shipper through the medium of a sale: Richardson v. Nourse, 3 B. & Ald. 237 (E. C. L. R. vol. 5), and in this case the shipper may sue the shipowner; or the master may hypothecate part or the whole of the cargo, which gives a right to the proprietor of it to *recover a *596] compensation from the owner of the vessel. All these are merely modes of raising money by the agent of the shipowner on his account, and for his use, to enable him to do his duty by repairing the vessel; and in all the shipowner must repay the lender. The agency to borrow by these various modes, and so to bind his employer to the lender, is cast upon the master by the necessity of the case." [WILDE, C. J. -If the goods had been hypothecated here, instead of sold, that case would have been precisely this.] It would. It is unnecessary to notice the special grounds of demurrer. The pleas are clearly bad in sub

stance.

Channell, Serjt. (with whom was Rew), contrà.-The decision in Duncan v. Benson does not affect this case to the extent that has been supposed. Since the case of The Gratitudine, it had been imagined, that, where a bonâ fide necessity existed, the master, in selling the goods, acted as the agent of the owner of the goods, and not as the agent of the shipowner. What Duncan v. Benson decided was in truth this,— that, where the master, under a justifiable necessity, sells goods, or pledges or hypothecates them, he does so as the agent of the owner of the ship, and not as agent of the owner of the goods, except so far as is necessary to give title to the vendee or pawnee. No point was made there as to whether the case was one of general average. It must be conceded that the shipper is entitled to claim the value of the goods at the port of delivery: that seems to be settled by Richardson v. Nourse, 3 B. & Ald. 237 (E. C. L. R. vol. 5). But the sale having taken place under circumstances of urgent necessity, and for the benefit of all parties concerned, it is properly a subject of general average. The principle on which general average rests is thus laid down in Abbott on *Shipping: (a) We have seen, in a former part of this work, *597] that a master may, under certain circumstances, borrow money on the security of his ship, or of its cargo; and that, if his vessel be disabled by the perils of the sea, from carrying her cargo to its destination, he may, if he think proper, hire another vessel for that purpose. But, supposing him to be unable to raise money on bottomry, or by hypothecation of the cargo, and that no other vessel can be obtained, he is at liberty to sell part of the goods intrusted to him, to enable him, by repairing his ship, to carry the remainder to their destination. Goods thus sacrificed for the benefit of the owners of the rest of the cargo, seem to have been considered by Lord STOWELL, in the case of The Gratitudine, and have been considered in other cases, to be the

(a) 8th edit. p. 498.

proper subject of a general average. (a) The motive of the sale, in the case supposed, is no other than the motive for jettison. It is the same thing to the merchant whose goods are taken from his control, whether they are sold or thrown into the sea. In either case, it is a sacrifice submitted to by him for the benefit of all, and which ought therefore to be made good by general contribution." The law is similarly laid down in 2 Arnould on Insurance, p. 891, where it is said, that "when such a sale is clearly made out to have been for the general benefit, it entitles the owner of the goods so sold to claim a general average contribution in respect of the loss he has sustained by the transaction, just as though the goods had been jettisoned."(6) The like is stated in Benecke's Principles of Indemnity, p. 271. That the master is justified in selling a portion of the cargo for the repairs of the ship in a foreign port, in case of urgent necessity, is *conceded in Campbell v. Thompson, [*598 1 Stark. N. P. C. 490 (E. C. L. R. vol. 2). In Plummer v. Wildman, 3 M. & Selw. 482, where a ship, in the course of her voyage, was run foul of by another ship, and damaged, and the captain was in consequence obliged to cut away part of the rigging, and to return to port to repair the damage and cutting away, without which the ship could not have prosecuted her voyage, or safely kept the sea,-It was held, that the expenses of repairs, so far as they were absolutely necessary to enable the ship to prosecute the voyage, but no further, and of unloading the goods for the purpose of making the repairs, were a general average. And Lord ELLENBOROUGH said: "If the return to port was necessary for the general safety of the whole concern, it seems that the expenses unavoidably incurred by such necessity may be considered as the subject of general average. It is not so much a question whether the first cause of the damage was owing to this or that accident, to the violence of the elements, or the collision of another ship, as whether the effect produced was such as to incapacitate the ship, without endangering the whole concern, from further prosecuting her voyage, unless she returned to port and removed the impediment.' That doctrine is certainly somewhat modified by the subsequent case of Power v. Whitmore, 4 M. & Selw. 141. A sale under circumstances like those in this case was held, in the case of La Constancia, 2 W. Rob. Adm. Rep. 487, to constitute general average. In the case of The Packet, 3 Mason's Rep. (American), 255, it was held, that, if the property of a shipper be taken and sold for the ship's necessities, and to enable her to perform the voyage, the party has a right of contribution over against the other shippers, and his remedy is not confined to the shipowner. Mr. Justice STORY, in an *elaborate judgment delivered in that case, says: "In the case of a sale of part of

[*599

(a) Citing Hobson v. Wilson, 3 Campb. 480, Richardson v. Nourse, 3 B. & Ald. 237 (E. C. L. R. vol. 5).

(b) Kent's Comm. Vol. iii. p. 342 (b), edit. 1844.

the cargo by the master for the necessities of the ship, the sale is in the nature of a compulsive loan for the benefit of all concerned, and to enable the ship to prosecute her voyage. It bears a considerable resemblance to the case of a jettison; for the owner is deprived of his property for the common good; and to him it must be immaterial whether the loss be by a sacrifice at sea or on shore. In the case of The Gratitudine, 3 Rob. Adm. Cas. 260, Lord STOWELL manifestly treated it as a case of contribution. His language is, All must finally contribute in the case of an actual sale of a part;' and then, adverting to the case of bottomry of the whole, which he considered as equivalent to a sale of a part, he added, All contribute in this, as a portion of the whole value of the cargo is abraded for the general benefit, probably with less inconvenience to the parties than if any one person's whole adventure of goods had been sacrificed by a disadvantageous sale in the first instance.' This opinion is again intimated in The Hoffnung, 6 Rob. Adm. Cas. 383, although the facts of that case did not require its application. The same doctrine is supported by Emerigon, (a) who expressly holds that the owner of the goods sold has a right of contribution against the owners of the goods saved, whatever may, in the event of a successful voyage, be the ultimate right of recovery over against the owner of the ship. There is also no inconsiderable weight of authority in its favour from other maritime sources."(b) That the sale here was not for the exclusive benefit of the shipowners, is clear from the statement that there were no other means of carrying the residue of the cargo to its destination.

*600]
Sir F. Kelly was heard in reply.

WILDE, C. J.-The question presented for our decision in this case is undoubtedly one of considerable importance in its consequences, though it may be doubted whether it be one of much difficulty. The plaintiffs, who had shipped certain copper ore on board the defendants' vessel at Adelaide, to be conveyed to Swansea, bring this action to recover damages for the sale of a portion of the ore at Adelaide, claiming what it would have fetched at the port of delivery-Swansea. The defendants, in their pleas, set out in detail the circumstances under which the sale took place, and, admitting the plaintiffs' right to the proceeds at the port of sale, insist that the rest is in the nature of general average. The pleas, in substance, state that, after the vessel, with the cargo in question, and other goods on board belonging to other persons, had sailed from Adelaide, she encountered a storm and sustained damage, and it became necessary for the preservation of the ship and cargo, and to enable her to complete the voyage, that she should put back for repair; that she accordingly did put back, and was repaired

(a) Emerigon on Maritime Laws, ch. iv. 2 9, ch. xii. 2 4.

(b) Stevens on Average, pp. 19, 24, 28, 29; Weskett, General Averages, pp. 252, 256, 259, art. 16; Consolato del Mare, ch. 104, 105; Abbott on Shipping, Part. III. ch. viii. §§ 5, 8.

for the common benefit and advantage of the owners of the ship and cargo; that the costs of the repairs exceeded the value of the ship when repaired, and ought not and would not have been incurred if the cargo could otherwise have been conveyed to the port of delivery; that the master, being unable otherwise to raise money to pay for the repairs, necessarily sold a portion of the copper, in order to enable him to do the repairs, and convey the remainder to Swansea; that the ship sailed, and the residue of the ore was duly delivered at *Swansea ; that [*601 the loss on the sale,-the difference between the proceeds of the sale at Adelaide and the value of the ore to plaintiffs if it had been conveyed to the port of delivery,-exceeded the value of the ship when repaired, and was incurred for the common benefit and advantage of the owners of ship and cargo; and that the loss so incurred was by the usage and custom of merchants the subject of a general average contribution between and amongst all parties interested in the ship, freight, and cargo, and in the completion of the voyage; and that the defendants were not liable to contribute to the loss beyond the amount of the proceeds of the sale, and the amount of general average payable by them in respect of their interest in the ship and freight. It is in respect only of the incapacity of the particular ship to carry the goods forward to their destination, that the pleas show that the cargo was in danger of being wholly lost. It is difficult to see how the repair of the ship could be for the benefit and advantage of the plaintiffs. The plaintiffs' goods were of a description not to be deteriorated to any great extent. The pleas allege that the cargo could not be conveyed to its port of delivery by any other ship: but it appears both from the declaration and the pleas, that the cargo consisted of other goods besides those of the plaintiffs; and there is no allegation that the plaintiffs' goods might not have been forwarded by another ship, or that they were in any immediate peril. This, therefore, is the case of ordinary sea damage, which the shipowner must repair at his own expense. The claim for general average arises where a part of a shipper's goods is sold or destroyed for the purpose of relieving the rest from some impending peril. For instance, in the case of goods thrown overboard to lighten a ship in distress. So, the cutting away a mast, or otherwise damaging the ship, in order to enable her to escape the danger. In those [*602 cases, the loss or damage being incurred for the purpose of insuring the safety of the rest of the cargo, or preventing the ship from going to the bottom, it is but reasonable that the expense should be sustained by those for whose benefit it is incurred, in proportion to their several interests. But how is that analogous to this case? The passage cited from Abbott on Shipping, 8th edit. p. 478, is, I think, adverse to the claim of the plaintiffs. Not only," says Lord TENTERDEN, "may the loss of goods become the subject of general contribution, but also, in some cases, the expense incurred in relation to them.

Thus, where a ship went into port in distress, and wanting repairs, it became necessary to take out the cargo; and, there being no warehouses at hand, it was put on board other vessels: Lord STOWELL said, that, as the unloading of the goods was for the common benefit of all, it being necessary to unload the ship for the preservation of the cargo, as well as for its own repair, the expense incurred by it must be considered as general average." The cases the learned author cites for this position, are, The Copenhagen, 1 Rob. Adm. Rep. 289, Da Costa v. Newnham, 2 T. R. 407, and The Gratitudine, 3 Rob. Adm. Rep. 257. On referring to Da Costa v. Newnham, I find it laid down, that, where a ship is obliged to put into port for the benefit of the whole concern, the charges of loading and unloading the cargo and taking care of it, and the wages and provisions of the workmen hired for the repairs, become general average. But it has since been determined otherwise. The learned author then goes on,-" Thus, if it be necessary to unlade the goods, in order to repair the damage done to a ship by tempest, or by collision with another vessel, so as to enable her *to prosecute *603] and complete her voyage, it has been held that the expense of unloading, warehousing, and reshipping the goods should be sustained by general contribution, because all persons are interested in the execution of the measures necessary to the completion of the voyage.' The reason there assigned might be applicable to the case the author had in his mind,-Plummer v. Wildman, 3 M. & Selw. 482; but, as a general proposition, it is too large; it would throw upon the shipper much of the expense which properly belongs to the shipowner. In that case, there were undoubtedly some expressions of Lord ELLENBOROUGH which would seem to justify the passage: but, in the subsequent case of Power v. Whitmore, 4 M. & Selw. 141, his lordship explains that that decision proceeded upon the ground that the master "was compelled to cut away his rigging in order to preserve the ship, and afterwards put into port to repair that which he sacrificed." The expressions, therefore, in Plummer v. Wildman are repudiated and explained away. The result of these cases is thus summed up in Abbott on Shipping, p. 497,-"It seems to result from these decisions, that, if a vessel goes into port in consequence of an injury which is itself the subject of general average, such repairs as are absolutely necessary to enable her to prosecute her voyage, and the necessary expenses of port charges, wages, and provisions during the stay, are to be considered as general average; but, if the damage was incurred by the mere violence of the wind and weather, without sacrifice on the part of the owners for the benefit of all concerned, it falls, with the expenses consequent upon it, within the contract of the shipowner, to keep his vessel tight, staunch, and strong,' during the voyage for which she is hired." In the follow ing page we find this passage,- We have seen *in a former part of this work, that a master may, under certain circumstances,

*604]