of equity, where effectual relief may be obtained against all the parties in one fuit. Com. Dig. tit. and Shower's Parl. Caf. CHAPTER THE EIGHTH. so Of Salvage. SALVAGE is fo neceffarily connected with the two former CHA P. chapters, that it will be proper to take it into confider ation here, before we proceed to the other parts of this inquiry. VIII. Merc. 146. Salvage is an allowance made for saving a ship, or goods, or Beawes Lex both from the dangers of the feas, fire, pirates, or enemies; and it is also sometimes used to signify the thing itself which is faved; but it is in the former fenfe only, in which we are at present to confider it. Kaim's Princ. of Eq. Introduct. p. 6. The propriety and justice of such an allowance must be evident to every one; for nothing can be more reasonable than that he, who has recovered the property of another from imminent danger by great labour, or perhaps at the hazard of his life, fhould be rewarded by him, who has been fo materially Leg. Rhod. f. z. benefited by that labour. Accordingly, all maritime states, art, 45, 46, 47. from the Rhodians down to the present time, have made certain regulations, fixing the rate of falvage in fome inftances, and leaving it, in others, to depend upon the particular circumftances. The law of England, the decisions of which are not surpassby thofe of any other nation, in justice and humanity, was not backward in adopting a doctrine fo equitable in its nature, and fo beneficial to those whofe property was endangered. Thus in an action of trover, the defendants pleaded, that the Hartford v. goods, for which the action was brought, were in a ship, which Jones, I Ld. Raym. 393. 2. took fire, and that they hazarded their lives to fave them: but Salk. 654. that they were ready to deliver the goods, if the pliantiff would; pay 4. for falvage. The court, upon a general demurrer to this plea, were obliged to give judgment for the plaintiff, tecause the special plea did not confefs a converfion. But upon the general point, for which this cafe is cited, Lord Chief Juftice Holt VIII. CHAP. Holt held that the defendants might retain the goods till payment of the falvage, as well as a taylor, an oftler, or a common carrier and falvage is allowed by all nations; it being reasonable, that a man fhould be rewarded, who hazards his life in the fervice of another. Therefore his lordship, in favour of so just a claim, allowed the defendant to waive his fpecial plea, and plead the general issue. Vide the paffages laft cited. As the propriety of fuch an allowance is admitted by all, the only difficulty that can arife upon the subject is, to afcertain in what proportions thefe gratuities and rewards must be allowed. The laws of Rhodes fixing the rate of falvage in feveral inftances, fometimes giving for falvage one-fifth of what was faved; at other times only a tenth; and at others, one half. Leg.Oler.art.4. The regulations of Oleron left it more unfettled, and declared, that the courts of judicature should award to the falvers, fuch a proportion of the goods faved, as they fhould think a fufficient recompenfe for the fervice performed, and the expenfe incurred. Almoft every ftate has regulations on this head peculiar to itfelf; and the legislature of this country has by various ftatutes expreffed its ideas upon the fubject. I shall first confider what rule it has established in cafes of wreck, and then what the rate of falvage is in cafes of recapture. 12 Ann, ftat. 2. c. 18. Sect. I. When a fhip has been wrecked, the law of England has followed the laws of Oleron in declaring, that reasonable salvage only fhall be allowed. But the ftatute will beft fhew the idea of the legislature. It appears from the preamble, that the infamous practices, which a former ftatute 27 Edward 3.c. 13. had endeavoured to fupprefs, of plundering thofe fhips which were driven on shore, and feizing whatever could be laid hold of as lawful prize, ftill continued; or that if the property were restored to the owners, the demand for falvage was fo exorbitant, that the inevitable ruin of the trader was the immediate confequence. The ftatute, in order to prevent thefe mifchiefs in future, enacted, that if a ship was in danger of being ftranded or run afhore, the sheriffs, juftices, mayors, conftables, or officers of the customs, nearest the place of danger, should, upon application made to them,fummon and call together as many men as should be thought necef Lary VIII. fary to the affiftance, and for the preservation of such fhip in dif- CHA P. tress and her cargo; and that if any fhip, man of war, or merchantman, fhould be riding at anchor near the place of danger, the conftables and officers of the customs might demand of the fuperior officer of such ship, affiftance by his boats and fuch hands as could be fpared: and that if the fuperior officer should refufe to grant fuch afliftance, he fhould forfeit 100/ Then follows the fection refpecting falvage. "And for the Sect. 2. encouragement of fuch perfons as fhall give their affistance "to fuch fhips or veffels, fo in diftrefs as aforefaid, be it enact"ed, that the faid collectors of the cuftoms, and the mafter "and commanding officer of any fhips orveffels, and all others, "who shall act or be employed in the preferving of any fuch ship or vessel in diftrefs, or their cargoes, fhall, within thirty "days after the fervice is performed, be paid a reasonable re"ward for the fame, by the commander, mafter, or other fu66 perior officer, mariners, or owners of the fhip or vessel fo "in diftrefs as aforefaid, or by the merchant whofe veffel or goods fhall be fo faved; and in default thereof, the faid fhip or veffel fo faved fhall remain in the cuftody of the officers of "the customs until all charges are paid, and until the officers "of the customs, and the mafter or other officers of the fhip or veffel, and all others employed in the prefervation of the "fhip, fhall be reasonably gratified for their affiftance and trou"ble, or good fecurity given for that purpose, to the fatisfac"tion of the parties that are to receive the fame : and if any "difagreement fhall take place between the perfons, whofe fhips or goods have been faved, and the officer of the cuftoms, touching the monies deferved by any of the perfons fo employed, it fhall be lawful for the commander of the ship or vessel fo faved, or the owner of the goods, or the mer"chant interested therein, and alfo for the officer of the cuf"toms, or his deputy, to nominate three of the neighbouring "juftices of the peace, who fhall thereupon adjust the quan"tum of the monics or gratuities to be paid to the feveral "perfons acting or being employed in the falvage of the faid fhip, veffel, or goods; and fuch adjustments shall be "binding upon all partics, and fhall be recoverable in an ac"tion at law and in cafe it fall fo happen, that no perfon "fhall |