Thomas Gilbert Carver

“ The case of a stranded ship and cargo often gives rise to difficulty as to whether the cost of operations to lighten the ship, and afterwards to get her floated, should be treated as G.A. expenditure, or as expenses separately incurred in saving the separate interests. The true conclusion seems to be that either the whole operation should be treated as one for the common safety, and the whole expense be contributed to by all the interests saved, or else the several parts of the operation should be kept distinct, debiting the cost of each to the interests thereby saved. ”

“ An interest which has become lost after the sacrifice, during the subsequent course of the voyage, will pay nothing; an interest which has become depreciated will pay in proportion to the diminished value. The liability to contribute is inchoate only when the sacrifice has been made. It becomes complete when the adventure has come to an end, either by arrival at the destination, or by having been broken up at some intermediate point, while the interest in question still survives. To this there is one exception, in the case of G.A. expenditure. ”

“ The liability to pay G.A. contributions falls primarily upon the owner of the contributing interest, ship, goods or freight. But in practice the contributions are paid by the insurers of the several interests. Merchants seldom have to concern themselves with the subject. And yet in an ordinary policy of insurance there is no express provision requiring the underwriter to indemnify the assured against this liability. ”

“ Whatever the reason for putting into the port of refuge, provided it was necessary for the common safety, the expenses of going in, and the consequent expenses of getting out (if she sails again with all or part of her original cargo) , are allowed as G.A., Rule X. (a) . Further, the cost of discharging the cargo to enable damage to the ship to be repaired, whether caused by sacrifice or by accident during the voyage, is to be allowed as G.A., “if the repairs were necessary for the safe prosecution of the voyage,” Rule X. (b) . ”

“ If a ship under average be in a port or place at which it is practicable to repair her, so as to enable her to carry on the whole cargo, and if, in order to save expenses, either she is towed thence to some other port or place of repair or to her destination, or the cargo or a portion of it is transhipped by another ship, or otherwise forwarded, then the extra cost of such towage, transhipment and forwarding, or any of them (up to the amount of the extra expense saved) , shall be payable by the several parties to the adventure in proportion to the extraordinary expense saved. ”

“ And the corresponding damage in the case of cargo discharged at a port of refuge to enable repairs to be done to the ship is allowed by Rule XII. But in the latter case the allowance does not expressly extend to damage sustained while stored on land. Whether the law would require contribution to a loss of goods, say, by thieves or by fire, while landed for repairs, is not clear. Where the landing has been necessitated by a G.A. act, as cutting away masts, it would seem that the loss ought to be made good, as being a result of the special risks to which those goods have thereby been exposed. ”

“ Another view is that the underwriter impliedly undertakes to repay sums which the law may require the assured to pay towards averting losses which would, by the contract, fall upon the underwriter. Expenses voluntarily incurred by the assured with that object are expressly made repayable by the sue and labour clause of the policy. It might well be implied that payments compulsorily required from the assured by law for contributions to G.A., or as salvage for services by salvors, will be undertaken or repaid by the underwriter, the service being for his benefit. ”

“ The amount to be made good will not necessarily be the value of the goods or other property in their condition at the time they were sacrificed; so to calculate it would in effect be to withdraw those goods from the subsequent risks of the voyage, and thus to put them in a better position than those which were not sacrificed. Hence, in estimating the amount to be made good, the value of the goods or property sacrificed must be estimated as on arrival, with reference to the condition in which they would probably have arrived had they remained on board throughout the voyage. ”

“ As to the acts which amount to G.A. sacrifices, as distinguished from expenditures, the York-Antwerp Rules do not much alter English common law. They do, however, make definite provisions upon some points on which authority was scanty or doubtful. (See Rules I.-IX.) And in Rule I., General average sacrifices.as to jettison of deck cargo, a change is made from the common law rule, for the jettison is not allowed as G.A. even though the cargo be carried on deck in accordance with an established custom of the particular trade. ”

“ Damage caused to machinery and boilers of a ship which is ashore and in a position of peril, in endeavouring to refloat, shall be allowed in G.A., when shown to have arisen from an actual intention to float the ship for the common safety at the risk of such damage. ”

“ No deduction shall be made in respect of provisions and stores which had not been in use. Metal sheathing shall be dealt with, by allowing in full the cost of a weight equal to the gross weight of metal sheathing stripped off, minus the proceeds of the old metal. Nails, felt and labour metalling are subject to a deduction of one-third. ”

“ Except as provided in the foregoing rules, the adjustment shall be drawn up in accordance with the law and practice that would have governed the adjustment had the contract of affreightment not contained a clause to pay G.A. according to these rules. ”

“ The honour of the achievement belongs to a small number of men who recognized the need of uniformity. The work began in May 1860 at the congress held at Glasgow, under the presidency of Lord Brougham, assisted by Lord Neaves. ”