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nayof: is stranu ties, the and come to em
port or place of safe custody, immediately giving notice to some justice of the peace, magistrate, custom-house or excise officer, or shall discover to any magistrate or officer where any such goods are wrongfully bought, sold, or concealed, such person shall be intitled to a reasonable reward, to be paid by the master or owner of such vessel, in like manner as salvage is to be paid, by 12 Anne, intitled, an act for the preserving all such ships and goods thereof, which have happened to be forced on shore, or stranded upon the coast of this kingdom, or any other of his Majesty's dominions, or else in the manner herein after prescribed, as the case shall require.
For the better ascertaining the salvage, and putting the acts in execution, the justice of the peace, mayor, bailiff, collector of the customs, or chief constable, who shall be nearest where any ship is stranded or cast away, shall forthwith give notice for a meeting of the sheriffs or their deputies, the justice of the peace, mayor or other chief magistrate of towns corporate, coroners, and commissioners of land-tax, or any five or more of them, who are required and impowered to employ proper persons for saving ships in distress, and ships and goods as shall be stranded or cast away; and also to examine persons concerning the same, or the salvage thereof, to adjust the quantum of such salvage, and distribute the same, in case of disagreement, among the parties : and that every person, attending and acting at such meeting, shall be allowed four shillings a day, out of the effects saved by their care and direction.
But if the charges and rewards for salvage, directed by the act 11 Anne, and by this present act, be not paid or security given within forty days, the officer of the customs, concerned in such salvage, may borrow money on the goods, &c. by bill of sale, onsuch part of the goods, &c. as shall be sufficient, redeemable upon payment of the principal sum and interest, at four per cent.
And if oath shall be made before any magistrate, lawfully impowered to take the same, of any theft, and the examination taken shall be delivered to the clerk of the peace, for the county, &c. or his deputy; or if oath shall be made of the breaking any ship, contrary to the act, 12 Anne, and the examination delivered to the clerk of the peace or his deputy, he shall cause the offender to be prosecuted, either in the county where the fact was committed, or the county adjoining, where any indictment may be laid by any other prosecutor; and if the fact be committed in Wales, then the prosecu. tion may be carried on in the next adjoining English county: the charge of such prosecution by the clerks of the peace to be settled by the justices at session, and paid by the treasurer of the county, &c. the clerk of the peace, on refusal or neglect to carry on such prosecution, to forfeit one hundred pounds for every offence, to any person who shall sue for the same.
The Lord Wardens of the Cinque Ports, the Lieutenant of Dover Castle, the Deputy Warden of the Cinque Ports, and the judges officiate, and commissary of the Court of Admiralty of the Cinque Ports, two ancient towns and the members thereof, for the time being, and every person appointed by the Lord Wardens of the Cinque Ports, shall put the acts in execution within the jurisdiction of the Cinque Ports, two ancient towns, and their members, in the same manner, as the justices, &c. in other places. .
If any person, appointed to put this act in execution, shall be wounded in such service, such person or persons, so wounding him, shall, upon trial and conviction, at the assizes or general gaol delivery, or at the general or quarter sessions for the county, &c. be transported for seven years, to some of his Majesty's colonies in America. · Any justice of the peace, in the absence of the sheriff, may take sufficient power to repress all violences and enforce the execution of this act.
To prevent confusion among persons assembled to save any ship, &c. all persons shall conform to the orders of the master, or other officers, or owners; or for want of their presence or direction, to any of the persons appointed to put this act in execution, in the following subordination : first, to the orders of the officer of the customs, then of the excise, the sheriff of the county, or his deputy, a justice of peace, the mayor or chief magistrate of any corporation, the coroner, the commissioner of the land-tax; then of any chief constable, petty constable, or other peace officer : and, whoever acts, knowingly or wilfully, contrary to such orders, shall forfeit five pounds, and in case of non-payment, be sent to the house of correction, for any time not exceeding three months.
Nothing in this act extends to Scotland.
Park and Marshall on Insurance.
Of Salvage, Average, or Contribution. Salvage is an allowance made for saving of a ship or goods, or both, from the dan- See Ab
bott's Law gers of the seas, pirates, or enemies; it is provided for by several English statutes, many of Shipof which have been given under the preceding head, as properly relating to wrecks on ping and shore and ships stranded on the coasts of England.
We are now to treat of salvage in general at sea ; and on foreign coasts.
Salvage is allowed by all nations, it being reasonable that a man should be rewarded who hazards his life, or employs his time, in the service of another; more especially as without his aid the lives and property of the parties in distress most probably would have been lost.
The only difficulty, therefore, that can arise on the subject of salvage, is, as to the proportion of the sums of money, or other gratuities to be allowed ; and where there are no stated laws or customs to go by, we must be guided by the particular circumstances of different cases. This should be the line of conduct observed by arbitrators. For though great promises may have been made in the hour of danger by the master and mariners, yet when the decision comes before a court of judicature, or arbitrators, they are to guard against exorbitant demands for salvage, and the reward must be regulated by the pains and trouble the salvers were put to. Leg. Oleron.
For the charges of salvage, very great allowances have been made to divers and salvers, as the half, the third, or the tenth of the things saved, according to the depth of water, out of which they were fished, whether fifteen, eight, or one fathom. Generally, a tenth part for salvage on the coast, and a fifth for him, who, saving himself, carries something with him, as gold, silver, jewels, or valuable papers, which being easy of transportation are sometimes saved by the mariners who escape from a shipwreck.
Where things are cast up by shipwreck, or left through casting in storms, the laws of Rhodes allow to the finder a fifth part for the saving, and in France they allow one third part for salvage.
If the ship only perish, and the goods be saved, then the goods shall pay the tenth or the fifth, as the difficulty of the saving thereof shall require: and gold, silver, silk, and the like, being of easy transportation, shall pay less than goods of greater weight, and more burthensome for carriage, which are in greater danger. Malines Lex Merc. p. 119.
Salvers may detain goods till agreement is made, and security given, for the payment of the salvage ; but they cannot convert them to their own use, in case the quantum of the salvage is disputed; they must remain as deposits till the contest is decided, and must then be delivered up to the owners, upon payment of the sums awarded for the salvage.
If goods are abandoned or given up to the salvers, there can be no claim for salvage;
yet salvage must be allowed for the recovery. In like manner as for a ship, taken again by an enemy after a ransom or recapture.
Anchors are the most common things found at sea; and if they are fished up, without any buoy or cable floating to direct the salvers, one half is allowed; but if there is a buoy or cable, then only one third. But as it frequently happens that disputes arise concerning the finding of anchors and cables ; a remedy is provided by stat. 3. Geo. 1. C. 13. s. 6. The Lord Warden of the Cinque Ports shall nominate, under his hand and seal, three or more persons in each of the Cinque Ports, two ancient towns, and their members, to adjust any difference relating to salvage, between the master of any ship that has in bad weather been forced from her anchor and cable, and the persons bringing them on shore: and if any vessel be forced from her cables and anchors by extremity of weather, and leave the same in any roads within the jurisdiction of the Cinque Ports, and the salvage cannot be adjusted between the persons concerned ; the same shall be determined in twelve hours by any one or more of the persons appointed as aforesaid.
The master and scamen's wearing apparel are always excepted from the allowance of salvage.
If a ship is found adrift at sea, having been abandoned by the master and crew, the allowance for salvage will be much more than if any person had been found on board.
Case: An outward bound Dutch East-Indiaman struck upon the sands off the port of Dunkirk ; the master and his crew, imagining she would go to pieces, as it blew a hard gale, too hastily abandoned her, and made the best of their way in their boats to Ostend, the surf not admitting of their making their harbour of Dunkirk. Two days after, a passage-boat belonging to Dover found the ship adrift, having worked herself off with the tides, and brought her safe into Dunkirk. The master soon arrived there, and disputed the quantum of the salvage, which the Admiralty Court at Dunkirk adjudged to be one half, and it was paid accordingly.
The valuation of a ship, in order to ascertain the rate of salvage, may be determined by the policy of insurance, if there is no reason to suspect she is undervalued ; the same rule may be observed with respect to goods, where there are policies of insurance upon them. Where this is not the case, the salvers have a right to insist upon proof of the real value, which may be done by the merchants' invoices, and they inust be paid accordingly.
Average and contribution are synoniinous terms in marine cases, and signify a mean proportion of loss between the owners of goods thrown overboard in a storm (in order to preserve the remainder, with the ship, and lives of the men) and the proprietors of those that are saved, and of the vessel.
And as ships in their voyages are exposed to storms, and often saved from perishing, by casting goods overboard to lighten them, it has, therefore, been always allowed, and is justified by law and custom, and in case of imminent danger any thing may be thrown away to evade it. Though as heavy goods seem most likely to answer the purpose, and are generally least in value, they should be first destined to destruction.
However, to make this action legal, the three following essential cases ought to concur:
1st. The ship must be in evident hazard of perishing, with her cargo and crew.
2d. The resolution the captain takes on this melancholy occasion should be in consequence of a consultation held with his officers and sailors, to endeavour to save themselves, ship and cargo, either by throwing some goods overboard, or by cutting some of the masts, &c. away, and by occasioning these extraordinary expences strive to se. cure the remainder for the proprietors' benefit.
3d. That the ship and cargo, or the part of them that are saved, has been saved by that means used, with that sole view.
Agreeable to these three axioms, it must be concluded, that all the expence and losses, which are thus voluntarily made to prevent a total one of ship and cargo, ought to be equally borne by the ship, and her remaining lading. And this is called general or gross average.
But what is broken or lost by a storm, as anchors, cables, masts, sails, cordage, &c. is not to be comprehended in gross averages, because the tempest only was the occasion of this loss, and it was not made by the deliberation of the master and his crew, with the view to save the ship and lading; though on the contrary, if after advice taken by the company, or major part of them, the captain cuts away, or abandons any thing of the ship or cargo, with a view to prevent a greater misfortune, all that is so cut away, &c. must be brought into a general average.
If the ship happily out-weathers the storm, and arrives in safety at her destined port, the captain must make his regular protests, and beside, jointly with the major part of his crew, must swear, that the goods were cast overboard for no other cause, but purely for the safety of ship and lading; and the method of elucidating and clearing up this point varies according to the several countries and places they arrive at.
The ship arriving in safety, those goods she brings with her must come into a general average, and not only those that pay freight but all that have been saved and preserved. by such ejection, even money, jewels, clothes, &c.
But a man's apparel in use, and victuals, &e. put aboard to be spent, are totally excluded from the contribution.
The loss of anchors, masts, and rigging, occasioned by common accidents at sea :' the damages which happen to merchandize by storms, capture, or shipwreck, wet or rotting (not owing to any neglect of the master) are losses to be borne by, and the expences paid by the thing that suffered the damage. And this is called simple or particular average.
In the rating of goods by way of contribution, this order used to be always observed, Job. Loci: viz. If they are cast overboard before half the voyage be performed, then they are to 15. de? be esteemed at the prise they cost; and if after, then at such price as the rest, or the Jacto ; &
8 de Conlike sorts, shall be sold at the place of discharge ; and this regulation continues still in iribut. France and Holland, though here and elsewhere the lost and the saved are sometimes estimated as the latter sell. The owner of the goods that have been thus ejected, or his factor, should take care Leg. Navis
4. ad Leg. to have the loss valued before the ship's discharge, in which the master ought to assist, Rhod.com and settle all averages before he unloads.
Comment, And it is not only the goods that are thrown over that must come into the average, but those also which shall have received any damage, by the action of the others' eject* ment, by wet, &c.
In stating an average on goods, regard should be had to what deductions ought to be · made from the invoice amount, covered for draw-backs, bounties, and other allowance at the custom-house on exportation : also for discounts, and abatements of duties, &c. on importation; and for prompt payment on sales, together with the usual leekage, westage, &c. It should likewise be considered whether the damaged goods, (although the whole of the goods which were loaded may be delivered) are increased or diminished in weight or quantity by means of the sea water, as hemp, sugar, &c:. The true weight or quantities, as shipped and landed, should be discovered and compared ; and the several differences of qualities attended to, particularly in large parcels or cargoes of goods of the same denomination, in order to find on which qualities the damages may have.
happened : for unless all these circumstances be adverted to as the case may require, the average will be stated erroneously. Weskett's Digest of Laws of Insurance.
Average is to be allowed as often as it happens, either once or oftner although the
ship afterwards should be lost in the same voyage. Ord. of Copenh. 2 Rolls's If goods shipped in England are in tempest thrown overboard, in order to preserve Rep.498.
ers, the vessel and crew, and these goods are taken up and preserved by another English Tooker. ship, the owners bringing trover, it lies, because delivered upon the land. 12 Coke. It is lawful for persons to cast goods overboard out of a ferry-boat, in case of a tem280.
pest, to preserve their lives; but, if the ferryman surcharge the boat with goods, the owners of them shall have their remedy against him, but not otherwise.
So if an ejection of goods from any ship is occasioned by the indiscretion of the master's lading her above birth-mark, it is customary in such cases, by the marine laws, to have no contribution made, but satisfaction is due from the ship, masters, or owners.
Lust. Sernus, s. 27. & Si. 23. ad Leg. Aquil. Ditto. And as this law doth take care, that such common calamities shall be borne by all Ditto.
the interested parties, by a general contribution, so the common law takes notice of the
misfortunes, and makes provisions for the master's indemnification; and therefore if Bird vers. the owner of such ejected goods shall bring an action against the master or the owner
of the vessel, the defendant may plead the special matter, and the same shall bar the
plaintiff. Ad. Leg. : As the common law looks upon the goods or cargo as a pawn or pledge for the freight, Rhod. 1. 2.
** so the marine law looks upon them likewise as a security for answering any average or
contribution, and that the master ought not to deliver them (as above, till the contri.
bution is settled, they being tacitly obliged for the one as well as the other. F. de Leg. If a lighter, skiff, or the ship's boat, into which part of the cargo is unladen to lighten Rhod. Leg. 1. Navis® the ship, perish, and the ship be preserved, in that case contribution is to be made; onust. Log. but if the ship be cast away, and the lighter, boat, or skiff, be preserved, there no Leg. Rhod, contribution or average is to be had, it being a rule no contribution but where the ships de Jaclu. arrive in safety. Moor, 297. If a ship be taken by enemies or pirates, and the master to redeem her and cargo Leg. Rhod. de Jactu." promises a certain sum of money, for performance whereof he becomes a pledge or 1. 2. Si Na- captive in the hands of the captor ; in this case, he is to be redeemed at the expence tis. of the ship, lading, and money (if any on board) all being obliged to contribute for his
ransom, according to each man's interest. Moor. F. So where a pirate takes part of the goods to spare the rest, contribution must be 297. pl. 443. Hicks paid. n. Paling. But if a pirate takes by violence part of the goods, the rest are not subject to gross
average, unless the merchant hath made an express agreement to pay it after the ship
is robbed. : Grot. de Though if part of the goods are taken by an enemy, or by letters of marque and reIntrod. Jur. Holl. prizal, è contra.
29. Pe In settling a gross average, an estimate must be made of all the goods lost and saved, keus ad Leg. Rhod as well as of what the master shall have sacrificed of the ship's appurtenances to her prede vastu. servation, and that of her cargo; and if any thing flung into the sea is again recovered, 197, 198. contribution is only to be made for the damage it shall have received.
The pilot's fee, that brought the ship into a port or haven for her safeguard (it being not the place she was designed for) must be contributed to, as the raising her from the
ground must be, when there is no fault in the master. Grot, de
fur. If a master of a ship lets her out to freight, and in consequence thereof receives his Holl. 329. lading, and afterwards takes in some goods, without leaye of his freighters, and on a