Encyclopaedia Britannica Volume 3, Part 1, Slice 1 Part 13

Loss of freight arising from damage to or loss of cargo shall be made good as G.A., either when caused by a G.A. act or when the damage to or loss of cargo is so made good.

RULE XVI.--AMOUNT TO BE MADE GOOD FOR CARGO LOST OR DAMAGED BY SACRIFICE

The amount to be made good as G.A. for damage or loss of goods sacrificed shall be the loss which the owner of the goods has sustained thereby, based on the market values at the date of the arrival of the vessel or at the termination of the adventure.

RULE XVII.--CONTRIBUTORY VALUES

The contribution to a G.A. shall be made upon the actual values of the property at the termination of the adventure, to which shall be added the amount made good as G.A. for property sacrificed; deduction being made from the s.h.i.+powner's freight and pa.s.sage-money at risk, of such port charges and crew's wages as would not have been incurred had the s.h.i.+p and cargo been totally lost at the date of the G.A. act or sacrifice, and have not been allowed as G.A.; deduction being also made from the value of the property of all charges incurred in respect thereof subsequently to the G.A. act, except such charges as are allowed in G.A.

Pa.s.sengers' luggage and personal effects, not s.h.i.+pped under bill of lading, shall not contribute to G.A.

RULE XVIII.--ADJUSTMENT

Except as provided in the foregoing rules, the adjustment shall be drawn up in accordance with the law and practice that would have governed the adjustment had the contract of affreightment not contained a clause to pay G.A. according to these rules.

The above rules differ in some important respects from English common law, and from former English practice. They follow ideas upon the subject of G.A. which have prevailed in practice in foreign countries (though often in apparent opposition to the language of the codes), in preference to the more strict principle of the common law applied by English courts. That principle requires that, in order to have the character of G.A. a sacrifice or expenditure must be made for the common _safety_ of the several interests in the adventure and under the pressure of a common risk. It is not enough that the sacrifice or expenditure is prudent, or even necessary to enable the common adventure to be completed. G.A., on the English view, only arises where the _safety_ of the several interests is at stake. "The idea of a common commercial adventure, as distinguished from the common safety from the sea," is not recognized. It is not sufficient "that an expenditure should have been made to benefit both cargo owner and s.h.i.+powner."[1]

[Sidenote: Port of refuge expenses.]

Thus expenses incurred after s.h.i.+p and cargo are in safety, say at a port of refuge, are not generally, by English law, to be treated as G.A.; although the putting into port may have been for safety, and therefore a G.A. act.

If the putting into port has been necessitated by a G.A. sacrifice, as by cutting away the s.h.i.+p's masts, the case is different; the port expenses, the expenses of repairing the G.A. damage, and the incidental expenses of unloading, storing and reloading the cargo are, in such a case, treated as consequences of the original sacrifice, and therefore subjects for contribution. But where the reason for putting in is to avoid some danger, such as a storm or hostile cruiser, or to effect repairs necessitated by some _accidental_ damage to the s.h.i.+p, the G.A. sacrifice is considered to be at an end when the port has been reached, if the s.h.i.+p and cargo are then in physical safety. The subsequent expenditure in the port is said not to flow from that sacrifice, but from the necessity of completing the voyage, and is incurred in performance of the s.h.i.+powner's obligation under his contract. The practice of English average adjusters has indeed modified this strict view by treating the expense of _unloading_ as G.A.; but it may well be doubted whether that practice can be legally supported. Moreover, expenditure in the port which is incurred in protecting the cargo as in warehousing it, is by English practice treated as a charge to be borne by the cargo for whose benefit it was incurred.

If we turn now to York-Antwerp Rule X., it will be seen that a much broader view is adopted. Whatever the reason for putting into the port of refuge, provided it was necessary for the common safety, the expenses of going in, and the consequent expenses of getting out (if she sails again with all or part of her original cargo), are allowed as G.A., Rule X. (a). Further, the cost of discharging the cargo to enable damage to the s.h.i.+p to be repaired, whether caused by sacrifice or by accident during the voyage, is to be allowed as G.A., "if the repairs were necessary for the safe prosecution of the voyage," Rule X. (b). And that is to be so even where such repairs are done at a port of _call_, as well as where done at a port of _refuge_.

Again, when the cost of discharging is treated as G.A., so also are to be the expenses of storing the cargo on sh.o.r.e, and of reloading and stowing it on board, after the repairs have been done (Rule X. (c)), together with any damage or loss incidental to those operations (Rule XII.).

Further, by Rule XI. the wages of the master, officers and crew, and the cost of their maintenance, during the detention of a s.h.i.+p under the circ.u.mstances, or for the purpose of the repairs mentioned in Rule X., are to be allowed in G.A. It is questionable whether English law allows the wages and maintenance of the crew at a port of refuge in any case. Where the detention is to repair _accidental_ damage it seems clear that they are not allowed. And in practice under common law, the allowance is never made; so that Rule XI. is an important concession to the s.h.i.+powner. Like the changes introduced by Rule X., it is a change towards the practice in foreign countries.

It may be noted that the rules do not afford equal protection to a s.h.i.+pper in the comparatively infrequent case of his being put to expense by the delay at a port of refuge. Thus a s.h.i.+pper of cattle is not ent.i.tled to have the extra wages and provisions of his cattlemen on board, nor the extra fodder consumed by the cattle during the stay at a repairing port, made as good as G.A. under Rules XI. and X. (_Anglo-Argentine &c. Agency_ v.

_Temperley s.h.i.+pping Co._, 1899, 2 Q.B. 403).

[Sidenote: General average sacrifices.]

As to the acts which amount to G.A. sacrifices, as distinguished from expenditures, the York-Antwerp Rules do not much alter English common law.

They do, however, make definite provisions upon some points on which authority was scanty or doubtful. (See Rules I.-IX.) And in Rule I., as to jettison of deck cargo, a change is made from the common law rule, for the jettison is not allowed as G.A. even though the cargo be carried on deck in accordance with an established custom of the particular trade.

Rule III. deals with damage done in extinguis.h.i.+ng fire on board a s.h.i.+p.

Modern decisions have cleared away the old doubts whether such damage to s.h.i.+p or cargo should, at law, be allowed in G.A. But recent cases in the United States have raised the question whether the allowance should be made where the fire occurs in port, and is extinguished, not by the master, but by a public authority acting in the interests of the public. The Supreme Court of the United States decided against the allowance in 1894 in a case of _Ralli_ v. _Troup_ (157 U.S. 386). The s.h.i.+p had there been scuttled to put out a fire on board, by the port authority, acting upon their own judgment, but with the a.s.sent of the master. It was held that the damage suffered by s.h.i.+p and cargo ought not to be made good by G.A. contributions; for the sacrifice had not been made "by some one specially charged with the control and safety of that adventure," but was the compulsory act of a public authority. On the other hand, in the English case of _Papayanni_ v.

_Grampian S.S. Co._ (I. Com. Ca. 448), Mathew, J., held that the scuttling of a s.h.i.+p at a port of refuge in Algeria, by orders of the captain of the port, was a G.A. act. It had been done in the interest of s.h.i.+p and cargo, and there was no evidence of any other motive.

Rule V. deals with the question whether, and under what conditions, a voluntary stranding of the s.h.i.+p is a G.A. act, in a manner which will probably be held to express the law in England when the matter comes up for decision.

Rules VI. and VII. deal with the damage sustained by the s.h.i.+p, or her appliances, in efforts to force her off the ground when she has stranded.

Such efforts involve an abnormal use which is likely to cause damage to sails and spars, or to engines and boilers; and they are treated as acts of sacrifice. The case of "The Bona," 1895 (P. 125) shows that the rules are in accord with English law upon the point. The court of appeal held that both the damage sustained by the engines while worked to get the s.h.i.+p off, and the coal and stores consumed, were subjects for G.A. contribution at common law.

[v.03 p.0057] Rule VIII. allows as G.A. any damage sustained by cargo when discharged and, say, lightered for the purpose of getting the s.h.i.+p off a strand. And the corresponding damage in the case of cargo discharged at a port of refuge to enable repairs to be done to the s.h.i.+p is allowed by Rule XII. But in the latter case the allowance does not expressly extend to damage sustained while stored on land. Whether the law would require contribution to a loss of goods, say, by thieves or by fire, while landed for repairs, is not clear. Where the landing has been necessitated by a G.A. act, as cutting away masts, it would seem that the loss ought to be made good, as being a result of the special risks to which those goods have thereby been exposed. The risks which they would have run if they had remained on board throughout are taken into account, as will presently appear, in estimating _how much_ of the damage is to be made good.

Where cattle were taken into a port of refuge in Brazil, owing to accidental damage to the s.h.i.+p, with the result that they could not legally be landed at their destination (Deptford), and had to be taken to another port (Antwerp), at which they were of much less value, this loss of value was allowed in G.A. (_Anglo-Argentine &c. Agency_ v. _Temperley s.h.i.+pping Co._, 1899, 2 Q.B. 403).

The case of a stranded s.h.i.+p and cargo often gives rise to difficulty as to whether the cost of operations to lighten the s.h.i.+p, and afterwards to get her floated, should be treated as G.A. expenditure, or as expenses separately incurred in saving the separate interests. The true conclusion seems to be that either the whole operation should be treated as one for the common safety, and the whole expense be contributed to by all the interests saved, or else the several parts of the operation should be kept distinct, debiting the cost of each to the interests thereby saved. Which of these two views should be adopted in any case seems to depend upon the motives with which the earlier operations (usually the discharge of the cargo) were presumably undertaken. It may, however, happen that this test cannot be applied once for all. Take the case of a stranded s.h.i.+p carrying a bulky cargo of hemp and grain, but carrying also some bullion. Suppose this last to be rescued and taken to a place of safety at small expense in comparison with its value. It may well be that that operation must be regarded as done in the interest simply of the bullion itself, but that the subsequent operations of lightening the s.h.i.+p and floating her can only be properly regarded as undertaken in the common interest of s.h.i.+p, hemp, grain and freight. In such a case there will be a G.A. contribution towards those later operations by those interests. But the bullion will not contribute; it will merely bear the expense of its own rescue (_Royal Mail S. P. Co._ v. _English Bank of Rio de Janeiro_, 1887, 19 Q.B.D. 362).

The York-Antwerp Rules have not only had the valuable result of introducing uniformity where there had been great variety, and corresponding certainty as to the principles which will be acted upon in adjusting any G.A. loss, but also they have introduced greater clearness and definiteness on points where there had been a want of definition. Thus Rule XIII. has laid down a careful and definite scale to regulate the deductions from the cost of repairs, in respect of "new for old," in place of the former somewhat uncertain customary rules which varied according to the place of adjustment; while at the same time the opportunity has been taken of adapting the scale of deductions to modern conditions of s.h.i.+pbuilding. And Rule XVII. lays down a rule as to contributory values in place of the widely varying rules of different countries as to the amounts upon which s.h.i.+p and freight shall contribute (cf. Gow, _Marine Insurance_, 305).

It may be of interest to refer briefly to one or two main principles which govern the _adjustment_ (_q.v._) of general average, _i.e._ the calculation of the amounts to be made good and paid by the several interests, which is a complicated matter. The fundamental idea is that the several interests at risk shall contribute in proportion to the benefits they have severally received by the completion of the adventure. Contributions are not made in proportion to the amounts at stake when the sacrifice was made, but in proportion to the results when the adventure has come to an end. An interest which has become lost after the sacrifice, during the subsequent course of the voyage, will pay nothing; an interest which has become depreciated will pay in proportion to the diminished value. The liability to contribute is inchoate only when the sacrifice has been made. It becomes complete when the adventure has come to an end, either by arrival at the destination, or by having been broken up at some intermediate point, while the interest in question still survives. To this there is one exception, in the case of G.A. _expenditure_. Where such expenditure has been incurred by the owner of one interest, generally by the s.h.i.+powner, the repayment to him by the other interests ought not to be wholly dependent upon the subsequent safety of those interests at the ultimate destination. If those other interests or some of them arrive, or are realized, as by being landed at an intermediate port, the rule (as in the case of G.A. sacrifices) is that the contributions are to be in proportion to the arrived or realized values.

But if all are lost the burden of the expenditure ought not to remain upon the interest which at first bore it; and the proper rule seems to be that contributions must be made by all the interests which were at stake when it was made, in proportion to their _then_ values.

Again, the object of the law of G.A. is to put one whose property is sacrificed upon an equal footing with the rest, not upon a better footing.

Thus, if goods to the value of 100 have been thrown overboard for the general safety, the owner of those goods must not receive the full 100 in contribution. He himself must bear a part of it, for those goods formed part of the adventure for whose safety the jettison was made; and it is owing to the partial safety of the adventure that any contribution at all is received by him. He, therefore, is made to contribute with the other saved interests towards his own loss, in respect of the amount "made good"

to him for that. The full 100 is treated as the amount to be made good, but the owner of the goods is made to contribute towards that upon the sum of 100 thus saved to him.

The same principle has a further consequence. The amount to be made good will not necessarily be the value of the goods or other property in their condition at the time they were sacrificed; so to calculate it would in effect be to withdraw those goods from the subsequent risks of the voyage, and thus to put them in a better position than those which were not sacrificed. Hence, in estimating the amount to be made good, the value of the goods or property sacrificed must be estimated _as on arrival_, with reference to the condition in which they would probably have arrived had they remained on board throughout the voyage.

The liability to pay G.A. contributions falls primarily upon the owner of the contributing interest, s.h.i.+p, goods or freight. But in practice the contributions are paid by the insurers of the several interests. Merchants seldom have to concern themselves with the subject. And yet in an ordinary policy of insurance there is no express provision requiring the underwriter to indemnify the a.s.sured against this liability. The policy commonly contains clauses which recognize such an obligation, _e.g._ a warranty against average "unless general," or an agreement that G.A. shall be payable "as per foreign statement," or "according to York-Antwerp Rules"; but it does not directly state the obligation. It a.s.sumes that. The explanation seems to be that the practice of the underwriter to pay the contribution has been so uniform, and his liability has been so fully recognized, that express provisions were needless. But one result has been that very differing views of the ground of the obligation have been held.

One view has been that it is covered by the sue and labour clause of an ordinary policy, by which the insurer agrees to bear his proportion of expenses voluntarily incurred "in and about the defence, safeguard and recovery" of the insured subject. But that has been held to be mistaken by the House of Lords (_Aitchison_ v. _Lohre_, 1879, 4 A.C. 755). Another view is that the underwriter impliedly undertakes to repay sums which the law may require the a.s.sured to pay towards averting losses which would, by the contract, fall upon the underwriter. Expenses voluntarily incurred by the a.s.sured with that object are expressly made repayable by the sue and labour clause of the policy. It might well be implied that payments compulsorily required from the a.s.sured by law for contributions to G.A., or as salvage for services by salvors, will be undertaken or repaid by the underwriter, the service being for his benefit. But the decision in _Aitchison_ v.

_Lohre_ negatives this ground also. The claim was against underwriters on a s.h.i.+p which had been so damaged that the cost of repairs had exceeded her insured value. A claim for the s.h.i.+p's contribution to certain salvage and G.A. expenses which had been incurred, over and above the cost of repairs, was disallowed. The view seems to have been that the insurer is liable for salvage and G.A. payments as losses of the subject insured, and therefore included in the sum insured, not as collateral payments made on his behalf.

This bases the claim against the insurer upon a fiction, for there has been no loss of [v.03 p.0058] the subject insured; in fact, the payment has been for averting such a loss. And it suggests that the insurer is not liable for salvage where the policy is free of particular average, which does not accord with practice.

An important question as to an insurer's liability for G.A. arose in the case of the _Brigella_ (1893, P. 189), where a s.h.i.+powner had incurred expenses which would have been the subject of G.A. contributions, but that he alone was interested in the voyage. There were no contributories. He claimed from the insurers of the s.h.i.+p what would have been the s.h.i.+p's G.A.

contribution had there been other persons to contribute in respect of freight or cargo. The claim was disallowed on the ground that there could be no G.A. in such circ.u.mstances, and therefore no basis for a claim against the insurer. The liability of the insurer was thus made to depend, not upon the character of the loss, but upon the fact or possibility of contribution. But this was not followed in _Montgomery_ v. _Indemnity Mutual M. I. Co._ (1901, 1 K.B. 147). There s.h.i.+p, freight and cargo all belonged to the same person. He had insured the cargo but not the s.h.i.+p. The cargo underwriters were held liable to pay a contribution to damage done to the s.h.i.+p by cutting away masts for the general safety. The loss was in theory spread over all the interests at risk, and they had undertaken to bear the cargo's share of such losses. Their liability did not depend upon the accident of whether the interests all belonged to one person or not.

This agrees with the view taken in the United States.

As to _Particular Average_, see under INSURANCE: _Marine_.

AUTHORITIES.--Lowndes on _General Average_ (4th ed., London, 1888); Abbott's _Merchant s.h.i.+ps and Seamen_ (14th ed., London, 1901); Arnould's _Marine Insurance_ (7th ed., London, 1901); Carver's _Carriage by Sea_ (4th ed., London, 1905).

(T. G. C.)

[1] Per Bowen, L.J., in _Svensden_ v. _Wallace_, 1883, 13 Q.B.D. at p. 84.

AVERNUS, a lake of Campania, Italy, about 1 m. N. of Baiae. It is an old volcanic crater, nearly 2 m. in circ.u.mference, now, as in Roman times, filled with water. Its depth is 213 ft., and its height above sea-level 3 ft.; it has no natural outlet. In ancient times it was surrounded by dense forests, and was the centre of many legends. It was represented as the entrance by which both Odysseus and Aeneas descended to the infernal regions, and as the abode of the Cimmerii. Its Greek name, [Greek: Aornos], was explained to mean that no bird could fly across it. Hannibal made a pilgrimage to it in 214 B.C. Agrippa in 37 B.C. converted it into a naval harbour, the _Portus Iulius_; joining it to the Lacus Lucrinus by a ca.n.a.l, and connecting the latter with the sea, he reduced the distance to c.u.mae by boring a tunnel over m. in length, now called Grotta della Pace, through the hill on the north-west side of Lake Avernus. After s.e.xtus Pompeius had been subdued, the chief naval harbour was transferred to Misenum. Nero's works for his proposed ca.n.a.l from Baiae to the Tiber (A.D. 64) seem to have begun near Lake Avernus; indeed, according to one theory, the Grotta della Pace would be a portion of this ca.n.a.l. On the east side of the lake are remains of baths, including a great octagonal hall known as the Temple of Apollo, built of brickwork, and belonging to the 1st century. The so-called Grotto of the c.u.maean Sibyl, on the south side, is a rock-cut pa.s.sage, ventilated by vertical apertures, possibly a part of the works connected with the naval harbour. To the south-east of the lake is the Monte Nuovo, a volcanic hill upheaved in 1538, with a deep extinct crater in the centre.

To the south is the Lacus Lucrinus.

See J. Beloch, _Campanien_ (2nd ed., Breslau, 1890), pp. 168 seq.

(T. AS.)

AVERROES [Ab[=u]l-Wal[=i]d Mu[h.]ammad ibn-A[h.]mad Ibn-Mu[h.]ammad ibn-Rushd] (1126-1198), Arabian philosopher, was born at Cordova. His early life was occupied in mastering the curriculum of theology, jurisprudence, mathematics, medicine and philosophy, under the approved teachers of the time. The years of his prime fell during the last period of Mahommedan rule in Spain under the Almohades (_q.v._). It was Ibn-Tufail (Abubacer), the philosophic vizier of Yusef, who introduced Averroes to that prince, and Avenzoar (Ibn-Zuhr), the greatest of Moslem physicians, was his friend.

Averroes, who was versed in the Malekite system of law, was made cadi of Seville (1169), and in similar appointments the next twenty-five years of his life were pa.s.sed. We find him at different periods in Seville, Cordova and Morocco, probably as physician to Yusef al-Mansur, who took pleasure in engaging him in discussions on the theories of philosophy and their bearings on the faith of Islam. But science and free thought then, as now, in Islam, depended almost solely on the tastes of the wealthy and the favour of the monarch. The ignorant fanaticism of the mult.i.tude viewed speculative studies with deep dislike and distrust, and deemed any one a Zendik (infidel) who did not rest content with the natural science of the Koran. These smouldering hatreds burst into open flame about the year 1195.

Averroes was accused of heretical opinions and pursuits, stripped of his honours, and banished to a place near Cordova, where his actions were closely watched. At the same time efforts were made to stamp out all liberal culture in Andalusia, so far as it went beyond the little medicine, arithmetic and astronomy required for practical life. But the storm soon pa.s.sed. Averroes was recalled to Morocco when the transient pa.s.sion of the people had been satisfied, and for a brief period survived his restoration to honour. He died in the year before his patron, al-Mansur, with whom (in 1199) the political power of the Moslems came to an end, as did the culture of liberal science with Averroes. The philosopher left several sons, some of whom became jurists like his own grandfather. One of them has left an essay, expounding his father's theory of the intellect. The personal character of Averroes is known to us only in a general way, and as we can gather it from his writings. His clear, exhaustive and dignified style of treatment evidences the rect.i.tude and n.o.bility of the man. In the histories of his own nation he has little place; the renown which spread in his lifetime to the East ceased with his death, and he left no school. Yet, from a note in a ma.n.u.script, we know that he had intelligent readers in Spain more than a century afterwards. His historic fame came from the Christian Schoolmen, whom he almost initiated into the system of Aristotle, and who, but vaguely discerning the expositors who preceded, admired in his commentaries the acc.u.mulated results of two centuries of labours.

The literary works of Averroes include treatises on jurisprudence, grammar, astronomy, medicine and philosophy. In 1859 a work of Averroes was for the first time published in Arabic by the Bavarian Academy, and a German translation appeared in 1873 by the editor, J. Muller. It is a treatise ent.i.tled _Philosophy and Theology_, and, with the exception of a German version of the essay on the conjunction of the intellect with man, is the first translation which enables the non-Semitic scholar to form any adequate idea of Averroes. The Latin translations of most of his works are barbarous and obscure. A great part of his writings, particularly on jurisprudence and astronomy, as well as essays on special logical subjects, prolegomena to philosophy, criticisms on Avicenna and Alfarabius (F[=a]r[=a]b[=i]), remain in ma.n.u.script in the Escorial and other libraries. The Latin editions of his medical works include the _Colliget_ (_i.e._ _Kulliyyat_, or summary), a _resume_ of medical science, and a commentary on Avicenna's poem on medicine; but Averroes, in medical renown, always stood far below Avicenna. The Latin editions of his philosophical works comprise the _Commentaries on Aristotle_, the _Destructio Destructionis_ (against Ghaz[=a]li), the _De Substantia Orbis_ and a double treatise _De Animae Beat.i.tudine_. The Commentaries of Averroes fall under three heads:--the larger commentaries, in which a paragraph is quoted at large, and its clauses expounded one by one; the medium commentaries, which cite only the first words of a section; and the paraphrases or a.n.a.lyses, treatises on the subjects of the Aristotelian books. The larger commentary was an innovation of Averroes; for Avicenna, copied by Albertus Magnus, gave under the rubrics furnished by Aristotle works in which, though the materials were borrowed, the grouping was his own. The great commentaries exist only for the _Posterior a.n.a.lytics_, _Physics_, _De Caelo_, _De Anima_ and _Metaphysics_. On the _History of Animals_ no commentary at all exists, and Plato's _Republic_ is subst.i.tuted for the then inaccessible _Politics_.

The Latin editions of these works between 1480 and 1580 number about 100.

The first [v.03 p.0059] appeared at Padua (1472); about fifty were published at Venice, the best-known being that by the Juntas (1552-1553) in ten volumes folio.

See E. Renan, _Averroes et l'Averrosme_ (2nd ed., Paris, 1861); S. Munk, _Melanges_, 418-458; G. Stockl, _Phil. d. Mittelalters_, ii. 67-124; _Averroes (Vater und Sohn), Drei Abhandl. uber d. Conjunction d. separaten Intellects mit d. Menschen_, trans. into German from the Arabic version of Sam. Ben-Tibbon, by Dr J. Hercz (Berlin, 1869); T. J. de Boer, _History of Philosophy in Islam_ (London, 1903), ch. vi.; A. F. M. Mehren in _Museon_, vii. 613-627; viii. 1-20; Carl Brockelmann, _Geschichte der arabischen Litteratur_ (Weimar, 1898), vol. i. pp. 461 f. See also ARABIAN PHILOSOPHY.

(W. W.; G. W. T.)

AVERRUNCATOR, a form of long shears used in arboriculture for "averruncating" or pruning off the higher branches of trees, &c. The word "averruncate" (from Lat. _averruncare_, to ward off, remove mischief) glided into meaning to "weed the ground," "prune vines," &c., by a supposed derivation from the Lat. _ab_, off, and _eruncare_, to weed out, and it was spelt "aberuncate" to suit this; but the _New English Dictionary_ regards such a derivation as impossible.