kSJUJBRARY^A ,5>\EUNIVE1?% ^/saiAiNn-jttV^ ^^jmoio^^ ^•tfojiiwjo'^ ^jju3kvsoi=<^ ^OFCAUFOff^ ^OFCAUFOff^ ^5jt\EUNIVERS*/^ "^r7«'uw«m>i^ ^lOSANCFlfj-^ ^lOSANCEUf^ o ^ 'Oa^ ^VJJE-UBRABYQ?^ ^-QtfUNIVFRS/A '^ 5 1 ir^ ^ ^\ ^13*'^ r- 1 i^^^n^ "^ si s 0=^ %)JI1VDJ0=^ ^fJuawsoi'^^ <=> A #~^ cr ^NNlllBRARYQr ^(WWIIV^JO^ '^^OJIIVOJO'*^ ^HJAEUNIVERS/^ o T//PM1 i lUrt IHV AOFCAUFORfe. ca ^OFCAllFOff^^ -T» o ^lUBRARYO^ § 1 ir^ ^ ^OFCAUFO% ft ^OFCAUFORfe, ^5»£UNIVER% ^^OJITVDJO'^ "^JJUOKVSOl^ I ^IDSANCFUr^ ^/>A«VHfln-^>J^ "^/^AHVHSnA^ \l-UBRARY(?/, ^tfOJIlVJJO^ ,^OFCAIIFOR<^ S 3^ ^i-' > I- 5 ^ ^ — '^ ^.OFCAUFORjj^ i 5; ,«B^ P I' C" 5;^lUBRARY6k 5;^lUBRARYd?/. -uii im l^i i(^ ^WE•UNIVER% ^lOSANCEief^ ".>«/»"''••'•'"• ^ oe .t<5\ruNivn?% 5 ^•UBRARY6>/r S 1 ir"^ ^l-UBRARYQ^;^ IVJJO^ '^(SOilWJJO"^ i^'^ ^^5J\EDNIVER% o <^?^n^ft/•(;nl^^ "X^/mwmv^ ^.OFCAUFOfti^^ ^OFCAUFO/?^ "^/^viHv^fln-iV*^ (23 ^lOSANCFUr^ *nM-UBBARY<9a 3 ^ ic^ % ^I'UBRARYQa. ,5X\MINIVERS/A ea =3 \mm\^ %ojnv3jo'^ V ^ ^ ^ -^ w ^ <^tVWEUNIVFRS{^ I "%U3NVS01=^ ^•lOSANCElCf^ ^jSEUBRARYG^ ■^AiiJAiNflawv^ %oimi^'^ ^.^ojiivdjo^ lIFOff^ ^OFCAUFOffi^ ,\WEUNIVERS/A >??AHVH8nA'^'^ ■^/5a5iAiNa-;}VkV ^.OFCAIIFOI?^ ^OFCAHFOff^ ^\WEl)NIVERS/^ ^10SANCEli-j> o "^ A^lOSANCElfj^ -^^lUBRARYQf^ ^tUBRARYO?^ . ;•■■-> ;^ . •■■;4 •■• .' ■ ■jt^!i' A. iL. 7 /// r ^//'TTf/^iy •/ / /yy/? /n^ /r/^if^^-^ /n/f -^^/^/^i^/?^ /-^-//^c^/^^ ^-T^^yr-v ^ <>^ /^^/7 ^r^^^ /-/^/0<: ^^z/ 7 ^, Yy'/T.^:^/ ^, ^^2^/^^^ 7 -j- ' 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 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 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 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 urt 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 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 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 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 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 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 , 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-ivAII,^■. (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)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 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 Keenrer 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-) 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 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- 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 ^ 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 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 followinI-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(liiiil!.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 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 a5 ' 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 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 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 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- rJE 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 necr\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 '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\EKiNt, 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- 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 callef 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 Funa<^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 alr. 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 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. 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 freiiid 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>]('tiy 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 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 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 damaii 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 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. 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