« PreviousContinue »
some of the heaviest goods belonging to others be thrown overboard and thereby the Ship and the rest of the goods comes (sic) safe home, the loss is made common and reparable by the whole.
“ Aequissimum enim est” sayes Paulus, “commune detrimentum fieri eorum, qui propter amissas res aliorum consecuti sunt ut merces suas salvas haberent”.'1
In 1787 Park published his System of the Law of Marine Insurances. Opening a chapter ‘Of Salvage,' this learned cominercial lawyer says:-'All maritime States, from the Rhodians down to the present time, bave made certain regulations, fixing the rate of Salvage in some instances, and leaving it, in others, to depend upon particular circumstances '2.
For this he cites the Jus Navale Rhodiorum, Part III. cap. xlv, xlvi, xlvii.
These chapters are thus summarized in a few words by Pardessus :--Des récompenses sont accordées à ceux qui sauvent les objets naufragés selon l'importance des objets et l'étendue des dangers qu'ils ont courus'3.
Could this code be shown to have reproduced the law of Rhodes, anticipating by more than 1,000 years the legislation of Justinian, the antiquity of the equity of reward to salvors would be established.
But proof of this to-day there is none 4. The most that can reasonably be suggested is, that at the date—whatever it may beof the appearance of these laws-known to bave been in existence in the twelfth century 5—such compensation was universal, and though finding no place in the Pandects, was by tradition accepted as part of the maritime law of the once powerful island of Rhodes.
Yet Pardessus did not doubt that the code was of considerable antiquity. With learning as profound as his industry was inexhaustible, the distinguished Frenchman examined and analysed every record to which for him access was possible, and concluded by awarding to some Mediterranean power in the ninth century A. D. the distinction of having originated these rules of Traffic on the Sea.
· Digest, Lib. XIV, Tit, ii, Lex ii, Ad legem Rhodiam de jactu.
7th ed. (Author's), 1817, p. 214. Park was raised to the Bench of Common Pleas, 1816; died 1838.
3 Collection de Lois Maritimes antérieures au xvine siècle, Paris, 1828, vol. 1, p. 227. The Greek text with Latin translation is set out at pp. 255 and 257. Pardessus says at p. 220 that the date of this compilation is unknown : 'Nous n'avons pas de renseignemens pour déterminer l'époque à laquelle chaque partie de la compilation a été rédigée ; nous connoissons seulement le temps où la troisième étoit certainement existante . . . Nous savons qu'elle existoit au xir siècle. . . . M. Schoell (Histoire de la Littérature grecque, t. vii
, p. 235) croit qu'elle a été rédigée au vio siècle mais il ne justifie point son opinion.'
* • Elles (les lois rhodiennes) ne sont point parvenues jusqu'à nous. Il suffit de parcourir les prétendues lois rhodiennes . pour être convaincu qu'elles sont apocryphes.' Emerigon, Traité des Assurances, 1783. Préf., 3e éd., par BoulayPaty, Rennes, 1827.
5 Pardessus (supra).
This Jus Navale was followed, in quick succession, by many others, of which among those appearing prior to 1200, there are three, which in importance and publicity have, by some, been thought to transcend their fellows.
These, with their approximate dates, are: Consolato del Mare, 1050; Constitutum usus Pisae, 1160; Les Rôles d'Oléron, 1200,
They are set out in extenso in the pages of Pardessus, where it will be seen that each system of law embodies rules and regulations in respect of salvage 1.
If then, including the four above referred to, it be true that all foreign codes of maritime law, both ancient and modern, contain provisions and enactments on this head'? (salvage), there is probability approximating to certainty, that such an obligation indissolubly attached to the res itself at risk must in the thirteenth century have been within the contemplation of the inventors of the system of insurance, and of the framers of their special form of contract for indemnifying an owner of property at sea.
Where in the policy is the expression of this obligation to be found? Conviction and consistency alike induce a course of reasoning which, set out in a recent number of this Review, may briefly be epitomized as follows.
The earlier English policies expressed the subject-matter of their contract, in respect of the thing insured, by the single word Adventure.'
Later policies introduced a perils clause, setting out in detail all those risks which up to that time had been embraced by this word.
The clause includes the risk of Jettisons ... and of all other perils.' These words impose upon the underwriter an obligation to contribute to general average as being of the same nature as contribution to jettison 3.
Since 1815, when Lord Ellenborough in Cox v. May proclaimed the analogy between salvage and general average, the Courts have not infrequently used language accepting, without reserve, the principle involved in the dictum of this learned judge.
And this, perhaps, never more clearly than in Briggs v. Merchant 1 Pardessus (supra). The sections re Salvage in the order in the text are to be found in vol. ii. 143, 253, and 338 ; vol. iv. 582 ; vol. i. 326, 346. With regard to • Les Rôles d'Oléron' the author gives reasons for thinking that the enactment, p. 326, may be an early addition to the original compilation. These laws, antedating the invention of the mariner's compass (circa 1260) and the modern development of steam power, but faintly foreshadow the stupendous salvage operations of the present day, and are chiefly concerned with “res quae inveniuntur in mari' and 'res ab inimicis vel praedonibus marinis captas.'
2 The law of Merchant Ships and Seamen, Abbott, 1802, 5th ed., 1827 (Author's), P. 397
L. Q. R. xxi. 155. 'Contribution to General Average of which the present inquiry is the logical outcome, and with which it is to be read.
4 M. & S. 152 at p. 159 ; 16 R. R. 422. VOL. XXII.
Traders Association (1849), where Lord Denman, having previously cited the passage in Cox v. May above referred to, in the course of his judgment said :- Contribution to salvage is in the nature of general average, it is subject to the same incidents, and is, in effect, the same.'
What, is the extent of the sameness of nature judicially acknowledged of salvage and general average, rules of the sea alike, and emanating—so thought at least one judge of the Court of Admiralty-from the same equity of the earlier laws of Imperial Rome ??
1. Though not contemporaneous, each is the creature of early maritime law 3.
2. The object of each is the rescue of property at sea from impending destruction.
3. By danger, each is called into existence, and by loss of the property, or attainment of its safety, this existence is determined.
4. Contribution to each is assessed on the net arrived value of the property saved.
Now although as regards salvage,
* Undoubtedly, the principle is to assess the value of the property, as salved, at the place whether port of destination or not--where, and at the time when, the salvage service terminates 4: and further, though this value must in the event of subsequent damage before arrival at destination be materially affected, it is not less undoubtedly the practice to assimilate the rule of salvage to that of general average by law established, and to assess the value at the port of destination 5.'
1 18 L. J. Q. B. 178 at p. 180 ; 13 Q. B. 174; 78 R. R. 347. · Law of Laws (supra). Wiseman presided over the Admiralty Court, 1673-1685.
Although this conception is inconsistent with the opinion prevailing to-day as to the Rhodian origin of General Average, it is an interesting indication of the probable attitude of mind of a lawyer of repute towards a question of the kind submitted in the text. It is true that the author does not in express terms refer to general average ; but the proposition here put forward is based on the theory that general average and jettison are ejusdem generis. See L. Q. R. (supra).
Gaius is thought to have written between the years 138 and 180 A. D., in the reigns of Antoninus Pius and Marcus Aurelius Antoninus [' about the time of the earlier Antonines,' Roby).
If, to-day, this statement stand in need of confirmation, it will be found in Lohre v. Aitchison (1879) 4 App. Cas. 755 at p. 760, where Lord Blackburn said : The liability of the article saved to contribute to General Average and Salvage ... is a consequence of the perils of the sea, first imposed, as regards General Average, by the Rhodian law many centuries before insurance was known at all, and, as regards salvage, by the maritime law, not so early, but at least long before any policies of insurance in the present form were thought of.'
4 Kennedy, Law of Civil Salvage, 1891, p. 188.
5 For the extreme effect of this rule where the salvage service has been succeeded by a total loss, see infra. It must not be supposed that the contributory values are in all cases the same. Where a salvage service has been followed by a general average sacrifice, this would not be so; because, for the purpose of salvage, all that has been saved is the property diminished in value by the amount of the sacrifice. While as regards general average this value is further reduced by the amount of the charge for salvage, but-on the principle in the text considered—with the value of the sacrifice restored to it. As regards salvage it would seem correct in
5. What has been sacrificed contributes equally, in proportion to its value, with what has been saved.
This requires amplification.
The underlying principle of general average contribution is well stated by Lowndes, who paraphrasing Arnould says:
• The contribution is to be so regulated as to make it in result immaterial to each, whose property shall in the first instance have been taken, whose money spent, or whose credit pledged for the safety of all. It is therefore a rule of general average that the amount made good in respect of property sacrificed is brought in as contributing rateably with the property preserved: so that the former pays the same proportion of general average as the latter 2.'
If this were not so, he whose property had been sacrificed would be indemnified in full at the expense of his co-adventurers, in comparison with whom, to the extent of his own share of the contribution, he would be in a preferential position.
Examination of the early codes reveals how fully justified is the statement by Abbott that 'this compensation ... known by the name of Salvage, and at present ... commonly made by payment of money
in the infancy of commerce was more frequently made by the delivery of some portion of the specific articles saved or recovered 3.'
And to-day, on the institution of proceedings in rem, the property itself may by the Court of Admiralty be arrested and if necessary sold, so to give effect to the maritime lien, and to satisfy the salvor's claim.
Seeing, then, that this compensation must be paid by an owner out of the res itself, if he would retain, or—as in the case of a derelict-regain its possession, salvage is a sacrifice as ample and complete as goods thrown overboard, or a mast cut away to lighten a ship in a storm.
Inasmuch, therefore, as it is not deducted but remains a component part of the assessable value of the property saved, salvage contributes to its own loss in as real a manner as jettisoned cargo in general average 4.
6. Where, ultimately, nothing has been saved, there is no contribution for property sacrificed.
Whenever a general average sacrifice is followed by a total loss of the adventure, the sacrifice has failed of its purpose, and the principle to deduct the general average expenditure. This, however, is not the practice, and might, perhaps, be repugnant to the priority of the salvor's maritime lien,
1 Law of General Average, 4th ed., p. 38; Arn. Ins., 2nd ed., p. 937.
* Similiter, Extraordinary expenditure, which in one way or another has to be met by the parties to a marine adventure, is made to contribute in General Average,
property destroyed but anticipated an inevitable fate. Destruction has overtaken the whole, and no part has in result been benefited at the expense of the remainder. Nothing has survived to contribute, and there is no contribution.
Successive judges of the Court of Admiralty have long established the principle, that no award for salvage can be maintained, unless some part at least of the property shall bave been preserved, and restored to its owner. And this once again in 1883 by Lord Esher M.R.:
* There is one element invariably required by Admiralty law in order to found an action for salvage : there must be something saved more than life, which will form a fund from which salvage may be paid ; in other words, for the saving of life alone, without the saving of ship, froight, or cargo, salvage is not recoverable in the Admiralty Court".'
Though the proposition under consideration may, so far, have been shown to be true, it is in attempting a more extended application of its principle that a fundamental difference between general average and salvage is revealed and accentuated. For a general average act may consist of a sacrifice, or yet again, of an extraordinary expenditure. Suppose that a vessel, the destination of which was London, were towed into a foreign port under circumstances entitling the tug owner to rank as a salvor in this country; and that the salvor holding himself deserving of a higher reward than the one stipulated for, and relying on the equitable jurisdiction of the Court of Admiralty-or for other reason-postponed the enforcement of his claim until the vessel should have arrived at her destination, and that in the meantime she were totally lost; the salvor—a salvage agreement notwithstanding-being unable to plead the one element invariably required by Admiralty Law in order to found an action for salvage' (The Renpor, ubi supra), would be deprived of his remedy, and his efforts however strenuous, however meritorious, must of necessity go unrewarded. Whereas, on the other hand, had the agreement been made by way of a contract of employment for reward, the same man--a salvor, strictly no longer-would at common law be in a position to compel recognition of his service, the loss of the vessel in no way preventing him, and his remuneration being an extraordinary expenditure incurred for the benefit of the common adventure, would be contributed for in general average ? The difference between these two forms of agreement is emphasized in The Renpor, where the facts taken from
The Renpor, 8 P. D. 115. See also Dr. Lushington in The Chieftain (1846) 4 Notes of Cases, 460.
2 The contributory values in such a case would be those sought to be saved.