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from the character of Parliament, Anne was personally unfitted to maintain the absolute sway of former monarchs.

So ends an examination of the Royal Prerogative during this long period. More than two centuries have been passed in review. We have seen the Prerogative of the Crown wax and wane-rising rapidly in unparalleled influence to decline to a position of second-rate importance in the State. In the individual wearers of the Crown it has been seen, how fraught for good or ill was their exercise of Prerogative. In the zenith of absolute sway, the national will disappeared. The Sovereign was all in all. He was his own law-giver. No Judge dared differ from him in the construction of his measures. Of the consciences of his subjects, he assumed the guardianship. But Absolutism passed into a Despotism of which there was no tolerance. The nation in time threw off that yoke. With what lasting benefit! New life was given to the nation-freedom to all to think and act as men. Religious fanaticism no longer cast its blight upon the land. The Press received its charter of liberty. Arcana imperii became things of the past. The people became, as they are to-day, the wielders of political power. The Sovereign is their servant. In a Prerogative whose exercise the subjects now truly control, the ancient kingly spell is gone. Nevertheless, the Throne is an institution deeply. rooted in the affections of the people.

Let it be the duty of all, as enjoined by Blackstone, "to reverence the Crown, and yet guard against corrupt and servile influence from those who are entrusted with its authority; to be loyal, yet free; obedient, and yet independent; and, above everything, to hope [as in his day so in ours] that we may long, very long be governed by a sovereign, who. . . hath manifested the highest veneration for the free constitution of Britain.”

G. W. WILTON.

286

II. THE YORK-ANTWERP RULES, 1890.

THE

THE modifications of the York-Antwerp Rules of General Average, proposed and carried at the Conference of the Association for the Reform and Codification of the Laws of Nations, held at Liverpool last autumn, appear to us to deserve a somewhat detailed notice. The first thing that strikes one is that, by the amendments carried out, we are practically arriving at a voluntary Code. The objection, if well founded, to the Rules, on their original appearance, that they were made. to fit special cases and did not lay down general principles, would seem to gather strength when we find the former 10 Rules increased in number to 18, and more than doubled in actual size, and when this increase would seem to point to still further accretions as time goes on, and discovers casus omissi, which, for lack of any general principle, different average adjusters, and after them legal tribunals, in distant places will decide in various manners. The idea in itself, no doubt, is a good one; that as it appears impossible to move the several machines of State to agree in any reasonable time to a uniform law, on this, or, perhaps, any other points relating to the Law of the Sea, except to the now universally accepted "Regulations for Preventing Collisions at Sea," those most interested-as Shipowners, Shippers, and Underwriters-in all civilised States should put their heads together and agree to be bound in the regulation of their business by certain general rules. From this point of view, each new Rule made to meet each particular case is a plank saved from the general wreck and confusion of conflicting laws and customs, and if all countries adopted the principle not yet materially interfered with in England, that any two

persons of man's estate, and sane, may enter into any contract they like so long as they do not interfere with others, such Rules might in process of time acquire the universal consent and respect that hedges in the quaint, and for other purposes obsolete, phraseology of an "Ordinary Lloyd's Policy." But our friends in all directions over the water are so fond of restricting this liberty of contract, that it is to be feared that these Rules will, as they gradually extend, find themselves in conflict with the positive laws of the place in which it is desired to enforce them. It will be as useless to plead the York-Antwerp Rules of 1877 or those of 1890, against the express or, indeed, implied law, of the State, as it has already proved in the United States for one reason (Liverpool and G. W. Steam Co. v. Phanix Ins. Co., 22 Davis Sup. Ct. Rep. 397), and in France (The France, 5 Rev. Int. de Dr. Mar., 610; Le Cid, 4 R.I.D.M. 629; Ville de Strasbourg, 4 R.I.D.M. 645; Desjardins, Dr. Comm. Mar., Vol. II., p. 62), and other States for others, to plead that a shipowner is not liable for the negligence of the master of his ship because the shipper accepted a Bill of Lading which specially stipulated for such non-liability. To take an example of one such peril avoided: it was proposed to modify the first Rule relating to jettison of deck-cargo. This Rule, as it has stood from 1877, only expresses that which was really a little bit of what may be called the Common Law of the Sea, i.e., that deck-cargo jettisoned does not share in General Average, by adding to it a corollary that places not built in with the frame of the ship, as, e.g., deck-houses, should be considered as the deck; this addition could not be repugnant to the doctrine of any of the Codes on the subject, adapted more or less closely from Art. 421 of the French Code, and had already, in 1875, been incorporated in that of Belgium (Arts. 20, 149). The further modification of this Rule proposed was that it should not apply to cases in which it was customary to carry deck-loads, e.g., in the timber and

cattle trades.

Now, had this amendment been carried, it would have been found to be in direct conflict with the French Code, Art. 229, which gives the shipper, whose goods are carried on the upper-deck without his consent in writing, another and direct remedy against the captain, and through him against the shipowner, and which, in common with the other Codes, expressly decrees that goods so laden shall not share in General Average. It is true that the Codes make an exception to the practical prohibition of deck-loading, that is to the captain's liability for goods so laden, in the case of small vessels engaged in the local coasting trade, from the necessity of the case, as such vessels are frequently wholly or partially open, and, therefore, must carry goods exposed, as on the upper-deck, and in the Spanish Code (Art. 855) goods so carried are permitted to share in General Average. But this special permission would exclude the operation of the proposed amendment in other cases-that is, in ocean, as contrasted with coasting voyages, whilst in the Italian Code, Art. 650, and Portuguese, Art. 641, there is a special provision for Average inter sese on goods so carried. But such a provision, if incorporated in all the Bills of Lading, would be valid enough in England, as the parties would in such case have contracted themselves out of the operation of the law, as laid down in The Royal Exchange Shipping Co. v. Dixon (12 App. Cas. 11), though in such case it would be a special contract between the parties, and not, properly speaking, a General Average contribution, and could not bind any shipper whose Bill of Lading did not incorporate the Rule, thereby giving rise to a fresh crop of difficulties in adjusting, if the Bills of Lading were not all in the same form.

Coming now to the first alteration actually made at Liverpool the second Rule previously related only to the special case of goods remaining on board being

damaged by water coming into the ship during a jettison; this is wisely altered and extended to include all damage done to ship or goods by the consequences of a General Average act. This was already the Law of France (Arts. 400 (5), 422, 426), Holland (Arts. 699 (5, 6, 23)), and other States; the desire probably was to bring the Rule into accordance with the very carefully-worked out Commercial Law of Germany, itself in very many respects an attempt, and a successful attempt, to codify the Law of England (see Lowndes on Average, 4th Ed., pp. 37, 426, and Germany Comm. Code, Art. 108 (1)). Passing on to Rule VI., it seems rather difficult to see why damage done by carrying a press of canvas to get a ship off the shore, or to run her higher up on shore, should be made good in General Average, when the same act, the ship being afloat, where performed for the purpose of escaping an enemy, keeping off a lee shore, or running ashore to avoid sinking in deep water, should not be. There is, however, this practical difference, that whilst the ship is afloat it would be very easy to make out and very difficult to disprove that any sail blown or spar carried away was sacrificed for the good of all concerned, whilst when the ship is on shore such a sacrifice requires no proof. The next Rule (VII.) is new, but applies and adapts in accordance with the practice of English Average Staters the principle of the previous Rule, as to damage to sails and spars, to engines and boilers.

Rules X. and XI., which take the place of the old Rule VII., go into much greater detail than that Rule. The matters with which it deals have been the subject of great controversy, both in this country and abroad, and the Law with regard to expenses in a port of refuge can only be said to have been settled here in quite the last few years by the two great cases of Attwood v. Sellar, 4 Q.B.D. 342, 5 Q.B.D. 286, and Svendsen v. Wallace, 11 Q.B.D. 616, 13 Q.B.D. 69, 10 App. Cas. 404, that is to

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