Everard v.Paterson
| Jurisdiction | England & Wales |
| Judgment Date | 25 May 1816 |
| Date | 25 May 1816 |
| Court | Exchequer |
English Reports Citation: 128 E.R. 1178
IN THE EXCHEQUER-CHAMBER.
S. C. 2 Marsh. 304.
1178 EVERARD V. PATERSON 6 TAUNT. 624. rewards may be promised by articles to the widows and children of those who may unfortunately lose their lives in the engagement ; 6 the extraordinary gratuity which a master may have promised his men, to animate them to a stout defence, or salvage of the vessel (a). Magens adopts this doctrine as an ordinance of Harnburgh ; it is therefore, as well the opinion of Magens, as of an eminent civilized country. So, another author (b), commenting on the 9th article of the laws of Oleron, saith, "And in the same manner it is ordained to make an equal contribution for damages sustained by rovers and pirates;" [which must necessarily mean in the defence, as all writers agree that goods captured by pirates are not the subject of contribution ;] " the good design of which law, is, to excite every individual mariner and other person in the ship, to do his duty, to which the consideration and apprehension of his own particular risk will not a little contribute.' The several parts of this case must he divided, and it is extraordinary, that the legislature of Hamburgh made this ordinance contrary to the decision cited by Kuricke respecting damage to the ship. Emerigon himself, though he denies that the damage to the ship is general average, yet has a separate section in which he calls matelots blesses general average. Not a single writer says that seamen's wounds are not general average. As for the expenditure of powder, it comes literally within the term jactus ; it is thrown overboard, and it is so disposed of for the bane-[624]-fit of others : it is equally voluntary, as the throwing over of goods for lightening the ship. Cur. adv. vult. GIBBS C. J. on this day, after stating the pleadings and the evidence, now delivered the judgment of the Court. The question in this case is, whether the articles on which the Plaintiffs seek to recover, do or do not fall under the denomination of general average, as it is understood by merchants in this country. The doctrine of general average has its origin in the Rhodian law, ut si levandre navis gratia jactus mercium factus est, omnium contributione sarciatur, quod pro omnibus datum est. Different countries of Europe have made different regulations, all professing to be founded on the Rhodian law, and differing from each other. The commentators on them have also differed. We have no such regulations in this country, and must therefore expound the law, as it affects this question, upon principle. The losses for which the Plaintiffs seek to recover this contribution, are of three description's : first, the damage sustained by the hull and rigging of the vessel, and the cost of her repairs; 2dly, the expence of the cure of the wounds received by the crew in defending the vessel; 3dly, the expenditure of powder and shot in the engagement. Nothing in foreign jurists ought to govern our judgment on these points, unless they have been sanctioned by received principles, decided cases, or the general usage of merchants. But...
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