
    Gray and others against Waln.
    Where a vessel isvolun* tarily run ashore, with a view of pre- • serving as far as possible both ship and cargo, and in •consequence thereof is lost5 ; the loss is to ’ be repaired by , a general average.
    1 The value ofa vessel lost under circum- ’ stances which , entitle her to contribution ia i general average, is to be estimated at the price she would have borne, in the place where the voyage comraenced, deducting the expense of carrying her there, and making a reasonable allowance fdi* any deterioration she may have suffered up to the time when the loss happened.
    « JVfiere the consent of the merchant to accept his goods at an intermediate p.ort, inay be fairly irtferred froiti his actions, freight pro rata, is due.
    
      ASSUMPSIT to recover freight pro rata, for the transportation of the goods of the defendant in the vessel of the plaintiffs, and also, to recover the defendant’s proportion of a general average, arising from the voluntary stranding and subsequent loss of the vessel. • e
    The cause was tried before Judge Yeates, at a Court of Nisi Prins, held in December, 1815, when it appeared, that the defendant, Robert Wain, on the 18th September, 1812, shipped on board the Apollo, Captain Bell, belonging to Messrs. Gray and Taylor, 170 barrels of flour, 169 barrels of rye flour, and 18 barrels of middlings, consigned to Jesse Wain, the supercargo on board, in Cadiz, who, in his letter of instructions, was directed to use his best endeavours | to ; ’ , 1 ’ , i dispose of the cargo consigned to him for the highest price. The freight to be paid, was 2 dollars 75 cents per barrel, and 5 per cent, primage. The Apollo sailed from Philadelphia on the 20th September, and after having met with heavy gales, was captured by the Grampus, a British ship of war, and carried into Gibraltar, whepe she arrived on the 1st No~ vember. On the 10th December, she -was released upon paying the captors’ expenses. On the 28th December, after- having obtained convoy to proceed to Cadiz, she was assailed by a violent storm, during which she was run foul of by a large English ship, when she cut her cable and went ashore at San Felipe. Sail was then put on in order to force her up on the beach, and save the cargo. The storm continued until the 31st December, during which period, the vessel was constantly thumping. It then moderated, and on the 1st January, 1813, she got a cable and anchor from the shore. By lightening her, and by constant labour she was at length got off, and on the 7th January she floated into Algesiras, where the cargo was completely unladen, in tolerably good condition. Captain Bell then petitioned for a survey, which was granted, and the surveyors reported, that the Apollo could not be repaired at an expense less than her whole value. In consequence of this report, a petition was presented for leave to sell her, which was decreed, and a sale accordingly, took place, when the vessel sold for 4210 dollars, the whole of which was absorbed by the expenses, except 200 dollars 45 cents.
    On the 31st December, 1812, the supercargo wrote from Gibraltar to Messrs. Gray and Baylor, informing them of the gale, and that the goods would-be sold at Algesiras. On the 7th January, following, he again wrote to them, inclosing a protest; and said he should determine., whether to sell at Algesiras or not. On the 26th of the same month, he wrote to those gentlemen, from Cadiz, informing them, that he had limited the sales to 17 dollars a barrel, which was a better price than the Cadiz market would afford. In a letter of the 14th February, he says, that he finds he shall be obliged to ship the flour to Cadiz, and in one of the 28th of the same month he writes, that the markets at Cadiz are-bad, notwithstanding which he may be obliged to send the fldur -to that place. Afterwards in a letter of the 24th March, 1813, to Captain Bell, he says, that he supposes the freight wijl have-to contribute a proportion, and that he thinks it mpst correct 
      to remit the whole to Messrs, Bainbridges and Brown of London, on account of the joint concern, subject to the orders " of Gray and Taylor, or Robert Wain. By the -account sales of the cargo, it appeared, that it had been sold at Algesiras by the order of Jesse Wain, and had producéd the nett amount of 22,398 dollars 18 cents which he received.
    It was proved,-that the stranding was voluntary and deliberate, and necessary for the preservation of the Cargo.
    On the bill of lading was an indorsement in the hand-writing of Jesse Wain, to this effect: “ In consequence of the “ cargo being landed at Algesiras, I have agreed to a deduc- “ tion of 40 cents per barrel on freight. 23d March, 1813.” -Signed, “ Peter Bell, Captain.” It also appeared from the account current between the plaintiffs and the defendant, drawn out by the supercargo, that he had paid SO pounds sterling on account of freight. Mr. Jesse Wain, however, who was examined before arbitrators in this cause, and whose testimony was read from the notes of counsel, declared, that he would not settle the freight at Algesiras, and that he paid nothing for freight. And another witness, who was examined at the same time, said, that Captain Bell and the supercargo agreed, that the freight should be settled in Philadelphia, and that the indorsement'on the bill of lading was to settle t,he freight from Algesiras to Cadiz.
    
    The Apollo was a new vessel, built in the year 1811, and purchased by the plaintiffs in the same year for 13,600 dollars. From the sums at which she had been valued by the different insurance companies with whom she had been insured, from that time until the year 1812; from the sums paid by individuals, who at different times had purchased shares in her, and from other circumstances it appeared, that -her value when she sáil-ed from Philadelphia, was about IS,000. dollars. But it appeared from the testimony of several wit-' nesses, that at Gibraltar she could not have been sold for -more -than from 6,000 to 8,000 -dollars.
    At -the trial the Jud-ge reserved the point, whether, where the ship-is lost, the property saved is liable to contribution -in general average. It was then agreed, that the following points should be decided by the jury.
    1. W-hat freight, if any, was due on the defendant’s shipment in -the Apollo.
    
    
      ' 2': At what sum per barrel the freight was to be estimated in the general average.
    
      3. Whether the Apollo was to contributed for.
    4. At what value she was to be contributed for.
    5. From what time interest was to be charged on the amount of the general average due to the plaintiffs.
    It was further agreed, that the principles settled by the jury as to general average, if they found it a case of general average, should be referred with the accounts to J. Donald~ son, who should adjust the average in conformity, and that the amount due from the defendant to the plaintiffs by his adjustment, should be added to the amount of freight, if any should be found by the jury, and judgment entered for the whole; or if no freight should be found, then judgment should be entered for the amount of the general average. The right of either party to move for a new, trial was not to be prejudiced by the agreement.
    Judge Yeates charged the jury.
    1. That where the voyage has been broken up by events beyond the controul of the ship-owner or his agent, and the agent of the shipper voluntarily receives the goods at an intei'mediate port, the law implies a new contract for the payment of freight pro rata itineris: and that where the agent of the shipper abroad, is not desirous that the cargo should be carried to the port of original destination, it is not necessary that the Captain should offer to ship the goods in other vessels for that purpose. He submitted to the jury, whether under the circumstances of the case, Mr. Jesse Wain had authority to receive the cargo at Algesiras, axxd whether he did voluntarily receive it; intimating jxis own opinion, both that the supercargo possessed such authority and that he ex-ei'cised it. ‘
    2. He submitted to the jury, whether there were in this case such deliberation, and such voluntary acts on the part of the Captain, as coxxstituted a case of general average; assuming the law to be, that if thex-e were, the ship, though lost, was to be contributed for; that being the point reserved. He at the same time expressed his opinion, on the authority of Sims v. Gurney, 4 Binn. 513. that this was a case of general average.
    3. That the value of the vessel was to be estimated according to what she was worth, when she sailed from her port of departure, making a reasonable allowance for any detei'ioration she might have suffered by wear and tear, up to the timfe when the loss took place.
    Under‘this direction the jury found the following verdict.
    1. Due for freight, 1225 dollars 5 cents.
    2. Freight per barrel, to be estimated in the general average, at 2 dollars 30 cents.
    3. The Apollo to be contributed for,
    4. At the value of 12,000 dollars.
    5. Interest on the general average from August 5th, 1813.
    The defendant’s counsel then moved for a new trial,
    1. Because, under the circumstances of the case no freight was due.
    2. Because, the vessel was valued by an improper standard.
    Chauncey, for the plaintiffs,
    on the reserved point, which was first argued.
    The jury having found that the loss was suffered deliberately and voluntarily for the common safety, the point reserved presents a simple abstract question of law, whether, where a ship is totally lost, that part of the cargo which is saved, is bound to contribute in general average. - As there are contradictory judicial decisions on this question, it must be decided upon the general principles of justice and of maritime law. Contribution by what is saved, towards repairing the loss of what is' sacrificed for the common advantage of the whole, is so clearly founded in natural equity and commercial expediency, that the rule has probably prevailed from the infancy of commerce. Its existence, however, cannot be traced beyond the Rhodian law de Jactu, which ordains, that “ if goods are thrown over-board for the sake of lightening “ the vessel, as it is done for the good of all, all must come “ into contribution for the same.” 3 Hall’s Law Journal, 14. Though the words of this law are confined' to cases of jettison, yet the principle upon which contribution is put, is of much greater extent, and embraces every case in which the property of some of the parties interested in the voyage, is sacrificed for the general benefit of all. The jettison of part of the cargo, being more frequent than any other species of sacrifice, is mentioned by way of illustration, but it does not exclude other cases. The principle of the law of Rhodes is the root from which the whole doctrine of marine contrifomion has sprung, and although it has been received with different modifications in the codes of different nations, yet it is the great star by which they are all guided. As a necessary consequence of this rule, many cases exist which call for contribution, not expressly provided for by the law of Rhodes. Where a vessel is voluntarily stranded for the purpose of saving the cargo and the lives of those on board, it is universally admitted, that the expense of floating and repairing her, is to be paid by the contribution of all who are interested in the voyage. If then a partial injury arising from stranding, is the subject of general average, what reason can be giv.en why an injury which extends to the total destruction of the thing exposed for the common safety, should not be so also ? Three things are necessary to constitute a general average. First, That the ship and cargo should be placed in common danger. Second, That a sacrifice should be made to avert that danger. Third, That safety should result from the sacrifice. At the commencement of the voyage the master and the merchant have distinct interests, but when the property of both is exposed to. a common danger, these distinct inter rests become common. The ship, the cargo, and the freight are thrown into one mass, and made to contribute to the alleviation of the injury sustained. The lost property itself is valued, and bears its proportion of the loss, which is equally distributed among all concerned. The test by which the. question of contribution is to be tried is, whether the sacrifice was made for the. general safety, whether proper means have been pursued, and whether those means have produced the result intended. The same principle which would command contribution, where a part of the cargo is sacrificed for the safety of the ship and the rest of the cargo, would call for it where a jettison is made of the whole of the property on board. Such a case is not indeed likely to occui-, but upon the principles which form the basis of maritime contribution, it cannot be doubted that this is the law. The same reason extends to the ship. In a time of imminent danger, she is exposed to hazard, with a view to save the cargo and the crew; and if a partial loss sustained with such a motive, fie entitled to contribution from the property saved, why should not that which has been preserved by the total destruction of tjie vegr-. •Sel, contribute to repair the loss which has caused its safety ? Why deny to the owner that compensation for a great loss, which it is universally admitted he is entitled to, in case of a small one ? The equity of contribution for a great loss, is in fact greater than for a small one ; for it would be a monstrous doctrine, that the more a man sacrifices for the benefit of others, the less he shall be remunerated. bjTor is its policy less obvious ; for if the total loss of the vessel is not to be brought into .general average, there can be no motive to induce the master to expose her to such danger as may involve her destruction, although by doing so he may save the cargo. How is it possible, in time of imminent peril, to ascertain what will be the extent of the injury the vessel may sustain? She may accomplish the object for which she is exposed, by an inconsiderable sacrifice, or it may lead to her total destruction. On what principle of equity or of law, therefore, can the question of average be made to depend upon the mere accident of her escaping shipwreck ? .
    How does the matter stand upon authority ? The seventh article of the ordinances of Konigsburg, (2 Magens, 200.) expressly provides for this case. It ordains,.that if the master, after consultation, in order to save the cargo and prevent further damage, runs the vessel ashore, by which she is totally lost, the goods thus saved shall contribute to the ship. According to the second fragment of the naval laws of the Rhodians, which was adopted by the, Romans, and inserted by Justinian, in the eleventh book of the digest of the Roman laws, it seems that if the vessel be damaged or even lost by accident, she is entitled to contribution from what is saved. (Art, 9, 10. 27. 30, 31. 35. 40, 41. 43. Sea Laws, p. 91. 93. 102. 104. 107. 110, 111.) Voet, (Com. ad Pandect, b. 14. tit. 2. s. 8. p. 690.) lays down the law, that if the ship for the purpose of saving the cargo, is run ashore, by which she perishes, but the cargo is saved, there shall be contribution. The decision of the maritime Judges of Amsterdam, reported by Bynkefshoek, (Bynk. Quest. Jur. Priv. b. 4. ch. 24. tit. de Jactu, p. 424.) is as far as it is entitled to weight, an authority against this doctrine. Their decision was, that where a vessel is voluntarily run ashore, the goods saved shall not contribute, unless the vessel be saved. The reasons, however, upon which this decision is founded, are contradictory and absurd. The case put is, that of a vessel voluntarily 
      stranded, and yet the reason given is, that the stranding was not voluntary. They add as another reason for their opinion, the rule that there shall be no contribution, where the vessel is lost; thus drawing an inference from the Rhodian law with respect to the ship, which applies wholly to an ineffectual jettison. If after a jettison is made, the ship be lost, the object of the jettison is not attained. If is perfectly obvious, therefore, that there should be no contribution. But the case is widely different where the vessel is lost in accomplishing the object for which she is exposed. The goods are saved by the sacrifice of the ship, and it would be contrary to common justice as well as to the principles of marine contribution, that they should not pay the price of their safety. The opinion of these Amsterdam judges, therefore, merits little regard, and is condemned by Bynkershoek.
    
    “ Si pour éviter une perte totaled says Valin, 168, “ le naultfraS'e étant éminent, le capitaine prend le parti de faire “ échouer le navire, le dommage que le vaisseau aura souffert “ et causé par la, sera avarie grosse et commune.'” Whether if the damage extend to the total destruction of the vessel, it shall be brought into average, is not expressly stated; but it is impossible to set limits to accidents of this kind, and the reason applies with at least equal force to a great and irremediable injury as to one of a partial nature. Browne, (2 Browne’s Civ. and Adm. Law, 199.) like all other writers on this subject, declares the great test in questions of average to be, the voluntary and successful exposure of part of the property for the general safety; and although, he says,it has been disputed, whether the cargo is bound to contribute where the vessel has been lost, because the rule was, that there should be no contribution unless the vessel is saved, yet he says, it was truly held, that it would be absurd to apply this rule to a case in which the vessel was purposely run ashore to save the merchandise, and that with success.
    These principles have been fully recognised by some of the most respectable tribunals of our own country. Sewall J. in delivering the opinion of the Court in Whitteridge v. Norris,
      
       declares the requisites of a case of general average to be, “ a contract, by which distinct pi'operties of several persons become exposed to a common peril, and a relief from ^ that peril at the expense of one or more of the concerned, “ who, thereupon, are entitled to a contribution from the rest; “ provided the benefit was intended, as well as obtained for “ them, at the peculiar hazard, or by the destruction of the “ property lost.” In a late case in the Circuit Court of the United States for the Pennsylvania district, the case of Caze v. Richards,
      
       the question now in controversy was upon so
      lemn argument expressly decided. After a very learned and laborious examination of the subject both upon principle and upon authority, Judge Washington determined, that where a vessel is voluntarily run ashore and lost, with a view to save the lives of the crew and the cargo, the property saved must contribute to the loss ; an opinion which Judge Story in a note to his edition of Abbott, 335, had previously expressed.
    Rawle, for the defendant.
    This very important question now comes before this Court for the first time, and when such men as constitute the Supreme Court of the state of New Tork, and the Circuit Court of the United States for the district of Pennsylvania, have held opposite opinions, the interest of the present discussion is proportionably increased.
    
      There is something so popular and fascinating in the idea of general average, it seems at first view to be so much connected with the strong impulses of a benevolent feeling, that heavy losses should be alleviated by being distributed among many instead of being confined to one or a few, that jurists ought to be more scrupulous in such cases to avoid sacrificing the justice of the case, and the truth of the principles on which it ought to rest, to the mere sensations of the heart.
    But in gratifying benevolence we are not to lose sight of justice. The law founded on principles which ever ke.ep in view the individual rights of all men, leaves undisturbed the individual inclination to afford relief to others ; but it never compels the exercise of those charities against the rights which it professes and is bound to protect. It examines into the contracts of the parties, and it is only when a just analysis of the contract establishes a right in favour of, or against the applicant, that its power is legitimately exercised.
    In the present instance the contract is definite. For carrying the goods to the port of destination, a certain sum is to be paid, and in consideration of this promise on the part of the shipper, the owner of the vessel binds himself to provide a competent vehicle, to be conducted by persons of competent ability; that is, he is bound to provide a vessel in all respects sea-worthy, as the phrase is understood in respect to insurers. If he fails in this, he has no claim upon the shippers, and they would have no claim on their underwriters.
    To guard himself from loss, he causes his vessel, and, if he thinks proper, his expected freight, to be insured for his own safety. No cause can be suggested in support of a claim of general average against the shippers, which would not constitute a just claim against the underwriters on the ship and freight or one of them. Those insurers receive their premiums for the risk; but what premium is received by the shippers of goods ? When the contract made with them is not fulfilled by the owner of the ship, without any fault indeed on his part, and therefore without making him liable in damages to them, but also without any fault on their part, the law would be rigorous indeed if they are to submit, not only to the loss, of their intended market, but also to bear a part of the original cost of the vessel.
    ’The Rhodian law, which is relied upon as the parent of maritime contribution, is merely a statutory provision, and all the decisions on it are but commentaries upon the statute. It was not introduced into the common law of England, as appears from Mouse’s case,
      
       and Bird v. Astcock, where it was determined, that if goods be thrown out of a barge for the purpose of lightening her, the loss must fall upon the owner of the goods. It is not, therefore, entitled to so much weight as- if it formed part of the general commercial law of nations; nor is its meaning to be stretched beyond the fair import of its words. Agreeably to the opinions of th’e best writers, and to the most respectable authorities on this subject, it may be laid down, that contribution is due where a sacrifice is designedly made of apart or parts of the ship or cargo, with the sole view of saving the rest of the ship and cargo, and that sacrifice is attended with success. The intention to sacrifice must be sincere. Cleirac, Us. et Cout. de la Mer. 25. The motive must be the general good of the whole, pure and unmingled with any other view ; for if the object in exposing the property be to place it in a situation of less danger than it was in before, and in seeking its own safety it encounter destruction, there can be no contribution. It is not destruction alone, but an intention to destroy coupled with destruction, which .gives rise to contribution. Success, too, must attend the effort. The object of the sacrifice is the continuance of the voyage. If the ship be stranded and got off, the voyage is prosecuted, and the ship, the cargo, and the freight must all contribute to the expense of restoring her to a situation in which she may be able to proceed to her port of destination. But if she cannot be got off and repaired, the voyage is at an end; the connexion between the ship and cargo ceases, and each must take care of itself. The loss of the ship in such a case is to be made good by the underwriters, not by average.
    The Apollo was a general carrying ship, not under charter party, nor bound by any contract varying the duties of her master from those of a common carrier. These duties, which apply as well to captains navigating vessels to foreign ports, as to the masters of boats and wagons used for the transportation of goods within the country, oblige the carrier to deliver the goods according to his contract, from which he is excused only by the act of God, or of public enemies. He is under no obligation, however, to sacrifice his vessel. If she be stranded and can ,be got off, the expenses incurred to set her afloat are very properly to be paid by general contribution, because the cargo is thus enabled to reach its destined port. But if the master think proper to run his vessel ashore and destroy her, he surely cannot call upon the shippers to remunerate him for a loss occasioned by an act which was purely voluntary, and which his duty to them did not require him to perform. By his contract, the carrier is the insurer of the goods except in certain events, but he cannot by an act of his own, make the shippers insurers of his vessel. Abbott, (Story’s edit.) 253. 287. Elliott v. Rossell.
      
       Bell v. Reed.
      
       Jones on Bailments, 104. Code Napoleon de Commerce, 44.
    
    Both English and foreign authorities, in treating of the subject of general average, suppose the safety of the ship Marshall, (2 Condy’s Marsh. 535, 536.) expressly declares, that contribution is only due where the sacrifice is successfully made for the preservation of the skip and the rest of the cargo. “ A loss,” he says, “ which does not evidently « conduce to the preservation of the ship and cargo, is not a proper ground for a general contribution.” Again, “ So, it 
      u must appear, that the ship and the rest of the cargo were in fact saved.” (Id. 537.) And in explaining the reasons of this doctrine he declares it to be a general rule, that contribution is only, due where the ship and remaining cargo have been preserved from the peril to which they were exposed. (Id. 538.) In Molloy, p. 3. sect. 4. and p. 10. sect. 12. it is said, that there is no contribution unless the ship arrives in safety; the object of the sacrifice being the preservation of the ship and the rest of the cargo. And Beawes, (Lex Mer. 164.) lays down the law in the same manner. In Birkley v. Presgrave, the preservation of the ship and cargo is spoken of as the foundation of average. Parke, in his Treatise on Insurance, 121.123. treats the subject of average as only due where the vessel is saved from the peril. He expressly states the cutting away masts or cables to be the subject of contribution, but like Marshall and most other English writers, seems to consider the preservation of the vessel as essential.
    An examination of the rules of foreign ordinances, and the opinions of foreign jurists will shew, that according to the majority of them the question of general average depends upon the salvation of the body of the vessel. The Rhodian law de Jactu (Dig. b. 14. tit. 2. 1. 5.) declares, “ Atnissce na- “ vis damnum, collationis consortio non sarcitur per eos, qui ilmerces suas naufragio liberaverunt; nam hujus cequitatem “ tunc admitti placuit, cum jactüs remedio, cceteris in communi “periculo, salud navi, consultum est.” And again, (1.7.) “ Cum u depressa navis, aut dejecta esset, quod quisque ex eá suum “ servasset, sibi servare respondit, tanquam ex incendioP Le Guidon, (art. 21. 23. Cleirac, p. 131, 132.) states the cutting away of the masts, cables, and other appurtenances of the ship to be general average, but no where declares, that the loss of the vessel is to be made good by contribution. On the contrary, the 28th article declares, that if goods are put into lighters and saved, and the ship is lost, the goods saved shall not contribute, for there is no average but where the ship is saved. Les fugemens d1 Oler on view this subject in the same light. The 8th article (Cleirac, 18.) declares the authority of the master to make a jettison of part of the cargo, upour sauver le reste et le cores de la nee.” The 9th article (Cleirac, 24.) says, that if the master be compelled to • cut away his masts in order to save the ship and goods, there • shall be contribution. And Cleirac, in his note to this article (p. 25.) observes, “ II faut que I intention sincere, et la- visée “ de ceux qui ont deliberé, et qui font le jet ou PAvarie grosse, “ soit la conservation de leur vie, du navire, et des marchan- “ dises restantes,pour le salut, etpour éviter le peril eminent a “ tons; hors lesquels cas iln'y a point de contribution a faire." And again in page 26. “ Apr¿s le naufrage fait entierement, “ il n’y a pas de contribution a faire entre les marchandises re‘ couvrées et péchées avec ¿es perdues, mais sauve qui peutP Huberus, (2 Hub. 429.) lays down the rule “ amissa nave, “ nulla fit contributio” broadly, and although he does not expressly say, that if a vessel be intentionally run ashore and lost there shall be no contribution, yet he does not make suc.h a case an exception to the rule ; it must therefore be considered as embraced by the rule. Emerigon goes further and expresses his opinion directly upon the point in controversy. After laying down the general rule that there is no contribution where the ship is lost, he says, that if the vessel be voluntarily stranded for the common safety, there shall be average, provided she is put afloat; for if the stranding be followed by shipwreck it is then sauve qui peut. Emerigon, 612. The Ordonnance de la Marine of Louis XIV. art. 6. makes the expenses of setting a vessel afloat gross average, and Valin, in his commentary on it, says, that if to avoid a total loss when in great danger of shipwreck, the master strands his vessel, the injury she sustains it to be compensated by contribution 5 but not a word is said of a total loss in consequence of stranding, which must therefore be regarded as excluded. (2 Val. 165. 168.) Upon the same principles, the expenses of a captured vessel are average, only in case she is restored. (1 Emerigon, 631.) The ordinances of Stockholm, (2 Magens, 279. 284.) of Copenhagen, (2 Magens, 332.) and of Rotterdam, (2 Magens, 97.) all contemplate the preservation of the ship, and provide for an injury sustained by stranding with a view to the general safety, but not for a loss. And the code Napoleon de commerce, 83. not only says, that the expenses incurred to set afloat a vessel stranded with intent to avoid a total loss or capture, fall within general average, but expressly declares, that goods never contribute to the payment of a vessel destroyed or rendered unfit for navigation. (Art. 400. 425.) If the loss of the ship forms a legitimate ground for contribution, there would be some standard by which her value is to be estimated, yet no instance can be produced in which an estimate of the value of a vessel stranded and lost in order to save the cargo has been made. We have, however, various rules for ascertaining the value at which a ship is to be rated, where she has been partially injured by stranding. These rules' differ in different countries, and it is unnecessary to enumerate them.
    The ordinance of Konigsberg, it must be admitted, is directly on the other side of the question 5 but it stands alone, and its operation is confined to the navigation of Prussia.
    But we have, in favour of our position, express adjudications both of our own and of foreign Courts. The decision of the Dutch judges reported by Bynkershock, (424.) is directly upon this point, and though it may not correspond' with his opinion, it is entitled to moré weight than the abstract opinion of that or any other jurist, inasmuch as it is the judgment of a competent tribunal, upon a point presented for their determination, In Neto Tori, this question has been put to rest by the case of Bradhurst v. Columbia Insurance Company,
      
       where Kent C. J.'in delivering the opinion of the Court, reviews the whole law of marine contribution, both upon principle and upon authority, and substantially declares, that to make the cargo saved come into general average to repair the loss of a ship voluntarily stranded, is not within the language or the equity of the law of Rhodes, and is contrary to the general doctrine of the maritime law.
    Opposed to this doctrine are the authorities already noticed, the opinions of Voet and of Judge Story, whose authorities certainly do not bear them out, and also the opinion of Judge Washington, in the case of, Caze v. Richards, which merits an attentive examination. (Mr. Rawle here entered into an analysis of Judge Washington’s opinion.)
    The broad ground upon which Mr. Chaunccy has rested his argument, that in time of imminent danger, all interests which were before distinct, are thrown into a common mass, and that where a part is sacrificed the remainder must repair the loss, is altogether unfounded. The lives of the crew and passengers, the safety of whom is always the primary object of the sacrifice, never contributej nor do their private effects, nor the provisions or ammunition of the' vessel; nor the wages of the crew, except in case of ransom. (Abbott, 394, 395.) And if goods shipped on deck be ejected, it is undeniable that they cannot be brought into general average. Smith v. Wright.
      
    
    Binney, in reply.
    The law of Rhodes cannot be considered as a statutory provision, confined to the cases specially provided for. It contains a broad general principle, extending to every voluntary and successful sacrifice, either of ship or cargo, for the benefit of all concerned. The acknowledged ingredients of general average have already been stated to be, 1. A common danger. 2. A sacrifice to avert that danger. 3. Success attending that sacrifice. With respect to the first, nothing more need be said. The second and third have been placed in several points of view, the propriety of which cannot be admitted. It has been contended, that there must be an intention to destroy a part in order to save the rest. This certainly is not necessary. In time of imminent danger the object is to avoid a great evil to the-whole adventure, by exposing a part to certain injury, and to probable or possible destruction; but it is proved by a great variety of cases which confessedly come within the rule of general average, that there need be no intention absolutely to destroy the thing exposed. When goods are placed in lighters, the intention is, if possible, to save them: When goods are thrown overboard in a storm, though they are exposed to probable destruction, yet the design is not to destroy them: When a cable is cut in a harbour, there is always a hope of recovering it; yet in all these cases, if the destruction of the thing exposed follow, contribution is due. When a vessel is stranded, the intention is not to destroy her, but to expose her for the general good, and if in consequence of stranding she is lost, she is equally entitled to contribution.
    Nor is it necessary, as the opposite argument supposes, that the sacrifice be made with a view of prosecuting the voyage. It is made in a moment of great danger, to avoid impending destruction, not in reference to any thing so remote and improbable as the successful termination of the •voyage. If the completion of the voyage be essential to á -case of contribution, it would be necessary,' not only that the vessel should escape from the danger to avert which the sacrifice was made, but that she should conquer every obstacle in the way of her safe arrival at her port of destination. This was never the law. A great variety of cases might be adduced, in which contribution is unquestionably due, although the voyage is never completed. If goods are thrown overboard in a storm, in consequence of which the vessel is then saved, but she is lost in a subsequent storm, the property preserved is, without doubt, liable to contribution for the first jettison, notwithstanding the loss of the voyage. If a vessel loses her masts and cannot replace them : If she be stranded, and while undergoing repairs, the season passes away : If a jettison be made in a storm, and the ship and the remainder of the cargo arrive at an intermediate port; in all these cases the voyage is gone, and yet it has never been denied, that they copie within the rule of general average.
    It has been argued, that the sacrifice must be of part only of the ship or cargo to save the rest. This is contrary to the essential principle of marine contribution. In time of distress and danger, all the different interests become consolidated, and the object is to preserve as much as possible of the common adventure. It is the interest, therefore, of all concerned, to continue to sacrifice, until the general safety is produced; and then the loss is to be equally distributed among all. It is impossible to fix any limit to the extent of the sacrifice, except the extent of the danger. Neither the Rhodian law, nor any of the commentators on it, nor any of the marine ordinances, limit the extent of a jettison, which, -though the case is not likely often to occur, may upon principle extend to the whole cargo. If a part of the cargo be thrown out, in consequence of which the rest of it is damaged and lost, the loss of the whole is indisputably general average. The consequences of an opposite doctrine would /be, that ninety-nine parts out of an hundred might be sacrificed and made good by contribution, yet if the hundredth part were also sacrificed with the same view, there would be no contribution. The same reasoning may be applied to the vessel. If a vessel be stranded, the expenses of setting her afloat and repairing her, are universally allowed to be general average. If, then, these expenses, amounting to nearly, or perhaps to quite her value, be entitled to contribution, what reason can there be for denying it to her where she is totally lost? What, too, would be the effect of such a rule upon the conduct of the master ? In time of danger, he would not, unless driven by absolute necessity, expose his vessel to the risk of loss, for the purpose of saving the cargo, if a proportion of that loss were not to be borne by the property preserved.
    Contribution is not limited to the sacrifice intended, which is another position of the opposite argument. It extends, also, to the consequences flowing from that sacrifice, by which the loss is increased. Thus, in cutting away the masts, there is no intention to injure the side of the vessel: In throwing goods overboard, there is no intention to damage the rest of the cargo: In stranding the ship, there is no intention of beating a hole- in her bottom ; yet, if these Consequences flow from the act done for the common advantage, they are without doubt to be brought into average.
    Nor is it necessary, that the thing exposed should be placed in greater danger than it was in before. The object is the preservation of ks 'much as possible of the common adventure, by the exposure- of a part to injury or the risk of loss; but whether this part encounter greater or less danger, than it was previously in, forms no part of the question of contribution. The great and only criterion intetich questions is, the safety of a part of the comirion stock, produced by the voluntary exposure and subsequent loss Of another part. This doctrine was fully established by this Court in Sims v. Gurney.
      
    
    With respect to the argument founded upon the óbligations of common carriers, it is sufficient to say, that if there is any thing in their character and duties to prevent contribution for a' ship voluntarily lost, the reason must be equally strong against contribution for repairs where she is stranded; which is not denied to be a case of general average. Stranding a vessel for the purpose of averting general destruction is one of those inevitable accidents, which alone excuse the master from delivering the goods. It is often as necessary in a storm as a jettison of a part of the cargo, which is always a sufficient answer to the bill of lading, and is an act for which the master is not only excusable, but which it is his duty to perform. There is nothing, therefore, in the character of the master, as a common carrier, to alter the features of the case.
    
      The objections to this doctrine are purely artificial and ' technical. They depart from the equity of the Rhodian law, which fixes no limit to a sacrifice made for the common advantage, but which requires every injury arising from such a cause, however great, to be brought into general average, upon the equitable principle, that those whose property has been thus preserved, ought to pay the price of the benefit they have reaped. They are against reason and common justice, because they give indemnity for a small loss, but deny it to a great one suffered with the, same view. They make contribution depend upon the thing sacrificed, and not upon the safety of that for which the sacrifice was made. With equal propriety might it be said, in a case of jettison, that if the thing thrown overboard merely sustain an injury, there shall be contribution, but if it be lost, there shall be none. The intention is to save, and the law does not regard the extent of the sacrifice, with a view to, ascertain whether contribution shall take place, but to ascertain the amount of the contribution. They make contribution depend, not upon the motive, or upon the extent of the, sacrifice, but upon accidental circumstances, which may exist at one place and not at another. A vessel stranded near a place where repairs can be had, may be set afloat again, but if she be run ashore at a place where no assistance.can be obtained, she must be lost. They are repugnant too to the policy of contribution. If a loss sustained for the common benefit, is to fall alone upon the individual who suffers it, each will be anxious to preserve his own property till the last. This will be particularly the case with the owner, who is always present in the person of the Captain, whose interest it would be to encounter every risk rather than expose himself, by stranding the vessel, to an injury of the extent of which he can form no calculation. Thus it is evident, that the doctrine which would take the case of a vessel lost by intentional stranding, out of general average, is contrary to reason and justice, and contrary to the equity and policy of the established rules of maritime contribution. (Mr. Binney closed his argument with a review of the authorities cited by his colleague and opponent respectively.)
    After the argument on the ppint reserved was concluded, Mr. Rawle, in support of his motion for a new trial, insisted,
    
      
      First, That under the circumstances of the case no freight Was due. He contended, that as the letter of instructions designated no other place of delivery than Cadiz, the supercargo had no authority to accept the goods at an intermediate port. That in fact he had not voluntarily accepted them, but had received them by compulsion, and had expressly reserved the question of freight to be settled in Philadelphia. That the master, to entitle himself to freight pro rata, ought to have tendered himself ready to transport the cargo to the port of destination, and had no right to infer, from the superiority of the market at Algesiras, that the supercargo did not wish the goods delivered at Cadiz. On this point he cited Armroyd v. Union Insurance Company 
      
       Callender v. Insurance Company of North America 
      
       Schiejfelin v. Neto Tork Insurance Company.
      
    
    
      Secoridly, That the vessel was estimated by an improper standard. The ship, he said, ought to have been valued by the same rule as the goods, and the true standard was, her worth in the place near which the loss took place, immediately before it happened. In support of this rule, he read the certificate of sundry merchants of the city of Philadelphia, who declared, that it was the established custom in the settlement of general averages to estimate the ship and goods which are to contribute, at the sums ,they are respectively worth at the port where the loss happens, and for the property lost to be paid for at its value, at the same place. He also cited, Abbott, (Story’s edit!) 395, 396. Parke, (5th edit.) 127. 129. 2 Marsh. 545. 1 Magens, 54. 58. 69. 11 Johns. 323. Code Napoleon de Commerce, b. 2. tit. 12. art. 417,
    
      Binney, against the motion,
    denied, that the Captain was bound to tender himself ready to carry on the cargo. If, he said, the master offer to transport the goods to the port of destination, and the owner decline the offer, whole freight is due. If, on the other hand, the owner demand, that the cargo shall be delivered at the original port of destination, and the master refuse to take it there, no freight is due. But if there be neither an offer nor a demand, but the parties agree, that the cargo shall be delivered at an intermediate port, then freight pro rata is payable. Wherever the Captain has the ability to take the goods on, and no request is made for that purpose, the supercargo must be considered as having voluntarily accepted them. The questions then were, whether the supercargo had voluntarily accepted the cargo at Algesiras ? and whether he had power to do so ? That he had so accepted the cargo, was proved by the evidence upon which Mr. Binney commentd: That he had authority to accept, would not admit of a doubt. Unless the agent of the shipper possessed such authority, there never would be freight pro rata, except where the shipper was himself present. Besides, in case of disaster, the supercargo must, ex necessitate rei, have a controul over the goods, and no other person has a right to .interfere with them.- But Mr.- Wain was consignee as well as supercargo, standing in the place of the freighter, having the legal property vested in him, and possessing the right of bringing an action in his own name against the Captain, if the goods were not delivered'on demand. He was, therefore, fully authorised to accept the cargo at Algesiras. Evans v. Marlett,
      
       Lickbarrow v. Mason,
      
       Davidson v. Gwynne.
    
    2. With respect to the value of the ship, he said, that the rule laid down in the judge’s charge, was conformable both to reason and authority* The object of contribution was indemnity, and different nations had different modes of ascertaining this indemnity. Where goods were thrown overboard, their value at the port of discharge, was their true value. But the same' rule did not apply to the ship, which in general was not intended to be sold at the port of destination, which might not be a good market for ships. Such a rule would, therefore, be too dependent upon accidental circumstances. The true value of the Apollo, was what she Would have been worth at her port of departure, after deducting the deterioration she might have suffered up to the time of the loss. And this was what the writers on marine law meant when they spoke of the value of the vessel at the end of the voyage; not what she would sell for at the place in' which she might happen to be at that time. He cited, 1 Emerigon, 651. 2 Valin, 194, 195. 1 Magens, 58. 69. 72. 2 Magens, 237.
    
      
       6 Mass. Rep. 131.
    
    
      
      
         The reporters having been so fortunate as to procure a note of this case, together with a copy of Judge Washington’s opinion, are convinced they will receive the thanks of the profession for inserting them.
      
        Caze v. Richards and Reilly. The schooner Julia, JSutchinson master, owned by the defendants and others, and laden with a cargo of merchandise, sailed from Bordeaux on the 23d February, 1813, for Philadelphia. On the 8th of the following April, while proceeding up the JDela-ware bay, she was chased by a frigate and schooner of the enemy, then forming the blockade of that bay and river, and was compelled to bear away for JVeiv York. The chase continued in the direction of JVfew York, until 9th April, when a seventy-four of the enemy endeavoured to cut the schooner from the land, and not succeeding, joined in the chase. Having gone - so far oh her course as Long Branch, in JVfew Jersey, the Julia was headed by another frigate of the enemy. The master, thereupon, consulted with his officers anil crew, and by their advice, voluntarily ran her ashore at Long Branch, for the purpose of avoiding capture, and for the common benefit of all concerned. After saving sundry cases and packages of merchandise, and part of the furniture and rigging of the vessel, the enemy compelled the master, officers, and crew of the schooner, to leave her. The enemy then hoarded, set fire to her, and left her. On the 10th. April, the • schooner having burnt to the water edge, the master and officers, with the assistance of sundry fishermen, succeeded in saving other parts of the cargo, together with several spars, anchors, and other parts of the vessel’s furniture and rigging; but so much of the hull as was not burnt, was washed upon the shore and lost. The merchandise consisted of such dry goods as lay near at hand, and could be gotten out before the enemy boarded, and such wanes, brandies, and other articles, not liable to injury, as were in the bottom of the schooner.
      The question was, whether the goods of the plaintiff which were saved as above, were bound to contribute to the loss of the schooner, by way of general average ?
      Washington J. It seems to be universally admitted, that the Rhodian law d'e jfactu, was the parent of maritime contribution. That law, however, provides only for certain cases in which contribution is to be allowed, and does not lay down any general rule. But it recognises, in relation to maritime contribution, a great and striking principle, within the equity of which every possible case of contribution, may by fair deduction be brought. This law declares, that if goods be thrown overboard for the sake of lightening the vessel, as it is done for the good of all, all must come into contribution for the same. The principle of this rule is, that where a common benefit is received by the voluntary sacrifice of a part, the loss sustained should be borne by the property saved. And although no other case is provided for hut the jettison of goods, and partial injuries to the vessel, yet the principle being a voluntary sacrifice for the common safety, contribution to repair the loss sustained, is equally within the equity of the law. The ordinances of other countries having the Rhodian law tor their basis, and the construction given to that law by learned jurists, have extended the principle of it to so many cases of contribution, that it could scarcely have been supposed, that one could arise which had not been provided for. Thus, if the ship and cargo be ransomed from pirates, by a sacrifice of part of the cargo, or by a ..raiisem band; if in the act of making a jettison, the ship or other parts of the cargo receive injury ¡ if the goods are not consigned to apparent destruction, but are put into lighters for the relief of the ship, and the lighters perish; if the ship be damaged by cutting the cable and masts, whereby she incurs a loss for the common good, or if life hull or sides be cut in order to facilitate a necessary jettison/ these and many other cases which might be enumerated, are considered as cases of contribution, by all the maritime countries of the world. But to constitute a claim to contribution, the jettison must be designedly made with a view to the common safety, and must be successful in part at least, for if the ship be lost by the peril which the sacrifice was intended to avert, there is no contribution due.
      The principle fairly tp be extracted from the general maritime law of nations upon the subject of contribution is, that if the cargo, or ship, or any parfof either, be voluntarily sacrificed, or exposed to danger, for the common safety, the part saved s.hall contribute to repair the loss sustained, provided the object for which the sacrifice was made, was attained. This principle is not inconsistent with the rule contended for by the plaintiff’s counsel, that if a jettison be made, and the ship saved, there shall be contribution, but if the ship be lost there shall be none. That rule is correct in all its parts, when applied to a pure case of jettison. But the principle of it is equally applicable to a loss voluntarily incurred by the ship for the common safety; if safety be thereby attained.
      Let us now examine the correctness of this principle, first, by the reason of it, and secondly, by authorities.
      1. The reason assigned in the Rhodian law, why contribution should be made in a case of & jettison of goods, is so entirely applicable to that of a loss or injury incurred, by the vessel under the same circumstances, that it becomes those who distinguish them, to point out the difference. That reason is, that all should contribute to a loss occasoned by the jettison for the sake of lightening the vessel, because it was done for the benefit of all. If so, and the ship expose hdrsclf to loss for the sake of obtaining safety for all, and in consequence of such voluntary exposure, she is lost, why should not all contribute to repair the loss ? The reasons assigned by the plaintiff’s counsel are, that the loss of the vessel was not contemplated as the consequence of the stranding: That the act of stranding exposes the common interest equally to destruction: That it cannot be certainly ascertained, that the loss of the ship resulted from the stranding; and lastly, that the principle of contribution is, the safety and prosecution of the voyage, which cannot be effected if the vessel be totally lost.
      Let the reasons be examined in detail.
      3b The loss of the vessel was not intended.
      An intention to consign the goods thrown overboard to inevitable destruction forma no part of the reason assigned by the Rhodian law for contribution, and was not considered to be deducible from it by those jurists who undertook to apply that law to other cases of contribution; otherwise, goods put into fighters could never be entitled to.contribution, for as to those the probability is, that they will be saved. The plaintiff’s counsel says, this is an excepted case, but he has not shewn it to be so; it is on the contrary within the general principle. So injury sustained by the fall of a mast is contingent, and not foreseen or intended. Even goods thrown overboard maybe saved. If saved they belong to the owner at the time of One jettison; if not saved the loss ft to be repaired by contribution. The truth is, that it is the motive for the act in relation to the rest of the property, and not the intention of the jettison in relation to the fate of the thing sacrificed or exposed to danger, which gives rise to the law of contribution.
      2. .The stranding exposes the cargo as well as the vessel to the risk of loss.
      Xf this reason were-sound, then a vessel stranded with a view to $ie common safety would not be entitled to contribution, even forthe purpose of repairing and floating her if her situation admitted it, and yet it is clear, that by the universal maritime law the expenses incurred for these purposes are a subject of general average. But if this reason were admitted, it might in its application produce very unsatisfactory results, for it cannot be said, with any degree of confidence, that the loss of the anchor by the cutting of the cable, or the loss of the mast, may not expose the whole to daflger. But the object is to incur a partial loss, and to risk a minor or contingent danger to avoid the more certain loss of all. And this applies strictly to the voluntary stranding of the ship. Injury to the ship is certain; a total loss probable. The escapeof the persons on board from the dangers of a storm, or of an enemy, and the safety of the cargo, if not certain, are considered to be more so than by continuing at sea, and With this calculation the measure is adopted. A certain injury, therefore, with a probable total loss is voluntarily incurred by the ship, for the common safety, and consequently she is entitled to contribution.
      
        3. It cannot be certainly ascertained, that the loss of the ship resulted from the stranding, or from some other cause.
      Neither can it be certainly ascertained, that the loss resulted from that cause, in. case the damage sustained should be short of a total loss, in which case it is throughout admitted, that such damage must be repaired by a general average. It is sufficient if the danger sought to be avoided is so imminent, that the measure adopted may be beneficial to all. Besides, the difficulty of proving that the immediate loss resulted from the stranding, would afford an insurmountable objection to the reason here assigned. For although she may be burnt, as in this case, by the enemy, or may he on the strand exposed to subsequent tempests, still it would be impossible to say, whether her loss was not irremediable, independent of these new causes. If the exposure of the vessel he made for the common safety, and be successful in relation to a part of the cargo, it is of no consequence whether her total loss was produced immediately by the stranding,or consequently by placing herself in asilualion by which her destruction was effected.
      4. It is contended in the last place, that the principle upon which contribution is allowed, is the safety and prosecution o£ the voyage, which cannot be effected if the vessel be totally lost.
      This reason appears to be entirely fanciful; it has no authority of any kind to stand upon, and is inconsistent with other cases where the vessel-is lost, and yet contribution is allowed. It can scarcely be denied, that in cases of such imminent danger as to justify the desperate remedy of stranding the vessel, the great object of all the parties, who advise the measure, must be, first, the preservation of the lives on the liberty of those on board, and in the next place the safety of the cargo and perhaps of the vessel. All hopes of the further prosecution of the voyage must in general be abandoned, although there is a possibility that it may be resumed. But if this reason be ai sound one, what will he said in a case where a jettison is made of the whole of the cargo, or so great a part of it, as to render the further prosecution of the voyage npt worth pursuing? The voyage would be lost to all the parties con-, cerned, and nothing would remain for any of them but a compensation by way of general average, which may as well he adjusted at the nearest port, without the formality of proceeding unnecessarily to the original port of destination. But what seems to he conclusive is, that if the ship survive the danger, which the jettison was made to avert, and is totally lost even the next day, the goods saved shall contribute to the loss of the part thrown overboard, notwithstanding the entire destruction of the voyage. The owner of the goods saved might, with equal propriety in that case #s in this, complain, that he should be called to contribution, when by the logs of the vessel the voyage is terminated, and the object for which the sacrifice was made entirely defeated.
      I now proceed to examine the authorities, premising, that they ought to b.e strong and uniform, to bear down the reasons upon which the equily of contribution is founded in a case like the present.
      The ordinance of Louis XIV. enumerates, in the 6th article, five distinct causes of contribution, amongst which is the expense of lightening and getting the ship afloat; and in the 18th article declares, that if the ship be opened in order to draw out the goods, these goods shall contribute to the repair of the damage thus occasioned to the ship. (See 2 Valin, 168. 205. 207. 209.) It is to be remarked, that this ordinance does not in any part of it notice the case of a voluntary stranding of the ship; but Valin in his commentary states, that if to avoid a total loss by shipwreck or capture, the master runs his vessel ashore, the damage which she shall suffer on that occasion, and the charge of putting her afloat again, are general average, all having been done for the common safety.
      The argument founded upon this ordinance, and upon the comments of Valin, is, that as the expenses of repairing the vessel and putting her afloat, are alone provided for, and since all the foreign ordinances agree in this, that unless the ship he saved there shall be no contribution, it follows, that if the vessel, in consequence of a voluntary stranding, be totally lost, the law of contribution ceases, and the rule ic save who can,” or in other words, (C every man for himself,” applies. Now this conclusion is altogether inadmissible. The enumeration of certain cases to which a general principle is applied, can never exclude any other case which may fairly be brought within the same principle. On the contrary the rule is, that where there is the same reason, there is the same law. If the damage which a vessel sustains by a voluntary stranding for the common advantage, although that damage should be nearly equal to the value of the vessel, is declared to be a case of contribution, the reason which dictates such a law, will command the extension of it to the case of a total loss of the vessel. As to the rule contended for, that there can be no contribution where the vessel is lost, it is totaIlyr misapplied in every argument. It relates altogether to an ineffectual jettison, and to general or involuntary shipwreck. In the fiiist case, if the ship and remainder of the cargo, for the preservation of which the jettison was made, be lost, and the goods thrown overboard, or put into lighters, be saved, there can be no ground for contribution, because the jettison was made, not for the sake of those goods, but for the safety of the ship and the rest of the cargo. But if the object of th a jettison be attained by the safety of the ship, at the expense of the goods thrown overboard, then the law of contribution applies to repair the loss sustained by the owner of the goods thus sacrificed for the common good. Neither is it a case of contribution, if the ship being lost in the same storm in which the jettison was made, a part of the cargo is saved, because the purpose for which the sacrifice of the goods thrown overboard was made, has not been attained. (2 Valin, 205. Weytzen, 237. Guidon, 133. Basilex L. 53. tit. 3. c. 12. Vinnius in Peckium, 202. Ord. of Louis XIV. art. 17. Valin, 207. 209.)
      In the case of a general sliip wreck the essential principle of contribution is wanting, there being no act voluntarily done for the common safety of the'whole; consequently ' every man must take care of what belongs to him, and depend upon his own exertions •to save it. It is unnecessary to notice particularly those parts of the marine ordinances of Bilboa, Wisbuy, Rotterdam, Copenhagen, the code Napqleon, and the modern 
        Prussian code promulgated in 1791 and 1794, which were quoted by the plaintiff’s 'counsel, because they apply either to an involuntary shipwreck, or to a jettison^ or to damage sustained by a voluntary stranding, and not to a total loss of the ship, and are ail susceptible of the same explanations which I have just given of the ordinances of Louis Xiy. which they resemble. It is admitted, that neither the Rhodian law, nor any of these ordinances have noticed the case of a voluntary stranding for the common safety, followed by the total loss of the ship.
      We meet with but two decisions which have ever been given upon the very point presented for the consideration of this Court. The first was made by the maritime judges of Amsterdam, in the year 1661, and is reported by Bynkershoek. (2 Bynk. 424.) They decided (e that if a cable is cut in a storm, in order to save the ship, “ whereby the anchor is lost, the cargo is not bound to contribute, because there “was no voluntary jettison.3 3 These judges then add, "for the samereason} if a “ vessel be voluntarily run ashore, the goods unladen from her,-while she is lying tc aground, are not to contribute anything; also because no contribution is due, unless the ship is saved,” and the Rhodian law (Dig. ad leg. Rhod. de Jact. l. 4.) is cited. Now If the case he truly reported, which may well be doubted, it is upon the face of it too absurd to merit the least respect. The reason assigned, why if the cable be cut in a storm, in order to save the ship, contribution shall not be made to repair the loss of the anchor, is, that the jettison was not voluntary, and yet the case supposes, that the anchor was voluntarily sacrificed to save the ship. Neither can there be any doubt, that the law is different from what this case states it to be in relation to the loss of the anchor. (Abbott, 219.) In like manner one of the reasons assigned by the judges in this ease, why if the vessel be stranded and lost, there shall be no contribution, is, that that the stranding was not voluntary, and yet the case states, that the vessel is voluntarily run ashore. The other reason assigned is, that there is no contribution unless the vessel is saved, and this reason is founded on the Rhodian law 4, which relates to goods put into a lighter to save the ship, but without effect, in which case it is truly said, that there can be no contribution except where the vessel is saved by a jettison. In the one case, the goods are ineffectually lost or exposed, in order to save the ship, and therefore, the object not being attained, there is no contribution. In the other, the ship is effectually exposed, and sacrificed to save the cargo. The converse, therefore, of the rule applies. With these observations I shall leave this case to the merited censures of Bynkershoek9 who condemns and exposes it throughout.
      I approach with infinitely more respect the case decided in the Supreme Court of New York, cited from 9 Johns. Rep. p. 9. It is that case alone which has produced any hesitation in my mind. The great law learning of that Court, is appreciated by no one more highly than myself, and I should upon all occasions see the propriety of examining very thoroughly any opinion which I might form, differing from a decision of that Court, before I should feel myself safe in entertaining or expressing it. This I have faithfully done in the present case, and I can only add, that the course of reasoning which my mind has suggested forcing me to a different conclusion, I must follow where it leads.
      I come now to the consideration of the opinions of foreign jurists relied upon by the plaintiff’s counsel, to show that this is not a case of general average.
      
        Vinnius, (Vinn. in Peckium, 262.) commenting on the Rhodian law 5, says, that in case of shipwreck, (alluding obviously to an involuntary shipwreck, as uo the Basilicks to which he refers) there shall be no contribution; but he adds, that the damage suffered by a sacrifice made for the good of all, to avoid common danger, is to he made good by the contribution of all. Now this is the precise doctrine which I adopt, and is the basis on which my opinion is formed. The whole of the quotation from this authoi^proves, that he considered the question of contribution as turning upon the fact of voluntary shipwreck for the good of all concerned, or involuntary ; and not upon that of the partial or total loss of the vessel. The damage for which contribution is to be made, is stated by this author without limitation, and whether it be to the whole amount of the vessel or to half, or a greater or smaller proportion of her value, forms no part of the principle upon which this opinion is formed. Weytzen, Loccemiius, Kuricke, Jllarquardus and Pothier, all speak upon this subject in reference to an ineffectual jettison, or an involuntary shipwreck, and lay down the same doctrine as Vimdus. (Weytzen, 237. Loccennius, 1000. Kuricke, 781. Marquardus, 398. Pothier, Avaries, 106.) Emerigon, (408. 614. 616.) istheonly writer upon the subject of average who intimates an opinion, that in the case of a voluntary stranding, followed by the total loss of the vessel, there shall be no contribution. « If/ says he, «the stranding was done voluntarily for the common safety, it «would be general average; provided always, that the ship be again set afloat; if «the stranding be followed by shipwreck, then it is, save who can.” There is no writer on maritime law whose opinions are more to be respected in general than those of Emerigon. But after all, it is only an opinion in this case, in support of which he quotes no law, ordinance, or decision, and does not even condescend to assign a single reason. Immediately after the opinion just cited, he refers to what he afterwards says, in respect to & jettison which does not save the ship, as if he intended to illustrate by this latter case, the opinion he had given in the case of a voluntary stranding and loss of the ship. Now it is most obvious, that no two cases can be more unlike in principle. In the one an ineffectual sacrifice of goods is made to save the ship, and in the other an effectual sacrifice of the ship is made to save the cargo. In the former the property demanding contribution has no merits, and is therefore entitled to no compensation. In the latter the converse holds good throughout. Nevertheless, I should be greatly embarrassed by this naked opinion of Emerigon, if it stood uncontradicted by other writers equally respectable. The opinions of these jurists I shall now proceed to state.
      
        Voet, (b. 14. tit. 2. s. 5.) in his commentary on the digests, says, « if the, ship lies « aground without the fault of the master; and he having made jettison in order to «save the ship, has thought it most prudent to save the goods by means of lightrers, and if the greatest part of the goods being saved, a storm shall arise, and «the ship be broken, this damage being incurred for the sake of averting the « common danger, shall be suffered in common; for the goods do not appear to « have been put into lighters for the sake .of lightening the ship in order to save her « and the goods remaining on board, but rather the ship itself has been exposed to « accident, that the goods should be saved by means of lighters. Analogous to this «is the following case: If by the common advice of the best informed men on board, «the ship has been wilfully run ashore, and thus has perished, the goods being « saved.5’ Here Ibis writer assigns the reason of his opinion, and founds it upon the distinction between an ineffectual jettison, where there is no merit, and an effectual sacrifice of the ship where there is, and denies contribution in the former, and allows it in the latter, upon the reason of that distinction.
      
        JBynkershoek, in his criticism upon the decision of the Dutch judges before mentiohed, condemns that opinion throughout, and assigns unanswerable reasons, in my opinion, for his censure. «It is one thing/’ he says, «if the tempest alone drives «the ship ashore, and there breaking the armament of the ship, the masts, &c. in Which case the ship-owner is lijte the sqjKh, who, while he is performing his dut^, “ breaks his anvil or hammer. It is another thing, if by the advice o,f a majority df “ the crew, that the lives and the goods may be saved, the vessel is run ashore, or ‘ by their advice the mast is cut away, or the cable and anchors are cut. Therefore “ theirs is the best opinion, who answer, that if the masts or cables are cut, that the “ vessel and goods may be saved from the storm, there shall be contribution; and. “ surely the same, if a vessel voluntarily run ashore, as if any of her instruments cast “ overboard on account of danger, is clearly ordained.” Here it is obvious, that; Bynkershoek is speaking of a vessel run ashore and totally lost,- because, he is commenting upon the opinion of the Butch judges, which is given upon that case, and because he resembles the case of the mast or cable cut and lost to that Of the stranded vessel. His opinion, therefore, is given upon the very question unde*-consideration.
      To these authorities I add, with great confidence, the opinion of a distinguished judge of the Supreme Court of the United States, intimated in one of his notes upon Jlbbott, a work in itself of great merit, and which is rendered still more valuable by the labours of the learned editor.
      I shall conclude this opinion by stating, that the ordinance of Konigsberg, (2 Maggens, 200.) the only one which provides in express terms for the case of a loss by stranding of the ship for the common safety, declares, that in such a case the good3 shall contribute.
      Upon the whole, therefore, X am of opinion, that the law is in favour tlf tfcq defendants.
      
        Bu Ponceau, for the plaintiffs»
      
        Bmney, for the defendants-.
    
    
      
      
         12 Coke, 63.
    
    
      
      
         Bulst. 280.
    
    
      
      
         10 Johns. Rep. 7
      
    
    
      
      
         4 Binn. 129.
    
    
      
       1 East, 220.
    
    
      
      
         9 Johns. Rep. 9.
    
    
      
      
        1 Caines, 45.
    
    
      
      
         4 Binn. 526.
    
    
      
       3 Binn. 437.
      
    
    
      
       5 Binn. 525.
    
    
      
       9 Johns. Rep. 21.
    
    
      
       1 Ld. Raym. 271.
      
    
    
      
       6 East, 21-26. note.
      
    
    
      
       12 East. 381.
    
   Tilghman C. J.

On the trial of this cause the judge reserved a point for consideration. Supposing the ship to have been voluntarily run on shore with a view of preserving as. far as possible both ship and cargo, is it a case of general average ? The defendant says it is not, because the ship was totally lost. But it is conceded, that if the ship had been only damaged, the cargo, which was saved, would have been liable to contribution. If this be the law, it will be difficult to assign a reason for it;- because the result is, that for a small loss there shall be compensation, but a great loss is to go without compensation. The principle of general average is, that “ what is' given for the benefit of all, shall be made “ good by the contribution of all.” This principle is recognised by the Rhodian law. It happens, that the case put in that law is i\ jettison. But the reason for contribution is the same, whether the object sacrificed be ship or goods. The law of average is founded on policy and on equity. On policy, because there are men, who would risk the loss of life and fortune rather than sacrifice their property without com-' pensation. On equity, because nothing can be more reasonable, than that the property saved should contribute to make good the loss, which was the cause of safety. It is to be understood, that this loss was incurred voluntarily, in time of imminent danger, and with a" view to the general good, because without these concurring circumstances there would be neither policy nor equity in contribution. It is to be understood too, that the object in view, that is, the preservation of ship and cargo, has been in whole or in part effected. If goods are thrown overboard to lighten the ship, notwithstanding which she is wrecked, neither the ship nor the goods which happen to be saved, shall contribute, because they .were not saved by means of the jettison. But if the jettison preserves the ship and cargo from the impending danger, and afterwards the ship is wrecked in consequence of a new peril, %vhat is saved of the cargo shall contribute, because it would not have been saved, but for the jettison. It appears to me that some confusion has taken place in the law respecting average, from not attending to the distinction; between cases ofjettison and running the ship on shore. In case of a jettison., the object in view is not attained unless the ship is saved; the goods which chance to be saved, are not saved by means of the jettison. The reason for contribution, therefore, fails. But where the ship is run on shore, the object in view, so far as concerns the cargo, may be completely obtained, though the ship be totally lost; because the goods are saved by means of the loss of the ship. There might be a case of jettison resembling the total sacrifice of a ship; that is to say, the jettison of the whole-cargo. Such a case could rarely occur, and I believe never has occurred, but may be imagined; and if it should occur, I see no reason why the ship should not contribute. In time of imminent danger general safety is the object, and ship and cargo are considered as one. Either may be sacrificed in part or in whole, and whether in part or in whole, makes no difference, so far as regards the equity of demanding contribution from that which is saved. I have given my opinion on this case upon principle. But it is necessary to consider it also upon authority; for of such importance is certainty in the law, that I should not think of setting up my own opinion, against a series of unconflicting decisions.- Among foreign jurists we have in favour of general average, Bynkershoek, Voet, Valin, Browne on the law of admiralty, and the ordinances of Friezland, Antwerp,and Konigsberg. Gn the opposite side are Emerigon and Huberus. At home we have the Circuit Court of the United States for this district, and Judge Story in his edition of Abbott, for the average, and the Supreme Court of New Fork against it. The cases were cited in the argument, and therefore I do not refer to them by book and page. Among foreigners, the weight of authority appears to be in favour of average. Between the respectable judges of our own country, I make no comparison. Suffice it to say, that the weight does not incline so decisively on either side, as to prevent this Court from following its own opinion. I feel myself free, therefore, to say, that I agree with my brother Yeates, who directed the jury to consider this as a case of general average.

Besides the reserved point, the defendant’s counsel have assigned two reasons for a new trial. First, That no freight was due. Second, That the judge erred in law in his direction to the jury to estimate the ship according to her value at the commencement of the voyage, making allowance for wear and tear, and any deterioration which might have taken place prior to her stranding. 1. As to freight, it is due pro rata according to the principles laid down by this Court in Armroyd v. The Union Insurance Company, and Callender v. The Insurance Company of North America, when 'the consent of the merchant, either by words or by actions, has been expressly given, or may be fairly inferred, to accept his goods at an intermediate port. In such case the original contract is dissolved, and a new one ¿rises by implication. In the present instance there was a supercargo on board, to whom the goods were consigned, and to hint they were delivered at Algesiras, a port not far distant from the port of delivery, and from which they might have been carried, and no doubt would have been carried to the port of delivery, had the supercargo desired it, or had the Captain supposed that the consequence of not carrying them there, would have been the loss of the whole freight. It is material, that the market at Algesiras was better than at Cadiz; so that the supercargo could have had no motive to desire that the goods should be carried to Cadiz; but it appears plainly by the evidence, that had Cadiz been the better market, they would have been carried there, because the supercargo went to Cadiz, compared the markets at the two places, and at one time seems to have had an intention to transport part of the cargo to Cadiz. There is no proof of an express offer on the part of the Captain to carry the goods to Cadiz, or of an express agreement between the Captain and supercargo, that they should be delivered at Algesiras, paying freight pro rata. But considering the whole evidence, it is impossible to entertain a doubt that the cargo was voluntarily received, by the supercargo at Algesiras, with knowledge that if he chose it, the Captain would find means to transport it to Cadiz. It was suggested, but not much insisted on, that the supercargo had no right to receive the goods at any place short of the port of destination. Indeed it ought not to have been insisted on ,• for surely in case of shipwreck the supercargo, from the nature of things, must have power to act for his principal. If he has not, who has, and what is to become of the cargo? Upon the whole, then, there can be no doubt that freight pro rata was due.

2. The jury, under the charge of the judge, estimated the ship at her value when she commenced the voyage, deducting one-fifth for wear ancl tear, &c. To this the defendant objects, and says, that the estimate should have been the price that the ship would have brought at Algesiras. In case of a jettison the rule is now fixed, that the goods thrown overboard, shall be valued at the price they would have beeu worth at the port of delivery. This is a just estimate, bccauge ¡j pUts the owners of the lost goods, upon the same footing with the owners of those which were saved, and it has the advantage of being easily-reduced to practice ; the price actually brought by the goods saved, at the port of delivery, serving as a standard for those which were lost. But the case is different when contribution is to be made for a lost ship. We have no such standard there, by which the value can be regulated. The object of contribution being to make good the actual loss, the rule to be adopted should be such, as will most probably ascertain the actual loss. All agree in saying, that the loss is the value of the ship at the moment preceding the loss. But what is that value and how is it to be ascertained ? The defendant contends, that it is the sum the ship would have sold for at Algesiras or Gibraltar, and insists on the impropriety of valuing the goods by one rule and the ship by another. But the same reason does not hold for the valuation of the goods and the ship. The goods are intended to be sold at the port of destination, and being selected for that market, may be supposed in general to fetch a good price there. Not so the ship, which in many cases delivers her cargo and returns to the place where the voyage originated, her owners having had no intention to sell her at the port of delivery, which they may have known to be no market for ships. It would seem more just, therefore, to value the ship according to the price she would have borne-at the place where the voyage commenced, deducting the expense of carrying her there. It is impossible to come at this exactly in any instance, and yet it is desirable to have a rule calculated to do justice in general. In cases where the ship has suffered no greater deterioration than the usual wear and tear of a voyage across the Atlantic, it has been supposed by some, that a deduction of one-fifth from her value at the time of commencing the voyage, would do justice. (Leavenworth v. Delafield, 1 Caines, 572. cited in 2 Condy's Marshall, 545.) This is the rule at New York, and the jury adopted it in the present case. Iam the more inclined to be satisfied with it, as it is more equitable, more certain, and less liable to accidental fluctuation, than the rule contended for by the defendant. Different nations entertain different ideas on this subject.. Frame has thought proper to value the ship at the com-inducement of the voyage, striking off one-half of the whole value, and adding half of the freight. 1 Emerigon, 651. 2 Valin, 194. art. 7. Id. 195. Hamburg fixes the value at the commencement of the voyage. 2 Magens, 237. art. 8. England takes the value of the ship at the end of the voyage, but whether this value is ascertained by the price at the port of destination, does not clearly appear, although Parke, Marshall, and Abbott seem to express themselves as if they so understood it. Parke, 127. (5th edit.) 2 Marsh. 545. Abbott, 395, 396. (Story.) It is to be observed, however, that cases like the present, where contribution is to be made for a ship totally lost, seldom occur. In general.the valuation of ships is made for the purpose of ascertaining how much they shall contribute towards other losses. Finding no certain rule on the subject, and not perceiving that any which has been proposed is better calculated to do justice, than that which was recommended by th.e judge who tried this cause, I agree with him in opinion, and am therefore against a new trial.

Yeates J.

A point was reserved on the trial of this cause at the desire of the counsel on both sides: Whether if a ship be voluntarily stranded and part of the cargo be saved, the vessel shall not be the subject of general average, although she be totally lost. The learned and laborious opinion of Judge Washington, in the Circuit Court of the United States for this district, delivered in May, 1814, between Caze v. Richards and Reilly, has fully satisfied my mind upon this question.

I will not enter into a detail of the arguments he has made use of, or the authorities he has cited and answered in support of his legal conclusion, but shall content myself with observing, that his masterly system of reasoning contains the most just and correct inferences from the true principles of the Rhodian law according to my apprehension, and conveys to my mind full conviction upon the subject in question. I have no hesitation, therefore, in declaring, that the ship Apollo under the events which have occurred should be contributed for as general average. As to the reasons urged for a new trial, I see no ground for an alteration of the sentiments I gave in charge to the jury.. I trust I never shall be so entirely wedded to any opinion as not willingly to retract it upon being satisfied that it was erroneous. Independently of the expressions of the defendant in his letter of instnjq- ~ tions to Jesse Wain, “ to usfe his best endeavours to dispose “ of the goods consigned to him for the highest price that “could be obtained for them,” of the terms of the bill of lading signed by Captain Bell, that “ the goods were to be “ delivered to Jesse Wain, or his assigns at Cadiz, (the dangers of the sea being excepted.)” I conceive that the supercargo, to whom the articles of merchandise were consigned, had the unquestionable right of determining for his constituents what ulterior measures should be pursued in cases of loss or detention or other cases of necessity superinduced by unforeseen events. The known representative of the shipper on board the vessel, in the absence of the principal, can alone decide on receiving or rejecting the goods at an intermediate port. The master of such vessel w-ould never think of asking the inspection of his employer’s instructions in such an emergency. It is obvio'üs, tliat it would be an idle ceremony to offer to cari-y the merchandise to the port of destination, where the shipper or his agent dispensed with it, either verbally or by an unequivocal act on the part of the persons interested. Such acts would operate more powerfully in a controversy between the owners of ships and the proprietors of the shipments respecting freight, pro, rata itineris, where each party had their avowed agent at the intermediate port, than as between the insured and underwriters. It was submitted to the jury as a fact to be decided by them, whether the supercargo did not receive the goods of his own free-will and accord at Algesiras, and from their verdict we are bound to presume, that he voluntarily accepted the goods at that port. This brings, the case within the principle laid down by. this Court in Armroyd v. Union Insurance Company, (3 Binn. 437.) and in Callender v. Insurance Company of North America, (5 Binn. 525.) It cannot be asserted, that the verdict has not strong evidence to support it.

The market at Algesiras was preferable to. that of Cadiz, but the jury were ekpressly told, that in no other view than to enable them to form a judgment of the grounds.on which the supercargo probably proceeded, was the relative state of the markets material. The indorsement on the bill of lading-drawn up in the handwriting of Jesse Wain, and signed by Captain Bell, that he had agreed to a deduction of forty cents' per barrel.upon the freight, in consequence of the cargo being landed at Algesiras, powerfully shows that he gave his full assent there to receive them. An agreement is the act of two minds at least. But with whom could he contract, as to the rateable freight, except with the supercargo? The letters of' Jesse Wain to Gray and Taylor; his account of sales, made by his order; remitting the nett balance to Bainbridge and Brown, in London; and the account current which he drew up between the plaintiffs and defendant, wherein he charges the latter with 150/. paid by him on account of the freight, are proofs that at the time of these several transactions, he took it for granted that the new contract made for freight, was binding on his constituent,

I told the jury on the trial, that Jesse Wain had acted lawfully and prudently, in making this contract. I went further, and submitted to them whether, if Mr. Robert Wain had been at Algesiras, a due attention to his own interests would not have led him to have pursued the same line of conduct which his supercargo had done. It has been urged, that the rule laid down to the jury, whereby the value of the Apollo was to be estimated, was incorrect. The ordinances of foreign nations fui'nish different rules on this subject, but all of them profess the principle, that contribution should be a complete indemnity to the party whose property has been sacrificed for the common good. These regulations are arbitrary, but are considered as adapted to the state of commerce of each particular country. In France, and many other of the continental states, contribution is made in some cases, for the whole, in others, for a moiety only, of the value of the ship, and of the gross freight. Abbott 345. In England, a ship is valued at the sum she is worth at the time she sails on the voyage insured, including every expense of the outfit, to which is added the premium of insurance. 2 Marsh. 623. In New York, the contribution is thus apportioned ; on the cargo, valued at its first cost and charges, at the port of departure ; on the vessel, valued at four-fifths of her actual value at the same place, exclusive of outfits, and on the freight at one half the gross amount, payable in the event of a successful performance of the voyage. Leavenworth v. Delafield. 1 Caines, 373.

Where it is said in Abbott, 345, that in England the owners contribute according to the value of the ship at the end of the voyage, and the clear amount of the freight, after deducting the wages of the crew and other expenses of the voyage, I ' understand the author to mean, the true value at the end of the voyage, as contradistinguished from her real worth when the voyage commenced. I never can subscribe to the defendant’s doctrine, that the place where the voluntary stranding happened, can form the principle'of decision in the estimate. If it took place on a desert island, or at Otaheite, where no trade from foreign countries is carried on, such a rule would be pregnant with injustice: nor should I deem Gibraltar a proper place under the circumstances of the present case, in order to determine the value of the Apollo there, because it was shown in evidence by Captain Edward Warrington, that, although she would have commanded only between seven and eight thousand dollars in that port at market, she was, in truth, worth much more. It was a port of deep speculation, where vessels were sacrificed when sold. I adhere to the principles I laid down on the trial, that she should be estimated at a fair price, such as she would have brought in an appropriate place, where the American character of shipping was duly appreciated, in the state wherein she floated immediately before she was run ashore. If her hull, sails, or rigging had been deteriorated by storms, or by wear and tear, she was not to be estimated at the sum she would have commanded when she sailed from the first port on her voyage. I still think this to be the only practical rule which can meet the real equity of such cases, that its correctness is warranted by 2 Magens, 58, and that the principle on which goods are valued which have been sent abroad for sale, differs essentially in the case of a carrying ship, whose return to her original port may be fairly calculated in ordinary cases. The jurors had sufficient data on which they might form their estimate, and the value of the ship which they have found, is satisfactory to my mind. I am of opmion that the motion for the new trial should be overruled.

Buackenridge J. was absent, from indisposition, but informed the Chief Justice that he concurred.

New trial refused, and judgment for the plaintiff.  