In cases of salvage, the party founds himself upon a meritorious service, and upon an implied understanding that he brings before the court, for its final award, all the property saved, with entire good faith, and he asks a compensation for the restitution of it uninjured and unembezzled by him. The merit is not in saving the property alone, but it is in saving and restoring it to the owners. However meritorious the act of saving may have been, if the property is subsequently lost, and never reaches the owner, no compensation can be claimed or decreed.
11. Distinction Between General and Particular Average.—
The former is a partial loss, voluntarily incurred for common safety, and recompensed by all benefited thereby; the latter is a partial loss involuntarily caused, which must be borne by the party on whom it falls. One of the most approved definitions of general average is,—"All loss which arises in consequence of extraordinary sacrifices made, or expenses, incurred, for the preservation of the ship and cargo, comes within general average, and must be borne proportionately by all who are interested."
In the case of Barnard v. Adams, 10 How. (U. S.) 270, the ingredients of general salvage were thus stated:
In order to constitute a case for general average, three things must concur:
1st. A common danger; a danger in which the 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.
2nd. There must be a voluntary jettison, jactus, or casting away, of some portion of the joint concern for the purpose of avoiding this imminent peril, periculi imminentis evitandi causa, or, in other words, a transfer of the peril from the whole to a particular portion of the whole.
3rd. This attempt to avoid the imminent common peril must be successful.
12. Essential Elements.—
The rule expresses the plainest principles of common justice but is confined to maritime law and within somewhat precise limitations. The sacrifice for which contribution is sought must be directed by the master of the ship or by his authority;[26] it must be voluntary and for the safety of the entire venture;[27] it must be necessary and successful;[28] and neither the party whose fault occasioned the loss nor any outside of the interests represented in the ship and cargo can have contribution.[29] Thus the scuttling of a ship by order of port authorities to extinguish a fire in the hold is not general average, although it would have been if done by order of the master. If the vessel is stranded by force of wind or current, there is no general average loss, while if the master deliberately puts her ashore, choosing the locality to escape a greater danger, it will be considered a case for general average by American law. Where the master threw overboard a quantity of coin, not to save the ship and cargo, but to prevent the money falling into enemy hands, it was not general average although it would have been if his purpose had been to lighten the ship in order to escape. Where the sacrifice is not necessary, in a pecuniary sense, for the common safety, it is not allowed, as where a vessel met a foundering emigrant ship and threw overboard part of its cargo in order to take the passengers on board; this was not a general average loss entitling the owner of the cargo to contribution. When the sacrifice is unsuccessful there is no general average, as where the master of a ship which was dragging her anchors cut away the masts to prevent the drifting, but she finally went ashore; and where the cause of the sacrifice is a fault of the ship or defect in the cargo, contribution is denied; so also when a tug cuts the towline of her barges in a storm to save herself from going ashore with them and thereby saves herself.