The Law of General Average

[...]

Introduction

[...]


iv

The principle on which is founded the entire law of general average (a) is simply this: When a ship and cargo are exposed together to the common perils of a maritime adventure, each shall run its own separate risk of such losses as are accidental; but, if a sacrifice either of property or of money is made for the sake of averting the loss of all, that sacrifice shall be replaced by the rateable contribution of all.
This rule is plainly equitable in a certain sense; that is to say, it makes obligatory that which would have been a fair bargain if entered into beforehand. It could scarcely, however, be said with truth that, as maritime commerce is now conducted, a rule opposite to this, were such laid down, would be actually unjust. It may indeed be doubted whether an oppositerule,—the rule, namely, that every loss, necessitated or justified by the perils excepted in an ordinary bill of lading, should, like accidental damage, be left to lie where it had fallen, -would not be really more consonant to the principles of the English common law. If the point were to be argued apart from custom or precedent, as one entirely new, it might well be contended that the English law, by analogy with what is done in other matters, should draw no distinction between those losses which result from the direct physical action of sea-peril, and those occasioned by an act of volition necessitated through such perils : that what a man is really obliged to do, to avoid a greater loss, must be 

v

treated as if he could not help doing it: that the old rule of a contribution for a mast cut away or goods thrown overboard may have been well enough adapted to the old times when the merchants were on shipboard with their wares, and when their reluctance to part with them, or the eagerness of each on such an occasion to yield precedence to others, had to be overcome or bought off; but that it was entirely unnecessary now that the captain has the sole charge and supreme command; the goods being entrusted absolutely to his custody, and the sacrifice of part, in order to preserve the remainder, being an act lying within the scope of his authority.
This way of viewing the subject may serve to explain a certain repugnance which every now and then shows itself on the part of one of two of our judges, when they find themselves constrained by the force of of precedents to assist in the development of this equity of foreign origin, which runs somewhat against the grain of English commercial legislation. 
But the common law of England is not a mere system of logical deductions from a few leading ideas. Our law, like our language, owes at once its excellence and its inconsistencies to the free absorption, especially in its earlier stages, of material from without. A large portion of our commercial law, it is well known, was imported directly, though disguisedly, from the Roman civil law. A large portion, again, was directly and avowedly taken from the then existing customs of mer- chants. Whether from profound wisdom, or, as is more likely, from mere contemptuous indifference, merchants were in the early days of English law permitted to frame their rules of dealing pretty much for them-

vi

selves ; the Courts, when questions of that kind came before them,being content merely to enquire what was the custom of merchants on the point, thus leaving to the merchants the legislative work of framing customs which should have the force of law.
Maritime customs have been noted for two qualities, -they are cosmopolitan, and they are tenacious of existence, to an extreme degree. "L'immutabilité, comme l'uniformité," says M. Pardessus, "sont presque de l'essence de la jurisprudence maritime." This owes its origin, no doubt, in a great degree to the conditions of maritime commerce in the times of antiquity and in the Middle Ages. For nearly two thousand years it was the practice for merchants to sail with their wares from place to place, in company with the master and owner of the ship. In modern Europe, the Crusades first gave a stimulus to sea-traffic, necessitating as they did what would now be termed a transport and sutlery service on a large scale, and bringing the different nations of Europe into close communication with each other. The same fusion of nationality was engendered by the practice of frequenting, at stated seasons, certain seaports which were marts or emporiums of commerce. Thus there were brought together, at intervals, the principals who could arrange together, with some authority, the rules by which their sea-traffic should be regulated. What was settled at such gatherings was naturally regarded as of a wider than municipal authority. Tradition ascribes to the Crusades the sanction thus given to the Rolls or Judgments of Oleron, and to an assemblage of merchants at the fair or roadstead of Wisby in the Baltic, the so-called Laws of Wisby;

vii

beyond doubt the most authoritative expositions of what has been termed the ancient "common law of the sea."