GENERAL AVERAGE (also called gross) con sists of expense purposely incurred, sacrifice made, or damage sustained, for the common safety of the vessel, freight and cargo, or two of them, at risk, and is to be contributed for by the several interests in the propor tion of their respective values exposed to the common danger, and ultimately surviving, including the amount of expense, sacrifice, or damage so incurred in the contributory val ue; 2 Phill. Ins. § 1269; and see Code de Com. tit. xi.; Aluzet, Trait. des Av. cu.; Sturgess v. Cary, 2 Curt. C. C. 59, Fed. Cm No. 13,572; Greely v. Ins. Co., 9 Cush. (Mass.) 415; MeLoon's Adm'r v. Cummings, 73 Pa. 98; Star of Hope v. Annan, 9 Wall. (U. S.) 203, 19 L. Ed. 638; Bailey, Gen. Av.; Pars. Mar. Law, ch. xi.; Stevens, Av.; Benecke, Av.; Pothier, Av.; Lex Rhodia, Dig. 14. 2. 1.
General average, is a comparatively mod em expression. The early writers expressed the same idea by the words "averidge," or "contribution," which with them were syn onymous terms; 21 L. Quart. Rev. 155. In the common memorandum which was added to marine policies about 1749, the words, general and average, occur for the first time; id.; Loundes, Mar. Ins. 206 (2d ed. 1885). By this time the word average had acquired the dual meaning still attaching to it: a particular, partial loss, and a contribution to the general loss ; it was necessary to in sert the words "unless general" in order to prevent the operation of the exception being extended to losses of the latter class. Lord Mansfield held that the word "unless" meant the same as "except" ; 3 131I1T. 1550. Lord Esher, M. R., said the true construction of the words "free from average unless gener al" was free from partial loss unless it be a general average loss; 22 Q. B. D. 580. The result of these decisions is that, while the assurer is to be excused from paying a loss of the nature of particular average, his pre-existing obligation to contribute to gen eral average, though acknowledged, is left untouched; 21 L. Q. R. 155.
General average is recoverable for loss by jettison; 19 C. B. N. S. 563; for ship's stores used to fire the donkey-engine which worked the pumps ; 7 L. R. Ex. 39; 2 Q. B. D. 91, 295; and for damage to a cargo caused by pouring on water to extinguish a fire; 8 B. D. 653; The Roanoke, 46 Fed. 297; 4,53 Fed. 270; id., 50 Fed. 161, 8 C. C. A. V.
Prior to the Harter Act, a common carrier by sea could not, by any agreement in the bill of lading, exempt himself from responding to the owner of cargo for damages arising from the negligence of the master or crew of the vessel; Liverpool & Great Western Steam Co. v. Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469,
32 L. Ed. 788; New York C. R. Co. v. Lock wood, 17 Wall. (U. S.)' 357, 21 L. Ed. 627. That act absolved the shipowner from re sponsibility for the negligence of the master and crew under certain circumstances. By its first and second sections shipowners are prohibited from inserting in their bills of lading agreements limiting their liability in certain respects. It was held under this act that if a vessel, seaworthy at the begin ning of the voyage, is afterwards stranded by the negligence of her master, the ship owner, who has exercised due diligence to make his vessel seaworthy, properly manned, equipped and supplied, under its provisions has no right to general average contribution for sacrifices made and suffered by him sub sequent to the stranding, in successful ef forts to save vessel, freight, and cargo ; The Irrawaddy, 171 II. S. 187, 18 Sup. Ct. 831, 43 L. Ed. 130. This case was distinguished in a later case where it was held that a gen eral average agreement inserted in bills of lading providing that if the owner of a ship shall have exercised due diligence to make the ship in all respects seaworthy and prop erly manned, equipped and supplied, the car go shall contribute in general average with the shipowner even if the loss resulted from negligence in the management of the ship, is valid under the Harter Act, and entitles the shipowner to collect a general average contribution from the cargo owners in re spect to sacrifices made and extraordinary expenses incurred by him for the common benefit and safety of ship, cargo, and freight subsequent to a negligent stranding ; The Jason, 225 U. S. 32, 32 Sup. Ct. 560, 56 L. Ed. 969. That in view of the provisions of section 3 of the act and of the general aver age clause the cargo owners have a right to contribution from the shipowner for sacri fices made subsequent to negligent stranding in order to save the joint interests from com mon peril is held ; The Roanoke, 46 Fed. 297 ; id., 59 Fed. 161; The Rapid Transit, 52 Fed. 320; The Santa Ana, 154 Fed. 800, 84 C. C. A, 312. There is a similar statute in Eng land; 45 L. J. Q. B. 646; 8 Q. B. D. 653; [1908] 1 K. B. 51, affirmed [1908] App. Cas. 431.