(G.723), subject to modifications between two-thirds and half by the several States. In Holland on ship and net freight and cargo in full (H. 698, 727, 728), with a special provision with regard to goods in lighters and the lighters themselves. In Italy (I. 647), as in France, on cargo in full and on half ship and freight. In Norway (N. 75) on ship and cargo in full and on half the freight. In Portugal (P. 636) as in France and Italy. In Russia (R. 1075, and appendix thereto) on ship, freight and cargo in full. In Sweden, as in Norway, on ship and cargo in full (Sw. 159, 160) and half freight (Sw. 161). In Egypt, as in France, Italy and Portugal.

By the York-Antwerp Rules, ship, freight and cargo are to contribute on the actual net value, as has been the practice in England from time, in a mercantile sense, immemorial. See Lowndes on General Average, 4th Ed., 305,308.

Belgium (B. Bk. II. 100), France (F. 398), Holland (H. 697), Italy (I. 642), Portugal (P. 634 (2)), and Egypt (E. 237), in terms allow the parties concerned to contract themselves out of the rules of the respective Codes as to General Average and make special agreements, thereby letting in the York-Antwerp Rules if desired. It may be a serious question how far they can be made operative elsewhere when they differ from the law as laid down by the Code.

813. To bring expenses and sacrifices into the category of General Average, there must be an antecedent resolution on the part of the captain, after consultation with the mate and other ship's officers, and after hearing the opinion of persons interested in the cargo who are on board.

If these latter object, and the captain and officers, or a majority of them, or the captain himself, if in a minority, consider certain measures to be necessary, they may be carried out on the captain's own responsibility without prejudice to the right of the shippers to take proceedings before a Judge or competent Court to enforce their rights, if they think that he acted maliciously, or without proper skill and care. If those interested in the cargo on board the ship are not consulted, they will not contribute to the General Average that the captain incurs, unless the urgency of the case was such that there was no time for deliberation.

B. Bk. II., 116, F. 410, G. 485, 490, 491, 711, H. 699 (23), 367, 368, I. 508, 643 (19), 657, N. 72, P. 503, 655, R. 1077, 1091, Sw. 146. E. 245.

814. The result of the consultation which causes the General Average losses must be set out in the log-book,

stating the motives and reasons which brought it about, the votes to the contrary, and cause of the disagreement, if any, and the irresistible and urgent reasons that the captain has obeyed if he has acted on his own authority.

In the former case, the entry will be signed by all those present, who are able to write, and if possible before the act is done; and if not, then as soon after as possible. In the latter case, by the captain and officers. In the entry, following the result of the consultation, all articles jettisoned must be set out with precision, and mention. must also be made of damage done to articles remaining on board. The captain must send a copy of this document to the Maritime Judicial Authority of the first port he makes within 24 hours of his arrival, and must confirm it on oath.

B. Bk. II., 116, F. 412, G. 487, 490, H. 367, 368, I. 508, 657, N. 19, 20, P. 503, Sw. 146. E. 2471.

815. The captain will superintend a jettison, and give orders to cast goods overboard in the following order :(1.) Those which are on deck, commencing with such as

are in the way of the ropes and imperil the ship, and by preference, if possible, the heaviest and least useful or valuable.

(2.) Those which are stowed between decks, always commencing with the heaviest and least valuable,

and going on as far as the quantity and number of articles is absolutely essential.

F. 411, H. 368, I. 645, N. 69, R. 1077, Sw. 148. E. 246.

Belgium, Germany, and Portugal seem to have no special arrangements on this point, which seems to be only an expression of what common sense would teach any seaman.

816. For the purpose of claiming General Average, and having a right to compensation, owners of goods thrown. overboard must, as to cargo, prove its presence on board by a Bill of Lading, and as to ship's furniture, by the

ship's Inventory drawn up before sailing, in conformity with the 1st Clause of Art. 612.

B. Bk. II., 109, F. 420, G. 710 (2), H. 732, I. 649, 656, P. 640, R. 1086, 1089, Sw. 150 (3-4). E. 255.

817. If a vessel is lightened in consequence of bad weather, to facilitate her entry into a harbour or roadstead, and any part of the cargo is transshipped into lighters or barges and then lost, the owner of such part is entitled to compensation as though the loss was a General Average loss, the burden being distributed over the whole of the ship and cargo of which it formed part.

If, on the other hand, the goods transshipped are saved and the vessel is lost, that which is saved incurs no liability.

F. 427, G. 708 (2), H. 699 (14, 17), 702—705, I. 652, P. 643, R. 1083, 1084, Sw. 143 (1). E. 264.

818. If it is necessary, for the purpose of preventing the spread of a fire in a harbour, roadstead, creek or bay, to determine to sink a vessel, the loss will be deemed as General Average, to which the other vessels that are preserved will contribute.

There seems to be no similar provision to this in any of the Maritime Codes, and though the idea is no doubt equitable, there would seem to be insuperable difficulties in enforcing it, except as against vessels all belonging to the same port.

SECTION II.

Concerning Putting into Ports of Distress.*

819. If the captain is of opinion in the course of the voyage that the vessel cannot prosecute her voyage to her port of destination on account of provisions running short, or from a well-founded fear of detention, privateers or pirates, or from any accident of the seas which disables the

* Spain and Portugal are the only States which have a special section of their Codes devoted to this subject; the rules respecting it in other States are more general,

vessel, he must call the officers together and summon those interested in the cargo who are present on board, and who will assist at the conference without a right to vote; and if, on examination of the circumstances of the case, the captain's opinion is considered to be well founded, he will be permitted to make for the nearest and most convenient port, a proper statement being drawn up and entered in the log-book and signed by all.

The captain retains a deciding vote (voto de calidad), and those interested in the cargo may make such claims and protests as they think fit, which will be set out in the statement for such uses as they may legally serve.

B. Bk. II., 35, F. 245, G. 485, 505, 708 (4), H. 367, I.M.M.C. 94, P. 654, 655, R. 912, Sw. 819. E. 245.

820. The putting into a port of distress will not be deemed legitimate in the following cases :

(1.) If the failure of provisions arises from the ship not having been victualled for the voyage in accordance with use and custom, or if the provisions have been rendered useless or lost by being badly stowed or not properly looked after.

(2.) If the risk of enemies, privateers, or pirates is not recognised as obvious and well founded on actual facts capable of proof.

(3.) If the defect in the vessel arises from her not having

been properly repaired, furnished, equipped, and fitted out for the voyage, or from any imprudent arrangement of the captain.

(4.) Whenever malice, negligence, want of foresight, or want of skill on the captain's part give rise to the circumstance which causes the loss.

B. Bk. II., 103, H. 700, I. 646 (4), P. 657, 658.

821. The expenses of putting into a port of distress will in all cases fall on the shipowner or charterer, but these persons will not be liable for losses which may ensue to the

shippers by reason of the putting in, provided always that it is legitimate.

If not legitimate, the shipowner and captain will be jointly liable.

B. Bk. II., 103, I. 643 (10), 646 (4), P. 656, 659.

Cf. York-Antwerp Rules (1890), 10-12, which again differ from the practice in England as deduced from the two recent leading cases of Attwood v. Sellar, 5 Q.B.D. 286, and Svendsen v. Wallace, 10 App. Cas. 404, by the Average Adjusters' Association in 1886. These are respectively as follows:

Rule X.-Expenses at Port of Refuge, &c.-(a.) When a ship shall have entered a port or place of refuge, or shall have returned to her port or place of loading in consequence of accident, sacrifice, or other extraordinary circumstances, which render that necessary for the common safety, the expenses of entering such port or place shall be admitted as General Average; and when she shall have sailed thence with her original cargo, or a part of it, the corresponding expenses of leaving such port or place, consequent upon such entry or return, shall likewise be admitted as General Average. (b.) The cost of discharging cargo from a ship, whether at a port or place of loading, call, or refuge, shall be admitted as General Average, when the discharge was necessary for the common safety or to enable damage to the ship, caused by sacrifice or accident during the voyage, to be repaired, if the repairs were necessary for the safe prosecution of the voyage. (c.) Whenever the cost of discharging cargo from a ship is admissible as General Average, the cost of reloading and storing such cargo on board the said ship together with all storage charges on such cargo shall likewise be so admitted. But when the ship is condemned or does not proceed on her original voyage, no storage expenses incurred after the date of the ship's condemnation or of the abandonment of the voyage shall be admitted as General Average. (d.) 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 transshipped by another ship, or otherwise forwarded, then the extra cost of such towage, transshipment, 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.

Rule XI.-Wages and Maintenance of Crew in Port of Refuge, &c.—When a ship shall have entered or been detained in any port or place under the circumstances, or for the purposes of the repairs, mentioned in Rule VII., the wages payable to the master, officers and crew, together with the cost of maintenance of the same, during the extra period of detention in such port