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Account of the Produce of the Auction Duties in each of the 3 Years ending the 5th of January, 1843,
distinguishing the Amount paid under separate leads.
Amount of Auction Duties on the sale of
101,536 13 9
5,67 5 10
6 17 10
113,331 9 83
190,66) 8 54
19 15 6
2,951 9 9
296,964 3 54
2,865 16 24
3 260,259 16 111 74 12
19,541 0 31 O?!
11 1 3 Year ended 5th of January, 1843 preservation of the whole; or money or goods are given as a composition to pirates to save the rest; or an expense is incurred in reclaiming the ship, or defending a suit in a foreign court of admiralty, and obtaining her discharge from an unjust capture or detention; in these and the like cases, where any sacrifice is deliberately and voluntarily made, or any expense fairly and bona fide incurred, to prevent a total loss, such sacrifice or expense is the proper subject of a general contribution, and ought to be rateably borne by the owners of the ship, freight, and cargo, so that the loss may fall equally on all, according to the equitable maxim of the civil law ---- no one ought to be enriched by another's loss : Nemo debet locupletari aliena jactura."
Upon this fair principle is founded the doctrine of average contributions; regulations with respect to which having been embodied in the Rhodian law, were thence adopted into the Roman law; and form a prominent part of all modern systems of maritime jurisprudence. The rule of the Rhodian law is, that “if, for the sake of lightening a ship in danger at sea, goods be thrown overboard, the loss incurred for the sake of all, sball be made good by a general contribution."-(Dig. lib. 14. tit. 2. $1.; Schomberg on the Maritime Laws of Rhodes, p. 60.)
Formerly it was a common practice to ransom British ships when captured by an enemy, the ransom being made good by a general average. But this practice having been deemed disadvantageous, it was abolished by statute 22 Geo. 3. c. 25., which deelares, “ That all contracts and agreements which shall be entered into, and all bills, notes, and other securities, which shall be given by any person or persons, for ransom of any ship or vessel, merchandize, or goods, captured by the subjects of any state at war with his Majesty, or by any person committing hostilities against his Majesty's subjects, shall be absolutely void in law, and of no effect whatever ; ” and a penalty of 5001, is given to the informer, for every offence against this act.
Average is either general or particular ; that is, it either affects all who have any interest in the ship and cargo, or only some of them. The contributions levied in the cases mentioned above, come under the first class. But when losses occur from ordinary wear and tear, or from the perils naturally incident to a voyage, without being voluntarily encountered, such as the accidental springing of masts, the loss of anchors, &c., or when any peculiar sacrifice is made for the sake of the ship only, or of the cargo only, these losses, or this sacrifice, must be borne by the parties immediately interested, and are consequently defrayed by a particular average.
There are also some small charges called petty or accustomed averages; it is usual to charge one third of them to the ship and two thirds to the cargo.
No general average ever takes place, except it can be shown that the danger was im. minent, and that the sacrifice made was indispensable, or supposed to be indispensable, by the captain and officers, for the safety of the ship and cargo. The captain, on coming on shore, should immediately make his protests; and he, with some of the crew, should make oath that the goods were thrown overboard, masts or anchors cut away, money paid, or other loss sustained, for the preservation of the ship and goods, and of the lives of those on board, and for no other purpose. The average, if not settled before, should then be adjusted, and it should be paid before the cargo is landed; for the owners of the ship have a lien on the goods on board, not only for the freight, but also to answer all averages and contributions that may be due. But though the captain should neglect his duty in this respect, the sufferer would not be without a remedy, but might bring an action either against him or the owners. The laws of different states, and the opinions of the ablest jurists, vary as to whether the loss incurred in defending a ship against an enemy or pirate, and in the treatment of the wounded officers and men, should be made good by general or particular average.
The Ordinance of the Hanse Towns (art. 35.), the Ordinance of 1681 (liv. iii. tit. 7. $ 6.), and the Code de Commerce (art. 400. Ş. 6.), explicitly declare that the charges on account of medicine, and for attendance upon the officers and seamen wounded in de. fending the ship, shall be general average. A regulation of this sort seems to be founded on reason. But other codes are silent on the subject; and though the contrary opinion had been advanced by Mr. Serjeant Marshall, and by Mr. Justice Park in the earlier editions of his work, the Court of Common Pleas has unanimously decided that in England neither the damage done to a ship, nor the ammunition expended, nor the expense of healing sailors wounded in an action with an enemy or pirate, is a subject of general average. --( Abbott on the Law of Shipping, part iii, cap. 8.)
Much doubt has been entertained, whether expenses incurred by a ship in an intermediate port in which she has taken refuge, should be general average or fall only on the ship. But on principle, at least, it is clear, that if the retreat of the ship to port be made in order to obviate the danger of foundering, or some other great and imminent calamity, the expenses incurred in entering it, and during the time she is forced by stress of weather, or adverse winds, to continue in it, ought to belong to general average. But if the retreat of the ship to port be made in order to repair an injury occasioned by the unskilfulness of the master, or in consequence of any defect in her outfit, such, for example, as deficiencies of water, provisions, sails, &c., with which she ought to have been sufficiently supplied before setting out, the expenses should fall wholly on the owners.
When a ship (supposed to be scaworthy) is forced to take refuge in an intermediate port, because of a loss occasioned by a peril of the sea, as the springing of a mast, &c., then, as the accident is not ascribable to any fault of the master or owners, and the retreat to port is indispensable for the safety of the ship and cargo, it would seem that any extraordinary expense incurred in entering it should be made good by general average.
Supposing, however, that it could be shown, that the ship was not, at her outset, seaworthy, or in condition to withstand the perils of the sea; that the mast, for example, which has sprung, had been previously damaged ; or supposing that the mischief had been occasioned by the incapacity of the master; the whole blame would, in such a case, be ascribable to the owners, who, besides defraying every expense, should be liable in damages, to the freighters for the delay that would necessarily take place in completing the voyage, and for whatever damage might be done to the cargo.
These, however, are merely the conclusions to which, as it appears to us, those must come who look only to principles. The law with respect to the points referred to differs in different countries, and has differed in this country at different periods. “A doubt,” says Lord Tenterden, “ was formerly entertained as to the expenses of a ship in a port in which she had taken refuge, to repair the damage occasioned by a tempest; but this has been removed by late decisions. And it has been held, that the wages and provisions of the crew during such a period must fall upon the ship alone. But if a ship should necessarily go into an intermediate port for the purpose only of repairing such a damage as is in itself a proper object of general contribution, possibly the wages, &c. during the period of such detention, may also be held to be general average, on the ground that the accessory should follow the nature of its principal."-( Law of Ship., pt. iii. c. 8.)
Perhaps the reader who reflects on the vagueness of this passage will be disposed to concur with Lord Tenterden's remark in another part of the same chapter, “ That the determinations of the English courts of justice furnish less of authority on this subject (average) than on any other branch of maritime law."
The question, whether the repairs which a ship undergoes that is forced to put into an intermediate port ought to be general or particular average, has occasioned a great diversity of opinion ; but the principles that ought to regulate our decision with respect to it seem pretty obvious. Injuries voluntarily done to the ship, as cutting away masts, yards, &c. to avert some impending danger, are universally admitted to be general average. It seems, however, hardly less clear, and is, indeed, expressly laid down by all the great authorities, that injuries done to the ship by the violence of the winds or the waves should be particular average, or should fall wholly on the owners. The ship, to use the admirable illustration of this principle given in the civil law, is like the tool or instrument of a workman in his trade. If in doing his work he break his hammer, his anvil, or any other instrument, he can claim 110 satisfaction for this from his employer. -(Dig. lib. xiv. tit. 2. $ 2.) The owners are bound, both by the usual conditions in all charterparties, and at common law, to carry the cargo to its destination; and they must consequently be bound, in the event of the ship sustaining any accidental or natural damage during the voyage, either to repair that damage at their own expense, or to provide another vessel to forward the goods. In point of fact, too, such subsidiary ships have often been provided; but it has never been pretended that their hire was a subject of general average, though it is plain it has quite as good a right to be so considered
as the cost of repairing the damage done to the ship by a peril of the sea. Hence, when a ship puts into an intermediate port for the common safety, the charges incurred in entering the port, and down to the earliest time that the wind and weather become farouruble for leaving it, ought to be general average ; but the repair of any damage she may have sustained by wear and tear, or by the mere violence of the storm, or an accidental peril, and the wages of the crew, and other expenses incurred after the weather has moderated, should fall wholly on the owners.
It has been, however, within these few years, decided, in the case of a British ship that had been obliged to put into port in consequence of an injury resulting from her accidentally coming into collision with another, that so much of the repair she then underwent as was absolutely necessary to enable her to perform her voyage should be
general average. The Judges, however, spoke rather doubtfully on the subject; and it is exceedingly difficult to discover any good grounds for the judgment. --(Plummer and Another v. Wildınan, 3 M. & S. 482.)- It seems directly opposed to all principle, as well as to the authority of the laws of Rhodes (Dig. 14. tit. 2.), of Oleron (art 9.), of Wisby (art. 12.), and to the common law with respect to freight. Lord Tenterden has expressed himself as if he were hostile to the judgment. It is, indeed, at variance with all the doctrines he lays down; and the terms in which he alludes to it, “ yet in one Case," appear to hold it forth as an exception (which it certainly is) to the course of decisions on the subject.
It is now usual in this country, when a vessel puts into port on account of a damage belonging to particular average, which requires to be repaired before she can safely pruceed on her voyage, to allow in general average the expense of entering the port and unloading, to charge the owners of the goods or their underwriters with the warehouse rent and expenses attending the cargo, and to throw the expense of reloading and departure on the freight.
Considerable doubts have existed in regard to the policy of making the loss of goods stowed upon the deck and thrown overboard the subject of general average. The French Ordinance of 1681, proceeding on the assumption that deck stowage is in all cases improper, has expressly excluded goods so stowed from the benefit of such average. (Liv. ill. tit. 8. & 13). This, however, is plainly a matter in regard to which no invariable rule can be safely laid down; for, though speaking generally, stowage on the deck be improper and dangerous in most distant voyages, it may not be so, at least in certain seasons of the year, and in certain descriptions of vessels, in the coasting or cross-channel trades, or in over.sea voyages to contiguous countries. And such being the case, the preferable plan would seem to be to leave cases of the jettison of the deck cargo tu be decided according to the practice of the peculiar trade in which they may happen to take place. This
, too, we infer, though the point has not been judicially determined, is, in fact, the law of England at this moment. Primâ facie, deck goods are excluded from the benefit of general average; but if it can be shown that stowage on deck is the usage of the trade in which a jettison takes place, and the custom of the parties engaged in it, the general presumption against the practice would be defeated, and the goods would be admitted to the benefit of general average.—(See Mr. Serjeant Shee's valuable edition of Lord Tenterden's work on the Law of Shipping, pp. 481 – 489.)
A late statute, the 5 Vict. 2 sess. c. 17., makes it illegal for ships laden with timber and clearing out from any port in British N. America between the 1st of November and the 1st of May to have any portion of the cargo on deck. But, with this exception, the propriety of stowing goods on the deck must be determined by the opinions of those engaged in the particular trade in which it may have occurred.
According to the law of England, when a ship is injured by coming into collision with or running foul of another, if the misfortune has been accidental, and no blame can be ascribed to either party, the owners of the damaged ship have to bear the loss. In cases where a collision has taken place through the fault of one party only he, of course, is responsible for the consequences; but where both parties are to blame, without its being possible to discriminate the precise culpability of each, the loss or damage is to be defrayed equally by both parties. And this, also, is the rule laid down by the laws of Oleron and Wisby, and the famous French Ordinance of 1681, in reference to accidental collisions. The Code de Commerce (art. 407.), however, throws the loss resulting from accidental collisions on the suffering party, harmonising in this respect with the law of England. --(See Collision, in Supplement.)
The ship and freight, and every thing on board, even jewels, plate, and money, except wearing apparel, contribute to general average. But the wages of seamen do not contribute ; because, had they been laid under this obligation, they might have been tempted to oppose a sacrifice necessary for the general safety.
Different states have adopted different modes of valuing the articles which are to contribute to an average. In this respect the law of England has varied considerably at different periods. At present, however, the ship is valued at the price she is worth on sul
her arrival at the port of delivery. The value of the freight is held to be the clear su which the ship has earned after seamen's wages, pilotage, and all such other charges as come under the name of petty averages, are deducted. It is now the settled practice to value the goods lost, as well as those saved, at the price they would have fetched in ready money, at the port of delivery, on the ship's arrival there, freight, duties, and other charges being deducted. Each person's share of the loss will bear the same proportion to the value of his property, that the whole loss bears to the aggregate value of the ship, freight, and cargo. The necessity of taking the goods lost into this account is obvious; for otherwise their owner would be the only person who would not be a loser.
When the loss of masts, cables, and other furniture of the ship, is compensated by general average, it is usual, as the new articles will, in all ordinary cases, be of greater value than those that have been lost, to deduct one third from the value of the former, leaving two thirds only to be contributed.
But the mode of adjusting an average will be better understood by the following example, extracted from Chief Justice Tenterden's valuable work on the Law of Shipping, part iii. cap. 8.
“ The reader will suppose that it became necessary, in the Downs, to cut the cable of a ship destined for Hull; that the ship afterwards struck upon the Goodwin, which compelled the master to cut away his mast, and cast overboard part of the cargo, in which operation another part was injured; and that the ship, being cleared from the sands, was forced to take refuge in Ramsgate harbour, to avoid the further effects of the storm.
Amount of Losses.
Value of Articles to contribute.
L. 800 200 100 200 50
500 2,000 5,00) 2,000
Total of losses.
Gools of A. cast overboard
Goods of A. cast overboard . Damage of the goods of 1. by the jettison :
Sound value of the goods of B., deducting freight Freight of the goods cast overboard
and charges Price of a new cable, anchor, and mast L.300)
Goods of c. Deduct one third
D. Expense of bringing the ship off the sands
E. Pilotage and port duties going into the harbour
Value of the ship and out, and commission to the agent who
Clear freight, deducting wages, victuals, &c.
L. 11,800 Then, 11,8001. : 1,1801. : : 1001. : 101. That is, each person will lose 10 per cent. upon the value of his interest in the cargo, ship, or freight. Therefore, A. Ines 501., B. 1001., C. 501., D. 2001., E. 3001., the owners 2801,; in all, 1.180!, Upon this calculation, the owners are to lose 2801. ; but they are to receive from the contribution 3801., to make good their disbursements, and 1001. more for the freight of the goods thrown overboard; or 4806., minus 2801. They, therefore, are actually to receive
Total to be actually paid which is exactly equal to the total to be actually received, and must be paid by and to each person in rateable proportion.
“ In the above estimate of losses, I have included the freight of the goods thrown overboard, which appears to be proper, as the freight of the goods is to be paid, and their supposed value is taken clear of freight, as well as other charges. where the practice of insurance is very general, it is usual for the broker, who has pro. cured the policy of insurance, to draw up an adjustment of the average, which is commonly paid in the first instance by the insurers without dispute. In case of dispute, the contribution may be recovered either by a suit in equity, or by an action at law, instituted by each individual entitled to receive, against each party that ought to pay, for the amount of his share. And in the case of a general ship, where there are many consignees, it is usual for the master, before he delivers the goods, to take a bond from the ditferent merchants for payment of their portions of the average when the same shall be adjusted."
The subject of average does not necessarily make a part of the law of insurance ; though as insurers, from the terms of most policies, are liable to indemnify the insured against those contributions which are properly denominated general average, its consideration very frequently occurs in questions as to partial losses. But in order to confine assurances to that which should be their only object, namely, an indemnity against real and important losses arising from a peril of the sea, as well as to obviate disputes respecting losses arising from the perishable quality of the goods insured, and all trivial subjects of difference and litigation, it seems to be the general law of all maritime states, and is expressly, indeed, provided by the famous Ordinance of 1681 (see liv. iii. tit. 6. & 47., and the elaborate commentary of M. Valin), that the insurer shall not be liable to any demand on account of average, unless it exceed one per cent. An
In this country, article (No. 408.) to the same effect is inserted in the Code de Commerce; and, by stipulation, this limitation is frequently extended in French policies to three or four per cent. A similar practice was adopted in this country in 1749. It is now constantly stipulated in all policies, that upon certain enumerated articles of a quality peculiarly perishable, the insurer shall not be liable for any partial loss whatever ; that upon certain others liable to partial injuries, but less difficult to be preserved at sea, he shall only be liable for partial losses above five per cent. ; and that as to all other goods, and also the ship and freight, he shall only be liable for partial losses above three per cent. This stipulation is made by a memorandum inserted at the bottom of all policies done at Lloyd's, of the following tenour : -“ N. B. Corn, fish, salt, fruit, flour, and seeds are warranted free from average, unless general, or the ship be stranded; sugar, tobacco, hemp, flax, hides, and skins are warranted free from average under 51. per cent. ; and all other goods free from average under 31. per cent., unless general, or the ship be stranded.”
The form of this memorandum was universally used, as well by the Royal Exchange and London Assurance Companies as by private underwriters, till 1754, when it was decided that a ship having run aground, was a stranded ship within the meaning of the mernorandum ; and that although she got off again, the underwriters were liable to the average or partial loss upon damaged corn. This decision induced the two Companies to strike the words “ or the ship be stranded” out of the memorandum; so that now they consider themselves liable to no losses which can happen to such commodities, except general averages and total losses. The old form is still retained by the private underwriters. --(See STRANDING.)
· The reader is referred, for the further discussion of this important subject, to the article MARINE INSURANCE; and to Mr. Stevens's Essay on Areruge; Abbott on the Law of Shipping, part iii. cap. 8. ; Marshall on Insurance, book i. cap. 12. s. 7. ; Purk on Insurance, cap. 7.; and Mr. Benecke's elaborate and able work on the Principles of Indemnity in Marine Insurance.
AVOIRDU POIS, a weight used in determining the gravity of bulky commodities. See WEIGHTS AND MEASURES.
BACON and HAMS. The former is made from the sides and belly of the pig, and the latter from its hind legs. The process of curing may be effected indifferently by the employment of salt or sugar, or both ; but the first is by far the most commonly used: after being impregnated with salt or sugar, and allowed to remain a certain time in the solution, the bacon and hams are taken out, dried, and smoked. The counties of England most celebrated for bacon and hams are York, Hants, Berks, and Wilts. Ireland produces great quantities of both; but they are coarse, and not so well cured as the English, and much lower priced. Of the Scotch counties, Dumfries, Wigtown, and Kirkcudbright are celebrated for the excellence of their Vacon and hams, of which they export large quantities, principally to the Liverpool and London markets,
The imports of bacon and hams from Ireland have increased rapidly of late years. The average quar.tity imported during the three years ending the 25th of March, 1800, only amounted to 41,948 cwt. ; whereas during the three years ending with 1820, the average imports amounted to 204,380 cwt. ; and during the three years ending with 1825, they had increased to 338,218 cwt. In 1825, the trade between Ireland and Great Britain was placed on the footing of a coasting trade; and bacon and hams are imported and exported without any specific entry at the Custom-house. We believe, however, that the imports of these articles into Great Britain from Ireland amount, at present, to little less than 600,000 cwt. a year. The quantity of bacon and hams exported from Ireland to foreign countries is inconsiderable.
Previously to 1812 the duty on bacon and hams heing 28s. a cwt. was in effect prohibitory of the former, and little or none was imported. It was then, however, reduced to 14s, a cwt. (5 & 6 Vict. c. 47.), and there can be licule doubt that this reduction will occasion a considerable increase of importation.
The exports of bacon and bars from the United States during the year ended the 30th September 1841 amounted to 2,794,517 lbs. (Papers printed by order of Congress, 21 July 1842, p. 210.); and it was stated during the discussions on the tarif in the House of Commons in that large quantities of American bacon and hams would, most probably, be imported into this country. It is doubtful, however, whether such will be the case. At present American bacon is very inferior, the exports going principally to Cuba and other West India islands, where it is mostly employed in feeding slaves; and unless it be very much improved, the presumption is that it will not be sent to our markets. It is highly probable, however, that America will henceforth supply us with considerable quantities of salted pork, the duty on which is now only Xs. a cwt.
The old duty on hams produced, in 1840, 2,3891., showing that only 1,710 cwt, had been imported. But there can be no doubt that the imports will in future be largely increased. Westphalia hams being of a very superior quality, it is probable that they will be principally imported. Virginia hams are, also, of good quality.