91 
 
 Cornell University Law Library 
 
 THE GIFT OF 
 
 Hodg.sonj,,.Rus.s.,.. Andre^^ 
 
 Woods ScG-oodyear 
 .8.QQ....M...&...a]....Bldg...,.B.uff.al,0.,...M...Y. 
 
 Date .S.eptember...,9,.,. 1957 
 
Cornell University Library 
 KF1108.D62P7 
 
 A practical treatise on the adjustment o 
 
 3 1924 019 332 091 
 
 "■^.^^w Or 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924019332091 
 
Books Recently Published 
 
 BY 
 
 1S3 PEARL AND 86 BEAVER STREETS, NEW YORK. 
 
 THE LAW OF SHIPPING, 
 
 And Merchants' and Shipmasters' Guide. 
 
 8 VO. SHKEP. 
 
 By PSA-CTCia B. DIXOIT, Author of Abridgment of the Maritime Law. 
 
 SECOND EDITION. 
 
 Dhxjtbbbd to PTTwnwASRRHj Postage: Fk£e, to any Adcrkss in thx Uiotbd SxAiEa. 
 CONTENTS: 
 
 Chap. 1. Of Merchant Ships, the mode by which property in 
 ships may be acquired, and the rights and liabilities attached to it. 
 
 2. Of Part Owners, their legal relation to each other, and extent 
 of their powers and liabilities. 
 
 3. Of the Authority of the Master, with regard to the employ- 
 ment of the ship. 
 
 4. Of the Authority of the Mate. 
 
 5. Of the Master's Authority over the Mariners. 
 
 6. Of Barratry. 
 
 7 Op the General Duties of the Master and Owners, with 
 regard to Preparation, Commencement, Course and Completion of 
 the voyage. 
 
 8 Of the Earning and Payment of Freight. 
 
 9 Of the Contract op Affreightment by Charter Party. 
 
 10 Of Bills of Lading. 
 
 11 Of Stoppage in Transitu. 
 
 12 Of Pilots. 
 
 13 Of the Shipping Articles, and herein of the hiring of Sea- 
 men generally, and the Statutory Provisions respecting them 
 
 14 Of the Seaworthiness of the Vessel. 
 16 Of the Perils of the Sea. 
 
 16 Of the Medicine Chest. 
 
 17 Of the Supplies required by Statute to be Put on Board. 
 
 18 Of the Earning and Payment of Wages, when the whole 
 wages are to be paid ; cases in which a part only is paid ; service not 
 wholly performed by reason of Death, Shipwreck or Abandonment of 
 the Voyage ; and time at which payment is to be made. 
 
 19 Of the Remedy of Seamen to Obtain Payment of Wages- 
 
20 Of Consuls, their general duties, and particularly witL regard 
 to destitute Seamen. 
 
 21 Of Bills op Exchange. 
 
 22 Of the Revenue Laws 
 
 23 Of Geneeal Average. 
 
 24 Of the Adjustment of General. Average. 
 
 25 Op Particular Average and Partial Loss. 
 
 26 Op Abandonment. 
 
 27 Of Bottomry. 
 
 28 Of Collision. 
 
 29 Of Salvage. 
 
 Appendix, containing a Vocabulary of Sea Terms ; Eules for Stow- 
 age and Dunnage, and many very useful and legally approved forms. 
 
 HAND BOOK 
 
 O F 
 
 MARiJ^E Insurance and average. 
 
 BY FBANCIS B. DIXON, Counsellor at Iiaw, Author of "An Abridement 
 
 of the Maritime Ijaw," alao, of " The Law of Shipping, and 
 
 Merchants' and Ship Masters' Ouide." 
 
 contents: 
 
 CHAP. I. The Master. 
 
 II. On Marine Insurance. 
 
 III. Of the Policy of Insurance. 
 
 IV. Of Valued Policies. 
 
 V. Of Open Policies. 
 
 VI. Of !tosurable Interest. 
 
 Vn. Of Prior Insurance, Double 
 Insurance and Ee-insurance. 
 
 Vm. Of Representation & Con- 
 cealment. 
 
 IX. Of Express Warranties. 
 
 X. Of Implied Warranties. 
 
 XI. Of General Average. 
 
 XII. Adjustment of General Av- 
 erage and Contribution. 
 
 Xin. Of Partial Loss. 
 
 XIV. Of Tot J Loss and Aban- 
 donment. 
 
 XV. Of Bottomry and Respon- 
 dentia. 
 
 GENERAL INDEX. 
 
 NAUTICAL ROUTINE 
 
 AND 
 WIIH 
 
 SHORT RULES IN NAVIGATION. 
 
 BY JOHN MCLEOD MITBPHY AND W. N, JEFFEES, Jr. 
 
A PRACTICAL TREATISE 
 
 ADJUSTMENT 
 
 GENEEAL' AVERAGE 
 
 IN THE UNITED STATES AND OTHER COUNTRIES, 
 
 INCLUDING THK ELEMENTS OF MARITIME AND INSURAINCE LAW, 
 
 ALSO, THE RIGHTS AND LIABILITIES OF UNDKKWRlTtRS 
 
 AND SHIP-OWNERS, AND THE GE.Xf.RAL 
 
 DUTIES OF SHIP-MASTERS. 
 
 BY FRANCIS B. DJXON, 
 
 COUNSELLOR AT LAW AND AVKRAGE ADJUSTER. 
 
 AnTHOB OF "TBI LAW OF SHIPPING;" " BAKD-BOOK OF MAEINK INSUEANOF 
 AND AVEUAQB," ETC, 
 
 NEW YORK. 
 
 PUBLISHED BY HENRY SPEAR, 
 133 Pearl and 86 Beavei- Streets. 
 
 1867. 
 
B ?S^7S 
 
 Eoternd according to Act of Congress, in the year 1867, 
 
 By HENRY SPEAE, 
 
 In the Clerk's Office for the Southern District of the State of New York. 
 
 LoTsroT h, SOH, 
 
 £UE(7IBOTTPEB8 AliD STBBlEOTm!ll& 
 
 16 Vaadewater street N. ,T, 
 
^5^5^ 
 
 PREFACE. 
 
 There is no branch of law in which a treatise, uniting theory witb 
 practice, appears to be so much wanted, as in that which relates to 
 the rights and liabilities of the insurer, and insured, and the adjust- 
 ment of claims arising out of them. 
 
 The author has, in his previous works, endeavored, to some extent, 
 to supply this want, but to avoid their being voluminous and costly, 
 he was compelled to give only a synopsis or digest of the various 
 rules and principles which govern the practice of insurance and 
 maritime law in the United States. 
 
 Reflection and experience have, however, convinced him that the 
 merchant requires not only a competent knowledge of the law of his 
 awn country, but also of those of othei' nations, on subjects to which 
 he may occasionally be obliged to conform. 
 
 So much indeed, is the loss occasioned to the mercantile com- 
 munity and 1.0 the country at large, by the uncertainty as to the rules 
 of law which, in other countries, govern the system of General Aver- 
 age, felt, that an effort has recently been made to establish some 
 uniformity of system, and, if practicable, to reduce the customs and 
 rules of the different maritime nations to some degree of harmony. 
 Delegates were appointed by the Chamber of Commerce and Board 
 of Underwriters of New York, by the Board of Trade and the Board 
 of Underwriters of Boston, and by similar associations in other piu-ts 
 of the United States, to attend a Congress to be held in Glasgow. 
 
 The Conference was held in September, 1860, under the presidency 
 of Lord Brougham and Lord Neaves, and delegates from all parts 
 of the world were present. 
 
 The result of the deliberations and discussions of this convocation, 
 embracing the most intelligent and learned men of Europe and the 
 United States, was the adoption of sundry resolutions, covering some 
 
Vllt. f R E F A C I; . 
 
 disputed points, and providing for the drawing up a bill, with a view 
 to its being enacted into a law by the legislative authorities of the 
 several nations of the world. The draft of a bill was made arid 
 submitted to the National Association held in York, in September, 
 1864, and, after being thoroughly discussed, was rejected, and in its 
 place certain " International General Average Rules " were adopted, 
 and recommended as the basis of " International General Average 
 law," to be established either by legislation, or by clauses inserted 
 in Bills of Lading and Charter Parties. 
 
 Nothing further has been done, and it is feared the task will be 
 found impracticable. The principles' regulating claims in General 
 Average, have, in this country, been settled by a long series of 
 judicial decisions, to say nothing of usages having all the force of 
 law. And most of the continental nations of Europe, have undertaken 
 to regulate the matter by ordinances or codes, many of which are of 
 great antiquity ; the construction of these ancient rules has been 
 fixed by much jurisprudence ; they have been the subject of 
 elaborate- commentaries, and the practice of tl.e respective ports and 
 places where they exist has so long accorded with them, that nothing 
 short of legislative aotioii C:in practically supersede their force. 
 
 Even in Prance, the leading principles of the Commercial Code, 
 established by Napoleon the First, are the same as those of Louis 
 the Fourteenth, on the subject of Average ; and considering that any 
 essential change in respect to this branch of the law, involves a 
 modification of a code which has served as a text for the learned 
 commentaries of Valin, Emerigon, Boulay, Paty, Pardessus and others, 
 I doubt whether it will be practicable to prevail upon that govern- 
 ment to introduce any practices which militate with their code. 
 
 Until the days of Lord Mansfield, the laws and usages of England 
 did not vary essentially from those of the rest of the commercial 
 world ; the system prevailing in that country, at the time of our 
 Revolution, was adopted by us as a part of the common law, and has 
 governed our practice ever since. Great Britain has introduced 
 innovations, some of them under the sanction of courts of law, but 
 more of them as "Customs of Lloyd's," and I apprehend it will be 
 found very difficult to convince Lloyd's Underwriters that those 
 customs, long established by them, ought to be essentially modified. 
 
P E E F A C E . IX. 
 
 Thus we see the diflSculties, apparently existing, against the 
 establishment of an universal system. It is possible it may be 
 ultimately accomplished, and I sincerely hope so ; but, without 
 wishing to discourage the promoters of the scheme, who deserve the 
 warmest thanks of the maritime community for their arduous efforts, 
 I fear the prospec' does not appear very encouraging at present. 
 
 Until some measure of this kind is established, it is highly desirable 
 that merchants and underwriters should be provided with the means 
 of readily obtaining a knowledge of the principles of adjustment which 
 pie vail in other countries besides their own, so that they can calcu- 
 late with some degree of certainty, what will be the indemnity sought 
 and obtained, in the event of their vessel arriving at her port of 
 destination, so damaged by sea perils and sacrifices as to render an 
 adjustment at that place necessary. It is well known, that a ship is 
 frequently owned in one country, insured in another, and bound to a 
 port which has different rules from either of the others. 
 
 Encouraged by the reception my previous works have received, I 
 have felt it a duty to make an effort to supply this desideratum. 
 
 Though I have had access to many foreign adjustments and codes, 
 I have been greatly assisted in my labors by the valuable works 
 which have been published on the subject of insurance, and I am 
 especially indebted to the valuable report of the Hon. William Marvin, 
 one of the delegates to the International Convention. 
 
 For the reasons I have stated, the primary object of the present 
 work has been to illustrate the practice of General Average in the 
 United States and other countries. But no work on the subject of 
 General Average, could leave out the law of Shipping and Insurances 
 as they are so closely connected that they need the mutual illustration 
 they can render each other. I have, therefore, extended the work 
 so as to embrace those topics ; and also endeavored to point out the 
 ship-master's duties in matters growing out of disaster. This has 
 unavoidably increased the size of the work beyond the limit originally 
 intended. The desire to make the law, which regulates the contract, 
 of merchants, well understood, has been my governing ambition — 
 feeling satisfied that I could be engaged in no enterprise that would 
 do more to promote the true interests of commerce. Maritime 
 contracts are the business of every hour, and as merchants cannot 
 
■^ PREFACE. 
 
 resort on all occasions to professional advice they ought themselves 
 to possess sufficient knowledge to enable them to transact their 
 ordinary business without such aid. A man who purchases an estate 
 may act with caution ; but mercantile transactions seldom admit 
 of much deliberation. A merchant, in many cases, must decide at 
 once, and act upon his own judgment ; and a work that will enable 
 him to do so with safety, in a very important branch of his business, 
 and so as sometimes to obviate disputes, cannot fail of being beneficial 
 to him. 
 
 I trust this work will also be found useful to members of my own 
 profession, as a book of reference ; every question discussed has been 
 viewed by the light of judicial decision, and thes cases cited or 
 referred to. 
 
 FRANCIS B. DIXON. 
 
 Boston, Mass., September, 1867. 
 
CONTENTS, 
 
 CHAPTER I. 
 
 
 
 PAGE. 
 
 General Average .... 
 
 15 
 
 CHAPTER II. 
 
 
 International General Average ... 209 
 
 CHAPTER III. 
 Partial Loss 214 
 
 CHAPTER IV. 
 Total Loss and Abandonment ... 271 
 
XII CONTENTS. 
 
 CHAPTER V. 
 
 PAGE. 
 
 Bottomry 309 
 
 CHAPTER VI. 
 Salvage .....-- 321 
 
 CHAPTER VII. 
 Collision 386 
 
 CHAPTER VIII. 
 General Powers and Duties of the Master - 353 
 
 CHAPTER IX. ^ 
 
 Carriage op Goods. 
 
 Earning and Payment of Freight &c. - 379 
 
 CHAPTER X. 
 
 Earning and Payment of Wages - - - 406 
 
CONTENTS. XIII 
 
 CHAPTER XI. 
 
 PAGE. 
 
 Pilots 421 
 
 CHAPTER XII. 
 Maeine Insurance ..... 425 
 
CHAPTER I. 
 
 GEJ^ERAL AVERAGE. 
 
 GENERAL PEIIS'OIPLES. 
 
 Common Interest. 
 
 United States. — General Average is a contribution by- 
 all parties concerned, towards a loss sustained by some 
 of the parties in interest for the common benefit. It is 
 founded upon the idea of copartnership against the ex- 
 traordinary perils of navigation. Whenever an extra- 
 ordinary peril is impending over the whole adventure, 
 and the master, who is the common agent of all con- 
 cerned, acting in good faith and with common discretion, 
 selects a particular part of the property at risk and de- 
 stroys it, or exposes it to some special injury or risk, with 
 a view thereby to avert or mitigate the common danger, 
 the owner of that part is entitled to satisfaction for his 
 loss by an average contribution. 
 
 But press of sail put on a vessel to enable her to wea- 
 
16 GENERAL AVERAGE. 
 
 ther a lee shore, when it is known that the expo- 
 sure will entail loss, although voluntarily done for 
 the general good, does not constitute General Average. 
 Neither does the sacrifice of sails cut up and destroyed 
 to fit the places of other sails previously lost, for they 
 have heen applied only to the purposes originally intend- 
 ed, when put on hoard, i. e. the safe navigation of the 
 ship. The same rule applies to all other materials, but 
 when sacrificed or used for other purposes it constitutes 
 good claim for Average Contribution. 
 
 England. — A loss arising out of extraordinary sacrifi- 
 ces made, or extraordinary expenses incurred, for the 
 joint benefit of ship and cargo. 
 
 The plainest principles of equity require that the sa- 
 crifices so submitted to, should be made good, and the 
 expenses incurred repaid, by a general contribution from 
 all those benefitted by either the one or the other, in pro- 
 portion to the value of the property, which those sacri- 
 fices and expenses have been instrumental in saving. 
 Hence, a General Average Contribution may be defined 
 to be a contribution by all parties in a sea-adventure, to 
 make good the loss which has been sustained by one or 
 more of their co-adventurers, from sacrifices made or ex- 
 penses incurred for the general benefit. Arnould. 
 
 A contribution according to value made by the associ- 
 ated interests which form a marine adventure. These 
 are, the ship itself, the merchandise she carries, and the 
 freight she earns. The persons to whom these several 
 interests belong are sometimes called the co-adventu- 
 rers. The object of this contribution is the repayment of 
 some expense incurred, or the restitution of something 
 
GENERAL PRINCIPLES. 17 
 
 valuable sacrificed, for the benefit of the whole. Hop- 
 kins. 
 
 There must be a "common interest" between all pro- 
 perty affected by a General Average. Bail//. 
 
 France. — In general, comprises damages and expen- 
 ses voluntarily incurred for the common welfare and 
 safety of ship and cargo, from the loading and depart- 
 ure to the return and discharge of the same. 
 
 Rogron. 400. 
 
 GrERMANY. — All damage done to ship or cargo, or both, 
 by the master or by his orders, with intent to save both 
 from a common danger, as also the consequent damage 
 resulting therefrom, and the expenses incurred for the 
 same purpose, are General Average. German General 
 Mercantile Law. 
 
 Voluntary and deliberate act. 
 
 United States. — A loss, though it be extraordinary 
 and not a part of the expense and inconvenience of na- 
 vigating the vessel, if it take place without the agency 
 of the master, crew or other persons acting for the gene- 
 ral benefit, is not a subject of general contribution. 
 
 England. — The leading characteristic of a General 
 Average loss is, that it is the intentional act of man, not 
 the inevitable result of the peril insured against. Ar- 
 nould. 882. 
 
 The sacrifice must be made deliberately, voluntarily, 
 and with the object of saving or protecting the remain- 
 der of the property at risk. Hopkins. 26. 
 2 
 
18 GENERAL AVERAGE. 
 
 France. The act must be voluntary and deliberate ; 
 notwithstanding in some cases of an immediate danger, 
 the General Average is accepted, though the loss or sac- 
 rifice be made without deliberation. Practice of Bor- 
 deaux. 
 
 Amount of danger requisite to justify a General Aver- 
 age act. 
 
 United States. — In order to constitute a case of Gen- 
 eral Average, a common danger must occur ; a danger 
 in which ship, cargo and crew all participate ; a danger 
 imminent and apparently inevitable, except by volunta- 
 rily incurring the loss of a portion of the whole to save 
 the remainder. Barnard v Adams. 10 Howard's (U. 
 S. Supreme Ct. Reps.) 270. 303. 
 
 England. — There must be a moral certainty of total 
 loss when the act is performed. Baily. 
 
 The sacrifice must be made under the urgent pressure 
 of some real and immediately impending danger, and 
 must be resorted to as the sole means of escaping des- 
 truction. Arnould. 
 
 France. — The same as England. 
 
 Whether a successful result he necessary. 
 
 United States. — The attempt to avoid the imminent 
 common peril must be successful. Barnard v Adams. 
 10 Howard, 270. 
 
 If it do not save other property or interests, there is in 
 
GENERAL PRINCIPLES. 19 
 
 the first place, no sacrifice, as it may be presumed that 
 the property jettisoned would have been lost with the 
 rest ; and in the next place, if no one be benefitted by 
 the sacrifice, no one can be called on to contribute a por- 
 tion of what was saved for him, in order to make the 
 loss equal. 1 Parsons, 288, 318. 2d Phillips, 99. 
 
 To constitute a claim for General Average, it must 
 appear that the sacrifice was necessary and voluntary ; 
 it must be intended for the safety of all concerned, and 
 it must appear that thereby the property which is to con- 
 tribute, was rescued from the imminent peril then im- 
 pending. 
 
 In Scudder v Bradford, 14 Pickering, 13, the master 
 of a vessel which was dragging her anchors towards the 
 shore, cut away the masts to prevent her drifting, and 
 thereupon she brought up, but after an hour she drifted 
 again, and was wrecked. The cargo, which was saved, 
 was held not liable in General Average, inasmuch as the 
 sacrifice of the masts did not rescue it from the particu- 
 lar peril then impending. See also, Williams v Suffolk 
 Ins. Co. 3 Sumner, 510. 
 
 Witteridge v Norris, 6 Mass., 125 ; Nicker son v Ty- 
 son, 8 Mass., 467 ; Maggrath v Church, 1 Caines, 196 ; 
 Sansin v Ball, 4 Dallas, 459 ; Sims v Gurney, 4 Bin- 
 ney, 524. There is no contribution, if, at the time of 
 sacrificing the cargo, there were no possibility of saving 
 it. Crockett v Bodge, 12 Maine, 190. 
 
 England. — Where the ship perishes by the peril which 
 the sacrifice was intended to avert, the goods saved 
 should, it seems, contribute for those sacrificed, only in 
 case the whole or greater part of the cargo be preserved. 
 
20 GENERAL AVERAGE. 
 
 But if immediate safety be procured by the sacrifice, and 
 the ship afterwards perish by another peril, the goods 
 saved from the wreck, however damaged, must contri- 
 bute for those sacrificed, at the value or price they would 
 have produced in a damaged condition as compared with 
 those saved. Arnould, 924. 
 
 An act may be a General Average act when it did not 
 and really could not have a beneficial effect. Baily. 
 
 Whether it be necessary to consult with the crew previous 
 to the commission of an act of General Average. 
 
 United States. — A consultation between the master, 
 officers and crew, though in some cases proper to precede 
 a voluntary sacrifice, is not essential to make a case of 
 General Average. Columbian Ins. Co. v Ashby, 13 
 Curtis, Sup. Ct. Reps. 176. 
 
 England. — By the law of England, the master is not 
 bound to consult with his officers or crew previously to 
 the sacrifice, although this course, when practicable, is 
 often prudent. Maude v Polloch, p. 192. HopJeins, 8. 
 
 France. — Captain to consult officers, and owners of 
 cargo, if on board ; in case of difference of opinion, that 
 of officers to prevail. Rogron, 410 ; Code de Commerce 
 livre 2, tit. 12, art. 410. 
 
JETTISOI^ AND ITS OONSEQUEIsrCES. 
 
 Jettison, and expenses incurred to float a stranded ship. 
 
 United States. — Damage to vessel or cargo, caused by 
 accidental stranding, is Particular Average. But the 
 expenses incurred in refloating a stranded ship with the 
 cargo on board, or by landing the ca,rgo, using steam- 
 tugs or resorting to other measures begun and carried on 
 continuously by the master as one enterprise, with a 
 view as well to the preservation of tlie cargo as to the 
 refloating of the ship and the prosecution of the voyage, 
 and the ship is refloated, and she resumes her cargo or 
 prosecutes the voyage, are, universally, considered to be 
 General Average, including the expenses incurred subse- 
 quently to the landing of the cargo, as well as those 
 antecedently incurred, and including also the damage 
 caused to the ship or cargo by the means employed to 
 refloat the vessel ; and these expenses are, in such cases, 
 General Average, without regard to the question, 
 whether the vessel be voluntarily or accidentally 
 stranded. 
 
 But if, after the cargo is landed and put in a place of 
 safety, the vessel do not float, and a new and distinct 
 enterprise be entered upon and carried on by the-mastcr 
 for the purpose of refloating the ship, the expenses of 
 such new enterprise were not, until the recent decision 
 of the United States Supreme Court, in the case of ship 
 '■'■ MacheV,'' McAndrews v. Thatcher, decided in Decem- 
 ber Term, 1865, regarded as General Average. In this 
 
22 GENEKAL AVERAGE. 
 
 case Mr. Justice Clijford held that the expense of such 
 new enterprise, carried on by the master with a view to 
 the further prosecution of the voyage, would be General 
 Average, provided the cargo, though landed in safety, 
 remain under the control of the master, and be liable to 
 be taken on board again by him for"T;he purpose of pros- 
 ecuting the voyage. But if, the cargo being landed and 
 in safety, the master abandon the enterprise of re- 
 floating the ship, or if the cargo or all but mere rem- 
 nants of it be conveyed in lighters to its port of 
 destination, and so is not to be taken on board again for 
 the purpose of prosecuting the voyage, the community 
 of interest is dissolved by the abandonment of the enter- 
 prise in the one case, or by the landing of the cargo in 
 the other, at the port of destination, and the expenses 
 subsequently incurred are not General Average. The 
 community of interest is supposed to remain until the 
 voyage is abandoned or the cargo landed in its port of 
 destination, or until in some other way there is a com- 
 plete separation of the cargo from the ship, not again to 
 be reunited ; and whatever is done for the protection of 
 the common interest should be done at the common 
 expense. If, however, part of the cargo be transhipped 
 by the master to the port of destination, in the process 
 of lightering the ship with a view to the refloating of 
 the vessel, and the vessel be refloated by one continuous 
 series of operations, carried on by the master, and she 
 finish her voyage with the rest of the cargo on board, 
 the part so transhipped will be liable to contribute to 
 the general expenses of refloating the vessel, as well 
 those incurred subsequently to such transhipment as 
 
JETTISON. 23 
 
 those antecedently incurred. 
 
 England. — Mr. Hopkins thus states the English 
 rule : — " There are some charges incurred after a ship is 
 stranded, or is in such a situation as to render it certain 
 that she will never complete the voyage she is on, and 
 so is to all purposes a wreck, which still partake of the 
 nature of General Average, although, generally speaking, 
 the wrecking or stranding of a vessel hreaks up the ad- 
 venture and so dissociates the interests, yet the ex- 
 penses alluded to do not apply separately to the several 
 interests, but are to he divided over them, ad valorem. 
 Thus salvage services ; attempts, though ineffectual, to 
 get the ship off; watching; the general attendance of 
 Lloyd's Agent and other agents ; documentation and 
 other expenses intended for the whole property, without 
 exception, are to be thus divided. It is not that there 
 is any longer a bond of union among the several inter- 
 ests — for this is now destroyed — but because this is the 
 best manner of applying the charges to the various 
 interests. And there are charges which do not seem 
 to apply, at first sight, to more than one of the inter- 
 ests, perhaps, which on further thought will be found 
 to have an applicability to the whole of them collect- 
 ively. The discharge of cargo from a wreck lying on 
 the rocks may seem to be a step taken with reference 
 to the individual benefit and safety of the cargo only ; 
 and one towards which the ship could not be called 
 upon to contribute. But if it be impossible to get the 
 wreck away from the rocks whilst encumbered by tho 
 cargo remaining in her, or if the weight of the cargo 
 render it probable that she will be broken in pieces 
 
24 GENERAL AVERAGE. 
 
 where she lies, it is plain that the ship does really parti- 
 cipate in the benefit of measures which were primarily- 
 undertaken for the salvagte of the cargo ■ 
 
 So again, the cutting away a ship's masts when she 
 is a hopeless wreck, may he very advantageous to the 
 cargo, in preventing the rolling of the vessel on the 
 rocks, which would hasten her utter destruction and the 
 loss of everything on hoard." Hopldns, 48. 
 
 In the United States the sacrifice of ship's masts and 
 materials constitutes a claim for General Average, at 
 the estimated value the material would have pro- 
 duced at the scene of wreck as compared with other 
 materials there sold. It must, however, be clearly 
 shown that the loss arose from the sacrifice and that 
 there was every probability of saving the sacrificed parts 
 with the other materials. 
 
 France. — The expenses incurred for the common 
 benefit in refloating a loaded stranded ship, whether 
 stranded fortuitously or voluntarily, including damage 
 to the ship, rigging, boats, or the damage to, or loss of, 
 goods, occasioned by the efforts made to refloat the ship, 
 are General Average. If the measures taken to refloat 
 the ship fail, and the ship be lost, all the Averages will be 
 Particular, and the expenses of saving will be arranged 
 in, two classes — the one Particular to the ship, the other 
 to the cargo, accordingly as they have in the end been 
 respectively benefitted. If the stranding be voluntary, 
 then all the damage to ship or cargo is General Aver- 
 age, provided, always, that the ship be refloated with 
 the cargo on board, or the ship resume the cargo and 
 proceed on the voyage or to a port of refuge. Traite 
 
JETTISON. 25 
 
 sur les Assurances Maritimes, ty M. Cauvet. 
 
 Germany. — If the ship he stranded without' the 
 stranding being purposely doner for the preservation of 
 ship and cargo, then the damages caused hy such 
 stranding are not General Average, but the expenses 
 occasioned by the getting oif, and the damages pur- 
 posely inflicted on ship and cargo with this object, are 
 General Average. 
 
 Sweden. — If the vessel through disaster, get 
 aground, then no other damage shall be compensated 
 for by General Average than the cost of getting the 
 vessel afloat, or bringing it and the goods into safety. 
 Swedish Maritime Code of 1865. 
 
 Jettison to prevent a vessel's foundering. 
 Universally General Average. 
 
 Jettison to enable a vessel to escape an enemy. 
 
 United States. — If a cable be cut, and an anchor lost, 
 or goods jettisoned to escape from an enemy, this is as 
 certainly an Average loss as if done to escape wreck. 
 1 Parsons, 306, Stevens Sf Beneche, Phillips Ed., 154. 
 
 England. — General Average. 
 
 Fkasce. — General Average. Emerigon, in his trea- 
 tise on Insurance, ch. XII., s xli., § 5 Meredith's Ed. 
 480, gives a very good illustration of this. The Master 
 of a French vessel, having been pursued by two frigates, 
 
26 GENERAL AVJERAGE. 
 
 and his flight being intercepted by two others ahead, 
 as soon as it was dark, lowered his boat into the sea, 
 with a mast and sail, and a lantern at the mast-head, 
 and then changed his course, and sailed all night with- 
 out a light, and in this way escaped. The value of the 
 boat was made good by a General Average contribution. 
 
 Jettison of goods which endanger the vessel and the 
 property in her, {cargo heated ^c). 
 
 Not General Average in the United States, nor, we 
 believe, in any country. 
 
 Jettison rendered necessary from the ship's being too 
 heavily laden to encounter the ordinary perils of the 
 sea. 
 
 United States. — The loss, in this case, arises from the 
 wrongful act of the master, and does not constitute a 
 case of General Average. 
 
 Where the unseaworthiness of the vessel, at the time of 
 sailing on the voyage caused, or contributed to pro- 
 duce the necessity for, the jettison. 
 
 The loss is not within the exception of the perils of 
 the seas, and the vessel is liable for the whole value of 
 the goods thrown overboard. 19 Howard, 162, 166; 
 
JETTISON. 27 
 
 17 Howard, 100, 110 ; 13 Maine, 357. 
 
 Whether the property in peril and rescued, must be 
 saved by the sacrifice. 
 
 It is perfectly clear, as we have previously stated, that 
 property which is not saved, hut wholly lost, is in no 
 way benefitted by the sacrifice, and, therefore, in no 
 way under the implied obligation of compensating for 
 it. But the question, if there be a sacrifice for other 
 property, and that other property be saved, must it also 
 appear that it was saved by the sacrifice, or, in other 
 words, would have been lost without it, in order to enti- 
 tle the owner of the property sacrificed, to Contribution, 
 is more difficult of solution. 
 
 When judges, or text- writers, say that the impending 
 peril for which a sacrifice was made, must be averted 
 by the sacrifice in order to found a claim for Contribu- 
 tion we think they go too far. The rule should certainly 
 be regarded with some qualifications. 
 
 In Scudder v. Bradford, 14 Pickering's Reps. 13. A 
 vessel was dragging her anchors and drifting towards 
 the shore. Her masts were cut away, and she was 
 thereby brought up. An hour afterwards she went on 
 shore. It was held that the masts were not to be con- 
 tributed for because the property was not rescued from 
 the peril by their destruction. 
 
 Pardessus presents as a rule of the French law, this 
 proposition : — " That if once the damage for which the 
 sacrifice had been made be avoided — for example, that 
 
28 GENERAL AVERAGE. 
 
 the tempest be ended, or the ship have escaped from the 
 enemy, even if it be for a slight interval, — contribution 
 is due. Art. 743. 
 
 Pothier is of opinion, that, if a part of the prop- 
 erty be sacrificed for the common benefit, whatever is 
 eventually saved must contribute for the loss, whether 
 the impending danger be avoided or not. Ins. n. 128, 
 414. 
 
 In Lee v. Grinnell, 5 Duer, 400, 411. It was held : 
 — " There must be the intent to sacrifice the thing 
 designated. The sacrifice must be accomplished. Some 
 definite advantage must have sprung from it. A final 
 preservation must ensue, not indeed by a logical neces 
 sity directly and solely from the sacrifice, but as 
 reasonably contributed to by it, or as consistent with it, 
 as with any hypothesis the circumstances will allow," 
 and Mr. Justice Hoffman further says : — " I consider 
 the true rule to be, that the achievement of the object 
 designed,, for even a very short period of time, will be 
 sufficient to justify Contribution, notwithstanding a 
 subsequent loss, provided the ultimate loss result from 
 a new peril." 
 
 In Barnard v. Adams, 10 Howard, 373. It was 
 held by Mr. Justice Grier, that the attempt to avoid 
 the imminent commori peril must be successful." 
 
 The doctrine which seems to predominate in the more 
 recent jurisprudence, is, that the impending danger 
 must be averted, in whole or in part, by the sacrifice. 
 
 If this be regarded as the established rule, we can- 
 not see that it is founded in equity or policy. 
 
 In Stevens Sf Beneche, (by Phillips), pp. 100, 105, 
 
JETTISON. 29 
 
 107, it is strongly contended that this rule is contrary 
 to the principles and policy of General Average, on the 
 ground that no one has the right to attempt the preser- 
 vation of the whole at the risk of ah individual, and 
 this reasoning seems to us conclusive. 
 
 The rule, that whenever an extraordinary peril is 
 impending over the whole adventure, and the master 
 who is the common agent of all concerned, acting in 
 good faith and with common discretion, selects a par- 
 ticular part of the property at risk and destroys it, or 
 exposes it to some special injury or risk, with a view 
 thereby to avert or mitigate the common danger, the 
 owner is entitled to be compensated by an Average Con- 
 tribution, is founded in the highest equity, and good 
 policy enjoins its liberal administration in favor of the 
 party whose property is voluntarily sacrificed. 
 
 In c-T^e of jettison to relieve a ship laboring under 
 stress of weather, or to enable her to escape from a 
 pursuing enemy, the claim for Contribution could not 
 be defeated by proof that the storm had suddenly 
 ceased or that the enemy's ship then far behind, was 
 destroyed by an accidental explosion, at the instant of 
 jettison. It would seem to be enough that a real dan- 
 ger exists, that it appears to threaten the whole adven- 
 ture, and that the mind of the agent acts upon the 
 question, judges the sacrifice to be conducive to the 
 general interest, and makes it accordingly. 
 
 Contribution, as we have said, is due from the owner 
 of the ship or cargo only upon its coming to its use, 
 consequently it is quite true to say, the common concern, 
 or more properly speaking, some part of it must be sav- 
 
30 GENERAL AVEEAGE. 
 
 ed, but this pre-requisite to a case of Average Contribu- 
 tion has no special reference to the saving the concern 
 from the calamity which was impending at the time of 
 the sacrifice. 
 
 The rule of Contribution, generally adopted by expe- 
 rienced adjusters in the settlement of General Average 
 cases in the United States, appears to be, that compen- 
 sation is due to the owner in General Average whenever 
 an injury of any kind results to part of the property en- 
 gaged in a maritime adventure from an act out of the 
 ordinary course of navigation, intentionally done in con- 
 templation of injury to a part, but with intent thereby to 
 preserve as much as possible from the evil consequences 
 of an extraordinary peril existing at the time, and appa- 
 rently threatening damage to the whole adventure. 
 
 It is necessary that the sacrifice be made by one hav- 
 ing authority to act as agent for all concerned, as for in- 
 stance the master or some one rightfully acting in his 
 stead ; it is necessary that the thing thus devoted to the 
 common service be injured by the act of devoting it, but 
 it is not necessary that such act should impair its pros- 
 pects of safety from the impending calamity; it is enough 
 that its prospects of safety be altered by an act not ne- 
 cessary to the navigation of the ship under ordinary cir- 
 cumstances. 
 
 It is necessary that something be ultimately saved 
 from the adventure or voyage, and come to the hands or 
 use of the owner, but so far from its being necessary that 
 the saving should be effected by means of the sacrifice, 
 or that the peril in view should be thereby, or at all 
 
JETTISON. 31 
 
 events, averted, it does not appear to he even necessary 
 to show that the supposed peril existed in point of fact. 
 However manifest it may be in the event, that the sacri- 
 fice was necessary, and that independently of the sacri- 
 fice, the apprehended evil could not have occurred, the 
 party should be entitled to compensation, if, in the exer- 
 cise of a sound reasonable discretion, the master vol- 
 untarily subject his property to injury for the purpose of 
 averting or diminishing an extraordinary peril which 
 appeared to threaten the safety of the whole adventure. 
 
 The law of Average Contribution leaves each party to 
 bear the loss which results from ordinary navigation, or 
 the direct action of extraordinary perils, but makes all 
 concerned co-operators to the extent of their several inter- 
 ests, in the common fund in respect to losses arising from 
 the voluntary devotion of any part by the common agent 
 of the parties, to an unusual service, for the benefit of 
 the whole, in averting or beneficially modifying, what, 
 to such agent,.inthe exercise of a sound reasonable dis- 
 cretion, appears to be a common danger. 
 
 There really seems to be no substantial basis for the 
 . doctrine, that, in order to found a claim for Contribution, 
 the evil must be averted at all. The sacrifice gives a 
 claim for Contribution, not strictly against the owner, 
 but against the property intended to be benefitted, and if 
 that property survive the adventure, and come to the 
 use of the owner, in whole or in part, whatever its con- 
 dition, whether sound or partially damaged by the ship- 
 wreck vainly sought to be avoided, or by any other 
 means, it should contribute. 
 
32 GENERAL AVERAGE. 
 
 Jettison of JDeck Cargo. 
 
 The general rule of the maritime law in all commer- 
 cial countries is, that goods carried on the deck of the 
 vessel and thrown overboard for the common safety, are 
 not entitled to he contributed for in General Average, 
 though they contribute to the jettison of other goods. — 
 The exception to the rule in England and the United 
 States is, that when the goods carried on deck, are car- 
 ried there in conformity with a custom of the trade in 
 which the vessel is engaged, and are stowed in the cus- 
 tomary way, they are to be contributed for. 
 
 In the United States, propellers navigating the lakes, 
 the Hudson river. Long Island Sound, &c. carry much of 
 their cargoes on deck. The steamers plying between the 
 lake ports, between New York and Albany, New York 
 and the Eastern ports, &c., transport their freight on 
 deck. On the Ohio and Mississippi rivers, the practice 
 is well known; cattle, swine, sheep, &c., are carried in 
 the internal and coastwise trade on deck, and general 
 shippers load their goods on such vessels with full know- 
 ledge of such custom. 
 
 In the recent case of Harris and others v Moody ^ 
 Telfair, (Court of Appeals, State of New York, March, 
 1864) 3 N. Y. Reps. 266, it was held that goods carried 
 on deck according to the custom of the trade, by steam- 
 boats navigating Long Island Sound, and stowed in the 
 usual way, are liable to Contribution by way of General 
 Average for loss occasioned by a jettison of other goods 
 necessarily thrown overboard under sti-ess of weather and 
 while subjected to the perils of the sea. Hogehoom J. 
 
JETTISON. 83 
 
 held, "The general rule undouhtedly is, that goods 
 shipped on deck contribute, if saved, but if lost by the j et- 
 tison, are not entitled to the benefit of General Average. 
 But the rule has its qualifications. — 1st, It is strictly ap- 
 plicable only to those vessels which are expected to en- 
 counter the extraordinary perils of the sea, and not to 
 those which navigate smoother waters, and are compara- 
 tively safe from extraordinary exposure. 2nd, The cus- 
 tom and usage prevailing on the particular route navi- 
 gated, as to the place on the vessel where the cargo is 
 stowed or located, has a material bearing upon the right 
 of the jettisoned cargo to Contribution for loss. If by 
 such usage the cargo be stowed on the main deck, and 
 not under cover, then it becomes not only liable to Con- 
 tribution if saved, but entitled to Contribution if lost." — 
 2 Smith's Leading Cases, 531 ; Gould v Oliver, 4 Bing- 
 ham, N. C. 134 ; Brown v Cornwall, 1 Root (Cow) 60 ; 
 Barlour v Bruce, 3 Conn. R. 9 ; Barhour v Dodge, 5 
 Greenleaf (Maine), 286 ; 22 Pick. 116. 
 
 England. — There exists in Liverpool a custom among 
 the ship-owners, shippers, merchants and underwriters 
 in the trade of carrying timber from British North A- 
 merica to England, which has been recognised by the 
 courts as legal, that the loss occasioned by the jettison of 
 timber loaded on deck, is not contributed for by any Ge- 
 neral Average among all the owners of the ship, freight 
 and cargo on board, but the loss is apportioned over the 
 ship, the freight of cargo both on and under deck, both 
 jettisoned and not jettisoned, according to their respect- 
 ive values, by a statement which is called General Con- 
 tribution, but no owner of any of the interests is, by the 
 3 
 
34 GENEBAL AVERAGE. 
 
 custom, liable for the proportion falling on his interest, 
 except those who are parties to the contract for the car- 
 riage on deck ; and no underwriter on the ship is liable, 
 under the ordinary form of policy, to pay or contribute 
 towards the amount of the general Contribution payable 
 or borne by the ship-owners on account of the jettison of 
 any timber stowed upon deck. Miller v Letherington, 
 Ex. Ch. 1863. 
 
 Mr. Arnould, p. 890, says, " Goods carried on deck, as 
 they tend to embarrass the navigation, are not contrib- 
 uted for, if jettisoned, unless they are so carried accord- 
 ing to the common usage and course of trade on the voy- 
 age for which they are shipped. On proof, however, of 
 such usage, they are contributed for if jettisoned, like 
 other goods ; and no notice to the underwriters of the 
 existence of such custom is necessary in order to make 
 them liable, they being bound to know the usage of the 
 particular trade. ,* Thus, carboys of vitriol, timber on the 
 voyage between London and Quebec, and pigs between 
 London and Waterford, have been contributed for, after 
 jettison, though carried on deck, an usage of trade being 
 proved, in each case, so to carry them." He supports 
 his statement by reference to the great French writers 
 on Insurance, Emerigon and Valin, and by the English 
 decisions in the cases of Ross v Thwaites, Da Costa v 
 Edmonds, Gould v Oliver and Milward v Hibhert. 
 
 In practice, however, the English underwriters do not 
 admit the General Contribution as binding on them, un- 
 less their consent to risk of deck cargo has been especi- 
 ally obtained previously. 
 
 The Feench and Belgian codes authorize the master, 
 
JETTISON. 35 
 
 in short voyages along the coast, and as far as the south- 
 ern and eastern coasts of England, to carry cargo on deck, 
 and, if jettisoned, it is allowed for in General Average. 
 The merchants and underwriters in hoth countries com- 
 plain against the law, that it does not define the limits 
 of these short voyages, but they are left to be ascertained 
 by ancient and vague ordinances. They also allege 
 that, even in these short voyages, the custom of carrying 
 goods on deck is hazardous and injurious to the interests 
 of commerce. Frignet, 351. Rogron Art. 421. 
 
 Holland. — The master is held responsible for every 
 damage which may happen to goods carried on deck 
 without the consent, in writing, of the shipper; but when 
 they are so carried without such consent, and are damag- 
 ed or jettisoned, the damage or loss is made good in Gren- 
 eral Average, and the contributors have their remedy 
 over against the captain and the ship. Dutch Commer- 
 cial Code, §§ 348-733. 
 
 The new German code allows, in General Average, a 
 jettison of deck cargo in coasting voyages. § 710. 
 
 Freight of Jettisoned Goods. 
 
 United States. — In case of jettison of goods, as the 
 ship-owner cannot entitle himself to the freight of them, 
 as he is prevented from delivering them at the port of 
 destination, this freight is included in the amount of sa- 
 crifice, and must be contributed for. The Nathaniel 
 Hooper, 3 Sumner's R. 542. 
 
 The freight contributed for in General Average, contri- 
 
36 GENERAL AVERAGE. 
 
 butes on the whole amount, and the deduction of one-half 
 or one-third to cover expense of earning freight, is taken 
 from the freight actually earned only. 
 
 England. — The owner's freight being, so to speak, con- 
 tained in the goods, shares the fate of the merchandise, 
 and is jettisoned with the goods thrown overboard. The 
 lost freight is, therefore, also recoverable by General Av- 
 erage Contribution. Hopkins, 10. 
 
 France. — The practice is the same as in England. 
 
 Jettison of ship^s stores. 
 
 '4 
 
 The practice in the United States, England and 
 France is, that of the ship's stores cast into the sea, only 
 those are allowed to enter into the General Average, 
 which were in secure and proper situations previously. 
 
 Water casks on decTt. 
 
 United States. — If jettisoned from the place where 
 they are usually and properly carried, they are allowed 
 for in General Average. 
 
 In England and France, they are not contributed for. 
 
 Jettison of chains on dech. 
 
 United States. — If jettisoned from the place where 
 they are usually carried, they are contributed for. 
 
JKTTISON. 37 
 
 England and France. — Not General Average, except 
 when in the vicinity of land. 
 
 Ship's stores in a state of wreck. 
 
 Considered part of the accident which reduces them to 
 a state of wreck. 
 
 Damage or loss to cargo, hy being got on dech in order 
 that it may he jettisoned, or to get at other goods which 
 the crew intended to jettison. 
 
 United States, England and Prance.— General Ave- 
 rage. 
 
 Damage to cargo, hy water getting down the hatches 
 whilst jettison is tahing place. 
 
 The damage done to goods by water, which unavoida- 
 bly goes down a ship's hatches opened, or other opening 
 made for the purpose of making a jettison, is contributed 
 for in General Average, in the United States, England, 
 France, Belgium Holland, Denmark and by the new 
 German code. {French code, § 400. German code, 
 § 400. Holland code, § 699.) Such damage is consid- 
 ered as an accessory of the jettison, or the immediate di- 
 rect consequence of making the jettison. 13 Peters, 343. 
 Baily, 171. 
 
38 GENERAL AVERAGE. 
 
 Mr. Hopkins (an English writer) says " It sometimes 
 happens that in opening the hatches to effect a jettison, 
 an occasion which is necessarily most frequent in bad 
 weather, water enters the hold by the hatchway, and in- 
 jures the goods stowed in the neighborhood. On propos- 
 ing this case there scarcely seems room for a doubt that 
 such damage should be claimed in General Average, simi- 
 larly to jettison, not only as being quite analogous to that, 
 but actually involved in the act of j ettison itself Yet the 
 question as to how such damage should be disposed of is 
 by no means a settled one. I suppose few people would 
 be found to dispute the principle which makes such 
 losses General Average, except upon some fine drawn 
 argument about the extent and intention, the mediate 
 and immediate consequences of voluntary acts. Such 
 reasonings appear too metaphysical to apply to mercan- 
 tile questions, which should be answered in a simpler 
 manner. I would only ask the advocates of such fine 
 distinctions whether we can curb or prevent effects de- 
 pending on such acts from extending far beyond the 
 limits we at first intended. Take the analogous case of 
 water poured on a burning house to extinguish the 
 flames, which water destroys the books in the libra- 
 ry ; will any one urge in favor of an insurance office not 
 paying, that damage by water wa,s onhj incidental and 
 unintentional, and, therefore, removed from the rule 
 which makes the insurance company liable for fire? I 
 am sure that no such argument would be maintained for 
 a moment. 
 
 There is, however, more show of reason in an objec- 
 
JETTISON. 39 
 
 tion being made to this kind of damage constituting 
 General Average, on the ground of expediency. This is 
 the true root of the objection, which, when honestly- 
 avowed, is entitled to its full weight. In principle it 
 does not seem to be of much importance whether cargo 
 be thrown into the water or water be thrown into the 
 cargo, provided the act were required for the salvation of 
 the joint interests, and undertaken for that end. But 
 if it be urged that the admission of claims of this kind is 
 opening a dangerous door to fraud and leading the way 
 to extreme uncertainty ; if it can be shown that it is ■ 
 next to impossible to indicate what damage did really 
 accrue in consequence of a voluntary act, and how much 
 of it arose from leakage and other involuntary causes ; 
 if it be told us as a matter of fact, that when such a prin- 
 ciple was acted on very numerous claims were made, es- 
 pecially in certain trades, which are known to have been 
 fraudulent, — we should be right in saying, that though 
 we adhere to our rule as a matter of principle, yet it may 
 be better to depart from it in some cases on the ground of 
 convenience and for the avoidance of fraud and uncer- 
 tainty, and to draw some arbitrary lines, — only admit- 
 ting frankly that they are arbitrary, and are drawn on 
 account of the reasons stated. But I would never resort 
 to this arbitrary line where a case is clear, definite and 
 free from suspicion. In the instance under discussion, 
 I have always been of opinion that this description of 
 danger is most properly General Average, and should 
 not be rejected from recovery as such except where un- 
 
40 GENERAL AVERAGE. 
 
 certainty prevails as to its cause and limits." HopMns, 
 p. 14. 
 
 Damage done by breakage and chafing, or otherwise, 
 from derangement of stowage consequent upon a 
 jettison. 
 
 In the United States, France and Holland, this dam- 
 age is in practice generally allowed in General Average. 
 In Lee v. Grinnell, 5 Duer, 429, 310, damage to the 
 knees and timbers of the vessel, caused by the swelling 
 of grain in the lower hold, which was caused by letting 
 water into the vessel by scuttling, was allowed in 
 General Average. 
 
 The English and Belgio Average adjusters reject from 
 Contribution damage caused by breakage and chafing 
 resulting from a derangement of the stowage of the 
 cargo, consequent on making a jettison. The damage, 
 they argue, is caused by the unintended accidental 
 derangement of the stowage, and not by making the 
 jettison. 
 
 The International Congress held at York, in England, 
 in 1864, recommended that this damage should be made 
 good in General Average. Report of Hon. Wm 
 Marvin, 20. 
 
 Damage or loss to cargo, by water getting down in 
 consequence of a mast being cut away. 
 United States. — General Average. In Maggrath v. 
 
JETTISON. 41 
 
 Church, 1 Caines, 196, the vessel loaded with corn, 
 encountered severe weather, and a mast was cut away 
 for the general preservation. In cutting it away, it 
 was splintered, and in consequence thereof, water en- 
 tered the hold, and damaged the corn. Kent J., said : 
 — " The corn heing damaged by the cutting away of 
 the mast, is to be considered, equally with the mast, a 
 sacrifice for the common benefit — a price of safety to 
 the rest ; and it is founded on the clearest equity, that 
 all the property and interest saved ought to contribute 
 their due proportion." See also, S alius v. Ocean Ins. 
 Co., 14 Johns, 138. 
 
 In France the rule is the same as in the United 
 States, but in England, it is at present a disputed 
 question. 
 
 Damage or loss to cargo, by 2>utting it into the water, 
 &r into lighters alongside a ship which is aground in 
 order to get the ship off. 
 
 United States. — Where goods are put into boats out 
 of the usual course, for the purpose of floating the ship 
 when she is aground, or to lighten her that she may 
 pass over a shoal or bar, or otherwise for the relief of 
 the ship and cargo, are lost, they are, in practice, con- 
 tributed for. 
 
 A distinction is made between lightering the vessel 
 in extraordinary circumstances, as in putting into a 
 port of necessity, and in the ordinary course of the voy- 
 age, as in putting into the port of destination. Where 
 
42 GENERAL AVERAGE. 
 
 it is usual for vessels of the same burden, as the one in 
 question, to discharge a part of the cargo on the out- 
 side of the bar of the port of destination, no contribu- 
 tion is to be made, though the goods should be damaged 
 in the lighters. 2d Phillips, 78. 
 
 England. — Where, in the course of the voyage, in 
 order to save a ship from foundering, to float her after 
 stranding, or to enable her to make a port of distress, 
 part of the cargo is put into boats and lighters, and lost 
 before reaching the shore, such loss gives a claim to 
 General Average Contribution; for it is regarded as 
 though it were a jettison {proinde si jactura facta esset), 
 being an intentional exposure of the goods to imminent 
 and extraordinary risk, with a view to the ship's safety. 
 Arnould, 891. HopJiins, 14. Marshall on Ins., 538. 
 
 France. — Disputed. M. Cauvet, in his Traite sur 
 les Assurances Maritimes, however, says, when, in going 
 into, or coming out of a port, harbor or river in the 
 ordinary course of the voyage, it is necessary to lighten 
 the ship, if any of the goods put on board the lighters 
 be lost or damaged, the loss or damage is General 
 Average. 
 
 Damage done to the ship in order to effect a jettison. 
 
 It is universally admitted, that all the damage inci- 
 dentally done to the ship in making a jettison, consti- 
 tutes a part of the amount to be made good in General 
 Average. 
 
DAMAGE TO SHIP. 43 
 
 Application of something belonging to the ship to a use 
 different from that to which it is applied in the ordi- 
 nary course of navigation. 
 
 If spars be cut up to construct a temporary rudder, 
 or cordage te used to fasten it, or a caMe or rope and 
 spar be put out to assist in steering the ship in case of 
 the loss of the rudder, or a part of the sails and cordage 
 be used at sea in stopping a leak, or a cable be cut 
 from the anchor to be used as a hawser, the loss and 
 damage are universally subjects of General Average 
 Contribution. 
 
 DAMAGE TO SHIP. 
 
 VOLUNTARY SACRIFICE OF SHIp's MATERIALS OR OUTFIT. 
 
 Cutting away masts, sails Sfc, to righten a ship on her 
 beam-ends. 
 
 It not unfrequcntly happens that by a sudden squall, 
 or some similar cause, a ship under canvass, is thrown 
 on her beam-ends, with her yard-arms and part of her 
 sails in the water, and owing to the last circumstance, 
 or from the shifting over of the cargo, she is prevented 
 from rising upright again. To relieve her from this 
 critical position, it becomes necessary to cut away the 
 
44 GENERAL AVERAGE. 
 
 weather rigging, the sails, or the masts themselves. 
 This is a loss which is universally made good in Gene- 
 ral Average. 
 
 Whether a loss of sails and spars by carrying a press 
 of sail to keep off a lee-shore, or escape an enemy, is 
 a subject for contribution. 
 
 United States. — In practice, they are not generally 
 allowed, for the reason that, although the carrying of a 
 press of sail is a voluntary act, yet it is done in the 
 usual course of navigation ; it is not a voluntary sacri- 
 fice of the thing lost. On account of the state of the 
 weather, or the situation of the vessel, the sails and 
 spars, though put only to their ordinary and accustomed 
 use, are more than usually exposed to damage. Any 
 loss, although it happen in consequence of what is thus 
 voluntarily done, and for the general safety, is therefore 
 considered as not coming strictly within the conditions 
 of a General Average. In Louisiana, Contrihution has 
 been allowed, {see ShiffY. Louisiana State Ins Co., 6 
 Martin, N. S., 629.) But in New York, Boston and 
 other large shipping ports, the practice is not to admit 
 the claim in General Average ; though as the amount 
 is often too small to admit of the loss heing recoverable 
 as a Particular Average, a very liberal construction has 
 occasionally been put upon meritorious cases, and by 
 consent of the underwriters and parties in interest the 
 loss has been adjusted as General Average. 
 
 England.— Mr. Hopkins, p. 34, states the practice 
 
DAMAGE TO SHIP. 45 
 
 thus : — " A sail or other parts of the ship may be sacri- 
 ficed without being cut away. A ship driving towards 
 the shore in a gale or squall may have had her sails 
 blown away by the violence of the weather, and it may 
 be quite plain that any sail hoisted must almost inevi- 
 tably meet the same fate ; yet it may be the ship's 
 only chance of escaping from that lee-shore, to set a sail 
 or a tarpaulin in the rigging as a last resource, to try 
 and wear her head round ; and the purpose is some- 
 times answered if the sail, &c., so exposed last a few 
 minutes or seconds only. This is an unusual service 
 of the ship's furniture, and must rank as a voluntary 
 sacrifice. 
 
 France. — ^When, in order to avoid capture or ship- 
 wreck, the master carries an extraordinary press of sail, 
 whereby the masts are sprung or broken, the damage is 
 General Average. M. Cauvet. The decisions of the 
 courts however, are contradictory. 
 
 Hambubg and Denmark. — They are contributed for in 
 General Average. In Belgium the practice is the same 
 as in the United States. The new German code de- 
 clares, — " that damage done to the ship, its appurte- 
 nances, and the cargo, by carrying a press of sail, even 
 when the press of sail was carried to avoid stranding or 
 capture, is not General, but Particular Average. § 709. 
 
 Sails blown away when let go to righten the ship. 
 
 That sails blown away are subjects of contribution, 
 when they are let go for the purpose of causing the 
 
46 GENERAL AVERAGE. 
 
 vessel when on her beam-ends, to right, is generally- 
 admitted. 2d Phillips, 1298. Stevens Sf Beneche, 185, 
 186. 
 
 Bulwarks cut away to relieve a vessel of water which 
 floods her decJts. 
 
 If the bulwarks or stanchions or bulkheads or decks 
 of the ship be cut away for the purpose of saving the 
 goods, this, in the United States, England and on the 
 Continent, is regarded as General Average. Nelson v. 
 Belmont, 5 Duer, 310. 
 
 Where the loss or damage is attributable to the usual 
 chances and accidents of the voyage, whether a subse- 
 quent sacrifice consequent upon such loss or damage, 
 constitute the whole a General Average — in other 
 words, whether masts cut away when in a state of 
 wreck, are contributed for. 
 
 United States. — By some adjusters, the value of the 
 wreck itself, as a wreck, is allowed in General Average, 
 but this is not the general practice — their value in this 
 condition would generally be nothing. 
 
 In Nickersony. Tyson, 8 Mass., 467. The masts, 
 spars, rigging and sails of a vessel at sea were carried 
 away by the violence of the weather, and after hanging 
 by the vessel's side for half an hour, were cut loose for 
 the preservation of the vessel and cargo. The owners 
 
DAMAGE TO SHIP. 47 
 
 were held not entitled to Contribution, unless, indeed, 
 for the loss incurred in separating the masts and rig- 
 ging from the hull, after they were carried overboard 
 by the violence of the weather. The Contribution could 
 be proportionate to the value of these articles, only 
 when thus hanging by the side of the vessel. 
 
 England. — Mr. Arnould states the rule as follows : 
 " If a mast be carried overboard by the wind, it is, of 
 course, only a Particular Average ; if, however, a mast or 
 spar be snapt or sprung by the wind, and left hanging 
 in the rigging, so that in order to save the ship and 
 cargo, it becomes necessary to cut away entirely both 
 the mast and rigging, and throw both overboard, the 
 damage caused by the act of so cutting them away is a 
 General Average loss, and is to be contributed for to the 
 extent of the value of the mast and rigging, as they lay 
 after the accident." 
 
 Mr. Hopkins says, in practice, they are not General 
 Average, on the ground that the original cause is the 
 accidental loss of the mast ; and the cutting away after- 
 wards is considered only the consummation of the 
 inchoate act. 
 
 France. — "If the wind," says Pardessus, § 738, 
 " crack a mast, and afterwards it become necessary 
 for the safety of the ship to complete the fracture, and 
 throw it, with the sails and cordage, into the sea, this 
 last measure would be General Average. Consequently 
 the amount of this loss should be determined according 
 to the value the mast and accessories had in its broken 
 condition, caused by the wind or par le cas fortuit, in 
 which broken condition, antecedent to the sacrifice, the 
 
48 GENERAL AVERAGE. 
 
 damage was Particular only. 
 
 M. Cauvet in his Traite sur les Assurances Mari- 
 times states the practice thus : " When a mast is acci- 
 dentally carried away hy the violence of the winds,- and 
 it is necessary, in order to work the ship, to disengage 
 the wreck from the ship by cutting the rigging which 
 cannot he saved in the gale, the estimated value of the 
 rigging and sails at the time and place of the sacrifice 
 is allowed in General Average.." See also, Rogron, 400. 
 
 In Belgium, in practice, one-third the value is con- 
 sidered as General Average, one third Particular and 
 one-third new for old. 
 
 In Holland the value of the wreck, as such, is con- 
 tributed for. 
 
 Damage to copper hy wreck of mast cut away before it 
 is finally released from the vessel. 
 
 United States. — When masts and spars which have 
 been cut away, in falling, injure the deck, destroy rails 
 and bulwarks, and do other damage, the repairs of such 
 damage belong to General Average. And if after the 
 mastage has fallen into the water, it strike against the 
 ship's sides and knock off or injure the metal sheath- 
 ing, this damage is, in practice, also allowed in Gene- 
 ral Average. 
 
 England.— It is held that the injury thus sustained 
 by the sides and sheathing does not form an item for 
 General Contribution, but falls on the ship alone. 
 
 Mr. Hopkins, p. 36, argues, "there can be little 
 
DAMAGE TO SHIP. 49 
 
 doubt that, as a maitter of principle, this practice is 
 erroneous ; for it seems illogical, in a progressive series 
 of consequences clearly dependent on, and traceable to, 
 one cause, to classify a certain number of the links of 
 the chain in the category, and to make a new rule for 
 the succeeding link. I have listened to the arguments 
 in favor of this distinction, and they have always ap- 
 peared to me unconvincing enough. In fact, it is one 
 of those subjects where argument is misplaced ; for it is 
 expediency and not principle which draws the arbitrary 
 line of demarcation. It may be advisable to stop short 
 in the middle of a train of consequences, when difficul- 
 ties might arise in following them out to their extreme 
 limits — but if so, it ought to be done simply as a matter 
 of convenience or custom, and should not be attempted 
 to be defended on other grounds." 
 
 In France the injury is not contributed for. 
 
 A spar or sail cut away to save a mast. 
 
 In the United States, it is contributed for in General 
 Average, if the cutting away be the means of saving 
 the mast. 
 
 In England it is not allowed: 
 
 Stern boat cut away. 
 
 United States. — The right to claim Contribution de- 
 pends upon the usage to carry the boat in this situation, 
 4 
 
50 GENERAL AVERAGE. 
 
 and upon the expediency of so carrying it. The loss of 
 a boat, cut away from the stern-davits, was considered 
 to be a subject of General Average. Lenox v. United 
 States Ins. Co., 3 Johns Cas., 178. See also Hall v. 
 Ocean Ins. Co., 21 Pick, 472. 2d Phillips, p. 75. 1 
 Parsons, p. 289. 
 
 Anchor and chain voluntarily slipped, to avoid being 
 driven on shore, or to escape an enemy, or running foul 
 of other vessels, or to avoid any other impending peril. 
 
 United States. — When a ship at anchor is in danger 
 of driving on a lee-shore, during a gale, or when 
 another vessel riding near her, is driving towards her, 
 and a collision becomes probable, or when in violent 
 weather it becomes necessary to leave an anchorage, it 
 being no longer safe to remain there, and it is found 
 impossible to weigh the anchors ; or when to extricate 
 a vessel that has got ashore, her anchors and cables 
 have been carried out for the purpose of heaving her 
 afloat ; when in any of these cases the general safety 
 is secured by slipping from or cutting away the ground 
 tackle, such loss is made good in General Average. 
 
 The ropes or chains must really have been cut or 
 slipped for that purpose ; and there must have been 
 some reasonable expectation that their sacrifice would 
 produce the effect desired and intended. Proper pre-- 
 cautions should be taken for the recovery of the anchors 
 and cables, by having buoys attached to them previ- 
 ously to slipping. 
 
DAMAGE TO SHIP. 51 
 
 In making — good anchiors and cables slipped, it is the 
 custom to charge the entire cost of the anchor, and two- 
 thirds of a rope cable ; also two-thirds the price of a 
 chain cable. When chain cables were introduced 
 in this country, they were by many insurance compa- 
 nies exempted from the deduction of a third new for 
 old, for the purpose of encouraging the introduction. 
 
 England. — If a vessel be driving with her anchor 
 down ; or being in danger she let go her anchor, and 
 it hook or drop into moorings, rocks &c., and she be 
 obliged to slip, then it becomes General Average. It 
 is the custom to charge five-sixths of the price of a 
 chain cable to General Average. 
 
 France. — When the master has anchored in the course 
 of the voyage, and a sudden change of wind endangers 
 the ship, and the danger is so pressing that it is neces- 
 sary to the safety of the ship to fly immediately with- 
 out waiting to weigh anchor, and the master slips the 
 chain, the abandonment of the chain and anchor in such 
 cases is General Average. It is the duty of the master 
 to attach a buoy to his anchor when he can, and if he 
 fail in this duty he cannot recover its value in General 
 Average. If he regain the anchor, it is the cost of 
 repossessing himself of it that is allowed. M. Cauvet. 
 Traite sur les Assurances Maritimes. 
 
 When anchor, temporarily foul, is slipped to avoid im- 
 minent j)eril. 
 
 In case of a vessel fouling another ship's ground 
 
52 GENERAL AVERAGE. 
 
 tackle, and slipping from her oaMe to extricate herself 
 if the anchor could have been recovered in ordinarily- 
 fine vsreather, but a gale coming on makes it highly- 
 dangerous for her to remain vrhere she is, and the cable 
 is in consequence cut or unshackled, the loss is univer- 
 sally admitted to be General Average. 
 
 When foul under ordinary circumstances. 
 
 Not General Average. 
 
 If an anchor by -which a vessel is moored, be lost by 
 the parting of the cable, the loss is denominated " -wear 
 and tear," and is borne alone by the o-wner. It is an 
 ordinary casualty to -which vessels are liable. In fine 
 -weather and usual circumstances the chain, in this case, 
 then, hanging loose, -would be hove on board again. 
 But if after the parting, the ship drive and be in danger, 
 and the cre-w be too much occupied in other necessary 
 mancEuvres to heave in the chain, or if the chain by its 
 weight list the vessel dangerously on one side, the loss 
 of the remainder of the chain by slipping it is made 
 good by General Average Contribution. 
 
 Loss of a chain and anchor, by anchoring of necessity 
 under extraordinary circumstances in an unusual and 
 dangerous place. 
 
 United States. — There is a diversity of opinion on this 
 question. Some adjusters are of opinion that this dam- 
 
DAMAGE TO SHIP. 53 
 
 age, whether it happen in the usual course of the voyage, 
 or under extraordinary circumstances, is a part of the 
 "wear and tear" of the ship, for which the owner is enti- 
 tled to no C ontribution from the owner of the cargo, or 
 indemnity from his underwriters. 
 
 If the vessel be obliged to anchor in an unusually dan- 
 gerous place to avoid a worse danger, for instance, going 
 upon a lee shore, and can escape from this perilous situ- 
 ation only by cutting or slipping her cable, or if the place 
 of anchorage be a foul and rocky bottom, and the cable be 
 consequently chafed asunder by the friction, or the an- 
 chor so &mly wedged that it cannot be weighed, and if, 
 by the anchoring, it be evident that the vessel and cargo 
 have been preserved from a peril which threatened them 
 with inevitable destruction ; the loss of the chain and 
 anchor, or the expense of recovering them under such 
 circumstances, should certainly be made good by Gene- 
 ral Average Contribution ; though on principle, as the 
 damage thus incurred, was not intended or anticipated 
 as the result of the act, as it was directly caused not by 
 the agency and will of man, but by the force of the ele- 
 ments, it is not General Average. We think, however, 
 that adjusters would be perfectly safe in treating the loss 
 as General Average, for the parties interested would 
 scarcely object to a payment productive of so much ad- 
 vantage to themselves, and only questionable on theoret- 
 ical groimds. 
 
 We have perhaps stated one of the most urgent cases 
 that could occur, but it is one which happens more fre- 
 
54 GENERAL AVERAGE. 
 
 quently than others. The Adjuster must be governed by 
 the facts in each case, where the anchoring was appar- 
 ently voluntary, and not clearly for the purpose of saving 
 the property from some peculiar peril, it should not be 
 regarded as General Average. 
 
 That the principles of General Average are against the 
 allowance, see 2nd Phillips, § 1296. 1 Parsons, 290. 
 2nd Arnould, 897. 
 
 But when a ship in her ordinary navigation, drops her 
 anchor among rocks, or moorings of other vessels, and af- 
 terwards finds it impossible to weigh it, and is in conse- 
 quence obliged to unshackle the chain or cut the rope ca- 
 ble, the loss is borne by the owner ; for the anchor and 
 cable were in fact lost as soon as they were dropped, just 
 as much as if the cable had immediately broken. They 
 were in a situation from which they could not be recov- 
 ered, and so there could be no claim as for a voluntary 
 loss. If, however, a vessel be driving with her anchor 
 down, or being in danger she let go her anchor, and it 
 hook or drop into moorings, rocks, &c., and she be ob- 
 liged to slip, then it becomes General Average. 
 
 If an anchor by which a vessel is moored, be lost by 
 the parting of the cable, the loss is denominated " wear 
 and tear," and is borne alone by the owner. It is an or- 
 dinary casualty to which vessels are liable. 
 
 When anchors and cables are regained after others 
 have been bought to replace them, they are generally 
 sold for the benefit of those concerned with their loss 
 and the net proceeds of their sale, after deducting the 
 salvage and other expenses, go in reduction of the cost of 
 
DAMAGE TO SHIP. 55 
 
 new anchors and cables. If they be picked up previ- 
 ously to new ones being purchased, then the salvage and 
 all other expenses of the recovery are chargeable to Gen- 
 eral Average. 
 
 England. — Mr. Arnould says, though the principle is 
 not admitted to be General Average, in practice the loss 
 is not unfrequently treated as such. 
 
 France. — Not General Average as a rule. 
 
 Germany. — The question whether this loss should be 
 regarded as General Average, has been a fruitful sub- 
 ject of discussion among the German lawyers, and in 
 meritorious cases the claim is allowed. 
 
 Damage caused by steamers or lighters, in forcing off a 
 stranded ship. 
 
 General Average when unavoidable. 
 
 Damage hy steamers or lighters in forcing off a strand- 
 ed ship, when the result of m,ismanagement. 
 
 Not General Average. 
 
 Voluntary Damage to ship, which is' nevertheless totally 
 lost, part of the cargo being in lighters, and thus saved 
 at the time of the voluntary sacrifice. 
 United States. — In case of a sacrifice of a part of the 
 
 ship or cargo, for the general safety, if the property es- 
 
56 GENERAL AVERAGE. 
 
 cape the impending peril and be saved, a contribution is 
 to be made by "what is finally saved of the ship, cargo 
 and freight. But if the goods thrown overboard, or put 
 into boats, for the general safety, be saved, and the ship 
 and rest of the cargo be lost, no contribution is to be 
 made. If, however, the ship escape the peril on ac- 
 count of which a jettison is made, and be afterwards 
 wrecked, still whatever is saved from the wreck must 
 contribute for the jettison. 
 
 In England and France the rule is the same. 
 
 Damage to ship, by voluntarily running the ship on 
 shore. 
 
 In the United States, the damage by intentional 
 stranding, to avoid shipwreck, or loss, is a subject for 
 General Contribution. 
 
 Mr. Arnould states the law on the subject of volun- 
 tary stranding, in England, to be " where the ship is vol- 
 untarily run ashore to avoid capture, foundering or ship- 
 wreck, and is afterwards recovered so as to be able to 
 perform her voyage, the loss resulting from the stranding 
 is to be made good by General Average Contribution. — 
 There is no rule more clearly established than this by the 
 uniform course of maritime law and usage." And after 
 quoting the corresponding dictum ot Emerigon, Mr. Ar- 
 ' nould goes on to say : " The rule has been laid down in 
 the same way by Lord Tenterden in this country, and by 
 
DAMAGE TO SHIP. 57 
 
 Chancellor Kent in the United States, where it has re- 
 ceived the sanction of several decided cases." Arnould 
 on Ins. p. 898. But notwithstanding the opinion of this 
 distinguished English writer, the uniform practice of the 
 Average Adjuster is to disallow the loss or damage in 
 General Average. The question has never heen decided 
 hy the courts in England. 
 
 Mr. Hopkins (page 40) says " The underwriters at 
 Lloyds, put forward two reasons to show that this dam- 
 age is not of the nature of General Average. 1st, The 
 indefiniteness of the injuries to the ship purposely enter- 
 ed upon by running her ashore. 2nd, That in the case 
 of a ship about to founder; being run ashore, her impend- 
 ing fate was not probable, but absolutely certain. Had 
 she been left at sea she must have sunk ; and the driv- 
 ing her on rocks or sands was a desperate measure, a 
 mere sauve qui peut, and that consequently any danger 
 so incurred must be borne individually by the sufferer, 
 and not be made good by General Contribution," and he 
 adds " Though this reasoning has been left unquestioned 
 through a long series of years, the argument is not sound. 
 In all cases of General Average it is the rescuing the 
 joint interests from threatened loss or injury which is 
 the ground of the claim ; the more imminent the danger 
 avoided, the more clear is the advantage gained through 
 the means employed. If the dreaded destruction of ship 
 and cargo seemed, at the moment it was escaped, an 
 absolute certainty, the more cheerfully, it is to be 
 supposed, would all the persons whose property has been 
 
58 GENERAL AVERAGE. 
 
 saved, join in reinstating the loss of the suffering propri- 
 etor. If I give my hearty thanks to the man who saves 
 me from drowning by snatching me out of the shallow 
 water into which I had just fallen, are not my gratitude 
 and rewards due in a yet higher degree to him who 
 brings me on shore out of deep water, when my life was 
 on the very verge of extinction ? And if the saving of a 
 ship and her cargo, by some voluntary act, from possible 
 loss be the ground of General Average Contribution, a 
 fortiori, it must be the ground of the same when the pro- 
 babilities of loss have so increased as to amount to an 
 almost certainty." 
 
 We agree entirely with Mr. Hophiris, that the reasons 
 given by the Lloyd's underwriters against this damage 
 being contributed for, viz: that " the impending fate of 
 the vessel was not probable, but absolutely certain," is 
 without sufficient foundation, the same reason could ap- 
 ply as well to all other cases of jettison, for if the danger 
 be not so great that the loss is otherwise inevitable, where 
 is the right of the master to anticipate or hasten the de- 
 struction of any part of the adventure ? Does a master 
 ever make (rightly) a jettison, cut away a mast, or run 
 his ship ashore, unless the loss at the time he resolves on 
 the measure be inevitable unless he resort to it ? Is the 
 master to throw over cargo, or mutilate his ship out of 
 mere apprehension ? Does he ever do it unless all rea- 
 sonable hope of otherwise saving the adventure be gone ? 
 He is not to be justified in a fear from slight causes, nor 
 in anticipating that total destruction to a part which 
 
DAMAGE TO SHIP. 59 
 
 awaits the whole adventure, unless to all human judg- 
 ment safety from any other measure be hopeless. When 
 the ship has been overcome in her struggle with ocean 
 and tempest, and is in danger of foundering, and when 
 lightening her is the only measure to avert this other- 
 wise certain peril, then first arises the right to throw over 
 the cargo ; it is a right only born at the last degree of 
 distress in his ship. If it can be shown that the vessel 
 was not in much danger, that she would not in all hu- 
 man judgment sink unless relieved, the jettison would be 
 unwarranted, so too in any case of voluntary stranding, if 
 it could be shown, that, by any means in the master's 
 power, by holding on to anchors, or by making a pressing 
 sail, he could avoid the danger, he is not warranted in 
 beaching his ship. The peril, therefore, being in its na- 
 ture inevitable, so far from being a reason to prevent a 
 contribution, is on the contrary essential to it. The 
 greater the danger and the more inevitable by any other 
 means than by measures to anticipate its action, the 
 more justifiable is the act of courage thus anticipating 
 it, and the more rightful the demand of Contribution. 
 
 France. — The damage by voluntary stranding is al- 
 lowed in Greneral Average, provided the ship be got off 
 with her cargo en board, or if, the cargo having been 
 landed, she take her cargo again on board and proceed to 
 a port of refuge or resume her voyage. Gauvet, § 345-7. 
 The Marine Ordinance of Louis XIV, declares, "that 
 if the jettison save not the ship there is no ground of 
 contribution," This provision of the ordinances, taken 
 
60 GENERAL AVERAGE. 
 
 from the Rhodian law, was incorporated into the existing 
 French code, and is found in many of the maritime codes 
 of Europe. "Commentators are agreed," saysM. Cauvet, 
 " that the word jettison, as here used, is to he taken 
 in an enlarged sense, and as an example of all sacrifi- 
 ces." If, therefore, the ship, though voluntarily strand- 
 ed, he not saved, there is no Contribution. " If the vol- 
 untary stranding be followed by shipwreck," says Emeri- 
 gon, it is ' sauve qui pent' — 'save who can!' Mere- 
 ditKs Emerigon, 475. 
 
 In the United States, there was conflicting authority, 
 whether there is to be Contribution, if the vessel be, by 
 the stranding totally lost, until the decision of the Su- 
 preme Court, in the case of Barnard v Adams, 10 How- 
 ard, 270, which has settled that Contribution is to be al- 
 lowed. 
 
 The new German code (§ 708) declares, that " dama- 
 ges caused by voluntary stranding in order to avoid cap- 
 ture or sinking, are General Average ; but if the strand- 
 ing were in order to avoid sinking, and the ship be not got 
 off", or after being got off" be found incapable of repair, 
 the damage is not General Average. 
 
 The Spanish code (art. 933) declares, like the French, 
 that " if the vessel be lost notwithstanding the jettison, 
 the damage shall be Particular." This language, taken 
 substantially from the French code, is probably interpre- 
 ted by the tribunals of Spain in the same manner, and, 
 as a consequence, unless the vessel be saved, there is no 
 Contribution. 
 
 The maritime codes of Holland, Norway, Sweden and 
 
DAMAGE TO SHIP. 61 
 
 Denmaek all make damage to ship or cargo caused by 
 a voluntary stranding, in order to avoid capture or foun- 
 dering or other imminent danger to ship and cargo con- 
 jointly, General Average, and without regard to the 
 question whether the ship be subsequently refloated or 
 not. 
 
 When a ship is in peril so imminent that her total loss is 
 inevitable, to all appearances, is a voluntary stranding 
 made vnth a view of saving the ship and her cargo 
 from total destruction to be contributed for in General 
 Average, in the event of anything being thereby saved ? 
 
 In the United States this question was considered 
 settled by the Supreme Court in December Term 1850, 
 in the case of the ship " Brutus." {Barnard y. Adams, 
 10 Howard, 270, 302). Mr. Justice Grier, delivering 
 the opinion of the court, said : " The ship ' Brutus ' was 
 lying at anchor at the usual place of mooring vessels in 
 the outer roads of Buenos Ayres, about seven miles from 
 the shore. The width of the river at that place, be- 
 tween Buenos Ayres and Colonia on the opposite shore, 
 is about fifteen miles. The Brutus had taken her cargo 
 on board for New York, consisting of skins, dry hides, 
 horses and jerked beef. The master was on shore, and 
 she was in charge of the first mate, with a crew con- 
 sisting of twelve persons in all. On the 7th a gale had 
 commenced, which on the 8th had become dangerous. 
 About four o'clock the next morning, the ship began to 
 
62 GENEEAL AVERAGE. 
 
 drag her anchors, and the small bower anchor was let 
 go. About nine o'clock in the evening, the gale in- 
 creasing, the best bower anchor parted with a loud 
 report. About ten o'clock the small bower parted, and 
 the ship commenced drifting broadside with the wind 
 and waves. Endeavors were then made, to get the ship 
 before the wind, which failed on account of the chains 
 keeping her broadside to the sea, which was making a 
 breach over her fore and aft. The chains were then 
 slipped and the vessel got before the wind, two men 
 were put to the wheel, and one man to the lead, and it 
 was determined ' to run the ship ashore for the preser- 
 vation of the cargo and the lives of the crew.' It was 
 then about eleven o'clock at night, when the ship was 
 got before the wind and under command of the 
 helm. The shore next to Buenos Ayres, towards which 
 the ship had been drifting, had banks and shallows 
 extending out some three or four miles. If the vessel 
 had been driven on these by the tempest, she would 
 have been wrecked and lost together with the cargo and 
 crew. On the Colonia side of the river, were sunken 
 rocks several miles from the shore. ' For the purpose of 
 saving the cargo and crev/ any how, and possibly the 
 vessel,' she was steered up the river, inclining a little 
 towards the Buenos Ayres side, with the intention of 
 running her on shore at a convenient place. After they 
 had proceeded up the river, about ten miles, the mate 
 discovered from the flashes of lightning, that the vessel 
 was approaching a point called St. Isidro, off which he 
 
DAMAGE TO SHIP. 63 
 
 perceived something "black, which he supposed to he 
 rocks, and being afraid, or ' thinking it impossible to 
 get hy ' this point without heing wrecked or lost, he 
 directed the course of the vessel to be changed towards 
 the shore, where he had seen what he supposed to be a 
 house, but which turned out to be a large tree. About 
 midnight the vessel struck the beach, and the rudder 
 was knocked away. The fore-sail was then hauled up, ' 
 but the stay-sail was let remain to keep her head 
 straight, and she continued to work herself up until 
 daylight. The place where she was stranded was a 
 level beach about 200 yards above ordinary low water 
 mark. The ship was not wrecked or broken up, though 
 somewhat damaged, and the cargo was not injured. 
 The master chartered the Bark ' Serene,' and transferred 
 the c?jTgo to her. But it was found that, with the 
 means to be obtained in that vicinity it would have cost 
 more than the ship was worth to get her oif the beach. 
 She was therefore sold. The ' Serene ' afterwards arrived 
 safely at New York, under command of Captain Adams, 
 former master of the ' Brutus.' In transhipping the 
 jerked beef from the ' Brutus ' to the ' Serene,' a portion 
 of it got wet, and when it arrived at the port of New 
 York, it was all found to be worthless. 
 
 ****** 
 
 " It cannot be denied by any one who will carefully 
 compare this case with that of the 'Hope,' (13 Peters, 
 331), unanimously decided by this court, and the cases 
 of Caze V. Eeilli/, (Wash. C. C. R., 298), Sims v. 
 
64 6ENEKAL AVERAGE. 
 
 Gurney, (4 Binney, 413), and Gray v. Wain, (2 Serg. 
 & R., 229), which have received the ' unqualified assent ' 
 of this Court, that whatever distinctions may be taken 
 as to the accidents and circumstances of these cases, 
 they do not materially or substantially differ from the 
 present, so far as the point now under consideration is 
 concerned ; and that we are now called upon to recon- 
 sider and overrule the doctrine established by those 
 cases. But however they may appear to be contrary to 
 certain abstract propositions stated by some text writers 
 on this subject in England, and a case or two in this 
 country, the policy and propriety of overruling our own 
 and the three other decisions which have received our 
 ' unanimous approval,' even if we be not now satisfied 
 with their correctness, may well be doubted. There 
 are few cases to be found in the books, which have been 
 more thoroughly, laboriously and ably investigated, by 
 the most learned counsel and eminent judges. In 
 questions involving so much doubt and difficulty, it is 
 of more importance to the mercantile community, that 
 the law be settled and litigation ended, than how it is 
 settled. No decision of a question depending on such 
 nice and subtle reasoning will meet the approbation of 
 every mind, and if the cases we have mentioned, have 
 failed of this effect, it may well be doubted, if any rea- 
 sons which could 4)0 given for overruling them would 
 prove more successful. * 4fe ^ * # rj^j^g 
 law of General Average has its foundation in equity. 
 The principle, that, ' what is given for the general benefit 
 
DAMAGE TO SHIP. 65 
 
 of all, shall be made good by the Contribution of all,' is 
 recommended not only by its equity, but also by its 
 policy, because it encourages the owner to throw away 
 his property without hesitation, in time of need." 
 
 " In order to constitute a case for General Average, 
 three things must concur. 1st. A common danger ; a 
 danger in which 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 portion of the whole." 
 
 " 3rd. The attempt to avoid the imminent common 
 peril must be successful. It is evident from these pro- 
 positions, that the assertion so much relied on in the 
 argument, viz : ' That if the peril be inevitable there 
 can be no Contribution,' is a mere truism ; as the 
 hypothesis of the case requires that the common peril 
 though imminent, shall be successfully avoided. Those 
 who urge it must therefore mean something else. And 
 it seems when more carefully stated, to be this : ' That 
 if the common peril were of such nature, that the j actus 
 or thing cast away to save the rest, would have perished 
 any how, or perished ' inevitably,' even if it had not 
 been selected to suffer in place of the whole, there can 
 be no Contribution. If this be the meaning of this 
 
 proposition, and we can discover no other, it is a denial 
 5 
 
66 GENERAL AVERAGE. 
 
 of the whole doctrine upon which the claim for Gene- 
 ral Average has its foundation. For the master of the 
 ship would not be justified in casting a part of the cargo 
 into the sea, or slipping his anchor, or cutting away his 
 masts, or stranding his vessel, unless compelled to do it 
 by the necessity of the case, in order to save both ship 
 and cargo, or one of them, from an imminent peril 
 which threatened their common destruction. The neces- 
 sity of the case must compel him to choose between the 
 loss of the whole and part ; but however metaphysi- 
 cians may stumble at the assertion, it is this forced 
 choice, which is necessary to justify the master in 
 making a sacrifice, (as it is called) of any part for the 
 whole. Hence, the answer of every master of a vessel 
 when examined, will be, ' I considered the destruction 
 of both ship and cargo ' inevitable ' unless I had thrown 
 away what I did.' ' The goods thrown away would 
 have gone to the bottom any how.' If the case do 
 not show that the jettison was ' indispensable ' in order 
 to escape the common peril, the master would himself 
 be liable for the loss consequent therefrom. It is for 
 this reason, that the ordinances of Marseilles, require 
 that the master should have a consultation with the 
 supercargo and crew, as to the absolute necessity of the 
 measure, and as evidence that it was not done through 
 the vain fears, cowardice or imprudence of the master. 
 But the right to Contribution was not made to depend 
 on any real or presumed intention to destroy the thing 
 cast away, but on the fact that it has been selected to 
 sufier the peril in place of the whole, that the remainder 
 
DAMAGE TO SHIP. 67 
 
 may be saved. The anchor lost by voluntarily slipping 
 the cable may be recovered, the goods jettisoned may 
 float to the shore and be saved, and yet if the anchor or 
 goods had not been cast away, they would have been 
 ' inevitably ' lost, and there would have been a total 
 loss of both ship and cargo. Take the case of Caze v. 
 Reilly. A vessel completely surrounded by the enemy's 
 cruisers. It is impossible to save both ship and cargo 
 from capture and a total loss. A part or the ' whole of 
 the cargo is thrown overboard, and thus the vessel 
 escapes. This is an admitted case for Contribution. 
 And it is no answer to the claim of the owners to say, 
 ' Tour cargo was ' inevitably ' lost ; as it was situated 
 it was worthless, and consequently you sacrificed nothing 
 for the common benefit. Besides a portion of it floated 
 on shore and was saved from capture, or was fished from 
 the bottom without sustaining much injury ; the throw- 
 insr it overboard was the best thing that could be done 
 for it under the circumstances, as without that it would 
 have been ' inevitably lost.' But suppose, as in the 
 case referred to, the ship cannot be saved by casting the 
 cargo into the sea, but the cargo which is of far greater 
 value, can be saved by casting the vessel on the land, 
 or stranding her. Is it any answer to her claim for 
 Contribution, to say, that her loss was ' inevitable,' she 
 was in a better situation on the beach, than in the 
 hands of the enemy, or at the bottom of the sea, or 
 wrecked upon rocks, and therefore ih.exe was no such 
 sacrifice as would entitle her to Contribution? We 
 carmot comprehend why this argument should have no 
 
68 GENERAL AVERAGE. 
 
 weight in the first case (which is an admitted case of 
 Contrihution in all the books), and yet that it should be 
 held as a conclusive obstacle to the recovery in the 
 latter. The replication to this objection in the first 
 instance, and the conclusive one, is, ' the vessel and 
 cargo were in a common peril, where both or all could 
 not be saved ; the vessel alone, or the vessel and part 
 of the cargo has been saved, by casting the loss upon 
 the cargo, and this constitutes the very hypothesis on 
 which the doctrine of General Average rests.' Why 
 then should there be a difference in principle, where the 
 cargo is damaged or lost, by being cast into the sea, 
 and the, ship saved ; and the case, where the ship is 
 damaged or lost by a voluntary stranding, or by being 
 cast on the land, and the cargo saved, is a question 
 which has never yet been satisfactorily answered. In 
 fact, we do not understand the counsel to contend that 
 the Brutus was not entitled to Contribution, because she 
 could not be got afloat at a less cost than her value. 
 The principle on which the counsel relied, is that 
 enunciated in the opinion of the court in Walker v. 
 United States, 11 Serg. and R. 61. ' It is not enough,' 
 says the learned Judge, ' that there be a deliberate 
 intent to do an act which may or may not lead to a loss ; 
 there must be a deliberate purpose to sacrifice the thing 
 at all events, or at the very least to put it in a situation 
 in which the danger of eventual destruction would be 
 increased. 
 
 ***** ^ 
 
 "The fact that goods thrown overboard are in no 
 
DAMAGE TO SHIP. 69 
 
 worse or even a better condition as to chances of 
 safety than if they had remained on board, or that the 
 stranded vessel is in a better condition than if she had 
 been wrecked or sunk, cannot affect the right tO Contri- 
 bution of that part which was selected to suffer in place 
 of the whole. * * * Let us briefly com- 
 pare the facts of this case with the principles we have 
 stated and inquire, 1st, What was the common peril, 
 and 2nd, Was any portion of the joint adventure saved 
 from it, by the transfer of the risk or loss to another." 
 
 " The common peril, which in this case was sought 
 to be avoided, was shipwreck, or the destruction of ves- 
 sel, cargo and crew. The ship lay at anchor — she was 
 assailed by a violent tempest— her cables broken— her an- 
 chors gone ; and she was being driven by the force of the 
 gale broadside upon the shallows extending three miles 
 out from the shore at Buenos Ayres. In order to save 
 the cargo and crew, it is determined to put on sail and 
 run up the river to find a safe place to strand the vessel. 
 They proceed ten miles up the river, when they encoun- 
 ter another peril at Point St. Isidro. To avoid being 
 wrecked on the rocks the course of the vessel is imme- 
 diately changed, and she is steered directly for the 
 shore, and run upon a sandy beach where she is left 
 high and dry by the tide. The cargo is saved without 
 injury, but the ship is on the land, where she is com- 
 paratively valueless, on account of the expense which 
 must be incurred to replace her in her element. By 
 the will and directions of the master, she has become 
 the victim, and borne the loss, that the cargo might 
 
70 GENERAL AVEBAGB. 
 
 escape from the common peril. It is true she has not 
 been wrecked or lost, as she inevitably would, had she 
 been driven on the flats, by the tempest at Buenos 
 Ayres, or been foundered on the rocks off Point St. 
 Isidro, but she has voluntarily gone on shore, which 
 Was death to her while it brought safety to the cargo. 
 And ice are of the opinion that she has the same right to 
 demand Contribution, that the owners of the cargo would 
 have had against her, had it been cast into the sea to e?i- 
 sure her safety." 
 
 This important decision, therefore, seems to establish 
 the law, that, where the situation of the ship is such, 
 that the pawer of voluntary action remains, so that not- 
 withstanding the fury of the elements, the point of 
 stranding may be selected, and benefit results from the 
 change in the course of the ship ; or if the place where 
 she actually takes ground be of such a nature as to 
 involve less danger to the cargo, than that to which she 
 was drifting before her course was altered, it constitutes 
 a claim for General Average Contribution. 
 
 Damage done to ship hj scuttling to extinguish fire. 
 
 This damage is in the United States, France, Hol- 
 land and Belgium, allowed in General Average. 
 
 Mr Arnould, (vol. 2, p. 900), states the laio in Eng. 
 land to be : "If part of the ship be intentionally cut 
 away and damaged, in order to come at or extinguish an 
 accidental fire, which threatens the destruction of both 
 
DAMAGE TO SHIP. 71 
 
 ship and cargo, there can be no douht that such dam- 
 age gives a claim to Contribution." According to the 
 English practice however, the means taken to extinguish 
 fire, as by pouring water into the hold, and the scuttling 
 of the ship to sink her, are not allowed to constitute a 
 General Average. Whatever damage the cargo may 
 sustain by that course must be borne by the cargo, and 
 the ship must bear by itself all injury done to it. 
 
 The damage done to .ships, in order to extinguish the 
 spontaneous combustion of part of the cargo, has been 
 held both in France and the United States, not to give 
 a claim to contribution Crockett v. Bodge, 3 Fairfield 
 R., 190. Emerigon, chap, xii., sec. 17, vol. 1, p. 430, 
 ed. 1827. 
 
 Damage to ship by worms, at a port of refuge. 
 
 Not allowed in any country, so far as we can ascer- 
 tain. 
 
 Damage to ship by defence against pirate or enemy. 
 
 The damages received by a vessel whilst defending 
 herself against an enemy, are not claimable as General 
 Average ; nor the cost of the ammunition expended ; 
 nor the expense of curing the wounds of the crew so 
 engaged. This rule appears to be universal. 
 
 Mr. Beneclie is of opinion, that damage to ship and 
 cargo by an engagement with an enemy in defence of 
 
72 6ENEEAL AVERAGE. 
 
 the property, ought to be a subject of General Average. 
 (London ed., 1824, p. 231). 
 
 No decision to this effect has, however, been made in 
 England or the United States, but on the contrary, it 
 has been held in England, that the claim cannot be 
 sustained. In Taylor v. Curtis, 6 Taunt, 608, claim 
 was made for Contribution for damage sustained by an 
 English merchant vessel, in beating off an American 
 privateer ; and for expenses incurred in healing the 
 wounded seamen. Chief Jiistice (?z66s said : "It was 
 the duty of the sailors to defend the ship. By so doing 
 all parties have been benefitted. But in what respect 
 have the captain and crew exceeded their proper duty ? 
 What sacrifice have they made which they were not 
 bound to make ? The expense of medical and surgical 
 aid must be borne by the parties themselves. I am of 
 the opinion that it does not fall within the principles 
 of General Average." Mr. Holt gives reasons in sup- 
 port of this opinion. 1 Holt's R., 194. 
 
 "With regard to a ship of war, it is obvious, that the 
 damage caused by fighting is no more than an ordi- 
 nary sea risk, — a loss caused by the perils insured 
 against in the usual and ordinary course of the ship's 
 duty as an armed vessel, and not an extraordinary 
 measure resorted to for the general benefit ; but with 
 regard to a merchant vessel resorting to the measure of 
 resisting a vessel of superior power as a desperate and 
 only means of saving both ship and cargo from capture, 
 the loss thence arising appears on principle, a fair sub- 
 ject for General Average Contribution ; it is a loss which 
 is the direct and anticipated result of an extraordinary 
 
Damage to ship. 73 
 
 measure resorted to as the only means of saving the 
 whole adventure from imminent peril ; and ought not, 
 it should seem, to be regarded as falling within the 
 scope of those ordinary duties of the navigation to which 
 the owner is bound by his contract with the freighter. 
 Arnould, 897. 
 
 Mr. Stevens (Stev. & Ben., 5th ed., 36), admits that 
 there should be a distinction made between the two 
 cases, but considers that even in the case of a merchant 
 ship the loss so incurred would not be General but 
 Particular Average; though he acknowledges that 
 many well-informed underwriters think it should be 
 General Average ; it seems, on principle that they are 
 right. 
 
 Casaregis (Disc. 46, n. 43, 44), says, "the damage to 
 the ship and cargo by lighting is Particular Average, 
 but if the engagement were intended merely for the 
 defence and safety of the ship and cargo, all the ex- 
 pense of the engagement, including that of healing the 
 wounded and the reward to the men for their bravery, 
 are subjects of Contribution." 
 
 Anchors and chains damaged in forcing a stranded 
 ship off. 
 
 General Average, if the measures taken to refloat the 
 ship be successful. 
 
74 GENERAL AVERAGE. 
 
 Sails damaged in forcing a stranded ship off. 
 General Average, if successful. 
 
 Boats lost or damaged, in forcing a stranded ship off. 
 General Average. 
 
 Damage to ship, by sails cut and altered to serve for 
 others lost. 
 
 In the United States, the damage to sails cut up 
 and destroyed to fit the place of other sails previously- 
 lost, is not allowed in General Average, for the reason, 
 that they have only been applied to the purposes origi- 
 nally intended when put on board, viz: — ^the safe 
 navigation of the ship. 
 
 Damage to ship's materials hy using them for purposes 
 for which they were not constructed, in order to save all 
 the interests concerned during imminent peril. 
 
 United States. — If any part of the ship or her tackle 
 be applied for the common benefit to some purpose dif- 
 ferent from its ordinary use, the loss thence arising is a 
 General Average loss, as if spars be cut up to construct 
 a rudder, or sails and cordage used to stop a leak, &c. 
 
 England. — In general, the diversion of stores or any 
 
DAMAGE TO SHIP. 75 
 
 materials of a ship from their original and intended pur- 
 pose, to some other use necessary but not contemplated, 
 hrings them within the class of General Average. So, 
 sails used to cover the decks or hatches after an accident 
 to prevent water going below, or hauled under the ship's 
 bottom to stop leaks there ; so, a hawser or ropes em- 
 ployed to support a mast or secure a rudder ; so, even, 
 coils of new rope, being the ship's stores, used on any ex- 
 traordinary emergency for the general safety of ship, car- 
 go and freight ; so, ropes and other articles used for 
 chocking and securing a cargo of iron or other heavy 
 goods which has broken adrift in the hold and endangers 
 the general safety, are all classified under this head. 
 Bat if, when owing to straining, the decks have become 
 leaky, and to protect the cargo below from drip, sails be 
 taken into the hold to cover the perishable merchandise 
 and be thus injured or destroyed, the case is different ; 
 the sole object of the sails being so used is to cover the 
 cargo and prevent injury to it, and the loss or damage 
 received by them is applicable to the cargo only. 
 
 Mr. Arnould, vol. 2, page 897, cites a case, {BirMey v 
 Presgrave, 1 Bast, 219) where, in order to prevent a ship 
 which was lashed to the head of a harbor pier, from being 
 drifted thence by the fury of a storm, and sunk on the 
 bar of the harbor, the master cut the cable of his best 
 bower anchor, and with that fastened her to the pier, it 
 was held that the damage thereby done to the cable was 
 a General Average loss. 
 
 And the decision was the same in a case, where the 
 master, impelled by necessity, cut away his cable from 
 
76 6ENEEAL AVERAGE. 
 
 the anchor to act as a hawser. Marsham v Dutrey, se- 
 lect cases of Evidence, 58. 
 
 In Prance, Spain, Holland, Belgium and other mart- 
 time countries, the rule is, without exception, as far as 
 we can learn, to make good in General Average, the da- 
 mage sustained to ship's materials by using them, for 
 the common benefit, for purposes for which they were not 
 constructed. 
 
 Jury masts and Ship's stores used in securing masts. 
 General Average in most cases. 
 
 Whether the accidental stranding is to be deemed a vol- 
 untary or intentional stranding within the meaning 
 of the law, when it appears that the stranding was 
 either directly or incidentally occasioned hy the inten- 
 tional exposure of the vessel to extraordinary perils out 
 of the usual course of navigation, and of the ship's 
 duties as a common carrier. 
 
 No case, in either the United States or in Europe, has 
 yet determined that accidental damage, to the risk of 
 which the deviation has exposed the vessel or cargo, 
 should he Contributed for in General Average ; and espe- 
 cially in the case of loss or damage by stranding, the 
 language of the American and English books is uniform 
 that to make a stranding a General Average loss, it must 
 
DAMAGE TO SHIP. 77 
 
 be the immediate result of the act and volition of man 
 directed toward that particular object. 
 
 An accidental stranding which was the consequence 
 of risks incurred by deviating to repair damage occa- 
 sioned by a vis major or casfortuit, is not General Ave- 
 rage. 
 
 When, however, a part of the cargo is selected from 
 the rest to be subjected to an extraordinary peril, as by 
 being placed in lighters, the loss of it in consequence 
 must be contributed for, yet the same principle does not 
 apply to the ship, for the carrier is bound by the contract 
 to expose the vessel and her furniture, if necessary, tho' 
 not actually to destroy them. 
 
 Though the expenses of entering a port to repair a Par- 
 ticular Average, are Contributed for in England ; and in 
 America, even the wages and provisions of the crew du- 
 ring the deviation, it has never been held that risks, in- 
 curred by such a deviation, are assumed by all the in- 
 terests ; nor that, when they are different and greater 
 than those incurred in the ordinary course of navigation 
 for the voyage, a loss in consequence is to be Contributed 
 for ; all the cases and writers, both American and for- 
 eign agree, that, to make a loss by stranding, a General 
 Average loss, it must have been voluntary, or the imme- 
 diate effect of a resolution to effect that object. 
 
 M. Cauvet in his Traite sur les Assurances Mari- 
 times, says the practice in France is not to allow in 
 General Average, the damage to a ship by accidental 
 stranding in entering a port of refuge. 
 
78 GBNEltAL AVERAGE. 
 
 Loss or damage — voluntarily — to the property of others 
 for the general benefit, e. g. If the crew of one vessel 
 be obliged to cut the cable of another to preserve their 
 own ship and cargo. 
 
 United States. — It has been held that the right to 
 Contribution, strictly so called, does not extend beyond 
 those who voluntarily embark in a common adventure • 
 and that if A's vessel be about to come in collision 
 with B's, which is at anchor, and B cut his cable and 
 thus avoid it, he has no claim for Contribution against 
 A for the loss of the cable and anchor. The John Per- 
 Icins, U. S. C. C. Mass. 1857. 21 Law Reporter, 87-97. 
 
 But if the crew, for the safety of their own ship and 
 cargo, cut the cable of another ship, the loss ought to 
 be made good by a General Average on the ship and car- 
 go, for the safety of which the damage was done. 
 
 England. — Mr. Arnould (898) says : " If with a view 
 to the general safety of ship and cargo, it become ne- 
 cessary to damage and destroy another ship, or any part 
 thereof, the loss thereby must, it seems, be made good 
 by a General Average Contribution." And he cites the 
 case put by Casaregis (Disc. 46. n. 45. 63) viz : "If a 
 number of ships be lashed together, and one take fire, 
 and the crews of the others unite in scuttling the burn- 
 ing ship for the safety of the rest, the loss of the ship so 
 sunk, must be Contributed for by those saved. 
 
LOSS ON FREIGHT, 79 
 
 LOSS ON FEEIGHT. 
 
 By Jettison of Cargo. 
 
 The owner's freight heing, so to speak, contained in 
 the goods, shares the fate of the merchandise, and is 
 jettisoned with the goods thrown overheard. The lost 
 freight is, therefore, also recoverahle in General Average 
 Contribution. This rule is universal. 
 
 By Voluntary Stranding. 
 
 In those countries where the loss of the ship by volun- 
 tary stranding is Contributed for, the freight lost is also 
 Contributed for. As we have already stated in what 
 countries damage to or loss of ship by voluntary strand- 
 ing is Contributed for, it is unnecessary to repeat it here. 
 
 LOSS OR DAMAGE TO CARGO. 
 
 Loss of Cargo in discharging when a vessel is at a port 
 of refuge. 
 
 United States. — If it be necessary, for the general 
 benefit, to take out and store the cargo until the ship is 
 repaired, and then return it, the whole expense of this 
 is General Average, and if the goods be damaged in 
 
80 GENEEAL AVERAGE. 
 
 consequence of such remoyal, they are Contrihuted for. 
 But an internal decay of the goods in port should in 
 no case belong to General Average, being alone to be 
 ascribed to the quality of the goods, which ought never 
 to prejudice the rest of the shippers or the ship-owner. 
 The trade in perishable commodities is, by its nature, 
 exposed to greater hazards than that in other goods, and 
 the occasional losses to which such articles are subject, 
 from internal decay, must be counterbalanced by the 
 extraordinary profits which they sometimes yield, owing 
 to the very circumstance of their being perishable. A 
 tacit agreement cannot be supposed to subsist between 
 the shippers of goods not perishable, and those of perish- 
 able goods, by which the latter could be justified in 
 demanding from the former an indemnity for the decay 
 of their goods occasioned by any detention whatever ; 
 for such an agreement would be decidedly to the disad- 
 vantage of the former, because they would run a part of 
 the risk on the perishable goods, without ever having 
 any share in the profits. Owners and merchants sufier 
 already too much by the practice of not attending to the 
 distinction which should be made between goods liable 
 and goods not liable to decay, in the adjustment of such 
 external damage as belongs to General Average, for in- 
 stance, that occurring on a jettison ; and of considering, 
 and allowing for, that part of the loss which ought in 
 reality to be ascribed to the quality of the goods, as if it 
 were the consequence of a measure taken for the gene- 
 ral benefit. With equal, nay perhaps greater propriety, 
 might other losses arising from the detention, such as a 
 
loss OR DAMAGE TO CARGO. 81 
 
 fall in the market, interest of money &c., be brought 
 into General Average. 
 
 In Shelton v Brig Mary, U. S. D. C, Mass. 5 Law- 
 Reporter, 75, it was necessary to remove the cargo in 
 order to repair the vessel, but the cargo was so much 
 damaged that it was also necessary to unload it for its 
 own preservation. While on shore, part was destroyed 
 by fire. Held, under these circumstances, that no Con- 
 tribution was due, as the owner could not be considered 
 as having made a voluntary sacrifice, for the purpose of 
 prosecuting the voyage. 
 
 In BondY the Superb, 1 Wallace Jr., 355, it was held 
 that the removal of part of a cargo of perishable fruit, in 
 a port of necessity, for the purpose of repairs, which in- 
 creased an incipient decay, and hastened a partial des- 
 truction of the fruit, did not give the owner of the cargo 
 a claim for General Averaiie. 
 
 In England — the practice is not to allow in General 
 Average, the loss or damage to cargo, by a forced dis- 
 charge at a port of refuge. 
 
 France. — Damage or deterioration to the cargo, caused 
 by the unloading, when unloading is necessary to effect 
 repairs, and repairs are made, is General Average. So 
 the expense of storing and reloading the cargo, is 
 General Average. But damage to or loss of goods in the 
 storehouse in a port of refuge by water, or by fire, is not 
 General Average, but falls on the proprietor. 
 
 " Our custom sanctioned by a decision of the Tribunal 
 of Commerce of Marseilles," says M. Cauvet (§372) " is 
 to reduce the deficiency in quantity to be allowed, to 
 
 5 
 
82 GENERAL AVERAGE. 
 
 the mean proportion which the same kind of merchan- 
 dise ordinarily suffers in landing, when there has heen 
 no circumstance to aggravate it. For the cereals and 
 grains, this loss is estimated at two per cent, of the 
 quantity loaded on hoard. Coopering and re-haling 
 packages are allowed. 
 
 Holland. — The loss or damage of the cargo, sustained 
 by the discharge and loading into lighters or boats of 
 the ship when in distress, on the reloading on board the 
 vessel, is General Average. Dutch Commercial Code, 
 §699. 
 
 Loss of Cargo by sales effected to pay General Average 
 expenses at a port of refuge. 
 
 Where the repairs are General Average charges, the 
 taking of the cargo by the master, and the application by 
 him of the proceeds for the common benefit, is a forced 
 loan on account of the owners of the vessel, freight and 
 cargo, for which each subject is bound to contribute their 
 respective proportion, in like manner as if the cargo had 
 been jettisoned for the sake of the whole. 3 Mason, 
 255, 260 ; 2 Metcalf 140, 144. 
 
 In the Gratitudine, 3 Rob. Adm., 240, 263 (which 
 was a case of a master hypothecating his cargo to pay 
 for necessary repairs). Lord Stowell said the books over- 
 flowed with authorities that the master might sell part 
 of his cargo, and that a sale of a part was equivalent to 
 the hypothecation of the whole, and was a fit subject for 
 General Average. And Lord Ellenborough, in Dohson 
 
LOSS OR DAMAGE TO CARGO. 83 
 
 V Wilson, 8 Camp. 480, 487, expressed his opinion that 
 if a ship should be seized for the non-payment of the 
 sound-dues, and it became necessary to sell a part of the 
 cargo, in order to obtain her release, this might be the 
 foundation of a claim for General Average. See also, 
 Richardson v Nourse, 3 B. & Aid., 237 ; The Constancia, 
 4 Notes of Cases, 677. Mr. Justice Story, in the case 
 of the ship Packet, 3 Mason, 255, 260, said: "In the 
 case of the sale of a part of the cargo by the master for 
 the necessities of the ship, the sale is in the nature of a 
 compulsive loan for the benefit of all concerned, and to 
 enable the ship to prosecute her voyage. It bears a con- 
 siderable resemblance to the case of a jettison, for the 
 owner is deprived of his property for the common good, 
 and to him it must be immaterial whether the loss be by 
 a sacrifice at sea, or on shore." See also, Giles v Eagle 
 Ins. Co., 2 Met. 140, 144, where the loss on the sale of 
 a quantity of salt, which had been sold to pay the ex- 
 penses incurred in getting ofi" and repairing a vessel, 
 which had been driven on shore in a gale, was compen- 
 sated for in General Average. In the schooner Leonidas, 
 Olcott, Adm, 12, 15, there is a dictum that where the 
 master sells part of the cargo to supply the necessities of 
 the ship, the owners would probably be entitled, in case 
 the ship or owners could not satisfy their demand, to 
 compel the other owners of the cargo to contribute ac- 
 cording to their respective interests. 
 
 In Shelton v hrig Mary, 6 Law Reporter, 75, specie 
 was shipped from Boston to Porto Cabello to purchase a 
 return cargo. The vessel was obliged to put into Anti- 
 
84 GENERAL AVERAGE, 
 
 gua, and while there the master, being destitute of funds, 
 sold part of the specie for the purpose of making repairs, 
 and the vessel proceeded to her port of destination, and 
 thence to Boston. It was admitted that the specie should 
 be paid for in General Average, and it was held, that the 
 owners were entitled to interest on the same from the 
 time when they would have had the benefit of it at 
 Porto Cabello, if it had been carried forward. 
 
 Mr. Arnould (895) states the law of England to be — 
 
 1. " That where goods are sold by the captain in order 
 to raise funds for repairing Particular Average losses, or 
 for defraying the ordinary expenses of navigation, the 
 loss arising from their sale must be made good by the 
 ship-owner alone, who must, in such case, pay the mer- 
 chant the price which the goods would have fetched at 
 their place of destination, deducting therefrom the freight 
 which would have been due for their conveyance, — 
 
 2. Where, on the other hand, they are sold for the pur- 
 pose of defraying expenses or repairing losses, which are 
 themselves of the nature of General Average, the loss 
 arising from their sale gives a claim to a General Ave- 
 rage Contribution ; the goods sold are considered as tho' 
 they had been jettisoned, and are made good upon pre- 
 cisely the same principles of Contribution." 
 
 Loss or damage to cargo, hy pouring water down to ex- 
 tinguish fire. 
 
 United States. — General Average. Nelson v Bel- 
 mont, 5 Duer, 310, 323. Lee v Grinnell, 5 Duer, 400. 
 
LOSS OB DAMAGE TO CARGO. 85 
 
 Nimick v Holmes, 25, Penn State, 366 
 
 In England. — Whatever damage the cargo may sus- 
 tain by that course must be borne by the cargo, and the 
 ship must bear by itself all injury done to it by the 
 spoiling of furniture, stores, provisions, charts, books, 
 instruments &c. 
 
 The practice in France is against the allowance of the 
 damage in General Average. 
 
 In Holland, Belgium, Sweden and Norway, this dam- 
 age is admitted in General Average. 
 
 Loss or damage to cargo, hy scuttling a ship to extin- 
 guish afire. 
 
 In the United States, this damage is made good by 
 General Average Contribution. Nelson v Belmont, 5 
 Duer, 310. Lee v Grinnell, 5 Duer, 400. But in Enq- 
 LAND and France it is not allowed. 
 
 Loss of Interest on capital hy detention at port of re- 
 fuge. 
 
 So far as we are able to learn, this is a loss which is 
 nowhere allowed in General Average. 
 
86 GENEBAL" AyjRAGE. 
 
 EXPEI^SES. ^- 
 
 Port of Refuge Expenses — Expenses of entering or 
 quitting a Port of Distress, to refit, and of discharg- 
 ing and reloading Cargo there. 
 
 United States, — When in consequence of stress of 
 weather, the vessel has sprung a leak, or has suflfered 
 other damage in the course of the voyage, whether of a 
 General or Particular Average nature, or the stowage 
 of the cargo damaged by some unavoidable accident, or 
 some other disaster has occurred and it become necessary 
 to the safety of ship and cargo to deviate from the course 
 of the voyage, and put into an intermediate port to avoid 
 the impending peril, or to repair or refit the ship, in order 
 to be able to resume the voyage in safety ; the pilotage 
 and towage in and out ; the regular port-charges on en- 
 tering and clearing ; the cost of protest ; consular and 
 health officer's fees ; survey of the ship to determine her 
 condition on arrival ; postage and telegraphic despatch- 
 es, when not repairing ; and the hire of extra men to 
 pump the ship while the cargo is on board, are allowed 
 in General Average. 
 
 If it be necessary to discharge the cargo, whether for 
 the common safety or to repair the vessel, the expenses 
 of unloading and reloading, including the wharfage or 
 dockage of the ship or goods ; the conveyance of the 
 goods to a warehouse, and the storage and damage to the 
 goods caused by the unloading ; the expenses of cooper- 
 ing casks and mending packages injured by the dis- 
 charge and reloading ; the agency commission for the 
 
EXPENSES. 87 
 
 custody and reshipment of cargo; and interest on 
 money advanced for the common benefit ; are General 
 Average. 
 
 The board of underwriters of New York, believing that 
 claims for contribution in General Average for deficiency, 
 loss or damage to cargo, supposed or assumed to have 
 been occasioned by discharge and reloading, or other- 
 wise, have of late been frequently admitted into adjust- 
 ments (as well as other claims) without positive or 
 satisfactory proofs thereof And that such practice is, 
 in many instances, very unjust to underwriters, ship- 
 owners, owners of cargo, and all uninsured parties, 
 including those who, having some basis for them, make 
 no such claims — appointed a committee, composed of 
 members of the board, and referred the subject of claims 
 on cargo allowed in General Average, to the said com- 
 mittee for their consideration. The result of the investi- 
 gation and their report thereon, was the adoption of cer- 
 tain resolutions on the fifth December, 1866, and the 
 distribution of the same in the shape of a circular, among 
 the underwriters and adjusters of Averages in the United 
 States, and elsewhere. The resolutions adopted are as 
 follows : " The underwriters of this city, will insist that 
 claims and sums allowed in General Average, shall be 
 verified, and that no claims for loss, damage or defi- 
 ciency of cargo, shall be allowed in General Average 
 adjustments, unless proved by a sworn report of survey, 
 held by competent and disinterested persons, at or near 
 the time and place where such loss, damage or deficien- 
 cy occurred, setting forth the cause and extent thereof; 
 unless, in the absence of such evidence, such claims 
 
88 . GENERAL AVEKAGE. 
 
 shall be approved by the board of underwriters' ' Com- 
 mittee on Losses and Averages,' and supported by other 
 proofs." 
 
 The expense of Wages and Provisions of the master 
 and mariners, from the time the vessel bears away from 
 the course of her voyage to go into the port of refuge, to 
 the time the ship is again ready for sea, is General Ave- 
 rage. The wages allowed are the wages agreed upon 
 between the ship-owner and the master and mariners. 
 Many large ships are sailed by the master at a nominal 
 rate of wages and primage, or a percentage on the freight. 
 The rule adopted by adjusters, in such cases, is to allow 
 what the ordinary wages per month of a competent mas- 
 ter would be for a vessel of a similar kind and class. 
 The rule as to allowance for provisions is as follows : In 
 New York, the master one dollar a day, the mates fifty 
 cents each, the seamen each thirty cents ; in Boston, the 
 master one dollar, the mates fifty cents, the seamen twen- 
 ty-five ; in San Francisco, the master two dollars a day, 
 the mates one dollar and a half, and the seamen thirty 
 cents. 
 
 Commissions on disbursements, loss on exchange, bot- 
 tomry premium, cost of bond, loss on sound cargo sold to 
 pay expenses, are General or Particular Average, accord- 
 ing to the nature of the case, and are apportioned in an 
 adjustment of Average to each interest benefitted. If 
 there be a profit on the sale of cargo, it belongs to the 
 owner of the cargo. 
 
 When the cargo is discharged and in a place of safety, 
 the expenses of repairing the ship, and the incidental 
 expenses, such as surveys on the ship, discharging and 
 
EXPENSES. 89 
 
 reloading ballast, towing her to the place of repairs and 
 back to the place of reloading, dockage &c., are a Par- 
 ticular Average on the ship, unless the damage to be 
 repaired is itself a General Average ; the cost of repairs 
 follows the nature of the damage. 
 
 If, on a regular survey, the vessel be condemned and 
 the voyage abandoned, the General Charges thencefor- 
 ward cease, and the subsequent charges become special 
 to the vessel or cargo, for whose benefit they were res- 
 pectively incurred. 
 
 England. — In England the following port of refuge 
 expenses are admitted in General Average : the pilotage 
 or towage in, harbor and light dues, quarantine and 
 health dues, use of warps and tackle, getting the vessel 
 into harbor and mooring her there, wharfage, custom- 
 house entries, telegraphic despatches, the first survey 
 held to determine the condition of the vessel and what 
 ought to be done, the expenses of discharging the vessel 
 and putting the cargo in a warehouse, when such dis- 
 charge is necessary to repair the vessel, to cool the cargo 
 or restow it when shifted by peril of the sea, the expense 
 of noting and drawing the master's protest. 
 
 The cargo being separated from the vessel and put in 
 a place of safety, the General Average expenses cease, 
 and the rent of the warehouse, insurance on the cargo 
 against fire, surveys upon the cargo, drying, repacking 
 and coopering, are a Particular Average on the goods. 
 
 The expenses of conveying back the goods from the 
 warehouse to the shipping place, the wharfage and quay 
 dues, the lighterage on board, the labor of reloading, 
 stevedores, restoring metage at reshipment, use of screws 
 
90 GENERAL AVEEAGE. 
 
 for cotton cargoes, pilotage out of harbor, boats and men 
 assisting towage out, are Particular Average to the 
 freight. 
 
 The ship is charged with the expenses of surveys 
 held subsequent to the first and its repairs, except the 
 repairs of damages; which are themselves a General Ave- 
 rage. 
 
 The Agent's commissions on money advanced, bot- 
 tomry premium, and loss on the sale of cargo to pay 
 expenses, are applied as a percentage to all the columns 
 of disbursements, i. e. are either Particular or General 
 Average, according to the nature of the loss or expenses. 
 The Agent's travelling and other small expenses usually 
 belong to General Average. He very commonly makes 
 a charge for his trouble and attendance, his general su- 
 pervision of the business, correspondence &c. ; This is 
 most frequently charged to General Average in one 
 sum. Hopkins, 45-47; Baily. 179-80; Report of 
 Hon. Wm. Marvin, 33. 
 
 The wages and provisions of the crew are not regarded 
 as an Average, either General or Particular, but are to 
 be paid by the ship-owner as an ordinary expense of 
 navigation. Mr. Hopkins (p. 52) says : "We reject this 
 expense on the ground that an owner is bound by law 
 to keep his vessel manned until she has completed her 
 voyage, and that therefore he has not the option of dis- 
 missing the crew. All that can be said is that the pro- 
 traction of the voyage is an unfortunate circumstance for 
 the owner, but that he has not a remedy ; that protrac- 
 tion may be equally unfortunate for the proprietor of the 
 
EXPENSES. 91 
 
 cargo, whose goods, if perishable, may be much depreci- 
 ated by the delay; and they may lose their market 
 from the same cause. Foreigners and some of our own 
 colonists do not see the subject in the same light, how- 
 ever, and claim the wages and victuals in their adjust- 
 ments. Many of our own insurance clubs have followed 
 their example, and permit by their rules the wages of 
 ships under detention to be allowed in the Average, and 
 they even arrange a scale per diem to remunerate the 
 owner whose ship is detained. Although a vessel be 
 unfortunately detained in some port all the winter, ice- 
 bound, the owner has no remedy against the underwrit- 
 ers, and still less claim for contribution from the co-ad- 
 venturers, since there is no voluntary sacrifice on his part, 
 but an inevitable necessity. The only question that can 
 arise in the case is, whether this position be altered by a 
 ship being ice-bound in a port where she has been obliged 
 to put in by circumstances which make her expenses 
 going there. General Average. The answer is in the 
 negative ; for neither by our law or custom does deten- 
 tion, with the one or two exceptions I have mentioned, 
 give any claim by which the owner can shift the bur- 
 den on to others." 
 
 Lord Tenterden suggests, that whenever a vessel puts 
 away for the purpose of repairing damages which are 
 themselves the subject of General Average, the wages 
 and provisions should be allowed as an accessory. Ah- 
 hott on Shipping, chap. 10, sec. 5, 497. 
 
 Marshall, an approved English authority, writing in 
 1802, cites from Beawes the following rule : " Where a 
 
92 GENERAL AVEKAGB. 
 
 ship is forced to enter a port to repair the damages she 
 has suffered in a storm, being unable to continue her voy- 
 age without apparent risk of being lost, the wages and 
 provisions for the crew from the day it was resolved to 
 seek a port to refit the vessel, to the day of her de- 
 parture from thence, shall be brought into General Ave- 
 rage. 
 
 This rule thus approved in England, is now and always 
 has been, the foundation of the American practice ; 
 English courts of law have invaded it, and the " custom 
 at Lloyd's," as we have seen, is to ignore it. 
 
 France. — M. Cauvet, in his Traite sur les Assurances 
 Maritimes, states the practice in Prance as follows: — 
 " If, in order to avoid capture, a tempest, sinking or 
 other peril to ship and cargo, the master, after due con- 
 sultation with the crew, deviate from the course of the 
 voyage and go into a port of refuge for the common 
 safety of ship and cargo, the port dues, pilotage and 
 other expenses of entering and leaving the port, the ex- 
 pense of unloading the cargo when a leak in the ship 
 endangers the cargo, and such unloading be necessary to 
 stop the leak, and the leak be stopped and the voyage 
 resumed, including damage or deterioration to the cargo 
 caused by the unloading, and the expense of storing and 
 reloading the cargo, are General Average. If the leak be 
 insufficient to endanger the cargo, the unloading should 
 be deferred ; and if the captain unload the cargo in such 
 case, he should pay the expense, because he might have 
 avoided it. In general, however, the recommendation of 
 surveyors or experts, properly appointed, will protect the 
 
EXPENSES. 93 
 
 captain. The expense of repairing the ship is General 
 or Particular Average according as the damage or injury- 
 repaired is General or Particular. The Wages and Pro- 
 visions of the crew during the detention are, in practice, 
 regarded as Particular Average, whatever may be the 
 cause of putting into port, or whether the ship be freigh- 
 ted by the voyage or by the month. The expense of 
 going into port on account of a want of provisions, and 
 the expense of coming out, is a Particular Average to the 
 ship, such want being the master's fault, or the effect of 
 a fortuitous accident occurring to him in the fulfilment 
 of his contract to carry. The cost of surveys of ship or 
 cargo is apportioned or divided according to the char- 
 acter of the subject surveyed or the damage. The cost 
 of surveys of Particular Average to the ship is Parti- 
 cular, of General Average, General, being accessorial to 
 tho ndturc of the original cause of the survey. So also 
 of the cargo, and of the orders of consuls and copies of 
 them, and of the report of surveyors. The cost of the 
 master's protest is General Average when the expense of 
 going into the port is so, or when it verifies damages or 
 expenditures classified as General Average. Interest, 
 commissions on money advanced, the premium on bor- 
 rowing money on bottomry or respondentia and the 
 cost of borrowing are added to the principal of each 
 Average in the proportion that it bears to the total expen- 
 diture." 
 
 " Damage to or loss of goods in the storehouse in a 
 port of refuge by water or by fire is not General Ave- 
 rage, but falls on the proprietor. In like manner, dam- 
 
94 GENERAL AVERAGE. 
 
 age to a ship by accidental stranding in entering a port 
 of refuge is not General Average." 
 
 "Freight pd-id to another vessel for carrying on apart 
 of the cargo from the port of refuge which the ship is 
 unable to re-stow or carry, is General Average." 
 
 " When a ship is condemned in a port of refuge as 
 incapable or unworthy of repairs, expenses are incurred 
 for keeping and selling the ship, and for unloading, stor- 
 ing and reloading the cargo upon another vessel. These 
 expenses are not General Average, but are at the charge 
 of each proprietor of the thing which necessitates them. 
 They are ordinarily paid by a loan on a respondentia 
 bond upon the ca,rgo, or by the proceeds of the sale of 
 the ship or of the damaged merchandise. Hence the 
 necessity of an adjustment of the account between him 
 who has paid the loan and taken up the bond, or whose 
 ship or goods have been sold. This account is adjusted 
 by a classification of the Averages and expenses between 
 the ship and the cargo according to the causes which 
 produced them. In like manner, in a case of shipwreck, 
 there are. expenses incurred on account of the ship and 
 on account of the cargo. These are adjusted in the same 
 manner as in a case of the condemnation of the ship. 
 The adjustment becomes complicated when the cargo 
 comprehends difierent kinds of goods belonging to differ- 
 ent proprietors. A condition .of things then arises requir- 
 ing the recognition of several classes of expenses. In 
 the first class are the General expenses to be apportioned 
 between the ship and cargo; in the second, expenses 
 concerning the cargo as a totality ; and then the expen- 
 ses incurred on account of each species of merchandise. 
 
EXPENSES. 95 
 
 These classes of expenses established, it is necessary to 
 apportion between the ship and cargo the general 
 expenses, and between the different species of goods the 
 expenses relating to the cargo. When the adjuster can, 
 he determines what expenses have been incurred on 
 account of the ship, and what on account of the cargo. 
 But this, in many instances, is extremely difficult, on 
 account of a want of definite information ; as, for in- 
 stance, where money is expended for paying laborers 
 employed in saving and transporting ship's materials 
 and cargo indiscriminately, expenses of correspondence 
 &c. In such cases the expense is apportioned according 
 to the values saved at the place of saving; and if this 
 cannot be ascertained, then at the place of destination, 
 deducting the freight and landing charges and a certain 
 profit, in order to approximate as near as possible to the 
 values at the port of refuge or place of shipwreck and 
 saving. The expenses incurred by the cargo as a totality 
 are divided between the different kind of goods, partly 
 in proportion to volume and weight, and partly in pro- 
 portion to their respective values. T]je cost of labor, 
 cartage &c., is divided upon the goods saved according 
 to volume and weight, and the commissions &c. paid 
 according to values." 
 
 Spain. — The Spanish law proceeds on the principle 
 that the Jirst or real cause of expenses is responsible for 
 all the consequences. 
 
 According to the Spanish Commercial code, if a ship 
 put into an intermediate port, owing to a leak proceed- 
 ing from inherent defect, the owner is chargeable with 
 every expense until she have resumed her voyage. If 
 
96 GENERAL AVERAGE. 
 
 she go there from a necessity which we call Particular 
 Average, the underwriters on ship pay the whole expen- 
 ses. If the forced deviation arise from the state of the 
 cargo, on the cargo ail the expenses are thrown. If the 
 cause of putting into port be one in itself of General 
 Average, then all the disbursements and the repairs are 
 claimable as General Average. 
 
 Belgium. — The Commercial Code of Belgium is the 
 same as that of France. Antwerp, however, has built 
 up a custom of her own, which differs in some particu- 
 lars from any which have prevailed in France. It is 
 more like the custom in England, but not the same. 
 
 By the custom of Antwerp, the community of interest 
 between the ship and cargo is considered as interrupted 
 from the moment the cargo (if it be necessary to unload 
 it) is separated from the ship, or from lighters in order to 
 be landed. This community of interest is restored from 
 the moment the cargo is put on board the original ship, 
 or on board lighters to be transported there. Conse- 
 quently, the expenses of going into port, of coming out, 
 the hire of laborers employed to pump the ship as long 
 as the cargo is on board, judicial expenses, fees of con- 
 suls and notaries and the commissions of agency, are Ge- 
 neral Average. Commission s for the advance of funds, 
 bottomry premium, interest and loss upon goods sold to 
 procure funds, are divided pro rata, between the differ- 
 ent classes of Average according to their respective am- 
 ounts. 
 
 The cargo is charged with the expenses of landing and 
 conveying to the warehouse, the storage, surveys on it, 
 and the expenses of putting the cargo on board again, 
 
EXPENSES. 97 
 
 or on board lighters to be carried to the ship. 
 
 The Wages and Provisions of the crew are rejected 
 from General Average. If the freight be insured, they 
 are considered as a Particular Average on the freight, 
 and are paid by the underwriters on freight, as in France. 
 It is in the case only of a landing of the entire cargo that 
 the expenses of landing, storing and reshipping the cargo 
 are rejected from General Average. When there is a 
 landing of part only, as in order to take out a broken 
 mast and put in a new one, the expenses of the landing, 
 storing and reshipping such part are allowed in General 
 Average. Antwerp Customs, hy Messrs. Engles and 
 Van Pebourgh. Judge Marvin^ Report, 42. 
 
 Holland. — The code of Holland declares, that the pi- 
 lotage or other expenses of entering and departing from 
 a port of refuge, the expenses of unloading the vessel, 
 the hire of warehouses and depots in which the merchan- 
 dise is deposited which cannot remain in the vessel dur- 
 ing the refitting, the wages and food of the crew during 
 the time the vessel is constrained to remain in port, the 
 marine premium on money borrowed on bottomry to pay 
 General Average expenses, or the premium to insure such 
 expenses, the loss, by a sale, of part of the cargo to pay 
 General Average expenses, and the expenses of adjust- 
 ing or stating the General Averages, are all General 
 Average. 
 
 Germany. — The new code lately adopted by the Ger- 
 man States and the free towns of Lubeck, Hamburg and 
 Bremen, reads as follows : 
 
 " If the vessel have put into a port of refuge in order to 
 
98 GENEEAL AVERAGE. 
 
 avoid a common danger threatening the ship and cargo, 
 in case the voyage were prosecuted, more particularly if 
 the putting into port he in order to repair dainage done to 
 the ship during the voyage." 
 
 "To General Average helong, in this case, the expenses 
 of entering and leaving, the expenses to the ship itself 
 during the stay, the wages and provisions of the crew 
 during the stay, also, the expense of lodging the crew on 
 shore for and as long as they could not remain on board; 
 further, if the cargo must he dischafged as a consequence 
 of the cause which led to the ship putting into a port of 
 refuge, the expense ol discharging and unshipping, and 
 the expense of warehousing the cargo on shore up to the 
 time when it might have heen put on board again. The 
 several charges for detention are taken only for the time 
 the cause of putting into the port of refuge remains in 
 force. If the cause be found in a necessary repair 
 of the ship, the charges for detention are only taken for 
 as long a time as that in which the repairs might have 
 been completed." 
 
 Sweden. — The Swedish Maritime Code of Feb'ry. 23, 
 1865, declares the following to be General Average : 
 
 'T^e Expenses. — ^When in order to avoid a danger 
 which, during the continuation of the voyage, threatens 
 equally the vessel and the cargo, the vessel enters a port 
 of refuge. In these expenses are enumerated, the cost of 
 engaging outside assistance for bringing the vessel into 
 and out of such port of refuge, pilotage, light house, har- 
 bor or any other dues; damages done to the vessel, in 
 order to discharge the cargo; expenses for discharging 
 
EXPENSES. 99 
 
 cargo; the storing, reshipping and stowing of the same, 
 when the goods must be discharged in order to bring the 
 vessel into port, or in order to repair the same ; the sup- 
 port of the crew while the vessel remains in such port of 
 refuge." 
 
 " The expense of the stay of the vessel is computed 
 only for the time the cause of the vessel's entering a 
 port of refuge still exists. If the said cause consist in 
 the necessity of repairing the vessel, then the expenses 
 are computed only for the time in which the necessary 
 repairs could have been completed. The cost of repair- 
 ing the vessel is then allowed in General Average only 
 when the damage itself is such. When the voyage ter- 
 minates in the port of refuge, then are considered as Gren- 
 "eral Average, only the expenses of bringing the vessel 
 into the port, and the support of the crew until it became 
 settled that the voyage should terminate in said port of 
 refuge." 
 
 " Expense and loss while in such port of refuge in 
 obtaining funds necessary to be expended for the mutual 
 benefit by vessel, freight and cargo, or in order to pay 
 such expenses as will be included in General Average, 
 as, for instance, loss occasioned by reason of the difierence 
 in price obtained for a part of the cargo which must be 
 sold in order to obtain funds. The premium for bottom- 
 ry bond, when such must be given, in order to procure 
 the money necessary to be expended on mutual account. 
 Expenses of issuing bills of exchange, insurance and 
 lawful interest, when the means are obtained in any 
 other way." 
 
 NoEWAT. — The Norwegian Maritime Code of March 
 
100 GENERAL AVERAGE. 
 
 24, 1860, declares, that in the expenses in a port of refuge 
 included as Greneral Average are : 
 
 a. Pilotage, harbor and other public dues that accrue 
 to the vessel or cargo, but not the duty on goods that are 
 sold in a port of refuge or to remain there. 
 
 h. Expense in discharging, virarehousing and reship- 
 ping the cargo, but not the money paid laborers for mov- 
 ing the cargo w^hile in the storehouse, or any other 
 arrangement for the preservation of the same, nor the 
 premium for insuring against fire while the cargo is on 
 storage. 
 
 c. Commissions paid to agents, so far as they are not 
 considered as including charges for making arrange- 
 ments for, or superintending the preservation of the 
 cargo. 
 
 d. Wages and support of master and crew, which are 
 calculated for the time diuring which the vessel necessa- 
 rily must remain, in order to have the damage repaired. 
 
 If the preservation of cargo made it necessary to seek 
 a port of refuge, then the expenses mentioned in a. and 
 d. are considered as General Average, but not those men- 
 tioned in h. and c. 
 
 If the vessel, after entering a port of refuge, be found 
 unfit to continue the voyage, or if the voyage for any 
 other cause terminate in such port of refuge, then the 
 expenses mentioned in articles h. and c. cannot be includ- 
 ed in the General Average ; the expenses mentioned 
 under letter a. only so far as concerns the entering of the 
 vessel, and the expenses under letter d. only for the time 
 during which the vessel was obliged to remain, before it 
 
EXPENSES. 101 
 
 was decided that the voyage should terminate there. 
 
 The expenses are not taken into General Average when 
 the vessel enters a port of refuge in order to escape from 
 an enemy, or by reason of contrary winds, ice, want of 
 provisions or other similar cause. 
 
 Denmark. — Expenses for ship and cargo, in conse- 
 quence of an intermediate detention at a port of refuge, 
 say harbor dues, labor in discharging and reloading car- 
 go, warehouse rent for the cargo, ordinary wages and pro- 
 visions for the captain and crew, and pilotage are allow- 
 ed in General Average. Judge Marvin^s Rep. 43. 
 
 Cuba. — ^As General Average are liquidated all ex- 
 penses of in and outward pilotage, port dues, expenses of 
 discharging, storing and reshipping the cargo, and all 
 other extraordinary disbursements, including wages and 
 maintenance of the crew during the term of the neces- 
 sary detention in an intermediate port. 
 
 If the cause of the entrance into port be a leak or other 
 accidental damage to the vessel, disabling her to con- 
 tinue the voyage, the expenses of repairs and refitting 
 are distributed in the following proportion ; two thirds 
 as Simple or Particular Average, i. e., for account of 
 insurers of the vessel, and the other third to be borne by 
 the owner, as a compensation for the apparel worn out 
 and replaced by other new ones, which have improved 
 the condition of the vessel in every respect. 
 
 If the entrance into port to repair damages be caused 
 by the consequent and deliberate acts for the general be- 
 nefit, such as cutting away a mast in a tempest, losing 
 rigging and sails, or throwing overboard part of the cargo 
 
102 General average. 
 
 or ship's apparel to relieve her, all the expenses in port 
 are liquidated as General Average ; of those for refitting 
 the vessel and replacing apparel sacrificed, two thirds 
 are charged to the General Average, leaving the remain- 
 ing third to be borne by the vessel's owner for the same 
 considerations explained in the foregoing case. ' The por- 
 tions of the cargo thrown overboard, at their invoice cost, 
 with, moreover, the freight of the same due to the vessel, 
 are entirely charged to General Average. Regarding 
 anchors and chains, it is not customary in Cuba to make 
 deductions for wear, but their entire value is indemnifi- 
 ed. Judge MarvirHs R. 48. 
 
 Disbursements made for the common benefit, whether 
 they must be reimbursed in General Average, when 
 ship and cargo wholly perish before arriving at the 
 port of destination. 
 
 United States. — The rule is well established, that dis- 
 bursements made for the common benefit, must be re-im- 
 bursed in General Average, whether the ship and cargo 
 be eventually saved or not. Spafford v. Dodge, 14 
 Mass., 66. 
 
 In considering questions of this nature, we recognise 
 the existence of two classes of General Average, viz : — 
 Sacrifice for the general safety, and Expenditures for the 
 common benefit, the former termed by some writers Res- 
 titution, the latter Recompense — Whenever a claim for 
 res^»YMfiora of property sacrificed (e. g. jettisoned), and it 
 
EXPENSES. 103 
 
 turns out that nothing is saved from the adventure, be- 
 cause after perils destroy the value at risk, no Contribu- 
 tion is due, the legal presumption being that the thing 
 sacrificed, if it had remained on board would have per- 
 ished. 
 
 But the rule in respect to Expenditures is different. 
 If money be advanced to meet expenses at a port of neces- 
 sity by the ship owner (unless raised on bottomry), such 
 advance establishes a valid claim against the proprie- 
 tors of goods at risk, which claim survives the subse- 
 quent loss of the vessel and cargo, and a personal action 
 may be maintained against the said proprietors therefor. 
 If the sliip and cargo perish utterly, an adjustment 
 must be made with reference to the values existing at 
 the time the expenditures were made. Douglass y. 
 Moody, 9 Mass. B. 548. 
 
 England. — Mr. Arnould (921) thus states the law and 
 practice in England : " When an expenditure is incur- 
 red for the general benefit, the money by which it is dis- 
 charged is either supplied by the ship-owner out of his 
 own funds, or raised by a loan from some third party ; 
 in either casff it is obvious that he has a personal and ab- 
 solute claim against all the parties interested in the 
 adventure, in respect of the money thus laid out for their 
 benefit, and that from the moment the advance has been 
 made, it is equally obvious, on the true principle of adjust- 
 ment, that they are bound in equity to liquidate this 
 claim in full, whether any part of the property, for whose 
 benefit the outlay was made, be ultimately saved or not. 
 Were this not so, the object to be had in view in every 
 
104 GENERAL AVERAGE. 
 
 adjustment of Greneral Average, would not, under all 
 circumstances, be attained, for in those cases where the 
 ship and goods, after being relieved by the expenditure, 
 wholly perish before arriving at the port of destination, 
 the party making the advance would, if no contribution 
 were to be made, be worse off than the parties for whose 
 benefit it was incurred, as he would not only have lost, 
 like the rest, all his share in the adventure, but moreover 
 would remain burdened with a debt contracted on their 
 account, or be the loser of a sum of money laid out for 
 their safety. 
 
 Hence the long established rule is, that disbursements 
 Jor the general benefit must be fully reimbursed in Gene- 
 ral Average, whether the ship and cargo be eventually 
 saved or not" 
 
 " Where, however, some integral part of the adventure 
 itself has been sacrificed for the safety of the rest, as in 
 cases of jettison and other sacrifices of like nature, the 
 rule of adjustment is different. 
 
 The principle, indeed, is still the same, viz ; that the 
 owner of the property sacrificed should be placed in the 
 same condition, by the result of the adjustment, in which 
 he would have stood if, not his property, but that of some 
 other party to the adventure, had been sacrificed ; he 
 must not be worse off than if his goods, instead of being 
 jettisoned, had remained on board. 
 
 The practical rule adopted to attain this end, is as fol- 
 lows : The property sacrificed for the general benefit is 
 regarded as though it had never been lost, but actually 
 constituted a portion of the whole mass of property upon 
 
EXPENSES. 105 
 
 which the Contribution is assessed, at the time the ad- 
 justment is made ; its supposed value, like the actual 
 value of the property saved, is fixed at a certain amount, 
 and in proportion to that amount, it takes its full share 
 with the rest of the adventure, for whose benefit it was 
 sacrificed, in contributing to the loss thereby incurred. 
 
 Thus, to take a very simple instance, suppose proper- 
 ty, the value of which, if saved, would have been 100/., 
 to have been sacrificed for property the value of which, 
 as saved, is 900/. The whole sum upon which the Con- 
 tribution is to be levied will be the aggregate value of 
 the property sacrificed and that saved, viz : 1000/ ; the 
 amount to be made good being 100/., or the tenth part 
 of 1000/. ; the property saved contributes a tenth, or 90/. 
 and the property sacrificed also a tenth, or 10/., making 
 together the whole amount lost 100/. 
 
 It is clear that this is the only equitable way in 
 which this kind of loss can be adjusted, for if the prop- 
 erty sacrificed did not contribute like the rest, the owner 
 of such property, receiving its total value, would be bet- 
 ter ofi" than the rest of the co-adventurers, and would not 
 be in the same condition in which he would have been, 
 if their property had been sacrificed instead of his. 
 
 It is also clear, that where, after the sacrifice, the whole 
 of the rest of the adventure utterly perishes, no Contri- 
 bution can be due, for in such case, even if the property 
 had not been sacrificed, there is no reason to suppose 
 that it would not have perished like the rest ; its owner 
 is in no worse position than he would have been in had 
 
106 GENERAL AVERAGE. 
 
 it been made by some one else on board, and not by him- 
 self. The condition of all the co-adventurers is precisely 
 equal; all is lost; there is nothing to contribute from, 
 and nothing to contribute for. Hence, the rule with 
 regard to sacrifices for the general benefit, is, that they 
 are not contributed for, where nothing is saved." 
 
 In France and every other country, we believe the rule 
 is the same as in the United States and England, viz : 
 that disbursements paid for the common benefit, must be 
 reimbursed in General Average, though the ship and 
 cargo wholly perish. 
 
 Where, to m,eet disbursements for the common benefit, 
 money has been raised upon bottomry and therefore 
 contingent upon the ultimate safety of the vessel. 
 
 It is EVERYWHERE admitted, that, in case of funds to 
 meet expenditures being raised merely by hypotheca- 
 tion, the claim for Contribution for the expenditures 
 becomes subject to the same conditions as a claim for 
 Contribution for jettison ; it depends upon the property's 
 being finally saved. 
 
 One reason for this practice is, that the party whose 
 property has been hjrpothecated has lost nothing since 
 the bond of hypothecation has not been enforced. Ano- 
 ther reason is, that the lender in consideration of the 
 marine interest, takes the risk of the arrival of the pro- 
 perty to the amount lent, for which all the parties 
 
EXPENSES. 107 
 
 concerned engaged to pay him a premium, in case of the 
 arrival of the property, since, in that case they must con- 
 trihute the amount of the marine interest. But, upon 
 these reasons, if a part of the ship or goods hypothecated 
 he finally saved, and go in part satisfaction of the 
 hond, the owner of what is saved would he entitled to 
 Contrihution for the amount saved, and thus appropri- 
 ated towards the discharge of the bond. 
 
 Expenses of delay at the termination of the adventure. 
 
 This is NOWHERE regarded as Greneral Average. A ship 
 being detained at Liverpool, her port of destination, 
 after the cargo was delivered, to repair damage sustained 
 before it was unloaded, Mr. Chief Justice Thompson, 
 of New York, said : " The expenses during the time the 
 vessel was detained at Liverpool cannot be brought into 
 General Average. They were not incurred for the bene- 
 fit of cargo or freight. The cargo had been delivered, 
 and the freight earned, before the expenses in question 
 w«re incurred." Dunham r. Commerciallns. Co. 11 
 Johns, 315. 
 
 Expenses of delay when frozen up in a port of refuge. 
 
 United States. — Delay by the vessel's being frozen up 
 in the regular course of the voyage is not a case of Gene- 
 
108 GENERAL AVERAGE. 
 
 ral Average. But if a vessel he frozen up in a port where 
 the master put in voluntarily to repair, the expenses of 
 detention during the time of her being frozen up are a 
 part of the General Average. 
 
 England.— Mr. Arnould{p. 918) says : " Where a ship, 
 has, for the general safety, put into a port of distress to 
 repair, and while there is frozen up for the winter, the 
 increased expense of wages and provisions occasioned by 
 this delay, is allowed to be General Average in America; 
 hut it is apprehendied that it would be so considered 
 in England only when the loss, which the ship went in 
 toTepair, was itself of the nature of General Average." 
 
 Mr. Hopkins (53) does not agree with Mr. Arnould 
 that if the circumstances which made the vessel to enter 
 a port of refuge were General Average, the expense of 
 her being ice-bound in that port would be General Ave- 
 rage. He says, this is not General Average, for, neither 
 by English law or custom, does detention give any 
 claim by which the owner can shift his burden on to 
 others. 
 
 Mr. Beneche proposes the same exception as Mr. Arn- 
 ould, viz : that " when a vessel is long detained by 
 natural obstacles in a port which she entered in distress, 
 it then appears that the question whether her crew's 
 wages are to be General Average, can only depend on 
 the cause of her entering the port being the subject 
 either of a General or Particular Average." 
 
 Mr. Hopkins dissents from this. He says "the excep- 
 tion which Mr. Benecke proposes seems to me a distinc- 
 tion without a diflFerence." 
 
EXPENSES. ^ 109 
 
 Expense of being frozen up in the ordinary course of 
 the voyage. 
 
 This is not General Average anywhere. It is a delay 
 sustained in the ordinary course of events, and not in 
 consequence of any misfortune. The owner of the goods 
 suffers from it in being deprived of his capital, perhaps, 
 also, by the deterioration of his goods, and the fall of 
 the market ; and the ship-owner likewise suffers by the 
 wear and tear of the ship, and the augmented expenses 
 of the voyage. 
 
 Mr. Arnould (p. 918) says : " If a ship be frozen up 
 in any port at which she may happen to be, in the ordi- 
 nary course of the voyage, or when, being unable to enter 
 a river or harbor on account of floating ice, she is com- 
 pelled to put into a harbor and winter there, the expense 
 of paying and provisioning the crew during this deten- 
 tion, gives no claim to General Average Contribution." 
 
 Expense of quarantine on usual course of the voyage, 
 whether of a usual or unusual length of time. 
 
 The regular quarantine charges, invariably attached 
 to certain voyages, cannot be considered as General Av- 
 erage, since the captain, in fixing his freight, must 
 calculate upon them. Neither can the charges arising 
 from quarantine instituted under particular emergencies 
 be viewed as voluntary sacrifices for the benefit of the 
 whole. 
 
110 GENERAL AVERAGE.. 
 
 Goods or money paid as ransom to Pirates or to a pub- 
 lic enemy for the whole interest. 
 
 United States. — If a ransom be paid in good faith, for 
 the benefit of all concerned, to a captor, whether pirati- 
 cal or belligerent, it is clearly a case of General Average. 
 Douglas V. Moody, 9 Mass., 548 ; Sanson v. Ball, 4 
 Ball., 459. 
 
 Mx. Phillips in his Treatise on Insurance, vol. 2, §1336, 
 says : "It vi^as formerly the practice to ransom vessels 
 captured by the public enemy, and to give hostages as 
 security for the payment of the ransom, in which case 
 the amount of the ransom, as well as the expenses of the 
 hostage during his detention, were settled by General 
 Contribution. {Emer. tome 1, p. 474. 629. 630 ; Lopez 
 V. Winter, Postlethw, Diet, tr't Average.) But more 
 recently, laws have been enacted prohibiting composi- 
 tions with a public enem,y. (22 Geo. Ill, c. 35 ; 35 Geo. 
 Ill, c. 66, s. 37-39), and such compositions have been 
 considered illegal, though not prohibited by specific 
 laws." For this last proposition no authority is cited by 
 the learned author, and Mr. Parsons (Mar. law, p. 299, 
 vol. 2) says he is " inclined to doubt whether it be cor- 
 rect on principle or on authority." Every writer on in- 
 ternational law speaks of ransom between belligerents 
 as undoubtedly unlawful, except when it is prohibited 
 by statute. Mr. Justice Story, in Maisonnaire-x. Keat- 
 ing, 2 Gallis. 325. 338, said : " The very law of war 
 prohibits all commercial intercourse, and suspends all 
 existing contracts, between enemies; and the case of ran- 
 
EXPENSES. Ill 
 
 soms is almost the only exception, which has been admit- 
 ted, from the general rule." Girard v. Ware, Pet. C. 
 C, 142, was a suit brought by the respondents, the libe- 
 lants in the court below, for wages. The ship of the 
 appellant, to which they belonged, was captured by the 
 British within the Capes of Delaware. She was after- 
 wards ransomed by the owner and brought to Philadel- 
 phia. Held, that the appellees were entitled to full wa- 
 ges, subject to a contribution on account of the ransom. 
 In Maisonnaire v. Keating, 2 Gallis, 325, it was argued 
 that a contract for a ransom made between a belligerent 
 and a neutral, immediately after capture, was illegal, 
 • because every ransom supposed a vested right in the cap- 
 tors, and that this did not exist in respect to neutrals, on 
 the ground that the captors had only a right to bring in 
 for adjudication, and that neutral property was liable 
 to condemnation only in case of delinquency, but it was 
 held, by Mr. Justice Story, that the right to take a ran- 
 som was not founded in a vested title, nor was it, strictly 
 speaking, a repurchase of the captured property, but a 
 relinquishment of all the interest and benefit, which 
 the captors might acquire or consummate in the property 
 by the regular adjudications of a prize tribunal, and 
 that therefore, the right to take a ransom existed from the 
 moment of the capture. See also, Welles v. Gray, 10 
 Mass., 42 ; Clarhson v. Phcenix Ins. Co., 9 Johns, 1. 
 
 If, therefore, a ransom be made for the benefit of all 
 concerned, it is clearly a case of General Average. 
 
 England. — If a merchant vessel be captured by a pub- 
 
112 GENERAL AVEEAGE. 
 
 lie enemy, it is not allowed, for national considerations, 
 to ransom her ; consequently, a sum of money paid for 
 the ransom of the whole co-adventure could not be recov- 
 ered from the several parties, as General Average in a 
 court of law or equity. But the same consideration does 
 not apply to a pirate or private marauder ; and, there- 
 fore, money given to the captor by the way of composi- 
 tion to effect the release of the vessel and her cargo, is 
 properly claimable by General Contribution. 
 
 The statute 45, George. III. prohibits ransom to an ene- 
 my ; and under this statute it has been held that if a mas- 
 ter ransom his ship and bring her home, the owner may 
 take her from him without repaying what he expended, 
 nor would the owner be obliged to repay money which 
 was borrowed for the purpose. Parsons v. Scott, 2 
 Taunt, 363. And the master would not be liable for the 
 debt to the lender. Webb v. Brooke, 3 Taunt, 6. 
 
 Mr. Arnould, (917) says : Ransom to an enemy is 
 now prohibited in this country by positive law ; but this 
 extends to enemies only, and not to pirates or other plun- 
 derers ; and it appears certain, that any money paid to 
 them by the captain, in order to induce them to liberate 
 the ship and the rest of the cargo, would be General 
 Average " 
 
 " It is quite clear, also, that a compromise between 
 neutrals and belligerents is lawful, and that the am- 
 ount paid by way of carrying it gives a claim to Contri- 
 bution." 
 
 Feance.— Things given voluntarily by wayof compo- 
 
EXPENSES. 113 
 
 sition for the ransom of vessel and cargo from captors or 
 from pirates, is General Average ; but when the enemy 
 or pirate chooses himself to take at his own discretion, 
 certain things, leaving the ship thereupon to depart, the 
 loss is a Particular Average, and falls on the proprie- 
 tor of the thing so taken. Traite sur les Assurances 
 Maritimes, hy M. Cauvet. 
 
 Holland, — The Dutch Commercial Code, sec. 699, 
 art. 1st, declares " Whatever is given to the enemy or 
 pirates for the surrender or the ransom of the vessel and 
 cargo, is General Average. In doubtful cases it shall be 
 considered that the ransom was for the vessel and the 
 cargo conjointly." 
 
 Germany. — When the vessel has been detained by ene- 
 mies or pirates, and is redeemed by payment. What is 
 paid for redemption, together with the maintenance and 
 ransom of the hostages, is General Average. General 
 German Mercantile Law, part 8, §708. 
 
 Sweden. — The Swedish Maritime . Code of 1865 de- 
 clares, among the principal compensations to be made 
 through General Average : " Damage done to the vessel 
 or goods during the defence against enemies, pirates or 
 corsairs, and the ransom paid for the redemption or 
 release of the ship and goods, or the ransom paid for any 
 one of the crew, who, while in the service of the vessel, 
 has been carried away by violence or given as hostage ; 
 also, the expenses for the support, medicines and rewards 
 for any one, who, during the combat was wounded ; for 
 the burial of one that may have been killed, and for a 
 
 donation to his widow and children. The last named 
 8 
 
114 GENERAL AVERAGE. 
 
 expense shall also be allowed for one who, while in the 
 service of the vessel in distress, through his work at 
 such time, is hurt or killed." 
 
 Antwerp. — Things given in composition, sums paid, 
 or ransom bond given to privateers or pirates in order to 
 ransom the ship and cargo, are considered as General 
 Average. But it is necessary that it should be proved 
 that the composition or ransom took place really for the 
 redemption of the ship and cargo conjointly ; for if the 
 privateer or pirate had in view the capture of the ship 
 alone, or the cargo alone, the redemption or re-purchase 
 would not be a General Average act ; but the ship alone, 
 or the merchandise alone, must support the consequen- 
 ces of the composition or redemption effected in its exclu- 
 sive interest. Customs of Antwerp, hy Edwdrd Van 
 Pehorgh, Despacheur, and Theodore C. Engles, Under- 
 writer of Antwerp, printed for the benefit of the Inter- 
 national Average Committee. 
 
 Expenses of delay and making claim for vessel and car- 
 go in case of capture. 
 
 United States. — General Average. Speyer v. New 
 York Ins. Co., 3 Johns, 88 ; Jumel v. Marine Ins. Co. 
 7 Johns, 412; Kingston r. Girard, 4 Dall., 274; Dorr 
 V. Union Ins. Co., 8 Mass. R. 494. 
 
 England.— Although by English custom the wages of 
 the master and crew are not generally chargeable in 
 General Average, there is one case in which they are 
 
EXPENSES. 115 
 
 rightly admitted, and that is, when a ship having been 
 captured or detained in a foreign port, it is necessary for 
 the master and some members of the crew to remain with 
 her for the purpose of making and substantiating a claim 
 for her restitution, together with the release of her cargo. 
 But if the ship be only detained under an embargo, the 
 wages are not allowed, and remain at the owner's charge. 
 Hopkins, 49. 
 
 France. — Expenses incurred in good faith to obtain 
 the restitution of a captured ship and cargo, when it is 
 obtained, and the wages and expenses of the crew who re- 
 main on board to guard and reclaim the same, are Gene- 
 ral Average. Emerigon, tom. 1, p. 631. Code de Com- 
 merce, 1, 2, tit. 11 a. 211 n. 6.' 
 
 Holland. — The expenses of claiming the ship and car- 
 go seized or captured, when both are claimed together 
 by the master, are General Average. Dutch Commer- 
 cial Code, sec. 699, art. 12. 
 
 Salvage in case of Capture. 
 
 The expense of the salvage allowed for recovering pro- 
 perty captured is contributed for in General Average, 
 where different parties and interests are concerned, upon 
 the principle on which that of claiming captured pro- 
 perty is entitled. Williams v. Suffolk Ins. Co., 3 Sum- 
 ner's R., 270 and 510 ; Heylyger v. N. Y. Firemen's 
 Ins. Co., 11 Johns, 85, 
 
116 GENEKAL AVERAGE. 
 
 Expense of remunerating Salvage services rendered for 
 the common safety, in case of shipwreck. 
 
 United States. — There are some losses or expenses 
 which are always settled in the same way as a General 
 Average loss, and are usually called by that name for 
 convenience, although they do not fall precisely within 
 any definition of it. Salvage is the principal one of 
 these. This word has two meanings. It is sometimes 
 used to indicate what is saved from a wreck ; but in this 
 sense we do not refer to it now. The word more fre- 
 quently means the amount that is paid to those who save 
 maritime property which is endangered or abandoned ; 
 and such persons are called, in maritime law, salvors. 
 This amount is usually decreed in admiralty in the form 
 of a percentage on all the property saved. Sometimes, 
 however, it is a gross sum given to the salvors. In either 
 case it is settled in the same manner as a General Ave- 
 rage claim, and usually under that name. 
 
 The underwriters generally prefer to have a claim for 
 salvage settled by the United States Court. Of all the 
 modes of settling a demand for salvage, an arbitration 
 is usually the most injudicious for the master to adopt. 
 He is very liable to be imposed upon, however cautious 
 he may be, as he can scarcely ever know anything of the 
 qualifications of the arbitrators. Besides, however intel- 
 ligent or honest they may be, there is usually a spirit 
 prevalent, in neighborhoods where shipwrecks often oc- 
 cur, which the French call an esprit de localite, which 
 warps the judgments of the most candid and upright 
 
EXPENSES. 117 
 
 men engaged in business, and renders their awards par- 
 tial and unjust. 
 
 When a ship and cargo are saved together, as, by light- 
 ening the ship, carrying out anchors &o., the total salv- 
 age is apportioned upon the ship and cargo, according 
 to their respective values. But when the ship is wreck- 
 ed and lost, the interests are thereby dissociated, in as 
 much as the different articles of the cargo are likely to 
 belong to different owners, each separate article of the 
 cargo saved ought, as near as may be, to bear its own 
 expense of saving, so that dry cotton belonging to one 
 owner shall not pay for saving wet cotton belonging to 
 another, nor silks pay for saving rail road iron. Articles, 
 however, of the same kind, saved at the same time, by 
 the same salvors, in a similar condition, may generally 
 be charged with the same rate of salvage. So, too, in 
 such cases, the wharfage, storage, labor bills in landing 
 and storing the goods saved, ought, as near as may be, 
 to be charged to the separate article saved, so that goods 
 of great value and little bulk shall not be made to pay 
 the expenses on goods more bulky and less valuable. 
 Expenses of sale should be charged to the goods sold. 
 In such case, however, the notary's fee for noting and 
 extending the master's protest, cost of documents useful 
 to all the parties interested, and the costs of salvage 
 suit, instituted by all the salvors conjoined, against all 
 the property saved, are ordinarily rated as common 
 charges and apportioned. Peters v. Warren Ins. Co., 
 1 Story, C. C. 463. 
 
 England. — When the situation of a ship is dangerous 
 
118 GENERAL AVERAGE. 
 
 in a high degree, and the fear of her loss is very great^ 
 the services of extraneous persons who rescue her from 
 that peril, w^ho drag her off rocks, disentangle her from 
 surrounding sands or w^ho save her from sinking, are re- 
 garded in a different light from mere assistance which is 
 paid hy the man, by the tide, or by the hour, — and they 
 go under the name of salva'ge. When salvage services to 
 a ship and her cargo are paid for in one sum, in accord- 
 ance with a previous agreement or a subsequent compro- 
 mise, by an award of referees, by the arbitration of 
 magistrates or commissioners, or by the decision of the 
 Admiralty Court, that amount is frequently allowed to 
 form an item of the General Contribution, and is divided 
 on the same values as the other common interests. But 
 if special valuations of ship, goods and freight were 
 made by or for the arbitrators, admiralty court &c., few* 
 the purpose of coming at a decision, it is the better plan 
 to adhere to those valuations in dividing the salvage. 
 And if the arbitrators &c. specifically name a separate 
 sum of salvage to be paid on each of the interests, those 
 sums should in most cases remain undisturbed and sepa- 
 rate in the adjustment. Hopkins, 44. 
 
 France. — The expenses of remunerating salvage ser- 
 vices rendered for the common benefit, are General Ave- 
 rage. When the adjuster can, he determines what 
 expenses have been incurred on account of the ship and 
 what on account of the cargo. But this, in many instan- 
 ces, is extremely difficult, on account of a want of defi- 
 nite information, as, for instance, where money is expen- 
 ded for paying laborers employed in saving and trans- 
 porting ship's materials and cargo indiscriminately, 
 
EXPENSES. 119 
 
 expenses of correspondence &o. In such cases the 
 expense is apportioned according to the values saved at 
 the place of saving ; and if this cannot be ascertained, 
 ' then at the place of destination, deducting the freight 
 and landing charges and a certain profit, in order to ap- 
 proximate as near as possible to the values at the port of 
 refuge or place of shipwreck 'and saving. The expenses 
 incurred by the cargo as a totality are divided between 
 the different kinds of goods partly in proportion to vol- 
 ume and weight and partly in proportion to their respect- 
 ive values. The cost of labor, cartage &c. , is divided upon 
 the goods saved according to volume and weight, and 
 the Commissions &c., paid, according to values. Cau- 
 vet, § 350. Code de Commerce de France, art. 400. 
 
 Holland, — General Average. Commercial Code of 
 Holland, sec. 699, art. 16. 
 
 Commissions on advances for General Average pur- 
 poses. 
 
 United States. — Commissions on disbursements, loss 
 on exchange, bottomry premium, cost of bond, loss on 
 sound cargo sold to pay expenses, are General or Partic- 
 ular Average, according to the nature of the case, and 
 are apportioned in an adjustment of Average to each 
 interest benefitted. 
 
 England. — When a merchant or agent makes the dis- 
 bursements, he charges a commission for advance of 
 funds. This is applied as a percentage to all the columns 
 of disbursements. His travelling and other small ex- 
 
120 GENERAL AVERAGE. 
 
 penses usually belong to General Average. The agent 
 very commonly makes a charge for his trouhle and 
 attendance, his general supervision of the business cor- 
 respondence &c. This is most frequently charged to Gen- 
 eral Average in one sum. 
 
 France. — Commissions on money advanced, differen- 
 ces of exchange, and bottomry premiums, are divided 
 pro rata upon the different columns of expenses. Cau- 
 vet, 374. 
 
 Commissions collecting General Average. 
 
 Allowed in the United States, but not in England. 
 In Barnard v. Adams, 10 Howard, 270 : It was held 
 by the Supreme Court of the United States, that the two 
 and a half per cent, allowed for collecting the General 
 Average, rests upon the usage and custom of merchants 
 and Average Brokers. It is a duty arising out of the 
 unforeseen disaster and resulting directly from it. Usu- 
 ally there are Contributions to be paid out as well as 
 received by the ship-owner. It is a troublesome duty 
 not embraced in their obligation as mere carriers. The 
 usage is therefore not unreasonable. The objection, that 
 it is paying the owners for merely collecting their own 
 debt, is founded on the accidents or peculiar circum- 
 stances of the case, and does not affect the general prin- 
 ciple, on which the usage is based. 
 
EXPENSES. 121 
 
 Interest on money advanced for General Average pur- 
 poses. 
 
 Universally admitted to be Greneral Average. 
 
 Expenses discharging cargo and carrying to a point of 
 safety — to repair ship. 
 
 United States. — If a master, in consequence of some 
 disaster, for the common safety of ship and cargo, put 
 into an intermediate port, and there necessarily, and for 
 the common benefit unload the cargo to repair the ship, 
 the expense of discharging cargo and carrying it to a 
 place of safety, is General Average, also the expense of 
 reloading, and accidental damage done to the cargo in 
 consequence of unloading. 
 
 England. — If the vessel have sprung a leak or have in- 
 jured her keel or bottom, and it become necessary, in or- 
 der to get at the damaged part, to discharge the cargo, the 
 labor of discharging is General Average. So are lighter 
 and boat hire with the goods to the shore, cartage of 
 them to the warehouse or other place of safety, the labor 
 taking them into the warehouse, the pay of custom-house 
 officers attending the discharge and warehousing, police 
 or military guards, metage from the ship, use of tackles, 
 planks, baskets for discharging &c. If the cargo be kept 
 in the lighters instead of being landed, some portion of 
 the lighter hire is usually applied to General Average ; 
 for. it is considered that to hire lighters instead of a 
 warehouse on shore is a more expensive course, and on 
 the other hand the increased expense of transit from the 
 
122 GENERAL AVERAGE. 
 
 ship to the shore and warehouse has heen saved, and an 
 equitable compensation for it should be made by the 
 Average stater. Hopkins, 46. 
 
 France. — When the master, after due consultation 
 with the crew, goes into a port of refuge for the common 
 safety of ship and cargo, the expense of unloading the 
 cargo when a leak in the ship endangers the cargo, and 
 such unloading is necessary to stop the leak, and the 
 leak is stopped, and the voyage resumed, including 
 damage or deterioration to the cargo caused by the un- 
 loading, and the expense of storing and reloading the 
 cargo, are General Average. 
 
 Belgium. — By the custom of Antwerp, the community 
 of interest between the ship and the cargo is considered 
 as interrupted from the moment the cargo, if it be ne- 
 cessary to unload it, is separated from the ship or from 
 lighters in order to be landed. Consequently the cargo 
 is charged with the expenses of landing and conveying 
 to the warehouse, the storage, surveys on it, and the 
 expense of putting the cargo on board again, or on board 
 lighters to be carried to the ship. 
 
 Holland. — The expense of unloading the vessel, the 
 hire of warehouses and depots in which the merchandise 
 is deposited which cannot remain in the vessel during 
 the refitting, is G-eneral Average. Dutch Com. Code, 
 art. 698; 
 
 Germany. — If the cargo must be discharged as a 
 consequence of the cause which led to the ship putting 
 into the port of refuge, the expenses of discharging and 
 unshipping, and the expense of warehousing the cargo 
 on shore up to the time when it might have been put on 
 
EXPENSES. 123 
 
 board again, are General Average. German General 
 Mercantile Law, art. 708. 
 
 Denmark. — Expense of discharging and reloading 
 cargo and warehouse rent for the cargo, are General Ave- 
 rage. 
 
 Spain. — If the cause of putting into port, be one of it- 
 self General Average, then all the expenses of discharg- 
 ing, storage, reloading &c., are General Average ; other- 
 wise they are Particular Average. 
 
 Sweden. — The expenses of discharging cargo, storing, 
 reshipping and stowing of the same, are General Average, 
 when the goods must be discharged in order to repair the 
 ship. Swedish Merc. Code, 1865. 
 
 Norway. — The expense of discharging, warehousing 
 and reshipping the cargo, is General Average, but not 
 the money paid laborers for moving the cargo while in 
 the storehouse, or any other arrangement for the preserv- 
 ation of the same. Norwegian Mer. Code, 1860. 
 
 Expenses discharging cargo to cool fyc. Cargo. 
 Generally admitted to be General Average. 
 
 Expenses discharging cargo, because pumps are chohed. 
 Generally allowed in General Average. 
 
124 GENERAL AVEEAGE. 
 
 Expenses of discharging cargo in order to extricate ship 
 and cargo from a perilous situation, as, for instance 
 to float a stranded ship, and damage sustained by the 
 goods in consequence. 
 
 United States. — When a part of the cargo is shipped 
 over into lighters or the long boat, in order to extricate 
 the ship and cargo from a perilous situation, as, for in- 
 stance, to set a stranded ship afloat, or to lighten a leaky 
 one, and bring her into harbor ; the charges of such a 
 measure, as well as the damage sustained by the goods 
 in consequence of it, are General Average. They were 
 exposed intentionally to an extraordinary danger for the 
 benefit of the whole, and this is sufiicient to entitle them 
 to compensation. 
 
 The same rule would also apply, when a vessel, with- 
 out being too heavily laden for the usual depth of the 
 port of her destination, is obliged to unload part of her 
 cargo, owing to an unusual shallowness, or to any simi- 
 lar cause. For the measure is occasioned by an unfore- 
 seen circumstance, and is necessarily resorted to for the 
 purpose of avoiding a danger threatening the whole, and 
 must, therefore, be at the expense and peril of all con- 
 cerned ; and it can make no difference whether such a 
 circumstance take place in an earlier part of the voyage, 
 or at its termination. Only in the latter case, the com- 
 mon lighterage, which would at all events have been 
 paid, must be deducted. Benecke, 134. But the case 
 is otherwise, if, owing to the nature of the river or port 
 to which a vessel is bound it become always, or fre- 
 quently, necessary to unload part of her cargo to enable 
 
EXPENSES. 125 
 
 her to proceed. Mr. Phillips (§1288) says : " Where it 
 . is usual for vessels of the same burden as the one in 
 question, to discharge a part of the cargo on the outside 
 of the bar of the port of destination, no Contribution is 
 to be made, though the goods should be damaged in the 
 lighters." 
 
 In one case, where a ship was stranded near her port 
 of delivery, and lighters were sent which took out her 
 cargo, and carried it into port, the vessel never being 
 got off, it was held that the expense of lighterage was 
 an Average loss, to which the cargo should contribute. 
 Heylyger v. N. Y. Firemeris Ins. Co. 11 Johns, 85. — 
 Mr. Parsons (vol. 1, 297) says : " We can understand 
 this case, only on the supposition (which a part of the 
 statement indicates) that the lighters were considered as 
 sent by all the parties, by agreement, for the common 
 benefit, and therefore that the expense was incurred by 
 all. On general grounds we should have said that the 
 ship had earned her whole freight by conveying the cargo 
 to its destination, and must herself pay, or deduct from 
 the freight the expense of the lighters in which it was 
 earned. Leicis v. Williams, 1 Hall, 430. 
 
 If the goods which are taken out into lighters, for the 
 common benefit, be thereby, or while in the lighters, 
 lost or injured, this, as we have said, constitutes an 
 Average loss ; but if, after the cargo is partly taken out, 
 the ship and the cargo in her be lost, and the goods in 
 the lighters saved, they do not contribute for the prop- 
 erty lost, for it was not lost for their benefit, nor as a 
 consequence of any measure taken for their advantage. 
 
 England. — Where, in the course of the voyage, in order 
 
126 GENERAL AVERAGE. 
 
 to save a ship from foundering, to float her after strand- 
 ing, or to enable her to make a port of distress, part of 
 the cargo is put into boats and lighters, and lost before 
 reaching the shore, such loss gives a claim to General Av- 
 erage Contribution ; for it is regarded as an intentional 
 exposure of the goods to imminent and extraordinary 
 risk, vsrith a view to the ship's safety. 
 
 If, however, the goods be thus hazarded in the ordi- 
 nary course of the voyage, and not in order to rescue 
 the ship from any extraordinary or impending danger ; 
 as where, in the usual course of the navigation, they are 
 necessarily sent on in boats or lighters from the ship to 
 the port of destination, their loss gives no claim to Con- 
 tribution. 
 
 If, in the case first supposed, the boat employed for the 
 purpose of taking out the goods, itself belong to the ship, 
 it must, as well as the goods, be contributed for, if lost. 
 
 If, however, in the same case, the ship and rest of the 
 cargo be lost, no Contribution is made in respect thereof 
 by the goods thus exposed for the general welfare, even 
 though they themselves arrive safe ; for, as they do not 
 owe their preservation to the loss of the ship, they cannot 
 be liable to contribute to such loss ; neither in case the 
 ship be lost, but the cargo or a portion of it saved, can 
 the portion so saved be liable to contribute for the goods 
 transhipped. Arnould, §890. 
 
 France. — The French law enacts, that if goods be lost 
 which are loaded into barks for the purpose of lighten- 
 ing a vessel on entering a river or a port, the loss is to be 
 distributed over the ship and the whole cargo. Ord. de 
 la Mar. Tit. du jet. art. 19 ; Code, art. 427. 
 
EXPENSES. 127 
 
 The Russian, Prussian, Rotterdam and other Ordinan- 
 ces of insurance, contain similar directions to those of 
 France. Rot. Ins. Ord., §92-95 ; Dan. 5 ; Ord. de Bil- 
 boa, c. 20, art. 14. 
 
 The Hamburg ordinance of insurance (Tit. 22, art.ll) 
 says : " When a master, in order to lighten a vessel in a 
 river, or at the entrance of a port, loads a part of her 
 cargo over into smacks or other small craft, any damage 
 or loss happening to the same is reckoned eqvial to jet- 
 tison, and must be paid for as General Average." 
 
 Holland. — The expenses of discharging, of lighterage, 
 and other expenses incurred, in order to bring the vessel 
 into a port or river for the common safety of the ship and 
 cargo, when compelled by gales, by the pursuit of ene- 
 mies or pirates, or by any other cause, to enter such port 
 or river, and also the loss or damage of the cargo sus- 
 tained by the discharge and loading into lighters or boats 
 of the ship when in distress, and reloading on board the 
 vessel, are General Average. Dutch Commercial Code, 
 sec. 699, art. 14. 
 
 The new German law provides : " When in order to 
 lighten the vessel, the cargo has been either altogether 
 or in part discharged into lighters — To General Average 
 belong as well the hire of the lighters as also the damage 
 which may have been done either to the ship or cargo, 
 by discharging into the lighters or by reshipping into the 
 vessel, as also any damage which may have been done 
 to the cargo while in the lighters. 
 
 If the lightening of the vessel must take place in the 
 regular course of the voyage, there is no General Aver- 
 age. German General Mercantile Law, §708. 
 
128 GENEBAL AVEBAGE. 
 
 Expenses incurred to restore cargo when shifted by per- 
 ils of the sea. 
 
 Universally admitted to be General Average. 
 
 Expenses incurred to enable a vessel in the ordinary 
 course to leave her port of loading. 
 
 Not Greneral Average, antwheee. 
 
 Expenses incurred to enable a vessel to enter her port of 
 destination — to cross a bar or shoal in her ordinary 
 trach. 
 
 If, owing to the nature of the river or port to which a 
 vessel is bound, it become always, or frequently, neces- 
 sary to unload part of her cargo to enable her to proceed, 
 this is not General Average. But if the vessel be oblig- 
 ed to unload part of her cargo owing to some unusual 
 obstruction, this is an unforeseen circumstance, and re- 
 sorted. to for the purpose of avoiding a danger threaten- 
 ing the whole, and should, therefore, be General Average. 
 Weytsen, §30 ; Park, 7th ed. 1, 205. 
 
 M. Cauvet in his Traite sur les Assurances Mari- 
 times, says : " When, in going into or coming out of a 
 port, haven or river in the ordinary course of the voyage, 
 it is necessary to lighten the ship, if any of the goods 
 put on board the lighters be lost or damaged, the loss or 
 
EXPENSES. 129 
 
 damage is General Average ; but the expense of light- 
 ering in this case is the foreseen and ordinary expense 
 of making the voyage, and must be paid by the ship- 
 owner. 
 
 Expense of bagging a cargo when it is in damaged bags, 
 in a port of refuge. 
 
 Is not admitted in the United States, England or 
 France to be General Average. 
 
 Expense of bagging cargo when it is bulk, in a port of 
 refuge. 
 
 Admitted to be General Average in England, but not 
 in the United States or France. 
 
 Expense of airing and cooling cargo in a port of refuge. 
 Not General Average. 
 
 Expense of coopering casks as far as rendered necessary 
 by discharging. 
 
 General Average in the United States, but not in Eng- 
 land or France. 
 
 9 
 
130 GfENEEAL AVERAGE. 
 
 Pilotage, inward and outward, at a port of refuge. 
 
 In the United States, France, Belgium, Holland, Ger- 
 many, Sweden and Norway, the pilotage both inward and 
 outward is allowed in General Average. In England, 
 the inward pilotage is General Average, the outward pi- 
 lotage a special charge to freight. 
 
 Warehouse rent Sfc, on cargo at a port of refuge. 
 
 In the United States, France, Holland, Belgium and 
 Germany, the warehouse rent is General Average. In 
 England, it is special charge to cargo. 
 
 Expense of re-shipping cargo at a port of refuge. 
 
 Everywhere except in England this expense is General 
 Average. In England it is a special charge to freight. 
 
 Expense of forwarding cargo to port of destination hy 
 another vessel. 
 
 United States. — When a vessel is condemned and sold 
 at an intermediate port, or is dashed against rocks or 
 land and broken, or otherwise rendered useless by vio- 
 lence and fracture, the community of interest cannot 
 longer be considered to exist ; therefore, the charges be- 
 come special. The sending forward of the cargo being 
 
EXPENSES. 131 
 
 the means of earning freight, the expense falls upon that 
 interest as a special charge. 
 
 If the expense be greater than the original freight, 
 the extra freight is a special charge to cargo, as it was 
 incurred for its benefit solely; and is apportioned in 
 bulk, in proportion as the whole freight bears to the ex- 
 cess, thus : 
 
 Freight per Bill of Lading, 
 
 On 1 case - - |4 00 pai/s extra freight %\ 00 
 
 1 cask- - - 2 50 do. 63 
 
 \hhl. . - - 1 25 do. 31 
 
 1 box- - - 25 do. 06 
 
 $8 00 $2 00 
 
 The expense of forwarding cargo, must be paid by the 
 insurers of freight, to the full extent of that interest at 
 risk, and by the insurer of cargo if the new freight ex- 
 ceed the old. 
 
 In case the expense of forwarding do not amount to 
 the original freight, the surplus freight belongs to the 
 ship-owner, who is responsible to that extent to his un- 
 derwriters on freight, as so much salvage received by 
 him for their account ; and accordingly to be deducted 
 in settlement of loss under the policies. 
 
 When the ship is stranded, and the goods are forward- 
 ed to the nearest port, which happens to be the destina- 
 tion of the ship ; the lightening of the cargo to enable 
 the vessel to float again, and at the same time place the 
 cargo in better safety, is considered by Average adjust- 
 ers and Underwriters of New York, a legitimate item for 
 Average Contribution. The same charge in Boston, is, 
 
132 GENEEAL AVERAGE, 
 
 in practice, generally charged to the earnings of the ves- 
 sel. But if the vessel be wrecked and rendered useless 
 by the stranding, the sending forward the cargo, as we 
 have seen, is a special charge to the interest benefitted. 
 
 In England — The expense of forwardfng cargo to the 
 port of destination by another vessel, is a special charge 
 to freight, unless the expense of reshipping it and the 
 new freight exceed the original freight. 
 
 France. — Freight paid to another vessel for carrying 
 on a part of the cargo from the port of refuge which the 
 ship is unable to restow or carry, is General Average. 
 
 When the ship is condemned in a port of refuge as 
 incapable or unworthy of repair, the expense of forward- 
 ing the cargo by another vessel, is charged to the inter- 
 est benefitted. 
 
 Hire of lighters at a port of refuge to avoid landing 
 cargo. 
 
 As this is a measure usually resorted to for the pur- 
 pose of curtailing expense, in those ports where the 
 landing, storing and reshipping charges would be Gen- 
 eral Average, this expense should certainly be allowed. 
 
 Wages of men employed to pump, when cargo is on 
 board. 
 
 Universally allowed in General Average. 
 
EXPENSES. 133 
 
 W ages- af men employed to pump when cargo is not on 
 board. — Vessel in ballast. 
 
 United States. — In Potter v. Ocean Ins. Co., 3 Sum- 
 ner's R. 38, it was decided that where a vessel meets 
 with disaster, and hears up for a port of necessity, wages 
 and provisions are chargeahle as in General Average, 
 although she was in ballast. The distinction hetween 
 General and Particular Average heing determined hy 
 the consideration whether the act be intended for all con- 
 cerned in the voyage, and not in particular by the con- 
 sideration who are to contribute to the indemnity. The 
 practice in New York and Boston, is in conformity with 
 this decision, all items applicable to General Average 
 are charged by the adjuster to that column, without re- 
 gard to whether the vessel has cargo on board or not, 
 and at the end of the Adjustment, they are transferred 
 to the Partial Loss column as being applicable to the 
 vessel alone. 
 
 In England, France and other countries the cost of 
 pumping, when there is no cargo on board, is not regard- 
 ed as General Average. 
 
 Wages and provisions of crew during detention at a 
 port of refuge. 
 
 We have stated this fully under the head of port of 
 refuge expenses. It is necessary only to repeat briefly, 
 that, — In the United States, the expense of wages and 
 provisions of the master and mariners, from the time the 
 
134 GENERAL AVERAGE. 
 
 vessel bears away from the course of her voyage to go 
 into a port of refuge, to the time the ship is again ready 
 for sea, is (xeneral Average. 
 
 England. — The wages and provisions of the crew are 
 not regarded as an Average, either General or Particular, 
 but are paid by the ship-owner as an ordinary expense 
 of navigation. 
 
 France. — The wages and provisions, during detention 
 at a port of refuge, are, in practice, regarded as Particu- 
 lar Average, whatever may be the cause of the putting 
 into port, or whether the ship be freighted by the voyage 
 or by the month. 
 
 Spain.— The 20th article of the 20th chapter of the 
 Ord. de Bilboa declares, that in Spain the wages and 
 maintenance of seamen, in case of repairs or other deten- 
 tion in a port, are not General Average. In practice, 
 however, they are generally allowed. 
 
 Belgium. — Wages and provisions of the crew are re- 
 jected from General Average. If the freight be insured, 
 they are considered as a Particular Average on the 
 freight, and are paid by the underwriter on freight, as in 
 France. 
 
 Italy. — The new Code of Commerce, in vigour since 
 the 1st January, 1866, has determined, that the wages 
 and victuals of the crew during the time the vessel is 
 detained in an intermediary port to repair the damage 
 sustained in the course of her voyage, are to be allowed 
 in General or Common Average. 
 
 Holland.— The wages and food of the crew during the 
 time the vessel is constrained to remain in port, are Gen- 
 eral Average. 
 
EXPENSES. 135 
 
 Germany. — The new code lately adopted by the Ger- 
 man States, and the free towns of Lubeck, Hamburg 
 and Bremen, determines the wages and provisions of the 
 crew during the stay, also the expense of lodging the 
 crew on shore, and as long as they could not remain 
 on board, to be General Average. 
 
 Portugal. — The wages and provisions are General Av- 
 erage. 
 
 Sweden. — The Swedish Maritime Code of 1865, de- 
 clares, that the support of the crew while the vessel re- 
 mains in a port of refuge is General Average ; wages are 
 not mentioned, but in practice allowed. 
 
 Norway. — The Norwegian Code of 1860, declares, that 
 wages and support of master and crew, which are calcu- 
 lated for the time during which the vessel necessarily 
 must remain, in order to have the damage repaired, are 
 General Average. 
 
 Denmark. — The ordinary wages and provisions for the 
 captain and crew are General Average. 
 
 Brazil. — The wages and maintenance of the crew, 
 from the day the vessel's course was altered to seek a 
 port of refuge, until she be again supposed to be placed 
 on the same spot, and the lodgment of the captain and 
 crew on shore (if they cannot remain on board,) are Ge- 
 neral Average. Commercial Code of Brazil, adopted 
 1850, Titulo viii, art. 765. 
 
 Cuba. — It is the practice to allow in General Average, 
 the wages and maintenance of the crew during the term 
 of the necessary detention in an intermediate port. 
 
136 GENEBAL AVEBAGE. 
 
 Wages and provisions of the crew during detention for 
 the purpose of prosecuting the voyage on a decree of 
 release. 
 
 United States. — If the crew be detained during delay, 
 to claim a captured ship and cargo, for the purpose of 
 prosecuting the voyage on a decree of release, the_ ex- 
 pense of their wages and provisions during such deten- 
 tion is to be contributed for. The Contribution in this 
 case seems to rest upon the same grounds as in case of 
 delay, and seeking a port of necessity, to refit. 
 
 A contrary opinion, however was given by Mr. Justice 
 Jachson, in the case of Spafford v. Dodge, 14 Mass. R. 
 66. The case grew out of a charter-party. A vessel 
 was chartered at a certain rate per month, for a voyage 
 from the United States to Spain and St. Ubes and back, 
 during which voyage the vessel was captured and car- 
 ried into Gibraltar, where she was detained under admi- 
 ralty proceedings from the 6th of January until the 10th 
 of May, when she was acquitted, and finally arrived in 
 the United States. The court said : " The necessary 
 costs and charges incurred in claiming and obtaining the 
 restoration of the ship and cargo are undoubtedly to be 
 allowed as a General Average. As to the wages and 
 provisions of the crew, we are unable to see any ground 
 on which we can allow them." The court considered 
 the case to be distinguished from making a port of ne- 
 cessity to refit, by the latter being voluntary, and reject- 
 ed the claim on the ground that the charter-party was 
 not dissolved by the capture, and that the services of the 
 master and crew were rendered in purs.uance of, and due 
 
EXPENSES. 137 
 
 by virtue of, their previous contract. But the court was 
 of opinion, that if the time of service of tl^e crew had 
 expired, and a crew had heen shipped again at the port 
 to which the vessel was taken by the captors, then the 
 expense of their wages and provisions would have been 
 General Average. 
 
 Notwithstanding the decision of this very able judge, 
 the point has been generally decided otherwise. Leaven- 
 worth V. Delafield, 1 Gaines, 573 ; Hurtin v. Phoenix 
 Ins. Co., 1 Wash. C. C. 400. 
 
 A distinction is made in the last cited cases between 
 a capture and an embargo. It is said that a capture dis- 
 solves the contract, while an embargo does not, and that, 
 therefore, in the latter case the seamen are under obli- 
 gations to remain by the vessel, while in the former 
 they are at liberty to depart, and if they remain, this is 
 a voluntary act on their part, and their wages and pro- 
 visions, therefore, are a subject of General Average Con- 
 tribution. 
 
 The current of decisions is in favor of the proposition 
 that wages and provisions, during a detention by an em- 
 bargo, are not a subject of General Average, on the 
 ground that it is not a voluntary sacrifice. McBride v 
 Mar. Ins. Co., 1 Johns, 431 ; Harrod v. Lewis, 3 Mart. 
 La., 311 ; Penny v. N. Y. Ins. Co., 3 Gaines, 155 ; The 
 Nathaniel Hooper, 3 Sumner, 542, 557. 
 
 England. — Mr. Hophins (49) says : "Although, by the 
 English custom, the wages of the master and crew are 
 not generally chargeable in General Average, there is 
 one case in which they are rightly admitted ; and that 
 
138 GENERAL AVERAGE. 
 
 is, when, a ship having been captured or detained in a 
 foreign port, it is necessary for the master and some 
 members of the crew to remain with her for the purpose 
 of making and substantiating a claim for her restitu- 
 tion together with the release of her cargo. But if the 
 ship be detained under an embargo only, the wages are 
 not allowable and remain at the owners charge." 
 
 Prance. — Wages and provisions of the crew who re- 
 main on board to guard or reclaim a captured ship and 
 cargo, are General Average. 
 
 In Hamburg it is customary to include wages and 
 provisions in the General Average, in all cases of deten- 
 tion of the ship and cargo. 
 
 Extra wages to men to supply the places of deserters at 
 a port of refuge. 
 
 Not General Average. 2d Phillips, p. 85. Hughes on 
 Ins., p. 292. 
 
 Gratuities promised to seamen, in time of danger. 
 
 United States. — ^As a general rule, gratuities to sailors, 
 paid or promised, to increase their exertions during peril, 
 do not constitute an Average loss. 
 
 There are a few exceptional cases, however, where the 
 judgment of the Adjuster must decide whether the cir- 
 cumstances bear out some additional payment to the 
 crew — as, for instance, when a ship in a disabled con- 
 
EXPENSES. 139 
 
 dition puts into a port where leaks cannot be stopped, 
 or where repairs cannot be eflFected without very heavy 
 expenses, and it becomes highly desirable to reach, if pos- 
 sible, the place of destination, yet the Consul is of opin- 
 ion that the ship's company cannot be forced to go to sea 
 again in the vessel's then condition ; — in such a case, if 
 the offer of additional pay, and an allowance of addition- 
 al provisions prevail with the crew to proceed on the 
 voyage, and to redouble their exertions, the result of such 
 an arrangement would justify the proceedings, and the 
 parties interested would scarcely object to a payment 
 productive of so much advantage to themselves and ques- 
 tionable on more theoretical considerations only. 
 
 England. — The ordinary crew of a ship are not to be 
 paid an additional sum for their extraordinary exertions, 
 because it is their bounden duty to give their utmost ef- 
 forts for the preservation of the ship and the prosecution 
 of the voyage. 
 
 Temporary repairs to a ship at a port of refuge. 
 
 United States. — The rule is laid down by Mr. Phillips 
 §1300, as follows : " Temporary repairs of damage from 
 extraordinary perils of the sea, made at some intermedi- 
 ate port for the purpose of prosecuting the voyage, where 
 thorough repairs could not be made, or would cause un- 
 reasonable delay, or be otherwise attended with mate- 
 rial inconvenience and prejudice to all concerned, so far 
 as such temporary repairs are of no peculiar benefit to 
 the ship-owner, and leave him subject to the same ex- 
 
140 GENERAL AVERAGE. 
 
 pense in prosecuting the voyage, and subsequently- 
 making repairs, as if the same had not been made, are 
 General Average." 
 
 " The ground of claim for Contribution is to be strictly 
 limited, since it belongs to the ship-ovraer in general to 
 furnish a seaw^orthy ship, and, as far as it is practicable, 
 to keep it in a condition suitable for prosecuting the 
 voyage. The exception to this rule does not depend 
 upon what is most for his interest solely, but upon what 
 is beneficial to all concerned. Subject to such conditions, 
 the temporary repairs belong to General Average." See 
 also 1 Parsons, 293 ; 7 Pichering's R. 259 ; 2 Metcalf 
 Rep. 140. 
 
 The practice with reference to repairs, both permanent 
 and temporary, is in New Yorh, Boston and other prin- 
 cipal ports, as follows : 
 
 When repairs are made to a vessel, by reason of a vol- 
 untary damage or sacrifice, incurred for the general pre- 
 servation, they are to be contributed for by the interests 
 benefitted — less from permanent repairs, the usual de- 
 duction of one third new for old. 
 
 • When, by reason of accidental damage, the materials 
 of the vessel are applied to extraordinary use, they are 
 also to be contributed for, subject to similar deductions. 
 
 When, by reason of accidental damage, say stranded 
 on a beach distant from a port where repairs could be 
 made, materials are purchased to enable the voyage to 
 be prosecuted, and preserve all the interests from immi- 
 nent danger of destruction, for example — canvass cover- 
 ings, tarred paper, planks for sheathing on the bottom 
 &c., all for temporary stopp.age of the leak, they are to be 
 
EXPENSES. 141 
 
 contributed for, net, without the deduction. 
 
 When a vessel is in a port where repairs can he made, 
 the owners are hound to make them at their own ex- 
 pense. Repairs only temporary in their character, can 
 be claimed from the underwriters on the vessel, without 
 the usual deduction of one-third ; other repairs as agreed 
 upon in the contract of insurance. 
 
 Temporary repairs made at a port of refuge, to avoid 
 the expense of complete repairs, which would greatly 
 exceed those at the home port, being of no benefit to the 
 cargo, are charged to Partial loss net. But if any ben- 
 efit still result to the ship from the repair, it is subject 
 to a deduction of one-third, like other repairs. 
 
 If sails which have never been set, or uncoiled ropes 
 be destroyed for repairs, the ship-owner has a right to 
 claim for their value without a deduction of one-third 
 new for old. 
 
 Adjusters find, by experience, that repairs done to a 
 ship are always of some benefit to her, and therefore 
 doubt, whether any part of those repairs, which in them- 
 selves are of the nature of a Particular Average, can ever 
 be construed into a General Average ; hence the rule, in 
 practice, is as we have stated it. 
 
 England. — Temporary repairs are not General Aver- 
 age, except under certain circumstances — ^for example, 
 when the alternative would be incurring other expenses 
 which would be General Average. 
 
 The practice in England is stated by Mr. Hopkins 
 (108) as follows : " Those temporary reparations done in 
 ports where the vessel cannot be restored perfectly and 
 permanently, but which may suffice to allow her to com- 
 
142 GENEBAI, AVEEAGE. 
 
 plete her voyage, having to he taken away afterwards, 
 are clearly Hot to he held in any way to be meliora- 
 tions, must he charged in Particular Average in full." 
 That is to say, without the deduction of one-third new 
 for old. 
 
 Diving under and examining the ship's bottom, to avoid 
 the necessity of discharging cargo. 
 
 General Average. 
 
 Expenses on Passengers at a port of refuge. 
 
 In passenger ships, the provisions &c., laid in specially 
 for passengers are not part of the general property insur- 
 ed under the name of ship. They are generally protect- 
 ed by a separate policy, and therefore the expenses 
 incurred on passengers at a port of refuge, are not charg- 
 ed to General Average, but to the underwriters on pas- 
 sage money. This is the rule in the United States and 
 England ; in France the expenses are frequently allowed 
 in General Average. 
 
 Ship's provisions consumed by worhmen from the shore, 
 w hen employed in repairing General Average losses. 
 
 An equitable value of the provisions thus used, is al- 
 lowed in General Average. 
 
EXPENSES. 143 
 
 Provisions consumed hy wreckers, placed on hoard to ex- 
 tricate the vessel from an impending peril, and while 
 transporting her to a port of safety. 
 
 Made good to the ship in General Average Contribu- 
 tion. 
 
 Bottomry premium on expenses incurred at a port of 
 refuge. 
 
 United States. — Charged to cost of funds, and appor- 
 tioned ^ro rata among the several interests for whom ex- 
 penses were incurred. 
 
 England. — Not General Average, except on that por- 
 tion of expenses allowed in General Average. 
 
 Fbance. — The premium on borrowing money on bot- 
 tomry or respondentia, and the cost of borrowing, are 
 added to the principal of each Average, in the proportion 
 that it bears to the total expenditure. 
 
 Holland. — The marine premmm on money borrowed 
 on bottomry to pay General Average expenses, is charg- 
 ed to General Average. 
 
 Germany. — The German General Mercantile law (sec. 
 708), declares, " When losses and expenses have been 
 incurred in obtaining the moneys necessary for payment 
 of General Average during the voyage, or when expen- 
 ses have been incurred in apportioning the amounts am- 
 ong the parties interested — These losses and expenses 
 also belong to General Average. Hereto belong more 
 
144 GENERAL AVERAGE. 
 
 particularly, the loss on goods sold during the voyage, 
 the bottomry premium w^hen a bottomry bond has been 
 given for the advance of the necessary moneys ; when 
 this is not the case, the premium of insurance on the 
 moneys expended." 
 
 Sweden. — The premium for bottomry bond, when such 
 must be given, in order to procure the money necessary 
 to be expended on mutual account. Expenses of issu- 
 ing bills of exchange, insurance and lawful interest 
 when the means are obtained in any other way, are al- 
 lowed in General Average. Swedish Maritime Code, 
 1865. 
 
 Insurance on expenses incurred at a port of refuge. 
 
 United States. — Charged to cost of funds and appor- 
 tioned pro rata the same as bottomry premium. 
 
 In England, France and other countries, the same rules 
 applying to bottomry premium, apply to insurance on 
 expenses. 
 
 Landing cargo when a vessel is wrecked, or properly 
 condemned at a port of refuge — when is the commu- 
 nity of interest dissolved, so as to cause the General 
 Average charges to cease ? 
 
 United States. — The liability to General Average con- 
 tinues until the interests have become completely sepa- 
 
EXPENSES. 145 
 
 rated, and there is no longer any community of interest 
 remaining. 
 
 If the enterprise be not abandoned, and the property 
 be still under the control of the master of the vessel, and 
 liable to be again taken on board for the purpose of 
 prosecuting the voyage, the common interest remains, 
 and whatever is done for its protection, is done at the 
 common expense. 
 
 The case of Nelson v. Belmont, (5 Duer, 810), grew 
 out of expenses consequent upon going into a port of re- 
 fuge, and there discharging the cargo, and involved a 
 decision of the point as to the time, when, in the history 
 of the transaction, the community of interest was broken 
 up or dissolved, so as to cause the General Average 
 charges to cease. The court decided, that, if the voyage 
 be not abandoned, and the property although separated 
 from the rest and removed from the ship, be still under 
 the control of the master, and liable to be taken again 
 on board for the purpose of being carried to its destined 
 port, the relations of the several owners are in no respect 
 changed. The common interest remains, and whatever 
 is done for that common interest, must be done at the 
 common expense. 
 
 The case of Mc Andrews v. Thatcher, decided by the 
 Supreme Court of the United States, at the December 
 term, in 1865, grew out of expenses incurred in refloating 
 a stranded ship, and involved a similar question. The 
 case was this : The ship Eachel, laden with a general 
 cargo, bound from Liverpool to New York, after arriving 
 inside of Sandy Hook in a heavy gale, on the 21st day of 
 10 
 
146 GENERAL AVERAGE. 
 
 September, 1859, struck on the West Bank in the lower 
 part of the harhor of New York, and became fast. The 
 master employed steam tugs for two days to get the ship 
 off without lightening ; but failing in this, he lightened 
 the vessel by discharging the cargo in lighters, and trans- 
 ported it to its destination. The agents of the ship re- 
 ceived the cargo, and delivered it to the consignees upon 
 receiving from them the customary Average bonds. The 
 cargo being discharged, or all but mere remnants of it, 
 and the ship settling fast in the sand, and the tide ebb- 
 ing and flowing in her, the agent of the ship refused to 
 authorise further expenses, and the captain and crew 
 abandoned the ship, and left her where she lay, in charge 
 of the agent of the underwriters on the ship, who had 
 arrived at the ship a day or two before, and who had 
 already procured oil casks to buoy the ship. The agent 
 of the underwriters continued his endeavors to refloat the 
 ship until the 11th of November following, and on that 
 day, by the assistance of two steamers, he succeeded in 
 getting her free, and towing her to a marine railway for 
 repairs. Examination there made showed that there 
 were remnants of the cargo still left on board, and upon 
 that discovery they were discharged and delivered to the 
 consignees. The suit was brought by the ship-owner 
 against the consignee of a part of the cargo to recover 
 in General Average his Contributive share of the expen- 
 ses of refloating the ship. It was conceded that the de- 
 fendant was liable to Contribute in General Average, to 
 the expenses incurred in refloating the ship up to the 
 time when the master abandoned the ship, and the agent 
 
EXPENSES. 147 
 
 of the underwriters on the ship took charge. But the 
 question was, whether he was liable to the expenses sub- 
 sequently incurred under the management of the agent 
 of the underwriters. 
 
 Mr. Justice Clifford delivered the opinion of the court, 
 which decided as follows : 
 
 " 1. Except when the disaster occurs in the port of 
 destination, or so near to it that the voyage may be. re- 
 garded as ended, the master, if the goods be not perish- 
 able, has the right, and, if practicable, it is his duty, to 
 get off the ship, reload the cargo and prosecute the voy- 
 age to its termination." 
 
 " 2. When the whole adventure is saved by the mas- 
 ter, as the agent of all concerned, the consignments of 
 the cargo first unladen and stored in safety are not relie- 
 ved from Contributing to the expenses of saving the ship, 
 provided the ship and cargo were exposed to a common 
 peril, and the whole adventure were saved by the master 
 in his capacity as agent of all the interests, and by one 
 continuous series of measures." 
 
 " 3. The rule is, that if the ship also be saved by the 
 same continuous series of measures as those by which 
 the cargo was saved, then the cargo is bound to the ship, 
 and the ship to the cargo. They are so bound because 
 the liability to such Contribution continues until the part 
 of the adventure claimed to be exempted is completely 
 separated from the residue, so as to leave no community 
 of interest remaining." 
 
 " 4. The general rule is, that when the cargo contin- 
 ues under the control of the master, so that it may be 
 
148 GENERAL AVERAGE. 
 
 taken on board for the purpose of prosecuting the voyage, 
 the common interest remains." 
 
 " 5. The plaintiffs in this case are not entitled to re- 
 cover, because it appears not only that the cargo was 
 delivered to the consignees, hut that the series of mea- 
 sures employed by the master, and through which he 
 saved the cargo, failed altogether to save the ship." 
 
 " 6. They cannot recover, because the expenses in 
 controversy were not incurred by the master, but by the 
 underwriters of the ship, after the master had saved the 
 cargo and abandoned the ship, and all endeavors to 
 save her from disaster." 
 
 " 7. When the master abandoned the ship and all 
 endeavors to save her, the separation between the ship 
 and cargo became complete, and all community of inte- 
 rest was gone." 
 
 Judge Marvin, delegate to the International Congress 
 held in England in 1864, in his report to the Chamber of 
 Commerce and Board of Underwriters of New York, very 
 ably reviews this subject, "Community of interest," and 
 referring to the decision we have last cited, says : " Not- 
 withstanding some uncertainty in the precise meaning 
 of the language employed by the Supreme Court in its 
 decision in the case of Mc Andrews v. Thatcher, yet I 
 think this case, when interpreted by the case of Nelson 
 V. Belmont, does decide that a complete separation of the 
 cargo from the ship by the master or owner, not again 
 to he returned to the ship, dissolves the community of in- 
 terest between them, whether such separation take 
 place at a distance from the port of destination or by a 
 
EXPENSES. 149 
 
 delivery by lighters at the port of destination, and that 
 consequently all General Average charges thereafter 
 cease. Such a separation, when it takes place at a dis- 
 tance from the port of delivery, is equivalent to the aban- 
 donment of the voyage ; and when it takes place by a 
 delivery at the port of destination, it is equivalent to a 
 completion of the voyage as to cargo, which can no long- 
 er derive any benefit from the expenditure of money on 
 account of the ship. The abandonment of the voyage is 
 also held to dissolve the community of interest." 
 
 " The objection to considering a separation of the cargo 
 from the ship, not again to he returned to it, or the aban- 
 donment of the voyage, as the point of time when a dis- 
 solution of the community of interest takes place, is, that 
 the standard is variable and uncertain, depending as it 
 does upon the intentions of the master. It also gives the 
 master the opportunity to delay for months in a port ot 
 refuge in order to make up his mind whether to abandon 
 his voyage or not, and upon the abandonment and tran- 
 shipment of the cargo by another vessel, to charge the 
 expenses of the delay, including the wages and provis- 
 ions of his crew, to the account of General Average, 
 when, at the same time, the cargo has derived no possi- 
 ble benefit, but has probably sustained a damage from 
 such delay. In the case, too, of a stranded ship, it gives 
 him the opportunity, and indeed encourages him, to ex- 
 pend large sums of money in trying experiments to re- 
 float the ship, knowing that, notwithstanding his failure, 
 he will be reimbursed the expenditure in General Aver- 
 age, out of the cargo, which has derived no benefit what- 
 ever from the expenditure. It appears to me that com- 
 
150 GENERAL AVEEAGE. 
 
 mon benefit realized, and not common benefit intended 
 merely, is the very foundation of common Average, and 
 as the cargo derives no benefit from the delay, or from 
 the fruitless experiments in the cases mentioned, it ought 
 not to be held to contribute to the expenses. If the de- 
 lay or the experiments result in success, and a reship- 
 ment of the cargo on board and a resumption of the 
 voyage, then the cargo does derive a benefit from the ex- 
 penditures in common with the ship and freight, by 
 being transported in the ship to its port of destination." 
 
 " It appears to me it would be wiser to look more to 
 the/fflc? and less to the intention of the master, and to 
 say, that the separation of the ship and cargo during the 
 voyage, followed by a subsequent reunion, for the pur- 
 pose of prosecuting the voyage, does not suspend or dis- 
 solve the community of interest between them; but that 
 such separation, not followed by a reunion, for the pur- 
 pose of prosecuting the voyage, does dissolve such com- 
 munity of interest, and puts an end to any further Gren- 
 eral Average charges." 
 
 England. — The difference between the English and 
 the American customs in relation to the point of time 
 when the community of interest, as it regards the ad- 
 justment of Average, should be considered as broken up, 
 appears to be this. The English custom is based on the 
 idea that the motive or inducement to the General Ave- 
 rage act or expenditure must be the common "physical 
 safety" of the ship and cargo at the time, without regard 
 to the successful completion of the voyage, by the arri- 
 val of the ship and cargo together at their port of desti- 
 nation. It is based on the common safety, not ultimate 
 
EXPENSES. 151 
 
 benefit. Hence, by the English custom, the landing and 
 storing of the cargo, in a port of refuge, interrupts or sus- 
 pends the community of interest between the ship and 
 cargo, and consequently, all General Average charges 
 cease, until they are again reunited for the purpose of pro- 
 secuting the voyage. The cargo pays its own storage, and 
 the freight pays the expense of reloading. The ship 
 pays the expenses incurred by it, including the wages 
 and provisions. The landing and storing of the cargo 
 of a stranded ship, by the English law, interrupts or sus- 
 pends the community of interest between the ship and 
 cargo, so as to exclude from General Average, the ex- 
 penses subsequently incurred by the master, in the pros- 
 ecution of any new measures, in getting the ship ofi", not- 
 withstanding the cargo may remain under the control of 
 the master, and he may afterwards take it again on 
 board, and carry it to its port of destination. Joh v. 
 Langton, 6 Ellis & Black, 779 ; Judge Marvin's Rep. 
 
 58. 
 
 Belgium.— The Belgian custom as to when the commu- 
 nity of interest is dissolved or broken up, is the same as 
 the English, with, however, this exception, that by the 
 Belgian custom, the landing of cargo alone, interrupts 
 or suspends the community of interest between the ship 
 and cargo. 
 
 France. — Article 400 of the Code de Commerce reads: 
 " And in general, damages voluntarily suffered and ex- 
 penses incurred, after deliberation and consultation with 
 the crew, for the common benefit and safety of the ship 
 and goods from the time of their loading and departure 
 
152 GENERAL AVERAGE. 
 
 to their arrival and unloading, are General Average." 
 
 This article is diversely interpreted. The last inter- 
 pretation placed upon it by the Court of Cassation seems 
 to strike at the root of a very large class of cases before 
 considered, in France and in other countries, to he Gene- 
 ral Average. In the case of the ship nAmiral Casey 
 (cited by Judge Marvin in his Report on International 
 General Average) the court said : " Every expense incur- 
 red for the ship benefits the cargo ; but in order that it 
 may be classed in General Average, it must proceed not 
 from a voluntary act, isolated and special to the mer- 
 chandise or to the ship, but must be incurred simultane- 
 ously for the common safety of the ship and cargo ; and 
 such is the express meaning of article 400 of the Code." 
 " This interpretation," says Judge Marvin, " is undoubt- 
 edly in strict conformity to the letter, but contrary to the 
 spirit, of the law as interpreted by Valin, Pardessus, 
 Boulay, Patty and other distinguished luminaries of the 
 law. The employment of the word 'simultaneously,' as 
 used by the court, wonderfully restricts and limits the 
 range of the doctrine of General Average, and leaves it a 
 mere shell without much kernel. 
 
 Whether specie, hanli hills, and goods of passengers 
 he held liable to contribute in General Average for 
 jettison, or other sacrifice. Also, whether the expense 
 of landing specie when a vessel is wrecked or properly 
 condemned at a port of refuge, he General Average. 
 
 United States. — By the Rhodian law, every thing on 
 
EXPENSES. 153 
 
 board the vessel saved contributed to make up the loss, 
 and in the essay on that law concerning jettison, trans- 
 lated from the digests and code of Justinian, it is said : 
 Several merchants had loaded various quantities of goods 
 on board the same ship, in which were several passen- 
 gers, both freemen and slaves. In consequence of a 
 violent storm, a jettison became indispensable. It was 
 asked whether all must contribute to the jettison, and 
 whether those must contribute who had goods on board 
 the vessel, such as pearls, jewels &c., and whether 
 there must be a contribution for the heads of freemen, 
 and by what action it could be enforced. It was deter- 
 mined that all must contribute who had an advantage 
 from the jettison, because it was a tribute due by those 
 things which had been preserved, and therefore that the 
 owner of the vessel was bound to contribute for his share; 
 the amount of the jettison must be apportioned accord- 
 ing to the value of the goods. It has also been agitated 
 whether an estimation is to be made of the clothes and 
 jewels of every person; and it was unanimously agreed 
 that they should contribute. Mr. Arnould thus announ- 
 ces upon what property Contribution is to be levied : — 
 " all which is ultimately saved out of the whole adven- 
 ture (^. e. ship, freight and cargo), contribute to make 
 good the General Average loss, provided it had been ac- 
 tually at risk at the time such loss was incurred, but not 
 otherwise, because, if not at risk at the time of the loss, 
 it was not saved thereby." (2 Arnould, 921). Gold, 
 silver, jewels, precious stones and all other small articles 
 of value, unless carried about the person, contribute. 
 He, says Mr. Phillips, thinks that bank notes, being not 
 
154 GENEBAL AVERAGE. 
 
 SO much property as evidences of property, ought not to 
 contribute. Nesbett, he observes, considers that they 
 should, and his seems to be the better opinion, for they 
 are convertible into money and are saved by the sacri- 
 fice from becoming valueless (2 Arnould, 923). Mr. Phil- 
 lips says : As much of the cargo on board at the time of 
 making the jettison, or other sacrifice for the general 
 safety, as finally arrives at the port of delivery, or comes 
 to the use of the owner, contributes in General Average. 
 Mr. Beneche says : Passengers ought to contribute for 
 their trunks and luggage, because if cast overboard 
 their value is allowed for. Phillips says, this reason 
 does not appear very satisfactory — a plainer one seems 
 to be, that the baggage is benefitted by the jettison in 
 proportion to its value, in comparison with its whole val- 
 ue at risk, precisely as any other property is so. Eme- 
 rigon is of the opinion that of right and upon general 
 principles, everything belonging to passengers, even to 
 their wearing apparel, is liable to Contribution. Valin 
 considers the wearing apparel, jewels, rings, ornaments 
 and, in general, whatever a passenger habitually wears, 
 uses or carries about his person, during the voyage, in- 
 cluding his change of linen, to be exempted from Contri- 
 bution, by the concurrent authority of the ordinances 
 and writers. And Mr. Phillips says this seems to be the 
 general practice. He adds : If any part of the baggage 
 be of sufficient value to be worth bringing into Contribu- 
 tion, no reason has been given why it should not contri- 
 bute a part of the contributing interest. The reason for 
 exempting wearing apparel and the like seems to be that 
 the persons of those on board are not brought into Contri- 
 
EXPENSES. 155 
 
 bution, and the exception extends to things which are 
 merely necessary to the person. This discussion shows 
 how universally all that is on board ship, at the time of 
 the jettison, and saved from the impending peril, is call- 
 ed upon to contribute, and the only exception is the per- 
 sons on board and what is necessarily attached to them. 
 And the reason given for the exemption of the person on 
 board, is, that it is impossible to estimate the value of free- 
 men. Slaves, on board at the time of jettison, have been 
 valued and made subjects of Contribution. Park, Jus- 
 tice, in Brown v. Stapyleton (4 Bing. 119), says : The 
 rule is that all merchandise put on board for the purpose 
 of traffic is liable to be brought into Contribution, and 
 in merchandise is included all property of great value, 
 unless attached to the persons of the passengers, but pro- 
 perty so attached does not contribute. 
 
 It may therefore be considered as settled by text wri- 
 ters and by judicial authority, that all property, on board 
 at the time of the jettison and saved, unless attached to 
 the persons of the passengers, is to be brought into Con- 
 tribution. In practice, however, the effects of passen- 
 gers, not paying freight, do not contribute. 
 
 In Harris v. Moody Sf Telfair, 3 N. Y. Reps., 266, it 
 was held, that bank bills are to be regarded as property, 
 the goods and chattels of the owner thereof; and in case 
 of loss, the owner is entitled to recover the nominal or 
 par value thereof, in the absence of any proof of depreci- 
 ation with the interest thereon. See also, Sevan v. 
 Bank of the United States, 4 Whart., 301; Nelson y. 
 Belmont, 5 Duer, 310 ; Millar on Ins., 344, 345 ; Par- 
 sons^ Maritime law, 323, 
 
156 GENERAL AVERAGE. 
 
 Hogeboom J. in Harris v. Moody, 283, said : " It is 
 said that subjecting bank bills to liability is the introduc- 
 tion of a new principle, and would be disastrous if prac- 
 tically carried out, because if liable to contribute when 
 saved, they are equally entitled to Contribution if lost, 
 and that the large sums and extraordinary values thus 
 brought into the account for Contribution would absorb 
 the price of less valuable property, and therefore dictate 
 the rejection of the principle. This consideration can- 
 not be indulged. In the first place, jettison of articles of 
 such light weight and such great value, is not permit- 
 ted except in cases of emergency, and therefore they are 
 much more likely to suffer, than to exact. Contribution. 
 In the next place there is no practical injustice in allow- 
 ing and enforcing Contribution according to a just valu- 
 ation." Davies J., in the same case, said : " It would 
 seem to be well settled, that bank bills are to be regarded 
 as property, the goods and chattels of the owner thereof; 
 and that, in case of loss, the owner is entitled to recover 
 the nominal or par value thereof, in the absence of any 
 proof of depreciation, with the interest thereon." Ing- 
 ram J. did not concur in the opinion of the other judges, 
 that bank bills are property, under the law relating to 
 Contribution and Average. Upon that point he was for 
 reversal. All the other judges being for affirmance, 
 judgment was affirmed. 
 
 In Nelson v. Belmont, 5 Duer, 310, the ship Galena 
 being on fire in her hold at sea, the master transferred a 
 quantity of specie on board a Danish brig, and both ves- 
 sels proceeded into a port of refuge, where the specie 
 was landed and deposited in bank by the master of the 
 
EXPENSES, 157 
 
 ship on board of which it was originally shipped. Fire 
 engines were then employed to pump water into the ship 
 to extinguish the fire, whereby the ship and cargo were 
 damaged. The ship was unloaded, the cargo stored, and 
 the voyage afterwards abandoned by the master. It was 
 decided by the court, that the specie was liable to con- 
 tribute, in General Average, to the damage done to the 
 ship and rest of cargo by the water pumped into the ship 
 to extinguish the fire, to the expenses of the fire engines 
 and of unloading and storing the cargo, and the wages 
 and provisions of the crew up to the time the master 
 abandoned the voyage. Justice Selden, in delivering 
 the opinion of the court, admitted the rule to be, that 
 goods, or any interest, were not liable to contribute for 
 expenses incurred subsequently to their being at risk ; 
 but he argued, that the specie was at risk — ^the risk of 
 the loss of the voyage. " In determining this question," 
 he said " it will be necessary to recur to the principle 
 upon which General Average is based. That principle 
 is, that where several persons are engaged in a joint 
 enterprise, whatever is necessarily done for the common 
 benefit ought to be done at the common expense. It is 
 of the essence of this principle that it looks upon the en- 
 terprise as a whole, as an entirety. It is true, that in 
 apportioning the loss, regard is had to the interests of 
 the respective parties. But in other respects, no sepa- 
 rate interest is recognised. Until, therefore, some por- 
 tion of the property has been separated from the rest, so 
 as no longer to have any interest in common with it, 
 every risk which affects the enterprise as a whole must 
 
158 GENERAL AVERAGE. 
 
 be regarded as affecting each portion of the property en- 
 gaged." 
 
 " Such separation may, and frequently does occur, in 
 the course of a voyage. For instance, in a case of jetti- 
 son, the goods jettisoned do not contribute for any dam- 
 age afterwards done to the residue of the cargo. If the 
 goods forming a part of the cargo be sold for the neces- 
 sities of the ship, or be delivered to the owner or con- 
 signee either before or after the arrival of the vessel at 
 its port of destination, and before the occurrence of a 
 General Average loss, they do not contribute. So, a sep- 
 aration may occur, through the withdrawal, by the owner 
 of a portion of the goods, before the termination of the 
 voyage. This every owner has in general a right to do, 
 at any time, on payment of freight for the entire voyage, 
 and the goods thus withdrawn are exempt from contri- 
 bution for any subsequent loss, upon the principle that 
 it is the goods at risk only which contribute." 
 
 " My conclusion, therefore, is, notwithstanding the 
 case of Bevans v. The United ^States Bank, that if the 
 owner of any portion of the cargo, even after a peril has 
 occurred, and after a series of measures to avert has been 
 commenced, can succeed in so separating his own pro- 
 perty from the rest that it is no longer in any sense at 
 risk, he cannot be held liable to contribute to the ex- 
 penses subsequently incurred. But, in order rightly to 
 apply this rule, it is necessary to ascertain the full scope 
 of the term 'at risk.'" 
 
 " Physical destruction, or direct physical injury to 
 the ship, or cargo itself, is not the only risk to which 
 
EXPENSES. 159 
 
 property so situated is exposed. Its value depends, or 
 at least is supposed to depend, in some degree upon the 
 successful prosecution of the voyage. Whatever threat- 
 ens the voyage, therefore, is a peril to the entire proper- 
 ty. UntU that he broken up, unless the property claimed 
 to be exempt be not only separated from the rest, and 
 put in a place of safety, but entirely disconnected with 
 the enterprise, it must be regarded as still at risk, and 
 liable to contribute. If the voyage be not abandoned, 
 and the property, although separated from the rest and 
 removed from the ship, be still under the control of the 
 master, and liable to be taken again on board for the 
 purpose of being carried to its destined port, the rela- 
 tions of the several owners are in no respect changed. 
 The common interest, must be done at the common ex- 
 pense." 
 
 " The result of these principles when applied to the 
 present case is plain. It turns entirely upon the nature 
 and object of the separation of the specie from the ship 
 Galena and from the residue of the cargo, when it was 
 placed on board of the Danish brig. I entertain no 
 doubt that such a severance as would have exempted 
 it from all liability to contribute to the subsequent ex- 
 penses, might have been effected by the master of the 
 vessel in the same manner as by the owner himself, had 
 he been present. The master is the agent and represen- 
 tative of each of the owners in respect to their several 
 shares of the property under his charge, and has the 
 same right which the owners themselves would have to 
 take measures for its preservation." 
 
 " If, therefore, the captain of the Galena had put the 
 
160 GENEKAL AVERAGE. 
 
 specie on board the brig, not in any event to be returned 
 to him, but to be taken by the brig to its port of destina- 
 tion, and the latter had then been suffered to pursue its 
 course, the specie would not have been subject to Con- 
 tribution for any subsequent expenditures to save the 
 Galena. And notwithstanding the brig was employed 
 to attend the Galena to Charleston, if it had been dis- 
 tinctly understood between the two commanders that 
 the specie was committed entirely to the custody of the 
 Danish captain, and was in no event to be returned to 
 the care of the captain of the Galena, it would then also 
 have been exempt." 
 
 ' ' But the facts do not warrant this assumption. The 
 case states that ' the specie was put on board the brig 
 because it was safer there, as, in case the fire broke out, 
 it might be too late to transfer it from the ship.' The 
 brig was to accompany the Galena to Charleston, and 
 there is nothing from which it can be inferred that it 
 was the intention of the captain of the latter to relin- 
 quish his control of the specie. The fact that he reclaim- 
 ed, and took it from the brig as soon as he arrived in 
 Charleston tends strongly to the opposite inference. It 
 never ceased, therefore, up to that time, to constitute a 
 part of the cargo of the Galena ; and if the fire had been 
 previously extinguished and the voyage resumed, it 
 would, of course, have been again taken on board and 
 carried forward in her." 
 
 " The case states, that while at Charleston the captain 
 of the Galena determined to abandon the voyage. It 
 follows, from what has been said, that up to that time 
 
EXPENSES. 161 
 
 the specie remained liable to contribute to the General 
 Average. 
 
 In England the expense of landing specie when a ves- 
 sel is wrecked or properly condemned at a port of refuge, 
 is, in practice charged to underwriters on specie only 
 which do not pay for landing rest of cargo. 
 
 Holland. — The Dutch Commercial Code declares, that 
 coined money shall contribute in General Average, ac- 
 cording to the exchange at the place where the voyage 
 terminates. 
 
 Agents commission, or per centage on value of cargo 
 landed at a port of refuge, commonly called " Cus- 
 tody Commission." 
 
 United States. — If the master, when necessary, em- 
 ploy an agent or consignee, in a port of distress, to advise 
 and assist him in taking care of the property or in re- 
 pairing the vessel, such agent is entitled to be paid a 
 reasonable compensation for his services, usually called 
 by merchants, a commission. The master has no author- 
 ity to agree to pay an unreasonable commission ; a pro- 
 per charge for storage and a regular commission for the 
 general business of the ship under repair, will afford in 
 most instances, a fair and adequate remuneration. In 
 some ports the commission on the value of cargo landed 
 is very exorbitant. When unloading is absolutely neces- 
 sary, an intelligent ship-master will always ascertain 
 before he proceeds to discharge his cargo, what this com- 
 mission will be, and should an unreasonable sum be ro- 
 ll 
 
162 GENERAL AVERAGE. 
 
 quired, he can obviate the difficulty by keeping the con- 
 trol of the cargo in his own hands, and hiring store-room 
 himself. The master should be careful not to consign 
 his vessel in a port of refuge, until he have fully informed 
 himself as to the charges, commissions and all other ex- 
 penses that are likely to arise in consequence of his doing 
 so. This he can generally do through the agent of the 
 underwriters, whose duty it is to render the ship-master 
 such advice and assistance as he may need. If the mas- 
 ter neglect to consult the underwriters' agent, but con- 
 sign his vessel at once, agreeing to pay the customary 
 commissions, which, we repeat, are usually very exorbit- 
 ant, a suspicion will, in many instances, be cast upon 
 the integrity of his transactions, which may be found 
 exceedingly diflSicult to remove. 
 
 The Chamber of Commerce of New York has recom- 
 mended to be charged by the consignee, in the absence 
 of any agreement to the contrary, a commission of two 
 and a half per cent, on the value of the invoice, for land- 
 ing and reshipping goods from vessels in distress. What- 
 ever weight this recommendation may have as evidence 
 of what is a reasonable charge to be made for such servi- 
 ces when rendered in that city, it has no weight what- 
 ever as applied to the like services, when rendered in 
 other places. The law- merchant has fixed no particular 
 rate of compensation for such services, but it allows a 
 quantum meruit determined in each case by its own 
 facts. It is not competent for any Chamber of Commerce 
 or any State Legislature to introduce into the Commer- 
 cial code any alterations or new provisions, which shall 
 affect the interests of non-residents ; and, certainly, the 
 
EXPENSES. 163 
 
 general practice of allowing to the master's consignee a 
 commission on the value of the invoice of a cargo for 
 landing and reshipping it, is not the wisest mode of de- 
 termining his compensation, in many parts of the world. 
 In Mason v. The Jackson Ins. Co., tried in the Superior 
 Court of the city of New York, a few years since, in 
 which the Average statement showed that the master's 
 consignee at New Orleans had charged $2,400 87, heing 
 two and a half per cent, commission on the value of the 
 cargo, for landing and reshipping it, the ship heing in 
 distress, the jury found a sealed verdict, in which they 
 said they did not hesitate to pronounce the commission 
 charged, " a most exorhitant and unreasonable charge." 
 The commission on value of cargo landed and reship- 
 ped, when charged, is, in practice, allowed in Greneral 
 Average. 
 
 Expense of Surveys. 
 
 United States. — On arrival at an intermediate port in 
 distress, the first survey held on the vessel, as it regards 
 the collective interests, is Greneral Average. So are all 
 other surveys requisite for the instruction of the master 
 as to the measures to be pursued for the common inte- 
 rest. 
 
 When surveyors are intelligent and faithful in the 
 discharge of their duties, uninfluenced by private or lo- 
 cal interests, their report is entitled to credit, and is a 
 very useful document in the settlement and adjustment 
 of losses. But, the master is, in no case, bound to follow 
 
164 GENERAL AVERAGE. 
 
 the recommendation of surveyors, nor will their recom- 
 mendation relieve him or his owners from any portion of 
 their just and legal responsibility for his acts. Under 
 the impression that surveys are necessary to j astify the 
 acts of the master, and that the cost of them is General 
 Average, he permits the consul or agent to send on 
 board his vessel several sets of men, at different times, 
 going through all the forms of written appointment, re- 
 turn and record ; when, perhaps, only one survey and 
 one report, comprising distinctly what they saw and re- 
 commended, is all that is needful. It is obvious that 
 this practice of multiplying papers, is done not so much 
 with a view of benefitting the master or his owners, as 
 with a view of justifying charges. Not only are the 
 consul's and agent's own fees thus enhanced but, inci- 
 dentally, more surveys are called, and more reports made 
 and authenticated, than are useful or needful. This prac- 
 tice has increased so much of late years, and reflects so 
 much on the skill, judgment and intelligence of the mas- 
 ter, that he who wishes to advance his reputation, espe- 
 cially with underwriters, should take every precaution 
 to check the abuse. No vessel can enter a South Ame- 
 rican port in distress, and escape the payment of four or 
 five hundred dollars to surveyors and consular ofiicers, if 
 the master quietly submit to the imposition. And it is 
 to be regretted, that this practice prevails to a greater 
 extent amongst the representatives of the United States 
 in foreign ports, than with others. Attempts have been 
 made to reform this abuse by Federal Legislation, but as 
 yet without success. 
 
 The consul requires the master to address him a writ- 
 
EXPENSES. 165 
 
 ten request for survey. He then makes an appointment 
 of two or more persons and these persons examine the ves- 
 sel and make a written report, for which service the 
 consul pays them a large fee. The consul records the 
 master's letter, the act of appointment, and the report, 
 makes a report of the authenticity of each, and two or 
 three copies, all of which he authenticates, and charges 
 for each certificate. Thus a mere preliminary survey is 
 made to cost from seventy-five to one hundred dollars, 
 when the whole thing might and should be accomplished 
 for ten dollars. 
 
 There is neither law nor necessity for the interference 
 of a consul of the United States in the appointment of 
 surveyors. Any competent men may be selected, with 
 the approbation of the master, and he may agree with 
 them as to fees, in the same manner as he may bargain 
 for any thing else. Whenever their reports are finally 
 made up, it will be expedient to have one certificate 
 from the consul that the surveyors appeared before him 
 and verified their acts, but even this is not absolutely 
 necessary. 
 
 In nearly all the considerable sea-ports in the world, 
 the underwriters have appointed merchants of experi- 
 ence as their agents, with instructions to ofier immedi- 
 ate assistance, and such advice as may be required by 
 ship-masters who may be so unfortunate as to meet with 
 disaster. It will greatly facilitate the master, in all his 
 transactions in a port of refuge, if he consult the under- 
 writer's agent, who is, in general, a merchant of well 
 known respectability while the fact of the agent's appro- 
 
166 GENERAL AVERAGE. 
 
 ving of the surveyors selected by the master and his pre- 
 sence at the holding of the survey, will be a sufficient 
 guaranty of the honesty of the master's intentions. 
 
 England. — If the ship be injured, or supposed to be 
 injured when she enters a port of refuge, in nearly all 
 oases a survey is held, on her arrival there, by compe- 
 tent nautical men, who recommend, after their inspec- 
 tion, the course necessary to be pursued, whether to dis- 
 charge the cargo, repair damages, or continue the voyage 
 in her then condition. This first survey regards the col- 
 lective interests, and is, therefore. General Average. 
 Hopkins, 46. 
 
 France. — The cost of surveys of ship or cargo is ap- 
 portioned or divided according to the character of the 
 subject surveyed or the damage. The cost of surveys of 
 Particular Average to the ship is particular, of General 
 Average, general, being accessorial to the nature of the 
 original cause of survey. Cauvet, 374. 
 
 Expense of shipping an anchor and chain after a chain 
 has parted. 
 
 United States. — General Average, less usual expense, 
 if the necessity be urgent. Other countries the same. 
 
EXPENSES. 167 
 
 Cost of an unsuitable anchor and chain supplied under 
 such circumstances when no suitable anchor and chain 
 are procurable there, or it forms no part of the master's 
 duty to get them there. 
 
 General Average, less proceeds. 
 
 Hire of an anchor and chain under such circumstances, 
 to avoid purchasing an anchor and chain. 
 
 General Average. 
 
 Expense of freeing the master when arrested for his 
 own, or his owner's debts. 
 
 United States. — Where a master is arrested in the 
 course of the voyage for a debt due from himself and his 
 owners, but not the subject of Contribution in General 
 Average on the pending voyage, and the goods of a ship- 
 per are sold to raise funds to pay the debt and discharge 
 the master from arrest, the interest of the other shippers 
 in the discharge of the master is not such as to subject 
 them to Contribution for the goods so sold. The remedy 
 is against the master and owners. 
 
 England. — Not General Average. Dobson v. Wilson, 
 3 Camp., 480. 
 
 France, — Not General Average. 
 
168 GENERAL AVERAaE. 
 
 OOl^TRIBUTORY INTERESTS. 
 Ship. 
 
 United States. — The true value of the ship for Contri- 
 bution, is the amount that her hull, masts, yards, sails, 
 rigging and stores would produce after the sacrifice is 
 made, with the addition of the amount made good by 
 the General Average Contribution. Her contributory 
 value, in fact, is her worth to the owners in the state in 
 which she arrives. 
 
 In case of voluntary stranding^ the measure of loss is 
 not the value at the commencement of the risk, as in 
 case of total loss under a policy upon the ship, but the 
 value at the time when the ship is run aground. The 
 inquiry, therefore, will be, what the ship would have 
 been worth to the owner at that particular time, if he 
 could have had it in security, free from any impending 
 peril. 
 
 England. — The value of the ship for Contribution is 
 her value at the time of her arrival at the termination 
 of the voyage ; but if she have met with damage and 
 have been repaired before arriving at her port of destin- 
 ation, the value to be taken, is, her worth previous to such 
 repair. 
 
 Where parts of the ship have been sacrificed for the 
 general benefit, and the cost of them is made good in 
 the Average Contribution, the amount of such honifica. 
 
CONTRIBUTORY INTERESTS. 169 
 
 tion is to be added to the value of the ship, upon the 
 same ground that the value of goods jettisoned must be 
 made to contribute to the jettison itself. Hopkins, 77. 
 
 In France," Portugal and Belgium, the ship and freight 
 contribute for one half their respective values, and the 
 cargo for the whole. If the ship have been repaired sub- 
 sequent to the accruing General Average, it is its half- 
 value in its antecedent condition of damage which is 
 taken in practice as the basis of Contribution. The favor 
 which the law shows to the ship-owner in requiring him 
 to contribute on the half- value only of the ship, and 
 freight, while the cargo owner is compelled to contribute 
 on its total value, has the effect, says M. Cauvet (§426), 
 " to encourage captains to multiply sacrifices of the rig- 
 ging of the ship, foreign captains taking advantage of 
 the law as readily as the French." 
 
 Holland. — The Dutch Commercial Code, sec. 727, pro- 
 vides that General Average shall be apportioned for Con- 
 tribution, upon the value of the ship in the condition in 
 which she arrived in her damaged state, adding thereto 
 what is allowed by way of indemnity for General Ave- 
 rage. 
 
 Germany. — The German General Mercantile Law, 
 §718, declares the ship with its appurtenances contri- 
 butes : 
 
 1. According to the value, in the condition in which 
 it was at the end of the voyage, when the discharge was 
 commenced. 
 
 2. With the amount taken as General Average on 
 the ship and its appurtenances. 
 
170 6ENEEAL AVEEAGE. 
 
 From the value No. 1, is to be deducted the existing 
 value of the repairs which have been done, and of those 
 articles which have been added since the occurrence of 
 the casualty. 
 
 Sweden. — The Swedish Maritime Code of Feb. 23, 
 1865 provides §159. The vessel j)articipates in the 
 General Average according to — 
 
 1. The value of the vessel, after the damage has oc- 
 curred, estimated by competent appraisers, appointed in 
 accordance with §151 ; and, 
 
 2. The amount of the damage done to the vessel and 
 its appurtenances, which, according to §152, is to be 
 compensated for in General Average. 
 
 The damage ceases n the port where the vessel parts 
 with her cargo, or in the port it may be necessary for the 
 vessel to enter in order to repair. 
 
 Norway. — The Norwegian Maritime Code of March 
 24, 1860, provides : 
 
 § 75. The vessel contributes according to its value in 
 the condition in which it arrives in port, whether it be 
 the port of refuge or of its destination, with the addition 
 of the sum which, after the deduction mentioned in §74, 
 has been made, is taken into General Average as a com- 
 pensation for damage to the vessel and its appurtenan- 
 ces. 
 
 The value of the vessel is determined by appraise- 
 ment, unless it be sold as wreck, in which case the sum 
 received from the sale is to form the basis. In order to 
 avoid the expense which may be occasioned by an ap- 
 
CONTRIBUTORY INTERESTS. 171 
 
 praisement, it shall be allowable for the master and the 
 consignee of the cargo to agree upon taking the value at 
 which the vessel is insured, less the damage sustained, 
 for a basis ; or in case the vessel be not insured, then to 
 agree upon some reasonable value. 
 
 Antwerp. — General Averages are apportioned upon 
 l;he value of the cargo, the half of the value of the ship, 
 and the half of the freight, according to their values in 
 the port of destination. 
 
 The value saved is the limit of Contribution. The 
 ship-owner is not compelled to contribute beyond the 
 value of his ship and the amount of freight, nor the pro- 
 prietors of the cargo beyond the value saved of their 
 merchandise. 
 
 Italy. — The vessel, by Italian law, contributes on one 
 half of her value, as follows : 
 
 Ship, estimated at - - - Livres 86,000 
 less repairs 28,000 
 
 Livres 56,000 
 
 One half is Livres 28,000 
 
 The above is from an adjustment made at Genoa, 
 1862. 
 
 Value of cargo for Contribution. 
 
 United States. — When the Average is adjusted at the 
 port of discharge, the practice is, to take the actual val- 
 ue of the cargo at the market price, stripped of all the 
 
172 GENERAL AVERAGE. 
 
 charges attached to it, as freight, duty and landing char- 
 ges. And if a jettison have taken place, then the estima- 
 ted proceeds of the goods jettisoned, taken in like manner, 
 should be added to the net value of the cargo saved. 
 The goods must contribute, according to their value, in 
 the state in which they arrive at that place. The same 
 rule is to be followed under similar circumstances for 
 disbursements, if the goods arrive in a sound state, or if 
 they were diminished in value by internal decay, or ex- 
 ternal damage, previous to the period at which the dis- 
 bursements were made. But, if damaged goods be sold 
 at the intermediate place to prevent their further des- 
 truction, the net amount for which they were sold at that 
 place, after deducting their special charges, will be 
 the sum for which they must contribute to General Av- 
 erage. 
 
 The value of the cargo, in fact, is, what it has produ- 
 ced, or would produce, at, as nearly as possible, the time 
 of its arrival. If it be actually sold, there can be no 
 truer value given for Contribution than the net proceeds 
 of the sale — that is, the gross amount stripped of freight, 
 duty and landing charges. 
 
 If the goods be not sold, an estimate must be formed 
 of their value, and they must be treated in the same 
 manner as if they had been really sold. This is called a 
 pro forma account sale. 
 
 England. — The rule in England is the same as that of 
 the United States, as to value of cargo for Contribution. 
 Goods contribute on their actual net value, i. e. on the 
 market price at the port of discharge, free of all charges 
 
CONTRIBUTORY INTERESTS. 173 
 
 for freight, duty and expenses of landing. 
 
 The value of goods jettisoned is to he added to the 
 value of what arrives ; hut to prevent mistakes in the 
 adjustment, it is hotter to show the distinction hetween 
 the two. 
 
 In France, Portugal and Belgium, the cargo contrih- 
 utes on its whole or real value at the port of discharge. 
 Cauvet §426. Rogron 402. The French Commercial 
 Code, art. 417, declares " The Contrihution for the pay- 
 ment of the losses and damages, is made on the goods 
 cast away, and on those saved, and on one-half the value 
 of the vessel and freight, in proportion to their value res- 
 pectively at the port of delivery." 
 
 And art. 421 declares : " The effects laden on the 
 deck of the vessel contribute if saved. If they he thrown 
 overboard or damaged by the jettison, the owner is not 
 admitted to make a demand for Contribution ; his only 
 remedy is against the master." 
 
 HoLLAi^D. — The Dutch Commercial Code, sec. 727, de- 
 clares : General Average shall be apportioned for Con- 
 tribution — Upon the value of the goods on board the ship 
 at the time the loss occurred, or that were in the lighters 
 or boats, or which, before the disaster, were jettisoned by 
 necessity and reimbursed ; or that had to be sold in order 
 to meet Average expenses. 
 
 Coined money shall contribute in General Average ac- 
 cording to the exchange at the place where the voyage 
 terminates. 
 
 Sec. 728. The laden cargo shall be estimated at its 
 
174 GENEBAL AVEEAGE. 
 
 value at the port of discharge, subject to a deduction for 
 the freight, custom duties and costs of discharging, as 
 well as of the Particular Average which may have hap- 
 pened to the same during the voyage. 
 
 This is subject to the following exceptions : When the 
 statement or apportionment is made up at the place 
 whence the vessel commenced its voyage in this coun- 
 try, or was to have commenced it, the price of the laden 
 goods shall be fixed according to the value of the same 
 at the time they were laden, with the costs till on board, 
 exclusive of the insurance premium; and incase the 
 goods may be damaged, according to their real value. 
 
 In case the voyage should be entirely given up, whilst 
 in a foreign port, or the cargo be sold, and the Average 
 could not be made up at that place, the price that the 
 goods were worth on the passage, or the net amount at 
 the place of sale, shall be taken as their contributory 
 value. 
 
 Sec 729. The goods jettisoned shall be valued at their 
 market price at the place where the ship is to be dis- 
 charged, after deduction of the freight, custom duties 
 and ordinary charges ; the nature and condition of the 
 same shall be determined by bills of lading, invoices and 
 other documentary proofs. 
 
 Sec. 730. If the nature or quality of the wares were 
 falsely stated in the bill of lading, and they have a 
 -greater value, they shall contribute on the basis of their 
 real value if they be saved. But should they be lost 
 by jettison, they shall be contributed for according to 
 the quality they purport to have had by the bill of lading. 
 
CONTRIBUTORY INTERESTS. 175 
 
 If the said goods be of an inferior quality to that 
 mentioned in the bill of lading, they shall contribute on 
 the basis of the quality stated in the bill of lading, if 
 they be saved. 
 
 They shall be paid for on the basis of their real value 
 in case they shall have been jettisoned. 
 
 Sec. 732. The goods for which the master has signed 
 no bill of lading, or which do not appear on the ship's 
 manifest, shall not be paid for if jettisoned ; they shall 
 contribute for the jettison if saved. 
 
 Sec. 733. The goods laden on the deck of the ship 
 shall also contribute for the damage if saved. 
 
 If the master, without the knowledge or consent of the 
 shipper, shall have placed the goods on the deck, and 
 the same have been jettisoned, or have been injured by 
 jettison, the shipper shall have a right to claim Contri- 
 bution, without prejudice to an action by the parties 
 interested against the ship and the master. 
 
 Sec. 737. If the loss of the goods should be caused 
 by the fault or act of the charterer or consignee, they 
 shall be made to contribute, nevertheless, to the General 
 Average. 
 
 Sec. 739. If the owners of jettisoned goods should 
 recover them after the apportionment is made, they 
 shall restore to the ship-master or owners of the cargo 
 what they may have received as indemnity by the ap- 
 portionment, deducting the damage, costs and salvage. 
 
 The aforesaid restitution shall be apportioned between 
 the ship and the parties concerned in the cargo, in the 
 
176 GENEEAL AVERAGE. 
 
 same proportion that they contributed to the damage 
 caused by jettison. 
 
 Sec. 740. The owners recovering jettisoned goods, 
 and not claiming any indemnity, shall in no ease be lia- 
 ble to contribute for any damage d<)ne to the other goods 
 after the jettison. 
 
 Germany. — The German General Mercantile law, §720 
 declares. 
 
 The cargo Contributes : 
 
 1. With the goods still existing at the end of the 
 voyage when the discharge was commenced ; or, if the 
 voyage terminate by the loss of the ship, with the 
 goods that have been brought into a place of safety, so 
 far as at the time of the casualty these goods, in both 
 cases, were on board the vessel or a lighter. 
 
 2. With the goods sacrificed. 
 
 § 721. In estimating the amounts, the following 
 points have to be taken into consideration : 
 
 1. With respect to goods which are undamaged, the 
 market value, as fixed by competent persons, of the goods 
 at the end of the voyage, when and at the place where, 
 the discharge was commenced ; or, if the voyage be 
 terminated by the loss of the ship, at the time and place 
 of the salvage, after deducting freight, duties and other 
 expenses. 
 
 2. With respect to goods which have been spoilt du- 
 ring the voyage, or have suffered damage not belonging 
 to General Average, the value, as fixed by competent 
 persons, of the goods in their damaged state at the time 
 and place stated in clause 1 of this section, after deduc- 
 
CONTMBCTOEY INTERESTS. 177 
 
 tion of freight, duties and other expenses. 
 
 8. With respect to goods which have heen sacrificed, 
 the amount of which they are estimated for General Av- 
 erage under § 713. — (Sec. 713, reads as follows : The 
 amount to be allowed, for goods which have been sacri- 
 ficed, is determined by the market price of goods of the 
 same description and quality at the port of destination, 
 at the time when the discharge of the ship was commen- 
 ced. When no market price can be got, or when doubts 
 may arise as to such price or its applicability, more par- 
 ticularly as regards the quality of the goods, the value 
 must then be settled by competent persons. From the 
 value, are to be deducted whatever sums, in respect of 
 freight, duties and charges, have been saved by the loss 
 of the goods.) 
 
 § 722. If goods be thrown overboard and should be 
 picked up, they have to contribute only to a General Ave- 
 rage occurring at the same time or subsequently, in case 
 the owner demands compensation. 
 
 Whether, and under what circumstances, provisions on 
 board for passengers, or provender for animals, and 
 consumed on the voyage, contribute to General Ave- 
 rage ? 
 
 United States. — In practice, provisions, unless they 
 form a part of the cargo, are put on board for consump- 
 tion, and are exempt from Contribution. 
 
 In ordinary cases the provisions are a part of the ship, 
 
 and the consumption of them is analogous to wear and 
 
 tear. 
 12 
 
178 GENERAL AVERAGE. 
 
 In Brown v. Stapyleton, 4 Bing., 119, a claim was 
 made ty the owner of a merchant ship for Contribution 
 by provisions, which were shipped by the English gov- 
 ernment for the support of convicts, who were being 
 transported. It was held that the claim could not be 
 maintained, on the ground that provisions for the crew 
 and passengers were not liable to contribute in any case. 
 Mr. Phillips, in his Treatise on Ins. vol. 2, §1399, doubts 
 the correctness of this decision. He says there is a plain 
 distinction between a case where provisions are supplied 
 by the ship-owner for the crew or for the passengers, and 
 one where they are furnished by a shipper, to be con- 
 sumed by passengers, or animals transported for him. 
 Because, in the former case the value of the provisions 
 re-appears in the freight, and by this Contribution is 
 made. 
 
 In Harris v. Moody, 3 New York Reps, it was held 
 that all property on board the vessel at the time of the 
 jettison, and saved, unless attached to the persons of the 
 passengers, is to be brought into Contribution. 
 
 In England, France, Germany, Holland and Belgium, 
 provisions put on board for consumption do not contri- 
 bute. Emerigon, ch. xii., sec. xlii., Meredith! s Ed. p. 
 493. 
 
 Animals to a marhet. 
 
 Contribute like other merchandise. This appears the 
 rule in all countries. 
 
CONTRIBDTOEY INTERESTS. 179 
 
 Passengers^ effects. 
 
 Passengers' personal effects and money do not contri- 
 bute. This is the practice in the United States and in 
 England, and we believe, in nearly all other maritime 
 countries. 
 
 Passage money. 
 
 Passage money contributes to General Average if at 
 risk. It is generally pre-paid, and if there be no ex- 
 press agreement to the contrary, must be refunded. If 
 not to be refunded, it is at risk, and must contribute. In 
 general, the law in relation to passage money is the 
 same as that respecting freight. Abbott on Shipp, 378, 
 405, 503, note. 
 
 Crew\ wages. 
 
 Do not contribute. Pothier on Maritime Contracts. 
 Cushing's ed. p. 72, n. 126 ; Emerigon, ch. xii., secxlii ; 
 Consolato del Marc, c. 281. 293. 
 
 Crew's effects. 
 Do not contribute. 
 
180 GENERAL AVERAGE. 
 
 Government property, 
 
 United States. — Government property was once con- 
 sidered as exempt from Contribution. 1 Magens, 172. 
 but it is not now exempt. United States v. Wilder, 3 
 Sumner, 308. 
 
 England. — Government stores contribute like other 
 goods ; but, in general, on cost price, as they are not 
 shipped for profit. Brown v. Stapyleton, 4 Bing., 119. 
 
 Profits on cargo. 
 
 Profits do not contribute under that name. It is ob- 
 vious, however, that, when the contributory value of the 
 goods, is their value at the port of destination, it is their 
 value as enhanced by the transportation, and therefore 
 the profits are included in fact. The Nathaniel Hoop- 
 er, 3 Sumner, 542. 
 
 Bank notes. 
 
 United States. — Bank bills transported for hire be- 
 come part of the regular cargo of the vessel, and, as such 
 cargo, are liable to contribute to the General Average 
 loss. Harris v. Moody, 3 N. Y. Reps., 286. It was 
 also held by the same court, that. Bank bills are to be re- 
 garded as property, the goods and chattels of the owner 
 thereof ; and in case of loss, the owner is entitled to re- 
 cover the nominal or par value thereof, in the absence of 
 
CONTRIBUTORY INTERESTS. 181 
 
 any proof of depreciation, with the interest thereon. 
 
 England. — Contribute — Money, bills of credit, choses 
 in action, &c., are excepted only when carried like clothes 
 and luggage under the personal care of a passenger or sea- 
 man. Peters v. Milligan. Park on Ins. 211. Millar, 
 244. Thanas v. Royal Ex. Ass. Co., Man. Dig., 164, 
 n. i., No. 5. 
 
 France. — Contribute to the General Average. Erne- 
 rigon on Insurance, Meredith's Ed., 492, 497. 
 
 Value of freight for Contribution. 
 
 United States. — The net freight only on the goods 
 saved and carried, is called upon to contribute. This 
 net freight is the amount earned, after deducting crew's 
 wages, port-charges &c. This net freight is usually as- 
 certained, in practice, by deducting a certain proportion 
 from the gross freight. In New York, Virginia, Georgia, 
 Texas and California, the practice is to deduct from the 
 gross freight one-half; In Massachusetts, Maine, Mary- 
 land, Pennsylvania and Louisiana, one-third. 
 
 Only the freight earned pays. Lee v. Grinnell, 5 Duer, 
 400, 431. If there be a pro rata freight only, that, only, 
 contributes. The Nathaniel Hooper, 3 Sumner, 542 ; 
 Maggrath v. Church, 1 Caines, 196. Whatever freight 
 the ship loses by jettison of the goods, or by any sacri- 
 fice, is to be contributed for, Nelson v. Belmont, 5 Duer, 
 310, 322. So if she be voluntarily stranded to save the 
 cargo, and being lost, cannot carry it on and earn her 
 freight, this is part of the sacrifice. Col. Ins. Co. v. 
 
182 GENERAL AVERAGE. 
 
 Ashby, 13 Peters, 331, 344. When freight is entitled to 
 contribution, the value is the gross freight lost by the sac- 
 rifice. Pending freight contributes and receives if the 
 vessel be totally lost. Col. Ins. Co. v. Ashby, 13 Cur- 
 tis, 176. 
 
 The following are examples showing Contributory 
 value of freight in certain cases. Gross freight estimat- 
 ed at $5,000. 
 
 1st. When a jettison has been made. 
 Freight on goods delivered - - - $3000, J 1,500. 
 Freight Contributed for 2,000 
 
 $3,500 
 
 2d. Where other sacrifices or expenditures have been 
 made. 
 Freight on goods delivered . - - - $5,000 ^ 2,500 
 
 Zd. When the vessel is totally lost, but cargo delivered. 
 
 Freight gross 5,000 
 
 Off expenses of delivering cargo by) . r.^.^ 
 
 other vessels ) ' 
 
 1000 ^$500 
 
 Where the expenses of delivering cargo exceed the ori- 
 ginal freight, there is no contribution by freight, but the 
 excess is chargeable to cargo, and apportioned according 
 to bulk. 
 
 In the above examples the deduction of one-half is 
 made according to the New York rule, simply as an 
 illustration. In Boston and other places, as we have seen, 
 the deduction would be of one-third. 
 
 England. — The value of freight for contribution is the 
 amount the ship earns, stripped of the captain's and 
 crew's wages for the voyage, brokerage, harbor and light 
 
CONTBIBtJTORY INTERESTS. 183 
 
 dues, and all incidental expenses. The victualling of 
 the crew is, however, not deducted ; the reason for the 
 exception is, that the crew's provisions are ship's stores, 
 and included in the value of the ship. 
 
 In France, Portugal and Belgium, the freight contri- 
 butes for one-half, as in New York and some other places 
 in the United States. 
 
 In Holland, the wages and provisions for the crew are 
 deducted. 
 
 In GrERMANY, the freight contributes on two-thirds of 
 the gross amount earned. 
 
 In Italy, one half the freight at risk contributes. 
 
 In Sweden, Norway and Antwerp, the freight contri- 
 butes on one-half of the amount earned. 
 
 Value of freight for Oontribution, on ships chartered 
 out and home hy one charter. 
 
 Charter-parties are generally worded, so much to be 
 considered earned upon the delivery of the outward oav- 
 go, and the balance on the delivery of the homeward 
 cargo. If no agreement or division of the charter be thus 
 made in the written instrument, it is the custom of ad- 
 justers in New York, to estimate the amount at risk at 
 the time, which is usually computed to be, one-half on 
 each passage. 
 
 The authorities are diverse and conflicting. In the 
 case of Shelton v. Brig Mary, U. S. D. C. Mass., 5 Law 
 Reporter, 75, it was decided, that if there be a charter- 
 party and the freight to be paid for the round voyage 
 
184 GENERAL AVEBAGB, 
 
 out and home, and the principal object of the voyage be 
 to obtain a return cargo, if a loss occur on the outward 
 voyage, the freight for the round voyage contributes. 
 
 In the case of Williams v. The London Ins. Co., 1 
 Maule & Selw, 318, it was held that the whole freight 
 for a voyage to India and back to London, should con- 
 tribute towards an Average which occurred on the out- 
 ward voyage. This result was reached through the 
 medium of a charter-party, by which no freight was 
 payable until the voyage was completed, and the court 
 attached much importance to the fact, that the whole 
 voyage was performed. Whether the outward cargo 
 was held to contribute does not appear in the report of 
 the case. 
 
 Mr. Hughes says, in his Treatise on Ins., 298 : "If 
 the ship be chartered for a voyage out and home, and 
 meet with an accident on the outward passage, which 
 gives rise to an Average claim, the whole freight when 
 afterwards received under the charter-party, for the 
 outward and homeward voyages, must contribute to the 
 loss." 
 
 These decisions, and this diction proceed on the ground 
 that it is competent to disregard the actual freight on 
 board at the time an AVerage loss occurs, and to consider 
 future earnings to be freight pending if there be a writ- 
 ten contract therefor. Mr. Arnould does not approve the 
 decision in Williams v. The London Ins. Co. and doubts 
 whether it can be supported on principle, 2d Arnould, 
 938, and he says, page 937, " That freight in order to be 
 Contributory at all, must have been pending at the time 
 of the sacrifice." 
 
CONTRIBUTORY INTERESTS. 185 
 
 Mr. BenecJce, after citing the Williams case, dissents 
 from it, and says, that, in his opinion, the freight in such 
 cases ought to he divided, and Mr. Phillips, in a note, 
 intimated that in his judgment, only the freight of the 
 particular passage should contrihute. Stevens ^ Ben- 
 ecke hy Phillips, 258. 
 
 Mr. Phillips, in the last edition of his treatise, chap. 
 15, sec. 11, states the rule as follows : " The freight 
 pending at the time of the jettison or other sacrifice 
 contrihutes for the loss on the amount actually saved." 
 
 In the case of SpoffordY Dodge, 14 Mass., 66, it was 
 held that " each party should contribute according to 
 the real value and amount of his interest without regard 
 to the particular contracts relating to the voyage." The 
 vessel in this case, was under charter on time, and the 
 freight was less than the charter-money, yet the court 
 confined the contribution to the freight, on the express 
 ground, that the difierence arose from a special contract 
 which could not aflfect the result. 
 
 England. — If a ship be chartered out and home, in one 
 charter, and she meet with a General Average on the 
 outward voyage, the whole freight for the round voyage 
 must contribute. If the Average happen on the home- 
 ward voyage, then only the freight at risk at the time is 
 to pay its contribution. 
 
 France. — As per arbitration for the value of freight. 
 
 Advances on account of freight. 
 United States. — It is stated by some able text- writ- 
 
186 GENERAL AVEEAGE. 
 
 ers, that if freight were paid in advance, and not to be 
 repaid in any event, this was not at risk, and should not 
 therefore be required to contribute. 2nd Parsons. 330 ; 
 Stevens ^ Beneclee on Av. Phillips Ed., 210, 257; 2 
 Phillips on Ins. §1404. 
 
 In practice, it is a disputed question. The most just 
 and practicable rule would be, that the Contribution 
 should not be affected in the least by any particular un- 
 usual stipulations as to the time of payment of freight, 
 but should be made precisely as if the goods had been 
 shipped on the usual bill of lading, stipulating to pay the 
 freight on the delivery of the goods, estimating the freight 
 on each passage distinctly, whether the parties agree for 
 freight on the termination of successive passages, or part- 
 ly in advance, or however otherwise they may agree. 
 This rule would operate more equally in a great majority 
 of cases, and save third parties from being affected by 
 unusual stipulations of which they could not be ap- 
 prised. 
 
 England. — It has been commonly maintained, hith- 
 erto, that advances of money mSide to a captain on ac- 
 count of freight are not to contribute to General Aver- 
 age. But in the recent case of HallY. Janson, in the 
 Court of Queen's Bench, it was held that a custom al- 
 leged to exist in London that assurers of money advan- 
 ced on freight were not liable to make good a General 
 Average loss, was no answer to the action. What the 
 nature of an advance to the captain before the ship's 
 sailing is, depends almost entirely on the manner of mak- 
 ing it. If it be simply an advance for expenses, it is not 
 an insurable interest in the eye of the law, but a per- 
 
CONTRIBUTOET INTERESTS. 187 
 
 sonal debt of the owner not dependent on the safety of 
 the ship. If, however, it be clearly stated to be advanc- 
 ed as part of the freight, it is insurable as such : for, in 
 case the ship be lost, that freight paid in advance is lost 
 also, for it would not be returned by the shipper. In 
 fact it might be put in the light of the person so advanc- 
 ing, having purchased a share of the freight ; and there- 
 fore the owner has no right to insure the portion advanc- 
 ed, for, the same interest in all its rights cannot be 
 insured twice. 
 
 The current opinion about this subject at Lloyd's 
 appears to be just contrary to the fact, for it is commonly 
 stated that advances, eo nomitie, are an insurable inte- 
 rest, hit that money advanced on account of freight is 
 not insurable by the merchant or his agent ; in con- 
 formity to which opinion, advances are very usually 
 insured in London and elsewhere. But the truth is 
 discoverable by deciding the question, whose is really 
 the risk of loss by sea perils on these advances ? On 
 whomsoever that contingency rests there remains also 
 the right to provide against it by insurance ; in other 
 words he has insurable interest. Moreover, if that 
 interest be such as to be subject to danger of loss, it is 
 interested in any means taken to avoid such loss, — it 
 must contribute to General Average. Hopkins 83. 
 Arnould 261. 
 
 Whatever may have been the course of the English 
 decisions, the law is now well established in the 
 United States, that freight paid in advance may be 
 reclaimed and recovered in a case of non-performance 
 of the voyage without fault of the shipper, unless there 
 
188 GENERAL AVEEAGE. 
 
 be a special agreement to the contrary. Watson v. 
 Buyhinh, 3 Johns, 335 ; Phelps v. Williamson, 5 
 Sandf., 578 ; Pitman v. Hooper, 3 Sumner, 50 ; Reina 
 V. Cross, 6 Cal., 29 ; Griggs v. Austin, 3 Pick., 20; 
 Lawson V. Worms, 6 Cal., 365 ; Brown v. Harris, 2 
 Gray, 359. 
 
 When freight is at the risk of the ship-owner, it is 
 clearly interested in measures taken for the common 
 benefit, and should contribute; of this there can be no 
 doubt. But when the unde]:standing between the 
 shipper and ship-owner is, that the advance is a pay- 
 ment absolutely without the right of reclamation, the 
 insurable interest is vested wholly in the shipper of 
 cargo, and the ship-owner not having any interest at 
 stake, so far as concerns the freight pre-paid, has nothing 
 to lose, and it is therefore doubtful whether he can be 
 made to contribute to General Average. 
 
 Freight when the goods are transhipped hy another 
 vessel. 
 
 United States. — According to the practice in New 
 Tork, one-half of the freight earned, which would be the 
 original freight less the cost of transhipping cargo, 
 contributes to the General Average. 
 
 England. — The excess of freight over transhipping 
 freight and extra charges consequent, contributes. 
 
 France. — The freight as estimated by arbitration. 
 
contributoey interests. 189 
 
 Specie in ordinary cases. 
 
 In the United States, England and France, specie 
 contributes at its full value. 
 
 Holland. — The Dutsh Commercial Code, § 727, 
 provides that " coined money shall contribute to Gene- 
 ral Average according to the exchange at the place 
 where the voyage terminates." 
 
 Property recovered after jettison. 
 
 United States. — If goods be jettisoned, and after- 
 wards recovered, not their whole value, but only so 
 much thereof as is lost by the jettison and damage 
 thence arising, added to the expense of recovering them, 
 is to be contributed for. 
 
 England. — Goods jettisoned still belong to their for- 
 mer owners, and if recovered from the sea, may be 
 reclaimed on paying the expenses of salvage, and Con- 
 tribution is made in the same manner as in the United 
 States. 
 
 France. — The Ordinance, art. 22, tit. Bu jet. sajs : 
 " If the eifects jettisoned be recovered by the owners 
 after Contribution, they shall be bound to return to the 
 master and those interested, what they have received in 
 the Contribution, less the damage still remaining to 
 them from the jettison and the expenses of the recovery." 
 Holland. — If the owners of jettisoned goods should 
 recover them after the apportionment is made, they 
 shall restore to the ship-master or owners of the cargo 
 
190 GENERAL AVEEAGE. 
 
 what they have received as indemnity by the appor- 
 tionment, deducting the damage, costs and salvage. 
 
 The aforesaid restitution shall be apportioned between 
 the ship and the parties concerned in the cargo, in the 
 same proportion that they contributed to the damage 
 caused by jettison. Dutch Com. Code, sec. 739. 
 
 GrERMANT. — If goods be thrown overboard, and should 
 be picked up, they have only to contribute to a General 
 Average occurring at the same time or subsequently, in 
 case the owner demands compensation. German Gen. 
 Mer. Law, sec. 722. 
 
 Property sacrificed on first General Average. 
 
 The practice in the United States and England is, 
 that property sacrificed on the first General Average, 
 contributes to all subsequent General Average. 
 
 Mr. Benecke in his Prin. of Indem, p. 306, London ed., 
 1824, says : "jettisoned goods continue liable to Contri- 
 bution until the risk terminates, because, being entitled 
 to a Contribution for their whole value on the arrival of 
 the ship, their whole value is at risk until such arrival." 
 
 In Nelson -v. Belmont, 5 Duer, 310, the court said, 
 " the goods jettisoned do not contribute for any damage 
 afterwards done to the residue of the cargo." 
 
 France. — Property sacrificed on the first General 
 Average, does not contribute to further General Average. 
 Mogron, 425. 
 
CONTRIBUTORY INTERESTS. 191 
 
 Cargo on deck. 
 
 United States. — Deck-load, though ordinarily not con- 
 trihuted for in General Average when sacrificed, must 
 contribute for the sacrifice in addition to its own special 
 expenses or charges. 
 
 Deck-load, as we have previously seen, is usually at 
 its own risk, and must pay its own charges ; these are 
 called special charges, and must he deducted from the 
 net value before contributing to the General Average. 
 
 England. — Deck-load contributes, and, in practice, 
 when carried according to usage and custom of trade, is 
 also contributed for ; but General Contribution is not 
 binding on the underwriter, unless his consent to risk of 
 deck cargo have been specially obtained. 
 
 France. — In practice, deck-load does not contribute 
 except in short coasting voyages. 
 
 Code de Commerce, art. 421, provides : " The effects 
 laden on deck of the vessel contribute if saved. If they 
 be thrown overboard or damaged by the jettison, the 
 owner is not admitted to make a demand of Contribution ; 
 his only remedy is against the master." 
 
 Holland. — The goods laden on deck of the ship shall 
 also contribute for the damage if saved. 
 
 If the master, without the knowledge or consent of 
 the shipper, shall have placed the goods on the deck, and 
 the same have been jettisoned, or have been injured by 
 jettison, the shipper shall have a right to claim Contri- 
 bution, without prejudice to an action by the parties 
 interested against the ship and master. Dutch Conil 
 Code, § 733. 
 
192 GENERAL AVERAGE. 
 
 Liability of underwriters as to General Average. 
 
 The laws and policies of insurance of all nations 
 oblige the underwriters to indemnify the assured for 
 Average Contributions, with this difference, however, 
 that in some countries the underwriters are not liable 
 unless the General Average exceed a fixed per centage, 
 whereas in the United States and England they com- 
 pensate for every loss of that kind, however small. In 
 Antwerp, Amsterdam, Rotterdam, Hamburg, Bremen and 
 LuBBCK, the underwriter pays General Average only 
 where it amounts to three per cent, of the sum insured ; 
 in Bordeaux, the excess of one per cent. ; in Paris, 
 Rouen and Havre, the excess of one per cent., in any 
 long voyages, and the excess of two per cent, in coast- 
 ing voyages ; in Marseilles, the excess of one per cent., 
 upon gold and silver, and the excess of three per cent, 
 upon all other merchandise ; in Nantes, the excess of 
 three per cent., reduced to one, when there are Particu- 
 lar Averages also ; in Trieste, the excess of three per 
 cent., of five and fifteen, according to the objects insured 
 and the voyage ; in Genoa and Leghorn, the excess of 
 three per cent. 
 
 The English East India Company, when they 
 charter a ship, stipulate that there shall be no claim for 
 Contribution for General Average. A loss of this des- 
 cription consequently falls entirely upon the ship, 
 freight and private trade, and it is customary to provide 
 for this in policies upon those subjects. According to 
 the stipulation, no connection exists, with regard to the 
 perils of the navigation, between the cargo of the com- 
 
ADJUSTMENT. 193 
 
 pany, and the ship, freight and private trade. It 
 follows, therefore, that the company cannot be entitled 
 to compensation by way of General Average for property 
 of theirs thrown overboard, unless there be a stipulation 
 to the contrary. 
 
 In regard to the adjustment, — it may be noticed, that 
 errors sometimes occur in recovering a General Average 
 loss, of the underwriters, in consequence perhaps of a 
 want of facility in appropriating adjustments of this 
 nature to a policy of insurance ; or for want of bearing 
 in mind that the valuation in the policy has no relation 
 to the value for Contribution. 
 
 ADJUSTMEI^T. 
 
 At what place ought the Average to be adjusted ? 
 
 United States. — The proper time and place for adjust- 
 ing a General Average loss, is on the arrival of the ship 
 at her port of destination. There the proprietors or 
 representatives of proprietors, of all the property will be 
 found ; there a uniform scale of value can be adopted 
 as the basis of Contribution ; and there the means will 
 exist for enforcing payment should any of the contribu- 
 tors resist the claim for their quota. 
 
 In LoringY. Neptune Ins. Co., 20 Pick., 411, it was 
 held, that an adjustment and settlement of General 
 Average at the port of destination binds the parties, 
 13 
 
194 GENERAL AVERAGE. 
 
 though it may be made on principles different from 
 those which govern where the policy was made. 
 
 In Barnard -V. Adams, 10 Howard, U. S. Sup. Ct. K, 
 270, 307, the court said : " The place where Average 
 shall be stated, is always dependent more or less on 
 accidental circumstances, affecting, not the technical 
 termin ation of the voyage, but the actual and practical 
 closing of the adventure." 
 
 SuAge Phillips says: "Where different parties are 
 concerned in a General Average, the jurisdiction of the 
 adjustment is at the port of delivery, at which their 
 interests are to be separated." 2 Phillips, § 1,413. 
 
 M. Parsons seems to take the same view. Referring 
 to the foregoing rule laid down by Phillipsv he says : 
 
 " This, indeed, is the port of destination for those 
 goods which are to be delivered there. And the rule 
 would be the same in substance, if it were that the 
 adjustment should be made at the first port of delivery 
 of any of the interests concerned." 1 Parsons, 332. 
 
 Though, as we have said, it is customary where the 
 vessel arrives at her port of destination, and delivers her 
 cargo there, that the loss should be adjusted at that 
 place, and in conformity with the rule there prevailing ; 
 still it does not follow that it is not competent for an 
 adjustment to be made in any other port. It is well 
 settled that the master has the power, and, indeed, it is 
 his duty, not to deliver any contributory goods to their 
 owners until their share of Contribution is paid or 
 secured to him for the benefit of the party to whom it 
 belongs. This implies and requires a previous adjust- 
 ment ; and there can hardly be an adjustment in part 
 
ADJUSTMENT. 195 
 
 of anything of which all the elements are so closely 
 connected and independent. It follows, therefore, that 
 the rule in practice should he as stated by Judge 
 Phillips. 
 
 If the occurrence which gives rise to the General 
 Average, happen in the early part of the voyage, and 
 ■occasion the return of the ship to her port of sailing, or 
 some other port accessible to the owner and shippers of 
 the cargo, it is often convenient that the General 
 Average Contribution should be made there, and not 
 delayed till the vessel's arrival at her destined port. 
 And when this is done by the consent of all the parties 
 in interest, it will be binding, but not otherwise. In 
 this instance a different value must be set on the con- 
 tributory interests. It will be the cost of all of them 
 at the time of sailing, less any diminution of value by 
 the accident or sea damages. And although this is not 
 strictly the correct method of valuation, there is little to 
 object to it, since all the interests are subjected to the 
 same treatment. As to the freight, an exception is 
 made in its favor, and an estimate is made of what it 
 would produce net when the voyage shall have been 
 completed. 
 
 England. — The proper place for adjusting a General 
 Average is that of the vessel's destination after her 
 arrival. The amount of damage as well as of the 
 interest to be contributed for, can be better ascertained 
 there than at any other place, especially when the 
 value of the articles at that place is the basis of the 
 Contribution. Moreover, the consignee of goods is 
 always obliged to pay his share of the Contribution, 
 
196 GENERAL AVERAGE. 
 
 and can be compelled to do so by the master, who has 
 it in his power to demand security before he parts with 
 the goods. On the other hand the shipper cannot be 
 under all circumstances obliged to pay Greneral Average, 
 after the goods have been delivered. Lastly, when the 
 parties interested belong to different nations, it is neces- 
 sary that the General Average should be adjusted 
 according to the laws of the place of discharge, because 
 those laws are the only ones which the authorities can, 
 without inconvenience, put into execution, and all par- 
 ties are bound to submit to them. 
 
 When a vessel returns to the place or country from 
 which she departed, and continues her voyage, it will 
 always be advisable to adjust the General Average at 
 the place of departure. The parties cannot object to it, 
 as far as regards disbursements, because every one is 
 obliged to pay his share to them at the place and time 
 at which they are required. The case admits of a doubt 
 with respect to jettison, to which the parties cannot be 
 liable to contribute before the vessel has reached her 
 destination, because no Contribution can be demanded 
 if the ship and cargo be totally lost before the voyage 
 is completed. 
 
 It may, therefore, be considered as a general rule, 
 that a General Average must be adjusted at the place 
 of discharge after the ship's arrival, if it be practicable, 
 and it is one of the duties of the captain to see the losses 
 and disbursements adjusted there by General Contribu- 
 tion. Benecke, 269 ; Emerigon II, o. 19, sec. 15 ; 
 Roccus, n. 96 ; Casaregis Disc. 46, n. 64 ; French Ord. 
 
ADJUSTMENT. 197 
 
 Tit du jet. art. 6 ; Code, art. 414 ; Hamburg, Ord. 
 Tit 2, art. 6. 
 
 As to the liability of underwriters to pay General Ave- 
 rage according to foreign adjustment. 
 
 United States. — The authorities are diverse and 
 conflicting. 
 
 Insurance being a contract of indemnity, the under- 
 writer ought to indemnify the assured for the whole 
 amount of Contribution which he was legally obliged to 
 pay This amount may be either greater or smaller 
 than it would have been, if adjusted according to the 
 rules established in the country where the insurance 
 was made, but there will be no perfect indemnity in 
 either case, unless the assured receive back the sum 
 which he was under the necessity of paying. 
 
 The proper way, therefore, to do justice to all parties, 
 seems to be, to accept, as conclusive, foreign adjustments, 
 in all cases, when made strictly in accordance with the 
 laws and usages of the place of adjustment, and accom- 
 panied by proofs of settlement in full faith there. 
 
 Judge Parsons (Mar. law, vol. 2, p. 431), expresses 
 his views as follows: "It has also been said that an 
 adjustment of General Average, made at a port where 
 it ought to be made, and made according to the laws of 
 that port, binds conclusively all who are parties to it. 
 This is certainly true, so far as relates to the original 
 parties to the Average, or to the owners of the several 
 sacrificed or contributory interests. But when this 
 question comes up in reference to them who are only 
 indirectly interested, by insuring those who are so, 
 
198 GENERAL AVERAGE. 
 
 directly, it assumes a somewhat different aspect. The 
 contract of insurance is made between parties, one of 
 whom at least, and that the promising party, has a 
 permanent location ; there he enters into the contract, 
 and makes his promise. And has he not the right to 
 have it construed and applied, in all respects, by the law 
 of the place where the contract is made and is to be 
 performed 1 If a New York ship, bound to Calcutta, 
 be insured in London, and incur great expense by seek- 
 ing a port wherein to repair damage caused by a sea- 
 peril, there may be three laws or rules, by which to 
 determine how much the ship, or the insurer of the ship, 
 shall pay. The law of New York, for example, in res- 
 pect to the wages and provisions and expense of repair, 
 may be one thing, that of London another, that of 
 Calcutta a third. And if we admit, as is certain, that 
 an adjustment made on arrival at Calcutta will bind 
 the ship's cargo and freight, when the ship-owner comes 
 to London to obtain indemnity from the insurers, may 
 they not say, ' we insured you under the law of England ; 
 by that law the loss of the ship would have been far 
 less than it is by the adjustment at Calcutta. This 
 difference must be your loss, because we shall pay you 
 by the law of London.' It is not to be denied that there 
 is some plausibility in this view, and that it is sus- 
 tained by respectable authority. We cannot, however, 
 doubt that the opposite rule is the true one ; and the 
 weight of authority, as well as of reason, would hold 
 the insurers as among the parties upon whom a foreign 
 adjustment, properly made, where made, is binding. 
 The contract of insurance is eminently a maritime con- 
 
ADJUSTMENT. 199 
 
 tract. It goes with the ship. The insurers can calcu- 
 late the risk, for the policy is made upon a designated 
 voyage, or upon time, or with a liberty of procedure 
 agreed upon, and the insurers ought, by a familiar prin- 
 ciple of the law-merchant, to be governed by the law of 
 whatever places becomes applicable to the interests 
 insured in the course of the voyage or of time. The 
 fault is in the diversity of these rules ; this is less than 
 it was ; and the present strong tendency of the law- 
 merchant to vindicate itself as a part of they^s gentium 
 and to cast off local peculiarities, permits the hope that 
 this, and some similar questions, will disappear." 
 
 In the following cases it has been decided that an 
 adjustment made at a foreign port is not binding on an 
 insurer. Thornton v. U. S. Ins. Co., 3 Fairfield, 150 ; 
 Lenox v. United Ins. Co., 3 Johns Gas., 178 ; Shiffv. 
 La. State Ins. Co., 18 Mart. La., 629. And it has been 
 held that it was so binding in Strong v. N. Y. Fire- 
 meris Ins Co., 11 Johns, 323 ; Depau v. Ocean Ins. 
 Co., 5 Cow., 63; LoringY. Neptune Ins. Co., 20 Pick., 
 411. The question was discussed by Mr. Justice Story, 
 with his usual learning and ability in the case of Peters 
 V. Warren Ins. Co., 1 Story, 463, and a strong opinion 
 expressed in favor of the latter view of the case, though 
 he expressly stated that he did not wish to be under- 
 stood as deciding the point. 
 
 The rule in practice, in New York and Boston, is to 
 accept foreign adjustments, when correctly adjusted 
 according to the laws and usages of the foreign port, as 
 conclusive, not only between all the parties directly 
 interested in the adventure, but also, as between the 
 
200 GENERAL AVERAGE. 
 
 assured and the underwriter. 
 
 England. — In delivering the opinion in Simonds v. 
 White, 2 B. & C, 805, Abbott, C. J., said : "The shipper 
 of goods, tacitly, if not expressly, assents to General 
 Average as a known maritime usage, which may, 
 according to the events of the voyage, he either benefi- 
 cial or disadvantageous to him. And by assenting to 
 General Average, he must be understood also to assent 
 to its adjustment, and to this adjustment at the usual 
 and proper place ; and to all this, it seems to us to be 
 only an obvious consequence to add, that he must be 
 understood to consent also to its adjustment, according 
 to the usage and law of the place at which the adjust- 
 ment is to be made." 
 
 Mr. Hopkins states the English practice as follows : 
 " In some countries the Contribution is arranged and 
 settled authoritatively by tribunals of commerce or 
 official Despacheurs. But the question which arises, is, 
 whether, when ships, goods or freight have been insured 
 in England, the underwriters are bound by those foreign 
 settlements. There is, or I should, perhaps, rather say, 
 there was, a strong conviction to the contrary. It was 
 known that, by most foreign adjustments, the column 
 of General Average comprehended items which would 
 be disallowed by our own custom ; and that, therefore, 
 insurers of ships sometimes, and the insurers of goods 
 nearly always, are prejudiced by admitting a foreign 
 statement as binding on themselves. That this was the 
 case, is shown by the practice which gained ground with 
 many shippers, of introducing into their policies, the 
 condition, that in case of General Average, the under- 
 
ADJUSTMENT. 201 
 
 writers should pay according to the foreign, statement. 
 The introduction of the clause is plainly indicative that 
 underwriters were not bound to notice foreign adjust- 
 ments, without the proviso. The motive for introducing 
 the words is sufficiently obvious ; for proprietors of 
 cargo are themselves obliged to pay Average accord- 
 ing to the laws and regulations of the foreign port 
 which generally makes their Contribution greater than 
 it would be by a re-adjustment made in our own coun- 
 try, and consequently they have themselves to sustain 
 the loss of that part which they cannot recover on their 
 policy by an English statement. The underwriters 
 argue, and very plausibly, that the undertaking called 
 the policy is an instrument which binds by the 
 laws and customs of the place where it is made ; by 
 those laws and customs it is to be construed, and by 
 them only. Some of the assured hold, on the contrary, 
 that the mere y?(s loci of the contract is not to circum- 
 scribe their indemnification; that it is in accordance 
 with the spirit which animates the system of insurance, 
 that they should have, under a policy, an ample indem- 
 nity against all risks ; that variation in the laws which, 
 in foreign countries, regulate Average Contribution, is 
 one of the risks ; and that as the insurers know the port 
 to which the ship is bound, they must take that contin- 
 gency into account in fixing their premium. Impressed 
 by the force of such an argument, underwriters have in 
 many instances of late given way to it, and have paid 
 Average on foreign adjustments upon this special 
 
202 GENEBAL AVERAGE. 
 
 reason, that, had they been requested, they would have 
 introduced the foreign General Average clause into the 
 policy without asking any additional premium, and it 
 therefore becomes a matter almost of indifference 
 whether it be introduced or not. Arnould effectively 
 decides against my view, in payment on foreign state- 
 ments. He says an English underwriter is bound by a 
 foreign adjustment when rightly adjusted according to 
 the laws and usage of the foreign port ; but unless it 
 can be clearly proved that it was in strict conformity, 
 he is not bound. He relies on two cases cited by Park, 
 Newman v. Cazlet, and Walpole v. Ewer. The latter 
 seems to have been decided against the defendants on 
 a technical point ; for Lord Ellenborough said that there 
 must be an allegation of the fact as to law and usage, 
 but here the declaration contained none. Sir J. Arnould 
 then continues, " it appears an almost unavoidable 
 inference from these expressions of Lord Ellenborough, 
 that where ships and goods are insured for a voyage from 
 this country to a foreign port, and sufScieht evidence is 
 given of an invariable usage at such port to adjust as 
 General Average, losses which are not so in this country, 
 the English underwriter is bound thereby, on the 
 ground that he must be taken to have notice of the 
 usage prevailing at the foreign port to which the con- 
 tract of insurance relates, and by reference to which it 
 ought to be construed. He must have contemplated the 
 possibility of the interest having to pay Average in a 
 foreign country." Arnould on Ins., p. 944. 
 
ADJUSTMENT. 203 
 
 Now it will be observed, that in these remarks of the 
 learned writer on Insurance, two things are involved : — 
 First, that in an action against an underwriter for reco- 
 very of the sum contributed by a foreign Average adjust- 
 ment the burthen of proof lies with the plaintiff to show 
 that the adjustment has been made up in strict conformi- 
 ty with the law and usage of the place. And if the adjust- 
 ment have been made up in strict conformity with the 
 law and usage of the place, and if the adjustment have 
 been made in a place little known or not much frequen- 
 ted, and the defendant should traverse and allege that 
 the adjustment is not in conformity, &c,, and so put the 
 plaintiff on his proofs, it might be highly difficult to 
 bring the necessary evidence, and it might even require 
 that he should send a commission to that foreign place 
 to establish the fact ; the expense of doing which might 
 dotsr him from proceeding. No one asserts that an un- 
 derwriter is bound by even an English adjustment unless 
 it be a correct one ; but supposing the foreign adjust- 
 ment be correct, this writer decides that it is binding on 
 the underwriter. And he justifies this decision by an 
 argument, in the second place, which is of large appli- 
 cation, viz : on the implied notice which the underwri- 
 ter is taken to have of the prevailing law and usage of 
 Average in every port and place which is the terminus 
 ad quern of any rojage a ship, which he insures, may be 
 on. Now, were this principle applied to every other cir- 
 cumstance relating to an insurable interest about which 
 there is the possibility of the underwriter's procuring in- 
 formation for himself, i. e., about which he is taken to 
 have notice, it appears to me that he would rarely be in 
 
204 GENERAL AVERAGE. 
 
 a position to defend himself in any case of suppressio 
 veri or of misrepresentation. The value, however, taken 
 in foreign statements is not held to be binding on the 
 English underwriter who has even agreed to the foreign 
 Average clause, or who interprets his liability most lib- 
 erally. He will pay only on a value within, or oo-ex- 
 teflsive with, the value insured ; for it would be irra- 
 tional to suppose that a shipper who only partially 
 insures his goods should have all the benefit which he 
 might have secured if he had paid for an insurance on 
 the full amount of his interest." 
 
 In Hamburg, the insurance companies are bound by 
 their own fundamental rules to submit to foreign adjust- 
 ments of General Average, made by persons duly author- 
 ised for that purpose. The same rule as far as we are 
 able to learn, is followed in all other foreign countries, 
 unless there be a stipulation to the contrary in the poli- 
 cy, as is the case in those of the insurance companies at 
 Paris. 
 
 By whom adjustments are made. 
 
 United States. — Adjustments are usually made by 
 persons who make this their special business. 
 
 The traditional and necessary attitude of an adjuster 
 is that of a judge, and not that of an advocate or attor- 
 ney. It is his duty, in all cases, to act impartially be- 
 tween insurers and insured, regardless of favor towards 
 friend or employer, and intent solely upon the legal and 
 clerical accuracy of his calculations. 
 
ADJUSTMENT. 205 
 
 England. — Formerly, before commerce had expanded 
 into its present gigantic proportions, the assured used to 
 make up his own claim, or get some more experienced 
 neighbor to do it for him. Afterwards, certain persons 
 doing business at Lloyd's became esteemed for their 
 knowledge and experience in such matters, and to them 
 were entrusted many of the claims to get settled, until, 
 about fifty yea-rs ago, the business of making up adjust- 
 ments was combined with that of an insurance broker ; 
 but at that period there was sufficient business to estab- 
 lish Average adjusting as a separate profession. The per- 
 sons who devote themselves to this profession are called 
 Average Adjusters, or Average Staters. In the majori- 
 ty of cases they decide the questions which emerge, and 
 they make the numerous calculations which are involv- 
 ed in claims on goods. The position of the Average sta- 
 ter is not official or authoritative ; and both underwriter 
 and assured are at liberty to dissent from his decisions, 
 and raise questions on each separate case. 
 
 Prance. — The Commercial Code of France provides, 
 (art. 414) that " the statement of losses and damages is 
 made out in the place of the discharge of the vessel, at 
 the instance of the master, by referees. 
 
 The referees are appointed by the tribunal of com- 
 merce, if the discharge be made in a French port. 
 
 In places where there is no tribunal of commerce, the 
 referees are appointed by the justice of the peace. 
 
 If the vessel be discharged in a foreign port, they are 
 appointed by the French consul, and where there is no 
 French consul, by the magistrate of the place. 
 
206 GENERAL AVERAGE. 
 
 The referees are to be sworn, before they enter upon 
 their business. 
 
 Holland. — The Dutch Commercial Code, sec. 724, pro- 
 vides : " The statement and apportionment of General 
 Average shall be made up at the request of the captain 
 and by experts, who shall be appointed by the interest- 
 ed parties, or by the district court of the place within the 
 kingdom where the said statement and apportionment 
 are to be made up. 
 
 The experts shall be sworn before they commence their 
 duties. 
 
 The statement shall be ratified by the district court. 
 
 In foreign ports the General Average shall be made 
 up by the local authorities of that place." 
 
 Sec. 725. " In case of a voyage being given up on 
 the passage, or of the sale of the cargo in a port of refuge, 
 both occurring beyond this country, the claim, state- 
 ment and apportionment of the damage shall be made at 
 the place where such voyage is given up, or where the 
 sale takes place." 
 
 Germany. — The German General Mercantile law de- 
 clares : §731 " Under the jurisdiction of this code, the 
 Average statement is to be made up by the persons reg- 
 ularly appointed for the purpose, or, in their absence, by 
 parties especially authorised by the court (Average sta- 
 ters) (compare §57, clauses 1-7 of the Introductory Law.) 
 
 Every party interested is bound to furnish the Average 
 stater with all documents necessary for making up the 
 statement as far as they may be under his control, viz : 
 charter-parties, bills of lading and invoices. 
 
 To the laws of the respective countries is reserved the 
 
ADJUSTMENT.^ 207 
 
 right of making further regulations respecting the draw- 
 ing up of the Average statement and the settling of the 
 same." 
 
 " §57. Introductory Law. — The following regula- 
 tions are herehy laid down for the stating and settling of 
 Averages : 
 
 1. As soon as the Average statement is made up, the 
 Average stater shall lay the same before the court of com- 
 merce. It is the duty of this court to examine the state- 
 ment, and if mistakes or omissions be found, to have 
 the same corrected by the Average stater. 
 
 2. After the statement has been examined, and, if 
 necessary, corrected, the parties who have to contribute, 
 if they have announced themselves to the court, or are 
 known in other ways, more particularly by the ship's pa- 
 pers or cargo accounts, are to be invited to appear before 
 a deputy of the court on a fixed day if they reside in the 
 district of the court, or have appointed representatives 
 there, otherwise, in the person of an official agent, who 
 will be appointed to act for them, in order to make their 
 several objections to the statement. 
 
 To the summons is to be attached the announcement, 
 that any party not appearing will be considered to have 
 no objection to make to the statement. 
 
 3. If, at the stated time, no objections be made to 
 the statement, then the court shall confirm the same. 
 
 4. If an interested party make objections, he must 
 prove them in the sitting appointed, or must reserve the 
 right of putting in a written statement of his grievance. 
 In the latter case, the statement must be laid before the 
 
208 GENEKAL AVERAGE. 
 
 court within fourteen days ; if this should not be done, 
 it will be considered that the official record of the sitting 
 is to serve as such statement. 
 
 The ordinary legal steps will be taken by the court 
 on the statement of grievance ; or should such not have 
 been reserved, or not have been put in during the inter- 
 val of fourteen days to be allowed as above, then on the 
 copy of the official record of the sitting which is to serve 
 as a statement. 
 
 5. When the obj ections which may have been brought 
 forward have been settled by a legal decision, or other, 
 wise, then the court shall proceed to confirm the Aver- 
 age statement, the same having first been duly amend- 
 ed in conformity with the settlement of the objection. 
 
 6. When objections are raised which affect a portion 
 of the Average statement only, the court shall at once 
 confirm the statement so far as the same is not affected 
 by the objections. 
 
 7. When the Average statement has been so con- 
 firmed, immediate execution may be granted upon it. 
 
CHAPTER II. 
 
 INTERNATIOML GENERAL AVERAGE. 
 
 The following is the hill recommended to be adopted by 
 
 the International Congress held at York, in 
 
 England, on the 25th, 26th and 21th 
 
 days of September, 1864. 
 
 JETTISON OF DECK CARGO. 
 
 " Section 1. A jettison of timber or deals, or any 
 other description of wood cargo, carried on the deck of a 
 ship in pursuance of a general custom of the trade in 
 which the ship is then engaged, shall be made good as 
 General Average, in like manner as if such cargo had 
 been jettisoned from below deck. " 
 
 " No jettison of deck cargo, other than timber or deals, 
 or other wood cargo, so carried as aforesaid, shall be made 
 good as General Average." 
 
 " Every structure not built in with the frame of the 
 14 
 
210 INTERNATIONAL GENERAL AVERAGE. 
 
 vessel shall be considered to be part of the deck of the 
 vessel." 
 
 DAMAaB BY JETTISON AND BREAKAGE. 
 
 Section II. Damage done to goods or merchandise 
 by water which unavoidably goes down a ship's hatches 
 opened, or other opening made, for the purpose of mak- 
 ing a jettison, shall be made good as General Average, 
 in case the loss by jettison be so made good." 
 
 " Damage done by breakage and chafing, or otherwise, 
 from derangement of stowage consequent upon a jettison, 
 shall be made good as General Average." 
 
 EXTINGUISHING FIRE ON SHIPBOARD. 
 
 " Section III. Damage done to a ship or ca-rgo, or 
 either of them, by water or otherwise, in extinguishing 
 a fire on board the ship, shall be General Average." 
 
 CUTTING AWAY WRECK. 
 
 " Section IV. Loss or damage caused by cutting a- 
 way the wreck or remains of spars, or of other things 
 which have previously been carried away by sea peril, 
 shall not be made good as General Average." 
 
INTERNATIONAL GENERAL AVERAGE. 211 
 
 VOLUNTARY STRANDING. 
 
 " Section V. When a ship is intentionally run on 
 shore because she is sinking or driving on shore or rocks, 
 no damage caused to the ship, the cargo and the freight, 
 or any or either of them, by such intentional running on 
 shore, shall be made good as General Average." 
 
 CARRYING A PRESS OF SAIL. 
 
 " Section VI. Damage occasioned to a ship or cargo 
 by carrying a press of sail shall not be made good as 
 General Average." 
 
 PORT OF REFUGE EXPENSES. 
 
 " Section VII. When a ship shall have entered a 
 port of refuge under such circumstances that the expense 
 of entering the port is admissible as General Average, 
 and when she shall have sailed thence with her origin- 
 al cargo or a part of it, the corresponding expenses of 
 leaving such port shall likewise be so admitted as Gene- 
 ral Average ; and whenever the cost of discharging car- 
 go at such port is admissible as General Average, the 
 cost of reloading and stowing such cargo on board the 
 said ship, together with all storage charges on such car- 
 go shall likewise be so admitted. Except that any por- 
 tioH of the cargo left at such port of refuge, on account 
 of its being unfit to be carried forward, or on account of 
 
212 INTERNATIONAL GENERAL AVERAGE. 
 
 the unfitness or inability of the ship to carry it, shall not 
 be called on to contribute to such General Average." 
 
 WAGES AND MAINTENANCE OF CREW IN 
 PORT OF REFUGE. 
 
 " Section VIII. When a ship shall have entered a 
 port of refuge under the circumstances defined in section 
 VII, the wages and cost of maintenance of the master 
 arid mariners, from the time of entering such port until 
 the ship shall have been made ready to proceed upon 
 her voyage, shall be made good as General Average. 
 Except that any portion of the cargo left at such port of 
 refuge on account of its being unfit to be carried forward, 
 or on account of the unfitness or inability of the ship to 
 carry it shall not be called on to contribute to such Gen- 
 eral Average." 
 
 DAMAGE TO CARGO IN DISCHARGING. 
 
 " Section IX. Damage done to cargo by discharging 
 it at a port of refuge shall not be admissible as General 
 Average, in case such cargo shall have been discharged 
 at the place and in the manner customary at that port 
 with ships not in distress." 
 
 CONTRIBUTORY VALUES. 
 " Section X. The contribution to a General Average 
 
INTERNATIONAL GENERAL AVERAGE. 213 
 
 shall be made upon the actual values of the property at 
 the termination of the adventure, to which shall be ad- 
 ded the amount made good as General Average for prop- 
 erty sacrificed ; deduction being made from the ship- 
 owners' freight, and passage money at risk, of two-fifths 
 of such freight, in lieu of crew's wages, port-charges, 
 and all other deductions ; deduction being also made 
 from the value of the property of all charges incurred in 
 respect thereof subsequently to the arising of the claim 
 to General Average." 
 
 " Section XI. In every case in which a sacrifice of 
 cargo is made good as General Average, the loss of 
 freight, if any, which is caused by such loss of cargo, 
 shall likewise be so made good." 
 
CHAPTER III. 
 
 PARTIAL LOSS. 
 
 General Principles. 
 
 In the United States, " Partial Loss" is, in practice, 
 used as synonymous with " Particular Average," and 
 instead of that phrase. It denotes, in general, every 
 kind of expense or damage, short of a total loss, which 
 regards a particular concern, and which is to he borne 
 by the proprietor of that concern alone. As between 
 the assured and the underwriter, it means losses of this 
 description, as far as the underwriter is liable. Thus the 
 loss of a sail split or blown away, may, in general, and 
 without referrence to the cause of the loss, be called a 
 Partial Loss; but, with respect to the underwriter, it is a 
 Partial Loss only, if the loss occurred under such circum- 
 stances as k» make the underwriter liable for it. 
 
 When the vessel arrives at her port of destination, or 
 reaches a port of distress, a survey is held on her to as- 
 certain and specify the damages she can be observed to 
 have sustained, and the vessel is properly repaired and 
 refitted. These repairs, if caused by a peril insured 
 
GENERAL PRINCIPLES. 215 
 
 against, after the deduction of a third new for old, 
 form a claim under the policy against the underwriter, 
 in the proportion the sum insured hears to the actual val- 
 ue, i. e. if the ship be not fully insured, the underwriter 
 can be called upon to pay only on a value within, or co- 
 extensive with the value insured ; for it would he absurd 
 to suppose that a ship-owner who only partially insures 
 his ship, should have all the benefit which he might 
 have secured if he had paid for an insurance on the full 
 amount of his interest. A very important question, 
 therefore, occurs as to the mode of estimating the am- 
 ount of the insurable interest ; since, the greater the 
 value is, at which the amount of the interest is fixed, 
 the smaller will be the sum which the insurer is liable 
 to pay on a given amount insured, if it be less than the 
 whole value. If $1,000 be insured in an open policy on 
 a ship worth $2,000 at the commencement of the risk, 
 which sustains a Partial Loss of $500 at a subsequent 
 period, when her value is diminished by wear and tear 
 and decay, and the consumption of provisions, to $1,500, 
 shall the underwriter pay 50 per cent, or 66 2-3 per cent, 
 of the loss ? According to the practice, he pays 50 per 
 cent. ; that is, the value of the ship at the commence- 
 ment of the risk, is the basis on which the Partial Lossis 
 estimated. The result is the same in a valued policy 
 in which the ship or other subject is put at an underval- 
 uation. Accordingly, an undervaluation, or an insur- 
 ance at an amount less than the value of the ship at the 
 commencement of the risk, operates unfavorably to the 
 underwriters in respect to PartialLossrepairs. 
 
 The species of risks usually insured against in marine 
 
216 PABTIAL LOSS, 
 
 policies are perils of the seas, fire, piracy and theft, bar- 
 ratry, capture, arrests and detentions. 
 
 Perils of the seas. 
 
 Comprehends those of the wind, waves, lightning, 
 rocks, shoals, collision, and in general, all causes of loss 
 and damage to the property insured, arising from the ele- 
 ments and inevitable accidents. 
 
 The damage that seas can do to a ship is by striking 
 her upperworks, by which bulwarks and staunchions, 
 boats, spars, harness and water casks, ropes and other 
 stores and materials may be carried away or broken ; 
 the chain-plate bolts may be broken and the rigging con- 
 sequently loosened ; the sea may carry away or damage 
 the rudder, the capstan and windlass ; it may break or 
 spring masts and yards, and burst sails ; it may cause 
 the vessel to roll so as to carry away her top-masts and 
 spars ; it may burst hatches, break sky-lights, and get 
 below into the cabin, destroying thereby perishable 
 stores, charts, books, instruments and furniture ; it may 
 throw the vessel on her beam-ends, and threaten her 
 with destruction ; it may strain the upperworks and the 
 decks so that water enters the ship's hold and require 
 her to be freed from it by the use of the pumps ; and it 
 may shake the vessel throughout so violently as to wrin- 
 kle the metal sheathing and strain her, causing de- 
 rangement of the caulking, the springing of butts and 
 the opening of seams, so as to make the vessel leak be- 
 low; and it may by falling on the decks break some of 
 
XJNDERWBITBBS LUBIIITT FOR DAMAGE TO SHIP. 217 
 
 the beams and other substantial parts of the fabric. 
 
 Underwriters liability for damage to ship. 
 
 Underwriters are liable for all damages, caused by a 
 peril insxired against, which happen to a sea worthy 
 ship, even though this damage be greater than would 
 have resulted, had the vessel been stronger. But they 
 are not liable for ordinary wear and tear. And, if cables, 
 sails, rigging, anchors, boats or the like,. give out and 
 are lost, under ordinary circumstances, without peculiar 
 strain or any known extraordinary risk, the loss will be 
 attributed to wear and tear, and not to a loss by a 
 peril of the sea. In some instances, the nature of the 
 loss determines the question of the underwriter's liabili- 
 ty. If a rope give way, generally it would be because 
 it was not strong enough. If timbers be broken, the 
 injury would generally imply extraordinary violence. 
 If the damage or loss fall on the spars, the sheathing or 
 upper- works, or boats, there must always be an inquiry 
 into the circumstances of the case, into the degree of vi- 
 olence which caused the loss, and the manner in which 
 the lost article was secured against injury. Thus, if a 
 boat be lashed on deck, only extreme violence would 
 tear it away. If hung from the davits, at the stern or 
 side, it is easily lost by no uncommon peril, and it may 
 be a question whether it were so secured at that very 
 time, as to be sea worthy, that is, able to encounter the 
 perils it must be expected to meet. So the indefinite 
 deterioration of the ship by straining, the opening of 
 
218 PARTIAL LOSS. 
 
 seams, or butt-ends, witliout a storm or violence, and 
 the like, are not covered by the policy. 
 
 In the adjustment of Partial loss on ship, it is to be 
 borne in mind, that the underwriters are liable to pay for 
 only what has been rendered necessary by accident. 
 It often happens with ships which are not new, that 
 in repairing the fresh damages, a number of old sores 
 and imperfections come to light, and are very properly 
 remedied as the work proceeds. When these repairs 
 have no connection with the disaster, they should be 
 charged to the owners, and not carried into the Partial 
 Loss column. But, the idea, entertained by some under- 
 writers, that all natural decay must be restored by the 
 owners, is erroneous. Though timbers may be found 
 defective, yet if broken by sea-perils, they must be re- 
 placed as part of the loss, the reason of the rule for de- 
 ducting one-third for new, is, that in repairs, much 
 natural decay may be necessarily remedied. Unless, 
 therefore, the old defect were such as to render the ves- 
 sel unseaworthy, no deduction is to be made on that ac- 
 count, for the cost of repairs. 2nd Parsons, 434 ; Fish 
 V. Commercial Ins. Co., 18 La., 77 ; Bepeyster v. Col. 
 Ins. Co., 2 Gaines, 85 ; Bepeau v. Ocean Ins. Co., 5 
 Cow, 63. 
 
 The destruction of a ship by worms is not a " peril of 
 the sea," because it is not an extraordinary circum- 
 stance. In certain waters, and at certain seasons, it is 
 a natural result of causes, always in operation, which 
 are to be expected ; and it may be likened to a loss by 
 wear and tear. It is, however, suggested by Mr. Phillips, 
 and approved by Chancellor Kent, that the underwrit- 
 
tJNDERWMTEBS LIABILITY FOE DAMAGE TO SHIP. 219 
 
 ers ought to be liable for the destruction of the ship's bot- 
 tom by worms, after the metal has been stripped off by 
 violent action of the perils insured against. In New 
 York, the underwriters generally allow a loss under such 
 circumstances. 
 
 In JShzard's Adoninistrators y. Marine Ins. Co., (11 
 Curtis, 215) the Supreme Court of the United States de- 
 cided, that if a vessel take the ground, and be injured, 
 and so exposed to worms, by which she is destroyed, 
 her destruction is attributable, not to her injury by 
 stranding, but to worms, provided the master had oppor- 
 tunity to repair the injury from stranding. 
 
 It was also decided by the same court, that if worms 
 ordinarily assail and injure vessels, in the voyage insur- 
 ed, a loss by them is not within the policy. 
 
 Damage caused by the vessel's grounding or stranding 
 is a loss by the peril of the seas within the policy, pro- 
 vided it do not happen in the usual course of naviga- 
 tion, as where a vessel is destined to a tide harbor, where 
 she expects to take the ground when the tide ebbs. 
 
 A vessel being, in the ordinary course of her voyage, 
 moored in harbor, floated when the tide was in, and took 
 the ground when the tide was low, and became hogged, 
 or strained all over in consequence. Held, that this did 
 not constitute a loss for which an underwriter was lia- 
 ble, as a loss from " perils of the sea," there having been 
 no accident. 1 Marsh, 218, 220 ; Millar, 183 ; ICaines, 
 234 ; 3 Wash, 159 ; 8 Peters, 557 ; 3 Camp, 133 ; 1 
 Phillips, 618, 628 ; 2 Arnould, 805. 
 
 To constitute a stranding, within the policy, the ves- 
 sel must be on the strand, under extraordinary circum- 
 
220 PABTIAL LOSS. 
 
 stances. Potter v. Suffolk Ins. Co. 2 Sumner, 197. 
 
 It has been decided in England, that a ship damaged 
 by taking the harbor ground in the regular course of the 
 Toyage, is a loss by the perils of the sea. In Fletcher v. 
 Inglis, 2 B & Aid., 315, a transport in the government 
 service, insured by a time policy for twelve months, was, 
 within the limits of the time, and in the course of such 
 service, taken into Boulogne harbor, where, on the ebb- 
 ing of the tide, the harbor bottom being hard and un- 
 even, she received damage by taking the ground, this 
 was held to be a loss by the perils of the sea. 
 
 It is sometimes necessary to heave a ship down, and 
 if she be injured while this is being done, there seems to 
 be no good reason why it should not be considered as 
 having happened by a peril of the sea, but it has been 
 decided otherwise. Thompson v. Whitrnore, 3 Taunt, 
 227. ' The underwriters, however, held themselves lia- 
 ble for this damage, as covered by the general clause. 
 
 In Phillips V. Barber, 5 B. & Aid., 161, a ship was 
 damaged owing to her being blown over by a violent 
 gust of wind, in a graving-dock, into which she had 
 been put for repairs, after having discharged her outward 
 cargo at her port of delivery, and in which there were from 
 two to three feet of water only, when the loss happened ; 
 this was held not to be a loss by the perils of the seas, as 
 alleged in the declaration, though the court admitted 
 that it would be recoverable within the general clause, 
 " other perils and misfortunes" under a count specially 
 describing the cause of loss. The court distinguished 
 this case ftom that of Fletcher v. Inglis (cited above), 
 on the ground that there the ship was, and here she 
 
RULE FOR DEDUCTING ONE-THIRD FOR OLD. 221 
 
 was not, in the ordinary course of the voyage when the 
 loss took place. See also, Ellery v. New Eng. Ins. Co. 
 8 Pick., 14. 
 
 The liability of the underwriters extends to any ex- 
 traordinary expenses necessarily incurred in consequence 
 of a peril insured against, as in raising funds for repairs ; 
 but not to the expense of wages and provisions of the 
 crew while employed on the repairs; nor while the ves- 
 sel is detained, as by an embargo. Parsons^ Maritime 
 law, vol. 2, s. 435; Orroh v. Commonwealth Ins. Co. 
 21 Pick., 456, 469. 
 
 Rule for deducting one-third new for old 
 
 The general custom in the United States is, to deduct 
 one-third from the cost of labor and materials employ- 
 ed in repairing the ship, including chain cables, wheth- 
 er the ship be new or old, but no deduction is made from 
 the cost of anchors. In practice, this deduction is gen- 
 erally made from the incidental expenses incurred in 
 making the repairs, such as towing the vessel to the dock 
 where she is to be repaired, dock-dues, hire of staging 
 &c. ; but in Potter v The Ocean Ins. Co., 3 Sumner, 45, 
 Justice Story decided that the deduction was to be 
 made from the labor and materials only employed in the 
 repairs, and from the new articles purchased in lieu of 
 those which were lost or destroyed, and not from inci- 
 dental expenses incurred in making the repairs, which 
 do not in any way enhance the value of the ship ; as, 
 the expenses of towing the vessel to and from the dock 
 
222 GENERAL AVERAGE. 
 
 where the repairs were made. The policies of insurance 
 on ships, in ordinary use in Boston, require a deduction 
 of one-third from the labor and materials ; in New York, 
 Philadelphia and prohably most other ports in the Uni- 
 ted States, they provide, that in case of a claim for loss 
 or damage a deduction of one-third from the cost of re- 
 pairing the ship shall be made. The terms cost of re- 
 pairing seem to be comprehensive enough to include 
 the incidental expenses of towing the vessel to the place 
 of repairs, the dockage, use of stages, cartage &c. Whe- 
 ther the value of the old materials should be deducted 
 from the cost of repair, before the one-third is deducted 
 is not settled by authority ; but the rule in New York 
 and Massachusetts is, that the value of the old materi- 
 als is first to be deducted from the gross amount of ex- 
 penses, and then one-third new for old is to be deducted 
 from the balance. Under Philadelphia policies, the one- 
 third is first deducted, and from the remainder is taken 
 the value of old materials. Copper or yellow sheathing 
 is treated by its own peculiar rule. 
 
 In England, the rule is to deduct one-third from the 
 cost of new articles, with the exception of copper or yel- 
 low sheathing, which is treated, as in the United States, 
 in a way peculiar to itself, and except, also, from the 
 cost of anchors, from which nothing is deducted, and ex- 
 cept, also, chain cables, from which one-sixth is deduc- 
 ted. One-third is also deducted from the cost of the 
 labor employed in repairing the ship ; but not from gra- 
 ving-dock dues, use of caulking-stages, cartage and la- 
 bor and boat hire in taking a vessel into and out of dock. 
 If the vessel were a new vessel, i. e., on her first voyage, 
 
PARTIAL LOSS. 223 
 
 when the injury occurred, no deduction is made. Hop- 
 kins, 106 ; Bailey, 91-98. 
 
 Germany. — By the new Grerman Code, §711-12, if, at 
 the time of the casualty, the vessel have not heen afloat 
 a year, the whole amount of repairs are to he allowed ; 
 and if the separate parts of the ship or its appurtenances 
 to he made good have not heen in use a year, the whole 
 amoTint is to he allowed. In other cases, a deduction 
 of one-third is made from the whole amount of the cost 
 of repairs, except from chain cahles, from which one- 
 sixth is to he deducted, and nothing from anchors. 
 
 France. — According to M. Frignet, §637, and M. 
 Cauvet, §387, one-third is, hy the law or custom of 
 France, to he deducted from the value of such new arti- 
 cles or materials only as are liahle to he impaired hy use 
 or age, and not from anchors, chains, masts, spars and 
 whatever is in metal ; and nothing is to he deducted 
 from the labor in making repairs, nor from the repairs of 
 a new ship just off the stocks. The Paris, Havre and 
 Marseilles policies of insurance in ordinary use stipu- 
 late, however, for a deduction, in all cases, of one-third 
 from the cost of repairs, and of all new articles except 
 anchors, from which no deduction is to he made, and 
 chain cahles, from which fifteen per cent, is to be made, 
 and also for one-third of the cost of the labor in making 
 repairs. 
 
 What deduction is made on copper sheathing 9 
 The following deduction is provided for hy a special 
 
224 GENEBAL AVEKAGE. 
 
 clause in the New York policies : "A deduction of one- 
 fortieth from the expense of repairing or replacing the 
 metal sheathing, or any part thereof [after first deduct- 
 ing the value of the old m,etal and nails), shall he made for 
 every month since the vessel was last sheathed, until the ex- 
 piration of forty months, after which time the cost of re- 
 metaling or repairing the same, shall be wholly borne by 
 the assured." And the following has, for many years 
 been the condition of the Boston offices ; " It is especial- 
 ly agreed, that instead of deducting one-third for new 
 on the article of copper sheathing in partial loss, there 
 shall be deducted two and a half per cent. of the cost of 
 re-coppering, after deducting the value of the old copper 
 and nails for each and every month the copper shall 
 have been on the vessel at the time of re-coppering ; and 
 if the copper shall have been on forty m,onths, the cost of 
 re-coppering shall be wholly borne by the assured." But 
 in March, 1867, the ahove condition was rejected, and 
 the following condition was adopted by the Boston offi- 
 ces, and incorporated in their policies ; * It is especially 
 agreed, that instead of deducting one-third, on the ex- 
 pense of re-metaling, including docking and caulking, 
 there shall he deducted two and a half per cent, of the cost 
 of re-metaling, dockage and caulking after deducting 
 the value of the old copper and nails, for each and every 
 month the metal shall have been on the vessel, at the time 
 of re-metaling; and if it have been on three years, the cost 
 shall he wholly borne by the assured. In case the vessel 
 shall be on a single bottom, the same rule shall apply to 
 docking and caulking." 
 It will be observed that the copper clause recently 
 
DEDUCTION ON COPPER SHEATHING. 225 
 
 adopted in Boston differs essentially from tJie New Yorh, 
 with reference to dockage and caulhing. 
 
 In England, by the " Custom of Lloyd's," underwri- 
 ters do not pay for stripping and re-sheathing of the 
 bottom, unless the vessel have touched the ground or 
 been in contact with some body below the water's edge. 
 
 The rule is general in the United States, that a weight 
 of metal equal to the quantity stripped off, is allowed 
 in full. A deficiency in weight is charged to the 
 underwriters ; an excess of weight is charged to the 
 owners. Where copper is stripped off, and replaced 
 with yellow metal, the owners are entitled to claim 
 from the underwriters, an additional amount equal to 
 the difference between the cost of copper and yellow 
 metal. 
 
 Mode of sheathing vessels. 
 
 The copper or metal used in sheathing vessels is 
 divided into three thicknesses, consisting of twenty, 
 twenty-four, and twenty-eight ounce ; but oftener it is 
 equally divided into four thicknesses of twenty-two, 
 twenty-four, twenty-six, and twenty-eight ounce. The 
 twenty-eight ounce should cover the bows diagonally 
 jfrom the fore-mast, at load line, to the heel of the fore- 
 foot ; the twenty-six ounce should run parallel from the 
 heel of the fore-mast to the main-mast ; the twenty-four 
 ounce should run from the heel of the main-mast to 
 the load line at the mizzen-mast ; and the twenty-two 
 ounce should cover all abaft the mizzen-mast, except 
 15 
 
226 PARTIAL LOSS. 
 
 the radder, which should he sheathed with twenty-six 
 ounce, the hoardings with twenty-eight ounce, and the 
 keel with twenty-six ounce. 
 
 To ascertain the quantity of copper required to sheathe 
 a vessel, measure the length of the keel, and find how 
 many sheaths it will take to extend the whole length, 
 allowing 3 feet 11 inches for the length of ^ a sheet of 
 copper ; then ascertain the numher of courses from the 
 bottom of the keel to the copper line, allowing one foot 
 one inch for one course of copper ; then multiply the 
 numher of courses by the number of sheets on the keel, 
 and the product gives the number of sheets required for 
 each side. 
 
 A full built ship requires about l-20th more copper 
 than a clipper. 
 
 Sheets of copper are usually punched for three and 
 five rows of nails. 
 
 The sheets punched with three rows require 39 nails. 
 
 The sheets punched with five rows require 49 nails. 
 
 Loss by Barratry. 
 
 Barratry is one of the perils insured against in our 
 common printed forms of policy ; it is the fraudulent 
 conduct on the part of the master, in his character of 
 master, or of the mariners, to the injury of the owner, 
 and without his consent, and it includes every breach 
 of trust committed with dishonest views. When we 
 consider how great are the opportunities, for wrongful 
 dealing, to the masters and crews of merchant ships, 
 
LOSS BY BARRATRY. 227 
 
 distant from obserration and every sort of restraint, and 
 isolated in the solitary paths of the ocean, it is a loss 
 remarkably uncommon. The scope of the word has 
 become very wide, and it now embraces every volun- 
 tary act of the persons in possession of a ship at sea, in 
 producing any loss or misfortune. 
 
 All loss and damage under this head are claimable 
 from the underwriters ; and though they have no voice 
 in the appointment of a master, yet they are responsible 
 for his acts and his conduct. There is nothing which 
 will exonerate the underwriters from these consequences, 
 except the absolute incompetency of the master, his offi- 
 cers and crew, which, if it can be proved, shows that the 
 ship was unseaworthy from the commencement of her 
 voyage, and therefore that the policy was void from the 
 first. 
 
 It is necessary that the master should have no under- 
 standing or collusion with his owners in his barratrous 
 acts. If an owner's concurrence can be shown, the act 
 ceases to be barratrous. It may be a conspiracy be- 
 tween the master and the owner ; but underwriters are 
 released from any loss which comes under the head of 
 barratry mentioned in the policy, if there be knowledge 
 and complicity on the part of the owners. And there- 
 fore, if the master be owner, himself, there can be no 
 barratry. Mercardiery. Chesapeake Ins. Co., 8 Cranch., 
 39. 
 
 The most glaring cases of barratry, are those when 
 the destruction of the ship is compassed by the master 
 and crew ; as by boring holes in her, and so causing the 
 vessel to founder ; the setting her on fire ; or their 
 
228 PARTIAL LOSS. 
 
 carrying her away and selling or otherwise getting rid 
 of her, so as to possess themselves of the proceeds of the 
 ship and cargo. 
 
 The assured cannot recover for a loss by barratry, 
 unless the barratry produced the loss. Swan v. The 
 Union Ins. Co., of Maryland, 4 Curtis S. C. R.,188. 
 
 In the case of a valued policy upon a ship, by which the 
 underwriter is not to he liable for a Particular Ave- 
 rage unless it shall amount to Jive per cent., is the 
 per centage to be reckoned upon the valuation after 
 deducting the premium ? 
 
 In Brooks v. Oriental Ins. Co., 7 Pickering's Rep., 
 258, it was contended by counsel that the five per cent, 
 is to be calculated upon the valuation in the policy, and 
 not upon the balance after deducting the premium. 
 That the premium is to be considered as so much money 
 expended upon the vessel. That the parties have fixed 
 on the sum stated in the policy, as the value of the 
 vessel for all the purposes of the policy. And cited, 
 Center v. Amer. Ins. Co., 7 Cowen, 564 ; 1 Phillips 
 on Ins., 314, 321, 402 ; Benecke, 119, 157 ; Stevens on 
 Av., 168. But, that possibly, in making up a General 
 Average the premium may be deducted. Phillips, 358. 
 
 Putnam, J., however, said : "we believe the custom is 
 not uniform, but that the prevailing usage is, to deduct 
 the premium from the valuation, and to calculate the 
 per centage upon the balance ; (2 Phillips, 213, 346). 
 And we adopt that rule. It applies only to the adjust- 
 ment of Particular, and not to General Average losses; 
 
GENERAL RESPONSIBILITY OF INStJBERS. 229 
 
 for in the latier, the ship, cargo and freight are to con- 
 tribute respectively, according to the actual value of 
 each, and the owner of one of these subjects of Contri- 
 bution, is not bound by the agreement which the 
 owner of another of them may have made with the 
 insurer." 
 
 General responsibility of insurers. 
 
 The insured is never to be indemnified against his 
 own act ; nor against loss directly caused by his own 
 personal misconduct. 
 
 When the principle is applied to the misconduct of 
 the agents of the insured, the rule in general is, that 
 the principal is liable for the defaults of his agents, 
 when acting as such, and he is not insured against loss 
 thence arising, unless it be clear that the insurer intended 
 to take upon himself these risks. 
 
 As a general rule, the insurers are not liable for a 
 loss against which they insured the oAvner, if it be 
 caused, directly, by the mistake, ignorance or neglect, 
 of the master or crew. 
 
 The question, how far the underwriters are liable for 
 a loss caused by a peril insured against when the ves- 
 sel is in an unseaworthy condition, owing to the 
 negligence of the master and crew, does not seem to be 
 entirely settled by the authorities. It is very clear that 
 the underwriters do not insure against the negligence 
 of the master or crew, nor losses arising directly from 
 such negligence. It is, however, settled in both 
 
230 PARTUL LOSS, 
 
 England and the United States, that if the loss be caused 
 by a peril insured against, the underwriters are liable, 
 although the remote cause be the negligence of the 
 master and crew, and this whether barratry be insured 
 against or not. Walker v. Maitland, 5 B. & Aid., 171 ; 
 Shores Bentall, 7 B. & C, 798 ; Bishop v. Pentland, 
 7 B & C, 219 ; Dixon v. Sadler, 5 M & W., 405, 415 ; 
 Patapsco Ins. Co., v. Coulter, 3 Peters, 222 ; Williams 
 V. Suffolk Ins. Co., 3 Sumner, 270, 276 ; Draper v. 
 Comm. Ins. Co., 4 Duer, 234, 239 ; Nelson v. Suffolk 
 Ins. Co., 8 Gush., 477, 496 ; Perrin v. Protection Ins. 
 Co., 7 Ohio, 147. 
 
 In Matthews v. The Howard Ins. Co., 11 New York 
 Reps., 9, it was held : " Where the immediate cause of 
 loss to a vessel is a peril expressly insured against, it is 
 not a defence that the negligence of the master and 
 crew occasioned such peril or brought her within it." 
 
 In Am. Ins. Co., v. Ogden, 20 Wend., 287, it 
 was held, that where a total loss could be attributed to 
 the owner's neglect in not furnishing funds, the under- 
 writers are discharged. 
 
 Underwriters are not bound to supply funds in a 
 foreign port for repairs. They are simply bound to pay 
 the Partial Loss. Bradlie v. The Maryland Ins. Co., 
 12 Peters, 378. 
 
 The insured always warrants, by construction of law, 
 that his ship is able to encounter safely all ordinary 
 risks, for this is precisely what is meant by sea worthi- 
 ness ; and it amounts to an agreement to warrant the 
 insurers against all ordinary risks. In Barnewall v. 
 Church, 1 Gaines, 217, 234, Mr. Justice Thompson 
 
GENERAL RESPONSIBILITY OF INSURERS. 231 
 
 said: "The insurer undertakes only to indemnify 
 against the extraordinary and unforeseen perils of the 
 sea, not against the ordinary perils to which every ship 
 must he exposed in the usual course of the voyage pro- 
 posed." In Coles V. The Marine Ins. Co., 3 Wash. C. 
 C, 159, Mr. Justice Washington said : " If the loss of 
 the vessel arose from the ordinary circumstances of a 
 voyage, or from sea damage, or wear and tear, which, 
 without the action of any extraordinary causes, was to 
 be expected, the insurer is not liable. But if it hap- 
 pened in consequence of the violence of the winds and 
 waves, running on rocks or the like, these are perils 
 against which the insurer agrees to indemnify. It is 
 not sufficient for the insured to prove that there were 
 storms during the voyage, unless he can fairly trace the 
 injury sustained, to that cause." 
 
 What are ordinary, and what extraordinary perils, is 
 a question of much difficulty. In Magnus v. Buttemer, 
 11 C. B., 876, 9 Eng. L. & Eq., 461, a vessel in the 
 ordinary course of her voyage, moored in a tide harbor, 
 and took ground when the tide fell. In consequence 
 of this she was hogged and strained all over. It was 
 held that the underwriters were not liable. In Potter 
 V. Suffolk Ins. Co., 2 Sumner, 197, under very similar 
 circumstances, Mr. Justice Story held, that unless there 
 were inherent weakness in the vessel, such damage 
 could only be occasioned by an unusual and extraordi- 
 nary accident in grounding upon the ebbing of the tide, 
 which would be a peril of the sea. And in Bullard v. 
 Roger Williams Ins. Co., 1 Curtis' C. C, 148, Mr. 
 Justice Curtis held, that although the law required 
 
232 PAKTIAL LOSS. 
 
 vessels to be sufficiently strong to resist the ordinary 
 action of the seq/ in the voyages for which they might 
 be insured, yet that the ordinary action of the wind and 
 sea did not mean the winds and sea to be ordinarily 
 met in the voyage insured. He accordingly held that 
 heavy cross seas were not the ordinary action of the sea 
 within the meaning of this rule, however common 
 they might be in the voyage insured. 
 
 The peril of capture is not subject to degrees, but is 
 always considered to be extraordinary, .and in all oases 
 gives the assured the right of abandoning and claiming 
 for a total loss. But other perils of the seas may be 
 ordinary or extraordinary, and so may their effects; 
 and unless the degrees of a peril and its effects are both 
 extraordinary, the assured has no claim for indemnity. 
 But the effect may itself show that the cause must have 
 been extraordinary. 
 
 Though the operation of a peril insured against is 
 extraordinary , if its consequences be not so, it is not a 
 loss within the policy. Stranding is usually an extra- 
 ordinary incident, yet if its consequences b6 not 
 extraordinary, the .assured has no claim against the 
 underwriters. In a case of a ship's being strained, and 
 accordingly weakened, and injured, in consequence of 
 stranding. Mr. Justice Baldwin said : " Invisible, un- 
 certain and conjectural damages are never the subject 
 of remuneration. I apprehend the injury is not the sub- 
 ject of adjustment, unless it be capable of repair in the 
 ordinary course of business. Sage v. Middletown Ins. 
 Co. 1 Conn. R. 239. And so it -vsls^jS held by the Su- 
 preme Court of Massachusetts, the underwriters are not 
 
GENERAL EESPONSIfilLITY OF INSUEERS. 283 
 
 answerable for indefinite straining and deterioration, 
 ■which cannot be repaired and of which no specific esti- 
 mate or evidence can be given. Orrok v. Common- 
 wealth Ins. Co. 21 Pick., 456 ; Crofts v. Marshall, 7 
 C. & P., 597 ; Peek v. Suffolk Ins Co., 7 Pick, 254. 
 
 In the case of Giles v. Eagle Ins. Co., 2 Metcalf 's 
 Reps. 140. The schooner " Good Hope," sailed from 
 Gloucester, in good order and condition, within the time 
 specified in the policy, for the Bay of Chaleur, on a fishing 
 voyage. In a heavy gale, she dragged her anchors and 
 went ashore ; cargo was dischar^d ; vessel got off", and 
 subsequently repaired. After repairs she was seawor- 
 thy ; a surveyor was called to estimate the damages 
 done to her by going ashore, and which had not been 
 repaired. The survey stated (and it was proved in court 
 by experts) that the whole body of the schooner was in- 
 jured ; that some of the timbers were lifted ; some of 
 her treenails started; and that the injury from the 
 strain or hogging could not be perfectly repaired, except 
 by rebuilding her. That the hogging remained after 
 the repairs, and that it afiiects not only the beauty but 
 also the strength of the vessel. . And the damage from 
 the hogging and strain was estimated from $800 to 
 f 1000. It was contended by the counsel for the under- 
 writers that this is an imaginary damage, for which the 
 underwriters are not responsible ; and that no such 
 charge has heretofore been allowed in the law of insur- 
 ance. Putnam, J. held : " The case is not without its 
 difficulties. ,The assured cannot be permitted to claim 
 for unseen and imaginary damage ; for there can be no 
 standard to measure the correctness of the estimate; and 
 
284 PARTIAL LOSS. 
 
 the result would frequently be an allowance against the 
 insurers commensurate with the wants to make up a 
 total loss, wherewith to charge the underwriters. But 
 in the case before us, in consequence of the darnage 
 within the perils of the policy, some of the timbers have 
 been lifted, and a vessel that is found to have been one 
 of the first class, is left, after her repairs, so misshapen 
 as essentially to afiect her value. There is no mistake 
 3,bout the main fact. She is obviously so much hogged 
 as not to be perfectly repaired, unless by rebuilding her. 
 She has been made sf&. worthy, but it is in evidence that 
 she is not so strong as she would be were she as straight 
 as she was built. Now the assured is entitled to an in- 
 demnity. If an insurance should be obtained upon the 
 schooner as she now is, and a damage should happen to 
 her, all that could be required of the underwriter would 
 be to put her in as good state and condition as she was 
 when the policy was made. It could not, on any prin- 
 ciple of indemnity, be required that she should be put in 
 better shape and condition. Here, at the time of the 
 insurance, this schooner was of the first class. By the 
 perils of the sea she has received an injury obvious to 
 the eye, and essentially affecting and diminishing her 
 value. How can it be said that the plaintiffs are indem- 
 nified, if compensation should not be made for this dam- 
 age ? We do not intend to shake the doctrine which 
 we have recognised touching imaginary or theoretical 
 strains. It may be, theoretically speaking, that when- 
 ever a ship takes the ground, all her timbers, from the 
 keel to the water-ways, must of necessity be in some de- 
 gree disjointed. But this is not such a case. Here the 
 
SEAWORTHINESS. 235 
 
 damage is actual, visible and tangible. And if this 
 vessel should hereafter take the ground, or encounter ex- 
 traordinary seas, it is not to be expected that she should 
 stand the shock as well as if her timbers had not been 
 lifted and disjointed. In the present instance, it is to 
 be observed that there is no evidence of any design to 
 make up a case, or to strain a point with a view to a 
 certain result. But the claim is put forth and proved as 
 a real damage from the injury sustained within the per- 
 ils of the policy, and is to be allowed." An allowance 
 of $800 was made. 
 
 Seaworthiness. 
 
 There is in every policy an implied warranty that the 
 ship is seaworthy when the policy attaches. This means, 
 that the vessel is able to resist the ordinary attacks of 
 wind and weather, and is completely equipped and man- 
 ned for the voyage, with a sufficient crew, and with suf- 
 ficient means to sustain them, and with a captain of 
 general good character and nautical skill. 
 
 There is nothing in the law of marine insurance more 
 important, both with a view to the benefit of commerce 
 and the preservation of human life, than to enforce, as 
 far as possible, a strict compliance with this warranty ; 
 as, otherwise, the efiect of insurance might be to render 
 those who were protected from loss by the policy exceed- 
 ingly careless about the condition of the ship and the 
 consequent safety of the crew. 
 
 The courts, accordingly, have held that the seawor- 
 
236 PARTIAL LOSS. 
 
 thiness of the ship for the voyage, when she sails, is a 
 condition precedent to the underwriter's liability for any 
 loss incurred in the course of the voyage. Deshon v. 
 Merchants' Ins. Co. 11 Metcalf, 199, 207. 
 
 Of so much importance has the seaworthiness of ships 
 always been esteemed, both in respect of claims which 
 may be made against underwriters for damages, or as a 
 protection against claims made on the ship by proprie- 
 tors of goods which have received damage, that the no- 
 tarial document called the protest, always commences 
 with a declaration that the ship at the time of her sail- 
 ing, was " stanch, strong and sufficiently manned and 
 furnished for the intended voyage, ' — or words to the 
 same effect. This form has come to be considered so 
 completely a part of a protest that some notaries and 
 consuls keep the preamble which contains these words, 
 in print, to be used as a matter of course. 
 
 Any defect which may endanger the ship, though 
 unknown to the assured, will discharge the underwri- 
 ters. It is not necessary to inquire whether the owners 
 acted honestly and fairly in the transaction ; for it is 
 well understood that however honest the intentions and 
 conduct of the owner may be, if he be mistaken in the 
 fact, and the vessel be really not seaworthy, the under- 
 writers are not liable. 
 
 It is the duty of the assured to keep his vessel sea- 
 worthy during the voyage, if it be in his power to do 
 so. If, therefore, she be disabled at sea, though she re- 
 main covered by the policy until she reach a port, she 
 must leave that port, wherever it may be, in a seawor- 
 
SEAWORTmNESS. 237 
 
 thy condition, provided she can there be made sea- 
 worthy. 
 
 If a vessel, in the course of her voyage, put into a port 
 where repairs can be made, and afterwards sail there- 
 from with a defect in her bottom, produced during the 
 voyage by the perils of the sea, and which causes her to 
 founder, the insurers are liable for the loss, unless the 
 captain have reasonable cause to suspect the existence of 
 the defect when the vessel was in port, or had reasona- 
 ble cause to believe that she could not proceed safely 
 home without having the same repaired. 11 Pick., 
 227 ; 1 Sumner, 218 ; 8 Peters, 558 ; 3 Mass., 331 ; 
 3 Mass., 485. 
 
 The absence or insufficiency of ballast, in a vessel of a 
 build which required it, renders her unsea worthy, and 
 releases the underwriters from all liability. Deblois v. 
 Ocean Ins. Co. 16 Pick., 303 ; 2 Phillips, §706 ; 1 Ar- 
 nould, p. 681. 
 
 The owner is answerable on his contract, for latent de- 
 fects, even though the ship had been previously visited 
 by experienced shipAvrights, and the defect had escaped 
 detection. 3 Kenfs Com., p. 288, and oases there 
 cited. 
 
 It is not sufficient to satisfy the warranty of seawor- 
 thiness, that the ship has been pronounced seaworthy 
 by skilful shipwrights, after a careful examination. 
 Brig Casco, Davies, D. C. R. 192 per Ware, J ; 3 
 Kenis Comm., p. 391, note. 
 
 Seaworthiness of the ship at the beginning of the risk, 
 is in law, presumed, until it have been shown that the 
 vessel, without incurring more than ordinary perils has 
 
S38 PARTIAL toss. 
 
 proved unfit to make the stipulated voyage. The bur- 
 den of proof is then shifted upon the assured. Seawor- 
 thiness is a question of fact for a jury. Myers v. Girard 
 Ins. Co., 26 Penn, 192 ; Field v. Ins. Co., 3 Md., 244 ; 
 3 Kent^s Comm., p. 391, n. 
 
 Seaworthiness, at the commencement of the voyage, 
 is a condition precedent, and if seaworthiness do not 
 then exist, the policy is void, and the insurers are not 
 responsible for subsequent loss, even if it arise from 
 another cause ; for the policy never attached. StarbucJc 
 V. N. E. Ins. Co. 19 Pick. R., 199 ; 2 Parsons, 139 ; 
 3 Kent, 392, n. 
 
 Where a ship is insured for a voyage it is the duty of 
 the owner to keep her seaworthy during the voyage, if 
 it be in his power, and if she be rendered otherwise, by 
 neglect of the master or owner, the underwriters are dis- 
 charged. 11 Pick. K, 232. 
 
 The implied warranty of seaworthiness is, that she 
 shall be able to perform her voyage with the cargo with 
 which she is then loaded. Abbott v. Browne, 1 Caines, 
 S. C. of N. Y. Reps., 292. 
 
 It is a condition precedent, in all contracts of insur- 
 ance, that the vessel shall be seaworthy at the incep- 
 tion of the risk, and it is well settled law, that in the 
 event of vessels tinder a " time policy," or for successive 
 passages, it is incumbent on the assured to see to it that 
 the vessel is seaworthy at the time of her departure 
 from each port she enters during the life of the policy of 
 insurance, by which she is covered. 2 Parsons, Mar. 
 Law, 139. Capen v. Washington Ins. Co., 16 Law 
 Reporter, 4651. 
 
SEAWORTHINESS. 239 
 
 In Paddoch v. Franklin Ins. Co. 11 Pickering's R., 
 235. Shaw, C. J., held : " There can he no douht, that 
 after a vessel has met with such accidents, disasters and 
 losses, as to weaken and disable her, or by age and de- 
 cay, worms, wear and tear arising from long service, and 
 the ordinary pressure and action of the winds and sea, 
 she has become incapable of proceeding with reasonable 
 safety, it is the duty of the owner to procure the necessa- 
 ry repairs and supplies as soon, and as effectually, as he 
 reasonably can do so, under the circumstances in which 
 the ship is placed. If in a remote sea, or at a desolate 
 or savage island, a temporary expedient, however inad- 
 equate to the wants of the ship, must be sufficient, being 
 the best which can be resorted to. But if a vessel in 
 such a condition reach a port where repairs and sup- 
 plies can be obtained, and leave such a port without 
 obtaining them, it is a fault and negligence on the part 
 of the owner. If the ship be afterwards lost by a cause 
 which may be attributable to the insufficiency of the 
 ship, and which cannot be clearly traced to some inde- 
 pendent and wholly distinct cause, as capture or fire, the 
 underwriters are discharged, as well on the ground 
 that the loss arose from the fault and negligence of the 
 ship-owner, 'as from ordinary perils or internal decay 
 and defects of the ship, which are perils not insured 
 against." 
 
 There is no presumption that defects in the hull, found 
 during the voyage, were produced by perils of the 
 sea. The burden is on the assured to prove this. Bal- 
 lard V. Roger Williams^ Ins. Co., 1 Curtis' R., 148. 
 
 Seaworthiness being a condition precedent to the at- 
 
240 PAETIAL LOSS. 
 
 taching of the policy, some proof of its fulfilment must 
 in all cases be first given by the assured. Moses v. Sun 
 Mutual Ins. Co. 1 Davies' R., 159. 3 Kenis Comm. 
 392, n. 
 
 In Copeland Sf others v. New Eng. Mar. Ins. Co., 2 
 Metcalf's Sup. Court of Mass. Reports, 439, Shaw, C. J., 
 held : " We consider it a rule of the law of insurance, as 
 settled here (Massachusetts), that in addition to the iin- 
 plied warranty which applies to the state of the vessel at 
 the commencement of the voyage, and must be strictly 
 complied with as a condition precedent, it is the duty of 
 the assured from time to time, during the voyage, to re- 
 pair and keep her in a suitable condition for the service 
 in which she is engaged, and if they fail to do so, and a 
 loss happen which is attributable to that cause, the 
 assured, and not the underwriters, must sustain it." 
 
 If the vessel spring a leak soon after sailing, without 
 having met with any peril, this raises a presumption 
 that she was unseaworthy when she sailed. But this 
 presumption may be rebutted by proof that she was actu- 
 ally seaworthy when she sailed. And when a vessel is 
 shown to have met with a sea-peril, if the insurer claim 
 that the damage was owing to her being unseaworthy, 
 and not to the sea-peril, the burden is on him to show this, 
 {Barnwell v. Church, 1 Caines), 217 ; and if the vessel 
 sail and never be heard from, the fact of her seaworthi- 
 ness is presumed, in the absence of evidence to the con- 
 ia:ary. Deshon v. Merchants' Ins. Co., 11 Metoalf, 199, 
 207. 
 
 In England it seems now to be held, that negligence of 
 the master and crew, or of persons employed to load the 
 
SEAWORTHINESS. 241 
 
 vessel at an intermediate port, will not exonerate the 
 underwriters, although she be lost in consequence of such 
 negligence. Redman v. Wilson, 14, M. Sf W., 476. 
 
 If, after the risk has commenced, she become unsea- 
 worthy by reason of an accident or peril, then the policy 
 continues to attach, until she can again, by reasonable 
 endeaTors, be restored to a seaworthy condition. It is 
 indeed, the duty of the master, for which the owner is 
 responsible, not only to do all that can be done to pre- 
 vent her unseaworthiness, but to do all that should be 
 done to restore her seaworthiness. If, therefore, she be 
 disabled at sea, though she remain covered by the poli- 
 cy until she reach a port, she must leave that port, 
 wherever it may be, in a seaworthy condition, provid- 
 ed she can there be made seaworthy. And analogy of 
 reasoning would require that a master, finding his ship 
 unseaworthy at sea, should make, not necessarily at once 
 for the nearest port, but for a port of repair, without un- 
 necessary delay, because otherwise he would expose the 
 vessel to unreasonable and unnecessary danger. So, too, 
 if the unseaworthiness could, without great sacrifice, 
 be cured at sea, by help from another vessel, it should 
 be the master's duty to obtain this help. Whether or 
 when the insurers are discharged by the master's non- 
 fulfilment of such duties, is a more difficult question. 
 On the one hand, although the misconduct or neglect of 
 the officers and crew be not among the dangers against 
 which the owner is insured, yet if the subject matter in- 
 sured be lost by a peril caused by such negligence, the 
 underwriters are held liable therefor. On the other 
 hand, the master is the representative and agent of the 
 16 
 
242 PARTIAL LOSS. 
 
 owner, with power and authority, and it is his duty to 
 fulfil for him this warranty of seaworthiness, and a 
 breach of it by such an agent is a breach by the princi- 
 pal. Perhaps no better answer, or none which more 
 nearly reconciles the conflicting authorities, can be giv- 
 en, than that the decision of the question must depend 
 upon whether the person in command of the ship, then 
 acts only in discharge of his personal duties as master 
 or mate, or acts, or ought to act as the representative 
 and agent of the master. And, generally, the conclu- 
 sion would be, that if the ship be seaworthy in the be- 
 ginning, a subsequent unseaworthiness, caused by neg- 
 ligence or error of officers or crew, does not take away 
 the responsibility of the insurers. Leaving it still as a 
 rule of law, that it is a duty of the master to repair un- 
 seaworthiness in the first port, the disregard of which is 
 a breach of the warranty by the owner. 2 Parsons^ 
 Mar. Law, 140 ; Paddoch v. Franldin Ins. Co., 11 
 Pick., 227; Hazard v. New England Ins. Co., 1 Sum- 
 ner, 218, 230 ; 8 Peters, 557 ; Deblois v. Ocean Ins. Co. 
 16 Pick, 303, 308 ; Starbuck v. Neio England Marine 
 Ins. Co. 19 Pick, 198; Copelandv. N. England Mar. 
 Ins. Co. 2 Metcalf, 432, 443. 
 
 It must, however, still be remarked, that this breach 
 does not always and necessarily discharge the under- 
 writers, but only suspends their liability. Thus, if a 
 ship lose her anchor in a port where she can get no 
 other, or lose her boat at sea, or lose some of her crew ; 
 and reach a port where these wants could be supplied, 
 but leave it without supplying them, and proceed to 
 another port and there supply them, and so become 
 
SEAWORTHINESS. 243 
 
 again seaworthy, the liability of the insurer revives. It 
 was so far suspended during the interruption of the sea- 
 worthiness, that if a loss had happened in that interval, 
 that is, after the master could have supplied her wants, 
 and before he did supply them, and this loss happened 
 by reason of the insufficiency or unseaworthiness of the 
 ship, the underwriters would not have been liable. 2d 
 Parsons, 142. 
 
 In Paddock v. Franklin Ins. Co., 11 Pick., 227, 234, 
 Shaw, C. J. said : " It would seem to be more consistent 
 with the nature of the contract, the intent of the parties, 
 and the purposes of justice and policy, to hold, that after 
 the policy has once attached, the implied warranty 
 should be so construed as to exempt the underwriter 
 from all loss or damage, which did or might proceed 
 from any cause thus warranted against ; but to hold 
 him still responsible for those losses which by no possi- 
 bility could be occasioned by peril increased or affected 
 by the breach of such implied warranty." See also, 
 Taylor v. Lowell 3 Mass., 331 ; Merchants^ Ins. Co. v. 
 C/apj?, llPick., 56; CajJen v. Wash. Ins. Co., Sup. 
 Jud. Ct., Mass., 16 Law Reporter, 465 ; Starhuck v. N. 
 E. M. Ins. Co.., 19 Pick. 198 ; Chase v. Eagle Ins. 
 Co., 5 Pick., 51 ; Am. Ins. Co. v. Ogden, 15 Wend., 
 532; 20 Wend., 287; Peters v. Phoenix Ins. Co., 3 S. 
 & R. 25; Hazard Y. N. E. Mar. Ins. Co., 1 Sumner, 
 218, 230. 
 
 The ship is unseaworthy if she be without a pilot, 
 where usage and the reason of the case require that she 
 should have one, whether in entering or leaving a port. 
 
244 PARTIAL LOSS. 
 
 Deviation. 
 
 Insurance is a contract whereby, for a stipulated pre- 
 mium, the underwriters agree to indemnify the assured 
 against certain perils or risks ; and that the contract 
 may be fair between the parties, the premium must be 
 adequate, or in due proportion to the risks. But this 
 would be impossible unless the risks can be, to a certain 
 extent, known beforehand, and therefore estimated. 
 
 The underwriter undertakes to indemnify the assured 
 upon the implied condition, only that the risk shall re- 
 main precisely the same as it appears to be on the face 
 of the policy. If the insurance be upon a voyage, it 
 must be distinctly stated ; and its course and termini 
 being known, the underwriters can judge of the risks to 
 be encountered on that voyage. It is, therefore, always 
 presumed that the voyage is to be pursued in the most 
 direct and safe course, and the adventure conducted, in 
 general, in the most expeditious manner as far as is con- 
 sistent with safety ; and if there be any departure from 
 such course or mode of conducting the adventure, the 
 assured must justify such departure, by showing either 
 a usage in that respect, or a reasonable necessity. 
 
 In practice, a slight change, which does not increase 
 the risk, is not considered a deviation. The rule is this, 
 if the customary course of ships on that particular voy- 
 age, have been so long established and so well known, 
 that the underwriters are justified in calculating upon 
 that course, as the one the ship will, if possible, pursue, 
 the master must not deviate from it, unless compelled 
 to do so from necessity. If there be no such usual 
 
DEVIATION. 2iS 
 
 course, then the master is bound to proceed to the des. 
 tined terminus in the most natural, direct, safe and ad- 
 vantageous way. 
 
 It is perfectly well settled, that any deviation what-, 
 ever discharges the insurers from all further responsibil- 
 ity ; leaving them, however, liable for any loss occur- 
 ring before the deviation, and caused by a peril insured 
 against. Richardson v. Maine F. Sf M. Ins. Co., 6 
 Mass., 102. Nor are they discharged if the change of 
 risk be merely temporary, and when it ceases, all subse- 
 quent risks be precisely and certainly the same as they 
 would have been had no deviation taken place. In this 
 ease the effect of the deviation is to only suspend the re- 
 sponsibility of the insurers, and discharge them from 
 any liability for a loss, which occurs during the exist- 
 ence of the deviation. But it is obvious, that there are 
 very few changes of risks, that can be said to leave all 
 the subsequent perils in precisely the same condition as 
 if there had been no change ; and this exception, there- 
 fore, is seldom applicable. 2 Parsons, 278. Mr. Jus- 
 tice Sedgwick, in delivering the opinion of the court, in 
 Coffin V. Newburyport Mar. Ins. Co.; 9 Mass., 436,449, 
 said : " It is undoubtedly true that the shortness of the 
 time, or the distance of a deviation, makes no difference 
 as to its effect on the contract. Whether for one hour 
 or one month, or for one mile or one hundred miles, the 
 consequence is the same. If it be voluntary and with- 
 out necessity, it puts an end to the contract." But it is 
 obvious that in some cases there may be a temporary 
 deviation, which would exonerate the underwriters for 
 loss during such deviation, but not for a subsequent loss. 
 
246 PAETIAL LOSS. 
 
 Thjis, if a steamboat which makes regular trips between 
 two ports, be insured for one year, and if, after the trip 
 for the day is ended, she should tow a vessel or do any 
 other similar act, the underwriters would clearly be lia- 
 ble, if she were subsequently lost on a regular trip or 
 while lying in port, but not if she were lost while enga- 
 ged in towing. 
 
 The most frequent emergency for going oflF the usual 
 course of the voyage is to seek a port of necessity, to re- 
 pair damages, and to refit. When, in consequence of 
 disaster, the vessel cannot safely pursue the voyage, the 
 master is not only justified in quitting the course and 
 seeking the most convenient and suitable port for re- 
 pairs and supplies, but it is his duty to seek such port. 
 And if a vessel do not find repairs and supplies at the 
 first port of necessity she may proceed to a second. Hall 
 V. FranJdin Ins. Co., 9 Pick. 466. 
 
 The ship -may go out of its course, or delay, to avoid 
 disaster, no less than to refit after one has happened — as 
 to avoid capture. Oliver v. Mart/land Ins. Co. 3 Johns, 
 487 : Reade v. Commercial Ins. Co., 3 Johns, 352. Or 
 to join convoy, though not warranted or represented to 
 sail with convoy. Patrick v. Ludlow, 3 Johns' cases, 10. 
 Or to avoid ice. Graham, v. Commercial Ins. Co. 11 
 Johns, 352. Or to gain intelligence at an intermediate 
 port, in case of the master having been informed on the 
 voyage that trade at his port of destination had been put 
 under the same restrictions as if it were blockaded. Lee 
 V. Gray, 7 Mass. R. 349. Or leaving a port with the 
 vessel in an unseaworthy condition to avoid being sur- 
 
BEVIATION. 247 
 
 prised and seized there. Wiggin v. Amory, 13 Mass. 
 R, 118. 
 
 Going into a port which did not belong to the estab- 
 lished, or the natural and proper voyage, is certainly a 
 deviation ; and, in fact, a very common one. 
 
 If a master, however honestly, mistake the course, 
 when one is marked out by usage, it is a deviation. For 
 where a course is so prescribed and defined the as- 
 surers have a right to require, that the master shall know 
 it, and shall follow it. Phyn v. Royal Exch. Ass. Co. 
 7 T. R. 505 ; Brazier v. Clapp, 5 Mass. 1. 
 
 Delay or going out of the course to succor those who 
 are in distress, has been invariably held not to be a de- 
 viation. In regard to delay, by the schooner Magnolia, 
 to save the crew of the Boston, that had been run down, 
 Mr, Justice Story said : " Beyond all question, at least 
 in my opinion, it was the duty of the master of the Mag- 
 nolia to interrupt his voyage, for the purpose of taking 
 on board the crew of the Boston in their suffering state, 
 for the safety of their lives. It was a duty thrown on 
 him by the first principles of the natural law, the duty 
 to succor the distressed ; and it is enforced by the more 
 positive and imperative command of Christianity. The 
 stoppage for this purpose, could not, in my judgment, be 
 deemed, by any tribunal in Christendom, a deviation 
 from the voyage, so as to discharge any insurance, or to 
 render the master criminally or civilly liable for any 
 subsequent disasters to his vessel occasioned thereby." 
 The schooner Boston, 1 Sumner, 328. 
 
 But where the sole object is to save property, and the 
 delay is solely attributable to that purpose, or where part 
 
248 PAETIAL LOSS. 
 
 of the crew of the saving ship is put on board to navi- 
 gate the distressed ship, and thereby the crew of the 
 saving ship is materially diminished, it is admitted to 
 constitute a case of deviation. There is a distinction 
 between a deviation to^save life and a deviation to save 
 property. Bond v. ship Cora, 2 Wash. C. C. R., 80 : 
 Mason v ship Blaireau, 2 Cranch, 268 ; The schooner 
 Boston, 1 Sumner, 328 ; The ship Henry Ewhanh, 1 
 Sumner, 400 ; Warder y. Goods Sfc. 1 Peters Adm. K, 
 31. 
 
 While a vessel is detained at a port of necessity, it is 
 no deviation to take in additional cargo, if no additional 
 delay or risk be occasioned thereby. 3 Kent, 5th ed., 
 314 ; Chase v. Eagle Ins. Co., 5 Pick., 51 ; Hughes v. 
 Union Ins. Co., 3 Wheat;, 159 ; Paine v. Col Ins. Go. 
 2 Johns, 264 ; Bork v. Norton, 2 McLean R, 422. 
 
 Damage by Fire. 
 
 Fire is not a peril of the sea as between the shipper of 
 goods and the ship-owner, and therefore most bills 
 of lading contain an express exception against fire. The 
 same rule would apply to a case of insurance ; but as 
 fire is always specifically insured against, the underwri- 
 ters are liable. 
 
 When fire breaks, out in a ship it generally ends in 
 her destruction ; the great bulk of a vessel being com- 
 posed of combustible, and certain parts, of very inflam- 
 mable materials. When only partial in its damage, the 
 
GENERAL CLAUSE. 249 
 
 injury from burning is Partial Loss, and subject to the 
 same rules as the preceding. 
 
 Liability of underwriters for loss hy pirates, robbers 
 or thieves. 
 
 The usual insurance against these risks, renders the 
 underwriters liable for losses or damage arising from all 
 such acts as amoimt to piracy or robbery ; even, it is 
 said, if they be committed by the crew, provided due 
 care and diligence have been used to prevent them. 3 
 Kenfs Com. 303 ; 2 Parsons' Mar. Law, 236 ; 1 Phil 
 lips' Ins. §1106 ; 2 Arnould §817. 
 
 Liability of the underwriters under the general clause, 
 respecting other perils. 
 
 The general clause against all other risks and perils 
 covers other perils of a like kind to those specified. 
 
 After the enumeration of the particular risks, the po- 
 licy usually contains a general clause, by which the sub- 
 ject is insured against "all other perils, losses and mis- 
 fortunes which shall come to the hurt, detriment or 
 damage of the said goods or ship ^c. or any part 
 thereof" 
 
 The final undertaking of liability by the underwri- 
 ters, may seem so wide as to include every loss, damage 
 and contingency which can happen to the ship. And 
 
250 ' PAETIAL LOSS. 
 
 it may seem to exclude any defence which underwri- 
 ters might make to an action for loss or damage brought 
 against them. The definition of the underwriter's lia- 
 bility is, certainly, very comprehensive ; but we must 
 look to the usual and consistent interpretation which 
 has been made of the terms by courts of law and by 
 writers on the subject of insurance ; and also, which is 
 of great importance, to that general impression which 
 prevails in the minds of underwriters themselves when 
 they sign a policy ; because intention though not on eve- 
 ry occasion openly expressed, is to be looked to in con- 
 struing contracts which are for the most part couched 
 in the unvarying terms of a printed form. It may, then, 
 be unhesitatingly asserted that underwriters by their 
 policy have no intention of granting such a plenary in- 
 demnity as'it would amount to if they undertook to re- 
 store every ship at the end of the voyage insured to the 
 same condition in every respect in which she was when 
 she sailed. For then they would virtually have to re- 
 pair the ordinary ravages of time. They would have to 
 cure the inherent defects which might have existed in 
 the ship, and which from some cause exhibited them- 
 selves during the currency of the policy. The under- 
 writers do not mean to undertake this. The foundation 
 of claims on them is accident. The damage which the 
 vessel sustains must be something extra to the ordinary 
 events, to the ordinary waste and decay which all ship- 
 ping is subject to. The underwriters, it must be borne 
 in mind, are responsible for the extraordinary, and not 
 the ordinary, events of a voyage. 
 
 The general clause enlarges the scope and operations 
 
GENERAL CLAUSE. " 251 
 
 of the policy very little, because by a common principle 
 of construction (that general words are restrained by the 
 particular recital), it is always construed to mean other 
 perils of like nature or character with those enumerated, 
 which would therefore be included, generally at least, 
 in the other clauses. 
 
 But these words have been declared by courts to be 
 material and operative, and underwriters have been 
 held liable under them, but, as it seems, in most of these 
 cases they might have been held liable as well under 
 other clauses. In Gullen v. Butler, 5 M. & S., 461, the 
 vessel was lost by being fired into through mistake. — 
 Held, that the loss was covered by the general clause. 
 The following have been held to be covered by the gen- 
 eral clause. Damage done to a vessel in a graving=dock 
 for repairs, by being blown over by the wind. Phillips 
 V. Barber, 5 B. & Aid., 161 ; or by the explosion of the 
 boiler. PerrinY. Protection Ins. Co., 11 Ohio, 147; 
 or while the vessel is being hauled up on a marine rail- 
 way and is partly in the water and partly on the land. 
 Ellery v. New Eng. Ins. Co., 8 Pick. 14 ; injury sus- 
 tained by the accidental breaking and giving way of the 
 tackle and supports whereby the vessel was supported 
 in being moved from a dock where she had been hauled 
 up for repairs. Deveaux v. T Anson, 5 Bing. N. C. 519. 
 In Moses v. Sun Mutual Ins. Co., 1 Duer, 159, it was 
 held that a loss occasioned by the sale of a part of a car- 
 go of provisions to pay for necessary supplies at an inter- 
 mediate port and the necessary consumption of the 
 rest by the passengers and crew, owing to the want of a 
 proper supply on board the ship was not covered by this 
 
252 PARTIAL LOSS. 
 
 clause. Mr. Justice Ihier said : " The words of the gen- 
 eral clause, broad as they are, in this as in many analo- 
 gous cases, are limited in their application by the speci- 
 fication that immediately precedes them, aud therefore 
 have their due effect assigned to them, by allowing 
 them to comprehend and cover only such other cases of 
 marine damage as are of the like kind {ejusdem generis) 
 with those specifically enumera,ted, and are occasioned 
 by similar causes. 
 
 Particular Average or Partial Loss of Goods. 
 
 The English adjusters make a distinction between 
 Particular Average and Partial Loss ; thus, the term 
 " Particular Average" is used to signify the loss arising 
 from the article being deteriorated in value, in conse- 
 quence of its being sea-damaged, and sold at the proper 
 termination of the voyage ; and the term " Partial Loss," 
 to signify a loss arising on damaged goods which are 
 sold at some place short of their destination. They also 
 make this further difference between the two : — that in 
 a Particular Average it is essential that the loss should 
 reach the limit in the warranty, but in a Partial Loss, 
 the claim is paid although it do not amount to the five 
 per cent., or other limit as warranted. The two species 
 of loss are considered strictly as different in nature, and 
 they are not allowed to influence one another. 
 
 In the United States, no distinction is made in prac- 
 tice, between Particular Average and Partial Loss, but 
 the term " Partial Loss" is more frequently used ; and in 
 
PARTIAL loss OF GOODS. 253 
 
 this chapter we shall apply it to a depreciation on goods, 
 arising from the deterioration of the quality of the goods, 
 or from a reduction in quantity, or from both combined, 
 owing to sea-perils, and ascertained at their place of 
 destination. 
 
 Before entering upon a detailed examination of the 
 mode of adjustment of Partial Loss on goods, it will be 
 desirable to refer to the policy, and observe those clauses 
 and expressions which apply especially to merchandise. 
 
 The policy states the general intention of the insur- 
 ance to be " upon all kinds of lawful goods and merchan- 
 dise, laden or to be laden on board the ship " ; and 
 
 its period of endurance to be as follows : " beginning the 
 adventure upon the said goods and merchandise, from 
 and immediately following the loading thereof, on board 
 
 of the said vessel at aforesaid, and so shall continue 
 
 and endure until the said goods and merchandise shall 
 
 be safely landed at aforesaid." The statement of 
 
 adventures and perils, covered by the policy, is the same 
 on goods as on ship. But the " Memorandum" contains 
 special matter relating to goods, of very great import- 
 ance ; for it excludes some species of merchandise from 
 restitution in case of damage, and fixes the limit of de- 
 terioration, which must be reached in other species, in 
 order to constitute a claim on the underwriter. 
 
 The policy gives security to the goods from the mo- 
 ment they are loaded on board the ship, and the under, 
 writer's liability continues until they are safely landed. 
 
 The goods set forth in the memorandum are more sus- 
 ceptible of injury than others, some contain the causes 
 of deterioration or destruction within themselves, so that 
 
254 PARTIAL LOSS, 
 
 the smallest access of sea- water to them is able to set on 
 foot an action which may afterwards go on and damage 
 or waste them to a great extent. With some, ordinary- 
 causes, such as humidity of the atmosphere, the heat of 
 the ship's hold, or the dampness that is commonly found 
 in a ship, will produce deterioration, decomposition or 
 germination, without waiting for more definite acci- 
 dents. Thus the diflaculty of attributing damages of 
 this kind to their authentic source, and the still greater 
 difl3.culty of distinguishing between damage where two 
 causes have been at work, has made it expedient, both 
 in order to avoid disputes, and to obtain a moderate scale 
 of premiums, that either such goods should be excluded 
 altogether from Average claims or that a higher limita- 
 tion should be put upon them. Where, however, a lar- 
 ger indemnity is desired than the ordinary form of policy 
 gives, a special agreement is entered into with the un- 
 derwriters, making additional terms as to the payment 
 of loss, in consideration of paying an extra premium for 
 the additional risk. This agreement being made in wri- 
 ting will override the usual printed clause. 
 
 We will now endeavor to show, as consisely as possi- 
 ble, the recognised mode of adjusting a Particular Ave- 
 rage or Partial Loss on goods. 
 
 Those merchants not conversant with the adjustment 
 of marine losses, generally think that the best and sim- 
 plest plan to settle an Average loss on goods, is on the 
 principle of a salvage loss, — that is, to deduct the pro- 
 ceeds from the insured value. It can readily be shown 
 that this method of claiming for damage can rarely be 
 correct ; for by it, if goods come to a rising market, they 
 
PARTIAL LOSS OP GOODS. 255 
 
 may sell so well, so much higher than it was expect- 
 ed they would, that though they may have been really 
 heavily damaged, only a small claim, or none at all, 
 will result ; whilst, as the converse of this, goods ar- 
 riving at their destination to a depressed and falling 
 market, though really damaged ever so little, might es- 
 tablish a claim of 50 per cent, or upwards, on the poli- 
 cy. This would be involving underwriters in the fluctu- 
 ation of markets, a risk they never take upon them- 
 selves; the insurance they grant being against sea- 
 perils only. 
 
 It is now conceded that the only correct mode of ad- 
 justing a Partial Loss on goods where the ship has arrived 
 at, or the goods have been brought to, the port of destin- 
 ation, is by comparing the market price of the sound 
 merchandise with the market price of the damaged ; 
 and thus ascertaining the relative depreciation in value 
 sustained by the merchant from the sea-damage. 
 
 The following example in figures, will elucidate the 
 present practice : 
 
 Suppose 250 packages of goods were insured from Li- 
 verpool to New York, for $2,568, 
 
 On arrival at New York, 104 were found damaged by 
 sea- water, and sold at auction. 
 
 If these 104 packages had arrived sound, their value 
 
 would have been $1,080 00 
 
 Less discount for cash 37 80 
 
 Cash sound value - - - - $1,042 20 
 But, being damaged, they produce gross, cash 838 20 
 
 The difference % 204 00 
 
256 PARTIAL LOSS. 
 
 Is equal to 19 /otoV P^r cent 
 
 The insured value of 104 packages is $1,047 34 
 
 Which, at 19/oVoir per cent, would lose $205 01 
 
 Equal to TiVo" pcr cent. 
 
 To which add, auction charges, port- ) gg g^ 
 
 warden's fees, copy of protest &c. J 
 
 Claim on underwriters I 231 95 
 
 The loss as we have seen, is equal to TyWpei^ cent. 
 
 If the goods had been insured " free of Particular Av- 
 erage under 8 per cent.," there would be no claim, 
 although the auction charges, port-warden's fees, and 
 copy of protest — ^the usual expenses of ascertaining the 
 loss, added thereto, should cause the amount to exceed 
 the required per centage. The expenses are like costs of 
 suit, and fall upon the losing party. 
 
 Having, in the foregoing illustration, shown that the 
 gross value of the damaged goods, and that which the 
 same goods would have had if sound, form the basis of 
 the adjustment of the claim for Partial Loss, it will be 
 necessary to investigate the mode of ascertaining these 
 respective values. 
 
 It is customary to sell damaged goods by public auc- 
 tion ; and when that is done, the person who adjusts the 
 claim, after satisfying himself that the damage origina- 
 ted in fact in a peril insured against, will have nothing 
 to do in this respect, but to see that the sales are duly 
 certified. It occurs sometimes in small places, where it 
 is not customary to sell goods by auction, that the value 
 of the damaged article is estimated by sworn brokers or 
 merchants. This mode of proceeding may, in many in- 
 
PARTIAL LOSS. 257 
 
 stances, be more to the advantage of the underwriters 
 than an actual sale ; but the credit which can be given 
 to such valuations, will, of course, depend entirely upon 
 the respectability of the parties. 
 
 The value which damaged goods would have had in 
 a sound state, is not always easily ascertained. There 
 is no difficulty with respect to current articles at a place 
 where it is customary to sell them by auction. The pub- 
 lic sale of the undamaged part of goods of the same 
 quality will immediately show what the damaged would 
 have been worth. But with respect to goods which it 
 is customary to sell hy private contract, a public sale 
 would not show the real value, because such sale may 
 be supposed, in general, to be less advantageous than the 
 other. For this reason, as also because the assured can- 
 not be obliged to sell that part of his goods for which 
 there is no claim, merely to ascertain the value of the 
 damaged, the underwriters have no right to insist upon 
 a sale of the undamaged part. Under such circumstan- 
 ces, the only way is, to ascertain the value of the sound 
 goods by the estimate of sworn brokers or merchants, 
 and it is to be observed, that neither the highest price at 
 which such goods might have sold in small quantities, 
 nor the lowest price at a forced sale, ought to be taken, 
 but a medium between the two, or, if possible, the price 
 at which the damaged can be replaced at the time by 
 sound. 
 
 Having stated the mode by which the respective val- 
 ues of sound and damaged goods are ascertained, the 
 next point to be looked at, is, whether gross or net pro- 
 ceeds are to be taken. Our illustration of an adjust- 
 17 
 
258 PABJIAL LOSS. 
 
 ment of Partial Loss on goods, shows, the adjustment is 
 made on a comparison between the g-ross proceeds of the 
 sound and damaged goods. The reason why the net 
 proceeds are not taken against a net sound value in 
 fixing the amount of damage, is this, that under- 
 writers are not liable for any loss which may be the 
 consequence of the duties or charges to be paid after 
 the arrival of the commodity at the place of destination. 
 And it has been held by the courts, and adopted in prac- 
 tice, that the calculation is to be made on the difference 
 between the respective gross proceeds of the same goods 
 when sound and when damaged, and not on the net pro- 
 ceeds. And a further reason for adopting this rule, is, 
 that by taking the net proceeds as the basis, instead of 
 the gross, it will happen that when equal charges are to 
 be paid on the sound and damaged article, the underwri- 
 ter will be affected by the" fluctuation of the market, 
 which ought not to be. 
 
 The desideratum is, — to obtain a uniform measure, or 
 standard of adjustment, which can be made generally 
 useful ; the result of which will be the same, whe- 
 ther the markets rise or fall, or whether the charges be 
 increased or diminished ; and which, while it affords 
 that indemnity to the assured to which he is fully enti- 
 tled, does not subject the insurer to those claims with 
 which, agreeably to his contract, he has no concern. 
 
 The loss of duties ought certainly to be made good to 
 the merchant by the revenue ; and this principle is ac- 
 knowledged to be correct, because on his application and 
 after some delay, a return is made to him; but this return, 
 though it should be in proportion to the degree of deteri- 
 
PARTIAL LOSS OF GOODS. 259 
 
 oration, generally falls short of his loss. Though the re- 
 turn of duty makes part of the merchant's indemnity, 
 it being part of his loss in consequence of his having 
 paid the full duty on the damaged goods, it has been 
 contended because the gross proceeds include the duty, 
 that the underwriter is entitled to this sum, or that it 
 should be considered in the adjustment of the claim ; — 
 otherwise, it is said, the merchant would be a gainer by 
 the goods being damaged. But by an adjustment on a 
 comparison of the gross proceeds of sale, . and by that 
 alone, the underwriter has no concern with the duties. 
 The return of the duty ought therefore to be made good 
 to the merchant ; he having paid the duty and borne the 
 loss. On the assumption that the merchant was fully 
 indemnified against all loss, by the underwriter, from the 
 arrival of the goods in a damaged state, it is admitted 
 that he would be a gainer by the sum in question. If 
 an adjustment had been made on the basis of the net 
 proceeds, the return duty ought to be paid over to the 
 underwriter. 
 
 In the adjustment of claims for loss by damage, if 
 the goods have been wet, which would increase their 
 weight, the underwriters do not pay for this increase of 
 weight. They are liable only for the invoice weight. 
 The account-sales as rendered with the documents, gives 
 the proceeds of the damaged goods, and if the weight be 
 stated, it is generally the actual weight at the time of 
 sale, which frequently far exceeds the invoice weight. 
 The adjustment, therefore, should be made on the basis 
 of the invoice weight. 
 
 It is highly desirable, in justice to the underwriters, 
 
260 PAE.TIAI, LOSS. 
 
 that the damaged goods alone should be sold, the sound 
 portion being selected from them. It sometimes hap- 
 pens that the contents of a package are a set, or assort- 
 ment, and that the abstraction of part from it leaves the 
 remainder unsaleable, or saleable only at a reduced 
 price, although it is not sea-damaged, and may there- 
 fore be said to be sound. Whilst therefore, there is great 
 reason for endeavoring to confine the sale of d amaged 
 goods to the actual number of damaged pieces, the na- 
 ture of things will not always permit this. The rule 
 which should be followed is this: — Whenever the dam- 
 aged pieces can be selected from the sound, without 
 breaking up an assortment or leaving an unavoidable 
 loss on the sound remainder, that course should be tak- 
 en. But if it cannot be done without loss on the sound 
 balance, then it is the assortment or the package which 
 is the unity insured, and of which the underwriters gua- 
 rantee the safety. 
 
 It is not usual where sea-damage exists in part of a 
 cargo, the whole of which had been previously sold to 
 arrive, to ascertain the agreed price for sound value, and 
 the actual sale of the damaged goods after the ship's ar- 
 rival, for their value in their depreciated condition ; a 
 valuation must be given of their price on the day on 
 which the damaged goods were sold. 
 
 When the relative difference between sound and dam- 
 aged goods is ascertained, it is next to be applied to the 
 sum insured. It is not the actual amount of difference 
 between sound and damaged, that the underwriters 
 are necessarily liable for, but the proportion or ratio. 
 Thus, suppose $80 be insured on a package of goods, the 
 
PARTIAL LOSS OF GOODS. 261 
 
 sound value of which proves to he $100, and which sells 
 in its damaged condition for $80, the actual difference 
 is $20, or 20 per cent. loss. But the underwriters have 
 not received a premium on $100, but on $80 only, the 
 sum at which the package was mutually agreed to be 
 valued at in the policy. They cannot, therefore, be made 
 to pay the whole $20, but they will pay 20 per cent, on 
 the amount they have insured, viz : on $80, which is 
 equal to $16. And, conversely, if the goods be insured 
 for $80, the sound market price $60, their sale $40 ; the 
 actual difference is $20, or BS\ per cent. The under- 
 writers having insured more than the actual value, are 
 liable for the ascertained proportion of damage, and must 
 pay 33^ per cent., on $80, or a sum of $26 66|-. But it 
 is not often that the insured value exceeds the sound val- 
 ue. A shipper usually insures the invoice cost of the 
 goods, to which are added all charges until the goods be 
 on board the ship, the premium of insurance, also a rea- 
 sonable percentage of expected profit, say 10 per cent. 
 
 The difference between a valued and an open policy, 
 is this, in the former the insurable value is fixed, by the 
 amount as stated in the policy ; in the latter the insur- 
 able value is not fixed by the policy, but is left open, to 
 be ascertained by the assured, in case a loss shall hap- 
 pen. 
 
 The rule usually adopted in practice, for ascertaining 
 this value, is to take the invoice price as prima facie 
 proof of the real insurable value, to which is added the 
 shipping charges and premium of insurance, with the 
 per cent, of advance as agreed in the policy, if any agree- 
 ment be made. 
 
262 PARTIAL LOSS, 
 
 The mode of adjustment, with this exception, is the 
 same whether the policy be valued or open. 
 
 It has, however, been a matter of doubt with the 
 courts and text writers, whether in the adjustment of a 
 loss on cargo under an open policy, the value of the 
 goods should be taken to be their prime cost, their invoice 
 price, or their actual market value at the commence- 
 ment of the risk. The difficulties in the way of adopt- 
 ing the market value as the insured value in an open 
 policy, are in bringing forward proof of such value. 
 
 Mr. Justice Washington, in Carson v. Marine Ins. 
 Co., ably contended, that the market price of the goods 
 at the commencement of the risk, is the true basis of cal- 
 culation, and that the invoice price furnishes no rule of 
 indemnity in any case where it exceeds, or is less than 
 this market value. This was an agreed case, in which 
 the only question submitted to the court was, whether, 
 in case of a total loss of goods insured in an open policy, 
 the invoice price, agreeing with the first cost, shall be 
 taken as fixing the value ; or, the current market price 
 of similar goods at the time and place of shipping them ; 
 the latter being about 25 per cent, lower than the for- 
 mer. Washington, J. said : "it being admitted that 
 there is no direct authority or custom in relation .to a 
 case precisely like the present, it must be decided upon 
 an attentive consideration of the nature of the contract 
 of insurance. "What is it ? An agreement by the insur- 
 er, in consideration of a certain reward, to stand in the 
 shoes of the insured, and to indemnify him for any loss 
 which may happen to the thing insured, from certain 
 perils enumerated in the policy. This is efieoted by pay- 
 
PARTIAL LOSS OF GOODS. 263 
 
 ing him, in money, the vahie of the property at risk, 
 with the expenses incuiTed in putting it on board, du- 
 ties &o. Suppose the property be destroyed within an 
 hour after the risk has commenced, (and the time makes 
 no difference in the principle), what does the owner lose? 
 Precisely as much as it was worth, or would have com- 
 manded in market at the time and place it was ship- 
 ped, including expenses, and no more. If the property 
 cost him less than it was worth .when shipped, he 
 loses as well the first cost as the increased value, for 
 which he is entitled to claim an indemnity from the in- 
 surer. If it cost him more, he loses the difference be- 
 tween the first cost and the diminished value when the 
 property was shipped ; but for this difference, he can 
 have no claim for indemnity under the contract, because 
 the loss did not result from amj of the perils against 
 which an indemnity was stipulated, but from a7i unprof- 
 itable speculation, anterior to, and unconnected with, the 
 contract. Those who have contended for the value at 
 the first port of discharge, have had much more reason 
 on their side than the law of insurance, as understood in 
 most countries, has sanctioned ; for they have fairly ar- 
 gued, that the owner has lost, by a peril insured against, 
 all that would have been gained by a successful termi- 
 nation of the voyage beyond the value of the property at 
 the port where it was shipped. But this test of value 
 is rejected, and perhaps rightly so, for the reasons as- 
 signed in the books. But it is impossible that the first 
 cost can ever furnish a just rule of indemnity, where it 
 exceeds or falls short of the actual value of the property 
 when it is put at risk. 
 
264 PAUTIAI. LOSS. 
 
 " The invoice price is liable to all the objections which 
 exist against the prime cost — and to an additional one, 
 which, in the opinion of the court cannot be surmount- 
 ed. It furnishes no rule of indemnity, in any case where 
 it exceeds, or is less than, the market value of the arti- 
 cle ; if the former, the insured is more than indemnified, 
 by receiving more than it was worth; if the latter, 
 which it is presumed will seldom, if ever, happen, his in- 
 demnity would be in part only. But the strong ground 
 of objection to this rule for appreciating the value of the 
 property at risk, is, that it substantially destroys all dis- 
 tinction between valued and open policies, and this too 
 in the face of one of the best established rules of evi- 
 dence. It makes a private document created by one 
 party to the contract, evidence against the other, as to a 
 fact which is essential for the former to prove in the or- 
 dinary way. In the case of a valued policy, the insured 
 is relieved from the necessity of proving the amount of 
 his loss, because both parties have agreed that the pro- 
 perty at risk was worth so much. But, to bind the insur- 
 er by the arbitrary value fixed in the invoice, is to sub- 
 ject him to ex parte evidence, furnished by his opponent 
 in the cause, without his agreement, and even without 
 his knowledge of its contents when the contract was en- 
 tered into. And as it rarely happens, if ever, that an 
 invoice does not accompany the cargo, it would follow 
 that all policies would in fact be valued ; with this dif- 
 ference only, that what has hitherto been understood by 
 valued policies, means nothing, more than such as are 
 valued by both parties, whereas open policies would be 
 valued by one of the parties only. 
 
PABTIAI. LOSS OF GOODS. 265 
 
 " If neither the prime cost, nor the invoice price, can 
 furnish a correct rule for estimating the value of the as- 
 sured's indemnity, will both together answer the pur- 
 pose ? If they differ, neither can be admitted, if the 
 preceding course of reasoning be right. If they agree, 
 ^then the contention for a choice is merely a dispute a- 
 bout terms. But if either or both vary from the real val- 
 ue of the property insured, and consequently furnish no 
 just rule of indemnity, then it is impossible that their 
 agreement can furnish any. 
 
 " Marshall has strangely embarrassed this subject, by 
 using as synonymous, terms which are substantially dif- 
 ferent. ' In England,' he observes, * the loss is estimat- 
 ed according to the prime cost — that is, the invoice price.' 
 If they should happen to be the same, or must always 
 be so, it was unnecessary to multiply words, in order to 
 inform us that either might be taken. If they differ, 
 which they frequently may do, then the two expressions 
 cannot mean the same thing ; and he has omitted to 
 state, in such a case, which is to govern. He is much 
 more intelligible, when he states, that ' the first price of 
 a thing does not always afford a sure criterion to ascer- 
 tain its true value, because it might have been bought 
 very dear, or very cheap. The circumstances of time and 
 place, cause a continual variation in the price of things.' 
 Roccus is express upon the subject: 'Where the con- 
 tract,' he observes, ' is simply to pay the value of the 
 goods in case of loss, the time of entering into the obli- 
 gation is to be considered ; and according to the then ex- 
 isting value, should the estimate be made. Thus,' he 
 adds, ' the damage sustained by the assured in case of 
 
266 PARTIAL loss. 
 
 loss, is not considered a source of'pro^i' The French 
 rule seems to be the same ; though in a valued policy, 
 the insured is allowed to add the increased value be- 
 tween the prime cost and the market value. As to the 
 rule of ascertaining the value of a ship, it is agreed on 
 all hands, that the sum she was worlh at the time of 
 her departure, including certain expenses, is to govern ; 
 and the court can perceive no reason for establishing this 
 rule, which does not apply to the case of goods. Upon 
 the whole, it is the decided opinion of the court, that 
 judgment must be rendered according to the market 
 price of the property insured, at the time and place of ex- 
 portation." 
 
 In Le Roy v. tfnited Ins. Co., 7 Johns, 343, hides, 
 the prime cost of which was ten cents per pound, were 
 invoiced at twelve cents per pound, the value at the 
 time of shipment and effecting insurance. Held, that in 
 ascertaining the amount of loss, the hides should be 
 reckoned at ten cents per pound. The court, however, 
 disclaimed any intention of laying down a general rule. 
 Thompson, J. admitted " the prime cost of the goods 
 might not in many cases, be a jast rule of computation, 
 as where they were not purchased with a view to an 
 immediate exportation, and had remained on hand for a 
 considerable length of time. Bat in matters of com- 
 merce, the plainest and simplest rules are always the 
 best. And I should incline to think, that generally 
 speaking, the prime cost would be the best rule by which 
 to test the value of the subject. The prime cost is com- 
 monly the market price of the article." 
 
 In Coffinr. Newburyport Mar. Ins. Co., 9 Mass., 
 
PAETIAli XOSS OF GOODS. 267 
 
 436, goods invoiced at their real value at the time and 
 place of shipment, which was greater than their prime 
 cost, were reckoned at the invoice price. See also, 
 Snell V. Delaware Ins. Co., 4 Dall., 430. 
 
 The difficulties, as we have said, in the way of 
 adopting the market value as the insured value in an 
 open policy, are in hringing forward proof of such value. 
 And for this reason, it is usual, in practice, to take the 
 invoice price as prima facie proof of the real insurable 
 value. It cannot, however, be regarded as conclusive 
 proof Nor should the assured be prevented from 
 invoicing the goods at their real, that is, market value, 
 where they have risen in price since a purchase. 
 
 Having stated how a Partial Loss or Particular Ave- 
 rage on cargo is usually adjusted, we will now state 
 some of the charges which do or do not give a claim as 
 for a Partial Loss against the underwriter on goods. 
 
 The underwriter on goods is not responsible, under 
 the common form of policy, for the loss the merchant 
 may incur by having to pay the same freight on sea- 
 damaged goods arriving in bulk at their port of desti- 
 nation, as he would have had to pay had they arrived 
 sound. Caze v. Baltimore Ins. Co., 7 Cranch., 358 ; 
 Columbian Ins. Co., v. Catlett, 12 Wheaton, 383; 
 Armroyd v. Union Ins. Co., 3 Binney, 437. 
 
 When goods are necessarily sold by the master, in a 
 port of distress, to defray the expense of repairing the 
 ship, the loss sustained from the sale by the shipper of 
 the goods may be recovered by him against the owner 
 of the ship, but cannot be claimed as an Average loss 
 from the underwriter on goods. Giles v. Eagle Ins. 
 
268 PABTIAL XOSS. 
 
 Co., 2 Metcalf, 140 ; Moses v. Sun Mutual Ins. Co., 1 
 Duer, 159. But where the repairs are a subject of 
 Contribution in General Average, the underwriters on 
 cargo must contribute their proportion of the necessary 
 sacrifice to raise the funds for the purpose of defraying 
 the expense of the repairs, but they are not directly 
 liable to the shipper for such loss. 
 
 Where the vessel is wrecked and the cargo is sent 
 forward in another vessel to the port of destination, the 
 underwriters are liable for a loss while the goods are in 
 such substituted ship. Winter v. Delaware Mutual 
 Ins. Co., 30 Penn. State, 834.- So if it be necessary on 
 account of the loss of the ship to carry the cargo over 
 land to tranship it, the underwriters are liable while 
 this is being done. Bryant v. Commonwealth Ins. 
 Co., 13 Pick, 543, 555. 
 
 Underwriters are liable for no subject matter of insur- 
 ance, which is destroyed by reason of its own inherent 
 defects or tendencies. But this rule does not apply to 
 tendencies which are called into activity only by a peril 
 insured against. Boyd v. Dubois, 3 Camp., 133. 
 
 If goods be damaged by actual contact with sea- 
 water, the underwriters are certainly liable. Most of 
 the policies now in use contain a clause exempting the 
 underwriters from liability for damage or injury to 
 goods by dampness, rust, change of flavor, or by being 
 spotted, discolored or mouldy, unless the same shall be 
 caused by actual contact of sea- water with the articles 
 so damaged. Where the policy contains this clause, 
 the burden is on the assured to show that the damage 
 was caused by actual contact with sea-water. 
 
PARTIAL LOSS OF GOODS. 269 
 
 If different articles be insured in the same policy 
 under one valuation, free from Average under a certain 
 per cent., it has heen held there must be a loss equal to 
 the per centage on the whole valuation ; but if the 
 articles be separately valued, a loss on one equal to the 
 specified per centage on its value, renders the under- 
 writers liable. Ocean Ins. Co., v. Carrington, 3 
 Comm., 357. 
 
 A similar question arises where a cargo consisting of 
 bales, packages or parcels of the same kind of goods, is 
 insured against total loss only, or free from Average 
 under a certain per cent. In England the law seems 
 to be that if the packages be separately valued, the 
 assured can recover for all that are totally lost, but not 
 otherwise. 36 Bng., L. & Bq., 198. Some adjusters 
 contend that the rule is the same in this country, but 
 it has been decided otherwise in Pennsylvania. New- 
 lin V. Insurance Co., 20 Penn. State, 312. In this case 
 insurance was effected on 104 bales of cotton, valued at 
 $50 per bale. There was a clause in the policy 
 exempting the underwriters from Partial loss under five 
 per cent. Four bales were lost by the perils of the sea, 
 and the assured claimed to recover on the ground that 
 each bale being separately valued, the contract was to 
 be considered as an insurance on each bale, but the 
 court held that the underwriters were not liable. In 
 Kettell V. Alliance Ins. Co., Sup. Jud. Ct., Mass. T. 
 1858, Shaw, C. J., speaking of the rule which allows a 
 recovery for a total loss of part, said ; " It is admissible 
 only, we think, when goods of the same kind are sepa- 
 rately invoiced and insured, or when insurance is made 
 
270 PARTIAL LOSS. 
 
 specifically upon bales, boxes or other packages, valued 
 and insured by the bale or package, or number of pack- 
 ages in parcels less than the whole." Whatever the law- 
 may be where each parcel is separately valued, it is 
 certain in this country, that where this is not the case, 
 there can be no total loss of part Biayo v Chesapeake 
 Ins. Co., 7 Cranch., 415 ; Moreau v. United States Ins. 
 Co., 1 Wheat, 219 ; Wadsworth v. Pacific Ins. Co., 
 4 Wend., 33. 
 
 Partial loss affreight. 
 
 A Partial Loss on freight is occasioned by the loss of 
 the ship after a part of the voyage is performed, which 
 makes it necessary to hire another ship to carry on the 
 cargo to the port of destination, in order to earn freight ; 
 or a loss of a part of the cargo, whereby the ship is pre- 
 vented from earning a part of her freight ; and it does 
 not appear to make any difference in this respect, that 
 the loss is on an article of a perishable nature, and of 
 more than ordinary liability to damage. As in case of 
 tobacco being damaged and destroyed by sea-water. 
 Coolidge V. Gloucester Mar. Ins. Co., 15 Mass. R. 341 ; 
 McGaw V. Ocean Ins. Co., 23 Pick,, 405. 
 
CHAPTER IV. 
 
 TOTAL LOSS AND ABANDONMENT. 
 
 General doctrine of Total Loss and Abandonment. 
 
 These topics are usually considered together, for the 
 reason that, in practice, much the larger part of losses 
 which are total, become so by abandonment. 
 
 As insurance is for the purpose of protecting the 
 merchant from severe and heavy losses arising from 
 shipwreck or disaster, so abandonment is intended to 
 restore to the owner, without delay, his capital, and 
 thereby enable him to engage in some new mercantile 
 adventure. Long interruption to a voyage, and uncer- 
 tain hopes of recovery, would often be ruinous to the 
 business of the merchant ; and therefore, when there is 
 a forcible dispossession or ouster of the owner of the ship, 
 as in cases of capture ; when there is a moral restraint 
 or detention, which deprives the owner of the free use 
 of the ship, as in case of embargoes, blockades and 
 arrest by sovereign authority ; when there is a present 
 total loss of the physical possession and use of the ship, 
 as in case of submersion ; when there is a total loss of 
 
272 TOTAL LOSS AHD ABANDONMENT, 
 
 the ship for the voyage, as in the ease of shipwreck, so 
 that the ship cannot be repaired for the voyage in the 
 port where the disaster happens ; and, when the injury 
 is so extensive, that by reason of it the ship is useless ; 
 or, if the cargo be so damaged as to be of little or no 
 value, the insured may abandon the subject to the . 
 underwriter, and call upon him to pay a total loss. 
 
 When an abandonment has been made by the 
 owners to the underwriters, the latter stand in the place 
 of .the owners, and take the subject to themselves, with 
 all the chances of recovery and indemnity. 
 
 An abandonment can be accepted or refused by the 
 underwriter. It is generally refused by him, because 
 admission of the abandonment places him in a some- 
 what different position with the assured, and he gene- 
 rally wishes to avoid any accession of responsibility, 
 particularly as abandonments are frequently made 
 when facts relating to the loss of the ship and goods are 
 very imperfectly known. But, after all, the merits of 
 the case are decisive for or against an underwriter. If 
 he accept abandonment, and it afterwards turn out that 
 the facts upon which it was made were untrue or did 
 not exist, the abandonment is nothing ; does not bind in 
 any way ; has no effect. On the other hand, although 
 the underwriter refuse acceptance of abandonment, 
 yet if there were valid grounds for ceding the property 
 to him, the notice given him will be sufficient ; and in 
 many cases where the loss is such that no question can 
 arise upon it, the notice itself is unnecessary, and the 
 loss can be claimed without it. 
 
 It is a universal rule, that all rights, claims and 
 
GEN ERAL DOCTRINE OP TOTAL LOSS AND ABANDONMENT. 273 
 
 interests, which are indissolubly connected with the 
 property insured, pass to the insurers by an abandon- 
 ment of the property, so far as the same belong to the 
 assured, and to the extent of the interest covered by 
 the policy. As a right to Contribution for General 
 Average ; all claims for negligence or any misconduct 
 causing injury to the property, as for collision, or for 
 injury to goods ; or for any indemnity from a foreign 
 government. But if the underwriters refuse to accept 
 an abandonment, and the loss be settled by a compro- 
 mise, the right of indemnity does not pass, so, if no 
 abandonment be made, but the loss be settled as a Par- 
 tial Loss, the underwriters have no claim on the assured 
 for any subsecLuent benefit derived from the adventure. 
 So too, a mortgagee transfers to the underwriters by 
 abandonment, so much of the debt due to him as is 
 paid by the underwriters. An action at law to enforce 
 a right which the insurer has acquired by subrogation, 
 must, generally, be in the name of the party, whose 
 place the insurer has taken. In equity, however, the 
 insurer may sue in his own name. Garrison v. Mem- 
 phis Ins. Co., 19 Howard, 312. 
 
 The salvage, of course, belongs io the insurers ; but if 
 it be encumbered by any charge or lien by a peril 
 against which they have insured, they are of course 
 answerable for this, and bear the loss. But if the 
 salvage have burdens, charges or liens upon it, springing 
 from perils which are not insured against, this must be 
 the loss of the assured, who must discharge these bur- 
 dens, or pay or allow to the underwriters the sum they 
 pay, or are bound to pay, by reason of these burdens. 
 18 
 
274 TOTAL LOSS AND ABANDONMENT. 
 
 They take the ship, by this abandonment, free from any 
 lien for seamen's wages earned before the time from 
 which the abandonment takes effect, but are, of course, 
 liable for wages earned afterwards, by labor on board 
 the ship, because this is a service rendered to them, 
 and in and about the property. Hammond v. Essex 
 F. ^ M. Ins. Co., 4 Mason, 196. 2d Parsons, 418. 
 
 The insurers take the salvage property subject to the 
 charges and expenses incurred in saving it ; and it seems 
 that this may exceed the value of the salvage and still 
 the underwriters be bound, provided the expenses and 
 charges were incurred by the assured while laboring 
 in good faith and with reasonable discretion, for the 
 recovery and security of the salvage and the consequent 
 benefit of the insurers; for this they are authorized, if 
 not required, to do, by the usual policies of insurance, 
 and would probably be, by the principles and policy of 
 the law of insurance, even if the policies contained no 
 such provisions. 2d Parsons, 419 : Barker v. Phcenix 
 Ins. Co., 8 Johns, 307 ; Jumel v. Mari?ie Ins. Co., 7 
 Johns, 412 ; Laivrence v. Van Home, 1 Caines, 276 ; 
 Potter V. Providence Wash. Ins. Co., 4 Mason, 298. 
 
 When there is a total destruction of the thing, 
 abandonment is unnecessary. If the loss be so absolute 
 as to be beyond all question, abandonment has little real 
 effect, and the want of it little prejudice. It is in 
 doubtful and questionable cases, where it is of impor- 
 tance. 
 
 No especial form of abandonment is prescribed by 
 law or usage. It is the spirit of the act, rather than the 
 letter, that is to be considered. Notice of abandonment, 
 
GENERAL DOCTRINE OF TOTAL LOSS AND ABANDONMENT. 275 
 
 however, is usually given in writing, but even this does 
 not seem to he absolutely necessary. It is customary 
 for the assured to write a letter to his underwriters 
 giving them notice that he abandons the interest insured, 
 to them ; and he frequently gives them what informa- 
 tion he possesses as to the cause and occasion of aban- 
 donment. The more distinct and direct the manner of 
 giving notice the better ; but sometimes an indirect 
 communication, if it be proved afterwards that the 
 underwriters understood it and acted on it, will be 
 sufficient. But generally the notice should state sub- 
 stantially the grounds on which the abandonment is 
 made ; and the cause stated must be a peril within the 
 policy. 
 
 It is important that the notice should be given to the 
 underwriters in proper time ; because it is only just 
 that, if 1 throw up my property and leave it on their 
 hands to dispose of as they think proper, it should be 
 done when there is yet an opportunity of their acting 
 on my abandonment, and of taking measures to secure 
 and dispose of the property which has in this manner 
 become their own. Pierce v. Ocean Ins. Co., 18 Pick., 
 93; Marshall Y. Delaware Ins. Co., 4 Cranch., 202 
 2 Wash. C. C, 54; 1 Caines Cas., 21; 1 Caines Cas., 
 28 ; 3 Caines, 155 ; 9 John, 26 ; 4 Cowden, 222 ; 3 
 Wendell, 658 ; 1 Mason, 241 ; 3 Mason, 429 ; 5 
 Cowen, 63 ; 4 Dallas, 446 ; 3 Mass., 238 ; 6 Mass., 
 479; 3 Mason, 27 ; 5 Gill ^ John, 159 ; 12 Peters, 378. 
 
 If the facts be such as to justify an abandonment at 
 the time it was made, the subsequent recovery of the 
 property, before the assured has taken legal measures 
 
276 TOTAL LOSS AND ABANDONMENT. 
 
 for enforcing his claim, does not divest him of his 
 right to insist on his abandonment, and recover as for a 
 total loss. An abandonment once rightfully made is 
 conclusive, and the rights following from it are not 
 divested by any subsequent events which may change 
 the situation of the property. Peele v. Merchants^ Ins. 
 Co , 3 Mason's Rep., 27 ; Marshall v. Delaware Ins. 
 Co., 4 Cranch., 202. The rule is the same as in the 
 United States, in this respect, in France, Germany and 
 other parts of the Continent. See Emerigon, chap, 
 xvii, sec. 4, vol. ii., p. 222, ed. 1827; Boulay-Paty, 
 ibid, 223 ; Code de Commerce, art. 385 ; Pardessus 
 Cours de Droit, Com., vol. iii., part iv., tit. v., chs. 8 
 and 4, p. 423, ed. 1841. In England, the law is differ- 
 ent. There, the established rule is, that, even although 
 the facts were such as to justify the assured in giving 
 notice of abandonment at the time he did so, yet he 
 cannot insist on such notice, and recover as for a total 
 loss, if the thing insured be restored, before he com- 
 mences his action, in such a state that he may reason- 
 ably be expected to take possession of it. Bainhridge 
 V. Neilson, 10 East., 329 ; Patterson v. Ritchie, 4 M, 
 & Selw., 393 ; Brotherton v. Barber, 5 M. & Sel., 418 ; 
 Naijlor V. Taylor, 9 B & Cr., 725. 
 
 Lord Mansfield, in Goss v. Withers, 2 Burr, 683,. 
 thus states the utility of an abandonment : " To all, 
 indeed, who are engaged in commercial speculations, 
 it is of the last importance to have a ready and quick 
 command over their capital, so as to be enabled at once 
 to withdraw it from any adventure that appears likely 
 to be losing, and invest it in another that promises to 
 
CONSTRtrCTIVE TOTAL LOSS, 277 
 
 he lucrative. Suppose, then, a merchant or ship-owner 
 to have received information of some marine casualty, 
 such as capture or stranding, which renders the total 
 loss of his property highly probahle, but not absolutely 
 certain — what is he to do under such circumstances ? 
 To have his funds locked up during the whole time he 
 is waiting the ultimate issue of the accident would be 
 almost as disastrous as the absolute total loss of his 
 property ; in fact, more so, for in the latter case he 
 would have an immediate claim on the underwriter for 
 the amount of his subscription. The claim, therefore, 
 which he would ha^^e a right to make in case of an 
 absolute total loss, the law allows him to make in these 
 cases of probable and highly imminent total loss ; it 
 allows him to release himself from his embarrassment, 
 and deal with the underwriters on the same terms as 
 though a total loss had actually occurred, on condition 
 of his abandoning to them all his interest in the subject 
 insured, and all his rights of recovering it." 
 
 Definition and general rules of Constructive Total 
 Loss. 
 
 A loss may be either total or constructively total. A 
 total loss is, as the words imply, an entire destruction of 
 the subject insured, whether it be the ship, or the goods 
 laden on board. 
 
 As we have already seen, a constructive total loss in 
 insurance law is that which entitles the assured to 
 claim the whole amount of insurance, on giving due 
 
278 TOTAL LOSS AND ABANDONMENT. 
 
 notice of abandonment ; and that is, generally speaking, 
 a case of constructive total loss where the thing insured 
 has been reduced to such a state, or placed in such a 
 position by the perils insured against, as to make its 
 total destruction or annihilation, though not inevitable, 
 yet highly imminent, or its ultimate arrival under 
 the terms of the policy, though not utterly hopeless, yet 
 exceedingly doubtful. In such cases, if the assured 
 wish to recover for a total loss, he must, as a necessary 
 preliminary, give due notice of abandonment; that is, 
 an explicit intimation to the underwriters that he offers 
 to cede or abandon to them, unconditionally, his whole 
 interest in the thing insured, or the remains of it, as far 
 as it is covered by the policy ; and this notice he must 
 give in reasonable time. 
 
 The assured, before giving notice of abandonment, is 
 not bound to wait for full and accurate information, but 
 may give it at once upon a mere report of capture, 
 detention, innavigability, or any other casualty, which, 
 supposing the intelligence to be well founded, would be 
 a clear case of constructive total loss. But, in order to 
 make a notice of abandonment valid, not only must the 
 information on which it is founded prove true, but it 
 must also be justified by the state of facts existing at 
 the time when it is actually given. 
 
 The law in England, and also in France, is, in this 
 respect, the same as our own. 10 East, 341. 
 
 The facts as they exist at the time a notice of aban- 
 donment is given, must be such as to justify it ; and if 
 they be so, the rule is, that an abandonment once 
 rightfully made is binding and conclusive between the 
 
CONSTRtJCTIVB TOTAL LOSS ON SHIP. 279 
 
 parties, and the rights flowing from it become vested 
 rights, and are not divested by any subsequent events. 
 Peele v. Merchants^ Ins, Co., 3 Mason, 27 ; Marshall 
 V. Delaware Ins. Co., 4 Cranoh., 202 ; 8 Mass., 502, 
 536 ; 9 Pick., 484. 
 
 Constructive Total Loss on ship. 
 
 The expenses of restoring what has been destroyed 
 and of repairing what has been injured about a ship, 
 are the most common form of a ship's constructive 
 death. The difficulties of carrying on repairs, or of 
 procuring materials for those repairs ; the inability to 
 raise means for paying the necessary disbursements 
 arising in a foreign port ; or the exorbitant rate of inte- 
 rest demanded for money required for such disburse- 
 ments, are the usual proximate causes which lead to 
 the abandonment of a ship to her insurers. 
 
 It is a fixed rule, that if the ship be injured by the 
 perils insured against so as to require repairs to the 
 extent of more than half her value, {nothing in the 
 policy to the contrary), the assured is entitled to aban- 
 don as for a total loss. Deblois v. Ocean Ins. Co., 16 
 Pick., 803, 309, 310. In England, the assured can 
 abandon, only when the cost of repairs exceeds the full 
 repaired value. 
 
 The policies at present in use in New York and New 
 England, however, require that the ship must receive 
 injury to the amount of three-quarters of her insured 
 value, to enable the owner to abandon her to the under- 
 
280 TOTAL LOSS AND ABANDONMENT. 
 
 writers and claim as for a total loss. Hence, if a vessel 
 be valued at $20,000, and it turn out by survey and 
 estimate, that it will cost to repair her $12,000, and it 
 appear that the wages and provisions of the crew, port 
 charges, &o., will be $3,000. Under an adjustment as 
 of a partial loss — 
 
 The cost of repairs being $12,000 
 
 One-third is deducted for new .... 4,000 
 
 Leaving $8,000 
 
 The insured value being $20,000, half is $10,000, and 
 hence there can be no abandonment under either a New 
 York or New England policy. 
 
 The expense of repairs is, in general, to be estimated 
 at the place where they were actually made, or where 
 they would have been made, if made at all. But if a 
 vessel can be partially repaired at a port of distress, so 
 that she can be taken to another port and then fully 
 repaired at a less expense than at the first port, it would 
 seem to be the duty of the assured to do this, and con- 
 sequently, the underwriters are liable only for the lesser 
 expense. Center v. American Ins. Co., 7 Cow., 564. 
 But the cost of navigating the vessel from the port of 
 distress to the port where the final repairs are to be 
 made, is to be added, if such a port be one to which the 
 vessel would not have gone in the course of the voyage. 
 Lincoln v. Hope Ins. Co., Sup. Jud. Ct., Mass. T., 1857. 
 
 If the assured abandon, the salvage or proceeds, 
 belong at once to the underwriters, and are afterwards 
 at their risk ; if he do not, they are at his risk, because 
 if he claim for a total loss, he must in any event, ac- 
 
CONSTRUCTIVE TOTAL LOSS ON SHIP. 281 
 
 count for them. Thus, in Smithy. Manufacturers^ Ins. 
 Co., 7 Met., 448, Shaw, C. J., said : " An abandonment 
 changes the character of the master. It relates back to 
 the time of loss ; and as the master is authorised to 
 labor &c., in saving, for the benefit of all concerned, if 
 there have not been an abandonment, he is the agent of 
 the owner and assured, and if he receive money it is 
 for their account ; if he squander or waste it, it is their 
 loss. But, if there have been an abandonment on good 
 grounds, it relates back, and makes the master the 
 agent of the underwriters from the time of the loss, so 
 that, if the salvage have been squandered, it is their 
 loss." If there have been no abandonment, " the salvage 
 is not a set-off, not something belonging to the defen- 
 dants, to be used to balance the plaintiff's total demand ; 
 but it is a sum belonging to the plaintiff, in his own 
 hands, which diminishes his demand pro tantu, and to 
 the same extent diminishes the amount he is entitled 
 to recover." 
 
 If, by perils of the seas, the ship be so damaged as to 
 be incapable of proceeding on her' voyage, or keeping 
 the sea without repairs, at a place where such repairs 
 cannot be procured, — either from want of materials, or 
 from the master's total inability, after using his best 
 exertions, to obtain money or credit for the purpose of 
 raising funds to repair — that is a case of constructive 
 total loss on ship. Peek v. Merchants^ Ins. Co., 3 
 Mason, 27 ; 4 Cranch, 45 ; Bradlie v. Maryland Ins. 
 Co., 12 Peters, S. C. R., 400 ; Wood v. Lincoln Sf 
 Kennebec Ins. Co., 6 Mass., 479 ; Patrick v. Com. Ins. 
 Co., 11 John, 13 ; King v. Middletown Ins. Co., 1 
 
282 TOTAl LOSS AND ABANDONMENT. 
 
 Conn., 184 ; Church v. Marine Ins. Co., 1 Mason, 341 ; 
 Sewall V. U. S. Ins. Co., 11 Pick., 90; Abbott v. 
 Broome, 1 Caines, 292. 
 
 The questions, arising out of the above paragraph, 
 are, what is the measure of diligence that, for the pur- 
 pose of repairing the vessel, when repairs are necessary, 
 the master is bound to exercise ? When unprovided 
 with funds, what are the efforts that he ought to make? 
 What the means he is bound to employ to supply the 
 want? 
 
 If the master cannot raise the sums that are needed, 
 upon the credit of his owner or his own, the law not 
 only gives him the power, but makes it his duty, to 
 raise them upon the security of any part or of the whole 
 of the property and interests under his control. He 
 may pledge vessel, freight and cargo, by bottomry, 
 respondentia, or mortgage. And it is only when all 
 these means have been resorted to with proper dili- 
 gence, and have proved ineffectual, that he is justified 
 in breaking up the voyage, or that his owner, if insured, 
 has any right to abandon. But it by no means follows, 
 that the diligence and efforts of the master, in procur- 
 ing the means of repair, axe, in all cases, to be limited 
 to the port in which the disabled vessel has found a 
 refuge. Although neither the proper materials nor 
 workmen are there to be found, nor the requisite funds 
 there to be procured, it is by no means a necessary con- 
 sequence that he may at once abandon the voyage, and 
 "sacrifice, by an immediate sale, the property entrusted 
 to his charge. His obligation to repair the vessel, if 
 reparable at an expense of less than half her value 
 
CONSTEUCTITB TOTAL LOSS ON SHIP. 283 
 
 may still subsist, and his failure to perform the duty 
 operate to discharge the underwriters from all liability 
 beyond the payment of a partial loss. If, without any 
 prejudicial delay, or increase of expenses beyond a 
 moiety of the value, the want of materials or workmen 
 could have been supplied from a neighboring port, or 
 the necessary funds have been obtained by a commu- 
 nication with his owner or consignee, the conduct of 
 the master in breaking up the voyage and selling vessel 
 and cargo, could not be justified, and would furnish no 
 ground for the recovery of a total loss. The breaking 
 up of a voyage ought never to be sanctioned when it is 
 certain that the ship-owner, if uninsured, would have 
 continued to prosecute it ; nor, consequently, the aban- 
 donment of the vessel, as innavigable, ever be sustained 
 when it is certain that the owner, if uninsured, would 
 have elected to repair. 
 
 Lord Ellenborough, in Anderson v. Wallis, 2 M. & 
 Sel., 240, said : " An abandonment is never to be 
 authorized, except when at the time the loss was 
 actually total, or in the highest degree probable." And 
 if we analyze the cases that have settled the law, as it 
 now prevails in England, we shall find that it is this 
 principle that runs through, explains and justifies them 
 all. To select an example from each class of cases : 
 When the vessel insured is captured, there is an actual 
 total loss ; but as she may be recaptured or restored, an 
 abandonment is necessary to warrant its recovery ; a 
 title must be vested in the insurers to give them the 
 benefit of the "spesrecuperandi." But when the ves- 
 sel is stranded, the question, whether the loss shall be 
 
284 TOTAL LOSS AND ABANDONMENT. 
 
 deemed partial, or so far total as to warrant an aban- 
 donment, will depend upon the nature and extent of 
 the peril in which the vessel is involved, and the proba- 
 ble difficulty, hazard and expense of attempting to 
 deliver and repair her. When it appears that by proper 
 exertions, she might have been gotten off, and have been 
 fully repaired at a moderate cost, the abandonment is 
 void, and a partial loss only can be recovered ; and to 
 warrant the recovery of a total loss, it must be proved 
 that the delivery of the vessel from the peril was, upon 
 reasonable grounds, judged to be impracticable, or not 
 to be effected, unless at an expense that would absorb 
 her valne. In other words, it must be proved, that a 
 loss actually total, although not then existing, was in 
 the highest degree probable. Fontaine v. Phcsnix Ins. 
 Co., 11 Johns, 295 ; The ''Sarah Ann" 2 Sumner, 255 ; 
 Huckman v. M. L. Ins. Co., 5 Duer, 366. 
 
 Where the ship, by the perils insured against, is 
 reduced to such a state of innavigability that a prudent 
 owner, if on the spot and uninsured, in the exercise of 
 the best and soundest judgment that could be formed 
 under the circumstances, and acting for the benefit of 
 all concerned, would rather sell her as she lies, than 
 attempt to extricate or repair her, either because there 
 is no reasonable chance of ever extricating her from the 
 peril at all, or because the cost of repairing her, so as to 
 make her a navigable ship again, would exceed her 
 value when repaired, this amounts to a case of urgent 
 necessity, which will justify the master in selling, and 
 to a case of constructive total loss, which will entitle 
 the assured, on abandonment, to recover the whole 
 
CONSTEUCTIVB TOTAL LOSS ON SHIP. 285 
 
 amount of insuiance. 2 ArnouM, 1091 ; Robinson v. 
 Commonwealth Ins. Co., 3 Sumner, 220. 
 
 In the case of Scull v. Briddle, 2 Wash. C. C, 150, 
 Mr. Justice Washington held, that in case of extreme 
 necessity the master may sell in a foreign country, 
 rather than let the property perish, but not in the coun- 
 try where his owner lives. This was held in the case of 
 a sale of the materials of a wrecked vessel, which there 
 was no immediate necessity of selling, but which might 
 have been stored in a place of safety. But in the Brig 
 '^^ Sarah Ann," 2 Sumner, 215, Mr. Justice Story, 
 holding a contrary doctrine, remarked, that " if such an 
 urgent necessity do exist, as renders every delay high- 
 ly perilous, or ruinous to the interests of all concern- 
 ed, the duty of the master is the same, whether the 
 vessel be stranded on the home shore or on a foreign 
 shore, whether the owner's residence be near or be at a 
 distance. I am aware of the doctrine maintained by 
 my brother, the late Mr. Justice Washington, in Scull 
 v. Briddle, 2 Wash. C. C, 150 ; and, unless it is to be 
 received with the qualifications above stated, I cannot 
 assent to it." This opinion of Mr. Justice Story has 
 been affirmed by the Sapreme Court of the United States, 
 ia. the ca.se oi New England Ins. Co., v. Brig Sarah 
 Ann, 13 Peters, 387, where the court says : " The true 
 criterion for determining the occurrence of the master's 
 authority to sell, is the inquiry, whether the owners or 
 insurers, when they are not distant from the scene of 
 stranding, can, by the earliest use of ordinary means to 
 convey intelligence, be informed of the situation of the 
 vessel, in time to direct the master, before she will 
 
286 TOTAL LOSS AND ABANDONMENT. 
 
 probably be lost. If there be a probability of loss, and it 
 be made more hazardous by every day's delay, the 
 master may then act promptly, to save something for 
 the benefit of all concerned, though but little may be 
 saved. There is no way of so doing more effectually 
 than by exposing the vessel to sale ; by which the 
 enterprise of such men is brought into competition as 
 are accustomed to encounter such risks, and who know 
 from experience, how to estimate the probable profits 
 and losses of such adventures." 
 
 With regard to a total loss by sale of the ship by the 
 master, it will be well to consult the following authori- 
 ties : — 
 
 In the case of New England Ins. Co., v. Brig Sarah 
 Ann, 13 Peters, Sup. Ct. Reps., 215, it was held, that a 
 sale by the master of a stranded vessel, made in good 
 faith, from necessity, is valid. Good faith includes the 
 use not only of his best discretion and judgment con- 
 cerning the necessity of the sale, but the acquisition of 
 the best local information in his power, bearing on the 
 emergency, and the previous employment of any and 
 all reasonable means at his command, to get the vessel 
 afloat and out of danger. The necessity must^ arise 
 from an impending peril, to which the vessel is exposed 
 in her then condition, from which the master has no 
 reasonable means of relieving her, and by which, it is 
 probable, in the opinion of persons competent to judge, 
 that the vessel if not relieved, will be destroyed. 
 
 The mere facts that, as events turned, the vessel was 
 relieved, and that the cost of her repai^ and removal 
 was not very great, will not disprove the necessity for 
 
CONSTRTJCTIVE TOTAL LOSS ON SHIP. 287 
 
 a sale, or the competency of the master or of his 
 advisers. The power of the master to sell is not limited 
 to cases of necessity in foreign countries, or even out of 
 the limits of the State where the owners reside ; but he 
 should not sell in any case without first giving notice 
 to his owners, if the circumstances admit of the neces- 
 sary delay. He may sell the sails and rigging, though 
 landed, if a sound discretion requires them to be sold 
 when the hull is sold. 
 
 In Patapsco Ins. Co., v. Southgate, 5 Peters, S. C. R., 
 490, it was held : To justify a sale of a vessel insured, ne- 
 cessity and good faith on the part of the master, must 
 concur ; and the necessity is not to be inferred from a 
 sale by a skilful master acting in good faith ; it must be 
 determined from the other circumstances. 
 
 In Greeley v. Tremont Ins. Co., 9 Gushing, Sup. Ct. 
 Mass. K, 420 Shaw, C. J. said, " If a ship, after disas- 
 ter, remain in specie under the control of the assured, 
 and there be not in fact, a total loss, independent of a 
 sale by the master, such sale cannot make it so." 
 
 In Hall V. FranMin Ins. Co., 9 Pick. R., 466, it was 
 held ; The necessity which will justify a master of a ship 
 in selling her, is one in which he has no opportunity to 
 consult the owners or insurers, and which leaves him no 
 alternative. And this doctrine will be found to pervade 
 the decisions in 12 Pick. 286 ; 13 Pick. 543 ; 18 Pick. 
 83. 
 
 In 1st Parsons on Cont. 66, it is said " The master 
 may sell the property entrusted to him in a case of ex- 
 treme necessity, and in the exercise of a sound discretion. 
 Nor need the necessity be actual in order to justify the 
 
288 TOTAL LOSS AND ABANDOimENT. 
 
 master and make the sal^ valid. If the ship were in 
 peril which, as estimated from all the. facts within his 
 means of knowledge, was • imminent, and made it the 
 most prudent course to sell the ship as she was, without 
 further endeavors to get her out of her dangerous posi- 
 tion, this is enough, and the sale is justified and valid 
 although the purchasers succeed in saving her, and 
 events prove that this might have been done by the 
 master." 
 
 In 2d SmitKs Leading Gases, 576, the author of the 
 notes says : "In order to make out a case for a sale with- 
 out express authority, it would appear necessary to show 
 that the property at risk has been placed in a position of 
 such imminent danger, that it may be destroyed or ma- 
 terially injured, before recourse can be had to those to 
 whom it belongs; unless the intervention of other means 
 be resorted to than those which can be commanded by 
 the master." 
 
 In Gor don Y. Massachusetts F. Sf M. Ins. Co., 2 Pick. 
 263, in regard to the weight which should be given to a 
 survey of a vessel made after injury, in order to deter- 
 mine what it is the duty of the master to do with her — 
 Parker, C. J. said : When a vessel has been so far in- 
 jured by a peril of the sea as to make a survey necessary, 
 and the master with perfect good faith, calls such a sur- 
 vey, and the persons appointed to take it are competent 
 in point of skill and wholly disinterested, and they, af- 
 ter a full and sufficient examination of the vessel, find 
 her essentially injured, and come to a fair conclusion 
 that, from the high price of materials and labor, or the 
 difficulty of procuring them, the expense of repairing 
 
CONSTRUCTIVE TOTAL LOSS ON SHIP. 289 
 
 will be more than the worth of the vessel after she is 
 repaired, and therefore, they advise, for the interest of 
 all concerned, that the vessel he sold, in such a state of 
 things as this, it seems to me that a moral necessity ia 
 imposed on the captain to act according to their advice. 
 The jury in passing on the question must take into con- 
 sideration the opinion of these persons thus called on to 
 aid the master by their advice, and that opinion is enti- 
 tled to very considerable weight. If they acted fairly, 
 ajid the captain acted fairly, his acts in conformity with 
 their opinions will be justified unless it shall be made to 
 appear by those who contest the loss, that the facts on 
 which they founded their opinion were untrue, or the in- 
 ferences they drew from those facts were incorrect, and 
 the burden of proof should be on those who would im- 
 peach their proceedings." 
 
 In Prince v. Ocean Ins. Co., 40 Maine, 481, after a 
 thorough review of all the authorities, the court held 
 that the jury were rightly instructed when they were 
 told that the sale would be justified if there were an ap- 
 parent necessity for it, and that no qualification to inten- 
 sify the word " necessity" was necessary.- Shepley, C. 
 J. in this case, p. 492, speaking of the power of the 
 master, said : " He is under a moral obligation to pur- 
 sue that course and make that decision which will best 
 promote the interests of all for whom he has become the 
 agent. He must do wrong if he do not do so. He has 
 no alternative left, and must sell, if in the faithful dis- 
 charge of that duty, he determines that the calamity 
 will be most alleviated, and the interests of all be best 
 19 
 
290 TOTAL LOSS AND ABANDONMENT. 
 
 served by a sale. A moral necessity for a sale can mean 
 
 no more. 
 
 The above cases sufficiently show that the master has 
 power to sell only from necessity, and the sale is valid 
 therefore when made from an actual and stringent neces- 
 sity ; but this necessity must be judged of from the facts 
 and probabilities existing at the time and apparent to 
 the master, and not by the result. Nor is the master at 
 liberty to sell without notice to, or the advice of, the ow- 
 ners, provided he be so near them that he can delay the 
 sale for the purpose without endangering a greater loss. 
 And if he cannot thus communicate with his owners, 
 but know that the ship is insured, and can communi- 
 cate with the insurers, he ought to do so. 
 
 If the master sell, he cannot become the purchaser 
 himself; and if the port warden, surveyor or any per- 
 son authorizing or officially promoting the sale, should 
 buy, it would be a most suspicious circumstance, al- 
 though not perhaps sufficient, of itself, to avoid the sale. 
 The general rule is that a vendor cannot become a ven- 
 dee, and that a sale in such a case is void, and the par- 
 ties have no greater privileges than before the sale. 
 Church V. Marine Ins. Co., 1 Mason, 341; Barhery. 
 Marine Ins. Co., 2 Mason, 369. In Hall v. FranMin 
 his. Co., 9 Pick., 466, the question arose, whether a 
 sale at which one of the owners, but not the plaintiff, 
 became the purchaser, was valid ? The jury were in- 
 structed that the purchase by him could not affect the 
 right of the other owners to recover when the case came 
 before the full bench, the sale was held invalid on other 
 
CONSTRUCTIVE TOTAL LOSS ON SHIP. 291 
 
 grounds, and this question was not decided. 
 
 If in a port where the assured should have funds, the 
 master sell the vessel to prevent a forced sale by process 
 of law to pay off workmen who have a lien on the ves- 
 sel, the assured cannot abandon, because the loss was 
 caused by his neglect. Rucltman v. Merchants^ Louis- 
 ville Ins. Co., 5 Duer, 342, 368. 
 
 But if the repairs would cost less than half of the 
 ship's value, but be impossible because the master has 
 no funds and can raise none by bottomry or otherwise, 
 and the owners or insurers be too distant for advice or 
 assistance, the master may sell the vessel. Allen v. 
 Commercial Ins. Co., 1 Gray, 154, 158 ; Williams v. 
 Smith, 2 Caines, 13 ; Buckm,an v. Mer. L. Ins. Co., 
 5 Duer. 342. 
 
 If however the vessel be at a port of destination this 
 rule doe^ not apply, for the owner is obliged to furnish 
 funds at such a place. In Allen v. Commercial Ins. 
 Co., 1 Gray, 154, the vessel arrived at her port of desti- 
 nation in such a condition, that her estimated repairs 
 were $5,248. This sum, after deducting one-third, new 
 for old, was less than half her value. The owners were 
 present, but as they had no funds, the vessel was sold. 
 Held, that the underwriters were not liable for a total 
 loss. And even in a port of necessity, the master is not 
 authorised to sell the vessel for want of means to repair 
 her, if such means can be obtained by the exercise of 
 proper diligence, either on the credit of the owner, or by 
 pledging as security a part or the whole of the interest 
 under his charge. And indeed, the diligence and efforts 
 of the master are not to be limited, in all cases, to th«> 
 
292 TOTAL LOSS AND ABANDONMENT. 
 
 port in which the vessel has found a refuge. See also 
 5 Duer, 342 ; 20 Wend., 287. 
 
 A question has heen raised in both the United States 
 and England, whether, in the case of an old and de- 
 cayed ship, the jury, in estimating the probable cost of 
 repairs, with a view to ascertain whether they would ex- 
 ceed the sum required to enable the owner to abandon 
 her to the underwriters, are to be directed to exclude 
 from their estimate the cost of all such repairs as the de- 
 cayed state of the ship may have rendered necessary. 
 The better opinion in both countries, seems to be, that, 
 if the necessity of the repairs may fairly be referred to 
 the perils insured against, and the ship be shown or ad- 
 mitted to have been seaworthy when she sailed, and 
 repairs have been rendered necessary, in the course of 
 the voyage, by the perils insured against, the increased 
 expense of making such repairs, arising from the old or 
 decayed state of the ship, is not to be deducted in calcu- 
 lating whether the cost of repairing will exceed a moiety 
 of the ship's insured value after the usual deduction of 
 one-third new for old (or as the rule is in England, the 
 ship's value when repaired). 
 
 In Depeyster v. Col. Ins. Co., 2 Caines, 85, the ves- 
 sel's bottom at the time of sailing, was a little worm-eat- 
 en, but she was a seaworthy vessel. She was after- 
 wards sold at a port of distress, it being the opinion of 
 the surveyors that it would have cost more than the 
 vessel is worth to repair her. At the trial before the 
 jury, the judge charged " that if, in calculating the 
 repairs, they believed any were necessary on account of 
 injuries received from worms prior to the Vessel's sailing, 
 
CONSTBUCTIVE TOTAL LOSS ON SHIP. 298 
 
 the expense of such repairs should not be included in the 
 estimate." This direction was held to be incorrect, and 
 the rule was laid down that if repairs were rendered ne- 
 cessary by a peril insured against, they ought to be 
 made, without any other examination of the antecedent 
 state of the vessel, except to determine the fact of her 
 being seaworthy. Livingstan, J. said : "It may at 
 first seem hard to hold an insurer in any way liable for 
 the defective nature of the thing insured, but so long as 
 the subject of insurance be seaworthy, is it not part 
 of his contract that in case of accident, that he will de- 
 fray all the expense of placing her in statu quo? If she 
 be totally lost, he pays the whole sum subscribed with- 
 out any inquiry into her condition, any further than to 
 ascertain whether she were seaworthy ; so if she be par- 
 tially injured, the repairs being rendered necessary by a 
 peril insured against, they ought to be made, without 
 any other examination as to her antecedent state, ex- 
 cept to determine the fact of her being seaworthy ; for, 
 unless she had been further damaged by one of the per- 
 ils insured against, no repairs at all would have been 
 necessary. I adopt, as a general rule, that if the old in- 
 juries be not such as to render the vessel inna-vigable, 
 no deduction, in case of accident, is to be made on that 
 account from the cost of repair, and therefore think the 
 judge was mistaken in directing the jury to make the 
 distinction he did." 
 
 In Depau v. Ocean Ins. Co., 5 Cowen's R. 63, C. J. 
 Savage said : " That the insurer is not at liberty to show 
 that the vessel had received part of the injury anterior 
 to the voyage, has not been disputed since the decision of 
 
294 TOTAL ibSS AND ABANDONMENT. 
 
 Depet/ster v. The Col. Ins. Co. unless she were, in fact, 
 unseaworthy." 
 
 This seems to be the intent of the language of Mr. 
 Justice Stoiy in Feele v. Merchant's Ins. Co., 3 Mason, 
 27, 77, and in the English cases of Thompson v. Cal- 
 vin, LI. & Wels, 140, and Phillips v. Nairne, 11 L. J. C. 
 PI., 194. 
 
 The doctrine intended in these cases must be that if 
 worm eaten timbers be broken or injured by the perils 
 insured against, still the insurers shall pay for the re- 
 pairs, although it would have been necessary to have 
 made the repairs very soon, had no damage happened 
 in consequence of these perils. In many instances the 
 qualities of the subject, and the use to which it is put, 
 or the ordinary accidents incident to it in the situation 
 in which it is placed may concur with the perils insured 
 against in producing damage ; still, if the damage can 
 be satisfactorily attributed to the operation of those per- 
 ils, the insurers are liable, unless they be discharged by 
 some fault or stipulation by the assured. 
 
 The doctrine on the subject is very distinctly laid 
 down in a Louisiana case, {Hyde v. La. State Ins. Co., 
 2 Marin, N. S. 410). An insured steamboat was dam- 
 aged by running foul of another, so that it would cost 
 more than she was worth to repair her and make her 
 seaworthy, but the expense of the repairs of the damage 
 done would not be equal to half of the amount at which 
 she was insured in the policy. Had the accident not 
 happened, the boat might have run, in the route in which 
 she then was, eighteen months. Mr. Justice Porter, 
 giving the opinion of the court, said : " We apprehend 
 
CONSTRUCTIVE TOTAL LOSS ON SHIP. 295 
 
 the rule to be, that in case an injury be received by an 
 old decayed vessel, which, independent of the accident, 
 might have run for some time, if the repairs cannot be 
 put on her in such a manner that the unsound part can 
 be used as formerly, without an expense equal to one- 
 half of the value, or, in other words, where the injury 
 which the insurers are obliged to make good is the cause 
 of the decayed parts requiring repairs, then the assured 
 may abandon. But if repairing the injury which has 
 arisen from one of the perils insured against will replace 
 her in the same situation she was in before, no matter 
 how unsound all the other parts may be, then the insur- 
 ed shall not have this right, for all they can ask is, that 
 the boat may be placed in statu quo. The underwriters 
 are not obliged to make good the decayed and broken 
 parts of a vessel, unless the accident which happens 
 within the peril insured against be of such a nature as 
 Avill not admit of repairs being placed on her, so that the 
 decayed and rotten parts may be used as formerly." 
 The court was accordingly of opinion that this was not 
 a case of total loss. 
 
 Under the clause in the policy " that the assured shall 
 not have the right to abandon the vessel for the amount 
 of damages merely, unless the amount, which the insur- 
 er would be liable to pay under an adjustment as a par- 
 tial loss, shall exceed half the amount insured," it has 
 been held that in order to authorise an abandonment for 
 such cause, the Particular Average must amount to that 
 proportion of the value of the ship independently of the 
 General Average charges. Orroh v. Commonivealth Ins. 
 Co. 21 Pick. 456 ; Hall v. Ocean Ins. Co., 21 Pick., 
 
296 TOTAL LOSS AOT) ABANDONMENT, 
 
 473 ; Reynolds v. Ocean Ins. Co., 22 Pick., 191 ; Se- 
 wall V. U. States Ins. Co., 11 Pick., 90. So, expenses 
 incurred, in order to ascertain the extent of the loss, are 
 not to be included. Hall v. Ocean Ins. Co., 21 Pick., 
 472. So the wages and provisions of the officers and 
 crew, while the ship is undergoing repairs, are not to be 
 Included in the estimate for ascertaining whether the 
 cost of repairs will exceed the half value. But a rea- 
 sonable allowance should be made for the custody of the 
 vessel, if necessary, during such repairs, and for super- 
 intendence, which allowance should be charged to the 
 account of labor. Hall v. Ocean Ins. Co., 21 Pick., 
 472. 
 
 The assured is entitled to have the damage, done by the 
 peril insured against, completely and thoroughly repair- 
 ed, and it is not enough, to prevent the assured from 
 abandoning, that the vessel could be rendered seawor- 
 thy at an expense less than fifty per cent. Lincoln v. 
 Hope Ins Co., Sup. Jud. Ct. Mass., March T., 1857. 
 
 If, at the time the abandonment is made, the master 
 have commenced to repair the vessel, the abandonment 
 is invalid, and the assured can recover only for the ex- 
 pense incurred, although it exceed half the value of the 
 vessel. This proceeds on the ground that the state of 
 facts existing at the time of the abandonment deter- 
 mines^ the right of the assured to abandon. Humph- 
 reys V. Union Ins. Co., 3 Mason, 429; Dickey v. Am. 
 Ins. Co., 3 Wend., 658, 
 
 Mr. Justice Story, giving the judgment of the Su- 
 preme Court of the U. States in Bradlie v. Maryland 
 Ins. Co., 12 Peters, 405, decided that, in case of a loss 
 
CONSTRUCTTVB TOTAL LOSS ON SHIP. 297 
 
 less than total, by reason of iimavigability, if the master 
 have bottomried the ship, in order to raise funds for repair, 
 the underwriters have nothing whatever to do with the 
 bottomry bond, but are simply bound to pay the Partial 
 Loss, including their proportionate share of the extra ex- 
 pense of obtaining the money in that mode, supposing 
 no other way of raising it to have been practicable. 
 
 Where a bottomry bond executed at Hamburg, was 
 given at a premium of twelve and a half per cent., and 
 the bottomry holder agreed to give it up, if the sum ad- 
 vanced, and common interest were promptly paid, and 
 the agent of the. bottomry holder received a draft from 
 the owners at Hamburg for the amount and common 
 interest, and charged a commission for endorsing the 
 draft, and the bond was thus taken up, the underwri- 
 ters were held liable for the interest and commission, 
 and bound to pay them as part of the loss, since they 
 thereby obtained the benefit of the surrender of the 
 twelve and a half per cent, premium ; and they were 
 not entitled to the benefit without partaking of the bur- 
 then ; but it was also held, that one of the owners who 
 transacted the business, and gave the draft, and took up 
 the bottomry bond, as agent for all the owners, was not 
 entitled to claim against the underwriters any commis- 
 sion on his disbursement or for his services. Peters v. 
 Warren Ins. Co., 1 Story C. C, 464. As to this last 
 point, respecting commissions, see Brooks v. Oriental 
 Ins. Co. 7 Pick., 259; Sage v. Middletown Ins. Co., 
 1 Conn., 242. 
 
 A question often arises, whether an offer and readi- 
 ness on the part of the underwriters to repair a damag- 
 
298 TOTAL LOSS AND ABANDONMENT; 
 
 ed ship, and their actually repairing and restoring it in 
 time for prosecuting the voyage, or in reasonable time, 
 if no voyage be pending, at their own expense, whatever 
 the expense may be, whether over or under fifty per 
 cent, will annul an abandonment, and cancel and satis- 
 fy and discharge the claim for the loss ? 
 
 In Hart v. Delaware Ins. Co., 2 Wash. C. C. R. 346, 
 Washington, J. expressed the opinion that, " if the ves- 
 sel were injured more than one half its value, the assur- 
 ed had a right to claim for a total loss, unless the under- 
 writer ofiered to pay the amount of repairs at all events. 
 But he must engage to pay what may be necessary to 
 fit the vessel to prosecute the voyage, although it may 
 exceed what he would otherwise be liable for." 
 
 This doctrine was adopted by Mr. Chancellor Wal- 
 worth, in the Court of Errors of New York, twenty years 
 afterwards, in the case of Bicleet/ v. American Ins. Co. 
 2 Wend., 658. with the more specific qualification, that 
 the repairs must be made seasonably for the prosecution 
 of the voyage. 
 
 The same doctrine was also adopted in Pennsylvania, 
 in Ritchie v. United Ins. Co., 5 Serg. & R., 501. 
 
 It does not appear whether it is contemplated, accord- 
 ing to this doctrine, that underwriters on a part of a sub- 
 ject may make the experiment, or, if they do so, and 
 succeed, whether they can compel reimbursement from 
 the underwriters- on the remainder, or from the assured 
 for the uninsured proportion of the subject. See infra. 
 Commonwealth Ins. Co. v. Chase, 20 Pick. R. 142. 
 
 The doctrine, that any ofier by the underwriters to 
 make repairs, or any acts of theirs in making repairs, 
 
CONSTRtJCnVE TOTAL LOSS ON SHIP. 299 
 
 can defeat an abandonment or annul a right to ^nake 
 one, is strenuously opposed by Mr. Justice Story, in 
 Peele v. Merchants' Ins. Co., 3 Mason's R., 27. He says: 
 "I know of no judgment where it has been held, that, 
 in case of capture, or embargo, or blocka(J&, the right to 
 abandon can be intercepted by an offer to indemnify and 
 pay all the expenses ; if it could be, then an abandon- 
 ment in all such cases would be perfectly nugatory, for 
 the policy always imports, on the part of the underwri- 
 ters, an agreement to this effect. And yet, if the prin- 
 ciple be correct, I do not perceive why it is not as appli- 
 cable to a case of capture as of sea-damage ; to a case of 
 blockade as of shipwreck. It appears to me to be intro- 
 ducing a new element of discord into the law of insur- 
 ance, to allow the right of abandoranent to be a shifting 
 right, dependent on the will of both of the parties, and 
 to be defeated by the act of one, after it has rightfully 
 attached by the act of the other. And I am yet to learn 
 how it is that an offer, made at the time of abandon- 
 ment, to pay all expenses, can have more efficacy than 
 the same offer incorporated as it is in the original terms 
 of the policy. The assured may in all cases elect to re- 
 pair at the expense of the underwriter." 
 
 Mr. Justice Smith, of Connecticut, commenting upon 
 this doctrine says : "Where there is no express stipula- 
 tion on the matter it contradicts the whole current of 
 authorities to permit any subsequent transactions to re- 
 move the legal effect of abandonment rightly made at 
 the time, except the agreement of the parties. Nor can 
 I admit that the refusal of the underwriter to advance 
 money, or undertake to defray the expense, will in any 
 
800 TOTAI LOSS AND ABANDONMENT. 
 
 case tarn a Partial Loss into a Total Loss." 
 
 Mr. Phillips (vol. 2, p. 300) remarks, " the reasons of 
 Mr. Justice Story are very cogent, and in conformity to 
 the predominating jurisprudence, both direct and analo- 
 goTis, which teem to favor the doctrine that : — Where 
 there is no express stipulation on the matter any offer 
 and readiness of the underwriter to he at all the expense 
 of recovering or repairing the ship, and his actually re' 
 pairing it and tendering it to the assured will not divest 
 the assured of his right to recover for a Total Loss." 
 
 CONSTRUCTIVE TOTAL LOSS OF CARGO. 
 
 A total loss of the ship and an abandonment of her is 
 not necessarily followed by a total loss of the cargo. The 
 whole, or a principal part of the cargo may be saved and 
 sent on to its port of destination ; or it may be accepted 
 by the merchant at the port of distress ; in either of 
 which cases the assured caimot abandon to the under- 
 writers. 
 
 Goods are totally lost if destroyed by a peril insured 
 against ; or if injured to such an extent and in such 
 way as to make them of little or no value for the pur- 
 pose for which they were intended ; or if the voyage 
 upon which the insurance on the goods is made, be en- 
 tirely broken up. 
 
 The underwriters undertake, that the cargo shall be 
 capable of arriving at the port of destination, notwith- 
 standing any of the perils insured against It is, there- 
 fore, an insurance on the cargo for the voyage ; and if, 
 
CONSTRUCTIVE TOTAL LOSS OF CARGO. 301 
 
 by reason of the perils insured against, the cargo be per- 
 manently prevented from arriving at the port of destina- 
 tion, that constitutes a Total Loss, for which the insured 
 is entitled to recover. 
 
 If the vessel during the voyage, be injured by the 
 perils of the seas to the extent of half her value, and 
 no other vessel can be procured to carry on the cargo to 
 the port of destination ; or, if the vessel, though repar- 
 able, cannot be repaired within a reasonable time, and 
 before the cargo, being of a perishable value, will be 
 irretrievably destroyed by the delay to repair, in such 
 case, the assured is entitled to abandon and recover for 
 a total loss. Robinson v. Commonwealth Ins. Co., 3 
 Sumner, 224; Patapsco Ins. Co., v. Southgate, 5 Peters, 
 604 ; Whitney v. New York Firemen^ s Ins. Co., 18 
 John, 208. 
 
 Where the loss, as being Partial or Total, depends on 
 the amount of damage merely, the rule is the same in 
 respect to the cargo, as in a policy on the ship ; if the 
 loss exceed half the value, the assured may abandon. 
 Gardner v. Smith, 1 John Cas., 141 ; Judah v. Ran- 
 dall, 2 Caines Cas., 324 ; Ludlow v. Col. Ins. Co., 1 
 John, 335; Moses v. Col. Ins. Co., 6 John, 219; 
 Marcardiery. Chesapeake Ins Co., 8 Cranch., 39. 
 
 Where a constructive total loss is sought to be main- 
 tained, upon the mere ground of the deterioration of 
 the cargo, at an intermediate port, all deterioration of 
 memorandum articles must be excluded from the com- 
 putation, where there are both memorandum and non- 
 memorandum articles on board. In such a case, no 
 abandomaxent for mere deterioration in value, could b© 
 
302 TOTAL LOSS AND ABANDONMENT. 
 
 valid, unless the damage on the non-memorandum ar- 
 ticles exceed a moiety of the whole of the goods 
 insured, including the memorandum articles. Mar- 
 cardier v. Chesapeake Ins. Co., 8 Cranch., 39, 48. 
 
 There can be no constructive total loss by damage to 
 goods insured " free from Average." Moreau v. Z7. S. 
 Ins. Co., 1 Wheaton, 219 ; Nelson v. Col. Ins. Co., 3 
 Caines, 108, 110 ; Buchanan v. Ocean Ins. Co., 6 
 Cowen, 318, 331. 
 
 The terms used in a policy, " Total Loss," " free from 
 Average," " free from Particular Average," " not liable 
 for Piartial Loss," and " Partial Loss excepted," mean one 
 and the same thing ; therefore, the statement made 
 above, that where goods are insured " free from Ave- 
 rage," the assured cannot abandon and recover for a 
 Total Loss, applies with equal force to all these terms. 
 This is the general rule, of both law and practice. There 
 is one case, however, where it has been departed from 
 in Massachusetts. In Kettell v. Alliance Ins. Co., Sup. 
 Jud. Ct., Mass., Nov. T., 1857, it was held, that if the 
 subject insured be not perishable in its nature, the 
 assured may abandon, if the damage exceed fifty per 
 cent, of the valuation. Whatever weight this decision 
 may have in that State, the weight of authority, 
 generally, would not sanction an action under a policy 
 restricted to a total loss, by any of the many phrases 
 which are used for that purpose, unless the loss be total 
 without abandonment. And cases have recently arisen 
 in practice, where adjusters have endeavored to recover 
 for a total loss, based on that decision, but were rejected 
 unanimously by all the Boston underwriters. 
 
CONSTRUCTIVE TOTAL LOSS OF CARGO. 303 
 
 The rule of fifty per cent, does not apply if any sub- 
 stantial part of the goods insured arrive in safety at 
 its destined port. Thus, if, in the course of the voyage, 
 the ship he stranded, and relieved by jettison of eighty 
 per cent, of a shipment, and the remaining twenty per 
 cent, arrive in safety, there can be no converting of this 
 Partial Loss into a Total Loss by abandonment, whether 
 the Contribution due would amount to more than thirty 
 per cent., or less. Nor can a loss of part of the goods at 
 the port of destination, be made a constructive total loss 
 by abandonment, however large it may be. 2d Parsons, 
 Mar. Laic, p. 376. In Forbes v. Manufacturers^ Ins. 
 Co., 1 Gray, 371, Dewey, J., said : " The court are of 
 opinion, that after any considerable portion of the goods 
 insured, as in the present instance, thirty-eight per cent, 
 of the whole amount of the number of boxes of teas, has 
 arrived at the port of destination, and been landed in a 
 perfect state, the assured cannot then abandon and 
 recover for a Total Loss, upon the ground of the loss of 
 more than fifty per cent., at some former period of the 
 voyage." See also, Seton v. Delaware Ins. Co., 2 
 Wash. C. C, 175. 
 
 An insurance against total loss, or with the exception 
 of Particular Average, the two forms being equivalent, 
 excludes a constructive total loss on account of damage 
 to the article, so long as it remains in specie, ^ and can 
 be transported in the same ship, or another can be had 
 to transport it, to the port of destination, so as there to 
 be of value, as being the sort of article which it was at 
 the time of being shipped. The object of these clauses 
 
304 TOTAL LOSS AND ABANDONMENT. 
 
 is to free the underwriters from the effects of the sea- 
 water and other damage. It is the intention to protect 
 the merchant from the absolute loss of his shipment, 
 only, and they charge a lower premium accordingly. 
 The underwriters, therefore, are liable (incase of inju- 
 ry to the cargo itself a» the cause of loss) only in the 
 event of a total physical loss of the cargo, the whole 
 must be so damaged that it cannot reach its port of 
 destination specifically as merchandise. They are not 
 liable if any part of the cargo remain undamaged. 
 General Average charges, however, the underwriters 
 would have to pay, by virtue of the special effect of the 
 warranty of the memorandum clause. Maggrath v. 
 Church, 1 Caines, 196 ; Depeyster v. Sun Mutual Ins. 
 Co., 17 Barb., 306; Neilson v. Col. Ins. Co., 3 Caines, 
 108; SaltusY. Ocean Ins. Co., 14 Johns, 138; Bryan 
 V. New York Ins. Co., 25 Wend., 617; Robinson v. 
 Com. Ins. Co., 3 Sumner, 220; Huggr. Augusta Ins. 
 §f Banking Co., 7 Howard, 595. 
 
 CONSTRUCTIVE TOTAL LOSS ON FREIGHT. 
 
 An absolute total loss on ship and cargo, or, in some 
 cases, on either, involves an absolute total loss on jfreight; 
 in other words, where the circumstances of the case are 
 such as to make the ultimate earning of freight wholly 
 impossible, no notice of abandonment is requisite in or- 
 der to make the assured on freight entitled to recover the 
 whole sum he has insured on that interest. On the other 
 hand, where the circuinstances are such as to make the 
 
CONSTRUCTIVE TOTAL LOSS ON FREIGHT. 305 
 
 ultimate earning of freight highly douhtful, without, 
 however, destroying all hope of eventually earning it, 
 then notice of abandonment may be necessary to enti- 
 tle the assured on freight to recover as for a total loss 
 on that interest ; in a word, a constructive total loss of 
 ship or goods is a constructive total loss on freight. 
 
 If a ship be rendered innavigable and cannot be re- 
 paired for the prosecution of the voyage, and another 
 can be procured within a reasonable time and distance, 
 and the master have means to procure such at an ex- 
 pense materially less than the amount of the original 
 freight for the voyage, the underwriter on freight or 
 profits, is not liable to be prejudiced by the master's neg- 
 lect to tranship, any more than the underwriter upon 
 the cargo, and the loss will be adjusted as if the cargo 
 had been transhipped and forwarded ; and will be par- 
 tial or total according to the amount of the loss. Jor- 
 dan y. Warren Ins. Co., 1 Story's K, 342 ; 2d Phil- 
 lips, 343. 
 
 If, notwithstanding the disaster to the ship, the mas- 
 ter be ready to, and can, repair the damage so as to carry 
 on the cargo within a reasonable time, to the port of 
 destination, and so earn freight, he has a right to do so, 
 unless the shipper will pay him full freight. In such 
 case, therefore, there is not any loss of freight, total or 
 partial. Herbert v. Hallett, 3 John's Cas., 93. Lord 
 V.Neptune Ins. Co., Sup. Jud. Ct., Mass., Nov. T. 1857; 
 Jordan v. Warren Ins. Co., 1 Story, 342 ; Griswold v. 
 New York Ins. Co., 1 Johns, 205. 
 
 If the ship, after sailing, put back in a damaged oon- 
 
 20 
 
306 TOTAL LOSS AND ABANDONMENT. 
 
 dition to her original port of departure, the master is not 
 obliged to part with the goods, except on payment of 
 the full freight, if the goods were in such a condition 
 that they could be taken on so as to arrive in specie. 
 M'Gawv. Ocean Ins. Co., 23 Pick. 405; Lordx. Nep. 
 tune Ins. Co., Sup. Jud. Ct. Mass., Nov. T., 1857. 
 Griswold v. New York Ins. Co., 1 Johns, 205; Ogden 
 V. General Mutual Ins. Co., 2 Duer, 204. 
 
 The protraction of the voyage from any cause, gives 
 no right of abandonment, if the ship finally arrive and 
 earn her freight. Everth v. Smith, 2 M. & S., 278. 
 
 If the ship be injured, and a subsequent repair be ne- 
 cessary, which requires considerable delay, as the mas- 
 ter has a right to retain the cargo for freight, if he de- 
 liver it up without payment of freight, this is his own 
 fault, and not a loss by a peril for which the insurers 
 are liable. 
 
 If the" goods remain in specie, and be delivered to 
 the consignee, freight may be demanded, and therefore 
 is not lost, whatever be the degree of deterioration or 
 the amount of damage ; but they must remain what 
 they originally were, and not be merely the products of 
 decomposition, or fragments of a structure which no 
 longer exists. 
 
 Where, in consequence of damage to the ship, the 
 ship, cargo and freight are hypothecated for the expense 
 of repairs to an amount exceeding the value of the ship 
 and freight, this is a total loss of freight. 2d Phillips, 
 348. 
 If the freight be wholly lost, and the ship can earn 
 
CONSTRUCTIVE TOTAL LOSS ON FREIGHT. 307 
 
 another for the same voyage, or for the remainder of the 
 voyage, if a part have been performed, the new freight 
 so earned is to be accounted for to the insurers on freight, 
 as belonging to them by way of salvage. But if the 
 ship do not pursue the same voyage, but go upon an- 
 other, it has been held that the underwriters are not 
 entitled to the freight earned on this substituted voyage. 
 Jordan v. Warren Ins. Co., 1 Story, 342 ; 2d Phillips, 
 p. 350 ; 2d Parsons, p. 392. 
 
 A constructive total loss of cargo by capture, arrest or 
 detention, is a constructive total loss of freight. Sim- 
 monds v. Union Ins. Co., 1 Wash. 382, 443. 
 
 If the ship be insured in one place, and the freight in 
 another, and the ship be abandoned, the insurers on the 
 ship will take whatever subsequent freight the ship may 
 earn. But the insurers on freight will take the freight 
 previously earned ; because every abandonment refers, 
 in point of time, to the time of the loss which justifies 
 the abandonment. In Coolidge v. Gloucester Ins. Co., 
 15 Mass. , 341, 346, Mr. Justice Putnam said : " Until 
 that event happen the property remains in the assured ; 
 and the freight or earnings belong to him till that time, 
 if he stand his own insurer for the freight, otherwise to 
 the insurer on the freight. But after the loss has hap- 
 pened, the insurers, in virtue of the abandonment, be- 
 come the owners, and are liable to the repairs and expen- 
 ses, and entitled to the earnings of the ship." See also. 
 United Ins. Co. v. lenox, IJohns, Cas, 377 ; Leaven- 
 worth V. Delajield, 1 Caines, 573 ; Simonds v. Union 
 Ins. Co. 1 Wash, C. C. 443. It is clear, therefore, that 
 
308 TOTAL LOSS AND ABANDONMENT. 
 
 as the underwriters on ship are entitled to the freight 
 earned subsequent to the time of the loss, they must 
 bear the expenses of earning it,pro rata ; — ^that is to say, 
 the wages &o. of the crew, are to be borne, pro rata, 
 after the event, by the insurers of ship ; and by the in- 
 surers of freight, pro rata, before the event for which 
 the abandonment is made. 
 
CHAPTER V. 
 
 BOTTOMRY. 
 
 When by any of the accidents of the navig:3,tion, dis- 
 bursements are required to be made during the voyage, 
 it is evident that each party concerned is obliged to pro- 
 cure the necessary funds at the time and place where 
 they are wanted. The ship-owner is under no obliga- 
 tion to furnish at his expense and risk, money required 
 on account of the cargo, nor can the owner of goods on 
 board be obliged to provide the money required for the 
 necessaries of the ship, or of other goods on board. It 
 follows therefore, that when money is borrowed abroad 
 for such purposes, by a person authorised to act on behalf 
 of a party concerned, this is at the expense and risk of 
 such party, who thereby becomes personally liable to the 
 lender, and without reference to the future fate of the 
 thing for which the money was laid out ; and that a 
 claim for Partial Loss, as well as a Contribution for Gen- 
 eral Average, may take place even after a subsequent 
 total loss of the ship and cargo. We have, under the 
 head of General Average, endeavored fully to explain, 
 that, if money be advanced abroad by the ship-owner, 
 
310 BOTTOMRY, 
 
 to meet expenses at a port of necessity (unless raised on 
 Bottomry), such advance establishes a valid claim 
 against the proprietors of goods at risk, and a personal 
 action may be maintained against the said proprietors 
 therefor. In other words : Expenses incurred for the 
 common benefit, mast be reimbursed in General Ave- 
 rage, whether the ship and cargo be eventually saved or 
 not. Spafford v. Dodge, 14 Mass. 66. 
 
 The means by which the master of a vessel may raise 
 the money requisite abroad for the purposes of the voy- 
 age are, generally speaking, a loan under the responsi- 
 bility of tjie owners (by drawing bills upon them), a bot- 
 tomry loan, and the sale of a part of the cargo. Among 
 these, he may, as far as the circumstances of the case 
 admit, select that which he thinks the most eligible. 
 When a ship is under Average, in a port in the same 
 country where she is owned, the expenses are usually 
 paid by the master drawing a bill on the owner. Should 
 the sum required be too large for the owner to meet, he 
 sometimes procures a portion from the proprietor of the 
 cargo, or, if he be insured, an advance from his under- 
 writers. Arrangements relating, to funds are naturally 
 more easy to make when the owners reside in the same 
 country in which the Average occurs, and where there 
 'are means of communication between the master and 
 his owner. Even in foreign countries, it frequently hap- 
 pens that a ship-owner has sufficient credit for the agent 
 or merchant disbursing average expenses on his vessel, 
 to be satisfied with a bill of exchange upon him with- 
 out further security. It is exceedingly advantageous 
 thus to be able to raise funds, and save considerable ex- 
 
BOTTOMSr. 811 
 
 pense. But in a majority of cases, the agent who ad- 
 vances the money for a vessel under Average in a for- 
 eign country, requires a greater security for his outlay 
 of funds than a simple hill of exchange. When money 
 cannot be raised in this manner, the master should take 
 an early opportunity of ascertaining the fact, communi- 
 cating full particulars, with estimates of the probable 
 expense to^s owners; and with the present facilities 
 of steam, if his vessel be in an European port, he will 
 probably be able to transmit intelligence and receive a 
 reply by the time his vessel is again ready for sea. By 
 the reticulation of the electric telegraph, the master is 
 able to communicate from almost all places in the Uni- 
 ted States and Europe with his owners, but as messages 
 by the Atlantic Cable, are at present exceedingly ex- 
 pensive, this mode of communicating with the owners 
 should not be resorted to unless the case be so urgent, 
 that intelligence by other means would be injurious to 
 the interests concerned. Where, however, the port to 
 which the vessel may be driven for repairs, will not ad- 
 mit of the master's consulting with his owners, it is 
 usual to pay the disbursements by a Bottomry Bond, 
 but as this is an expensive means of raising money, the 
 master should endeavor to reduce the amount to be bor- 
 rowed as much as possible ; to do this he should apply 
 the sale of any condemned stores of the ship, and the 
 proceeds of any damaged goods, part of the cargo, which 
 surveyors have recommended to be sold on the spot, in 
 diminution of the amount of disbursements. 
 
 Although an owner may make a bottomry bond any 
 where, and for any reason, the master can do so abroad 
 
312 BOTTOMET. 
 
 only, and from necessity ; his power in this respect be- 
 ing exactly analogous to his power to sell, excepting that 
 he may be justified in giving a bottomry bond by a less 
 necessity than is required to authorise his sale of the 
 ship. And the power belongs to any one who is law- 
 fully master of the ship however appointed. The Gra- 
 titudine, 3 Rob. Adm., 240, 266; The Nelson, 1 Hagg. 
 Adm., 169; The Orelia, 3 Hagg. Adm., 1. 
 
 It is frequently said, that a master in a port of this 
 country, may bottom his ship if her home port be in ano- 
 ther state. Seldenv. Hendrickson, 1 Brook. C. C, 396. 
 The vessel in this case belonged to Richmond, Virginia, 
 and the bond was given in New York. But this ruling 
 cannot be sustained ; for the master does not have the 
 power of thus binding the ship to the payment of mari- 
 time interest, if the owner can be consulted, whether he 
 be in the same, or in a neighboring country. If the 
 master be in the British provinces, and the owner in the 
 state of Maine, within a day's sail or ride of him, the 
 master can have no such power. It must be a foreign 
 port in the sense of a distant port ; this is sufficient ; and 
 it may therefore be the port of destination. Reade v, 
 Comm. Ins. Co., 3 Johns. 352. 1 Parsons' Mar. Law, 
 p. 414. 
 
 In a case of necessity, where it is impossible to com- 
 municate with the owners, the master may give a bond, 
 although the owners reside in the same country. La 
 Ysabel, 1 Dods, 273. 
 
 The master, for the same reason, has no such power if 
 he have funds of the owner within his reach ; or if he 
 can borrow the money on the personal credit of the 
 
BOTTOMEY. 313 
 
 owner ; or if a consignee be there with funds of the own- 
 er, or any agent of the oAsraer ; or, it is said, if the mas- 
 ter have funds of his own. The ship Packet, 3 Mason, 
 255, 263. 
 
 The essential pre-requisites to the validity of a bot- 
 tomry bond given by the master are, 1st, That it be given 
 in the absence of the ship owner, and at such a distance 
 from his residence, and under such circumstances as that 
 he cannot be consulted in regard to it without injurious 
 delay. La Ysabel, 1 Dod, 273 ; The Trident, 1 W. 
 Rob., 29 ; Patten ^ Dickson v. The Randolph, Gilpin, 
 457. 2d, That the money, repairs or supplies for which 
 the bond is given be necessary — meaning thereby, rea- 
 sonably fit and proper under the actual circumstances, 
 or, at least, shall appear to the lender upon due enquiry 
 to be necessary — ^to eaable the ship to complete the voy- 
 r-o. T/lc-For^^^Mc/e, 3 Sumner's Rep., 228; The Prince 
 of Saxe Coburg, 3 Moore, P. C. R., 1 ; Gratitudine, 3 
 C. Rob., 240 ; The Aurora, 1 Wheat, 96. 3d, That the 
 money, repairs or supplies for which the bond is given, 
 be advanced, or be made or furnished, on the credit of 
 the ship, and that it do not appear to the lender, on due 
 and reasonable enquiry, that the money or repairs or sup- 
 plies can be had on personal credit. Heathorn v. Darl- 
 ing, 1 Moore, P. C .R. 5 ; The Saxe Coburg, .3 Moore, 
 P. C. R. 1. The Randolph, Gilpin, 457. If the advan- 
 ces or repairs were necessary, it belongs to the owner to 
 show that they could be procured on personal credit. 
 The Virgin, 8 Peters, 538. 4th, That the principal and 
 interest put by the bond at the risk of the voyage, i. e., 
 
814 BOTTOMRY. 
 
 that the payment of the money shall be made by the 
 bond to depend upon the safe arrival of the ship at the 
 end of the voyage upon which the money is loaned. 
 The Emancipation, 1 W. Rob., 125 ; The Atlas, 2 Hagg. 
 65 ; Stainbanh v. Shepard, 20 Eng. L. & Eq., 547. 
 
 A bottomry bond given by the master after the advan- 
 ces had all been made, is valid, provided that they were 
 made with an understanding that such a bond would 
 be given. The Virgin, 8 Peters, 538. But if the ad- 
 vance were originally made on personal credit, the bond 
 is invalid. The Trident, 1 W. Rob., 34 ; The Augus- 
 ta, 1 Dod, 283 ; The Hunter, Ware, 249. 
 
 In a suit on a bottomry bond given by the master, the 
 libellant must prove by evidence, other than the bond 
 itself, that the money was lent, or the repairs made, 
 and material furnished, to the amount claimed ; and 
 that they were necessary to enable the vessel to perform 
 the voyage or for her safety. He must also exhibit an 
 account of the items advanced, with sufficient proof to 
 support them, to enable the court to judge of their ne- 
 cessity. The brig Bridgewater, 1 Olcott, R., 35. 
 
 Bills of exchange may be drawn on account of the 
 supply, and a bottomry bond given at the same time as 
 a collateral security, in this sense, that if the bills of ex- 
 change be honored, (that is, accepted and paid, if they 
 require acceptance, or paid if they do not, as the case 
 may be), the bottomry bond is discharged, and though 
 the ship arrive, the maritime interest is not payable ; if 
 dishonored, the amount is payable on arrival, by means 
 of the remedy against the ship, and in that case with 
 
BOTTOMRY. 315 
 
 maritime interest. Stainbank v. Shepard, 20 Bng. L. 
 & Eq. 547 ; The St. Catherine, 3 Hagg. 250; The Atlas, 
 3 Hagg. 43; The Emancipation, 1 W. Rob., 124; The 
 Hunter, Ware, 249. 
 
 The borrower on a bottomry bond is discharged of the 
 payment only in the case of an actual loss occasioned, 
 by the perils the lender assumes ; and the insurer on a 
 bottomry interest is liable only in the case of an actual 
 loss occasioned by the same perils. Joyce v. William- 
 son, 3 Doug., 164 ; Thompson v. The Royal Ex. Ass. 
 Co., 1 Maule & Selwin, 30 ; Pope v. Nicherson, 3 Story, 
 465. In case of a deviation from the voyage or a vol- 
 untary abandonment of it, after it had been commenced, 
 the bond becomes absolute and payable. The Dante, 
 2 W. Rob., 427 ; Pope v. NicUrson, 3 Story, 465. 
 
 A bottomry bond is sometimes taken for a larger am- 
 op. it, but that furnishes no ground of objection to the 
 bond, except for the surplus; for a bottomry bond may 
 be good in part and bad in part, and it will be upheld 
 by courts of admiralty as a lien to the extent to which it 
 is valid ; as such courts, in the exercise of their juris- 
 diction, are not governed by the strict rules of the com- 
 mon law, but act upon enlarged principles of equity. 
 There are many authorities to this effect, but it is neces- 
 sary to mention only, The Virgin, 8 Peters, U. S. S. C. 
 Reps. 208; The Augusta, 1 Dodson, 283; The Tartar 
 and The Nelson, 1 Hag. Adm. R. 169, 176. 
 
 A bottomry bond does liot make the owners person- 
 ally debtors. The Nelson, 1 Hag. Adm. R. 176. The 
 Virgin, 8 Peters, 208. 
 
 A bottomry bond which hypothecates the ship, does 
 
316 BOTTOMRY. 
 
 not, of necessity, hypothecate the freight also. But the 
 master has the same power over the freight that he has 
 over the ship, and may hypothecate the freight under 
 the same circumstances, for the same reasons, in the 
 same way, and hy the same hond. And a general hy- 
 pothecation of the freight by the master in a foreign 
 port, will be construed to include all the freight of the 
 whole voyage, whether earned at the time the bond is 
 made or not, provided it have not been paid to the master 
 or owner. The Gratitudine, 3 Rob. Adm., 240, 274 ; 
 The Nelson, 1 Hagg. Adm., 169 ; The schooner Zephyr, 
 3 Mason, 341 ; The John, 3 W. Rob., 170. 
 
 A bottomry bond is preferred to any other lien what- 
 ever, excepting only the lien of the seamen for wages, 
 and the lien of material men for repairs or supplies in- 
 dispensable to her safety. The reason of this rule is, 
 that a bottomry bond saves the ship ; for it is to be pre- 
 sumed that it was made from a strict necessity ; and if 
 it had not been made, the other liens on it would have 
 been worthless. The reason of the exception is, that the 
 bottomry bond itself would never have brought the ship 
 within reach of any person having an interest or a lien 
 upon her, had she not been navigated home by the sea- 
 men. The Mary, 1 Paine, C. C, 571 ; Blaine v. Ship 
 Charles Carter, 4 Cranch, 328 ; The Virgin, 8 Peters, 
 538. For the reason that a bottomry bond is supposed 
 to have saved the ship, it is construed very liberally by 
 all courts, and if possible the intention of the parties is 
 carried into effect. Pope v. Nickerson, 3 Story, 365. 
 
 A bottomry bond is generally regarded as a negotiable 
 instrument or interest, which being transferred in good 
 
BOTTOMRY. 317 
 
 faith and for consideration, may be put in force by the 
 holder in his own name. 
 
 Admiralty courts are especially disposed to apply, to 
 all questions which come before them on- contracts of 
 bottomry, principles and considerations of equity. Thus, 
 although there be no precise limit to what is called mari- 
 time interest, and in some cases a very large per centage 
 be allowed, yet if it be apparent and certain that the 
 lender took advantage of the borrower's necessities to 
 make him pay for the money far more than it was worth, 
 a court of admiralty will interfere and reduce the inter- 
 est within proper bounds. La Ysabel, 1 Dods, 273 ; The 
 Zodiac, 1 Hagg.Adm., 320, 326 ; The Cognac,2 Hagg. 
 Adm., 377 ; The Hunter, Ware, 249 ; The Ship Pack- 
 et, 3 Mason, 255, 260. 
 
 As a master may make a bottomry of the ship, so 
 either a part, or the whole of the cargo may be hypothe- 
 cated by him if necessary. If the goods be hypotheca- 
 ted by the master abroad, this is usually done by a res- 
 pondentia bond. And the rules in reference to this ne- 
 cessity are the same as in the case of bottomry. A loan 
 on respondentia is a loan on maritime interest ; it must 
 therefore be a loan which is secured by the goods on 
 their safe arrival, but which puts both principal and in- 
 terest at risk, and gives the lender no claim for any pay- 
 ment whatever if the goods be lost. In practice the 
 goods are also transferred to the obligee by an indorse- 
 ment and delivery of the bills of lading as collateral se- 
 curity and this gives to the obligee a constructive pos- 
 session of the goods. 1 Parsons, 437. 
 
 There is no settled form of contract in use on these 
 
318 - BOTTOMET. 
 
 occasions. Sometimes an instriunent in the form of a 
 bond, at others, in the form of a bill of sale, at others, of 
 a different shape, is made use of But whatever the 
 form, the occasion of borrowing, the sum, the pre- 
 mium, the ship, the voyage, the risks to be borne by 
 the lender, and the subjection of the ship itself as se- 
 curity for the payment, all usually are, and properly 
 ought to be, expressed. It is absolutely necessary that 
 the liability of the lender to the sea-risks should appear, 
 or be fairly collected from the instrument, otherwise the 
 reservation of maritime interest will render the security 
 void, on the ground of usury, not only as a. charge upon 
 the ship, but also against the person of the borrower. 
 
 When two or more bonds are given on the same voy- 
 age, the last takes precedence, and so on in retrograde 
 order. The last one being satisfied, the penultimate 
 takes what is left, &c. There is one exception however. 
 If after a bond has been given, the captain obtain a 
 credit from his owner, and then give a subsequent bond, 
 the first in this case takes priority. 
 
 It has been doubted whether a bottomry bond may be 
 given to a consignee of the ship, or to any party hold- 
 ing, to the ship owner, the relation of agent to principal. 
 But it has been decided by authority, that such a bond 
 is valid. If the consignee however, have funds in his 
 hands belonging or due to the owners of the vessel, it is 
 well settled that he cannot lend his own money on bot- 
 tomry. Hurry v. The Ship John Sf Alice, 1 "Wash. C. 
 C„ 293 ; The Ship Lavinia v. Barclay, 1 Wash. C. C. 
 49; Ross V. The Ship Active, 2 Wash. C. C, 226; 
 Fease v. Commercial Ins. Co., 2 Johns, 352. 
 
BOTTOMEY. 319 
 
 FORM OF BOTTOMRY BOND. 
 
 Know all men, hy these presents, that I, A. B., master 
 of the ship " Enterprise," of Liverpool, in the Kingdom 
 of Great Britain, now lying at anchor in the port of Bos- 
 ton, in the Commonwealth of Massachusetts, in the Uni- 
 ted States of America — for myself and C. D. of Liverpool 
 aforesaid, merchant, and owner of the said ship " Enter- 
 prise," am held and firmly bound unto E. F., of Boston 
 aforesaid, merchant, in the penal sum of twenty thous- 
 and dollars, for the payment of which, well and truly to 
 be made unto the said E. F., his heirs, executors, admi- 
 nistrators or assigns, I hereby bind myself, my heirs, ex- 
 ecutors and administrators, firmly by these presents. In 
 witness whereof, I have hereunto set my hand and seal, 
 
 in the city of Boston aforesaid, this day of in 
 
 the year 18 — . Whereas, the above bound A. B. hath 
 taken up and received of the said E. F. the full and just 
 sum of ten thousand dollars upon the bottomry of the 
 said ship " Enterprise," whereof the said A. E. is now 
 master, at the rate of twenty per centum (20 per cent.) 
 for the voyage from the port of Boston as aforesaid, to 
 the said port of Liverpool, for the purpose of enabling 
 him the said A. B. to procure the necessary repairs for 
 the said ship to fit her for sea, she having put into the 
 said port of Boston in distress, and he, the said A. B., 
 being destitute of the other means to obtain them ; the 
 said ship having permission to touch, stay at, and pro- 
 ceed to, all ports and places within the limits of the voy- 
 age. In consideration whereof, the usual risks of the 
 seas, rivers, enemies, fires, pirates &c. are to be on ac- 
 
320 BOTTOMEY. 
 
 count of the said E. F., the said A. B. doth, by these pre- 
 sents, mortgage and assign over to the said B. F., his 
 heirs, executors, administrators and assigns, the said ship 
 " Enterprise," her boats, tackle, apparel and furniture. 
 And it is hereby declared, that the said ship " Enter- 
 prise" is thus assigned over for the security of the afore- 
 said money so advanced to the said A. B., and shall be 
 delivered to no other use or purpose whatever, until pay- 
 ment of this bond be first made, with the premium due 
 thereon. 
 
 Now, the condition of this obligation is such, that if 
 the above bound A. B., his heirs, executors or administra- 
 tors, shall and do, well and truly pay, or cause to be 
 paid, unto the said E. F., or to his attorney in Liverpool, 
 legally authorised to receive the same, his executors, 
 administrators or assigns, the full and just sum of 
 ten thousand dollars, being the principal of this bond, 
 together with the premium which shall become due 
 thereon, at or before the expiration of ten days after the 
 safe arrival of the said ship "Enterprise" at her moor- 
 ings in the river Mersey, or, in case of the loss of the said 
 ship " Enterprise," such an Average as by custom shall 
 have become due on the salvage, then this obligation 
 to be void and of no effect, otherwise to remain in full 
 force and virtue. Having signed to three bonds of the 
 same tenor and date, the one of which being accom- 
 plished, the other two to be void and of no effect. 
 
 Signed, sealed and delivered A. B. [l. s.] 
 
 in the presence of 
 G. H. 
 I. K. 
 
CHAPTER VL 
 
 SALVAGE. 
 
 Salvage is a compensation for maritime services, ren- 
 dered in saving property or rescuing it from impending 
 peril, on the sea, or wrecked on the coast of the sea, or 
 on a pubKc navigable river or lake, where inter-state or 
 foreign commerce is carried on. " I take it to be very 
 clear," says Mr. Justice Story, " that wherever the ser- 
 vice has been rendered in saving property at sea, or 
 wrecked on the coast of the sea, the service is, in the 
 sense of the maritime law, a Salvage service." The 
 ScKr. Emulous, 1 Sumner, 210 ; The Clifton, Light- 
 body, 3 Hagg. Ad., 117 ; Fretz v. Bull, 12 Howard, 466. 
 The amount of compensation for a Salvage service, ac- 
 cording to the maritime law of the United States and 
 England, rests, in the sound discretion of the court, upon 
 a full consideration of all the facts of the case. The rea- 
 sonableness of the compensation must, in the nature of 
 the case, depend upon a full and fair consideration of all 
 the circumstances of time, place, labor, danger, value 
 and number of salvors who performed, or were necessa- 
 ry to perform, the Salvage service. 
 
 Persons engaged in the business of wrecking, are very 
 apt to acquire a habit of thinking that they are entitled, 
 21 
 
322 SALVAGE. 
 
 of right, to a reward for saving property, to something 
 more than common pay for common labor. And when 
 that reward is withheld from them, or is not so large as 
 they think it ought to be, they think great injustice is 
 done them. Whereas the truth of the matter is, accord- 
 ing to all the leading cases on the law of Salvage in the 
 United States and England, salvors are entitled, oi right, 
 to a reasonable compensation for work and labor only ; 
 and no injustice is done them when they are paid this, 
 and the reward is withheld. The reward — or the excess 
 beyond pay for work and labor — is not awarded to them 
 on their own account at all, bat purely on account of 
 commerce in general, to encourage others to save pro- 
 perty in the like peril. If persons would as readily 
 and voluntarily save property at sea, as they do on the 
 shore from a burning house, no salvage would be de- 
 creed by the courts in the one case, any more than in 
 the other. The Blaican, 2 Crouch, 240 ; The Sarah, 1 
 C. Kob., 312 ; The Hector, 3 Hagg. 95. From this view 
 of the subject, it follows, that salvages ought never to 
 be graduated at higher rates than the good of commerce 
 reaUy requires ; and whenever it appears that more ves- 
 sels and men are employed in the business of saving 
 property, than the good of commerce truly requires, it is 
 evident that the rates of salvage have been too high — too 
 stimulating. Commerce may be damnified by too high 
 salvages, not only by being subjected to their payment, 
 but also by increasing the inducement to salvors to col- 
 lude with shipmasters with a view to the acquisition of 
 such salvages. 
 
SALVAGE. 323 
 
 The ingredients of a salvage service are, first, enter- 
 prise in the salvors in going out in tempestuous weather 
 to assist a vessel in distress ; risking their own lives to 
 save their fellow-creatures, and the property of others ; 
 secondly, the degree of danger and distress from which 
 the property is rescued — whether it were in imminent 
 peril, and almost certainly lost if not at the time 
 rescued and preserved ; thirdly, the degree of labor and 
 skill which the salvors incur and display, and the time 
 occupied ; lastly, the value. Where all these circum- 
 stances concur, a large and liberal reward ought to be 
 given ; but where none, or scarcely any take place, the 
 compensation can hardly be denominated a salvage 
 compensation ; it is little more than a mere remune- 
 ration pro opere et labore. The Hector, Freeman, 3 
 Hagg. Adm., 90; The Industry, Davies, 3 Hagg. Ad., 
 203 ; The Clifton, 3 Hagg. 121 ; Tyson v. Prior, 1 
 Gall, 133. 
 
 The kind and degree of peril to which the property 
 was exposed, are important considerations in determin- 
 ing questions of salvage. No salvage can be earned, 
 unless the peril were real ; not speculative, merely. But 
 it need not be such, that escape from it by any other 
 means than by the aid of salvors was impossible. It 
 is sufficient to entitle to salvage, that the peril was 
 something extraordinary — something differing, in kind 
 and degree, from the ordinary perils of navigation. 
 
 In the case of the Emulous, 1 Sumner's R., 216, Mr. 
 Justice Story, in estimating the degree of peril from 
 which the property was rescued, in order to fix the 
 amount of compensation, said ; " Salvage is a compen- 
 
324 SALVAGE. 
 
 sation for the rescue of the property from present, 
 pressing, impending perils, and not for the rescue of it 
 from possible future perils. It is a compensation for 
 labor and services, for activity and enterprise, for 
 courage and gallantry actually exerted, and not for the 
 possible exercise of them, which, under other circum- 
 stances, might have been requisite. It is allowed, 
 because the property is saved ; not because it might 
 have been otherwise lost upon future contingencies. 
 Subsequent perils and storms raay enter as an ingredi- 
 ent into the case, when they were foreseen, to show the 
 promptitude of the assistance, and the activity and 
 sound judgment with which the business was con- 
 ducted; but they can scarcely avail for any other 
 purpose. Ought the Salvage to be diminished by a 
 favorable state of the weather after the arrival in port ? 
 If not, why should it be increased by an unfavorable 
 state of the weather ? To introduce such ingredients 
 into the estimate of Salvage, which were neither fore- 
 seen nor acted upon, would con^pel the court to deliver 
 itself over to conjectures, resting on loose probabilities, 
 the nature and extent of which could never be mea- 
 sured. It would be to go off soundings ; to desert facts ; 
 and to be guided by speculations, always questionable, 
 and sometimes deceptive." 
 
 Where a stranded vessel is saved from imminent 
 peril, the Salvage ought to be greater, other things 
 being equal, than where the vessel is lost, and the cargo 
 only, saved ; and vice versa. If the vessel and cargo 
 be saved in a comparatively undamaged condition, by 
 the skill and activity of salvors, the reward ought to be 
 
salvage; 325 
 
 increased in proportion, in some degree;, to the superior 
 benefits conferred, and to the skill and activity of the 
 salvors ; and vice versa. And if saved by carrying out 
 anchors, or by the skilful use of the sailfe) or by pilot- 
 ing, the reward may be fully equal to what the 
 number of salvors necessary to that service would 
 probably have received, had the vessel been lost and 
 the cargo, only saved. Marvin^ $ Wreck, and Salvage, 
 p. 121. 
 
 The value of the property saved is often an important 
 ingredient in determining the amount of Salvage. The 
 remuneration to the salvor and benefit to the owner are 
 always larger, where the property that receives assist- 
 ance is large, than where it is small ; and vice versa. 
 lUd, 122. 
 
 It is competent for the parties interested to agree 
 upon a stipulated sum, as a SalVage reward, for the 
 rendition of Salvage services, to be paid only in the 
 event that such services save, or contribute to save, the 
 property. But such agreement will not be binding 
 upon the master, or owner of the property, unless the 
 court can clearly see that no advantage has been taken 
 of the party's situation, and that the rate of compensa- 
 tion agreed upon is just and reasonable. The Schooner 
 Emulous, 1 Sumner, 207. 
 
 The master or owners of a ship have no right to make 
 an agreement for Salvage assistance to the ship irres- 
 pective of the cargo. Such an agreement would be an 
 encouragement to fraudulent bargains by owners and 
 masters of vessels, to the detriment of owners of the 
 cargo ; and, of course, salvors would make a bargain 
 
326 SALVAGE. 
 
 much more advantageous to the owners of the ship, 
 with the master, when they are sure of obtaining his 
 assistance to get a larger Salvage from the owners of 
 the cargo. The Westminster, 1 W. Eob., 235. In 
 assessing the Salvage upon the ship and cargo, the 
 usual rule of the court is to take the whole value of 
 the ship and cargo, and assess the amount of remune- 
 ration upon the whole, each paying its due proportion. 
 Marvin, p. 130. 
 
 The goods of the United States are liable to the same 
 rate of Salvage as those of individuals, and may be 
 arrested and proceeded against in like manner. United 
 States V. Wilder, 3 Sumner, 308. 
 
 If a vessel at sea be short-handed, by reason of sick- 
 ness, and be navigated into port by part of the crew of 
 another vessel, this is to be treated as a Salvage service. 
 Williamson Y. Brig Alphonso, 1 Curtis 0. C, 376. 
 
 If the vessel be fraudulently imperilled by the 
 master, this does not defeat the claim of the salvors, 
 unless they were parties to the fraud, or were cognizant 
 of it while it was going on, and did not interfere to 
 prevent it as far as they could, or endeavored to conceal 
 the master's misconduct and screen him from detection. 
 JBrevoor v. The Fair American, 1 Pet. Adm., 87, 95. 
 
 Compensation has been granted for keeping near a 
 vessel in distress, at the earnest request of her master 
 and crew, although but little aid were rendered. Allen 
 V. Ship Canada, Bee., 90. 
 
 If a vessel be stranded near her port of destination, 
 and it become necessary to tranship the cargo, this is 
 a salvage service. The Westminster, 1 W. Rob., 229. 
 
SALVAGE. 327 
 
 As a general rule, when two vessels come into 
 collision, they are bound to render assistance to each 
 other, if necessary ; and one aiding the other cannot 
 generally claim salvage, although the one assisted were 
 the cause of the accident. The Sappho, 1 Swabey, 
 Adm., 242. 
 
 A vessel is a derelict, in the sense of the maritime 
 law, when she is found at sea deserted, and has been 
 abandoned by the master and crew, without the hope 
 or intention of returning and resuming possession of her. 
 In like manner, goods abandoned at sea by the master 
 and crew, without the hope or intention of returning and 
 resuming the possession of them, as in case of jettison, 
 are derelicts. But where the master and crew leave the 
 vessel or goods temporarily, without any intention of a 
 final abandonment, but with the intent to return and re- 
 sume the possession, such vessel or goods are not consid- 
 ered as legal derelicts ; nor is the right of possession lost 
 by such temporary absence, although no individual may 
 be remaining on board the vessel or near the goods, for 
 the pm-pose of retaining the possession. The Bee, Ware, 
 339; The Aguila,lQ.^Rx)b.,Al; Howe v. Brig, 1 
 Mason, 373 ; The Elizabeth Sf Jane, Ware, 35 ; The 
 John Perkins, U. S. C. C. Mass., 21 Law Reporter, 87, 
 94 ; The Emulous, 1 Sum. 207. 
 
 The finder of a derelict who takes actual possession of 
 it, with an intention of saving it, gains a right of pos- 
 session which he can maintain against all persons, even 
 the true owner. He does not acquire the dominion or 
 absolute property. This remains in the owner ; for it is 
 presumed that the owner has not thrown away his pro- 
 
828 SALVAGE. 
 
 perty purposely, but has abandoned the possession mere- 
 ly through necessity. Nor has the master of a vessel 
 authority to give or throw away the owner's goods, so as 
 to divest him of his right of property, however great the 
 peril or distress may be. But the finder, taking the pos- 
 session left vacant, acquires the right of possession, and 
 becomes bound to preserve the property with good faith 
 and to bring it to a place of safety for the owner's use ; 
 and he acquires a right to be paid for his services a rea- 
 sonable and proper compensation out of the property it- 
 self. He is not bound to part with the possession until 
 this be paid, or the property be taken into the custody of 
 the law preparatory to the amount of Salvage being le- 
 gally ascertained. Should the salvors meet with the 
 master or owner, and he should tender his assistance in 
 saving and securing the property, this ought not without 
 good reason, to be refused, as this would be no bar to the 
 right of Salvage, and should it be unreasonably rejected, 
 it might materially affect the opinion of the court as to 
 the amount proper to be allowed, Marvin, Wreck Sf Sal- 
 vage, p. 137 ; The Bee, Ware, 339 ; The Amethyst, Da- 
 vies, 20. 
 
 Persons who have taken the actual possession of a de- 
 relict with the means and for the purpose of saving it, 
 do not lose their right of possession by temporarily leav- 
 ing it with an intention of returning and resuming the 
 actual possession. But their absence must be with an 
 intention of returning, and strictly temporary, and for a 
 justifiable cause, otherwise they will lose their right of 
 prior possession. The India, 1 W. Rob, 406 ; The Ame- 
 thyst, Davies, K 20 ; The schooner John Wurts, Olcott, 
 R. 462. 
 
SALVAGE. 329 
 
 Persons eng^aged in the enterprise of saving a derelict 
 are bound in good faith to act for the interests of the own- 
 er, as well as their own. G-enerally the interests of salvors 
 and owners will be the same ; that of conveying the 
 goods to a place of safety without loss and expense ; 
 but if it were otherwise, it would be a violation of good 
 faith for the salvors to look solely to the enhancing of 
 their reward at the expense of the owners. The golden 
 rule of dealing with others as we would have others deal 
 with us, is a principle of social duty deeply laid in mor- 
 als and in the constitution of human nature ; and in 
 these cases of providential calamity, it is a rule of law 
 as well as of morals. If they cannot, with their own 
 force, convey the property to a place of safety without 
 imminent risk of a total or material loss, they cannot, 
 consistently with their obligations to the owner, refuse 
 iL'o M:isiitance of other persons proffering their aid, nor 
 exclude them from rendering it, under the pretext that 
 they are the first finders, and had thus gained a right 
 to the exclusive possession. The Amethyst, Davies, R., 
 20. Nor can third persons lawfully intrude themselves 
 upon their possession nor divest them of it, nor gain the 
 right to be considered co-salvors, without their consent, 
 except under such circumstances of urgent necessity as 
 would make it the duty of the original salvors to accept 
 their assistance. The services of persons unjustifiably 
 intruding themselves enure to the benefit of the original 
 salvors. The Blenden Hall, 1 Dod., 414 ; The Eugene, 
 3 Hagg. 156 ; The Mary, 2 Wheaton, 123. And al- 
 though it may be the duty of salvors who have fallen 
 into circumstances of distress and peril themselves, to 
 
330 SALVAGE. 
 
 accept the proffered assistance of others, who may there- 
 by become co-salvors, yet such second salvors have no 
 right to make it a condition of rendering their services, 
 that the first shall abandon the enterprise, or give up 
 their right to be considered as salvors ; and any agree- 
 ment to that effect would be decreed, by the court, a 
 fraudulent advantage taken of their necessities, and ut- 
 terly void. In such cases of joint service, the first salv- 
 ors are to be considered as the principals, and the second 
 as auxiliaries, and the Salvage will be divided among 
 them according to their respective merits, Marvi/ds 
 Wreck ^ Salvage, p. 141 ; The Ewhanh, 1 Sumner, 
 400 ; The Eugene, 3 Ilagg. 156. 
 
 Where the first set of salvors is inefficient, or incom- 
 petent to perform the service, or they do not possess the 
 necessary facilities, of which the master or owner on 
 the spot must, of necessity, in the first instance, be the 
 judge, they may be lawfully discharged, and will be 
 paid by the court for the services they have rendered ; 
 and a second set may be rightfully employed. The 
 Glasgow Packet, 2 W. Rob, 307 ; The Dantzic Packet, 
 3 Hagg. 383. 
 
 Embezzlement by salvors, however small in amount, 
 whether at sea or in port, or after the goods are in the 
 custody of the law, produces a forfeiture of all Salvage. 
 In the John Perkins, 19 Law Reporter, 490, Ware, J. 
 said : " Salvors are bound not only to scrupulous ho- 
 nesty themselves, but while the property is in their cus- 
 tody, they are jointly required to employ every reason- 
 able degree of diligence to prevent it from plunderage 
 
SALVAGE. 831 
 
 by others. Any negligence in this respect, if not visit- 
 ed with an entire forfeiture of Salvage, will he remem- 
 bered in fixing the amount. 
 
 The law exacts good faith on the part of salvors. 
 Fraud committed against the master, owners or under- 
 writers, or collusion with the master to defraud the 
 owners or underwriters, will work a forfeiture of Sal- 
 vage. 
 
 Gross negligence or carelessness in rendering the ser- 
 vice or in the subsequent preservation of the property, 
 being a species of fraud, works a forfeiture of Salvage. 
 Where the salvors had got the ship off from one shoal 
 and were proceeding with her to a place of safety, but 
 got her upon another, through gross negligence in their 
 not attending to the course of the ship, it was held, that 
 the entire Salvage should be forfeited, notwithstanding 
 there was a licensed pilot on board directing her course. 
 It was held, that the salvor could not exonerate himself 
 from responsibility for his own inattention to the course 
 of the vessel, by shielding himself behind the pilot. 
 The Duke of Manchester, 2 W. Rob., 470 on appeal in 
 6 Moore, P. C. Rep., 90 ; The Neptune, 1 W. Rob., 298. 
 
 Good faith and fairness are required of salvors in the 
 manner of settling the Salvage. Where a person who 
 had an interest to enhance the amount of the Salvage, 
 which was known to the salvors, acted as the master's 
 consignee and adviser, and the Salvage was settled by 
 arbitration, notwithstanding there was an admiralty 
 court within a convenient distance that might have 
 been resorted to without injurious delay, and the sum 
 
332 SALVAGE. 
 
 awarded was larger than was just, the Supreme Court 
 of the United States held, that the circumstances afford- 
 ed evidence of an attempt, by imposition upon the mas- 
 ter or by collusion with him, to obtain a larger Salvage 
 than was just, and that such an attempt worked a for- 
 feiture of all Salvage. Houseman v. The N. Carolina, 
 15 Peters, S. C. R., 40. 
 
 As to the distribution of Salvage — where the salvors 
 are few, or the Salvage small, the court, oftentimes, in 
 pronouncing its decree for Salvage, awards a specific sum 
 to each salvor. But where the salvors are numerous, or 
 a considerable proportion of the value is allowed for Sal- 
 vage, the usual practice of the court, is, first to deter- 
 mine the whole amount, and .afterwards to distribute it 
 among the salvors, according to their respective merits. 
 The apportionment, like the amount, depends upon the 
 discretion of the court, guided more or less, by a few ge- 
 neral rules. Marvin^ s Wreck Sf Salvage, §229. 
 
 In apportioning the Salvage among the officers and 
 seamen, the master's share is usually, at least, double 
 the amount of the mate, on account of his superior res- 
 ponsibility, although the latter may have been put in 
 charge of the wreck ; and the mate is usually allowed 
 at least double the share of an ordinary seaman. The 
 seamen who navigate the derelict into port, have usu- 
 ally a larger sum, frequently double the amount allow- 
 ed those that remain on board their own vessels. The 
 Ewbanh, 1 Sumner, 429 ; The La Belle Creole, 1 Pe- 
 ters' Ad., Dec. 45; The Cato, ibid, 69; The Caroline, 
 2 W. Rob., 124. But these proportions are often varied 
 according to circumstances, so as to reward superior zeal, 
 
SALVAGE. 333 
 
 energy and gallantry, and to discourage indifference and 
 selfishness. 
 
 The owner of cargo on board the salvor ship, is not 
 entitled to share in the Salvage on the ground of the ex- 
 posure of his property to peril, nor on the ground of the 
 loss of insurance by the deviation, unless he have express- 
 ly assented thereto, and thereby released the ship-owner 
 from his responsibility. The Nathaniel Hooper, 3 Sum- 
 ner, 577 ; The brig Cora, 2 Peters, Ad. Dec. 361 ; The 
 Blaireau, 2 Cranch, 240. 
 
 The case of The Blaireau, 2 Cranch, 240, is a leading 
 case on the subject of apportionments. It was a case of 
 a derelict which had been navigated some two thous- 
 and miles by the salvor crew, put on board from the ship 
 Firm. The court allowed the owners of the Firm one- 
 third ; the residue was divided among the salvors so as 
 to give fifty per cent, more to the persons who naviga- 
 ted the wreck than to those who remained on board their 
 own vessel, on account of the greater danger encoun- 
 tered by the former. The share of the master was for- 
 feited on account of embezzlement, and the share of the 
 mate was reduced to that of a common seaman on ac- 
 count of his neglect in taking care of the property. Two 
 apprentices and a slave were allowed half as much as 
 the common seamen — ^the shares of the apprentices be- 
 ing paid to themselves, and the share of the slave to his 
 master. The cases of The Henry Ewbank, (1 Sumner, 
 400) and Nathaniel Hooper, 3 Sumner, 577, are lead- 
 ing cases. 
 
 The officers and crew of our national vessels are so far 
 bound to rescue a vessel from mutineers, that they are 
 
3S4' SALVAGE. 
 
 not entitled to claim Salvage for such a service, unless 
 perhaps where they incur great personal danger and use 
 great exertions in the performance of the service. The 
 Francis and Eliza, 2 Dods, 115 ; United States v. The 
 Amistad, 15 Peters, 518. But for an ordinary Salvage 
 service they are clearly entitled to compensation. ~ But 
 as their time and the property which they subject to risk 
 belong to the government, their compensation is less 
 than it would otherwise be ; and the government is al- 
 lowed for the pay, victualing, and wear and tear of the 
 ship, while employed in the Salvage service. The Clif- 
 ton, 3 Hagg.Adm, 117 ; The Rapid, 3 Hagg. 419; The 
 Thetis, 3 Hagg.Adm., 14. 
 
 Under ordinary circumstances, the owners of the sav- 
 ing ship have one-third of the amount decreed, and may 
 have more if the Salvage service expose their ship to 
 peculiar danger. The Henry Ewbanh, 1 Sumner, 400 ; 
 The schr. Boston, 1 Sumner, 328. In the following 
 cases one half of the amount decreed has been allowed 
 the owners — The Columbia, 3 Hagg, Adm., 428; The 
 Martha, 3 Hagg. 434 ; The Waterloo, 2 Dodds, 433 ; 
 The Uising Sun, Ware, 378, 385 ; Taylor v. ship Cato, 
 1 Pet. Adm. 48, 68. In The Nicolina, 2 W. Rob, 175, 
 one-fifth was allowed. In The Hope, 3 Hagg, Adm., 
 423, about two-fifths ; and in Smith v. The Stewart, 
 Crabbe, 218, one-thirteenth. 
 
 In cases of Salvage, the salvors themselves are admit- 
 ted as witnesses in their own behalf, from necessity, as 
 "they are often the only persons who have any knowledge 
 of the circumstances. The Elizabeth Sr Jane, Ware, 35. 
 But this necessity, from which their competency arises, 
 
SALVAGE. 3S5 
 
 limits that competency, and they are not admissible as 
 "witnesses for themselves, or for each other, to entirely 
 independent facts which can be proved by other testi- 
 mony. The Boston, 1 Sumner, 328 ; The Henry Ew- 
 hank, 1 Sumner, 400. 
 
CHAPTER VII. 
 
 COLLISION. 
 
 There are four possiMlities under which an accident 
 of this sort may occur : 
 
 1st — It may happen without blamfe being imputable 
 to either party ; as where the loss is occasioned by a 
 storm or any other vis major. In that case, the misfor- 
 tune must be borne by the party on whom it happens to 
 light ; the other not being responsible to him in any 
 •degree Stainbach t. Roe, 14 Howard's R., 532. 
 
 2d — A misfortune of this kind may arise, where both 
 parties are to blame ; where there has been a want of 
 due diligence or of skill on both sides. In such case, 
 the rule of law is, that the loss may be apportioned bcr 
 tween them, as having been occasioned by the fault of 
 both of them. Schooner Catherine v. Dickinson, 17 
 Howard R., 170. 
 
 3d — It may happen by the misconduct of the suffer- 
 ing party, and then the rule is that the sufferer must 
 bear his own burden. 
 
 4th — It may have been the fault of the ship which 
 ran the other down ; and in this case, the injured party 
 would be entitled to an entire compensation from the 
 other. 
 
COLLISION. 837 
 
 There are certain nautical rules by which in most cas- 
 es, the question of negligence is decided. Thus, if a 
 vessel be going close-hauled to the wind, and another 
 meeting her be going free, the rule of the sea is, for the 
 latter vessel to go to the leeward ; and although such 
 vessel may go either to the leeward or windward, as she 
 best can, yet she ought, as a general rule, to suppose 
 that the vessel going to the windward will keep her po- 
 sition. If two vessels be beating to windward on op- 
 posite tacks, it is the duty of the vessel on the starboard 
 tack to continue her course, and that on the larboard to 
 give way ; and when both vessels have the wind large 
 or abeam, and meet, they should pass each other on the 
 larboard hand, to effect which the helm must be put to 
 port. 
 
 If a vessel have, by no voluntary action on her part, 
 contributed to the Collision, as where she is thrown 
 against another vessel by the swell caused by a passing 
 steamer, she is not liable. Kissam v. The Albert, U. S. 
 D. C, N. Y., AprU, 1858. 21 Law Reporter, 41. So, 
 where one vessel runs into another and causes it to come 
 into Collision with a third vessel, the second is not lia- 
 ble to the third if damage ensue, if it were not otherwise 
 to blame. The Moxey, Abbot, Adm., 73. 
 
 If the cargo be injured by Collision through any fault 
 of the master, the shipper has an undoubted claim. If 
 the Collision occurred from the irresistible force of tide 
 or storm, the ship is excused, because the loss was occa- 
 sioned by a peril of the sea. Butler v. Fisher, 3 Esp., 
 67. But if the Collision occurred wholly through the 
 fault of another vessel and most unnecessarily, but with- 
 22 
 
338 COLLISION. 4 
 
 out any fault on the part of the ship which contains the 
 damaged cargo, then the ship is not excused, whether 
 there he a bill of lading or not, such Collision heing nei- 
 ther an act of God, or " a peril of the sea." Marsh v. 
 Blythe, 1 McCord, 360. And if neither party be to blame, 
 the defendant is liable if no bill of lading be given, be- 
 cause such Collision would be neither an act of God nor 
 of the public enemy. In Plaisted v. Boston Sf Kenne- 
 bec Steam Nav. Co., 27 Maine, 132, no bill of lading 
 was given. The goods were damaged by Collision. No 
 fault was imputable to either party, but as it was not 
 caused by an act of God, or an inevitable accident, the 
 defendants were held liable. But the court said that 
 they would have been discharged, if a bill of lading had 
 been given with an exception against perils of the sea. 
 See also Steamboat New Jersey, Olcott, Adm.,444. 
 
 As between an underwriter and the insured owner of 
 a ship, the former will be answerable for a loss' by a Col- 
 lision, although caused by the negligence of th^^master 
 or crew, because it is considered, as a peril of the sea; 
 but a Collision so occurring will not exempt the owner 
 of the vessel from being liable to the shipper of goods 
 for damage caused to them thereby. Clapp v. Young, 
 TJ. S. D. C. Mass., 6 Law Rep., Ill ; Bulloch y. Steam- 
 boat Lamar, U. S. C. C, Georgia, 8 Law Reporter, 275 ; . 
 Waring v. Clarke, 5 Howard S. 0. R. 441, 465. 
 
 As to the necessity of vessels exhibiting a light. It 
 seems to be a general rule of the maritime law that a 
 vessel lying in the common passage-way of a port or 
 river, though she have a right to be there, from necessi- 
 ty, or otherwise, is bound to exhibit a light conspiou- 
 
COLLISION. 339 
 
 ously in the night time. In reference to the rule requir- 
 ing lights to he hung out in dark nights, it was said in 
 Garsly v. White, 21 Pick., 254, that there was no gen- 
 eral and ahsolute usage on the subject, and that the 
 omission of the light might, or might not, be a fatal ne- 
 gligence, according to circumstances. But the Chiel 
 Justice of Pennsylvania, in Simpson v. Hand, 6 Whart., 
 324, more justly considered that the hoisting of a light 
 in a river or harbor at night, amid an active commerce, 
 was a precaution imperiously demanded by prudence, 
 and he did not see how the omission of it could be con- 
 sidered otherwise than a negligence per se. Vessels 
 when under way, as well as when at anchor, should 
 have a sufficient watch or look-out on deck. 
 
 As steamers can go almost equally well in one direc- 
 "tion as in another, they are considered as vessels with a 
 free wind. They have great power and speed, and are 
 always obliged to observe a great degree of caution, par- 
 ticulajiy at night. They must be very watchful as to 
 their speed and course. In regard to the former, it is a 
 question of fact in each particular case, whether the 
 speed was excessive or not ; and in determining this, 
 the locality and hour, the state of the weather, and all 
 circumstances of a similar nature, are to be fully consi- 
 dered. McCready v. Goldsmith, 18 Howard, 89 ; 
 Steamboat New York v. Rae, 18 Howard, 223 ; Rogers 
 V. Steamer St. Charles, 19 Howard, 108. If a steam- 
 boat, in consequence of excessive speed, raise so great 
 a swell that a vessel is sunk thereby, the owners are li- 
 able. Smith V. Bobson, 3 Man & G., 59. In respect to 
 a look-out, it is not enough that a person be stationed in 
 
340 COLLISION. 
 
 the pilot house for that purpose, but a vigilant watch 
 should be stationed in the forward part of the steamer, 
 so situated as to be able to discern vessels at the earli- 
 est moment. St. John v. Paine, 10 Howard, 567, 585 ; 
 Newton v. Stebbins, 10 Howard, 586 ; The Propeller 
 Genesee Chiefs. Fitzhugh, 12 Howard,- 443. 
 
 In general, established rules and known usages should 
 be carefully followed ; for every vessel has a right to 
 expect that every other vessel will regard them ; but not 
 where they would, from peculiar circumstances, cer- 
 tainly cause danger, as a vessel near a rock or shore 
 must strike it by putting her helm to port, which the 
 general rule might require ; and no vessel is justified by 
 a pertinacious adherence to a rule, for getting into Col- 
 lision with a ship which she might have avoided. Al- 
 len V. Mackay, U. S. D. C, Mass., 1853. In The Com. 
 merce, 3 W. Eob., 287, it was held that where there is 
 a probability of a Collision, a vessel, on the larboard tack 
 and close-hauled, is not justified in pertinaciously keep- 
 ing on her course, although the vessel she meet be on the 
 starboard tack', and with the wind free. Where practi- 
 cable, she is bound to take the necessary precautions for 
 avoiding the Collision, although the other vessel be act- 
 ing wrongfully in not giving way in time. 
 
 In measuring damages in a case of Collision, all the 
 direct and immediate consequences are to be taken into 
 consideration ; as loss of freight, detention, expense and 
 the like. The Gazelle, 2 W. Rob., 279, 284. 
 
 The rule in insurance, of deducting one-third new for 
 old, does not apply to a claim against the vessel doing 
 damage, The" owner is entitled to recover from the ship 
 
COLLISION. 841 
 
 in fault, his repairs in full. Williamson v. Barrett, 13 
 Howard, 101, 110. 
 
 The assured has a lawful right to compensation for the 
 use of his vessel when detained to repair damages caus- 
 ed by Collision. Williamson v. Barrett, 13 Howard, 
 101, 111 ; 1 Caines, 573. 
 
 Though not recited by name in the body of the policy, 
 damage by Collision is a frequent source of claim on un- 
 derwriters. It is one of the many casualties included in 
 " all other perils, losses and misfortunes" that may come 
 to the hurt of the ship. The usual and common instan- 
 ces of Collision are obviously produced by causes, which 
 are most certainly among the perils of the sea. They 
 are the winds, waves, currents or tides. And so far as 
 these cause a Collision, there can be no question of the 
 liability of the insurer. But where a Collision is caused 
 in part only by the extraordinary violence or unexpect- 
 ed operation of the wind or water, and in part by the 
 negligence of the master and the crew, the question 
 might arise, how far the insurers were responsible. And 
 this question would seem to be still more difficult, when 
 there is no extraordinary or unusual action of wind or 
 sea, and none which might not have been, and should 
 not have been anticipated and prepared for, and the Col- 
 lision took place because the master and. crew were 
 wholly wanting in skill or care. And the case some- 
 times occurs, where the Collision is purposely caused by 
 the master or crew, and is to be attributed exclusively 
 to their intention and act. 
 
 Although the insurers do not insure the ship-owners 
 against negligence on the part of the master and crew. 
 
842 COLLISION. 
 
 they are liable for damage caused by a peril of the sea, 
 though that peril be put into operation by the negli- 
 gence of those in charge of the vessel. General Mutu- 
 al Ins. Co. V. Sherwood, 14 Howard, 351 ; Nelson v. 
 Suffolk Ins. Co., 8 Gushing, 477. 
 
 In General Mutual Ins. Co. v. Sherwood, it was held, 
 that, damages decreed by a court of admiralty to he a 
 lien on the vessel insured, by reason of a Collision pro- 
 duced by the negligence of those who navigated that ves- 
 sel, cannot be recovered, under a policy insuring against 
 the usual perils and including barratry. In this case the 
 argument of counsel for the assured was, " that Collision 
 being a peril of the sea, the negligence which caused 
 that peril to occur is not inquired into ; it lies behind 
 the peril and is too remote." Curtis, J. delivering the 
 opinion of the court, said : " This is true when the loss 
 was inflicted by Collision, or was by law a necessary 
 consequence of it. The underwriter cannot set up the 
 negligence of the servants of the assured as a defence. 
 But where the expense is attached to the vessel insured, 
 not solely in conseqence of a peril, but in consequence of 
 the misconduct of the servants of the assured, the peril 
 per se is not the efficient cause of the loss, and cannot, in 
 any just sense, be considered its proximate cause. In 
 such a case the real cause is the negligence, and unless 
 the policy can be so interpreted as to insure against all 
 losses directly referable to the negligence of the master 
 and mariners, such a loss is not covered by the policy. 
 We are of opinion that the policy cannot be so constru- 
 ed. When a peril of the sea is the proximate cause of a 
 loss, the negligence which caused that peril is not in- 
 
COLLISION. 848 
 
 quired into ; not because the underwriter has taken up- 
 on himself all risks arising from negligence, but because 
 he has assumed to indemnify the assured against losses 
 from particular perils, and the assured has not warrant- 
 ed that his servants will use due care to avoid them." 
 
 " These views are sustained by many authorities. Mr. 
 Arnould, in his valuable Treatise on Insurance, vol. 2, 
 775, lays down the correct rule : ' Where the loss is not 
 proximately caused by the perils of the sea, bvit is di- 
 rectly referable to the negligence or misconduct of the 
 master or other agents of the assured, not am.ounting to 
 barratry, there seems little doubt that the underwriters 
 would be thereby discharged.' To this rule must be re- 
 ferred that class of cases, in which the misconduct of 
 the master or mariners has either aggravated the conse- 
 quence of a peril insured against, or been of itself the 
 efficient cause of the whole loss. Thus if damage be 
 done by a peril insured against, and the master neglect 
 to repair that damage, and in consequence of the want 
 of such repairs, the vessel be lost, the neglect to make 
 repairs, and not the sea-damage, has been treated as 
 the proximate cause of the loss. In the case of Cope- 
 land V. the N. E. Marine Ins. Co., 2 Metcalf, 432. 
 Shaw, J. reviews many of the cases, and states that 
 ' the actual cause of the loss is the want of repair, for 
 which the assured are responsible, and not the sea-dam- 
 age which caused the want of repair, for which it is ad- 
 mitted the underwriters are responsible.' And the same 
 principles were applied by Story, J. in the case of Haz- 
 ard V. N. E. Marine Ins. Co. 1 Sumner's Rep., 218, 
 where the loss was by worms, which got access to the 
 
344 ' COLLISION. 
 
 vessel in consequSioe of her bottom being injured by 
 stranding, which injury the master neglected to repair. 
 So' where a vessel has been lost or disabled, and the 
 cargo saved, a loss caused by the neglect of the master 
 to tranship or repair his vessel and carry the cargo, can- 
 not be recovered. Schiejfelinv. N. Y. Ins. Co., 9 Johns, 
 21 ; Bradhurst v. Col. Ins. Co. 9 Johns, 17 ; Am. Ins. 
 Co. V. Centre, 4 Wend., 45 ; S. C. 7 Cow., 564 ; McGaw 
 V. Ocean Ins. Co., 23 Pick., 405 ; Robinson v. Jones, 8 
 Mass., 536 ; Cleveland v. Union Ins. Co , 8 Mass., 308 ; 
 in these and many other similar oases, the courts, hav- 
 ing found the efficient cause of the loss to be some neg- 
 lect of duty by the master, have held the underwriter 
 discharged. Yet it is obvious that in all such cases, one 
 of the perils insured against, fell on the vessel, and they 
 are to be reconciled with the other rule, that a loss caus- 
 ed by a peril of the sea is to be borne by the underwri- 
 ter, though the master did not use due care to avoid the 
 peril, by bearing in mind, that in these cases, it is negli- 
 gence, and not simply a peril of the sea, which is the 
 operative cause of loss. It may sometimes be difficult 
 to trace this distinction, and mistakes have doubtless 
 been made in applying it, but it is one of no small im- 
 portance in the law of insurance, and cannot be disre- 
 garded without producing confusion. The two rules are 
 in themselves consistent. Indeed they are but applica- 
 tions, to different cases, of the maxim causa proxima 
 no7i remota spectatur. In applying this maxim, look- 
 ing for the proximate cause of the loss, if it be found to 
 be a peril of the sea, we inquire no further ; we do not 
 look for the cause of the peril. But if the peril of the sea 
 
COLMSlONi 845 
 
 which operated in a given case, were not of itself suffi- 
 cient to occasion, and did not in and by itself occasion 
 the loss claimed, if it depended upon the cause of that 
 perU whether the loss claimed would follow it, and 
 therefore a particular cause of the peril he essential to be 
 shown by the assured, then we must look beyond the 
 peril to its cause, to ascertain the efficient cause of the 
 loss." 
 
 " The case at bar presents an illustration of both rules, 
 so far as the brig Emily (the vessel insured) was herself 
 injured by the Collision, the cause of loss was the Colli- 
 sion, which was a peril insured against, and the assur- 
 ed, showing that his vessel suffered damage from that 
 cause, makes a case, and is entitled to recover. But he 
 claims to recover not only for the damages done to his 
 vessel, which was insured, but for damages done to the 
 ctlier vessel, not insured. To entitle himself to recover 
 these, he must show not only that they were suffered by 
 a peril of the sea but that the underwriter is responsible 
 for the consequences of that peril falling on a vessel not 
 insured. It is this responsibility which is the sole basis 
 of his claim, and to make out this responsibility he does 
 not, and cannot, rest upon the occurrence of a Collision ; 
 this affords no ground for this claim ; he must show a 
 particular cause for that Collision ; and aver, that by rea- 
 son of the existence of that cause, the loss was suflfered 
 by him, and so the underwriter became responsible 
 for it." 
 
 " This negligence is therefore, the fact without which 
 the loss would not have been suffered by the plaintiff, 
 and by its operation the loss is suffered by him. In the 
 
846 COLLISION. 
 
 strictest sense it causes the loss to the plaintiff. The 
 loss of the owners of the " Virginian," was occasioned 
 by a peril of the sea, by which the vessel was injured. 
 But nothing connects the plaintiff with that loss, or 
 makes it his, except the negligence of his servants. Of 
 his loss, this negligence is the only efficient cause, and 
 in the sense of the law it is the proximate cause." 
 
 As to the question, whether the undenvriters on one 
 vessel be liable to damage done to another vessel, not in- 
 sured by the policy, by a Collision caused by the negli- 
 gence of those on board the vessel insured, Judge Cur- 
 tis continued, "the ablest writers of the continent of 
 Europe, on the subject of insurance law, have distinctly 
 declared that in case of damage to another vessel solely 
 through the fault of the master or mariners of the insur- 
 ed vessel, the damage must be repaired by him who oc- 
 casioned it, and the insurer is not liable for it. Pothier 
 Traite d' Assurance, No. 49, 50 ; Boucher, 1500, 1501, 
 1502 ; 4 Boulay Paty, Droit Maritime, ed. of 1823, 14, 
 16 ; Santayras^ Com. 7, 223 ; Emerigon, by Meredith, 
 337. If the law of England be to be considered settled 
 by the case of De Vaux\. Salvador, 4 Ad. & El., 420, it 
 is clear such a loss could not be recovered there. Mr. 
 Marshall is evidently of opinion that unless.the miscon- 
 duct of the master and crew amounted to barratry, the 
 loss could not be recovered. Marsh on Ins., 495. And 
 Mr. Phillips so states in terms, 1 Phillips, 636. It has 
 been urged that, in case of The Paragon, 14 Peters, 99, 
 this court adopted a rule which if applied to the case at 
 the bar, would entitle the assured to recover. But we 
 do not so consider it. It was there determined that a 
 
COLLISION. 847 
 
 Collision without fault was the proximate cause of that 
 loss. Indeed, unless the operation of law, which fixed 
 the lien, could be regarded as the cause of that loss, 
 there was no cause but the Collision, and that was a 
 peril insured against. We are aware that in the case 
 of Hale V. Washington Ins. Co., 2 Story, 176; Story, 
 J. took a difierent view of this questipn ; and we are 
 informed that the Supreme Court of Massachusetts has 
 recently decided a case in conformity with this opinion, 
 which is not yet in print, and which we have not been 
 able to see. But with great respect for that very emi- 
 nent Judge, and for that learned and able Court, we think 
 the rule we adopt is more in conformity with sound 
 principle as well as with the practical interpretation of 
 the contract by underwriters and merchants ; and that 
 it is the safer and more expedient rule. We cannot 
 d^tibl tuat the knowledge by owners, masters and sea- 
 men, that underwriters were responsible for all the dam- 
 age done by Collision with other vessels through their 
 negligence, would tend to relax their vigilance and ma- 
 terially enhance the perils, both to life and property, 
 arising from this case." This decision was rendered 
 during the December term of the Supreme Court, 1852. 
 In Massachusetts, in the case referred to by Judge 
 Curtis, in the opinion we have just cited, it was decided 
 by the Supreme Court of that State {Nelson Sf others v. 
 Suffolk Ins. Co., 8 Cushing, 477), in October term, 1851, 
 that the underwriters are liable for the whole loss, con- 
 sisting.' of both of these items, because the whole loss is 
 caused by Collision, and that is a peril insured against. 
 The Court of Appeals of New York {Matthews v. How- 
 
848 coLtisioN. 
 
 ard Ins. Co., 1 Kern, 9), overruling a decision in the 
 Supreme Court of that state {Matthews v. Howard Ins. 
 Co., 13 Barb. 234), held that the insurers are liable only 
 for the damage sustained by the vessel insured, if the 
 Collision be caused by the fault of the officers and crew 
 of that vessel ; and are not liable for the compensation 
 due from it for %e injury inflicted upon the other ves- 
 sel. The principle which governs this case is, that the 
 proximate cause only is to be regarded, and the remote 
 cause disregarded. And, while the law will hold the 
 insurers of the ship in fault liable for the injury imme- 
 diately caused to the insured by the negligence of their 
 servants it does not pursue the chain of effects, and hold 
 these insurers liable to the owners for the money, which 
 a rule of admiralty, or of the law of shipping, requires 
 them to pay to others for the damage their servants do 
 them. 
 
 Mr. Parsons, in his valuable treatise on Maritime law, 
 commenting on these decisions says : " We think, that 
 the decision of the Supreme Court of the United States 
 rests upon the better reason, and a just application of 
 indisputable principles. But a similar application of 
 the same principles, would require the court to aban- 
 don the ground formerly taken by them in another case. 
 That was a case of Collision in the river Elbe, where the 
 vessel insured, without default, came into Collision with 
 another vessel. By a law of Hamburg, which governed 
 the place where the Collision took place, the loss, when 
 there was no fault, was divided between the two ships ; 
 instead of resting where it fell, as it does by the com- 
 mon law, and the law merchant generally. Mr. Justice 
 
COLLISION. 849 
 
 Story held, that the insurers of the ship were obliged to 
 pay, not only for what she herself suffered, but for all 
 the money awarded to the other ship, by the law requir- 
 ing a division of the loss {Peters v. Warren Ins. Co. 3 
 Sumner, 389). And the Supreme Court unanimously 
 affirmed his decision {Peters v. Warren Ins. Co,, 14 
 Peters' S. C. R. 99)." 
 
 " Two years before the trial of this case before Mr Jus- 
 tice Story, the very same question came before the 
 King's bench in England, Lord Denman presiding, in 
 reference to a ship injured without fault, by Collision in 
 the river Hoogly, and compelled by a similar law of 
 Calcutta, to pay for a part of the injury sustained by 
 the other vessel. The English court held, that this part 
 of the loss was too remote ; and that the insurers should 
 pay only for the injury sustained by the vessel insured. 
 Be Vaux V. Salvador, 4 A. & E., 420." 
 
 " We think this last a just decision ; and are quite 
 sure, that the same principles which were acknowledg- 
 ed and applied by the Supreme Court of the United 
 States, in General Mutual Ins. Co. v. Sherwood (14 
 Howard, 351), and by the New York Court of Appeals 
 in Matthew v. Howard Ins. Co. (1 Kern., 9), would 
 lead directly and necessarily to the conclusion to which 
 the English court came in De Vaux v. Salvador (4 
 A. & E. 420), although a distinction has been pointed 
 out between these cases." 2 Parsons, 228. 
 
 The question is generally settled by the underwriters, 
 providing in their policies, whether they shall or shall 
 not be liable for such a loss. The underwriters of Boston 
 have introduced the followinp- clause into their policies ; 
 
350 COLLISION. 
 
 " This company agrees to cover the risk of loss by Col- 
 lision, according to the decisions of the courts of Massa- 
 chusetts prior to 1853 ; provided that the company shall 
 not in any case be liable for a greater sum than the 
 amount insured by this policy on ship and freight." 
 This clause however is introduced only when the assur- 
 ed pays an additional premium therefor, say, of one per 
 cent. When this extra premium is not paid, this clause 
 is erased, and the following substituted : " It is under- 
 stood, that this company is not in any case to be liable 
 for damage to another vessel or her cargo by Collision 
 with the vessel hereby insured." 
 
 In cases of Collision, the first remedy of the owner is 
 against his underwriters if he choose to take it, and he 
 may afterwards at the request, and on behalf of the in- 
 surers take proceedings against the vessel by which his 
 own was injured. What he recovers is for the benefit of 
 his underwriters. But if they have paid his claim, de- 
 ducting the usual third from repairs, and he afterwards 
 recover from the other ship his repairs in full, it is not 
 usual to return more to the insurers than suffices to wipe 
 off" the sum they settled and any law expenses after- 
 wards incurred, and he will be allowed to retain the rest 
 on his own account. As in nearly all these cases, a 
 settlement by the other vessel is preferable to a settle- 
 ment by underwriters, for among other advantages the 
 thirds are saved, an owner often elects to take his re- 
 medy in the first instance against the colliding ship. 
 And if he appear as plaintiff in an action against the 
 other ship, his right of recovery from the underwriters 
 is not defeated. This is provided for by the policy it- 
 
COLLISION. S51 
 
 self, which states : "And in case of any loss or misfor- 
 tune, it shall be lawful for the assured to sue, labor and 
 travel for &c., without prejudice to this insurance, to the 
 charges whereof the underwriters will contribute &o." 
 However, before taking legal proceedings in a Collision 
 case, it is advisable to first obtain the sanction of the 
 underwriters, otherwise, in case of defeat, it is question- 
 able whether the underwriters would be liable for any 
 part of the court expenses, and we doubt very much 
 whether they are legally liable for the expenses any 
 how, unless their consent be first obtained. And, but for 
 the clause in the policy, to which we have referred, we 
 think the assured having elected to take his remedy 
 against the colliding ship, and having gained his suit, 
 he is barred from any further claim for indemnity from 
 his underwriters. But, we think it would be manifest- 
 ly against the interest of the underwriter to take advan- 
 tage of the steps which a master or owner makes for his 
 benefit, and endeavor to escape from liability on the po- 
 licy ; such a coiurse would tend to prevent the assured 
 from doing what is in his power, to protect the under- 
 writer's interest as against third persons — feeling that 
 he could always recover on his policy, he would take no 
 steps that might prejudice his own rights, but would 
 leave the underwriters to look after their own interests 
 themselves. There are many things which a master or 
 owner, from his position, can know, or do, which the 
 underwriter is ignorant or incapable of; and, therefore, 
 it becomes the incumbent duty of the former to act so 
 that the insurers may not be put to unnecessary loss. 
 And when this is done, in good faith, we think the un- 
 
852 , COLLISION. 
 
 derwriters are equitably bound to indemnify the assur- 
 ed for the expenses he may have incurred. 
 
 In cases of Collision, when the amount of the damage 
 is ascertained by a proceeding in rem, the lien of damage 
 to the extent of the value of the vessel takes priority of 
 all other liens. Hence, if the guilty ship be sufficient to 
 meet all demands, the lien of damage must be first sat- 
 isfied. But wh^e the guilty vessel has been repaired 
 after the Collision, by means of a bottomry bond, the 
 lien of damage does not extend. 
 
CHAPTEE Vm. 
 
 GENERAL POWERS AND DUTIES OF THE MASTER. 
 
 The master of a ship holds a highly responsible posi- 
 tion. There is probably no person more liable to be 
 placed in situations of difficulty and of danger, situa- 
 tions requiring caution, self-dependence and integrity. 
 Cases are constantly arising in which he must act 
 promptly for the good of all concerned, and that, too, 
 without having the aid of precedents to guide his decis- 
 ion. He requires, therefore, a soimd and matured judg- 
 ment, and should be well acquainted with maritime 
 laws, usages and customs. In a case of necessity, or of 
 unexpected and pressing calamity, happening in the 
 course of the voyage, the master is by law created an 
 agent from necessity, for the benefit of all concerned ; 
 and what he fairly and reasonably does, under such cir- 
 cumstances, in the exercise of a sound discretion, gene- 
 rally binds all the parties in interest in the voyage, 
 whether owners or shippers or underwriters. Jordan 
 V. Warren Ins. Co., 1 Story, 353. As the owner is 
 bound, in order that his ship may be seaworthy, to put 
 in command of her a master who is fully competent in 
 23 
 
354 POWERS AND DUTIES OF THE MASTER. 
 
 respect of skill, care and honesty, so the master is bound 
 to all whose interests are under his charge, as owners of 
 the ship, or hirers of it, or as owners of the goods, or even 
 as insurers of the ship, goods or freight, to use proper 
 care and skill, and entire integrity in the protection 
 and preservation of their interests. It is impossible to 
 define all his duties, or state them in detail. Some of 
 them, and some of the most important among them, 
 arise on extraordinary occasions only ; and must be 
 measured and defined by the circumstances of each case, 
 and the exigencies which it presents. There are some 
 general principles of law and usage, however, a knowl- 
 edge of which may aid him in determining what he 
 ought to do in certain emergencies, for the protection 
 and advancement of the general interest, and these we 
 will endeavor to state for his guidance. 
 
 The great object which the master is bound to keep 
 in view, with respect to the cargo, is its safe and speedy 
 conveyance to its destined port. In general, the master is 
 a stranger to the cargo, any further than he is concern- 
 ed in its safe custody and conveyance. But in case of 
 unforeseen and unprovided for necessity, the character of 
 agent and supercargo is forced upon him by the general 
 policy of the law. If the ship have put into a port of ne- 
 cessity in distress, and need repairs to enable her to pur- 
 sue her voyage, the master is bound to take the most 
 prompt measures to hasten forward the cargo. But in 
 this he is not entirely to lose sight of the interests of the 
 ship-owner. His duty is, first, to repair the ship, if 
 practicable. If the ship cannot be repaired in season to 
 carry on the cargo, or be so disabled as not to be worth 
 
POWERS AND DUTIES OF THE MASTER. - 855 
 
 repair, then his duty towards the cargo is first to tran- 
 ship it, and send it on by another vessel, if one can be 
 found in that or a neighboring port. If no such vessel 
 can be procured, or not without an expense totally dis- 
 proportioned to the advantages expected to be derived 
 from sending the goods forward, then he may store them, 
 or if they be of a perishable nature, he is bound to sell 
 them. If, however the vessel be capable of repair with- 
 in a reasonable time, he must repair, if the necessary 
 funds can be procured. 
 
 The master must, we repeat, bear in mind, that he has 
 been entrusted with the cargo, for the purpose of con- 
 veying it to its place of destination, and this purpose he 
 is bound to accomplish by every reasonable and practi- 
 cable method. Where a part only of the cargo is saved, 
 or the whole is materially damaged, the duty of tran- 
 shipment may depend, in part, upon the quantity sav- 
 ed, and the additional damage to which the goods would 
 be liable by being reshipped and carried on in their da- 
 maged condition. In case of transhipment, the shipper 
 is bound to pay the extra freight for the renewed voy- 
 age, which the master pays for the hire of the vessel 
 which he procures. But the master is not justified in 
 transhipping the cargo, if his own vessel can be repair- 
 ed at a reasonable expense and in reasonable time, and 
 if he do tranship it in such case, the insurers on the 
 cargo will be discharged. 
 
 Though the underwriter upon freight will not be 
 liable for a loss of freight, unless the delivery of the 
 goods be prevented by a peril insured against, and 
 though the shipper will not be liable to pay freight, 
 
356 POWERS AND DUTIES OF THE MASTEE. 
 
 unless the goods be delivered at the port of destination, 
 or he voluntarily accept them short of that port, yet 
 where the goods are so much injured that, though capa- 
 ble of being carried to their port of destination and there 
 landed, they will endanger the safety as well of the ship 
 as of the goods, or the goods will become perfectly 
 worthless on arrival at the port of destination, it is the 
 duty of the master, exercising a sound discretion, for 
 the benefit of all concerned, and especially for the ship- 
 pers of the cargo, to sell the same at the port where the 
 necessity arises. But, in general, it is his duty to carry 
 the cargo to its port of destination, if the goods can there 
 be delivered in a merchantable though damaged state. 
 Jordan v. Warren Ins. Co., 1 Story, 343. 
 
 Previous to a sale of goods on the ground of their be- 
 ing in a perishable condition, the master should have 
 them surveyed, and their condition reported by compe- 
 tent persons. And where there is an agent of the un- 
 derwriters resident, the master should call him in to 
 assist and advise. Though the recommendation of a 
 sale by surveyors, or even by the underwriter's agent, 
 will not justify the master in making it, where the facts 
 themselves do not justify him, a survey, nevertheless, 
 secures witnesses to the facts, and is usually looked for 
 and expected by the parties interested. And the con- 
 sultation with, and approval of, the underwriter's agent, 
 will go far towards reconciling his acts to the minds of 
 both shippers and underwriters. 
 
 If the ship cannot be repaired, or another procured, if 
 the cargo be not perishable, it is the duty of the master, 
 ordinarily, not to sell the cargo, but to store it, and a- 
 
POWERS AND DUTIES OF THE MASTER. 357 
 
 wait the orders of the shippers or underwriterf?, who 
 ought to be consTilted without delay. Where a vessel 
 was stranded on the coast of Virginia, and the cargo 
 was landed without damage, and was not of a perisha- 
 ble nature, and might have been kept in reasonable 
 safety until the owners and insurers who lived in Mas- 
 sachusetts, could be heard from, it was held, that the 
 master had no authority to sell the cargo without wait- 
 ing until the owners and insurers could be consulted. 
 Bryant v. Com. Ins. Co., 13 Pickering's R., 543. And 
 where a vessel, laden with fruit and wine, bound to 
 Philadelphia, put into Bermuda, where, upon a survey, 
 the fruit was found to have been wet and damaged, and 
 to be in a perishable condition, the vessel being con- 
 demned and sold, and the master having afterwards 
 sold the cargo, it was held, that the sale of the fruit was 
 rightful, but the sale of the wine was wrongful. " The 
 port of Bermuda," says the court, " was near to the 
 United States, and the means of communication with 
 the consignees and the other parties interested, were 
 easy and capable of being accomplished in a brief space 
 of time." Pope v. NicTcerson, 3 Story, 465. 
 
 The master is bound to to take all possible care of the 
 cargo. If the ship be stranded, the duties and liabili- 
 ties of the owners and master are not varied by that 
 event but continue as before. They are bound to show 
 that no human diligence or skill could save the proper- 
 ty from being lost by the shipwreck, but that it perished 
 with the wreck. After any loss of, or damage to, the 
 goods is shown, the burden lies upon the carrier to show 
 that it was occasioned by one of the perils from which 
 
358 POWEBS AND DUTIES OF THE MASTER. 
 
 he was exempted by the bill of lading. In Cordes v. 
 Propeller Niagara, 21 Howard, 7, the Supreme Court 
 of the United States held, that the ship-owner was lia- 
 ble for loss and damage happening to the cargo after 
 the ship had stranded, because the master did not suflS- 
 ciently exert himself to prevent such loss or damage. 
 A loss of the goods caused by negligence, carelessness 
 or unskilfulness, or any loss, which might have been 
 prevented by human exertions,, is not a loss by a peril 
 of the sea, which exonerates the master and ship-owner 
 under their bill of lading from liability. 
 
 When goods are found to be damaged in an interme- 
 diate port, the master should take care that they are 
 carefully examined by competent persons, who will re- 
 commend the proper steps to be taken for drying them 
 &c. 
 
 Masters sometimes think, that where the whole cargo 
 cannot be forwarded, it may be sold. This is a wrong 
 impression. It makes no difference that the whole car- 
 go cannot be forwarded ; if any part can be sent on in 
 a comparatively undamaged state, it ought to be tran- 
 shipped, and cannot rightfully be sold. Thus where 
 part of a cargo of indigo, shipped from Calcutta to Eng- 
 land, was saved, without any material damage, from 
 the wreck of the ship and landed at the Cape of Good 
 Hope, and there sold by the master, instead of being 
 forwarded, as it very shortly afterwards might have 
 been, by another ship, the court held that, as the jury 
 had found such sale, under the circumstances, not to be 
 necessary, it could vest no title in the purchaser. Free- 
 
POWEKS AND DUTIES OF THE MASTER. 359 
 
 man v. East India Comp., 5 B. & Aid. 617. It is the 
 duty of the master, in such a case, to warehouse the car- 
 go till the owner's directions are received as to what is 
 to be done with it. But if the cargo be so damaged, as 
 not to be in a merchantable state at the time of the cas- 
 ualty — ^if it be certain that, if sent on to its port of des- 
 tination, it will be destroyed by putrefaction, arising 
 from sea-damage, before arriving there — if, in short, 
 considering the nature and condition of the cargo, and 
 thecost of transhipment, a prudent owner, if uninsured 
 and on the spot, would, in the exercise of a sound dis- 
 cretion, rather sell than tranship, the sale by the master 
 will be justified. 
 
 The cost and difficulty of transhipment, as compared 
 with the probable worth of the cargo, if forwarded, is, 
 undoubtedly, a circumstance fit to be taken into the 
 master's consideration in electing whether to sell or tran- 
 ship. This will be shown by the two following cases — 
 A cargo of coffee, sugar and tea, was landed, without 
 damage, after the wreck and total disability of the ship, 
 on the coast of Virginia, about forty miles from the port 
 of Norfolk, to which port the master might have trans- 
 ported it by land, and thence forwarded it to its port of 
 destination by another vessel at an expense altogether 
 less than one-third of its invoice value. Instead of doing 
 so, however, he sold it on the beach for within a frac- 
 tion of that value ; this was held to be neither a right- 
 ful sale, nor a case of constructive total loss. Bryant 
 V. Commonwealth Ins. Co., 6 Pick., 131. On the other 
 
360 POWERS AND DUTIES OF THE MASTER. 
 
 hand, where a cargo of wheat was saved from a strand- 
 ed ship, and got ashore much damaged, on an open 
 beach, many miles from the nearest port, to which it 
 must have been transported partly along the beach, and 
 then carried several miles in boats with great hazard, 
 the court held, that these facts justified an abandon- 
 ment, because the master, as the agent of the assured, 
 was not in this case bound to tranship. Treadwell v. 
 Union Ins, Co., 6 Cowen's R., 270. One ground of dis- 
 tinction between these two cases, was undoubtedly the 
 different nature of the respective cargoes, the expense 
 of transporting coffee, sugar and tea, being very trifling, 
 in respect of their value, in comparison with that of 
 transporting grain. 
 
 Jordan v. Warren Ins. Co., 1 Story, C. C, 342, was 
 a case of insurance on freight, on a voyage at and from 
 New Orleans to Havre. The vessel was compelled to 
 put back to New Orleans, in consequence of an acci- 
 dent. The cargo consisting principally of cotton, was 
 so much damaged, that it would require several months 
 to pack it in a condition to be reshipped, and it was 
 sold by the consent of the master and shippers ; and the 
 vessel having taken another cargo on board proceeded 
 on a different voyage. A total loss on freight was 
 claimed. Story, J. said : " The jury have, indeed, found 
 that the master in delivering up the cargo, and allowing 
 the sale thereof at New Orleans, performed his absolute 
 duty td the owners of the cargo, and ought not to have 
 undertaken to carry it forward to its destination in its 
 then damaged state. And I think that the jury were well 
 
POWEKS AND DUTIES OF THE MASTER. 861 
 
 ■warranted in their finding ; for when a cargo on freight 
 is so much injured, that though capable of being carried 
 to the port of destination and there landed, it will en- 
 danger the safety, as well of the ship as of the cargo, or 
 it will become utterly worthless on arrival at the port of 
 destination, it is the duty of the master, exercising a 
 sound discretion, for the benefit of all concerned, and 
 especially of the shippers of the cargo, to land and sell 
 the same at the place where the necessity arises, whe- 
 ther it be the original port of shipment to which the 
 ship returns, or any intermediate port, at which the ship 
 arrives in the course of the voyage. It would be contra- 
 ry to common sense and common justice for him to sac- 
 rifice the cargo for the benefit of another party in inte- 
 rest ; or to elect the party, upon whom the ruin, caused 
 by a common calamity, should fall. In a case of neces- 
 sity, or of unexpected and pressing calamity, emergent 
 in the course of the voyage, the master is, by law, created 
 an agent from necessity for the benefit of the concerned ; 
 and what he fairly and reasonably does, under such cir- 
 cumstances, in the exercise of a sound discretion, binds 
 all the parties in interest in the voyage, whether owners 
 or shippers or underwriters. But then, the question still 
 remains, upon whom is any given loss to fall ? And it 
 by no means follows because a sale of the goods has 
 taken place at a port short of the port of destination, by 
 reason of a damage sustained by the cargo, the cargo 
 specifically remaining, and capable of being carried to 
 its destination,* that there is no freight due thereon by 
 the shippers ; but that the whole loss is to be borne by 
 
362 POWERS AND DUTIES OF THE MASTER . 
 
 the underwriters on freight." 
 
 " Let us see, then, how upon principle the case stands, 
 as hetween the shippers of the cargo and the owners of 
 the ship. We must take it, in the present case, that the 
 sale was with the entire consent and approbation of the 
 shippers, as well as the master, and for the benefit of 
 the former. Now nothing is better founded in the law 
 on this subject, than that the shippers are bound to pay 
 the full freight for the voyage, if the cargo be carried to 
 the port of destination, and specifically remain, notwith- 
 standing at its arrival it be, by reason of sea-damage, 
 utterly ruined and worthless. This doctrine^ although 
 formerly a matter of some doubt, is now firmly establish- 
 ed, and indeed, must be manifestly correct upon prinoi- 
 pie. It is as clear, that after the shipment of the cargo 
 on the voyage, the shippers have no right to demand it 
 at any intermediate port short of the port of destination, 
 without payment of .the full freight for the voyage, 
 whether the cargo arrive there in a damaged or in an 
 undamaged state. The reason is obvious. The master 
 has a right to carry on the cargo to the port of destina- 
 tion ; and if his ship be capable, either then, or within a 
 reasonable time, of carrying the cargo to the port of des- 
 tination, there is no ground to say, that he is not enti- 
 tled to earn a full freight ; and the shippers of cargo 
 cannot insist upon changing the original contract in in- 
 vitum, and cut him ofi" from all freight ; or dismiss him 
 with a pro rata freight." 
 
 " The contract of the ship-owner is to carry the cargo 
 to the port of destination ; but he by no means warrants 
 the state, in which it shall arrive, as it may be affected 
 
POWERS AND DUTIES OF THE MASTER. 363 
 
 by the perils of the seas, or other perils, against which 
 his contract does not bind him. It is no answer to say, 
 that if the cargo be carried on in a damaged state, it will 
 be ruined. The true reply is, that the ship-owner has 
 nothing to do with that ; and that the shippers have no 
 right to throw the loss of freight upon him, because the 
 cargo is in danger of ruin by a calamity against which 
 he did not warrant them." 
 
 " How then, do these principles apply to the circum- 
 stances of the present case ? The ship was repaired and 
 capable again of taking on board the cargo, at New Or- 
 leans, within a reasonable time. The master had a 
 right to require, that it should be so taken on board and 
 carried on the voyage, as soon as it should be in a con- 
 dition to be safely re-shipped. He had a right to wait 
 until the cargo could be dried, sorted, re-packed and pre- 
 paied for re-shipment. The delay, arising thereby, 
 would be a mere retardation or temporary interruption or 
 suspension of the voyage, and not an utter prostration 
 or destruction of it. If, then, the freight hare been lost, 
 it has been lost by his own voluntary act, and not by 
 the necessary operation of any of the perils insured 
 against. The whole evidence shows, that the cargo 
 could have been dried, sorted and re-packed safely for 
 the voyage, and at the farthest, within six months. 
 Mere delay in the voyage or disappointment as to the 
 time of arrival, constitutes as we have seen, no ground 
 for an abandonment of the voyage. So that, here, the 
 loss of freight has been by a voluntary abandonment of 
 the voyage by the master ; and not from necessity, su- 
 perinduced by any perils insured against." 
 
364 POWEBS AND DUTIES OF THE MASTER, 
 
 " Then how stand the shippers of the cargo ? They 
 could not require the cargo to be re-delivered to them 
 without the payment of freight for the voyage ; and if 
 they did not choose to pay the freight, the master had a 
 right to retain the cargo for the payment thereof, or to 
 prepare it again for re-shipment, as soon as it could be 
 safely done, unless the owners refused to allow it to be 
 again shipped on the voyage. If they did so refuse, then 
 the contract for full freight would have been complete 
 on the part of the ship-owner, from the default on the 
 other side. But we must take the case here to be, what 
 in reality it was, a mutual voluntary agreement on the 
 part of the master and the shippers, that the damaged 
 cargo should be sold. The sale must therefore be treat- 
 ed as a sale reserving all the rights of the respective 
 parties. And, in my judgment, the ship-owner was, 
 for the reasons already stated, upon principle, entitled, 
 under all the circumstances, to a full freight for the voy- 
 age, upon all the goods so sold or relinquished. He 
 has, therefore, not lost his freight for the voyage, from 
 any perils insured against ; but is a clear right now ex- 
 isting against the shippers of the cargo, or, if lost, it has 
 been lost by the voluntary relinquishment of the master 
 and owner, by their own act or default." See also Her- 
 bert V. Hallet, 3 John Cas, 93 ; Griswold v. the New 
 York Ins. Co., 1 John R., 204 ; Saltus v. Ocean Ins. 
 Co., 14 John R., 138 ; Whitney v. the New York Ins. 
 Co., 18 John R., 208 ; McGaw v. the Ocean Ins. Co., 
 2 Chandler's Law Reporter, 363. As far as the Ameri- 
 can authorities have gone, they uniformly sustain the 
 doctrine we have cited above. The question has arisen 
 
POWERS AND DUTIES OF THE MASTER. 865 
 
 also in England ; and has there received a similar de- 
 termination, see Mordy v. Jones, 4 Barn & Cress., 394. 
 It is often said in books, that where cargo is delivered 
 to the owner at the intermediate port, or sold for his be- 
 nefit, a pro rata freight is due. Pro rata freight has no 
 existence in law, or in commercial usage, except as a 
 compromise made by the owner of a cargo with the 
 owner of a ship, where the former agrees to receive his 
 goods short of their port of destination from some cause, 
 when he agrees to give a partial freight, and the ship- 
 owner agrees to accept it and deliver the goods. But in 
 law, insurance, and the adjustment of Averages, there is 
 no such thing as pro rata freight. No such thing can 
 be demanded or recovered as a legal right dependent 
 upon the contract of afireightment. It must be a ques- 
 tion oi full freight or of no freight earned. 
 
 A sale of the ship is frequently made by the master ; 
 and if this be justified by necessity it is valid. He has, 
 however, no authority to sell the vessel, except in the ex- 
 ercise of good faith, and upon the compulsion of a neces- 
 sity to be determined in each case by the actual and 
 impending peril to which the vessel is exposed, which 
 must be such as to render it probable, in the opinion of 
 persons competent to judge, that the vessel cannot be 
 saved, and which must be so pressing that the owners 
 and underwriters cannot be informed of the situation of 
 the vessel in time to direct the master, before she will 
 probably be lost. If there be a probability of loss, and it 
 be made more hazardous by every day's delay, the mas- 
 ter may then act promptly and sell the vessel, if that be 
 the best thing that can be done, in order to save some- 
 
366 POWEES AND DUTIES OF THE MASTER. 
 
 thing for the benefit of all concerned, though but little 
 may be saved. Where he has authority to sell the hull 
 of a stranded vessel, he has authority to sell the sails, 
 rigging and anchors taken or saved from her. If the 
 vessel be in, or may be put in, a place of safety, and the 
 owners or insurers can be informed, the master has no 
 authority to sell it, however much it may be damaged. 
 Hall V. Franklin Ins. Co., 9 Pick., All ; Pierce v. 
 Ocean Ins. Co., 18 Pick., 88. 
 
 Whether the mere want of funds can be of itself a suf- 
 ficient necessity to justify a sale of the ship by a master 
 has been much disputed. But we strongly incline to 
 the conclusion, that a master can have no power from 
 necessity to sell a ship that is not a wreck. It is true 
 that the master may have no funds with him, and that 
 his owners may not be known, or their pecuniary res- 
 ponsibility ascertained where his ship needs repairs ; but 
 it is not easy to imagine a place where extensive repairs 
 could be made, and yet no money be raised on bottomry 
 of the ship. To meet this very emergency, the law and 
 custom of bottomry are universal. If the requisite re- 
 pairs would cost so much that the ship, when repaired, 
 would not suffice as security for the sum, then the great- 
 ness of the injury, as measured by this cost, might be 
 equivalent to a wreck, and on this ground justify a sale. 
 If the injury be less, so that a comparatively small sum 
 would repair her, but that cannot be raised, then it is a 
 question whether the master should sell at once, or de- 
 lay the sale until orders can be received from the own- 
 ers. And, although there may be peculiar cases and 
 emergencies, which must be judged of by themselves, 
 
POWEKS AND DUTIES OF THE MASTER. 367 
 
 as a general rule we should have no hesitation in say- 
 ing, that the master, of a ship thus slightly injured, 
 would have no other right than to let her lie in port, 
 with all possible precaution against deterioration, until 
 he could hear from his owners. There may he, perhaps, 
 a case in which the master may be justified in selling 
 by a mere pecuniary necessity ; but this must be ex- 
 treme and unquestionable ; it must be such as to come 
 clearly within the rule already laid down, and make it 
 indisputably certain that the owner himself, if there un- 
 der similar circumstances, would have found a sale the 
 only thing he could do ; for, it must be such as to show 
 that the sale was clearly of necessity and not of expedi- 
 ency only. 
 
 The schooner Margaret Hopping (Ruckman v. M. L. 
 Ins. Co., 5 Duer, 366), on a voyage from New York to 
 San Francisco, put into Valparaiso as a port of necessi- 
 ty for repairs, the master was unable to raise the neces- 
 sary funds on bottomry, and abandoned and sold his 
 vessel without consulting his owners. On these two 
 points Judge Duer says : " For aught that appears, the 
 condition of the vessel at Valparaiso was one of entire 
 safety, and it is proved that the master might have 
 communicated with his owner in this city, by the Pa- 
 nama route, and received an answer within eighty, at 
 the utmost ninety, days from the date of his letter. We 
 are bound to presume that the plaintiff, upon being in- 
 formed of the exact situation of the vessel, and of the 
 inability of the master to make the repairs she needed, 
 could and would have remitted to him the necessary 
 funds, either in bills, or by opening a credit in his favor 
 
368 POWERS AND DUTIES OF THE MASTER. 
 
 with a house in Valparaiso. Let an additional month 
 be allowed for repairing the vessel, and another for the 
 time that would have elapsed from the arrival of the 
 vessel at Valparaiso, until the failure of the master to 
 raise the funds that he required ; we have thus five 
 months as the full period that would have elapsed, had 
 the course that has been indicated been followed, from 
 the first arrival of the vessel at Valparaiso until she 
 would have been fitted by sufficient repairs to resume 
 the voyage. And the question, therefore, is, whether 
 the fact that this, or even a greater delay, in the re- 
 sumption of the voyage, must have intervened, had the 
 master elected to remain at Valparaiso until he obtain- 
 ed from his owner the funds that he required, created of 
 itself, independent of any other circumstance, a con- 
 structive total loss, that warranted the master in break- 
 ing up the voyage, and justified an abandonment by his 
 owner. We are satisfied, both on principle and upon 
 the authorities, that to this very material question, no 
 other than a negative answer can be given." 
 
 The master's authority to sell the vessel or cargo is in 
 no manner increased or diminished by the owner's aban- , 
 donment or right of abandonment to underwriters ; nor 
 by the recommendation of surveyors or bystanders ; but, 
 as we have seen, is solely dependent upon the existence 
 of an honest purpose on his part to do the best in his 
 power for all concerned, and upon a moral necessity so 
 urgent, under the actual circumstances, as to make a 
 sale necessary, as a proper discharge of duty to the own- 
 ers, in order to prevent a greater loss. Good faith and 
 necessity for the sale must both concur to make the sale 
 
POWERS AND DUTIES OF THE IVIASTER. 369 
 
 valid. To exonerate themselves from damages for a tor- 
 tuous conversion, the master and ship-owner must show 
 this concurrence ; and the purchaser, to protect his title, 
 must in like manner prove the good faith of the master 
 and the necessity for the sale. The order of court, or of 
 port wardens, or of any other tribunal, for a sale, procured 
 by the master, will not make the sale legale where the 
 required necessity and good faith do not exist. The 
 master's sale is subject to review in the home tribunals, 
 and can be defended only by showing the facts and cir- 
 cumstances under which it was made. The Sarah 
 Ann, 13 Peters, 387 ; Patapsco Ins. Co. v. Southgate, 
 5 Peters, 620 ; Rohinson v. Comm. Ins. Co., 3 Sumner, 
 221 ; Post V. Jones, 19 Howard, 150 ; ffall v. Frank- 
 lin Ins. Co., 9 Pick., 466; Prince y. Ocean Ins. Co. 40 
 Marine R. 481. 
 
 At one time, a distinction was made between the 
 power of the master if abroad, or if wrecked on the coast 
 of his own country. But this has disappeared. The 
 only rule now is, that he must inform his owners, and 
 wait their instructions if he can. The general introduc- 
 tion of the electric telegraph, will much extend the pos- 
 sibility, and consequent duty. For let the master be 
 where he may, and his owner far or near, it is certain 
 that he can dispossess the owner of his property by a sale, 
 only when his authority for this rests on necessity, and 
 only when that necessity is such as to preclude inter- 
 course between them without an unreasonable exposure 
 of the property to peril. In other words, if he can be- 
 come the agent of the owner with instructions, then he 
 
 caimot be his agent from necessity. JVew England Ins, 
 24 
 
370 POWERS AND DUTIES OF THE MASTER. 
 
 Co. V. brig Sarah Ann, 13 Peters, 387, 401 ; Pihe v. 
 Balch, 38 Maine, 302 ; The brig Sarah Ann, 2 Sum- 
 ner, 215. 
 
 In every case of disaster, the master should cause a 
 faithful and minute record of all that transpires to be 
 entered in the ship's log book, and so far as can be ascer- 
 tained, all articles carried away by the violence of the 
 gale, or sacrificed for the general benefit, should be no- 
 ted. In fact, the log-book should contain a correct and 
 clear statement of the events of the voyage. This will 
 materially aid the notary in the extension of the Pro- 
 test, and will furnish, frequently, the best evidence by 
 which to enable the owner to collect his claim of the un- 
 derwriter. Protests unsubstantiated by the log-book, 
 are often regarded with suspicion, the underwriter is 
 apt to consider them colored or as setting forth the re- 
 sult of the gale in the strongest possible light. And if 
 the master be compelled to put into an intermediate port 
 for repairs to his ship, he should be careful to communi- 
 cate all the circumstances, including the probable cost 
 of repairs, to the owners, consignees or underwriters, as 
 they may be most near or easy to be sent to. Delay 
 from want of communicating intelligence, is often very 
 injurious to those interested. 
 
 When substantial repairs are needed, the master 
 should seek for good and economical mechanics ; super- 
 intend the work himself, carefully note the time the me- 
 chanics are e)nployed, and materials used ; and see that 
 credit for old material, and discount for prompt pay- 
 ment be duly deducted from the bills. 
 
POWERS AND DUTIES OP THE MASTER. 371 
 
 If the vessel be compelled to seek a port, where full re- 
 pairs cannot be made at all, or without extraordinary- 
 expense, temporary repairs should be put on the vessel, 
 to enable her to reach the nearest port where the need- 
 ed repairs can be made, or to complete the voyage. 
 These temporary repairs are generally paid in full by the 
 underwriters, i. e. without the deduction of one-third new 
 for old ; and full repairs can always be made after get- 
 ting into a suitable port for repairing, at the expense of 
 the underwriters as in other cases. 
 
 If spars be sprung, or sails or rigging injured, and 
 cannot be readily replaced, or without great expense, 
 every expedient with which a practiced seaman is rea- 
 dy, ought to be resorted to, in order to make the injured 
 articles serve until arrival at some conspicuons port 
 where the repairs can be done completely. The repairs 
 can then be made with advantage to all parties, without 
 delay of the voyage, or an extravagant extent of expen- 
 diture, which is always more or less to the discredit of 
 the ship-master. Many masters are under the impress- 
 ion that where the vessel is fully insured, the disaster 
 furnishes a good pretext for the owner's putting the ship 
 in thorough condition at the expense of the underwrit- 
 ers ; this, to say the least, is highly dishonorable, and 
 discreditable alike to the master and owner; besides the 
 master should bear in mind, that in nearly all ca^^es, 
 one-third of the gross repairs, whether they be of a Ge- 
 neral Average or Partial Loss character, falls on the 
 owners. To endeavor to collect from the underwriters, 
 for repairs, not arising from the perils insured against ; 
 or to pay for old defects or decay ; or for improvements, 
 
372 POWERS AND DUTIES OF THE MASTER. 
 
 is nothiag less than an attempt at fraud ; and when dis- 
 covered, injures, forever, the character of the master and 
 of the ship, in the estimation of the underwriters. 
 
 The master should also endeavor to guard against the 
 impositions that are frequently attempted by the parties 
 to whom he has consigned his vessel, at an intermedi- 
 ate port. In some places, the commission charged on 
 the value of cargo landed and re-shipped, called a cus- 
 tody commission, is enormous, and wholly disproportion- 
 ed to the labor or responsibility incurred. When the 
 discharge of cargo is found to be absolutely necessary, 
 the master should ascertain, before he proceeds with the 
 discharge, what this commission will be, and if an un- 
 reasonable sum be required, he should keep the entire 
 control of the cargo in his own hands, hiring store-room 
 himself But after the master has fully consigned his 
 ship, it is sometimes found too late to obviate these ex- 
 cessive charges. He should therefore make no consign- 
 ment, until all expenses, for repairs, commissions &o. are 
 known, by estimate or otherwise. A proper charge for 
 storage, and a regular commission for the general busi- 
 ness of the ship under repair, will afford, in most in- 
 stances, a fair and adequate remuneration. It is always 
 proper to have suitable men employed to watch and take 
 caie of the cargo, whose compensation will fall into an 
 average, general or partial, and without any deduction. 
 A reasonable compensation to the merchant for his ac- 
 tual trouble, responsibility and services, will be justiy 
 chargeable and freely allowed ; but the difference be- 
 tween such charges and a commission on the whole oar- 
 go, will be obvious to every shipmaster. During the 
 
POWERS AND DUTIES OF THE MASTER. 873 
 
 winter of last year (1866), a vessel, with a valuable car- 
 go, was dismasted and put into an intermediate port for 
 repairs. At the request of the underwriters, the author 
 of this work went out to advise with the master, as to the 
 measures to be taken for the general benefit. It was 
 found that the cost of landing, storing and re-shipping 
 the cargo, exclusive of commissions, would be very great. 
 This expense was obviated (the cargo not being dam- 
 aged), by sufficient cargo being broken out at one of the 
 hatches, and placed on the deck of the vessel, carefully 
 protected by tarpaulins &c. The old mast was taken 
 out and a new one stepped. The cargo was then re- 
 stowed, and the same course pursued at the other hatch. 
 And all the repairs were made without any portion of 
 the cargo being landed. It is needless to add, that con- 
 siderable expense was saved — the master readily co-ope- 
 rating with the underwriter's agent. 
 
 When goods are found damaged in an intermediate 
 port, the master, as we have seen, should take care that 
 they be carefully examined by competent persons, who 
 will recommend the proper steps to be taken for drying 
 them &c. And, if there be danger of their perishing, or 
 of injury to the other parts of the cargo by their re-ship- 
 ment, a sale should be made of such portions as will 
 avoid this inconvenience; bearing in mind, however, the 
 rules of law we have already cited and laid down for 
 the master's guidance in this respect. 
 
 It not unfrequently happens that vessels are sold by 
 masters abroad, simply because funds cannot be readily 
 obtained to pay for repairs, and it has become a system 
 in many places, to advertise for a loan on bottomry, and 
 
374 POWERS AND DUTIES OF THE MASTER. 
 
 in case no oflFer is made within a few days, to sell the 
 vessel. We have, elsewhere, endeavored to show, that 
 there is no justification for the sale of the vessel in the 
 mere fact that money cannot be had on bottomry to pay 
 for the repairs she needs. If the vessel be in good safety, 
 and can remain so until her owners or their underwri- 
 ters can be informed of the want of money to pay for re- 
 pairs, the master has no legal authority to sell her, and 
 any title he attempts to give will be invalid. It is only 
 when the vessel is so situated that there is imminent 
 danger of her being totally lost, while waiting for advi- 
 ces from her owners, that the master is justified in sell- 
 ing her. 
 
 When the master is compelled to pay the disburse- 
 ments by means of a bottomry bond, he should endeavor 
 to reduce the amount to be borrowed as much as possi- 
 ble, by applying the sale of any condemned stores of the 
 ship, and the proceeds of any damaged goods, part of the 
 cargo, which surveyors have recommended to be sold on 
 the spot, in diminution of the amount of disbursements. 
 Sometimes it is impossible to raise money at all on bot- 
 tomry ; and sometimes the rate demanded is so high as 
 to appear ruinous, and other means of raising funds are 
 resorted to. The master under such circumstances, may 
 proceed to sell a portion of the cargo ; but he has no 
 right to sell an entire cargo at an intermediate port, to 
 raise funds to repair his vessel. He has the same right 
 to sacrifice a part that the remainder of the interests 
 may reach their destination, that he has to throw a por- 
 tion into the sea to procure the safety of the rest. A 
 sale of part of the cargo should not be resorted to except 
 
POWERS AND DUTIES OP THE MASTER. 375 
 
 in the most ui-gent cases, and where the cargo will bring 
 reasonable prices. For, what is sold must be accounted 
 for at the prices it would have brought on its arrival at 
 the port of destination, which frequently will be with a 
 heavy profit, and bs ruinous to the voyage. This mat- 
 ter of selling should be carefully examined when pro- 
 posed ; no more than is absolutely necessary should be 
 disposed of; and the latest prices at the place of desti- 
 nation of the cargo to be offered for sale, should be first 
 ascertained, before such a decision be taken, and a se- 
 lection made of such cargo as is likely to occasion the 
 least loss. 
 
 Should it be necessary to jettison a part of the cargo, 
 care should be taken to throw overboard the least valu- 
 able and most weighty parts of it, if time and other cir- 
 cumstances will permit of the selection being made. 
 
 It is the duty of the master's consignee to assist him 
 in repairing the ship, and in preserving and taking care 
 of the property. He ought to furnish the master with 
 honest and true accounts, and if he furnish him with 
 fictitious or overcharged bills, with a view to enable him 
 to make money out of his owners on a settlement with 
 them; or to enable the owners to make money out of 
 the underwriters, he will forfeit his right to recover of 
 the owners the money truly advanced by him ; and a 
 bottomry bond, taken by him under such circumstan- 
 oes, is void. 18 Howard's S. C. Rep., p. 63. 
 
 If the owner be present in person or by agent, or be 
 within easy access, the master has ordinarily no power, 
 unless specially authorised to do any of the things above 
 mentioned. The schooner Tribune, 3 Sumner, 144. It 
 
376 POWERS AND DUTIES OF THE MASTEK. 
 
 is his duty to inform the owners of the ship and of the 
 cargo, at his earliest opportunity, of any disaster inter- 
 rupting the voyage ; and, if circumstances will permit 
 it, without unjustifiable delay, he should await their in- 
 structions, before adopting measures involving serious 
 loss or heavy expenses. Bryant v. Ins. Co., 13 Pick. 
 R., 543; Pike v. Batch, 38 Maine R., 302. 
 
 The owners of a ship, insured in England, can aban- 
 don to the underwriters, on account of damage caused 
 by a peril insured against, only where the ship, when 
 recovered or repaired, will not be worth the expense ne- 
 cessarily incurred in recovering or repairing her. But 
 ship-owners, insured in the United States, may aban- 
 don, on account of damage caused by a peril insured 
 against, according to the decisions of the federal courts 
 and most of the state courts, when the cost of repairs 
 without any deduction of " one-third new for old," will 
 exceed half the value of the ship, after she has been re- 
 paired at the place of repairs — in the absence of any sti- 
 pulation in the policy to the contrary. According to 
 the decisions of the state courts of Massachusetts and 
 New York, the " one-third new for old" is to be deduct- 
 ed from the repairs, and the valuation in the policy, if 
 there be one, is to be adopted in determining the right 
 of abandonment. Consequently the repairs necessary 
 to restore the vessel to a sound condition must amount 
 to more than seventy-five per cent, of her valuation in 
 the policy, when repaired (one third of which, twenty- 
 five per cent., being cast off, leaves fifty per cent.), be- 
 fore there can be an abandonment, which insurers are 
 bound to accept, and settle for as for a total loss. The 
 
POWERS AND DUTIES OF THE MASTER. 377 
 
 New York policies contain a provision that the valuation 
 in the policy, if there be one, if not, then the actual val- 
 ue at the time of the inception of the risk, at the port to 
 which the vessel belonged, shall be taken in determin- 
 ing the question of the right of abandonment. The New 
 England policies contain a similar provision, and also 
 stipulate for the deduction of " one-third new for old" in 
 determining the same question. 
 
 If the ship be saved and complete the voyage by car- 
 rying forward the cargo, it is the duty of the master or 
 ship-owner to cause a final apportionment or adjustment 
 of the expenses that have been incurred for the general 
 benefit, to be made at the port of delivery, without un- 
 necessary delay. In Dupont de Nemours v. Vance, 19 
 Howard's S. C. Reps,, 162, it was decided, " That when 
 cargo is lawfully jettisoned, its owner has, by the ma- 
 ritime law, a lien on the vessel for its contributory share 
 of the General Average compensation ;" and, that the 
 owner of the cargo may enforce payment thereof by a 
 proper proceeding in rem against the vessel and against 
 the residue of the cargo, if it have not been delivered." 
 An unconditional delivery of the goods by the master to 
 the consignee would be considered as a waiver of the 
 lien, and it would be lost. Rae v. Cutler, 7 Howard, 
 729. But it is the duty of the master not to deliver, but 
 to detain the goods, as well those belonging to the Uni- 
 ted States as those belonging to individuals, until the 
 contribution toward the Average be either paid or secur- 
 ed. .Simoncls v. White, 2 Barn & Cress, 805 ; Strong 
 V. Firemen's Ins. Co., 11 Johns, 324; The United 
 States V. Wilder, 3 Sumner, 308. The custom is, that 
 
378 POWERS AJfD DTJTIES OF THE MASTER. 
 
 the master delivers the goods, and takes a bond from 
 the consignee, conditioned to pay his contribution when 
 the Average shall be adjusted. Barnard r. Adams, 10 
 Howard, 270 ; Sturgis v. Cary, 2 Curtis, 382. An ad- 
 justment of General Average, fairly made at the port of 
 delivery according to the law of the place, is binding 
 upon all parties and interests. Peters v. Warren Ins. 
 Co., 1 Story, 471 ; Lewis v. Williams, 1 Hall, N. Y. 
 430 ; Simonds v. White, 2 Barn. & Cress, 805. 
 
CHAPTER IX. 
 
 CARRIAGE OF GOODS ; 
 
 EARNING AND PAYMENT OF FEEIGHT &e. 
 
 The ship-owner undertakes and promises to carry in 
 his ship the goods of the shipper to their destined port in 
 safety (perils of the seas excepted), by the proper route, 
 and in due season. This implies a promise that his ship 
 i tf':;Vf-'rthy in all respects, that it has a sufficient mas- 
 ter and crew, who will take due care of the goods as to 
 lading them on board, carrying and delivering them, 
 and who will navigate the ship to her destined port in 
 the usual way, without unnecessary delay or deviation. 
 And if there bo a failure in any of these particulars, and 
 the goods be thereby injured or lessened in their value 
 to their owner, the ship-owner is responsible, and the 
 ship itself is subjected to the lien of the shipper of the 
 goods, in order that he may enforce his rights, or obtain 
 indemnity for a violation of them. On the other hand, 
 if the goods be so carried, the owner of the goods is 
 hound to pay to the owner of the ship the freight earn- 
 ed by the carriage, and the ship-owner has a lien on the 
 goods to enforce his rights against them. And if the 
 
380 CAKBIAGE OF GOODS. 
 
 goods be once laden on board, the ship-owner has a 
 completed right to carry them the whole distance ; nor 
 can the shipper re-claim them and take them out of the 
 ship, (unless by his consent) without paying to the own- 
 er either his full freight, or compensation for any trou- 
 ble or loss sustained by him. 1 Parsons^ Mar. Law,122. 
 
 If goods be carried on deck without the consent of 
 the shipper, and be lost by a peril of the seas, the own- 
 er will be responsible, although the bill of lading con- 
 tained a clause excepting the liability of the owner for 
 a loss by perils of the sea. For this exception does not 
 lessen his obligation to carry the goods in the proper 
 and customary manner. The Rebecca, Ware, 188 ; The 
 Waldo, Davies, 161. But if no damage result from 
 their being put on deck, the owner of the vessel will not 
 be liable for injury happening to them from any other 
 cause, and the shipper must pay freight. Gardiner v. 
 Smallwood, 2 Hayw., N. C. 349 ; Vernard v. Hudsori, 
 3 Sumner, 405. 
 
 It is universally conceded that the master of a carrier 
 ship, on his arrival at the port of delivery, has a right 
 to retain the goods until the freight be paid by the con- 
 signee. But in order to the exercise of this right, it 
 is necessary not only that the goods should have arriv- 
 ed at the place of their destination, but they must be 
 taken out of the vessel, and the master must be ready to 
 deliver them on payment or tender of the freight. It is 
 quite clear upon authority, that the unlivery of the car- 
 go is, by,the maritime law, a condition precedent to the 
 perfect right to freight and the right to detain for non- 
 payment; and the reason is that the merchant may 
 
EARNING AND PAYMENT OP FREIGHT feTC. S81 
 
 have an opportunity to examine the goods, before he 
 makes himself liable at all events for the freight. 2 
 Sumner's R., 589. 
 
 The master may detain any part of the merchandise 
 for the freight of all that is consigned to the same per- 
 son. Hence, if the master in such case make a deliv- 
 ery of part of the goods to the consignee, he may retain 
 the residvie even against a purchaser, until payment of 
 the freight of the whole. But if the goods be sold to 
 different persons by the consignee, and part be delivered, 
 the master has not a lien upon the residue so as to com- 
 pel one purchaser to pay freight for what has been de- 
 livered to another pm-chaser; but only for what has 
 been purchased by himself 
 
 This lien may be waived by consent; the stipula- 
 tions in charter-parties often rendering it difficult to de- 
 termine whether they be not inconsistent with the lien, 
 for instance, if the delivery of the goods be by the char- 
 ter-party to precede the payraent or security of payment 
 of freight, such a stipulation furnishes a clear dispensa- 
 tion with the lien for freight, for it is repugnant to it, 
 and incompatible with it. On the other hand, where 
 such payment or security of payment of freight, is to be 
 simultaneous or concurrent with the delivery, then the 
 lien exists in its full force, and may be insisted on. The 
 Volunteer, 1 Sumner's R., 551; Chandler \. Belden, 
 18 Johns, 157. 
 
 The shippers are bound to pay the full freight for the 
 voyage, if the cargo be carried to the port of destination, 
 and specifioally remain, notwithstanding at its arrival 
 it is, by reason of sea-damage, utterly ruined and 
 
382 CAKSIAGE OF GOODS. 
 
 "worthless. And after the shipment of the cargo on the 
 voyage, the shippers have no right to demand it at any 
 intermediate port, short of the port of destination, with- 
 out fall payment of freight for the voyage, whether the 
 cargo arrive there in a damaged or undamaged state. 
 The shipper or consignee cannot, by refusing to receive 
 the goods at the port of destination, release the shipper 
 from the payment of freight. Jordan v. Warren Ins. 
 Co., 1 Story's R., 342, 352 ; The ship Nathaniel Hoop, 
 er, 3 Sumner's R., 554; Caze v. The Baltimore Ins. Co. 
 7 Cranch R., 358, 362 ; Hunter v. The Union Ins. 
 Co., 1 Wash. C. C. R., 530 ; Hedfield v. Jameson, 2 
 Mump., 53. 
 
 The ship owner is responsible only for the transporta- 
 tion of the cargo, the freight will be due on its delivery 
 at the port of destination, and in whatever degree goods 
 may be diminished in value by decay or damage from 
 perils of the sea, and though they may be of no value 
 on arrival at the port of destination. Still, if they be 
 delivered in specie, being articles of the same kind as 
 those shipped and not mere remains of its destruction or 
 decay, freight is due ; and accordingly, though the goods 
 may be totally lost to all the purposes for which they 
 can be available to the shipper, there is not a total loss 
 of freight. Hugg v. Augusta Ins. Co., 7 Howard's U. 
 S. Sup. Ct. R., 595. 
 
 If freight be paid in advance, and the goods be not 
 carried by reason of any event not imputable to the ship- 
 per, it is to be repaid unless there be a special agree- 
 ment to the contrary. But if the subsequent non-per- 
 formance of the contract be occasioned by the neglect or 
 
EARNING AND PAYMENT OF FREIGHT ETC. 383 
 
 default of the party who has paid it ; the money paid 
 in advance is not recoveiahle back. Watson v. Duyh- 
 inch, 3 Johns, 335 ; 1 Peters Adm. R. 207 note ; De- 
 touches V. Peck, 9 John's R., 210; Griggs v. Austin, 
 3 Pick., 20. 
 
 It is clear, from all the authorities ancient and mo- 
 dern, that if the ship be disabled in the course of the 
 voyage and can be repaired in a reasonable time, and 
 the cargo is not perishable, the master is not bound to 
 tranship, but he may detain the cargo until the repairs 
 be completed, and then prosecute his voyage and earn 
 full freight. If however, the ship cannot be repaired at 
 all, or not without very great loss of time, the master is 
 at liberty to tranship, and so to earn the whole freight, 
 and in such case the freighter is bound to pay the extra 
 freight for the renewed voyage, which the master pays 
 for the hire of the vessel which he procures ; that is to 
 say, the owner of the goods is not responsible for the old 
 and the new freight united, but for the excess of the 
 whole freight over what the old freight would have 
 been, if the first ship had been able to carry on the 
 goods. This subject has been fully considered under 
 Chapter on the " Powers and Duties of the Master." 
 
 The general rule is, that no freight is due for goods 
 which perish by the perils of the seas in the course of 
 the voyage. In the case of Frith v. Baher, 2 John's R., 
 327, it appeared that fifty hogsheads of sugar were ship- 
 ped on freight. They were properly stowed, but during 
 the course of the voyage the ship leaked, owing to tem- 
 pestuous weather, by means of which the sugar was 
 washed out, and upon the arrival of the vessel at the 
 
384 CAREIAGE OF GOODS. 
 
 port of destination, the hogsheads were empty, and som6 
 of them fell to pieces. It was held that no freight was 
 due. The sugar was as effectually destroyed as if it had 
 at once been swept into the sea, and gone to the bot- 
 tom. Bringing into port the empty hogsheads was not 
 bringing the hogsheads of sugar, which the carrier had 
 undertaken to do. The authorities all concur upon the 
 point that no freight is due for casks leaked out by per- 
 ils of the sea, as the subject matter of the contract no 
 longer exists. But, if the commodity be lost by other 
 causes than the perils of the sea, such as internal decay, 
 leakage, evaporation and the like, the freight is due ne- 
 vertheless. 2 John's R., 327 ; Coffin v. Storer, 5 Mass., 
 252. The owner of liquids or any articles shipped in 
 casks of any description, is in the first instance charge- 
 able with the duty of supplying proper casks, and would 
 presumptively be responsible for a loss arising from their 
 insufficiency or defect. The effect of an unqualified bill 
 of lading is to transfer this presumptive responsibility to 
 the captain and owners of the vessel. They therein ac- 
 knowledge the good condition of the casks upon their 
 reception on board, and engage to deliver them and their 
 contents, as described, in the same condition. When the 
 case presents nothing else, if the casks be delivered 
 empty, or nearly so, and the actual cause of the leak- 
 age be unknown or conjectured, the owners of the ves- 
 sel lose their freight. They have not performed their 
 engagement. A portion of the freight would also be lost 
 for any number of the casks delivered empty, as well as 
 for any portion of their contents of any cask which had 
 leaked out. The loss in these cases is legally attribut- 
 
EARNING AND PAYMENT OF FEEIGHT ETC. 385 
 
 able to the defect of stowage, or some cause over which 
 the master had control, and for which his contract makes 
 him responsible. As, however, a bill of lading, treated 
 as a receipt, is not conclusiTe, it is open to the ship-own- 
 er and master to prove explicitly that the casks were, in 
 fact, unsound or badly made ; and in such a case the 
 original responsibility of the owner for their condition 
 is restored, and he is bound to pay the freight. A bill 
 of lading may be so qualified as to avoid any acknowl- 
 edgment of the good order of the casks, or the nature of 
 their contents. It may import only that these matters 
 are so represented. In such a case the burthen is thrown 
 upon the shipper to establish the truth of his statement 
 — for example, upon a question of loss, to make the own- 
 er of the vessel responsible — and upon a question of 
 freight, if the casks be delivered, it would be earned, 
 whatever might be their condition or the condition of 
 their contents. In either case explicit words should be 
 used to do away with the obligations which the interests 
 of commerce have rigorously imposed upon the masters 
 and owners of vessels engaging to carry goods for 
 hire. 
 
 The receipt of goods by a general ship under the usu- 
 al bill of lading (by which it is expressed that they are 
 to be delivered to the consignee or his assigns, he or they 
 paying freight for them) is evidence of a contract, by 
 the person so receiving them, to pay the freight due up- 
 on them. The assignee of a bill of lading claiming and 
 receiving goods under it, is bound by the terms of it, 
 not only as to the amount of freight but for the demur- 
 rage also, and there is a suificient consideration ari^^ing 
 25 
 
386 CARRIAGE OP GOODS, 
 
 on the claim of the goods hy him, from which the law 
 will infer a promise by him to pay such demurrage as 
 well as freight. If the master notify the person who 
 receives the goods that he must take them, subject to 
 the charge for freight, the person so receiving them he- 
 comes liable therefor. Or if, by the terms of the bill of 
 lading, the goods be to be delivered to the consignee, 
 or to his order, on payment of freight, the party receiv- 
 ing them, whether the consignee or an endorsee, to 
 whom the bill of lading has been transferred by the con- 
 signee, makes himself responsible for the payment of 
 freight. The law implies a promise on his part to pay 
 the freight, such being the terms on which, by the bill 
 of lading, the goods were to be delivered. The person 
 who accepts and receives the property thereby makes 
 himself a party to the contract. When the consignment 
 therefore, is to A. or his order, and A. endorses the bill 
 of lading, and orders a delivery to B. to whom accord- 
 ingly the goods are delivered, B. becomes bound to pay 
 the freight, and A. is discharged. Trash v. Duval, 4 
 Wash., C. C. R., 184. But whilst the liability of the 
 consignee is admitted where he receives goods under a 
 bill of lading, as above described, it does not follow that 
 the consignor is exempt. There is no shifting of liabili- 
 ty. The contract of the consignor and consignee is not 
 considered to be inconsistent with each other ; each is 
 an original contract upon a sufficient consideration. 
 Grant v. Wood, 1 N. J., 292; Barker v. Havens, 17 
 John's R., 234. In commercial transactions, nothing is 
 more common than that there should be several persons, 
 all of whom are liable for the same thing. And in this 
 
CHARTER-PARTY. 887 
 
 country, the cases all proceed upon the principle that 
 the clause in the bill of lading, " He (the consignee) 
 paying freight," is introduced for the benefit of the car- 
 rier not of the consignor. 
 
 If the master during the course of the voyage be from 
 necessity compelled to sell a part of the cargo to obtain 
 provisions or repairs, the owners must pay to the mer- 
 chant the price that the goods would have brought at 
 the place of destination, consequently they are justly 
 entitled to charge the merchant with the freight that 
 would have been due, had the goods been conveyed 
 thither. So too, if part of the cargo be thrown overboard 
 for the necessary preservation of the ship and the re- 
 mainder of the goods, and by that means the ship be 
 preserved, and perform the voyage, the value of the 
 part sacrificed is to be answered for to the merchant by 
 way of General Average, and the value of freight there- 
 of to the owner. 
 
 Charter-Party. 
 
 The usual stipulations on the part of the owner or 
 master are, that the ship shall be tight and staunch, 
 furnished with all necessaries for the intended voyage, 
 ready by a day appointed to receive the cargo, and wait 
 a certain number of days to take it on board ; that, after 
 loading, she shall sail with the first fair wind and op- 
 portunity to the destined port (the dangers of the seas 
 excepted), and there deliver the goods to the merchant 
 or his assigns, in the same condition they were received 
 
388 CARRIAGE OF GOOD^, 
 
 on board ; and further, that during the course of the voy- 
 age, the ship shall be kept tight and staunch, and fur- 
 nished with sufficient men and necessaries, to the best of 
 the owner's endeavors. 
 
 Upon the delivery by the charterer of his goods on 
 board the vessel, in pursuance of a charter-party of the 
 nature above described, the master signs a bill of lading 
 for them, as in the case of shipments on board a gene- 
 ral ship, the design of a charter-party being to secure 
 the charterer the exclusive right to the use of the ship 
 to the extent and upon the terms stipulated, and the bill 
 of lading being the evidence of the shipping of the par- 
 ticular merchandise to be conveyed in pursuance of the 
 contract. 
 
 Although it is usual in a charter-party, for the owner 
 to stipulate that the ship shall be kept tight, staunch 
 and strong during the voyage ; he is also bound in the 
 absence of such stipulation, to see that she is in a suit- 
 able condition to transport her cargo in safety'", and to 
 keep her in that condition, unless prevented by the sea 
 or unavoidable accident. And if the goods be lost by 
 reason of any defect in the vessel, the owner is answer- 
 able to the freighter upon the principle that he tacitly 
 contracts that his vessel shall be fit for the use for 
 which he thus employs her. Putnam v. Wood, 3 
 Mass., 481. 
 
 Where the vessel is chartered by the month, freight 
 will not cease to accrue during the time exhausted in 
 making repairs, if there be no neglect or unreasonable 
 delay on the part of the owner, in having them made. 
 Spafford V. Bodge, 14 Mass., 66 ; Minot v. Durant, 7 
 
CHARTER-PARTY. 889 
 
 Mass. 438 ; Havelock v. Geddes, 10 East., 555. 
 
 If the whole vessel be chartered to take a cargo, at 
 certain specified rates per ton, and the freighter do not 
 furnish a full cargo, the owner of the vessel is entitled 
 to freight, not only for the cargo actually put on board, 
 but for what the vessel could have taken also, had a 
 full cargo been furnished. Duffie v. Hayes, 15 John's 
 R., 337 ; Heclischer v. M' Crea, 24 Wendell, 304. 
 
 The charterer may underlet the vessel, unless restrain- 
 ed by an express clause in the charter-party. 
 
 The charterer of a vessel is bound to victual and man 
 her, without any express stipulation in the charter-par- 
 ty to that effect, unless it appear from the instrument 
 itself that a different arrangement was intended. Good- 
 rich V. Lord, 10 Mass., 483. 
 
 Where the general owner retains the possession, con- 
 trol and navigation of the ship, that is to say, where he 
 supplies the necessaries for the voyage, and appoints the 
 master and crew, the charter-party is a mere affreight- 
 ment sounding in covenant, and the general owner re- 
 mains owner for the voyage; but where the freighter 
 hires the possession, control and navigation of the ship, 
 agreeing to pay the master and crew, he becomes own- 
 er for the voyage, and the general owner has not the 
 privileges and responsibilities of ownership, in respect to 
 third persons for the voyage. Marcardier v. Chesapeake 
 Ins. Co., 8 Cranch's R. 39. 
 
 If the ship be freighted for an entire lading, and the 
 freighter do not furnish a full lading, the master has 
 no right without the consent of the freighter, to take in 
 other goods to complete the lading. The freighter is en- 
 
890 CAREIAGE OF GOODS. 
 
 titled to the full enjoyment of the ship, and is answera- 
 ble to the owner for the stipulated price, whether he put 
 on board a complete cargo or not. 
 
 If the merchant be not ready at the appointed time to 
 load a cargo, the master is at liberty to seek another 
 cargo, and has also his remedy for damages. Hence, if 
 there be a charter-party, with a covenant to proceed to a 
 foreign port, and take a cargo there on account of the 
 charterer, and return therewith to a certain port for a 
 stipulated hire, and the ship go to the foreign port, 
 and the charterer decline to put any cargo on board, 
 the owner of the ship may engage in another voyage 
 and take another cargo on freight. He is not obliged 
 to pursue a voyage whose whole objects are defeated, 
 and look for recompense to the event of a suit for dam- 
 ages. The neglect or refusal of the charterer to furnish 
 a cargo pursuant to the charter-party absolves the own- 
 er from a further prosecution of the voyage, if he so 
 elect, and enables him rightfully to engage another 
 cargo for another voyage. Kleine v. Catara, 2 Gallis' 
 K, 61. 
 
 Where a certain number of lay-days are stipulated by 
 the charter-party for unloading the cargo, the consignee 
 is not bound to receive the goods as soon as the master 
 is ready to deliver them ; he is entitled to the privilege 
 of taking his own time, provided he do not exceed the 
 number of lay-days, and the freight is not earned until 
 actual delivery to the consignees. If besides the lay- 
 days, a further period be allowed by a clause of demur- 
 rage, the master is bound to wait that period also if re- 
 quired to do so ; but after the full time of laying and 
 
CHARTER-PARTY. 891 
 
 demurrage has elapsed, the master is not bound to wait 
 for a cargo beyond that time, for the contract is termi- 
 nated, and both parties are absolved from all iurther 
 liability under it. If, however, the merchant or his 
 authorised agent request the master to wait, after the 
 stipulated time has expired, there is an implied con- 
 tract that he will pay for the delay. La Combe v. 
 Wain, 4 Binn, 299 ; Robertson v. Bethune, 3 Johns, 
 342. 
 
 Where a charterer stipulates to ship a full cargo, con- 
 sisting of heavy and light goods, he is not obliged to 
 load enough of the heavy goods to keep the ship in pro- 
 per trim, but the ship-owner is bound to provide suffi- 
 cient ballast. Moorsom v. Page, 4 Camp., 103. And 
 where the charterer stipulated that one hundred tons of 
 rice or sugar should be loaded first, in order to ballast 
 the vessel, it was held, that after loading the one hun- 
 dred tons, he was at liberty to complete the cargo with 
 light goods, and if more ballast were needed, the owner 
 was bound to supply it. Irving v. Clegg, 1 Bing., N. 
 C, 53. If the charterer stipulate to furnish a sufficient 
 quantity of goods to fill the vessel and to load her to a fair 
 and reasonable draft, with enough of a certain kind, or 
 its equivalent, for ballast, the charterer is not bound to 
 provide such goods as the master demands, but if the 
 latter can, with the goods furnished, stow the vessel in 
 such a way as to fill and trim her properly, the obliga- 
 tion of the charterer is performed. Rich v. Parrott, U. 
 S. D. C, Mass., 20 Law Reporter, 135. 
 
392 CARRIAGE OF GOODS. 
 
 Bill of Lading. 
 
 A Bill of Lading is an instrument usually signed by 
 the master of a ship, but occasionally by some one au- 
 thorised to act on his behalf, whereby he acknowledges 
 the receipt of merchandise on board of his vessel, and 
 engages, under certain conditions and with certain ex- 
 ceptions, to deliver the same at the port of destination 
 in safety, either to the shipper, or to such person as may 
 be designated by an assignment or order written there- 
 on. It contains the quantity and marks of the goods, 
 the names of the master, ship, shipper and consignee, 
 the place of departure and destination of the cargo, and 
 the stipulated amount of freight, together with allow- 
 ances recognised by the customs at the port of delivery, 
 and known as primage and average. Sometimes two, 
 and sometimes three Bills of Lading are thus signed and 
 delivered, of which the merchant commonly sends one 
 or two to his agent, factor or other person to whom the 
 goods are to be delivered at the place of destination ; 
 that is, one on board the ship with the goods, another 
 by the post or other conveyance, and one he retains for 
 his own security. It is desirable that the master should 
 have another for his own use. 
 
 The word primage denotes a small payment to the 
 master for his care and trouble, which he is to receive to 
 his own use, unless he have otherwise agreed with 
 his owners. 
 
 The word average in this place denotes a claim re- 
 served against the receiver of the goods and which is 
 divided pro rata between the owners of the ship and the 
 
BILL OF LADING. 393 
 
 proprietors of the cargo, for small items of expense, 
 such as towing, pilotage &o., when incurred for the ge- 
 neral benefit. 
 
 The master should he careful not to permit the inser 
 tion of statements, in the Bill of Lading, at variance with 
 the fact, for, by so doing, he may bind his owners and 
 become himself responsible to them, and to other par- 
 ties. In Hastings v. Pepper, 11 Pick., 43, Mr. C. J. 
 Shaw said, " It may be taken to be perfectly well estab- 
 lished, that the signing of a Bill of Lading acknowledg- 
 ing to have received the goods in question, in good order 
 and well conditioned, is prima facie evidence, that as to 
 all circomstances, which were open to investigation and 
 visible, the goods were in good order ; but it does not 
 preclude the carrier from showing, in case of loss or 
 damage, that the loss proceeded from some cause which 
 erilLted, but was not apparent, when he received the 
 goods, and which, if shown satisfactorily, will discharge 
 the carrier from liability. But in case of such loss or 
 damage, the presumption of law is, that it was occasion- 
 ed by the act or default of the carrier, and of course the 
 burden of proof is upon him to show that it arose from 
 a cause existing before his receipt of the goods for car- 
 riage, and for which he is not responsible." Where by 
 the bill of lading, the goods are to be delivered in good 
 order, the dangers of the seas excepted, and they are 
 found to be damaged, the burden of proof is on the ship- 
 owner to show that the injury was caused by one of the 
 excepted causes. Clark v. Barnwell, 12 Howard, 272. 
 If there be a clean bill of lading, that is, if it be silent 
 as to the mode of stowing the goods, and contain no 
 
394 CARRIAGE OF GOODS. 
 
 exceptions to the master's liability, but the usual one of 
 the dangers of the seas, or if there be a charter-party in 
 the like form, the law presumes that the goods are to be 
 carried under deck. The usual and only safe mode of 
 carrying goods, is under deck, and when the contract is 
 entered into, it is presumed to be the intention of the 
 parties that the goods shall be stowed and carried in 
 the usual way, unless there be a special agreement to 
 the contrary. This is a condition that is silently un- 
 derstood by the parties and implied by the law. A Bill 
 of Lading, therefore imports, unless the contrary appear 
 on its face, that the goods are to be safely secured under 
 deck. And no usage can be permitted to control, vary 
 or contradict this meaning. The Waldo, Davies' R., 160; 
 Vernard v. Hudson, 3 Sumner's R., 405. 
 
 Bills of Lading are transferable by endorsement, and 
 may thus pass the interest and title in the property. 
 Conard v. The Atlantic Ins. Co.,1 Peters' R., 445. 
 Strictly speaking, no person but the consignee can, by 
 any endorsement on the Bill of Lading, pass the legal 
 title to the goods. But if the shipper be the owner, and 
 the shipment be on his own account and risk, although 
 he may not pass the title by virtue of a mere endorse- 
 ment of the Bill of Lading, iinless he be, the consignee, 
 or the goods be delivered to his order ; yet by assign- 
 ment on the Bill of Lading, or by a separate instrument, 
 he can pass the legal title in the same ; and it will be 
 good against all persons except purchasers, for a valua- 
 ble consideration, without notice, by endorsement on 
 the Bill itself Such an assignment by the owner pass- 
 es the legal title against his agents or factors and credi- 
 
BILL OP LADING. 395 
 
 tors, in favor of the assignee. Conard v. Atlantic Ins. 
 Co., 1 Peters' R., 445; Stubbs v. Lund, 7 Mass., 453; 
 Ilsley V. Stubbs, 9 Mass., 65 ; Walter v. Rose, 2 Wash. 
 C. C. R., 283 ; Stanton v. Eager, 16 Pick., 473. 
 
 The assignee of a Bill of Lading, claiming and receiv- 
 ing goods under it, is bound by the terms of it, not only 
 as to the amount of freight but also for the demurrage, 
 and there is a sufficient consideration arising on the 
 claim of the goods by him, from which the law will in- 
 fer a promise by him to pay such demurrage, as well as 
 freight. 
 
 The Bills of Lading are evidence against the master 
 or the owner of the ship, not only as to the reception of 
 the merchandise, but as to any material fact stated in 
 them respecting the quantitj'" or quality, or any other 
 element in the description of the goods. It is therefore 
 usual, when there is the least reason to suspect the 
 quantity is not right, or that there is any damage in the 
 goods, to write in the Bill of Lading : 
 
 If Hemp, Flax, bars of Iron Sfc, 
 " Quantity and conditions unknown ; and three bundles 
 of hemp in dispute ; if on board, to be delivered." 
 
 If Linen, Yarn, Bales, Hardware Sfc, 
 " Insides and contents unknown to." 
 
 If Tar, Wines, Brandy, Turpentine, Flour Sfc, 
 " Contents and conditions unknown ; not to be account- 
 able for leakage; and it is agreed that the freight 
 shall be paid for the quantity shipped." 
 
896 carriage op goods. 
 
 Goods carried on Deck. 
 When any goods are to be carried on deck, it should 
 be expressed in the Bill of Lading. 
 
 If articles he of a perishable nature, 
 " Not to be accountable for loss by natural decay of the 
 articles ; and freight to be paid for the articles ship- 
 ped." 
 
 In Clarh v. Barnard, 12 Howard, 272, the Bill of La- 
 ding contained the usual clause that the boxes contain- 
 ing the goods were shipped in good order, " contents un- 
 known." The court said : " It is obvious, therefore, 
 that the acknowledgment of the master as to the condi- 
 tion of the goods when received on board extended only 
 to the external condition of the cases, excluding any im- 
 plication as to the quantity or quality of the article, con- 
 dition of it at the time received on board, or whether 
 properly packed or not, in the boxes." See also, Vern- 
 ard V. Hudson, 3 Sumner, 405. But even if the Bill of 
 Lading do not contain these words, evidence is admissi- 
 ble to show that the goods were damaged at the time 
 they were received by the carrier, though such damage 
 were not apparent. The Colombo, U. S. C. C, N. York, 
 19 Law Reporter, 376. 
 
 The master is bound to deliver, and the shipper is 
 bound to pay ; nor can the master demand his freight, 
 without being ready to deliver the goods on payment of 
 it, nor can the shipper demand his goods without a ten- 
 der of the freight. The usual clause in the Bill of Lad- 
 ing, that the goods are to be delivered on payment of 
 freight shows that these two acts are concurrent, and 
 
DELIVERY OF THE GOODS. S97 
 
 that neither party can sue on the contract without an 
 offer to perform his part of it. Thus in Lane v. Penni- 
 man, 4 Mass., 91, Parsons, C. J., says ; "Although the 
 master may retain the cargo until the freight be paid or 
 tendered, yet he must be ready to deliver the cargo on 
 payment of tender. But if the bargain be that freight 
 shall be paid in so many days after arrival and delivery 
 of the goods, this is held to mean that the goods are to 
 be delivered first, and at a future day the freight is to 
 be paid. 
 
 Delivery of the Goods. 
 
 The general rule applicable to carriers and other 
 persons contracting to deliver goods, is that a personal 
 delivery is necessary. But this rule does not apply to 
 the case of ships, the usages of trade having constituted 
 a delivery on the wharf with notice to the consignee 
 sufficient. The delivery must be on a wharf which is 
 suitable for the cargo which is to be placed upon it ; if 
 the goods be injured in consequence of the insufficiency 
 of the wharf, the vessel is liable as if no delivery had 
 taken place. The bark Majestic, U. S. D. C, N. York, 
 10 Legal Observer, 100. In this case a cargo of iron 
 was unloaded on a spile dock, the master having notice 
 that it was not strong enough to sustain it, and the ves- 
 sel was held liable for the injury sustained, by the wharf 
 breaking through. And although the liability of the 
 carrier may cease by the goods being put on the wharf, 
 yet if they be taken on board again his liability revives. 
 The Huntress, Davies, 82. 
 
 The goods must not be piled on the wharf promiscit- 
 
g98 CAERIAGE OF GOOfiS. 
 
 ously with those of other consignees, but the master 
 must, as far as possible, separate the different consign- 
 ments, so as to render them accessible to their respect- 
 ive owners. The ship Middlesex, U. S. C. C, Mass., 
 May term, 1857, Law Reporter, 14. In all cases the 
 master is required to give notice to the consignee of the 
 arrival of the vessel, and of his readiness to discharge 
 cargo; and knowledge, therefore, casually acquired that 
 the vessel has arrived and will discharge her cargo at a 
 particular wharf, is not enough. Golden v. Manning, 
 3 Wilson, 429 ; The ship Middlesex, 21 Law Reporter, 
 14. After the goods are on the wharf the consignee has 
 a reasonable time in which to inspect them, and deter- 
 mine whether or not he will accept the consignment. 
 Till he do accept, he is not liable for freight. If he 
 refuse to accept he incurs no liability, and the master 
 cannot leave the goods to perish, but is bound to store 
 them for the owner. Arthur v. schooner Cassius, 2 
 Story, 81 ; Ostrander v. Brown, 15 Johns, 39 ; Chick- 
 ering v. Fowler, 4 Pick., 371. The delivery must be 
 on a proper day as regards the weather, and must also 
 be on a business day, and at a proper hour of such day ; 
 and a clerk or truckman in the employment of the con- 
 signee has no authority to bind the latter to receive the 
 goods at an unusual time ; and the liability of the ves- 
 sel continues till the consignee has had that reasonable 
 time to examine the goods to determine whether he will 
 accept them or not as spoken of above. In general, the 
 delivery must be reasonable, in time, place and circum- 
 stance. Price V. Powell, 3 Comst, 322, which was an 
 action brought by the consignor, it was held, that the 
 
DEIIVERT OF THE GOODS. 399 
 
 liability of the carrier continued until the consignee 
 had had a reasonable time, in which to take away the 
 goods. Notice was given late in the evening, and it 
 was held that the consignee was not obliged to take 
 away the goods before the next day, and that if they 
 were injured in the night while on the wharf, the car- 
 rier was liable. So in Segura v. Reed, 3 La. Ann, 695, 
 which was also an action by the consignor, after the 
 delivery on the levee, and notice to the consignees, some 
 of the goods were stolen. The court said : " The con- 
 tract of the vessel is to deliver the goods to the con- 
 signee, and the responsibility continues until there be 
 an actual delivery, or some act which is equivalent to 
 or a substitute for it. Even asstiming the general rule 
 to be, that putting the goods on the wharf discharges 
 the vessel, where there has been a notice to the con- 
 signees of the time and place of delivery, it seems to us 
 that this rule is not to be applied with such rigor against 
 the consignee as to put the goods unqualifiedly at his 
 risk from the very instant of landing them, when he has 
 made repeated calls for them during the day, and the 
 discharge is not made until an advanced hour of the 
 day." The consignee in this case received notice be- 
 tween twelve and one o'clock on Saturday, and went 
 himself, and sent his clerk at three, to receive the cot- 
 ton. It was not then delivered, and nothing was said 
 in regard to the time when it would be delivered. It 
 was put on the levee at four o'clock on that day. On 
 Monday ten bales were missing. The carrier was held 
 liable. 
 
 It has been held that a usage to deliver goods with- 
 
400 CARBIAGE OP GOODS. 
 
 out notice may be shown. Gibson v. Culver, 4 Wend, 
 305. Whatever the law may be in regard to a usage, 
 it is clear that the parties may make a special contract 
 in regard to the manner of delivery. The Grafton, 01- 
 cott Adm, 43. 
 
 A question of some difficulty has arisen, whether the 
 contract of the ship-owner or master be so far an entire- 
 ty that their liability continues till the whole consign- 
 ment be out of the ship and ready for delivery. The 
 better opinion seems to be, that if the consignee were 
 notified that a part was ready for delivery, he would be 
 obliged to take that part, arid could not recover if, be- 
 fore all the goods were out, some were burned or other- 
 wise destroyed or injured, on the wharf 1 Parsons^ 
 Mar. Law, 157. The question came before Mr. Justice 
 Sprague, in the case of Paine v. Bowker, U. S. D. C, 
 Mass., 1856. Three hundred and forty-nine barrels of 
 flour were consigned to a firm in Boston. On the twenty- 
 sixth of the month the consignees were notified that the 
 ship would unload that day, and the greater portion of 
 the flour was landed on the wharf. The next morning 
 twelve more barrels were landed. In the afternoon eve- 
 ry thing on the wharf was destroyed by fire. All the 
 flour, with the exception of three barrels which were af- 
 terwards tendered to the consignee, but not accepted, 
 was on the wharf at the time of the fire. It was con- 
 tended that the consignee was not bound to take away 
 any of the barrels, till the whole was delivered, but the 
 court decided otherwise, and held, that the ship had 
 earned her freight. 
 
 The present usage in Boston as to the delivery of cax- 
 
DELIVERY OF TEE GOODS. 401 
 
 go, was stated by Lowell, J. U. S. D. C, Mass, October 
 term, 1866, in the case of The brig E. H. Tuttle, Dan- 
 iel N. Spooner, Treasurer of the Great Falls Manufg. 
 Co., Lihellant. The libel was for damages alleged to 
 have been occasioned by a refusal of the master of the 
 brig to land the libellant's goods at East Boston. The 
 libellant's agents at New Orleans shipped cotton to him 
 at Boston, under the ordinary bill of lading. The brig 
 arrived in the harbor on a Saturday night, and on Sun- 
 day her agents at Boston sent an order to the master to 
 haul to Union wharf, which he did early on Monday. 
 Soon after he had made fast, and discharged his tug- 
 boat, he received an order from the lihellant to haul to 
 Grand Junction wharf at East Boston, which he refused 
 to do. Some negotiation was had on that day and the 
 next, between the libellants and the agents of the ves- 
 sel ; but the cotton was eventually landed at Union 
 wharf, and was received by the consignee without any 
 waiver of his rights, and he brought suit to recover as 
 damages, the expenses of trucking his goods, which 
 was equal to about one-third the amount of his freight. 
 The lihellant owned the greater part in bulk and 
 value of the whole cargo, and was to pay the major 
 part of the whole freight; but there were several 
 other consignments of cotton, tobacco and hides to 
 several persons. Lowell, J. said " This case has been 
 carefully presented in evidence and argument. The 
 question is, what are the respective rights and du- 
 ties of the carrier and the consignees as to the wharf 
 at which goods shall be landed by a general ship ? 
 The dicta of Mr. Justice Buller, and the other judges 
 26 
 
402 CAERUGE OF GOODS. 
 
 in Hyde v. Trent and Mersey Navigation Company, 
 5 G. R., 389, 397, are cited in all succeeding books, as 
 the foundation of the law upon this subject. 'A ship,' 
 says Judge Buller, 'trading from one port to another, 
 has not the means of carrying the goods on land ; and, 
 according to the established course of trade, a delivery 
 on the usual wharf is such a delivery as will discharge 
 the carrier.' When the case came up for adjudication 
 in England, it was decided in the Common Pleas, the 
 Exchequer Chamber and the House of Lords, that the 
 carrier is bound to deliver to the consignee ; and, if he 
 intend to rely on a substituted delivery, he must plead 
 that his delivery was according to the practice and cus- 
 tom usually observed in the port or place of delivery. 
 Gatliffe v. Bourne, 4 Bing. (N. C.) 314, 3 M. & G., 641, 
 7 M. & G., 850. And so is the weight of modern au- 
 thority. Abbott on Shipping (8 Eng. Ed.), 378. Hum- 
 phreys y. Reed, 6 Whart, 435; Ostranderv. Brown, 
 15 Johns, 39 ; Hemphill v. Chenie, 6 Watts & S., 62; 
 Wardell v. Mourilian, 2 Esp. R. 693. Angell on Car- 
 riers, §298 et seq. It has been recognised as the usage 
 of Boston and other ports, for the master of a general 
 ship to go to a suitable wharf, and notify the consignees, 
 who take their goods from the wharf The Tangier, 
 21 Law. Rep. 8 ; Cope v. Cordova, 1 Rawle, 203. So 
 that the general rule is now. settled, that such a delive- 
 ry is sufficient. But the precise point in this case, 
 namely, what is the usual wharf, and who is to point it 
 out, was not directly involved in these or any other de- 
 cision, that I have seen. The libellant ofiers evidence 
 to show, that, by the usage of Boston, the consignees 
 
DELIVEBY OF THE GOODS. 408 
 
 have the right to order the master to go to any commo- 
 dious or suitable wharf, and his witnesses concede, that, 
 exceptiag in some particular trades not now involved, if 
 no such order be given, he may choose for himself This 
 concession avoids the effect of a considerable part of the 
 claimant's evidence, which showed, as do some of the 
 decisions incidentally, that the master of a general ship, 
 with an assorted cargo for several consignees, does not 
 usually, and cannot conveniently, stop to collect the 
 votes of his consignees before proceeding to haul in. It 
 appeared in evidence that there are many cases, as 
 where the cargo is heavy or perishable, in which it is of 
 the greatest consequence to the consignees whether their 
 goods be landed at one place or another ; and, that, gen- 
 erally speaking, it is a matter of no proper concern to 
 the master. It appears that masters are in the habit of 
 going to the wharf at which the best terms are offered 
 in ' return wharfage,' as it is called ; but, as the cargo 
 pays the wharfage, any commission or per centage on its 
 amount ought to belong to the owners of the cargo ; and 
 no court could allow this to be a valid reason for giving 
 the choice of place to the master. A single consignee 
 of a heavy cargo coming coastwise may find his cartage 
 equal in amount to his whole freight. Take a cargo of 
 iron rails, ordered by a rail way company that has its 
 wharf and track at the north end of the town, is it rea- 
 sonable that the master should, for the sake of a petty 
 per centage on what the company itself pays, land the 
 cargo at South Boston, where ships may be scarce, and 
 return wharfage high, against the known wish of the 
 owners of the goods ? This statement of the interest of 
 
404 
 
 CARRIAGE OF GOODS. 
 
 the parties of itself exhibits their rights, at least where 
 there is but one consignee, or where the consignees are 
 unanimous ; for it may safely be laid down as a propo- 
 sition of law, that, as between two points within the 
 port equally convenient for the carrier, he must deliver 
 at the most convenient for the consignee, if duly appris- 
 ed of the facts. It would be for the carrier to show a 
 usage to the contrary, and then to establish its reason- 
 ableness. In the case of one consignee of the whole car- 
 go, having his place of business at the port, and readily 
 accessible, it might be worthy of serious consideration, if 
 the case were not now before us, whether the master 
 must not consult with him at all events. Where there 
 are several consignees, the case is different. The master 
 "cannot conveniently consult them, and is not bound to 
 do so. Here the evidence shows the course of trade to 
 be, that the majority, that is, those who together pay 
 more than half the freight, have the right to choose the 
 wharf. This is reasonable, because it is of no special 
 moment to the minority whether the master or the ma- 
 jority choose a suitable wharf; and it is as convenient 
 and just a mode of ascertaining the majority as any 
 other. The merchants appear to be unanimous about 
 it. It being shown, however, that, in case of a general 
 ship, this right is often unimportant, and is waived, and 
 is presumed to be waived unless notice be given ; and 
 this whether one person alone, or several together, con- 
 stitute the majority, the consignees ought to be careful 
 to give their notice in due season. The vessel had her 
 agent in Boston, who, in good faith, engaged the berth 
 at Union wharf, and the vessel was hauled in, and 
 
DELIVERY OF THE GOODS. 405 
 
 made fast, and her tug was discharged. I cannot tell 
 what inconvenience and damage might result to a ship 
 in changing her herth after that period. The libellant 
 should have found the agent or the master earlier. It is 
 not reasonable to expect them to change their arrange- 
 ments after they have gone so far. What is seasonable 
 notice will depend on the facts of each case. Here it 
 was too late. It is to be understood that the usage was 
 not alleged to apply where any peculiar and important 
 inconvenience to the ship would be promoted by her go- 
 ing to a particular wharf. No point of that sort was in 
 controversy." 
 
CHAPTER X. 
 
 EARNING AND PAYMENT OF WAGES. 
 
 In case of Shipwreck — That seamen are entitled to 
 their wages 'or a compensation equivalent to their wa- 
 ges, by way of salvage, in case they do their duty and 
 sufficient be saved from the wreck for that purpose, was 
 decided many years ago by the American courts, and 
 seems now fully established. 
 
 It was so held by Judge Winchester, in a case cited 
 in 1 Peters' Adm., 186, note ; and by Judge Peters, in 
 Giles V. The Cynthia, 2 Peter's, 203 ; Weeks v. The 
 Catharine Maria, Ibid, 424 ; Taylor v. The Goto, 1 
 Peters' Adm., 48, 58. 
 
 All the authorities of the Maritime law agree that, in 
 cases of wreck, where parts of the ship are saved, by the 
 exertions of the seamen, they have a lien on what is 
 thus saved for some kind and extent of compensation. 
 The doubt in these cases has been, whether it was to be 
 a compensation in the nature of salvage for their exer- 
 tions in saving the property and to be confined to that, ■ 
 or whether the case of shipwreck constituted a special 
 
EAKNING AND PAYMENT OF WAGES. 407 
 
 exception to the rule that freight must have been earn- 
 ed, to entitle to wages, and thus preserved the lien for 
 the whole wages antecedently earned, with perhaps an 
 additional compensation in the nature of salvage. The 
 authorities bearing upon this question are not very clear. 
 
 The Supreme Coiirt of Massachusetts and that of New 
 York, have inclined to treat the lien as arising by way 
 of salvage. Frothingham v. Prince, 8 Mass. R., 568; 
 Coffin V. Storer, 5 Mass. R., 252 ; 2 Davies' Abridg., 
 462; In Dumett v. Tomhaghen, 3 Johns' R., 154, where 
 a ship was abandoned at sea as a wreck, on her home- 
 ward voyage, and some part of her cargo was saved by 
 the ship's crew in the boat, the court held, that no wages 
 were due for that part of the voyage, though the sea- 
 men might have an equitable lien on the goods saved 
 for a compensation, in the nature of salvage. 
 
 In the District Court of Maine, Judge Ware has re- 
 cognised the doctrine that the wreck is pledged by the 
 maritime law for the payment of wages ; but he holds 
 that the seamen are not entitled, if the materials be 
 saved by other persons ; that the original contract by 
 which the seaman is bound to the vessel, is not dissolv- 
 ed by the shipwreck, as long as the seamen remain by 
 it, but that it is dissolved if they abandon it. Lewis v. 
 The Elizabeth Sf Jane, Ware's R., 41. 
 
 In the Circuit Court of the District of Massachusetts, 
 the allowance was put upon the ground of salvage, ad- 
 opting the wages earned as a measure, in ordinary cases, 
 leaving an additional recompense to be made for cases 
 of extraordinary merit. The Two Catharines, 2 Ma- 
 son's R., 319 ; see also, The Saratoga, 2 Gallis' R. 
 164, 183. 
 
408 EAENING AND PAYMENT OF WAGES. 
 
 In the case of Pitman v. Hooper, 3 Sumner's R., 50, 
 Judge Story remarks : "In the case of shipwreck dur- 
 ing the voyage, the seamen, if they remain by the ship 
 and assist in the salvage, will be entitled to receive their 
 wages out of the proceeds of the wreck, if enough be 
 saved to pay them, even though the entire freight be 
 lost by the total destruction and loss of the cargo. This 
 exception is, doubtless, designed to enlist the zeal and 
 exertions of the seamen in the preservation of the pro- 
 perty, as far as possible ; and it is founded upon the 
 same policy as the general rule ; that is to say, to make 
 it their interest to use every endeavor to save the pro- 
 perty and to promote the success of the voyage. Whe- 
 ther this exception be to be expounded upon the ground 
 of its being an allowance to the seamen in the nature of 
 salvage, or whether it be a mere dry exception to enforce 
 the public policy of the original rule, has been a topic 
 of some judicial discussion. But whether it stand up- 
 on the one ground or the other, it is an exception now 
 firmly established. What I rely on, in regard to this 
 exception is, that it establishes a case in which, though 
 the entire freight be lost, the seamen recover their full 
 wages out of the wreck of the ship, without any deduc- 
 tion pro rata on account of the value of the materials of 
 the ship, which have perished. The entire wages con- 
 stitute in this case, a privileged lien, to be first paid ; 
 and the owner must submit to the entire loss, without 
 any contribution towards his own loss." 
 
 In the case of Jones v. The wreck of the Massasoit, 7 
 Law Rep., 522, Judge Sprague remarks, that to allow 
 mariners, in case of shipwreck to claim as salvors, 
 
EARNING AND PAYMENT OF WAGES. 409 
 
 " would not only be inconsistent with the contract of 
 hiring, but a startling violation of that principle of mari- 
 time policy, which sedulously endea^vors to bind up the 
 interest of the mariner with that of the owner. It would 
 be not only an inducement to relax his efforts in time of 
 difficulty and danger, but a direct temptation to cause 
 shipwreck and disaster that he might successfully claim 
 the large rewards of salvage service." See The Rebec- 
 ca, 2 W. Rob, 122. There may, however, be extraordi- 
 nary cases in which seamen may become salvors of 
 their own vessel, as stated by Lord Stoioell, in The 
 Neptune, 1 Hagg. Adin., 227, 237 ; and by Mr. Justice 
 Story, more liberally in the Two Catharines, 2 Ma- 
 son, 219 ; and as in The Blair eau, 2 Cranch., 240, 269, 
 270. 
 
 Judge Marvin, in his valuable work on Wreck and 
 Snlviige, §149, says, " Whether a seaman can ever be- 
 come a salvor for services rendered to his ship or to the 
 cargo, in any extremity of distress or danger, is a ques- 
 tion upon which great Judges have differed. I shall 
 not enter into the discussion of the question, but will 
 state, as briefly as I can, what appears to me to be the 
 result of the weight of authorities on the subject. The 
 policy of the marine law binds up the interest of the sea- 
 men with the safety of the ship. Hence the maxims, 
 ' Freight is the mother of wages,' and ' The safety of 
 the ship is the mother of freight.' The same policy has, 
 however, dictated exceptions to these maxims. Ship- 
 wreck does not discharge the crew from the obligations 
 of their contract, but they are bound by the nature 
 of their engagements, in their character of seamen, to 
 
410 EARNING AND PAYMENT OF WAGES. 
 
 obey the master's orders, and to remain by the ship or 
 wreck, afloat or ashore, as long as there is a reasonable 
 hope of saving any thing without too much hazard of 
 life, and to exert themselves to the utmost to save the 
 ship or its materials and cargo. If they refuse to do 
 their duty, on such anoccasion, they forfeit their wages. 
 If they save or assist to save the materials or cargo, or 
 are ready and willing to assist and be prevented by 
 sickness or other just cause, or by the master or owner, 
 without their fault, they have a lien upon, and are enti- 
 tied to be paid their wages, antecedently and concur- 
 rently earned, out of, all the materials so saved and out 
 of the freight. Their lien upon these and every part of 
 them attaches as a privileged hypothecation tota in toto 
 et tota in quilihet parte, or, as it has been emphatically 
 expressed, ' to the last plank of the ship and the last 
 payment of the freight', and this by virtue of their ori- 
 ginal contract and their performance under it. If the 
 ship be lost and no materials be saved, or not enough to 
 pay their full wages, and they save the cargo or any 
 part of it, and yet no freight be earned in consequence of 
 the non-delivery of the cargo, or, if earned, be insufficient 
 to pay their full wages ; they are entitled to be paid, 
 not wages, eo nomine, accruing for antecedent services 
 (for the cargo is not liable for wages except quoad the 
 freight due upon it), but a reasonable compensation pro 
 opere et labore,m the nature of salvage for their servi- 
 ces in saving the cargo — to be paid out of the cargo so 
 saved by them. But they cannot entitle themselves to 
 a salvage reward for any services they may render the 
 ship or cargo within the line of their duty, however per- 
 
EARNINa AND PATMBNT OF WAGE8. 411 
 
 ilous or severe the labor, while their connection with the 
 ship continues." 
 
 In the case of The Dawn, 26 Amer. Jur., 216 S. C, 
 Davies' Rep., 121, it was held, that in case of shipwreck, 
 the seamen are, by the maritime law, bound to remain 
 by the vessel, and exert themselves to save all that is 
 possible of the ship and cargo. When they do this, they 
 are entitled to full wages, without deduction, against 
 the material which they save of the ship, if enough be 
 saved to pay them. Aijid they are entitled to a further 
 reward, in the nature of salvage, against the whole mass 
 of property saved. Their claim is not as general or vol- 
 unteer salvors, nor are they entitled to an equally large 
 salvage ; but they are entitled to a reasonable allow- 
 ance, pro opere et labore, according to the circumstan- 
 ces of the case and the merits of their services. When 
 the disaster happens in foreign ports, this ought not to be 
 less than the expenses of their return home. 
 
 Where the vessel is wrecked on her outward voyage. 
 If the ship and cargo be entirely lost on the outward 
 voyage, so that no freight be earned, the seamen are not 
 entitled to any wages. In such case, however, the ad- 
 vance wages are not to be returned. 4 Mason, 102; 3 
 Sumner's R., 286. 
 
 Where the vessel is wrecked on her homeward voy- 
 age. If the ship and cargo be entirely lost on the 
 homeward voyage, so that no freight on the return car- 
 go be earned, the seamen are entitled to wages up to the 
 time of the ship's arrival at the port of delivery or des- 
 tination on the outward voyage, and for one-half the 
 
412 EAKNINQ AND PAYMENT OF WAGES. 
 
 time she lies there ; for one-half the time during which 
 the vessel is lying in port is deemed to belong to the 
 outward Toyage, and the other half to the homeward 
 voyage. 3 Sumner's R., 286 ; 1 Peters' Adm. R,, 215 ; 
 1 Peters' C. C. R., 182. 
 
 If, in such case, the vessel had performed her out- 
 ward voyage in ballast, and thus not earned any freight, 
 the seamen would still be entitled to their wages for the 
 outward voyage, and half the time she lay in port. 2 
 Mason, 331. 
 
 Where the vessel is wrecked between intermediate 
 ports. — Where a vessel stops at several ports on her 
 voyage for the purpose of receiving or delivering goods, 
 as is usually the case in trading voyages, and the vessel 
 and cargo are lost between the intermediate ports, the 
 rule is that the seamen are entitled to wages up to the 
 last port of discharge or receipt of cargo, before the loss 
 of the vessel, and for half the time the ship lies there. 
 Johnsons. The Waterstorff, 1 Peters' Adm. R., 215; 
 Galloway v. Morris,^ Yeates, 445 ; Thompson v. Faw- 
 sett, 1 Peters, C. C. R. 182 ; Lindsay v. The South Ca- 
 rolina, Rees' Adm. R., 173. 
 
 Where part of the freight has been earned, though the 
 vessel be wrecked. — If, in case of shipwreck, or loss from 
 any other cause, a part of the cargo be saved, and carried 
 to the port of destination, so that part of the freight be 
 earned, or jf, from any cause, some portion of the freight 
 money be saved, the sailors are entitled to full wages, 
 
EAENINa AND PAYMENT OF WAGES. 413 
 
 provided sufficient freight hnve been earned to pay them, 
 or if it be not sufficient, then to the extent of the freight 
 earned. 3 Sumner's R., 69. Thus, if the ship should 
 become a total wreck on the outward voyage, yet if, by 
 reason of a portion of the cargo being saved, or from any 
 other cause, the owners should become entitled to some 
 portion of the freight, the sailors have a right to be paid 
 out of the freight earned, if sufficient, their full wages 
 for the outward voyage. 
 
 Where a part of the loreck is saved. — In cases of ship- 
 wreck, seamen are entitled to full wages, when, by their 
 exertions, remnants of the wreck to the amount of their 
 wages are saved, although no freight be earned. If 
 the wreck will not bring enough to pay full wages, then 
 the seamen are entitled to wages to the extent of the 
 value of the wreck. In order to entitle seamen to wages 
 from the proceeds of the wreck, it must, as we have 
 elsewhere seen, have been saved by their exertions ; if, 
 therefore, they abandon the wreck, and leave it without 
 hope of recovery, or without an intention of returning, 
 and it be afterwards picked up and saved, the seamen 
 cannot claim to have their wages paid out of it, but 
 must lose them. Lewis v. The Elizabeth and Jane, 
 Ware's R. 41. 
 
 If, however, after a vessel is cast ashore, the owner 
 come with a gang cf hands and take charge of the wreck, 
 and do not ask the aid of the sailors, they being willing 
 to render it, they may recover their wages in an action 
 against the remnants of the vessel. 
 
414 EAENING AND PAYMENT OF WAGES. 
 
 Where freight is not earned in consequence of the acts 
 of the owner or master. That circumstance does not 
 deprive the mariner of his wages. A condemnation for 
 illegal trading, in which the mariners are not implicated, 
 does not work a forfeiture of their wages nor bar them of 
 their action against the owners. The Malta, 2 Hagg. 
 Adm. R, 158. 
 
 Where a vessel is sent out upon a seeking voyage in 
 search of freight, and obtains none. The seamen are 
 entitled to their wages. And if she arrive home in safe- 
 ty, the seamen, by their contract, have a lien on the ves- 
 sel, and may proceed in rem. Lady Durham, 3 Hagg. 
 Adm. R., 196. So too, if the ship perform her voyage 
 without the owner having furnished any cargo, or if 
 there be a special contract between the owner and freigh- 
 ter. Pitman v. Hooper, 3 Sumner's R., 286. The set- 
 tled doctrine is, that seamen are entitled to wages, for 
 the full period of their employment in the ship's service 
 for any particular voyage, in which freight is or might 
 be earned by the owner. 
 
 Where the voyage is broken up after it has been com- 
 menced,at any intermediate port, by the voluntary act of 
 the master or owner. If, after the hiring of the seamen, 
 the owners of the ship abandon the intended voyage, or 
 if it be broken up from any cause not arising from the 
 fault or misconduct of the crew, they are entitled to re- 
 ceive wages in the nature of damages, the amount being 
 discretionary and controlled by the circumstances of the 
 particular case. If the voyage be broken up after it 
 
EARNING AND PAYMENT OP WAGES. 415 
 
 has been commenced, by the voluntary act of the mas- 
 ter or owner, or by their default, wages are due for the 
 whole voyage. Wolf v. The brig Ober, 2 Peters' Adm. 
 R., 261. 
 
 Wages, how affected by the capture of the ship. The 
 capture of a merchant ship does not itself operate, as a 
 dissolution of the contract for mariner's wages, but at 
 most a suspension only, of the contract. If the ship be 
 restored and perform her voyage, the contract is revived, 
 and the mariner becomes entitled to his wages ; that is, 
 to his full wages for the whole voyage, if he have remain- 
 ed on board and done his duty, or if, being taken out, 
 he have been unable, without any fault of his own, tore- 
 join the ship. If the ship be condemned by sentence of 
 condemnation, then the contract is dissolved, and the 
 seamen are discharged from any further duty on board ; 
 and they lose their wages, unless there be a subsequent 
 restitution of the property, or of its equivalent value, 
 upon an appeal, or by treaty, with an allowance of 
 freight, in which event the claim for wages revives. In 
 the case of a restitution in value, the proceeds repre- 
 sent the ship and freight, and are a substitute therefor. 
 If freight be decreed or allowed for the whole voyage, 
 then the mariners are entitled to full wages for the whole 
 voyage ; for the decree of freight, in such a case, in- 
 cludes an allowance of the full wages, and, consequent- 
 ly, creates a trust or lien to that extent thereon, for the 
 benefit of the mariners. If the freight decreed or allow- 
 ed be for a part of the voyage only, the seamen are ordi- 
 narily entitled to wages up to the time for which the 
 
416 EARNING AND PAYMENT OF WAGES. 
 
 freight is given, unless under special circumstances ; as 
 where they have remained by the ship, at the special 
 request of the master, to preserve and protect the prop- 
 erty for the benefit of all concerned. Broion v. Lull, 
 2 Sumner's R., 443 ; Spafford v. Dodge, 14 Mass. 66. 
 
 If a ship on her outward voyage be seized and carried 
 into any port out of the course of her voyage, and be af- 
 terwards restored to the master, and arrive safely at her 
 port of delivery, the seamen are entitled to receive their 
 wages for the whole time of such detention, although 
 the ship be lost on the return voyage. Hooper v. Perley, 
 11 Mass., 545. 
 
 If a ship be detained in like manner on her home- 
 ward voyage, and be afterwards lost, the seamen lose 
 their wages for the time of such detention as well as for 
 all the other time consumed on the homeward voyage. 
 Hooper V. Perley, 11 Mass. E,., 545. 
 
 Wages, how affected hy the sickness of the seamen du- 
 ring the voyage. If a seaman become sick, or disa- 
 bled during the voyage, so as to be unable to perform 
 his voyage, and not from his own criminality or fault, 
 he is entitled to full wages during the continuance of 
 the disability, the same as if he were able to render ser- 
 vice. The ship Hazard, Bee's Adm. R., 441. 
 
 But if a seaman contract for a particular service or 
 duty on board a vessel, and it turn out that he has not 
 the capacity to fulfil his engagement, or from want of 
 knowledge, or health, or fidelity, he imperfectly per- 
 form it, the master may, in the one case, deny wages 
 altogether, and in the other make a reasonable deduc- 
 
EARNING AND PAYMENT OF WAGES. 417 
 
 tion according to the circumstances. And where from 
 want of capacity or fidelity, the seaman is disqualified 
 for the service he has stipulated to perform, the master 
 will be justified in putting him upon a different duty. 
 Atkyns V. Burrows, 1 Peters' Adm. R., 247 ; Sherioood 
 V. Mcintosh, Ware's R., 109. 
 
 Wages, how affected by death during the voyage. 
 The point as to the right of wages, where the seaman 
 dies during the voyage, has been several times decided. 
 It has been invariably admitted, that the wages were 
 due and payable up to the death of the seaman. But 
 whether the wages were due for the whole voyage, has 
 been a vexed question, upon which learned Judges have 
 greatly differed in opinion. Judge Peters in the Dis- 
 trict Court of Pennsylvania, held in several cases that 
 the wages were due to the end of the voyage, as if the 
 mariner had lived and performed his duty. Walton v. 
 The Neptune, 1 Peters' Adm. R., 142; Scott y. The 
 Gree?iwich, Ibid, 155 ; Jackson v. Sims, Ibid, 157. One 
 of these decisions was affirmed by Mr. Justice Washing- 
 ton, on appeal. Jacksonr. Sims, 1 Wash. C. C. R.,441. 
 Both of these learned judges relied much on the seventh 
 article of the laws of Oleron, which they understood to 
 import full wages for the entire voyage. On the other 
 hand, in the District Court of South Carolina, Judge 
 Bee afterwards held that wages were due to the time of 
 the death only, and that such had always been the re- 
 ceived practice of that District. Cary v. 27ie Kitty, 
 Bee's R., 255. Judge Davis followed in the decision 
 already cited, and on a full and critical examination of 
 27 
 
4l8 EARNING And payment of wages. 
 
 the ancient ordinances, and particularly of the article 
 in the laws of Oleron, held that the wages could not he 
 recovered heyond the death, and that the usage in Mas- 
 sacliusetts had always been so. Natterstrom v. The 
 Hazard, Bee's Adm. R., 441. 
 
 Where a person ships as an ahle-hodied seaman, 
 when in fact he has a fatal disease, of which he dies 
 after the vessel sails, no wages are allowed. 2 Peters' 
 Adm., 263. 
 
 In case a seaman die in a foreign hospital, or on 
 shore or elsewhere than on hoard the vessel, the wages, 
 money and effects, if not already deposited, must be de- 
 livered up to the consul, or commercial agent, nearest 
 to the place where such death occurs. 
 
 Wages, how affected when a seaman is wrongfully 
 discharged. If a master, in violation of his contract, 
 discharge a seaman from the ship during a voyage, the 
 seaman will be entitled to a compensation for the injury 
 according to the circumstances of his own peculiar case. 
 This is ordinarily measured by the loss of time and the 
 expenses of his return to the country where he was ori- 
 ginally shipped. In some cases, wages have been al- 
 lowed up to the prosperous termination of the voyage, 
 and in others, up to the time of the seaman's return to 
 the country where he was originally shipped, without 
 reference to the termination of the voyage. If the sea- 
 man have obtained employment in the mean time, his 
 earnings are deducted, not from his wages, but from the 
 expenses of his return. If the master detain the cloth- 
 ing of the seaman, the value of it may be recovered in 
 
EARNING AND PAYMENT OF WAGES. 419 
 
 the same libel. Emerson v. Howland, 1 Mason's R., 
 45; Hutchinson v. Coombs, Ware's R., 65 ; The Glou- 
 cester, 2 Peters' Adm. R., 403. 
 
 Wages, how affected when seamen are discharged 
 abroad with their own consent, or the ship is sold. — The 
 seaman, would, of course, be entitled to wages up to the 
 time of such discharge ; and, in addition to this, it is 
 provided by the Act of Congress of 28th Feb., 1803, ch. 
 62, that when an American seaman is discharged in a 
 foreign country, with his own consent, it shall be the 
 duty of the master to produce to the consul, or commer- 
 cial agent, the certified list of his ship's company, and 
 to pay to such consul, or commercial agent, three 
 months' pay over and above the wages which may then 
 be due to the seaman. Two of these three months' extra 
 wages are to be paid to the discharged seaman by the 
 consul, upon his engagement on board of any vessel to 
 return to the United States ; the other month's wages 
 to be retained by the consul for the purpose of creating 
 a fund for the payment of the passages of seamen be- 
 longing to the United States, who may be desirous of 
 returning home, and for the maintenance of American 
 seamen who may be destitute in such foreign port. 
 
 This Act has been altered somewhat by the subse- 
 quent Act of Congress of 1840, ch. 48, which authorises 
 any consul of the United States, or if there be none re- 
 siding at the foreign port, then any commercial agent 
 authorised to perform such duties, upon the application 
 of both the master and any seaman of the vessel, to dis- 
 
420 EARNING AND PAYMENT OF WAGES. 
 
 charge the seaman, if he think it expedient, without 
 requiring the payment of three months' wages, or of any 
 extra wages ; and he may discharge him upon such 
 terms as will, in his judgment, save the United States 
 from the liability to support such seaman. 
 
 It has been held that it was not the intention of the 
 Act to comprehend cases of a forced and necessary dis- 
 solution of the contract, as by shipwreck, capture, seiz- 
 ure and forfeiture of the vessel, without the fault of the 
 master or owners, or by any fortuitous occurrence, which 
 human foresight and power could not provide. A dis- 
 charge of the seaman to come within the meaning of the 
 Act, must be a discharge by the voluntary act of the 
 master, and not a mere separation from the vessel by 
 the uiiavoidable breaking up of the voyage by misfor- 
 tune. The Act is supposed to apply to cases where the 
 original object of the voyage is a sale of the vessel in a 
 foreign port. If, however, the vessel be sold in conse- 
 quence of a disaster at sea, the owners will not be ex- 
 empted from the payment of the extra wages, if the ves- 
 sel could have been repaired at a reasonable expense and 
 in a reasonable time, and the burthen of proof, to show 
 that she could not have been so repaired, is upon the 
 owners. The Dawn, Ware's R., 485. 
 
CHAPTER XI. 
 
 PILOTS. 
 
 Duty of the master tvith respect to taking a Pilot on 
 board. — The master on both his outward and homeward 
 voyage, in sailing down rivers, out of harbors, or through 
 roads &c., where, either by the usage or the laws of the 
 country, a Pilot is required, is bound to take one on 
 board. A vessel coming out of a harbor, must have a 
 Pilot on board, because the captain has it in his power 
 always to procure one. But when he arrives off a port, 
 as the law compels no one to perform impossibilities, it 
 requires only that the master use all reasonable efforts 
 to obtain one. In every well appointed port where 
 Pilots are to be had, a vessel arriving upon pilot gi-ound, 
 is bound to make the approach carefully. If in the 
 night, the master must hold out a light for a Pilot, and 
 wait a reasonable time for one, and approach one if he 
 can do it with safety. If he attempt to enter the port 
 without a Pilot, or steer negligently or rashly in ap- 
 proaching the ground, when it is unsafe to navigate 
 without a Pilot, and damage ensue, the underwriters 
 are discharged from liability. 
 
 In rivers, roads &c., where it is not customary to take 
 
422 PILOTS, 
 
 a Pilot on board, the captain or mate, being duly quali- 
 fied, or any other competent person may be relied on. If, 
 however, in such a case, injury arise from want of or- 
 dinary prudence in the navigation of the vessel, the 
 owners are liable to the shippers. Keeler v. The Fire- 
 men! s Ins Co., 3 Hill R. 250 ; Flanigen v. Wash. Ins. 
 Co., 7 Penn. K, 307. 
 
 There can be no doubt as to the duty of the master 
 engaged in a foreign trade to put his ship under the 
 charge of a Pilot, on both his outward and homeward 
 voyage, when he is within pilotage limits. This is a 
 duty he owes to his owners ; and if he fail to take a 
 Pilot, when he might have obtained one, and ground, 
 the underwriters are discharged. And the neglect to 
 take a Pilot, when it ought to be done, will subject the 
 owners to a suit for the damages that may happen to 
 shippers and others by such default. In M. Millan v. 
 V. Ins. Co., 1 Rice's S. C. R., 248, it was held that 
 where the master fails to employ a Pilot to navigate a 
 vessel, in coming into or leaving a port where it is cus- 
 tomary to do so, and a loss happens in consequence of a 
 Pilot not having been employed, the underwriters upon 
 a policy on the cargo would be discharged. But if the 
 vessel pass uninjured, and the loss happen at a point 
 beyond which the Pilot's services cease to be necessary, 
 the assured wduld be entitled to recover. The true prin- 
 ciple was said to be this : If a vessel without a Pilot 
 sustain injury in entering or leaving a harbor where it 
 is customary to have a Pilot, that then such injury 
 does not come within the perils insured against. It is 
 not a peril of the sea ; It is a loss from the bad naviga- 
 
PILOTS. 423 
 
 tion of the vessel, and is to be set down to the fault of 
 the master, and, consequently, the owners would be 
 liable for it. The general rule is, if the owners would 
 not be liable for the loss, that then the insurers are. 
 
 But if no Pilot can be obtained, and the most judi- 
 cious course be for the master to attempt to go into port 
 without one, the owners will not be responsible for a loss 
 happening in consequence of his so doing. Vansyckle v. 
 The sch'r. Thomas Evnng, U. S. D. C, Penn., 3 Law 
 Reporter, 449. 
 
 When they may becom,e Salvors. Pilots are bound 
 by the duties of their office or employment to be always 
 ready, and to go out to vessels requiring thek services, 
 in all weathers, when they can do so without absolute 
 danger to their lives. The General Palmer, 2 Hagg., 
 176. What they do in the ordinary course of their duty 
 can never be made the foundation for a claim for salv- 
 age, and the difficulty and exertion being more or less in 
 such a case can make no difference. They take their 
 chance for such hazards ; they know that they must be 
 exposed to them ; and it must be presumed, that the 
 official compensation is calculated on the probability of 
 such exposures. The Elvira, Gilpin, 65. 
 
 According to the maritime law of England, no Pilot 
 is bound to go on board a vessel in distress, or in appre- 
 hension of distress, arising from antecedent causes, to 
 render pilot service for mere pilotage reward ; and if, 
 being told he would receive pilotage only, he refused to 
 take charge of a vessel in that condition, he would incur 
 no censure. If he did take charge of her he would be 
 
424 PILOTS. 
 
 entitled to a salvage remuneration ; for the scale of re- 
 muneration to Pilots has been calculated on the idea of 
 conducting into port a vessel not in a state of distress. 
 The Frederick, 1 W. Rob., 17. The American doctrine 
 is the same, with this difference, that the compensation 
 beyond his official fees allowed to a Pilot for services 
 transcending the limit of his ordinary official duties, is, 
 in some of the American oases, denominated extra pilot- 
 age. Hobart v. Drogan, 10 Peters, 108 ; Bark Rich- 
 mond, 4 Law Reporter, 20. 
 
 When a Pilot assumes the charge of a vessel, he is 
 bound to use his best exertions to bring her over his pi- 
 lotage ground. If a tempest arise, and she be threaten- 
 ed with being wrecked, his duty is to use his utmost 
 exertions and skill to preserve her. All this is directly 
 within the scope of his office, and the obligation it im- 
 poses. For such services he can claim his official com- 
 pensation only. But even in such cases, he may enti- 
 tle himself to salvage or extra pilotage by rendering 
 services not required by official duty ; as, if a tempest 
 should arise, and he should go off in a boat to the shore 
 to fetch hands, and should risk his life for the safety of 
 the ship, in a manner different from that which his duty 
 required. Hobart v. Drogan, 10 Peters, 123. It is the 
 duty of a Pilot when requested, to take charge of a ves- 
 sel in distress, and to tow and pump her, whenever 
 t'hese services are required of him by the circumstances 
 of the case ; but these acts so far exceed the line of his 
 ordinary duties as to entitle him to a higher reward than 
 the sum prescribed for common pilotage. Wreck Sf 
 Salvage, by Judge Marvin, §146. 
 
CHAPTER XTL 
 
 MARINE mSURANCE. 
 
 GENERAL PRINCIPLES. 
 
 The utility of Insurance in a country so largely en- 
 gaged in commerce as the United States, is too obvious 
 to render it necessary for us to expatiate on the subject. 
 
 The contract of Insurance protects, enlarges and stim- 
 ulates maritime commerce ; and, under its patronage, 
 and with the stable security which it affords, commerce 
 is conducted with immense means and unparallelled en- 
 terprise, over every sea, and to the shores of every coun- 
 try, civilized and barbarous. It is so necessary a con- 
 tract, that maritime commerce cannot well be sustained 
 without it, for no prudent ship-owner would be willing 
 to risk his own fortune, and that of others, on an unpro- 
 tected adventure at sea. 
 
 Insurers (or underwriters as they are generally call- 
 ed) are societies of capitalists, who are called by their 
 business to study with profound sagacity, and with ex- 
 
426 MAEINE INSURANCE. 
 
 actness of calculation, the geography and navigation of 
 the globe, the laws of elements, the ordinances of trade, 
 the principles of international law, and the customs, 
 products, character and institutions of every country 
 where tide waters roll, or to which winds can waft the 
 flag of their nation. 
 
 The party interested in the property insured, is called 
 the insured or assured. The party undertaking to in- 
 demnify the assured against loss is called the insurer or 
 underwriter. The property itself is called the subject of 
 insurance. The title or interest which the assured has 
 in this property, is called his insurable interest. The 
 agreed consideration or stipulated sum for which the un- 
 derwriter undertakes to indemnify the assured is called 
 ihe premium. The instrument, by which the contract 
 of indemnity is effected, is called the policy. That 
 which is insured against, is loss arising from marine per- 
 ils. These perils are, in technical language, sometimes 
 called the perils insured against, and sometimes the 
 risJts covered by the policy. The interest of the assured 
 is technically said to be covered by the policy, when the 
 sum or aggregate of sums insured in the policy is suffi- 
 cient to afford him full compensation for whatever loss 
 that interest may sustain. If the value of his interest 
 exceed the sum insured, the excess of interest is said to 
 be " uncovered by the policy," and the assured to be 
 " his own insurer to that extent." When the liability 
 of the "underwriter commences under the contract, the 
 technical mode of expressing this is by saying that the 
 "policy attaches, or " the risk begins to run," from that 
 time. 
 
POLICY OF INSUKANCE, ITS GENERAL CONSTRUCTION. 427 
 
 Policy of Insurance, and its general construction. 
 
 In examining for the &st time any question under a 
 policy of Insurance, it is necessary to ascertain whether 
 the contract have received a practical construction by 
 merchants and underwriters ; not through any partial 
 or local usages, but by the general consent of the mer- 
 cantile world. Such a practical construction, when 
 clearly apparent, is of great weight, not only because 
 the parties to the policy may be presumed to have con- 
 tracted in reference to it, but because such a practice is 
 very high evidence of the general convenience and sub- 
 stantial equity of it as a rule. 
 
 This is true of most comniercial contracts ; but it is 
 especially true of a policy of Insurance, which has been 
 often declared to be an " obscure, incoherent and very 
 strange instrument," and, generally, more informal than 
 a]iy other brought into a Court of Justice ; but which, 
 notwithstanding the number and variety of the inter- 
 ests which it embraces, and of the events by which it is 
 aflfected, has been reduced to much certainty, by the 
 long practice of acute and well informed men in com- 
 mercial countries by the decisions of courts in the Uni- 
 ted States and in England, and by able writers on the 
 subject in this and other countries. 
 
 And it should not be forgotten, that, not only in the 
 introduction of this branch of law into England by Lord 
 Mansfield, but in its progress since, both there and here, 
 a constant reference has been had to the usage of mer- 
 chants, and the science of Insurance law has been made 
 and kept a practical and convenient system, by avoid- 
 ing subtle and refined reasoning, however logical it 
 
428 MAEINE mSUEANCE. 
 
 may seem to be, and looking for safe practical rules. 
 14 Howard's Sup. Ct. Rep's., 223. 
 
 A Court of Admiralty, in cases witliiii its civil jmis- 
 diction, acts as a Court of Equity, and construes instru- 
 ments, as a Court of Equity does, with a very large and 
 liberal indulgence. Pope v. Nickerson, 3 Story's Rep's., 
 465. 
 
 Most policies contain plirases made necessary by the 
 peculiar circumstances of each case, or introduced for 
 the especial purposes of the parties. These phrases are, 
 for the most part, mercantile phrases. They are used 
 by merchants among themselves, and understood by 
 them ; and much injustice would be done if the law 
 did not interpret them in the way in which they are 
 used and understood. 
 
 The validity and construction of a policy of Insur- 
 ance, are also governed by the laws of the place where 
 it was made and of the places to which it has reference 
 in respect of acts to be done under it. 
 
 In policies of Insurance, as in all written instruments 
 consisting of a printed form, there are blanks which are 
 filled in manuscript. These written words are taken to 
 be the immediate language and terms selected by the 
 parties themselves for the expression of their meaning ; 
 and greater strictness of construction is applied to these 
 clauses and stipulations which the parties have them- 
 selves introduced, than to the words of the printed form- 
 ula, which are adapted to all other cases of Insurance on 
 similar subjects, and not confined to the circumstances 
 of the particular adventure. 
 
 The usages of trade, as already mentioned, are to gov- 
 
POLICY OF INSCEANCE, ITS GENERAL CONSTRUCTION. 429 
 
 ern the construction, of terms used in a policy of Insur- 
 ance. But a usage, in order to affect the parties to a 
 policy, must he conformable to law, and applicahle to 
 Insurance. 
 
 No usage is permitted to contradict the plain and 
 positive provisions of the policy. Thus a usage not to 
 pay for a particular part of the vessel's apparel or furni- 
 ture, as a hoat when it is in a certain place on the ves- 
 sel, is invalid, if the place is that where it is usually 
 carried. 
 
 There are certain known principles applicahle to us- 
 age, laid down hy all the writers on the suhject: 
 1st. Usage is employed only to interpret the meaning 
 
 of amhiguous terms in the policy. 
 2nd. Usage must he reasonable in itself and conform- 
 able to law. 
 3rd. Usage can never be introduced to alter or in any 
 
 wise vary the explicit terms of the contract itself. 
 
 In the case of Mutual Safety Ins. Co. v. Howe, 2 
 Cunst, 235, Justice Sandford says : "We find it clearly 
 settled, that a general usage, the effect of which is to 
 control rules of law, is inadmissible. So of one which 
 contradicts a settled rule of commercial law." 
 
 In Turner v. Burrows, 5 Wendell, 541, it was declar- 
 ed that unless the policy contain words, which by con- 
 struction of law, would give the interpretation claimed, 
 no usage can be introduced to prove it. 
 
 In Mercantile Mut. Ins. Co. v. State Mut. F. Sf M. 
 Ins. Co. of Penn., 25 Barb., 319, a case arising out of 
 a denial of the defendants to a liability for re-insurance, 
 the claimants sought to show the plain and common 
 
430 MABINE INSUBAKCB. 
 
 usage of re-insurances as always prevailing in New 
 York. It was excluded, "because there was no ambi- 
 guity on the face of the instrument. 
 
 As the underwriters so constantly vary not only the 
 usage but the terms of the policy, by the introduction 
 of clauses, hardly any usage can be deemed applica- 
 ble, as a law, to govern any portion thereof, but the lia- 
 bility will be judged exclusively upon the contract 
 itself 
 
 No particular period is requisite to the estahlishment 
 of a usage. " The true test of a usage," says the Supreme 
 Court of New York, " is its having existed a suiBcient 
 length of time to have become generally known." 1 
 Caines, 45 ; 9 Wheat., 581. 
 
 The true principle of construction, as applied to 
 policies, is, that if the clauses of the policy be in 
 themselves clear and unambiguous, the courts will not 
 admit extrinsic evidence to contradict, to vary or to ex- 
 plain them. If, on the contrary, they be obscure and 
 ambiguous, the courts may resort to any means of ex- 
 plaining them, which may be supplied by either the 
 rules of the common law, the general usages of trade, or 
 the particular circumstances of the case. 
 
 Usual clauses and requisites of the Policy. 
 
 In order to give the assured a knowledge of the in- 
 strument, we will consider some of the clauses which 
 it usually comprises, and the main requisites in point of 
 substance and form, which are essential to its validity 
 as a contract. 
 
USUAL Clauses and Requisites ov the policy. 431 
 
 Clause ■' Lost or not lost." As policies are frequently 
 effected, not only on ships and goods in our home ports, 
 but on those also which are in foreign ports, or actually 
 at sea on their way either to this or other countries, 
 from foreign ports, and with regard to which it is of 
 course uncertain whether they may not actually have 
 been lost before the policy was effected, these words, 
 " lost or not lost", are inserted in every form of policy as 
 a matter of course. 
 
 The clause, however, though never omitted, does not 
 appear to be strictly necessary, as there can be no rea- 
 son w^hy a previous loss of the subject insured should 
 prejudice an Insurance subsequently effected, if both 
 the assured and the underivriters were equally ignorant 
 of the loss at the time. 1 Arnould, 26. " But if an In- 
 surance were made upon a ship from a particular day, 
 and she had perished before that day, though unknown 
 to both parties, no one would suppose," says Mr. Justice 
 Story, " that the underwriters were bound for the loss." 
 Hammond Y. Allen, 2 Sumner's R., 387, 397. 
 
 Clause describing the voyage insured. The under- 
 writer cannot know the nature of the risk he is asked to 
 insure, nor consequently, the amount of premium he 
 ought to require, unless he know the nature of the voy- 
 age on which the ship is to sail, or the goods are to 
 be conveyed. It is therefore one of the most essential' 
 requisites of a policy of Insurance, that it should contain 
 an accurate description of the voyage insured. All that 
 is necessary, however, to be expressed in the policy, is 
 the place and period at which the voyage insured is to 
 
482 MARINE mSUEANCE. 
 
 begin, and the place and period at which it is to end, and 
 which are called in the technical language, the termi- 
 nus a quo, and the terminus ad quern, of the voyage 
 insured, or of the risk. Cleveland v. Union Ins. Co., 
 8 Mass., 308 
 
 The distinction between insuring with the words " at 
 and from" a place, and simply insuring "from^^ it, may 
 be thus explained; An Insurance expressed in the pol- 
 icy to be "from, Liverpool to Boston" only protects the 
 subject insured from the moment of the ship's sailing 
 from Liverpool ; an Insurance at and from protects the 
 subject insured from the first moment of the ship's arri- 
 val at Liverpool and during her whole stay there. 
 Seamans v; Loring, 1 Mason, 127 ; Patrick v. Lud- 
 low, 3 John Cas., 10. 
 
 As it is especially desirable, in case a ship be ex- 
 pected to arrive at a certain port abroad, to protect her 
 during her whole stay in such port, from the moment of 
 her arrival, the form of Insurance " at and from" ought 
 always to be adopted in insuring homeward voyages. 
 From the many advantages it presents, this form is al- 
 most always used in practice. 
 
 Clause describing the Commencement and Termina- 
 tion of the Risk. The meaning of this clause is, that 
 the risk upon the goods is to commence from their being 
 loaded on board the ship wherever that may be ; to con- 
 tinue upon them during the whole time they remain on 
 board, and not to terminate until they have been dis- 
 charged from the ship and safely landed at the port of 
 delivery. 
 
USUAL CLAUSES AND REQUISITES OF THE POLICY. 433 
 
 The risk upon the ship is to commence at the port 
 from which she sails on the voyage insured, wherever 
 that may he, to continue during her stay there, and not 
 to terminate until after she have moored at anchor for 
 twenty-four hours in good safety, at her destination. 
 This means safety from the perils insured against, and 
 not those of a merely local character and incident to the 
 port, as bad moorings &c., otherwise the policy might 
 attach all the time she lay there. But a ship cannot be 
 considered to have been moored for twenty-four hours in 
 good safety, unless she be in such a state, and under 
 such circumstances as to have an opportunity of unload- 
 ing and discharging cargo. She must, therefore, be 
 moored, as safely as that harbor or port permits in the 
 usual course of navigation. And if the vessel be order- 
 ed off or into quarantine, before the twenty-four hours 
 have passed, the policy does not cease to attach. Wap- 
 les V. Eames, 2 Strange, 1243. And if she anchor and 
 moor safely, and her actual safety continue through a 
 storm or peril which begins before or within the twenty- 
 four hours, but does no harm until they have expired, 
 she is considered as moored in safety during the twenty- 
 four hours ; because otherwise the risk might never ter- 
 minate, for so long as the ship is in any port, she must 
 be in some degree of danger. Sell v. Mason, 6 Mass. 
 R., 213. 
 
 Reaching the harbor, therefore, cannot be arriving, 
 within the meaning of the policy, and if it do not mean 
 that, it must mean that particular place or point in the 
 harbor, which is the ultimate destination of the ship. 
 Until that point be reached, the voyage is not ended, and 
 28 
 
434 MAEINE INSURANCE. 
 
 the ship has not arrived ; though she may be ohstruct- 
 ed and delayed in her progress through the harbor, and 
 for want of water, or by adverse winds or other causes, 
 be obliged to come to anchor, and remain at anchor 
 twenty-four hours to take out some portion of her cargo. 
 While she is properly pursuing her course to the place 
 of her ultimate destination, and of complete and final 
 unlading, and while she reaches that place, and has 
 been moored there in safety twenty-four hours, she is 
 insured and protected by the policy. Meigs v. Mutual 
 Ins Co.,2 Gush., 439. 
 
 Liberty to Touch or Stay. The course of the ship's 
 navigation, is never in terms expressed in the policy ; 
 but it is an implied condition of every policy, that the 
 ship insured, in sailing between the termini of the voy- 
 age insured, shall pursue that course or track which 
 long usage has established to be the safest and most 
 direct mode of navigation, without deviating from such 
 course to touch at any ports or places whatsoever, which 
 lie between the extreme points of the voyage, unless 
 express liberty for that purpose be inserted in the po- 
 licy. 
 
 Clause empoivering the assured to labor S^c. for the 
 recovery of the property insured. This clause was in- 
 troduced to obviate a notion which appears at one time 
 to have prevailed, that if the assured, after a loss which 
 threatened the total destruction of the property insured, 
 were, either by himself dr his agents, to take active 
 measures for its recovery or restoration, he would there- 
 by lose the right to abandon, which he might otherwise 
 
tJSUAL CLAUSES AND REQUISITES OP THE POLICY. 435 
 
 have exercised. The object of this clause, tltfrefore, is 
 to permit the assured in such cases to take every mea- 
 sure for the recovery of the property without waiving 
 his right of ahandonment, and also to bind the under- 
 writers to contribute in proportion to the amount of their 
 several subscriptions, to reimburse the assured for the 
 expenses which he may thereby have incurred. The 
 language of the clause is only permissive, but it has 
 long since been settled, that it is a clear duty of the 
 assured so to labor for the recovery and restitution of the 
 detained or damaged property. 1 Arnould, 29 ; 2 Phil- 
 lies, 439. 
 
 The Memorandum. This is introduced into all poli- 
 cies for the purpose of exempting the underwriters from 
 all liability for trivial losses, or for partial losses of any 
 kind, arising from sea-damage, to articles of a perishable 
 nature. In all policies in New York, it is in the following 
 form : "Tif is also agreed that bar, bundle, rod, hoop 
 and sheet iron, wire of all kinds, tin plates, steel, mad- 
 der, sumac, wicker-ware, and willow {manufactured or 
 otherwise), salt, grain of all kinds, tobacco, Indian 
 meal, fruits {whether preserved or otherwise), cheese, 
 dry fish, vegetables and roots, rags, hempen yarn, bags, 
 cotton bagging and other articles used for bags or 
 bagging, pleasure carriages, household furniture, shins 
 and hides, musical instruments, looking-glasses and all 
 other articles that are perishable in their own nature, 
 are warranted, by the assured, free from average, unless 
 general ; hemp, tobacco stems, matting and cassia, ex- 
 cept in boxes, free from average under twenty per cent., 
 
436 MARINE INSURANCE. 
 
 unless general ; and coffee, in hags or hulk, pepper in 
 bags or bulk, and rice, free from average under ten per 
 cent., unless general." 
 
 " Warranted by the assured free from damage or in- 
 jury from dampness, change of flavor, or being spotted, 
 discolored, m,usty or mouldy, except caused by actual 
 contact of sea-water with the articles damaged, occa- 
 sioned by sea-perils. In case of partial loss by sea-dam- 
 age to dry goods, cutlery or other hardware, the loss 
 shall he ascertained by a separation and sale of the por- 
 tion only of the contents of the packages so damaged, 
 and not otherwise ; and the same practice shall obtain 
 as to all other merchandise, as far as practicable. Not 
 liable for leakage on molasses, or other liquids, unless 
 occasioned by stranding or collision with another vessel^ 
 
 All other goods pay average when it amounts to five 
 per cent, and upwards ; but special agreements can be 
 made in reference to all goods, altering the customary 
 per centage in the warranty or entirely shutting them 
 out from the payment of average. In the latter case, 
 the underwriters, of course, charge a less premium. 
 
 Where the memorandum clause warranting the cargo 
 free from average unless general, applies, the underwri- 
 ters only are liable (in case of injury to the cargo itself 
 as the cause of loss) in the event of a total physical 
 loss of the cargo ; the whole must be so damaged that 
 it cannot reach its port of destination specifically as mer- 
 chandise. The insurer is not liable if any part of the 
 cargo remain undamaged. Hugg v. Augusta Ins. Sf 
 Banking Co., 7- Howard's Sup. Ct. R. 595 ; Maggrath 
 V. Church, 1 Caines, 196 j Neilson v. Col. Ins. Co.,B 
 
OPEN POLICIES AND VALUED POLICIES. 437 
 
 Caines, 108; Le Rot/y. Gouverneur, IJohnsCas., 226; 
 Crriswold V. New York Ins. Co. 1 Johns, 205 ; Saltus 
 V. Ocean Ins. Co. 14 Johns, 138 ; Whitneyv.Nnn York 
 Firemen's Ins. Co. 18 Johns, 208 ; Brooks v. Lewis, 
 V. State Ins. Co., 4 Martin, N. S., 640 ; Moreau v. U. 
 S. Ins. Co., 1 Wheat, 219; McGaicv. Ocean Ins. Co., 
 23 Pick., 405 ; 3 Sumner, 544 ; 1 Story, 342. On refer- 
 ence to the above authorities, it will be seen, that in or- 
 der to render the underwriters liable for a total loss c. 
 memorandum articles, there must be a destruction of the 
 articles in specie, the goods must have lost their original 
 character, otherwise there cannot be a total loss of the 
 article, whatever may be the extent of the dainage, so 
 as to subject the underwriter. 
 
 There can be no constructive total loss of memoran- 
 duni articles, the underwriters being liable in the event 
 only of a total physical destruction of the object insured, 
 or a total destruction of value. 
 
 But if, by reason of a peril insured against, a memo- 
 randum article be placed in such a condition, that if 
 carried forward, its species would beconle extinct before 
 reaching the port of destination, and be accordingly sold 
 at an intermediate port, this will constitute a totiil loss 
 within the meaning of the memorandum clause. 
 
 The underwriters are liable for General Average char- 
 ges on memorandum articles. 
 
 Open Policies and Valued Policies. 
 
 If a policy do not state the agreed value of the pro- 
 perty insured, but leave that for proof, it is called an 
 
488 
 
 MABINB INSURANCE. 
 
 open policy; but if the policy state what the parties 
 have agreed upon as the value of the property, it is 
 called a valued policy. If the valuation thus agreed 
 upon be intended neither as a cover for a wager, by both 
 parties, nor fraudulently made by the assured, it is bind- 
 ing on the parties, and determines the value of the pro- 
 perty. If the parties, without intending to wager, fairly 
 agree to estimate the property at a high rate, their 
 agreement will be valid. Unless the valuation be gross- 
 ly enormous, so as to be indicative of fraud, it will not 
 be inquired into. In Alsop v. Commercial Ins. Co., 1 
 Sumner, 451, 473, which was a case of insurance upon 
 profits, Mr. Justice Story said : " I do not know that 
 any over- valuation, however great, if it steer wide of a 
 wager and a fraud, can be otherwise impeached." Some 
 value, however, must be proved, or the policy never 
 attaches. 
 
 A valuation in a policy afiects only the parties to it, 
 and the same property may be valued differently in 
 different policies, and each valuation will be valid as 
 respects the parties to the contract of which it is a 
 part. 
 
 Vessels are generally insured by valued policies. This 
 prevents the trouble and perplexity attendant upon 
 proving the value of the ship after the loss has occurred. 
 Goods are more frequently insured by open policies, as 
 the value is easily proved by the invoices, or by show- 
 ing the price current at the time. 
 
 In the adjustment of General Average, the valuation 
 in the policy is not regarded, as the adjustment is usu- 
 ally made at the port of destination, and upon the value 
 
OPEN POLICIES AND VALUED POLICIES. 439 
 
 of the property at that port. Whether the property bo 
 insured or not, valued in the policy or not, is not aT mat- 
 ter of inquiry in adjusting General Average. When the 
 adjustment has been made, and the ship, freight or 
 goods have contributed, the owner may, then, if there 
 were Insurance upon either, call upon the underwriters 
 for the amount thus contributed. 
 
 But in case of partial loss of a ship or goods, the 
 valuation in the policy must prevail in adjusting the 
 loss. 
 
 Ship and freight may be insured jointly, in the same 
 policy though more frequently insured in separate poli- 
 cies. The following rules respecting the effect of the 
 valuation of freight, are deemed to be settled : 
 
 1st. If the parties to a policy have in view the freight 
 of~a particular cargo of merchandise, and value that 
 freight at a fixed sum, the subject of Insurance and val- 
 uation is the entire cargo, and if only part of its freight 
 be put and continued at risk until the loss, a propor- 
 tional part only of the sum fixed as the valuation can 
 be recovered. 
 
 2nd. If the subject insured and valued be not the 
 freight of a particular cargo, but an expected freight 
 only, which may or may not be that of a full loading of 
 the vessel, and some cargo be obtained, and some freight 
 be at risk, the valuation attaches upon that, and the 
 whole sum of the valuation may be recovered, in case 
 of a total loss of the freight at risk. 
 
 3rd. But if, at the time of the loss, there be no freight 
 pending, there is no subject to which the policy can 
 attach, and consequently the valuation becomes inope- 
 
440 MARINE INSURANCE. 
 
 rative ; unless the policy, besides the valuation, contain 
 the clause " on hoard or not on board," or some equiva- 
 lent stipulation. This, if it take efiect, precludes the 
 inquiry respecting the fact whether any freight were at 
 risk, and consequently the valuation attaches and be- 
 comes effectual, upon the assumption that there was 
 freight at risk, the value of which is agreed to be the 
 sum fixed for the purpose. 
 
 4th. Whatever sum the insured receives for that 
 freight which was the subject of valuation and Insur- 
 ance, must be deducted from the amount of the valua- 
 tion in adjusting a loss otherv/ise total. But money re- 
 ceived as freight, though earned in the course of the 
 voyage or period of time described in the policy, if it 
 were not part of that freight to which the Insurance is 
 attached, and the valuation applicable at the time of 
 the loss, is not to be deducted from the amount of the 
 valuation in adjusting a total loss of freight. For ex- 
 ample : if Insurance be made on the entire freight for 
 the round voyage from Boston to Liverpool, and thence 
 back to Boston, the entire freight for the round voyage 
 being valued at ten thousand dollars, and the outward 
 cargo be delivered at Liverpool, and freight earned there- 
 on, and the vessel be totally lost on the return passage, 
 the amount received on 'the outward freight is to be de- 
 ducted. The entire freight of the round voyage being 
 the subject of Insurance and valuation, whatever was 
 received by the owner out of that subject, was received, 
 as Emerigon expresses it, to the use of the under- 
 writers. 
 
 5th. If the freight of no particular voyage were in 
 
OPEN POLICIES AND VALUED POLICIES. 441 
 
 contemplation, and the Insurance were on time, then the 
 policy and the valuation attach successively and dis- 
 tinctly on each successive freight which is at risk. Each 
 successive freight, whether for a round voyage or one 
 passage, becomes the subject insured and valued, and 
 consequently what has been received on account of pre- 
 vious voyages or passages, not being any part of the 
 subject insured and valued at the time of the loss is not 
 to be deducted from the valuation. 
 
 The amount of insurable interest in aW. open policies, 
 is taken to be that which they are worth to the assured 
 at the commencement of the risk, with the premium 
 added ; and the principle upon which the amount of in- 
 demnity, recoverable by the assured in case of loss, is 
 regulated, is, that he must be replaced as nearly as pos- 
 sible in the same position as he was in at the outset of 
 the adventure, and before effecting the Insurance, with- 
 out paying any regard to the profit he may have missed 
 making in the case of goods, or to the wear and tear by 
 which his property has been deteriorated in the case of 
 the ship. 
 
 Expected profit on a maritime adventure, is an ordi- 
 nary subject of Insurance. Insurance on profits is usu- 
 ally made by a v^lluation. In the United States it is 
 frequently agreed by the parties that the adjustment of 
 the loss on profits or commissions shall correspond to 
 that on goods on which the profits or commissions are 
 to accrue. But without any such express agreement, 
 the adjustment of a partial loss on profits or commis- 
 sions on goods damaged, or a part of which are lost by 
 the perils against which the profits or commissions are 
 
442 MARINE INSUBANCE. 
 
 insured, is at the same rate per centum as that on 
 goods. 
 
 In a policy upon the profit of goods, the Insurer un- 
 dertakes tha,t they shall not he prevented by the perils 
 insured against, from arrival at a certain market. If a 
 part of the goods only be prevented from arriving, it 
 constitutes a partial loss upon this interest. 
 
 Insurable Interest. 
 
 The interest which it is necessary for every one to 
 have, before he can effect an available Insurance on his 
 own account or for his own benefit, is called an Insura- 
 ble interest. 
 
 The insured must have an interest in the subject of 
 Insurance ; and this interest must be at risk. If he have 
 no interest, or if his interest be not at risk he can be lia- 
 ble to no loss, and accordingly there is nothing, against 
 which the underwriters can agree to indemnify him. 
 
 As Insurance is essentially a contract of indemnity, 
 the insurer can be called upon to make good only a loss 
 sustained. 
 
 In order to constitute an Insurable interest against 
 any peril it must be such an interest that the peril may 
 have a direct effect upon it instead of a remote, circuit- 
 ous, consequential effect. That is to say, the interest 
 must be a direct one, in reference to the perils insured 
 against. 
 
 In order to entitle the assured to recover on the poli- 
 cy, it is necessary that the interest, in respect to which 
 
INSURABLE INTEREST. 448 
 
 the Insurance is eflFected, was an interest subsisting at 
 the time of the loss ; but it is not necessary that the 
 interest be subsisting at the time of effecting the poli- 
 cy. Lane v. Marine Mutual F. Ins. Co., 12 Maine, 
 44. 
 
 The assured, who has been interested during the risk, 
 but has parted with his interest before loss, cannot re- 
 cover oh the policy. But if he have not parted with his 
 interest till after the loss, he can recover. 
 
 The person who pays for repairing a vessel, has not, 
 by force of that fact, an Insurable interest in her. The 
 repairs become a part of the vessel, and having no 
 hen for the money expended, he has no Insurable in- 
 terest in it, unless when secured by a lien by law or 
 contract. 
 
 The persons employed to repair the ship, or in gene- 
 ral to do any work about her, and those who furnish 
 for her use, supplies of things necessary to her equip- 
 ment and safe navigation, are known in the law of 
 shipping as " material men." 
 
 All material men have a lien on the ship ; provided 
 the supplies were necessary and could be obtained by a 
 credit on the vessel only. Fratt v. Feed, 19 Howard, 
 359. It has accordingly been held, that it must be 
 proved that the owner had no funds or credit on which 
 to procure the supplies except the credit of the vessel. 
 Brown v. propeller Albany, U. S. Dist. Ct. of N. York, 
 February term, 1858. Mr Justice Curtis has, however 
 said, after speaking of the decision in Fratt v. Feed, 
 that " the liens given by the local law do not depend 
 on the same requirements." The Young Sam, 20 Law 
 
444 MARINE INSDEANCE. 
 
 Reporter, 608, 610. There is no lien on' domestic ships, 
 unless it be given by the law of the State in which the 
 supplies are furnished. For the purpose of -this distinc- 
 tion, each of our States is considered foreign to the rest; 
 so that material men in New York would there have a 
 lien in admiralty for work done on a Philadelphia ship. 
 Pratt Y. Reed, 19 Howard, 359. 
 
 It may be said, generally, that any interest may be 
 insured if the peril against which Insurance is made, 
 would bring upon the assured, by its immediate and 
 direct effect, a pecuniary loss. Hence, ail persons who 
 have a lien on any property, as salvors, or who make 
 any pecuniary gain out of property, as factors on com- 
 missions, consignees, agents, carriers or other bailees 
 may insure whatever interest they have. 
 
 Where money is lent on bottomry, it is understood 
 that if the ship be lost, the lender loses also his whole 
 money ; but if the ship arrive in safety, then he receives 
 back the principal, and also the premium or maritime 
 interest agreed upon, however much it may exceed the 
 legal rate of interest. There is greater reason, therefore, 
 why the lender on bottomry should have an insurable 
 interest in the thing pledged, than that a mortgagee 
 should have such an interest ; for, if the property be lost, 
 he loteti his debt, v/hereas a mortgagee still has his 
 claim subsisting against his debtor. It has always 
 been held that the lender has an insurable interest in 
 the ship or goods hypothecated. But the insurable in- 
 terest of a party to whom property is hypothecated will 
 depend upon the validity of the hypothecation. 
 
 The borrower on bottomry and respondentia, has no 
 
INSURABLE INTEREST, 445 
 
 ■.insurable interest^ except in the surplus by which the 
 value of the- hy.gotheeated property exceeds the amount 
 of the loan. If, therefore, goods be hypothecated for 
 the full value, the borrower is not interested in their 
 safety, as far as the risks are assumed by the lender ; 
 for if thej be lost by the risks, within the hypotheca- 
 tion, he is discharged from the debt. He is accordingly 
 interested so far only as the value of the property ex- 
 ceeds the amount for which it is pledged. 
 
 A consignee, factor or agent, having a, lien on goods, 
 to the amount of his advances, acceptances and liabili- 
 ties, stands in this respect precisely in the situation of a 
 mortgagee. A debt is due to him from his principal, 
 for which beholds the property as collateral security, 
 and the property is at the risk of the principal, as the 
 debt would still subsist though the property should be 
 lost ; and the excess over the proceeds of the goods 
 would still be due to him in case of the proceeds being 
 insufficient to satisfy his claim. He has therefore an 
 insurable interest in the goods to the amount of his 
 lien. Van Natta\. Mutual Security Ins. Co., 2 Sand- 
 ford, 490. 
 
 There are different kinds of consignees ; some have a 
 power to sell, manage and dispose of the property, sub- 
 ject to the rights of the consignor only ; others have a 
 mere naked right to take possession, and others, though 
 not intrusted to sell, are yet interested in the property, 
 as having a lien or claim upon it for their advances. 
 The rights of these different kinds of consignees to effect 
 an Insurance, must vary with the various relations in 
 which they stand to the property and to the consignor. 
 
446 MABINE INSUEAi^-CiS, 
 
 A commission merchant, to whom goods are consigned 
 for sale, has an insurable interest to the amount of his 
 commissions on the sale, from the time of the goods be- 
 ing consigned to him. He may make insurance in an- 
 ticipation of the consignment being made, and the goods 
 becoming subject to the risks insured against. Put- 
 nam V. Mercantile Marine Ins. Co. 5 Metcalf, 386. Mr. 
 Justice Hubbard, in delivering the opinion of the court 
 said. " The law of Insurance has been most reasonably 
 extended to embrace within its provisions, cases where 
 the parties having no ownership of the property, have a 
 lien upon it, or such an interest connected with its safe- 
 ty and its situation, as will cause them to sustain a di- 
 rect loss from its destruction or from its not reaching its 
 proper place of destination. Such rights have received 
 protection, and the expectation of profits, the loan upon 
 mortgage or respondentia, the advances of a consignee 
 of a master or supercargo, are all now well recognized 
 subjects of Insurance." 
 
 The master of a vessel, is merely a carrier and in his 
 capacity of master merely, has no general insurable in- 
 terest in the ship, cargo or freight. Barker v. Marine 
 Ins. Co., 2 Mason's E., 369. A master, however, may 
 insure his commissions, his wages or the freight of goods 
 carried by him on his privilege. Holbrooh v. Brown,-2 
 Mass., 280 ; Foster y. Hoyt, 2 Johns Cas, 327. If the 
 master sail the vessel on shares, he has an insurable in- 
 terest in the freight to the amount of his share, and his 
 indebtedness on account of the freight in addition, 
 Haines v. Rowe, 40 Maine, 181. 
 
 If the charterer of a ship contract to pay the owner 
 
iNStfRABLE HfTEKES*. 447 
 
 for the ship, in case of loss, he has an insurahle interest in 
 her, and may effect Insurance upon her in his own name. 
 Bartlett v. Walker, 13 Mass. R, 267. 
 
 A mortgagor has clearly an insurable interest in the 
 mortgaged property, and that to its full value; for in case 
 of loss he would not be deprived of the thing insured only, 
 but be compelled also to pay the mortgage debt. A 
 mortgagee has also an insurable interest in the mortga- 
 ged property to the amount of his claim. Where a mort- 
 gagee, or one having a lien, insures his own interest in 
 property, a payment of a loss to him by the insurers does 
 not discharge the debt for which the mortgage or lien is 
 the security. The want of privity between the mortga- 
 gor and the insurers is a conclusive objection to the 
 mortgagor's claim to such discharge. JEtna Fire Ins. 
 Co. V. Tyler, 16 Wend., 385, 397. 
 
 As the mortgagee's motive in insuring is to preserve 
 his security, and as the Insurance must be construed to 
 be made with express reference to the mortgage inter- 
 est, whether specified or not ; a question arises whether 
 upon the happening of loss, and payment thereof to the 
 mortgagee (he having insured for his own benefit, and 
 paid the premium out of his own funds), the insurers 
 can demand from him a transfer of the mortgaged debt? 
 The legal rights of the assurers in this respect, have not 
 been satisfactorily defined by the courts, but the better 
 opinion seems to be, that the insurers, upon the payment 
 of loss, are entitled to have secured to them the debt of 
 the mortgagor or some portion of it corresponding to the 
 amount insured. Until this question receive a clear 
 and final adjudication from the courts, it is desirable, to 
 
448 MAEINE INSUBANCE. 
 
 avoid litigation, that the assured, by a special clause in 
 the policy, be held bound, in case of loss and payment 
 thereof to transfer the mortgage debt to the insurers. 
 The engagement of the insurers is merely to stand in 
 the place of the assured, and to incur the same risks as 
 he is incurring. The whole law of Insurance is indem- 
 nity, one of the principles of which is that insurers who 
 pay a total loss are subrogated to all the rights, interests 
 and claims of the assured, in or about the interest insured. 
 And all the ends of indemnity can be best gained if the 
 assured be held bound to transfer the mortgage debt to 
 the insurers. 7 Gushing, 1 ; 16 Peters, 495, 501 ; 16 
 Wendell, 385, 397 ; 5 Duer, 1. 
 
 Freight paid in advance, constitutes an insurable in- 
 terest, but only when, and because, it is no longer at the 
 risk of the ship-owner, but of the shipper. Samson v. 
 Ball, 4 Dall, 459. If the advance be made merely on 
 account of freight which is to become due only upon de- 
 livery of the goods at the port of destination ; or a pay- 
 ment with a right of reclamation if the cargo be not so 
 delivered, then the shippers have no insurable interest 
 in it. But, where the understanding is, that the ad- 
 vance is a payment absolutely without the right of re- 
 clamation, the insurable interest is vested wholly in the 
 shippers of the cargo, and the ship-owner not having 
 any interest at risk, so far as concerns the freight pre- 
 paid, has nothing to insure. 
 
 Underwriters on freight can cover only that which 
 is at risk ; and if a total loss occur, they are entitled to 
 what is saved only of that which was at risk. 
 
 The English rule as to the recovery of freight, paid in 
 
INSURABLE INTEREST. 449 
 
 advance, is stated by the text writers to be, that freight 
 'feo paid is paid absolutely, and cannot be reclaimed, 
 though the goods be not carried to the port of delivery,' 
 unless there be a special agreement to that effect. Hop' 
 kins, pp. 80, 83, 235. 3 Kent (9th ed.) 306. Abbott 
 on Ship. (7 Am. ed.) 530. 
 
 Such a rule however, is contrary to the general prin- 
 ciples and policy of the law, and the decisions cited in 
 support of the supposed rule, seem to have turned on the 
 particular terms of the bill of lading, or the circumstan- 
 ces of the conti-act in each case ; a distinction being 
 made in some of the cases between an agreemejit to re- 
 ceive on hoard for carriage to the port of destination, and 
 a contract, in the usual form of our bills of lading, to 
 carry and deliver. Compare MasMton v. Buller, 1 
 Camb, 84, and Blahey v. Bichson, 2 B. & Pul, 320, 
 with Andrew v. Moorkous, 5 Taunt, 435 ; also, Mans- 
 field V. Maitland, 4 B. & Aid, 584, with Besilvale v. 
 Kendall, 4 M. & S., 37. 
 
 The more correct statement of the rule, fairly deduci- 
 ble from the English cases, would seem to be that whe- 
 ther freight paid in advance, can, or not, be recovered 
 back, in case of non-performance of the voyage, is a 
 question of intention ; or in other words, that it depends 
 on the peculiar terms and conditions of the agreement 
 under which the freight was paid. 
 
 But whatever may have been the course of the Eng- 
 lish decisions, it appears to be now the established law 
 in the United States, that freight paid in advance may 
 be reclaimed and recovered in case of non-performance 
 of the voyage without fault of the shipper, unless there 
 29 
 
450 MARINE INSURANCE. 
 
 be a special agreement to the contrary. Watson V. 
 Duyhink, 3 Johns, 335; Phelps v. Williamson, 5 
 Sandf., 578 ; Pitman v. Hooper, 3 Sumner, 50 ; Reina 
 V. Cross, 6 Cal., 29; Griggs r. Austin, 3 Pick., 20; 
 Lacoson v. Worms, 6 Cal., 365 ; Brotvn v. Harris, 2 
 Gray, 359. 
 
 The New York case of Watson v. Duykinh (3 Johns, 
 335) recognizes and turns upon a distinction similar to 
 that noted in the English cases ; and though upon the 
 particular circumstances of that case (in which a usage 
 is said to exist in New York, that freight paid in ad- 
 vance under such circumstances is paid absolutely) the 
 decision there made is against the reclamation of such 
 advance ; the general rule of law in this country is af- 
 firmed as above stated. 
 
 Price Insurance, Double Insurance and Re-insurance. 
 
 The marine policies of this country usually contain a 
 clause to the effect, that if there be any prior insurance, 
 the insurers shall be liable for so much only as the prior 
 insurance may fail to insure of the property. Of course, 
 under such a provision, a second policy insures the un- 
 insured excess only, of interest remaining after the first; 
 the third policy the same excess remaining after the se- 
 cond, and so on. And this clause relates to priority in 
 effecting the Insurance, and not to priority in the com- 
 mencement of the risk ; and the actual time of making 
 the contract, may, for this purpose, be proved to be dif- 
 ferent from its written date. 2 Parson's Mar. Law, 97; 
 
PRIOE, DOUBLE AND RE-INSURANCE, 451 
 
 LecY. Mass. Fire ^ M. Bis. Co., 6 Mass., 208. 
 
 If the subsequent policy contain no provision in res- 
 pect to prior Insurance, the assured may insure with 
 different underwriters to any amount, if he will pay the 
 premiums, and recover indemnity from any of the un- 
 derwriters whom he may elect to sue. But the assured 
 can recover the real amount only of his loss, to which 
 all the underwriters shall contribute in proportion to 
 their several subscriptions. Lucas v. Jeff. Ins. Co. 6 
 Cowen, 635. 
 
 Where there is the usual clause respecting prior In- 
 surance, it does not apply if the policies be simultane- 
 ous, for in that case all are liable, but pro rata. 2 Ma- 
 son, 475 ; 18 Pick., 145. They are held to be simulta- 
 neous, if, as is sometimes done, the policies so state ; or 
 if they bear date the same day, and there be no evi- 
 dence of any difference in the time of their making. 
 But although dated and made on the same day, if they 
 be not declared to be simultaneous, it may be shown 
 by evidence that one was made before the other, and 
 they are then not simultaneous. 2 Mason, 475. 
 
 Some policies contain the clause, that, in case of oth- 
 er Insurance, the assured shall not recover any greater 
 proportion af the loss than the amount insured in the 
 policy bears to the whole amount insured on the proper- 
 ty. The construction put upon this clause in New York 
 was, that in case of loss, if the other underwriters had 
 settled under the other policies containing the same 
 clause, that would not affect the policy in question ; for 
 in that case each set of underwriters would pay their 
 proportion only of the loss, and the greater the aggre- 
 
452 MARINE INSURANCE. 
 
 gate amount insured over the whole value of the prop- 
 erty, the less each set of Insurers would he liahle to 
 contribute. But it was held that if the other policies 
 did not contain a similar clause, and the underwriters 
 in those had paid the whole amount of the loss, then the 
 assured would recover nothing under this policy, be- 
 cause the underwriters in this policy would, in such 
 case, be liable to contribute to the other underwriters 
 proportionally. Lucas v. Jefferson Ins. Co., 6 Cowen, 
 
 635. 
 
 In ascertaining the amount to which a second or any 
 
 subsequent policy is applicable, where a prior policy is 
 to be deducted, the amount covered by such prior policy 
 only is to be deducted. It is evident accordingly, that 
 the premium, with the premium on the premium in the 
 prior policy, is not to be included in the amount to be 
 deducted, but only the amount which the assured would 
 be entitled to recover besides his premium. For in- 
 stance, if one insure a thousand dollars in the first pol- 
 icy, and pay a premium of fifty dollars for the Insur- 
 ance, the value of the subject will be covered by such 
 prior policy to the amount only of nine hundred and fif- 
 ty dollars, this last sum being the amount to be deduct- 
 ed in estimating the amount of interest under the sec- 
 ond policy. 2 Phillips, 1257. 
 
 If the value of the same subject be higher in a. second 
 policy, the amount only (not the proportion) insured by 
 the first is to be deducted from the amount of the value 
 in the second, in estimating the amount considered un- 
 der the second not to be insured in the first. Four thou- 
 sand dollars being insured on a ship and cargo valued 
 
PEIOE, DOUBLE AND EE-INStTRANCE. 453 
 
 at that sum, a subsequent policy was made on the same 
 ship and cargo valued at six thousand dollars, with the 
 usual clause as to prior insurance. The question was, 
 how much remained to be covered under the second po- 
 licy ? And Mr. Justice Washington held the amount of 
 Insurable interest under the policy, to be two thousand 
 dollars. Murray v. Ins. Co. of Pennsylvania, 2 Wash. 
 C. C. R., 186 ; M'Kimv. Phoenix Ins. Co., 2 Wash. C. 
 C. R., 89. 
 
 Whether, if divers policies containing the clause rela- 
 tive to prior insurance be successively made on proper- 
 ty of an amount sufficient at the outset to fill them all, 
 but which, after the risk has begun, is diminished be- 
 low that amount, the Insurance under the several poli- 
 cies is diminished proportionally, or the risk continues 
 to the full amount on the prior policies, and ceases under 
 the subsequent ones ? "The inquiry," says Mr. Phillips 
 (vol. 2, §1261) " relates to policies under which the risk 
 has commenced, and the premium is not returnable. 
 There seems to be nothing in the common phraseology 
 of the policy to prevent the construction, that the clause 
 refers to the commencement of the risk, and that, when 
 the policies have once attached to a cargo, the opera- 
 tion of the clause ceases in respect to such cargo ; and 
 in case of the subsequent diminution of the amount at 
 risk below the aggregate amount insured, by landing a 
 part of the property or otherwise, the amount covered 
 by each of the policies is diminished proportionably. 
 This construction, if it b-3 admissible, apportions the risk 
 according to the premium on all the policies, whereas 
 the other construction in question occasions a dispropor- 
 
454 MARINE INSURANCE. 
 
 tioii in this respect ; since, if, under this latter, two po- 
 licies of fljOOO each he successively made upon a cargo 
 worth $2,000 for a voyage to successive ports, and when 
 one half of the voyage is performed, half of the goods 
 be landed, $1,000 only will remain at risk under the 
 prior policy for the remainder of the voyage, so that for 
 the same premium the risk under this policy will he dou- 
 ble that under the other." 
 
 " The construction that a diminution of the amount 
 affects the policies proportionally, seems conclusively to 
 result from the usual provision, that the premium shall 
 be returned upon so much of the sum insured as the un- 
 derwriters shall be exonerated from by the prior insur- 
 ance, thus specifically providing for a concurrence of the 
 exoneration from risk and return of premium, and re- 
 quiring the return in case of exoneration." 
 
 " The above reasons seem to constitute good ground 
 of dissent from a decision of the Supreme Court of New 
 York, confirmed in the Court of Errors, Senators Tracy 
 and Jones dissenting. Under divers time policies upon 
 a cargo, exceeding its full amount, on a trading voyage 
 to South America, all containing the clause relative to 
 prior insurance, by the landing of a part of the cargo 
 the amount remaining on board of the ship, at the time 
 of a total loss, was reduced below the amount insured in 
 all the policies. The prior insurers were held to be lia- 
 ble for the whole of the loss, in exoneration of the sub- 
 sequent ones. American Ins. Co. v. Griswold, 14 
 Wend., 399." 
 
 " But for the above reasons, the better doctrine seem^ 
 to be, that the clause relative to prior insurance, in the 
 
PRIOR, DOUBLE AND RE-INSUEANCE. 455 
 
 common form, as between the underwriters, on divers 
 policies has reference to the commencement of the risk 
 upon any specific subject ; and after the risk on cargo, 
 of an amount sufficient to fill any or all of the policies, 
 has commenced, if a part of the property be subsequent- 
 ly withdrawn, so as to reduce the amount below the 
 aggregate amount insm-ed by the policies, what remains 
 is to be ratably apportioned to the several policies." 
 
 Under the clause relative to prior insurance, the am- 
 ount of interest to which a subsequent policy applies, 
 will depend upon the amount insured in the previous pol- 
 icies, and also upon the valuation in the subsequent one. 
 A cargo valued in a prior policy at $12,000, the am- 
 ount insured, was valued in a second policy at $27,500. 
 Though the whole cargo was insured in the first policy, 
 yet there remained an insurable interest of $15,500 for 
 the second, since, as the property was valued in the sec- 
 ond policy, this excess remained over the amount previ- 
 ously insured. 2 Phillips, 1262 ; M'Kim v. Phcenix 
 Ins. Co., 2 Wash. 89 ; Higginson v. Dall, 13 Mass, R., 
 96; MintiirnY. Columbian Ins. Co., 10 Johns, 75; 
 Kane v. Commercial Ins. Co., 8 Johns, 229 ; Pleasants 
 V. Maryland Ins. Co., 8 Cranch, 55. 
 
 Double Insurance, or, which is the same, over-insur- 
 ance, is where two or more Insurances are made in fa- 
 vor of the same assured, on the same interest in the 
 same subject, against the same risks and the whole am- 
 ount insured exceeds the value of the whole subject 
 
 matter. 
 
 Where different risks are insured against by the same 
 
456 MAKINE INSURANCE. 
 
 party on the same interest not over its full amount in 
 each of two or more policies, it is not an over-insurance, 
 and the provision respecting prior and subsequent In- 
 surances is not applicable. Perkins v. N. E. Mar. Ins. 
 Co., 12 Mass. R, 214. 
 
 If the aggregate amount insured by divers policies on 
 a subject do not exceed the value in one of them, as 
 estimated under the common rule, or as agreed, it is not 
 a double insurance in respect to such one. As where, 
 one thousand dollars being insured by a prior policy in 
 which the subject is valued at that amount, the same 
 sum is insured in a subsequent policy, in which the sub- 
 ject is valued at two thousand dollars. 1 Phillips, 368 ; 
 Murray v. Ins. Co. of. Penn., 2 Wash, C. C. R., 186 ; 
 Higginson v. Ball, 13 Mass. E., 96 ; Minturn v. Col- 
 umbian Ins. Co., 10 Johns, 75; Pleasants v. Maryland 
 Ins. Co., 8 Cranch, 55. 
 
 Re-insurance is defined to be a contract by which, in 
 consideration of a certain premium, the original Insurer 
 throws upon another the risk for which he has made 
 himself responsible to the original assured, to whom, 
 however, he alone remains liable on the original In- 
 surance. 
 
 Every Insurer has an insurable interest for re-insur- 
 ance. The re-insurance may be against all or a part of 
 the risks that have been assumed by the re-insured in 
 the original policy in which he is the insurer. 
 
 Aia underwriter, by subscribing a policy, acquires no 
 property in the subject insured, yet he acquires an 
 insurable interest, and, having rendered himself direct- 
 
REPRESENTATION AND CONCEALMENT. 457 
 
 ly liable to loss from certain perils, may stipulate to 
 be indemnified against those perils. His interest, how- 
 ever, exists only in relation to the perils against which 
 he has insured in the original policy. 
 
 Representation and Concealiient. 
 
 Any contract obtained by the fraud of a party, is void 
 in respect to the other parties. This is especially the 
 case in regard to Insurance, in which fair dealing and 
 good faith are strictly required by the law, and much re- 
 lied upon by the parties. The contract is generally en- 
 tered into by the insurer in consequence of the represen- 
 tations of the assured, and if these representations do 
 not enable the insurer to make a just estimate of the risk, 
 it is plain that he ought not to be bound by the con- 
 tract. 
 
 A representation in the technical sense which the 
 word bears in the law of Insurance, is defined to be ; a 
 verbal or written statement made by the assured to the 
 underwriter, before the subscription of the policy, as to 
 the existence of some fact or state of facts, tending to 
 induce the underwriter more readily to assume the risk, 
 by diminishing the estimate he would otherwise have 
 formed of it. 
 
 A fact or statement having such tendency is called a 
 material fact or statement. One having no such ten- 
 dency is called immaterial. 
 
 If either party, whether by design, or through negli- 
 gence, mistake or oversight, conceal or misrepresent a 
 
458 MARINE mStJRANCE. 
 
 fact material to the risk, the contract is void with re- 
 spect to the other party. 
 
 A representation made to an underwriter must he true, 
 or he is discharged ; and if the assured represent facts 
 without knowing the truth, he takes the risk upon him- 
 self 
 
 If the assured, or his broker, omit to state a material 
 circumstance, supposing it not to be material, this dis- 
 charges the underwriter. 
 
 If the underwriter insure a vessel that he knows to 
 have arrived, the policy is void. 
 
 The representations ought to be reduced to writing 
 and signed by the parties. If an Insurance broker 
 make representations that he ought not to have made, 
 he is liable for the damages that may ensue therefrom 
 to his principal. 
 
 Where there is a misrepresentation, the Insurance is 
 for all purposes null and void, and not voidable only. 
 Clarh V. New England Mut. F. Ins. Co., 6 Gushing, 
 342. 
 
 To constitute a representation, there should be an af- 
 firmation or denial of some fact, or an allegation which 
 plainly leads the mind to an inference of a fact. Liv- 
 ingston V. Maryland Ins. Co. 7 Cranch., 535. 
 
 If the assured state a mere expectation or opinion, 
 or express himself in a qualified or doubtful manner, 
 yet at the same time fairly, but without any absolute 
 assertion of a fact, it is not a representation, and does 
 not avoid the policy. 2 Buer on Ins. 644. 
 
 It is a misrepresentation under the law of Insurance, 
 when it is false, whether intentionally so or not, and 
 
REPRESENTATION AND CONCEALMENT. 459 
 
 tends to obtain for the party uttering it some advantage 
 in the bargain, or an entering into the bargain by the 
 other party. And it has the same efi'ect whether made 
 in reference to a matter concerning which some repre- 
 sentation is necessary or otherwise. Sawyer v. Coast- 
 ers' Mut. Ins. Co., 6 Gray, 221. 
 
 It is the duty of the assured to communicate every 
 species of intelligence which he possesses, which may 
 affect the mind of the insurer, either as to the point 
 whether he will insure at all, or as to the rate of premi- 
 um. The contract of Insurance is one of mutual good 
 faith ; and the principles which govern it are those of 
 an enlightened moral policy. The underwriter must be 
 presumed to act upon the belief that the party procur- 
 ing Insurance is not at the time in possession of any 
 fact material to the risk, which he does not disclose ; 
 and thai no known loss had occurred which by rea- 
 sonable diligence might have been communicated to 
 him. McLaughliuY. The JJniversallns. Co., 1 Peters' 
 S. C. R., 185. 
 
 The assured is not required to represent facts of gene- 
 ral notoriety, or which are presumed to be known to 
 those conversant with the trade; but he is required to 
 state fairly and fully other facts within his knowledge 
 that are material to the risk. If a knowledge of the 
 circumstances suppressed would have induced the in. 
 surer to demand a higher premium, or to refuse to un- 
 derwrite, it will invalidate the policy. 
 
 One of the tests, and certainly a decisive test, whe- 
 ther a misrepresentation or concealment be material to 
 the risk, is to ascertain whether, if the true state of the 
 
460 MARINE INSUEANCE. 
 
 property or title had been known, it would have enhan. 
 ced the premium. If it would, then the misrepresenta- 
 tion or concealment is fatal to the policy. Columbian 
 Ins. Co. V. Lawrence, 1 Peters, 516. 
 
 Concealment in the law of Insurance, is the suppres- 
 sion of a material fact unknown to the other party, 
 which refers to the pending bargain, and is material 
 to its terms. Maryland Ins. Co. v. Ruden, C. Cranch, 
 338. 
 
 In Marine Insurance, the misrepresentation or con- 
 cealment by the assured, of a fact material to the risk, 
 will avoid the policy, although no fraud were intended. 
 Burritt V Saratoga M. F. Ins. Co., 5 Hill, 188 ; Curry 
 V. Com,monwealth Ins. Co., 10 Pick, 535 ; Sawyer v. 
 Coasters' Mut. Ins. Co., 6 Gray, 221. 
 
 All intelligence ought to be communicated to the un- 
 derwriter which may affect his judgment, either : 1st, 
 as to the point whether he will insure at all ; 2d, as to 
 the point at what premium he will insure ; and this du- 
 ty attaches a.t the time of effecting the policy. Conse- 
 quently, though the intelligence concealed may turn out 
 to be unfounded, or the loss may arise from a cause to- 
 tally unconnected with the fact concealed, the policy 
 will nevertheless be void. Lynch v. Hamilton, 3 Taunt. 
 37, 44. 
 
 The principle which must be clearly apprehended and 
 remembered upon the subject is, that every thing mate- 
 rial must be disclosed, and stated truly ; and that, to de- 
 termine whether any fact, actual or rumored, is mate- 
 rial, we must ascertain whether that fact would natu- 
 
RETURN OF PREMIUM. 461 
 
 i"ally and reasonably enter into the estimate of risk, or 
 the reasons for or against entering into the contract of 
 Insurance. The whole object of the rules as to repre- 
 sentation, misrepresentation and concealment, is to en- 
 able the insurers to judge accurately of the risk they un- 
 dertake. 
 
 Return of Premium. 
 
 It is a general rule, subject to some exceptions, that, 
 if the thing insured have never been brought within the 
 terms of the contract so that the insurer might have 
 been liable for a loss occasioned by the perils insured 
 against, the premium must be returned to the assured, 
 or the premium note cancelled, deducting, however, one- 
 half per cent, on the amount insured, or making such 
 other deduction as is stipulated for. But if the property 
 have, though for a short time only, been exposed to the 
 risks insured against, and within the conditions of the 
 policy, in such manner that the insurers might have 
 been liable for a loss, no return of premium for Insur- 
 ance of the property so at risk can be claimed. 2d 
 Phillips, §1819. 
 
 Lord Mansfield, C. J., in Tyrie v. Fletcher, 2 Cowp., 
 666, states the law as follows : " There are two general 
 rules established, applicable to this question ; the first 
 is, that where the risk has not been run, whether its not 
 having been run were owing to the fault, pleasure or will 
 of the insured, or to any other cause, the premium shall 
 be returned ; because a policy of Insurance is a contract 
 
462 MAEtNil IJJSURAIJCE. 
 
 of indemnity. The under\p:iters receive a premium for 
 running the risk of indemnifying the insured, and what- 
 ever cause it is owing to, if he do not run the risk, the 
 consideration, for which the premium or money was put 
 into his hands, fails, and, thei'efore, he ought to return 
 it. 2d, Another rule is, that if the risk of the contract 
 of indemnity have once commenced, there shall he no ap- 
 portionment or return of premium afterwards. 
 
 Upon these two principles the solution of every ques- 
 ticm relating to return of premium, depends. See Graves 
 V. Mar. Ins. Co., 2 Caines, 339 ; Forbes v. Church, 3 
 Johns, 159; Lawrence y. Ocean Ins. Co., llJohns, 262; 
 Marine Ins. Co. of Alex. v. Tucher, 3 Cranch, 385 ; 
 Hendricks v. Commercial Ins. Co., 8 Johns, 1 ; Stein- 
 back V. Col. Ins. Co., 2 Caines, 129 ; Taylor v. Lowell, 
 3 Mass., 343 ; Merchants' Ins. Co. v. Clapp, 11 Pick. 
 57. 
 
 It may, therefore, he clearly stated, that this rule gives 
 tp the insured the power of avoiding the contract, in 
 whole or in part, after it is made ; hecause the contract 
 is suhstantially a promise by the insurers to indemnify 
 the insured against a certain risk if that risk he incur- 
 red, and a promise of the insured in return to pay the 
 premium to the insurers if their promises of indemnity 
 attach. If no part of the risk attach, either because 
 no part of the goods is shipped, or because no part of 
 the voyage takes place, or because the Insurance was 
 predicated on a fact about which the parties were mis- 
 taken, or because the irisured had no interest, or because 
 the vessel was unseaworthy and consequently the risk 
 never attached, the whole premium is returnable. 
 
EETURN OF PREMIUM. 46S 
 
 Many Insurance companies, by a clause in their poli- 
 cies, retain one-half of one per cent on the premium re- 
 turnable ; but in some cases, other terms are agreed upon 
 for the return of premium. 
 
 If the policy be on time at an entire premium, no part 
 of the premium is returnable after the policy has attach- 
 ed. In Loraine v. Tomlinson, 2 Doug., 585 ; a ship 
 being insured at an entire premium for twelve months, 
 the risk terminated at the end of two months, and the 
 assured thereupon claimed a return of a part of the pre- 
 mium for the subsequent time ; but it was held that he 
 was not entitled to it. 
 
 The shortness of the duration of the risk, has no bear- 
 ing on the question of return of premium ; the moment 
 the risk commences the whole premium becomes the 
 absolute property of the underwriters. It is, in fact, 
 quite impossible to apportion the premium with refer- 
 ence to the duration of the risk, which may be greater 
 in the first hour than in the whole of the rest of the voy- 
 age ; in all cases, therefore, where the risk under the 
 policy is entire, if the ship once get under weigh and 
 sail on the voyage insured, the premium is acquired, 
 though she may return the next instant and wholly 
 abandon the voyage. 
 
 So where the Insurance is " at and from," and the 
 risk under the policy entire, there can be no return of 
 premium, though the ship may be lost while at the port 
 waiting to take in a cargo. 
 
 The general rule seems to be that where no usage is 
 proved to the contrary, an entire premium cannot be di- 
 vided and apportioned unless the risks be divided in the 
 
464 MARINE INStJIlAlTCE. 
 
 policy in such a manner as to show that the parties had 
 distinct risks in contemplation. 
 
 A return on account of a less amount heing put at risk 
 than is insured, is called a return of premium for short 
 interest. But an action for the return of premium on ac- 
 count of short interest will not lie if the interest of the 
 party to the extent insured were covered at any time 
 during the voyage. 
 
 If on an open policy the underwriters agree to insure 
 all shipments, on account of the insured made between 
 certain ports within a fixed time, at a certain rate for 
 each shipment according to its value, the insured is 
 bound to pay the premium for every shipment. New 
 York Fire M. Ins. Co. v. Roberts, 4 Duer, 141. But 
 if the policy were intended to cover such shipments only 
 as the insured might elect to have indorsed, he would 
 be liable for the premium for no others. In other words, 
 the underwriters are entitled to the premiums only if 
 they would have been liable if the goods had been lost. 
 E. Carver Co. v. Manufacturers^ Ins. Co., 6 Gray, 214. 
 
 With regard to return of premium for short interest, 
 over insurance and double insurance, the principle on 
 which the cases depend is simply this : that if the un- 
 derwriter could at any time, and under any conceivable 
 circumstances, have been called on to pay the whole 
 sum on which he has received premium, in such case 
 the whole premium is earned, and there shall be no re- 
 turn; if, on the other hand, he could never, in any 
 event, have thus been called on to pay the whole, but 
 a part only of the amount of his subscription (say a half 
 or a fourth), he ought not to retain a larger proportion 
 
WAERANTIES. 465 
 
 than one half or one fourth of the premium, and must 
 return the residue. Holmes y. United Ins. Co., 2 John 
 Cas., 329 ; Pollock v. Donaldson, 3 Dallas, 510 ; Fos- 
 ter Y. U. S. Ins. Co., 11 Pick., 85; Finney v. Warren 
 Ins. Co., 1 Metcaif, 16. 
 
 American policies generally contain a provision, that 
 " if the assured have made any prior insurance upon the 
 property, the insurers shall he answerable for so much 
 only as the amount of such prior insurancie may he defi- 
 cient towards covering the property, and shall return the 
 premium upon as much of the sum insured as they 
 shall be exonerated from, by such prior insurance." 
 
 This clause is, of course, not applicable to simultane- 
 ous policies, since they are not prior and subsequent in 
 respect to each other. 
 
 Waebanties. 
 
 A warranty is a stipulation or agreement, on the part 
 of the insured, in nature of a condition precedent. There 
 are stipulations frequently introduced into policies, 
 which do not fall under this definition ; but are rather 
 exceptions to the general terms of the contract, by which 
 the underwriter is to be exempted from certain risks, 
 either wholly or in part. Of this description are the 
 " warranty to be free of particular averages," in the 
 common memorandum, and the " warranty to be free 
 from capture in port ;" These are exemptions rather 
 than conditions precedent. 
 
 Warranties are either express or implied. An express 
 30 
 
466 MAKINE INSURANCE. 
 
 warranty is a particular stipulation, introduced into the 
 written contract, by the agreement of the parties ; as, 
 that the thing insured is neutral property, that the ship 
 shall sail hy a given day, that she shall depart with con- 
 voy &c. An implied warranty is that which necessa- 
 rily results from the nature of the contract ; as that the 
 ship shall be sea-worthy when she sails, that she shall 
 be navigated with reasonable skill and care, that the 
 ship shall not deviate from the usual course of the voy- 
 age &c. 
 
 Express Warranties. 
 
 An express wai-ranty is a stipulation inserted in writ- 
 ing on the face of the policy, on the literal truth or ful- 
 filment of which, the validity of the entire contract de- 
 pends. 3 Kent, 5th ed. 288. 
 
 A non-compliance with a warranty, though it occa- 
 sion no damage, and do not change or increase the 
 risk, has the effect of discharging the underwriter from 
 liability. 
 
 The warranties that most frequently occur in policies 
 of Insurance, are, 1st, Warranty of Ownership ; 2nd, 
 Warranty of Neutrality ; 3rd, Warranty of the time of 
 sailing; 4th, Warranty to sail with convoy; 5th, Partic- 
 ular warranties and stipulations ; — They will be found 
 treated at length in all works on Insurance ; here, we 
 have space to consider them but briefly : 
 
 1st, Warranty of Ownership. 
 
 The insurers have the right of personal selection ; 
 they may be willing to insure for one person and not for 
 
WAERANTIES. 467 
 
 another ; and therefore the usual clause, that the poli- 
 cy shall be void if assigned without their consent, is 
 certainly valid, whatever may be the right to transfer 
 in the absence of this clause. 
 
 2nd, Warranty of Neutrality. 
 
 A warranty that the ship or goods are neutral or neu- 
 tral property, is an engagement on the part of the as- 
 sured, that it is owned by persons resident in a country 
 at peace when the risk begins, and who have the com- 
 mercial character of subjects of such country, and that 
 it shall be accompanied with such documents, and shall 
 be managed and conducted by the assured and their 
 agents so, as to be entitled, as far as depends on them, to 
 all the protection and privileges of property belonging to 
 the subject of such country. Phillips on Insurance, 783. 
 
 Under this warranty the cargo must be accompanied 
 by proof of its national character; the invoices, bills of 
 lading, the letters relating to the goods, and the certifi- 
 cates of consuls or other officers, must all be consistent 
 with, and confirm, the warranty. Griffith v. Ins. Co. 
 of N. America, 5 Binn., 464. 
 
 As the warranty of neutrality of property requires ac- 
 tual neutral ownership, and proper proof of this, so it 
 requires such trade, conduct and course of transaction 
 as shall be in conformity and adaptation to this warran- 
 ty. And, therefore, if the neutral interests or property 
 be undistinguishably mixed up with belligerent inter- 
 ests or property, they become liable themselves to all the 
 incidents and effects of a belligerent character. 2d Par- 
 sons, 116. 
 
468 MARINE INSURANCE. 
 
 The law of nations in respect to neutrality is control- 
 led to a considerable extent by treaties between different 
 countries, the terms and provisions of which must be 
 strictly complied with. 
 
 As to what articles are contraband, and what particu- 
 lar acts, trade &c., are held by belligerents to be unlaw- 
 ful. See Chitty on the Law of Nations, and Wheaton 
 on Captures. 
 
 8d, Warranty of the time of sailing. 
 
 Probably one of the most important of all express 
 warranties, is that which alleges either that the ship 
 has sailed, or that she will sail on, before or after a given 
 day. 
 
 A vessel has sailed the moment she weighs anchor or 
 casts off her fastenings and gets under weigh, in com- 
 plete preparation for the voyage, with the purpose of 
 proceeding to sea, without further delay at the port of 
 departure. 
 
 The ship must be actually moving, with the intention 
 of prosecuting her voyage. 
 
 If the ship have broken ground on her sea voyage, 
 and once got fairly under sail for her place of destina- 
 tion, though she may have gone a little way only, and 
 she afterwards put back from stress of weather, or be in 
 any way afterwards detained, yet, as there will have 
 been a beginning to sail on the voyage insured, the 
 warranty will be held to have been complied with. 
 Boveny. Hope Ins. Co., 20 Pick., 275 ; Union Ins. Co. 
 V. Tyson, 3 Hill, 118. 
 
WABRANTIES. 469 
 
 \th, Warranty to sail with convoy. 
 
 A warranty to sail or depart with convoy, is under- 
 stood to mean that the ship shall sail with the convoy 
 appointed by the government for the voyage ; and, if 
 convoy be usually furnished for a part of the voyage 
 only, it is no breach of the warranty to perform the re- 
 mainder without any convoy. It is generally necessary 
 to obtain sailing orders, because without them the mas- 
 ter cannot answer signals, or know the place of rendez- 
 vous in case of a storm, and he does not in effect put 
 himself under the protection of the convoy, and there- 
 fore the underwriters are not benefited. 
 
 5th, Particular Warranties and Stipulations. 
 
 A great variety of warranties and stipulations is oc- 
 casionally introduced into policies of insurance, which 
 not unfrequently results in litigation. It is im- 
 possible to enumerate these several stipulations, or to 
 lay down any definite rules regarding them. It may 
 be observed, however, that no cause, however sufficient; 
 no motive, however good; no necessity, however irresis- 
 tible, will excuse non-compliance with an express war- 
 ranty ; if it be not in fact complied with, though for the 
 best reasons, the policy is void. 
 
 A warranty, like every other part of the contract, is to 
 be construed, as to the terms it employs, according to 
 the understanding of merchants, and does not bind the 
 insured beyond the commercial import of the words. 
 
 Implied Wakbanties. 
 
 An implied warranty, condition or stipulation, is an 
 
470 MARINE INSUEANCE, 
 
 agreement not expressed in the policy, but presumed 
 from the fact of making insurance. The warranties im- 
 plied in every policy of Insurance, are seaworthiness, 
 proper documentation, and not to deviate. 
 
 Warranty of Seaworthiness. 
 
 There is in every policy an implied warranty that the 
 ship is seaworthy when the policy attaches. This 
 means, that the vessel is competent to resist the ordina- 
 ry attacks of wind and weather, and is competently 
 equipped and manned for the voyage, with a sufficient 
 crew, and with sufficient means to sustain them, and 
 with a captain of general good character and nautical 
 skill. 
 
 We have already considered the subject of seaworthi- 
 ness at some length, under the heads of Partial and To- 
 tal Loss. We shall mention here only, that there is no- 
 thing in the law of Marine Insurance more important, 
 with a view to both the benefit of commerce and the pre- 
 servation of human life, than to enforce, as far as possi- 
 ble, a strict compliance with this warranty ; as other- 
 wise the eiFect of insurance might be to render those 
 who were protected from loss by the policy exceedingly 
 careless about the condition of the ship, and the conse- 
 quent safety of the crew. The Courts, accordingly, have 
 held that the seaworthiness of the ship for the voyage, 
 when she sails, is a condition precedent to the under- 
 writer's liability for any loss incurred in the course of the 
 voyage. 
 
WARRANTIES. 471 
 
 T)eviation. 
 
 Deviation means a voluntary departure without ne- 
 cessity, or any reasonable cause, from the regular and 
 usual course of the specific voyage insured ; or it is a 
 varying of the voyage ; and it matters not whether the 
 risk be increased or diminished thereby, the effect in 
 either case being the same — to terminate the responsi- 
 bility of the underwriters. 
 
 It is not necessary to prove that the risk has been en- 
 hanced by the delay or deviation. The underwriters 
 undertake to indemnify the assured only upon the im- 
 plied condition that the risk shall remain precisely the 
 same as it appears to be on the face of the policy. In- 
 surance is a contract whereby, for a stipulated premium 
 the underwriters agree to indemnify the assured against 
 certain perils or risks ; and that the contract may be 
 fair between the parties, the premium must be adequate, 
 or in due proportion to the risks. But this would be im- 
 possible unless the risks can be to a certain extent 
 known beforehand, and therefore estimated. If the In- 
 surance be upon a voyage, it must be distinctly stated ; 
 and its course and termini being known, the underwri- 
 ters may then judge of the risks to be encountered on 
 that voyage. It is, therefore, always presumed that the 
 voyage is to be pursued in the most direct and safe 
 course, and the adventure conducted, in general, in the 
 most expeditious manner as far as is consistent with 
 safety ; and if there be any departure from such course 
 or mode of conducting the adventure, whereby the risks 
 insured against are varied or increased, the assvired must 
 
472 MARINE INSURANCE. 
 
 justify such departure, by showing either a usage in 
 that respect, or a reasonable necessity. 
 
 We hare elsewhere shown what will amount to a de- 
 Tiation so as to release the underwriters, it is therefore 
 unnecessary to enter fully into it again in this chap- 
 ter. See Liability of Underwriters in chapter on Par- 
 tial Loss 
 
INDEX 
 
IJS^DEX. 
 
 .A. 
 
 ABANDONMENT. p^se 
 
 See Total Loss and Abandonment, . . 271 
 
 ACCIDENTAL STRANDING. 
 
 See General Average. 
 
 After deviation for general benefit, . . 76 
 
 ADJUSTMENT. 
 
 See General Average, .... 193 
 
 Place where average ought to be adjusted, . . 193 
 
 Liability of underwriters as to foreign adjustment, 197 
 
 By whom adjustments are made, . . . 204 
 
 ADVANCES ON FREIGHT. 
 
 Insurable interest on, .... 448 
 
 AGENTS. 
 
 Commission of, at port of refuge, . . . 161 
 
 ANCHORS. 
 
 Voluntarily slipped, . . . . 50, 51 
 
 Contribution for loss of . . 50, 51, 52 
 
 Loss of, by anchoring of necessity under extraordi- 
 nary circumstances in an unusual and danger- 
 ous place, ..... 52 
 Damaged in forcing a stranded ship ofi', . . 74 
 
INDEX. 
 
 AUCRORS— {Continued.) page 
 And chains shipped after chain parted, . . 166 
 Cost of unsuitable anchor and chain, where no oth- 
 ers could be procured, .... 167 
 Hire of anchor and chain to avoid purchasing, 167 
 As to deduction from value of . . . 204 
 
 ANCHORING ON LEE SHORE 
 
 Damage by, whether contributed for . . 53 
 
 ANIMALS TO A MARKET. 
 
 Whether they contribute in general average, . 179 
 
 ANTWERP. 
 
 Law and usage of, see General Average. 
 
 ARBITRATION. 
 
 Master ought not to refer a question of salvage to, 116 
 
 AVERAGE GENERAL. 
 
 See General Average. 
 
 AVERAGE PARTICULAR. 
 
 See Partial Loss. 
 
 IB 
 
 BA.LLAST. 
 
 Absence or insufficiency of, renders vessel unsea- 
 ^orthy 237 
 
 BANK NOTES. 
 
 Whether they contribute in general average. . 180 
 
 BARRATRY. 
 
 Definition of, 226 
 
INDEX. 
 
 BA-RRATRY— (Continued.) p^^e 
 
 What exonerates underwriters from loss by, . 227 
 
 Cases of Barratry, • . . . . 227 
 
 Assured cannot recover for loss by, unless barratry 
 
 produced the loss, • ... 228 
 
 BELGIUM. 
 
 Law and usage of, see General Average. 
 
 BOATS. 
 
 Stern boat cut away, . ... 49 
 
 BOTTOMRY and RESPONDENTIA. 
 
 Defined 3O9 
 
 Owner may make bottomry bond any where, . 311 
 Master can do so abroad only, and from necessity, 311, 312 
 Master's power in this respect, analogous to his 
 
 power to sell, . . . • . 312 
 
 Master cannot give bond, if owners can be consulted, 312 
 
 Or if he have ftinds of owner within his reach, . 812 
 
 Or can borrow money on personal credit of owner, 312 
 
 Or if consignee be there with funds of the owner, 313 
 
 Or any agent of the owner, 313 
 
 Or if master have funds of his own, . . . 313 
 
 Essential pre-requisites to validity of bottomry bond, 313 
 Bottomry bond given after advances made, when 
 
 void ... . . 314 
 If advance be originally made on personal credit, 
 
 bond invalid, . . . . . 314 
 
 In a suit on bottomry, what libellant must prove 314 
 Where bills of exchange drawn on account of the 
 
 supply, and bond given as a collateral security, 314 
 
 When borrower on, discharged of payment . 315 
 
 Liability of insurer on a bottomry interest, . 315 
 In case of deviation or abandonment of voyage, 
 
 bond becomes absolute and payable, . 315 
 
INDEX. 
 
 BOTTOMRY and RESPONDENTIA— (CowimMerf) page 
 
 A bond may be good in part, and bad in part, . 315 
 
 Courts of admiralty construe liberally, instruments 
 
 produced in cases witbin their jurisdiction, . 315 
 
 Bottomry bond does not make owners personally 
 
 debtors, ..... 315 
 
 Bottomry bond which hypothecates the ship, does 
 
 not, of necessity, hypothecate the freight also, 315, 31.6 
 Bottomry bond is preferred to any other lien what- 
 ever, ...... 316 
 
 Except lien of seamen for wages, . . 316 
 
 And lien of material men for repairs or supplies 
 
 indispensable to vessel's safety, . . .316 
 
 Bottomry bond generally regarded as a negotiable 
 
 instrument, . . - - - 316 
 
 Master may hypothecate either a part or the whole 
 
 of cargo, if necessary, 317 
 
 What ought to be expressed in a bottomry bond, 318 
 
 When two or more bonds are given, last takes pre- 
 cedence, with one exception, .... 318 
 Whether bond can be given to consignee of ship, . 318 
 Or to any party holding, to ship owner, the relation 
 
 of agent to principal, 318 
 
 Form of Bottomry bond 319 
 
 Bottomry premium on expenses incurred at port of 
 
 refuge 143 
 
 Insurable interest of lender and borrower on, . 444 
 
 BRAZIL. 
 
 Law and usage of, see General Average. 
 
 BULWARKS. 
 
 Cut away to relieve vessel of water, ... 46 
 
 BILL OF LADING. 
 
 See Carriage of Goods, 392 
 
INDEX. 
 
 o 
 
 CABLES. PAGE 
 
 Loss of, see General Average, ... 50, 51, 52 
 
 CAPTURE. 
 
 Expense of delay and making claim for vessel and 
 
 cargo in case of, 114 
 
 Salvage in case of . . . • . . 115 
 
 CARGO. 
 
 Jettison of, which endangers vessel, . . . 26 
 Jettison of, by vessel being too heavily laden, . 26 
 
 Jettison of deck cargo, 32 
 
 Damage to, by being got on deck in order that it 
 may be jettisoned, or to get at other goods which 
 the crew intend to jettison, .... 37 
 
 Damage to, by water getting down the hatches whilst 
 
 jettison is taking place, 37 
 
 Damage to, by breakage and chafing or otherwise, 
 from derangement of stowage consequent upon a 
 
 jettison, 40 
 
 Damage or loss to, by water getting down in conse- 
 quence of mast being cut away, ... 40 
 Damage or loss to, by putting it into the water or 
 into lighters alongside the ship which is aground, 
 
 in order to get ship off, 41 
 
 Damage or loss to, by discharging at port of refuge, 79 
 Loss to, by sales effected to pay general average ex- 
 penses at port of refuge 32 
 
 Damage to, by pouring water down to extinguish 
 
 fire, 84 
 
 Damage to, by scuttling a ship to extinguish fire, 85 
 
 Loss of interest on capital, by detention at port of 
 
 refuge, 85 
 
 Cargo paid as ransom to pirate or public enemy, 110 
 
INDEX. 
 
 CARGO — ( Continued) page 
 
 Discharging cargo and carrying to a point of safety 
 
 to repair ship, 121 
 
 Discharging cargo to cool &c 123 
 
 Discharging cargo because pumps are choked, . 123 
 
 Discharging cargo in order to extricate ship and 
 
 cargo from a perilous situation, .... 124 
 Expenses incurred to restow cargo when shifted by 
 
 perils of the sea, 129 
 
 Expenses of bagging cargo when it is in bulk in a 
 
 port of refuge, . 128 
 
 Expense of airing and cooling cargo in a port of re- 
 fuge, 129 
 
 Expense of coopering casks as far as rendered ne- 
 cessary by discharging, ..... 129 
 Warehouse rent on cargo at a port of refuge, . 130 
 
 Expense of shipping cargo at a port of refuge, . 130 
 Expense of forwarding cargo to port of destination 
 
 by another vessel, 130 
 
 Landing cargo when vessel is wrecked or condemn- 
 ed at port of refuge, 144 
 
 Mode of adjusting partial loss of cargo . 254, 268, 269 
 Extent of underwriter's liability for partial 
 
 loss of cargo, 254,267,268 
 
 Loss from sale of goods necessarily sold at port of 
 
 distress to defray expenses, how recovered, . 267 
 
 Underwriter's liability, where cargo forwarded, . 268 
 
 Underwriters not liable for loss caused by inherent 
 
 defects, 268 
 
 Constructive total loss of, 300 
 
 CARRIAGE OF GOODS. 
 
 Ship must be seaworthy in all respects . . . 379 
 With sufficient master and crew, . . . 379 
 Care must be taken as to landing, carrying and de- 
 livering of goods, 879 
 
INDEX. 
 
 CARRIAGE OF GOODS— Continued. page 
 
 Ship must be navigated in usual way, and withont 
 unnecessary delay or deviation , . . . 879 
 
 Ship-owner responsible for failure to comply with 
 above mentioned particulars, . . 879 
 
 And ship itself is subjected to lien of shipper, 879 
 
 When carriage duly performed, ship owner has a 
 
 lien on the goods for freight, . . 379 
 
 After goods once laden on board, shipper cannot re- 
 claim them without payment of freight, 880 
 
 Ship-owner liable for goods lost off deck, if so carri- 
 ed without consent of shipper, . 880 
 
 But if no damage result from carrying them on 
 
 deck, shipper must pay freight, 380 
 
 Master has a right, on his arrival at port of delivery, 
 
 to retain goods until freight be paid by consignee, 880 
 
 But the goods must be taken out of the vessel, and 
 master ready to deliver them on payment or ten- 
 der of freight, ..... 380 
 
 Master may detain any part of the merchandise for 
 
 freight of all that is consigned to same person, 381 
 
 But if goods be sold to different consignees, and part 
 delivered, master has not a lien upon the residue 
 60 as to compel one purchaser to pay freight for 
 what has been delivered to another purchaser, . 881 
 
 Lien may be waived by consent, and often is by stip- 
 ulation in charter parties, . • 881 
 
 Shipper bound to pay full freight if cargo specifi- 
 cally remain, though by sea-damage it may be ut- 
 terly ruined and worthless, . . . 881 
 
 Shippers cannot demand cargo at any port short of 
 the port of destination, without full payment of 
 freight, whether cargo damaged or not, . 882 
 
 Freight paid in advance, to be repaid if goods not 
 carried, unless there be a special agreement to the 
 contrary, ...••• 
 31 
 
 382 
 
INDEX. 
 
 CARRIAGE OF GOODS— Continued. page 
 
 Unless non-performance of contract be occasioned 
 by neglect of shipper, 382 
 
 If ship be disabled in course of the voyage and can 
 be repaired in a reasonable time, master not bound 
 to tranship, .... ... 383 
 
 If ship cannot be repaired at all, or not without ve- 
 ry great loss of time, master at liberty to tran- 
 ship and earn whole freight, . . . 383 
 
 And in such case freighter bound to pay extra 
 freight, 383 
 
 But not the old and new freight united, . . 383 
 
 No freight is due for goods which perish by perils 
 
 of the seas in the course of the voyage, . . 383 
 
 But if the commodity be lost by other causes than 
 the perils of the sea, such as internal decay, leak 
 age, evaporation and the like, freight is due ne- 
 vertheless, 384 
 
 Owner of liquids or any other articles shipped in 
 casks, is responsible for loss arising from insuffi- 
 ciency of casks, 384 
 
 But the effect of an unqualified bill of lading is to 
 transfer this responsibility to captain and owner 
 of vessel, 384 
 
 Explicit words should be introduced into bill of la- 
 ding, to do away with obligations imposed upon 
 master and owner, .... . . 385 
 
 Consignee or assignee claiming goods under bill of 
 lading, bound by the terms of it, ... 385 
 
 But consignor not exempt, 386 
 
 Freight due upon goods sold at intermediate port, . 387 
 
 So of cargo jettisoned, 887 
 
 Chaeter Party. 
 
 Usual stipulations in, 887 
 
 31 
 
PAGE 
 
 INDEX. 
 
 CARRIAGE OP GOODS— Caniinued. 
 
 Owner bound to keep ship tight, stanch and strong 
 
 during the voyage, 388 
 
 Where vessel chartered by the month, freight will 
 not cease to accrue during time exhausted in ma- 
 king repairs, if there be no delay in having them 
 made, ... . . . 388 
 
 Cases where whole vessel chartered, and freighter 
 neglects to furnish full cargo, . . 389 
 
 Whether charterer may underlet the vessel, . . 389 
 
 Charterer to victual and man vessel, unless stipula- 
 tion to the contrary, ..... 389 
 
 Cases where general owner remains owner tor the 
 voyage, ... . . 389 
 
 Where freighter does not furnish a full lading, mas- 
 ter cannot complete lading with other goods, 
 without freighter's consent, . . . 389 
 
 Freighter entitled to the full enjoyment of the ship, 390 
 
 If merchant be not ready at appointed time to load 
 
 a cargo, master at liberty to seek alnother, . 390 
 
 And has also his remedy lor damages, . . 390 
 
 Where a certain number of lay days are stipulated 
 by the charter party for unloading, consignee not 
 bound to receive the goods as soon as master is 
 ready to deliver, 390 
 
 And freight not earned until actual delivery to con- 
 signees, ■ . 390 
 
 If besides the lay-days, a further period be allowed 
 by a clause of demurrage, master bound to wait 
 that period also, ... . 390 
 
 But not bound to wait for cargo beyond that time, 391 
 
 Where charterer stipulates to ship a full cargo of 
 heavy and light goods, he is not obliged to 
 load enough heavy goods to keep ship in proper 
 trim, but ship-owner bound to provide sufficient 
 ballast, . . 891 
 
INDEX. 
 
 CARRIAGE OF GOODS— Continued. ^age 
 
 Bill of Lading. 
 
 Definition and contents of, ... • 392 
 
 What primage and average denote . • • 392 
 
 Master should not admit statements in bill of lading 
 
 inconsistent with fact, . . • • . 393 
 
 When burden of proof on shipper, . . . 393 
 
 When on ship-owner, 393 
 
 Meaning of clean bill of lading, .... 393 
 
 Bill of lading imports that all goods are to be safe- 
 ly secured under deck, unless the contrary appear 
 
 on its face, 894 
 
 Bills of lading are transferable by endorsement, 894 
 
 Whether any person but consignee can by endorse- 
 ment on bill of lading pass the legal title to the 
 
 goods, . . 394 
 
 Assignee of bills of lading claiming and receiving 
 
 goods under it is bound by the terms of it, . 395 
 What should be written in bill of lading, where 
 there is reason to suspect quantity is not right, or 
 that there is damage in the goods, . . . 895 
 Master cannot demand his freight, without being 
 
 ready to deliver the goods on payment of it, 396 
 
 Nor can sliipper demand his goods without a tender 
 of freight, 
 
 Delivery of the Goods. 
 
 Personal delivery not necessary, . . . 397 
 
 Delivery must be on a wharf suitable for the cargo, 397 
 If goods be injured ■ in consequence of the insuffici- 
 ency of the wharf, vessel liable, .... 397 
 Goods must not be piled on the wharf promiscuous- 
 ly with those of other consignees, . . . 397 
 Master to notify consignee of vessel's arrival, and 
 of his readiness to discharge, .... 898 
 
INDEX. 
 
 CARRIA.GE OF GOOBB— Continued. page 
 
 Consignee has a reasonable time to inspect goods 
 and determine whetlier or not he will accept the 
 
 consignmeni, 898 
 
 Till he do accept, he is not liable for freight, . 398 
 
 Master bound to store unaccepted goods for benefit 
 
 of owner, 393 
 
 What are proper days and hours for delivery of 
 
 cargo, . 398 
 
 Termination of carrier's liability, .... 399 
 Whether contract of the ship-owner or master con- 
 tinues till the whole consignment be out of the 
 ship and ready for delivery, .... 400 
 
 Usage in Boston as to delivery of cai'go, . 400, 401 
 
 CHARTERER. 
 
 See Carriage of Goods. . . ... 387 
 
 Insurable interest of, 887 
 
 CHARTER PARTY. 
 
 See Carriage of Goods 887 
 
 CHAINS. 
 
 Voluntarily slipped, 50, 51 
 
 Damaged in forcing a stranded ship off, . . 73 
 
 Jettison of chains on deck, ..... 36 
 
 COLLISION. 
 
 Possibilities under which an accident of this sort 
 
 336 
 
 may occur, 
 
 Nautical rules by which; in most cases, the ques- 
 tion of negligence is decided, . . . 336 
 
 Collision by swell caused by a passing steamer, . 337 
 
 Collision with a third vessel, by one vessel running 
 into another, 337 
 
 Liability for damage to cargo, where collision is nei 
 ther an act of God, or a peril of the sea. 
 
 338 
 
INDEX. 
 
 COLLISIO'N— Continued. page 
 
 Underwriters liable for loss by, although caused hy 
 
 negligence of, master or crew, . , . 338 
 
 But collision so occurring will not exempt ship- 
 owner from being liable to shipper for damage 
 
 caused thereby, 338 
 
 As to necessity of vessels' exhibiting a light, . 338 
 
 Rules to be observed by steamers, . . . 339 
 
 In general, established rules and known usages 
 should be carefully observed, by sailing vessels 
 
 and steamers, . .- 340 
 
 But not where they would certainly cause danger, 340 
 Rule for measuring damages in a case of collision, 340 
 Rule lor deducting one-third, does not apply to a 
 
 claim against the vessel doing damage, . . 340 
 Assured has a lawful right to compensation for de- 
 tention to repair damage caused by collision, 341 
 Whether underwriters liable for damage done to 
 another vessel, not insured by the policy, by-a,^ 
 collision caused by negligence of those on board 
 the vessel insured, .... 846 
 In case of collision, the first remedy of the owner 
 
 is against his underwriters, if he choose to take it, 350 
 And may afterwards at request of insurers, and on 
 th.'ir beliaif, take proceedings against the vessel 
 by which his own was injured, . . . . 350 
 
 Reasons why a settlement by the other vessel, is 
 
 preferable to a settlement by underwriters, . 350 
 
 In cases of collision, when amount of damage is as- 
 certained by a proceeding in rem, the lien of dam- 
 age to the extent of the value of the vessel takes 
 priority of all other liens, . . . 352 
 
 But where the guilty vessel has been repaired after 
 collisicm by means of a bottomry bond, the lien 
 of damage does not extend, . . , . 352 
 
PAGE 
 
 INDEX. 
 
 COMMISSIONS. 
 
 Insurable interest in, . . 446 
 
 Allowed master's consignee, .... 161 
 
 Allowed for collecting general average, . . .120 
 
 On advances for general average purposes, . . 119 
 
 COMMUNITY OF INTEREST, 
 
 When dissolved so as to cause general average to 
 
 cease, . 144 
 
 CONCEALMENT. 
 
 As relating to policies of insurance, . . . 460 
 
 CONSTRUCTIVE TOTAL LOSS. 
 
 See Total Loss and Abandonment, . . . 271 
 
 CONSIGNEE. 
 
 Insuriible interest of, . . ... 445 
 
 Duty of master's consignee at port of refuge, 375 
 
 Custody commission of, • • . . 161 
 
 CONSULTATION WITH CREW. 
 
 Whether necessary before making a jettison, . . 20 
 
 CONTRIBUTION. 
 
 See General Average, ..■■,■ 168 
 
 COPPER. 
 
 Damage to, by wreck of mast cut away, . . 48 
 
 COPPER CLAUSE. 
 
 Construction of, • .... 223, 224 
 
 COPPER SHEATHING. 
 
 As to deduction from repair of, . • . • 223 
 Mode ol sheathing vessels, 225 
 
INDEX. 
 
 CREW. !'*•''= 
 
 Gratuities to, whether allowed in general average, 138 
 Whether wages, or effects of, contribute, . • 179 
 
 CUBA. 
 
 Law and usage of, see General Average. 
 
 ID 
 
 DECK LOAD. 
 
 Loss of, whether contributed for, .... 32 
 Contribution of ..•,•• 1^1 
 
 DELIVERY OF CARGO. 
 
 See Carriage of Goods, 897 
 
 DAMAGE TO SHIP. 
 
 See General Average 43 
 
 DERELICT. 
 
 Rule of compensation to salvors in cases of, . . 827 
 
 DOUBLE INSURANCE. 
 
 As relating to policy of insurance, .... 450 
 
 DEVIATION. 
 
 See Partial Loss, 244 
 
 See Marine Insv/rance, 471 
 
 DENMARK. 
 
 Law and usage of, see General Average, 
 
INOEZ. 
 
 EARNING AND PAYMENT of WAGES. p^OE 
 
 See Wages of Seamen, ^qq 
 
 EXCEPTED LOSSES. 
 
 " Free from average unless general,"— "Against to- 
 tal loss,"— "Aeainst total loss only "— " Free from 
 particular average," — "Not liable for partial 
 loss," — "Partial loss excepted," — 302 
 
 ENGLISH LAW and USAGE. 
 See General Average, 
 
 EXPENSES. 
 
 See General Average, ■ ■ ... 86 
 
 EXPRESS WARRANTIES. 
 
 See Warranties, 466 
 
 FIRE. 
 
 Loss by, see Partial Loss, 248 
 
 Damage from water in the prevention of . . 84 
 
 FOREIGN ADJUSTMENT. 
 
 How far binding, 197 
 
 FREIGHT 
 
 See Partial Loss, ...... 270 
 
 Earning and payment of, see Carriage of Goods, 379 
 
 Contributory value of, in general average, . . 181 
 
 Loss of, by voluntary stranding, .... 78 
 
 Loss of, by jettison of cargo, 36, 79 
 
 Adva nces on account of) .... 185 
 
INDEX, 
 
 FREIGHT — Continued. page 
 
 See Total Loss and Abandonment, .... 804 
 
 Rules respecting the eflfect of valuation of, . . 439 
 
 Paid in advance, insurable interest on, . . . 448 
 
 FRANCE. 
 
 Law and usage of, see General Average 
 
 FimDS. 
 
 Raised for the common benefit, . . . 106, 309 
 Underwriters not bound to supply funds in a for- 
 eign port for repairs, 230 
 
 o 
 
 GENERAL CLAUSE. 
 
 Respecting other perils, liability of underwriters under, 249 
 
 GERMANY. 
 
 Law and usage of, see General Average. 
 
 GENERAL AVERAGE. 
 
 General Principles — 
 
 Common interest, 15 
 
 Voluntary and deliberate act, 17 
 
 Amount of danger requisite to justify a general av- 
 erage act, 18 
 
 Whether a successful result be necessary, . . 18 
 
 No contribution, if, at the time of sacrificing the 
 
 cargo, there were no possibility of saving it, . 18 
 Whether it be necessary to consult with crew previ 
 ous to the commission of an act of general ave- 
 rage, 20 
 
INDEX. 
 
 GfENEIL\L AYEU/iG^— Continued. 
 
 Jettison and its consequences — - page 
 
 Jettison and expenses incurred to float a stranded 
 
 ship, 21 
 
 When community of interest dissolved, . . 22, 144 
 Jettison to prevent a vessel foundering, ... 25 
 
 to enable a vessel to escape an enemy, . 2o 
 
 of goods which endanger the vessel and the 
 
 property in her, (c<u-go heated &c.) 26 
 
 rendered necessary from the ship being too 
 
 heavily laden to encounter the or- 
 dinary perils of the sea, . . 26 
 
 Where the unseaworthiness of the vessel, at the 
 time of sailing on the voyage caus- 
 ed, or contributed to produce, the 
 necessity for the jettison, . 26 
 
 "Whether the property in ]ieril and rescued, must be 
 
 saved by the saci'ifice, .... 27 
 
 Freight of jettisoned goods, .... 85 
 
 Jettison of deck cargo, 32 
 
 - ship's stores, 36 
 
 water casks on deck, .... 86 
 
 chains on deck, .... 86 
 
 Ship's stores in a state of wreck, .... 87 
 Damage or loss to cargo, by being got on deck in 
 
 order that it ma\ be jettisoned, or to get 
 at other goods which the crew intended to 
 jettison, • 37 
 
 Damage to cargo by water getting down the hatch- 
 es while jettison is taking place, 87 
 
 Damage done by breakage and chafing or otherwise, 
 from deraugement of stuwnge consequent 
 upon a jettison, • 40 
 
 Damage or loss to cargo, by water getting down in 
 
 consequence of mast being cut away, . 40 
 
INDEX. 
 
 GENERAL AYERAGB-^ Continued. 
 
 Jettison and its consequences — Continued. page 
 
 Damage or loss to cargo, by putting it into the wa- 
 ter or into lighters alongside a ship which 
 is aground in order to get the ship off, . 41 
 Damage done to the ship in order to effect a jettison, 42 
 Application of something belonging to the ship to 
 a use difierent from that to which it is ap- 
 plied in the ordinary course of navigation, 48 
 DamagIe TO Ship. 
 Cutting away masts, sails &c., to tighten a ship on 
 
 her beam ends, 48 
 
 Whether a loss of sails and spars by carrying a press 
 of sail to keep off a lee shore, or escape an 
 enemy, be a subject for contribution, . 44 
 Sails blown away when let go to righten the ship, 45 
 
 Bulwarks cut away to relieve a vessel of water 
 
 which floods her decks, .... 46 
 Masts cut away when in a state of wreck, . . 46 
 Damage of copper by wreck of mast cut away be- 
 fore it is finally released from the vessel, . 48 
 Spar or sail cut away to save a mast, ... 49 
 
 Stern boat cut away, 49 
 
 Anchor and chain voluntarily slipped to avoid be- 
 ing driven on shore, or to escape an ene- 
 my, or running foul of other vessels, or to 
 avoid any other impending peril, . . 60 
 
 temporarily foul, slipped to avoid immi- 
 
 nent peril, 51 
 
 when foul under ordinary circumstances, 52 
 
 Loss of chain a,nd anchor, by anchoring of necessity 
 
 under extraordinary circumstances in an 
 unusual and dangerous place, ... 52 
 Damage caused by steamers or lighters, in forcing 
 
 off a stranded ship, 55 
 
INDEX. 
 
 GENERAL ATERAGB— Continued. 
 
 Damage to Ship — Continued. 
 
 Damage when the result of mismanagement, . 55 
 
 Voluntary damage to ship, which is nevertheless 
 totally lost, part of the cargo being in 
 lighters, and thus saved at time of the vol- 
 untary sacrifice, . ... 65 
 Damage to ship by voluntarily running her on 
 
 shore, 56 
 
 "When a ship is in peril so imminent that her total 
 loss is inevitable, to all appearances, whe- 
 ther a voluntary stranding made with a 
 view of saving the ship and cargo from 
 total destruction be to be contributed for, 
 in the event of any thing being thereby 
 
 saved, 61 
 
 Damage to ship, by scuttling to extinguish fire, . 70 
 
 by worms at a port of refuge, . 71 
 
 by defence against pirate or enemy, 71 
 
 Anchor and chain damaged in forcing a stranded 
 
 ship off, 73 
 
 Sails damaged in forcing a stranded ship off, . 74 
 
 Boats lost or damaged in forcing a stranded ship off, 74 
 Damage to ship, by sails cut and altered to serve for 
 
 others lost, 74 
 
 to ship's materials, by using them for pur- 
 poses for which they were not constructed, 
 in order to save all the interests concerned 
 during imminent peril, .... 74 
 Jury masts and ship's stores used in securing masts, 76 
 Accidental stranding, after deviation for the gene- 
 ral benefit, 76 
 
 Loss or damage — voluntarily— to the property of 
 
 others for the general benefit, ... 78 
 
79 
 
 INDEX. 
 
 GENERAL AVERAGE— Cotitinued. 
 
 Loss ON Freight. page 
 
 By jettison of cargo, 79 
 
 By voluntary stranding, 78 
 
 Loss OR Damage to Cargo. 
 
 in discharging when vessel is at a port of 
 
 refuge, . • .... 
 
 by sales effected to pay general average ex- 
 
 penses at a port of refuge, ... 82 
 
 by pouring water down to extinguish fire, 84 
 
 by scuttling a ship to extinguish fire, • 85 
 
 Loss of interest on capital by detention at port of 
 
 refuge, 85 
 
 Expenses. 
 
 Port of refuge expenses — Expenses of entering or 
 quitting a port of distress, to refit, and of 
 discharging and reloading cargo there, 86 
 
 Disbursements made for the common benefit, whe 
 .ther they must be reimbursed in general 
 average, when ship and cargo wholly perish 
 before arriving at the port of destination, 102 
 
 Where, to meet disbursements for the common ben 
 efit, money has been raised upon bottomry 
 and therefore contingent upon the ulti 
 mate safety of the vessel, . . . 106 
 
 Expenses of delay at termination of the adventure, 107 
 
 when frozen up in a port of retiige, . . 107 
 
 of being frozen up in ordinary course of 
 
 the voyage, . . ... 109 
 
 of quarantine, ..... 109 
 
 Goods or money paid as ransom to pirates or a pub- 
 lic enemy for the whole interest, . . 110 
 Expense of delay and making claim for vessel and 
 
 cargo in case of capture, . . . 114 
 
INDEi. 
 
 GENERAL AYERAGE— Continued. 
 
 Expenses — Continued. page 
 
 Salvage in case of capture, 115 
 
 Expenses of remunerating salvage services render- 
 ed for the common safety, in case of ship- 
 wreck, 116 
 
 Commissions on advances for general average pur- 
 poses, 119 
 
 Commissions collecting general average, . . 120 
 
 Interest on money advanced for general average pur- 
 poses, 121 
 
 Expenses discharging cargo and carrying to a point 
 
 of safety, to repair ship, . . . . 121 
 
 discharging cargo to cool &c., cargo, . 123 
 
 because pumps choked, 123 
 
 in order to extricate ship 
 
 and cargo from a perilous situation . 124 
 
 incurred to restore cargo when shifted by 
 
 perils of the sea, 128 
 
 . incurred to enable a vessel to enter her 
 
 port of destination — to cross a bar or shoal 
 
 in her ordinary track, . . • 128 
 
 of bagging cargo when it is in bulk, in a 
 
 port of refuge, ; 129 
 
 of airing and cooling cargo in a port of re. 
 
 fugP, ■ 
 
 of coopering casks as far as rendered neces- 
 sary by discharging, .... 129 
 Pilotage, inward and outward, at a port of refuge, 130 
 Warehouse rent &c., on cargo at a port of refuge, 130 
 Expense of re-shipping cargo at a port of refuge, 130 
 
 . of forwarding cargo to port of destination 
 
 by another vessel, ISO 
 
 Hire of lighters at a port of refuge to avoid landing 
 
 ■ Xc5a 
 
 cargo, 
 
 129 
 
INDEX. 
 
 GENERAL AYERAGE— Continued. 
 
 Expenses — Continued. page 
 
 Wages of men employed to pump, when cargo is on 
 
 board, 132 
 
 when cargo is not on board, vessel in 
 
 ballast, ... . ■ 133 
 
 Wages and provisions of crew during detention at a 
 
 port of refuge, . . . 133 
 
 Wages and provisions of crew during detention for 
 the purpose of prosecuting the voyage on 
 a decree of release, .... 136 
 
 Extra wages to men to supply the places of deserters 
 
 at a port of refuge, 138 
 
 Gratuities promised to seamen in time of danger, 138 
 
 Temporary repairs, 139 
 
 Diving under and examining the ship's bottom, to 
 avoid the necessity of discharging cargo, . • 142 
 
 Expenses on passengers at a port of refuge, . 142 
 
 Ship's provisions consumed by workmen from the 
 shore, when employed in repairing general aver- 
 age losses, 142 
 
 Provisions consumed by wreckers, placed on board 
 to extricate the vessel from an impending peril, 
 and while transporting her to a port of safety, 143 
 
 Bottomry premium on expenses incurred at a port 
 of refuge, 143 
 
 Insurance on expenses incurred at a port of refuge, 144 
 
 Landing cargo when a vessel is wrecked, or proper- 
 ly condemned at a port of refuge — ^when is the 
 community of interest dissolved so as to cause the 
 general average to cease ? 144 
 
 Whether specie, bank bills and goods of passengers 
 be held liable to contribute for jettison or other 
 eacrifice, 152 
 
PAGE 
 
 INDEX. 
 
 GENERAL AVERAGE— Co?j<mMcr^. 
 
 Expenses — Continued. 
 
 Whether the expense of landing specie when a ves- 
 sel is wrecked, or properly condemned in a port 
 of refuge, be general average ? . . . . 152 
 
 Agent's commission, or percentage on value of cargo 
 landed at a port of refuge, commonly called "cus- 
 tody commission." 161 
 
 Expense of surveys, 163 
 
 of shipping an anchor and chain after a 
 
 chain has parted, 165 
 
 Cost of an unsuitable anchor and chain supplied un- 
 der such circumstances-'when no suitable anchor 
 and chain are procurable there, or it forms no part 
 of the master's duty to get them there, • • 167 
 
 Hire of an anchor and chain under such circumstan- 
 ces to avoid purchasing an anchor and chain, . 167 
 
 Expense of freeing the master when arrested for his 
 
 own or his owner's debts, 167 
 
 Contributory Interest. 
 
 Ship, 168 
 
 Cargo, 171 
 
 Whether, and under what circumstances, provisions 
 on board for passengers, or provender tor animals, 
 and consumed on the voyage, contribute, 
 
 Animals to a market, 
 
 Passenger's effects, ...... 
 
 Passage money, 
 
 Crew's wages, 
 
 Crew's effects, 
 
 Government property, 
 
 Profits on cargo, 
 
 Bank notes, .... • • 
 32 
 
 177 
 179 
 179 
 179 
 179 
 179 
 180 
 180 
 180 
 
INDEX. 
 
 GENERAL AVERAGE— Continued. 
 
 Contributory Interest: — Continued. page 
 
 Freight, . 181 
 
 on ships chartered out and home by one 
 
 charter, 183 
 
 Advances on account of freight, .... 185 
 Freight, when the goods are transhipped by ano- 
 ther vessel, . 188 
 
 Specie in ordinary cases, ... . ib9 
 
 Property recovered after jettison, .... 189 
 
 Property sacrificed on first general average, • 190 
 
 Cargo on deck, 191 
 
 Liability of IJNDERWRrrERS 192 
 
 Adjustment. 
 
 Place vrhere average ought to be adjusted, . . 193 
 Liability of underwriters to pay general average ac- 
 cording to foreign adjustment, .... 197 
 By whom adjustments are made, .... 204 
 
 GOVERNMENT PROPERTY. 
 
 Contributes in general average, . . . . 180 
 
 GRATUITIES TO SEAMEN. 
 
 Promised in time of danger, .... 138 
 
 HOLLAND. 
 
 Law and usage of, see General Average. 
 
 HYPOTHECATION. 
 
 When master may hypothecate, • . . 811, 812 
 
INDEX. 
 
 IMPLIED WARRANTIES. page 
 
 See Warranties, . . . ^. . . . 469 
 
 INSURANCE. 
 
 See Marine Insurance, 425 
 
 On expenses incurred at port of refuge, . . . 144 
 
 INSURABLE INTEREST. 
 
 What constitutes an insurable intetest, . . . 442 
 
 Interest of material men, . ... 443 
 
 borrower and lender on bottomry, . . 444 
 
 Consignee, factor or agent, . . 445 
 
 Commission merchant, .... 446 
 
 Master of vessel, .... 446 
 
 Charterers of ship, .... 446 
 
 Mortgagor and mortgagee, . . . 447 
 
 Freight paid in advance, . • • 448 
 
 INSURERS. 
 
 See Underwriters. 
 
 INTEREST. 
 
 On money advanced for general voyage purposes, . 121 
 
 INTEREST ON CAPITAL. 
 
 Loss of, by detention at port of refuge, ... 85 
 
 INTERNATIONAL GENERAL AVERAGE. 
 
 Rules recomme'nded to be adopted by the International 
 Congress held at York, England, in 1864. 
 
 Jettison of deck cargo, • .... 209 
 
 Damage by jettison and breakage, • • • 210 
 
INDEX. 
 
 INTERNATIONAL GEN'L. AVERAGE— Continued. page 
 
 Extinguishing fire on shipboard, .... 210 
 
 Cutting away wreck, 210 
 
 Voluntary stranding, 211 
 
 Carrying a press of sail, - 211 
 
 Port of refuge expenses, 211 
 
 Wages and maintenance of crew in port of refuge, 212 
 
 Damage to cargo in discharging, . . . 212 
 
 Contributory values, 212 
 
 ITALY. 
 
 Law and usage of, see General Average. 
 
 JETTISON. 
 
 See General Average, 25 
 
 LATENT DEFECTS. 
 
 Owner answerable for, 237 
 
 LIGHTERS. 
 
 Loss by exposure of goods in, when general average, 41 
 Hire of, at port of refuge to avoid landing cargo, . 132 
 
 LOG-BOOK. 
 
 Duty of master to cause minute record of all disas- 
 ters to be entered in, 870 
 
INDEX. 
 
 LOSS. 
 
 See J^artial Loss. 
 
 See Total Loss and Abandonment, 
 
 im: 
 
 MAEINE INSURANCE. page 
 
 General principles, 425 
 
 Policy of insurance and its general construction, 427 
 
 Usual clauses and requisites of the policy, . . 430 
 Rules respecting the effect of the valuation of 
 
 freight, 439 
 
 Open policies and valued policies, . . . 437 
 
 Insurance on profits, 441 
 
 Insurable interest, 442 
 
 Prior insurance, double insurance and re-insurance, 450 
 
 Representation and concealment, . . . 457 
 
 Return of premium, 461 
 
 Warranties, 465 
 
 Express warranties, .... 466 
 Warranties of ownership, . 466 
 Warranty of neutrality . . 466 
 Warranty of time of sailing, 468 
 Warranty to sail with convoy, 469 
 Particular warranties and stip- 
 ulations, .... 469 
 Implied warranties, .... 469 
 Warranty of seaworthiness, . 470 
 Deviation, .... 471 
 Species of risks usually insured against, . . 215 
 
INDEX. 
 
 MASTER. PAGE 
 
 General Powers and Duties of, .... 353 
 
 Responsible position of, and requirements necessary 
 
 to a complete discharge of his duties, . . 353 
 
 The great object which the master is bound to keep 
 in view, with respect to the cargo, is its safe and 
 speedy conveyance to its destined port, . . 354 
 
 His duties when a ship enters a port of necessity in 
 
 distress, . 354 
 
 Cases where it becomes his duty to tranship cargo, 355, 383 
 
 In cases of transhipment, the shipper is bound to 
 
 pay the extra freight, 355 
 
 Insurers on cargo discharged, if master tranship 
 
 when there is no absolute necessity, . . . 355 
 
 Cases where it becomes master's duty to sell cargo, 355, 356 
 
 Measures to be pursued by master prior to sale of 
 
 cargo, 356' 
 
 Cases where master should store cargo and wait for 
 
 instructions, 356, 357 
 
 Duties and liabilities of master and owners not va- 
 ried by stranding of ship, but continue as before, 357 
 
 Loss of goods caused by negligence, carelessness or 
 unskilfulness, is not a loss by a peril of the sea, 
 which exonerates the master and ship owner un- 
 der their bill of lading from liability, . . 358 
 
 Master should take proper steps at intermediate 
 
 port for drying and preserving cargo, . . 358 
 
 Master has no authority to sell cargo, because the 
 
 whole cargo cannot be forwarded, . . . 358 
 
 Duty of master in such a case, . . . , 359 
 
 Cost and difficulty of transhipment, as compared 
 with the probable worth of the cargo, if forwarded 
 should be taken into master's consideration in 
 electing whether to sell or tranship, . . 359 
 
 Cases in point 359, 360 
 
INDEX. 
 
 MA&TEB^Continued. 
 
 PAGE 
 
 Upon whom loss affreight is to fall, where cargo is 
 
 sold under circumstances as stated above, . 360, 364 
 
 Necessity that will justify the master in selling his 
 
 ship, 365 
 
 Whether the mere want of funds can be of itself a 
 sufficient necessity to justify a sale of the ship by 
 the master, 366 
 
 Master's authority to sell vessel or cargo is in no 
 manner increased or diminished by the owner's 
 abandonment to underwriters, .... 368 
 
 Nor by the recommendation of surveyors, . . 368 
 
 But is solely dependent upon the existence of an 
 
 honest purpose, 368 
 
 Order of court, or port wardens, or any other tribu- 
 nal for a sale, procured by the master, will not 
 make the sale legal, where the required necsssity 
 and good faith do not exist, .... 369 
 
 Master must inform his owners and wait their in- 
 structions, if he can, 369 
 
 In every case of disaster, master should cause a mi- 
 nute record to be entered in log-book, . 370 
 
 And as soon as possible after arrival at intermediate 
 port, communicate with owners, consignees and 
 underwriters, ... . . 370 
 
 His duty as to superintending repairs, . • 370 
 
 When temporary repairs, only, should be made, 371 
 
 Master should guard against imposition of consign- 
 ees in ports where he is not acquainted, 372 
 
 Instances where impositions are frequently attempt- 
 ed and how to be guarded against, . . . 872 
 
 When disbursements are paid by means of a bottomry 
 bond, how master should proceed to reduce am- 
 ount to be borrowed, ...... 874 
 
INDEX. 
 
 MASTER— Contmtied. page 
 
 Where money cannot be obtained on bottomry, mas- 
 ter may sell a portion of the cargo, . . . 874 
 
 But he cannot sell an entire cargo to raise funds, 374 
 
 Sale of cargo to raise funds should be avoided if 
 possible, because what is sold must be accounted 
 for, at the price it would have brought at port of 
 destination, 375 
 
 Duty of master, where a jettison is resorted to, . 375 
 
 Rule as to abandonment of ship to underwriters by 
 
 ship owner, 376 
 
 Duty of master when cargo liable for general aver- >' 
 
 age expenses, 377 
 
 Expense of freeing master, when arrested for his 
 
 own or his owner's debts. ... . 167 
 
 Steps that a prudent master should take before con- 
 signing his vessel at a port of refuge, . . . 161 
 
 Measure of diligence, that, for the purpose of repair- 
 ing the vessel when repairs are -necessary, the 
 master is bound to exercise, . . . 282, 283 
 
 Eflbrts to be made when unprovided with funds . 282 
 
 Cases illustrating necessity that will justity master 
 in selling his ship, 284, 290 
 
 Master not at liberty to sell without notice to, or 
 the advice of, his owners, provided he be so near 
 them that he can delay the sale without endan- 
 gering greater loss, 290 
 
 If maister sell he cannot become the purchaser Ti im . 
 self, 290 
 
 Cases where master may bottomry vessel and 
 cargo, 311, 312 
 
 Master has no right to make agreement for salvage 
 assistance to ship irrespective of cargo, . . 325 
 
 Insurable interest of master, .... 446 
 
INDKX. 
 
 MASTER— Continued. page 
 
 See "Carriage of Goods" as to master's powers and 
 duties about deliveriug cargo, and earning and 
 collecting freight, . . . . 379 
 See " Wag-es of Seamen," as to payment of seamen's 
 wages, 406 
 
 MASTS. 
 
 Cut away to righten the ship, .... 43 
 
 Cut away when in a state of wreck, ... 46 
 
 MATERIAL MEN. 
 
 Lien of on ship for repairs and supplies, . . 449 
 
 MEMOEANDUM. 
 
 Construction of the memorandum clause, . . 435 
 " Free from average unless general," liability of un- 
 derwriters under the warranty, .... 436 
 
 MEMORANDUM ARTICLES. 
 
 See Partial Loss, 253 
 
 See Total Loss and Abandonment, . . . 302 
 
 MONEY. 
 
 Raised abroad to enable master to prosecute the 
 
 voyage, 
 
 309 
 
 MORTGAGOR and MORTGAGEE. 
 
 Insurable interest 0^ 447 
 
 2sr 
 
 NEW FOR OLD. 
 
 Rule of deduction for, .... 221,222,340 
 
INDEX. 
 
 NORWAY. ^^«^ 
 
 Law and usage of, see General Average. 
 
 o 
 
 OLD MATERIALS. 
 
 Whether value of, is to be deducted in Partial Loss, 
 before or after third for new, .... 222 
 
 ONE-THIRD NEW FOR OLD. 
 
 Usual deduction of, .... 221, 222, 240 
 
 OPEN POLICY. 
 
 Construction of, 437 
 
 Insurable interest in, 441 
 
 PARTICULAR AVERAGE. 
 
 See Partial Loss. 
 
 PASSENGERS. 
 
 Expenses on at port of refuge, .... 142 
 Whether passengers' effects contribute in general 
 average, .-■•.... 179 
 
 PARTIAL LOSS. 
 
 General principles, 214 
 
 Species of risks insured against in marine policies, 216 
 
INDEX. 
 
 PARTIAL LOSS— Continued. 
 
 Perils of the sea. page 
 
 What generally included under these words, . . 216 
 Underwriters liability for damage to ship, . . 217 
 
 not liable for ordinary wear and tear, 217 
 
 Nature of loss generally determines question of un- 
 derwriter's liability, 217 
 
 Indefinite deterioration ot ship by straining &c., 
 without storm or violence, not covered by the 
 
 policy, . . 218 
 
 Underwriters liable for only what has been rendered 
 
 necessary by accident, 218 
 
 Old sores and imperfections which have no connec- 
 tion with disaster, charged to owners, . . . 218 
 Underwriters in error in supposing that all natural 
 
 decay must be restored by owners, . . . 218 
 Timbers &o., though defective, if broken by sea-pe- 
 rils, must be replaced as part of the loss, . . 218 
 Unless old defect rendered vessel unseaworthy, no 
 
 deduction to be made, 218 
 
 Perils of the sea, does not cover loss by wornis, . 218 
 
 covers loss by stranding ; unless 
 
 happening in usual course of navigation, . , 219 
 What constitutes a stranding within the policy, 219 
 
 Ship injured while being hove down, . . . 220 
 Ship blown over in graving dock, . . • 220 
 
 Liability of underwriters extends to extraordinary 
 expenses, necessarily incurred in consequence of 
 
 perils insured against, 221 
 
 Rule for deducting " one-third new for old," . 221 
 
 No deduction made from cost of anchors, . . 221 
 Rule, in practice, to deduct one-third from incident- 
 al expenses incurred in making repairs, . .221 
 Contrary decision by Justice Story, . . • 221 
 
INDEX. 
 
 PARTIAL LOSS— Continued. 
 
 Perils of the sea — Continued i'aoe 
 
 Whether value of old materials is to be deducted 
 
 before or after the third, . . . . • 222 
 
 Not settled by authority, 222 
 
 Rule in New York, New England and Pennsylva- 
 nia, also in England, Germany and France, 222, 223 
 Construction of copper clause, . • • 223, 224 
 Mode of sheathing vessels, ..... 225 
 
 Loss BY Barratry. 
 
 Defined, 226 
 
 One of the perils insured against in our common 
 
 printed forms of policy, . . . • • 226 
 What exonerates underwriters -^from loss by barratry, 227 
 Most glaring cases of barratry, .... 227 
 
 Assured cannot recover for a loss by barratry unless 
 
 the barratry produced the loss, .... 228 
 In case of a valued policy upon a ship, by which 
 underwriter is not to be liable for partial loss un- 
 less it amount to five per cent., whether percent- 
 age to be reckoned upon valuation after deduct- 
 ing premium, 228 
 
 General responsibility of Underwriters. 
 
 Insured never indemnified against his own act, . 229 
 
 Nor against loss directly caused by his own person- 
 al misconduct, 229 
 
 Whether principal liable for the defaults of his 
 agents when acting as such, .... 229 
 
 General rule that insurers not liable for loss against 
 which they insured the owner, if it be caused di- 
 rectly by the mistake, ignorance or neglect of 
 master or crew, 229 
 
 How far underwriter liable for a loss caused by a 
 
INDEX. 
 
 PARTIAL LOSS— Continued. 
 
 General responsibility of underwh iters — Continued. page 
 peril insured against, when vessel is in an unsea- 
 worthy condition owing to negligence of master 
 and crew, ...... . 229 
 
 Underwriters not bound to supply funds in a foreign 
 port for repairs. They are simply bound to pay 
 the partial loss, ... . . 230 
 
 Insurer undertakes only to indemnify against the 
 
 extraordinary and unforeseen perils of the sea, . 231 
 
 And not against the ordinary perils to which eyery 
 
 ship is exposed, ....... 231 
 
 What are ordinary, and what are extraordinary, pe- 
 rils, 231 
 
 Seaworthiness. 
 
 A condition precedent to the underwriters liability 
 
 for any loss incurred in the course of the voyage, 236, 238 
 
 Any aefect which may endanger the ship, though 
 unknown to the assured, will discharge the un- 
 derwriter, ... .... 236 
 
 Duty of the assured to keep his vessel seaworthy du- 
 ring the voyage, if it be in his power to do so, 236, 238 
 
 If the ship be disabled at sea, she remains covered 
 
 by the policy until she reach a port, . 236, 241 
 
 Underwriters liable for loss caused by neglect of 
 master to repair, unless he had reasonable cause 
 to suspect the existence of the defect when vessel 
 was in port, . . .... 237 
 
 Absence or insufficiency of ballast, renders vessel un- 
 seaworthy, and releases underwriters, . . 237 
 
 Owner answerable for latent defects, though ship 
 had Tjeen previously visited by experienced ship- 
 wrights, and the defect had escaped detection. . 237 
 
 Not sufficient to satisfy warranty, that ship had 
 
INBBS. 
 
 PARTIAL LOBS— Contimed. 
 
 Seaworthinkss — Continued. page 
 
 been pronounced seaworthy after careful exam- 
 ination, 237 
 
 Seaworthiness at beginning of risk presumed, until 
 she have proved unfit to make the stipulated 
 voyage without incurring more than ordinary 
 perils, ... .... 237 
 
 Vessel must be able to perform voyage with the 
 cargo with which she is then laden, . . . 238 
 
 Vessel under a " time policy," must be kept seawor- 
 thy during life of the policy, . 238, 2o9, 240 
 
 Burden on the assured to prove that defects were 
 produced by perils of the sea, . . 239, 240 
 
 Ship unseaworthy, if without a pilot, where she 
 should have one, 243 
 
 Deviation. 
 
 Defined, 244 
 
 From the usual course, when excusable, . . 244 
 
 In practice, a slight change, which does not increase 
 the risk, is not considered a deviation, . . 244 
 
 Master must not deviate from usual course unless 
 
 compelled to do so by necessity, . . . 244 
 
 Where there is no such usual course, master bound 
 to proceed in the most natural, direct, safe and 
 advantageous way, ..... 244, 245 
 
 Any deviation whatever discharges insurers from 
 
 all further responsibility, . ... 245 
 
 But insurers liable for loss occurring before devia- 
 tion, 245 
 
 Liability of insurers where deviation only tempo- 
 rary, .... 245 
 
 Shortness of time or distance of deviation, makes no 
 difference as to efiect on the contract, . . . 245 
 
INDEX. 
 
 PAKTIAL LOSS— Continued. 
 
 Deviation — Continued. 
 
 Cases where a temporary deviation would exonerate 
 insurers for loss during such deviation, but not 
 
 for a subsequent loss, 245, 246 
 
 No deviation, to go ou^of usual course to seek a 
 
 port to repair damages, 246 
 
 Or to avoid a peril insured against, . . . 246 
 
 Or to join convoy, 246 
 
 Or to avoid ice, 246 
 
 Or to avoid capture, ...... 246 
 
 Or to save life, or succor those who are in distress, . 246 
 But delay, or departure from the usual course, sole- 
 ly to save property, constitutes a deviation, 246, 247 
 Distinction between a deviation to save life, and a 
 
 deviation to save property, 247 
 
 Effect of taking on board more, or a different kind 
 
 of, cargo, 247 
 
 Damage by Fire. 
 
 Not a loss by perils of the sea, .... 248 
 But always specifically insured against, . . 248 
 
 And subject to same rules as partial loss, . . 248 
 
 General cLAUSE,REsrECTiNG other perils. 
 
 Covers other perils of a like kind to those specified, 249 
 Enlarges scope and operations of policy but little, 249, 250 
 Description of damage held to be covered by tjiis 
 clause, 250 
 
 PASSAGE MONEY. 
 
 Whether it contribute in general average, . . 179 
 
 PERILS OF THE SEA. 
 
 See Partial Loss, 216 
 
INDEX. 
 PILOTS. PAGK 
 
 Pilotage inward and outward, at port of refuge, . 130 
 Duty of master to take pilot, .... 421 
 
 When they may become salvors, . • • .423 
 
 POLICY OF INSURANCE. 
 
 See Marine Insurance, 425 
 
 Usual clauses and requisites of the policy, . . 430 
 Meaning of clause " lost or not lost," ■ ■ . 431 
 Clause describing the voyage insured, . . 431 
 Clause describing the commencement and termina- 
 tion of the risk, . . .... 432 
 
 Liberty to touch and stay, 434 
 
 Clause empowering the assured to sue, labor and 
 
 travel &c., 434 
 
 The memorandum, 435 
 
 PORTUGAL. 
 
 Law and usage of, see General Average. 
 
 PORT OF REFUGE. 
 
 See General Average, 86, 107 
 
 PIRATES. 
 
 Money paid as ransom to, see General Average, ■ 110 
 
 PROFITS. 
 
 On cargo, how contribute, 180 
 
 Insurance on, 441 
 
 PRIOR INSURANCE. 
 
 Construction of clause, 450 
 
 PREMIUM. 
 
 Return of; 462 
 
INDEX. 
 
 PROVISIONS. PAGE 
 Consumed by workmen from shore, when employed 
 
 in repairing general average losses, . 142 
 
 Consumed by wreckers, 143 
 
 PUMPING SHIP. 
 
 When cargo on board, I33 
 
 When cargo not on board, vessel in ballast, . 133 
 
 QUARANTINE. 
 
 Expenses of, see General Average, 109 
 
 REPRESENTATION. 
 
 As relating to a policy of insurance, . . . 460 
 
 RE-INSURANCE. 
 
 Construction of clause, 450 
 
 RISKS. 
 
 See Partial Loss. 
 
 RE-SHIPPING CARGO. 
 
 Expenses of, at port of refuge, .... 130 
 
 RESPONDENTIA. 
 
 See Bottomry, ■ .... 809 
 
 33 
 
INDEX. 
 
 SALE OF CARGO. page 
 
 By master, to pay general average or other expenses 
 
 at port of refuge, .... .82, 267 
 
 Cases where it becomes master's duty to sell cargo, 355, 356 
 Master has no authority to sell cargo, because the 
 
 whole cannot be foi-warded, 358 
 
 SALE OF SHIP. 
 
 See Total Loss and Abandonment, . . . 279 
 
 Necessity which will give master power to sell, 284, 290 
 
 SALVAGE. 
 
 Defined, 321 
 
 Amount of compensation for salvage service, rests 
 
 in the sound discretion of the court, . . . 321 
 Ingredients of a salvage service, .... 323 
 
 How estimated in fixing amount of compensation, 323,324 
 Master or owners have no right to make an agree- 
 ment for salvage as.sistance to ship, irrespective 
 
 ot the cargo, 325 
 
 How salvage assessed upon ship and cargo, . 326 
 
 Goods of the United States liable to same rate of 
 
 salvage as those of individuals, .... 326 
 And may be arrested and proceeded against in like 
 
 manner, . . 326 
 
 Where vessel fraudulently imperiled by master, 326 
 What constitutes a derelict, and rule of compensa- 
 tion, 327 
 
 Interest and compensation of co-salvors, . 329, 330 
 
 Embezzlement by salvors, 330 
 
 Fiaud committed by salvors against the master, 
 owners or underwriters, or collusion with the 
 master to defraud owners or underwriters, will 
 
INDEX. 
 
 SALVAGE— Continued. page 
 work a forfeiture of salvage, .... 331 
 Good faith and fairness required of salvors in man- 
 ner ot settling salvage, 331 
 
 Distribution of salvage, 332 
 
 Salvors admitted as witnesses, , . . 334 
 
 When pilots may become salvors, . . . 423 
 
 In case of capture, 115 
 
 Expenses of remunerating salvage services, how ad- 
 justed in general average 116 
 
 SAILS. 
 
 Loss of, by carrying a press of sail,, to keep off a lee 
 
 shore, 16, 44 
 
 Blown away, when let go to righten the ship, . 45 
 
 Cut away to save a mast, . , . 49 
 Cut up and destroyed to fit the places of other sails 
 
 previously lost, . . .... 16 
 
 Damaged in forcing a stranded ship off, . . 74 
 
 SEAMEN. 
 
 See Wages of, 406 
 
 Gratuities to, not general average, . . . '138 
 
 SEAWORTHINESS. 
 
 See Partial Loss, 235 
 
 SCUTTLING. 
 
 Damage by, 70 
 
 SHIP. " 176, 78 
 Damage to, see General Average, 55, 56, 61, 70, 71, 78, 74, 
 Damage to, see Partial Loss, . ■ 217, 220 
 Contributory value of in general average, . 168 
 Constructive total loss of, see Total Loss and Aban- 
 donment, ■ ■ ■ ■ ■ ■ 2/9 
 
INDEX. 
 
 SHEATHING page 
 
 See Partial Loss, 223, 225 
 
 SHIP'S MATERIALS. 
 
 Damage to, by using them for parposes for which 
 they were not constructed, 74 
 
 SHIP'S STORES. 
 
 Jettison of, 36 
 
 Jettison of, when in a state of wreck, . . . 37 
 
 Used in securing masts, 76 
 
 SPARS. 
 
 Cut away to save a mast, 49 
 
 SPAIN. 
 
 Law and usage of, see General Average. 
 
 SPECIE. 
 
 Liability of, to pay general average, . • . 152 
 Expense of landing, when vessel wrecked or con- 
 demned at port of refuge, ..... 152 
 Contributory value of, 189 
 
 STRANDING. 
 
 See General Average 56, 61 
 
 See Partial Loss, . . ... 219 
 
 What constitutes a stranding within the policy, . 219 
 
 SURVEYS. 
 
 Expense of, 163 
 
 SWEDEN. 
 
 Law and usage of, see General Average. 
 
INDEX. 
 
 o? 
 
 TEMPORARY REPAIRS. page 
 
 When general average, I39 
 
 When should be charged to partial loss net, . 139 
 
 THIRD NEW FOR OLD. 
 
 Rule of deduction of, ..... 221 
 
 Whether value of old materials is to be deducted 
 
 before or after the third, 222 
 
 Whether one-third to be deducted from incidental 
 
 expenses, ... .... 221 
 
 Rule of deducting one-third, does not apply to a 
 
 claim against the vessel doing damage, . 340 
 
 TOTAL LOSS and ABANDONMENT. 
 
 General doctrine, 271 
 
 After abandonment, underwriters stand in place of 
 owners, 272 
 
 Abandonment can be accepted or refused by under- 
 writers, ...... 272 
 
 lleason why abandonment generally refused by un- 
 derwriters, . 227 
 
 Merits of the case are decisive for or against under- 
 writers, . . . . . 272 
 
 Abandonment, though accepted, not binding on un- 
 derwriters if tacts prove untrue, or do not exist, 272 
 
 All rights, claims and interest belonging to assured 
 pass to underwriters by abandonment, to extent 
 ot interest covered by the policy, . . .273 
 
 Mortgagee transfers to underwriters by abandon- 
 ment, so much of the debt due to him as is paid 
 by underwriters, 273 
 
 Salvage belongs to insurers, and if encumbered by 
 charges by a peril insured against, underwriters 
 liable for them, 273 
 
INDEX., 
 
 TOTAL LOSS and ABANDONMENT— Cowh'^iMcrf. page 
 
 But underwriters not liable for charges springing 
 
 from perils not insured against, . . 273 
 
 Underwriters liable for seamen's wages earned ante- 
 cedently, but not subsec[uently to abandonment, 274 
 
 Insurers take salvage property, subject to charges 
 and expenses incurred in saving it, though they 
 exceed the value of the salvage, . . . 274 
 
 Where there is a total destruction of the thing, aban- 
 donment unnecessary, 274 
 
 No especial form of abandonment is prescribed by 
 
 law or usage, . . .... 274 
 
 Notice usually given in writing, with all the inform- 
 ation assured possesses, . . . 275 
 
 And should state substantially, grounds on which 
 
 abandonment is made, .... 275 
 
 Cause stated must be a peril within the policy, . 275 
 
 Important that notice be given in proper time, . 275 
 
 Abandonment once rightfully made is conclusive, 
 and the rights following from it are not divestod 
 by any subsequent events which may change the 
 situation of the property, .... 276 
 
 Rule same as United States, in France, Germany 
 
 and other countries except England, . . . 276 
 
 Rule in England, 276 
 
 Utility of an abandonment, 276 
 
 Definition and general rules of constructive total 
 loss, 277 
 
 Constructive Total Loss on Ship, .... 279 
 Usual proximate causes which lead to the abandon- 
 ment of a ship, 2'79j 281 
 
 Extent of injury required to justify an abandon- 
 ment, 279 
 
 Provision in New York and New England, . 279 
 
INDEX 
 
 TOTAL LOSS and ABAm)O^ME^T— Continued. page 
 
 In England, assured can abandon, only when cost 
 
 of repairs exceeds the lull repaired value, . 279 
 
 Expenses of repairs to be estimated at place where 
 
 made, .... .280 
 
 Or where they would have been made if made at all, 280 
 If ship can be partly repaired at port of distress, 
 and then taken to a port where she can be wholly 
 repaired at less expense, master's duty to do so, 280 
 And underwriter liable only for the less expense, 280 
 
 Cost of navigating from port to port to be added, 280 
 
 Abandoument changes the character of the master, 281 
 Measure of diligence, that, for the purpose of repair- 
 ing the vessel, when repairs are necessary, the 
 master is bound to exercise, . . 282, 283 
 
 When unprovided with funds, efforts that master 
 ought to make, ..... 282 
 
 Means he i-s bound to employ to supply that want, 282 
 Abandonment unauthorised, except when at the 
 time the loss was actually total, or in the high- 
 est degree probable, .... 283 
 
 Cases illustrating this principle, . . 283, 2b'4 
 
 Cases showing necessity required to justify master 
 in selling his ship, and to a case of constructive 
 total loss, . . . 284—290 
 
 Master not at liberty to sell without notice to, or 
 the advice of, the owners, provided he be so near 
 them that he can delay the sale without endan- 
 gering a greater loss, .... 290 
 
 If master sell, he cannot become the purchaser 
 himself, ...... 290 
 
 If surveyor or any person authorising or officially 
 promoting the sale, should buy, it would be a 
 suspicious circumstance, .... 290 
 
 Though not perhaps sufficient of itself, to avoid the 
 sale, .290 
 
INDEX. 
 
 TOTAL LOSS and ABANDONMENT— Corafrnwed page 
 
 General rule that a vendor cannot become a vendee, 290 
 
 Cases where a sale for want of fiinds will be justifi- 
 able, . . . . . .291 
 
 Cases where it will not, . . . 291 
 
 Whether, in the case of an old and decayed ship, 
 such repairs as the decayed state of the ship may 
 have rendered necessary, are to be deducted from 
 the estimate of the cost of repairs, . 292, 293, 29-i 
 
 General average cannot be added to partial loss, to 
 
 make a constructive total loss, . ,. 295 
 
 Expenses incurred to ascertain extent of loss, are 
 
 not to be added, .... 296 
 
 Wages and provisions of officers and crew, while 
 ship is undergoing repairs, are not to be in- 
 cluded, 296 
 
 But a reasonable allowance for custody of vessel, if 
 necessary during repairs, and for superintendence, 
 may be charged to account of labor, . 296 
 
 Not linough to prevent assured from abandoning, 
 that vessel could be rendered seaworthy at an ex- 
 pense less than fifty per cent., . . 296 
 
 If at time of abandonment, master have commenced 
 
 to repair, abandonment invalid, . . 296 
 
 And assured can recover for expense incurred only, 
 although it exceed half the value of the vessel, 298 
 
 State of facts existing at the time of abandonment, 
 
 determines the right of the assured to abandon, 296 
 
 In a case less than total, if master have bottomried 
 ship to raise funds for repairs, underwriters have 
 nothing to do with the bottomry bond, . 297 
 
 But are simply bound to pay the partial loss, includ- 
 ing their proportionate share of the extra expense 
 of obtaining the money in that mode, . 297 
 
 Whether underwriter has the right to offer to re- 
 
INDEX. 
 
 TOTAL LOSS and ABANDONMENT— Cowi!wM«Z, page 
 
 pair, and escape liability for more than actual 
 
 cost, . . . . .298 
 
 Constructive Total loss of Cargo, . 300 
 
 Definition and cases constituting a total loss, 300, 301 
 
 Where the loss as being partial or i otal depends on 
 the amount of damage merely, the rule is the 
 same in respect to cargo, as in a policy on the 
 ship, .... .... 301 
 
 Where constructive total loss is sought to be main- 
 tained, upon the mere ground of deterioration of 
 cargo, at intermediate port, all deterioration of 
 memorandum articles must be excluded, . . 301 
 
 There can be no constructive total loss by damage 
 to goods insured " free from average," . . 302 
 
 Terms used in policy, " Total Loss " " Free from Av- 
 erage," " Free from Particular Average," " Not li- 
 able for Partial Loss" and " Partial Loss except- 
 ed," mean one and same thing, .... 802 
 
 After goods arrive at the port of destination there 
 can be no abandonment for constructive total 
 loss, 303 
 
 "Against Total Loss," or " Free from Average," ex- 
 cludes a constructive total loss on account of da- 
 mage, so long as the article remains in specie and 
 can be forwarded to destination, . . . 303 
 
 Object of introducing above clauses into the policy, 304 
 
 Constructive Total Loss on Freight, . . . 304 
 
 Definition, and cases constituting a total loss of 
 
 freight, . . ... 304,305,306 
 
 If ship be insured in one place and freight in ano- 
 ther, and ship be abandoned, insurers on ship 
 will take whatever subsequent freight ship may 
 earn, ^^'^ 
 
TOTAL LOSS and ABANDONMENT— CowiiTOci. page 
 
 But insurers on freight will take the freight previ- 
 ously earned, .... . . 307 
 
 , Expenses of earning freight, to be borne pro rata by 
 underwriters on ship and freight, after abandon- 
 ment, 308 
 
 TJ 
 
 UNDERWRITERS. 
 
 Liability of, as to general average, .... 192 
 
 Liability of, to pay general average according to 
 
 foreign adjustment, ... . . 197 
 
 Insured never indemnified against his own act, 229 
 
 Nor against loss directly caused by his own personal 
 
 misconduct, 229 
 
 Whether principal liable for defaults of his agent, 229 
 
 General rule, that underwriters not liable for loss 
 against which they insured the ovvner, if it be 
 caused directly, by the mistake, ignorance or neg- 
 lect, of the master or crew, . . . 229 
 
 How far underwriters liable for a loss caused by a 
 peril insured against, when vessel is in an unsea- 
 worthy condition, owing to negligence of master 
 and crew, 229 
 
 Underwriters undertake to indemnify only against 
 the extraordinary and unforeseen perils of the sea, 231 
 
 And not against the ordinary perils to which every ^ 
 
 ship is exposed, - . 231 
 
 Underwriters not bound to supply funds in a foreign 
 port for repairs, 280 
 
 What are ordinary and what extraordinary perils, 231 
 
INDEX. 
 
 TJKDERWRIT'EUS— Continued. pagr 
 
 Liability of, for partial loss of goods, . 254, 267, 268 
 Liability of, when cargo forwarded, . -- . . 268 
 
 Not liable lor loss caused by inherent defects, . 268 
 
 Cases where abanJonmeat binding, see Partial Loss. 
 Whether underwriter has the right ; o offer to repair 
 
 and escape liability for more than actual cost, . 298 
 Liability of, for loss by collision, . 338, 341, 346, i350 
 
 UNLESS GENERAL. 
 
 Construction of the clause, 436 
 
 USAGE. 
 
 As applied to construction of the policy, . . 427 
 
 •V" 
 
 VALUATION. 
 
 See Marine Insurance, 438 
 
 VALUED POLICY. 
 
 See Marine Insurance, 438 
 
 VOLUNTARY STRANDING. 
 
 See General Average, ■ • • • • 56, 61 
 
 WAGES. 
 
 Of men employed to pump when cargo on board, . 132 
 Extra, to men to suppl-y place of deserters at port of 
 refuge, 1^^ 
 
INDEX. 
 
 WAGES AND PROVISIONS. page 
 
 When allowed in general average, . . 133, 136 
 
 WAGES OF SI'^AMEN. 
 
 In case of shipwreck, 406 
 
 Where vessel is wrecked on her outward voyage, 411 
 
 Where vessel is wrecked on her homeward voyage, 411 
 Where vessel is wrecked between intermediate ports, 412 
 Where part of the freight has been earned, though 
 
 the vessel be wrecked, 412 
 
 Where a part of the cargo is saved, . . . 413 
 
 Where freight is not earned in consequence of the 
 
 acts of the owner or master, ... 414 
 
 Where a vessel is sent out upon a seeking voyage in 
 
 search of freight, and obtains none, . . . 414 
 Where the voyage is broken up after it has been 
 commenced, at any intermediate port, by the vol- 
 untary act of the master or owner, . . . 414 
 Wages, how affected by the capture of the ship, 415 
 
 How affected by the sickness of the seamen during 
 
 the voyage, 416 
 
 How affected by death during the voyage, . . 417 
 How affected when a seaman is wrongfully dis- 
 charged, . . 418 
 
 How affected when seamen are discharged abroad 
 
 with their own consent, or the ship is sold, . 419 
 
 WATER CASKS ON DECK. 
 
 Jettison of, 36 
 
 WAREHOUSE. 
 
 Rent of, on cargo at port of refuge, . . . 130 
 
 WARRANTIES. 465 
 
 Express Warranties, 466 
 
 Warranty of ownership, .... 466 
 
INDEX. 
 
 W kURA:NTmS— Continued, ^ . page 
 
 Warranty of neutrality, . , . 467 
 
 Warranty of time of sailing, . . . 463 
 
 Warranty to sail with convoy, : . 469 
 
 Particular warranties and stipulations, . 469 
 
 Implied Warranties, 469 
 
 Warranty of seaworthiness, . . . 470 
 
 Deviation, 471 
 
 WORMS. 
 
 Loss by, not peril of the sea, 218 
 
 Damage by, at port of refuge, .... 71 
 

 Date Due 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 1 
 
 
 
 Library Buretu Cit. No. 1 1 37 
 
KF 1108 d62 F7 
 
 Author 
 
 Vol. 
 
 Dixon, Francis B. 
 
 Titl( 
 
 A practical treatise on the copy 
 adjustment of general average . . . 
 
 Date 
 
 Borrower's Name 
 
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 fi 
 
 
 
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