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 7
 
 -j- '<LJo\^g » 
 
 MARITIME LEGISLATION
 
 rRIXTED BY 
 
 srornswooDE and co., new-street square 
 
 LONDUS
 
 PAPEES 
 
 ON 
 
 MARITIME LEGISLATION 
 
 WITH A TRANSLATION OF 
 
 THE GERMAN MERCANTILE LAWS 
 hi:latixg to makitime commerce 
 
 BY 
 
 ERNEST EMIL WENDT, D.C.L. 
 
 THIRD EDITION 
 
 LONDON 
 LONGMANS, GREEN, AND CO. 
 
 AND NEW YORK : 15 EAST 16"> STREET 
 1888
 
 \ Q Q Q 1 
 
 \888 
 
 ,V
 
 PEE FACE 
 
 TO 
 
 c* THE THIEl) EDITION. 
 
 r^ It is now seventeen years since the Second Edition of 
 °~ ' Papers on Maritime Legislation ' was pnblislied, and 
 in that time the snbjects dealt with by me have been 
 mnch discussed both in this country and in others. I 
 have been asked to record these discussions — in many 
 of which I have taken part — and their results in a 
 permanent form, and I have endeavoured to carry this 
 out in the present Third Edition of my papers. 
 
 In particular I have to the best of my power de- 
 scribed the history of the General Average movement 
 which preceded and has followed the issue of tlie York 
 and Antwerp Eules, and of the struggle still pending 
 with regard to the ' negligence ' and other clauses of the 
 Bill of Ladincy, 
 
 o 
 
 And, if I have ventured to express freely my own 
 opinion in these pages, my excuse must be that they are 
 at all events the result of many years' experience, as I 
 have now been nearlv thirtv years the representative in
 
 VI MArJTIME LEGISLATION. 
 
 this country of the more important maritime underwriters 
 in all parts of the world, and have been personally con- 
 versant with the subjects treated for more than half a 
 century. 
 
 With I'eference to the Appendix, I may remark that 
 not only the translation of the German General Mercan- 
 tile Law has been again very carefully revised, but that a 
 translation of such laws as by the creation of the German 
 Empire were in addition to the General Law required 
 have been added. 
 
 It now remains only for me to express j^ublicly to 
 those who have so kindly assisted me in the preparation 
 of one or the other of these three Editions my sincere 
 gratitude, and these are :— Sir Travers Twiss, D.C.L., Q.C. 
 (the last Advocate-General), Dr. Friedr. Sieveking (Presi- 
 dent of the Ilanseatic Court of Appeal at Hamburg), 
 Dr. Charles Stubbs, Mr. Fred. Stokes (the last Admi- 
 ralty Proctor), and my present partner, Mr. Wm. Arnold. 
 
 4 & () Thhogmokton Avenue ; 
 Jiihj 1888.
 
 PEEFACE 
 
 THE FIRST EDITION. 
 
 The time for the reconsideration of the most important 
 parts of our Maritime Enactments seems now so near at 
 liand, that I liave deemed it advisable to reproduce in 
 the following pages some materials which will, I trust, 
 be found useful by those who may be called upon to 
 assist in the deliberations on the questions at issue. 
 
 15 Fenchurch Buildings, London : 
 
 November 1807.
 
 rJlEFACE 
 
 THE SECOND EDITION. 
 
 'J'lii': necessity having arisen for the issne of a new 
 edition of this volnnie, it appears to nie to be my duty 
 not only to express in this Preface my grateful acknow- 
 ledgment of the favour with which the first edition has 
 been received, but likewise to add, with respect to the 
 subject-matter therein treated, a few remarks necessi- 
 tated either by actual or attempted subsequent legis- 
 lation. 
 
 But before I do so, I may be permitted for a moment 
 to refer to certain critical observations which came to 
 my notice soon after the publication of the first edition, 
 and which characterised my work as an exposition of 
 German views. I am, however, although a native of 
 Germany, a British subject, and have been a resident in 
 this country for more than twenty years, during which 
 not only a close observance of everything relating to 
 maritime commerce, but a careful study of our laws 
 and customs, has been my constant duty. 
 
 So that, although the introduction of steam power 
 aiid telegraphic communication has more than previously 
 cemented all the nations of the world into one and the
 
 X MARITIME LEGISLATION. 
 
 same great Trading Community, and therefore in tlie im- 
 provement of our laws not only British sul)jects, but the 
 citizens of all other nations have a very material interest, 
 my observations on them were never intended to be 
 merely foreign views, which, if disagreeable to a very 
 influential body of men, could readily be shelved, but the 
 suggestions of a British subject, who has been for more 
 than thirty years practically engaged in the consideration 
 of matters of International and General Maritime Law, to 
 an extent which falls to the lot of only few. This will 
 readily be believed l)y those who are aware that I have 
 been for years, and am now, honoured with the powers of 
 attorney of more than Two hundred Marine Insurance 
 Companies and Associations in different States of Europe 
 and America, for the purpose of protecting their in- 
 terests in cases of shipwreck within the United Kingdom 
 of Great Britain and Ireland, and of conducting their 
 lawsuits within this territory. This fact should, I think, 
 give some weight to the remarks which I feel it my duty 
 to submit ; and here may I beg to remind my readers of 
 a sentence which His Eoyal Highness the late Prince 
 Consort uttered on a rather remarkal^le occasion to the 
 following effect : — 
 
 I conceive it to be the duty of every educated person 
 closely to watcli and study the time in wliicli he lives, and, 
 as far as in liini lies, to add his humble mite of individual 
 exertion to further the accomplishment of what he believes 
 Providence to have ordained. 
 
 Nobody, however, who has paid any attention to the 
 ])eculiar features of our present era, will doubt for a moment 
 tli;it \v.> art- livinf;^ a1 a ])('riod of most woudcifiil transition, 
 whicli Irnds r;i|Mdly to acfoiii|ili>li lliat ^n-cal end to which,
 
 PREFACE TO THE SECOND EDITION. XI 
 
 indeed, all history points — tlie realisation of the uidtij ofinon- 
 Ichid. 
 
 Not a unity which breaks down the limits and levels the 
 peculiar characteristics of the different nations of the earth, 
 but rather a unity, the result and iirodud of those very 
 national varieties and antagonistic qualities. 
 
 The alterations I have made in this edition are but 
 few ; the principal are the different order in which the 
 contents appear, and, in consequence of a suggestion for 
 which I feel very grateful, the reprint of the clauses of 
 the Acts upon which my observations were intended to 
 bear. 
 
 I trust that the class of readers for whom this second 
 edition is more particularly intended will fmd this more 
 systematical form an improvement, and that the same 
 may be said for the addition made in reprinting the 
 clauses of the different Acts. 
 
 Let me now review, as concisely as possible, the dif- 
 ferent subjects in their present order. 
 
 I am sorry to be obliged to record that, in spite of 
 the repeated attempts made by the Associated Chambers 
 of Commerce to prevail upon the Board of Trade to 
 make the International General Average Eules, as 
 adopted at the Congress of Delegates at York, in Sep- 
 tember 1864, a subject of imperial legislation, nothing 
 has been done. 
 
 Why not, may appear a mystery to those who re- 
 member that at the request of the Liverpool Chamber 
 of Commerce the Foreign Office issued instructions to 
 their principal consular officers abroad, for the purpose
 
 Xll MARITIME LEGISLATION. 
 
 of urging wpon the authorities where they were accre- 
 dited the desirability of sending delegates to the York 
 Congress, expressing at the same time the deep interest 
 Her Majesty's Government felt in the result of the deli- 
 berations. Such result may have been unexpected, but 
 it was to be hoped that the interest of the Government 
 might survive the disclosure that some of our peculi- 
 arities were almost universally condemned. 
 
 II. 
 
 That under such circumstances the International Law 
 of Affreightment, as adopted at a Congress held at Shef- 
 field in 1865, which is of equal importance to the mer- 
 cantile community generally, has not been brought by the 
 Board of Trade before any branch of the Legislature, 
 cannot surprise. 
 
 m. 
 
 It has often been remarked that if the late Lord 
 Kingsdown had been sitting, such an infringement of 
 International Law as the Judicial Committee of Her 
 Majesty's Privy Council committed in the decision of 
 the 'Marie de Brabant' could never have occurred; 
 but it is more remarkable still that, notwithstanding the 
 conclusions whicli I submitted in this correspondence, 
 the Law Officei's of the Crown should not have insisted 
 (jii recommending the erasure of tliis l)lot from our 
 Statute-book; or, is the iii(Iiienc(' of llic large Steamboat 
 Companies so gj-cal that tlicy can witli tlicii- power so 
 easilv dety Ihf dj'tn- nnd iiicontrorirlihli' right?
 
 niEFACE TO Till': SECOND EDITION. xiii 
 
 IV. 
 
 The Board of Trade not having considered it advisable 
 to lay before Parliament my observations on the Acts 
 here referred to, it will not occasion surprise that I have 
 here reprinted them ; especially when the different Bills 
 laid before the House of Commons since have proved that 
 the Board of Trade only approved my suggestion respect- 
 ing the abolition of compulsory Pilotage, and left many 
 other subjects with which I had dealt — not merely from 
 the underwriters' point of view, but in an entirely bond 
 jide spirit — altogether out of consideration. 
 
 That the Merchant Shipping Bill and the Merchant 
 Shipping Code of 1870 and 1871, Mr. Farrer's two Me- 
 moranda on them, Sir William Mitchell's Eeview, Mr. 
 H. C. Chapman's brief Eeview, the Eeport published by the 
 Liverpool Chamber of Commerce, as w^ell as Mr. Augustus 
 Smith's notes, have had my serious attention, will readily 
 be believed ; and I may be permitted to say, that from all 
 I have seen and heard, I am confirmed in the conviction 
 that if Her Majesty's Government is really desirous of 
 improving Maritime Legislation, so as to command not 
 only the respect but the adhesion of tlie great Trading 
 Cojnmunity of the ivhole World, this can only be accom- 
 plished by appointing a Royal Commission to inquire into 
 and report on the state of and the desired improvements 
 in the whole of our Maritime Law, as well as to specify 
 the subjects which ought to be more or less brought into 
 harmony with the laws and customs of the other principal 
 nations. 
 
 The task of such a Eoyal Commission will not be an
 
 xvi MARITIME LEGISLATION. 
 
 U) furtlier discussion. Altliough, undoubtedly, some 
 matters connected with the working of the Admiralty 
 Court are open to improvement — and here I may refer to 
 the very able letter which my friend, Mr. W. T. Pritchard, 
 addressed to the Judge of the Court at the commencement 
 of 1868, and which appeared in print — I am rather in- 
 clined to think that if the complaints of the memorialists 
 are carefully sifted, it will be found that they might with 
 equal or even greater justice be brought against any other 
 Court in the United Kingdom. 
 
 The ' County Courts Admiralty Jurisdiction Act, 1868 ' 
 (31 & 32 Vict. c. 71), the County Courts Admiralty 
 Jurisdiction Amendment Act, 1869 (32 & 33 Vict. c. 51), 
 and the Liverpool Admiralty District Eegistrars' Act, 
 1870 (33 & 34 Vict. c. 45), have, I am sorry to state, not 
 been able to give that satisfaction — if any — wliich the 
 general public anticipated, because there are few County 
 Court Judges who can readily comprehend the subject- 
 matters brought before them under these Acts, and if they 
 can, their time is so fully occupied with the multifarious 
 duties devolving upon them in the different towns of their 
 district that one of the principal objects to be attained, 
 viz. a quick despatch, is out of question altogether ; and 
 finally, the expenses are beyond everything anticipated. 
 
 The very fact that, since the hrst of these County 
 Court Acts became law, every session has produced an 
 Amendment or additional Act, has in itself been sufficient 
 to ])rf'Vf'iit tlio Judges, Registrars, &c., of these Courts 
 IVoiii l)('<'()iiiiiig coiiversaut witli tlicii- dulics, and it will 
 liardly Ix' believed lliat, in sj)ite ot" .'ill tliis j)i(H-euu'al 
 legislation, the cardinal necessity lias hccn overlooked ol" 
 )iiakin<f 1 lie ('omls afcessiMc fo the owiici's of" pi-opcrU'
 
 PnEFACK TO THE SECOND EDITION. XVll 
 
 salved as well as to the salvors, as was the case under the 
 460th section of the Merchant Shipping Act. 
 
 That under these circumstances attempts should have 
 been made still further to extend the Admiralty Juris- 
 diction of the County Courts, and to establish Admiralty 
 Eegistries with the same official duties as the Eegistry 
 of the High Court, has taken me and many others by 
 surprise. 
 
 Wliat the general public really want are Admiralty 
 Courts sitting, as in olden times, de die in diem {ov from 
 tide to tide, as expressed elsewhere), so that the hearing 
 and determining of any cause can be proceeded with as 
 soon as both parties have been able to collect their 
 evidence, and to comply with such simple forms as are 
 absolutely necessary in order to obtain complete justice ; 
 because it ought not to be overlooked that at present 
 the preparatory proceedings for the hearing and deter- 
 mination of any cause require several weeks, unless 
 both parties are equally anxious to push matters for- 
 ward, and only too often delay is one of the weapons 
 made use of for purposes of extortion. I imagine it 
 would be considerably more conducive to the general 
 interest, if, bearing in mind the suggestion as to the 
 improvement in the despatch of the Admiralty business, 
 in lieu of the County Courts with Admiralty jurisdic- 
 tion, a certain number of Vice-Admiralty Courts, say 
 at Liverpool, Cardiff, Falmouth, Deal, Great Yarmouth, 
 Hull, and Newcastle-on-Tyne, were established for the 
 purpose of exercising a jurisdiction identical with that 
 of the High Court, for all cases which arise within a 
 certain district attached to each of such Vice-Admiralty 
 Courts ; further, for all cases where plaintiff and de- 
 
 a. 2
 
 xviii MARITIME LEGISLATION. 
 
 feiiclant are resident within such district ; and, finally, 
 for all cases where plaintiff and defendant (non-residents) 
 agree to such jurisdiction. The territorial limits to be 
 fixed with regard to the peculiar Admiralty business 
 which is principally expected at the particular Court,' 
 and which can easily be defined. The Appeal to go, 
 as from the Colonial Yice-Admiralty Courts, direct to the 
 Judicial Committee of Her Majesty's Privy Council. 
 
 I have no doubt that a carefully compiled return 
 would prove that most of such Yice-Admiralty Courts, 
 if not all, would be self-supporting. 
 
 Yl} 
 
 My observations under this head as well as under 
 
 YII.2 
 
 will, 1 trust, not be found out of place. 
 
 YIII. 
 
 My conviction, that in the interest of bo)id fide trade 
 the addition there proposed to the International Criminal 
 Law would be of immense advantage, renuiins unaltered. 
 
 IX. 
 
 I readily acknowledge that the subject here treated — 
 depositions to be taken before the Eeceivers of Wreck 
 h;i> li;id tli<' f i\'oiir,'il)l(' coiisidcrntion of the T^oard of 
 
 ' Tlii.s Koction was entitled: ' ObRorvations oji tlic oHire of .7ii(l;,'c in the 
 Admiralty, Divorce, and l'rol)atc Courts Bill, dated Jiuio 1!), l.S(i7.' 
 
 ''■ 'I'liis Kection waH entitled: ' IJarristors' Petition af,'aiiist Extension df 
 Adiiiir!i,lt V .lurisiliction, and rcni;irl<s llicrcim.'
 
 rUEFAC]-: TO THE SECOND EDITICN. xix 
 
 Trade. 8till, however, they have not been made, as I 
 tliink tliey sliould be, compulsory. 
 
 The major part of the subjects herein enumerated 
 remain yet open questions ; a remark which hkewise 
 apphes to 
 
 XI.i 
 
 and the Memorials alluded to uiider these heads. 
 
 In conclusion, I cannot but express the unfeigned 
 gratification with which I have seen my translation of 
 the German General Mercantile Law referred to and 
 relied upon in the course of the important and interesting 
 litigation which has not unnaturally resulted irom the 
 recent hostilities on the Continent. For the present 
 edition this translation has been carefully revised, and 
 some accidental— but happily unimportant — inaccuracies 
 have been removed, and I sincerely trust that it may 
 continue to be found worthy of attention in the course of 
 further litigation as well as of future legislation. 
 
 ^ The letters here referred to m both Sections X. and XL appear m this 
 Third Edition, S2ib X. 
 
 15 Fenchurch Buildings, London : 
 September 1871.
 
 CONTENTS. 
 
 I'AGK 
 
 INTRODUCTION xxiii 
 
 I. 
 
 International Law of General Average 1 
 
 II. 
 
 International Law of Affreightment in connection with the 
 
 ATTEMPTS to AGREE UPON UNIFORMITY IN THE WORDING OF BiLLS 
 
 OF Lading 295 
 
 III. 
 
 Correspondence with the Board of Trade relating to the in- 
 fringement OF the International Law by the Judicial 
 Committee of H.M. Privy Council in the decision of the 
 ' Marie de Brabant ' 513 
 
 IV. 
 
 Observations, dated December 1886, on 17 and 18 Vict. Cf^p. 104 (The 
 Merchant Shipping Act, 1854) ; 17 and 18 Vict. cap. 120 (The Mer- 
 chant Shipping Kepeal Act, 1854) ; 18 & 19 Vict. cap. 91 (The 
 Merchant Shipping Act iUnendnient Act, 1855) ; 25 & 26 Vict. 
 cap. 63 (The Merchant Shipping Act Amendment Act, 1862) . . 527 
 
 V. 
 
 Admiralty Jurisdiction of County Courts 621 
 
 VL 
 
 Suggestions foe the Improvement of Admiralty Practice . , 624 
 
 VII. 
 
 Freight, when ship abandoned at sea ...... 627
 
 XXll MARITIME LEGISLATION. 
 
 VIII. 
 
 Eeasons why the making away with, or aiding and abetting in 
 scuttling or otherwise destroying a vessel for the purpose 
 of defrauding its underwriters, or those who have an inte- 
 rest therein, or in the cargo or freight, should, by agree- 
 ment between the principal maritime nations, be declared 
 an act of piracy 080 
 
 IX. 
 
 Merchant Ships' Logs, Protests and Depositions before Receivers 655 
 
 X. 
 
 Various papers showing how most of these subjects have been 
 
 URGED upon the Board OF Trade G70 
 
 XI. 
 
 Appellate Jurisdiction in Maritime Causes GBl 
 
 APPENDIX. 
 
 Translation of the German Mercantile Law relating to Maritime 
 
 Commerce, and of — 087 
 
 1. Regulation for seamen of December 27, 1872 .... 790 
 
 2. Law respecting the obligation of German merchant vessels to 
 
 take home distressed seamen of December 27, 1872 . . 811 
 
 3. Annex A to the above, viz. : Law respecting the nationality of 
 
 merchant vessels, and their right to caiTy the flag of the 
 Confederation, of October 25, 1867 813 
 
 4. Law relating to registration and designation of merchant 
 
 vessels of Jime 28, 1873 817 
 
 5. I^aw respecting coast trading voyages of May 22, 1881 . . 817 
 INDEX . 819
 
 INTEODUCTION. 
 
 It ought never to be overlooked, that there is as much a 
 law of the sea as there is a law of the land, and that, just 
 as the Courts of Common Law and Equity have been 
 established for the purpose of deciding differences arising 
 within the territorial limits of the realm, the Court of 
 Admiralty was, at a period beyond legal memory, 
 established especially to take cognisance of all maritime 
 contracts or torts, and all injuries or offences committed 
 upon the high seas, in ports and havens, as far as the ebb 
 and flow of the tide, in great rivers, beneath the first 
 bridges thereof, and in all foreign parts, and based its 
 decisions, as did the other European Admiralty Courts, on 
 the Law Maritime and on the Eoman Civil Law. 
 
 But attention should be paid to another difference 
 between the Admiralt}^ and the Municipal Courts, namely, 
 that whereas in the latter, matters of fact are to be 
 decided by a jury, the Judge of the former, assisted by 
 nautical assessors, decides alike matters of fact and 
 questions of law. 
 
 The consequence is, that the decisions in the Admi- 
 ralty Court — in spite of the great expenses, and some 
 other evils, which, however, may be easily rectified — liave 
 been much more approved b}' the mercantile communities 
 here and abroad, than the decisions in the Common Law
 
 XXIV MARITLAJE LEGISLATION. 
 
 Courts, where juries are frequeutly called upon to pro- 
 nounce an opinion upon intricate commercial matters 
 which they are incomj^etent to comprehend, and some- 
 times return verdicts utterly at variance with common 
 sense. 
 
 Our Xorth American cousins have, in their wisdom, 
 left the Admiralty jurisdiction entirely intact as they 
 received it from the British Crown, and anybody aiming at 
 a Judgeship in their Courts clothed with Admiralty jurisdic- 
 tion has to pass through a course of study of the Civil 
 Law, which very few members of the English Bar have 
 thought it necessary to master. 
 
 The great importance of this point ought not to be 
 lost sight of, as in case, by certain positive enactments, 
 the Judgeship in the Admiralty Court, and a seat in the 
 Appeal Court, should not be reserved for learned civilians, 
 it is difficult to see, not only how these Courts can be 
 efficiently administered, but where the Foreign Office 
 and the Lords of the Admiralty, as well as the general 
 public, are in future to choose their advisers in matters 
 of international and general Maritime Law, wdiom, for 
 centuries, they have been accustomed to look for amongst 
 the civilians. 
 
 I ought here to mention that, according to an official 
 memorandum recently circulated, the present jurisdiction 
 of the High Court of Admiralty of England embraces the 
 following subjects : — 
 
 (Partly under old law, partly under recent statutes, 
 o & 4 Vict. c. Go, and 24 Vict. 10.) 
 
 A. Colliiiioii. iiiclu(.liiig ;ill tlaiiiaf,^' duiic 1)V ;i bliip. 
 Jl. Towjigi'.
 
 INTHODUCllOX. .\XV 
 
 C. V\\o\n<rr. 
 
 IK Salva^, iucliidin^ Lite Salvage. 
 
 A'. Wages, 
 
 7*'. Bottorarv and l{es[)()ii(leutia Jk)iids. 
 
 ^r. Master's accounti;^. 
 
 //. Personal actions for damage between crew or ])assenger.s and 
 owners. 
 
 r. Mortgages of siiijis. 
 
 ./. Transfers of ships. 
 
 K. Right to possession of ships. 
 
 L. Questions between co-owners of ships, 
 
 M. Damage to, or detention of, imported cargo, where owner is 
 not domiciled in England. 
 
 N. Necessaries when 0"vsTier is not domiciled in England. 
 
 V. Building, equipping, or repairing a ship when under arrest. 
 
 P. Settlement of liability for personal and other injury in case of 
 several claims against ship, and distribution of amount found 
 due when ship is under ari-est, Part IX., Merchant Shipping 
 Act, s. 514, extended by 2i Vict. c. 10, s. 13. 
 
 Q. In addition, the Court has found it absolutely necessary to deal 
 with other questions, such as freight and average, when 
 those questions have arisen with respect to property in the 
 hands of the Court (see 2 Moore's ' Privy Council Cases,' New 
 Series, pp. 215, 235, 240 ; Place v. Potts, 5 ' House of Lords,' 
 383), 
 
 and that it has been propoyed to add the folluwino' subjects, 
 viz. : — 
 
 A, Freight, and ([utstions arising between Shipowner and Merchant 
 
 on Charter-parties and Bills of Lading. 
 yi. Demurrage. 
 
 C. Average. 
 
 D. Damage to, or detention of, cargo, when owner is domiciled in 
 
 England, and under Charter-party. 
 
 E. Necessaries, when owner is domiciled in England. 
 
 J^'. Building, e(|nipping, or re]iairing a ship when nut under 
 arrest.
 
 XXVI MAPJTIME LEGISIATION. 
 
 G. Insurance. 
 
 //. In addition, there will be, no doubt, other matters arising out 
 
 of, and incident to, the relations between Shipowner, Master, 
 
 Merchant, and Underwriter. 
 
 With respect to the movement to obtain for County 
 and other local Courts an Admiralty jurisdiction, it appears 
 to me that the discussions which have taken place in and 
 out of Parliament, so far as I have been able to follow 
 them, have left entirely untouched the consideration of the 
 following question : — 
 
 How a Court at Liverpool, for instance, or any other 
 local Court, or any Admiralty Court but the High Court 
 sitting at Westminster, can be expected to satisfy the re- 
 quirements of any other than the local merchant or ship- 
 owner ? 
 
 But before proceeding w4th my argument, I may state 
 that there is, in my opinion, a very great difference of 
 principle involved in the question, whether the anxiety 
 which the merchants of some towns have evinced for a 
 local Admiralty jurisdiction solely aims at Courts for the 
 purpose of settling differences between merchants and 
 others, where both plaintiff and defendant are residing 
 in the same town, or, as generally has been assumed, at 
 Courts where a non-resident plaintiff having a difference 
 with a resident defendant, should be obliged to sue. 
 
 Now it is evident that to the former case alone the 
 commonplace phrase of bringing justice to everybodj^'s 
 door can properly be applied ; for neither a merchant of 
 Newcastle, noi' of Loiido]), nor of Hull, iioi- of Ih'istol, 
 would cousidci- it a sound applicalioii of tliis principle, if 
 he wf](* for(;e(l 1(» ])iiisii(' any claim he niiglil have, not in 
 llic lowii wlicrc he ic^i(h'S. iioi' in llic iiicl ropolis where all
 
 INTRODUCTION. xxvii 
 
 tlie other Courts of Englisli judicature are efficiently 
 conducted, and where, consequently, the whole forensic 
 machinery of barristers, solicitors, and proctors is in 
 perfect working order ; but in Liverpool, for instance, 
 where a non-resident plaintiff would have to encounter, as 
 a stranger, difficulties at present entirely unknown to him. 
 
 The High Court of Admiralty, as a central tribunal, 
 having so many cases of every description brought before 
 it, has acquired great aptitude for the transaction of 
 business, which must be impaired if that business be 
 curtailed by the establishment in Liverpool and other 
 towns of Admiralty Courts, with an identical jurisdiction 
 to the High Court. 
 
 The late Lord Justice Knight-Bruce once said in an 
 
 appeal before Privy Council, in which foreign merchants 
 
 were interested, ' 2^6 ought not to forget that there are other 
 
 people in the icorld besides ourselves,' and these other people 
 
 have quite as much interest that cheap and speedy justice 
 
 should be done in our Admiralty Courts as we ourselves 
 
 have. No Liverpool merchant who is to be sued by a 
 
 London merchant, or vice versa, can really maintain that 
 
 there is a difference in the expenses of the suit, whether 
 
 one of the parties with all his witnesses travels from 
 
 London to Liverpool, or the oilier from Liverpool to 
 
 London ; and if the assertion, that Liverpool contributes 
 
 in the number of cases coming before the Admiralty 
 
 Court very little less than London, be correct, does that 
 
 not show that very serious inconvenience and pecuniary 
 
 loss would be inflicted upon a comparatively large number 
 
 of merchants not resident in Liverpool, if they were to be 
 
 forced to apply to a new^ and untried Court elsewhere ? 
 
 As I pointed out above, if as a general rule all })ai'ties
 
 XXVIU MAlilTIME LEGISLATIOxV. 
 
 to an Admiralty suit were resident in one and the same 
 place, the desire for local Courts could not only be under- 
 stood but would be highly appreciated ; but as in the 
 majority of cases which come before the High Court of 
 Admiralty, the parties are either resident in or have 
 more easy access to London, and their representatives 
 reside for the most part in London, it is in my mind 
 beyond a doul)t that the result of the proposed inno- 
 vation would be highly prejudicial to very important 
 interests. 
 
 The proposed dispersion of the Admiralty business is 
 also calculated to impair the efficiency of the prac- 
 titioners. There are at present many more well-qualified 
 practitioners who could be spared from, the other 
 branches of the law with safety to their clients than 
 from the Admiralty Court, which has hardly recovered 
 from the retirement of the great body of proctors. The 
 few 2:)roctors and solicitors who habitually practice in it 
 would have little encouragement to continue their staff 
 of clerks, &c., if the present business of the High Court 
 of Admiralty were to be dispersed amongst several local 
 Courts. 
 
 I know tliat my excuse for venturing to touch upon 
 these subjects can only be their vast importance to those 
 enormous interests which could not but suffer if what 
 appears to l^e the favoured scheme of some influential 
 UK in1)('is of our Bar was really carried out. 
 
 licforc coiicliidiug, I ought to o])serv(' that the reason 
 lor riiv adding ii translation of the Micmiaii Mnritinie 
 Law,' as an Ai)peiidix to these Papers, is sim[)ly tliat the 
 great care and reseni'di dis[)lay('d in (lie frnming of its 
 dillrrcnl chiiises cntillc it (o cxcrNconsidciation on the
 
 INTRODUCTION. xxix 
 
 part of those who may be engaged in the preparation of a 
 simihir compihition for this country. 
 
 Nothing can be a better proof of the correctness of 
 the assertion than the fact that, after the members of the 
 late Germanic Confederation had decided in 1856 to con- 
 voke a meeting of delegates for tlie purpose of agreeing 
 upon one general mercantile laic for the whole of their 
 territory, the Prussian Government appointed three com- 
 mittees of merchants, one in Stettin, one in Danzig, and 
 one in Koenigsberg, in order to investigate and collect the 
 most desirable body of maritime law ; and when the German 
 commissioners met at Hamburg on April 26, 1858, their 
 Prussian colleagues were enabled to lay before them a well- 
 considered draft of a Common Maritime Law, together 
 with carefully compiled reasons for the same. 
 
 The results of the deliberations of the commissioners, 
 who were assisted by delegates from the most important 
 mercantile communities of Germany, renowned for their 
 practical knowledge of those matters, were referred to the 
 different Governments for perusal, and after they had in- 
 structed their commissioners as to the different views they 
 took of the draft, the commissioners met again and again 
 for the revision and super-revision of it, and finally on 
 March 1, 1862, the Government of Prussia set the example 
 of adopting the revised draft as its public law in maritime 
 matters. 
 
 Tliat law has subsequently come into operation 
 throughout the whole of Germany, and I cannot deny 
 myself the satisfaction of here observing that the minutes 
 or protocols of the deliberations of these commissioners, 
 which have been fully puloHslied, afford tlie most interest- 
 ing study on all questions of Maritime Law.
 
 I. 
 
 INTERNATIONAL LAW OF GENERAL 
 AVERAGE. 
 
 Although tlie history of tlie movement which led to a 
 very general adoption of the pi'inciples laid down for the 
 uniform recrulation of General Avera^^e bv the so-called 
 ' York and Antwerp Eules ' has been written by Mr. 
 Eichard Lowndes in the third edition of his able work, 
 ' The Law of General Average (English and Foreign),' 
 1878, and by several others, it has, as far as I am aware, 
 not yet been attempted to reproduce in a collected form 
 the discussions which paved the way and ultimately led 
 to the adoption of those rules, and my object in reprint- 
 ing some of them and printing others for the first time is, 
 that future students of matters connected with this sub- 
 ject may have before them all the arguments advanced in 
 relation thereto. 
 
 The initiation of this important movement was caused 
 by the issue of the following circular to the principal 
 Chambers of Commerce and bodies of Underwriters of 
 Europe and America : — 
 
 National Association for the Promotion of Social Science. 
 3 ^Yaterloo Place, London. May 3, 1860. 
 
 Gentlemen, — The system of General Average is one vvliicl], to 
 prevent confusion and injustice, pre-eminently requires that the 
 same principles should be acknowledged amongst the chief maritime 
 nations. So far is this from being the case, however, that some of 
 the most important rules vary not only in the same country, but in 
 
 Mr
 
 2 MARITIME LEGISLATION. 
 
 the same port. Uncertainty in law is always an evil ; and, in regard 
 to General Average, the evil is peculiarly felt. The ship may be 
 owned in one country, insured in another, her cargo owned and in- 
 sured in several, and the port of destination, where the General 
 Average is made up, may be in a country which has different rules 
 to any of the others. What is considered to be Particular Average 
 on ship in one port is held to be General Average in another, so 
 that the owner of an outward-bound ship may find himself unable 
 to recover his loss either from his Underwriters at home, or as 
 General Average abroad ; or, on the other hand, he may be in a 
 position to indemnify himself fraudulently twice over. A similar 
 remark would apply to special charges on freight and on cargo. 
 A very large proportion of the most important questions rests in 
 England nominally upon the decision of that extremely vague 
 authority, ' the custom of Lloyd's,' but really depends upon the 
 idiosyncrasy of the particular adjuster who may be entrusted with 
 the papers. Hence arise many cases where apparently injustice must 
 be done to Assurer or Assured. Either the Assurer finds himself 
 saddled with a loss against which he believed himself insured, or 
 the Underwriter pays one which was not considered in the 
 premium. 
 
 Much loss is occasioned to the mercantile community and to 
 the country at large, and much valuable time is worse than wasted 
 through business being impeded by misunderstandings and irritated 
 feelings. 
 
 A still more crying evil resulting from the present uncertainty 
 of law and custom, is the opening which it leaves for every sort of 
 abuse. Attempts are daily being made to introduce charges of the 
 most outrageous description, which do not even go into the pocket 
 of the Shipowner, but which he feels himself lielpless to resist from 
 want of a law to appeal to ; and ho naturally considers himself 
 hardly ust'd should charges which ho himself has paid be refused 
 by his Underwriters, tliough these last are obliged to refuse in 
 justice to themselves and to prevent the innovation becoming a 
 precedent. 
 
 'r\\i' evils of such a state ef tilings are notorious and unquestioned, 
 tliougli it niav be doubted wli' flier ni;iiiy which are distinctly trace-
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. :j 
 
 able to it, and are tliereforo removable, are clearly realised as pro- 
 ceeding from this source, i'robably the chief reason which has 
 hitherto prevented any general movement in favour of this reform, 
 is an exaggerated estimate of the difficulties in the way of carrying 
 it out. The difficulties are no doubt considerable, but they are far 
 from being insuperable, and the importance of the end amply 
 justifies an attempt to grapple with them. 
 
 Both the Assured and the Underwriter are interested in placing 
 their mutual relations upon a footing which would effect a saving 
 of time and temper, and would secure them against the annoying 
 pecuniary loss to which they are at present exposed. It is not of 
 so much importance how the disputed points of General Average are 
 settled, as that they should be settled. Most of the questions are 
 in the end merely matters of account between one set of Under- 
 writers and another, and it would make little difference to any 
 Underwriter upon which interest it might be determined the charge 
 should fall. It is true that there are points, such as the allowance 
 of wages and provisions in a port of refuge, which would raise 
 questions between Shipowner and Underwriter, but for the sake of 
 both it is to the last degree desirable that these should not be 
 left as a bone of contention between Assurer and Assured, as 
 they are at present, c.^., when goods to America are insured in 
 England. 
 
 The evils of the present system have already caused much 
 dissatisfaction in America as well as in this country, and will 
 become more and more intolerable as the commerce of the world 
 increases, which it seems likely to do with a rapidity hitherto un- 
 exampled. The time then would seem to have come, when an 
 attempt should be made to remove this most unnecessary element 
 of irritation between Assured and Underwriter. 
 
 In the hope of coming to an understanding upon this question, 
 the Council of the National Association for the Promotion of Social 
 Science have determined that it shall be brought forward for dis- 
 cussion at their next meeting at Glasgow on Monday. September 
 24 next, and following days; and we earnestly trust that yon will 
 find it in 5-our power to send representatives of your body to that 
 meeting, as it is very desirable that delegates from tho commercial 
 
 B 2
 
 4 MARITIME LEGISLATION. 
 
 bodies in different parts of the world which are chiefly interested 
 
 should be present. 
 
 We are, Gentlemen, 
 
 Your obedient Servants, 
 
 Brougham & Vaux, President of the Council^ National Association 
 
 ^.-^ T-r ^ 1 CI > FOR THE Promotion 
 
 George W. Hastings, General Secretary, j q^ Social Science. 
 
 Duncan Dunbar, Chairman of the General Shipowners^ Society, London. 
 
 Thomas Baring, Chairman of Lloyd's, London. 
 
 William Wilson Saunders, Chairman of the Association for the 
 Protcctiun of Commercial Interests, &c., London. 
 
 W. J. Tomlinson, Chairman of tJte Chamber of Comtnerce, Liverjjool. 
 
 F. A. Clint, Deputy-Chairman of the Shipowners' Association, Liverpool. 
 
 Charles Langton, Chairman of the Underwriters' Association, Liverpool. 
 
 William M. Moss, Chairman of the Association for the Protection of 
 Commercial Interests, &c., Liverpool. 
 
 Allan Gilmore, Chairman of the Shipowners' Association, Glasgow. 
 
 William P. Paton, Chairman of the Chamber of Commerce and Manu- 
 factures, Glasgow. 
 
 Henry J. Atkinson, Chairman of the Shipiping Committee of the Hull 
 Chamber of Commerce and Shipping, 
 
 William Brown Atkinson &, Co., Managers of the Humber and Ihdl 
 Mufucd Insurance Association. 
 
 John Shute, Chairman of the Chamber of Commerce, Bristol. 
 
 Xow, before entering upon what arose out of this cir- 
 cular, it may be expedient to remind my readers that the 
 whole legislation on General Average is based upon a sen- 
 tence in the Ehodian law (91G B.C.) which runs as follows: 
 'If goods are thrown overboard to lighten a ship, that which 
 lias been given for all shall be replaced by the contribu- 
 tion of all.' 
 
 This maxim found its way into the Eoman civil law 
 (Dig. lib. 14, Tib. 2, Fr. 1), and from thence, in nearly 
 identical expressions, into the legislation of all the mari- 
 time nations of the world. 
 
 Il can, ihcfcfore, Ije scarcely a inallcr of sui-|)ris(' that 
 111 process of lime, measured by c(mi1 iiries, uianifohl con- 
 (•hi>ioiis were (h'awii IVoiii llie eiiaclmeiils so [)i'()iuulgated 
 1)\- llie p;irlies wlio were entrusted witii the a(hniHistraiion
 
 IJ^TERNATIONAL LAW OF GENERAL AVERAGE. 5 
 
 of the law of General Average in the various cases which 
 arose under diflerent jurisdictions, so that when a com- 
 parative table of the laws and principles of General Average 
 as actually administered was drawn up, a picture presented 
 itself, for which even those most interested in the matter 
 were scarcely prepai'cd. 
 
 The divergent rules which arose have been so elaborately 
 explained in Mr. Lowndes's work, above referred to, that 
 they need not be recapitulated here, but I may at once 
 refer to the proceedings of the Glasgow Congress and 
 state that, a few days before its assembling, the following 
 memorandum was issued : — 
 
 The adjustment of a General Average is governed by the laws 
 and customs of the State in which it is adjusted. The laws and 
 customs of different States vary materially, and that which is 
 General Average in one country is not General Average in another. 
 It is admitted that this is a great practical grievance, and the 
 object of this meeting is to put an end to it. 
 
 The following are the principal points on which differences 
 exist : — 
 
 1. Damage done to ship and cargo by voluntary stranding. 
 
 2. Damage done to ship and cargo in extinguishing a fire. 
 
 3. Ohafage and breakage of cargo after jettison. 
 
 4'. Damage done to cargo by discharging it at a port of refuge. 
 
 5. Cutting away the wreck of masts accidentally carried away. 
 
 C. Expenses of warehouse rent on cargo, re-shipping it, and 
 outward port charges, at a port of refuge, when the 
 original ship carries on the cargo from that port. 
 
 7. Carrying a press of sail. 
 
 8. Wages and provisions for the crew during the delay caused 
 
 by putting into port. 
 
 9. Contributing values of ship, freight, and cargo. 
 
 The opinion of the meeting ^^'ill be taken on each of tliese 
 points : — 
 
 Lst. As to the principle wliich should govern it — i.e. whether
 
 « MARITIME LEGISLATION. 
 
 the loss is, or is not, in principle, allowable in General 
 Average. 
 2ucl. As to the expediency of adopting a practical rule to 
 modify or prevent abuse of that principle. 
 
 All papers to be read at the meetings on this subject must be 
 lodged with the secret-.iry, at Glasgow, on or before Saturday, 
 September 22. The reading of no paper must occupy more than 
 fifteen minutes. 
 
 After all the papers have been read, a discussion will follow, in 
 which every one may join. The opinion of the meeting will then 
 be taken on each point, and measures will afterwards be adopted 
 to carry out in practice the conclusions arrived at. 
 
 Geo. W. Hastings, General Secretary. 
 
 Thereupon Lord Brougliam opened, on September 25, 
 18G0, tlie first meetino; bv callini,^ upon 
 
 Mr. G. "W. Hastings, the general secretary of the Association, 
 who said he thought the best Avay to open the discussion would be 
 for him to state in a few words how the movement had originated. 
 The council of the Association was applied to in the early portion 
 of the present year by several important commercial bodies, includ- 
 ing Lloyd's in London and the Underwriters' Association of Liver- 
 pool, to take up the im]3ortant question of international General 
 Average, and, through the means of this Association at its meetings 
 in Glasgow, to have a discussion on its principles, in order that 
 some uniform system might be arrived at. The council accordingly 
 issued circulars to the different commercial bodies of this country, 
 and also to many parts of America and the continent of Europe. A 
 considerable number of answers had been received to that circular 
 ;ind a lai-gc uuinbcr of foreign delegates were present prepared to 
 discuss the several questions. Li order to confiinMlu' discussion to 
 certain definite points they liad ])i'epared a short statement of nine 
 points, which, as it seemed to liini, were tlie princi]);il iioints on 
 which tlie discussion turned. And hiiving snid this much he would 
 now SMgge.'^t that .Mr. I'liili)) ]l;il hlionc. t he honoi'aiy secretai'V of 
 1 his UKM'I iiiii-. a]id \\ ho had taken ^(•|•\■ Lireat intei^'sl in t he (luesl ion.
 
 IM'iaiNATlONAL LAW OF GENKKAL AVKIIAGK. 7- 
 
 and to whom tlicy wei'c indebted ibr the discharge of many labori(jus 
 duties in connection with the subject, should read to the meeting a 
 statement of the question ; and after that the different members, 
 foreign and English, might give their opinions on the several ques- 
 tions, in the hope that some tangibk^ results might be arrived at. 
 
 Mr. p. H. Ratiiijoxe then read the following stateinent : We are 
 brought here to-day by the conviction that the differences of General 
 Average are a serious detriment to the commerce of the country, 
 entailing on those who are interested in it great pecuniary loss, and 
 that which is worse in mercantile transactions, continual disputes. 
 For instance, w^hen a ship sails from Now Orleans for Liverpool 
 with a cargo of cotton, and on her passage meets with an accident 
 which obliges her to put into a port of refuge to repair the injuries 
 she has sustained, and at that port her cargo is discharged in order 
 that she may be repaired, after she is repaired her cargo is re- 
 shipped, she proceeds on her voyage, and reaches her destination. 
 Any mercantile man would expect that the General Average re- 
 sulting from such simple and everyday facts would be the same 
 wherever the average might be adjusted; but 1 am informed that 
 that average adjusted in the United States might be three times 
 as great as it would have been if it had been adjusted in the United 
 Kingdom. Differences such as these— and their name is legion — 
 give rise to constant disputes and feelings of injustice. A strong 
 feeling has existed for a long time amongst commercial men that 
 such a state of thing-s ouoht not to be allowed to continue — that 
 transactions between men of different nations (which General 
 Avei'ages are in most cases) should not be governed by the local 
 laws or customs of the port of shipment, the port of destination, 
 or the place of residence of the underwriter — tliat international 
 or general maritime law's and customs should govern such subjects 
 in the same way that collisions on the high seas are determined in 
 our Admii*alty Court, so that a General Average under any given 
 circumstances should be the same in all countries. The ditfieulty 
 has been how to bring about such a result. Some few have adopted 
 practical remedies to meet the present grievance in our own parti- 
 cular cases, but this is only a partial and exceptional remedy. The 
 generality are still daily sufferers, and the evil has become so great
 
 8 MATilTLME LEGISLATION. 
 
 witli the great increase of commerce, that application was made 
 to this society to take up this subject and find a remedy. As 
 the subject itself was of such great importance to a mercantile 
 nation like ours, and the interests involved so vast, we did not 
 hesitate to accede to the request, and the result is this meeting. 
 On the end in view, viz. uniformity in the adjustment of General 
 Average, we are not hampered with some of those difficulties which 
 embarrass other questions, for it is admitted that there ought to be 
 uniformity. We have, therefore, to consider only how we can 
 practically accomplish it. When the present movement was first 
 suggested a general revision of the principles which should govern 
 the adjustment of General Average was contemplated, and it was 
 argued, and with much reason, that if we could agree on the prin- 
 ciples which ought to govern the adjustment of General Average 
 we should have no difficulty in agi*eeing to act on these principles, 
 and thus uniformity in practice would be obtained. The improba- 
 bility of our all agreeing on these principles, in addition to other 
 considerations, rendered it unadvisable to start upon that plan. It 
 was then suggested that the attention of the meeting should be 
 devoted solely to the formation of machinery for obtaining here- 
 after uniformity on any disputed point — i.e. to the formation of a 
 court of appeal for all nations, to which all doubtful points should 
 be submitted, and to whose decrees all nations should bow. This 
 plan also has many arguments to recommend it, but it would involve 
 indefinite delay before any practical results could be obtained, while 
 it was felt that it was very desirable to obtain an immediate and prac- 
 tical remedy for the greatest of the existing evils. We were, there- 
 fore, induced, in the first instance, to make an attempt to procure an 
 ijjimediute decision on the points of the greatest and most pressing 
 practical imjioi'taucc. 'J'iiis coui'se will by no means preclude the 
 consideration of t\n'. principles which ought to govern the subject, 
 and naturally leads us to the discussion of the second, viz. the con- 
 sideration of the exi)edi('ncy and practicability of forming a court 
 of !ij)p('al for our govcruDiciit (in :ill other (|Ufslioiis which niay be 
 ill (loiil>t()r disputed. It is not probable that we shall be unani- 
 mous on the abstract correctness of tlie jirinciples which ought to 
 goveiMi any one of the points o\cn now before us, still less on the
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 9 
 
 practical rules which some may think it expedient to adopt to re- 
 strict or modify those principles. We are here from all parts 
 of the world. Each country will naturally be favourable to its own 
 customs and principles to w^hich it is accustomed. Each of us will, 
 therefore, be obliged to modify or abandon his own peculiar views 
 in deference to those of the majority if we are to arrive at a prac- 
 tical result. Before we proceed to discuss the point before us, or 
 even to read papers, we should consult and perhaps decide on the 
 mode in which we are to arrive at the opinion of the meeting as a 
 hodi/, and after the points before us have been discussed, we must 
 consider wluit available machinery can be framed for carrying out 
 this opinion in practice and for rectifying hereafter other difficult, 
 doubtful, or disputable points not included in our present pro- 
 gramme. If we were all representatives with full power to bind 
 our constituents, or even if all places were represented here to-day, 
 we might perhaps devise such a plan, and carry it out in practice 
 at once, but many of us are only present on our own account, al- 
 though deeply interested in the subject no doubt, and from our 
 position capable of influencing others. We must therefore submit 
 our plans to the different mercantile communities before they either 
 can or ought to be carried out in practice. This is a difficulty 
 which calls for our attention. I have purposely abstained from 
 commenting on any of the nine points to discuss which we have 
 met here to-day, as it would be premature before the papers are 
 read. I will, with these few observations, leave them in your 
 hands, adding only on the part of this country that in which I am 
 sure all Englishmen will agree — viz. that we feel deeply indebted 
 to all those gentlemen who have crossed the seas, at so much per- 
 sonal inconvenience, for the purpose of attending here to-day, to 
 promote unity amongst nations on this great mercantile question. 
 
 Mr. Rathbone then said : I think perhaps it will be desirable 
 to mention the course w^e propose to adopt. There are eight papers 
 to be read — they are all very short — all to the point, which is not 
 always the case, and, therefore, I think, perhaps, if my Lord 
 Brougham agrees, that it will be better to read these papers first. 
 I am sorry to say w^e have no paper from America, but I hope the 
 delegates from America will say a few words after all the papers
 
 10 MARITIME LEGISLATION. 
 
 have been read. Perhaps it will be best at once to go to business 
 upon the resolutions after reading the papers, and after we have 
 heard the opinion fi'om America. I think almost every other 
 country has sent in its opinions in writing. 
 
 The Chairman. I think we have nothing from France. 
 
 Mr. Rathbone. I am sorry to say that, though the Association 
 of Underwriters in Paris write most cordially, wishing us every 
 success, the gentleman by whom they wished to be represented 
 has unfortunately been prevented attending, by business. 
 
 The Chairman. ^A'hen you talked of a court of appeal, did 
 you intend it to be a court of appeal in General Average, or on all 
 mercantile matters ? 
 
 Me. Hathbone. A general court of a,ppeal, of which General 
 Average would form a part. 
 
 The following papers were then read : — 
 
 Mr. William Richards (of London) : Within the brief space 
 of time permitted to us after receiving intimation of the course 
 intended to be followed at the International Congress for the pro- 
 motion of uniformity in the adjustment of General Average, to be 
 held at Glasgow on September 25, 1860, it is impossible to enter 
 upon the suljject with the careful and mature consideration which 
 it requires. 
 
 We can, therefore, only offer a few cursory reflections upon the 
 general question. 
 
 Attention has frequently been drawn to the diversity of practice 
 in the treatment of questions relating to General Average. From 
 the remarks of Chief Justice Abbott,^ and of Chief Justice Gibbs, 
 in Taylor v. Curtis,^ we learn that, although all the commercial 
 states of Europe have adopted the rule as to General Avernge, 
 coritril)ii1i(.n being made by all parties concerned in a sea adven- 
 ture towards extraordinary exjX'nses or losses, voluntarily incurred 
 by one or more for tlie benefit of all — each of these states pro- 
 feHsing in follow llie IJJiodiaii law — yet they often differ from each 
 other; tliat foreign jurists liave oftt-'ii ni;i<le very different connneiifs 
 
 ' 5th edition oi Abbott on SJiljyjnui/, ji. ."Ml*. 
 
 '-' Ilildyard's edition of I'arltc mi InHunnicc. p. '2H'i.
 
 lliTTERNATIONAL LAW OF GENERAL AVERAGE. 11 
 
 upon that law, and that no priu(ii)le of maritime law has been 
 followed by more variations in practice. 
 
 More than a century ago strenuous attempts were made to have 
 the Marine Insurance law of this country reduced to a code as in 
 many foreign states. The Legislature, however, have considered 
 it better to avoid making positive enactments. 
 
 Marshall, in his preliminary discourse,' considers that it Avould 
 be extremely difficult, if not wholly impracticable, to make positive 
 laws to suit every case, and doubts whether, if such were made, 
 they would be found to answer the purpose of preventing litiga- 
 tion ; and the same writer maintains that, in consequence of the 
 absence of any code, the practice of insurance in England had 
 been in his time more conformable to principles and the usage of 
 trade than that of foreign nations. 
 
 The present movement has for its intention to assimilate the 
 General Average principles and practice of this and other countries, 
 and thus to modify or put an end to the differences which exist 
 between the laws and customs of different states in relation to 
 General Average. 
 
 The mode adopted by the Association to obtain this desirable 
 result is to a certain extent in accordance with the views of the 
 late Mr. Stevens, the well-known writer on Average, who con- 
 sidered that the object of clearing up the uncertainty existing on 
 many points would be most readily attained by men of experience 
 communicating their knowledge to the world, and that repeated 
 examination and discussion of the practice of insurance (and of 
 average as arising out of it) would alone fix it on solid principles, 
 and secure for them that universal assent which would probably 
 never be yielded to the deliberations of any particular body of 
 men. 
 
 In the case of Birkley r. Presgrove,^ General Average was 
 defined to be ' all loss which arises in consequence of extraordinary 
 sacrifices, or expenses incurred for the preservation of ship and 
 cargo.' The laws of foreign countries seem to recognise the same 
 general principle as forming the basis of General Average. The 
 question may therefore be asked, whence does such diversity arise 
 
 * Treatise on Insurance. London, 1808. ' 1 Eart. 220.
 
 12 MARITIME LEGISLATION. 
 
 in the practice of different countries ? No one will deny that a 
 sacrifice made for the preservation of the lives and property at 
 stake is General Average. 
 
 Mr. Benecke with justice says : ' The consequences deduced by 
 legislators and commentators from this apparently simple rule differ 
 materially from each other, and this is not surprising if we con- 
 sider in what different senses the words sacrijice and preservation 
 may be taken.' 
 
 The courts of law in England and America mutually regard 
 the decisions in both countries on the subject of General Average 
 with the highest respect, and the leading writers on General 
 Average in each country give the gi-eatest weight and considera- 
 tion to the reasoning of those in the other. Yet, on some of the 
 points proposed for discussion at the present meeting, the practice 
 of the two countries is at variance, and the decisions and opinions 
 of the greatest jurists have been conflicting. 
 
 If we refer to cases in our own courts we find that a leading 
 principle is very frequently not considered as law until it has 
 undergone discussion in more than one court, or has been sub- 
 mitted by appeal to the House of Lords. It is no wonder, then, 
 that difficulties should arise in determining the construction to be 
 put upon the principles referred to. And many cases of average 
 arise in the course of practice which require close and careful 
 investigation before a person well experienced in the study and 
 practice of General Average can determine the principle which 
 directly bears upon the point at issue. Although the adoption of 
 the broad principles of General Average, as laid down in the case 
 referred to above, is universal, the limit or extension of these 
 principles varies in different countries to a very considerable 
 exti'iit, and it will be easily understood Ihat to this cause is 
 attributable the great diversity in praclice. The practice as 
 established in America allows in General Average the indirect 
 conscfjuences of a General Average act, wliile the practice of this 
 count ry restricts sucli allowance to the dii'cct and imtiu'diatc con- 
 sequences of such act. If we take the case of a mast cut away 
 for the general preservation, wo find the mast with yards, sails, 
 rigging, A-c, admitted as (Jeneral Avemge in liotli count ries, and
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 13 
 
 if tho ship has to bear up for a port of refuge to replace these 
 losses, the wages aud provisions of the crew from the time the 
 vessel bore up till the repairs were effected would, in America, be 
 chargeable in General Average, while in this country they would 
 be placed to account of owners of the ship. 
 
 Again, if a ship, having been compelled by sea peril to put 
 into a port of refuge, is obliged to unload her cargo to repair 
 damage, the American practice allows in General Average the 
 whole of the expense of unloading, warehouse rent, and reloading 
 the cargo, as well as the wages and provisions of the crew ; while 
 the English practice charges in General Average the expense of 
 unloading only ; to the cargo warehouse rent ; and to the freight 
 the expenses of reloading and outward pilotage, &c. 
 
 These two instances may serve to illustrate, in the case of the 
 American practice, the extension allowed and, in that of England, 
 the limit put upon the general principle admitted in common by 
 both countries. 
 
 In the time of Lord Mansfield, Mr. Millar, in the introduction 
 to his able Treatise on Insurance,' says : ' The Trade of England 
 has of late been so extensive and various as to increase, to a very 
 great degree, the demand for insurance, and to bring under dis- 
 cussion a multiplicity of curious and interesting points.' This 
 remark is still more applicable to the present day. Cases frequently 
 arise which illustrate the accuracy or fallacy of admitted principles 
 and usages, and although the learning and discrimination of the 
 judges in the courts of law, and the researches of the writers of 
 authority on this branch of the law, combined with the practical 
 experience of those actually engaged in the business of insurance, 
 have been progressively establishing fixed principles or usages, 
 casualties nevertheless sometimes occur under circumstances which 
 render them difficult of application to any recognised standard; 
 and it is probable, therefore, that no attempt to completely assimi- 
 late the practice will succeed. 
 
 We may instance the case of voluntary stranding, the differ- 
 ence of opinion which exists on this subject being a fruitful source 
 of complaint. 
 
 ' Edinburgh, 1787.
 
 14 MARITIME LEGISLATION. 
 
 Mr. Benecke, referring to voluntary stranding, writes as follows : 
 ' When a vessel is purposely run on sliore and afterwards got off 
 with damage, the question whether the repairs of such damage be- 
 long to General or Particular Average, depends entirely upon the 
 cu'cumstances of the case. If the situation of the vessel were such 
 as to admit of no alternative, so that without running her ashore 
 she would have been unavoidably lost and that measure Avere re- 
 sorted to for the purpose of saving the lives or liberty of the crew, 
 no contribution can take place, because nothing in fact was sacri- 
 ficed. But if tbe vessel and cargo were in a perilous, but not a 
 desperate situation, and the measure of running her ashore was 
 deliberately adopted as best calculated to save the ship and cargo, 
 in that case the damage sustained, according to the fundamental 
 rules, constitutes a claim for restitution.' ' Suppose,' continues 
 Mr. Benecke, ' that a vessel having sprung a dangerous leak, the 
 master, in order to save a valuable cargo, determines to run her 
 ashore in a convenient place, although he might possibly have 
 reached a harbour with a leaky vessel, at least if he had chosen to 
 throw overboard part of the cargo ; or suppose him to adopt the 
 same measure if, pursued by an enemy, he considers this a more 
 efficacious method of effecting her escape than lightening the 
 vessel by jettison. Here we find all the necessary requisites for 
 constituting a general contribution — imminent danger, a voluntary 
 determination, and a sacrifice — and I can see no reason for dis- 
 tinguishing these cases from that of goods being thrown over- 
 board, or of a mast being cut away in a storm.' 
 
 Mr. Benecke, in the above observations, appears to mark out a 
 clear line of distinction in the treatment of claims for damage arising 
 out of volunta,ry stranding. We may remark that, in the endeavour 
 to assimilate the practice of General Average in relation to the 
 allowance under this head of losses sustained, or expenses incurred, 
 it is very important ihat full consideration sliould be given to the 
 basis on whicli the values of the contributing interests should be 
 estaljlislied. 
 
 Magent says : 'I'lio valui^ of llic sliip and cm-go to contribute 
 to General Average is flml vnliic wliicli llicy would have jiroduced 
 net for ready money, had they belonged tu one [jerson, and had no 
 sacrifice been made.'
 
 INTERNATIONAL LAW OF G1':NKRAT. AVERAGE. 15 
 
 This is tlie basis adopted by the practice of this country, in 
 cases where the average is adjusted after the arrival of the ship at 
 her port of destination. 
 
 By the practice of Hamburg and other foreign states, any 
 cargo is made to contribute upon the invoice value, without regard 
 to the damage it may luwe sustained during the voyage. 
 
 This practice, considering the limited value usually put upon 
 the ship, might not, when the cargo arrives in good order, be 
 found to entail any very serious hardship on the owners of the 
 vessel, but in the event of any particular shipment becoming 
 greatly damaged during the voyage, such goods suffer an injustice 
 by being forced to contribute upon a value which does not exist, 
 and the owners of the same, in claiming under their policies, 
 frequently become involved in difficulty and controversy. 
 
 In referring to the question of contributory values, we have 
 only mentioned one point out of many which appaars to require 
 consideration. 
 
 The convenience now afforded of submitting a question of 
 principle to the Judges, upon an admitted statement of facts, 
 presents a means of gradually establishing a uniform system in 
 this country, where established mercantile custom, ' once clearly 
 ascertained in any of the supreme courts, acquires the force of 
 law, without the sanction of legislative authority.' ^ 
 
 It is impossible, in the few minutes allowed for the reading of 
 a paper, to touch upon the important matters which appear in the 
 synopsis. 
 
 M. Theodore Engels (Chamber of Commerce, Antwerp) : 
 La Chambre de Commerce d'Anvers a refu avec beaucoup de satis- 
 faction 1 'invitation gracieuse de votre Comite de venir discuter en 
 commun, les mesures a prendre dans un interet general a toutes les 
 nations maritimes, des reglements qui regiront par la suite une 
 matiere aussi importante que celle des avaries communes. 
 
 EUe sait gre a I'Angleterre, le pays du progres par excellence 
 et des idees pratiques, d'avoir pris cette initiative et nous a 
 charges d'etre aupres de vous I'interprete de ces sentiments. Yous 
 trouverez, en notre pays, la plus grande sympathie et un appui 
 
 ' Marshall, 21.
 
 ]6 MARITLME LEGISLATIUX. 
 
 energique, tant de la part du gouverneraent que de celle du com- 
 merce, a faire prevaloir les mesiires qu'uiie discussion generale et 
 approfondie aura fait reconnaitre comme les plus pratiques et les 
 plus equitables. 
 
 En effet, Messieurs, en presence de tous les progres qui se font 
 jour, n"en est-il pas un des plus indispensables, dans linteret 
 general, que les repartitions d'avaries communes subies volontaire- 
 ment dans un moment de peril commun, se fassent sur un pied 
 uniforme, que I'armateur, le negociant et I'assureur de toutes les 
 nations saclient cpielles sont les lois generales qui leur sont appli- 
 cables et que, n'importe dans quel port du nionde ou son navire ou 
 sa marcliandise arrive, il soit traite d'apres des bases fixes non 
 sujettes a des interpretations arbitraires ou locales, qui donnent lieu 
 a tout moment a des difierences serieuses et regrettables entre lui 
 et ses assureurs. 
 
 La Belgique, Messieurs, ancien foyer d'industrie et de pros- 
 perite commerciale, ne reste jamais en arriere quand il s'agit 
 d'inaugurer une innovation heureuse. Elle apprecie a leur juste 
 valeur les nobles efforts que sont faits dans ce but, n'importe d'oii 
 ils arrivent, et on trouvera toujours en elle un concours loyal et 
 actif. 
 
 Me. Thomas R. Davison (Average Adjuster, London) : If 
 tlie section of the National Association, wliich lias originated this 
 movement, can succeed in its proposed object, the result, in a com- 
 mercial point of view, will be, perhaps, more important than any 
 subject brought under the notice of the Association. 
 
 The discordant practice of different countries, in reference to 
 General Average, is a grievance to the mercantile community at 
 large. 
 
 Some mode of apportioning General Average has existed since 
 commerce originated. The early view taken of making a division 
 of 1h<' losses or expenses incurred has been, that as an accident 
 has happened, in which the entire interests of the ship, freight, 
 and cargo were concerned, the charges shoidd be distributed over 
 the whole according to their respective values, without any attempt 
 at disciiminatiou. 
 
 'J'his practice slill [)revails in sonie places, where probably closer
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 17 
 
 investigation has not been entered upon, and in others it has been 
 irreguhirly varied, without establishing any other principle : my 
 object is to show that a more perfect examination of the subject 
 would tend to bring about the agreement sought for. 
 
 In England the principles of General Average and its conse- 
 quences have been a complete study and, among those who follow 
 it as a profession, there is no difference of opinion except on some 
 few inconsiderable points ; upon great questions they are agreed. 
 
 General Average rules are to be considered without reference 
 to Insurance : they are in reality a common-sense distribution of 
 such losses and charges as belong to the united interest included 
 in ship, freight and cargo. To arrive at a proper understanding 
 of the apportionment of the losses and charges, it is necessary to 
 look to the exact and immediate cause of them, and to avoid as 
 much as possible including consequences. For this purpose I will 
 consider No. 6, of the designated principal points on which differ- 
 ences exist : ' Expenses of warehouse rent on cargo, re-shipping it, 
 and outward port charges at a port of refuge, when the original 
 ship carries on the cargo from that port.' 
 
 In many countries it is the practice to put the cost of dis- 
 charging cargo, warehouse rent and re-shipping into General 
 Average, thus including therein the direct act of General Average 
 and its consequences : no doubt this originated in the before-de- 
 scribed idea that, as there was one general calamity, each interest 
 should take its share according to its value. Our custom, the 
 result of much study and experience, is to make such a separation 
 of the charges as will make them apply as directly as possible 
 to the respective interests for which they are incurred. A ship 
 having sustained damage has sprung a leak, and it is requisite to 
 discharge her cargo to repair ; she could not otlierwise proceed on 
 her voyage, and therefore ship, freight, and cargo are interested in 
 the discharge, and the expense of discharging the cargo is there- 
 fore General Average : the rent of the warehouse is a direct charge 
 upon the cargo and should be so levied : it is a consequence of the 
 accident, but so would the loss of the cargo be if it were burned 
 in the warehouse, and I am not aware that it has ever been pro- 
 posed to make damage in warehouse a subject of General Averao-e ;
 
 18 MARITIME LEGISLATION 
 
 the re-shipping and outward charges become a direct charge on 
 the freight : the owner of the ship took in his cargo originally to 
 earn a freight and must take it in again, after a casualty, to enable 
 him to take it to its destination and so earn his freight. 
 
 In a ease of accident and its consequences, every interest will 
 incur some charges peculiar to itself, and it is not equitable to 
 throw upon the general interest such share of the accident, enabling 
 thereby the proprietor of one interest to escape at the expense of 
 the others. The effect of putting the charges of rent and re-ship- 
 ping into General Average is that the ship, having paid for its own 
 particular average repairs of damage, is called upon to contribute 
 to the charges belonging to cargo and freight, which pay nothing 
 towards its repairs, and it might easily happen that a ship of high 
 value having a bulky cargo, as of timber or coals, might have to 
 pay, in addition to her own repairs, four-fifths of the rent and cost 
 of re-shipping of the cargo to the ship's detriment and the advan- 
 tage of the other two interests. 
 
 In reviewing the other points intended for consideration I 
 will take No. 1 . ' Damage done to ship and cargo by voluntary 
 stranding.' 
 
 This cannot be taken to be General Average : it does not 
 contain that first element of General Average which is the volun- 
 tary sacrifice of something which, being itself in a condition of 
 safety, is intentionally destroyed or damaged for the general 
 preservation. An anchor and chain by which a ship is riding in 
 safety, is slipped to avoid a collision, or a danger of driving on 
 shore ; masts, when standing, cut away for the same cause ; cargo 
 taken out of the hold and thrown overboard to lighten the vessel — 
 these are legitimate subjects of General Average ; but a ship pur- 
 posely run on shore is to prevent her sinking : before this were done 
 she would be filling with water and be actually in a state of total 
 loss : there could bo no hope of saving the ship, and it could be 
 done only in reality fur a saving of life, the intention and expecta- 
 tion of saving the ship and cargo not being in fact contemplated. 
 If it could bo assumed 1o be dlcinrul Avci'iigc, it must fail a« such 
 for its own uiiccrtaiiity ; tin- \;ducs;iid lobe sacrificed would be 
 unascertainable : under such ciicuuislances, a ship partially filled
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 19 
 
 with water, and a cargo in such a state of damage could not be 
 valued. In England, therefore, the damage to ship and cargo are 
 treated as partial loss and not General Average. 
 
 No. 2. ' Damage done to ship and cargo by extinguishing a 
 fire.' The damage to ship if by cutting the deck is voluntary and 
 clearly visible, and its repair is General Average : the damage by 
 water supposed to have got down by extinguishing the fire is 
 incidental and not a voluntary act and is treated as partial loss. 
 
 No. 3. ' Chafing and breakage of cargo after jettison ' is a 
 consequence and not a voluntary act, and we make it partial loss. 
 
 No. 4. ' Damage done to cargo by discharging at a port of 
 refuge.' I assume this to mean damage sustained in the act of 
 discharging, which is General Average. 
 
 No. 5. ' Cutting away wreck of masts accidentally carried away.' 
 Such wreck lying in the water is already lost, and is cut away as a 
 nuisance, and is not General Average. 
 
 No, 7. As to ' carrying a press of sail,' I presume for the alleged 
 purpose of keeping off a lee shore. The sails are doing no more 
 than the duty required of them, and their being damaged is not 
 General Average. 
 
 No. 8. ' Wages and provisions of the crew during the delay 
 caused by putting into port ' are not, by legal decision, recoverable 
 in General Average in this country. The allowance of these charges 
 in General Average is a very questionable advantage to the owner 
 of the ship : it is an inducement to the master and crew to go into 
 port upon slight or unnecessary occasions, and, even when necessary, 
 to delay their departure ; and the loss to the owner by the lengthen- 
 ing of his voyage is not compensated by his crew being paid their 
 wages and board during detention. If it be no advantage to the 
 owner of the ship it is most injurious to the owner of the cargo, 
 whose market may be lost in addition to that of interest on his 
 capital. If this portion of the system of General Average could 
 be generally abandoned it would be a boon to the mercantile 
 community. 
 
 No. 9. ' Contributing values of ship, freight, and cargo.' The 
 rule in many places is to take half the value of the ship and half of 
 the freight, taking also the net value of the cargo. There is an 
 
 (; 2
 
 20 MARITIME LEGISLATION. 
 
 absence of any established principle in taking half the value of the 
 ship and the full net value of the cargo : the value of the ship is 
 her market value, less the repairs of her damage, and the freight is 
 the freio-ht due, less wages and charges, and that of cargo should 
 be its net arrived value. 
 
 In most of the points considered above, if all interests — ship, 
 freio-ht, and cargo — were insured, the result might be of no import- 
 ance to the proprietors of each interest, because they would recover 
 their entire loss either under the head of General Average or 
 partial charges or loss ; but as it will frequently occur that some 
 will be only partially, or not insured at all, it is as essential that 
 an equitable mode of apportionment should be adopted as a unani- 
 mous one. If the warehouse rent of the cargo and charges thereon, 
 which would follow, be included in the General Average, the owner 
 of the ship uninsured would be materially prejudiced for the benefit 
 of the cargo ; so might the cargo be by having to pay its share of 
 re-shipping charges. 
 
 For these reasons I am of opinion that in any apportionment 
 of the charges arising out of a general casualty, whether those 
 interested be insured or not, a separation according to the English 
 custom will be found the most equitable. 
 
 In considering the whole proposed question of the promotion of 
 uniformity in the adjustment of General Average I have to state 
 that in my experience the opportunity has been afforded me of 
 examining the General Average statements of perhaps every foreign 
 country where such documents are usually made up. I have found 
 statements made up in two ports of the same country differing 
 entirely and materially. 1 have found in one city of most extensive 
 commerce official statements made up on the most opposite prin- 
 ciples. Throughout the whole which have come before me there 
 appears an entire absence of any fixed principle and certainly there 
 is no country in which there is a standard to which the general 
 commercial community could conform with any advantage. 
 
 Ilio Knglish practice has been based on principles adopted after 
 iinirli study and ('xpcricnce, ami I siiluiiil (or tlic consideration of 
 those whose minds iiave been directed to this question whether, as 
 a whole, this may not be the best system to use as a guide to a 
 general uniformity.
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. il 
 
 Dr. N. Rahusen (Representative of tbe Netherlands Trading 
 Company). I must apologise for speaking a few words, in a lan- 
 guage which is not my own, before the discussions on the various 
 points of General Average are opened by the noble lord, our illus- 
 trious chairman. 
 
 We received in Holland, with great interest, the invitation of 
 the National Society for the Promotion of Social Science, to meet 
 at a congress in this thriving town of Scotland, for the purpose of 
 discussing the system of General Average. I was appointed by 
 the Netherlands Trading Society to be its representative. The 
 committee of shipowners at Amsterdam also desired me to repre- 
 sent its interests. The object aimed at is to bring uniformity into 
 the rules which regulate the statements of General Average. It 
 cannot be denied that it is a vast project, for it will not be sufficient 
 that there should be uniformity in the statements of the various 
 seapoi'ts of one country, but the principles upon which they rely must 
 be the same amongst all those nations which have a share in 
 maritime transactions. If now we consider that in some countries 
 the commercial codes have fixed the principles which regulate 
 General Average, that those principles vary in the respective codes 
 of commercial nations, and that there are other most important 
 countries, as England and the United States, in which the system 
 of General Average is onl}- ruled by what is called custom and pre- 
 cedents, I believe I shall not have said too much, in giving my 
 opinion, that the project is a vast one, and surrounded by difficulties. 
 We may never forget that the law originates from the habits and 
 the history of nations, and that, as long as there will be different 
 nations, these nations will have their own history, their own law, 
 their own application of science. We must fear that the legislative 
 authorities in the various countries will not instantly accede to the 
 rules which will be proposed by this meeting. 
 
 I frankly state my own opinion and do not conceal the difficulties 
 connected with the. subject. But, nevertheless, I may congratulate 
 this Society for having adopted the idea, that the so discrepant 
 principles of General Average should be brought into discussion, if 
 I look around me and see in this congregation all those eminent 
 men, and discussion will certainly be profitable to science. Various
 
 22 MARITIME LEGISLATION. 
 
 are the systems adopted in General Average, but truth is but one, 
 and if we earnestly and without prejudice investigate this matter, we 
 must come nearer to the truth, we must come nearer to the object 
 which the Committee of International General Average has in view. 
 
 Gentlemen, one of the Roman emperors being asked by one of 
 his pra^fecti for his decision in a case of stranding, gave this re- 
 markable reply, which is preserved in the digests : ' I surely am 
 the governor of the whole world, but the sea has its oivn law.' 
 That was true in the time of the Roman empire, it is true yet in 
 our days. For, although the practice and codification is different, 
 yet in fact there is but one law of the sea. The more we study 
 that law, that one law of the sea, the more unanimous we will be 
 in its application, and if the result of our meeting is perhaps not so 
 immediate, yet the seed is thrown into the earth and the fruit will 
 ripen. 
 
 I shall be most happy to co-operate in your noble design. 
 
 Mr. J. A. W. Harper (Association for the Protection of 
 Commercial Interests, London) : Nearly all movements, such as 
 the one in agitation on the subject of this section, have to encounter 
 much opposition of a negative kind— not the less obstructive that 
 it is negative — the opposition of apathy and indifference : a con- 
 dition of mind which is formularised in the expression, ' Where's 
 the good ? ' 
 
 1 think that most of the gentlemen present here to-day must 
 have become very familiar with that question lately. So far as I 
 have had opportunities of forming an opinion, in the short space of 
 time which has elapsed since I was first called upon to consider 
 this subject, the great majority of persons immediately interested 
 in it are deeply affected with this moral ague. 
 
 The underwriter I have found disposed to regard it in this 
 manner. The difficulties occasioned by national differences in the 
 adjustment of averages arc only additional elements of risk : to 
 reduce tlic number or diminish the urgency of such difficulties is, 
 in effect, only to diminish the elements of risk ; and if you proceed 
 far in doing lliat, you will ;ippr(iach tlic cxlincfion of all i-isk — 
 and then, he asks, wlmt lias become cf his cniit? A register of 
 |»i"<'miums and a fair annniiil of rajiifal will be the sum of an under-
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 2-i 
 
 writer's requisites. At present he must have an extended and very 
 various knowledge, and is compelled to exercise an intelligent 
 vigilance : that knowledge and vigilance raise him from a dull 
 mechanical tradesman into a thinking intellectual speculator, and 
 he lias no wish at all to descend again below that level ; and so he 
 looks upon your proceedings, to say the best, very coldly. He 
 considers also his pro tits. His largest profits are extracted from 
 the fluctuations of risks, which such difficulties as those you 
 propose to remove give rise to. 
 
 The shipowner is disposed to regard the question in something 
 like the same manner. Immediately he finds himself exposed to a 
 new risk, such as that arising from the anomalies of average adjust- 
 ing, he does his best to estimate it at a money value, and he covers 
 it by an addition to his freight. Or, as is most commonly the case, 
 the underwriter relieves him of the trouble of computing the risk — 
 he estimates it for him, and charges it upon him in the shape of 
 premium. The shipowner pays him and adds the amount to his 
 freiorht. He cares nothing about these difficulties : and looks 
 askance at your proceedings. 
 
 Andj^so also the merchant. He covers all risks, computed in 
 the same manner, by a charge against his profit, or by a premium 
 paid to his underwriter ; and in either case he raises his profit by 
 the amount. And ho, therefore, also makes little account of the 
 discussions you are entering upon to-day. 
 
 Now what follows naturally, necessarily from these plain aspects 
 of the question ? 
 
 I have heard it said by some, whose view is not so clear as that 
 of these experienced practical men — this is an underwriter's ques- 
 tion only. Others look upon it as a shipowner's question ; others 
 again as a merchant's. I venture to maintain that it is neither one 
 nor the other. It is simply a consumers question. If the under- 
 writt'r increases his premium to meet the additional risk ; if the 
 shipowner adds to his freight, for the same reason ; or the merchant 
 to his profit ; in any case, he who ultimately bears the burden of 
 the impost is the consumer. The increase is sure to find its way 
 into the price of the commodity, and the buyer to be tlu' ultimate 
 sufferer.
 
 24 MARITIME LEGISLATION. 
 
 This consideration should divest the question of its sectarian 
 character, and elevate it to the importance of one affecting the 
 whole community and all communities. But, regarded in its 
 narrower aspect, if it be but regarded in a comprehensive manner, 
 it will appear a question nearly affecting each man in his craft — 
 each man who is labouring for profit in the consumer's service. 
 Cheapness of productions stimulates their consumption, enlarges 
 the area of the operations of all engaged in the production, relieves 
 them of the excessive pressure of competition, and increases the 
 amount of their gross periodical profits. In this way, although it 
 may seem to the underwriter, the shipowner, and the merchant 
 that, so long as the purchaser of commodities covers all their 
 charges, it is of little consequence what those charges are, it is 
 yet certain that in the end they will all find their account in any 
 relief which accrues immediately to the consumer. And if they 
 admit this, they will soon agree with us that differences in the law 
 of General Average of various countries — inasmuch as they involve 
 several risks, some certain, others indeterminate, and inasmuch as 
 those risks enhance the price of commodities — are an evil which 
 it is worth an effort to remove. 
 
 But the only one weighty objection to the proceedings of this 
 section that I am aware of is this : — that there is no issue to your 
 movement — that there can be no practical end to it and that you 
 are beating the air. It is an objection which seems to have a sort 
 of parasitical attachment to all considerable movements There 
 has scarcely been any change of importance in the settled condition 
 of things which, at the first conception of it, was not impossible. 
 But yet the objection is one you must face, for it is a real and 
 serious one. You may hope to effect the changes you look for 
 through the medium of the Governments of the principal trading 
 coiiiil lies : in tliut case you must contemplate changes, more or 
 less considcriible, in tlic mercantile law of those countries. Tu 
 order to appreciate tlu^ difliculticss you would have to surmount to 
 arrive at tliat, you luive only to reflect for a moment njion what 
 you must do ff) ol)lain any alfeiMlion in youi' own law; and 
 of course you contenijilate changes there. 'J'he law of (u'lieral 
 Average in Knglaiid rests on the decisions of some of the ablest
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 25 
 
 Judges that ever adorned the Bench. And, whatever difficulty 
 you might have to struggle with here, you will find yourselves 
 confronted with similar ones in every other country. 
 
 But perhaps you hope for some general assent on the part of 
 the tradinof communities in different countries, to a set of rules to 
 be made operative by clauses of contract in documents of trade, 
 such as bills of landing. The special obstacles to the progress of 
 a scheme in this direction will, no doubt, be pointed out. One is 
 prominent. The contracts will only bind the parties to them. 
 Suppose an adjuster, employed upon the statement of a CJeneral 
 Average, should find that half the bills of lading contain clauses 
 binding the parties to them to the rules laid down in the new code, 
 and the other half do not ; and, suppose the law of the port of 
 discharge differ from the code — half the interests would require an 
 adjustment according to our principle, the other half according to 
 another. "What a provision for confusion we have here ! If this 
 prime difficulty can in any way be surmounted — if you can effect 
 the necessary changes in the law, or frame a machinery for super- 
 seding the law, it is probable that you will accomplish all that you 
 desire, and will confer important benefits on commerce. 
 
 Suffer me to refer, in conclusion, to one or two cases which may 
 illustrate the mischiefs arising from w^ant of uniformity in the laws 
 of average. 
 
 A Spanish ship, with a cargo worth 200,000Z., puts into a port 
 of refuge a day or two after putting to sea, and is found to be 
 rotten and wormed ; the owner spends 8,000Z. in repairing her, 
 and then, having a fine new ship, takes on his cargo to a Spanish 
 colony. There the General Average is adjusted, and the cargo 
 contributes to the repairs. But the cargo is worth 200,000^. — the 
 ship about 5,000/. ; so that the cargo pays nearly all. When the 
 English merchant is called upon to make this magnificent present 
 there is some heart-burning, perhaps disputes or lawsuits. 
 
 An American ship is sinking ; the captain runs her ashore ; 
 some of the cargo is saved, very badly damaged ; the ship is re- 
 covered and repaired. By American law the stranding was volun- 
 tary, and the repairs are paid for by General Average contribution ; 
 and so the shipowner takes perhaps the whole of the saved cargo.
 
 26 MARITIME LEGISLATION. 
 
 A Hamburg ship has a cargo of sugar worth 3,000^. She 
 puts herself upon the strand; a great part of the sugar is 
 washed out, the remainder sells for 3001. The ship is recovered 
 and repaired for 2,500Z. The cargo had to contribute to the General 
 Average, not on the sold value, 300Z., but on the invoice value, 
 3,000/. So that the merchant had to give up all his cargo that 
 was saved and pay about 1,000L for what was lost. The English 
 underwriter had to pay it : it was Hamburg law. 
 
 A Dantzic vessel puts into Cowes in the beginning of winter ; 
 frost sets in in the Baltic ; the vessel remains at Cowes all the 
 winter and till the ports are open in the spring. During the re- 
 pairs, which the rule I am going to mention has no tendency to 
 expedite, the captain and crew enjoy themselves in the Isle of 
 Wight at the general expense ; for by the Prussian law their wages 
 and keep are General Average. By English law it is not so ; and 
 when by-and-by, the English underwriter on the cargo is called 
 upon to pay, the often-recurring disputes commence again. 
 
 The following is a curious case. A merchant shipped 8,000/. 
 worth of goods for Sweden. Half (4,000/. worth) took sea- 
 damage, the other 4,000/. worth arrived sound. There was a 
 General Average contribution for damage and expenses. Now 
 first — although the General Average act saved the goods, and 
 therefore saved the freight, yet the freight (contrary to the prac- 
 tice of England) did not contribute : it had nothing to pay for 
 being saved. Secondly, the sound half of the cargo was valued at 
 its invoice value, which of course did not include the freight, &c. 
 But ihWdlij, the damaged half was valued at its gross sold value — 
 the gross amount it realised when sold, and that of course included 
 the freight. So that the freight, in principle, in theory, was not 
 to contri])ute at all. By the mode of settlement half did, in fact, 
 (iiiil ribiitc, liiiiriiot. Tilt', statement was objected to, in this country, 
 on all three grounds ; but it was replied, from Stockholm, that such 
 was the law of Sweden, and tho adjustment stood its ground. 
 
 There is a vast number of cases of irregular adjustments, not 
 ma(l(! according to any known l;i\v. In ^biiiilla ;in cxpfricnced 
 Hhipmaster and respectable man of business are nsnally employed 
 to invent flio adjustments. Tn sonic places the notaries ni!ik(> tlu^m
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 27 
 
 up. In some places the Chambers of Commerce provide the ad- 
 justers and dictate their law. In France, if an adjustment reaches, 
 in any way, the Cour de Cassation, the Code Napoleon is applied to it. 
 
 But, practically, the Code scarcely reaches the ports of France. 
 I am informed, by a very eminent adjuster, that the adjustments 
 made up in Marseilles are very different from those made up in 
 Le Havre. I have myself seen different adjustments made up 
 in Antwerp, and signed by the number of adjusters, prescribed by 
 the Belgian Code, upon quite different principles. And, finally, 
 London is not always in accordance with Liverpool, nor London 
 with itself. 
 
 Now, for all these latter cases the remedy, so far as they admit 
 of remedy, is in the establishing of skilful professional adjusters ; 
 and this can only take place when the trade of a port becomes so 
 considerable as to require it. For the differences in the laws of 
 countries there may be a remedy : I hope that in your discussions 
 you may light upon it. 
 
 Mr. James Caddow (Average-stater, Liverpool). In present- 
 ing the following observations to the notice of the Association, I 
 propose to draw attention to a few of the discrepancies and ano- 
 malies that mark the present system of General Average ; their effect 
 as regards owners of ship and cargo, and their underwriters ; and 
 the necessity for uniformity, and the mode of attaining it. 
 
 The discrepancies which exist in the usage of the different 
 maritime countries in the world embrace — 
 
 1st. Those which arise in the disposal of the items which form 
 the subject or claim for general contribution. 
 
 2nd. Those in the valuations on which the several interests 
 are made to contribute their quota to the General 
 Average. 
 
 Of the first of these two, tlie following constitute some of the 
 principal points of difference. 
 
 The expenses of pilotage and towage inwards and outwards, 
 and other charges incidental to a vessel's entering and departing 
 from a port of refuge. 
 
 Discharging and reloading the cargo. 
 
 Warehouse rent.
 
 28 MARITIME LEGISLATION. 
 
 Loss of, or damage to, cargo, through discharging and reloading. 
 
 Wages and pro\asions of crew during detention. 
 
 With regard to the above expenses the practice in England and 
 America may be placed in juxtaposition, in order to illustrate those 
 differences which it is our object to abolish. In America the whole 
 of the above expenses are admitted as General Average, whilst in 
 England the outward charges, the expenses of reloading, and the 
 wages and provisions of the crew, are borne specifically by the 
 owners of the ship, and the rent of the cargo, and the damage 
 accruing to it from the forced discharge, fall upon its proprietors. In 
 France a distinction is drawn between cases in which the putting 
 in is the result of accidental damage, and those in which it is the 
 result of a voluntary sacrifice of part of the ship. In the former 
 case the charges are treated as special expenses, and in the latter 
 they are all admitted as General Average. 
 
 Masts, spars, and rigging cut away. 
 
 Little, if any, diversity exists in the mode of settling this loss 
 when the articles sacrificed are in perfect condition, and not what 
 is technically termed ' in a state of wreck ; ' if, however, they have 
 been previously carried away or damaged, a material difference 
 exists in the practices prevailing in this and foreign countries. In 
 Sweden, Denmark, and Prussia, the sacrifice of the above wreck is 
 allowed as General Average. In England, however, it is — I think 
 with propriety — disallowed, because it is incumbent upon the 
 master in such circumstances to rid the ship of what is a mere 
 incumbrance and impediment to her navigation. 
 
 A case came recently under my observation where a vessel, 
 bound hence to Alicant, encountered tempestuous weather, in 
 which the masts were sprung, and fell overboard with all attached. 
 She put into Holyhead, and was towed to Liverpool, where the 
 cargo was discharged in order to effect the repairs, on completion 
 (){' wliicli tlie cargo was re-shipped, and the vessel proceeded. In 
 the fijreigii adjustment, tlie Tent, discharge, and re-shi]iment of the 
 cargo were included in tlic (General Average, and not only was the 
 cost f)(' re|ilaeing 1 lie above s])ai-s and rigging adniided to tlu> same 
 (•<)lutnn, but acfn.-illy llie ensf ol" discliarging and rent of cargo at 
 lliti jKirl of flcslhuiliun I 'J'liis nnldoes in liberality the practice
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. U9 
 
 which obtained in France some time since, and whicli included in 
 General Average not only all the port charges and expenses in- 
 volved in putting into a port of refuge, but also the extra cost of 
 repairs at that port, beyond their estimated cost at the port of 
 destination. 
 
 Damage done hy carrying a press of sail, in order to avoid a lee 
 shore, is allowed in America, and nearly everywhere but in England, 
 where the rule laid down in the cases of Power v. Whitmore, and 
 Covington v. lloberts, has long prevailed, and such loss is of course 
 excluded from general contribution. 
 
 Damage hy the voluntary stranding of a ship is also admitted in 
 Prussia and Denmark, but rejected in this country. 
 
 Coppering, under certain circumstances, may form a subject of 
 General Average, and the mode of adjustment is very different in 
 the United States from the practice observed in England. In the 
 former country the sheathing put on, less the proceeds of that 
 stripped off, is carried to the one-third column. Here, however, 
 the actual weight stripped off only, is allowed in full at the price of 
 new, credit being given for the proceeds realised. 
 
 As regards credits fur old materials sacrificed, the plan in vogue 
 here again varies from that of the United States, where the ship- 
 owner, who is made to bear one-third of the cost of new, receives 
 credit for one-third of the value of the old. 
 
 Commission collecting the General Average is an item invariably 
 included in American adjustments, but not recognised in England. 
 
 Then, as to the contributory values, in America, England, and 
 the Continental States widely different rules prevail. 
 
 For the ship. — In some cases she contributes for one-half her 
 value. In some cases for four-fifths. In other cases for the actual 
 value. 
 
 For the freight. — In some instances we find it contributing on 
 one-half the gross amount. In some cases, on the gross amount, 
 deducting wages and port charges. In others, deducting wages 
 and pi'ovisions. 
 
 As regards the cargo, fewer or less prominent differences arise 
 in this respect. 
 
 But it is clear that the whole system of contjibution is of the
 
 30 MARITIME LEGISLATION. 
 
 most confused and contradictory kind, and requires revision, 
 amendment, and assimilation. 
 
 With the above inconsistencies and irregularities before us, it 
 cannot be matter of surprise than such an abnormal state of things 
 should conduce to the most unsatisfactory results. Let us consider 
 the effect as regards the parties concerned. 
 
 1. On the shipowner. — A British ship, outward bound, puts into 
 an intermediate port, where the cargo is discharged, and during this 
 operation considerable damage accrues to it. At the termination 
 of the voyage he is called upon to pay his proportion of General 
 Average, including, of course, this damage, but being insured in 
 this country the underwriters ignore the foreign adjustment, simply 
 paying him the amount of contribution computed in conformity 
 with British usage, and he consequently suffers a loss he never 
 contemplated. 
 
 2. On the cargo-owner. — It frequently happens that a vessel, 
 bound hence to the United States, is compelled to seek a port of 
 refuge, where, probably, a large amount of General Average charges 
 is incurred ; and on arrival in the States the adjuster includes in 
 his statement, wages, provisions, and other items, which charges 
 the owner of the cargo cannot recover from the underwriters 
 here, who repudiate their liability on any other than an English 
 adjustment. 
 
 3. On the underwriters. — From the above it will also be obvious 
 that the insurers of ship or cargo may improperly be called upon 
 to pay as Particular Average the damages which have already been 
 recovered by the assured in the shape of General Average, and 
 vice versa. 
 
 It thus becomes the interest and duty of all parties to second 
 the efforts now made to reform and remedy this anomalous state of 
 tilings. Underwriters and average staters are painfully fimiliiirised 
 with the chagrin and disgust engendered in the minds of those 
 who are tlie victims of a system wliich precludes the possibility of 
 an assured obtaining tliat full iiKlcinnilication which, after having 
 paid his jx-riniiiin, lie is nalurally li'd In ;iiil ici|)!ite. 
 
 Whilst, however, our attention is dirccU'd to the diversity of 
 practice and usage as Ijetwcen the \arious slatrs of Kuropo and
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 31 
 
 America, the fact must not be overlooked that some rather serious 
 differences exist in tlie mode of settlement adopted by the various 
 average-staters in this country. For instance, it- is by no means a 
 settled point whether damage done to a vessel's bottom by the fall 
 of spars cut away comes under the category of General or of 
 Particular Average ; and the same remark applies to the case of 
 the remains of a parted chain being slipped, which some consider a 
 General Average loss, whilst others charge it specially to the ship- 
 owner. In cases where a wreck of ship and cargo ensues, and the 
 master and crew assist in saving property, some adjusters admit 
 the wages from the date when the necessity for the condemnation 
 becomes known ; others again believe that the condemnation has a 
 retrospective effect, and advocate their allowance from the date of 
 actual wreck. Numerous other differences exist, chiefly in matters 
 of detail, to which it is unnecessary to refer. 
 
 Another anomaly to which our attention may be directed, is 
 the fact that the custom prevailing at Lloyd's is not unfrequently 
 at variance with the legal decisions and opinions that have emanated 
 from our Courts of Law. For instance, the judgments delivered 
 in the cases of Gould v. Oliver, and Milward v. Hibbert, sanctioned 
 the admission of jettison of deckload as General Average, when it 
 is carried according to the usage of trade; and in the cases of 
 ' The Copenhagen,' Da Costa v. Newnham, and Plummer v. Wild- 
 man, the tone of the Courts would lead us to infer that reloading 
 and storage of cargo at an intermediate port are, in the eye of the 
 law, subjects of General Average contribution. And latterly, in 
 the case of Hall v. Jansen, the present Lord Chancellor, in de- 
 livering the judgment of the Court, incidentally referred to the 
 expense of reloading as legitimately falling upon ship, freight, and 
 cargo. And yet we know that in all such cases the judicial dicta 
 are practically disregarded by the underwriting and mercantile 
 community. Jettison also, although held by some of our learned 
 writers on insurance to constitute a direct claim on the policy, is 
 nevertheless invariably treated as a loss recoverable in General 
 Average. Such an undefined state of the law, or rather such an 
 antagonism between law and custom, should no longer be tolerated. 
 
 "Without multiplying instances, I think that the defective state
 
 32 MARITIME LEGISLATION. 
 
 of tlie present General Average system has been abundantly evinced 
 and sufficient has been said to force the conviction that a para- 
 mount necessity exists for having immediate recourse to measures 
 calculated to remedy and eradicate the evils of which it is the 
 fruitful parent. 
 
 For the attainment of uniformity, let the Chambers of Commerce 
 and the Underwriting communities in each of the principal mari- 
 time states set to work vigorously, and if possible simultaneously, 
 to form a committee or sub-congress, composed of individuals 
 thoroughly conversant with the various questions in dispute ; let 
 them analyse the different regulations and customs which prevail 
 in their respective countries, pointing out the peculiar advantages 
 and disadvantages, and the equity and anomalies of the main 
 features of their own system of General Average. Let a report 
 on the subject emanate from every such committee. All the reports 
 thus issued might then be laid before, and be considered by, a 
 general International Congress, comprising delegates or representa- 
 tives from the above sub-congresses, whose duty it would be to 
 examine, discuss, and adjudicate on the subject, and whose decision 
 on all the questions of general contribution would form the basis 
 of a uniform legislation and codification of this branch of maritime 
 law. 
 
 For my own part I can see no insuperable obstacle in the way 
 of attaining an all but complete uniformity on this subject. In 
 every maritime state the same interests are involve!, the same sea 
 perils are encountered, and the circumstances arising out of each 
 marine adventure are similar in their nature ; and the mutual 
 interest each has in promoting the end in view, coupled with 
 probably the same instincts and notions of justice, will doubtless 
 facilitate and tend to the realisation of the important object of the 
 Social Science Congress in regard to this question. There are, of 
 course, matters of detail arising out of the peculiar nature of each 
 particular case which must ncc^essai-ily, and may safely, be left to 
 tlie discretionary treatment of tlie ndjiistcr ; Imt in so comparatively 
 limited a (lc|»:u-tmciif of uicrcanl ilc usiige, it is smcly iiol a iilopiim 
 idea to Ijclicvo that some assimilut ion, at least of general principles, 
 will be eflccted, and that tliiis the present uncertainty of law and
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 3:3 
 
 usage will bo swept away, and an important advance be made in 
 the direction of a general codification of our whole mercantile law. 
 
 To smooth the asperities and allay the irritations of commercial 
 intercourse — to approximate more closely to sound principle and 
 equal justice in settling the relations subsisting between the dif- 
 ferent parties to mercantile transactions — to arrive at a more 
 definite and uniform system of legislation on matters inseparably 
 connected with the existence of this country as a great maritime 
 power, are assuredly objects worthy of energetic prosecution ; and 
 if by ventilating the various questions, of which the above is 
 necessarily the merest outline, our efforts eventuate in entire or 
 even partial success, this will certainly form not the least important 
 feature of utility which has marked the career and operations of 
 the ' National Association for the Promotion of Social Science.' 
 
 ^Ir. L. R. Baily (Average-stater, Liverpool). In considering 
 tlie points submitted to us in the notice issued by the Association, 
 I will first state how I shall discuss them. I shall state, 
 
 1st. The principles which I consider ought to govern each of 
 the points. 
 
 2nd. The reasons why I think it inexpedient to adhere to those 
 principles on all of them. 
 
 As a means of obtaining a practical result from this meeting 
 I shall then suggest, 
 
 3rd. A plan for attaining the uniformity sought with as little 
 deviation from principle as possible, and means for 
 carrying out that plan in practice. 
 
 1st. As to the principle which I consider ought to govern each 
 of these points. 
 
 (1) As to the damage done to a ship and her cargo by a 
 
 voluntary stranding : this is, I think, allowable in 
 General Average. 
 
 (2) As to the damage done to a ship and her cargo by water 
 
 let in or poured into the vessel to extinguish a fire : — 
 this also, I think, is allowable in General Average. 
 
 (3) As to the damage done to a cargo by chafing and breakage 
 
 in consequence of a jettison : — this also, if unavoidable, 
 is, I think, allowable in General Average. 
 
 D
 
 34 MARITIME LEGISLATION. 
 
 (4) As to tlie damage done to a cargo by discharging it at a 
 
 port of refuge : — tins also, if unavoidable, is, I think, 
 allowable in General Average. 
 
 (5) As to cutting away wreck of masts which have been acci- 
 
 dentally broken: — this should not, I think, be allowed 
 in General Average, for the wrecked state of the masts 
 is the cause of the damage which renders their sacrifice 
 necessary, and it is unreasonable, under such circum- 
 stances, to allow anything in General Average for such 
 a sacrifice. 
 
 (6) As to the expense of warehouse rent on the cargo at a 
 
 port of refuge, and the expense of re-shipping it, and 
 the outward port charges at that port when the original 
 ship carries on the cargo from that port : — they all should, 
 I think, be allowed in General Average. 
 
 (7) As to the damage done to ship, freight, and cargo, by 
 
 carrying a press of sail : — this, I think, should not be 
 allowed in General Average. 
 
 (8) As to the wages and provisions of the crew whilst a vessel 
 
 is delayed by putting into a port of refuge : — they are 
 not, I think, allowable in General Average. 
 
 (9) The contributing values of ship, freight, and cargo should, 
 
 I think, be the values at the time when they become 
 liable for the General Average. 
 
 On these principles I have stated the conclusions only at which 
 I have arrived, omitting the reasons for arriving at those conclu- 
 sions ; because, as you will see hereafter, I do not advise adherence 
 to these principles, and because you may agree with me as to the 
 correctness of the principles themselves, rendering an elaborate 
 proof of that correctness unnecessary. 
 
 I will now consider: 
 
 2nd. Tlic expediency of deviating from the above principles, 
 and will apply it to the points under discussion. 
 
 1. As In I he expediency of deviating from princi'ple on antj 
 point — 
 
 It is not expedient to attempt to adhere to strict principle if 
 the attempt must fail, if it will entail great evil and but small
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. :\r> 
 
 advantage, or if it will afford excuse for gross injustice and cause 
 constant disputes. 
 
 It is expedient to deviate from principle by adopting practical 
 rules for tlie government of all points on which it is practically 
 impossible to agree on facts ; otherwise there will be as many 
 results, in any given case, as there are parties consulted about it. 
 
 To a merchant or shipowner it is, as a rule, of no consequence 
 whether his loss be paid to him as General or as Particular 
 Average, provided it is paid to him. To underwriters as a body, 
 the same, provided they always pay the loss in the same way. 
 The great object is certaintij. 
 
 2. As to the application of these remarlis to some of the points 
 under discussion — 
 
 As to voluntary stranding. A vessel on the point of sinking is 
 run on shore. The damage done to her, and the cargo, by this act 
 is in principle allowable in General Average. So far the way is 
 clear, but now comes the difficulty — what is the damage ? It is 
 reasonable to suppose that the vessel was much strained, and had 
 much water in her, before the act was done, or she would not have 
 been run on shore. Who can define the damage done before, and 
 the damage done by the stranding, especially when it is borne in 
 mind that evidence on this point is obtainable from parties in- 
 terested on one side only, and thus great facilities for fraud are 
 offered ? Under such circumstances is it not better to obtain, by 
 some practical rule, practical certainty combined in most cases with 
 practical justice, rather than by aiming at theoretical equity, to 
 attain only practical injustice in most cases and disputes in all ? 
 
 I would suggest, therefore, in order to obtain uniformity with 
 as little deviation from principle as possible, a practical rule which 
 shall place voluntary stranding on the same footing as accidental 
 stranding. 
 
 For similar reasons I would suggest practical rules which shall 
 make Particular Average — the damage done to a cargo by chafing 
 and breakage owing to a jettison, and the damage done to a cargo 
 by discharging it at a port of refuge ; because the allowance of 
 these losses in General Average opens a wide door for fraud and 
 error, it being assumed in practice, when these losses are allow-
 
 36 MARITIME LEGISLATION. 
 
 able, that all the damage and loss which the cargo has sustained 
 on the vo^-age was caused by the jettison or the discharge. 
 
 Not so as regards the damage done in extinguishing a fire. 
 I do not see any practical difficulty, in the generality of cases, in 
 determinino- what damage was done in that way and what damage 
 was not done in that way. Nevertheless, in order to prevent 
 disputes, I would suggest a practical rule for tliis point also, and 
 for the following reasons : the damage done by the water to goods 
 which are actually on fire is not, in principle, allowable in General 
 Average. It is doubtful whether scorched goods should be 
 governed by the same principle. To prevent disputes, therefore, 
 I would suggest a practical rule, which should admit in General 
 Averao-e the damage by the water to the latter, but not to the 
 former. 
 
 As regards cutting away the wreck of masts accidentally 
 broken, I would suggest to those who differ from me in principle, 
 a similar practical difficulty to that applying to voluntary 
 stranding, viz. : — What is the value at Avliich they are to be 
 allowed? And, influenced by that consideration, I would have 
 recommended a practical rule, excluding this loss from General 
 Average, if I had held differently on the principle. 
 
 As regards wages and provisions for the crew, I cannot, in 
 principle, draw any distinction between them and the wear and 
 tear of the ship during the same period, which last is not recog- 
 nised as General Average in any country, so far as I am aware. 
 1 do not, however, hope for general support in this opinion, and 
 would therefore suggest a compromise by which the shipowners 
 should, during the vessel's stay at the port of refuge, receive in 
 General Average some compensation for this expenditure, which it 
 may be expedient to calculate according to an established scale. 
 
 On IIk' other points I would adhere to principle, excepting as 
 regards the contributing value of freight. 
 
 I can see nothing to justify the custouis that exist in some 
 countries of contributing on half only of the values of ship and 
 freif^ht, of excluding freight altogether fi'om coniribution, or of not 
 deducting freight from the value of the cargo in arriving at the 
 contributing value of that cnrgo. T can see nothing to justify
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 37 
 
 taking any values of ship, freight, aud cargo, but their actual 
 values at the time when they became liable for the General Average ; 
 but as regards freight I would suggest a practical rule. I cannot 
 see anything to justify the custom common in this country of 
 arriving at the contributing value of freight, by deducting from 
 the gross freight, not only all the charges incurred after the 
 General Average act, but also all those incurred before that act, 
 such as the charges at the loading port ; nor can I justify the 
 practice in the English Admiralty Court in salvage suits, of making 
 no deductions from the gross freight, in arriving at the freight's 
 contributing value, but it is not unreasonable to deduct from freight 
 the wages and port charges incurred after the General Average act, 
 and therefore as a practical rule for arriving at the contributing 
 value o^ freight, I would deduct from the gross freight the wages 
 and port charges incurred after the General Average act. 
 
 3. As to the ijlan I would suggest for carrying out these jpractical 
 rules. 
 
 I would call the conclusions we may arrive at ' The International 
 Congress Rules for adjusting General Average,' I would then print 
 them and bring them before the public — i.e. the shipowners, the 
 merchants, the underwriters, aud the average adjusters — and 
 would, if practicable, obtain their approval of them on or before 
 the 1st ]\rarch next, a date which would give time for approval, 
 and amendment if necessary. During this period a paid secretary 
 will be necessary : his salary could easily be raised. On and after 
 1st July next, I would add a clause to policies of insurance and 
 bills of lading, stipulating that ' General Average, if any, is to be 
 adjusted according to the International Congress's printed rules.' 
 There would be no practical difficulty in doing this ; for a similar 
 clause, ' General Average according to English custom,' is even now 
 not uncommon in bills of lading. When the new clause is gene- 
 rally inserted in policies of insurance and bills of lading, it will 
 govern the mode of adjusting General Average, and the uniformity 
 sought will be attained. 
 
 To carry out the conclusions we may arrive at, or those which, 
 on or before 1st March 1861, may be substituted for them, every 
 one who a})proves of them must act energetically for himself, and
 
 38 MARITIME LEGISLATION. 
 
 if, as perhaps may happen, some of the merchants, shipowners, 
 underwriters, or adjusters, before whom the conclusions are 
 brought, do not express any opinion on them, those who do ap- 
 prove of them must act as if the conclusions had been generally 
 approved of, for no reform was ever yet attained by waiting for the 
 action of others. 
 
 As regards the future, I could suggest a permament ' Inter- 
 national Court of Appeal ' for the redress of all other existing or 
 future grievances, but cui hono ? there is not even a reasonable 
 probability that such a court could act. Throughout this paper I 
 have looked to practical results only, and have avoided all theoretical 
 remedies. The practical good must commence noiv, tcliilst ive are 
 together, or it will never come. The evils of the differences now 
 before us are great: let us endeavour to find a speedy practical 
 remedy for them. If we accomplish this, it will not be difficult to 
 find a practical remedy for others. 
 
 P.S. — In suggesting this practical rule for voluntary stranding, 
 I do not propose to exclude the damage done to a ship above tvater 
 in heaving her off, when the expense of heaving her off is allow- 
 able in General Average. There are no great practical difficulties 
 in ascertaining this damage. 
 
 The Chairman hoped that Judge Marvin, of the United 
 States, would favour them with the views of America on the 
 subject. 
 
 The Hon. Judge Marvin, (Delegate of the Chauiber of Com- 
 merce of New York and of the Board of Underwriters of New 
 York) said : I come here, gentlemen, from the city of New York 
 more to listen and to hear what propositions may be brought 
 forward by the various gentlemen concerned in the subject of 
 General Average, than to bring forward any measures of our own. 
 We, in the New World, altliough our commerce is very extensive, 
 have not had the time since we were informed of this meeting to 
 consider these questions as fully as you linve on this side of the 
 water. However, upon receipt oi" tlin circular to the Chamber of 
 Commerce, that body thought it advisable to resi)on(l to the invi- 
 tation, and asked me to at lend in tlu; capacity of its representative. 
 There is a friend, idso. here IVoni IJoston, representing the Board
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 39 
 
 of Trade of that city ; and there is a gentleman likewise from 
 Mobile. None of us are prepared to read any paper on the subject 
 under discussion. We are prepared, however, in the United 
 States to co-operate in any movement that has a reasonable pros- 
 pect of bringing about the object so much desired : the best means 
 of bringing about that plan may be discussed here. I have 
 listened to the paper of Mr. Baily as to the plan of producing the 
 uniformity desired, after we have settled upon the principles. I 
 don't know whether the plan which he suggests might be made 
 effectual by clauses in the policy and bills of lading, binding the 
 parties to submit the question of settlement to the rules prescribed 
 by this Glasgow meeting. If that should be the idea acted upon 
 and adopted by this convention, we ought to deliberate very calmly 
 and consider the principles laid down very maturely, and not draw 
 up rules with great haste and without the fullest consideration. I 
 myself, however, see difficulties in the way. It is true that clauses 
 inserted in the policy and bills of lading will bind the parties to 
 the contract : but they will bind no one else. Some vessels in the 
 United States are n6t insured at all ; and as to them, they would 
 not be bound by any policy of insurance they were not connected 
 with. They might, perhaps, be bound by the bill of lading, but 
 they might stipulate otherwise : their rights and remedies would 
 be had upon the law of the land — they would appeal to their own 
 judicial tribunals for justice. Mr. Harper, in his very interesting 
 paper, which I listened to with great pleasure, alluded to the idea 
 of legislation on the subject, and, to go a little into detail, my own 
 view on that subject is this : — That this meeting ought not to 
 come to any definite conclusion as to what the rules in General 
 Average shall be, but that this congress shall provide the means of 
 having these questions referred to some of the able jurists of this 
 country, who should take into their counsel all the advice they can 
 obtain ; that those gentlemen, within the course of a year, should 
 draw up the great doctrines of the law of General Average ; that 
 they shall define, in the form of a bill to be laid before Parlia- 
 ment, what is the meaning of the term ' General Average,' and 
 what cases are to be included within the definition of General 
 Average, and that when a case is determined to be a case of General
 
 40 MAEITIME LEGISLATION. 
 
 Average, then to specify, as near as well can be, what expenses 
 shall be brought within it. Take a case : if a ship has to put into 
 a port for repair, and supposing it to be a case of General Average, 
 they shall determine whether the wages and provisions shall or 
 shall not be one of the charges that make up the General Average. 
 After those rules have been made up by the experience and know- 
 ledge of the gentlemen — after the language has been fully weighed 
 by them — then I would suggest the idea of printing them, and 
 the lines should be far apart to allow facilities for amendments. 
 Then these should be sent to all parts of the world ; and I will 
 promise that in Boston, New York, and New Orleans any propo- 
 sitions coming from this side of the water will receive their con- 
 sideration on that side. We will in America take up the rules 
 that are furnished to us, and amend according to our view of 
 the matter, by introducing alterations in the phraseology as we 
 think necessary, or by the addition of entire sections, as might best 
 conform with our views. They should be sent to France, Holland, 
 and other commercial countries, and the people there will make 
 them conform to their opinions. In this way you will collect the 
 opinions of gentlemen who have had time for deliberation, and 
 who are not prompted by the spur of the moment to give an 
 opinion they do not, after deliberation, agree to. Then these 
 papers should come back to London or Liverpool : the alterations 
 and amendments are considered, and with the experience they 
 have obtained and the information they have before them, the 
 gentlemen will Ije able to draw u]) a Bill to be brought before 
 Parliament, and to be made the law of Great Britain, A Bill 
 thus matured by the experience of learned jurists and commer- 
 cial men from the whole commercial world, I am inclined to 
 think, iiiitwilhstanding the remarks of Mr. Harper to the contrary, 
 would pass Parliament. Suppose it should become the law of a 
 gi-eat nation like Great Britain, whose commerce is in every sea, 
 and whose law has its influ(Mice all over the world, I do not think 
 there would be any great difTiculty in getting such a law enacted 
 by the Congress of the United States. There would not, I think, 
 be much difficulty in Franco and Holland. In this way, and by 
 legal enuctmejits, it seems to me, iliat in the course of three, or
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 41 
 
 four, or five years, something like a great degree of uniformity 
 may be produced on this subject. In this way you would arrive 
 at a considerable degree of uniformity as to the definition of tlie 
 general law, but utter and entire uniformity in the application of 
 law to individual cases is hopeless, in my judgment. That, we 
 cannot expect as long as the minds of men are unlike, and as long 
 as different minds will take different views of the same question. 
 Absolute uniformity and certainty do not belong to poor fallen 
 humanity. Absolute uniformity in practice we cannot expect ; 
 but wo may certainly expect a greater degree of uniformity in 
 the definitions of the law. Now take the case that w^as put by 
 Mr. Harper. A ship sails from New Orleans laden with cotton, 
 she puts into a port in distress for repairs ; those repairs are made, 
 and she proceeds to Livei-pool. In that case the wages and pro- 
 visions of the master and crew during the time of detention will 
 not be paid at Liverpool ; the expenses will fall upon the shipowner. 
 But let the same ship be bound for Amsterdam, with the same 
 number of bales of cotton, and the provisions and wages would be 
 allowed : it would be a case of General Average. So well is this 
 understood, that masters of American vessels, when they have 
 been disabled, congratulate themselves that they are bound to 
 Amsterdam and not to Liverpool, because in the one case they 
 would be allowed provisions and wages, and in the other they would 
 not. In cases of temporary repairs to enable the vessel to carry 
 on the cargo, there would be General Average in Havre and in 
 America — not so in Great Britain. We are more inclined in the 
 United States, in our general system of law on this subject, to be 
 in accordance with the system prevailing upon the continent of 
 Europe than with that which prevails at Lloyd's. The great mass 
 of our common law came from the parent country, from England ; 
 but we have adopted many of the principles and ordinances of 
 commercial law which are not particularly British. In the great 
 international laws of the Avorld we have been more inclined to 
 approve of the equity and justice of the continental rules than we 
 have been of those which have been established at Lloyd's, either 
 by arbitrary adjustments or by usage. In the principles pre- 
 vailing on the Continent, the general maritime law has its foun-
 
 42 MARITIME LEGISLATION. 
 
 dation in the great system of Roman civil law ; and there never 
 was a system so just in its details, so perfect in its provisions for 
 the administration of justice between man and man, as the Roman 
 civil law. Coming down from the Romans, and revived in the 
 middle ages, it was repelled by the spirit of liberty in England, 
 because it favoured despotic government ; but, between man and 
 man, the principles were sound and excellent ; and the more the 
 civil laws of Rome are studied, the more are our minds imbued 
 with the principles of justice which characterised them. Being 
 relieved from the trammels of the English system, our law on the 
 subject 01 General Average is found to be, in some instances, in 
 conflict with the usages that prevail at Lloyd's ; and our practice 
 will be found to conform more nearly with the practice and usage 
 that prevails throughout the continent of Europe. Having now 
 in this very rambling way addressed a few words to you, I submit 
 to listen to what may be said by the gentlemerr present. 
 
 Mr. J. Russell Bradford (Delegate of the Board of Trade 
 Boston, Mass.) said : I have the honour of standing here to repre- 
 sent the Board of Trade of Boston. It is quite recently that I 
 knew of my appointment, and until the last few days I was very 
 uncertain whether my health would permit my being here. My 
 friend from New York has in his closing remarks alluded to our 
 laws as being based upon the old Roman law. Now we in 
 America are inclined to think that, where there has been any 
 deviation from the Roman law, that law was not at fault, but 
 British practice is an innovation, and should be changed ; and 
 especially in Massachusetts w^e think we stand very nearly in 
 accordance with the old Roman law. In the voluntary stranding 
 of a ship no one with us supposes that any other damage is to be 
 contributed for but the actual damage occasioned by the stranding. 
 As to the damage caused to ship and cargo in extinguishing fire, 
 the damage to ship by scuttling is allowable b}^ English rule. We 
 allow the vjholr, damage done by water in extinguishing fire ; but 
 wo distinguish verj' closely between the damage caused by fire and 
 that caused by wat<'r: W(^ allow the (laniagc done hy walcr soldi/. 
 The wages and provisions we allow. Carrying a press of sail we 
 do Tiot allow : a decision in a case in the Sn])reine Court of the
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 43 
 
 United States was against it : the sails were used for their legiti- 
 mate purpose, and, if lost by unusual press of wind, ought not to 
 be allowed in General Average. In the contributing value of ship, 
 freight, and cargo we follow the English rule, except with regard 
 to the freight. I would say a few words in regard to the carrying 
 out of any measures that we may arrive at here. I liked the 
 remarks made by Mr. Baily, and it appears to me that the hints 
 he gave, if followed, may attain the result desired much more 
 speedily than my friend who last spoke suggests would be the 
 case. I think well of that proposition, but I have some doubts of 
 the passing of a law by our own Congress. It seems to me that 
 the best way of meeting the matter is by a bill of lading, and to 
 treat this subject as if there was no insurance in the world, taking 
 as General Average that which is simply justice between man and 
 man, for the matter of insurance will certainly adjust itself; and 
 the great object we ought to have is to try and establish what is 
 justice between man and man. 
 
 Mr, Daniel Wheeler (Representative of the Chamber of 
 Commerce of Mobile) said he was glad of the opportunity of 
 seeing the gentlemen present. Notwithstanding that the gentle- 
 men from America had read no paper, there was evidence in the 
 speeches which they had made that they had studied the subject. 
 He was sure the United States of America, being the second 
 commercial nation in the world, would willingly support the desire 
 to have a uniform system of Average that would be just to all 
 nations and to all people. The usage of the State of Alabama 
 differed from that of New York and Boston ; and in Mobile, which 
 is in that state, and, though comparatively new, had a large com- 
 merce, they were exceedingly anxious to conform to the best 
 usages of the great commercial nations. With regard to the plan 
 of arriving at a uniform system, he differed from the gentlemen 
 who had just spoken. He would look at it as a commercial matter, 
 not as a national one. The laws were sufficient already, and he 
 thought the movement should commence with the Chambers of 
 Commerce of the various great commercial emporiums. He coin- 
 cided with the gentleman from Boston that a much less time than 
 four or five years would bring round a uniform system of Average,
 
 44 MARITIME LEGISLATIOX. 
 
 and he would be very mucli in favour of that plan if it should be 
 proposed. Chambers of Commerce were composed of practical 
 and commercial men, immediately interested and concerned in the 
 settlement of the question ; and he thought the movement should 
 emanate from the Chambers of Commerce for the different com- 
 mercial emporiums. 
 
 The Chaieman. The resolution which I see here is ' that the 
 damage done to ship, cargo, and freight, by running a ship on 
 shore ' — that must mean a voluntary running the ship on shore. 
 How would this be ? I had the misfortune to be in a wreck on the 
 coast of Yarmouth sixty years ago, I am sorry to say. Coming 
 from Norway, after taking a pilot on board, we struck on a rock ; 
 and although it was in the middle of February, we had calms and 
 very mild weather, and luckily for us that excessively moderate 
 weather continued. Lord Stuart de Rothesay and I were together, 
 and the first thing that happened to us was the crunch which 
 we heard in our hammocks in the morning, before we got out. We 
 went to the pumps, but all our efforts were vain. We found the 
 rudder had been carried away, and there was a hole in the bottom 
 sufficient to sink the vessel. She was water-logged in the course 
 of three hours ; but, luckily, the cargo was of timber, and she could 
 not sink. Suppose this had happened : suppose she had not been 
 laden with timber, — there she was in deep water, and with that 
 hole in her bottom she was quite certain to sink if she had not been 
 run on shore. Now, suppose she had not had a cargo of timber, 
 and the Noi'wegian captain had run her ashore, would that have 
 been a voluntary act — running her on shore to save her from being 
 sunk ? And another risk was this : — we remained off there for 
 eiglit-and-forty hourG, and could not get any boat ; and then, 
 though we were quite safe unless the wind had sprung up — and in 
 the middk; of February the probability was that a great wind would 
 spring up either from the shore or from the sea, it did not signify 
 which — but if a wind had sprung up she would have gone to pieces 
 if she had been driven out to sea, or if she hod been driven on shore. 
 Would not the captain have been justilicd in lliat case in run- 
 ning the ship on shore to avoid these risks? i fr had two risks 
 to avoid : llit; wind getting up ;iii(I (lri\iiig licr out to sea or on
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 45 
 
 shore ; and supposing she had not been timber-laden she would have 
 sunk. Would it have been voluntary stranding to run her on shore 
 to avoid sinking ? I cannot see that it would. The proposition is 
 that the damage caused by running on shore should be General 
 Average ; that would only be a question of fact. 
 
 Mr. Laurence R. Baily then moved the first resolution : ' That 
 the damage done to ship, cargo, and freight, by running a ship on 
 shore (excepting the damage done to the ship above water in 
 heaving her off, when the expense of heaving her off is allowable 
 in General Average) shall not be allowed in General Average.' He 
 did not know whether he ought to allude to the noble lord's remarks 
 as to voluntary stranding, but perhaps it would be as well to do so. 
 His lordship demurred to calling a ship run on shore,, when she 
 was on the point of sinking, a voluntary stranding. What is 
 ' voluntary ' ? Anything which a man does himself from choice is 
 ' voluntary.' If a man were standing on a line of railway, and a 
 train were coming up, he must, as a reasonable man, jump off the 
 line; but still, if he choose to abandon that character, he can re- 
 main on and be killed ; and therefore his jumping off would be a 
 voluntary act. 
 
 The Chairman. Suppose a highwayman comes up to you and 
 says, ' Give me your purse or your life,' and you give him your 
 money to save your life, would you consider that a voluntary act ? 
 
 Mr. Baily. Most certainly I would. Everything I do, which 
 I can either do or leave undone, is a voluntary act. I call an act 
 which a reasonable man performs, a voluntary act, although, if he 
 continue to be a reasonable man, he must perform it. For instance, 
 when I am on a line of railway, and jump off to save my life, 
 jumping off is a voluntary act. If I am going to the bottom of 
 the sea with my ship, and to save myself I cut away her masts, 
 cutting away the masts is a voluntary act. When there is a choice 
 of alternatives, it is clearly voluntary when you choose between 
 them. Now as to the injury done : until a thing actually happens 
 there is no certainty that it will happen. That sinking to which 
 Lord Brougham alluded, might, for aught we know, have been pre- 
 vented ; and the railway train might have been stopped before it 
 reached me. If, in such a case, you convert a doubt into a positive
 
 40 MARITIME LEGISLATION. 
 
 certainty, you have done the shipowner an injury. Whenever you 
 convert a doubt — and a moral certainty, even, is but a doubt, i.e. 
 an extreme degi-ee of probability — into an actual certainty, and 
 that certainty involves a loss, you do a man an injury. If you run 
 a ship on shore, and that act occasions injury which is clearly 
 traceable to the voluntary stranding only, that is an injury which 
 it is possible might have been avoided. But, as I remarked in the 
 paper which I read before the meeting, the practical difficulties are 
 so great, that, however correct in theory it may be to allow such 
 damages, I would in practice reject them from General Average ; 
 for when a ship is run ashore much water is already in her, and 
 she and her cargo have both sustained much damage previously. 
 By running her on shore these injuries maybe increased ; but who 
 in the world is to say what that increase is ? Is it not better to 
 waive your principle and make a practical rule to prevent litigation ? 
 Principle even includes some only of the damage sustained by ship 
 and cargo, for it excludes the damage which would have happened 
 if the ship had not been run on shore. Referring to some remarks 
 by some of the gentlemen present, that in practice the loss was not 
 allowed, even in those countries in which the principle of allowing 
 it was recognised, and therefore the abuse of principle was not to 
 be feared, Mr. Baily added : As a matter of fact, I differ from 
 some of the gentlemen who have spoken of the practical working 
 of adhering to principle, for I have actually seen adjustments of 
 voluntary stranding in which the whole ship and cargo have been 
 allowed in General Average. 
 
 Tup: Chairman. You consider voluntary to be that which con- 
 verts a moral certainty into an actual certainty ; and, to revert to 
 the case of the highwayman, when you run the risk of your life by 
 refusing to give up your purse, and convert the moral certainty of 
 his killing you into an actual certainty : that is suicide on your part. 
 
 Mr. Baily. Yes. I merely made these remarks to bring the 
 question Ijcfore you, in order that anybody who has anything to say 
 on the resolution may do so ; and I now beg formally to move the 
 resolution. 
 
 Mr. Davison asked whether they could come to any vote on the 
 questions in a mixed coiii])any sucli as that present.
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 47 
 
 Mr. Rathbone explained that voting papers would be sent 
 round, on which gentlemen should write their names and the bodies 
 they represented, if any ; that the names would be printed, so that 
 the voting would not be merely numerical, but would be considered 
 in respect of the weight of the names voting for or against any 
 proposition ; and that he hoped no gentleman would vote except 
 those who had given some time and attention to the subject. 
 
 Dr. Rahusen, of Amsterdam, said : Voluntary stranding was 
 a measure justified only by extreme necessity. They must not for- 
 get that in the various commercial codes which admit voluntary 
 stranding as General Average, as in the French, Dutch, and other 
 codes, they had done so because, when the peril was extreme, there 
 could be nothing more done to save the ship and cargo. But, in 
 determining what ought to be allowed for this voluntary stranding, 
 you must distinguish between the damage sustained before the 
 voluntary stranding and the damage which is the direct consequence 
 of the stranding. Before the ship was run ashore she might be in 
 a very decayed or damaged state ; only the damage that could be 
 ascertained to be the direct consequence of the stranding could be 
 allowed in General Average. We are told here that the English 
 law is much better than the American, French, and Dutch laws ; 
 but they had heard that morning from the Lord Advocate that, 
 theoretically, a law might be good, but practically bad. A theory 
 might be correct and the practice inexpedient. 
 
 Mr. Wertheim said, when they considered the history of the 
 Dutch laws, it was certain that they founded the first principles of 
 their commercial law on the laws which' they received from the 
 Roman Empire ; and a voluntary stranding would be contributed 
 to by ship, cargo, and freight. 
 
 The Chairman. Then freight would pay as well as ship and 
 cargo ; that would be General Average. 
 
 Mr. Wertheim. That principle is laid down in 699 of the Dutch 
 Commercial Code. 
 
 Mr. Bradford thought the resolution went too far. The vessel 
 is not in a sinking condition in every case of voluntary stranding; 
 in a great majority of cases where there was voluntary stranding, 
 there was dragging or hedging towards the shore, where there
 
 48 MARITIME LEGISLATION. 
 
 miglit be rocks ; and the master clioss, instead of holding on witli 
 the anchor, to sacrifice the safety, whatever it was, and run the 
 ship on shore. That was clearly the act of man — the judicious act 
 of man. But the anchors might hold, for it was nothing unusual 
 to brinw up a ship after she had dragged ; the master sacrificed 
 that chance, and ran her on the strand. If he damaged his vessel 
 and then ran her on shore, and said the cargo and freight should 
 contribute for the value of the ship, he could not allow that ; he 
 never knew that to be allowed in General Average. The ship had 
 no value, and where was the loss ? There was a case in which a 
 ship was tight, and was going towards the shore ; still she might 
 have held on ; but the master, seeing a sandy beach, ran her so 
 high and dry that she could not get off. Tlie Court had decided, 
 and the English adjusters had taken the same ground, that where 
 there was a voluntary stranding they must pay for it. The master 
 gave up a chance of safety, perhaps a good chance, and ran the 
 ship on shore. 
 
 Mr. Rathbone did not suppose that the captain of that ship 
 intended to run her up so high that she could not float again ; and 
 that he only chose one kind of danger instead of a greater danger. 
 The captain considered that, in running the ship on shore, he put 
 her into greater safety than leaving her where she was. He thought 
 there was no voluntary saci'ifice in that case, and that the captain 
 did the best he could for the ship, supposing there had been no 
 cargo or freight whatever. 
 
 Mr. Bradford said they considered it was precisely the same 
 as cutting away the masts. There might be a necessity for it, and 
 they allowed it ; and so also in jettison. 
 
 Mr. Harper thought it should always be considered that the 
 master made a sacrifice in electing to run his ship on shore ; he did 
 make a sacrifice, and therefore the value of the ship should be con- 
 tributed for. 
 
 Ml{. Bailv said tin- resolution was that the damage which they 
 were discussing shouhl ant Ije allDwcd in (icni'j'al Average. He 
 merely stated his own reasons for the vote he intended to give. 
 Although he considered the damage done in this way was in theory 
 allovvublf in General Average, yet from his practical experience he
 
 INTERNATIONAL LAW OF GENERAL AVj:iiAGE. -J9 
 
 was of opinion that tlie disputes arising from treating it in that 
 way in practice would be so numerous, that the little theoretical 
 good that would be got Iroin trying to follow principle would be 
 more than counterbalanced by the annoyances and inconveniences 
 the attempt would occasion, because they had to deal with facts, and 
 facts were not easily ascertained in such cases. He would suppose 
 a case in which the ship had been run ashore and the damage was 
 to be allowed. Let there be twenty adjusters consulted as to the 
 amount of the General Average, and no communication between 
 them, and he would undertake to say that no two out of the twenty 
 would agree in their adjustments of the case. The facts on wliich 
 they had to decide were hypothetical, and no one could determine 
 the exact amount of damage caused directly by the stranding. 
 Another difficulty was this : the evidence was all on one side, that 
 representing the ship. On the other side there could be nothing 
 but argument. So, whatever they might think of the theory, it 
 would be better to give up that theory on the ground of expediency. 
 Mk. James Broun considered that if upon this resolution was 
 intended to be founded an application for a legislative enactment 
 they ought to oppose it ; but if it were merely a recommendation 
 to put a clause in the bill of lading, he had no objection to it. If, 
 however, it was to be made law, it was, upon the very face of it, 
 in the teeth of the principles upon which General Average was 
 founded, because it was a voluntary act in law where the will of 
 man interposed. But where the will of man interposed for the pur- 
 pose of saving ship, cargo, and freight, that was General Average ; 
 and it was the policy of the law from the beginning, that if people did 
 not make it a contributory loss, people would not make the sacrifice. 
 In the case of goods thrown overboard, the theory was that as those 
 goods were thrown overboard for the safety of all, a sacrifice was 
 made for the common benefit, it was a common contribution. In 
 cases of running the ship on shore, the captain would alwa3\s con- 
 sider whether other people would sustain the damage done to the 
 vessel ; but when he knew that there would be no contribution, he 
 had no interest in doing so. Of course those who knew the prac- 
 tical difficulties of making up adjustments had all the facts before 
 them, and ought to know whether they wore insuperable.
 
 50 MARITIME LEGISLATION. 
 
 Mr. Harper said when n ship was run ashore all parties were 
 at an equal risk ; there was no selection for the ship and cargo. 
 They were all exposed to an equal danger in the hope of saving 
 all. Thev were all — ship, cargo, and freight — put to an equal 
 risk, a great risk, in the hope of saving them from a greater one. 
 
 Hon. Judge Marvin would suggest an amendment. In theory 
 and principle the resolution was wrong ; and he did not know 
 why they should give up a good principle when they might avoid 
 the. inconvenience. Suppose they had an amendment something 
 like this : ' Stranding of ships shall be deemed, irrimd facie^ to be 
 involuntary, and not the subject of General Average; but if it 
 shall appear that the case is one of intentional stranding with the 
 view of the safety cf all, then such a case does come within the 
 principle of General Average, as an exceptional case.' 
 
 Mr. Baily observed that in practice every case that came 
 before adjusters was the exception. When a ship is damaged, the 
 only evidence that can be obtained is one-sided. 
 
 The Chairman. Suppose we take it in this way : that the 
 damage done to ship, cargo, and freight, by running a ship on 
 shore, shall not be allowed in General Average, although it was 
 done for the benefit of ship, freight, and cargo. 
 
 Mr. Baily. Yes. 
 
 After some conversation, the first resolution, as originalh" pro- 
 posed, was put to the vote, and negatived by a majority. 
 
 An amended resolution was afterwards carried upon this subject 
 on the third day. 
 
 Hon. Judge Marvin then proposed the second resolution : 
 ' That the damage done to ship, cargo, and freight, in extinguish- 
 ing fire, sliall be allowed in General Average.' 
 
 Dr. Haiiusen suggested that the resolution should be altered to 
 the ' damage done by water,' as that would make the meaning 
 more clear. 
 
 Mr. Baily thought that if they confined it to tlu; damage done 
 by water, it would still leave tlie question unsettled, for there 
 would still remain the; damage ddiic in getting at the fire, in order 
 to extinguish it: such as cargo thiown overboard, breaking down 
 a caljin, ^c.
 
 IXTEUNATIONAL LAW OF GENERAL AVERAGE 51 
 
 Mr. Richards objected to that being cliurged to General 
 Average, on the same ground that he objected to the resolution on 
 voluntary stranding. If the fire was in one part of the ship, and 
 cargo that could be readily got at was in another part, they would 
 take the goods out of another batch not affected by fire, and put 
 them into lighters : but the damage done by water poured upon 
 the fire was purely accidental, and the parties affected should treat 
 it as Particular Average ; and he saw no reason why they should 
 change the system. 
 
 Mr. Baily, referring to some remarks that liad been made 
 that injury by water in such a case was not a sacrifice, as the ship 
 and cargo on fire would have been lost but for the water, said they 
 never had a General Average act, excepting when the ship was 
 brought to a state in which it was supposed that she would be 
 lost. On that principle, masts cut away should not be allowed ; 
 for, if the vessel were going to the bottom, cutting away her 
 masts, and thus saving her, would be a positive benefit to her. 
 With reference to Mr. Richards's remark about craft takinar a 
 portion of the cargo into safety, that must be an accidental circum- 
 stance, not to be dealt with as a matter of princi]3le. When a 
 fire was raging in a ship, they had to pour water into her as a 
 means to put it out ; and if they injured other portions of the 
 ship's cargo by so doing, surely they had injured the owner of that 
 property, and as they had done so for the general good, all the 
 property that was saved ought to contribute in proportion to the 
 benefit it had derived from the General Average act. If there 
 were any little difficulties in the matter, it was better that they 
 should have a general rule. It was undoubtedly the custom to 
 exclude it in this country, but it was not so in foreign countries. 
 In America and on the Continent he should say that, as a rule, 
 they all allowed it, although there might be a few exceptions. He 
 did not see any practical difficulties in getting at the damage done 
 to ship and cargo by water and by fire. 
 
 Mr. Leathley said he thought it was due to the meeting to 
 state the reasons why he did not wish to vote. Lloyd's, with which 
 he was connected, wished well to this movement ; but thev he 
 believed, considered it premature to enter into the discussion of 
 
 E 2
 
 52 MAT^ITIME LEGISLATION. 
 
 the details ; and not having from them any commission to assent to 
 or dissent from any resolution which should be proposed, he ought to 
 abstain from voting. In anything he did, he wished it to be under- 
 stood that he spoke simply in his individual capacity. He would 
 adopt the suggestion which Judge Marvin had made : he would 
 take into consultation the best advice he could possibly obtain — 
 the most eminent men, persons whose education and habits entitled 
 them to form opinions — taking a comprehensive and enlarged view 
 in general, as well as particular cases. That being his position at 
 the present time, he did not propose to give any expression of 
 opinion, either as an individual or as representing the Committee 
 of Lloyd's; though at the same time heAvished the movement well, 
 and hoped it would effect the result aimed at. No doubt it would 
 take some time to produce any practical result, but so must every 
 movement of this kind — no reforms were ever made in a day, and 
 this was not a reform which was likely to occupy a very short time 
 before it was effected. 
 
 Mr. Kathbone observed that of course no one wished to inter- 
 fere with Mr. Leathley's judgment ; but many of the gentlemen 
 present had given full consideration to such questions in different 
 countries ; and he doubted whether such an assembly as that 
 present had met for the same purpose before. They were gentle- 
 men whose opinions were of great importance, and he thought it 
 was of the utmost value to have expressed the opinions of Antwerp, 
 Amsterdam, Bremen, and America, even if they did nothing more. 
 
 The motion having been passed by a majority, and the time 
 for rising having arrived, the section adjourned until the following 
 day. 
 
 Wednesday, Scj^temher 2G. — Lokd Neaves prc^klinq. 
 
 The CiiAiiiMAN, in opening the proceedings, briefly explained 
 the business whicli had been transacted at the i)revious meetino". 
 and said it was of course understood llmt llic c)iily object of the 
 resolutions was to ascertain, as a matter of fuel, I lie predoiniuant 
 feeling and generally prevailing sentiment among those who were 
 entitled to give an opinion on flio matter; and where there were
 
 INTEllNATIONAL LAW OF GENERAL AVEliAUE. 53 
 
 gentlemen assembled from all parts of the world, it was important 
 that all their opinions should be ascertained, so that due effect 
 might be given to them. If some gentleman would be so kind as 
 to read the third resolution to be proposed, then he would be glad 
 to hear anything that any gentleman had to say with regard to it. 
 
 Mk. Rath hone moved, p-o forma, the third resolution : ' That 
 the damage done to cargo by chafing and breakage, resulting from 
 a jettison of a portion of the remainder of the cargo, shall not be 
 allowed in General Average.' 
 
 Mr. AV. J. Lamport, in the special interest of the shipowner, 
 asked them to pause before they agreed to such a resolution. The 
 question was whether the loss should fall upon the owner of the 
 individual interest — i.e. be a Particular Average — or whether it 
 should be a general contribution. There had been a disposition in 
 some degree to adopt general principles by which practical expedi- 
 ency might be gained ; and the question was, whether it was pos- 
 sible correctly to ascertain in an individual case whether the loss 
 was particular or general ; but with regard to the present resolution, 
 he would remind the section that it would be absolutely necessary 
 in every case to decide whether the chafing was the result of im- 
 proper stowage or of a jettison ; the question not being whether 
 it be not a loss to fall on the individual interest or whether it be 
 made good by general contribution, but whether, in order to prevent 
 the trouble of ascertaining what the real facts of the case are, the 
 burden of proof is not to be thrown on another class of people, the 
 shipowners. The result of adopting that resolution would, in 
 almost every case, be to throw the loss upon the shipowner unjustly. 
 Could they ascertain the cause of chafing ? The supporters of 
 this resolution could not do so with anything like certainty : it 
 might have arisen from improper stowage or from a jettison ; and 
 the only change effected by the resolution would be to throw the 
 onus of proof from one set of shoulders to another. 
 
 The Chairman inquired whether, supposing such and such 
 damage did actually result from a jettison, was there any question 
 as to the principle ? 
 
 Mr. Baily. Some gentlemen near me dispute the principle. 
 
 The Chairman said the question was whether they would give
 
 54 MARITIME LEGISLATION. 
 
 up the principle on an ascertained statement of facts, or would the 
 difficulty of di-awing the line induce them to waive the principle 
 altogether ? 
 
 Mr. Leathley thought there was one thing absent in the 
 statement of facts which was an essential element in General 
 Average, and that was the selection of some particular thing for 
 destruction for the general benefit of the parties concerned. In 
 the present case there was no intention to injure certain goods ; it 
 was simply an accident. The same principle ran through the whole 
 spirit of English jurisprudence, and, he contended, correctly so. 
 There was an absence of any intention to injure the property. 
 There was another thing which, as a matter of principle, ought to 
 be present, which was certainty. AVhen a person had sustained 
 injury it ought to be shown that the injury had been actually sus- 
 tained ; but when it was a question of chafing it was impossible 
 to show when and how and where it had occurred ; it might be 
 chafed at one time or at another. The whole thing was involved 
 in ambiguity, which, he contended, ought to withdraw it from 
 General Average. 
 
 The Chairmax. The question involved is — Is it the result of a 
 jettison for the general good or for a part ? 
 
 Mr. Leathley. I deny that it is a certainty. There may be, 
 and sometimes is, a chafing after a jettison, but it is purely inci- 
 dental. 
 
 Mr. Harper. But the master contemplates the possibility. 
 
 Mr. Baily said there was a particular way of stowing a cargo 
 by which the whole was kept steady ; and if the master took out 
 tlie wedge that kept the goods fast, and thus permitted them to 
 move about, the natural consequence was that, having loosened 
 them, they would rub up against and chafe one another. This 
 natural expectation of what would h!ip])cn is followed in the case 
 before us by the fact lliat it did li;ip|Mii. If a mast were cut away 
 ;iii(l ill its full knocked down another, thost' wlio support this reso- 
 Jution on principle would allow the second mast ; and he therefore 
 could not sec, if thf\y admitted I hat the chaft; was (he unavoidable 
 consequence of tlirowin;/ o\crl)o;ir(l a ])orti(iii of the cm-go, liow 
 they could resist on i)riiiciplf th<- allowance ot" tiie lo.js in General
 
 INTERNATIONAL LAW OF OENLIJAL AVKKAOE. 55 
 
 Average. But there were several practical difficulties. The mere 
 fact that the wedge was taken out, aud that the dialing happened 
 from it, was not sufficient to justify tlie allowance, if the loss could 
 have been arrested, prevented, or checked. If you throw on an 
 individual the responsibility of clearing himself, you get nearer to 
 truth in practice than when you spread the loss over a large body. 
 If the shipowner should clear himself in such a case, the practical 
 rule will throw the loss on the underwriter of the goods chafed. 
 The object of the rule was not somuch to throw the absolute 
 responsibility or the difficulties of the case upon the master as to 
 get at facts. 
 
 IVIr. W. J. ToMLiNSON. Are we trying a question of principle 
 or expediency ? 
 
 Mr. Ratiibone. The questions have all been put both upon 
 principle aud expediency. 
 
 The Chairman. Where a resolution arises it may be supported 
 or opposed on two grounds — on principle, or on the ground that, 
 even supposing it to be consistent with principle, it is not expedient, 
 from the difficulties of the investigation or from other inducements, 
 to adopt it. 
 
 Mr. Tomlinson said one of the questions settled yesterday was 
 on principle, and another on the ground of expediency. With 
 reference to the resolution — if a cask were removed from the cargo 
 and the next was uninjured by chafing, was it right that the ship- 
 owner should be made responsible for that ? Was the shipowner 
 to be made liable ? No, certainly not. His own opinion was quite 
 clear, both as to principle and to the expediency. 
 
 Mr. Richards said he quite agreed with the resolution in ftict 
 and in expediency. Unless there was a limit drawn as to what 
 General Average was, they would get into interminable confusion. 
 In the case of jettison of goods, that was of course a direct act, 
 and of course General Average, but the consequence of that, the 
 derangement of the cargo, ought not to follow as a General 
 Average act. If it was meant to do so, there was no knowing to 
 what extent it might go ; and no line could be drawn unless you 
 drew it between the immediate and direct, and the consequential 
 and inferential result of the action. The jettison was a direct act,
 
 56 MAIIITIME LEGISLATION. 
 
 and was therefore General Average : tlie injury caused by the 
 derangement of the ship's cargo was a secondary consequence, and 
 therefore ought to be borne by the owners of the specific goods. 
 
 Mr. Leathley, taking up the argument of ]\lr. Richards, asked 
 where this liability as to consequential damage was to stop. Cargo 
 would deteriorate to a certain extent by detention at a foreign port. 
 He had known tea depreciate in value, to the amount of a farthing 
 a pound, in consequence of detention. If the line was to be 
 drawn anywhere, why not draw it between direct and secondary 
 consequences? "When articles were selected for the purpose of 
 sacrifice, all well and good ; but when you went beyond that point 
 the loss might be traced to inferential consequences, and it was 
 impossible to make any selection in that case. 
 
 Mr. L.uiroRT thought that wliere the consequential damage 
 was uncertain there should not be General Average ; where it was 
 certain, it should be General Average. If the chafing of goods 
 was the certain and undoubted consequence of the jettison, then, 
 he said, in principle it ought to be the subject of General Average. 
 The question was as to the uncertainty. As a shipowner he was 
 perfectly aware, from practical experience, that it was considered 
 necessary, in order to relieve the shipowner from responsibility, 
 that he should be in a position to prove that the damage did not 
 occur from his default. As a matter of practice the onus of proof 
 was undoubtedly thrown upon the shipowner. He would prove 
 that the damage to tlie goods did not arise from improper stowage. 
 Then wliat did it arise from ? Of course from tlie jettison, and the 
 cliafing liaving ccrfaiiily arisen from Iho jettison, the principle 
 refjuired that it sliould be made good by general contribution. 
 Tliere were peculiar kinds of cargoes whicli might be almost 
 entirely lost by chafing, and il" llir loss was undoubtedly ascertained 
 as ilif ciM-l.'iiii conscrjucnce of IIm' jrllisiui, wliat distinction was 
 tliero btlwccn the cask thrown overboard and the cask broken in 
 the hold and the contents leaked out? Ivieli was the direct and 
 consequent loss of the jettison, iiikI oii^lii lo iMlow llie same rule. 
 
 Till f 'llAIK.MAN suggested wlirtlier llic line nilnlit imi. lie drawn 
 fil aiK.l her place, for to djaw il lietwceii diicel and eonse(juential 
 wa:- not easy — whether i( uiuild not do, occasioned liy the jettison.
 
 INTKltXAIlONAL LAW OF GENERAL AVEKAGE. 57 
 
 notwitlistanding tliat the cargo was previously well stowed, and 
 notwitlistanding the jettison every care was taken to keep it all 
 right, but that which was the result ard undoubted consequence 
 of the jettison. 
 
 Hon. Judge Marvin asked whether upon a policy of insurance 
 upon cargo the underwriter would be liable for the breakage of 
 cargo caused by the jettison. 
 
 Mh. Leathley replied that certainly he would be bound under 
 the policy of insurance. 
 
 Hon. Judge Marvin thought, if the chafing and breakage 
 were the immediate result of the jettison, it should be allowed ; 
 but if it were not tlie immediate consequence of the jettison, or 
 if it were caused by the neglect of the ship-master, it should not 
 be allowed. As the resolution stood, he would be compelled to 
 vote against it ; but he hoped the words ' not immediately result- 
 iusf ' would be introduced into the motion. 
 
 Mr. Baily, although he might differ with the principle, still 
 thought very strongly that it was a question of expediency. 
 The resolution, on being put to the vote, was carried. 
 Mr. Rathbone next moved : ' That the damage done to cargo 
 and the loss of it and the freight of it, resulting from discharging 
 at a port of refage in the way usual at the port with ships not in 
 distress, shall not be allowed in General Average.' 
 
 Mr. Leathley thought this resolution involved exactly the 
 same question as that included in the last. The spirit of the one 
 was embodied in the spirit of the other ; and those who supported 
 the last would support this, and those who opposed the last would 
 oppose the present resolution. 
 
 j\Ir. Baily thought otherwise, and observed that when a cargo 
 is discharged there are some articles which it was not possible to 
 avoid injuring, the mere effect of moving them was sufficient. 
 With hides, for instance : the stowing of hides at the ports at 
 which they were obtained was a peculiar trade, and in no other 
 port except such ports could they be properly stowed. All the 
 care in the world would not enable them to re-stow the hides at a 
 port of refuge, not a hide port, without injury. Then again, they 
 very often found, when a cargo was discharged, that it was neces-
 
 58 MARITIME LEGISLATION. 
 
 sarily injured from exposure to the weather, or it was lost between 
 the sliip and the warehouse. At the end of the voyage, again, 
 they found that the cargo was short or injured, and the only way to 
 account for it was that the losses had taken place at the port of 
 refuge, and it could not have happened there if the vessel had not 
 put into that port and been discharged there. Exposure to the 
 atmospliere would cause injury to some kinds of cargo. All these 
 questions must be considered. Again, when a cargo was taken 
 out of the ship and put into a warehouse at a port of refuge, some 
 of it might be stolen from the warehouse, or might be burnt, or, 
 as had recently occurred in a case in which he was concerned, 
 might be injured by a flood of water. All these cases had hap- 
 pened, and involved questions of great importance, and ought to 
 be considered. Again, the mere handling of cargo sometimes 
 caused injury. Many kinds of goods were put into bags which 
 would bear twice handling — once in putting into the ship and 
 another time in discharging — but they would not bear four times 
 handling, and would therefore be injured by being twice discharged 
 and loaded. It might be well, therefore, to split up the resolution 
 into two parts — the damage done accidentally and that done 
 naturally. 
 
 The Chairman. Is it quite apart from the question of loss of 
 market ? 
 
 Mk. Baily. Entirely. 
 
 ]\Ir. Richards observed that in consequence of its detention 
 and deterioration a cargo was sometimes unfit for the market for 
 which it was intended, and that involved a loss of cargo. 
 
 I)i;. Kahusen said he supposed the right point of this matter 
 was adopted in the Dutch laws, which provided that the damage 
 done to goods and loss of freight was (Jeneral Average ordy when 
 the vessel had not been l^ronght into the port of refuge. For in- 
 stance, it Ii;i|i|)i'ii<-<1 tli.il a lai-ge vessel, drawing a great deal of 
 water, could not get into \\n' porl, and had to be unloaded in 
 lighters. The cargo wliili', in the. lighters was not yet saved, it 
 was yet in danger, and was therefore (General Average. It was at 
 llif port of (listless, but it was not wliliiu flic port, of distress. In 
 his opinion that was the riglit- jjoint. There might be a high sea,
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 59 
 
 and the lighters niiglit be thrown against the vessel, causing her 
 damage. 
 
 The Chairman. The resolution is quite clear: it is ' in ' a port 
 of refuge. 
 
 Mr. Baily said several gentlemen had asked whether this 
 resolution drew any distinction between the damage done to cargo 
 in the way he had mentioned and by the effects of climate — 
 whether it might not be advisable to split the resolution into 
 damage happening from accidental and from natural causes. 
 Take, for instance, a cask of provisions. By an injury to a cask 
 of pickled provisions the pickle might escape and the article 
 would be damaged : tliat was an injury from without. A cask of 
 dry provisions might be injured simply by keeping : and that was 
 not the eflect of injury from without. 
 
 Mr. Richards thought if the resolution said ' damage sustained 
 by the cargo in consequence of discharging,' that would include 
 every injury which the cargo might sustain while unloading. 
 
 Mr. Tomlinson explained that he was quite unable to vote on 
 the question in its then indefinite shape : it was too vague. 
 
 The original resolution, with alteration of ' at a port of refuge ' 
 to ' in a port of refuge ' was then put to the vote and affirmed. 
 
 Mr. Rathbone moved the fifth resolution : ' That the loss sus- 
 tained by cutting away the wreck of masts accidentally broken 
 shall not be allowed in General Average.' 
 
 Dr. Rahusen said that, in his opinion, such was an act of 
 General Average. It was a sacrifice for the common benefit in case 
 of extreme necessity. There were a great many cases in which 
 cutting away of wreck of masts or sails or booms was not General 
 Average, but there were cases in which such certainly was General 
 Average. When in a hurricane the three masts were blown down 
 the hull was in danger, and then the captain cut away the wreck 
 of those masts ; that was a sacrifice in extreme danger, for the 
 common benefit. The whole value of the masts and rigging must 
 not, however, be allowed in General Average, but only that portion 
 which was sacrificed. 
 
 Mr. Baily, as a matter of principle, did not think it was 
 General Average. A nuiu's property endangered his, and he re-
 
 60 MAlirrJME LEGISLATION. 
 
 moved that dangerous property. How could tlie man charge him 
 for removing that property ? It was unreasonable to ask him to 
 pay. The dang-er must be removed ; it was part and parcel of the 
 original injury that the man had sustained. So far as principle 
 went, it was an anomaly to ask them to pay for removing that 
 which was the cause of the danger. Again, as a matter of expedi- 
 ency, how was it possible to estimate the value of an article that 
 was in the sea in a gale of wind ? They had to take into consider- 
 ation the remote chance which there was of their being able to get 
 it on board again, and the probability, after they had got it on 
 board, of their being able to realise something for it at some distant 
 period. On the ground of expediency, also, therefore, he would 
 vote against allowing such a loss in General Average. 
 
 Dr. Rahusen considered that in principle it was General Aver- 
 age. How could the value of the broken mast be ascertained ? That 
 was only a matter of practice. Really the value of the broken 
 mast, whatever it was, was sacrificed, and therefore it was General 
 Average. 
 
 Mr. To:mlixson observed that in principle it w^as General 
 Average ; but as a matter of expediency it was not advisable to 
 consider it so. 
 
 Mr. Bradford quite agreed with My. Baily that it was not 
 General Average in practice or in principle. It was utterly impos- 
 sible to determine the value of the wreck cut away ; and as far as 
 American law Avas concerned, the custom was wholly against it 
 throughout the United States. He had never allowed it and he 
 never intended to do so. 
 
 The motion, on being put, was carried, with only two dissen- 
 tients ; and the Chairman expressed his regret for his Dutch and 
 German friends (who voted against it), and hoped such a very 
 decided expression of opinion on the subject would not be without 
 its effects. 
 
 "Mr. Katiihone moved : 'Tliat the expense of warehouse rent 
 at a port of refuge on cargo necessarily discharged there, the ex- 
 pense of re-shipping it, and tlie outward port charges at that port 
 sliall, wlicii llic sliip carries on the cai'gfj from that port, be allowed 
 ill (icueral Average.'
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 61 
 
 Mr. LAMroRT said lie thought he recollected a decision in our 
 English Courts that those charges were General Average. 
 
 Mr. Baily said there was no decision on the point, but there 
 were dicta of the Judges to that effect. 
 
 Mr. Leathley said in principle he recognised the law, but 
 there was not uniformity with reference to the law. 
 
 Mr. Richards was of opinion that these charges were not 
 allowable in General Average. When the vessel and cargo were 
 in safety at the port of refuge the General Average ceased. 
 
 Mr. Baily was of opinion that all these charges should be 
 allowed in General Average. Physical safety was the end in some 
 General Average acts only ; in most cases the end was the arrival 
 of the ship and cargo at their destination when that was possible. 
 Towards this end, discharging a cargo, taking care of it whilst 
 discharged, and re-shipping it were but steps ; but for this end it 
 was not necessary to discharge at all in many cases. The real 
 object of putting into a port of refuge even is not to repair the 
 ship, but to enable her to complete the voyage. If she could 
 complete the voyage wathout being repaired it would not be justifi- 
 able to put into port. Terminating the General Average at the 
 discharge of the cargo was cutting the General Average act in half. 
 
 This resolution having been carried, Mr. Rathbone moved the 
 seventh : ' That the damage done to ship, cargo, and freight by 
 carrying a press of sail shall not be allowed in General Average.' 
 
 The Chairman asked how such damage could arise. 
 
 Mr. Baily explained that if a vessel was on a lee shore she had 
 to carry a press of sail ; and the consequence was that her masts, 
 spars, sails, and even the ship herself, were sometimes strained and 
 damaged. A press of sail might likewise be carried to escape from 
 a pirate or pursuit by an enemy. 
 
 After a discussion the motion was put to the vote and was 
 carried. 
 
 It was then moved : ' That wages and provisions for the ship's 
 crew shall be allowed to the shipowner in General Average, from 
 the date on which his ship reaches a port of refuge under average 
 until the date on which she leaves it — the allowance for provisions 
 to be calculated at a fixed rate.'
 
 G2 MARITIME LF.GISLATTON, 
 
 Mr. W. H. Joxes, of Liverpool, tlionght there was some am- 
 biguity as to the expression ' under average.' If a ship put into a 
 port to get new masts, after having had to cut them away in a 
 hurricane, the expenses would be allowed; but if the ship sprung 
 a leak, and was detained for some time to be repaired, that, he 
 imagined, would not be allowed in General Average. 
 
 Me. Baily said many ships came in from the Baltic, and ran 
 into a port for shelter, to avoid threatening weather : if they ad- 
 mitted that into General Average, when there was nothing else 
 wrono- with the vessel, he apprehended that was not the real 
 meaning of the resolution. 
 
 It was then agreed to amend the resolution by substituting for 
 the words ' under average ' the words ' in distress.' 
 
 Mr. Bradford said if he was not mistaken they would, accord- 
 ing to the wording of the resolution, allow the wages and provisions 
 of all hands, whether they were employed or not. That, he thought, 
 would be unjust. The proper rule was to allow the wages and pro- 
 visions of those men who were retained in the ship by the master ; 
 but it frequently occurred that, after going into a port of refuge, 
 some of the men were discharged and some got other employments. 
 The vessel was not at the expense of food for these men, and there- 
 fore no charge should be made for it. In the United States the 
 law was to charge provisions and wages from the day on which the 
 ship bore up for the port of refuge. Although he would vote for 
 the resolution, he thought it should go further: the expenses should 
 be allowed from the time the vessel makes an alteration in her 
 course to bear up for the port of refuge. 
 
 Hon. Judge Marvin said, in the United States they adopted 
 the principle of this resolution ; and he believed they obtained it 
 from England herself. But however it might be English law, it 
 turned out not to be Lloyd's law. By Lloyd's law these wages 
 and provisions were not allowed in the General Average act; they 
 were not allowed by the underwriter upon the ship ; they fell 
 exclusively upon the shipowner; mid when the shipowner was 
 prepared to pay the full premium, why was he not liiUy indemni- 
 fied ? Why should he not be fully protected, either u})on the 
 General Averagt; or uj)on the insurance ?
 
 INTERNATIONAL LAW OF GENERAL AYEHAOE. 03 
 
 Mr. Baily thought it was necessary that those who invariably 
 shut out the expenses from General Average should say something 
 on the matter. He himself tliought it was not allowable in 
 principle ; he could draw no distinction between the wages and 
 provisions of the crew and the wear and tear of the ship during 
 tlie same period. It was one of those charges which attached to 
 the shipowner — one of those charges which it must be held he had 
 taken into consideration in entering into the contract. It was a 
 casualty just like the wear and tear of the ship, which was of course 
 greater the longer the voyage was protracted ; but he did not 
 think, if they were to aim at uniforrait}'-, that he could convert the 
 whole world to his way of thinking ; and therefore he accepted the 
 resolution as a compromise to promote that uniformity. If they 
 went as far as Mr. Bradford suggested they would get into endless 
 disputes as to when the dividing-point in the course was reached 
 — as to when the ship left the line of navigation proper for reach- 
 ing her port of destination, i.e. when she entered upon her course 
 for a port of refuge. If they would accept the resolution as a 
 compromise between the two opinions he would be inclined to vote 
 for it. 
 
 M. ExGELS did not think they should make any compromise in 
 that which they did not agree to be right in principle. He was, 
 however, in favour of the resolution, not as a compromise but as a 
 matter of principle. 
 
 Mr. Baily observed that indirectly the English courts had 
 decided that where a vessel put into a port of refuge the wages 
 and provisions Avere not allowable. 
 
 The motion, on being put to the vote, was affirmed by a majority. 
 
 ]\tR. Rathbone moved the ninth resolution : ' That the contri- 
 buting values of ship, freight, and cargo shall be their actual values 
 to the owner of them at the time when they became liable for the 
 General Average. That in fixing the value of freight, the wages 
 and port charges up to the date of the General Average act shall 
 not be deducted, and the wages and port charges after that date 
 shall be deducted from the gross freight at the risk of the ship- 
 owner.' 
 
 At the suggestion of the Chairman, who observed that gen-
 
 64 MARITIME LEGISLATION. 
 
 tlemen might vote in favour of one part and against the other, 
 Mr. Rathbone first proposed the opening clause of the resolution. 
 
 Mr. Baily thought there were some difficulties in the way of 
 the resolution. Suppose some of the cargo of a ship had been 
 thrown overboard, and afterwards the ship puts into a port of re- 
 fuse and incui-s expenses there, which are paid ; after which she 
 proceeds on her voyage, and subsequently goes to the bottom. 
 She does not owe for the jettison till the end of the voyage : but 
 what about the expenses actually incurred ? 
 
 The Chairman said a cargo might have a certain conjectural 
 value if it reached a market at a given period; but when the 
 vovage was actually completed it was found that that which had 
 great invoice value was of no value, on account of a change in the 
 market ; should the person get off from contribution on the value 
 of the article at the time the act was done, which was considered an 
 act for the benefit of all ? 
 
 Mr. Leathley said there was a question as to the value of the 
 goods ' where,' as well as ' when,' for goods would have very different 
 values in different places. The port of destination was the place 
 for which the cargo was intended, and it might not be so valuable 
 in any other port as at the place of destination. 
 
 Mr. Richards thought the port of destination was the proper 
 place for the average to be made up. If taken to the port for 
 which it was intended the cargo might be valuable ; but at another 
 place, where there was no market, it might be comparatively 
 worthless. A valuation at an intermediate port could never, there- 
 fore, be a proper valuation. 
 
 Mr. Baily said there were always two questions to be considered 
 in ascertaining a valuation — how much you could buy the article 
 for, and liow much you could sell it for. And he conteaded that 
 the value of a ship was her value to the owner. 
 
 !Mk. IIarpek said the value of goods to tlie owner was that at 
 which they would sell if they liad arrived at tlie time when they 
 should have arrived — the proper time for the U'rmiuation of the 
 voyage if these interni|)l inns h.-id u<it lukm phic(^; not when the 
 goods did in fact arrive, after a protract(.'d voyage. lie thought 
 the value of the goods to the owner during the whole voyage was
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 05 
 
 the value wliich he conteraplated they would have brought wheu 
 he made the venture. He made the venture for a certain market, 
 and he calculated the vessel would have arrived within a certain 
 time for that market. 
 
 Dr. Rahusen said the ship had not always the same destination 
 as the cargo, and the ship would not be at her port of destination 
 when the cargo had arrived there; so that it would not be just to 
 take the value of the goods at the port of destination. If there 
 was a port of refuge into which the vessel put, they should take 
 the value of the goods at that port. The freight was only earned 
 at the port of destination, and if the vessel did not arrive there 
 no freight was paid. The wages should also be deducted, for if the 
 ship did not arrive at the port of destination no wages were paid, 
 and no Particular Average on freight was paid. 
 
 Mk. "J'omlinson thought they had no safe ground to go upon, 
 except at the port of destination, and he should be quite prepared 
 to leave that question in the hands of the average adjuster. 
 
 Mr. Rathbone. Perhaps instead of ' port of destination ' ' ter- 
 mination of the adventure ' would be better. 
 
 The Chairman said the point seemed to be this : whether the 
 values should be at the port of destination, with or without taking 
 into view the depression from accident or changes of circumstances 
 occurring after the time the General Average act was executed. 
 
 M. Engels said the voyage was not at an end until the ship 
 and cargo came into the port of destination, and he considered that 
 the values should be taken when the vessel arrived. 
 
 The Chairman. Would ' the termination of the adventure ' 
 include the natural or assumed destination ? 
 
 ^Ir. Baily. Whatever they agree upon with regard to the 
 ultimate end of the adventure, the value in some cases mav be less 
 than the expenses. 
 
 The Chairman asked if it ever happened that the liability was 
 more than the ad valorem value of the goods ? 
 
 Mr. Baily said the property was changed in value, and they 
 ought not to apportion it according to the actual value. It would 
 be very hard if, when expenses had been incurred at a port of 
 refuge, and reasonably incurred, and the vessel was subsequently 
 
 F
 
 G6 MARITIME LEGISLATION. 
 
 wrecked, tliat because he might be unfortunate enough to have 
 some of his property saved, worth when saved say 6001, he should 
 be compelled to pay 1,000/., whilst the man who was lucky enough 
 to save nothing would have nothing to pay. If the amount 
 ultimately saved came down below the expenses incurred, it would 
 be very difficult to settle it. 
 
 Mr. Eathbone inquired if there was anything objectionable in 
 the principle adopted in England, to make the best of a bad job. 
 The value of the property finally saved is set off against the amount, 
 and the balance distributed over the estimated value of the property, 
 as if the accident had not happened. 
 
 The Chairman said there really were two questions before them, 
 and that they could not adopt the resolution as it stood, as it was 
 not clear what it meant, and as it would leave as many questions 
 behind as it disposed of. But they all seemed to agree that the 
 value must be taken to be the value of the article as at the termi- 
 nation of the adventure ; but subject to this, which was open to a 
 difft'rence of opinion, namely, was the value of the ship to be 
 affected or not by the depreciation occurring subsequent to the 
 time when the act of General Average arose ? 
 
 !Mr. Rathbone then substituted for the motion, which he had 
 previously submitted, the following : ' When the amount of the 
 expenses is less than the value of the property finally saved, the 
 contributing value of ship, freight, and cargo shall be their value 
 to their owners at the termination of the adventure.' 
 
 Dr. Hahusen. Do you mean by ' freight ' only the freight of 
 cargo, or also the freight of passengers ? 
 
 Mk. Haiiii'.onk. That is a very different question. It is one of 
 1ho.se questions which we cannot now raise, for if we once raise 
 them we shall be settled for this day and to-morrow too. AVe must 
 take it as freight as it is understood in each country. 
 
 Tin; ( 'ii.MKMAN. 1 don't know if Ihrrc is any example of 
 throwing a passiuiger overboard for the safety of tlie rest. 
 
 A AIkmbeh. There has been one instance, at least, in the case 
 
 of .lolKlll. 
 
 Ml:. II A riiiKj.NK begged foiudve I he I'esoliil ion as he had already 
 siiliiiiiited it ; and also ' Tliat when llie amount of exjienses exceeds 
 tlie \;iliie nC jirojiei'lv fnially saved, the excess of ex]K'nscs over pro-
 
 IXTKllNATIONAL LAW OF GENERAL AVEUAfJi:. OV 
 
 ceeds shall be apportioned as if the whole property had reached its 
 destination.' He also proposed a third resolution : ' That in fixing 
 the value of freight, the wages and port charges, up to the date of 
 the General Average act, shall not be deducted ; and the wages and 
 port charges after that date shall be deducted from the gross freight 
 at the risk of the shipowner.' 
 
 Mk. Baily said the last resolution contemplated the ordinary 
 case of freight being paid at the end of the voyage; but it was 
 now frequently the case that a portion of the freight was paid at 
 the port of shipment absolutely. The question was whether, if the 
 shipowner had only a portion of the freight at risk, they should 
 take off that portion all tlu' ]i(>rt charges for the voyage or oidy 
 part of tlieni. 
 
 ^Ir. Kichahds said the owner had only a certain amount of 
 money to put into his pocket when the ship arrived ; but he had 
 alreatly been paid money on account of the freight, and it would be 
 unjust that the entire amount of the wages incurred subsequently 
 to the General Average act should be deducted from the small 
 amount which he would receive at the end of the voyage. 
 
 After some conversation, the three motions were put to the vote, 
 and all of them were carried by majorities. 
 
 Hon. Judge Marvin said it occurred to him that the I'esolutions 
 which they had voted upon should now be refen'ed to a committee, 
 which should take them up, draft them into clear precise language, 
 and introduce the various necessary' qualifying terms. The language 
 into which the resolutions should be put should be carefully con- 
 sidered, and afterwards they should be recommended by the com- 
 mittee for adoption. The resolutions ought to undergo careful 
 revision at the hands of the committee, which ought to set to work 
 as soon as may be, in order that the results of their deliberation 
 might be circulated as soon as possible. 
 
 Mk. Ratiihonk. I think Judge Marvin means that we should 
 not send forth as the resolutions of this meeting abominalily 1 ad 
 Knglish. 
 
 The Chairman remarked that th(> functions of tlu- committee 
 would be to put the resolutions in more ])recise language where 
 such was necessary. 
 
 F 2
 
 68 MARITIME LEGISLATION. 
 
 ^1r. Baily said they had not yet spoken to the practical way 
 of carrying out the objects of the resolutions. Whilst they were 
 at Glaso-ow they ought to discuss what were the best means of 
 carrying out their resolutions, for if they considered that they had 
 done their work when their votes were given it was a great mistake. 
 "When they came to add up the votes, they might find that a mere 
 numerical majority was not of equal weight with the names of the 
 gentlemen voting in the minority. 
 
 The Chairmax said there was one thing which he hoped 
 gentlemen would think of before they came to the discussion to- 
 morrow, whether there was any objection, if it were thought 
 advisable, that the names of the voters should be given. Gentle- 
 men might not wish their names to be j)ublished ; but there was 
 no doubt it would be advisable to give the names of such as were 
 agreeable. 
 
 Mr. Baily said each knew what he had done ; and the public 
 wished to know the value of the names which had voted. Lloyd's 
 would of course pay more attention to some names than to 
 others. 
 
 Mr. Rathbone thought it was understood from the first that 
 that would be the case. There were some gentlemen who had 
 taken part in the proceedings who represented large bodies, and 
 in whose judgment everybody had great confidence, while there 
 were others, perhaps, who had not the same experience. 
 
 ;Mr. Leathley explained that, although he was connected with 
 Lloyd's, he simply voted in his individual capacity, and not as in 
 any way representing them. 
 
 Mr. Baily also suggested that, before the names were published, 
 gentlemen should have an opportunity of explaining whether they 
 voted on the ground of principle or expediency, for he himself had 
 voted for resolutions on different grounds. 
 
 Tlic suggestions of Mr. Baily were acceded to ; and a committee 
 — consisting of Lord Neaves, Hon. Judge Marvin, Mr. Baily, Mr. 
 Richards, Mr. Harper, and Mr. Ilathl)on(> — was appointed to con- 
 sider the resolutions, the committee to rcjiort the results of their 
 deliberations at the meeting to-morrow ('rinn-sday). 
 
 The section then iMljourned. 
 
 I
 
 INTEllNATIONAL ].A\V UF (JENEUAL ANllKAi iK. UO 
 
 TItursclaij, Septemher 27. — Lord Xkaves presiding. 
 
 A lonfy discussion took place, in which ahnost all the gentlemen 
 present took part. The purport of the discussion was the wording 
 of a resolution which should practically exclude from General 
 Average ' voluntary stranding,' without excluding it on the ground 
 that it was wrong in principle to allow it. Even those who ad- 
 vocated the admission of the loss on principle felt the practical 
 abuse it might lead to; and ultimately the following resolution, 
 proposed by Lord Neaves, was agreed to, in the place of resolution 
 No. 1, negatived on Tuesday: 'That, as a general rule in the 
 case of the stranding of a vessel in the course of her voyage, the 
 loss or damage to ship, cargo, or freight shall not be tlie subject of 
 General Average, but Avithout prejudice to such a claim in excep- 
 tional cases, upon clear proof of special facts.' 
 
 The meeting then proceeded to take into consideration as to 
 how and in what form the business now concluded by this Inter- 
 national Congress should be brought before the various Chambers 
 of Commerce, and the mercantile public generally. 
 
 Judge Marvix read a short statement of his views on the sub- 
 ject, which, after a discussion, in which the delegates from Holland 
 and Denmark, Messrs. Leathley, Richards, and Baily took part, 
 ended in the adoption of the following resolutions: — 
 
 1. * That the meeting hereby requests the Council of the 
 Association to assist b}^ their counsels such person or persons as 
 may be approved of by them, in drawing up a Bill, with a view to 
 its being enacted into a law by the legislative authorities of the 
 several nations of the world, which Bill shall define, as clearly as 
 may be, the term " General Average," and describe more or k'ss fully 
 the cases intended to be included within the definition, and which 
 shall also specify the nature of the loss, damage, or expense 
 allowable in General Average, and the principle on which the 
 amount of the loss, damage, or expense shall be ascertained; a^so, 
 furnish a rule or rules for ascertaining the contributory values of 
 the interests concerned, and which sliall also contain such matters 
 as the person or persons drawing up the Bill may think it advisable
 
 70 MARITIME LEGISLATION. 
 
 to insert. That upon sucli Bill being drawn up and printed, copies 
 thereof shall be transmitted to the several Chambers of Commerce, 
 Boards of Underwriters, Shipowners' Associations, and other com- 
 mercial societies in different parts of the world, accompanied by a 
 copy of this resolution, and a request to them to examine and 
 return the said copies, with such alterations or amendments as 
 thev may think proper to make therein, within six months from 
 the time of the receipt thereof. That, upon the return of the said 
 copies, or upon the expiration of the said six months, the said Bill 
 shall be revised by the person or persons drawing up the same, 
 enlightened by the information acquired as aforesaid. That, upon 
 the Bill being perfected in the mamier aforesaid, it be recommended 
 to the legislative authorities of all commercial nations, to enact 
 the same into a law.' 
 
 2. ' That, in the meantime, the meeting resolves to circulate as 
 widely as possible, for general information, the rules embodied in 
 the resolutions udiich have been passed by the meeting, as those 
 which, under a uniform system, it might be desirable to consider.' 
 
 The business of the Congress being thus concluded, it was 
 moved by Judge Marvin, seconded by Mr. Leathley of Lloyd's, 
 and carried unanimously : ' That this meeting offer their best thanks 
 to Lords Brougham and Neaves for their kindness in acting as 
 Chairmen, and for the able manner in which they have assisted its 
 deliberations.' In seconding tlie resolution, Mr. Leathley said 
 that Lloyd's took a warm interest in the question under discussion, 
 and in the results tliat would follow this meeting at Glasgow. 
 
 A vote of thanks to Judge Marvin and to the other foreign 
 delegates was also passed, and the meeting broke up. 
 
 Tl iii.'iy not Le out of place to reprint here the resolu- 
 tions which were passed at a meeting of the Committee for 
 man.'iLnii.Lf the aflhirs of Lloyd's (^n the lOlli of October, 
 IbGO, viz. :— 
 
 1. ' 'I"Ii;il 1 lie I li;iiiks (iC this ('(111111111 Ice !)(• given to the several 
 gciitloincii wild. ;ii .'i great s.'icrilicc of personal convenience, have 
 fotric fVfiiii uljroiul l(j attend the niecliiig at Glasgow on the subject
 
 IXTKRNATIONAL LAW 01- (iKNKKAL AM:UA( iK. 71 
 
 of General Average, and whom llic coniinittm- had tliu honour of 
 meeting by a deputation of tlu'ir body.' 
 
 2. ' That this resolution be communicated to each of the 
 gentlemen, and that they be assured at the same time that this 
 committee take a strong interest in the subject discussed at Glasgow 
 and that they will gladly co-operate in the endeavour to carry out 
 the very desirable object sought to be attained.' 
 
 The di-at'tsmau to whom originally the task of iVaiiiiiig 
 a Bill — as a stej) towards the formation of a code to be 
 adopted in the different countries — was entrusted, became, 
 after his recovery from a serious illness, so overburdened 
 with other engagements, that he was altogether disabled 
 from undertaking the work, and the difficulty which in 
 consequence arose in procuring a competent substitute 
 caused such a delay in the preparation of the Bill that it 
 was not drawn before the spring of 1862, when it appeared 
 in the following terms, viz. : — 
 
 BBAFT OF A BILL 
 intituled 
 
 An Act to Consolidate and Amend the Laws relating to 
 General Average Sacrifices and General Average 
 Contributions. 
 
 Be it enacted by the Queen's most Excellent Majesty, by and with 
 the Advice and Consent of the Lords Spiritual and Temporal, and 
 Commons, in this present Parliament assembled, and by the 
 Authority of the same, as follows: 
 
 Interpretation Clause. 
 
 1. For the Purposes of this Act (if not inconsistent with the 
 Reason of the Thing or the Context), the following Terms and 
 J^hrases shall have the respective Meanings hereinafter assigned 
 to them ; (that is to say,) 
 
 'Master' shall include every Person having Command or 
 Charge of any Ship:
 
 72 MARITIME LEGISLATION. 
 
 ' Seamen' and ' Crew ' shall have the same Meaning, and shall 
 each include every Person employed or engaged in any 
 Capacity on board any Ship : 
 
 * Ship ' shall include Man-of-War, Privateer, Merchantman, 
 and every other Description of public or private Craft : 
 
 ' The Ship ' shall mean only the particular Ship in respect to 
 which the General Average Loss in question shall have 
 been made or incurred : 
 
 ' Cargo ' shall include every Description of Wealth on board 
 the Ship except the Ship's Apparel and Outfit : 
 
 ' Property ' shall include the Ship, her Apparel and Outfit, the 
 Freight and the Cargo, and every Article of Wealth at 
 Hazard in the Adventure in which the Ship shall have been 
 employed : 
 
 ' Sacrifice ' shall comprise the Destruction or Damage of or 
 Injury to any Article of Wealth : 
 
 ' General Average Act ' shall comprise both General Average 
 Losses and General Average Expenditures or Disburse- 
 ments : 
 
 ' General Average Act' and ' General Average Sacrifice ' shall 
 have the same Meaning : 
 
 ' General Average Sacrifice ' shall mean a prudent and extra- 
 ordinary Sacrifice of Property made by the Master in order 
 to avert an unusual and imminent Peril from the Ship, 
 Freight, and Cargo, such Property so sacrificed as aforesaid 
 not having been the Cause of such Peril as aforesaid, nor 
 having been expressly stipulated for by the Parties to the 
 Maritime Adventure in respect to which such Sacrifice as 
 aforesaid shall liave been made : 
 
 ' General Average Loss ' shall denote the Loss sustained by any 
 ]*erson in consequence of the I'erformance of a General 
 Average Act or Sacrifice : 
 
 ' General Average Expendituri' " shall denote any Debt or 
 Liability pro]iorly contract I'd in respect to a General 
 Average Sacrilicc ]>y Ihc Maslci- of the Ship with a IV'rson 
 not liaving any Property at liisk in the Adventure : 
 
 '(Jf-noral Avoragc r\)iif rihution " shall denote that Conipensa-
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 73 
 
 tion whicli the Party who shall have suffered a General 
 Average Loss sliall be entitled to receive from the Owners 
 of the Ship, Freight, and Cargo : 
 ' Unusual Peril ' shall comprise Enemies, Pirates, and formid- 
 able Robbers; and shall also comprise Storms, Swells, 
 Shoals, Quicksands, Lee Shores, Rocks, Cliffs, and the 
 Ship's straining or taking the Ground, provided that this 
 latter Class of Perils shall not have been incident to the 
 usual Course of the Voyage in prosecuting which the Ship 
 shall have been employed at the Time when the Sacrifice in 
 question shall have been made. 
 
 General Pkovisions. 
 
 2. If the Majority of the Seamen on board the Ship shall 
 concur in performing an Act, which, if done with the Master's 
 Consent, would have been a General Average Act, such Act so 
 performed by the Majority of the Seamen shall be deemed to be a 
 General Average Act within the Meaning of this Act. 
 
 3. That all such Provisions of this Act as relate to a Ship 
 shall (as far as is practicable) be deemed equally to apply to Boats 
 of every Description, whether the same shall have been propelled 
 by Oars or not. 
 
 4. That every Person who shall suffer a General Average Loss 
 shall be entitled to receive from the Persons whose Property shall 
 have been at Risk in the Adventure in respect to which such 
 General Average Loss shall have been incurred a Sum of Money 
 equivalent to the Loss (if any), properly and necessarily sustained 
 by him in respect of such General Average Loss, and such Sum 
 shall be contributed for by the Persons in respect of whose 
 Property such General Average Act as aforesaid shall have been 
 performed in proportion to the Values of their respective Interests 
 in such Property as aforesaid, and such Values shall be estimated 
 in the Manner hereinafter directed. 
 
 5. A General Average Expenditure shall give to the Person 
 making the same a Right to a General Average Contribution, 
 irrespectively of the final Success or Failure of the Adventure. 
 
 G. Subject to the Provisions of this Act, all Acts, Losses,
 
 74 MARITIME LEGISLATION. 
 
 Expenses, Debts, or Liabilities which are either preliminary or 
 necessarily incidental to a General Average Sacrifice or Loss, if 
 such Acts, Losses, Expenses, Debts, or Liabilities could have been 
 foreseen by the Master or other Person authorised by this Act to 
 make a General Average Sacrifice as the natural and probable 
 Consequence of such Sacrifice, shall be deemed to be General 
 Average Acts within the Meaning of this Act. 
 
 Jettison. 
 
 7. Subject to the Provisions of this Act, a Jettison shall, for 
 the Purposes of this Act, be defined to be a prudent and extraor- 
 dinary throwing overboard or Sacrifice of Property which shall 
 have been on board, done or made by or by the Direction of the 
 Master of the Ship, in order to avert an unusual and imminent 
 Peril from the Property at Risk in the Adventure. 
 
 8. A Jettison shall be deemed to be a General Average Act 
 within the Meaning of this Act. 
 
 9. The Loss or Damage necessarily done to Property in conse- 
 quence of a Hole having been cut in the Ship in order to get 
 Goods or Stores out for the Purpose of a Jettison, and the Loss or 
 Damage of Goods occasioned by their being washed overboard or 
 otherwise injured after having been brought on Deck either for the 
 Purpose of being jettisoned themselves, or in order that less 
 valuable Goods might be reached in order to be jettisoned, and the 
 Loss or Damage of any Part of the Property on board on account 
 of the Vessel's shipping AVater in consequence of a General 
 Average Act, shall be deemed to be Losses either preliminary, or (as 
 the Case may be) necessarily incidental to a General Average Act. 
 
 10. Any Sacrifice, the Object of which could be properly and 
 effectually accomplished by means of a -lettison, shall for the 
 J*urposes of this Act be considered us a Jettison. 
 
 1 I . A Jettison of Specie, Money, Jewels, or other like valu- 
 able roiiimodities shall not be made unless such Jettison shall be 
 unavoidable. 
 
 Siiir, I'uKHiirr, and Caiu;o. 
 
 12. Subject to the I'rovisions of this Act, a prudent and extra- 
 ordiiifiry Sacrifice of a Mast, Spar, Sail, Halyard, A'ard, Rigging,
 
 INTERNATIONAL LAW OF GENERAL AVI] I! AGE. To 
 
 or other Apparel, Outfit, or Materials of the Ship, made by or by 
 the Direction of the Master of the Ship, in order to prevent her 
 from foundering, or to float her when stranded, to enable lier to 
 reach a Port of Refuge, to righten her when on her Beam Ends, 
 to prevent lier from being driven on Shore, to join Convoy, or to 
 prevent her from being separated from the same, or in order to 
 avert any unusual and imminent Peril from the Ship, Freight, and 
 Cargo, shall be deemed to be a General Average Act or Loss 
 within the Meaning of this Act. 
 
 13. The Loss sustained on account of any Part of the Bulwarks 
 of the Ship having been cut away in order to relieve her of A\'atcr 
 when flooding her Decks shall be deemed to be a General Average 
 Loss within the Meaning of this Act. 
 
 14. When a Mainmast, after having been cut away for a 
 General Average Pui*pose or Sacrifice, shall in its Descent have 
 carried away the Mizenmast, or have injured the Boats or Bulwarks 
 or any Part of the Ship or of the Cargo, then in such Case the 
 Damage which such Mainmast shall have so done as aforesaid to 
 the Mizenmast, Boats, Bulwarks, or other Part of the Ship, or to 
 any Part of the Cargo, shall be likewise deemed to be a General 
 Average Loss within the Meaning of this Act. 
 
 15. No Loss or Damage sustained by the Ship, Cargo, and 
 Freight, in consequence of an intentional Stranding of the Ship, 
 shall be deemed to be a General Average Loss within the Meaning 
 of this Act ; provided, that if the Property at Risk in the 
 Adventure could have been equally eSicaciously protected by means 
 of a Jettison or other General Average Act, then in such Case 
 such intentional Stranding shall be deemed to be a General 
 Average Act as regards the Ship. 
 
 16. Subject to the Provisions hereinafter contained, all Loss 
 or Damage properly and necessarily occasioned by or by the 
 Direction of the Master to the Ship, her Apparel or Oiltfit, prior 
 to the Discharge of the Cargo and for the Benefit of the Ship 
 and Cargo, in heaving the Ship off" after she shall have been either 
 intentionally or accidentally stranded, shall be deemed to be a 
 General Average Loss within the ]\Ieaning of this Act. 
 
 17. All Damage properly done to Property by the M.ister in
 
 76 MARITIME LEGISLATION. 
 
 cousequeuce of getting the Ship off the Ground after the Cargo 
 shall have been discharged for that Purpose, shall be deemed to be 
 a General Average Sacrifice, provided that the Cargo and Ship are 
 subsequently reunited ; or that, even if the Cargo and Ship are 
 not subsequently reunited, the Value of the Ship shall not be 
 improved by getting her oif. 
 
 18. All Damage done to the Ship, Freight, and Cargo in con- 
 sequence of a Measure properly taken by the Master to extinguish 
 a Fire on board the Ship shall be deemed to be a General Average 
 Loss within the Meaning of this Act. 
 
 19. All Expenses and Liabilities properly incurred by the 
 Master of the Ship for the Purpose of extinguishing a Fire on 
 board, shall be deemed to be General Average Losses within the 
 Meaning of this Act. 
 
 20. The Loss or Damage caused to the Ship, Freight, and Cargo 
 by carrying, crowding, or hoisting a Press of Sail shall not be 
 deemed to be a General Average Loss within the Meaning of this Act. 
 
 21. When the Ship shall have been lost owing to the Want 
 of an Anchor or Chain slipped from, such Loss of the Ship as 
 afavsaid shall not be deemed to be a General Average Loss 
 within the meaning of this Act. 
 
 22. No Sacrifice of the Wreck of a Mast, or of a Spar snapped 
 or sprung by the AVind, or of the Rigging attached thereto, or of 
 any other Portion of the Ship or her Apparel, that shall have been 
 so damaged by Accident as to be unfit for its primary Function, 
 shall be deemed to be a General Average Act within the Meaning 
 of this Act. 
 
 23. Tlio Sacrifice of any of the Ship's Guns, Ammunition, 
 Outfit, Apparel, or Furniture, or of any other Property, made by 
 or by the Direction of the Master of the Ship in lawful Defence 
 against Capture, and the Expense of curing such Persons on board 
 as sliall have Ijfen wounded, maimed, or otherwise bodily injured 
 in such Defence as aforesaid, shall be deemed to be General Average 
 Sacrifices within the Meaning of iliis Act. 
 
 Note. — 'i'liis Sectio/i is ('(Minlci- In llic |)r('sent Law f)ii (his 
 Matter, but is recommendrd hy i(s I'nlicy in encournging l.-iufiil 
 and judicious Resistance.
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 77 
 
 24. No Loss of Interest or Profit on the Property at Risk in 
 the Adventure, and no Loss occasioned by the Delay, Wear and 
 Tear, Deterioration in Value, Loss of ]\Iarket, or Change in Price 
 of the Property at Risk as aforesaid, consequent upon a General 
 Average Sacrifice, shall be deemed to be a General Average Loss 
 within the Meaning of this Act. 
 
 25. No Sacrifice of Property that shall have been itself a Cause 
 of Peril to any Portion of the Property at Risk in the Adventure, 
 or which shall have been in a State of Wreck, or which shall have 
 been carried on board the Ship in a Manner or at a Time not 
 warranted by the usual Course of Trade in such Voyages as that 
 in which the Ship shall at the Time of such Sacrifice have been 
 employed, or which in any Manner shall have impeded the due 
 Course of the Navigation of the Ship, shall be deemed to be a 
 General Average Act within the Meaning of this Act. 
 
 26. No Loss occasioned by a contrary Wind or Calm, or by 
 Frost or other Temperature of the Atmosphere, shall be deemed to 
 be a General Average Loss within the Meaning of this Act, pro- 
 vided that, if the Master of the Ship shall, on account of the 
 Performance of a General Average Act, have properly caused her 
 to deviate from the Course of her Voyage for a Port or Place 
 where she shall have been detained by a Severity of Climate usual 
 at such Place, then, in such Case, the Cost of the Crew's Wages 
 and Provisions occasioned by such Protraction of the Voyage shall, 
 subject to the Provisions of this Act, be deemed to be General 
 Average Losses within the Meaning of this Act. 
 
 27. Every General Average Act made on behalf of the Ship 
 after Part of the Cargo shall have been placed in Lighters shall be 
 deemed to be a General Average Sacrifice, likewise as regards that 
 Part of the Cargo which shall have been placed in the Lighters 
 (this will prevent undue Preferences on the Part of the Master). 
 
 28. When a General Average Sacrifice shall have been made of 
 any Part of a Lighter, Long Boat, or small Craft into which l^art 
 of the Cargo shall have been placed or was about being placed in 
 order to extricate the Ship from a Peril not incident to the usual 
 Course of the Voyage, and when any General Average Expenditure 
 shall have been incurred in respect to such Lighter, Long I'oat, or
 
 78 MARITIME LEGISLATION. 
 
 small Craft as aforesaid, all such said Sacrifices and Expenditures 
 as aforesaid shall, subject to the Provisions of this Act, be deemed 
 to be General Average Acts or Expenditures respectively as regards 
 the Ship, Freight, and Cargo. 
 
 29. No Loss or Damage of Property by Worms, Insects, or 
 Climate shall be deemed to be a General Average Loss within the 
 Meaningf of this Act. 
 
 Cargo. 
 
 30. Subject to the Provisions of this Act, the Jettison or other 
 General Average Sacrifice of any Portion of the Goods placed in a 
 Lighter, Boat, or other small Craft in their Passage from the Ship 
 to the Shore shall be deemed to be a General Average Sacrifice as 
 regards the Ship and the Lighter, Boat, or other like Craft and the 
 Remainder of the Cargo. 
 
 3L The Shipper of Cargo by a Ship that shall have saved 
 another at Sea shall be entitled to a Share of the Salvage propor- 
 tionate to the Loss (if any), sustained by him by reason of such 
 Salvage Services. 
 
 32. If Goods jettisoned or otherwise sacrificed by a General 
 Average Act shall have been recovered, they shall be deemed to 
 have continued to be the Property of the Person or Persons whose 
 Property they were at the Time when they were jettisoned or 
 otherwise sacrificed as aforesaid, but such Owner or Owners shall 
 refund such General Average Contribution (if any) as shall have 
 been received by him or them on account of such Jettison or other 
 General Average Act, after having first deducted from the Amount 
 of such Contribution a Sum that will be equivalent to the Value of 
 the Damage sustained by the Goods so sacrificed as aforesaid 
 together with the Costs of Salvage (if any). 
 
 ')■). The Loss or Damage of C'argo, and the Loss of Freight 
 consequent upon a Discliarge of any Part of the Cargo when the 
 Ship shall have been stranded, shall be deemed to ])e a General 
 Average f.oss within the Meaning of this Act. 
 
 31. The Loss of, or oil. I'rojxTly by rciison of its licing properly 
 sold })y the Master of the Ship at a Port of licfiige in order to pay 
 anv Debff't. Expenses, or [iiahilil ies |iro|)( rly incurred liy him in
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 79 
 
 respect to any Matter that is constituted by this Act a General 
 Average Sacrifice, shall be deemed to be a General Average Loss 
 within the Meaning of this Act, 
 
 35. No Damage occasioned to the Cargo on account of the 
 Chafing or Breakage of any Part thereof in consequence of a 
 Jettison or other General Average Act shall be deemed to be a 
 General Average Loss within the Meaning of this Act. 
 
 3G. No Loss of, or on, Cargo and Freight by discliargiug the 
 Cargo at a Port of llefuge, except in Cases where such Discliarge 
 shall have been necessarily made in a Manner not usually adopted 
 at such Port as aforesaid in respect of Ships not in Distress, shall 
 be deemed to be a General Average Loss within the Meaninj^ of 
 this Act. 
 
 37. No Damage done to the Cargo by Water getting down the 
 Hatches in consequence of a Jettison or other General Average 
 Act being or having been made, shall be deemed to be a General 
 Average Loss within the Meaning of this Act. 
 
 38. No Loss of, or on. Cargo by reason of its being properly 
 shut out or left at a Port of Refuge shall be deemed to be a General 
 Average Loss within the Meaning of this Act. 
 
 39. No Loss of, or on, Cargo caused by discharging it when the 
 Ship shall have been condemned at a Port of Refuge, or in conse- 
 quence of the accidental Wreck or Damage of the Ship, or acci- 
 dental Damage of the Cargo, shall be deemed to be a General 
 Average Loss within the Meaning of this Act. 
 
 40. If, or when, the Cargo shall have been necessarily discharged 
 at a Port of Refuge, the loss of any part of the cargo at such Port 
 as aforesaid by Fire, Theft, or any unusual and imminent Peril 
 shall be deemed to be a General Average Loss Avithin the ]\Icaning 
 of this Act. 
 
 41. No Sacrifice of Goods for which no Bill of Lading: or other 
 Note in Writing shall have been signed by the Master, or which 
 shall have been taken on board by him barratiously or contrary to 
 a Charter Party, or which the Owner of such Goods or his Agent 
 shall without the Master's Consent have shifted to a Place in the 
 Ship different from that allotted to them by the ^Master, sliall be 
 deemed to be a General Averaare Act within the Mciuiintr <>f this Act.
 
 80 MARITIME LEGISLATIOX. 
 
 Freight. 
 
 42. Subject to the Provisions of this Act, in all Cases in which 
 the Sacrifice of any Part of the Cargo is constituted by this Act a 
 General Average Loss, the Sacrifice of Freight sustained in conse- 
 quence of such Sacrifice as aforesaid of any Part of the Cargo shall 
 be deemed to be a General Average Loss of the Freight. 
 
 43. No loss of Freight on Cargo shut out at a Port of Refuge 
 or on any Portion of the Cargo not sacrificed by a General Average 
 Act, shall be deemed to be a General Average Loss within the 
 Meaning of this Act. 
 
 Intermediate Expenses. 
 
 44. All extraordinary Expenses properly incurred by the Master 
 of the Ship in order to join Convoy, or in consequence of his waiting 
 for the same, shall be deemed to be General Average Sacrifices 
 within the Meaning of this Act. 
 
 45. All Compensations and Ransoms properly paid to Pirates 
 by the Master of the Ship on behalf of the Persons or Property on 
 board shall be deemed to be General Average Acts within the 
 Meaning of this Act. 
 
 46. The cost of Crew's Wages and Provisions and all other 
 Expenses and Liabilities properly incurred by the Master in order 
 to release the Property at Risk in the Adventure from Capture, 
 Detention, or Embargo, suffered by Order of a Sovereign Power, 
 shall be deemed to be General Average Losses within the Meaning 
 of this Act. 
 
 47. If a Hostage shall, with his own consent and that of the 
 Master of the Ship, have been properly given to secure a Compensa- 
 tion or Ransom, the Reimbursement to which such Hostage shall 
 have Ijeen entitled for his I'^xpcnsos and personal Inconvenience as 
 HUf.li Hostage shall be; deemed to 1k' a (Jcncral vVverage Loss within 
 the Meaning of this Act. 
 
 48. All Sums of Money or AiMiclcs of Vahie j)roporly and 
 necessai-ily \):i\(\ or given by tlie Maslci- on account of IIk; Services 
 of nnotlii-i- Sliij) in cirrctiiig a Re-capture of Mic Slii{) and C'argo
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 81 
 
 from an Enemy, shuU be deemed to be General Average Losses 
 within the meaning of this Act. 
 
 49. All Expenses and Liabilities properly incurred by the 
 Master of the Ship for the Purpose of unloading her after she shall 
 have been either intentionally or accidentally stranded, shall, except 
 in Cases where the Cargo could have been discharged and forwarded 
 to its Destination for an Outlay or Loss less in Amount than the 
 Cost incurred in heaving the Ship off, be deemed to be General 
 Average Losses within the Meaning of this Act. 
 
 50. All Expenses and Liabilities properly incurred by the 
 Master in consequence of getting the Ship off the Ground, after 
 the Cargo shall have been discharged for that Purpose, shall be 
 deemed to be General Average Sacrifices, provided that the Cargo 
 and Ship are subsequently re-united, or that even if the Cargo and 
 Ship are not re-united as aforesaid, the Value of the Ship shall not 
 have been improved liy getting her off the Ground. 
 
 51. The Expense of re-shipping Cargo, after it shall have been 
 put into Lighters to float or lighten the Ship when stranded, or 
 when threatened T with any unusual or imminent Peril, shall be 
 deemed to be a General Average Loss within the Meaning of this 
 Act. 
 
 52. The Crew's Wages and Provisions and all other Expenses 
 consequent upon bearing u]3 for a Port of Refuge shall (from the 
 Date when the Ship deviates from the Course of her Voyage for the 
 Purpose of such bearing up) be deemed to be General Average 
 Losses within the Meaning of this Act. 
 
 53. The Inward Port Charges, such as Towasre, Pilotasfe, 
 
 O ? O ' 5 
 
 Dockage, Health Fees, and the like, incurred at a Port of Refuge, 
 whenever the bearing up for such Port shall have been rendered 
 necessary either by a General Average Sacrifice, or by accidental 
 Damage to the Ship or Cargo, Sickness of Crew, unexpected Want 
 of Water or Provisions, shifting of the Cargo, Pumps choking, or 
 other like Accident, shall be deemed to be General Average Losses 
 within the meaning of this Act. 
 
 hi. All Expenses consequent upon bearing up for a Port of 
 Refuge, the Expense of discharging the Cargo there, and the Hire 
 of Lighters in order to avoid discharging Part or the whole of the
 
 82 MARITIME LEGISLATIOX. 
 
 Cargo there, if properly incurred by the INfaster, shall be deemed 
 to be General Average Losses within the ^Meaning of this Act. 
 
 55. All Expense of Postages, Notarial Fees, Adjustment Fees, 
 and Brokerao-e. properly incurred by the Master of the Ship at a 
 Port of Refuge, shall be deemed to be General Average Losses 
 within the Meaning of this Act. 
 
 56. The Cost of the Wages of Men properly emploj'ed by the 
 Master to pump when the Cargo shall have been on board at a Port 
 of Eefuge, shall be deemed to be a General Average Loss within the 
 Meaning of this Act. 
 
 57. The expense of Warehouse llent at a Port of Refuge on 
 Cargo necessarily discharged there, and the Expense of re-shipping 
 it, except as to such Portion thereof as shall have been discharged 
 in consequence of an Accident at such Port, and in all Cases the 
 
 •Outward Port Charges properly incurred by the ^Master at such 
 Port, shall, in case the Ship shall cai-ry on the Cargo from such 
 Port, or when the original Contract of Affreightment shall not 
 have been determined, be deemed to be General Average Losses 
 within the Meaning of this Act. 
 
 58. If, or when, the Stowage of any Part of the Cargo shall 
 have become, by means of Perils of the Sea, a Cause of Peril to the 
 Property at Risk in the Adventure, all Expense properly and 
 necessarily incurred for the Purpose of discharging the Cargo in 
 order to restow it properly shall be deemed to be a General ^Average 
 Loss within the Meaning of this Act. 
 
 59. All Expense properly incun-ed by the Master of the Ship 
 in protecting the Property at Risk at a Port of Refuge shall be 
 deemed to be a General Average Loss within the Meaning of this 
 Act. 
 
 GO. All Expense of Delay at Sea, properly incurred by the 
 !^^aster in order to refit, shall be deemed to be a General Average 
 Loss within the Meaning of this Act. 
 
 CI . The Expense of discharging the Cargo in order to cool it, 
 or for any other Object, except it be to the Advantage of all the 
 property at Risk in the Adventure, shall not be deemed to be a 
 General Average Act or Loss within the Meaning of this Act. 
 
 02. The Expense of making pcM-manent {{cpairs to the Ship at
 
 INTERNATIONAL LAW OF GENERAL AVEIJAGE. 83 
 
 a Port of Refuge, except in Cases where the Damage to repair 
 which such Repairs shull be made shall have been a General 
 Average Loss, shall not be deemed to be a General Average Loss 
 within the Meaning of this Act. 
 
 Go. The Expense properly incurred by the ^Nfastor at a Port of 
 Refuge in making Repairs which do not permanently improve the 
 Value of the Ship shall be deemed to be a General Average Loss, 
 provided that either such Repairs as aforesaid, or some other General 
 Average Loss or Kxpenseof an equal Amount should be necessarily 
 incurred at such I'ort in order to the safe Prosecution of the Voyage, 
 or in case that such Repairs as aforesaid shall have been made in 
 order to avoid discharging the Cargo. 
 
 CI. If, or when, the Ship shall have entered a Port of Refuge 
 for the l^urpose of having Repairs made which shall have been 
 rendered necessary, partly on account of particular and partly on 
 account of General Average Losses sustained by such Ship, the 
 Expense of the Repairs, and of the Wages and Provisions for the 
 Crew during the Time in which the Repairs are being made, shall 
 be apportioned, so that so much only of such Expenses as aforesaid 
 as shall have been rendered necessary in consequence of a General 
 Average Sacrifice, shall be deemed to be a General Average Act or 
 Loss. 
 
 65. Bottomry, Respondentia, and all other Interest and Com- 
 mission, but not the Premiun of Insurance on Money expended, 
 properly incurred by the Master at a Port of Refuge, with respect 
 to a General Average Act, shall be deemed to be General Average 
 Acts or Losses within the Meaning of this Act. 
 
 60. All Expenses incurred by the Master, which if incurred by 
 another Person would have been Expenditures within the Meaning 
 of this Act, shall be deemed to be Expenditures within the Meaning 
 of this Act. 
 
 67. If, or when, the Ship, her Apparel or Outfit, or any Part 
 thereof, shall have been properly and necessarily hypothecated by 
 the Master, in order to discharge a General Avei*age Liability, the 
 Sum for which the Ship, her Apparel or Outfit, or any Part thereof, 
 shall be so hypothecated as aforesaid, shall be contributed for as a 
 General Average Loss, just as if the Shipowner had made a Jettison
 
 84 MARITIME LEGISLATION. 
 
 of his Property of tlie Value of such Sum, provldocl that if the 
 Cargo shall have been lost, and the Ship sliall have remained safe, 
 such Sum shall be contributed for as an Expenditure. 
 
 "Wrecks. 
 
 68. In Case of Wreck, all prudent and extraordinary Sacrifices 
 properly made, and all prudent and extraordinary Expenses and 
 Liabilities properly incurred by the Master for the Benefit of the 
 Property at Kisk in the Adventure, shall be deemed to be General 
 Average Losses within the Meaning of this Act. 
 
 69. In Case of Wrecks, the Cost of Crew's Wages, when the 
 Crew shall have been employed for the Benefit of the Ship, Freight, 
 and Cargo, after the Date at which the Shipowner could have 
 legally dismissed them, and no Freight shall have been earned by 
 him in the Adventure, shall be deemed to be a General Average 
 Loss within the Meaning of this Act. 
 
 70. The Loss or Damage of any Part of the Ship's Stores 
 caused by their being landed in case of Wreck in a disadvantageous 
 Manner or at a disadvantageous Time, having been intended to 
 facilitate the Discharge of the Cargo, shall be deemed to be a 
 General Average Loss within the Meaning of this Act. 
 
 7L The Expense of landing the Cargo shall, when the Ship 
 shall have been wrecked, or condemned at a Port of Refuge, be 
 deemed to be a General Average Loss within the Meaning of this 
 Act. 
 
 Estimation of General xVverage Losses. 
 
 72. The Amount of a General Average Loss of Ship's Stores 
 shall, when the Ship shall have been wrecked before they shall 
 have been replaced, be estimated at the Amount or Value which 
 Buch Stores would have had if lluy hud been on Ijoard when the 
 Ship was wrecked. 
 
 73. "Jlie Amount of a General Average Loss of ;iny of the Ship's 
 Stores shall, when such Stores shall have been r(^])laced before or 
 at the 'I'rniiiiiation of th<! Advent hit, lie ('(iniviilcnt lo the actual 
 Expense of n^placing such Stores; but, wluni such Stores shall 
 have been re))l;ircd sul)sefjtK'utly fo the Termination of the
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 85 
 
 Adventure, the Amount of such General Average Contribution as 
 aforesaid shall be equivalent to the Expense that would have been 
 incurred if they had been replaced at the Termination of the 
 Adventure. 
 
 74. The Amount of a General Average Loss of any Portion of 
 the Cargo shall be estimated at the Price which it would have 
 brought at the Ship's Port of Destination at the Time it would have 
 been delivered there if it had not been sacrificed as aforesaid, 
 deducting from such Amount as aforesaid all such Charges and 
 Expenses as must have been paid if the Goods had been delivered 
 at the said Port and shall have been avoided by the Goods having 
 been sacrificed as aforesaid. 
 
 75. A General Average Sacrifice of Property at Risk in the 
 Adventure shall not, if followed by a total Loss of the Ship and 
 Cargo, be contributed for in any Manner. 
 
 7G. For the Purposes of this Act, the Loss sustained by a 
 General Average Sacrifice of Property at Hisk in the Adventure 
 shall, if followed by a Wreck of the Ship, be estimated at the 
 Value which the Property so sacrificed would have had if it had 
 also suffered the same Wreck. 
 
 77. The Loss sustained by a General Average Sacrifice of 
 damaged or perishable Property shall be estimated at the Value 
 which the Property so sacrificed would, if it had not been so sacri- 
 ficed, have had at the Ship's Port of Destination, deducting from 
 such Value all Charges and Expenses that should have been paid 
 before such Goods as aforesaid could have been delivered there and 
 shall have been avoided by their having been sacrificed as afore- 
 said. 
 
 78. The Value of Property to be contributed for in respect of 
 a General Average Sacrifice made of the same, if such Value shall 
 have been stated in the Bill of Lading lower than it really was, 
 shall be its actual A'alue. 
 
 79. The Loss sustained in consequence of a General Average 
 Sacrifice of Provisions intended to be consumed during the Voyage, 
 or of the Effects of Sailors or Passengers, shall be estimated at the 
 Amount for which the replacing of such Provisions or Effects shall, 
 or would, have cost.
 
 86 MARITIME LEGISLATION. 
 
 80. The A'alue of Goods to be contributed for after they sliall 
 have been sold to pay Expenses shall, when such Sale shall have 
 been a General Average Loss within the Meaning of this Act, and 
 shall have realised a less Sum than the Sale of the same Goods 
 would have produced at the Ship's Port of Destination, be the 
 probable Amount of the net Proceeds of such Goods at the Port of 
 Destination ; but, in case such Sale as aforesaid shall have produced 
 a greater Sum than would have been obtained by a Sale of the 
 same Goods at the Port of Destination, then in such Case the Value 
 of such Goods so to be contributed for as aforesaid shall be equiva- 
 lent to the net Proceeds of the Sale as aforesaid after deducting 
 therefrom the Freight which the Shipowner Avould have earned if 
 the Goods so sold as aforesaid had arrived at the Port of the Ship's 
 Destination, provided that if such Deduction of Freight would 
 lower the Proceeds of the Goods sold at such intermediate Port as 
 aforesaid below the probable net Proceeds which would be obtained 
 by a Sale of such Goods at the Port of Destination, then, in such 
 Case, the probable net Proceeds of such Goods if sold at the Port 
 of Destination, estimated according to the Provisions of this Act, 
 shall be deemed to be the Value at which such Goods are to be 
 contributed for. 
 
 81. In all cases where a IjOSs or contributory Interest is directed 
 by this Act to be estimated at the Ship's Port of Destination, if it 
 shall happen that the property so to be estimated shall not have a 
 Price Current at such I'ort, and shall not be usually bought and 
 sold there, then in such Case the Estimation of such Loss or con- 
 tributory Interest (as the Case may be) shall be made according 
 to llie N'aliie wliich the I'rojjerty the Subject of such Loss or Con- 
 tribution shall have at the nearest Port to the Ship's Port of 
 Destination which, at the tiin(> of such Estimation as aforesaid, 
 shall have I'riees Current of such I'lMpi-rty, or where such Property 
 shall then be usually l)nu;_'-ht ;iii(l sold. 
 
 82. lOvery IN-rson who sleill re(ei\e any Ceiieriil Average Con- 
 tribution for any Portion of tins Cargo shall p.iy I'reight for the 
 same, if such I'ortion of the Cargo as al'oresaid would have been 
 li;ible to I'Veight. in CMse the Geueriil Ax'ei'age Sacritiee on ;iccount 
 of wliieh he sluill have i'erfi\r(| ' 'oiil nl)ul ion ;is afore>aid had not 
 
 Aril
 
 INTKUNATIONAL LAW OF GENERAL AVElfAGE. 87 
 
 been performed, but a like General Average Sacrifice had been 
 performed In' means of other Property, and the Amount for which 
 he shall be liable in respect of such Portion of the Cargo for Freight 
 shall be the Amount for which such Portion of the Cargo would 
 have been liable in the Circumstances aforesaid, less an Amount 
 equal to the Sum assessed on the Freight in the Adjustment of 
 such General Average Contribution as aforesaid. 
 
 83. Subject to the Provisions of this Act, the Loss of Freight 
 sustained in consequence of a General Average Sacrifice shall be 
 estimated according to the Amount of Freight payable at the Ship's 
 Port of Destination under the Bill of Lading. 
 
 84. If, or when, the Adjustment of a General Average Contri- 
 bution shall be made at a Port where the Property in respect of 
 which such Contribution shall have been made shall have been 
 replaced by an Equivalent, the Property so sacrificed as aforesaid 
 shall be contributed for at its Cost Price, together with the 
 Shipping Charges, but without the Premium (if any) paid for its 
 Insui-ance. 
 
 85. When Goods shall have been shipped at a Port of Kefuge 
 in the Place of Goods sacrificed by a General Average Act, an 
 Amount equal to the net Freight payable in respect of the former 
 Goods shall be deducted from the Freight Payable in respect of 
 the latter Goods ; but if the Goods shipped at a Port of Refuge 
 shall not have been shipped in the Place of Goods sacrificed by a 
 General Average Act, then, in such Case, only Half of the net 
 Freight paj^able on the Goods shipped at such Port of Refuge as 
 aforesaid shall be deducted from the Freight payable in respect of 
 the Goods so sacrificed as aforesaid. 
 
 CONTKIBUTORY INTERESTS AND YaLUES. 
 
 8G. In the Case of a General Average Sacrifice made on behalf 
 of a chartered Ship in Ballast, the Property liable to contribute in 
 respect of such General Average Sacrifice shall be the Ship, and 
 the Freight which she is earning under tlie Charter. 
 
 87. As regards a General Average Sacrifice made on belialf of 
 a loaded Shi}), the Property liable to contribute in respect of such
 
 88 MARITIME LFXUSLATION. 
 
 General Average Sacrifice shall be the Ship, the Freight, and the 
 Cargo. 
 
 88. All Property at Eisk in the Adventure shall be liable to 
 contribute in respect of a General Average Sacrifice made in its 
 Behalf irrespectively of the Question whether such Property as 
 aforesaid could have been the Subject of a General Average Sacrifice 
 or not. 
 
 89. If, or when, after Part of the Cargo shall have been dis- 
 charged at a Port of Refuge, a General Average Sacrifice shall be 
 performed in behalf of the Ship and the Remainder of the Cargo, 
 the whole Cargo and the whole Freight shall contribute in respect 
 of such General Average Sacrifice just as if no Part of the Cargo 
 had been discharged previously to the Performance of such General 
 Average Sacrifice as aforesaid. 
 
 90. In case a Ship laden with a Cargo which is liable to be 
 confiscated for a Breach of International Law by the Shipper shall 
 suffer a IjOss which, if the Cargo had consisted of Articles that 
 might have been lawfully shipped, Avould have been a General 
 Average Loss, then, in such Case, such Loss shall be deemed to be 
 a General Average Loss, but the Ship shall not, under such cir- 
 cumstances as aforesaid, be liable to contribute for any Loss sus- 
 tained by the Cargo in order to evade Danger of such Confiscation 
 as aforesaid. 
 
 91. If the Ship aloue shall be liable to Confiscation, then, in 
 such Case, no Portion of the Cargo shall be deemed liable to con- 
 tribute in respect of any Loss sustained by the Ship in order to 
 avoid the Daugt-r of such Confiscation. 
 
 Ii2. Arms. Ainiimuition, and other JMunitions of War, such 
 I'rovisions as arc intciMlt'd to be consunifd during the Voyage, the 
 Seamen's Wages and Luggage, J'assi'ng(>rs' Luggage, Wearing 
 Api)arel, and such Money, Jewels, or other Articles as are being 
 carried on the Bodies of ]Vrsons on bdaid. Passage ]\louey when 
 iKit ;it Kislc. and Abincy oi- I'roperty lent or gi\-en on I5<»t tonii-y or 
 J{espondentia, shall not be liable to Cent rilmt ion in icsjiect of any 
 Gen(Mal Average Sacrifice. 
 
 W. Jn respect to G( nnal Aviragc Saeiiliees and d'eneral 
 Avciiige J.osses, •Jewels, J 'carls. I )iani(>iicls. and other ()rnanients
 
 INTEKNATIONAL LAW OF GLNERAL AVEI^AGE. 89 
 
 or Articles of (I rent Value not carrie;! on tlie Person, and Gold 
 and Silver, whether coined or uncoined, and not carried on the 
 Person, shall be assessed for Contribution only at One Fourth the 
 Amount at wliich they shall have been entered in the Bill of 
 Lading : I'rovided that, if their Value shall not have been entered 
 in the Bill of Lading, they shall be assessed for the J^n-pose 
 aforesaid at One Fourth of their Value at the Ship's Port of 
 Destination. 
 
 9k Every Person entitled to a General Average Contribution 
 shall contribute towards such General Average Contribution, and 
 towards all other General Average Contributions levied in respect 
 to the same Adventure. 
 
 95. Subject to the Provisions of this Act, the contributory 
 Value of Property in respect to a General Average Contribution 
 shall be its Value at the Ship's Port of Destination. 
 
 90. For all Purposes of a General Average Contribution, the 
 Value of all Duties, Landing Charges, Insurance Premiums, Com- 
 mission Charges, Discounts, and Guarantees on Sales on Credit, 
 and all other Charges, Claims, or Liens whatsoever to which the 
 Ship and Cargo, or any Part of either, shall have been subject sub- 
 sequently to the Performance of the General i\.verage Sacrifice in 
 respect to which the General Average Contribution shall be levied, 
 shall be deducted from the Value of the said Property, when 
 assessed as directed by this Act. 
 
 97. An Expenditure or Disbursement shall be contributed for 
 by the Owners of the Property at Risk in the Adventure according 
 to the Proportion of the Values of their respective Interests in such 
 Property as aforesaid, estimated at the Time when such General 
 Average Expenditure or Disbursement as aforesaid shall have been 
 made. 
 
 98. If Property shall be liable to Contribution both in respect 
 to a General Average Sacrifice and a General Average Expenditure 
 or Disbursement, it shall be assessed on the different Principles 
 ordained by this Act in respect to such Contributions respectively. 
 
 99. If any l*roperty shall be properly and necessarily sold by 
 the Master at another Place than that of the Ship's De:>tiiiation, 
 the Value of such Pro^ ert y in respect to its Liability to a General
 
 00 MARITIME LEGISLATION. 
 
 Average Contribution shall be its Value at such Place of Sale as 
 aforesaid. 
 
 100. Goods shipped into Barges for the Purpose of Safety, or 
 of lightening and saving the Vessel and the Remainder of the 
 Cargo (provided that such Shipment do not take place in the 
 ordinary Course of Trade) shall, in respect to all other General 
 Average Sacrifices not Expenditures made or incurred during the 
 Adventure, be deemed to have continued on board throughout the 
 entire Course of the Voyage. 
 
 101. The General Average Losses to which the Twenty-ninth 
 Section of this Act relates shall be primarily contributed for by the 
 Lighter, Longboat, or Craft referred to in the said vSection, and the 
 Cargo on board, and the Contribution of the Cargo of such Lighter, 
 Longboat or Craft shall be apportioned among the principal Vessel 
 and the Remainder of its Cargo. 
 
 102. If, or when, Part of the Property liable to a General 
 Average Contribution shall have been sold on Credit, the Value of 
 such Property in respect to its Liability to a General Average Con- 
 tribution as aforesaid shall be its Price Current as defined by this 
 Act, or its actual Credit Price, deducting therefrom the usual 
 Discount and Guarantee. 
 
 103. If, after a Jettison or other General Average Sacrifice, 
 tlie Ship shall, before completing her Voyage, return to the Port of 
 Departure, or to any Port neighbouring thereto, where Articles of 
 the Nature and Quality of the Goods jettisoned or otherwise sacri- 
 ficed as aforesaid shall have been usually exposed for Sale, then in 
 such Case, if the Owner of the Goods so jettisoned or sacrificed as 
 aforesaid, or if any Agent of his at such Port as aforesaid, shall 
 liave liad sufficient Time to purchase an equal Quantity of Goods 
 of tlie same Description and Quality as the Goods so jettisoned or 
 sacrificed as aforesaid, the General Average Contribution for such 
 Jettison or otlnr Sacrifice as aforesaid sliall be made for a Sum 
 equal to the Market Price of tin' Aiiieles so jettisoned or sacrificed 
 as aforesaid current at the Port of 1)( parture or other neighbouring 
 J'ort as aforesaid. 
 
 lot. if any Portion of lln' I'l-opi rty wliieli had been at Risk 
 in the Adventure, on account of which a (ieneral Average Sacri-
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 91 
 
 fice shall have been incurred, shall, after a Wreck of the Ship, 
 have been saved, such Property shall, in respect of such General 
 Average Sacrifice, be liable to contribute for One Fourth Part of 
 its actual A'alue after deducting therefrom the Costs of Salvage (if 
 any). 
 
 105. Subject to the Provisions of this Act, the Value of the 
 Freight in respect of its Liability to Contribution for a Ceneral 
 Average Sacrifice shall be the Value of the Freight actually 
 earned. 
 
 lOG. Subject to the Provisions of this Act, the A'alue of the 
 Freight in respect to its Liability to a General Average Contribu- 
 tion shall be, in the Case of a loaded Ship, the Value of the Freight 
 as specified by the Bill of Lading, but, in the Case of a Ship in 
 Ballast, the contributory Value of the Freight shall be its Value 
 under the Charter (if any) under which she shall have earned 
 Freight in the Adventure in respect to which the General Average 
 Act in question shall have been made. 
 
 107. In estimating the contributory A^alue of Fi-eight with 
 respect to General Average Contributions, the Value of the Wages, 
 Port Charges, and other Expenses paid or incurred previously, 
 but not any Wages, Port Charges, or Expenses incurred subse- 
 quently, to the Performance of the General Average Sacrifice in 
 respect of which such General Average Contribution as aforesaid 
 shall be levied, shall be deducted from the Value of the gross 
 Freight. 
 
 108. Nothing in this Act contained shall affect the Rights of 
 Parties having Interests in the Freight as between themselves. 
 
 109. If, or when. Goods shall have been transhipped by anotlier 
 vShip, the Value of the Freight as regards its Liability to Contribu- 
 tion in respect of a General Average Sacrifice performed in behalf 
 of the Ship shall be the Value of the Freight as herein-before 
 determined, deducting from such estimated A'alue the Amount of 
 the transhipping Freight and increased Expenses attendant upon 
 the Transhipment. 
 
 110. Subject to the Provisions of this Act, when the Ship shall 
 have been chartered for an Outward and a Homeward Voyage by a 
 single Charter, the Freight in respect to its Liability to Contribu-
 
 92 MARITIME LEGISLATION. 
 
 tion for a General Average Act performed on the Outward Voyage, 
 shall be apportioned, so that no Part of the Freight earned on the 
 Homeward Voyage shall be liable to contribute in respect of such 
 General Average Act as aforesaid. 
 
 111. When the Ship shall have been chartered for an Outward 
 Voyage by one Charter and for a Homeward Voyage by another, 
 the Homeward Freight under the Charter shall, in case such 
 Charter shall have been effected before the Charter for the Outward 
 A'^oyage, be liable to contribute in respect of a General Average 
 Sacrifice incurred on the Outward Voyage. 
 
 112. The Freight paid by a Charterer of the Ship before the 
 Contract shall have been performed shall be liable to Contribution 
 in respect of a General Average Sacrifice made in its Behalf, and 
 the Shipowner shall be fro ianto discharged from Liability to such 
 Contribution as aforesaid. 
 
 113. When the Freight on Part of the Cargo is paid, 'lost or 
 not lost,' on the Shipment of the Cargo, the Shipper of such Part 
 of the Cargo as aforesaid, and not the Charterer, shall, in respect 
 to such Portion of the Freight as aforesaid, be liable to Contribu- 
 tion in respect of a General Average Sacrifice performed in behalf 
 of such Freight. 
 
 Hi. In respect to General Average Contributions, if the 
 Freight for the Ship shall have been paid in advance, no Reduction 
 shall Ije made of any l^art of the Wages due or to accrue due in 
 the Course of tlie Adventure, except for such Portion of the said 
 Wages as may be dependent for Payment upon the successful Issue 
 of the Adventure and shall have accrued due before the General 
 Average Sacvilici' in (|iie.sti()ii sliall liave been performed. 
 
 1 l-'t. "When the Ainoiiiil of an Fxpenditure or Expenditures as 
 defined by tliis Act shall he less llian tlie Value of the Property 
 saved at the 'rerniinaf ion of tlie Adxcnture, the contributory Values 
 of the Ship, I'l-riw-ht . anil ('arjj'o shall be deemed lo be tlieir Values 
 to the Owners of" iImiii nspert i\i'ly at the 'iV'rmination of the 
 Adventure. 
 
 I hi. \\'lien the Ainiiiinl o(" an l'].\ pciidlt ure or Fx]ienditures as 
 di'lini'd Ijy this .\et shall liaNc been greater than the N'alue of tlie 
 I'j-operty saved at flic Tei-mination of the Adventure, the Proceeds
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 93 
 
 of the Property so saved shall be applied towards the Liquidation 
 of such Expenditure or Expenditures as aforesaid, and the Excess 
 of the Amount of such Expenditure or Expenditures over the 
 Proceeds of such Property as aforesaid shall be so apportioned 
 amongst the Parties to the Adventure as that they shall be liable 
 for such Expenditure or Expenditures in the Proportions in which 
 they would have been liable if the whole Property which had been 
 originally at Risk in the Adventure had safely reached the Ship's 
 Port of Destination. 
 
 117. All Sacrifices, Expenses, or Losses which, as between the 
 ShipowTier, Charterer, Shipper, Passengers, and all Persons on 
 board, are General Average Losses witliin the Meaning of this 
 Act, shall also be deemed to be General Average Losses as between 
 Underwriters and Assured. 
 
 118. Parties to a Contract may enter into any special Agree- 
 ment in derogation of all or any of the Provisions of this Act, 
 anything herein-before contained to the contrary notwithstand- 
 ing. 
 
 Procedure. 
 
 119. After a General Average Sacrifice shall have been made, 
 the Master shall enter the Particulars thereof in his Logf Book, 
 and shall also draw up a Document stating the Circumstances 
 which, in his Opinion, rendered such General Average Sacrifice 
 necessary, and also containing a Description of the Property so 
 sacrificed as aforesaid ; and such Documents shall be signed by the 
 Master, Seamen, and by such Owners of the Property at Risk in 
 the Adventure as shall have been on board when the General 
 Average Sacrifice was made ; and the Master of every Ship, 
 whether registered or unregistered, shall deliver a Copy of such 
 Documents as aforesaid to the Shipping Master at the Port into 
 which the Ship shall be first brought after the General Average 
 Sacrifice shall have been made. 
 
 120. The Adjustment of General Average Contribution shall 
 be made either at the Ship's Port of Destination, or at the Port 
 into which she shall first properly and necessarily put after the
 
 94 MARITIME LEGISLATION. 
 
 Performance of the General Average Sacrifice in respect of wliicli 
 such Contribution as aforesaid shall be levied. 
 
 121. No Foreign Adjustment of a General Average Loss 
 shall be valid as between British Subjects unless such shall have 
 been made in conformity with the Law of the Port of Destination 
 of the Ship. 
 
 122. The Master of the Ship shall have a Lien upon and may- 
 retain all Property liable to a General Average Contribution until 
 the same shall have been discharged by the Persons liable in 
 resjDect thereof. 
 
 123. The Owner of Property or of ]\roney which shall have 
 been the Subject of a General Average Sacrifice may, after a 
 Demand and Refusal of the General Average Contribution due to 
 him in respect of such General Average Sacrifice as aforesaid, at 
 his Election sue the Consignee or Shipper of the Property liable to 
 such Contribution and the Master of the Ship either jointly or 
 severally. 
 
 124. The Owner of Property sold by the Master of the Ship 
 to discharge Liabilities properl}- incurred by him in respect of a 
 General Average Act or Loss shall in all Cases, irrespectively of 
 the Question whether the Master shall have given Security for 
 such Liability or not, have a Right of Action against all Persons 
 in respect of whose Property such General Average Act or Loss as 
 aforesaid shall have been performed or sustained. 
 
 125. In case the Consignee of Property shall, after Demand, 
 refuse to pay his share of a General Average Contribution due by 
 him in respect of such Property, the Master of the Ship shall have 
 a Right of Action against him and the Shipper of such Property, 
 either jointly or severally, as he may think proper, but shall have 
 no Chiim against any other Person, in respect of such Contribu- 
 tion, in tlie event of tlie Refusal or Inability of the Consignee or 
 Shipper to pay Kiicli Coul ril)iil ion. 
 
 120. In all Cases of Jiankruplcy a Claim for a General Average 
 Contribution shall, except as regards Debts of Record due to the 
 Crown, take IViority of all other Debts or Liabilities of the Parties 
 liable to such (jlencral Averagf- Coiit ribuf ion.
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 9.", 
 
 After tlie labours of the Glassjow Conference had 
 apparently so satisfactorily terminated, this was considered 
 to be the most suitable form in Avliich to obtain the 
 consent of the legislatures to uniform enactments on the 
 matter in question. For the reasons above set out, how- 
 ever, the Council of the Social Science Association had 
 been unable to comply with that part of the Glasgow 
 resolutions which desired that a period of six months 
 previous to another conference should be given to the 
 Chambers of Commerce and Underwriting Bodies there 
 represented for the consideration of the Bill to be delibe- 
 rated upon, and it was not until the month of April 1862 
 that the Bill was circulated among those concerned, to- 
 gether with a summons to meet for its discussion on June 
 6tli following in the Guildhall of the City of London. 
 
 Xow in order to shorten the public discussion on this 
 Bill, such of the delegates and others interested as 
 happened to be in town were invited to meet a few days 
 previously, when the Antwerp delegates presented the 
 following : — 
 
 Remarks on the General Average CoNsoLmATioN Bill drawn 
 UP BY the Care of the National Association for the Pro- 
 motion OF Social Science. 
 
 London : Aiiril 18G2. 
 
 The Chamber of Commerce of Antwerp having commnnicated 
 to the underwriters of this City the Bill on International General 
 Average received from the Association for the Promotion of Social 
 Science, some underwriters and persons competent in the matter 
 assembled in order to examine the Bill. 
 
 These persons have fully appreciated all the merit and talent 
 displayed in the framing of this important work, and on account of 
 that merit itself it has been unanimously regi'etted tliat the short
 
 96 MARITIME LEGISLATION. 
 
 time allowed for consideration does not permit to frame the remarks 
 with all the development required for a matter so important as 
 that which concerns General Average, and which is in so close a 
 connection with the contracts of affreightment, insurance, and 
 
 bottomry. 
 
 The ntilitv of uniformity in the matter being now universally 
 recognised, this point needs not to be referred to ; the remarks 
 framed in these lines on account of the shortness of time allowed 
 are only summary and chiefly based on expediency and practice, 
 as they cannot be accompanied by commentaries or considerations 
 on the origin of laws, doctrine or jurisprudence, neither on de- 
 finitions, effects, consequences or incidents relating to a General 
 Average Act. 
 
 1. Interpretation clause, perfect. 
 
 2. If the meaning of this article be well understood here, the 
 crew may perform a General Average act without the consent or 
 concurrence of the master. This principle appears to be dangerous, 
 as it may bring in collision the master with the crew, who may 
 contest his authority, so needful in a maritime expedition. 
 
 The Belgian and French laws appear to be more convenient, as 
 the view of the master is always preponderating, though submitted 
 to deliberation as much as circumstances permit to do so. 
 
 3 and I. In conformity with the general principles. 
 
 5. Admits that a person who has made a General Average ex- 
 penditure has a right to raise contribution, though the property at 
 risk in the adventure be totally lost. In such a manner an agent 
 at an intermediate port may apply to owners of property totally 
 lost, to be repaid for the advances he had made in order to gain a 
 commission or to procure a benefit to himself. Such agents ought 
 to know that in case of failure of the adventure they have no right 
 to claim. Besides, these advances may, in most circumstances, 
 be covered by an insurance or bottomry. 
 
 The Belgian and French laws limit- tlu^ contribution to the 
 value of the property saved, and a sliipowner is entitled to abandon 
 nh\\) and freight for expenses, debts, or liabilities incurred by the 
 master, neither is the owner of a cargo lost bound to pay expendi- 
 tures in case of total loss of his property ; provided, nevertheless,
 
 TNTEHNATIOXAL LAW OF GENERAL AVERAGE. 97 
 
 that he has not directly interfered himself or contracted liabilities 
 which, in that case, are obligations personal to the owner of ship 
 or goods who have contracted them. An amendment in this sense 
 is proposed. 
 
 6. Admitted. 
 
 7. It is proposed to add : ' The cases foreseen by Art. 25 always 
 excepted.' 
 
 8. Admitted. 
 
 .9. Is just, except the last section, relating to water spoiling 
 goods in performing a General Average act, which ought to be 
 suppressed in order to be in accordance with rule 37 ; or rule 87 
 to be amended and brought in concordance with rule 9. 
 10 and 13. Admitted. 
 
 14. It is asked if it would not be better to say : ' When a mast 
 cut away . . . shall have carried away another mast and a . . .' 
 instead of saying ' when the mainmast carries away the mizen- 
 mast ? ' 
 
 15. This article does not appear to be so clear as the resolution 
 voted at Glasgow, which required ' Special fticts clearly proved.' 
 Further, the new article says : ' Shall be deemed General Average 
 act as regards the ship.' Why should, then, the damage to cargo 
 not be deemed General Average act ? 
 
 16. Is in accordance with Art. 83, admitting equally the 
 damage to the cargo. 
 
 17. The value of a stranded ship must necessarily improve by 
 getting her off. How is this to be understood? The first para- 
 graph of this article is very just and clear. 
 
 18 and 19. Agreed. It is understood the damage directly 
 caused by the fire is necessarily Particular Average. 
 
 20. Agreed. Carrying a press of sail is a manceuvre the master 
 is obliged to perform when circumstances require it. 
 
 22. Admitted. These objects having become by themselves a 
 cause of peril, as is said in Art. 25. 
 
 23. x\dmitted. It would even be equitable to grant a re- 
 muneration to every person having become lame or incapable of 
 working in consequence of having concurred in such a defence 
 for the common interest. 
 
 11
 
 08 MARITIME LEGISLATION. 
 
 24. It would perhaps be good to add the words ' leakage of 
 liquids.' 
 
 25. This article is very good, but would it not be convenient 
 to specify some articles excluded from General Average, as, for 
 example, jettison of goods loaded on deck in any voyage whatever, 
 and even from houses on deck, which impede the manceuvring, 
 displace the centre of gravity, and cause the vessel to be thrown 
 on her beam-ends when heavy seas are shipped ? Jettison of water- 
 casks, spars, and all other ship stores stowed on deck, cutting away 
 the stern-boat, &c., ought neither to be considered as General 
 Average losses. 
 
 26. The first paragraph of this article is just, but the second is 
 very dangerous, as shipmasters may be induced to choose an inter- 
 mediate port at their convenience to remain there during winter 
 at the expense of the cargo. In order to prevent fraud and dis- 
 putes, would it not be expedient to amend the rule in a manner 
 that in such a case the cost of crew, wages, and provisions shall 
 only be deemed General Average losses until the time when the 
 vessel, being put again in a state of seaworthiness, should have been 
 ready to leave such a port if she had not been impeded by the 
 severity of climate ? 
 
 27 and 28. Agreed. 
 
 29. AVould it not be convenient to add ' leakage on liquids '? 
 
 30. Agreed. 
 
 31. This is very just, but does the word 'loss' comprehend 
 only material loss, or does it even comprehend the incidental losses 
 mentioned in rule 21 ? 
 
 In order to prevent abuses and disputes, it would perhaps be 
 expedient to admit only material losses. 
 
 32. As the application of this rule will lead sometimes to 
 diniciiltics, would it not be good to state, that in case of disagree- 
 ment on the real value of the goods so recovered (undoubtedly in 
 a damaged state), they shall be sold at public auction and the net 
 proceeds divided between all the property in proportion of the 
 aiiioiiiit tliey have colli nl)iifi'(l for? 
 
 33. This is logical, iiccordiiig to the disjrosilions of rul(> 1(5; 
 nevcrtlu'les.s, would i! iif)( Ijc more expedient not to admit such
 
 INTERNATIONAL LAW OF GENERAL AVE IJ AGE. GO 
 
 losses, or at least only admit them in case the stranding lias been 
 deemed intentional, according to rule 15 ? At all events, the 
 degree of damage resulting from such a discharge is very difficult 
 to state. 
 
 34. It would perhaps be useful to explain that this loss is to be 
 settled just in the same manner as a bottomry premium; that is 
 to say, that loss apportioned jiro rata on the amount of General 
 Average on the amount of special charges on cargo (if any), and 
 on the amount of Particular Averages and charges on ship and 
 owners (if any). 
 
 35 and 3G. Agreed. According to the resolutions voted at 
 Glasgow on points of expediency. 
 
 37. Is in contradiction with Art. 9. admitting as a General 
 Average act the damage caused to the ship by cutting a hole in 
 the deck, whilst rule 37 does not admit as a General Average act 
 the water running down through that same hole and so damaging 
 cargo. 
 
 Further : the last paragraph of rule 9 admits the damage by 
 shipping water in consequence of a General Average act, and rule 
 87 does not admit it. As a matter of expediency, it would perhaps 
 be desirable to suppress the last paragraph of rule 9 and to adopt 
 rule 37 as it is framed in the Bill, though contrary to principle. 
 
 38. This appears really unjust, and seems to be contrary both 
 to principles and to expediency. Abstraction made of the principle, 
 let us examine only the expediency. 
 
 1st. That part of a cargo which cannot be put again on board 
 the ship after repairs, and is necessarily left at a port of refuge, 
 constitutes very often a total loss, as it is frequently too small a 
 portion to be sent again to the port of destination by another 
 vessel, which is not always at hand. 
 
 Why must the property of A remain there, and not that 
 of B ? 
 
 Who is the supreme judge to decide whether A or B sliall be 
 put again on board or not ? 
 
 Rule 27 does not admit certain losses in order to prevent un- 
 due preferences on the part of the nuister. This reason alone would 
 plead in favour of brinufing a change in rule :>8 : the more so as 
 
 II 1'
 
 100 MARITIME LEGISLATION. 
 
 rule 40 admits as General Average losses those occasioned by fire, 
 theft, &c. We believe thus it is needless to bring forward other 
 considerations, and think it utterly convenient to propose the 
 framing of this rule as folloAvs : ' The loss of, or on cargo, by reason 
 of its beino- properly shut out or left at a port of refuge shall be 
 deemed to be a General Average loss within the meaning of this 
 Act.' 
 
 39. No objection. 
 
 40. Such losses ajjpear to be very remote consequences of a 
 General Average act, nevertheless they could be admitted as 
 ' consequences ' provided the loss on goods left at a port of refuge 
 be likewise considered as ' consequences,' and accordingly to be 
 deemed within the meaning of the bill as General Average losses. 
 
 41. On the ground of the same principle, and in order to 
 prevent abuses and exaggerated claims, it would be desirable that 
 the jettison or sacrifice of ship's provisions or stores be ruled in the 
 same manner — i.e. (1st) that the master should be held to have on 
 board duly verified accounts of such provisions or a list of such pro- 
 visions certified by the competent authorities of the port of de- 
 parture ; (2nd) that the master should be held to have on board an 
 authentic and certified list of all the objects of inventory or ship's 
 stores, comprising also the spare stores ; and (3rd) that the master 
 shall be held to replace all such objects as are proved to have been 
 lost as aforesaid, and not be paid by General Average contribution 
 on the mere estimate of surveyors not accompanied by the proof of 
 the objects having been replaced. 
 
 43. This rule ought to bo brought in accordance with rule 38, 
 if amended. 
 
 AG. Could the time during which the wages and provisions are 
 allowed not be more or less limited ? 
 
 47. In what manner and by what aulliority will be valued the 
 reimbursement to which the hostage shall bo entitled ? 
 
 49. As it would almost be impossible to appreciate beforehand 
 if the costs of discharging and forwarding cargo to its destination 
 should b(! less in aiiioiiiit lli.'iii tli<isc to be incurred for heaving llie 
 sliij) off. it wiiiild ])i'i-li;i|)-; be rxprdlrnl to su|)|)i-ess the last para- 
 y ra|)li of t liis i-iil(!.
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 101 
 
 50. Same observation as on rule 17, as it is not well under- 
 stood how the value of the ship should not be improved by getting 
 her off. 
 
 52. In order to bring in concordance this rule and rule 2G, 
 and to avoid abuses and difficulties in the application of this rule, 
 would it not be expedient to admit only in General Average the 
 crew's wages and pi'oxisions from the date of the arrival of the 
 ship in the port of refuge until the day when the vessel, being 
 again in state of seaworthiness, will be ready to put to sea, the 
 allowance for provisions to be calculated at a fixed rate ? See rule 
 20 on account of contrary wind, calm, frost, &c. ; see also rule 71-. 
 
 53. It appears that the costs resulting from a vessel putting 
 in a port of refuge on account of sickness of the crew or want of 
 provisions ought not to be deemed General Average losses ; neither 
 those resulting from shifting of the cargo, or pumps being choking, 
 unless it be proved that these accidents do only arise from the perils 
 of the sea and not from the fault of the master from not having 
 scrupulously stowed the cargo, or the pumps being put in good 
 order at the port of departure. 
 
 57. Is it understood that the expenses incurred in consequence 
 ' of an accident at the port of refuge ' refer to an accident on the 
 ship? 
 
 58. We propose to add : ' Inasmuch as the master proves that 
 the cargo has been properly stowed according to the regulations of 
 the port of departure.' 
 
 60. It would perhaps be advisable, on account of expediency, to 
 suppress this rule, as it might give rise to very exaggerated claims 
 for wages and provisions. 
 
 What is the real meaning of the words ' delay at sea in order 
 to refit ' ? 
 
 (51. Heated goods being themseh^es a cause of peril, it is just 
 that the expenses mentioned in this rule be not admitted as General 
 Average expenses ; but the words, ' except it be to the advantage 
 of all the property at risk in the adventure,' can they not pro- 
 duce abuses, as the owner of such goods shall be led to pretend 
 that the discharging of such goods is for the advantage of all the 
 ]u-op(M-tv which may become damaged or deteriorated if the dis-
 
 102 MARITIME LEGISLATION. 
 
 charge does uot take place ? Would it not he better to sujopress 
 these words ? 
 
 62. As concerns repairs to the ship, would it not be advisable 
 to introduce a rule stipulating that, in order to compensate the 
 supposed difference between the old objects sacrificed replaced by 
 new ones, and according to the use now generally adopted, — ' Shall 
 be deducted from all repairs, replacements, workmanship, in con- 
 sequence of General Average sacrifices, one-third from the justi- 
 fied cost of these works at the port where they have been made ; 
 nevertheless no deduction is to be made from the price of anchors 
 and 15 per cent., or one-sixth only, from iron chain cable.' 
 
 64. The dispositions of this rule are very just and clear as 
 concerns repairs, but on the point of crew's wages and pro- 
 visions they are not in accordance with Arts. 52 and 53, which 
 admit as General Average expenses those resulting from the vessel 
 having put in a port of refuge either by a General Average sacri- 
 fice or by accidental damage to ship and cargo ; as in practice the 
 division of wages, and applying them partially on repairs for 
 General Average, and partly on repairs for Particular Average could 
 only be done in a very arbitrary manner, and lead to many abuses, 
 for why, then, should not also the warehousing of cargo be divided 
 in two parts — one during repairs for General, and one during re- 
 pairs for Particular Average ? Vie prefer to admit in General 
 Average the wages during the whole time of detention, as is said 
 in our observation on rules 52 and 5o. 
 
 65. Why should not a person who has made an expenditure in 
 a port of refuge be entitled to reindjursement of the premium of 
 an insurance he had taken in order to cover himself for the loss of 
 the sum expended, the more so, that by this insurance premium 
 have been avoided the more considerable expense of a bottomry 
 ]iifiiiiiiiii, wliicli would have bci-n cdii.sidcrrd a General Average 
 
 loss y 
 
 72. Rule 75 states that in cii.'-c <»!' t()t:il loss of ship and cargo 
 tlj< re sli.ill be no contribution ; how, then, is rule 72 to be under- 
 stood as coMccnis loss of ships sloics when the ship shall have 
 been wi-(cl<((| licCorc llicy shall Iki\c Imcm replaced ? 
 
 7'I. Js it to he understood that the \alue of sacrificed ship's
 
 LNTKUNATIONAL LAW OF GENEKAL AVERAGE. K)'. 
 
 stores shall be reimbursed at the value of the poi't of destination, 
 and that if they are not replaced the reimbursement will be 
 eifected on an estimation of surveyors who should value these pro- 
 visions at their cost price at the moment of arrival of the vessel at 
 its destiiuition ? On account of rule 41 we have already advised 
 that it would be exi)edient, in oi-der to prevent frauds and abuses, 
 to oblige the master to replace all stores and objects proved to have 
 been sacrificed, and not to admit estimations not accompanied by 
 proof of the objects having been replaced. 
 
 Kule 71> states that the provisions shall be estimated at the 
 amount for which the replacing of such provisions or effects shall 
 or would have cost. 
 
 71. In accordance with rule 05; but according to rule 120 
 it is allowed to draw statements of General Average in ports of 
 refuge. 
 
 How is it possible to be acquainted in such a port with the 
 value the property would have at the port of destination ? See 
 Arts. 00 and 120. 
 
 75. Would it not be ad\isable to change rule 5 and make no 
 distinction between a sacrifice and an expenditure in case of total 
 loss of ship and cargo, as said in the observations on Art. 5 ? 
 
 70. The value of such property appears to be nought. 
 
 70. See observ-ations on Art. 73. 
 
 82. The first paragraph of this article is very clear and just, 
 but the last is totally unintelligible. 
 
 80. As concerns ships in ballast, it appears to us that the 
 freight expected to be earned in virtue of a subsequent charter is 
 too indirectly at risk in the adventure to be liable for contribution 
 of a sacrifice made on board a vessel navigating in ballast though 
 under charter. 
 
 This system presenting too many inconveniences, it has 
 nearly universally been abandoned to draw statements on vessels in 
 ballast. 
 
 And as it is now also nearly universally adopted to settle the 
 (Jeneral Averages on each voyage separately, it a]ipears desirable 
 to amend in that sense this rule as well as rules 110 and 111. 
 
 02. MoufV lent on bottonu'v ought to be Vui\Ac to contriluitiou,
 
 104 MARITIME LEGISLATION. 
 
 for if a sacrifice saves tlie property at risk in the adventure tliis 
 sacrifice saves also the loan which is lost for the lender in case of 
 total loss of the property on which it has been lent. 
 
 93. The motives of this distinction are not understood. Why 
 do articles of great value only contribute for one-fourth of the 
 amount entered in the bill of lading, whilst the same articles of 
 sacrifice are reimbursed for their whole value ? 
 
 The admission of such a system does appear unjust, and it is 
 deemed advisable that these articles should be liable to contribu- 
 tion on their real value at the port of destination, valued by com- 
 petent surveyors. According to an English custom, landing specie 
 in case of stranding, salvage or shipwreck is not to be considered 
 as General Average ; that specie pays its own expense, and does 
 not contribute according to its real value in the general expenses 
 of landing. 
 
 It would also be desirable that this should be abrogated by a 
 rule as well, that of articles of great value and money only con- 
 tributing for one-fourth of their value. 
 
 The preceding observations are not based on expediency, but 
 on principle. From the most remote times to our days we do not 
 find any laws establishing a difference between money or valuable 
 articles in case of salvage or contribution. 
 
 Even the Roman law, which is generally admitted as the foun- 
 dation of all our legislative system, does not make any difference 
 in it, and this is very just. The following dilemma may be applied 
 in the case : — 
 
 The sacrifice has, or has not, saved the property. 
 
 If the property be saved, it has 1o contribute according to its 
 value saved. 
 
 If the property be not saved, it has not to contribute. 
 
 Thus, in case of confribnl ion, no (list inct ions on account of 
 \';diiable articles ought to \h'. iidniittcd. 
 
 'Jo. If it is just and ra(i(iii;il Mint tlic conl iil)iif ive values are 
 those at the port of dcst iiml inn, would it not he desirable for 
 (•liici(l;itii)ii t(i st i))iil;itc tli;it if is undcisl odd tlicsc values arc those 
 of the property in the state in which it arrives at said ])ort or 
 destination ? — as, for fxatiiph-. 
 
 ,>«li
 
 INTERNATIONA!. LAW OF GENEliAJ. AVEIIAGE. lOo 
 
 The cargo being damaged shall liavc to contribute according to 
 the value in its damaged state, subject to the deductions stipulated 
 in Art. 96. 
 
 The ship equally in her damaged state, to which should be 
 added the amount admitted in General Average for voluntary 
 sacrifices. 
 
 If the vessel be repaired at an intermediate port of refuge, and 
 arrive fully seaworthy at her port of destination, surveyors at that 
 port should establish the value the vessel would have had if she 
 had arrived at her destination in the same state of damage in 
 which she was on the arrival at the port of refuge. 
 
 Vessels are frequently valued at the port of refuge, but this 
 value being quite nominal in a port where they put in accidentally, 
 this value may not be considered as the real value liable to con- 
 tribution. 
 
 For the same motives it ought not to be permitted to draw up 
 statements of General Average in ports of refuge unless the ship 
 be legally sold there on account of unseaworthiness and the cargo 
 sent home by another vessel, as we have observed at Art. 74. See 
 also Arts. 120 and 121. 
 
 96. As the contributive value of cargo ought to be that really 
 saved by a sacrifice, no other costs should be deducted from the 
 market price at the port of destination than those which, in con- 
 formity with Art. 74, are to be deducted from the amount to be 
 paid to the owner of jettisoned goods. These costs are : custom-house 
 duties, landing, cartage, storage, and ordinary brokerage for sale. 
 
 97 and 99. As already said in Art. 5, it would be desirable not 
 to admit a distinction between ' sacrifice ' and ' expenditure.' 
 
 Furtlier : how is it possible to appraise exactly the value of 
 property at the time when the expenditure or disbursement has 
 been made ? 
 
 100. It is thereby understood that the loss of goods landed in 
 barges in order to cross a bar in leaving the port of departure — as, 
 for example, the bar of Sulina — be always excepted. 
 
 In that case we approve. 
 
 101. Would it not be convenient after the words, ' The principal 
 vessel and the remainder of the cargo,' to add. ' and the fn-ight "■;
 
 100 MAPJT1>[E LEGISLATION. 
 
 104. Why not the real values? This article ought to be put 
 in accordance with Art. 32. 
 
 105 and 107. Does the contributory value of freight include 
 primage ? We think affirmatively. 
 
 As it is very difficult, if not impossible, in most circumstances 
 to establish the precise moment of the sacrifice, it appears to be 
 convenient to deduct from the freight all charges which would not 
 have to be paid if the freight had not been earned. 
 
 For example, ought to be deducted the total amount wages 
 due to the crew, less those advanced to the said crew before the 
 beginning of the voyage, because these wages being earned at all 
 events do no longer depend upon the successful issue of the adven- 
 ture. 
 
 The port charges at the port of destination ought also to be 
 deducted from the gross freight. 
 
 108. Appears superfluous, as not being directly in connection 
 with General Average. 
 
 110 and 111. As we have remarked in Art. 86, it would be con- 
 venient that this Bill should stipulate that the General Averages 
 be settled on each voyage separately, because the freight of goods 
 not yet on board is only indirectly at risk in the adventure. 
 
 111. The wages dependent on the successful issue of the adven- 
 ture are those not paid in advance, as observed on account of Arts. 
 105 and 107. 
 
 115 and 1 IG. As said on account of Arts. 5 and 75, we consider 
 it desirable that the present Act should stipulate that the liability 
 of property is limited to its value saved as well as concerns sacri- 
 fices as expenditures or disbursements. 
 
 117. Underwriters ought also to be responsible only to the 
 insured amount. 
 
 ] IS. It would [x'rhaps be ])r(Tci-;il)]t' iiot to admit derogations. 
 12') and 121. As we havf alrcidy <il)srr\ cd on account of Arts. 
 7't and 95, we believe the sd ili'intiit nf n (Iciici-al Average in a- 
 port of refuge ought onK to lie ullowccl in the case we havi' (juoted 
 in our rini;irks <m saiij .nliclrs. 
 
 I2;>iinil 125. \Xr l)clic\i' it onu'lif not to lie permit ted to t he 
 in;i>ter to .>-iie at leisui'e (lie slii|)|iei- or the consignee, tlie |)i'o|)erfy
 
 INTERNATIONAL LAW OF GENEllAL AVERAGE. 107 
 
 alone ought to tlie extent of the value saved, and not the shipper, 
 who very often lias sold the goods and has no longer interest in 
 the property at risk in the adventure. 
 
 (Signed) T. C. Engels, 
 
 President of the CoiumUtce of Underwriters of the 
 First, Second, and Third Reunions. 
 
 (Signed) Ed. van Pebokgii, 
 
 Average Stater. 
 Antwerp: May 31, 1802. 
 
 In course of tlie prcliiniiiaiy discussions which l(Jok 
 phxce on the diflerent clauses of this draft \^\\\ the fol- 
 lowing alterations were adopted, viz. : — 
 
 1. In the Interpretation clause — 
 
 a. ' Ship ' shall include ; to strike out the word • privateer.' 
 h. To leave open for later discussion ' General Average 
 sacrifice.' 
 
 c. To leave open for later discussion ' General Average 
 
 expenditure.' 
 
 d. To add under ' Unusual Peril ' after cliffs, the word : 
 
 ' collisions.' 
 
 2. To be struck out altogether, as too dangerous to invite 
 
 subordination. 
 
 5. To be left open for future discussion. 
 
 G. To strike out the words ' either preliminary or necessarily.' 
 
 9. To strike out the words ' either preliminary or (as the case 
 may be) necessarily.' 
 
 1 and 1 1 . To be struck out altogether. 
 
 1 4. To be amended as follows : ' When a mast, after having bc^en 
 cut away for a General Average purpose or sacrifice, shall in its de- 
 scent have carried away another mast, or have injured the boats 
 or bulwarks or any other part of the ship or of the cargo, then in 
 such case the damage which such mast shall have so done as afore- 
 fsaid to any part of the property at risk shall be likewise deemed 
 to be a General Average loss within the meaning of this Act.' 
 
 ]j and 17. To be left open for future discussion. 
 
 II*. 'Yo be transposed before clausf 11.
 
 108 MARITIME LEGISLATION. 
 
 20. To strike out the words ' crowding or hoisting.' 
 
 21. To be struck out altogether. 
 
 28 and 29. To be left open for future discussion. 
 
 31. To be struck out altogether. 
 
 32. To be altered in conformity with the Antwerp proposal. 
 
 33. 35, and 36. To be left open for future discussion. 
 
 37. To be amended as follows : ' All damage done to the cargo 
 by water getting down the hatches at the time of a jettison or other 
 General Average act being or having been made, shall be deemed 
 to be a General Loss within the meaning of this Act.' 
 
 38. To strike out the iirst word ' No,' and put instead the word 
 ' All.' 
 
 39. 40, and 43. To be struck out altogether. 
 
 49. To strike out the words : ' Except in cases where the cargo 
 could have been discharged and forwarded to its destination for an 
 outla}' or loss less in amount than the cost incurred in heaving the 
 ship off.' 
 
 50. To be left open for future discussion. 
 
 52. To add the words, ' To the time of being ready for sea ' 
 before ' be deemed,' &c. 
 
 54. To be amended as follows : ' All expenses directly resulting 
 from bearing up for a port of refuge, the expense of discharging the 
 cargo there, and the hire of lighters in order to avoid discharging 
 part or the whole of the cargo there, if properly and necessarily 
 incurred by the master, shall be deemed to be General Average 
 losses within the meaning of this Act.' 
 
 55. To be left open for future discussion. 
 
 57. To be amended as follows : ' The expense of warehouse 
 rent at a port of refuge on cargo necessarily discharged there, and 
 the expense of re-shipping it, and the outward port charges properly 
 inciiriiMl bv the, master at such port, simll, wlien the original con- 
 tract of affreiglitment shall not luivc been terminated, be deemed 
 to be General Average losses within the meaning of this Act.' 
 
 GO. To bo struck out altogether. 
 
 02 and 1. To be allefed in eonlorinily with the Antwerp 
 proposals. 
 
 (')'}. 'I'o lie amended as follows : ' Hottomry. respondentia, the
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 109 
 
 premium of insurance on money expended, and all other interest 
 and commission properly incurred by the master at a port of 
 refuge, with respect to a General Average act, shall be deemed to 
 be General Average acts or losses within the meaning of this Act.' 
 
 68. To add the word ' all ' before ' the property ' &c. 
 
 69. To strike out the words ' and no freight shall have been 
 earned by him in the adventure.' 
 
 70 and 71. To be struck out altogether. 
 
 73. The last part of the clause from the word ' but ' to be 
 struck out. 
 
 78. To be struck out altogether. 
 
 79. To strike out the words ' or would.' 
 
 80. To be left open for future discussion. 
 82 and Sk To be struck out altogether. 
 
 85. To be left open for future discussion. 
 
 86. To be left open for future discussion. 
 88 and 90. To be struck out altogether. 
 
 91. To be amended as follows: 'If the ship alone shall be 
 liable to confiscation for a breach of international law, then in such 
 case no lo?s sustained by the shipowner in order to avoid such 
 confiscation shall be deemed a General Average loss within the 
 meaning of this Act.' 
 
 92. The first words, ' arms, ammunition, and other munitions 
 of war,' to be struck out. 
 
 93. To be struck out altogfether. 
 
 9-1. To be left open for future discussion. 
 
 95. To be amended as follows : ' Subject to the provisions of 
 this Act, the contributory value of property in respect to a General 
 Average contribution shall be its value to its owner on the termi- 
 nation of the adventure as reg-ards it.' 
 
 96. To be amended as follows : ' For all purposes of a General 
 Average contribution, the freight, duties, landing charges, broker- 
 age, discounts incurred subsequently to the performance of the 
 General xVverage sacrifice, in respect to which the G'cneral Average 
 contribution shall be levied, shall be deducted from the value of 
 the cargo when assessed as directed by this Act.' 
 
 97 !ind 98. To be left open for futuro discussion.
 
 110 MAEITIME LEGISLATION. 
 
 99 and 100. To be struck out altogether. 
 
 101. To be left open for future discussion. 
 
 102, 103, 104, and 105. To be struck out altogether. 
 
 106. To be left open for future discussion. 
 
 107. To be amended as follows : ' In estimating the contribu- 
 tory value of freight with respect to General Average contrilmtions, 
 the value of those wages, port charges, and other expenses, the 
 liability to which is contingent upon the earning of the freight, 
 shall be deducted from the value of the gross freight only with 
 two-fifths.' 
 
 108 and 109. To be struck out altogether. 
 
 110 and 111. To be left open for future discussion. 
 
 112 and 113. To be struck out altogether. 
 
 111. To be amended as follows: 'In respect to General 
 Average contributions, no deduction shall be made under section 
 107 for any freight paid in advance.' 
 
 115. To be struck out altogether. 
 
 lie. To be left open for future discussion. 
 
 117 and 119. To be struck out altogether. 
 
 120 and 121. To be left open for future discussion. 
 
 122. To be amended so as to give to the consignee a similar 
 lien on tlie ship. 
 
 123, 124, 125, and 126. To be left open for future discussion. 
 And that therefore only the following clauses passed without any 
 alteration or amendment, viz. . 3, 4, 6, 7, 8, 12, 13, 16, 18, 22, 
 23, 24, 25, 26, 27, 30, 34, 41, 42, 44, 45, 46, 47, 48, 51, 53, 56, 
 58, 59, 61, 63, Gii, 67, 72, 7 I, 76, 77, 79, 81, 83, 87, 89 and 118. 
 
 Thi- inllow iiiii" is llic rcporl of tlu- preliminary com- 
 mittcc (•niiiiiiuiiicarniL'" llic result of llieii- delibenitions to 
 Sir Traver.s Twiss, the Presich-nl ol' wlial is known as the 
 second International (ieneral A\'erage Congress, viz. : —
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. Ill 
 
 NATIONAL ASSOCIATION FOB THE PROMOTION OF 
 SOCIAL SCIENCE. 
 
 Committee on General Average. 
 
 To the President of the VI. Department Trade and International 
 Lair, Travers Twiss, Esq., Q.C., D.C.L. 
 
 3 Waterloo Place, PaU Mall : June 9, 1862. 
 
 Sir, — Having been elected to preside over this Committee, which 
 was summoned by the Secretary to the Executive Committee of 
 this Association for the preliminary discussion of the General 
 Average Consolidation Bill, it is my duty to submit to you for the 
 information of the sixth annual meeting of this Association the 
 following report on the proceedings of this Committee. 
 
 I beg to hand you herewith a return of the gentlemen present 
 at the proceedings of this Committee which has been assembled on 
 the 4th, 5th, and 7tli of this month, not only for the purpose of 
 expressing their opinions on the Bill laid before them, but, if 
 possible, to come to an understanding about the same. 
 
 Although the Committee has been in deliberation for nearly 
 twenty hours during these three days it has been impossible to 
 attain the latter so-much-desired result, and you will find on the 
 copy of the. draft of the Bill which I hereby enclose, that from 
 the 126 sections which it contains the Committee has decided as 
 follows : — 
 
 (1) That these 29 sections which are designated with a query 
 could not be agreed upon, and were particularly left open for public 
 discussion. 
 
 (2) That 22 sections were proposed to be altered as amended. 
 
 (3) That 30 sections were proposed to be struck out altogether. 
 
 (4) That the draftsman of the Bill was desired to alter five 
 sections as instructed. 
 
 (5) And that only 40 sections passed as they were originally 
 proposed. 
 
 The written remarks of the Antwerp delegates were handed to 
 Mr. OHara as a guide for some of his amendments. 
 
 You will be kind enough to observe that the results of the
 
 112 
 
 MAEITIME LEGISLATION, 
 
 Committee's deliberations are marked in red on the draft of the 
 Bill. — I hare the honour to be, Sir, 
 
 Your obedient humble Servant, 
 (Signed) Ernst Emil Wendt, Chairman. 
 
 Return of the Gentlemen present at the Proceedings of the 
 Committee on General Average at. their Meetings at 
 3 Waterloo Place, Pall Mall, on June 4, 5, and 7, 1862. 
 
 Eemarks. — The I., II., and III. added to the names of every gentleman 
 are to denote the meetings on which he has joined in the deUberations. 
 
 Amsterdam 
 
 Antwerp . 
 Boston, U.S. 
 
 Copenhagen 
 Liverpool . 
 
 London 
 Rotterdam 
 
 J E. N. Rahusen 
 \ J. Wertlieim 
 r Theodore C. Engels 
 \ E. van Peborgh 
 
 J. Russell Bradford 
 r Severin Gram 
 < Svendson . 
 L Edward Thune 
 
 L. R. Baily 
 
 Lowndes . 
 
 P. H. Rathbone 
 
 J. Brown . 
 
 C. Leathley 
 
 O'Hara (as Draftsman of th 
 Bill) . 
 
 W. Richards 
 \ Ernst Emil Wendt 
 
 Driebeck . 
 
 I. IL III. 
 
 I. II. IIL 
 
 IL III. 
 
 I. II. III. 
 
 I. II. IIL 
 
 II. IIL 
 
 IL IIL 
 
 IL IIL 
 
 III. 
 
 IIL 
 
 IIL 
 
 I. II. IIL 
 
 III. 
 
 III. 
 
 }:. „. 
 
 IIL 
 I. II. IIL 
 IIL 
 
 (Signed) Ernst Emil Wendt, 
 
 as Chairman. 
 
 London : June 9, 18G2. 
 
 J)iiriiiLf iIk' i)iil)li<' discussions which followed in 
 the Guildh;ill. ii hcrniiic evident that the Committee for 
 iii;in:i<jiiiLi- ihc ;ill;rns of Lloyd's, which not only assisted in 
 iijili;i!iiiL'' lliis inoxciiiciit, hiil iiiiiuediately aflcr llie Glasgow 
 Coii^n-ess passed lln- ;il)ove set out highly complimentary 
 resolution on the siilijcct, was oflicially wilhdrawiiig from 
 it. The letter which iniimaled this unexpected event 
 ran as follows : —
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 113 
 
 Lloyd's (E.C.) : June r-, 1862. 
 
 Sir, — T have received and laid before the Committee for manag- 
 ing the affixirs of Lloyd's your letter of May 30, stating that 
 a discussion is to be held in the Trade and International Law 
 Department of the National Association for the Promotion of iSocial 
 Science, on the amendment of the law of ' General Average,' and 
 inviting some representatives of the Committee to attend the meet- 
 ing ; also enclosing a copy of the Bill and documents relating to 
 the subject. 
 
 I am directed to inform you in reply, that the Committee, having 
 looked over the heads of the Bill, and given the subject full con- 
 sideration, are so totally opposed to the several clauses contained 
 in the Bill in question, that they are of opinion that no good could 
 arise from any discussion on their part, and they therefore do not 
 think it advisable to send a representative from their body to the 
 meeting. 
 
 At the same time, they request me to assure you it is their 
 earnest wish at all times to co-operate with parties interested in 
 this question, when they see any opportunity of doing so with 
 advantage to the very important interests at stake. — I am, Sir, 
 
 Your obedient Servant, 
 (Signed) Geo. A. Halsted, Sccretari/. 
 
 G. W. HastiiifTR, Esq., Honorary Secretary, 
 National Association for the Promotion 
 of Social Science. 
 
 It can easily be understood that under such circum- 
 stances the first step which the assembled delegates took 
 on June 6, when the congress had been opened, was 
 to desire their President to address Lloyd's Committee 
 with the view of inducing them to attend (as in Glasgow) 
 by delegates. The meeting of the congress was there- 
 upon adjourned to June 9, when, as no notice of this 
 communication had been taken, the delegates authorised 
 their President to write to the Chairman of Lloyd's the 
 following letter : — 
 
 I
 
 114 MARITIME LEGISLATION. 
 
 June 9, 1862. 
 Sir, — I have been authorised, as President of the Department 
 of Trade and International Law, to transmit to you the first report 
 of the Committee on General Average, as laid before me as Presi- 
 dent of the Department, Avith the result of their early deliberations. 
 Tou udll perceive that the provisions of the draft Bill have been 
 snbmitted by them to a severe examination, and that they have 
 onlv approved forty out of one hundred and twenty-six sections, 
 whilst they have voted twenty-nine sections as questionable, and 
 refeiTcd back tAventy-two sections for amendment, having absolutely 
 rejected thirty sections. I have laid before the Department the 
 letters which I have received from the Secretary of your Committee ; 
 and in consequence of the impossibility, as expressed by the 
 Secretary, of laying the communication, made by me on behalf of 
 the Department, before the Committee until their meeting on 
 Wednesday next, the Department has adjourned the further con- 
 sideration of the question until Thursday next, in the confident 
 hope that your Committee will delegate one or more of its members 
 either to discuss the question before the Department, or to confer, 
 if they prefer it, with the Committee on General Average, whose 
 names you will find inscribed to their report. From the discussions 
 which have already taken place, I am enabled to assure your Com- 
 mittee that it is the earnest wish of the Foreign members of this 
 Association who are interested in the question of General Averag-e, 
 to act, if possible, in co-operation with Lloyd's, and that they desii-e 
 very much to be favoured with their assistance upon many branches 
 of the subject, in which their great experience is calculated to have 
 great influence upon the decisions of the Committee. 
 
 I am, Sir, &c., 
 (Signed) Tr avers Twiss. 
 
 To this coiniiiuiilcalioii ihe President received the 
 following answer : — 
 
 Lloyd's : Juno 11, 1862. 
 Sir, — "^'our 1( -tiers of the rcsiiccf iv(> dates of June G, 7, and 9 
 li;iv«- this day been read to llir ( '(niitiiif tec of j;loyd'.s, and as they 
 considt'r that you cannot beawaic of (he circumstances under which
 
 INTERNATIONAL LAW OF GENERAL AVET^A(!K. lir, 
 
 tliey felt precluded from sending any depnt.ition of their body to 
 the meeting of the Trade and International ]jaw Department of the 
 National Association for the Promotion of Social Science, they 
 desire shortly to recount them. 
 
 In the month of April 18(50, on the receipt of a letter from 
 Mr, Rundell, St^cretary to the ' Liverpool Committee on International 
 General Average,' and also on the previous solicitation, personally, 
 of Mr. Rathbone, of Liverpool, this Committee readily promised 
 their assistance in aid of the Glasgow meeting, by obtaining 
 through their agents abroad such information on the system of 
 General Average as was desired. 
 
 In May 18G0 this Committee proceeded further, and joined, 
 through their Chairman, Mr. Thomas Baring, in the circular signed 
 by about twelve of the Public Associations of this country, in 
 asking the attendance of delegates from abroad at the meeting at 
 Glasgow. 
 
 The Committee of Filoyd's, deeming it of importance that the 
 Glasgow Conference should have as much information as possible, 
 forwarded to the most important of their agents copies of the 
 Liverpool Synopsis of Average for any remarks thereon, and in 
 September 18G0 again informed them of the necessity of their 
 sending an early reply to Mr. Rundell. In September 18G0, Mr. 
 Leathley, a member of the Committee of Lloyd's, was requested to 
 represent the Committee at the Glasgow meeting. 
 
 In October 1860, Mr. Leathley reported that he had so attended, 
 and that resolutions, of which I enclose a copy, were passed, on 
 which the cordial thanks of the Committee were given to Mr. 
 Leathley for his trouble. The thanks of the Committee were also 
 given to those gentlemen who had attended from abroad, and the 
 assurance of the Committee was expressed that they would gladly 
 co-operate in any endeavours to amend the laws referred to in the 
 resolutions. 
 
 From that time until June 2 inst. the Committee of Lloyd's have 
 received no further communication on the subject, but on Wednes- 
 day last the following letter, addressed to the Committee of Lloyd's, 
 was read, dated Old Bond Street, May 30, 18C2 :— 
 
 ' Gentlemen, — A discussion is to be held in the Trade and 
 
 I 2
 
 IIG MARITIME LEGTSLATIOX. 
 
 International Law Department on the amendment of the law of 
 General Averao-e. We should be obliged if some representatives 
 of your body would attend the meeting. I beg to enclose a copy 
 of the Bill and documents relating to the subject. — I am, &c., 
 (Signed) G. W. Hastings, Honoranj Secretarij.' 
 
 A course of proceeding so completely at variance with the 
 decision of the Glasgow Congress, wherein six months' notice was 
 provided, and the sudden call at a day's notice to consider and dis- 
 cuss a subject so difficult, and of such vast and varied importance, 
 left the Committee of Lloyd's no option but respectfully to decline 
 taking part therein. 
 
 I am further to convey to you the thanks of the Committee for 
 your having informed the delegates from abroad that this Committee 
 could not intend any discourtesy to them. The cordial support 
 rendered by the Committee of Lloyd's in 1860 ought to prove it, 
 and had the Committee been informed that those gentlemen had 
 been invited to attend, they would with pleasure have joined in 
 every mark of courtesy to delegates who at much personal incon- 
 venience are now in London. 
 
 The Committee refrain from entering on the numerous objections 
 which are apparent on the face of the proposed alterations by the 
 Bill, but on receiving from the congress the result of their present 
 discussions will be ready to give their best attention to it. 
 
 Tlic Committee will feel obliged if you will read this communi- 
 cation at the meeting of your Department to-morrow. — I am. Sir, 
 
 Your obedient Servant, 
 (Signed) Geo. A. Halsted, Secretarij . 
 
 To Doctor TravcrR Twiss, President of the 
 Department of Trade and International 
 Law, National Association for the 
 Promotion of Social Science. 
 
 Tliis letter was presented at the meeting of the dele- 
 pates on June 12, which thereupon jointly and separately 
 made known their respertivc jjiotcsts against the conduct 
 (.r t1i(' Coiiiiiiitlce for inaji.'igiiig the nflairs of Lloyd's, and 
 agreed iiiianiiiioiisly that no ])iiblic discussion on the sub-
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 117 
 
 ject of General Average should take place on this occasion 
 in the Guildhall. 
 
 The delegates having then adjourned to my offices, a 
 commencement was made with the deliberation of such 
 clauses of the draft liill which had in our preliminary 
 meetings been reserved for future consideration, and the 
 following alterations were adopted, viz. : — 
 
 1, Interpretation clause to be amended as follows : — 
 
 ' General Average sacrifice ' shall mean a prudent and extra- 
 ordinaiy sacrifice of property made by the master in order to avert 
 an unusual and imminent peril from the ship, freight, and cargo. 
 
 'General Average expenditure ' shall denote any outlay properly 
 made, or any liability on behalf of the property at risk properly 
 incurred. 
 
 5. To be struck out altogether. 
 
 15, To l)e amended as follows : — 
 
 Loss or damage caused to the ship, cargo, and freight as the 
 immediate and necessaiy consequence of a voluntary and prudent 
 stranding of the ship shall be deemed to be a General Average loss 
 within the meaning of this Act. 
 
 In order to complete the proceedings of this rather un- 
 fortunate second International General Average Congress, 
 the draftsman's alterations to the 13111, which he based on 
 the suggestions of the preliminary meetings of the dele- 
 gates, are here subjoined : — 
 
 IXTERPRETATIOX CLAUSE. 
 
 Section 1. — ' General Average sacrifice ' shall mean a prudent 
 and extraordinary sacrifice of property at risk in the adventure 
 made by the master in order to avert an unusual and imminent 
 peril from the ship's freight and cargo. 
 
 Line 27. — ' General Average expenditure ' shall mean a prudent 
 and extraordinary sacrifice of property or money not at risk in the 
 adventure, in order to avert an unusual and imminent peril from 
 the ship, freight, and cargo. (This section will prevent sales of
 
 118 MARITIME LEGISLATION. 
 
 goods at Jin interinediate port being contributed for, as tlioy are 
 at present contrary to principle, as expenditure.) 
 
 Ship, Fkeight, and Cargo. 
 
 Section 15. — Loss or damage immediately and necessarily 
 caused to the ship, cargo, and freight by a voluntary and prudent 
 stranding of the ship shall be deemed to be a General Average loss 
 within the meaning of this Act. 
 
 Cargo. 
 
 To Section 32, suhjoin : Provided that, in case any disagree- 
 ment shall arise respecting the real value of such goods so recovered 
 as aforesaid, the same shall be sold by public auction, and the pro- 
 ceeds of such sale shall be apportioned amongst the parties to the 
 adventure in proportion to the amounts of their respective con- 
 tributions. 
 
 Intermediate Expenses. 
 
 Section 64. — Delete the words ' and of the wages and pro- 
 visions for the crew during the time in which the repairs are being 
 made.' 
 
 Estimation of General Average Losses. 
 
 Section 75. — A General Average sacrifice of property at risk 
 in the adventure (such sacrifice not being an expenditure within 
 the meaning of this Act) shall not, if followed by a total loss of the 
 ship and cargo, be contributed for in any manner. 
 
 Section 80. — The owner of goods sold at an intermediate port 
 to pay expenses incni-rcd in respect of a General Average sacrifice 
 shall in no case in wiiich he shall be entitled to a General Average 
 contribution suMrr any detriment by reason of such sale having 
 been made at an intermediate ])ort instead of at the intended 
 niarkrt of such goods il" tlicy had conliiuicd to be on board; but 
 Hucli owner as aforesaid may, on the other hand, retain any benefit 
 rt;sidting to liim from such sale as aloresaid at :in intermcMliate port 
 l)y reason of sucli goods as aforesaid lia\inL;- I'elehed ;i higher price 
 at, Mieli interniediate port lliaii thty wouUl have lelciied at their 
 inleiided iiiai ke|.
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 119 
 
 Contributory Interests and Values. 
 
 Section 8G. — A sacrifice made on behalf of a sliip in ballast, 
 whether chartered or not, shall not be deemed to be a General 
 Average act within the meaning of this Act. 
 
 Section 91. — If the ship alone shall be liable to confiscation 
 for a breach of international law, no loss sustained by the shipowner 
 in order to avoid such confiscation shall be deemed to be a General 
 Average loss within the meaning of this Act. 
 
 Section 95. — Subject to the provisions of this Act, the con- 
 tributory value of property in respect to a General Average con- 
 tribution shall be the value of such property to its owner at the 
 termination of the adventure. 
 
 Section 107. — In estimating the contributory value of freight 
 with respect to General Average contribution, two-fifths of the 
 value of the wages, ix)rt charges, and other expenses shall be 
 deducted from the value of the gross freight. 
 
 Section 114. — In respect to General Average contributions, no 
 deduction shall be made under clause 107 for any freight paid in 
 advance. 
 
 Procedure- 
 Section 120. — The adjustment of a General Average contribu- 
 tion shall be made at the ship's port of destination, within fourteen 
 days after her arrival at such port. 
 
 Some of the delegates having intimated the necessity 
 of their returiiii]i>- home, it was not thoiio-ht advisable to 
 proceed any further with the task of remodelling tlie draft 
 13111, but in order to try if the so-much-desired result of 
 one uniform system of General Average could not in an}^ 
 way be attained the following resolutions were unani- 
 mously agreed upon, viz. : — 
 
 1. That in consequence of the misconceptions which have taken 
 pla^e since the Glasgow meeting of the National Association for 
 the Promotion of Sccial Science with regard to the General Average
 
 120 
 
 MARITIME LEGISLATION. 
 
 question, unotlier mode of proceediug on this very important ques- 
 tion be adopted. 
 
 2. That, for the purpose of attaining this object, a committee 
 be formed in order to decide upon and bring- into shape a Bill, or 
 series of resolutions, having for object the establishing one uniform 
 srstem of General Average throughout the mercantile world. 
 
 3. That, in the opinion of this meeting, this object will be best 
 attained if no steps be taken in this matter without the sanction 
 of such committee. 
 
 4. That this committee consist of the following members ' : — 
 
 E. E. Wendt, Esq., Chairman of 
 
 the Coinmittee 
 Richard Lowndes, Esq., Secretary 
 Laurence E. Baily, Esq., Liverpool 
 J, Russell Bradford, Esq., Boston 
 L. C. Driebeck, Esq., Rotterdam 
 Theodore C. Engels, Esq., Antwerp 
 S. Gram, Esq., CojienJiagen 
 G. W. Hastings, Esq. 
 
 Wni. J. Lamport, Esq., Liverpool 
 Edouard van Peborgh, Esq., Ant- 
 werp 
 E. N. Rahusen, Esq., Amsterdam 
 P. H. Rathbone, Esq., Liverpool 
 R. M. Smith, Esq., Edinburgh 
 J. J. Suenson, Esq., Copenhagen 
 Edward Thune, Esq., C openhagen 
 J. Wertheim, Esq., ^/Ms^e/'c/a/zi 
 
 This committee went vigorously to work. In order to 
 secure a broad basis of action and so obtain the counsel 
 and co-operation of those in all maritime countries wlio 
 Avere most conversant with the sul)ject of General Average, 
 as well as to clear their own opinions by full discussion, 
 it was determined by the committee to draw up a state- 
 ment of the leading arguments on either side of what may 
 be termed the disputed questions of General Average. This 
 was j)ublisli('(l and coniniunicatod to the different members 
 1()m-(mIici- with a /'n>jet de Code (submitted by Messrs. 
 J'jigels ,'111(1 \aii Tcboi-Ldi of Antwcr})), tlie compilation of 
 the Danish Laws on ('ciicral Axcfagc (cmanatinii; from 
 Messrs. (jrani, Siicnson and 'I'linnc of Copcnliagen), and 
 the translal ion of tlic new (icnnan Law on Averaire and 
 ►Salvage (issued by myself). The diO'crcnl members of the 
 
 ' 'i'lif niiriics (>{ tlif ]L,'(iillciii(ii ulifi ullfi'wards rel'ubeil to act on the 
 Commitloc liiivc ui coiusc, been ojiiitlcd.
 
 INIERNATIONAL LAW OF GENERAL AVERAGi:. 121 
 
 committee were also invited to slate tlieir o})iiiiou upon 
 the several (questions raised in the statement and the 
 reasons for and a|>ainst them. 
 
 May 1, I860, ha\iH!4- ])een fixed as the date for the 
 receipt of these statements, each member of the connnittee 
 received a copy of the same, with the request that, before 
 September 1, I8C0, a hnal statement of opinion shoukl be 
 prepared, showing in what respects (if any) his previous 
 opinion liad been modified by the arguments of otlier 
 members ; and, if he retained his original opinion, stating 
 any objection he might wish to urge against the arguments 
 of those opposed to him. 
 
 Of the sixteen members of the committee, fourteen 
 furnished their respective observations in ten pamphlets, 
 and six members further suppHed the committee, in five 
 pamphlets, with their final statements of opinion on the 
 questions at issue, and the follow^ing was the result : — 
 
 The report (this w^as the designation given to the 
 statement of the leading arguments submitted to the 
 committee), which w'as divided into six sections, viz. — 
 first, preliminary observations ; second, leading principles ; 
 third, definitions ; fourth, sacrifices — a, of cargo — b, of 
 ship's materials ; fifth, extraordinary expenses ; sixth, con- 
 tributions — raised, in reality, tw^enty-three questions, on 
 which an expression of opinion was considered serviceable ; 
 and as several members of the committee had not been 
 present when the Glasgow resolutions w^ere passed, it was 
 quite natural that, in order to ascertain the opinions of 
 all the members on all questions at issue in this con- 
 troversy, the discussion on the Glasgow points should be 
 reopened. 
 
 Now, the first nine questions raised by the report 
 referred most immediately to the leading principles and 
 definitions, in tlieir difiereiit beariiigSj as to whether the
 
 122 MARITIME LEGISLATION. 
 
 common safety from danger of total loss, or the common 
 benefit, that is, the coinpletiou of the adventure, should 
 be considered the leading j^nnciple of the International 
 General Average law. 
 
 It is well known that the common safety theory has 
 been that which is commonly called the English practice ; 
 whereas npon the common benefit theory the other 
 maritime nations of the world had mainly based their 
 practice. 
 
 Of the fourteen members of the committee who ex- 
 pressed their opinion, only one was in favour of the 
 common safety theory, while thirteen declared themselves 
 in favour of the common benefit theory ; so that the 
 great principle which had been carried by the adoption 
 of the Glasgow resolutions was confirmed by a very large 
 majority. 
 
 The tenth question referred to cargo sacrificed on 
 account of its vice-projire — a point not raised in Glasgow 
 — and was unanimously decided as not allowable in 
 General Average, for the article is by its own default itself 
 tlie cause of the danger. 
 
 In the consideration of the eleventh question, referring 
 to jettison of deck cargo — another point not raised in 
 (jlasgow — I imagine the enactment of the new German 
 law, which only admits jettisoned deck cargo as General 
 Average on coasting voyages, must have had considerable 
 iiilliiciicc u])(»ii the ojjiiiioiis of llic majority of the voting 
 iiiciiil)ci-s ; Ibi- alilioiiL'ii tlic l)iisinc'ss avocations of many 
 iiiii>l lia\(' iii;i(l<' tliciii ;i\\ai-c lliat, for certain trades, par- 
 ticular vessels arc hiiill which will load oiic-lil'tli, or even 
 one-fourth of thcii' wliolc cargo on deck, the \()tes were 
 c'X])ressed in a niaiiiicr which showed that considerable 
 (loiil)t cxislcd oil ihc suhjcct. I (iiid live votes w'ere given 
 in I'aNoiir of llic pi-opo,v;il ; |i\c \()t{'s aiiiicd at restricting
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 123 
 
 the pi'opo.siil U) coasting A'oyages ; and oi" the renuuning 
 two votes, one totally negatived the proposal, and the other 
 in fact did the same by proposing that any such jettison 
 should be divided between the shipowner and the owner 
 of the deck cargo. 
 
 The twelfth question — damage to cargo in effecting 
 jettison — corresponding to the third Glasgow resolution, 
 produced five opinions in favour of reversing that resolu- 
 tion, while two of the live votes adhering thereto were 
 accompanied by a declaration that such adhesion was 
 only given because the resolution had been passed at 
 Glasgow. 
 
 The thirteen votes given upon the thirteenth question 
 — damage to cargo by forced discharge — entirely con- 
 firmed the fourth Glasgow resolution, to which it was 
 similar. 
 
 The fourteenth question — damage to cargo in extin- 
 guishing a fire — treated of in the second Glasgow resolu- 
 tion, was confirmed by eight votes. 
 
 Upon the fifteenth question — loss of cargo by a sale to 
 raise funds — the report proposed that such loss should 
 be treated like a bottomry, that is, apportioned over the 
 expenses for which it was sold, and that any profit should 
 belontj^ to the owner of the o-oods. Five of the ei<>lit votes 
 given adopted the proposal purely ; one added that the 
 shipowner should be indenniified for loss of freight ; and 
 five were of opinion that, whereas the loss should be made 
 good as proposed, any profit arising should not belong to 
 the owner of the goods, but should be for the benefit of 
 the connnon adventure. 
 
 The sixteenth question — the cutting away of wreck — 
 was considered by the fifth Glasgow^ resolution not ad- 
 missible in General Average. This was confirmed by ten 
 voles against one vote. _
 
 124 MARITIME LEGISLATION. 
 
 The seventeenth question — damage by scuttling a ship 
 to put out a fire — was inckicled in the se(!ond Glasgow 
 resolution, and here declared allowable in General Average 
 by four votes against one. 
 
 The eighteenth question — damage by intentional 
 stranding— proved to be most intricate. The first Glasgow 
 resolution stated that such damage was, as a general rule, 
 not admissible in General Average, but without prejudice 
 to a claim in exceptional cases upon clear proof of special 
 facts. The vao'ueness of the wordinf; of this resolution 
 must prove that the argumentations on both sides were 
 so nice that it was impossible to come to an understand- 
 ing upon any other basis. It is not unlikely that, this 
 being the case, the first Glasgow resolution would have 
 been confirmed by the majority of the committee, if the 
 new German law had not made an enactment which, ac- 
 cording to my humble opinion, ought to satisfy everybody, 
 in conse(pience of its meeting, in the plainest terms, the 
 principles involved. This enacts, in section 708, that such 
 damages as are caused by the ship being purposely run 
 ashore to prevent sinking or capture, and after being 
 successfully got off is found capable of repair, is General 
 Average. I find that four votes were decidedly in favour 
 of the German ciiactmcnt and one vote partially so; 
 whereas one \()le was gi\en in fa\'our of the Glasgow 
 resolutions, and to tlie other eight votes various restrictions 
 wci"<* a1 la<-li<*(l. 
 
 rpoii ilic iiiiiclcciilh (question — damage 1)y carrying a 
 press oi" sail- tlic scwuth Glasgow resolution was con- 
 fiiiiicd by six votes. 
 
 The twentieth (pu'stion^the port of refuge expenses 
 — wliich liad been declared by the sixth Glasgow resolu- 
 tion as admissible in Clcneral A\-erage, was confirmed Ijy 
 thill ecu Notes against one \ole.
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 125 
 
 The twenty-first question treated of two points — wages 
 and provisions of the crew at a port of refuge, and loss of 
 market. The first part of this question was, in conformity 
 witli the eighth Glasgow resolution, considered to be 
 admissible in General Average by eleven votes, against 
 three who held it inadmissible either on principle or for 
 practical reasons. The seven votes which were given on 
 the second part of the question w^ere unanimous in not 
 allowing the loss of market in General Average. 
 
 Upon the twenty-second question — contributing values 
 — ten votes were given in conformity with the ninth 
 Glasgow resolution, wdiich considered the ultimate value 
 liable, against one vote which was in favour of the value 
 at the port of refuge. 
 
 The twenty-third and last question — deductions from 
 freight — regulated by the eleventh Glasgow resolution, 
 gave rise to a very interesting discussion in one of the 
 preliminary meetings to the London Congress, where a pro- 
 posal was made to modify the present practice by fixing 
 upon a certain proportion of the freight to contribute to 
 the General Average. The German law having adopted 
 a similar principle, which, for practical reasons, would 
 undoubtedly be very acceptable, it was to be regretted 
 that only six members expressed their opinion on the 
 subject at all, and these six were equally divided between 
 adhering to the old practice and tlie adoption of a fixed 
 proportion ; so that, in reality, this remained an open 
 question. 
 
 These different pamphlets, with the other papers re- 
 ferred to above, were bound together in a volume entitled 
 ' Transactions of the International General Average Com- 
 mittee ' ; its circulation took place in January 1864. 
 
 Some months afterwards it was decided that the third 
 International General Average Concfress should meet on
 
 126 MAPJiniE LEGISLATION. 
 
 September 26, 18G4, in the city of York, and that the 
 followincT draft of a Bill was to be taken as a basis for 
 its deliberations : — 
 
 Whereas it is expedient tliat tliere should be uniformity in the law 
 
 of General Average amongst all maritime communities, and 
 
 that, in order to promote such uniformity, certain amendments 
 
 should be made in the rules to be observed in the adjustment 
 
 of claims for General Average made in any port or place within 
 
 the United Kingdom of Great Britain and Ireland ; 
 
 Be it therefore enacted, &c. &c. That on and after the day of 
 
 the following rules shall be observed in the adjustment of 
 
 all claims for General Average made in the United Kingdom of 
 
 Great Britain and Ireland : — 
 
 Section I. — A jettison of timber or deals carried on the deck 
 of a ship in pursuance of a general custoin of the trade in which 
 the ship is then engaged, shall be made good as General Average, 
 in like manner as if such cargo had been jettisoned from below 
 deck. 
 
 No jettison of deck cargo, other than timber or deals so carried 
 as aforesaid, shall be made good as General Average ; but if the 
 shipment on deck have been made without the consent or sanction 
 of the shipper or owner of such cargo, the loss resulting from such 
 jettison shall be made good by the owner or owners of the ship ; 
 whereas, if such shipment have been made with the consent or 
 sanction of such shipper or owner, the loss of cargo shall fall upon 
 such shipper or owner. 
 
 Cargo, which is in a deck-house, poop, or topgallant forecastle, 
 shall, for the purposes of this Act, be treated as cargo laden on 
 d<'ck. 
 
 Section II. — Damage done to goods or merchandise by water 
 which unavoidably goes down a ship's hatches when opened for the 
 purpose of making a jettison, shall be made* good as General Average, 
 in case the loss by jettison is so nuide good. 
 
 Damage done by breakage and clinling or otherwise from de- 
 rangement of stowage consecpicnl. ii|)oii a jettison, shall not be 
 made good as (icneral Av('rag<\ but sliall fall upon the owners of 
 •the goods so daniMgcd or <hi'ir iindci'wrilrrs.
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 127 
 
 Section III. — Damaf^c intentionally done to a ship or cargo 
 for the purpose of extinguisliiiig a fire on board ship, and damage 
 done by water poured in or admitted through scuttlc-holes or 
 otherwise for the said purpose, shall be made good as General 
 Average. 
 
 Section IV. — Damage done by cutting away the wreck, or 
 remains of spars or other things which have previously been carried 
 away, or permanently displaced by sea peril, shall not be made 
 good as General Average. 
 
 Section V. — If a ship is intentionally run ashore in order to 
 avoid capture or foundering, and is afterwards got off and repaired, 
 all damage caused either to the ship or cargo on board by such 
 running ashore shall be made good as General Average. 
 
 If a ship has been intentionally run ashore as aforesaid, but is 
 not afterwards got off the shore, or being got off is found insepar- 
 ably damaged, or so damaged as not to be worth repairing, no 
 compensation in the way of General Average shall be made for tlie 
 damage caused by such running ashore. 
 
 Section VI. — Damage occasioned to a ship or cargo b^^ carry- 
 ing a press of sail shall not be made good as General Average. 
 
 Section VII. — ^When a ship shall have entered a port of refuge 
 under such circumstances that the expenses of entering the port 
 are admissible as General Average, and when she shall have sailed 
 thence with her original cargo, or a substantial part of it, the cor- 
 responding expenses of leaving such port shall likewise be so 
 admitted as General Average ; and whenever the cost of discharging 
 cargo at such port is admissible as General Average, the cost of 
 reloading and stowing such cargo on board the said ship, together 
 with all storage charges on such cargo, shall likewise be so admitted. 
 Section VIII.— When a ship shall have entered a port of 
 refuge under the circumstances defined in Section VII., the wages 
 and cost of maintenance of the master and mariners, from the time 
 of entering such port until the ship shall have been made ready to 
 proceed upon her voyage, shall, subject to the provisoes undernamed, 
 be made good as General Average. 
 
 Provided that, if reasonable dispatch be not used in repairing 
 or otherwise getting the vessel to sea, no allowance for wages or
 
 123 MAEITIME LEGISLATIOX. 
 
 maintenance sliall be made in respect of the time so improperly 
 expended. 
 
 Provided also, that no allowance shall be made for wages or 
 maintenance as above in case the ship shall be condemned at such 
 port as irreparable, or not worth repairing, or in case, for any other 
 lawful cause, the cargo, or a substantial part of it, shall not be re- 
 laden on board such ship for the purpose of further transport. 
 
 Sectiox IX. — Damage done to cargo in the act of dischai'ging 
 it at a port of refuge shall not be admissible as General Average, 
 in case such cargo shall have been discharged at the place and in 
 the manner customary at that port with ships not in distress. 
 
 Section X. — The contribution to a General Average shall be 
 made upon the actual values of the property at the termination of 
 the adventure, to which shall be added the amount made good as 
 General Average for property sacrificed ; deduction being made 
 from the shipowner's freight at risk of that portion of the crew's 
 wages, and the port charges on the ship, the liability for which is 
 contingent upon the earnings of such freights. 
 
 In case the amount to be made good shall exceed the aggregate 
 of contributory values, computed as above stated, such aggregate 
 shall, in the first instance, be taken towards satisfying the General 
 Average, and the excess of the General Average shall then be 
 apportioned as if the ship and entire cargo on board or at risk at 
 the time of doing the act or measure which has given rise to the 
 General Average had reached the port of destination free from 
 damage. 
 
 The proneedintfs of this Congress were then opened on 
 Se])teniher 20, 1804, by the Eight Honourable Sir James P. 
 Wilde, Kniglit (now Lord Penzance), with the following 
 words : — 
 
 We will, if yon idcase, at once cuter upon ilu' business of the 
 day; bnf before doing so I wish, on the ])art of the Social Science 
 Association, of which I have the honour to be a member, to tender 
 our best thanks to those gentlemen who have been good enough to 
 come to attend this Congress, doubtless in some cases at great 
 trouble ()!• didieully, fi'oiii (liHiTeiil p.'irts of the world, to t;ike part
 
 INTEUXATIONAL LAW OF GENERAL AVERAGE. W.) 
 
 in this discussion. The Association feels that it is only by this sort 
 of common effort on the part of those belonging to the mercantile 
 community — gentlemen interested in the commercial affairs of the 
 different countries to which they belong, such as those I now see 
 before me — that any great practical measure can be successfully 
 discussed and carried out. It is, therefore, right that our thauks 
 should be tendered to all those who, by their presence on this 
 occasion, show their willingness to aid us in the attainment of our 
 present object. I will now call upon Mr. Wendt, the Chairman of 
 the International General Average Committee, for his introductory 
 observations. 
 
 j\[r. AVendt. It having been arranged that I, in my capacity as 
 Chairman of the International General Average Committee, am to 
 open the proceedings of the Third International Genei-al Average 
 Congress with an introductory statement, I beg your attention to 
 the following observations which I consider it my duty to address 
 to you. 
 
 The first public step in favour of uniformity in legislation on 
 General Average was made by the circular issued May 3, 18G0, by 
 the President and General Secretary of the National Association 
 for the Promotion of Social Science, the Chairman of Lloyd's, the 
 Chairman of the London General Shipowners' Society, the Chair- 
 man of Lloyd's Salvage Association, and the Chairmen of the 
 Chambers of Commerce, the Underwriting Associations and others 
 of Liverpool, Glasgow, Hull, and Bristol. 
 
 This circular contained, in the plainest possible language, the 
 admission of these bodies that the system of General Average is 
 one which, to prevent confusion and injustice, pre-eminently re- 
 quires that the same principles should be acted upon by the chief 
 maritime nations; that the uncertainty of the law on General 
 Average is peculiarly felt ; that much loss is occasioned to the 
 mercantile community, and much valuable time is worse than 
 wasted, through business being impeded by misunderstandings and 
 irritated feelings ; that the evils of such a state of things are 
 notorious and unquestioned ; that although the difficulties in the 
 way of uniformity in General Average legislation are no doubt con- 
 siderable, they are far from being insuperable ; and that, in order 
 
 K
 
 130 MAIUTIME LEGISLATION. 
 
 to remove this most unnecessary element of irritation between 
 assured and underwriter, the most important commercial bodies 
 of the chief maritime nations shoukl be invited to send delegates 
 to that nieetino-, which is now better known as the First International 
 General Average Congress at Glasgow. 
 
 After I had minutely referred to all tlie proceedings in 
 Glaso-ow and London, and tlie preliminary steps taken by 
 the International General Average Committee preparatory 
 to this York Congress, all of which are fully set out in the 
 foreo-oing pages, I concluded my address as follows : — 
 
 The committee is quite aware that this draft Bill does not con- 
 tain evervthing which it might be desirable to embody in an Act 
 on General Average; but it appeared to those members of the 
 committee who had the principal charge of its action, that the 
 diffei'ences of opinion still existing on the most important principles 
 of General Average would inevitably necessitate at least a post- 
 ponement of this public discussion, if they were not satisfied with 
 those enactments which they have now been enabled to present ; 
 and I do not hesitate to say, that the amendments proposed by 
 some very eminent and learned persons in the law of General 
 Average, prove to me very decidedly that a very large and respect- 
 able majority is of the committee's opinion, that we do not absolutely 
 require a complete codification on General Average. But for our 
 purpose — I mean for the establishment of international uniformity 
 — it will suffice that the important principles proposed in our draft 
 Bill should be agreed upon and carried into effect. 
 
 I ought to observe, that Dr. Travers Twiss having revised and 
 approved ol'tlie dral't I Jill in>w before you, it is sufficiently vouched 
 as containing nothing (ibjrcl iniKible in respect of leg.il phrase- 
 ology. 
 
 T hiive now to say a few woi-ds as to some of the observations 
 wliicli arc roiitaiin'il in tlic ]i;iiii|ililcl of the Icai'ned delegate 
 wlioiii ili(! gMVci'iiiiicnts of I lainliiii'g and Lubcck (lid us the 
 lioiioiir to send to this congress, and which 1 am sorry to say 
 would, if i\u'. case as slated were in reality borne out by the facts, 
 show consiilrrablc sliortsighti'dncs-; on I lie part of I lie niendxn'S of
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. ];3L 
 
 the International General Average Committee. The learned dele- 
 gate states that four classes of persons are principally interested in 
 our movements, viz. : — 1. The shipowners and merchants. 2. The 
 underwriters. 3. The average-staters. 4. The lawyers. 
 
 Now, I think that, if he considers the various avocations 
 of the sixteen members composing our committee, he will find 
 that all these classes are fully represented in it ; and there will 
 then only remain liis objection, that from the secluded life the 
 committee has led, the different foreign Governments have not been 
 sufficiently interested in the movement. 
 
 That lier Majesty's Ciovernment views this movement with great 
 interest, and is willing to assist, as far as lies in its power, in the 
 attainment of uniformity in international General Average legis- 
 lation, her Majesty's consular officers were authorised to declare to 
 the Governments of their respective districts, at the request of the 
 Liverpool Chamber of Commerce, which body was among the first 
 originators of this movement. 
 
 With reference to the other Governments which are not repre- 
 sented among us, I can only say that a perusal of the corre- 
 spondence and papers of the committee will satisfy everybody that 
 we did what we jDossibly could to obtain the largest possible co- 
 operation, both here and abroad. But if we consider that the 
 principal obstacle to the attainment of uniformity in international 
 General Average legislation does not arise abroad — for only slight 
 differences on the minor points under discussion exist among the 
 other maritime nations — but is attributable to the pertinacity with 
 which, in this country, the principles hitherto acknowledged have 
 been adhered to ; then, I think, the most natural course of pro- 
 ceeding was to invite as much voluntary co-operation as possible 
 from abroad, for the discussion and determination of what our 
 international law ought really to be, without engaging to propose 
 such law for the adoption of foreign Governments before it had 
 been adopted and passed by the British Legislature. 
 
 The committee intend to follow with this law the same course 
 as had been pursued with reference to some other enactments — as, 
 for instance, the navigation clauses of the INferchant Shipping 
 Amendment Act of 18G2, which were first passed in this countrv.
 
 182 MARITIME LEGISLATIOX. 
 
 and adopted by tlie other maritime nations, who would certainly 
 feel less objection when they saw that what the British Government 
 submitted for their adoption was the result of the discussions of 
 an international congress of gentlemen so well qualified to assist 
 therein. 
 
 The committee has strengthened itself by inviting to its 
 deliberations the delegates who have expressed their willingness to 
 assist cordially in its labours, and it is to be hoped that, after this 
 congress has arrived at a determination as to what clauses the draft 
 Bill is to contain, the committee may be empowered to take imme- 
 diate steps to lay the results of the labours of the congress before 
 the Board of Trade, at the time most convenient to insure the 
 attendance of the delegates who here honour us with their 
 presence. 
 
 I sincerely hope that the third congress may really succeed in 
 leading to a practical result. 
 
 The Chairman. The statement that has just been read has 
 placed us all in possession of a great deal of information very use- 
 ful at this moment for the attainment of this most desirable end, 
 and we shall presently proceed to consider the specific clauses of 
 the Bill proposed to be brought before Parliament -with that view. 
 All present have, no doubt, acquainted themselves fully and entirely 
 with the objects of this congress, and not only so, but also with 
 the views of those who do not entirely agree with them ; and as to 
 those who have not done this, the printed book which I have before 
 me' will place them in a position to judge of the matter. Before 
 we proceed further, I think that we ought to ascertain to what 
 extent different bodies of persons interested in this subject are 
 represented here. 
 
 Captain llalsted, II. N., the secretary of Lloyd's, then handed the 
 following letter to the Chairman, which he read : — 
 
 TJoyd's (K.C.) : SoptoniLor 21, 1864. 
 Sir, — Within till- year ISOO, jlic subjcrt of an 'International 
 uniform sysli-m oi' udjusling (I'l-iicrai Average' was first brought 
 under the notice- (jfllie Conniiiltee for managing the aflairs of 
 
 ' Tlie above referred to : Tninnuclioiia of tin- Lilmuiliojial General 
 Avcratje Ccvnnillee..
 
 INTERNATIONAL LAW OF GKNEllAL AVl^llAGIi:. l.}3 
 
 Lloyd's, than whom probably no conuuerciul body are better 
 capable of appreciating the inconveniences resulting from the 
 diversity of practice among different countries. They cheerfully 
 co-operated with the promoters of the movement, and by the 
 courtesy of their agents in foreign ports, much valuable informa- 
 tion was afforded to the International Association. 
 
 The circumstances which prevented this Committee attending 
 the meeting held in 1862, in London, have already been stated 
 in a letter dated June 11, 1862, addressed to Dr. Travers Twiss, 
 the then president of the meeting, and need not be further 
 referred to. 
 
 As regards the forthcoming discussion in York, to which this 
 Committee have had the honour to be invited, it would have been 
 gratifying to them could they have felt themselves justified in 
 taking part therein. But it is with surprise and regret, that on a 
 perusal of the various preparatory papers and documents with 
 which they have been favoured, this Committee find that the 
 approaching meeting, instead of being constituted for the purpose 
 of its original object (viz. the consideration of the laws of various 
 countries, with a view to attempt their assimilation) has resolved 
 itself into a committee for the purpose of effecting an alteration 
 solely in the English law. 
 
 The draft Bill which is to be submitted seeks to establish 
 uniformity in the adjustment of General Average by the sacrifice 
 of some of the most valuable points in English custom, in favour 
 of the most objectionable as administered abroad, and which the 
 Committee consider would have a very prejudicial effect upon the 
 liability of owners of cargo, whose interest throughout the proposed 
 Bill would appear to be made subordinate to those of the shipowner. 
 The proposed Bill would also largely add to the abuses and mis- 
 understandings which arise under the existing system. 
 
 While this Committee are of opinion that, in the interests of 
 the commercial world, whether merchants or shipowners, a unifonu 
 law is much to be desired, they do not see the means to attain 
 this end in the proposals of the sub-committee, and therefore feel 
 themselves compelled to refrain from the present agitation of the 
 subject.
 
 134 mahitime legislation. 
 
 The secretary of Lloyd's, Captain Halsted, is requested to 
 attend at tlie opening of the General Average congress, for the 
 purpose of presenting this letter to the Chairman. — I am, Sir, 
 
 Your obedient Servant, 
 Thomas Baring, Chairman of Lloyd's. 
 
 The Honoiu-able Sir James Plaisted Wilde, President 
 
 of the Average Section of the Social Science 
 
 Association, York. 
 
 Mr. J. A. W. Harfer, the Secretary of the Salvage Association, 
 then handed the following letter to the Chairman, which he likewise 
 read : — 
 
 Association for the Protection of Commercial Interests, as 
 RESPECTS Wrecked or Damaged Property. 
 
 Lloyd's : Sept. 29, 1864. 
 To the Honoiirahle SiR James Plaisted Wilde, Chairman of the 
 General Average Section of tlte Social Science Association, at 
 York. 
 
 Sir, — We, the Chairman and Vice-Chairman of the Association, 
 beo-, at the request of the Committee, to communicate to you, for 
 information of the meeting of the above-mentioned section of the 
 Social Science Association, the opinion of the Committee on the 
 draft of the Bill which is intended to be laid before that meeting. 
 
 When the subject was first raised, the Committee regarded 
 the meeting of the Social Science Association as a Congress of 
 experts from various countries, assembled to discuss the principles 
 of General Average, and especially the chief points of difference 
 in laws and ] tract ice between ^■arious countries of Europe and 
 America. 
 
 'J'he Conitiiittt'e were int'inncd thai, as a result of the discussion 
 at Glasgow, it was looked upon as nut altogether impossible to 
 obtain the adhesion of the leading maritime nat ions of the world 
 to an International Codi' of (ieneral Average. 
 
 Altliough the Committee! did not consider that the ]traetieal 
 consefjuences of tlu^ eonlliet of laws, on the siiliject of (uMU'ral 
 Average, are so serious as to rci|iiii-e t his greiil niaehinerv to be put
 
 INTERNATIONAL LAW OF GENlliAI, AVERAGE. ]«o 
 
 in force to avoid them, yet they were sincerely desirous to aid, as 
 far as they could, any attempt that might be made with that 
 object. 
 
 Thev oliserve, however, tluit, instead of an international code, 
 it is intended to take the discussion on a proposed English Act of 
 Parliament. The Committee presume, then, that all idea of an 
 international code is abandoned. They are confirmed in this im- 
 pression by the circumstance that some of the most important 
 maritime nations have taken no part whatever in any of the 
 proceedings up to this time. 
 
 Without saying what opinion they would entertain on any of 
 the serious changes in English law contemplated in this Act, if 
 they had been proposed as a part of a General International Law, 
 the Committee regret that they find themselves compelled to 
 decline taking any part in the consideration of them as simply 
 reforms of the law of England. 
 
 At the same time that they do not consider they are called 
 upon to say what course- they would finally take under the above- 
 mentioned conditions, they are anxious it shonld be understood 
 that some of the provisions of the present proposed Bill seem to 
 them so objectionable, that they can hardly imagine the circum- 
 stances under which they could be prepared to assent to them. 
 
 In thus abstaining from all active participation in proceedings 
 which appear to be intended partly to effect large alterations of the 
 law of this country, and, in part, apparently to commence a codifi- 
 cation of the rest, but not with a view to establish an international 
 code, the Committee are very desirous that it shonld not be supposed 
 they would be backward to render any assistance in their power 
 to all well-considered efforts towards facilitating the commercial 
 intercourse of nations. — We have the honour to be. Sir, 
 Your obedient Servants, 
 
 Wm. Wilson Saundeks, Chairman. 
 John A, Rucker, Bepaty Chairman. 
 J. A. W. Harper, Sccrcianj. 
 
 ^\\{. Lowndes. The following are the names of the represen- 
 tatives ; —
 
 13G MARITIME LEGISI.ATION. 
 
 Edward Crusemaxn, Esq., Chamber of Commerce, Bremen. 
 
 Charles H. H. Fraxck, LL.D., Chamber of Commerce, Hamhurg ; 
 Chamber of Commerce, Lubeck. 
 
 Theodore T. ExCxELS, Esq., Belgian Government ; Chamber of Commerce, 
 Antwerp ; Board of Underwriters, Antwerp. 
 
 Jules Delehaye, Esq., Comite des Assureurs Maritimes de Paris. 
 
 G. Kamexsky, Esq., Russiayi Government. 
 
 Captain E T. Gourlay, Sunderland Corporation. 
 
 Dr. E. N. Rahusen, Netherlands Trading Company. 
 
 Dr. J. Wertiieim, Board of Underwriters, Amsterdam,. 
 
 D. W. Mackeciinie, Esq., Average Adjuster, Glasgow. 
 
 Hexry J. Atkinson, Esq., President, Hull Chamber of Commerce. 
 
 William Boxar, Esq., General SliijJowners' Asscciation, Loyidon. 
 
 Ed, van Peborgh, Esq., Belgian Government ; Chamber of Commerce, 
 Antwerp ; Board of Underwriters, Antwerp. 
 
 J. A. W. Harper, Esq., Salvage Association, Lloyd's. 
 
 Captain Halsted, R.N., Lloyd's. 
 
 L. R. Baily, Esq., Average Adjuster ; Chamber of Commerce, Liver- 
 pool. 
 
 P. H. Rathbone, Esq., Chamber of Commerce, Liverpool ; Cliairman 
 <f the Underwriters' Association, Liverpool. 
 
 R. LoAVNDES, Esq., Average Adjuster ; Chamber of Commerce, Liver- 
 pool. 
 
 J. W. Hale, Esq., Acerage Adjuster, London. 
 
 R. M. Hudson, Esq., Shipoivners' Society, Sunderland. 
 
 John J. Kayll, Esq., Sunderland Corporation. 
 
 3. Russell Bradford, Esq., Average Adjuster ; Board of Trade, Boston, 
 U.S. ; Board <f Underivriters, Boston, U.S. 
 
 Hon. Judge Marvin, Chamber of Commerce, Neto York j Board of 
 Underivriters, New York. 
 
 AV. T. Jacob, Sliijiowners' Association, lAverpool. 
 
 William Richards, Esq., Average Adjuster, London. 
 
 Manlev Hopkins, Es(|., Average Adjuster, London. 
 
 Joseph Created, Escj., London. 
 
 And thf'ii s;ii(l : If is to a certain extent satisfactory to find tliat, 
 ■vvitli n-f/ard U) Lloyds, there lias been some misconception, upon 
 flie removal of wliicli \\v. iii;iy r;iii'Iy iiiit icipat(>, from the tone of 
 1 Ih-ir letter j_''eiii -nil ly, fhal , at all e\ciils, no opposil ion will Ix^ made 
 to onr intended iJill, niid we may perhaps still hope lor tlieir con- 
 tinued assistance, i say they lijivo aefc^l niidei- a misconception, 
 for what is now proposed is not simply, as they imasrine, to frame 
 !i l)ill to he passed throu;_di the KiiLdi>Ii Le^^islat iii-e. hiit to lay the 
 hasisol'aii I iil > -nial lonal Code, 'j'his has been intciidrd and under-
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. L'57 
 
 stood all throuo-li. it is a movement not for England only, but for 
 all parts of Europe and America. 
 
 The Chairman. We had better now pass to voting upon the 
 clauses or st-ctions of the draft Bill, or to any discussion that may 
 arise upon them. 
 
 Mh. Hastings (General Secretary). With regard to the letters 
 read, I think that, coming from bodies of such importance, I can 
 hardly, as representative of the Council here, let them pass without 
 saying that some authoritative reply should be given to those 
 letters. If the statements are correct, which I hear they are not, 
 then the committee would conceive that their object has not been 
 carried out, because the resolution under which we appointed the 
 committee — the resolution which induced the council to vote, more 
 than once, money in aid of the expenses of these proceedings — was 
 a resolution in favour of establishing an international code of 
 General Average for the whole world. If the council had conceived 
 that it was only for English puq^oses, they would not have thought 
 it necessary to have had this meeting, but the question would have 
 been treated and dealt with in our usual course of business. There- 
 fore I trust that this section will be able to show to the council 
 that their object is not merely to pass a Bill through the House of 
 Commons and House of Lords for the altering of the English law, 
 but for the establishing of a general international code of General 
 Average. I have stated this now in order to avoid any future 
 objection that might be taken. 
 
 Mr. Rathbone. We are, I believe, acting in strict accordance 
 with the resolution passed at the Glasgow meeting of which I was 
 secretary. On May 22 that resolution was sent to the committee. 
 That resolution was submitted to Lloyd's immediately after the 
 meeting on October 10, 1860, and I submit that we have not in 
 any way altered the programme from what was then proposed. 
 Tlie directions given to the committee by the Glasgow Congi-ess 
 were as follows :— Mr. Rathbone read the resolution of the con- 
 gress which directed the ' drawing up of a Bill, with a view to its 
 being enacted into a law by the legislative authorities of the several 
 nations of the world.' 
 
 The Chairman. I ihiuk that the committee^ will consider that
 
 138 MARITIME LEGISLATION. 
 
 what lias been done lias been merely to carry out what was done in 
 Glasgow, and that the Bill has been drawn accordingly, and that it 
 is contemplated in this resolution that it be recommended to the 
 authorities of all commercial nations to adopt one uniform code. 
 It seems to me, therefore, that the Committee of Lloyd's have unfor- 
 tunately misunderstood the position we take ; and under these 
 circumstances it would be better to record the fact that the present 
 meeting does not propose to restrict its action to British legislation, 
 but to extend it to all foreign countries. 
 
 Mr. Rathbone. I am here for the Underwriters' Association of 
 Liverpool, but I cannot commit that Association to anything that 
 is done here, but I am merely to hear and watch and, if necessary, 
 explain. 
 
 Mr. Ma>'LEY Hopkins then read the following statement : — 
 
 The year 1860 saw the commencement in England of an 
 endeavour which had, in a practical view, considerable importance. 
 It was an attempt towards the unification of the laws, customs, 
 and practice of all nations as they concern the subject of General 
 Average, the final design being to procure an universal code for 
 the regulation of all cases of General Average contribution. 
 
 The scheme was, perhaps, Utopian, and its promoters may 
 eventually find themselves obliged to succumb to special difficulties, 
 which prove insurmountable. Nevertheless, there can be no doubt 
 of the general benefit which attends the deliberation of a body of 
 men met to consult upon the subject which most interests them, 
 and upon which they are best informed. The danger which 
 besets such a convention is a failure of practical result, and of the 
 collision of many active minds ending in dialetic niceties, and a 
 war of finely drawn distinctions, having no great difference at 
 root. 
 
 The so-called International Congress, which assembled for the 
 fii>t time at Glasgow in 1800, consisted of 29 members. It took 
 place under the presidency of the venerable Lord Brougham, Lord 
 Neaves being also prrsent. Th(■s(^ 21' ])ei's()ns are, I observi.' in the 
 proceedings, termed delegates by those foreign writers who have 
 commented on the subject; but that name must be applied to 
 them in a limited sense; and it is certain that the English members
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 139 
 
 of the conference possessed no powers to bind or even to act for 
 others. Of the entire number, 19 were from London and the 
 principal ports of Great Britain, 2 from Antwerp, 2 from Amster- 
 dam, 2 from Copenhagen, 1 from Hamburg, 1 from Bremen, and 
 2 from tlie United States of America. 
 
 I should here make the personal explanation, that I was not 
 present at this meeting, nor at the subsequent meeting held in 
 18G2. Under an anxiety to economise the time of the section, I 
 condense my observations into the shortest compass, and, there- 
 fore, abruptly pass on to say that there is a consent among all 
 maritime nations as to the intention of General Average, a term 
 implying a sacrifice made by one individual in a marine adventure 
 for the benefit of all concerned, entailing a contribution by all for 
 the restitution of that individual's sacrifice. The unanimity 
 extends only to the barest definition, and, even expressing the 
 meaning of the term as generally as I have done, it is possible 
 that each word may be objected to in detail. A divergence com- 
 mences immediately, both as to principles and the practical 
 adjustment of General Average. Each nation views this branch 
 of distributive justice in its own manner; and even among the 
 citizens of one country, individuals look at it variously, through 
 their own particular spectacles. If the language of General 
 Average is radically one, each trading community may be said to 
 have its own dialect. This produces acknowledged inconveniences. 
 Foreign commerce consists of an interchange of commodities 
 between different nations, and these nations have different laws 
 and customs. When claims arise between those mutually carrying 
 on trade, they must be decided by the lex loci of the one terminus 
 of the adventure or of the other. The result will be satisfactory 
 on one side, but may interfere with the rights and laws on the 
 other side. Commerce being essentially international, it required 
 au international legislation to harmonise discrepancies, and to do 
 away with these inconveniences. The congi-ess of 1860 was 
 meant to be the first step towards a consummation so devoutly to 
 be wished for. 
 
 But is this possible ? Has any advance been made in that 
 direction ? If not, what are the efficient causes of disappoint-
 
 140 MARITIME LEGISLATIOX, 
 
 meut or delay? x\nd if some are discovered, and appear to be 
 insurmountable, what is the lower level of activity which might 
 advantageously be pursued by those who anxiously desire greater 
 unity in the regulation of General Average ? 
 
 Taking the experience of the last four years as our guide in 
 answerino- these questions, I think we must decide that an universal 
 code of General Average is, at present, not to be looked for — first, 
 because it is apparent that those who agree in desiring an inter- 
 national legislation are not agreed among themselves on first 
 principles ; and, secondly, because in homologating the existing 
 systems, every step requires a change, or concession, from one 
 community or the other ; and in those countries where there is 
 already a code or other legislation on the subject, even a mutation 
 towards a proposed novelty will meet with opposition, because it 
 will disarrange the existing law. I do not pretend to decide 
 absolutely that it is so, and am far from washing it to be the case ; 
 but I have stated my personal belief. The proceedings of to-day 
 may show me to be wrong, but I never had faith in this cosmo- 
 politan law-making, and so expressed myself shortly in print three 
 years ago, and showed that a more useful field lay before the 
 students and practitioners of this branch of science, in harmonising 
 discordant views and methods, in our own country, by meetings at 
 stated intervals for the consideration of difficult and doubtful 
 points, and, by means of a majority of opinion, obtaining a 
 reasonable and uniform practice. 
 
 1 have carefully studied the various documents put forth by 
 ?]nglish and foreign members of the congress, and do not see, 
 Ijeyond a general desire for unity, any great promise of concession, 
 even if the delegates were empowered to offer it. Since that 
 meeting in 18G0, Sweden has actually enacted a maritime code; 
 and it would be against the known characteristics of the French 
 nation to suppose that tlicy would alter, on our account, their 
 highly organised '('ode de Gonimerce,' which they so greatly 
 admire and pri/.e. Siippusing, tJieii, llml tlie iiuiveiiu'iit fails at 
 preBcnt in its inteni;itli)ii;il (li.ii-.irler, the addptioii of another 
 effort is suggested for considerat imi at this congress, on that lower 
 level I li;ive already mentiojied, and wliic-h the circular invites us
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. Ul 
 
 to discuss, viz. home legislation on General Average, The project 
 of a Bill, to be submitted to the Houses of Parliament, has Ijeen 
 forwarded with a circular, by the International General Average 
 Committee, the preamble of which recites, that whereas it is ex- 
 pedient that there should be uniformity in the law of General 
 Average amongst all maritime communities, and that, in order to 
 promote such uniformity, certain amendments should be made in 
 the rules to be observed, in the adjustment of claims for General 
 Average made in any port or place within the United Kingdom of 
 Great Britain and Ireland, &c. The object of the proposed Act 
 must, consequently, be so to legislate in our country, and with 
 such coucessions to the spirit of foreign laws and customs, as to 
 bring our own system into harmony with the foreign system, what- 
 ever that may be. 
 
 But, again, even if the discussions of the section are narrowed 
 to these limits, I see the same stumbling-block in the way of 
 progress towards home legislation, as unfavourably effected in the 
 international design, viz. the want of agreement amongst English 
 members of the Association themselves, not only in practical 
 details, but as to the very definition and the first principles of 
 General Average. 
 
 Until this stumbling-block is taken away, by these differences 
 disappearing or being reconciled, there can be no unity of action, 
 even in England, or any satisfactory legislation. 
 
 Let us, then, see, in presence of the documents printed by the 
 General Average Committee, embodying the views of English and 
 foreign members of the Association, what these essential differ- 
 ences are. 
 
 First, it has been discussed, whether the term General Average 
 relates to the act of sacrifice or to the subsequent contribution of 
 all benefited parties to make good that sacrifice. I think we may 
 easily dispose of this question by saying that, in the inexact 
 language of commercial men, the term is sometimes used in the 
 one sense or the other, or concretely for both. I do not think the 
 question about name need distress us. But, secondly, the great 
 principle is in contention, whether the aim and end of General 
 Average be the restoration to physical safety of the imperilled
 
 142 MARITBIE LEGISLATION. 
 
 interests— proceeding no further than their mere restoration to a 
 
 state of safety — or, whether its vocation is the ' common benefit ' 
 
 of the associated interests, not merely in rescuing them from im- 
 
 pendino- destruction, but conducing to their arrival at that intended 
 
 terminus of the voyage where only they will have, in a true 
 
 sense, a value. In other words, whether General Average means 
 
 that — and all that — which, out of danger, tends to bringing the 
 
 joint adventure to its proper termination ; or, in the words of 
 
 another writer, tends to the ' completion of the contract of 
 
 afireightment when practicable, and to its termination when its 
 
 completion is impracticable' (Baily). This is the cardinal 
 
 question. There are many subsidiary points discussed in the 
 
 published papers, but the scope of my present remarks goes no 
 
 further than the great point of divergence of two schools of 
 
 thought — one of which, the ' physical safety ' school, may be 
 
 called the dogmatic ; the other, the ' final benefit ' school, may be 
 
 named the logical. 
 
 I have read, and with becoming attention, the views of the 
 several writers whose separate papers and j^amphlets have been 
 collected into a volume. Had it been necessary, I should have 
 been prepared to follow these writers iia their conclusions with 
 some detail ; but this is not necessary, nor will our limited time 
 for reading permit it. The copious and methodical observations of 
 Dr. Franck, delegate from Hamburg, reached me as I was writing. 
 Speaking generally, I may say that those who would limit General 
 Average to a mere restoration to physical safety, are few in number. 
 The view is only urged forcibly by one advocate, and he an 
 Englishman, but his opinions are so careful and sincere as to 
 be always entitled to respectful consideration. I speak of Mr. 
 Lowndes, oi" l-iv<r|i<iiil. I have named the holding of this view 
 ' dogmatic,' because il inxolves the addition of a very arbitrary 
 ])Ower — that of di-fiiiiiig at wlint ])articular link of a chain of con- 
 sequences tlie chain sli;ill Ix' lu-okcn as to joint responsibility. 
 'J'lio act which gives birth to GmiTiil A\('r;igt' gcnci'ates also a 
 train of coiisfqueiiccs, and wave follows wave by a kind of nnlunil 
 ncccssitv. IJut the.se (/o'7/'/;/(,am'.s place their fingeroii;in iniiigiiuiry 
 point of demarcation, and pronounce it \o be the dividing-line of
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 143 
 
 solidarity. Then in a torrent of words, such as ' effects,' ' conse- 
 quences,' ' incidents,' ' causa jiroxima^' and ' causa remota ; ' ' causa 
 causans,' and ^ causa sine qua noji,' ' production of effects,' and 
 ' induction of consequences ; ' ' common evil ' distinguished from 
 ' common danger ' — we grow too giddy to reply, and, when the 
 cloud of dust passes, lo ! the magician is gone. 
 
 Nor must 1 here omit to notice another doctrine strongly held 
 by one whose views have considerable influence — namely, that the 
 condition precedent to an act of General Average is the ' moral 
 certainty of destruction ' as its alternative. This sentence jars 
 strangely with the whole system, and for its decision requires a 
 dangerously arbitrary treatment. 
 
 The * logical ' school — that which fearlessly follows legitimate 
 consequences wherever they lead — is held pretty generally by the 
 foreign members ; in moderation by the English writers, ' (? Fou- 
 trance ' by the Spanish and Swedish Codes, and, with some 
 reservations, by the French ' Code de Commerce.' Many important 
 points of detail will be examined and discussed to-day ; but the 
 distinction which I have dwelt on is the watershed of opinion — 
 the groundwork of our contention. AVhether the efforts of this 
 meeting are directed towards the nnificatiou of our own and all 
 foreign laws and customs, or whether they take the more special 
 sphere of promoting home legislation, ideas will polarise themselves 
 in reference to these cardinal points. 
 
 Our particular attention is, indeed, called on the present oc- 
 casion to a project for a law for the regulation of General Average 
 by our own Legislature. I shall not, therefore, detain the meeting 
 longer with these preliminary remarks ; but I would earnestly de- 
 mand that, before any draft for an Act is placed in the hands of a 
 ]Member of l^arliament, the hearty concurrence of a large majority 
 amongst its promoters should be secured for the proposed statute ; 
 that the danger should be remembered of reducing that liberty 
 which is the life of trade, and fettering an ever-increasing com- 
 merce in its ever-multiplying changes and necessities. 
 
 AVe are told that, amongst the Locrians, any person proposing 
 a new law stood forth in the assembly with a cord round his neck, 
 and, if the law was rejected, the innovator was instantly strangled.
 
 144 MARITIME LEGISLATION. 
 
 Perhaps it is too late in the day to revive that sharp and summary 
 repression of law-making; and this meeting may, without such 
 immediately fatal personal consequences, propose to our law-givers 
 a scheme for regulating General Average. If the Houses of 
 Parliament should think, in their wisdom, that the Association has 
 not sufficiently made out a case, that enough unanimity does not 
 exist for what is required, or that further legislation on the subject 
 is not necessary at the time, the rope may still be used, although 
 it is the projected law, and not its proposers, that will be 
 strangled. 
 
 Dk. Fraxck then read the following statement : — 
 Before commencing our discussion of the draft of Bill proposed 
 by the honoured committee which hitherto managed the General 
 Average movement, I beg leave to report a few facts to the con- 
 gress now assembled, which might pei'haps prove of some interest. 
 As the aim of our labours is to remove the difficulties and the 
 inconvenience arising from the difference of the General Average laws 
 and customs of the respective countries, it was and remains neces- 
 sary to secure the active assistance of all countries with maritime 
 interests, as well that of their commercial classes as that of their Go- 
 vernments, most of which have remained strangers to the question. 
 Being penetrated by the truth of this observation, and very desirous 
 to promote the important undertaking as best I could, I tried to in- 
 terest influential persons, and particularly members of Governments, 
 in this subject. I therefore wrote on this head to the Governments 
 of France, Austria, Prussia, Sweden and Norway, Mecklenburg, Ol- 
 denburg and Hanover, and now beg leave to lay briefly before the 
 honourable congress the poor results of my strenuous exertions for 
 our common cause. As to Austria, the imperial Government did 
 not think it projx-r to bo represented here, because, by information 
 it had from other Governments, it learned that the Congress of 
 York was only a meeting of private persons. Prussia has been ap- 
 ])lied to, not ordy from luiiic, but from several parts. ]lowever, no 
 J'russiau mrinbir is present at our congress. i'^rance, 1 am very 
 hajipy to observe, is, at last, this time represented by our most es- 
 teemed colh-ague, Mr. Director Delehaye, of J'aris ; this, however, 
 being not my merit, but exclufsively that of our very active member
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 14.-) 
 
 of the committee, Mr. Rathbone, of Liverpool. When I arrived at 
 Paris, in order to secure us the presence of a French delegate, Mr. 
 Delehaye had just been appointed the other day. As to Sweden, 
 which hitherto took no part in the movement, I am glad to state that, 
 although his I']xcellency the Swedish Minister of Justice, the Baron 
 de Geer, informs us that the Swedish Government does not think it 
 expedient to send a delegate to York, yet his Excellency authorises 
 me to declare that, according to his personal opinion, the Swedish 
 Government would, if invited by the English Government, most 
 certainly send a plenipotentiary to a conference for settling finally 
 the contents and shape of an universal General Average law. I am 
 of the opinion that this declaration is the more to be valued if we 
 consider that Sweden, after the most prolonged labours, at last just 
 now has finished her new maritime law, which is to come into 
 operation in the beginning of next year, and yet Sweden would be 
 willing to adopt a new universal General Average law. His Excel- 
 lency the Mecklenburg Minister of Justice, Dr. Von Schroter, had 
 the kindness to write at great length on our undertaking, which he 
 considers to be, as for Mecklenburg, of high importance. He 
 authorises me to declare that the movement, so far as it concerns 
 his country, may be sure of his active support. The Oldenburg 
 Minister writes about to the same effect. All, however, decline to 
 send official representatives to a private congress ; but all will be 
 ready to delegate plenipotentiaries, and to adopt, in the place of their 
 own laws, an universal General Average law. I beg leave to state 
 that the same is to be expected from the free cities of Hamburg 
 and Lubeck, by whose Chambers of Commerce I have the honour of 
 being delegated to this most honoured assembly. I beg to repeat 
 that not the governments of these two cities are the delegating 
 bodies, but their Chambers of Commerce. I, as well as most, per- 
 haps all the other delegates, have no power of binding my consti- 
 tuents ; they reserve to themselves the full right of considering the 
 result of the congress, and then to decide on any further step which 
 possibly ought to be taken afterwards. With respect to the voting, 
 I beg leave to observe that my instructions from Hamburg compel 
 me sometimes to vote in my capacity of delegate for Hamburg 
 against my own convictions. Lubeck, however, having not fettered 
 
 L
 
 146 MAPJTDIE LEGISLATION. 
 
 me by any instructions, my vote for Lubeck will be sometimes at 
 variance with my vote for Hamburg. 
 
 Further, I beg leave to say, for safety's sake, a few words with 
 respect to the circumstance that we now are making the draft of the 
 Bill prepared by the honoured committee in the first place the basis 
 of our discussion. I should have taken the liberty of opposing the 
 mode of procedure but for the mutual understanding which I learn 
 prevails, that as soon as the draft Bill has been discussed, amended, 
 and passed, our congress will enter on the task of framing an uni- 
 versal code of General Average law as the second part of our labours. 
 According to my opinion, it would perhaps have been better to enter 
 immediately on the task of framing the code of General Average law, 
 as the questions treated in the draft of the Bill have been discussed 
 so very often, that most likely the members of our congress have 
 already formed their ultimate opinion on them, and therefore 
 another preliminary deliberation might perhaps be superfluous. 
 But as the general opinion is in favour of considering in the first 
 place the provisions of the draft of the Bill in question, and then in the 
 second place the code, I submit, of course, to this mode of procedure. 
 
 Lastly, I take the liberty to observe that I should already at 
 present put a resolution respecting the management of the whole 
 General Average undertaking, as, from the reasons stated in my 
 pamphlet, which is in the hands of the members of this congress, 
 I am fii-mly convinced that our congress ought to be only a preli- 
 minary one, and that steps must be taken to induce her Britannic 
 Majesty's Government to lend us in general their powerful assist- 
 ance, and in particular to invite the other Governments to send 
 competent delegates to a joint conference for agreeing finally on 
 a complete, uniform, universal code of General Average law. But 
 as I undcistand that it is the general wish to have this question, 
 settled after the draft of Bill has been considered, I shall delay the 
 proposing of tlie resolutions until that time. However, as it is 
 always of some use and interest to know as soon as possible, and 
 beforehand, the proposals wliicli will be made, I hereby begto give 
 the formal notice, that it is in\' iulcnlion to put the two followinsr 
 resolutions at issue as soon as the draft in (piestion has been 
 discussed.
 
 INTERNATIONAL LAW OF GENERAL AVEKACE. 147 
 
 I am ill till' painful situation of being coinpellcd to make 
 proposals, wliich 1 know, beforeliaud, tliougli elsewhere entirely ap- 
 proved of, here will meet with but little sympathy and much opposi- 
 tion. But I am in duty bound to move for the said resolutions, as I 
 am firmly convinced they would save our common cause from the peril 
 of defeat in which it stands, and that they would lead us to success. 
 More, perhaps, will be said when we come to discuss this subject ; 
 at present the foretroing is only a necessary declaration, an inti- 
 mation of my intentions. I was compelled to give these explana- 
 tions in order to remove any doubt as to the consequences of the 
 circumstance that 1 do no longer oppose the draft of the Bill being 
 now made the basis of the first part of our joint labour. 
 
 In accordance with the Chairman's suggestion, it was then re- 
 solved unanimously : ' That the object of this congress is simply 
 to carry out the Glasgow resolution passed on September 27, 1860 ; 
 and, that it is by no means intended that the Bill should be passed 
 only by the English Legislature, but that, in the terms of that 
 resolution, it should, when perfected, be recommended to the legis- 
 lative authorities of all commercial nations, to enact the same into 
 a law.' 
 
 The Chairman. We will now proceed to consider the clauses of 
 the Bill. We are to see to how much of it we can agree, and 
 therefore to concentrate in it, as much as we can, our views on the 
 subject. It would appear very desirable not to waste our time on 
 comparatively unimportant points, but to apply ourselves to those 
 points which seem capable of being passed without any great amount 
 of opposition from one party or the other. 
 
 The first section of the Bill is this : ' A jettison of timber or 
 deals carried on the deck of a ship, in pursuance of a general 
 custom of the trade in which the ship is then engaged, shall be 
 made good as General Average, in like manner as if such cargo 
 had been jettisoned from below deck. 
 
 ' No jettison of deck cargo, other than timber or deals so carried 
 as aforesaid, shall be made good as General Average ; but if the 
 shipment on deck have been made without the consent or sanction 
 of the shipper or owner of such cargo, the loss resulting from such 
 jettison shall be made good by the owner or owners of the ship ; 
 
 I, 2
 
 148 JIARITIME LEGISLATION. 
 
 whereas if such sliipment Lave been made with the consent or 
 sanction of such shipper or o^^■ner, the loss of cargo shall fall upon 
 such shipper or owner. 
 
 ' Carcro which is in a deck-house, poop, or topgallant forecastle, 
 shall, for the purposes of this Act, be treated as cargo laden on 
 deck.' 
 
 It will be better to consider each paragraph of this section 
 
 separately. 
 
 Dr. Rahusen proposed as an amendment that : ' No jettison of 
 deck goods shall be made good as General Average.' Not only 
 timber but cotton and many other kinds of goods were frequently 
 carried on deck, and if the old-established principle of excluding 
 deck loads from the benefit of contribution was broken in upon, it 
 would be difficult to know where to stop. There seemed no clear 
 distinction in principle between timber and other cargoes. 
 
 Mr. Rathbone seconded Dr. Rahusen's amendment. He be- 
 lieved many respectable shipowners engaged in the St. John's 
 trade would prefer the clause to exclude deck loads from General 
 Average, because they could then, insure their freight on deck and 
 invariably recover from their own underwriters in case of loss, 
 without going into the difficult question as to whether the loss ox 
 the cargo was caused by a voluntary act, or directly by perils of the 
 sea. Carrying cargoes of cotton from the Mediterranean on the 
 decks of steamers had now become a general custom. Lastly, if 
 deck loads were excluded from General Average, the assured would 
 have to value them separately ; which would enable underwriters to 
 check, however imperfectly, the overloading of the cargo on deck ; 
 whereas at present the whole cargo was valued together, and it 
 might appear the interests of shipowners to take on board freight 
 which they would lie perfectly prepared to jettison, knowing they 
 could recover the loss in General Average. 
 
 Mr. H. J. Atkinson. I think there have been very few cases in 
 which wood has been tlirown overboard unnecessarily: a consider- 
 able portion of the loss generally falls upon tlic sliipowner himself, 
 find in most cases tlierc is no clause in his policy on the ship to 
 reind)urse him for that portion. Jt has ])een asked, why draw a 
 distinction between timber and cotton ? Timber is not so damaije-
 
 1XT1':UNAT10NAL LAW OF GENERAL AVEILAUE. li'J 
 
 able as cotton ; inerchaiits object to have cotton carried on deck. 
 With timber, on the other hand, this is the customary mode of 
 stowage. At a meeting of the Hull Shipowners' Association, tlit^y 
 were unanimous in agreeing to this clause, and they considered 
 that tliis was fair as between man and man. I think there is one 
 omission ; that is, after the word ' deals,' where it occui's in this 
 paragraph, I should add ' or any other description of wood 
 goods ; ' timber or deals would not carry everything in the timber 
 trade. 
 
 Mi{. Lowndes. It is a mere omission, and no doubt the com- 
 mittee will assent to that addition. 
 
 The Chairman. It will be necessary to carry that amendment. 
 The first amendment offered is in these terms : ' No jettison of 
 deck cargo other than timber or deals, so carried as aforesaid, shall 
 be made good as General Average ; but if the shipment on deck 
 have been made without the consent or sanction of the shipper or 
 owner of such cargo, the loss resulting from such jettison shall be 
 made good by the owner or owners of the ship : whereas if such 
 shipment have been made with the consent or sanction of such 
 shipper or owner, the loss of cargo shall fall upon such shipper or 
 owner.' It would seem that the latter part of that clause would 
 hardly be necessary to legislate upon. 
 
 Mr. Hudson. As a shipowner I think that, unless you pay 
 double freight, you must allow the carrying of a deck load. As for 
 overloading the ship, as Mr. Rathbone said, you can take the same 
 precaution as for any other goods. 
 
 Mr. Gourley. As a shipowner I can say there is no danger in 
 carrying a moderate deck load of timber ; as for overloading, 
 captains will not knowingly do so, if only from a consideration of 
 their own safety. 
 
 Mr. Crusemann. I quite concur in the amendment of Dr. 
 llahusen : the exclusion of deck loads does not, and ought not, 
 however, to apply to the coasting trade. 
 
 Mr. Wendt. Some vessels in the timber trade are particularly 
 built for the purpose of carrying large deck loads ; and I know it 
 as a fact that in some ports of the Baltic vessels are constructed 
 to carry as much as one-fifth to one-fourth of the whole loading
 
 150 MARITIME LEGISLATION. 
 
 capacity on deck. Timber goods, therefore, I think we are all 
 justified in allowing to be can'ied on deck. 
 
 Mr. Baily. There is a flaw in this section, for with the latter 
 part of the second clause we have nothing to do. The only ques- 
 tion before us is, shall we, or shall we not, allow this loss in 
 General Average ? We shall therefore have to amend the words of 
 this clause. Two points only are to be considered by us : first, 
 what would be the effect on commerce generally of supporting the 
 practice of carrying deck loads, by allowing in General Average 
 jettisons of such deck loads ? and secondly, what is a deck load ? 
 
 The Chairman. I would put these clauses separately— the one 
 to be dealt with at present is the first : ' A jettison of timber or 
 deals carried on the deck of a ship, in pursuance of a general 
 custom of the trade in which the ship is then engaged, shall be 
 made good as General Average in like manner as if such cargo had 
 been jettisoned from below deck.' 
 
 ]\Ir. H. J. Atkinson. I should like to hear Mr. Baily 's views 
 on that point. 
 
 Mr. Baily. Our House of Commons came to the conclusion, 
 after an inqniiy by its Committee, that it was so dangerous to 
 carry a deck load between September 1 and May 1 that they 
 would not allow it. If the danger was so great between those 
 dates that the caiTiage of a deck load was during that time pro- 
 hibited, it must be considerable in August and May, and, although 
 less in July and June, must eveii then liave existed. So long as 
 danger results from carrying a deck load, the practice must be 
 objectionable. It is true that this Act is now rej)ealed, but it was 
 ri-jte;ile(l 1)\' a side wiud. lint (ill ils merits. 
 
 M\{. II.. ). AiKi.NSoN. \\ lial is now the common jiractice in 
 cases of tiudjer jettisons of di'ck luads lietweeii J^iverpool and the 
 Baltic, and other places? 
 
 Mk. P>AII,^■. (ireat (litlieiilt ies ami aiioiiialies exist as regards 
 the [jraclice in tliis (•(niiiliy <>\' adjust iiig jettisons ol" deck loads. 
 1'he owners of the cargo Ixlow deck have notliing to do with the 
 jettison, but the value of their goods must Conn part oCllie couti'i- 
 biiling \aliic. This raises t lie (|uestion who is to pay the portion 
 falling on it — t he owner of i |ir ship, oi' t he owjmt of i h'' gottels lost ?
 
 INTERNATIONAL LAW OF GENERAL AVEKAGi:. 151 
 
 Mr. II. J. Atkinson. As a matter of principle the motion of 
 Dr. Kahusen is a fj^ood one, although not likely to be fully adopted, 
 but it would be well if the thing could be done. A general rejec- 
 tion of deck loads could not be admitted. It is the custom of our 
 country to load certain cargoes on deck. 
 
 JiDGE Marvin. Tlie present law and practice of the United 
 States is, that the loss of any kind of deck cargo is not allowed as 
 General Average. The rule is universal both as to foreign and 
 coasting voyages. I see in this section that the law is laid down 
 in the same manner, but there is an exception made in allowing 
 the contribution of timber and deals. I had sup]wsed it was 
 brought forward by English gentlemen with a view to favour the 
 trade carried on between Great Britain and her colonies, the 
 Canadas and other places. I suppose this was brought forward to 
 protect the English trade, and I am prepared, as one of the dele- 
 gates of the United States, to concede to these gentlemen that it 
 should be so. JVIy vote will, therefore, depend upon the fact 
 wliether the English gentlemen desire an exception to be made in 
 favour of timber and deals ; but if they do not, I should vote that 
 there be no contribution whatever. 
 
 The Chairman : That would be in conformity with the American 
 law. 
 
 Judge Marvin : If it should be admitted, it would be on my part 
 a concession to the English idea ; for myself I would rather stand upon 
 the universal law, but if the English think that the timber trade 
 should be protected, then I should withdraw my objection and vote so. 
 
 Mr. LowNi)t:.s. The question is not whether timber should or 
 should not be carried on deck ; merchants themselves must decide 
 that. It is a fact that a very large majority of timber cargoes are 
 partially carried on deck. If this is a custom of shipowners which 
 ought to be discouraged, surely it is for the Legislature of the 
 country to take up the matter on the grounds of humanity or 
 general policy, and declare whether cargoes shall be so carried or 
 not. ^Ye have nothing to do with that. The real question with 
 us is, which is most for the interest of commerce in general — 
 accepting it as a fact that deck loads of timber are carried — 
 whether, if they are jettisoned, the loss shall be a General Average
 
 152 MAPJTI.ME LEGISLATION. 
 
 or shall not be a General Average. It is not a matter of indif- 
 ference to third parties whether such a sacrifice is made General 
 Average or not : it affects the safety and the lives of the crew and 
 passengers. It does so, by encouraging the timely throwing over- 
 board of such cargoes when it is dangerous to delay ; whereas if 
 the captain knows that the loss will fall solely on the ship, he will 
 be tempted to put off such a sacrifice to the last moment, when it 
 may be too late. We cannot prevent the carrying of deck loads ; 
 the only question is, how is the matter to be managed so that the 
 least mischief may be done ? This appears to me the great argu- 
 ment in favour of the clause as it stands. 
 
 The Chairman. I will put to the meeting for adoption first, Ur. 
 Rahusen's amendment, taking', with his concurrence, the first j^ro- 
 position alone ; suppressing the remainder, which might invite 
 discussion. I'he amendment is, then, ' That no jettison of deck 
 cargo shall be made good as General Averag'e.' 
 
 Dr. AVerthei.m. It would be against the principle of General 
 Average for such jettisons to be allowed. Timber deck loads cause 
 great peril to the rest of the cargo ; for in a storm the timber goes 
 over on one side, and hence it is that the captain throws over the 
 deck load. I do not think that under such circumstances the loss 
 should l)e made matter of General Average. Mr. Crusemann 
 would exclude the coasting trade ; 1 do not object to that. 
 
 The amendment was put. 
 
 For the amendment ..... 8 
 Against it . . . . . . .12 
 
 y\\{. \.\s ]'i;i;()K(iH : 1 beg to state that my vote against Dr. 
 Ilahusen'.s motion is not on the ground of" principle, but only on 
 that of convenience; as considering it imi)ossible to have adopted 
 in every country a universal rule abolishing the authorisation of 
 loading timber on deck in Noyages where it has been from all 
 times customary to do so. JJesitles that, all otlier deck loads being 
 ))rohibited, this will be really a suflieient iiii|n-()\-euient for com- 
 mercial and insurance coniniiinit les. 
 
 'I'liK Chairman: We will now takr llie xoics iipdii the first 
 clause as it originally stood; still nmitting those last words, which 
 appear iinu'^'cessary.
 
 INTERXATIOXAI. LAW OF GENERAL AVERAGE. 153 
 
 For the clause . . . . . .18 
 
 Af^ainst it ....... 2 
 
 Tilt.' claiisi' was accortlingly passed. 
 
 The Chairman. I will now read to the meeting the next 
 clause of this first section : ' No jettison of deck cargo other than 
 timber or deals, or other wood goods, so carried as aforesaid, shall 
 be made good as Gen-ral Average.' There is an exception pro- 
 posed by the represtmtative of Bremen (Mr. Crusemann), as to 
 goods carried in the coasting trade by permission of the law of the 
 country to which the vessel belono-s. The words followina: in the 
 original draft Bill are, I think, by general consent to be omitted. 
 
 Mr. Gourley. I would move as an amendment that there be 
 inserted the words, ' tar, cotton, and tallow,' because those articles 
 are carried as commonly now as timber. 
 
 Mr. Van Peborgh. I strongly object to the amendments of 
 Mr. Crusemann, and also to that of Mr. Gourley. They are con- 
 trary to all my experience of the rules of other countries. You 
 would have to define what is a ' coasting voyage,' and this in a 
 different way for different countries according as their laws or 
 customs on this subject may differ. It would be impracticable. 
 
 Mr. Fisher pointed out that the voyage from New York to 
 California was only a coasting voyage. He wished to know how it 
 was proposed to deal with cattle on deck. 
 
 Judge Marvin. I would, as I said before, limit the allowance 
 of deck-load jettisons as much as possible, the thing being, in my 
 judgment, contrary to principle. We have conceded timber and 
 deals ; let us go no farther. 
 
 Mr. Rathbone. We are considered as going too far in this 
 Bill as it is ; do not let us go on to introduce other things into it, 
 that every code on earth includes. 
 
 Afler some further conversation, Mr. Gourley 's amendment was 
 put and lost by a large show of hands. 
 
 The Chairman. The next amendment is as to ' cattle ' in 
 addition. 
 
 Amendment put and lost by a large majority. 
 The Chairman. The next amendment is that wliich has relation 
 to the coasting trade, • with the exception oi' goods so laden iu the
 
 154 MARITIME LEGISLATION. 
 
 coasting trade by the permission of the laws of the country to 
 whiieh it belongs.' 
 
 Amendment put and lost by a large majority. 
 
 The Chairmax. I will now put the original clause. 
 For the clause . . . . . .15 
 
 Against it ....... 4 
 
 Clause carried accordingly. 
 
 The Chairman. The next question is as to the last words of 
 the section, viz. : ' Cargo Avhich is in a deck-house, poop, or top- 
 gallant forecastle, shall for the pur2)oses of this Act be treated as 
 cargo laden on deck.' 
 
 Mr. Jacob, as a delegate from the Shipowners' Association 
 at Liverpool, was instructed by that body to move as an amend- 
 ment the entire omission of this clause. The shipowners were 
 very much dissatisfied with the proposed exclusion of cargoes in 
 the poop from the benefit of a General Average. They thought 
 the proposal must have been made without sufficient consideration 
 of the magnitude of the interests involved. The quantity of cargo 
 carried in the poops of ships was very great, and its value was 
 even greater in proportion, since a great deal of silk and other 
 light and valuable produce was carried in that manner. It would 
 never do to exclude such cargoes. His instructions were to move 
 for the entire omission of the clause. At the same time, speaking 
 fur himself, if the feeling of the meeting were (as he had been led 
 to suppose it was) o[)posed to this view, he should be prepared to 
 support the amendment which he understood Mr. Baily was about 
 to projKj.se, as he thought that would answer the purpose. He 
 ex))n'ss('d regret at the course taken by Lloyd's committees and in 
 London, because he was satistied from practical experience, that some 
 measure tfiiding (<» a nuKiMil of the differences among different 
 eounlries was very inucli wiinted, and might really be carried out. 
 
 Mr. Ill DSo.N seconded t lie amendment of Mr. Jacob. He thought 
 it would l)e very unjust to treat- poop cargo as cargo upon deck. 
 
 Mh. IjAILV. ] beg le.,\c lo iiioN'e lliis anieiuhneiit : 'Every 
 s In let 1 1 II' not Imill in with t lir IVaiiu' of t lie vessel shall be considered 
 to be a part oCtlir deck of the N'essel." The poop is always built 
 in with I 111' IVanii' (jf the vessel, and is recognised Lo be lit to receive 
 .'-.uch goods even as silk. 
 
 r
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 155 
 
 Judge Marvin seconded Mr. Baily's amendment. 
 
 Captain CrOUHLKY thought that the expression ' built in the 
 frame ' was rather vague, and might give rise to dispute. Would 
 it not be better to substitute, ' not includi'd in the register tonnage ' ? 
 
 Mr. Jacob. That would not do ; for, under the Mercantile 
 IManne Act, tlaey measure in with the tonnage hurricane-houses, 
 and many kinds of deck-houses which I should be very sorry to 
 carry cargo in. 
 
 Mr. Gourley thouglit Mr. Baily's amendment preferable to 
 the entire omission of the clause. It really was desirable to define 
 what was meant by the term ' deck,' since vessels are often built 
 with three or four decks. Take the register tonnage, or some 
 other rule ; but at least have a rule. This was not an underwriter's 
 question, but should be dealt with, as between shipowner and 
 merchant, on general principles of justice. 
 
 Dr, AVertheim wished to know what would be the effect of Mr. 
 Baily's amendment. How^ would it bear on the case of houses built 
 on to the beams? 
 
 Mr, Baily. I adopted the word ' frame ' because I have been 
 told by shipowners that it includes the ribs only, and not the beams. 
 Houses of all kinds are objectionable for cargo. In a case which 
 came before me, one of the regular American packets had a house 
 for the crew, and it is reasonable to suppose that this house was at 
 least a fair specimen, and yet it was swept away, and not one officer 
 was left to the ship to bring her home, but the third mate, a l)oy. 
 It may be supposed that whatever you put the crew into is a proper 
 place for cargo, but it is not so. 
 
 Mr, Hudson. There is a description of houses called ' Liverpool 
 houses' which are really part of the ship, built in the middle of the 
 ship, and the deck is carried up to them. If any person can point 
 out how they can be defined, I will say nothing more on the subject. 
 The houses I refer to are as strong as the frame of the sliip. A 
 poop may be washed away, but that would only be by extraordinary 
 weather, against which the shipowners have to insure. Let the 
 words be ' permanent houses.' They must be sufficient to cany 
 cargo, if sufficient to carry the crew. 
 
 Dr. Franck. It would be better to leave this clause out
 
 156 MARITIME LEGISLATION. 
 
 altogether. We rarely put into the deck-house anything but the 
 crew. The crew will look to the safety of it themselves. Seamen 
 have objected to berths, and would not ship in consequence of the 
 accommodation not being what it ought to be. I therefore think 
 it would be better that the clause be expunged, 
 
 ;Mr. Jacob withdrew his amendment, and the votes were then 
 taken on Mr. Baily's amendment. 
 
 For the amendment . . . . .14 
 
 Against it ....... 7 
 
 Amendment carried accordingly. 
 
 The Chairman. The next section, the second, concerns the 
 damage of goods at the time of the jettison : ' Damage done to 
 •goods or merchandise by water which unavoidably goes down a 
 ship's hatches when opened for the purpose of making a jettison, 
 shall be made good as General Average in case the loss by jettison 
 is so made good.' We had better take this first clause only at 
 present. 
 
 After some discussion as to the mode of wording the section, 
 and a slight modification of it, Mr. Baily moved as an amendment 
 that the word ' not ' be inserted after ' shall.' He objected on 
 practical grounds solely. It was a curious fact that claims of this 
 nature were scarcely ever found to be made except in the case of 
 such cargoes as were insured ' free of particular average.' The 
 rule as proposed opened a door for frauds and disputes. There 
 would constantly be put forward statements which it would be 
 difficult to believe, Init inqiossible to disprove. 
 
 Mi;. I'ltADFoiU) (lid iiot think the difficulty of proving the 
 extent of tlu" damage was a sufiicit'ut reason for excluding a loss 
 which was confessedly admissible in princi])le. In many things 
 besides this, it was dillieiilf fer llie adjuster to make uj) his mind 
 as to \slieii, wliei'r. iiiid linw damjige had occurred ; but he had to 
 find that out as well as lir could. This was not a. more difficult 
 case than others. The chiini li;id in each case to be su])ported by 
 lu-oof; if there were lu) ])roof, it must be rejected: that was no 
 reason for rejecting it in cases wlnre there was pi'ooC. 
 
 Mli. JiAILV. ^'ou nnist rrc(i||cct that., when water goes down 
 the hatches, the gouds which it dauuiges are very often thrown
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 157 
 
 overboard, and wlicn they arc thrown overboard tho rejection of 
 such damage does not work any injustic(\ When they are not 
 thrown overboard, the water finds its way to the bottom of the 
 ship, and it then becomes impossible to distinguish between tlie 
 damage done by the water admitted in this way and the damage 
 done by water ndinitted in otlier ways. 
 Mr. Baily's amendment was then put. 
 
 For the amendment ..... 1 
 
 Against it . . . . . . .20 
 
 The clause was then put and carrit d. 
 
 The Chairman'. The next clause of this section is : ' Damage 
 done by breakage and chafing or otherwise from derangement of 
 stowage consequent upon a jettison shall not be made good as 
 General Average, but shall fall upon the owners of the goods so 
 damaged or their underwriters.' 
 
 Mr. Atkinson moved that the Avord ' not ' be omitted. It 
 seemed to him only reasonable to treat this loss, which was clearly 
 a consequence of the jettison, in the same way as the jettison 
 itself. 
 
 Dr. Wertheim seconded that amendment. 
 The amendment was put. 
 
 For the amendment . . . . .16 
 
 Against it ....... 6 
 
 The amendment was therefore carried. 
 
 On the Right Honourable Chairman's vacating the chair, Mr. 
 Wendt was called thereto. 
 
 The Chairman. The next section is No. 3 : ' Damage inten- 
 tionally done to a ship or cargo for the purpose of extinguishing 
 a fire on board ship, and damage done by water poured in or 
 admitted through scuttle-holes or otherwise for the said purpose, 
 shall be made good as General Average.' 
 
 After some discussion as to the language of this section, it was 
 agreed that it should stand as follows : ' Damage done to a ship 
 and cargo by water or otherwise in extinguishing a fire on board 
 the ship shall be made good as General Average.' 
 
 Dr. Rahusen proposed that the words ' and freight ' should be 
 added, but withdrew his amendment on the assurance that a clause
 
 158 MArJTIME LEGISLATION. 
 
 should be added to the Bill, so as to attain his object in a more 
 general war. 
 
 The section as amended was carried unanimously. 
 
 The Chairman then put to the meeting section No. 4, viz. : 
 ' Damage done by cutting away the wreck or remains of spars, or 
 other things, which had previously been carried away or perma- 
 nently displaced by sea peril, shall not be made good as General 
 Average.' 
 
 A discussion arose as to the propriety of omitting the word 
 ' permanently,' and it was eventually agreed to admit the words 
 ' or permanently displaced.' 
 
 M. Delehaye did not approve of this clause. He thought, if 
 wreck was cast away for common good, the value of that wreck, 
 whatever it might be, ought to be replaced by general contribution. 
 Such was at present the law of most maritime countries. 
 
 The clause as amended was carried by a large majority, three 
 votes only being given against it. 
 
 Adjourned till to-morrow at 10 o'clock. 
 
 Septeviler 27, ISGi. — Sir Fitzroy Kelly in the chair. 
 
 Before the chair was taken, ^Mr. Wendt read a letter from the 
 Portuguese consul, which stated that his (iovernment had deputed 
 him to attend the congress, and that, though prevented by illness 
 from doing so, he wished to be supplied with some printed or 
 other record of the proceedings, for transmission to his Govern- 
 ment. Much satisfaction was expressed at the action of the 
 Portuguese Government. 
 
 TliK Secretary read tin- .Minutes of proceedings of the 26th 
 instant. 
 
 'J'liK Chairman )»ut to the inccting tlic fifili section, viz, : 'If a 
 ship is intentionally run asliore, in oider to avoid capture or 
 foundering, and is afterwards got off and rejiaired, all damage 
 caused either to the ship or cargo on board by such running 
 ashore shnll lie made good as General Average. If a ship has 
 been intent ionallv run ashore as aforesaid, but is not afterwards
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 159 
 
 got off the shore, or being got off is found irreparably damaged, 
 or so damaged as not to be worth repairing, no compensation in 
 the way of General Average shall be made for the damage caused 
 by such running ashore.' 
 
 Mr, Manley Hopkins considered the principle of allowing in 
 General Average the damage done to a ship by intentional strand- 
 ing to be perfectly sound. The practical difficulties of carrying 
 out that principle, however, and the inconveniences it would 
 occasion, were so considerable, that he would prefer to exclude it 
 in all cases excepting that of running ashore to prevent capture. 
 He had prepared an amendment to that effect, but would not at 
 present bring it forward. 
 
 The Chairman with great fulness and perspicuity explained 
 the system on which the debate was to be carried on. Amend- 
 ments were first to be taken; and, of these, those came first which 
 dealt with the earliest portions of the clause ; after all amendments 
 had been dealt with, the clause in its amended form would have to 
 be i^ut to the meeting. 
 
 Some discussion ensued as to the amendments to be proposed, 
 after which. 
 
 Judge Marvin. I move the following amendment : In the 
 third and fourth lines of the first paragraph I move to strike out 
 the words ' and is afterwards got off and repaired.' I presume all 
 here understand that there are two principles involved in this sec- 
 tion. As it stands, it seems to be founded on the idea of the new 
 German code, which limits the right to recover the damages sus- 
 tained by voluntary stranding to those cases in which the vessel is 
 afterwards gotten off and continues her voyage. I propose to 
 allow such damage in General Average, independently of the 
 circumstance whether the vessel be gotten off or not. The law of 
 the United States upon this point is fully settled. Perhaps there 
 is no question in the whole range of General Average law that has 
 been so elaborately, and so learnedly, and so ably discussed in the 
 Supreme Court of the United States, at Washington, as this very 
 subject of voluntary stranding. I believe that all the points that 
 could arise have been uncovered by the discussions of that court, 
 which is the authoritative and the court of last resort. In a very
 
 IGO ]\JATIIT1ME LEGISLATION 
 
 able decision made about ten years ago, the Supreme Court adjudi- 
 cated that where a vessel was driven ashore upon the rocks, and 
 was to a very large extent beyond the control of the master — where 
 she was irresistibly driving amongst the rocks, and must, under 
 any circumstances, have gone ashore ; but the master put up his 
 helm, trimmed his sails, and managed with considerable skill, with 
 the aid of his pilots and crew, to put her ashore on a sandy beach 
 instead of on the rocks : by doing this he saved the cargo and lost 
 the vessel, for the vessel was not got off : this was held to be a 
 case of General Average. I propose by this amendment to place 
 the law upon the same footing as that of the United States ; at 
 the same time I am prepared to assent to the proposition of Mr. 
 Baily which will be offered by-and-by. I propose, therefore, that 
 such damage shall be allowed in General Average, whether the 
 vessel is gotten off or not. 
 
 Dr. Eahusen seconded the amendment. 
 
 Dr. Wertheim : Mr. Marvin's amendment would tend to in- 
 troduce the principle of the American law. The Dutch law has 
 been so from the first time that we had any maritime law in 
 Holland : that all damage done by intentional stranding should be 
 paid for. Under section 99 of the Dutch code it is enacted ' that 
 all damage done to a ship or cargo, in order to escape capture, or 
 to avoid foundering, shall be paid for in General Average.' The 
 only question to be asked is, whether it is done intentionally to 
 avoid peril. When we look at the result of the discussions at the 
 meeting held at Glasgow, we find that it was proposed that damage 
 done to a ship in voluntary stranding should not be General 
 Average. AVhat was done there ? It was decided by a large 
 majority tliat as a general rule in the case of stranding it ought 
 not to be the subject of General Average, hut sithject to dear proof 
 of Hixxial facts. We think it ought to be asked for as General 
 Average: we Bhull therefore vote for the ]u'inciple of the amend- 
 ment })roposed by Judge ^larxiu, because it is that adopted by the 
 maritime laws of Holland. 
 
 The Chairman: The question tiiat 1 am now lo put is this, 
 whether the words now proposed shall stand part of the clause. 
 'J'lie i-eul fjuestion is, whetlid- llir ;illo\\;ince in (lenei;il Average of
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. K'.l 
 
 damage clone by voluntary strantling, is or is not to bo conditional 
 on the ship's being got off and repaired. 
 
 For the amendment ..... 8 
 Against it ....... 9 
 
 The Chairman. The amendment is rejected and these words 
 stand part of the clause. Has any gentleman any amendment to 
 propose after the fourth line ? 
 
 Mr. Lowndes proposed that in place of the words ' or so 
 damaged as not to be worth repairing,' be substituted, ' or so 
 damaged that the expense of repairing would exceed the value of 
 the ship when repaired, and if the ship shall not be in fact repaired.' 
 He proposed this, merely to remove that which might be an 
 ambiguity for foreigners, as in some countries a ship is treated as 
 not worth repairing when the cost of repairing would exceed three- 
 quarters of its value. 
 
 Mr. Rathbone seconded the amendment. 
 
 Amendment put. 
 
 For the amendment ..... 8 
 Against it ....... 9 
 
 Mr. Crusemann. I move also an amendment which will bringr 
 the section more within the German law on this subject. It is the 
 obliteration of the words ' or so damaged as not to be worth 
 repairing.' 
 
 On the vote there were — 
 
 For the amendment ..... 6 
 Against it . . . . . . .8 
 
 The Chairman. As the three partial amendments that have 
 been proposed have now been disposed of, I will now put the 
 general question. It is one of great importance. This clause 
 which is proposed by the society to be introduced into the law of 
 Great Britain, with the hope that it may be adopted by most, if 
 not by all, the maritime nations of the world, is, that the intentional 
 running ashore of a ship in order to avoid capture or foundering, 
 shall, where the ship is got off and repaired, be made matter of 
 General Average. Nations and courts of law have differed more 
 or less upon this subject. It is a subject worthy the consideration 
 of this meeting. I shall be very glad to hear any discussion upon 
 
 M
 
 1G2 MARITIME LEGISLATION. 
 
 it; and will only observe at the present moment, that the dis- 
 cussions of this meeting will no doubt have considerable weight 
 with the House of Commons and the House of Lords in this country 
 whenever such a Bill shall be introduced, I collect that it is the 
 intention of those who are interested in this question to endeavour 
 to bring forward a Bill carrying into effect these various provisions, 
 and I shall be very glad to see that Bill brought into the House of 
 Commons, of which I have the lionour to be a member. I may, 
 perhaps, be called upon to report as to my knowledge of it — to 
 say what I may know of the general feeling and opinion of those 
 who have an interest in, and have made themselves masters of, 
 the subject. I shall therefore listen with great interest to the 
 discussions on this Bill. The question is familiar to you all, and 
 whatever maybe the decision of this meeting, even if there happen 
 to be differences of opinion, I shall take care to report, with all the 
 weight that belongs to it, the practical opinion of this assembly 
 whenever the case shall come under the consideration of the House 
 of Commons. Any one may now move, upon the question being 
 put, that this clause stand part of the Bill, or any one may move a 
 negative, or move a clause of a totally opposite character. 
 
 Mr. Baily. I move the following amendment ; that instead of 
 the first clause of section five, the following clause be substituted : 
 ' When a ship is intentionally run on shore because she is sinking 
 or driving on shore or rocks, no damage caused to the ship, the 
 cargo, or the freight, or any or either of them, by such intentional 
 running on shore, shall be made good in General Average.' We 
 had a very long discussion at Glasgow on this subject. It seemed 
 to be the general feeling that, on principle, you could not reject the 
 damage done by voluntary stranding, but the allowance of it was 
 open to so many abuses that the more it was limited the better it 
 would be for underwriters, merchants, and shijiowners generally. 
 'J'ho resolution I ])ropose is framed to meet these difficulties. The 
 main objections to allowing voluntary stranding in General Average 
 are these : When a vessel is on the jxdnl of rouinlciMug she has a 
 quantity of water in her liold ; if run ashore under these circum- 
 stances, it is often alleged that tlio whole damage, or nearly the 
 whole damage, done to the cargo is owing to the straining of the 
 
 I
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 10'. 
 
 sliip by rimning her ashore. This allegation is not the fact, but it 
 leads to a great deal of abuse and fraud ; and, therefore, we were 
 of opinion at Glasgow, that we had better exclude it in the case of 
 foundering. When a ship is run ashore to avoid the fire of a 
 battery, or capture, the same reasons do not apply, and there may 
 be nothing to justify the exclusion of that damage from General 
 Average. Those gentlemen even who are against the allowance of 
 any damage done by running a ship ashore may sanction the 
 amendment as a compromise, for there are not many practical 
 objections to it ; so that those who are opposed to all allowance 
 may adopt this amendment, and those wlio are agreed that in 
 principle such damage ought to be allowed, but that there are prac- 
 tical objections to it, may also pass it as a check on abuses. 
 
 Judge Marvin. I second that amendment. 
 
 Mr. Engels. As Mr. Baily now makes it, it is showing the 
 way to the captain to avoid saying that the ship was foundering 
 before he voluntarily stranded her, and so to get safe out of it. We 
 have had instances of fraud — we all agree to that, and it is prac- 
 tically difficult to come at the value of the damage. I think we 
 shall be showing to the captain how he is to act, and what he 
 is to say, namely, that the ship was not sinking. On the principle 
 we are all agreed that voluntary stranding should be admitted ; 
 but the amendment of Mr. Baily will, I think, produce a result 
 different from that we all have in view, and I recommend, in 
 preference, that we should adopt those resolutions on this subject 
 which were agreed to in Glasgow. 
 
 Mr. Rathbone thought the Glasgow resolution decidedly more 
 vague than that proposed by Mr. Baily. Most of the underwriters 
 felt very strongly, and there had been very good reasons for their 
 having a strong feeling against voluntary stranding — the reasons 
 he wished not to be published. . . . 
 
 Judge Marvin. I am favourable to the adoption of Mr. Baily 's 
 amendment ; not that I like it in principle. I prefer the bi-oad 
 principle which I myself previously enunciated. We must, how- 
 ever, make a compromise of principle for the sake of policy : this 
 is a departure from principle and founded on expediency ; it is a 
 concession to the views of the English underwriters and English 
 
 M 2
 
 1G4 MARITTAIE LEGISLATION. 
 
 average-staters. I believe tliey are against the principle of al.ow- 
 ing as General Average any damage clone by a voluntary stranding : 
 this is a concession j^^'o ianto to a certain point, but not of the 
 whole thing. It still retains, after all, the great principle of the 
 General Average doctrine that runs through the whole cases, because 
 it simply excludes from General Average contribution some instances 
 or cases of voluntary stranding, and leaves all the other cases that 
 may arise to follow the general law of being made good in General 
 Average. When a ship is intentionally run ashore to avoid sink- 
 ing or driving on rocks, then it is not a General Average case. It 
 fairly follows that all other cases are General Average. You thereby 
 exclude that very class of cases stated by Mr. Rathbone. If the 
 ship's state is such that she must go to the bottom, or if she is 
 driving against the rocks and the master runs her on shore simply 
 on the gi'ound that she is already sinking, and in that inevitable 
 condition or peril, and the master only selects another place to run 
 her ashore (cases which would not very often arise), I should be 
 willing that the thing should take its course and not let the loss 
 fall on the General Average, leaving it to be determined as to what 
 would be the result if the stranding had been done to avoid capture, 
 or under other circumstances than those defined in the clause. I 
 concede it ; I like that better than the draft Bill, for I do not at all 
 like the section as it stands in the draft. 
 
 Mr. Wendt. There is, as experience has sufficiently shown, so 
 much danger in allowing any case of stranding as General Average, 
 that I would certainly propose to exclude them from General 
 Average altogether. 
 
 Mr. Atkinson. I think that, under all the circumstances, the 
 best plan will bo to adopt the amendment contained in the propo- 
 sition of Mr. Baily. 
 
 Jldgp: ]\Iarvix. I wish to repeat expressly that I regard this 
 as a concession to the undcrwi-itcrs, l)ecause I believe that the 
 Legislature of this country will aflinn I he doctriu(> of the United 
 States, and lliat Inld in lldll.md and on the conlincnt of Europe, 
 and in cverytiiing lliat, llic tcxt-wrilri-s Imvc said on ilie subject, 
 and will pass llieir law accordingly. 
 
 Ml!. DklkiiavE agreed with .Judge J\!ai\In in ajtpi'oving the
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 105 
 
 principle of uuiversally treating a voluntary stranding as a case of 
 General Average. If tliis were objected to, however, be preferred 
 the resolution come to at Glasgow, which appeared to him as 
 explicit as it was practicable to make one on this subject. 
 
 Mk. Bkadfokd could not vote for the amendment, as he could 
 not vote for anything which was against principle, on grounds of 
 mere expediency. He admitted there were practical difficulties, 
 but did not think these should be suffered to override a clear prin- 
 ciple. He did not like the clause as it stood in the draft, for he 
 could not see what difference it made whether the ship was after- 
 wards got off, or not. He should be glad, like his friend Judge 
 Marvin, to concede whatever he could to the English underwriters 
 in a spirit of fairness, but not when it came to a question of 
 principle. He believed the English courts of law, were the case 
 to come before them, would arrive at the same conclusion as the 
 American courts, and indeed those of the whole commercial world. 
 He did not see that the carrying out of this principle was so very 
 difficult. He had himself had within the last seven months to 
 deal with three claims for damage by voluntary strandings, and 
 had rejected them all ; having satisfied himself in each case that 
 the damage was not done by the stranding, but by previous sea 
 peril. 
 
 Dr. Wertheim. How does the principle stand in Mr. Baily's 
 proposition ? 
 
 The Chairman. It leaves the law undetermined as to all cases 
 except those defined in the proposition itself. 
 
 Dr. Wertheim. There is an amendment to exclude only two 
 cases ; all other cases, then, are to be allowed ? 
 
 The CHAHiMAN. It leaves the law actually as it is, except as to 
 the particular cases here named — that of an intentional running 
 ashore because a vessel is sinkino; or driving: ashore or on rocks. 
 
 Dr. Wertheim. Then running ashore in all other cases is 
 General Average, and is not prejudiced? 
 
 The Chairman. Mr. Baily may probably explain that. 
 
 Mr. Engels thought it best, as it was settled at Glasgow, to 
 leave it to the average-staters, who were a most respectable body 
 of men, to determine what cases should be treated as cases of
 
 ]66 MARITIME LEGISLATION. 
 
 voluntaiy stranding. By ^Mr. Baily's amendment, it was put into 
 the mouths of captains what they should say in their protests, so 
 as not to have their claims rejected. He thought there was great 
 danger in pointing out one or two particular cases for exclusion. 
 He could not but think that the Glasgow resolution had its 
 merits. 
 
 Mk. Wendt. If a vessel is put ashore in such a condition that 
 it cannot keep afloat, it is, as a matter of course, a case of Particular 
 Average, and not of General Average. 
 
 Mr. Hopkins. I have no hope that my amendment will be 
 adopted by the meeting. My opinion has been before the world 
 some vears. I think we are making this an underwriters' question, 
 whereas I understood that we were to take a national view of the 
 thino-. I think we ought not to appeal to the committee and say 
 whether the underwriter is injured or not. We are expected to 
 introduce general rules to be hereafter adopted by foreign countries. 
 The average stater takes no view at all, he simply administers the 
 law. These cases bring us a great deal of work in the way of 
 business. Mr. Baily's amendment leaves open two results which 
 will create quarrels and bring on as many difficulties as if the 
 clauses were to stand ; therefore, I think that if we are to legislate 
 at all it should be for a very full measure. I only repeat that my 
 idea is, that the only exception should be a case of threatened 
 capture. 
 
 The Chairman wished that all present should distinctly under- 
 stand the actual position of the debate. The law of England, as 
 it then stood, was, that where an injury had been bond fide done, 
 whether to ship, freight, or cargo, by the voluntary act of the 
 master, in order to prevent some greater calamity, then the conse- 
 quences, whatever they inight be, would belong to General Average. 
 On this princijjle, the law, as regards voluntary strandings, would 
 be the same in l*]ngland as in Ihc United States. If it were wished 
 to leave this state of things untouched, there was no occasion to 
 pass a clause at all. He understood tlmt tlie amendnu^nt was 
 proposed in the interests of the Muglisli umlei-w riters. 'I'hey were 
 ;i hodv of })ersons who li;nl suirere(I (Vom the l;i\v ;is ;idiiiiiiist(>red, 
 not because the law, if duly adniinislered, would l)e prejudicial to
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 107 
 
 them, but because, unfortunately (and lie did not solicit the silence 
 of the press on this subject), there was a prejudice of juries a(,'ainst 
 underwriters, as contrasted with other persons, which frequently 
 led to a verdict of injustice. In no part of the Queen's dominions 
 did that abuse prevail more than in the town of Liverpool. He 
 himself had heard verdicts pronounced in Liverpool, he doubted 
 not by able and well-intentioned juries, which went entirely to set 
 aside the law and justice of the case, simply on account of their 
 prejudice. Some of those present appeared to tliink, with Mr. 
 Jiaily, that the underwriters should have some protection, yet 
 without entirely overthrowing the principle of the law. Others, as 
 was done at Cilasgow, would exclude voluntary strandings altogether, 
 except under some peculiar and exceptional circumstances, which 
 they did not define. Another gentleman would exclude it in every 
 case except that of a stranding to avoid capture. It was also open 
 to them to abstain from making any clause. Between these views 
 they had to choose. The learned gentleman proceeded to point out 
 the proper course to be taken in discussing the various amend- 
 ments. 
 
 After a short adjournment, Mr. Baily replied. In answer to 
 Judge Marvin : This clause does not lay down as a principle that 
 running a ship ashore is General Average in all other cases than 
 those mentioned in the amendment, although that may be a fair in- 
 ference from it. The amendment leaves it an open question in all 
 other cases than those mentioned. In answer to Mr. Delehaye, who 
 would prefer to say that special facts should make the damage 
 General Average : We must look at the resolution as practical men ; 
 if we make exceptions, the case, whatever it may be, will always 
 come within that exception. In every case which we can invent, 
 some one will say that the case comes under the exception. A 
 vague wording like that of the Glasgow clause creates or increases 
 dithculties which we are trying to remove. In answer to Mr. 
 Engels : When a man is in imminent danger of going to the bottom 
 of the sea, he will not go to the bottom if he can avoid it ; he will 
 certainly not elect to go to the bottom because he cannot get the 
 damage done to his ship allowed in General Average. Circum- 
 stances will force him to run the ship ashore, and he will not give
 
 168 MARITIME LEGISLATION. 
 
 General Average a tliouglit Avheu he does it. With regard to 
 pointing out to a captain that he must avoid saying that he ran the 
 ship ashore to prevent her from sinking ; if he does avoid it, the 
 avoidance will not bring the damage into General Average; he 
 must still assign a plausible and good reason for the act. When 
 he has given his reasons, everybody can deal with the case as he 
 thinks right. A man who runs his ship ashore without any reason 
 will get nothing in General Average ; he must assign some justi- 
 fiable reason for doing it, and he will find it very difficult to bring 
 all the actual circumstances to square with a reason which is not the 
 true one, and in his efforts to do it he may find that he had some- 
 thing to pay to the owners of the cargo instead of something to 
 receive for doing it. I know practically that there are great abuses, 
 and I have endeavoured to frame a clause which will, I think, meet 
 all your views, and not clash with the views of either those who 
 hold that everything in such a case is General Average, of those 
 who hold that some things are General Average and some are not, 
 or of those who hold that nothing is General Average. 
 
 The amendment was then put. 
 
 For the amendment . . . . . 13 
 
 Against it . . . . . . . .6 
 
 The amendment carried accordingly. 
 
 Thp: Chairman. If any gentleman, before we proceed to the 
 remaining clauses of the Bill, has to propose that some descrip- 
 tion of loss by voluntary stranding shall come within General 
 Average, now is his time to do so. Mr. Baily does not intend 
 to intt-rfere with the princijile of law as held in one country or 
 another. 
 
 No furtlicr iiiiifudiiiciit having been proposed, the Chairman 
 proceedc(l to put section six, \\a. : ' Damage occasioned to a ship 
 or cargo \)y carrying a ])ress of sail shall not be made good as 
 General Average,' 
 
 Mr. Atkinson proposed as an atiieiidinent that the clause 
 should be altered by adding the words, 'except in cases where such 
 sail is carried to keep oil' a lee sliori'.' 
 
 Dk. 1''ran('K. I second tliiit. I Itclii'Nc tlml cNciy ouv here 
 will Ijf pi"<'p;iri-(l to \()\r lor it. 1 shall make no nniarks.
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 109 
 
 Mk. Ratiihone. I hope it will not be carried, for I tliiuk it 
 lays dowji most duiigerous doctriue. 
 
 Amendment put. 
 
 For the amendment . . . . .3 
 
 Against it. the rest. 
 
 Amendment rejected accordingly. 
 
 Dr. Franck. I propose that the words ' unless it be proved that 
 it was of an extraordinary kind and actually necessary to save the 
 ship and cargo from a common peril.' 
 
 Judge Marvin. I will second that, so as to give the oppor- 
 tunity of voting. 
 
 Amendment put. 
 
 For the amendment . . . . .1 
 
 Against it, the rest. 
 
 The clause in its original form was then put to the meeting, 
 and carried, there being only two votes against it. 
 
 The Chairman. Section seven must now be read : ' When a 
 ship shall have entered a port of refuge under such circumstances 
 that the expenses of entering the port are admissible as General 
 Average, and when she shall have sailed thence with her original 
 cargo or a substantial part of it, the corresponding expenses of 
 leaving such port shall likewise be so admitted as General Average, 
 and, whenever the cost of discharging cargo at such port is admis- 
 sible as General Average, the cost of re-loading and stowing such 
 cargo on board the said ship, together with all storage charges on 
 such cargo, shall likewise be so admitted.' It would be more con- 
 venient to put this in the form of two questions. 
 
 Mr. Baily. I have to move some amendments, for one part 
 is left rather vague. The cargo left behind at the i^ort of refuge 
 should not pay any part of the General Average provided for by 
 this section. Then I object to the word ' substantial.' 
 
 The CHAHiMAN. With reference to the word 'substantial,' I 
 may simply observe that that word ' substantial ' is only calculated 
 to raise questions where no questions need be raised. The ' cargo' 
 means a substantial part. The word ' substantial ' nuiy raise many 
 legal questions.
 
 170 MARITIME LEGISLATION. 
 
 Dr. Rahcsex. I will second the motion that the word ' sub- 
 stantial ' shall be struck out. [Agreed to.] 
 
 The Chairman. Will you give me the words in writing that 
 you propose to have added ? 
 
 Mr. Baily, ' As regards the ship, the cargo re-shipped, and the 
 freight on it.' 
 
 Judge Marvin. I second the adoption of the amendment. 
 
 Dr. Rahusen. Jettisoned goods must then contribute to it. 
 
 !Mr. Baily. Yes, I think so, but I do not think it is necessary 
 to say so. Jettisoned goods are included in every adjustment. 
 
 The Chairman. It is very intelligible. 
 
 Dr. Rahusen. I do not see any difference between the cargo 
 re-shipped and that to be sold in the port of refuge ; the one part 
 ought not to be left out of the General Average, but it ought all 
 to be treated on the same footing ; the one should not come into a 
 better position than the other. Again, in exempting any part of 
 the cargo, you make the other part of the cargo the sufferer, as it 
 has to pay a higher percentage vipon the General Average. 
 
 Mr. Baily. The voyage is at an end as to that part. 
 
 Dr. Rahusen. Cargo sold is, then, in a better position than 
 that which is re-shipped. 
 
 The Chairman. This is a proper and judicious amendment. 
 The effect of it is to limit the clause very much more than as it 
 stood before. Mr. Baily proposes to limit the contributions towards 
 the reloading and outward expenses, so as to bring in as contribu- 
 tories only the ship, the cargo re-shipped, and the freight on it ; 
 that is to say, he would exclude, from contribution towards such 
 expenses, the cargo which may be sold at the port of refuge. This 
 in at ])resent the question for your consideration. 
 
 \)\i. \\'i;i;iiii;i.\i coiisidci-cd lliat Mr. Baily 's amendment raised 
 a very important question of principle. In his opinion, Mr. Baily 's 
 view was o]iposed to the true principle of adjusting. When cargo 
 is sold at a port of refuge, on account of its having been damaged, 
 the shijiOwniT is ali-cady a loser, through no fault of" his ; because 
 he docH not — at any I'atc, doi-s nol according to most laws — obtain 
 his full freight. Mr. JJaily, acting on th(> I'lnglish law, would 
 make hiin receive no freight at all ; very luajiy hiws gi\-e him oidy
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 171 
 
 a pro rata freight. As the shipowner is thus a loser, by the sale 
 of the cargo for the sole benefit of the owner of the cargo, it did 
 not seem reasonable to make him also a loser by excepting the 
 cargo thus sold from paying its share of the outward expenses. 
 The duty of the captain was merely to carry the goods from one 
 place to another. He had nothing to do with whether they were 
 damaged, or with what might be the best way of disposing of it. 
 He ought not, theu, to be in this way a loser by the sale of it. 
 
 Mr. Hopkins thouglit all Dr. Wertheim's objections might be 
 answered, but that the amendment was wrong in other respects. 
 
 Mr. Baily. I brought this forward merely as a verbal altera- 
 tion, believing that the principle was admitted. If goods are left 
 at a port of refuge the voyage is at an end as regards them. The 
 goods sold on the spot are no further interested at all. 
 
 Dr. Rahusen. Mr. Baily 's amendment, I must say, is very 
 objectionable in principle. It leads directly to this unfairness, 
 that the remaining part of the cargo is made to bear a much 
 heavier portion of the outward charges from the mere fact of the 
 sale of the sea-damaged part. This sale augments the General 
 Average very much as to the rest, which must lead to injustice. 
 
 Dr. Wektheim. If a part of any cargo is sold at a port of 
 refuge, is that cargo to be on that account exempted from paying 
 its share of the General Average occasioned by the putting into 
 port ? If there is any loss of masts, spars and stays, and so on, is 
 the owner of the cargo left at the port of refuge to bear no part 
 of that ? 
 
 Mr. Baily. Of losses sustained before arrival at the port of 
 refuge ; but not after. 
 
 Dr. Wertheim. You are not consistent there, I think. 
 
 The Chairman. The question is whether, if the expenses of 
 entering a port of refuge are already by law the subject of Genei-al 
 Average, the expenses of leaving the port shall be the subject of 
 General Average also, and whether, after the expenses of entering 
 the port have been incurred, where a part of the cargo is left behind, 
 and then there are after-expenses in leaving the port of refuge, 
 that cargo is subject to General Average as to those expenses ; 
 that is very intelligible ; but that does not apply to your case. If
 
 172 MARITIME LEGISLATION. 
 
 the masts, &c., are cut away in leaving the port, Mr. Baily says 
 that any goods left behind at that port ought not to be subject to 
 General Average, because the voyage is ended as to them. 
 
 Dk. Hahcsex. In England and on the Continent the practice 
 differs. 
 
 Mk. Baily. When a ship goes into port a second time, owing 
 to damage sustained after she left the port of refuge, would you 
 say that any part of that second General Average should be paid by 
 the cargo left behind ? 
 
 Dr. Rahusen. That would not be right. There is a great 
 diflference between a case where the whole cargo is to be sold and 
 a case where only a part is to be sold. Where only part is sold 
 the ship is bound to proceed to her port of destination. It is the 
 uniform practice on the Continent to deal with it all under the 
 same head, which is quite contrary to Mr. Baily 's proposition : it 
 is a new principle, and I should not like others to be taken by 
 surprise. 
 
 The Chairman. I speak with submission to you. I do not 
 understand that in any country, in Europe or in America, if 
 a ship puts into a port of refuge and discharges and then leaves 
 the port of refuge, and in so doing incurs certain expenses, that 
 any part of the cargo left behind contributes to that part of the 
 expenses. 
 
 Mr. Engels. The goods sold contribute but not those lett 
 behind. 
 
 .Mr. IjAILY. If any part of the cargo is so damaged that it is 
 necessarily sold, it do^-s not in this country pay any subsequent 
 General Average. 
 
 Di{. liAilU.SEX. Tliat seems to form a very intricate question. 
 
 Mk. I!ailv. I refer to goods left behind because they cannot 
 be curi-ii-d on owing to their state; as, for instance, because they 
 are heated owing to sea-damuge, 
 
 Mr. Cruse.mann. I woukl propose to make some alteration to 
 that effect ; because, in some cases when goods are sold, as, for 
 ('Xaiiijde, when tiieyai'e sold (o raise ("luids, (here is jjie (juestion uf 
 the making g(j(xl its markel \alue at the port ol" dest iiialion, and 
 other matters.
 
 INTERN ATTONAL LAW OF GENERAL AVERAGE. 173 
 
 Mr. Baily. I will put it in any more definite form that will 
 meet the case. 
 
 Mr. Lowndes. There is a very great principle involved in this 
 discussion. The real question is this : do you allow the outward 
 port charges because they are the consequences of going in, or for 
 some other reason ? If yon allow them on the former ground, 
 then, in whatever manner you charge the inward port charges, in 
 the same manner you should charge the outward. On this view 
 there would be no absolute inconsistency in making the goods sold 
 at the port of refuge contribute towards the outward port charges. 
 This is, in fact, the view commonly held on the Continent, as appeared 
 in our discussion by pamphlets. But others, who dissent from this 
 view, hold that the outward charges should be admitted into General 
 Average on a perfectly distinct ground, viz. that they are in- 
 curred for the purpose of continuing the voyage, and are therefore 
 in themselves — not looking back to any previous act of which 
 they may be considered as the consequences — incurred for the 
 common benefit. On this view, it is clear that they are only 
 incurred for the benefit of that portion w^liich leaves the port in 
 company with the ship. The portion left behind does not share 
 this benefit, and therefore should not contribute. The present dis- 
 cussion will oblige us to select between these two views. My own 
 opinion is, for the reasons given in the pamphlets, that both views 
 are erroneous. The draft Bill was framed simply in conformity 
 with the opinion of the majority of the members. Perhaps Mr. 
 Bradford will inform us what is the practice in America ; whether 
 cargo sold on account of sea-damage contributes to outward port 
 charges or not. 
 
 The Chairman. If goods are sold merely because they are of a 
 perishable nature, and it is expedient to determine the voyage, and 
 the goods derive no subsequent benefit from the voyage, it seems 
 clear that they should not contribute towards the expenses out- 
 wards. 
 
 Mr. Baily. Would it meet Mr. Crusemann's objections to say, 
 ' As regards the ship, the property which leaves the port of refuge 
 in her, and the pi'operty which is allowed in General Average sub-
 
 174 MATMTIME LEGISLATION. 
 
 ject to events happening subsequently to tlie vessel's leaving tlie 
 port of refuge ? ' 
 
 Dr. Kahusex. You will agi-ee that by selling one part of the 
 cargo you augment the expenses of the other part. 
 
 Mr. Baily. The cargo that is left at the port of refuge has 
 nothing whatever to do with subsequent accidents. Test it by the 
 case of a sale of the whole of the cargo. 
 
 Mr. Bradford. I was asked to speak with regard to the prac- 
 tice of America. Our law and practice is to charge the expenses, 
 so far as they benefit all property, upon that property so benefited ; 
 but if it becomes necessary to sell a portion of the cargo, if for any 
 justifiable reason a portion of the cargo is separated from the rest, 
 whenever that occurs that cargo is not liable to the General Aver- 
 age charge, but becomes liable to a special charge for anything 
 that is done for that special interest. I do not think that I can 
 state it any more precisely than that, so long as the interests are 
 bound together, so long the charges are General Average. When 
 for any justifiable reason one portion of the cargo becomes sepa- 
 rated from the other, that portion is freed from the General Aver- 
 age, and becomes liable to the special average cliarges. Therefore, 
 if a portion of the cargo is left in port for any reason, it is not 
 liable to the expenses incurred by that vessel in going out of port ; 
 it is simply liable for the expenses that had occurred before it was 
 separated from the rest of the cargo. No portion of the outward 
 port charges can be put upon that portion of the cargo remaining 
 in port. 
 
 Judge ^Marx'IN. The whole expression of this section in the 
 draft Bill, to my mind, is very far from being desirable. If the 
 whole were to be reconstructed, reconsidered, rebuilt, I think the 
 time of the meeting would be saved. 
 
 ^fR. Hatiironk. Wc cannot h<;pe that any body of men can 
 reconstruct these sections at once. 
 
 The Chairman. I think that, as we have to deal with this Bill 
 ill lli<- order in which \\i- find tlic cliiiiscs, it will In' lietter to go 
 through them as we find them this ai'tcrnoon, and if Ihe gentlemen 
 who have so much assisted us Ijy their presence will, between this 
 and the morning, draw up any amended clauses, and will prepare 
 
 I
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 175 
 
 themselves for the puqiose, we can have a fair and ample discus- 
 sion on the subject to-morrow. 
 
 Postponement put and lost. 
 
 TiiK Chairman. I will now read Mr. Baily's amendment as 
 altered : ' Except that any portion of the cargo left at such port 
 of refuge on account of its bei.ig unfit to be carried forward, shall 
 not be called on to contribute to such corresponding expenses.' 
 But we must postpone that for the moment and put the remainder 
 of the clause. 
 
 The remainder of tlie clause was then can-ied unanimously. 
 
 The Chairman. I will now put Mr. Baily's amendment. 
 
 Amendment put. 
 
 For the amendment . . . . .10 
 Against it ....... 5 
 
 Amendment carried. 
 
 Mr, Delehaye. I propose the following amendment, that the 
 words, ' and consignees' commission,' be added after ' all storage 
 charges on such cargo.' 
 
 Mr. Baily. Agents' commissions are allowed as General 
 Average in England, in most cases ; but there may be cases where 
 the commission ought not to be admitted in General Average. 
 
 Dr. Kahusen. I propose an amendment that, to the words ' on 
 board the said ship,' be added, ' or on board such ship as may 
 have been chartered by the captain, for his own account, in case 
 the original ship shall have been condemned.' 
 
 Judge Marvin. I second it, 
 
 Mr. Baily. If you put this charge to General Average, you 
 must put the forwarding freight to General Average also. In some 
 countries they do so, but is it reasonable ? 
 
 Mr. Van Peborgh, What is to be done as to fire insurance on 
 the cargo whilst in the warehouse ? 
 
 The CHAiRMiVN, That is a charge on the cargo. 
 
 Mr. Van Peborgh. It will be j ust to put it as a General Average 
 charge. 
 
 The Chairman. If it belong to the cargo and ship. 
 
 Mr. Baily. Excuse me ; it does not follow that all losses result- 
 ing from accidents which follow a General Average act are to be
 
 176 MAT^ITIME LEGISLATION. 
 
 allowed. A loss by fire in a warehouse is not allowable in General 
 Average, although the goods may be in warehouse by a General 
 Averae^e act ; therefore the fire assurance should not be allowed in 
 General Average. 
 
 Amendments withdrawn. 
 
 The Chairman. We now come to the eighth section : ' When a 
 ship shall have entered a port of refuge under the circumstances 
 defined in section seven, the wages and cost of maintenance of the 
 master and mariners, from the time of entering such port until the 
 ship shall have been made ready to proceed upon her voyage, shall, 
 subject to the provisoes undernamed, be made good as General 
 Average. Provided that, if reasonable dispatch be not used in re- 
 pairing or otherwise getting the vessel to sea, no allowance for 
 wages or maintenance shall be made in respect of the time so im- 
 properly expended. Provided, also, that no allowance shall be 
 made for wages or maintenance as above, in case the ship shall be 
 condemned at such port as irreparable or not worth repairing, or in 
 case for any other lawful cause the cargo, or a substantial part ot 
 it, shall not be reladen on board such ship for the purpose of further 
 transport.' 
 
 Mr. Rathbone. I think that wages should not be allowed, 
 I move the insertion of the word ' not,' making it ' shall not be 
 allowed as General Average.' 
 
 Amendment not seconded. 
 
 Amendment lost. 
 
 The Chairmax. Is there any objection that clause eight should 
 stand ? 
 
 ^\ii. Paii.y. The general feeling in this country as to wages, 
 &c. is tliiit tlicy should not be allowed at all on any principle ; but 
 I shall vote for tlu* resolution, because shipowners in this country 
 feel the exclusion f)f tluMn to be a great gi'ievance, and the exclusion 
 f>(' t hem is conti-ary \() most of the continental codes. I think, there- 
 fore, we ouglit 1o concede 1o that extent. Underwriters argue 
 that, if you allow the wages and ])rovisions, you hold out an induce- 
 ment to the shipowner to renuiin in port unneressai-ily. l^ut is it 
 likely that any sliipowner will nllow his ciiphiin io reiiiiiin in port 
 rierelv foi" tlie s;ike ofgrtlin^' Icick the w;iges which he sjtends by
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 177 
 
 remainiii*)[ in ])ort, when by so doing lio loses tlie use of his slii|) 
 during such unnecessary delay ? The principle whicli excludes 
 them is, I think, this. Everything allowed in General Average 
 should be caused by a General Average act. Now, the expenditure 
 is not caused in any way by a General Average act, but by the 
 contracts with the crew. It is an expense incident to the General 
 Average act, but not caused by the General Average act, and on 
 that ground I exclude them on principle; but I shall vote for the 
 proposition on the ground of expediency. 
 
 Clause carried unanimously. 
 
 The Chairman. I think there is no substantial difference of 
 oiainion on this clause. What Mr. Baily has now said suggests to 
 me this consideration. Whenever this Bill shall come before the 
 House of Con\mons, this clause will in all probability be met with 
 a very serious opposition. I would recommend to Mr. Baily and 
 the other gentlemen that, when the bill shall come before the 
 House of Commons, they should append to it such suggestions to 
 the member of that House who brings in the Bill as may be thought 
 necessary. That member could hardly be expected to make him- 
 self master of all the most important considerations of this question 
 or to understand it so well as Mr. Baily and others here who have 
 dedicated their lives almost to the subject. You should, therefore, 
 prepare what the lawyers call a brief, or series of arguments, for 
 the member who is to introduce the Bill to the House. We now 
 come to the provisoes. The first proviso is almost the common 
 law at present ; therefore we may let this proviso stand. 
 
 The first proviso was carried unanimously. 
 
 On the second proviso being brought forward, 
 
 Mr. Crusemann proposed, as an amendment, that in place of 
 the second proviso in the draft Bill, the following proviso should be 
 substituted : ' Provided also that in case the ship shall be con- 
 demned at such port as irreparable, or not worth repairing, no 
 allowance shall be made for wages and maintenance beyond the 
 date of condemnation ; and no allowance shall be made in case, for 
 any lawful cause, the cargo, or a substantial part of it, shall not be 
 reladen on board such ship for the purpose of further transport.' 
 
 Dr. Franck seconded that amendment.
 
 178 MARITIME LEGISLATION. 
 
 Mr. Lowndes was opposed to the amendment. It appeared to 
 him that, whatever might be the case when a ship went into port 
 to repair damage and then resume her voyage, it hardly admitted 
 of doubt that, when she went into port and was there condemned, 
 her only object for going in must have been to obtain physical 
 safety, and that the General Average, and consequently the 
 allowance for wages and provisions, ought not to extend beyond 
 the attainment of safety. The clause as it stood was framed as a 
 species of compromise, and he thought a stand should be made on 
 that point. 
 
 Mr. Bradford. On the subject of the provisoes, I agree with 
 Mr, Crusemann. I think that wages and provisions should be 
 allowed until there is a separation of the interest in the voyage. 
 I do not think it will be right to say, when you go into port and 
 discharge cargo, that because you find the ship damaged so much 
 that she cannot be repaired, therefore no wages or provisions shall 
 be allowed. I suppose gentlemen all agree that if a vessel goes 
 into port and the cargo is discharged, the discharge of that cargo is 
 a General Average charge ? 
 
 ]\Ih. Baily. No. 
 
 The Chairman. It has not been so considered in England ; it 
 might have been elsewhere. 
 
 ^Ir. Bradford. The master has no reason to suppose that the 
 voyage is to be ended. The cargo is discharged, and Avhen it is 
 taken out, it is found tliat the vessel is so much injured that she 
 cannot be repaired, except at a cost that is unreasonable. As to 
 the English law that the expense of going into port is not General 
 Average, there is the ex]3ense of pilotage and tonnage ; upon whom 
 does the expense fall ? 
 
 Mr. Bah. v. in ])i-acii<'c all the expenses of discharging the 
 cargo are put to General Average ; and if I am asked, Is that 
 right? I say, Cei'tainly not. AV^hen I became an adjuster, I found 
 the cu.stoin was to put tlic expense of discliai'u'ing in such a ease to 
 General Average; and 1 follnw tlic custom. I>iit 1 do not tlu'refore 
 think it right. It is a charge wliieli should liill either on the 
 owners of the cargo or on the shipowner. 
 
 Mk. l)l!ArF(>i{D. 1 think it o:i;jlit to be (Mneral Average on 
 ]ii iiicijih'. I s;iv t hat , so long as the ( oiniiiiinilyoC intei-esls exists,
 
 INTERXATTOXAL LAW OF GENERAL AVERAGE. 179 
 
 so long arc tlie ship, freight, and cargo bound together Ijy the con- 
 tract, and just so long any loss or any expense should be General 
 Average. When it is decided that the voyage cannot be completed, 
 then the General Average ceases— so the wages and provisions 
 ought to be considered iu General Average. 
 
 Mr. Ckusemann"s amendment was then put : — 
 
 For the amendment . . . . .10 
 
 Against it ... . ... 8 
 
 The amendment was therefore carried. 
 
 The Ciiaikmax. Although very much called for in other de- 
 partments, I will again to-mon'ow take the chair if you desire it. 
 Although the motion of the learned judge Mr. Mania has been 
 rejected, it will not prevent him from proposing any amendments 
 that he and his friends may wish. Considering that this Bill, when 
 put into a more technical and legal form, with reference to our 
 statutes, will probably be submitted next session to the Houses of 
 Parliament, we ought to be ready to give the fullest consideration 
 to any amendments any gentleman may be disposed to make. 
 
 Adjourned till to-morrow at half-past ten. 
 
 September 28, 1864. — Mr. Wendt vas called to the chair. 
 
 The minutes of the last day's proceedings were read and settled. 
 
 Mr. Lowndes. This is the proper time to move any amend- 
 ment to clause eight as it now stands, modified by the amendment 
 which was carried yesterday. 
 
 Mr. Baily. The clause as amended is, to allow wages up to 
 the date of condemnation. The objection to this amendment is 
 as follows : In the case of ships condemned at distant ports, 
 captains are afraid to act ; they hand the matter over to their 
 owners, and often there ensues a long discussion between the 
 owners and the underwriters, which involves great delay. Mr. 
 Crusemann's resolution makes the cargo contribute to the wages 
 and provisions of the crew during this delay — that is, during a 
 delay occasioned by a dispute between the owner of the ship and 
 his underwriters. Is this ^Ir. Criisemanu's intenrion? 
 Mr GRrsEMANX. Yes.
 
 130 MARITIME LEGISf.ATION. 
 
 Mr. Baily. I think the allowance of wages should stop as 
 soon as any dispute arises, otherwise it may lead to great abuses. 
 The owner of the cargo has a right to say to the captain, ' You are 
 the man dealing with me, I have nothing to do with the people in 
 a distant country. You have the estimates before you, showing 
 what it will cost to repair the ship, and you ought to be able to, 
 and must, tell me at once whether you are going to carry on my 
 caro-o or not. You are not only going to put me to all the incon- 
 venience and loss of my cargo, but also to make me pay the 
 expenses of your crew during that delay.' This resolution not 
 only entails on the owners of cargo the annoyance and loss of 
 having their goods kept at a port of refuge, but also calls upon 
 them to pay the shipowner's expenses during the delay. 
 
 Judge Marvix. This may be carried out by a little change in 
 the phraseology. Let it be provided that the wages and provisions 
 of the crew shall not be allowed in General Average beyond the 
 time when the ship is condemned or ought to be condemned upon 
 the existing practice. That, I think, takes in both ideas. 
 
 Captaix Gourley. I think ^NTr. Crusemann's clause had better 
 remain as it is. 
 
 Mr. Lo"\^■^'DES. Suppose the ship is condemned and the cargo 
 not reladen, if we apply the first half of Mr. Crusemann's clause 
 we should allow wages and provisions do\^Ti to the time of con- 
 demnation ; if we apply the last half we shall not do so. 
 
 Mr. Wendt vacated the chair, which was taken by Sir Fitzroy 
 Kelly. 
 
 ^Ii{. IjOWNDES read the amendment which had been put by 
 Mr. Crusemann and carried. 
 
 The Chairman. The object is to bring the Average down to 
 the time the ship is condemned. May we now consider the eighth 
 section with all its amendments as complete? 
 
 ^fR. Baily. I have to move the omission of the words, ' and 
 no allowance shall be made in case,' to the end of the paragraph, 
 because Mr. Crusemann's clause is inconsistent. If you take the 
 first part of fhe clause you gi^■e flie compensation uji to the time of 
 condemnation ; if you take the last part you do not give any. 
 
 'I'liK C'lrAiKMAN. The clause has been adoj)<ed with a qnalifica-
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 181 
 
 tion whicli it is now ])roi)osetl to omit. ]Mr. Baily proposes to 
 omit fiTmi ' jind no allowance,' &c. to the word ' transport.' 
 
 Mr. Baily. I also propose to add to the middle of the clause, 
 after the words ' date of condemnation,' ' or the time when the 
 ship ought to have been condemned on the facts of the case.' 
 
 Mr. Lowndes seconded the amendment. 
 
 Mr. Gourley. That nullifies J\Ir. Crusemann's proposition 
 altogether, and I hope he will not consent to it. 
 
 Mr. Rath hone. 1 trust that that amendment may be carried. 
 The wages and provisions of the crew might be going on for a 
 whole year perhaps, during the dependence of a question arising 
 with which the owners of the cargo would have nothing whatever 
 to do. It cannot be right to charge the cargo therewith in General 
 Average. 
 
 The amendment was put and carried. 
 
 ;Mr. Lowndes. I have now to move that after the words • beyond 
 the date of,' be inserted ' discharge of the cargo,' in place of the 
 words ' condemnation of the ship or the time when the ship ought 
 to have been condemned on the facts of the case.' I believe that 
 this would be a more thorough way of obtaining that which by the 
 votes, as given, it appears that w^e all have in view. I cannot see 
 any ground for making the cargo contribute to General Average 
 for the wages and provisions of the crew after the time when the 
 cargo has been discharged : from that point the cargo ceases to be 
 interested in any way in the detention, or in what may take place 
 as to the disposal, or in the proceeds, of the ship : the connection 
 between the ship and cargo is at that point terminated. What I 
 fear is that, if we should frame a Bill w^hich can be attacked on 
 general principles on one important point, we may run the risk of 
 losing the whole measure. It is easy to frame a Bill, but w^e must 
 have one which will command the approval of jurists and persons 
 acquainted with the subject in different countries. 
 
 Mr. Rathbone. I beg to second that amendment. 
 
 Mr. Wendt. Is the whole or any part of the principle of the 
 clause involved in this ? 
 
 Mr. Rathbone. It is a mere detail. 
 
 The Chairman. It relates only to the maintenance of the crew
 
 182 MARITIME LEGISLATION. 
 
 in the port of refuge. The question is whether that is or is not to 
 be allowed beyond the time of the discharge of the cargo ; that is 
 to say, if it is to be made the subject of General Average, whether 
 it shall cease from the time of the discharge of the cargo. 
 
 Mr. Crusemanx. I think that the wages and maintenance 
 ought to be paid up to the same time as the storage and other ex- 
 penses of the cargo ; the storage and other expenses of the cargo 
 will be charged in General Average up to the time of the condemna- 
 tion of the ship, and it is therefore projier that the shipowner 
 should be placed in as good a position as the owner of the cargo. 
 
 The Chairman. The whole question is between the discharge of 
 the cargo on the one hand, and the condemnation of the ship on the 
 other. 
 
 Dr. Rahusen. The proposal of Mr. Lowndes is very objection- 
 able. By that amendment, from the moment the cargo was 
 discharged, until the day of condemnation, the wages and main- 
 tenance of the crew would not fall upon General Average, but 
 upon the shipowner, for he could not recover them from his 
 underwriters as Particular Average. That would be contrary to 
 all the principles of law that I ever heard of, and will be thought 
 very unjust. After the date of the condemnation of the ship you 
 may leave it for the shipowner alone to pay all expenses, because 
 he then may pay off the crew, but not till then. 
 
 ;Mr, Baily. If a vessel is condemned at a port of refuge, I hold 
 that the cargo is not liable for any of this General Average. 
 
 The Chairman. Will any gentleman point out the difference 
 between the period of condemnation of a ship and the period of 
 the discharge of the cargo: that really is the point, it is a point 
 of time only : whether these wages, &c. are to be allowed down to 
 the time of coiulciiiiial ion or to the time of discharge of tlie cargo. 
 Let us then consider what that time is, and why the rule should 
 be applied to the one time rather than to the other. 
 
 Mr. JJaiev. We are so thoroughly acquainted willi llie dis- 
 tinction lli;il 1 will onl\ s;i\' a lew words upon il. ()iie of the lii'st 
 steps is to discharge the cargo; alter thai, I he ship is exaniined 
 and sometimes is found to be in such a del'eeli\(' ecjndil ion, that 
 tlie ca])tain, if he were the owner, \v(jui(l say, ' i will not re])air the 
 ><hip.' Not I)e'ng the owner, he writes to llie owner ami a^ks liiiii
 
 IXTEi; NATIONAL LAW OF GENKI!AL AVERAGE. 1S3 
 
 what: hv Is to do ; t he ownor goes to the underwriters, and discus- 
 sions ensue tliat sometimes occupy montlis. A considerable time 
 in consequence elapses before the captain receives his instructions, 
 and during the whole of this time the cargo is kept at the port 
 of refuge. Mr. Crusemann says the General Average should not 
 cease until the ship is condemned, but I prefer Mr, Lowndes's 
 amendment. 
 
 Dk. Wertiieim. Mr. Lowndes's amendment is quite contrary 
 to the principle of law as to General Average, which is that, be- 
 tween the ship, the cargo, and the freight, the confraternity of 
 interest ceases when the ship is condemned : up to that time 
 General Average ought to rule ; after that time nothing ought to 
 be allowed. AVhen a ship is condemned, all tlie expenses made by 
 and on behalf of the connnon benefit and interest ought to be 
 paid for in General Average by all the parties interested in them. 
 Mr. Baily and Mr. Lowndes are of opinion, one one way and one 
 another. The only principle upon which to act I say is this : so 
 long as the confraternity exists, and no longer, all disbursements 
 made on behalf of the parties should be allowed. How otherwise 
 can we say when it shall cease so as to render justice to both, and 
 who shall tell the moment of the ceasing of the confraternity ? 
 The only definite point of separation is the date of condemnation. 
 Then there is the warehouse rent, &c. to be considered. 
 
 Mr. Baily. I should not put the rent to General Average. I 
 repudiate that principle altogether. 
 
 Dr. AVerthelm. It is said in the seventh section that when, in 
 order to repair the damage done to the vessel, the cargo is dis- 
 charged, the warehouse rent should be admitted into General 
 Average; yet now we are told by Mr. Baily that, if the ship 
 happens to be not worth repairing, the cargo, and not the tieneral 
 Average, ought to bear this charge. This distinction cannot be 
 founded on any principle ; the question is treated as a mere matter 
 of expediency on the part of the underwriters. This should not 
 be. I am, in this as in all other cases, strongly opposed to the 
 replacing of principle by expediency, and as a lawyer especially so. 
 'J'his expediency can be twisted any way. 
 
 ^Ir. Engels. I quite agree with Mr. Baily. AVhen does this 
 confraternity between ship and cargo cease ? That is the whole
 
 184 MARITIME LEGISLATION. 
 
 question. I agree with 'Mv. Baily thnt, from the moment that the 
 cargo is discharged, the allowance in General Average ought to 
 cease. You cannot certainly make the cargo pay the expenses of 
 the wages and maintenance of the crew until a reply can be got 
 from the OAvners, a proceeding which might extend over four or 
 five months ; the captain ought to know what he is to do. 
 
 Mr. Crusemanx. That the confraternity ceases at the very 
 moment the cargo is discharged is not the right view of the case. 
 I think it is not so ; it may cease for a time, but it does not cease 
 ultimately and positively until the ship is condemned ; and so long 
 as it has not definitely ceased I should say all expenses must be 
 borne by all interested. The date of condemnation can be the 
 only time when the interests are separated. 
 
 Dr. Franck. I should wish to move as follows : That from 
 the words ' or in case ' the clause be altered thus : ' but in case 
 for any other lawful cause the cargo, or a substantial part of it, 
 shall not be reladen on board such ship for purpose of further 
 transport, no allowance shall be made for wages or maintenance of 
 the crew.' I beg only to observe that, as soon as the cargo is left 
 behind in the port of refuge, from any reason, the port of refuge 
 becomes the port of destination of the different interests, i.e. the 
 ship, the freight and the cargo, and as in the port of destination 
 the charges in question are not General Average, so they are not in 
 the port of refuge which has become the port of destination. It 
 is impossible not to see at once that the port of refuge does in such 
 a case become the ])ort of destination. 
 
 Mr. Crusemann. Up to the time of the condemnation nobody 
 has a riglit to dispose of the cargo. The shipper cannot take it 
 away, the captain is not excused from keeping charge of it for the 
 puqjose of transit. The confraternit}^ of intei-ests therefore does 
 not cease till after tlif condemnation. 
 
 Mr. Low.ndes. W iili regard to tlie ai-gunient of ^Ir. Crusemann 
 tliere is a case that constantly happens, to which it would not 
 apply at all. As soon as the cai'go lias been discharged, it is at 
 once seen that the ship is sn damaged that she cannot be re]iaired 
 on the spot, or at any ])lace in I lie neighbourhood, so as to con\ey 
 the cargo forward ; the cargo is then at once sent forward in other 
 vessels; Ih^n comes the (piestion whether or not it will be ]iossible
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 1«5 
 
 by temporary repair (o l)i-iug the ship to some place where slie can 
 be repaired more cheaply — to this country or some other port. I 
 assume that any port at which the ship could be repaired would be 
 so distant that the voyage would be completely at an end, and 
 there would be no obligation to go back to fetch the cargo. In 
 the case whicli 1 have supposed — a case which has more than once 
 actually occurred within my knowledge — the question, whether the 
 cargo should ever be carried on in the ship, or not, was determined 
 at the very moment when the carg-o was discharw'd. The subse- 
 quent fate of that ship was a matter of the most absolute indiffer- 
 ence to the cargo. Surely in such a case as that it would seem 
 unreasonable to make the cargo contribute to the expenses during 
 the time that it had nothing to do with the ship. It is no doubt 
 a theory which can be defended, that there is a community of 
 interests continuing so long as there is a reasonable prospect of 
 carrying the ship and cargo on together ; but no one can say that 
 the community should continue beyond that time. It is simply 
 when they are engaged in one common enterprise that the commu- 
 nity exists, and when that enterprise ceases the community ceases 
 with it. Then conies the question, how are we to determine when 
 that moment has arrived ? In the case which I just put, there 
 was no difficulty ; the moment was determined as soon as the 
 cargo was landed. In other cases, the state of the ship and the 
 consequent impossil)ility of repairing may not be known until 
 a later period. Still this impossibility existed from the first ; 
 and, when once it is ascertained, we should treat the matter as 
 if it had been known from the first. All these matters are treated 
 iqion the basis of the ultimate result. Whenever it was known 
 it was a fact that the ship was a total loss, or was unfit to complete 
 the voyage, from the moment when she received the damage. This 
 is the way in which we deal with all questions of insurance. Sup- 
 pose the ship were insured by a time policy which terminated on 
 January l,and the ship received her damage in December, but was 
 not surveyed and found irreparable until February, would you say 
 that the underwriters were not liable for the total loss? To apply 
 that to the present question, the community of interest between 
 ship and cargo, which results from their being liable to a common 
 risk, exists no longer than until both are in safety. That com-
 
 18G MARITIME LEGISLATION. 
 
 munity of interests wliich results from the contract to carry the 
 cargo to its destination, exists no longer than until it has become 
 impossible to carry the cargo on ; and this impossibility depends, 
 not on the time when the extent of damage is known, but on 
 the time when such damage takes place. I confess that I do re- 
 gard with very great regret, and very great fears for the success 
 of our undertaking, any alteration of this section, even in the 
 j3rovisoes. I feel that the prospect of carrying the Bill in this 
 country is sensibly diminished. The section, with the provisoes, 
 was, by those who framed it, intended as a species of compromise. 
 By far the largest concessions have been made to the views of 
 foreign countries ; for, every English member believes the allowance 
 of wages to be an erroneous course ; and I regret to see the majority 
 here moving step by step further in this direction. If gentlemen 
 will press their objections to the full extent, the result will be, that 
 the difficulties we shall have in this country will, I fear, be very 
 much augmented. I regret what has already been done by carry- 
 ing it on to this extent, and I shall indeed regret if we are induced 
 to go still further. 
 
 Mr. Crusemams". We cannot vote against our convictions. 
 
 Mr. Engels. We think we have made concessions in every 
 possible way. 
 
 Dr. Wertheim. Mr. Lowndes advocates the matter on the part 
 of the underwriters ; the concessions are to them. If the principle 
 of allowing wages and provisions is correct, it should be carried 
 out consistently. You should go all the way, not go half a mile, 
 and thi'u stop and hesitate. We must have a rule that we can 
 act on. When are the wages, &c. to be paid, and when are they 
 to cease ? We must know as if we were consulting' our watch, or 
 else we shall not know how we stand. 
 
 Ml;. Lowndes. I have said that I dissented ciitii'dy from the 
 princii^le. Th(! pamphlets and correspondence wliieli show what 
 our views arc, the meeting are in possession of. 
 
 Dr. Rahusen. Every nation has its own way of considering 
 these questions. I woukl suggest llial llie lir>t rlau^eofthis section 
 remain, and tlieii we should leave onl altou'cthcr the provisoes and 
 ameiiihiHiil.^ wliich have S[)ruiig oiil ol'thciii; thai we should pass 
 the (ir.>i |»;ii't (,i" tlie section onlv.
 
 INTEKNATIONAL LAW OF GENERAL AVERAGE. 187 
 
 The Chairman. Tliis may Ix' put as a separate motion after- 
 wards. I must iirst take the votes on Mr. Lowndes's amend- 
 ment. 
 
 Question put. 
 
 For 5 
 
 Against ........ 8 
 
 Rejected. 
 
 The Chairman. Dr. lialiusen nuiy now make any remarks he 
 thinks proper. 
 
 Dr. Rahusen withdrew tlie motion to withdraw tlie provisoes. 
 
 Mr. Baily. I am sorry to hear tliat, for I must, in that case, 
 move it myself. 
 
 The Chairman. It will then stand thus : ' It is now moved Ly 
 ]\Ir. Baily that the provisoes be withdrawn, and that the clause 
 shall remain.' 
 
 Mr. Engels. I second it, because I think we ought to make 
 concessions to English usages. 
 
 Mr. Wendt. I am only afraid, if we pursue this course, we 
 shall not be doing our work properly, or as we were sent to do it. 
 We shall only have half-dealt with the question, for we shall leave 
 it undetermined what is to be done in cases where the shij) is not 
 repaired. 
 
 Mr. Lowndes. In answer to Mr. Wendt, the real question is 
 this : Will you have uniformity in all respects ? or will you, by 
 endangering the measure, run the risk of not obtaining uniformity 
 at all ? Let us not despise the work because it may be in some 
 respects imperfect. If we can carry a measure which will produce 
 uniformity on the leading points, the very fact of our doing so will 
 tend indirectly to promote uniformity in the details which Ave are 
 now compelled to leave open. 
 
 Mr. Crusemann. I only wish to say that those two provisoes 
 made by the committee who drew up the Bill were cei-tainly thought 
 important enough to be brought into the Bill. I am sorry now to 
 hear the contrary. 
 
 Mr. Lowndes, They were thought desirable as they stoo 
 originally, but not as they stand now, when they require us to do 
 the direct contrary. 
 
 Mr. Bah.y. 1 would jxHut out to the gentlemen present that
 
 188 MARITIME LEGISLATION. 
 
 the essential part, namely, that affecting putting into j ort, which 
 is an everyday occurrence, has been carried in favour of foreign 
 views, and what we are considering now affects cases of condemna- 
 tion only, cases which are of comparatively rare occurrence. We 
 propose to leave it an open question, as you will damage the Bill by 
 passing these provisoes. 
 
 Mr. We:sdt. It is a rare case, and yet Mr. Baily lays great 
 stress upon it. 
 
 Mr. Baily. It is the last straw that breaks the camel's back. 
 
 Mr. Bradford. After the remarks of Mr. Baily I think we had 
 better concede the point. I think the principle of allowing wages 
 and provisions is very clear. The expenses of wages and provisions, 
 like all other expenses, should continue just so long as the contract 
 continues, or rather until it is broken up. It is not broken up, 
 in my judgment, until the facts are ascertained. When the facts 
 are ascertained, and the interests are not again to be united, then 
 there is a cessation of the General Average charges. At the same 
 time, if our English friends think that the success of this measure 
 is in a gi-eat degree dependent on this article, I would concede it, 
 as w^e have already settled the question of going into port. I would 
 let the other go, because the object is to come to something 
 universal ; although it is contrary to every decision of which I am 
 aware in the Courts of America. 
 
 ^[r. Crisemanx. After the remarks I have heard I concede it 
 also. 
 
 ]\[otion yiut and carried without a division. 
 
 Judge Marvin proposed the following amendment : ' To strike 
 out the wliole of the seventh and eighth sections,' and substitute 
 the following : ' If, on account of the damage suffered by the ship 
 in the course of the voyage. wIicIIkm" of a Particular or (ieneral 
 Average nature, the sickness or mortality of the crew, the derange- 
 ment of the .stowage of the cargo, or other the like accidents of the 
 sea, it becomes prudent and judicious in tlir master to deviate from 
 the course of the voyage mid go Into ;i poii of rt'Tnge, the expenses 
 of entering sucli port, the ]iort charges, the unloading of the cargo, 
 the warehouse rent or sloriige thereon, the ex]ienses of reloading 
 the cargo on Itoin-d, I lie wliaj-fiige or dockage of the ship while un-
 
 INTERNATIONAL LAW OF GENETLVL AVERAGE. ]80 
 
 lading and reloading, the wages and jn-ovisions of Ihc crew, from 
 the time that the ship sliall bear up to enter sucli port of refuge 
 until the time when the ship can again be got ready to resume her 
 voyage, the expenses of leaving the port, and other incidental ex- 
 penses necessarily incurred l)y Ihe nuister for the common benefit, 
 shall all be made good in General Average, in all cases in which 
 the master shall resume and prosecute the voyage with the cargo 
 on board. In case the voyage shall be abandoned in such port of 
 refuge, tlu^ interests shall be deemed to be dissociated by such 
 abandonment, and the General Average expenses shall cease 
 thereon, and each interest shall thereafter bear its own expenses.' 
 He objected against the seventh section as it stood, that it did nob, 
 in its first clause, at all specify what were tlu' circumstances under 
 which the expenses of entering a port of refuge should be admitted 
 in General Average, and yet made all the subsequent clauses de- 
 pendent for their operation upon this first clause ; so that the 
 section started with uncertainty and reasoned all through with 
 uncertainty. He wished to do that which the clause as it stood 
 had not done, viz. : to define the leading principle from which all 
 was to follow. There were on this subject two principles between 
 which they had to choose. By the law of Spain, and ])erhaps of 
 some other countries, the mode of treating these expenses was 
 dependent on whether the original cause which lead to the bearing 
 up for a port was itself an accident or a sacrifice made for the 
 common good. If the ship bore up because the masts had been 
 cut away for the common safety, then all the expenses of going 
 into and coming out of the port, and the crew's wages during her 
 stay there, were treated as General Average. If, on the other 
 hand, the master bore up for a port because the masts had been 
 carried away by accident, that is, by Particular Average damage, 
 then all these expenses incidental to the bearing up were treated 
 as Particular Average. This was one intelligible principle ; but it 
 was not the principle adopted in England, France, Holland, the 
 United States, and the great majority of maritime communities of 
 the world. The principle most generally held was, that, whether 
 the original cause of the damage were sacrifice or accident, so long 
 as the putting into port was properh' resorted to for the common
 
 ]90 MARITIME LEGISLATION. 
 
 good, under a necessity arising during the voyage, the consequent 
 expenses were to be treated as General Average. That was evi- 
 dently the principle intended to be embodied in the Bill, and he 
 regretted that this intention had not been expressed more clearly. 
 Brevity had been aimed at in the draft, at the expense of per- 
 spicuity. He had provided for all that in his amendment. It 
 mio-ht be difficult to define all the possible cases ; questions might 
 be raised, for example, if the putting in were unnecessary, or if 
 the ship were not seaworthy at starting; but so far as the thing 
 could safely be defined, he thought he had done so. With regard 
 to the latter portions of his amendment, it would be readily un- 
 derstood. He thought that the interests of ships, freight, and 
 cargo might upon principle be considered as associated together — 
 as being in a condition of ' confraternity ' (which was a good 
 phrase, though not often used in that sense by lawyers) up to the 
 time when the master abandoned the voyage. The learned Judge 
 then entered upon a comprehensive view of the principles of 
 General Average, with especial reference to the question which 
 had been much discussed in the pamphlets — whether the ' common 
 safety ' or the ' common benefit ' were the true test of General 
 Average. He held that both these conflicting theories might be 
 reconciled by one more comprehensive. The ' common safety ' 
 theory seemed to be the better adapted to the case of sacrifices, 
 such as jettisons or the cutting away of masts ; but when it was 
 a question of expenditures, as in the present cape, it was 
 necessary to resort to the more extensive theory of ' common 
 benefit.' 
 
 The amendment was seconded by Dr. Wertheim, and put to 
 the meeting. 
 
 For tlie aniciuliiicut ..... 5 
 Against it . . . . . . .10 
 
 Tlic aiufndmont was therefore negatived. 
 
 'I'iikCjiaikman tlien read the ninth section, \\z. : ' Daniagcdone 
 to cargo in tlie act of discharging il ;il ;i poi'l of rcCiigf sliall not 
 Ix! admissible as General Average in case such cargo sliall have 
 Ijeen discharged at tlie place and in \hr manner cusloniai-y at that 
 ])ort with ships not in dislress.'
 
 INTKRXATIUXAL LAW OF GENERAL AVERAGE. 191 
 
 Mr. 11\ily iii()V('(1 the omission of the words 'in the act of,' 
 and substitute the word ' by ' before tlio word ' discharging'.' 
 
 This was agreed to unanimously. 
 
 Mk. Delehayk thouglit that if the cargo was discharged for 
 the common good, and was damaged in consequence, such damage 
 shouhl be treated as a sacrifice. He wished for some explanations 
 on this head ; and particularly, why insert the phrase ' in the 
 manner customary at that port ' ? 
 
 Mr. Baily. I will explain to you why it is worded in this way. 
 I am one of those who hold that damage done by a forced discharge 
 of cargo at a port of refuge is General Average in principle ; but 
 the allowance of it opens the door to so much fraud and injustice 
 that I, and many others who thirdc that it ought to be admitted in 
 principle, have, on the ground of expediencv, agreed to exclude it. 
 We do not, however, think that this practical objection applies to 
 the discharge of vessels on shore and rocks or sandbanks ; or to 
 any discharge in a manner unusual at a port of refuge ; and, 
 therefore, we limit the exclusion to the case of an ordinary forced 
 discharge at a port of refuge. 
 
 The clause was then put and carried, only one vote being given 
 against it. 
 
 The Chairman. We now come to the tenth clause. I think it 
 will be more convenient to read the first part of the first clause of 
 the section first : ' The contribution to a General Average shall be 
 made upon the actual values of the property at the termination of 
 the adventure, to which shall be added the amount made good as 
 General Average for property sacrificed,* without reference to the 
 deduction. I put the question, that this portion of section ten to 
 the word ' sacrificed ' shall be adopted. 
 
 Carried unanimously. 
 
 The Chairman. Perhaps we had better now take the deduction 
 here expressed : ' Deduction being made, from the shipowner's 
 freight at risk, of that portion of the crew's wages and the port 
 charges of the ship, the liability for which is contingent upon the 
 earning of such freight.' The question is put that this part of the 
 clause be adopted. 
 
 ]Mu. Baily. I have two amendments to propose — first, as to
 
 192 MARITIME LEGISLATION. 
 
 the words, ' that portion of the crew's wages and the port charges 
 on the ship, the liaLility for which is contingent upon the earning 
 of such freio-ht.' This clause has been worded rather with refer- 
 ence to the Eno-lish law. The laws in different countries vary as 
 regards the liability to the crew for wages, some making the wages 
 payable up to the date of the loss of the ship ; some holding that 
 when there is no freight there are no wages. I propose, therefore, 
 to avoid the difficulty by taking an arbitrary amount of the freight 
 as the contributory value of that freight ; and I suggest that we 
 take three-fifths of the freight to contribute in-all cases. 
 
 The Chairman. Then the amendment is to this effect : ' Deduc- 
 tion being made from the freight of two-fifths of such freight, in 
 lieu of crew"s wages and port charges on the ship,' and you omit 
 the rest of the original paragraph. 
 
 Mk. Rathbone. I beg to second that amendment. 
 
 Mr. Van Peborgh was in favour of the amendment. The 
 great argument in its favour was that it was the only practical 
 method of producing uniformity. While the laws of different 
 countries varied with respect to the payment of the crew, any rule 
 of contribution based on that payment would necessarily be 
 variable also. He wished, however, that the clause should be 
 altered so as to lay down a rule touching the contribution of 
 freight paid in advance. It ought to be clearly defined whether 
 the shipowner or charterer should contribute in respect of such 
 advances. 
 
 The Chairman. We must confine ourselves at present to the 
 question of two-fifths of the freight in lieu of crew's wages and 
 port charges. 
 
 Mr. Lowndes preferred the clause in its original form, because 
 they then would stand on a clear principle, as to which all might 
 nfree. 1\) take an arbitrary proportion seemed to be a retrogres- 
 sion rather than an improvement. When a voyage was retarded, 
 the frei<dit might be cufii'i'ly absdi-hcd in wages and exjienses. 
 Why not liave a ride which would meet this case ? l']uongh 
 would have been done towards uuifonnily if a uniform pi'inciple 
 were adopted, though the applit-atiou of it might vary in its 
 delails.
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 19:} 
 
 Mr. Baily's amonclmcnt was then put. 
 
 For the amendment . . . . .7 
 
 Against it . . . . . . .3 
 
 Amendment carried accordingly. 
 
 A discussion then took place as to several details of the deduc- 
 tions to be made from the contributory value of the freight. In 
 order to avoid the disturbing effect of jn-o rata frtMght, as allowed 
 in some countries, Mr. Baily proposed that no deduction for wages 
 should be made from jn-o rata freight. This, however, was nega- 
 tived. It was agreed that passage-money at risk should be put on 
 the same footing as freight. And, on the suggestion of Mr. Cruse- 
 mann, a clause was added to provide for the deduction from the 
 contributory value of all charges incurred subsequently to the 
 arising of the claim for General Average. 
 
 The clause, in its amended form, was then carried unanimously. 
 
 The Chairmax. We now come to the last clause of the section. 
 This is as follows : ' In case the amount to be made good sliall 
 exceed the aggregate of contributory values, computed as above 
 stated, such aggregate shall, in the first instance, be taken towards 
 satisfying the General Average; and the excess of the General 
 Average shall then be apportioned as if the ship and the entire 
 cargo on board or at a risk at the time of doing the act or measure 
 which has given rise to the General Average had reached the port 
 of destination free from damage.' 
 
 A discussion arose, and some alterations were agreed to in the 
 wording of this clause, after which 
 
 Dr. Wertheim moved that the entire clause be rejected. He 
 would simply cut it out, and substitute nothing in its place. It 
 would be in vain to let stand part of the clause, when the whole 
 clause is entirely against all the principles of law. When you go 
 to the ancient law on the principle of General Average claims, 3'ou 
 will find that no man is allowed to lose more than the entire value 
 of his property which has been saved. Yet here, in 1864, we are 
 called upon to depart from that good old principle. I am quite 
 sure that America, Holland, Sweden and Belgium will keep to 
 the true principle. When I have lost all my property, my purse, 
 my money, and my dress — when I have no money, and even no 
 

 
 194 MARITIME LEGISLATION. 
 
 pockets at all— then you are not satisfied to leave me in this forlorn 
 condition, bnt you want nie to pay something more. The only way 
 left to me Avould be to raise the money from the underwriters, and 
 the underwriters would not take the risk under such circumstances. 
 
 Mr. Rathbone. I have often paid more than a hundred per 
 cent., and a very uncomfortable state of things it is. 
 
 Dr. Franck seconded Dr. Wertheim's amendment. 
 
 Mr. Lo^^'^DES. I will endeavour to answer the illustration ot 
 Dr. Wertheim, as to his pockets being emptied. If a shipowner 
 has no other funds, and has lost all his property by the shipwreck, 
 there is no way which has yet been made known of extracting 
 anything more from him ; but if he has property, not perhaps in 
 that ship, but in another ship, or of any other description, it does 
 not appear so clear that he ought not to pay the debts incurred in 
 the unsuccessful endeavour to save his ship. If Dr. Wertheim 
 were to happen to have his pocket picked, although he might lose 
 all the money in that pocket or about his person, yet, if he chose 
 to hire a detective to attempt to recover his property, although that 
 attempt might prove unsuccessful, he would probably pay that 
 detective for his services. In the same way a ship may be on the 
 shore and in a position that makes it uncertain whether she will 
 ever be got off. The owner deliberates as to employing a steamer 
 to recover her ; if he knows that he will be paid for the expense 
 to be incurred whether the attempt is successful or not, the proba- 
 bility is that, if there is a reasonable prospect of getting the ship 
 off, he Avill send down a steamer, and in this way much property 
 may be saved that otherwise would not. A shipowner of any sense 
 would be very careful indeed how he sent down a steamer, under 
 such circumstances, for the benefit of underwriters, if he were to 
 run the j'isk f^f having to pay for it out of his own pocket. The 
 law of General Average supposes a reasonable expenditure and 
 judicious conduct. It may be said, 'You have incurred expenses 
 foolishly, beyond the probable value of the iidvantage to be derived, 
 and acted unwisely in doing so'; but, if thai could be established 
 the parties would hf cxfiiscil, fi'diii all liabilily. Supposing the 
 measures to 1j(^ taken in good faith and judiciously, so that any one 
 would say it was for the benefit of all, why should the loss be thrown
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. lJ)r> 
 
 upon one person, more energetic than the re&t, who takes the 
 measures intended for the benefit of all ? 
 
 Judge Marvin. I will ask Dr. Wertheim a question on this. 
 Did 1 understand him rightly to say that by the law of Holland 
 the owuer of the ship and the owner of the cargo cannot be called 
 upon to lose any more than the whole ship and the whole cargo, 
 tliut is, tliat the total loss is the boundary and extent of their 
 liability ? Then, what would they do in such a case as this ? A 
 vessel puts into a port of refuge, where various expenses are incurred 
 for the purpose of enabling the master to complete the voyage. 
 He has the cargo to unload, has warehouse rent to pay, and a 
 variety of expenses are incurred. The vessel, after making the 
 necessary repairs, proceeds on her voyage. There has been no 
 bottomry bond given or taken ; the master has obtained money by 
 a bill on the owner of the vessel, or perhaps the owner of the vessel 
 comes to the port of refuge himself and pays all the expenses, and 
 every one is satisfied. Now then, the vessel starts on her voyage, 
 sinks at sea, and goes to the bottom. I wish to submit to Dr. 
 Wertheim this question : the shipowner having advanced this 
 money, not only for his own benefit but also on account of the 
 owner of the cargo, and all these expenses being General Average, 
 the cargo having gone to the bottom, has not the shipowner, in 
 some shape or other, a remedy against the owner of the cargo for 
 the money he has advanced ? 
 
 Dr. Wertheim. When the shipowner or captain acts in that 
 way, he is obliged, according to clause 334 of the Dutch code, to 
 insure all that which he has disbursed on account of the common 
 interest, because it is a new contract. If he is willing to take all 
 risk for his own account, he is free to do that ; but he is obliged, if 
 he means to claim it again, to insure all the cost for repairs ; in 
 that way he has a remedy. 
 
 Mr. Baily. Suppose there are no insurance offices or under- 
 writers, how does he manage then ? 
 
 Dr. Wertheim. In Holland he can do it ; he can go to any 
 insurance office or underwriter for that purpose. 
 
 Dr. Rahusen. The shipowner will receive a bill of exchange 
 drawn upon him : he cnn do as he pleases about accepting it ; he 
 
 -2
 
 19G MARITIME LEGISLATION. 
 
 need not to accept it unless lie can insure it. If lie insures it, lie 
 is safe. If lie does not accept the bill, lie is safe too ; for if the 
 ship be lost, he has only to abandon the ship and freight, and then 
 he is clear. All that is quite simple. 
 
 Mr. Baily. The flaw here is, that you render it almost impos- 
 sible for a captain at a distant port to raise money by bill on his 
 owners. He can never be secure of his bill being accepted, and no 
 agent on the spot could prudently take a bill. In the generality of 
 cases shipowners could not protect themselves by insurance under 
 such circumstances. Besides, owing to telegrams, &c. it is not an 
 unusual thing to hear of a loss at the same time as of a necessity 
 for an insurance. Men will not run such risks when they advance 
 money for other people. 
 
 Judge Marvin. The proposition of Dr. Wertheim is sound as 
 to sacrifices ; if your goods are thrown overboard, there is an end 
 of the matter, you ought not to pay any more. The same as to 
 stranding ; the same as to sacrifices, such as cutting away masts. 
 The loss of the thing is the end of it ; but wdien the master of the 
 ship advances money for your benefit when in a port of distress, 
 you ought to pay it. So that, as to expenditure made in a port of 
 refuge, it appears to me there should be some provision made 
 whereby he must be repaid where some of the property is lost, and 
 the property saved is insufficient to pay the expenses. 
 
 ^Ir. Engels. In some instances it may not be easy, or even 
 possible, to insure a vessel ; in some places they will not insure all 
 vessels. This is the risk which any shipowner has to consider ; 
 but there is a great deal of inconvenience and hardship in obliging 
 me to pay all my property away because you choose to run me into 
 debt. We have had in Belgium a shipowner of a certain vessel 
 
 called the ' ,' a small vessel, who was obliged to sell her off, even 
 
 the beds, and was reduced to poverty. I aui speaking of a shipowner 
 who only has a ship or two. We say, ' You may have the liberty of 
 abandoning the property,' and let the lender of the money look out for 
 himself; lie can protect himself by a loan on bottomry. That is the 
 jiiiiiriplo of the law laid down in I'clgiiiiii, Ii(jlland, and elsewhere. 
 
 Mr. Baily. The effect of llic clause, as it stands, may be 
 illiiHtratod thus: If a steamer, Ww. hire of which is 1,200/., is sent
 
 INTERNATIONAL LAW OF GENERAL AVEUAOE. 197 
 
 down to save 2,000/. worth of property, which l)y casualties, after, 
 or imknovvn at the time when the steamer is sent, is reduced in 
 value to 1,000/., that 1,000/. is credited to the 1,200/. expenses that 
 have been incurred, and the balance, 200/., is paid by all the 
 property which it was intended to save, i.e. the 1,200/, I send 
 down a steamer to sjive A and B's goods. A's goods are totally 
 lost, and B's goods are saved. The proceeds of B's goods are put 
 to the credit of the expenses, and the excess of expenses over the 
 proceeds is paid by A and B. B cannot bo made to pay the 
 whole expenses, and you must repay the party who has incurred 
 the expense. 
 
 Mk. Kathbone. Mr. Engels, you would not make B pay the 
 expenses of A and B. The captain is simply the agent of the 
 owner, and, therefore, making the captain responsible is making 
 the owner responsible ; is not that the case in Belgium as in 
 England ? 
 
 Mk, Engels. He is only liable to the extent of the value of 
 the vessel in that country. 
 
 The Chairman. In England the expenses that are necessary 
 are allowed. 
 
 Mr, Rathbone, These expenses have been incurred, and must 
 be borne by somebody. 
 
 The CiiaiRxMAN, Are you to go upon the owner of the property 
 for the deficiency which the cargo saved will not meet ? 
 
 Mr, Baily. Perhaps we had better withdraw the clause 
 altogether. 
 
 The Chahoian, It is put to the committee that this latter part 
 of the clause shall be struck out. 
 
 Carried unanimously, 
 
 Mr. Baily, There was one amendment postponed, at the end 
 of section eight, I now propose to add, ' Except that any portion 
 of the cargo left at such port of refuge on account of its unfitness to 
 be carried by the ship, shall not contribute to such General Average.' 
 
 The Chairman, Is it the pleasure of the meeting that these 
 words shall be added ? 
 
 Mr, Chusemann, I do not know that the word ' unfit ' would 
 be the proper expression there.
 
 J03 MAElTIMl!: LEGISLATION. 
 
 The Chairman. I do not think yon will find a better word to 
 express the meaning intended. 
 
 Mr. Crusemann. There may be goods remaining behind, be- 
 cause the ship cannot take them, the stowage not being in a state 
 to take them. If you have a ship capable of stowing only 400 
 bales of cotton, it is impossible to bring 400 bales more in her, 
 and therefore some part of the cargo must remain behind, and 
 there these expenses would be apportioned on those goods remain- 
 ing behind. 
 
 Mr. Baily. I do not wish to go into that. 
 The Chairman. It might be made to stand thus : ' either the 
 unfitness of the goods to be conveyed or the unfitness of the ship 
 to carry them.' 
 
 ]\Ir. Lowndes. This proposition, as amended, is contrary to 
 that pi'oviso about which we had such a fight in the morning ; it 
 is undoing what was then done. 
 
 Mr. Baily. I will alter my amendment as proposed by our 
 Chairman, and it will then stand thus : ,' Except that any portion 
 of the cargo left at such port of refuge on account of its unfitness 
 to be carried by the ship, or the unfitness or inability of the ship 
 to carry it forward, shall not contribute to such General Average.' 
 Mii. Lowndes was so unwilling by a side wind to defeat the 
 arrangement come to in the morning, when the foreign members, 
 after carrying their amendment, withdrew it out of deference to 
 the wishes of the English members, and consented to leave the 
 allowance of wages in the case of condemnation an open question, 
 that he felt obliged to oppose Mr. Baily 's proposition in its amended 
 fi trill. In cases of condemnation this clause would always come 
 into ()])eration through the words 'unfitness or inability of the ship 
 to caiTv foi-\v;ii-(l I lie cargo;' and Ihus in all these cases there 
 woiiM br no allowanci- oC crew's wages in General Average. This 
 was i-.-tnriiiiig to ihe shile of things first negatived, and then \v{'t 
 an open question, in our discussion Ihis morning. 
 
 The CiiAlliMAN. Mr. liaily juit I'oiwaid lasl eNcning the lual Icr 
 now in hand, and il was understood llial tliis was atrreed to. Mr. 
 I'aily iindiTi odk tu I'dVanie the pi-oviso. At lii'st Mr. Crusemann 
 Keenr<l to lia\c some olijecl ions. Mi-. Haily lias now corr.-cted his
 
 INTERNATIONAL LAW OV GENERAL AVERAGE. 190 
 
 aniciuliufiit so as to meet liis vit-ws. This addil ion applies solely 
 to cast's wherci the vessel goes into tlic port and out of t]ie port 
 with her cargo, and merely introduces an exception when somo 
 part of the cargo is left behind from having been sea-damaged. 
 The words were added merely to define this, that the cargo which 
 has finished its car(>er does not contribute to the subsequent 
 i\\penses, any more than to masts cut away in the future progress 
 of the voyage. I think with perfect confidence it applies to the 
 case in which the ship proceeds upon the voyage, not where the 
 shi[) has been condemned ; condemnation, therefore, is out of the 
 question. 
 
 Mk. Baily. ]\Ir. Lowndes is under a complete misapprehension 
 as to the effect of my clause. It must be taken in connection with 
 the rest of the sentence, wliieh limits its operation to the case in 
 wliich the ship ' shall have sailed from the port of refuge with her 
 original cai'go, or part of it.' 
 
 Mr. Lowndes. The principle contended for by Mr. Orusemann 
 was this, that the communion between ship and cargo continued, 
 even when the cargo was not reladen, beyond the discharge of the 
 cargo. This view prevailed, but it was agreed to leave the matter 
 open. Mr. Baily's clause certainly appears to contradict this view. 
 ^J'hus it is undoing our morning's work. 
 
 The Chairman. I will now put the question whether this shall 
 be adopted by the meeting or not. 
 
 For the resolution . . . . . .11 
 
 Against it . . . . . . .2 
 
 The amendment carried. 
 
 Mr. Lowndes. In consequence of what took place at our 
 sitting yesterday, I have drawn a clause in this form, to be made 
 the eleventh section of the Bill : ' In every case in which a sacrifice 
 of cargo is made good as General Average, the loss of freight, if 
 any, which ia caused by such loss of cargo, shall likewise be so 
 made good.' 
 
 Judge Marvin. I second that. 
 
 Carried unanimously. 
 
 Judge Marvin. I wish to move that in the first section the 
 words, ' or other wood cargo,' may be introduced.
 
 200 MARITIME LEGISLATION. 
 
 The CriAiRM.w. T cannot infcrfero with the business of my pre- 
 decessor in this chair. Section one and section two have been passed. 
 If that which is now proposed has not been fully discussed, that 
 would be a reason for my alistaining from introducing any altera- 
 tion now, because it ought not to be introduced without further 
 discussion. 
 
 The Chairman. I believe I may now announce to the meeting 
 that their discussions upon the Bill, which it is proposed should be 
 submitted to the Legislature, are closed. Before separating, I feel 
 that, having so far performed my duty in presiding over your 
 deliberations down to the settlement of the Bill, although I might 
 conclude with merely thanking you for the willingness with which 
 you have honoured my humble efforts to assist you, I should only 
 liave performed a part of my duty if I were to stop here. A great 
 deal has yet to be considered and determined upon, and proceedings 
 to be resolved on and adopted, before any practical results shall 
 follow the deliberations in which we have now been engaged, and 
 it is with a view to your assistance, to facilitate the efforts you have 
 to make to give effect to this Bill, and to the exertions you have in 
 common made to settle this question, that I have presided at this 
 meeting. It will have been observed that I have myself cautiously 
 abstained from expressing any opinion upon the different clauses 
 which have come under consideration and been discussed. I have 
 done so for two reasons ; in the first place, upon a subject so com- 
 plicated, a subject not merely involving questions of law, upon 
 which, perhaps, I could have been prepared at any moment to 
 express a definite opinion, but involving questions of expediency 
 and public policy, not only throughout Great Britain but through- 
 out tlio world, I liave abstained from forming any opinion until I 
 sliall havi' referred to those who have made themselves masters of 
 the subject, especially until 1 have referred to the treatises and 
 works which have Ix'eu {lublished. and to which my very learned 
 friend Judge Marvin lias alluded. But there is another reason 
 why 1 abstain. Sooner or later — I hope slneen'ly soon and not 
 late — 1liis l)ill or some such Bill will (•(une iiiidei' the consideration 
 of tlie Legislature. Having tlie honoiii' to lie ;i member of that 
 Jjegisluture, J wouM hold niyselC free and independent to take
 
 IXTEnNATIONAT. TAW OF GENERAL AVERAGE. L>OI 
 
 that course upon llio Hill, or ii]ion jifirticnlar clauses of tlie Tiill, 
 wliicli may appear expedient, not now only, l)ut under the cir- 
 cumstances which may exist wlienever that Bill may come before 
 the Legislature. It is upon these grounds only that I have re- 
 frained from expressing any opinion myself; but so many gen- 
 tlemen are here assembled who are perfectly adequate to form a 
 sound judgment, that, had I been inclined to indulge in any opinion, 
 I should liave thought it unwise to express such an opinion. Let 
 us consider, for a few moments, what are the steps about to be 
 taken. If a Bill of this character be submitted to the House of 
 Commons, or either branch of the Legislature, and it comes clothed 
 and supported by the sanction and approval of the great majority of 
 the mercantile community of the country : if the member who 
 brings it forward can assert that it has received the approval of 
 this and that Chamber of Commerce, and of a body of commercial 
 persons who were in possession of the sentiments of the whole 
 inhabitants, for example, of the towns of Liverpool, Manchester, 
 Bristol, Glasgow, and Hull, and other great commercial commu- 
 nities, then, though there might be ditlerences of opinion as to 
 details, yet, if the House were satisfied that this Bill truly and 
 adequately represents the opinions, the principles, and the wishes 
 of the great majority of the mercantile community, the Bill is 
 almost certain to receive the sanction of the Legislature. If, on 
 the other hand, this Bill were to be the subject of great difference 
 of opinion, such as would lead to much discussion in the House of 
 Commons, the members for Liverpool insisting, perhaps, on one 
 set of clauses, and those for Hull, for Glasgow, or Bristol for 
 another set of clauses, so that the House of Commons might be 
 ignorant as to whether they were or were not meeting the wishes 
 of the great majority, then it would be impossible that the Bill 
 could pass. Let me, therefore, recommend that the Bill should 
 contain such provisions as the great majority of that community 
 are willing and disposed to have passed and made into law. I 
 think you ma}' be pretty sure, after the discussion which has taken 
 place, that what the great majority of those assembled here have 
 deliberately approved of will receive the sanction of the commercial 
 community. Let me advise every member to see that he has the
 
 20-2 MARITIME LEGISLATION. 
 
 sanction of the gTeat commercial world in this matter. You must 
 go to our Legislature, supported by the sanction and the approval of 
 other countries also. It would be in vain for Great Britain to 
 make an Act of Parliament in relation to the subject of General 
 Average, already dealt with by the common law and acted upon 
 in our courts, unless you were jn^etty sure of its becoming likewise 
 the commercial law of the world, or that it was tolerably sure to 
 receive the approval of the chief commercial countries of Europe 
 and of America. I think you may well begin in this country, be- 
 cause, while 1 highly respect the Legislatures of many other nations, 
 I think, considering the familiarity we in this country have acquired 
 with every branch of commercial law, that, if the British Legisla- 
 ture were to pass an Act of this nature, it would become a precedent 
 or an example which would be readily and immediately adopted, 
 chiefly and first, I may hope, in the United States of America, 
 that great maritime nation, and also in France, Germany, Spain, 
 Belgium, Holland, and other great commercial communities of 
 the world. I will suppose, therefore, that you have received the 
 sanction of the other maritime and commercial nations of the 
 woi'ld. Then will come the question — and here I have a few words to 
 address to you which may be of some use to you — then will come 
 the question how you are to bring forw^ard this Bill in the Legis- 
 lature. In the first place, you would have to engage some counsel 
 at the bar, accustomed to the preparation of Acts of Parliament 
 and drafts of Bills. If I may use such an expression, the substance, 
 to the very letter, of this Bill as agreed, must be religiously adhered 
 to, and not departed from in the least, but the phraseology must 
 be altered in some immaterial instances ; while the substance is 
 almost religiously maintained, the form must be put into the usual 
 form of an Act of Parliament. After this the Bill, thus put into 
 Kliapo, must be introduced iulo ilic llonse of Commons. To whom, 
 there, are you to ciiIimisI iliis inqwrtant oflice ? One method is, to 
 introduce the Bill by imaus of the (iovernment of the country. It 
 is in that case brought forward as a liill which has received the 
 sanction ol' tln' (Idvcrnnicnt , wliidi ;i ni('nil)(M- of the Government 
 will introduce. AndlluT met IkmI is, lo liavi' the \Vi\\ 1)rought for- 
 wai'd liy an indiviihial nicniber ol rarliament, who may or may
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. l>03 
 
 not receive the support of the (lovernnient uiid of tlie House. If 
 you can obtain the support of tht^ (ioveniment, by all means do so, 
 for then your Bill is almost sure to pass. If a member of the 
 Government should brin<^ forward a Bill, which has received the 
 sanction of the commercial interests of Great Britain, and of the 
 chief commercial nations of the world, it would pass throug-h the 
 House of Commons and the House of Lords with a great deal 
 of support and no substantial opposition, and no material variation 
 or modiiication might be made in it. If you can, therefore, do 
 so, by all means obtain the sanction of the Government. The 
 mode of doing that would be for a deputation to proceed to the 
 President or Vice-President of the Board of Trade, and request 
 him to confer with the Prime Minister of the crown, and to 
 announce to him that the Bill had already received the sanctions 
 to which I have alluded, and he might be induced to bring it 
 forward in his place in Parliament, when it would be pretty certain 
 to pass withont opposition. It may be, however, that the Govern- 
 men, though perfectly willing to support such a measure, might 
 not think it was within their province to bring it forwaixl, especially 
 if much pushed and pressed by other business, and then will come 
 the task, and by no means an easy one, but a very delicate and 
 difficult matter — to consider to what member or members you will 
 entrust this Bill. Let me resort to the exhaustive process. You 
 must not offer it to any individual member of the Government. If 
 he represented a mercantile constituency, and could safely under- 
 take it, he might be obliged, from some difference of opinion of his 
 constituents, and likewise in the same way if one of his colleagues 
 wished him to do so, to alter it, and thus endanger the measure. 
 Neither should I recommend you to entrust the Bill to any 
 one who, having been a member of a past Government, is likely 
 to be a member of a succeeding one in case of a change in 
 the Administration ; and on this ground I must exclude and 
 except myself. On the breaking up of the present Government, 
 it might be that I sh :)uld become a member of the following 
 Government, and I might find myself embarrassed by the oppo- 
 sition of some of my colleagues. Avoid, therefore, a member 
 of the Government, or a member of a past Government likely to be
 
 204 MARITI^JE LEGISLATION. 
 
 a member of a future Government ; and tlien consider to wliat 
 description of persons you may entrust the Bill. It should be 
 entrusted to at least two members, one of whom should be a 
 mercantile man, and representing a mercantile constituency. Then 
 he must have the aid and the support of another member, who 
 should be a member of the bar — a learned, and experienced, and 
 accomplished lawyer. Without the advocacy of two gentlemen of 
 that description — a mercantile man able to take his part in the 
 debates that must ensue during the progress of the measure, and 
 an able and experienced lawyer, able to take an active, prominent, 
 and continual part in every stage of the passing of the Bill, there 
 would be no hope that your Bill would succeed. Then you must 
 take care to secure the support of as many members, mercantile 
 and legal also, from both sides of the House as possible. There is 
 always a danger arising in bringing in a Bill under the sanction of 
 the members of one side of the House only. If the proposer and 
 seconder and all the promoters of the Bill are on one side of the 
 House, there is a danger of raising suspicion as to the party cha- 
 racter of the Bill, which may be hazardous to its success. Whether 
 myself a member of the Government, or out of the Government, if 
 I shall be a member of either House of the Legislature when this 
 Bill is brought forward, you may feel perfectly assured I shall not 
 forget the business we have gone through to-day and yesterday, 
 and you may rely upon every exertion I can make to give effect to 
 your wishes. 
 
 Mr. Wendt. I think we all have to thank the Chairman for 
 the kindness with which he has now addressed us, and the willing- 
 ness and diligence with which he has aided our deliberations on 
 this occasion, 
 
 Mii. Lowndes. I am quite sure we are all perfectly unanimous 
 in expressing the extreme obligation which wo all feel ourselves 
 uiidi-r to Sir I'ltzroy Kelly. lie has come to aid us, not con- 
 bidcring it oiu' of I hose things which were to be got through as a 
 troublesoine and irksome task, as many would have found it, but 
 iiHS laken a lively inten-Ht in flic business of the committee, has 
 given us advice of the greatest value, and has also throughout our 
 discussions most materially benefited uur cause. We are most
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 205 
 
 warmly and deeply indebted to him ; and tliougli I can but in- 
 adequately express the feelings of the committee on this occasion, 
 I trust he will accept our sincere thanks for the service he has 
 rendered to us. 
 
 The Chairman. I return my best thanks to yourselves ; and, 
 in taking my leave of you, can very sincerely assure you, not only 
 that I have taken a most lively interest in all that has passed here, 
 but also shall continue to feel a pleasure in the remembrance of 
 these proceedings for a long time to come, and more particularly 
 in having made the acquaintance of so many able and distinguished 
 persons, whose acquaintance I hope I shall continue to enjoy for 
 many years. 
 
 The Chairman withdrew. 
 
 Mr. Wendt was called to the Chair. 
 
 Judge Makvin proposed the following resolution : ' Resolved 
 that the thanks of this meeting be recorded to our Chairman, Sir 
 Fitzroy Kelly, for his able and distinguished conduct while pre- 
 siding over this committee.' 
 
 Seconded and carried unanimously. 
 
 The International General Average rules framed at the above 
 congress are, therefore, as follows : — 
 
 Jettison of Beck Cargo. 
 
 I. A jettison of timber or deals, or any other description of 
 wood cargo, carried on the deck of a ship in pursuance of a general 
 custom of the trade in which the ship is then engaged, shall be 
 made good as General Average, in like manner as if such cai-go 
 had been jettisoned from below deck. 
 
 No jettison of deck cargo, other than timber or deals, or other 
 wood cargo, so carried as aforesaid, shall be made good as General 
 Average. 
 
 Every structure not built in with the frame of the vessel shall 
 be considered to be a part of the deck of the vessel. 
 
 Damage hy Jettison. 
 
 II. Damage done to goods or merchandise by water which un- 
 avoidably goes down a ship's hutches opened, or other opening
 
 2C6 MARITIME LEGISLATION. 
 
 made, for tlie purpose of making- a jettison, si i all l)e made good as 
 General Average, in case the loss by jettison is so made good. 
 
 Damage done by breakage or chafing, or otherwise from de- 
 ran o-ement of stowage consequent upon a jettison, shall be made 
 good as General Average. 
 
 Exti7i(juisJiing Fire on Sliijihoard. 
 
 III. Damage done to a ship and cargo, or either of them, by 
 water or otherwise in extinguishing a fire on board the ship, shall 
 be General Average. 
 
 Cutthig away Wrecl\ 
 
 IV. Loss or damage caused by cutting away the wreck or 
 remains of spars, or of other things which have previously been 
 carried away by sea peril, shall not be made good as General 
 Average. 
 
 Voluntary Stranding. 
 
 V. "\Ylien a ship is intentionally run on shore because she is 
 sinking or driving on shore or rocks, no damage caused to the 
 ship, the cargo, and the freight, or any or either of them, by such 
 intentional running on shore, shall be made good as General 
 Average. 
 
 Carrying a Press of Sail. 
 
 \J. Damage occasioned to a ship or cargo by carrying a press 
 of .sail shall not be made good as General Average. 
 
 Port of Pefnge Expenses. 
 
 \]]. When a ship shall have entered a port of refuge under 
 such circiniistances that the expenses of entering the port are ad- 
 missible as General Average, and when she shall have sailed thence 
 witli lier original cai-go, or a pai-t of" it, the corres]wnding expenses 
 of leaving such jjort shall likewise be so admitted as General 
 Average; and whenever the cost of diseli;irgiiig cargo at such port 
 is admissible as (Jenei-al Average, tlie cost of reloading and stowing 
 such cargo on board the said ship, together with all storage charges 
 (III such cargo, shall likewise be so adinitled, Mxcept that any
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 'J07 
 
 portion of the cargo left at siicli port of refuge, on account of its 
 being unfit to be carried forward, or on account of tlic unfitness or 
 inability of the ship to cany it, shall not be called on to contribute 
 to such General Average. 
 
 Wages and Maintenance of Crew in Port of Jiefuge. 
 
 YIII. When a ship shall have entered a port of refuge under 
 the circumstances defined in Section VII., the wages and cost of 
 maintenance of the master and mariners, from the time of entering 
 such port until the ship shall have been made ready to proceed upon 
 her voyage, shall be made good as General Average. Except that 
 any portion of the cargo left at such port of refuge on account of 
 its being unfit to be carried forward, or on account of the unfitness 
 or inability of the ship to carry it, shall not be called on to con- 
 tribute to such General Average. 
 
 Damage to Cargo in Discharging. 
 
 IX. Damage done to cargo by discharging it at a port of refuge 
 shall not be admissible as General Average, in case such cargo shall 
 have been discharged at the place and in the manner customary at 
 that port with ships not in distress. 
 
 ContriLutorij Values. 
 
 X. The contributions to a General Average shall be made upon 
 the actual values of the property at the termination of the adventure, 
 to which shall be added the amount made good as General Average 
 for ]n-operty sacrificed ; deduction being made from the shipowners' 
 freight and passage-money at risk, of two-fifths of such freiglit, 
 in lieu of crew's wages, port charges, and all other deductions; 
 deduction being also made from the value of the property of all 
 charges incurred in respect thereof subsequently to the arising of 
 the claim to General Average. 
 
 XI. In every case in which a sacrifice of cargo is made good as 
 General Average, the loss of freight, if any, which is caused by 
 such loss of cargo, shall likewise be so made good. 
 
 Mr. Lowndes, the secretary of the section, proposed the fol- 
 lowinsr resolutions, which were seconded and carried : — ■
 
 208 MARITIME LEGISLATION. 
 
 1. That a short report of our proceedings be at once drawn 
 up by the secretary, and presented to the council of the Social 
 Science Association, with a request that it be entered on the 
 minutes of the Association ; and that a copy of the same be 
 furnished to each member of the committee. 
 
 2. That a further report of the proceedings be afterwards 
 drawn up by the secretary, printed, and circulated. 
 
 3. That the draft Bill as now amended in congress, ought, in 
 the opinion of this congress, to be the basis of International 
 General Average Law. 
 
 4. That in order to carry out this object, associations should 
 be formed, or other measures taken in each of the countries repre- 
 sented in congress, and in other countries where practicable, for 
 the purjDose of causing this Bill to become the law and practice 
 of such country. 
 
 5. That this end should be pursued through the Legislatures 
 of each country where practicable, and also, pending legislation, 
 by means of clauses to be introduced into bills of lading and 
 charter parties. 
 
 6. That the clauses recommended for this purpose be the 
 following : ' All claims for General Average to be settled in 
 conformity with the International General Average rules, framed 
 at York in 18Gi.' 
 
 7. That, for the execution of these resolutions in each of the 
 places represented in this congress, the following representatives 
 be appointed in the name of the York Congress : — 
 
 Holland. — E. Driebeek, LL.D. ; E. N. Ilahusen, LL.D. ; J. 
 Wertheim, LL.D. 
 
 Biilfjium. — Theodore J. Engels ; Edward van Peborgh. 
 
 Maine {State of). — ). 11. Bradford. 
 
 New Yorlc (do). — Hon. Judge Marvin. 
 
 Bremen. — Edward Crusemann, LL.D. 
 
 Ifamhui'fj and Luheck. — Charles II. 11. I'rnnck, LL.D. 
 
 Ewjland. — II. J. Atkinson, Hull; li. Iv. i^aily, Liverpool; 
 E. Temperlcy Gourley, Siunlcrl.ind ; U. M. Hudson, Sun- 
 derland ; W. T. Jacob, Liverpool ; W. J. Lamport, Liver- 
 pool ; Richard Lowndes, Livei-pool ; D. W. Mackeclmie,
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 2C9 
 
 Glasgow ; P. H. Rathboue, Liverpool ; E. E. Wendt, 
 
 London. 
 France. — Jules Delaliaye. 
 Portugal. — 
 
 Russia. — G. Kamensky. 
 Denmark. — S. Gram ; Jacques Suenson ; Edward Thune. 
 
 8. That the representative or representatives of each country 
 or place, as named above, shall charge himself or themselves with 
 the task of organising an association or committee for such place, 
 or taking such other measures as in his judgment shall be best 
 conducive to the carrying out of the purposes laid down in the 
 foregoing resolutions. 
 
 9. That each local association, organised as above, or the 
 representative himself in the absence of an association, shall make 
 an annual report to the council for the time being of the Social 
 Science Association, setting forth what progress shall have been 
 made in his or their district ; and that such annual reports shall 
 be continued until the task assigned to such local association or 
 representative shall have been completely accomplished. 
 
 10. That in case any country or place, not here represented, 
 shall hereafter wish to join in this movement, the council for the 
 time being of the Social Science Association shall have power to 
 appoint a representative or representatives for such country or 
 place, who shall then have equal jDowers with the representatives 
 here appointed. 
 
 11. That the cordial thanks of this congress are given to the 
 National Association for the Promotion of Social Science, for the 
 very valuable services which the Association has rendered to the 
 congress. 
 
 12. That the objects of this congress having been attained, 
 this congress and the ' International General Average Committee ' 
 be now dissolvcnl. 
 
 A vote of thanks to Mr. Wendt was proposed and seconded, 
 and carried unanimously, wherewith the labours of the congress 
 terminated. 
 
 The general interest and approval with Avhieli the 
 result of tliese labours "were received in the inerea utile 
 
 1'
 
 no MARITIME LEGISLATION. 
 
 and imderwritiiig circles of tlie 2)nncipal centres of trade 
 could scarcely have been better proved tlian by tlie public 
 discussions which followed the appearance of the very 
 able reports which most of the delegates to the York 
 Concrress addressed soon after their return to their re- 
 spective constituencies. 
 
 But, remarkable enough, neither such expressions 
 of approval, nor the almost annual request which the 
 Associated Chambers of Commerce, on the motion of the 
 Hull Chamber, was for a number of years in the habit of 
 addressing to the Board of Trade in order to obtain im- 
 perial legislation on the basis of the York rules, led to any 
 practical result, and, if it is recollected that the Foreign 
 Office not only formally sanctioned, but actually forwarded 
 to H.M. Consular Officers abroad, official invitations for 
 such commercial or underwriting bodies as mio-ht be 
 established within their district, in order to induce them 
 to send delegates to the York Congress, it is not easy to 
 understand why no Government action was taken after 
 the result of deliberations which were presided over by no 
 less persons than the Judge of the Probate Court and Sir 
 Fitzroy Kelly, who soon after became Lord Chief Baron of 
 the Court of Exchequer, who were both no mean autho- 
 rities on the subject under consideration. 
 
 In this unsatisfactory state the question rested for 
 more than ten years, till, at the third annual Congress of 
 the Association for the Reform and Codification of the Law 
 of Nations at the Hague in 1875, one of its members 
 drew nllciilioii lo tlic dcsii-nhilily of considci-ing the laws 
 (»r dciicr.'il Ax'ci'.'igf'. 
 
 Tlic Ibiirlli :imiii;il icpoit of llic saiiie Association's 
 conrci-ciicc, held ;it l>iciiicii, st;ilcs tlinl on Tuesday, 
 ScptciulxM- 20, 187(», tlic siihjcci upon llic oi'dcr of the 
 (l;i\' \v;is ^ IciK'i'.'il .\\cr;iL!'<'.
 
 I>sTEllNATIONAL LAW OF GENEIUL AVERAGE. L'l I 
 
 Mu. 'riiEODoitE Hacii, of Bremen, in a comprehensive paper, 
 after giving an account of the Congresses of Glasgow (18G0), 
 presided over by ijord Brougham, London (18G2), presided over 
 by Sir Truvers Twiss, and York (18Gi), presided over by the Lord 
 Cliief Baron of tlie Court of Excliequer of England, Sir Fitzroy 
 Kelly, and alluding to the difficulties presented by inveterate 
 practice and long-established custom, maintained tliat the Associa- 
 tion ought not as yet to attempt to draft a complete code, but 
 should agree to the following three prepositions : — 
 
 1 . That such a code is required. 
 
 2. That the principles asserted in it are right and generally 
 recognised. 
 
 o. 'J'hat the code is practicable. 
 
 He then entered into details as to the principles which he con- 
 sidered the true ones and moved the following resolutions : — 
 
 L The fundamental principle of General Average is clearly 
 and tersely expressed by the following words in the German 
 General Mercantile Law : ' All damage done to ship, or cargo, or 
 both, by the master, or by order of the master, with the object of 
 saving both from a common danger, and all consequential damage 
 resulting therefrom, and the expenses incurred thereby, are General 
 Average ; and General Average is borne by ship, cargo, and 
 freight.' 
 
 2 The following are corollaries to this principle : — 
 ((f) A temporary separation of ship and cargo during the 
 voyage in consequence of circumstances inducing General 
 Average docs not terminate or suspend their common 
 liability to General Average. 
 (//) Such damage only is to be deemed consequential as is 
 caused by the original damtige, not such as only follows 
 accidentally. 
 
 3. This is the basis upon which an International Law of General 
 Average ought to be founded ; but, as there is no prospect of this 
 object ever being attained without the initiative of the different 
 (lovernments and Legislatures, the first efforts of the Association 
 should be directed towards influencing those bodies. 
 
 I. .V pcculiarlv suitable gi'oundwork for the discussion of such
 
 212 MARITIME LEGISLATION. 
 
 a law is to be foand in that portion of the German General Mer- 
 cantile Law which deals with General and Particular Average. 
 Further valuable materials are contained in the reports of the three 
 International General Average Congresses which have been held 
 in England. 
 
 5. Provisionally, in order to obviate, as much as possible, the 
 evil effects of the existing discrepancies in the laws of General 
 Average, it is desirable that average statements made at the port 
 of destination of a ship with the proper formalities and in accord- 
 ance with the laws there obtaining should be everywhere recognised 
 by insurers as binding. 
 
 6. That a committee be appointed by this meeting for the 
 purpose of organising and keeping on foot the agitation necessary 
 to give effect to Nos. 3 and 5 of these resolutions. 
 
 Mr. J. P. Schneider, of Bremen, followed with a paper upon 
 General Average, in which he endeavoured to show that General 
 Average rested entirely upon the principle of voluntary sacrifice. 
 He went on to remark that it had long been the wish of the mer- 
 chants and insurers of all maritime nations to see the laws of General 
 Average assimilated, since the contributions to General Average 
 were regulated by the laws of the country in which ship and cargo 
 parted company, and very often had to be paid in different coun- 
 tries. The assimilation of the laws of Insurance was of less import- 
 ance, since it was left to the choice of the insurer whether he would 
 extend his insurance to foreign property and foreign countries ; but 
 that, too, was very desirable, since it constantly happened that 
 insui'er and insured belonged to different countries. The following, 
 he said, were the principal points which called for reform : — 
 
 1. Exjyenses of the shi}^ during its detention by Governments and 
 otJter higher poioers. — By the laws of some countries these expenses 
 were apportioned as General Average. In the speaker's opinion it 
 was wrong to assume lh;it the expenses caused by the detention of 
 ships carrying cargo always fell upon one party. A^ery frequently, 
 when the cargo, by reason of \]w enforced detention, arrived too 
 late for the market which was contemplated when it was shipped, 
 the owner of the cargo siillircd a L''i'e,ilei' loss tlimi the shipowner, 
 since :i l:ill in in'iees could not l;e insured ;igainst. whereiis the
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 213 
 
 shipowner could protect liiinsi-lf to any extent he pleased. Each 
 party on<,'ht, therefore, to bi-ar liis own loss when a ship was forcibly 
 detained. 
 
 2. Expenscii in ports of refmjc. — The above remarks were 
 likewise applicable to port dues and wages and cost of main- 
 tenance of the crew when the ship was obliged to put into port 
 on account of Particular Average or to procure necessaries for the 
 voyage. If the expenses were apportioned as General Average, the 
 insurer, who contracted to indemnify the shipowner against all 
 losses, was released. When the cargo had to be landed for repairs, 
 the expenses of landing and reloading the cargo ought to be borne 
 by its owner, since the cargo ought not to stand in the way of the 
 shipowner who was ready to do his duty. 
 
 3. Damage done by collision. — If, in a collision, the master of 
 neither ship could be shown to be at fault, it seemed just that each 
 should bear his own damage ; if one only was at fault, he, of course, 
 must alone be answerable ; if both, neither ought to be able to 
 claim compensation from the other. This w^as recognised by the 
 German law, which was, however, silent as to the claims of the 
 owners of cargo for damages in respect of collisions. In the 
 speaker's opinion, the owners of cargo ought to look to the master 
 only, to w^hom they had entrusted tlieir goods, and the German 
 Supreme Court for Mercantile Cases was wrong when, in a recent 
 case, it decided in favour of the opposite view. 
 
 After further expressions of opinion from Sir Travers Twiss, 
 Mr. 0. SjOstrom, of Bremen, and others, Mr. H. H. Meier, at the 
 conclusion of some remarks whicli he offered, moved, and it was 
 resolved : — 
 
 'That a committee be appointed to consider the subject of 
 General Average; and that Mr. Hach's resolutions and Mr. 
 Schneider's paper be referred to that committee.' 
 
 The same report further mentions tliat on Thursday, 
 September 26, 187G, the conference proceeded to the 
 nomination of committees, and the following elections 
 took place : — Committee upon International General Aver- 
 age Law : Sir Travers Twiss {Chairman), Dr. A. Hinden-
 
 214 MARITIME LEGISLATION. 
 
 burg, of Copenhagen, and Messrs. E. E. Wendt, J. 
 Wertheim, of Amsterdam, H. Tli. Hack, and D. Murray. 
 Secretaries : Mr. H. D. Jencken and Mr. E. S. Tredgold, 
 of London. 
 
 This committee was during the following months con- 
 siderably strengthened by the addition of most of the 
 gentlemen who had in previous years evinced an interest 
 on the subject, and, as soon as a decision was arrived at 
 to meet in the autumn of 1877 in Antwerp for the pur- 
 pose of trying seriously again to agree upon International 
 General Average Eules, the committee used its best 
 endeavours to secure a large attendance on that occasion, 
 so that when, on Thursday, August 30, 1877, the meeting 
 of those interested in the subject took place in the Town 
 Hall of Antwerp, not less than sixty-eight gentlemen had 
 assembled either as delegates of the most important mer- 
 cantile and underwriting institutions in the world, or as 
 on their personal account connected with the discussion. 
 
 SiK Travers Twiss, being in the chair, called ujDon me 
 to open the proceedings by delivering my address, which 
 I did in the following words : — • 
 
 The executive council of the Association having, since the 
 Hague Congress in 1875, considered the subject of the laws of 
 Cieneral Average worthy of its attention, the discussion which took 
 ])lace at last year's Bremen Congress on the matter k'd not only 
 to the appointment of a standing committee on General Average 
 at the headquarters of the Association, but to the formation of 
 several local connuittees in different parts of the world. 
 
 As the result of the united exertions of the members of tht'se 
 coiiimittces the assembly licrc prcsciif may be taken, and, 1 am 
 sure, we all sincerely hope not only that a practical international 
 law of (Jeneral Average may result out of our discussions, but that, 
 •.\\'\ry it has been agi'eed upon, llie (lovcrnments wliosc flags are 
 |)riiicijtallv inleresled in the (iiicslions here to lie considered may
 
 INTERNATIONA!. LAW OF GF.NIP.AL AVERAGE. 215 
 
 tuko tlie necessary steps in order to secure its enactment by the 
 different Legislatures, 
 
 For although the executive council is well aware that if the 
 princi|)al sliipo\vners, merchants, and their respective underwriters 
 agree among themselves as to the principles upon which, in their 
 joint maritime adventures, questions of General Average are to bo 
 treated, suc-h agreements would be of legal force, but as they must 
 be renewed for each maritime adventure separately, in a binding 
 form, between the parties to it, the more convenient course would 
 be to obtain their enactment at law by the authority of the different 
 Governments, and some of them having evinced a not inconsiderable 
 interest on the subject, we may hope that no insurmountable 
 obstacles would be in the way to attain this desirable end in a 
 reasonable time. 
 
 The transactions of the first International General Average 
 Congress at Glasgow 18G0, or the second at London 18G2, and of 
 the third at York 186 i, being unfortunately out of print, reference 
 as to the history of the previous endeavours to obtain uniformity 
 in the international law of General Average must here be made to 
 the well-known work of our friend Mr. Richard Lowndes, ' The 
 Law of General Average,' second edition, and to the second edition 
 of my ' Papers on Maritime Legislation.' 
 
 There it will likewise be found recorded that, in spite of re- 
 peated attempts made by the Associated Chambers of Commerce 
 to prevail upon Her Britannic Majesty's Government to make the 
 rules which were passed at the last congress in York (18G4) a 
 subject of imperial legislation, nothing has been done ; and as the 
 manner in which these so-called ' York Eules ' were generally 
 received, and have been reviewed by competent authority, has 
 convinced the executive council that no better starting-point for 
 discussion could be offered, it was decided to invite you to enter 
 seriathn into the discussion of their different clauses. 
 
 But before you do so, let me allude to the reports which have 
 been presented by the local committees of Bremen, Gothenburg, 
 and Philadelphia. 
 
 The former document suggests the desirability of taking the 
 well-known clauses of the German maritime law as a starting-point
 
 216 MARITIME LEGISLATION. 
 
 for our deliberations, but keeping in view that the York rules are 
 a compromise between the parties who considered the ' common 
 safetv ' principle as sufficient for a basis of the international General 
 Averao-e law, and those who insisted upon nothing less than that 
 the common henefii of the maritime adventure should be the guid- 
 ing principle of it — the Bremen committee discusses the York 
 rules very fully, and submits in what form they should be amended 
 in order to be brought into conformity with the German maritime 
 law. 
 
 And, bearing in mind that the executive council, or rather 
 those of its members upon whom the management of the affairs of 
 all matters relating to General Average have devolved, owe an 
 expression of opinion to their Bremen friends as an acknowledg- 
 ment of the trouble they have kindly undertaken in the joint 
 cause, I think it my duty on this occasion to make the following 
 observations : — 
 
 As far as I recollect, there were certainly two reasons for the 
 York Congress in not following the German law, and in omitting 
 to place at the head of the York rules the definition of what is 
 meant by a General Average act. The first was, that it was not 
 easy to embrace in a few sentences all that it would have been 
 considered necessary to express under this head ; and the second was, 
 that none of the definitions hitherto either enacted in foreign laws, 
 or contained in the well-known authorities, did meet with general 
 approval . 
 
 And the executive council will be glad to have your opinion 
 whether you see any objection to our acceding to this part of the 
 Bremen proposal and putting at the head of the international 
 General Average Act law the combined Arts. 702 and 705 of the 
 German law, which would then run as follows : — 
 
 ' AH damage done to ship or cargo, or both, by the master or 
 by his orders, with intent to save both from a common danger, 
 as also the consequential damages resulting therefrom, and the 
 expenses incurred for the sanie purpose, are General Average. 
 
 ' General Average is borne by ship, freight, and cargo in 
 common. 
 
 ' Average dist iil>iil inn tukfs place only when shi]i as well as
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 217 
 
 cargo, and both, either altogether or in part, have really been 
 saved,' 
 
 The proposals then following, viz. : To make enactments : as 
 to how the values are to be ascertained of any sacrifices made for 
 the common benefit ; how the contributory values are to be taken ; 
 whether the rights of claimants for General Average sacrifices are 
 to be secured in any particular manner ; and how the contributions 
 to General Average are to be guaranteed — nay, if you think fit, be 
 settled according to the usages of the port where the average 
 statement is to be made up, as they hardly involve any question of 
 principle. 
 
 But I think you will concur that with great propriety the port 
 of destination, or the place where, in consequence of a General 
 Averaofe act, the maritime adventure is terminated, could be fixed 
 upon as the place for the adjustment of the General Average, pro- 
 vided the parties interested do not agree upon any other course. 
 
 Such proviso has become the more necessary, as in some 
 Eastern parts of the globe the custom of charging enormous com- 
 missions for making adjustments has lately induced the parties 
 ultimately liable for General Average contributions to insist upon 
 their being drawn up in some other j^lace than the port of destina- 
 tion, and subject to this proviso, the Bremen proposal is recom- 
 mended to the favourable consideration of the congress. 
 
 A reference to the report of the Bremen delegate to the York 
 Congress, our late lamented friend Crusemann, would have convinced 
 the Bremen committee that upon the consideration of no other 
 part of the York rules more time was spent than upon the rules 
 VII. (port of refuge expenses) and VIII. (wages and maintenance 
 of crew in port of refuge), and it remains to be seen whether the 
 discussions which must here take place on these most important 
 subjects will lead to a more satisfactory working of these two 
 rules. 
 
 But there is one observation in this part of the Bremen report 
 which calls for a remark. 
 
 The most flagrant cases of leaving part of the cargo behind in 
 ports of distress have occurred not — as here suggested — because 
 the ship was overloaded from the beginning, but in consequence of
 
 218 MARTTIME LEGISLATION. 
 
 cottou having been screwed into the ship's hohl in conformity with 
 the usages of the original port of loading, and from inal^ility in 
 the port of distress to restow it in the same manner. 
 
 The suggestion in the Bremen report that only the value of 
 the repairs as estimated at the end of the voyage shall be deducted 
 in order to arrive at the contributory value of the ship, may at 
 first sight recommend itself to the favourable consideration of the 
 meeting, but so many practical difficulties may be expected from 
 the adoption of this suggestion that I am inclined to think this 
 meeting will not recommend any alteration of the tenth rule. 
 
 Under the heading of ' Articles which might eventually be 
 used as a compromise to English views ' — under which term the 
 York rules are apparently mentioned — the Bremen report consents 
 to the wording of Rule V. (voluntary stranding), but suggests the 
 propriety of enacting that damage done by defending a ship against 
 enemies or pirates, and the expense of ransoming a ship after cap- 
 ture by enemies or pirates, should be made good in General Average 
 — to which scarcely any objection can be raised. The same will 
 be found with respect to their proposal to add to Rule I. (jettison 
 of deck cargo) : ' Provided that this rule applies only to such 
 vessels as are expressly constructed and fitted up for suth trade in 
 such a way that the deck cargo does not cause any extraordinary 
 risk to the navigation.' 
 
 The further suggestions under this head, namely, (a) that the 
 contributory value of freight should not be reduced to less than 
 one-half of the gross freight ; (Ij) that any loss arising to cargo- 
 owners out of the shipowner's inability to provide for his share to 
 a bottomry bond should be rateably distributed among them ; and 
 (c) that in case of detention hj force majeure the crew's wages and 
 provisions should be dealt with as General Average, will undoubtedly 
 give rise to some interesting discussions, so that I need not do any 
 more in tliis place (liaii call attention to them. 
 
 T come now to IIk; recommendation in the Bremen report to 
 reconsider tlie fourth rule (cutting away wreck), and I beg to 
 express t])e liope. Ili;it this i-ecomnieiidal ion will not be insisted 
 upon, for tliis rule was passed in conformity witji the well-known 
 dictum of one of onr most celebrated Judges, tlint the cutting
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 219 
 
 away of tliat which, being in a state in which it cannot be saved, 
 is already virtually lost, and moreover encumbering the navigation 
 of the vessel, is therefore not such a sacrifice as to give a title to 
 contribution. 
 
 The report of the Swedish committee draws very prominently 
 our attention to the enactment in their law that no jettison of 
 deckload is allowed in General Average, unless effected in order 
 to lighten the vessel when aground ; and if we take into considera- 
 tion that this law is in existence in one of the countries which have 
 most of the vessels trading under their flag which are especially 
 built and fitted for carrying large deckloads, the principle here laid 
 down is undoubtedly worthy of our most serious consideration. 
 
 The further suggestion that in case the voyage ends in a port 
 of refuge no other expenses but those for entering the port, and 
 for the maintenance of the crew till such resolution is arrived at, 
 are allowable in General Average, appears self evident, and not 
 requiring a special enactment. 
 
 The final suggestions in the Swedish report relating to the 
 contributory values of ship, cargo, and freight will undoubtedly 
 have the full consideration of the meeting, especially so far as it re- 
 lates to the observation that the valuations of vessels are generally 
 put lower than they ought to be, a calamity which, according to 
 my own experience, can only be rectified by insisting in valuations 
 made by appraisers who are not only competent, but sworn to be 
 impartial. 
 
 The report of the Philadelphia committee, or rather the report 
 of the committee on Adjustments of the Board of Marine Under- 
 Avriters in that city, and addressed to the said Board, opposes the 
 first rule (jettison of deck cargo) altogether, because deck cargo 
 interferes — in their opinion — with the navigating and general 
 management of the ship, endangering the safety of the cargo 
 under deck, and because the act of jettison alone secures the earn- 
 ing of freight by the shipowner. 
 
 The report approves of Rules II. (damage by jettison), III. 
 (extinguishing fire on shipboard), IV. (cutting away wreck), Y. 
 (voluntary stranding), VI. (carrying press of sail) entirely, but 
 suggests to llule VII. (port of refuge expenses) that as any por-
 
 220 MARITIME LEGISLATION. 
 
 tions of cargo wliicli may liave been left beliiuJ in a port of refuge 
 liave equally benefited with the rest by putting into port of refuge, 
 they should not be exenipted from contribution to General Average, 
 and further suggests to Rule VIII. (wages and maintenance of 
 crew in port of refuge) that such allowance should not only be 
 made from the date of entering the port of refuge, but from the 
 bearing away for that port, repeating at the same time the objection 
 raised under the previous rule with respect to the exemption of 
 cargo left at port of refuge from General Average. 
 
 Rule IX. (damage to cargo in discharging) is opposed because 
 of the inability to see any difference in the method of discharging 
 under the master's discretion. 
 
 The Rules X. and XI. (contributory values) are approved of, 
 but an addition is suggested to the former — that even in the event 
 of loss after departure from a port of refuge an apportionment in 
 General Average of all expenses, with the exception of the wages 
 and maintenance of the crew, should take place; a proposition 
 which is not likely to obtain the assent of this meeting. 
 
 My reason for thus going more fully into the arguments upon 
 which the resolutions of the Philadelphia report as stated are based 
 is, that our friends there are not represented among us by a special 
 delegate, whereas we have the satisfaction of seeing in this meeting 
 delegates from Bremen and from Gothenburg, who, I am sure, will 
 take care that their views shall be properly pressed upon the meeting. 
 Before concluding, I ought to mention that the Executive Council 
 has to thank Mr. Joh. Phil. Schneider, of Bremen, for the ' Rules 
 fur the adjustment of claims for General Average, and for averages 
 from collision proposed for universal adoption ; ' but as the York 
 rules had been previously suggested as a basis for our deliberations, 
 the executive could not do more than circulate Mr. Schneider's 
 rules and sul)iiiit to the meeting, to consider how much of tliem 
 could be used for the improvement of the York rules. 
 
 ^fay our deliberations lead to a successful issue of an inter- 
 national General Average law! 
 
 TiikCiiaik.man tlic!nsii<f^^a;8UMl tli;il llic Yoi'k i-iilcsslioiikl 
 be tiikcii as a basis of discussion, but bcilbrc the sense of
 
 INTERNATIONAL L.VW OF GENERAL AVERAGE. 221 
 
 the meeting thereupon could be ascertamed, Mr. F. B. 13. 
 Natusch (oue of the delegates from Lloyd's) rose and 
 handed in the following letter : — • 
 
 To the Chairman of the Meeting of the Association for the Tlifonn 
 and Codification of the Law of Nations. 
 
 Average Law Department. 
 
 Lloyd's : August 1877. 
 
 Sir, — The Association for the Reform and Codification of the 
 Law of Nations having invited the committee of Lloyd's to send 
 representatives to the meeting at Antwerp, where the question of 
 General Average is to be tlie subject of discussion, IMessrs. F. B. 
 B. Natusch and Joseph Hillman have been appointed by the com- 
 mittee as a deputation to represent them on that occasion, with 
 Captain Henry Montague Hozier, the secretary of Lloyd's. 
 
 At the same time the committee think it right to place before 
 the Association their views upon the subject, and the views which 
 those who represent them will support. 
 
 There is a strong feeling in this committee that the differences 
 which exist in various countries upon this subject would be best 
 met by abolishing General Average altogether. Possibly this can- 
 not now be done ; and, if so, the committee consider that, so far as 
 English practice is concerned, any difference should be met by 
 curtailing, not by enlarging, the English rules. 
 
 The sacrifice of a part to avoid an impending peril w\as the 
 foundation of General Average, and was the very essence of any 
 claim. This ingredient should still form the basis of any claim, 
 and without this basis the new element of common benefit should 
 not be allowed to have any place. 
 
 From the fact that the York rules are to be adopted as a basis 
 for discussion, it is clear that no return to first principles can be 
 expected from the Antwerp meeting, for in the opinion of the 
 committee those rules extend considerably, both in principle and 
 amount, the area in which General Average may be recovered, and 
 tJie attempt to establish uniformity is carried out solely by intro-
 
 222 MARITDIE LEGISLATION. 
 
 ducing into tlie law of England cases of General Average which, 
 are allowed abroad, but not in England, and which the committee 
 consider most objectionable. 
 
 The committee think it right to bring these views to the 
 attention of the Association, that it may be understood they are 
 averse to any proposal for assimilating General Average which 
 is based upon extending in any manner the English law, instead 
 of reducing, both in principle and amount, the cases in which it 
 can be claimed. — I have the honour to be. Sir, 
 
 Your obedient Servant, 
 (Signed) George J. Goschen, 
 
 Chairman of Lloyd's . 
 
 After tlie General Secretary had read the letter and 
 the emotion caused by its contents had a little subsided, 
 
 Mr. Ph. H. Rathbone (Chairman of the Liverpool Board of 
 Underwriters) stated that he did not think that the position taken 
 up by Lloyd's corporation was in any way justified ; the doctrine 
 and practice of General Average being of universal application, he 
 could not admit the practicability of any other course than to 
 discuss any amendments which might be suggested for the im- 
 provement of the York rules. 
 
 Mr. John Glover (Ex-Chairman of the General Shipowners' 
 Society in London) thought that, in order to simplify the proceed- 
 ings, the delegates of Lloyd's should be desired to explain the reasons 
 which induced that body to send a letter of so serious a character. 
 
 Mr. T. HiLLMAN (one of these delegates) thereupon rose and 
 explained that, in their view. General Average had become such an 
 unbearable weight to commercial transactions that it would be for 
 tlieir benefit if it could be altogether abolished, and he considered 
 liinisclf the more justified to urge this view as everyone nowadays 
 insured cvcrvlhing, so that the underwritt-r really becomes liable 
 lor wliatever happened on the voyage, and it was immaterial to 
 liira whetlier it was paid in the shape of General or of Particular 
 Average, or whetlier it was paid as expenses for the ship or for 
 the cargo. lie also ci-it icised IVdiii ;i hkh'iiI jidiiil of \'ie\v tlie very
 
 IXTEKNATIONAL LAW OF GENERAL AVERAGE. 223 
 
 prevalent tendency to speculate on the admission of certain items 
 into (ienenil Average and the prohability of causing jettisons l)y 
 the overloading of vessels. He alluded further to the great delays 
 and the heavy expenses which were caused by the adjustment of 
 General Averages. He wound up his remarks by declaring his 
 conviction that the evil of General Average was not a necessary 
 one, and that the policies of insurance were quite sufficient to 
 settle the different questions arising under this head. 
 
 Mr. Lawrence II. Baily (Representative of the Steam Ship- 
 owners' Association of Liverpool) observed that, although he might 
 concede the correctness of the facts as stated by Mr. Hillman, he 
 could not agree that the arguments brought forward by that gentle- 
 man, and which principally concerned England, could have any 
 influence in considering the question whether it Avas advisable to 
 frame ' International General Average Rules.' He did not believe 
 it possible to abolish General Average altogether, and in defending 
 his point of view he gave an example respecting the expenses in 
 a port of refuge. 
 
 Dr. E. N. Rahusen (Delegate of the Netherland Handels Maat- 
 schappij and the Shipowners' Association of Amsterdam) expressed 
 his belief that the General Average customs would last longer than 
 Lloyd's itself. He remarked that Mr. Hillman's allusion to jettisons 
 caused by the overloading of vessels was inopportune, as in such 
 cases no claim for General Average could be substantiated. He 
 mentioned some other cases in which allowances in General 
 Average would not take place. With respect to the long delays, 
 he observed that they arose not in making the apportionment, but 
 in examining the facts which had given rise to the case and in 
 collecting the documents from the different parties interested. It 
 was, moreover, not exact, certainly with regard to Holland, to say 
 that all property was generally insured, and therefore the institu- 
 tion of General Average could not possibly be done away witli. 
 
 Mr. Manley Hopkins stated that, although he and two of his 
 colleagues (who had unfortunately been prevented from appearing) 
 liad been delegated to attend this meeting by the Average Adjus- 
 ters' Association in London, he had to reserve to his clients the 
 ]xnver to ratify or not to ratify the result of the deliberations at
 
 224 MARITIxAlE LEGISLATIOX. 
 
 which this meeting would ultimately arrive. He was well aware 
 that International Conventions could only arrive at results by 
 mutual concessions of its delegates, who must have been instructed 
 how far to go, and he was therefore highly interested as to the 
 results he would be able to report to his colleagues. 
 
 Mr. H. H. Meier (President of the North German Lloyd of 
 Bremen) was of opinion that the meeting should pass over the 
 letter of Lloyd's to the order of the day as indicated by the Presi- 
 dent, viz. discuss the York rules and the concessions which could 
 be made in order to arrive at distinct rules. 
 
 Mr. John Glover (Ex-Chairman of the General Shipowners' 
 Society in London) did not concur in the extreme view the 
 committee of Lloyd's intended to take upon this question, but 
 suggested that the reasons given in the communication now under 
 consideration should be used for the purpose of reducing not only 
 the expenses, but also the items to be qualified as admissible in 
 General Average as much as possible. 
 
 After a very lively discussion as to the future course of pro- 
 ceeding, in which the President, Sir Travers Twiss, suggested 
 that Mr. Goschen's letter should be entered on the minutes, Mr. 
 Natusch wished it to be understood that the committee of 
 Lloyd's had only in view the prevention of the future development 
 of the present system of General Average. Mr. Lowndes mentioned 
 that, as Lloyd's, by sending three delegates to this meeting, had 
 a perfect right to express their opinion, the passing to the order 
 of the day was not intended to show any hostile feeling towards 
 Lloyd's ; whereupon it was unanimously resolved ' That the said 
 letter should be entered on the minutes of the conference.' 
 
 The discussion on the letter from Lloyd's having thereby termi- 
 nated, Mr. H. H. Meier formally proposed : ' That the York rules 
 should be taken as a basis of discussion for this meeting.' This 
 resolution was almost immediately adopted, after liaving been 
 seconded I)y Mit. R. Lowndes, of tlu^ Liverpool Chamber of Com- 
 merce. 'J'liis latter gent Icninii (licii procrcdcd to analyse and dis- 
 cuss iIm- iiicaniii!/ ol'tlir lirst York rule, wliich runs as follows: — 
 
 JtiJLK 1. Jclti.^o/i nf Ih'cJ: (\ir<i(). — A jettison of timber ordeals, 
 or any other description of wood cargo, carried on the deck of a 
 
 \
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 2i>-) 
 
 slii|) in pursuance of a general custom of tlie trade in wliicli the 
 sliip is then engaged, shall be made good as General Average in 
 like manner as if such cargo had been jettisoned from below deck. 
 
 ' No jettison of deck cargo other than timber or deals, or other 
 wood cargo, so carried as aforesaid, sliall be made good as General 
 Average. 
 
 ' Every structure not built in with the frame of the vessel shall 
 be considered to be a part of the deck of the vessel.' 
 
 Mil. Lowndes advocated the adoption of this rule. Dii. Rahusent, 
 of Amsterdam, and Mr. Winge, of Christiania, together with some 
 English speakers, having taken part in the debate on different sides, 
 Mr. Meier, of Bremen, remarked that he reserved to himself the 
 right to move an amendment in the event of Rule I., which he 
 wished neither to oppose or support, being adopted. Mr. Cupier, 
 of Newcastle, Mr. Hacii, of Bremen, Mr. Jacobsex, of Copen- 
 hagen, and Sir Travers Twiss, President of the General Average 
 Committee, examined from various points of view the principle at 
 the bottom of the rule and the diverse eventualities which might 
 present themselves. Mr. J. Laxglois agreed with the opponents 
 of the rule, because it is too difficult to prove what portion of the 
 deck cargo has been voluntarily thrown overboard and what portion 
 has been swept away by the sea. 
 
 Mr. Rathbone then moved that the first York and Antwerp 
 Rule should run thus : ' No jettison of deck cargo shall be made 
 good as General Average.' 
 
 Dr. Rahusen seconded the motion. Mr. Axel Winge, how- 
 ever, proposed as an amendment the addition of the words : ' Ex- 
 cept in case of jettison to save the vessel.' 
 
 This amendment was seconded by Mr. Jacobsex, but lost by 
 a large majority. Mr. Rathbone's resolution was thereupon sub- 
 mitted to the meeting and carried by 26 votes to 10. 
 
 The meeting of the committee broke up at six o'clock, adjourn- 
 ing till the next day at ten. 
 
 On August 31 the sitting was resumed. Sir Travers Twiss 
 was in the chair, and was supported by Messrs. E. E. Wendt, 
 Meier, Engels, Peborgh and Rand Baily, the Honorary Secretary 
 
 Q
 
 220 MARITIME LEGISLATIOX. 
 
 of the Antwerp committee. After the formal business had been 
 dismissed and Mr. Rand Baily had placed upon the table the fur- 
 ther correspondence and papers, the discussion upon Rule I. was 
 resumed by Mr. Rathbone, who was followed by Mr. Lowndes, Mr. 
 Jacobsen, and Mr. Capper. With reference to the word ' structure,' 
 Mr. Natusch defined what in his opinion ought to be considered 
 the frame of an iron ship. 
 
 Dr. Raiiusen then submitted an amendment which ran as 
 follows : ' That cargo laden in au}" structure not built in with the 
 frame of the vessel shall be considered to be deck cargo.' 
 
 The amendment, which was seconded by Mr. Hillmax, having 
 been advocated and opposed on various grounds by different members 
 of the committee, was finally rejected without a division. 
 
 The rule as it then stood was now put by the Chairman, that : 
 ' Every structure not built in with the frame of the vessel shall be 
 considered to be a part of the deck of the vessel.' 
 
 Mr. Brown, of Hull, made some technical observations hereupon 
 which were not approved by the auditor3^ Dr. Wertheim read 
 an extract from the report of the labours at York, in which Mr. 
 Baily supported the paragraph which he was now desirous of sup- 
 pressing. Mr. Baily retorted that he had taken this line of 
 action precisely because of the difficulties that have presented 
 themselves. Mr. Lowndes saw no difficulty in the interpretation 
 of the word ' frame,' and proposed the maintenance of the w^ord in 
 question. 
 
 Dr. Rahusen's amendment : ' That cargo laden in any structure 
 not built in with the frame of the vessel shall be considered to be 
 deck cargo.' As it stood, the amendment, when put by the Chair- 
 man, was rejected, and the whole rule w^as then put to the meeting 
 in the following form and adopted : — 
 
 * Rule I. Jettison of Deck Cargo. — No jettison of deck cargo 
 filiall be made good as General Average. 
 
 ' p]very structure not built in wuth the frame of the vessel shall 
 be considered to be a part of <ho deck of the vessel.' 
 The meeting then proceeded to di.scuss 
 
 ' RcLE 1L Duwar/e Inj Jcitlxon. — Damage done to goods or 
 merchandise l)y water which unavoidably goes down a ship's hatches,
 
 IN'n:i;XATI()NAL ],AW of (lENiaiAL AVKRA(JK. L'i.'7 
 
 opened or other opeiiirg madr, for tlio purpose of making a jettison 
 shall 1m' niadc good as (Jeneral Average in case the loss I)y jettison 
 is so made good. 
 
 ' Damage done by breakage and chaBug, or otherwise from de- 
 rangement of stowage consequent upon a jettison, shall be made 
 good as General Average.' 
 
 Dh. Weutiieim proposed, and Mr. Hillman seconded, that the 
 first part of the second rule be adopted as printed. Mr. Hklm 
 pointed out that the French translation did not convey the mean- 
 ing of the English text. Mr. Hill.man proposed that the word 
 ' no ' be introduced before the word ' damage,' the first word of the 
 rule. Mr. Van Peboroh declared that he only voted for it at 
 York out of a spirit of concession, the great majority being then 
 favourable to it. Mr. ^NfAXLKY Hopkins thought that it was diffi- 
 cult and perhaps inopportune to discuss this question, as it touched 
 the general principle of what are the consequences of an average, a 
 subject at present under consideration in London judicial circles. 
 Mr. Hillman's amendment, opposed as it was to the first part of 
 Rule II., was rejected by a large majority, and the original paragraph 
 was adopted by a majority of 37 votes to 6. 
 
 As regards the second paragraph of Rule II., Dr. Rahusen 
 proposed to add the words : ' In case the loss by jettison is so made 
 good.' Mr. Meier here remarked that it was desirable that every 
 modification which only bore upon the change of words should be 
 avoided by honourable members in order to expedite their labours, 
 and, because, in any case, the resolutions of the congress, before 
 passing into law in any country, would be the objects of a profound 
 examination into the text. 
 
 Dr. Rahusen's amendment was then adopted, the second para- 
 graph accordingly running : ' Damage done by breakage and 
 chafing, or otherwise from derangement of stowage consequent 
 upon a jettison, shall be made good as General Average, in case 
 the loss by jettison is so made good.' 
 
 The meeting now proceeded to the consideration of Rule III., 
 which was drawn up in the following terms : — 
 
 'Rule III. Extiiujuisldnrj Fire on tShi2'>hoard. — Damage done 
 to a ship and cargo, or either of them, by water or otherwise, 
 
 ft 2
 
 228 MARITIME LEGISLATION. 
 
 in cxtino-iusliincr a fire on board the ship, shall be General 
 
 Average.' 
 
 Mr. Poor>E, seconded by Mr. Engels, moved the adoption of 
 
 the rule. 
 
 Mr. Lowndes, however, proposed as an amendment the addi- 
 tion of the words • ' Except that no compensation be made for 
 damage done by water to packages actually on fire,' 
 
 Dr. Eahusen seconded the amendment. On Mr. Meier's 
 suo-o-estion, the closing portion of the amendment was altered from 
 * packages actually on fire ' to ' packages which have been on fire.' 
 Thus altered, the amendment was adopted by a majority of 36 votes 
 to 4. 
 
 Rule IV. was next proceeded with. 
 
 ' Rule IV. Cut^ina away WrecJi. — Loss or damage caused by 
 cutting away the wreck or remains of spars, or of other things 
 which have previously been carried away by sea peril, shall not be 
 made good as General Average.' 
 
 Mr. Capper, seconded by Mr. Murray, moved the adoption of 
 the rule as it stood. 
 
 Mr. Hach, in the name of the German committee, asked for a 
 reconsideration of the rule formulated at York, which he maintained 
 to be perhaps too absolute for all contingencies, and stated that his 
 friends only voted for it ia a spirit of concession. 
 
 Mr. J. Langlois was opposed to Rule IV., because the captain 
 was thus likely U) think of his own interest rather than of the 
 general interest, aiid he asked for the reasons which had induced 
 the proposition oi Rule IV. 
 
 Dr. Raiiusen thought that, when a thing which is overboard is 
 cut away, the thing is already lost. It was not just to allow, as 
 was done in Holland and in Belgium, the half of the value already 
 lost. A mast which hangs alongside overboard, held to the ship 
 only by a few ropes, was a lost mast. From another point of view, 
 Dr. Rahuseu went on, the captain, whose vessel was insured, would 
 be tempted to modify his protest according to circumstances if the 
 article was rejected. 
 
 Mr. Hopkins admitted that Rule TV. was harsh, but it seemed 
 dilTiciilt to do otherwise, and it is !i]i])li('d in England.
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 220 
 
 ^lu. Mii)i)LKi5Ei{G, of Copenhagen, Mk. Wjnge, of Cliristiunia, 
 and Mr. Van Pehukcii all supported the rule. 
 
 Mh. 1L\tiii!unk remarked thai, in order to accept it, one must be 
 imbued with the general s])iritof the rule, in virtue of which there is 
 no sacrifice when the cause itself of the danger is to be sacriliced. 
 
 Mk. J. Lancjlois insisted on the objections which he had offered. 
 If one does not give compensation for the mast which has been 
 cut away, one should do so for the sails, yards, ajid so on, that are 
 sacrificed at the same time. 
 
 Mr. Jacobsen pointed out that in these cases the sacrifice 
 which the captain nuide was compulsory, and not voluntary, which 
 is of the essence of (General Average. 
 
 Rule IV. was then put to the vote, and adopted unanimously. 
 
 The committee now adjourned till two p.m. On its reassembling 
 at that hour the chair was taken by Lord O'Hagan, who has since 
 died, to the regret of his friends and admirers. 
 
 His lordship, who was supported by Sir Travers Twiss, Messrs. 
 E, E. Wendt, Meier, Engels, Charles Clark, and Van Peborgh, 
 read llule V,, of which the following is the text : — 
 
 ' IluLE V. Voluntary Stiundiiig. — When a ship is intentionally 
 run on shore because she is sinking or driving on shore or rocks, 
 no damage caused to the ship, the cargo, and the freight, or any 
 or either of them by such intentional running on shore, shall be 
 made good as General Average.' 
 
 Mr. Natusch proposed, and Mr. Rathbone seconded, the rule, 
 which was unanimously adopted. 
 
 Lord O'Hagan now read Rule VI. It is thus conceived : — 
 
 ' Rule VI. Carrying Press of Sail. — Damage occasioned to a 
 ship or cargo by carrying a press of sail shall not be made good as 
 General Average.' 
 
 This rule, proposed by Mr. Murray, and seconded by Dr. Wek- 
 TIIEIM, was carried nemine contradicenie. 
 
 Lord O'Hagan then read Rule VIL, which was couched as 
 follows : — 
 
 ' Rule VII. Tort of liefuge Expenses. — When a ship shall have 
 entered a port of refuge under such circumstances that the ex- 
 penses of entering the port are admissible as General Average, and
 
 230 MARITIME LEGISLATION. 
 
 when she shall have sailed thence with her original cargo, or a 
 part of it. the corresponding expenses of leaving such port shall 
 likewise be so admitted as General Average ; and whenever the cost 
 of discharging cargo at such port is admissible as General Average, 
 the cost of reloading and stowing such cargo on board the said 
 ship, together with all storage charges on such cargo, shall likewise 
 be so admitted. Except that any portion of the cargo left at such 
 port of refuge, on account of its being unfit to be carried forward, 
 or on account of the unfitness or inability of the ship to carry it, 
 shall not be called on to contribute to such General Average.' 
 
 Mr. Hach proposed the suppression of the last sentence in the 
 rule beginning, ' Except that any portion of the cargo.' Mil. Meiek 
 seconded this amendment. 
 
 Mr, Hopkins remarked that this article was one of the most 
 important. From the English point of view the responsibility of 
 the freight entered into the reckoning as an element of appreciation. 
 
 Mr. Schneider, of Bremen, then read the following extracts 
 from his work on the subject : — 
 
 ■ Section VII. Expenses and losses in a port of refuge shall be 
 adjusted as General Average in the following cases only: 
 
 (a) When a vessel has entered for necessary repairs of damage 
 voluntarily caused to it in the interest of all concerned ; 
 
 (I)) When a vessel has entered in order to escape from hostile 
 men of war ; 
 
 (r) When a vessel has entered for the purpose of waiting for 
 instructions from the parties concerned, in case the port of 
 destination is under hostile sway. 
 
 ' Neutral goods shall, however, be free from contribution in the 
 cases h and c. 
 
 ' If a vessel, making for a poi-t of refuge, is captured or perishes 
 before having reached the port, each party bears its loss, although 
 ])art (jf the cargo may have been saved in lighters. 
 
 'XoCJcncral Average ensues from entry into another port in 
 case the ]ioil of (lest iiiat ion is lilockaded by rriendly forces or from 
 detention by suju'rior might. 
 
 'The expenses and losses in a poit of I'eJ'iige are, with reference 
 to repartition in particular cases, to be distinguished as follows : — 
 
 {
 
 INTJaJXATIOXAL LAW OF GEXEKAL AVERAGE. 2.]l 
 
 ' ] . Expenses payable on the vessel's entry or departure. 
 
 ' 2. Liyrhterajje und d;iin!io-o or loss sustained in the act of 
 lighteniii'^ the vessel. 
 
 ' 3. Expenses of discharging and reloading, and of carriage and 
 warehouse rent, in case the vessel must be discharged for the 
 pui-pose of repairs. 
 
 '4. Wages and maiiifcnance of the .ship's equipage during 
 detention. 
 
 ' 5. P^xpenses of procuring money for defraying tlie charges 
 incurred. 
 
 ' If a vessel, after having reached a port of refuge, is not held 
 worth repairing, the expenses and losses mentioned under 1 and 2 
 only shall be distributed as General Average. 
 
 ' In case a vessel has entered a port of refuge for repairs of 
 Particular Average the expenses under 1 and 4 shall be borne by 
 the ship, the items under 2 and 3 ratably by the cargo, those 
 under 5 by the parties for whose benefit the money has been 
 expended. 
 
 ' In case a vessel has entered a port of refuge for repairs of 
 General and Particular Average the expenses incurred shall be 
 divided in proportion to the importance of each description of 
 average and be distributed as before stated.' 
 
 Sir Tr avers Twiss proposed in the first place to discuss the 
 amendment of Mr. Hach, which was then supported by ]\Ir. 
 Lowndes, and regarded from various points of view by Messrs. 
 Baily, Hillman and Nesbitt. 
 
 Mr. Coudert, of New York, brought to mind the reasons for 
 which, by nmtual concessions, the resolution of York had been taken, 
 and did not believe that it was necessary to give them up any more 
 tliau the exception which Mr. Hach desired by his amendment to 
 suppress. 
 
 Mr. Jacohsex sul)mitted some arguments in fjivour of the reso- 
 lution of York, but neither did he admit the exception. 
 
 Dr. Bredius, of Dordrecht, saw a contradiction between the 
 exception at the end of the rule and the other part of it. ' The 
 rejection of tliat exception,' he said, ' would be an injustice to- 
 wards the ship, when a portion of the cargo is not suitable for
 
 232 MARITIME LFXilSLATION. 
 
 reloading; and in case of tLe incapacity of the sliip to take this 
 cargo again on board, the former is already affected with the loss 
 of its freight.' 
 
 Mr. Meier did not approve the point of view taken up by 
 Mr. Coudert, but thought that the exception should be suppressed. 
 
 In reply to the observation of a member, Sir Travers Twiss 
 observed that the final words, ' such General Average,' refer only to 
 the case of ' reloading and stowing such cargo on board the same 
 ship.' 
 
 After some observations had been made by Mr. Griffith, Loijd 
 O'IIagax put the amendment, which was carried by 31 votes 
 to 13. 
 
 Mr. Schneider proposed to substitute section 7 of his report 
 for Rules YII. and VIII., but found no support. 
 
 Lord O'Hacjan then put it that Rule VII., omitting the last 
 paragi'aph, be approved and adopted. This proposal was accepted 
 by 39 votes. 
 
 Lord O'Hagan then read Rule A^IIL, which runs as follows : — 
 
 ' Rule VIII. Wages and Mamtenance of Crew in Port uf 
 liefufje. — When a ship shall have entered a port of refuge under 
 the circumstances defined in Rule VII., the wages and cost of 
 maintenance of the master and mariners, from the time of entering 
 such port until the ship shall have been made ready to proceed 
 upon her voyage, shall be made good as General Average. Except 
 that any portion of the cargo left at such port of refuge on account 
 of its being unfit to be carried forward, or on account of the unfit- 
 ness or inability of the ship to carry it, shall not be called on to 
 contriljute to such General Average.' 
 
 Mr. Rathhonk moved, and ])r. Rahusen seconded, the adoption 
 of this rule. ]\lj{. Hacii })roposcd the omission of all words from 
 tlic word ' exce])t,' and I)k. 15j{EDIUS seconded him. The amciul- 
 iiifiit was carried by 32 votes to 2. 
 
 Mk. Nksiutt, however, o]i])osed the wliolc nilc. and proposed the 
 insertion ol" the word ' not between 'shall uiid 'be math' in the 
 final clause of the iMiiemliil I'lilc. 
 
 ^In. ?^Ii;iKl{ remarked thiit tlii>-|ioihl \\;is ofgi-eai importance for 
 the relations between slii|;o\Mieis antl jji.-uier.^. Tolicies could be
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 2.33 
 
 easily effected at Lloyd's with the clause to pay according to 
 foreign General Average statements. Now the expenses foreseen 
 in Rule VII. are providi'd for thus, and Lloyd's have never raised any 
 difficulties. It was astonishing that, although they continued to 
 insure every day on such conditions, they came now into that room 
 and declared lure the whole suljject of General Average to be a 
 calamity. 
 
 Mr. JoiLV (iLOVEKsaid, as a delegate of the English shipowners, 
 that his clients did not ask for the protection of English insurers. 
 He added that there could not be any temptation for captains to 
 prolong their stay in ports of refuge, because the loss of time to 
 steamers was so considerable that reimbursement of the crews' ex- 
 penses was as nothing in comparison to it ; and opinion in England 
 had long ago got the upper hand of the law on this point. In 
 mutual assurance clubs wages were always allowed. 
 
 Mil. Cappek, representing the shipowners of the Bristol Chan- 
 nel, strongly supported the remarks of Mr. Glover. 
 
 Mr. Hillman observed that, of course, Lloyd's could not exist 
 if they refused to grant policies with such clauses as agreed with the 
 foreign practice. In reply to other speakers, Mk. Hillman de- 
 clared that if the principle of this reimbursement was just, it 
 should be further extended and allow also for the loss suffered 
 through detention, interest, &c., and with regard to the usages 
 of mutual assurance clubs, it could not be denied that they existed 
 under very peculiar circumstances. 
 
 Mr. Rathbone thought that Rule VII. contained a concession, 
 and confined itself within very wise limits. Lloyd's should congra- 
 tulate themselves that these concessions were not carried to a wider 
 extent. 
 
 Mr. Coudert was astonished to hear continual allusion made 
 to the fear that the bad conduct of captains inspires. In his 
 country these fears do not exist, and one would blush to be per- 
 petually discussing on the hypothesis that maritime and commercial 
 interests are constantly exposed to danger in the hands of captains. 
 He was then for the full payment of wages. 
 
 Mr. Nesbitt's amendment, which was supported by the dele- 
 gates from Lloyd's, was then rejected by 10 votes to G.
 
 234 MARITIME LEGISLATION. 
 
 Mr. Lo'V^'NDES proposed to add the following words : ' Deduct- 
 ino-, however, anv saving in the expense actually made, or which 
 ought to be made, by paying off the crew, or any portion of tlieni, 
 at the port of refuge.' 
 
 Mr. Rathbone seconded this amendment, and Mr. Hach 
 opposed it. 
 
 One member of the committee remarked on the impossibility 
 and danger of having the conduct of the captain on this point 
 estimated by a third person. Besides, it was not in harmony with 
 the general rule, according to which every captain who engaged a 
 crew was bound to bring it home again unless authorised to pay it 
 off, or unless the paying off took place by common consent. One 
 could not then raise the objection that the captain would have been 
 able at a certain moment to pay off his crew. 
 
 Mr. Lowndes's amendment was rejected, only four members 
 voting for it. Rule VIII. was then put by Lord O'Hagan as 
 originally proposed, and carried by 45 votes to 5. 
 
 Lord O'Hagan then submitted for consideration 
 
 'Rule IX. Damage to Cargo in Discharging. — Damage done to 
 cargo by discharging it at a port of refuge shall not be admissible 
 as General Average in case such cargo shall have been discharged 
 at the place and in the manner customary at that port with ships 
 not in distress,' which was moved by ]\Ir. Coudert and seconded 
 by Mr. Rathbone. 
 
 Mr. Manley Hopkins proposed that the rule should be altered 
 to : ' Damage done to cargo by discharging it at a port of refuge 
 BJiall be admissible as General Average.' This was seconded by 
 Mr. Langlois. 
 
 Mr. Glover thought there was reason for not losing sight of 
 the fact that the discharging might cause material losses which 
 (•(juld not l)i- ciiiit'oiinded with such arrangement as one probably 
 had ill \if\v. 
 
 Mr. Hoi'KiNS explained that discliarging a cargo in a port of 
 refuge was always tlio cause of an additional loss. Mr. Griffith 
 stronglv objected to the aiin'iKliiicnt. 
 
 .Mi;. Ivn(;):i,s uiaintaiiird that flic large number of claims for 
 losses on iiK-rchandi^e discharged in a harbour of refuge rendered
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 235 
 
 (lesirabk' tlu- iiKiintcnauce of Rule IX. in the form in winch it is 
 proposed. 
 
 The tuiieiidment was then pnt and lost by a large majority, 
 37 being against and 8 for it. The original York rule as first 
 read was then submitted to the committee by Lord O'Hagan and 
 adopted by 10 votes to 3. 
 
 Some members here proposed that the sitting should terminate, 
 but the majority decided to proceed to the examination of the two 
 last York rules. 
 
 Lord O'Hagan then read 
 
 ' Rule X. Contribxtori/ Values. — The contribution to a General 
 Average shall be made upon the actual values of the property at 
 the termination of the adventure, to which shall be added the 
 amount made good as General Average for property sacrificed ; 
 deduction being made, from the shipowner's freight and passage- 
 money at risk, of two-fifths of such freight, in lieu of crew's wages, 
 port charges, and all other deductions ; deduction being also made, 
 from the value of the property, of all charges incurred in respect 
 thereof subsequently to the arising of the claim to General 
 Average.' 
 
 Dr. Rahusen proposed, and Mr. Rathbone seconded, the 
 adoption of this rule. 
 
 Mr. Hach, seconded by Mr. Meier, proposed that the following 
 clauses be substituted for Rule X. : — 
 
 ' The cargo contributes with the actual net value of the goods 
 at the end of the voyage, deducting the then still existing value 
 of those repairs and supplies which have been made after the 
 casualty. 
 
 ' The freight contributes wdth two-thirds of its gross amount 
 (eventually to concede three-fifths, or even one-half). 
 
 ' To all these contributing values is to be added the amount 
 made good in General Average objects sacrificed.' 
 
 And after having gone into the reasons for their proposal, 
 which were further elucidated by Messrs. Jacobsen, Lowndes, and 
 Bailv, ^Ir. Hach's amendment was rejected by 28 votes to 8. 
 
 ^Ih. ("ornKRT, seconded by Mr. Hii-T-Man, proposed the follow- 
 ing amendment : ' Freight contributed for must contribute at
 
 2.3G MARITIME LEGISLATION. 
 
 the rate contributed for/ wliich was opposed by Mr, Lowndes 
 and Mr. Baily and rejected. Mr. Loavndes, supported by Mr. 
 Driebeek, then proposed : 
 
 ' That Eule X. be amended by the omission of the words " two- 
 fifths of such freight in lieu of crew's wages, port charges, and all 
 other deductions ; " and, in their place, that the following words be 
 inserted : "such port charges and crew's wages as would not have 
 been incurred had the ship and cargo been totally lost at the date 
 of the General Average Act or sacrifice." ' 
 
 After some remarks from Mr. Baily and Mr. Glover, the 
 President read the rule and the proposed amendment, and there 
 were 28 against and 11 for the amendment. 
 
 Lord O'Hagan then put to the meeting, ' That the rule as 
 altered by Mr. Lowndes's amendment do pass,' and it was carried 
 unanimously. 
 
 Lord O'Hagan then read 
 
 ' Rule XI. Loss of Freight. — In every case in which a sacri- 
 fice of cargo is made good as General Average, the loss of freight 
 (if any) which is caused by such loss of cargo shall likewise be so 
 made good.' 
 
 ^hi. CouDERT proposed, and Mr. Glover seconded the rule, 
 and it was thereupon unanimously adopted. 
 
 On Saturday, September 1, the chair of the General Average 
 Committee was taken by Mr. Th. Engels, who was supported by 
 Messrs. Wendt, Meier, and Van Peborgh. 
 
 The Honorary Secretary to the Committee, Mr. J. Rand 
 Baily, read over the eleven rules approved and adopted on the 
 previous day. 
 
 Mr. Col'DERT proposed, and Mr. Ratiibone seconded, 'That 
 tlic rules as now read are accurate, and sliould be adopted.' 
 
 Dii. JiAiirsK.N jjfoposcd tliat these rules, which will hereafter 
 be known as the ' Rules ol" Aiit\ver|»," should be officially translated 
 into I'Vench. 
 
 .Mk. liATlIliONE proposed that the new rules should be named 
 ' TIh' ^'ork Rules, aineiidi'd at Antwerp.'
 
 INTERNATIONAL LAW OF GEXERAL AVERAGE. 237 
 
 Mr. Meier was of opinion that the English text should remain 
 the official one, and that local committees should charge themselves 
 with the duty of making good translations of it, which would after- 
 Avards be communicated to the general council, and the general 
 council, in case of doubt as to the sense, would make its observa- 
 tions on it. 
 
 Mr, Langlois asked tliat the English text should be always 
 joined to the translated text. Errors, for example, had Ijeen com- 
 mitted in Belgium in the application of the rules as to collisions, 
 because the French text was incorrect, and the errors had only 
 been put right when the English text was produced in a court of 
 justice. 
 
 Mr. Engels thought that this junction of the texts would be 
 difficult in its official application. 
 
 Mr. Baily added that this was a question entirely for the 
 interested countries. 
 
 The discussion having dropped, the Chairman called upon Mr. 
 Hach to bring forward the additional rules suggested by the 
 German Committee, upon which Mr. Hach suggested that the 
 rules now agreed to should be preluded by a clear definition of 
 General Average, and proposed the addition of a rule in the terms 
 of Art. 702 of the German Commercial Code, page 3 of the Report 
 of the German Committee, as follows : — 
 
 ' All damage intentionally done to ship or cargo, or both, by 
 the master, or by his orders, for the purpose of saving both from a 
 common danger, together with any further damage occasioned by 
 such measures, and likewise expenses incurred for the same pur- 
 pose, are General Average. General Average is borne by ship, 
 freight, and cargo conjointly.' 
 
 Dr. Rahusen considered it dangerous to formulate a gene- 
 ral definition of General Average, and criticised the German 
 formula. 
 
 Mr. Hopkins added that, if this path were entered on, the de- 
 liberations would last some days longer. 
 
 Mr. Capper also thought that it was not prudent to discuss 
 what General Average should be ; the congress had assembled to 
 endeavour to make alike everywhere the laws on General Average,
 
 233 MARITIME LEGISLATION. 
 
 and in no way to discuss the definition and character of General 
 Average. 
 
 Mr. Meier considered that the York rules being far from com- 
 prising the greater part of the rules which present themselves in 
 practice, it was, on the contrary, very wise to lay down a general 
 principle, as had been done in the code of German commerce, 
 for in defining only particular cases one exposed the Judges 
 to the difficulty of having no sound rule of conduct in cases not 
 foreseen. 
 
 Mr. Griffith thought that, after having at York suppressed 
 certain differences of detail between the usages of different countries, 
 the Germans did well to seek to establish general principles, thus 
 laying the foundations of the building before erecting it. It was, 
 therefore, only a question to know if the proposed formula was 
 good or incorrect, and whether it is within the province of the 
 present labours of the congress to proceed to the examination 
 of it. 
 
 Mr. Lowndes said he considered that it would be impracticable 
 and undesirable to attempt a definition. The rules, as being dis- 
 cussed, did not pretend to be a code, but only rules as to certain 
 points on which countries differed. 
 
 Mr. Coudert agreed with him, 
 
 Mr. Yax Peborgh was of opinion that general definitions were 
 necessary and proposed a formula. 
 
 ]Mr. Laxglois supported the formula of the German code. 
 
 Mr, Nesbitt was disposed to adopt a good definition, 
 
 ]VIr, Engels submitted to the assembly the previous question : 
 Should a definition be given or not ? 
 
 After Mr. Baily had made some objections, Mr. Gaemaere 
 remarked that the assembly could not settle absolutely and generally 
 the (jurist ion whether there was room for the introduction of a defini- 
 tion into the law or not ; at the most it could declare whether it 
 judged it opportune at the moment to express itself on that question. 
 }fe asked the assembly tlierefore simply to decide that it does 
 not judge it necessary to iuU\ at this moment to the ^'ork rules a 
 definition of General Averages 
 
 Mr. Hach's motion was reiocted bv a l!ir<re mnioritv.
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 289 
 
 The Chairman luiving asked if there were any furtlier proposals 
 to add to the rules, Mr. Hach proposed to add a rule in the follow- 
 ing words : — 
 
 * Average contribution takes place only when both ship and 
 cargo, wholly or in part, have been actually saved.' 
 
 Mr. Baily requested ]\lr. Hach to explain what was meant by 
 the word 'actually,' a word which bethought would cause difference 
 of opinion. 
 
 Mr. Hach agreed to substitute the word ' ultimately.' Mr. 
 Meier seconded the amended motion. After some discussion, in 
 which Messrs. Manley Hopkins, Jacobsen, and Rahusen took 
 part, Mr. Lowndes proposed the previous question. He considered 
 the proposed addition involved the question of what was the 
 ultimate ability of an owner, which would lead to great difficulty 
 and danger. 
 
 Mr. IIathbone supported Mr. Lowndes's motion to propose the 
 previous question. 
 
 Mr. Langlois agreed with the preceding speakers in finding 
 the rule bad, or at least dangerous ; but he would not support the 
 previous question, because it was well to bring back the Germans 
 from their error. 
 
 Mr. Coudert would also find utility in discussion, solely as the 
 Germans do not themselves understand their law, and because at 
 this very moment they had altered the most important term in it. 
 He thought there was reason for opposing the previous question , as 
 one found oneself, in effect, in the presence of two different traps. 
 
 Mr. Baily judged it opportune to prove to the Germans all 
 that was defective in their law. 
 
 Dr. Sieveking, of Hamburg, gave an explanation of the word 
 ' actually,' 
 
 On an observation of Mr. Coudert the German delegates with- 
 drew the word ' ultimately.' 
 
 After Mr. Lowndes had withdrawn his motion to propose the 
 previous question, Mr. Winge quoted several cases to show how 
 disadvantageously the German law had worked. Mr. Baily moved 
 thereupon, as an amendment, that the following rule be added in 
 the place of that proposed by Mr. Hach : —
 
 240 MAmriME LEGISLATION. 
 
 ' Whenever tliere is not any pecuniary benefit, or wlien the 
 pecuniary benefit is less than the expense caused by a General 
 Average act, the excess of that expense over that benefit shall 
 be apportioned over the benefits which at the time when the 
 General Average was performed it was intended that it should 
 produce.' 
 
 Mk. Nesbitt seconded this. 
 
 Mr. Van Peborgh opposed this amendment, as contrary to the 
 general principle of most nations that value saved is the limit of 
 the contribution. 
 
 Dr. Rahusen invoked the laws on responsibility, and the right of 
 abandonment, which are different in different countries, in opposing 
 the amendment of Mr. Baily. 
 
 Mr. Capper cited the case of a shipowner who had paid all the 
 ex:[3enses of putting in at a port of refuge, and the ship and cargo 
 afterwards perished before arriving at the port of destination ; he 
 asked if the shipowners ought to support all the loss. 
 
 Messrs. Engels and Meier : You shipowners ought to insure 
 your advances. 
 
 Messrs. Baily and Hach declared themselves satisfied if they 
 had succeeded in attracting for the future the attention of compe- 
 tent persons to this important question. Mr. Hach withdrew his 
 motion, and the ChairMxVN put the previous question, which was 
 carried unanimously. 
 
 Mr. Hach then submitted for the acceptance of the committee 
 the following proposition : ' The amount to be allowed for goods 
 sacrificed is computed analogous to the contributory value by the 
 actual net value of the goods in the same quality and condition at 
 the end of the voyage.' 
 
 Mr. Meier seconded the adoption of this proposition ; and, 
 after some discussion between Messrs. Jacobsen and Lowndes, 
 j\Ii{. Bah.y proposed, as an amendment, the adoption of the follow- 
 ing rule : ''J'he value to be allowed for goods sacrificed shall be 
 that value which the owner would have received if such goods had 
 not been sacrificed.' 
 
 Mr. Manley Hopkins seconded, Mr. INFeier opposed, the 
 amendment. Mr. Hathbone was of opinion that, if Mr. Meier's
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 2J1 
 
 view were adopted, the owners of jettisoned goods would be placed 
 in a better position than tlui own^-r of other goods. 
 
 The Chairman put Mr. Buily's amendment, which was carried 
 by a majority of ol to 7. Tlun-eupon Mu. llACn withdrew his 
 motion. 
 
 The Chairman then put it to the vote : ' That the words of the 
 amendment of Mr. Baily do form 
 
 ' IluLE XII. Amount to bo made (jood for Cargo. — The value to 
 be allowed for goods sacrificed shall be that value which the owner 
 would have received if such goods had not been sacrificed.' 
 
 This was carried unanimously. 
 
 Mr. Hacu then submitted that 'the amount to be allowed for 
 objects sacrificed of ship and ship's material is regulated by the 
 usages of the port where the average statement is to be made up.' 
 Dr. Rahusen pointed out various objections to this amendment, 
 which Mr. Each then withdrew. 
 
 Mr. Langlois, however, considered the point one which should 
 be argued, and gave notice that he would bring it forward, with 
 some modifications, at the afternoon sitting. 
 
 The committee then at one o'clock adjourned. 
 
 At the afternoon sitting of August 31, commencing at 2.30 
 P.M., M. T. Engels took the chair. He was supported by Messrs. 
 Wendt, Meier, and Van Peborgh. 
 
 Mr. Lowndes, after pointing out the difference between the 
 systems of England and other countries relative to articles replaced 
 or repaired, submitted the following to be added as a new rule : — 
 
 ' When new work replaces old the deduction shall be one-third, 
 subject to the following exceptions, viz. : — 
 
 ' 1. No deduction shall be made during the ship's first year. 
 
 ' 2. Anchors are allowed in full. 
 
 ' 3. Chain-cables are subject to one-sixth only. 
 
 ' 4. In case of repairs at a port of refuge, the deduction shall not 
 exceed one-third of the estimated cost of such repairs at the port 
 of adjustment.
 
 242 MARITIME LEGISLATION. 
 
 ' 5. No deJuctioii to be made for one-third of bottomry premiums, 
 or commissions on advance. 
 
 ' 6. No deduction is to be made from temporary repairs.' 
 
 Mr. Glover opposed the rule as suggested, inquiring if Mr. 
 Lowndes proposed to make anj^ distinction between wooden and 
 iron ships. 
 
 Mr. Lowndes said he would be glad to modify his proposal by 
 introducing such a distinction, but would like to know what was 
 suggested. 
 
 Mr. Meier said it was perfectly ridiculous to want at the end 
 of a year a reduction of one-third on iron ships. The speaker did 
 not wish to make any proposition, because the building of iron 
 ships was of too modern date for one to be able to form a sound 
 estimate. Not to complicate the situation, he was of opinion that 
 the subject should not be touched, otherwise he would propose that 
 there should be no reduction during the five first years, and after- 
 wards a sixth reduction during ten years. 
 
 Mr. Nesbitt said he considered the subject well worthy of 
 discussion, but it could not be entered upon fairly or conveniently 
 at this meeting ; and after further remarks by Messrs. Hillman and 
 Glover, the Chairman put the previous question, which was carried 
 by 34 votes to 4. 
 
 Mr. Ahlers moved the insertion of the following rule : ' Either 
 party whose property has been jettisoned or sacrificed for the 
 common safety has a lien on the interests saved for contribution, 
 A\liich may be enforced by application to the proper tribunal or by 
 retaining possession, where the party entitled to the lien is in 
 possession.' 
 
 Mr. HacH seconded this, and after much discussion by MESSRS. 
 Hahusen, CJlovkh, Hatiiijone, Natuscii, Hillman, Murray, and 
 AiiLERS, the Chairman expressed a doubt whether the suggestion 
 was practicable, as it would be impossible for a merchant to know 
 wlietlier goods of a similar kind saved were his or not. 
 
 The (,"haii{NL\N llirn put llic previous (piestion, which was 
 carried by 2 1 to '.). 
 
 Mi{. Lowndes suggested the, addition of a rule as follows: — 
 
 ' l)an:age done by defending the ship against enemies or pirates.
 
 lNrKUXAT[()XAL LAW OF GENERAL AVi:i!A(iE. 24.J 
 
 auunuuition expended in such defence, and compensation lawfully 
 paid to wounded seamen, are General Average.' 
 
 Which was likewise negatived without discussion, the votes 
 being— for the previous question, 15 ; against, 13. 
 
 Mr. Meier now said that the deliberations on the International 
 Cieneral Average Congress having been concluded, it was time to 
 think of the means most suitable to give practical effect to the 
 rules voted by the congress. His proposition was therefore that the 
 local committees should be moved to take such measures as Ihey 
 think suitable for obtaining the acceptance of the views of the con- 
 gress by their respective Governments, and to rendiT an account to 
 the general council of the result of the steps so taken. 
 
 In this way, by the exercise of every influence they could bring- 
 about, they would eventually succeed in seeing the rules carried 
 out which have actually been voted. 
 
 After Dr. Haiicsen had made some observations to tlie same 
 effect, Mr. John Glover expressed a wish to see the delegates 
 from Lloyd's working for the acceptance of the results of the 
 congress. 
 
 Mr. Natusch seized this opportunity, as a delegate from Lloyd's, 
 to say that he believed he ought to declare that the results of the 
 congress would not answer to the views of the insurers of Lloyd's. 
 They knew this beforehand ; but, invited to the congress, they con- 
 sidered that they would be performing an act of courtesy in sending 
 delegates. He referred to the opinions of Lloyd's, and begged them 
 to understand clearly that delegates from Lloyd's had taken no share 
 in voting the 'Rules of York, amended at Antwerp.' He wound 
 up by returning thanks for the kind reception the delegates had 
 received. 
 
 Mr. Hillmax confirmed the remarks of his colleague. He would 
 inform his constituents that thev did well in sendin<>- delegates to 
 the congress. He was convinced that the labours of the congress 
 would produce good fruit in the future. 
 
 Mr. Rathbone, as President of the Underwn-iters of Liverpool 
 and delegate from the Chamber of Commerce of that town, protested 
 against the remarks of the delegates from Lloyd's, if they assumed 
 to have spoken in the name of the majority of English underwriters, 
 
 i{ 2
 
 214 MARirniE LEGISLATION. 
 
 and declared tliat his constituents in tlie most loyal and complete 
 fashion would endeavour to have passed in use and practice the 
 rules here actually voted. (Applause.) 
 
 He reo-retted that Mr. Baily was not present at this moment, 
 for he would undoubtedly ratify his declaration in the name of the 
 Liverpool shipowners, and it was not, perhaps, needless to add that 
 Mr. Baily represented pboiit 800,000 tons of shipping. (Applause.) 
 
 Mr. Meier's motion was adopted. 
 
 This closed the proceedings of the committee. 
 
 At the suggestion of Mr. Jencken, it was agreed to frame a 
 report, and, in pursuance of the practice of the Association, to 
 submit the resolutions and report to the g'eneral meeting in confer- 
 ence. The members then adjourned into the principal hall, where 
 his lordship was presiding. 
 
 The printed report of the General Average Committee was now 
 submitted to the conference. It ran as follows : — 
 
 ' Your committee adopted as the basis of its discussions the 
 body of rules framed at York in 1864, and known by the name of 
 '• The York Kules." They first revised those rules in detail, and 
 then proceeded to consider what additions, if any, should be made 
 to them. The alterations which your committee have made in the 
 Y''ork rules are as follows : — 
 
 ' 1. The first York rule, which admitted into General Average 
 one kind only of deck-load jettison, namely, that of wood goods, 
 has been altered, and the rule now stands, that "No jettison of 
 deck cargo shall be made good as General Average." 
 
 ' 2. To the third York rule, which provided that damage done 
 by the measures taken to extinguish a fire on shipboard should be 
 treated as General Average, your committee has added the restric- 
 lifjn that no compensation shall be made for damage done by water 
 to ])iiek;igcs wliicli li;i\o biT'U ou fire. 
 
 ' 3. The seventh and eighth '^'ork rules, after providing that, 
 in certain cases, the cost of reloading cargo and leaving a port ot 
 refuge, and the wages and provisions of the crew, whilst in such 
 port, should be fn-atcd as (JcikmiI .\ vcr.Mgc, cxcniitlcd from cdii- 
 I rib'.iti'di lo such <Ii'iier,il .\ver;igi' iiiiy goods dial iiiiglil liave been
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 24.1 
 
 sold at tho port of refuge. Your committee has wiflulrawu 1liat 
 exemption. 
 
 ''i. Whereas the tenlli York rule had based the contribution 
 of freight on tln*ee-fifths of its gross amount, your committee lias 
 considered ihat the gross freight should contribute, subject to the 
 deduction of such port charges and crew's wages as would not 
 have been incurred had the ship and cargo been totally lost at 
 the date of the General Average act or sacrifice. 
 
 ' With these modifications the York rules have been adopted, 
 some of them unanimously and tho remainder by very largo 
 majorities of your committee. After full consideration of a large 
 number of proposed additional rules, your committee has deter- 
 mined to adopt no additional rule, excepting the following, which 
 forms Rule XII. below, viz. : — 
 
 ' " The amount to be allowed for goods sacrificed shall be that 
 value which the owners would have received if their goods had 
 not been sacrificed." 
 
 ' The rules which j'our committee now lay before you as the 
 basis of a uniform system of General Average for all maritime 
 countries, and to which the title might be given of the " York and 
 Antwerp Rules," are appended. 
 
 ' In bringing their mission to a close, your committee, on the 
 motion of Herr Meier, President of the North German Lloyd, 
 unanimously agreed to submit to the conference the following 
 resolution : — 
 
 ' " That the local committees of this association be requested im- 
 mediately to take such steps as they may deem expedient with a 
 view to insuring a consideration of the rules as revised and the 
 favourable attention and action of their respective Governments, 
 reporting the result of such steps to the council of the Association." ' 
 
 The York and Antwerp Rules. 
 
 Rule I. Jettison of Deck Cargo. — No jettison of deck cargo 
 shall be made good as General Average. 
 
 Every structure not built in with the frame of the vessel shall 
 be c<msidered to l)e a ]")iivt lA' tin- drck ol' tlu^ vessel.
 
 24G MAUT'I'DIF. LEGISLATIOX. 
 
 Rule II. Damage hy Jettison. — Damage clone to goods or mer- 
 chandise bv water wliicli unavoidably goes down a ship's hatches 
 opened, or otlier opening made, for the purpose of making a jettison 
 shall be made good as General Average, in case the loss by jettison 
 is so made good. 
 
 Damage done by breakage and chafing, or otherwise from de- 
 rangement of stowage, consequent upon a jettison, shall be made 
 good as General Average, in case the loss by jettison is so made 
 good. 
 
 Rule III. Extinfjuisliincj Fire on Shiphoard. — Damage done to 
 a ship and cargo, or either of them, by water or otherwise, in ex- 
 tinguishing a fire on board the ship, shall be General Average ; 
 except that no compensation be made for damage done by water to 
 packages which have been on fire. 
 
 Rule IV. Cutting avaij WrecJc. — Loss or damage caused by 
 cutting away the wreck or remains of spars, or of other things 
 which have previously been carried away by sea peril, shall not be 
 made good as General Average. 
 
 Rule V. Yoluntarn Stranding. — When a ship is intentionally 
 run on shore because she is sinking or driving on shore or rocks, 
 no damage caused to the ship, the cargo and the freight, or any or 
 either of them, by such intentional running on shore shall be made 
 good as General Average. 
 
 Rule VI. Carri/ing Press of Sail. — Damage occasioned to a 
 ship or cargo by carrying a press of sail shall not be made good as 
 General Average. 
 
 Rule VII. Port of Refuge Expenses. — When a ship shall have 
 entered a port of refuge under such circumstances that the expenses 
 of entering the port are admissible as General Average, and when 
 she shall liave sailed thence with her original cargo or apart of it, 
 the corresponding expenses of leaving such port shall likewise be 
 admitted as General Average ; and, whenever the cost of discharging 
 cargo at such port is admissible as General Average, the cost of re- 
 loading and stowing such cargo on board the said sliip, together 
 with all storage charges on such cargo, sliall likewise be so 
 fidinittcd. 
 
 Ilri.i-, \'lff. W'liiirx mid '^f(li|ll(■|llln(•r r,f Crem in Port of
 
 INTERNATIONAL LAW OF GENERAL AVEnAOE. 247 
 
 Bcfuge. — When a ship shall have entered a port of refuge under 
 the circumstances defined in Rule VII., the wages and cost of 
 maintenance of the master and mariners from the time of entering 
 such port until the ship shall have been made ready to proceed 
 upon her voyage shall be made good as General Average. 
 
 Rule IX. Damage to Garrjo in Blscharginrj. — Damage done to 
 cargo by discharging it at a port of refuge shall not be admissible 
 as General Average, in case such cargo shall have been discharged 
 at the place and in tlie manner customary at that port with ships 
 not in distress. 
 
 Rule X. Contributory Values. — The contribution to a General 
 Average shall be made upon the actual values of the property at 
 the temiination of the adventure, to which shall be added the 
 amount made good as General Average for property sacrificed ; 
 deduction being made from the shipowner's freight and passage - 
 money at risk of such port charges and crew's wages as would not 
 have been incurred had the ship and cargo been totally lost at the 
 date of the General Average act or sacrifice ; deduction being also 
 made from the value of the property of all charges incurred in 
 respect thereof subsequently to the arising of the claim to General 
 Average. 
 
 Rule XI. Loss of Frei(j]tf. — In every case in which a sacrifice 
 of cargo is made good as General Average, the loss of freight, if 
 any, which is caused by such loss of cargo shall likewise be so 
 made good. 
 
 Rule XII. Ainmmt to he made good for Cargo. — The value to 
 be allowed for goods sacrificed shall be that value which the owner 
 would have received if such goods had not been sacrificed. 
 
 The report having been read by Mr. J. Rand Baily, ]\Ir. 
 E. E. Wendt, of London, moved : — 
 
 'That the York and Antwerp Rules be adopted and filed with 
 the minutes of this congress.' 
 
 The motion was seconded by IMr. Richard Lowndes, of Liver- 
 pool, and carried unanimously. 
 
 Lord O'Hagan, in the course of his valedictory address to the 
 conference, remarked that ' he had been present at the deliberations 
 of the legislative bodies of the gi-eater number of tlie states of
 
 248 MARITDIE LEOISI-ATIOX. 
 
 Europe, but in no assembly liad lie ever heard questions debated 
 with such earnestness, such cogency of logic, and such ease and 
 }3recision of language as in the General Average committee-room. 
 Nor was the reason far to seek ; for in that room were gathered 
 together those who knew most about the subject in hand, and 
 whose interests would be most affected by the issue of the dis- 
 cussions.' 
 
 The fifth annual conference of the Association for the reform 
 and codification of the Law of Nations broke up on Monday, 
 September 3, 1877, and on that day the following letter was for- 
 warded by the representatives of Lloyd's, before leaving Antwerp, 
 
 to the secretary : — 
 
 ' Antwerp : September 3, 1877. 
 
 ' Sir, — We, the representatives deputed by the Committee of 
 Lloyd's, on the invitation of the Committee of your Association, to 
 attend the meetings, this day terminated, of the General Average 
 section of the conference, request that it may appear in the protocol 
 of the proceedings that we expressly declared that we had no in- 
 tention, by our presence or otherwise, to accept, on behalf of our 
 constituents, the decisions arrived at by the section, but that, on 
 the contrary, we protested, on behalf of the Committee of Lloyd's, 
 against certain of those decisions, and reserved the rights of our 
 constituents in every respect. — We are. Sir, 
 
 ' Your obedient Servants, 
 
 f F. B. B. Natusch, 
 (Signed) < ^ ^^ , 
 
 ^ ^ L Joseph Hillman. 
 
 ' II. D. Jencken, Esq.' 
 
 It can scarcely be a matter of surprise that, as soon as 
 serious steps were taken to give practical effect to tlie 
 York and Antwerp Rules by tlieir embodiment in charter 
 parties, bills ol' ladinij-, nnd policies of insurance, an op- 
 position was organised ])y those who either were antago- 
 nistic to all changes or had been induced by those members 
 f>^ tlio Commit ( Of of Tilr»vd's who tliou^dit that claims of 
 (ieiieral Averages might be got ]'id of altogether, to join 
 in the general outcry against this innovation.
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 249 
 
 It cannot, however, be of any lasting good to r('pul)lisli 
 the nuiUifarioiis correspondence which the public press con- 
 tained on this snbject after the conference and until March 
 1879, because only arguments were advanced which had 
 over and over again been stated and refuted, and it is, 
 therefore, my intention to confine myself to print in the 
 following pages only so much from the reports presented 
 at different congresses of the Association for the Eeform 
 and Codification of the Law of Nations as will be neces- 
 sary in order to bring the history of this movement down 
 to the present day. 
 
 I may, therefore, begin with c[uoting from the Eeport 
 of the General Average Committee presented to the Con- 
 ference at Frankfort-on-Main on August 21, 1878, which 
 commenced by recapitulating some historical facts to the 
 above referred to concluding resolution at the Antwerp 
 Congress, and then proceeded as follows : — 
 
 In pursuance of this direction, this Association has since that 
 date employed all the means at its disposal to bring the matter 
 before the Governments of the different European states and to 
 stimulate the action of the various local committees which have 
 been formed at the principal European ports for the purpose of 
 insuring the adoption of the new rules. In England the conduct 
 of this question was entrusted in the first instance to the General 
 Shipowners' Association. Early in May the General Shipowners' 
 Association convened a meeting of shipowners, underwriters and 
 others and invited them to form a committee. On May 30 a 
 general meeting was held at the Cannon Street Hotel, and, a 
 committee having been formed, the following resolutions were 
 passed : — 
 
 1. 'That in the opinion of this meeting it is desirable that 
 the York and Antwerp Rules of General Average be carried into 
 operation.' 
 
 2. 'That in the opinion of this meeting the most effectual
 
 230 MARITIME LEGISLATION. 
 
 mode of procedure will be by n general agreement on the part of 
 shipowners, merchants, and underwriters to insert in bills of lading 
 and charter-parties the words, '• General Average, if any, payable 
 according to York and Antwerp Rules,'' and in policies of insurance 
 to add to the foreign General Average clause the words, " or York 
 and Antwerp Rules,'" so that the clause will run thus : " General 
 Average payable as per foreign adjustment (or custom) or York 
 and Antwerp Rules, if so made up." ' 
 
 3. ' That a definite date should be fixed for the proposed 
 change ; and the date recommended by this committee is January 
 1, 1879.' 
 
 The committee has adopted the name of the ' English Central 
 Committee.' It has issued a report, and its action has been most 
 energetic. Steps have been taken to place in the hands of every 
 shipowner, underwriter, and merchant in Great Britain a copy of 
 the report. 
 
 It is satisfactory to be able to state that a large number of 
 underwriters, shipowners, and merchants have already given in 
 their adhesion, and it is confidently believed that by the close of 
 this year the rules will be all but universally adopted. 
 
 Whilst the English Central Committee has thus with untiring 
 perseverance pursued its course, supported by the Shipowners' 
 Association, the Chamber of Shipping and the powerful commercial 
 and shipping interests centred at Liv^erpool, the maritime states of 
 the Continent and the great maritime ports of the United States 
 have not been behindhand in evincing a lively interest in what 
 was doing. A brief summary of what has been done will now be 
 furnished. 
 
 Germanij. — The i^remen Committee on General Average has 
 been very industrious. On October 30, 1877, the President of 
 the German Branch Association, llerr II. H. Meier, addressed a 
 memorial 1o tlic Chancellor of the fJerman Empire (Prince Bis- 
 marck), calling attention to the desiralileness of having the York 
 and Antwerp Rules introduced into the (ierman Commercial Code. 
 Tiiis liiciiioi-ial was rollnwcd l)y .'i pctilioii, dated Maivh IG, 1878, 
 ])resented by the Internal ioiial Traiispdvt Insurance Association of 
 lierlin to the German Reichstag, i)rayiiig that the law of Germany
 
 INTERNATIONAL LAW OF GKNLIJAL AVERAGE. 201 
 
 iniglit be ultored by adopting (with, of course, necessary modifica- 
 tions) the York and Antwerp llules ; finally, the delegates of the 
 North (u'nuan ports and commercial cities have ])resented a 
 memorial, dated IMay 22, 1878, to the German Government, 
 a])proviug and recommending the adoption of these rules. Ac- 
 cording to communications received from HeiT Theodor Hach, it 
 .appears that the coui'se iiiiendeil to !)(> pursued by llie (Jerman 
 Branch Committee is to follow the lead of England, but not to 
 talvo the initiative. 
 
 The XcfJierlands. — This wealthy maritime state, with its vast 
 shipping interests, has been likewise active. At the Antwerp 
 Conference the Shipowners' and Underwriters' Associations and 
 the great llandehmaaUcliappij of Holland were represented by 
 Dr. Rahusen, who took a prominent part in the proceedings. In 
 the month of January 1878 a report' on the York and Antwerp 
 Rules, drawn up by Dr. Rahusen, Avas presented to the Dutch 
 Committee at Amsterdam and adopted, and at a meeting held in 
 that month the following resolutions w^ere voted : — 
 
 1 . ' That it is highly desirable for shipowners and underwriters 
 that the York and Antwerp Rules be adoj^ted by all maritime 
 nations.' 
 
 2. ' That this Committee address the Dutch Government and 
 state to it the usefulness of the adoption of these rules to Holland 
 and other maritime nations.' 
 
 Subsequently a memorial was addressed to the Government of 
 the Netherlands by the members of the Dutch committee, calling 
 attention to the York and Antwerp Rules and recommending that 
 steps should be taken for embodying them in the commercial code 
 of that country. 
 
 Behjium. — In this country, since the date of the September 
 Conference, great activity has been displayed in regard to the rules. 
 The ' Societe Commercielle et Industriclle ' of Antwerp, wdiich at 
 present has taken the place of the extinct Chamber of Commerce, 
 has energetically taken up this matter. Early in the year a com- 
 mittee was appointed, consisting of Messrs. Th. C. Engels, E. van 
 
 ^ Verslag van de Vergaderingen over de Internationale Avarij grosse 
 Begeling, gchoudcn te Antweri^en, door E. N. Bahuscn.
 
 2r,2 MARITIME LEGISLATION. 
 
 Peborgh and G. Berdolt, to take steps to bring the sultject to tlio 
 attention of the Government of that country. The committee has 
 placed itself in communication with M. Bara, Minister of Justice 
 for Belgium, and has called his Excellency's attention to the York 
 and Antwerp Rules, suggesting that the ' Code de Commerce ' of 
 Belgium might be altered so as to embody tliose rules. The 
 Minister, we are informed, has given a favourable reply and 
 jDromised to have this question investigated. 
 
 Sweden and Norway and DenmarTi} — All these three countries 
 were represented at the Antwerp Conference. At the seaports of 
 Copenhagen,^ Gothenburg, and Cliristiania committees have since 
 been formed for the purpose of bringing this matter before their 
 respective Governments. It is understood that their request is 
 sure to meet with a favourable reception. For the present, the 
 measures taken by these Governments in passing a common law on 
 bills of exchange have, it is understood, absorbed their entire 
 attention, and, until the report of the International Committee 
 on Bills of Exchange has received the sanction of the Legislatui-e of 
 these kingdoms, the question of creating a common law for General 
 Average losses will have to remain in abeyance. 
 
 Whilst these active measures have been taken in the states 
 named, a lively interest in tliis question has been evinced in 
 Austria^ the matter having been submitted to the Government of 
 that Empire by the Consul-General, the Chevalier Dr. Karl von 
 Scherzer. 
 
 In Trance the attention of the Ministry has likewise been 
 directed to this question, the Government of the Netherlands having 
 Jjeen requested by the French Government to furnish them with a 
 i-eport on the York and Antwerp Ilules. M. de Courcy, of l\aris, 
 has reported most fixvoural)ly on these rules, pointing out that, as 
 regards Italy and France, their adoption will not prove an insur- 
 iiiountaldc difnciilty ; Ihat, in fact, these rules constitute a fair com- 
 
 ' Sec Reports of Hcrr Axel Win^jo, Dccoinber 1877. 
 
 '^ Mr. L. M. llvidt, of Cojjonliafjcu, has hy loltor furnished .a valnahle 
 Kurnmary of the law in Denmark ; cxitressinf^ liis Ijelicf tliat, as (lie York and 
 Antwcrii Rules only slij^litly differ from tlic law of Dciuniiik, tlicir adoption 
 may be regarded as all but certain.
 
 IXTERNA'IIDXAL LAW OF GENERAL AVEltAGK. L>o3 
 
 promise between the English and Conliuontal systems. Valual^lo 
 contriljutious on tliis question have also been made by J\Ir. V. 
 Labraque IJordenave, ' 
 
 rniied ,'Statt'S uf America. — Having thus far given an account 
 of what has been done in Europe, it becomes necessary to state the 
 course that has Ijeen pursued in the United States of America. 
 At the Antwerp Conference the Chamber of Commerce of New York 
 and the Boards of Underwriters of that city and New Orleans were 
 ably represented by Mr. F. R. Coudert; the Boston and Phila- 
 delphia Underwriters' Associations having communicated by letters 
 their views in regard to the adoption of the York Rules. The 
 favourable reception of the York and Antwerp Rules in that country 
 was thus in part assured, and the hopes originally entertained as to 
 their approval there have been fully realised. Mr. F. R. Coudert, 
 in his report '^ on the York and AntweqD Rules, has not only pointed 
 out the utility of the rules, but has shown that practically the law 
 of the United States recognises the principle upon which they are 
 based. 
 
 Several influential meetings have been held in New York, 
 Boston, and Philadelphia, at which substantially these rules have 
 been approved of. The Underwriters' Associations of New Orleans, 
 and the Maritime Board of Underwriters of Boston, have intimated 
 that they are prepared to follow the lead of England ; the Under- 
 writers of Philadelphia have adopted these rules with some slight 
 modifications. 
 
 As regards the British Colonies, letters expressing the most 
 lively interest have been received from Canada (Quebec), Australia 
 (Sydney, Melbourne, Adelaide), India (Bombay, Calcutta), the 
 Cape of Good Hope (Cape Town), and Mauritius (Port Louis), and 
 also from Shanghai. 
 
 The only countries fi-oni which no expression of opinion has 
 been elicited are Spain and Portugal; it is, however, apprehended 
 1 hat these countries would follow the lead of France, and in France, 
 
 ' ' llegles cVYork ct cVAnvers siu' les Avaries Comimmes ' {La France 
 Judicidire, jnillet 1K78). 
 
 * ^Ir. F. Coudert's Report to the Chamber of Commerce and Board of 
 Marmc Uuderwriters, New York, November 1, 1877.
 
 2o-k MARITIME LEGISLATION. 
 
 this Association has been infornied, no doubt is felt that, slioulJ 
 the English Government move in the matter, the French Govern- 
 ment will seriously entertain the question. 
 
 Having thus far rendered a summary of what has been done in 
 the past with regard to the adoption of the York and Antwerp 
 Rules, it mav not be out of place to point to the future. 
 
 No doubt can exist but that the shipowniug interests, supported 
 bv the merchant in nearly all the European states,' favour the 
 adoption of the York and Antwerp Rules. The necessity of 
 establishing a common law, or rule, has become most urgent, and 
 the only resistance to the introduction of a uniform system at 
 present exists in the Underwriting Rooms at Lloyd's and some of 
 the principal Marine Insurance Companies of London. The decla- 
 ration of the Committee of Lloyd's Coi'jDoration, that it is desirable 
 ultimately to abolish General Average altogether, explains the 
 cause of this opposition. This suggestion has caused alarm 
 amongst the shipowners, whose property would be imperilled if 
 the losses occasioned by voluntary sacrifices incurred for the safety 
 of all — for the vessel is the first and greatest sufferer in all cases 
 of accident on the seas (anchors, masts, sails, &c., all first go to 
 save the property and crew) — were burdened on the ship, and the 
 cargo allowed to escape scot-free. Indeed, of such grave import- 
 ance is this question, in the face of the active competition by other 
 maritime states, that the shipowner, and behind him the merchant, 
 it is true, reluctantly, have had to face their old friend the insurer 
 and make him understand that the principal parties in all these 
 questions are the owner of the ship and the owner of the cargo, 
 and that an underwriter cannot, without imperilling his busi- 
 ness, put at hazard those interests which the shipowner and the 
 merchant regard as paramount. 
 
 IIkuk TiiEODOK Hacii, of Bremen, thereupon moved: 'That 
 fliis Association regards with gi-cat satisfaction the progress made 
 ill tin- matter of llie juloptioii of tin- ^'o^k mid Antwerp Rules for 
 til.' iidjii^t iiKiit of (iei\eral Average losses, and desires to express 
 
 ' Reports on the Antwerp ('uiifcreiiee cm Cicnerul Average have ajipeared 
 in the following languuge.s : Englih.h, French, Dutch, Danish, German, Italian, 
 and Swedish.
 
 IXTERXATIONAL LA.W OF (JEXERAL AVlCllAGE. 2o5 
 
 its acknowleJgineuf oft ho vuhiable services rendered both by the 
 committees on the Continent uud in the United States of America, 
 and by the English Central Committee of underwriters and sliip- 
 o-.vners during tlie past year, and to express its sense of approval 
 of the energetic measures taken by the P^nglish Central Committee 
 to carry out tliose rules, ami it adds an earnest request that tlie 
 connnittees will continue their labours.' 
 
 The resolution, seconded by M. E.NiiELS, was carried unani- 
 mously. 
 
 Tu the following year (1870) the next conference of 
 the Association was held in the Guildhall of the city 
 of London, and the most interesting part of the Eeport 
 of the General Average Committee presented there on 
 August 13 reads thus : — • 
 
 The course of action adopted by the Central Committee has been 
 to issue a report laying the case distinctly before shipowners, 
 merchants, and underwriters, and inviting the first-named to sign 
 a declaration of their individual approval of the York-Antwerp 
 Rules, and of their intention, on and after Janviary 1, 1870, to 
 insert the clause above referred to in their bills of lading and 
 charter parties, unless under exceptional circumstances. 
 
 This invitation has been largely responded to. No less than 
 789 steam and sailing ship-owning companies or firms, representing 
 2,296,085 tons, or more than two-fifths of the entire registered 
 tonnage of Great Britain, have signed this declaration. The new 
 clause has likewise been adopted by a large proportion of the 
 mutual insurance associations of Great Britain. 
 
 At this moment the York-Antweq? clause is actually in force 
 for a large percentage of the commerce of this country ; and its 
 adoption is extending itself every day. 
 
 No practical difficulty has been found on the part of under- 
 writers; though in the first instance, owing to the unfiivourable 
 attitude taken up by the Committee of Lloyd's and by influential 
 ])ersons connected with one or two insurance companies in London, 
 there appeai'ed to be some danger that this might be the case.
 
 •2oG MARITIME LEGISLATION. 
 
 Fro:n the first the Underwriters' Association of Liverpool cordially 
 and lovallv supported the new rules. There is now no difficulty in 
 obtaining insurances at Lloyd's on the usual terras. We are in- 
 formed that no extra premium has in any instance been required. 
 The change, as a matter of voluntary contract, is now quietly and 
 steadily extending itself, and opposition is rapidly dying away. 
 
 In this country it so happens that the proposed change is greatly 
 facilitated by the present condition of the law, as distinguished 
 from the practice, of General Average. Principles have been laid 
 down by the courts which have not yet been completely carried 
 out in practice, but which are gradually asserting their supremacy, 
 and by degrees transforming our practice, as point after point is 
 brought before the attention of the Judges. The principles thus 
 enunciated are precisely those which the York- Antwerp Rules are 
 founded on ; the practices thus undergoing the gradual process of 
 being broken down are precisely those which the rules strive to 
 change. The rules, therefore, are in no respect adverse to English 
 law ; and it may perhaps be regarded as only a question of time, 
 whether our vicious practices will be first reformed by the Courts or 
 by the voluntary adoption of the York- Antwerp Rules. 
 
 The progress made towards the adoption of the York- Antwerp 
 Rules on the continent of Europe and in trans-oceanic states may 
 be briefly summarised as follows : — 
 
 In Norway and Sweden, more especially the former country, 
 the York- Antwerp Rules have been agreed to by an overwhelming 
 majority of the ship and steamship owners and also by the marine 
 insurance cluljs and companies of those kingdoms. 
 
 The Danish ship and steamship owners and marine insurance 
 companies have adopted a resolution approving of the rules, 
 whenever their use does not clash with pre-existing rights. 
 
 The German Committee has reported favourable progress. An 
 imperial commission appointed to consider the question of their 
 adoption terminated its sittings in Fel)ruary last and has approved 
 of tliem. Since tliut dale the ship ;ind sle;iniship owners of 
 J'reiiicn have lUKMiinidusly \-oted their adoption, ;ind the concur- 
 rence of the llambiirg, Allon:i, and Stettin shiiiowners ;ind nuuine 
 insurance companies has to a great extent been secured.
 
 INTERNATIONAL LAW OF GKNEllAL AVERAGE. 2.-,7 
 
 In tlic Nothprlr.ncls the adoption of the rules has, subject to 
 some minor modilications, been secured. 
 
 In Belgium the ' Societe Commerciale et Industrif'lle,' which 
 society now represents in that country the former Chambers of 
 Commerce, has voted their adoption and a recommendation of their 
 insertion in contracts of affreightment. 
 
 The marine insurance companies of Russia and Austria-Hungary 
 and some of the French and great .Swiss insurance companies have, 
 conjointly with the countries already named, agreed (the former all 
 but unanimously) to recognise the York-Antwerp Rules in settle- 
 ments of General Average losses. 
 
 In France and Italy some shipowners have evinced a spirit of 
 opposition, the clause contained in the codes of these countries 
 limiting the contribution to one-half of the value of the ship being 
 deemed too favourable to the shipowners to be relinquished at 
 present. Tlie important Chamber of Commerce of Lyons has, how- 
 ever, sent in its unqualified approval of the rules, thus proving 
 that, at all events, a powerful section of the merchants of France 
 favours the change. 
 
 As regards the British colonies, those of British North America 
 have to a great extent approved and adopted the rules. The 
 Melbourne Chamber of Commerce and the Shipowners' Society of 
 that city have likewise approved of them. In our East Indian 
 possessions foreign-going vessels are all but exclusively in the hands 
 of British shipowners. The marine insurance companies of England 
 transact the whole of the insurance business of India, and thus the 
 action of those dependencies is regulated entirely by that of the 
 capitalists in the home country. 
 
 The leading insurance companies of the United States of America 
 have agreed to recognise the rules, and upwards of one hundred of 
 the great ship and steamship owning firms have assented to in- 
 serting them in their bills of lading and charter-parties The 
 Chambers of Commerce of New York and San Francisco have, in 
 opposition to this favourable movement, voted by small majorities 
 against their adoption, whilst the Board of Trade of Baltimore has 
 approved of them. 
 
 A favourable feature in the course of the progress made to- 
 
 S
 
 258 MARITIME LEGISLATION. 
 
 wards the universal adoption of the rules is the fiict that, without 
 public announcement or subscribing to any declaratory document 
 of assent, the ship and steamship owners and merchants in different 
 countries are inserting them in their contracts of affreightment. 
 A movement so widespread, including many countries and affect- 
 ing- the interests of commercial and shipping men in all parts of 
 the world, could hardly be expected to take place without interfer- 
 incr with interests more or less affected by the change. Hitherto 
 the resistance offered in some quarters has been vastly overbalanced 
 bv the success obtained in other parts ; and a reasonable hope may 
 be entertained that at no very distant period the York- Antwerp 
 Rules will have accomplished a complete change, in all the great 
 commercial countries of the civilised world, in this branch of mari- 
 time law. 
 
 Having thus reported what has been done in the interval 
 between the meeting at Antwerp and the present meeting, we may 
 be allowed to say a few words on the question, what steps may 
 with advantage, in our opinion, be taken now in furtherance of 
 the object before us. 
 
 There can be no doubt that the York-Antwerp Ivules constitute 
 — though by far the most important and difficult step — yet a step 
 only towards an international law. The rules deal only with a 
 portion of the subject. There should, eventually, be an Inter- 
 national Code, dealing with the whole matter. The framing of 
 such a code is now, accepting the York- Antwerp Rules, a matter 
 of no great difficulty. The fundamental principle of the law is 
 identical in all countries ; there is no dispute or difference as to 
 the more important instances to which this principle is applied ; 
 what differences of detail at present exist are, substantially, now 
 settled by the York-Antwerp Rules. Thus the work of codifica- 
 tion would seem to be little more than the expressing in precise 
 and clear language of conclusions already settled, a declaration, 
 not a change, of the law. 
 
 Nevertheless, it fipiicai-s by no means clear that it would be 
 judicious, at the present stage, lo ])roceed forthwith to draw up 
 such a code. Tt would be 1)etter, in our opinion, first to consolidate 
 and extend the adoption of the York-Antwerp Rules as they stand.
 
 IXTERXATIONAL LAW OF r.ENEIlAL AVET^AGE. ^r,^) 
 
 A fi'W years' ])mctical experience of" tlie workin<if of these rules, in 
 }is many countries as can In' induced to adopt tluMn, would, in tlio 
 first phice, be of itself so inucli clear gain and would, in the second 
 place, render the framing of an International Code so much easier, 
 that its success, and eventual adoption, generally, if not universally, 
 might be regarded as certain. 
 
 For these reasons we venture to think that the most judicious 
 course to be taken this year is to content ourselves with some 
 general expression of opinion, such as may have the effect of 
 stimulating and extending the movement in the direction in which 
 it is going on, recommending, if possible, to other countries the 
 line of action which is working so well in England, pointing, per- 
 haps, to a code, as something to be aimed at in the future, but not, 
 for the present, attempting to go beyond the York-Antwerp Uules. 
 
 The secretary also laid upon the table two papers upon the 
 York- Antwerp Rules, written respectively by Dr. W. Lewis,' 
 Professor in the University of Berlin, and Mr. Dexter H. Walker, 
 of New York. 
 
 Herr H. H. Meier, of Bremen, President of the North German 
 Lloyd, observed that in Germany people were fairly agreed as to 
 the merits of the York-Antwerp Rules, and the rules had made 
 their way in practice too, although doubts were felt by some 
 whether the provisions of the law would not override the contract 
 of the parties. In his opinion the rules had everywhere so far 
 asserted their right to general adoption that to desist from further 
 action, though only for a time, would be an excess of caution. He 
 thought that the moment had arrived when the English Secretary 
 of State for Foreign Affairs might be asked to use his influence in 
 bringing about a conference of the seafaring nations with a view 
 to an international code of General Average being framed. 
 
 Mr. John Glover, Chairman of the English Central Committee 
 lipon General Average, considered that Herr Meier had acted 
 wisely in not moving a resolution in accordance with his views. 
 
 ' This treatise, which gives the history of the General Average question 
 and its literature and also contains an enlightened critique of the York-Ant- 
 werp Rules, together with some valuable reflections upon the best mode of 
 effecting the assimilation of the laws of different nations, is to be found printed 
 in full in the Zcitschriff fur Haudrlsrcc/if, vol. xxiv.— Ed. 
 
 s 2
 
 2G0 MARITIME LEGISLATION. 
 
 The opposition of Lloyd's in Englfind liad relaxed, bnt was not 
 entirely overcome, and it was desirable to let that opposition die 
 ont altoo-ether before trvinw to set the Governments in motion. 
 The time of which Mr. Meier spoke was, no donbt, not far distant, 
 but its arrival would be retarded by an undue eagerness to press 
 or ward. 
 
 Dr. E. N. Rahusen, of Amsterdam, counsel to the Neder- 
 landsche Handel smaatschappij, spoke to the same effect, and said 
 that the law should follow, rather than lead, custom. He had 
 often encountered the York- Antwerp Rules in practice ; this showed 
 that the proper kind of propaganda was actively going on. He 
 could not doubt that the justice and expediency of the rules would 
 eventually make themselves felt even at Lloyd's. He was in a 
 position to state on the best authority that there would be no 
 difficulty in effecting the necessary changes in the law, so far as 
 Holland was concerned. 
 
 M. Theodore Engels, of Antwerp, President of the Belgian 
 Llovd, stated that he was able to give the same assurance with 
 regard to Belgium. The subject had been broached to M. Bara, 
 the Belgian Minister of Justice, who had warmly approved of the 
 rules and of the movement. He instanced, as showing the equity 
 of the rules, that in England they were considered too favourable 
 to the shipowner, in France the contrary. It seemed to him that 
 the Association should jealously watch for the earliest opportunity 
 of taking further action. 
 
 Mr. H. J. Atkinson, Chairman of the Hull Chamber of 
 Shipping, gave an amusing account of the rapidity of the progress 
 made by the rules at Hull. When they had once become fairly 
 known, only one large merchant and one small one had refused to 
 adopt them, and the fonner of the two had soon found it prudent 
 to make his submission. 
 
 M. E. van Eeten, Delegate of the Societe Commerciale et 
 Industrie-lie ( = Chamber of Commerce) of Antwerp, touched upon 
 the present relation of Antwerp to the ^"ork-Antwerp Rules and 
 expressed an ()])iiiion that without legislative enactment the rules 
 would soon have the force of law in Antwerp. He said : — 
 
 ' There can be no doubt that in the case of a ship arriving at
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 201 
 
 Antwerp with the York-Antwerp clause in her bills of lading the 
 General Average, if any, would be settled according to the rules. 
 But I think tluit in a very short time the York-Antwerp Rules 
 will he ai)plied, whether there be a clause to that effect in the 
 contract of affreightment or not. My reasons for saying so are 
 these. According to the present law of Belgium the contributory 
 value of the ship is one half, and the wages and provisions of the 
 crew during the vessel's stay at a port of refuge are not admitted 
 as General Average, while the code says nothing whatever about 
 the apportionment of any other port of refuge expenses. Those 
 expenses have so far been regulated by the local custom ; that is 
 to say, when the cargo is entirely discharged for the ship to be 
 repaired, the cargo alone bears all the expenses of landing, ware- 
 housing, and re-shipping. A new law on the subject of General 
 Average has already been voted by the Chamber of Representatives 
 and has been recently adopted by the Senate. According to the 
 new law the contributory value of the ship will be her entire value 
 at the port of destination, and the wages and provisions of the 
 crew at a port of refuge will be allowed, but again nothing is said 
 as to other ports of refuge expenses. Now, supposing a ship to 
 enter the port of Antwerp without the York-Antwerp clause in 
 her bills of lading, wages and provisions having to be admitted 
 according to the new law, it would evidently be unfair to continue 
 to saddle the cargo with the expenses of landing, storing, and re- 
 shipping and with its share of the wages and provisions besides. 
 It will, therefore, be necessary to change the local custom of 
 Antwerp, and the York-Antwerp Rules will, no doubt, be resorted 
 to and soon become the cust/om of Antwerp.' 
 
 Mk. J. HoKNE Payne, of London, observed that the justice of 
 the rules in one particular had lately been triumphantly vindicated 
 by a decision of the Queen's Bench Division of the English High 
 Court of Justice,^ by which, in spite of the inveterate contrary 
 practice of average adjusters, the English law relating to port of 
 refuge expenses had been brought into harmony with No. 7 of the 
 rules. 
 
 M. Edouakd Clunet, of Paris, pointed out that the only 
 ' Attivood V. ScUar (L. 11. 4 Q. B. D. 342).
 
 262 MARITIME LEGISLATION. 
 
 radical innovation wbicli the adoption of the rules would introduce 
 iuto the laws of France was the provision contained in llule X., 
 to which the French shipowners were naturally opposed, seeing 
 that by the existing code the contribution of the ship was limited 
 to one half of its value. 
 
 Captain N. Jacobsen, of Copenhagen, reminded tlie meeting 
 of the action already taken by the German Government in referring 
 the rules to an imperial commission and of the willingness of that 
 Government to proceed further in the matter, and urged that, if 
 the Association as such was to remain quiescent for the present, 
 it might at least be enjoined upon the local committees to seize 
 the earliest opportunity of endeavouring to induce their respective 
 Governments to countenance and actively promote the movement. 
 
 Mil. Bkistoa^'E (Chairman of the Australian and New Zealand 
 Underwriters' Association) described the interest which the rules 
 had awakened in the colonies, where man}^, he said, wished to see 
 them obtain everywhere the force of law. 
 
 Mr. Mauley HorKixs (of London), Mr. E. H. Caiter, Delegate 
 of the Central Committee on General Average at Cardiff, and Mr. 
 Lawrekce R. Baily, Delegate of the Steamship Owners' Association 
 of Liverpool, also took part in the discussion, which closed with 
 seme remarks from Sir Travers Taviss. 
 
 It may be imagined with what satisfaction I read at the 
 Conference of the Association on Angust 2G, 1880, at 
 l)('rne, the following report : — 
 
 At the request of the executive council of this Association I 
 have undertaken to report to this conference what has taken place 
 since our last meeting with respect to the international law of 
 General Average, as emljodied in the York and Antwerp Rules. 
 
 And I lliiiik it is a uialtn- of sincere eougrat uhitioii to the 
 members of this Associat i<iii tliiil I :iiii ;il»lc to reeoi'd that the first 
 judgments (of the Queens JJencii and the Appeal Courts) in 
 matters (A' Gi-neral Average not only ratified, as far as the subject 
 under coiij-iderat ion was eoneeiMied. Ilie |iiiiieipl(> npon whiehthat 
 part of the Y()\-k and .A iil wei'ii liuies was based, but aetnally pro-
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 203 
 
 nounceil tliul the custom or practice which for at least eighty years 
 luid prevailed among the English average adjusters, and according 
 to which they adopted a contrary system of adjustment, was at 
 variance with the common hiw of England. 
 
 The case in which this satisfactory result was attained was that 
 of Atwood a. Cellar, which came, on a so-called special case, 
 first before the Queen's Bench Division, consisting of Lord Chief 
 Justice Cockburn and Justices Mellor and Mauisty, and afterwards 
 before the Court of Appeal, consisting of the Lords Justices liram- 
 well, Baggallay, and 'Jliesiger. 
 
 The circumstances under which it arose were, that the ship 
 ' Sullivan Sawin,' during a voyage from Savannah to Liverpool in 
 February 1877, encountered severe weather, which compelled the 
 master to cut away the foretopmast, the fall of which having 
 occasioned further damage to the vessel, he was forced to put into 
 Charleston for repairs. These could not be effected without the 
 discharge of a portion of the cargo, and the expenses thus incurred 
 for landing, warehousing, and re-shipping the same, as well as for 
 pilotage and other charges paid in respect of the ship, were, on 
 arrival at Liverpool, all brought into the General Average column 
 by our friend Mr. Lowndes. This being against the view which 
 the members of the Average Adjusters' Association had hitherto 
 adopted, and according to which, where ships have put into port to 
 refit, whether such putting into port had been occasioned by a 
 General Average sacrifice or a Particular Average loss, the expense 
 of discharging the cargo was treated as General Average, the ex- 
 pense of warehousing it as Particular Average on the cargo, and 
 the expense of the re-shipment of the cargo, pilotage, port charges, 
 and other expenses incurred to enable the ship to proceed on 
 her voyage, as Particular Average upon the freight, the principal 
 underwriters interested on the cargo agreed to contest this innova- 
 tion upon a practice of more than eighty years' standing, but they 
 were disappointed in the result. 
 
 After a very elaborate argument of counsel before the Queen a 
 Bench Division, it was only Mr. Justice Manisty who stood out for 
 the old practice, whereas the nuijority of the Court, Lord Chief 
 Justice Cockburn and Mr. Justice Mellor, condemned it in some-
 
 264 MARITIME LEGISLATION. 
 
 wliat remarkable terms ; and altliougli the limits of this report 
 will prevent me from giving a fnll reprint of the Lord Chief 
 Justice's argument, 1 think I may venture so much as to quote the 
 m^ost instructive passages verbatim. 
 
 After some introductory observations his lordship says : ' Two 
 questions present themselves : First, what, independently of this 
 practice of average adjusters, is the principle or rule of law applic- 
 able to the case ? Secondly, whether, assuming the practice to 
 be inconsistent with what otherwise should be the law having sub- 
 sisted for so long a time it must be taken to g-ive the rule properly 
 applicable to such a case ; ' and after alluding to some conflicting 
 decisions to which reference had been made in the course of the 
 argument, he states: — 
 
 ' That the expenses which, according to the practice of average 
 adjusters, are thus treated as Particular Average, should, according 
 to legal principles, be made the subject of General Average, appears 
 to me to flow necessarily from the fundamental principle on which 
 the whole doctrine of General Average rests, namely, that all loss 
 which arises from extraordinary sacrifices made or expenses in- 
 curred for the preservation of the ship and cargo must be borne 
 proportionably by all who are interested. 
 
 ' The contract between the goods owner and the shipowner on 
 a charter-party or a bill of lading being for the conveyance of the 
 goods to a given port, there occurs in the course of the voyage a 
 state of things which is not provided for by the contract. 
 
 ' A storm arises, the vessel is in danger, but a port is within 
 reach, into which, in the common interest of all concerned, it 
 would be prudent to take refuge, or it becomes necessary to cut 
 away a mast, and as a consequence of so doing to seek an inter- 
 mediate port in order to replace it. Or the ship sustains damage 
 from till" ^■i()l('llce of winds or waves, which renders it necessary 
 for the coiiiiiiou safl'ty of ship and cargo, and for the further pro- 
 secution of llie advi-nlure, to seek a port at which repairs which 
 have Ijccome necessary for the safe prosecution of the voyage may 
 }je effected. 
 
 'The result is that, in theory at least, a new arrangement not 
 cont-'-mplated or provided for by the original contract, takes place
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 205 
 
 between tlie partners, wlio in theory, as formerly in fact, must bo 
 supposed to l)t' i)rest'nt each in the practice of modern times repre- 
 sented by the master, to whom the interests of both are committed. 
 If we could suppose both parties to be actually present and under 
 a sense of imminent danger to concur in the necessity of seeking 
 a port of refuge, but discussing the question as to how the ex- 
 penses incidental to such a course shall be borne, what arrangement 
 could be more reasonable or just than that these expenses, being 
 extraordinary expenses incurred for the common benefit, should be 
 borne in common, on the same principle as that which has been 
 established from the earliest times in the case of actual jettison? 
 
 ' Applying this principle with reference in the first place to the 
 expenses incurred by the ship, it is admitted on all hands that the 
 expenses of entering the port of refuge should be carried to General 
 Average. Logically it would seem to follow that as the coming 
 out of port is — at least where the common adventure is intended 
 to be, and is afterwards further prosecuted — the necessary conse- 
 quence of going in, the expenses incidental to the later stage of the 
 proceeding should stand on the same footing as the former. The 
 further prosecution of the voyage was in the contemplation of the 
 parties, or of the master representing them in going in ; the coming 
 out, therefore, must equally have been in view when the resolution 
 to go in was formed. But it is said — and it is upon this ground 
 that the difference between these two sets of expenses is alleged to 
 be founded — first, that it is the shipowner's duty, under his con- 
 tract, to keep the ship in a navigable state, and consequently, to 
 repair any damage she may have sustained ; secondly, that when 
 the ship lias been repaired, it is the owner's duty, under his con- 
 tract, to re-ship the goods and to set forth again on the voyage, and 
 to that end to incur the cost of quitting the port and of employing 
 a pilot or a tug if necessary. The whole of this reasoning appears 
 to me to be based on an assumption altogether fallacious. The 
 shipowner is not bound to repair for the purpose of carrying on the 
 cargo, nor, having repaired, does he become bound to re-ship the 
 cargo and complete th(> voyage under the original contract, but if 
 bound at all to do so, is bound only under that contract as modified 
 by the altered circumstances of the case.
 
 2G0 MAIJTIME LEGISLATION. 
 
 ' Tlie contract, it should be remembered, expressly exempts tlie 
 shipowner from performance of his obligations under it, when per- 
 formance is prevented by perils of the sea. The ship having be- 
 come incapacitated from prosecuting the voyage, and performance 
 of the contract having been prevented by the excepted cause, the 
 shipowner is under no obligation, so far as the goods owner is con- 
 cerned, to repair. He cannot, it is true, expose the goods of the 
 freighter to further peril by persisting in carrying them on if, 
 having the opportunity of putting into a port of refuge, he cannot 
 or will not, repair the ship ; but, if he chooses to forego his right 
 to freight, he may repair or not, as may best suit his interest.' 
 A little further on the following passages occur : — 
 ' In legal theory we must suppose the parties to be present. In 
 contemplation of law the master, as representing both, makes for 
 them both the agreement, which it is reasonable to suppose that, if 
 present, they would have made for themselves. The common pur- 
 pose is twofold. The first and immediate purpose is that of saving 
 ship and cargo by bringing both into harbour. The second is that 
 of repairing the ship with a view to the further prosecution of the 
 voyage, if such repair should prove reasonably practicable, with 
 certain reservations on the part both of the shipowner and the 
 goods owner, which probably may lead to the abandonment of the 
 flirt 1 It 'r prosecution of the voyage. The second of these pui*pose8 
 iii\olves several subordinate operations and expenses incidental 
 thereto. The state of the ship and the degree of damage she has 
 sustained have first to be ascertained. To eifect this, as well as to 
 do the necessary repairs, it may be necessary to unship the cargo ; 
 to prcstrve the goods from harm they will have to be warehoused. 
 I'lie r>'pair to the ship having been completed, the cargo must be re- 
 shipped. Lastly, all things having been completed, theship will have 
 1o leave tlie port and ])ut to sea. In respect of each of these stages, 
 expenses will ii;i\ c to he incurred for wliieli, as being altogether out- 
 side flu? original contract, that contract wholly fails to provide. They 
 {ire ext raoi'dinjirv expenses, incni-i-ed for the preservation of ship and 
 cargo, and in I'lii-I liernnce of llie (•(umnon adventure under circum- 
 stances in wliieli I lie ^liipnnd r.ii-'jD woiilil ol lierwise hav'e ])erislied 
 or the coiiiMion ad\cnluie would lia\e been al)i'U})lly brought to a
 
 INTtltNATIUNAL LAW OF GENKUAL AVERAGE. i'07 
 
 teniiinatioTi. V]vm wliom should tlie expenses of these different 
 o[)erulions fUll ? 'I'lir imictice of the average adjusters makes the 
 unlcKidiii^- of the car«z-<» iiialter of (ieuenil Average, and as it seems 
 to me on piMiieipl.' rightly so. On what ground the distinction be- 
 tween the cost of uiishii)])ing the cargo and of warehousing it, 
 which is thrown on it as Particular Average, and that of re-shipping, 
 which is treated as Particular Average on the freight, is founded, I 
 wholly fail to perceive. Looking to the common purpose for which 
 all these operations are ])erf(jrmed, it seems only reasonable and 
 just that the expenses should be borne ratably by all parties con- 
 cerned ; in other words, be treated as General Average, so far, at all 
 events, as the common ])urpose has been effected. 
 
 'It is true that it not unfrequently happens that the primary 
 purjiose of putting into port having been accomplished, the ulterior 
 purpose, that of further prosecuting the voyage, fails. There may 
 be no means in the port of refuge for repairing the vessel. The 
 cost of repairing may be so great as not to make it worth the 
 owner's while to repair in order to earn the freight. As regards 
 the alternative of transhipment, there may be no opportunity to 
 tranship, or only at an increased rate of freight, on which account 
 the shipowner may decline to tranship, except on account of the 
 goods owner. On the other hand, the cargo may be of a perishable 
 nature, or it may be so damaged that it cannot be carried on further 
 without becoming worthless ; or the repairs to be done to the ship 
 will take so long a time that in the interest of the goods owner the 
 master would not be justified in detaining the goods, but, acting as 
 the agent of the latter, becomes bound to forego the right of carry- 
 ing on the goods, and so earning the freight, and must deal with 
 them in the interest of their owner alone. In such cases it may 
 well be that only the expense of putting into the port of distress 
 could properly be made matter of General Average, and that ex- 
 penses thus incurred, from wliicli no benefit results to the common 
 adventure, should be trc^ited as Particular Average to ship or goods, 
 as the case may be. But we are here dealing with a case in which 
 every expense has been incurred with a view to, and has resulted 
 in, the iurther prosecution of the common adventure. The ship 
 and cargo hnve been .saved I'ram destruction by being brought into
 
 2G8 MARITIME LEGISLATION. 
 
 port ; the ship has beeu repaired, the cargo, having in the meantime 
 been preserved by being warehoused, has been re-shipped, the 
 voyao-e has been resumed and brought to a safe conclusion, and 
 the goods have been delivered ; in a word, the common purpose, 
 the fulfilment of the contract of affreightment, has been effected. 
 But how has this result been brought about ? By the series of 
 operations which have taken place from the ship's going into port 
 to her putting to sea again inclusively. But the whole of these 
 operations were necessary to the resumption of the voyage ; the 
 expenses of carrying them out were each of them incurred in 
 furtherance of the common purpose. Not being expenses within 
 the scoj)e of the original contract, but extraordinary expenses in- 
 curred for the common benefit of ship and cargo, the conclusion 
 appears to me irresistible that, with the exception of the cost of 
 repairs to the ship, all these expenses should be charged to General 
 Average.' 
 
 Then, after referring to one of the reported cases, and to the 
 American and other laws, the judgment proceeds : — 
 
 ' We have next to consider wdiether the practice of average 
 adjusters in this country, which is said to have existed for seventy 
 or eighty years, if thus found to be at variance with legal principles, 
 shall nevertheless prevail, and must be considered as having settled 
 the law. I am not aware of any principle on which the affirmative 
 of this proposition can be maintained, or of any authority by which 
 it can be upheld. It is not a usage of trade by which the terms of 
 a contract may be interpreted or modified. It is not a custom 
 which can be presumed to have a legal origin. It is not the in- 
 veterate praxis of a Court or Courts having judicial authority, and 
 which must therefore be taken to be the law, though inconsistent 
 with general ]iriiiciples. ^J'he authority of average adjusters may 
 Iji- said to \»- of an aiuuualous character. By the consent of ship- 
 (jwiicrs and merchants they act as a sort of arbitrators in the 
 settlement of matters (jf average. ]5ut they are bound in the ad- 
 jii.^tiiifiit ol^-iirli claims to follow the law. And in the practice 
 they have atlojiied. they have not acted oi'jiilended t o act on or give 
 effect to any mercantile usages, but havt' inteiuled to give effect 
 to what they believed to be the law ; but they have mistaken it.'
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 2C9 
 
 And after liavini; niado the following remark, ' If a custom pre- 
 vailing in a Court wliidi, though an inferior Court, is still a Court 
 of law, if inconsistent with law cannot prevail, surely the same 
 rule must apply to a practice of average adjusters. When a 
 practice of this kind is brought to the test of a legal decision, and 
 is found to be erroneous and inconsistent with law, it cannot be 
 permitted to override the law and acquire the force of law,' the 
 Lord Chief Justice concludes as follows : — 
 
 ' The case of Stewart v. ThePacific Steamship Company (Law- 
 Reports, 8 Q. B. p. 88), so far from supporting the defendants' case, 
 appears to me a strong authority the other way. There, by the 
 terms of the bill of lading, average (if any) was to be adjusted 
 according to British usage. A fire having broken out in the ship, 
 water was poured in to extinguish it, and bark shipped on board 
 by the plaintiffs was seriously damaged thereby. The plaintiff 
 claimed as for General Average ; but it appeared that it was the 
 practice of avei'age adjusters in this country to treat such damage 
 as Particular Average. The Court expressly declared the practice 
 to be at variance with the law applicable to such a case, and would 
 assuredly have given judgment in favour of the plaintiffs, had not 
 the latter, by the terms of the bill of lading, expressly agreed to 
 make the custom a^ part of the contract. " If," says Mr. Justice 
 Quain, in delivering the judgment of the Court, " the present case 
 depended wholly on the common law applicable to General Average, 
 we think the plaintiffs would be entitled to recover ; but as the 
 parties have agreed to make the custom a part of their contract, 
 the case must be decided according to the custom, and the result 
 is that our judgment must be for the defendants." To which the 
 learned Judge added, " It is to be hoped, however, that in future 
 there will be no difference between law and custom on this point, 
 and that average adjusters will act on the law as now declared, 
 and that bills of lading will also be framed in accordance with it." 
 There being no such term in the present contract, I see no reason 
 for treating the practice with more consideration than the practice 
 then before the Court received at its hands in that case. 
 
 Walthew v. Mavrojani (Law Reports, 5 Ex. p. 116) was al- 
 together different from the present; it was a case of stranding, and
 
 270 MARITIME LEGISr.ATIOX. 
 
 the question was whether expenses incurred for the purpose of 
 getting the ship off, after the goods had been taken out of her, and 
 removed to a pkce of safety, coukl be made the subject of General 
 Average, and it was held that they could not. But of the six 
 Judo-es in the Exchequer Chamber, Bovill (Chief Justice), Mellor, 
 Montague Smith, Lush and Hannen (Justices) base their judgment 
 on the ground that while it was essential to the owner of the ship 
 to get his ship off so as to be able to resume the voyage and earn 
 the freight, it was indifferent to the goods owner, the goods being in 
 safety, whether they were carried on in the same ship or in another. 
 " It is not shown," says the Chief Justice, "that any advantage 
 resulted to the goods from their being carried on in that ship rather 
 than in any other." It was indifferent to the owners of the cargo 
 Avhether the ship floated or not, and there was, therefore, no sacri- 
 fice made, or extraordinary expense incurred to save both ship and 
 cargo, or for the common benefit of both. " I draw the inference," 
 says ]\Ir. Justice Montague Smith, " that it was indifferent to the 
 owner whether the goods went forward to England in the ' Southern 
 Belle,' the ship in question, or any other." Mr. Justice Hannen 
 says : " It is unjust that expenses incurred by the owner of the 
 shii) for the benefit of all should be borne b}^ him alone, but the 
 expenses in question were not such, for it is indifferent to the 
 owner of goods whether his goods are taken on by the same ship, 
 except where they would not otherwise be carried on at all, or onl}^ 
 at a greater expense." Even Mr. Justice Brett, who appeared to 
 have been disposed to lay down the rule more generally, treats 
 these expenses as incurred solely for the benefit of the ship- 
 owner. 
 
 ' In like manner, in the earlier case of Hallett v. Wigram 
 (9 Common Bench, p. 580), in which a claim for contribution had 
 been made where part of the cargo had Ix'cn sold to raise money 
 to repair the ship, which had put back by reason of damage sus- 
 tained by ordinary perils of the sea, Wilde (Cliief Justice) in 
 giving judgment, says: "It is in respect only of the incapacity of 
 1hi' ])art iciilaf ship to carry the goods forwai'd lo flicir destination 
 that the pleas show that the cargo was in danger of being wholly 
 lost. It is diflieiilt to see how the repair of the shi}) could be for
 
 JNTERNATIOTs'AT. LAW OF GENERAL AVERAGE, 271 
 
 the benefit and advantaf^c of tlic plaintiff. The plaintiff's goods 
 were of a description not to be deteriorated to any great extent." 
 
 ' These two decisions are, no doubt, sufficient autliority for say- 
 ing that, according to English law, expenses incurred for the benefit 
 of the ship alone, without any concomitant benefit to the cargo, 
 such as the expense of getting off a stranded vessel after the goods 
 have been discharged, or repairing a vessel in a port of refuge, in 
 the absence of special circumstances such as were referred to in 
 Walthew v. Mavrojani, will not give a claim to General Average ; 
 but they are inapplicable to a case like the present. There is 
 nothing here to show that the goods carried have been sent on in 
 another vessel ; and what is of more importance, the expenses were 
 all incurred in furtherance of the common purpose and for the 
 benefit of the cargo as well as the ship. Of the ship, as an oppor- 
 tunity was thus afforded of repairing it, and enabling it to take on 
 the carefo : of the cargo, as it was thus enabled to be carried on to 
 its destination. I am therefore of opinion that our judgment must 
 be for the plaintiff, and as my brother Mellor concurs in the view I 
 take, both as regards the result and as regards the reasons for it, 
 there will be judgment for the plaintiff.' 
 
 The defendants appealed against this judgment, and both parties 
 having fortified themselves respectively with two leading counsel, 
 eminent in matters of commercial law^, long and learned arguments 
 were addressed to the Court of Appeal, which confirmed the first 
 judgment, and pronounced its unanimous reasons through the 
 mouth of Lord Justice Thesiger : — 
 
 ' The question raised by this appeal is whether, in the case of 
 a, vessel going into port in consequence of an injury which is itself 
 the subject of General Average, the expenses of warehousing and 
 reloading goods necessarily unloaded for the purpose of repairing 
 the injuiy, and expenses incurred for pilotage and other charges on 
 the vessel's leaving the port, are the subject of General Average 
 also. 
 
 ' The matter came before the Court below in the form of a 
 special case, and upon it the Court decided in favour of the plain- 
 tiffs, who assert that the expenses in question are the subject of 
 General Average.
 
 272 MARITIME LEGISLATION. 
 
 'The special case states a long-continued practice of British 
 average adjusters, in adjusting losses in cases where ships have put 
 into port to refit, whether such putting into port has been occa- 
 sioned bv a General Average sacrifice or a Particular Average loss, 
 to treat the expense of discharging the cargo as General Average ; 
 the expense of warehousing it as Particular Average on the cargo, 
 and the expense of the re-shipment of the cargo, pilotage, port 
 charges and other expenses incurred to enable the ship to proceed 
 on her voyage as Particular Average upon the freight. It was not, 
 however, and could not reasonably be contended for the appellant, 
 that the practice could be put so high as a custom impliedly incor- 
 porated in the contract between the parties ; and during the course 
 of the argument we intimated our opinion, founded upon the lan- 
 guage of the special case with regard to this practice, and especially 
 the language of the fifth paragraph, that the question between the 
 parties must be decided in accordance with legal principle and 
 authority, which the practice of the average adjusters professes to 
 follow. 
 
 ' The law governing the case is admittedly English law, for the 
 expenses in dispute arose upon a voyage the proper and actual 
 termination of which was an English port. 
 
 ' As a matter of principle we are clearly of opinion that the 
 judgment of the majority of the Court below in favour of the plain- 
 tiffs was right. The principle which underlies the whole doctrine 
 of General Average contribution, is that the loss, immediate and 
 consequential, caused by a sacrifice for the benefit of cargo, ship, 
 and freight, should be borne by all.' 
 
 After some further observations, the judgment thus proceeds : — 
 
 ' A vessel which has put into port to repair an injury occasioned 
 by a General Average sacrifice, may be, and generally is, when in 
 port, in perfect safety ; and ii" Ity the expression " common danger " 
 be meant danger of actual injury to vessel and cargo, there is no 
 more danger to the goods when on board, the vessel being in port, 
 than wlu-n stowed in a warehouse on shore, and indeed in many 
 cases only a portion of tlie goods is removed from tlie vessel in 
 order to do tlic repairs lo liei-. wliilc llic rciiiaiiider of tlie goods is 
 left on board.
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 273 
 
 ' If, on the other htiud, by " common danger '' bo meant the 
 danger of the vessel with her cargo being prevented from prose- 
 cuting her voyag(^, then tliere is no more reason why the expenses 
 of warehousing and reloading, and the expenses incurred for pilot- 
 age and other charges paid in respect of the vessel leaving port 
 and proceeding upon her voyage, should not constitute General 
 Average than there is reason for saying that unloaded and ware- 
 housed goods should not contribute, as it is clear in a case of 
 voluntary sacrifice that they must, to the expenses of the necessary 
 repairs to the vessel. Both classes of expenses are extraordinary 
 expenses, consequent upon the voluntary sacrifice, and necessary 
 for the due prosecution of the voyage by the vessel with her cargo. 
 Neither class can as a general proposition be said to be incuiTed 
 exclusively for the benefit of either vessel or cargo. In some cases 
 it might be for the interest of a shipowner to terminate the voyage 
 at the port where his vessel puts in to repair a disaster, while it 
 would be all-important for the goods owner to have his goods 
 carried on by the same vessel ; in other cases the position of the 
 parties in this resj^ect might be reversed. But however this may 
 be, the going into port, the unloading, warehousing, and reloading 
 of the cargo, and the coming out of port, are at all events parts of 
 one act or operation contemplated, resolved u2:)on and carried through 
 for the common safety and benefit, and properly to be regarded as 
 continuous. The shipowner is, at least, entitled to re-ship the 
 goods and prosecute his voyage with them, and the expenses 
 necessary for that purpose, being ex hypothesi consequent upon a 
 damage voluntarily incurred for the general advantage, should 
 legitimately be the subject of General Average contribution ; or, to 
 use the language of Lord Tenterden in his work on shipping : " If 
 the damage to be repaired be in itself an object of contribution, it 
 seems reasonable that all expenses necessary, although collateral to 
 the reparation, should also be objects of contribution : the accessory 
 should follow the nature of its principal." 
 
 ' But it is said for the appellants that if this be so, and the 
 principle be carried out to its logical consequences, expenses in- 
 curred for wages of crew and provisions, should equally form the 
 subject of General Average ; and tliat inasmuch as it is, as tliey
 
 ■274 MAPJTIME LEGISLATION. 
 
 sncrgest, nneleiiiuble that they do not, the prhiciple itself must 
 either be faulty or at least not recognised in English law. As a 
 matter of ftict, it is extremely doubtful whether the expenses for 
 wao-es of crew, and provisions in a port of refuge, have ever been 
 disallowed by our Courts as constituting a claim for General Average 
 in a case where the ship has put into the port to repair damage it- 
 self belonging to General Average ; but even if the assertion were 
 correct, the conclusion drawn would by no means follow. 
 
 ' That the principle in question is not faulty we have endeavoured 
 to show in the observations already made, and the view we have 
 taken upon the point is strongly confirmed by the fact that it is re- 
 cognised and carried to its so-called logical consequences as regards 
 the wages of crew and provisions in all other countries than our own. 
 
 'That the principle is not recognised in English law is not 
 proved by showing that expenses incurred for wages of crew and 
 provisions have been under certain circumstances disallowed as the 
 subject of General Average, unless it be shown, which it has not 
 been to us at the same time, that they have been disallowed upon 
 grounds that negative the principle, and is disproved if it be found 
 that, notwithstanding such disallowances, the expenses in question 
 in this case have been allowed. All that in such a case can be 
 said is, that either the Courts have made a mistake in limiting the 
 application of the principle, or that its limitation is due to some 
 real or supposed rule of public policy. This at least may fairly be 
 asked : AVhat is the principle if this is not ? If then the question 
 before us stood only upon principle, we should have no hesitation 
 in deciding it according to the principle we have stated, and it at 
 least may fairly be asked : What other principle, if it be not coiTect, 
 is to be substituted in its place ? But the authorities remain to 
 be considered, and it is the more necessary that they should be 
 examined with attention, seeing that the practice of the average 
 adjustci's professes to follow them.' 
 
 And aller a careful review of the different authorities quoted 
 on both sides as bearing upon the sul)ject under consideration, the 
 judgment continues: — 
 
 * We have, t lici-cfoiT, llic liiw as laid down by the Courts for a 
 considerable portion of ihc period u^•er which the practice of aver-
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 275 
 
 age adjusters, stated in the spc^cial case, extends, running counter 
 to that practice by recognising as regards port of refuge expenses 
 a distinction between cases whcrc^ a ship puts into a port of distress 
 for repair of damage done by a voluntary sacrifice, and cases where 
 it so puts in for repair of damage caused by perils of the seas, and 
 admitting in the former cases as a matter of principle, if not of 
 express decision, expenses such as tliose in question in this case, 
 to be the subject of General Average contribution. 
 
 'This distinction in principle is to be found asserted by 
 Benecke, who was a member of Lloyd's, in his valuable work on 
 the principles of Indemnity in Marine Insurance, published in 
 1821'. At page 191 he says: "If, setting aside all laws and 
 received opinions, the case is examined merely accoi'ding to the 
 fundamental maxims which regulate General and Particular Aver- 
 age, it will in the first instance appear evident that not only all 
 the port charges, such as pilotage, harbour dues, lighterage, &c., 
 but also the charges of unloading and reloading, repairs, and crews' 
 wages, will be General Average, if the ship put into port for the 
 mere purpose of repairing a damage voluntarily incurred for the 
 general advantage. For all these expenses, being the necessary 
 consequences of a measure taken for the general benefit, belong to 
 General Average ; " and then turning to the case where the port 
 is entered in consequence of a particular damage sustained, by 
 which the vessel is rendered unfit to prosecute her voyage, as when 
 masts, sails, or other requisite apparel are lost in a storm, or the 
 vessel has sprung a dangerous leak, he adds : " All the expenses 
 of entering the port are a subject of General Average, being the 
 consequence of a measure voluntarily taken for the preservation of 
 the whole. But as soon as the object of putting the vessel and 
 her cargo in safety is accomplished, the cause for general contri- 
 bution ceases ; for whatever is subsequently done is not a sacrifice 
 for the benefit of the whole, or for averting an imminent danger, 
 but is the mere necessary consequence of a casual misfortune." 
 Benecke then claims the allowance even of wages of crew and 
 provisions, where the putting into port is the consequence of a 
 damage belonging to General Average ; on the other hand, ho 
 contends for the disallowance even of the expenses of unloading 
 
 T 2
 
 276 MARITIME LFXJISLATIOX. 
 
 cargo, where it is the consequence of a damage belonging to 
 Particular Average. In Stevens " On Average," and Bailey " On 
 Averao-e," the distinction referred to is not adopted except as re- 
 gards the repairs of the ship ; but both writers assert, as a matter 
 of principle, that, where a ship necessarily puts into a port to 
 repair damage, whether the original cause of damage be a volun- 
 tary sacrifice or any ordinary peril of the sea, the expenses of ware- 
 housing and reloading, as well as those of unloading the cargo, and 
 the outward as well as inward port charges, should be the subject 
 of General Average contribution. (See " Stevens," p. 22, and 
 "Bailey," p. 119.) They look not to the more remote damage 
 which undoubtedly was a Particular Average loss, but to the proxi- 
 mate act of putting into port for the safety of ship and cargo, 
 which would belong to General Average, and in answer to the 
 argument that their views, if logically carried out, would lead to 
 the allowance as General Average of the cost of repair of the ship, 
 Bailey, at p. 119, replies that the damage which necessitated 
 that repair, being caused by a peril of the sea, the repair should be 
 treated as Particular Average, but that the ship does not put into 
 the port of refuge because she wants repairs, but because the voyage 
 cannot be continued until she is repaired, or a total loss of ship and 
 cargo will follow if she does not go into port. He adds : " The 
 immediate cause for putting into the port of refuge is the impossi- 
 bility of completing the voyage in her then state, or the expected 
 total loss of ship and cargo ; the damage which the ship has sus- 
 tained is the remote cause onl}"", for under other circumstances the 
 crew are not justified into putting into port, although the vessel 
 may have sustained damage which it will be necessary ultimately 
 to repair." 
 
 ' 'J'lie views thus expressed are substantially those which are 
 recognised in American law and practice, and they are carried out 
 to the length of including tlie expense of wages of crew and pro- 
 visions at the port of refuge in the amount to be contributed for in 
 (jleneral Average in all cases where a vessel puts into port for the 
 common safety, whether owing to injury from a peril of the sea or 
 a voluntary sacrifice. (See J'hillips " On Insurance," 3rd edition, 
 sections 1 ,322, 1,32G, and 1,328.) T*. r.-turn to the text-writers
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 277 
 
 of this country, Mr. ArnoulJ, in his work upon " JMurine Insurance, 
 3rJ edition, vol. ii. p. 789, after discussing the principles relating 
 to General Average, says : " From these principles it follows that 
 where a ship has either cut away her masts or rigging, or has been 
 so damaged by a storm that it is necessary for the safety both of 
 ship and cargo to put into a port of distress for repairs, all the 
 expenses inseparably connected with the act of first putting into 
 and afterwards clearing out of such a port of distress, give the ship- 
 owner a claim to a General Average contribution, and this upon 
 the plain ground that these expenses are a necessary consequence 
 of an extraordinary measure taken for the general preservation." ' 
 
 And the judgment concludes in the following terms : — 
 
 ' The result of this review of the authorities is to confirm the 
 opinion which, apart from authority, we entertain, and have already 
 expressed upon the questions submitted to us. 
 
 ' The practice, then, of the average adjusters, as stated in the 
 special case, appears to us to be neither founded upon true prin- 
 ciples, nor to be in accordance with the views of the text-writers ; 
 and so far as there is case authority upon the matter, it appears to 
 us to be opposed to legal decisions. It is a practice, too, which, 
 has not been, as the practice in Stewart v. The West India and 
 Pacific Steam Ship Company (Law Reports, 8 Q. B. p. 88) was 
 made, part of the contract between the parties, and therefore con- 
 stitutes no impediment to our giving effect to the objections to its 
 validity, and in deciding as we do that the judgment of the authority 
 of the Court below was right and should be affirmed, it is satisfactory 
 to us to know that the law as laid down in the judgment of the 
 Court below and of this Court is placed upon a footing which more 
 nearly assimilates it, in matters in which assimilation is desirable, 
 to the law obtaining in other mercantile and maritime communities.' 
 
 I should be only too happy if I could add that the antagonists 
 to the York and Antwerp Rules, taking into their consideration 
 the arguments in the above-quoted judgments, would now cheer- 
 fully and cordially join us in adopting tliem altogether, for as Mr. 
 Lowndes in his address at the last meeting of the Average 
 Adjusters' Association very truly stated : — 
 
 'It is a somewhat remarkable circumstance that, of all tl'O
 
 278 MARITIME LEGISLATION. 
 
 changes proposed by the York rules — I call them for the moment 
 by their old name, because I am now referring to the state of 
 things when they were drawn up — all except two have been since 
 adopted into the law and practice of this country. At the time 
 when those rules were drawn up, it was an innovation on our 
 practice to propose that damage to cargo by opening the hatches 
 to make a jettison, or by derangement of stowage consequent on a 
 jettison, or by pouring down water to extinguish a fire, should be 
 treated as General Average ; or that damage either to ship or cargo 
 by a voluntary stranding should be treated as General Average 
 under any circumstances ; or that damage done to cargo by dis- 
 charging at a port of refuge should be treated as General Average 
 under any circumstances ; or that the deductions from the con- 
 tributory value of freight should be confined to those expenses 
 which were incurred subsequently to the General Average act. All 
 these innovations have now been adopted, some under the compul- 
 sion of legal decisions, others without that compulsion, into our 
 practice ; and in all these respects our practice at this day con- 
 forms to the very words of the York-Antwerp Kules. So much of 
 our labours at York and at Antwerp has borne fruit. This is a 
 fact which every adjuster knows or ought to know. The only 
 portion of our work which at this moment remains unaccomplished 
 is the carrying out of Rule 7, which is identical in substance with 
 the resolution we are now considering, and Rule 8, which declares 
 that the wages and maintenance of the crew during a vessel's de- 
 tention in a port of refuge ought to be replaced as General Average.' 
 As to the wages and maintenance of the crew during a vessel's 
 detention in a port of refuge, 1 can only repeat what I have on 
 ])revious occasions given as the result of my practical experience, 
 that if such expenditure is not Imul fide allowed, means are found 
 to recover tlicin under the (K'noniinalion of labourage, and if we 
 believe some of our friends who have been professionally engaged 
 at the Cape of Good Hope and at other ports frequently entered by 
 vessels in distress, the charges for labourage are often very much 
 in excess of what crews' Wiigcs and pi-ovisions during such stay 
 CI iiild jtossildv iniioiint In. 
 
 »>(• far as I lia\ c been aljle lo ascertain the case stands thus :
 
 INTERNATIONAL LAW OF GENERAL AVEUAOE. 270 
 
 wlu'R'as the Liverpool imd (Jkisgow adjustments are generally drawn 
 up in conformity with the ' Attwood v. Sellar ' case, i.e. — carrying 
 the principle involved in that case to its apparently legitimate ex- 
 tension in conformity with the York-Antwerp Rules — the London 
 adjusters continue still to adhere to the old practice in all cases 
 except those which are absolutely on all-fours with Attwood and 
 Sellar. 'I'liat such a difference of practice cannot continue stands to 
 reason, especially if it is considered that the York and Antwerp 
 Rules are inserted in almost all policies on ships and cargoes, so that 
 practically the work of their general adoption is steadily, although 
 slowly, going onwards. Further litigation will undoubtedly be re- 
 sorted to, and it is not improbable that at our next meeting we 
 may hear that our jurisprudence has made a fresh advance towards 
 that uniformity which has so long been our goal. 
 
 There is only one subject — and our much respected friend, Mr. 
 Lawrence R. Baily, having mentioned it in his opening address as 
 Chairman to the Average Adjusters' Association, my alluding to it 
 need scarcely require an apology — to which I wish to call the atten- 
 tion of the conference. 
 
 It is well known, and not only laid down by the most eminent 
 Judges and text- writers, but everywhere conceded, that the adjust- 
 ment of any General Average occurring in the course of a maritime 
 adventure is to be drawn up at the port of destination, and in con- 
 formity with the there prevailing laws, customs, or practices, what- 
 ever they are. On this point Mr. Baily stated : — 
 
 ' In most cases this would create no inconvenience, but when 
 as in ]\Iediterranean steamers, which have on board goods for and 
 from different countries, say England, Greece, Turkey, destined for 
 other countries, say Greece, Turkey, Spain, &c., the laws and 
 customs in each of which differ from those in every other — such 
 a doctrine would produce chaos. There is no one port of destina- 
 tion as regards all the cargo in such a case. Would it not be 
 reasonable and create less confusion if the law of the flag of the 
 ship were adopted in such a case ? General Average under such a 
 system would be intelligible, and all could protect themselves by 
 insurance against such a General Average.' 
 
 I think that the suggestion here made is worthy of the very
 
 280 MARITIME J.EGISLATIOX. 
 
 best consideration at the hands of all who have an interest in the 
 question ; but with how much more satisfaction would the altera- 
 tion be received if the York and Antwerp Rules had in the mean- 
 time secured the adhesion of all the leading maritime nations ! 
 
 I:s"ow the Transactions of the Association for the years 
 1881 (Cologne), 1882 (Liverpool), and 1883 (Milan) contain 
 only one sentence on this subject, and that is in the re- 
 port of the council to the Cologne Conference, which reads 
 
 thus : — 
 
 Mention has been made in the last report of the increasing 
 acceptance of the York and Antwerp Rules to regulate General 
 Average contributions, and the council have the satisfaction to 
 announce that these rules have become all but universally adopted. 
 
 This meant, of course, not by legal enactment or by 
 decisions of courts of law, but by agreement between 
 shipowners and merchants and their respective under- 
 writers. 
 
 I come now to the last legal feature as far as our English 
 jurisprudence is concerned on this subject, which is fully 
 set out in the following report which I read at the Hamburg 
 Conference of the Association in 1885, and runs thus : — 
 
 At the request of the executive council of this Association, I 
 luive undertaken to inform this meeting of such incidents as have 
 occurred in England with regard to the international law of 
 (General Average — as embodied in the York and Antwerp Rules — 
 since I had the honour of bringing the subject before the Berne 
 Conference (1880) of this Association. 
 
 I I was then my good fortune to report that, owing to a decision 
 of the Judges of the Queen's Bench Division, confirmed by the 
 unanimous judgment of the Lords Justices of the Court of Appeal, 
 it was settled law in England, that if a vessel had to put into a 
 ])<)]•{ of disi rcss in cons<'()n(iicc of a (iciicral Average act, all cx- 
 pfuises therel)y incurred i-liould In' apportioned ui)()n all the interests 
 of the maiifiiMC adventure.
 
 INTERiNATIONAL LAW OF GENERAL AVERAGE. 281 
 
 The language used in the judgments upon this occasion (Att- 
 wood V. Sellar) led some members of the Average Adjusters' 
 Association to consider themselves authorised to apportion in an 
 equal manner all port of distress expenses, even if the putting in 
 had not been caused by a General Average act. 
 
 This gave rise to another lawsuit (Svendson v. Wallace), which 
 was taken to the House of Lords, and has only lately been de- 
 cided there. 
 
 The circumstances of the case were that the Norwegian vessel 
 ' Olaf Trygvason,' with a cargo of rice from Rangoon to Liverpool, 
 met with heavy weather and sprang a serious leak, in consequence 
 of which the master was compelled, for the preservation of ship 
 and cargo, to put into St. Louis, Mauritius, where the vessel had to 
 be discharged and the cargo to be stored, and, after the comjiletion 
 of the vessel's repairs, to be re-shipped. 
 
 Now, according to the average adjustment, which our friend 
 Mr. Richard Lowndes issued in conformity with his interpretation 
 of the principles recognised in Attwood v. Sellar, the proportion 
 due from the owners of the cargo ex ' Olaf Trygvason ' amounted 
 to 7701. 2s. 4c?.; but, although the owners of the cargo — in con- 
 formity with an average statement drawn up by the well-known 
 London adjusters, Messrs. Wm. Richards & Sons — admitted their 
 liability to repay the cargo's proportion of the expenses of putting 
 into port, as well^s the landing charges and warehouse rent of the 
 cargo at St. Louis, amounting to 681?. 13s. It?., they denied their 
 liability to contribute to the expenses of re-shipping the cargo, and 
 ia the port charges, pilotage, and other expenses subsequent to 
 its reloading, amounting to 88/. 19s. 10c?. 
 
 Under these circumstances several witnesses were called at the 
 trial, whose evidence was to the efiFect that for sixty or seventy 
 years the practice of average adjusters had been in conformity with 
 the cargo-owners' contention, but the learned Judge held that this 
 was not evidence of a custom of trade which could be left to the 
 jury, a decision which was upheld by the Divisional Court in very 
 elaborate judgments delivered by Mr. Justice Grove and Mr. Justice 
 Mathew. 
 
 Thereupon a special case was agreed upon between the parties,
 
 282 MAUI TIME LE0I6LAT1UX. 
 
 and argued before Mr. Justice Lopes, who decided that ho was 
 bound by the principles hiid down in the case of Attwood v. Sellar, 
 and concluded his judgment as follows : — 
 
 ' It seems to me that the point relied on by the defendant, that 
 the expenses of going out of port are not chargeable to General 
 Average because the cargo is in safety when the port is reached, is 
 unsustainable. The cargo is in safety when the port is reached ; 
 still it must be admitted that the expenses of unloading are Gene- 
 ral Average expenses. Such an argument would be equally cogent 
 whether the cause of putting into port was a General or a Particular 
 Average damage. In Attwood v. Sellar, however, it was held that 
 the expenses of going out of port were General Average expenses. 
 I am of opinion that the plaintiffs are entitled to judgment for 
 88/. 19s. lOd. with interest in the usual way and costs. I have 
 not thought it necessary to cite authorities. So far as the prin- 
 ciple involved in Attwood v. Sellar is concerned, the authorities are 
 most exhaustively dealt with by Thesiger, L.J., in his most able 
 judgment in that case in the Appeal Court. With regard to the 
 other question raised in this case not decided in Attwood v. Sellar, 
 there is little authority to be found.' 
 
 The cargo-owners, not content with this decision, took the case 
 to the Court of Appeal, where the Master of the Rolls and Lord 
 Justice Bowen pronounced judgment in their favour, Lord Justice 
 13aggallay, the other member of the Court, being of a contrary 
 opinion. From a perusal of the judgment delivered by the Master 
 of the Rolls (Sir Wm. Baliol Brett), ^ it will be seen that he con- 
 demns the principle upon which the York and Antwerp Rules were 
 based, and which was approved of by five of the most learned of our 
 Judges in the Attwood v. Sellar case — the principle that the common 
 benefit or the completion of the maritime adventure should be the 
 guiding motive of the General Average law. lie insists upon the 
 axiom that as soon as the common safety of the maritime adventure 
 is insured from danger of total loss, no apjiortionment of any further 
 expenses may take jilace. 
 
 Tin- iiK'iiibcr^ of tin's Association will easily understand the line 
 
 ' Now Lord Ebhcr.
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 283 
 
 of argument of the Muster of the llolls from the following passage 
 out of his judgment : — 
 
 ' The governing principle or proposition, which has been adopted 
 in its terms by a succession of English Courts as the true statement 
 of the governing principle, is that which was stated by Mr. Justice 
 Lawrence in Birkley v. Presgi'ave. It has been considered to be 
 one of the many happy expositions of mercantile law made by that 
 learned person, in terms so broad and yet so accurate as show that 
 lie was one of the greatest mercantile lawyers W'ho has ever adorned 
 our profession in this country. His proposition is thus expi-essed : 
 " All loss which arises in consequence of extraordinary sacrifices 
 made or expenses incurred for the preservation of the ship and 
 cargo come within General Average, and must be borne proportion- 
 ably by all who are interested." This proposition, read with regard 
 to expenses, will read thus : All loss which arises in consequence 
 of extraordinary expenses incurred for the preservation of the ship 
 and cargo comes within General Average. But the loss which 
 arises from an expense is the expense itself. Therefore, we must 
 read thus : Every expense incurred for the preservation of the slii}) 
 and cargo comes within General Average. Applying this rule in 
 its ordinary sense to each item successively claimed as an item of 
 expenditure in respect of which a General Average contribution in 
 any given case is due, the question must be : was the item of ex- 
 penditure at the moment it was incurred, incurred for the safety 
 of both the ship and cargo ? The word " benefit " is not used by 
 Mr. Justice Lawrence, but it is used by Lord Kenyon in the same 
 case. He says: " for the benefit of the whole concern." But the 
 word " benefit," thus used by him with regard to the same facts in 
 the same case in a judgment agreeing with the judgment of Mr. 
 Justice Lawrence sitting by his side, must have been intended to 
 mean the same as the word " preservation " used by that learned 
 Judge. The words have been usually used as equivalent.' 
 
 Lord Justice Bowen arrived at the same conclusion in a very 
 elaborate judgment, in which he criticises the arguments used by 
 the late Lord Chief Justice Cockburu and the late Lord Justice 
 Thesiger in the Attwood r. Sellar case, and his observations can- 
 not but remind one of the time when in (Jhisgow, Loudon, York,
 
 284 MARITIME LEGISLATION. 
 
 aud Antwerp, the same arguments were used in behalf of what 
 was then called Lloyd's practice. 
 
 The terms in which Lord Justice Baggallay announced his 
 dissent from the conclusions to which his two colleagues arrived 
 were as follows : — 
 
 ' I feel bound to express the opinion at which I have arrived, 
 aud to state concisely the reasons by which I have been influenced 
 in forming that opinion. In doing so I propose, in the first place, 
 to compare the circumstances under which tlie decision in Attwood 
 V. Sellar was arrived at, with those with which we have to deal on 
 the j)resent appeal ; for conciseness and convenience of comparison 
 I will refer to the ships as A and B, and will deal with them as 
 having encountered the same storm and as having sought the same 
 port of refuge. The circumstances may be then stated as follows : 
 two ships, A aud B, each on a voyage from a foreign port to Liver- 
 pool, and having a valuable cargo on board, encountered a violent 
 storm; the master of A, to avoid a more serious injury, cut away 
 one of his masts ; B sprang a dangerous leak ; both, for the safety 
 of ship and cargo, put into a port of refuge to repair the injuries 
 they had sustained ; to effect such repairs and to enable the ships 
 to prosecute their respective voyages, it became necessary in the 
 case of each ship to discharge the whole or a portion of her cargo ; 
 in addition to the port dues and other expenses incident to her 
 entering the port, further expenses were incurred in respect of each 
 ship in unloading, warehousing, and reloading her cargo whilst she 
 remained in port, and for pilotage and other charges on leaving the 
 port to prosecute her voyage. 
 
 ' The only difference between the circumstances of A and those 
 of B was in the nature or character of the injury, which occasioned 
 lier putting into port. The cutting away of one of the masts of 
 A was the subject of General Average; in other words, her putting 
 into the port of refuge was occasioned by a General Average sacri- 
 fice ; whilst the putting into port of B was occasioned by her 
 springing a dangerous leak, which was a I'articular Average loss. 
 But in each case the putting into port for the safety of ship and 
 cargo was an act of sacrifice giving rise to claims for General Average 
 contril;ution ; in the case of A thia act of sacrifice followed, or was
 
 INTET^NATIONAL LAW OF GENERAL AVERAGE. 285 
 
 a continuation of the orif^inal act of .sacrifice, whilst in tho case of 
 B. it was itself the original act of sacrifice ; in each case the 
 proximate cause of the extraordinary expenses incurred was tho 
 putting into tlu^ port of refuge. 
 
 'If it had been left to average adjusters, previously to the de- 
 cision in Attwood v. Sellar, to adjust tho losses in respect of tho 
 expenses incurred by tho two ships, they would, in accordance 
 with a practice of many years' duration, have dealt with them as 
 follows : in respect of each ship they would have treated the ex- 
 penses incurred in entering the port and of discharging the cargo 
 as General Average, those incurred in warehousing the cargo as 
 Particular Average on the cargo, and the pilotage and other 
 charges incidental to leaving the port as Particular Average on 
 freight ; the fact that in the case of A the putting into port was 
 occasioned by a General Average sacrifice, whilst in the case of 13 
 it was occasioned by a Particular Average loss, would in no way 
 have affected the adjustment of the losses incurred by reason of 
 the putting into port; and properly so, if I am correct in the 
 view which I have expressed, that in each case the putting into 
 port was an act of sacrifice and the foundation of a claim for 
 General Average contribution. 
 
 'That the practice of the average adjusters was based upon the 
 principle that the putting into port to refit is in itself an act of 
 sacrifice, is evidenced by their treating the expenses incidental to 
 entering the port of refuge and of discharging the cargo as the 
 subject of General Average contribution ; upon no other principle 
 could the practice be supported. But the decision in Attwood v. 
 Sellar established that, whilst the practice of the average adjusters 
 was in accordance with legal principles, so far as it treated the 
 expenses of entering the port of refuge and of discharging the 
 cargo as the subject of General Average contribution, it M-as 
 erroneous, in the case of A, in limiting the expenses, which were 
 the subject of General Average contribution, to those last men- 
 tioned, and that the expenses of warehousing and reloading the 
 cargo and those incidental to leaving the port were equally the 
 subject of General Average contribution. But if, in the case of 
 A, the expenses of warehousing and reloading the cargo and of
 
 28G MAIITTIME LEGISLATION. 
 
 leaving the port were properly held to be the subject of General 
 Average contribution, I am unable to suggest any reason, satisfac- 
 tors' to mvself, why the like principle should not be applied in the 
 case of B ; in that case the expenses of unloading, warehousing, 
 and reloadino" of the cargo and the coming out of port were as 
 consequent upon the putting into port as they were in the case of 
 A ; if they ought not to be treated as the subject of General 
 Average contribution in the case of B they ought not, according 
 to the view which I take of the circumstances of the two cases, to 
 have been so treated in the case of A, 
 
 ' It has been pressed upon us in argument that in the judgment 
 which was delivered in Attwood v. Sellar care was taken to avoid 
 intimating any opinion as to how a case similar to that now under 
 consideration should be dealt with, I cannot assent to this view 
 of the scope of the judgment ; it is doubtless true that it was not 
 intended to express any decided opinion upon the question referred 
 to, but attention is distinctly directed to the case of a ship which 
 has been damaged by perils of the sea, and has subsequently put 
 into a port of refuge, and a distinction as regards any claim to 
 General Average contribution is drawn between a case in which 
 the goods are unshipped and in safety, and the common danger 
 consequently at an end, before the ship puts into port, and one in 
 which the goods are not unshipped until after the ship has put 
 into port, and in which there is consequently a common danger at 
 the time -when the ship put into port. And similar views are 
 indicated in the comments upon the case of Job v. Langton. For 
 the reasons which I have thus concisely stated, I am of opinion 
 that Lopes, J., arrived at a correct conclusion, and that the appeal 
 should be dismissed.' 
 
 Strangely enough, the expectations which were formed, by the 
 mercantile community in general, of the view the learned members 
 of the House of Lords would take of the case have not been fulfilled. 
 After very long arguments, the apparently unanimous opinion of 
 Lord Blackburn, Lord Watson, and Lord Fit/(Jerald, before whom 
 the hearing took place, was delivered by Lord Blackburn on 
 May 12 last. The House dismissed the appeal, thereby ratifying 
 the views of tlie Master of the Uolls and TiOrd Justice Bowen, and
 
 INTEIINATIONAL LAW OF GENERAL AVEEAGE. 287 
 
 clissonting from those of Mr. Justice Lopes and Lord Justice 
 Baggallay. 
 
 Lord Blackburn, at the commencement of his judgment, 
 minutely stated tlie course usually adopted in matters of this 
 description, as far as the settlements between the interests to a 
 maritime adventure were concerned. Having then given a full 
 history of the case, and explained what caused the ' 01 af Tryg- 
 vason ' to enter the port of distress, what happened there with 
 respect to her, and how the different contentions ultimately arose, 
 he proceeded as follows : — 
 
 'In Simonds v. White (2 Bamewall & Cresswell, 111) Chief 
 Justice Abbott says : " The principle of General Average, namely, 
 that all whose property has been saved by the sacrifice of the 
 property of another shall contribute to make good his loss, is of 
 very ancient date and of universal reception among commercial 
 nations. The obligation to contribute, therefore, depends not so 
 much upon the terms of any particular instrument, as upon a 
 general rule of maritime law. The obligation may be limited, 
 qualified, or even excluded, by the special terms of a contract as 
 between the parties to the contract, but there is nothing of that 
 kind in any contract between the parties to this cause. There are, 
 however, many variations in the laws and usages of different nations 
 as to the losses which are considered to fall within this principle." ' 
 
 His lordship drew from this judgment the well-known and 
 generally adopted conclusion that average statements have to be 
 made in conformity with the laws of the port of destination. Ho 
 then approved of Mr. Justice Manisty's dictum in Attwood v. Sellar 
 to the effect ' that general practice, long continued amongst English 
 adjusters, affords strong ground for thinking that the practice is one 
 which is not in general inconvenient, and that it throws a consider- 
 able onus on those who impugn it to show that the particular cir- 
 cumstances are such as to render an adherence to the practice in 
 that case against principle.' 
 
 His lordship continued : — 
 
 ' Before proceeding further, I think it desirable to consider what 
 is the question raised on the issue reserved for further consideration. 
 The plaintiffs claimed the sum which ^lessrs. Lowndes and Ryley
 
 288 M.VRITDIE LEGISLATION. 
 
 made payable, viz. 7701. The defendants had paid the sum which 
 Messrs. W. Richards and Sons made payable by them. The issue 
 was whether all that was really due had been paid. It is to be ob- 
 served, first, that the points on which Messrs. W. Eichards and 
 Sons differ from ]\ressrs. Lowndes and Ryley are not all in favour 
 of the defendants. If the 190L, which represents the warehousing 
 rent, and fire insurance, is properly charged to cargo, the defendants 
 have to pay the whole of it. If it is properly charged to General 
 Average, they have only to pay their proportion of it, or somewhat 
 less than one-half That, if it stood alone, would make nearly 1001. 
 more payable by the defendants. But if the 450/., which is the 
 cost of re-shipping, is properly charged to freight, the defendants 
 are not liable to pa}^ any portion of it. If it is properly charged 
 to General Average they would have to pay about half of it. So 
 that that item makes a difference of about 2301. If, in addition, 
 the 20/. for the cost of going out of port is properly chai'ged to 
 freight, that makes a further difference of about 10/. It is not, 
 therefore, necessary to decide anything more than whether these 
 two items are, under the circumstances of the case, properly 
 chargeable to General Average or not. If they are not so charge- 
 able, the order appealed against is right, for the defendants have 
 paid enough, and more than enough, whether the 190/. is properly 
 chargeable to cargo or not, and it is unnecessary to consider that 
 Cjuestion, except in so far as it may throw light on the principles 
 which are to guide the decision of the first and most important one. 
 ' I do not think it necessary to inquire what would be the proper 
 course, if the seeking the port of refuge had been solely for the 
 purpose of doing repairs, the cargo not being in any danger. Such 
 a case may perhaps sometimes, though rarely, occur. Nor do I 
 think it necessary to inquire what would be the proper course if the 
 ship and cargo were both safe in the harbour of refuge, and the un- 
 loading of the cargo was entirely for the purpose of facilitating the 
 r(!pairs. Such a case seems more likely to happen than that first 
 supposed. I think, on examining the two adjustments, and exer- 
 cising the power which 1 liave assumed to be given, there can be 
 no doubt that the cargo on board the ship, leaking to the extent 
 which she did, was not safe even in harbour until the ship was so
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 289 
 
 far lio-htenod that she could be taken into drv dock. Should the 
 expense of reloading her, after the repairs were made, be charged 
 to freight, the goods having been taken out under such circum- 
 stances? I think it should. 
 
 ' I am afraid I have not understood the reasoning on which Chief 
 Justice Cockburn, in his judgment in Attwood v. Sellar (Law 
 Reports, 1- Q. B. D. 354) comes to a contrary conclusion. If I 
 have, I must express dissent from it. 
 
 ' The ordinary contract between shipowner and merchant is 
 that the goods shall be carried to their destination, and shall there 
 be delivered, unless prevented by the excepted perils. And this 
 generally should be done in the original ship. Whenever the ship 
 is disabled it must, in order literally to fulfil this contract, be 
 necessary to repair the ship so far as to make her fit to carry on 
 the cargo, and if any part of the cargo has been taken out, to 
 reship it.' 
 
 And in Rosetta v. Gurney (11 Common Bench, 188) the decision 
 of the Court comes to this : — 
 
 ' "If the voyage is completed in the original ship it is com- 
 pleted upon the original contract, and no additional freight is 
 incurred. If the master tranships because the original ship is 
 irreparably damaged without considering whether he is bound to 
 tranship or merely at liberty to do so, it is clear that he tranships 
 to earn his full freight, and so the delivery takes place upon the 
 original contract." There never was in the present case any ques- 
 tion as to the " Olaf Trygvason " being irreparably damaged ; but she 
 was so far damaged that it was certain that there would be some 
 delay (it turned out to be about six weeks) before the " Olaf Tryg- 
 vason " was in a fit state to carry the goods on to Liverpool. 
 And if there had been a good ship at St. Louis willing to carry 
 the goods to their destination for less than the agreed freight from 
 Rangoon, it might have been for the benefit of all that the goods 
 should be shipped on that vessel at once, carried on and delivered 
 to the consignee without delay. Such was the course pursued in 
 Shipton V. Thornton (9 Adolphus & Ellis, 314), where the original 
 shipment was from Singapore to London in the " James Scott."' 
 She put into Batavia in distress, and there the goods were tran-
 
 290 MARITIME LEGISLATION. 
 
 shipped into tbe " Mountaineer " and tbe " Sesostris," canned to 
 London, and there delivered to the owner of the " James 8cott," at 
 a cost less than the amount of freight which he would have earned 
 had the goods been carried on in the " James Scott." He delivered 
 them to the consignee, who produced the original bill of lading 
 by the " James Scott." The consignee refused to pay freight at the 
 rate in the bill of lading of the " James Scott " from Singapore to 
 London, though he paid that from Batavia agreed in the bills of 
 ladingr of the " Mountaineer " and the " Sesostris." The decision 
 was, that whether or not the captain was bound to tranship he was 
 at liberty to do so, and having done so, had earned his full freight. 
 The expense Avliich he had incurred to earn it being certainly not 
 General Average, but I think a Particular Average, paid by the 
 shipowner to earn his freight. My conclusion is that if, instead 
 of transhipping, the captain waits till the original ship is repaired, 
 and then re-ships on that original ship, the cost of so doing should 
 not be General Average but Particular Average to earn the full 
 freight. Chief Justice Cockburn seems to think that in all cases 
 where the ship is disabled, whether she can be repaired or not, the 
 original contract is dissolved and a new one formed by law. This 
 seems to me in direct conflict with the two decisions I have just 
 cited ; and even if it were so, I think it is somewhat in the nature 
 o^ a j^Gtitio princijni to say that one of the terms of the new con- 
 tract should be that the cost of transhipment or re-shipment, as the 
 case may be, should be General Average. 
 
 ' The judgment, however, of the Court of Appeal, delivered by 
 Lord Justice Thesiger, does not proceed on this ground. I have 
 some diflSculty, after reading the statement as to the grounds on 
 which the Court of Appeal proceeded, given by Lord Justice Bag- 
 gallay in his judgment in the present case, in saying on what 
 ground it does proceed. 
 
 ' The special case in Attwood v. Sellar was express that the ship 
 was injured by a voluntary sacrifice, and was theri'by compelled to 
 put into Charleston to re])air the said damage. It is not expressly 
 said either way whether the carg(j wns in any danger. Lord 
 Justice Baggallay, who was a i)arty to lluit judgment, says that it 
 was (Icridi'd on I lie groiiiid tlint jxilliiia' iiHo \]]c ]>()i-f of refuge was
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. 201 
 
 necessary for the safety of both sliip and cargo, and that he, at 
 least, thouglit that it was immaterial what was the cause of tliat 
 necessity. Yet I think there is much reason for doubting if Lord 
 Justice Thesiger quite agreed in this. He says : " The principle 
 which underlies the whole law of General Average contribution is 
 that the loss, immediate and consequential, caused by a sacrifice 
 for the benefit of cargo, ship, and freight, should be borne by all. 
 This principle is in the abstract conceded by counsel for the de- 
 fendants, and its application to the present case is admitted to 
 the extent of allowing the expenses of unloading the goods, for the 
 purpose of doing the necessary repairs to enable it to proceed on 
 the voyage, to be the subject of General Average contribution ; but 
 they attempt to distinguish such expenses from those of ware- 
 housing and reloading the cargo, and of outward port and pilotage 
 charges, by the suggestion that the common danger to the whole 
 adventure is at an end when the goods are unloaded, and that 
 General Average ceases at the point of time when the common 
 danger ceases." This is, I think, a fair statement of the argument 
 of the respondents' counsel in the present case. Afterwards, he 
 says : " The going into port, the unloading, warehousing, and re- 
 loading, are at all events parts of one act or operation contemplated, 
 resolved upon, and carried through for the common safety and 
 benefit, and properly to be regarded as continuous." This was 
 much relied on by the counsel for the respondents. If I thought 
 it was the state of the case before the House, I should consider 
 whether, in such a case, it might not fairly be argued that the 
 whole of these operations were to be considered as parts of the ex- 
 pense of repairing the damage, and therefore in a case where the 
 cause of the damage was such that the expense of repairing it 
 ought to be borne by all, as was the case in Attwood ?\ Sellar, to 
 be borne by all ; but that in a case where the cause of the damage 
 was such that the expense of repairing it ought to be borne by the 
 ship only, which is the present case, to be borne by the ship only. 
 But having come to the conclusion that such is not the state of 
 the case before the House, I do not enter into this inquiry. 
 
 * Having come to the conclusion that, under the circumstances 
 of this case, the expenses of reloading, &c., should not he ])laced
 
 292 MArtlTIME T.EGTSLATION. 
 
 to General Average, and that being enough, if your lordships agree 
 with me, to show that the respondents have paid more than enough, 
 it is not necessary to consider whether the smaller sum of 20/. 
 ought also to have been charged to ship or freight and not to 
 General Average. I agree with Lord Justice Bowen in what he 
 savs at p. 90, that that is a more difficult question than the 
 other. And as the amount is not sufficient to turn the scale, it is 
 not necessary to decide it. I should think it seldom involved any 
 sum so great as to be of practical importance, and I prefer leaving 
 it undecided. 
 
 'I shall therefore move that the Order appealed against be 
 affirmed, and the appeal dismissed ; the appellants to pay the 
 costs.' 
 
 It is sincerely to be regretted that this report must end with 
 a communication so unsatisfactory to the members of this Associa- 
 tion, who had every reason to expect, from the general applause 
 with which the York and Antwerp Rules were accepted by the 
 mercantile community in general, that the judicial luminaries of 
 this country would, with an overwhelming majority, sanction the 
 principles therein adopted, and thereby proclaim the uniformity of 
 the law of General Average. Instead of this we now have the 
 declaration of the highest tribunal of the land that the uniformity 
 arrived at for more than a quarter of a century by the mercantile 
 communities of the principal nations of the world cannot be 
 sanctioned. And why? Because the view that the interests to 
 a maritime adventure are bound together till its termination, the 
 ' common benefit' theory of all other maritime nations, has not found 
 puch favour with some of our English adjusters as to induce them 
 to give up thi'ir favourite ' common safety' theory. 
 
 Before I conclude, I would state that the Association of Average 
 Adjusters in London, which has been in existence since 1873, for 
 the purpose of securing the greatest possible uniformity in the 
 preparatif)n of average statements entrusted to the adjustment of 
 flicir iii(li\idiial members, have agreed ui)on the following rides of 
 ])ractice in adjusting claims:- —
 
 INTERNATIONAL LAW OF GENERAL AVERAGE. i9;3. 
 
 Gontrihatonj Value of Frevjht. 
 
 That freight at the risk of the shipowner shall contribute to 
 (JcntTal Average upon its gi'oss amount, deducting the whole of, 
 and no more than, such port charges as the shipowner shall incur 
 after the date of the General Average act, and sucli wages of the 
 crew as the shipowner shall become liable for after that date. 
 
 Basis of Contribution to General A verage. 
 
 When property saved by a General liverage act is injured or 
 destroyed by subsequent accident, the contril)utiiig value of that 
 property to a General Average which is less than the total con- 
 tributing value, shall, when it does not reach the port of destina- 
 tion, be its actual net proceeds ; when it does it shall be its actual 
 net value at the port of destination on its delivery there ; and in 
 all cases any values allowed in General Average shall be added to 
 and form part of the contributing value as above. 
 
 The above rule shall not apply to adjustments made before the 
 adventure has terminated. 
 
 Damage hij Water used to Extinguish Fire. 
 
 That damage done by water poured down a ship's hold to 
 extinguish a fire, be treated as General Average. 
 
 Damage caused hg Water thrown upon Burning Goods. 
 
 That goods in a ship which is on fire, or the cargo of which is 
 on fire, affected by water voluntarily used to extinguish such fire, 
 shall not be the subject of General Average if the packages so 
 affected be themselves on fire at the time the water was thrown 
 u])on them. 
 
 Towage from a Fort of Befuge. 
 
 That if a ship be in a port of refuge at which it is practicable 
 to repair her, and if, in order to save expense, she be towed thence 
 to some other port, then the extra cost of such towage shall be 
 divided in proportion to the saving of expeni^e thereby occasioned 
 to the several parties to the adventure.
 
 294 MARIIIME LEGISLATION. 
 
 Canjo Funcardcd frum a Port of Refwje. 
 That if a ship be in a port of refuge at which it is practicable 
 to repair her, so as to enable her to carry on the whole cargo, but, 
 in order to save expense, the cargo, or a portion of it, be tran- 
 shipped br another vessel, or otherwise forwarded, then the cost of 
 such transhipment (up to the amount of expense saved) shall be 
 divided in proportion to the saving of expense thereby occasioned 
 to the several parties to the adventure. 
 
 Agency Fees Charijeahle hij SJiqioicners. 
 
 That neither interest nor commission (excepting bank commis- 
 sion), nor any other charge by way of agency or remuneration for 
 trouble, is allowed to the shipowner in General Average or Parti- 
 cular Average on ship, or as a special charge in respect of pay- 
 ments made, or services rendered, at the port at which the managing 
 owner for the time being resides, excepting that a commission or 
 agency fee is allowable in respect of payments made, or services 
 rendered on behalf of cargo, when such payments or services are 
 not involved in the contract of affreightment. 
 
 Damage caused to Cargo dnring Forced DiscJtarge. 
 
 That whenever the cost of discharging cargo is General Average, 
 all loss or damage necessarily arising to cargo therefrom shall be 
 allowed in General Average. 
 
 From the foregoing pages, I think, the readers of this 
 ^•olunle will gather, with great satisfaction, that, although 
 the intention to prepare a code of General Average by 
 general consent of those most interested in the commerce 
 of tlie world, lor the purpose of submitting it to their 
 respective Governments to be enacted by them as laws, 
 lias not been realised, the intricate and very puzzliiig 
 su])ject of General Average has been so thoroughly thrashed 
 out, that those who are really anxious for uniformity will 
 not li;i\(' iiuicli (lilUciilly in ohiaining it il" they choose to 
 ronlinue 1o expose the lallacN' ol" the ' eomnion safety' 
 theo)\'.
 
 295 
 
 II. 
 
 THE INTERNATIONAL LAW OF AFFREIGHT- 
 MENT IN CONNECTION WITH THE AT- 
 TEMPTS TO AGREE UPON UNIFORMITY 
 IN THE WORDING OF BILLS OF LADLXG. 
 
 The York Compress of 1804 having resulted in an aji^ree- 
 nient upon certain principles or rules of General Average, 
 the attempt naturally followed to come to some similar 
 arrangement upon the subject of Freight, as it was evident 
 that a uniform system of General Average could not be 
 put into practice unless there was an agreement as to the 
 payment of freight where the ship is condemned and the 
 cargo forwarded, where the cargo is sold at an inter- 
 mediate port, and in other cases wliere the voyage is 
 interrupted. With the object, therefore, of setting this 
 matter in motion, the able delegates of the Belgian Go- 
 vernment to the International General Averao-e Cono;resses, 
 Messrs. Theodore C. Engels and Edouard van Peborgh pre- 
 pared the following ' projet de loi ' : — 
 
 Projet de Loi. 
 
 1. To establish as a general rule that freight shall not be due 
 until the voyage be accomplished, i.e. until delivery of the cargo at 
 the port of destination. 
 
 2. If in the course of the voyage the ship, in consequence of 
 the perils of the sea, and not through any default on the part of 
 the captain or owner, has become unseaworthy and not in a state 
 to accomplish her voyage, the captain shall ho bound to forward
 
 296 MARITIME LECilSLATIOX. 
 
 the cargo to its destination by other vessel or vessels, and in this 
 case he shall, upon delivery, have a claim for the whole of the freight 
 due under the original charter-party (or bill of lading), although, 
 in consequence of the cargo having been forwarded, the goods have 
 been transported at a lower freight. But the captain of the original 
 vessel is liable for the forwarding freight. 
 
 If, on the contrary, the forwarding freight is equal or greater 
 than the original freight, the captain can claim no freight, but the 
 owner of the cargo will be liable for the whole of the forwarding 
 freight. If the captain does not forward the cargo he has not any 
 claim for freight. 
 
 The system o^ pro raid freight is entirely abolished. 
 
 3. If the owner of the cargo, or any part of it, wish to with- 
 draw it before the termination of the voyage, in spite of the offer of 
 the captain to forward it to its destination, such owner, upon taking 
 deliveiy at an intermediate port or place, shall be liable for freight 
 for the whole voyage, and shall give good and sufficient bail for any 
 General Average or salvage expenses which may attach to the same. 
 
 4. The entire freight is due upon goods jettisoned or sacrificed 
 for the common benefit, and for those sold to raise the necessary 
 funds for defraj'ing expenses incurred for the common benefit. 
 
 5. No freight is due upon goods lost by perils of the sea, nor 
 for those taken by public enemy or by pirates. Nor upon any goods 
 sold or destroyed in consequence of perils of the sea, in any port 
 or place other than the port of destination. 
 
 6. If the ca])tain savt* the goods from shipwreck, or if he re- 
 (•■ajtture them from the enemy or from pirates, and if, being in a 
 state to be ti-ans]X)rted to their destination, he delivers them, then 
 he shall In- fiifitlcd to the whole freight; if not, he shall be entitled 
 to none. 
 
 7. Tlh' tiit.il IViiglil is diir U|Hiti delivery of the cargo at the 
 port of destination, although diminished or deteriorated by perils 
 of tlie sea, if the consignee takes delivery, and in this case the 
 consignee is bound to take delivery of all consigned to him by the 
 '^.'Mne shipper, and iiol In elioose the Sdund ;iiid reject the damaged. 
 
 If the consignee will noi taki- dcli\(i-y, I lie ca])tain, after due 
 autlion'sation. may sell such goods to jiay his freight, ])ut lor any
 
 INTEUNATIONAL LAW OF AFFIIEIGIITMKNT. 297 
 
 deficiency has no resource against the consignee or shipper except 
 there be an express stipulation to that effect. 
 
 8. The freight paid in advance is always liable to be refunded 
 in all cases involving non-payment of freight, excejit wherti it is 
 stipulated to the contrary. 
 
 9. The contribution of the freight to General x\verage shall be 
 regulated according to the first parngraph of Article X. of the 
 York rules. 
 
 This ' projet de loi,' after Leing submitted to tlie 
 Executive Council of the National Association for the 
 Promotion of Social Science, was transmitted to all tliose 
 Governments, bodies of Underwriters and Chambers of 
 Commerce which had appointed delegates to the three 
 previous congresses at Glasgow, London, and York, the 
 followin<Tf circular beings sent with it : — 
 
 National Association for the Promotion of Social Science. 
 
 1 Adam Street, Adelphi, London, W.C. 
 July 1, 1865. 
 
 Sir, — The success of the congress for the promotion of our 
 international law of General Average has encouraged the hope that 
 similar advantages may flow from a conference upon the still more 
 important though less intricate question of Freight. 
 
 Messrs. Theodore C. Engels and Edouard van Peborgh, the 
 able representatives of the Belgian Government at the York Con- 
 ference, have drawn up a ' projet de loi ' in nine clauses, two copies 
 of which are here annexed. 
 
 The Council will feel obliged if your body will return to them, at 
 your early convenience, one of these copies and state thereon, first, 
 whether each clause agrees with the law of your port ; if not, what 
 is the law. Secondly, whether you agree with Messrs. Engels 
 and Peborgh as to their views of what the law ought to be, and if 
 not, what you consider ought to be the law. 
 
 The conference will meet at Sheffield during the meeting of 
 the Association on October I. when it is hoped your body will be 
 represented.
 
 298 MARITIME LEGISLATIOX. 
 
 It will be interesting to jou to learn that the reason that a Bill 
 
 for General Average has not yet been brought into Parliament, is 
 
 that Her Majesty's Government are in communication with the 
 
 French Government with a view to simultaneous action. — I am, 
 
 Sir, 
 
 Yours obediently, 
 
 Geokge W. Hastings, General Secretanj. 
 
 Altliougli, fi'om the scanty replies received in answer 
 to this circular, it was evident that such an attendance 
 as had been present at the congresses on International 
 General Average would not be attracted by the subject 
 of Freight, the necessary arrangements were made for a 
 full discussion of this important matter, and the first 
 meeting took place at Sheffield on October 5, 18G5, under 
 the presidency of Sir Eobert I. Phillimore, D.C.L., then 
 Her Majesty's Advocate-General. 
 
 Mr. rniLip H. Rathboxe (President of the Liverpool Chamber 
 of Commerce) undertook the duties of honorary secretary, and 
 opened the proceedings with some remarks on the importance of 
 the measure to be discussed and the steps which had been taken 
 for the purpose of preparing an influential meeting for its consider- 
 ation. He then reported communications from Lord Stanley, M.P., 
 ]\rr. Scholefield, M.P., Mr. A. de Courcy, the Board of Trade, the 
 Cliambers of Commerce at Antwerp, Bristol, Bremen, Dundee, 
 lldiiiburgh, Glasgow, Gloucester, Hull, Leith, and Tynemouth, 
 the Shipowners' Associations of Glasgow, Greenock, and Sunder- 
 land, the General Shipowners' Association of London, the Liver- 
 })Ool Law Society, the Liverpool Steamship-owners' Association, 
 the Committee of Lloyd's, and the Association for the Protection of 
 (.'ommercial Interests as respects Wrecked and Damaged Property 
 in London. The discussions were commenced by Mr. Engels 
 moving, and Mr. Van Peborgh seconding, the adoption of 
 
 Clause I. — ' As a general rule the freight is not due until the 
 voyage be accomplished, i.e. until delivery of the cargo at the port 
 (•'f dcf-tination.' 
 
 I
 
 INTERNATIONAL LAW OF AFFULIGIIT.MKNT. 2'J9 
 
 After ca few comments, the clause was agreed to with the follow- 
 ing addition : ' unless where a special agreement is made to the 
 contrary.' 
 
 It may be here remarked that all the clauses were moved and 
 seconded by the above-named Belgian delegates. 
 
 Clause II. — ' If in the course of the voyage the ship, in con- 
 sequence of the perils of the sea, and not through any default on 
 the part of the captain or owner, has become unseaworthy and not 
 in a state to accomplish her voyage, the captain shall forward the 
 cargo to its destination by other vessel or vessels, and in this case 
 he shall, upon delivery, have a claim for the whole of the freight 
 due under the original charter-party (or bill of lading), although, 
 in consequence of the cargo having been forwarded, the goods have 
 been transported at a lower freight. But the captain of the original 
 vessel is liable for the forwarding freight. 
 
 ' If, on the contrary, the forwarding freight is equal to or 
 greater than the original freight, the captain can claim no freight, 
 but the owner of the cargo will be liable for the whole of the for- 
 warding freight. 
 
 ' If the captain does not forward the cargo, he has not any claim 
 for freight. 
 
 ' The system of j^ro rata freight is entirely abolished.' 
 
 I suggested the omission of the words from ' in consequence ' 
 to the words ' or owner ' inclusive, remarking that if the ship 
 became unseaworthy, from whatever cause, the master should be 
 bound to forward the cargo. Having done so, he would have done 
 his duty to the owners of such cargo, and had therefore a claim to 
 the full freight originally agreed upon. In the clause should be 
 inserted words to show that the master was bound to forward, but 
 only if vessels were obtainable within a reasonable distance or at 
 reasonable terms. The words as they stood looked as if the master 
 might be forced to build a vessel on purpose, and it would surely 
 not be right for him to forward if he was convinced that the freight 
 demanded by the only vessels procurable would exceed the value of 
 the goods at the port of destination, and he could not be bound to 
 forward goods unless in a lit state to be forwarded. In the second 
 part of the clause the words relating to the clause oi' unseaworthiness
 
 300 MAEITIME LEGISLATION. 
 
 might with propriety be inserted, because, if the ship had become 
 imseaworthy from the causes other than the perils of the sea, the 
 owner of the ship should be liable to make good any excess of 
 freio-ht. The master's claim for freight should only be when the 
 freight of the substituted vessel w^as larger than the original freight. 
 The clause would be better to stand thus : — 
 
 ' If in the course of the voyage the ship has become unsea worthy, 
 and not in a state to accomplish the voyage, the master shall be 
 bound to forward the cargo to its destination by other vessel or 
 vessels, should such be obtainable on reasonable terms and the 
 cargo be in a condition proper to be forwarded, and he shall, vipon 
 delivery, have a claim upon the whole of the freight due under the 
 original charter-party (or bill of lading), when the goods have 
 been transported at a lower or equal freight. But in this case the 
 master of the original vessel is liable for the forwarding freight.' 
 
 I then moved this as an amendment, and it was seconded by 
 Mr. Whit will (Bristol). 
 
 Mr. R. M. Hudson (Sunderland) thought, if the ship w\as not 
 seaworthy on commencing her voyage, the shipowner was clearly 
 liable to all the consequences of her voyage being terminated before 
 the cargo was brought to its destination. 
 
 Mr. Rathbone moved the erasure of the words ' shall be bound 
 to forward ' and the substitution of the following : ' act as agent 
 for the owner of the cargo, and, if prudent and practicable, to be 
 forwarded.' 
 
 Mr. Whjtwill seconded this proposal. 
 
 Mr. Robertson proposed to add after the words ' shall be 
 bound ' these : ' under the forfeiture or penalty of 50 per cent, of the 
 freight.' 
 
 Dr. Waddilove seconded this amendment. 
 
 Mr. Robertson thought the principle involved was, that the 
 shipmaster should be bound iu all cases to use every expedient for 
 ffjrwarding his cargo, because, if he did not do so, great occasion 
 for dispute might arise. The risk sliould Ijc on the captain if he 
 neglected this duty. 
 
 -Mr. Cam>I-I>II thontiht thr ];i^l jji-oposit inn iiiih'iiabl(>. The 
 master would be bound to give any ;iiniMin( ol' trrighf. h()we\'t'r ex-
 
 INTERNATIONAL LAW OF AFFREIGnT.MENT 001 
 
 P 
 
 orbitant — perhaps more than the cargo itself. The cargo iniglit Ijb 
 damaged, yet, iiotwitlustanding its damaged condition, he would be 
 bound, irrespective of all consideration, to forward it. 
 
 IVfr. Robertson's amendment was put and lost, that of ^fr. 
 Rathbone being carried, and this disposed of Mr. Hudson's. 
 
 The Chairman then read the second paragraph : ' If, on the 
 contrary,' when, in lieu thereof, I proposed : ' If, on the contrary, 
 the forwarding freight is gi'eater than the original freight, and if 
 the unseaworthiness of the original vessel has been occasioned by 
 perils of the sea, and not by any default on the part of the master 
 or owner, then the owner of the cargo shall be liable for the whole 
 of the forwarding freight, but the master of the original vessel 
 shall have no claim for freight.' 
 
 Mr. Hudson seconded this amendment. 
 
 Mr. Rathbone thought that, as the principle was involved in 
 the laws of all countries, if the captain was negligent, and it could 
 be proved he was responsible, the present law would be weakened 
 by inserting these words. 
 
 I intimated that they were considering the views of all coun- 
 tries. In some the law was the very reverse of what it was in 
 England. For that reason I thought they ought to accept my 
 amendment, but it was declared lost. 
 
 Paragraphs 3 and 4 were agreed to. 
 
 Clause III.^ — ' If the owner of the cargo, or any part of it, 
 wish to withdraw it before the termination of the voyage, in spite 
 of the offer of the captain to forward it to its destination, such 
 owner, upon taking delivery at an intermediate port or place, shall 
 be liable for freight for the whole voyage, and shall give good and 
 sufficient bail for any General Average or salvage expenses which 
 may attach to the same.' 
 
 On the third clause being read, I said I thought that, under 
 its provisions, the master would be subject to great hardship. 
 Supposing a ship had 200 tons of coal and fifty tons of iron, say, 
 from Newcastle to New York, and in the course of the voyage was 
 driven into Madeira, the owner of the coals might find there a 
 market for them, whilst the iron was unsaleable. Suppose this to 
 be the case, if the owner of the coals were allowed to withdraw, the
 
 302 MARITIME LEGISLATION. ^ 
 
 iron would be sacrificed, as it would be impossible to find any con- 
 veyance for such a small quantity. I would propose the following : 
 ' If the owner of the cargo, or any part of it, wish to withdraw it, 
 or such part of it, at an intermediate port or place before the 
 termination of the voyage, although the master may be willing to 
 forward it to its destination, such owners shall nevertheless be 
 entitled to take it at such intermediate place or port, but shall be 
 liable for freight for the whole voyage, and shall give good and 
 sufficient bail for any General Average or salvage, or other ex- 
 penses which may attach to the goods so withdrawn, providing 
 always that no owner of a portion of a cargo shall be entitled to 
 withdraw his goods at an intermediate port or place, when such 
 withdrawal would cause any delay or inconvenience in the forward- 
 ing of the remainder of the cargo to the safety of the ship.' 
 
 Mr. Rathbone approved of my amendment, and seconded it. 
 
 Mr. Engels objected to the amendment. 
 
 Mr. Rathbone believed that, according to the English law at 
 present, the captain had full control of the cargo until the port of 
 destination was reached, and that no owner could withdraw at an 
 intermediate port, except under special circumstances. 
 
 Mr. Robertson said that, if the captain allowed one portion of 
 the goods to be removed, it would entail delay on other parties 
 having goods in the vessel. He thought the rights of those other 
 owners should be protected. 
 
 Mr. Whitwill moved the insertion of the words ' or other ' 
 after the word ' salvage,' which the Chairman said was agreed to. 
 
 After I had replied, my amendment was put and lost. 
 
 Clause III. was then agreed to. 
 
 Clause I\'. — ' The entire freight is due upon goods jettisoned 
 or sacrificed fijr the common benefit, and for those sold to raise the 
 necessary fund for defraying expenses incurred for the common 
 benefit.' 
 
 Mr. R.\riii!oM; moved an amendment wliicli he thought Mr. 
 Engels would acccjjt. His view was, that the frt'ight was not due 
 on goods jettisoned or sacrificed for common benefit, but that 
 tlic owner had a claim in General Average for all loss of freight 
 faus<'il by such sacrifice. If the Ncsst-l \v;is sul)S('(jU(Milly lost, there
 
 JNTEUN.VTIONAL LAW OF AFFIU-ZIOIITMENT. £03 
 
 was no General Average on these goods, nor ouglit there to be on 
 tlie freight, l)ecanse the freight had been lost. There were other 
 cases in which the owner ought not to receive the full freig-bt 
 because there was a second General Average, and in that second 
 General Average there were expenses which were thrown on freight 
 which would not be thrown on the freight on goods jettisoned. 
 
 Mk. ExtiKLS objected that the value of the goods jettisoned was 
 brought into the General Average with the freight on tbeni. The 
 value of the goods was calculated with the freight on contribution 
 in General Average, consequently he thought they should pay the 
 freight if goods were jettisoned. 
 
 Mr. Wiht\\ill said Mr. Engels was in error. 
 
 Mr. Rathhone said in English law the freight was deducted 
 from the value of the goods. He thought it would be a pity to 
 alter the law. 
 
 Mr. Hudson seconded the amendment, which was the substitu- 
 tion of the words ' no freight ' for ' the entire freight,' and the 
 addition, after ' common benefit,' of ' but the owner has a claim in 
 General Average for all loss of freight caused by such sacrifice.' 
 
 The amendment was carried. 
 
 Clause V. — ' No freight is due upon goods lost by peril of the 
 sea, nor for those taken by public enemy or by pirates. 
 
 ' Nor upon any goods sold or destroyed in consequence of perils 
 of the sea, in any port or place other than the port of destination.' 
 
 I then remarked that it seemed very questionable whether the 
 master should be deprived of all freight upon goods sold at an 
 intermediate port in consequence of the perils of the sea. In the 
 first place, the damage at the time of such sale might be slight, 
 although with a certainty of rapid deterioration if the goods were 
 re-shipped ; and secondly, masters of ships would have a positiv^e in- 
 centive to re-ship damaged goods, even at risk of damage to goods 
 at the time sound, because by so doing they would secure their 
 freight, which by Art. VII. was due in full on all goods delivered, 
 whether sound or not. On the other hand, that was not a case 
 where any deficiency in freight, as shown by a sale, should be 
 made up by a general contribution. 
 
 Mr. Ratiiijonk thought there was great justice in what I had
 
 304 :\JAiaTIME LEGISLATIOX. 
 
 said, but there was great danger. They must recollect who 
 captains were. Were they going to give the captain power 
 to use his own discretion as to whether he was to carry on 
 the goods or not? He thought, if they gave him that power, on 
 manv occasions that discretion would be abused, especially in the 
 smaller class — such as fish and fruit vessels. The captain might 
 find it convenient if he could sell the goods and break up the 
 voyage and get the distance freight. It would be almost impos- 
 sible for anyone to show that he was not justified in what he did. 
 He thought more power would be put into the hands of captains 
 than their education and position would render safe. 
 
 Mr. Hudson concurred with Mr. Rathbone. When the owner 
 entered into a contract and took the goods on board, he was 
 bound to see they were in a good condition for carriage. If he 
 carried goods liable to defect, he took extra freight for so doing. 
 
 Mr. Rathbone said they had decided that the freight should be 
 at the risk of the shipowner and not of the cargo-owner. The loss 
 of the ship was sufiiciently great. 
 
 Mr. Engels asked why, if one possessed a cargo, and it hap- 
 pened to be so damaged that they lost it, why should they aggravate 
 that loss by paying the freight on the goods which they lost ? 
 
 Dr. Waddilove could not but think there was some injustice 
 in the rule as it stood. It made the owner responsible for the loss 
 caused by causes beyond his control. He thought the clause ought 
 to be modified so that the whole loss might not fall upon those who 
 could not prevent it. 
 
 Mr. Rathbone said that, though the damage was beyond the 
 power of anybody, the loss must fall on somebody. He considered 
 the loss would be much harder if the cargo-owner should pay freight 
 on an utterly useless thing. 
 
 Mj{. Engels believed that, if a captain received perishable goods, 
 he should, if a loss arose, forfeit his freight. The owner of the goods 
 lost all his property, and it could not be fair to make him pay. 
 
 Clause V. was then agreed to. 
 
 Clause VI. — ' If the captain save the goods from shipwreck, 
 or if he recaptiiri's them from the enemy, or from pirates, and if, 
 being ill ri slate to be I i';iiisj»iirlc(l tollicir (lest iii;it ioii. lie delivers
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 305 
 
 them, then he shall be entitled to the whole freight ; if not, he shall 
 be entitled to none.' An additional proviso was added to this on 
 the proposal of Mr. Rathbone, at the instigation of the Leith 
 Chamber of Commerce: ' but without prejudice to his claim for 
 wages and expenses while engaged in recovering the goods.' 
 
 Clause VII. — ' The total freight is due upon delivery of the 
 cargo at the port of destination, although diminished or deteriorated 
 by perils of the sea, if the consignee takes delivery ; and in this 
 case the consignee is bound to take delivery of all consigned to him 
 by the same shipper, and not to choose the sound and reject the 
 damaged. If the consignee will not take delivery the captain, after 
 due authorisation, may sell such goods to pay his freight, and for 
 any deficiency has no recourse against the consignee or shipper 
 except there be an express stipulation to the contrary.' 
 
 I proposed the clause in a different form : ' The total freight is 
 due upon delivery of the cargo at the port of destination, although 
 diminished or deteriorated by perils of the sea, if the consignee take 
 delivery of all consigned to him by the same bill of lading or (when 
 the goods are in bulk) by the same shipper. If the consignee will 
 not take delivery, the master may, subject to the laws in force at 
 the port of destination, sell such goods to pay his freight, but for 
 any deficiency has no recourse against the consignee or shipper as 
 such, retaining only such claim as he may have upon the charterer 
 under the terms of the charter-party.' 
 
 This amendment was not seconded. 
 
 Mr. Rathbone proposed another amendment. He supposed 
 the case of a man sending out to Patagonia, Valparaiso, or else- 
 where, a cargo of coals. On that cargo the freight was very often 
 by far the larger proportion of the value. It might so happen 
 that the value of the coals in Valparaiso fell below the value of the 
 freight, and, therefore, they make the shipowner a speculator with 
 the cargo-owner. He did not think it a safe principle to go upon. 
 Were this the law, he should, were he a shipowner, make an ex- 
 press stipulation in each case. He proposed to add to the clause: 
 ' But in no case shall the captain be entitled to receive on a cargo 
 deteriorated during the voyage a larger amount for freight than 
 
 X
 
 306 MARITIME LEGISLATION. 
 
 he could have received if the whole cargo had been delivered in the 
 same state in which it was shipped.' 
 
 Mr. Whitwill seconded this amendment. 
 
 Mr. Exgels thought the captain should take his pi-ecaution 
 beforehand. He was responsible for what took place. 
 
 Mr. Powell supposed an accident taking place, and part of 
 the caro-o, say grain, becoming damaged, and another part heated, 
 and also damaged by sea-water. When that was delivered, freight 
 was paid on the quantity discharged, and was, consequently, from 
 increased bulk, heavier than if the grain had been delivered sound. 
 He thought it should be enacted that no captain should be entitled 
 to receive more freight on a damaged cargo than the amount would 
 be if delivered in a sound condition. The case often happened, 
 and was one of great practical hardship. 
 
 Mr. IIathbone admitted that the hardship was great, but 
 thought it rather one of circumstances than law. It was difficult 
 to find out what the freight was. He presumed the captain had 
 no claim whatever for the increase of weight in the grain, and the 
 onlv case in which he would get such increase would be where it 
 could not be shown how much the grain had increased. 
 
 The amendment was carried, and the following alteration also 
 made : the omission of the words ' shipper and not ' to ' damaged ' 
 inclusive ; and the substitution of ' bill of lading, or Avhen the 
 goods are in bulk, by the same ship.' 
 
 Clause VIII. — ' The freight jjaid in advance is always liable 
 to be refunded in all cases involving non-payment of freight, 
 except where it is stipulated to the contrary.' In place of the 
 first four words, the following, ' advance on account of freight,' 
 was adopted. 
 
 An additional Clause IX. was inserted, viz. : 'The owner of the 
 shi|i sli.'iU liave the absolute lii'u on the cargo for tlie freight and 
 (lead fn-ight.' 
 
 Tlai'sk IX. of the ' ])i'ojet de loi," but now Clause X., 'Tliecon- 
 Iril.ntioii of llic frriglit to General Average shall be regulated 
 accoiding to th<' first ])iii-iigra|)h of Art. X. of the ^'ork rules,' was 
 ailoptfd. 
 
 'I''if rollowiiiL"" auicndrd diiil't \\;is thiMi rcatl : -
 
 INTERNATIONAL LAW OF AFFREIGIITMEXT. 307 
 
 I. To establish, as a general rule, that freight should not be 
 due until the voyage bo accomplished, i.e. until delivery of the 
 cargo at the port of destination, unless where a special agreement 
 is made to the contrary. 
 
 II. If in the course of the voyage the ship, in consequence of 
 the perils of the sea, and not through any default on the part of 
 the captain or owner, has become unseaworthy, and not in a state 
 to accomplish lier voyage, the captain shall act as the agent for all 
 concerned, and, if prudent and practicable, shall forward the cargo 
 to its destination by other vessel or vessels ; and in this case he 
 shall, upon delivery, have a claim for the whole of the freight due 
 under the original charter-party (or bill of lading), although, in 
 consequence of the cargo having been forwarded, the goods have 
 been transported at a lower freight. But the captain of the original 
 vessel is liable for the forwarding freight. 
 
 If, on the contrary, tlie forwarding freight is equal to or greater 
 than the original freight, the captain can claim no freight, but the 
 owner of tlie cargo will be liable for the whole of the forwarding 
 freight. 
 
 If the captain does not forward the cargo, he has not any claim 
 for freight. 
 
 The system of irro rata freight is entirely abolished. 
 
 III. If the owner of the cargo, or any part of it, wish to with- 
 draw it before the termination of the voyage, in spite of the offer 
 of the captain to forward it to its destination, such owner, upon 
 taking delivery at an intermediate port or place, shall be liable for 
 freight for the whole voyage, and shall give good and sufficient bail 
 for any General Average, salvage, or other expenses which may 
 attach to the same. 
 
 IV. No freight is due upon goods jettisoned or sacrificed for 
 the common benefit, and for those sold to raise the necessary funds 
 for defraying expenses incurred for the common benefit ; but the 
 c^vner has a claim on General Average for all loss of freight caused 
 by such sacrifice. 
 
 V. No freight is due upon goods losb by perils of tlu sea, nor 
 for those taken by public enemy or by pirates. 
 
 Nor upon any goods sold or dfst roved in consequence of perils 
 
 i 2
 
 308 MARITIME LEGISLATION. 
 
 of the sea, in any port or place other than the port of destina- 
 tion. 
 
 VI. If the captain saves the goods from shipwreck, or if he 
 recapture them from the enemy or from pirates, and if, being in 
 a state to be transported to their destination, he delivers them, 
 then he shall be entitled to the whole freight ; if not, he shall be 
 entitled to none, but without prejudice to his claim for wages and 
 expenses while engaged in recovering the goods. 
 
 VII. The total freight is due upon delivery of the cargo at the 
 port of destination, although diminished or deteriorated by perils 
 of the sea, if the consignee takes delivery, and in this case the 
 consignee is bound to take delivery of all consigned to him by 
 the same bill of lading, or, when goods are in bulk, by the same 
 ship. If the consignee will not take delivery, the captain, after 
 due authorisation, may sell such goods to pay his freight, and 
 for any deficiency has no recourse against the consignee or shipper, 
 except there be an express stipulation to the contrary. But in 
 no case shall the captain be entitled to receive on a cargo, deterio- 
 rated during the voyage, a larger amount of freight than he 
 would have received if the cargo had been delivered in the same 
 state in which it was shipped. 
 
 VIII. Advance on account of freight is always liable to be re- 
 funded in all cases involving non-payment of freight, except where 
 it is stipulated to the contrary. 
 
 IX. The owner shall have an absolute lien on the cargo for the 
 freight and dead freight. 
 
 X. The contribution of freight to General Average shall be re- 
 gulated according to the first paragraph of Section X. of the York 
 rules.* 
 
 Thr; CiiAiiniAN, having after taken the sense of the meeting, 
 declared the rules to l)e formally sanctioned, and he requested the 
 lioriorary secretary to take the necessary steps to get them acted 
 
 ' Vide p. 207.
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 309 
 
 I have not been able to find traces of any steps which 
 the executive council of the National Association for the 
 Promotion of Social Science took, after the results of the 
 Sheffield Congress had been brought under their notice, in 
 order to prevail upon the Board of Trade to take an in- 
 terest in promoting the practical use of these deliberations, 
 or whether they met with any success. It appears, in- 
 deed, just as with the sul)ject of International General 
 Average, to have been left to the Association for the 
 Reform and Codification of the Law of Nations to resume, 
 in 1879, the consideration of the international law of 
 Affreightment at the very stage it had been left by the 
 Sheffield Congress in 1865. 
 
 It should, however, be mentioned that as far back as 
 July 1871, soon after the opening of the Suez Canal, a 
 meeting of merchants and others in the trade to the East 
 took place at the London Tavern for the purpose of trying 
 to agree upon an ' Eastern Trade Bill of Lading.' 
 
 The committee then formed included not only repre- 
 sentatives of the largest houses engaged in that trade, but 
 the principal shipowners as w^ell as delegates of the 
 Salvage Association. 
 
 By the terms of the document then agreed upon after 
 much consideration, steamers were allowed to call at in- 
 termediate ports for coaling and other purposes, without 
 such calling to be considered a deviation. They M-ere also 
 permitted to sail with or without pilots, and to tow and 
 assist vessels in distress ; and the owner was exempted 
 from loss arising from any act, neglect, or default whatso- 
 ever of pilots, master, or crew in the navigation of the 
 ship, but not for any act connected with the stowage or 
 other dealing with the cargo not arising from sea peril. 
 
 So long; as the traffic to tlie East was confined to the 
 few and well-regulated lines of steamers, this Ijill of lading
 
 310 MAEITLME LEGISLATION. 
 
 worked satisfactorily, but the immense extension of the 
 mercantile navy Avhicli soon afterwards took place inau- 
 gurated an altered state of circumstances. Shippers of 
 merchandise hesitated to concede to the general body of 
 shipowners, their masters and crews, the unprecedented 
 concession of the ' negligence clause,' which they had been 
 willing to concede to the lines of steamers referred to 
 above. 
 
 A general confusion then arose ; the bill of lading 
 which originally was only intended for the few lines which 
 traded to the East and China, was adopted by other 
 steamship owners, not only for those routes but also for 
 Australia and New Zealand; and, as if this was not enough 
 innovation, almost every shi]30wner issued a separate bill 
 of lading for his steamers, adopting therein any conditions 
 which might appear useful to him, quite irrespective of 
 the interests otherwise affected by the document. 
 
 Such was the demand for ships and the influence of 
 the shipowners, that shippers of merchandise had very 
 iVecjuently to suljmit to conditions in charter-parties and 
 bills of lading which previously had never been thought 
 of, and which were neither equitable nor reasonable be- 
 tween the contracting parties. 
 
 It therefore became an absolute necessity to consider 
 by what means the shij^owner and the merchant could be 
 brought to an agreement on these matters. The subject 
 ol" a gciK'ial Law of Affreightment and a uniform ]5ill of 
 I.;i(liii<j- bec-ame henceforward merc^ed together. Hence- 
 forward, whether the Law of Affreightment or the Bill of 
 Lading is mentioned, it must be assumed that the larger 
 subject combined iji both expressions is under consider- 
 ation. 
 
 ']() i-csniiH- llic Iiislorv of llic discussion. 
 
 At tlic sc\('utli conrcrciicc of llic Association on
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 811 
 
 August 14, 1879, in the Guildhall of the city of London, Sir 
 Travers Twiss in the chair, the honorary general secretary, 
 Mr. Jencken, read the following paper, prepared by Mr. H. 
 lleinhold, of Calcutta : — 
 
 Eight years ago a committee of merchants trading with the 
 East assembled in London to consider and amend the conditions of 
 bills of lading for steamships ])assing through the Suez Canal, and 
 after nearly twelve months' deliberation their report on the subject, 
 dated June 18, 1872, unfortunately left the matter in a half- 
 finished state. The gentlemen who undertook the task are well 
 known in the Eastern trade, and their experience and high 
 standing are a guarantee, not only that the matter was thoroughly 
 investigated in all its bearings, but also that the various interests 
 concerned received full consideration at their hands. Although 
 the new route via Suez was then only beginning to show signs of 
 the great revolution pending in all matters connected with Eastern 
 commerce, it is now, and has been since its construction, absorbing 
 the greater part of the carrying trade from the East to Europe. 
 The attention bestowed at that time upon the subject under dis- 
 cussion proves sufficiently that the members of the committee 
 were fully alive to the altei-ations required to be made in the form 
 of bill of lading generally in use. , 
 
 If we admit that shipowners and ship-agents are entitled to 
 claim special exemptions from the ordinary rules and are to have 
 the benefit of exceptional clauses, the merchants, on their part, 
 have equally strong grounds to jealously prevent exceptions being 
 made to override the ordinary legal enactments for the protection 
 of goods entrusted to the care of owners and agents as carriers. 
 
 For more easy reference I annex a copy of the report issued 
 by the committee referred to, but regret that no copy of the bill 
 of lading as originally adopted for goods outwards is in my pos- 
 session ; however, those more nearly interested will no doubt have 
 guarded their own interests sufficiently at the time that document 
 was finally determined upon and adopted by common consent, as 
 stated in the report. 
 
 Kegarding the form and conditions of bills of lading for goods
 
 312 MARITIME LEGISLATION. 
 
 inwards, i.e. shipments made from the East to Europe, no such 
 unanimity prevailed, and the various forms of Lills of lading now 
 used by different steamship proprietors differ so much with regard 
 to exemptions claimed from acknowledged responsibilities as to 
 demand attention in this respect. 
 
 As Calcutta merchants, my firm has on more than one occasion 
 experienced the hardship of certain clauses to which I draw at- 
 tention with the object of stimulating a discussion. I shall in the 
 first instance point out some glaring inconsistencies between the 
 main part of the bill of lading and the exemption clauses, which 
 are in contradiction to the provisions enacted for the protection of 
 goods ; and have no doubt the experience gained by merchants 
 during the six years that have elapsed since the committee closed 
 its labours will now enable them and shipowners to arrive at a more 
 equitable and satisfactory understanding. 
 
 1 . The old form of bill of lading generally commences : ' Shipped 
 
 in good order and condition by .' There are now some forms 
 
 in use which add : ' or received to be shipped,' an alteration caused, 
 as I believe, by the altered local arrangements in Calcutta since 
 the introduction of jetties and wharves under Port Commissioners 
 appointed by the Local Government. Of this evidently few people 
 in London are aware, as I know of recent arbitrations where cap- 
 tains had signed such bills of lading, when they had, or I assume 
 that they must have had, the goods fully under their control, but, 
 for the convenience of the ship in the matter of stowing the cargo, 
 the goods were actually taken into the hold a couple of days later. 
 Though the goods were actually thus duly delivered, still it has 
 been interpreted and looked upon as akin to a fraud, and mer- 
 chants who had in reality nothing to do with the signing of the 
 documents have been mulcted in allowances, whilst the captain, 
 the responsible master who signed the documents, has been left 
 undisturbed. 
 
 2. Furtiier, when in the beginning of a bill of lading it is 
 stated that the goods were shipped and received ' in good order 
 ;iii(l condition,' some l>il!.s ol" lading have adopted an exemption 
 clause which almost lolallv nullifies the aljove recital, viz. : 'the
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 813 
 
 ship is not liable for iusufficient packing or reasonable wear and 
 tear of packages.' 
 
 3. In the main part of the bill of lading it is said : ' being 
 marked and numbered as per margin,' whilst an exemption clause 
 states that the ship is not liable ' for inaccuracies, obliterations or 
 absence of marks, numbers, address, &c. &c.' On the boat-notes 
 of Calcutta shippers, which accompany the goods with the shipping 
 order and custom-house pass on board, it is generally, we may say 
 universally, stated : ' all packages in bad order, slack bags, or in- 
 sufficiently marked, &c. &c., to be returned,' by the receiving 
 officer, in order to get from the master a clean bill of lading. 
 
 Surely, it is the plain duty of the ship or its receiving officer 
 to see that the goods tendered under such conditions with the 
 shipping order be in good condition, properly marked, and num- 
 bered ; but on arrival of the vessel cases frequently occur (causing 
 annoyance and loss to consignees) which must have arisen from 
 carelessness, either on the part of the receiving officer, or on the 
 part of the dock employes, by whom delivery is made haphazard. 
 
 4. Not a word is said regarding bad stowage, but every mer- 
 chant is more or less aware that to hurried loading (in order to 
 give quick despatch and save port charges) a great deal of leakage 
 and breakage is due, from which exemption is likewise claimed. 
 
 5. A further case in which a ship is not liable according to 
 these exemption clauses is ' loss or damage by dust from coaling 
 on the voyage.' 
 
 This is a rather ill-defined, but very expansive, clause under 
 certain circumstances, as may be more clearly judged of by a case 
 in point. A steamer brought home a mixed cargo, comprising, 
 amongst other goods, white rice or table rice, as dead weight, in 
 the lower part of the ship, of which, on arrival, it was found that a 
 portion was mixed with coal dust (small granular parts of coal) 
 and, as a matter of course, subject to a heavy allowance in price 
 for inferior value. As usual, shipowners and agents disclaimed all 
 liability and pointed to the above-cited clause of the bill of lading 
 as protecting them, which clause, according to their account, had 
 been adopted by the general committee of merchants and ship- 
 owners.
 
 aU MARITIME LECJISLATIOX. 
 
 Anybody reading the committee's report will find that no such 
 bill of lading was adopted, and, even if it had been, it would not 
 free the ship from its obligation to protect the cargo, received in 
 good condition, properly and efficiently, which cargo those inter- 
 ested in the ship bound themselves to deliver in like good order 
 and condition. Thus far goes the law ; the rest is the shipowners' 
 own making and interj^retation. 
 
 6. In some bills of lading it is claimed that, the vessel being 
 ready to unload immediately on arrival, if the owners or consignees 
 are not ready to receive the goods, the same will be landed or put 
 into lighters at the expense of the consignees. 
 
 The ordinary custom in London is seventy-two hours' notice to 
 be given that the ship is ready to discharge at a given date and 
 place. Steamship owners have curtailed this to twenty-four hours, 
 and law and equity demand fair and reasonable time to be given to 
 the consignee, which, according to place and circumstances, may 
 proportionately vary; but according to clauses now inserted in 
 some bills of lading the ship may proceed at once to discharge 
 goods, leaving consignees to find them afterwards. The smartness 
 exercised in loading or discharging huge cargoes of merchandise is 
 often praised, but at whose cost this is being carried out is seldom 
 examined into. 
 
 7. I cannot fully enter into all details in this paper, but I must 
 not omit to notice the following exemption clause : ' The ship shall 
 not be liable for incorrect delivery, unless each package shall have 
 been distinctly marked by shippers, before shipment, with the name 
 of port of destination.' 
 
 By referring to what we have cited under paragraph 3, and 
 more so by reading the bill of lading itself from beginning to end, 
 one cannot but feel the bitter irony of those who, after all, stand 
 uiidt r the; law referring to carriers. 
 
 I'nr the present 1 tliink I have said enough to make merchants 
 and others more careful in looking at these documents and to 
 bestow some attention upon this important subject. I think it 
 dcsirabli' tli;it tlic ((ucstion should ln' ])l;iccd licfore (lie Chambers 
 of r/oniincrce, or any other comniercial associations, of the various 
 J oris in tlic l'];ist, for an expression of opinion. Local arrange-
 
 INTERNATIONA!. LAW OF AFFREIGHTMENT. 315 
 
 ments and the diversity in the nature of the various articles of 
 merchandise shipped from different places, demand in many cases 
 special care and conditions, and in my opinion it would be unfair 
 to exclude such considerations from a discussion as to the adoption 
 of a definite form of document which might afterwards obtain or 
 seem to carry weight as settled by special authority. 
 
 I take the liberty of suggesting that the London Committee 
 might reassemble to receive and discuss suggestions coming from 
 abroad, and, with their local experience, come to a more satisfactory 
 conclusion as to the general terms of such a document. Moreover, 
 London has the advantage of having representatives of nearly all 
 Eastern firms, as well as the greatest shipping interest, concentrated 
 in its limits, and it affords the best information to be obtained from 
 landing and shipping agents, insurance offices, and others interested 
 in the discussion. 
 
 The report of the Committee of Merchants was as follows : — 
 
 The Committee entered upon its duties in pursuance of the 
 following resolution, passed at a meeting of merchants and others 
 interested in the trade with the East, which Avas held at the London 
 Tavern on July 11, 1871:— 
 
 ' That a committee of merchants be appointed to consider all 
 the special stipulations that have been introduced into bills of lading 
 for steam vessels and to confer thereon with the representatives of 
 the steamship owners and underwriters with a view of drawing up 
 a general form of bill of lading which shall be equitable in its con- 
 ditions to all parties, and to arrange such a method of settling the 
 freight as may remedy existing irregularities.' 
 
 Power was also given to the committee to add to its numbers, 
 and it was finally constituted as follows : — Mr. James Macandrew 
 (Messrs. Matheson and Co.), chairman, Mr. G. Arbutlmot (Messrs. 
 Arbuthnot, Latham and Co.), Mr. W. Broughall (Messrs. Broughall 
 and Co.), Mr. W. H. Crake (Messrs. Crawford, Colvin and Co.), Mr. 
 Lancelot W. Dent (Messrs. Dent, Palmer and Co.), Mr. Horace 
 Farquhar (Messrs. Forbes, Forbes and Co.), Mr. John Fleming 
 (Messrs. Smith, Fleming and Co.), Mr. E. Halton (]\ressrs. T. A. 
 Gibb and Co.), Mr. F. W. Heilgers (]\Iessrs. Wattenbach, Heilgers 
 and Co.). IMr. John E. Kalli Olessrs. Ralli r>intliers). Mr. George
 
 81G MARITIME LEGISLATION. 
 
 Ross (Messrs. James Wyllie and Co.), Mr. S. L. Schuster (Messrs. 
 Schuster, Son and Co.). 
 
 The committee has likewise had the benefit of the valuable 
 advice and assistance of Mr. J. A. W. Harper, Secretary of Lloyd's 
 Salvao-e Association, who had on behalf of the Association devoted 
 much attention to the conditions of bills of lading. 
 
 As convincing proof of the necessity of their inquiries and of 
 the pressing nature of the evils to be remedied in readjusting the 
 freight contract, the committee need only refer to a sheet, published 
 by Lloyd's Salvage Association, and very generally circulated among 
 merchants, in which the exemptions of the ship from liability in 
 various contingencies are classified in a tabular form. There was 
 little difficulty in determining which of these conditions most ur- 
 gently called for abolition or alteration, and the committee then 
 lost no time in seeking the co-operation of steamship owners, in 
 arriving at a common understanding upon the subject. A meeting 
 of the latter body was called in London, and a committee, of which 
 Mr. C. M. Norwood, M.P., was chairman, was appointed to concert 
 terms with the merchants. 
 
 The two committees addressed themselves in the first instance 
 to the examination of the bill of lading outwards, and after pro- 
 longed discussion and a series of compromises on both sides the 
 ' Eastern Trade Bill of Lading Outwards ' was agreed upon and 
 published in three forms, slightly varied to suit different voyages : — 
 
 No. 1. — For an ordinary voyage to the East, direct or trading 
 at intermediate ports. 
 
 No. 2. — For a voyage to India, trading at Colombo, Madras, 
 or other open roadsteads on the Malabar or Coromandel coasts. 
 
 No. 3. — For a voyage involving transhipment, the steamer 
 not proceeding to the port for which she accepts cargo, such as 
 Kangoon, Batavia, or Japan. 
 
 This agreement was promptly announced to merchants in a 
 ciicular, issued by the chairman of the committee, dated January 
 20, 1872, appended to which were copies of the revised forms of 
 bills of lading. 'J'he new form came into immediate use, and it 
 affords the committee much gratification to testify that it has been 
 very generally accepted, not only iu London, but in Liverpool and
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 317 
 
 Glasgow also, and has proved a useful and successful document. 
 One exception to its universal use is the Liverpool line of steamers 
 to the Straits and China known as Holt's line. The committee in 
 their circular of January 20 recommended that, as far as practic- 
 able, shippers should require the Eastern trade bill of lading to be 
 used by any steam vessel in which they engaged to ship goods vid 
 the Suez Canal. Had this recommendation been more generally 
 acted upon, there is no doubt that the managers of Holt's line 
 would have ere now adopted the new form ; but, if shippers of 
 goods put it in their power, by continued support of their steamers, 
 to decline compliance with the agreement accepted by all other 
 private steamship-owners in the trade, the efforts of the committee 
 to benefit merchants by the introduction of an improved system are 
 so far frustrated. The committee believe that the results of the 
 agreement have been beneficial alike to shipowner and merchant, 
 and that the advantages of uniformity of system have not been too 
 dearly purchased by the compromises acceded to. If shippers 
 entertain the same view, it rests w^ith themselves alone to necessi- 
 tate compliance by declining to ship in any line of steamers where 
 the Eastern trade bill of lading is not recognised. 
 
 With the two great companies controlling the Overland Route, 
 the Peninsular and Oriental Steam Navigation Company and the 
 Messageries Maritimes of France, no negotiations have yet been 
 entered into. There are many stipulations in their respective bills 
 of lading which seem to the committee to be very prejudicial to 
 the interests of merchants ; but it must be conceded on the other 
 hand that their mail contracts and the circumstance of their beinor 
 essentially passenger lines impose special obligations upon them 
 and render stringent conditions more necessary than in the case of 
 other steamers. At the same time, when the vessels pass through 
 the Suez Canal, as is now very generally done by the French and 
 occasionally by the English company, the committee see no good 
 reason why a slight modification of the Eastern trade bill of lading 
 should not meet all the exigencies of the case ; and it rests with 
 shippers to take measures for bringing about an alteration in this 
 respect. 
 
 Copies of the three forms of the Eastern trade bill of lading
 
 318 MARITIME LEGISLATION. 
 
 outwards, attested by the chairmen of the two committees, have 
 been deposited in the custody of the Committee of Lloyd's, to serve 
 for purposes of reference as the standard text of the bill of lading 
 agreed upon. 
 
 The committee regret that, in the case of the bill of lading 
 inwards, they are unable to report an equally satisfactory result 
 of their labours. It was agreed between the two committees that 
 the bill of lading outwards should be substantially followed, with 
 such verbal altei-ations as were required by the change of voyage ; 
 but that special clauses applicable to the port of London should 
 be introduced respecting the delivery of cargo and payment of 
 freight. The system of discharging ships at Liverpool and else- 
 where is very diffei'ent and might require differently worded 
 clauses, wh ich the trade of the various ports interested would have 
 to adjust. 
 
 It was soon found that on these clauses the two committees 
 were essentially at variance. As respects the delivery of cargo, 
 the difference of opinion was not so wide as to preclude the hope 
 of an arrangement, the merchants mereh' desiring to be protected 
 against a sui*prise by which their goods would be warehoused by 
 the agents for the ship, before they knew or had the means of 
 knowing of her arrival. The following was the clause proposed by 
 the committee : — 
 
 ' One clear working day after the day on which the ship reports 
 at the custom-house and is docked is to be allowed for applications 
 for dt'livpry ; and if thereafter the goods are not removed without 
 delay hj the consignee, the master or agent is to be at liberty to 
 land and warehouse the same, or, if necessary, to discharge into 
 hired lighters at the risk and expense of the owners of the goods.' 
 The clause liiiully i)r()i)osed by the shipowners' committee was 
 as follows : — 
 
 ' Twenty-four hours (Sundays and holidays excepted) after the 
 ship reports at the ciistf»iii-liouse and is docked are to be allowed 
 for a])plications for drliNcry ; and if tlicrcafter the goods are not 
 n-inoved by tin; consignee immediately lliey come to hand in dis- 
 charging tin- sliip. Ilie master or agent is to be at liherty to land
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 319 
 
 and warehouse the same or, if necessary, to discharge into hired 
 ligliters at the risk and expense of the owners of the goods.' 
 
 As it is not customary or practicable in London to give con- 
 signees notice of tlie ship's arrival, except by publication of her 
 report in the bill of entry the morning after it is made, the clause 
 adopted by your committee seems decidedly the more reasonable of 
 the two, especially as the hour of the ship's report is a point on which 
 the consignee of goods cannot possess any evidence. Moreover, 
 the bulk of the warehousing entries would certainly be passed 
 within twenty-four hours, and the steamer's discharge be thus very 
 rai'ely interrupted, while, if she landed the whole of her cargo on 
 the dock quay, as is most usually done, no interruption at all could 
 take place. 
 
 On the more difficult question as to the mode of paying freight 
 some explanations are necessary. When the terms of the bills of 
 lading now used run, ' freight payable in London,' 'freight payable 
 on delivery,' or even ' freight payable as customary,' the shipowners 
 contend that, according to the usage established by themselves 
 since the introduction of steam-vessels into the trade with the 
 East, they are empowered to detain the goods on board or in the 
 dock or a warehouse of their own selection, until the freight is paid 
 in advance of delivery, or, which is practically the same thing-, 
 simultaneously with delivery. It will not be forgotten that this is 
 precisely the grievance of which merchants have for years past 
 complained, and to remedy which was one of their principal objects 
 in organising a committee of their number. The shipowners' 
 committee continue to maintain the above position, and their 
 chief arguments for so o ing may be thus expressed : — 
 
 I. That payment in adv^ance of delivery is now the established 
 usage of the trade. 
 
 II. That it is necessary for their protection against the insolvent 
 or fraudulent consignee of cargo. 
 
 III. That it is unreasonable to expect them to follow goods to 
 the wharf or warehouse appointed by the consignee, either for the 
 purpose of collecting the freight upon them or to ascertain the 
 correctness of delivery. 
 
 IV. That woods in transit to the wliar f or at the wh:u-f mav be
 
 320 MARITIME LEGISLATION. 
 
 plundered or damaged by the servants or agents of the consignee, 
 for which, in the absence of distinct proof, the ship would be held 
 
 liable. 
 
 Y. That a laro-e proportion of the freight earned is expended 
 in advance on coals, canal dues, and other charges peculiar to 
 steamers, to which, therefore, immediate returns from their earn- 
 ings are essentially necessary. 
 
 VI. That to defer payment of the inward freight for thirty days 
 would render it impossible for steamship owners to carry on their 
 business, owing to the large increase of capital which it would 
 call for. 
 
 To these arguments the merchants reply : — 
 
 I. That the present usage as to payment is of quite recent 
 introduction, deriving any validity it has from the terms of bills of 
 lading drawn up by shipowners themselves, and that, so far from 
 being established by common consent, it has been constantly 
 objected to by consignees of goods. 
 
 II. That the shipowner has a perfect protection for his freight 
 in what is known as the dock or wharf stop, with which there is 
 no intention of interfering, and by which the warehouse-keeper 
 eno-aofes not to part with the goods to anyone until he receives a 
 release from the shipowner. To meet the rare case of insolvent or 
 fraudulent wharfingers, the committee were quite willing to con- 
 cede that the shipowner might object to the goods being delivered 
 into the custody of any such until his freight was paid. 
 
 III. That, to constitute proper delivery, the consignee must 
 have the opportunity of ascertaining that his goods are according 
 to bill of lading, while the existing system does not afford this 
 opportunity, either on board ship or on the dock quay. The ship- 
 owner, therefore, cannot be absolved from following the goods to 
 their final destination, as, until they are there examined, weighed 
 and measured, it is quite out of his power to render a freight 
 account. 
 
 1\'. That tliis objection merely calls for an improved and less 
 hurried inetliod of taking the <lelivery account as between the dock 
 company, wlio are the agt-nts of the ship, and the wliarfingers, wlio 
 are the atre.nt.s oi' the merchants, and lliat th(> merchants' com-
 
 IN'lM'.ItXATIONAL LAW OF AFFJ.'KIGIITMI'AT. ;52L 
 
 mittee would j^ludly co-operate in tin; establishment of such an 
 improved system. Cases of ])lunder could then be traced, without 
 difficulty, lit fill' jiartics guilty of iliem. 
 
 V. & VI. That it is no part of the merchant's functions to 
 provide capital for carrying on the shipowner's business, and that 
 in London there can be no difficulty whatever in procuring money 
 on so excellent a security as the assignment of a steamer's freight 
 payable in thirty days. 
 
 The merchants' committee have likewise to point out that, 
 as a matter of fact, the larger portion of a steamer's freight is ■ 
 voluntarily paid before her discharge, in order that the merchant 
 may obtain possession of the freight release, especially in the 
 common case of goods sold to arrive. They object, however, to 
 being compelled to pay upon the shipowner's estimate of what the 
 freight may eventually amount to, and before he has completed his 
 share of the contract by the delivery of the goods. The term of 
 thirty days has been fixed as the lowest average period in wdiich 
 the landing account of an ordinary cargo can be looked for, there 
 being no desire on the part of the committee to delay payment 
 longer than may be requisite to ascertain the precise amount of 
 freight and the claims, if an^^ against the steamer for short delivery, 
 ship damage or other default. 
 
 Upon this divergence of views the negotiation between the 
 two committees has been broken off. The only concession proposed 
 by the shipowners' committee has been that delivery should be 
 made on prepayment of four-fifths of the estimated freight in- 
 stead of the whole. This suggestion, however, seemed to your 
 committee to be just as objectionable in principle and inconvenient 
 in practice as the existing system, and it was not seriously discussed. 
 They subjoin the clause as they have drafted it : — 
 
 ' Freight for the said goods at and after the rate of per 
 
 ton of delivered is to be paid subsequent to the landing 
 
 thereof by cash in London not later than thirty days after the ship's 
 reporting at the Custom House, or upon any earlier day on which 
 a freight release may be required and received by the consignee ; ' 
 While the wording proposed by the shijiowners is as follows: — 
 ' Freight for the said goods at and after the raie of per
 
 322 MARITIME LEGJSLA IION, 
 
 ton, is to be paid by cash in London, when the ship is ready to 
 discharge.' 
 
 The shipowners' committee likewise sought to re-introduco 
 into the bill of lading inwards the exemption for damage ))y 
 vermin which by mutual consent had been expunged from the 
 bill of lading outwards. They further proposed for your commit- 
 tee's adoption the following clause : — 
 
 ' The bill of lading, duly indorsed, is to be delivered to the 
 accent on demand after arrival, in exchange for the master's copy 
 and an order for the delivery of the goods.' 
 
 On this latter it will be sufficient to observe that your com- 
 mittee obtained a legal opinion, which was to the effect that the 
 shipowner had no right to require the surrender of an indorsed or 
 cancelled bill of lading, until he had completed delivery of the 
 goods comprised in it. 
 
 The committee, having devoted much care to the drafting of 
 the bill of lading herewith, styled the ' Eastern Trade Bill of 
 Lading Inwards, No. 4,' recommend it for adoption by merchants 
 trading to the East, and would urge them to use their best efforts, 
 through their correspondents abroad, to have it recognised and 
 brought into use at the ports of shipment, declining, so far 
 as may prove practicable, to allow their goods to be shipped by 
 steamers the owners of which continue to enforce the use of the 
 old forms. 
 
 In the committee's circular of January 20 it was recommended 
 that, to ensure the benefit of a complete protection to sea risks, the 
 policies taken out on voyages by steamer, via the Suez Canal, 
 should cover the merchandise 'in terms of the Eastern Trade Bill 
 of Lading.' AVhen this recommendation was brought before under- 
 writers, the clause suggested was at once objected to as imposing 
 upon them new and undefined liabilities. A meeting was held at 
 Lloyd's on February 2 1 , which resulted in the appointment of a 
 committee, representing both the insurance companies and private 
 underwriters, to consider the question further, and, if jiossible, to 
 come to an agreement respecting it. With this committee the 
 siibjfci has been very fully considered and discussed by your com- 
 niitt<'f', Tlir- inteutinn nf vniir romniittpo in tluMV original rocom-
 
 INTI:KNATI(>XA1. law of AFFREIGIITMKXT. 323 
 
 mendation was sufficiently evident from their expressing their 
 object to be tlie more complete protection of the sea risks to which 
 the bill of lading related ; but they are quite willing to admit that 
 the language proposed for the clause was too wide and vague in its 
 terms, and might have been interpreted as involving underwriters 
 in some of the lialjilities from which shipowners had by the revised 
 bill of lading been specially exempted. In order to draft a clause 
 more exact in its wording, the first matter to be determined was 
 the precise meaning attached, both by the assurers and the assured, 
 to the risks covered by a policy on goods which had been shipped 
 under the Eastern Trade Bill of Lading. On this point the Com- 
 mittee are happy to state that they have arrived at a satisfactory 
 understanding with the underwriters' committee, of which the 
 following is an abstract :■ — 
 
 ' The underwriters' risk on the voyage named, calling at the 
 intermediate ports named, is to include — 
 
 ' Coaling at other intermediate ports not named. 
 
 ' Taking in and discharging cargo while so coaling. 
 
 ' Sailing with or without pilots. 
 
 ' Towing and assisting vessels in all situations of distress. 
 
 ' Loss or damage arising from the machinery or boilers. 
 
 ' Dangers and accidents arising from the navigation of the Suez 
 Canal. 
 
 ' Any act, neglect, or default whatsoever of pilots, master, or 
 crew in the management or navigation of the ship, provided the 
 expression, ' management of the ship,' shall not be held to include 
 any act connected with the stowage or other dealing with the 
 cargo of the ship not arising out of a sea peril — - 
 
 ' In addition to all risks comprehended and provided for in the 
 body of this policy. 
 
 ' The underwriter is not to be liable for acts or default of the 
 shipper unconnected with sea perils, such as insufficient packing, 
 incorrect marking, improper description, absence of declaration for 
 inflammable or dangerous goods, or insufficient declaration of value 
 for specie and valuables. 
 
 ' The underwriter, however, is to be liable as heretofore for tlie 
 consequences of sea damage or sea i)erils of any kind, such as
 
 324 MAIUTIME LlXUSl.ATION. 
 
 leakage, breakage, sweat, rust, decay, wlien traceable to that 
 origin, but not otherwise. Damage by coal-dust, when not mixed 
 up with damage by sea-water, is to be borne by the merchant. 
 
 ' In case of the goods being placed in quarantine depot afloat or 
 ashore previous to the final delivery to the consignee, the under- 
 writers' risk will continue until such final delivery, and will cover 
 risk of boats to and from such depot. 
 
 ' In case of blockade the underwriters are understood to cover 
 the voyage to the port of discharge selected by the captain as fully 
 and eflFectually as to the port of discharge named in the policy, 
 their liability ending with the landing of the goods at the former 
 destination. 
 
 ' Should the voyage be extended beyond the destination named 
 in the policy, as when the goods cannot be found or from stress of 
 weather cannot be landed, the underwriters are to be entitled to 
 receive additional premium for the extra risk incurred.' 
 
 It was agreed that it was unnecessary to embody the whole of 
 this understanding in the policy, as most of it is universally ac- 
 cepted by underwriters. It is true that the legal construction of a 
 policy of insurance would not go beyond its expressed conditions ; 
 l)ut after a recorded declaration of the meaning attached to it by 
 the representatives of both merchants and underwriters, it need 
 hardly be feared that the latter would contest a claim which clearly 
 fell within the scope of the declaration. The efforts of the two 
 committees were therefore directed to framing a clause which should 
 embody such conditions of the bill of lading as were not sufficiently 
 protected by the ordinary practice of underwriters, and especially 
 a deviation clause which would cover the deviation permitted in 
 the bill of lading for coaling purposes, for towing vessels in distress, 
 and for proceeding to another port in case of blockade. The 
 following is the clause that has been agreed upon by the two com- 
 mittees, to be printed on a slip and attached to the margin of the 
 policy, when so required l)y the assured : — 
 
 ' ^I'he goods herel)y insured being shipped under the Eastern 
 Tr:i(lc I'ill of leading, No. , it is agreed that tlic terms of this 
 policy shall ;i|'|ily lo the following sea. ])erils therein referred 1o, in 
 a<lditioii to sncli risks as uvr alri'a(l\' licrchv coveivd : —
 
 INTEUNATIUNAL LAW OF AFFREIGFITMEXT. 3->5 
 
 ' I. All deviation of" voyage provided for in the said bill of lading 
 witli any risk of land carriage incidental to the voyage. 
 
 '2. Sailing with or without pilots; and any act, neglect or 
 default whatsoever of pilots, master or crew in the management or 
 navigation of the ship, improper stowage excepted. 
 
 ' o. All risks attending the goods by reason of their discharge 
 into, retention at, and dt'livL-ry iVoiu any quarantine depot afloat or 
 ashore. 
 
 ' 4. In case of the goods being carried on to a more distant poi't 
 through stress of weather, or because they camiot be found, the 
 marine risk of the additional voyage, as well as of the return voyage 
 to their destined port, the assured agreeing to pay for such extra 
 risk such premium as may be agreed upon. 
 
 ' The attention of your committee has been directed to a discus- 
 sion, originated in the " Times " newspaper, as to the risk of fire on 
 the dock quays, when cargo is landed there by the ship before its 
 tinal delivery to the consignee. It seems very doubtful whether a 
 claim for loss so caused would attach under the marine policy, the 
 obligations of which are discharged when the goods " are safely 
 landed." It has even been doubted whether a policy " including 
 risk of boats," would cover the lighterage to a wharf, after the 
 vessel had been docked, and the goods placed in the first in- 
 stance on the quay. The only sufficient remedy is to introduce 
 a special clause into policies on goods destined for London, 
 whether issued at home or abroad, to the effect that the goods 
 are covered, if landed in transit for delivery to the consignee, 
 or while being conveyed by boats or craft to his warehouse. 
 This, of course, would have to be a matter of special agreement 
 in each case. 
 
 ' It is only requisite to add that the committee is now dissolved, 
 as its functions terminate with the issue of this report.' 
 
 ]Mu. Jencken then moved : ' That a committee be appointed to 
 consider the question submitted by Mr. Reinhold on behalf of the 
 Chamber of Commerce of Calcutta, regarding bills of lading for 
 steamships passing through the Suez Canal, and that such com- 
 mittee be empowered and instructed to act in concert with the ex- 
 isting committee of the General Shipowners' Society, the executive
 
 32G MARITIME LEGISLATION. 
 
 council to nominate the members of the committee and to add to 
 their number from time to time as they shall think fit.' 
 
 This motion was seconded by Mr. H. J. Atkinson, Chairman of 
 the Hull Chamber of Shipping, and was carried. 
 
 Thereupon I read, at the request of the executive council, a 
 paper in which I stated fully what led to the Sheffield Congress, 
 reported its result, and concluded : — 
 
 ' The executive council of this Association will be glad if the 
 gentlemen who take an interest in this subject will form or ap- 
 point a committee for the purpose of considering the Sheffield pro- 
 posals and reporting at the next meeting the result of their de- 
 liberations, with a view to the establishment of an international 
 law of Affreightment.' 
 
 Dr. E. N. Eahusen, of Amsterdam, Counsel to the Nederlandsche 
 Handelsmaatscliappij, expressed his concurrence in the views 
 enunciated by me and spoke in support of my suggestion, to which, 
 after listening to some observations from Mr. Manley Hopkins 
 and Mr. J. E. C. MuNRO, of London, and from the learned Chair- 
 man, the conference acceded, it being determined to leave the 
 selection of the members of the committee to the executive 
 council . 
 
 According to tlie report of the proceedings of the 
 eighth conference of the Association, hekl at Berne in the 
 next year, the following took place on Angust 26, 188U, 
 Dv. F. Sie^'eking, of Hamburg, tlie President of the Con- 
 lerence, in tlie cliair : — 
 
 Mk. Ciiaklks S'rniHS, of London, read the report of the coni- 
 )nittee upon Affreightment, which was as follows: — 
 
 ' In pursuance of the resolution passed by the general con- 
 ference of the Association on August 14 of last year at the Cuildhall, 
 TiOndon, the executive council .•ip])oiiiJ('d tlie following gentlemen — 
 Dr. E. E. Wendt fr'hairman), Mr. -I.^lin Clover, Mr. Richard 
 l.owndes, Mr. Ole .Mr.llor, Mr. Philip If. Rathbone, and Mr. 
 Charles Stubbs (lidu. Sec.) your coniiiiittee to consider tlie
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. ^-17 
 
 subject of iiu latfrnational Liivv of Attivii^-litmcnt, us originally 
 suggested by Mr. T. C. Engels and Mr. I'L van Peborgli of 
 Antwerp, in 18G !•, and enil)odied in the Sheffield rules of 1865, 
 and to report the result of their deliberations to the conference at 
 Berne. 
 
 'Your committee, having fully discussed tlie subject, and being 
 unanimous in their oi)inion, report as follows: — 
 
 • That the Sheffield rules, on which the chairman of your 
 committee founded his report to the conference last year, were 
 based on the principle of English common law of no appoil ion- 
 ment of freight ^^/'O ndd Itineris penidi (or distance freight). 
 
 ' That the reasons in favour of this principle are constantly gain- 
 ing in force, while the practice of effecting insurances on freight 
 luis become so general that the adoption of the principle embodied 
 in the Sheffield rules would involve merely a revision of the terms 
 of freight insurance, which would not be in any way difficult of 
 adjustment. 
 
 ' That the adoption of this principle by all those maritime 
 luitions whose laws still allow p'o raid freight is a preliminary step 
 which must of necessity be taken, before an International Law of 
 Affreightment, based upon the Sheffield rules, has any chance of 
 being accepted. 
 
 ' That, under these circumstances, your committee suggest that 
 it is desirable that the local committees of the Association, the 
 Chambers of Commerce and any of our members who feel an interest 
 in the subject, should discuss the question and obtain further ad- 
 hesions to the principle referred to, and should communicate before 
 the end of the year to your committee the result of their discussions 
 and efforts, in order to enable your committee to make a further 
 and more satisfactory report to the next conference.' 
 
 Letters upon the subject of the abolition of pro rata freight 
 from M. E. van Peborgh, of Antwerp, and Mr. Richard Lowndes, 
 of Liverpool, were also read. 
 
 Dr. Herman Halkier, of Copenhagen, referring to No. 7 of 
 the Sheffield rules, objected to recourse being given to a captain of 
 a ship against a consignee of goods who refused to accept delivery. 
 The consignee was in no way a party to the contract of shipment.
 
 328 MARITIME LEGISLATION. 
 
 It was right tLat the captain should be able to resort to the char- 
 terer or the shipper, but not to a person who merely stood in the 
 position of having an option to accept or decline delivery. 
 
 To this Mr. R. Benedict, of New York, answered that the 
 consignee equally with the consignor might be the owner of the 
 o-oods or the agent of the owner. This being the case, it might 
 frequently be inequitable that the consignee should not be respon- 
 sible to the captain for non-acceptance. 
 
 Dr. F. SiEVEKiXG, of Hamburg, said that tbere were now two 
 questions before the meeting : 1, the abolition of pro rata freight; 
 2, the captain's right of recourse in case of the consignee refusing 
 to accept delivery. It was not the captain's fault if the goods were 
 damaged by the sea, or if the consignee wovild not accept them ; 
 and it was but fair that he should be able to hold some one liable 
 upon such non-acceptance. As his contract was with the consignor, 
 the latter appeared to be tlie person to whom he should be entitled 
 to look for redress. What precise remedy was to be given to him 
 was another thing : the words always employed in the contract 
 were : * on right and true delivery of the goods.' A very important 
 objection to pro rata freight was the difficulty of apportionment. 
 Delivery at the Cape of Good Hope of goods shipped from London 
 for Australia, or ricH rersd, could not be considered a half perform- 
 ance of the contract to carry. By such delivery the consignor 
 might be placed in a worse position than if he had never shipped 
 his goods. It must not be forgotten that it was always in the 
 captain's ])ower to earn the whole of the freight by forwarding 
 the goods l)y another vessel. If pro rata freight were abolished, 
 numy doubts and difficulties would be removed, and an uniformity 
 which was much to be desired would be established between the 
 lawsofdreat Dfitaiu and tlu' oilier comiuercial countries. The 
 l.iw (if his own couuti'v, (Jermany, in no way recognised the 
 |>riiici|)h' <>{' jiro ralii fi'cight. 
 
 M. TllEcjDORE C. Fi.\(;El,S, of Ant wcrp. Chairman of Ihe Belgian 
 lilovd, |)()intcil fiiit thai it was always o[)('n to the i"ij)taiu to 
 jstipnlate for /im rahi freight, where he thought it necessary I'or the 
 prntectiri!! of his intei'csts to do so; foi- instance, in the case of 
 ncrislnilile 'jihkIs. So long as ciiptains of ships knew that they
 
 INTKIiXATlOXAL LAW OK AFFl.'KKillTiMKNT, .".29 
 
 would always earn their distance freight, so long would they l)e 
 indifferent as to what became of their cargoes. He moved: 
 ' That lu-o nihl fn^ght should be abolislied.' This was secondi'd 
 by me. 
 
 l)u. C. C. ])rTiLii, of Rotterdam, in speaking to the motion, 
 declined to accept all the principles laid down in the Slicdield 
 rules. The pro\isiou contained in Rule 5, that ' no fi'eight is due 
 upon goods sold or destroyed, in consequi'uce of perils of the sea, 
 in any port or place other than the port of destination,' would 
 tempt the captain of a merchantman to carry his cargo, however 
 much damaged, at all hazards on to the end of the voyage for the 
 single purpose of earning his freight. 
 
 Mr. F. R. Coudkrt, of New Y'ork, moved as an amendment : 
 ' That freight i^ro rata itineris pcractl should be abolished.' 
 
 Mr. Coudert thought that, unless the words ' itinerU pertirtr 
 were expressed, then, under the resolution, freight would not be 
 payable upon, say, 400 out of 500 barrels of oil, which was 
 obviously not what was intended. 
 
 After some further remai-ks from Mr. C. Stubbs, of London, 
 the amendment was adopted by the mover and the seconder of the 
 resolution and, upon being j^ut to the meeting, was carried by 15 
 votes to 3. 
 
 It was also agreed that the existing committee upon Affreight- 
 lUfUt should be continued for another year. 
 
 We come now lo the more practical proceedings in 
 this matter at the ninth conference of the Association at 
 Cologne in Angust 1881, when, on the Iviliof that month, 
 Mr. 11. II. Meier, of Bremen, the President of the Confer- 
 ence, in the chair, Mr. Eichard Lowndes, at the reqnest 
 of ihe I're.sident, then read the 
 
 h'l-jiaii of the Cuvmiittce on (in Iniernational Late of Affrclijhtiitunt 
 and Hills (if Jjidhuj. 
 
 In compliance with the resolution passed l)y the Berne Con- 
 fci-em-e of the Ast:ociation last vear. that the Committee on the
 
 ;3.J0 MAIJITLME LEGISLATION. 
 
 Iiitemational Law of AfFreightment should be continued for another 
 year, and in deference to the desire of the executive council that 
 the same committee should also consider the subject of bills of 
 ladincy as submitted by the Bengal Chamber of Commerce, your 
 committee have taken the necessary preliminary steps to call the 
 attention of those interested in this subject to its discussion, and 
 have also agreed to report to you as follows : — 
 
 They have, after careful consideration, come to the conclusion 
 that, inasmuch as objections have been raised against certain 
 clauses of the ' projet de loi' adopted by the Sheffield Conference in 
 1805, and submitted to this Association in 1879, it would be 
 advisable to obtain, before further action, the adhesion by the 
 leading mercantile communities to certain principles involved in 
 the matters in question, such as the abolition of fro rata freight 
 (distance freight), and the non-liability of shipowners for the 
 negligence of pilots, masters, and crew, &c., in the navigation of 
 their vessels. 
 
 Your committee consider that this adhesion can best be 
 obtained by adopting and introducing common forms of the 
 documents used as contracts of Affi-eightment, inasmuch as such 
 contracts must necessarily be based upon the principles above 
 referred to. 
 
 Your committee think the most important of these documents, 
 and the one of which the adoption of a common form would be 
 most beneficial and expedient, to be the bill of lading. They con- 
 .sider, therefore, that the efforts of the Association should first be 
 directed to agreeing upon a draft bill of lading, the form of wdiich 
 ■would be generally acceptable. With a view of obtaining a 
 o-eneral consensus of opinion upon the question of what this form 
 .should be, your committee have communicated with a large 
 numljer of Chambers of Commerce, and other mercantile associa- 
 tions of various nationalities, requesting them to consider the 
 subject among themselves, and to send representatives to this 
 conference to take j)art in tlic discussion, aiid pcrliajjs assist in the 
 IVainiiig of such a docniiiciit. 
 
 V'onr comiiiitli*' fully ai)preciato the dilliculty in agreeing upon 
 such common fMriii <>\' bill of lading, fair in its terms to all the
 
 IXTKKNATIONAI. LAW OF AFFIIEKJIIT.MENT. ;i.{l 
 
 parties iu the maritime adventure, to shipowners and shippers, and 
 to their respective underwriters. They are encouraged, however, 
 by tlie knowledge tliat for not years but centuries, and until a 
 com panitively recent date, there was one common form so generally 
 used that it may fairly be said to have been universal among 
 maritime communities. 
 
 This form became necessarily obsolete through the introduction 
 of steam and the consequent alterations in the mode of conducting 
 business by sea ; and changes by means of additional clauses were 
 gradually introduced, the effect of which has been to put an end to 
 the ancient uniformity, without introducing in its place any other 
 uniform system. 
 
 Your committee think that the reform of such a state of 
 things is a fair and proper aim of the Association, and they trust 
 that the discussion hereby introduced may lead to the result 
 desired. 
 
 (Signed) Ernest E. Wendt, Chairman. 
 
 JoHx Glover. 
 EicHARD Lowndes. 
 Ole ]\Iolle]{. 
 James Poole. 
 Philip H. Rathbone. 
 Charles Stubrs, lion. Sec. 
 
 The honorary general secretary then communicated to the 
 conference a paper contributed by Mr. Charles Stubbs, M.A., 
 LL.M., of Loudon, 
 
 On tJie Formulation of a Model Bill of Laclimj. 
 
 A general feeling has for some time been prevalent among 
 shipowners, merchants engaged in export trade, insurance com- 
 panies, and others interested in questions of Affreightment, that 
 in place of the diverse forms of bills of lading now in use, one 
 common foim should by agreement be drawn uyi, to be used 
 universally in all trades, and whether the cturving ship be a sailing 
 or a steam vessel.
 
 ■^>y2 MARITIME LEGISLATION. 
 
 The reasons for the adoption of a single recognised form are 
 sufficient!}- obvious. At the present time a shipper of goods may 
 be wholly in ignorance, until his merchandise is actually on board 
 a vessel, what the terras of the contract are into which he is 
 enterino- ; he may then have them disclosed to him by the delivery 
 of a bill of lading so comprehensive in its conditions, so voluminous 
 in its exceptions, and, in many cases, so complicated from the 
 mixture of printing and manuscript, and the variety of type, and 
 even of cross printing, that neither he nor anyone else who may 
 have or subsequently acquire rights under the contract, nor the 
 lawyers into whose hands the document frequently comes to be 
 explained, can do much more than guess at its meaning. Even 
 if the particular bill of lading happens to be reasonably clear and 
 fair, the uncertainty as to what its provisions will be, as to what 
 principles it will be based on, is a distinct misfortune to the 
 merchant. He may wish to insure — in the vast majority of cases 
 he does — he cannot even tell his insurer the liabilities the latter is 
 to take on himself. In any case, however, in the complications of 
 modern trading, any practice that causes an element of unneces- 
 sary doubt or uncertainty to enter into the transaction conduces 
 to the disadvantage of all the parties concerned, and any attempt 
 to abolish such a practice, if unsuccessful, is praiseworthy; if suc- 
 cessful, confers no inconsiderable benefit on the mercantile world 
 in general. 
 
 Recognising the work to be of vital importance to commerce, 
 and thus to be within the scope of their duties, the Chambers 
 of Commerce of England, both individually and collectively, have 
 endeavoured to formulate for general adoption a j^i'o forma bill of 
 hiding. Their efforts have not indeed, as yet, led to the wished- 
 for result, but they are not the less valuable as showing the 
 growing desire to put an end to the present dubious and unsatis- 
 factory state of the Affreightment question. 
 
 Where such practical and influential bodies as the British 
 ( 'li;iiiil)i'i-s oC ('oiiiiiiei'ee lia\c I'aili'd jo aeliii've tlie t'lul to which 
 they had devol ( 1 1 t Inir eiiei'gi<'s. it may at fii-st sight appear to be 
 well-nigh chini' rii al for a niei'e l;i\v-i-(Toi'miiig association to affect 
 an expectation of luiiig sLiccc.^>l'iil ; but il must be remembered
 
 lNTi:UXATIONAL LAW OF ArFREIGIITMENT. :}:}:] 
 
 tliat the Association, owing to its heterogeneous composition, is 
 peculiarly representative of the interests involvetl, that the intent 
 of its conferences is to afford ample opportunities for the discussio:! 
 of questions of international moment, and that its object particularly 
 embraces the codification of the regulations governing such ques- 
 tions. As an humble endeavour to afford some slight assistance 
 in the discussion introduced by the committee of the Association 
 on bills of lading, the following brief remarks are offered on the 
 formulation of a typical bill of lading. 
 
 It will, it is ])resumed, be admitted that, in discussing a model 
 bill of lading, the interests of two several parties need alone be 
 considered — the owner of the carrying vessel and the owner of the 
 cargo carried ; all other j^jirties concerned must derive their interest 
 from one of these two parties, and should acquire neither more nor 
 less than the just rights of their respective principals. What 
 these rights should be and in what words they can best be enun- 
 ciated are the two questions to be determined ; the former is com- 
 plex, and its decision a matter of considerable difficulty, the latter 
 is by comparison easy ; it should be in simple language, clear, 
 concise and brief. 
 
 In discussing the principles on which depend the respective 
 rights of the above-mentioned parties, it may be well to consider 
 what the object of each is in becoming a party to the contract of 
 affreightment. 
 
 Now the cargo-owner wishes his merchandise to be carried to 
 its destination safely and speedily, the carrier wishes to earn the 
 freight for the carriage of the merchandise surely and in the 
 shortest possible time. So far, apart from the question of accident, 
 negligence or fraud, their interests are so nearly alike that the 
 contract can easily be arranged and formulated ; it is in the deter- 
 mination of their respective liability for damage arising out of the 
 latter events that the practical difficulty arises. 
 
 Clearly, on principle, each should bear the damage which is 
 the result of obvious accident, each should endure or be respon- 
 sible for the damaare which is the direct result of the fraud or 
 negligence of himself; but how if it be proximately caused by the 
 act of third ])arties without any blame being directly attributable
 
 834 :\IARITIME LKGISLATIOX. 
 
 to either of tlie principals, when should this be considered tlie 
 result of accident, when of negligence ? 
 
 It would thus appear that the general principles may be 
 considered practically agreed upon; the difficulty arises in de- 
 termining the applicability of the principles in each particular 
 
 case. 
 
 Assuming that these two principles should govern the contract, 
 it is proposed to consider their applicability in the various instances 
 occurring by examining the clauses, generally termed ' exceptions 
 and conditions,' in use in some of the more usual forms of the bill 
 of lading, briefly commenting on the advisability of inserting or 
 discarding su3h clauses as they are discussed. 
 
 ' Weight, measure, quality, contents, and value unknown,' is a 
 condition Avhich appears to be fair to both parties. If any diffi- 
 culty arises after shipment on any one of the points to cover which 
 this clause is intended, the dispute must resolve itself into the 
 question, Was or was not the merchandise shipped as described in 
 the body of the bill of lading ? If it can be shown not to have 
 been so shipped, the cargo-owner can have no claim ; in the event 
 of the converse being proved, the shipowner should be considered 
 liable to redeliver the cargo in the same condition as shipped. 
 How is it to be decided in what condition the cargo was shipped ? 
 It is submitted that a fair way to determine this may be thus laid 
 down : It should be agreed that a statement in the bill of lading, 
 describing a condition of the cargo naturally obvious to the ship- 
 owner or his representative at the time of loading, should be con- 
 sidered as irrimd facie evidence against him as to such condition 
 when so shipped ; otherwise, in the case of the condition not being 
 in accordance with the description, the shipper would be deprived 
 by the shipowner's neglect of the opportunity of detecting and 
 rectifying a possible fraud or mistake at the time when alone such 
 detection or rectification would be easy, without any compensating 
 equivalent for the injury thereby done him. It should be equally 
 agreed that the onus of detorniiiiiiig a condition not obvious is a 
 burden which should not fid! on ilic slii))0wner. The weight, mea- 
 sure, cpiality, contents, and wilue :iro not so naturally obvious 
 witlioul- an inspection, which it would be unfair to expect of the
 
 INrj-lKNATIONAL LAW OF AFFREIGHTMENT. .'«5 
 
 sliipowuer, unci the cuudltion protecting Iiiin accord ing-ly fVom 
 bearing this onus may fairly be inserted. 
 
 ' Reasonable wear and tear ' is naturally in the nature of an 
 accident which should fall on the owners of the goods suffering the 
 same. ' Cutting excepted ' is a qualifying phrase sometimes added, 
 but this is unnecessary verbiage, for cutting cannot be considered 
 to come under the description of ' wear and tear ' in any way. 
 
 ' Inaccuracies, obliteration, absence, &c., of marks,' and the 
 like, must surely be an improper exception. The shipowner 
 should protect himself by refusing to accept unmarked or insuffi- 
 ciently marked goods; subsequent tampering with the marks 
 cannot be an accident, and consequent loss thereby caused should 
 not fall on innocent shippers. 
 
 ' Leakage, breakage, heat or decay,' is a phrase of doubtful im- 
 port ; they may all be caused by ' inherent vice,' to use a phrase 
 the meaning of which is well known; in that case, again, obviously 
 cargo-owners' risks ; but heat and decay may, on the other hand, 
 be caused by improj^er stowage or want of ventilation. Improper 
 stowage is a cause beyond the control of the cargo-owner, but 
 particularly within the duty of the shipowner ; want of ventilation, 
 again, may be a necessary result of bad weather, an accident of 
 the sea, provided against in a later clause, or it maj be caused by 
 the carelessness of the master or crew. It will be submitted, 
 infra., that any negligence not solely in the navigation of the ship 
 should not form the basis of an exception ; here, therefore, all that 
 it is admitted as necessary for this phrase justh" to cover is, the 
 result of ' inherent vice.' This could more simply be done by 
 inserting this latter term alone, but the alteration is after all un- 
 necessary. It has been laid down in the English Courts of LaAv, 
 that where damage results proximately from a certain cause, such 
 as leakage, for instance, but mediately through some wrongful act 
 or neglect (the causa caiisans)^ the neglect, and not the proximate 
 leakage, is considered the real cause of damage ; the clause, there- 
 fore, will mean no more than ' inherent vice ' would, and may 
 without modification stand. 
 
 ' Sweat and rust ' can only be caused respectively by want of 
 ventilation, a peril of the sea, or an act of negligence, and by
 
 33G MARITIME LEGISLATION. 
 
 insufficient preparation of the sliip for its voyage, an improper 
 omission on the part of the shipowner himself. 
 
 ' The Act of God, the Queen's enemies, pirates, robbers by land 
 or sea, restraint of princes, rulers, or people.' This is an old and 
 time-honoured phrase, the meaning of which has become, from 
 frequent discussion in the Courts, well known, and against which 
 objection can hardly be maintained. 
 
 ' Explosion or fire.' The same remark made in reference to 
 ' leakage ' applies to ' explosion ' and 'fire.' 
 
 ' Jettison,' if not improper, is a ' danger of the sea,' and the 
 word may be omitted as redundant ; if improper, is a default of 
 master or crew, and will be considered under that head. 
 
 ' Act, neglect or default of master or crew.' This opens up the 
 most difficult question of all^ — -who is to be liable for acts which ' 
 are apparently beyond the control of both the parties to the con- 
 tract ? The exception, by its obvious meaning, excludes the idea 
 of accident ; it points to damage caused by the voluntary act of 
 those navigating the ship. Clearly the cause is entirely independent 
 of the action of the cargo-owner ; and since the idea of accident 
 is excluded by the principle laid down, he is entitled to be recouped 
 for the loss sustained. Theoretically he should be reimbursed by 
 the party causing the loss, the master or crew, as the parties by 
 who.se immediate defiiult the damage is done; but, as a rule, it 
 would be futile to expect reimbursement from them : not so from 
 the shipowner, and if he is also a party to the act or default, he 
 must also be hfld liable. Now the shipowner is obviously not, in 
 point of fact, a participator in the act, but (apart from special con- 
 tract) he is, by reason of the defaulting party being his servant, 
 considered as a participator by the law of most civilised countries. 
 There are two parties : one must suffer, the cargo-owner is absolutely 
 free from blame or carelessness, the shipowner is so likewise, un- 
 less it be that he has not exercised due care in the selection of his 
 .servants ; it is impossible to determine that except by the light of 
 the subsequent event ; the servant has been negligent or worse, he 
 is a negligent servant, his act proves it, the law assumes, not, as is 
 fref|uently said, that the innocent master is liable for the negli- 
 L'eiiee of ]\'\y. servaiil, Itiit that the master is liable as having been
 
 IXTl-llNATlONAL LAW OF AFFHEIGIITMKNT. 337 
 
 himself guilty of" negligence in want of care in selecting his 
 servant. This may seem hard upon the shipowner, but to hold the 
 reverse would be liarder on the cargo-owner, who is helpless in the 
 matter ; and the experience of centuries has shown the wisdom of 
 the princi[)l(^ involved. There must be a pn'suiiiption one way or 
 the other, either that, however negligent, however incompetent the 
 servant is, the master is blameless, or that the negligence of the 
 servant is a proof of a certain amount of negligence on the part 
 of the master, sufficient to make him responsible for the resulting 
 damage. 
 
 Which of these two presumptions is the most equitable can 
 hardly admit of doubt, which is most in accord with policy is surely 
 equally clear : presume the innocence of the master, and a great 
 inducement to him to exercise care on behalf of parties entirely 
 dependent on him for its exercise is withdrawn. 
 
 The reasons in favour of holding a shipowner responsible for the 
 negligence of his servants do not, however, with the same force 
 apply to holding him liable for their simple errors of judgment ; 
 there is no necessity for a man ever to be negligent ; it is abso- 
 lutely certain that he must be always liable to commit errors of 
 judgment. Now the great majority of accidents of navigation, 
 not the consequence of inevitable accident, result chiefly from 
 errors of judgment ; there may perhaps be some carelessness in 
 addition, but the main cause is error of judgment. It would seem 
 llxir, therefore, for the shipowner to exempt himself from liability 
 for the result of such accidents ; and to obviate the probability of 
 much discussion as to whether or not the accident was caused 
 solely by an error, and not by any such carelessness, it may be con- 
 sidered fair and proper to insert an exception against ' acts, 
 neglect, or default of master and crew,' but, for the above reasons, 
 strictly restricted by the words ' in the navigation of tlie ship," or 
 others to that effect. 
 
 'Act, &c. ofl'ilols.' — This is quite unnecessary; the acts of a 
 pilot, if in compulsory employment, do not involve tli." liabilily of 
 the shipowner ; if employed otherwise than by compulsion of hiw, 
 ho is simply a member of the crew, and the exception as above 
 will cover his acts.
 
 r.38 .MAKITIMl-: l.EGISl>ATIOX. 
 
 'Bamdr./:— The reasons for excluding negligence gvnenilly 
 from the exceptions apply of course to ' barratry.' 
 
 •Dano-ers or accidents of the seas and rivers' is a ]>roper 
 exception to insert to exempt the shipowner from liability for 
 dunao-e resultino- from perils of the sea unconnected with acts of 
 
 nesfliofence. 
 
 Without useless iteration, it would be difficult to deal with 
 the nianv other conditions annexed to some bills of lading. It is 
 submitted, however, that the above-mentioned clauses include all 
 the exemptions necessary to be inserted. 
 
 So far for the exemptions. In the body of the bill of lading- 
 it is suo-o-ested that there should be omitted all such terms as 
 • from the ship's tackle,' ' over the ship's side,' ' as customary,' &c., 
 tt) sio-nifv the time of delivery when the shipowners responsibility 
 ^hould cease. The responsibility should cease ' on delivery ; ' what 
 delivery is cannot be described in one document to suit all cases ; 
 it nmst depend on the peculiarities of the place of discharge, and 
 the manner of unloading there customar}', but it is a question of 
 fact not difficult to determine in each particular case. 
 
 "Where parties other than the master sign the bill of lading 
 there is always a difficulty, in case of dispute, in proving the au- 
 thoritv of the signor to sign ; on the other hand, if the master 
 sio-ns it — as he always should — the authenticity of the document 
 and the wording of the terms of the contract are placed beyond 
 dispute. 
 
 Thf number of C()i)ies of the bill of lading to be signed is 
 another moot jxiint; but it is clear that the number should be 
 limited, to avoid as much as pr>ssible the chance of frauds being 
 succcssfuUv ])erpetrated, such as the one which gave rise to so 
 nnu-h litigation iu the case of Cilyn, Mills aiul Company r. The 
 Hast and West Jiulies Dock Tomijany (Law lv<-]i. oQ. B. D. 120; 
 (i Q. H.l). 17".;. 
 
 In (Hilcr io make thes(^ observations more ch'ar and intelligible 
 ;i (lr;ifl bill of lading eiiilio(]yiiig tlic results arrived at is annexed. 
 
 It I- not expected that llic remarks herein expressed will meet 
 with gr'uenil ajiproval, licit hn' is it suggested that the model form 
 is in anv wav perfect : liul il as may percliance happen, they
 
 INTEllXATIONAL LAW OF AFFKEIGIITMEXT. ^'.'M 
 
 should assist iu any, even tli(i smallest, degree tlie deliberations ot 
 the Association in their efforts to formulate a bill of lading which 
 will bo fair in its icruis and generally acceptabl(\ the purpose of 
 the writer will have been n)ore than ami)ly fulfilled. 
 
 MoDF.L Bill of Ladlvo. 
 
 Shipped in good order and condition by A. B. on board th« 
 ship X., whereof is master for this present voyage C. L)., n(jw lying 
 in tlie port of Y. and bound for Z. 
 
 being marked and numbered as per margin, to be delivered on 
 production of this bill of lading, subject to the exceptions and 
 conditions hereinafter mentioned, in the like good order and con- 
 dition, when the shipowner's responsibility shall cease, at the afore- 
 said port of Z., or so near thereto as she may safely get, unto E. F. 
 or to his assigns, on his or their paying freight for the said goods 
 at the rate of 
 
 Average as accustomed. 
 1'lio following are the exceptions and conditions above referred 
 to:— 
 
 AVeight, measure, quality, contents and value unknown. The 
 shipowner not to be i*esponsible for reasonable wear and tear of 
 packages or goods; nor for leakage, breakage, heat, or decay ; nor 
 for loss or damage arising from the act of God, the Queen's enemies, 
 pirates, robbers by land or sea, restraint of princes, rulers or people, 
 act, neglect or default of the master or crew in navigating the vessel, 
 tire, explosion, nor for any dangers or accidents of the seas and 
 rivers. 
 
 In witness whereof the master of the said ship has signed two bills 
 of lading exclusive of his own copy, all of this tenor and date, one 
 of which being accomplished the others to stand void. 
 
 Datea at Y. 188 . 
 
 (Signed) C. I). 
 
 The President then called upon Mi{. UkhaiU) Lownuks to read 
 a paper he had preparetl 
 
 z 2
 
 340 MARITIME LEGISLATION. 
 
 On a Common Form of Bill of Lading. 
 
 Uniformity in the law of Affreightment, as amongst the mari- 
 time countries of Europe and A^merica, is desirable, not merely as 
 simplifyino- the relative conditions under which the shipowners of 
 different countries are to compete together in the carrying trade, 
 but still more, perhaps, because the ship of any one country is 
 continually placed under the influence of the laws of some other 
 country, so that the English shipowner, for example, has a direct 
 personal interest in the French, German, and American, and every 
 other law of Affreightment ; his ship seeking for employment in, 
 or being obliged to visit, sometimes in the ordinary course of navi- 
 gation, sometimes as the result of accident or sea peril, the porta 
 of every country in the world. 
 
 It has been pointed out by M. de Courcy, in his admirable 
 pamphlet recently published, ' La responsabilite des proprietaires 
 de navires en Angleterre et en France,' that courts of law and 
 legislative bodies have been the most tard}", we may almost say 
 have alone been tardy, in recognising the importance of inter- 
 national rules, or, to speak more exactly, of rules common to 
 several, or, if possible, to all nations, in matters of maritime 
 commerce. It is not Governments that are chargeable with this 
 reproach. There exist treaties of commerce, postal conventions, 
 international rules for the prevention of collisions, international 
 conferences, ' on a great number of questions of science, of hygiene, 
 and of political economy.' Nor can private individuals, men 
 engaged in commerce or connected with it in this or that practical 
 relation, be charged with this reproach. There is, I venture to 
 say, no Chamber of Commerce in England, or any other country, 
 which is not more or less in correspondence with those of other 
 countries, on subjects bearing on some branch or other of this 
 large topic — the unification of mercantile law. Indeed, the very 
 existence of this society of ours bears witness to the common 
 impulse. F>y a strange contrast, says M. de Courcy, nothing, or 
 ii(;xt to iK'lliiiig, of the kind is found in tlio Sjihci-o of internal 
 legislation. J<]ach country is conservative of ils old laws, or re- 
 form;-- thr-m slowlv, without taking concert with its neighbours.
 
 INTERNATIONAL LAW OF AFFREIGIITxMENT. 341 
 
 and the consequence is that reforms, made in opposite directions, 
 frequently have the effect of widening the differences which existed 
 before. ' I am convinced,' says M. de Courcy, ' tliat in the 1 oth 
 century the feudal law of France more resembled that of England 
 than the civil institutions of the two countries resemble one 
 another at the present day.' 
 
 Though tardy in their movements, however, courts of law and 
 legislative bodies are to a certain extent amenable to influences 
 from without ; and an opinion widely spread and strongly felt 
 amongst mercantile men is sure, sooner or later, to force its way 
 into legislation. What is taking place with regard to the law of 
 General Average, in the direction of unification through the 
 medium of our York- Antwerp Rules, must serve for encourage- 
 ment to us in this more ambitious and more difficult task of 
 unification of the law of Affreightment. 
 
 Hitherto our efforts in this direction have been what we may 
 call empirical. We have taken one striking example of the evils 
 resulting from the divergency of laws — the subject of 2>ro ratd 
 freight — and have endeavoured to establish uniformity with regard 
 to that one point. Something has already been done here in the 
 way of reform — witness the new Belgian Code, in which the rule 
 on this head has been altered, and assimilated to that which 
 prevails in England, and which was recommended for general 
 adoption by this Association. Another empirical i-eform, if I may 
 call it so — I mean a reform of detail, aiming at a conventional 
 jmiformity, in a matter which hardly admits of being reduced to a 
 principle — has recently been recommended to our notice by the 
 well-known name of M. de Courcy, namely, a uniform rule as to 
 the limitation in amount of a shipowner's responsibility for the 
 faults of his servants. To-day we are to consider another aspect 
 lift lie subject, a proposal which is not empirical, which does not 
 aim at dealing with this or that symptom of the malady, but would 
 strike at the root; that is to say, a proposal to establish uniformity 
 in the law of Affreightment by the adoi)tion of a common form of 
 bill of lading, in which the principal conditions of an international 
 law shall be embodied in express terms. 
 
 This. I ackuowledw. is a bold undertakiiiijr. ami one that we
 
 342 MARITIME LEGISLATIOX. 
 
 caunot expect to carry to its perfection in a single session. I tlo 
 not propose, in this paper, to go so far as even to lay before yon 
 the complete formula of the proposed bill of lading. I desire only 
 to offer some general observations, mainly for the purpose of elicit- 
 ing opinions from my present hearers, as to the utility of such a 
 course, and as to the principles on which the proposed international 
 bill of lading should be drawn. 
 
 In the first place, then, it will probably be agreed on all hands 
 that the true reason why there are these divergencies of laws on 
 the subject of the contract of Affreightment is, not any difference 
 in the principles or rules of construction adopted by the legislatures 
 or courts of the different countries for interpreting the contract — 
 not this, or this at most in a very minor degree — but the loose 
 and imperfect manner in which the intentions of the contracting 
 parties are set forth on the face of the instrument of contract itself. 
 It is because neither bill of lading nor charter-party is sufficiently 
 explicit — because the instrument is wholly silent where it ought 
 to speak, or speaks vaguely where it ought to be precise ; it is for 
 this reason mainly that this instrument has in different countries 
 received a different interpretation. Now for this mercantile men 
 have the remedy in their own hands. They have only to agree 
 among.st themselves as to what they really intend and wish, and 
 then to say so on the face of their contract in words which contain 
 no ambiguity. 
 
 I will take, for an illustration of this, the one point which 
 happens to have forced itself principally on my notice — the phrase in 
 the old form of bill of lading, ' the accidents of navigation excepted.' 
 The hill of lading is a receipt for the goods, an acknowledgment of 
 their being in good condition when received, and an undertaking 
 to deliver them, by a specific route, at a place defined, to a per.son 
 named or to be named, on payment of a stipulated rate of freight. 
 All the conditions of a pro,<;pproiif< voyage — conditions comparatively 
 simple — are defined with exactitude ; but as for what is to be done, 
 what are to be the respective rights of the contracting parties, in 
 any of the various circumstances which may lead to the voyage not 
 being absnhitr-ly prosperous— a case uiifVirl unately too frequent — 
 there is iirit ;i woid in the <ir(liii;ir\ t'onn of crintract, bevond this
 
 INTKIlXATIoXAl, I.AW oF AFFIM'.K HI IMK NT. 1^4'. 
 
 Vagno e\]>r('ssi(m, ' tlio aooidents of navigation e.voeptcd. Now 
 the question arises, ulieilior this ought to lie, or whether we can 
 devise anv iinproveiiient. Is it not the fact that ahuost all — that 
 certainlv the most iniixtrlant amongst — the divergencies of our 
 different laws concerning Allreightnient, have to do with this pas- 
 sage in the hill of lading? Jt' we could only express ourselves a 
 little more distinctly — if we would oidy say what we mean l>y this 
 important exception — should we not have made a considerable step 
 towards uniformity ? This, of course, is on the supposition that we. 
 all mean, or can be brought to mean, the same thing; if not, our 
 conferences here are a mere wa <te of time. 
 
 The clause • aeci(li>nts of navigation exc(*})te(l,' standing in the 
 bill of hiding where it does, immediately ibllowing and (jualitying 
 the undertaking on the part of the shipowner to deliver the goods 
 at their deslinati<^n in the like g(t(Kl order as when shipped, amounts 
 to no more than the negative ]iro|-.osition that, in the event of such 
 accidents, the shipowner is not bound to do an impossibility. 
 What is to be regarded as an accident of navigation ; how to treat 
 a mishaji which is due conjointly to a sea peril and to a fault or 
 neglect of the nuvster or seamt'u, or directly to one and remotely to 
 the other; whether upon the occurring of an accident, the con- 
 tract is to be regarded as annulled, or suspended, or whether any 
 or what new relation between the contracting parties is there- 
 n]ion set u]i ; whether, if the ship be disabled by such accident, so 
 that there has been a partial performance of the engagement to 
 carry, the shipowner is to be entitled to a proportionate part of his 
 freight, or whether he is at liberty to earn the whole by sending 
 on the g(X)ds in another bottom, or whether he is bound to do so if 
 he can ; whether the shipowner shall be answerable for the faults 
 of his crew, and if so, whether he shall be answerable to an un- 
 limited extent; wdiether, in case of sacrifice made for the sake of 
 all, there shall ])e a contribution as (Jeneral Average, and if so by 
 what law, or on what principles, such contribution shall \h' regu- 
 lated : concerning all these points, and others like them, the con- 
 tract is absolutely silent. 
 
 Now it is interesting and inih ed ini]iiivtant for onr present 
 purpose, to consider in what way this omitted or unwritten part of
 
 344 MAKiriME LKUISLATIOX. 
 
 the contract has gradually been filled up. A body of regulations 
 on the subjects here indicated has in the course of time been 
 formed, not in the first instance by the municipal laws of any 
 one country, nor of several countries, but by the usages of seafaring 
 men without distinction of nationality. The oldest written records 
 of these usages were drawn up at places where there were great 
 gatherings of the ships of various countries. I will not speak of 
 the Roman law, or of the Pandects — bodies of law drawn up at 
 a time when the whole civilised world was, at least nominally, the 
 subject of a single empire. Even these codes are said to have 
 been, so far as relates to maritime affairs, not much more than a 
 resume of usages already existing amongst traders by sea. We 
 mny confine our attention to what took place in comparatively 
 modern times, when, in the confusion and ignorance which 
 followed the disruption of the Roman Empire, these codes were 
 buried in obscurity, and commercial or at least maritime legis- 
 lation had to make a fresh beginning. Here we find, according 
 to tradition, the laws or customs of Oleron — the oldest modern 
 written sea-law — drawn up at some gathering of merchant ships 
 off the island of Oleron in the period of the Crusades. Next in 
 anticpiity. perhaps, to this may be placed the Ordinances of Wisby ; 
 A\'isby, in the Baltic, being at that time a mart, or rendezvous, 
 frequented by the ships of all nations. There was nothing muni- 
 cipal, nothing which could l)c said to belong to one country rather 
 tJian another, about either of these collections of maritime usages ; 
 nor was there anything municipal or local in the authority accorded 
 to tlicin. 'flx'y were regarded, all over Europe, as declarations of 
 the coiiiiiicn law of the sea ; they contained the authorised expres- 
 sion of the me.'ininir which merchants and mariners attach to this 
 unwritten ]")ortion of their contnictof Affreightment. Munici[)al 
 law on this sn Inject came hit 'r. The differences in the laws of 
 ililfereiit countries im lliis sulijecl jlius appear to have had tlieir 
 origin, not in any diffeicnce eiilier in I lie nature of the contract, 
 or of the understanding of merclianls or seafaring men as to what 
 they themselves intended by il, but merely in the circumstance 
 that this nndei'standinL'' had ia'\er Itecn sullicieiitly reduced to 
 writing, an I iia'l, in thi' piMccss oftime, come lo be inl ei'])rete(l by
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 345 
 
 lawyers in different places, and, naturally enough, in different senses. 
 If, therefore, it should now happen that merchants and shipowners, 
 awakening to a sense of the inconveniences resulting from these 
 differences, should seek to remedy them, by coming to an under- 
 standing as to what the common law of the sea, concerning 
 Affreightment, ought to be, and should agree on a form of words 
 completing that which heretofore had been unwritten in the con- 
 tract, there will in this be nothing revolutionary, but merely the 
 natural development of the original contract itself. I do not for a 
 moment deny that the difficulties in the way of coming to such an 
 understanding are considerable. 
 
 One great difficulty — perhaps the principal one — results from 
 the change in the character of sea-traffic resulting from the intro- 
 duction of steam. It seems probable, if not certain, that before 
 long there will be no important traffic by sea except in steel 
 or iron steamers. Concurrently with this change, there has been 
 growing up in the minds of the owners of these steamships a con- 
 viction that there must be one radical change in the old common 
 law of the sea ; that is to say, that the shipowner can no longer 
 undertake to be answerable for the faults or neglects of the master 
 or crew. It is enough, they think, if the shipowner engages to do 
 that which a man can do — that he will build a ship fit for her 
 work, and keep her fit, and will man her with a crew sufficient in 
 number, and competent as to quality, so far as competency can be 
 ascertained beforehand, and with a master and officers who have 
 obtained the certificates of competency required by law. To 
 undertake that these men should always do their duty, and in the 
 course of a long voyage shall never once be guilty of a neglect, or 
 mistake, that shall have a mischievous result, involves a liability 
 which these owners of steamships do not care to undertake. I 
 will not stay to discuss the question whether they are right or 
 wrong, wise or unwise, in holding this conviction. It is a fact 
 which we must not ignore, that the great majority do hold it ; and 
 that at present they have the power, and exercise it most 
 effectually, of giving effect to this conviction by means of clauses 
 in their bills of lading. Though there are gi*eat varieties in the.se 
 clauses, though souie are more comprehensive in their exclusions
 
 :U(i MAIMTI.MK f.K(;rSLATl()X. 
 
 tlian others, this ruliuo: idea is in all of thein ; the owner refuses 
 to be held liable towards the shipper or owner of the cargo for tlie 
 faults of his crew. 
 
 Xosv, so long as the owners of steamships, speaking of them as 
 a body, hold this conviction so strongly as to nnite in refusing to 
 carry merchandise on any other terms, it cannot be denied that 
 they are acting within their rights. No one is bound to build a 
 steamer, or, having built it, to allow some one else to send goods 
 in her on conditions which he himself does not like. And there 
 are some good reasons for thinking that the owners of steamships 
 are likely to persist in this view of the subject. In fact, it is a 
 view which springs almost inevitably from the nature of steam 
 navigation. It is no exaggeration to say that, if not all, certainly 
 the great majority of accidents to steamers are traceable to the 
 fault of some seaman or engineer. A well-built steamer is ]x>weiful 
 to resist the adverse forces of nature ; she hardly can s]iring a leak 
 in any gale, and her engines will keep her off a lee-shore ; but she 
 is at the mercy of her own servants ; a careless engineer or stoker 
 neglecting to keep up water in the boilers may destroy her by an 
 e.vplosion ; the rapid ]iace and the frequent entering of harboui-s 
 greatly increase the risk of stranding and collision, each mostly 
 traceable to a sailor's fault. 
 
 Here, then, is the state of things we have to deal with, a state 
 of things curiously complicated, unsatisf^ictory, and not likely to 
 last without some change. There is at present no form of bill of 
 lading common to steamships ; the old form, still used for sailing 
 ships, is inadequate even for these, since it has been interpreted in 
 different ways in different countries; and the form for sailing-ships 
 on the one hand, and the various forms for steamships on the other, 
 go on different principles in a matter of the most everyday occur- 
 rence and most vital importance. It is obvious, thei-efore. thai 
 some change, and perhaps a sweeping one. has become necessai'v. 
 
 W^hat that change shouhl l)e is a maltt'r as to which we nnist 
 speak less confidently. Some men doubt — and I cannot say that 
 the doubt is unreasonable whefhei- we are yet ripe for a change ; 
 wild lier t he transition from (lie sailing sliip to the steamer, and 
 perliap fiMMi tile |)n\ale slM|io\\iier to tlie e'ini|ianv. must not lli-t
 
 INTKKNATIOXAI. LAW OF AFFltEIf JnT.Mi:XT. 847 
 
 complete itself, or at least reach some kind oi'aleveLstaiHling-grouml, 
 before the ]-)ennanent conditions of the bargain between carrier and 
 shipper, iiiulcr this new state of commerce l;y sea, can be adjusted. 
 Bnt tliough this be so, it by no means follows that it would be pre- 
 mature to discuss, and by discussion lay the foundations of, the bill 
 of lading of the age of steam. This bill of lading, which shall ex- 
 press the standing conditions of the contract, will not certainly be 
 invented all at once, nor yet adopted by acclamation : a period of 
 gestation must precede it; and it is this preliminary work to which 
 our attention is now invited. 
 
 In the first place, then, so far as regards the lial)i]ity of the 
 shipowner for the acts of his servants, I cannot think that there 
 should be a permanently different rule for the sailing-ship and 
 the steamer. If sailing-ships continue to exist at all, these, as the 
 less important, will naturally conform themselves eventually to the 
 form of contract adopted for steam. I do not here speak of the 
 temporary question of polic}', whether or not it may be to the 
 advantage of the owners of sailing-ships, in their struggle for 
 existence against the rising preponderance of steam, to hold out 
 to shippers the temptation of more favourable terms. Whether 
 this will do them any good is a matter of speculation, interesting, 
 no doubt, to those who own sailing-ships, but of no permanent im- 
 portance when regarded from the point of view of this Association 
 as a question of maritime legislation. 
 
 Turning, then, to the form of bill of lading for steamships, the 
 question which first presents itself is this : Is it wise or desirable 
 that the owners of steamships should exempt themselves from 
 responsibility for all the faults or neglects of their servants, or 
 only for such losses as, though remotely brought about by such 
 faults or neglects, are yet directly caused by the accidents of 
 navigation ? There is a broad distinction between the two. At 
 present, most if not all the forms of steamship bills of lading draw 
 no distinction. Most of them contain clauses which exempt the 
 shipowner from responsibility towards the shipper, not merely for 
 losses resulting from a collision or stranding, or accident of a like 
 nature, brought about by the improper conduct of the crew, bnt 
 also for damage through improper stowage, or careless delivery of
 
 348 MARITDJE LEGISLATION. 
 
 goods to the wrong consignee, and, in a word, for every kind of 
 detriment suffered by the owner of the goods through the improper 
 conduct of the shipowner's servants. The question is, whether 
 this is not going too far. 
 
 Here again I may exclude from our consideration that which 
 I may call a temporary question of policy, arising under particular 
 circumstances. Some owners of lines of steamships, having a 
 practical monopoly of a particular trade, and therefore a powerto 
 dictate their own terms, may conceive it to be to their advantage, 
 so long as they are thus masters of the situation, to concede to 
 the shippers as little as possible. Men in this position may even 
 resent, as an impertinence, what they may describe as an attempt, 
 on the part of persons outside their trade, to dictate to them the 
 terms on which they shall conduct their own business. With all 
 this we have nothing to do. We are to consider the question on 
 broader grounds. Our question is, whether it is not to the advan- 
 tage of commerce in general, and therefore in the long run to the 
 advantage even of the shipowners placed in the enviable condition 
 I have described, that there should be one general form of contract 
 for the carriage of goods in steamships, subject of course to modi- 
 fication in exceptional cases, but still constituting a standard, 
 which can be recognised and cnrried out in the legislation of all 
 countries. Such general form, in order to be permanently accepted, 
 must be satisfactory to both parties concerned, and, that it may be 
 so, must be reasonable. 
 
 Now it has for centuries been a sort of maxim, or fundamental 
 principle in maritime commerce, that between the shipowner and 
 the underwriter the goods-owner ought to be k('j)t harmless against 
 all lo.sses except those of the market. WHien once the goods have 
 been put on board, properly packed so as to be fit for carriage, 
 and vvhen they have been fully insured against all risks, the owiiei- 
 of lliem ought, by one contract or the other, to feel secure. The 
 rule has been that the shipowner undertakes to deliver them, 
 accidents of navigation excepted ; and the accidents of navigation 
 are guaranteed by tlic insurer. ]t is not to be expected that anew 
 form of contract , wliieli shall dest i-oy the entirety of this security, 
 will be |)eniiaiieiit Iv sat isfaet()i'\' to the shi])]»ei's of cargo. Il may
 
 INTEllXATIONAL LAW OF AFFREIGHTMENT. 340 
 
 for a time be submitted to from a necessity arising from monopoly 
 or a trades-union amongst steamship owners, but the submission 
 will be reluctant ; any steamship that should offer better terms in 
 this respect would at once gain a great advantage over her com- 
 petitors ; you would not have a state of things that could be regarded 
 as satisfactory or stable. 
 
 On the other side, looking on the question from tlie sliipowner's 
 point of view, the reasons which originally led the owners of 
 steamships to disclaim liability for those misdoings of their ser- 
 vants whicli relate to the stowage and delivery of the merchandise, 
 and matters of that kind, are such as belong, we may say, to the 
 infancy of steam navigation, are already beginning to lose much of 
 their force and are likely to lose in time ahnost if not all force. 
 Those reasons may be reduced to one principal head — the peremp- 
 tory necessity, for steamers, of despatch. Practical men know veiy 
 well that, in the early days of ocean steaming, this necessity for 
 despatch led to a great deal of hurry and confusion in the loading 
 and discharging of steamships. The old deliberate ways which 
 served for sailing-ships had to be abandoned. The art of method- 
 ising haste, of doing the work at once quickly and well, was not 
 acquired all at once. It has been necessary to learn that art ; and 
 it may now certainly be said that great progress has been made in 
 the learning of it. But in the early stages of this learning, when 
 it was strongly felt that despatch was essential, while it was not 
 yet seen that despatch was not incompatible with strict precaution 
 against error, the first and easiest way of proceeding naturally seemed 
 to be, to shake off the responsibility for careless loading or careless 
 discharging. This crude device is not now nearly so much needed 
 as it was at first ; and the time is certainly coming, if indeed it has 
 not come, when the owners of steamships may safely resume the old 
 wholesome check upon such carelessness which is afforded by their 
 taking the responsibility for it on their own shoulders. 
 
 Now let us turn for a moment to the position of a party indi- 
 rectly, indeed, but intimately connected with the contract — the 
 underwriter. There are, I think, reasons for believing that under- 
 writers as a body, while it would be scarcely possible to induce 
 them to take upon themselves risks so entirely strange to tliem, of a
 
 350 MAKITIME LEGISLATION. 
 
 nature so different from unytliing they have as yet had to deal with, 
 as the risk of bad stowage or of improper delivery, yet would make 
 no great difficulty in adapting themselves to a contract under which 
 thev should merely be asked to make good losses resulting from the 
 })erils ordinarily insured against, just as they do now, but without 
 having, as in certain eases tliey have now, a recourse against the 
 shipowner, wlien the peril or loss can be traced to the fault of his 
 servants. In truth, such a change would only be a return to the 
 state of things which in England, practically, existed up to about 
 the year ]864< or 1866. It has long been the rule of law in Eng- 
 land, as I dare say in all other countries, that, as between insurer 
 and assured, the former is liable, under the old maxim of law, ' Causa 
 proxima, non remota, spectatur,' for losses directly caused by a peril 
 insured against, notwithstanding that the loss may have been re- 
 motely brought about by the fault or neglect of someone other than 
 the assured himself. If the shipowner's servant negligently sets 
 the ship on fire, or runs her aground, or into collision with some 
 othei' ship, the underwriter must bear the loss. It was for a long- 
 time generally supposed, I do not say by lawyers, but certainly 
 by mercantile men, that the same rule applied to the contract of 
 Atfreightment, and this supposition was for a great length of time 
 generally acted on in practice. The clause ' accidents of navigation 
 excepted ' was supposed to free the shipowner, as between himself 
 and the owners of the cargo, from all liability for losses directly re- 
 sulting from such accidents, so as to render unnecessary any inquiry 
 into the conduct of his servants, the master and crew. In those 
 days Board of Trade incpiiries into the causes of maritime disasters 
 did not exist. I well remember the shock to our preconceived 
 notions which was given, in the years I have named, by two deci- 
 sions of the English courts, which followed one another in rapid 
 succession, both against the same defendant. One of these cases 
 was called Lloyd, 1 he other (Jrill, against the Screw Collier Com- 
 pany. They laid down the law to be that there was in this matter 
 a fundamental difference of ])rinci])le between the contract of in- 
 surance and lli;il ol" A Hrfiu'lit mcul ; lluit, in fact, the 'accidents of" 
 navigation in tlic bill <>i' hnliiig li;id not so wide a iiK^aning as the 
 perils of the seas." A:c.. in the jiolicy of insurance. 1'lie jiei'ils whicli
 
 IXTKKXATroXAL LAW OF AFFKKKillTMKNT. .'{.",1 
 
 the uiidi'i-writi'i- tiikc.'S upoii himself, it Jippetirs, include looses ra- 
 inolely brouglit about Ijy the fault of the servants of the shipo\vn(M' ; 
 the ' accidents of navigation,' from which tlie shipowner exempts 
 lu'mself under an ordinary l7ill of hiding", do not include such losses. 
 Tiie result is that there is a large class of losses, in respect of which 
 the shijiper or owner of cargo has a double indenniity ; Ik.' may. if 
 he ])leases, claim from the shi])o\vner (himages for loss resulting 
 from the fault of a seaman, or he may claim that loss from his own 
 underwriter, as a loss directly caused by sea peril. W he takes the 
 latter course, his underwriter on payment succcimIs to his rights. 
 and may himself sue the shipowner. Now I shall ask practical 
 men to confirm what I am about to say from their own experience; 
 but so far as 1 have had opportunities for observing, I think I can 
 say with confidence that underwriters generally do not attach much 
 value to the right they have, after paying a loss of cargo, to recover 
 it back from the shipowner on the ground that the loss has arisen 
 through some neglect on the part of liis servants. AVhether it be 
 that the attempt to enforce such a right almost always leads to liti- 
 gation, or whether it be due to a feeling that the frequent enforcing 
 of such claims would drive shipowners to a change in the form of 
 their contracts ; whatever be the reason, the fact certainly is that 
 such claims are very rarely made. I have myself known many cases 
 in which such a claim might have been made, Avith very fair hopes 
 of success, but where it has not been attempted, or even seriously 
 thought of. 
 
 For these reasons I am inclined to believe that if the owners of 
 steamships would limit their demand in the manner I have sug- 
 gested — if they would agree to take upon themselves all liability 
 except for the accidents of navigation, on condition that for the 
 results of those accidents they should be exempted from liability, 
 even though the accident itself were brought about by the fault of 
 some one in their employ, all the difficulties and anomalies of the 
 present state of things would be removed ; and that this change, 
 whilst highly acceptable to the owners of merchandise, would en- 
 counter little or no resistance from underwriters, and would in the 
 long run be decidedly beneticial to the shipowners themselves. 
 
 1 have dealt, perhaps, at too great length on this point, because
 
 352 MARITIME LEGISLATION. 
 
 of its extreme importance ; but before I leave it, there is just one 
 objection which I wish to anticipate. 
 
 It may perhaps be urged that a change such as that proposed, 
 if it is likely to do so little hurt to insurer or shipowner, is not 
 likely to do much good to the owner of cargo. In fact, it may be 
 said there exists at this moment no violent dissatisfaction with the 
 present state of things. Anomalous and indefensible in theory 
 it may be, yet it has not worked so very badly. The owners of 
 steamships for the most part use their clauses rather as a safe- 
 guard against unreasonable claims, than as a ground for resist- 
 incr such claims, whether for bad stowage or for non-delivery of 
 goods, as they believe to be well founded ; in other words, they 
 do not really avail themselves to the full extent of the power 
 which these clauses give them. On the other hand, as regards 
 sailing-ships, the insurers of cargo do not enforce, to anything like 
 the full extent, the terrible liabilities to which the law exposes the 
 shipowner. They use their power as a menace, put in force only 
 in extreme cases. This being so, why disturb a state of things 
 against which there is as yet no great outcry ? 
 
 To this the answer surely should, be : the uncertainty, both to 
 the merchant and the shipowner, of a state of things which leaves 
 either to the clemency or forbearance of some one else, is in itself 
 a great evil ; it operates, so far as it goes, as a discouragement 
 to maritime adventure ; and if, as appears to be the case, this 
 uncertainty and this discouragement can be removed by adding a 
 few more words to the printed form of a bill of lading, there is 
 surely no valid reason why the alteration should not be made. 
 
 I would suggest, then, for steamers and for sailing-ships, some 
 such form as this : ' Owners not responsible for the accidents of 
 navigation, whether occasioned by the fault or neglect of those in 
 their employ, or otherwise.' 
 
 Having now occupied your time more than enough, I propose 
 only, in as few words as possible, to enumerate one or two other 
 principal changes or additional clauses which occur to me as 
 desirable, if we are to have a common form of bill of lading such 
 as may serve for the basis of ;m international law of Affreightment. 
 
 Some fuller specification ol' ihe accidents of na\-igation, par-
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 353 
 
 ticularly in the case of steanishipg, appears to me desirable. 
 ' Fire ' should be mentioned by name. The bursting of boilers, and 
 the breakage of screw-sliafts, are accidents, from the effects of which 
 the shipowner should bo protected, notwithstanding that either of 
 these occurrences are often attributable either to negligence or wear 
 and tear on some previous voyage, which might legally be construed 
 into unseaworthiness on the voyage in question. These, therefore, 
 should be excepted by name. Very probably other accidents of a 
 like nature may be suggested in the course of our discussions ; 
 these, however, are all that at the moment occur to me. It must 
 be remembered, that, without any express words, when goods are 
 shipped in a steamer, ' accidents of navigation ' cover all incidents 
 of steam navigation, except such as result from unseaworthiness or 
 fault of the shipowner's servants. 
 
 Power to tranship the goods, even without necessity arising 
 from sea-peril, is frequently reserved by the owners of steamships 
 in certain trades. That is a matter of detail, as to which unifor- 
 mity is not requisite or even particularly desirable. But when 
 such power is intended to be reserved, this must be done by express 
 words. 
 
 Careful provision should be made, by an express clause, for the 
 several cases in which the voyage is necessarily broken off in the 
 middle. This raises the whole question of j>yo rata freight, and 
 the proper wording of a clause to deal with it will require much 
 consideration. Concerning this, I do not at present propose to go 
 further than to suggest that the framing of such a clause might 
 with advantage be referred to a special committee. The basis of 
 it I take to be that, if the ship is disabled from carrying the 
 goods to their destination, the shipowner is to be at liberty to earn 
 his freight by sending on the goods at his own expense in another 
 bottom. If the goods are by sea-peril rendered unfit to be carried 
 all the way, no freight is to be due. This is apparently the result 
 of our delil)erations thus far. I may point out, however, that the 
 latter of these two rules would occasionally lead to most inequitable 
 results. A cargo of coals, for example, though incapable (e.g. 
 from being wet and heated) of being carried all the way to its des- 
 tination, may be sold at the intcrimdiati' port at double or treble 
 
 A A
 
 354 MARITIME LEGISLATION. 
 
 its original cost; and it certainly appears inequitable that this 
 enhanced value, given to it by the transit, should be taken by the 
 merchant without any payment of freight to the shipowner. 
 
 Closely connected with this are two questions, which I believe 
 our Association have already discussed, viz. When goods are 
 damaged by sea-peril, so as to be rendered less valuable, ought 
 there to be a proportionate reduction in the freight on them ? — a 
 question which I believe we answer in the negative ; and. When 
 goods are thus damaged to such an extent as not to be worth so 
 much as the freight on them, ought the deficit to be reclaimable 
 from the shipper? — which also, I believe, we answer in the negative. 
 It would probably be advisable that both these conclusions should 
 be expressed on the face of our bill of lading. 
 
 On the complicated subject of General Average, we already 
 know how to secure a practical unifonnity, namely, by the insertion 
 of the York-Antwerp-Rule clause. It would be still better if we 
 could have a York-Antwerp ' Code.' The time has come, I think, 
 when we are ripe for an agi'eed definition of the principle of 
 General Average. Some few points not touched on by the York- 
 Antwerp Rules ought to be added. The rule as to voluntary 
 stranding, which was somewhat hastily accepted at Antwei-p almost 
 Avithout discussion, needs to be reconsidered. As it stands, it 
 appears to me almost the only blemish in these rules. I should 
 like to see a more rational rule of practice substituted for the old 
 deduction of one-third, particularly as regards iron ships and repairs 
 at a port of refuge where the cost greatly exceeds the cost in the 
 home port. Such a code would be the completion of the work 
 done at Antwerp — work which this Association may look back to 
 with some reasonable pride. 
 
 Here, then, is the outline — a very crude and imperfect one — 
 of the international bill of lading which the sp.ecial committee 
 invite you to construct. It is probable that at our present meeting 
 we shall not get further, in any case, than the appointment of a 
 committee, authorised to consult with the accredited representatives 
 of shipowners and merchants in the several countries, and to frame 
 ill.' (Inifl of u bill of lading, to be brought before you for adoption, 
 correction, or rejection, as the case may be, on some future occasion.
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 355 
 
 The appointment of such a committeo, should this meet with your 
 approval, will have been an important step towards the object we 
 have in view. 
 
 On the conclusion of the reading of Mr. Lowndes's treatise, Sir 
 Travehs Twiss moved the following resolution : ' That the execu- 
 tive council be empowered to nominate a committee to report at 
 the next conference upon the subject of Mr. Richard Lowndes's 
 paper, with power to appoint sub-committees, and directions to 
 print and circulate the said paper.' 
 
 I seconded this motion. 
 
 On Thursday, August 18, 1881, the conference again met, when 
 Mr. II. H. Meier, the President, who was in the chair, read out 
 the names of the gentlemen who had been added to the Committee 
 on the International Law of Affreiglitment, namely : — 
 
 Theodore Engels, of Antwerp. 
 H. H. Meie;r, of Bremen. 
 M. De Courcy, of Paris, 
 Professor Asser, of Amsterdam. 
 Mr. Axel Wixge, of Christiania. 
 Judge C. A.^Peabody, of New York. 
 
 On the reassembling of the conference on Friday, August 19, 
 1881, Sir Travers Twiss, in the chair, announced that Mr. Richard 
 Lowndes had kindly promised to form a committee in Liverpool on 
 the important question of the law of Bills of Lading, and moved 
 that ^Ir. Richard Lowndes, of Liverpool, be appointed honorary 
 secretary of the local committee in Liverpool on the International 
 Law of Bills of Lading,' with directions to form a committee, and 
 to report to the executive council of the Association. 
 
 In supporting this motion, Dr. Syndicus Marcus said that it 
 was very desirable that local committees should be formed to work 
 up any subject which it was agreed to adopt as a question for con- 
 sideration. The motion was adopted. 
 
 The following twelvemonths were utilised to ventilate 
 the subject in all directions, as will be seen from the
 
 356 MARITIME LEGISLATION. 
 
 following very full report of the proceedings of the As- 
 sociation's tenth conference held in the Town Hall of the 
 city of Liverpool on August 8, 1882, under the presidency 
 of the late Lord O'Hagan, who, as will be recollected, pre- 
 sided at the Antwerp Conference of 1877, where the York 
 and Antwerp General Average Eules were promulgated. 
 
 I must here express my regret that the attendance of 
 shorthand-writers during these proceedings had not been 
 secured, and therefore only a few of the very acute argu- 
 ments used during the discussions by the various speakers 
 have been recorded. 
 
 The proceedings were opened by Dr. Chaeles Stubbs, 
 of London, honorary secretary of the Committee on an 
 International Law of AfTreightment and Bills of Lading, 
 reading the following report : — 
 
 In accordance with the resolution passed at the Cologne Con- 
 feivnce of tliis Association, that a committee should be nominated 
 by the executive council to consider and report on the subject of 
 tlie codification of international law, specially with regard to the 
 law of Affreightment and Bills of Lading, the following committee 
 has during the past year been appointed : — 
 
 Dk. Wendt, London, Chairman. 
 
 'Mil. KiciiAKD Lowndes, Liverpool, Beputij Chairman. 
 
 ^\h. Jacoh Ahleks, Hamburg. 
 
 I^j{OFf:ssoR AssEK, Councillor of State, Amsterdam. 
 
 Mu. H. J. Atkinson, London and Hull. 
 
 ]\Ii<. L. li. JJaily, Liverpool. 
 
 Mk. T. C. Engels, Chairman of the ]5i'lgiaii Lloyd, Antwerp. 
 
 Mr. H. W. Gaih, LiveqDool. 
 
 Mu. John Clover, London. 
 
 Dr. Ci'TSCiiow, Jhmiburg. 
 
 Col. Hill, C.B., President of the Chamber of Shipping of the 
 
 Liiitcd Kingdom, Cardiff. 
 Mi;. I'iiii.ii' IIiksciifkli*. lionddii.
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 357 
 
 Mr. E. Hogg, Chairman of the Association of Average Adjusters, 
 London. 
 
 Mr. T. H. Ismay, Liverpool. 
 
 Mr. AV. a. Jevons, LiveiiJool. 
 
 Mr. W. H. Jones, Liverpool. 
 
 Mr. S. Lowther, Lelfast. 
 
 Mr. H. H. Meier, Chairman of the North Cerman Lloyd, 
 Bremen. 
 
 Mr. Ole MOller, London. 
 
 Dr. W. L. p. a. Molengraaff, Amsterdam. 
 
 The Hon. Judge Ch. A. Peabody, New York. 
 
 Mr. Jame.s Poole, Liverpool. 
 
 Mr. J. H. Powell, London. 
 
 Mr. p. H. Ratiihone, Liverpool. 
 
 Dr. Rahusen, Amsterdam. 
 
 Mr. H. REmHOLDj Calcutta. 
 
 Mr. John Riley, London. 
 
 Dr. Sieveking, President of the Court of Appeal, Hamburg. 
 
 Mr. Ulrich, Secretary-General of the International Under- 
 writers' Association, Berlin. 
 
 Dr. Voigt, Hamburg. 
 
 Mr. Axel Winge, Christiania ; and 
 
 Dr. Charles Stubbs, London, Hon. Sec. 
 
 It has been considered inexpedient, if not impossible, to present 
 a reasoned report, signed by or on behalf of your committee so 
 constituted, on the subject assigned to them. I have, however, 
 been directed to prepare, for the information of the members of 
 the Association at this conference, a report on the proceedings 
 of your committee since the last conference, and the result 
 thereof. 
 
 Communications have been addressed to a large number of 
 Chambers of Commerce, associations, leading merchants, shipowners, 
 lawyers, and others in England, America, and the continent of 
 Europe, directing their attention to copies of the papers on bills of 
 lading laid before this Association last year, with the request that 
 they would form local committees in their respective towns, discusfc
 
 858 MARITIME LEGISLATION. 
 
 the subject, aud transmit to your committee tlieir individual or 
 collective opinions on the same, and, if possible, come, or send 
 representatives, to take part in the intended deliberations at this 
 conference. In response to the request of your committee, local 
 committees have been formed at Liverpool, Newcastle-on-Tyne, 
 Hull, Sunderland, North Shields, .Hamburg, Amsterdam and 
 Rotterdam, Antwerp, and New York. 
 
 The Liverjiool committee, a large and influential body of repre- 
 sentatives of Shipowners', Merchants', and Underwriters' Associa- 
 tions and Chambers of Commerce, held many meetings, and, after 
 much discussion, agreed with practical unanimity to two drafts of 
 a common form of bill of lading, one for steam vessels and one for 
 sailing vessels, subject, however, to revision. 
 
 These drafts have also been considered by the members of your 
 committee, and widely circulated and submitted to the other local 
 committees, with a view of obtaining opinions as to whether they 
 would meet the views of the various mercantile communities, 
 without or with any alterations. 
 
 The letters, accompanied by the documents referred to, have 
 elicited a large number of ans\yers, together with some reasone 1 
 reports from the local committees. The general opinion appeared 
 to be in favour of the Liverpool drafts, the approval expressed 
 being, however, as was to be expected, qualified, some of the 
 clauses contained therein being disapproved of in some instances 
 and new clauses suggested in others. 
 
 The reports and suggestions referred to are here printed, and 
 may be seen therefore in the full report, 
 
 Mr. RicnAHD Lowndes, President of the Liverpool Chamber of 
 Commerce, as deputy chairman of this committee and chairman of 
 the Liverpool committee, then introduced the discussion on this 
 subject. He concluded by moving the adoption of the report of 
 the Liverpool committee introducing the draft form of bill of 
 lading. 
 
 'Jliis report was as follows : — 
 
 The ' Association for the Reform and Codification of the Law 
 of Nations ' luiviiig, in its meeting in Cologne last year, a])proved
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 359 
 
 of the proposal made to endeavour to establish a commoii form of 
 bill of ladin<^, so framed as to promote uniformity in the law of 
 Affreightment throughout the mercantile world ; and having ap- 
 pointed a special committee to organise this work in the several 
 countries ; an invitation was issued, under the sanction of the 
 central committee, to the several shipowning and mercantile 
 associations of Liverpool, to send two representatives from each 
 association in order to constitute a local committee, for the purpose 
 of taking the subject into consideration, and, if possible, framing a 
 bill of lading adapted to the end here proposed. 
 
 In response to this invitation, each of the associations sent 
 two representatives. The Shipowners' Association appointed Mr. 
 Donald Kennedy and Mr. John llankin ; the Steamship Owners' 
 Association appointed Mr. James Spence and Mr. W. H. Wilson ; 
 the Chamber of Commerce appointed Mr. Richard Lowndes and 
 Mr. Henry Coke ; the American Chamber of Coinmerce appointed 
 Mr. W. D. Heyne and Mr. B. F. Babcock ; the East India and China 
 Section of the Chamber of Commerce appointed Mr. Robert Glad- 
 stone and Mr. Magnus Mowat ; the Iron and General Metal Trade 
 Section appointed Mr. Alexander Sparrow and Mr. George Rae 
 Anderson ; the Cotton Section appointed Mr. B. F. Babcock and 
 Mr. Bancroft Cooke ; the Underwriters' Association appointed Mr. 
 C. B. Vallance and Mr. S. Cross ; and the Liverpool Law Society, 
 who were asked to take part in order to advise the committee on 
 points of law and to assist in the framing of clauses, appointed 
 Mr. H. W. Collins and Mr. A. Bright. These gentlemen, together 
 with the following members of the central committee, who took 
 part ex officio— viz. Mr. L. R. Baily, Mr. H. W. Gair, Mr. T. H. 
 Ismay, Mr. W. A. Jevons, Mr. W. H. Jones, Mr. James Poole, 
 and Mr. P. H. Rathbone — constituted the Liverpool Bill of Lading 
 Committee. 
 
 This committee, after holding seventeen meetings, now closes 
 its proceedings, at all events until after the approaching annual 
 meeting of the Association on August 8 next, with the followiug 
 report : — 
 
 The committee are practically unanimous on the following 
 points: —
 
 3G0 MAIJITIME LEGISLATION. 
 
 The present state of things, under wliich almost every steam- 
 ship company has a form of bill of lading of its own, and there is 
 uncertainty as to the effect of the special clauses constantly intro- 
 duced, is inconvenient and objectionable. 
 
 There is no sufficient reason why the liability of a steamship 
 owner should differ from that of the owner of a sailing-ship, in 
 such matters as damage resulting from improper stowage, or as to 
 loss occasioned by collision or other accident of navigation, brought 
 about through some fault or error of judgment on the part of the 
 master or crew. 
 
 If a common form of bill of lading can be drawn up, such as 
 would fairly meet the reasonable requirements of the shipowner on 
 the one hand, and of the owners and insurers of the cargo on the 
 other, its general adoption would be a great convenience to mer- 
 cantile men. 
 
 Admitting that there may be reasons for special clauses in 
 particular trades, and also admitting the principle of freedom of 
 contract, it still would be a great advantage to have any special 
 clauses printed or written in such a manner as to be easily dis- 
 tinguishable from the common form ; as, for instance, in the margin 
 of the bill of lading, and not in the body of it. The contracting 
 parties could then readily direct their particular attention to these 
 special clauses, and would know what they were asked to agree to. 
 
 The principle of the common form of bill of lading should be 
 this : that the shipowner, whether by steam or sailing ship, should 
 be liable for the faults of his servants in all matters relating, to the 
 ordinary course of the voyage, such as the stowage and right 
 delivery of the cargo, and other matters of this kind ; but, on the 
 other hand, the shipowner should be exempt from liability for 
 everything which comes under the head of ' accidents of navigation,' 
 even though the loss from these may be indirectlj^ attributable to 
 some fault or neglect of the crew. 
 
 It is desirable that the common form of bill of lading should 
 lay down clear and precise rules on every important point as to 
 wliicli the laws of different countries with regard to Affreightment 
 (lifl'er from one another, in order that the settlement between 
 HJiipowucr and cargo-owner may be as nearly as possible the
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 8G1 
 
 same, iu whatever couutry that settlement may have to be en- 
 forced. 
 
 A common form of bill of lading, based on these principles, 
 was, after much discussion, agreed to, for the most part unanimously 
 by this committee, subject, however, to revision, after being sub- 
 mitted by the representative members to the several associations 
 who had appointed them. It was arranged that, after an interval 
 allowed for that purpose, any suggestions that might be made by 
 the associatious should be taken in order. 
 
 The first of these happened to be the Shipowners' Association. 
 Their suggestions, which referred only to matters of detail, were 
 discussed and for the most part adopted. 
 
 At this stage of our proceedings a letter was received from the 
 secretary of the Steamship Owners' Association, which is printed 
 below. On its being read, the representatives of this association 
 announced to the committee that they considered this letter as 
 putting an end to their representative functions, and that they 
 could thenceforth only speak as individuals. 
 
 At the following meeting of the committee the conclusion was 
 come to that, in view of the action thus taken by the Steamship 
 Owners' Association, it was not desirable to proceed further at 
 present in the discussion of the bill of lading, especially as there 
 would be ample opportunity of doing so at the approaching 
 meeting of the Association, on August 8 next. It was therefore 
 resolved to make no further alterations in the form which had been 
 framed by the committee up to that point, and to recommend it as 
 a basis for discussion at that meeting. 
 
 In doing so, the committee desire to add the following remarks, 
 in explanation of some of the proposed clauses : — 
 
 1. The clause giving liberty ' to deviate so far as reasonably 
 necessary for saving life or property ' is inserted to meet what is 
 thought to be the mischievous effect of the recent decision in the 
 case of Scaramanga v. Stamp, which subjects the shipowner to the 
 highly penal consequences of a ' deviation,' whenever the master 
 goes out of the direct course, or delays the ship, in order to tow 
 and assist a ship in distress, for the sake of saving property, as 
 distinguished from the saving of life. As a consequence of this
 
 3G2 MAEITIME LEGISLATION. 
 
 decision, it is well known that peremptory orders are given by 
 the owners of many steamers to their captains, on no account to 
 attempt the towing or assisting of disabled ships, but to take off 
 the crews and passengers and abandon the ships. Another natural 
 consequence of this decision is a material increase in the sums 
 awarded for salvage services. These evils can only be met by a 
 clause in the bill of lading, such as that here proposed. 
 
 2. The term ' York-Antwerp Code ' is used, in preference to 
 York- Antwerp Rules, in the hope that, by the time the new bill of 
 lading comes into general use, those rules, now coming more and 
 more to be adopted, will be amended and completed, so as to con- 
 stitute a short code of General Average. 
 
 3. The provisions with regard to pro rata or distance freight 
 have been framed, after much consideration, in the hope that they 
 may be accepted in other countries, as well as our own, as the 
 basis of an equitable settlement of this much-disputed question. 
 That our present English and American law on this subject, 
 which differs from that of almost every other country, does not 
 altogether work well, is shown in a striking manner when cargoes 
 of small cost, such as coal or salt, have been carried for a part of 
 the voyage originally intended, and then, owing to sea-peril pre- 
 venting the completion of the voyage, are sold for perhaps double 
 or treble their cost. It is plainly unreasonable that the ship- 
 owner, by whose expenditure of capital this enhanced value has 
 been created, should receive nothing in return, while the owner 
 of the cargo makes a gain far beyond anything he could have 
 expected had the voyage been completed in the ordinary way. 
 On the other hand, when the voyage is not performed, and the 
 cargo has received no advantage from a partial carriage, the 
 English and American rule, of giving no freight, except as the 
 result of a new bargain, seems to be reasonable enough. 
 
 •1. The clause giving liberty to the shipowner to earn his 
 Acight by forwarding the goods in another bottom, when the 
 original ship has been disabled, notwithstanding that the ship 
 jri;iy have been abandoned at sea by the crew, and afterwards 
 ri^covered by salvors, is inserted to meet the recent decision in 
 the case of the ' Cito,' which determines that such an abandon-
 
 INTERNATIONAL LAW OF AFFREIGIITMENr. 803 
 
 raent totally puts an end to the contract of Affreightment, so that 
 the owner of the cargo may demand delivery of it, at any inter- 
 mediate port into which the ship has been carried by the salvors, 
 free of all charge for freight This inequitable result, it would 
 seem, can only be remedied by means of a special clause in the 
 contract. 
 
 In conclusion, the committee desire to record the special 
 obligations they are under to their legal members for the valu- 
 able time given and services rendered by them to this work, and 
 also to the representatives of the underwriting body fur the 
 readiness they have shown to fall in with any reasonable arrange- 
 ment that may be come to, with the object of protecting the 
 merchant, so far as practicable, as between the bill of lading and 
 
 the policy. 
 
 (Signed, by order of the committee) 
 
 Richard Lowndes, Chairman. 
 
 Liverpool : July 19, 1882. 
 
 ' COPY OF LETTER EEFERRED TO. 
 
 • Liveri)ool : June 19, 1882. , 
 * Dear Sir, — The form of bill of lading prepared by your com- 
 mittee has on two occasions been submitted to the various members 
 of this Association, and has had their careful consideration. It 
 has been found, however, that from the many trades which are 
 represented in the Association, each requiring different provisions, 
 applicable to its trade, it is impossible for the Association to agree 
 to the adoption of any general form of bill of lading. I am desired, 
 however, to state that the various members will give the provisions 
 of any bill of lading, which may be recommended by your commit- 
 tee, their most careful consideration. — Yours truly, 
 
 (Signed) ' Gray Hill, Sccretar>j. 
 * Richard Lowndes, Esq.' 
 
 Draft bill of lading presented by the Liverpool committee : — 
 
 ^ Shipped, in apparent good order and condition, by in 
 
 and upon the good steam ship called the now 
 
 * For the form as finally settled, see p. 379.
 
 304 MARITIME LEGISLATION. 
 
 lying in the port of and bound for with 
 
 liberty to call at any ports, in any order, to sail without pilots, and 
 to tow and assist vessels in distress, and to deviate so far as rea- 
 sonably necessary for saving life or property ; also with liberty, in 
 case the ship shall put into a port of refuge for repair, to tranship 
 the goods to their destination by any other steamer (vessel) ; and 
 with liberty to convey goods in lighters to and from the ship, at 
 shipper's risk. Such lighterage to be at ship's expense, except that 
 if the cargo is necessarily landed in lighters, the ship beiug unable 
 to reach the port of destination, the cost of such lighterage shall 
 fall on the cargo. 
 
 being marked and numbered as per margin ; and to be 
 delivered in the like good order and condition at the aforesaid port 
 oi 
 
 The act of God, fire, barratry of the master and mariners, enemies, pirates 
 and thieves, arrest and restraint of princes, rnlers and people, coUisions, 
 stranding, and other accidents of navigation, excepted, even when occasioned by 
 the negHgence, default, or error in judgment of the pUot, master, mariners, or 
 other servants of the shipowners. 
 
 Ship not answerable for losses through exj)losion, bursting of boilers, 
 breakage of shafts, or any latent defect in the machinery or hull, not result- 
 ing from want of due diligence by the owners of the ship, or any of them, or 
 by the ship's husband or manager ; nor for decay, putrefaction, rust, sweat, 
 change of character, di-ainage, or leakage, arising from the nature of the goods 
 shipped or the insufficiency of the packages ; nor for any damage or loss 
 occasioned by the prolongation of the voyage ; nor for obliteration or absence 
 of marks, numbers, addresses, or descriptions of goods shipped. 
 
 unto 5 or to his or their assigns, 
 
 freight, primage, and charges for the said goods, as per margin, 
 to be paid by . Freight to be paid in 
 
 cash, without discount ; at the rate of exchange for bankers' bills 
 at sight, current on the day of the ship's entry inwards at the 
 custom-house. General Average payable according to York- 
 Antwerp Code. 
 
 Li witness whereof, the master, or agent, of the said ship hath 
 :ifTi lined to bills of lading, all of this tenor and date, 
 
 llif one of wliich bills being accomplished, the others to stand void.
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 3Go 
 
 1. Quality marks, if any, to be of the same size as and contiguous to the 
 leading marks ; and if inserted in the shipping notes accepted by the mate, 
 the master is bound to sign bills of lading conformable thereto. 
 
 2. Ship not liable for breakage of glass, earthenware, or china. 
 
 3. Not accountable for goods of any description which are above the value 
 of 1001. per package, unless the value be herein expressed and a special agree- 
 ment made ; nor for gold, silver, bullion, specie, documents, jewellery, pictures, 
 embroideries, or works of art, silks, furs, china, watches, or clocks, unless bills 
 of lading are signed therefor, with the value therein expressed, and a special 
 agreement be made. 
 
 4. Shippers accountable for any loss or damage to ship or cargo caused 
 by inflammable, explosive, or dangerous goods, shipped without full disclosure 
 of their nature, whether such shipper shall have been aware of it or not, and 
 whether such shipper be principal or agent : such goods may be thro'vn over- 
 board or destroyed by the master or owner of the ship at any time without 
 compensation. 
 
 5. All fines or damages, which the ship or cargo may incur or suffer by 
 reason of incorrect or insufficient marking of packages or description of their 
 contents, shall be paid by the shipper or consignee, and the ship shall have a 
 lien on the goods of such shipper or consignee for the amount thereof. 
 
 6. Goods delivered to the ship, whilst on quay awaiting shipment, to be at 
 shipjjer's risk as regards all the perils excepted in this bill of lading. 
 
 7. Goods once shipped cannot be taken away by the shipjier except upon 
 payment of full freight, together with the expenses of landing them, and 
 compensation for any damages sustained by the owners through such taking 
 away. 
 
 8. In case the ship shall be prevented from reaching her destination by 
 quarantine, blockade, ice, or the hostile act of any power, the master or 
 owners may discharge the goods into any depot or lazaretto, or at any near 
 available port ; all expenses thereby incm-red upon the goods to be borne by 
 the owners or receivers thereof. 
 
 9. Ship to have a lien on all goods for papnent of freight and charges, 
 including back freight, forwarding charges, and charges for carriage to port 
 of shipment, whether payable in advance or not. 
 
 10. If the ship is able to carry the goods to their destination, but the 
 goods, by reason of damage sustained or of their own nature, are not fit to be 
 carried all the way, and if such goods have received an enhancement of value 
 by reason of their partial carriage, the ship shall be entitled to a pro rata 
 freight in proportion to the distance performed, which freight is in no case to 
 exceed the amount of such enhancement of value. Pro rata fi-eight is ad- 
 missible in no other case than that dealt with in the preeedmg sentence, 
 miless there be an acceptance of the goods by the shipper or owner of the 
 goods. 
 
 11. AVhen the goods are fit to be carried to their destination, but the ship 
 is unable to carry them, the shipowner may earn full fi-eight by sending the 
 goods to their destination at his own expense in another bottom : this right 
 is not affected bj' an abandomnent of the ship by her crew, or to the under- 
 writers: and the ship is to be, for this purpose, deemed unable to carrj' the 
 goods to their destination, if she either caimot be repaired at all, or cannot 
 be repiiircd except at an expense exceeding lier value when repaired.
 
 3G0 MARITIME LEGISLATION. 
 
 12. Full freight is due on damaged goods ; l)ut the consignee is at liberty 
 to abandon his entire consignment for the freight on it, provided he elects to 
 do so before taking delivery. 
 
 13. No freight is due on any increase in bulk or weight caused by the 
 absorption of water during the voyage. 
 
 14. Freight which by the terms of the bill of lading is made payable by 
 the consionee cannot be demanded from the shipper after the master has 
 parted with his lien on the goods. 
 
 15. The goods, if not taken by the consignee immediately on landing, or 
 within such further time as is provided by the regulations of the port of 
 discharge, may be stored by the master, at the consignee's expense and risk. 
 
 16. In the event of claims for short delivery, when the ship reaches her 
 destination, the price to be the market price at the port of destination on the 
 day of the ship's reporting at the custom-house, less all charges saved. 
 
 Notice. — In accepting this bill of lading, tlie owner of the 
 goods and the shipper expressly accept and agree to all its stipu- 
 lations and conditions, whether written or printod. 
 
 Dated in Liverpool, this day of 188 . 
 
 Weight and contents unknown. 
 
 {The words X)rinte(l in italics are to be omitted in the case of sailing ships.) 
 
 ^Fr. Atkinson, of Hull, as representative of the Chamber of 
 Shipping of London, and of the Hull Chamber of Commerce, 
 seconded the resolution. 
 
 A discussion ensued, in which Dr. Wendt, Mr. James Samuel- 
 SON, ]Mr. Shotton, and others took part, in the course of which 
 doubts were expressed as to the meaning to be attached to the 
 resolution ; but the President having intimated that, if it were 
 passed, he should rule that members would not be consequently 
 precluded from raising any question on the subject, the resolution 
 was imanimously adopted. 
 
 Mr. Lowndes next moved : ' That there should be a common 
 form of bill of lading, and, admitting that there may be reasons 
 for spfcial clauses in particular trades, and iilso admitting the 
 ]»riiifi|)l(' of frcodom of confraft, it would be convenient that any 
 s])f'cial or additional clauses should be .printed or written in such 
 manner as to be easily distinguishable from the common form.' 
 Adding tliat this would imjily tlie principle of a common form of 
 liill of hiding, witlioui liainpcring the freedom of contract. The
 
 ' INTERNATIONAL LAW OF AFFREIGHTMENT. 307 
 
 common form would stand like the Lloyd's form of a policy of 
 insurance, as a basis which all knew and understood. Then if the 
 parties wished to vary the common form in any way, as in certain 
 trades, or on particular occasions it might be necessary to do, such 
 variation would be stated in the margin. This was the extent to 
 which he, and the Chamber he represented, advocated a common 
 form. 
 
 Mr. John Glover, of London, seconded the resolution. 
 
 Mr. Laurence R. Baily, of Liverpool, objected, observing that 
 until it be seen what bill of lading is approved of by the conference, 
 it would be premature to determine whether its adoption would be 
 advisable. 
 
 Mr. Shotton, of Liverpool, supported the resolution. 
 
 Mr. Cornelius Walford, of London, said that the bill of 
 lading which was in ordinary use was the same as that used two 
 thousand years ago. There were not thirty words different in the 
 bill of lading which Cicero pleaded upon and that which was in 
 use at the present day. A common bill of lading for international 
 purposes he believed to be an impossibility, although he wished it 
 were otherwise. 
 
 Mr. Gray Hill, of Liverpool, remarked that he did not see 
 any probability of so altering the law as it now existed as to lead 
 to any material change. There was a skeleton bill of lading in 
 existence at the present time ; the resolution was therefore futile. 
 
 Mr. Wp:stgarth, of Melbourne, thought that, as a national 
 assembly, it was their duty to aim at an international bill of lading, 
 and he supported the resolution. 
 
 The resolution was then carried nem. con. 
 
 Mr. Richard Lowndes next moved the adoption of the follow- 
 ing clause in the report of the Liverpool committee : ' That the 
 principle of the common form of bill of lading should be this — 
 that the shipowner, whether by steam or sailing ship, should be 
 liable for the faults of his servants in all matters relating to the 
 ordinary course of the voyage, such as the stowage and right de- 
 livery of the cargo, and other matters of this kind ; but, on the 
 other hand, the shipowner should be exempt from liability for 
 evervthing which comes under the head of ' accidents of navisration.
 
 .368 MAKITIME LEGISLATION 
 
 even tkougli the loss from these may be indirectly attributable to 
 some fault or neglect of the crew.' 
 
 Mr. Atklxson, of London and Hull, seconded the resolution. 
 
 I then moved as an amendment : ' That the words, " even 
 though the loss from these may be indirectly attributable to some 
 fault or neglect of the crew," be omitted.' 
 
 Mr. James Samuelsox, of Liverpool, seconded the amendment. 
 He held that the shipowner should have such men in his employ- 
 ment as were able to navigate his vessel and look after the interests 
 confided to them. He also objected to the motion, because it 
 seemed to him to be indirectly reviving a principle which it had 
 been sought to abrogate by the Employers' Liability Act. It 
 would practically make the masters and navigators of vessels care- 
 less in the performance of their duties ; and although by some 
 arrangement the loss, so far as the goods were concerned, might 
 not fall upon the shipper or receiver, it would be indirectly, and in 
 a very marked manner, endangering the lives of passengers and 
 others. He thought the recommendations of the Liverpool com- 
 mittee would have been of more value if there had been attached 
 to it the opinion of the General Brokers' Association, who in reality, 
 to a very large extent, represented the shippers and receivers of 
 goods. 
 
 ^Ir. John Glover, of London, pointed out that shipowners were 
 not at liberty to select whom they liked to command and navigate 
 their vessels, but they were restricted to persons whose competency 
 was tested by Government examinations. It would be a puzzle to 
 him to find a bill of lading of any shipping line of importance in 
 which the clause contained in the resolution did not appear. One- 
 half or two-thirds of the companies which carried goods to and 
 from our shore, including the Peninsular and Oriental and Royal 
 Mail Steamship Companies, conveyed them on bills of lading 
 containing tins clause, and on public grounds they asked that that 
 which was already so general should be nuide universal. Repre- 
 senting the Shipowners' Society of London, he stated that their 
 reasons for desiring exemption from liability for the acts of their 
 crews were that the responsibility was not really theirs ; it had 
 oiilv lii'i'ii pill upon tlicjii l)v recent decisions in the (courts, and
 
 INTERNATIONAL LAW OF AFFRIOIGHT.MENT. 3B9 
 
 act by any diroct statute ; that they hal to b?ar very heavy risks 
 as shipowners iu tlie ordinary prosecution of tlicir business ; and, 
 aware of these risks, they took precautions against them, their 
 own vigilance being supplemented in every way by that of the 
 law. 
 
 The Hox. David 1)ii[)LKV I^'ikld, of New York, asked whether 
 they would or would not l)y this resolution change the law. If 
 they put goods upon the London and North- Western Railway in 
 Liverpool for London, and they wore lo?t through the fault of the 
 company's servants, would they not recover from the company ? 
 He thought all would agree that the proposal was not in accord- 
 ance with the law as affecting goods carried by land, and therefore 
 the effect of it would be to have a law for the sea different from 
 that for the land. In his opinion the common form should be : 
 ' Received certain goods to be carried to 
 
 .' Everything else should be contained, not in the 
 bill of lading, but in a Code of Law. He opposed the motion. 
 
 Mr. Coudert, of New York, thought it unwise to adopt the 
 resolution ; its effect would be to permit the existence of a liability 
 on land which was abolished on the sea, without any apparent 
 object except the convenience of the shipowner, and the philosophy 
 of this had not been explained. The general interest of the com- 
 mercial traveller should rather be considered, and the efforts of the 
 Association should be directed to finding out what would be most 
 conducive to diligence on the part of the shipowner. 
 
 Mr. Shotton, of North Shields, supported the motion. He 
 observed that there were such things as Board of Trade inquiries, 
 which by keeping a check on the crews of vessels, to that extent 
 safeguarded the interests of the merchant. Both merchant and 
 shipowner had insurable risks, and it was their duty to insure 
 them. 
 
 Mr. Engels, of Antwerp, held that it was practically impossible 
 to render a shipowner responsible for the faults of all his crew. 
 Some of the men had to be shipped at the last moment in the 
 place of others who had neglected to join, and there was no possi- 
 bility of examining their character and qualifications. 
 
 Mr. J. G. Alexander, of London, explained that the limitation 
 
 B B
 
 370 MARITIME LEGISLATION. 
 
 of liability of railway companies applied only to valnaLles, and not 
 to ordinary goods. 
 
 Mr. Donald Kennedy, of Liverpool, tlionglit that the ship- 
 owner, having provided a good ship, and, as far as he could judge, 
 a o-ood crew, had done his duty, and all the rest was a risk which 
 might fairly be covered by insurance, and he supported the 
 resolution. 
 
 Mr. Gray Hill, of Liverpool, said it struck him that there was a 
 most important point of difference between the land-carrier and the 
 carrier bv sea. The case of railway companies was not analogous 
 to that of shipowners. Why was it that an employer on land was 
 held responsible for the acts of his servants ? He took it that it 
 was partly because he selected his own servants, but still more 
 strongly because he had an opportunity of superintending the ser- 
 vant's acts and of dismissing him if he found he was acting care- 
 lessly. A railway company had the conduct of an engineer or 
 guard constantly under its supervision ; but a shipowner, having 
 done his best to prepare his ship for sea, and having selected the 
 best oflBcers and men he could get, had no means of communication 
 with her after she left Liverpool or any other port until she reached 
 her port of destination or of call. It was impossible for him to 
 superintend his servants, or to tell what they were doing. If they 
 were doino' wrong he had no means of knowing it, and no means 
 of dismissing them and putting proper persons in their places. 
 There was also another distinction between railway companies and 
 shipowners. A railway company had a monopoly. It had gone to 
 Parliament for compulsory powers to take land and houses for the 
 making of the railway, and Parliament had properly said it should 
 not have those powers unless it had certain liabilities. But the 
 shipowner had no monopoly. What was to prevent any number 
 f)f caro-o-owners, who thought the terms of the bill of lading were 
 to their disadvantage, from combining together and starting a line 
 of ships for themselves ? Or what was to ])r('V('nt other shipowners, 
 who were bidding for popularity and custom, from omitting the ob- 
 noxious conditions? ^riicrc was no moiio])oly in the matter. No- 
 l)o(ly was oljliged to travel or to send his goods by any ])articulnr 
 line or ship, and the matter adjusted it'^elf naturally according to
 
 INTERNATIONAL LAW OF AFFREIGHTMRNT. 371 
 
 the principles of free trade. Another reason why he opposed tlie 
 amendment was that he felt satisfied that if it were carried it would 
 lead to no practical esult, because, in order to establish a contract 
 which they were to recommend parties to adopt, they must sup- 
 pose that the parties were willing to adopt it ; and what inducement 
 was there for a shipowner — a steamsliip owner particularly — to 
 adopt a contract which was going to increase his liabilities very 
 greatly ? Tf the amendment were carried, there was an end to the 
 discussion. He supported the resolution. 
 
 Mr. G. a. Laws, speaking on behalf of the Newcastle ship- 
 owners, opposed the amendment. The responsibility, he said, for 
 human fjillibility, was divided by Mv. Lowndes between both sets 
 of underwriters ; it would be made by Dr. Wendt to rest entirely 
 on those of the shipowner. 
 
 Herr Meier, of Bremen, doubted whether anybody would own 
 ships if shipowners were to be made liable for losses arising from 
 the faults, and even errors of judgment, of their crews. The insur- 
 ance companies had to cover this risk for those who insured. He 
 supported the resolution. 
 
 After I had been heard in reply, 
 
 The amendment was put to the meeting by the Chairman and 
 negatived by a considerable majority. The resolution, beino- at 
 once put substantively, was carried by a similar majoritv. 
 
 The meeting then adjourned. 
 
 On the conference reassembling, tlie debate on the 
 proposed Liternational Bill of Lading was resumed. 
 
 Mr. Richard Lowndes suggested that Mr. Shotton's proposals 
 should be taken first, but, on Mr. Atkinson objecting to this 
 manner of proceeding, withdrew his suggestion. 
 
 Mr. Lowndes being then called upon by the Chairman, pro- 
 ceeded to read the draft bill of lading clause by clause. 
 
 The following amendments were moved : — 
 
 By :Mr. Atkinson : ' That the word " either " be inserted before 
 life, in the phrase " for saving life or property." '
 
 372 MARITDII' LEfJISLATION. 
 
 The amendment was secontled by Mk. Siiotton, but after a short 
 discussion was withdrawn. 
 
 Bv Dr. Stubbs : ' That no special clauses be inserted in the bill 
 of ladincr, but that all such clauses be inserted in a Code of Af- 
 freightraent instead of a bill of lading.' 
 
 Dr. Stubbs said that he moved the amendment as secretary of 
 the committee, and in accordance with the opinions expressed by 
 some of the foreign committees. 
 
 The President ruled this motion out of order in the present 
 stage of the proceedings. 
 
 By Mr. Gray Hill: 'That the words "the pui-pose of" be 
 inserted after the word " for," and before the word " saving," in the 
 phrase " necessary for saving life or property." ' 
 
 The amendment, being seconded b^^ Mr. Atkinson, was carried 
 unanimously. 
 
 By Mr. John Glover : ' That the words " so far as reasonably 
 necessary " be omitted.' 
 
 !Mr. Glover contended that the liberty to save life and property 
 should be an absolute liberty. 
 
 I seconded the amendment, remarking that a captain of a vessi^l 
 ought not to be put in a position of having to weigh in his mind 
 the question whether or not he would be justified in deviating from 
 his course to save life. 
 
 Mr. Walford supported the amendment. 
 
 Mr. Lowndes said the question had been very serioush" discussed 
 ]>y the committee, and there had been a good deal of argument on 
 l)oth sides, but, in the judgment of the committee, the balance was 
 in favour of retaining the cautionary words. 
 
 M\i. SiiOTTON was afraid that, if the words were retained, a cap- 
 tain of a steam or sailing ship would be very chary about deviating 
 from his course, even for the purpose of saving life, lest he might 
 be held lialjle for any loss that might unfortunately result. 
 
 Mi{. Westgartii su])ported the amendment. 
 
 Mj{. CoiDERT said it was a question whether a deviation for the 
 ■|)urpose of saving life could ever be unreasonable. If a captain had 
 lli;it |)iir|)os(' ill his iiiiiid in dc\i:iting from his course, his coiuliict 
 c-iinid not bf considci'cd iinrcasonaldc. Tlic woi'ds were therefore
 
 INTEKNATIONAL LAW OF AFFREIGIIT.MENT. ;57.J 
 
 sui'i)! usage, antl he thoui^'lit tliut wlierever tliey could strike out an 
 unnecessary word they should do so. 
 
 Mil. Coke thought it would be unreasonable for a ship of 5,000 
 tuns to deviate from its course for the purpose of saving a ship of 
 lifty tons, if the cargo of the larger ship would thereby be put in 
 danger ; but if the bill of lading gave the captain power to deviate 
 under any circumstances, his action could not be disputed. He 
 opposed the amendment. 
 
 Sir Travehs Twiss supported the amendment, remarking that 
 if the clause simply dealt with the saving of property the words 
 would be useful ; but, as it dealt also with the saving of life, they 
 would limit very much the discharge of the duties of humanity. 
 
 Mr. Atkinson also supported the amendment. 
 
 Mr. Sparrow, as one of the committee which hud drawn up 
 the bill of lading, protested against the elimination proposed, on 
 the ground that it would be holding out an inducement to captains 
 to go in for saving property at sea for salvage purposes, in the in- 
 terests of themselves and their owners, quite irrespective of the 
 owners of cargo committed to tlieir charge. No one could for a 
 moment dispute the reasonableness of a deviation for the purpose 
 of saving life, and there could therefore be no fear of life not being 
 saved if the clause stood as printed ; but if the words quoted were 
 struck out, there was very great reason to fear that the property 
 in the salvor's ship might be put to very great risk in attempts to 
 save other property merely for the purpose of obtaining salvage 
 for the benefit of the captain or owners of the deviating ship. 
 
 Mr. Gray Hill supported the amendment. 
 
 Mr. Wilson opposed, and ]\[r. Hodgkinson spoke in favour 
 of it. 
 
 The amendment, being put to the vote, was carried by a 
 majority of 1 1 ; 20 members voted for and 9 against it. 
 
 By ;Mr. Atkinson : ' That the words " considerable repairs " be 
 substituted for the word " repair." ' 
 
 This amendment was not seconded. 
 
 By Myself : ' That the words " also with liberty, in case the 
 ship shall put into a port of refuge for repair, to tranship the goods 
 to their destination by any other steamer (vessel) "' be omitted.'
 
 374 MARITIME LEGISLATION. 
 
 ]\Ir. Atkinson seconded the amendment, observing that in his 
 opinion the liberty proposed should only be given when consider- 
 able repairs were necessary, inasmuch as many cargoes deteriorated 
 in value by the number of times they were turned over. 
 
 Mr. Richard Lowndes, Mr. Engels, Mr. John Glover, and 
 Mr. Donald Kennedy opposed the amendment, and Mr. Baily 
 supported it, observing that he had known a master tranship 
 because he could get a better freight by so doing. 
 
 On being put to the vote, the amendment was negatived by 1 5 
 votes to 8. 
 
 By Mr. Baily : ' That the words " necessarily put into a port of 
 refuge, and such putting in will entail great delay and expense, 
 the master may " be inserted instead of the words " put into a port 
 of refuge for repair, to." ' 
 
 The amendment was seconded by Mr, Atkinson, and opposed 
 by Mr. Eichard Lowndes, and rejected by 18 votes to 5. 
 
 By Mr. Atkinson: 'That the words "if unavoidable" be 
 inserted after the words " to and from the ship." ' 
 
 This amendment was not seconded. 
 
 By Mr. Gray Hill : 'That the words "perils of the sea" be 
 inserted after the words " act of God." ' 
 
 llie amendment was seconded by Mr. John Glover, and carried 
 by 17 votes to !■. 
 
 By ^Ir. Baily : ' That the words " barratry of the master and 
 mariners" be omitted.' 
 
 Dr. Stubbs seconded the amendment, observing that the 
 word ' barratry ' conveyed entirely different meanings in diffennit 
 countries, and was therefore unsuitable for an international bill 
 of lading, 
 
 ^\r. Richard Lowndes and Mr. Walford opposed the ameuil- 
 ment, which was, on being put to the vote, negatived by 19 votes 
 to 3. 
 
 ]^y Jl i)(ii-; "\\'ai;i;i;n : ' Tliat ihc words " act of God " be struck 
 out, on the grounds that llie phrase was superfluous and irreverent.' 
 
 I'roeessor I'KABODV, ill seconding the amendment, said that 
 he did not like fo have the misfortunes and accidents of the sea 
 attcihutf'd to tlif Suprcjue J5eing.
 
 INTEiLNATlUNAL LAW OF AlTlJElGIlTMEiNT. :i7r, 
 
 Mk. Lowndes deprecated the iutroductioii of tlieoluyical 
 argument. 
 
 The Hon. David JJudlky Field tliought it was not a question 
 of theology, but of taste and reverence. He suggested the sub- 
 stitution of Ihe words '■"inevitable accident" or "superhuman 
 cause." 
 
 Mk. Westuaktii observed that to leave out the old phrase, 'the 
 act of God,' would be tantamount to a revolution. 
 
 ^Mk. Atkinson said there was no more irreverence in inserting 
 the words ' the act of God,' than in using the phrase ' so help me 
 God,' wliea people gave evidence. He objected most thoroughly 
 to omitting from the bill of lading words w hich had descended to 
 them as a relic of the piety of their forefathers. 
 
 Mil. Gkey Hill said the words had received a judicial inter- 
 pretation for many years, but ' superhuman cause ' would cover 
 them. 
 
 Mr. ColDERT thought the phrase should be retained as an 
 expression of reverence. 
 
 M. Clun'ET supported the rejection of the phrase, as being 
 completely useless. The words '■ casus furtuitus,' which were used 
 in the bills of lading in ancient Rome, appeared to him to be 
 sufficient for all species of bills of lading. If they inserted the 
 words ' the act of God,' they would be equally necessary in a 
 contract for the transport of goods by rail. 
 
 I remarked that no such words as ' the act of God ' appeared 
 in the German bill of lading. 
 
 The resolution was rejected by 27 votes to 12. 
 
 The conference then adjourned until two o'clock. 
 
 On reassembling, the consideration of the proposed bill of 
 lading was continued, and amendments were further moved as 
 follows : — 
 
 By Mk. Hodgkinson : ' That the word " crew " be substituted 
 for the word " mariners," in the phrase " barratry of the master 
 and mariners." ' 
 
 This was seconded by nie. and cairied by 8 votes to j. 
 
 By MvsELf ; • That the words ■' even when occasioned by the
 
 37(3 MAKlTLMi: LEGISLATION. 
 
 negligence, default, or error in judgment of the pilot, master, 
 mariners, or other servants of the shipowners," be omitted.' 
 
 Mr. Hoyne, of Chicago, seconded the amendment, which was 
 supported by Dk. Molengraaff, Mr. Coudert, Dr. Jacobsen, and 
 M. Clunet ; and opposed by Mr. Atkinson, Mr. John Glover, 
 Mr. Walford, Mr. Shotton, Mr. Richard Lowndes, and Mr. 
 
 HODGKEVSON. 
 
 After I had been heard in reply, the amendment was put to 
 the vote, and rejected by 22 votes to 7. 
 
 By Mr. Sparrow : ' That the following words be added after the 
 phrase " description of goods shipped " : " provided that no clause 
 in this bill of lading shall have the effect of relieving the ship 
 from liability for the right delivery of the cargo, or for damage 
 arising from improper stowage." ' 
 
 The amendment was seconded by Mr, Coke, but rejected by 
 21 votes to 5. 
 
 By Dr. Molengraaff: 'That the words "nor for losses or 
 deterioration arising from the nature " be substituted for the words 
 " nor for decay, putrefaction, rust, sweat, change of character, 
 drainage or leakage arising from the nature." ' 
 
 The amendment was not, however, seconded. 
 
 By Mr. John Glover : ' That the words " on delivery " be 
 inserted after the word " paid," in the phrase " as per margin, to 
 be paid by." ' 
 
 The amendment was seconded by Mr. Kennedy, and supported 
 by me, and carried unanimously. 
 
 J3y Dr. Tomklns : ' That the word " Rules " be substituted for 
 the word " Code," in the phrase " York- Antwerp Code." ' 
 
 Mr. William Hope seconded the amendment. Dk. Wendt 
 liaving spoken in support of, and Mr. Lowndes against it, it was 
 put to the vote and adopted, the numbers being 24 to 3. 
 
 By ]\Ii<. Siioiio.N : ' Tlial I he words '' if iu the United Kingdom 
 of Creat Britain and irclajid, l)iit if elsewhere," be inserted after 
 the words " wii h. lilt (lisc()imt."' ' 
 
 This was s<'i<iinle(| by iiie. lint, alter some discussion, rejected 
 bv 2'j votes to 2.
 
 INTERNATIONAL LAW OF Al'FltElGIlTMEXT. ^77 
 
 By Mk. Van KEfEN: 'That the words " or its equivalent" Lo 
 inserted after the words " in casli." ' 
 
 The amendment was seconded by Mr. Engels, but rejected, 
 8 members voting for it and 4- against. 
 
 By Mu. Atkinson : ' That the words " hath affirmed to three 
 bills of lading all of this tenor and date, drawn as first, second, 
 and third, the first of which bills being accomplished, the others 
 to stand void,*' be substituted for the words " hath affirmed U) 
 bills of lading, all of this tenor and date, the one of which bills 
 being accomplished, the others to stand void."' ' 
 
 Mr. John Glover having seconded the amendment, Mr. 
 Westgarth moved the insertion of a clause to the effect tliat there 
 should be ' certified copies of any number' of the bill of lading. 
 
 This proposal was, however, negatived by 11 votes to 4, and 
 Mr, Atkinson's amendment carried by 14 to 1. 
 
 A proposition having been made by Judge Warren, and 
 j^econded by Mr. Walford, to the effect that the position of the 
 word ' excepted,' in the earlier part of the bill of lading, should be 
 altered, Mr. Atkinson rose to order, and it was overruled by the 
 Chairman. 
 
 A discussion then arose as to whether the remaining clauses 
 should be proceeded with by the meeting, or should be referred 
 to a committee ; but it was decided to pi'oceed. 
 
 It was then moved by Mr. Sparrow : ' That the words " and 
 whether such shipper be principal or agent," in clause 4, be omitted.' 
 
 No member rising to second the amendment, it was not put to 
 the vote. 
 
 By Mr. Atkinson : ' That the words " as regards all the perils 
 excepted in this bill of lading," in clause 6, be omitted.' 
 
 Mr. Shotton seconded the amendment. 
 
 Mr. Lowndes arid Mr. Sparrow having spoken against it, and 
 Mr. Atkinson replied on the objections, it was put to the meeting 
 and rejected by 13 votes to 4. 
 
 By Mr. Atkinson: 'That the words '-or mob" be inserted 
 after the word " power," in clause 8. 
 
 The amendment, however, was not seconded. 
 
 Bv ^[r. CoiDEnT : • That the words ■■ a lien thereon "' be substi-
 
 378 MAKITLME LEGISLATION. 
 
 tuted for the words '• borue by the owners or receivers thereof," in 
 da use 8.' 
 
 M. Clunet seconded the amendment, but it was lost by 7 votes 
 to 4. 
 
 By Mr. Shottox : ' That tlie word " demurrage " be inserted 
 after the words " back freight," in clause 9.' 
 
 ^Ik. Exgels seconded the amendment, and it was carried by 9 
 votes to 4. 
 
 By Mr. Engels : ' That clause 10 be omitted.' 
 
 This was seconded by Mr. William Hope, and supported by 
 Dr. Molengraaff. Mr. Lowndes having been heard contra, and 
 Mr. Exgels in reply, it was put to the vote and negatived by 18 
 votes to 6. 
 
 By Mr. Atkinson : ' That the words " but the consignee is at 
 liberty to abandon his entire consignment for the freight on it, pro- 
 vided he elects to do so before taking delivery," in clause 12, be 
 omitted.' 
 
 Mr. Shotton seconded the amendment, and it was carried by 
 15 votes to 9. 
 
 By Mr. Atkinson : ' That clause 14 be omitted.' 
 
 This was seconded by Mr. Shotton, but rejected, 9 members 
 voting for and 12 against it. 
 
 By Mr. Hodgkinson : ' That the words " voluntarily aban- 
 doned ' be substituted for the words " parted with," in clause 
 11.' 
 
 ^1r. Shotton having seconded, and Mr. Coudert spoken against 
 the amendment, it was negatived by 13 votes to 5. 
 
 By ^lu. Gray Hill: 'That the words "to the extent of the 
 value of the lien " be inserted at the beginning of clause 14.' 
 
 The amendment having been seconded, was carried by 9 votes 
 to o. 
 
 By Sir Ti{avej{S Twiss : ' That the word " consignee " be sub- 
 stituted for the word "consignees " in the early part of clause 15.' 
 
 This was agreed to unanimously. 
 
 By ^I. Clunet : 'That the following paragi-aph be inserted 
 at IJif end of clause 15 : " Tiic master shall be entitled to recover 
 from tlie shipper the difference between tin' amount of friMght sti-
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. ;j79 
 
 pulutecl in the bill of lading and the proceeds of the goods, should 
 the consignee neglect or refuse to receive the same." ' 
 
 Tliis was seconded by Mr. Rouse, and supported by Mr. 
 COUDERT, and, Ix-iug put to the meeting, was carried by 17 votes 
 to 1. 
 
 By Mr. E^'GELS : ' That the words " at the expense and risk of 
 the owner of the goods " be substituted for the words " at the con- 
 signee's expense and risk,'" in clause 15.' 
 
 Mr. Coudert seconded the amendment, and it was carried 
 unanimously. 
 
 By Mr. Walford : ' That the word '• Liverpool " be omitted.' 
 
 This was agreed to unanimously. 
 
 By Mr. Atkinson : ' That the word " quality " be inserted after 
 the word " weight " in the phrase " weight and contents unknown." ' 
 
 The amendment was agreed to unanimously. 
 
 By Mr. Snape: ' That the words " within reasonable time," be 
 inserted after the word "expense," in clause 11.' 
 
 The amendment having been seconded by Dr. Tomkins, was 
 agreed to without voting. 
 
 Finally, it was moved by Mr. Shotton, and seconded by Mr. 
 Atkinson : ' That the draft bill of lading so amended be adopted 
 by this conference.' 
 
 The resolution was agreed to unanimously amid prolonged 
 applause. 
 
 The following is a copy of the bill of lading as adopted : — 
 
 Shipped, in apparent good order and condition, by in 
 
 and upon the good steam ship called the now lying in the 
 
 port of and bound for with liberty to call at any 
 
 ports, in any order, to sail without pilots, and to tow and assist 
 vessels in distress, and to deviate for the purpose of saving life or 
 property ; also with liberty, in case the ship shall put into a port of 
 refuge for repair, to tranship the goods to their destination by any 
 other steamer (vessel) ; and with liberty to convey goods in lighters 
 to and from the ship, at shipper's risk. Such lighterage to be 
 at ship's exponse. except that if the cargo is necessarily landed in
 
 380 MAKUl.ME LEGISLATION. 
 
 ligliters, tlie .sliip being unable to reach the port of destination, the 
 cost of such lighterage shall fall on the cargo 
 
 being marked and numbered as per margin ; and to ba delivered 
 in the like good order and condition at the aforesaid port of 
 
 The act of God, perils of the sea, fire, barratry of the master and crew, 
 enemies, pirates and thieves, arrest and restraint of princes, rulers, and 
 peoi^le, collisions, stranding, and other accidents of navigation, excepted, 
 even when occasioned by the negligence, default, or error in judgment of the 
 pilot, master, mariners, or other servants of the shipowners. 
 
 Ship not answerable for losses through cxidosion, hursting of boilers, 
 breakage of shafts, or any latent defect in the machinery or hull, not re- 
 sulting from want of due diligence by the owners of the ship or any of them, 
 or by the ship's husband or manager ; nor for decay, putrefaction, rust, 
 sweat, change of character, drainage, or leakage, arising from the nature of 
 the goods shipped or the insufliciency of the packages ; nor for any damage 
 or loss occasioned by the prolongation of the voyage ; nor for obliteration or 
 absence of marks, numbers, addresses, or descriptions of goods shipped. 
 
 unto or to his or their assigns, freight, primage and 
 
 charges for the said goods, as per margin, to be paid on delivery 
 by . Freight to be paid in cash, without discount, at 
 
 the rate of exchange for banker's bills at sight, current on the day 
 of the ship's entry inwards at the custom-house. General Average 
 payable according to York-Antwerp Rules. 
 
 In witness thereof, the master or agent of the said ship hath 
 aflirmed to three bills of lading, all of this tenor and date (drawn 
 as first, second, and third), the first of which bills being accom- 
 ])lished, the others to stand void. 
 
 1. Quality -marks, if any, to be of the same size as and contiguous to the 
 leading marks ; and if inserted in the shipping notes accepted by the mate, 
 the master is bound to sign bills of lading conformable thereto. 
 
 2. Ship not liable for breakage of glass, earthenware, or china. 
 
 y. Not accountable for goods of any description which are above llie value 
 of lOOL per package, milcss the value be herein expressed and a special 
 agreement made ; nor for gold, silver, bullion, specie, documents, jewellery, 
 pictures, embroideries, or works of art, silks, furs, china, watches, or clocks, 
 unless bills of lading are signed therefor, with tlie value therein expressed, 
 and a special agreement be made. 
 
 4. Shippers accountable for any loss or damage to ship or cargo caused 
 by inflammable, explosive, or dangerous goods, shipped without fuU disclosure 
 of their nature, whether such shipper shall have been aware of it or not, and 
 whether such shipper be principal or agent ; such goods may be thrown over-
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. ;181 
 
 board or destroyed l\v the master or owner of the sliii) at any time witliont 
 compensation. 
 
 5. All fines or damages whicli the sliip or cargo may incur or suffer Ijy 
 reason of incorrect or insufVicient marking of packages or description of their 
 contents, shall he paid by tlie sliipper or consignee, and the ship shall have 
 a lien on the goods of such shipper or consignee for the amount tliereof. 
 
 6. Goods delivered to the ship, whilst on quay awaiting sliipment, to 1)0 
 at shipper's risk as regards all the perils excepted in this bill of lading. 
 
 7. Goods once shipped cannot be taken away by the shipper except npon 
 payment of full fi-eight, together with the expenses of landing them, and 
 compensation for any damages sustained by the owners through such taking 
 away. 
 
 8. In case the ship shall be i)revented from reacliing her destination by 
 quarantine, blockade, ice, or the hostile act of any Power, the master or 
 owners may discharge the goods into any depot or lazaretto, or at any near 
 available port ; all expenses thereby ineuiTcd upon the goods to be borne by 
 the owners or receivers thereof. 
 
 9. Ship to have a lien on all goods for payment of freight and charges, 
 including back freight, demuiTage, forwarding charges, and charges for 
 carriage to port of shipment, whether payable in advance or not. 
 
 10. If the ship is able to carrj- the goods to their destination, but the goods, 
 by reason of damage sustained or of their own nature, are not fit to be carried 
 all the way, and if such goods have received an enhancement of value by 
 reason of their partial carriage, the ship shall be entitled to a jiro rata 
 freight in proportion to the distance performed, which freight is in no case 
 to exceed the amount of such enhancement of value. Pro rata freight is 
 admissible in no other case than that dealt with in the preceding sentence, 
 imless there be an acceptance of the goods by the shipper or owner of the 
 goods. 
 
 11. When the goods are fit to be carried to their destination, but the ship 
 is unable to carry them, the shipowner may earn full freight by sending the 
 goods to their destination at his own expense within reasonable time in 
 another bottom : this right is not affected by an abandonment of the ship 
 by her crew, or to the miderwriters : and the ship is to be, for this purpose, 
 deemed unable to carry the goods to their destmation, if she either cannot 
 be repaii'ed at aU, or cannot be repaired except at an expense exceeding her 
 value when repaired. 
 
 12. FuU freight is due on damaged goods. 
 
 13. No fi-eight is due on any increase in bulk or weight caused by the 
 absorption of water during the voyage. 
 
 14. To the extent of the value of the lien, freight which by the terms of 
 the bill of lading is made payable by the consignee cannot be demanded 
 from the shipper, after the master has parted with his lien on the goods. 
 
 15. The goods, if not taken by the consignee immediately on landing, or 
 within such further time as is provided by the regulations of the port of dis- 
 charge, may be stored by the master, at the expense and risk of the owner of 
 the goods. The master shall be entitled to recover from the shipper the 
 difference between the amount of freight stipulated in the bill of lading and 
 the proceeds of the goods, should the consignee neglect or refuse to receive 
 the same.
 
 382 MARITrME LEGISLATION. 
 
 16. In the event of claims for short delivery, when the ship reaches her 
 destination the price to be the market price at the port of destination on the 
 day of the ship's reporting at the custom-house, less all charges saved. 
 
 Notice. In accepting this bill of lading, the owner of the 
 
 goods and the shipper expressly accept and agree to all its stipu- 
 lations and conditions, whether written or printed. 
 
 Dated in , this day of 188. 
 
 Weight, quality, and contents unknown. 
 (The words printed in italics are to be omitted in the case of sailing shijjs.) 
 
 The following is the report on the form of bill of lading for 
 steamships, proposed by the Committee of the New York Produce 
 Exchange : — 
 
 The proposed bill of lading is based upon the form adopted last 
 August at the ' Conference of the Association for the Reform and 
 Codification of the Law of Nations,' but differs from its model in 
 many important respects. 
 
 The ' Conference ' bill of lading, although far from being a 
 perfect instrument in the sense that under its provisions ' the 
 shipper of goods between the shipowner and the underwriter will 
 be kept harmless from all risks except those of the market,' is still 
 immeasurably superior in the protection it aifords to shippers, in 
 these respects, to any of those now issued by the great steamship 
 lines. The modifications that we suggest, we believe, will be more 
 likely to secure for it the approval of underwriters, and thus afford 
 the full protection that shippers are entitled to. 
 
 We propose to show, by a comparison of the ' Conference ' bill 
 of lading with tlioso now in use in the Atlantic export trade, 
 wherein its provisions ai-e more favourable to the shipper, and to 
 point out the changes that we suggest, aiul our reasons for so 
 doing. 
 
 ■In the very first sentence, ' Sliipix'd in apparent good .order, 
 we find a fjiialificat ion infroduccd wliicli a number of bills of lading 
 nDW in use do not conlain. Dni of iliii-ly-six l)i]Is of lading exa-
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 383 
 
 mined by us, only fifteen use the adjective ' apparent.' It is 
 evident, however, that any acknov^^ledgment of the condition of 
 the goods wliiili describes them as being ' in good order,' must be 
 based on their external appearance, and therefore we do not con- 
 sider the addition of this word as material, and have retained it in 
 our proposed form. 
 
 The liberty to ' call at any ports in any order ' would give as 
 wide a liberty of deviation as any bill of lading now in use provides 
 for, and would not be covered l)y any ordinary policy of insurance 
 witliout express agreement. 
 
 The various liberties now claimed by the steamship lines are as 
 follows : — 
 
 Norfh German Lloyd. — ' With liberty to call at any intermediate 
 port.' 
 
 Ilamhurg Am. Vh. Comjvj. — ' No liberty at all.' 
 
 Ounard Line. — ' With liberty to call at any port, or ports, to 
 receive fuel, to load or discharge cargo, or for any other piirpose 
 whatsoever.' 
 
 White Star. — ' With liberty to call,' &c., exactly as above. 
 
 Lnman Line. — ' To call at any intermediate port for any pm-- 
 pose.' 
 
 National Line. — ' To have liberty to call at an)- port or 
 ports.' 
 
 Anchor Line., Glasgow sere ice. — ' With liberty during the voyage 
 to call at any port, or ports, to receive fuel, to load or discharge 
 cargo, or for any other purpose whatsoever.' 
 
 Aiichor Line, LAverjpool service. — ' With liberty to call at any 
 intermediate port for any purpose.' 
 
 Anchor Line, Bristol service. — ' With liberty,' &c., as per Glas- 
 gow service. 
 
 Guion Line. — ' No liberty at all.' 
 
 Monarch Line. — ' To call at any intermediate port or ports for 
 any purpose.' 
 
 ComjJarjnie Genl. Trans-Atlantique. — '• With liberty to call at 
 any intermediate ports.' 
 
 Wihon lAne. — 'No liberty at all.' 
 
 Great IVesfern Line. — 'With liberty during the vovagfe to call
 
 384 MAIUTIME LF.GISLATIOX. 
 
 at any port, or ports, to receive fuel, to load or discharge cargo, or 
 for any purpose whatsoever.' 
 
 State Line. — ' With liberty,' &c., as Great Western Line. 
 
 Fed Star Line, Antwerp. — ' To call at any intermediate port.' 
 White Cross Line. — 'To call at any port or ports,' &c., as per 
 Great Western Line and others. 
 
 Thingvalla Line. — ' To call at any port or ports,' &c., as above. 
 
 Netherlands' American. — 'To call at any port or ports,' &c., as 
 above. 
 
 Bordeaux Line, Fundi, Edi/e & Co. — ' To call at any port or 
 ports,' &c., as above. 
 
 Royal Netlierland. — ' To call at any port or ports,' &c., as 
 above. 
 
 Taurus Line. — 'To call at any port or ports,' &c., as above. 
 
 Merchants' Line, Neu) Yorh to Havre. — ' To call at any port or 
 ports,' &c., as above. 
 
 Farness Line. — ' To call at any port or ports,' &c., as above. 
 
 Centaur Line. — ' To call at any port or ports,' &c., as above. 
 
 Cambrian Line. — ' To call at any port or ports,' &c., as above. 
 
 Arrou' Line. — ' To call at any port or ports,' &c., as above. 
 
 Bristol Line. — ' To call at any port or ports,' &c., as above. 
 
 Edu-ards Line. — ' No liberty at all.' 
 
 Red Cross Line. — ' With liberty, before shipment or at any 
 period of the voyage, and so often as may be deemed expedient or 
 at anv port or place, to ship the whole or part by any other steamer 
 (whether belonging to the owners of the said steamship or not), to 
 tranship or land or store or put into hulk or craft for such time as 
 may be deemed expedient, and thence re-ship on any other steamer, 
 whether belonging to the owners of the said steamship or not, and 
 with liberty for the said steamer or substituted steamer or steamers 
 to proceed to or stay at any ])orts or places whatsoever on the 
 coasts of Great Britain or L'eland, or on the continent of Europe 
 or Africa, or the islands of the Atlantic, whether in or out of the 
 customaiy or advertised route, in any rotation and for any purpose 
 whatsoever.' 
 
 Tlif steamers of the Red Cross Line are no longer running in 
 til'- Allatitir- triidf. and this document has therefore rather an
 
 TXTi:iiNATIONAL LAW OF AFFIM'JdllT.Ml^NT. aso 
 
 historic than a practical vaUie. Wc reproduce it to show liow fur 
 the sliipovvners may endeavour to exempt themselves from liability 
 if unchecked by united action on the part of shippers. 
 
 We suggest as a proper modilicatiou of the clause, 'with liberty 
 to call at any ports in any order,' the words, ' with liberty to call 
 at any intermediate ports.' 
 
 The next clause, ' To sail without pilots, and to tow and assist 
 vessels in distress, and to deviate for the purpose of savino- life or 
 property,' is, with slight verbal modifications, contained in all l)ills 
 of lading now used by steamers. We have retained tliis clause for 
 the following reasons : — 
 
 It is the invariable rule for steamships to take pilots, the liberty 
 of not doing so being only used in exceptional cases. 
 
 The shipowner needs no permission ' to tow and assist vessels 
 in distress, or to deviate for the purpose of saving life ; ' for the 
 former is already granted by established custom, and the latter is 
 provided for by the law of every civilised country. Deviation to 
 save property only, however, as in the case of towing an abandoned 
 ship into port, will forfeit any policy of insurance, unless as before 
 stated, in regard to the ' liberty to call at any port or ports ' it is 
 provided for by express stipulation. 
 
 The law on this subject is clearly laid down by Chief Justice 
 Cockburn in Scaramanga v. Stamp (Law Reports, 5 C. P. D. 316). 
 The Chief Justice gives the resnlt of the American authorities, 
 viz. : — 
 
 ' Deviation for the purpose of saving life is protected, and in- 
 volves neither forfeiture of insurance nor liability to the goods' 
 owner in respect of loss which would otherwise be within the ex- 
 ception of "perils of the seas." And as a necessary consequence 
 of the foregoing, deviation for the purpose of communicating with 
 a ship in distress is allowable, inasmuch as the state of the vessel 
 in distress may involve danger to life. On the other hand, devia- 
 tion for the sole purpose of saving property is not thus privileged, 
 but entails all the usual consequences of deviation. If, therefore, 
 the lives of the persons on board a disal^led sliip can be saved with- 
 
 C (J
 
 380 ^r.vrJTIME T.EGISLATION. 
 
 out saving the ship, as by taking tlieni oft', deviation for the purposp 
 of saying the ship will carry with it all the consequences of an un- 
 authorised deviation. But^ where the preservation of life can 
 only be effected through the concurrent saving of property, and 
 the bond fide purpose of saving life forms part of the motive which 
 leads to the deviation, the privilege will not be lost by reason of 
 the purpose of saving property having formed a second motive for 
 deviatino-.' In these propositions Chief Justice Cockburn entirely 
 concurs, and continues : — 
 
 'There would be much force, no doubt, in the argument that 
 it is to the common interest of merchants and insurers, as well as 
 of shipowners, that ships and cargoes, when in danger of perishing, 
 should be saved ; and, consequently, that, as a matter of policy, the 
 same latitude should be allowed in respect of saving property as in 
 the respect of the saving of life, were it not that the law has pro- 
 vided another and a very adequate motive for the saving of property 
 by securing to the salvor a liberal proportion of the property saved 
 — a proportion in which not only the value of the property saved 
 but also the danger run by the salvor to life or property, is taken 
 into account, and in calculating which, if it be at once settled that 
 the insurance will not be protected, nor the shipowner freed from 
 liability, in respect of loss of cargo, the risk thus run will, no 
 doubt, be included as an element.' 
 
 We cannot help thinking that it would be for the interest of 
 underwriters to extend the liberty of deviation to the saving of 
 property as well as of life, since by so doing claims for salvage in 
 .such cases would be materially reduced. 
 
 We have retained the clause, 'with liberty, in case the ship 
 shall put into a port of refuge for repairs, to tranship the goods 
 to their destination by any other steamer,' because it has been, for 
 many years past, approved by underwriters as being for the general 
 benefit of all concerned. We have modified the clause, ' with libert}'- 
 to convey goods in lighters to and from the ship at shippers' risk. 
 Such lighterage to be at ship's expense,' b}^ omitting the concluding 
 sentence, 'except tlmt iftlx' cargo is necessarily laiulcd in lighters, 
 the ship being unable to reach the port of destination, the cost of 
 such lighterage sliall fall on cargo;' because this is fully provided
 
 IXTERNATIONAL LAW OF AFFREIGIITMEXT. 387 
 
 for afterwards in soction 8 of the ' Conferenco ' bill of lading; in 
 our form, section 7. 
 
 The morst important clause in all l)illsof lading is that in which 
 the shi[)owner describes the p-rils and accidents from which he 
 claims exemption. The ' Conference ' bill of lading is in this, as 
 in all other respects, more moderate than any of those in present 
 use ; but, in our opinion, requires still further limitation. Its terms 
 are as follows : — 
 
 ' The act of God, perils of the sea, fire, barratry of the master 
 and crew, enemies, pirates and thieves, arrest and restraint of 
 princes, rulers and people, collisions, stranding and other accidents 
 of navigation excepted, even when occasioned by the negligence, 
 default or error in judgment of the pilot, master, mariners, or 
 other servants of the shipowners. Ship not answerable for losses 
 through explosion, bursting of boilers, breakage of shafts, or any 
 latent defect in the machinery or hull not resulting from want of 
 due diligence by the owners of the ship, or any of them, or by the 
 ship's husband or manager.' 
 
 This clause we propose to modify as follows : ' The perils of the 
 seas, fire, barratry of the master and crew, enemies, pirates, assail- 
 ing thieves, arrest and restraint of princes, rulers and peoples ex- 
 cepted. Ship not answerable for losses by collisions, stranding and 
 other accidents of navigation, even when occasioned by the neo-li- 
 gence, default or error in judgment of the pilot, master, mariners, 
 or other servants of the shipowner ; nor for losses through explosion, 
 bursting of boilers, breakage of shafts, or any latent defect in hull 
 or machinery, not resulting, in either case, from want of due dili- 
 gence by the owners of the ship, or any of them, or by the ship's 
 husband, or manager.' 
 
 The bills of lading in present use contain exemptions in addi- 
 tion to those made in the ' Conference ' bill of ladino- viz • 
 
 North German Lloyd's. — ' Robbers, vermin, jettison.' 
 Hamburg Am. Facl-et Co.—' Robbers, vermin, jettison.' 
 Cunard. — ' Robbers, vermin, rain, stowage or contact with, or 
 smells or evaporation or taint or breakage from, other goods, negli- 
 gence, default or error in judgment of stevedores.'
 
 383 :^rArxITIME LEGISLATION. 
 
 White Star.— ' Hohhers, vermin, rain, or from stowage or con- 
 tact with, or smells or evaporation or taint from other goods.' 
 
 Inman. ' Thieves of whatever kind, whether on board or not, 
 
 vermin, riots, strikes, lock-outs or stoppage of labour from what- 
 ever cause rain, spray, stowage or contact with, or smell or 
 evaporation or breakage from, other goods, jettison, or for unsea- 
 worthiness of the ship at the comm.encem.ent of the voyage.' 
 
 National. — ' Thieves by land or at sea, vermin, rain, spray, coal 
 or coal dust, stowage or contact, &c., jettison, fire before loading 
 or after unloading, heat.' 
 
 Anclior Line, Glasgoiv service. — ' Spray, rain, decay or damage 
 bv vermin, stowage or contact with, &c., heat, fire on shore.' 
 
 Anchor Line, Liverj)ool service. — ' Robbers, thieves of whatever 
 kind, whether on board or not, vermin, riots, strikes, lock-outs or 
 stoppage of labour from whatever cause, rain, spray, stowage or 
 contact with, &c., jettison, heat, fire at any time and in any place, 
 or for the unseaworthiness of the ship at the commencement of the 
 voyage.' 
 
 Anchor Line, Bristol service. — 'Rain, spray, decay or damage by 
 vermin, stowage or contact with, &c., heat or fire in craft or hulk 
 or on shore.' 
 
 Gnioii Line. — ' Vermin, stowage, or contact with other goods, 
 fire in craft or on shore.' 
 
 Monarch. — 'Robbers, vermin, pilferage, rain, spray, contact 
 with or smell or evaporation from other goods, jettison, heat, fire 
 at any time or in any place, losses at the port of discharge.' 
 
 Comj^agnie Gen. Trans- Atlantique. — ' Robbers, rats or vermin, 
 rain, spray or contact with other goods, &c., heat, fire at sea or on 
 shore.' 
 
 Wilson. — ' Robbers, vermin, rain, spray, loss or damage or con- 
 tact with, or smell or evaporation, &c., fire in craft or hulk or on 
 
 shore. 
 
 Great Western. — ' Robbers, vermin, stowage, or contact with,' 
 
 &;c. 
 
 State. — ' Rain, spray, decay, or damage by vermin, stowage, or 
 contact with, &c., lieat or firc^ in craft or hulk or on shore.' 
 
 lied Star. — 'Robbers, vonnin, rain, sjiray, loss or damage from
 
 INTEKNATIONAL LAW OF A FFUEIGIITiMENT. 389 
 
 stowage, or contact with, &c., lieut or fire in craft or liuliv or on 
 shore, either before hiding or ailer unlading.' 
 
 While Cro6{i. — ' Jiohbers, vermin, stowage, or contact with other 
 goods.' 
 
 TlitnjcaUa. — ' Robbers, vermin, stowage, or contact,' &c. 
 
 Nethedaads. — ' Robbers, vermin, stowage, or contact, &c., fire 
 in craft or on shore before lading or after unlading.' 
 
 Bordelaiso. — ' Robbers, vermin, stow^age, or contact, &c., fire in 
 craft or on shore.' 
 
 lloi/al Netherlands. — * Robbers, vermin, stowage, or contact, &c., 
 fire in craft or on sliore, before lading or after unlading,' 
 
 Taurus. — ' Robbers, vermin, stowage, or contact, &c., disease 
 (of cattle), want of space, air or water, fire in craft or on shore, 
 before lading and after unlading.' 
 
 Merchant's Ex. — ' Robbers, vermin, stowage, or contact, &c., 
 fire on sliore or in craft.' 
 
 Furness Line. — ' Robbers, vermin, rain, stowage, or contact, &c,, 
 fire in craft or hulk or on shore.' 
 
 Centaur. — ' Robbers, vermin, stowage, or contact, &c., fire in 
 craft or hulk or on shore.' 
 
 Cambrian. — ' Robbers, vermin, contact with, &c., heat or fire in 
 craft or bulk or on shore.' 
 
 Arrow. — ' Robbers, vermin, rain, spray, contact with, &c., fire 
 in craft or hulk or on shore.' 
 
 Bristol City. — ' Robbers, vermin, stowage, or contact, &c., 
 fire in craft or hulk or on shore, before lading and after un- 
 lading.' 
 
 Edwards Line. — '■ Fire on shore.' 
 
 Red Cross. — ' Robbers, thieves of whatever kind, whether on 
 board or not, effects of climate, heat of hold, vermin, rain or 
 spray, all injury arising from other goods by stowage, or contact 
 with, or sweating, leakage, smell, or evaporation from steam or 
 otherwise howsoever, heat, fire at any time and in any place what- 
 ever, jettison, or unseawortliiness of the ship at the commence- 
 ment of the voyage,' &c. 
 
 We have omitted from the excepted perils;, the phrase, ' act
 
 3.90 MAKITIME LKGLSLA'l lOX. 
 
 of God." It is trne that these woicls liave a clearly defined legal 
 meaning. Storv says : ' By the act of God, a phrase which per- 
 haps habit has rendered too familiar, is meant inevitable accident 
 or casualty.' But as the succeeding phrase, ' perils of the sea," 
 is wide enough to cover ' inevitable accident and casualty,' we 
 consider the omitted words superfluous. 
 
 It is well understood that ' barratry of the master ' is not 
 covered by American policies when he is sole or part owner of 
 the ship, even when it concerns innocent shippers of cargo ; but 
 this fact is of little practical importance to shippers by steam, and 
 can easily be provided for by insurance in other cases. So, also, 
 can losses arising ' from enemies and pirates and restraints of 
 princes, rulers and peoples.' We have added the adjective 
 'assailing' before thieves, in conformity with the common law 
 doctrine, which declares ' that shipowners are responsible for 
 theft by their servants, or by others in their employ and confi- 
 dence, or under their protection, but not for theft committed with 
 armed force or other superior power ' (' Story on Bailments '). The 
 exemption of liability of the shipowner for losses directly occa- 
 sioned by stranding, collision and other accidents of navigation, 
 even when occasioned by the negligence, default or error in judg- 
 ment of the servants of the shipowner, is now being tested in 
 the United -States District Court, in Brooklyn, by a suit brought 
 by the Insurance Company of North America, and the Phoenix 
 Insurance Company, of Brooklyn, against the AVilliams and Guion 
 Line, to recover a loss paid by these companies, occasioned by the 
 alleged negligence of the master of the 'IMontana.' The common 
 law doctrine on this subject is stated by Story as follows : ' A loss 
 from a peril of the sea which might have been avoided by the 
 exercise of any reasonable skill or diligence at the time when it 
 occurred, is not deemed to be such a loss by the perils of the sea 
 as will exempt the carrier, but rather a loss by the gross negligence 
 of the party.' Justice Bradley, in Railroad r. Lockwcod, held that 
 * it is not just and reasonable in the eye of the law for a common 
 can-ier to sti])ulate fur cxcn jit ion fioin icsp.onsibility lor the ncgli- 
 gi-iK-f f)f his scrvaiils." 
 
 In l'"raiK('. Sjijiiii. Holland. Sr< llaiid, Loui^iaii;i. and the (JeiMiiaii
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. ?M 
 
 States, the carrier is respousihlt; for (UuuMg'e caused by his servants. 
 Story states, liowever, that the rigour of tlie couniiou law in this 
 respect has been rehixed in I'highind by statutes, &c., but that none 
 of the statutes have been generally adopted in tliis country, and, 
 with the exception of some legislative provisions in a few States, 
 the connnon law prevails. 
 
 Mr. Lowndes boldly argues in his pamphlet, ' On a common 
 form of bill of lading,' ' That there has been growing up in the 
 minds of steamship owners a conviction that there must be one 
 radical change in the old common law of the sea; that the ship- 
 owner can no longer undertake to be answerable for the faults or 
 neglects of the master or crew. It is enough,' he says, 'if he 
 man her with a crew sufficient in number and competent in 
 quality, so far as competency can be ascertained beforehand, and 
 with a master and officers who have obtained certificates of com- 
 petency required by law. To undertake that these men shall 
 always do their duty, and in the course of a long voyage shall 
 never once be guilty of neglect or mistake that shall have a 
 mischievous result, involves a liability which they do not care to 
 undertake. It is no exaggeration,' he continues, ' to say that if 
 not all, certainly the great majority of accidents to steamers are 
 traceable to the fault of some seaman or engineer. A well-built 
 steamer is powerful to resist the adverse forces of nature ; she can 
 hardly spring a leak in any gale, and her engines will keep her ofi' 
 a lee shore ; but she is at the mercy of her own servants : a 
 careless engineer or stoker neglecting to keep up the water in the 
 boilers may destroy her by an explosion ; the rapid pace and 
 frequent entrance of harbours greatly increase the risk of stranding 
 and collision, each mostly traceable to a sailor's fault.' Mr. 
 Lowndes goes on to say : ' Now, so long as the owners of steam- 
 ships, speaking of them as a body, hold this conviction so strongly 
 as to unite in refusing to carry merchandise on any other terms, it 
 cannot be denied that they are acting within their rights. No 
 one is bound to build a steamer, or, having built her, to allow 
 some one else to send goods in her on conditions which he himself 
 does not like," Sac. 
 
 This attitude of the shipowners is only to be met by a com-
 
 392 MARITIMIC LEGISLATIOX. 
 
 Linatiou of the shippers, for certainly no one will build steain- 
 sliips except with the intention of carrying merchandise ; and, if 
 the shippers unite in demanding a reasonable protection from the 
 carrier, thev will be likely to obtain it ; but if, without union for 
 self-protection, they accept any bill of lading which the steamship- 
 owner offers them, they have only themselves to blame if they are 
 held to its conditions. In our opinion, the ' Conference ' bill of 
 lading should, at least, be modified in the spirit of Mr. Lowndes's 
 remarks, and the same provision should be applied to losses occa- 
 sioned indirectly by the faults of the servants of the shipowner, 
 as has been applied to those occasioned by exjjlosion, bursting of 
 boilers, breakage of shafts, or any latent defect in hull or machinery. 
 And we have, accordingly, added the clause, ' not resulting in 
 either case from want of due diligence by the owners of the ship, 
 or any of them, or by the shijo's husband or manager.' Even with 
 this modification the shipper will not be protected by insurance, 
 unless underwriters also agree to this provision, since losses arising 
 from the negligence of master and other servants of the shipowner 
 or from accidents to machinery or latent defects in it, or in the 
 hull, or any unseaworthiness, are not covered by policies of insur- 
 ance. 
 
 The remainder of the clause we have adopted almost as it stands 
 in the ' Conference ' bill of lading, changing only the position of 
 one phrase, and adding to the exceptions, ' breakage and land 
 damage, and any damage,' so that it now reads as follows : — 
 
 ' Nor for decay, putrefaction, rust, sweat, change of character, 
 drainage, leakage, breakage, land damage, or any damage arising 
 from tlie nature of the goods shipped ; nor for the obliteration of 
 marks, ji umbers, addi esses, or descri]itions of goods shipped ; nor 
 lor any damage or loss caused by the prolongation of the voyage.' 
 The whole of this latter clause, however, is supei-fluous, as it is 
 well settled law that shipowners are not liable for damage resulting 
 from any of the enumerated causes. 
 
 W'c have also omitted the word 'primage' which occurs 
 bt'twecn tin- woi'ds ' freight and charges.' It fonnei'ly reprc'sented 
 the master's cojnniissioii on llie freiglit. l)ut as it has lung since 
 ceused ♦<> fl" iliis. it is no lun;:"' r necessarv.
 
 INTERNATIONAL LAW OF AFFREIC4HTMENT. 893 
 
 The clause 'General Average, payable according to York- 
 Antwerp Rules,' we have retained. 
 
 The affirmation clause we have only modified by substituting 
 the words, 'one of which bills of lading being accomplislied,' for 
 ' ihefrsl of wliicli,' &c. 
 
 Marginal clause No. 1, as to quality marks, we have adopted 
 as it stands. 
 
 No. 2 we have omitted, as it is already fully provided for in 
 the body of the instrument. 
 
 No. 3, which we make No. 2, we have modified, viz. : — 
 
 'Ship not accountable for gold, silver, Ijullion, specie, docu- 
 ments, jewellery, pictures, embroideries, or works of art, silks, furs, 
 china, statuary, watches or clocks, unless bills of lading are signed 
 therefor, with the value therein expressed.' 
 
 No. 4, in our form No. 3, is made to read, viz. : — 
 
 ' Shippers accountable for any loss or damage to ship or cargo 
 caused by inflammable, explosive, or dangerous goods, shipped 
 without full disclosure of their nature, whether such shipper be 
 principal or agent ; such goods may be thrown overboard or de- 
 stroyed by the master or owner at any time without compensation,' 
 omitting the words ' whether such shipper shall have been aware 
 of it or not.' 
 
 No. 5, which we make No. 4, is retained unaltered. 
 
 No. 6, with us No. 5, we have modified by adding the words : 
 ' except in cases where such goods are detained awaiting shipment 
 for the convenience of the shipowner.' 
 
 No. 7, in our form No. 6, is adopted without change. 
 
 No. 8, with us No. 7, is retained unaltered, with the exception 
 that we substitute ' shipowners ' for ' owners.' 
 
 No. 9, which we make No. 8, is modified by the omission of 
 tlie concluding phrase, ' whether payable in advance or not.' If 
 freight is paid in advance there can certainly be no lien ; what is 
 probably meant is, that charges, demurrage. Sec. are to be a lien 
 when the ship's freight is paid in advance, but the phrase is 
 ambiguous and unnecessary. 
 
 No. 10. in our bill of lading No. 0, we have adopted without 
 alteration. Jt introduces a rule as to distance freight, which,
 
 394 :\1A1UT1ME LEGISLATION. 
 
 altbougli unknown to the law in tliis country and in England, i.s 
 but reasonable and just. The clause as to ' enhancement of value ' 
 will also properly modify the arbitrary Continental rule, which only 
 looks to the proportion of the voyage completed. 
 
 Xo. 11. in our form No. 10, we have also adopted without 
 alteration. It is already provided for by law in this country, but 
 not distinctly so in Great Britain. The rule as to the circumstances 
 which justify abandonment is in accord with English law, but 
 differs from that pi-evailing in this country. 
 
 Xo. 12 (11) is adopted without change. It is a well-settled 
 rule of law, although in many cases it may work hardship to 
 shippers. 
 
 Xo. 13 (12) we have not altered. 
 
 Xo. 14 (13) we have adopted as it stands. 
 
 Xo. 15, which in our form is Xo. 14, reads in the ' Conference ' 
 bill of lading as follows, viz. : — 
 
 ' The goods, if not taken by the consignee immediately ou 
 landing, or within such further time as is provided by the regula- 
 tions of the port of discharge, may be stored by the master at the 
 expense and risk of the owner of the goods. The master to be 
 entitled to recover from the shipper the difference between the 
 amount of freight stipulated in the bill of lading and the proceeds 
 of the goods, should the consignee neglect or refuse to receive the 
 same.' 
 
 AVe propose the following modificatiou : — 
 
 ' If the goods be not taken by the consignee immediately on 
 landing, or within such further time as is provided by the regula- 
 tions of the port of discharge, they may be stored by the master 
 at the expense and risk of their owners ; provided always, that 
 public notice is given of the arrival of the ship and the commence- 
 ment of the discharge, and that the same does not begin at night, 
 or at any unreasonable liour. The master to be entitled to recover 
 from fhe shipper the difference belween the amount of freight 
 st ij)iil;it((l loi- ill tlic j)ill (if Ijiding and the jiroceeds of the goods, 
 slioiild the consignee neglect or refuse to receive them.' 
 
 The fiiiiil clause, Xo. 10. in niii- r<iriii Xo. lo. is adojited without 
 change.
 
 INTKUNATIONAL LAW OF All- UKKiUTMENT. 895 
 
 The stipulation tu pay for goods short delivered, at the uiark(-t 
 price at port of destination, is fair and according to law, and is 
 also in n)ai-ked contrast with the provision in many bills of lading, 
 ' that the shipowner shall only be liable for the invoice or declared 
 value of the goods, whichever shall be the least,' 
 
 The concluding clause, ' That in accepting the bill of lading, 
 the owner of goods and the shipper expressly accept and agree to 
 all its stipulations,' &c., we have adopted without modification ; 
 and, also, the memorandum ' weight, quality, and contents un- 
 known. 
 
 Samuel A. Sawyeh, Chairman, 
 
 A. E. Orr, 
 David Bingham, 
 
 GUSTAV SCHA\An, 
 E, R. LiVERMORE, 
 
 Silas C. Force, 
 Charles F. Wreaks, 
 
 Committee on Bills of Lading, 
 New York : May 1883. 
 
 Form of Bill of Lading proposed by the Committee of the New York 
 Produce Exchange, based on the ' form " adopted at the Confer- 
 ence of the Association for the Reform and Codification of the 
 Law of Nations, August 1882, 
 
 Shipped, in apparent good order and condition by 
 in and upon the good steamship called the now lying 
 
 in the port of and bound for with liberty 
 
 to call at any intermediate ports, to sail without pilots, to tow and 
 assist vessels in distress, and to deviate for the purpose of saving 
 life or pro])erty ; also with liberty, in case the ship shall put into 
 a port of refuge for repairs, to tranship the goods to their destina- 
 tion by any other steamship, and with liberty to convey goods in 
 lighters to and from the ship at shipper's risk, but at ship's 
 expense being- 
 
 marked and numbered as per margin, and to be delivered in like 
 good order and condition at the aforesaid jwrt of
 
 398 MAKITIME LEGISLATION. 
 
 The perils of the seas, fire, barratry of the master and crew, enemies, 
 pirates, assailing thieves, arrest and restraint of princes, rulers and peoples 
 excepted. Ship not answerable for losses by collisions, stranding and other 
 accidents of navigation, even when occasioned by the negligence, default or 
 error in judgment of the pilot, master, mariners, or other servants of the 
 6hipo^\-ner ; nor for losses through explosion, bursting of boilers, breakage of 
 shafts or any latent defect in hull or machinery (not resulting in either case 
 from want of due diligence by the owners of the ship, or any of them, or by 
 the sliip's husband or manager) ; nor for decay, putrefaction, rust, sweat, 
 change of character, drainage, leakage, breakage, land damage or any 
 damage arising from the nature of the goods shipped or the insufficiencj^ of 
 packages ; nor for the obliteration of marks, niunbers, adch'esses, or descrip- 
 tion of goods shipjied ; nor for any damage or loss caused by the prolongation 
 of the voyage. 
 
 unto or to his or their assigns, freight and charges for 
 
 tlie said goods, as per margin, to be paid on delivery by 
 freight to be paid in cash, without discount, and if in a foreign 
 currency at the rate of exchange for banker's bills at sight, current 
 on the day of the sliip's entry inwards at the custom-house. General 
 Average payable according to York- Antwerp Rules. 
 
 Ix Witness whereof, the master or agent of the said ship hath 
 affirmed to three bills of lading, all of this tenor and date, one of 
 which bills being accom^^lished, the others to stand void. 
 
 1. Quality-marks, if any, to be of the same size or and contiguous to the 
 leading marks ; and if inserted in the shipping notes accej)ted by the mate, 
 the master or agent is bound to sign bills of lading conformable thereto. 
 
 '2. Ship not accountable for gold, silver, bullion, specie, documents, 
 jewellery, pictures, embroideries, or works of art, silks, furs, china, statuary, 
 watches or clocks, unless bills of lading are signed therefor with the value 
 therein expressed. 
 
 3. Shippers accountable for any loss or damage to ship or cargo caused 
 by inflammable, explosive, or dangerous goods shijjped without full disclosure 
 of tlicir nature, wlietlier such shipper be principal or agent ; such goods may 
 be thrown overt card or destroyed by the master or owner of the ship at any 
 time without compensation. 
 
 4. All fines or damages which the ship or cargo may incur or suffer by 
 reason of incorrect or insufficient marking of packages or description of their 
 contents, shall be paid by the shipper or consignee, and the ship shall have 
 a lien on tlie goods of such 8hii)i)er or consignee for the amount thereof. 
 
 5. Goods delivered to the ship whilst on the wharf awaiting shipment, to 
 be at sliipper's risk as regards all perils excepted in the bill of lading, except 
 in cases where such goods are detained awaiting shipment for the convenience 
 of the shipowner. 
 
 6. Goods once sliii)ped cannr)t bo taken away by the shipper except on pay 
 jnent of full freight, together with the expenses of landing them and comiien- 
 hat'.on fur any damage sustained \<y tlic slii[io\vncr througli such taking away.
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 397 
 
 7. Ill case the ship shall be prevented from reachhrg her destination l)y 
 quarantine, blockade, ice, or the hostile act of any Power, the master or 
 shipowners may discharge the goods into any dep5t or lazaretto, or at any 
 near available port ; all expenses thereby incurred on the goods to be borne 
 by the owners or receivers thereof. 
 
 8. Ship to have a lien on all goods for payment of freiglit and charges, 
 including back freight, dennu-rage, forwarding charges, and cliarger. for 
 carriage to port of shipment. 
 
 9. If the ship is able to carry the goods to their destination, but the goods 
 by reason of damage sustained or of their own nature are not fit to be carried 
 all the way, and if such goods have received an enhancement of value by 
 reason of their partial carriage, the ship shall be entitled to a p^o rata fi-eight 
 in proportion to the distance performed, which freight is in no case to exceed 
 the amount of such enhancement of value. Pro rata fi'eight is admissible 
 in no other case than that dealt with in the preceding sentence, unless there 
 be an acceptance of the goods by the shipper or owner of tlie goods. 
 
 10. When the goods are fit to be carried to their destination, but the ship 
 is unable to carry them, the shipowner may earn full freiglit by sending the 
 goods to their destination at his own expense within reasonable time in 
 another bottom ; this right is not affected by an abandonment of the ship by 
 her crew or to the underwriters; and the ship is to be, for this purpose, 
 deemed unable to caiTy the goods to their destination, if she either cannot be 
 repaired at all, or cannot be repaired except at an expense exceeding her 
 value when repaired. 
 
 11. Full fi-eight is due on damaged goods. 
 
 12. No freight is due on any increase in bulk or weight caused by the 
 absorption of water diiring the voj'age. 
 
 13. To the extent of the value of the lien, freight, which by the terms of 
 the bill of lading is made payable by the consignee, cannot be demanded from 
 the shipper after the master has parted with his lien on the goods. 
 
 14. If the goods be not taken by the consignee immediately on landing, 
 or within such further time as is provided by the regvilations of the port of 
 discharge, they may be stored by the master at the expense and risk of their 
 owners ; provided always, that public notice is given of the arrival of the ship 
 and the commencement of the discharge, and that the same does not begin at 
 night or at any unreasonable hoiir. The master to be entitled to recover fi'om 
 the shipper the difference between the amount of freight stipulated in the 
 bill of lading and the proceeds of the goods, should the consignee neglect or 
 refuse to receive them. 
 
 15. In the event of claims for short delivery w'hen the ship reaches her 
 destination, the price to be the market price at the port of destination on the 
 day of the ship's entry at the custom-house, less all charges saved. 
 
 Notice. — In accepting tliis bill of lading tlie owner of the goods 
 and the shipper expressly accept and agree to all its stipulations 
 and conditions, whether written or printed. 
 
 Dated in this day of 188 . 
 
 Weight, quality, and contents unknown.
 
 393 MARITIME LEGISLATION. 
 
 It ought here to be stated tliat during the last sitting 
 of tliis conference on August 11, the Hon. W. W. Field, of 
 Xew York, in the chair, 
 
 Mr. EiCHARD LowxDES moved, and I seconded, the 
 following resolution : ' That the powers of the Affreight- 
 ment Committee be continued, and the names of Messrs. 
 Shotton, Hodgkinson, and Cross be added.' 
 
 This was carried unanimously. 
 
 Xow, when it is considered that, in spite of the general 
 publicity which was given previous to the Liverpool Con 
 ference of its principal object, and of the intention of the 
 English shipowners to secure freedom from liability for 
 the negligence of their masters, officers, and crews, it is 
 certainly extraordinary that the Chambers of Commerce, 
 which are mainly established for the protection of 
 merchant-shippers' interest, did not deem it worth their 
 while to send a sufficient number of delegates to obtain 
 an equitable arrangement on a matter of such vital import- 
 ance to them. 
 
 The natural consequence of this lethargy was, that 
 soon afterwards, from all parts of the world, attempts 
 were made to undo the work of the Liverpool Congress. 
 In proof of this I annex the following important 
 communication received by the hon. gen. sec. of the 
 Association : — 
 
 To Br. Charles Stuhbs, Hon. Gen. Secretary, Association for the 
 Reform and Codification of the Laiv of Natio7is. 
 
 Australian and New Zealand Underwriters' Association 
 
 Committee Room, Jamaica Coffee House, London : 
 
 August 30, 1883. 
 
 Df-ar Sir, — In anticipation of tlio coming conference of your 
 Association to be held at Milan, when one of the subjects for dis- 
 cussion is to be the adoption of a common form of bill of lading,
 
 TXTllIIXATIONAL LAW OF AFFniXrUlTArEXT. 809 
 
 and at which such a form is to hd submitted to the conference for 
 consideration, and in response to your invitation to send any sug- 
 gestions that it might be deemed advisable to have presented on 
 that occasion, I beg to enclose two documsnts protesting em- 
 phatically against the adoption of any form of bill of lading which 
 will relieve the shipowner from liability for the negligence of his 
 master and crew, and I shall be obliged by your communicating 
 them to the conference as the deliberate and carefully considered 
 judgment of the two bodies of gentlemen, entitled, in an assembly 
 such as that to which tlioy will be submitted, not only to respectful 
 attention, but also to acceptance. 
 
 As yon will perceive, one of them bears the signature of all the 
 Australian and New Zealand Insurance Companies, and the other 
 those of the leading London Insurance Companies, and as they may 
 be reasonably taken to represent the views of the whole Under- 
 writing Committees of London and the Colonies of Australia and 
 New Zealand (where precisely the same opinion on the subject has 
 been recently expressed), and yet further, the wishes of all shippers, 
 I am persuaded that they will be regarded by the conference as 
 ' possessed of a gravity and power which it would be right to 
 recognise, and in deference to which the clause now standing in 
 the proposed form of bill of lading will be eliminated.' 
 
 At your former conference the insertion of the clause was 
 advocated on the ground that owners were fettered in their choice 
 of masters by the regulations of the Board of Trade, and that, not 
 being free to choose whom they would, they had a claim to be 
 relieved from all responsibility. The argument, if it deserves the 
 epithet, is captivating rather than convincing. 
 
 As well might it be urged that a man should be adjudged 
 guiltless of folly who, having appointed one to a position of con- 
 fidence and trust because he had passed an examination in book- 
 keeping and accountancy, found himself victimised by the cunning 
 and dishonesty of his nominee, and learned by painful experience 
 that something beyond merely professional or technical knowledge 
 must be required of a man to be placed in such a position. In 
 like manner the shipowner, in his accountability for the lives and 
 property entrusted to his care, ought not to be relieved from all
 
 400 MARITLME LEGISLATIOX. 
 
 responsibility for the results of his appointments bocause the 
 masters whom he selects have been required to give proof that they 
 hiou' how to manage and navigate a vessel — at which point the 
 Board of Trade ceases to exercise control— and beyond which the 
 shipowner's freedom of choice is absolute and perfect. If, therefore, 
 he fail to make choice of wise and fit persons for so high and 
 responsible an office, surely he ought, upon every principle of 
 morality and duty, to be held liable for all the consequences of 
 such a failure. I commend, therefore, these remarks and documents 
 to your care, and remain, dear sir. 
 
 Yours faithfully, 
 (Signed) E. A. Pears, Secret anj. 
 
 Resolved : ' That the secretary be instructed to communicate 
 to the secretary of the Association for the Reform and Codification 
 of the Law of Nations, that the members of this Association desire 
 to protest against the adoption of any form of bill of lading for 
 general use which will relieve the shipowner from liability for 
 the negligence of the master or his men ; and that any attempt to 
 bring about or perpetuate such relief will meet their strenuous 
 opposition.' 
 
 Adelaide Marine Insurance Company. 
 
 South British Insurance Company. 
 
 National Insurance Company of New Zealand. 
 
 Pacific Insurance Company of Sydney. 
 
 Union of New Zealand, H.G.U. 
 
 Mercantile Marine of South Australia, for United Insurance 
 
 Company. 
 Pro Standard Company of New Zealand, H. J. Symons. 
 Pro Colonial Mutual Marine Insurance, H. J. Symons. 
 Sydney Lloyd's, per G. W. Holt. 
 
 Sydney Marine Assurance Company, per A. Meiklejohu. 
 For the Australian Alliance Assurance Company, per Young 
 
 Ehlers & Co. Chas. E. Meeson, ajjent. 
 Australian General Assurance Company, Watt, Gilchrist & 
 
 Co., agents, per E. B.
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 401 
 
 Derwent and Tanner Assurance Company. Ricliardson Bros. 
 
 & Co., agents, j)cr U. E. B. 
 For the South Australian Insurance Company, Limited, 
 
 J. L. -Champion. Agent, T. Galve. 
 The Colonial Insurance Company of New Zealand. Redforn, 
 
 Alexander & Co., per W. Crandy, agent. 
 New Zealand Insurance Company. H. J. Bristow, chairman. 
 The Southern Insurance Company, Limited. Y. F. Watt, 
 
 secretary. 
 Victoria Insurance Company, Limited. Agents, 
 
 To the Secretary of the Association for the Reform and Codification 
 of the Law of Nations. 
 
 London : August 23, 1883. 
 
 We, the undersigned, London Marine Insurance Companies, 
 desire to protest against the adoption of any form of bill of lading 
 for general use which will relieve the shipowner from liability for 
 the negligence of the master or crew, and that any attempt to 
 bring about or perpetuate such relief will meet with our strenuous 
 opposition. 
 
 London Assurance Corporation, per J. S. Mackintosh, under- 
 writer. 
 Universal Marine Insurance Company, Limited, per A. Tozer, 
 
 secretary. 
 Royal Exchange Assurance Corporation, per J. Davis Browne. 
 Indemnity Mutual Marine Association. C. J. L. 0. Smith. 
 The Alliance Marine Assurance Company, Limited. Edward 
 
 Richards. 
 Ocean Marine Insurance Company. A. Price, secretary. 
 Loudon & Provincial Marine Insurance Company. S. L. 
 
 Daniell. 
 Thames & Mersey Marine Insurance Company. A. B. R. 
 The Commercial Union Association Company, per Hen. D. 
 
 Rose. 
 The Marine Insurance Company, Limited. Robert Loop.
 
 402 MARITIME LEGISLATION. 
 
 The Home & Colonial Marine Insurance Company, Limited. 
 
 L. Hillman. 
 The Merchants Marine Company. Thos. Robin. 
 The Globe ]\larine, Limited, per B. Francis Cobb. 
 
 These communications Mr. Stubbs presented on Sep- 
 tember 13, 1883, to the eleventh conference of the Associ- 
 ation at Milan, Sir Travers Twiss in the chair, and they 
 •were considered by the executive council of so much 
 importance as to require further and, if possible, more im- 
 partial discussion. 
 
 In the course of the following year it became apparent 
 that, in the United States of America also, the result of the 
 Liverpool Congress had not been received with anything 
 like o-eneral satisfaction, and that the New York Produce 
 Exchano-e, as well as the Chamber of Commerce of the 
 State of Xew York itself, had appointed special committees 
 to report on the state of affairs and suggest remedies. 
 
 This the latter body — the Chamber of Commerce — did 
 in a very full report on March G, 1884, which concluded 
 with the proposal of a draft Bill. In this report it was 
 distinctly averred that the shipowners treated the whole 
 matter so brusquely, and with sucli independent avowal of 
 being masters of the situation, that the Chamber became 
 convinced that only by adoption of such a Bill justice and 
 equity could be obtained for the interest of the merchant- 
 shippers and their underwriters. 
 
 The wording of this Bill Avas to the following effect : — 
 
 An Act to regulate the Forms of Bills of Lading and the Duties 
 and Tiiabilities of Shipowners and others : 
 
 Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled that every 
 vessel publicly offered at any port of the United States for the con- 
 vcvance of goods and iiiercliandise on the high seas, and all vessels
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 403 
 
 bringing general cargo to any port of the United States, shall be 
 liable to all the conditions .and restrictions of this Act. 
 
 Section 2. That it shall not bo lawful for any such vessel, her 
 owners, master, agent, or manager, to issue any bill of lading which 
 does not clearly specify the exact voyage intended to be made, and 
 any and every port at which it is contemplated she shall touch in 
 the course of said voyage ; and every departure from such voyage, 
 save only when compelled thereto by dangers of the sea, unforeseen 
 necessity, vis major, or to save life and property in distress at sea, 
 and to tow and convey the same into the nearest or most conve- 
 nient port of safety, shall be deemed a deviation. But nothing in 
 this Act contained shall prevent or interfere with the right of the 
 vessel to reserve to herself the privilege of calling at or returning 
 to any port or ports named in the bill of lading ; and a failure to 
 exercise such privilege shall not constitute a violation of this Act, 
 or be deemed a deviation. 
 
 Section 3. That it shall not be lawful for any such vessel, her 
 owners, master, agent, or manager, to insert in any bill of lading 
 any clause, covenant, or agreement whereby the obligations of the 
 owners of said vessel to properly equip, man, provision, and outfit such 
 vessel, and in every way and manner within their, his, or her power 
 to render said vessel seaworthy and capable of performing her in- 
 tended voyage, shall in any wise be lessened, weakened, or avoided ; 
 and all provisions and clauses contained in any bill of lading issued 
 by any such public carrier relieving from liability the vessel, her 
 owners, or master for their or his neglect, or for any improper con- 
 dition of the vessel, shall be null and void and of no effect in law. 
 
 Section 4. That it shall not be lawful for any such public 
 carrier, by any clause or exception in any contract or bill of lading, 
 to be relieved from liability for its, his, her, or their negligence, 
 fault, or failure in proper stowage, custody, and care of all lawful 
 merchandise confided to their charge, nor for failure by reason of 
 negligence to deliver the same, nor to provide for or adopt any 
 other or different transportation than that agreed on by the vessel 
 or voyage specified by which the goods have been shipped, liability 
 for danger of the sea, vis major, or unforeseen necessity being in all 
 cases under this Act excepted, nor to limit the extent of their lia-
 
 404 MARITBIE LEGISLATION, 
 
 bility to less than an indemnity to the cLaimant ; nor shall anything 
 in this Act contained be construed as enlarging the right of any 
 carrier to limit his liability other than as now established by law. 
 
 Section 5. That all goods and merchandise delivered to and 
 received bv any such public carrier shall be deemed as shipped 
 subject to the conditions of this Act, and entitled to a bill of 
 ladino- in accordance therewith ; and upon the refusal of the 
 muster or agent to issue such bill of lading on demand within a 
 reasonable period after shipment, unless such goods and merchan- 
 dise have been received from a preceding carrier, and a bill of 
 lading in conformity hereto has been issued, clearance of such 
 vessel upon which said goods were to be or were laden shall be re- 
 fused by the custom-house authorities of the port until such bill 
 of lading be granted ; and such vessel shall be liable to an action 
 in rem for all damages and losses suffered by the shippers of goods 
 or merchandise by reason of such refusal or neglect. In case of 
 any dispute as to whether the terms of any bill of lading disagree 
 with this Act, and clearance is refused or delayed in consequence 
 thereof, the following clause may then be inserted in or endorsed 
 on such bill of lading, namely : ' It is hereby declared that this 
 bill of lading, as well as all other copies thereof, are intended to 
 conform in all particulars to the Act of Congress of 1885 on the 
 subject of the form of Bills of Lading; and anything herein con- 
 tained to the contrary is hereby made null and void.' And there- 
 upon the collector may deem such insertion or endorsement as 
 making the bill of lading conform hereto, and shall grant the 
 clearance if the vessel is otherwise entitled thereto. 
 
 Section G. That if any vessel, her master, agent, or manager, 
 shall plead, in bar or in defence of any suit at law, any clause or 
 exception of any bill of lading contrary to the provisions of this 
 Act, the limitation of liability provided by section 4283 of the 
 Revised Statutes, relating to shipowners, shall not be held to apply 
 to such vessel, owners, or either or any of them. 
 
 Section 7. That this Act shall take effect on the first day of 
 July eighteen hundred and eighty-five. 
 
 Passed the House of Representatives, February 3, 1885. 
 
 Attest, Jno. B. Clakk, Jun., Clerl:
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 405 
 
 As will be seen from the above attestation of the Clerk 
 of the House of Eepresentatives, the Act passed this House 
 on February 3, 1885, and was sent to the Senate for 
 approval or amendment, but not having been in time for 
 that session, when, according to the advices received, it 
 would have undoubtedly passed that body, no legislation 
 was undertaken on the subject. 
 
 Strange enouo-h, the influence brouj^ht about hv the 
 parties chiefly interested in the steamer traffic between 
 New York, Liverpool and Glasgow upon the New York 
 Produce Exchange proved so efficacious that this impor- 
 tant body adopted, so far back as October 28, 1884, a 
 report recommending with very few and unimportant 
 alterations the adoption of the following, almost identical 
 with the Liverpool Bill of Lading : — • 
 
 New Yokk Produce Exchange Bill of Lading. 
 
 Received, in apparent good order and condition, by 
 from to be transported by the good steamship 
 
 now lying in the port of and bonnd for with 
 
 liberty to call at being marked and numbered as per 
 
 margin (weight, quality, contents, and value unknown), and to he 
 delivered in like good order and condition at the port of 
 (or so near thereto as she may safely get) unto or to his 
 
 or their assigns, he or they paying freight and primage (if 
 customary) in cash, without discount, on the said goods on dis- 
 charge, at the rate of with primage and charges as per 
 margin. General Average payable according to York-Antwerp 
 Rules. 
 
 It is mutually agreed that the ship shall have liberty to sail 
 without pilots ; to tow and assist vessels in distress ; to deviate for 
 the purpose of saving life or property ; that the carrier shall have 
 liberty to convey goods in lighters to and from the ship at the risk 
 of the owners of the goods ; and, in case the ship shall put into a 
 port of refuge or be prevented from any cause from proceeding in the
 
 406 MARITIME LEGISLATION. 
 
 ordinary course of her voyage, to tranship the goods to their desti- 
 nation by any other steamship. 
 
 It is also mutually agreed that the carrier shall not be liable 
 for loss or damage occasioned by causes beyond his control, the 
 perils of the sea or other waters ; by fire from any cause and where- 
 soever occurring ; by barratry of the master or crew ; by enemies, 
 pirates or robbers ; by arrest and restraint of princes, rulers, or 
 people, riots, strikes, or stoppage of labour ; by explosion, bursting 
 of boilers, breakage of shafts, or any latent defect in hull, machinery, 
 or appurtenances ; by collisions, stranding, or other accidents of 
 navigation, of whatsoever kind (even when occasioned by the negli- 
 gence, default, or error in judgment of the pilot, master, mariners, 
 or other servants of the shipowner, not resulting, however, in any 
 case, from want of due diligence by the owners of the ship or any 
 of them, or by the ship's husband or manager) ; nor by heating, 
 decay, putrefaction, rust, sweat, change of character, drainage, 
 leakage, breakage, or any loss or damage arising from the nature 
 of the goods or the insufficiency of packages, nor for land damage ; 
 nor for the obliteration, errors, insufficiency, or absence of marks 
 or numbers, address or description ; nor for risk of craft, hulk, or 
 transliipment ; or any loss or damage caused by the prolongation 
 of the voyage. 
 
 1. It is also mutually agreed that the carrier shall not be liable 
 for gold, silver, bullion, specie, documents, jewellery, pictures, em- 
 broideries, perfumeries, works of art, silks, furs, china, porcelain, 
 watches, or clocks, in any respect, or for goods of any description 
 whatever above the value of 20 dols. per cubic foot, and in no case 
 is the carrier to be liable beyond 500 dols. per package, unless bills 
 of lading are signed therefor, with the value therein expressed, 
 and a special agreement is made. 
 
 2. Also, that shii)])<'rs shall be liable for any loss or damage to 
 ship or cargo caused by inllaniniable, explosive, or dangerous goods, 
 shii)ped without full disclosure of their nature, whether such shipper 
 l^e principal or agent ; and such goods may be thrown overboard or 
 destroyed at any time withoiil comijensation. 
 
 ']. Also, that the carrier shall h;ive a lien on the goods for all 
 liiights, priuuigcs, and charges, and also for fines or damages which
 
 INTEliNATIONAL LAW OF AFFREIGHTMENT. 407 
 
 the ship or cargo may incur or suH'er by reason of the incorrect or 
 insufiicienb marking, nuiiiltcring, or addressing of packages, or 
 description of their contents. 
 
 4. Also, that in case the ship sliall be prevented from reaching 
 her destination l)y quarantine, the carrier may discharge the goods 
 into any di^pot or hizaretto, and such discharge shall be deemed a 
 final delivery under this contract, and all the expenses thereby 
 incurred on the goods sliall l)e a lien thereon. 
 
 5. Also, that the ship may commence discharge immediately 
 on arrival and discharge continuously, the collector of the port 
 being hereby authorised to grant a general order for discharge 
 immediately on arrival, and upon discharge the goods shall be at 
 the risk of the consignee, and if not taken by him within such 
 time as is provided by the regulations of the i)ort of discharge, 
 they may be stored by the carrier at the expense and risk of their 
 owners. 
 
 Note. — After Clause 5 all conditions relating to delivery at 
 different ports (also ice and lighterage, blockade and special 
 quarantine clauses, &c.), to be inserted as agreed upon by shippers 
 and carriers in various trades. 
 
 6. Also, that full freight is payable on damaged or unsound 
 goods ; but no freight is due on any increase in bulk or weight 
 caused by the absorption of water during the voyage. 
 
 7. Also, in the event of claims for short delivery when the 
 ship reaches her destination, the price shall be the market price at 
 the port of destination on the day of the shijD's entry at the 
 custom-house, less all charges saved. 
 
 8. Freight paj^able on weight is to be paid on gross weight 
 landed from ocean steamship unless otherwise agreed. 
 
 9. l^u•cels for different consignees collected or made in single 
 packages addressed to one consignee to pay full freight on each 
 parcel. 
 
 And finally, in accepting this bill of lading, the shipper, owner, 
 and consignee of the goods, and the holder of the bill of lading, 
 agree to be bound by all of its stipulations, exceptions, and con- 
 ditions, whether written or printed, as fully as if they were all 
 signed by such shipper, owner, consignee, or holder.
 
 408 MARIT1>JE LEGISLATION. 
 
 In witness whereof, the master or agent of the said ship hath 
 affirmed to bills of lading, all of this tenor and date, num- 
 
 bered consecutively, one of which being accomplished and given 
 up to the carrier, the others to stand void. 
 
 Dated in this day of 188. 
 
 Tlie Xew York Produce Exchange, in reporting upon 
 tliis bill of lading, added the following statement -vvitli 
 reference to the special question of ship>owners' liability : — 
 
 The most important portion of these clauses — namely, the 
 exemption of the carrier from liability for losses caused by the 
 default of any servant of the ship, provided the owner or manager 
 has done his duty — has been fully preserved. Your committee 
 beg to reiterate the statement made by the framers of the bill of 
 lading submitted to them for revision, in which they pointed out 
 that this exemption is in conflict with the doctrine hitherto held 
 by our Federal Courts, though it has for a long time been sanc- 
 tioned by custom, and by the all but general practice of under- 
 writers. Your committee are equally decided in their opinion 
 that this exemiDtion is demanded by the circumstances under 
 which modern steamship traffic is carried on, and that our Federal 
 Courts will not much longer be able to resist a change so eminently 
 just and necessary. Your committee may add that the carriers' 
 liability for the seaworthy condition of his ship and for good 
 stowage is in no way affected by these clauses. 
 
 It was evident that a declaration from so important a 
 body as the New York Produce Exchange in favour of the 
 shipowners' contentions as expressed in the Liverpool Bill 
 of Lading would carry very great weight in tlie further 
 consideration of this subject, and it cannot be denied 
 that, until the Legislatures of the different maritime 
 nations take the matter in liniid, the united and over- 
 powering inlhicnce of I he sliipowncrs will carry the day. 
 
 We arj-ive now at the time when, iji the city of Lou-
 
 INTERNATIONAL LAW OF AFFIIEIGIITMENT. 400 
 
 don, not only the meniLers of Lloyd's, l)ut the merchants 
 and shipowners assemblmg at the ' Baltic,' as well as the 
 members of the Chamber of Commerce, proceeded pub- 
 licly to discuss the Bill of Lading question, and in order 
 to do justice to the arguments put forward at these 
 meetings, I think it best to reproduce out of the ' Times ' 
 the reports therein contained of them. 
 
 In the ' Times ' of February 5, 1885, it was stated 
 that : — 
 
 A meeting of undeinvriters of Lloyd's, Liverpool, and Glasgow, 
 and of various London marine insurance companies, was held 
 yesterday at Lloyd's under the presidency of Mr. William Young. 
 Tlie circular convening the meeting, which was issued on the 
 21st ult. from Lloyd's, stated that 'A deputation of shipowners 
 and other gentlemen connected with various marine insurance 
 clubs had, at their special request, an interview with the Committee 
 of Lloyd's on January 16. They stated that their object was to 
 obtain the consent of Lloyd's to the adoption of a bill of lading 
 which the deputation proposed should be called ' Lloyd's Bill of 
 Lading.' The chief point which the shipowners desire is the in- 
 troduction of the clause concerning negligence, so that claims 
 against shipowners under that head with regard to cargo may 
 cease. The committee propose to lay this subject before a general 
 meeting,' &c. 
 
 The Chairman, having apologised for the unavoidable absence 
 of Mr. Goschen (Chairman of Lloyd's), stated that the circular of 
 the 21st ult. pretty well explained the reason of that meeting. 
 The request contained therein from gentlemen in the north was 
 one which could not be ignored by the Committee of Lloyd's, but 
 they had felt that the matter was so important that it was their 
 duty to call that meeting to consult with them and underwriters 
 generally on the document in question. Hence the invitation to 
 Liverpool, Glasgow, to various companies in London, and to other 
 underwriting bodies. As an indication of the opinion of gentle- 
 men in different places he would i-efer shortly to views which had
 
 410 MARITIME LEGISLATION. 
 
 been expressed in letters wliicli liad been received. The Under- 
 writers' Association, Glasgow, were strougly of opinion that it 
 would be undesirable in tbe interests of the mercantile commnnity 
 generally that the shipowner should have the power to contract 
 himself out of responsibility to the owners of goods by his vessel 
 for loss through the negligence of his officers and crew. The 
 Underwriters' Association, Liverpool, had sent to the meeting Mr. 
 Cross (chairman), Mr, Storey (deputy chairman), and j\Ir. A. N. 
 Dale, who would be able to speak for themselves ; but it was 
 understood that Liverpool generally was in favour o^ the New York 
 Produce Exchange Bill of Lading. The North of England Steam- 
 ship Owners' Association approved of the New York Produce Ex- 
 change Bill of Lading. The Hull Chamber of Commerce and 
 Shipping were in favour of the form of bill of lading adopted in 
 August 1882. The Newcastle and Gateshead Chamber of Com- 
 merce resolved to memorialise Lloyd's Committee in favour of the 
 adoption of a common form of bill of lading to be called ' Lloyd's 
 Bill of Lading.' To that an amendment was moved: 'That such 
 common form of bill of lading shall not contain any conditions 
 which might further limit the existing responsibilities of ship- 
 owners as common carriers.' This amendment, they were in- 
 formed, was lost by one vote. The New York Underwriters' 
 Association had sent the following cablegram : ' New York 
 underwriters object to restoring negligence clause in bill of lading, 
 and will not assume risks of carelessness of shipowners and crew 
 under ordinary policy.' They had also had letters from various 
 gentlemen well known to them, and especially one from a gentle- 
 man who, he was afraid, was not at that meeting, Mr. Tozer, who 
 liad assisted them on various occasions with his advice. Mr. Tozer 
 had been at first iiicliiird to say: ' Do nothing,' but on having the 
 resolutions which would In- subiniltt-d to the meeting shown to 
 him, he was converted to the views which were expressed therein, 
 and liad authorised hiin to state so. They would have observed 
 in the circular which had been issued the use of the phrase 
 ' Lloyd's Bill of Jjading,' but that w\as without the leave and 
 autliority of Lloyd's Committee. Some had urged that this was a 
 matter of no concern to underwriters at all, and that it lay be-
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 411 
 
 tweon the shipowner and the merchant ; but in answer to that it 
 might be pointed ont that they were employed by both and had 
 duties to botli. Jn liis own individual opinion he thought under- 
 writers really represented the public in the controversy ; their 
 interest was the interest of the public. They would understand 
 that in moving the resolutions, as he intended to do, he was not 
 in any way speaking for the committee as a whole. That was an 
 open meeting, and the question was not a cabinet question, but 
 one for the meeting to decide. If they wished the matter to go 
 further, they would approve the resolutions ; while, if they wished 
 it to end now, they would have nothing to do but to negative them. 
 The resolutions, he thought, bore rather towards the idea of some 
 sort of compromise, and it seemed to him that they would afford 
 some sort of modus vivendi between all parties. He concluded by 
 moving the following resolutions: — 
 
 ' (1). That, in the opinion of this meeting, the proposed reliet 
 of shipowners from responsibility for the conduct of their servants 
 woidd tend to increase preventable loss of life and property at sea, 
 and is not desirable in the interest of the mercantile community. 
 
 ' (2). That if the responsibility of shipowners as at present 
 limited by law be shown to be undul}" onerous, having regard to 
 the conditions of the business, a readjustment of the limits will 
 be the only satisfactory remedy. 
 
 ' (3). That this meeting, while ready to consider any reasonable 
 proposal with regard to the general limit of responsibility, con- 
 siders that any alterations of the ordinary conditions of carriage 
 by sea should be effected by legislation and not by private con- 
 tracts between individual merchants and the shipowner. 
 
 ' (4). That the risks of merchants who accept charters or bills 
 of lading exempting the shipowners from responsibility for the 
 acts of their servants will be thereby greatly increased, and that 
 the acceptance by merchants of such increased risks will be a 
 material circumstance which ought to be communicated to under- 
 writers when they are invited to insure such risks. 
 
 ' (5), That the resolutions passed by this meeting be made 
 public' 
 
 !Mr. S. I. Da Costa, in seconding the resolutions, stated that
 
 412 MARITIME LEGISLATION. 
 
 the subject had engaged his attention for some time, and he had 
 endeavoured to consider it without prejudice to the many conflicting 
 interests involved. From a shipowner's point of view the present 
 state of thino-s must be very unsatisfactory, and he thought the 
 shipowner was justified in seeking some measure of relief from the 
 liabilities which the connuon law imposed upon him. It did not, 
 however, follow that the underwriter was to relieve him entirely 
 from all liability arising from negligent navigation, or to endorse 
 every condition which in his contract with the merchant the ship- 
 owner desired to impose. During the period last year in which 
 he (the speaker) occupied the position of Mr. Young, the subject 
 came before him and the Committee of Lloyd's on a communication 
 from the United States, and various questions were asked and 
 opinions elicited from the committee and underwriters of the 
 United Kingdom. He had thought it would not be undesirable 
 to have a conference at which underwriters, merchants, and ship- 
 owners could express their opinion on the subject, and he used his 
 best endeavours to bring about a conference, but entirely failed. 
 While he deprecated the idea that an underwriter should look upon 
 tlie recovery from an owner for a loss paid to a merchant for mer- 
 chandise sacrificed through negligent navigation in the light of a 
 salvage on his underwriting account, he felt convinced that if the 
 clauses which it was proposed to introduce into charter-parties and 
 bills of lading became current the losses arising from negligence 
 would largely increase, and underwriters would suffer accordiugly. 
 He took it, therefore, that to accept the conditions proposed, and 
 to give them the imprimatur of Lloyd's, was quite out of the 
 question ; and it would bo necessary for underwriters to make this 
 clearly understood by those effecting insurance on goods with them, 
 and that if new conditions were to be imported into charters they 
 must be communicated to underwriters and an equivalent in pre- 
 mium given. ■ He trusted that the resolutions would meet with the 
 unanimous approval of the meeting, and that they might prove to 
 be the means of eliciting some proposals from shipowners which 
 might in th(! end be satisfactory to all the parties interested in this 
 most important question. 
 
 "Mh. C. M, Norwood. M.l'.. said he had understood Mr. J)a
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 413 
 
 Costa to say that the question at issue was entirely a matter for 
 underwriters as far as the meeting was concerned. He (the 
 speaker), however, ventured to think, in the first place, that there 
 were many members of Lloyd's, and subscribing members, who 
 were not underwriters ; but he also took a broader ground, and he 
 thought it a great pity that they should define the relations between 
 shipowners and underwriters. His view was that they were all — 
 underwriters, shippers, and merchants — mutually interested in the 
 settlement of the question. He entirely dissented from the view 
 of Mr. Da Costa, that if the liability of shipowners for negligence, 
 accidents, and default of their masters and mates at sea were 
 removed or reduced there would be a great increase of losses. The 
 position which he took — and which he believed every shipowner 
 took — was that it was not only his legal but his moral duty to 
 make his ship seaworthy, to man her properly, and to conduct his 
 business, as far as the ship was in his control, to the best of his 
 ability ; and if there was any default on the part of the shipowner 
 in a matter in which he had control, he (Mr. Norwood) would be 
 the last to ask to be relieved from the responsibility. The old 
 doctrine was that a voyage by sea was a mutual undertaking 
 consisting of risk all round, and to attempt to saddle the pecuniary 
 responsibility of goods and cargo on a shipowner for the default 
 of his servant thousands of miles away was, he thought, a most 
 monstrous innovation. Every one in that room, too, knew that it 
 was impossible for a shipowner to put in charge of his vessel a 
 captain, mate, engineer, or any responsible person unless that 
 person had the imprimatur of the Board of Trade. If, as he believed, 
 the majority of shipowners selected the best men to command their 
 ships, he thought it monstrous that they should be held respon- 
 sible far the acts of these men, who were selected especially by 
 a Government department to stand between the shipowner, the 
 underwriter, and the merchant. As to an alteration in the bill of 
 lading, he really did think that the request which had been made 
 was not unreasonable — to make clear the limitation of an onerous 
 responsibility ; and he maintained that that was not a request 
 which should be lightly rejected. As a body, shipowners had been 
 attacked in a manner which was altogether unjustifiable, and it was
 
 4U MARITIME LEGISLATION. 
 
 an insulting suggestion that the chief object of the shipowner was 
 to lose his ship and draw his money. 
 
 Mr. "W. Matthews (Messrs. Lamplough and Co.) maintained 
 that if underwriters did not themselves take such risks aS those in 
 question, shipowners would form themselves into mutual clubs, and 
 thus underwriters would ultimately become the losers. 
 
 ]\Ir. F. a. White (Marine Insurance Company) bore testimony 
 to what Mr. Norwood had said from the shipowners' point of view. 
 There was, however, not only the question of the underwriter in 
 this matter, but the merchant who was not insured. He was sure 
 that underwriters, as one of whom he spoke, would discuss the 
 matter fairly and make any reasonable concession. He maintained, 
 however, that the present was not the proper time for discussing 
 the matter, and that they should await the report of the Royal 
 Commission, -which had emanated entirely from the shipowners. 
 
 Mr. J. G. PiTCAiRN was understood to contend that shipowners 
 had no control over the officers of their vessels, and to express a 
 wish that the meeting should be adjourned to see whether some 
 arrangement could not be made with shipowners and merchants. 
 
 ^Ir. J. Park said he could remember the time before 1854 
 when the shipowners' liability was put in the Merchant Shipping 
 Act of that year. In asking underwriters to take the risk in 
 question, shipowners were not asking them to pay anything but 
 what their fathers had paid before them. 
 
 ;Mr. (jr. F. Miller (underwriter) said they were deeply con- 
 vinced of the importance of the third resolution. He thought 
 nothing should be done pending the report of the Royal Commission. 
 
 ^[r. Dale (of Liverpool) said the Liverpool Underwriters' 
 Association had given much consideration to the important question 
 under discussion, and had come to the conclusion that it was neither 
 equitable to shipowners nor politic for underwriters to refuse the 
 suggestion of shipowners — that they should be exempted under 
 bills of lading from liabilities in res})ect of disasters which were 
 absolutely beyond the shipowner's control, and which he had used 
 all due diligence to prevent. He regretted to see, from the expres- 
 sions of feeling already given, that the meeting took a different 
 view. In New York, however (by no means an unimportant
 
 INTERNATIONAL LAW OF AFFRKIGIITMENT. 415 
 
 commercial conimunity), tlio priucii)l(' had l)een conceded, and, 
 though the decisions of the American Courts had hitherto been 
 adverse to the shipowners, the steamship-owners and shippers com- 
 bined liad agreed on a bill of lading which was satisfactory to both 
 parties. The Liverpool steamship owners had recently endeavoured 
 to push those concessions somewhat further, and had sought to 
 exempt themselves from responsibility as to seaworthiness and 
 proper stowage. That had been resolutely withstood by Liverpool 
 underwriters. A compromise was ])robable by which the steam- 
 ship-owners would withdraw their pretensions in consideration of 
 underwriters conceding what was called the ' negligence clause.' He 
 regretted that the meeting showed so little disposition to favour 
 this compromise. Risk was the parent of premium. It was the 
 business of an underwriter to insure against perils of the sea and 
 to receive an adequate premium for so doing. In the past the 
 errors of judgment of masters and crews had been considered a 
 peril of the sea covered by an ordinary policy ; but recent decisions 
 in our Courts had shown there was, as an underwriter in a letter to 
 the ' Times ' had expressed it, a flaw in the shipowners' armour. Of 
 that flaw underwriters had taken advantage. He thought it would 
 not be Avise to continue to do so ; hence he strongly advised con- 
 ceding to the shipowner the negligence clause, leaving him liable 
 only for that which he could control. The resolutions had not, he 
 thought, been prepared with that care which so important a subject 
 required, and one, at least, was especially offensive to shipowners. 
 He hoped, therefore, that the meeting would be willing to postpone 
 any discussion on them, and would appoint a committee composed 
 of underwriters, shipowners, and merchants to consider the whole 
 subject, and to report to a future meeting. He concluded by 
 moving an amendment to this effect. 
 
 Mr. Da Costa, amid some laughter, said he would second the 
 amendment, but 
 
 The Chairman pointed out that if he did he would negative 
 the resolutions he had seconded. 
 
 Mr. Cross (Liverpool) seconded the amendment. He said he 
 knew, indirectly, that a conclusion could not be arrived at by the 
 Roval Commission in less than three vears.
 
 416 MARITIME LEGISLATION. 
 
 ]\Jr. Lodge (the Marine Insurance Company) held that, if the 
 law was to be altered, the application should be made to the 
 Legislature, and not to the Committee of Lloyd's. All that 
 underwriters said, and all that he had power to say, was that they 
 thouo-ht it was more proper to await the result of the Royal Cora- 
 mission, and meantime not to commit themselves to any details. 
 
 Mr. John Glover asked whether, if the shipowners were con- 
 tented to wait, as recommended by Mr. Lodge, until the result of 
 the Royal Commission had been ascertained, probably about three 
 years hence, the underwriters w^ould undertake in the meantime 
 not to bring any further actions against steamship-owners to 
 recover the value of cargoes lost through alleged negligence at 
 sea. (Mr. Lodge : Certainly not.) He had anticipated that 
 reply, and, consequently, it was impossible that shipowners could 
 go on having an action over every loss in which it was to be 
 determined between two underwriters who should pay for a loss 
 for covering which only one of the two had received premium. . 
 He also thought it was much wiser for men of business, parties to 
 ordinary mercantile transactions, to settle such questions among 
 themselves by the adoption of proper documents, instead of waiting 
 an indefinite period for legislativ^e relief which might never come. 
 He also pointed out that for underwriters to insist on retaining 
 the right to proceed in the name of merchants against shipowners 
 for the occurrence of such losses foreshadowed double insurance 
 arrangements, which were always objectionable, the alternative to 
 which was that any shipowner might find himself ruined through 
 the occurrence of peril attributable to the fault of one of his 
 servants over wliicli he had absolutely no control. The effect of 
 the improved bill of lading recommended would make traffic at 
 sea safer, not more hazardous, for if the master-and-servant 
 doctrine wi-ro eliminated from such cases negligent servants would 
 be dismissed promptly, whereas at present it was often necessary 
 to retain them in service because their evidence was wanted in 
 legal proceedings. In fact, the present uncertainty led to nothing 
 but disputes and litigation, the net result of which was that the 
 loss had to be borne by tlie underwriters j>/;^s- large amounts of law 
 costs. The resolutions pointed to inquiry and tlie need for full
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 417 
 
 consideration of tlie whole subject, and he advised the members of 
 Lloyd's to sanation the appointment of a committee for the purpose 
 of making such inquiry and co-operating with other public bodies 
 labouring to settle the matter satisfiictorily. 
 
 Mr. Henry Green (Chairman of the Chamber of Shipping) 
 observed that Mr. Glover had expressed what they felt. He 
 supported the proposal of ^[r. Dale for the appointment of a com- 
 mittee. 
 
 After a few observations from ]\[r. Wren, 
 
 The Chairman replied, and stated that, if they passed the reso- 
 lutions, the second one meant coming to some understanding 
 between the shipowner and the underwriter as to the amount of 
 liability that had to be borne. 
 
 Mr. Michael Wills thought they were pretty much agreed 
 on the general question that it was desirable to have a committee 
 on the subject. He supported the proposal of Mr. Dale. 
 
 The Chairman put the amendment, in favour of which it was 
 stated that there were 47 votes, and it was, therefore, declared lost. 
 
 Mr. Norwood protested against the first resolution. 
 
 The Chairman expressed his conviction that there was not the 
 slightest intention on the part of anyone in the room to cast any 
 reflection on shipowners. 
 
 The opinion of the meeting was taken as to the omission of the 
 first resolution, and 83 hands were held up in favour of this course 
 being adopted. It was therefore struck out. 
 
 The Chairman then put the remainder of the resolutions as a 
 substantive motion, and 65 voting for it, it was declared carried. 
 
 The proceedings then terminated. 
 
 Further, the 'Times' of the 11th of the same month 
 stated : — 
 
 A crowded meeting was held yesterday at the Baltic, Thread- 
 needle Street, to take into consideration the proposed international 
 bill of lading. Mr. S. W. Keene, of the Corn Exchange, 
 presided. 
 
 The Chairman, in opening the proceedings, observed that he
 
 418 MAKiriME LKGISLATloX. 
 
 had been striving for many years to eflfect improvements in bill.s 
 of lading in common use, and at last he thought there was a 
 reasonable prospect of making a very considerable improvement. 
 The meeting was called for the purpose of hearing a statement of 
 the present position of the question, and would be asked to appoint 
 a committee to examine into the whole subject, and to co-operate 
 with other public bodies in the effort to establish a common form 
 of bill of lading. 
 
 Mr. John Glover proposed a resolution in accordance with 
 the object of the meeting. He pointed out that merchants justly 
 complained of the variety in the terms of bills of lading, and 
 showed that the international bill of lading would place responsi- 
 bility on shipowners, and very properly so, in respect of any 
 unseaworthiness in vessels and bad stowage, and would make 
 them responsible for any negligence whatever on their own part. 
 In this respect important improvements would be effected in the 
 interests of merchants. It was also proposed by the common bill 
 of lading to insert in all bills of lading what are known as the 
 ' negligence clauses,' which, he said, Avere now almost universally 
 used in connection with the great steam lines, and in the 
 American, Indian, Australian, Cliina, and New Zealand trades. 
 Notwithstanding the objection of some underwriters to the latter 
 change, there was no difliculty in finding underwriters to take 
 risks, without any additional premium, in bills of lading containing 
 these clauses, as there was a general impression that it was not 
 fair on the part of underwriters to receive premiums against losses 
 and not to bear the losses when they occurred. Shipowners had 
 been rather rudely awakened from a delusion they had entertained, 
 to the effect that the old words in bills of lading — namely, ' all 
 and every other dangers and accidents of the seas, rivers, and 
 navigation of whatever nature and kind soever during the said 
 voyage always excepted ' — saved them from liability for errors in 
 navigation inseparable from the employment of human agency. 
 Actions for large sums had lately been brought against shipowners, 
 in which they had been asked to pay for cargoes lost through mis- 
 takes, collisions, fogs, and other common causes of loss at sea. 
 Shipown'-rs. thfivforc had imw come to the conclusidn that if tliey
 
 IXTERXATIOXAL T.AW OF AFFREIGHTMENT. 419 
 
 had to bear tliese risks their only course was to contract for insur- 
 ance as well as freight, so that out of the premiums they might be 
 able to pay the losses arising from negligence and otlior causes of 
 the kind referred to. It was felt to be unfair tiiat underwriters 
 who had received premiums against losses should, on the occur- 
 rence of such losses, be enabled to keep the premiums and visit 
 the loss on the s]ii[)owuers. 
 
 Mr. John Ross seconded the resolution. 
 
 Mr. Stkphkx Ralli opposed the motion, and expressed his 
 opinion that the bill of lading, as amended by the New York 
 l^roduce Exeliange, was still objectionable. He thought it ad- 
 visable that the whole subject should stand over until the Royal 
 Commission had made their report. 
 
 Mr. Valeri acquiesced in the views of Mr. Ralli. 
 
 Mr. C. ^[. Norwood, M.P., supported the resolution, and 
 stated that there was not the least difficulty in merchants covering 
 the negligence clauvse asked for without any additional premium. 
 An improvement in bills of lading would result from the adoption 
 of a common form based on the draft before the meeting, and it 
 was, therefore, in his opinion, highly desirable to appoint a com- 
 mittee to further consider the matter. 
 
 Mr. Edward Power suggested that the resolution should be 
 amended, so that the subject should be referred for consideration, 
 without reference to the New York Produce Exchange Bill of 
 Lading, and this suggestion was accepted. 
 
 On a vote being taken, the resolution, as amended, was carried 
 by a large majority, and a committee was subsequently appointed. 
 
 And the ' Times ' of March 5 reported the hist of these 
 three meetings as follows : — 
 
 Yesterday a meeting of members of the London Chamber of 
 Commerce, and of merchants, bankers, shippers, and others 
 interested in a revision of the existing clauses of bills of lading, 
 from a mercantile point of view, was held at the City Terminus 
 Hotel, Cannon Street. Mr. Magniac, M.P., president of the 
 Chamber, occupied the chiiii-. and among those present were — • 
 
 K i; 1'
 
 420 ^rAPJTIME LEGISr.ATION. 
 
 Mr. J. H. Tritton. chairman, and the following members of the 
 council :— Messrs. John Glover, E. J. Johnson, W. H. Peat, 
 J. G. Hamilton, George Martineau, J. T. "Ritchie, J. M'Call, and 
 G. H. Powell ; Sir Saul Samuel, Agent-General for New South 
 AVales • Mr. J. F. Garrick, Q.C., Agent-General for Queensland ; 
 Sir Francis Bell, Agent-General for New Zealand ; Captain Charles 
 Mills, Ao-ent-General for the Cape of Good Hope ; Alderman 
 Atkinson, Hull ; Mr. Pearce, Glasgow Chamber of Commerce ; and 
 Mr. Kenric B. Murray, secretary of the London Chamber of 
 Commerce. 
 
 The Chairman, in opening the proceedings, observed that 
 from a communication he had received from a very prominent 
 shipowner, he thought there was some misapprehension as to the 
 scope and object of that meeting. It seemed to have been con- 
 sidered that they were going to hold a kind of indignation 
 meeting in opposition to shipowners. That, however, was an 
 entire mistake. The shipowners themselves had held several 
 meetings to ascertain what their views were on the subject, and 
 the present meeting would endeavour to do the same as regarded 
 the shippers. He had received a letter from Mr. Hubbard, the 
 member for the City, who wrote as follows : — 
 
 'For sometime past I have observed a gradual movement on 
 the part of shipowners to diminish, and even cancel, the liability 
 heretofore held to attach to them as carriers of the goods they 
 received on freight. "With this object, clauses have been inserted 
 in bills successively enlarging the excepted causes of loss and 
 damage until they attain for the shipowner an almost perfect 
 indemnity, notwithstanding that the occurrence of such loss or 
 damage may be distinctly traceable to the neglect or the mis- 
 conduct of the captains or crews. It is easy to discover an origin 
 for this movement in the increased size and costliness of the 
 mercantile marine, in the rapidity of the voyages performed, in the 
 value of time, in the employment of vessels representing a large 
 capital, and in the fref|uont changes of captain and crew which 
 may ■|)roba1)ly occur. 'I'liese considerations, while explaining the 
 anxiety of shipowners to avoid responsibility, cannot satisfy 
 nicrchantH of the wisdom of this mnv policy, or of the fairness
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 4Jl 
 
 with wliich it lias been advocated. The fuudamental principle 
 that an employer of luhour is rosponsiljle for the acts of his agent 
 in regard to the work for which lie is engaged, cannot be set aside 
 for the convenience of the employer without detriment to the com- 
 rannity, and the legal axiom, Qui facit j^er alium facit per se, is 
 strictly applicable to the owner as acting through the captain, and 
 by the captain through the crew, 8ome shipowners, indeed, have 
 repudiated this liability, and renounced any pretence of control over 
 the captain, but this fantastic pretence is cancelled by the fact of 
 ownership, which they unequivocally admit in their title to the ship, 
 and their receipt of its earnings. An irresponsible ownership is a 
 contradiction not to be tolerated. I sincerely trust that an amicable 
 conference of shippers and shipowners may eventuate in a satis- 
 factory adjustment of the conflicting views, and that this desirable 
 result may be forthwith attained without waiting for the report of 
 the Royal Commission, indefinitely protracting the settlement of 
 a question to the solution of which it is wholly unnecessary.' 
 He thought those views commended themselves to the mind of 
 every one present. A bill of lading ought to be the same thino- as 
 the goods themselves. It ought to be precisely the same thino- as 
 a deed for the conveyance of land, or a bill of exchange representino- 
 a commodity. There ought to be absolute certainty about a bill of 
 lading. There should be no uncertainty as to the delivery of the 
 goods, or as to who was responsible if the goods were not delivered. 
 The liability of shipowners and of underwriters ought to be fixed 
 and ascertained ; and it was for the benefit and advantage of 
 public ix)licy, for the benefit and advantage of trade in general, 
 and of the different classes engaged in trade, that such certainty 
 should be absolute. Bankers who advanced on bills of ladinp" ouo-ht 
 
 CD to 
 
 to be jierfectly certain that their advances were not on pieces of 
 paper, but on goods. They would not expect him to go through 
 the different ways in which a shipowner might be affected, but he 
 believed that at the present moment there was one particular 
 liability which the shipowner felt very strongly upon, and about 
 which there was undoubtedly some and perhaps a good deal of 
 question — that was his liability for the acts of his servants. Too 
 little responsibility, however, would engender carelessness, which
 
 422 MARITIME LEGISLATION. 
 
 could not be for the advantage of the nation at large. On the 
 other hand, it might be said that if you require over-responsibility, 
 it may become an illusion, and he believed that it was so in many 
 cases now. This condition of things was not to the interest of any 
 one either. The present bills of lading were not what they ought 
 to be. He had seen one bill of lading — he admitted that it was in 
 a very small trade — as to which he asserted that the only liability 
 upon the shipowner was to receive the freight. There was no 
 liability on him to carry or deliver the goods. That was not a 
 right state of things. Many were anxious that whatever bill of 
 lading was arrived at it should be uniform. He was not prepared 
 to say that it was absolutely impossible to make a uniform bill of 
 lading, but he did think that it was quite possible that there might 
 be particular trades in which particular bills of lading were re- 
 quired. As to the Roj'al Commission, Mr. Hubbard was strongly 
 against any legislative interference in trade which could be avoided. 
 He (the Chairman) felt convinced that if the meeting appointed a 
 conunittee to meet the shipowners, and the two parties could agree 
 upon a bill of lading, the Royal Commission — if it were necessary 
 to submit the arrangement to them — would jump at the oppor- 
 tunity of being saved the trouble which they might otherwise have. 
 Mk. Keene moved the first resolution as follows : ' That this 
 meeting, representing mei'cantile interests, is of opinion that the 
 bills of lading in force at the present time are, in many cases, 
 unacceptable to merchants, in consequence of the clauses exone- 
 rating shipowners from their liabilities. It is urgent that some 
 satisfactory modification of these bills of lading should be agreed 
 upon, and witli that \ifw this meeting resolves that a committee 
 be appointed lo confer witli shipowners and others interested on 
 the subject.' Formt-rly. he said, a bill of lading was a simple 
 receipt given liy llir ciqjtain (n- ownei' by whieh lie undertook to 
 ileliver goods in the same order and condition in which he had re- 
 ceived them, certain contingencies excejited — 'the act of Cod and 
 the perils of tlie sea.' A steamshij* bill cf lading now, however, 
 contained clauses enuinerat ing e\'ery eeneei\ iilile thing wliieli might 
 cause loss or damage to goods, exenijit ing the shi|iit\\ mr IVoni all 
 jiiibiljty arij-ing out of them. lie mnintiiined lli;;l >lii| ]ie)-s had no
 
 INl'ERXATKJXAL LAW OF AFFREIGHTMENT. 423 
 
 freedom uf coutracf. witli the shipowners. He did not wish to go 
 into politics, but in the .\rercliaut Shipping' Hill of lust session 
 there were four clauses which would have helped merchants con- 
 siderably. He thought it unadvisable to wait for legislation. If 
 the Rt»yal Commission were to report that it was advisable to make 
 a bill of lading, he did not believe that the House of Commons 
 ■would make a bill of lading for them. In the second part of his 
 resolution a compromise was proposed, and he believed that much 
 good would come out of the proposed committee. The international 
 bill of lading of 1882 and the New York Produce Bill of Lading, 
 which was based upon the international bill, were far from perfect, 
 but if they were taken as a starting-point by the committee he 
 thought something might be made out of them. 
 
 Sir Francis Bell seconded, and Mr. M-Axdrkw supported, the 
 motion. 
 
 Mr. Stephen IIalli also supported the motion. He referred 
 to the discussions which had already taken place upon the subject, 
 and observed that at ' the Baltic,' where a great many merchants 
 and shipowners met daily for the transaction of their business, the 
 question had been fully debated, and he was glad to state that he 
 believed some partial agreement had been already come to between 
 the two parties. He believed they might consider as certain that 
 {shipowners would in future accept their liability on the arrival of 
 goods for damage. The most difficult question had been in con- 
 nection with losses arising from errors of navigation. As regarded 
 the pilots, shipowners had pointed out that, although they were paid 
 by them, and were legally their servants, yet they ought not to be 
 responsible for losses arising from the pilots' acts. In that view 
 lie must say that mei'chants generally concurred, because, although 
 tiie ])ilots were legally the agents of the shipowners, the latter did 
 not choose them, and were obliged to take on board the pilots who 
 presented themselves. If that great concession were made by the 
 mercantile community, it ought to be appi'eciated by the ship- 
 owners. He believed that he was in agreem<'nt with the feeling 
 of the great majority, if not the whole, of the mercantile com- 
 munity in saying that they would go a step further, and would be 
 willing to exempt shipowners from loss arising from erroi-sof judg-
 
 4->4 MARITIME LEGISLATION. 
 
 nieut on the part of tlieir officers; but lie hoped they would 
 never agree to exempt them from loss arising from the culpable 
 ueo-lio-ence or misconduct of their captains or officers. If ship- 
 owners were exempted from loss arising from the last-mentioned 
 causes some of them — the worst of them — would engage at smaller 
 wao-es an inferior set of men, a proceeding which would lead to 
 increased loss of ships and life at sea. The best proof of the un- 
 fairness of this bill of lading was that the British Government had 
 declined to accept clauses in it to which, however, shippers were 
 obliged to submit. 
 
 Mr. Harris, M.P., in suj^porting the resolution, spoke of the 
 advantagfes of the similaritv of contract which had been established 
 iu the grain trade, and said he thought there ought to be similar 
 agreement about bills of lading. 
 
 Mr. Hollams (solicitor) thought it remarkable, in view of the 
 excited discussion which had taken place, that thei-e had been no 
 change in the law. Until twenty years ago it was suj^posed that 
 accidents from collisions and errors of judgment protected the 
 shipowner as being dangers of the sea, but the Court decided about 
 twenty years ago that that was not so, and that the shipowner was 
 liable. This decision had brought about this state of things — 
 that, notwithstanding that tlie merchant was protected by his 
 underwriter, the shipowner was liable ; and the underwriter, on " 
 paying the loss, became entitled to the rights of the shipper 
 against the .shipowner. He believed that the cause of all the 
 irritation had arisen from this modern practice. Although in law 
 there was no difference, there was practically a good deal of differ- 
 ence between negligence and error of judgment, and he thought a 
 vast distinction ought to be made between the two. 
 
 ^Ih. Stkintiial (^'ice-President of the Manchester Chamber of 
 Commerce) stated that at ^lanchester they looked upon the cpiestion 
 o* bills of lading as rather one between shipowners and under- 
 writers, because the merchants were in the habit of insuring the 
 goods and nf recovering fioiu the uiulerwritcrs, even to the smallest 
 Particular Average, any loss they might sustain. He afterwards 
 testified as a sliipper to the unfair clauses contained in bills of lading, 
 
 .Ml!. L. Walkkr (of Dundee) and Mr. J. F. CahIvRK. Q.C,
 
 INTERNATlOxXAL LAW OF AFFREIGHTMENT. 425 
 
 also supported the motion, tlie latter gmitleman expressing an 
 opinion that, generally, those matters which were within the con- 
 trol of the shipper might fairly stand in the bill of lading, exempt- 
 ing the shipowner. Tlie acts over which the shipowner had 
 control were very large, and there were losses which arose from 
 culpable negligence and those which arose from error of judgment. 
 These, he thouerht, were matters for mutual consideration between 
 the shipowner and the shipper. There were certain matters, in 
 his opinion, where they must appeal to the State. 
 
 After a few remarks from Mr. M'Ausland (J. Connell & Co.) 
 and Mr. Reinhold (of Calcutta) the resolution was passed. 
 
 Mr. J. A. EwEN (Sargood, Son, & Co.) proposed the next resolu- 
 tion : ' That the following gentlemen be appointed as a committee, 
 with power to add to their number, and with power to amalgamate 
 with existing committees: — Messrs. J. Macandrew (Matheson & 
 Co.), Victor Benecke (Benecke, Souchay, & Co.), W. A damson 
 (Adamson, Gillillan, & Co.), Halton (T. A. Gibb & Co ), H. lleinhold 
 (Reinhold & Co., Calcutta), J. A. Ewe (Sargood, Son, & Co.), H. M. 
 Steinthal (Delegate from the Manchester Chamber of Commerce), 
 E. Majolier (Harris Brothers), William Dunn (W. Dunn & Co., 
 South Africa), and J. G. Pitcairn.' He expressed his belief that the 
 resolution would open up the means of an equitable adjustment 
 between all parties. The subject had been approached in no hostile 
 spirit to the shipowners. 
 
 Mr. Y\. G. Sofer seconded the motion, which was carried, 
 the name of Mr. Paterson (IMessrs. Carter, Paterson & Co.) being 
 added to those mentioned. 
 
 Mr. Power next proposed, and Mr. Majolier seconded, the 
 third resolution, as follows: 'That this meeting considers it de- 
 sirable that in all charter-parties and bills of lading an arbitration 
 clause should be inserted.' 
 
 The resolution was carried with two dissentients. 
 
 On the motion of j\1r. Pitcairn, seconded by Mr. P. HiRscii- 
 FELD, a vote of thanks was passed to the Chairman, and the 
 proceedings then terminated. 
 
 There was a furtlier proof o-lveii liow tlie pri]ici])al 
 ilnn^ <)[' the niercaulile coinniuiiiiv of ihh ijrcat cilv
 
 420 MAEITDIE LEGISLATIOX. 
 
 looked anxiously forward for a satisfactory settlement of 
 this most vexed question by their addressing the following 
 requisition to the President of the Eoyal Commission on 
 Loss of Life at Sea, which was at that time occupied in 
 taking evidence : — 
 
 To the IiKjht Ilonoarahle the Earl of Aberdeen^ President of the 
 L'oi/al Commiiision on Merchant Shippimj. 
 
 "We. the uudersigued, bankers, merchants, and brokers of the 
 city of London, desire to see a uniform bill of lading adopted by 
 the owners of British steamships and sailing vessels. 
 
 The present system of multiform bills of lading is found to be 
 inconvenient and unsatisfactory by all members of the mercantile 
 community. 
 
 Shipowners have recently proposed a form as basis of a bill of 
 lading for general adoption, but as the clauses of the bill of lading 
 are involved in the questions referred to the llo3'al Commission, 
 shippers, while granting that uniformity is to be desired, hesitate 
 to take definite action in the matter, in view of the exhaustive 
 consideration of the subject by the Royal Commission under your 
 lordship's presidency. 
 
 Shipowners, though not denying that such hesitation is proper, 
 plead that the question is a burning one requiring prompt solution, 
 and we, on our part, are desirous to have it settled as soon as possible 
 upon principles sanctioned by authority. 
 
 A\'e are, therefore, of opinion that great satisfaction will be felt 
 by ihe mercantile community if the Iloyal Commission ^vill give 
 priority in its deliberations to the consideration of any questions 
 the settlement of which the Commission may think a necessary 
 prfliminai'v to tin- adoption of a uniform bill of lading, and that, 
 if possible, a special report should be made on the subject. 
 
 There is a general desire in all countries to have an internal ional 
 bill of liidinjL'", and it is proljable th;it the recommendations of a 
 Koyal (Vtnniiission would Ix- accepted by other countries as a basis 
 foi- agreement. 
 
 h('>id('> these exj)!-e»i()ii> of ilie Narious iiitci'oled
 
 INTEKNATIOiNAL LAW OF AFFREIGHTMENT. Jl>7 
 
 oijiiiious, the public press aliuosl daily during llie fu-st few 
 months of 1885 contained letters, giving arguments for 
 and against the concession of n()n-lial)ilily to slii[)(>\viiers 
 for the ne<rliii"ence of the master and crew of their vessels. 
 One of the best arguments found in these letters was in 
 these words : ' Do not withdraw' from the only persons who 
 can efTectually influence the conditions of navigation, an 
 important incenti\e to care and vigilance, by acquiescing 
 in a claim so exceptional as that shipowners alone, of all 
 employers of labonr, shall not be held answerable for the 
 negligence and incapacity of those they employ.' Nobody 
 can assert that any shipowner is bound to engage the first 
 master, mate, engineer, or other officer who presents his 
 certificate of competency from the Board of Trade. He 
 has the choice among those who come forward, who, 
 although equally qualified in the eye of the law, do not 
 have, in virtue of their certificate of competency, the right 
 to claim the first vacancy. 
 
 They must, and should, submit to the scrutiny of those 
 whose patronage and employment they seek. Does it not 
 stand to reason, and should it not, as a matter of plain 
 common sense, be assumed that the greater the liability 
 which would fall upon the employer, the shipowner, 
 through the neglect or incapacity of those he employs, 
 the greater will be the incentive for him to employ compe- 
 tent officers, who, in order to retain the confidence of their 
 employer, and consecpiently the means of earning a re- 
 spectable livelihood, would be obliged to exercise the 
 <*:reatest viu'ilance and care in the navigation of the vessel. 
 On the other hand, if nobody but an unknown merchant 
 or his still less known underwriter has to l)ear the conse- 
 (|uen<'es of neglect, how easv would be the inclination to 
 forget the dnty to (Mnplo\- ti-ustworlhy >cr\ants. 
 
 The coniniittce which at the nieetini:" at 'the J^altic'
 
 42S MARITIME LEGISLATION. 
 
 was appointed for the consideration of this (piestion came 
 to the conchision tliat the principal clanse under discussion 
 should be worded as follows : — ■ 
 
 ' Stranduigs and collisions, and all losses and damages caused 
 thereby, are also excepted, even when occasioned by negligence, 
 default, or error in judgnient of the pilot, master, mariners, or other 
 servants of the shipowners, but nothing herein contained shall 
 exempt the shipowner from liability to pay for damage to cargo oc- 
 casioned by bad stowage, by improper or insufficient dunnage or 
 ventilation, or by improper opening of valves, sluices, and ports, or 
 by causes other than those above excepted, and all the above excep- 
 tions are conditional on the vessel being seaworthy when she sails 
 on the voyage, but any latent defects in the machinery shall not be 
 considered unseaworthiness provided the same do not result from 
 want of due diligence of the owners, or any of them, or by the 
 ship's husband or manager.' 
 
 The 'Times' of July 25, 1885, gave the following 
 report of the meeting sunnnoned to consider the subject : — 
 
 "^'esterday a meeting was held at the Baltic Coffee-house, Thread- 
 needle Street, to receive the report of the committee appointed last 
 February to consider the subject of bills of lading and proposed 
 charges therein. The chair was taken by the Right Hon. J. G. 
 Hubbard, M.P., and besides the whole of the members of the com- 
 mittee there was a large attendance of the members. The com- 
 mittee consisted of Messrs. S. W. Keene (S. W. Keene & Co.), 
 T. V. S. Angler fAngier Brothers), James Dixon (Harris & 
 Dixon), A. G. J*himorphopulos (Scaramanga, Manoussi, & Co.), 
 John Glover (Glover Ih-othcrs), E. 1*. Maxsted (Keighley, Maxsted, 
 & Co., Hull), William Milburn, Jan. (Wilham Milburn & Co.), 
 W. Muller a. G. ili.l)bard & Co.), J. Ross (Begbies, Ross, & 
 GiljsonJ, 0, \';tlirii (.Mavro, A'alieri, & Co.), J. Watson (Watson, 
 Mrdill, & Co.), J. n. Watt (.). B. Watt & Co.), and E. H. Watts 
 (Watts, Ward, & Co.). 'J'lic icpoi-f of Ihc committee stated that 
 ihey had held fourteen meetings, and had given tlie matter their 
 most careful consideration. At an early stage of their labours they
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 4'2'J 
 
 were forced to come to the conclusion that the varying circum- 
 stances of different trades rendered it impossible to agree on any 
 form of bill of lading tliat would exactly suit all countries, and they 
 luid therefore endeavoured to frame forms suitable for the Black Sea, 
 Danube, Mediterranean, and Baltic trades. They had unanimously 
 agreed to recommend for use in these trades two forms, one adapted 
 for full cargoes of grain, the other for mixed cargoes and general 
 merchandise. The Chairman, in opening the proceedings, stated 
 that the object of the committee had been to make trading easier 
 and safer, and to put an end to the conflicts which always arose in 
 connection with the existing bills of lading. Mr. Valieri proposed 
 the following resolution : ' That the two forms of bills of lading as 
 framed by the committee be accepted and adopted for general use 
 in the trades named, by both merchants and shipowners, on and 
 after September 1 next.' He had, he said, come to the conclusion 
 that conciliation was the true policy between the various parties, 
 and he regarded the concessions made to the shipowners as rea- 
 sonable and fair. Mr. John Glover, in seconding the motion, ob- 
 served that what was proposed was a fair compromise between all 
 parties. Mr. Roth (Credit Lyonnais) moved an amendment pro- 
 posing in effect a bill of lading of his own composition. No one, 
 however, would second the amendment, which therefore fell through, 
 and the resolution was adopted with a few dissentients. On the 
 motion of Mr. E. H. Watts, seconded by Mr. John Ross, the fol- 
 lowing resolution was also passed : * That a copy of the first resolu- 
 tion, together with the two forms of bills of lading, be sent to the 
 Committee of Lloyd's and to underwriters generally.' 
 
 Substantially the changes which are effected by these new docu- 
 ments are to define more clearly the liability of the shipowner for 
 damage occasioned to cargo by bad stowage, improper dunnage, 
 insufficient ventilation, improper opening of valves, and by the 
 unseaworthiness of the vessel. Complaint had been, made that by 
 some bills of lading, which had come into extensive use, shipowners 
 had exempted themselves from liabilities arising out of these causes 
 for which they ought fairly to be held responsible. On the other 
 hand, the complaint made by shipowners, that they had been 
 recently held answerable for losses which occurred at sea through
 
 430 MARITLME LEGISLATION. 
 
 mistakes and errors of juclgnieut of pilots and master mariners, and 
 from collisions— all of which were quite bej-ond the shipowner's 
 control — has been met by the use of language which has made it 
 clear that such losses, arising out of strandings and collisions, are 
 to be treated as common sea perils. Briefly, the parties concerned, 
 instead of waiting for relief by legislation, which might not come, 
 have taken the course of agreeing among themselves as to the most 
 suitable documents on which to carry on their business. 
 
 No surprise need be felt that sucli Chambers of Com- 
 merce and underwritino- bodies as were not convinced by 
 the arguments brought forward, that the freedom of con- 
 tract should be allowed to any shipowner to contract him- 
 self out of his legal obligation to be answeral)le for the 
 neo"lect or default of his master or crew, should trv to re- 
 open the discussion of this subject on more neutral territory. 
 The Senate of the Hanse town of Hamburg having invited 
 the Association for the Eeform and Codification of the Law 
 of Nations to hold their (tenth) conference in that city on 
 August 18, 1885, it was accordingly publicly announced 
 that this question would be again fully considered. 
 
 On that day, under the presidency of Dr. Fred. 
 Sieveking, the President of the Hanseatic Court of Appeal, 
 the subject was introduced by my presenting the following 
 report on the International Law of Affreightment and Bills 
 of Lading : — 
 
 Some surprise has been expressed that, although the delibera- 
 tions at our Liverpool Congress (1882) resulted in the adoption 
 of a form of bill of lading intended to be used by the mercantile 
 and ship-owning community of the world, the executive council 
 of this Association has deemed it advisable to re-open this impor- 
 tant sul)joct at the present conference. It therefore devolves upon 
 me as fhaii-iuan oft he Bill of Lading and Affreightment Committee, 
 to explain the circumstances which have influenced the council 
 in so df'ciding.
 
 INTEKNATIUXAL LAW OF AFFHEIlillTMEXT. 431 
 
 It may be in the recollection of the members of this Associa- 
 tion that at our Milan conference (1883) Dr. Stubbs, as hon. sec- 
 retary of that committee, reported that, although the draft bill of 
 lading adopted at the Liverpool conference had been most favour- 
 ably received in some quarters, it had also met with considerable 
 opposition in others, and that while he laid upon the table a pam- 
 phlet describing the work of the committee during the preceding 
 3^ear, he at the same time presented resolutions signed by the 
 leading insurance companies of London, and all the insurance 
 companies of New Zealand and Australia, formally protesting 
 against the adoption of any bill of lading for general use which 
 would release the shipowners from liability for the negligence of 
 the master or crew. These resolutions, AA-hich were practically of 
 an identical tenor, concluded with the statement ' that any at- 
 tempt to bring about or perpetuate such relief will meet with our 
 strenuous opposition.' 
 
 The pamphlet just referred to contains the report of the com- 
 mittee on bills of lading appointed by the New York Produce Ex- 
 change, dated May 1883, in which the Liverpool form of bill of 
 lading is criticised, and another form, differing considerably in its 
 details, is proposed in its stead. 
 
 This was not all. Not only have the Chambers of Commerce 
 and the boards of underwriters on the Continent awakened to the 
 very dangerous innovations attempted by the Liverpool Bill of 
 Lading, but the Chamber of Commerce of the State of New York, 
 the National Board of Marine Underwriters at New York, and other 
 public bodies in the United States, have had their attention called 
 to the subject. Their opinion on the subject can best be explained 
 by my quoting the opening sentences of the rej)ort of the special 
 committee on International Bills of Lading of the New York 
 Chamber of Commerce, dated June 5, 1883. These run as 
 follows : — 
 
 ' The multiform bills of lading in existence (if the objectionable 
 clauses are taken collectively) are tantamount to giving the owner 
 of merchandise no obligation on the part of the ship to perform 
 (mythingj and risks are excepted which are not recognised as 
 insured in the printed forms of the policies of marine insurance
 
 43-> MARITIME LEGISLATION. 
 
 companies. Some forms of bills of lading are not so obnoxious as 
 others bat in nearly all, the risks excepted and the conditions 
 imposed are such, that the merchant, who thinks he has insured 
 his ffoods finds, upon examination, that he has not insured against 
 the exceptions and conditions of the bill of lading he receives. 
 
 ' Your committee find, virtually, that nearly every line has 
 promptly followed the example of that one which first began the 
 innovation. Like all social evils, the magnitude and heinousness 
 have become so great, that some amelioration must be granted by 
 the authors, or else the indignation of the mercantile world will 
 soon evolve a worse result to the vessel-owners than any of the 
 liabilities they thus seek to avoid. It is the apprehension of some 
 such result that has prompted the friends of the steamship lines 
 to bring before the conference upon international law in Great 
 Britain this subject, and a proposal that a form of bill of lading 
 should be constructed which should be adapted to the present re- 
 quirements of trade, and which, while granting every fair conces- 
 sion to shipowners, will serve to protect the shipper of cargo from 
 risks to which he should not be subjected, and which properly 
 should be assumed by the shipowner.' 
 
 From the different reports since published by this bod}-, it 
 appears that very considerable care has been taken in elucidating 
 the subject in general, and the law as administered by the United 
 States Courts in particular, and with respect to the latter I may 
 be permitted to quote from the judgment delivered on July 31, 
 1881, by the Hon. Samuel Blatchford, Justice of the Supreme 
 Court of the United States, in the well-known case of the ' j\Ion- 
 tana,' the following sentence : — 
 
 ' In view of all these cases, it holds that a carrier having a 
 regularly established business for carrying all or certain articles, 
 and especially if that carrier be a corporation created for the 
 purpose of the carrying trade, and the carriage of the article is 
 embraced within the scope of its chartered powers, is a common 
 carrier ; that a special contract about its responsibility does not 
 divest it of that character; that it cannot be permitted to stipulate 
 for imniunity for the negligence of its servants ; that the business 
 of u carrier is a public one, and those who employ tlio cai'rier have
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 43:{ 
 
 no real freedom of clioicc, and the carrier cannot be allowed to 
 in^pose conditions adverse to public policy and morality ; that free- 
 dom from liability for losses through sheer accident or dangers of 
 navigation, which no human skill or vigilance can guard against, 
 or for losses of money or valuable articles liable to be stolen or 
 damaged, unless apprised of their cliaracter or value, or for like 
 cases, is just and reasonable, and may be stipulated for, but that a 
 public carrier cannot stipulate for exemptions which are unreason- 
 able and improper, and which amount to an abdication of the 
 essential duties of his employment ; that a stipulation for exemp- 
 tion from liability for negligence is not just or reasonable; that a 
 failure to exercise such care and diligence as are due from the 
 carrier is negligence, and that tlie carrier remains liable for the 
 negligence if the exemption stipulated for is unlawful.' 
 
 In such circumstances no surprise can be felt that the United 
 States Government has been requested to move its Legislature to 
 pass such an enactinent as would, without the necessity of going 
 to law in individual cases, protect the owners of goods from the 
 desire of the shipowner to avoid his legal obligation. 
 
 And after detailing the already above referred to 
 circumstances under which the Act of February 3, 1885, 
 passed the House of Representatives at Washington, I 
 continued : — - 
 
 From this enactment it will be seen that the introduction of an 
 international bill of lading is possible only if the principal objection 
 to the Liverpool form, i.e. with regard to the non-liability of the 
 shipowner for the negligence of the master and crew, is conceded. 
 How little chance there has hitherto been of obtaining this object 
 may be gathered from the lively discussions which have recently 
 taken place on this subject at the meetings at Lloyds, at the 
 Baltic, and elsewhere in the city of London, and the different 
 letters which have appeared in the public press since the month of 
 February last. 
 
 I ought not to omit to state that Dr. Joh. Fr. Voigt at Ham- 
 burg, formerly a Judge at tlie High Court of Ajipeal in Leipzig, 
 
 F 1'
 
 ^34 MArjTIME LEGISLATION. 
 
 prepared an opinion for the la^t conference of German jurists on 
 this subject, in which he upholds the contention, in which I fully 
 concur tliat it is not equitable to concede to the shipowner tlie 
 much desired non-liability for the negligence of the master and 
 crew. 
 
 As it can hardly be denied that at the present moment the laws 
 of the whole world are identical on this subject, the surprise may 
 easily be understood, which was generally felt, that the shipowners 
 of this country had succeeded in carrying the Liverpool Bill of 
 Lading. 
 
 There appears, at least in my opinion, to be no alternative but 
 to reconsider the whole subject. In order, therefore, to facilitate 
 this course of proceeding, I would suggest that a small committee 
 of five gentlemen, viz. one shipowner, one merchant (not holding 
 shipping property), one underwriter, one banker, and one lawyer 
 should be elected by this conference for the purpose of considering 
 the matter and reporting their recommendations at their earliest 
 convenience. 
 
 The conference will then be able to base their further i-esolu- 
 tions upon what may be justly called equitable recommendations. 
 
 I should further mention that very serious objections have been 
 raised to the present forms of the bills of lading in general. It 
 has been observed that it is not only inconvenient, but utterly 
 impossible for any individual, whether he be the shipper of the 
 goods or his underwriter, or the banker with whom he wants to 
 negotiate a loan on depositing the bill of lading as security, to 
 read and examine its contents. It has been suggested that the 
 bill of lading in its original short form should be restored, and 
 should contain simply a reference to a code of Rules of Affreight- 
 ment in precisely the same way as is done in policies of insurance 
 to the York and Anlwi'i-p Ca'ueral Average llules. It would be 
 the duty of your committee to draw up such a code, which might 
 be styled ' International Affreightment and Bills of Lading Rules.' 
 
 By adojjting this course the same object would be attained as 
 the ])arties interested now have in contemplation, namely, the 
 iiiiirdriiiitv of lli(^ conditions under which bills of lading are to bo 
 issui'd 1)V the shipowner, received by the owner of the goods, and
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 4:35 
 
 dealt with by him in his transactions with liis underwriter and 
 with his banker ; while there would be the additional advantage 
 that it would be easy to detect and correct in such a short 
 document any misprint, which in any document of the length of 
 the Liverpool Bill of Lading, would be practically impossible. 
 
 With regard to the proposition contained in the report, that a 
 small committee should be appointed to consider and report on the 
 subject, I stated that, having had the opportunity, since my arrival 
 at Hamburg, of conferring with several members and delegates, 
 and finding that nearly all those present at the conference were 
 specially interested in this question, I desired to withdraw the 
 proposal, and to suggest instead that tlio conference itself proceed 
 at once with the discussion of the subject. 
 
 The President observed that a modification of the Liverpool 
 Bill of Lading had been prepared by Dr. Stubbs, as secretary of 
 the committee, with a view of its forming a basis for the dis- 
 cussions of the conference. But as this form was not yet in print, 
 and could not be distributed to the members of the Association 
 until to-morrow morning, he proposed that for the present, in 
 order to avoid any loss of time, the Rules of Affreightment pre- 
 pared b}^ the Hamburg Chamber of Commerce, which had already 
 been printed for distribution amongst the members of the con- 
 ference, should be taken as the basis of discussion. This proposal 
 was adopted by the conference. The following are the rules 
 prepared by the Hamburg Chamber of Commerce : — 
 
 Rules proposed by the Hamburg Chamber of Commerce 
 
 CONCEHXING BiLLS OF LADING. 
 
 Rule L — It shall not be lawful to insert in the bill of ladintr 
 any clause, covenant, or agreement, whereby the obligations of 
 owners to properly equip, man, provision, and outfit the vessel, 
 and to render her seaworthy and capable of performing her in- 
 tended voyage, or whereby the liability of owners for the faults or 
 negligence of their servants in all matters relating to the ordinary 
 course of the voyage, such as the stowa;^e and right delivery of the 
 cargo and other matters of this kind, shall in any wise l)e lessened.
 
 436 MARITIME LEGISLATION. 
 
 weakened or avoided ; and all provisions and clauses to the con- 
 trar\- shall be null and void and of no effect in law, 
 
 EuLE 2. — Owners to be exempt from the perils of the seas, fire, 
 enemies, pirates, assailing thieves, barratry (but not common theft), 
 arrest and restraint of princes, rulers, and peoples; and not 
 answerable for losses by collisions, stranding, and all other accidents 
 of navigation, even though the loss from these may be attributable 
 to some wrongful act, fault, neglect, or error in judgment of the 
 pilot, master, mariners, or other servants of the shipowner, nor for 
 losses through explosion, bursting of boilers, breakage of shafts, or 
 any latent defect in hull or machinery (not resulting in either case 
 from unseaworthiness nor from want of due diligence by the owner 
 of the ship or by the ship's husband or manager) ; nor for decay, 
 putrefaction, rust, sweat, change of character, drainage, leakage, 
 breakage, land damage, or any other damage arising from the 
 nature of the goods shipped or the insufficiency of package ; nor 
 for the obliteration of marks, numbers, addresses, or descriptions 
 of goods shipped ; nor for any damage or loss caused by the pro- 
 longation of the voyage. 
 
 Rule 3. — Ship to be at liberty to call at any intermediate 
 ports, to sail without pilots, to tow and assist vessels in distress, 
 and to deviate for the purpose of saving life or property ; also with 
 liberty, in case the ship shall put into a port of refuge for repairs, 
 to tranship the goods to their destination by any other steamship ; 
 and with liberty to convey goods in lighters to and from the ship 
 at shipper's risk, but at ship's expense. 
 
 I^^ULE 4. — Quality-marks, if any, to be of the same size as and 
 contiguous to the leading marks ; and if inserted in the shijiping 
 not^s accepted by the mate, the master is bound to sign bills of 
 lading conformable thereto. 
 
 llULE 5. — Ship not accountable for gold, silver, bullion, specie, 
 docum'ents, jewellery, works of art, or other valuables, unless bills 
 of lading are signed therefor with the value therein expressed and 
 a special agreement is made. 
 
 llULE G. — Shippers accountable for any loss or damage to ship 
 or cargo caused by inflaimii:il)l.-, explosive, or dangerous goods, 
 sliiprxd wilhoiil full disclosure of Ihfii' nature, whether such
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 437 
 
 sliipper shall have been aware of it or not, and whether such 
 shipper be principal or agent ; such goods may be thrown over- 
 board or destroyed by the master or owner of the ship at any time 
 without compensation. 
 
 Rule 7. — AH fines or damages which the ship or cargo may 
 incur or suffer by reason of incorrect or insufficient marking of 
 packages or description of their contents, shall be paid by the 
 shipper or consignee, and the ship shall have a lien on the goods 
 of such sliipper or consignee for the amount thereof 
 
 Rule 8. — Goods delivered to the ship, whilst on quay await- 
 ing shipment, to be at shipper's risk, as regards all the j^erila 
 excepted in these rules, except in cases where such goods are 
 detained awaiting shipment for the convenience of the shipowner. 
 
 Rule 9. — Goods once shipped cannot be taken away by the 
 shipper except upon payment of full freight and compensation for 
 any damages sustained by the owners through such taking 
 away. 
 
 Rule 10. — In case the ship shall be prevented from reaching 
 her destination by quarantine, blockade, ice, or the hostile act of 
 any power, the master or owners may discharge the goods into any 
 depot or lazaretto, or at the nearest convenient port ; all expenses 
 thereby incurred upon the goods to be borne by the owners or 
 receivers thereof. 
 
 Rule 11. — Full freight is due on damaged goods. 
 
 Rule 12. — If the goods be not taken by the consignee imme- 
 diately on landing, or within such further time as is provided by 
 the regulations of the port of discharge, they may be stored or 
 discharged into hulks or lighters by the master at the expense and 
 risk of their owners ; provided always, that public notice is given 
 of the arrival of the ship and the commencement of the discharge, 
 and that the same does not begin at night, or at any unreasonable 
 hour. 
 
 Rule 13. — Ship to have a lien on all goods for payment of 
 freight and charges, including back freight, demurrage, forwarding 
 charges, and charges for carriage to port of shipment, and to be 
 entitled to recover from the shipper the difference between the 
 amount of freight stipuIatLxl in the bill uf lading and the proccoils
 
 438 .MARITIME LEGISLATION. 
 
 of the goods, should the consignee neglect or refuse to receive 
 them. 
 
 Elle 14. — To the extent of the value of the lien, freight, 
 which by the terms of the bill of lading is made pa^'able by the 
 consio-nee, cannot be demanded from the shipper after the master 
 has parted with his lien on the goods. 
 
 Rule 15. — In the event of claims for short delivery when the 
 ship reaches her destination, the price to be the market price at 
 the port of destination on the day of the ship's entry at the custom- 
 house, less all charges saved. 
 
 Rule 16. — Weight, measure, quality, contents, and value, 
 although mentioned in the bill of lading, to be considered as 
 unknown to the master, unless expressly recognised and agreed to 
 the contrary. 
 
 Rule 17. — General Average to be paid according to York- 
 Antwerp Rules. 
 
 Rule 18. — Freight to be paid on delivery in cash, without 
 discount, at the rate of exchange of bankers' bills at sight current 
 on the day of the ship's entry at the custom-house. 
 
 Herr Jacob Ahlers, one of the delegates of the Hamburg 
 Chamber of Commerce, explained the grounds upon which that 
 body had proceeded in framing the rules now before the confer- 
 ence. The Chamber would on no account relieve the shipowner 
 from responsibility for seaworthiness, the equipment of the ship, 
 stowage of the cargo, and so forth, but they considered it unjust 
 to hold him responsible for the ability and skill of the crew. No 
 tradesman dealing on a large scale would undertake such responsi- 
 bility for his staff. The shipowner would certainly do his utmost 
 to make a good selection as regards the captain and the crew ; he 
 would have to see that, even in foreign ports, the equipment and 
 stowage are well done, but, on the other hand, it would be abso- 
 lutely impossible, in view of the present rapidity of communication, 
 for him to make a selection with regard to the crew. He would 
 cite, as an illnsfration, carriage by post and railway, in which, 
 altliough certainly responsibility was undertaken, it was only on 
 ])aym(',nt of a high pi-emium ; and under such conditions possibly 
 '<liij)o\vn('i'K also might be induced to undertake the liability. The
 
 INTERNATIONAL LAW OF AFFREIGIITMI.NT. 4:)d 
 
 rules of the Hamburg Chamber would make them res])o]isible for 
 everythiuo- tluit could injustice be required of him, but not for the 
 acts of men over whose action it was absolutely impossible for an 
 owner to exercise control. When even the Post Office and the 
 railway, notwithstanding their numerous staff, are unable to super- 
 vise every action, how could the shipowner be in a position to 
 assume the responsibility ? He concluded by recommending the 
 rules to the consideration of the conference. 
 
 The general secretary then read the following extract from a 
 letter received from Mr. llichard Lowndes, of Liverpool, who was 
 prevented by ill-health from taking part in the conference. The 
 letter was dated August 7, 1885 : — 
 
 ' With regard to the reform of the law and practice of this 
 country as to the bill of lading, I can state with confidence that 
 there is already a great change in the feeling of the steamship- 
 owning companies of Liverpool since the time when your Asso- 
 ciation met in Liverpool. At that time their opposition to our 
 proposals — or at least the opposition of a large party amongst 
 them — was the great difficulty in our way. Now, I believe — 
 very likely to a great extent from the fear of a still stronger 
 measure threatened by Mr. Chamberlain — many of those steam- 
 ship owners who were then most hostile have come round to see 
 that we were really their best friends, and will now support us. 
 The Committee of Lloyd's also are taking action in what is likely 
 to prove the same direction. 
 
 ' There is, however, a certain pause or suspense, and we hardly 
 know how to take action until the Royal Commission on Shipping 
 has issued its report, and Mr. Chamberlain has brought out his 
 promised or threatened Bill. It would be truly wise, in my opinion, 
 to utilise the respite thus offered to the shipowners, by their volun- 
 tarily proposing a well-considered reform of the bill of lading. 
 We may fairly hope that the discussion of the subject at Hamburg 
 may operate as a stimulus to this, perhaps by the appointment of 
 a fresh committee. Our bill of lading was certainly too long 
 and cumbrous, but the leading principles of it have, 1 think, met 
 with general acceptance.' 
 
 The following resolutions, adopted by the Chamber of Com-
 
 440 MARITIME LEGISLATION. 
 
 merce of Liibeck, were also presented to the conference by the 
 deleo-ates of that Chamber, and distributed to those present, but 
 were not formally moved, in view of the direction taken by the 
 discussion : — 
 
 General Law of Affreightment and Bills of Lading. 
 
 '1. It is not feasible to include all or all the more important 
 principles concerning the law of Affreightment within the space of 
 the form of a bill of lading, as the number of the provisions which 
 would be required is too great, and the length of the bill of lading 
 must necessarily be limited, in order to secure an easy survey of 
 its contents. 
 
 ' 2. The form of bill of lading hitherto generally used, which 
 contains only the necessary particulars as to the parties, the 
 objects of the contract, and the contract itself, together with the 
 sundry provisions necessary for the case in question, suffices in 
 practice, because the principles which govern the law of Affreight- 
 ment are fixed by law or custom, and are known to all parties 
 concerned so far as it is necessary. 
 
 ' 3. The wish to abolish the differences which now exist in the 
 law of Affreightment of the different maritime countries can only 
 be realised, in case the legislative powers or the Governments of 
 the maritime countries authorise competent delegates familiar with 
 maritime interests, and particularly owners, merchants, under- 
 writers, and jurists, to deliberate and agree on the draft of a code 
 of maritime law. 
 
 ' 4. Besides such international code of maritime law, it will 
 always be necessary to provide clauses for particular species of 
 shipping as to the mutual rights and duties of the parties con- 
 cerned, which clauses in every case must be stipulated by those 
 concerned according to cireumstiinces and equity. These pro- 
 visions, wliicli may exist at tlie side of the general law or alter 
 the same, are to be incorporated in the bill of lading or to be 
 quoted only, in case their length should make that necessary. A 
 cf>imiion foi'iii iif hill of lading suiting all purposes cannot be 
 framed. 
 
 '5. The i)re.sent attempt lui the part of shipowners to render,
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 441 
 
 by a common form of bill of lading, the shipowners in future no 
 longer liable for the faults of their servants cannot be approved of, 
 as it would constitute an anomaly in maritime and commercial law. 
 
 ' The liberty to call at any ports in any order, to sail without 
 pilots, to tow and assist vessels in distress, and to deviate for the 
 purpose of saving property, is not to be granted by general clauses 
 in a common form of bill of lading.' 
 
 The conference then proceeded with the discussion of the 
 Hamburg Rules, which were read, one by one, by the General 
 Secretary. 
 
 On Rule 1, Dr. Raiiusex (Amsterdam) objected to the limita- 
 tion of the owners' liability to ' matters relating to the ordinary 
 course of the voyage,' and considered that the wording of this part 
 of the rule was by no means clear. 
 
 Hekr Aiilehs defended the rule, though willing to have the 
 wording modified so as to make the meaning clearer. 
 
 Consul H. H. Meier preferred, on this point, the wording of 
 the model bill of lading prepared by the New York Produce 
 Exchange, and approved by the Liverpool Steamship Owners' 
 Association, which he read. He wished to defend the shipowners 
 against the attacks now directed against them. Their position was 
 a very different one from that of the railways, which were mono- 
 polies, but a shipowner could not by any means be said to possess 
 a monopoly. The effect of imposing liability upon shipowners for 
 the negligence of their officers and crew, whose conduct whilst at 
 sea and in foreign ports it was impossible for them effectively to 
 control, would be to render it impossible for them to carry on their 
 business. It was only of late times that it had been attempted to 
 make them liable in such cases, and it was not until they had 
 been made to suffer heavily, for acts which they were powerless to 
 prevent, that the great steamship companies had sought to protect 
 themselves by clauses in their bills of lading. When, at the 
 Liverpool conference, what he thought to be unreasonable claims 
 on the part of the shipowners had been advanced and sanctioned 
 by the conference, he had protested, feeling sure that such one- 
 sided decisions would not take effect in practice. Now he desired 
 to ui-ge upon the representatives of the shippers, in their turn, the
 
 442 MARITIME LEGISLATION. 
 
 danger aud impolicy of going too far in the opposite direction ; if 
 they insisted on doing so, no mutual understanding would ever be 
 arrived at. 
 
 Dr. Yoigt argued against the right of shipowners to exempt 
 themselves from liability for losses due to negligence. 
 
 Herr Ulrich considered the clause as to liability for insufficient 
 packing, &c., to be by no means clear. 
 
 Herr Ahlers explained that it was not intended on this point 
 to deviate from the common law. 
 
 After some further discussion, in which Dr. Stammann, 
 Dr. Monckeberg, Mr. Laeisz, Dr. Rahusen and I took part, the 
 conference unanimously adopted the following portions of the first 
 rule : — 
 
 ' It shall not be lawful to insert in the bill of lading any clause, 
 covenant, or agreement whereby the obligations of owners to 
 properly equip, man, provision, and outfit the vessel, and to render 
 her seaworthy and capable of performing her intended voyage . . . 
 shall in any wise be lessened, weakened, or avoided ; and all 
 provisions and clauses to the contrary shall be null and void, and 
 of no effect in law.' 
 
 The clause after ' voyage,' ' or whereby the liabilities of owners 
 for the faults or negligence of their servants in ... . the right 
 delivery of the cargo, and other matters of this kind,' was also 
 adopted by a large majority. The words ' stowage and,' before 
 ' right delivery,' were then adoj^ted by a unanimous vote. The 
 remainder of the rule (consisting of the words ' all matters relating 
 to the ordinary course of the voyage, such as '), giving rise to great 
 difference of opinion, was postponed for further consideration at 
 the next sitting. The conference then adjourned. 
 
 On Wednesday, August 10, the conference reassembled at 
 10 A.M., the Tri'sident (Dr. Sieveking) in the chair. 
 
 'J'lie draft bill of lading prepared by Dr. Stubbs, as secretary 
 of the Bill of leading Connnittec, was now presented, aud copies 
 di.slriLutud to the members. It was as follows : —
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 443 
 
 Model Bill of Lading, 
 
 Shipped on board the ship whereof is master for the 
 
 present voyage , now lying in the port of 
 
 and bound for , , being marked and 
 
 numbered as per margin, to be carried and delivered at the port 
 of , or so near thereto as the ship and goods can be 
 
 safely brought, unto the holder of this bill of lading, on his paying 
 freight for the said goods at the rate of 
 
 laydays for loading and discharging, demurrage at the rate of 
 per day. 
 
 Subject to all the conditions of the International Code of 
 Affreightment. 
 
 Average according to the York and Antwerp Rules. In 
 witness whereof the master of the said ship has signed two bills of 
 lading exclusive of his own copy, all of this tenor and date, one 
 of which being accomplished the others to stand void. 
 
 Dated at , 188 . 
 
 (Signed) Master. 
 
 To this was attaclied tlic following draft : — 
 
 International Code of Affreightment. 
 
 The shipowner is responsible for the safety and right delivery 
 of the cargo at the port of discharge, unless the loss, damage, or 
 non-delivery is directly caused by any of the following perils : 
 reasonable wear and tear of packages or goods ; leakage, breakage, 
 heat, or decay ; the act of God, the Queen's enemies, pirates or 
 robbers by land or sea, the act, neglect, or default of the master 
 or crew in navigating the vessel ; and accidents of the sea. 
 
 II. 
 
 The shipowner is liable for all loss caused to the owner of the 
 cargo by any unreasonable delay in carrying and delivering the 
 cargo.
 
 444 MARITIME LEGISLATION. 
 
 An unusual delay is to be considered unreasonable unless 
 caused by — 
 
 ' The act of God, the Queen's enemies, or pirates or robbers by 
 sea or land ; 
 
 ' The act, neglect, or default of the master or crew in navigating 
 the vessel, accidents of the sea, restraint of princes, rulers or 
 peoples ; 
 
 Detention in consequence of blockade, quarantine, or ice.' 
 
 III. 
 
 Full freight is to be paid upon all goods shipped, carried and 
 delivered at the named place of delivery, or so near thereto as 
 the same can be safely brought by the shipowner exercising all 
 reasonable efforts and diligence. 
 
 The shipowner shall be considered to have fully exercised 
 such efforts and diligence when the ship has been brought so near 
 the place of delivery as she can come, and be always afloat at the 
 first flood-time without lightening. 
 
 IV. 
 
 Freight shall be paid upon deliver}- of the cargo in current coin 
 of the place of delivery, without discount, and shall be calculated 
 at the Fame rate by which the uanicd freight in the bill of lading 
 coiikl be purchased at that time and place. 
 
 Freight shall be payable upon the bill of lading quantities, 
 unless either party, shipowner or consignee, before delivery intimate 
 that he requires the cargo to be weighed or measured at the place 
 of delivery. 
 
 In such case the owner or master and the consignee shall join 
 in apj)ointing one or more meters or weighers, whose decision as 
 to the quantity delivered shall, in the absence of fraud, be final. 
 The charge for such weighing or measuring shall be borne in 
 moieties by the shipowner and the consignee. 
 
 No freight is due on any increase of bulk or weight caused by 
 the absor|)tioii of water dnring the voyage. 
 
 I'ull IVeight is due upon ail tlaiuaged goods delivered, unless
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 445 
 
 tho damage is caused by the negligence or default of the shipowner 
 or liis serv'ants. 
 
 In case the sliip sliall be prevented from reaching her destina- 
 tion l)y quarantine, blockade, ice, or hostile act of any Power, the 
 master may discharge the goods into any depot or lazaretto at the 
 nearest av^ailable port. All expenses incurred thereby upon the 
 goods shall be borne by the shipper and consignee, and full freight 
 shall thereupon be due. 
 
 Pro rata freight is payable in no case, except by special agree- 
 ment. 
 
 V. 
 
 In case the cargo is carried to its destination and tlu^ consignee 
 refuses to accept delivery, the cargo may be landed In' \hc master 
 and warehoused, and twenty-four hours after writtt^n notice to sucli 
 effect has been given to the shipper or consignee, may be sold by 
 the master or owner of the ship. All landing, warehousing, and 
 sale charges shall be payable by the shipper and consignee. 
 
 VI. 
 
 All charges incurred in shipping cargo, before the cargo is 
 placed on board or taken to by the ship's tackle, and in landing 
 cargo after it has left the ship's side and tackle, sliall be borne by 
 the shipper and consignee of the cargo. 
 
 VIT. 
 
 In the event of claims for short delivery, the damages payable 
 by the shipowner shall be the market price of similar goods at the 
 port of destination on the day of the ship's reporting at the custom- 
 house, less all charges saved, if the ship reaches her destination ; 
 and if the ship does not reach her destination, then the market 
 price of the goods at the port of shipment, plus ten per cent, to 
 cover prospective profits, and interest calculated at five per cent. 
 per annum on this gross amount from the day of shipment until 
 payment, less the average length of the voyage. 
 
 VIII. 
 
 The shipowner shall be liable for all dues upon the ship, and 
 the shipper and consignee for all dues upon the cargo.
 
 446 MARITIME LEGISLATION. 
 
 The shipper and consignee shall be liable to pay or make good 
 to the shipowner all fines and damages incurred or paid Ijy the 
 shipowner, by reason of incorrect or insufficient marking, or de- 
 scription of the cargo, or otherwise by neglect or default of shipper, 
 consignee, or owner of the cargo. 
 
 IX. 
 
 Laydays at the port of loading shall commence on the day the 
 ship is reported inwards at the custom-house, if before midday, 
 or the loading commence on that day, and on the following day, if 
 after midday, and the loading do not commence on that day. 
 
 Laydays or demurrage days at the place of discharge shall 
 commence on the day the ship is reported inwards at the custom- 
 house, if before midday, or the unloading commence on that day, 
 and on the following day, if after midday, and the unloading do 
 not commence on that day. 
 
 Laydays or days on demurrage shall continue to count, up to 
 and including the days on which the loading and discharging of 
 the cargo is finally concluded. 
 
 The days both for laydays and for demurrage days shall be con- 
 secutive days, without any allowance for non-working days, unless 
 the working has been discontinued solely by the default of the 
 master or crew of the ship. 
 
 A day for the purpose of calculating laydays or days on de- 
 murrage shall count from midnight to midnight, and the first and 
 last days if part or broken da3-s shall count as whole days. 
 
 X. 
 
 The shipowner shall have a lien upon the cargo and the pro- 
 ceeds thereof, if justifiably sold by him or his agents, for all freight, 
 demurrage, and other charges and damages herein made paj'able 
 by the shipper and consignee of the cargo. 
 
 XL 
 
 In the course of the voyage, the sliip is to be at liberty to call 
 at any intermediate, Ituf not other jiorts, to sail without pilots, to 
 tow and assist vessels in distress, and to deviate for the purpose of 
 saving life or property.
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 447 
 
 XII. 
 
 In case the ship shall put into a port of refuge for repairs, the 
 master shall be at liberty, at ship's expense, to tranship the goods 
 to their destination, and thereby earn full freight. 
 
 Copies of the New York Produce Exchange Bill of Lading ' 
 were also distributed. 
 
 The President stated that the discussion would now proceed 
 upon the basis of this form, the decisions arrived at yesterday being 
 incorporated in it. 
 
 The form of bill of lading having been adopted without com- 
 ment, subject to revision, Rule 1 of the draft ' International Code 
 of Affreightment ' was read. 
 
 Kesponsibiltty for Negligence. 
 
 I proposed that the words ' the act, neglect, or default,' in the 
 phrase ' act, neglect, or default of the master or crew in navigating 
 the vessel,' be omitted, and replaced by the words ' error of 
 judgment.' Although I did not think it necessary to give all 
 my reasons for doing so, I might state that the experience I had 
 trained by my investigations into maritime casualties for many 
 years past, enabled me to assure the conference that at least 
 nine-tenths of all such disasters as strandings, collisions at sea, 
 and so forth, were due to some neglect or other of the crew which 
 might be prevented if due diligence were exercised. I therefore 
 thought that for such ' neglect or default ' the shipowner ought to 
 be made answerable, but not for mere ' error of judgment.' 
 
 Herk Ulrich seconded this amendment. 
 
 Dr. Franck was of opinion that the words in the draft rule, 
 and those suggested to be substituted, should be alike omitted. 
 
 Herr Ahlers contended that it would be extremely difficult 
 for the Courts, in inquiring into the causes of an accident, to 
 istinguish where ' error of judgment ' ended, and ' neglect or 
 default ' began. In cases of emergency the captain and steersman 
 needed to summon all their energies ; yet, even under such circum- 
 
 • See p. 395.
 
 448 MARITIME LEGISLATION. 
 
 stances, they must depend entirely upon tlie reliability of tlie crew. 
 He was of opinion that a decision in the sense of the amtnidnient 
 would be absolutely impossible to carry out, as shipowners would 
 never accept it. If the conference wished to achieve a durable 
 work, it should accept the clause as presented. 
 
 M. Theodore Exgels also opposed the amendment, and con- 
 sidered it to be in the highest degree unreasonable. Being to a 
 great extent his own insurer, he had the very strongest interest in 
 getting the best captains and crew for his vessels, and in managing 
 them so as to avoid all losses, but the responsibility proposed to be 
 cast on shipowners by the amendment was one which he held to 
 be unendurable. 
 
 I explained that I had expressly proposed to exempt the 
 owner from liability for 'errors of judgment,' and I considered 
 the difference between it and ' neglect or default ' to be very clear. 
 
 Herr Suckau wished both expressions to be omitted. 
 
 Dr. Rahusex considered that it would be by no means favour- 
 able to the shipping interest, in those cases in which it came into 
 competition with railways, to drive to such an extent the exemption 
 of shipowners from liability for the negligence of their servants. 
 He also regi'etted their exemption from liability for default in the 
 unloading of the vessel. He inquired whether the principles now 
 to be laid down were to be considered solely as clauses suggested 
 for a model bill of lading which might be accepted or rejected, or 
 whether it would be understood that they were to be obligatory. 
 
 TiiK President n-plit'd that it must be considered that the 
 rules on this question of liability for negligence would be obligatory. 
 The question as to liability for damages in unloading could be 
 taken up later. 
 
 Dj{. \'oI(JT was of opinion that the most serious cause of liability 
 on the part of shipowners, collision, ought to be provided for by law, 
 and that they should not be allowed arbitrarily to exclude it by 
 ])rivate conventions. Besides, in most cases, the shipowner was 
 only r('sponsil)le to the value of liis ship and freight. The con- 
 scicjiisness of irresponsibility would certainly lead to much greater 
 iK-gligfmce. The shipowner would be able to cover his risk by an 
 increased freight.
 
 INTERNATIONAL LAW OF AFFREIGIITiMI':NT. 449 
 
 Consul H. H. Meier drew attention to the significance of the 
 object sought to be attained — that of limiting the right of free 
 contract between the shipowner and the shipper. It would in 
 practice be impossible for the owner to undertake responsibility 
 for his crew. The North German Lloyd, for example, of which 
 he was chairman, employed 3,000 men, and how was it possible to 
 undertake such a responsibility as would be cast upon them by 
 this amendment ? From a legal point of view it might sound very 
 well, but practically it was unjust. Although he was speaking 
 quasi "pro domo, he must at the same time observe that his com- 
 pany were their own insurers and bore the entire risk themselves, 
 so that they had the greatest interest in making the most careful 
 selection of their crews. How could the shipowner in Europe bs 
 responsible for the Lascars, for instance, who were taken on 
 board in the Indian archipelago as pilots because of their ac- 
 quaintance with its intricate navigation ? It was practically 
 impossible to discharge such a responsibility ; at the best it would 
 be an embodiment of the maxim, Fiat justitia pereat mundus. 
 It must be permitted to shipowners to exclude, by private con- 
 vention, such an obligation. 
 
 Herr Steinacker stated that, as the delegate of the Chamber 
 of Commerce of Buda-Pesth, he looked at the question essentially 
 from the point of view of the shippers' interests. In Hungary 
 the shipowning class was insignificant, so that their commerce 
 depended almost entirely on the shipowners of other countries. 
 The shippers in his country were unanimous in calling for an 
 increase of the shipowners' liability. He desired, in fulfilment of 
 his commission, to impress upon the conference the importance of 
 not allowing the shipowners to go too far in limiting their liability 
 towards the shippers. Hungary did not yet possess a commercial 
 code, and the rules adopted by the Association would therefore be 
 of great importance to them. 
 
 Herr Ahlers opposed the views both of Herr Suckau and of 
 Consul Annecke. He considered the amendment before the 
 meeting to be entirely unworkable and impracticable. If it were 
 adopted it would be impossible to arrive at any of the amendments in 
 the law which were most urgently required by all seafaring nations. 
 
 (i G
 
 4.J0 ]\rARITIME LEGISLATION. 
 
 Here Woermaxn entirely agreed with Consul Meier. If the 
 amendment were adopted, shipowners would have to cover them- 
 selves by insurance for the whole value of the cargo, which was 
 frequently many times more than that of the ship. This would 
 impose upon them an inordinate burden. The shippers could 
 insure the goods much better than the shipowners. Besides, not 
 even the liability of the shipowners by English law would ade- 
 quatelv protect the shippers' interests. The shipowner could only 
 undertake responsibility for his crew to the extent agreed to by 
 the conference yesterday ; anything more would be impracticable 
 and unjust. 
 
 Consul Preuss, on behalf of the Konigsberg Chamber of Com- 
 merce, of which he was president, agreed w^ith Consul Meier, that 
 it would be impracticable for the shipowner to protect himself by 
 insurance. He hoped the first rule would be adopted without 
 alteration. 
 
 Judge Peabody expressed his regret at not having been able to 
 follow the discussion that had taken place in German, and desired 
 to be excused if on that account he should unconsciously repeat 
 aro-uments that had already been urged. He wished to point out 
 that, in the case of carriage by sea, the shipper was often in a con- 
 dition to know very little of the qualifications of the carrier, the 
 shipowner. Although he might be acquainted, by reputation or 
 otherwise, with a few great corporations or firms engaged in busi- 
 ness as carriers, yet in many cases great lines of shipowners, with 
 whom he could have no practical acquaintance, would have a prac- 
 ncal monopoly of the business, and he would have no alternative 
 Init to trust his property to them, and the property once in posses- 
 sion of the carrier was not only out of his control, but beyond his 
 knowledge, and where, with his limited means of acquiring know- 
 ledge, it would be out of his jjower to learn what was done or 
 left undone in respect to it; and this was the reason why the 
 carrier had been usually held to very strict responsibility in respect 
 of property entrusted to him. This rule, under the circumstances, 
 would not seem to b(^ unjust, or hostile to the best interests of 
 society. 'J'lur power is with the currier, and on him should rest 
 the resiioiisiliility. (Jreat care should be taken in adopting mca-
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 451 
 
 sures which would tend to exempt the shipowner from resjoonsibility, 
 or greatly to diminish the responsibility to which he had hitherto 
 usually been held. The goods might often be hundreds and even 
 thousands of miles from the consignor, and in course of transitus^ 
 in places of which he had no knowledge, and in the care and con- 
 trol of the servants of the carrier, over whose selection he could 
 
 t 
 exercise no influence, and of whose trustworthiness he could know 
 
 nothing, but whose employment was by the shipowner, and whose 
 trustworthiness should be known to him. It was therefore to 
 the highest degree in the interests of society at large that those 
 general principles of law should be applied, by which carriers are 
 responsible for the due delivery of goods committed to their charge, 
 and the responsibility would be only commensurate with the ob- 
 ligation. The question where to fix the precise line at which this 
 responsibility should end was a difficult one ; but in fixing the line 
 it should be borne in mind that the carrier and his agents are on 
 the spot, and that it is their duty and business to select the men 
 who are to navigate the vessel and take charge of the property. 
 The presumption of law should therefore be in favour of protecting 
 the helpless against the powerful, those who are not in a position 
 to look after their own interests against those who are, and we 
 should be very slow to limit the carriers' liabilities. It is a uni- 
 versal principle of law, and is the law of nature, that every man is 
 responsible for his own acts, and that every man who acts by 
 another in effect acts by himself, is bound for the acts of the 
 persons he employs — bound for their diligence, their honesty, and 
 their capability. The carrier ought to be responsible, with very 
 few exceptions, for that which he undertakes to do for the shipper, 
 and this general rule was a very necessary one for the general in- 
 terests of commerce. He hoped the conference would not thought- 
 lessly or lightly do anything to relax that responsibility. 
 
 In reply to the criticisms of my amendment, I said that it was 
 not with regard to great companies, like the North German Lloyd 
 and the Cunard, that such a provision was necessary : it was with 
 regard to the innumerable smaller shipowners, owning only two or 
 three steamers apiece. The carelessness with which these steamers 
 were sometimes managed, especially in the selection of ofticers and
 
 452 MAEITIME LEGISLATION. 
 
 crew, was simply indescribable, as I could testify from tlie ex- 
 perience of many years during which it had been my duty to 
 investigate the causes of accidents. In England this was en- 
 courao-ed by the state of the law, by which vessels could be insured 
 for far more than their real value, and of this I gave an illustra- 
 tion which had lately occurred in my own practice. I proposed 
 that the vote should be taken on the general principle in question, 
 leavino- the precise wording of the rules to be dealt with by a 
 committee to be subsequently appointed. 
 
 Consul Meier entreated the assembly not to pronounce a one- 
 sided judgment on the question : such a decision could not possibly 
 lead to any result. He advocated the adoption of Eule I. of the 
 Hamburg Chamber of Commerce. 
 
 Herk Laeisz also preferred the proposition contained in Rule I. 
 of the Hamburg Chamber of Commerce. He pointed out that the 
 shipowner's exemption from liability for unseaworthiness, in cases 
 of latent defect, where he had done all that was reasonably possible 
 to secure seaworthiness, was omitted from Rule I. of the form now 
 under discussion. 
 
 The President said that the general principle was now under 
 discussion : any question as to the form of the rules could be dis- 
 cussed afterwards. 
 
 M. Le Jeune supported my amendment. He pointed out that 
 there had long been a limitation of the liability of carriers by sea 
 as compared with can-iers by land, it having been recognised by 
 the legislation of all countries that the former could not be held 
 responsible to the same extent as the latter, on account of the 
 greater difficulty they had in controlling the actions of their 
 servants. But it was necessary to distinguish between the dif- 
 ferent degrees of negligence on the part of the crew, between the 
 culpa lata and the cuIjm levis. For the former the shipowner 
 ought to be answerable, but it was reasonable that he should be 
 allowed to contract himself out of liability for the latter. He 
 accepted the amendtucnt as a reasonable expression of this dif- 
 ference, and he thought it would bo uni'easonable to go further in 
 making the shipowner liable. He stated that the most recent 
 decisions of llic Tribunal dc Coniincrco at Antwerp had refused to
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 453 
 
 recognise the validity of clauses in bills of lading by which ship- 
 ownei-s had sought to protect themselves from responsibility for 
 the negligence of their servants, on the ground that such an 
 exemption was contrary to public policy. 
 
 Dr. Franck considered that, from a legal point of view, ' error 
 of judgment' was included in 'default,' and he held it to be 
 illogical to attempt to separate the two. He repeated his opinion 
 that the words ' act, neglect, or default,' should be altogether 
 struck out. 
 
 The President announced that he proposed in the firet instance 
 to put the question, ' Ought the shipowner to be allowed to pro- 
 tect himself, by a clause in the bill of lading, from liability for 
 negligence on the part of the captain, officers, and crew?' and, 
 secondly, if this should be carried in the negative, ' Ought he to 
 be allowed to protect himself against errors of judgment on their 
 part ? ' He at the same time repeated that the vote was only 
 taken on the principle, salva redactione. The vote on the first 
 question showed a majority of 24 votes to 17 in favour of the 
 proposition that the shipowner be not allowed to protect himself 
 against negligence. The second question, whether the shipowner 
 should be allowed to protect himself against errors of judgment, 
 having then been put, was decided in the affirmative by a majority 
 of 23 to 7. 
 
 Rule 1 of the committee's draft Code of Affreightment was then 
 passed, the words ' error of judgment ' having been substituted for 
 
 * act, neglect, or default,' and the words ' the Queen's,' having been 
 struck out before ' enemies.' 
 
 On Rule 2, Herr Aiilers thought it important that the word 
 
 * fire ' should be inserted, as, according to English law, fire was not 
 considered a ' peril of the sea.' 
 
 I then proposed that, before going farther with the discussion, 
 the conference should appoint a small committee consisting of the 
 President, Herren Ahlers and Duncker, Judge Peabody, and Dr. 
 Rahusen, to settle the wording of the rules in conformity with the 
 votes already taken, and to report to a future sitting. 
 
 Dr. Rahusen suggested that the report should be presented to
 
 454 MARITIME LEGISLATION. 
 
 the next conference of the Association, in a year's time, so as to 
 afford opportunity for a deliberate and careful revision. 
 
 I informed the meeting that I thought the committee, if now 
 appointed, would be able to bring in its report on Friday. 
 
 The President supported my proposal. 
 
 Heee Laeisz pointed out that there were still a number of 
 important questions of principle to be discussed, as, for instance, 
 that of pro rata freight, and thought it would be premature now to 
 appoint a committee of revision. 
 
 I replied that, on the question of pro raid freight, the decision 
 of the Berne conference * must be taken as conclusive, and that 
 this subject could not now be reopened. 
 
 Consul Meier supported the proposition of Dr. Rahusen. 
 
 M. Engels reminded the assembly that at Liverpool it had 
 been found possible to go through all the points one by one. 
 
 My proposition was then put to the vote and rejected by a 
 large majority. 
 
 The discussion on Rule 2 having accordingly been resumed, 
 
 Herr Ulrich objected to the retention of the word ' ice ' in 
 the rule. 
 
 Herr Laeisz then proposed that the discussion on this subject 
 be adjourned till to-morrow morning; the conference meanwhile 
 jiroceeding with its other business, as the code now under dis- 
 cussion had been only recently placed in the hands of members. 
 
 Herr Ahlers asked whether the committee had prepared any 
 statement of reasons in support of the code, there being no one 
 present to state the reasons on behalf of the committee. 
 
 I explained that the code had been prepared, on behalf of the 
 committee, by its secretary, Dr. Stubbs, who was unfortunately 
 prevented from being present. 
 
 Herr Aiilers tlien proposed that the discussion should proceed 
 on the basis of the Hamburg Chamber of Commerce rules. 
 
 Consul Meier was also in favour of this course, and of the 
 adjournment of the debate. 
 
 It was accordingly agreed that the debate should be adjourned, 
 
 ' See note at p. .^29.
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 4.>5 
 
 On Thursday, August 20, the conference reassembled at 10 
 A.M., Dr. Sieveking presiding, when the discussion on bills of 
 lading was resumed, and tlie President suggested that it should 
 be resumed on the basis of the rules prepared by the Hamburg 
 Chamber of Commerce, as this seemed to be the wish of most of 
 the members. 
 
 Herr Laeisz dt-sired, as Dr. Stubbs's draft appeared now to be 
 laid aside, to propose that the conference should not be considered 
 in any way prejudiced by the decisions of yesterday. Otherwise a 
 false impression would be produced outside as to the result of the 
 conference's labours. 
 
 The President, however, stated that the votes taken yesterday 
 must be considered decisive. Only questions of principle would 
 at the present stage be voted upon ; all questions merely affecting 
 the precise wording of the rules, or their consistency inter se^ and 
 with the resolutions previously arrived at, being referred to a 
 committee of revision, to be appointed later on. 
 
 On Ilule 2 of the Hamburg Chamber of Commerce draft. Dr. 
 Rahusen asked for an elucidation of the phrase ' common theft;' 
 An explanation having been given by the President, the matter 
 was left for the consideration of the committee. 
 
 Herr Ulrich pointed out the importance of observing the 
 difference between the various causes of fire, which might be 
 occasioned by vis major, by negligence, or by error of judgment. 
 He also thought the expression ' laud damage ' by no means 
 sufficiently clear. 
 
 Herr Ahlers explained that ' land damage ' was intended to 
 mean such as would not be externally discoverable. 
 
 Dr. Wolffson thought ' land damage ' should be omitted. 
 ' Barratry ' would also have to be omitted, in accordance with the 
 decision arrived at yesterday. And at the end of the rule words 
 should be added to the expression ' prolongation of the voyage ' to 
 show that its prolongation by sea was meant. The word ' unsea- 
 worthiness ' also was too general. 
 
 Dr. Fi{AN'CK wished the insertion of the word ' unless ' instead 
 of ' even though ' after ' accidents of navigation.' 
 
 The conference ap:reed, without a division, to the omission of
 
 456 MARITIME LEGISLATION. 
 
 the words 'land damage.' Tlie other points raised by different 
 speakers were left to the committee of revision, and the rule was 
 passed, subject to such revision. 
 
 On Rule 3, Consul Meier desired the substitution of the 
 words ' any other vessel ' for ' any other steamship,' as he thought 
 the shipowner ought to have liberty to tranship into a sailing ship, 
 for the completion of the voyage, if no steamer was available. 
 
 Here Ahlers explained that the rule under discussion was 
 only intended to apply to steamers. 
 
 Herr Ulrich pointed out that the rule differed from the 
 second paragraph of the New York Produce Exchange Bill of 
 Lading, by the insertion of ' liberty to call at any intermediate 
 ports,' which he thought ought not to be permitted. Such a per- 
 mission ought only to be given by a special clause in special cases, 
 not by the common form. 
 
 Herr Ahlers replied that in this respect the rule was inter- 
 mediate between that of the New York Produce Exchange and 
 that of the Liverpool conference, under which the permission was 
 not confined to ' intermediate ' j^orts. As a matter of fact, the 
 great lines made no use of this permission, but the owners of 
 general steamers would always require its insertion. 
 
 Dr. Raiiusen objected to the vagueness of the word 'inter- 
 mediate,' and wished the clause struck out. 
 
 Hekr Ahlers pointed out, in reply, that it was often impos- 
 sible for the owner of a general ship to know beforehand at what 
 intennediate ports his vessel would call, as this would depend upon 
 the cargo he might be able to secure. A decision to strike out the 
 permission would have no practical result, as it would be necessary 
 always to insert the clause. 
 
 Consul ^Ieier ho])ed the clause would be retained, and pointed 
 out its ]iractic;il utility, lie tlitl not think there would be any 
 ri'ul (lifliciiity in (li'tciiiiiiiing what was an intermediate port. 
 I'hus, on a voyage from Sydney to Hamburg, Antwerp would, but 
 Trieste would not, be an interniediate port. 
 
 Dr. Rahusen explained that he did not wish to prohibit such 
 a liljci't y wlici'c there was some reason for inserting it ; but, unless 
 it were expressly reserved, the sliip[)cr ought to be entitled to
 
 INTERNATIONAL LAW OF AFFREIGHTiMENT. 457 
 
 assume that tlie sliip would sail direct to tlic port of destina- 
 tion. 
 
 The Pkesident pointed out that the rules were not intended 
 all to be obligatory, but that, according to the matters to which 
 they related, some would necessarily be optional, so as to take 
 effect only in the absence of agreement to the contrary. 
 
 M. Engels thought no shipowner would order his ship to call 
 at any intermediate port without some sufficient reason. He 
 desired the retention of the clause. 
 
 Dr. Fraxck seconded Herr Ulrich's motion entirely to omit 
 the liberty of calling on the voyage, which was, however, lost by a 
 large majority; only 7 votes being recorded in its favour. 
 
 Dr. Rahusen's motion to omit the words ' intermediate ports,' 
 having been seconded by Herr Ulrich, was then put, and was 
 also rejected by a large majority, only G voting for it. 
 
 Dr. Voigt proposed the omission of the words ' to sail without 
 pilots,' on the ground that such a liberty would be contrary to the 
 law, which in many cases imposed penalties on vessels sailing 
 without pilots, and also contrary to public policy. 
 
 In reply to the President, Dr. Voigt said he did not wish that 
 the conference should adopt a resolution prohibiting the insertion 
 of such a power, but he desired that it should not be contained in 
 the model rules to be adopted. 
 
 Consul Meier pointed out that the captains of liners were often 
 as well acquainted with the navigation of the coasts they were ac- 
 customed to as any pilot ; as, for instance, in the case of steamers 
 crossing every week between London and Hamburg. In cases like 
 this, practical considerations should override the letter of the law. 
 Often, when a pilot could not be found at the mouth of the Elbe, 
 a Heligolander was taken on board as pilot, and this, in the 
 speaker's opinion, was really more dangerous than to sail without 
 a pilot at all. 
 
 Herr Ahlers was of the same opinion. It was not merely a 
 question as to the prescriptions of German law, which were cer- 
 tainly very clear and express, but as to those of other States. He 
 referred particularly to a decision of the highest tribunal in England,
 
 4o8 MAIUTIME LEGISLATION. 
 
 which had held that under certain circumstances it was not an act 
 of negligence to sail without pilots. 
 
 Dr. Kahusen agreed with Dr. Voigt. So far as regular liners 
 were concerned he could agree with Herr Meier, but the rules now 
 under consideration were intended for all kinds of ships, and under 
 such a clause other vessels, whose captains were not similarly quali- 
 fied, would have a dangerous liberty conferred upon them. He 
 seconded the amendment. 
 
 Herr Ad. AVoermann objected to the amendment, and pointed 
 out that pilotage was not everywhere compulsory by law. In 
 many parts of the world there were no pilots to be had, whilst on the 
 African coast and in the East Indies they were generally natives, 
 who did not at all answer to European ideas of a pilot, and to whom 
 it would be out of the question to commit the supreme direction of 
 the vessel. In the waters of civilised countries the captain was 
 already compelled by law to employ pilots, and in other places it 
 was often very difficult to ascertain whether any real pilots, in 
 the European sense, were to be had. He wished the clause to be 
 retained. 
 
 I also opposed the amendment, which I considered contrary to 
 the spirit of the previous day's decision, but I thought it should 
 be made clear that it would be negligence not to employ a pilot, 
 whenever, under all the circumstances of the case, it was proper to 
 do so. 
 
 Dr. "VVolffson reminded the conference that the clause under 
 consideration would only apply to the relation between the ship- 
 owner and the shipper or cargo-owner. It would, of course, be im- 
 possible for the shipowner to liberate himself from liability in his 
 relations with the public at large, by means of a clause in his bill 
 of ladiner. The meaiiintjr of the clause he understood to be that the 
 fact of not having employed a pilot should not, of itself, be consi- 
 dered as proof of default on the part of the captain. 
 
 Herr Aiilkrs pointed out that the clause was supported by the 
 German law, which does not in all cases impose the necessity of 
 pilotage. 
 
 Dr. Voigt, in reply, defended his amendnicnt, which was 
 rejected by a lai'gc niajority, only 5 voting for it.
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 450 
 
 Dr. Wolffsox then proposed that the revision committee 
 should be instructed to add to the rule words distinctly showing 
 its meaning to be that it should not be considered negligence 
 not to take a pilot unless the particular circumstances of the case 
 required it. 
 
 Hehr ]\[kier seconded the proposal, which was adopted by 18 
 votes to 17. Rule 3 was then adopted, subject to this modification. 
 
 Rule 4 was passed without objection. 
 
 On Rule 5, Herr Ulrich asked whether by this clause, in 
 accordance with the German Commercial Code, a declaration of 
 both the value and the nature of the articles would be required. 
 
 Herr Ahlers having replied in the affirmative, the rule was 
 adopted nem. con. 
 
 On Rule 6, Herr Ulrich did not consider the rule went far 
 enough, as it ought to be extended so as to provide against the • 
 danger to other goods shipped in the same vessel. 
 
 Herr Ahlers thought that such protection was already given 
 by the legislation of every country, and need not be put into the 
 bill of lading, which constituted a contract only between the ship- 
 owner and the shipper of goods. 
 
 I thought it should be required that dangerous goods be clearly 
 marked as such on the outside, and suggested that the committee 
 should consider the wording of the rule with this view. 
 
 Herr Woermann was of the same opinion, but thought the 
 words ' shipped with full disclosure of their nature ' sufficiently 
 covered the point. 
 
 Herr Ulrich's proposition was withdrawn, and the rule passed, 
 subject to revision. 
 
 On Rule 7, Dr. Rahusen pointed out that it was not sufficiently 
 clearly expressed that the shipowner was entitled to pay the amount 
 of fines or damages, and claim reimbursement from the consignee, 
 or, failing payment by him, from the shipper. The observa- 
 tion was referred to the committee of revision, and the rule 
 adopted. 
 
 On Rule 8, Dr. Stammann (Hamburg) objected to the form of 
 the rule, and desired the addition of words to show that the date 
 of signature of the bill of lading was tlie moment from which the
 
 4G0 MARITIME LEGISLATION. 
 
 sliipoTvuer's responsibility for the goods would begin and the 
 shipper's would cease. 
 
 Here Ahlers objected to such an addition, and pointed out 
 that bills of lading often had to be ante-dated or post-dated. 
 
 Dk. Stammaxn replied that he did not object to the rule of 
 German law on the subject, but contended that it was at all events 
 necessary to lay down in the rule that the bill of lading could not 
 be signed, so as to make the shipowner liable, before loading 
 began. 
 
 Consul Preuss opposed the addition, which would be entirely 
 inapplicable to the custom at Konigsberg, by which cargoes are 
 loaded from lighters. Such an addition would run counter to 
 everyday practice. 
 
 Dr. Kahusex agreed with Herr Ahlers. Bills of lading ought, 
 above all things, to be strictly truthful, and such an addition as 
 proposed would often be opposed to the facts of the case. In 
 Holland the expression in use was, ' Received, for the purpose of 
 being loaded.' 
 
 The amendment was not put, for want of a seconder, and the 
 rule was adopted. 
 
 Rules 9 and 10 were passed, the latter subject to some observa- 
 tions with regard to the precise wording. 
 
 On Rule 11, Herr Suckau thought the rule unnecessary. He 
 inquired whether, in conformity with German law, full freight 
 would be payable for liquids absorbed by the remainder of the 
 cargo. 
 
 Herr Ahlers said that there was a diversity in the laws of 
 different countries on this point, and the Chamber of Commerce 
 had decided against adopting the rule of German law. 
 
 Dr. Fj{ANCK proposed the addition of the words ' liquids 
 excepted.' 
 
 M. Engels inquired whcllicr fiill freight was also to be paid 
 on grains and other goods which had increased in weight by the 
 absorption of moisture. To him, as a shipowner, such a provision 
 could only be agreeable. 
 
 IIkhr Attlhrs stated that th<> rules were purposely silent on 
 this point, as it was a question to be decided on the facts of each
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 4G1 
 
 particular case. The object of tlie rule was simply to exclude the 
 right of abandonment of damaged goods given by the German 
 law. 
 
 The Pkesident thought it would be desirable to lay it down 
 distinctly that the right of abandonment of damaged goods for 
 freight is excluded, and would, if the rule were adopted, direct the 
 committee to revise it in this sense. 
 
 Herr Suckau having proposed that the right of abandonment 
 of damaged goods against freight be retained, which was seconded 
 by Dr. Franck, this proposal was rejected by 21 votes against 
 11, and the principle of the rule, as stated by the President, was 
 accepted. 
 
 Eule 12 was adopted without discussion. 
 
 On Kule 13, Herr Ulrich considered that the lien ought also 
 to extend to contributions in respect of General Average, and 
 desired that a clause to this effect should be added to the rule. 
 
 Herr Ahlers expressed approval of this suggestion. 
 
 M. Engels also supported the proposal. 
 
 The proposition was accepted, and referred to the committee to 
 carry out. 
 
 On Rule 14, M. Engels thought there was some inconsistency 
 between it and Rule 13, but on explanations being given, the rule 
 was adopted. 
 
 On Rule 15, Dr. Rahusen thought some indication should be 
 inserted as to the mode of ascertaining the market price at the 
 port of destination. 
 
 Herr Ahlers thought this must be left to the laws of the 
 different countries in which the valuation would have to be made. 
 
 Dr. Rahusen suggested the insertion, for the sake of clearness, 
 of the words ' freight and ' before ' all charges saved.' The sugges- 
 tion was unanimously accepted, and the rule passed with tliis 
 modification. 
 
 On Rule 16, Dr. Rahusen asked what was the precise moaning 
 to be attached to the words ' unless expressly recognised.' 
 
 Herr Ahlers replied that the effect of the clause ' weight, 
 measure, quality, contents, and value unknown ' was to shift the 
 burden of proof, and it was thought necessary to show that the
 
 462 MARITIME LEGISLATION. 
 
 presumption in favour of tlie shipowner was not to be rebutted by 
 the mere fact that they were mentioned in the bill of lading. On 
 the other hand, the parties were to remain free to enter into a 
 special contract. 
 
 Dr. Fraxck thought the whole clause ought to be omitted. 
 
 Dr. C4EXSEL stated that merchants residing inland complained 
 greatly of this clause, which often stood in the way of their obtain- 
 ing: redress for losses sustained by them. He desired that 
 captains should be compelled to measure and weigh goods delivered 
 to them. 
 
 Herr Ahlers replied to Dr. Franck that the rule only ex- 
 pressed a stipulation which had already become universal. No 
 shipowner would be willing, considering the different countries in 
 which goods were received, to undertake the responsibility for 
 weight, &c. 
 
 Dr. France's proposal to omit the rule was seconded by Herr 
 SuCKAU, but was lost, only 3 voting for it. 
 
 Dr. Gensel thereupon declined to make a formal motion in 
 support of his view. 
 
 Herr Steinacker expressed his accord with Dr. Gensel's 
 views, and desired that a resolution embodying them should be 
 adopted. 
 
 Herr Woermann pointed out that captains had not usually 
 time to undertake such duties as were proposed to be cast upon 
 them. He strongly opposed the idea. 
 
 The rule was then adopted without further objection. 
 
 C)n Rule 17, Dr. Fijanck preferred its omission, on the ground 
 that the York- Antwerp llules were often equivocal. 
 
 I replied to this objection, but for want of a seconder the 
 motion was not put, and the rule was adopted. 
 
 On I'lile 18, Dr. Rahusen remarked lliat the words 'freight 
 to be paid on delivery ' ought not to exclude the right of stipu- 
 lating for post-payment of freight. 
 
 Herr Woermann wished the insertion of words making it per- 
 missible to stipulate in the bill of lading for payment in any 
 currency therein indicated. 
 
 Hki{R Aiieers re])lied to Dk. Kaiitskn that the words 'on
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 4G3 
 
 delivery ' were only intended to negative the English custom, by 
 which a fortnight or a month was often allowed for payment of 
 freight. 
 
 Herr Woermann's proposal was accepted, and the rule was 
 passed, subject to an addition to that effect to be made by the 
 committee. 
 
 Pjio IIata Freight. 
 
 The rules having thus been completed, Herr Ahlers said the 
 Hamburg Chamber of Commerce had decided not to insert any 
 provision with regard to pro rata freight, but simply to raise the 
 question whether such a provision should l)o introduced by the 
 conference or not. In case the conference should desire to insert 
 any such provision, he would recommend its adoption of Ilules 10 
 and 11 of the form adopted by the Liverpool conference.' 
 
 Dr. Rahusen thought it inadvisable to discuss the question at 
 present. 
 
 Dr. Wolffson was also decidedly opposed to its discussion, 
 which he thought impracticable at the present conference. 
 
 I hoped the conference would decide that |)?-o rata freight ought 
 not to be allowed at all, and drew attention to the decision to that 
 effect of the Berne conference.^ 
 
 ^ The following are the rules referred to : — 
 
 10. If the ship is able to carry the goods to their destination, but the 
 goods, by reason of damage sustained or of their own nature, are not fit to be 
 carried all the way, and if such goods have received an enhancement of value 
 by reason of their partial carriage, the ship shall be entitled to a jjro rata 
 freight in proportion to the distance performed, which fx-eight is in no case 
 to exceed the amount of such enhancement of value. Pro rata freight is 
 admissible in no other case than that dealt with in the preceding sentence, 
 unless there be an acceptance of the goods by the shipper or owner of the 
 goods. 
 
 11. AYhen the goods are fit to be carried to their destination, but the ship 
 is unable to carry them, the shipowner may earn full freight by sending the 
 goods to their destination at his own expense within reasonable tune in 
 another bottom : this right is not affected by an abandonment of the sliip by 
 her crew or to the underwriters : and the ship is to be, for tliis purpose, 
 deemed unable to carry the goods to their destination, if she either cannot be 
 repaired at all, or cannot be repaired except at an expense exceeding her value 
 when repaired. 
 
 - The following resolution was adopted at the Berne conference of the 
 Association, 1880 ('Report,' pp. 124 to 127) by 15 votes against 3 : — 
 'That freight ^Jro raid itincris i^cracii should be abolished.'
 
 4G4 MARITIME LEGISLATION. 
 
 Herr Suckau was opposed to the introduction of a rule on jyo 
 rata freight, as he feared that its insertion might prove a hindrance 
 to the general adoption of the rules. 
 
 Here Laeisz was also opposed to such a rule, and pointed out 
 that the Berne resolution, referred to by Dr. Wendt, could no 
 longer be considered binding, as the Liverpool conference had 
 come to a contrary decision. 
 
 The question whether any rule on the subject should be inserted 
 
 having been put to the conference by the President, only two votes 
 
 were given in favour of that course, and the subject accordingly 
 
 di'opped. 
 
 Eesponsibility for Negligence. 
 
 CoxsuL Meier wished to make a suggestion, now that the rules 
 had all been gone through, with the view of making them generally 
 acceptable. He thought it might with some justice be contended 
 that the shipowner, having the j)ersonal selection of the captain, 
 ought to be responsible for his negligence, and to this extent he 
 would be willing to accept yesterday's decision on the question. 
 But it seemed to him preposterous to lay down that the sbij^owner 
 Avas to be responsible for the acts of the officers and crew, about 
 whom he could personally know very little, often nothing at all, 
 and who were frequently engaged in distant ports where the 
 captain might have to fill up his crew as best he could, with almost 
 no choice. He wished therefore to suggest as a compromise that 
 the decision of yesterday should be modified to this extent, as he 
 felt sure that if the rules were passed as they at present stood on 
 this point they would have no chance of acceptance by shipowners, 
 and the work of the conference would go for nothing. 
 
 The I'ltESiDENT pointed out that the decision arrived at yester- 
 day could not be modified to-day, and he could not allow it to be 
 again brought into question. 
 
 Consul Meier then expressed his willingness to withdraw the 
 proposal, in deference to the President's ruling. 
 
 I said that, as mover of the resolution adopted yesterday, I 
 should be willing to accept Consul Meier's proposal so far as it 
 concerned the crew, but I did not ililid-; it admissible with regard 
 to the (jflicers any more iiian the ciqitain.
 
 INTERNATIONAL LAW OF AFFKEIGIITMENT. 405 
 
 The President said that, if a compromise acceptable to both 
 parties could bo arrived at by the conference, nothing would be 
 more desirable, and there would be no objection to a modification 
 under such circumstances. But, uidess this was the case, he could 
 not allow the decision of yesterday to be modified by, perhaps, a 
 small majority on the other side to-day. 
 
 M. Engels protested against the owner being held responsible 
 even for tlie negligence of the captain, whilst he agreed that to 
 make them responsible for their crews was simply preposterous, and 
 he was sure that the resolution of the conference could not, on that 
 account, ever take effect. He pointed out that such responsibility 
 was not excluded by the New York bill of lading, which had been 
 prepared by the shippers themselves, who certaiidy knew what the 
 shippers' interests were. 
 
 Consul Meier submitted that the bill of lading should be read 
 a second time, and that it would be competent to insert modifica- 
 tions on the second reading. 
 
 Herr Ulrich was decidedly opposed to reopening the question 
 in any form. The decision of the conference had already been 
 published in the press and gone out into the world, and it would 
 seriously affect the reputation of the Association if it were now 
 varied. Moreover, some delegates who took a special interest in the 
 question had gone home, supposing it to be finally settled, and it 
 would be unfair to them to alter the decision. 
 
 The President said that it was evident, after what had been 
 said, that there was no prospect of arriving at a compromise ac- 
 ceptable to all parties, and he must therefore decline to allow the 
 question to be further discussed. The Association did not recognise 
 any second reading. 
 
 The committee of revision was then appointed, consisting of 
 the President, Herr Ahlers, Dr. Rahusen, Judge Peabody, and Herr 
 Ulrich. 
 
 On Friday, August 21, the conference reassembled under the 
 presidency of myself, when 
 
 Dr. Sieveking presented, on behalf of the committee of re- 
 vision, the l)ill of lading and rules as revised by them. They 
 were as follows : — 
 
 ]I 11
 
 4fiG MARITIME LEOISLATIOX. 
 
 :Mor)EL Bill of Lading (as brought ix ry the Committee 
 OF Revision). 
 
 Shipped, in apparent good order and condition, on board the 
 ship whereof is master for the present voyage , now 
 
 Ivino- in the port of and bound for , being marked and 
 
 numbered as per margin, to be carried and delivered at the port of 
 unto or order on his paying freight for the said 
 
 goods at the rate of 
 
 Subject to all the conditions of the Hamburg Rules of 
 Affreightment. 
 
 In witness whereof the master of the said ship has signed 
 bills of lading, all of this tenor and date, one of which 
 being accomplished the others to stand void. 
 Dated at , 188 . 
 
 (Signed) Master. 
 
 Hamburg Rules of Affreightment. 
 
 The shipowner shall be responsible that his vessel is properly 
 equipped, manned, provisioned, and fitted out. and in all respects 
 seaworthy and capable of performing her intended voyage, and 
 for the stowage and right delivery of the goods. He shall also be 
 responsible for the barratry, faults, and negligence, but not for 
 errors in judgment, of the master, officers, and crew. 
 
 11. 
 
 The shipowner shall not be resi)onsible for loss or damages 
 arising from vis majo}\ public enemies, civil commotions, pirates, 
 robbers, fire, explosion, bursting of boilers, breakage of shafts or 
 screws, nor for any latent defect in hull or machinery (not result- 
 ing from want of due diligence by the owner, husband, or manager 
 of the ship), nor for the cargo's decay, putrefaction, rust, sweat, 
 change of character, drainage, leakage, breakage, or any damage 
 arising from the nature of the goods shipped, or such defective 
 packing as could not be iKjticed oxtci-iially. nor for tlie obliteration
 
 INTEUNATIOXAL LAW OF AFFIIEIGIITMICXT. -J07 
 
 of marks, numbers, addresses, or descriptions of goods shipped, 
 nor for any damage or loss caused by accidental prolongation of 
 the voyage, nor for other accidents of the seas, unless it is proved 
 that such exception comes under iliile I. 
 
 III. 
 
 Steamship to be at liberty to call at any intermediate ports, to 
 sail without pilots, provided such sailing does not constitute a 
 fault or negligence, to tow and assist vessels in distress, and to 
 deviate for the purpose of saving life or property ; also at liberty, 
 in case the ship shall put into a port of refuge for repairs, to tran- 
 ship the goods to their destination by any other vessels, and at 
 liberty to convey goods in lighters to and from the ship at shipper's 
 risk, but at ship's expense. 
 
 IV. 
 
 Quality-marks, if any. to be of the same size as and contiguous 
 to the leading marks ; and if inserted in the shipping notes ac- 
 cepted by the mate, the master is bound to sign bills of lading 
 conformable thereto. 
 
 V. 
 
 Ship not accountable for gold, silver, bullion, specie, docu- 
 ments, jewellery, works of art, or other precious articles, unless 
 bills of lading are signed therefor with the value therein ex- 
 pressed, and a special agreement be made. 
 
 VI. 
 
 Shipper accountable for any loss or damage to ship or cargo 
 caused by inflammable, explosive, or dangerous goods, shipped 
 without full disclosure of their nature, whether such shipper shall 
 have been aware of it or not, and whether such shipper be prin- 
 cipal or agent ; such goods may be thrown overboard or destroyed 
 by the master or owner of the ship at any time without compen- 
 sation. 
 
 VII. 
 
 Shipper and consignee to be responsible tor all fines or 
 damages which the ship or cargo may incur, or suffer, by reason
 
 408 MARITIME LEGISLATION. 
 
 of incorrect or insufficient marking of packages or description of 
 
 their contents. 
 
 VIII. 
 
 Goods delivered to the ship, whilst on quay awaiting shipment, 
 to be considered as taken on board, as far as the shipowner's 
 responsibility is concerned. 
 
 IX. 
 
 Goods once shipped cannot be taken away by the shipper 
 except upon payment of full freight, and compensation for any 
 damages sustained by the shipowners through such taking away. 
 
 X. 
 
 In case the ship shall be prevented from reaching her destina- 
 tion by quarantine, blockade, ice, or the hostile act of any Power, 
 the master or owners may discharge the goods into any depot or 
 lazaretto, or at the nearest convenient port ; the shippers and 
 consignees to be responsible for all expenses thereby incurred upon 
 
 the goods. 
 
 XI. 
 
 No goods can be abandoned for freight. This rule does not 
 applv to liquids. 
 
 XII. 
 
 If the goods be not taken by the consignee without delay, or 
 within such time as is provided by the regulations of the port of 
 discharge, they may be stored or discharged into hulks or lighters 
 by the master at the expense and risk of their owners ; provided 
 always, that due notice is given of the arrival of the ship and the 
 commencement of the discharge, and that the same does not begin 
 at night or at any unreasonable hour. 
 
 XIIT. 
 
 Ship to have a lien on all goods for payment of freight and 
 charges, including dead freight, demurrage at the port of destina- 
 lion, forwarding charges, charges for carriage to port of shipment, 
 :in(l thr' fines, damages, and expenses mentioned in I^ules VII.
 
 INTEUNATIONAL LAW OF AFFEEIGHTMENT. 4(39 
 
 and X., and for General Average claims, and to be entitled to re- 
 cover from the shipper the difference between the amount of freight 
 stipulated in the bill of lading and the proceeds of the goods, 
 should the freight not be paid otherwise, 
 
 XIV. 
 
 To the extent of the value of the lien, freight, which by the 
 terms of the bill of lading is made payable by the consignee, can- 
 not be demanded from the shipper after the master has parted with 
 his lien on the goods. 
 
 XV. 
 
 In the event of claims for short delivery when the ship reaches 
 her destination, the price to be the market price at the port of 
 destination on the day of the shijs's entry at the custom-house, less 
 freight and charges saved. 
 
 XVI. 
 
 Weight, measure, quality, contents, and value, although men- 
 tioned in the bill of lading, to be considered as unknown to the 
 master, unless expressly recognised and agreed to the contrary. 
 Simple subscription not to be considered as such agreement. 
 
 XVII. 
 
 General Average to be paid according to York and Antwerp 
 Rules. 
 
 XVIII. 
 
 Freight, if payable on delivery, to be paid immediately after 
 delivery, and in the currency stipulated in the bill of lading, or at 
 consignee's option in cash, without discount, at the rate of exchange 
 of bankers' bills at sight current on the day of the ship's entry at 
 the custom-house. 
 
 XIX. 
 
 Nothing contained in these rules is to be construed so as to 
 authorise an argument to the contrary. 
 
 The form was then again gone tlirungli and read elau.se by 
 clause.
 
 470 MARITIME LEGISLATION. 
 
 On the form of bill of lading being read, Hekk Laeisz objected 
 to the title ' Hambui-g Rules of Affreightment,' and wished the 
 name ' International " to be given them instead. As the rules were 
 entirely contrary, on a main point, to those proposed by the Ham- 
 bun' Chamber of Commerce, he thought the title calculated to 
 convey a wrong impression. 
 
 Dr. Sievekincj pointed out that the word ' International' would 
 not be distinctive, and said that the committee had thought it 
 desirable to adopt some title which, like that of the ' York and 
 Antwerp Kules ' on General Average, might soon become universally 
 adopted and understood. 
 
 Herr Woermann also strongly objected to the word ' Hamburg ' 
 in the title. 
 
 Dr. Franck hoped the title would be retained. 
 
 On a show of hands, the title was adopted by a large nmjority. 
 
 On Rule 2. Consul Preuss desired the omission of the words, 
 ' or such defective packing as could not be noticed externally.' 
 The proposal was novel, and would be far-reaching in its results. 
 
 Dr. Sieveking pointed out that the proposal was in conformity 
 with the prescription of the German Commercial Code. 
 
 Herr Laeisz desired the addition of the words ' with due care ' 
 before ' be noticed externally.' 
 
 Dr. >SiEVf:KlNG replied that the counnittee had not thought it 
 necessary to be more pri'cise than the German Code, the meaning 
 of which was well understood. 
 
 Herren Preuss and Lakisz thereupon withdrew their ob- 
 jections. 
 
 On Kiile o, Herr Wukk.mann asked whether it might not be 
 inferred from the mention of steamships in this rule that the rules 
 were not intended to a])])ly to sailing vessels. 
 
 J)R. SiE\EKiN<i i-eplied Ijy referring to Rule 1 !», as excluding 
 any such inference. 
 
 IIkiu; JiAEisz wished tlie w(u-(ls ' by any conveyance " to be 
 substituted for ' by (itlier vessels." 
 
 Dr. Sli;VKKI.\(i p')inted out tlie exlremely wide bearing of such 
 jin arncndiiient. wliicii woiihl jidiiiit oft lie trunslni^si(lu of goods l»y 
 railway across the contiMciil of I'ini'ope.
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 471 
 
 Herr Laeisz witliLlrew the proposal. 
 
 Oil Rule 8, M. Engels objected that this was not in accordance 
 with the decision of the conference yesterday, but after some ob- 
 servations from Dr. llAHrsKN and Dr. Sikvekinc;, theoljjection was 
 not pressed. 
 
 Some remarks were made on Rule 11 by Dr. GCtschow, but no 
 amendment was proposed. 
 
 On Rule 18, Dr. Martin pointed out that the words ' freight if 
 payable on delivery to be payable immediately after delivery ' were 
 liable to be misunderstood, and proposed to substitute the words 
 ' freight if not payable in advance.' 
 
 Herr Laeisz proposed the insertion of the words • at port of 
 destination,' instead of ' on delivery.'' 
 
 This alteration, with the further substitution of the word ' on ' 
 for 'after' next to 'immediately,' was adopted unanimously. 
 
 On Rule 19, Judge Peabody proposed the substitution of the 
 words ' in respect of anything not contained in these rules ' for the 
 words ' to the contrary,' and the amendment was accepted unani- 
 mously. 
 
 Mr. Alexander called attention to the fact that the form of 
 bill of lading now adopted restored the expressions providing for a 
 series, of which, one being accomplished, the rest were to stand 
 void, although the Liverpool conference had decided, by a large 
 majority, that it was desirable to have the bills of lading ' drawn 
 as first, second, or third, the first of which bills being accomplished, 
 the others to stand void.' He thought the question should not be 
 passed over in silence. 
 
 Herr Ahlers thought it better to keep to the accustomed form, 
 and the conference decided accordingly. 
 
 Herr Laeisz thought that the bill of lading and rules ought 
 now to be put to the meeting en bloc, as was done at the Liverpool 
 conference. 
 
 Dr. Sieveking was decidedly opposed to such a course, as the 
 bill of lading might now be rejected by a small majority on account 
 of a single clause to which they had objected, and which had been 
 carried against them at a [)iwioiis sitting, and thus the whole work 
 of the conference would be nullitied.
 
 472 MARITIME LEGISLATION^. 
 
 As chairman of the sitting, I ruled that this could not be done. 
 The bill of lading, as passed, was as follows : — 
 
 Model Bill of Ladlnht (as jinnlli/ adopted). 
 
 Shipped, in a^jparent good order and condition, on board the 
 ship whereof is master for the present voyage , now 
 
 lying in the port of and bound for , being 
 
 marked and numbered as per margin, to be carried and delivered at 
 the port of imto or order on his paying freight for 
 
 the said goods at the rate of 
 
 Subject to all the conditions of the Hamburg Eules of 
 Affreightment. 
 
 In witness whereof the master of the said ship has signed 
 bills of lading, all of this tenor and date, one of which being 
 accomplished the others to stand void. 
 
 Dated at , 188 . 
 
 (Signed) Master. 
 
 HAMHri{(i Hulks of AFFRP:KiHTMi:NT. 
 
 The shipowner shall be responsible that his vessel is properly 
 equipped, manned, provisioned, and fitted out, and in all respects 
 seaworthy and capable of performing her intended voyage, and for 
 the stowage and right delivery of the goods. He shall also be 
 responsible for the barratry, faults, and negligence, but not for 
 errors in judgment, of the master, officers and crew. 
 
 II. 
 
 The ship'iwiicr shall iidt I»e res])onsil)]e for loss or ilaniages 
 arising from vis major., public enemies, civil comtnotions, pirates, 
 robbers, fire, explosion, bursting of boilers, breakage of shafts or 
 screws, nor for any latent defect in hull or machinery (not resulting 
 from want of due diligence by the owner, husband, or nianager of 
 the ship), nor for the cargo's decay, putrefaction, rust, sweat, 
 cliange of cliaracler. drainage, leakage, breakage, or any damage-
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 473 
 
 arising from the nature of the goods shipped, or such defective 
 packing as could not be noticed externally, nor for the obliteration 
 of marks, numbers, addresses, or descriptions of goods shipped, 
 nor for any damage or loss caused by accidental prolongation of 
 the voyage, nor for other accidents of the seas, unless it is proved 
 that such exception comes under Rule I. 
 
 III. 
 
 Steamship to be at liberty to call at any intermediate ports, to 
 sail without pilots, provided such sailing does not constitute a fault 
 or negligence, to tow and assist vessels in distress, and to deviate 
 for tlie purpose of saving life or property ; also at liberty, in case 
 the ship shall put into a port of refuge for repairs, to tranship the 
 goods to their destination by other vessels, and at lil)erly to convey 
 goods in lighters to and from the ship at shipper's risk, but at 
 ships expense. 
 
 IV. 
 
 Quality-marks, if any, to be of the same size as and contiguous 
 to the leading marks ; and if inserted in the shipping notes accepted 
 by the mate, the master is bound to sign bills of lading conformable 
 thereto. 
 
 V. 
 
 Ship not accountable for gold, silver, bullion, specie, docu- 
 ments, jewellery, works of art, or other precious articles, unless 
 bills of lading are signed therefor with the value therein expressed 
 and a special agreement is made. 
 
 VI. 
 
 Shipper accountable for any loss or damage to ship or cargo 
 caused by inflammable, explosive, or dangerous goods, shipped 
 without full disclosure of their nature, whether such shipper shall 
 have been aware of it or not, and whether such shipper be prin- 
 cipal or agent : such goods may be thrown overboard or destroyed 
 by the master or owner of the sliiji at any time without compensa- 
 tion.
 
 474 MARITIME LEGISLATION. 
 
 YII. 
 
 Shipper and consiguee to be respousiblo fur all Hues or 
 
 damages which the ship or cargo may incur, or suffer, by rc.-asou 
 
 of incorrect or insufficient marking of packages or description of 
 
 their contents. 
 
 VIII. 
 
 Goods delivered to the shi^D, whilst on quay awaiting shipment, 
 to be considered as taken ou board, as far as the shipowner's 
 responsibility is concerned. 
 
 IX. 
 
 Goods once shipped cannot be taken away by the shipper, 
 except upon payment of full freight, and compeusation for any 
 damages sustained by the shipowners through such taking away. 
 
 X. 
 
 In case the ship shall be prevented from reaching her destina- 
 tion by quarantine, blockade, ice, or the hostile act of any Power, 
 the master or owners may discharge the goods into any depot or 
 lazaretto, or at the nearest convenient port ; the shippers and 
 consignees to be responsible for all expenses thereby incurred 
 
 upon the goods. 
 
 XI. 
 
 No goods can 1)e abandoned for freight. This rule does not 
 
 a])plv to liquids. 
 
 XII. 
 
 If the goods be not taken by the consignee without delay, or 
 within such time as is provided by the regulations of the port of 
 discharge, they may be stored or discharged into hulks or lighters 
 by the master at the expense and risk of their owners ; provided 
 always, that due notice is given of the arrival of the ship and the 
 commencement of the discharge, and that the same does not liegin 
 at night or at any unreasonable hour. 
 
 XIII. 
 
 Shij) to have a lien on all goods for payment of freight and 
 charges, including dead Crfiglit. dfiiiurrage at tlif ])ort of de.'^t ina-
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 475 
 
 tiou, forwarding charges, charges for carriage to port of sliipment, 
 and the fines, damages, and expenses mentioned in Rules VII. 
 and X., and for General Average claims, and to be entitli.-d tu 
 recover from the shipper the difference between the amount of 
 freight stipulated in the bill of lading and the proceeds of the 
 goods, should the freight not be paid otherwise. 
 
 XIV. 
 
 To the extent of the value of the lien, frt;ight, whicli by the 
 
 terms of the bill of lading is made payable by the consignee, 
 
 cannot be demanded from the shipper after the master has parted 
 
 with his lien on the goods. 
 
 XV. 
 
 In the event of claims for short delivery when the ship reaches 
 
 her destination, the price to be the market price at the port of 
 
 destination on the day of the ship's entry at the custom-house, less 
 
 freight and charges saved. 
 
 XVI. 
 
 Weight, measure, quality, contents, and value, although men- 
 tioned in the bill of lading, to be considered as unknown to the 
 master unless expressly recognised and agreed to the contrary, 
 Simple subscription not to be considered as such agreement. 
 
 XVII. 
 
 General Average to be paid according t(j York and Antwerp 
 
 Rules. 
 
 XVIII. 
 
 Freight if payable at port of destination to be paid imme- 
 diately on delivery in cash without discount, and in the currency 
 stipulated in the bill of lading, or, at consignee's option, at the 
 rate of exchange of bankers' bills at sio'ht current on the dav of 
 the ahi2)'s entry at the custom-house, 
 
 XIX. 
 
 Nothing contained in these rules is to be construed so as to 
 authorise an argument in respect to anything not expressed in 
 these rules.
 
 47G MARITIME LEGISLATION. 
 
 Herr Laeisz then said that he was desired, on behalf of the 
 Hamburg Chamber of Commerce, to present the following protest, 
 and to request that it be entered on the minutes of the conference. 
 
 ' The delegates of the Hamburg Chamber of Commerce, in the 
 name and on behalf of their constituents, beg to declare that, to 
 their regret, they feel unable to recommend the general adoption 
 of the Eules of Affreightment, the first of which, as amended by 
 this conference, imposes responsibilities upon the shipowner which, 
 in their opinion, he cannot reasonably be expected to take upon 
 himself, thus rendering the rules unacceptable for practical use.' 
 
 Dr. Sieveki]\'G wished, although he had been a member of the 
 committee of reference, to express the obligations of the con- 
 ference to those gentlemen who had so kindly undertaken the task 
 of putting its decisions into shape. They had spent a great deal 
 of time in doing so since the meeting of the previous morning. 
 He also expressed the desire that the executive council would do 
 their best to distribute and give effect to the decisions on this 
 question at which the conference had arrived. 
 
 ^I. Engels thought that for the council to take such action 
 would be improper, since the resolutions adopted by this conference 
 were totally opposed to those of the Liverpool conference, and the 
 council was bound by the one as much as the other. 
 
 Aliliougli the importance of these decisions could not 
 be denied, it soon, liowever, became apparent that they 
 ^vere yet far iVoin Icadiiii!' to any practical result. 
 
 T now come to the hiljours of another congress, Avhose 
 duty it Avas to consider tlie subject-matter of these pages ; 
 I mean tlie congress which tlie Tkdgian Government as- 
 sembled at Antwerp fiom September 27 until October 3, 
 ]885, ibi- tlic ])iii-pose of li-ying to obtain an agreement on 
 certain piinciplcs of commercial law. In order to bring 
 together a thofonglily coniix'tent- assembly for the con- 
 sideratioji of tJicse mattci's. llic l^oyal C^ommissioii, whicli 
 til'- King of the Jielgians had instituted for the oi'gaiiisa-
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 477 
 
 tion of this international congress, liad not only invited 
 tlie different Governments to send efficient delegates, but 
 had likewise addressed formal invitations to the barristers 
 of the principal mercantile cities, the iaculties of law of 
 the most important continental universities, the principal 
 learned societies, the courts of commerce, the chambers 
 of commerce, the boards of underwriters, and other equally 
 capable and interested bodies. 
 
 A large number of gentlemen, thoroughly conversant 
 with these subjects, had therefore an opportunity of in- 
 vestigating the merits of the arguments brought forward 
 in favour of the different contentions, and I cannot do 
 better than give the resolutions, and the conclusions at 
 which they arrived in their oAvn words. 
 
 These were as follows : — ■ 
 
 The owners of ships are civilly responsible, to the freighters 
 and shippers, for the acts of their captains and their officers relative 
 to the cargo, provided they cannot prove that the damage was 
 caused by force majeure, by vice-proper of the merchandise, or by 
 the fault of the shipper. 
 
 It is, however, lawful for the parties to vary this responsibility 
 by special stipulations, with the following exceptions : — 
 
 Owners of ships should be prohibited from relieving themselves 
 in advance of their responsibility by inserting a clause in the con- 
 tract of affreightment, the bill of lading, or by any other agree- 
 ment : — 
 
 (A). For any acts of their captains or their officers tending to 
 
 compromise the seaworthiness of the ships. 
 (B). For any act which would cause damage through improper 
 stowage, want of care, or incomplete delivery of the 
 goods confided to their care. 
 (C). For all barratry, all acts and cases of negligence having 
 
 the appearance of gross fraud. 
 The responsibility of shipowners resulting from the acts and
 
 478 MARITIME LEGISLATION 
 
 eno-acremeuts of their officials is limited to the value of the ship 
 and freight. 
 
 They can rid themselves of this responsibility by abandoning 
 the ship and the freight or their value at the moment of the com- 
 mencement of suit. 
 
 Soon after my return from this Antwerp congress I 
 ^Yas requested by the London Chamber of Commerce to 
 join the sub-committee, which, as previously mentioned, 
 had been appointed at the Cannon Street Hotel meeting 
 in the previous March for the purpose of considering this 
 subject in all its bearings, and to make such suggestions 
 as might be deemed most expedient to meet the exigencies 
 of the case. 
 
 This sub-committee held repeated meetings and 
 adopted, in the month of December 1885, the following 
 report : — • 
 
 The sub-committee appointed in March 1885 to consider the 
 best means of bringing into general use a reasonable and workable 
 form of bill of lading have given their careful attention to this 
 difiicult subject, and now beg to report to the general committee 
 the leading conclusions at which tliey have arrived. 
 
 They speedily resolved that any attempt to draft in concert 
 with the representatives of the shipowners a model bill of lading 
 would prove useless, and should not be made. This endeavour 
 liad b(.-en made some years previously by the joint committees of 
 merchants and shipowners who drafted the Eastern Trade Bill of 
 bading, a form which met with very general acceptance at the time, 
 and was taken as the model for the Australian and other bills of 
 lading subsequently introduced. Several important shipowners 
 and companies, however, fnnw (li<- first declined to use the Eastern 
 Tradr' form, and othfrs succcssfiillv iiitrnducc'd varialions from it,
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. -J7'.t 
 
 so that in a few years there was nearly as niucli diversity in the 
 forms of bills of lading in this trade as in the American or other 
 trades where the shipowners' forms have long been felt as oppres- 
 sive. The sub-committee are satisfied that any form now agreed 
 upon would in like manner be departed from by the managers of 
 steamship lines, and that no durable reform could possibly be con- 
 structed on this basis. 
 
 The sub-committee have consequently resolved, that in their 
 view the object aimed at can only be attained by parliamentary 
 legislation ; and their efforts have been mainly directed to drafting 
 the requisite Bill in such form as might prove a proper protection 
 to the shipper, and to the holder of the bill of lading for value, 
 while not unfair to the shipowner. 
 
 The Act introduced into the American Congress for regulating 
 bills of lading (but which has not yet been effectively considered 
 there) has been before the sub-committee, as have also the Ham- 
 burg rules on bills of lading lately adopted at an international 
 conference for the amendment and assimilation of commercial law. 
 Both have been found of service ; but the American draft is con- 
 sidered more stringent than would be likely to pass our House of 
 Commons, and it has consequently had to be extensively modified. 
 
 The sub-committee found much difficulty in drafting a form of 
 Bill which would prove workable from a legal point of view ; but 
 latterly, by the kindness of the council of the Chamber, they have 
 had the valuable assistance of Mr. J. Macdonell, the standing 
 counsel to the Chamber, placed at their disposal, the result being 
 that with his aid a form of bill has been drafted, which is now 
 submitted to the general committee for their approval. 
 
 The committee will observe that the Bill is a short one, as it 
 merely seeks to lay down certain legal principles applicable to the 
 case, from which the shipowners will be unable to exempt them- 
 selves by any clauses which they may desire to embody in their 
 bills of lading. Upon the question of the general legal principles 
 involved, the sub-committee append hereto a letter dated ]\Iarch 
 23, 1885, from Mr. Henry Attlee, solicitor, who has given much 
 attention to this question from the merchants' point of view. In 
 the draft Bill they have endeavoured to give effect to his contention
 
 4^0 MARITIME LEGISLATION. 
 
 that the shipowner should be relieved from the insurance liability 
 ■which, in law, at present attaches to him as a common carrier. 
 
 The Bill does not propose to recommend or enforce any par- 
 ticular form of bill of lading. The sub-committee recognise that 
 different trades require different forms according to their special 
 circumstances. They think, however, that the forms employed 
 should be as simple and short as practicable, and that, without 
 specifically adopting it, Mr. Charles Stubbs's published form may 
 very usefully be taken as a model from which to draft the various 
 bills of lading required for the various conditions of distinct trades. 
 The essential point to be gained, and the consequent protection for 
 the owner of the goods shipped, is that no condition on a bill of 
 lading can be enforced which is at variance with the principles laid 
 down in the Bill. 
 
 One object which has to be sedulously kept in view is that the 
 bill of lading must itself be a complete receipt for the goods 
 shipped, and a complete security that they will be delivered in 
 accordance Avith its terms, saving only through such losses as are 
 covered by an ordinary policy of insurance. This accomplished, the 
 bill of lading becomes a security on which money may be advanced 
 witli unhesitating confidence. 
 
 It may be thought that the absence of any recognised form of 
 bill of lading will tend to promote litigation, each case of dispute 
 having to be treated on its own special merits. The sub-committee 
 have had this question under view, and are of opinion that it is 
 impossible materially to stop litigation, considering the infinite 
 variety of circumstances with which commercial transactions have 
 to deal. They feel satisfied, however, that w^ith such a law in 
 operation the merchant may encounter litigation with a sense of 
 security which he could never have felt under the previous indefinite 
 and uncertain system. 
 
 In explanation of the delay that has taken place in presenting 
 this report, it may be observed that the sub-committee very early 
 came to the conclusion that it was quite hopeless to do anything 
 in the way of legislation during the Parliamentary Session of 1885. 
 Tlu-y trust, however, that the general committee will so deal with 
 tlie matter tliat ;i Bill, nimiiig at settling a prnc(ical)lo system for
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 481 
 
 tbo future, may be presented to the new Parliament at the earliest 
 possible period in 188G. 
 
 J. Macandrew, Chairman (Matheson & Co.). 
 
 C. ViC'iOR Benecke (Benecke, Soucliay, & Co.). 
 
 H. Reixiiold (Reinliold & Co.). 
 
 J. C- PiTCAiKN (J. G. Pitcairn & Sons). 
 
 A. J. Malcolm (J. McEwan & Co.). 
 
 E. E. Wendt, D.C.L. 
 
 Members of the Suh- Committee. 
 
 I concur in the report, but I strongly urge that a clause should 
 bo introduced into the Act, providing for the exemption of the 
 shipowner from liability in respect to any error in the actual navi- 
 gation, even when occasioned by negligence, default, error in 
 judgment of the pilot, master, mariners, or other servants of the 
 shipowner, not resulting, however, in any case, from want of due 
 diligence by the owners of the ship, or any of them. 
 
 J. G. PrrcAiKN (J. G. Pitcairn & Sons), 
 
 Member of the Sub-Committee. 
 
 COrY OF LETTER FROM MR. HENRY ATTLEE. 
 
 10 Billiter Square, London, E.G. : March 23, 1885. 
 
 Dear Sir, — It seems to me that what is wanted is some arrange- 
 ment which would place the shipowner and the merchant in an 
 equitable position vis a vis each other. 
 
 In my opinion it is not a question of settling the precise terras 
 of a bill of lading, for it is impossible by the introduction or 
 elimination of particular words varying the liability of parties in 
 a contract to meet the difficulty ; but that it is to be met by an 
 alteration in the principle of the law itself regulating the rights 
 of shipowner and merchant. As the law at present stands, the 
 shipowner carrying goods is a common carrier and, therefore, an 
 insurer, that is apart from any special stipulations introduced into 
 any contract which may limit his liability ; he undertakes to carry 
 safely and securely against all accidents and risks whatsoever. 
 Hence it is that the shipowners have from time to time sought to limit 
 this general liability by the introduction of a])t words to exclude 
 
 I I
 
 482 MARITIME LEGISLATION. 
 
 the varied risks which experience has taught them arise in the 
 course of the carria"-e, and at hist these exceptions have become so 
 numerous that they have to be embodied in diamond print, and 
 make a long document difficult of construction and containing 
 contradictions, and have become in many cases unfair in their 
 operation. 
 
 Now, as I understand it, the merchants do not object to reason- 
 able limitations of the common-law liability of a carrier ; that is to 
 say, they no longer wish that a carrier by water should undertake to 
 carry against all risks, and I think that the case would be better 
 met by a short Act of Parliament declaring that in future a ship- 
 owner or carrier by water should not be liable as an insurer, but 
 that his liability should be limited to any loss occasioned by the 
 want of ordinary care on his part, and that in case of a loss it should 
 lie on him to acquit himself by showing that he was not in fault ; in 
 other words, his liability would be assimilated to other custodians 
 of goods, such as warehousemen, &c. 
 
 To effect this a short Act of Parliament would be required, and 
 the same Act might declare that it should not be lawful for the 
 shipowner by express stipulation to exclude this general liability 
 thus limited to loss occasioned by the want of ordinary care on his 
 part. It would be easy to add words of definition which would 
 relieve the shipowner from liability for the errors of judgment of 
 captains or officers, or for their negligence, except in cases where 
 the shipowner had knowledge of the officer's unfitness for his duties 
 from proved want of ability, dishonesty, or other defect of character, 
 in which latter alternative he should be liable if the knowledge were 
 such a.s would satisfy a prudent man of the officer's unfitness. 
 
 The Act would also provide that the shipowner or ship should 
 be held responsible to the bond-fide holder for value of a bill of 
 lading for all goods signed for by the captain, or other duly authorised 
 agent at the port of loading, whether such goods were or were not 
 put on board, or that it should be made imperative upon the ship 
 to declare at the port of loading the agent who should be authorised 
 to sign bills fjf lading, if any, lu'voud the captain, by whose signa- 
 luro slii[)ovvncrs should be bound, failing which the captain should 
 Ih' li-<'allv licld <o hind llic owner. It seems to mc it would bo
 
 INTERNATIONAL LAW OF AFFREIGHTxMENT. 483 
 
 preferable that the shipowuer, or the ship itself, be held responsible 
 in damages rather than that penal consequences of a criminal 
 nature should be imposed upon the captain or others, signing bills 
 of lading for goods not actually on board. — I am, dear Sir, 
 
 Yours faithfully, 
 (Signed) IIenky Attlee. 
 
 An Act to Regulate and Define the Duties and Liabilities 
 
 OF Shipowners. 
 
 Whereas it is expedient to amend the law affecting the duties 
 and liabilities of shipowners, 
 
 Be it enacted by the Queen's most excellent Majesty, by and 
 with the advice and consent of the Lords Spiritual and Temporal, 
 and Commons, in this present Parliament assembled, and by the 
 authority of the same, as follows : — 
 
 I. This Act may be cited as the Bills of Lading Act, 188G. 
 
 IL This Act shall come into effect on , 188G, 
 
 III. Li this Act, unless the context otherwise requires, 
 
 ' Shipowners ' includes any corporate body owning a ship, and 
 any managing owner ; 
 
 ' Ship ' includes every vessel, whether navigated or propelled 
 by steam, sails, or oars, and every lighter, barge, or craft of any 
 kind ; 
 
 ' United Kingdom ' means Great Britain and Ireland ; 
 
 The expression ' owner of goods ' includes every person who is 
 for the time being entitled either as owner, or agent for the owner, 
 to the possession of goods, subject in the case of a lien, if any, to 
 such lien ; 
 
 ' Goodj ' include every description of wares and merchandise ; 
 
 ' Master ' includes every person (except a pilot) having command 
 or charge of a ship within the meaning of this Act ; 
 
 'Bill of lading' includes every mate's receii:>t, or other docu- 
 ment of the nature of a receipt or acknowledgment, for goods 
 temporarily granted until a bill of lading is issued. 
 
 IV. This Act shall apply to all ships carrying goods from any 
 port or place in the United Kingdom, and all .ships carrying goods 
 to any port or place in the United Kingdom to be delivered there. 
 
 1 I 2
 
 484 MARITIME LEGISLATION. 
 
 V. (1.) No shipowner shall be liable to the owner, consignee 
 of goods, or the indorsee of a bill of lading, for injury or damage 
 to, or loss of, or in respect of, goods to be carried and delivered, 
 except for injury, damage or loss, in receiving, carrying, or de- 
 liverino- them, caused by the want of ordinary and reasonable care 
 on the part of the shipowner, master, crew, servant, or agent of 
 such shipowner. 
 
 (2.) Every shipowner shall be liable to the owner, consignee 
 of goods, or the indorsee of a bill of lading, for injury, damage, or 
 loss, as aforesaid, in receiving, carrying, or delivering, if caused by 
 the want of ordinary and reasonable care on the part of the ship- 
 owner, master, crew, servant, or agent of such shipowner ; and the 
 onus of proving that such injury, damage or loss, as aforesaid, was 
 not occasioned by want of such ordinary and reasonable care, shall 
 be on the shipowner. 
 
 (3.) Every shipowner shall be so liable while the goods to be 
 carried and delivered are temporarily deposited before delivery to 
 the owner, consignee, or indorsee, on any quay or wharf, or in any 
 warehouse or other premises, in charge or under control of the 
 shipowner or his agent. 
 
 (4.) Any provision or exception in any bill of lading or any 
 agi'eement to the contrary of this section, shall be null and void. 
 
 VI. (1.) Any provision or exception in any bill of lading, or 
 any agreement purporting to relieve or exonerate in any way any 
 shipowner from any duty to properly equip, man, provision, and 
 fit out any ship, and to render it seaworthy, or from any implied 
 warranty of seaworthiness in a contract of affreightment, shall be 
 null and void. 
 
 (2.) The onus of proving that any injury, or damage to, or loss 
 of or in respect of, goods, to be carried and delivered aforesaid, 
 was not occasioned by a breach of such duty on the part of such 
 shipowner, master, crow, servant, or agent, in properly equipping, 
 manning, provisioning, fitting out, and rendering seaworthy any 
 ship, or by a breach of such warranty of seaworthiness, shall, any 
 provision, exception, or agreement to the contrary notwithstanding, 
 be on the shipowner. 
 
 ('■').) No sliipowucr shall bo liable for iiijuiy, damage, or loss
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 485 
 
 as nforesaid, caused by, or arising from, any latent defects in the 
 hull, machinery, tackle, equipment, or outfit of a ship which could 
 not have been discovered by reasonable care or skill on the part of 
 the shipowner, master, crew, servant, or agent. 
 
 VII. In every bill of lading issued in fulfilment of a mate's 
 receipt, or of other document of the nature of a receipt, the exact 
 voyage which is intended to be made, and the ports at which it is 
 intended that the ship shall touch, shall be clearly specified or 
 described ; and the master or agent of the shipowner shall sign 
 and deliver to the shipper of the goods, within a reasonable time, 
 such a bill of lading for goods received in conformity with the 
 mate's receipt, or other document of the nature of a receipt. 
 
 VIII. If goods are discharged at any port other than the port 
 specified in the bill of lading as their destination, or carried to any 
 port beyond such destination, they shall, until delivered thereat, 
 be at the risk of the shipowner ; and he shall be liable, any pro- 
 vision or exception in a bill of lading, or any agreement to the 
 contrary notwithstanding, for injury or damage to, or loss of, or in 
 respect of, such goods, caused by their being so discharged or not 
 delivered at the specified poi't. Provided always, that he shall not 
 be so liable for such injury, damage, or loss by causes beyond the 
 control of the shipowner, master, crew, servant, or agent. 
 
 IX. Every bill of lading in the hands of a hond-ficle holder, 
 representing goods to be shipped on board a ship, and signed by 
 the master or agent of the shipowner, shall be conclusive evidence 
 of such shipment as against the shipowner, as well as against the 
 master or agent signing the same, notwithstanding that such 
 goods, or some part thereof, may not have been so shipped or 
 received. But nothing in this Act shall affect a shipowner's, 
 master's, or agent's rights against the shipper or owner of the 
 goods, or other person, in consequence or by reason of whose 
 fraud or default such goods were not shipped or received, or such 
 representation was made. 
 
 X. Nothing in this Act shall make a shipowner liable for 
 injury or damnge to, or loss of, or in respect of, goods, caused by 
 the act of God or the Queen's enemies, or affect s. 503 of 1 7 & 1 8 
 Vict. c. 107.
 
 4^6 MARITIME LEGISLATION. 
 
 XI. Sec. 3 of 18 & 19 Vict. c. Ill, is hereby repealed, except 
 so far as regards bills of lading signed before this Act came into 
 force. 
 
 This report was adopted and coufirined by the general 
 connnittee of the London Chamber of Connnerce, but was 
 not followed up by any action of that body, as appears 
 from the following report adopted on April 5, 1886 : — 
 
 The special committee of the Chamber of Commerce appointed 
 to consider the question of the terms of existing bills of lading 
 and the best means of amending them upon an equitable basis had 
 regarded their functions as closed with the preparation and presen- 
 tation of their Report dated in December last. They have, how- 
 ever, reassembled in consequence of the wish expressed by the 
 council of the Chamber in their resolution of January 14, that 
 they should communicate with the representatives of the shipowners 
 so as to obtain their views on the legislation proposed by the 
 committee. 
 
 The committee accordingly intimated to the General Shipowners' 
 Society, to the Chamber of Shipping, and to the Steam Shipowners' 
 Association that they were ready to meet any representatives whom 
 these bodies might appoint for the purpose of discussing the Bill 
 drafted by the committee, and seeing whether an agreement could 
 be arrived at as to its terms. The answers received from two of 
 these associations are appended hereto. No answer has been re- 
 ceived from the Steam Shipowners' Association. It will be seen 
 that the invitation to discuss the Bill is ignored by the one body 
 and declined by the other, while both advance the old expedient 
 tliaf, t lir merchants and sliipowncrs engaged in any particular branch 
 of trade sliould meet together and arrange a form of bill of lading 
 which would prove mutually acceptable. 
 
 Tiu^ committee have already r('i)orted to the council that an 
 
 agreed lull <>f' lading is quite useless, because no shipowner is 
 
 1)1)1111(1 hy it, and flic great steam companies, as a rule, will not 
 
 iiitiit;iiii swell negotiations, l)nt insist on using their own forms. 
 
 'rii'-\ also reported that the most ])romisingatt('mi)t to establish
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 487 
 
 snch a bill of lading by the mutually agreed upon form styled ' the 
 Eastern Trade P>ill of Lading' had resulted in complete failure, as 
 many important lines never adopted it, while other shipowner?, 
 after using it for a time, introduced variations or additional clauses 
 to suit their own purposes, which clauses are complained of by 
 merchants as oppressive and unfair. 
 
 The committee therefore now finally report that there is no 
 expectation whatever on their part of arriving at a preliminary 
 understanding with the shipowners on the legislative measures 
 which they propose. Under these circumstances they recommend 
 that the whole question be submitted to the decision of Parliament 
 by the council pressing forward at the earliest possible opportunity 
 in the House of Commons the Bill already recommended by them 
 as being a measure of relief urgently required by the numerous 
 bankers, merchants and shippers who ai-e injuriously affected by 
 the inequitable conditions of the majority of the bills of lading 
 now in use. 
 
 As previously stated, tlie Eoyal Commission on Loss of 
 Life at Sea was sitting at this time, and the council of the 
 London Chamber of Commerce accordingly resolved that 
 any further action on their part should be deferred till this 
 commission had issued its report. 
 
 Soon after, in the month of May of the same year, it 
 was puldicly announced that the Chambers of Connnerce 
 of Hamburg and Bremen, as well as the Associations of 
 Shipowners at these ports, had agreed upon the adoption 
 of a uniform bill of lading for steamships, and issued the 
 following : — 
 
 Statement respecting its Introduction. 
 
 As the deliberations on the above subject during the conference 
 of the Association for the Reform and Codification of the Laws of 
 Nations held in August last year at Hamburg, and of the Congres 
 International de droit Commercial, which met soon after at Ant- 
 werp, did not lead to any practical results, owing to the proposed
 
 488 MAraXIME LEGISLATION. 
 
 resolutions being partially unacceptable to shipowners, the under- 
 signed Chambers of Commerce and Associations of Shipowners 
 entered into negotiations together in order to draft a bill of lading 
 for steamers doing justice to all parties interested, and to arrange, 
 if possible, its universal adoption. The result of these negotiations 
 is the following model bill of lading. 
 
 It adopts the principle that the shipowner shall be responsible 
 for seaworthiness, proper equipment and outfit of the vessel, as 
 well as for faults and negligence of the crew respecting proper 
 stowage, care, treatment, and delivery of the cargo (Rule I.), thus 
 doing justice to the shippers, who, owing to the shipowner not 
 being responsible for the frequent, although generally small, losses 
 caused thereby, which are often not recoverable from underwriters, 
 had just cause of complaint. On the other hand, owners ought to 
 aoree to these clauses, as at present many of the best companies 
 have acknowledged a moral liability in this sense and made com- 
 pensation for claims of the nature described, even if they were not 
 liable according to the wording of their bills of lading. 
 
 The owner, however, is not to be responsible for faults and 
 neo-lio-ence of the crew arising from the navigation of the vessel 
 (Rule II.). This clause, of vital importance to the owner, does not 
 prejudice the shippers, as, with trifling exceptions they are always 
 insured against such risks, nor have the underwriters any cause to 
 com])lain, as by accepting the premium they obtain an equivalent 
 for such risk, which many underwriters accept without charging a 
 higher premium. 
 
 This settlement of the owners' liability for the faults of their 
 crew agrees in principle with all the bills of lading which have 
 been accepted lately after agreement between shippers and owners 
 (viz. tiie New York Produce Exchange, as approved for adoption 
 by the Liverpool Steamship Owners' Association, the General 
 Produce, Mediterranean, Black Sea, and Baltic Steamship bills of 
 lading and others), a proof that it is in accordance with the sense 
 of justice of the parties coucriu'd. 
 
 This cardinal ]K)int in the drall is followed by a series of other 
 iiiil)ortant clauses respecting the contract of affreightment for which 
 \\\i- n-solutious of the Liverpool and Hamburg conference of the
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 489 
 
 Association for the Reform and Codification of the Law of Nations 
 have given a valuable starting-point. 
 
 With resi)ect to the codification, it has been agreed to follow 
 the unanimous decision of the Hamburg conference of the Asso- 
 ciation to arrange tlie bill of lading clauses in general rules similar 
 to the York and Antwerp General Average Rules. It appears, how- 
 ever, advisable to have the rules printed on the back of the bill of 
 lading, at any rate until they are generally known. 
 
 Finally, in order to meet the existing and just requirements of 
 some trades and shipowners, to add to the general rules special 
 clauses, i.e. to alter some of their conditions, space has bten reserved 
 on the front side of the bill of lading for such additions and altera- 
 tions, but with regard to the first principal rule respecting the 
 responsibility of the shipowner, it is expressed that no alterations 
 be allowed. 
 
 The undersigned believe that in the bill of lading drafted by 
 them for the rules of a contract of affreightment they have found 
 a suitable model acknowledged by the unanimous opinion of the 
 parties every day more than just and equitable, and would strongly 
 recommend its adojDtion to all shipowners. 
 
 The Chamber of Commerce of Bremen. Luis Ed. Meyer, 
 Cluiirman. 
 
 The Association of Owners of the Lower Weser. H. H, Meier, 
 Chairman. 
 
 The Chamber of Commerce of Hamburg. Robert Mestern, 
 Chairman. 
 
 The Association of Hamburg Owners. Carl Laeisz, Chairman. 
 
 Hamburg and Bremen : Maj' 1886. 
 
 Form of Bill of Lading. 
 
 Shipped, in apparent good order and condition, by M. , 
 
 on board the steamship Captain from 
 
 , bound to , being marked and numbered 
 
 as per margin, to be delivered at unto ]\I. 
 
 or order against payment of freight at the rate of 
 and charges as per margin. Subject to the general rules on the
 
 490 MARITIME LEGISLATION. 
 
 other side as far as hereafter, there are no alterations or additions 
 to Rules II. to XVII. 
 
 In witness whereof, the master of the said ship has signed 
 bills of lading of the same tenor and date, besides the 
 captain's copy which is marked as such, one of which being ac- 
 complished the others to stand void. 
 Dated at 
 
 (Signed) 
 
 General Rules for Steamship Bills of Lading recommended 
 
 TO BE adopted BY THE CHAMBERS OF COMMERCE OF HAMBURG 
 
 AND Bremen. 
 
 Ixule I. — -The shipowner is responsible for the proper fitting 
 out of the vessel and for its being equipped, manned, and pro- 
 visioned, and in a seaworthy condition, capable to undertake the 
 intended vo^'age. Also for errors or negligence of his employes 
 respecting proper stowage, care, treatment, and delivery of the cargo. 
 
 All agreements and clauses to the contrary to be null and void 
 and of no legally binding force. 
 
 linh II. — The shipowner is not responsible for the dangers of 
 the seas, fire, pirates, robbers, barratry (theft excepted), arrest and 
 restraint of Governments, nor for damages and losses by collision, 
 stranding, and all other casualties of navigation, even if the 
 damages or losses so caused can be proved to have been caused by 
 an illegal act, fault, negligence, or error of the pilot, captain, crew, 
 or any other servant of the shipowner, nor for damages or losses 
 by explosion, bursting of steam boilers or pipes, breakage of 
 shafts, or for any latent defect in hull or machinery (not caused by 
 uns'-aworthiness or want of due diligence by the owner or ship's 
 husbandj, nor for decay, putrefaction, rats, or worms, rust, sweat, 
 decomposition, shrinkage, leakage, breakage, country damage, or 
 any damage arising from the natural condition of the goods 
 shippf'd, or such defective packing as could not be noticed exter- 
 iKilly, ov finally their contact with or damage caused by the smell 
 of other goods, nor for incorrect or faulty address, nor for errors 
 caused by the otil iteration of marks, numbers, addresses, or 
 (h'S^riptioiis of the goods shipped.
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 49i 
 
 Rule in. — Vessel to be at liberty to call at any intermodiate 
 ports (whether also of ports not mentioned in the bill of lading is 
 subject to special contract), to sail without pilots, to tow and assist 
 vessels in distress, and to deviate for the purpose of saving life or 
 property, also at liberty, in case the ship shall put into a port of 
 refuge for repairs, to transliip the goods to their destination by any 
 other vessel, and at liberty to convey goods at shippers' risk in 
 lighters to and from the ship. 
 
 Hide IV. — Quality-marks, if any, to be of the same size as 
 and contiguous to the leading marks. If inserted in the shipping 
 notes accepted by the mate, the master is bound to sign bills of 
 lading conformable thereto. 
 
 Rule V. — Ship not accountable for gold, silver, bullion, specie, 
 documents, jewellery, works of art, or other articles exceeding 
 M. 2,000 per package, unless bills of lading are signed therefoi* 
 with the value therein expressed, and a special agreement to be 
 made. 
 
 Rule VI. — Shippers are accountable for any and every loss 
 or damage to ship or cargo caused by inflammable, explosive, or 
 dangerous goods, if such goods are shipped without special agree- 
 ment and without full disclosure of their nature, whether such 
 shipper shall have been aware of it or not, and whether such 
 shipper be principal or agent. Such goods may be thrown over- 
 board or destroyed by the master or owners of the shij) at any 
 time without compensation. 
 
 Rule VII. — Shipper and consignee to be responsible for all 
 fines or damages which the ship or cargo may incur or suiFer by 
 reason of incorrect or insufficient marking of packages or descrip- 
 tion of their w'eights or contents. 
 
 Rule VIII. — If the owner has given a receipt for goods still 
 lying on the quay or in lighters, he is only responsible in so far as 
 if they had been already taken on board. 
 
 Rule IX. — Goods once shipped can only be taken away by the 
 shipper against payment of full freight and compensation for any 
 damages sustained by the shipowners through such taking away. 
 
 Rule X. — In case the ship sliall be prevented from reaching 
 her destination by quarantine, blockade, ice, or the hostile act of
 
 492 MARITIME LEGISLATION. 
 
 any Power, the master or owners may discharge the goods into 
 any depot or hizaretto, or at a convenient port when his duties are 
 fulfilled. The sliippers and consignees to be responsible for all 
 expenses thereby incurred upon the goods. 
 
 Bide XI. — For cargo damaged or reduced by leakage full freight 
 to be paid. No freight to be paid for increase in weight by sea 
 damage. 
 
 Bule XII. — If the goods be not taken by the consignees without 
 delay or within such time as is provided by the regulations of the 
 port of discharge, they may be lauded or discharged into hulks or 
 lighters by the master at the expense and risk of their owners. 
 
 Rule XIII. — Ship to have a lien on all goods for payment of 
 freight and charges, including dead freight, demurrage, forwarding 
 charges, and for carrying to port of shipment, and the fines, dam- 
 ages, and expenses mentioned in Rules VII, and X. and for General 
 Average claims. Ship also to be entitled to recover from the 
 shipper the difference between the amount of freight stipulated in 
 the bill of lading and the proceeds of the goods, should the freight 
 not be paid otherwise. 
 
 Rule XIV. — In the event of claims for short delivery when the 
 ship reaches her destination, the price to be the market price at the 
 port of destination, on the day of the ship's entry at the custom- 
 house, less freight and charges saved. 
 
 Rale XV. — Weight, measure, quality, contents, and value, al- 
 tliou^h mentioned in the bill of lading, to be considered as unknown 
 to the master, unless expressly recognised and agreed to the con- 
 trary. Signing the bill of lading is not to be considered as such 
 agreement. 
 
 Rule XVI. — General Average to be paid according to York and 
 Antwerp Rules, consignees of goads liable to contribute to General 
 Average to sign an average agreement declaring values, or to give 
 sufficient secmity, at the captain's option. 
 
 Rule XVII. — Freight and charges, if payable at port of desti- 
 nation, to be paid immediately on delivery in cash, without discount 
 and in the currency stipulated in the bill of lading, or at con- 
 signee's option, at the rate of exchange, of bankers' bills at sight 
 cnrn-nt on t Ik- <l;iv "f t In- ^liip's cut i\- at tlie custom-house. Frcitilit
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 493 
 
 paid iu advance cannot be refunded, even if vessel and cargo are 
 lost. 
 
 This was tlie state of affairs when the council of the 
 Association for the lieform and Codification of the Law of 
 Nations received an invitation from the Lord Mayor and 
 the Common Council of the city of London to hold tlieir 
 thirteenth conference in the Guildhall. Again, in order to 
 see whether a satisfactory arrangement could be brought 
 about upon this much- vexed Bill of Lading question, its 
 rediscussion was announced on the programme. Before, 
 however, I report what took place on that occasion, I 
 cannot refrain from quoting that part from the ILon. Sir 
 Charles Butt's opening address on July 25, 1887, in which 
 this learned Judge alludes to the subject under considera- 
 tion. He said : — 
 
 But let me, in the first instance, say a word on a matter to 
 which your attention is invited, and in respect of which the aims 
 of the Association should run a chance of early realisation. 
 
 For a time it seemed as if the efforts of the Association to 
 bring about uniformity of contracts of affreightment were likely 
 to result in a speedy and successful issue. 
 
 At the conference held at Hamburg in August 1885, a draft 
 bill of lading was presented to the meeting, which embodied by 
 reference a ' Code of Affreightment,' also submitted to the members 
 attending that conference. 
 
 The object of that mode of dealing with the matter was, I 
 understand, to avoid undue length of the bill of lading itself. 
 Now, whilst I agree with the opinions expressed by the majority 
 of members at that meeting, I doubt whether the modus operandi 
 then suggested is the best that might be adopted. The rules 
 forming the ' Code of Affreightment ' may be good in themselves 
 but they appear to me to deal with so many matters of detail, with 
 so much that is of comparatively minor importance, that I should 
 despair of inducing i^liipowners, at the present time, to adopt a
 
 404 MArailME LEGISLATION. 
 
 form of bill of lading incorporating all those rules. On the other 
 hand, I see no reason why a short bill of lading may not be framed, 
 containino- within its four corners all essential stipulations binding 
 shipowner and merchant alike. The real difficulty lies not in the 
 form of the bill of lading, but in the question of the insertion of 
 one provision with reference to which merchants on the one hand, 
 and a large number, if not a majority of shipowners on the other 
 are at issue. 
 
 The real difficulty is that shipowners refuse to accept any bill 
 of lading which leaves them responsible for the negligence of their 
 servants, the masters and crews of their vessels. 
 
 At a meeting of the members of this Association held at Liver- 
 pool in 1882, a form of bill of lading exempting the shipowner 
 from liability for the negligence of his servants was approved of; 
 but at the more recent conference at Hamburg in the month of 
 August 1885, a resolution to the effect that the shipowner ought 
 not to be allowed to protect himself from such liability was pro- 
 posed, and carried by a considerable majority. 
 
 Since that time, the matter has not been allowed to rest. The 
 Chambers of Commerce of two most important commercial cities 
 — Hamburg and London — have given expression to opposite views 
 on this question ; the Chamber of Commerce of Hamburg holding 
 tliat the shipowner should, the Chamber of Commerce of London 
 that he should not, be exempt from liability for the negligence of 
 liis master or crew. 
 
 The controversy has, it seems to me, been embittered by the 
 use by some of the large lines of steamers of bills of lading ex- 
 empting them from almost every sort of responsibility. These so- 
 called contracts amount, in reality, to little more than this : ' You 
 ])ay me the freight, and I will do what I please with your goods.' 
 How comes it that such conditions are ever accepted by the mer- 
 chant ? This question admits of one answer, and one answer 
 alone. He accepts simply because he has no choice. Submission 
 is forced on him, and forced on him in defiance of the fundamental 
 duties of the carrier. 
 
 W(;rc the majority of shipowners inclined to insist on the im- 
 poriition of conditions so manifestly unreasonable, the labours of
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 495 
 
 this Association to reconcile the apparently conflicting interests of 
 merchaut and shipowner respectively must of necessity be un- 
 availing. In that case we had better stand aside, and let the 
 Leerislatures of the different countries deal with the matter. 
 
 I believe, however, that merchants and shipowners, alike, desire 
 only a reasonable solution of the question ; and that the real point 
 to be determined is what is reasonable. 
 
 There are those who think that when once an employer of 
 labour, whether shipowner or other person, has taken due care 
 and precaution to secure, so far as may be, the competence and 
 trustworthiness of his agents, or servants, he ought not to bo held 
 civilly, any more than he is held criminally, responsible for their 
 wrongful acts. That is a question of very large dimensions, on 
 which opinions may differ, and which it is not for me to determine ; 
 but it may not be out of place to remind those who hold this 
 opinion that it is a view of the employer's liability which the 
 legislation of the great majority of civilised states refuses to 
 sanction. 
 
 But apart from this more general question of the responsibility 
 of employers for the negligence of their servants, the shipowners 
 contend that in their case an exception should be made, on the 
 ground of the very large responsibilities necessarily placed upon 
 servants who, from the nature of their occupation and employment, 
 are to an unusual extent beyond the control of the employer. The 
 contention is worthy of careful and respectful consideration ; but I 
 would venture to suggest, for the consideration of those by whom 
 it is put forward, whether the directors of a railway company have, 
 for practical purposes, more control over the engine-driver, who 
 fails to see, or neglects to obey, a signal, than has the shipowner 
 over his captain, who runs his vessel on a rock, from failino- to 
 observe, or to appreciate, the timely warning of the lighthouse. 
 Again, for all practical purposes, has the man who sends his 
 carriage or his cart along the highway more control over his 
 coachman, or his driver, who runs down the carriage of a third 
 person, than has the shipowner over his captain who runs down 
 the third person on the high seas ? 
 
 These are matters on which I do not presume to pronounce
 
 4C6 MARITIME LEGISLATION. 
 
 an opinion ex cathedra. I n:erely desire to suggest them for the 
 consideration of those engaged in the controversy, in the hope 
 that the honesty of purpose, which I am persuaded animates all 
 parties concerned, aided by mutual forbearance, may, ere long, 
 bring your labours, in this branch of your undertaking, to a satis- 
 factory issue. 
 
 The discussion on the subject was fixed for Wednesday, 
 July 27, and took place under the presidency of Dr. Sieve- 
 king (President of the Hanseatic Court of Appeal at 
 Hamburg) with a result which might have been foreseen, 
 from the large number of gentlemen interested in the 
 shipowning interest who had recently become members 
 of the Association, 
 
 The Chairman opened the discussion on the above question, 
 and explained the present position of the question, suggesting 
 that the attention of the conference should be directed solely to 
 the negligence clause. The question had twice been before the 
 conference — at Liverpool, and again at Hamburg in 1885. At 
 Liverpool, the form of bill of lading adopted excepted the ' act of 
 God, perils of the sea, fire, barratry of the master and crew, enemies, 
 pirates, and thieves, arrest and restraint of princes, rulers, and 
 people, collisions, stranding and other accidents of navigation, even 
 when occasioned by the negligence, default, or error in judgment 
 of the pilot, master, mariners, or other servants of the shipowners.' 
 The bill of lading adopted at Hamburg contained the following 
 clause : * The shipowner shall bo responsible that his vessel is 
 properly equipped, manned, provisioned, and fitted out in all re- 
 spects seaworthy and capable of performing her intended voyage 
 and for the stowage and right delivery of the goods. He shall 
 also bo responsible for the barratry, faults, and negligence, but not 
 for errors in judgment, of the muster, officers, and crew.' Before 
 the Hamburg conference concluded, a protest was handed in by 
 the Hamburg Chamber of Commerce declaring that in the opinion 
 of tliat Cli.'iiiibor the clause was too strong against shijiowners, 
 ami lliiif it would not l)o practicable lie brought the proceedings 
 
 Ml
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. ^07 
 
 of tlio Hamburg conference to a conclusion by expressing the hope 
 that before the next conference there would be an interchange of 
 opinion, and that some compromise would be arrived at. Since 
 1885 a bill of lading had been approved by the Chambers of 
 Commerce of Hamburg and Bremen, and between this bill of 
 lading and the Liverpool Bill of Lading there was great similarity. 
 
 Mr, Gray Hill (Liverpool) moved : — 
 
 ' That the following principle adopted by the conference of 
 this Association held at Liverpool in 1882 be now confirmed and 
 adopted as the basis of discussion. That the principle of the 
 common form of bill should be this — that the shipowner, whether 
 by steam or sailing ship, should be liable for the faults of his 
 servants in all matters relating to the ordinary course of the voyage, 
 such as the stowage and right delivery of the cargo and other 
 matters of this kind ; but, on the other hand, the shipowner should 
 be exempt from liability for everything which comes under the head 
 of accidents of navigation, even though the loss from these may be 
 indirectly attributable to some fault or neglect of the crew.' 
 
 He said this bill of lading was not sprung upon the conference 
 which adopted it. On the contrary, it was carefully prepared by 
 a committee composed of representatives of all associations who 
 were interested in the matter. Shipowners were there, under- 
 writers were there, cargo-owners were there, and there was a small 
 delegation of lawyers. Nine associations were represented, and 
 only two of them were shipowners' associations. On the other 
 hand, not one single British shipowner, British underwriter, or 
 British merchant attended the Hamburg conference. He was 
 not able to say how far the same interests were represented from 
 the Continent, but he believed he was correct in stating that the 
 majority of the gentlemen present were jurists who were not suffi- 
 ciently acquainted with the wants of the mercantile world. This 
 absence of the English mercantile world from the conference was 
 easily accounted for : the mercantile world in this country reo-arded 
 the matter as having been settled at Liverpool. But even in the 
 assembly to which he had referred, the Hamburg Bill of Lading 
 was adopted by only 24 against 17 votes. The action of Liverpool 
 had been followed almost universally, while the action of Hamburg 
 
 K K
 
 498 MARITIME LEGISLATION. 
 
 had been almost entirely neglected, the reason being that the 
 Liverpool Bill of Lading met the wants of the mercantile world, 
 while the Hamburg Bill did not. ' Error in judgment,' so far as 
 Eno-lish law was concerned, meant nothing. Either shipowners' 
 sers-ants were negligent or they were not negligent. The question 
 was simply whether there was negligence, and therefore the Ham- 
 burg Bill appeared to give what in reality it did not give. They 
 were there not to discuss what the law ought to be, they were there 
 to discuss what form of bill of lading they should recommend to 
 the mercantile world ; but if the mercantile world would not adopt 
 that form they were wasting their time at that meeting. If, as 
 the President said on Monday, shipowners were unreasonable and 
 would not adopt the form of bill of lading suggested, the Associa- 
 tion might stand aside and leave the matter to be decided by legis- 
 lation. The decision of an important body like that might have 
 considerable influence on legislation, and he therefore drew atten- 
 tion to the question whether there ought to be a change in the law. 
 As it stood the law was very much against the shipowner, because 
 unless he made special contracts he was liable for any kind of neg- 
 ligence on the part of his servants. It was now proposed that the 
 law should step in and make the shipowner liable, although he said 
 by his contract that he was not liable. What about the freedom 
 of contract ? Surely shipowners were able to take care of them- 
 selves ? They were quite able to make their own arrangements. 
 The monopoly argument was nonsense. This was a contract with 
 reorard to the cargo, and nothing else. The shipowner was bound 
 by the terms of this resolution to see that his ship was seaworthy. 
 What more could he do ? There were no passengers on board, and 
 if the shipowner provided a vessel which was seaworthy, in whose 
 hands was the question whether there should be loss of life ? It 
 was, of course, in the hands of the crew. Surely the probabilities 
 were that the crew would look after their own lives ! If they did 
 not, no contract between other parties could affect them at all. Ho 
 was satisfied that in the minds of lawyers there lurked a prejudice 
 on the question, traceable to the old idea that the carrier was to be 
 liabli* for everything but the act of CJod and the Queen's enemy. 
 Souk- of till- -liidgt'S who Inid down that priucijilc liascd it on tlu;
 
 INTEIIXATIOXAL LAW OF AFFREIGIIT.Ml'.XT. VM 
 
 considerution that the carrier was a dangerous kind of man, who 
 might combine with thieves and robbers to take away the goods 
 consigned to him. But did that state of things apply now ? Cer- 
 tainly not ; and shipowners asked for power to contract themselves 
 out of such liabilities. He doubted whether the law could pi'event 
 a contract being made as the parties to it wished. They had seen 
 many fruitless attempts to interfere with the freedom of contract. 
 If they did that, what would bo the result ? They might possibly 
 put the risk on the shoulders of the shipowner, but they would not 
 be able to keep it there. They could not transfer the incurrence 
 of this risk without remunerating the person to whom it was trans- 
 ferred. No thimble-rigging would enable them to get over that. 
 And if there was any force behind the Hamburg resolution it was 
 tiie force of those underwriters who wanted to have their cake and 
 to eat it. He urged the conference to be practical, and to bear in 
 mind they were recommending a document for the acceptance of 
 the mercantile world, and do not let them recommend something 
 with which the mercantile world would have nothing to do. 
 
 Mr. John Glover (London) seconded the motion. He said 
 he would like to remove any prejudice which might exist in the 
 mind of any merchants or other gentlemen present who might not 
 have been able to follow this negligence controversy quite so closely 
 as shipowners had been compelled to do. They were not met to 
 defend bad bills of lading. They had given up that. They all 
 believed there were a good many things in bills of lading in the 
 early days of steamships which were not necessary for the ship- 
 owners, and which were contrary to the public interest. Liverpool, 
 after long and careful consideration, had adopted a rational bill 
 of lading, and they defended that rational bill of ladino-. In the 
 second place, he wished to emphasise the fact that they were not 
 seeking to be exempted from the consequences of their own neoli- 
 gence. So far as a shipowner could make a vessel complete for its 
 intended voyage, it was right that he should be responsible, and 
 the Liverpool Bill of Lading made him responsible. What they 
 were trying to remove was a species of vicarious suffering by which 
 shipowners were made responsible for all the mistakes of the pro- 
 fessional men who were put on board their ships. He held in his 
 
 K K 2
 
 500 MARITIME LEGISLATION. 
 
 hand a report, dated 1872, signed by Mr. Macandrew, whom he 
 was glad to see on the platform to-day. That report contained a 
 neo-lio"ence clause with which he was quite satisfied, and which 
 Liverpool ratified in 1882. This negligence clause had had no 
 effect on merchants in increasing their power of getting paid for 
 damage in the owner's control, for j)remiums had not increased 
 since 1882. Indeed, he ventured to say, that in the last ten years 
 the premiums of insurance on the leading lines to America and 
 the East had fallen by nearly one-half; and what was still more 
 extraordinary was, that the insurance companies had made good 
 profits out of the reduced premiums. Why ? Only one reason 
 was possible — the maritime traffic was greater ; it was carried 
 on with such superior ships, and with such consummate skill ; 
 it was safer, and no one had suffered since the adoption of this 
 negligence clause. The absence of such clauses had involved 
 shipowners in serious losses, and the Courts had become so apt 
 to split hairs that shipowners did not know where they stood. 
 Every shipowner was obliged to insure, that insurance became 
 double insurance, and they all knew the risk of litigation which 
 was involved in double insurance. It was a question who 
 was to pay the loss if the negligence clause was not there. 
 Our English flag was under a disadvantage in this matter. The 
 liability of shipowners abroad was not in person, but in revenue, 
 so that if a ship went to the bottom the matter ended. In this 
 country, though the ship and the freight were lost, the owner 
 could be sued personally. They were, therefore, forced to look 
 at the question in the light of the responsibility which the English 
 law placed upon the shipowner. They were not free to choose 
 their own captains, mates, and engineers. If a man wanted to 
 be a captain, a mate, or an engineer, he had to serve so many 
 years, and go through a series of examinations, such as a doctor 
 would have to go thi'ough, and then he became a professional 
 man. That man exercised a judgment, and shipowners said 
 that it was not fair, when they were restricted in the choice of 
 their servants, that they should be held responsible for the mis- 
 takes of their servants. They therefore asked the conference to 
 rcaflinii tlic Livi-rjjool resolution, because of wliat had ]iai)})on('d
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 501 
 
 since it was adopted in 1882. He did not like to see the Associa- 
 tion on two sides of the question. The discussion of the subject 
 at Liverpool occupied fifty or sixty pages of the report of their 
 proceedings. They discussed the bill of lading line by line, and 
 at last came to a decision, recommending a bill of lading, which 
 they called an International Bill of Lading. They agreed that a 
 uniform bill of lading was not practicable, but they thought it was 
 possible to have separate bills of lading for various trades on the 
 principle of the line laid down in the resolution. Their American 
 friends had a few objections to offer to what was done at Liverpool, 
 but their criticisms were very reasonable, and some of them were 
 met. With reference to this particular question, that of negli- 
 gence, the New York Produce Exchange said : ' This exemption 
 is demanded by the circumstances under which modern steamship 
 traffic is carried on, and is a change eminently just and necessary.' 
 In the great coal trade of England the question was taken up at a 
 conference in London, and a simple bill of lading for the coal 
 trade, embodying a negligence clause, was settled in 1885. In 
 the same year there was the meeting at the Baltic, where it was 
 decided that there should be a conference of merchants and ship- 
 owners to settle the question. Seven merchants and six shipowners 
 were selected ; and, after a great many meetings, they came to a 
 very satisfactory bill of lading, which distinctly confirmed the 
 Liverpool decision. In consequence of what fell from the Presi- 
 dent the other day, he wished to refer to what had been done in 
 Loudon. He understood Mr. Justice Butt to say that the Chamber 
 of Commerce of London had prepared a bill of lading, in which it 
 was denied that the shipowner should have this negligence clause. 
 It was very singular how that happened, but it did not happen. 
 After the Baltic meeting the Chamber of Commerce of London 
 convened a meeting of merchants, from which shipowners were 
 excluded, and appointed a sub-committee. This sub-committee 
 recommended a resolution which would have left the matter in its 
 present uncertain condition ; but when the resolution was brought 
 before the Chamber, the Chamber came to the conclusion that the 
 matter was not ripe for such a step, and it did nothing. Con- 
 sequently it was not right to say that the London Chamber of
 
 502 MARITIME LEGISLATION. 
 
 Commerce was in flivour of the Hamburg decision. He thought 
 Liverpool had a right to comphxin of the action of Dr. Wendt. 
 Why was the decision of Liverpool not considered conclusive ? He 
 did not think it was right to seize the opportunity, when there was 
 no British shipowner present, to reopen a question which had been 
 the subject of such long and careful consideration. He thought 
 he had said enough to show that, if the Association wanted to 
 render any further service in the matter, there was only one course 
 open to them — they could not be on both sides of the question — 
 they arrived at a decision in Liverpool ; they ought to confirm 
 that decision. He appealed to his friend Dr. Wendt to be satisfied. 
 He had scored very well in this controversy. He hoped the Asso- 
 ciation would take a sensible course. He was sure Her Majesty's 
 Government would not consent to interfere with their liberty of 
 contract ; but let the Association take a consistent position and get 
 rid of that which common sense had already so clearly condemned. 
 I said : 1 have been requested by the executive council of this 
 Association to explain the reasons why, after the decision of the 
 Liverpool Congress in 1882, this subject had been reopened and 
 debated at the Hamburg Congress in 1885. They were simply 
 that, soon after it had become known that the Liverpool Congress 
 had decided to relieve shipowners from liability for the negligence 
 of their servants (the masters and crews of their vessels), numerous 
 protests were addressed to the officers of the Association by dif- 
 ferent chambers of commerce and bodies of underwriters, not only 
 in this country', but also in India and Australia, all of which were 
 reported to the Milan Congress in 1883. But further, there had 
 been a great pressure brought to bear upon the executive council 
 by the most important chambers of commerce and underwriting 
 bodies in the interior of Germany — all members of the Associa- 
 tion — to reopen this question ; and when the Senate of Hamburg 
 honoured us with the invitation to hold our conference in that city 
 in 1885, it was decided to make use of that opportunity to do so. 
 As all the members of this Association had due notice oi this 
 intention, not only llirough llic general secretary, but likewise by 
 tlic ])ublic press, which was equally available to such shipowners 
 a- 1i:h| Tidf jriinf'd our Association, it is quite evident ihiit if the
 
 INTERNATIONAL I- AW OF AFFREIGHTMENT. rm 
 
 English shipowners did not think it advisable to see their interests 
 represented at Hamburg, it was not the foidt of the Association. 
 It is well known that I represent as many underwriters of ships as 
 of cargoes. I therefore look at the matter from an impartial point 
 of view; and if I have been in favour of the liability of shipowners, 
 it is because my experience has taught me that nine-tenths of all 
 collisions at sea are clearly caused by the negligence of the crew. 
 But before I sit down, let me add a few words on the most con- 
 spicuous line of argument used with regard to the matter at issue 
 between ship and cargo owners and their respective underwriters. 
 Where a ship has been lost through the fault of the master, and 
 the underwriter of cargo on board has sued the shipowner for his 
 loss, it has often been argued that the underwriter should not be 
 allowed to make such a claim, as he had received a premium for 
 this risk ; and public opinion has frequently been misled by this 
 line of argument. I may therefore be permitted again to refer to 
 the well-known principle that the contract of insurance is solely a 
 contract of indemnity between underwriter and assured. As soon 
 as the underwriter has paid, he acquires all the rights of the 
 assured against third parties ; and as he covers only his insured, 
 and does not also insure the shipowner against the negligence of 
 his servants, I fail to see why he should not make any claim 
 against the shipowner. I have never heard it stated that it is an 
 iniquity if the underwriter of a ship lost by the fault of another 
 vessel recovers the loss from the owner of the latter vessel. This 
 underwriter has likewise received his premium for the risk in 
 question ; and why shovild he be entitled to recover, and the sau'e 
 remedy be refused to the cargo underwriter ? 
 
 Hehr Laeisz (Hamburg) supported the resolution, and said 
 that he believed the general feeling amongst jurists in Germany 
 was in favour of the negligence clause being embodied in the bill 
 of lading. 
 
 Mr. Barnes (London) said this v/as a case in which a good 
 underwriter might exclaim, ' Save me from my friends.' It was 
 only the litigious underwriter who wished to dispute claims. He 
 happened to know that, in consequence of the continual friction 
 between some small underwriters and shipowners, the great lines
 
 o04 MARITIME LEGISLATION. 
 
 had it within their intention to issue contracts to deliver ; and he 
 pat it to Dr. "Wendt and his friends whether six months after that 
 course was taken the underwriters would think that the action of 
 the conference had been wise if it adopted the Hamburg Bill of 
 Ladino- ? The London Chamber of Commerce did not represent in 
 any degree mercantile or shipowners' interests on this question. 
 He knew a case where a small committee of the Chamber carried 
 a resolution, and the secretary forwarded it as representing the 
 opinion of the Chamber. As soon as the facts were known, the 
 merchants of the City, headed by Messrs. Rothschild, signed a 
 protest condemnatory of everything that had been done, and a 
 committee was called of people who understood the question. 
 They censured the secretary and the committee for having gone 
 out of their way and adopted such a course without calling the 
 general members together. No shipowner had ever heard of any 
 such idea as that the London Chamber was going to discuss this 
 question, still less that it was going to send a resolution favouring 
 any particular course. If such a thing had been done, it would 
 be necessary that it should be followed up in some other way by 
 getting an association which would really represent mercantile 
 interests. If nine-tenths of the losses at sea were due to negli- 
 gence, what was the object of insurance, except to provide against 
 loss, and those losses ought to be covered by the underwriters. 
 If that association were to affirm the Hamburg resolution, the 
 great body of shipowners would combine together and have a 
 gigantic insurance association, and they would issue a bill of lading 
 simply receiving the goods and undertaking to deliver them and 
 to cover them against all risks. Shipowners were heartily tired of 
 having to pay for a pipe bursting or other similar things which 
 ought to be paid for by the underwriters, and they had far better 
 meet the difficulty by taking the risk from the outset. 
 
 Mr. Thomas Scrutton (London) said it had come within his 
 duty in the last year or two to examine rather carefully the records 
 made in connection with the only official documents which wo 
 possessed in this country respecting accidents at sea, and unless 
 those rcicords were utterly wrong, there was no foundation for the 
 calculation of Dr. Wendt. The official returns showed that out
 
 INTEKNATIONAL LAW OF AFFREIGHTMENT. 505 
 
 of a total loss of" over G,000 lives, no fewer than 4,043 were tine to 
 the weather alone, and under weather it included heavy gales, 
 hurricanes, calms, currents, fogs, and lightning. He hoped that 
 the Association would distinctly put aside, therefore, the impression 
 that nine-tenths of the accidents were due to the negligence of 
 crews. 
 
 Mr. Wreacks (New York) stated that the negligence clause 
 adopted at New York was the same as that resolved upon at 
 Liverpool, the only difference being the transposition of the clause 
 referring to the want of due diligence on the part of the ship- 
 owner, with the object of emphasising the feeling that under no 
 circumstances should shipowners be excused for their own negli- 
 gence ; but when they exercised all due diligence in the selection 
 of their servants they were protected in the bill of lading. 
 
 M. Clunet (Paris) referred to the decisions on this subject of 
 the Conference on Commercial Law, which met at Antwerp in 1885, 
 and in order to bring the Liverpool Bill of Lading into conformity 
 with its decisions, desired to propose the following amendments to 
 the resolution before the meeting : — 
 
 L ' That the Liverpool form of bill of lading should be amended 
 by the addition, after the words " barratry of the master and crew '' 
 of the words " (but not common theft)." 
 
 2. ' That it be also amended by the addition after the words, 
 ^' error in judgment of the pilot, master, or shipowner," of the 
 words, " (but not the acts of the grossest fault and recklessness)." ' 
 
 Mr. Brown (Glasgow) supported the motion, with which, he 
 said, Glasgow was thoroughly in accord. 
 
 Mr. M' Andrew (London) held that it was no use attempting to 
 introduce a set form of bill of lading when past experience showed 
 that it was in the power of anybody to depart from it if they chose. 
 Legislation is necessary in order that the liabilities of the ship- 
 owners might be defined, and Mr. Glover, instead of hinderino- 
 the action of the London Chamber, should have assisted them in 
 bringing the subject before the Legislature. He would be glad if 
 Mr. Glover would now give them that assistance. 
 
 Mr. Allen (Tiiverpool) supported the resolution. 
 
 Mr. R. Lowndes (Liverpool) thought it would be far better
 
 506 MARITIME LEGISLATION. 
 
 that the conference should pass the resolution than leave the 
 question to be settled by the Legislature. 
 
 Herr Ahlers (Hamburg) urged the appointment of a com- 
 mission to consider the question. 
 
 M. Theodore C. Engels (Antwerp) supported the proposal of 
 :\Ir. Gray Hill. 
 
 Mr. Elisha Smith (Liverpool) complained that only one side 
 of the question had been put forward. He had no objection to 
 the clause, but it would be wrong to let it go forth that the con- 
 ference Avanted only the Liverpool Bill of Lading. The Liverpool 
 Bill of Lading was a compromise. Merchants were prepared to 
 give shipowners all they wanted in this matter. Would ship- 
 owners in return not give them fair play? Merchants would 
 release shipowners from all things which were not under their con- 
 trol, if shipowners would only hold themselves liable for the things 
 that were under their control. If they accepted the Liverjoool Bill 
 of Lading, he promised them that they should hear nothing more 
 on the question. 
 
 The Chairman then put the question. M. Clunet, at the 
 suggestion of the Chairman, withdrew his first amendment, and 
 the second fell to the ground for want of a seconder. 
 
 !Mr. Gray Hill's resolution was then put to the meeting, and 
 carried by an overwhelming majority, upwards of 120 voting in its 
 favour and 1 against ; a result which was natural, as those who could 
 not agree with the resolution, seeing the large body of shipowners 
 and their friends would put them in a minority, abstained from 
 voting altogether. 
 
 After faithfully recording tliis result, I luive now, in 
 order to close the history of this niovenient with the 
 pujjlication of this volume, only to refer to the report of 
 the Koyal Commission on Loss of Life at Sea, to which, 
 as previously stated, the principal firms of the mercantile 
 coiiiiininity of the city of London had addressed a jx'lition, 
 ill whicli they expressed llic opinion that if the Ivoyal 
 ( 'oiiiiuis^ioii slioiild think lil lo reroinmciid llic woi'dinyf
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 507 
 
 of a bill of lading, such recommendatioii might be 
 universally adopted. 
 
 This report, dated August 27, 1887, evidently proves 
 that the Eoyal Commissioners have not thought proper 
 to consider the subject very minutely, or, what is per- 
 haps more likely, did not agree on the wording of such 
 a document as they could be sure would meet general 
 approbation. It contains only the following passages 
 relating to — 
 
 (2). liksponsuhlity of shipowners to charterers and 
 Owners of Cargoes. 
 
 By the common law the shipownei' is responsible to the owners 
 of the cargo which his vessel carries for the seaworthiness of the 
 ship and for the negligent acts of the captain, in the absence of 
 any contract to the contrary. But having regard to the supposed 
 jieculiar character of the trade, the Legislature has for many years 
 given to shipowners the benefit of an exceptional limitation to such 
 responsibility. They are not liable to an extent exceeding 8L per 
 ton on the registered tonnage for injury to property entrusted to 
 their care or to other ships or their cargoes. They have also an 
 entire immunity from liability for loss by fire. There has also 
 grown up of late years a practice among shipowners to make large 
 additional exceptions, by their bills of lading, in respect of their 
 liability. 
 
 Mr. Hollams, who has had a large experience as a solicitor in 
 the conduct of shipping cases, says : ' In my opinion some of the 
 modern bills of lading are objectionable upon the ground that they 
 free the shipowner from his ordinary responsibility and thus pro- 
 duce loss of life and loss of property, and on the ground that they 
 are only nominal contracts. They are not contracts really entered 
 into, they are only contracts by a fiction of the law, which holds 
 that a man taking a bill of lading must be presumed to have 
 adopted it. This is a view which lias been questioned by eminent 
 Judges, but I take it to be the acknowledged rule of law. It is not 
 a contract in fact.'
 
 508 MARITIME LEGISLATION. 
 
 The Royul Commissiou of 1874 recommended that any provision 
 in a bill of lading or other agreement having for its object or effect 
 to avoid or limit the liability of a shipowner in respect of goods 
 shipped under it, should have no legal validity, if the loss has been 
 occasioned by the ship having been sent to sea in an unseaworthy 
 condition, unless he proves that he, or those to whom he commits 
 the management of his business, used all reasonable means to make 
 and keep his vessel seaworthy. 
 
 "We are of the same opinion. 
 
 "VVe think no shipowner ought to be relieved by contract or 
 otherwise from the legal obligation to properly equip, man, pro- 
 vision, outfit, and render said ship seaworthy for performing her 
 intended voyage ; nor from the legal obligation to properly stow 
 and deliver her cargo as agreed by the terms of shipment (except 
 as to the stowage of chartered vessels loaded under directions of 
 the charterer). 
 
 And the ' Summary of Eecommendations ' with which 
 tlie report concludes contains only the following sub. : — 
 
 (12). That any provision in a bill of lading or other agreement 
 having for its object or effect to avoid or limit the liability of a 
 shipowner in respect of goods shipped under it should have no 
 legal validity if the loss has been occasioned by the ship having 
 been sent to sea in an unseaworthy condition, unless he proves that 
 lie or those to whom he commits the management of his business 
 used all reasonable means to make or keep the vessel seaworthy. 
 
 In closing this chapter, let me call attention to the 
 consideration of a few points which seem rather to have 
 })een lost sight of during the controversy. 
 
 One of tlie peculiarities of the contract of Affreight- 
 iiicnt is, lliat it is sometimes defined in ihe charter-party 
 ;iiid sonietinies in the bill of lading, and again both docu- 
 ments have frequently to l)e examined to find the terms 
 upf)]i wliicli the goods arc cnn-icd. Tt is nol always easy 
 to sec uhi<-h is the case in pai-licular circumstances, and
 
 INTERNATIONAL LAW OF AFFREIGHTMENT. 509 
 
 it may not be out of place, therefore, to add here a few 
 words of explanation. 
 
 The charter-party may be either (1) a demise or 
 letting of the ship [locatio navis), or (2) of the ship with 
 the services of her master and crew [locatio navis et 
 ojjerarum magistri et nauticorum), or (3) a sale of the 
 right to have goods conveyed {locatio operis vehendarum 
 mercium). 
 
 The first two charter-parties have nothing to do with 
 the affreightment ; the last is closely connected with it, 
 and may be the one document which alone defines it. 
 
 The bill of lading, on the other hand, is sometimes 
 considered as containing the contract, but, strictly speak- 
 ing, it is never more than evidence of the agreement, and 
 sometimes it is little more than a receipt for the goods. 
 
 Speaking generally, the charter-party to which I have 
 last referred is the sole contract as between the charterer 
 and the shipowner, and in case of any dispute between 
 them the bill of lading is entirely subsidiary to it. These 
 are not, how^ever, the parties alone interested in the 
 affreightment ; the vessel may have been put up as a 
 general ship, or the bills of lading may be endorsed over 
 to third parties, in which case the contract as between 
 the shipowners and the holders (without notice of the 
 charter-party) of the bills of lading is defined simply by 
 the bill of lading. 
 
 As therefore either the charter-party or the bill of 
 lading may be the governing document, it is of the 
 greatest necessity that equal care should be taken that 
 each should accurately describe the contract which it is 
 intended should be entered into. Either party is naturally 
 at liberty to insist on the terms being inserted which he 
 wishes to be applied ; if the other does not consent, the 
 contract need not be made ; but it should be remembered
 
 olO MARITBIE LEGISLATION. 
 
 that on some points, if the document is silent, the law 
 presumes certain conditions. It is in the nature of the 
 thing that these conditions ought to be fair to all parties, 
 and should not l^e altered by express terms unless for 
 very cogent reasons. The principal of these implied 
 conditions are, that the vessel should be seaworthy and 
 reasonably fit to carry the described cargo. There is no 
 presumption of law, however, at least in this country, 
 specifying in what cases the non-performance of the 
 contract should be excused. A carrier by land is by the 
 common law held excused if he is prevented from ful- 
 filling his contract by certain dangers. A carrier by sea 
 is not so protected. It is absolutely necessary, therefore, 
 that the perils intended to be excepted should be fully set 
 down in the charter-party and bill of lading. The diffi- 
 culty of deciding what these excepted perils should be 
 was not great in times gone by. Superior force, whether 
 of the elements or by human agency, has always been 
 considered valid excuse for the non-performance of the 
 contract. Gradually a great number of other exceptions 
 came to be inserted from time to time, and of recent years 
 shipowners have made, as has been seen, strenuous efforts 
 to liave excepted all acts of negligence of the persons 
 placed in charge of their vessels. Why this contention 
 has arisen is not difficult to trace. The adoption of steam 
 has created a revolution in the carrying trade in more ways 
 than one. The business is now done with so much greater 
 expedition, and is so much greater in extent than in the 
 old sailing limes, that owners caiuiot give the jiersonal 
 superN'ision which they used ; accidents and losses are 
 much mor(t IVecjuent, especially by negligence causing 
 collisions and strandings ; competition is greater, and 
 jirofils are smaller. Ovvncis (hcrofore feel the liability 
 for IJK^ir servants' nculiucncc lo a niucli irreater extent
 
 INTEUNxVTIONAL LAW OF AFFREIGHTMENT. oil 
 
 than in times gone by. They may be protected by in- 
 surance, l)ut this does not, on the whole, diminish their 
 rehictancc to lace the liability, for it means enhanced 
 premiums. 
 
 On the other hand, the owners of the cargo and their 
 respective underwriters object, and liave good cause for 
 objecting, to the insertion of the negligence clause. If 
 anyone can diminish the risk of loss by negligence, it is 
 the shipowner, and no one else. He is the employer, and 
 holds the power of dismissal, and this power alone can 
 have any weight in checking neglect of duty on the part 
 of the officers and crew. The cargo-owner is helpless. 
 Once his goods shipped, he has lost control over them, 
 and he never has any influence to bring to bear upon 
 those on board the ship. Ilis opinion — and it seems mani- 
 festly a fair view to take — is that where the power to 
 check negligence is, there should be the responsibility, if 
 notwithstanding loss by negligence does occur. This 
 argument has never been fairly refuted by the ship- 
 owners. Their case, put in plain words, is that they are 
 not bound to accept the liability unless they like ; they 
 do not like, and the shipper may keep his goods, unless 
 he chooses to ship with the negligence clause inserted. 
 
 It may be well to point out that shipowners and 
 shippers and their representatives are not the only, or 
 indeed the chief parties interested in this discussion ; the 
 public have a serious stake in the matter. The greater 
 the loss by negligence, the higher price will the consumer 
 liave to pay, and he is entitled to say, and enforce his 
 opinion through the Legislature, that such course shaU be 
 adopted which naturally must most conduce to diminish- 
 ing loss by negligence and its consequences to his pocket. 
 He has not done so yet in this country, but unless ship- 
 owners accept these natural demands, I shall not be
 
 512 MATIITIME LEGISLATION. 
 
 surprised if he certainly will at no distant time. Why 
 shipowners should insist upon their action in this matter 
 is difficult to see, because, after all, as between them and 
 the shippers, out of whom they make their profits, the 
 whole difficulty is susceptible of a perfectly easy solu- 
 tion, which can be described in one sentence : Accept the 
 responsibility and adjust the freight in accordance. 
 
 The threat which the managers of some of the largest 
 steamship companies have used, that if the shippers and 
 their underwriters decline to consent to the general demand 
 of the shipowners and accept their bills of lading with 
 the negligence clause, they would force them to insure 
 the cfoods themselves against all risks, issuino; a document 
 which would be both bill of lading and policy of in- 
 surance, might certainly obviate a part of the difficulty, 
 but only a part, because there are not very many steam- 
 ship companies, as at present constituted, whose guaran- 
 tees for the values of all the cargoes they happened to 
 carry on board of their vessels would be readily taken, 
 and therefore the matter remains in statu quo.
 
 613 
 
 ni. 
 
 CASE OF THE 'MARIE DE BRABANT: 
 
 To the Right HonouraUe Sir Stafford H. Nortiicote, C.B., M.P., 
 
 Prcsideni of the Board of Trade. 
 
 Sir, — I have the honour to hand to you a memorial drawn up on 
 behalf of certain merchan<-s, subjects of the kingdom of Belgium, 
 regarding a decision of the Judicial Committee of H.M. Privy 
 Council in a matter of appeal from the High Court of Admiralty. 
 
 The appellants were the owners of cargo on board of a Belgian 
 ship, which came into collision with a British ship on the high seas. 
 The British ship was found to blame for the collision, but the redress, 
 which could be awarded to the owners of the Belgian ship and her 
 cargo, was held by the Admiralty Court to be limited by the 
 provisions of the 54th section of the Merchant Shipping Amendment 
 Act to the sum of eight pounds for each ton of the British ship, 
 and the Judicial Committee of H.M. Privy Council confirmed the 
 interpretation which the Admiralty Court had given to that statute. 
 The merchants, on behalf of whom the memorial has been pre- 
 pared, conceive that the British tribunal, in applying the limita- 
 tions of the British municipal law to a case of injury done by a 
 British ship to a Belgian ship and cargo on the high seas, have in- 
 fringed a very important principle of international maritime law, 
 inasmuch as no treaty engagement that such limitation shall apply 
 to Belgian ships in cases of collision beyond the limits of British 
 jurisdiction has been entered into between Great Britain and 
 Belgium, whilst the Belgian tribunals afford to the owners of 
 British ships and cargoes in cases of collision with Belgian ships on 
 the high seas as ample a remedy as heretofore. There is thus no 
 longer any reciprocity between the two nations in respect of the 
 
 L L
 
 514 MAEITDIE LEGISLATION. 
 
 redress which their maritime tribunals afford in cases of collision on 
 the high seas. 
 
 The memorial was originally prepared with the design of in- 
 voldno- the diplomatic intervention of the Belgian Government 
 with Her Majesty's Government in the hope of oljtaining thereby 
 some more adequate compensation for the injury inflicted upon the 
 Belcrian merchants than that which the decision of the British 
 tribunals has supplied. That design having for various reasons 
 been abandoned, I have the honour to submit the subject-matter 
 of the memorial to the attention of the President of the Committee 
 of Privy Council for Ti'ade, in the hope that the principles involved 
 in it may be thoughtfully weighed when the time for the revision 
 of the British Statute Law shall arrive. 
 
 I have the honour to be, Sir, 
 
 Your obedient humble Servant, 
 
 Ernst Emil Wendt. 
 
 15 Fenchui'ch Buildings, Lou'.lon, E.G. : 
 26 November 1866. 
 
 Memorial of J. F. Cail, A. Halot, and Company, of Brus- 
 sels, Merchants, and Others, the Owners of part of the 
 Cargo laden on board the Belgian Steamship ' Marie de 
 Brabant.' 
 
 Your memorialists are Belgian subjects, owners of merchandise 
 laden on board the Belgian screw steamship ' Marie de Brabant,' 
 which sailed from Antwerp, bound to different ports in the Medi- 
 terranean and Black Seas, in the month of April 1863. The 
 Belgian ship was pursuing her voyage in the Mediterranean Sea 
 on May 15, 18G3, when at about 2.30 a.m. she was run into by 
 the British screw steamship ' Amalia,' and was, with all her cargo, 
 totally lost. The British ship, at the time of the collision, was 
 bound for the port of Liverpool, Avhere she arrived on May 26, 
 1863 ; and on June 8 following an action in rem against the 
 British ship was instituted by your memorialists in the High 
 Court of Admiralty of England. 
 
 The Judge, assisted by Trinity Master.'!, heard the cause on Au-. 
 gust 5, 1863, and pronounced the J^ritisli shii) to bo solely to blame.
 
 CASE OF THE 'MARIE DE BRABANT.' 515 
 
 There were other actions brought at the same time against the 
 British ship on behalf of the owners of the Belgian ship, and also 
 on behalf of the owners of other portions of the cargo lost on board 
 her, and the Judge of the Admiralty Court heard and decided all 
 the actions at the same time. 
 
 Your memorialists are perfectly satisfied with the decision of 
 the High Court of Admiralty of England in respect of the blame 
 of the collision, but they find themselves aggrieved by reason of 
 the benefit which they would have derived b}'' proceeding against 
 the British ship in a Belgian Court exercising Admiralty jurisdic- 
 tion. It has always been regarded as one of the advantages of 
 proceeding in rem in the Admiralty, that a foreign plaintiff, in 
 whatever country the Admiralty jurisdiction is exercised, will be 
 entitled to the benefit of the same marine laws which would be 
 administered to him in his own country. Sir Leoline Jenkins, 
 one of the highest of British authorities on matters of maritime 
 law, in reporting to the Crown, that the owners of a French ship 
 might have justice done to them in the Admiralty Court of 
 England, observes : ' Having the authority of two such eminent 
 persons in the law (the Attorney-General and the Solicitor- 
 General) that this cause of spoil is cognisable in the Admiralty, I 
 will only add besides, that it has been always so till some late in- 
 terruptions, and it is not without special satisfaction to a foreign 
 plaintiff that he shall have the benefit of the same marine laws 
 here that we are judged by in his country ' (' Life of Sir Leoline 
 Jenkins,' vol. ii. p. 7G4). 
 
 Your memorialists submit that in the proceedings instituted by 
 them against the British ship in the High Court of Admiralty of 
 England they have not had the benefit of the same marine law 
 in respect of compensation for the damage caused to them by the 
 wrongful navigation of the British ship as would have been ad- 
 ministered to them in their own country if the British ship had 
 come Avithin the jurisdiction of the Belgian Crown, and as would 
 have been administered to the owners of the British ship if they 
 had proceeded in a cause of collision against a Belgian ship in a 
 Belgian Court exercising Admiralty jurisdiction. 
 
 Your memorialists submit that it is a maxim of Admiralty 
 
 I. L 2
 
 516 MARITDIE LEGISLATION. 
 
 law that delictum in respect of a collision between two sLips on 
 the hiffh seas gives rise to a maritime lien, which travels with the 
 wrong-doing ship into whosoever possession it may pass. This 
 doctrine was fully recognised by the Judicial Committee of Her 
 Majesty's Privy Council in the case of the ' Bold Buccleugh ' 
 (Moore's Privy Council Reports, vii. p. 284). This maritime lien 
 is the foundation of a right of action against the wrong-doing 
 ship in all Admiralty Courts ; the action in rem being a proceeding 
 which the Admiralty jurisdiction has inherited from the jurispru- 
 dence of ancient Rome, which, when it authorised an injured party 
 to proceed by way of arrest against the thing itself which had 
 clone the damage, instead of proceeding against the owners of the 
 thing by citing them personally, made the res itself liable to the 
 full extent of its value to make good the plaintiff's damage. This 
 measure of compensation, which is the peculiar feature of the pro- 
 ceeding in rem under the Roman law, has been found by experience 
 to be so consistent with equity and public policy as regards the 
 navio-ation of ships, that it has been incorporated by the Legisla- 
 tures of most European nations into their municipal codes as a 
 governing rule for the Courts which administer their territorial law in 
 regard to the personal wrongs of their subjects, whatever may be 
 the locus delicti as distinguished from the common law of nations 
 in regard to maritime torts on the high seas. The result of this 
 positive legislation has been that, until the judgment recently de- 
 livered by the High Court of Admiralty of England upon the 
 claim of your memorialists, the same measure of compensation in 
 causes of damage on the high seas has been administered in the 
 municipal courts both of Great Britain and of Belgium, and in 
 the Admiralty Court of each country. It is submitted, however, 
 by your memorialists that the foundation upon which the practice 
 of the Admiralty Court in either country rests is different from 
 that upon which the practice of the nuinicipal courts proceeds, 
 and that whilst the latter is the creation of the territorial legisla- 
 ture and may be varied at its pleasure, the former can only be 
 .subject to regulations which an^ consistent with the law of nations. 
 Your niemorialisis have on this head the support of the liiy-h 
 autlioril V of L'ln] Stovvll ;iihI Sir -Inlin Niclioll. who declined to
 
 CASE OF THE 'MARIE DE BRABANT.' 517 
 
 apply the municipal law of Great Britain on occasions when it was 
 sought to invoke it into the Admiralty Court as the governing rule 
 for measuring the compensation to be awarded for damage in suits 
 between British and foreign vessels ; Lord Stowell was called upon 
 to apply the rule of the British statute (53 Geo. Ill, c. 159, s. 1), 
 which limits the responsibility of the owners of ships to the value 
 of the ship and its freight, in the case of the ' Carl Johan,' a 
 Swedish vessel, which had been in collision on the high seas with 
 the ' Edward,' a British vessel ; but he refused, saying that the 
 British statute was one of domestic policy, and that with reference to 
 foreign vessels it only applied to cases where the advantages and 
 disadvantages of such a rule were common to them and to British 
 vessels ; that if all States adopted the same rule there would be no 
 difficulty, but that no such general rule was alleged, and that if 
 the law of Sweden adopted such a rule it would apply to both 
 countries, but that Sweden could not claim the protection of the 
 statute without affording a similar protection to British subjects in 
 similar cases. Sir John Nicholl, in quoting this judgment of Lord 
 Stowell, and commenting upon it, in the case of the ' Girolamo ' 
 (3 Haggard's Admiralty Reports, J 87), observed that — 'Lord 
 Stowell's judgment appears to be a direct authority that these 
 acts, however binding on the municipal courts, nay, possibly, even 
 on the Admiralty Court as between subject and subject, yet cannot 
 be set up by a foreign ship in the Admiralty jurisdiction ; ' and in 
 an earlier part of the same case (p. 184), the same learned Judge 
 explains the principle upon which his view proceeds, remarking 
 that — 'There is another ingredient of some importance in this 
 case, this defence (namely, the statutory limitation of responsibility) 
 is set up by a foreign owner in behalf of a foreign ship in a Court 
 governed by the principles of international law, and a question 
 arises whether a foreigner can in a suit in this Court set up as a 
 defence a municipal law made to regulate municipal courts only, 
 and contrary to those general rules of law which prevail amongst 
 commercial nations. Reciprocity or mutuality has always been 
 considered as one of the leading principles of justice in questions 
 arising between nation and nation. For example, by our municipal 
 law this country established the principle of restitution upon pay-
 
 518 MARITIME LEGISLATION. 
 
 nieiit of salvage in cases of recapture of British property from the 
 enemy notwithstanding pernodacio infra p-cesidia or any of those 
 old general rules by which the property of the former owners was 
 held to be extinguished, but the application of this rule to the 
 property even of our allies in the late war was held to de- 
 pend entirely upon its reciprocity. Thus, in the case of the ' St. 
 lago ' (cited in the ' Santa Cruz,' 1 Chr. Rob. p. 63) the property 
 was adjudged as prize to the recaptors on the ground of its not 
 being shown that restitution of the property of an ally upon pay- 
 ment of salvage was the rule of the Spanish law ; and in the 
 case of the 'Santa Cruz' itself, the same principle was applied 
 with respect to Portugal, but upon the country afterwards en- 
 gaging prospectively to restore upon payment of salvage British 
 property recaptured by Portuguese subjects, the rule was made 
 mutual. 
 
 Your memorialists submit that the reciprocity which Lord 
 Stowell and Sir John Nicholl require as an essential condition to 
 authorise a Court of International Law to apply a positive rule 
 enacted by the Legislature of the State in which the Court sits to 
 the subjects of another State, does not exist unless the Courts of 
 the other State apply the same rule in analogous cases which come 
 before them ; in other words, the Courts of each State must be 
 authorised and allowed by their respective Legislatures to apply one 
 and the same rule ; but the learned Judge of the High Court of 
 Admiralty, in dealing with the claim of your memorialists, has 
 proceeded upon a different view of the principle of reciprocity when 
 he says that — 'If the statute in question (25 & 26 Vict. cap. 10) 
 gives the right of limited liability to the British shipowner and 
 the foreign shipowner alike, if there be perfect reciprocity, then 
 complete justice is done, and the former objection, that it Avas un- 
 just to give relief to the British owner when a similar relief was 
 denied to tlie foreigner, is removed.' Your memorialists submit 
 Ihat Lord Stowell and Sir John Nicholl did not hold themselves 
 precluded by the language of tlie British statute from giving the 
 same relief to both British and foreign sliipowners alike, but they 
 dcclinod to extend to Swedish shipowners the relief which was given 
 ti) all shipowners in general words by the statute, because there was
 
 CASE OF THE ' MAUIE 1)E BRABANT/ 510 
 
 no reciprocity in such matters between Great Britain and Sweden ; in 
 other words, because a different rule prevailed in tho Swedish Courts. 
 
 The mode in which the learned Judge of the High Court of 
 Admiralty came to apply the Biitish statute to the claims of your 
 memorialists may be thus brietiy stated : — 
 
 The owners of the British ship, the defendants, immediately 
 upon the plaintiffs instituting their action in rem against the ship; 
 under the Admiralty law, instituted a suit against the plaintiffs 
 personalli/ in tho Admiralty Court, under the provisions of two 
 British statutes. One of these statutes (24 Vict. c. 10) was passed 
 in 18G1, and enacted, that whenever any ship is under arrest of the 
 High Court of Admiralty, the said Court shall have the same powers 
 as are conferred upon the High Court of Chancery in England by 
 the ninth part of the Merchant Shipping Act, 1854. It may be 
 observed that the ninth part of the Merchant Shipping Act had 
 been held by the learned Judge, up to the passing of 24 Vict. c. 10, 
 to apply only to British ships. 
 
 The other statute (25 & 2G Vict. c. 10), entitled the ' Merchant 
 Shipping Act Amendment Act, 1862,' has enacted that ' the owners of 
 any ship, whether British or foreign, shall not in cases where with- 
 out their actual fault or knowledge any loss or damage is by reason 
 of the improper navigation of such ship caused to any other ship 
 or boat, or to any goods, merchandise, or other things whatever, on 
 board any other ship or boat, be answerable in damages to an 
 aggregate amount exceeding eight pounds for each ton of the ship's 
 tonnage.' 
 
 The learned Judge of the High Court of Admiralty held that 
 he was bound to apply the provisions of this British statute to the 
 claim of your memorialists, although the cause of action did not 
 arise in British waters, and to hold that your memorialists were 
 not entitled to compensation up to the value of the res itself, but 
 only up to the arbitrary limit of eight pounds per ton of the tonnage 
 of the British ship. 
 
 Your memorialists have been led to believe, from stiulying the 
 course of decisions in the High Court of Admiralty of England, 
 that it was an axiom of international law recognised by those 
 Courts that no State has authority to bind by its territorial law
 
 550 MARITIME LEGISLATION. 
 
 any but its own members or such members of other States as are 
 within its territory, and that it was a principle of international 
 jurisprudence admitted by those Courts, that Courts administering 
 the law of nations are bound so to narrow the interpretation of the 
 general language of municipal statutes as to keep them in harmony 
 with the law of nations. Lord Stowell has affirmed this principle 
 in the case of ' Le Louis ' (2 Dodson, 239), when he says that 
 ' neither a British Act of Parliament nor any Commission founded 
 on it can affect any right or interest of foreigners, unless they are 
 founded upon principles and impose regulations which are con- 
 sistent with the law of nations. That is the only law which Great 
 Britain can apply to them, and the generality of any terms em- 
 ployed in an Act of Parliament must be narrowed in construction 
 by a religious adherence thereto.' 
 
 Your memorialists submit that when the owner of an American 
 ship, the ' Wild Ranger,' which had been arrested in a cause of 
 collision in the Admiralty Court by the owner of a British vessel, 
 filed a petition under 24 Vict. c. 10, s. 13, for a declaration of 
 limited liability in its favour under the provisions of the Merchant 
 Shipping Act, 1854, the learned Judge of the High Court of 
 Admiralty held that the American defendant was not within the 
 beneficial operations of the Merchant Shipping Act, 1854, s. 504, 
 although the language of the section is most general, viz. 'JVo 
 oirner of any sea-going .s/np, where any loss or damage is by reason 
 of the improper navigation of such ship without his actual fault or 
 privity caused to any other ship or boat, or to any goods, merchan- 
 dise, or other things whatsoever, on board any other ship or boat, 
 shall be answerable in damages beyond the value of his ship and 
 the freight.' The collision in the case of this American ship had 
 occurred on the high seas, and the American shipowner claimed 
 the benefit of the statute as being the lex fori on the principle that 
 the lex fori is a conclusive rule in all questions of remcdg. But 
 the learned Judge of the High Court of Admiralty held that the 
 Court of Chancery had rightly decided in the case of Cope v. Doherty 
 (2 Dc Gex & Jones, 614) that the British statute giving limited 
 liability did not apply to foreign shij)s on the high seas, and 
 tli.it it made no difference in the construction of the statute
 
 CASE OF THE ' MARIE 1)E BRABANT.' 521 
 
 whether the foreign ship came into collision with another foreign 
 ship, as in Cope v. Doherty, or with a British ship, and the learned 
 Judge went on to cite a passage from the decision of Vice-Chan- 
 cellor Wood in the General Iron Screw Collier Company v. Schur- 
 manns (1 Johnson & Hemming, 193) in the following words : ' I 
 adhere to the opinion which I expressed in Cope v. Doherty, that a 
 foreign ship meeting a British ship on the open ocean cannot be 
 abridged of any of her rights by any Act of the British Legis- 
 lature.' 
 
 The learned Judge of the High Court of Admiralty on this 
 occasion held himself bound to put the same construction on the 
 British statute in regard to limited liability as the Court of 
 Chancery had done, and declined to apply it to the owners of 
 foreign ships which came into collision with British ships on the 
 high seas. 
 
 The same learned Judge, in deciding upon the claims of your 
 memorialists, has held that he was bound to draw a substantial 
 distinction between the words of the Merchant Shipping Act, 
 1854, which says that ^710 owner of anij sea-going sJdp shall be 
 ansiverahle in damages,' and the words of the Merchant Shipping 
 Act Amendment Act, 1862, which says that ' the oivners of any shipj 
 ivhether British or foreign, shall not he ansvxrahle in damages.' 
 
 In construing the latter section he says : ' I must look to see 
 whether it purports to affect the owners of British ships and the 
 owners of foreign ships, and if I find from the words of the section 
 and from the whole context and subject-matter that it was the in- 
 tention of the statute to make limited liability for both British 
 and foreign ships, then I consider there is no serious objection to 
 the British Parliament legislating for foreigners ' (Moore's Privy 
 Council Reports, N.S. i. 475). 
 
 Your memorialists, however, submit that the fact of the British 
 Parliament having legislated for foreigners does not of itself remove 
 all serious objections to its so doing, or establish its right to do so 
 in matters in which the subjects of foreign States are not subject 
 to British jurisdiction, and that the general language of a British 
 statute is not sufficient to warrant the Admiralty Court in applying 
 it to foreigners, unless the place in which the cause of action arose
 
 522 MARITIME LEGISLATION. 
 
 was subject to Britisli jurisdiction. Thus the very words of the 
 Merchant Shipping Act Amendment Act, 1854, which the learned 
 Judge of the High Court of Admiralty distinguishes from the 
 words of the Merchant Shipping Act Amendment Act, 18G2, were 
 held by Vice-Chancellor Wood, in the case of the General Iron 
 Screw Collier Company v. Schurmanns, ' to be applicable to 
 foreigners where such foreigners were witliin British jurisdiction^ 
 and he applied the principle of limited liability, as enacted by the 
 general words of the Act of 1854, to the case of a British ship 
 which had damaged a foreign ship by collision happening within 
 three miles from the shore of the United Kingdom, seeing that 
 the place where the cause of action arose was witliin British juris- 
 diction. This decision of the Vice-Chancellor is referred to in 
 the judgment of the Privy Council upon your memorialists' 
 appeal. 
 
 Your memorialists submit that, having exhausted the ordinary 
 means of redress which were open to them, by instituting pro- 
 ceedings in the High Court of Admiralty of England, and by 
 appeal to the Judicial Committee of Her Majesty's Privy Council, 
 and having been deprived by an interpretation which those Courts 
 have concurred in giving to the municipal law of Great Britain, of 
 the full benefit of the maritime lien, to which they were entitled 
 under the law of nations, they may with reason apply to Her 
 iSIajesty's Government to make good to them their loss, seeing that 
 Her Majesty's Courts afford them no means of obtaining compensa- 
 tion to which they are entitled under the law of nations for the 
 injurious conduct of Her Majesty's subjects in running down 
 the Belgian ship and sinking their merchandise on the high seas. 
 
 Your memorialists submit that the value of their merchandise 
 lost on board the Belgian ship, in consequence of the wrongful act 
 of Her Majesty's subjects on the high seas, is 17,762^, 7s. 4d., 
 whilst they Tiave only been allowed to recover in the Admiralty 
 Court the sum of G,757^. 8s. 'Sd., being their proportion of the 
 statutory value of the British ship, and that whilst that statutory 
 value has been calculated at the rate of 8/. per ton, and no more, 
 under the Merchant Siiippi ng Amendment Act, 18G2, the real 
 valtio of the British ship would have been estimated in the market
 
 CASE OF THE ' MARIE DE BRABANT.' 523 
 
 at about 30Z. per ton, to the full benefit of which value your 
 memorialists submit they are entitled under the law of nations. 
 
 J. F. Cail, Halot, & Co. 
 
 Molenbeck St. Jean, pres Bruxelles, 
 
 le neuffevrier 1800 soixanto-six. 
 
 Vu par nous, Bourgmostre de la Commune de Molenljeck Saint- 
 Jean, pour lei^alisation de la signature de MM. J F. Cail, 
 Halot, & Cie. 
 
 Pr. le Bourgmestre, 
 L'Eclievin, 
 
 Charles Piers. 
 
 Molenbeck St. Jean, le 10 fevrier 1866. 
 
 Vu pour legalisation de la signature de Monsieur 
 Charles Piers, qualifid ci-dessus. 
 Le Gouverneur du Brabant, 
 
 Dubois Thorn. 
 Bruxelles, 10 fevrier 1866. 
 
 I certify the above to be the signature of Mr. Dubois Thorn, 
 Governor of the province of Brabant, in the Kingdom of Belgium. 
 Brussels, this tenth day of February 18G6. 
 
 Thos. Jas. Maltby, 
 II.B.M. Vice-Consitl at Brussels. 
 
 Board of Trade, Whitehall : 
 
 December 28, 1866. 
 
 Sir, — I am directed by the Board of Trade to acknowledge the 
 receipt of your letter of the 2Gth ultimo, forwarding a memorial 
 from certain merchants, subjects of the kingdom of Belgium, 
 and owners of part of the cargo of the Belgian S.S. ' Marie de 
 Brabant,' protesting against the decision of the Judicial Committee 
 of the Vrivj Council in the matter of appeal from the High Court of 
 Admiralty, in the case of the collision between the S.S. 'Marie do 
 Brabant,' and the British S.S. ' Amalia,' by which the liability of 
 the owners of the ' Amalia ' was held to be limited to the sum of 
 8^ per ton upon the tonnage of the ship, under section 54 of the
 
 62* MARITIME LEGISLATION. 
 
 Merchant Shipping Act Amendment Act, 1862, and submitting 
 whether the memorialists are not entitled under the General Maritime 
 Law to compensation for their losses to the full extent of the value of 
 the ' Amalia,' which was supposed to be about 301. per ton, also 
 that the above decision is inconsistent with previous decisions 
 of the Court of Admiralty and other British Courts in similar 
 cases. 
 
 I am to inform you that the case has received the very careful 
 consideration of this Board. 
 
 In reply, I am to observe, in the first place, that the law under 
 which the case in question was decided is based upon the principle 
 of complete reciprocity ; because, had the claim been made by the 
 owners of a British ship or cargo against a foreign ship, the lia- 
 bility of the foreign shipowner would be limited just as much as the 
 liability of a British shipowner is limited where the claim is by 
 a foreigner. It appears further to the Board of Trade that the 
 foreigner who comes into the Courts of this country to sue must 
 take the remedy as he there finds it, and can have no ground for 
 complaint if he is treated in the same manner in which British 
 ships and British subjects are treated in the same Courts. 
 
 I am to add that the Board of Trade are not aware that there is 
 any uniform maritime law binding upon different nations by which 
 the measure and limit of liability in case of collisions on the high 
 seas is determined. Different nations may and do fix different 
 measures and limits, and all that can be required by principles of 
 reciprocity is, that foreign shipowners shall have the same rights 
 and the same limit of liability as shipowners belonging to this 
 country. 
 
 Under these circumstances I am to I'equest that you will be so 
 good as to inform the memorialists that whilst the Court of law has 
 in the case in question decided as it was bound to do, according to 
 tiie statute law of the country, there is not, in the opinion of the 
 Board of Trade, any reason to suppose that the decision is incon- 
 sistent with the principles of international maritime law. 
 
 I am, Sir, your obedient Servant, 
 
 T. 11. Farker. 
 E. E. WeiuU, Esq.
 
 CASE OF THE ^ MARIE DE BRABANT.' S25 
 
 The Secretary, Board of Trade, WJiitehall, S. W. 
 
 8ir, — I am favoured with your communication of the 28th 
 instant, and take the earliest opportunity of expressing my grateful 
 thanks to my Lords for the careful consideration which you infoi-m 
 me has been given to the memorial laid before them by me in the 
 case of the ' Marie de Brabant,' and being thoroughly convinced 
 that a reconsideration of the matter would very materially alter the 
 views by which the revision of the Merchant Shipping Act will 
 be influenced, I feel it my duty, in a few words, to express my 
 regret that the Board of Trade should have thought it necessary 
 to proclaim so decidedly their adherence to the principles laid 
 down by the judicial authorities before whom the case was heard ; 
 and also to point out how those principles, and the arguments by 
 which they are supported, appear to me to be faulty and untenable. 
 
 The whole point at issue seems to rest upon the true meaning 
 of the word ' reciprocity,' for Dr. Lushington in his judgment 
 says : ' If the statute in question gives the right of limited liability 
 to the British shipowner and the foreign shipowner alike, if there 
 be perfect reciprocity, then complete justice is done,' while the 
 Board of Trade now adopt the same mode of expression, and say 
 that the law in question ' is based upon the principle of complete 
 reciprocity,' because a British and a foreign ship would, in our 
 Courts, be treated alike. 
 
 Now, I venture to refer to the dictionaries for the exact 
 meaning of the word ' reciprocity,' and I find Johnson defines it 
 as a ' reciprocal obligation,' while ' reciprocal ' he holds to mean, 
 * acting in vicissitude — mutual — done by each to each — mutually 
 interchangable.' Webster defines the word ' reciprocity ' to be 
 ' mutual action and reaction,' The meaning which I claim for the 
 jexpression is quite in accordance with these authorities, and I 
 venture to submit that it cannot properly be narrowed into a 
 synonym for * similarity or impartiality,' as has been done in the 
 case in question. 
 
 By way of illustration, I will assume A and B to be the British 
 and Belgian Legislatures respectively ; C to be a British, and D a 
 Belgian shipowner. ]\[y contention is, that the Courts of A" should
 
 526 MARITIME LEGISLATION. 
 
 give to D the same relief as, cccteris iKvnhus, B would give to C, 
 and vice versa ; in other words, C and D should know that, whether 
 they apply to A or B, the same justice would be done them ; this 
 is complete reciprocity. The narrower view is, that all obligations 
 have been fulfilled if A treats C and D alike, leaving B out of the 
 question altogether ; this is impartiality. The former is the 
 proper basis of International Law ; the latter of the more narrow 
 municipal legislation. 
 
 The further argument that a foreigner coming to our Courts to 
 sue must take the same remedy as we give to our own ships may, 
 I think, be disposed of in a few words. For this purpose it is only 
 necessary to point out that proceedings for damage must, in a ma- 
 jority of cases, be taken before the Courts of the country to which 
 the wrong-doer belongs. The owner of a British ship sunk on the 
 high seas by the default of a Belgian would not be likely to wait 
 until he might happen to find the Belgian ship in one of our own 
 ports, but would at once go to Belgium to claim redress. The 
 effect of the recent decisions is, therefore, to give immunity to our 
 own subject when he is the wrong- doer, leaving him to obtain his 
 remedy in full in a foreign Court, when he is in the right ! 
 
 In conclusion, as by the comity of nations certain principles of 
 International Law have been generally adopted and adhered to, so 
 the principle first established, as I am advised, by the Code de 
 Commerce, was almost universally adhered to, viz. that the damage 
 caused should be made good by the wrong-doing ship and freight 
 as far as their value went ; and this became, therefore, a funda- 
 mental principle of General Maritime Law, not adopted by treaty 
 obligations, but by the uniform decisions of the Courts of those 
 countries whose subjects were mostly interested in maritime inter- 
 course, viz. France, the United States, and Great Britain, and so 
 remained until our legislation of 1862. — 1 have the honour to be, 
 
 (Sir, 
 
 Your most obedient Servant, 
 
 E. E. Wendt. 
 
 15 Fenclmrch Buildings : December 31, 1806.
 
 IV. 
 OBSERVATIONS ON 
 
 17 & 18 Vict. cap. 104. Tlie Mercliant Shipping Act, 
 1854. 
 
 17 & 18 Vict. cap. 120. The Merchant Shipping Repeal 
 
 Act, 1854. 
 
 18 & 19 Vict. cap. 91. The Merchant Shipping Act 
 
 Amendment Act, 1855. 
 25 & 26 Vict. cap. 63. The Merchant Shipping Act 
 Amendment Act, 1862. 
 
 15 Fenchurch Buildings, 
 
 London : December 1866. 
 
 Intkoductory Remarks. 
 
 It is impossible to deny that tlie issuing of the Merchant 
 Shipping Act (17 & 18 Vict. cap. 104), 1854, was in so 
 far a complete success, as it not only brought into opera- 
 tion very useful enactments on matters connected with 
 the Maritime Law of the country, which had been pre- 
 viously entirely neglected by the Legislature, but has 
 proved beyond doubt that when in course of time this 
 Principal Act with its Repeal Act (17 & 18 Vict. cap. 
 120), 1854, and its Amendment Acts (18 & 19 Vict. cap. 
 91), 1855, and (25 & 26 Vict. cap. 63), 1862, should have 
 been properly revised, so complete and efficient a codiH- 
 cation could be arrived at that even foreign Governments 
 would acknowledge its usefulness, and would not be slow 
 in adopting it without much diplomatic interference ; by
 
 628 MARITIME LEGISLATION. 
 
 this hitlierto unusual but certain jirocess the chances are 
 not very remote that the Legislature of our country may 
 be able to lay the foundation of what is acknowledged to 
 be o"enerally wanting — a Codification of International and 
 General Maritime Law. 
 
 No power is so well able to take the initiative in so 
 noble a design as Great Britain, but I admit the difficulties 
 can only be overpowered by doing justice to all acknow- 
 ledged international principles, and by not attempting to 
 particularise too much. 
 
 The more general the views taken in fixing upon prin- 
 ciples, the greater the chances of our final success. 
 
 The following observations have been prepared with 
 the intention that whenever the Board of Trade should 
 think the time arrived for a proper revision of the above 
 Acts — which I sincerely hope is not far distant — they 
 may be considered as suggestions of a mind for thirty 
 years practically engaged in treating matters of Liter- 
 national and General Maritime Law. 
 
 That one complete Act would generally be preferred 
 to another Amendment Act I ought not to omit to state, 
 and, although enactments as to the Law of General 
 AverafTe, of Freight, of Bottomry, and of Marine Lisurance 
 would be very desirable indeed, I w^ould rather recom- 
 mend the postponement of legislation on the two last 
 subjects. Bottomry and Marine Lisurance, than see further 
 delayed what may l)e called the issue of the first or prin- 
 cipal Code on matters of General Maritime Law. 
 
 The embodying into the new Maritime Law of the 
 International General Average Eules (framed at York in 
 18G4, under the auspices of the late Lord Chief Baron, 
 Sir Fitzroy Kelly, and of Lord rcn/ance) and the Tnter- 
 ii:ilioii;il I/iw of Ani-cighlniciil (fV;iincd at Shefiield i?i ISGT),
 
 MERCHANT SHIPPING ACT, 1854. 529 
 
 midcr the auspices of the then Queen's Advocate, Sir 
 liobert Philiiniore ^) would undoubtedly be very accept- 
 able to the mercantile community in general. 
 
 How far an alteration in tlie present system of stating 
 averages could improve its efTiciency by establishing a 
 state of things similar to that in practice on the Continent 
 will have to be very carefully considered. 
 
 I think it wonld not be dillicult to issue a regulation 
 which, without at all interfering with the independent 
 action of the average stater, would more than hitherto 
 secure a proper execution of the average statements, and 
 prevent the ridiculous delay which now only too frequently 
 takes place before a definite settlement of questions of 
 General Average can be arrived at, to the great prejudice 
 of all parties concerned.^ 
 
 17 & 18 Vict. cap. 101. 
 
 the merchant shipping act, 1854. 
 
 Part II. — BritisJi Shi^is — Their Ownersliijp, Measurement and 
 
 Rogistri/. 
 
 18. No ship shall be deemed to be a BritisJi. ship unless she be- 
 longs wholly to Owners of the following description ; that is to say : — 
 1. Natural-born British subjects: 
 
 Provided that no natural-born subject who has taken the 
 oath of allegiance to any foreign sovereign or state shall 
 be entitled to be such Owner as aforesaid, unless he has, 
 subsequently to taking such last-mentioned oath, taken 
 the oath of allegiance to Her Majesty, and is and con- 
 tinues to be during the whole period of his so being, an 
 Owner, resident in some place within Her IMajesty's 
 dominions ; or, if not so resident, memlier of a British 
 
 ' Late Judge of the High Court of Adminilty. 
 
 ^ Since these observations were made, the Average Adjusters' Asso- 
 ciation has been formed, which has caused a decided improvement in the state 
 of things here complained of. 
 
 M M
 
 rm MARITDIE LEGISLATION. 
 
 factory, or partner in a house actually carrying on busi- 
 ness in the United Kingdom, or in some other place 
 within Her Majesty's dominions. 
 2. Persons made denizens by letters of denization, or naturalised 
 by or pursuant to any Act of the Imperial Legislature, 
 or by or pursuant to any Act or ordinance of the proper 
 legislative authority in any British possession. 
 Provided that such persons are, and continue to be, during 
 the whole period of their so being Owners, resident in 
 some place within Her Majesty's dominions, or, if not 
 so resident, members of a British factory, or partners in 
 a house actually carrying on business in the United 
 Kingdom, or in some other place within Her Majesty's 
 dominions, and have taken the oath of allegiance to Her 
 Majesty subsequently to the period of their being so 
 made denizens or naturalised. 
 3. Bodies corporate established under, subject to the laws of, 
 and having their principal place of business in the United 
 Kingdom, or some British possession. 
 
 It is evident that this section does not sanction the 
 bearing allegiance to two Sovereigns and owning vessels 
 under their two respective flags at the same time ; never- 
 theless it is a fact that a naturalised British subject owning 
 a vessel or vessels registered at the London Custom House, 
 has during the time of his residence in tliis country reas- 
 sumed his Prussian nationality, become a citizen and mer- 
 cliant in one of the Prussian ports, and owns vessels under 
 llie Prussian as well as under the British flag. The conse 
 (juences which may only too easily arise from such a state 
 of tilings in case of war are apparent. A perusal of the 
 return of the number and tonnage of American vessels sold 
 to British subjects in the year 1863 most clearly shows the 
 t(!mptation to wliidi unscni})ulous persons are exposed in 
 stu-h times, and the necessity of more strict regulations. I 
 \v(;uld su£££fest tlic .•iddilioii ofllic followiiiL'' : —
 
 :\lEriCITANT STIIITING ACT, 1854. 531 
 
 (4) 'The r'm-lil 1(» own a l)i'itisli sliip ceases at any 
 time that a person, alt hou^h residing witliin Her 
 Majesty's dominions, Ix'comes citizen or iiiprcliant 
 in anotlier country." 
 
 VwiV 111. — MdMers and Seamen. 
 
 lOl). The various provisions of the tliird pai't of lliis Act shall 
 have tlie f illowiuii^ applications, unless the context or suhjcet- 
 niatter requires a different ai)plication; (that is to say), 
 
 So much of the third part of this Act as relates to the delivery 
 or transmission of lists of Crews to the Registrar-General of Sea- 
 men shall apply to all Fishing Vessels belonging to the United 
 Kingdom, whether employed exclusivi^ on the Coasts of the 
 United Kingdom or not ; to all ships belonging to the Triniti/ 
 House, or the Commissioners of Northern Lighthouses, constituted 
 as hereinafter mentioned, or the Port of DuUin Corporation, and 
 to all pleasure Yachts, and to the Owners, Masters, and Crews of 
 such ships : 
 
 So much of the third part of this Act as relates to the delivery 
 and transmission of lists of Crews, and to the Wages and Effects of 
 deceased Seamen and Apprentices, shall apply to all sea-going 
 British ships, wherever registered, of which the Crews are discharged 
 or whose final port or destination is in the United Kingdom, and to 
 the Owners, Masters, and Crews of such ships : 
 
 So much of the third part of this Act as relates to the shipping 
 and discharge of Seamen in the United Kingdom shall apply to all 
 sea-going British ships, wherever registered, and to the Owners, 
 Masters, and Crews of such sliips : 
 
 So much of the third part of this Act as relates to Seamen 
 volunteering into the lloyal Navy shall apply to all sea-goino- 
 Briiish ships, wherever registered, and to the Owners, Masters, and 
 Crews of such ships, whei-ever the same mav be : 
 
 So much of the third part of this Act as relates to riglits to 
 Wages and remedies for the recovery thereof; to the shipping and 
 discharge of Seamen in foreign ports ; to leaving Seamen abroad 
 and to the relief of Seamen in distress in foreign ports; to the 
 
 M ^t 2
 
 532 MARITIME LEGISLATION. 
 
 pro\4sions, health, and accomuiodation of Seamen ; to the power of 
 Seamen to make complaints; to the protection of Seamen from 
 imposition; to discipline ; to Naval Courts on the high seas and 
 abroad ; and to crimes committed abroad ; shall apply to all ships 
 reo-istered in any of Her Majesty's dominions abroad, when such 
 ships are out of the jurisdiction of their respective Governments, 
 and to the Owners, Masters, and Crews of such ships : 
 
 And the whole of the third part of this Act shall apply to all 
 sea-going ships registered in the United Kingdom (except such as 
 are exclusively employed in fishing on the coasts of the United 
 Kingdom, and such as belong to the Trinity House, the Com- 
 missioners of Northern Lighthouses, or the Port of BaUin Corpora- 
 tion, and also except pleasure Yachts), and also to all ships regis- 
 tered in any British possession and employed in trading or going 
 between any place in the United Kingdom and any place or places 
 not situate in the possession in which such ships are registered, 
 and to the 0\viiers, Masters, and Crews of such ships respectively, 
 wherever the same may be. 
 
 Under the head of provisions applicable to ' Colonial 
 Ships ' should be inserted the words : ' Examinations and 
 Certificates of Masters and Mates.' 
 
 The present system of rendering examinations not 
 oblif'ator}' on all masters and mates sailing vessels under 
 the British flag must improperly and unjustly confer 
 advantages on colonial ships to which they are not en- 
 titled, as scarcely any merchant or underwriter is aware 
 of the disadvantages to which he may possibly subject his 
 property on board of a vessel the navigation of which, 
 although under the British flag, is not conducted by two 
 oflicers whose competency is vouched for, and who con- 
 sequently cannot be made to bear, what is almost the 
 only eflective punishment in case of misconduct, viz. 
 the cancelling or suspending of their respective cer- 
 tificates. 
 
 Ill the cMsc of llic ''J'i';iir wliicli I l)i-( )Ul'1iI \() llie
 
 MERCHANT SHIPPING ACT, 1854. 533 
 
 notice of the Board of Trade in 18G8, tlie disadvantages 
 of such a state of things were made most apparent, and 
 in the case of the ' Lucy,' Captain Dahl, which was lost 
 in 18G4: while on a voyage from Capetown to East London, 
 and in which most suspicious circumstances came to light, 
 no satisfactory result was arrived at, because neither 
 master nor mate had any certificate whatever. I there- 
 fore do not imagine any grave reasons will be adduced 
 against the suggested alteration, with which, of course, 
 an exact definition of the home trade of each colony would 
 be combined. 
 
 At all events, public justice demands that the differ- 
 ences which the law permits in the connnand and naviga- 
 tion of British vessels shall be so conspicuously made 
 known that no merchant or underwriter is further misled 
 upon the subject in question.^ 
 
 ' Lloyd's list of August 29 contains the following striking confirmation of 
 the above views expressed by me several months previously : — 
 
 ' A cojjy of the following despatch from the Governor of the Straits 
 Settlements, referring to the circmnstance that large New South Wales ships 
 are allowed to sail in the China seas without certificated ofiicers, has been 
 received from the Board of Trade. 
 
 ' Lloyd's : August 29, 1807. 
 
 ' Government House, Singapore ; July 4, 18G7. 
 
 ' My Lord Dulve, — Ki an enquiry recently held here by a Marine Court 
 into the circumstances attending the stranding of the British barque "Othello," 
 oi Sydney, Official No. 4'J,281, of 342 tons burthen, bound from Manilla to 
 Sydney, it appeared from the evidence of the master, Mr. William Sulhvan, 
 who was also the owner, that he had no certificate of competency, or service, 
 having been in the colonies since 1827, and during thirty years as master of 
 ships. The mate, Duncan McDougall, also stated that he had no certificate 
 of competency, or service. 
 
 ' 2. I presume your Grace will consider it proper that these circumstances 
 should be brought to the notice of the Board of Trade, as although under the 
 existing law there may be no means of compelling masters and mates of 
 vessels tradmg solely in tlie colonies to have certificates of comi)etcncy, it is 
 probably not known to underwriters in England that large New South Wales 
 shix)s are allowed to sail in the China Seas without certificated ofiicers. 
 ' I have, iiicc. 
 
 (Signed) ' H. St. Georgk Okd. 
 
 'His (irace the Duke of Buckingiuim and Cliandos, &c'.'
 
 Ml MAi:iTlME LlXaSLA'JIOX. 
 
 Volimteeriruj in the Navij. 
 
 21 i. Any Seaman may leave liis ship for the purpose of forth- 
 wirh entering into the Naval Service of Her Majesty, and such 
 leavino- his ship shall not be deemed a desertion therefrom, and 
 shall not render him liable to any punishment or forfeiture what- 
 ever ; and all stipulations introduced into any agreement whereby 
 anv Seaman is declared to incur any forfeiture or be expo&ed to 
 anv loss in case he enters into Her Majesty's Naval Service shall be 
 void, and every Master or Owner who causes any such stipulation to 
 be so introduced shall incur a penalty not exceeding twenty pounds. 
 
 215. Whenever any Seaman, without having previously com- 
 mitted any act amounting to and treated by the Master as deser- 
 tion, leaves his ship in order to enter into the Naval Service of 
 Her Majesty, and is received into such service, the Master shall 
 deliver to him his clothes and efiects on board such ship, and shall 
 pay the proportionate amount of his wages down to the time of 
 such entry, subject to all just deductions, as follows ; (that is to 
 say), the ]\Iaster of the said ship shall pay the same to the ofhcer 
 authorised to receive such Seaman into Her Majesty's service, either 
 in money or by bill drawn upon the Owner, and payable at sight 
 to the order of The Accountant-General of the Navy ; and the 
 receipt of such officer shall be a discharge for the money or bill so 
 given ; and such bill shall be exempt from stamp duty ; and if 
 such wages are paid in money, such money shall be credited in the 
 ^fuster-book of the ship to the account of the said Seaman ; and 
 if such wages are paid by bill, such bill shall be nottd in the said 
 Mu.ster-book, and shall be sent to the said Accountant-General, who 
 shall present the same, or cause the same to be presented for payment, 
 and shall en-dit the produce thereof to the account of the said Sea- 
 man ; and such money or produce (as the case may be) shall not 
 be paid to the said Seaman until the time at which he would have 
 been entitled to receive the same if he had remained in the service 
 of the shi[) which he liad so quitted as aforesaid ; and if any such 
 bill is not duly paid when presented, the said Accountant-General, 
 or the Seaman on whose behalf the same is given, may sue thereon, 
 or may recover the wages due by all ru' any (tithe means ])y which
 
 MERCHANT SHIPPING ACT, 1854. 635 
 
 wages due to Merchant Seamen are recoverable ; and if upon any 
 Seaman leaving his ship in the manner and for the purpose afore- 
 said, the Master fails to deliver his clothes and effects, or to pay 
 his wages as hereinbefore re(piired, he shall, in addition to his 
 liability to pay and deliver the same, incur a penalty not exceeding 
 t-.venty pounds ; provided that no officer who receives any such bill 
 as aforesaid shall be subject to any liability in respect thereof, except 
 for the safe custody thereof, until sent to the said Accountant- 
 General as aforesaid. 
 
 21G. If upon any Seaman leaving his ship for the purpose of 
 entering the Naval Service of Her Majesty, the Owner or Master 
 of such ship shows to the satisfaction of the Admiralty that he has 
 paid or properly rendered himself liable to pay an advance of wages 
 to or on account of such Seaman, and that such Seaman has not at 
 the time of quitting his ship duly earned such advance by service 
 therein, and, in the case of such liability as aforesaid, if such 
 Owner or Master actually satisfies the same, it shall be lawful for 
 the Admiralty to pay to such Owner or Master so much of such 
 advance as has not been duly earned, and to deduct the sum so 
 paid from the wages of the Seaman earned, or to be earned, in the 
 Naval Service of Her Majesty. 
 
 217. If, in consequence of any Seaman so leaving his ship 
 without the consent of the Master or Owner thereof, it becomes 
 necessary for the safety and proper Navigation of the said ship to 
 engage a substitute or substitutes, and if the wages or other re- 
 muneration paid to such substitute or substitutes for subsequent 
 service exceed the wages or remuneration which would have been 
 payable to the said Seaman under his agreement for similar service, 
 the Master or Owner of the said ship may apply to the llegistrar 
 of the High Court of Admiralty in England for a certificate 
 authorising the repayment of such excess ; and such application 
 shall be in such form, and shall be accompanied by such documents, 
 and by such statements, whether on oath or otherwise, as the Judge 
 of the said Court from time to time directs. 
 
 218. The said Registrar shall, upon receiving any such appli- 
 cation as aforesaid, give notice thereof in writing, and of the sum 
 claimed, to the Secretary to the Admiralty, and shall prtceed (o
 
 50(3 MAIIITIME LEGISLATION. 
 
 examine the said application, and may call upon the Registrar- 
 General of Seamen to produce any papers in his possession relating 
 thereto, and may call for further evidence ; and if the whole of the 
 claim appears to him to be just, he shall give a certificate accord- 
 ingly ; but if he considers that such claim, or any part thereof, is 
 not just, he shall give notice of such his opinion in writing, under 
 his hand, to the person making the said application, or his attorney 
 or agent ; and if within sixteen days from the giving of such 
 notice such person does not leave, or cause to be left, at the office 
 of the Reofistrar of the said Court a written notice demanding that 
 the said application shall be referred to the Judge of the said Court, 
 then the said Registrar shall finally decide thereon, and certify 
 accordingh' ; but if such notice is left as aforesaid, then the said 
 ap])licatiou shall ttand referred to the said Judge in his chambers, 
 and his decision thereon shall be final, and the said Registrar shall 
 certify the same accordingly ; and the said Registrar and Judge 
 respectively shall, in every proceeding under this Act, have full 
 power to administer oaths, and to exercise all the ordinary powers 
 of the Court, as in any other proceeding within its jurisdiction : 
 and the said Registrar or Judge (as the case may be) may, if he 
 thinks fit, allow for the costs of any proceeding under this Act 
 any sum not exceeding five f)Ouuds for each Seaman so quitting 
 his ship as aforesaid; and such sum shall be added to the sum 
 allowed, and shall be certified by the said Registrar accordingly. 
 
 219. Every certificate so given shall be sent by post or other- 
 wise to the person making the application, his attorney or agent, 
 and a copy thereof shall be sent to the Accountant-General of the 
 Navy ; and such Accountant-General shall, upon delivery to him 
 of the said original certificate, together with a receipt in writing, 
 |)iii'|iiirtliig to be a receipt from the Master or Owner making the 
 application, pay to the person delivering the same out of the 
 moneys applicable to the Naval Service of her Majesty, and granted 
 by Parliament for the purpose, the amount mentioned in such 
 certificate ; and such certificate and receipt shall absolutely discharge 
 the said Accounlanl-ljicneral and Her Majesty from all liability in 
 respect of the m(jn('ys so paid, or of the said application. 
 
 220. I'iVcry pcrsou who, in making or sui)])orting any such
 
 MERCHANT SHIPPING ACT, 1854. 5:57 
 
 application, as aforesaid, to the Registrar of the High Court of 
 Adiuiralty, forges, assists in forging, or procures to bo forged, or 
 fraudulently alters, assists in fraudulently altering, or procures to 
 be fraudiiK'iitly altered, any document, and every person who, in 
 making or supjjorting any such application, presents or makes use 
 of any such forged or altered document, or who, in making or 
 supporting any such application, makes or gives, or assists in 
 making or giving, or ])n)cures to be made or given, any false 
 evidence or representation, knowing the same to be false, shall be 
 deemed guilty of a misdemeanour. 
 
 Volunteering in the Xdvy. — Cases have frequently oc- 
 curred where vessels have ])een entirely unable to complete 
 their crews in consequence of volunteering into the Navy, 
 and very serious losses have thereby arisen to the owners 
 and other parties concerned ; the mere restitution of dif- 
 ferences in wages seems therefore not to be equitable, 
 and, in fact, in the margin to clause 217 it is stated as 
 follows, viz. : ' If new Seamen are emjaiyed instead of the 
 original Seamen, the owner may apply for repayment of 
 any extra expense he has been put to.' This, I think, 
 should be clearly embodied in the clause itself, and not 
 only excess of wages, but all other exjjenses and a reason- 
 able sum for detention should, when clearly proved, be 
 cheerfully allowed to the parties aggrieved. 
 
 237. Every person w^ho, not being in Her Majesty's Service, 
 and not being duly authorised by law for the purpose, goes on 
 board any ship about to arrive at the place of her destination, 
 before her actual arrival in dock or at the place of her discharge, 
 without the permission of the Master, shall for every such offence 
 incur a penalty not exceeding twenty pounds ; and the Master or 
 person in charge of such ship may take any such person so going 
 on board as aforesaid info custody, uiul tldiver him up forthwith to 
 any constable or peace ollicer, to be by liini taken before a Justice
 
 o;38 MARITIME LEGISLATION. 
 
 or justices or the sherifl" of the county in Scotland^ and to be dealt 
 with according to the provisions of tliis Act.' 
 
 238. If, within twenty-four hours after the arrival of any ship 
 at any port in the United Kingdom, any person then being on 
 board such ship solicits any Seaman to become a lodger at the 
 house of any person letting lodgings for hire, or takes out of such 
 ship any effects of any Seaman, except under his personal direction 
 and with the permission of the Master, he shall for every such 
 ofience incur a penalty not exceeding five pounds. 
 
 The frequent reports of cases of infringement of these 
 two clauses prove evidently that either the punishments 
 attached to the offences enumerated are not sufficiently 
 severe, or the difficulty of bringing offenders to justice is 
 greater than previously anticipated. One of the most 
 noted places in this respect is Cardiff, and it is quite clear 
 that some very different and more efficient measure must 
 Ije taken in order to stop these evil practices. 
 
 2-43. Whenever any Seaman who has been lawfully engaged, or 
 any Apprentice to the sea service, commits any of the following 
 oH'euces, he shall be liable to be punished summarily as follows; 
 (that is to say), 
 
 (Ij Tor desertion he shall be liable to imprisonment for any 
 period not exceeding twelve weeks, with or without 
 hard laijour, and also to forfeit all or any part of the 
 clothes and effects lie leaves on board, and all or any 
 part of the wages or emoluments which he has then 
 earned, and also, if such desertion takes place abroad, 
 at the discretion of the Court, to forfeit all or any part 
 of the wages or emoluments he may earn in any other 
 ship in which he may be employed until his next 
 return to the United Kingdom, and to satisfy any 
 excess of wages paid Ijy the Master or Owner of the 
 
 ' 'riiis Kcctioii lius Hince Ixon iiiiulc a littl*' more cHicucious by § o of the 
 .M< reliant Scaiueii (I'fiMiiciil nl' Wa^f's) Ael. IHHU.
 
 MEKCIIAXT SHIPPING ACT, 1851. 5;jo 
 
 ship from which he tk'serts to .my siibstitutu I'liguo-fd 
 in Ills i)hice at a higher rate of wages than the rate 
 stipulated to be paid to him : 
 (2j lun- neglecting or refusing, without reasonable cause, to 
 join his ship, or to proceed to sea in his ship, or for 
 absence without leave at any time within twenty-four 
 hours of the ship's sailing from any port either at the 
 commencement or during the progress of any voyage, 
 or for absence at any time without leave and without 
 sufficient reason from his ship, or from his duty not 
 amounting to desertion or not treated as such by the 
 ]\laster, he shall be liable to imprisonment for any period 
 not exceeding ten wrecks, with or without hiird labour, 
 and also, at the discretion of the Court, to forfeit out of 
 his wages a sum not exceeding the amount of two days' 
 pay, and in addition for every twenty-four hours of 
 absence either a sum not exceeding six days' pay, or 
 any expenses which have been properly incurred in 
 hiring a substitute : 
 (■'!) For quitting the ship without leave after her arrival at her 
 port of delivery and before she is placed in security, he 
 shall be liable to forfeit out of his wages a sum not 
 exceeding one mouth's pay : 
 (!) For wilful disobedience to any lawful command he shall be 
 liable to imprisonmnent for any period not exceeding 
 four weeks, with or without hard labour, and also, at 
 the discretion of the Court, to forfeit out of his wages a 
 sum not exceeding two days' pay : 
 (o) For continued wilful disobedience to law^ful commands, oi- 
 continued wilful neglect of duty, he shall be liable to 
 imprisonment for any period not exceeding twelve weeks 
 with or without hard labour, and also, at the discretion 
 of the Court, to forfeit for every twenty-four hours' con- 
 tinuance of such disobedience or neglect, either a sum 
 not exceeding six days' pay or any expenses which luive 
 been propei'ly incurred in hiring a substitute : 
 (()) For assaulting any Master or mate he shall be liable to im-
 
 5J0 MARITIME LEGISLATION. 
 
 prisoument for any period not exceeding twelve weeks, 
 with or without bard labour : 
 
 (7) For combining with any other or others of the crew to 
 
 disobey lawful commands, or to neglect duty, or to 
 impede the navigation of the ship or the piogress of 
 the voyage, he shall be liable to imprisonment for any 
 period not exceeding twelve weeks, with or without hai"d 
 labour : 
 
 (8) For wilfully damaging the ship or embezzling or wilfully 
 
 damaging any of her stores or cargo, he shall be liable 
 to forfeit out of his wages a sum equal in amount to the 
 loss thereby sustained, and also, at the discretion of the 
 Court, to imprisonment for any period not exceeding 
 twelve weeks, with or without hard labour : 
 (0) For any act of smuggling of which he is convicted, and 
 whereby loss or damage is occasioned to the Master or 
 Owner, he shall be liable to pay to such Master or 
 Owner such a sum as is sufficient to reimburse the 
 ]\Iaster or Owner for such loss or damage ; and the 
 whole or a proportionate part of his wages may be re- 
 tained in satisfaction or on account of such liability, 
 without prejudice to any further remedy. 
 
 Would it not be more practical to substitute for any 
 one under the age of sixteen the j^unislnnent of whipping 
 in lieu of imprisonment? Tlie 24 & 25 Yict. cap. 97, gives 
 the jjDWcr lo a(hl. ibr males under sixteen years, the punisli- 
 ment of wliip[)iiig; why not substitute it here, where it is 
 clcni- that a youth is usually led away by others, and 
 would only be brought by imprisonment into the company 
 of bad cliaracters ? ' ^ 
 
 in part 8 of this clause I would omit the words ' wil- 
 fully damaging the ship,' as it a})pears to me this oil'ence 
 
 ' Iiiiiirisoimicnt cannot now Ijo imposed for offences covered by sub-scc- 
 tioHH (Ij und ('2). Sec the Mereliant Seamen (Payment of Wayes) Act, 1880, 
 (, 10.
 
 MEllCIIANT SrilPPING ACT, 1854. 541 
 
 is more efficiently treated in the 24 &, 25 Vict. cap. 97, 
 and it might perhaps be useful to refer here to this enact- 
 ment. 
 
 2G0. Any officer in command of any ship of Her Majesty on 
 any foreign station, or, in tlie aljsence of such officer, any Consular 
 officer, may summon a Court, to be termed a ' Naval Court,' in the 
 following cases ; (that is to say), 
 
 (1) Whenever a complaint which appears to such officer to re- 
 
 quire immediate investigation is made to him by the 
 Master of any British ship, or by any certificated Mate, 
 or by one or more of the Seamen belonging to any such 
 ship : 
 
 (2) Whenever the interest of the Owner of any British ship or 
 
 of the cargo of any such ship appears to such officer to 
 require it : 
 
 (3) Whenever any British, ship is wrecked or abandoned or other- 
 
 wise lost at or near the place where such officer may be, 
 or whenever the Crew or part of the Crew of any British 
 ship which has been wrecked, abandoned, or lost abroad, 
 arrives at such place. 
 
 2. I would suggest to insert the following words, ' or 
 their respective underwriters,' before ' appears,' &c. 
 
 261. Every such Naval Court as aforesaid shall consist of not 
 more than five, and not less than three members, of whom if 
 possible, one shall be an officer in the Naval Service of Her Majesty 
 not below the rank of lieutenant, one a Consular officer, and one 
 a Master of a British Merchant ship, and the rest shall be either 
 officers in the Naval Service of her Majesty, Masters of British 
 Merchant ships, or British Merchants ; and such Court may include 
 the Naval or Consular officer summoning the same, but shall not 
 include the Master or Consignee of the ship to which the parties 
 complaining or complained against may belong; and the Naval 
 or Consular officer in such Court, if there is only one such officer in 
 the Court, or. if there is more than one, the Naval or Consular
 
 o42 MARITIME LEGISLATION. 
 
 officer who, accarding to any regalatious forsattling their respective 
 ranks for the time being in force, is of the highest rank, shall be 
 the president of such Court. 
 
 In the interest of public policy, I think it advisable to 
 order that if the party at whose request the Naval Court 
 is summoned, or who gave such information that its being 
 sunnnoned was decided upon, should not be personally 
 competent to take the position of prosecutor and its 
 adherent functions before such Naval Court, that the officer 
 summoning such Naval Court should appoint any one 
 person of sufficient knowledge to act in such capacity of 
 prosecutor before such Naval Court. 
 
 280. The Board of Tirade shall sanction forms of official log- 
 books, which may be different for diiferent classes of ships, so 
 that each such form contains blanks for the entries hereinafter 
 required ; and an official log of every sliip (except ships employed 
 exclusively in trading between ports on the coasts of the United 
 Kingdom) shall be kept in the appropriate sanctioned form ; and 
 such official log may, at the discretion of the Master or Owner, 
 either be kept distinct from the ordinary ship's log or united there- 
 with so that in all cases all the blaidss in the official log be duly 
 filled up. 
 
 I think it is a dangerous proceeding to allow more 
 than one log recogni>cd by law on board of any vessel. 
 'I'lie most efficient manner to deal with the matter would 
 be to follow the course adopted by most of the principal 
 ( Continental Governments, wdiere the ship's log is only legal 
 if it is kept in a book nunil)ered and sealed officially, and 
 in a Ibim picscribcd ])y law, and which might at the ter- 
 miiiMlion of the voyage be acted upon as now j)rescribed 
 tor tlif (.llici;il log.^ 
 
 ' Vide page nn.').
 
 MERCHANT SHIPPING ACT, 1854. 543 
 
 28 1. The following offences in respsct of official log-books sliall 
 bo punishable as hereinafter mentioned ; (that is to say), 
 
 (I) If in any case an official log-book is not kept in the manner 
 hereby required, or if any entry hereby directed to be 
 made in any such log-book is not made at the time and in 
 the manner hereby directed, the master shall for each 
 such offence incur the specific penalty heroin mentioned 
 in respect thereof, or where there is no such specific 
 penalty, a penalty not exceeding five pounds. 
 
 (■J) Every person who makes, or procures to be made, or assists 
 in making, any entry in any official log-ljook in respect 
 of any occurrence happening previously to the arrival of 
 the ship at her final port of discharge more than twenty- 
 four hours after such arrival, shall for each such offence 
 incur a penalty not exceeding thirty pounds : 
 
 (3) Every person who wilfully destroys or mutilates or renders 
 illegible any entry in any official log-book, or who wil- 
 fully makes, or procures to be made, or assists in making 
 any false or fraudulent entry or omission in any such 
 log-book, shall for each such offence be deemed guilty of 
 a misdemeanour. 
 
 As the concocting of averages and the conseqnent 
 frauds upon owners and underwriters are only possible l)y 
 keeping double logs, or by making subsequent entries in 
 the official logs, and as these frauds have lately augmented 
 in a fearful degree, it is absolutely necessary to increase 
 the punishments for such offences in a suitable manner, 
 and it ought to be enacted — 
 
 (2) That the offences here designated shall be punished 
 
 as misdemeanours, and 
 
 (3) That the offences here designated shall be punished 
 
 as felonies. 
 But I would most earnestly recommend that Uie oppor- 
 tunity should be taken to make sucli enactments thai the
 
 544 MAHTTDIE LEGISLATION. 
 
 loose and inefficient manner of extending ship's protests 
 would be put a stop to. 
 
 Every ship's protest ought to be drawn up in such a 
 manner that it is apparent on the face of the document 
 which part is the real coj^y or extract of the official log, 
 and which are the additions afterwards thought of; for, 
 as sailors will sign and swear to almost anything that is 
 laid before them, and as in my own experience ship's pro- 
 tests have been issued and executed in the most formal 
 manner, but containing facts entirely false, it is evident 
 that the general public engaged in mercantile adventures, 
 and entirely dependent on the truth of such documents, 
 have a right to expect that all regulations in respect there- 
 to shall be framed so carefully as to render such irregu- 
 larities next to impossible. 
 
 Part IV. — Safety and Trevention of Accidents. 
 
 292. The following rules shall be observed with respect to boats 
 and life-buoys ; (that is to say), 
 
 (1) No decked ship (except ships used solely as steam-tugs 
 
 and ships engaged in the whale fishery) shall proceed 
 to sea from any place in the United Kingdom unless 
 she is provided, according to her tonnage, with boats 
 duly supplied with all requisites for use, and not being 
 fewer in number nor less in their cubic contents than 
 the boats, the number and cubic contents of which are 
 specified in the Table marked S in the schedule hereto 
 for the class to which such ship belongs : 
 
 (2) No ship carrying more than ten passengers shall proceed 
 
 to sea from any place in the United Kingdom, unless, 
 in addition to the boats hereinbefore required, she is 
 also provided with a lifeboat furnished with all requi- 
 sites for use, or unless one of her boats hereinbefore 
 required is rendered buoyjint after tlie manner of a 
 lifeboat:
 
 MERCHANT SHIPPING ACT, 18.",4. 545 
 
 (3) No sucli ship as last aforesaid shall proceed to sea unlerss 
 slie is also provided with two life-buoys : 
 And such boat and lif(vbuoys shall be kept so as to be at all times 
 fit and ready for use : provided, that the enactments with respect 
 to boats and life-buoys herein contained shall not apply in any case 
 in which a certificate has been duly obtained under the tenth sec- 
 tion of the Passengers' Act, 1852. 
 
 293. In any of the following cases (that is to say), 
 
 (1) If any ship hereinbefore required to be provided with 
 
 boats and life-buoys proceeds to sea without being so 
 provided therewith, or if any of such boats or life-buoys 
 are lost or rendered unfit for service, in the course of 
 the voyage, through the wilful fault or negligence of 
 the Owner or Master ; or, 
 
 (2) If, in case of any such boats or life-buoys being accident- 
 
 ally lost or injured in the course of the voyage, the 
 Master wilfully neglects to replace or repair the same 
 on the first opportunity ; or, 
 
 (3) If such boats and life-buoys are not kept so as to be at all 
 
 times fit and ready for use ; 
 Then if the Owner appears to be in fault he shall incur a penalty 
 not exceeding one hundred pounds, and if the Master appears to 
 be in fault he shall incur a penalty not exceeding fifty pounds. 
 
 294. No officer of customs shall grant a clearance or transire 
 for any ship hereinbefore required to be provided with boats or 
 with life-buoys unless the same is duly so provided ; and if any 
 such ship attempts to go to sea without such clearance or transire, 
 any such officer may detain her until she is so provided. 
 
 The subject of boats and life-buoys has been so care- 
 fully treated at the Society of Arts that I refrain from 
 any observations on the matter in question. 
 
 303. For the purpose of the enactments herein contained with 
 respect to the surveys and certificates of passenger steamsliips, the 
 word ' passengers ' shall be held to include any persons carried in 
 a steam ship, other than the Master and Crew, and the Owner, his 
 
 N N
 
 5J6 MARITIME LEGISLATION, 
 
 family and servants ; and the expression ' passenger steamer' sliall 
 l)e lield to include every British steamship carrying passengers to, 
 from, or between any place or places in the United Kingdom, ex- 
 ceptino- steam ferry boats working in chains, commonly calle<I 
 steam bridges. 
 
 It appears to me that tlie expression ' passenger 
 steamers ' ought to be applied only to those wliieli cai-iy 
 passengers for a monetary consideration. 
 
 Quite recently a decision has been given l)y the Judge 
 of the High Court of Admiralty (the ' Ilanna ') which 
 strongly demonstrates the necessity of more careful 
 wording of the clause. In this case Dr. Lushington held 
 that a person clearly not belonging to the crew, who was 
 on board for the voyage as a friend of the master, was a 
 ' nondescript, certainly not a passenger ! ' In my case of 
 the 'Beta,' so fully referred to in my remarks on the 
 ([uestion of compulsory pilotage, two persons taken over 
 to Ireland out of charity and paying no fares were held to 
 l)e passengers. 
 
 IIow far Dr. Lushington was justified in adding to the 
 clear words of this clause the new exemption of nonde- 
 scripts maybe left for olhers to decide ; I nuist, however, 
 point out and carneslly urge u})on the 15oard of Trade the 
 necessity of so IVaniing and amending the enactments bv 
 whi<-h the connncrce of ihis great country is governed, 
 ihat il shall no longer be possible lor mere subtleties of 
 reasonin<f to make a difference of many thousands of ponnds 
 lo perfectly iimocent persons, such being the result of ihe 
 colli i-adiclory d(;cisions above ([noted. 
 
 '.',]'.). Jf the Owner or Master or other person in charge of any 
 passoivjer steamer receives on boai'd i hereof, or on or in any ])art 
 tliercof or if sucli ship has on boai'd lliricol, oi- on or in any ])art 
 thereof, anv nunilier of passengers, which. haAiiig regard to ihe
 
 MElICtlANT SIIIPl'ING ACT, 1854. 547 
 
 time, occasion, and circumstance of the case, is greater than the 
 number of passengers allowed by the cartificate, the Owner or 
 Master shall incur a penalty not exceeding twenty pounds, and 
 also an additional penalty not exceeding five shillings for every 
 passenger over and above the number allowed by the certificate, 
 or, if the fare of any of the passengers on board exceeds five 
 shillings, not exceeding double the amount of the fares of all the 
 passengers who are over and above the number so allowed as afore- 
 said, such fare to be estimated af the highest rate of fare payable 
 by any passenger on board. 
 
 Some means should be adopted for iiisiiriiiL;- prompter 
 and more certain puiiishmeiit for offences against this 
 clause ; for instance, it is generally understood tliat: on 
 Whit Monday 1867 the 'Alexandra' river steamer left 
 London Bridge with more than 2,000 persons on board, 
 her statutory number being little in excess of ] ,000, and 
 she was, in fact, so dangerously overcrowded, that 200 to 
 300 left her at Blackwall ; any accident happening to a 
 steamer in such a state would be attended with such 
 frightful conse(]^uences that no mercy should be shown to 
 deliberate offenders. 
 
 326. Whenever any steam ship has sustained or caused any 
 accident occasioning loss of life or any serious injury to any person, 
 or has received any material damage affecting her seaworthiness or 
 her efficiency either in her hull or in any part of her machinery, 
 the Owner or ^Master shall, within twenty-four hours after the 
 happening of such accident or damage, or as soon thereafter as 
 possible, send to the Board of Trade, by letter signed bv such 
 Owner or i\Iaster, a report of such accident or damage, and of the 
 probable occasion thereof, stating the name of tlu' ship, tlu^ port 
 to -which she belongs, and the place where she is ; and if such 
 Owner or Master neglect so to do he shall for such offence incur a 
 penalty not exceeding fifty pounds. 
 
 o27. If the Owner of any steaiu ship have reason, owinf- to
 
 548 MARITIME LEGISLATION. 
 
 the non-appearance of sucli ship, or to any other circumstance, to 
 apprehend that such ship has been wholly lost, he shall, as soon as 
 conveniently may be, send notice thereof in like manner to the 
 Board of Trade, and if he neglect so to do within a reasonable time 
 he shall for such offence incur a penalty not exceeding fifty 
 pounds.' 
 
 328. In every case of collision, in which it is practicable so to 
 do, the Master shall, immediately after the occurrence, cause a 
 statement thereof, and of the circumstances under which the same 
 occurred, to be entered in the official log-book (if any), such entry 
 to be signed by the Master, and also by the Mate or one of the 
 Crew, and in defoult shall incur a penalty not exceeding twenty 
 pounds. 
 
 I think these clauses can be omitted, as the deposition 
 which the master is bound to make before the Eeceiver 
 of Wreck, cop}^ of which is by this officer transmitted to 
 the Board of Trade, is sufficient for the object the Board 
 has apparently in view with respect to the report. 
 
 Part V. — Tlhiage. 
 
 330. The Fifth Part of this Act shall apply to the United 
 Kingdom only. 
 
 331. Every pilotage authority shall retain all powers and 
 jurisdiction which it now lawfully possesses, so far as the same 
 are consistent with the provisions of this Act ; but no law relating 
 to such authority, or to the Pilots licensed b}^ it, and no act done 
 by such authority, shall, if inconsistent with any provision of this 
 Act, be of any force whatever. 
 
 332. Every pilotage authority shall have power, by bye-law 
 made with the consent of Her JMajesty in Council, to exempt the 
 Masters of any ships, or of any classes of ships, from being com- 
 pelled to employ qualified ]?ilots, and tn annex any terms or 
 conditions to such exemptions, and to revise and extend any 
 exemptions now existing by virtue of this Act or any other Act of 
 
 ' Sli^'hllv nincndo.l by JiC) .t ;S7 Vicl. e. Kf).
 
 MERCHANT SHIPPING ACT, 1854. 549 
 
 Parliiunciit, law, or charter, or by usage, upon such terms aud 
 conditions and in such manner as may appear desirable to such 
 authority. 
 
 333. Subject to the provisions contained in the Fifth Part of 
 tliis Act, it sliall be lawful for every pilotage authority, by bye-law 
 made with the consent of Her ]\Iajesty in Council, from time to 
 time to do all or any of the following things within its districts ; 
 (that is to say), 
 
 (1) To determine the qualifications to be required from per- 
 sons applying to be licensed as I'ilots, whether in respect 
 of their age, skill, time of service, character, or other- 
 wise : 
 {'2) To make regulations as to the approval aud licensing of 
 Pilot boats and ships, with power to establish and regu- 
 late companies for the support of such boats aud ships, 
 and for a participation in the profits made thereby ; the 
 companies so established to be exempt from the pro- 
 visions of the Act passed in the session holden in the 
 seventh and eighth years of the reign of Her present 
 Majesty, chapter one hundred and ten, intituled ' An 
 Act for the Registration, Incorporation, and Regulation 
 of Joint Stock Companies ' : 
 
 (3) To make regulations for the government of the Pilots 
 
 licensed by them, and for insuring their good conduct, 
 and their constant attendance to and effectual perform- 
 ance of their duty, either at sea or on shore : 
 
 (4) To fix the terms and conditions of granting licenses to 
 
 Pilots and Apprentices, and of grantiug such pilotage 
 certificates as hereinafter mentioned to Masters and 
 Mates, and to make regulations for punishing any 
 breach of such regulations as aforesaid committed by 
 such Pilots or Apprentices, or by such Masters and 
 JNIates, by the withdrawal or suspension of their licenses 
 or certificates, as the case may be, or by the infliction 
 of penalties to be recoverable summarily before two 
 justices, so that no such penalty be made to exceed the 
 sum of twenty pouuds, and so that every such penalty
 
 :i/50 MARITIME LEGISLATION. 
 
 be capable of reduction at tlie discretion of the justices 
 bv whom the same is inflicted : 
 
 (5) To fix the rates and prices or other remuneration to be 
 demanded and received for the time being by Pilots 
 licensed by such authority, or to alter the mode of 
 remunerating such Pilots, in such manner as such 
 authority may, with such consent as aforesaid, think fit, 
 so that no higher rates or prices be demanded or re- 
 ceived from the Masters or Owners of ships in the case 
 of the Trinity House than the rates and prices specified 
 in the Table marked U in the Schedule hereto ; and in 
 the case of all other pilotage authorities, than the rates 
 and prices which might have been lawfully fixed or 
 demanded by such pilotage authorities respectively 
 under any Act of Parliament, charter, or custom in 
 force immediately before the commencement of this 
 Act: 
 
 (Cy) To make such arrangements with any other pilotage 
 authority for altering the limits of their respective dis- 
 tricts, and for extending the powers of such other 
 authority, or the privileges of the Pilots licensed by 
 such other authority or any of them, to all or any part 
 of its own district, or for limiting its own powers or 
 the privileges of its own Pilots or any of them, or for 
 sharing the said last-mentioned powers and privileges 
 with the said other authority and the Pilots licensed by 
 it, or for delegating or surrendering such powers and 
 privileges or any of them to any other pilotage au- 
 thority either already constituted or to be constituted 
 by agreement between such authorities, and to the 
 Pilots licensed by it, as may appear to such pilotage 
 authorities to bo desirable for the purpose of facilitating 
 navigation or of reducing charges on shipping : 
 (7j To establish, either alone or in conjunction with any other 
 pilotage authority or authoi-itics, funds for the roli(>f of 
 superannuated or innrin (jualified Pilots, or of their 
 wives, widows, rir chikli-cn.or in nuikc any new regulalitms
 
 MKRCIIANT Sllll'l'lXd ACT, 18f;4. r,51 
 
 with respect to any funds ulrcady applicable tu the above 
 jiurposes or any of them, with power to determine the 
 auunint, niamu-r, tiiiu-, and persons (sueli persons lo 
 be in the service of such pilotage authority) to and in 
 w hich and by and upon whom the contributions in sup- 
 ]wrt of such existing or future funds may be made or 
 levied ; and further, to declare the persons or class of 
 persons (such persons or class of person being confined 
 to men in the service of such pilotage authority, their 
 wives, widows, or children) entitled to participate in the 
 benefits of such existing or future funds, and the terms 
 and conditions upon wliicli they aif to be so entitled: 
 (8) To repeal or alter any bye-hiw made in exercise of the 
 above powers, and to make a new bye-law or new bye- 
 laws in lieu thereof: ' 
 And every bye-law duly made by any pilotage authority in exercise 
 of the powers hereby given to it shall be valid and effectual, not- 
 withstanding any Act of Parliament, rule, law, or custom to the 
 contrary. 
 
 334. Every bye-law proposed to be enacted by any pilotage 
 authority in pursuance of the foregoing powers shall, before it is 
 submitted to Her Majesty in Council for her assent, be published 
 in such manner as may from time to time be prescribed by the 
 Board of Trade. 
 
 335. Every Order in Council made in pursuance of the pro- 
 visions hereinbefore contained shall be laid before both Houses of 
 Parliament as soon as possible after the making thereof. 
 
 336. If the greater part in number of the qualified Pilots 
 belonging to any port, or the Local Marine Board, whtre there is 
 one, or at any port where there is no Local jMarine Board ; if any 
 Masters, Owners, or insurers of ships, being not less than six in 
 number, consider themselves aggrieved by any regulation or bye-law 
 in force when this Act comes into operation, or hereafter made 
 under some authority other than the provisions of this Act, or by 
 any defect or omission therein, they may appeal to the Board of 
 'J'rade, and the said Board may thereupon revoke or alter any such 
 
 ' To grant special sea licenses (35 it 3G Vict. c. 73, § 11).
 
 552 MARITIME LEGISLATION. 
 
 regulation or bye-law, or may make additions thereto in such 
 manner as, having regard to the interests of the persons concerned, 
 may appear to be just and expedient ; and every order so made 
 shall be conclusive in the matter. 
 
 337. Every pilotage authority shall deliver periodically to the 
 Board of Trade, in such form and at such times as such Board re- 
 quires, returns of the following particulars with regard to pilotage 
 within the port or district under the jurisdiction of such authority ; 
 (that is to say), 
 
 (1) All bye-laws, regulations, orders, or ordinances relating to 
 
 Pilots or pilotage for the time being in force : 
 
 (2) The names and ages of all Pilots or Apprentices licensed 
 
 or authorised to act by such authority, and of all Pilots 
 or Apprentices acting either mediately or immediately 
 under such authority, whether so licensed or authorised 
 or not : 
 
 (3) The service for which each Pilot or Apprentice is licensed : 
 
 (4) The rates of pilotage for the time being in force, including 
 
 therein the rates and descriptions of all charges upon 
 shipping made for or in respect of Pilots or pilotage : 
 
 (5) The total amount received for pilotage, distinguishing the 
 
 several amounts received from British ships and from 
 foreign ships respectively, and the several amounts re- 
 ceived in respect of different classes of ships paying 
 different rates of pilotage, according to the scale of such 
 rates for the time being in force, and the several amounts 
 received for the several classes of service rendered by 
 Pilots ; and also the amount paid by such ships (if any) 
 as have before reaching the outer limits of pilotage 
 water if outward bound, or the port of their destination 
 if inward bound, to take or pay for two or more Pilots, 
 whether licensed by the same or by different pilotage 
 authorities ; together with the numbers of the ships of 
 each of the several classes paying such several amounts 
 as aforesaid: 
 (<)j 'j'lie receipt and expenditure of all moneys received by or 
 on behalf of such autliorily, or by or on behalf of an)'
 
 MERCHANT SHIPPING ACT, 1854. 553 
 
 Sub-Commissioners appointed by them, in respect of 
 
 Pilots or pilotage. 
 And shall allow the Board of Trade, or any persons appointed by 
 such Board for the purpose, to inspect any books or documents in 
 its possession relating to the several matters hereinbefore required 
 to be returned to the Board of Trade. 
 
 338. If any of such pilotage authorities as aforesaid (other than 
 the Trinity House, or Sub-Commissioners of Pilotage appointed by 
 it, as hereinafter mentioned) fail to deliver to the Board of Trade 
 the periodical returns hereinbefore required within one year of such 
 time as may be fixed by such Board for the purpose, or if any of 
 such authorities do not allow the said Board, or any persons who 
 may be appointed by it for the purpose, to inspect any books or 
 documents in their possession relating to the matters hereinbefore 
 required to be returned by them, it shall be lawful for Her Majesty, 
 by and with the advice of her Privy Council, to direct that all the 
 rights and powers of such authorities in respect of pilotage shall 
 cease or be suspended during such time as Her Majesty directs ; 
 and thereupon the Trinity House shall thereafter, or during such 
 time as such susj)ension may continue, have and exercise the same 
 powers of appointing Sub-Commissioners of Pilotage, and of licens- 
 ing Pilots, and of establishing and altering rates of pilotage, within 
 the district within which the authority so making default has pre- 
 viously appointed or licensed Pilots, as it is by this Act authorised 
 to exercise in any district for which no particular provision is made 
 by any Act of Parliament or charter for the appointment of Pilots, 
 and shall also during such time as aforesaid have and exercise the 
 same rights, title, and powers to and in respect of any pilotage 
 funds or other pilotage property which the said pilotage authorities 
 would or might have had or exercised if not so suspended as afore- 
 said. 
 
 339. The Board of Trade shall, without delay cause the several 
 returns hereinbefore required to be made to such Board to be laid 
 before both Houses of Parliament. 
 
 340. The Master or Mate of any ship may, upon giving due 
 notice, and consenting to pay the usual expenses, apply to any 
 pilotage authority to be examined as to his capacity to pilot the
 
 r,o4 >[APJTTME LEGISLATION'. 
 
 ship of wliich lie is Master or Mate, or any one or more ships be- 
 longing to the same Owner, within any part of tlie disti-ict over 
 which such pilotage authority has jurisdiction ; and such Master 
 or Mate shall, if such authority thinks fit, thereupon be examined ; 
 and if found competent, a pilotage certificate shall be granted to 
 him, containing his name, a specification of the ship or ships in 
 respect of which he has been examined, and a description of the 
 limits within which he is to pilot the same, such limits to be 
 within such jurisdiction as aforesaid ; and such certificate shall 
 enable the person therein named to pilot the ship or any of the 
 ships therein specified, of which he is acting as ]\Iaster or Mate at 
 the time, but no other, within the limits therein described, w^ithout 
 incurring any penalties for the non-employment of a qualified 
 Pilot. 
 
 341. The pilotage certificate so granted shall not bo in force 
 for more than one year, unless the same is renewed, which may 
 from time to time be done by an indorsement under the hand of 
 the Secretary or other proper ofliicer of the authority by whom 
 such certificate was granted. 
 
 31-2. If upon complaint to the Board of Trade it appear to 
 such Board that any such authority as aforesaid has v/ithout 
 reasonable cause refused or neglected to examine any Master 
 or Mate who has applied to them for the purpose, or after he 
 lias passed the examination has without reasonable cause refused 
 or neglected to grant him a pilotage certificate, or that the ex- 
 amination of any such Master or Mate has been unfairly or 
 improperly conducted, or that any terms imposed or sought to be 
 imposed by such authority are unfair or improper, or that any 
 pilotage certificate granted by such authority has been improperly 
 withdrawn, the Board of Trade may, if in its judgment the 
 circumstances appear to require it, appoint persons to examine 
 such Master or Mate, and if he is found competent may grant him 
 a pilotage certificate, containing the same particulars as would 
 liavc been inserted in any certificate granted by such pilotage 
 authorities as aforesaid, upon such terms and conditions, and 
 f-ubjcct to such regulations, as such Board may think fit; and such 
 ((•i-tificale shall have llie sanic^ cfrect ris if it had Iteen granted by
 
 MERCHANT SIIIITING ACT. 1854. 55r, 
 
 sucli pilotage authority as aforesaid ; and sucli certificate shall be 
 in force for one year, and may be renewed from year to year, 
 either by the said authorities in manner hereinbefore mentioned, 
 or by the Board of 'J'rade, if such Board thinks fit, such renewal 
 to be indorsed on the said certificate, either by such person as the 
 Board of Trade may appoint for the purpose, or in manner herein- 
 before provided as to certificates granted by any pilotage authority. 
 
 343. All ]\Iasters or Mates to or for whom any such pilotage 
 certificates as aforesaid are granted or renewed by any pilotage 
 authority shall pay to such authority, or as it directs, such fees 
 upon their respective certificates and upon the renewals thereof, 
 as are from time to time fixed for that purpose by such authority, 
 with the consent of the Board of Trade ; and all iMasters and 
 Mates to or for whom any such certificates are granted or renewed 
 by the Board of Trade shall pay to such Board, or as it directs, 
 such fees upon their certificates and ujoon the renewals thereof as 
 may be -fixed by such Board, so nevertheless that in the case of 
 pilotage certificates granted or renewed by the Board of Trade such 
 fees shall in no case be less than the fees payable by the qualified 
 Pilots in the same districts upon their licenses and the renewal 
 thereof; and such fees shall in the case of certificates and renewals 
 granted by pilotage authorities be applicable either to paying the 
 expense of the examinations or any other general expenses connected 
 with pilotage incurred by such authorities, or to the Pilots' Super- 
 annuation Fund of the district (if any), or otherwise for the benefit 
 of the Pilots appointed by such authorities, as such authorities 
 think fit ; and such fees shall in the case of pilotage certificates 
 granted or renewed by the Board of Trade be applicable to the 
 expense of the examinations, and the surplus (if any) shall be 
 applied for the benefit of the qualified Pilots of the port or district 
 to which such certificates apply, in such manner as such Board 
 thinks fit. 
 
 344. If at any time it appears to the Board of Trade or to any 
 pilotage authority that any Master or Mate to whom a pilotage 
 certificate has been granted by such Board or authority has been 
 guilty of misconduct, or has shown himself incompetent to pilot 
 his shi]i. such 13oard or such authority (as the case may be) may
 
 556 MARITIME LEGISLATION. 
 
 thereupon withdraw his certificate, and such certificate shall 
 thenceforth cease to be of any effect whatever, 
 
 345. All boats and ships regularly employed in the pilotage 
 service of any district shall be approved and licensed by the 
 pilotage authority of such district, who may, at their discretion, 
 appoint and remove the Masters of such boats and ships. 
 
 346, Every pilot-boat or ship shall be distinguished by the 
 following characteristics ; (that is to say), 
 
 (1) A black colour painted or tarred outside, with the exception 
 
 of such names and numbers as are hereinafter men- 
 tioned ; or such other distinguishing colour or colours 
 as the pilotage authority of the district, with the consent 
 of the Board of Trade, directs : 
 
 (2) On her stern the name of the Owner thereof and the port 
 
 to which she belongs painted in white letters at least 
 one inch broad and three inches long, and on each bow 
 the number of the license of such boat or ship ; 
 
 (3) When afloat, a flag at the masthead or on a sprit or staff, 
 
 or in some other equally conspicuous situation ; such 
 
 flag to be of large dimensions compared with the size 
 
 of the boat or ship carrying the same, and to be of two 
 
 colours, the upper horizontal half white, and the lower 
 
 horizontal half red : 
 
 And it shall be the duty of the Master of such boat or ship to 
 
 attend to the following particulars : First, that the boat or ship 
 
 possesses all the above characteristics ; secondly, that the aforesaid 
 
 flag is kept clean and distinct, so as to be easily discerned at a 
 
 })roper distance ; and, lastly, that the names and numbers before 
 
 iiifiitionrd are not at any time concealed ; and if default is made in 
 
 any of the above particulars he shall incur a penalty not exceeding 
 
 twenty pounds for each default. 
 
 3 17. Whenever any qualified Pilot is carried off in a boat or 
 ship not in the pilotage service he shall exhibit a flag of the above 
 description, in order to show that such boat or ship has a qualified 
 Pilot on board ; and if he fails to do so without reasonable cause he 
 shall incur a penalty not exceeding fifty pounds. 
 
 348, If any boat or ship, not having a licensed Pilot on board,
 
 MERCHANT SHIPPING ACT, 1854. 557 
 
 displays a flag of the above-mentioned description, there shall 
 be incurred for every such offence a penalty not exceeding fifty 
 pounds, to be recovered from the Owner or from the Master of such 
 boat or ship. 
 
 3 A9. Every qualified Pilot on his appointment shall receive a 
 license, containing his name and usual place of abode, together 
 with a description of his person, and a specification of the limits 
 within which he is qualified to act ; and it shall be the duty of the 
 principal officer of Customs at the place at or nearest to which any 
 qualified Pilot may reside, upon his request, to register his license ; 
 and no qualified Pilot shall be entitled to act as such until his 
 license is so registered ; and any qualified Pilot acting beyond the 
 limits for which he is qualified by his license, shall be considered 
 as an unqualified I'ilot. 
 
 350. Every qualified Pilot shall, upon receiving his license, be 
 furnished with a copy of such part of this Act as relates to pilot- 
 age, together with a copy of the rates, bye-laws, and regulations 
 established within the district for which he is licensed ; and he 
 shall produce such copies to the Master of any ship or other person 
 employing him, when required to do so, under a penalty in case of 
 default not exceeding five pounds. 
 
 351. Every qualified Pilot, while acting in that capacity, shall 
 be provided with his license, and produce the same to every person 
 by whom he is employed, or to whom he tenders his services as 
 Pilot ; and if he refuses to do so at the request of such person, he 
 shall incur for each offence a penalty not exceeding ten pounds, 
 and shall be subject to suspension or dismissal by the pilotage 
 authority by whom he is licensed. 
 
 352. Every qualified Pilot, when required by the pilotage 
 authority who appointed him, shall produce or deliver up his 
 license ; and on the death of any qualified Pilot the person into 
 whose hands his license happens to fall shall without delay trans- 
 mit the same to the pilotage authority who appointed the deceased 
 Pilot, and any Pilot or person failing to comply with the provisions 
 of this section shall incur a penalty not exceeding ten pounds. 
 
 353. Subject to any alteration to be made by any pilotage 
 authority in pursuance of the power hereinbefore in that behalf
 
 558 MAllITIME LEOISLATIOX. 
 
 given, the employment of pilots shall continue to bs compulsoiy 
 in all districts in which the same was by law compulsory imme- 
 diately before the time when this Act comes into operation ; and 
 all exemptions from compulsory pilotage then existing within such 
 districts shall also continue in force ; and every Master of any un- 
 exempted ship navigating within any such distjict wlio, after a 
 qualified Pilot has offered to take charge of such ship or has made 
 a sio-nal for that purpose, either himself pilots such ship without 
 possessing a pilotage certificate enabling him so to do, or employs 
 or continues to employ an unqualified person to pilot her, and 
 every Master of any exempted ship navigating within any such 
 district, who, after a qualified Pilot has offered to take charge of 
 such ship, or has made a signal for that purpose, employs or con- 
 tinues to employ an unqualified Pilot to pilot her, shall for every 
 such offence incur a penalty of double the amount of pilotage 
 demandable for the conduct of such ship. 
 
 oo4:. The Master of every ship carrying passengers between 
 anv place situate in the United Kingdom, or the islands of Guern- 
 seif, Jersey, Sarlc, Alderney, and Man, and any other place so situate, 
 when navigating upon any waters situate within the limits of any 
 district for which Pilots are licensed by any pilotage authority 
 under the provisions of this or of any other Act, or upon any part 
 thereof so situate, shall, unless he or his Mate has a pilotage cer- 
 tificate enabling such Master or Mate to pilot the said ship within 
 such district, granted under the provisions hereinbefore contained 
 or such certificate as next hereinafter mentioned, being a certificate 
 applicable to such district and to such ship, employ a qualified 
 l^ilot to pilot his ship ; and if he fails so to do he shall for every 
 offence incur a penalty not exceeding one hundred pounds. 
 
 355. Any Master or Mate of a ship which by the last preceding 
 section is made subject to comjjulsory pilotage may apply to the 
 J3oard of Trade for a certificate, and the Board of Trade shall 
 thereupon, on satisfactory proof of his having continuously piloted 
 any ship within the limits of any pilotage district or of any part 
 or parts thereof for two years prior to the commencement of this 
 Act, or upon satisfactory proof by examination of his conqoetcncy, 
 or otherwise as it may deem expedient, cause to be granted to liini,
 
 MKRCIIANT STIlPflNG ACT, 1851. TwO 
 
 or to be iiulorsed on any certificate of competency or service ob- 
 tained by him under the Third Part of tliis Act, a certificate to 
 the effect that he is authorised to pilot any ship or sliips belonging 
 to the same owner, and of a draft of water not greater than such 
 draft as may be specified in the certificate within the limits afore- 
 said, and the said certificate shall remain in force for such time as 
 thi> !)oard of Trade directs, and shall eiuiblo the Master or Mate 
 therein named to conduct the ship or ships therein specified within 
 the limits therein described to the same extent as if the last pre- 
 ceding section had not been passed, but not further or otherwise ; 
 and every such Master or ^NFate shall, upon applying for such 
 certificate or any renewal thereof, pay to the Board of Trade or as 
 it directs such fees not exceeding the fees payable on an examina- 
 tion for a Mastei-'s certificate of competency under the Third Part 
 of this Act as the Board of Trade directs; and such fees shall be 
 applied in the same manner in which the foes payable on such last- 
 mentioned examination are made applicable. 
 
 356. If any boat or ship, having a qualified Pilot on board, 
 leads any ship which has not a qualified Pilot on board when sucli 
 last-mentioned ship cannot from particular circumstances be boarded, 
 the Pilot so leading such last-mentioned ship shall be entitled to the 
 full pilotage for the distance run as if he had actually been on 
 board and had charge of such ship. 
 
 357. No Pilot, except under circumstances of unavoidable 
 necessity, shall without his consent be taken to sea or beyond 
 the limits for which he is licensed in any ship whatever ; and every 
 l^ilot so taken under circumstances of unavoidable necessity or 
 without his consent shall be entitled, over and above his pilotage, 
 to the sum of ten shillings and sixpence a day, to be computed 
 from and inclusive of the day on which such ship passes the limit 
 to which he was engaged to pilot her up to and inclusive of the 
 day of his being returned in the said ship to the place where he 
 was taken on board, or up to and inclusive of such day as will allow 
 him, if discharged from the ship, sufficient time to return thereto; 
 and in such last-mentioned case he shall be entitled to his reason- 
 able travelling expenses. 
 
 358. Any qualified Pilot demanding or receiving, and also any
 
 560 MARITIME LEGISLATION. 
 
 ^Master offering or paying to any Pilot, any other rate in respect of 
 pilotage services, whether greater or less, than the rate for the tims 
 beino- demandable by law, shall for each offence incur a penalty not 
 exceeding ten pounds. 
 
 359. If any Master, on being requested by any qualified Pilot 
 having the charge of his ship to declare her draught of water, re- 
 fuses to do so, or himself makes or is privy to any other person 
 making a false declaration to such Pilot as to such draught, he 
 shall incur a penalty for every such offence not exceeding double 
 the amount of pilotage which would have been payable to the 
 Pilot making such request ; and if any Master or other person 
 interested in a ship makes or is privy to any other person making 
 any fraudulent alteration in the marks on the stern or stem-post 
 of such ship denoting her draught of water, the offender shall incur 
 a penalty not exceeding five hundred pounds. 
 
 360. A qualified Pilot may supersede an unqualified Pilot, but 
 it shall be lawful for the Master to pay to such unqualified Pilot 
 a proportionate sum for his services, and to deduct the same from 
 the charge of the qualified Pilot ; and in case of dispute the pilotage 
 authority by whom the qualified Pilot is licensed shall determine 
 the proportionate sums to which each party is entitled. 
 
 361. An unqualified Pilot assuming or continuing in the charge 
 of any ship after a qualified Pilot has offered to take charge of her, 
 or using a license which he is not entitled to use for the purpose 
 of making himself appear to be a qualified Pilot, shall for each 
 offence incur a penalty not exceeding fifty pounds. 
 
 362. An unqualified Pilot may, within any pilotage district, 
 without subjecting himself or his employer to any penalty, take 
 charge of a sliip as Pilot under the following circumstances; 
 (that is to say), 
 
 When no qualified Pilot has offered to take charge of such 
 ship, or made a signal for that purpose ; or 
 
 When a ship is in distress or under circumstances making it 
 necessary for the Master to avail himself of the best assistance 
 which can be found at the time ; or 
 
 For the purpose of changing the moorings of any ship in port, 
 or of tuklng Iht inio or out of any dock, in cases where such act
 
 MEKCILVNT SIIIPPIXG ACT, I8-4. ,^Gl 
 
 can be done by an unqualified Pilot without infringing the regula- 
 tions of the port, or any orders which the harbour-master is legally 
 empowered to give. 
 
 3G3. The following persons shall be liable to pay pilotage dues 
 for any ship for which the services of a qualified Pilot are obtained ; 
 (that is to say), the Owner or Master, or such consignees or agents 
 thereof as have paid or made themselves liable to pay any other 
 charge on account of such ship in the port of her arrival or dis- 
 charge, as to pilotage inwards, and in the port from which she 
 clears out as to pilotage outwards : and in default of payment such 
 pilotage dues may be recovered in the same manner as penalties of 
 the like amount may be recovered by virtue of this Act ; but such 
 recovery shall not take place until a previous demand thereof has 
 been made in writing, and the dues so demanded have remained 
 unpaid for seven days after the time of such demand being made. 
 
 364.'. Every consignee and agent (not being the Owner or 
 Master) hereby made liable for the payment of pilotage dues in 
 respect of any ship may, out of any moneys in his hands received 
 on account of such ship or belonging to the Owner thereof, retain 
 the amount of all dues so paid by him together with any reasonable 
 expenses he may have incurred by reason of such payment or 
 liability. 
 
 365. If any qualified Pilot commits any of the following 
 offences ; (that is to say), 
 
 (1) Keeps himself, or is interested in keeping by any agent, 
 
 servant, or other person, any public-house or place of 
 public entertainment, or sells, or is interested in selling, 
 any wune, spirituous liquors, tobacco, or tea ; 
 
 (2) Commits any fraud or other offence against the revenues 
 
 of Customs or Excise, or the laws relating thereto ; 
 
 (3) Is in any way, directly or indirectly, concerned in any 
 
 corrupt practices relating to ships, their tackle, 
 furniture, cargoes, crews, or passengers, or to persons 
 in distress at sea or by shipwreck, or to their moneys, 
 goods, or chattels ; 
 
 (4) Lends his license ; 
 
 (5) Acts as Pilot whilst suspended ; 
 

 
 5G2 MARITIME LEGISLATION. 
 
 (6) Acts as Pilot when in a state of intoxication ; 
 
 (7) Employs, or causes to be employed, on board any sliip of 
 
 which he has the charge, any boat, anchor, cable, or 
 other store, matter, or thing beyond what is necessary 
 for the service of such ship, with the intent to enhance 
 the expenses of pilotage for his own gain or for the 
 gain of any other person ; 
 
 (8) Refuses, or wilfully delays, when not prevented by illness 
 
 or other reasonable cause, to take charge of any ship 
 within the limits of his license upon the signal for a 
 Pilot being made by such ship, or upon being required 
 to do so by the JMaster, Owner, Agent, or Consignee 
 thereof, or by any officer of the pilotage authorities by 
 whom such Pilot is licensed, or by any principal officer 
 of Customs ; 
 
 (9) Unnecessarily cuts or slips, or causes to be cut or slipped, 
 
 any cable belonging to any ship ; 
 
 (10) Refuses, on the request of the Master, to conduct the ship 
 
 of which he has the charge into any port or place into 
 which he is qualified to conduct the same, except on 
 reasonable gi'ound of danger to the ship ; 
 
 (11) Quits the ship of which he has the charge, without the 
 
 consent of the Master, before the service for which he 
 was hired has been performed ; 
 
 He shall for each such offence, in addition to any liability for 
 damages at the suit of the person aggrieved, incur a penalty not 
 exceedino- one hundred pounds, and be liable to suspension or 
 dismissal by the pilotage authority by whom he is licensed ; and 
 every person who procures, abets, or connives at the commission 
 of any such offence shall likewise, in addition to any such liability 
 for damages as aforesaid, incur a penalty not exceeding one 
 hundred pounds, and, if a qualified Pilot, shall be liable to sus- 
 pension or dismissal by the pilotage authority by whom he is 
 licensed. 
 
 36G. If any Pilot, when in charge of any ship, ])y wilful breach 
 of duty, or by neglect of duty, or by reason of drunkenness, does 
 any act touding to the immediate loss, destruction, or serious
 
 MERCHANT SIIirriNG ACT, 1854. £03 
 
 damage of such ship, or tending immediately to endanger the life 
 or limb of any person on board such ship ; or if any Pilot, by 
 wilful breach of duty, or b}^ neglect of duty, or by reason of 
 drunkenness, refuses or omits to do any lawful act proper and 
 requisite to be done by him for preserving such ship from loss, 
 destruction, or serious damage, or for preserving any person be- 
 longing to or on board of such ship from danger to life or lind? ; 
 the Pilot so offending shall, for each such offence, be deemed guilty 
 of a misdemeanour, and, if a qualified Pilot, also be liable to sus- 
 pension and dismissal by the authority by which he is licensed. 
 
 oG7. If any person, by wilful misrepresentation of circum- 
 stances upon which tlie safety of a ship may depend, obtains or 
 endeavours to obtain the charge of such ship, such person, and 
 every other person procuring, abetting, or conniving at the com- 
 mission of such offence, shall, in addition to any liability for 
 damages at the suit of the party aggrieved, incur a penalty not 
 exceeding one hundred pounds, and, if the offender is a qualified 
 Pilot he shall also be liable to suspension or dismissal by the 
 pilotage authority by which he is licensed. 
 
 368. The Trinitij House may, in exercise of the general power 
 hereinbefore given to all pilotage authorities of doing certain things 
 in relation to pilotage matters, alter such of the provisions herein- 
 after contained as are expressed to be subject to alteration by them 
 in the same manner, and to the same extent, as they might have 
 altered the same if such provisions had been contained in any 
 previous Act of Parliament instead of in this Act. 
 
 369. The Trinitij House shall continue to appoint Sub- 
 Commissioners, not being more than five nor less than three 
 in number, for the purpose of examining Pilots in all districts 
 in which they have been used to make such appointments, and 
 may, with the consent of Her Majesty in Council, but not other- 
 wise, appoint like Sub-Commissioners for any other district in 
 which no particular provision is made by any Act of Parliament 
 or charter for the appointment of Pilots ; but no pilotage district 
 already under the authority of any Sub-Commissioners appointed 
 by the Tn'nitii House shall be extended, except with such consent 
 as aforesaid, nnd no Sub-Commissioners so .-ippoiuted shall be 
 
 () o 2
 
 564 MARITIME LEGISLATION. 
 
 deemed to be pilotage authorities within the meaning of this 
 
 Act. 
 
 370. The Triniti/ Home shall continue, after due examination 
 hv themselves or their Sub-Commissioners, to appoint and license 
 under their common seal Pilots for the purpose of conducting ships 
 within the limits following, or any portion of such limits ; (that is 
 to say), 
 
 (1) ' The London District,' comprising the waters of the Thame!? 
 
 and Medically as high as London Bridge and Rochester 
 Bridge respectively, and also the seas and channels 
 leading thereto, or therefrom as far as Orfordness to the 
 north, and Dungeness to the south ; so nevertheless that 
 no Pilot shall be hereafter licensed to conduct ships 
 both above and below Gravesend : 
 
 (2) ' The English Channel District,' comprising the seas be- 
 
 tween Dungeness and the Isle of Wight : 
 
 (0) ' Trinity House Outport District,' comprising any pilotage 
 
 district for the appointment of Pilots within which no 
 particular provision is made by any Act of Parliament 
 or charter. 
 
 371. Subject to any alteration to be made by the Trinity House, 
 the names of all Pilots licensed by the Trinity House shall be pub- 
 lished in manner following; (that is to say), 
 
 (1) The Trinity House shall, at their house in London, fix up a 
 
 notice specifying the name and usual place of abode of 
 every Pilot so licensed, and the limits within which he 
 is licensed to act : 
 
 (2) Tlie Trinity House shall transmit a copy of such notice to 
 
 the Commissioners of Customs in London, and to the 
 principal officers of Customs resident at all ports within 
 the limits for which such Pilot is licensed ; and such 
 notice shall be posted up by the Commissioners at the 
 Custom-house in Tjondon, and by such officers at the 
 Custom-houses of the ports at which they are respec- 
 tively resident. 
 
 372. Subject to any alteration to be made by the Trinity House, 
 every Trinilif Jfonse I'ilot, on his ii]ipoiiitincnt, shall execute a bond
 
 MERCHANT SHIPPING ACT, 1854. 5Go 
 
 for one hundred pounds conditioned for the due observance on his 
 part of the regulations and bye-laws of the Trinitij House, such 
 bond to be free from stamp duty, and from any other charge, 
 except the actual expense for preparing the same. 
 
 373. No qualified Pilot who has executed such bond as is 
 hereinbefore mentioned shall be liable for neglect or want of skill 
 beyond its penalty and the amount of pilotage payable to him in 
 respect of the voyage on which he is engaged. 
 
 374. Subject to any alteration to be made by the Trinitij House, 
 no license granted by them shall continue in force beyond the 
 thirty-first day of January next ensuing the date of such licL'Use ; 
 but the same may, upon the application of the Pilot holding such 
 license, be renewed on such thirty-first day of January in every 
 year, or any subsequent day, by indorsement under the hand of the 
 Secretary of the Trinity House, or such other person as may be 
 appointed by them for that purpose. 
 
 375. The Trinity House shall have power to revoke or suspend 
 the license of any Pilot appointed by them, in such manner and at 
 such time as they think fit. 
 
 376. Subject to any alteration to be made by the Trinity House, 
 and to the exemptions hereinafter contained, the Pilotage Districts 
 of the Trinity House within which the employment of Pilots is 
 compulsory are the London District, and the Trinity House Outport 
 Districts, as hereinbefore defined ; and the Master of every ship 
 navigating within any part of such district or districts, who, after 
 a qualified Pilot has ofi'ered to take charge of such ship, or has 
 made a signal for that purpose, either himself pilots such ship, 
 without possessing a certificate enabling him so to do, or employs, 
 or continues to employ, an unqualified person to pilot her, shall for 
 every such ofience, in addition to the penalty hereinbefore specified, 
 if the Trinity House certify in writing under their common seal 
 that the prosecutor is to be at liberty to proceed for the recovery 
 of such additional penalty, incur an additional penalty not exceeding 
 five pounds for every fifty tons burthen of such ship. 
 
 377. Subject to any alteration to be made by the Trinity House, 
 a sufiicient number of qualified Pilots shall al\v;i\s lie ready to take 
 charge of ships coming from the westward past I)un(jcness ; and
 
 6150 MARITIME LEGISLATION. 
 
 the Trinifi/ House shall, by Lye-law to be made in the same manner 
 as other bye-laws made under the powers herein contained, make 
 such regulations with respect to the Pilots under their control as 
 mav be necessary in order to provide for an unintennitted supply 
 of qualified Pilots for such ships, and to insure their constant 
 attendance upon and due performance of their duty, both by night 
 and day, whether by cruising between the South Foreland and 
 Dunr/eness, or by going off from shore, upon signals made for the 
 purpose, or by both of such means, or by any other means, and 
 whether in rotation or otherwise, as the Trinitif House think fit, 
 
 378. Subject to any alteration to be made by the Trinltij 
 House, every Master of any ship coming from the westward, and 
 bound to any place in the rivers Tliamos and Medvaij (unless she 
 has a qualified Pilot on board, or is exempted from compulsory 
 pilotage), shall, on the arrival of such ship off Dungeness, and 
 thenceforth until she Las passed the south buoy of the Brcike, or a 
 line to be drawn from Sandou-n Castle to the said buoy, or until a 
 qualified Pilot has come on board, display and keep flying the usual 
 signal for a Pilot ; and if any qualified Pilot is within hail, or is 
 approaching and within half a mile, and has the proper distin- 
 guishing flag flyijig in his boat, such Master shall, by heaving-to 
 in proper time or shortening sail, or by any practicable means 
 consistent with the safety of his ship, facilitate such Pilot getting 
 on board, and shall give the charge of piloting his ship to such 
 Pilot ; or if there are two or more of such Pilots offering at the same 
 time, to such one of them as may, according to the regulations for 
 the time being in force, be entitled or required to take such charge ; 
 and if any such Master fails to display or keep flying the usual 
 signal for a Pilot in manner hereinbefore required, or to facilitate 
 any such (junlificd Pilot as aforesaid getting on board as herein- 
 before required, or to give the charge of piloting his ship to such 
 Pilot as hereinbefore mentioned in that behalf, he shall incur a 
 penalty not exceeding double the sum which might have been de- 
 manded Ini- ihc pildiiigo of his shi]), such ])enalty to be paid to the 
 Triii'dij llniisr^iiiul lo be i.;irri(,'il to \l\v aeecuiut ot'tlie Triiiiiij Ilnnse 
 Pilot Fun<l. 
 
 U7y. 'I'lic following ships, wlicu not currying passengers, shall
 
 MERCHANT SIIirriNG ACT, 1854. 507 
 
 be exempted from compulsory pilotage in the London District, and 
 in the Trinitij House Outport Districts ; (that is to say), 
 
 (1) Ships employed in the coasting trade of the United 
 
 Kingdom : 
 
 (2) Ships of not more than sixty tons burthen : 
 
 (o) Sliips trading to Boulogne^ or to any place in Europe north 
 
 of Boulogne : 
 (J) Ships from Guernseij^ Jt-rscij, yildernei/, Sari-, or ]\fan, 
 
 which are wholly laden with stone being the produce 
 
 of those islands : 
 (5) Ships navigating within tlie limits of the port to which 
 
 they belong : 
 (G) Ships passing through the limits of any pilotage district 
 
 on their voyages between two places both situate out 
 
 of such limits, and not being bound to any place within 
 
 such limits nor anchoring therein.^ 
 
 380. Subject to any alteration to be made by the Trinity House 
 there shall continue to be paid to all Trinitij House Pilots, in 
 respect of their pilotage services, such dues as are immediately 
 before the time when this Act comes into operation payable to 
 them in respect of such services. 
 
 381. Subject to any alteration to be made by the Trinitij Ho use ^ 
 and notwithstanding anything hereinbefore contained, there shall 
 be paid in respect of all foreign ships trading to and from the port 
 of London, and not exempted from pilotage, the following pilotage 
 dues ; that is to say, as to ships inwards, the full amount of dues 
 for the distance piloted, and as to ships outwards the full amount 
 of dues for the distance required by law ; and payment of such 
 pilotage dues shall be made to the Collector of Customs in the port 
 of London by some one or more of the following persons ; that is 
 to say, the Master or other person having the charge of such ship, 
 or the Consignee or Agents thereof who have paid or made them- 
 selves liable to pay any other charge for such ship in the said port 
 of London ; and such pilotage may be recovered in the same 
 
 ' Now Brest. See Order in Council, December 21, 1871. 
 ^ Extended by 25 & 26 Vict. c. 6o, § 41.
 
 0(58 M.IRITIME LEGISLATION, 
 
 manner as other pilotage dues are hereinbefore declared to be 
 recoverable. 
 
 382. Subject to any alteration to be made by the Trinitij House, 
 the said Collector of Customs shall, on receiving any pilotage dues 
 in respect of foreign ships, give to the person paying the same a 
 receipt in writing ; and no officer of Customs in the port of 
 London shall grant a clearance or transire for any such foreign ship 
 as aforesaid without the production of such receipt ; and if any such 
 attempts to go to sea without such clearance or transire, any such 
 officer may detain her until the said receipt is produced. 
 
 383. Subject to any alteration to be made by the Trinitij House, 
 the said collector shall pay over to the Trinitij House the pilotage 
 dues received by him in respect of any foreign ship ; and the 
 Trinitij House shall appl\' the same in manner following : 
 
 In the first place, in paying to any Pilot who may bring suffi- 
 cient proof of his having had the charge of such ship such dues 
 as would have been payable to him for such pilotage service if 
 the ship had been a British ship, after deducting there from the 
 poundage due to the Trinitij House : 
 
 In the second place, in paying to any unlicensed person who 
 may bring sufficient proof of his having, in the absence of a 
 licensed Pilot, had the cliarge of such ship, such amount as the 
 Trinitij House may think proper, not exceeding the amount which 
 would under similar circumstances have been payable to a licensed 
 Pilot, after deducting poundage : 
 
 And lastly, shall pay over to the Trinity House Pilot Fund the 
 residue, together with all poundage deducted as aforesaid. 
 
 381-. Whenever any difference arises between the Master and 
 the qualified Pilot of any ship trading to or from the port o^ London 
 as to her draught of water, the Trinitj .House shall upon applica- 
 tion by either party, made, in case of a ship inward bound, within 
 twelve hours after her arrival or at some time before she begins 
 to discharge her cargo, and in the case of a ship outward bound 
 before she (jiiifs her moorings, a])point some proper officer who 
 shall irieasiiie ilie sliip. ;iii(l settle the difference accordingly, and 
 there shall be paid to the odicir measuring such ship by the party 
 agiiinst wliom he decides, (he lollowing sums; (that is to say), one
 
 MERCHANT SIIirPING ACT, 1851. 5G9 
 
 guinea if the sliip ba below, and half a guinea if the ship be above 
 the entrance of the London Bodes at Wapimuj. 
 
 385. Subject to any alteration to be made by the Trinitij IFonxe, 
 there shall continue to bo paid to them, and carried over to the 
 Trmitij House Pilot Fund, the sums of money following; (that is 
 to say), 
 
 (1) A poundage of sixpence in the pound upon the pilotage 
 
 earnings of all Pilots licensed by the Triniti/ House : 
 
 (2) A sum of three pounds three shillings to be paid on the 
 
 first day of January in every year by every person 
 licensed by the Trinitij House to act as Pilot in any 
 district not nnder the superintendence of Sub-Com- 
 missioners, or in any part of such district : 
 And any qualified J'ilot g'iving a false account of his earnings, or 
 making default in payment of any sum due from him under this 
 section, shall forfeit double the amount jDayable, and shall fui-ther 
 be liable, at the discretion of the Trinitij House, to suspension or 
 dismissal. 
 
 386. Subject to any prior charges that may be subsisting 
 thereon by virtue of any Act or Acts of Parliament or otherwise, 
 the said Trinity House Pilot Fund shall be chargeable in the 
 first instance with such expenses as the Tnnity House may duly 
 incur in performance of their duties in respect of Pilots and 
 pilotage, and after payment thereof shall, subject to any altera- 
 tion to be made by the Trinity House, be administered by the 
 Trinity House for the benefit of such Pilots licensed by them after 
 the first day of October one thousand eight hundred and fifty-three 
 as are incapacitated for the performance of their duty by reason of 
 age, infirmity, or accident, or of the widows and children of Pilots 
 so licensed, or of such incapacitated Pilots only. 
 
 387. The two corporations of the Trinity Houses of the ports 
 of Ilullnnd Netv castle shaW continue to appoint Sub-Commissioners, 
 not being more than seven nor less than three in number, for the 
 purpose of examining Pilots in all districts in which they have 
 been used to make such appointments, and may, with the consent 
 of Her Majesty in Council, Init not otherwise, appoint like Sub- 
 Commissioners for any other district situate within their respective
 
 570 MARITIME LEGISLATION. 
 
 jurisdictions ; but no pilotage district already under the authority 
 of any Sub-Commissioners appointed by either of the said Corpo- 
 rations shall be extended, except with such consent as aforesaid ; 
 and no Sub-Commissioners appointed or to be appointed by the 
 Trinity Houses of Ilidl and Newcastle shall be deemed to be 
 pilotage authorities within the meaning of this Act, nor shall any- 
 thino- in this Act contained be held to confer upon the commis- 
 sioners for regulating the pilotage of the port of KiiKjston-vpon- 
 Hdll and of the river Ilmnher any jurisdiction of a different nature 
 or character from that which they have heretofore exercised. 
 
 388. No Owner or Master of any ship shall be answerable to 
 any person whatever for any loss or damage occasioned by the fault 
 or incapacity of any qualified Pilot acting in charge of such ship, 
 within any district where the employment of such Pilot is com- 
 pulsory by law. 
 
 In the discussion of this part of the Act I would at 
 once state that I consider it imperative to do away with 
 compulsory pilotage in its present form altogether as a 
 hlot upon our Statute Book, and if it is conceded, as I 
 hope it will he, that the abuses Avhich have grown up 
 with the system are such as to admit of no other remedy, 
 it will be clear that this part of the Act must be entirely 
 remodelled. 
 
 I would here refer to the remarks of Mr. Lindsay, in 
 his letter to the President of the Board of Trade in the 
 year ISGO, where, at page 217, he treats of this question ; 
 he, however, has evidently only been struck by the way in 
 which present legislation increases the burdens of the ship- 
 owner without perceiving the injustice to all which it sanc- 
 tions and perpetuates. He also seems to use the term ' com- 
 pulsory pilotage ' wlicn s})('akiiig of an obligation arising 
 out of a ])()licv ol" insurance; such a use of the term only 
 serves to comphcate the (piestions, whicli seem to me to be 
 tlu' rollo\vinj:r : —
 
 MERCHANT SIIirPING ACT, 1854. rul 
 
 (1) Wlictlier it can continue to be part of the legisla- 
 
 tion of the country that in certain districts 
 vessels shall not be navigated except by a 
 duly licensed pilot specially employed for the 
 purpose. 
 
 (2) Whether the enactments by which the employ- 
 
 ment of such duly licensed pilots is regulated 
 are such as to allbrd complete and impartial 
 justice to all parties. 
 Into a separate consideration of the first of these 
 questions I do not })ropose to enter at any length, as Mr. 
 Lindsay and others have written ably and comprehen- 
 sively on the subject, but some few remarks may not be 
 out of place. 
 
 I can never acknoMdedge that a pilot ought to be, or 
 was originally intended to be, more than a help to the 
 officers of the ship in avoiding the intricacies or dangers 
 of local navigation. Of course, it cannot be denied that 
 a master of a vessel visiting a port for the first time 
 cannot be so well acquainted with shoals, sands, or 
 beacons, as one who makes his livehhood by conducting 
 vessels at all times in that particular district ; on the 
 other hand, how can such pilot, taking charge of a vessel 
 for the first time, be as well acquainted as her own 
 master with the sailing, steaming, or steering qualities, 
 from a defective appreciation of which as many accidents 
 arise as from any other circumstance ? There is, it seems 
 to me, no reason whatever why a master of a vessel who 
 has undertaken to perform a voyage, say from Sydney to 
 London, should be relieved of responsibilit}^ at any point 
 short of either of these places ; by all means allow him to 
 make use at any point of such skilled assistance as may 
 present itself; but if, with the knowledge that such assist- 
 ance will doubtless be at his command, he does not feel
 
 572 MARITIME LEGISLATION. 
 
 equal to the responsibility of the voyage, it is his fault 
 if he undertake it, and our hardy mariners would look 
 upon it as an insult if it were seriously suggested that they 
 could not find their way anywhere. 
 
 Tliis brino-s me to the second question above pro- 
 pounded ; and here, having felt severely the hardships 
 of the law as it at present stands, I must enter more 
 particularly into an examination of the clauses in 'he 
 Merchant Shipping Act which have brought about a st!ite 
 of things calling, I cannot but think, for a speedy and 
 effectual remedy. 
 
 To make myself clear it is necessary that I should point 
 out the clauses and their connection. 
 
 By sections 376 to 379 it is made compulsory upon 
 masters of vessels to take on board in certain localities the 
 first qualified pilot who shall offer his services ; by sec- 
 tion 388 it is enacted that no owner or master of a ship 
 shall be answerable to anj' person whatever for any loss 
 or damage occasioned by the fault or incapacity of any 
 qualified 2^dot who has thus compulsorily taken charge ; 
 section 372 stipulates that every pilot shall execute a bond 
 for 100/. ; and section 373 limits the amount recoverable 
 from any such pilot to the amount of such bond, plus the 
 pilotage payable to him for the voyage on which he was 
 eni>a<^ed. 
 
 I say in certain localities a pilot must be employed, 
 l)iit it must nut, therefore, be suj^posed that at any given 
 j)lac(' pilotage must either be or not be compulsory. 
 ()]i llie contrary, the two systems are frequently co- 
 existent, and if my illust rations are taken solely from the 
 London district, it must not be supposed that the evils 
 which are here so patent may not be equally felt in other 
 1)1 aces. 
 
 We will Jiow sui)pO!>e a vessel on her voyage from
 
 MERCHANT SIIirriXG ACT, 1854. 673 
 
 t}io Mediterranean, or elsewhere in tlie world south of 
 Boulogne,^ to have navigated in safety through the dangers 
 of the seas, through the English Channel crowded with 
 shipping, and to have arrived at Dungeness. 
 
 Here her officers, if she is bound for the Thames or 
 Medway, become, in the eye of the law, suddenly in- 
 capable of taking her any farther, and must employ a 
 licensed pilot, who is supposed to bring with him such 
 consummate skill as to be able to preserve the vessel from 
 dangers, not only below the water, but above it, as col- 
 lisions, &c,, so effectually, that the Legislature has con- 
 sidered itself justified in transferring to liim the whole 
 charge and responsibility for the vessel and her cargo. 
 Not so, however, should she be destined for any other 
 port, as Hull, Newcastle, &c. ; in such a case the master 
 may, if he chooses, avail himself of the services of the 
 same pilot, but he still remains the responsible person in 
 the event of au}^ accident happening while the j)ilot is in 
 charge, he having a remedy against the pilot to the extent 
 of 100/., which we shall presently see is almost illusory ; 
 thus from a comparison of these two cases, where the 
 vessel in one case remains within the j^ilotage district, in 
 the other passes through it, it is apparent that compulsory 
 pilotage is not rendered necessary by dangers of naviga- 
 tion, and therefore justice demands that the two vessels 
 should be treated alike, at any rate up to the point where 
 their courses diverge. 
 
 But it may be stated that when such point is once 
 passed, no hardship remains, and it is therefore necessary 
 to produce further illustrations, for which purpose I must 
 look at the Avorking of the Act as regards wholly un- 
 offending parties. I will therefore suppose that my vessel, 
 the A, is bound down the Thames with a cargo of mer- 
 
 ' Now Brest.
 
 574 MARITIME LEGISLATIOX. 
 
 cliaiidise belonging to sundry shippers in all parts of the 
 kingdom, and is brought to an anchor in a proper berth 
 in Sea Eeach to wait for tide. While she is lying there 
 motionless, and of course helpless, two steamers are 
 making their way up to London ; one, the B, is from 
 St. Petersburg, and has taken a Trinity pilot at Orfordness, 
 the other, the C, is from Odessa, and has taken a Trinity 
 pilot at Dungeness ; near the Nore Light, some distance 
 below where my vessel is lying, their courses converge, 
 and from that point upwards they proceed in the same 
 track, while their tonnage, draught of water, speed, and, 
 I may add, their power of doing mischief, are, in all re- 
 spects, absolutely identical. One of these steamers runs 
 down and sinks my vessel at her anchor, and my whole 
 property is lost ; will it be credited that if that steamer is 
 the B, I shall recover from her owners every farthing of 
 my loss ; if it is the C, I shall recover nothing ? There- 
 fore, although the pilots on board both steamers were 
 licensed by the same authority, although the grossest in- 
 cai>acity may be manifested by the one in charge of the 
 offending vessel, and although my ship was absolutely 
 helpless, the Legislature makes it a matter of life and 
 death to me whether the steamer by which the damage 
 was done cleared originally from St. Petersburg or from 
 Odessa ! 
 
 It may ]je said that this is the worst that can happen, 
 and tliat it is my fault if I have not covered myself by 
 assurance. Altlioiigh this ol)jection would only amount 
 to an argument, that what would be an injustice towards 
 any other person would be no injustice towards an under- 
 -writer, I shall proceed to show that here also the enact- 
 ments in force are such as to allow even the most complete 
 fores'iL'lit to !)(' Ijiilllcd, nnd t]i:i1 no one can ('(rectuall^y giiai'd 
 against possit)!*' utter ruin IVoiii iiii;i\'oi(lal)le casualty.
 
 MERCHANT SHIPPING ACT, 1854. 675 
 
 To prove this certainly most serious assertion, I will 
 move my vessel higher up the Thames, and in this case 
 she shall be inward bound, having arrived with a cargo 
 to be discharged into lighters in the stream, A discharging 
 berth is pointed out l)y the harl^our-master, where she is 
 moored between the buoys, and the discharge is com- 
 menced, and according to the terms used in almost all 
 marine policies, the underwriters are answerable for all 
 damaf]fe occurrhisf to her uiUil she has been 'moored 
 twenty-four hours in good safety' ; after the expiration of 
 this period they are absolved from all further liability. 
 In spite of the position of good safety into which she has 
 been ordered, she is run down and sunk by a steamer 
 which is in charge of a pilot, and ha\'iiig no recourse 
 against my underwriters, I look for redress to the owners 
 of the steamer. 
 
 Is it sufficient for me to ascertain whether she was 
 bound for a ' northern or southern port, say for St. 
 Petersburg or for Odessa, as in the last illustration ? By 
 no means, for should she be bound to the former port, 
 and not on account of her destination subject to compulsory 
 pilotage, I may be met with the statement that she carried 
 passengers, and on that account was so subjected; in 
 order to procure exemption on this ground it is only 
 necessary to prove that any one person not belonging to 
 the crew was on board, whether any fare had been paid 
 or not ; if this can Ije sul^stautiated, the owners are free 
 from aU liability. 
 
 Thus utterly foiled in my attempts to obtain com- 
 pensation from the owners of the wrong-doing steamer, 
 and without recourse against my underwriters, my only 
 chance is to proceed against the pilot himself. It mi^ht 
 at any rate be supposed that the Legislature, placino- in 
 his hands, as has been shown, such enormous power of
 
 570 MARITIME LEGISLATION". 
 
 inflicting injury, and reducing liis liability to such an in- 
 finitesimal amount, would have made the remedy against 
 him simjDle and certain. Such, however, is far from being 
 the case, and it is only by an action at common law, 
 at which all the evidence required for the original action 
 in the Court of Admiralty must be reproduced, that 
 any portion of the 100/. can be recovered ; that under 
 such circumstances any settlement out of Court mus 
 be preferable to an action cannot be a cause of astonish- 
 ment. 
 
 I may at once state that the illustrations selected by 
 me are not overdrawn, but will be found fully exemplified 
 bv the case of the ' Beta,' which was taken by me from 
 the Hidi Court of Admiralty to the Privy Council. The 
 shorthand-writer's notes in this case are at the disposal 
 of all who would like to see the gross injustice which 
 is sanctioned by the law, as at present laid down and 
 interpreted. 
 
 The enactments in question are open to further ob- 
 jection from the great temptation they hold out to inte- 
 rested parties to adopt the most discreditable devices to 
 evade responsibility, and even to have recourse to wilful 
 perjury. In the case of the 'Beta,' the owners of that 
 steamer benefited to the extent of at least 5,000/., which 
 loss was thrown upon the owners and underwriters of the 
 Mecklenburg barque ' Fides ' and her cargo, by the simple 
 fact that they produced two persons who swore that they 
 had been presented with free passages ; surely generosity 
 never had a more ample and immediate reward ! 
 
 Would it, however, be going too far to conjecture 
 that after such experience the owner of a vessel would 
 tJike care to be provided with a passenger for future 
 occasions ? 
 
 Tills, however, is iml ihc worsi ]),'irf of llic didicidty,
 
 MERCHANT SHIPPING ACT, 18.'54. 577 
 
 as will be clear when the mode of procedure is considered, 
 which is as follows. My ship having, while at anchor, as 
 described in the foregoing illustrations, been run down 
 and sunk by a steamer, my first care is to ascertain lliat 
 all the requirements of the Act of Parliament, as far as 
 they apply to my vessel, were complied with. The result 
 of my investigation being satisfactory, after making an 
 application to the owners of the steamer for compensa- 
 tion, which is at once declined, I put my case in the 
 hands of a proctor, who proceeds in the High Court of 
 Admiralty to prosecute my claim. On behalf of the 
 steamer the only plea is that she was in charge of a duly 
 licensed pilot, employed by compulsion of law, and that 
 therefore, under the 388th section, her owners are 
 exempt from liability, and this plea succeeds unless it can 
 be proved by me that the accident was not solely due to 
 the fault or incapacity of the pilot, but that the crew of 
 the steamer were partly to blame by not having properly 
 carried out the pilot's orders. 
 
 But the evidence by which alone I can hope to prove 
 such an allegation must be taken from the crew of such 
 steamer, or from the uncorroborated statement of the 
 pilot himself, and, even if it were to the interest of all the 
 witnesses to be truthful, it may be imagined how difficult 
 it would be to obtain proof sufficient from those quarters. 
 But it is directly to the interest of all to suppress tlie 
 truth in such a case ; the crew, of course, will do all they 
 can to clear themselves from blame, particularly where 
 by so doing they clear their owners from responsibility ; 
 while the pilot, having to look to the owners for further 
 employment, and being, in very man}^ instances at least, 
 engaged from year's end to year's end by the same firm, 
 must be, to say the least, very sorely perplexed if he tries 
 to do what is right. Li the first place, his evidence will 
 
 r V
 
 578 MARITIME LEGISLATION. 
 
 almost certainly be uncorroborated ; in tlie second place, 
 he knows that if he succeeds in throwing the blame upon 
 the crew of the steamer, he will be inflicting upon the 
 owners what may possibly be an enormous loss, and will 
 certainly expect to forfeit their patronage; and, lastly, 
 his own liability, in the case of a decision adverse to him- 
 self cannot be more than 100/., and is in most cases nil, 
 for if lie has any means at all, he will almost certainly be 
 a member of a Club which will undertake to defend him 
 if any proceedings at common law should really be taken 
 aorainst him. If, however, the owners of the steamer 
 agree to indemnify him against any loss, all inducement 
 for him to speak the truth is at an end, except as be- 
 tween his conscience and himself; while for the owners 
 of the steamer a maximum sum of 100/. is in one scale, 
 and an unknown liability of many thousands may be in 
 the other, and it is not too much to conclude therefore 
 that such a bargain, however corrupt it may be thought, 
 is not unlikely to have ere this exercised an influence on 
 the decision of the Court where such cases come for 
 hearing. 
 
 Having now stated at some length my objections to 
 the present system of compulsory pilotage, I would point 
 out that that system can only be defended by one line of 
 arf^ument, viz. that without it the emoluments of the 
 pilots would be much curtailed, and it woidd possibly not 
 be worth their while to devote themselves wholly to the 
 business. This argument, however, cannot be suffered to 
 prevail for a moment when it has once been conclusively 
 ascertained that the system in defence of which it is used 
 is in itself an injustice ; it is, moreover, clearly based upon 
 a fallacy, as in llic northern part of the London district, 
 whcfc ])ilotage is not compulsory, we do nol licai' of pilots 
 not ('Mnrni<' siifricicnl, lo rciimiicrjilc tlicui, but I'allicr of
 
 MERCHANT SHIPPING ACT, 1854. 570 
 
 there being numbers of unlicensed men who enter into 
 competition with them. 
 
 These men (watermen, fishermen, old master mariners, 
 or others), without being in possession of any lawful 
 authority, offer their services to any master who may be 
 unacquainted with the part of the coast which he has to 
 navigate, and where the law does not require him to take 
 or pay for a duly licensed pilot. 
 
 These men may be thoroughly competent, but the 
 Legislature can never have imagined that their enactments 
 would serve to create a body of men who would get their 
 living by breaking the law, which they now actually do, 
 even when, as is frequently the case, they are shipped as 
 able seamen and entered upon the articles as such. 
 
 Fresh hardships have grown out of this state of things, 
 as will be seen by an investigation into the proceedings of 
 the Gravesend Borough Magistrates, who have made it a 
 practice to issue warrants on the simple ipse dixit of a 
 pilot against masters of vessels alleged to have employed 
 an unlicensed person within their jurisdiction. 
 
 So soon as the vessel in question is reported to have 
 arrived at her place of destination, say, for instance, 
 Sunderland, or some other northern port, the warrant is 
 placed in the hands of police officers, who proceed without 
 delay to arrest the master, bring him in custody to Graves- 
 end for trial, and not unfrequently the charge has after 
 all been dismissed for want of evidence to prove the 
 offence. 
 
 The magistrates, however, never give costs against the 
 pilots, and thus the unfortunate master has to find his way 
 back to his vessel, after being mulcted of several pounds 
 for expenses. If, then, the business is so profitable as to 
 excite persons to engage in it wlio have not the powerful 
 recommendation of the Trinity House license to protect 
 
 V V 2
 
 580 MARITIME LEGISLATION. 
 
 tliem, there surely can be no fear that the supply of pilots 
 wiU fail. 
 
 Place the pilots under a more stringent authority than 
 at present exists, so that complaints against them, which 
 are now invariably referred to the common law courts, 
 may be promptly investigated by the Trinity House, or 
 any other central authoritj^, and as severely punished as 
 complaints against masters and mates holding certificates 
 of competencj^ ; and as a licensed pilot, by virtue of his 
 licence, is empowered to take charge of the property of 
 parties who have no other security than their belief that 
 the British Government will take care to permit only fit 
 and competent persons to be entrusted with a j^ilot's license, 
 whereas it devolves upon the owner of the ship to employ 
 whatever master or mate he chooses, and in whom he has 
 confidence — I say, this being the state of the case, the 
 duly licensed pilot ought to be subject to a more severe 
 law than either masters or mates can be ; at present, how- 
 ever, he can offend with impunity, as, if you hesitate to 
 incur the expenses of legal proceedings without the hope 
 of any pecuniary advantage, you have, virtually, no remedy 
 against him. 
 
 I do not wish to enter here into any examination of 
 the question of free-trade in pilotage, nor will I do more 
 tlian suggest that if the system of licensing pilots is to be 
 continued, there can be no reason why different classes of 
 license should not be adopted, so that every one going on 
 board a vessel for the purpose of taking charge of her, if 
 even only to change docks, should be provided with some 
 sort of a license from the central authority, a system which 
 is very generally adopted on the Continent. 
 
 1 repeat that all I have desired to do is to point out 
 tlic abuses of th(! ])res('nt syslciii, and I liave not llie least 
 (l(>iil)t iIkiI i1i(' fvils and tlicir j'ciiicdy will I'cceive pr()iii2)t
 
 MERCHANT SHIPPING ACT, 1854. 581 
 
 consideration at the hands of Her Majesty's Govern- 
 ment. 
 
 To tlie special clauses I have only to add : 
 
 334. Here, most likely, would the order to pay a fine 
 in cases of non-compliance be necessary ; this is the mode 
 in which, on the Continent, public bodies are kept to their 
 duties, and it cannot be denied that it has worked satis- 
 factorily. 
 
 336. Why not give to every person considering him- 
 self aggrieved the right of appeal; — how shall, for in- 
 stance, as this clause now stands, any foreigner bring his 
 complaint before the Board of Trade ? 
 
 348. For the reasons stated in my introductory remarks 
 to this part, I would propose to punish this offence, and 
 every one aiding and abetting in it, as a misdemeanour. 
 
 362. It will be necessary to take into most serious con- 
 sideration, if the abolishing of compulsory pilotage should 
 not, in cases of distress, justify the employment of unlicensed 
 pilots. 
 
 365. I would propose to add under number 
 
 (12) Engages to pilot any vessel out of his regular 
 turn, or makes attempts to enter into engagements 
 to that effect. 
 
 372 and 373. It ought to be seriously considered if it 
 would not be far better to raise the amount of bond re- 
 quired, and insist upon substantial securities for its prompt 
 fulfilment, than to retain the present system, which has 
 worked so unsatisfactorily. Pilots very rarely have any 
 property when they are called upon to make good any 
 damage ; usually, everything they possess is settled on 
 their families, and it is next to impossible to obtain justice 
 from them under the present state of the law. 
 
 374. The decision in the case of the ' Beta,' to which 
 I referred in my introductory remarks to this part of the
 
 682 MARITIME LEGISLATION. 
 
 Act, proves, beyond all question, tliat this clause requires 
 alteration. 
 
 The 31st of January next following the date of the 
 license was undoubtedly fixed upon as the term beyond 
 which no license should continue in force, in order to give 
 the authorities, viz. the officers of the Trinity House, the 
 Sub-Commissioners of Pilotage, or the Collectors of 
 Customs, a month's time from the end of every calendar 
 year to report to the Trinity House any complaint, or 
 cause of complaint, made, or arising, during the previous 
 3^ear. 
 
 In the case under consideration, the Judicial Com- 
 mittee decided that a license, granted on January 21 — 
 consequently nine days before the expiration of the time 
 within which such report might have been sent in — was 
 valid in law, because a contrary construction would allow 
 certain districts to be for days, or possibly for weeks, with- 
 out any cpialified pilots. 
 
 This interpretation is as unjust as erroneous ; unjust, 
 because if the Trinity House had found any difficulty in 
 the working of this clause, it might have given due notice 
 of the necessity of an alteration, and until such notice 
 had been given the public had a right to consider the plain 
 words of the enactment in fuU force ; and erroneous, 
 because it is impossible to believe that if the Legislature 
 meant to give thirty-one days for lodging complaints, any 
 judicial tiihimal could have it in their power to reduce 
 such period by one-third. If the words of the clause 
 were not to be interpreted literally, any pilot, knowing 
 that complaints likely to lead to the suspension of his 
 license were in contemplation, would be sure to be the 
 first to interpret the decision in his favour, and present his 
 license lor renewal on any day before the time fixed by 
 liw for such renewal, viz. laiiuary 31.
 
 MERCHANT SHIPPING ACT, 1854. 583 
 
 The want of qualified Pilots could easily be avoided 
 by grantiii,^ interim certificates, to serve only for the time 
 durinsr which the license was left for renewal. 
 
 375. I think the manner in which the revocation or 
 suspension of Pilots' Licenses is to take place ought here 
 to be distinctly stated. 
 
 37G-oT9. These clauses will require very material 
 alteration if my suggestions are adopted. 
 
 Part VIII. — Wreds, Casualties, and Salvage. 
 
 432. In any of the cases following ; (that is to say), 
 Whenever any ship is lost, abandoned, or materially damaged 
 
 on or near the coasts of the United Kingdom ; 
 Whenever any ship causes loss or material damage to any other 
 
 ship on or near such coasts ; 
 Whenever by reason of any casualty happening to or on board 
 
 of any ship on or near such coasts loss of life ensues ; 
 Whenever any such loss, abandonment, damage, or casualty 
 happens elsewhere, and any competent witnesses thereof 
 arrive, or are found at any place in the United King- 
 dom ; 
 It shall be lawful for the inspecting officer of the Coastguard, or 
 the principal officer of Customs, residing at or near the place where 
 such loss, abandonment, damage, or casualty occurred, if the same 
 occurred on or near the coast of the United Kingdom, but if else- 
 where, at or near the place where such witnesses as aforesaid arrive 
 or are found, or can be conveniently examined, or for any other 
 person appointed for the purpose by the Board of Trade to make 
 inquiry, respecting such loss, abandonment, damage, or casualty ; 
 and he shall, for that pur}X)se, have all the powers given by the 
 First Part of this Act to inspectors appointed by the said Board. 
 
 I would surri?est to make these inquiries alwavs com- 
 pulsory by simply cancelling the words ' It shall be lawful.' 
 It is evident that if any unfair dealing with a ship has
 
 5&4 MARITIME LEGISLATION. 
 
 taken place, the crew are most ready to confess tlie trntli 
 soon after they have Landed, and if one of the two officers 
 referred to in this clause is obliged immediately to insti- 
 tute an inquiry, the execution of the protest, which is 
 always urged forward by the master with all possible 
 despatch, will be postponed, and the whole truth will be 
 more likely to come out ; but as the clause now stands 
 Coastguard or Customs' Officials generally find a reason 
 for avoiding to act on their own responsibility, and by a 
 reference to the Board of Trade much time is unnecessarily 
 lost, and, as in the case of the ' Trial ' (above referred to), 
 one or other of the principal witnesses may have been 
 sent away in order to prevent his cross-examination. 
 
 433. If it appears to sucli officer or person as aforesaid, either 
 upon or without any such preliminary inquiry as aforesaid, tliat a 
 formal investigation is requisite or expedient, or if the Board of 
 Trade so directs, he shall apply to any two justices or to a stipen- 
 diary magistrate to hear the case ; and sucli justices or magistrate 
 shall thereupon proceed to hear and try the same, and shall for 
 that purpose, so far as relates to the summoning of parties, com- 
 pelling the attendance of witnesses, and the regulation of the pro- 
 ceedings, have the same powers as if the same were a proceeding 
 relating to an offence or cause of complaint, upon which they or 
 he have power to make a summary conviction or order, or as near 
 thereto as circumstances permit ; and it shall be the duty of such 
 officer or person as aforesaid to superintend the management of the 
 case, and to render such assistance to the said justices or magistrate 
 as is in his power ; and, upon the conclusion of the case, the said 
 justices or magistrate shall send a report to the Board of Trade, 
 containing a full statement of the case and of their or his opinion 
 thereon, accompanied by such report of or extracts from the evi- 
 dence, and such observations (if any) as they or he may think fit. 
 
 Besides the Stipendiary Magistrates, the County Court 
 Judges, T iui.'igiiic, would be more fitlo coiulncl llic ollicial
 
 MERCHANT SHIPPING ACT, 1854. 585 
 
 iiK|iiiries here under consideration tlian any two Justices 
 of the Peace, and I woukl suggest the substitution of them 
 for the hitter. 
 
 435. In places where there is a Local Marine Board, and where 
 a stipendiary magistrate is a member of such Board, all such inves- 
 tigations as aforesaid shall, whenever he happens to he present, be 
 made before such magistrate ; and there shall be paid to such ma- 
 gistrate in respect of his services under this Act, such remuner- 
 ation, whether by way of annual increase of salary, or otherwise, 
 as Her Majesty's Secretary of State for the Home Department, 
 with the consent of the Board of Trade, may direct ; and such 
 remuneration shall be paid out of the Mercantile Marine Fund. 
 
 The same remuneration shouhl be given to the County 
 Court Judges as is to be paid to the Stipendiary Magis- 
 trates. 
 
 439. The Board of Trade shall throughout the United King- 
 dom have a general superintendence of all matters relating to 
 wreck ; and it may, with the consent of the Commissioners of Her 
 Majesty's Treasury, appoint any officer of Customs or of the Coast- 
 guard, or any officer of Inland Revenue, or, when it appears to such 
 Board to be more convenient, any other person, to be a receiver of 
 wreck in any district, and to perform such duties as are hereinafter 
 mentioned, and shall give due notice of every such appointment. 
 
 The usefulness of Eeceivers \Yhenever they are nothing 
 but public officers has been most effectually proved by my 
 own experience in all matters where I have come in 
 personal contact with them, and applied for their assist- 
 ance in conformity with sections 6 and 14 of their Instruc- 
 tions. It is a very difTerent matter, however, when any 
 other person acts as Eeceiver, as local and personal in- 
 terests are almost invariably so powerful as to prevent his 
 actimj with vicfour and efficiencv. For this reason I am
 
 58G MARITIME LEGISLATION. 
 
 of opinion tliat officers of Customs or Coastguard should 
 always be chosen where joracticable. 
 
 441. "^Tienever any ship or boat is stranded or in distress at 
 auv place on the shore of the sea, or of any tidal water within the 
 limits of the United Kingdom, the receiver of the district within 
 which such place is situate shall, upon being made acquainted with 
 such accident, forthwith proceed to such place, and upon his arrival 
 there he shall take the command of all persons present, and assign 
 such duties to each person, and issue such directions, as he may 
 think fit with a view to the preservation of such ship or boat, and 
 the lives of the persons belonging thereto, and the cargo and ap- 
 parel thereof; and if any person wilfully disobey such directions, 
 he shall forfeit a sum not exceeding fifty pounds ; but it shall not 
 be lawful for such receiver to interfere between the Master of such 
 ship or boat and his Crew in matters relating to the management 
 thereof, unless he is requested so to do by such Master. 
 
 The last part of this clause has been read as if the 
 Board of Trade intended to withhold the Eeceiver's inter- 
 ference in any case where the master of a ship does not 
 actually desire the same, whereas, it is evident that it was 
 only meant to leave the disciphne of the ship's crew in the 
 master's hands. 
 
 A more distinct interpretation of this clause is of the 
 utmost necessity, as the clear instructions issued to the 
 Eeceivers prove that they are intended to assist any master 
 who may Ijc in distress in such a manner that the interests 
 of the owners of the ship and cargo and their underwriters 
 may not be jeopardised by the slippery advice only too 
 often given by parties whose profits would be seriously 
 diminished if these interests were promptly and efficiently 
 protected. 
 
 The case of the ' Jeanne,' at Maryport, is one in point ; 
 li;i(l lir-r master not been advised that he had nothing to 
 do willi the Iteceiver, a very diiferent icsiilt would have
 
 MERCHANT SHIPPING ACT, 1854. 587 
 
 been obtained ; as it turned out, I had to be grateful that 
 the exertions of the lleceiver, Mr. Lindsay, exposed the 
 conduct of the parties concerned, and the reports made 
 by that gentleman in this case to the Board of Trade will 
 be found to throw much light npon the practices so rife 
 in many of our outports. 
 
 448. Any receiver, or in liis absence any justice of the peace, 
 shall, as sooq as conveniently may be, examine upon oath (which 
 oath they are hereby respectively empowered to administer) any 
 person belonging to any ship which may be or may have been in 
 distress on the coast of the United Kingdom, or any other person 
 who may be able to give any account thereof, or of the cargo or 
 stores thereof, as to the following matters ; (that is to say), 
 
 (1) The name and description of the ship ; 
 
 (2) The name of the master and of the owners ; 
 
 (3) The names of the owners of the cargo ; 
 
 (4) The ports or places from and to which the ship was bound ; 
 
 (5) The occasion of the distress of the ship ; 
 (G) The services rendered ; 
 
 (7) Such other matters or circumstances relating to such ship, 
 or to cargo on board the same, as the receiver or justice 
 thinks necessary ; 
 
 And such receiver or justice shall take the examination down in 
 writing, and shall make two copies of the same, of which he shall 
 send one to the Board of Trade, and the other to the secretary of 
 the committee for managing the affairs of Lloyd's in London, and 
 such last-mentioned copy shall be placed by the said secretary in 
 some conspicuous situation for the inspection of persons desirous of 
 examining the same ; and for the purposes of such examination 
 every such receiver or justice as aforesaid shall have all the powers 
 given by the First Part of this Act to inspectors appointed by the 
 Board of Trade. 
 
 Here I may refer to a memorial which was drawn up 
 by me as far back as the spring of 18G4, and presented to 
 the Board of Trade with the signatures of the Salvage
 
 588 MAr.ITIME LEGISLATION. 
 
 Association of Lloyd's and of otlier parties interested in 
 such Cjuestions.^ We therein urged the necessity of in- 
 sisting that these depositions should be made not only by 
 British but by foreign masters, and within twenty-four 
 hours of arrival ; it is exaggeration to state that the 
 masters are so urgently employed after arrival at any place 
 in distress that they are entirely unable to find time for 
 appearing before the Eeceiver to make the depositions, 
 which when promptly taken have often proved to be of 
 the very utmost importance to the parties concerned. 
 
 But the fact is that immediate action on the part of 
 the Eeceiver to secure a statement of the principal occur- 
 rences dunng the voyage prevents unscrupulous masters 
 from concocting average claims upon the parties who are 
 unfortunately tied up with them, and, in order to avoid 
 this, the only efficient remedy against such irregularities, 
 all sorts of excuses are brought forward ; nay, a former 
 Eeceiver used to plead as a reason for the impossibility of 
 obtaining these depositions from foreigners that he could 
 not understand their lan(?uao:es and he would not be able 
 to obtain willingly the assistance of an efficient interpreter. 
 I imagine that if the Board of Trade adopts the suggestion 
 of the memorial above referred to, means will be found to 
 secure through the consular officers the attendance of an 
 interpreter, and in case of an isolated refusal energetic 
 steps should be taken to obtain the desired amendment. 
 
 Sometimes I have been met in collision cases with the 
 observation that the statements contained in these deposi- 
 tions were only used to the detriment of the parties making 
 them. Xovv it is evident that they prevent the subsequent 
 settijig up (jf untruthful assertions, and for this reason 
 al<jne I mainlaiii tliat they are for the public good, and 
 
 1 Viilc p. G55.
 
 MERCHANT SIIIPriNG ACT, 1854 689 
 
 when made by both sides can be more easily compared 
 than at any later period. 
 
 I admit that injustice might be committed if in a case 
 of collision the deposition of one side were to Ije published 
 before that of the other had been made ; this difficulty 
 will, however, doubtless disappear when my suggestion 
 for taking all depositions within twenty-four hours after 
 arrival is adopted. But there could be no objection to an 
 enactment that in cases of collision the depositions of both 
 sides shall be published simultaneously. 
 
 Would it not be a material assistance to the Receiver 
 if leave were given for any party interested to attend the 
 taking of the depositions, and to be at liberty to suggest 
 such questions as he may think fit ? 
 
 449. Any examination so taken in writing as aforesaid, or a 
 copy thereof, purporting to be certified under the hand of the re- 
 ceiver or justice before whom such examination was taken, shall 
 be admitted in evidence in any Court of justice, or before any per- 
 son having by law or by consent of parties authority to hear, 
 receive, and examine evidence, as irrimd facie proof of all matters 
 contained in such written examination. 
 
 The Court of Admiralty has objected to admit copies 
 of Eeceivers' depositions as evidence ; how that is possible 
 under this clear enactment I am unable to conceive, but 
 the matter is so important that particular inquiry ought 
 to be made into it. I have nwself been obliged to subpoena 
 Eeceivers from various parts of the coast for the production 
 of original depositions in some Admiralty suits, in order to 
 avoid the objection that copies were no evidence ; now 
 this is clearly against the meaning of this clause.^ 
 
 ^ This section has since been repealed by 39 & 40 Vict. c. 80, Sch., 
 Part I.
 
 590 MARITIME LEGISLATION. 
 
 450. The following rules shall be observed by any person find- 
 ing or taking possession of wreck within the United Kingdom ; 
 (that is to say), 
 
 (1) If the person so finding or taking possession of the same 
 
 is the Owner, he shall as soon as possible give notice to 
 the receiver of the district within which such wreck is 
 found, stating that he has so found or taken possession 
 of the same ; and he shall describe in such notice the 
 marks by which such wreck is distinguished : 
 
 (2) If any person not being the Owner finds or takes posses- 
 
 sion of any wreck, he shall as soon as possible deliver 
 the same to such receiver as aforesaid : 
 And any person making default in obeying the provisions of 
 this section shall incur the following penalties ; (that is to say), 
 
 (3) If he is the Owner and makes default in performing the 
 
 several things the performance of which is hereby im- 
 posed on an Owner, 
 
 He shall incur a penalty not exceeding one hundred pounds : 
 
 (1) If he is not the Owner and makes default in performing 
 the several things the performance of which is hereby 
 imposed on any person not being an 0\\Taer, 
 
 He shall forfeit all claim to salvage : 
 
 He shall pay to the Owner of such wreck, if the same is claimed, 
 but if the same is unclaimed, then to the person entitled 
 to such unclaimed wreck, double the value of such 
 wreck (such value to be recovered in the same way as a 
 penally of like amount) ; and 
 
 He shall incur a penalty not exceeding one hundred pounds. 
 
 The case of the ' North ' shows that it is not only neces- 
 sary to make the pnnislmients for the offences described 
 niidcr this clause more severe, but that in all counties 
 haviii'/ partly a seafaring population, the Bench will not be 
 very easily induced to return a conviction or even a com- 
 mittal under such ciiTumstances ; and in order to avoid 
 Ihe re])roaches wliich have so frequently emanated fi-oin 
 FoHii'm rjovenniieiils, il would be advisable, Avherever no
 
 MERCHANT SIIIPPrNG ACT, 1854. Cni 
 
 Stipendiary Magistrate exists to make the County Court 
 Judges the committing magistrates, and to remove the 
 trial of such cases to the Central Criminal Court, making 
 it obligatory u^jon the Judge of the Admiralty Court to 
 attend such trials, in order to satisfy everybody that not 
 only nothing but the strictest possible justice is required, 
 but that the Bench is in possession of sufficient knowledge 
 of Maritime Law. 
 
 I would further suggest in those parts of the coast 
 where irregularities similar to those of the ' North ' have 
 come to light, to make more frequent changes in the 
 Coastguard, who in fact are the real officials upon whom 
 alone the Eeceiver can depend for information ; and if 
 retained too long in one place will only too easily enter 
 into connections with fishermen and others, who require 
 the greatest supervision. 
 
 451. If any receiver suspects or receives information tliat any 
 wreck is secreted or in tbe possession of some person who is not 
 the owner thereof, or otherwise improperly dealt with, he may 
 apply to any justice of the peace for a warrant, and such justice 
 shall have power to grant a warrant, by virtue whereof it shall be 
 lawful for the receiver to enter into any house or other place, 
 wherever situate, and also into any ship or boat, and to search for, 
 and to seize and detain, any such wreck as aforesaid there found ; 
 aud if any such seizure is made in consequence of information that 
 may have been given by any person to the receiver, the informer 
 shall be entitled by way of salvage to such sum, not exceeding in 
 any case five pounds, as the receiver may allow. 
 
 ^Miere there are no Stipendiary Magistrates, I would 
 here also empower the County Court Judges to grant 
 warrants. 
 
 452. Everv receiver shall within fortv-eight hours after takinci- 
 possession of any wreck cause to be posted up in the Custom-house 
 of the port nearest the place where such wreck was found or seized,
 
 592 MARITIME LEGISLATION. 
 
 a description of the same, and of any marks by vvliich it is dis- 
 tino-uislied, and shall also, if the value of such wreck exceeds 
 twenty pounds, but not otherwise, transmit a similar description to 
 the secretary of the committee at LloycVs aforesaid ; and such secre- 
 tary shall post up the description so sent, or a copy thereof, in some 
 conspicuous place, for the inspection of all persons desirous of 
 examining the same. 
 
 The Eeceiver ought to give to Lloyd's notice of any 
 wreck irrespective of its value, as undoubtedly such 
 information would often lead to further inquiries, by 
 which losses previously unknown would come to light. 
 
 460. Disputes with respect to salvage arising within the 
 boundaries of the Cinque Ports shall be determined in the manner 
 in which the same have hitherto been determined ; but whenever 
 any dispute arises elsewhere in the United Kingdom between the 
 owners of any such ship, boat, cargo, apparel, or wreck as afore- 
 said, and the salvors, as to the amount of salvage, and the parties 
 to the dispute cannot agree as to the settlement thereof by arbitra- 
 tion or otherwise, 
 
 Then if the sum claimed does not exceed two hundred 
 pounds, 
 
 Such dispute shall be referred to the arbitration of any two 
 justices of the peace resident as follows ; (that is to say) : 
 
 In case of wreck, resident at or near the place where such wreck 
 is found : 
 
 In case of services rendered to any ship or boat, or to the 
 persons, cargo, or apparel belonging thereto, resident at or near 
 the place where such ship or boat is lying, or at or near the first 
 port or place in the United Kingdom into which such ship or boat 
 is brought after the occurrence of the accident by reason whereof 
 the claim to salvage arises : 
 
 But if the sum claimed exceeds two hundred pounds, 
 
 Such dispute may, with the consent of the parties, be referred 
 to the arbitration of such justices as aforesaid, but if they do not 
 consent, shall in Ewjliivd be decided by the High Court of Admi- 
 ralty r)f E'ikjJiiikI, ill lirhiiifl Iiy the lligli Court of Admiralty of
 
 MERCHANT SIIIPPIXG ACT, 1854. 503 
 
 Ireland^ and in Scothtiid by tho CiHirt of Session ; subject to this 
 proviso, tliat if the claimants in such dispute do not recover in 
 such Court of Admiralty or Court of Session a gi'eater sum than 
 two hundred pounds, they shall not, unless the court certifies that 
 the case is a fit one to be tried in a superior court, recover any 
 costs, charges, or expenses incurred by them in the prosecution of 
 their claim : 
 
 And every dispute with respect to salvage may be heard and 
 adjudicated upon on the application cither of tlie sah^or or of the 
 Owner of the property salved, or of their respective agents. 
 
 IGI. Whenever, in pursuance of this Act, any dispute as to 
 salvage is referred to the arbitration of two justices, they may 
 either themselves determine the same, with power to call to their 
 assistance any person conversant with maritime affairs as assessor, 
 or they may, if a difference oi' opinion arises between them, or 
 without such difference, if they think fit, appoint some person 
 conversant with maritime affairs as umpire to decide the point in 
 dispute ; and such justices or their umpire shall make an award as 
 to the amount of salvage payable within the following times; that 
 is to say, the said justices within forty-eight hours after such dispute 
 has been referred to them, and the said umpire within forty-eight 
 hours after his appointment, with power nevertheless for such 
 justices or umpire by writing under their or his hands or hand to 
 extend the time within which they and he are hereby respectively 
 directed to make their or his award.' 
 
 These clauses are undoubtedly among the most im- 
 portant of the whole Act; and althougli framed with 
 the best possible intention to avoid litigation, have proved 
 the most vexatious, through the interpretation oiven to 
 them. 
 
 The working of the first clause is threefold, viz. : 
 
 a. That the jurisdiction of the ' Connnissioners 
 of Salvage ' for the Cinqlie Ports, as regulated by 
 
 1 The summary jurisdiction in small salvage cases is extended by 25 & 26 
 Vict. c. m, sec. 49. (See p. 607.) 
 
 Q Q
 
 594 MARITIME LEGISLATION. 
 
 the 1 & 2 George IV. cap. 126, remains in full 
 
 force ; 
 
 b. That elsewhere in Great Britain, claims not 
 exceedino- 200/. shall be referred to the arbitration 
 of any two Justices of the Peace ; 
 
 c. That claims exceeding 200/. shall be decided 
 by the proper Maritime Court, with the proviso — if 
 claimants do not recover a greater sum than 200/. 
 they shall not recover costs unless certified by the 
 Court. 
 
 Now what has been the practical result of these enact- 
 ments ? 
 
 ad a. With respect to the Cinque Ports Commissioners, 
 that their decisions (especially at Eamsgate and Deal) 
 have been so partial to the fishermen that nobody but an 
 innocent foreigner, who is not cautioned as to the risk he 
 runs by allowing a matter to be referred to them, will 
 ever submit to their arbitration. 
 
 ad h. The same objection is made to the decisions 
 of two Justices of the Peace, who are in general so in- 
 timately connected with the interests of their county, 
 and frequently so imperfectly acquainted with matters 
 brought before them, that their awards are hardly ever 
 satisfactory. 
 
 ad c. The praise which the late venerable Judge of 
 the Admiralty Court ^ has frequently from the Bench 
 bestowed upon the fishermen, and the positive disinclina- 
 tion which he has generally evinced to refuse certifying 
 the claimant's costs even in the most flagrant cases (I may 
 only refer to the case of the ' Adolph Michels,' where costs 
 were certified with an award of only 50/.), have made it 
 a usual practice for salvors' agents (their solicitors or 
 proctors) to institute, without any alk'nq)ts at previous 
 
 ' ] >r. Lusliin;'l()ii.
 
 MERCHANT RIIIPPIXG ACT, l^o4. 595 
 
 SGttlement, Aolmiralty proceedings ; for, as they can reckon 
 with comparative certainty upon getting their costs what- 
 ever may be the award, tliey will only consent to a com- 
 promise out of court when, from fear of the heavy ex- 
 penses, an amount quite out of proportion to the value of 
 the services is offered. 
 
 Such vexatious and very expensive proceedings can 
 only be avoided by positively enacting that noljody shall 
 obtain costs in court who does not receive a judgment 
 for at least 200/. ; and further by doing away with all 
 arbitrations by Commissioners and Justices of the Peace, 
 appointing in their stead the Stipendiary Magistrates and 
 County Court Judges, two Elder ]3retliren of the Trinity 
 House to be called in as Nautical Assessors at the request 
 of either party. 
 
 These would be cheap and eminently efficient Tribunals, 
 which would very soon convince everybody abroad that 
 our Legislature will see justice done to ever^^body coming 
 to our shores. 
 
 I may mention that the reason why the Commissioners, 
 &c., have given so little satisfaction in deciding salvage 
 differences, is simply that in the majority of cases each 
 Commissioner takes up the position of advocate of the 
 side by which he is appointed, or rather selected, and after 
 a long delay, they agree rather to divide the difference 
 between them than to submit the case to an umpire ; 
 therefore, whenever the salvors' agent is sufHciently versed 
 in the mode of proceeding, he makes his original demand 
 outrageously exorbitant, and in the end his clients are 
 proportionate gainers. 
 
 This unfortunate mode of compromise has been 
 found so convenient for arbitrators, that I, who about 
 ten years ago was one of their strenuous supporters, since 
 this system has come into almost general practice, have 
 
 Q Q 2
 
 590 MARITIME LEGISLATION. 
 
 now, in tlie interests of my clients, peremptofily refused 
 to have anything whatever to do with any kind of arbitra- 
 tion. 
 
 I consider that I am the more justified in expressing 
 my candid opinion on this question as I have, through 
 what my cUents often denominate too hberal awards, 
 settled a proportionately large number of salvage cases 
 out of court, and have usually succeeded in convincing 
 those claimants v>'ho were not satisfied and preferred 
 the decision of the London or Dublin Admiralty Judges, 
 that only in very rare cases they obtained a larger salvage 
 than I had offered. 
 
 462. There shall be paid to every assessor andumpire who may 
 be so appointed as aforesaid in respect of his services, such sum 
 not exceeding five pounds as the Board of Trade may from time to 
 time direct ; and all the costs of sucli arbitration, including any 
 such payments as aforesaid, shall be paid by the parties to the 
 dispute, in such manner and in such shares and proportions as the 
 said justices or as the said umpire may direct by their or his 
 award. 
 
 The 'I'riuity Masters could not be expected to travel 
 for anytliiug like the auiount here fixed ; and really no 
 suitor will object to a reasonable charge if only justice 
 can be obtained. 
 
 4GG. Whenever the aggregate amount of salvage payable in 
 respect of salvage services rendered in the United Kingdom has 
 been finally ascertained either by agreement or by the award of 
 such justices or their umpire, but a dispute arises as to the appor- 
 tionment thereof amongst several clainuints, then, if the amount 
 does not exceed two hundred pounds, it shall be lawful for the 
 ])arty lialjle to ])ay the amount so due to apply to the receiver of 
 Ihc. district f(jr liberty to pay the amount so ascertained to hiiu ; 
 :iiid ho shall, if lii^ thinks fit, receive the same accordingly, and 
 {/I ant II c'crtificatc under liis hand, statin<^^ iho fact of such payment
 
 MERCHANT SHIPPING ACT, 1854 C97 
 
 and the services in respect of wliich it is made ; and such certi- 
 ficate sliall 1)6 a full discharge and indemnit}^ to the person or 
 persons to whom it is given, and to their ship, boats, cargo, ap- 
 parel, and effects, against the claims of all persons whomsoever in 
 respect of the services therein mentioned ; but if the amount 
 exceeds two hundri'd pounds, it shall bi' apportioned in manner 
 hereinafter mentioned. 
 
 I woiihl suLTLiX'st to omit the wovda *• if he t' rinks fit' 
 in the ninth line of the clanse. I cannot see any reason 
 why snch a matter should be left to the lieccnver's dis- 
 cretion. 
 
 468, Whenever an}^ salvage is due to any person under this 
 Act, the receiver shall act as follows ; (that is to say), 
 
 (1) If the same is due in respect of services rendered in assist- 
 
 ing any ship or boat, or in saving the lives of persons 
 belonging to the same, or the cargo or apparel thereof, 
 He shall detain such ship or boat and the cargo and apparel be- 
 longing thereto until payment is made, or process has been issued 
 by some competent court for the detention of such ship, boat, cargo, 
 or apparel. 
 
 (2) If the same is due in respect of the saving of any wreck, 
 
 and such wreck is not sold as unclaimed in pursuance 
 of the provisions hereinafter contained. 
 
 He shall detain such wreck until payment is made, or process 
 has been issued in manner aforesaid ; 
 
 But it shall be lawful for the receiver, if at any time previously 
 to the issue of such process security is given to his satisfaction for 
 the amount of salvage due, to release from his custody any ship, 
 boat, cargo, apparel, or wreck so detained by him as aforesaid ; and 
 in cases where the claim for salvage exceeds two hundred pounds 
 it shall be lawful in England for the High Court of Admiralty of 
 England, in Ireland for the High Court of Admiralty in Ireland, 
 and in Scotland for the Court of Session, to determine any question 
 that may arise concerning the amount of the security to be given 
 or the sufficiency of the sureties ; and in all cases where bond or
 
 59d MAiail.ME LEGISLATION. 
 
 other security is given to the receiver for an amount exceeding two 
 hundred pounds, it shall be lawful for the salvor or the Owner of 
 the property salved, or their respective agents, to institute pro- 
 ceedings in such last-mentioned courts for the purpose of having 
 the questions arising between them adjudicated upon, and the 
 said courts may enforce payment of the said bond or other security 
 in the same manner as if bail had been given in the said courts. 
 
 In some of tlie outports it lias been made a frequent 
 practice immediately after am^ property brought in liable 
 to salvage has been placed in charge of the Eeceiver, and 
 without any further inquiry whether the parties to whom 
 such property belongs are willing or able to give sufficient 
 bail for any claim upon them, to telegraph at once to 
 London for an Admiralty Warrant, so as to bring the 
 matter within the jurisdiction of the Court. I think this 
 is a needless expense, which easily might be saved, as it 
 really cannot be pleaded that such a course is adopted for 
 better security, more particularly when, as in the majority 
 of cases, the property is in such a state that, whether 
 arrested or not, it is unable to leave the port. 
 
 It would be very easy to improve the Receiver's 
 machinery in order to avoid the taking out of a warrant, 
 as in almost all cases the Eeceiver actually comes forward 
 as the Agent of the Marshal of the Admiralty Court, and 
 as such takes charge of the property ; the result is that 
 a large sum is unnecessarily charged as possession fee, &c., 
 whereas all tliat claimants have a rio-ht to demand is 
 security for salvage, which, of course, ought never to be 
 denied. 
 
 400. Whenever any ship, boat, cargo, apparel, or wreck is 
 detained by any receiver for non-payment of any sums so due as 
 aforesaid, and the parties liable to pay the same are aware of such 
 dctciilioii. Ilidi. ill llic f'nllowiiig cases; (that is to say), 
 
 (1) 111 cases where llic atiiouut is not dis[)utt'd, and payment
 
 MERCHANT SIIIPPIXG ACT, 1854. 599 
 
 thereof is not made within twenty days after the same 
 has become due ; 
 (2) In cases where the amount is disputed, but no appeal lies 
 from the first tribunal to which the dispute is referred, 
 and payment thereof is not made within twenty days 
 after the decision of such first tribunal ; 
 ('■)) In cases where the amount is disputed, and an appeal lies 
 from the decision of the first tribunal to some other 
 tribunal, and payment thereof is not made within such 
 twenty days as last aforesaid, or such monition as herein- 
 before mentioned is not taken out witliin such twenty 
 days, or such other proceedings as are according to tho 
 practice of such other tribunal necessary for tho pro- 
 secution of an appeal are not instituted within such 
 twenty days ; 
 The receiver may forthwith sell such ship, boat, cargo, apparel, or 
 wreck, or a sufficient part thereof, and out of the proceeds of the 
 sale, after payment of all expenses thereof, defray all sums of money 
 due in respect of expenses, fees, and salvage, paying the surplus, 
 if any, to the Owners of the property sold, or other the parties 
 entitled to receive the same. 
 
 Here I would suggest to make it obligatory upon such 
 Eeceiver to issue public notice in the local and a central 
 paper of the date of sale. 
 
 472. If any dispute arises between the receiver and any such 
 admiral, vice-admiral, lord of any manor, or otlier person as afore- 
 said as to the validity of his title to wreck, or if divers persons 
 claim to be entitled to wreck found at the same place, the matter 
 in dispute may be decided by two justices in the same manner in 
 which disputes as to salvage coming within the jurisdiction of 
 justices are hereinbefore directed to be determined. 
 
 I imagine that no objection could be made to see the 
 authority of two Justices of the Peace superseded by that 
 of a Stipendiary Magistrate or a County Court Judge.
 
 GOO MARITIME LEGISLATION. 
 
 475. If no Owner establishes his claim to wreck found at any 
 place before the expiration of such period of a year as aforesaid, 
 and if no admiral, vice-admiral, lord of any manor, or person other 
 than Her Majesty, her heirs or successors, is proved to be entitled 
 to such ^vreck, the receiver shall forthwith sell the same, and after 
 payment of all expenses attending such sale, and deducting there- 
 from his fees, and all expenses (if any) incurred by him, and 
 paying to the salvors such amount of salvage as the Board of 
 Trade may in each case, or by any general rule, determine, pay 
 the same into the receipt of Her Majesty's Exchequer in such 
 manner as the Treasury may direct, and the same shall be carried 
 to and form part of the Consolidated Fund of the United Kingdom. 
 
 Public notice of intended sale ought to be required. 
 
 478. Every person who does any of the following acts ; (that 
 is to say), 
 
 (1) Wrongfully carries away or removes any part of any ship 
 
 or boat stranded, or in danger of being stranded, or 
 otherwise in distress on or near the shore of any sea or 
 tidal water, or any part of the cargo or apparel thereof, 
 or any wreck ; or, 
 
 (2) Endeavours in any way to impede or hinder the saving of 
 
 such ship, boat, cargo, apparel, or wreck ; or 
 (o) Secretes any wreck, or obliterates or defaces any marks 
 thereon ; 
 Shall, in addition to anj- other penalty or punishment he may be 
 subject to under this or any other Act or law, for each such 
 offence incur a penalty not exceeding fifty pounds ; and every 
 person, not being a receiver or a person hereinbefore authorised to 
 take the comiiuiiid in cases of ships being stranded or in distress, 
 or not acting under the orders of such receiver or person, who, 
 without the leave of the Master, endeavours to board any such 
 ship or boat as aforesaid, shall for each offence incur a penalty not 
 exceeding fifty pounds ; and it shall be lawful for the Master of 
 such ship or boat to repel by force any such person so attempting 
 to bo;ird the s;mie. 
 
 I lliiiik llic od'ciiccs licrciii dcscfilx'd oul'IiI to be
 
 ME^vCIIA^'T SIIIPriNG act, 1854. GOl 
 
 punished more severely tlian is here eiiacled ; tlie dilliculty 
 t)f })i-()viiio- them is so great, and the inclinalion to sliclt^'r 
 offenders ^vlio Iwive, according to the genei-al and cus- 
 tomary views among the iiihal)ilants of tlie coast, only 
 taken wliat if the wind had ])l()\vn in a dillerent direction 
 would have been irrecoverably lost, is so universal, that all 
 such offences must be punished with exemplary severity, 
 in order to bring the public mind in those localities to 
 comprehend the wrong Avhich is thercl)y connnitted. 
 
 Under this part of tlie Act the suggestion ought to be 
 made that it would be in the interest of public justice to 
 alter the present system of surveying damages to ships. 
 In Continental ports no master of a vessel can obtain a 
 certificate of survey which is of any legal use to him from 
 any other than a surveyor appointed by public authority, 
 sometimes judicial, sometimes mercantile, but always duly 
 sworn to act impartially to the best of his knowledge and 
 behef ; we, on the contrary, have fallen into so loose a 
 manner of transacting this sort of business that the most 
 serious irregularities have been the natural result. 
 
 According to what is called general custom, any 
 master of a ship, whether British or foreign (in case the 
 law of his country does not force the latter to apply to 
 his consular officer), is at liberty to appoint one or two 
 parties as surveyors, of whom he personally very rarely 
 knows anything, but who are reconnnended to him l)y his 
 agent or correspondent as suitable persons for the })urpose, 
 who too often do not consider themselves obliged to act 
 in the capacity of impartial surveyors but assume at once 
 the post of partisans, that is to say, they certify to the 
 correctness of anythin<^ that is desired, (piite inunatei-ial 
 whether truthful or not, if only a colour for their asser- 
 tion can be found. In fact, in some of our most fre-
 
 602 MARITIME LKGISLATION. 
 
 quented outports it is publicly asserted that tlie order to 
 survey a damaged vessel is looked upon in the same light 
 as the retaining fee of a barrister, and is considered to 
 oblige the surveyor to use his official position for the pro- 
 tection of the master of such vessel, without any due 
 consideration for the other interests at stake. How frauds 
 of all descriptions can, with impunity, be practised uj^on 
 shipowners and their underwriters, when an unprincipled 
 master of a ship combines to that effect with his agent, 
 or the clerks he employs, and finds no effectual resistance 
 on the part of the surveyors, may be readily conceived ; 
 and this state of things is the more dangerous as only in 
 very rare instances the underwriters are so efficiently and 
 promptly represented as to prevent by the means which 
 the law affords the serious consequences above described. 
 
 One of the methods sometimes available is the appoint- 
 ment of another set of surveyors to prove by a second 
 survey the irregularities in the first ; but it is not easy to 
 find in an}' place men independent enough to go directly 
 against the signed, sealed, and delivered opinions of their 
 townsmen, and if they were to be found much time Avould 
 be wasted and much useless expense incurred in order to 
 prove the fallacy of the first and the correctness of the 
 second survey. But what can be done when on the faith 
 of an erroneous, or even fraudulent survey, a vessel has 
 been sold and claims made which cannot, under the 
 circumstances stated, be disputed ? — a case which has not 
 unfrequently occurred. 
 
 It a^ipears to me that the only means of obviating all 
 these serious consequences is to declare that for the in- 
 terest of all concerned in the case of any damaged ship, 
 or cargo, no survey, valuation, or appraisement shall be 
 good ill law ore(|uity, for any jDurpose whatsoever, unless 
 made by one or two (as the case may be) competent
 
 MERCHANT SHIPPING ACT, 185 J. 003 
 
 surveyors appointed by the Eeceiver, and sworn by him in 
 the same way as appraisers are at present under the 50th 
 section of the Merchant Shipping Act Amendment Act, 
 1862 ; tliis woidd be ahogether in accordance with Con- 
 tinental custom, and woukl conduce to restore the general 
 confidence which recent transactions in our outports have 
 so greatly shaken. 
 
 The Eeceiver will take care that the surveyors he 
 appoints perform their duty efficientl}', and as public 
 officials it is to be hoped that their being bribed or tam- 
 pered with will be altogether out of the question.^ 
 
 Part IX. — LiahiUttj of Shipovners. 
 
 502. The Ninth Part of this Act shall apply to the whole of 
 Her Majesty's dominions. 
 
 This part of the Act, although distinctly stated to 
 apply ' to the whole of Her Majesty's dominions,' has been 
 unexpectedly extended in some cases to acts taking place 
 on the high seas, without the jurisdiction of this country 
 or any of her colonies, in which foreign ships have been 
 concerned. The extension gave rise, in the case of the 
 Belgian steamer ' Marie de Brabant,' to a very serious loss 
 to a large numbers of foreigners, as a perusal of the judg- 
 ments of the Admiralty Court and of the Judicial Committee 
 of the Privy Council will sliow.^ 
 
 The non-compliance with the fundamental rules of 
 acknowledged principles of international law is so sur- 
 
 ' It may be well to state here, that since the forcj^oing was An-itten, I 
 have — in the mterest of mj' clients — in all cases passing through nij- hands, 
 and before snrvej-s were held, caused a document to be executed, by which 
 the representatives of the assured and their underwriters respectively ap- 
 point each a surveyor, and these two surveyors nominate an umpire, by 
 whose final decision any differences between the two survejors are finally 
 settled. 
 
 - For correspondence on this matter, vide p. 513.
 
 604 MARITIME LEGISLATION. 
 
 prising that nothing short of a positive enactment tliat 
 this part of the Act was intended to be applied only to 
 British ships wherever they meet (of course their laws 
 always travel with them) or to foreign ships when within 
 the Ihnits of British jurisdiction (within three miles from 
 shore), can be ex23ected to alter this highly unsatisfactory 
 state of affairs. 
 
 Having submitted to the President of the Board of 
 Trade a memorial especially prepared for the purpose of 
 setting forth the grievances in this case, I may here refrain 
 from entering more minutely upon the subject. 
 
 507. AVbenever any such liability as aforesaid has been or is 
 alleged to have been incurred in respect of loss of Hfe or personal 
 injury, tlie Board of Trade may, in its discretion, after giving not 
 less than three days' notice by post or otherwise to the party to be 
 made defendant or defender, by warrant sealed with the seal of 
 such Board, or signed by one of its secretaries or assistant secre- 
 taries, require the sheriff having jurisdiction over any place in the 
 United Kingdom to summon a jury at a time and place to be 
 specified in such warrant for the purpose of determining the 
 following question ; (that is to say). 
 
 The number, names, and descriptions of all persons killed or 
 injured by reason of any wrongful act, neglect, or dc-fault ; 
 And upon the receipt of such warrant the sheriff shall summon a 
 jury of twenty-four indifferent persons, duly qualified to act as 
 common jurymen in the superior coui-ts, to meet at such time and 
 place as aforesaid. 
 
 Tti ihf* case above referred to of the ' Marie de Brabant,' 
 several lives were lost in consequence of the neglect of 
 the officer in diai-ge of the Liverjjool steamer ' Amalia,' 
 and coiiiix-iisatioii was in due course obtained ; but 1 have 
 jic\cf licai'd lliat ])rocc('diiigs wci'c taken in oi'der to sus- 
 iK-nd ()!• cancel the cerlilicale of such ollicer ; ought it not
 
 MERCHANT STIirriNG ACT, 1854. G05 
 
 to be the duty of the Judge of tlie Admh-alty Court to in- 
 form the Board of Trade of such cases ? 
 
 Part X. — Lcrinl Vrocedure. 
 
 51 9. Any stipendiary magistrate shall liave full power to do 
 alone whatever two justices of the peace are by this Act authorised 
 to do. 
 
 Here the authorisation of the County Court Judges or 
 Sheriffs, in heu of the two Justices of the Peace, would 
 have to l)e recapitulated. 
 
 527. Whenever any injury has, in any part of the world, been 
 caused to any property belonging to Her Majesty, or to any of Her 
 ^Majesty's subjects by any foreign shiji, if any time thereafter such 
 ship is found in any port or river of the United Kingdom, or within 
 three miles of the coast thereof, it shall be lawful for the Judge of 
 any Court of Record in the United Kingdom, or for the Judge of 
 the High Court of Admiralty, or in Scotland the Court of Session, 
 or the sheriff of the county within whose jurisdiction such ship may 
 be, upon its being shown to him by any person applying summarily 
 that such injury was probably caused by the misconduct or want 
 of skill of the Master or mariners of such ship, to issue an order 
 directed to any officer of Customs or other officer named by such 
 Judge, requiring him to detain such ship until such time as the 
 Owner, Master, or Consignee thereof has made satisfaction in respect 
 of such injury, or has given security, to be approved by the Judge 
 to abide the event of any action, suit, or other legal proceeding that 
 may be institi^ted in respect of such injury, and to pay all costs and 
 damages that may be awarded thereon ; and any officer of Customs 
 or other officer to whom such order is directed, shall detain such 
 ship accordingly. 
 
 My observations upon clause 4GS will apply equally 
 to this clause. 
 
 529. In any action, suit, or other proceeding in relation to such 
 injury, the person so giving security as aforesaid shall be made de-
 
 606 MARITIME LEGISLATION. 
 
 fend.-nt or defender, and shall be stated to be the Owner of the ship 
 that has occasioned such damage ; and the production of the order 
 of the Judge made in relation to such security shall be conclusive 
 evidence of the liability of such defendant or defender to such action, 
 suit, or other proceeding. 
 
 In spite of the clear directions contained in this clause, 
 the Judge of the Admiralty Court has persistently refused 
 to recognise underwriters either as plaintiffs or defendants, 
 although they are frequentty the only parties who have 
 ultimately anything to gain or lose by the proceedings ; 
 this must naturally give rise to very awkward complica- 
 tions. 
 
 Apparently unimportant matters of this description 
 have often given rise to irregularities which could not 
 easily be surmounted ; let everybody who has an interest 
 in a case have a locus standi, and not be obliged to assume 
 another person's capacity and sail under false colours. 
 
 Part XI. — Miscellaneous. 
 
 547. The Legislative authority of any British Possession shall 
 have power, by any Act or Ordinance, confirmed by Her Majesty in 
 Council, to repeal, wholly or in part, any provisions of this Act re- 
 lating to ships registered in such Possession ; but no such Act or 
 Ordinance shall take effect until such approval has been proclaimed 
 in such Possession, or until such time thereafter as may be fixed by 
 such Act or Ordinance for the purpose. 
 
 If one part of the Act has been made law to the 
 colonies, why not the whole ? 
 
 Schedule Form B (see Section 38). After perusal of 
 the declaration of ownership I am astonished that the 
 case related by me above ^ could have occurred, but so 
 it is. 
 
 ' ^'illo ante, p. 00.'3.
 
 AMENDMENT ACTS, 1855, 18G2. 607 
 
 18 & 19 Vict. cap. 91. 
 The Merchant ShqiiniKj Ad Amendment Ad, 1855. 
 
 19. Whenever any articles belonging to or forming part of any 
 Foreign Ship which has been wrecked on or near the coasts of the 
 United Kingdom, or belonging to or forming part of the cargo 
 thereof, are found on or near such coasts, or are brought into any 
 port in the United Kingdom, the Consul-General of the country to 
 which such ship, or, in the case of cargo, to which the Owners of 
 such cargo, may have belonged, or any Consular Officer of such 
 country authorised in that behalf by any treaty or agreement with 
 such country, shall, in tlie absence of the Owner of such ship or 
 articles, and of the Master or other Agent of the Owner, be deemed 
 to be the Agent of the Owner, so far as relates to the custody and 
 disposal of such articles. 
 
 I would suggest adding to this section a stipulation, 
 that whenever the representative of any underwriter 
 shall be able, to the satisfaction of the Board of Trade or 
 the Eeceiver, as the case may be, to prove an interest to 
 the wrecked property, such underwriter's representative 
 shall be entitled to the custody and disposal of such 
 articles. 
 
 The present mode of effecting insurances, not as for- 
 merly at the place where the respective owners of ship or 
 cargo reside, but frequently at very different places, would 
 cause considerable annoj^ances, delays, and unnecessary 
 expense, if this section remained without the proposed 
 addition. 
 
 25 & 26 Vict. cap. 63. 
 The Merchant Shij^ping Act Amendment Act, 1862. 
 
 49. The provisions contained in the Eighth Part of the Prin- 
 cipal Act for giving summary jurisdiction to two Justices in Salvage
 
 608 MARITIME LEGISLATION. 
 
 cases, and for presenting unnecessary Appeals and Litigation m 
 such cases, shall be amended as follows ; (that is to say), 
 
 (1) Such provision shall extend to all cases in which the value of 
 
 the property saved does not exceed one thousand pounds, 
 as well as to the cases provided for by th rincipal 
 Act: 
 
 (2) Such provisions shall be held to apply whether the Salvage 
 
 Service has been* rendered within the limits of the 
 United Kingdom or not : 
 
 (3) It shall be lawful for one of Her Majesty's Principal Secre- 
 
 taries of State, or in Ireland for the Lord Lieutenant 
 or other Chief Governor or Governors, to appoint out 
 of the Justices for any borough or county a rota of 
 Justices by whom jurisdiction in salvage cases shall be 
 exercised : 
 
 (4) When no such rota is appointed, it shall be lawful for the 
 
 salvors, by writing addressed to the Justice's Clerk, to 
 name one Justice, and for the Owner of the property 
 saved in like manner to name the other : 
 
 (5) If either party fails to name a Justice within a reasonable 
 
 time, the case may be tried by two or more Justices at 
 Petty Sessions : 
 (G) It shall be competent for any Stipendiary Magistrate, and 
 also in EiKjhvud for any County Court Judge, in Scotland 
 for the Sheriff or Sheriff substitute of any county, and in 
 Ireland for the Recorder of any borough in which there 
 is a Recorder, or for the Chairman of Quarter Sessions 
 in any county, to exercise the same jurisdiction in Sal- 
 vaofe cases as is ofiven to two Justices ; 
 
 (7) It shall be lawful for one of Her Majesty's Principal Secre- 
 
 taries of State to determine a scale of costs to be 
 awarded in Salvage cases by any such Justices or Court 
 as aforesaid : 
 
 (8) All the provisions of the I'rincipal Act relating to summary 
 
 ])rocecdings in Salvage cases, and to the prevention of 
 unnecessary appeals in sucli cases, shall, except so far 
 as the same are altei-ed by tliis Act, extend and apply
 
 AMENDMENT ACT, 1802. COO 
 
 to all such proceedings, whether under the Principal 
 Act or this Act, or both of such Acts. 
 
 I have in my remarks on the Principal Act entered fully 
 into the necessity of substituting the County Court Judges 
 for the two Justices of the Peace, with respect to the ad- 
 judication of salvage cases, and here refer to the arguments 
 there used. 
 
 suh. 4. This clause perpetuates the arbitration system 
 which has proved so fallacious, and the consequences of 
 which I have above so fully described. 
 
 sub. 6. My suggestions respecting the County Court 
 Judges being here adopted, I see no reason to doubt that 
 the plan, as a whole, will be carried out without very 
 serious opposition. 
 
 50. Whenever any Salvage question arises the Receiver of 
 Wreck for the district may, upon application from either of the 
 parties, appoint a Valuer to value the property in respect of which 
 the Salvage claim is made, and shall, when the valuation has been 
 returned to him, give a copy of the valuation to both parties ; and 
 any copy of such valuation, purporting to be signed by the Valuer, 
 and to be attested by the receiver, shall be received in evidence in 
 any subsequent proceeding ; and there shall be paid in respect of 
 such valuation, by the party applying for the same, such fee as 
 the Board of Trade may direct. 
 
 I have myself tried the working of this clause, and its 
 efficiency has principally induced me to propose to trive 
 to the Eeceiver a more extended authority in all matters 
 of average. 
 
 54. The Owners of any ship, whether British or Foreign, shall 
 not, in cases where all or any of the following events occur without 
 their actual fault or privity ; (that is to say), 
 
 (1) Where any loss of life or personal injury is caused to any 
 person being carried in such ship ; 
 
 R R
 
 610 MARITIME LEGISLATION. 
 
 (2) Where any damage or loss is caused to any goods, mer- 
 
 etandise, or otlier things whatsoever on hoard any such 
 
 sliip ; 
 
 (o) Where any loss of life or personal injury is by reason of 
 
 the improper navigation of such ship as aforesaid caused 
 
 to any person carried in any other ship or boat ; 
 
 (4) Where any loss or damage is by reason of the improper 
 
 navigation of such ship as aforesaid caused to any other 
 
 ship or boat, or to any goods, merchandise, or other 
 
 things whatsoever on board any other ship or boat ; 
 
 be answerable in damag-es in respect of loss of life or personal 
 
 injury, either alone or together with loss or damage to ships, boats, 
 
 goods, merchandise, or other thing's, to an aggregate amount 
 
 exceeding fifteen pounds for each ton of their ship's tonnage ; nor 
 
 in respect of loss or damage to ships, goods, merchandise, or. other 
 
 things, whether there be in addition loss of life or personal injury 
 
 or not, to an aggregate amount exceeding eight pounds for each 
 
 ton of the ship's tonnage ; such tonnage to be the registered 
 
 tonnage in the case of sailing ships, and in the case of steam ships 
 
 the gross tonnage without deduction on account of engine-room : 
 
 In the case of any foreign ship which has been or can be 
 measured according to Britislt law, the tonnage as ascertained by 
 such measurement shall, for the purposes of this section, be deemed 
 to be the tonnage of such ship : 
 
 In the case of any foreign ship which has not been and cannot 
 Be measured under Britislt law, the Surveyor-General of tonnage 
 in the United Kingdom, and the Chief Measuring Officer in any 
 British possession abroad, shall, on receiving from or by direction 
 of the Court hearing the case such evidence concerning the 
 dimensions of the ship as it may be found practicable to furnish, 
 give a certificate under his hand, stating what would in his opinion 
 liave been the tonnage of such ship if she had been duly measured 
 according to Britixh ];i\v, and the tonnage so stated in such 
 certificate shall, for the purposes of this section, be deemed to be 
 llic lonuiigc of such slii]). 
 
 'i'his clniisc r<'])l;ircs rlnnsc 5(14 of llic ri-iiicipal Art,
 
 LIMITED LIABILITY 
 
 and has l)ceii so interpreted ])y our Courts as to give rise 
 to tlie most unjust and unheard-of results. 
 
 In the hrst phice, it does not deal equal justice to rich 
 and poor ; and secondly, it li;is introduced into this country 
 a state of thinus utterly at variance with sound principles 
 of law. 
 
 It is (|uite clear that, when tlie ^lerchant Shipping Act 
 of 1854 engaged the attention of the Legislature, the ne- 
 cessity of abrogating the system of unlimited liabiUty was 
 strongly urged upon it. By that system the whole pro- 
 perty of a shipowner, whether on sea or land, was liable 
 to make good any damage, however great, which might 
 be occasioned by any vessel belonging to him, and this, 
 although he might have taken every precaution which the 
 nature of the case would possibly permit. 
 
 Such a state of things, of course, deterred responsible 
 persons from investing their money in shipping property, 
 and, by throwing the carrying trade into the hands of a 
 class who were without adequate means, gave rise to 
 numerous evils, which have been often described and need 
 not be here repeated. 
 
 The propriety of admitting the principle of limited 
 liability into maritime matters had already been partly 
 conceded by 7 George II. cap. 15, and by subsequent Acts, 
 and the system now obtained its natural and legitimate 
 extension in the 50'ith clause of the Act which was 
 the result of mature deliberation, enactinf>- that no owner 
 should be answerable for losses occasioned without his 
 actual fault or privity beyond the value of his ship and 
 the current freight. This new system was qualified, it 
 must be admitted, in cases where liability sliould he 
 incurred with respect to loss of life or personal injur\- to 
 any passenger, by the stipulation that the value in such 
 cases should not 1)e taken to be less than 15/. pov reo-ister 
 
 It H
 
 612 MARITIME LEGISLATION. 
 
 ton. The reason for tliis qualification is not apparent, 
 unless it were meant to discourage the taking of pas- 
 sengers at all on board ships of inferior value, in which 
 case it ought to have been made to apply only to liability 
 incurred by the ship on board of which the passengers were. 
 As far as my knowledge goes, however, this stipulation 
 never had any actual influence upon the decisions of our 
 Courts. 
 
 Such being the law, as laid down by Parliament in 
 1854, it soon became apparent that the natural increase 
 in the mercantile navies of the world, together with the 
 general introduction of steam as a propelling power, 
 would produce a great increase in the number of collision 
 cases, and when the Board of Trade had become aware 
 of some defects in the Merchant Shipping Act, and was 
 known to be contemplating the introduction of what 
 afterwards became the Amendment Act of 1862, some of 
 the owners interested in the large steamers, navigating 
 the most frequented parts of the Atlantic, and conse- 
 quently running the greatest risk cf being made liable 
 as above pointed out, really succeeded in prevailing upon 
 the late Government to induce the Legislature to limit the 
 liability of shipowners in the way which now constitutes 
 the law of the land. 
 
 A careful perusal of ' Hansard ' will show the wonder- 
 ful arguuicntation used on both sides of the House when 
 this question was under consideration, and that on May 
 26, 1862, the then First Lord of the Treasury (Viscount 
 Palmerstoii) used the following memorable expressions, 
 viz. : — 
 
 'He could not understand the great tenderness 
 wliicli hon. geiilleiucn seemed to feel for steamships 
 causing damage lo oilier ships Avhich Iheymet. Jf he 
 ircrr not (ifj]<'hilly connected irilh hi.s r/(//// lion, friend {{\\o.
 
 LIMU'ED LIABILITY. 013 
 
 President of tlie Board of Trade), but were exercising 
 an independent judgment on his proposal, lie should 
 say, that that proposal failed in this, that the true 
 principle which ought to be applied to damage done 
 by steam vessels or any other instrument conducted 
 by man, must be the value of the damage done, not 
 the quality or the value of the instrument causing it. 
 If there was any fault in the proposal of his Eight 
 hon. friend it was that it went too far in mitigation 
 of the liability of steamships for damage, and he 
 lioped that the House would not do anything so 
 manifestly unjust as still further to limit their respon- 
 sibility.' 
 There cannot be any doubt that a statesman of Lord 
 Palmerston's character would not have uttered those 
 words of complete and entire disapprobation of a measure 
 introduced and strenuously supported in the House by one 
 of his colleagues, had he not been impressed by the strong 
 conviction that great wrong was about to be done, and 
 that if, for j)arty reasons, he were obliged to acquiesce 
 in it, he would at least relieve his conscience by a public 
 declaration, that nothing but his official connection could 
 have induced limi to do so. 
 
 The Merchant Shipping Act Amendment Act of 1862 
 having become law, we must now refer to the tenor of 
 subsequent decisions, to see the influence which it has 
 exercised upon the administration of justice in this 
 country. 
 
 In the first place, the opening words of the Limited 
 Liability Clause (Sect. 54, ' the owner of any ship, whether 
 British or Foreign, shall not,' &c.) have been held by the 
 Courts to apply to ships of all nations, in all places, whether 
 within British jurisdiction or without. As the most apt 
 illustration of the result of such decisions, I would refer
 
 014 .MARITIME LEGISLATION. 
 
 to a separate memorial wliich I have laid l)efore the Board 
 of Trade,^ on the subject of the ' Marie de Brabant,' a 
 steamer belonoing to Belgian owners, which was run down 
 and sunk by the British steamer ' Amalia,' of Liverj^ool. 
 Tlie Belgian vessel and cargo were of the value of 38,oT7Z. 
 OS. lOcI., and this amount would have been completely 
 recovered from the wrong-doing 'Amalia,' the value of 
 which vessel was admitted to exceed the loss she had 
 occasioned, if by any subsequent accident she had been 
 obliged to enter any other than a British port, but, reach- 
 ing Liverpool instead, the parties interested in the ' Marie 
 de Brabant ' were only able to recover 14,600/., and in fact 
 lost 23,777/. 05. lOd. bv being^ oblisred to resort to our 
 Courts for their remedy. 
 
 The results of this decision must not be lost sight of. 
 The principles of International Law, which have been 
 adhered to in the most sacred manner l)y all our most 
 eminent Judges, are now for the first time abandoned, and 
 in their stead we have a sort of lex fori., or an assertion by 
 our Courts that a certain fixed measure of relief is all that 
 we can give, and that Foreigners, if they come to our 
 (^ourts, either as ])laintifrs or defendants, must be satisfied 
 witli the same limited lial)ility tliat would be held to apply 
 ill ihe case of one of our own ships; and this while a 
 I »iiiish shipowner, if plainlill' in the foreign court, would 
 obtain full and complete redress ! And there may result 
 from such decisions far worse confusion than has been at 
 ])resent foreseen. For. supposing that a Belgian plaintiiT, 
 wlio ]i,i(l been d('pi-i\'('d of his natui'al international rights 
 by tlie decision of one of our Courts, in accordance with 
 iliis Ihitisli mii!iici])al legislation, were subsequently to 
 discover tli(; wrong-doing ]h'itish shi]) in a Px'lgiau ])()rt; 
 \vli;i1 should ])i-(.'veii< liim IVoiii (letainiiig her there, and
 
 LIMITI'D LIABILITY. OIo 
 
 ol)tainin<r in his own native courts such further redress as 
 he had failed in olitaining liere ? If such a course is once 
 taken in a foreign country, and it is not at all improbable 
 that it may be, Ave shall have some of our ships unable to 
 go to France, some to ]3eliiium, and so on ; the result 
 being endless confusion and proportionate injury to our 
 trade. 
 
 And how has this anomalous and unjustifiable legisla- 
 tion become part of our statute-book ? A glance at the 
 first drafts of the Amendment Act, as laid before Parlia- 
 ment for discussion, will show that these words, ' whether 
 British or Foreign,' had no place in them ; in the debates 
 they were never referred to ; the House evidently never once 
 remarked that four words had subsequently slipped in wliicli 
 would be held to bind our Courts to disregard the most 
 obvious duties of international comity, or surely some 
 expression of regret would have been called forth in the 
 House l)y our departure from the principles which have 
 made our nation famous ; on the contrary, the alteration 
 made without any authority by the drawer of the Bill, 
 during its passage through the House, was altogether 
 overlooked, and I will do no more than give the words of 
 a late very eminent Judge, the Lord Justice Knight-Bruce, 
 who thus expressed himself on the point during the 
 hearing of the ' Marie de Brabant ' appeal above referred 
 
 to : — 
 
 ' I do not know why these very extensive Acts of 
 
 Parliament should have left such an obvious question 
 open to argument. I cannot quite understand it. 
 The questions are so obvious, you know ; and a 
 great many people do know that there are other 
 people in the world who have ships besides ourselves.' 
 In the second place, legislation, in the direction of 
 limited liability, has been by the Amendment Act dis-
 
 016 ^JARITLME LEGISLATION. 
 
 tortecl from its original intention and converted into a 
 powerful engine of oppression and injustice. There can 
 be only one opinion as to what the limitation of a ship- 
 owner's liabihty was originally intended to imply, viz. : 
 that any man investing, say, 100/. in the purchase of a 
 64th share of a ship, should have the certitude that he 
 could not be made to forfeit his share, and a further 
 amount besides. In other words, the owners of any ship 
 inflicting damage were to be allowed to say, ' There is our 
 ship, we give her up to you, and, as far as her value 
 goes, you may pay yourself for any wrong she has done.' 
 
 This is the common-sense view of the proposition, and 
 this is what other countries have always acted upon. 
 Our Courts, however, have not held to this interpretation, 
 but have actually made the owners of a ship, which has 
 l)een found to blame for a collision, liable to make good 
 8/. per ton on her register, when their vessel itself may 
 have been rendered almost valueless or even totally de- 
 stroyed by the same casualty. And what can be more 
 monstrous than for the law to say that a vessel which has 
 originally cost her owners 41. per ton (and at this rate 
 very excellent vessels may now be bought in open market) 
 which after collision with another vessel may reach a 
 liritisli port in such a state as to be worth only 11. per 
 ton, sliall nevertheless be held liable in damages to the 
 extent of 8/. per ton or even 15/., in case of loss of life, 
 while it is perfectly clear that, if the vessel is a foreigner, 
 more than her actual market value, as she reaches port, 
 cannot by any j^ossibility be got out of her, nor ought to 
 be, according to the general law of the sea.^ 
 
 In fact, the creation of this anomalous legislation 
 
 ' 'i'lic records of the Registry of the High Court of Admiralty will show 
 niiiuorouH ciiKos illuHtrativeof the above remarks. It is sulhcicnt for myjmr- 
 poHC to mention two, viz. tlie ' Earl of Leicester,' whose owners paid for damages
 
 LIMITi:!) LIAIULITY. 617 
 
 virtually establishes a monopoly for large and valuable 
 ships to the undue prejudice of small and old ones. In 
 the same debate, to which I have already referred, the 
 then President of the Board of Trade is reported to have 
 
 said : — 
 
 ' There might, indeed, be a little increase of lia- 
 bility under the present scheme, as far as the owners 
 of worthless ships were concerned, but that was quite 
 right, because an old ship, or one of small value, 
 might do great damage, and might belong to a wealthy 
 owner or company ; ' 
 
 but every practical man would have told the right hon. 
 gentleman that there are many steps between the new Al 
 ship and that worthless craft which he confesses might 
 probably suffer somewhat under the effects of the clauses 
 supported by him. And I am at a loss to conceive how 
 it can be thought just and equitable to make a poor man 
 who may have invested all his savings in the purchase of 
 a ship, worth Al. a ton, liable to a loss equal to double the 
 amount of his investment, while you, in the same breath, 
 exonerate the rich owner of a very valuable craft from 
 perhaps three-fourths of the amount which, under the 
 General Maritime Law, he might be made liable for, al- 
 though the latter really could afford to sacrifice more in 
 pro2:)ortion than the former ; and although it is not pre- 
 tended that the liability in either case bears any proportion 
 to the amount of injury inflicted. 
 
 Having now, as I hope, said enough to demonstrate 
 clearly the injustice which is occasioned by the assump- 
 tion of a fixed arbitrary value for property which is sulj- 
 ject to constant fluctuation, and giving it strongly as my 
 
 arising out of a collision considerably more than her vahic ; the ' Mindora,' 
 whose owners paid the statutory amount of 8/. per tt)n, although the vessel 
 Jierself was at the bottom of the sea.
 
 G18 MAIIITLME LECUSLATION. 
 
 opinion that the late Government, unadvisedly yielding to 
 the influence brought to bear nj^on it, princijDally by the 
 Liverpool Chamber of Commerce, gave up, in the 504tli 
 clause of the Merchant Shipping Act, a principle against 
 which no reasonable complaint could be urged, I would 
 in conclusion point out what is likely to he the result of 
 this unfair tenderness for large valuable steam-vessels. 
 
 Every one must have observed that in the majority of 
 the collision cases now occurring one at least of the vessels 
 is a steamer. 
 
 It will also not be denied that the general impression 
 with regard to collisions is, that a vessel going at full speed 
 is not so likely to receive serious damage herself as she is 
 to inflict injury upon another. 
 
 Xow, bearing this in mind, and remembering that the 
 value of a first-class steamer will often exceed 30^. per 
 ton, what would be the position of the master of such a 
 vessel of, say, 1,000 tons register, in view of an inevitable 
 collision ? By slackening speed he might receive the blow 
 of the approaching ship, and possibly lose his o«ii, or in 
 figures 30,000/. ; if he increases his speed he will probably 
 save his own ship though he will certainly sink the other, 
 and if he does his owner's loss cannot exceed 8,000/.' 
 Surely no words could too strongly condemn legislation 
 which could produce such effects as are here only hinted at. 
 
 Long after these observations -yvere made, and only 
 just before the issue of this third edition, another proof 
 lias couie to my knowledge of the injustice to which this 
 legislation leads. 
 
 The liritish steamer 'Apollo,' belonging to Messrs. 
 Tlios. Wilson, Sons, & Co. of Hull, came into collision with 
 and was sunk by the French vessel ' Precurseur.' The 
 (nni-l of A])pcal at Kcinics on December 21, 1887, held 
 llu; ()\\ iicis of the ' Apollo " liable for the damages caused to
 
 LIMITED LIABILITY. (ill) 
 
 tlie ' rivcurscur' and the cargo on Ijoard thereof, to the 
 extent of 8/. per register ton. Tliis Court of Appeal, in 
 confirming the iudfnnent of the Court of first histance at 
 J3rest, gave its reasons, whicli are very instructive. They 
 are to the effect that no foreigner can obtain from a French 
 tribunal the advantages of French huv (liere tlie freedom 
 from habihty by the abandonment of the vessel) if the 
 tribunal of tlie foreigner does not grant to the French 
 subject the same advantage, or real reciprocity. As the 
 French subject would by the English Courts under identical 
 circumstances be held liable for 8/. per register ton, the 
 Court of Appeal at Eennes would not absolve Messrs. 
 Wilson & Co. from liability on any other tenns than 
 would Ije jrranted by the En£flisli Courts. 
 
 French jurisprudence condemns, therefore, in matters 
 of General Maritime Law, the lex fori in similar terms to 
 those used by Lord Stowell and many of our most celebrated 
 and enliditened Judc^es before the decision in the case of 
 the ' Marie de Brabant ' and the ' Amalia.' 
 
 34 & 35 Vict. cap. 110. 
 The Merchant 8hippinrj Act, 1871. 
 
 35 & 36 Vict. cap. 73. 
 
 Tlia Merchant Shij^^^ing Act, 1872. 
 
 36 & 37 Vict. cap. 85. 
 
 Tlh- Me reliant Shipiying Act, 1873. 
 
 39 & 40 Vict. cap. 80. 
 The Merchant Shipping Act, 1876. 
 
 43 & 44 \'ICT. CAP. 16. 
 The Merchant iSeavien {l\iijment af Wages and liating) Act, 1880. 
 
 43&41 Vkt. CAP. 18. 
 The Merchant Shipping Act Amendment Act, 1880. 
 
 13 & 44 ViCT. CAP. 22. 
 
 The Merchant Shipping (Fee and Eapensex) Act, 1880.
 
 620 MARITIME LEGISLATION. 
 
 43 & 44 Vict. cap. 43. 
 The Merchant Shipping {Carnage of Grain) Ad, 1880. 
 45 & 46 Vict. cap. 55. 
 The Merchant Shipping {Expenses) Ad, 1882. 
 
 45 & 46 Vict. cap. 76. 
 The Merchant Shipping {Colonial Inquiries) Ad, 1882. 
 
 Since tlie issue of the second edition of this pubhca- 
 tion, the foregoing Acts have been passed by our Legis- 
 lature on the subjects here under consideration, but having 
 carefully considered the matters treated therein, they seem 
 to me to require no further observations.
 
 621 
 
 ADMIRALTY JURISDICTION OF COUNTY 
 COURTS. 
 
 I HAVE from time to time been requested to express my 
 opinions on the various Legislative Enactments which 
 have been brought forward for conferring a hmited juris- 
 diction in Admiralty matters on County Courts, and if 
 at one time I was induced to urge grave objections to 
 such a course, later experience has shown that to confer 
 on some inferior courts a subordinate jurisdiction, as in 
 salvage cases and in some matters of minor importance, 
 such as Masters' and Seamen's wages, would be a stej^ in 
 the ricfht direction, and a boon to the tradinjT interests of 
 all Countries. The plea of ' bringing justice to everybody's 
 door' appeals strongly to every Legislature, but still it 
 should not be overlooked that the great mass of Admiralty 
 cases are too important and technical to be properly 
 dealt with by the ordinary County Courts, and my ex- 
 perience leads me to believe that Admiralty jurisdiction 
 should only be granted to some few of the County Courts 
 at the leading seaport towns which are presided over by 
 Judges acquainted with maritime law, and which are 
 furnished with special machinery, such as is pro^aded on 
 a larger scale in the Admiralty Division of the High Court. 
 Admiralty jurisdiction has now been conferred on a 
 number of County Courts for twenty years, but my opinion 
 is strengthened by the fact that cases have frequently come 
 under my notice which show the undesirabilitv of those
 
 622 MAT^ITIME LEGISLATION, 
 
 tribunals for Atlniiralty matters. Of course, many of tlie 
 objections I have seen to the County Court AdmiraUy 
 jurisdiction might possibly have been avoided if legisla- 
 tion had provided methodically for the practice of the 
 Hio-h Court to be engrafted into the County Courts in so 
 far. as it could be done with a due regard to economy. 
 For instance, the provision for entering a caveat against 
 arrest of a ship is a most valuable and economic safeguard 
 to shipowners against arrest and detention of their property, 
 5^et no provision is made in either of the County Court 
 Acts, or by the rules made in pursuance of them, for the 
 entry of a caveat against arrest. The shipowner is, there- 
 fore, left by the Legislature at the mercy of an unscru^^ulous 
 claimant, who can arrest his ship at the moment she is 
 ready to sail, provided the claim is sufficiently small in 
 amount to confer jurisdiction on the County Court. This 
 is not an imaginary grievance, as the point has arisen in 
 practice ; but it is only due to the County Court officials 
 to acknowledge the courtesy with wliicli they always 
 endeavour, so far as lies in their power, to give the ship- 
 owner an opportunity of making a money deposit in lieu 
 of entering a caveat in order to secure non arrest. Other 
 curious anomalies have arisen, presumably from the fact 
 that in the wording of the County Court Acts the drafts- 
 man lias not been careful to follow the wording of the 
 Admirahy Court Act of 1801. The result is that the C^nmty 
 Courts have a more extended jurisdiction in rem in some 
 cases than that possessed by the High Court. ^ This leads 
 to a still greater anomaly, as the High Court, having no 
 original jurisdi(;t ion to try such a case, is the appellate court 
 on these matters from the decision of the inlerior court. - 
 Anollici- grc'il objection to tlic Count \- Courts is that 
 
 • SJce Brown v. Tlic Alma, 7 I\L L. C. (N.S.) 257. 
 '- 'J"h(> 11(11111. I-aw Itcn. 7 1'. D. 247.
 
 AmilRAl.TY JURISDICTION OF COUNTY COURTS. 02:5 
 
 damages are generally assessed by the Court at tlic trial 
 instead of being referred to the licgislrar, assisted by a 
 Merehant or Merchants. This entails a great amount of 
 unnecessary expenditure of time and money, and does 
 not conduce to a fair settlement of the amount of 
 damafjes. It is well known that a Judiic in Court cannot 
 deal with pure matters of accounts or figures with the 
 same accuracy coml)iii('d with prompt it luh' wliich dis- 
 tinguishes a reference. My view is exemplified csciv day 
 by the Judges referring pure matters of account to a 
 Master or arbitrator for assessment. 
 
 It appears to me that a far more satisfactory triliunal 
 for matters of so great importance as Admiralty cases, 
 dealing as they do in a great mau}^ instances Avitli the jjro- 
 perty and right of foreigners, would be to appoint certain of 
 the County Courts as Vice-Admiralty Courts with a similar 
 jurisdiction, up to a limited amount, as that possessed by 
 the Vice-Admiralty Courts abroad, and with the same 
 rules of procedure, except that an appeal should be to 
 the Admiralty Branch of the Supreme Court of Judicature 
 instead of to the Privy Council. The Judges of these 
 Courts, which should each embrace specified areas of sea- 
 board, should be appointed with a view to their knowledf^e 
 of Admiralty Law as well as their general legal know- 
 ledge, and provision should be made for their holdino- an 
 Admiralty Court whenever necessary. At present great 
 delay and expense frecpiently occur, owing to the fact that 
 the general business of a County Court occupies so much 
 of the Judge's time that he cannot deal with Admiralty 
 work with the promptitude by which the High Court has 
 earned for itself the grateful acknowledgjnents of the 
 mercantile marine world. 
 
 On this subject I may more particularly refer to my 
 remarks in the preface to the second edition, s;nh V.
 
 624 MARITIME LEGISLATION. 
 
 VI. 
 
 SUGGESTIONS FOR THE IMPROVEMENT OF 
 THE ADMIRALTY PRACTICE. 
 
 I CONFESS that I viewed with alarm the merging of the 
 Hifi-h Court of Admiralty by the Judicature Acts into a 
 branch of one of the Divisions of the Supreme Court of 
 Judicature, for the reasons I have fully set out in the 
 preface to the second edition, sub V., and, the new 
 Court of Bankruptcy not having been disturbed, I did 
 not expect that the old and venerable Admiralty Court 
 would l)e changed. 
 
 I felt at once that many and great difficulties would 
 arise, I have frequently pointed out that if the Judge of 
 the Admiralty Division were to go Circuit, as was originally 
 intended, the Admiralty suitor would be a great sufferer. 
 Fortunately a modus vivendi has been found, and the two 
 Judf^es of Probate, Divorce, and Admiralty find their time 
 too fully occupied with the business of that Division to 
 justify either attending assizes. This ensures a prompt 
 despatch of Admiralty business, and has enabled the 
 Admiralty Division to maintain the high reputation for 
 acceleration of business to which I have already alluded 
 in a former chapter. 
 
 Whilst on the subject of Judges, I may, perhaps, 
 suf'gest that when in the future fresh judicial arrange- 
 ments are nuide for the Probate, Divorce, and Admiralty 
 ])lvisi()ii it would !»<■ ;> great boon to suitors if one Judge 
 nloiK' took ,\(liniraliy cases. As representative of many
 
 SUGGESTIONS FOR ADMIRALTY TRACTICE, G25 
 
 underwriters wlio liave cases in the Conrt, I know tliey feel 
 the impossibiUty for two minds to view, in the same hght, 
 cases depending so often not on the facts of a case, but 
 on the weight to be given to tliem. Consequently in very 
 many cases the suitor cannot form any accurate opinion of 
 the result of his case, and therefore misses the great ad- 
 vantage which it is one of the highest aims of a Court to 
 offer, viz. the knowledge that, given certain facts, a certain 
 result may be expected. For salvage cases this is par- 
 ticularly important. As a rule, no two persons would 
 award the same figure on the same state of facts, but a 
 series of awards from the same Judge would enable suitors 
 to form an accurate opinion of the Judge's views of the 
 merits of a service with almost certain accuracy. 
 
 This suggestion would entail no loss of judicial power, 
 as, if the Admiralty work was not sufficient, the Judge 
 could, as he does now, take cases from the list of the other 
 branch of the Division. 
 
 A great objection to the provisions of the rules made 
 under the Judicature Act is the power to initiate Ad- 
 miralty proceedings in all District Eegistries. 
 
 It struck me as an anomaly that a District Eegistrar 
 of some Midland District Eegistry might issue a warrant 
 to arrest a ship in London or Liverpool in a bottomry 
 action. I doubt if such a contingency was considered 
 when the rules were framed, but surely such a state of 
 things should not be possible. It is a fact that warrants 
 are frequently issued in outport registries, and serious 
 difficulty and delay often occur in obtaining a release, as 
 it is frequently undesirable for a defendant to enter an 
 appearance in the District Eegistry, and consequently the 
 ship must remain under arrest until the papers are sent to 
 the Principal from the District Eegistry. 
 
 On this question I venture to suggest that, as I have 
 
 s s
 
 626 MAlilTLME LEGISLATION. 
 
 proposed with Yice-Admiralty in lieu of County Courts, 
 so Tvith the District Eegistries of the High Court, districts 
 embracing the principal ports should be carved out over 
 which the most important District Eegistry might exercise 
 jurisdiction, but in all cases I hold it most important that 
 so soon as a District Eegistry issues a writ or warrant, a 
 copy should be transmitted to the Principal Eegistry in 
 order that an appearance may be entered and release 
 extracted there without delay, and, if my suggestion in 
 the previous chapter respecting the establishment of Vice- 
 Admiralty Courts is adopted, the District Eegistries in 
 Admiralty causes might be united with the Yice-Admiralty 
 Courts.
 
 CyJl 
 
 VII. 
 FRElGIir WHEN SHIP ABANDONED AT SEA. 
 
 Probably no decision of our Law Courts, since the re- 
 markable case of the ' Marie de Brabant,' has caused so 
 much surprise among those interested in maritime com- 
 merce as that of the ' Cito ' (Law Reports, 7 P. D. 5). 
 
 The ' Cito,' a Norwegian barque, bound with a cargo of 
 rosin in barrels from Wilmington, U.S., to Eotterdam, was, 
 owing to the perils of the sea, abandoned by her crew 
 off the American coast. Some time afterwards she was 
 picked up by another Norwegian vessel called the ' Colonist,' 
 brought into Plymouth and arrested there with her cargo 
 on board for the salvage services rendered by the 'Colonist' 
 and her crew. 
 
 Before the Norwegian owners of the ' Cito ' could make 
 arrangements for the release of the vessel, preparatory to 
 sailing her to Eotterdam, in order to complete their con- 
 tract of Affreightment, the holders of the bills of ladinp- 
 applied to the Admiralty Division for an order that, upon 
 their giving bail to the salvors for am^ salvage due from 
 the cargo, the same should be released to them without 
 payment of any freight. 
 
 Some time previously a somewhat similar case had come 
 before the Court. The ' Kathleen,' an American barque, 
 bound with a cargo of cotton in bales from Charleston 
 to Bremen, after collision in the Channel had been aban- 
 doned and brought as a derelict into Dover. An order 
 having subsequently been made by the Couit for the cargo 
 
 s s 2
 
 623 MARITIME LEGISLATION. 
 
 to be sold, the owners of tlie ship moved the Court to set 
 aside the order, or, if it stood, to direct that the freight 
 should be paid out of the proceeds of the sale. The Judge, 
 liowever, held that the owners of the barque were not en- 
 titled to any pajTiient in respect of freight, on the ground 
 that, by the abandonment of the barque, the contract 
 to pay freight had been dissolved. 
 
 At first sight it may aj)pear difficult to draw a distinc- 
 tion between these two cases. Both vessels were abandoned 
 in the course of their voyages, and both were afterwards 
 broucfht in as derelicts. There was, however, a material 
 and, as I consider, a vital distinction between them, inas- 
 much as the cargo of the ' Kathleen ' was in so damaged a 
 state that the properly appointed surveyors considered its 
 transportation to Bremen impossible, and the vessel her- 
 self was a complete wreck, quite unfit to carry the cargo 
 on ; while the cargo of the ' Cito,' on the other hand, was 
 not injured at all, and the 'Cito' was little damaged, and 
 with very little repair could, without discharging her 
 cargo, have continued and completed her voyage. 
 
 Sir Eobert Phillimore, however, who was at the time 
 Judge of the Admiralty Division, was unable to see that 
 the circumstances of the two cases were materially dis- 
 tinct, and, considering himself Ijound by his own previous 
 decision in the ' Kathleen,' he ordered the cargo of the 
 ' Cito ' to be delivered to the owners without payment of any 
 freif^ht. The owners of the ' Cito ' appealed, but the order 
 was confirmed by the Court of Appeal. The Lords 
 Justices of Appeal did not go the length of saying that 
 the abandonment of the vessel put an end to tlu^ contract, 
 but tliey all expressed the opiiiion that, by the abandon- 
 ment of a ship, the shipowner does as far as he can aban- 
 don the contract so as to allow the other party to it, the 
 fnrLfo-rjwiior. to fron1 it ;is abandoned. Tlie result is much
 
 FREIGHT WHEN SHIP ABANDOXED AT SEA. Gl>9 
 
 the same ; so long as this ' Cito ' decision stands, it gives 
 the cargo-owner the full option to take advantage of the 
 common misfortune for the purpose of evading the con- 
 tract entered into by him. This, I confidentially assert, is 
 opposed to every principle of law and justice. A contract 
 by the law of every civilised country holds good until 
 both parties to it, of their own freewill, agree that it shall 
 not be carried out. Xow, how can the abandonment 
 of a ship in such a case as the ' Cito ' be taken to be an 
 expression of an agreement on the part of the owners of 
 the vessel to cancel the contract ? The action of the crew 
 in leaving a vessel to save their lives is not an act of will 
 at all ; they have to desert their vessel under the pressure 
 of a vis major ; how can this be taken to show an agree- 
 ment on the part of the shipowner to abandon his part 
 of the contract ? He has no power to exercise any option 
 at all. If, when the vessel is recovered and the owner 
 again requires the power to exercise his will in the matter, 
 he then elects not to carry out his contract and the cargo- 
 owner agrees, well and good, the contract is put an end 
 to by mutual consent. To assume, however, such consent 
 on the part of one of the contracting parties from an 
 action forced on his servants by a power which cannot be 
 resisted seems to me to be a doctrine utterly opposed to 
 common sense.
 
 030 :\iAmTiMi: legislation. 
 
 YIII. 
 
 REASONS ichy the making away icith or aiding and 
 abetting in scuttling or otherwise destroying a vessel 
 for the purpose of defrauding its undemcriters or others 
 icho have an interest therein, or in the cargo or freight, 
 should by agreement between the principal maritime 
 nations be deemed and taken to be an Act of Piracy} 
 
 Wheaton states, in his ' Elements of International Law,' 
 vol. i. p. 256, edition 18G4 : ' Piracy nnder the law of 
 nations may be tried and punished in the conrts of justice 
 of any nation, by whomsoever, and wheresoever com- 
 mitted,^ but piracy created by municipal statute can only 
 be tried by that state within whose territorial jurisdiction, 
 and on board of whose vessels, the offence thus created 
 was committed. There are certain acts which are con- 
 sidered piracy by the internal laws of a state, to which the 
 law of nations does not attach the same signification. It 
 is not by force of the international law that those who 
 commit these acts are tried and punished, but in conse- 
 quence of special laws which assimilate them to pirates, 
 and wliich can only be apj)lied by the state which has 
 enacted them, and then with reference to its own subjects, 
 and in places within its own jurisdiction. The crimes of 
 murder and robbery, committed by foreigners on board 
 
 ' Transmitted to His Grace the Duke of Richmond, K.G., President of 
 the Board of Trade. 
 
 '* ' Every man, l)y the nsaf,'c of our Euroiican nations, is jnsticial)le in the 
 jilaco whore theci'ime is conmiitted ; so are pirates, lioinf,' reputed out of the 
 j)rotoction of all laws and privileges, and to be tiit d in wliat parts soever they 
 may be taken.' Sir Lcolinc Jcnkbia, vol. ii. p. 711.
 
 WILFUL DESTRUCTION OF PROPERTY AT SEA. 081 
 
 of a Ibreign vessel on the liigh seas, are not justiciable in 
 tlie tribunals of auotlier country tlian that to which the 
 vessel belongs, but if committed on l)oard of a vessel 
 not at the time belonging, in fact as well as in right, to 
 any foreign power or its subjects, but in possession of a 
 crew acting in defiance of all law, and acknowledging 
 obedience to no flag whatsoever, these crimes may be 
 punished as piracy under the law of nations, in the courts 
 of any nation having custody of tlie offenders.' 
 
 This distinction of piracy under tlie law of nations 
 and piracy under the municipal law has of late become a 
 matter of serious consideration for those interested in the 
 maritime commerce of the world. 
 
 For although, thanks to the progress of civilisation, 
 cases of piracy in the common sense of the word have 
 become almost extinct, except in the Chinese and in some 
 parts of the Indian waters, the great extension of mari- 
 time commerce and enterprise has brought into promin- 
 ence a class of people who appear to make it their regular 
 business to defraud underwriters and others, by means of 
 fictitious insurances on ships, on freight, on goods, on 
 advances, or on other insurable risks in respect to voyages 
 on which the ships themselves are intended to be cast 
 awa}'. 
 
 And the enormity of their crimes is aggravated by the 
 fact, that for the sake of a gain sometimes comparatively 
 insignificant, property of the greatest value is sacrificed ; 
 valuable cargoes, for instance, belonging to innocent 
 owners have sometimes been destroyed simply in order to 
 enable the owners of the vessel or his accomplices to make 
 a profit out of an over-insurance of the vessel. 
 
 These crimes, altliough hitherto not commonly com- 
 prised under the designation of ' piracy,' appear to me 
 to deserve to be ranked with that class wliicli AVheaton
 
 632 MARITIME TJCGISLATIOX. 
 
 defines as piracy under municipal statute, a construction 
 adopted also b}' the late Mr. M'Cullocli (Dictionary), who 
 begins an able article on this subject with the following 
 words : ' Piracy consists in conunitting those acts of 
 robbery and violence upon the seas that, if committed 
 upon land, would amount to felony,' &c. 
 
 Now, in searching the statutes of the realm, I find that 
 the following enactments have been passed relating to this 
 subject, viz. : — 
 
 I. 27 Henri) VIII. cap. 4. — x\n Act declaring the order and 
 punishment of pirates and robbers on the sea. 
 
 II. 11 a7id 12 William III. cap. 7. — An Act for the more 
 eflFectual suppression of piracy. 
 
 III. 2 George II. cap. 28. — An Act for making" perpetual an 
 Act therein mentioned for suppressing of piracy. 
 
 IV. 18 George II. cap. 30. — An Act to amend an Act made in 
 the 11th 3"ear of the reign of William III. intituled 'An Act for 
 the more effectual suppression of piracy.' 
 
 V. 7 and 8 George IV. cap. oO. — An Act for consolidating and 
 amending the laws in England relative to malicious injuries to 
 property. 
 
 \'I. 9 George IV. cap. 56. — An Act for consoHdating and 
 amending the laws in Irehind relative to malicious injuries to 
 ]iroperty. 
 
 \ll. 1 Victoria, cap. 88. — An Act to amend certain acts re- 
 lating to the crime of piracy. 
 
 WVl. 1 Victoria, cap. 89. — An Act to amend the laws relating 
 to burning or destroying buildings and ships. 
 
 IX. 12 and 13 Victoria, cap. 90. — An Act to provide for the 
 prosecution and trial in Her Majesty's Colonies, of offences com- 
 mitted within the jurisdiction of the Admiralty. 
 
 X. 13 and 14 Victoria, cap. 26. — An Act to repeal an Act of 
 the 6th year of King George IV. for encouraging the capture or 
 destruction of piralical ships and vessels, and to make other pro- 
 visions in lieu tliereof. 
 
 XI. ]:> "/'/ II Victoria, cap. 27. — An Act to provide I'or the
 
 WILFUL DESTRUCTION OF PROPERTY AT SEA. G33 
 
 commencement of an Act of tlio present Session, intituled ' An Act 
 to repeal an Act,' &c. (see No. X.). 
 
 XII. 2'i and 25 Victoria, mp. 97.— An Act to consolidate nnd 
 amend the statute law of England and Ireland relating to malicious 
 injuries to property. 
 
 The following sections of this last Act especially treat 
 of offences committed against shipping property, and 
 they may be said to constitute the present statute law 
 on the subject : — 
 
 ' 42. Whosoever shall unlawfully and maliciously set fire to, 
 cast away, or in anywise destroy any ship or vessel, whether the 
 same be complete or in an unfinished state, shall be guilty of felony, 
 and being convicted thereof, shall be liable, at the discretion of 
 the Court, to be kept in penal servitude for life or for any term 
 not less than three years, or to be imprisoned for any term not 
 exceeding two years, with or without hard labour, and with or 
 without solitary confinement, and, if a male under the age of 
 sixteen years, with or without whipping. 
 
 ' 43. Whosoever shall unlawfully and maliciously set fire to, 
 or cast away, or in anywise destroy any ship or vessel, with intent 
 thereby to prejudice any owner or part-owner of such ship or 
 vessel, or of any goods on board the same, or any person that has 
 underwritten or shall underwrite any policy of insurance upon 
 such ship or vessel or on the freight thereof, or upon any goods on 
 board the same, shall be guilty of felony, and being convicted 
 thereof, shall be liable, at the discretion of the Court, to be kept 
 in penal servitude for life, or for any term not less than three years, 
 or to be imprisoned for any term not exceeding two years, with or 
 without hard labour, and with or without solitary confinement, 
 and, if a male under the age of sixteen years, with or without 
 whipping. 
 
 ' 44. Whosoever shall unlawfully and maliciously, by any 
 overt act, attempt to set fire to, cast away, or destroy any ship or 
 vessel, under such circumstances, that if the ship or vessel were 
 thereby set fire to, cast away, or destroyed, the offender would be 
 guilty of felony, shall be guilty of felony, and being convicted
 
 634 rviARITDIE LEGISLATION. 
 
 thereof, shall be liable, at the discretion of the Court, to be kept 
 in penal ser\'itude for any term not exceeding fourteen, and not 
 less than three years, or to be imprisoned for any term not exceed- 
 ino- two years, with or without hard labour, and with or without 
 solitaiy confinement, and, if a male under the age of sixteen years, 
 with or without whipping. 
 
 ' 45. Whosoever shall unlawfully and maliciously place or 
 throw in, into, upon, against, or near any ship or vessel any 
 gunpowder, or other explosive substance, with intent to destroy or 
 damage any ship or vessel, or any machinery, working-tools, goods 
 or chattels, shall, whether or not any explosion take place, and 
 whether or not any injury be effected, be guilty of felony, and 
 being convicted thereof, shall be liable, at the discretion of the 
 Court, to be kept in penal servitude for any term not exceeding 
 fourteen, and not less than three years, or to be imprisoned for 
 any term not exceeding two years, with or without hard labour, 
 and with or without solitary confinement, and, if a male under the 
 age of sixteen years, with or without whipping. 
 
 ' 4G. Whosoever shall unlawfully and maliciously damage, 
 otherwise than by fire, gunpowder, or other explosive substance, 
 any ship or vessel, whether complete or in an unfinished state, 
 with intent to destroy the same or render the same useless, shall 
 be guilty of felony, and being convicted thereof shall be liable, at 
 the discretion of the Court, to be kept in penal servitude for any 
 term not exceeding seven years, and not less than three years, or 
 to be imprisoned for any term not exceeding two years, with or 
 without hard labour, and with or without solitary confinement, 
 and, if a male under the age of sixteen years, with or without 
 \\ liijiping. 
 
 ' 47. Whosoever shall unlawfully mask, alter, or remove any 
 light or signal, or unlawfully exhibit any false light or signal, with 
 intent to bring any ship, vessel, or boat into danger, or shall un- 
 lawfully and maliciously do anything tending to the immediate 
 loss or destruction of any slii]), vessel, or boat, and for which no 
 ])unis}iment is hereinbefore provided, shall be guilty of felony, and 
 being convicted thereof shall be liable, at the discretion of the 
 Court, to be kept in penal ser\il ude lor life, or i'or any term not
 
 WILFUL Di: S'l TtUCTION OF rROPERTY AT SEA. <!35 
 
 less thiui three years, or to be imprisoned for any term not exceeding 
 two years, with or wiflumt hard hibour, and witli or without soli- 
 tary confinement, and, if a male under the age of sixteen years, 
 with or without whipping. 
 
 '49. Whosoever shall unlawfully and maliciously destroy any 
 part of any ship or vessel wliich shall be in distress or wrecked, 
 stranded, or cast ashore, or any goods, merchandise, or articles of 
 any kind belonging to such ship or vessel, shall be guilty of felony, 
 and being convicted thereof shall be liable, at the discretion of the 
 Court, to be kept in penal servitude for any term not exceeding 
 fourteen and not less than three years, or to be imprisoned for any 
 term not exceeding two years, with or without hard labour, and 
 with or without solitary confinement. 
 
 ' 72. All indiclable offences mentioned in this Act which shall 
 be committed within the jurisdiction of the Admiralty of England 
 or Ireland, shall be deemed to be offences of the same nature and 
 liable to the same punishments as if they had been committed 
 upon the land in England or Ireland, and may be dealt with, 
 inquired of, tried, and determined in any county or place in Eng- 
 land or Ireland in which the offender shall be apprehended or be 
 in custod}", in the same manner in all respects as if they had been 
 actually committed in that county or place ; and in any indictment 
 for any such offence, or for being an accessory to such an offence, 
 the venue in the margin shall be the same as if the offence had 
 been committed in such county or place, and the offence shall be 
 averred to have been committed " on the high seas ; " provided 
 that nothing herein contained shall alter or affect any of the laws 
 relating to the government of Her Majesty's land or naval foi'ces.' 
 
 Under the rapid extension of maritime commerce and 
 the ]nore liberal navigation laws of modern times, whereby 
 vessels of all nationalities may not only frequent without 
 restriction the ports of their own country but can trade 
 freely from and to almost any foreign place, the laws now 
 generally in force are insufficient for the suppression of 
 the above described malicious destruction of property.
 
 636 MARITIME LECflSLATION. 
 
 For instance, if a crime against property upon wliicli 
 insurance has been made in England be committed upori 
 the high seas on board a foreign ship, no steps can be 
 taken a^^ainst the offender in Eno-land, even if he after- 
 wards make his appearance in England, because neither 
 the law of nations nor the statute law of England con- 
 fers ujDon English tribunals any jurisdiction over the 
 crime. 
 
 A similar state of thiufjs exists as re^'ards other 
 nations, and the facilities of locomotion and intercourse 
 with foreign countries make it an easy thing for guilty 
 persons to keep out of reach of the tribunals of the 
 country to which the ship belongs, where alone he can 
 be made amenable to justice. Cases of this description, 
 far from being of rare occurrence, have of late years 
 increased, and are becoming a cause of serious loss to 
 persons concerned in maritime enterprise, more especially 
 to underwriters. 
 
 Ill order to show more clearly the state at which we 
 have arrived, I subjoin abstracts of different cases, dis- 
 tinguished alphabetically, the details of which have come 
 during the last few years under my own personal knowledge 
 and observation, viz. : — 
 
 A. 
 
 This vessel was lost in 1861, in the English Channel, 
 while on a voyage from France to the Black Sea, with a 
 cargo worth about 1,200/., but insured for 14,000/. 
 Great suspicions were at the time entertained, but no 
 effect ual steps could l)e taken in this country, and the 
 underwriters therefore were advised to compromise the 
 claim, which they did by payment of 10,000/. The 
 matter, coming to the knowledge of the French authorities, 
 was taken in hand by the Fublic Prosecutor, and the re-
 
 WILFUL DESTRUCTION OF PROPERTY AT SEA. G37 
 
 suit was that tlie master of the vessel and five others were 
 brought to trial, when they confessed that they had formed 
 a conspiracy to Ijuy and over-insure vessels and their 
 cargoes, and that the same were then to be fraudulently 
 destroyed ; and they stated that the prime mover in the 
 affair was a man living in London, by whom the above 
 caro^o had been boufjlit, and who had received the insur- 
 ance. Subsequent proceedings taken criminally agahist 
 this person in France were unsuccessful, ])ut lie was con- 
 demned to repay the 10, ()()()/., wliich, however, liave never 
 been recovered. 
 
 B. 
 
 This was a British vessel which sailed from Belgium 
 for Spain in 1862, with a heavy cargo, and put l)ack 
 under pretence of having broken her windlass. Joeing 
 grounded on the mud she was there rejDorted to have 
 strained and was discharged to be repaired, but the nature 
 of the repairs done was such as to prove that the ship was 
 from decay unfit to carry the cargo put into her. Being 
 taken out into the roads she was allowed to drift ashore, 
 which necessitated a further repair, and in the end about 
 2,000^. were borrowed on bottomry at exorbitant rates of 
 premium (40 and 45 per cent.), the accounts rendered 
 being even then not satisfactory as to the disposal of so 
 large a sum of money. Sailing at last from Flushino-, the 
 ship only got as far as the English Channel, where she put 
 into a port, and as no more money could be obtained on 
 bottomry the master endeavoured to sell part of the caro-o, 
 which, however, was prevented by energetic action on the 
 part of the underwriters' representatives ; but even then 
 the cargo could not be got out of the captain's hands 
 until the whole freight due by cliarter to tlie port of 
 destination was paid liim ; and besides all the expenses
 
 638 MArJTIME LEGISLATIOX. 
 
 previously incurred the underwriters had to bear the cost 
 of transport for the remaining part of the voyage. 
 
 C. 
 
 This vessel was the property of a native of Germany, 
 and sailed under the Peruvian flag. On November 4, 1862, 
 she left Bahia for London with a cargo declared to consist 
 of coffee and other goods, which were insured for an 
 enormous amount (upwards of 30,000/.) in London, Paris, 
 Bremen, Hamburg, &c. She was scuttled and abandoned 
 on December 19, in the neighbourhood of the Azores, and 
 on investigation it was ascertained that by far the larger 
 portion of the goods thus insured had never been sliij)ped 
 at all, and that the bills of lading or policies of insurance 
 in fact represented goods which had never had any exist- 
 ence. In spite of the fullest evidence given by the crew 
 the laws of this kingdom were powerless in the matter, 
 and no steps could be taken against the master, who, how- 
 ever, fortunately left London for Hamburg to attempt to 
 collect insurances which had been effected there on goods 
 alleged to have been shipped on his own account ; he was 
 at once seized and condemned to three years' imprisonment, 
 payment of all costs, and subsequent perpetual banishment 
 from the city and district of Hamburg. He made a full 
 confession of the frauds, the losses occasioned by which 
 fell heavily, not only upon underwriters and insurance 
 offices, but upon London merchants who had made advances 
 on the faith of spurious documents. 
 
 The frauds were instigated by a firm of merchants 
 of Bahia, and their complicity was manifest; but one 
 member of the firm was allowed to aljscond, and the 
 remaining Dartiicr, althou<di brcnijj'ht to trial l)('rore a 
 Brazilian court, was acrpiitted, because he threw all tlie 
 blame upon the absentee.
 
 WILFUL DESTRUCTION OF PROPERTY AT SEA. cno 
 
 A very full report of (his case appears in the 
 ' Shipping Gazette ' of April 8, 1863. 
 
 T). 
 
 This Portuguese vessel was owned hj a man who had 
 been connected witli tlio firm which was broken up by 
 the detection of their fraudulent complicity in tlie previous 
 case. The vessel sailed in 1862 from Bahia to a Por- 
 tuguese port, and very large insurances were effected in 
 Paris, Marseilles, and Genoa upon cargo alleged to have 
 been shipped by her. She was lost very shortly after 
 sailing, and on inquiry it was found that the greater 
 portion of the pretended shipments were fictitious, that 
 all the master's clothes and effects had been removed 
 before sailing, and tliat the master, who was an uncle of 
 the owner, had been put on board on purpose to make 
 away with the ship. The fictitious shipments were all in 
 the name of the one firm to which reference has already 
 been made. 
 
 E. 
 
 This was a foreign vessel bound from London to a 
 Dutch port with a cargo of linseed in 1863. She foun- 
 dered before she left the river Thames, and he'mg sub- 
 sequently raised by divers it was ascertained that the 
 lashings of the bow-port had been cut from the inside 
 and the port knocked out. The master and crew liavino" 
 disappeared before this was discovered, no steps could be 
 taken against them. 
 
 F. 
 
 This was a foreign vessel bound, in 1803, from Scot- 
 land to an English port, witli a cargo of pig-iron, and 
 was abandoned in a sinking state by the crew. On in- 
 vestigation, it turned out that the ship had been doubly
 
 640 MARITIME LEGISLATION. 
 
 insured, and the second insurance, wliicli had ah'eady 
 been paid, was refunded to the British underwriters ; and 
 as the first insurance done abroad was, by the terms of 
 the poHcY, avoided, in case of any subsequent insurance 
 being done on the same interest, the underwriters on ship 
 escaped all loss in this case. Those on cargo of course 
 were obliged to pay. 
 
 G. 
 
 This vessel belonged to one of the South American 
 republics, and was commanded by a German captain, 
 who had traded for some j^ears in that neighbourhood. 
 She sailed in 1863 from Spain for their port of registra- 
 tion, with a light cargo of salt, and on nearing one of the 
 Western Islands, two auger-holes were bored in her by 
 the mate, upon instructions given by the master, and 
 she began to fill rapidly. Being sighted from the island, 
 however, a pilot went off to her, and shaped her course 
 towards the harbour ; and as the master soon perceived 
 that she would not sink before reaching it, he himself 
 took the helm and ran her on to the beach, where she 
 remained. During the investigation which followed, the 
 above facts were deposed to on oath by one of the crew, 
 and on examination the auger-holes were actually found 
 in the position described. The underwriters, therefore, 
 refused to pay the demands made upon them, and the 
 question is still being contested. 
 
 H. 
 
 This vessel, belonging to one of the British colonies, 
 wliile on a voyage from South America to the Continent 
 in 18G3, was compelled by heavy weather to put into a 
 riiaiiiiel ])()i-l for repairs, where a new mainmast was })ut 
 ill, i'ov whieli |)iii'i)()se cargo had to be sJiifted, and a space
 
 WILFUL DESrilUCTION OF PROPERTY AT SEA. G41 
 
 made down to the keelson of the vessel ; ;it that time the 
 cargo was perfectly sound and cool. The day after she 
 had resumed her voyage it was noticed that the ship felt 
 warmer than usual, but no steps were taken to ascertain 
 the cause, and on the following day she was totally con- 
 sumed by fire. Upon investigation made ])y the under- 
 writers' representative, circumstances came to light which 
 showed the greatest negligence, if not culpability, of the 
 master. The Board of Trade declined, however, to order 
 an investigation, on the ground that the master had no 
 certificate which could be either withdrawn or suspended, 
 because the vessel, although hoisting tlie British flag, 
 hailed from a colonial port. 
 
 This was a Prussian vessel bound from Antwerp to 
 New York, which sailed in December 1863, put into 
 Eamsgate for repairs in the same month, and in April 
 1864 sailed again for her destination. Six days after- 
 wards she was wilfully sunk off the Scilly Islands, and 
 property insured for nearly 30,000/. was thus made away 
 with. On investigation, the circumstances of the case 
 were clearly ascertained, and in order, if possible, to pro- 
 cure a conviction in this country, the carpenter, who had 
 actually bored the holes in the vessel, was arrested and 
 committed for trial at Maidstone ; but the only cliartre 
 of which our Courts could take cognisance was one of 
 conspiring, while in British jurisdiction (at Eamsgate), 
 to commit frauds which were afterwards actually com- 
 mitted beyond the jurisdiction ; on this technical question 
 the prosecution failed, although the facts were so little 
 denied that it was actually proved that at the ti-ial Ijotli 
 prisoner and witnesses were wearing clotlies made out of 
 cloth stolen in Eamsgate from the cargo, thus clearly show- 
 
 T T
 
 042 MATIITIME LEGISLATION. 
 
 ing that at that time tlie ship was intended never to reach 
 her destination. 
 
 The owner, master and mate being, after great exer-. 
 tion on the part of the underwriters' representative ^ 
 arrested and brono-lit to trial in Prussia, were convicted 
 and sentenced to eight, five, and three years' penal servi- 
 tude respectively. 
 
 The underwriters on cargo, residing in Belgium, France, 
 the United States, and elsewhere, were in this case sub- 
 jected to a loss of about 25,000/., all of which they had 
 to pay, solely through a crime committed in order that 
 the owner and his accomplices might make some dishonest 
 profit out of the insurances effected by them on the ship, 
 the freight, and advances. 
 
 K. 
 
 This colonial vessel was lost by a master who had only 
 been put into her when on a voyage to a neighbouring 
 port in 18G4, and, with the cargo, totally destroyed shortly 
 after. Insurances on tlic liiill of the vessel had been 
 effected in Europe to a considerable extent. 
 
 Xo iiKpiiry was made, because, by colonial regulations, 
 
 tlie master was not obliged to have a certificate, and 
 
 there was, therefore, no way of punishing him for gross 
 
 carelessness, if absolute criminality could not be clearly 
 
 established. 
 
 L. 
 
 Tliis foreign vessel sailed from South America in 18G4, 
 bound for a Chamiel port, for orders; and after putting 
 into one of the Jkazilian ports to repair damages, pro- 
 ceeded on her voyage. Some months later she was 
 abandoned in tlie vicinity of the Cornish coast, and sliortly 
 afterwai'ds drove ashore near the Land's End, wherel)y 
 slii[) and cargo were totally lost.
 
 AVILFUL I)i;STIIUCTI()N OF TROPERTY AT SEA. iU3 
 
 The wliole of tlie crew signed declarations to the elTbct 
 that the vessel was improperly abandoned by the master 
 and his brother the mate, who appeared to be joint-owners ; 
 the sufferers by the loss of the cargo were, in this instance, 
 British underwriters, who were prevented from lending 
 their assistance to l)ri]ii: the guilty parties to justice in 
 this country by their experience of the difficulty of ob- 
 taining a conviction, and the enormous expense and 
 trouble with which it would be attended. The only 
 course remaining was to endeavour, with the aid of detec- 
 tives, to persuade the criminals to proceed to their own 
 country ; but, of course, the proprietors and underwriters 
 of cargo suffered the loss of the wliole of their interest. 
 
 M. 
 
 This foreign vessel sailed from a Belgian port for the 
 West Indies, in 1864 ; and was shortly afterwards aban- 
 doned by the crew and reported by them as having 
 foundered. She was, however, picked up by a steamer 
 and taken into a British port, when it was ascertained 
 that attempts had been made to knock out the bow-port, 
 which, being unsuccessful, three auger-holes had been 
 bored in the bows of the vessel, which would, in a very 
 short time, have insured her destruction. 
 
 N, 
 
 The facts of this case are so notorious, and the case 
 itself of so recent date, that it will be sufficient briefly 
 to state how, at the Central Criminal Court Session of 
 February 1867, it was proved that this ship, bearing the 
 British flag, and ostensibly proceeding on a voyage from 
 Newport to Shanghai, was purchased, insured, and de- 
 spatched with the manifest intention that she should be lost
 
 GU MAIUTIME LEGISLATIOX. 
 
 on the voyage, and the underwriters thereby defrauded. 
 Four of the parties iraphcated having been sentenced to 
 twenty, ten, and five years' penal servitude, it M^as shown 
 in Court tliat other vessels in which they were interested 
 had been made away with in a similar manner, and it is 
 to be hoped that a most dangerous gang has thus been 
 broken up. 
 
 The whole of the evidence given, and the nature of 
 the proceedings, may be seen from a printed report issued 
 1)y Lloyd's Salvage Association. 
 
 The prosecution and conviction of the four parties 
 above referred to cost the underwriters more than 7,000/. 
 
 0. 
 
 This vessel, under a foreign flag, sailed from a Belgian 
 port for South America. Within view of the British 
 coast the master made a deliberate attempt to sink the 
 vessel, which was prevented by the timely appearance of 
 a pilot-boat with several persons on board. The master 
 confessed that what he had done had been instigated by 
 tlie owner, and the facts were clearly proved b}^ the 
 evidence of the crew. Tlie parties who would have 
 suffered by the loss of ship and cargo, and who will now 
 liave to bear the very heavy expenses of salvage, &c., 
 are resident on llie Continent and in South America. 
 In spite of all tliis it was impossible to take any steps 
 in this country, and when, with the help of a detective 
 specially employed for the purpose, the master had Ijecn 
 induced to proceed to his native countr}^ he could there 
 be criminally ])roceeded against oidy because he had 
 ])liiiid('ic(l I lie cai'i^'o. 
 
 P. 
 
 This \v;is a vessel of l'.>4 Ions register, niidc]' the 
 coniiiiaiid <»r a Iiiili^li '•.•qjiaiii. wliidi sailed fi'oni
 
 WILFUL DESTItUCTION OF PROPERTY AT SEA, C45 
 
 Bangkok on Augu.st 13, 18G0, bound for Hongkong, 
 with a cargo principally shipped by one merchant of 
 the former place. Having been lost in fine weather on 
 the 24th of the same month, suspicions were aroused, 
 which led to the holding of a Naval Court to inquire into 
 the circumstances. The result of the inquiry was, that 
 both captain and mate were arrested, and subsequently 
 the above alluded to principal shipper was also arrested, 
 and the tliree were tried at Singapore at the January 
 sessions in the present year. It was ascertained that 
 insurances to the extent of 19,000/. liad been effected 
 upon property valued at not more than 8,500/.; and it 
 was conclusively shown that the captain and mate had 
 made away with the vessel at the instigation of the 
 principal shipper, in order to obtain the advantage of 
 their fraudulent assurances. The result was, that the mer- 
 chant and the master were sentenced to penal servitude 
 for life, and the mate to penal servitude for five years. 
 
 As all principles of insurance show distinctly that the 
 underwriter calculates his premium only on what is 
 called ' the common or ordinary maritime risk,' any act 
 intentionally augmenting such risk, is per se not only 
 entirely against good faith, but actually destroys the 
 basis upon which underwriting proceeds ; and it can 
 only be regretted that, although so many malpractices 
 of this description have, during the last six years, been 
 successfully carried out, it has in very rare instances 
 been possible to bring the offenders to the fate which 
 they so well deserve. 
 
 The details above given will show conclusively that 
 the main obstacle to taking efficient action against this 
 class of criminals is the dilliculty of bringing them before
 
 04tj MARITIME LEGISLATION. 
 
 the proper jurisdiction. This evil is aggravated by the 
 fact that the same opportunities which exist for the 
 offenders to keep out of the way equally facilitate the 
 removal of the witnesses necessary for the prosecu- 
 tion. 
 
 What is wanted is, that in case of any wilful destruc- 
 tion of ships or their cargoes, or other crimes against 
 property on the high seas, the suspected persons may be 
 brought before the tribunals of the first place where they 
 can be found, and a proper investigation thereby rendered 
 possible before the crew or the passengers, who probably 
 are the only persons able, by their knowledge of the cir- 
 cumstances under which the crime was committed, to 
 give conclusive evidence, have dispersed, and the possi- 
 bility of procuring the necessary proofs has thereby 
 vanished. 
 
 For these reasons, amongst others, it is necessary, in 
 my opinion, to class such robberies and felonies on the 
 liigli seas not merely with crimes which Wheaton states 
 to be amenable as piracy under municipal law, but to 
 constitute them piracy under the conventional law of 
 nations, and I propose nothing less than a declaration — 
 
 ' That any one causing to be effected, or aiding 
 and abetting in effecting, fictitious insurances, as 
 well as any one causing to be destroyed, or aiding 
 and abetting in destroying, shipping property, or the 
 merchandise laden on board, or any one causing to 
 be effected, or aiding and abetting in effecting, any 
 insurances on any article knowing the same not to 
 be on board, or on vessels, or their cargoes, or 
 the freight, or advances, knowing the vessels to be 
 intended to be cast away or destroyed at sea, is 
 to be (lc('ni((l and taken to Ix' a pii'al<', and to l)e
 
 WILFUL DESTliUCTION OF PROPERTY AT SEA. 047 
 
 justiciable as sucli by the tribunals of all niaritime 
 nations.' 
 Judging from the facility witli which the laws regu- 
 lating the rule of the road at sea, &c., have been univer- 
 sally adopted, I have no doubt, if the initiative in this 
 important matter were taken by Her Majesty's Govern- 
 ment, that all maritime states would be glad to join in 
 the adoption of an international declaration, which would 
 be more likely than anything else to prevent this enor- 
 mous destruction of property, by bringing to speedy 
 punishment a class of malefactors enjoying hitherto com- 
 parative impunity. 
 
 16 Fenchurch Buildings, London : 
 September lbG7. 
 
 The expectations I had, that Her Majesty's Government 
 would consider it in the interest of maritime commerce to 
 move in the directions I suggested not having been 
 reahsed, I think it my duty to assert, that the experience 
 I have gained, since the above memorandum was pre- 
 sented, has, if anything, strengthened my opinion as to the 
 advisability of making serious offences against shippinf^- 
 property punishable as crimes under International Law. 
 
 To show that at least one well-known authority on 
 International Law has considered my suggestion well 
 worth consideration, I quote tlie following sentences 
 which appeared in the second edition of the late Sir Eobert 
 Phillimore's ' Commentaries on International Law,' vol. iv. 
 p. 775 : — 
 
 At present there is a practical impunity accorded to savage and 
 brutal men, which encourages them in tlie commission of acts of 
 cruelty upon the high seas at which human nature sluidders • and 
 the true end of International Law, the wt-liare and safety of indi- 
 viduals as members of States, is sacriliced lo an over-scrupulous
 
 (348 MARITIME LEGISLATION. 
 
 respect for a general principle which has ceased in this particular 
 instance to be a means of maintaining that end. 
 
 A similar remark applies to the fraudulent destruction or cast- 
 ing away of vessels and cargoes, a crime which unhappily often 
 escapes punishment because the country to which the ship is bound 
 or to which the offenders come is not that to which the ship 
 belono-s, and its courts have therefore no jurisdiction. It has been 
 proposed, in order to meet this evil, to make these crimes, by the 
 general consent of nations, acts of piracy and justiciable every- 
 where (cide Wendt's ' Maritime Legislation,' 2nd ed. p. 148), 
 
 Having referred to this opinion, which was expressed 
 as far back as 1874, it becomes now my duty to mention 
 a case occurring. in the following year, which, it might be 
 thought, would have aroused public opinion to such an 
 extent as to have compelled the adoption of my sugges- 
 tion. 
 
 On December 11, 1875, the Xorth German Lloyd 
 steamer ' Mosel ' was lying at the quay at Bremerhaven 
 ready to be despatched in a few hours via Southampton for 
 New York, when, in consequence of the fall of a box 
 which slipped out of the carrier's hands, an explosion 
 occurred, whicli, besides causing the destruction of pro- 
 perty to an enormous amount, killed five passengers and 
 four members of the crew of the ' Mosel,' as well as 
 seventy-six persons who happened to be in the neighbour- 
 hood, a very large numl)er more being dangerously 
 wounded. 
 
 Shortly after the explosion liad taken place, the sound 
 oi' a sliot was heard coming from one of the j^rivate cabins 
 of the ' Mosel.' It was found that a passenger called 
 William King Thomas, but whose real name proved to be 
 Alexander Keith, had unsuccessful!}' attempted to destroy 
 liiiiiself. He succumbed eventually, but lived long enough 
 to coiii'css to one of tlic most (li;ibolical crimes ever com-
 
 WILFUL DESTRUCTION OF PROPERTY AT SEA. G49 
 
 mitted. The box, which was filled with dynamite, with a 
 clockwork arrangement for exploding it, belonged to the 
 miscreant, who had intended to ship it on the ' Mosel,' 
 and had i)lanned that it should explode during the voyage, 
 when it must have utterly destroyed the vessel and all on 
 board. Further particulars were brought to light at the 
 investigations subsequently set on foot. It appeared that 
 Keith had obtained a clockwork machine from a small 
 watchmaker in the interior of Germany, who had been 
 made to believe that the mechanism he was ordered to 
 make was intended for use in a factory. The in- 
 strument was so contrived that it would 2:0 for a certain 
 time and then set free a hammer, and it was so fixed 
 by Keith in the chest that the hammer on being freed 
 would explode the contents of the chest. The dynamite, 
 according to the report of Iler Majesty's inspector of 
 explosives for the year 1875, was sufficient to cause damage 
 to houses 750 yards away. 
 
 From circumstances coming to light at the time it was 
 surmised that the miscreant intended to leave the ' Mosel ' 
 at Southampton, and cause extensive insurances to be 
 effected on property declared to be either already on board 
 or to be shipped at that port, when he would have obtained 
 a very large profit by the destruction of that vessel. 
 
 Now let us suppose that the miscreant's intentions had 
 partly, but not entirely, succeeded, and that the ' Mosel ' 
 had been damaged only after leaving Southampton, and 
 sufficient proof of the diabolical crime had been forth- 
 coming. 
 
 Under what jurisdiction could Keith have been in- 
 dicted in the present state of the law if he had got away 
 and been found, say, in Norway ? 
 
 I must entirely concur with Professor von Ilolzendorlf 
 of Munich, who in his ' Observations on the liremerhaven
 
 GoO MARITIME LKGISLATIUN. 
 
 Explosion' {vide 'Deutsche Eundscliau,' II. G, p. 402) 
 expressed the opinion that in the present state of the law 
 upon these subjects Keith would have escaped punishment 
 altogether. 
 
 Before I conclude this chapter I will quote some 
 remarks uj)on my proposals from a paper prepared by 
 Dr. H. von Spesshardt, of Marburg, on s. 2G5 of the 
 German Criminal Law, which apparently is the only one 
 treatinsf of crimes such as are now under consideration. 
 
 This section is as follows : — 
 
 Whoever, with criminal intent, sets fire to an object insured 
 against fire, or causes a vessel, wliicli, or its cargo or freight is 
 so insured, to sink or strand, is subject to penal servitude up to 
 ten years, and at the same time liable to a fine of from a hundred 
 and fifty to six thousand marks. In case of extenuating circum- 
 stances, imprisonment for not less than six mouths, besides a fine 
 not exceeding three thousand marks, may be inflicted. 
 
 The observations of Dr. von Spesshardt run thus : — 
 
 Although it may appear, from the considerations hitherto 
 entertained, as if the penal conditions of s. 2G5 entirely fulfilled the 
 j)ractical requirements of maritime intercourse, still one circumstance 
 has not yet been mentioned, which puts upon the crime of marine 
 insurance fraud quite a special mark of danger. Marine insurance 
 fraud is a crime of essentially international importance. The 
 crijue of one not only a Sects the nation to which he belongs, but 
 the criminal attack is moreover directed against the property of 
 subjects of various states. They all have a lively interest in prose- 
 cuting the criminal. To this must be added that the scene of the 
 crime is the high sea or some foreign territorial water, on account 
 of which the capture of the criminal is very ditficult and at times 
 even legally as well as actually quite impossible. Owing to this 
 personal interest which all maritime nations have in prosecuting 
 maritime fraud energetically, it certainly appears justifiable to 
 a])|ily international measures to combat the same. 
 
 hi I his sense E. E, Wendt made, in a memorial submitted to
 
 WILFUL DESTRUCTION OF PUOrEKTY AT SI'.A. 051 
 
 the English Govenirnent, the noteworthy proposal to treat, Ly 
 agi'eemeiit of the seafaring nations, maritime fraud, the destruction 
 of insured vessels, as well as other frauds committed against 
 insurance cuuipanies, as piracy and to allow its punishment to 
 each of the contracting states. 
 
 If our German penal code were altered in accordance with this 
 principle, and the one-sided national and territorial principle were 
 made less prominent, it cannot be denied that a most important 
 improvement would be effected. 
 
 It is a question if and how an insurance fraud, committed by 
 a foreigner against German property, whether the property belongs 
 to Germans or is insured in Germany, can be looked upon as a 
 crime in accordance with the conditions of the penal code. Crimes 
 committed on the high seas by foreigners on board of German 
 vessels, irrespective of the fact whether they are merchant vessels 
 or men-of-war, can undoubtedly be prosecuted criminally on the 
 part of Germany. According to generally recognised international 
 principles, vessels on the high seas are, by means of legal fiction, 
 looked upon as part of the state under whose flag they sail : this 
 applies in the same manner to both men-of-war and merchant 
 vessels. It is otherwise, however, if, for example, a Frenchman 
 .commits a crime on board of a German vessel within English 
 territorial waters ; in this case, the state in whose waters the deed 
 was committed may, wath justice, claim the execution of its 
 territorial authority : only men-of-war, it is agreed, are to be 
 excluded, and are subject to the law of the Home State, even in 
 foreign territorial waters. In the example given, the criminal 
 Frenchman might be prosecuted on the part of Germany, if the 
 German vessel is a man-of-war, and on the part of the English 
 authority, if it is a German merchant vessel ; and the same would 
 apply to most states, as the territorial principle has been generally 
 introduced in the penal code. 
 
 On the other hand, if a crime is committed by a foreigner 
 abroad, although against German property, our code is powerless, 
 as, for example, if an Englishman destroys, on the high seas, a 
 Spanish vessel laden with German property or insured with a 
 German insurance company. According to our penal code, no
 
 662 MARITIME LEGISLATION. 
 
 crime which c&n be prosecuted on the part of Germany exists, 
 although Germany has a great interest in capturing the criminal. 
 The states have, therefore, to look to international legal assistance, 
 to extradition treaties; but to whom shall the criminal be sur- 
 rendered, who in the meantime has gone to America ? In this 
 instance the states interested are England, the criminal being a 
 subject thereof, Spain, on whose territory the crime was committed, 
 and Germany, which, if the vessel is again floated and only the 
 cargo is lost, would probably suffer the most. But even if America 
 surrendered to England, no punishment might possibly be inflicted, 
 as England only punishes its subjects for certain crimes committed 
 abroad. Extradition treaties effected between the separate states 
 would, therefore, in view of the doubt arising as to which state 
 should prosecute the criminal, not give suitable assistance. It 
 should therefore be acknowledged that under the circumstances an 
 international crime exists, for the suppression of which all states 
 should cordially unite. In such cases the principle of nationality 
 must be put aside, and each state have the right to put its hand 
 upon the criminal. Certain success will only then be assured, if 
 the arm of justice awaits the criminal wherever he goes. 
 
 Although we, therefore, perfectly agree with Wendt's jjroposal 
 in principle, we should wish it limited to maritime fraud in its 
 technical name. To fictitious insurances, however, or to insurances 
 of cargo not in existence, which actions are not even a completed 
 fraud against the underwriter, cannot, per se, without the introduc- 
 tion of any forcible measures, be attributed such importance which 
 would justify the application of the, at any rate, drastic principle. 
 
 There remains only one observation for nie to make 
 uii the latter part of these remarks, in which Dr. von 
 ^pessliardt questions whether the conclusion of fictitious 
 insurances ought to be placed in the same category as the 
 other crimes to which I have here referred. 
 
 Now it appears to me that the conclusion of a 
 fictitious insurance is an attempt to defraud, a conspiracy 
 to obtain inoiiey under ialse pretences, and therefore 
 ou;_flit ('(pi.illy with all other crimes perfected on the
 
 WILFUL DESTRUCTION OF PROPERTY AT SEA. G53 
 
 high seas, to be punisliable as piracy under the hiw of 
 nations. 
 
 But before I conckide this chapter I must not omit to 
 state a most gLiring case of piracy which was perpetrated 
 between October 1880 and April 1881, which led to judicial 
 investigations. These are here reported with the names 
 of the parties imphcated in these partly successful frauds. 
 
 The steam-vessel 'Ferret,' belonging to the Highland 
 Eailway Company, was chartered in the year 1880 by 
 James Stewart Henderson. The steamer proceeded in the 
 first instance to Cardiff, there loading a cargo of coals for 
 Marseilles, and in due course passed the Eock of Giljraltar, 
 where her name was signalled. During the night she re- 
 turned to the Atlantic, at which time a boat and life-buoys 
 were thrown overboard. She next put into San Antonio, 
 Cape de Verde, under the name of ' Bentan,' from which 
 place she proceeded to Santos, where she was chartered 
 for conveyance of a cargo of coffee, which was laden on 
 board for delivery at Marseilles and Genoa. The vessel 
 having cleared from Santos, next appeared under the name 
 of ' India ' at Cape Town, at which place Henderson sold 
 the cargo and appropriated the proceeds to his own use, 
 having during the voyage, or previously, forged the various 
 documents in order to show that the coffee had been 
 purchased for his account. From Cape Town he sailed 
 with the proceeds in his possession for the Mauritius, 
 where he discounted one of the drafts for 500/., sailing 
 thence for Melbourne, at which place the vessel was seized 
 and Henderson and Wright, the sailing master, were taken 
 into custody, and subsequently tried and convicted for an 
 attempt to defraud the various parties interested. The 
 drafts, amounting to 7,500/., then in the possession of 
 Henderson, were attached, but in order to recover the 
 proceeds of said drafts, proceedings in this country,
 
 654 MAIUTIME LEGISLATION. 
 
 against tlie Standard Bank of British Soutli Africa and 
 others, were requisite, some of the drafts having been sent 
 forward for encashment b}^ the Sheriff of Mel])ourne. 
 
 These proceedings did not terminate until 1884, and 
 were of a very compHcated and expensive nature. 
 
 I liave no doubt tliat one of the reasons why the Law 
 Officers of the Crown did not tliink it worth their while to 
 trouble themselves with the consideration of my suggestions 
 under this head was that, in this age of telegraphic com- 
 munications over the whole civilised world, the frauds 
 I reported could scarcely be carried out to any large 
 extent. 
 
 But I imagine that the two cases I reported since 
 18G7 (and which might have been amplified if I had 
 thought it necessary) are sufficient to prove that, in spite 
 of the facility to communicate by cable with all parts of 
 the world, such frauds are not only contemplated but 
 carried out with a degree of effrontery which has rarely 
 been exceeded. 
 
 Let it not be forgotten that within the short space of 
 about seven months the criminal acts perpetrated by these 
 scoundrels would nuiiibcr more than a dozen, and that 
 thev escaped wiili punishments of seven years and three 
 years and a half penal servitude respectively, which would 
 not have been the case if the trial had taken })lace in this 
 country. 
 
 And the best proof that (he parties convicted are not 
 the only ones who were implicated in these scandalous 
 proceedings was given by the Telegrai)hic Code found 
 on board the 'Ferret' at Mell)()iirne ; so that we need 
 not be surprised if conspiracies of a similar nature are 
 attempted after the public has forgotten the lesson in 
 <|uestion.
 
 IX. 
 
 MERCHANT SHIPS' LOGS, PROTESTS AND DE- 
 POSITIONS BEFORE RECEIVERS. 
 
 Everybody connected with maritime commerce in any 
 shape or way must agree with me that the above-named 
 subjects are of the most vital importance to those wlio have 
 a bojid fide interest in any maritime adventure, whetlier as 
 the owners of ship or cargo, as the underwriters, or as 
 the bankers who have made advances on the security of 
 ship, cargo, or freight. 
 
 The laws of almost all maritime nations have indeed 
 from time immemorial very rightly contained strinijent 
 enactments as to how during the navigation of a vessel 
 the circumstances of daily occurrence on board must be 
 recorded, and in what manner, after the termination of a 
 voyage, and before the crew is dispersed, the necessary 
 steps are to be taken to obtain their evidence as to the 
 correctness of such records. 
 
 In this country, where undoubtedly the largest interests 
 of maritime commerce centre, a state of things has arisen 
 which for its anomaly is unprecedented. This lias been 
 often acknowledged, but the various attempts to rectifv 
 the law as described in the following j)ages have been 
 entirely unsuccessful. 
 
 As far back as February 4, 18G4, the London Salvaire 
 Association and the representatives of the principal foreitrn 
 underwriters addressed the following conuniuiication :
 
 656 MARITIME LEGISLATION. 
 
 To the Lords of the Committee of rriry Council for Trade. 
 
 My Lords, — We, the undersigned, being entrusted with the 
 protection of important mercantile and underwriting interests, both 
 Britisli and foreign, and being continually called upon to inquire 
 into the causes and particulars of casualties occurring in all parts 
 of the coasts of the United Kingdom, have, since the passing of 
 the Merchant Shipping Act of 1854, been brought into constant 
 contact with the Receivers appointed by your Committee, and have 
 carefullv watched the working of the regulations laid down by the 
 said Act ; and we now beg leave to lay before your Lordships the 
 expression of our opinion that, although the eighth part of the Act 
 makes provision for inquiries and examinations in cases of wreck 
 and casualty, the objects contemplated thereby are not fully at- 
 tained, and the clauses in question are, therefore, susceptible of 
 improvement. By this eighth part of the Merchant Shipping Act 
 of 1854, Receivers of Wreck are empowered to institute examina- 
 tions with respect to ships in distress, such examinations to be held 
 as soon as conveniently may be, and two copies of such examina- 
 tion to be taken, one to be transmitted to the Board of Trade and 
 the other to be exhibited by the Committee for managing the 
 affairs of Lloyd's to persons desirous of examining the same. 
 This enactment, therefore, would seem to contemplate the bringing, 
 witliin a very short period, the facts connected with every casualty 
 under the notice both of the Board of Trade and of the parties 
 interested. 
 
 Tliis very desirable result is, however, at present not arrived at. 
 The Act which gives power to the Receiver to take a deposition 
 names no penalty in the event of the master or other of the crew 
 of a ship in distress refusing or neglecting to make one, and the 
 phrase * as soon as conveniently may be ' is almost invariably 
 stretched out to such a time as the master has settled all his other 
 affairs when his deposition, if made at all, becomes simply an echo 
 of the protest wliicli lie is obliged to make in order tochiim against 
 his underwritci's. I ndccd, sf) far is the great importance of these de- 
 positions lost siglii of, I'Vfii by the Receivers of Wreck themselves, 
 tli;it thry l;a\e biiii kiiM.vii lo (ell iirist'TS of ships who wished
 
 MERCHANT SHIPS' LOGS AND PROTESTS. 657 
 
 to make their depositions, after the total loss of their vessel, that 
 they need not be in a hurry about that, for it would do just as well 
 when they got home. By this course the clauses of the Act are 
 rendered nugatory, and what was intended to be a clear and succinct 
 narrative from the scene of the casualty becomes comparatively 
 useless. 
 
 But when it is considered that cases may occur where frauds 
 may be attempted, then the necessity for ensuring the taking 
 of depositions before the parties leave the spot becomes evident. 
 For it cannot be doubted that the occurrence of a fraud is frequently 
 known to men who, if questioned at once, would gladly tell the 
 whole truth, but when once allowed to leave they are content to 
 remain silent ; or if likely to prove disagreeable witnesses, every 
 opportunity is given for their being sent out of the way, so that 
 before the parties who are ultimately to suffer can transmit their 
 instructions the best opportunity of defeating any irregularity 
 is lost. 
 
 As the Customs Consolidation Act orders that every ship arriving 
 in the United Kingdom shall, within twenty-four hours after arrival, 
 be rejDorted at the Custom House, or that the master shall incur a 
 penalty for neglecting so to report, in like manner we think that 
 the public interest requires that every master of any ship, whether 
 British or Foreign, which either suffers or inflicts damage, shall, 
 within twenty-four hours after the occurrence of the damage 
 (except where the same may happen at sea, in which case within 
 twenty-four hours after arrival in the first port in the United 
 Kingdom), report himself to the Receiver of Wreck, and there 
 make on oath a deposition in the same form as it is made at pre- 
 sent, or in default of so doing shall be liable to such penalty as 
 your Committee may think fit to impose. Further, that in every 
 case of stranding or total loss the deposition of every one of the 
 crew shall be separately taken in the same manner as that of the 
 master. We have further to suggest that a distinct enactment 
 be made with respect to the services of an interpreter in cases 
 where the master of a foreign vessel can speak no language 
 in which he can make himself understood by the Receiver, for 
 the difficulty of communication in such cases often causes the 
 
 u u
 
 658 MARITIME LEGISLATION. 
 
 Receiver to omit altogether tlio taking of a deposition, and we 
 cannot think that the laws of this country should be allowed to 
 fail in theii" effect because the Consuls and Vice-Consuls of foreig-n 
 Powers are so frequently utterly indifferent to the necessity of pro- 
 vidino- for such communication. By these means, and by impressing 
 upon the Receivers the necessity of the most rigid canying out of 
 the reo-ulations in this respect, we believe that so complete a record 
 of all casualties may be obtained as will go far to check dishonest 
 and fraudulent practices, which we are afraid are still of too frequent 
 occurrence. 
 
 We therefore pray your Lordships to recommend that the 
 Merchant Shipping Act, at as early a period as possible, be 
 amended by the insertion of clauses to the above effect. 
 
 Tills subject was on several occasions Ijronglit before 
 the Board of Trade,' as will be seen by a return of the copies 
 of letters and correspondence issued on May 15, 1876, and 
 laid before the House of Commons. The letters were from 
 the Secretary of Lloyd's, the Secretary of the Liverpool 
 Underwriters' Association, the Wreck Commissioner, the 
 Secretary to tlie London and Provincial Marine Insurance 
 Company, the Secretary of the Salvage Association, Messrs. 
 Waltons, Bubb, and Walton, Messrs. HoUams, Son, and 
 Coward, and myself, and in them particulars of numerous 
 and very distinct instances of irregularities and even frauds 
 perpetrated under the present system were made known to 
 the Board of Trade, but nothing to remedy such a state oi 
 affairs has been done. 
 
 A very glaring case which occurred within my own 
 knowledge induced me to issue in October 1878 the 
 following memorandum : — 
 
 Merchant Snu's' Pkotests. 
 
 Tlif prosi'cutinii lalcly concluded at Cork of 'The Queen v. 
 Minifli ' lias again ])roiiglit ]»r<)niincnl ly r(.i-\\;ii-(l Ihc iii;iuy gra\e
 
 MERCHANT SHIPS' LOGS AND PROTESTS. 050 
 
 objections there are to tlie taking and extending of Protests as at 
 present exercised by notaries public. 
 
 The Extended Protest being the document intended to be used 
 as evidence of the circumstances therein narrated in cases where 
 claims are to be made by and against the owners, underwriters, 
 and others interested in ship, cargo, or freight, and being in fact 
 in almost all countries other than the United Kingdom the docu- 
 ment accepted as conclusive evidence in support of the facts on 
 which the claims are made, the drawing it up should be guarded 
 in the most scrupulous way, that the chance be minimised of its 
 being in any way inaccurate, inefficient, or untrue. The present 
 system of preparing the Protest is open to many and serious 
 objections. 
 
 (1) The Protest can be made at any time after the arrival of 
 the ship, thus giving time and opportunity for the master and 
 owner, or others interested, to consult together, and if they are 
 dishonestly inclined, to carefully prepare, or cause to be prepared 
 for them by their legal advisers, a document framed specially to 
 meet some particular necessity, whether it be a claim against their 
 nnderwriters or a defence to an anticipated action for damage or 
 salvage. 
 
 (2) The objection to the manner is also equally grave. In the 
 great majority of cases the draught is sketched out, before the 
 matter comes before the notary, by someone who, although possibly 
 entirely unconnected with the voyage, may nevertheless have an 
 interest in the object to be attained by the Protest, and therefore 
 not be unprejudiced. It is then brought to the notary, and em- 
 bodied by him in formal w^ords, without reference to the log, and 
 without appealing to or questioning anyone but the master ; it is 
 then read over to and signed by those of the crew presented by 
 the master for that purpose, who, though they might, and in all 
 probability would, give a perfectly true version of the facts, if 
 questioned by the notary, yet do not hesitate in their wcll-knoMTi 
 careless manner to sign what is presented to them by an official, 
 though it may contain incorrect or indeed utterly false state- 
 ments. 
 
 (3) Again, as to the person who prepares the Protest — the
 
 G60 MARITIME LEGISLATION. 
 
 notary public. He is a private individual, one of a large number 
 of the same profession, any one of whom may equally well prepare 
 anv particular Protest. Now, in the case of a master, who wishes 
 to make a shuffling or untrue Protest, coming to one of these 
 notaries what power has the latter, if he has his suspicions as to 
 the truth of the tale, to prevent a Protest being made in the terms 
 desired ? He may demand the log-book, he cannot compel its pro- 
 duction ; he may examine those of the crew brought to him, he 
 cannot require the appearance of others not brought ; whether he 
 ma}' even swear the appearers is a matter of doubt. He may in- 
 deed, as a last resource, refuse to draw up the Protest, and the 
 satisfaction he will then have will be the knowledge that the result 
 of his scrupulousness is that he has lost his fee, and some other 
 less acute or less punctilious notary has received it instead. 
 
 The result of this unsatisfactory state of affairs is that the 
 Protest is for all practical purposes worthless. It may even be 
 said truly that it is worse than worthless, for though from the facility 
 of its being made fraudulently it may contain utterly untrue state- 
 ments, yet it is in appearance a formal and official document ; it is 
 attested and sealed by an official functionary, and, in consequence, 
 faith is placed in it and credit given to it, by many, especially 
 abroad, which it in no wise deserves, and instead of being a pre- 
 ventive o£ fraud, it is actually an official means by which frauds can 
 the more readily be perpetrated. 
 
 The validity of the objections I have herein put forward is well 
 Blio\vn by the case already referred to of ' The Queen v. Minich.' 
 There a Protest was extended at Cork on behalf of an Italian ship. 
 
 The crew were entirely ignorant of the English language, and 
 an interjireter therefore accompanied them to the notary, who was 
 not conversant with Italian. The crew honestly described certain 
 circumstances in connection with the voyage — which description 
 was perfectly in accordance with the statement contained in the 
 ship's log-book — but the interpreter, for reasons of his own, and 
 for the fraudulent purpose of enabling an unjust claim to be made 
 a^'ainst certain und.'rwritors, inserted in his interpretation an en- 
 tircly fictitious account of a stranding of the vessel, which was 
 tli'Triipon (Iniffed into tin* Protrst, jiiid sworn to in ignorance l)y
 
 MERCHANT SHIPS' LOGS AND PROTESTS. 001 
 
 the crew. The log-book was neither required nor produced. Tlie 
 fraud was detected, but the greatest difficulty was experienced in 
 deciding by whom — crew, interpreter, or notary — the fraud had 
 been committed ; and even when the fraud was fixed on the in- 
 terpreter, it was found impossible to find him guilty of perjury, as 
 the right of the notary to swear him was doubtful ; for although, 
 with one exception, all the notaries in Cork were shown to have 
 taken Protests on oath from time immemorial, their authority for 
 so doing could not be proved. 
 
 To remove the objections above described, and to supply an 
 efficient remedy, is by no means an easy task. Reiterated appli- 
 cations on the subject to the Board of Trade have led to no result ; 
 and the chief reason for this may possibly be tliat no practical plan 
 has yet been devised to introduce the requisite alterations in 
 practice, without disregarding the fact of the existence of a very 
 large number of notaries, to whom the drawing of ships' Protests 
 has been a considerable source of income, and who cannot forcibly 
 be got rid of. The folloAving suggestions, the result of very 
 lengthened connection with and very careful consideration of the 
 subject, are offered in the belief that they will effect the desired 
 result, Avithout interfering with or prejudicing the rights of any 
 parties. 
 
 In the first place, as to what should be contained in the Protest. 
 It should in all cases give an exact and accurate transcript of so 
 much of the ship's log as is essential for its compilation. To this 
 should be added such observations or explanations as the various 
 signatories may desire to offer and as the compiler may consider 
 necessary to insert. 
 
 To enable the notary, for he may still be retained as the com- 
 piler, to draw the Protest in the manner suggested, greater 
 official powers must be given to him, and at the same time 
 stringent regulations in the stead of varying customs must be 
 drawn up to govern his conduct of the matter. He must have 
 authority, and moreover it must clearly be laid down as his duty 
 to demand the log, to summon certain members of the crew (to 
 include at least the master, mate, and two others), to examine 
 thtm and all other intended signatories separately, and, most im-
 
 662 MARITIME LEGISLATION. 
 
 portant of all, to administer an oath to each signatory and to the 
 inteii^reters when any are required. 
 
 In order that the log-book may be of practical use, the system 
 now obtaining in this country must be entirely remodelled, the 
 present official log-book should be entirely abolished, and the 
 entries therein prescribed should be made in the ship's ordinary 
 log, which should be kept with the same care as is at present ap- 
 plied to the so-called official log. The use of paged and sealed 
 log-books should be made compulsory, the log-book be written up 
 on board every twenty-four hours, the entry be daily read over in 
 the presence of the master, mate, and two others of the crew, and 
 verified by their signatures. In the event of bad weather pre- 
 venting the completion of this formality during any twenty-four 
 hours, the entry when made should contain a statement to that 
 effect. 
 
 For every voyage of not less than seventy-two hours' duration, 
 and for every voyage of less duration when damage to ship or 
 cargo or both has been sustained or is anticipated, it should be 
 compulsory upon the master to deposit his log-book with the 
 Collector of Customs at the time of reporting his vessel, and not 
 later than twenty-four liours after her first arrival in port ; the 
 date and time of sucli deposit should be noted in the log by the 
 official receiving the report, as also the date and time at which 
 the log is returned to the master on the final outward clearance of 
 the vessel. These formalities might supersede the present system 
 of noling Protests. 
 
 When it is required to extend the vessel's Protest, the notary 
 employed for this purpose should make to the Collector application 
 in writing for the log-ljook upon a form countersigned by the 
 master or agent of the vessel, the log-book to be delivered to the 
 notaiy only. Translations, where such may be required of log- 
 books in foreign languages, should bo prepared by the notary, or 
 by some competent person appointed by and responsible to liim, 
 and the notary should show upon the log-book itself the portions 
 which have been extracted or translated for the purposes of the 
 Protest. The log-book when done with should be returned by the 
 notary direct to the Collcci or of Customs, together with a statement
 
 MERCHANT SHIPS' LOGS AND PROTESTS. GG.3 
 
 of the date when and place wliero the Protest was extended, and of 
 the names of the signatories and of the notary, and such state. nent 
 should remain attached to the ship's report, and be accessible at all 
 times upon written request and payment of a small fee. 
 
 Protests to be made by foreigners not conversant with the 
 English language should be written in 2)arallel columns, and should 
 be read over to the signatories in their own language. 
 
 The Protest should be a public document, and the notary Vjy 
 whom it is extended should be empowered to supply copies to 
 persons requiring the same upon payment of a reasonable fee. 
 
 A regulation that the Collector of Customs on delivering the 
 log to a notary should register the delivery in the log, and that 
 the notary therein named should be the only one capable of drawing 
 that particular Protest, would prevent the possibility of an attempt 
 to influence or coerce a scrupulous notary by a threat held out 
 directly or indirectly of leaving him for a less punctilious one. 
 
 By the adoption of these or similar precautions the Extended 
 Protest would attain, or rather regain its position as a document 
 to be relied on as containing a true statement of facts, and not be, 
 as in many cases it is at present, one framed by the master in 
 conjunction with his owners, their agents or their advisers, either 
 to hold back or conceal the particulars of the occurrences therein 
 referred to to the utmost extent compatible with making any state- 
 ment whatever concerning them ; or, worse still, as it sometimes 
 is, a deliberately false and untrue account of events which never 
 happened at all, instead of an ofEcial and reliable record of the 
 fullest and most complete description of the particular occurrences 
 in it contained, such as it is of the utmcst importance to ship- 
 owners, underwriters, and the mercantile ccmmuuity at large that 
 it should be. 
 
 This memorandum wr.s communicated to the Board of 
 Trade, the principal members of Loth Houses of Parlia- 
 ment, the most important Chambers of Commerce and 
 Underwriting bodies of this Country and the Colonies, and 
 the different replies I received convinced me that it was 
 a subject which w^as generally considered as requiring
 
 664 MARITIME LEGISLATION. 
 
 attention, but that unfortunately the luiblic was not 
 sufficiently alive to its importance. 
 
 Under these circumstances I made use of the Confer- 
 ence of the Association for the Eeform and Codification of 
 the Law of Xations, which took place in August 1879, in 
 the Guildhall of the city of London, to read the following 
 report : — 
 
 Having had frequent opportunities in the pursuit of my jDro- 
 fessional avocation for becoming acquainted with the modus 
 operandi in keeping the log-books on board of merchant ships, and 
 with the manner in which ships' protests are extended, it has been, 
 in the interest of my clients, my duty to call the attention of Her 
 Majesty's Government and of the Chambers of Commerce and 
 Shipping in this country to the necessity of making alteration in 
 the enactments relating to these two important and, as I will 
 shortly show, intimately connected subjects. 
 
 For tliis reason I have been requested by the executive council 
 of this Association to report to you on the state of the law, and 
 as to the steps desirable to be taken for obtaining the necessary 
 alterations in it. 
 
 The log-book on board of merchant ships has been intended 
 from time immemorial to be used for the record of the daily oc- 
 currences during the voyage. Everything of any imaginable 
 interest to the ship, its crew, passengers, and cargo was to be 
 carefully and truthfully recorded in it, commencing with the wind 
 and weather in its minutest details, the course steered, the changes 
 of the tide, and the meeting with other vessels, and ending with 
 any births or deaths or other matters concerning the well-being of 
 crew or passengers. Of course, among other entries, particular 
 reports respecting the loading or the discharging of the cargo, and 
 any accidents happening durin*^ the voyage, were to be made. In 
 short, these log-books, when propei'ly verified by the signatures of 
 the master, the mate, and, according to some legislations, b}' one 
 or more of the crew, were intended to and did obtain all credence 
 fi« piiJiljc and olTicial documents.
 
 MERCHANT SHIPS' LOGS AND PROTESTS, 605 
 
 I then referred to my observations on sections 280 
 and 284 of the Merchant Shipping Act, 1854,^ and con- 
 tinued : — 
 
 It will be also seen that I at the same time called the attention 
 of the public authorities to the necessity for altering the proceed- 
 ings with regard to the extension of ships' protests, a subject 
 which is so closel}' connected with tiie law relating to ships' logs 
 that it cannot be separated from it. 
 
 Since then the attention of the Board of Trade has been twice 
 called to this subject : — 
 
 First (as will be seen by the return to an order of the House 
 of Commons, dated May 15, 1876, for coj^ies of letters and corre- 
 spondence between the Board of Trade and others on the subject of 
 sea protests), by the Secretary of Lloyd's, wlio, addressing the 
 Board of Trade on December G, 1875, called their attention to the 
 ver}^ unsatisfactory manner in which sea protests were prepared, 
 and drew up the following five objections to the present plan of 
 extending protests by a notary, viz. : — 
 
 ' 1. That it may be made at any time after the arrival of the 
 ship, and that it may be and is often framed to meet a particular 
 necessity. 
 
 ' 2. That it is made by a notary who is not comi^etent to verify 
 or correct a statement. 
 
 ' 3. That in the absence of a central office where protests might 
 be registered, opposing owners and captains, notably in collision 
 cases, apply to different notaries and declare to different state- 
 ments, and, later, swear to them in a court of law. 
 
 ' 4. That faith is not given to a protest which such a document 
 ought to command, owing to the many known and many suspected 
 cases of fraud which have been brought to light. 
 
 ' 5. That the formality of a notary's seal and signature may 
 have the effect in many cases, especially abroad, of giving faith where 
 no ftiith ought to be given.' 
 
 The Secretary of Lloyd's suggested that a public official at the 
 custom-houses should be clothed with a proper authority for 
 extending ships' protests, and made some other very valuable 
 
 ■ Vide p. 542.
 
 GGG MAr.ITIME LEGISLATION. 
 
 suggestions, in wliicli he was supported by the present Wreck 
 Commissioner, the Liveqjool Underwriters' Association, someotlicr 
 equally important bodies, some leading solicitors, and by me. 
 
 Unfortunately, for reasons not difficult to guess, no legislation 
 on the subject was then or has ever yet been attempted. 
 
 The second attempt to move in the matter was made by my 
 issuing a memorandum in October 1878.^ 
 
 This memorandum I caused to be presented to the Board of 
 Trade and to those of Her Majesty's Ministers, and the members of 
 both Houses of the Legislature who could be expected to take an 
 interest in the subject ; to all the most important bodies of Under- 
 writers, and to the Chambers of Commerce and of Shipping. It 
 was most favourably commented upon by the public press, and was, 
 with few exceptions, in general so satisfactorily received, that I 
 considered myself authorised to write the following letter to Lord 
 Sandon, the President of the Board of Trade, on January 10 last : — 
 
 ' Relying on the promise your Lordship gave me, that the con- 
 tents of the memorandum I took the liberty to submit to you on 
 the above subject on October 4 last should have your personal 
 attention, I consider it my duty to state that out of a number of 
 communications I received from public bodies and private indivi- 
 duals, criticising the proposals contained in the memorandum 
 above alluded to, very few deny the desirability of an alteration of 
 the law as far as the extension of "merchant ships' protests" is 
 concerned ; and those which really do, base their objection on the 
 ground that as British shipowners as a rule are honourable men, 
 and as in this country protests are not considered as conclu- 
 sive evidence of the facts on which claims are made, there is no 
 necessity for any legislation on the subject. 
 
 ' Now I need not point out to your Lordship the fallacy of such 
 an argument. 
 
 ' The trade of this country brings the vessels not only of British 
 shipowners but of others within its territory. The Britit^li banker, 
 merchant, or underwriter is, through the ramifications of his 
 transactions, bound, not by law indeed, but by the equally stringent 
 unwritten code of business honour, daily to pay large amounts on 
 
 ' Vide ante, p. 058.
 
 MERCHANT SHIPS' LOGS AND PROTESTS. GG7 
 
 tliG fiiitli of mercli!Uit sliips' protests if properly prepared in 
 accordance with the hiws and customs of the pkice of issue. 
 
 ' As the only safeguard for such banker, merchant, or under- 
 writer is supplied by tlie notarial seal attached to the protest, and 
 as it is impossible for any such individual to do more than to see 
 that the document in outward appearance shows no sign of fraud, 
 the Government of the country in which such documents are 
 issued is bound to take every care that the chances of fraud in the 
 issue of each document are minimised. 
 
 ' It is true that in a British court of law a merchant ship's pro- 
 test is not taken as conclusive evidence of the facts therein related, 
 but it is well known that only a very small proportion of the cases 
 in which such protests are all-important become subject to litiga- 
 tion, and the far greater number, not being litigated, are decided 
 on the statements made in these protests, and depend entirely on 
 their bona fides ; furthermore, your Lordship will bear in mind 
 that in all foreign courts of law a merchant ship's protest is taken 
 as conclusive evidence. How dangerous it is, therefore, to allow 
 the present state of things (vide Parliamentary Return of May 15, 
 1876) to continue! 
 
 ' In one of the suggestions I made in my memoranduiu, at the 
 bottom of page 2, that — 
 
 ' " The entry be daily read over in the presence of the master, 
 mate, and two others of the crew, and verified by their signa- 
 tures," ' 
 
 I understand special objection has been taken, and that some of 
 the Elder Brethren of the Trinity House are of opinion that the 
 carrying out of the suggestion would be subversive of discipline 
 on board. If this view be correct, the withdrawal of this special 
 suggestion can be no impediment to the introduction of the 
 general reform of which I think I have demonstrated the para- 
 mount necessity. 
 
 '■ With these observations I recommend this very important 
 subject to your Lordship's most serious consideration.' 
 
 It may be considered that in this letter every objection, as far 
 as stated, to my proposals has been answered, but nevertheless up 
 
 ^ These words are printed in italics in the Memorandum.
 
 668 MARITIME LEGISLATION. 
 
 to this present day no change has taken place, no suggestion has 
 been officially made to bring these difficulties to a satisfactory 
 solution. 
 
 Strangely enough the Council of the Incorporated Law Society 
 in their last report to the general meeting of their members on 
 July II last, suggested that a Bill should belaid before Parliament 
 to enable solicitors to undertake notarial duties without having 
 qualified themselves in the manner at present prescribed by law. 
 In answer to this the public notaries of London issued a printed 
 memorandum in which they state their objections to that proposal 
 of the Incorporated Law Society, and I cannot help expressing the 
 opinion that, notwithstanding the respect and confidence I have 
 for some of those who in some towns of the United Kingdom 
 combine the positions of solicitors and notaries in their own 
 persons, I see very grave objections to such a proposal as that of 
 the Incorporated Law Society. It must be borne in mind that a 
 notary is a public officer who must act pro bono imhlico impartially 
 and independently, whereas a solicitor in his professional capacity 
 and in his usual course of business is liable to be the legal adviser 
 of some or other of the parties to a mercantile transaction affected 
 by the circumstances related in the protest. Now if in such a 
 case he draws up the ship's protest he must be more than human if 
 he is able to separate the usual animus which ought to insj^ire all 
 his actions in the interest of his client from the official notarial 
 work he attempts to perform. 
 
 I mention this circumstance in order to show that the matter 
 brought herewith under your notice must sooner or later come 
 under the consideration of Her Majesty's Government, and that 
 it is, therefore, high time to consider how this subject may most 
 efficiently and beneficially be pressed forward. Of course public 
 opinion will do most, and I therefore beg of you to do your utmost 
 to assist in carrying some such joroposal as mine into effect. 
 
 A copy of this report was also communicated to aU 
 tlie parties likely to take an interest in this important 
 matter. In February 1880 I was given to understand 
 that a negotiation had been initiated by the Imperial
 
 MEr. CHANT SHIPS' LOGS AND PROTESTS. 6G9 
 
 German Government with our own, with the object of 
 securing by treaty arrangements the taking legally bind- 
 ing evidence within the jurisdiction of the two countries. 
 I then transmitted to the Foreign Office a copy of the above 
 report and suggested that this opportunity should be used 
 for entering into an international arrangement for the im- 
 provement of the existing system of preparing, swearing, 
 and issuing merchant ships' protests. 
 
 The whole result of this attempt was that I heard from 
 the Foreign Office, on March 10, 1880, ' that Lord Salisbury 
 has been informed by the Board of Trade that, whilst in 
 their opinion some of your suggestions and criticisms 
 deserve consideration, they do not see their way to dealing 
 with the subject at present.' 
 
 Since that time nothing has been done, and all the 
 circumstances remain as heretofore, waiting for the im- 
 provement which the parties interested in the maritime 
 commerce of this country and the colonies have a right 
 to expect.
 
 670 MAIUTDIE LEGISLATION. 
 
 VAEIOUS PAPERS SHOWING HOW MOST OF 
 THESE SUBJECTS HAVE BEEN URGED 
 UPON THE BOARD OF TRADE. 
 
 To show liow many years ago tlie reforms suggested in 
 these pages have been urged upon the Board of Trade, I 
 print the following letter and documents sent by me to the 
 Board in 1867 : — 
 
 15 Fenchurch Buildings, London : June 4, 1867. 
 
 My Lords, — The kindred subjects of wreck and salvage, and 
 the amendment of our law of merchant shipping, have of late en- 
 grossed so large a share of public attention, that I feel sure I need 
 utter no apology for assuming that they have been, and continue 
 to be, favoured with the most particular consideration of the Board 
 of Trade, and that any suggestions or expressions of opinion bear- 
 ing upon the question will bo favourably received and carefully 
 considered. 
 
 It is to-day my duty, in my capacity as Kepresentative for the 
 United Kingdom of Great Britain and Ireland of influential foreign 
 underwriters,' whose interests I protect in the same manner as the 
 Salvaere Association those of certain bodies of underwriters in 
 London and elsewhere, to lay before your Lordships memorials from 
 so many diflerent quarters, bearing signatures so numerous and 
 respectable, that I cannot but think that your Lordships will be 
 astonished at the universality and extent of feeling aroused upon 
 these suljjects in countries and places which have, in mercantile 
 
 ' The Boards of Underwriters and Insurance Companies of Amsterdam, 
 Antwerp, Bremen, Liibcck, New Orleans, New York, Eostock, Stralsimd, and 
 otlierH.
 
 LETTER TO BOARD OF TRADE, 671 
 
 matters, generally shown a very deep-rooted antagonism one to the 
 other. 
 
 These memorials, forwarded to me from Amsterdam, Antwerp, 
 ]5rL'inen, Colborg (with Stolp ami Riigeuwalde), Copenhagen, 
 Danzig, Hamburg, Liibeck, Rostock, and Rotterdam, I have been 
 desired to lay most humbly before your Lordships and Her Majesty's 
 Government, and I venture to hope that the sentiments therein 
 expressed may be of service in accelerating the introduction of a 
 reform so long wanted and so universally desired. 
 
 It would not become me to take this opportunity of recapitu- 
 lating at any length the arguments and opinions which have been 
 already expressed by myself on different occasions, and especially : 
 
 In 18Gi in a memorial on the subject of the importance 
 of the Receivers of Wreck taking depositions from shipmasters 
 of all nations, which memorial was adopted by the Salvage 
 Association of Lloyd's and others,^ 
 
 In 1866 in my observations on the Merchant Shipping 
 Act, &c., forwarded to the Right Hon. Sir Stafford Northcote, 
 on December 16 last,^ and 
 
 In the present year, in my observations on the Admiralty 
 Jurisdiction Bill, forwarded to the Right Hon. Stephen 
 Cave on April 16.^ 
 
 Even more recently by Mr. Harper, the secretary to the Salvage 
 Association above referred to, in his able and convincing report 
 on the subject of wreck and salvage on the coast of Kent, more 
 particularly in reference to the case of the ' North,' and by many 
 other associations and private persons of far greater capacity and 
 influence than myself. 
 
 I must ask permission, however, to recapitulate the principal 
 points upon which my daily experience tells me that amended 
 legislation is imperatively necessary, as will, I think, sufiici(>ntly 
 appear upon reference to the papers, documents, and opinions 
 above referred to. 
 
 1. The ship's log-book — instead of the present official and 
 ' Vide p. 655. * Vide p. 527. ^ Vide p. lo3, 2nd edition.
 
 672 MARITIME LEGISLATION. 
 
 ordinary log-books kept on board every vessel, one log-book 
 only to be kept, in a form issued by Government, and duly 
 stamped, signed, and registered, so as to be beyond all possi- 
 bilitv of fraud ; this regulation has been long introduced in 
 many parts of the Continent. 
 
 2. The dejDosition before the Receiver of Wreck to be 
 compulsory upon Shipmasters of all Nations. 
 
 3. The mode of extending protests to be amended. 
 
 4. The duties of Receiver to be in all cases discharged by 
 the Collectors of Customs, whose general efficiency cannot be 
 too highly praised. But I cannot refrain from suggesting 
 the necessity of raising the salaries of these very valuable 
 officials, who are too frequently inadequately remunerated for 
 the arduous duties they have to perform, in most cases requiring 
 all their energy, ability, and discretion ; a ship^vreck may at 
 any moment place in their hands the control of property to 
 an amount gi-eater than in the ordinary course of business 
 would come before them in twenty years. I have known a 
 case, which probably is not singular, where a Collector of 
 Customs, instead of receiving extra payment for performing 
 the important duties of Receiver, has actually been subjected 
 to pecuniary loss, forfeiting during his absence from his own 
 place of business the emoluments for overtime which he was 
 entitled to claim from the public requiring his services, 
 
 5. The same limits to be assigned to the districts of 
 Receivers and Principal Officers of Coastguard, in order to 
 j)romote more harmonious working and more efficient substi- 
 tution in case of absence. 
 
 6. The Coastguardsmen to be moved more frequently 
 from one station to another. 
 
 7. In all prosecutions for plunder or illegal receiving of 
 wreck, &c., the obligation to be on defendant to prove lawful 
 possession, as in clauses 210, 215, 215, 305, and 30G of the 
 Customs Consolidation Act. 
 
 8. A pronqit and inexpensive mode of settlement of salvage 
 claims to be introductcd, and costs never to be allowed to 
 salvors when they without due cause apply to higher tribunals
 
 LETTER TO BOARD OF TRADE 673 
 
 than absolutely necessary. The shamefully extortionate 
 cleraands made by boatmen themselves, or, even more fre- 
 quently, by professional or quasi-professional advisers on their 
 behalf, have been fostered into a national evil by the want of 
 local tribunals and by the absolute unwillingness of the 
 present learned Judge of the Admiralty Court to condemn 
 salvors in costs. Nor are these claims generally resisted, for 
 the simple reason that all the parties concerned receive their 
 commission in proportion to the amount paid, a ship's agent 
 being frequently entrusted with the care of the interests both 
 of salvor and ship, and receiving from both his payment, 
 
 9. Official surveys of damage to ships or cargoes by com- 
 petent persons appointed by the Receiver to be provided for, 
 and, if possible, rendered compulsory in every case ; but, if 
 not, the power of undentr iters and their representatives to 
 call for such surveys to be distinctly recognised. This will 
 be the most effectual method of putting a stop to the present 
 sj'stem of improper discounts, where fifteen or twenty, or even 
 more per cent, are allowed and divided between the dishonest 
 shipmaster and his even more culpable adviser, to the pre- 
 judice of the absent owners and underwriters. 
 
 10. The limited liability legislation of the Merchant 
 Shipping Act Amendment Act, having given rise to decisions 
 directly contrary to some of the fundamental principles of 
 International Law, and having been the means of inflicting 
 great injury upon the interests of the less wealthy class of 
 shipowners, to be immediately reconsidered and revised. 
 
 11. Seriously to consider the necessity of pointing out 
 to the foreign Governments who complain of the irregularities 
 on our coasts in matters of Salvage and Average, how much 
 they could assist in putting down those abuses by the o-eneral 
 adoption of our system of making a]i])()iii(monts of paid con- 
 sular officers only, as it is evident from the wording of the 
 Clauses in the Treaties concluded with reference to the 
 functions appertaining to these officers, that it was never in- 
 tended to entrust their execution to parties who would derive 
 any pecuninry advantage from the advice thev were called 
 
 X X
 
 074 MAPJTIME LEGISLATION. 
 
 upon to give either in a ministerial or ju:licial capacity, b:it 
 at any rate in a perfectly impartial manner. 
 
 12. Tlie introduction into this country of the Inter- 
 national General Average Rules adopted at York in 1864, 
 and repeatedly brought under the notice of Her Majesty's 
 (Tovernment by the United Chambers of Commerce of this 
 country and other influential bodies. 
 
 18. The preparing and settling of average statements 
 should be under the immediate control of a public department, 
 say, for instance, the Registry of the High Court of Admiralty, 
 and the adoption of the very useful enactments of the 
 German Law cannot be too strongly recommended. 
 
 14. The imperative necessity of doing away with com- 
 pulsory Pilotage, and of altering the present system of grant- 
 incr and renewing Pilots' licenses in a manner more suitable 
 to the public requirements. 
 
 15. The making away with, or aiding and abetting in 
 scuttling, or otherwise destroying, a vessel for the purpose of 
 defrauding its Underwriters or those who have an interest 
 therein, or in the cargo or freight, should, by agreement be- 
 tween the principal maritime nations, be declared an Act of 
 Piracy, otherwise no possibility exists of putting a stop to 
 these fraudulent practices, which have for the last fifteen 
 years been so greatly on the increase, and are the more 
 difficult to prevent, as present legislation is continually de- 
 feated in its attempts to punish wrong-doers by questions of 
 jurisdiction. 
 
 10. The Masters, Mates, and Engineers of 'Colonial 
 Ships ' to be under the same regulations respecting exatni na- 
 tions and certificates as those of ships hailing from the 
 United Kingdom. 
 
 17. The adoption of the International Law of Affreight- 
 ment as agreed upon at Sheffield, 1865. 
 
 18. To consider if it would be desirable to fix by legislative 
 enactment, as in the German Law, for instance, has been 
 very successfully done, what should constitute a claim for 
 assistance, nnd wh;it fbi- salv.-ige.
 
 LETTER TO BOARD OF TRADE. 675 
 
 How this amended legislation is to be brought about is not for 
 nie to suggest, bat it has often struck me that to perform the work 
 efficiently, the issuing of a Royal Commission would be necessary, 
 which would in([uire into the above evils so repeatedly complained 
 of, would soon obtain the clear evidence of their existence, and 
 would consider and recommend the fullest means to accomijlish a 
 thorough reform. 
 
 Your Lordships will always find me ready and willing to assist 
 in any work leading in that direction. 
 
 I have the honour to be, my Lords, most respectfully, your 
 Lordships' obedient humble Servant, 
 
 Ernst Emil Wendt. 
 
 The Lords of the Committee of Her Majesty's 
 Privv Council for Trade, Whitehall. 
 
 The enclosures in the above were as follow : — 
 
 We, the undersigned, being Underwriters of the port of Amster- 
 dam, in the Netherlands, having been informed that Her Majesty's 
 Government have it in contemplation to alter and amend the exist- 
 ing regulations witli respect to wrecks, salvage and salvors, and to 
 make better provision for the settlement of salvage claims, and for 
 the management of matters relating to vessels in distress on the 
 coasts of the United Kingdom, do hasten to express to Her Majesty's 
 Government our grateful sense of the inestimable benefit which will 
 be conferred upon the maritime interests of the whole world by the 
 proposed "legislative reforms, if carried out in a practical and 
 effectual manner. 
 
 We may be pardoned for observing that the frauds practised 
 upon our captains in many parts of the coast of the United Kingdom, 
 the extortionate demands of salvors and their advisers, the un- 
 scrupulous manoeuvres of shipping agents, the continual induce- 
 nients to dishonesty held out to inexperienced shipmasters, and, 
 lastly, the enormous outlay attendant upon legal proceedino-s, 
 aggravate to a most serious extent the consequences of misfortunes 
 unavoidably attendant upon maritime industry ; and havino- our- 
 selves suffered severely from the evils ahnve described, we cannot 
 
 X X 2
 
 G76 MARITIME LEGISLATION. 
 
 but rejoice that Her Majesty's Government have appreciated the 
 necessity of carrying out a thorough reform, whicli we have no 
 doubt will be attended with credit to the country and advantage to 
 the community at large. — Am>^terdam, February 18G7, with forty- 
 nine signatures of the leading underwriters. ^ 
 
 A memorial identical with the above from Bremen, February 
 
 1867, signed by sixty-six gentlemen, representing the 
 
 Directors of all the insurance companies and the principal 
 
 merchants. 
 
 A memorial identical with the above from Colberg, February 
 
 20, 1867, signed by the four principal shipowners. 
 Riigenwalde, February 23, 18G7, signed by the four principal 
 
 shipo\NTiers. 
 and Stulj), February 27, 1867, signed by the two principal 
 
 shipowners. 
 A memorial identical with the above from CopeyiJiagen, signed 
 by thirty-seven gentlemen representing the principal 
 underwriters, shipowners, and merchants. 
 A memorial identical with the above from Danzig, February 
 10, 1867, signed by twenty-seven shipowners and mer- 
 chants. 
 A memorial identical with the above from Ilamhuni, signed 
 by fifty-nine gentlemen representing the different in- 
 surance and steamship companies as well as the prin- 
 cipal bankers, merchants, and shipbrokers. 
 A memorial identical with the above from liostocl; February 
 1867, signed by sixty-two shipowners and underwriters. 
 A memorial identical with the above from Rotterdam, Febru- 
 ary 1867, signed by the representatives of fifty insurance 
 companies and mercantile establishments. 
 
 Les soussio-nes armateurs et assureurs du Port d'Anvcrs en 
 Beh'ique ay ant eto informus que le Gouvernement de Sa Majeste 
 
 ' The names of the parties who signed these memorials having been 
 fully vrinted in the two previous editions, it is supcrlhious to repeat them 
 here.
 
 MEMORIALS. 677 
 
 bvitannique a I'intention de changer et d'amender les lois existantes 
 pour les cas de iiaufrage et le reglement des services rendus par 
 les sauveteurs a des navires en detresse sur les cotes du littoral 
 anglais, s'empressent d'exprimer au Goavernement de Sa Majeste 
 britannique leur gratitude pour Timmense bienfait qui resulterait 
 de cette mesure pour les interuts maritimes du monde entier si les 
 reformes legislatives projetees etaient pratiquement et efficacement 
 mises k execution. 
 
 Qu'il leur soit permis d'observer que les fraudes auxquelles nos 
 capitaines sont sujets sur differents points des cotes du lloyaume- 
 Uni et les demandes exorbitantes des sauveteurs et de leurs 
 conseillers sont aggravees surtout par les manoeuvres deloyales des 
 agents maritimes. 
 
 Les enormes depenses qu'entrainent des poursuites judiciaires 
 rendent cet etat de clioses fort difficile a remedier ; les interesses 
 preferent se soumettre a un accord qnelque desastreux qu'il soit 
 plutot que de s'engager dans un long et couteux proces. 
 
 Les soussigues ayant ete eux-memes victimes de cet etat de 
 clioses deplorable, ne peuvent que se rejouir de la decision prise 
 par le Gouvernement britannique de pousser a line rcforme 
 serieuse, immense bienfait tant pour le pays meme que pour le 
 commerce etranger en general. — jbivers, 13 Fevrier 1867. Signed 
 by the representatives of tvi^enty-five insurance companies and 
 mercantile establishments. 
 
 AN DIE UOHE EEGIERUNG IHRER MAJESTAT DER KOISIGJN VON 
 GROSSBRITANNIEN UND IRLAND. 
 
 Mnjehene Vorstellung cler unterzeiclineten Seeversicherer, Scldffsrlieder 
 unci Kaujleuie zu Lilheck. 
 
 Die unterzeichneten Seeversicherer, Schiffsrheder und Kaufleute 
 zii Liibeck haben erfahren, dass die hohe Eegierung Ihrer MajestJit 
 der Konigin von Grossbritannien uud Irland beabsichtigt, die jetzt 
 bestehenden Regulative fiir die Behandluug von Schiffbriichen 
 Bergung aus Seenoth und Bergerlohn zu iiuderu uud zu ^•er\•oll- 
 kommuen, sowie auch bessere Maassregeln zu treffen fiir die
 
 078 MARITIME LEGISLATION. 
 
 ErlediguDg von Bergelolm-Anspruchen unci fiir die Handhabung 
 der An^elegenLeiten, die sicL auf ScliifFe beziehen, welclie sich an 
 den Enfflischen Kiisten in Seenotli befinden, und eilen, der liohen 
 Regierung Hirer Majestat der Konigin von Grossbritannien und 
 Irland unsere dankbare Anerkennung der unschiitzbaren Wohlthat 
 auszuspreclien, -o'elclie den Interessen zur See der ganzen Welt 
 durcli die beabsiclitigten legislativen Reformen zu Tlieil werden 
 wird, wenn sie in practisclier und wirksamer Weise ausgefiilirt 
 werden. 
 
 Es wird verzeiblicli sein, wenn wir bemerken, dass die Betrii- 
 gereien, welclie gf'gen unsere Scliiffer an manchen Punkten der 
 Englischen Kuste veriibt werden, die gelderpresserisclien For- 
 derungen der Berger und ilirer Rathgeber, die gewissenlosen 
 KunstgrifFe der Agenten, die bestandigen Verlockungen zur 
 Unelirliclikeit, deuen unerfabrene Scliiffer ausgesetzt sind, und 
 scbliesslicli die enormen Auslagen, welclie mit dem gericlitliclien 
 Verfahreu verkniipffc sind, in hoheni Grade die Unfalle noch 
 verscliliinmern, welclie sclioii unvermeidlicb mit der Scliiflfahrb 
 verkniipft sind ; wir konnen daber uns nur freuen, dass die liolie 
 Regierung Ihrer ]\lajestat der Konigin von Grossbritannien und 
 Irland sich von der Notliwendigkeit einer griindliclien Reform 
 iiberzeugt bat, und zweifeln nicht, dass dieselbe fiir England 
 riihmlich und fiir alle, die Interessen zur See haben, niitzlich sein 
 werde. — Liil'ccJi, dun IG Februar 18G7. Signed by thirteen 
 representatives of insurance companies and mercantile establish- 
 ments. 
 
 The Committee of the Merchant Societ}', Copenhagen : 
 March 5, 18G7. 
 
 Sir, — In your letter of 17tli last month you have been pb ased 
 to inform the Committee that you have learned from London lliat 
 th(; British Government have intended to lay before the pres;'iit 
 ]^arliament several proposals, with the view of improving the 
 Maritime Laws hitherto in force in Great Britain, and you submit 
 to this Committee whether tlie same sliould not have an occasion 
 — like similar ;Mit Imrit ics abroad bav(^ bad — to give tlicir ojiiniou
 
 MEMOKIAl.S. r.ry 
 
 for the purpose of promoting- such a reform of the law in England, 
 and specially for the purpose of contributing to an improvement 
 of the British law respecting saving, salvage, and ('ourt charges 
 for settling maritime {|U(stions of dispute. In c()ns('(iuence hereof 
 the Committee beg leave to express that they lully approve of the 
 wish that the British law in the said respect should undei-go an 
 essential reform. It is a well-known fact, to any one who has 
 been so unfortunate to have been phiced niid.r those circuii stances, 
 that the detriments and losses to which the seafaring p( rson and 
 the shipping is subject on the British coast is not a little increased 
 by the deficient mode of proceedings in such cases. The expenses 
 connected with the saving alone to the salvors and their assistants 
 generally consume too great and inadequate a portion of the value 
 saved. The want of sufficient laws to regulate the mode of pro- 
 ceedings further exposes the owners and others concerned, through 
 ships' agents and otherwise, to considerable loss ; and to seek 
 recourse, by means of law proceedings, is connected with so great 
 expenses that merely from this reason this course is in many cases 
 inexpedient. We therefore do not doubt that a reform might be 
 effected which would be received here, as well as other places, 
 with thankfulness by all persons interested in shipping and trade. 
 This is the opinion we are ready to give, but we are not certain 
 whether it would be proper to forthcome direct with the same to 
 any authority in England, partly because we do not know how far 
 such a course would meet with approval, partly because we are 
 uncertain whether such a course should not be taken through our 
 own Government ; but, authorising you to make use of the present 
 as you may think proper, we beg to limit our answer to these 
 lines. Signed by twelve merchants. 
 
 To S. Gram, Esq., 
 Manager of the Copenhagen Maritime Insurance Association. 
 
 For a true and faithful translation of the Danish original produced 
 to nie. 
 
 C. W. Lange, 
 Translator duly sworn and admitted. 
 
 Copenhivgeu : March 14, lbb7.
 
 680 MAHITIMK LEGISLATION. 
 
 It may he added that an identical memorial to the one 
 previously printed, dated Amsterdam, February 18G7, 
 was received by me from New Orleans with the signatures 
 of twenty-five representatives of marine insurance com- 
 panies and merchants, and transmitted by me to the Board 
 of Trade on June 24, 1867.
 
 681 
 
 XI. 
 
 APPELLATE JURISDICTION L\ MAIUTIME 
 
 CAUSES. 
 
 This is another matter in which, according to my humble 
 opinion, serious reform is required. My reasons were fully 
 given in the following memorandum, which I sent on 
 October 31, 1876, to the principal members of both Houses 
 of Parliament and the Chambers of Commerce in this 
 country and the colonies : — 
 
 Towards the close of the last Session of Parliament, the Legisla- 
 ture passed, in the 39 & 40 Vict. cap. 59, an Act which, by effecting 
 a radical change in the hearing of appeals in Admiralty causes, 
 affects the general maritime interests of this and many other 
 countries most injuriously. 
 
 The change complained of is this : Hitherto in causes brought 
 before the Admiralty tribunal in England, one appeal only has been 
 thought necessary, and one appeal only has there been, but now by 
 this Act it is enacted, for what reasons it is hard to say, that hence- 
 forward there shall be, in addition to the existi'ng appeal, a second 
 one, viz. to the House of Lords, quite unnecessary for the perform- 
 ance of justice in those causes, and unasked for by all those 
 most interested in having justice performed therein. 
 
 Representing in this country the principal foreign underwritino- 
 bodies in the world, and perceiving at once how their interest 
 would be prejudiced by this unfortunate innovation, I addressed a 
 letter, on August 29 last, to the Lord Chancellor, calling the atten- 
 tion of his Lordship to the following facts and reasons to which it 
 is now my wish to draw more general attention, namely — 
 
 That at no time, either when the appeals in maritime causes 
 went in accordance with the Act 25 Hen. VIH. cap. 19, to the
 
 682 MARITIME LEGISLATION. 
 
 High Court of Delegates, or in accordance with the Act 2 & 3 
 Will. IV. cap. 92, to His Majesty in Council, or in accordance with 
 the Act 3 & 4 Will. IV. cap. 4J, to the Judicial Committee of the 
 Privy Council, at no time when the final appeal lay to any one of 
 these varied tribunals had it been considered or even suggested 
 that a second appeal was necessary or even might be beneficial ; 
 
 That the fact that this was the case until the passing of 36 & 
 37 Vict. cap. 66^ was a strong proof of the adequacy and efficiency 
 of the single appeal in such causes, and the absence of any wish 
 on the part of the suitors to have any second appeal ; 
 
 That, as a matter of fact, the suitors in Admiralty causes did 
 not want any alteration in the procedure so far as concerns appeals 
 therefrom, and were, on the contrary, much opposed to any second 
 appeal ; 
 
 That the very Act — the one already referred to — which first 
 clearly throws this burden on the suitors in Admiralty causes, 
 excepts, in its 12th section, all causes in the Courts of Ireland and 
 Scotland from liability to review by the House of Lords which had 
 not been liable to it before ; 
 
 That it is, therefore, an act of great hardship on the part of the 
 British Legislature to the suitors in Admiralty causes in England 
 to place them not only in a worse position than they have been for 
 centuries past, but also in a worse position than that so reserved to 
 suitors in the Courts of Ireland and Scotland ; 
 
 That the foreign underwriters, whose representative I am, were 
 all most anxious, and that I was confident the maritime constitu- 
 encies of this country were so also, to be freed from this most 
 expensive, unnecessary, and cumbersome innovation ; 
 
 And I, finally, prayed his Lordship to consider the necessity of 
 obtaining the passing of an Amendment Act to reinstate the pro- 
 cedure of Admiralty causes on appeal into the same position as 
 before the passing of 38 & 39 Vict. c. 77. 
 
 The answer I received to my communication was as follows : — 
 
 ' 5 Cromwell Houses, S.W. : September 7, 187C. 
 ' Sir, — -I am directed by the Lord Chancellor to acknowledge 
 the receipt uf your letter of tlu; 2*Jth ult. upon the subject of 
 "Appellate Jurisdiction in .Maritime Causes."
 
 APPELLATE JUPJSDICTION IN MARITIME CAUSES. G83 
 
 'I am, in reply, to iufonu you that the jurisdiction in Ad- 
 miralty having, Ly llie Judicature Act of 1873, been made a 
 part of the general jurisdiction of the High Court of Justice, the 
 procedure of ap])eal is now tlie same in Admiralty as in other 
 causes. 
 
 ' I am, Sir, your obedient Servant, 
 
 (Signed) ' IIenuy J. L. Graham, 
 
 ' Principal Secretary.' 
 
 Now, it nmy be asserted that the right of appeal to the House 
 of Lords is not a burden but a privilege. It may be so in some 
 cases and to some extent ; but it is a burden none the less still 
 more frequently and to a much greater extent. The greatest 
 privilege suitors can have is for their cases to be settled as justly 
 as possible, but, above all things, with the least possible loss of 
 time and money. Every extra and unnecessary appeal causes 
 direct loss both of time and money to the suitors, and is therefore 
 a burden to them ; and in this case, where the appeal under dis- 
 cussion is to the House of Lords, and therefore both costly and 
 tedious, the burden is very heavy indeed. 
 
 It must be remembered that the tendency of recent legislation 
 has been to limit the liability of shipowners ; and the accretion of 
 costs will not in any way increase the extent of the remedy to be 
 obtained by litigation. 
 
 It is tvident, therefore, that these who are obliged to become 
 suitors in the Admiialty Division of the High Court of Justice of 
 England have two serious grounds of complaint : 
 
 Firstly : That they have become burdened with the great ex- 
 penses and delays of an unnecessary second appeal, to the House 
 of Lords, although during the centuries in wliit-li thry liave had 
 the one single appeal they have never desired, and they do not now 
 desire, any second a])peal. 
 
 Secondly : That they have leen so burdened while such suitors 
 as in the Courts of Ireland and Scotland enjoyed the privilege of 
 being exempt from the appeal to the House of Lords have con- 
 tinued to retain their privilege. 
 
 It is not maintained that any advantage accrues to anyone by
 
 684 MARITIME LEGISLATION, 
 
 the creation of this grievance ; but the only reason which is and 
 can be assigned for it is the asserted desirability of a uniformity 
 of practice between the Admiralty Division and the other Divisions 
 of the High Court of Justice. 
 
 It is for this utterly inadequate reason, then, that while every 
 enli'srhtened Government is doing its best to lessen the burdens 
 which are the inseparable, or rather the natural consequences of 
 commerce and trade, a burden so heavy is laid on two of the prin- 
 cipal handmaids of commerce and trade — the Shipping and the 
 Underwriting interests. 
 
 In consequence of this memorandum numerous com- 
 munications have been addressed to me, expressing ap- 
 proval and gratitude for my ventilating this subject and 
 putting it in its proper light, but the status quo has not 
 been altered and the grievance remains.
 
 APPENDIX.
 
 APPENDIX. 
 
 GEiaiAN GENERAL MERCANTILE LAW/ 
 
 FIFTH BOOK. 
 CONCEENING MARITIME COMMERCE. 
 
 FIRST PART. 
 
 General Provisions. 
 
 Art. 432. A Register is to be kept of all vessels intended for profit 
 by means of sea voyages, and entitled to carry the counti-y's flag. 
 
 The Register is public, its inspection being permitted to everybody 
 during the ordinary office hours. 
 
 Art. 433. An entry in the Register can only be made after the 
 right of carrying the country's flag has been estal)lished. 
 
 Before entry in the Register the riglit of carrying the country's 
 flag cannot be exercised. 
 
 Art. 434. The laws of the various countries point out tlie require- 
 ments upon which the right of a vessel to carry the country's flag 
 depends. 
 
 They appoint the authorities which have to keep the Register of 
 shipping. 
 
 They decide whether, and under what conditions, the entry in the 
 
 ' By the law respecting the constitution of the German Emi^ire of April 16, 
 1871, and the law respecting the introduction of the North German Confederation 
 Laws into Bavaria of April 22, 1871, the German General Mercantile Law Code 
 obtained authority in the whole domain of the German Empire as the law of the 
 Empire -with the modification that where it mentions the North German Confede- 
 ration, its constitution, borders, members or states, constitutional organisation, 
 officials, flags, &c., the German Empire and its corresponding applications must 
 be understood.
 
 688 MARITIME LEGISLATION. 
 
 Register of shipping of a vessel acquired from a foreign country may- 
 be provisionally replaced by a consular document. 
 
 Art. 435. The entry in the Register shall contain — 
 
 (1) The facts on wliich the riglit of the vessel to carry the coun- 
 
 try's flag is based. 
 
 (2) The facts required for establishing the identity of the ship, and 
 
 all matters concerning its ownership. 
 
 (3) The sea-port from which the vessel is intended to hail. (Home 
 
 port. Port of Registry.) 
 
 A document (certificate) identical with the entry is to be granted. 
 
 Art. 436. If subsequently to the entry changes occur in the facts 
 referred to in the foregoing paragraphs, they must be entered in the 
 Register of shipping and stated on the certificate. 
 
 In case of the vessel being lost, or forfeiting the right of carrying 
 the country's flag, the vessel is to be struck off the Register of shipping 
 and the certificate has to be returned, unless it be credibly attested 
 that it cannot be returned. 
 
 Art. 437. The laws of the various countries determine the space of 
 time within which the facts necessitating an entry or a cancellation are 
 to be notified or pi'oved, and also the penalties which ai'e entailed by 
 neglect of these respites, or l:)y non-compliance with the foregoing pro- 
 visions. 
 
 Art. 438.' Tlie laws of the various countries may determine tliat 
 the provisions of Articles 432 to 437 sliall not apply to smaller vessels 
 (such as coasters, &c.).2 
 
 Art. 439. If a ship or a shai'e therein (ship's-part) be sold, the 
 transfer required according to tlie principles of the common law, if 
 any, may for the purpose of acquiring a title to the property, be 
 dispensed with by agreement between the contracting parties to the 
 effect tliat the title to the property shall immediately pass to the 
 purchaser. 
 
 Art. 440. In all cases of the sale of a vessel, or of a share therein 
 each of the parties has a right to demand that a certified document 
 respecting the sale should be given to him at his expense. 
 
 Art. 44L If a ship, or a share therein, be sold while the ship is 
 engaged on a voyage, it shall, as regards the relative positions of 
 vendor and purchaser, in default of an agreement to tlie contrary, be 
 
 ' Arts. 4.32-4.38 have lost their practical application, owing to the law respecting 
 the nationality of merchant vessels and their right to carry the flag of the Con- 
 federation of October 25, 18G7. This law applies to the whole German Empire, 
 and a translation of it will be found on p. 81.3. 
 
 - Sec translation of the Law of May 22, 1881, p. H17.
 
 APPENDIX. G89 
 
 presumed that the purchaser is entitled to the profits of the current 
 voyage, or responsible for the loss incurred therein. 
 
 Art. 442. The personal liabilities of the vendor towards third parties 
 are in no way altered by the sale of a ship or a share therein. 
 
 Art. 443. All articles intended for the permanent use of the ship 
 during its navigation are considered to be appurtenances of the ship. 
 
 Ships' boats more particularly belong thereto. 
 
 In doubtful cases all articles entered upon the Ship's Inventory are 
 considered to be appurtenances of the ship. 
 
 Art. 444. For the purpose of this fifth book a sliip that has become 
 unseaworthy is considered to be — 
 
 (1) Incapable of repair, when the repair is altogether impossible, 
 
 or cannot be done at the place where the ship is, and the 
 ship cannot be moved to a port where the repairs might be 
 carried out. 
 
 (2) Unworthy of repair, when the cost of the repair without 
 
 deduction on account of the difference between old and new 
 would amount to more than three-fourths of the previous 
 value. 
 
 When a vessel has become unseaworthy in the course of a voyage 
 its previous value is to be taken as that which the ship was worth at 
 the commencement of the voyage ; in all other cases, as that which 
 the ship l)efore she became unseaworthy was worth, or would with a 
 proper outfit have been worth. 
 
 Art. 44.5. In the ship's crew are included the mastei*, the seamen, 
 and all other persons appointed to duties on boai'd a ship. 
 
 Art. 446. A ship ready to sail cannot be arrested for debts. This 
 provision, however, does not apply to debts contracted for purposes of 
 the intended voyage. 
 
 An attachment for debts of goods already laden on board a ship 
 authorises their relanding only in such cases in which the shipper him- 
 self would be entitled to demand it, and only upon compliance with all 
 obligations which the latter would at the time have to fulfil. 
 
 From the time of the ship being ready to sail a person belonging to 
 the crew cannot be arrested for deV)ts. 
 
 Art. 447. When in this fifth book a distinction is made between 
 European and non-European ports, then the non-European ports of the 
 Mediterranean, the Black Sea, and the Sea of Azoff are to be con- 
 sidered as likewise belonging to the former category. 
 
 Art. 448. The provisions of this fifth book, which refer to the stay 
 of a vessel in the port of registry, can by the legislation of the vniious 
 
 V Y
 
 690 MARITIME LEGISLATION. 
 
 countries be extended to all or any ports situated in the same water as 
 the port of registry. 
 
 Art. 449. The provisions of this fifth book apply to the postal 
 establishments only so far as special laws or enactments do not lay 
 dovra other regulations respecting them. 
 
 SECOND PART. 
 
 Concerning the Owner mul Joint Ownership. 
 
 Art. 450. A shipowner is the proprietor of a vessel used by him for 
 the purpose of making a profit by navigation. 
 
 Art. 45L The owner is answerable for any damage occasioned to a 
 third party by the fault of any of the crew in the performance of their 
 duties. 
 
 Art. 452. The owner is, however, not personally liable for the claim 
 of a tliird party, but is only answerable to the extent of ship and 
 freight — 
 
 (1) When the claim is made on account of a legal transaction, 
 
 concluded by the master as such, in virtue of the authority 
 he lawfully possesses, and not in consequence of an especial 
 power of attorney. 
 
 (2) When the claim is occasioned by the non-performance, or the 
 
 incomplete or improper performance, of any ai-rangement 
 made by the owner, as far as the carrying out of such 
 arrangement belonged to the legitimate duties of the master, 
 no matter whether the non-performance or the incomplete 
 or improper performance was caused through the fault of 
 anybody belonging to the crew or not. 
 
 (3) When the claim has ai-isen through the fault of one of the 
 
 crew. 
 
 This section does not, however, apply to the cases stated under 
 Nos. 1 and 2, if any neglect in the performance of tlie arrangement is 
 attributable to the fault of the owner himself, or if he has especially 
 guaranteed the fulfilment of the arrangement. 
 
 Art. 453.' The OAvner is answerable for the claims of persons 
 
 ' By § 08 of the law regarding ships' masters and seamen of December 27, 
 1872 (vide translation, p. 7'JO), Art. 453 has been altered and reads as follows :— 
 
 ' The owner is answerable not only to the extent of ship and freight but also 
 personally for claims of the master or any member of the crew arising out of con- 
 tracts respecting their services and wages.' 
 
 The remainder of Art. 453 is repealed.
 
 APPENDIX. 091 
 
 belonging to the crew, and arising out of contracts respecting their 
 services and wages, not only to the extent of ship and freight, but at 
 the same time personally. 
 
 If, however, the ship be lost to the owner, without his fault before 
 the termination of the voyage, more especially 
 if it be lost by accident, 
 
 if it have been condemned as incapable or unworthy of repairs 
 (Art. 444), and if, in the latter case, it be sold without delay 
 V)y public auction, 
 if it be captured by pirates, 
 
 if it be seized or detained, and condemned as good prize, the 
 owner is not personally liable for claims arising out of the unfinished 
 voyage, or, when the latter consists of several subdivisions, for claims 
 resulting out of the last portion of the voyage. 
 
 The last portion of the voyage commences in the port in which the 
 ship has last taken in or discharged cargo, and from the time at which 
 the loading commenced or the discharging finished. A port of distress 
 is not considered to be a loading or discharging port within the meaning 
 of this clause. 
 
 In none of tlie aforesaid cases is the owner entitled to recover 
 bounties or advances previously paid. 
 
 Art. 454, The remaining cases in which the owner is responsible, 
 not personally, but only to the extent of ship and freight, are stated 
 in the following parts. 
 
 Art. 455. The owner, as such, may be sued before the court of the 
 port of registry on account of every claim whatsoever, irrespective of 
 the question whether he is personally responsible or only to the extent 
 of ship and freight (Art. 435). 
 
 Art. 456. A joint-ownership exists if a vessel belonging jointly to 
 more than one person be employed by them for the purposes of profit 
 by means of navigation. 
 
 The regulations respecting joint-ownership do not apply to the case 
 of a vessel belonging to a trading company. 
 
 Art. 457. The legal relations of the co-owners to each other are 
 regulated in the first instance by the agreement made between them. 
 Where no agreement has been entered into, the provisions of the 
 following paragraphs are to be applied. 
 
 Art. 458. The resolutions of the co-owners ai-e binding with regard 
 to the affairs of the ownership. 
 
 Resolutions are passed by a majority of votes. The votes are 
 counted according to the number of shares held. A majority of votes
 
 692 MARITIME LFGTSLATION. 
 
 in favour of a resolution exists if the person or persons who have voted 
 for such resolution hold together nioi-e than a moiety of the entire vessel. 
 The unanimous consent of all co-owners is refjuisite for the adoption 
 of resolutions intended to alter the agreement of ownership, or which 
 are contrarv to the stipulations of such agreement or foreign to the 
 objects of the ownership. 
 
 Art. 459. By resolution of a majority a managing owner (ship's 
 husband, representative owner) may be appointed to carry on the 
 business of the ownership. An unanimous vote is required in favour 
 of a resolution appointing a managing owner, who is not himself one 
 of the part-owners. 
 
 The appointment of a managing owner may be revoked at any time 
 oy a majority of votes, without prejudice, however, to any claims for 
 compensation arising out of existing agreements. 
 
 Ai~t. 460. By virtue of his appointment the managing owner is 
 empowered to carry out all business arrangements and legal acts as 
 against third parties, which the management of a joint-ownership 
 ordinarily requires. 
 
 This power extends more particularly to the fitting out, maintaining, 
 and chartering the ship ; to the insurance of the fi-eight, the cost of 
 outfit and the outlay necessitated by cases of average ; and to the 
 receiving of money in the ordinary course of business. 
 
 The managing owner is to the same extent authorised to represent 
 the joint-owners before legal tribunals. 
 
 He is empowered to appoint and to discharge the master ; the master 
 has to obey only his instructions, and not the instructions, if any, 
 which he may have received from any of the part-owners. 
 
 The managing owner is, however, not authorised in the name of the 
 joint-ownership, or of any part-owner or owners, to enter into obliga- 
 tions upon bills of exchange, nor to contract loans, to sell or mortgage 
 the ship or shares therein, nor to insure them, unless a special power of 
 attorney be given to him for such purpose. 
 
 In other respects, the special power of attorney, if any, required 
 by the legislation of the vainous countries, is not necessary for those 
 Ijusiness and legal acts which by virtue of his aj^pointment he is 
 authorised to carry out. 
 
 Art. 461. Any legal act which the managing owner as such may 
 liave concluded within the limits of his authority, binds and entitles 
 the joint-owners as against tliiid ])a,i-tips, even wlicii the act has been 
 effected without giving the names of the various jiai-t-owners. 
 
 In ca.se of responsibility incurred by the joint-ownoi-s in consequence 
 of a business niattei- concliHlcd l>y the niiuuiging (iwiicr, tlie ])art-()wnei-s
 
 Al>Pi:XI)IX. 093 
 
 are responsible to the same extent (Art, 452) as if the transaction had 
 been entered into by themselves. 
 
 Art. 462. A limitation of the powers of the manaj^^ing owner, as 
 stated in Art. 460, can only be pleaded by the joint-owners against 
 a tliird i)arty, so far as they ;ire in a position to prove that such limita- 
 tion was known to such tliird party at tlie time when tlie transaction 
 was concluded. 
 
 Art. 463. As far as the joint-owners are concerned, the managing 
 owner is Itound to act within the limitations which have been stipulated 
 by them as the extent of his powers ; he has also to be guided by the 
 resolutions passed, and to carry the same into effect. 
 
 In other respects the extent of his jiowers, even as against the 
 joint owners, is to be considered in accordance with the provisions of 
 Ai't. 460, with this modification, that for new voyages or undertakings, 
 extraordinary repairs, as well as for the appointment or discharge 
 of the master, the consent of the joint-owners must previously be 
 obtained. 
 
 Art. 464. The managing owner is bound to apply the attention of a 
 careful owner to the affairs of the joint-ownership. 
 
 Art. 465. The managing owner shall keep separate accounts re- 
 specting his management of the affairs of the joint-ownership and shall 
 preserve the vouchers relating thereto. He shall, on demand, give to 
 each part-owner information of all matters connected with the joint- 
 ownership, more particularly respecting ship, voyage, and outfit ; he 
 is bound to allow him at all times to inspect the books, letters, 
 and papers which have reference to the affairs of the joint-owner- 
 ship. 
 
 Art. 466. The managing owner shall at all times, when called upon 
 by a resolution of the joint-owners, produce to them a balance-sheet. 
 The adoption of the balance-sheet and the approval of the management 
 of the managing owner by the majority does not prevent a majority 
 from enforcing their rights. 
 
 Art. 467. Every co-owner shall contribute to the expenses of the 
 ownership, more especially to the expenses of the outfit and the repairs 
 of the vessel, in proportion to the amount of his share. 
 
 When a part-owner is in arrear of contributions, and when the 
 money has been advanced by co-owners on his account, he is by law 
 bound to pay them interest from the time the advances have been 
 made. The laws of the various countries decide whether a mortgage- 
 lien is established by such advances upon the shai*e of tlie part-owner 
 in arrear. Should a mortgage-lien not be so acquired, the advances 
 made give the co-owners an insurable interest in the share in question.
 
 004 MAR ITI M E L I:GISL ATION . 
 
 Ill case this interest should have been insured, the part-owner in arrear 
 is bound to repay the expenses of such insurance. 
 
 Art. 468. If it lias been decided to commence a new voyage, or 
 after the termination of a voyage to repair the vessel, or to pay off a 
 creditor, to whom the ownership is only liable to the extent of ship and 
 frei<Tht, every part-owner who has not assented to the resolution may 
 exonerate himself from making the payments necessary to carry out 
 such resolution by giving up his share without claim to indemnili- 
 cation. 
 
 The part-owner intending to exercise this right shall be bound to 
 give judicial or notarial notice of such intention to the part-owners or 
 the managing owner within three days from the date of the passing of 
 the resolution, or, in case he was not present pei'sonally or by proxy at 
 the passing of tlie resolution, then within three days of the time that 
 the resolution shall have been communicated to him. 
 
 The share thus given up becomes the property of the remaining 
 co-owners in proportion to the amount of their several shares. 
 
 Art. 469. The distribution of profits and losses is made in proportion 
 to the amount of the shares. 
 
 The calculation of profits and losses and the distribution of the 
 profits, if any, take place every time that the vessel returns to the 
 port of registry, or whenever it has completed its voyage in another 
 port, and the crew has been discharged. 
 
 Monies coming in before the time mentioned, as far as they are not 
 wanted for future expenses, or for satisfying claims of single part- 
 owners against the joint-ownership, shall also be distributed and paid 
 ncl interim to the several part-owners in proportion to the amount of 
 their shares. 
 
 Art. 470. Every jiart-owner is at liberty to sell his share at any 
 time, either wholly or in part, without the consent of the other part- 
 own<?rs. 
 
 The co-owners have no legal right to priority of purchase. The 
 sale, however, of a share whereby the A'essel would lose its right to 
 carry the country's flag can only be legally made with the consent of 
 all co-owners. Those laws of the various countries which altogether 
 prohibit such a sale shall not be affected by this provision. 
 
 Art. 471. The part-owner who has sold his share is, as regards his 
 connection with the co-owners, considered to be a part-owner until he 
 and the purchaser have notified such sale to the other part-owners or 
 to the managing owner, and continues liable as part-owner to the other 
 part-owners with respect to all obligations contracted previously to such 
 notification.
 
 APPICNDIX. 695 
 
 The purchaser of the share, however, is, as far as the other part- 
 owners are concernefl, already liable from the moment of such acquisi- 
 tion. He, like the vendor, is bound, by the stipulations of the agree- 
 ment of ownership, by the resolutions passed and by the transactions 
 already entered into ; the other part-owners are besides at liberty to 
 enforce against the purchaser the fulfilment of all liabilities attaching 
 upon the vendor with regard to the share in question, the purchaser's 
 right to recover against the vendor being in no way affected thereby. 
 
 Art. 472. A change among the part owners does not atfect the con- 
 tinuance of the joint-ownership. 
 
 When a part-owner dies or becomes bankrupt, or legally incapable 
 of managing his property, the ownership is not thereby dissolved. 
 
 Notice of withdrawal on the part of a part-owner or exclusion of a 
 part-owner are inadmissible. 
 
 Art. 473. A dissolution of the joint-ownership may be resolved 
 upon by a majority. A resolution to sell the vessel is to be considered 
 as a resolution to dissolve the ownership. 
 
 If it has been decided to dissolve the joint-ownership or to sell the 
 vessel, the sale of the vessel must take place by public auction. The 
 sale shall only take place when the vessel is not chartered for a voyage, 
 and when it is in the port of registry or a home port. 
 
 If, however, the vessel has been condemned as incapable or unworthy 
 of repair (Art. 444), it may be sold although under charter, or even in 
 a foreign port. The consent of all part-owners is required if a devia- 
 tion from the foregoing regulations be contemplated. 
 
 Art. 474. As regards their personal obligation to third parties, the 
 part-owners as such are liable only in prof)ortion to the amount of their 
 shares. 
 
 In case a share in a ship is sold, both vendor and purchaser are 
 liable with respect to the personal obligations conti-acted for such share 
 during the period from the sale to tlie notification mentioned in 
 Art. 471. 
 
 Art. Hi). The pai't-owners as such may be sued befoi'e tlie court of 
 the port of registry (Art. 435) for every claim, no matter whether 
 made by a part-owner or by a third party. 
 
 This provision applies also to such cases in which an action is 
 entered only against one part-owner or against some of the part- 
 owners. 
 
 Art. 476. If two or more persons agree to build a vessel for their 
 joint account and to use the same for the purposes of navigation, then 
 Articles 457, 458, 467 are to be applied, the latter with the modifica- 
 tion that it has to include the building expenses, also Articles 472 and
 
 (96 MARITIME LEGISLATION. 
 
 47-i, and, as soon as tlie vessel has been finished and handed ovei' Ly 
 the builder, Articles 470, 471 and 473 likewise api^ly. 
 
 The managing owner (Art. 459) may also be appointed before the 
 vessel has been finished ; in this case he assumes from the time of his 
 appointment all rights and duties of a managing owner with respect to 
 the further management of the affairs of the joint-ownership. 
 
 Art. 477. Whoever employs for his account a vessel not belonging to 
 himself with the \new of profit by means of navigation, and either com- 
 mands the same liimself or entrusts the command to a master, is as 
 against third parties considered to be the owner. 
 
 The actual owner cannot prevent anybody who brings forward a 
 claim as ship-creditor, arising out of such employment, from enforcing 
 his claim unless he is in a position to prove that such employment was 
 illegal with regard to himself, and that the creditor has not acted in good 
 faith. 
 
 THIRD PART. 
 
 Concerning the Master, 
 
 Art. 478. The commander of a vessel (ship captain, master) shall 
 exercise the care of a properly qualified master in all matters connected 
 with his duties, but more especially in the fulfilment of contracts to be 
 executed by him. He is liable for every damage occasioned by his fault, 
 particularly for the damage originating in the violation of the duties 
 imposed upon him by this and the following articles. 
 
 Art. 479. This liability of the master exists not only towards the 
 owner but also towards the charterer, shipper and receiver of cargo, the 
 passengers, crew, and those creditors of the vessel whose claims arise 
 out of a credit transaction (Art. 497), more especially the bottomry- 
 creditor. 
 
 The master is not exonerated from liability as regards the other 
 before-mentioned persons by having acted according to instruction of 
 the owner. 
 
 By such instruction, the owner becomes also personally liable if he 
 was acquainted with the position of affairs at the time the instruction 
 was given. 
 
 Art. 480. The master, before entering upon a voyage, has to take 
 care that the vessel is in a seaworthy condition, properly furnished and 
 fitted out, properly manned and provisioned, and that the papers i-e- 
 f|uired as pi'oofs of identity for ship, crew, and cargo are on board. 
 
 A rl. 1 H 1 . The master is responsible for the condition of the gear used 
 for loading and discharging, as well as for proper stowage according to
 
 APPENDIX. r,<)7 
 
 seaman's custom, notwitlistaiidiiii;' (liat tlie stowage may be performed 
 by special stevedores. He lias to take care that the vessel is not over- 
 loaded, and that it is provided with the necessary ballast and the 
 requisite dunnage. 
 
 Art. 482. If the master when in a foreign country does not comply 
 with the legal provisions tliere in force, more especially respecting police, 
 customs, and revenue regulations, he shall make good the damage 
 thereby occasioned. In like manner, he shall make good any damage 
 resulting from his taking in goods which he knew or ought to have 
 known to be contraband of war. 
 
 Art. 483. As soon as the sliip is ready to sail the master sliall com- 
 mence the voyage at the first favourable opportunity. 
 
 Even if illness or other causes sliould prevent him from commanding 
 the ship, he is not allowed unduly to delay its departure or tlie continu- 
 ation of its voyage ; on the contrary, he shall, if time and circumstances 
 permit, apply to the owner for instructions, inform him without delay 
 of the impediment, and meanwhile make proper arrangements ; other- 
 wise he shall appoint another master. He is only responsible for the 
 acts of such substitute in so far as he may have been guilty of careless- 
 ness in his selection. 
 
 A7't. 484. From the commencement of taking in cargo to tlie com- 
 pletion of the discharge, the master and the mate shall not leave the 
 vessel simultaneously except in urgent cases ; in such an event the 
 master shall previously appoint a substitute from amongst the officers 
 or the rest of the crew of the vessel. 
 
 The same rule applies, before the commencement of loading and after 
 . the completion of the discharge, if the vessel is in an unsafe port or an 
 insecure roadstead. 
 
 When the vessel is threatened by any danger, or when it is at sea, 
 the master must be on board, unless urgent necessity should justify his 
 absence. 
 
 Art. 485. Although the master, in case of danger, may consult the 
 officers of the vessel, he is nevertheless not bound by the resolutions 
 arrived at ; he remains always responsible far the measures taken by 
 him. 
 
 Art. 486. On board of every vessel a log-book shall be kept, in 
 which, during every voyage, all important events from the commence- 
 ment of taking in cargo or ballast shall be entered. 
 
 The log-book shall be kept, under the supervision of the master, by 
 the mate, and, in case the latter should be prevented, then by the master 
 himself, or, under his supervision, liy another duly qualified member of 
 the crew, selected by him for this purpose.
 
 G98 MAiail-ME LEGISLATION. 
 
 Art. 487. Daily entries shall be made in the log-book respecting — 
 The state of wind and weather. 
 
 The courses steered by the vessel and the distances run. 
 The ascertained latitude and longitude. 
 The state of water at the pumps. 
 In the log-book shall also be entered — 
 
 The depth of water ascertained by heaving the lead. 
 
 Every employment of a pilot and the time of his arrival and 
 
 departure. 
 Any changes among the persons composing the crew. 
 The resolutions arrived at in any ship's council. 
 All accidents happening to ship or cargo, together with a de- 
 scription thereof. 
 Punishable acts committed, and the disciplinary punishments in- 
 flicted, as also births and deaths occurring on board, are likewise to be 
 entered in the log-book. 
 
 The entries shall, so far as circumstances will permit, be made 
 daily. 
 
 The log-book shall be signed by the master and the mate. 
 Art 488.^ The log-book when properly kept and free from suspicion 
 as to form furnishes, as a rule, so far as neither an extended protest 
 (Art. 490) is requisite, nor the production of other vouchers customary, 
 jn-iind facie evidence respecting the occurrences during the voyage, 
 wliich evidence may be perfected either by oath or other evidence. 
 The judge, however, shall, according to his discretion and guided by 
 consideration of all the circumstances, decide whether the statements 
 of the log-book are more or less deserving of credibility. 
 
 Art. 489. The laws of the various countries may determine that on 
 board smaller vessels (as coasters, &c.) the keeping of the log-book shall 
 not be requisite. 
 
 Art. 490. The master shall, in conjunction with all the persons 
 forming the crew or a sufficient number thereof, make an extended 
 protest respecting all accidents happening on the voyage, no matter 
 whetlier entailing the loss or damage of the ship or cargo, a running 
 into a port of distress, or other injury. 
 
 The protest shall be extended without delay, and more especially — 
 
 In the port of destination or, when there are more than one ports 
 
 of destination, in that which the vessel first reaches after the 
 
 accident. 
 
 In the port of distress, if the vessel is repaired or discharged 
 
 therein. 
 
 ' iiciR'alffl by j i;3 of the Civil I'roccss llcgulutions, d. d. .Januai}- 30, 1877.
 
 APPENDIX. COO 
 
 At the first suitable place, if the voyage tenniiuites without the 
 port of destination having been reached. 
 
 If the master has died or become incapable to extend the protest 
 the officer next in rank to him is entitled and obliged to do it. 
 
 Art. 491. The extended pi-otest must contain a repoi-t of all impor- 
 tant incidents of the voyage, and in particular a detailed and lucid 
 narration of all accidents sustained, together with a statement of the 
 means adopted to avoid or lessen the damage. 
 
 Art. 492. Wherever the provisions of this law are in force notice of 
 the protest shall be given to the competent court, such notice being 
 accompanied by the log-book and a list of all persons composing the 
 crew. 
 
 The court shall, after receipt of the notice, proceed with the ex- 
 tension of the protest as soon as possible. 
 
 The day fixed for this purpose shall, whenever the circumstances of 
 the case admit of such delay, be made publicly known in an adecjuate 
 manner. 
 
 All persons having an interest in ship and cargo, as well as all other 
 persons who may be affected by the accident, are entitled to be present 
 at the extension of the protest either personally or by deputy. 
 
 The extension of the protest is based upon the log-book. When 
 the actual log-book cannot be produced, or when a log-book has not 
 been kept (Art. 489), the reason thereof is to be stated. 
 
 Art. 493. The judge is authorised to examine other persons of tiie 
 crew, if he think proper, besides those that have been produced. He 
 may, for the sake of a more accurate investigation, put suitable ques- 
 tions to be answei'ed by the, master as well as by any other person 
 belonging to the crew. 
 
 The master and the other members of the crew who may have been 
 summoned shall confirm their depositions upon oath. 
 
 The original protocol drawn up respecting the extension of the 
 protest shall be preserved and a certified copy granted on demand to 
 each of the parties interested. 
 
 Art. 494.1 'j'l^g extended protest drawn up in conformity with 
 Articles 492 and 493 constitutes complete evidence of the incidents of 
 the voyage testified to therein. 
 
 Each party interested retains in case of a lawsuit the right to pro- 
 duce counter-evidence. 
 
 Art. 495. Legal business which the master transacts while the 
 vessel is in the port of registry is only binding upon the owner when 
 
 ' Repealed by § 13 of the Civil Process Regulations, d. d. January 30, 1S87.
 
 700 MAPJllME LEGISLATION. 
 
 the master has acted on the autJiority of a power of attorney, or when 
 there is some other special reason for his obligation to do so. 
 
 The mast^er is, however, entitled to engage seamen in the port of 
 registry. 
 
 Art. -190. "When the vessel is not in the port of registry the master 
 is as against third parties, by virtue of his appointment autho- 
 rised to transact on behalf of the owner all business mattei's whether 
 leo-al or otherwise rendered necessary by the outfit, manning, provision- 
 ing, and maintenance of the vessel and, in general, for the performance 
 of the voyage. 
 
 This authority likewise extends to the entering into contracts of 
 affreightment ; it extends, moreover, to the instituting of lawsuits 
 having reference to matters connected with his duties. 
 
 Art. 497. The master is, however, only entitled to contract loans, 
 to make purchases on credit and to conclude similar transactions on 
 credit, when they are necessary for the maintenance of the vessel and 
 the completion of the voyage, and only so far as is necessary to supply 
 the actual requii'ement. He is only at liberty to enter into a bottomry 
 transaction when it is unavoidably requisite for the completion of the 
 voyage, and only so far as is necessary to suj^ply the actual require- 
 ment. 
 
 The validity of the transaction depends neither upon the actual 
 application of the money, nor upon the prudence of the selection made 
 between various modes of raising money, nor upon the question 
 whether tlie master had at his disposal the money required, except it 
 .should Ije pro\ed that the third party acted in bad faith. 
 
 Art. 498. The master is not authorised to conclude transactions on 
 the personal credit of the owner, nor more especially to contract debts 
 upon bills of exchange on his behalf, unless specially authorised by a 
 power of attorney given him to that effect (Art. 452, par. 1). Letters 
 of instruction and ordei-s as to his duties which the master receives 
 from the owner are not sufficient to set up a personal liability of the 
 owner in favour of a third party. 
 
 Art. 499. The master is empowered to sell the vessel only in cases 
 of urgent necessity, and when such necessity has been ascertained by 
 tJie local court after hearing the opinion of experts, and with the 
 assistance of the consul of the country, when one is at hand. 
 
 Should there be neither a court of law nor any other authority on 
 the spot to undertake the inquiry, the master shall, in order to justify 
 liis actions, take the opinion of experts, and when this is not possible, 
 provide himself with other jiroofs. 
 
 'J'ho salo must tak(! ])l;u(' by ])ublic auction.
 
 APPENDIX. 701 
 
 Art. nOO. Any owner who has placed restrictions upon tiic leijal 
 authority of the master can only plead against third parties non- 
 observance of such restrictions if he proves that they were known to 
 such parties. 
 
 Art. 501. Should the master, without special instructions, have 
 advanced money belonging to himself for account of the owner, or 
 made himself personally liable, he has no greater claim against tlie 
 owner for indomnitication than a third party. 
 
 Art. 50:2. Any transaction witliin the scope of the master's legal 
 authority entered into by liini in liis capacity as commander of the 
 vessel, gives the owner a legal claim against a third party, but rendeis 
 him at the same time responsible to the extent of ship and freight, 
 whether his name appear or not. 
 
 The master himself does not become responsible to a third party liy 
 such legal transaction, unless he has guaranteed its fulfilment, or has 
 exceeded his authority. The liability of the master in conformity witli 
 Articles 478 and 479 is, however, not excluded hereby. 
 
 Ai-t. 503. The foregoing articles are likewise binding ujk))! the 
 owner as to tlie extent of the authority of the master in so far as tliis 
 authority has not been restricted by the owner. 
 
 It is, moreover, the duty of the master to transmit to the owner 
 continual information of the condition of the vessel, the incidents of 
 the voyage, the contracts entered into by him, and the lawsuits that 
 may have become necessary ; and, when circumstances permit, to apply 
 to the owner for instructions on all important occasions, particularly 
 in the cases contemplated by Articles 497 and 499, or when he is 
 compelled to alter or abandon a voyage, or when extraordinary repairs 
 and outlay for necessaries are rendered necessary. 
 
 The master is only in case of necessity permitted to undertake 
 extraordinary repairs and outlay, even when he may be able to defray 
 the expense with funds belonging to tlie owner over which he may 
 have control. 
 
 If he is unable to procure the requisite funds to provide for an 
 urgent necessity in any other way than either by bottomry or by tlie 
 sale of superfluous appurtenances or provisions of the ship, he shall 
 adopt that alternative which entails the least detriment upon the 
 owner. 
 
 After his return to the port of registry, and otherwise as often as 
 it is demanded, he shall render his account to the owner. 
 
 Art. 504. The master shall take every possible care of the cargo 
 during the voyage in the interest of those concerned therein. 
 
 When special measures are required in order to avoid or lessen a
 
 702 MAKiriME lp:gislation. 
 
 loss, it is his duty to protect the interest of those concerned in the 
 car<'0 as their representative ; to take their instructions, if possible, 
 and, so far as circumstances admit, to carry tlie same into effect ; other- 
 wise, however, to act according to his own discretion, and generally to 
 take every possible care that those interested in the cai-go are speedily 
 informed of such occurrences, and of the measures thereby rendered 
 necessary. 
 
 He is particularly in such cases authorised to discharge the whole 
 or a portion of the cargo ; in extreme cases, if on account of imminent 
 deterioi-ation or for other causes a considerable loss cannot be other- 
 wise averted, to sell or hypothecate it for the purpose of providing 
 means for its preservation and further transport ; to reclaim it in case 
 of capture or detention ; or, if it shall have been otherwise withdrawn 
 from his charge, to take all extra-judicial and judicial steps for its 
 recovery. 
 
 Art. 505. When the prosecution of the voyage in its original 
 direction is prevented by an accident, the master is at liberty either to 
 continue the voyage in another direction, or to suspend it for a shorter 
 or longer period, or to return to the port of departure, according to 
 the circumstances and to the instructions received, which latter are to 
 be adliered to as closely as possible. 
 
 In the case of the cancelling of the contract of affreightment he 
 shall act according to the provisions of Art. 634. 
 
 Art. 506. Even in the cases referred to in Art. 504, the master has 
 no right to conclude any business transaction upon the personal credit 
 of the parties interested in the cargo, unless by virtue of a power of 
 attorney authorising liim to do so. 
 
 Art. 507. With the exception of the cases stated in Art. 504, the 
 master has only the right to hypothecate the cargo, or to dispose of 
 portions thereof l)y sale or conversion, when and in so far as it is 
 necessary for the purpose of prosecuting the voyage. 
 
 Art. 50S. If the necessity originates in a General Average, and if 
 tln" master has an o]:)tion of remedies, he shall take that alternative 
 which entails the least detriment to the parties interested. 
 
 Art. 509. When the case is not one of a General Average, the 
 ma.ster shall not take a bottomiy bond on the cargo, or dispose of por- 
 tions of the same by sale or conversion, unless he cannot provide for 
 his recjuirements in any other way, or unless the adoption of other 
 measures would cause a disproportionate damage to the owner. 
 
 In such cases, also, he can only hypothecate or take a bottomry 
 bfMul on the cargo together with ship and freight. (Art. 681, par. 2.) 
 He shall re.solvc upon tnking a l)ott()inry l)r>iid in prcfen^nco to sale,
 
 APPENDIX. 703 
 
 unless a disproportionate damage would Jje caused thereby to the 
 owner. 
 
 Art. 510. Taking a bottomry l)ond on tlie cargo, or disposing of 
 portions of the same by sale or conversion, shiill be considered in the 
 cases contemplated in the foregoing Article as credit transactions (Arts. 
 497 and 7o7, No. 7) entered into for account of the owner. 
 
 Art. 511. The enactments of Art. 497 are to be applied with respect 
 to the validity of legal transactions entered into Ijy the master in tiie 
 cases contemplated by Articles 504 and 507-509. 
 
 Art. 51i'. The master does not retjuirc the special power of attorney, 
 which may be prescribed by the laws of the various countries, in order 
 to transact the legal and other business to which he is authorised by 
 Articles 495, 496, 497, 499, 504, 5C7-509. 
 
 Art. 513. The master is bound to place to the credit of the owner's 
 account every amount which, in addition to the freight, he may receive 
 from the charterer, shipper, or consignee of the cargo, such as primage 
 or anything in the shape of remuneration or gratuity, or under anv 
 denomination whatsoever. 
 
 Art. 51 i. The master shall take no goods on boaid for his own 
 account without the consent of the owner. If he acts to the contrary, 
 he shall pay to the owner the highest freight charged at the loadin •■ 
 port for such voyages and goods at the time of shipment, without pre- 
 judice to the right of the owner of enforcing higher damages, which he 
 may be able to prove. 
 
 Art. 515. The master can be discharged by the owner at any time, 
 any agreement to the contrary notwithstanding, but without prejudice 
 to his claim of indemnity. 
 
 Art. 516. When the master has been discharged because he has 
 been found to be incapable, or because he neglects his duty, he shall 
 receive only so much of his wages, including all other stipulated emolu- 
 ments, as he has earned up to the time of his discharge. 
 
 Art. 517. When the master, who has been engaged for a particular 
 voyage, is discharged, because such voyage cannot be commenced or be 
 continued on account of war, embargo, or blockade, or on account of a 
 prohibition of irapoi-tation or exportation, or from any other accident 
 happening to ship or cargo, he shall in such cases also receive only so 
 much of his wages, including all other stipulated emoluments, as he has 
 earned up to that time. The same rule applies when a master, ap- 
 pointed for an indefinite period, is discharged after he has undertaken 
 the performance of a particular voyage. 
 
 If in any of the above cases the discharge takes place in the cour.se 
 of the voyage, the master is entitled at his option either to a free pas-
 
 704 MATvITIME LEGISLATION'. 
 
 sage to the port where he has been engaged, or to a corresponding 
 indemnity. 
 
 "When a eh\im for a free return-passage is established according to 
 the provisions of this code, it includes also the maintenance during the 
 
 voyage. 
 
 Art. 518. When a master, who has been engaged for an indefinite 
 period, is dischai'ged for other reasons than those stated in Articles 516 
 and 517 after he has undertaken a particular voyage, he shall receive, 
 besides what is due to him, according to the provisions of the last 
 article two months' wages if the discharge has taken place in a 
 European port, or four months' wages if it lias taken place in a non- 
 European port. 
 
 In no case, however, shall he be entitled to mor-e than he would 
 have received if he had completed the whole of the voyage. 
 
 Art. 519. Should the pay have been fixed at a lump sum for the 
 whole voyage, the wages earned in the cases contemplated by Articles 
 516-518 shall be calculated in proportion to the services rendered, to 
 the part of the voyage actually performed, and to the lump sum origi- 
 nally fixed. As basis for the computation of the wages, with respect 
 to the tw^o or four months stipulated by Art. 518, shall be taken the 
 average duration of the voyage, including the time of loading and dis- 
 charo^ino-, due regard being had to the condition of the vessel. 
 
 Art. 520. When the return voyage of the vessel does not terminate 
 in the port of registry, the master, who has been engaged for the 
 voyage out and home, or for an unlimited period, shall receive a free 
 return-passage to the port where he had been engaged, with his wages 
 during the voyage, or at his option a corresponding indemnity. 
 
 Art. 521. When the master has been engaged for an unlimited 
 period, he is bound as soon as he has entered upon a voyage to remain 
 in such service until the vessel has returned to the port of registry, or 
 to a home port, and its discharge has been completed. 
 
 He can, however, demand liis discharge after two years' service 
 from tlie date of his first departure, when the vessel at the time of his 
 giving notice is in a European port, or after tlii'ee years' service when 
 it is in a non-European port. He shall in such a case allow the owner 
 sufficient time to replace him, and continue his duties meanwhile, and, 
 at all events, complete the current voyage. 
 
 If tlie owner iiiunodiatcly after receiving the notice has given 
 orders for the return voyage, the master is bound to bi-ing the vessel 
 home. 
 
 Art. 522. If the master b(> dismissed ngaiiist liis will, the share 
 wliit-li Ik- ni.iv lia\<' in Ili<' \c.-scl ;is i>ai-( owner by viituo of an agree-
 
 APPENDIX. 705 
 
 inent with the other owners, must at his deinaiul ho taken and paid for 
 by the other owners at a valuation to he made \)y competent persons. 
 This right of the master ceases if h(^ unduly delays the notice that he 
 intends to avail himself of it. 
 
 Art. 523. When after the comm^nccmsnt of the voya;,'e the master 
 is invalided or woundel, the owner has to bear the expenses of his 
 care and restoration to health — 
 
 (1) If the master returns in the vessel, and if the return vovage 
 
 terminates in the port of registiy, or in the [tort where he 
 has been hired, up to the tennination of the return voyage. 
 
 (2) If he returns in the vessel and the voyage does not terminate 
 
 in either of the aforesaid ports up to the expiration of six 
 months after tlie termination of the return voyage. 
 . (3) If it has been necessary to leave him behind ashore during the 
 voyage, up to the expiration of six months after the time 
 when the vessel has continued' its voyage. 
 
 In the two latter cases he is also entitled to a free return-passage 
 (Art. 517) or, at his option, to a corresponding indemnity. 
 
 When the master has been invalided or wounded after the com- 
 mencement of the voyage, he shall receive, if he returns in the vessel, 
 his wages, including all other stipulated emoluments, until the termi- 
 nation of the return voyage, and, if he has been left behind ashore, up 
 to the day on which he leaves the vessel. 
 
 If the master has been injured in the defence of the vessel, he is 
 besides entitled to a fair raward, which, if necessaiy, shall be fixed by 
 the judge. 
 
 Art, 524. When the master dies after having entered upon his 
 duties, the owner shall pay his wages, including all other stipulated 
 emoluments, up to the day of his death ; if death has occurred after 
 the commencement of the voyage, the owner shall also bear the funeral 
 expenses. 
 
 In case the master be killed in defence of the vessel, the owner 
 shall besides make a fair compensation, which, if necessary, shall be 
 fixed by the judge. 
 
 Art. 525. The provisions of Art. 453 are also to be applied to the 
 claims mentioned in Articles 523 and 524. 
 
 Art. 526. The master shall take care to have the protest extended 
 when the vessel has been lost, and in general he shall protect the 
 interest of the owner as long as it is necessary. He shall, however, 
 continue to receive during such period his wages and payment of the 
 cost of maintenance. The owner is personally liable for such wages 
 and such costs of maintenance. The master retains his claim to a free 
 
 Z /
 
 700 MARITIME LEGISLATION. 
 
 return-passage (Art. ."ilT), or, at his option, to a corresponding indem- 
 nity, subject to the provisions of Art. 453. 
 
 Art. 527. This code does not affect the laws of tlie various countries 
 as regards the qualifications required of the master. 
 
 FOURTH PART.i 
 
 As to (he Creiv. 
 
 Art. 528. The ' crew ' comprises all officers of the ship except the 
 master ; and in like manner the word ' seaman ' includes every ship's 
 officer except the master. 
 
 Art. 529. The conditions of the agreement made with the crew 
 shall be stated in the ship's articles. 
 
 Art. 530. When a seaman has been engaged after the articles have 
 been drawn up, the stipulations made with the other seamen, according 
 to the contents of the said articles, shall be applied to him in default 
 of any arrangement to the contrary ; he shall more especially be en- 
 titled only to the same wages which, according to the articles, are due 
 to the other seamen of his class. 
 
 Art. 53L The obligation of the crew to go on board and enter upon 
 their duties commences, unless any other agreement has been made, 
 from the time of their engagement. The wages are to be paid from 
 the same period, in default of any arrangement to the contrary. 
 
 Art. 532. The master can cause any seaman, who, after having been 
 engaged, neglects to enter upon or continue to do his duties, to be 
 forcibly compelled to pei-form the same. 
 
 Art. 533. The seaman shall unhesitatingly obey the orders of the 
 master witli regard to the service of the ship, and he shall at all times 
 perform every work entrusted to him with regard to ship and cargo. 
 
 He shall be subject to the disciplinary power of the master. The 
 further regulations concerning the disciplinary power of the master are 
 reserved to the laws of the various countries. 
 
 Art. 534. The seaman shall not bring any goods on board without 
 permission of the master. He shall pay the highest freiglit paid at the 
 loading-port for such voyage and goods at the time of shipment for any 
 
 ' The fourth part of the German General Mercantile Law, including Arts. 528- 
 5.50, lias been repealed by the law regarding ships' masters and seamen of December 
 27, 1872. (Vide translation, p. 7U0). But as in several parts of these enact- 
 ments reference is made to statements contained in the old law, which would 
 bo unintelligible if not before the reader, tliose ropciilcd iuticlcs arc nevertheless 
 reprinted.
 
 APPENDIX. 707 
 
 goorls shipped by liim contrary to tliis proliibitioii, wliether for liiiusolf 
 or for others, without prejudice to any claims for higlier damages that 
 may he proxed. 
 
 The master is also authorised to throw the goods overboard if they 
 endanger the ship or cargo. 
 
 The laws of the various countries inflicting additional penalties 
 upon any contravention of this prohibition are not afl'ected by this 
 enactment. 
 
 Ai-t. 535. The seaman is bound, if so required, to assist at the 
 extending of the protest and to confirm his deposition ])y oath. 
 
 Arf. 5.36. In default of another agreement the wages shall not be 
 paid to the seaman until after the termination of the voyage ; or on 
 his discharge, if the same takes place before that time. The laws of 
 the various countries, and, in default thereof, the custom of the port 
 of registry, shall determine what advances and payments on account 
 shall be made before the commencement of and during the voyage. 
 
 Art. 537. The seaman shall not sue the master before a foreign law 
 court. If he acts contrary to this provision he shall not only answer 
 for the loss occasioned thereby, but he shall also forfeit the wages earned 
 up to that time. 
 
 In cases of need he may apply to his country's consul, or to that 
 consul who is authorised to act in his place, and in default of sucli to 
 the consul of any other German State, in order to obtain a provisional 
 decision. 
 
 Each party shall provisionally submit to the decision of the consul, 
 without prejudice to the right of enforcing their claims, after the ter- 
 mination of the voyage, before the competent authority. 
 
 Art. 538. Unless the agreement contains provisions to the contrary, 
 the seaman shall remain in the service during the whole of the voyao'e, 
 including intermediate trips, if any, and until the termination of the 
 return voyage. 
 
 If the leturn voyage does not terminate in the port of registry, he 
 is entitled to a free return-passage (Art. 517) to the port where he has 
 been engaged, and to the payment of his wages during the voyao'e, or, 
 at his option, to a corresponding indemnity. 
 
 Art. 539. If, after the termination of the outward voyaofe, an inter- 
 mediate voyage has been decided upon, or if an intermediate voyaf^e 
 has been terminated, the seaman may demand his discharge after two 
 years from his engagement, if the vessel, at the time of his fivin" 
 notice, is in a European port, or after three years if it is in a non- 
 European port. On his discharge tlie seaman shall receive his wa^es 
 earned up to that time, but no other indemnity.
 
 703 MAPJTIME LEGISLATION. 
 
 But the discharge cannot be demanded when the return voyage has 
 
 been ordered. 
 
 Art. 540. The fore^-oing Article does not apply when the seaman has 
 engaged himself for a longer time. 
 
 An en<»ao-ement for an unlimited period, or with the general con- 
 dition that after the termination of the outward voyage the agreement 
 shall be continued for all voyages that might be resolved upon, shall not 
 be considered as an engagement for a longer time. 
 
 Art. 541. In default of another agreement, an increase of wages, if 
 payable by time, shall take place for the seamen who shall have served 
 since the outward voyage, in all cases M'here a vessel remains abroad 
 longer than two years. 
 
 The amount of the increase shall be fixed by the laws of the various 
 countries. 
 
 Art. 542. The engagement terminates when the owner loses the 
 vessel through an unforeseen incident, more especially — 
 If it is lost by accident. 
 
 If it has been condemned as incapable or unworthy of repair 
 (Art. 444), and if, in the latter case, it is sold, without delay, 
 by public auction. 
 If it is captured by pirates. 
 
 If it is seized or detained and condemned as good prize. 
 In such a case the seaman shall not only receive the wages he may 
 have earned, but also a free return-passage to the port where he has been 
 engaged, or, at the option of the master, a corresponding indemnity. 
 
 He is bound to render assistance in salvage on continuation of his 
 wages, and to assist in the extending of the protest, on payment of 
 travelling expenses and for loss of time. The owner is personally 
 lialjle for these expenses ; but in all other respects he is only answei'able 
 subject to the provisions of Art. 453. 
 
 A7't. 543. The master can, besides in the cases provided for in the 
 agreement, discharge the seaman before the expiration of his time of 
 service — 
 
 (1) As long as the voyage has not yet been commenced, if the sea- 
 
 man is incapable for the service for which he has engaged ; 
 if such incapacity is not found out until later, the master is 
 entitled to disrate the seaman, and to lower his wages in 
 proportion ; the mate is excepted from this pro^■ision. 
 
 (2) If tlie seaman connuits a gross offence against his duty, more 
 
 cs[)ecially if he is guilty of repeated disobedience or con- 
 tinued refractory conduct, of smuggling, or of any action 
 subject to severe punishment.
 
 APPENDIX. 709 
 
 (3) If the seaman is infected with syphilitic disease, or if, l>y doing 
 a prohibited act, he has become invalided or wounded, and 
 thereby incapacitated to work. 
 
 (■1) If tlie voyage for which the seaman has been engaged cannot 
 be commenced or continued on account of war, emljargo, or 
 blockade, or on account of a prohibition of exportation or 
 importation, or on account of any other casualty happening 
 to ship or cargo. 
 
 Art. 544. In the cases .stated under Nos. 1-3 of Art. 543, the sea- 
 man is not entitled to more than the wasge earned ; in the cases of 
 No. 4 he is entitled, when the discharge occurs after the commence- 
 ment of the voyage, not only to the wages earned but also to a free 
 return-passage (Art. 517) to the port where he has been engaged, or, 
 at the option of the master, to a corresponding indemnity. 
 
 The laws of the various countries subjecting the seaman to the 
 loss of the wages earned in cases of violation of duty (No. 2) are not 
 affected by the foregoing enactment. 
 
 It is also reserved to the laws of the various countries to permit 
 the involuntary discharge of the seamen without any or with only 
 partial indemnity in other cases than those stated in Art. 543. 
 
 A7-t. 545. A seaman engaged for the voyage who maybe discharged 
 before the termination of the contract for other reasons than tliose 
 stated in Articles 543 and 544, shall, if the discharge takes place 
 before commencing the voyage, retain as an indemnity the deposit and 
 advances received, provided the sum is not above the amount usually 
 so advanced. 
 
 When no deposits or advances have been given, he is entitled to 
 one month's wages as an indemnity. 
 
 If the discharge occurs after the commencement of the voyage, he 
 shall receive, besides the wages earned, two months' wages if he has 
 been discharged in a European port, or four months' Avages if he has 
 been discharged in a non-European port, but he shall not receive more 
 than he would have been paid if he had only been discharged at the 
 termination of the voyage. 
 
 He is, moreover, entitled to a free return-passage (Art. 517) to the 
 port where he has been engaged, or, at the option of the master, to a 
 corresponding indemnity. 
 
 Art. 546. "When the wages have been fixed in a lump sum, the 
 wages earned (Articles 537, 539, 542, 544, 545) and the wages for one, 
 two, or four months (Art. 545) shall be calculated accor ing ot 
 Art. 519. 
 
 Art. 547. The seaman is entitled to demand his discharge when the
 
 710 MAIUTIME LEGISLATION. 
 
 master is guilty of a gross violation of his duties towards him, more 
 especially of severe ill-treatment, and of withholding food and drink 
 without sufficient reason. 
 
 The seaman who takes his discharge for such a reason shall have 
 the same claims as in the case contemplated by Art. 545. 
 
 The laws of the various countries may determine whether, and for 
 what other causes, the seaman shall be entitled to demand his dis- 
 charge. 
 
 The seaman demanding his discharge shall not cjuit the service in a 
 foreign country without the consent of tlie competent consul (Art. 
 537). 
 
 Art. 548. If a seaman becomes invalided or wounded after having 
 entered the service, the owner shall defray the expenses of his care and 
 restoration — 
 
 (1) If the seaman on account of the disease or wound did not com- 
 
 mence the voyage, up to the expiration of three months 
 from the time he became invalided or wounded ; 
 
 (2) If he enters upon the voyage and returns in the vessel to the 
 
 port of registry, or the port where he has been engaged, up 
 to the expiration of three months from the return of the 
 ship ; 
 (.3) If he enters upon the voyage and returns in the vessel, but in 
 case the voyage does not terminate in either of the aforesaid 
 ports, then up to the expiration of six months from the 
 return of the ship ; 
 (4) If he had to be left behind ashore during the voyage, up to the 
 expiration of six months from the time that the vessel has 
 continued its voyage. 
 In the two latter cases the seaman is also entitled to a free return- 
 passage (Art. 517) to the port where he has been engaged, or, at the 
 oj)tion of the owner, to a corresponding indemnity. 
 
 Art. 549. The invalided or wounded seaman shall receive his 
 Avages — 
 
 If he does not commence his voyage, up to the time of discon- 
 tinuing his duties; 
 If he enters upon the voyage and returns in the vessel, up to 
 
 the termination of the return voyage ; 
 If he had to be left behind ashore during the voyage, up to the 
 day on which he leaves the vessel. 
 Jf the seaman has been injured in defence of the vessel, he is 
 licsides entitled to a fair reward, which, if necesh;ary, sliall be fixed by 
 the judge.
 
 APPENDIX. 711 
 
 Art. 550. The Articles 548 and 549 are not to be applied to seamen 
 whose disease or wounds have been caused by their own proliibited 
 acts or who are sulFering from sypliiiitic complaints. 
 
 Art. 551. When a seaman dies after having entered the service, the 
 owner shall pay the wages (Art. 54G) earned up to the day of his death 
 and defray the funeral expenses. When a seaman has been killed 
 while defending the vessel, the owner has, in addition, to pay a fair 
 compensation, which, if necessary, is to be fixed by the judge. 
 
 As regards the projjerty left on board by the seaman who died 
 during the voyage, the master shall make an inventory thereof, take 
 care of the eflects, and sell the same, if necessary. 
 
 Art. 552. The enactments of Art. 453 are equally applicaljlc to tiio 
 claims mentioned in Articles 548, 549, and 551. 
 
 Art. 553. It is reserved to the laws of the various countries to define 
 the conditions without which no seaman can be left behind in a foreign 
 country against his will, and, at the same time, to regulate the master's 
 proceedings in such a case. 
 
 Art, 554. Persons not belonging to the crew, but appointed on board 
 a vessel as engineers, stewards, or in any other capacity, shall, in so far 
 as the contrary has not been agreed upon, be subject to the same rights 
 and duties as have been enacted in this part with respect to the crew. 
 
 No difference shall be made whether they have been engaged by the 
 master or by the owner. 
 
 Art. 555. The share in the freight or in the profits which may have 
 been accorded to the seaman shall not be considered as Avages in the 
 sense of this part. 
 
 Art. 556. It is reserved to the laws of the various countries to com- 
 plete the provisions of this part, as well with reference to the matter of 
 wages mentioned in the foregoing Article as in other respects. 
 
 FIFTH PART. 
 
 Concerning Freight earned by the Conveyance of Goods. 
 
 Art. 557. The contract of affreightment for the conveyance of goods 
 refers either — 
 
 (1) To the whole vessel, or to a proportionate part of, or to a specially 
 
 defined space in, the same ; or, 
 
 (2) To single packages (general cargo). 
 
 Art. 558. When the whole vessel, or a proportionate part of, or a spe- 
 cially defined space in, the same, is being let, each party may demand
 
 712 MAEITDIE LEGISLATION. 
 
 tliat with respect to the contract a docuiijent in writing be executed 
 (charter-party). 
 
 Art. 559. When a whole vessel is chartered, the cabin is not included, 
 but without the consent of the charterer, no goods are allowed to be 
 shipped in the same. 
 
 Art. 560. In case of a contract of affreightment of whatever nature 
 the shipowner ' is bound to deliver the vessel in a seaworthy condition 
 (Art. 557). 
 
 He is answerable to the charterer for every damage arising from the 
 defective condition of the vessel, unless the defects could not have been 
 discovered in spite of all possible care. 
 
 Art. 561. The master sliall, for the purpose of taking in the cargo, 
 remove the vessel to the place assigned to him by the charterer, or, 
 when the vessel has been chartered by more than one party, then by all 
 the charterers. 
 
 The master shall remove the vessel to the loading-place customary 
 at the port, if the aforesaid notice has not been given in time, or if tlie 
 siime place is not assigned by all the charterers, or if the depth of the 
 water, the safety of the vessel, or the local regulations or arrangements 
 do not permit compliance with their orders. 
 
 Art. 562. In default of an agreement to the contrary, or other re- 
 gulations at the port of loading, or if none exist, then of other local 
 customs, the goods shall be brought free alongside of the vessel by the 
 charterer, while the expense of taking them into the vessel shall be 
 borne by the shipowner. 
 
 Art. 56.3. The sliipowner is bound to accept otlier goods tendered to 
 liim by the charterer for shipment to the same port instead of those 
 originally agreed to, pi'ovided his position is not thereby altered to his 
 disadvantage. 
 
 This provision does not apply when the goods have been specially 
 named in the contract and not merely generally described by their class 
 or .sort. 
 
 Art. 564. The charterer or shipper who gives a wrong description of 
 the goods sliipped, or who ships contraband of war, or goods the exporta- 
 tion of M-hicli, or their importation into the port of destination, has been 
 j)rohibited, or who violates at the shipment the legal regulations, and 
 more especially the laws of police, excise, and customs — if any blame 
 attaches to him — becomes, not only answerable for the delay caused 
 
 ' The original expression is ' vcrfraclitcr,'— one who lets the vessel ; the English 
 language not having a word corresponding to this expression, I have taken ' ship- 
 owner ' to designate the party who in almost all cases is the only one justified to 
 kl a vcBscl cither himself or through his legal representative.
 
 APPENDIX. 713 
 
 through his conduct aiul for all other loss, to tho shipowner, but also 
 to all other parties mentioned in the first part of Art. 479. 
 
 His liability towards the other parties is not excluded by the fact of 
 his having acted with the consent of the master. 
 
 The seizure of the goods gives him no right to refuse the payment 
 of the freight. When the goods endanger the vessel or the remainder 
 of the cargo, the master may land them, or, on urgent necessity, throw 
 them overboard. 
 
 Art. 565. Whoever ships any goods on board without tho knowledge of 
 the master shall likewise be answerable for any damage resulting there- 
 from, in conformity witli the foregoing Aiticle. The master may reland 
 such goods, or, if necessary, throw them overboard if they endanger the 
 vessel and the rest of the cargo. When the master has kept them on 
 board, they must pay the highest freight charged at the loading port, 
 at the time of shipment, in respect to such voyages and goods. 
 
 Art. 566. Witliout permission being given l)y the charterer the ship- 
 owner is not at liberty to ship the goods in another vessel. If he acts 
 contrary to this provision, he is answerable for all damages of which he 
 does not prove that they would have arisen and remained at the del)it 
 of the charterer, even if the goods had not been shipped in another 
 vessel. 
 
 This Article does not apply to transhipments in other vessels which 
 in cases of distress take place after the commencement of the voyage. 
 
 Art. 567. Without the consent of the shipper his goods shall not be 
 shipped on deck or suspended at the sides of the vessel. 
 
 It is reserved to the laws of the various countries to decree that the 
 foregoing enactment, as far as it relates to deckloads, shall not apply to 
 the coasting trade. 
 
 Art. 568. When the whole vessel has been chartered, the master 
 shall inform the charterer as soon as he is ready and prepared to take 
 the cargo on board. 
 
 The loading-days count fi'om the day after that on which the notice 
 has been given. 
 
 If so agreed, the shipowner shall wait for the cai'go even beyond 
 the loading-days (days on demurrage). 
 
 Unless an agreement to the contrary has been made, no extra 
 remuneration can be demanded for the time fixed for loading. The 
 charterer is, however, bound to pay the shipowner an indemnity for 
 the extra time (demurrage). 
 
 Art. 569. If the loading-days have not been fixed by contract, they 
 are determined by the local regulations at the port of shipment, and in 
 default by tJie local custom. Should such local custom not exist, a
 
 714 MARITIME LEGISLATION. 
 
 fair period of time according to the circumstances of the case sliall be 
 taken as the time for loading. 
 
 "VMien it has been contracted that a vessel shall wait beyond the 
 lav-days on payment of demurrage, but when the duration of the time 
 lias not been fixed, it shall be taken at fourteen days. 
 
 When the contract contains only the sum payable for demurrage, 
 it shall be considered that, although the vessel is bound to lie on de- 
 murraf^e, the duration of the time has not been settled. 
 
 Art. 570. AVhen the duration of the loading- days, or the day on 
 which they shall expire, has been fixed by agreement, the days on 
 demurrage begin at once at the expiration of the loading-days. 
 
 In default of such agreement, the days on demurrage commence 
 only after the shipowner has given notice to the charterer that the 
 loading days have expired. The shipowner can give notice to the 
 charterer even before the termination of the loading-days on wliat day 
 he considers them expired. In this case no further notice on the part 
 of the shipowner is required at the expiration of the loading-days and 
 the beginning of the days on demurrage. 
 
 A7-t. 571. After the expiration of the loading- days, or in case a 
 further term on demurrage has been agreed to, the shipowner, after the 
 expiration of such term, is not obliged to wait any longer for the cargo. 
 He is, however, bound to give to the charterer at least three days' 
 notice before the expiration of the loading-days, or of the days on 
 demurrage, of his intention not to wait any longer. 
 
 When this has not been done, the loading-days, or the days on 
 dennirrage, do not expire until the notice lias been given and three 
 days have elapsed subsequently to its delivery. 
 
 The three days mentioned in this Article shall in all cases be con- 
 sidered to mean running calendar days without interruption. 
 
 Art. 572. The notices of the shipowner, mentioned in Articles 570 
 and 571, need not be given in any particular form. When the 
 charterer refuses satisfactorily to acknowledge the receipt of such a 
 notice, the shipowner may cause a public document to be executed 
 thereupon at the expense of the charterer. 
 
 Art. 573. W^hen the demurrage has not been stipulated by contract, 
 it shall be fixed by the judge at his discretion, and, if necessary, after 
 examination of experts. 
 
 In fixing the demurrage, the judge shall take into consideration the 
 merits of the case, more particularly the wages, the cost of keeping the 
 crew, and the lo.ss of freight falling upon the shipowner. 
 
 Art. 574. In calculating the loading-days and the days on demur- 
 rage th(^y are counted as running days, without interruption ; more
 
 APPENDIX. 715 
 
 particularly are included Sundays and holidays, as ^vell as those days 
 on whieii the charterer is accidentally prevented from delivering cargo. 
 Those days are, however, to be excluded on -wliifh, })y reason of wind 
 and weather, or from any other accident — 
 
 (1) The delivery to the vessel not only of the stiitulated, Ijut also 
 of every description of cargo ; or, 
 
 ("2) Tiie taking in of the cargo 
 has been prevented. 
 
 Art. 575. The sliipowner is entitled to demurrage for the days 
 during which he has been longer detained owing to tlie delivery of any 
 kind of cargo being prevented, even when such prevention has occurred 
 during the loading-days. For those days, however, during which he 
 lias been detained in consequence of any prevention having arisen in 
 the taking in of the cargo, no demurrage is due, even if such prevention 
 has occurred during the days on demurrage. 
 
 Art. 576. When local regulations or local customs determine the 
 duration of the loading-days according to Art. 569, the two foregoing 
 Articles apply to the calculation of the same only so far as the local 
 regulations or local customs do not decide anything to the contrary. 
 
 A7't. 577. When the shipowner has stipulated that the loading must 
 be finished by a certain day, he is not obliged to wait any longer be- 
 cause the delivery of every description of cargo (Art. 574, No. 1) has 
 been px-evented. 
 
 Art, 578. In case the shipowner has to receive the cargo from a 
 third party, and when such third party cannot be found, notwithstanding 
 that the readiness of the shipowner to take the cargo on boaixl has been 
 made known in the manner customary at the place, or when such third 
 party refuses to deliver the cargo, the shipowner shall at once inform 
 the charterer thereof, and only wait for the cargo until the expiration 
 of the loading-days, but not during the days on demurrage that may 
 have been stipulated, unless he should receive instructions to the 
 contrary within the loading-days from the charterer or his represen- 
 tative. 
 
 When an undivided period of time has been fixed for loading and 
 discharging the vessel together, one-half of such period shall be con- 
 sidered in the above-mentioned case as the time stipulated for loading. 
 
 Art. 579. If required by the charterer, the shipowner is bound to 
 enter upon the voyage even without the full cargo contracted for. In 
 such a case, however, he shall not only receive the full freight and 
 demurrage, if any, but he may also demand additional security for so 
 much as the incomplete cargo does not offer sufficient security for the 
 full freight. The cliai'tercr shall, besides, repay any additional ex-
 
 71G -MAKITIME LEGISLATION. 
 
 penses arising to the shipo^vner on account of the incompleteness of the 
 
 cargo. 
 
 Art. 580. Shoukl the charterer not have completed the delivery of 
 the carcro at the expiration of the time during which the shipowner 
 is bound to wait for the same (lay-days), the shipowner is at liberty, 
 if the charterer does not witlidraw from the contract, to commence 
 tlie voyage, and to enforce the claims mentioned in the foregoing 
 Article. 
 
 Art. 581. Before a voyage has been commenced, whether it be a 
 sin"-le or a compound voyage, the charterer may withdraw from the 
 contract, on paying one-half of the stipulated freight as dead freight. 
 
 In applying this provision, the voyage shall be considered as having 
 been commenced — 
 
 (1) When the charterer has already given the master his sailing 
 
 orders ; 
 
 (2) When the charterer has already delivered the cargo wholly or in 
 
 part, and the lay-days have expired. 
 
 Art. 582. When the charterer avails himself of the right mentioned 
 in the foregoing Article after delivery of cargo, he shall likewise bear 
 tlie expenses of loading and discharging, and pay demurrage for the 
 time occupied by the quickest possible unloading, so far as it has 
 not been completed within the period fixed for the loading (Art, 573). 
 
 Tlie shipowner shall submit to the delay caused by such unloadiiig 
 even when it exceeds the stipulated time ; he shall, however, be en- 
 titled to demurrage for the period after the expiration of the same, 
 and to an indemnity for t)ie loss occasioned tln-ough any such excess of 
 time, provided that such loss can be proved to exceed the amount of 
 such demurrage. 
 
 Art. 583. After the voyage has been commenced in the sense of 
 Art. 581, the cliarterer can only withdraw from the agreement, and 
 demand the unloading of the goods, on paying the full freight as well 
 as all other claims of the shipowner (Art. 615), and on paying or 
 securing the claims mentioned in Art. G16. 
 
 In case of such unloading the charterer shall not only pay the 
 additional expenses thercljy incurred, Imt also indemnify the shipowner 
 for the loss caused by the delay. 
 
 The shipowner is not obliged to alter the voyage or to run into a 
 l)ort for the purpose of such unloading of the goods. 
 
 Art. 584. The charterer shall only pay two-thirds, instead of the 
 full amount of the freight, as dead freight, in case the vessel has been 
 chartered for the round, or when the vessel, for tlie pur})ose of per- 
 forming the contnict, has to make a voyage from another port in order
 
 ArPENDIX. 717 
 
 to take in the cargo, and wlien in both these cases such witlidrawal has 
 been notified before commencement, in the sense of Art. 581, of tlie 
 return voyage or the voyage out of tlie loading port. 
 
 Art. 585. In other compound voyages the shipowner shall receive 
 the full amount of the freight as dead freight if the charterer declares 
 such witlidrawal previous to the commencement of the last part of the 
 voyage in the sense of Art. 581 ; a fair portion shall, however, be 
 deducted, if there is reason to suppose that, by the cancelling of the 
 contract, the shipowner has saved expense, and has had an opportunity 
 of earning another freight. 
 
 When the parties concerned cannot agree as to the deduction and 
 as to its amount, the judge shall make an order according to the best 
 of his judgment. But in no case shall such deduction exceed one-half 
 of the freight. 
 
 Ai't. 586. When the charterer has delivered no cargo at the expira- 
 tion of the waiting time, the shipowner is no longer bound by the con- 
 tract, and is entitled to enforce against the charterer all such claims as 
 he would have had if the charterer had withdrawn from the same 
 (Articles 581, 584, 585). 
 
 Art. 587. The freight which the shipowner receives for other goods 
 forming part of cargo shall not be deducted from the dead freight. 
 
 The provisions of the first part of Art. 585 are, however, not affected 
 by this enactment. 
 
 The right of the shipowner to claim dead freight does not depend 
 upon the actual performance of the voyage contracted for. 
 
 The right of the shipowner to demand demurrage and payment of 
 all other claims which he may be entitled to make (Art. 615) is not 
 excluded by the dead freight. 
 
 Art. 588. If a proportionate part or a specially defined space of tlie 
 vessel has been chartered, the Articles 568-587 shall apply with the 
 following modifications, viz. — 
 
 (1) In those cases where, in accordance with the foregoing enact- 
 
 ments, the shipowner ought to have been satisfied with a 
 portion of the freight, he shall receive the full freight as 
 dead freight, unless all the charterers withdi'aw fi'om the 
 contract or deliver no cargo. 
 The freight for such goods, however, which the shipowner 
 has engaged in lieu of those not delivered, shall be deducted 
 from the full fi'eight. 
 
 (2) In the cases contemplated by Articles 582 and 583, the charterer 
 
 cannot demand the unloading of his goods if the voyage 
 would thereby be delayed, or a transhipment be necessitated,
 
 718 MARITIME LEGISLATION. 
 
 except with the consent of the. whole of the charterers con- 
 cerned. The charterer shall besirles repay all costs and make 
 good any loss caused by such unloading. 
 Should all cliarterers avail themselves of the right of such 
 -s\ithdrawal, the provisions of Articles 582 and 583 remain 
 in force. 
 
 Art. 589. When the contract of aflfreightment has been made for a 
 general cargo, the charterers shall deliver the goods without delay, at 
 the demand of the master. 
 
 If the charterer is behind time, the shipowner is not bound to wait 
 for the delivery of the goods ; the charterer, nevertheless, being oljliged 
 to pay the full freight, if the voyage has been commenced without them. 
 Allowance is, however, to bs made for the freight of such goods as the 
 owner has taken in lieu of those not originally delivered. 
 
 The shipowner intending to enforce such claim for the full freight 
 against the charterer in arrear shall, under penalty of the loss of such 
 claim, give notice to the charterer thereof previous to the departure of 
 the \-essel. The provisions of Art. 572 apply to the aforesaid notice. 
 
 Art. 590. The charterer can, after the shipment has been effected, 
 withdraw from the contract, and demand the discharge of his goods on 
 paying the full freight, as well as all other claims of the shipowner 
 (Art. 615), and on paying or securing all such claims as mentioned in 
 Art. 616, only in accordance with the first part of Art. 588, No. 2. 
 
 Tlie provisions of the last pai'agraph of Art. 583 apply equally to 
 these cases. 
 
 Art. 591. When a vessel is laid on the bex-th for a general cargo, and 
 the time of departure has not been stipulated, the judge shall, on the 
 application of the charterer, and according to the circumstances of 
 the case, fix the date beyond which the commencement of the voyage 
 cannot be delayed. 
 
 Art. 592. In all cases of contracts of aflreightment, the charterer 
 shall provide the master with all documents required for the shipment 
 of his goods within tlie period during which such shipment ought to 
 have been etiected. 
 
 Art. 593. The master shall, for the pui'pose of discharging the 
 cargo, remove the vessel to such place as is assigned to him by the party 
 to whom the cai-go is to be delivered (consignee), or, if the cargo is to 
 be delivered to several parties, to such place as is assigned to hin) by 
 all the consignees. 
 
 If the aforesaid order has not been given in due time, or if the 
 same j)lace is not assigned by all the consignees, or if the depth of the 
 water, the safety of the vessel, or the local regulations or arrangements
 
 AVPENDIX. 719 
 
 do not permit coinijliaiice with such orders, the master shall remove tlie 
 vessel to such place of discharge as is customary at the port. 
 
 Art. 594. In default of an agreement to the contrary, or of other 
 regulations at the port of discharge, or, if none exist, then, of other 
 local customs, the expenses of unloading out of the vessel are to be 
 borne by the shipowner, but all other expenses relating to the discharge 
 are to be borne by the consignees of the cargo. 
 
 Art. 595. When the whole vessel has been chartered, the master 
 shall give notice to the consignee as soon as he is ready and prepared 
 to discharge. 
 
 Hhould the consignee be unknown to the master, the notice shall 
 be given by public advertisement in the manner customary at the place. 
 The days for discharging commence with the day after that on which 
 the notice has appeared. 
 
 Beyond the time fixed for discharging the shipowner has only to 
 wait for the removal of the cargo, when an agreement has been made 
 to that effect (days on demurrage). 
 
 Unless an agreement to the contrary has been made, no extra allow- 
 ance can be demanded for the time fixed for the dischai'ge. For the extra 
 time, however, the shipowner is entitled to an indemnity (demurrage). 
 
 When the demurrage has not been settled by contract it shall be 
 fixed by the judge in conformity with Art. 573. 
 
 Art. 596. If the days for discharging have not been fixed by con- 
 tract they are to be determined by the local regulations at the port of 
 discharge, and, in default, by the local custom. Should no such local 
 custom exist, a fair period of time, according to the circumstances of 
 the case, shall be taken as the days for discharging. 
 
 In case it has been contracted that a vessel shall wait beyond the 
 lay-days on payment of demurrage, but the duration of such time on 
 demurrage has not been fixed, it shall be taken at fourteen days. 
 
 When the contract contains only the amount paya])le for demurrage, 
 it is to be presumed that, although the vessel is bound to lie on demur- 
 rage, the duration of such time has not been finally agreed upon. 
 
 Art. 597. Should the duration of the days for discharging, or the 
 day on which they shall expire, have been fixed by agreement, the 
 days on demurrage begin at once with the expiration of such day.s for 
 discharging. 
 
 In default of such an agreement the days on demurrage commence 
 only after the shipowner has given notice to the consignee that the 
 days for discharging have expired. The shipowner can give notice to 
 the consignee, even before the expiration of the days for discharging, 
 on what day he considers them at an end In this case no further
 
 720 MAIUTI.ME LEGISLATIOX. 
 
 notice on the part of the shipowner is required at the expiration of the 
 days for discharging and at the beginning of the days on demurrage. 
 
 The provisions of Art. 572 apply to such notices required of the 
 shipowner as are mentioned in this Article. 
 
 Art. 598. In calculating the days for discharging, and the days on 
 demui-rao-e, they are counted as running days without interruption, 
 moi-e particularly Sundays and holidays are included, as well as sucli 
 other days on which the consignee had been accidentally prevented from 
 receiving the cai-go. 
 
 Excluded are, however, such days on which, by reason of wind and 
 weather or by any other accident — 
 
 (1) The conveyance not only of the goods on board the vessel but 
 
 of every description of cargo from the shi^j to the shore ; or, 
 
 (2) The unloading out of the vessel 
 has been prevented. 
 
 Art. 599. The shipowner is entitled to demurrage for all days 
 during which he has been compelled to wait in consequence of an 
 impossibility to convey any description of cargo from ship to shore, 
 even should such prevention have occurred during the days stipulated 
 for discharging. For those days, however, during which he has been 
 compelled to wait in consequence of an impossibility to unload the 
 vessel, no denmn-age is due, even should such prevention have occun-ed 
 during the days on demurrage. 
 
 Art. 600. When local regulations or local customs determine the 
 duration of the days for dischai-ging according to Art. 59G, the two 
 fore'^'oin'T Articles apply to the calculation of tlie same only so far as 
 the local regulations or local customs do not decide anything to the 
 contrary. 
 
 Art. 601. In case the shipowner has stipulated that the discharge 
 must be finished by a certain day, he is not obliged to wait any longer 
 because tlie conveyance of any description of cargo from ship to shore 
 (Art. 598, No. 1) has been prevented. 
 
 Art. 602. Should the consignee have declared his readiness to 
 receive tlie goods but delays their reception beyond the time accorded 
 to liim, the shipowner may cause their deposit under legal custody or 
 in any other safe manner, giving notice tliei-eof to the consignee. 
 
 The master is bound to proceed as herein described, and to give 
 at the same time notice thereof to the charterer, in case the consignee 
 declines to take delivery of the goods or withliolds any satisfactory 
 an.swer upon the notice prescribed in Art. 595, or if the consignee is 
 not to be found. 
 
 Art. 60:3. In so far as, by the delay of (lie consignee or l)y any
 
 APPENDIX. 721 
 
 proceeding caused by the depositing of the goods, the days for dis- 
 charging have been exceeded without any fault of the master, the 
 shipowner is entitled to demurrage (Art. 59")), Ijut without prejudice 
 to las right to claim such higher damages as he may be able to prove 
 for such detention, provided it does not come within the period which 
 he has contracted to wait on demurrage. 
 
 Art. 604. The Articles r»i)r)-G03 likewise apply if a proportionate 
 part or a specially defined space of the vessel have been chartered. 
 
 Art. 605. The consignee of any general merchandise is l>ound to 
 receive the same without any delay at the master's demand. In case 
 tlie consignee is not known to the master such demand shall be made 
 by public advertisement in the manner customary at the place. 
 
 The pi'oxLsions of Art. 602 likewise apply iu respect to the right 
 and the obligation of the master to deposit the goods. The notice to 
 the charterer prescribed iji Art. 602 may be given by public advertise- 
 ment in the manner customary at the place. 
 
 For those days by which, by the delay of the consignee, or by any 
 proceeding caused by the depositing of the goods, the period within 
 which the vessel ought to have been discharged has been exceeded, 
 the shipowner is entitled to demurrage (Art. 595), without prejudice 
 to his right to claim such higher damages as he may be able to prove. 
 
 Art. 606. If the whole vessel, or a propoi-tionate part, or a specially 
 defined space of the same, has been chartered, and the chai-terer has 
 eflfected any re-charters for the conveyance of any general merchandise, 
 the Articles 595-603 remain in force respecting the rights and duties 
 of the original owner of the vessel. 
 
 Art. 607. The shipowner is answerable for any damage arising 
 through loss of or injury to the goods, from the time of their being 
 shijiped until their delivery, unless he can prove that such loss or injury 
 has been caused l)y the act of God (vis major), or by tlie natural con- 
 dition of the goods, more particularly by vice propre, by diminution in 
 quantity, by ordinary leakage, &c., or by such defective packing as 
 could not be noticed externally. 
 
 Loss and injury arising from a defective condition of the vessel, 
 which in spite of all possible caution could not be discovered (Art. 560, 
 par. 2), are to be considered as loss and injury by the act of God. 
 
 Art. 608. The shipowner is not answerable for jewels, specie, and 
 valuable documents, unless the description and value of the articles 
 were declared to the master at the time of shipment. 
 
 Art. 609. Before the consignee has taken delivery of the goods, he, 
 as well as the master, may, in order to ascertain their condition 
 or quantity, cause a survey of them to be made by the competent 
 
 3 A
 
 722 MAPJTIME LEGISLATION. 
 
 authority, or hy such surveyors as are officially appointed for the 
 
 purpose 
 
 If circumstances permit, the adverse party, if on the spot, shall be 
 sumuioned to attend at these proceedings. 
 
 Art. 610. When the survey was not effected before delivery was 
 talcen, the consignee is bound to cause a supplementary surAey of the 
 foods, in conformity with Article 609, to be held within forty-eight 
 hours after the day of the delivery, under penalty of forfeiting all 
 claims for damage or partial loss, no matter whether such loss and 
 damage have been externally perceptible or not. 
 
 This clause does not apply to any losses and damages which may 
 have been caused by a malicious act of a person belonging to a crew. 
 
 Art. 61 L The expenses of the survey shall be borne by the party 
 who has demanded the same. 
 
 Should, hoAvever, the survey take place at the request of the con- 
 signee, and should a loss or damage be ascertained, for which the 
 shipoANiier is answerable, the expenses ha^e to be borne lay the latter. 
 
 Art. 612. When, in virtue of Art. 607, compensation has to be 
 made for the loss of goods, such compensation shall only be for the 
 value of the goods lost. This value shall bo decided by the market 
 price of goods of the same description and quality at the port of 
 destination of the lost goods at the commencement of the discharge of 
 the ship, or if the cargo is not discharged at that poi't, then at the 
 time of her arrival. When no market price can be ascertained, or 
 when douV)ts may arise as to such price or its applicability, more 
 particularly as regards the quality of the goods, the value shall then 
 be settled by competent persons. From the price shall be deducted 
 freiglit, duties, and expenses saved in consequence of the loss of the 
 goods. 
 
 When the port of destination of the goods is not reached, the 
 place where the voyage ends is substituted, or if it ends by the loss of 
 tlie ship, then the place to which the goods niay be brought in safety. 
 
 Art. 01. '5. Tlie regulations of Art. 612 are also applicable to those 
 goods for which the shipowner, according to Art. 510, must make 
 compensation. 
 
 If, in a case where goods have been disposed of by sale, the net 
 proceeds exceed the value according to Art. 612, then, in place of the 
 latter value, the net proceeds are to be taken into calculation. 
 
 Art. 614. Wlicn compensation must be made for any damage to 
 goods acc(jrdiiig to Art. 607, then only the deterioration in their value 
 caused by the damage is to be made good. Such deterioration shall 
 J»f coiisidfii'd ('(lu.il to Ihc diHriciicc bet ween the iiiaikct Nalnc of tlic
 
 APPENDIX. 723 
 
 goods in tlieir (laiiiaged state— which is to be ascertained by competent 
 persons — and the price stipulated in Ai-t. Gr2 after deduction of 
 Customs' duties and other expenses as far as tliey may have l^een saved 
 in consequence of such damage. 
 
 Art. 615. By taking delivery of the goods, the consignee becomes 
 liable to pay the freight and all other charges in conformity with the 
 contract of affreightment or bill of lading, on tlie basis of which tlie 
 delivery is made, and further to pay demurrage, if any, to refund 
 Customs' duties and other advances, and besides to fulfil any otlicr 
 obligations devolving upon him. 
 
 The sliipowner shall deliver the goods to the consignee on payment 
 of the freight and on fulfilment of all other obligat'ons. 
 
 Art. 616. The shipowner is not bound to deliver the goods before 
 tlie amounts due from the same for general average, salvage^ assistance, 
 or bottomry have been paid, or security given for the amount. 
 
 If a bottomry bond has been given for account of the shipowner, 
 the above regulation holds good in spite of the shipowner's obligation, 
 to free the goods from their liability to the bottomry before they are 
 delivered. 
 
 Art. 617. The shipowner is not obliged to accept the goods in pay- 
 ment for the freight, whether they are destroyed or damaged or not. 
 
 When, however, vessels ' filled with liquids have leaked during the 
 course of tlie voyage to such an extent that they have become altogether 
 or for the most part empty, they may be left to the shipowner in pay- 
 ment of the freight and of his other claims (Art. 615). 
 
 By an agreement that the shipowner is not answerable for leakage 
 or by the clause, ' free from leakage,' such right is not prejudiced, but it 
 ceases altogether as soon as the packages have passed into the custody 
 of the consignee. 
 
 Should the freight have been fixed in a lump sum, and only some 
 packages totally or for the most part emptied, they can be left to the 
 shijiowner in proportionate payment of the freight and of his otlier 
 claims. 
 
 Art. 618. No freight is due for goods lost by any accident ; and any 
 freight advanced sliall be returned unless an agreement to the contrary 
 has been made. 
 
 This provision applies also when the whole sliip or a proportionate 
 part or a specially defined space of the same has been chartered. If in 
 such a case the freiglit has been stipulated in a lump sum, tlie loss of a 
 part of the goods gives a right to a proportionate deduction fi-om the 
 freight. 
 
 ' Barrels, casks or cases. 
 
 3 A 2
 
 724 MARITIME LEGISLATION. 
 
 ArL 619. Xotwitlistanding any non-delivery, the freight must be 
 paid for goods that have been lost in consequence of their natural con- 
 dition (Art. 607), as well as for animals that have died during the 
 
 voyage. 
 
 The provisions concerning General Average will enact to what 
 extent restitution shall take place of the freight for goods sacrificed in 
 cases of General Average. 
 
 Art. 620. For goods the conveyance of which has been undertaken 
 without the freight having been agreed upon, the current freight shall 
 be paid which rules in the port of loading at the time of shipment. 
 
 For goods beyond the quantity contracted for with the charterer 
 which may have been accepted for conveyance, such freight shall be 
 paid as is in proportion to the originally agreed freight. 
 
 Art. 621. When the freight has been stipulated for measure, weight, 
 or quantity, it shall in doubtful cases be considered, that the measure, 
 weight, or quantity delivered, not that taken in, shall decide the 
 amount of freight due. 
 
 Art. 622. Primage, gratuities, &c., cannot be demanded in addition 
 to the freight, unless they have been previously agreed upon. 
 
 The ordinary and extraordinary expenses of navigation, as : pilot- 
 ace, harbour dues, light dues, towage, quarantine expenses, charges 
 for cutting passages through the ice, &c., are to be borne by the ship- 
 owner alone, unless an agreement to the contrary was effected ; even 
 if the contract of affreightment should not specially bind him to per- 
 form the acts causing this expenditure. 
 
 Cases of General Average, as well as cases Avhere expenses are 
 incurred for the preservation, saving, or rescuing of the cargo, are not 
 included in this Article. 
 
 Art. 623. When a time chai'ter has been entered into, it commences, 
 in default of an agreement to the contrary, from the day following that 
 on which the master has given notice that he is ready and prepared to 
 take in cargo, or to proceed in ballast ; should, however, in the latter 
 case, such notice not have been given on the day before proceeding on 
 the voyage, tlie freight shall be paid from the day on which such 
 voyage is commenced. 
 
 When demurrage or days on demurrage have been agreed upon, the 
 freight per diem begins in all cases only from the day on which the 
 voyage has been commenced. 
 
 The freight per diem terminates with the day on which the dis- 
 charge has liecn completed. 
 
 Wljon the voyage is delayed oi- interrupted without the fault of 
 the sliipowiier, the freight must be coiitiiiuod to ])i> paid fnr tlic inter-
 
 APPENDIX. l-lTi 
 
 mediate period, subject to the provisions of the Articles GiJO and 
 G40. 
 
 Ait. 624. A shipowner lias a lien upon the goods for tlie claims 
 mentioned in Art. GIT). 
 
 The lien exists as long as the goods are retained or deposited ; it 
 remains in force even after the delivery, if it is legally enforced within 
 thii'ty davs after the comi>]('ti<in of suL-h (U'livery ; it ceases, however, 
 as soon as, previous to its judicial enforcement, the goods j^ass into the 
 custody of a third party, who does not hold them on belialf of the con- 
 signee. 
 
 Ar-t. G25. In case of a dispute concerning the claims of the sliip- 
 owner, the latter is bound to give up the goods as soon as the sum in 
 dispute lias been deposited witli a law court or any other authority or 
 institution empowered to receive deposits. 
 
 After the delivery of the goods the shipowner is entitled to receive 
 tlie sum so deposited, on giving sufficient security for it. 
 
 Art. 626. As long as the lien of the shipowner exists, the law court 
 may, at liis request, decree tliat the whole or a proportionate part 
 of the goods be sold by public auction for the satisfaction of his 
 claims. 
 
 The shipowner may exercise this riglit also against the other 
 creditors and the assignees of any bankrupt proprietor of the goods. 
 
 Before the decree of sale is issued, the court shall give the interested 
 parties, in case they are present at the place, an opportunity to be 
 heard respecting such request of sale. 
 
 Art. 627. When the shipowner has parted with the goods, he can- 
 not make the charterer responsible for any such claims as he may have 
 against the consignee (Art. 615). Only in case the charterer would 
 make a profit out of the loss of the shipowner can any allowance take 
 place. 
 
 Art. 628. When the shipowner has not delivered the goods, and 
 avails himself of the right stipulated in the first section of Art. 626, 
 without, however, being fully compensated by the sale of such goods, 
 he can make the charterer responsible for so much of his claim arising 
 out of the contract of affreightment made between him and the 
 charterer, as had not been previously satisfied. 
 
 Art. 629. In case the consignee does not take delivery of the goods, 
 the charterer is obliged to satisfy the shipowner for the freight and his 
 other claims, according to the contract of affreightment. 
 
 Should delivery of the goods be taken by the charterer, the Articles 
 593-626 apply in such a manner that the charterer takes the place of 
 the consignee named in these articles. In such a case, the shipowner
 
 726 MARITIME LEGISLATION. 
 
 has more particularly the right of retention and lien in respect to liis 
 claims upon the goods, in conformity with Articles G2-4, 625, 626, as 
 well as the right stipulated in Art. 616. 
 
 A7-f. 630. The conti-act of affreightment is at an end, and neither 
 party is bound to indemnify the other, if, before the commencement of 
 the voyage, and through an unforeseen incident — 
 
 (1) The vessel is lost, particularly — 
 
 If it is lost by accident. 
 
 If it has been condemned as incapable or unworthy of repair 
 
 (Art. 444), and if, in the latter case, it is sold without 
 
 delay by public auction. 
 If it is captured by pirates. 
 
 If it is seized or detained and condemned as good prize. 
 Or, 
 
 (2) The goods described not merely by their class or sort but 
 
 specially defined in the contract of affreightment are lost. 
 Or, 
 
 (3) The goods, although not specially defined in the contract of 
 
 affreightment, are lost after they have been delivered on 
 board, or received by the master at the loading berth in 
 order to be taken on board. 
 Should, however, in the last-mentioned case (No. 3) the loss of the 
 goods have occurred within the lay-days (Art. 580), the contract is not 
 to be considered at an end, in case the charterer has without delay 
 declared his readiness to deliver other goods (Art. 563) instead of those 
 lost, and commenced such delivery within the lay-days. He is bound 
 to complete the shipment of such other goods within the shortest 
 possible time, to bear any additional cost arising in consequence of any 
 such shipment, and to indemnify the shipowner for any damage result- 
 ing therefrom in so far as the lay-days have been exceeded. 
 
 Art. 631. Either party can withdraw from the contract without 
 being liable for damages — 
 
 (1) When before the commencement of the voyage — 
 
 The vessel is placed under embargo, or taken possession of 
 
 for the service of the country or a foreign power. 
 The trade with the port of destination is prohibited. 
 The loading port or the port of destination is blockaded. 
 The exportation of the goods, to be shipped according to the 
 contract of affreightment, from the port of loading, or 
 their importation into the port of destination is prohibited. 
 The vessel is by a Government order prevented from jiutting 
 to sea, or tlie voyage, or the transmission of the goods to
 
 APPENDIX. 727 
 
 be shipped according to tlie contract of affreightment, is 
 prohiijitcd. 
 In .mU foi'cgoing cases, however, the Govei'iiment order jus- 
 tifies the Avitlidruwal from tlie conti'/ict, only when the 
 impediment that has arisen is apparently not of short 
 duration. 
 (■J) When, before tJie commencement of the voyage, a war has been 
 declared in consequence of wliich the vessel, or the goods to 
 be shipped according to the contract of aflreightment, or 
 both, can no longer be consiilered free, and would be liable 
 to risk of captuie. 
 The exercise of the right granted to the charterer in Art. 5G3 is 
 not excluded in sucli cases as are piox ided for l)y the above enactment. 
 Art. G32. The contract of aH'reightment is terminated when, after 
 the commencement of the voyage, the vessel is lost by an unforeseen 
 incident (Art. 630, No. 1). 
 
 The charterer sliall, however, pay such proportion of the freight 
 for the goods saved or rescued, as the actually performed part of the 
 voyage may bear to the entire voyage (distance freight). 
 
 No claim for distance freight shall exceed the value of the goods 
 saved. 
 
 Art. 633. In the calculation of the distance freight is to be taken 
 into consideration not only the proportionate distance already performed 
 to that still to be completed, but likewise the comjoarative proportion 
 of expenditure in cost, time, danger, and labour ordinarily connected 
 with the part of the voyage already performed to that still to be com- 
 pleted. 
 
 Should the parties not be able to agree on the amount of the dis- 
 tance freight due, the judge has to decide upon it at his discretion. 
 
 Art. 63-1. The dissolution of the contract of aflreightment alters 
 nothing in the obligation of the master to take care of the cargo in the 
 absence of the parties interested, even after the loss of the vessel 
 (Articles 504-506). The master is, therefore, justified and obliged, and 
 in urgent cases even without pi'evious inquiry, as circumstances may 
 require, either to forward the cargo to the port of destination in another 
 vessel for account of the parties concerned, or to have it stored, or sold, 
 and, in case of its being forwarded, or stored, to sell a portion thereof 
 for the purpose of realising the funds necessary thereto and to its pre- 
 servation, or in case of its being forwarded, to take a bottomry bond 
 on the whole or a part of it. 
 
 The master is, however, not obliged to part with the cargo, or to 
 deliver it to another master for the purpose of its being for\viirded, un-
 
 723 MAPJTBIE LEGISLATION. 
 
 less the distance freight as well as all other claims of the shipowner 
 (Art. 615), and the contributions due from the cargo for General 
 Avera<^e, salvage and assistance, and bottomry, have been paid or 
 
 secured. 
 
 The shipowner is responsible for the fulfilment of the duties de- 
 volvin'T on the master according to the first section of this Article, to 
 the extent of the value of the ship, so far as anything has been saved 
 of it, and of the freight. 
 
 Art. 635. "When the goods are lost by any accident after the com- 
 mencement of the voyage, the contract of affreightment is at an end, 
 ■without either party being liable to damages ; the freight especially 
 shall not be paid either totally or partially unless the conti'ary has been 
 enacted by la-w (Art. 619). 
 
 Ai't. 636. When, subsequent to the commencement of the voyage, 
 anv of the incidents occur to which reference is made in Art. 631, 
 either party has a right to withraw from the contract without being 
 liable to damages. 
 
 When, however, any of the incidents mentioned in Art. 631, No. 1, 
 have occurred, the parties have, before being able to withdraw, to wait 
 for the removal of the impediment, three or five months respectively, 
 according as the vessel is in a European or in a non-European port. 
 
 Such period shall be calculated from the day of receiving notice of 
 the impediment, if the master is then at a port, or from that day on 
 wliich, after having received such notice, he first reaches a port with 
 the vessel. 
 
 The discharge of the vessel shall, in default of an agreement to the 
 contrary, take place at the port at which it is staying at the time of the 
 receipt of the notice of withdrawal. 
 
 Tlje charterer is bound to pay distance freight for such portion of 
 the voyage as is actually performed (Articles 632, 633). 
 
 When, in consequence of such impediment, the vessel has returned 
 to the port of departure or to any other port, in calculating the dis- 
 tance freight the nearest point to the port of destination, which the 
 vessel had reached, shall be taken as the basis for ascertaining the 
 distance actually performed. 
 
 The master is likewise bound to act, in any such cases, before and 
 after the dissolution of the contract of affreightment, in tlie interest of 
 the cargo, in conformity with the Articles 501-506 and 634. 
 
 Art. 637. When the vessel, after taking in its cargo, is detjiined in 
 the [)ort of loading before the commencement of the voyage, or in an 
 intermediate poit fjr in a port of refuge after its commencement, by 
 anv (if 1 lie cnicrgfMicies mcntiDiicd in Art. CuW, th(!n tJio expenses nf such
 
 APPENDIX. 7-2Q 
 
 detention (even if tlie requirements of General Average are not present) 
 are divided among sliip, frciglit, and cargo, according to tlie principles 
 of General A\erage, whether the contract is thereby put an end to, or 
 afterwards completely fulfilled. The expenses of the detention include 
 all the expenses enumerated in the second clause of Art. 708, No. 4 ; 
 but those of putting into and leaving port only when the vessel has 
 put into a port of refuge on account of the obstacle. 
 
 Art. G38, When, before the commencement of the voyage, only part 
 of the cargo has met with an incident, which, if it had extended over the 
 whole cargo, would, according to Ai'ticles G30 and G.31, have dissolved 
 the contract, or have entitled the parties to withdraw from it, the char- 
 terer is only authorised either to ship other goods instead of those con- 
 tracted for, provided the shipowner is not placed at a disadvantage by 
 carrying them (Art. 563), or to withdraw from the contract on payment 
 of one-half of the stipulated freight, and all other claims of the ship- 
 owner (Articles 581 and 582). In exercising these rights, the charterer 
 is, however, not bound to observe the time otherwise prescribed. But 
 he is bound to declare without delay which of these two alternatives 
 he intends to adopt, and if he decides upon the shipment of other goods, 
 to effect the same within the shortest possible time, as well as to pay 
 any additional expenses of such shipment, and, should the lay-days 
 have been exceeded, to make good the damage arising to the shipowner 
 in consequence thereof. 
 
 When he avails himself of neither of these alternatives, he must pay 
 the full fi"eiglit for that part of the cargo to which the incident applies. 
 At all events, he is bound to take out of the ship that part of the cargo 
 which is no longer free in consequence of war, prohibition of importa- 
 tion and exportation, or of a Government order. 
 
 When the incident occurs after the commencement of the voyage, 
 the charterer shall pay the full freight for such portion of the cargo as 
 is concerned therein, even when the master has been compelled to dis- 
 charge such portion in a different port from the port of destination, and 
 when he has subsequently continued the voyage with or without delay. 
 
 The provisions of Articles 618 and 619 are not afi'ected by this 
 Article. 
 
 Art. 639. The delay of the voyage caused by natural events or other 
 incidents before or after its commencement has, except in the casos of 
 Articles 631-638, no influence upon the rights and duties of the con- 
 tracting parties, unless the apparent object of the contract should 
 thereby have been frustrated. 
 
 The charterer is, however, authorised, during every delay caused by 
 an incident, and which appears likely to be of considerable duration, to
 
 7.30 MAIUTIME LEGISLATION. 
 
 discharge the goods already laden in the ship at his own risk and ex- 
 pense, and on giving security for their being re-shipped in good time. 
 If he omits to re-ship, he is bound to pay the full freight. In any case 
 he is answerable for all damages occasioned Ijy any discharge originated 
 bv him. In case the delay has arisen by a Government order, no freight 
 shall be paid during such delay, if the ship was under time charter 
 (Art. 6i'3). 
 
 Art. 640. In case the vessel must be repaired during the voyage, the 
 charterer may, at his option, either take delivery of the whole cargo at 
 the place where the vessel is staying on paying the full freight and the 
 other claims of the shipowner (Art. 615) and on paying or securing the 
 claims stated in Art. 616, or he may wait until the repairs have been 
 completed. In the latter case no freight is due under a time charter 
 during the progress of the repairs. 
 
 Art. 64:L Should the contract of affreightment be dissolved pursuant 
 to Articles 630-636, the expenses of unloading from the vessel are borne 
 by the shipowner, and all other expenses of the dischai ge by the char- 
 terer, When, however, the cargo only has been affected by the incident, 
 the whole of the expenses of the discharge are borne by the charterer. 
 The same rule applies if, in the case of Art. 638, part of the cargo is 
 discharged. When, in such a case, it was necessary to put into a port 
 for the purpose of discharging, the charterer shall also bear the port 
 charges. 
 
 Art. 642. The Articles 630-641 apply likewise, should the vessel have 
 to proceed in Ijallast to the port of shipment for the purpose of taking in 
 the cargo. In this case, however, the voyage is not considered to have 
 begun before it has actually commenced from the loading port. Has 
 the contract been dissolved subsequently to the vessel having reached 
 the loading port, but before the actual commencement of the voyage 
 thence, the slupowner shall receive for the ballast voyage an indemnity 
 to be fixed according to the principles of distance freight (Art. 633). 
 
 In other cases of compound voyages the above Articles shall apply, 
 unless the nature and contents of the contract stipulate anything to the 
 contrary. 
 
 Art. 643. Should the contract not extend to the whole of the vessel, 
 but oidy to a proportionate part, or to a specially defined space of the 
 same or to a general cargo, the Articles 630-642 apply, subject to the 
 following modifications, viz. — 
 
 (I) In the cases of Articles 631 and 636 either party is justified in 
 withdrawing from the contract innnediately after the occur- 
 rence of the impediment and without regard to its dura- 
 tion.
 
 APPENDIX. 7;il 
 
 (2) Til the case of Art. G38 the charterer cannot exercise the riglit 
 
 of "withdrawing from the contract. 
 
 (3) In the case of Art. 639, the charterer has only the right of tem- 
 
 porary discharge when all other charterers give their consent. 
 
 (4) In tlie case of Art. 640, the charterer can only take delivery of 
 
 the goods, on payment of the full freight and all other claims, 
 if during the repairs these goods had at any rate to be dis- 
 charged. 
 The provisions of Articles 588 and 590 are not affected ]>y this 
 enactment. 
 
 Art. 644. After the completion of each separate shipment the master 
 shall sign without delay and on return of the provisional receipt that 
 may have been given on delivery of the goods, as many bills of lading 
 as the shipper may demand. 
 
 All copies of the bills of lading must be identical, bear the same 
 date, and state how many copies have been issued. The master is en- 
 titled to demand from the shipper a copy of the bill of lading bearing 
 the latter's signature. 
 
 Art. 645. The bill of lading contains — 
 
 (1) The name of the master. 
 
 (2) The name and nationality of the vessel. 
 
 (3) The name of the shipper. 
 
 (4) The name of the consignee. 
 
 (5) The port of lading. 
 
 (G) The port of discharge, or the place at which orders for the same 
 are to be obtained (port of call). 
 
 (7) The description, quantity, and marks of the goods shipjied. 
 
 (8) The stipulations respecting the freight. 
 
 (9) The place and date on which it has been issued. 
 
 (10) The number of the copies issued. 
 
 Art. 646. When no agreement to the contrary has been made, the 
 bill of lading can be issued at the demand of the shipper to the order 
 of the consignee or simply to order. In the latter case, the word 
 ' order ' means the order of the shipper. 
 
 The bill of lading may also name the master as consigiiee. 
 
 Art. 647. The master is bound to deliver the goods at the port of 
 discharge to the legal holder of even only one copy of the bill of lading. 
 The party who is designated as consignee in the bill of lading, or to 
 whom the bill of lading, in case it is issued to order, has been trans- 
 ferred by endorsement, is to be considered as legally entitled to receive 
 the goods. 
 
 Art. 648. Should sevei-al legal holders of bills of lading apply for such
 
 732 ' MARITLME LEGISLATION. 
 
 goods, the master shall refuse delivery to all of them, deposit the goods 
 under legal custody or in some other safe manner, and infoiTii thereof 
 those holders of the bills of lading who did apply, stating the reasons 
 for such proceedings. 
 
 In case the o-oods are not deposited in legal custody, the master may 
 cause a public document to be executed stating his proceedings and his 
 reasons for the same, and the outlay thereby occasioned is to be re- 
 covered from the goods in the same manner as the freight (Art. 626). 
 
 Art. 619. The act of handing over bills of lading issued to order, to 
 the parties who would thereby be authorised to take delivery, after 
 having actually shipped the goods therein specified, is of the same legal 
 consequences respecting the acquisition of the rights depending on the 
 delivery of the goods as the delivery of the goods themselves. 
 
 Art. 650. In case several copies of a bill of lading to order have 
 been issued, the holder of one of them cannot enforce the legal rights 
 acquired by the foregoing Article through its transfer, to the prejudice 
 of a party who on production of another copy obtained delivery of the 
 goods from the master in conformity with Art. 647, before the holder 
 of the copy first referred to has claimed their delivery. 
 
 Ai-t. 651. Should several holders of bills of lading present themselves 
 before the master has parted with the goods, the latter shall, in so far 
 as their rights arising out of the bills of lading are irreconcilable one 
 with the other, give the preference to that holder whose bill of lading 
 was first received from the common endorser of all of them in such a 
 way as to authorise his taking possession of the goods. 
 
 When a copy has been sent to another place, the time of so dis- 
 patching it is to be considered the time of delivery. 
 
 Art. 652. The master is only obliged to deliver the goods on return 
 of a copy of the bill of lading upon which the delivery of the said goods 
 is duly certified. 
 
 Art. 653. The bill of lading is decisive for the legal position of the 
 shipowner and the consignee of the goods towards each other ; more 
 especially the delivery of the goods to the consignee shall take place in 
 accordance with the contents of the bill of lading. 
 
 Provisions of the contract of affreightment not embodied in the 
 bill of lading have no legal effect as against the consignee, unless 
 special reference has been made to them. When such reference has 
 l)een made respecting the freight to the contract of aflfreightment (for 
 in.stance, V)y the words ' freight as per charter-party ') the stipulations 
 as to the time for discharging, the days on demurrage and the demur- 
 rage are not con.sidered to be therein included. 
 
 As regards tlic legal position of tlic sliipownor and the charterer
 
 APPENDIX. 733 
 
 towards each otlier, the clauses of the contract of affreightment remain 
 conclusive. 
 
 Art. 654. The shipowner is responsible to the consignee for the 
 correctness of the description of the goods shipped, as contained in tlie 
 hill of lading. This liability is, however, limited to the payment of 
 such difference of value as may appear between the actual state of the 
 goods and their description in the bill of lading. 
 
 Art. G^^r>. The liability of the shipowner as stipulated in the fore- 
 going article likewise takes effect in case the goods have been delivered 
 to the master in packing, or in closed packages. 
 
 Should this be at the same time apparent from the bill of lading, 
 the shipowner is not responsible to the consignee for the correctness of 
 the description of the goods therein contained, provided he proves that 
 notwithstanding the proper attention of a careful master, such incor- 
 rectness of the description in the bill of lacing could not have been 
 found out. 
 
 The liability of the shipowner is not removed by the fact that the 
 identity of the goods delivered with those received may not be disputed, 
 or that the same may be proved by the shipowner. 
 
 Art. G^)6. Should any goods be delivered to the master packed or 
 in closed packages, he may add on the bill of lading the words 
 ' Contents unknown.' 
 
 When the bill of lading contains these or any other words to the 
 same effect, the shipowner is, in case of any difference between the 
 contents deli\'ered, and those stated in the bill of lading, only so far 
 answerable as it is proved against him, that he really received other 
 contents than those delivered. 
 
 Art. 657. Unless the goods described in the bill of lading by 
 number, measure or weight, have been really counted, measured or 
 weighed to the master on delivery, he may add on the bill of lading 
 the words ' Number, measure, weight unknown.' When the bill of 
 lading contains these or words to the same effect, the shipowner is not 
 answerable for the correctness of the statements in the bill of ladin» 
 respecting the number, measure, or weight of the goods delivered to 
 him. 
 
 Art. 658. In case the freight has been stipulated by numbei', 
 measure, or weight, and when such number, measure, or Avei^ht has 
 been stated in the bill of lading, such statement shall be taken as the 
 basis for the calculation of the freight, unless the bill of lading contains 
 a provision to the contrary. The words ' Number, measure, weio-ht 
 unknown,' or others to the same effect, are not considered to be such 
 provisions to the contrary.
 
 734 MArailME LEGISLATION. 
 
 Art. 6o9. Should the bill of lading contain the clauses, 'Free from 
 breakage,' or Tree from leakage,' or ' Free from damage,' or any other 
 addition to the same effect, the shipowner is not answerable for break- 
 age or leakage or damage, unless it can be proved to have been caused 
 by the fault of the master or another person for whom the shipowner 
 is responsible. 
 
 Art. 660. In case any goods have been delivered to the master 
 which are visibly damaged, in bad condition, or badly packed, he has 
 to state these defects in the bill of lading ; otherwise he is responsible 
 to the consignee, although the bill of lading may contain one of the 
 clauses mentioned in the foregoing Article. 
 
 Art. 661. After a bill of lading has been issued to order, the master 
 cannot comply with any instructions of the shipper concerning the 
 returning or delivery of such goods, unless all copies of such bill of 
 lading are returned to him. 
 
 The same rule applies to any demand made by any holder of a bill 
 of ladiiig for delivery of goods previous to the arrival of the master at 
 the port of destination. 
 
 Should he act in contravention of these provisions, he remains 
 liable to any legal holder of the bill of lading. 
 
 In case the bill of lading has not been issued to order, the master 
 shall return or deliver such goods even without the production of a 
 copy of the bill of lading, if the shipper and the consignee named in 
 such bill of lading have expressed their pi'oper consent to the returning 
 or the delivery of such goods. When, however, all the copies of the 
 bill of lading are not returned, the master can pi-eviously demand 
 security for any losses which might arise in consequence thereof. 
 
 Art. 662. The provisions of Art. 661 apply likewise when the 
 contract of affreightment is dissolved, before the port of discliarge 
 lias been reached, in consequence of any incident contemplated by 
 Articles 630 643. 
 
 Art. 663. The enactments of Articles 478, 479, and 502 remain 
 applicable as regards the liabilities of the master upon any contracts 
 of afl'reightment concluded and any bills of lading issued by him. 
 
 Art. 664. In case any sub-contracts of affreightment have been 
 concluded, the shipowner, and not the party letting the ship under 
 such sub-contracts, is answerable to the extent of ship and freight for 
 tlie fulfilment of the sub-contract of affreightment in so far as its exe- 
 cution belongs to the proper functions of the master and has been so 
 und(!rtaken by liirn, particularly in consequence of his receiving goods 
 and issuing bills of lading (Art. 4.'12). 
 
 W'lictlirr, ;ui(l liow far, the sliijKtwiicr, or tlie })ai'ty letting the ship
 
 APPENDIX. 735 
 
 under such sub-contract, can be niacle ans'Aerable by the sub-charterer 
 in all otlier respects, and whether in the latter case the party letting 
 the sliip under such sub-contract is, without limitation, answerable for 
 its fulfilment, or whether he only assumes the limited liability of the 
 owner to the extent of ship and freight, shall not be aflected by the 
 fore<coing enactments. 
 
 SIXTH PART. 
 
 Concerning all Matters relating to Freight for the Conveyance of 
 Passengers. 
 
 Art. G65. Should the passenger have been named in the passage 
 contract he is not entitled to transfer the right of passage to another 
 party. 
 
 Art. G66. The passenger is bound to comply with all instructions of 
 the master concerning the rules on board the vessel. 
 
 Art. 667. The passenger who, before or after the commencement of 
 the voyage, does not go on Ijoard in due time, shall pay the full passage- 
 money, even if the master commences or continues the voyage without 
 waiting for him. 
 
 Art. 668. When, previous to the commencement of the voyage, the 
 passenger gives notice of withdrawal from the passage contract ; or 
 Avhen he dies, or when he is compelled by illness or any other incident 
 happening to his person to remain behind, one-half only of the passage- 
 money shall be paid. 
 
 When, after the commencement of the voyage, notice of withdrawal 
 is given, or any of the incidents mentioned above occurs, the passage- 
 money shall be paid in full. 
 
 Art. 669. The passage contract becomes null and void when the 
 vessel is lost in consequence of a casualty (Art. 630, No. 1). 
 
 Art. 670. The passenger may Avithdraw from the passage contract, 
 when in consequence of a war breaking out, the vessel cannot any 
 longer be considered as free, and would be exposed to the risk of 
 capture, or if the ship's voyage should be delayed by a Government 
 order. The shipowner has likewise the right of withdrawal when, in 
 either of the above cases, he gives up the voyage, or when the vessel is 
 intended principally for the transport of goods, and the adventure can- 
 not be undertaken, because, without any fault on his part, such goods 
 cannot be forwarded. 
 
 Art. 671. In all cases in which pursuant to Articles 669 and 670 
 the passage contract is dissolved, neither party is liable to damages. 
 
 W^hen, however, such dissolution takes place after the commence-
 
 73G MARITIME LEGISLATION. 
 
 ment of the voyage, the passenger shall pay passage-money in propor- 
 tion of the performed part of the voyage to the whole. 
 
 In calculating' the amount due the provisions of Art. G33 are 
 
 decisive. 
 
 Art. 672. In case the vessel has to be repaired during the voyage, 
 the passenger shall pay the passage-money in full, although he may not 
 wait for the completion of the repairs. Should he wait for the comple- 
 tion of the same, the shipowner has to provide him with free lodging 
 until the voyage is resumed, and is likewise bound to continue to fulfil 
 his obligations as to subsistence in conformity with the passage con- 
 tract. 
 
 When, however, the shipowner offers to convey the passenger to the 
 place of destination by another vessel equally good, and without preju- 
 dice to any further rights, and the passenger refuses to accept such 
 offer, he has no further claim to be provided with lodging and board 
 until the resumption of the voyage. 
 
 Art. 673. Beyond the passage-money the passenger shall not pay 
 separately for the conveyance of luggage which, according to the con- 
 tract, he is entitled to bring on board, unless an agreement to the 
 contrary has been made. 
 
 Art. 674. The provisions of the Articles 562, 594, 618 apply to 
 any passenger's luggage brought on board. 
 
 When the same has been received by the master or a third party 
 especially appointed thereto, the provisions of the Articles 607, 608, 
 609, 610, 611 apply in case of loss or damage. 
 
 The Articles 564, 565, 566, and 690 apply likewise to all articles 
 brought on board by the passenger. 
 
 Art. 675. The shipowner has a lien for the passage-money on any 
 articles brought on board by the passenger. This lien exists, however, 
 only so long as such articles are retained or deposited. 
 
 Art. 676. Should the death of any passenger occur, the master 
 shall, according to the circumstances of the case, properly protect the 
 interests of the heirs as to the effects on board. 
 
 Art. 677. When a vessel is chartered to a tliird party for the con- 
 veyance of passengers, no matter whether wholly or partially, or in 
 audi a manner that a certain number of passengers shall be carried, 
 the enactments of the fifth part apply as regards tlie legal relations 
 between the shipowner and such third party as far as the nature of the 
 case admits. 
 
 Art. 678. When, in the following parts of tliis book, reference is 
 made to tlie freight, it shall be considered to comprise also the passage- 
 monies, unlfss tlic contrary is enacted.
 
 APPENDIX. 737 
 
 ArL 079. The laws of the various countries concerning matters of 
 emigration, even where they contain enactments of civil law, are not 
 affected by the enactments of this part. 
 
 SEVENTH PART. 
 
 Concerning Bottomry. 
 
 Art. GHO. Bottomry, in the sense of this code, is a loan transaction 
 concluded by the master as such, by virtue of the rights granted to him 
 in this code, under promise of a premium, and under hypothecation of 
 ship, freight, and cargo, or of one or more of these oljjects, in such a 
 manner that the creditor can enforce his claims only to the extent of 
 the hypothecated (bottomried) objects after the arrival of the vessel at 
 the place where the voyage for which the transaction has been con- 
 cluded shall terminate (bottomry voyage). 
 
 Art. 681. Bottomry transactions may only be concluded by the 
 master in tlie following cases, viz. — 
 
 (1) While the vessel is away from the port of registry, for the 
 
 purpose of completing the voyage, in conformity with Articles 
 497, 507-509, and 511. 
 
 (2) During the voyage in the sole interest of the parties concerned 
 
 in the cargo, for the purpose of preserving and forwarding 
 the same in conformity with Articles 504, 511, and 634. 
 
 In the case of No. 2 the master may take bottomry on the cargo 
 alone ; in all other cases he may take bottomry for the ship or the 
 freight alone, but for the cargo only together with ship and freight. 
 
 When a bottomry bond is given on the ship without naming tlie 
 freight, the latter is not considered as included. W^lien, however, a 
 bottomry bond on ship and cargo is given, the freight is considered to 
 be included in the same. 
 
 A bottomry bond on the freight is admissible as long as the latter 
 is exposed to any sea risk. 
 
 A bottomry bond can likewise be given for the freight of that part 
 of the voyage which has not yet been commenced. 
 
 Art. 682. The amount of the bottomry premium may without any 
 restriction be agreed upon by the contracting parties. 
 
 In default of an agreement to the contrary the premium includes 
 the interest likewise. 
 
 Art. 683. A bottomry bond shall be executed by the master con- 
 cei-ning the bottomry transaction. Should this not have been done the 
 creditor has the &ime rights as he would have if tlic master had entered
 
 738 MARITIME LEGISLATION. 
 
 into a simple credit transaction for the purpose of supplying any of his 
 
 requirements. 
 
 Art. 684. The bottomry lender can demand that the bottomry bond 
 
 sliall contain — 
 
 (1) The name of the bottomry creditor. 
 
 (2) The amount of the principal of the bottomry debt. 
 
 (3) The amount of the bottomry premium, or the total amount of 
 
 the sum payable to the creditor. 
 
 (4) The description of the objects hypothecated by the bond. 
 (.5) The description of the vessel and the master. 
 
 (6) The bottomry voyage. 
 
 (7) The time at which the bottomry debt shall be paid. 
 
 (8) The place where the payment shall be made. 
 
 (9) The designation of the document as bottomry bond embodied 
 
 in the document itself, or the declaration that the debt has 
 been contracted as a bottomry debt, or any other declaration 
 sufficiently showing the transaction to be of the nature of 
 bottomry. 
 
 (10) The circumstances which have necessitated the entering into 
 
 the bottomry transaction. 
 
 (11) The date and place where the document has been executed. 
 
 (12) The signature of the master. 
 
 The signature of the master shall be certified if required. 
 
 Aft. 685. Unless the contrary has been agreed upon, the bottomry 
 bond shall, at the demand of the bottomry lender, be executed to the 
 order of the creditor, or simply to order. In the latter case the word 
 ' order ' signifies the order of the bottomry lender. 
 
 Art. 686. When the necessity of concluding the transaction has 
 been established previous to the execution of the bottomry bond, by a 
 document from the consul of the country, or from the consul authorised 
 to act for the same, or in default of such consul from any court of law 
 or any other competent authority, of the place of execution, or, in case 
 neither of these exist, from the officers of the vessel, it shall be con- 
 sidered that the master has been duly authorised to conclude the tran- 
 saction to the extent in question. 
 
 Evidence to the contrary, however, shall be admissible. 
 
 Art. 687. Tlie bottomry lender can demand the execution of several 
 copies of the bottomi-y bond. 
 
 Should several copies have been issued, the number of such copies 
 has to be stated in each of them. 
 
 The bottomry bond is transferabl(> by ondorsemeiit, if it lias boon 
 iii;id(r out to order.
 
 APPENDIX. 739 
 
 The plea that the master liacl not been authorised to enter into 
 the transaction at all, or to the extent in question, is admissible also 
 against the holder by endorsement. 
 
 Aft. G88. Unless an agreement to the contrary has been made in 
 the bottomry bond itself, the bottomry debt is {)ayable at the port of 
 destinaticni of the b(jttomry voyage and on tlic eiglitlj day after the 
 arrival of the vessel in that port. 
 
 From the day when it falls due mercantile interest becomes payable 
 upon the whole bottomry debt including the premium. 
 
 The foregoing provision does not apply when the premium has been 
 stipulated by time ; the time premium runs, however, until the pay- 
 ment of the principal of the bottomry debt has been efi'ected. 
 
 Art. 689. The payment of the bottomry debt when due cannot 
 be refused to the legal holder of even only one copy of the bottomry 
 bond. 
 
 Such payment can only be demanded upon return of such copy, on 
 which the customary receipt for the payment is to be attached. 
 
 Art. 690. In case several legal holders of any bottomry bond apply 
 for payment, such payment shall be refused ; the amount shall, in case 
 it is required to obtain possession of the bottomried objects, be deposited 
 with a court of law, or in any other safe manner ; and those holders of 
 any bottomry bond who have applied shall be informed of the course 
 taken and of the reasons for the same. 
 
 Should such amount not have been deposited with a court of law, 
 the depositor may cause a public document to be issued respecting his 
 proceedings, and his reasons for the same, and he may deduct the 
 expenses thereby occasioned from the bottomry debt. 
 
 Art. 691. The bottomry creditor is not liable to contribute to 
 General or Particular Average. 
 
 In case, however, the bottomried objects become, by reason of 
 General or Particular Average, insufficient for the payment of the 
 bottomry creditor, he shall bear the loss thereby caused. 
 
 Art. 692. All the bottomried oVyects are jointly and severally liable 
 to the bottomry creditor. 
 
 After the arrival of the vessel at the port of destination of the 
 bottomry voyage, the creditor can apply for an arrest of all bottomried 
 objects even before his claim becomes due. 
 
 Art. 693. The master shall care for the safe keeping and preserva- 
 tion of the bottomried objects ; he shall not without urgent reasons 
 commit any act whereby the risk of the bottomry creditor is increased 
 or altered from what he might anticipate when entering into the con- 
 tract. 
 
 3 B 2
 
 740 MARITIME LEGISLATION. 
 
 If lie acts conti-ary to these provisions he is answerable to the 
 bottomry creditor for the damage thereby arising (Art. 479). 
 
 Art. 694. When the master has arbitrarily changed the bottomry 
 voyage, or when he has arbitrarily deviated from the proper course, or 
 when after its termination he has again exposed the bottomried object 
 to sea risks without having been compelled to do so in the interests of 
 the creditor, the master is personally answerable to the creditor for the 
 bottomry debt, so far as the latter does not receive his payment out of 
 the bottomried objects, unless he proves that the non-payment has not 
 been caused through the change of the voyage or through the deviation 
 or through the new sea risk. 
 
 Art. 695. The master shall not deliver the bottomried cargo, either 
 entirely or partially, before the creditor has been paid or properly secured, 
 otherwise the master is personally answerable to the creditor for the 
 bottomry debt so far as he could, at the time of their delivery, have 
 been paid by the goods so given up. 
 
 Until the contrary has been proved it shall be considered that the 
 creditor could have been paid in full. 
 
 Art. 696. When in the cases of Articles 693, 694, 695 the master 
 has acted by directions from the shipowner, the provisions of the second 
 and third sections of Art. 479 shall apply. 
 
 Art. 697. If the amount of bottomry is not paid when due, tlie 
 creditor may apply to the proper court to order the sale of the ship 
 and cargo on which bottomry has been taken, as also to hand over the 
 bottomried freight. 
 
 The action shall be brought, as far as the ship and freight are con- 
 cerned, against the master or owner ; as to the cargo, if before its deli- 
 very against the master, after its delivery against the consignee, so long 
 as it is in his own possession, or in the custody of any person holding it 
 for his account. 
 
 The creditor can make no use of his rights to the prejudice of a third 
 party who has honCi fide become possessor of the bottomried cargo. 
 
 Art. 698. The consignee, to whom it is known on taking delivery of 
 any Ijottomried goods, that they are liable for a bottom i-y debt, becomes 
 personally answerable to the creditor for the debt to the extent of the 
 value which the goods had at the time of their delivery, so far as the 
 creditor could have been paid out of the goods if the delivery had not 
 taken place. 
 
 Art. 699. When the adventure is given up before the commencement 
 of the bottomry voyage, the creditor may doinand immediate payment 
 of the l)ottomry d<;l)t at tiie place at which sucli bottomiy has Ikmmi 
 taken : ln-iiiiist, however, 1)C satisfied with a pi-ojiortioniitc reduction of
 
 APPENDIX. 741 
 
 the premium ; in lixing sucli reduction tlie proportion of the danger sus- 
 tained to tliat undertaken shall be principally considered. 
 
 Wlien the bottonny voyage does not terminate in the port of de- 
 stination, but in another port, the bottomry debt must be paid in the 
 latter port without deduction from the premium, after the expiration of 
 the stipulated time for payment or, in default of any agreement, after 
 the expiration of eight days (Art. 688). Such time of payment to be 
 calculated from the definite abandonment of the voyage. 
 
 The Articles 689-G98 apply likewise to the foregoing cases where the 
 contrary is not enacted by this Article. 
 
 Art. 700. The application of the provisions of this part is not affected 
 by the master being part owner or sole owner of the vessel or of the 
 cargo, or of both of them, or by his having entered into the bottomry 
 transaction upon special instructions from the parties concerned. 
 
 Art. 701. It is reserved to the legislation of the various countries to 
 introduce regulations respecting irregular bottomry transactions, i.e. 
 such as may not have been entered into by the master as such in tlie 
 cases contemplated by Art. 681. 
 
 EIGHTH PART. 
 
 Concerning Average. 
 First Division. — General Average and Particular Average. 
 
 Art 702. All damage intentionally done to ship or cargo, or both, 
 by the master or by his orders, for the purpose of saving both from a 
 common danger, together with any further damage occasioned by such 
 measures and likewise expenses incurred for the same purpose, are 
 General Average. 
 
 General Average is borne by ship, freight and cargo in common. 
 
 Art. 703. All losses and expenses not belonging to General Average 
 but caused by an accident are Particular Average, as far as they do not 
 come under Art. 622. 
 
 Particular Average is borne by the owners of the ship and cargo 
 respectively, each for himself alone. 
 
 Art. 704. The application of the rules for General Average is not 
 debarred by the fact that the danger has been occasioned by the fault of 
 a third party, or even of one of the parties interested in the adventure. 
 
 The party interested who is in fault can, however, not only make no 
 demand for compensation on account of any damage which is tliere))y 
 sustained, but is likewise answerable to each contriljutur for the loss
 
 742 MARITIME LEGISLATION. 
 
 Avhich he suffered through such damage being apportioned as General 
 
 Average. 
 
 Should the danger have arisen through the fault of one of the crew, 
 the owner is likewise answerable for the consequences subject to the 
 conditions of Articles 451 and 452. 
 
 Art. 705. Average contribution takes place only when the ship as 
 well as the cargo, each either wholly or in part, have been actually 
 sived. 
 
 Art. 706. The obligation to contribute on the part of an article wliich 
 has been saved is only then completely annulled when the article, 
 owing to its having subsequently suffered Particular Average, is entirely 
 destroyed. 
 
 Art. 707. The right to compensation for damage belonging to General 
 Average is only so far set aside by a Particular Average subsequently 
 affecting the damaged article (whether this be again damaged or totally 
 destroyed) as it is proved that the latter accident not only was entirely 
 independent of the former but would have likewise carried with it the 
 former damage if this had not already taken place. 
 
 If, however, before the occurrence of the latter accident steps should 
 already have been taken to reinstate the damaged article, then the claim 
 for reimbursement holds good as far as such steps are concerned. 
 
 Art. 708. The following cases in particular are General Average, 
 always supposing that the requirements of Articles 702, 704 and 705 are 
 complied with so far as there is nothing to the contrary specially directed 
 l)y tliis Article : — 
 
 (1) When goods, portions of the ship, or articles belonging tliercto, 
 
 are thrown overboard, masts are cut away, ropes or sails 
 cut adrift, anchors, hawsers, or chain-cables slipped or cut 
 away. 
 These damages, as well as any further damages caused to ship 
 or cargo by such acts, belong to General Average. 
 
 (2) When, in order to lighten the vessel, the cargo or part of it has 
 
 been discharged into lighters. 
 
 To General Average belong as well the hire of the lighters as 
 also any damage done to sliip or cargo by discharging into the 
 lighters or by re-shipping into tlie vessel, and any damage 
 wliich may have been done to the cargo wliilein the lighters. 
 
 If the lightening of the vessel must have taken place in the 
 ordinary course of the voyage, there is no General Average. 
 (;}) When the ship has been purposely run ashore, but only if pre- 
 vention of sinking or of capture was thereby intended. 
 
 Tlie damages caused by the stranding, as well as by the getting
 
 APPENDIX. 743 
 
 off, us ulso all the expenses of getting off, belong to General 
 Average. 
 An average conti'ihution is not made if the ship which has l>eeii 
 stranded to avoid sinking is not got off, or after being got off 
 is found iiu-apable of repair (Art. 444). 
 if the ship has been stranded, without the stianding being 
 purposely done for preservation of ship and cargo, then tlie 
 damages cau.sed l)y such stranding are not, but the expenses 
 occasioned by the getting off, and the damages purposely in- 
 flicted on ship or cargo with this object are. General 
 Average. 
 
 (1) If the vessel lias put into a port of refuge in order to avoid a 
 common danger threatening the ship and cargo in case the 
 voyage were prosecuted, more particularly if the putting into 
 port is for the necessary repair of damage done to the ship 
 during the voyage. 
 To General Average in this case belong the expenses of entering 
 and leaving, the expenses attaching to the ship itself owing 
 to the stay, the wages and provisions of the crew during the 
 stay, also tlie expense of lodging the crew on shore if and so 
 long as they could not remain on board ; further, if the cargo 
 must be discharged as a consequence of the cause which led 
 to the ship's putting into the port of refuge, the expense of 
 discharging and re-shipping, and the expense of warehousing 
 the cargo on shore up to the time when it might have been 
 put on board again. 
 The several charges for detention are only admitted for the 
 time that the cause of putting into the port of refuge remains 
 in force. If the cause is to be found in a necessary repair 
 of the ship, the charges for detention are only admitted up 
 to that time at which the repair might have been completed. 
 The expense of repair to the ship belongs to General Average 
 so far only as the damage which is to be repaired is itself 
 General Average. 
 
 {'^) When the ship is defended against enemies or pirates. 
 
 All damage done to ship and cargo in such defence, the ammuni- 
 tion expended, and in case any of the crew is Avounded or 
 killed in such defence, then the expenses of his cure or burial, 
 as also the compensations to be paid (Articles 523, 524, 549, 
 551), are General Average. 
 
 ((i) When the vessel has been detained by enemies or pirates, and is 
 redeemed by payment.
 
 744 MARITIME LEGISLATION. 
 
 What is f iven for ransom together with the cost of maintenance 
 and release of the hostages is General Average. 
 (7) Losses and expenses incurred in obtaining the monies necessary 
 for payment of General Average during the voyage, or ex- 
 penses incurred in apportioning the amounts among the 
 parties interested, belong to General Average. 
 Among tliese, more particularly are to be reckoned the loss on 
 goods sold during the voyage, the premium on a bottomry 
 loan taken up for the advance of the necessary funds, and, 
 when this is not the case, the premium of insurance or the 
 monies expended, the expenses of determining the damage 
 and drawing up the adjustment. 
 Art. 709. Not as General Average, but as Particular Average, are to 
 be considered — 
 
 (1) Losses and expenses incurred in procuring monies required in 
 
 consequence of a Particular Average, even if in the course 
 of the voyage. 
 
 (2) Expenses of reclaiming, even if the ship and cargo are both 
 
 reclaimed together, and both successfully. 
 
 (3) Damage done to the ship, its appurtenances, or the cargo, by 
 
 carrying a press of sail, even when the press of sail was 
 carried to avoid stranding or capture. 
 Art. 710. In cases of General Average, damages and losses occurring 
 to the following articles are not allowed for in making up the statement — 
 
 (1) Goods not laden under deck ; this regulation does not, however, 
 
 apply to the coasting ti-ade, when deck cargoes are allowed 
 by the laws of the various countries to be carried in such 
 coa.sting trade (Art. 567). 
 
 (2) Goods for which there is no bill of lading, nor any entry nor the 
 
 manifest or cargo-book. 
 
 (.3) Valuables, specie, and securities, respecting which proper notice 
 has not been given to the master (Art. 608). 
 
 Art. 7n. Damage done to the vessel or its appurtenances, belong- 
 ing to General Average, must be surveyed and estimated by experts at 
 tlie port where it is made good, and before the repairs are commenced 
 if it is done in the course of the voyage ; otherwise at the port where 
 tlie voyage terminates. The estimate must include the probable cost 
 of all requisite repairs. If the repairs are done in the course of tlie 
 voyage, the estimate determines the amount to be allowed for th 
 daiiiago, except when the cost of completing such repairs is less than the 
 estimated amount. If it was not possible to make an ostinialc, then 
 <li'" amount actually laid out on the iircrssaiv repairs is conclusive.
 
 APPENDIX. 745 
 
 So far as the repairs are not completed durinj,' the voyage the esti- 
 mate alone is conclusive in tlie settlement of tlie damage. 
 
 In other cases, a deduction is made for the difference between old 
 and new of one-third of the wliole amount ; in tlie case of chain-cables, 
 howevei", only one-sixth, and on the anchors themselves no deduction 
 at all is allowed. 
 
 From tlie total amount are fuithcr to be deducted the proceeds or 
 value of the whole articles, if they sliall Ije in existence, whicli have 
 been or are to be rei)laced with new. 
 
 If such a deduction, and also the deduction for the diilerence 
 Ijetween old and nv.w, have to be mad(!, tlie latter is first to be de 
 ducted, and afterwards the otlier deduction is to be made from the 
 remainder. 
 
 Art. 712. The full amount of the repairs, when settled according to 
 the provisions of the preceding Article, is the amount to Ije allowed in 
 General Average if, at the time of sustaining the damage, the vessel 
 had not been afloat for a full year. 
 
 The same rule applies in allowing for separate parts of the sliip, 
 and particularly for the metal sheathing, and for separate parts of the 
 appurtenances, when such parts have not been in use for a full year. 
 
 Art. 713. The amount to be allowed for goods which have been 
 sacrificed is determined by the market price of goods of the same kind 
 and quality at the port of destination, at the time when the discharge 
 of tiie ship was commenced. 
 
 If there is no market price, or in case of uncertainty as to such 
 price or its applicability, more particularly with reference to the quality 
 of the goods, the value must then be settled by competent persons. 
 
 From the value is to be deducted whatever saving in freight, duties 
 and charges has resulted from the loss of the goods. 
 
 As goods sacrificed are to be considered, also, such as have been 
 sold to satisfy General Average (Art. 708, No. 7). 
 
 Art. 71-1. The amount to be allowed for goods which have suffered 
 damage belonging to General Average is determined by the difference 
 between the value of the goods in their damaged state at tlie commence- 
 ment of the discharge of the vessel, wliich is to be settled by experts 
 and the market price, as defined in the preceding Article, after deduction 
 of dues and charges, so far as tliese may have been saved in consequence 
 of the damage. 
 
 Ai't. 715. Infixing the amount wliich is to be allowed (Articles 713, 
 714), a deduction is to be made on account of decrease of value and 
 losses which may have occurred before, at, or after the casualty, not 
 belonjjing to General Average.
 
 746 MARITIME LEGISLATION. 
 
 Art. 716. If the voyage does not terminate with regard to ship and 
 cargo at the port of destination, but at another port, such latter port 
 takes the place of the port of destination for the determining of the 
 General Average allowance ; whereas, if tlie voyage is terminated l)y 
 the loss of the ship, the place to which the cargo is brought in safety 
 becomes the port of destination in like manner. 
 
 Art. 717. The allowance for freight not earned is to be determined 
 by the amount which would have been due on the sacrificed goods, if 
 they had been carried on by the ship to the port of destination ; or, if 
 the ship does not arrive at the port of destination, if they had reached 
 the port where the voyage terminates. 
 
 Art. 718. The total amount of the loss which forms the General 
 Average is apportioned among ship, cargo, and freight, in proportion to 
 their respective values. 
 
 Ai-t. 719. The ship with its appurtenances contributes — 
 
 (1) On its value in the condition in which it was at the end of the 
 
 voyage, when the discharge was commenced. 
 
 (2) On the amount allowable as General Average on the ship and 
 
 its appurtenances. 
 
 From the value under No. 1 is to be deducted tlie existing value of 
 those repairs and supplies which have been made since the occurrence 
 of the casualty. 
 
 Art. 720. The cargo contributes — 
 
 (1) On the goods still existing at the end of the voyage when the 
 
 discharge was commenced, or if the voyage is terminated by 
 the loss of the ship (Art. 71G), on the goods that have been 
 brought into safety, so far as at the time of tlie casualty 
 these goods, in both cases, were on board the vessel or a 
 lighter (Art. 708, Xo. 2). 
 
 (2) On the goods sacrificed (Art. 713). 
 
 Art. 721. In determining the contribution, the rate is to be taken- 
 
 (1) For goods wliich are undamaged, or the market value, or the 
 
 value as fixed by experts (Art. 71. '5), of the goods at the end 
 of the voyage, when and where the discharge was commenced, 
 or, if the voyage is terminated by the loss of the ship (Art. 
 716), at the time and place of the salvage, after deducting 
 freight, duties, and other expenses. 
 
 (2) For goods which liave been spoilt during the voyage, or have 
 
 suflered damage not belonging to General Average, on the 
 value, as fixed by experts (Art. 7M) of the goods in their 
 damaged state at the t'unv. and ])lace stated in clause 1 of 
 this section, after di'duetion of freiglit, duties, and other 
 expenses. 
 
 /siB
 
 APPENDIX. 747 
 
 (3) For goods which have been sacriticed, on the amount at wliich 
 
 they are estimated under Art. 713 for General Average. 
 
 (4) For goods which have suffered damage belonging to General 
 
 Average, tlie value, as estimated under clause 2 of this sec- 
 tion, of the goods in their damaged state, adding tliereto the 
 difference of value wliich, according to Art. 714, is allowed 
 in General Average as compensation for the damage. 
 Art. 722. Goods recovered after being jettisoned are not to contri- 
 bute to a General Average occurring at the same time or subsequently, 
 unless the owner of them makes a claim for contribution. 
 Art. 723, The freight contributes on two thirds — 
 
 (1) Of the gross amount earned. 
 
 (2) Of the amount estimated as General Average accordii\g to 
 
 Art. 717. 
 
 The laws of the respective countries retain the powers of reducing 
 the above stipulated proportion of two-thirds to one-half. 
 
 Passage-money contributes on the amount which would have been 
 lost if the ship had perished, after deducting the expenses which would 
 in that case have been saved. 
 
 Art. 724. If a contributory oliject is liable for a claim arising out 
 of a subsequent casualty, it must only contribute on its value after 
 deduction of this claim. 
 
 Art. 725. The following do not contribute to General Average — 
 
 (1) Ammunition and provisions of the ship. 
 
 (2) Wages and effects of the crew. 
 
 (3) Baggage of passengers. 
 
 If objects of this kind have been sacrificed or have sustained 
 damage which comes under General Average, compensation is made 
 for them as provided by Articles 713-717 ; compensation is, however, 
 not made for private effects consisting of valuables, sj^ecie, or securities, 
 unless they have been duly notified to the master (Art. 608). Objects 
 of this kind, for which compensation is made, contribute on the value, 
 or difference of value at which they are replaced on the adjustment. 
 
 The objects enumerated in Art. 710 contribute as far as they have 
 been saved. 
 
 Money advanced on bottomry is not liable to contribute. 
 
 Art. 726. If after the casualty, and before the commencement of 
 the dischai'ge at the end of the voyage, a contributory ol)ject is totally 
 lost (Art. 706), or partially lost or diminished in value, more pai-ticu- 
 larly in the case stated in Art. 724, a corresponding increase takes 
 place in the amounts to be cojitributed by the remaining objects. 
 
 If the loss^ or diminution of value occurs after the commencement
 
 748 :\IAiaTIME LEGISLATION. 
 
 of the discharge, the amount for which such object is liable to con- 
 tribute as far as the object is inadequate to the satisfaction of a claim, 
 falls as a loss on the claimant. 
 
 Art. 727. Claimants on account of General Average have the same 
 rio'hts as ships' creditors with respect to the amounts due from the 
 ship and freight. 
 
 AVith respect to goods which have to contribute, they have a lien 
 on the separate goods for the amounts for which each is liable. Such 
 lien, however, cannot, after delivery of the goods, be enforced to the 
 prejudice of third parties, who have bond fide come into possession of 
 them. 
 
 Art. 728. An average loss in itself does not constitute a personal 
 liability for payment of the average amount. 
 
 The receiver of goods from which a contribution has to be received, 
 if such fact was kno"wn to him when he received the goods, is, however, 
 personally liable for such amount up to the value of the goods at the 
 time of their delivery, in so far as the amount could have been 
 recovered out of the goods themselves if they had not been delivered. 
 
 Art. 729. The loss is to be determined and apportioned at the port 
 of destmation ; or, if that is not reached, at the port where the voyage 
 terminates. 
 
 Art. 730. The master is bound to cause the average statement to 
 be made up without any delay. If he acts contrary to this obligation, 
 he renders himself liable to every party interested. 
 
 Should the preparation of the average statement be unnecessarily 
 delayed, every party interested may address a request for such pre- 
 paration and urge its completion. 
 
 Art. 731. Under the jurisdiction of this code, the average statement 
 is to be made up by the persons regularly appointed for the purpose, 
 or in their absence by parties especially authorised by the Court 
 (average staters). (Compare Article 57, clauses 1-7 of the Prussian 
 Introductory Law.') 
 
 ' Art. 57. Prussian IntrodiictorTj Law. The following regulations are hereby 
 laid down for the stating and settling of averages : — 
 
 (1) As soon as the average statement is made up, the average stater shall lay 
 
 the same before the Court of Commerce. It is the duty of this Court to 
 examine the statement, and if mistakes or omissions are found, to have 
 the same corrected by the average stater. 
 
 (2) After the statement has been examined, and, if necessary, corrected, the 
 
 jmrties who have to contribute, if they have announced themselves to 
 the Court, or arc known in other ways, more particularly by the ship's 
 l)apcrs or cargo accounts, are to be invited to apjicar before a dei)uty of 
 tiie Court un a lixed day if tlicy reside in tlie district of the Court, or
 
 APPENDIX. 740 
 
 Every party interested is bound to fuiiiish the average stater with 
 all documents necessary for making up the statement as far as tlicy 
 maybe under his control, viz. :~ charter parties, bills of lading, and 
 invoices. 
 
 To the laws of the respective countries is reserved the right of 
 making furtlier regulations respecting the drawing up of the average 
 statement and the settling of the same. 
 
 Art. 732. Security shall be given to the parties interested in the 
 cargo for the amounts due from the ship, before the latter can be 
 allowed to leave the port in which, according to Art. 729, the apportion- 
 ment and arrangement of the loss is to take place. 
 
 Art. 733. The master is not allowed to deliver goods, from which a 
 contribution to average may be due, until the amount of such contribu- 
 tion shall have been paid, or security given for the same (Art. 616) ; in 
 default of which, in addition to the liability of the goods, he becomes 
 personally liable for the amounts. 
 
 If the master shall have acted in accordance with instructions 
 from his owner, then the directions of the second and third parts of 
 Art. 479 are to be acted upon. 
 
 have appointed representatives there ; otherwise, in the person of an 
 oflicial agent, who will be appointed to act for them, in order to make 
 their several objections to the statement. 
 To the summons is to be attached the announcement, that any party not 
 appearing will be considered to have no objection to make to the state- 
 ment. 
 (8) If at the stated time no objections are made to the statement, then the 
 Court shall confirm the same. 
 
 (4) If an interested party make objections, he must prove them in the sitting 
 
 appointed, or must reserve the right of putting in a written statement 
 of his grievance. In the latter case the statement must be laid before 
 the Court within fourteen days : if this should not be done, it will be 
 considered that the official record of the sitting is to serve as such 
 statement. 
 The ordinary legal steps will be taken by the Court on the statement of 
 grievance, or should such not have been reserved, or not have been put 
 in during the interval of fourteen days to be allowed as above, then on 
 the copy of the oflicial record of the sitting which is to serve as state- 
 ment. 
 
 (5) When the objections which may have been brought forward have been 
 
 settled by a legal decision, or otherwise, then the Court shall proceed to 
 confirm the average statement, the same having first been duly amended 
 in conformity with the settlement of the objections. 
 
 (6) When objections are raised which only affect a portion of the average state- 
 
 ment, the Court shall at once confirm the statement so far as the same is 
 not affected by the objections. 
 
 (7) When the average statement has been so confirmed, immediate execution 
 
 may be granted upon it.
 
 7r,0 MARITIME LEGISLATION. 
 
 The lien wliich parties entitled to compensation have on the con- 
 tributory goods is exercised for them by the shipowner. 
 
 Art. 734. If the master shall have given a bottomry bond on the 
 ca.T"o or have disposed of a part of the same by sale or otherwise, in 
 order to be able to continue the voyage, although for an expense which 
 does not belong to General Average, then the loss which the party 
 interested in the cargo may sustain, because his claim cannot be satis- 
 fied, or can only partly be satisfied by ship and freight (Articles 509, 
 510, 613), shall be borne by the whole of the parties interested in 
 the cargo, according to the regulations laid down for cases of General 
 Average. 
 
 In settling the loss, the compensation fixed in Art. 713 is decisive 
 in all cases, and particularly in such as come under the second part 
 of Art. 613. Goods which have been sold also contribute to General 
 Average, should such occur (Art. 720), with the value at which such 
 compensation may be determined. 
 
 Art. 735. With respect to other losses and charges to be divided 
 according to the principles of General Average, the necessary instruc- 
 tions are given in Art. 637. 
 
 The amounts and compensations to be paid under the stii^ulations of 
 Articles 637 and 734 are in all respects placed on the same footing as 
 payments and compensations in cases of General Average. 
 
 Second Division. — Damage by Collision. 
 
 Art. 736. When two ships come into collision, and either on one or both 
 sides, in consequence of such collision, ship or cargo alone, or ship and 
 cargo, should be damaged or entirely lost, then in case any one of the 
 crew of either ship should have occasioned the accident by any fault of 
 his own, the owner of that ship is answerable according to Articles 451, 
 452 for the repairs of the damage which may have been done to the 
 other ship or her cargo by the collision. 
 
 The owners of the cargo in the two ships are not liable to contribute 
 to the repairs of the damage. 
 
 The personal liability of the crew for tlie consequences of their 
 faults is not altered by this section. 
 
 Art. 737. If no fault is attributable to any of the crew of either 
 vessel, or if the collision is occasioned by faults on both sides, then no 
 claim can be established for the damage done to either or both sliips. 
 
 Art. 738. The two preceding sections are applicable whether both 
 vessels, or either of them, are under sail or drifting with the current, 
 or :irf at ;iiiclior, or fastoiod to tho shore.
 
 APPENDIX. 7ol 
 
 Art. 739. Wlien a ship wliioli has been damaged Ijy collision sinks 
 before it can reach a port, it is taken for granted that the sinking of tlie 
 ship was a consequence of the collision. 
 
 Art. 740. When the ship is in charge of a pilot (where pilotage is 
 compulsory) and the crew have performed the duties required of them, 
 the owner of the ship is then not responsible for the damage occasioned 
 by a collision for which the pilot is to blame. 
 
 Art. 741. The provisions of this Article are also applicable when 
 more than two vessels come into collision. 
 
 When in such a case the collision shall have been occasioned by the 
 fault of any of the crew of one of the vessels, then the owner of such 
 vessel is also answerable for damage which may be occasioned in con- 
 sequence of the second vessel tlirough the collision being driven into 
 collision with a third. 
 
 NINTH PART. 
 
 Concerning Salvage and Assistance in Cases of Distress. 
 
 Art. 742. W^hen in case of distress a ship or its cargo, being no 
 longer under the control of the crew, or having been abandoned by the 
 same, is taken charge of either wholly or in part by third parties and 
 brought into safety, then such parties have a claim for salvage. 
 
 When in any other case than the above, a ship or its cargo is 
 rescued from a state of distress by the help of third parties, then such 
 parties have only a claim for assistance 
 
 The crew of the vessel which is lost or in danger can have no claim 
 for salvage or assistance. 
 
 Art. 743. When during the danger an agreement has been made as 
 to the amount of the salvage or payment for assistance, such agree- 
 ment may nevertheless be disputed on the plea that the amount agreed 
 upon was excessive, and the reduction of the same to an amount more 
 in accordance with the circumstances of the case may be demanded. 
 
 Art. 744. In the absence of any agreement, the amount of the 
 salvage or assistance shall be fixed by the judge in money, all the 
 circumstances of the case being taken into reasonable consideration. 
 
 Art. 745. The amount awarded for the salvage or assistance also 
 includes compensation for any outlay which may have been made for 
 the purposes of the salvage or assistance. 
 
 It does not include, however, the costs and fees of the legal authori- 
 ties, the duties and charges to which the salved articles may be liable, 
 or the expenses of storing, preserving, valuing, and disposing of the same.
 
 7o2 MARITIME LEGTSLATIOX. 
 
 Art. 746. The following circumstances are more particularly to be 
 taken into consideration in settling the amount to be awarded for 
 salvage or assistance : — 
 
 The zeal shown. 
 
 The time expended. 
 
 The services rendered. 
 
 The outlay incurred. 
 
 The number of persons who assisted. 
 
 The danger to which they and their vessels were exposed, as also 
 
 The danger which threatened the salved or rescued articles, and 
 
 The value of the same remaining after deduction of the expenses 
 (Art. 745, clause 2). 
 
 Art. 747. The award for salvage or assistance shall not be fixed at 
 a proportion of the value of the salved or rescued articles, unless all 
 parties shall mutually agree thereto. 
 
 Art. 748. The amount of the salvage shall not exceed one-third of 
 the value of the articles salved (Art. 746). 
 
 Only in exceptional cases may the amount be increased up to the 
 lialf of the value, as when the salvage was accompanied with unusual 
 exertions and risks, and when at the same time such value is only 
 small. 
 
 Art. 749. The amount awarded for assistance shall always be less 
 than the amount of salvage would have been in the same circumstances. 
 In settlement of the amount to be awarded for assistance, the value of 
 the articles rescued is only of secondary importance. 
 
 Art. 750. When several persons have taken part in the salvage or 
 rendering of assistance, the amount awarded shall be divided among 
 them in proportion to the services that each may have rendered either 
 personally or with his property, and in case of dispute, according to 
 the number who have to participate. 
 
 All those who devote themselves to the saving of human life in a 
 casualty are entitled to participate equally. 
 
 Art. 751. When a ship or its cargo is either wholly or in part salved 
 or preserved by another ship, then the amount awarded for salvage or 
 assistance is divided between the owner, the master, and the rest of the 
 crew of the other ship, unless it shall have been otherwise specially 
 agreed between them, in such proportion, that the owner shall take 
 one-half, the master one-quarter, and the rest of the crew the other 
 one-quarter. Among the latter the amount shall be divided in propor 
 lion to the pay to which each is entitled, or to which each would be 
 entitled according to rank. 
 
 Ar/. 75l'. No j)crson has iui\- il;iiin for salvage or assistance —
 
 APPENDIX. 753 
 
 (1) Who has forced the acceptance of his services, or more particu- 
 
 hirly has gone on board tlie ship without permission of the 
 master, when the latter was present. 
 
 (2) Who has not immediately given notice to the mastex', the pro- 
 
 prietor, or the proper authority respecting such salvage. 
 Art. 753. With respect to the expenses for salvage and assistance, 
 which shall be understood to include the amount awarded for such 
 salvage and assistance, the creditor has a lien on the salved or pre- 
 served articles, and with respect to the salved may detain them until 
 security for the amount has been given. 
 
 In enforcing the lien, the stipulations of the second and third 
 clauses of Art. 697 shall be applied. 
 
 Art. 754. The master may not deliver the goods, either wholly or in 
 part, until the creditor has been paid or has received security, other- 
 wise he makes himself personally liable to the creditor, so far as the 
 latter's claim could have been satisfied out of the delivered goods at 
 the time of their delivery. 
 
 If the master has acted in accordance with instructions from his 
 owner, then tlie directions of the second and third clauses of Art. 479 
 come into operation. 
 
 Art. 755. Salvage and rendering of assistance do not of themselves 
 impose a personal responsibility for payment of salvage and assistance 
 expenses. 
 
 But the receiver of goods, when it is known to him at the time he 
 received them that the same were liable for salvage or assistance ex- 
 penses, becomes personally liable for such expenses, so far as they could 
 have been satisfied out of the goods themselves, had they not been 
 delivered. 
 
 If other articles have been salved or preserved together with the 
 goods which have been so delivered, then the personal liability of the 
 receiver only extends to the amount which falls upon the goods 
 delivered, when the expenses are divided among the whole of the 
 articles. 
 
 Art. 756. The laws of the respective countries retain the right to 
 amend the provisions of this ninth part. 
 
 They can enact that other than legal tribunals shall, with the re- 
 servation of an appeal to law (Art. 744), be called upon to decide 
 questions as to liability to the payment of salvage or assistance claims, 
 or as to the amounts to be awarded in such cases. 
 
 The regulations of the different countries as to the recapture of a 
 ship taken by the enemy do not come under the provisions of this 
 part. 
 
 3c
 
 754 MARITIME LEGISLATION. 
 
 TENTH PART. 
 
 Concerning the Ship's Creditors. 
 
 Art. 757. The rights of a ship's creditor are acquired by virtue of 
 the following claims, \-iz. — 
 
 (1) Expenses of a compulsory sale of the vessel, to which belong 
 
 also the expenses connected with the distribution of the 
 purchase-money, the cost of watching, keeping, and main- 
 taining the vessel and its appurtenances from the application 
 for the compulsory sale or from the arrest preceding such sale ; 
 
 (2) Expenses, not included in No. 1, of watching and keeping the 
 
 vessel and its appurtenances, from the time of its being 
 brought into the last port, in case it has been sold by order 
 of a court of law ; 
 
 (3) All official, ship, navigation, and port duties, more particularly 
 
 tonnage, light, quarantine, and port dues ; 
 
 (4) The claims of the crew arising out of contracts respecting their 
 
 services and wages ; 
 
 (5) Pilotage monies, and expenses for salvage, assistance, redemp- 
 
 tion, and reclamation ; 
 (G) The contributions of the vessel to General Average ; 
 
 (7) Claims of the creditors, to wliom the vessel has been bottomried, 
 
 as well as tlie claims arising out of other credit transactions 
 which the master as such has concluded in urgent cases 
 wliile the vessel was away from the port of registry 
 (Articles 497, 510), even if he is part-owner or sole owner 
 of the vessel. Claims for supplies furnished or services 
 rendered enjoy the same privilege as the aforesaid claims on 
 credit transactions, if such supplies have been furnished or 
 services rendered in cases of necessity, while the vessel was 
 away from the poii of registry, and for the preservation of 
 the vessel or for the performance of the voyage, to the master 
 as such and not on his personal credit, so far as the supplies 
 furnished or services rendered were required to make good 
 the necessity ; 
 
 (8) Claims for non-delivery of or damage to goods forming part of 
 
 cargo and to baggage coming under the second section of 
 Art. 674 ; 
 
 (9) Claims, not coming under one of the above heads, arising out 
 
 of law transactions whicJi the master as such has concluded 
 by virtue of liis loijil iniate authority and not of a special
 
 APPENDIX. 7uo 
 
 power of attorney (Art. 4.52, No. 1); also claim.s, not coming 
 under one of the al)ove lieacls, arisinj^ out of non-fulfilment 
 or incomplete oi- inii)crfect fulfilment of a contract made l)y 
 the owner, so far a.s the carrying out of the latter Ijelonged 
 to tlie duties of the master (Art. 452, No. 2) ; 
 (10) Claims arising out of tlie fault of a per.son belonging to the 
 crew (Articles 451 and 4.52, No. 3), although he may at 
 the same time be part-owner or the sole owner of the vessel, 
 
 Ai't. 758. Ship's creditors to whom the vessel has not already been 
 bottomried have a legal lien upon the vessel and its appurtenances. 
 
 The lien may be enforced against third parties who may have 
 possession of the vessel. 
 
 Art. 759. The legal lien of each of tliese ship's creditors extends also 
 to the gross freight of that voyage out of which his claim has arisen. 
 
 Art. 760. As a voyage within the meaning of this part shall be 
 considered that voyage for which the vessel is fitted out anew, or which 
 is commenced either in consequence of a new contract of aflfreightment 
 or after complete discharge of the cargo. 
 
 Art. 761. The ship's creditors specified in Art. 757, par. 4, have, in 
 respect of their claims arising out of a later voyage, a legal lien also 
 upon the freight of former voyages, so far as they are performed under 
 the same agreement as to service and wages (Articles 521, 536, 538, 554). 
 
 Art. 762. The provisions concerning the legal lien of the other 
 ship's creditors apply equally to the lien to which bottomry creditors 
 are entitled according to Art. 680. 
 
 The extent of the lien of the bottomry creditor is, however, deter- 
 mined by the contents of the bottomry contract (Art. 681), 
 
 Art. 763. The lien of a ship's creditor exists in like manner for 
 principal, interest, bottomry premium, and costs. 
 
 Art. 764. A ship's creditor enforcing his lien may sue the ship- 
 owner as well as the master, the latter even when the vessel is in the 
 port of registry (Art. 495). 
 
 A judgment given against the master is, as regards the lien, valid 
 against the shipowner. 
 
 Art. 765. The rights of a ship's creditor are not impaired by the 
 fact that the shipowner became personally liable for the claim, eitlier 
 at the time of its origin or subsequently. 
 
 This provision applies more particularly to the claims of the crew 
 founded upon agreements of service and wages (Art. 453). 
 
 Art. 766. When the vessel belongs to a joint-ownership the ship 
 and freight are liable to ship's creditors in tlie same manner as if 
 it belonged to a single owner. 
 
 a c J
 
 750 MARITIME LEGISLATION. 
 
 Art. 767. The lien of the ship's creditor upon the vessel becomes 
 void — 
 
 (1) By a compulsory sale of the vessel in a home port. The purchase- 
 
 money takes the place of the ship as regards the ships 
 creditors. 
 The ship's creditors must be publicly summoned to protect their 
 rights ; in other respects the provisions regulating the pro- 
 ceedings for a sale are reserved to the laws of the various 
 countries ; 
 
 (2) By the sale of the vessel effected by the master by virtue of his 
 
 legal authority in a case of urgent necessity (Art. 499) ; the 
 purchase-money takes the place of the vessel as regards the 
 ship's creditors so long as it is not paid by the purchaser or 
 is still in the hands of the master. 
 
 Art. 768. It is reserved to the laws of the various countries to 
 enact, that liens shall also become void in other cases of sale when the 
 ship's creditors have without effect been publicly summoned to give 
 notice of their liens, or when the ship's creditors have not given notice 
 of their liens to the competent court of law within a fixed period from the 
 time of the vessel's arrival in tlie port of registry or another home port. 
 
 Art. 769. Art. 767 does not apply when only one or more shares 
 are sold, but not the whole vessel. 
 
 Art. 110. With respect to the ship, the expenses of the compulsory 
 sale (Art. 757, No. 1) and the outlay for watching and keeping the 
 vessel from the time of its arrival in the last port (Art. 757, No. 2) 
 have precedence over all other claims of ship's creditors. 
 
 The expenses of the compulsory sale have precedence over the costs of 
 watching and keeping the vessel from the time of its arrival in the last 
 port. 
 
 Art. 11 \. As regards other claims, those relating to the last voyage (Art. 
 760), in which are included tho^e arising after the termination of the last 
 voyage, have precedence over the claims connected with former voyages. 
 
 As regards claims not relating to the last voyage, those relating to 
 a later voyage have precedence over those relating to a former one. 
 
 As regards the ship's creditors mentioned in Art. 757, No. 4, their 
 claims relating to a former voyage have the same precedence as those 
 relating to a later voyage, provided the different voyages are performed 
 under the same contract of service or wages. 
 
 When tlie Ijottomry voyage includes several voyages in the sense of 
 Art. 760, the bottomry creditor shall rank after those ship's creditors 
 whose claims refer to the voyages commenced after the termination of 
 the first of such voyages.
 
 APPENDIX. 707 
 
 Art. 772. Claims relating to the same voyage, as also tliose which 
 are to be considered as relating to the same voyage (Art. 771), are to 
 be paid in the following order, viz. — 
 
 (1) All official, ship, navigation and port dues (Art. 757, par, 3). 
 
 (2) Claims of the crew arising out of agreements concerning their 
 
 services and wages (Art. 757, par. 4). 
 
 (3) Pilotage monies and expenses for salvage, assistance, redemp- 
 
 tion, and reclamation (Art, 757, par. 5), contributions of 
 the vessel to General Average (Art. 757, par. 6), claims arising 
 out of bottomry and other credit transactions entered into 
 by the master in cases of necessity, as well as such claims 
 as are to be ti'eated on the same footing therewith (Art. 757, 
 par. 7). 
 
 (4) Claims for non-delivery of or damage to goods and baggage 
 
 (Art. 757, par. 8). 
 
 (5) Claims mentioned in Art. 757, pars. 9 and 10. 
 
 Art. 773. Of the claims referred to in pars. 1, 2, 4, and 5 of Art, 
 772, those comprised under one and the same head shall be considered 
 to have equal rights. 
 
 Of those claims, however, mentioned in par. 3 of Art. 772, a more 
 recent claim shall have precedence over one of an earlier date ; tliose 
 arising simultaneously have equal rights. 
 
 When the master has concluded several transactions in consequence 
 of the same case of necessity (Art. 757, par. 7), the claims resulting 
 therefrom shall be considered to have arisen simultaneously. 
 
 Claims arising out of credit transactions, more particularly out of 
 bottomry contracts entered into by the master for the purpose of 
 paying earlier liabilities under the third head of Art. 772, as well as 
 claims arising out of contracts concluded by him in order to extend the 
 term of payment of, to acknowledge or to renew such former liabilities, 
 shall only have the same priority as the earlier claim, although the 
 credit transaction or contract may have been necessary for the con- 
 tinuation of the voyage. 
 
 Art. 774. The ship's creditors' lien upon the freight (Art. 759) is 
 only valid so long as the freight is still unpaid, or the monies paid in 
 satisfaction of the freight are still in the hands of the master. 
 
 To such lien apply likewise the provisions of the foregoing articles 
 concerning priority. 
 
 Should the freight have been transferred, the lien of the ship's cre- 
 ditors may be enforced likewise against the transferee so long as the 
 freight is still unpaid or the money is in the hands of the master. 
 
 For so much of the freight as the shipowner has received he is per-
 
 758 MARITIME LEGISLATION. 
 
 sonally liable to the ship's creditors who have been thereby entirely or 
 partially deprived of their lien ; to each for such amount as he would 
 have received as his proportion if the said money had been distributed 
 according to the legal order of priority. 
 
 The same personal liability attaches to the shipowner, with respect 
 to o"oods shipped on his own account, to the extent of the current freight 
 at the loading port at the time of shipment. 
 
 Art. 775. When the shipowner uses the freight to satisfy one or 
 more creditors having any lien thereupon, he is answerable to creditors 
 who would have had a prior claim only so far as it is proved that he 
 has knowingly wronged them. 
 
 Art. 776. In so far as the shipowner has received the purchase-money 
 in the cases mentioned in the first or second heads of Art. 767 he is 
 personally responsible for the amounts received to all ship's creditors, 
 to the same extent as he is to the creditors of a voyage in case of 
 encashment of the freight (Articles 774, 775). 
 
 Art. 777. When the shipowner, after having received notice of the 
 claim of a ship's creditor for which his liability extends only to the 
 ship and freight, sends the vessel to sea on a new voyage (Art. 760), 
 should such a course not be indispensable in the interest of the ship's 
 creditor, he becomes likewise personally responsible for the claim to 
 the extent of that amount which the creditor would have realised if 
 the value of the vessel at the commencement of the voyage had been 
 distributed amongst the ship's creditors according to the legal order of 
 priority. 
 
 Unless proved to the contrary, it shall be considered that the creditor 
 would have received payment in full by such disti'ibution. 
 
 The personal liability of the owner arising out of the encashment of 
 freight which is subject to the lien of the creditor (Art. 774) is not 
 afiected by this Article. 
 
 Art. 778. In cases of General Average, the compensation for sacri- 
 fice or damage takes, as against the ship's creditor, the place of that 
 which the compensation is to make good. 
 
 The same rule applies to the indemnity which, in case of loss or 
 damage to the vessel or of non-payment of freight when goods have 
 been lost or damaged, is due to the shipowner by the party who has 
 caused the damage by his illegal conduct. 
 
 When the compensation or indemnity has been received by the 
 shipowner, he is personally responsible to the ship's creditors to the 
 e.Ktent of the amount received in the same manner as to the creditoi'S 
 of a voyage in case of encashment of the freight (Articles 774, 775). 
 
 Art. 77'.). In cusf of any coiupelition botwwn ship's creditors on-
 
 APPENDIX. 759 
 
 forcing their lien and other creditors on mortgage or otherwise, prefer- 
 ence is due to the ship's creditor's. 
 
 Art. 780. The provisions of Articles 767, 769, concerning the ex- 
 tinction of any liens of such ship's creditors, apply likewise to other 
 liens acquired in accordance with the laws of the various counti'ics 
 either by voluntary declaration or legal process against the ship or a 
 share therein and enforceable against a third holder. 
 
 The provision of Art. 767, No. 1, applies likewise to any liens to 
 which a shai'e of the vessel is subject in case of a compulsory sale of 
 such share. 
 
 In other respects the rights of the mortgage creditors mentioned in 
 the first paragraph are not subject to the enactments of this pai't, but 
 to the laws of the various countries. 
 
 Art. 781. Of liens upon the goods for freight, bottomry monies, con- 
 tributions to General Average, claims for salvage and assistance 
 (Articles 624, 626, 680, 727, 753), the lien for freight ranks after all 
 others ; amongst these claims the more recent have priority over the 
 earlier claim, those of simultaneous origin enjoy equal rights. Claims 
 originating in transactions which the master has concluded in conse- 
 quence of the same case of necessity are considered to be of simultaneous 
 origin. 
 
 The provisions of Art. 778 apply in the cases of General Average, 
 and of loss or damage by illegal conduct ; the provisions of Art. 7G7, 
 No. 2, apply in the case of a sale effected by the master for the purpose 
 of avoiding or lessening a loss according to the third section of Art. 
 504 ; and the provisions of Art. 776 apply when the party for whose 
 account the sale has taken place receives the purchase-money. 
 
 ELEVENTH PART. 
 
 C onceridny Insurances against the Dangers of Maritime Navigation. 
 
 First Division. — General Principles. 
 
 Art. 782. Every interest computable in money, which any person has 
 at stake in the preservation of ship or cargo from the dangers of mari- 
 time navigation, may be the subject of marine insurance. 
 
 Art. 783. The following more particularly may be insured : — 
 the vessel ; 
 the freight ; 
 the passage-monies ;
 
 7G0 MARITIME LEGISLATION. 
 
 the cargo ; 
 
 the bottomry monies ; 
 the average monies ; 
 
 other claims for the payment of which vessel, freight, passage- 
 monies, or cargo, are liable ; 
 the benefit expected from the arrival of the cargo at the port of 
 
 destination (imaginaiy profits) ; 
 the commission to be earned ; 
 the risk taken by the underwriter (re-insurance). 
 One of these insurances does not include the other. 
 Art. 784. Claims of the master and the crew for wages are not in- 
 surable. 
 
 A7-t. 785. The party insuring may either insure his own interest (in- 
 surance for own account) or the interest of a third party (insurance for 
 account of another, as agent), and in the latter case may or may not 
 giye the name of the assured. 
 
 The contract may also leave it undecided whether the insurance has 
 been effected for own account or as agent (for account of ' whom it may 
 concern '). If in the case of an insurance on account of ' whom it may 
 concern,' it should turn out that the same has been effected on account 
 of a third party, the provisions concerning insurance as agent come 
 into application. 
 
 The insurance is considered to have been effected for the account 
 of the party taking the insurance when it does not appear upon the 
 face of tlie conti-act that it has been effected as agent or for account of 
 ' whom it may concern.' 
 
 Art. 786. An insurance as agent is only binding upon the under- 
 writer when either tlie party taking the insurance has been authorised 
 by the assured to effect it, or when the absence of such authorisation 
 has been notified to the underwriter by the party taking the insurance 
 at the time of completing the contract. 
 
 When this notification has been omitted, the want of authorisation 
 cannot be made good by the subsequent approval of the insurance by 
 the assured. 
 
 When the notification has been given, the validity of the insurance 
 as against the underwriter is not dependent upon the subsequent 
 approval of the assured. 
 
 The underwriter on whom, according to the provisions of this 
 article, the insurance contract is not binding, is entitled, even when he 
 proves tlic invalidity of the contract, to the full premium. 
 
 Art. 787. When the insurance has been efi'ected by an empowered 
 substitute, hy a manager without authorisation, or by some other
 
 APPENDIX. 7C1 
 
 representative of the assured in the name of the latter, such represen- 
 tative is neither an insurer witliin the meaning of this act, nor is the 
 assurance itself an insurance done by an agent. 
 
 In doubtful cases it shall be considered, that even when an insur- 
 ance refers to the interest of a named third party it is an assurance 
 done as agent. 
 
 Art. 788. The underwriter is obliged to deliver to the party effecting 
 the insurance at his request a written document (policy) relating to 
 the insurance contract and bearing his signature. 
 
 Art. 789. The validity of the insurance contract is not affected by 
 the question whether at the time of its conclusion there is no longer 
 any possibility of a claim occurring for damage, or whether a claimable 
 damage has already occurred. 
 
 The contract is, however, invalid as an insurance contract if both 
 contracting parties were aware of the position of affairs. 
 
 If the underwriter alone was aware that the possibility of a claim- 
 able damage no longer existed, or if the insured party alone was aware 
 that a claimable damage had already occurred, the contract is invalid 
 as regards the other party to whom the position of affairs was unknown 
 In the second case the underwriter is entitled to the full premium, 
 even when he relies upon the invalidity of the contract. 
 
 When the contract has been concluded for the party taking the 
 insurance by a representative, the stipulations of the second section of 
 Art. 810 apply ; in case of an insurance as agent, the provisions of 
 Art. 811 ; and in case of an insurance of several objects or of a col- 
 lection of objects, the provisions of Art. 814. 
 
 Art. 790. The full value of the insured object is the insurable value. 
 The sum insured shall not exceed the insurable value. 
 The insurance has no legal validity, so far as it exceeds the insur- 
 able value (over-insurance). 
 
 Art. 791. When in the case of a simultaneous conclusion of various 
 insurance contracts, the total amount of the sums assured exceeds the 
 insurable value, all underwriters together are only answerable to the 
 extent of the insurable value, each of them being liable for such a per- 
 centage of the insurable value as the sum he has insured represents in 
 proportion to the total of the amounts insured. When doubts arise in such 
 cases the contracts shall be considered as simultaneously concluded. 
 
 Insurance contracts for which a common policy has been given, as 
 also insurance contracts concluded on the same day, are considered as 
 simultaneously concluded. 
 
 Art. 792. When an interest which has already been insured to its 
 full value is again insured, the latter insurance is legally invalid so far
 
 7G2 MARITIME LEGISLATION. 
 
 as the interest has ah-eady been insured for the same time and against 
 the same danger (double insurance). 
 
 If the full value is not covered by the earlier insurance, the later 
 insurance is only valid for that part of the value not previously insured, 
 so far as the insurance has been taken for the same time and against 
 the same danger. 
 
 Art. 793. The later insurance is, however, legally valid notwith- 
 standing the previous insui'ance— 
 
 (1) When at the conclusion of the later insurance, it is agreed with 
 
 the underwriter that rights arising out of the previous in- 
 surance shall be ceded to him. 
 
 (2) When the later insurance is concluded with the condition that 
 
 the underwriter shall only be answerable so far as the 
 assured may be unable to enforce payment against the 
 former underwriter on account of insolvency, or so far as 
 the former insurance may be legally invalid. 
 
 (3) When the former underwriter is by formal notice released from 
 
 liability so far as is necessary to avoid a double insurance, 
 the later underwriter being informed thereof at the conclu- 
 sion of the later insurance. In this case the former under- 
 writer is entitled to the full premium although he is freed 
 from his obligation. 
 
 Art. 794. In case of double insurance the later iiasurance, not the 
 previous one, is legally valid, when the previous insurance has been 
 taken as ayent without authorisation, the later insurance on the other 
 hand being effected by the assured himself, provided the assured at 
 the time of effecting the later insurance was not informed of the 
 previous one, or gi\es notice to the underwriter at the time of its 
 conclusion that he repudiates the pi'evious insurance. 
 
 The provisions of Articles 900 and 901 apply in such cases as far 
 as regards the rights of the former underwriter to the premium. 
 
 Art. 795. When several insurances have been made simultaneously 
 or successively, a subsequent renunciation of rights attaching against 
 one underwriter cannot influence the rights and obligations of the 
 remaining underwriters. 
 
 Art. 796. When the insured sum falls short of the insurable value, 
 the underwriter in case of a partial damage shall make good the 
 amount of such damage only in the same proportion as the sum insured 
 bears to the insurable value. 
 
 Art. 797. When by arrangement of the parties the insurable value 
 is fixed at a stated sum ('valuation,' 'valued policy '), such stated sum 
 is binding' upon the pai-lics as tlic in.suiablc value.
 
 APPENDIX. 763 
 
 The underwriter is, however, entitled to demand a reduction of the 
 valuation, if he proves it to be considerably overstated ; if an imaginary 
 profit has been insured at a valuation, lie shall, if he disputes such 
 estimate, prove that it exceeded the profit which, at the time of the 
 conclusion of the contract, could, according to connnercial calculation, 
 possibly liave been expected. 
 
 A policy containing the clause ' provisionally valued ' shall, so long 
 as a definite "valuation has not been inserted, be considered as an 
 unvalued (open) policy. 
 
 When freight has been insured the valuation shall only influence 
 the amount claimable against the underwriter when such has been 
 expressly stipulated. 
 
 Art. 798. When several objects, or a collection of objects, are in- 
 cluded in a policy under the same assured sum, and for some of them 
 special valuations hav^e been agreed to, the objects specially valued are 
 considered as separately insured. 
 
 Art. 799. Unless the parties have agreed upon another basis of 
 value, the insurable value of ship shall be considered to be its value at 
 the time when the underwritei-'s risk begins. 
 
 This rule applies even when an estimate of the insurable value of 
 the vessel has been inserted. 
 
 Art. 800. The cost of outfit, the wages, and the cost of insurance 
 may be insured together with the ship or separately, so far as they may 
 not have been previously covered by insurance of the gross freight. 
 They are considered to be insured together with the ship only when 
 such has been mutually agreed upon. 
 
 Art. 801. The freight may be insured to the extent of its gross 
 amount in so far as it may not have been previously covered by insur- 
 ance of the cost of outfit, of wages, and cost of insurance. 
 
 The amount of freight stipulated by the contracts of afireightment 
 shall be considered as the insurable value of the freight, and when a 
 fixed amount of freight has not been agreed upon, or so far as goods 
 have been shipped on account of the shipowner, the amount of the 
 current freight (Art. 620). 
 
 Art. 802. When an insurance upon freight does not mention 
 whether the whole or only a part thereof is insured, the whole freight 
 shall be considered as insured. 
 
 W^hen it is not stated whether the gross or net fx-eight is insured, 
 the gross freight shall be considered as insured. 
 
 When the freight of the outward voyage and the freight of the 
 homeward voyage have been covered in one insurance, and it has not 
 been stated what proportion of the insured sum shall apply to the
 
 7(M MARITIME LEGISLATION. 
 
 freight of the outward voyage and what to that of the homeward 
 vovao-e, one moiety of such sum shall be accounted as the freight of the 
 outward voyage, and one moiety as the freight of the homeward voyage. 
 
 Art. 803. Unless the parties have agreed upon another basis of 
 value, the value which the goods may have at the place and time of 
 shipment, including all expenses incurred till they have been received 
 on board, together with the cost of insurance, shall be considered as 
 the insurable value. 
 
 The freight and the charges during the voyage and at the place of 
 destination are only included when a special agreement has been made 
 to that effect. 
 
 The provisions of this Article are also applicable when the insurable 
 value of the goods has been inserted. 
 
 Art. 804. When the cost of outfit or the wages are insured, whether 
 separately or by insurance of the gross freight, or when in the case of 
 an insurance on goods, the freight or the charges during the voyage 
 and at the place of destination are insured, the underwriter is not 
 iable to pay for that portion of the same which in consequence of a 
 casualty has not become due. 
 
 Art. 805. In the case of an insurance upon goods, imaginary profit 
 or commission is only considered as included in the assurance if such 
 has been stipulated by the contract, even though the insurable value of 
 the goods may have been declared. 
 
 If when imaginary profit has been included in the insurance the 
 insurable value has been declared, but without stating what proportion 
 of the said value relates to the imaginary profit, it shall be considered 
 that ten per cent, of the said value is intended to cover the imaginary 
 profit. If when imaginary profit has been included in the assurance, 
 the insurable value has not been declared, then ten per cent, of the 
 insurable value of the goods (Art. 803) is considered to have been 
 insured as imaginary profit. 
 
 The provisions of the second paragraph are applicable also to cases 
 where commission has been included in the insui-ance, with the modifi- 
 cation, however, that two per cent, is to be substituted for the ten 
 per cent. 
 
 Art. 806. If imaginary profit or commission has been separately 
 insured, but the insurable value not declaimed, it shall in doubtful cases 
 be considered that the insured sum is to be taken also as the insurable 
 value. 
 
 Art. 807. Monies advanced upon bottomry may be insured on 
 account of the bottomry creditor together with the bottomry premium. 
 
 If an insurance on bottomry monies does not mention what inte-
 
 APPENDIX. 765 
 
 rests have been bottomried, it shall be considered that tlie bottomry- 
 advances are insured upon ship, freight, and cargo. If the whole of 
 these interests have not actually been bottomried, the underwriter 
 alone is entitled to claim the benefit of the foregoing enactment. 
 
 Art. 808. When the underwriter has fulfilled his engagement, he 
 acquires, so far as he has paid a loss which the assured was entitled to 
 claim against a third party, the rights of the assured against such third 
 party, without prejudice, however, to the provisions of the second para- 
 grapli of Art. 778, and the second paragraph of Art. 781. 
 
 The assured shall, at the request and at the expense of the under- 
 writer, provide him with a certified document acknowledging his 
 assumption of all rights against the third party. 
 
 The assured party is responsible for any action by which he preju- 
 dices those rights. 
 
 Ai't. 809. In case of the insui'ance of a claim the payment of which 
 is secured upon some interest exposed to the perils of the sea, the 
 assured in case of damage shall cede to the underwriter, when the 
 latter has fulfilled his engagement, his rights against the debtor to 
 the same extent to which the underwriter has made good the loss. 
 
 The insured party is not l)ound to enforce his rights against the 
 debtor before claiming against the underwriter. 
 
 Second Division. — Concerning Statements made at the Time of 
 Conclusion of the Contract. 
 
 Art. 810. The party taking the insurance, whether acting on his 
 own account or as agent, shall inform the underwriter at the time of 
 conclusion of the contract of all circumstances within his knowledge, 
 which, as being of importance for the due appreciation of the risk 
 which the underwriter is taking upon himself, are of a nature to in- 
 fluence him in his decision either to enter into the contract at all or on 
 what conditions. 
 
 When the contract is concluded by a representative on behalf of the 
 party taking the insurance, the circumstances known to the represen- 
 tative must also be stated. 
 
 Art. 811. In the case of an insurance as agent, the underwriter must 
 at the conclusion of the contract be likewise informed of all circum- 
 stances known to the assured himself or to any intermediate agent. 
 
 This does not, however, apply to facts within the knowledge of the 
 assured or of an intermediate agent when such circumstance has come 
 to tlieir knowledge so late that, without resorting to extraordinaiy
 
 706 MARITIME LEGISLATION. 
 
 measures, they would be uiuable to notify it to tlie pnrty taking the 
 insurance before the conclusion of the contract. 
 
 Nor does it apply to facts within the knowledge of the assured 
 when the assurance has been effected without his authority or know- 
 ledge. 
 
 Art. 812, When the obligation mentioned in the two foregoing 
 Articles is not fullilled, the contract is not binding upon the under- 
 writer. 
 
 Tliis rule, however, does not apply when tlie fact not notified was 
 kno^vn to the underwriter, or when it might be taken for granted that 
 it was known to him. 
 
 Art. 813. When the party taking the insurance as at the time of 
 concluding the contract made an incorrect statement concerning an 
 important fact (Art. 810), the contract is not binding upon the under- 
 writer unless the incorrectness of the statement was known to him. 
 
 This provision applies irrespective of the question whether the in- 
 correctness of the statement was wilful or accidental, and whether with 
 or without fraudulent intention. 
 
 Art. 814. In the case of insurance of several objects or of a collec- 
 tion of objects, if the provisions of Articles 810-813 have been infringed 
 with respect to a circumstance relating only to a portion of the insured 
 objects, then the contract continues in force against the underwriter 
 as regards the remaining portion. The contract is, however, invalid 
 against the underwriter with respect to this portion also, if it is clear 
 that he would not have insured such portion alone on the same con- 
 ditions. 
 
 Art. 815. The underwriter is entitled to the full premium in cases 
 contemj)lated by Articles 810-814, even when he relies upon the total 
 or pai-tial invalidity of the contract. 
 
 TriiHD Division. — Obligations of the Assured arising out op 
 THE Contract of Insurance. 
 
 Art. 81 G. In default of a special agreement to the contrary, the 
 premium is payable immediately after the conclusion of the contract, 
 and, when a policy is required, against delivery of such policy. 
 
 The party taking the insurance is liable for the payment of the 
 premium. 
 
 In case of an insurance effected as agent, if the party taking the 
 insurance has become insolvent and has not received the premium from 
 tlie assured, the undcrwritor may claim payment of the promium like- 
 wise from the assured.
 
 APPENDIX. 767 
 
 Art. 817. When before cominencement of the underwriters risk 
 another voyage has been substituted for the voyage insured, tlie under- 
 writer is exonerated from all liability in case of insurance upon ship 
 and freight ; with respect to other insurances the risk of the substituted 
 voyage only attaches to tlie underwriter when the alteration in the 
 voyage has neitlier been made by the assured nor by his orders nor witli 
 his approval. 
 
 When the insured voyage is altered subsequently to the cornmence- 
 ment of the underwriter's risk, the latter is not answerable for accidents 
 occurring after the alteration in the voyage. He is, however, answer- 
 able for such accidents when the alteration has been made neitlier by the 
 insured nor by his orders nor with his approval ; or when the alteration 
 has been occasioned by a casualty, unless such casualty results from 
 perils which are not at tlie risk of the underwriter. 
 
 The voyage is altered so soon as the determination to direct it to 
 another port of destination has been carried into effect, althougli tlie 
 routes to the two ports of destination may not have as yet diverged. 
 This rule applies as well to cases referred to in the first as to those 
 referred to in the second paragraph of this Article. 
 
 Art, 818. If the commencement or the termination of the voyage 
 be unduly delayed by the assured or by his orders or with his approval ; 
 or if the ordinary course of the insured voyage be deviated from, or a 
 port be entei'ed the putting into which cannot be considered to be in- 
 cluded in the insured voyage ; or if the assured otherwise cause an 
 augmentation of or alteration in the risk, more especially by the non- 
 fulfilment of a promise expressly made in this respect ; then the under- 
 writer is not answerable for accidents which may afterwards occur. 
 
 This result, however, does not take place — 
 
 (1) If it is clear that the augmentation of or alteration in the risk 
 
 could have had no influence upon the subsequent casualty; 
 
 (2) If the augmentation of or alteration in the risk, subsequently 
 
 to the risk attaching upon the underwriter, has been oc- 
 casioned by a casualty, provided the latter does not result 
 from a danger for which the underwriter is not answerable ; 
 
 (3) If the master has been impelled by the dictates of humanity to 
 
 deviate from the course of the voyage. 
 
 Art. 819. If at the conclusion of the contract the name of the 
 master has been given, this fact alone does not imply a promise that 
 such master shall retain the command of the vessel. 
 
 Art. 820. In case of insurance upon goods the underwriter is not 
 responsible for any casualty, if and so far as such goods have not been 
 forwarded by the vessel designated for their conveyance. He is
 
 768 MARITIME LEGISLATION. 
 
 however, responsible to the extent of the contract, if, subsequently to 
 the commencement of his risk, without orders from or approval of the 
 assured, the floods are forwarded in some other manner than by the 
 vessel desif^nated for their conveyance, or when this has been done in 
 consequence of a casualty, unless such casualty results from a risk for 
 which the underwriter was not responsible. 
 
 Art. 8"^1. When an insurance is effected on goods without stating 
 the name of the vessel or vessels (insurances on 'ship or ships'), the 
 assured, immediately he has received intelligence of the name of the 
 vessel on board of which the insured goods have been shipped, shall 
 communicate this information to the underwriter. 
 
 In case of non-fulfilment of this obligation the underwriter is not 
 responsible for any casualty happening to the goods so shipped. 
 
 Art. 822. Every casualty must be notified to the underwriter so 
 soon as the party efiecting the insurance or the assured, if the latter 
 is aware of the insurance, receives information thereof ; otherwise the 
 underwriter is entitled to deduct from the claim for damage such 
 amount as might have been saved if the notification had been made in 
 due time. 
 
 Art. 823. When a casualty happens the assured is bound to do every- 
 thing in his power to save the insui'ed objects, as well as to avoid greater 
 loss. 
 
 lie shall, however, if possible, previously communicate with the 
 underwriter respecting the steps to be taken. 
 
 Fourth Division. — Concerning the Extent of the Risk. 
 
 Art. 824. The underwriter is responsible for all risks to which 
 vessel or cargo is exposed during the period of the insurance, so far 
 as no stipulation to the contrary is contained in the following regula- 
 tions or in the special agreement. 
 
 He shall bear more particularly — 
 
 (1) Risk arising from the element and other perils of the sea, even 
 
 when occasioned by the default of a third party, such as : 
 penetration by the sea-water, stranding, shipwreck, sinking, 
 fire, explosion, lightning, earthquake, damage by ice, ttc; 
 
 (2) Risk of war and of any Government dispositions ; 
 
 (3) Risk of arrest on the application of a third party, and not 
 
 caused by the default of the assured ; 
 
 (4) Risk of theft, as also the risk of piracy, plunder, and other 
 
 acts of violence ; 
 
 (5) Risk of the hypotliecation of tlio insured goods for the prose- 
 
 1
 
 APPENDIX. 709 
 
 cution of the voyage, or of their disposal, sale, or conver- 
 sion for the same purpose (Articles 507-510, 734-) ; 
 
 (<)) Risk of dishonesty or default of any niemljer of the crew, so 
 far as a loss may therel>y be entailed u})on the insured 
 object ; 
 
 (7) Risk of collision, no matter whether the assured sustains loss 
 from the collision directly, or indirectly by being required to 
 make good damage inflicted upon a third party. 
 
 Art. 825. The following damages are not at the charge of the under- 
 writer — 
 
 (1) In the case of an insurance on ship or freight — 
 
 Damage occasioned in consequence of the vessel ha\ing been 
 sent to sea in an unseaworthy condition, or improperly 
 fitted out or manned, or without the necessary papers (Art. 
 480); 
 
 Damage which, except in the case of collision, arises out of 
 the liability of the owner to make good damage occasioned 
 to a third party by a member of the crew (Articles 451 
 and 452). 
 
 (2) In the case of an insurance upon the ship — 
 
 Damage to the vessel and her inventory resulting only from 
 wear and tear in the ordinary employment of the vessel ; 
 
 Damage to the vessel and her inventory arising only from 
 old age, decay, or worm. 
 
 (3) In the case of an insurance upon goods or freight — 
 
 Damage arising from the natural condition of the goods, 
 more particularly from internal corruption, diminution, 
 ordinary leakage, etc., or from defective packing of the 
 goods, or occasioned thereto by rats or mice ; when, how- 
 ever, the voyage has been unusually protracted by an 
 accident, for which the underwriter is responsible, the 
 latter shall make good the damages described under this 
 head to the same extent as they are attributable to the 
 delay ; 
 ( 1) Damage arising out of any default of the assured, and in the 
 case of insurance of goods or imaginary profit such dama<fe 
 also as may have been occasioned by a default of the shipper 
 consignee, or supercargo in their respective capacities. 
 Art. 826. The liability of the underwriter to make good a dama<^e 
 attaches also when the assured has a claim for compensation against the 
 master or some other person. The assured may in the first instance 
 require payment from the underwriter. He shall, however, o-ive alL 
 
 3 D
 
 770 MARITIME LEGISLATION. 
 
 necessary assistance to tlie underwriter for the effectual prosecution of 
 such chiim, and shall likewise, at the underwriter's expense, exercise all 
 suitable precaution accordino; to the circumstances of the case for 
 sejurins the claim by withholding the freight, by causing the vessel to 
 be arrested, or by other proper means (Art. 823). 
 
 Art. 827. When a vessel is insured for a voyage the risk of the 
 undei-writer begins from the time when the taking on board of cargo 
 or ballast commenced, or, if neither cargo nor ballast is to be taken on 
 board, from the time of the departure of the vessel. It terminates with 
 the completion of the discharge of the cargo or ballast at the port of 
 destination. 
 
 AV^lien the discharge is unduly delayed by the assured, the risk 
 terminates at the time when the discharge would have been completed 
 if such delay had not taken place. 
 
 When, before completion of the discharge, cargo or ballast has been 
 taken in for another voyage, the risk terminates at the time when such 
 shipment of cargo or ballast has been commenced. 
 
 Art. 828. When the insurance is effected upon goods, imaginary 
 pro tit, or the commission to be earned on account of goods shipped, the 
 risk commences at the time when the goods leave the shore for the 
 })urpose of being loaded in the vessel or the lighters ; it terminates at 
 the time when the goods again reach the shore at the port of desti- 
 nation. 
 
 When the discharge is unduly delayed by the assured, or, in the 
 ca.se of an insurance on goods or imaginary profit, by the assured or by 
 one of tlie persons mentioned in Art. 825, No. 4, the risk terminates 
 at the time when the discharge would have been completed if such delay 
 liad not taken j)lace. 
 
 The underwriter takes the risk of such use of lighters in connection 
 with the sliipment or discharge as may be in accordance with the custom 
 of the port. 
 
 Art. 829. In the case of insurance upon freight, the risk arising 
 out of accidents to which the ship and through it the freight are 
 exposed commences and terminates at the same moment at which the 
 risk would commence and terminate in the case of an insurance upon 
 sliip for the same voyage ; the risk arising out of accidents to which 
 the goods and tlirough them the freiglit are exposed commences and 
 terminates at the same inomeut at which the risk would commence and 
 terminate in case of an insurance upon goods for the same voyage. 
 
 With r('K])f!ct to insurance upon passagcvmonies, the risk connnences 
 and tiriiiiii.itcs at the; same moment as it would commence or terminate 
 witli ;ui insui'aiK-c ii|i(>ii tlic sliip.
 
 APPENDIX. 771 
 
 Tlie underwriter on freiglit and passage-monies i.s only responsible 
 for a casualty happening to the vessel so far as contracts of affVeight- 
 nient or for the conveyance of passengers have already been entered 
 into ; and, when the owner ships goods on his own account, only so far 
 as such goods have already left the shore for the purpose of being 
 loaded in the vessel or in lighters. 
 
 Art. 830. In the case of insurance upon bottomry and average- 
 monies the risk commences at the time the advances are made, or, 
 when the assured has himself provided the average-monies, at the 
 moment of their being expended ; it terminates at the moment at 
 wliich it would terminate if the insurance were taken upon the objects 
 which have been hypothecated, or for which tlic avei-age monies have 
 been expended. 
 
 Art. 831. The underwi-iter's risk when commenced continues 
 thi-uughout the stipulated period or the insured voyage without inter- 
 ruption. The underwriter more particularly takes also the risk of 
 casualty during the stay in a port of distress or an intermediate port, 
 and, in the case of an insurance upon an out-and-home voyage, during 
 the stay of the vessel in the port of destination of the outward 
 voyage. 
 
 When the goods must be temporarily discharged or when the vessel 
 must be taken ashore for repairs, the underwriter is liable also for the 
 risk during the time that the goods or the vessel are ashore. 
 
 Art. 832. If, after inception of the risk, the insured voyage is 
 voluntarily or by compulsion abandoned, the port in which the voyage 
 terminates takes the place of the port of destination with respect to 
 the termination of the risk. 
 
 When, after abandonment of the voyage, the goods are forwarded 
 to the port of destination otherwise than by the vessel named for their 
 conveyance, the risk continues to attach with respect to such goods 
 even if they are forwarded wholly or in part by land. The underwriter 
 in such cases bears also the expense of the previous discharge, the 
 expense of the temporary warehousing, and the excess of expense 
 incurred in forwarding the goods even if they have been forwarded by 
 land. 
 
 Art. 833. Articles 831 and 832 apply only when not in contradic- 
 tion to the stipulations of Articles 818 and 820. 
 
 Ai^t. 834. When the period of insurance is stipulated in days, 
 weeks, months, or years, the time shall be computed according to the 
 calendar, and the day from midnight to midnight. The underwriter 
 beai"s the risk during the day of its commencing as well as of its ter- 
 minating. 
 
 3 d2
 
 772 MARITIME LEGISLATION. 
 
 "With respect to computation of time, the reckoning at the place 
 where the sliip happens to be is decisive. 
 
 Art. 835. Should tlie vessel be insured upon a time-policy, and at 
 tlie expiration of the period agreed therein be in course of a voyage, 
 the insurance shall be considered, in default of an agreement to the 
 contrarv, to be prolonged until the arrival of the vessel in the next 
 port of destination, and, if the discharge takes place in such port, until 
 the termination of the discharge (Art. 827). The assured is, however, 
 at liberty to waive such prolongation by notice to the underwriter 
 before the sailing of the vessel. 
 
 In case of prolongation the assured shall continue to pay the 
 agreed time-premium for the period of such prolongation, and, if the 
 vessel should be missing, then until the expiration of the time when 
 the assured becomes entitled to claim payment upon her as a total loss 
 for want of news. 
 
 In case of waiver of the prolongation no claim can be made upon 
 the underwriter on the ground of the ship being missing, if the period 
 allowed for receipt of new^s does not terminate until after the expiration 
 of the period of insurance. 
 
 Art. 836. In the case of an insurance effected for one or other of 
 several ports, the assured may select one from amongst these ports ; 
 in the case of an insurance for two or more ports, the assured is entitled 
 to visit every one of the ports mentioned. 
 
 Art. 837. When the insurance has been effected for several ports or 
 when the assured has reserved the right to call at several ports, the 
 assured is permitted to visit such ports only in the stipulated order, 
 or in default of any agreement then in the order which the ordinary 
 course of the voyage would demand ; he is, however, not obliged 
 to visit all the various ports named. 
 
 So far as the contrary does not appear upon the face of the policy, 
 the order in which the ports are named therein is considered to be the 
 order stipulated. 
 
 Art. 838. The underwriter is responsible for — 
 
 (1) Contributions to General Average, including such as the assured 
 
 has himself to bear on account of damage sustained by him ; 
 contributions to which, in conformity with Articles 637 and 
 724, the principles of General Average apply, being placed on 
 the same footing as contributions to General Average ; 
 
 (2) Sacrifices which would belong to General Average if the vessel had 
 
 had goods on board other than such as belonged to the owner ; 
 
 (3) Other outlay necessarily or judiciously incurred witli the view 
 
 of saving Hie ])rop('rty, as also of avoiding heavier loss
 
 APPENDIX. IT?, 
 
 (Art. 823), even if the measures resorted to have proved 
 unsuccessful ; 
 
 (4) Expenses rendered necessary for the investigation and deter- 
 niination of tlie loss falling upon the underwriter, more 
 especially expenses of survey, valuation, sale, and of making 
 up the average statement. 
 
 Art. 839. The liability of the underwriter to make good contribu- 
 tions to General Average and such other contributions as are placed on 
 the same footing as General Average is regulated )jy the average state- 
 ment made up at tlie proper place, whether at home or aljroad, in con- 
 formity witli the laws in force at the place where it is made up. More 
 especially, the assured who has sustained a General Average loss shall 
 not demand from the underwriter more than the amount of tlie loss as 
 shown by the average statement ; but tlie underwriter on the othej- 
 hand is liable for the whole of such amount, the insurance value more 
 particularly not being taken into consideration. 
 
 Neither is the assured entitled to claim again.st the underwriter 
 payment of damages which according to the law of the place where 
 the average statement has been prepared do not belong to General 
 Average, on the plea that such damages would be General Average, 
 according to other law, more particularly according to the law in foi'ce 
 at the place where the insurance has been effected. 
 
 Art. 840. The underwriter, however, is not responsible for contribu- 
 tions referred to in the foregoing Article so far as they result from an 
 accident for which the underwriter is not responsible according to the 
 contract of insurance. 
 
 Art. 841. When the average statement has been made up by a 
 person authorised thereto either by law or custom, the underwriter 
 may not contest its correctness because the laws of the place where it 
 has been made up have not been adhered to and the assux-ed has 
 suffered loss thereby, unless the latter has been himself the cause of 
 such additional loss by insufficient attention to his rights. 
 
 The assured shall, however, cede to the underwriter his claims 
 against parties unduly benefited at his expense. 
 
 On the other hand, the underwriter is at liberty in all cases to dispute 
 the correctness of the average statement as against the assured, in so 
 far as a loss sustained by the assured himself for which he would not 
 have been entitled to indemnification according to the law of the place 
 where the average statement was made up, shall nevertheless have been 
 treated as General Average. 
 
 Art. 842. With respect to a loss suffered ]:)y the assured, and either 
 belonging to General Average or claimable on the same footing as
 
 774 MAKiriME LEGISLATION. 
 
 General Average, the underwriter, if tlie regular course of procedure 
 necessary to ascertain and apportion the damage has been commenced, 
 is liable to make good amounts payable to tlie assured only so far as 
 the assured has not been able to recover even by an action at law the 
 compensation due to him, if such a course were properly open to 
 
 him. 
 
 Art. 843. If, without the fault of the assured, the regular course 
 of procedure has been neglected, he may claim against the underwriter 
 direct, subject to the stipulations of the contract of insurance, the 
 Avhole amount of his loss. 
 
 Art. 844. The underwriter is liable for the damage only to the 
 extent of the amount insured. 
 
 He shall, however, make good in full the expenses mentioned in 
 Art. 838, heads 3 and 4, even if the total claim so arising should exceed 
 the sum insured. 
 
 If in consequence of a casualty such expenses have already been 
 occasioned — for example, if an outlay has been incurred for redemption 
 or reclamation, or if liabilities have already been incurred for the pvxr- 
 pose of replacing or repairing any objects damaged by such casualty, 
 for instance, if average-monies have for such purpose been expended, 
 or if the assured ha\e already paid contributions to the General Average 
 or if the assured have already become personally liable to pay such 
 contributions, and should, at a subsequent period, a new accident 
 happen, the underwriter is liable to make good claims arising out of 
 the later accident to the extent of the whole sum insured, irrespective 
 of tlie former outlays and contriljutions for which lie is responsible. 
 
 Art. 845. After the occurrence of a casualty, the underwriter is 
 entitled, by jiayment of tlie full amount insured, to exonerate himself 
 from all furtlier liability arising out of the contract of insurance, more 
 particularly fi-om the obligation to reimburse expenses rendered neces- 
 .sary for the salving, preservation, and rehabilitation of the interest 
 insured. 
 
 Wlieii at tlic time of the occurrence of the casualty a portion of 
 tlic insuied objects had already ceased to be exposed to the risk which 
 the undei-writer has taken upon liimself, the latter, if he avail himself 
 of liis i-iglits under this section, sliall not be recjuired to make good that 
 proportion of the assured sum which would have been due from such 
 poition. 
 
 The underwriter Ijy payment of tlie insured sum acquires no riglit 
 to the objects assured. 
 
 Notwithstanding tlio payment of the insured sum tlie underwriter 
 is li;ible to make good such expenses ;is niav h;i\c Ix'en incurred tor the
 
 Al'PKXDlX. 7", 
 
 SJilviiig, preservation, or rclialjilitatioii of tlio ol)ject.s insured, before tlic 
 assured had received notice of his intention to avail himself of this right. 
 
 Art. 846. The underwriter, under peiialty of forfeiture of the right 
 granted to liim by Art.- 845, shall make known to the assured his 
 intention to avail himself of such right at latest on the third day from 
 the expiration of that day on which the assui-ed has informed him, not 
 only of the casualty, its nature and immediate consequences, but also, 
 .so far as they are known to the assured, of all other circumstances 
 connected therewith. 
 
 Art. 847. When the insurance has not been effected upon the full 
 value, the underwriter is only responsible for the contributions, sacri- 
 lices, and expenses mentioned in Art. 838 under heads 1 to 4, in the 
 same proportion that the sum insured bears to the insurable \alue. 
 
 Art. 848. The obligation of tlie underwriter to make good a loss is 
 neither cancelled nor diminished by the occurrence of a fresh casualty 
 oi" even of a total loss arising out of a danger which is not at the risk 
 of the underw liter. 
 
 Art. 849. The underwriter is not liable to make good particular 
 averages when, irrespective of the expenses necessary to investigate 
 and ascertain the amount of the damage (Art. 838, No. 4), they do not 
 exceed three per cent, of the insurable value ; when, however, they 
 amount to more than three per cent., the underwriter shall make good 
 such losses without deduction of the three per cent. 
 
 When the vessel has been insured for time or for several voyages, 
 the tliree per cent, shall be calculated for each single voyage. Tlio 
 meaning of the term ' voyage ' is defined by the provisions of Art. 
 760. 
 
 A7-t. 850. The underwriter shall make good the contributions, 
 sacrifices, and expen.ses defined under Art. 838, heads 1-3, even wlien 
 they do not amount to three per cent, of the insurable value. The 
 same, however, are not to be taken into consideration in computing tl:e 
 three per cent, mentioned in Art. 849. 
 
 Art. 851. Should it have been agreed tliat the underwriter shall 1 e 
 exempted from a certain percentage, the provisions contained in Articles 
 849 and 850 are to be applied, with this modification, that the amount 
 of percentage mentioned in the contract is substituted for the three 
 per cent, therein enacted. 
 
 Art. 852. Should it have been agreed that the underwriter shall 
 not be answerable for the risk of war, and that the insurance against 
 other risks shall only run until a molestation of war occurs, which 
 agreement is more particularly presumed to have been made when the 
 contract has been concluded with the clause, ' free from molestation of
 
 776 MARITIME LEGISLATIOX. , 
 
 war ' tlie underwriter's risk terminates at tlie moment when tlic danger 
 of war begins to exercise an influence upon the voyage, more particu- 
 larly therefore when the commencement or continuation of the voyage 
 is prevented by men-of-war, privateers, or by blockade, or delayed for 
 the purpose of avoiding the dangers of war ; or when the vessel from 
 such a cause deviates from its course, or when the master loses the free 
 control over the vessel through molestation of war. 
 
 Art. 853. Should it have been stipulated that the underwriter shall 
 be exempt from the risk of war, but be liable for all other risks even 
 after a molestation of war has commenced, which stipulation is more 
 particularly presumed to have been made when the contract has been 
 concluded with the clause ' only against dangers of the sea,' the under- 
 writer's risk terminates only with the condemnation of the insured 
 object, or so soon as it would have terminated if the risk of war had 
 not been excepted ; the underwriter is, however, not responsible for 
 the damages caused immediately by danger of war ; he is therefore not 
 answerable more particularly — 
 
 For confiscation by any Powers engaged in war ; 
 
 For seizure, damage, destruction, and plunder by men-of-war or 
 privateers ; 
 
 For expenses arising out of arrest and reclamation, out of blockade 
 of the port where the vessel is lying, or warning away from a 
 port under blockade, or out of voluntary delay on account of risk 
 of war ; 
 
 For the following consequences of such a delay : deterioration and 
 diminution of the goods, expense and risk of their discharge and 
 warehousing, expense of their forwarding. 
 
 In doubtful cases it is presumed that a damage has not been occa- 
 sioned by risk of war. 
 
 Art. 854. If the contract has been concluded with the clause ' for 
 safe arrival,' the underwriter's risk terminates at the moment when the 
 vessel has anchored, or been moored in the port of destination at the 
 customary or proper place. 
 
 The underwriter is further only responsible — 
 
 (1) In case of insurance on the ship, when either a total loss occurs, 
 
 or when the vessel is abandoned (Art. 805) or sold as in- 
 capable or unworthy of repair in consecjuonce of a casualty 
 happening previous to its arrival at the port of destination 
 (Art. 877). 
 
 (2) In case of insurance on goods, when the goods, or a portion of 
 
 (liciii, in conscciucnce of a casualty do not reach the port of 
 dcsf iii;it ion, wn^Vi' ]i;iil icnlai-ly w licii l)cfoi'e roacliiiig such
 
 APPENDIX. 777 
 
 port they ;ire sold in consoquonce of ;xn accident. If tlie 
 
 goods reucli the port of destination tlie underwriter is 
 
 neitlier answerable for an injury nor for a loss resulting 
 
 from an injury. 
 
 The underwriter shall, moreover, under no circumstances be liable 
 
 for the contributions, sacrifices, and expenses coming under Art. 838, 
 
 heads 1-4. 
 
 Art. 855. If the contract has been concluded with the clause ' free 
 of damage except in ca.se of stranding,' the underwriter is not liable to 
 make good a loss arising out of a damage, no matter whether such loss 
 consists in a diminution of value, or in a total or partial loss, and more 
 particularly in the arrival of the goods at the port of destination in an 
 utterly spoiled and altered state, or from their having been sold during 
 the voyage on account of damage and innnediate deterioration, unless 
 the vessel or the lighter in which the insured goods are laden has been 
 stranded. The following perils of the sea are considered equivalent to 
 a stranding, viz. : capsizing, sinking, breaking up of the hull, shipwreck, 
 and every other casualty of the sea by which the vessel or lighter has 
 become incapable of repair. 
 
 If a stranding or some other casualty of the sea considered as 
 equivalent thereto has occurred, the underwriter is liable for every loss 
 exceeding three per cent. (Art. 849) arising out of such casualty, but not 
 for any other injury. Until the contrary be proved, any injury wdiich 
 might possibly have been caused by the accident which has befallen 
 the vessel shall be considered to have been actually caused thereby. 
 
 Tor every loss not arising out of a damage the underwriter is liable, 
 no matter whether a stranding or another of the above-mentioned 
 accidents has happened or not, in the same manner as if the contract 
 had been concluded without the clause. Under all circumstances he is 
 liable for contributions, sacrifices, and expenses mentioned in Art. 8.38, 
 heads 1, 2, and 4 ; for those expenses, however, mentioned under head .3 
 of the same Article only when they have been expended in order to 
 avoid a loss which would have fallen upon him. 
 
 A damage proved to have been caused by fire without spontaneous 
 combustion or by extinction of such fire, or by bombai-dment, is not 
 considered as an injury from which the underwriter is exonerated by 
 the above clause. 
 
 Art. 856. If the contract has been concluded with the clause ' free 
 of breakage except in case of stranding,' the enactments of the pre^•ious 
 Article are applicable with the modification that the underwriter is 
 liable for breakage to the same extent as according to the previous 
 Article he is liable for damage.
 
 778 MARITIME LEGISLATION. 
 
 Art. 857. A stranding in the sense of Articles 855 and 85G takes 
 place when the vessel under circumstances not incidental to the ordi- 
 nary na\'igation takes the ground, and either — 
 
 is not got off ; or, 
 
 is got off, but either — 
 
 (1) Only by resorting to extraordinary measures, such as : 
 
 cutting away masts, jettison or discharge of a portion of 
 the cargo, itc, or by the occurrence of a tide unusually 
 high, not, however, solely by the application of ordinary 
 measures, such as heaving on the anclior, backing the 
 sails and the like ; or, 
 
 (2) Only after the vessel has sustained material damage to tlie 
 
 hull from having taken the ground. 
 
 Fifth Division. — Extent of the Damage. 
 
 Art. 858. A total loss of the vessel or the goods occurs when the 
 vessel or the goods have been destroyed, or when they have been with- 
 drawn from the assured without hope of their recovery, particularly 
 when they have been irrecoverably sunk or have been so damaged as 
 to lose their original properties or have been declared good prize. A 
 total loss of the vessel is not nullified by separate portions of the 
 wreck or of the inventory being saved. 
 
 Art. 859. A total loss of the freight occurs when the whole freight 
 has been lost. 
 
 Art. 860. A total loss, with i-egard to imaginaiy profit or to com- 
 mission expected on arrival of the goods at tlu; place of destination, 
 occurs when the goods have not reached their place of destination. 
 
 Art. 861. A total loss with regard to bottomry or average-monies 
 occurs when the objects which have been bottomried, or for which 
 average-monies luive been advanced or expended, have either been 
 subjected to total loss or to other accidents in such a degree that in 
 consequence of injuries, hypothecations, or other liabilities thereby 
 occasioned nothing has been left to cover such monies. 
 
 Art. 862. In case of "total loss the underwriter has to pay the full 
 amount insured, without prejudice, however, to such deductions, if 
 any, as may be allowed according to the stipulations of Art. 804. 
 
 Art. 863. If in case of total loss anything has been saved before the 
 paymcMit of the sum insured, the proceeds of the objects saved shall 
 be deducted therefrom. If the insurance was not elVected for the full 
 value, only a proportionate part of the value saved is to be deducted 
 from the sum insured. 
 
 Oil ]);iynn'iit of tin- sum for iiisur,uic(' (he I'ights of the assured 
 
 iI)pOIi tin- ilisiir-c(| (ilijcct p;i^S to tlir lllldiTW lii r|'.
 
 ArPENDIX. 779 
 
 If a total oi- partial salvage occurs after the payment of the insured 
 sum, the underwriter alone; is entitled to such subsecjuent salvage. 
 If the insurance was not made for the full value, the underwriter is 
 only entitled to a proportionate part of what has been saved. 
 
 Art. 864. If in case of a total loss with regard to imaginary profit 
 (Art. 860) the goods have during the voyage been so advantageously 
 sold that the net proceeds amount to more than the insurable value of 
 the goods, or when more than that value has been paid as indemnity 
 for them, if they have been sacrificed in case of General Average or if 
 they are to be made good in conformity with Articles 612 and 613, 
 the surplus is to be deducted from the insured sum of the imaginary 
 profit. 
 
 Arf. 865. The assured is entitled to demand jiayment in full of 1 he 
 insured sum upon cession of his rights against tlu; insured object in 
 the following cases (abandonment) — 
 
 1. When the vessel is missing ; 
 
 2. When the object of the insurance is in danger from the fact of 
 
 the vessel or goods being laid under embargo or seized by a 
 
 belligerent or otherwise arrested by order of Government, 
 
 or captured by pirates, and not being released within a 
 
 period of six, nine, and twelve months, according as the 
 
 detention, seizure, or capture has occurred — 
 
 («-/) In a European port or on a European sea, or in any port, 
 
 even if not belonging to Europe, of the Mediterranean 
 
 and Black Sea, or of the Sea of Azof ; or, 
 
 (/>) In any other water, but on this side of the Cape of Good 
 
 Hope or of Cape Horn ; or, 
 (c) In any water on the other side of either of these promontories. 
 The periods are to be calculated from that day on which the acci- 
 dent has been notified to the underwriter by the assured (Art. 822). 
 
 Art. 866. A vessel which has commenced a voyage is to be con- 
 sidered as missing when it has not reached the port of destination 
 within the time allowed, and when the interested parties have received 
 no news about it within such period. 
 
 The time allowed as the period of presumptive loss amounts — 
 
 (1) To si.x: months for sailing vessels and four months for steamers, 
 
 when both the port of departure and the port of destination 
 are European ports ; 
 
 (2) To nine months for sailing and steam ships if either the port of 
 
 departure or the port of destination is a non-European port, 
 but situate on this side of the Cape of Good Hope aiid of 
 Cape Horn ; and to twelve months for sailing and st(>am
 
 780 MARITIME LEGISLATIOX. 
 
 vessels if tlie said iion-Eurojjean port is situate on the other 
 side of eitlier of the said promontories ; 
 (3) To six, nine, or twelve months respectively for sailing and 
 steam vessels, when both the ports of sailing and destination 
 are non-European ports, according as the average duration 
 of the voyage may be taken as not more than two, not more 
 than three, or more than three montlis. 
 In doubtful cases the longer term must be allowed. 
 Art. 867. The period of presumptive loss is calculated from the day 
 on -which the vessel commenced her voyage. If, however, since the 
 sailing, intelligence respecting her have been received, the term allowed 
 for presumptive loss shall be calculated from the day to which the last 
 information reaches for such a period as would be granted if the voyage 
 had commenced at the point where according to reliable information 
 the vessel was last seen. 
 
 Art. 868. The declaration of abandonment must have been com- 
 municated to the underwriter within the period allowed for abandon- 
 ment. 
 
 The period allowed for abandonment amounts to six months, when 
 in case of presumptive loss of the vessel (Art. 8G5, No. 1), the port of 
 destination is a European port, and -when in the case of detention, 
 seizure, or capture (Art. 865, No. 2), the same has taken place in a 
 European port or a European sea or in a part of the Mediterranean or 
 Black Sea or of the Sea of Azof, even though not belonging to Eui'ope. 
 In otlier cases the period allowed for abandonment amounts to nine 
 months. The period allowed for abandonment commences at the 
 expiration of the terms mentioned in Articles 865 and 866. 
 
 In case of re-insurance the period allowed for abandonment begins 
 at the expiration of the day on which the re-insured underwriter has 
 received the declaration of abandonment from his assured. 
 
 Art. 869. After the expiration of the period allowed for abandon- 
 ment an abandonment is inadmissible, without prejudice to the rights 
 of the assured to claim compensation for a loss upon other grounds. 
 
 When in case of a presumptive loss of the vessel the period allowed 
 for al)andonment has not been kept, the assured, although entitled to 
 demand payment of a total loss, shall nevertheless, in case the assured 
 object is again bi'ought to light, and it appears thereby that no total 
 loss had occurred, refund the sum insured to the underwriter at his 
 request and on his relinquishing the I'ights acquii'ed under Art. 863 by 
 payment of the sum insured, and shall lie contented to receive instead 
 compensation for a partial loss if any has been sustained. 
 
 Art. 870. In oidcr to l)e valid tin- dfi-laration of aljandounuMit must
 
 APPENDIX. 781 
 
 be Jiiade without reserve or condition, and must extend to tlie wliole 
 object insured, so far as tlie latter at the time the accident happened 
 was exposed to the perils of the sea. 
 
 If, however, the insurance was not concluded for the full value, the 
 assured is only bound to abandon a proportionate part of the insured 
 object. 
 
 The declaration of abandonment is irrevocable. 
 
 Art. 871. The declaration of abandonment is devoid of legal effect, 
 if the circumstances upon which it is based are not confirmed or have 
 ceased to exist at the time the declaration is made. On the other hand, 
 it continues binding upon both parties even when, at a subsequent 
 period, circumstances supervene the earlier occurrence of which would 
 have precluded the i-ight to abandon. 
 
 Art. 872. By the declai-ation of abandonment all rights of the 
 assured with respect to the insured object are transferred to the under- 
 writer. 
 
 The assured is Ijound to secure the underwriter against all real 
 property liens attaching to the abandoned object at the time of the 
 declaration of abandonment, unless the same arise out of perils for 
 which the underwriter would be liable according to tlie contract of 
 insurance. 
 
 If the vessel is abandoned, the underwriter is entitled to tlie net 
 amount of freight of the voyage on which the casualty has occurred, so 
 far as the freight has not been earned until after the declaration of 
 abandonment. This portion of the freight shall be calculated in con- 
 formity with the principles laid down for ascertaining the amount of 
 distance freight. 
 
 If the freight has been separately insured the underwriter thereon 
 shall make good the loss thereby entailed upon the assured. 
 
 Art. 873. Payment of the sum insured can only be demanded when 
 the documents justifying the abandonment have been communicated 
 to the underwriter and a proper interval has been allowed for their 
 examination. If the abandonment takes place on account of presump- 
 tive loss of the vessel the documents to be communicated must include 
 reliable certificates respecting the date of sailing from the port of 
 departure and I'especting its non-arrival at the port of destination 
 during the period allowed for presumptive loss. 
 
 The assured shall at the time of making his declaration of abandon- 
 ment, so far as lies in his power, inform the underwriter whether any 
 and what other insurances have been effected upon the object abandoned, 
 and whether any and what bottomry liabilities and other incumbrances 
 thereon are in existence. If this information has been omitted the
 
 782 MAPJTIMK LEGISLATION. 
 
 underwriter may refuse payment of tlie sum insured until the informa- 
 tion has been sujiplied ; if a term of payment lias been agreed, such 
 term commences only from the time when the supplementary notification 
 has been given. 
 
 Ari. 874. The assured is obliged, even after declaration of abandon- 
 ment, to give attention to the saving of the insured objects and the 
 prevention of increased loss as laid down by Art. 823, and shall continue 
 to do so until the underwriter himself is in a position to take the matter 
 in hand. 
 
 If the assured should receive information that any object looked 
 upon as lost has been again brought to light, he shall immediately 
 acquaint the underwriter thereof, and shall at his request render him 
 every assistance necessary for the recovery or realisation of the object 
 in question. 
 
 The underwriter shall repay the expenses ; he shall also provide the 
 assured at his request with a sufficient advance. 
 
 Art. 875. If the underwriter acknowledges the validity of the 
 abandonment the assured shall supply him at his request and expense 
 with a certified attestation of the transfer of rights effected in conse- 
 quence of the declaration of abandonment according to Art. 872, and 
 shall deliver to him the documents relating to the objects abandoned. 
 
 Art. 876. In case of a partial damage to ship the damage consists 
 of the amount of the expense of repairs to be ascertained in conformity 
 with Articles 711 and 712, so far as the same relate to damages at the 
 risk of the underwriter. 
 
 Art. 877. When the ship has in the manner prescribed in Art. 499 
 been pronounced incapable or unworthy of repair (Art. 444) the assured 
 may, as far as the underwriter is concerned, put the vessel or the wreck 
 up for sale by public auction, and in case of sale the loss consists of the 
 dift'erence between the net proceeds and the insured value. 
 
 The risk of the underwriter terminates only with the sale of the 
 vessel or of the wreck ; the underwriter is also answerable for the due 
 payment of the purchase-money. 
 
 In estimating the value of the ship in a sound state, which is necessary 
 for the purpose of determining whether it is unworthy of repair, its 
 insurable value, no matter whether such value have or have not been 
 estimated, is left altogether out of the question. 
 
 Art. 878. The commencement of such repairs does not preclude the 
 exercise of the rights of the assured under the previous Article, when 
 important damages have only subsequently appeared, which the assured 
 iiad innocently failed to discover. 
 
 When <h<' ;issurcd avails himself suVjsequently of this right, the
 
 xVPPENDlX. 783 
 
 uiulorNvriter .sliiiU pay separately tin- amounts ali'eady expended in re- 
 pairs, so far as in consequence of such repairs a hi<fher price has been 
 realised at the sale of the ship. 
 
 Art. 879. When goods arrive at the port of destination in a damaged 
 state, the percentage of value lost upon the goods shall be ascertained 
 by a comparison of their actual gross ^■alue there in damaged state, 
 with the gross value which they would have had there in their sound 
 state. The same percentage of the insuraljle value is to be taken as 
 the amount of the damage. 
 
 The value of the goods in damaged state is to be ascertained by 
 public sale, or, if the underwriter consents, by valuation. The value 
 which the goods would have had in a sound state is to be ascertained 
 agreeably to the regulations laid down by the first and second paragraphs 
 of Art. G12. 
 
 The underwriter shall also n;ake good the expenses of survey, 
 valuation, and sale. 
 
 Ai't. 880. When a portion of the goods has been lost in the course 
 of the voyage, the damage consists in the same percentage of the 
 insurable value as has been lost of the value of the goods. 
 
 Art. 881. When goods have been sold in the course of the voyage 
 in consequence of a casualty, the damage consists in the difference 
 between the net proceeds of tlie goods after deduction of the freight, 
 duties, and sale expenses, and their insurable value. 
 
 The risk taken by the underwriter terminates only upon the sale of 
 the goods ; the underwriter is also answerable for due payment of the 
 ]iurchase-money. 
 
 The stipulations of Articles 138-842 are not affected by the pro- 
 visions of this Article. 
 
 Art. 882. In case of partial loss of the freight, the loss consists of 
 such portions of the stipulated freight, or, if no freight has been stipu- 
 lated, then of the current freight, as shall have been lost. 
 
 If the freight has beeiv valued, and such valuation is, in conformity 
 with the fourtli paragraph of Art. 797, decisive as to the loss to fall 
 upon the underwriter, then the loss consists of the same percentage of 
 the valuation as has been lost of the stipulated or current freight. 
 
 Art. 883. If, in the case of imaginary profit or of commission ex- 
 pected upon arri\al of the goods, tlie latter arrive in a damaged con- 
 dition, the damage consists in the same percentage of the amount 
 insured upon profit or connuission as the damage to the goods ascer- 
 tained according to Art. 879 bears in proportion to the insurable value 
 of the goods. 
 
 If some portion of the goods have not re;ichcd the port of destina-
 
 784 MARITIME LEGISLATION'. 
 
 tion tlie damage consists of the same percentage of the amount insured 
 upon profit or commission as the value of the goods not arrived in the 
 port of destination is to the value of all tlie goods. 
 
 If in the case of insurance upon imaginary profit the stipulations 
 of Art. 864 apply to the non-arrived portion of the goods, the excess 
 referred to in Art. 801 sliall be deducted from the loss. 
 
 Art. 884. With respect to bottomry and average-monies in case of 
 partial loss the damage consists of the deficiency resulting from the 
 fact that the object bottomried, or upon which average-monies have 
 been advanced or expended, may from subsequent accidents have 
 become insufficient to cover the bottomry or average-monies. 
 
 Art. 885. The underwriter shall pay the full amount of the damage 
 calculated according to Articles 876-884, when the full value has been 
 insured, without prejudice, however, to the provisions of Art. 804 ; if 
 the insurance has not been effected upon the full value, the underwriter 
 shall only make good a proportionate part of such damage as stipulated 
 by Art. 796. 
 
 iSixTii Division. — Payment of Losses. 
 
 Art. 886. In order to be entitled to claim compensation for a loss 
 the assured shall lay before the underwriter a statement of the claim. 
 
 He shall at the same time satisfy the underwriter by means of 
 sufficient vouchers — 
 
 (1) Of his interest. 
 
 (2) That the insured object lias been exposed to perils of the sea. 
 
 (3) Of the casualty which gives rise to the claim. 
 
 (4) Of the damage and its extent. 
 
 Art. 887. Wlien the insurance has been effected by an agent the 
 assured shall further show that the party taking the insurance was 
 authorised by him to do so. When the insurance has been effi^cted 
 without authority (Art. 786) the assured must show the circumstances 
 by which it is proved that the insurance was taken for his account. 
 
 Art. 888. Vouchers which owing, for instance, to the difficulty of pro- 
 curinf^ other evidence are ordinarily accepted in mercantile transactions 
 without objection are generally to be considered as sufficient, such as for 
 proof of interest : 
 
 (1) Tlie ordinary documents of ownership, in case of insurance on 
 ship ; the invoices and bills of lading so far as from their 
 contents is aj)[)arent that the assured is entitled to the 
 ownership of sucli goods in case of insurance on goods. 
 The charter-parties and Ijills of lading in case of insurance 
 on ficii/ht.
 
 Al'l'KNDlX. 785 
 
 (2) The bills of lading as proof of siiipmeut of the goods. 
 
 (3) The extended protest, and the ship's log-book (Articles 488 and 
 
 494), as proof of the casualty ; the sentence of the prize 
 court in case of condemnation ; reliable certificates as to 
 the date of sailing of tlu; vessel fi-oin tlie port of departure, 
 and as to its non-arrival at the port of destination within the 
 period allowed for presumptive loss in case of the latter. 
 
 (4) Documents of survey, valuation, and sale by public auction, 
 
 drawn up conformably to the laws or usages of the place 
 where the damage was verified, also estimates of the expenses 
 drawn up by experts, also the receipted accounts for repairs 
 executed and other receipts for payments made, as proof of 
 the damage and its extent ; with respect to partial damage 
 * to the vessel (Articles 876, 877), however, the documents of 
 survey and valuation, and the estimates of repairs, are only 
 admissible when damages arising from wear and tear, age, 
 decay, or worm are duly specified therein, and when, at the 
 same time, so far as was practicable, such experts luive been 
 employed as have either been permanently and officially ap- 
 pointed or especially selected by the local tribunal, or by the 
 consul of the country, or in default or in the absence of such 
 otHcials, then by some other public authority. 
 Art. 889. Even in case of a lawsuit the documents mentioned in 
 Art. 888 are usually, and so far as special circumstances do not give 
 rise to suspicion, to be received as evidence. 
 
 Art. 890. An agreement, to exonerate the assured from the burden 
 of proving the circumstances mentioned in Art. 886, or any portion 
 thereof, is valid, without prejudice, however, to the right of the under- 
 writer to px'ove the contrary. 
 
 An agreement made at the time of the insurance of goods, that jjro- 
 duction of the bill of lading should be dispensed with, does away only 
 with the necessity of proving the shipment. 
 
 Art. 891. When an insurance is effected by an agent, the party 
 taking the insurance may, without production of a power of attorney 
 from the assured, make use of the powers reserved to the assured by 
 the contract of insurance, and may receive and enforce payment of 
 the sums insured. Hliould, howevei-, a policy have been issued, this rule 
 applies only when the party taking the insurance produces the 
 same. 
 
 If the insurance has been t:lk^n without instructions, the party 
 taking the insurance requires tlie consent of the assured in order to 
 receive or enforce payment of the sums insured.
 
 785 MARITIME LEGISLATIOX. 
 
 Art. 892. When a policy lias been issued the underwriter shall pay 
 tli3 suras insured to the assured upon production of the policy. 
 
 Art 893. The party taking the insurance is not bound to deliver the 
 policy to the assured or to his creditors or to his assignees in bankruptcy 
 before his claims against the assured, with reference to the insured 
 obiect have been satisfied. In case of a loss the party taking the in- 
 surance may pay himself for such claims out of the amounts due from 
 t!i8 underwriter, and retain the amounts out of the insured sums when 
 received in preference to the assured and his creditoi's. 
 
 Art. 894. The underwriter makes himself responsible to the party 
 takin'i' the insurance, if he, while the latter is still in possession of the 
 policy, prejudices his rights under Art. 893, eitlier by payments to the 
 assured or his creditors, or his assignees in bankruptcy, or by agree- 
 ments entered into with such parties. 
 
 The pi'ovisions of the common law determine how far the under- 
 writer makes himself responsible to third parties who have acquired an 
 interest in the policy, by entering into agreements respecting their in- 
 tei'ests or by paying over sums insured without requiring cession of the 
 policy, or without making the necessary endorsement thereon. 
 
 Art. 895. If the underwriter is called upon to pay the sums insured, 
 he may not, in case of an insurance effected as agent, set off claims 
 which he may have against the party taking the insurance. 
 
 Art. 89G, The assured may cede to a third party not only claims for 
 compensation due to him on account of an accident which has already 
 occurred but also possible claims to arise out of future accidents. If a 
 policy has been issued to order, the same may be transferred by endorse- 
 ment, the provisions of the Articles 301, 303, 305 being applicable as 
 concerns such endorsement. In case of insurance as agent the endorse- 
 ment of the party taking the insurance is sufficient for the validity of 
 the first transfer. 
 
 Art. 897. When after the expiration of two months from the notifi- 
 cation of the casualty the statement of claim (Art. 886) has, without 
 fault of the assured, not as yet been produced, but the lowest amount 
 due by the underwriter has been approximately ascertained, the latter 
 shall pay this amount as on account of his liability, not however until 
 expiration of the period stipulated for the payment of the sum insured. 
 If the period allowed for payment is to commence from the time when 
 the statement of claim has been laid before the undei-writer, such period 
 shall in the sense of this Article be calculated from the time wlien tlie 
 underwriter has received the pro formd estimate. 
 
 j\rt. 808. The underwriter shall make payment in advance of — 
 (1) Twc-thii-dsof the aiimunt (•'aimablf from him in cases of average
 
 APPI'NDIX. 787 
 
 on account of his liability to be subsequently ascertained, 
 towards the expenses of salving, preservation or rehabilitation 
 of tlie insured object ; 
 (2) In case of capture of the ship or goods the full amount due from 
 him towards the costs of the suit of reclamation, so far as 
 the same may be rendered necessary. 
 
 Seventh Division. — C.vNCELLiNf: the Insurance and Repayment 
 OF THE Premium. 
 
 Art. 899. When the adventure to which the insurance relates is 
 wholly or partially abandoned by the assured, or when v/ithout his 
 agency the insured object wliolly or in part is not exposed to the risk 
 which the underwriter was to bear, either the whole or a proportionate 
 part of the prem.ium may be reclaimed or withheld, less a suitable bonus 
 due to the underwriter (ristorno). 
 
 When no specified amount is agreed upon or usual at the place where 
 the insurance is effected, the bonus (allovv^ance for ristorno) consists of 
 one-half per cenf,. of the entire sum insured or of tlie corresponding 
 portion thereof ; if, however, the premium does not amount to one per 
 cent, of the sum insured, then of one-half of the whole premium or of 
 the proportionate part thereof. 
 
 Art. 900. If the insurance is invalid on account of want of in- 
 surable interest (Art. 782), or on account of over-insurance (Art. 790), 
 or on account of double insurance (Art. 792), the premium may here 
 also be reclaimed or withheld, with the exception of the bonus stipulated 
 in Art. 899, provided that the party taking the insurance has acted 
 bond fide in effecting the same, and in case of an insurance as agent 
 the assured has also acted bond fide at the time of giving the order. 
 
 Art. 901. Tlie rules laid down Vjy Articles 899 and 900 apply even 
 if the iusuraiice contract is void as against the underwriter on ac- 
 count of violation of the rules foi' giving information, or for other 
 reasons, even if the underwriter notv.-ithstanding such invalidity would 
 be entitled to the full premium. 
 
 Art. 902. A I'eturn of premium does not take place if tlie under- 
 writer's risk has already attached. 
 
 Art. 903. If the underwriter has become insolvent, the assured may 
 at his option either withdraw from the contract and reclaim or withhold 
 the whole premium, or may take a new insurance at the expense of the 
 underwriter according to Art. 793. He, however, may not exercise 
 this option, if, previous to his withdrawing from the contract or takinor 
 a new insurance, sufficient security is given to him for the fulfilment 
 of the liabilities of the underwriter. 
 
 3 R 2
 
 788 MARITIME LEGISLATION. 
 
 Art. 904. If the insured object changes hands, the riglits appertain- 
 ino- to the assured by virtue of the insurance contract, as regards possible 
 future accidents may be transferred to the new owner in such a manner 
 that the new owner is entitled to claim against the underwriter to the 
 same extent as if no transfer had taken place and as if the assured 
 himself enforced the claims. 
 
 The underwriter takes no responsibility for perils which would not 
 have arisen if no transfer had taken place. 
 
 He may not only make use of the same pleas and counter-claims to 
 which he would be entitled against the new owner direct, but also of 
 those which he might have been entitled to make use of against the 
 assured ; not, however, of such as do not arise out of the contract of 
 insurance, except so far as they have been in existence previous to tlie 
 notification of the transfer. 
 
 The legal effects of a transfer by endorsement of a policy made out 
 to order ai-e not affected by the foregoing enactment. 
 
 Art. 905. The provisions of Art. 904 are also applicable to insur- 
 ances upon a share in a vessel. 
 
 If the vessel itself is insured, the same apply only when the vessel 
 has changed owners in the course of the voyage. The commencement 
 and termination of the voyage are determined according to Art. 
 827. When the vessel has been insured for time or for several 
 voyages (Art. 760), the insurance only remains in force, in case of a 
 change of ownership during a voyage, up to the discharge of the vessel 
 in the next port of destination (Art. 827). 
 
 TWELFTH PART. 
 
 Statntory Limitations. 
 
 Art. 90G. The claims enumerated in Art. 757 are only in force for 
 one ypar. Tlie limit extends, however, to two years — 
 
 (1) For claims of the crew arising out of contracts of service or 
 
 wages when the discharge has taken place on the other side 
 of the Cape of Good Hope or of Cape Horn ; 
 
 (2) For claims for compensation arising out of the collisions of 
 
 vessels. 
 
 y1/7. 1)(j7. 'I'lie li;.iitiiii()ii imposed by the previous Article extends 
 also to personal claims of tin; creditor against llie sliipownta- or a person 
 belonging tf) the crew. 
 
 Art. 908. The period of liniit.it inn is reckoned —
 
 APrENDIX. 789 
 
 (1) With respect to claims of the crew (Art. 757, No. i), from the 
 
 expiration of the day on wliicli the contracts of service or 
 wages come to an end, and, if the institution of legal pro- 
 ceedings is sooner possible and admissil>le, from the expiration 
 of the day on whicli such possibility and admissibility takes 
 place ; the right, however, to demand payments in advance 
 or on account docs not affect tlie commencement of the period 
 of limitation ; 
 
 (2) With respect to claims for injui-y to or for undue delay in the de- 
 
 livery of goods and personal effects (Art. 757, Nos. 8 and 10) 
 and for contributions to General Average (Art. 757, No. 6), 
 from the expiration of the day on which the delivery has 
 taken place ; with respect to claims for non-delivery of goods, 
 from the expiration of the day on which the vessel reaches the 
 port where the delivery should have taken place, and, if such 
 port is not reached, from the expiration of the day on which 
 the party interested has first had notice of that fact as 
 well as of the damage ; 
 
 (3) With respect to claims caused by the default of a member of 
 
 the crew (Art. 757, No. 10) not coming under head 2 of this 
 Article from the expiration of the day on which the party 
 interested receive notice of the damage ; with respect, how- 
 ever, to claims for compensation arising out of the collision 
 of vessels, from the expiration of the day on which the col- 
 lision occurred ; 
 
 (4) With respect to all other claims, from the expiration of the day 
 
 on which the claim becomes due. 
 
 Art. 909. One year is also the period of limitation for the claims 
 for which the goods are responsible with respect to the freight 
 and all extra charges connected therewith, to demurrage, to outlay for 
 duties and other expenses, to bottomry monies, contributions to General 
 Average, salvage and assistance expenses, as also for all personal claims 
 against parties interested in the cargo and for claims on account of 
 passage-monies. 
 
 The period of limitation commences, as regards contributions to 
 General Average, from the expiration of the day on which the con- 
 tributory goods have been delivered, with respect to other claims from 
 the expiration of the day on which they have become due. 
 
 Art. 910. Claims of the underwriter and of the assured arising out 
 of the contract of insurance are not enforceable after five years. 
 
 The period of limitation commences from the expiration of the last 
 day of the year in which the insured voyage has terminated, and, iu
 
 700 MAKITI.ME LEGISLATION. 
 
 case of insurance for time, from the expiration of tlie clay on wliich the 
 insured pei-iod terminates. In case of presumptive loss of the vessel, 
 it commences from the termination of the day on which the period 
 allowed for receipt of news comes to an end. 
 
 Art. 911. A claim which, according to Articles 906-910, has lapsed 
 cannot be enforced as a counter-claim or otherwise by way of set-oft', if 
 it had already lapsed at the time that such other claim originated. 
 
 I. 
 
 BEGULATION FOB SEAMEN OF DECEMBER 27, 1872. 
 
 "We, William, by the grace of God, Gei'man Emperor, King of Prussia, 
 etc., tfec, order in the name of the German Empire, with the consent 
 of the Confederate Council and of the Parliament, as follows : — 
 
 FIRST SECTION. 
 Introductory Regulations. 
 
 § 1. The provisions of this law apply to all merchant vessels (law 
 of October 25, 1867) which have the right to carry the national flag. 
 
 § 2. Master in the sense of this law is the commander of the vessel 
 (ship-captain), and in default, or if he is prevented, his substitute. 
 
 § 3. The 'crew ' im-ludes all ofhcers of the ship except the master; 
 and in like manner the word 'seaman' includes every ship's officer 
 except the master. 
 
 Persons not belonging to the crew, but appointed on board a vessel 
 as engineer, steward, or in any other capacity, shall be subject to the 
 same rights and duties as have been enacted in this law with respect 
 to the crew, there being no difference whether they have been engaged 
 by the master or by tlie owner. 
 
 § 4. Seamen's OfPces, within the limits of the Confederation, are 
 the authorities for engaging the crews in the several confederate states 
 and tlie consulates of the German Empire abroad. 
 
 Tlie establishment of the authorities for engaging the crews, or so- 
 called shipping offices, witliin tlu; limits of the Confederation, belong to 
 the function of the tei-ritorial government in accordance with their 
 respective laws. The business conduct thereof is subject to the super- 
 vision of \\\c Em[)ire.
 
 .\l'Pi;NItI\. 701 
 
 SECOND SECTION. 
 Sea Voyay.'i Books aiul Arficks 
 
 § 5. No one witliiii the liinits of the Confederation may take ser- 
 vice as a seaman, unless ho has previously proved his name and age 
 before a )Seamen's OHice and received from it a sea voyage book. 
 
 If the seaman is a German, he must not be alhnved to take service 
 on board ship Ijefoi-e he is fourteen years of age ; he must also prove 
 his military relations, and if he is still subject to parental control or a 
 minor, the consent of the father or guardian to take service on board 
 ship. 
 
 A copy of the ' Regulation for Seamen,' and the law resi:)ecting the 
 duty of German merchant vessels to take seamen in distress on board, 
 must be handed to the seaman together with the sea voyage book. 
 
 § 6. The parental consent, or that of the guardian, unless limited, 
 is considered as given once and for evei*. 
 
 In vii'tue of it the minor will be treated as of age in so far as wages 
 agreements are concerned, as well as regai-ding the rights and duties 
 and legal proceedings connected therewith. 
 
 § 7. Whoever has received a sea voyage book must, in order to 
 obtain a new sea voyage book, produce the old one or prove its loss. 
 That this has been done will be certified in the new sea voyage book 
 by the Seamen's Olfice. 
 
 If the loss be proved, a statement from the Seamen's Office will bo 
 added to this certificate respecting the former rank and service details, 
 as well as respecting the length of service, in so far as the seaman can 
 sufficiently prove the same. 
 
 § 8. Whoever, according to the contents of the sea voyage book, 
 lias been engaged must not be allowed to enter a new engagement 
 before he can prove the termination of the previous service by the 
 proper entry in the sea voyage book (§§ 20, 22). If in the opinion of 
 the Seamen's Office such an entry cannot be adduced, but the termina- 
 tion of the service can otherwise be credibly proved, a statement 
 entered into the sea voyage book by the Seamen's Office is to be of the 
 same effect. 
 
 § 9. The arrangement and price of the sea voyage book are fixed by 
 the Confederate Council. The expedition thereof is free of charge and 
 stamp duty. 
 
 The sea voyage book must state the military relations (§ .5) of the 
 holder. 
 
 § 10. The master has to regulate the engagement (^^hij.ping, dis-
 
 792 MAPJTIME LECilSI.ATIOX. 
 
 charging) of the crew according to the pi'ovisions of the following 
 articles (§§ 11 to 22), 
 
 The seaman must be present at the engagement unless an unavoid- 
 able obstacle prevents him. 
 
 § 11. The engagement consists in tlie announcement of the wages 
 agreement concluded with the seaman before a Seamen's Office. It 
 must take place for vessels lying within the limits of the Confederation 
 under production of the sea voyage books before the commencement or 
 continuation of the voyage, and for other vessels as soon as a Seamen's 
 Office be reached. 
 
 § 12. The engagement proceedings will be drawn up by the 
 Seamen's Office as the ship's articles. If the persons belonging to the 
 crew of a vessel are not engaged at the same time by one act, tlie 
 fui'ther expedition will be on the basis of the first proceedings. 
 
 The ship's articles must contain : Name and nationality of tlie 
 vessel, name and domicile of the master, name, domicile and rank of 
 each seaman, and the conditions of the wages agreement, including any 
 special arrangements. 
 
 In the ship's articles must be more especially stated what is due to 
 the seaman for food and drink per day. Otherwise the arrangement of 
 the articles will be fixed by the Confederation, 
 
 § 13. If a seaman has been engaged after the ship's articles have 
 been drawn up, the Seamen's Office has to enter such engagement on 
 them. 
 
 § 14. At eveiy engagement effected within the limits of the Con- 
 federation, tlie Seamen's Office enters a statement thereof and the date 
 of commencement of the service into the sea voyage book of each 
 seaman, which at the same time serves as a departure or sea passport. 
 Beyond the limits of the Confederation such entry is only made when 
 the sea voyage book is produced for this purpose. 
 
 The sea voyage book has for the duration of the sei'vice to be 
 taken in charge by the master. 
 
 § 1 .5. If a seaman who has been engaged is, owing to an unavoid 
 al>le occurrence, prevented from entering the service, he is obliged to 
 render as soon as possible an account thereof to the master and to the 
 Seamen's Office before which he was engagedi 
 
 § 16. The discharge consists in tlie announcement of the termina- 
 tion of tlie services on behalf of the master and such of the crew as are 
 to be discharged. It must take place as soon as the service is ter- 
 minated and, unless otherwise agreed, before tlie Seamen's Office of 
 the port where the vessel lies, and after loss of the vessel before the 
 first Seamen's rifliif w lii.li can 1»p i-caclied.
 
 APPENDIX. 7U:3 
 
 § 17. Before the discliarge takes place the master must certify in 
 tlie sea voyage book of the seaman about to be discharged tlie rank 
 wliich he occupied, his otlier duty-relations and the time of his service, 
 likewise, if particularly re(iuestod, a character as to ability. The 
 latter must not be entered in the sea voyage book, 
 
 § 18. Tlie signatures of tlie master to tliese entries and to the 
 certificate of character (§ 17) are to be attested free of charge and 
 stamp duty by the Seamen's Office before which tlic discharge takes 
 place. 
 
 § 19. Should the master refuse to give a certificate of character 
 (§ 17), or should it contain accusations the correctness of which the 
 seaman disputes, the Seamen's Office has to investigate tlie matter at 
 tlie request of the latter, and to certify to the seaman the result of 
 such investigation. 
 
 § 20. Tlie discharge of a seaman has, by the Seamen's Office, to be 
 noted in the sea voyage book and on the ship's articles, 
 
 § 21. After the expiration of the voyage or of the time to wliicli the 
 ship's articles and the therein contained engagement-proceedings refer, 
 the same have to be delivered to the Seamen's Office before which the 
 discharge took place. 
 
 The latter forwards the same to the Seamen's Office of the port of 
 registry. 
 
 § 22. Should any changes take place with the complement of the 
 crew at a time when circumstances do not permit of such engagement 
 (shipping, discharging) (§ 10) to be carried out in accordance with the 
 above regulations, the master is obliged, as soon as he can reach a 
 Seamen's Office, to complete the engagement there, giving the reasons 
 which prevented this from being previously done, or, in case even this 
 subsequent act is no longer possible, to report the fact. 
 
 An entry as to such report will be made by the Seamen's Office on 
 the ship's articles as well as in the sea voyage book of the seamen 
 concerned. 
 
 § 23. The costs of such engaging and discharging, inclusive of the 
 expedition of the ship's articles, have to be paid by the shipowner. 
 
 The stipulation of the costs to be fixed in equal amounts for all 
 Seamen's Offices within the limits of the Confederation is reserved for 
 the Confederate Courcil. 
 
 Until this has taken place the territorial goAernmcnts shall stipulate 
 the amount of the costs to be charered.
 
 794: .MAIJTIME LEGISI.ATIOX. 
 
 THIRD SECTION. 
 Contract. 
 
 § 24. The validity of the wages agreement does not depend upon 
 being in writing. 
 
 § 25. If on concluding the wages agreement no arrangement as to 
 the amount of the wages is expressly arrived at, and any doubt arises 
 as to its amount, those wages will be considered as agreed upon which 
 the Seamen's Office of the port where the seaman was engaged declares 
 as usual at the time of the engagement. 
 
 § 26. If a seaman engages himself for any period, for which he is 
 bound by a previous agreement, then the first concluded engagement 
 has in preference the claim to be fulfilled. 
 
 If, however, an official engagement based on the later agreement 
 has been effected, this has the preference should wo official engagement 
 for the first agreement have taken place. 
 
 § 27. When a seaman has been engaged after the ship's articles 
 have been executed, the stipulations made therein with the other 
 seamen shall be applied to him in default of any arrangement to the 
 contrary ; he shall more especially only be entitled to the same Avages, 
 which, according to the articles, are due to the other seamen of his 
 rank. 
 
 § 28. The obligation of tlie seaman to go on board with his effects 
 and to enter upon his duties commences, unless any other agreement 
 has been made, from the time of his engagement. 
 
 If the seaman delays to enter upon his duties for more than twenty- 
 four hours, the master is authorised to witlidraw from the engagement. 
 The demands for any additional expenses to provide a substitute and 
 for other los.ses arising out of the delay are not affected thereby. 
 
 § 29. The seaman who after the engagement avoids entering upon 
 or continuing his duties, can be forced by tlie master, through the Sea- 
 men's Office, to its fulfilment. 
 
 The costs arising tlierefrom have to be made good by the seaman. 
 
 § 30. The seaman is obliged to obey unhesitatingly the orders of 
 the master with regard to the service of the ship, and to perform at all 
 times every work entrusted to him witli regard to ship and to cargo. 
 
 He has to perform these duties not only on board of the vessel and 
 in its boats but in ligliters and ashore, as well under ordinary circum- 
 stances as wlien under average. 
 
 ^V'ilhl)ul pcrinissioM of the inastor lie is not al!(nved to h'ave
 
 APPENDIX. 7\)r, 
 
 the vessel until he is discharged. Sliould he have received such per- 
 mission, he must return at the time fixed, but should no time have been 
 fixed, before eight o'clock in the evening. 
 
 § 31. Should the vessel be in port, the seaman may only under press- 
 ing circumstances be obliged to work more than ten hours per day. 
 
 § 32. Should any danger of the seas arise, especially if .shipwreck 
 be threatened, or .should any violence and attack against ship or cargo be 
 contemplated, the seaman nmst unhesitatingly render all assistance 
 ordered for the preserA^ition of ship and cargo, and he dare not, 
 without permission of the master, leave the vessel so long as the 
 master himself remains on board. 
 
 He is at the time of shipwi-eck, bound to render every assistance 
 necessary for the safety of persons and their effects, as well as to take 
 care and secure any parts belonging to the ship, its gear and the cargo, 
 and all this in accordance with the master's orders, and to assist during 
 any salvage operations on continuation of his wages and maintenance. 
 
 § 33. The seaman, if so required, is bound to assist at the extending 
 of the protest, and to confirm his depositions by oath. He has to fulfil 
 this obligation on payment of travelling expenses and compensation 
 for loss of time, even if the wages agreement has been terminated in 
 consequence of the loss of the vessel (§ .56). 
 
 § 34. If after the voyage has been commenced it is found that any 
 seaman, with the exception of the mate, is incapable for the service for 
 which he was engaged, the master is entitled to reduce his rank and to 
 lower his wages in j^roportion. 
 
 If the master makes use of this power, he must, as soon as possible 
 thereafter, inform the party concerned of such resolution, and to enter 
 in the ship's log that this has been done, and when ; before such 
 intimation and entry have been given and made, the lowering of the 
 wages does not take efiect. 
 
 § 35. In default of any other arrangement the wages shall be paid 
 from the time of the engagement. 
 
 § 36. In default of any other agreement the wages shall not be paid 
 to the seaman until after the termination of the voyage or on his dis- 
 charge, if such should previously take place. Should the vessel wholly 
 or in part discharge the cargo in the first port of an intermediary voyage, 
 the seaman may, if six months have elapsed since his engagement, 
 demand one half of the wages due to him. In like manner the seaman 
 is, after the expiration of a further six months from such date, entitled 
 to the payment of half of the wages earned since. 
 
 § 37. In default of any agreement the usage of the port where 
 the seaman is engaged determines if, and to what extent, before the
 
 790 MARITIME LEGISLATION. 
 
 commencement of the voyage advances on account of wages shall be 
 made or any earnest-monies are to be paid. 
 
 § 38. AU payments to seamen must, according to their choice, be 
 made, unless otherwise agreed, either in cash or by sight draft on the 
 owner. 
 
 § 39. Before commencement of the voyage the master must open an 
 account-book, in whicli all advances and payments on account of wages, 
 as well as such earnest-monies as have been paid, ai'e to be entered. 
 In this account-book the seaman must give a receipt for each payment. 
 The master is likewise obliged to give to each seaman who demands it 
 a special wages book and to enter equally therein any payment made 
 on account of the wages of the holder. 
 
 § 40. If the number of the crew decreases during the voyage and 
 is not made up again, the amount of the wages thus saved is, unless 
 otherwise agreed, to be divided amongst the remaining seamen in pro- 
 portion to their respective wages. No claim to division exists, however, 
 if the decrease of the crew be caused by desertion and the effects of the 
 deserted seaman did not remain on board. 
 
 If the number of the crew during the voyage be reduced by more 
 than one-sixth, the master, at the request of the remainder of the crew, 
 is obliged, should circumstances permit, to make up the deficiency. 
 
 § 41. In all cases in which a vessel remains more than two years 
 abroad, and should no other ari-angement have been made, such seamen 
 as have been two years in the service are entitled to an increase of 
 wages if these are agreed for time. 
 
 This increase is to be determined as follows : — 
 
 (1) The ship's boy x-eceives at the beginning of the third year the 
 
 wages of an ordinary seaman as fixed by the ship's articles 
 or the average amount shown by them, and at the beginning 
 of the fourth year the wages of an able seaman as fixed by 
 the ship's articles. 
 
 (2) The ordinary seaman receives at the beginning of the third year 
 
 the wages of an able seaman as fixed by the ship's articles, 
 and at the beginning of the fourth year one-fifth more. 
 
 (3) The remainder of the crew receive at the beginning of the third 
 
 year one-fifth more and at the begininng of the fourth year 
 a further one-fifth of the original amount of wages stated 
 in the ship's articles. In the case stih No. 2 the ordinary 
 seaman enters at the beginning of the third year into the 
 rank of an able seaman. 
 § 42. The d(!mands of the master and of all persons belonging to 
 llif crow which arise out of any service and wages agreemenfs, and wlio
 
 APPENDIX. 7! '7 
 
 liave been on board of a vessel wliich, according to Articles 86G and 8o7 
 of the German General Mercantile Law, is to be considered as missing, 
 are due at tlie expiration of the time allowed for the calculation of tl e 
 presumptive loss. 
 
 " The termination of such service relations are to be reckoned from 
 half a month after the day on which the last news from the vessel was 
 received. 
 
 The amount of the demands has to Vje handed to the Seamen's 
 Office of the port of registry, which lias to arrange the payment to 
 those entitled to receive them. 
 
 § 43, The seaman is entitled to nourishment for account of the 
 vessel from the time the service begins. He is only allowed to use the 
 food and drink served out to him for his own requirements, and must 
 not dispose, waste, or do away with it in any manner whatever. 
 
 § 44. The crew is entitled to a protected and sufficiently ventilated 
 space on board the vessel intended solely for them and their efi'ects, and 
 corresponding to their number and the size of the vessel. 
 
 If the seaman in consequence of a casualty or from other reasons 
 cannot obtain shelter on board the vessel, other suitable provision is 
 to be provided for him. 
 
 § 45. The minimum of food and drhik to be served out to the sea- 
 man per day (§ 4.3), the size and fitting up of the space set apart for the 
 crew, as well as the minimum of medicines to be carried, are, in case 
 of doubt, to be determined by the law of the port of registry. 
 
 The issue of more particular stipulations belongs to the Governments 
 of the different countries. 
 
 § 46. The master is, in case of an unusually long duration of the 
 voyage, or in case any casualties should have occurred, entitled to 
 reduce the rations or to make a change respecting the choice of food 
 and di'ink. 
 
 He must enter in the log-book when, why, and in what way the 
 reduction or change took place. 
 
 If this is omitted, or if the arrangements made by the master prove 
 unjustifiable and caused by his fault, the seaman is entitled to such an 
 allowance as is equivalent to the privations suffered. The Seamen's 
 Office before whom the discharge takes place shall decide about such 
 demand under reservation of recourse to law. 
 
 § 47. If an officer of a ship, or not less than three seamen, complain 
 before a Seamen's Office that the vessel for which they were engaged is 
 unseaworthy, or that the pro\isions which are on board for the wants of 
 tlie crew as food and drink are insufficient or spoiled, the Seamen's 
 Office must cause the vessel or the provisions to be examined and to
 
 708 MAIIITI.ME LEGISLATION. 
 
 enter the result in the log-book. It must also take care, in case the 
 complaint is proved to be well founded, so provide the necessary remedy. 
 § 48. If a seaman after having entered the service falls ill or is 
 wounded, the owner shall defray the expenses of his care and curing. 
 
 (1) If the seaman, on account of the disease or the wound, did not 
 
 commence the voyage up to the expiration of three months 
 from the time he became ill or was wounded. 
 
 (2) If he enters upon the voyage and returns in the vessel to a German 
 
 port up to the ex2:)iration of three months from the return of 
 the ship. 
 
 (3) If he enters upon the voyage and returns in the vessel, but if such 
 
 voyage does not terminate in a German port, then up to the 
 expiration of six months from the return of the ship. 
 
 (4) If he had to be left behind ashore during the voyage up to the 
 
 expiration of six months from the time that the vessel has 
 continued such voyage. 
 Should the vessel not return to the port from which it started, the 
 seaman is likewise entitled to be returned free of expenses to that port 
 (§§ 65, 66) or, at the option of the master, to a corresponding compen- 
 sation. 
 
 § 49. The sick or wounded seaman shall receive his wages — 
 If he does not commence the voyage, up to the time of discontinu- 
 ing his duties 
 If he enters upon the voyage and returns in the vessel up to the 
 
 termination of the return voyage. 
 If he had to be left behind ashore during tlie voyage, up to the day 
 
 on which he leaves the vessel. 
 If the seaman has been injured in defence of the vessel, he is besides 
 entitled to a fair reward, which, eventually, shall be fixed by the 
 judge. 
 § 50. Paragraphs 48 and 49 are not to be applied to seamen whose 
 decease or wounds have been caused by their own unlawful acts or who 
 are suffering from syphilitic diseases. 
 
 § 51. Should the seaman die after having entered the service, the 
 owner shall pay the wages (§ 67) earned up to the day of his death 
 and defray the burial expenses. 
 
 If a seaman is killed while defending the vessel, the owner has to 
 pay in addition a fair reward, which, if necessary, is to be fixed by the 
 judge. 
 
 § 52. Documentary evidence must be produced by the master, 
 attested Ijy two ship's officers or other credible persons, as to the death 
 of any seaman occurring after commencement of the service. 
 
 Tlic document must contain day and hour of thedeatli, the Christian
 
 APPENDIX. 700 
 
 and surname, the place of birth or domicile, and the age of tlie deceased 
 as well as the supposed cause of death. It must be executed by tlie 
 master and the witnesses called in. 
 
 As far as the property of the deceased seaman is on board, the 
 master has to cause an inventory to be made to take care of it, and, if 
 necessary, to sell it. 
 
 The inventory is to be made in tlie presence of two ship's officers or 
 other credible persons. 
 
 The property itself, or the proceeds realised by its sale, as well as any 
 wages due, are to be given to the Seamen's Office at which it first can be 
 done, together with the inventory and certificate of death. 
 
 If the Seamen's Office abroad refuses to take charge of the property 
 from special reasons, the master must deliver it to the first Seamen's 
 Office at which the matter can best be arranged. 
 
 The rules of the laws respecting the keeping of the civil registers 
 are not affijcted by the regulations of this first and third section. 
 
 § 53. If the master dies during the voyage, the mate is bound to 
 j)roduce a document as to the death, and to take care of the property 
 left in accordance with the above regulations (§ 52). 
 
 § 54. The seaman is obliged to remain during the entire voyage, 
 including compound voyages, in the service up to the conclusion of 
 the return voyage, unless otherwise agreed in the contract of his 
 engagement. 
 
 Under return voyage in the sense of above rule must be understood 
 the voyage to the port from which the vessel started. If, however, the 
 vessel comes from a non -European port, or from a port in the Black 
 Sea, or Sea of Azof, and began the voyage at a German port, any of 
 the voyages named hereafter are to be considered as return voyages, 
 provided the master, immediately after arrival, declai'es to the crew 
 the voyage as ended there, viz. : — 
 
 (1) The voyage to any German port. 
 
 (2) The voyage to any non-German port in the North Sea or to a 
 
 Channel port or port in Great Britain. 
 
 (3) If the vessel commenced her voyage from the Baltic, the voyage 
 
 to a non-German port of the Baltic or to a port in the Sound 
 
 or Cattegat. 
 
 If the return voyage does not end in the port from which the 
 
 vessel originally sailed, the seaman is entitled to a free return -passage 
 
 (§§ 65, 6G) to that port and to his wages during the voyage, or, at his 
 
 option, to a corresponding compensation. 
 
 § 55. After the voyage is ended, the seaman cannot demand his 
 dismissal before the cargo is discharged, the Aessel cleaned and properly
 
 800 MAlJlTlMi: Li;(iISI..\T[()X. 
 
 secured in port, or at any other ijlace, and, if lecjuired, the protest 
 
 extended. 
 
 S 56. The engagement terminates when tlie owner loses tlie vessel 
 through an unforeseen accident, more especially — 
 
 If it is lost. 
 
 If it has been condemned as incapable or unworthy of repair 
 (Art. 414 of the German General Mercantile Law) and if, in 
 the latter case, it is, without delay, sold by public auction. 
 
 If it is captured by pirates. 
 
 If it is seized or detained and condemned as good prize. 
 
 In such a case, the seaman shall not only receive the wages he may 
 have earned (§ 67), but also a free return-passage to the port where the 
 vessel sailed from, or, at the master's option, a corresponding compen- 
 sation. 
 
 § 57. The master may, irrespective of the cases provided for in the 
 agreement, discharge the seaman before the expiration of his time of 
 service — 
 
 (1) As long as the voyage has not yet been commenced, if the seaman 
 
 is incapable for the service for which he has been engaged. 
 
 (2) If the seaman commits a gross offence against his duty, more 
 
 especially if he is guilty of repeated disobedience and con- 
 tinued refractory conduct or smuggling. 
 
 (3) If the seaman is guilty of theft, fraud, faithlessness, embezzle- 
 
 ment, concealment of stolen goods^ forgery, or any action 
 punishable, under the penal law by penal servitude. 
 
 (4) If the seaman is infected with syphilitic disease, or if, by doing 
 
 an unlawful act, he lias become invalided or wounded, and 
 tliereby incapacitated to work. 
 (."») If the voyage for wliicli tlie seaman lias been engaged cannot 
 be commenced or continued on account of war, embargo or 
 blockade, or on account of the prohibition of exportation or 
 importation, or on account of any other casualty happening 
 to ship and cargo. 
 The dismissal and reason thereof must be announced to the seaman, 
 and, in cases of Nos. 2, 3, 4, be recorded on the ship's log. 
 
 § 58. In the cases stated under Nos. 1-4 of § 57, the seaman is 
 not entitled to more than the wages earned ; but in case of No. 5 he 
 is when tlie discharge occurs after the commencement of the voyage, 
 not only entitled to the wages earned, but likewise to a free retiirn 
 passage (§§ 65, 66) to the port from which the vessel sailed, or, at the 
 option of the master, to a corresponding compensation. 
 
 § 59. The seatii.-in who is engaged for a voyage and may, for otiicv
 
 APPENDIX. 
 
 801 
 
 reasons than those stated iu § 57, be discharged before tlie termination 
 of the contract, shall, if such dismissal takes place before the commence- 
 ment of the voyage, retain as a compensation tlie earnest-money and 
 advances received in so far as they do not exceed the usual amount. 
 
 When no earnest-money or advances have been paid, lie is entitled 
 to one month's wages as a compensation. 
 
 If the dismissal occurs after the commencement of the voyage he is 
 entitled to a free return-passage (§§ 65, 66) to the port from which the 
 vessel sailed, or, at the master's option, to a corresponding compensation. 
 Besides the wages so earned he shall receive two months' wages if he 
 be dismissed in a German port, or four months' wagos if he be dismissed 
 in a non-European port, but he is never to receive more than he would 
 have been paid in case he had been dismissed at the termination of the 
 voyage. 
 
 § 60. Should, in conformity with the stipulation at the close of the 
 preceding paragraph, the seaman after termination of the voyage be 
 dismissed in a German port, then, in order to ascertain the wages due 
 to him, besides those previously earned, the duration of the voyage of a 
 sailina vessel is to be reckoned as follows : — 
 
 From Ports 
 
 To Ports 
 
 Of the 
 North Sea 
 
 Of the 
 Baltic 
 
 (1) Of the North Sea up to 61° N. L. and of the 
 
 English Channel, as 
 
 (2) Of the Baltic and neighbouring waters, as 
 
 (3) In Europe, outside of the Channel and up to 
 
 the Straits of Gibraltar, inclusive of the 
 Azores, as well as of the North Sea beyond 
 61° N. L. and outside of the North Sea up to 
 the North Cape inclusive, as . 
 
 (4) Of the Mediterranean, Black Sea, and Sea of 
 
 Azof, as 
 
 (5) In Europe, eastwards of the North Cape, as 
 
 (6) Of the East Coast of America, from Quebec to 
 
 Rio de Janeiro inclusive, as . 
 
 (7) Southwards from Eio de Janeiro to Cape Horn, 
 
 inclusive, as ...... . 
 
 (8) Of the West Coast of America, from Cape Horn 
 
 to Panama, inclusive, as .... 
 
 (9) Of the West Coast of Africa, north of the Equator, 
 
 inclusive of the Canary and Cape Verd Is- 
 lands, as ....... 
 
 (10) Southwards from the Equator up to Cape of 
 
 Good Hope, inclusive, as ... . 
 
 (11) On the other side of the Cape of Good Hoi^e, 
 
 this side of Cape Cormorin, inclusive, the 
 Red Sea and Persian Gulf .... 
 
 (12) Not included in the above .... 
 
 Months 
 
 1 
 1* 
 
 1| 
 
 2 
 2 
 
 2 
 
 n 
 
 2 
 
 n 
 
 3.V 
 4" 
 
 Mouths 
 
 1| 
 1 
 
 2 
 
 2 
 2 
 
 2.1 
 
 3 
 
 4 
 
 2| 
 
 n 
 
 4 
 4 
 
 6 F
 
 802 MARITIME LEGISLATION. 
 
 § 6L The seaman is entitled to demand his discharge— 
 
 (1) If the master is guilty of a gross violation of his duties towards 
 
 him more especially of ill-treatment and of withholding food 
 and drink without sufficient cause ; 
 
 (2) If the vessel changes its flag ; 
 
 (3) If, after the termination of the outward voyage, an intermediate 
 
 voyage has been decided upon, or if after termination of an 
 intermediate voyage in case, two or three years having elapsed 
 since the original engagement, the vessel is in a European 
 (§ 70) or in a non-European port. 
 
 Change of owner or master does not entitle the seaman to demand 
 his discharge. 
 
 § 62. In case of § 61, suh 3, the dismissal cannot be demanded — 
 
 (1) If the seaman has engaged himself for a longer time than therein 
 
 stated ; but an engagement for an unlimited period, or with 
 the general condition that after the termination of the out- 
 ward voyage the service is to continue for all voyages that 
 might thereafter be decided upon, shall not be considered 
 as an engagement for such time ; 
 
 (2) If the return voyage lias been ordered. 
 
 § 63. In cases sub 1 and 2 of § 61 the seaman has the same claims 
 as in the case contemplated by § 59 ; in the case suh 3 he is not entitled 
 to receive more than the wages earned (§ 67). 
 
 § 64. The seaman, except the vessel changes its flag, shall not without 
 consent of a Seamen's Office (§ 105) quit the service in a foreign country. 
 
 § 65. Should, according to this law, a claim for a free I'eturn-passage 
 be established, it likewise includes maintenance during the voyage. 
 
 § 66. The claim for a free return-passage is satisfied if the seaman, 
 who is able to work, should, with the consent of the Seamen's Office, be 
 provided with such employment as is equivalent to his former position 
 and with corresponding wages, on board of a German merchant vessel, 
 which goes to the port from which his vessel originally sailed, or to a 
 port near thereto ; in the latter case of course under payment of the 
 corresponding allowance for the further fi'ee return-passage (§ 65) to 
 the port of original departure. 
 
 If the seaman is not a German, a vessel of his own nationality will 
 be considered equivalent to a German vessel. 
 
 § 67. In the cases of §§ 36, 51, 56, 58, 59 ct 63, the wages earned — 
 if they have originally been fixed at a lump sum for the whole voyage 
 shall be calculated in proportion to the services rendered and to the 
 part of the voyage actually performed, taking, of course, into considera- 
 tion the lump sum originally fixed.
 
 APPENDIX. 803 
 
 In order to ascei'tain the wages for a single month, as referred to in 
 §§ 59 and GO, tlie average duration of the voyage, including the time 
 for loading and discharging — of course considering the general con- 
 ration of the vessel — is to be taken as Imsis for such compensation. 
 
 § 68. The owner is answerable for the claims of the master, as well 
 as of the other persons belonging to the crew, which arise out of all 
 conti'acts respecting their services and wages, not only to the extent of 
 ship and freiglit, but personally. 
 
 This provision takes the place of Art. 453 of the German General 
 Mercantile Law. 
 
 § 69. The share in the freight or in tlie profits which may have 
 been accorded to the seaman as reward shall not be considered as wages 
 in the sense of this law. 
 
 § 70. In the cases of §§ 59 and 61, the non-European ports of the 
 Mediteri'anean, the Black Sea and the Sea of Azof are to be considered 
 as equal to European ports. 
 
 § 71. The master shall not, without the consent of the Seamen's 
 Office, leave a seaman behind in a foreign country. Should it be feared 
 that, in case of such leaving behind, a seaman may become destitute, 
 the granting of the necessary permission may be made dependent 
 upon the master providing for a term a proper secui-ity against such an 
 event up to three months. 
 
 The provisions of § 103 are not affected hereby. 
 
 FOURTH SECTION. 
 Disciplinary Regulations. 
 
 § 72. The seaman is subject to the disciplinary power of the 
 master. 
 
 The same begins with the commencement of the service and expires 
 at its termination. 
 
 § 73. The seaman is obliged always to be sober and to observe 
 towards everybody a proper and peaceable behaviour. 
 
 He is bound to treat the master and his other superiors with 
 respect and to obey unhesitatingly their several orders. 
 
 § 74. The seaman must, at the master's request, communicate truly 
 and completely to him what he knows respecting all matters relating to 
 the ship's service. 
 
 § 75. The seaman shall not bring any goods on board without the 
 master's permission ; for any goods shipped by him contrary to this
 
 804 MARITIME LEGISLATION. 
 
 prohibition, whether for himself or for others, he sliall pay the highest 
 freio-ht charo-ed at the loading-port for such voyages and goods at the 
 time of shipment, without prejudice to any further claims for higher 
 damages that may be proved. 
 
 The master is likewise authorised to throw the goods overboard 
 should they be a danger to the ship or the cargo. 
 
 § 76. The provisions of § 75 also apply if the seaman, without the 
 master's permission, brings or causes to be brought on board brandy or 
 other spirituous liquors or more tobacco than he requires for his own 
 use on the intended voyage. Such spirituous liquors and tobacco as are 
 brought on board in contravention of this provision are forfeited to the 
 ship. 
 
 § 77. The measures adopted by the master in conformity with the 
 provisions of §§ 75 and 76 have to be entered into the log-book as soon 
 as this can be done. 
 
 § 78. If the ship is lying in port, the master is authorised, in order 
 to prevent desertions, to take charge of the effects of the seamen until 
 the departure of the vessel. 
 
 § 79. The master is authorised to take all the requisite measures 
 to uphold order and to secure the regularity of the service. For this 
 purpose he may inflict as punishment the customary extra labour or 
 nioderately reduce the food ; the latter, however, at the most for three 
 days. Fines, corporal punishment, or imprisonment he must not inflict 
 as correction. 
 
 The master is authorised to use every means necessary to enforce 
 obedience to his orders in cases of opposition or continued disobedience. 
 He may adopt the proper measures of safety against the parties con- 
 cerned, and, if necessary, put them in irons during the voyage. 
 
 Every seaman, if required, is obliged to render assistance to the 
 master for the purpose of upholding order as well as for prevention or 
 suppression of any refractoriness. 
 
 Abroad the master must apply, in pressing cases, to the commanders 
 of the available men-of-war of the Empire for assistance in order to 
 uphold the necessary discipline. 
 
 § 80. Every measure taken by the master in accordance with the 
 provisions of § 79 has, as soon as this can be done, to be entered in the 
 ship's log, stating likewise the cause thereof.
 
 APPENDIX. 805 
 
 FIFTH SECTION. 
 
 Punishments. 
 
 § 81. A seaman wlio, after signing the ship's articles, absents him- 
 self in order to avoid entering on the service, is lialjle to a fine up to 
 twenty thalers. But proceedings will only be taken if required. 
 
 If a seaman deserts or absents himself in order to avoid continua- 
 tion of the service, he is liable to a fine up to one hundred thalers, or 
 impi-isomiient up to three months. But proceedings will only be taken 
 if required. 
 
 A seaman who deserts or secretes himself with the advance received 
 in order to avoid the service engaged for, is liable to imprisonment up 
 to one year, as threatened by § 298 of the penal code. 
 
 § 82. In the case of the two last provisions of § 81, the seaman 
 loses all claim to the wages earned unless he, for the purpose of con- 
 tinuing the service, before the departure of the vessel, either voluntarily 
 I'etunis or is brought back by force. The wages, and in so far as they 
 are insufficient, his effects, may be taken to cover the demands of the 
 owner arising out of the wages and hire agreement; and, in so far as 
 the wages are not required for these purposes, they will be treated in 
 accordance with § 107. 
 
 § 83. Has the seaman withdrawn from the service in one of the cases 
 of § 61, suh 1 and 3, without permission of the Seamen's Office (§ 64), 
 he is liable to a fine up to the amount of one month's wages. 
 
 § 84, A seaman who is guilty of gross violation of his duties is liable 
 to a fine up to the amount of one month's wages. 
 
 As violation of the duties in tliis sense are to be specially con- 
 sidered — 
 
 Carelessness while on watch ; 
 
 Disobedience against an order of a superior concerning the service ; 
 
 Improper behaviour towards superiors, towards other members of 
 the crew, or towards passengers ; 
 
 Leaving the vessel without permission, or overstaying leave ; 
 
 Taking one's own or strange property from shipboard, or bringing 
 goods or other objects on board without permission; 
 
 Allowing strangers on board, or any craft to come alongside the 
 vessel; 
 
 Drunkenness on duty; 
 
 Waste, unauthorised disposal or putting away of provisions. 
 
 As far as regards ship's officers, the fine may be increased up to the 
 amount of two months' wages.
 
 806 MARITIME LEGISLATION. 
 
 If the wa^es are not agreed to be paid by time, the fine is fixed 
 at an amount wliich, according to the opinion of the Seamen's Office, is 
 equivalent to the monthly hire. But proceedings will only be taken if 
 required. Such requisition is valid if made before the discharge of the 
 
 person. 
 
 § 85. The master, as soon as it can be done, has to enter every 
 violation of duty (§ 84) in the ship's log-book with an exact statement 
 of the facts, and, if practicable, to inform the seaman of the contents 
 of such entry with express reference to the punishment threatened by 
 § 84. Should such information not have been practicable, the reasons 
 thereof are to be recorded in the log-book. If no entry has been made, 
 no proceedings can be taken. 
 
 § 86. A seaman who refuses lawful obedience to the repeated com- 
 mands of the master or another superior is liable to imprisonment up 
 to three months, or to a fine up to one hundred thalers. 
 
 § 87. If two or more persons belonging to the ship's crew refuse 
 lawful obedience to the master or another superior, the parties con- 
 cerned are liable to imprisonment up to one year. The ringleader is 
 liable to be punished with imprisonment up to three years. 
 
 If there are extenuating circumstances, a fine up to two hundred 
 thalers may be adjudged. 
 
 The ringleader to be punished with imprisonment up to two years. 
 
 § 88. A seaman who incites two or more persons belonging to the 
 ship's crew to commit an action which is punisliable according to §§ 87 
 and 91, is Kable to the punishment as a ringleader if the incitement 
 causes the punisliable action or a punishable attempt thereof. 
 
 If the incitement was Avithout result, tlien in case of § 87 a fine up 
 to one liundred thalers, in case of § 91 a fine up to two hundred thalers, 
 or imprisonment up to one year, is to be inflicted. 
 
 § 89. A seaman wlio undertakes to necessitate the master or 
 another superior by force or threat of force, or by refusal of any duty, 
 to take or not to take any action whicli he was in duty bound to per- 
 form, is liable to imprisonment up to two years. If there are extenu- 
 ating circumstances, a fine up to two hundred thalers may be adjudged. 
 
 § 90. The same terms of punishment (§ 89) are to be applied to the 
 .seaman wlio resists tlie master or another superior by force or by threat 
 of force or who assaults the master or another superior. 
 
 § 91. Sliould one of the acts designated by §§ 89, 90, after precon- 
 certion, be mutually committed by several seamen, the punishment 
 may be increased up to the double amount of the threatened maximum. 
 
 The ringleader, as well as those who assault the master or another 
 superior, are liable to penal servitude up to five years or to imprison-
 
 APPENDIX. 807 
 
 nient of equal duration (even police supervision may be added if 
 considered desirable). Should there be extenuating circumstances, an 
 imprisonment of not less than three months' is to be adjudged. 
 
 § 92. A seaman wlio refuses to oljey sucli commands of the master 
 or anotlier superior whicli are i-equired for the prevention or suppres- 
 sion of the actions designated by §§ 89, 90, is liable to punishment as 
 an accessory. 
 
 § 93. A seaman is liable to a fine up to twenty thalers, or impri- 
 sonment up to fourteen days, wlio — 
 
 (1) In order to deceive a Seamen's Office in any proceeding as to 
 
 the granting of a sea voyage book, or any entry therein, or 
 respecting an engagement, distoi'ts or suppresses true facts 
 or insinuates false ones ; 
 
 (2) Omits to be present at the engagement in accordance with § 10 ; 
 
 (3) Or, should he be prevented from entering the service, does not 
 
 present the necessary proofs thereof to the Seamen's Office in 
 accordance with § 15. 
 
 The contents of § 271 of the penal code are not affected by the 
 provision as above, sub 1. 
 
 § 94. Whoever makes a complaint before a Seamen's Office as to the 
 unseaworthiness of the vessel, or the deficiency of provisions, although 
 he is perfectly aware of the untruth of his assertions, and causes thereby 
 a survey to be held, is liable to imprisonment up to three months. 
 
 Whoever makes a complaint before a Seamen's Office as to the 
 unseaworthiness of the vessel, or the deficiency of provisions, although 
 he might with a little care have ascertained the untruth of his asser- 
 tions, and causes thereby a survey to be held, is liable to a fine up to 
 one hundred thalers. 
 
 § 95. The infliction of the punishment threatened by this section, 
 or by that of any other legal penal code, is not excluded in consequence 
 of the guilty party having already been subjected to disciplinary 
 punishment on account of the deed of which he is accused. A disci- 
 plinary punishment suffered may, however, be taken into consideration 
 in the decision of the Seamen's Office (§ 101), as well as in the judgment 
 of any legal tribunal when the punishment is apportioned. 
 
 § 96. The master or other superior who exceeds his disciplinary 
 authority towards a seaman is liable to a fine up to three hundred 
 thalers, or imprisonment up to one year. 
 
 § 97. The master who intentionally neglects to fulfil his obligations 
 to pro^dsion tlie vessel properly, is liable to imprisonment ; and he 
 may, in addition, be adjudged to a fine of five hundred thalers, as well 
 as to the loss of liis civil ri<rhts.
 
 808 MARITIME LEGISLATION. 
 
 If the master has carelessly omitted to fulfil his obligations, he is, 
 should the crew in consequence thereof not have been able to receive 
 proper food, liable to a fine up to two hundred thalers, or imprisonment 
 up to one year. 
 
 § 98. A master who, without the consent of the Seamen's Office 
 (§ 71), leaves a seaman abroad, is liable to a fine up to one hundred 
 thalers, or to imprisonment up to three months. 
 
 § 99. A master is liable to a fine up to fifty thalers, or to imprison- 
 ment, who — 
 
 (1) Does not comply with any of his obligations respecting the 
 
 engagement (shipping and discharging) of the crew (§ 10) ; 
 
 (2) In order to deceive a Seamen's Office respecting the engagement 
 
 (shipping, discharging) of the crew, or respecting an entry 
 into the sea voyage book, distorts or suppresses true facts or 
 insinuates false ones ; 
 
 (3) Does not obtain and produce such evidence as is required in 
 
 cases of death, or neglects his duty to attend to the property 
 left (§§ 52, 53) ; 
 
 (4) Does not cause such entries in the ship's log-book to be made as 
 
 are ordered by §§ 77 and 80 ; 
 
 (5) Does not, in case of misdemeanour or crimes, fulfil his duties in 
 
 accordance with §§ 102 and 103 ; 
 (^6) Refuses to the seaman, without reasonable cause, the oppor- 
 tunity to obtain the decision of the Seamen's Office (§§ 105, 
 106); 
 
 (7) Keeps a seaman without food or drink without proper cause. 
 
 (8) Does not take care that a copy of this law, as well as of the 
 rules respecting the food and lodging of the crew, is accessible in their 
 respective space (§ 108). § 271 of the penal code is not afiected by 
 the regulation sub 2. 
 
 § 100. The designations of §§ 81-91 apply likewise if the punish- 
 able actions have been committed beyond the limits of the Confederation. 
 
 The period of limitation of the prosecution does not commence, in 
 this case, before the day on which the vessel, to which the wrong- 
 doer at the time belonged, first reaches a Seamen's Office. 
 
 § 101. In the cases of §§ 81, art. I., 84, 93, 99, the investigation is 
 made, and decision given, by the Seamen's Office. It has summarily to 
 examine the accused and to ascertain the facts. Witnesses are not to 
 be sworn. At the close of the examination, a decision supported by 
 reasons has to be given, of which the accused is to be informed, verbally 
 should he be present, but by a written communication should he be 
 absent.
 
 APPENDIX. 809 
 
 Should a punishment have been decreed, the duration of the im- 
 prisonment has to be fixed in case the accused is unable to pay any 
 fine. 
 
 The accused may appeal against the decision within ten days of 
 the publication or the receipt thereof. 
 
 The notice of appeal has to be lodged with the Seamen's Office in 
 writing. 
 
 If the Seamen's Office is abroad, the further proceedings have to be 
 taken before tliat court in whose district the port of registry is situated, 
 and in default of sucli, of that German port which the vessel first 
 reaches after the conviction. 
 
 The decision of the Seamen's Office, with respect to the collection 
 of the fine, is provisionally to be executed. 
 
 § 102. Should a seaman commit a misdemeanour or a crime during 
 the time the vessel is at sea or abroad, the master must, in the presence 
 of ship's officers or other trustworthy persons, take a record of every- 
 thing which could be used as evidence of the deed, and have an in- 
 fluence on the punishment. More especially has the nature of the 
 wounds to be correctly described in cases of murder or dangerous bodily 
 injury, and likewise has to be stated how long the injured person lived, 
 whether and what remedies were applied, and what nourishment he 
 took. 
 
 § 103. The master is authorised to search at any time the effects 
 of the crew who are suspected of any punishable deed. The master is 
 further authorised to arrest the seaman guilty of any act which is sub- 
 ject to heavy punishment (§ 57, sub 3). He is obliged to do so if 
 there is any fear of escape. 
 
 The accused has to be surrendered, together with all the proceedings 
 recorded, to that Seamen's Office where it can first be done. Should 
 for special reasons a Seamen's Office abroad decline to take action, the 
 master must cause the surrender to that Seamen's Office where it other- 
 wise can first be done. If in urgent cases a Seamen's Office cannot be 
 timely reached, the master is authorised to surrender the accused to 
 foreign authority for delivery to the competent authority of the port of 
 registry. Notice of this has to be given to the first Seamen's Office 
 where it can be conveniently done.
 
 SIO MAiilTIME LEGISLATFOX. 
 
 SIXTH SECTION. 
 
 General C onditions. 
 
 § 104. Every Seamen's Office is bound to attempt an amicable 
 settlement of all such disputes as have arisen between the master 
 and the seaman and are brought to its notice. The Seamen's Office 
 before which the discharge of a seaman takes place is more especially 
 obliged to make such an attempt at amicable adjustment. 
 
 § 10-5. The seaman shall not sue the master before a foreign 
 tribunal. If he acts contrary to this provision he shall not only answer 
 for the loss occasioned thereby, but he sliall also forfeit the wages 
 earned up to tliat time. 
 
 In cases of need he may apply to the Seamen's Office for a provisional 
 decision. The opportunity for this is not without pressing reasons to 
 be denied by the master. 
 
 Each party has provisionally to submit to this decision of the Sea- 
 men's Office without prejudice to the right of enforcing their respective 
 claims after the termination of the voyage before the competent 
 authority. 
 
 In case of a forced sale of the vessel, the pro^^sions of the first 
 article respecting the enforcement of the demands of the seaman arising 
 out of the hire or wages agreement do not apply. 
 
 § 106. At home any disputes which arise after the engagement 
 between the master and the seaman as to the commencement or con- 
 tinuation of the service have to be adjudicated upon by the Seamen's 
 Office with the reservation of the right of recourse to law. The decision 
 of the Seamen's Office is to be executed provisionally. 
 
 § 107. The fines which are fixed or adjudged, according to the pro- 
 visions of the fifth section, go to the Seamen's Fund, and, in the absence 
 of one, to the poor-box of the port of registry of the vessel, to wliich 
 the accused at the time of committing the punishable action belonged, 
 in case by territorial legislation such fines have not been decreed for 
 other similar objects. 
 
 § 108. A copy of this law, as well as of the rules respecting food 
 and lodging of the crew (§ 45), is to be at any time accessible in the 
 crew's space, for inspection by the seamen. 
 
 § 109. The application of §§ 5 to 23 and of §§ 48 to 52 to smaller 
 vessels (coasters &lc.) may, by decree of the territorial governments, be 
 excluded. 
 
 § 1 10. This law enters into force on March 1, 1873. On the same
 
 APPENDIX. 811 
 
 day the fourtli part of the fiftli hook of tlie General German Mercantile 
 Law is to be considered null and void. 
 
 § 111. Should reference have been made in other laws to provisions 
 which are cancelled by this law, the corresponding provisions of the 
 latter take the place of the first. 
 
 Done at Berlin, Dec. 27, 1872. 
 
 Signed |j,^.^ 
 
 RST V. Bismarck. 
 
 11. 
 
 LAW RESPECTING THE OBLIGATION OF GEBMAN MER- 
 CHANT VESSELS TO TAKE HOME DISTRESSED SEAMEN 
 OF DECEMBER 27, 1872. 
 
 We, William, by the Grace of God, German Emperor, King of 
 Prussia, &c. &c., order in the name of the German Empire, with the 
 consent of the Confederate Council and of the Parliament, as follows: — 
 
 § 1. Every German merchant vessel which is bound from a non- 
 German port to a German port or to a port in the Channel of Great 
 Britain, the Sound, or of the Cattegat, or to a non-German port in the 
 North Sea or the Baltic, is, at the written request of the Seamen's 
 Office, obliged to take against compensation (§ 5), to her port of desti- 
 nation, any German seamen, who find themselves abroad in a condition 
 of distress, for the purpose of being finally forwarded to Germany. 
 
 With respect to foreign seamen who, immediately after having 
 taken service on board of a German merchant vessel, find themselves 
 out of Germany in a condition of distress, a similar obligation devolves 
 upon German merchant vessels which are bound to the native country 
 of such foreign sailors. The master may, by the Seamen's Office, be 
 forced to fulfil such obligations. 
 
 § 2. If several vessels off'er an opportunity for passage, the seamen 
 to be so sent home are to be distributed by the Seamen's Office on board 
 of the several vessels according to their size and the number of their 
 respective crews. 
 
 § 3. The passage can be refused — 
 
 (1) If and in so far as there is no suitable room on board for those 
 
 to be taken; 
 
 (2) If the seaman who is to be taken is ill in bed, or suffering
 
 812 MARITIME LEGISLATION. 
 
 from syphilitic or such other disease as is dangerous to the 
 health or safety of the crew, or who is to be sent home on 
 account of a misdemeanour or crime; 
 ■(3) If and in so far as the number of those to be taken is in excess 
 
 of one-fourth of the crew; 
 (4) If the passage is not demanded at least two days before the time 
 
 the vessel is ready to sail. 
 The decision as to the cause of the refusal rests with the Seamen's 
 Office. 
 
 § 4. During the passage the seaman taken on board receives food 
 and lodging for account of the ship. He is subject to the disciplinary 
 authority of the master. 
 
 § 5, In default of an agreement as to a lower rate, the compensation 
 (§1) amounts for each day on board — 
 
 (1) For a master, mate, surgeon, engineer, assistant engineer or 
 
 paymaster, to one thaler on board of sailing vessels and to 
 one-and-a-half thaler on board of steamers. 
 
 (2) For every other seaman, to half a thaler on board sailing 
 
 vessels and two-thirds of a thaler on board steamers. 
 
 § 6. The payment of the compensation is, at the port of destination, 
 made by the Seamen's Office against delivery of the written request for 
 the passage (§ 1). 
 
 § 7. The person brought home is answerable for the expenses caused 
 by the passage. 
 
 The directions which bind the owner or other persons to the repay- 
 ment of such expenses are not affected by this law. 
 
 § 8. Whoever avoids the fulfilment of an obligation due according 
 to § 1 is liable to a fine up to fifty thalers, or to imprisonment. The 
 provisions contained in § 101 of the Regulations for Seamen apply 
 likewise for the adjudication of the punishment and for all further 
 proceedings as herein mentioned. 
 
 § 9. This law enters into force on March 1, 1873. 
 
 Done at Berlin, Dec. 27, 1872. 
 
 "WiLHELM. 
 
 FuRST V. Bismarck. 
 
 L-S. I Signed
 
 APPENDIX. 813 
 
 ANNEX A. 
 
 LAW RESPECTING THE NATIONALITY OF MERCHANT 
 VESSELS AND THEIR RIGHT TO CARRY THE FLAG OF 
 THE CONFEDERATION OF OCTOBER 25, 18C7. 
 
 We, William, &c. &c. 
 
 § 1. All vessels of the confederate states intended to obtain profit 
 by means of sea voyages have in future to carry as national flag the 
 flag of the Confederation only (Arts. 54 and 55 of the Constitution of 
 the Confederation), 
 
 § 2. Only such merchant vessels are entitled to carry the flag of the 
 Confederation which are the exclusive property of such persons who 
 are subjects of the Confederation (Art. 3 of the Constitution). 
 
 Limited liability companies and companies composed of personally 
 liable shareholders established within the territory of the Confedera- 
 tion in Prussia, likewise such fellowships as are registered in accord- 
 ance with the law of March 27, 1867, in so far as these companies and 
 fellowships have their seat within the territory of the Confederation, 
 and that they are composed of such personally liable shareholders as 
 are subjects of the Confederation, have to be considered as on a level 
 with these persons. 
 
 § 3. Within the states of the Confederation which border on the 
 sea, registers of all merchant vessels entitled to carry the flag of the 
 Confederation have to be kept. The laws of the Confederation designate 
 the authorities who have to keep the registers of shipping. 
 
 § 4. The register of shipping is public, its inspection being per- 
 mitted to everybody during the ordinary office hours. 
 
 § 5. A vessel can only be entered on the register of shipping of 
 that port from which the vessel is intended to be employed in naviga- 
 tion (home port — port of registry). 
 
 § 6. The entry in the register of shipping shall contain — 
 
 ( 1 ) The name and description of the vessel (whether barque, brig, &c. ). 
 
 (2) Its size and the carrying capacity calculated according to the 
 
 size. 
 
 (3) The date and place of building, or, if it had carried the flag of 
 
 a country not belonging to the North German Confederation, 
 the circumstances under which the right to carry the flag of
 
 814 MARITIME LEGISLATION. 
 
 the Confederation was acquired, and besides, if possible, the 
 date and place of building. 
 
 (4) The port of registry. 
 
 (5) The name and particular designation of the owner, or, if there 
 
 are several owners, the names and particular designations of 
 each co-owner, and the amount of the share each holds ; if a 
 commercial association is owner or co-owner, the firm and 
 place where the association is established ; and if the asso- 
 ciation is not a limited liability company, the name and 
 particular designation of each member forming the com- 
 mercial association ; respecting companies composed of 
 personally liable and of limited shareholders, the registra- 
 tion of all such members as are personally liable instead of 
 the registration of all members will be sufficient. 
 
 (6) The legal title according to which the property in the vessel or 
 
 in the several shai-es was acquired. 
 
 (7) The nationality of the owner or of the co-owners. 
 
 (8) Date of registration of the vessel. 
 
 Each vessel must be entered in the register of shipping under a 
 separate regular number. 
 
 § 7. An entry in the register of shipping cannot be made before 
 the right to carry the flag of the Confederation, and all the items re- 
 quired by § 6, have been credibly established. 
 
 § 8. The registration authority has, in virtue of the entry of tlie 
 vessel in the register of shipping, to grant a document (certificate) 
 identical therewith. 
 
 Tlie certificate must further declare that all proofs required by § 7 
 have been supplied, as well as that the vessel has the right to carry the 
 flag of the Confederation. 
 
 § 9. The right of the vessel to carry the flag of the Confederation 
 is attested 1)y the certificate. No sea-pass is required in order to prove 
 particularly this right. 
 
 § 10. The right to carry the flag of the Confederation must not be 
 exercised before the registration of the vessel in the register of shipping 
 nor Ijefore the granting of the certificate. 
 
 § 11. If subsequently to such entry changes occur in tlie matters 
 of fact referred to in § 6, they must be recorded in the ship's register 
 and stated on the certificate. 
 
 In case of the loss of the vessel, or of having forfeited the right to 
 carry the flag of the Confederation, the vessel is to be struck out of tlie 
 register of shipping and the certificate is to be returned, unless it be 
 credibly attested that it cannot bo rctiinicd.
 
 APPENDIX. 815 
 
 § 12. The circumstances which, according to § 11, necessitate an 
 entry or a cancellation in the register of shipping have to be reported 
 and credibly proved by the owner to the registration authority in com- 
 pliance with the provisions of § 11, within six weeks after expiration 
 of the day on which he received notice thereof, and eventually return- 
 ing the certificate at tlie same time. 
 
 The obligation of the report and proof rests — 
 
 (1) If there is an ownership, with all the co-owners ; 
 
 (2) If a limited liability company is owner or co-owner, with all 
 
 the directors thereof ; 
 
 (3) If another commercial association is owner or co owner, with 
 
 all the personally liable members thereof. 
 
 (4) If the change consists in a transfer of ownership, by which the 
 
 right to carry the flag of the Confederation is not affected 
 with the new owner of the vessel or share. 
 § 13. If a vessel which, according to the provision of § 2, is not 
 entitled to carry the flag of the Confederation, nevertheless sails under 
 the flag of the Confederation, the master of such vessel is subject to a 
 fine up to five hundred thalers or to imprisonment up to six months ; 
 the vessel may likewise be confiscated. 
 
 § 14. If a vessel which, according to § 10, must abstain from carry- 
 ing the flag of the Confederation, because the entry in the i*egister of 
 shipping or the granting of the certificate has not yet taken place, 
 nevertheless sails under the flag of the Confederation, the master of the 
 vessel is subject to a fine up to one hundred thalers, or proportionate 
 imprisonment in case he cannot prove that the unauthorised hoisting of 
 the flag of the Confederation was done without his fault. 
 
 § 15. Any one who does not fulfil the obligation resting upon him 
 in accordance with § 12 within the prescribed period of six weeks is 
 liable to the punishment threatened by § 14 in case he cannot prove 
 that he was faultless in not complying with the regulation. The 
 punishment cannot be inflicted if befoi^e the expiration of the time 
 such obligation was fulfilled by another person who was equally 
 obliged to perform the same duty. The punishment is doubled towards 
 such person as likewise neglects to fulfil the obligation within six weeks 
 after the day on which the judgment becomes valid in law. 
 
 § 16. If a foreign vessel outside the territory of the Confederation 
 becomes by transfer the property of a person who is a subject of the 
 Confederation, and acquires thereby the I'ight to carry its flag, the 
 entry in the register of shipping and the certificate may be replaced 
 by a certificate issued by the consul of the Confederation in whose 
 district the vessel at the time of the transfer was, and by which this
 
 816 MARITIME LEGISLATION. 
 
 official attests the acquisition of the right to carry the flag of the Con- 
 federation ; but such consular certificate is only valid for the duration 
 of one year from its date, and beyond this year only for such time as 
 the voyage may be prolonged by force majeure. As long as con- 
 sulates of the separate states of the Confederation exist, the certi- 
 ficate in question may be granted by the consul of such state of tlie 
 Confederation to which the buyer of the vessel belongs, and no such 
 consid nor a consul of the Confederation being appointed, by the 
 consul of another state of the Confederation (Art. 56 of the Constitution 
 of the Confederation). 
 
 § 17.' It is I'eserved for the laws of the Confederation to determine 
 whether and which smaller vessels (coasters, &c.) are entitled to carry the 
 flag of the Confederation without previous entry in the register of 
 shipping and the grant of the certificate. 
 
 § 18. Vessels which, in accordance with § 2, are entitled to carry 
 the flag of the Confederation, and which in consequence of the pro- 
 ■visions of Art. 432 of the General German Mercantile Law are already 
 entered on the ship's register of a confederate state, and are therefore 
 already provided with certificates as to the right of carrying the flag 
 of the Confederation, do not require to be entered again on the register 
 of shipping or to be provided with new certificates in order to exercise 
 the right to carry the flag of the Confederation. 
 
 § 19. The provisions of the laws of the Confederation respecting the 
 keeping of the existing registers of shipping apply likewise to the 
 keeping of registers of shipping according to this law in so far as they 
 are in accordance with the provisions of the same, and without pre- 
 judice to later alterations by the laws of the Confederation. 
 § 20. This law enters into force on April 1, 1868. 
 Respecting such vessels as are at present entitled to carry the flag 
 of Mecklenburg-Schwerin, the provisions of § 2 as to the requirements 
 of the nationality do not enter into force before April 1, 1869. 
 Done at Castle Babelsberg, October 25, 1867. 
 
 /o- i\ 1 WiLHELM. 
 
 (Signed) \ 
 
 Count v. Bismarck-Schonhausen. 
 
 ' Repealed by the law of June 28, 1873. (See p. 817.)
 
 APPENDIX. 817 
 
 ■REGISTRATION AND DESIGNATION OF MERCHANT 
 VESSELS. IMPERIAL LAW OF JUNE 28, 1873. 
 
 We, William, itc. etc. 
 
 § 1. Ill place of § 17 of the law respecting the nationality of mer- 
 cliant vessels and their right to carry the flag of the Confederation, 
 dated October 25, 1867, the following regulation is suljstituted : — 
 
 ' Vessels of not more than fifty cubic metres gross tonnage are 
 entitled to carry the national flag without entry into the register of 
 shipping and the grant of the certificate.' 
 
 § 2. The change of name of a vessel once entered in the register of 
 shipping may only, from specially urgent reasons, be allowed. The 
 consent of the Imperial Chancellor's Office is requisite for it. 
 
 § 3. Every vessel entered in the register of shipping must have — 
 
 (1) Its name on each side of the bow, and 
 
 (2) Its name, and the name of the port of registry, on the perma- 
 
 nent parts of th» stern, in good, visible, and securely fastened 
 lettei's. 
 § 4. In case of contravention against the provisions of § 3, the 
 master of the vessel is subject to a fine up to one hundred and fifty 
 marks, or imprisonment. 
 
 § 5, This law enters into force on January 1, 1874. 
 Done at Castle Babelsberg, June 28, 1873. 
 
 T,s ' /a- i\ ( WiLHELM. 
 
 •Li-»- I (Signed) J 
 
 i FuRST V. Bismarck. 
 
 LAW RESPECTING COAST TRADING VOYAGES, DATED 
 MAY 22, 1881. 
 
 § 1. The right to load goods in a German seaport, and to carry them 
 to another German seaport in order to be discharged there (coast trading 
 voyages) belongs exclusively to German vessels. 
 
 § 2. This right may be granted to foreign vessels by State treaty, 
 
 3 G
 
 818 INJAEITIME LEGISLATION. 
 
 or -with consent of the Council of the Confederation by inipej-i.-il 
 decree.' 
 
 § 3. Tlie master of a foreign vessel who, unauthorised, pursues 
 coast trading voyages, is subject to a fine up to three thousand marks. 
 
 And the vessel, as well as the goods so illegally forwarded, may, 
 besides the fine, be adjudged to be confiscated, irrespective of whether 
 tliey belong to the party condemned or not. § 42 of the penal code is 
 accordingly to be applied. 
 
 § 4. Existing treaty stipulations as to coast trading voyages are 
 not afiected by this law.- 
 
 § 5. This law enters into force on January 1, 1882. 
 
 ' By decree of December 29, 1881 : ' The right to load goods in a German sea- 
 port, and to carry them to another German seaport in order to be discharged there 
 (coast trading voyages), has been granted to vessels of Belgium, theBrazils, Denmark, 
 Great Britain, Italy, and Sweden-Norway.' 
 
 ^ The present treaty regulations to which § 4 of the above law refers are given 
 in detail by the proclamation of the Imperial Chancellor, dated December 29, 1881. 
 They concern Austro-Hungary, Eoumania, Siam, and Tonga.
 
 NDEX. 
 
 ADM 
 
 Admiralty Jimsdiction of County 
 Court, 621-623 
 
 Admiralty Practice, suggestions for 
 the improvement of, 624- 626 
 
 Affreightment, principles originally 
 proposed, 295-297 ; ch-culated by 
 Social Science Association, 297- 
 298 ; Discussion upon them at 
 Sheffield Congress, 298 306 ; 
 Draft agreed upon at Sheffield 
 Congress, 306-308 ; Resmne of 
 early Bill of Lading Discussions, 
 309-310 ; proposed law of, and 
 uniform Bill of Lading. See Bill 
 of Ladmg 
 
 Appellate jurisdiction in maritime 
 causes, 681-684 
 
 Average. See General Average, 
 German law concerning, 741- 
 750 
 
 Bills of lading, resume of early 
 discussions on Eastern trade, 309 ; 
 proposed uniform, 310; Mr. Rein, 
 hold's paper on, at London Con- 
 ference 1879,311-325; committee 
 l^roposed to deal with subject, 326 ; 
 Report of Committee to Berne 
 Conference, 326-327 ; Discussion 
 at Berne Conference, 327-329 ; 
 Report of Committee to Cologne 
 Conference, 329-331 ; Dr. Stubbs' 
 paper on the formulation of a 
 Model Bill of Lading at Cologne 
 Conference, 331-339 ; Mr. 
 Lowndes' paper on a common 
 
 BIL 
 
 form of Bill of Lading, 340-355 ; 
 Committee nommated to consider 
 subject, 355 ; Liverpool Con- 
 ference on, 356 Report of Hon. 
 Secretary, Dr. Stubbs, to Liver- 
 pool Conference, 356-358; Report 
 of Mr. Lowndes, 358-366; Dis- 
 cussion and Resolutions at Liver- 
 pool Conference, 366-379 ; Liver- 
 pool di-aft bill of lading as adopted, 
 379-382; New York Produce 
 Exchange, Report on Liverpool 
 BiU of Lading, 382-397 ; Bill of 
 Lading proposed by that Com- 
 mittee, 395-397; New Zealand 
 and Australian underwriters' pro- 
 test against Negligence Clause, 
 398-401 ; London Insm-anee 
 Companies' protest, 401-402 ; 
 Both considered at Milan Con- 
 ference, 402 : Proposed United 
 States Bill of Lading Act, 402- 
 405; New York Produce Ex- 
 change Bill of Lading, 405-408 ; 
 Meeting called by Llo^'d's to 
 agree to a ' Lloyd's ' Bill of 
 Lading, 409-417; 'Baltic 'meeting 
 called to agree to a common 
 form of bill of Lading, 417-419 ; 
 London Chamber of Commerce, 
 Meeting for same purpose, 419- 
 425 ; Memorial on same subject 
 to President of Roj'al Commis- 
 sion on Merchant Shipping, 426 ; 
 ' Baltic' meeting to consider report 
 of their committee, 428-430 ; Re- 
 consideration of subject at Ham-
 
 820 
 
 MARITIME LEGISLATION. 
 
 BIL 
 
 burg Conference, 430-476; Rules 
 prepared by Hamburg Chamber 
 of Commerce, 435-438 ; Ditto, by 
 Chamber of Commerce of Lubeck, 
 440-441 ; Dr. Stubbs' Draft In- 
 ternational Code of Affreight- 
 ment, 443-447; Bill of Ladmg 
 and Eules of Affi-eightment as 
 drawn by Committee, 466-470 ; 
 Ditto as passed by Hamburg 
 Conference, 472-475 ; Protest of 
 Hamburg Chamber of Commerce 
 against, 476 ; Resolutions passed 
 at Antwerp Conference, 477-478 ; 
 Report of London Chamber of 
 Commerce Committee, 478-486 ; 
 Act of Parliament suggested by 
 this Committee, 483-486 ; Final 
 Report of Committee, 486-487; 
 Hambui-g and Bremen Chambers 
 of Commerce Bill of Lading and 
 Rules of Affreightment, 487-493 ; 
 London Conference (1887), 493- 
 506; Sir Charles P. Butt on 
 the Negligence Clause, 493-496; 
 Discussion on this Clause, 496- 
 506; Report of Royal Commis- 
 sion on Loss of Life at Sea ; 
 their views on the responsibilitj' 
 of shipowners to cargo-owners, 
 507-508 ; authors' argument in 
 favour of a Bill of Lading being 
 agreed upon, 508 512. See also 
 Affreightment 
 Bottomry, German law concerning, 
 737-741 
 
 Coast Trading voyages, German 
 law concerning, 817, 818 
 
 Collision, limited lialjility in cases 
 of. See Limited Liability of Ship- 
 owners, German law concerning, 
 751-754 
 
 County Courts, Admiralty jurisdic- 
 tion of, 621-023 
 
 Creditors' sliips, German law con- 
 cerning, 754 759 
 
 Crow, Genuan law coiiceniiiig. 
 700-711 
 
 GEN 
 
 Depositions, See Merchant ships' 
 
 logs 
 Distressed seamen, German law 
 
 concerning passage home of, 811, 
 
 812 
 
 Eastern Trade Bill of Lading, 209 
 
 Freight, when ship abandoned at 
 sea, 027-629 
 
 Gener.\l Average :— Initiation of 
 movement leading to York 
 Antwerp Rules, 1 ; Glasgow 
 Conference, Discussion, and Re- 
 solutions, 1-70; Draft Bill em- 
 bodying Glasgow Resolutions, 
 71-94 ; remarks upon by 
 Antwerp Delegates, 95-107 ; 
 Amendment of Bill at London 
 Preliminary Meetings, 1862, 107- 
 109 ; report of Preliminary 
 Committee, 111 ; return of at- 
 tendance of such Committee, 112; 
 resignation of Committee of 
 Llojxl's, 113 ; correspondence upon 
 such resignation, 113-116; Lon- 
 don Conference, 117 ; Amended 
 Draft Bill, 117-119; Committee 
 appointed to settle the Bill, 120 ; 
 epitome of members' opinions, 
 121-125 ; Final Draft BiU, 126- 
 128 ; York Congress discussion 
 and resolutions, 128-205; rules 
 as framed at York Congress, 
 205-209 ; Bremen Conference, 
 210-213 ; Committee then ap- 
 pointed, 213-214 ; Antwerp Con- 
 ference, 214 ; alterations made 
 in the York Rules, 244-245 ; the 
 York and Antwerp Rules, 245- 
 247 ; protest of Lloyd's, 248 ; 
 report of Committee to Frankfort 
 Conference, 249-254;- Frankfort 
 a])proval of rules, 255 256 ; rc- 
 ])ort to London Conference 1879, 
 255 259 ; discussion thereon.
 
 liNDEX. 
 
 821 
 
 GEN 
 
 259-2G2 ; report to Berne Con- 
 ference, 2G2-2bO; report to Ham- 
 burg Conference, 280 294 
 
 German General Mercantile Law: — 
 Maritime Commerce, 687-759 ; 
 general provisions, C87 G90 ; 
 ownership, G90-G9G; the master, 
 G9G-70G; the crew, 70G-711 ; 
 freight (goods), 711-735 ; freight 
 (passengers), 735-737 ; bottomry, 
 737-741; Average, 741-750; 
 damage by collision, 750 ; salvage, 
 751-754 ; ships' creditors, 754- 
 759. Maritime Insurance, 759- 
 790 ; general principles, 759-7G5 ; 
 statements to be made by assured, 
 7G5-7G6 ; obligations of assured 
 arising out of contract, 7GG-7G8 ; 
 extent of the risk, 768-778; 
 extent of the damage, 778-784 ; 
 payment of losses, 784-787 ; 
 cancelling the insurance, 787- 
 788 ; time limitation of liability, 
 788-790 
 
 German law concerning goods, 
 711-735 ; passengers, 735-737 
 
 German Maritime Law, regulation 
 for seamen of 1872, 790-811 ; 
 mtroductory regulations, 790 i 
 sea voyage books and articles, 
 791-793 ; seamen's contract and 
 wages, 794-803 ; disciplinary 
 regulations for seamen, 803-804 ; 
 punishment of seamen, 805-809 ; 
 general conditions, 810-811 
 
 German Maritune Law, Distressed 
 Seamen, regulation of 1872, 811- 
 812 
 
 German Maritime Law, nationality 
 of merchant vessels, 813-816 
 
 German Maritime Law, registra- 
 tion of merchant vessels, 817 
 
 German Maritime Law, regulation 
 concerning coast trading voyages, 
 817-818 
 
 Hamburg Chamber of Commerce 
 llules of Affreightment, 435- 
 438, 487-493 
 
 MER 
 
 Hamburg and Bremen Chambers 
 of Connuorce Bill of Lading and 
 Bulcs of Affreightment, 487-493 
 
 Hamburg llules of Affreightment 
 and Bill of Lading, 472-475 
 
 Insurance, German Law, 759 790 
 
 Legislation, necessity for amend- 
 ing, 670 680 
 
 Limited liability of shipowners {see 
 the ' Marie de Brabant ' case), 
 513-526 ; under the Merchant 
 Shipping Acts, author's observa- 
 tions on, 610-619 
 
 Liverpool Bill of Ladmg, 379-382 
 
 Lloyd's Bill of Ladmg proj)osed, 
 409-417 
 
 Log-books, proposed reform in. 
 See Merchant ships' logs 
 
 Lubeck Chambers of Commerce 
 Rules of Affreightment, 440-441 
 
 ' Marie de Brabant,' case of, 513- 
 526 ; memorial to Board of 
 Trade, 513-523 ; Board of Trade 
 answer, 523-525 ; author's reply, 
 524-526 
 
 Masters, German law concerning, 
 696-706 
 
 Merchant Shipping Acts 1854, 
 observations on, 527-607; 1855, 
 607 ; 1862, 607 
 
 Merchant ships' logs, protests, and 
 depositions before receivers, 
 655-669 ; letter from London 
 Salvage Association to Privy 
 Council, 656 658; author's me- 
 morandum on merchant ships' 
 protests, 658-663; rejwrt on 
 merchant ships' protests and log- 
 books to London Conference, 
 664-668 
 
 Merchant ships, German law con- 
 cerning. See under German 
 General ^[ercantile Law and 
 German Maritime Law
 
 6-22 
 
 MARITIME LEGISLATION. 
 
 KEW 
 
 New York Produce Exchange Bill 
 of Lading, 395-397, 405-408 
 
 OwxEESHiP of merchant ships, 
 German law concerning, 690- 
 696 
 
 Passenger freight, German law 
 concerning, 735-737 
 
 Piracj^, wilful destruction of pro- 
 perty at sea to be regarded as, 
 630-654 
 
 Protests. See Merchant ships' logs 
 
 Sai-vage, German law concerning, 
 
 751-754 
 Sea voyage books, German law 
 
 concerning, 791-793 
 Seamen, German law concerning. 
 
 YOR 
 
 790-812. {See under German 
 Maritime Law.) 
 Ships' Articles, German law con- 
 cerning, 791-793 
 
 United States Bills of Laduig 
 Act, 402-405 
 
 Wages, ' Gei*man law concerning 
 seamen's, 794-803 
 
 Wilful destruction of property at 
 sea, 630-654 ; memorandum by 
 author, 630-647; the ' Mosel' 
 case, 648-649; Dr. Von Spess- 
 hardt's observations on, 650-652 ; 
 the ' Ferret ' case, 653-054 
 
 York and Antwerp Rules of 
 General Average, 245-247 
 
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