CHAP. CXX. Of Averidg and Contribution, according to the Law Marine, if Goods are cast overboard in a storm, &c. and what Goods may in such a case be Ejected, and what not.
IF when a Ship is Fraighted, and at Sea a storm arises, the Master if he finds the Ship in danger, may by the consent or ra∣ther Page 348 by consulting his Mariners throw such heavy Goods overboard, as may tend to the Lightning or saving the Ship, and if the Mariners refuse to consent, then it is Law∣ful for him to command it to be done; always provided that he throw over the coarsest Goods, and those that are most Ponderous, and in that case the rest of the Goods in the Ship, shall contribute to those thrown over∣board; the Sailers Cloaths and Provision ex∣cepted. If they are thrown over before half the Voyage is made, then the contribution shall be according to what the Goods cost, but if when above half the Voyage then proporti∣onable to what those that remain are sold for. But upon the arrival of the Ship at the Port intended, the Master and Part of his Crue must swear that such Goods were thrown over for the preservation of the Ship, and the rest of the Goods; and if af∣terwards the Merchant bring his Action a∣gainst the owners or Master, they may plead the special Matter, which will remain in Bar to the Plaintifs proceedings; but if any of the Ships Tackling be lost, no Ave∣ridge or Contribution shall be made, unless the Masts be cut by the Board, &c. or if a∣ny Goods be secretly brought into the Ship, contrary to the knowledg of the Master and Purser, be ejected, no contribution shall be Page 349 made: And by the Law Marine, the Master may refuse (in case of ejection) to deliver the remainder of the Goods before the Con∣tribution is setled, or if in a storm part of the Goods are dammaged, without any neg∣lect of the Master or Sailers, such Goods for so much as they are dammaged, ought to come into the contribution.
If two Ships meet and strike each other, and if it can be proved that either of them did it willfully or by carelesness, then that Ship shall satisfy the damage received by the other, but if either Ships crew Swear their inno∣cency, then the dammage is to be Levyed proportionable between them; if any Eje∣ction of Goods happen by the indiscretion of the stowers in lading the Ship above the Birth mark, or the like; then the Master or Owners ought to make satisfaction. If when a Vessel is entering a Port or otherwise part of the Goods be put into a Lighter or Ship-Boat, and the Boat be cast away, there Contribution must be made; but if the Ship be cast away, and the Lighter or Boat saved, then no Contribution; for note where the Ship at any time Perishes, tho a great part of the Goods be saved, yet they allow no Contribution.
If a Ship be taken by Pirates or Enemies, and the Master contracts with them for Page 350 the dismission of the Ship at such a Summ of money, and till the same be pay'd yields himself Prisoner, in that case Contribution must be levyed upon the Ship, and lading for the Ransom of the said Master; and so where a Pirate by consent takes part of the Goods to spare the rest, Contribution must be made, but if he takes them by force or at his own pleasure, then no con∣tribution is to be made, unless the Mer∣chants yield so to do after the Ship is Robbed, but if taken by an Enemy, Letter of Marque or Reprisal the contrary. If Jew∣els be on Board in a Box and not discover∣ed, and they be cast overboard, Contribution shall be for no more then they appeared, viz. a Parcel. If any thing in a storm be cast into the Sea, and afterward recovered, then Contribution shall be made for no more then the damage sustained. The Ma∣ster and Purser in case of a storm shall con∣tribute towards Goods Ejected, for the pre∣servation of the Ship and Passenger for such Wares as they have; and if they have no Wares, then for their Cloaths, Rings, &c. according to estimation.
Contribution is to be pay'd for a Pilots Fee, for bringing a Ship safe into any Harbour where she is not bound.
If the Master of a Ship, after he has Page 351 received his Complements, takes in Goods contrary to the knowledge of the Mer∣chant, and part of the Merchants Goods in case of a storm are thrown overboard, then the Master is lyable to make Satisfaction.
If Contribution be setled, and the Mer∣chant will not consent to pay it, the Ma∣ster may refuse delivering the Goods, and if an Action be brought, he may Barr the Plaintif by pleading the special matter, yet in a storm there are some Ladings, which ought not to be ejected. As Pieces of Or∣dnance, Ammunition, or Provisions for the relief of a City Besieged, or in danger so to be, for there the Law implyes, that the Subject ought to prefer the good of his Prince, before his own life.
