AV'ERAGE, IN MARITIME LAW. The generic sense of this term in maritime law appears to be: the loss of property while embarked upon a maritime adventure. Particular average de notes a loss which is borne by the party whose property is injured or destroyed and toward which others are not hound to contribute. Ex amples of this are: Carrying away of masts by storm; accidental stranding or collision of the vessel; capture of the ship or cargo by an enemy. Petty average, or customary average, is applied to certain expenditures, such as pilotage, an chorage, and towage charges in port, which were re formerly apportioned among the owners of ship and cargo, but which are now generally provided for in bills of lading.
General arcragc was defined by the In ternational Congress at Brussels in 1888 as follows: "An extraordinary expenditure, or a sacrifice voluntarily made by the captain or pursuant to his orders, for the eommon good and safety of the ship and cargo." For the adjustment of general-average losses, a body of regulations was adopted by the Association for the Reform and Codification of the Law of Na tions, at Antwerp, in 1877, and amended by the Association at Liverpool in 1890. It is known as the York-Antwerp Rules, and is often agreed upon by parties to shipping articles as the measure of their duties and liabilities. In the observance of such an agreement, these rules have no binding force upon litigants and are of value only as a careful statement of the views of experts. The law of general average is a part of the maritime law, or the law of the sea, as distinguished from the municipal law, or law of the land. They were introduced into English jurisprudence from the Roman law, which, in turn, had adopted its principles from the laws of Rhodes. A person's right to gen eral-average contribution does not depend upon an express contract, although it may be modi fied by agreement. It rests upon mercantile custom; but a custom so definite and so well understood that every mercantile adventure is entered upon with the actual or presumed knowledge on the part of all interested that the right accompanies, and forms a part of, the transaction. Accordingly, some eminent judges have declared that the right now arises from an implied contract.
In order to constitute a case of general aver age, three things must concur, namely: (1) "A common danger; that is, a danger in which ship, cargo. and crew all participate; a danger imminent and apparently inevitable, except by voluntarily incurring the loss of a portion of the whole to save the remainder. (2) There must he a voluntary jettison, or casting away of some portion of the joint concern, for the pur pose of avoiding this imminent peril; or, in other words, a transfer of the peril from the whole to a particular portion of the whole. (3) This attempt to avoid the imminent peril must be successful." It will be noticed that this statement of the principles by the United States Supreme Court is not broad enough to include eVery case where one person's property is destroyed for the purpose of saving the prop erty of another. The sole object of the sacrifice must be that of saving a ship, its cargo, and crew from a common peril. If the ship or its cargo is sacrificed to save another ship, or other property not included in the common adven ture, it is not a case of general average. Again, it the loss is involuntary, it is not the subject of general average. For example, if a ship is attacked by pirates, or by an enemy, anything voluntarily sacrificed by the master of the ship in buying off or getting rid of the assailant is a general-average loss; while anything captured is not. So, if a vessel lying at its dock, or its cargo, is injured or destroyed by local authori ties, as incidental to the extinguishment of a fire or the preservation of outside property, it is not if ease of general average; but it is such a case if the injury or destruction is authorized by the master, and, therefore, is voluntary. When it is said that the attempt to avoid the peril must be successful, all that is meant is that sonic portion of the common adventure must be saved from the peril. It is not neces sary that the voyage be accomplished, or even that the property saved from the first peril be brought to its destination; its destruction from a second and distinct peril does not affect the general average arising from the first.