A REAL GRIEVANCE OF SHIPOWNERS.

Lyttelton Times, Volume XIII, Issue 762, 25 February 1860, Page 2

A REAL GRIEVANCE OF SHIPOWNERS.

(Prom the ''■'■ Economist.')

''■ We liave..v.ery,bften had occasion to show that's many- of''the - alleged 'grievances of the shipowners' %&ve hot real ones. We have had to profe'."ihat ih^y are suffering, riot frorri the: absence'of .prbteotion, but from quite different; causes.- It has -; been; our ..'duty; to point-out tbaf even if .they w.ere suffering from the removal of protection, it would jiot prove/that they -were entitled to it.. They are but a single class, and have no right that a law in aid of them should; be. levied on other classes. But we think we can show that they labour under , moi*e. than one grievance of detail which can and ought to be removed. Such is almost universally *the case with a highly-protected class.- It relies on the lawa-atherthan on itself, aid does not look into the minuter points of business as much as-other classes do, or as much as it is expedient that it should do. -.

Most' shipowners know that on the; occurrence of a loss there is a very complicatedprocess, or ' what at any rate seems a very complicated process, which is •; called average stating. They are npf aware that under this name several burdens are.imposed upon them which it; is..'.not;..just they should bear.* There aye, two/kinds of average, general and particular. By the present mode of stating both, the shipowner, we believe, suffers; but we shall this week confine bur remarks to the .^defects relating; to the former^ and on another occasion pbint out -those which' relate to the ''latter./:':. -.' 'i-'-'.i '/•■•■■. -; •;;'-' '• ■"'"",:'..

A. "general average" is said to occur whenever there is a loss, the amount of which is to be divided .between..ship, freight, and cargo. It is not at first apparent how this can occur. A . shipowner, it - may be/argued, undertakes to convey a cargo from one port to another; if lie doesi.not do' so, it may be said he should bear the loss, and if the cargo is damaged while in ;hiscarie;he: should-be the sufferer; but no supii::interpretation.; of the ■ contract has 'ever been practically adopted...:'-• The* hardship on the shipowner would be too great. ,He undertakes/only by custom and/by law'tcfdo. all he can to convey goods from one port;to another. If heis preyeritedfrom" so doing by irresistible necessity, by the: perils of the sea, or by the force of the "King'is enemies," he is absolved. The same principle is carried further. If by an irresistible necessity he is forced to incur 'unusual expense, forced.to cut away part; of his ship, forced to throw part of his cargo overboard,—-he is not bound to. suffer the whole loss. These acts are requiaite. for the preservation- of/the cargo, and of the.freight, ,:as: well:as of the ship; and it would, the law says, be unfair, that the ship should bear .the;'/whole cost of acts by which the cargo and freight are;preserved.

'•■ln such cases; the, evident and just principle is; that; the expenses of these generally beneficial acts should be borne-by the three kinds* of property benefited in proportion to their respective value.'•""These acts are equally necessary to the - safety;of the three, and each of thethree should be charged into -a proper ratio. The most; valuable should, bear more, for its owner has "gained/more by its .preservation. The less valuable should bear less for the same reason. /-The practical course-would; evidently in each case be to enumerate all the voluntary acts done- for the .preservation of ship, freight, arid; cargo, with the necessary results of. each—to take 'an account of the cost of- each, arid to apportion;the burden as we have: said.;; And this is the general view which our law takes/ of the .subject; but in working put; these; detail's, it is capricious and inconsistent./..;''; '/ :'/-r-■'-''":/'-'; \'-'S'. : '■•..-. ■

For example, "when niasts arid spars are cut away foiv;:the-benefit: : of all,-the..whole cost ojiig-iif ; evidently; to; be divided between ,ship,/;freight;ji^nd/cargo^: But;in practice, minute distirictions are drawn. .Thus, if the mast so; cut awaylfalls into the water arid knocks off the metal sheathing, the cost- of repairing- the latter-, is not -so :divided, but is thrown on the shipholder', only. •■■ Yet; it is evident that; if it was right "to cut down the mast,-the. cpstbf the whole result should be charged; to the parties who are benefited by ifc. v In this. case the ■ caprice of the law is 'curious| for if the /mast had fallen on the deck and'damaged that, the cost Of repairing it would have been divided between the ship, freight, and cargo, and the shipowner would nothavebeen burdened with the whole. . ' *

Again, if, in consequence of a violent storing a vessel;, springs a/leak, and;: there;is ho way of preserving/.her from foundering/save running, on shore, and; if sbeis' run ashore, and the ship is thereby injured; the cost:of;repairingthat injury .ought evidently to be divided betweenthe; 'three 'things.: preserved /by. the act .which; occasienecliiti ; Yet such is not the cas& ■ J At/present, that cost is borne by the Shipowner, only. r ', : /^;V-; -;;':;-.; : ./;:"/- - '-/

Unreasonable arid .technical distinctions of this kind show that the law relating to these matters was not framed by very comprehensive .minds.. Yin; fact,/ it has' been /framed jfilmpst casually by the usage of.;mercantile countries; and /though,, as wo should expect, it issound ici intention, yet having originated

in times which were ruder than the present, ' it riot unnaturally requires amendment. Such instances as the.above are either small in amount, oivare rare in practice. But there is: one ;case of frequent occurrence and of great importance,.whicli throws aburden on the shipowner that-he ought not to' bear. If a shipowner is forceld, for the preservation of his sliip and.cargo, to deviate from his. proper course, a considerable expense is inevitably incurred by mere lapse of time. Sailors' wages- run on from daiy to day, and if the ship is long detained in port for shelter'or repair, their amount soon becomes considerable. Foreign countries, even , ; the United States, whichhas in general copied our maritime jm-isprudence, consider this sis " general •average," and divide; it between the three contributing properties. But, by a perversity, our laws do not do so. The shipowner alone has to bear the cost of maintaining the men. Even if a mast weve voluntarily cut away, and in "consequence a ship had to make a port to get a new one, the cost of the new mast would be allowed, but the cost of maintaining the crew during the; time would not be allowed, although it might be the greater of the two. ;■''•.'. :'.■".".': ;

' These factsseem at least to prove that there is. much in this subject to ideserve the attention of the ship-owner. It may, indeed, be. alleged that he is compensated for these disadvantages by an in creased rate of freight, at least that he could so compensate'; himself; but, however true this might be, if the disadvantages were u1: ell-known and notorious, it is not so when they are recondite and unfamiliar. Glaring arid familiar burdens on trade are almost always compensated somehow or other, but latent ones are remedied but slowly, if ever. Besides our commercial jurisprudence should be goodj and should hot rely upon the possibility that its injustice may be remedied by the exertions of those who suffer from it. .

* We must own that until recently there was much difficulty in obtaining an intelligent understanding of this subject. Tho books on this subject-were,very technical, aud not ulways very clear. ,There is nowj-however, a very able and perspicuous ' Handbook of Averages,' by Mr. Hopkins, (Smith, JGlder, and Co., 2nd edition, 1859), which contains all that is necessary on the subject. / ■■■'■.;; ":'.--..':" :..•'•- /-■';'