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 ADJUSTMENTS OF LOSSES 
 
 IN MARINE INSURANCE 
 
 STEVENS AND BENECKE. 
 
 mm Notes 
 
 By WILLARD PHILLIPS. 
 
 BOSTON: 
 
 LILLY, WAIT, COLMAN, AND HOLDEN, 
 1833.
 
 T 
 .Phi 3 a 
 
 Entered, according to Act of Congress, in the year 1833, 
 
 By Lilly, Wait, Colman, & Holden, 
 
 In the Clerk's Office of the District Court of Massachusetts.
 
 INTRODUCTION 
 
 TO THE PRESENT EDITION OF BENECKE AND STEVENS 
 ON AVERAGE. 
 
 The very able and useful work of Mr Stevens on 
 Average has long been in the hands of American 
 lawyers and merchants, and its reputation is well 
 established in this country. It is now out of print, 
 and a new edition seems to be called for. Mr 
 Benecke's work on the same subject has not hither- 
 to been published in the United States, though a 
 very considerable number of copies of the English 
 edition of 1824 has been distributed, and the work 
 is frequently quoted in the courts and referred to by 
 underwriters and despacheurs, and it seems to be an 
 object of some importance to place the Treatise with- 
 in the reach of the public. It seemed however to 
 be a matter of doubt whether the demand for trea- 
 tises of this description would justify the publica- 
 tion of a separate edition of each work. Then 
 again, it was material that an American edition of 
 either work should contain notes of the American 
 decisions and practice, and the separate publication 
 of the two would occasion a repetition of this ad- 
 ditional matter, thus enhancing the expense to the 
 purchasers of both, and at the same time rendering 
 it less convenient to refer to them, since on any- 
 subject it would be necessary to consult both. 

 
 : iv *nvn:Ro.lj.ucTioN. 
 
 . Upm^ . .these . cojn^id.cratiQns '•. th'c question occurred, 
 .■H^•.^cxHc^^^l:pl^)lic\l^i<?h'•Aljgh not be made of the two 
 works combined, embracing all that is practically es- 
 sential in both, so as to render them at the same time 
 less expensive to purchase, and more convenient to 
 use. On examining the two works it appeared that 
 though the order of subjects was not precisely the 
 same, yet the divisions were similar, so that by 
 merely combining two chapters of Mr Benecke in 
 one, and dividing another into two, a set of chap- 
 ters in each would be presented, treating of pre- 
 cisely the same subjects ; and by some few trans- 
 positions that did not seem to injure the symmetry 
 or destroy the unity or connection, or sequence of sub- 
 jects in either treatise, the chapters relating to Av- 
 erages might be arranged on the same plan in both. 
 To reduce the two to the same order, it was only 
 necessary to transpose the chapter of one or the 
 other work on Valuation, and the arrangement of 
 Mr Benecke in this respect seemed to the editor 
 preferable, to which he was perhaps biased by the 
 circumstance of his having adopted a similar one in 
 his Treatise on Insurance. However this may be, 
 he is confident that Mr Stevens's work will not be 
 materially injured by this transposition. 
 
 The plan of the present edition then is to take 
 from both treatises all that relates strictly to Aver- 
 ages, and arrange the chapters in a corresponding 
 order so that the chapters of both on the same sub- 
 ject may come together, and to add notes of the
 
 INTRODUCTION. V 
 
 English cases subsequent to the dates of the editions 
 of the two works used, that of Mr Stevens being 
 the one of 1822, and that of Mr Benecke, the only 
 English edition known to the editor to have been 
 published, namely, that of 1824; and also notes of 
 the American cases and practice, introduced indif- 
 ferently under the chapters of one or the other 
 original author ; to give a table of contents, and list 
 of cases and authorities in the text and notes, and a 
 full alphabetical index of the subject-matters of the 
 two works combined. 
 
 In making the notes of American cases and prac- 
 tice the subjects of practical importance to the des- 
 pacheur of averages are treated more fully, and some 
 questions of doubt or difficulty are discussed at 
 some length, but the cases are in general cited very 
 concisely, reference being usually made, at the same 
 time, to the places in the editor's Treatise on In- 
 surance, in which the same subjects occur, or the 
 same cases are stated. Mr Justice Story's notes to 
 Abbott on Shipping, edition of 1829, relating to 
 the subject of average, are also frequently referred 
 to. The object of the references to the two last 
 named works, in the notes to the present edition, is 
 not merely for the purpose of adducing authorities in 
 the legal sense, but often rather as a mere sug- 
 gestion of the places where the same subjects are 
 treated, or the same cases stated, so that the present 
 edition may serve in some degree as an index to
 
 vi INTRODUCTION. 
 
 tliose two works as far as they relate to aver- 
 ages. 
 
 The text of neither of the Treatises embraced in 
 this volume, has been altered in any respect, ex- 
 cepting the occasional omission of a reference by 
 either, more particularly by Mr Benecke, to parts of 
 his work not embraced in the plan of the present 
 volume. The notes of the authors are distinguished 
 by the numeral references, ' 1,' '2,' &c, — those of 
 the editor by the letters ' «,' ' 6,' &c. 
 
 The three first chapters of Mr Benecke's Trea- 
 tise are omitted, as being more of a speculative than 
 a practical character. It is proposed to give only 
 a very general outline of the contents of these chap- 
 ters. The author says there are two descriptions of 
 insurance upon goods, by one of which the insurer 
 agrees, in case of loss, to place the assured in the 
 same situation he was in at the commencement of 
 the risk, by the other, in the same situation he w ould 
 have been in had the goods arrived safe at the place 
 of destination. The former is the mode of in- 
 demnity adopted in practice, but the latter is legal, 
 and might be introduced to advantage. An exami- 
 nation and comparison of these two modes will, he 
 thinks, throw light upon each, and also upon the 
 subject of indemnity in insurance generally. 
 
 A policy in which the value is based upon the net 
 proceeds at the port of destination, is not an in- 
 surance on the state of the markets, though the 
 value is determined by the market rate. This value
 
 INTRODUCTION. vii 
 
 will consist of three parts, 1st, the invoice value, 
 2d, the freight and charges payable at the port of 
 destination, 3rd, the net profits. ' This method,' 
 says the author, ' answers exactly the true end of 
 marine insurance, which, strictly speaking, is to re- 
 lieve the merchant from the consequences of a loss 
 by sea, and not to annul a speculation once entered 
 into. Every well informed merchant, guided in his 
 undertakings by sound reflection, may be supposed, 
 in general, to wish, that such events as prevent his 
 speculations from being realized, might not take 
 place, and it is much more to his advantage that the 
 underwriter should gain the premium, than that his 
 speculation should be frustrated, and the prime cost 
 restored to him. Hence it necessarily follows that 
 a method by which the assured, after a loss at sea, 
 is placed in the same situation in which he would 
 have been if his goods had arrived safe at the place 
 of their destination, is much more conformable to 
 the nature of mercantile transactions, than that 
 which places him in the condition in which he was 
 before he undertook the adventure.' 
 
 He then considers some objections to this mode 
 of insurance, and enters into some details of the 
 practical adjustment of losses ; and compares the 
 proposed method with the one now in use. He 
 points out instances, in which the assured in fact 
 sustains an actual loss, notwithstanding his being 
 insured to the full value of his cargo, particularly the 
 loss by payment of full freight on damaged goods, 
 against which the underwriter does not indemnify
 
 viii INTRODUCTION. 
 
 him by the present mode of insurance, nor would he 
 be indemnified against this loss by a policy based on 
 the value at the port of destination as proposed by 
 Mr Beneckc. He accordingly proposes that this risk 
 shall be made the subject of a distinct indemnity ; 
 and he deems it advisable to insure the three dis- 
 tinct interests separately in the same policy, viz., 
 1st, the invoice value, 2d, freight and charges payable 
 at the port of destination, 3rd, freight. He proposes 
 that the insurance shall be made in an open policy, 
 which would, of course, render it necessary, in ad- 
 justing a loss or computing a return premium, to 
 ascertain the market value at the port of destina- 
 tion ; and this he acknowledges to be one objection 
 to his proposed mode in case of the vessel's not 
 arriving at that port, and in case of its being a dis- 
 tant one. He thinks that the present mode of in- 
 suring profit by a valuation, is not conformable to 
 the principles of insurance ; as it is not based upon 
 the principle of indemnity. 
 
 Such in general are Mr Benecke's views as to the 
 principles of indemnity in insurance on goods, and 
 he gives particular details of the modes of adjust- 
 ment upon the proposed plan. 
 
 In his second chapter he considers the principles 
 of indemnity, as to insurance on the ship, the body 
 of which, and her furniture, he says, ' ought to be 
 insured, not for the value which she has at the begin- 
 ning of the voyage, but for that value which she will
 
 INTRODUCTION. ix 
 
 have after the safe arrival at the place of her des- 
 tination ;' for this is what the owner will lose in 
 case of her total loss. He then examines the two 
 modes of insuring the ship without her outfits, and 
 the gross freight, and the ship with her outfits, and 
 the net freight, and goes into a computation to show 
 that neither mode will give an indemnity, and finally 
 proposes, as the best mode, ' to insure ship and 
 freight jointly as one indivisible risk, in the same 
 policy,' upon the ground that as the value of the ship 
 and outfits is diminished by w^ear and tear, and con- 
 sumption of provisions, that of freight will accumu- 
 late. And he goes into a particular discussion to 
 show the practical operation and advantages of this 
 mode of insuring. 
 
 His third chapter is an essay upon bottomry and 
 respondentia contracts, and the insurance of money 
 raised abroad for the benefit of ship, cargo, and 
 freight. He distinguishes bottomry into two kinds ; 
 
 1. for money loaned to repair the ship, or restore 
 the value of the subject on which the loan is made ; 
 
 2. for money loaned to buy a ship or goods, the 
 thing purchased being pledged to secure repayment 
 of the money advanced. The first kind resembles 
 a mere loan for payment of expenses of repairs or 
 other expenses abroad. One question in bottomry 
 relates to the kind of losses which shall be at the 
 risk of the lender, and another to his title to salvage. 
 Of these Mr Benecke treats very fully. He points 
 out, with good reason, the great obscurity in the
 
 X INTRODUCTION. 
 
 English law on the subject of bottomry. There is 
 a great diversity in tlie foreign ordinances on the 
 same subject. 
 
 In regard to money raised abroad by the master 
 for repairs or defraying expenses, Mr Benecke thinks 
 there is less objection to the terms that the lender 
 on bottomry shall not be liable for either general or 
 particular average, and shall be entitled to salvage, 
 since it will be easier for the master to raise funds 
 on these terms, than on the condition of the lender's 
 taking the risk of averages, and he may raise the 
 funds on a proportionably lower marine interest. 
 But in regard to loans on bottomry and respondentia 
 at home, and for the purpose of augmenting the capi- 
 tal at risk, that is for the purchase of a ship or cargo, 
 he proposes that the lender should in fact be an un- 
 derwriter on the amount loaned, to all intents and 
 purposes ; taking precisely the same risks and being 
 entitled to the same advantages and conditions as to 
 salvage and otherwise, as an underwriter according 
 to the usual form of policies. This form of bottomry 
 is the one now in use in some ports. It is the only 
 form of bottomry or respondentia, which is clear in 
 its terms, and free from embarrassment in making 
 adjustments. All MrBenecke's reasoning is in fact 
 equally applicable in favour of the adoption of this 
 form, whether the occasion be to raise money for 
 repairs, or discharge liens, defray expenses, or to 
 purchase the thing hypothecated. The great reason 
 for this form of stipulation is, that the marine inter-
 
 INTRODUCTION. xi 
 
 est is a subject of exact computation, since the rate 
 of insurance is always well known, and that added 
 to the common rate of interest, will make the proper 
 rate of marine interest, where the lender takes the 
 risks ordinarily assumed by underwriters, whereas if 
 the lender does not take the same risks as an under- 
 writer in the common form of policy, the proper 
 marine interest on the bottomry-loan is not so obvi- 
 ous, and the chance is that the borrower will be 
 obliged to pay a proportionably higher rate of marine 
 interest. But the master is often under the neces- 
 sity of taking the loan upon other terms, in foreign 
 ports. 
 
 These three chapters of Mr Benecke are profess- 
 edly of a theoretical character requiring a profound 
 attention, and also a wide acquaintance with the 
 subject of insurance on the part of the reader, in 
 order to understand them, and being adapted more 
 for readers who make insurance a scientific study, 
 than for such as content themselves with a know- 
 ledge of the mere practical application of the received 
 doctrines. The present is not an occasion for the 
 discussion of the expediency or practicability of the 
 changes proposed by Mr Benecke in the princi- 
 ples or practice of insurance, a discussion which 
 would require much space and much reflection. I 
 apprehend, however, that a just result of an investi- 
 gation of the subject would be, at the most, an in- 
 troduction of some few additional stipulations into
 
 xii INTIIODUCTION. 
 
 policies, to meet particular defects, but by no means 
 any attempt at a revolution in the system of insur- 
 ance. I have no doubt that the abstruseness, theo- 
 retical character, and freedom of speculation in these 
 chapters, have had the effect of preventing the 
 practical part of Mr Benecke's treatise from being as 
 often consulted and as generally knov^ai, as it de- 
 serves to be. The work is very full, in some parts 
 more so than that of Mr Stevens, and is at the same 
 time scientifically just, and practically accurate. 
 
 Two other omissions have been made in Mr Be- 
 necke's work, namely his chapter on total losses, 
 and his algebraical illustrations, the former as being 
 of less practical importance, and because the subject 
 is fully treated in works on insurance ; the latter, 
 because few of those into whose hands the work 
 will come, have much knowledge of algebra, and 
 also because the arithmetical illustrations are just as 
 satisfactory. The only other alteration made in Mr 
 Benecke's work is the omission of references to the 
 parts omitted, and a transposition of a few pages of 
 the chapter on Total Loss to that on the Memoran- 
 dum, in the place where they are referred to by the 
 author in this latter chapter ; and the putting to- 
 gether his fifth and six chapters into one, and the 
 division of his ninth chapter into two, to make the 
 distribution of the subject correspond to that of 
 Mr Stevens. In all other respects Mr Benecke's 
 treatise stands as I find it.
 
 INTRODUCTION. xiii 
 
 The parts of Mr Stevens's treatise omitted in this 
 edition, are his Essay on Arbitration, and the chap- 
 ter on Return of Premium, and some part of the 
 Appendix. The remarks on Arbitrations are omit- 
 ted as not belonging particularly to the subject. 
 His chapter on Return of Premium is useful, but 
 not of essential practical importance in a work of 
 this description. 
 
 A new table of contents is given embracing both 
 treatises, and that of Mr Stevens is very much 
 enlarged, the subjects being more particularly speci- 
 fied. A list is given of the authorities and cases 
 cited by both Mr Stevens and Mr Benecke. Mr 
 Stevens had not given any list of cases or authors 
 cited by him ; Mr Benecke had given a list of cases, 
 but not of authors. 
 
 WILLARD PHILLIPS. 
 
 Boston, July 4th, 1833.
 
 An Essay on Average. The fourth Edition, with 
 Corrections and Additions. By Robert Stevens, 
 of Lloyd's. London: 1822. 
 
 ' All questions on Mercantile Transactions, but more particularly on Policies of 
 Insurance, are extremely important and ought to be settled.' 
 
 Lord Mansfield. 
 
 PREFACE TO THE FIRST EDITION. 
 
 The subjects discussed in the following Essay 
 have of late years engaged much of the attention of 
 those persons whose chief business lies in Lloyd's ; 
 and for this reason hopes were entertained by the 
 writer, that some one among them, who might be 
 pointed out as competent to the undertaking, would 
 have given to the commercial world the result of 
 his experience ; and thus have been the means of 
 putting to rest at least some of the important ques- 
 tions, which for want of authority to refer to still re- 
 main unsettled or open to discussion. 
 
 It is now above thirty years since any thing writ- 
 ten expressly on the practice of insurance has ap- 
 peared. (1) If such publications were more fre- 
 quent, we should probably not be in the state of 
 uncertainty on many points which we now are ; for 
 
 (1) Weskett's Digest, Sfc, 1781.
 
 PREFACE. XV 
 
 it is by the comparison of opinions and ideas, that 
 correct principles are ascertained. 
 
 In the absence of any practical work of late date, 
 the writer has thought proper to go before the pub- 
 lic ; and it may not perhaps be deemed irrelevant 
 to state, that this Essay was originally intended as 
 part of a ' Treatise on the Practice of Insurance,' 
 Sic, for which he has been many years collecting 
 materials. To that work the writer has devoted 
 much of his attention, with the hope of making it 
 worthy the public eye ; but he has hitherto, from 
 various causes, not the least of which is the unset- 
 led state of the practice, been prevented from com- 
 pleting it. 
 
 It will be perceived that the subjects treated of in 
 this Essay are chiefly those mentioned by the Pro- 
 visional Committee of Lloyd's, in page 23 of 
 their Report of the I9th July, 1811. 
 
 Much has been said in favour of establishing a 
 code of insurance laws, similar to those promulgated 
 in foreign countries ; but it is apprehended that few 
 persons of experience in Lloyd's will, on considera- 
 tion, be disposed to recommend such a measure. It 
 would perhaps be extremely difficult, if not wholly 
 impracticable, to make positive laws to suit every 
 case ; and it is doubtful vrhether, if such were 
 made, they would be found to answer the purpose
 
 Xvi PREFACE. 
 
 of preventing litigation. (1) The object, it is con- 
 ceived, would be more readilj, and better attained 
 by the mode above pointed out: — that of men of 
 experience communicating their knowledge to the 
 world. An attempt was indeed made in the year 
 1747, to procure an act of parliament ' for the better 
 regulating of Assurances on ships, and on goods 
 laden thereon, and for preventing frauds therein,' 
 &c. (2) Leave was given, and a committee was 
 appointed to prepare and bring in the bill ; but it is 
 almost unnecessary to observe, that it did not pass 
 into a law. 
 
 The practice of insurance (as relative to the ad- 
 justment of claims arising out of the contract,) which 
 might from its intricacy be almost denominated a 
 science, is still but imperfectly understood ; and, 
 like every thing dependent on custom and prece- 
 dent, its improvement will be but gradual, until re- 
 peated examination and discussion shall have fixed 
 it on solid principles, and have secured to them that 
 universal suffrage which would probably never be 
 yielded to the result of the deliberations of any par- 
 ticular body of men. 
 
 The great and only end of insurance, as known 
 to, and quoted by every one, is indemnity ; and the 
 
 (1) Marshall on Insurance, prel. disc. p. 21. 
 
 (2) Vide Journals of the Ho. of Com. v. 24, p. 597, and lit 
 infra, Appendix iii.
 
 PREFACE. XVll 
 
 great difficulty in the practice is, in so accurately ad- 
 justing the claim of the merchant on the underwriter, 
 that each party may be satisfied ; — this, however, 
 will never be, till the principles and the practice of 
 insurance are more- perfectly, and are equally well 
 understood by both. It is indeed necessary always 
 to bear in mind, that the general importance and 
 even the particular utility of insurance, can never 
 be so well maintained, as by preserving the purity 
 of the principles on which it is founded : — in this, 
 the assured and the insurer are equally interested. 
 
 If the writer should be so fortunate as to place 
 some of the subjects of which he treats in a clearer 
 point of view than that in which they have been 
 generally seen, his object will be attained. He has 
 not the vanity to imagine himself capable of com- 
 municating any thing new to those who are well 
 initiated in the principles and the practice of in- 
 surance ; to such, a work of this nature must be 
 useless ; but he has at times had occasion to remark, 
 that the commercial community in general possess 
 much less information on this subject than is requir- 
 ed from its importance to their interests. 
 
 New City Chambers, 7th August, 1813.
 
 EXTRACT FROM THE PREFACE TO THE FOURTH 
 EDITION. 
 
 The preceding editions having been for some 
 time out of print, the author has thought proper to 
 publish a new edition, in which he has endeavoured 
 to bring down the practice and the law of Average 
 to the present day. 
 
 June, 1822.
 
 A Treatise on the Principles of Indemnity, in Ma- 
 rine Insurance, Bottomry and Respondentia, 
 and on their practical application in effecting those 
 contracts, and in the adjustment of all claims aris- 
 ing out of them. For the use of Underivriters, 
 Merchants, and Lawyers. By William Benecke, 
 of Lloyd's. London: 1824. 
 
 « nihil est profecto prajstabilius, quam plane iutelligi, nos ad 
 
 justitiam esse natos, neime opinione, sed natura constilutum esse jus.' 
 
 Cic. DE Leg. 
 
 preface. 
 
 In composing the work, which I now present to 
 the Public, it has been my design to develop from 
 the nature of the subject the true principles of In- 
 demnity in Marine Insurance, Bottomry and Res- 
 pondentia ; to compare with them the existing laws 
 and usages ; and to deduce from these combined 
 sources clear and efficacious rules for effecting those 
 contracts agreeably to the true interests of the par- 
 ties, and for adjusting all claims arising out of the 
 same. 
 
 An accurate investigation of the nature of the 
 transactions which give origin to those contracts is
 
 XX PREFACE. 
 
 indispensably necessary for establishing, in general, 
 the principles upon which they are or ought to be 
 founded, and more particularly those of Indemnity 
 in a stricter sense ; or for ascertaining, against 
 which losses the assured (and the lender on bottom- 
 ry, &c,) ought to be protected in the event of any 
 of the accidents insured against, and for determining 
 under all circumstances the equivalent for the loss 
 sustained. This has been practically recognized by 
 judges of the first eminence. The leading decisions 
 of our courts of law upon questions of this descrip- 
 tion, have acquired that distinction precisely because 
 they were grounded in a close inquiry into the nature 
 of the transactions upon which these contracts rest. 
 
 But, it cannot be expected that the cases which 
 have fallen under the cognizance of our courts, at 
 different times and before different judges, upon 
 questions of indemnity, should all have been decided 
 with the same skill and profundity of judgment, so 
 as to be perfectly consonant with each other. A 
 great many points appertaining to the doctrine of 
 indemnity have besides never become the subjects of 
 legal discussion. A knowledge, therefore, of the 
 decided cases alone cannot be sufficient to remove 
 all doubts and uncertainty, or to establish a perfect 
 system of this important branch of the law ; and 
 thus a farther inquiry into the principles arising out 
 of the nature of the subject will, it is hoped, be 
 acceptable to the members of the profession.
 
 PREFACE. XXI 
 
 That the same kind of investigation is highly 
 necessary to the Merchant, the Ship-owner and the 
 Underwriter, will hardly require demonstration. 
 Mercantile transactions, and the relations resulting 
 from them, are frequently so complicated, that great 
 knowledge and circumspection are requisite to adapt 
 the contracts, which are intended to facilitate and 
 secure them, to the real interests and intention of 
 the parties ; and -it may safely be asserted, that ex- 
 perience alone, even the most extended, cannot 
 under all circumstances be sufficient for that pur- 
 pose. Indeed, it occurs but too often, that, for want 
 of a due investigation of the nature of the case, and 
 of adequate stipulations in the contracts, the real 
 intentions of the parties are entirely frustrated. 
 Nay, the very form of our common insurance poli- 
 cies, and bottomry bonds, which still remain unal- 
 tered notwithstanding their acknowledged insuffi- 
 ciency, especially with regard to the memorandum 
 in the former, proves without contradiction, that 
 much remains to be done in this respect. 
 
 The man of business, moreover, requires a com- 
 petent knowledge of the laws of his own country, as 
 well as of those of other states to which he may oc- 
 casionally be obliged to conform. It must be grate- 
 fully acknowledged that much assistance has been 
 rendered to him in this regard by the valuable works 
 which have been published upon the law of insur- 
 ance. But, it will be admitted, on the other hand, 
 that it is not always possible to those ^vho are ac-
 
 xxii PREFACE. 
 
 customed to consider those subjects principally in a 
 legal point of view, to adapt their endeavours to the 
 immediate wants of the man of business ; and I hope 
 that what I have endeavoured to do in this respect 
 will not be found superfluous. 
 
 The plan of the work having been fully exhibited 
 in the table of Contents ; it remains only to add a 
 few remarks, and to direct the reader's attention to 
 some of the more important topics treated of in the 
 course of the work. 
 
 The two principal subjects of insurance, are goods, 
 and ship and freight. The interests of the merchant 
 are so different from those of the ship-owner, that 
 their respective property may sometimes be very 
 differently affected by the same accidents of the 
 navigation ; for which reason it was necessary to in- 
 vestigate separately the principles of indemnity in 
 the insurance of each of these kinds of property. 
 What has been advanced upon the two modes of 
 considering insurances upon goods, is indispensably 
 necessary, in order to appreciate the mode at present 
 in practice, and the suggestions I have proposed for 
 obviating its inconveniences ; and I hope that the 
 trouble of reading the few pages, in which the first 
 mode has been explained, will not be regretted even 
 by those who consider this mode less capable of 
 practical application than in my opinion it may be 
 under particular circumstances. The same remark 
 aj)plies to the different modes of insuring ship and
 
 PREFACE. XXIU 
 
 freight, exhibited in the second chapter. The con- 
 sideration of the relation subsisting between ship 
 and freight leads to their proper valuation, and to 
 the solution of the difficult and interesting question, 
 whether the freight ought to follow the abandon- 
 ment of the ship ? 
 
 The third chapter contains an entirely new theory 
 of bottomry and respondentia, and of the insurance 
 of money raised abroad for the purposes of the 
 voyage ; and I flatter myself that I have elucidated 
 this obscure and important subject so as to remove 
 all doubts and difficulties. With this chapter the 
 sixth is intimately connected, in which the different 
 ways of raising money abroad, and the mutual rela- 
 tions and obligations of the parties, arising from 
 those transactions, are fully considered. 
 
 In the chapter on Average, I have endeavoured to 
 explain the cause of the diversities observed in the 
 laws and customs respecting general average, and to 
 elucidate many difficult points which stood particu- 
 larly in need of being explained. — What has been 
 said in the seventh chapter, of the estimate of sacri- 
 ficed articles according to the different circumstances 
 of the voyage ; of the different sums for which the 
 same thing may have to contribute on account of 
 articles sacrificed, and for disbursements ; of the 
 contribution of freight under different circumstances, 
 and of foreign adjustments of general average — all
 
 Xxiv PREFACE 
 
 this \\ill, 1 liopc, be found interesting and of practi- 
 cal utility. 
 
 With respect to Abandonment, I beg leave to call 
 the attention of the reader to what has been advanc- 
 ed upon the expediency and practicability of restrict- 
 ing the right of abandonment ; to the investigation 
 of the question, what is a total loss upon goods ex- 
 empt from particular average ; and to that respect- 
 ing the freight following the abandonment of the 
 ship. — In the chapter on the Adjustment of Par- 
 ticular Average, I flatter myself that I have refuted 
 successfully and in a few words the different errone- 
 ous methods, and that I have elucidated, by import- 
 ant remarks, the true principles which are now fol- 
 lowed. — The proposal advanced at the conclusion 
 of the last chapter for introducing a more efficacious 
 clause, instead of the usual memorandum, will, I 
 trust, be found conducive (at least in a preparatory 
 manner) towards attaining that very desirable object. 
 
 As to foreign laws ; I have communicated all 
 those which are of importance on the subject of 
 general average and bottomry, because the British 
 merchant and ship-owner are often obliged to con- 
 form to the former, and must be able to adapt to the 
 latter the contracts which they may have occasion 
 to enter into in foreign countries. Of laws upon 
 other subjects I have communicated only what is 
 necessary in order to the comprehension of the spirit 
 of foreign legislations, to prevent insulated laws or
 
 PREFACE. XXV 
 
 passages of foreign authors from being misconstrued 
 or misapplied. 
 
 To make frequent use of calculation was, in my 
 opinion, necessary in a work of this description. In 
 many cases the law itself may not only be elucidated, 
 but even demonstrated by calculation. 
 
 To conclude: — My book is the result of many 
 years' study, researches and experience. I am well 
 aware of its imperfections, but I trust that, such as 
 it is, it will be found useful. 
 
 William Benecke. 
 Lewisham-Road, May 4, 1824.
 
 CONTENTS. 
 
 CHAPTER I. 
 Op Valuations. Stevens. Part II. 
 
 Art. 1. Of Goods 1 
 
 Opening valuation id. 
 
 Origin of valuations 5 
 
 Objections to valuations 6 
 
 Specific valuations id. 
 
 High and low 7 
 
 Fraudulent id. 
 
 Interest declared 8 
 
 Charges of recovery id. 
 
 Art. 2. Of Ships 8 
 
 In an open policy id. 
 
 Diflferent values in divers policies 9 
 
 High and low valuations id. 
 
 Art. 3. Of Freight 10 
 
 CHAPTER II. 
 
 Of Valuation. Benecke. Chapter IV. 
 
 Definition 12 
 
 Different values of the same subject id.
 
 CONTENTS. 
 
 Value of goods at the place of their departure 13 
 Current articles id. 
 Goods which have no market price 14 
 Shipping charges and premium are to be consider- 
 ed as part of the prime cost id. 
 Premium on premium 15 
 Commission for effecting insurance 16 
 Charges of recovery id. 
 Other deductions 18 
 Interest on premium 19 
 Suras to be insured for freight and charges 21 
 For profit and agent's commission id. 
 Valuation of goods fi-om remote countries 22 
 Charges on the outward voyage incurred on account 
 
 of the homeward cargo 24 
 
 Valuation of goods transhipped 25 
 Valuation of goods when part of the premium is 
 
 to be returned upon certain contingences 26 
 Valuation of ship and freight 28 
 Of money spent, &c, and of bottomry interest 32 
 Difference between valued and open policies id. 
 How the interest in goods in open policies is de- 
 termined id. 
 Short interest 35 
 Interest in ship and freight 36 
 Valued policies 37 
 Effect of valuation in England 38 
 In foreign countries 45 
 Whether the policy must be opened in case of a 
 
 partial loss 48 
 
 Valuation on each article 54 
 
 Reduction of foreign moneys id. 
 
 Clause ' to be valued hereafter' 55 
 
 Fraudulent valuation id.
 
 CONTENTS. XXIX 
 
 CHAPTER III. 
 
 Of Average. Stevens. Part I. Introduction. 
 Definition and explanation of Average 57 
 
 CHAPTER IV. 
 
 Of General Average. Stevens. Part I. Chapter I. 
 Section 1. 
 
 Two occasions of general average CO 
 
 Requisites 01 
 Art. 1. Claims for General Average, of which there is no 
 
 dispute 62 
 
 r. Jettison id. 
 
 11. Damage to cargo 65 
 
 III. Damage to ship 66 
 
 IV. Cutting or slipping from anchors id. 
 V. Cutting away masts, sails, l)oats id. 
 
 VI. Sails, ropes, and other materials used for usual pur- 
 poses 68 
 VII. Sale of merchandize in a port of necessity id. 
 VIII. Freight of goods sold 74 
 IX. Pilotage into port of necessity 75 
 X. Unloading cargo in port of necessity id. 
 XI. Getting off stranded ship id. 
 XII. Hire of extra hands to pump 76 
 XIII. Extra charges in port of necessity id. 
 XIV. Bringing a distressed ship into port 77 
 XV. Salvage to men of war, &c, for re-capture 78 
 XVI. Composition with an enemy 79 
 XVII. Expenses of reclaiming captured property id.
 
 XXX CONTENTS. 
 
 Art. ■). Doubtful or disimted Claims 81 
 
 a. Vi)huitary straudiiig to avoid shipwreck id. 
 
 b. Voluntary stranding to avoid capture 84 
 
 c. Damage in an engagement 85 
 
 d. Expense of curing wounds 86 
 
 e. AVages and provisions in case of detention 87 
 
 f. Repairs in port of necessity 90 
 
 g. Rewards promised to seamen 91 
 li. Damage to cargo in extinguishing an accidental 
 
 fire id- 
 
 CHAPTER V. 
 
 Of Averages, and the distinction between General 
 AND Particular Average. Benecke. 
 
 Definition 93 
 Different kinds of average, general average de- 
 fined 96 
 Causes of diversities in the laws respecting this 
 
 subject id. 
 
 Enumeration of general and particular averages 101 
 
 Salvage charges 102 
 
 Jettison id. 
 Goods thrown overboard, if recovered, belong to 
 
 their former proprietor 103 
 The freight of goods thrown overboard is compen- 
 sated for by general average " id. 
 Damage to the vessel and goods left in her by jet- 
 tison 104 
 Jettison by which the vessel is not saved 105 
 Vessel preserved by jettison, but subsequently lost 108 
 Damage done to the vessel for the common benefit 109 
 Masts, cables, &c, cut away id- 
 Boats cut away ' 113
 
 CONTENTS. XXXI 
 
 Crowding sail 114 
 
 Damage clone to the goods by crowding sail, &.c, 116 
 
 Anchoring upon dangerous ground id. 
 
 Repairs and expenses at a port entered in distress 117 
 
 Law and practice in England 122 
 
 In foreign countries 124 
 
 Exterior damage sustained by the goods in port 132 
 
 Internal decay of the goods in port id. 
 
 Loss of goods in lighters 133 
 
 Protraction of the voyage by storm, frost, ifcc 137 
 
 Accidental stranding 138 
 
 Voluntary stranding 143 
 
 Running foul 146 
 
 Perils of war " 147 
 
 Convoy 149 
 
 Ransom from privateers and pirates 152 
 
 Seizure, plundering 153 
 
 Salvage 154 
 Damage sustained in order to escape from an 
 
 enemy id. 
 Damage sustained by defending a ship against 
 
 enemies, and healing of the wounded id. 
 
 Remuneration 156 
 
 Detention of princes, capture 157 
 Wages and provisions 158, 161 n. 
 
 Arrest for examination 161 
 
 Plague 163 
 
 Quarantine 165 
 
 Fire id. 
 
 Charges 166 
 
 Op Money raised abroad for the purposes of the 
 voyage, and its relation to average. 
 
 Definition 167 
 
 Several ways of raising money abroad 168 
 
 I. Loan upon the credit of the owners, or by draft 169 
 
 Owner's liability for it in England id.
 
 XII CONTENTS. 
 
 In foreign countries 170 
 
 Means of providing against a loss exceeding a 
 total one 173 
 
 II. Supplies by bottomry loan and sale 174 
 
 Authority of the master to resort to them ; pro- 
 priety or impropriety of the measure id. 
 Validity of an hypothecation of ship and cargo 176 
 Relations and obligations arising out of a justifi- 
 able sale in a port of shelter 181 
 General investigation of the subject 182 
 Foreign laws 185 
 Underwriters in England are not liable for goods 
 sold by the master, in order to pay for the repair 
 of the ship 188 
 British ship-owners become debtors personally for 
 
 goods sold abroad for the necessities of the ship 191 
 In what cases a contribution for goods sold takes 
 
 place after the loss of the vessel 193 
 
 Profit on goods sold id. 
 
 Relations and obligations arising from a justifiable 
 
 hypothecation of ship and cargo 195 
 
 If ship and cargo be totally lost id. 
 
 If they remain, totally or in part, and (A) the 
 property of each individual is suflacient for the 
 payment of his share id. 
 
 (B). When this is not so, and (1) the money has 
 
 been borrowed for the benefit of the ship-owner 196 
 
 (2) for the benefit of the whole concern 199 
 
 Liability of underwriters 203 
 
 Hypothecation of the ship alone, for the benefit of 
 
 all parties id.
 
 CONTENTS. 
 
 CHAPTER VI. 
 
 Adjustment op General Average, &.c. Stevens. Part I. 
 Chapter I. Section II. Entitled 'of the Apportionment,' ^c. 
 
 Alt. 1. Of the cargo 206 
 Jettison of goods not paying freight id. 
 Jettison before or after half of voyage is per- 
 formed 206 n. 
 Jettison at commencement of voyage 207 
 Value at port of discharge is the basis of contribu- 
 tion 208 
 If proceeds of cargo do not pay expenses 209 
 Where adjustment to be made • id. 
 Freight pro rata contributes 210. 220 
 Goods on deck id. 
 Freight advanced id. 
 Lien on cargo id. 
 Average bond id. 
 
 Art. 2. Of the Ship 211 
 
 Foreign laws as to value on v^^hich ship contributes id. 
 
 True value of ship in contribution 213 
 
 Art 3. Of the Freight 215 
 
 Foreign laws as to contributory value of freight id. 
 
 Freight for successive passages 216 
 
 When cargo belongs to the owner of the ship 217 
 
 Wages deducted id. 
 
 Provisions, whether to be deducted from freight 219 
 
 Freight of goods jettisoned, contributes 220 
 Where other goods are shipped instead of those 
 
 jettisoned . id. 
 
 Freight pro rata contributes 220. 210 
 
 Art. 4. Remarks on contributory interest 221 
 Value in the policy and in contribution different id. 
 Value of the different subjects id. 
 Rate per cent in the policy and in the average dif- 
 ferent 222 
 General average for expenses also a total loss 223 
 Foreign adjustment id. 
 E
 
 CONTENTS. 
 
 CHAPTER VII. 
 
 Of the Adjustment of General Average. Benecke. 
 
 Definition 227 
 
 I. Estimate of the property sacrificed : if the vessel 
 
 arrive at the place of her destination id. 
 
 If she return to the port of departure 228 
 
 If she do not reach the port of her destination 229 
 
 If totally lust 231 
 
 If part of the goods preserved by jettison be after- 
 wards lost 232 
 Freight of jettisoned goods 234 
 Estimate of goods damaged before they were 
 
 thrown away 235 
 
 Of damage arising in consequence of jettison 236 
 
 What goods are not allowed for id. 
 
 Estimate of damage done to the vessel 237 
 
 Deduction of a third 238 
 
 II. Apportionment of general average id. 
 
 Contribution of the cargo id. 
 
 Value at the port of discharge is the basis 239 
 
 Deteriorated goods 240 
 
 Goods damaged by external accidents 241 
 
 Disbursements how assessed id. 
 
 Three different values are the bases in difierent 
 
 contributions 242 
 
 In case of restitution, value at port of discharge is 
 
 the basis id. 
 
 Subsequent damage does not affect contribution 
 
 for disbursements 243 
 
 The same goods may contribute on different values id. 
 The net amount is the basis of contribution 244 
 
 When the invoice price is the basis id. 
 
 Net proceeds are the basis at an intermediate port 245 
 Foreign laws id. 
 
 What articles ar^ subject to contribute 247
 
 CONTENTS. XXXV 
 
 Goods shipped on deck 248 
 
 Sacrificed articles id. 
 
 Goods put into barges 249 
 
 What articles are exempted 250 
 
 Ammunition and provisions id. 
 
 Seamen's luggage and wages 251 
 
 Free people id. 
 
 Passengers' luggage id. 
 
 Clause in the charter-parties of the East India 
 
 Company 252 
 
 Contribution of the ship id. 
 
 Provisions are not included in contributory value 
 
 of the ship _ 253 
 
 Contribution of the freight 257 
 
 If payable only on the contingency of the ship's 
 
 delivering a return-cargo id. 
 
 Apportionment of freight 258 
 
 Ship sent out in ballast to bring a cargo home 264 
 
 Foreign laws respecting the contribution of ship 
 
 and freight 266 
 
 Place of adjustment 268 
 
 Case of party failing to contribute to general av- 
 erage 269 
 Liability of underwriters as to general average 270 
 Liability of underwriters as to claims for general 
 average adjusted in a foreign country 271 
 
 CHAPTER Vm. 
 
 Of Particular Average, &.c. Stevens. Part I. 
 Chapter II. 
 
 Definition 280 
 
 Two modes of adjustment, 1st, salvage loss, 2d, com- 
 parison of proceeds of sound and damaged 281
 
 XXXVl CONTENTS. 
 
 Section I. Of a partial loss commonly called a 
 
 salvage loss id. 
 
 Salvage loss defined 282 
 
 Adopted in case of shipwreck 284 
 
 Is applicable in only one case of partial loss 285 
 
 Section II. Of a partial loss commonly called a 
 
 particular average 287 
 
 Adjustment by comparison of proceeds of sound 
 
 and damaged id. 
 
 Whether freight and charges are to be deducted 
 
 from proceeds in adjusting partial loss 289 
 
 History of this subject id. 
 
 The true rule is a comparison of gross proceeds 294 
 
 Section III. Of the various modes of adjustment 296 
 
 Four modes 297 
 
 Art. I. On the principle of salvage loss, examples on a 
 
 saving, losing and gaining market 298 
 
 Art. 2. Adjustment on the difference between sound and 
 
 damaged sales 307 
 
 Art. 3. Adjustment by comparison of net proceeds of 
 
 sound and damaged goods 318 
 
 Art. 4. Adjustment by comparison between gross pro- 
 ceeds of sound and damaged goods 324 
 Art. 5. The assured's indemnity when the adjustment is 
 
 made on the gross proceeds 330 
 
 Art. 6. Extra charges arising on the sale of damaged 
 
 goods 333 
 
 Art. 7. Mode of adjustment of a partial loss propez-iy so 
 
 called, on goods 335 
 
 CHAPTER IX. 
 
 Of the Adjustment of Particular Average on 
 Goods. Be.necke. Chap. IX. 
 
 Definition 341
 
 CONTENTS. XXXVll 
 
 Goods arriving damaged at the place of their desti- 
 nation 342 
 
 The loss is to be adjusted upon a comparison of 
 the gross proceeds of sound and damaged goods id. 
 
 Erroneousness of all other modes of adjustment : 
 
 1. That on the difterence between the sound and 
 
 damaged sales 343 
 
 2. As a salvage loss 344 
 
 3. On a comparison between the net proceeds id. 
 Goods sold in bond 346 
 How the value of the damaged and sound goods is 
 
 to be ascertained 349 
 
 Deductions 350 
 
 Extra charges of sale 351 
 
 Sale of sound and damaged goods 352 
 
 Loss in weight 353 
 
 Total loss of part id. 
 
 Particular average on several articles comprised in 
 
 the same policy 354 
 
 Goods not reaching the place of their destination 355 
 Goods sold at an intermediate place, on account of 
 
 being damaged 357 
 
 Particular average on goods not reaching the place 
 
 of destination 359 
 
 Remarks on the insurance of freight, payable at the 
 
 place of destination 361 
 
 Partial loss on profits and commissions 361 n. 
 
 Increase of freight for goods transhipped 363 
 
 CHAPTER X. 
 
 Adjustment op Particular Average or partial loss 
 ON Ships. Stevens. Part I. Chapter IH. 
 
 Distinction of partial loss and wear and tear 365 
 
 I. Stranding 366
 
 XXXVIU 
 
 CONTENTS. 
 
 H. Damage by running foul of other vessels 367 
 
 III. Damage to ships' upperworks 369 
 
 IV. Boats washed overboard id. 
 V. Fire or lightning 370 
 
 VI. Loss incurred while the ship is scudding before 
 
 the wind or lying to id. 
 
 VII. Plunder or damage in consequence of capture 371 
 
 VIII. Damage by an engagement with an enemy id. 
 
 IX. Sails split or masts sprung in carrying a press 
 
 of sail to escape capture or when on a lee-shore 372 
 Burthen of proof of loss is on the assured 373 
 
 Deduction of a third for new id. 
 
 Wear and tear as distinguished from loss 374 
 
 Damage by rats and worms id. 
 
 Rule as to wear of sheathing 374 n. 
 
 Painting, rule as to, at St Petersburgli 375 n. 
 
 Proceeds of old materials 376 n. 
 
 CHAPTER XI. 
 
 Particular Average on Ships. 
 Part of chapter IX. 
 
 Benecke. 
 
 What damage is particular average on the ship 377 
 
 Loss by negligence 378 
 
 Previous damage id. 
 
 Damage by stranding 381 
 
 Damage while scudding or lying to 382 
 
 Masts, upperworks, boats, implements, sails id. 
 
 Press of sail to avoid a lee-shore id. 
 
 Working and straining of ship 383 
 
 Damage in an engagement id. 
 
 Cables and anchors 384 
 
 Worms and rats id. 
 
 Proofs id. 
 
 Deduction of a third for new id.
 
 CONTENTS. XXXIX 
 
 A third deducted from labour 385 
 
 Anchors, iron-work 386 
 
 When third not deducted id. 
 
 Repairs abroad at extraordinary expense 387 
 
 Effect of undervahiation 388 
 When freight ought to bear a part of expense of 
 
 repairs 389 
 
 Wages and provisions during repairs id. 
 
 Labour of crew in repairs 390 
 
 Particular average on freight 390 n. 
 
 CHAPTER XII. 
 
 Of the Memorandum. Stevens. Part IV. 
 
 Form of the memorandum in English policies 392 
 
 In American policies 392 n. 
 
 Art. 1. Of the origin and intention of the memorandum 395 
 
 Leakage and breakage id. 
 
 2. Of the words Corn, Fish, Salt, Fruit, Flour, 
 
 and Seed 396 
 
 4. Of the words Free from Average under Five 
 Pounds per cent and under Three Pounds per 
 cent 397 
 
 One loss must be three per cent 401 
 
 Ship only at risk and loss in nature of general 
 
 average 402 
 
 Particular charges in general average id. 
 
 Whether auction duty, &c, are included in three 
 or ^ve per cent 403 
 
 Art. 4. Of the meaning of the words Warranted Free 
 FROM Average, unless General or the Ship 
 be Stranded 404 
 
 I. Of the words loarranted free from average id. 
 
 Total loss of a part 405 
 
 II. Of the meaning of the words Unless General 408
 
 Xl CONTENTS. 
 
 III. Of the meaning of the words Or the Ship be 
 
 Stranded 408 
 
 Art. 5. Of the word Stranded, and what shall be con- 
 sidered a stranding within tlie meaning of the 
 policy 410 
 
 CHAPTER XIII. 
 
 Of the Memorandum. Benecke. Chapter X. 
 
 Losses originating in the internal quality of the 
 
 articles insured are not within the policy 416 
 
 Still the risk on such articles is greater than on 
 
 others id. 
 
 Memorandum 418 
 
 Articles enumerated 419 
 
 Meaning of the word ' stranded' id. 
 
 Liability of underwriters in the case of the ship 
 
 being stranded 423 
 
 Wlien there is no stranding 424 
 
 Bilging 424 n. 
 
 Whether successive losses may be combined 426 
 
 Ship only at risk id. 
 
 Charges on sales of damaged goods id. 
 
 Total loss of a part 427 
 
 Clause ' to pay average on each package,' <fec, 439 
 On what quantity or amount the exception is to 
 
 be computed 441 n. 
 
 Premium is to be deducted before applying the 
 
 exception id. 
 
 Breakage, leakage 443 
 
 Insufficiency of the Memorandum ib. 
 
 Proposals for introducing a more efficacious clause 444 
 Foreign laws and usages with respect to the clause 
 
 ' free from average,' &.c 448
 
 LIST OF CASES. 
 
 [Cflsea in Italics are added to this Edition.'\ 
 
 In the Cases cited by Mr Stevens he merely cites the Reports with- 
 out giving the name of the case. The names of cases cited by him are 
 given in the following Hst. 
 
 Page 
 
 American Ins. Co. v. Center S91,ii. 
 Anderson v. Roy. Exch. Ass. Co. 
 
 430 
 Anderson v. Wallis 405 
 
 Astor V. Un. Ins. Co. 419, n. 
 
 Baker v. Towry 422, 415 
 
 Bakewell v. Unit. Ins. Co. 419, n. 
 Barclay v. Cousins 64 
 
 Baring v. Henckle 420 
 
 BarJcer v. Ludlow 419, n. 
 
 Barrow ^ al. v. Bell 424, n. 
 
 Birkley v. Presgrave 66. 96. 103 n. 
 
 277 
 Bishop v. Pentland 424, n. 
 
 Bondret V. Hentig 371, n. 
 
 Bousfield V. Barnes 44 
 
 Bovvring v. Elmslie 423 
 
 Bradhurst v. Col. Ins, Co. 145, n. 
 BrooTc v. Louisiana Ins. Co. 438, n. 
 Brooks v. Oriental Ins. Co. 167, 
 376, n. 441, n. 
 Brown V. Stapyleton, 44, n. 250, n. 
 Burnett v. Kensington 422, 395, 
 408, 409 
 Busk V. Roy. Exch. Ass. Co. 377 
 
 Page 
 Butler V. Fisher, 146 
 
 Butler V. Wildman 64 
 
 Byrnes v. Nat. Ins. Co. 218.376, n. 
 
 Camden v. Anderson 332 
 
 Cantillon v. Lend. Ass. Co. 423 
 Carruthers v. Sydebotham420,422 
 Carter v. Boehm 218 
 
 Caze v. Beilly 145, n. 
 
 Clark v. Mass. F. ^ M. Ins. Co. 
 
 70, n. 
 Cocking v. Frazer 423, 428, 434, 
 
 435 
 Coffin V.St or er 391, n. 
 
 Cologan v. Lond. Ass. Co. 434, 
 
 436, n. 
 Columbian Ins. Co. v. Catlett 26, n. 
 Copenhagen, case of the 57. 69 
 Coster v, Phoen. Ins. Co. 419, n. 
 Covington v. Roberts 96, 115, 
 372. 382 
 
 Da Costa v. Newnham 76. 87. 90. 
 
 122. 375, n. 386 
 
 Dagleish v. Davidson 278, n. 
 
 Doll V. Higginson 45, n.
 
 xlii 
 
 TABLE OF CASES. 
 
 I'agc 
 
 Davidson v. JViUascy H 
 
 Davis V. llallctt 37, n. 
 
 Davy V. Milford 427, 431, 398, 408 
 Dc Lons;uc7ncre v. Fhoen. 
 
 Ins. Co. 265, n. 
 
 Dcpcau V. Ocean Ins. Co. 378, n. 
 
 379, n. 
 Depeystcr v. Col. Ins. Co. 378, n. 
 Dobson V. Wilson 181, n. 191, 
 
 198, 270 
 
 V. Bolton 420 
 
 Dorothy, case of the 216 
 
 Dumas v. Unit. Ins. Co. 30, n. 
 Dunham v. Com. Ins. Co. 376, n. 
 Dyson v. Rowcroft 429, 433, 
 
 434, 435 
 
 Eager v. Atlas Ins. Co. 37G, n. 
 Eden V. Poole 390 
 
 Ellery v. Merchants Ins. Co. 424, n. 
 Etchers v. Aldan 36, n. 
 
 Evans v. Williams 169, n. 
 
 Eyre v. Glover 21, n. 
 
 Favorite, case of the 218. 283, n 
 
 Fcisc V. Aguilar 38, n. 
 
 FenivicTc v. Robinson 376, n. 
 
 Fletcher v. Poole 390 
 
 Forbes v. Aspinall 30, n. 39 
 
 Forsboom v. Kruger 284 
 
 Freeman v. East Ind. Co. 179 
 
 Glennie v. Lond. Ass. Co. 432, 435 
 Goldsmid v. Gillies 285, n. 
 
 Gordon v. Rimmington 377 
 
 Gratitude, case of the 69. 176. 196. 
 
 205 
 Gray v. Wain 145, n. 
 
 Hadgedorn v. Whitmore 400. 440 
 
 Haigh v. De la Cour 7 
 
 Hamilton v. Mendes 78 
 
 Harder y. Brotherstone 169, n. 
 
 Page 
 
 Harman v. Kingston 8 
 
 v. Vaux 412. 420 
 
 Haven v. Gray 38, n. 
 
 Hearne v. Edmunds 422 
 
 Hedberg v. Pearson 407, n. 432 
 Hemmcmvay v. Eaton 38, n. 
 
 Hudson V. Harrison 70, n. 
 
 Humphrey v. Un. Ins. Co. 169, n. 
 
 376, n. 
 Hurry v, Roy. Exch. Ass. Co. 
 
 294. 360, n. 
 Hunt V. Roy. Ex. Ass. 70, n. 
 
 448, n. 
 Hunter v. Potts 374, 384 
 
 Jackson v. Charnock 122 
 
 Johnson v. Sheddon 349, n. 360, 
 
 n. 293 
 Johnson v. Shippen 179 
 
 Jones V. Ins. Co. of N. A. 161, n. 
 
 Kane v. Com. Ins. Co. 
 
 45, n. 
 
 Langhorn v. Alnutt 28, n. 
 
 Lawrence v. N. Y. Ins. Co. 360, n. 
 Leavenworth v. Delafield 161, n. 
 
 255, n. 
 Lecheminant v. Pearson 59 
 
 Le Cras v. Hughes 51 
 
 Lenox v. Un. Ins. Co. 277, n. 
 
 Lewis V, Williams 134 
 
 Lewis V. Rucker 6. 51. 292, 292, n. 
 301. 317, 318. 324, 365 
 Luke V. Lyde 391, n. 70, 283, n. 
 
 Mason v. Skurray 428, 435 
 
 M'Andrews v. Vaughan 429, 435 
 MBride v. Mar. Ins. Co. 161, n. 
 M'Dougle V. Roy. Ass. Co. 41 2^ 
 
 421 
 Maggrath v. Church 105, n. 
 
 Martin v. Salem Ins. Co. 161, n. 
 Mercurius, case of the 84
 
 TABLE OF CASES 
 
 xliii 
 
 Page 
 
 Minium v. CoL Ins. Co. 45, n. 
 
 55, n. 
 Mitchell V. Edie 405 
 
 Morrison v, Noorman 180 
 
 Morean v. U. S. Ins. Co. 437, n. 
 Mumford v. Hallett 21, n. 
 
 Neilson v. Louisiana Ins. Co. 
 
 419, n. 
 
 V. Col Ins. Co. 437, n. 
 
 Nesbitt V. Lushington 409. 423 
 Newman v. Cazalet 274 
 
 Nickels V. Maine F. Sf Mar. 
 Ins. Co. 376, n. 
 
 Ogden V. Col. Ins. Co. 55, n. 
 
 Ocean Ins. Co. v. Covington, 
 
 441, n. 
 
 Palmer v. BlacTcbourne 37, n. 
 
 Parmeter v. Todhunter 170, n. 
 Parry v, Aberdein 436, n. 
 
 Patapsco Ins. Co. v. Coulter 22, n. 
 Penny v. JV. Y. Ins. Co. 161, n. 
 Pleasants v. Mrtr. /ns. Co. 45, n. 
 Plummer v. Wildman 122, 146 
 Post V. Phoen. Ins. Co. 38, n. 
 Powell V. Gudgeon 188 
 
 Power V. Whitmore 91 . 123. 225. 
 275. 279, n 
 Progress, case of the 216. 257 
 
 Rayner v. Godmond 424, n. 
 
 Reid V. Darby 179 
 
 Richardson v. Nourse 72. 174 
 
 Robertson v. Ewer 161, n. 390 
 
 Robinson v. Touray 7. 55, n 
 
 Rohl V. Parr 374. 384 
 Ryland v. Com. Ins. Co. 70, n. 
 
 Page 
 Saltus V. Ocean Ins. Co. 437, n. 
 Searle v. Scovel 391, n. 
 
 Scott V. Bourdillion 396 
 
 Shaw V. Felton 29, n. 43 
 
 Shiff V. Louisiana Ins. Co. 278, n. 
 Simond v. Boydell 28, n. 
 
 Simonds v. Lardner 278, n. 
 
 Sims V. Gurney 145, n. 
 
 Spafford v. Dodge 161, n. 
 
 Strong V. N. Y, Firemen Ins. 
 
 Co. 278, n. 
 
 Susa, case of the 78. 175 
 
 Tathan v. Hodgson 369 
 
 Taylor V. Curtis 155,86 
 
 Thames, case of the 369. 383 
 
 Thompson v. Rowcroft 434 
 
 V. Roy. Ex. Ass. Co. 
 
 398. 430 
 Thompson v. Taylor 265, n. 
 
 Treadwell v. Union Ins. Co. 
 
 70, n. 437, n. 
 
 Usher v. Noble 1, 2. 4. 33, n. 51 
 Vruow Judith, case of the 175 
 
 Wadsworth v. Pacific Ins. Co. 
 
 437, n. 
 Walker v. U. S. Ins. Co. 145, n. 
 Waller v. Louisiana Ins. Co. • 
 
 388, n. 
 Wain V. Thompson 438, n. 
 
 Walpole V. Ewer 274 
 
 Watson V. Mar. Ins. Co. 161,^n. 
 Webster v. De Tastet. 218 
 
 Williams v. Lond. Ass. Co. 217. 
 
 257 
 Wilson V. Smith 408, 409. 423, 
 
 424 
 Wilson V. Millar 69, 70, 78
 
 I
 
 AUTHORS, TREATISES, CODES, ORDINANCES, AND 
 SEA-LAWS, REFERRED TO, OR CITED. 
 
 A. 
 
 Abbott on Shipping, by Story, edition ofl829, 58, n. 61. 70. 70, n. 80, n. 90, n. 91. 
 
 102. 104. 109. 146. 146, n. 153, 154. 156. 159. 161, n. 205, 206, 207. 
 209. 219. 236. 242. 250. 252. 255, n. 257. 264, n. 283, n. 284. 286. 366 
 Amsterdam, Ordinances of, A. D. 1598. 1673. 1744. 1756. 1776, 33. 45. 211. 213. 395 
 
 Antwerp, Ordinances of, A. D. 1593. 70. 81. 206. 211. 215. See Philip 11. 
 
 [JVbfe. This ordinance is mentioned by Cleirac as an ordinance of Philip II ' pour 
 les Assurances de la Bourse d'Anvers.' — I am inclined, with Magens, to think 
 the date should be 1563, and that it is the same ordinance as that mentioned 
 above. It was on these ordinances that Adrian Verwer wrote his annotations. — 
 Stevens.l 
 
 B. 
 
 Baldasseroni, 35. 47. 125. 152. 154. 156. 162, 163. 236. 246. 267. 450. 
 
 [Note. This is an Italian writer, not yet translated into English. He is cited by 
 
 Bilboa, Ordinances of, 1737, 47. 66. 69, 70. 102. 105. 108. 116. 128, n. 135. 143. 146. 
 
 154. 156. 166. 171. 21 1. 229. 236, 237. 246, 247. 
 Boucher, P. B. Consulat de la Mer, ou Pandectes du Droit Commercial et Maritime, a 
 
 Paris, 1808, 62, n. 63, n. 
 
 Burlamaqui, 79. 
 
 Beawes, Lex Merc. Red. 1758, 87, 88. 121. 
 
 Bynkershoek, Quest. Jur. Priv. 88. 138. 149. 218. 367. 
 
 C. 
 
 Copenhagen, Ordinances of. A. D. 1683. 1746. 48. 67. 81. 207. 211. 215. 217. 225. 396,397 
 Consolato del Mare, 60. 62, n. 64. 67. 79. 105. 146. 207. 211. 215. 217. 236. 248. 286. 
 
 [Kote. See Mr Stevens's note, p. 62, for an account of the Consulate del Mare.] 
 Casaregis, Discourses on Commerce, 67. 158. 269. 
 
 [This work is in Latin, circa 1720, at Florence.] 
 Cowell's Law Dictionary, A. D. 1607, 56. 
 
 Cleirac, Les Us et Coiltumes de la Mer. Rouen, A. D. 1671 251 
 G
 
 xlvi AUTHORS, TREATISES, CODES, 
 
 D. 
 
 Digest of Justinian, 1. 58. 60, 61, 62, 63, n. 65, 66. 79. 81. 84. 99, n. 102. 105. 109. 121. 
 134. 146. 154. 205, 206, 207, 208. 219. 226. 247. 270. 283, n. 366, 367. 369 
 [.A'o^f. The References are generally to the Rhodian Law.] 
 Domat's Civil Law, (iO. 
 Diuiish Ordinances, 101, n. 104, 105. 109. 125. 135. 171. 236 
 
 E. 
 
 Emerigon's Treatise on Insurance, A. D. 1783, 23.34.44. 46. 57. 60,61.63. 63, n. 64,65, 
 66, 67. 79, 80. 87. 101, n. 106. 109. 115. 126. 130, 131. 136. 146, 147. 
 151, 152, 153, 154. 163. 165. 170, 171. 185, 186. 205, 206,207,208,209. 
 217. 236. 247. 250. 252. 269, 275. 365. 368. 370. 405. 448, 449 
 
 F. 
 
 Florence, Ordinances of, 1523, 211 
 
 French Code, 23. 35. 45. 96. 99, n. 102. 104. 106. 109. 126. 135. 142. 146, 147. 1.54. 159. 
 
 161, n. 164 to 170. 172, n. 175. 187. 211. 217. 229. 236. 246. 250, 251. 
 
 267. 209. 283, n. 363. 369, n. 395. 448. 450 
 French Ordinance of Marine, 1681, 24. 35. 61, 62. 66. 69. 78, 79. 81. 85. 87. 96. 99, n. 
 
 101, n. 104. 106. 109. 115. 135. 142. 159, 160, n. 170. 172, n. 175. 
 
 208, 209, 210. 215. 218. 220. 234. 236. 248. 250, 251. 267. 269, 270. 
 
 283, n. 292. 395. 
 
 G. 
 
 Grotius, 58. 79. 209 
 
 Genoa, Ordinances of, 1610, 207. 211. 215. 227. 267 
 
 H. 
 
 Hamburgh, Ordinances of, 2, n. 33. 85. 96. 99, n. 102. 109. 116. 124. 135. 142. 147. 153. 
 1.56. 161. 171, 172. 208. 211. 215. 217. 234,2^5, 236. 247. 250. 266. 269, 
 270. 29C, n. 303. 390, 397. 404. 411. 425, n. 450. 
 [A'ote. Mr Stevens, speaking of the Ordinances of the Hanse Towns of 1597, 
 says, ' Benecke, a writer on Insurance at Hamburgh quotes the Ordinance of 
 Lubeck, Hamburgh, and Bremen, of 1591, but it is probable he means this.'] 
 Huet, Hist, du Com. des Anc. 58 
 Hanse Towns, Ord. A. D. 1.597. 1614. 85. 
 
 Holt's Law of Shipping, 101. 169. 174, 175. 
 
 J. 
 
 Johnson's Diet. 56, 57. 
 Jurist, American, 376, n. 
 
 K. 
 
 Konigsburgh, Ordinances of, 1730. 1766. 67. 81. 208. 211. 215. 217. 395. 
 
 Kaimes's Prin. of Equity, 1767, 60. 65. 84. 207. 209. 218. 220, n. 221, n. 225. 283, n. 
 
 L. 
 
 Langenbach's Observations on the Ordinance of Hamburgh, 2, n. 137. 187. 
 
 Le Guidon de la Mer, 9. 45. 61. 65. 69. 368. 
 
 Loccennius, De Jure Maritino et Navali, 1650, 63, n. 
 
 Leghorn, Ordinances of, n. 267. 
 
 Lever, Darcy, 411. 
 
 Magens, A. D. 1755, 3. 8. 22. 60. 02. 70. 82. 87, 88. 134, n. 159. 163. 165. 200. 209. 211. 
 
 217, 218, 219, 220, 221, 222. 282. 291, 292. 374, 375. 380. 387. 395,396, 
 
 397, 398. 415. 427. 
 
 M. 
 Millar's Elements of the Law relating to Insurances, &c, 1787, 3. 55, 56. 60. 207. 365.
 
 ORDINANCES, AND SEA-LAWS. xlvii 
 
 Marshall on Insurance, 4. 9. 44. 52. 5G. 60. 03, n. 79. 81, 82. 157, n. 163. 217, 218. 365. 
 
 368. 371, n. 396, 397. 404, 405. 408, 409, 410. 412. 
 Molloy Jur. Mar. 1676, 62. 65. 76. 206, 207. 246. 410. 
 
 Malynes, Consuetudo & Lex Mercatoria, 1622, 65, 207, 208. 246. 
 
 Mornac, 206. 
 
 O. 
 
 Ordinance of Marine of France, 1681. See French Ordinances. 
 Oleron, Laws of, 1194 or 1266, 62. 66. 69. 211. 215. 283, n. 366, 367. 
 
 P. 
 
 Portugal, Ordinances of, 211. 215. 
 
 Park on Insurance. 3. 33. 51. 60. 63, n. 102. 163. 218. 224. 396. 419. 433. 
 
 Pothier's Treatises on Insurance, and on Charterparties, 1781, 45. 59. 60, 61, 62, 63, n. 
 
 64, 65, 66. 74. 79. 84, 85. 88. 129. 160. 186. 205, 206.208,209.211.217, 
 
 218. 222. 286. 365, 366, 367, 368. 370. 396. 405. 
 Prussia, Ordinances of, 47. 108. 116. 125. 142. 147. 156. 158. 234. 246, 237. 246. 248. 250, 
 
 251. 269. 
 Philip II, Ord. 84. 208. 211. 215. 219. 273. See Antwerp. 
 Phillips on Insurance, 12, n. 13, n. 14, n. 15, n. 19, n. 21, n. 22, n. 30, n. 31, n. 32, n. 33, n. 
 
 37, n. 38, n. 39, n. 53, n. 54, n. 55, n. 70, n. 80. 81, n. 105, n. 107, n. 
 
 114, n. 117, n. 124, n. 134, n. 161, n. 169, n. 255, n. 256, n. 264, n. 
 
 370. 394. 419. 
 Peckius ad Leg. Rhod. 209. 
 
 R. 
 
 Rhodian Law. See Digest. 
 
 Roccus de Navibus & Naulo, & de Assecurationibus, (circa) 1671, 4. 63, n. 65. 82. 121. 
 
 146. 269. 283, n. 367, 368, 369. 
 Rotterdam, Ordinances of, 1635. 1721. 1726, 66, 67. 70. 135. 147. 207. 211. 215. 225. 
 
 Ricardo's Negoce d' Amsterdam, 88. 121. 163. 
 
 S. 
 Santerna, de Assecurationibus, 4. 
 Scaccia de Cambiis, 5. 
 
 Straccha de Mercatura, navibus & assecurationibus, 1621, 4. 61. 65. 82. 206. 369. 
 
 Statutes 19 Geo. 2, 6. 12 Anne, c. 18. 77. 3 Geo. 1, c. 13, 77. 26 Geo. 2, c. 19. 77. 
 
 43 Geo. 8, c. 160. 78. 29 Geo. 2, c. 34. 78. 22 Geo. 3, c. 35. 79. 11 & 12 W. 
 
 3, c. 7. 86. 
 Sweden, Ordinances of, 1750, 48. 96. 99, n. 101, n. 102. 105. 108. 116. 125. 147. 154. 
 
 156. 158. 172. 207. 325. 237. 263. 396. 
 Selden's Mare Clausum, 1635, 58. 
 
 Shuback, de Jura Littoris, 84. 
 Spanish Ordinances, 367. And see Consulato & Bilboa. 
 
 V. 
 
 Vinnius, ad Peckium, 63, n. 219. 
 
 Valin's Commentaries upon the Ord. of 1681, A. D. 1760, 24. 45. 62, 63, n. 64. 70. 70, n. 
 76. 78. 116. 146. 155. 160. 208. 283, n. 299, n. 340. 365. 367, 368. 379. 
 Vattel, 79. 
 Verwer, Adrian, on the Sea-laws of Philip II, 88. 158. 163. 186. 211 
 
 W. 
 
 Weytsen, Quintin Van, Treatises on Averages, 1563, 57, n. 58, n. 60, 61, 62, 63, n. 
 
 65,66. 79. 84. 105. 108. 114. 116. 117. 134. 154. 206.208.211.236.371. 
 Weskett's Law of Insurance, 1781, 60. 62. 80. 85. 206. 212. 223. 283, n. 291. 327. 397. 
 
 Wisbuy, Sea-laws of, 62. 65. 76. 84. 99, n. 187. 206. 208. 211. 215. 283, n. 366, 367. 
 Wellwood's Abridgment of Sea-Laws, 1613, 76. 207. 366.
 
 ERRATA. 
 
 Page 36, line 14 from the top, the reference to chapter Becond remains by oversight in 
 the text, being a reference to the second chapter of the original edition, which chapter is 
 omitted in the present. 
 
 Page 37, n. (a). It is the practice of some despacheurs at least, perhaps the general 
 practice in the United States in case of making a port of necessity for repairs or supplies, 
 to charge the expenses of wages and provisions, &c, to general average, not merely to the 
 time of the vessel's being ready to sail on the voyage again, but until she actually sails, 
 in case of her being delayed by the weather merely, after the repairs are made or the sup- 
 plies obtained. 
 Page 85, omit reference to Appendix in the margin. 
 " 114, in the margin, for ' see above, p. 173,' read ' see above, p. 100.' 
 « 384, margin, for ' Pohl.' read ' Rohl.' 
 " 391, 1. 5, for ' Locke' read ' Luke.' 
 " 436, note, 1. 1, for ' 435' read ' 427.'
 
 STEVENS AND BENECKE 
 
 AVERAGXS. 
 
 CHAPTER I. — Of Valuations. 
 
 [Stevens. Part 2.] 
 
 The general principle of indemnity holds good First cost is 
 in all cases of insurance, whatever may be the thing indemniV 
 insured. The data, on which the interest in goods '" ^^ op^n 
 is founded, are the first cost, or value on board the ^° '''^' 
 ship at the place of loading, with the premium of 
 insurance, the policy duty, and (when incurred) the 
 commission for effecting the insurance ; to which 
 may be added, if inserted in the policy, the charges 
 of recovery in case of loss. This is the value as 
 between the assured and the insurer, ' in the absence 
 of any express contract on the subject.''' No devia- ^^ 12 East's 
 tion can be made from this rule without the consent ^^' 
 of the insurer. 
 
 Article 1 . On Policies on Goods. 
 
 The subject of valuations in policies on goods, has As to opening 
 occasioned much difference of opinion in Lloyd's ; [nYJafued" 
 it is rendered complex in consequence of the general- policy. 
 ly received idea, — that a different rule ought to Bcnec*kron 
 govern in the case of a partial loss, from that which valuation. 
 governs in a total loss. Strictly speaking, the value 
 of the thing insured, as relates to a policy of insur- 
 1
 
 Of Valuations. — Stevens. 
 
 h 12 East's 
 Rep. 63S). 
 
 ance construed as a contract of indemnity, is, as be- 
 fore mentioned, the cost on board and the premium, 
 and commission on the same (1). But as this is not 
 always tlie value to the merchant, it has been found 
 consistent with the liberal practice which ought to 
 prevail in all commercial dealings and contracts, to 
 allow the assured to value his goods in the policy, 
 and to inckide in such valuation a fair mercantile 
 profit. This is consistent with equity, and also with 
 law ;'' and in case of a total loss the principle is not 
 disputed, but the valuation is held good. And the 
 same in the case of (what is called) a salvage loss, 
 which partakes so much in its nature of a total loss. 
 But, it is said, ' in case of s. partial loss the valuation 
 must be opened out.' By which is meant, it must 
 be analyzed to show its component parts, and if any 
 profit be found, the valuation must be rejected, and 
 the invoice cost, with the premium, &c, be taken as 
 the interest at risk. This assertion does not appear 
 to rest on a good foundation. Let us examine it : 
 — The question is, whether in a partial loss, or a 
 particular average on a valued policy, (including a 
 profit,) the goods being ascertained to be deteriorat- 
 ed, for instance, one-fourth — the insurer shall be 
 called upon for a fourth part of the value agreed to 
 by him in the policy ; or whether this valuation 
 shall, in consequence of the partial loss, be set aside, 
 and a fourth part of the amount of the cost, with the 
 premium, &c, be demanded in its stead ? 
 
 The bill which was intended to have been brought 
 
 c Ord. Hamb 
 tit. xii, art. 4. 
 
 d Lang, sur 
 ord. Hamb. 
 214. 
 
 (1) Agreeably to this, the ordinance of Hamburgh'^ enacts — 
 ' Where no vahiation is made in a policy, the invoice, with the 
 addition of all charges, and premium of insurance, and re-in- 
 surance,' {i. e. insurance of the premium,) ' shall be the founda- 
 tion whereby to compute the loss.' 
 
 LangenbecJc'^ says, that the above had been the custom of 
 Hamburgh and most other places, for many years before it 
 appeared in the assurance code of that city.
 
 Of Valuations. S 
 
 into parliament in 1747, provided for valuations in 
 case of partial loss, and enacted, that if the goods 
 insured were damaged, the assured should recover 
 according to the valuation in the policy. 
 
 Magens says," ' to obtain what is aimed at by a e j Magene, 
 valuation, it is not sufficient to make it in the lump, or 
 at so much per hale or chest, because this would only 
 serve in case of a total loss. But to make a valua- 
 tion of service where goods are damaged, or partly 
 lost, the policy must express what particular goods 
 they are, and their value at a certain price by the ♦ 
 
 piece, yard, pound, &c, the insured paying the pre- 
 mium in full on that amount.' 
 
 Millar, to whom we are indebted for much sound 
 sense and just reasoning on this and many other sub- 
 jects, says,*^ ' in certain cases of partial loss upon a *" Millar, 365. 
 valued policy, it has been said that the valuation 
 must be opened. This applies to goods valued gen- 
 erally at a certain sum ; — but if valued at per bale, 
 hogshead, package, ton, &c : — the valuation may 
 still hold as a proof of interest, and it need not be 
 opened.' 
 
 It said by Mr Park^ — 'where the loss is partial, ^ Park, 103. 
 the value in the policy can be 710 guide to ascertain 
 the damage, which then necessarily becomes a sub- 
 ject of proof as much as in the case of an open 
 policy.' And hence it has been inferred, that in all 
 cases of partial loss the valuation must be opened. 
 ' The value in the policy,' it is true, ' can be no 
 guide to ascertain the damage,' — nor will the in- 
 voice be a better guide : — ' because no measure can 
 be taken from the prime-cost to ascertain the quan- 
 tity of such damage.'' But this has nothing to do J 2Bur. Rep 
 with the necessity of opening the valuation in case 
 of a partial loss : — for the above words are used by 
 Lord Mansfield, merely for the purpose of elucidat- 
 ing his position ; — that a particular average ought 
 not to be adjusted as (what is called) a salvage loss.' ' Vi^sup.
 
 4 Of Valuations. — Stevens. 
 
 Mr Serjeant Marshall is not more precise on this 
 point than Mr Park ; and in neither of these excel- 
 lent works is any reason given to support this doc- 
 trine. 
 
 k Marsiiaii, The onlj casc which occurs in the law books,^ 
 ^'^^' ought to have little or no weight. In that case, the 
 
 insurance w as, ' on ship and goods ; valued at the 
 sum insured.'^ Therefore, it would have been as 
 necessary to have proved the value, none being spe- 
 cified in the policy, if the loss had been total, as it 
 was on its being partial. Besides, the determina- 
 tion of the court on this point appeared to be govern- 
 ed by the evidence of the broker, who swore that 
 ' when the loss was partial the policy was considered 
 as an open one.' (1) 
 
 On delivering a late judgment of the Court of 
 King's Bench on this subject, the Lord Chief Justice 
 
 1 12 East's said,' ' this case (alluding to the mode of adjusting 
 Rep. 639. particular averages) is generally favourable to the 
 underwriter, as the invoice price is less in most cases 
 than the price at the port of delivery ; but the assur- 
 ed may obviate this inconvenience by making his 
 policy a valued one ; or by stipulating that in case of 
 loss, it shall be estimated according to the value of 
 
 m Vide Roc- the like goods at the port of delivery."" In the ab- 
 
 cus de Assec. /. ^ . , i i • i 
 
 Not. xxxi. — sence oj any express contract on the subject, the gen- 
 r'^n^d^^A'^'^ eral usage of the assured and underwriters supplies 
 sec. p. 3, n. 40, the dcfcct of Stipulation, and adopts the invoice 
 
 41. Stracca 
 
 (1) As to evidence in courts of law of what is or is not the 
 custom of Lloyd's, it should be taken with great circumspection; 
 more particularly, when it is known that persons of the best 
 information, and who stand the highest in regard to experience 
 and character, differ from each other on many leading points, 
 which out of the room are thought to be settled. The writer 
 takes the liberty to suggest, that it would be well if the jury in 
 such cases were not only to weigh the evidence very deliber- 
 ately, but consider the reason and justice of the case, before 
 they give a verdict expressly on a usage in Lloyd's.
 
 Of Valuations. 5 
 
 value, including premium of insurance and commis- ^^ a^^^?*=- , 
 
 or I /• I • 1 rTTi gloss, b, n. 1. 
 
 sion, as the standard value for this purpose. ihescacriade 
 Court did not express any opinion as to opening a J^^fy'^"^' "' 
 gross valuation in case of a partial loss. 
 
 On a later occasion" the same learned judo;e was « Hilary 
 
 r • ' I • • J 1 ;j • , Term, 1811. 
 
 or opinion, that in an insurance on goods valued in 
 the policy, there may be a sum included for imagi- 
 nary profit, and the valuation cannot be opened, that 
 is, — set aside, — in consequence. And his lordship 
 added, ' the valuation can only be opened where it 
 is very exorbitant, or where some proof of fraud can 
 be established.' 
 
 From the foregoing we may safely conclude that 
 the idea so prevalent in Lloyd's, that ' in case of par- 
 tial loss the valuation must be opened, and rejected 
 if it prove to be more than the invoice and premium,' 
 — is erroneous. 
 
 Valued policies on goods are conceived to have Origin of 
 originated in insurances on the produce of plantations v^i^^^ions. 
 in the colonies ; of which, as no invoice could be 
 had, (no purchase having been made,) a valuation 
 was necessarily adopted, such as would indemnify the 
 planter in case of loss. To this valuation the un- 
 derwriters agreed, and therefore when a loss took 
 place, either total or partial, there was no dispute as 
 to the amount of interest. 
 
 This practice having been found very convenient 
 among merchants and underwriters, as it served to 
 prevent trouble and litigation, led, it may be suppos- 
 ed, to the adoption of the same principle in the in- 
 surance of other kinds of merchandize, which by 
 degrees were specified in the policy, and valued at 
 per bale, hogshead, ton, &c. And though it is still 
 asserted in general terms, that ' a partial loss opens 
 the valuation,' it is well understood that the assured 
 has no other motive for being thus precise, than that
 
 Of Valuations. — Stevens. 
 
 Objections to 
 valuations. 
 
 P 2 Bur. Rep 
 nt sup. 
 
 q Stat. 19 
 Geo. II. 
 
 Specific 
 valuation. 
 
 the valuation shall not be opened in case of partial 
 loss. If it were not indeed for that purpose, he 
 might have contented himself with a gross valuation 
 only ; which would have enabled him to recover a 
 total loss bv proving the interest to be on board. 
 
 The objections against a valued policy appear 
 equally to apply to a total, as to a partial loss. It is 
 said, in Lloyd's, that when any sum is included in 
 the amount insured, without declaring it as profit, 
 and ibr which there is no interest, the insurance par- 
 takes of the nature of a wager. In reply to this ; — 
 ' it is settled,' said Lord Mansfield,'' in the celebrat- 
 ed cause of Lewis v. Rucker, ' that upon valued 
 policies the merchant need only prove some interest 
 to take them out of the act ;'' because the adverse 
 party has admitted the value, and if more proof were 
 required, the agreed valuation would signify nothing.' 
 It is also objected to a valued policy, (which includes 
 a profit,) that there are no means of determining 
 between what is a fair mercantile profit, and what 
 maybe deemed exorbitant; — but these objections 
 are not confined to a partial loss. 
 
 Some objection may reasonably be made to a gross 
 valuation, — for instance, ' on goods valued at £1000' 
 — and a satisfactory explanation should be given be- 
 fore such valuation is allowed. In the case also 
 where a parcel of manufactured goods is valued at a 
 round sum, or even if every package were valued 
 separately, and parts of the packages were damaged, 
 
 — if the goods are of different values and qualities, 
 
 — there are no means of adjusting the claim correct- 
 ly but by resorting to the invoice whereon to appor- 
 tion the loss. The only matter of consequence to be 
 attended to in that case would be, — that the under- 
 writer is not made to pay a loss on a larger sum 
 than that on whicii he has received a premium. 
 
 It is now agreed and acted upon, that where a 
 valuation is made on colonial produce, at per hogs-
 
 Of Valuations. 7 
 
 head, barrel, bale, cwt, lb, &c, — or on manufac- 
 tured goods, at per piece, ell, yard, &c, such valua- 
 tion ought not to be questioned, if (as in all cases it 
 is assumed) the underwriter had consented to it. 
 And where an insurance is made on a specified num- 
 ber of hogsheads, bales, &c, of colonial produce, 
 valued at a round sum : — as ' on 100 hogsheads of 
 sugar, valued at £2000,' — or 'on 100 bales of cot- 
 ton, valued at £1000,' there can be no doubt but 
 such valuation ought to stand. 
 
 The above relates chiefly to cases where the High and low 
 valuation includes a profit ; but when the valuation ^'^^"^^^°"- 
 is smaller than the amount of the invoice covered, 
 which if there be much difference, must generally 
 have originated in mistake, no precise rules are laid 
 down, whether it shall be set aside or be allowed to 
 stand. But in both cases of valuation, the motives 
 of the assured for increasing or decreasing the amount 
 should be inquired into, and those liberal rules which 
 govern in all other commercial dealings should be 
 acted upon in cases of this nature. 
 
 If goods are fraudulently overvalued in a policy of Fraudulent 
 insurance with intent to defraud the underwriters, ^^^^^^^lo"- 
 the contract is entirely vitiated, and the assured can- 
 not recover even for the value actually on board. "■ "^ 3 Camp. 
 Where however good faith is used between the par- '^^' 
 ties, it is well known that the courts of law always 
 allow the most liberal construction to be put on the 
 words made use of by the assured or the broker ; 
 and accordingly, where there was a policy of insur- 
 ance on goods by ' ship or ships,' to be thereafter 
 declared ; — it was held that if the broker by mistake 
 make a written declaration upon goods by a wrong 
 ship to which the underwriters have put their in- 
 itials ; he. may afterwards in compliance with the 
 orders of the assured, declare upon goods by another 
 ship, without the assent of the underwriters and 
 without a fresh stamp.' Rep/iS!''
 
 Of Valuations. — Stevens. 
 
 The under- 
 writers may 
 inquire 
 Avhetlier in- 
 terest declared 
 is that iiHcnd- 
 cd to have 
 been covered. 
 
 It is scarcely necessary to say, that the consignee 
 or the merchant may at all times declare, on the 
 policy, the interest insured without asking leave of 
 the underwriters, and even without previously hav- 
 ing liberty on the policy to do so ; the underwriters 
 may however always investigate whether the goods 
 so declared were those originally intended to be in- 
 sured. The fairest mode is, — to declare the inter- 
 est as soon as the merchant is himself acquainted 
 with it, and get the underwriters' initials to the 
 same : when the risk is terminated no declaration of 
 interest can be made. — For on an open policy ' on 
 goods, to be hereafter declared and valued,' it was 
 held by Lord Ellenborough, — that ' the declaration 
 of interest to be available must be communicated to 
 the underwriters, or some one on their behalf, before 
 intelligence has been received of the loss. But the 
 declaration is not a condition precedent ; and if no 
 one be made, the policy is then open instead of 
 valued, and upon proof of interest the assured will 
 be entitled to recover.^ 
 
 As it is advisable that every thing should be done 
 in the first instance to prevent future discussion, it is 
 recommended, that in insurances ' on goods' generally, 
 from foreign countries, when no invoice has come to 
 hand, and the merchant has no means of making a 
 declaration on the policy, — the coin, or money of 
 account in which it is customary to make out the 
 invoice, be assimilated in value with our money." 
 And if the merchant, acting as agent, means to in- 
 sure the charges of recovery in case of loss, it should 
 be so stated in the policy. 
 
 Article 2. On Policies on Ships. 
 
 Value of the The value of a ship is said to be, what she is 
 
 snip in an i i i i 
 
 open policy, worth at the port \\'here the voyage commences, m- 
 cluding all her stores, outfit, and money advanced for 
 
 t 3 Camp. 
 Rep. 150. 
 Rate of 
 foreign coin. 
 
 u 1 Magens, 
 3G. 
 
 Charges of 
 recovery.
 
 Of Valuation. 9 
 
 seamen's wages ;''' the whole covered with the pre- '«' Marshall, 
 mium of insurance,'' commission for effecting the *'x lc Guidon 
 same, (if incurred,) and charges of recovery in case c. 2, art 9. 
 of loss, when required. 
 
 It sometimes happens, particularly with ships in Different 
 the East India trade, that they are valued at differ- SJe''ntp'l)iides. 
 ent sums in different policies ; in such a case, it has 
 been held, that the underwriters on one policy have 
 nothing to do with the other ; and in consequence, 
 that the assured is not to be prevented by his valua- 
 tions, from recovering his full indemnity. The case 
 was this : — a ship was valued in a policy (No. 1) 
 at £8000, and £6000 was insured and recovered on 
 it ; she was also insured on another policy (No. 2) 
 and valued at £6000, 07i which £600 was insured. 
 Lord Ellenborough held that this latter sum was re- 
 coverable, although the owner had already received 
 from another quarter the sum at which the ship was 
 valued in that policy (No. 2). With the other policy 
 (No. 1) he held that the underwriters on the policy 
 No. 2 had no concern. ' The assured,' he said, 
 ' may recover on both, if by so doing he receives no 
 more than a complete indemnity.^ -^^^ ^^J^^' 
 
 It is of some consequence to bear in mind, that Effect of high 
 the value of the ship may in case of loss, make a o'" low vaiua- 
 
 •iTrr • 1 !• • '-'O'^ 01 ship in 
 
 very material dmerence m the ciann, e. g. — ni a case of loss 
 salvage loss, suppose the actual value of the ship be ^yf g°[ ^^'g^' 
 £2000, and she be insured at £3000, — the salvage 
 being £1500, the loss is £1500, or 50 per cent. ; 
 whereas, if she had been insured at £2000, (the ac- 
 tual value,) the loss would have been only £500 or 
 25 per cent. But in case of average loss, it would 
 be directly the reverse, e. g. — if £3000 be insured 
 on a ship worth only £2000, — the amount of the 
 average loss is £1500, and the underwriters pay only 
 50 per cent. ; — whereas, if only £2000, (the actual 
 value) were insured — the underwriters would pay
 
 10 Of Valuation. — Stevens. 
 
 £75 per cent. These remarks are more particularly 
 a])plicablc to an insurance on an open policy, — be- 
 cause in such a case before the loss is settled, inquiry 
 may be very })roperly made into the actual value of 
 the ship at the time the insurance was effected, (a) 
 
 Article 3. On Policies on Freight. 
 
 On an open policy on freight, the interest is, ac- 
 cording to the practice of Lloyd's, — the amount of 
 the manifest, or freight list, covered with the pre- 
 mium, &c. (b) 
 
 It is said by some, that the interest in freight 
 ought to be that sum, and no more, which the owner 
 calculates on receiving in case of the safe arrival of 
 the ship ; because in case the ship is lost, that is all 
 he loses. But the practice is as before stated, and 
 it is probable it will remain so unless the law shall 
 decide otherwise. 
 
 In the case of an open policy, the assured can 
 only recover the amount of what is actually on board 
 
 («) Low valuation operates favourably to the underwriters 
 in case of total or partial loss with salvage; and consequently 
 unfavourably to the assured ; and high valuation the contrary 
 way in respect to both parties. But in respect to disburse- 
 ments for repairs or otherwise, unless the valuation be open- 
 ed, according to the explanation hereafter given of what is 
 meant by opening the valuation, a low valuation operates 
 against the underwriters, and in favour of the assured, and it 
 may operate in the same way if the valuation is opened in the 
 sense hereafter explained under Mr Benecke's chapter on this 
 subject. The reason is that however high the subject may be 
 valued, the underwriter generally has to pay no more for 
 small expenditures than if the valuation were precisely the 
 value the subject would have in an open policy ; so that he 
 obtains a higher premium for the same risks of such losses. 
 But it does not appear how the distinction of high and low 
 valuation, or value, can be applied by Mr Stevens, as it seems 
 to be in the above paragraph, to open policies, in which the 
 rule as to value is always the same. — Ed. 
 
 {b) The rule is the same in the United States. — En.
 
 Of Valuation. 11 
 
 at the time of the loss, — and it is the same even on 
 a valued policy, unless a full cargo be provided, or 
 there be a contract either written or parole to supply 
 one/ But on a valued policy on a chartered ship, ^ 3 Camp. 
 and where the cargo is ready to be shipped, — there ^'^' 
 is no doubt that the assured is entitled to recover for 
 
 a total loss." " l Maule & 
 
 As in goods, so in regard to the ship and freight — 313!^^"^ ^^' 
 if the charges of recovery in case of loss are meant 
 to be insured, they must, if the policy be an open 
 one, be so declared. (1) 
 
 (1) These charges are 2^ per cent when the merchant, as 
 agent, effects the insurance through a broker: — e. g. ^ per 
 cent to the broker for recovering the loss, and 2 per cent to 
 the merchant for his commission, thus : — 
 Amount of loss recovered of the underwriters .£500 
 
 Deduct brokerage, h per cent. 2 : 10 
 
 497: 10 
 
 Deduct commission (on amount received ) O' 1Q 
 
 from the broker) 2 per cent \ 
 
 ^487: 11
 
 CHAPTER II. — Of Valuation. 
 
 [Benecke. Ch. 4.] 
 
 Definition. 
 
 Different 
 values of tlie 
 same subject. 
 
 That a perfect indemnity in marine insmances 
 cannot be obtained, unless the smn insured be equal 
 to the real interest of the assured, is clear in itself; 
 but it rcquiies accurate investigation to ascertain, 
 under all circumstances, the real interest or value to 
 be insured. This investioation will be the object ot 
 the present chapter : and as the value of the subject 
 to be insured is either left open in the policy to be 
 ascertained afterwards, in which case the policy is 
 called an open policy ; or is fixed, so as to obviate the 
 necessity of proving it after a loss, in which case it is 
 called a valued policy ; («) we shall have to consider 
 the nature and peculiarity of open as well as of valued 
 policies, and the mode of determining the value in 
 the former, agreeably to law and practice. 
 
 The idea of Vahie is in itself uncertain. Not to 
 mention the imaginary value which is sometimes 
 attributed to a thing through predilection of its pos- 
 sessor — the value of articles of commerce is subject 
 to variations, owing to place, time and circumstances; 
 and may at the same place, but still more at different 
 places, be often considerably above or below the 
 prime cost. Of goods which are sent abroad, the 
 cost, though not always the value, increases by ship- 
 
 (a) A valued policy does not dispense with proof tliat the 
 assured had an interest at risk, hut he must show how inuch 
 of the suhject, or how many of the suhjects, insured, were put 
 at risk, . If a part of the things valued are w^ithdrawu from 
 the risks, tlien the valuation may apply proportionahly to those 
 remaining at risk within the policy. 2 Phil. Ins. c. 14, s. 1, 
 No. 4. A valuation of a cargo has been held to be such of its 
 proceeds. Id. c 14, s. 1, No. 9. — Ed.
 
 Of Valuation. 18 
 
 ping expenses, interest, freight and charges at tlie 
 place of deliver J. (a) 
 
 With respect to insurance on goods, we shall have Value of gooda 
 to consider only their value at the place of departure, "^^^^^^ ^hl^tf 
 and the sum which is to be added for charges, so as ure 
 to fix the value on board, this being the amount which 
 is to be insured in order to place the proprietor in the 
 same situation with respect to the goods, in which 
 he was before the adventure took place. (6) 
 
 The value of goods at the place of their departure, Current 
 
 ... articles 
 
 is the price for which they can be sold at that place, or good's hav- 
 This definition holds ffood for every current article. '"^' ^ market 
 
 a J value. 
 
 In fixing the value, therefore, the current price, and 
 not the prime cost of the article is to be attended to. 
 If the former exceed the latter, the higher sum is to 
 
 (a) The value of the same goods may be different at the same 
 time in respect to general and particular average, since their 
 value in respect to pai'ticular average, depends, as between the 
 parties to a policy, on their stipulations, whereas in a general 
 average it is determined by an invariable rule. Another rea- 
 son of difference is that the amount of insurable interest in an 
 open policy is computed in reference to the commencement 
 of the risk, whereas in general average the amount of the 
 several interests is estimated in reference to the time and 
 place of adjustment, or when and where it ought to be made. 
 See 1 Phil. Ins. 307-309, and cases there cited. — Ed. 
 
 {b) The market value at the port of departure as distin- 
 guished from the cost to the assured, is the amount of insurable 
 interest in goods insui'ed in an ojoen policy. 2 Phil. Ins. c. 14, 
 s. 2, No. 2. — Ed. 
 
 The value of imported goods depends partly on the duty 
 paid on importation, and wlien the goods are exported again 
 with a right of drawback of the whole or a part of the duty 
 paid on their importation, the question arises whether their 
 value in an open policy is to be computed by deducting the 
 drawback from the current market value, for this difference is in 
 fact the amount which the owner will lose in case of the loss 
 of the goods. It has, however, been held in New York that 
 this deduction is not to be made, on the ground that the draw- 
 back, in the United States, is imcertain, since the re-exporter 
 must give bonds as to their being landed at a foreign port, 
 which bonds may not be complied with. 1 Phil. Ins. 324. — Ed.
 
 14 
 
 Of Valuation. — Benecke. 
 
 Goods that 
 have no mar- 
 ket price at 
 the place of 
 departure. 
 
 a [See 1 Phil. 
 Ins. 32-^.] 
 Shipping 
 charges and 
 premium, 
 are to be look- 
 ed upon as 
 
 be insured, because the proprietor, having it in his 
 power to sell at that price on the spot, would lose the 
 profit which he already had in his hands, if the prime 
 cost only were paid to him in case of loss. If, on the 
 contrary, the price of an article has fallen after it 
 was bought, the lower value ought to be insured, 
 because the proprietor cannot lose more, if his goods 
 perish, than this reduced value. To say, that the goods 
 ought to be insured for their prime cost, because the 
 proprietor might keep them until they had again 
 reached that price, would be false reasoning ; for 
 those goods can no longer be an object of specula- 
 tion at the place of departure, after they have been 
 shipped to another place. If they promise a higher 
 price at the place of their destination, the sum which 
 they are likely to yield above the current price and 
 the charges, is an expected profit, which the pro- 
 prietor should rather insure as such. If no advance 
 is to be expected, it is manifest that, by insuring 
 more than the current value, he would pay part of 
 the premium to no purpose. 
 
 In such cases, therefore, the assured must be at 
 liberty to make an invoice, according to the current 
 price of his goods, and either to refer to it in the 
 policy, or to value his goods accordingly. 
 
 Goods which are either of the proprietor's own 
 manufacture, or have been brought from distant 
 places to the port of shipping, where there is no 
 regular sale for them, merely for the purpose of be- 
 ing forwarded from thence, must not be valued ac- 
 cording to the price for which they might be sold at 
 the place of loading, but their value at the place 
 from whence they came, together with the expenses, 
 must be the basis of the value to be insured. («) 
 
 The cost of an article exported is necessarily in- 
 creased by the shipping charges, and premium of in- 
 surance. These expenses may be looked upon as a
 
 Of Valuation. 15 
 
 part of the prime cost, because they must necessari- p"^ "^ ^'^f 
 
 T 1 • II 11 1 r 1 prime cost. 
 
 \y be nicurred, whatever may be the result or the 
 adventure. Even the interest of the capital, up to 
 the probable termination of the adventure, should be 
 taken into the calculation. («) 
 
 But not the premium only, but the premium upon Premium on 
 premiums, down to the total extinction of the risk, Premium. 
 also contribute to increase the amount. If goods, 
 for instance, which with shipping charges, cost 
 £1,000, are insured at £20 per cent, the proprietor 
 by insuring £1,200 is not fully covered : for £1,200 
 at £20 per cent cost £240 premium ; the whole 
 amount, therefore, would- be £1,240, for which, in 
 case of total loss he would only receive £1,200. 
 He ought, therefore, to insure also those £40 and 
 the premium for them, and so on to the extinction 
 of the risk. 
 
 The calculation of premium on premium is ren- 
 dered very easy by being considered under the fol- 
 lowing view : — The premium being contained in 
 the sum which the underwriter pays, the assured 
 for his indemnification receives only that part of it 
 which exceeds the premium. Thus if the assured, 
 after having paid £20 for premium, receives £100, 
 he obtains only £80 for prime cost and shipping 
 charges. In order, therefore, to cover the premium 
 fully, it will be necessary to insure £100 for every 
 £100 less the premium. Or, in other words : to find 
 the sum to be insured, multiply the amount, compos- 
 ed of the cost and charges at the place of departure, 
 by 100, and divide the produce by 100 less the 
 number of per cents of the premium. 
 
 To insure, for instance, £5,000 with premium on 
 premium, at 7 guineas per cent the calculation will 
 be thus : 
 
 (a) The provisions arc incliKlf<l in tlie amount of insurable 
 interest in an open policy. 2 Phil. Ins. ch. 14, s. 2, No. 1. — Ed.
 
 16 
 
 Commission. 
 
 Of Valuation. — Benecke. 
 
 923-3 : 100 = 5000 : 5396/, 135. 
 
 The premium for this latter sum at 7 guineas 
 
 per cent, is £396 
 
 which added to the capital of 5000 
 
 13 
 
 
 gives the amount of goods and premium £5396 13 
 
 If a commission is to be paid to an agent for effect- 
 ing the insurance, this must also be added to the 
 amount ; and as the commission is charged, not on the 
 original value, but on the sum insured, it produces the 
 same effect as if the premium were so much higher. 
 If the premium, for instance, is 10 per cent, and the 
 commission for effecting the insurance h per cent, it 
 will be the same, with respect to the sum to be in- 
 sured, as if the premium were 10^ per cent. Under 
 this supposition, therefore, if the amount on board is 
 1000/, the sum to be insured will be 
 
 89i : 100= 1000 : 1117, Qs, M. 
 
 Again, if to the original value of £1000 
 we add premium on 1117/, 65, 4^, at 
 
 10 per cent 111 14 8 
 
 Commission on the same sum at 5 per cent 5 11 8 
 
 the whole will amount to 
 
 £1117 6 4 
 
 Charges of 
 recovery. 
 
 The usual charges of recovery, when the insurance 
 has been effected through an agent w ho employed a 
 broker, are h per cent brokerage, and 2 per cent 
 commission. 
 
 Thus, if the amount to be recovered is £10,000 
 the brokerage will be i per cent 50 
 
 9,950 
 
 the commission 2 per cent on the latter sum 1 99 
 
 £9,751
 
 Of Valuation. 17 
 
 In order, therefore, to include the charges of re- 
 covery, tVA^ of the sum insured must be put equal to 
 the value of the goods, including all charges, interest 
 (if required) and premium, which gives the following 
 rule: from 9751 deduct the premium for 10,000 (i. 
 e. 700, if the premium is 7 per cent, 1,200 if it is 
 12 per cent, &c,) and by the rest divide the original 
 capital multiplied by 10,000. 
 
 To elucidate this rule by an example, let the 
 amount of certain goods, including shipping charges, 
 be in ready money £1,520 
 
 Interest for 6 months, (supposing this to be 
 
 the time which will probably elapse before 
 
 the loss can be recovered) at 5 per cent 38 
 
 £1,558 
 the premium 14 per cent, and commission, &c, for 
 effecting the insurance 1 per cent ; then to find the 
 sum to be insured, from 9,751 
 
 deduct 1,500 
 
 8,251 
 by this latter sum divide 15,580,000 (10,000 times 
 the original capital) and the quotient 1,888/, 55, will 
 be the sum sought. 
 
 If this sum is insured, the whole will be covered ; 
 for if to the original amount of £1,558 
 
 we add the premium of 14 per cent > o/?^ n i 
 
 on 1,888/, 55 ) 
 
 Commission, &c, 1 per cent 18 17 8 
 
 the assured will pay in all £1,841 4 9 
 
 If from the sum insured £1,888 5 
 
 we deduct h per cent 9 8 10 
 
 3 
 
 £1,878 16 2
 
 18 Of Valuation. — Benecke. 
 
 and from this sum 2 per cent 37 1 1 6 
 
 the net amomit will also be £1,841 4 9 (1) 
 
 tions 
 
 Other deduc- Thc Underwriters in England formerly deducted 2 
 per cent from all claims, and h per cent for ready 
 money. A similar custom prevailed in Hamburgh, 
 but was abolished many years ago. In some com- 
 mercial places it is still in practice : the Prussian law 
 (^ 2282), for instance, allows the underwriter to de- 
 duct 2 per cent. When insurances are made at such 
 places, it will only be necessary to calculate the re- 
 duction in the same manner as has been shown with 
 respect to the charges of recovery. If the under- 
 writers deduct, for instance, 2 per cent, and the 
 charges of recovery are the same as above, then, from 
 the insured capital of £10,000 
 
 the underwriters deduct 2 per cent 200 
 
 9,800 
 brokerage i per cent on 10,000/ 50 
 
 9,750 
 commission 2 per cent ' 195 
 
 £9,555 
 
 therefore tothht of the sum insured, are to be put equal 
 to the original capital, including shipping charges, 
 
 (1) This is the exact mode of calculating ; but for all practi- 
 cal purposes it will be sufficient to add 2^ to the premium and 
 commission, to subtract this from 100, and to divide the capi- 
 tal multiplied by 100 by the remainder ; for supposing the 
 charges of recovery to be exactly 2^ per cent, the assured in 
 the above example will receive in every hundred paid by the 
 underwriter, 100 less 15, and 2^, or 82^, as an indemnity for 
 his capital, consequently he must insure 100 for every 82^, 
 and the calculation will be : 
 
 82i : 100 = 1558 : 1888?, 9s, Sd.
 
 Of Valuation. , 19 
 
 premium, &c. If capital, premium, &c, are as above, 
 
 the calculation will stand thus : £9,555 
 
 less 1,500 
 
 8,055 : 15,580,000 = 1934/, 45, 1^. (a). 
 
 When the premium is high and the adventure of interest on 
 long duration, or the premium is paid or drawn for '^ premium. 
 immediately, as is sometimes the case, it will not be 
 superfluous to take also the interest on the premium 
 into the calculation. 
 
 To comprise all the different cases in one, and to 
 show the necessity of an exact calculation, let us sup- 
 pose 10,000/ to be vested in a mercantile adventure, 
 the probable duration of which is 1 8 months ; let the 
 insurance be eflected at a place where the under- 
 writers deduct 2 per cent, and that premium be paid 
 immediately; and let the commission, brokerage, &c, 
 for effecting the insurance be 1 per cent, the charges 
 of recovery i per cent and 2 per cent, and the an- 
 nual interests 5 per cent. — If for capital and simple 
 premium 12,000/ be insured, the merchant will re- 
 cover, in case of a total loss £12,000 
 less 2 per cent 240 
 
 11,760 
 less 2i per cent 294 
 
 £11,466 
 
 (a) If the policy provide for an abatement of one, or 
 two, or any other rate per cent on payment of losses, 
 then in computing the interest in an open policy, a corres- 
 ponding rate per cent is added to the cost and charges, so that 
 the assured shall receive back the actual amount put at risk 
 at the commencement of the adventure, in case of total loss, 
 if he has insured so much in the pohcy. 1 Phil. Ins. 320, 
 321. This reservation has recently been struck out of the 
 Boston policies. — Ed.
 
 20 Of Valuation. — Benecke. 
 
 But ho really laid out, the capital of £10,000 
 
 premium on 12,000/ at 20 per cent 2,400 
 
 commission at 1 per cent 120 
 
 12,520 
 
 interest for the first year at 5 per cent 626 
 
 13,146 
 
 interest for the ensuing 6 months 328 13 
 
 13,474 13 
 
 from which deducting the above 11,466 
 
 he will lose 2,008 13 
 
 If, on the contrary, he insures £14,753 10 2 
 he will recover after a deduction of 2 
 
 per cent 295 1 4 
 
 14,458 8 10 
 
 and of 2i per cent 361 9 4 
 
 £14,096 19 6 
 This is a full indemnification ; for he actually paid : 
 the capital £10,000 
 1 per cent commission and bro- > i A7 1 R 
 kerage on 14,753/, IO5, 2d ] ^^' ^ ^ 
 20 per cent premium on the ) qq^'o 14 
 same sum S ' 
 
 13,098 4 8 
 interest for the first year at 5 > fi^A ift a 
 per cent 3 
 
 13,753 3 
 
 interest for the following 6 > 0^0 -^^ n 
 
 months 
 
 £14,096 19 6(a) 
 (o) It seems to be the doctrine in England, that in order to
 
 Of Valuation. 21 
 
 To say, that, by insuring so large a sum, the 
 expenses will be too much increased, would be false 
 reasoning. A speculation which cannot bear the 
 whole premium should not be made at all. Interest 
 and premium are to be paid as well as the capital 
 itself, and ought for that reason to be protected by 
 insurance, A well-informed merchant, therefore, 
 will add the premium for the same to the price of 
 his merchandise, even if he does not pay interest, in 
 the same manner as he adds premium to the capital, 
 when he runs the risk himself. 
 
 As freight and expenses at the port of delivery. Sums to be 
 are payable after arrival, the premium only is to be freight and 
 added to their amount, in the same manner as has expenses. 
 been shown with respect to goods ; and when deduc- 
 tions, charges of recovery, &c, are to be paid, the 
 calculation will be altered accordingly. 
 
 Profit expected is to be insured without premium, For profit 
 because the premium must be defrayed out of the c"innuss"ion. 
 profit itself, whether the goods arrive or be lost. If 
 1,000/ profit be expected, and 100/ premium paid to 
 secure it, the profit is reduced to 900/. This sum is 
 cleared if the goods on their arrival yield a profit of 
 1,000/. If the premium were included in the insur- 
 ance, the assured would in case of a total loss, have 
 a net profit of 1000/ instead of 900/, and would con- 
 sequently gain 100/ by the misfortune. The same 
 remark evidently applies to commission, (a) 
 
 show an interest in expected profits on goods, the state of the 
 markets must be referred to, and the owner must prove that 
 there would have been a profit. Eyre v. Glover, 16 East, 
 221.— Ed. 
 
 (a) Profits are most frequently insured in a valued policy. 
 It has been held in one case in New York, Mumford 
 V. Hallett, 1 Johns. 439, cited 1 Phil. Ins. 319, that a pohcy 
 in the usual form of an open one, on expected profits, is in 
 fact a valuation of the profits at the amount insured. But this 
 doctrine can hardly be considered as firmly established. As 
 the contract can be construed and applied without supposing
 
 22 Of Valuation. — Benecke. 
 
 Having thus stated the rules by which valuations 
 are in general to be made, I shall now point out the 
 different modiiications of the same, occasioned by 
 particular circumstances. 
 Valuation of In valuiiiij: goods expected as returns from remote 
 fcmoto cXn- couutrics, wlicrc no regular course of exchange with 
 tries with European places exists, that sum is to be looked upon 
 is no rate^of ^s tiic priuic cost of the goods, which the proprietor 
 exchange. would, after deducting all charges, have received, if 
 coin or bullion instead of goods had been remitted. 
 For as those charges cannot be avoided, if the money 
 be sent to Europe, they necessarily enter into a cal- 
 culation by which the value of foreign money is to 
 be reduced to European. This will more fully ap- 
 pear by an example, 
 a I. p. 41. Magens says'" that, at the time when he lived in 
 
 Cadiz, the duty, freight, and charges upon dollars 
 from Vera Cruz to Cadiz, amounted to 14i per cent, 
 consequently 1000 dollars 
 
 less 14i per cent 142 
 
 leave 858 
 
 which sum being insured at 6 per cent 50^ 
 
 the net proceeds at Cadiz will be 806 i 
 
 The same sum ought to be considered as the prime 
 cost of goods bought at that time at Vera Cruz for 
 1000 dollars, to which the duty, shipping, charges, 
 &c, are to be added. Supposing these charges to 
 
 any such stipulation, the grounds for adopting it appear to 
 admit of some doubt. 
 
 It has been held by the Supreme Court of the United States, 
 that the assured, in order to recover on a valued policy on 
 profits, is not required to prove that there would have been a 
 profit had the adventure not been interrupted. Patapsco Ins. 
 Co. V. Coulter, 3 Pet. Sup. C. R. 222. 2 Phil. Ins. c. 14, <S 1, 
 No. 15. — Ed. ^
 
 Of Valuation. 23 
 
 amount to 63 i dollars, and the insurance to be effect- 
 ed at 10 per cent, subject to no deductions, the value 
 to be insured is 966f dollars. A policy for this sum 
 covers exactly the prime cost, as the assured, in case 
 of a total loss, wdll receive the same sum which he 
 would have received, if 1000 dollars had been ship- 
 ped and arrived safe. — If larger proceeds at the port 
 of delivery are to be expected, it will be better to 
 insure the surplus as expected profit, than to add it 
 to the prime cost of the goods. 
 
 When a regular course of exchange exists between Valuation 
 the remote country and Europe, so that remittances whore there 
 
 J A ' IS n, course oi 
 
 in bills can be had without sea risk, the valuation of exchange. 
 goods ought to be made as from one European place 
 to another, and the greater distance can have no in- 
 fluence. Clear as this is, yet this rule has frequently 
 been departed from. Emerigon says,'' that it w^as ^ T. i, ch. 9, 
 usual to value goods expected from the French islands ^^'^^' ' 
 at so many French livres as they cost livres of the 
 colonies, although the value of the latter is only two- 
 thirds of the forme •. This practice was prohibited 
 by the Declaration de 1779, and also by the Code de 
 Commerce, art. 338. — And Magens" informs us, that « t. i, p. 45. 
 the French colonial livre was frequently valued in 
 London at lid; the consequences of which abuse 
 were severely felt in this country, and were amongst 
 the principal reasons which induced Government to 
 prohibit all insurances upon French property during 
 the war. 
 
 The amount of goods that have not been bought for valuation of 
 money, but bartered for other goods, cannot be well g°°^^ obtain- 
 estimated in any other way than by adding to the 
 original cost of the goods given in exchange, the 
 charges incurred upon them, and the premium for the 
 voyage homeward. The French law ordains, that 
 upon insurances on homeward bound cargoes from 
 countries where commerce is carried on only by bar- 
 ter, the value of the returns is to be estimated equal
 
 24 
 
 Of Valuation. — B enecke . 
 
 d Ord. de la 
 Marino, Tit. 
 Ass. art. C)5 
 Code do 
 Coinmorcc, 
 art. :M0. 
 
 If tlie capital 
 lias increased 
 by barter or 
 profit. 
 
 e Comment, 
 sur rOrd. Tit. 
 Ass. art. 15. 
 
 Charges on 
 the outward- 
 bound voyage, 
 incurred on 
 account of the 
 homeward- 
 bound cargo, 
 constitute 
 part of the 
 value of the 
 latter. 
 
 to the goods, given in exchange, adding the charges 
 of transport.'" It would, however, be wrong not to 
 allo\\' the premium i'or the homeward cargo to be ad- 
 ded to the value, as it must be paid bj the proprietor 
 over and above the amount of" the outward bound 
 cargo. It would be different if the voyage out and 
 home were insured in one premium : for in that case 
 no additional expense would be incurred on the return 
 cargo. 
 
 An insurance for the value of the goods sent out, 
 would, however, afford no perfect indemnity, if, by 
 commerce or barter during the voyage, a profit had 
 been realized. The proprietor, therefore, ought to 
 be allowed to insure also the increase of value occa- 
 sioned by profit. Nor can any doubt or difficulty 
 exist on this subject, provided the value of the goods 
 bought or bartered can be ascertained in money. 
 Valin, a French author of great repute, says," ' If the 
 proprietor of a cargo bound for the coast of Guinea, 
 and from thence to St Domingo, be informed early 
 enough of the transactions on the coast of Guinea, 
 to be able to estimate the profit arisen from the 
 same, nothing can prevent his insuring the augmen- 
 tation of the first value of the cargo as a new capital ; 
 because this is a profit actually realized, (and not 
 depending upon future events.) 
 
 Charges on the outward-bound voyage, which are 
 incurred merely for the purpose of the homeward- 
 bound cargo, ought to be considered as part of the 
 prime cost of the latter. If a ship is sent out in bal- 
 last, to fetch goods from a remote place, and it is 
 agreed that part of the freight shall be paid upon the 
 ship's arrival at that place, the proprietor must be 
 allowed to add that part of the freight to the prime 
 cost of those goods, because there is no better way 
 of securing those expenses. But as the homeward- 
 bound cargo may possibly be of less value than was 
 expected, in which case it would be over-insured, if
 
 Of Valuation. 25 
 
 all the charges of the outward-bound voyage were 
 added ; the safest way will be to insure for every 
 100/ of the prime cost of the goods that really are 
 shipped, so many pounds more, as those charges are 
 in proportion to the whole expected cargo. Let the 
 charges be 1000/ and the prime cost of the expected 
 cargo 10,000/, then 10 per cent more are to be in- 
 sured for charges. Now, if the homeward-bound 
 cargo were, through some unlooked for circumstance, 
 to amount only to 2,500/ ; that circumstance in itself 
 would be a loss to the proprietor, because one-fourth 
 of the goods could not bear the expenses which were 
 to have been borne by the whole, and it would be 
 wrong to increase that loss by unnecessary premi- 
 ums. — In many instances more favourable stipula- 
 tions may be made, which of course must depend 
 upon the nature of each case. The best way, under 
 all circumstances of this kind, would undoubtedly be, 
 to value the goods at ' their gross value at the place 
 of delivery.' 
 
 It happens sometimes, though not often in the usual valuation of 
 course of business, that goods are insured in one f^one pXcy'^ 
 policy from the place of departure to another place, to one place, 
 and from thence in other ships to the ultimate place thence"i^ 
 of delivery. The blockade of the Elbe frequently other ships to 
 
 •^ . r 1 • 1 • 1 1 J another place. 
 
 gave rise to insurances or this kind, when goods were 
 sent to To7ining, and from thence to Hamburgh in 
 other ships, which risk was insured in the same policy. 
 If in such cases the goods are valued in the usual 
 manner, at their prime cost, with shipping charges 
 and premium, this value will be exact only for the 
 first part of the voyage : because the freight and 
 charges, payable at the first port, enhance the value 
 of the goods in the further course of the voyage. 
 100 Hogsheads of wine, for instance, from Bordeaux 
 to Tonning, which cost 10,000 Mks. Bco., including 
 shipping charges and premium, and for which 1000 
 Mks. Bco. freight and charges are paid at Tonning, 
 4
 
 26 Of Valuation. — Benecke. 
 
 will be worth 11,000 Mks. Bco. on their way from 
 Tonning to Hamburgh. If they have been valued 
 for the whole voyage at 10,000 Mks. Bco., and 50 
 of them are lost on their way from Tonning to 
 Hamburgh, the underwriter will pay only 5,000 
 Mks. Bco., though they cost 5,500. — This case is 
 of the nature of a loss happening during the trans- 
 portation of goods from on board the ship in which 
 they arrived to their landing place. 
 
 To be fully protected in such a case, it will be 
 necessary, either to make two distinct valuations, viz. 
 1 0,000 from Bordeaux to Tonning, and 1 1 ,000 from 
 Tonning to Hamburgh, or separately to insure freight 
 and charges payable at the place of discharge. If 
 the latter mode be adopted, both places ought to be 
 named, and the nature of the voyage clearly explain- 
 ed, since in this case the underwriter on the freight 
 runs a greater risk of a total loss, than upon insur- 
 ances to one place only. In the laiter, a total loss 
 on the freight after the arrival of the vessel can only 
 happen by the loss of lighters in which the goods 
 were to have been landed, (a) 
 
 go^ods when When there is a stipulation in the policy, that part 
 
 part of the of the premium shall be returned if the ship sail on 
 
 be returned or before a Certain day, or if the ship sail with convoy, 
 
 upon certain ^^ ^^^ arrivc, the valuation of the goods must in- 
 
 contincren- v -j -j ^ 
 
 cies. 
 
 (a) In case of insurance to successive ports, of discharge 
 and loading, in an open policy, the amount of interest is to be 
 computed at the commencement of each successive risk. In- 
 surance to the amount of twelve thousand dollars being made 
 on a cargo worth sixteen thousand dollars from Alexandria 
 to St Thomas's and two other ports, by a sale of a part of 
 the cargo at St Thomas's, the value at risk was reduced to 
 twelve thousand dollars, and subsequently a total loss occurred 
 at Cape Haytien. It was held, that the underwriters were 
 liable for the whole amount underwritten ; and not merely 
 for twelve sixteenths of it. Col. Ins. Co. v. Catlett, 12 Wheat. 
 383. 2 Phil. Ins. c. 14, § 2, No. 7.— Ed.
 
 Of Valuation. 27 
 
 elude the entire premium, as otherwise the assured 
 would not be fully protected. — Suppose the invoice 
 amount of goods to be 1 ,000/, the premium 20/ per 
 cent, and 10/ per cent to be returned ; the assured 
 will not be fully indemnified in case of a total loss, 
 unless he insure 1,250/. — But then, if the goods 
 arrive deteriorated, the premium must not be return- 
 ed on that amount which the underwriter pays on 
 account of the damage, because it is already contain- 
 ed in that amount, and he would otherwise pay it 
 twice. The goods in our example will cost upon 
 their safe arrival : — 
 
 Prime cost £1,000 
 
 Premium 250 
 
 1,250 
 less 10/ per cent returned 125 
 
 £1,125 
 
 If they arrive deteriorated 50 per cent, the assured 
 will receive from the underwriter, on 
 1250/, 50 per cent £625 
 
 returned premium on 625/, 10/ per cent 62 10 
 
 to which half the amount of the 1125/ 
 being added 
 
 687 10 
 562 10 
 
 £1,250 
 the situation of the assured will be as it would have 
 been in the case of a safe arrival. — If, on the con- 
 trary, the underwriter did pay, on 
 account of the damage £625 
 
 and 10 per cent on the whole of 1250/ 125 
 
 750
 
 28 Of Valuation. — Benecke. 
 
 to vvliicli arc added as above 562 10 
 
 the assured would receive iu all £1,312 10 
 
 and thus gain 62/, 10.9, by the accident. (1) 
 
 On tiie vaiua- As to the Valuation of ships and freight, those two 
 tionofship subjects are so nearly connected as to render the in- 
 
 aml Iroight. •' . J 
 
 surance ot the one dependent upon that ol the other, 
 so that either the ship, including charges of outfit, and 
 the net freight, should be insured ; or the ship with- 
 out those charges, and the gross freight ; or, which 
 is still preferable, the ship and freight together in one 
 
 (1) In the case of Simond v. Boy dell (Doug. 255), where 
 sugars were insured, vahied at 20/ per hogshead, at 18 guineas 
 per cent, to return Ql per cent if the ship sailed with convoy 
 and arrived, and the sugars arrived considerably damaged, the 
 Court of King's Bench determined that 8/ per cent should be 
 returned upon the whole value in the policy. Lord Mansfield 
 observed, that the word ' arrives^ relates only to the ship, 
 which is certainly correct. But his Lordship did not notice 
 • that the condition of returning the stipulated part of the pre- 
 
 mium was satisfied, as to the damaged part, by the underwriters 
 paying the percentage of the deterioration upon the value in 
 the policy, and that consequently it remained only to be ful- 
 filled as to the difference between the value in the policy and 
 the deterioration. — This decision, being founded merely upon 
 an arithmetical mistake, ought not, I think, to operate against 
 the better mode of calculating. 
 
 In a later case (Langhoni v. Alnutt, Marshall, 676, 3d ed.), 
 where the words ' and arrives'' were not contained in the 
 policy, and the assured claimed, besides a total loss, which he 
 proved, a return of premium for sailing with convoy, the jury 
 refused to give it, on the ground that the assured had a right 
 in the valuation of his interest, if a valued policy, or other- 
 wise, in estimating the amount of his loss, to add the whole 
 amount of the premium to his invoice, and to recover it in the 
 amount of the total loss. It is evident that the same reason- 
 ing applies when the words ' and arrives' are contained in the 
 stipulation. 
 
 The practice at Lloyd's is, to return the premium upon the 
 difterence between the value in the policy, and the claim for a 
 ' partial loss or a particular average.
 
 Of Valuation. 29 
 
 policy. And as the proper mode of calculating for 
 either case has been fully explained there, a few 
 remarks only require to be added in this place. 
 
 It has been held by the English courts of law, 
 that the value of a ship shall be considered, as to the 
 underwriter, as remaining the same during the whole 
 voyage, notwithstanding the wear and tear, and the 
 consumption of provisions.'^ So that the same f shaw v. 
 amount is to be paid, whether the ship be totally io!j,Tnd i3^^ ' 
 lost at the beginning of the voyage, when there was East, 328. 
 no wear and tear, and little or no provisions were 
 used ; or at the end of a long voyage, when the ship, 
 by the wear and tear, is much reduced in value, and 
 the whole of the provisions are consumed. This 
 evidently shows, that in this country the ship ought 
 not to be valued for more than what it is supposed 
 she will be worth at the termination of the voyage ; 
 and that provisions, although the underwriter is liable 
 for them, should not be comprised in the valuation ; 
 because otherwise, if the gross freight is insured, 
 there can be no uniformity, and the owner will not, 
 under all circumstances, be placed in the same situa- 
 tion. It is true, that the underwriter being liable, 
 by law, for the loss of provisions, he would run that 
 risk without a remuneration, if the value of the pro- 
 visions were not comprised in the valuation of the 
 ship. This inconvenience, which evidently arises 
 from the adopted method of insuring ships not being 
 adapted to the nature of the transaction, can be 
 remedied only by raising the premium on the ship in 
 such proportion, as to give an equivalent for the risk 
 upon provisions for which no direct premium is paid. 
 Thus justice will be done to both parties, and the 
 owner will receive, under all circumstances, as near- 
 ly as this can be obtained by a separate insurance of 
 the ship and of the gross freight, a full indemnity 
 and no more.
 
 30 Of Valuation. — Benecke. 
 
 In the insurance of the ship and of the gross 
 freight no premium is to be included ; but, when the 
 net freight is insured, the premiums ought to be 
 comprised in the insurance of the ship. In the 
 former case the premium, being a necessary and 
 constituent part of the outfit, is comprised in the 
 gross freight, out of which it must be paid, whether 
 the consignee of the goods, or the underwriter pay 
 that freight. — But, in the second case the pre- 
 mium is deducted with the other charges from 
 the freight, and the remainder only insured as net 
 freight. Consequently, if the whole of the pre- 
 miums were not comprised in the insurance of the 
 ship, the owner would have no compensation in the 
 event of a loss. — But the net freight is to be insur- 
 ed without the premium, for the same reasons for 
 which the premium must not be included in the in- 
 surance of expected profit. The premium for the 
 net freight, which is paid in order to secure the 
 profit of the voyage, necessarily diminishes that 
 profit. If it were included, the owner would gain 
 its amount in the case of a total loss, (a) 
 
 It will be almost superfluous to add, that if 
 the sums recovered are subject to deductions for 
 charges of recovery, &c, the sums insured for the 
 ship, and for gross or net freight, are to be increased 
 accordingly. — But the commission for effecting the 
 insurance must always be considered as a part of 
 the premium, and must not be included in the insur- 
 ance when the premium is not to be included. For 
 instance, the safe arrival of the ship is worth to the 
 owner, £2,446 
 
 (a) It has been held that a vahiation of freight at an 
 amount exceeding the actual interest of the assured, that is, 
 the amount he would lose by a total loss, will be valid, if fairly 
 made. Dumas v. United Ins. Co. 12 Serg. & R. 437. 2 Phil. 
 Ins. c. 14, s. 1. No. 6. — Ed.
 
 Of Valuation. 31 
 
 Supposing the premium to be £3 per 
 cent, commission for effecting the in- 
 surance £1 per cent, charges of re- 
 covery in case of loss 2i per cent ; 
 then, if he insures upon ship and 
 freight jointly £2,508, 15^, he will 
 have to pay on this sum £4 per cent, 100 7 
 
 So that after a safe arrival there will 
 
 remain £2,345 13 
 
 In the case of a safe arrival he will 
 
 recover £2,508 15 
 
 Less 2i per cent 62 15 
 
 Carried forward, £2,446 
 
 Of which deducting as above 1 00 7 
 
 The net amount will be the same as in 
 
 the case of a safe arrival, £2,345 13 
 
 The value of the ship, with her outfit, being con- 
 sidered in this country as remaining the same during 
 the whole voyage, it follows, that a joint insurance 
 on ship and freight in one policy is to be considered 
 as a combined insurance on ship and net freight, (a) 
 The value to be insured is the sum which the safe 
 arrival will be worth to the owner. 
 
 In Hamburgh, provisions, whether spoiled or to- 
 tally lost, are not paid by the underwriters, because 
 it is usual at that place to insure the gross freights. 
 Whoever intends to insure a ship with all charges 
 and provisions, must, therefore, expressly stipulate 
 for it in the policy, although in the printed policy 
 those articles are mentioned as being covered by 
 the insurance on the ship. 
 
 {a) A valuation of freight and cargo at a gross sum was 
 apportioned pro rata to the two. 2 Phil. Ins. c. 14, s. 1, 
 No. 7. — Ed.
 
 32 
 
 Of Valuation. — Benecke. 
 
 Insurance of 
 money snent 
 for repairs, 
 and on bot- 
 tomry and 
 resj)ondentia. 
 
 Difference be- 
 tween open 
 and valued 
 policies. 
 
 How the in- 
 terestin goods, 
 insured in 
 open policies, 
 is to be deter- 
 mined. 
 
 rules for calculating the amount of 
 
 Money expended during the voyage for repairing 
 the ship, &c, is to be insured with the premiums, 
 and with charges for effecting the policy (if in- 
 curred), and charges of recovery ; for the premiums, 
 &c, constitute a part of the charges of the repair, 
 which, after the ship's safe arrival, are to be borne 
 by the party concerned, and in case of her total loss 
 to be paid by the underwriter. The lender on bot- 
 tomry or respondentia, on the contrary, ought to 
 insure only the amount of the bond, without the in- 
 surance premium ; for, did he include it, the loss of 
 the ship would be more profitable to him than her 
 safe arrival. («) 
 
 The necessary 
 the real interest of the assured having been stated, 
 I shall now proceed to point out the modes of ex- 
 pressing the value in the policy, or the difference 
 between open and valued policies, and the effect of 
 valuation. 
 
 When goods are insured without a valuation being 
 made in the policy, the invoice price forms the basis 
 for calculating the interest of the assured, to which, 
 in almost every country, shipping charges and pre- 
 mium are added. But no regard is had to any of 
 the adventitious circumstances before mentioned, 
 which may have increased or decreased the value of 
 the article ; nor is interest of the capital admitted 
 into the calculation. This cannot be otherwise ; for 
 if the assured, after a loss, were admitted to prove, 
 for instance, that his goods did cost him, besides the 
 invoice price, £500 by expenses of a voyage to the 
 
 (a) Though the assured may increase the value of the ship 
 hy repairs or improvements after the commencement of the 
 risk, without therehy defeating the poUcy, yet the amount for 
 which the underwriters will be liable in either a particular or 
 general average, cannot be enhanced, .since reference will 
 be had to the commencement of the risk, in estimating the 
 amount of the insurable interest. 2 Phil. Ins. c. 14, s. 4, 
 No. 1,2.— Ed.
 
 Of Valuation. 33 
 
 port of loading, inclined on account of the return- 
 cargo, the underwriter would be exposed to fraud, 
 as it would depend entirely on the assured either to 
 communicate that circumstance or to conceal it. (a) 
 
 By the law and practice of England, ' the invoice 
 price at the place of shipping, including premiums of 
 insurance and commissions (if incurred,) is for all 
 purposes, of either total or average loss, the usual 
 standard of calculation resorted to for the purpose 
 of ascertaining the value in the case of an open 
 policy.' (1) 
 
 According to the 14th article of the 21st Tit. of 
 the Ordinance of Hamburgh, the value of merchan- 
 dize insured in open policies, shall be reckoned at 
 the invoice price, adding the expenses incurred in 
 shipping, and the premium, with premiums on pre- 
 mium. — The same principle has been adopted in 
 Holland. If goods, the value of which cannot be 
 ascertained by an invoice, have been insured at Am- 
 sterdam, without valuation, the matter is left to the 
 decision of Commissioners.^ g ord. of 
 
 The 64th article of the Ordonnance de Louis ^""^'^- § ^2- 
 XIV, and the 339th of the Code de Commerce enact, 
 that the value of goods insured in open policies be 
 ascertained by the commercial books, or by the in- 
 voice, and, in the absence of both, by an estimate 
 
 (a) An open policy has reference to the vahie of the subject 
 at the commencement of the risk. The general principle of 
 indemnity in marine insurance, is, in case of loss, to put the 
 assured in as good a situation, not as he would have been had 
 the ship and cargo arrived safe, but in as good a situation as 
 he was in respect to the property lost, when the adventure 
 commenced. 1 Phil. Ins. 320. — Ed. 
 
 (1) Per Lord Ellenborough, in Usher v. Noble, East, xii, 
 646. — That the assured may comprise in the insurance, not 
 only the simple premium, but the wliole premium paid, (pre- 
 miums of premium,) this was decided so early as the year 
 1747, in a case before Lord Chief .Justice Lee. — See Park, 
 7th ed. p. 166. (b) 
 
 (b) The rule is the same in the United States. — Ed. 
 
 5
 
 34- Of Valuation. — Benecke. 
 
 according to the current price at the time and place 
 of ship])ing, and that the shipping charges and duties 
 arc to be inchided. 
 
 ' The assured,' Emerigon says, ' whose goods have 
 risen since he bought them, is at liberty to make a 
 new invoice according to the current price. He will 
 not be obliged to produce his books or invoice, be- 
 cause it is lawful to insure an acquired profit. If 
 the underwriters are not satisfied with the invoice 
 laid before them, no other choice is left them than 
 to have the goods estimated anew by competent 
 persons, referring to the time and place of loading. 
 The charges of the new estimate fall upon the as- 
 sured, who, unless he had the precaution to value 
 his goods, is obliged to produce his books or invoice, 
 and by refusing to submit to this, renders a new es- 
 timate necessary, without which he would not be 
 h I. Chap. 9, able to carry on his law-suit. "" 
 
 That an invoice, made out by the assured accord- 
 ing to the price of his goods at the time of their 
 shipping, be admitted, is very just, provided he re- 
 ferred to it at the time of making the contract. 
 But, should he be allowed to make this invoice the 
 standard of his calculation, without being obliged to 
 prove that the real cost cannot be ascertained, and 
 that the same invoice would, under all circumstan- 
 ces, have served as the basis of his claim, the un- 
 derwriter would be exposed to be grossly deceived. 
 An assured, whose goods were bought for £1,000, 
 . , and at the time of shipping are worth £1,500, might 
 thus insure £1,500 ; and in case of loss refer to the 
 market price, to be entitled to a full indemnification, 
 but in case of a safe arrival, he might produce the 
 original invoice, or his books, and claim a return of 
 premium on £500. 
 sli c^^^^ ^' According to Emerigon's opinion,' the premium 
 is not tacitly understood to be a part of the invoice 
 amount, and therefore, would not be added to the
 
 Of Valuation. 35 
 
 calculation of the value of goods insured in open 
 policies. His opinion is founded upon the 20th ar- 
 ticle of the Ordonnance (corresponding with the 342d 
 of the Code de Commerce) enacting ' that the assur- 
 ed is at liberty to insure the premium ;' so that the 
 insurance of the premium is not implied, but is per- 
 mitted when expressed. — Many persons in France, 
 however, are of a contrary opinion, because it is 
 natural to add to the prime cost of a shipment, those 
 expenses which are incurred merely on account of 
 that shipment. 
 
 In Italy also, the value of goods in open policies 
 is calculated, in case of total loss, according to the 
 prime cost or current price at the time and place of 
 loading. But in case of partial loss, a distinction is 
 made as to the place where the misfortune happen- 
 ed. If the loss occurred before half the voyage was 
 performed, the price at the place of shipping is con- 
 sidered as the value of the goods ; if after that pe- 
 riod, the price of the goods at the port of delivery is 
 the standard of the claim of the assured. '^ k Baidass,T. 
 
 By the practice of the Italian courts of judicature, 2'- t.'^iv, p. 
 the prime cost and shipping charges only are con- 35G. Decisv; 
 
 • 1^1 ^ . II- !•• Janncn.statut. 
 
 sidered as tormnig the value m open policies; pre- l. iv,cap. 17. 
 miums, commissions, &c, are not admitted, unless 
 particularly specified.' 1 Bald. t. 11, 
 
 If it be the intention of the assured to include in ^'qH' '^" ' 
 the insurance any of those items, which are not, 
 either by law or custom, tacitly included in an open 
 policy, such as commission for effecting the insur- 
 ance and charges of recovery, it will be highly ad- 
 visable to mention this in the policy, to prevent 
 trouble and litigation. 
 
 When a return of premium is demanded on ac- short interest. 
 count of short interest, the interest of the assured in 
 the goods shipped must be calculated in the same 
 manner as, according to the usage of the place of 
 the contract, it would be in the event of a loss. In
 
 36 Of Valuation}. — Benecke. 
 
 England, therefore, premiums and commission [if 
 incurred] must be included, and the premium for 
 the surplus returned. 
 
 Interest in It is verv uuusual to insure ships in open policies, 
 
 ships insured i r • t iti' i 
 
 in open poii- ^nd many loreign ordmances establish it as a rule, 
 <='^S' that the value shall be expressed in the policy. In- 
 
 deed it would be a matter of great difficulty to as- 
 certain after the loss of a ship, how much she was 
 worth at the commencement of the voyage, unless 
 she had been quite new, or publicly sold. If such a 
 circumstance, however, should occur, the only W'ay 
 w ould be to ascertain, as well as it could be done, 
 by witnesses and competent appraisers, the value 
 w hich the vessel had before the voyage, conformably 
 to the principles laid down in the second chapter. 
 Of freight. When freight is insured in open policies, it should 
 
 be expressed w^hether gross or net freight is to be 
 understood, unless the practice be so decisive in this 
 respect that no difference of opinion is to be feared. 
 In England, the amount of the gross freight of the 
 goods on board w ould be considered as the interest 
 of the assured. (1) («). 
 
 (1) In Forbes v. Aspinall, (13 East, 323,) Lord Ellen- 
 boroiigh said, that in an open policy on freight, the sum paya- 
 ble to the ship-owner for freight, together with the premiums 
 of insurance, and commission thereupon, is the extent to 
 which the underwriters are chargeable. But it was certainly 
 not his Lordship's intention thereby to sanction a mode of 
 calculation, which would give to the owner more than an in- 
 demnity : for he afterwards expressly declares that the policy 
 ought to be confined to a contract, as nearly as may be, of /«- 
 demnity, against what may be lost in regard of freight by the 
 perils insured against. 
 
 (a) If the owner has let his vessel for a certain gross amount 
 of charter-money, one half of which amount is to be advanced 
 by the charterer and not recoverable back by him in any 
 event, the amount of insurable interest of the owner is one 
 half of the gross freight, since only that amount can, in any 
 event, come into his hands. Etchers v. Aldan, I ]M. & R.
 
 Of Valuation. 
 
 From what has been said, it is clear that a valua- valued 
 tion in the policy is particularly useful, when the po^'^i'^s. 
 value of the subject insured cannot easily be ascer- 
 tained in the usual way ; as when either the produce 
 of a plantation, or manufacture, or goods that were 
 sent from distant places to the port of loading, or the 
 
 457. S. C. 17 Sarg. & Lowb. 229. 2 Phil. Ins. c. 14, s. 2, 
 No. 8. But the amount of interest in freight in an open policy 
 by the owner, in the United States, is tlie gross i'reiglit, the 
 Avhole amount of which he will recover of the underwriters in 
 case of total loss, though to have earned this amount he must 
 liave made large disbursements in the subsequent part of the 
 voyage insured, if the total loss had not taken place. The 
 assured accordingly will, in sucii case, if we regard merely 
 the freight, be a gainer by the total loss. For this reason, 
 Mr Chief Justice Dallas, in England, doubted of the correct- 
 ness of this rule. Palmer v. Blackbourne, 1 Bing. 61. 1 
 Phil. Ins. 317. 2 Phil. Ins. c. 14, § 2, No. 9. 
 
 A valuation of freight, though it may even exceed the 
 gross amount and yet be binding, is still held to apply to the 
 freight of a full cargo. If then freight be valued in general at 
 a certain sum, and only a half of the freight of a full cargo is 
 at risk, in case of total loss the underwriters are liable for 
 only half of the amount insured by them. 1 Phil. Ins. 317, 
 and cases there cited ; 2 Phil. Ins. c. xiv, § 1. 
 
 A question has arisen, whether a valuation of fi'eight for a 
 voyage consisting of successive passages, from and to succes- 
 sive ports of loading and discharge, is applicable to the aggre- 
 gate freight of the successive passages, or to the freight pend- 
 ing at any one time. For example, freight is insured and 
 valued on a voyage to the West Indies and back, and the 
 ship earns freight outward and is lost on the homeward 
 voyage. Does the assured recover one half, or the whole 
 amount insured in the policy] It was held in New York, that 
 he was entitled to recover the wdiole amount. Davis v. Hal- 
 lett, 3 Caines, 16. 1 Phil. Ins. 348. See also 2 Phil. Ins. c. 
 14, § 1, No. 13, 14. In a case that arose in Boston on an 
 open policy on freight for a similar voyage, in which the out- 
 ward freight was earned and the vessel then lost, it was decided 
 by a referee skilled in insurance, that the insurers were liable 
 for the whole amount insured by them. This was in con- 
 formity to the above case. But the policy will often show, 
 and ought always to show, whether the valuation in such case 
 is intended to be of the aggregate freight, or that pending at 
 any one time. — Ed.
 
 valuation. 
 
 Of Valuation. — Benecke. 
 
 price of which has materially altered since they were 
 bought, &c, are to be insurc^d ; — and that it is not 
 necessary, Avhen the real interest can be easily prov- 
 ed, and no extraordinary charges are meant to be 
 covered. But in the latter case also it is very usual 
 to value the goods in the policy, and this practice is 
 nuuli to be recommended as tending to facilitate in- 
 surance's, provided the value in the policy differ not 
 materially from the real value, and be not intended 
 as a cover for a wager, (a) 
 Effects of The practice of valuing goods in the policy being 
 
 now generally introduced, it will be necessary to in- 
 vestigate the effects of valuation according to the 
 laws and customs of the principal commercial coun- 
 tries. 
 
 It is not required in England that the value in the 
 policy should be exactly equal to the real interest of 
 the assured. Where a valued policy is bona jide, 
 meant as an indemnity, the courts will not inquire 
 very minutely whether the valuation is very near the 
 rert/ interest of the assured. A small excess ought 
 not to be regarded : the valuation can only be open- 
 ed where it is exorbitant, or where some proof of 
 
 (fl) A valuation of goods of which the assured owns only 
 a part, has been held to be a valuation not of the whole value 
 of the o-oods, but of the assured's interest in them. Feise v. 
 Aouilar, :3 Taunt. 500. Post v. Phoen. Ins. Co., 10 Johns. 
 79, both cited 1 Phil. Ins. 340. This will, however, evidently 
 depend in some degree upon the particular phraseology of the 
 policy. A valuation of the outward cargo has been held to be 
 a valuation of the proceeds, in a policy on the outward and 
 homeward voyage. Haven v. Gray, 12 Mass. Rep. 71, cited 
 1 Phil. Ins. 310. But it ought to be considered as a valuation 
 of the ivhole proceeds. 
 
 A valuation at a certain rate per pound, has reference to 
 the pound of the place where the policy is made. 1 Phil. Ins. 
 311. It has been held in Massachusetts that the provision 
 that ' in case of loss no proof of property should be required,' 
 was not to be construed as a valuation. Hemmenway v. 
 Eaton, 13 Mass. R. Ill, cited 1 Phil Ins. 310. — Ed.
 
 Of Valuation. 39 
 
 fraud can be established. But on the other hand, if 
 the interest proves to be a mere cover for a wager, 
 every court must pronounce the policy to be void, 
 vi^ithin the meaning of the statute 19 Geo. II, c. 37, 
 by which wager insurances have been declared ille- 
 gal.'" — In the case of Lewis v. Rucker, Lord Mans- m Marshall, 
 Jield, in delivering the opinion of the court, said : ^ ~'''^ 
 ' The only effect of the valuation is, that it fixes the 
 amount of the interest, just as if the parties were to 
 admit it at the trial. But in every argument, and 
 for every purpose, it must be taken that the value 
 was fixed in such a manner, as that the insured 
 meant only to have an indemnity. If it be under- 
 valued, the merchant himself stands insurer for the 
 surplus. If it be much overvalued, this must be 
 done with a bad design ; either to game, contrary to 
 the statute, or with some view to a fraudulent loss.' 
 
 If, therefore, by a mistake, the subject of insur- 
 ance has been much over-valued, or if less goods 
 than were intended to be comprised in the valuation, 
 have been shipped, the assured can recover only to 
 the amount of his real interest, (a) 
 
 The following observations of Lord Ellenborough 
 deserve particular attention, as calculated to eluci- 
 date the effect of a valuation in the policy. 
 
 In a late case, where the plaintiff claimed as for a Forbes v. 
 total loss upon a policy of insurance on freight, at and f3^East*'32G 
 
 («) The rules as to over-valuation and fraudulent valuation, 
 and mistake, are in general the same in the United States as 
 in England, with this diflerence, that in the United States 
 there is not, as in England, any statute against wagering poli- 
 cies. Therefore in those states where a wager may be en- 
 forced by suit, the fact that a policy was intended to he a 
 cover for a wager, is no objection to its validity. But in 
 Massachusetts the court will not entertain a suit on a mere 
 wager, and the rules of law as to a policy intended to cover a 
 wager will he substantially the same there as in England. As 
 to over-valuation, and mistakes and fraud in valuing, see 1 
 Phil. Ins. 305, 306, and authorities there cited. — Ed.
 
 40 Of Valuation. — Beiiecke. 
 
 (Voni Hayti to Liverpool, valued at 6500/, (where 
 the ship was lost when she had only 55 bales of cot- 
 ton of her retiiin-cargo on board, but so much of the 
 outward cargo was saved as would have bought a full 
 return-cargo,) his Lordship, in delivering the judg- 
 ment of the court, said — ' In every action upon a 
 policy on freight evidence is given, either that goods 
 AAcre put on board, from the carriage of which freight 
 would result, or that there was some contract, under 
 which the ship-oWner, if the voyage were not stop- 
 ped by the perils insured against, would have been 
 entitled to demand freight ; and in either case, if the 
 policy be open, the sum payable to the ship-owner 
 for freight, together with the premiums of insurance 
 and commission thereupon, is the extent to which the 
 underwriters are chargeable. In this case, therefore, 
 as there was no contract under which the ship-owner 
 could claim freight but for goods actually shipped on 
 the homeward voyage, the assured could have no 
 claim, had this been an open policy, but to the ex- 
 tent of actual freight on the 55 bales of cotton, 
 which were shipped for this country, and of the pre- 
 miums and commission thereon. And, indeed, that 
 point has been settled against this very plaintiff in 
 an action on an open policy on this very risk, in 
 Forbes and Another v. Cowie. The question then 
 is, whether it makes any essential difference, that 
 this is the case of a valued policy ? And we are of 
 opinion, upon full consideration, that it does not. 
 The object of valuation in a policy is to fix by agree- 
 ment between the parties an estimate upon the sub- 
 ject insured, and to supersede the necessity of prov- 
 ing the actual value, by specifying a certain sum as 
 the amount of that value. In fixing that sum, if the 
 assured keep fairly within the principle of insurances, 
 which is merely to obtain an indemnity, he will 
 never go beyond the first cost, in the case of the 
 goods ; adding thereto only the premium and com-
 
 Of Valuation, 41 
 
 mission, and, if he think fit, the probable profit; 
 and in case of freight, he will not go beyond the 
 amount of what the ship would earn, with the pre- 
 miums and commission thereupon. The valuation. Effect if only 
 however, in the case of goods, looks to all the goods pan of the 
 intended to be loaded ; and in the case of freight, it fhij)!™ 
 looks to freight upon all the goods the ship is intend- 
 ed to carry upon the voyage insured : and if by the 
 perils insured against in a valued policy on goods, 
 part only of the goods intended to be covered be 
 lost, the valuation must be opened, and the assured 
 can only recover in respect of that part : and so, if 
 by the perils insured against the freight of part only 
 of the goods to be carried be lost, the assured can 
 only recover in respect of that loss, according to the 
 proportion which that part bears to the whole sum 
 at which the entire freight was estimated in the 
 valuation. If, for instance, the insurance be gener- 
 ally upon goods, and the goods intended to be pro- 
 tected be 500 hogsheads of sugar, and a valuation 
 be made accordingly, but the ship by accident takes 
 on board 100 only, and sails, and is afterwards lost 
 by one of the perils insured against with those 100 
 on board ; can it be contended that the assured shall 
 recover to the full amount of the valuation, that is 
 for the whole 500, when he has lost only 100? So 
 in the case of freight ; if the ship would carry 500 
 tons, and, in fixing the valuation, the assured calcu- 
 late his freight upon 500 tons, but when he reaches 
 the loading port he can get 10 tons only upon 
 freight, and sails upon the voyage insured with those 
 10 tons only ; is it to be allowed, that if the ship be 
 lost by any of the perils insured against, and he 
 thereby lose freight upon 10 tons, that he shall be 
 entitled to the valuation which includes the freight 
 upon 500 tons ? The proposition is monstrous : in- 
 stead of confining the policy, as it ought to be con- 
 fined, to a contract as nearly as may be of indemnity, 
 6 ^
 
 42 Of Valuation. — Benecke. 
 
 against what may be lost in respect of freight by 
 the perils insured against, it converts it into a con- 
 tract of indemnity against a difrei*ent class of acci- 
 dents, which may operate to prevent the assured 
 from being able to procure a full cargo upon freight, 
 and may make it the interest of the assured, which 
 it never ought to be, that a loss should happen. 
 The Court, therefore, will look for very strong au- 
 thorities before they yield to such a proposition. It 
 was pressed, upon the argument, that in the case of 
 a valued policy, if any interest be proved to be on 
 board, and there be no fraud, a total loss will entitle 
 the assured to recover the sum specified in the valua- 
 tion. And to that position we accede, with this 
 limitation, that is, provided there is a total loss, by 
 any of the perils insured against, of the whole sub- 
 ject-matter of insurance to ivhich the valuation appli- 
 ed ; viz. of all the intended cargo of goods, where 
 the insurance was on goods ; and of all the intended 
 freight, where the insurance was upon freight. But 
 if it be meant to carry that position to this extent, 
 that the underwriter is not at liberty to inquire what 
 was intended to have been included in the valuation ; 
 or, when he has ascertained that point, that he can- 
 not reduce the sum below the valuation, by proving 
 that a part only of what was included in the valua- 
 tion has been lost by a peril insured against, we 
 deny the position when so extended.' 
 The rule is From thcsc principles, as laid down by Lord Ellen- 
 
 the United" borotigh, it follows without contradiction, that when. 
 States. ^ of certain articles comprised in a valuation, part are 
 ^uprag^p. ^, g^fgj^ landed before the ship is lost, the valuation 
 must be opened, and the claim of the assured be 
 reduced in the proportion which the articles actually 
 lost bore to the valuation of the whole at the com- 
 mencement of the risk. This observation would 
 hardly appear necessary, but for the following very 
 singular case, which was decided a considerable time 
 before that of Forbes v. Aspinall.
 
 Of Valuation. 43 
 
 A ship, and goods on board, valued at 6,600/, were siiaw v. 
 insured to Africa and the West Indies. Part of the J*jJ*^°"' 109 
 goods were employed in the purchase and sustenance 
 of a cargo of slaves. The ship, after landing the 
 slaves at the port of destination, but before the risk 
 ended, was so much injured, that she was condemned 
 and sold for 388/. It appeared that the slaves had 
 been sold to a profit, and that the captain had orders 
 to sell the ship in the West Indies, provided he could 
 get 1200/, or even 1000/ for her. The assured 
 having abandoned the ship, brought an action on the 
 policy, and obtained a verdict for the full amount of 
 the sum insured. The defendant moved for a new 
 trial, upon the ground that the subject-matter of the 
 insurance was, at the time of the loss, so much re- 
 duced from the original valuation, that this ought 
 not now to conclude the underwriters ; that not only 
 the real worth of the ship, by the owner's own ad- 
 mission, was so much less than the stipulated value, 
 but that the stores, included in the insurance to the 
 amount of 3000/, were profitably expended in the 
 purchase and sustenance of the slaves, all of whom 
 had been brought to an advantageous market ; and 
 therefore, the subject-matter of the insurance, as to 
 so much, was not lost to the assured, but arrived at 
 the place of destination ; and so far, therefore, was 
 the plaintiff from sustaining any loss in this respect, 
 that he was in fact a gainer in the adventure; that 
 the same observation would apply to about 400/ sea- 
 men's wages paid in advance, and included in the 
 policy ; and that, as the object of the voyage was 
 accomplished, this could not be a total loss. — But 
 the court determined that this must be considered as 
 a total loss. 
 
 Admitting that the valuation must be conclusive as Effect in case 
 to the original value of the ship, includinir seamen's "^^ provision? 
 
 c5 1' p _ and stores 
 
 wages advanced, and stores for the use of the marm- being con- 
 ers ; yet it is clear that the goods on board, and the ^"'"'^^-
 
 44 
 
 Of Valuatio7i. — Benecke. 
 
 n See Mar- 
 ehall's obser- 
 vations on this 
 case, p. 136, 
 3d edition. 
 
 Different 
 valuations in 
 successive 
 policies. 
 
 ° See Emer. 
 I. 275. 
 
 Bousfield V. 
 
 Barnes, 
 
 4 Campb. 228. 
 
 Stores intended for the slaves, could not be comprised 
 in the valuation of the ship. According to this de- 
 cision, therefore, the original value of the goods, or 
 which is the same, the slaves bought for those goods, 
 must be paid by the underwriters, although they were 
 landed before the loss of the vessel. But this part 
 of the decision, I conceive, may be considered as 
 completely overruled by the case of Forbes v. Aspi- 
 nall. There Lord Ellenhorough said, that if 500 
 hogsheads of sugar were intended to be laden, and 
 the valuation made accordingly, but the ship takes 
 on board 100 hogsheads only, and is lost, it would 
 be monstrous to contend that the value of 500 hogs- 
 heads must be paid. But would it not be equally 
 monstrous to contend, that 500 hogsheads must be 
 paid, if they were in fact taken on board, but 400 of 
 them safely landed before the misfortune?" («) 
 
 The value of the subject insured being once fixed 
 in the policy, the assured cannot be admitted to 
 prove, after a loss, that it was undervalued ; for it 
 would depend entirely on the assured to conceal that 
 circumstance, and to demand a return of premium, 
 if he insured the same thing in a second policy.^" — 
 But where a ship was valued at 8000/ in one policy, 
 on which 6000/ were insured, and in another policy 
 at 6000/, on which only 600/ were subscribed. Lord 
 Elle7iborough. was of opinion, that it was no defence 
 
 (o) In ordinary cases the provisions are a part of the ship, 
 and the consumption of them is analogous to wear and tear, 
 and so no ground of abatement from the valuation in case of 
 loss. Mr Benecke proceeds on the ground that the supplies 
 for the support of the slaves, are to be distinguished from the 
 provisions for the crew. In a case of general average on a 
 ship employed to transport convicts to New South Wales, the 
 English court of common pleas held, that the provisions and 
 supplies for the convicts during the voyage, were not liable to 
 contribute to the average as being cargo. Brown v. Stapyle- 
 ton and others, 4 Bing.'^llO, cited 2 Phil. Ins. c. 15, § 12, No. 
 6. This case accordingly puts these supplies upon the same 
 footing as the provisions for the crew. — Ed.
 
 Of Valuation. 45 
 
 on the second policy to prove that the assured had 
 received the whole amount of the valuation in this 
 policy from the underwriters on the first, if the sub- 
 ject-matter to be insured proved to be of a value 
 equal to the sum received, and that sought to be 
 recovered. The assured, in this case, could not 
 have produced the first policy, after a safe arrival, to 
 claim a return of premium on the latter, (a) 
 
 In France, the valuation in the policy is consider- Effect of 
 ed as the basis of the claim of the assured, unless valuation in 
 the undervi^riter prove it to be false. The Guidon tdes^" ^'^^^' 
 de la Mer, however, allows the underwriter to cor- 
 rect the valuation.'' Valm, Fothier, and Emerigon,'^ p cii. 2,art. 
 are also of opinion, that the underwriter is at liberty ^qvaiin arti- 
 to insist upon a new valuation, if he be able to prove de g4; Po- 
 that contained in the policy to have been too high. i5u •' Emeri- '^ 
 The opinion of these authors agrees with the spirit §°"' t. 1, p. 
 of the law of their country, which declares all wager " 
 policies to be void. 
 
 By the 8th article of the French Ordonnance, the 
 underwriter has a right to insist upon a new valua- 
 tion of a ship in case of fraud. The Code de Com- 
 merce is still more explicit on that point. The 336th 
 article says, ' If there be fraud in the valuation of 
 the subject insured, or if an insurance be applied to 
 a subject which was not meant to be covered by it, 
 (en cas de supposition) and also in case of falsifica- 
 tion, the underwriter may demand proof and a new 
 estimate, without prejudice to any other civil or 
 criminal proceedings.' 
 
 The Guidon de la Mer, in the above cited article, 
 says, that the underwriter needs not acquiesce in a 
 valuation, which is one-half, one-third, or one-fourth 
 above the true value. Upon this, Valin' founds his r Art. s. 
 
 (a) The rule is the same in the United States. Dull v. 
 Higginson, 13 Mass. R. 102: Minturn v. Col. Ins.'Co., 10 
 Johns. R. 75. Kane v. Com. Ins. Co., 8 Johns. 176. Pleasants 
 V. Mar. Ins. Co., 8 Cr. 5-5, all cited 1 Phil. Ins. 308, 309. — 
 Ed.
 
 46 Of Valuation. — Benecke. 
 
 opinion, that an luiderwriter cannot legally be per- 
 mitted to reject the valuation in a policy, without 
 })roving that it exceeds the real value by at least one- 
 lourth. It is left to the assured to consider either 
 the price which he paid for his goods, or that w^hich 
 they are worth at the port of loading, as their real 
 > Emerigon, valuc,' to which, as bcforc observed, he may add the 
 premium. 
 
 It is very usual in France to stipulate in the poli- 
 cies on ships, ' that the value of the ship as express- 
 ed in the policy, shall be considered at all times and 
 at all places, during the voyage, as the true value 
 insured' (que Vestimation du navire tiendra lieu de 
 capital en tout terns et en tout lieu, pendant le voy- 
 age) ; and this clause is held to be valid, although 
 the value of the ship decreases in her voyage. To 
 this clause, another is frequently added, ' that the 
 underwriter shall have no claim on the freight,' 
 which stipulation is Justified by the Declaration de 
 1779, and has not been prohibited by the Code de 
 Commerce, 
 
 According to the 22d article of the Ordinance of 
 Amsterdam, no valuation shall be made of goods, 
 the prime cost or real value of which can be proved. 
 Goods, on the contrary, which are either of the as- 
 sured's own manufacture, or which, for any reason, 
 are taken at a price below or above the current, and 
 of which the real value cannot be proved, may be 
 valued in the policy, including all shipping charges 
 and the premium. — The 7th article of the same 
 Ordinance allows the assured to value the ship, with 
 the outfit and premium, yet not so as to exceed 
 the real value. Cases of over-valuation are to be 
 referred to the decision of the Commissioners. — 
 Valuations are very common in Holland ; the cited 
 passages, however, show that the underwriters are 
 not so far concluded by their admission as not to be 
 able to dispute the valuation, whenever they can 
 prove it to be fraudulent.
 
 Of Vahiation. 47 
 
 In Hamburgh, it has not been settled, either by 
 law or custom, how far the valuation in the policy 
 may exceed the real value, and I have not met with 
 any legal decision on that subject. Certain it is, 
 that no valuation, including a moderate profit, besides 
 all expenses and premiums, yvould be resisted by the 
 underwriters. 
 
 In Italy, the valuation is binding only if it corre- 
 spond with the real value of the thing insured. The 
 underwriters cannot, however, oblige the assured to 
 show that the valuation agrees with the real value ; 
 but it is incumbent upon them to prove the contra- 
 ry.' But where there is a clause in the policy, that ' Baidassero- 
 no other proof shall be required, in case of loss, than q^(^ { ^^ \^ 
 that of the misfortune, and the policy (Vaglia o no?i and i9. 
 vaglia, con il patto di noti esser tenuto a dare cdtre 
 prove, che quella del sinistro, e la polizzd) ; this is 
 held conclusive in the Italian courts of judicature." " Baid.T.iv, 
 
 The Ordenanzas de Bilbao enact, that the value '"' 
 of a ship shall always be expressed in the policy, to 
 avoid litigation after a loss. The underwriter hav- 
 ing consented to the valuation, is not allowed to dis- 
 pute it afterwards, but is obliged to pay four-fifths." ^ c. 22, art. 
 — With respect to merchandize, it is only said, 
 that no more than their real value, including duty, 
 charges, and premium, is to be insured, or the policy 
 will be void.''' ^ Art. 7. 
 
 The Prussian law requires that, whenever the con- 
 tracting parties have agreed respecting the value of 
 a subject, that value shall be expressed in the poli- 
 cy." No one shall be at liberty to insure any article "" Tit. Ass. § 
 for more than its current value at the place of the 
 contract. Insurances on goods shall not exceed their 
 prime cost, with the premium and all charges incur- 
 red ; insurances on freight shall not comprise more 
 than the amount of the freight stipulated by bills of 
 lading or charter-party. The underwriter is per- 
 mitted to prove, that the valuation comprises more
 
 48 Of Vahuttion. — Benecke. 
 
 than 10 per cent above the true value as before 
 y lb. § 1083 stated.^' 
 
 sq.i.;§2i70. 'Y)^^ Swedish Ordinance directs ships not to be 
 insured above their real value, charges and premium 
 •included, and that value to be expressed in the poli- 
 cy. The valuation once admitted, remains unalter- 
 able. — If goods are to be valued in the policy, an 
 exact specification as to number and value is requir- 
 ed ; and no further proof, after a total loss, can be 
 z Art. 352, insisted upon/ 
 
 ^'"^ ^ ''^- By the articles of the Insurance Company at Co- 
 
 penhagen, goods are to be valued for their real or 
 current price, together with all charges, with or 
 without the premium ; and ships, or shares in ships, 
 in the same manner, without, however, adding such 
 articles as are destined to be consumed during the 
 voyage. 
 
 Whether the Whcuever a valuation is made in such a manner, 
 opISdTSise that its validity cannot be disputed in case of a total 
 of partial loss, loss, it ought to bc the basis of indemnity also in 
 cases of partial loss. The contract between the 
 underwriter and the assured being, that the former 
 is to restore the latter, upon any loss arising from 
 the perils insured against, to the situation in which 
 he was, with regard to the value of his goods, before 
 the adventure ; and the valuation in the policy be- 
 ing admitted by the parties to represent that value, 
 there is not the least ground for departing from that 
 stipulation when a part only has been destroyed, or, 
 which comes to the same, when the whole is dam- 
 aged. Suppose goods that were bought for £1,000 
 to have risen in value to £1,300, and the proprietor 
 to expect upon that sum a profit of £100 at the 
 place of their destination. If he values those goods 
 in the policy at £1,400, and pays a premium accord- 
 ingly, can it be reasonably supposed that he intends 
 to be "ademnified at that rate only in case of a total
 
 Of Valuation. 49 
 
 loss, and at the rate of £1,000 upon a partial loss ? 
 There is, of course, a considerable difference be- 
 tween the premium of an insurance against total loss 
 onlj, and of one against all kinds of loss ; must it 
 not then be presumed that the parties, if such had 
 been their intention, would have agreed upon one 
 premium for £1,000 against every kind of loss, and 
 upon another, much inferior to the former, for £400 
 against a total loss only ? 
 
 Another strong reason against opening the policy 
 in case of a partial loss might, if any further were 
 wanted, be deduced from the present imperfect mode 
 of insurance. Whilst insurances against charges 
 payable at the port of delivery are not in use, the 
 merchant has no other means (insufficient as they 
 are) of securing himself against such losses, than to 
 comprise the amount of such freight and charges in 
 the valuation of the goods. Let the prime cost of 
 certain goods be £1,000, and the freight and charges 
 payable on the same at the port of delivery £500 ; 
 if the proprietor insure only £1,000, and his goods 
 arrive deteriorated by 50 per cent, he will lose £250, 
 as only one half of the sum insured, or £500, will be 
 paid by the underwriter. If, to obviate this loss, he 
 values his goods at £1,500, (the present practice of- 
 fering him no other means of indemnity) would it 
 not be unreasonable to frustrate the plain and honest 
 intention of the assured, by opening the policy in 
 case of the goods arriving damaged, that is, in the 
 only case in which he would sustain a loss upon 
 freight and charges, and to allow the valuation to 
 stand in case of total loss, that is, when no loss upon 
 freight and charges was sustained ? 
 
 This reasoning holds, not only where the valuation 
 has been made at a certain sum for every piece or 
 hogshead, &c, or in the gross upon a quantity of 
 goods of the same description and quality, such as 
 ' on 50 hogsheads of clayed sugar, valued at £30 per 
 7
 
 60 Of Valuation. — Benecke. 
 
 hogshead,' or ' on 50 hogsheads of clayed sugar, 
 valued at £1,500.' It is equally applicable, when a 
 valuation has been made upon dilierent goods, or 
 upon different qualities of goods of the same kind, in 
 one entire sum, such as ' on 100 barrels of rice, 50 
 hogsheads of sugar, and 50 hogsheads of coffee, 
 valued at £4,970 :' for if the merchant be at liberty 
 to insure, for instance, 20 per cent above the invoice 
 price for profit or freight upon every single piece or 
 quantity of goods, he must be equally at liberty to 
 do so when a cargo consists of different articles. 
 Thus, if in the instance of rice, sugar and coffee be- 
 ing, comprised in one valuation, 20 per cent above 
 the invoice having been insured, sugar only should 
 become damaged, while the other two articles re- 
 mained sound, the adjustment ought not to be made 
 at the invoice price, but at 20 per cent more. 
 
 The question, whether the valuation shall be 
 opened in case of partial loss, has never occurred in 
 a^Marshaii, English courts. The case of Le Cras v. Hughes,'' 
 where an insurance was made on ship and goods, 
 ' valued at the sum insured,' and no value was men- 
 tioned in the policy, can hardly be cited on this 
 occasion. The subject of the insurance was a prize, 
 and the policy w as effected on behalf of some of the 
 captors, for a larger sum than the amount of their 
 interest. When the ship w as lost, and only part of 
 the cargo saved, it became necessary to ascertain the 
 value. The broker swore that on such policies as 
 this, whenever a total loss happened, the whole sum 
 was paid ; but that w henever a partial loss only 
 ensued, they considered it as an open policy, and 
 paid a proportion, not of the sum insured, but of the 
 value of the goods. The interest of the assured in 
 the ship and goods being less in value than the sum 
 insured, the court were of opinion, that the compu- 
 tation in this case must be by the 7'eal interest of the 
 assured on board, and not by the value in the policy.
 
 Of Valuation. 51 
 
 Marshall very judiciously observes, ' that the true 
 groud of distinction between this case, and that of 
 Lewis V. Rucker, is, that in the hitter, the value in 
 the policy was considered as the prime cost, and this 
 was never disputed ; whereas, in the former, it ap- 
 pears that the interest of the insured was considera- 
 bly less than the value in the policy.' 
 
 This case, therefore, affords no proof in favour of 
 the opinion, that valued policies, in which the valua- 
 tion comprises the real interest, consisting of the 
 prime cost and a fair profit, must be opened when a 
 partial loss takes place. The courts, on the con- 
 trary, have frequently pronounced an opinion oppo- 
 site to this doctrine. In Lewis v. Rucker, Lord 
 Mansfield said : ' The rule by which the defendant 
 and the jury have gone, is this : the defendant takes 
 the difference between sound and damaged goods at 
 the port of delivery, and pays that proportion upon 
 the value of the goods specified in the policy, &c. 
 Suppose the prime cost or value in the policy to be 
 30/, and the damaged goods sell for 40/, which if 
 sound, would have sold for 50/, the difference is one- 
 fifth ; the insurer must, therefore, pay a fifth of 30/, 
 &c.' — In Usher v. Nohle,^ Lord Ellenborough said: ^ East, xii, 
 ' This rule of calculation (alluding to the mode of 
 adjusting partial losses established in Lewis y. Ruck- 
 er) is generally favourable to the underwriter ; but 
 the assured may obviate this inconvenience, by mak- 
 ing his policy a valued one,'' &c. These words un- 
 doubtedly imply, that the valuation is to be looked 
 upon as the real interest also in partial losses. — In 
 a later case at Nisi Prius," his lordship expressed " Hilary 
 
 xU -J ^ • crri 4- ' • Term, 1811. 
 
 the same judgment, saying, ' Ihat in an insurance 
 on goods valued in the policy, there may be a sum 
 included for imaginary profit, and the valuation can- 
 not be opened in consequence.' 
 
 Mr Justice Park'^ expresses himself on this subject d 7th ed. p. 
 in the following manner : ' It is only in cases of total
 
 52 Of Valuation. — Benecke. 
 
 loss that any difteronce exists between a valued and 
 an open policy ; in the ibrmer case the value is ascer- 
 tained, in the latter it ninst be proved. But where 
 the loss is partial, the value in the policy can be no 
 o-uitU^ to ascertain the damage, which then necessa- 
 rily becomes a subject of proof, as much as in the 
 e B. I. ch. case of an open policy.' — And Marshall^" ' it is only 
 ™' ^ ^" in the case of a total loss that there is any material 
 difference between an open and a valued policy. In 
 the former, the value must be proved, in the latter it 
 is admitted. But in the case of a partial loss, the 
 like inquiry into the true amount of such loss is to 
 be made, whether the policy be of the one sort or 
 of the other ; for if this were not to be done in the 
 case of a valued policy, the consequence would be, 
 either that every partial loss must be considered as a 
 total one, or else that nothing should be deemed a 
 loss at all, unless it were a total loss.' — The opinion 
 of these learned authors has l)y some been interpreted 
 to be, that in case of a partial loss, the valuation 
 ought not at all to be regarded, and that only the 
 prime cost and expenses, as in open policies, must 
 be attended to. But their meaning, as appears to 
 me, can only be that in partial losses the value in the 
 policy is not sufficient to show the amount of the 
 indemnity to which the assured is entitled, but that 
 other prools are necessary to ascertain that amount. 
 The opinion, therefore, of those who pretend that 
 in the case of a partial loss the valuation ought to be 
 disregarded, seems to be as destitute of authoritv as 
 it is void of justice and sound reason. 
 
 At Hamburgh also, the value in the policy is in- 
 variably the basis of the adjustment of partial losses, 
 so that the underwriters pay one-fourth of that value, 
 if the deterioration of the goods be one-foiUth, &c. 
 The 5th article of the Stipulations of 1800, which 
 has been adopted by most of the insurance compa- 
 nies, — according to which the valuation is admitted
 
 Of Valuation. b^ 
 
 only in case of total losses, and when the subject 
 insured must be sold at a place short of its destina- 
 tion, and on behalf of the underwriter, — must not 
 be construed to imply that the policy shall be opened 
 in case of partial losses. Its only meaning is, that 
 the underwriters will pay the value in the policy 
 upon total losses, without further proof of the real 
 value of the subject insured, and that they will make 
 up the difference between that sum and the net pro- 
 ceeds of goods that have been sold under such cir- 
 cumstances, (a) 
 
 [a) Tliere seems to be not a little confusion and obscurity 
 in regard to opening tbe valuation in partial loss and general 
 averag-e. Tbis is owing to tbe nncertainty as to wbat is to be 
 understood by opening the valuation, if it mean tbe setting it 
 aside and disregarding it, tbe doctrine is wbolly inadmissible, 
 since tbe valuation is as essential a part of tbe contract as any 
 otber. Wbere tbe valuation is applicable, as, for instance in 
 a partial loss by a damage to tbe goods, or a destruction of a 
 part of tbem, tbe amount of tbe loss, as between tbe parties 
 to tbe policy, is to be estimated on tbe basis of tlie valuation. 
 1 Pbil. Ins. 313, &c. 2 Id. c. 14, § 1, No. 1-2. 
 
 But in a particular average for tbe expenditure of money 
 on account of goods insured, tbe valuation is not directly 
 applicable in estimating tbe amount of tbe loss, wbicli will be 
 tbe amount expended. But bere resort is bad to tbe valuation 
 to ascertain bow great a part of tbe loss tbe underwriter is 
 liable to pay, or in otber words bow great a part of tbe value 
 of tbe goods be insures, for if tbe goods are valued at 10,000 
 dollars, and be underwrites 5,000 dollars, be ougbt evidently 
 to pay one balf of tiie expenditures incurred, wbetber tbe 
 valuation be bigb or low. But in regard to an assessment of 
 a general average upon tbe goods, tbe underwriter indemni- 
 fies tbe assured for bis proportion of tbe contribution only to 
 tbe extent of 'tbe valuation ; tbat is, if tbey are valued in tbe 
 adjustment of tbe average at twice tbe amount at wbich tbey 
 are valued in tbe policy, if he underwrites balf of tbe goods, 
 he reimburses only a quarter of tbe contribution. But in a 
 particular average on a ship tbe valuation does not apply, 
 as in the case of goods, for be pays for repairs in tbe propor- 
 tion of tlie amount insured by him to tbat of tbe vabiation, 
 whether tbe valuation be bigb or low. Tbe valuation is not, 
 therefore, ever disregarded. All that can be said is, tbat it is 
 not usually applicable in estimating the amount of loss, but it
 
 54 • Of Valuation. — Benecke. 
 
 Vahntions It is mofc advisablc to express tlie value of each 
 
 li'mado'in a articlc Separately in the policy ; to say, for instance, 
 irrosssum. yaliiccl at so much per pound, piece, yard, or per 
 tw Sari? hogshead, bag, &c ; or at least to value each descrip- 
 <^''^- tion of goods separately, than to comprise different 
 
 articles in one valuation. An explicit valuation will 
 prevent the necessity of an inquiry into the propor- 
 tion of the damaged goods to the whole, if single 
 pieces, casks, &:c, or if goods of one kind only should 
 be damaged. This precaution is still more essential 
 when goods are insured in ship or ships : yet if sev- 
 eral articles be collectively valued in one sum, and 
 only one article damaged, there can be no doubt that 
 such proportion of the valuation as the damaged arti- 
 cle has to the whole ought to be looked upon as the 
 interest in that article, and consequently to form the 
 basis of indemnification. 
 Reduction of Jf the value of goods expected from remote parts, 
 moneys. is uot kuowu at tlic time of effecting the insurance, 
 
 and a reduction of the money at the port of loading 
 into that of the place where the insurance is effect- 
 ed, is stipulated into the policy — for instance, from 
 6*^ Thomas's to Amsterdam at 40 stivers per dollar — 
 it ought to be expressed in the policy, whether the 
 premium is comprised in the valuation or not. In 
 the absence of such stipulation, the premium must 
 be deemed to be included in the insurance, because 
 fixing the value of the coin is in fact a valuation of 
 the goods. («) 
 
 is always regarded in determining how much of the loss the 
 underwriter must make indemnity for. — Ed. 
 
 (rt) A valuation in tlie lump of the whole mass of property 
 insured includes the premium, 1 Phil. Ins. 311 ; 2 id. c. 14, 
 s. 1, No. 11. That is, if a cargo is valued at a certain sum 
 without any mention of the premium, the construction is the 
 same as if it was valued at that sum including premium. It 
 is a point of some practical importance, since if the premium 
 is not included the assured must bear a proportion of partial 
 losses, even although the amount insured in the policy should
 
 Of Valuation. 55 
 
 When the policy is : ' on goods as may be here- Clause: 'to be 
 
 1 «/ o 1 . . valued nerccLi- 
 
 after declared and valued,' the declaration of inter- ter.' piannan 
 est, to be available, must be communicated to the CanipK50.'^ 
 underwriters, or some one on their behalf, before 
 intelligence is received of the loss. But the declara- 
 tion of interest is not a condition precedent ; and if 
 none is made, the policy is then open instead of 
 valued, and upon proof of interest at the trial the 
 assured will be entitled to recover. («) 
 
 If goods are fraudulently overvalued in a policy. Fraudulent 
 with intent to cheat the underwriters, the contract Ha^g^ v."be la 
 is entirely vitiated, and the assured cannot recover ^°"^',"^o,q 
 even for the value actually on board. (6) 
 
 in fact exceed the actual value of the property. But a valua- 
 tion at so much for the franc has been held in New York not 
 to include the premium. Ogden v. Col. Ins. Co. 10 Johns. 
 273. And the parties adopted the same rule in a case of 
 valuation at so much per pound. JNIinturn v. Col. Ins. Co. 10 
 Johns. 75, cited 1 Phil. Ins. 312. It seems however to admit 
 of a query why there should be sucli a distinction between a 
 valuation in the lump, and at so much per pound. The rea- 
 son for including the premium in each case is the same. The 
 valuation of the franc stands upon diftcrent ground. It is not, 
 in fact, a valued policy, but merely an agreement as to the rate 
 of exchange. — En. 
 
 (a) But if such a declaration is made by mistake, it may 
 be corrected, as in case of a declaration of goods by a ship, 
 on board of which no goods of the assured were shipped. 
 Robinson v. Touray, 3 Camp. 158, cited 1 Phil. 310. — Ed. 
 
 (b) See 1 Phil. Ins. 305, 306. 2 id. c. 14, s. 1, No. 2.
 
 CHAPTER III. — Of Average. 
 
 [Stevens. Part I.] 
 
 ^ Coweirs 
 IiUcrprcler. 
 
 Definition, and explanation of Average. 
 
 The books uritteii on the law of Insurance and 
 the ordinances of foreign countries inform us that 
 there are three kinds of Average, viz. — General 
 Average, — Particular Average, — and Petty Aver- 
 age. 
 
 The word ' Average,' when applied to Maritime 
 Commerce, is said by Co'a ell,"" to mean ' a certain 
 contribution that merchants and others proportionably 
 make towards the losses of such as have their goods 
 cast overboard for the safety of the ship, of the 
 goods, and of the lives of those in the ship, in a tem- 
 pest ; and this contribution seems to be so called, 
 because it is proportioned after the rate of every 
 man's average, or goods carried.' (1) In general the 
 
 (1) The writers on Insurance are not agreed as to the 
 b Marshall, etymology of the word ' Averao^e.' — Mr Serjeant Marslialli> 
 p. u35, n. quotes Cowell, who considers it to be derived from the Latin 
 
 word — averagium ; which comes from the verb averare, to 
 can\v, — and ori^jinally sijrnified a service which the tenant 
 owed to his h)rd by horse or carriaj^e. It is said to have been 
 introduced into commerce, to show the proportion and allot- 
 ment to be paid by every man according to his goods carried.^ 
 c Millar, p. Millar*^ thinks the word is derived from the Saxon "^ealF, 
 334. i. c. half, which corresponds with a word of a similar sound in 
 
 d Johnson s all the Teutonic languages, pronounced with the / mute ;d 
 Dictionary. hence the word haZvers, partners ; and ha/verage, partnership. 
 HaZverage, or average loss, therefore, means a partnership 
 loss. Perhaps the opinion of this being the most correct deri- 
 vation, may meet with some confirmation from the word being 
 written in the German, (a self-derived language,) TiToi'mf. In 
 the Dutch, it is Avcric ; in the French, Avarie; in the Italian
 
 Of Average. bl 
 
 meaning of the term is ' a medium ; or a mean pro- 
 portion." f Johnson's 
 Of the three kinds of average mentioned above, i^^^^'«"=^^y- 
 the first is the only one properly entitled to the ap- 
 pellation. — The second is made use of by foreign 
 writers, merely in opposition to the first, or as a 
 means of showing that the damage incurred is a 
 particular loss, and is not, therefore, a subject for 
 eeneral contribution : i. e. it is no average at all.^' / ^^r^- , 
 
 & 7 • 7 . \ c c \ J Scott, 1 Rob. 
 
 ihe third is composed oi some ot the petty and or- Adm. Rep. p. 
 
 dinary charges of the voyage ; and it might as well, ^'^^• 
 
 therefore, bear any other name as that of average. 
 
 It is only in that case where the term is never used, 
 
 that the appellation would be correct ; — that is, 
 
 when any charges specifically attach to the cargo: — 
 
 if in such a case the ship be a general one, the 
 
 shippers must all bear these charges in proportion 
 
 to the value of their goods ; and thus this may very 
 
 properly be distinguished from a general average, 
 
 and the term ' particular average' may be correct. 
 
 But this is not the way in which it is applied in 
 
 Lloyd's; there, ^particular average on goods, means, 
 
 a partial loss in their value, occasioned by sea 
 
 damage. 
 
 and Spanish, Averia. If any person be particularly curious on 
 this subject he may consult M. L. Boxhoi'n, {in Dissert, ad 
 Arnold. Vinnium, J. C) who pretends to trace back the word 
 to the Arabians and Scythians, from the latter of whom he 
 says the Germans received it, and the French from them. 
 Q,. van Weytsen, in his Treatise on Average, says that the 
 word is derived from the Greek (iaqoc, (which signifies onus, 
 or weight, trouble, charge,) and having the privative prefixed, 
 makes a^agog {^aharos or avaros) — without charge, which 
 word is made use of when a vessel having made a jettison ar- 
 rives without its entire cargo. — Be this as it may, it would 
 require some boldness for any one to assert that he had found 
 the true etymology of the word, after the very learned author, 
 Emerigon,^ having declared that it is not yet discovered, and •= Traite 
 that it is probable it never will be. ton/T^p^GOl'. 
 
 8
 
 58 Of Average. — Stevens. 
 
 Average properly means, — a contribution made 
 by all the parties concerned in a sea adventure, to 
 make good a specific loss or expense incurred by one 
 of them for the general benefit. 
 
 The custom is of very ancient date ; for it has a 
 
 principal place in the laws of Rhodes ; which were, 
 
 it is said, formed and promulgated nine hundred 
 
 years before the Christian sera, and were afterwards 
 
 1. Diirostorum adopted by Justinian into his Digest.'' It has been 
 
 De k'w Rho- justly said that ' the wisdom and equity of the rule 
 
 di;i de jactu. -^vill do houour to thc memory of the state from 
 
 minio niaris, whosc codc it has been derived, as long as maritime 
 
 &c, hb. i,c. commerce shall endure.'' 
 
 Huet. Hist, du From the above definitions it may be inferred, 
 coin^des. Anc. ^|^^^ ^^^ word is uot applicable in any case, in the 
 i Abbott on first instance, to a policy of insurance ; but that it is 
 '^^"Jos"^'^*^'^ more properly connected with the rights and duties 
 of the ship-owner and the merchant. The appor- 
 tionment indeed, for the general contribution, is 
 made (or it ought to be made) without a reference 
 to any policies being effected. — The positive con- 
 tract of insurance (1) is of many centuries later date 
 k Grotius,iib. than the implied contract of average. *" 
 ii, c. 12, § 5. j^ j-j-jjj^, ]jg remarked, that the w^ord ' average' does 
 not once occur in the body of a policy of insurance. 
 
 (1) We do not know when the practice of Insurance com- 
 menced in this country ; but Quintin van Weytsen, who pub- 
 lished his judicious Traits des Avaries in Holland as far back 
 as 1563, places London before Antwerp — for speaking on a 
 matter whei-e the insurers are liable, he adds ' suivant la cou- 
 1 Q. van W. tume de Londrcs ct de la Bourse d^Anvers.''^ From the author 
 P' thus quoting the custom of London as an authority, we may 
 
 reasonably infer that the underwriters of this great city were, 
 two hundred and fifty years ago, as they are at the present 
 day, pre-eminent of all others. It is worthy of observation, 
 that this writer and others after him place the insurer in the 
 situation (in regard to the protection of the law) of pupils or 
 infants — he says, ' V Assureur qui est pi'otege ou tenu jjar tout 
 comme un pupille.^
 
 Of Average, 59 
 
 In the memorandum of warranty at the foot of the 
 policy, it is mentioned as distinguished from general 
 average. 
 
 All losses not total are said to be average loss- 
 es :•" and so the courts of law in this country use "" Pothier,Tr. 
 
 " •' des Con. 
 
 the term. dAss. c. 3, n. 
 
 112. 4 Taunt. 
 Rep. p. 31J7.
 
 CHAPTER IV. — Of General Average. 
 
 [Stevens. Part I, ch. 1, section 1.] 
 
 So much has been said on this subject by the an- 
 cient and the modern writers on Marine Law, that 
 it may not be necessary to go at length into the 
 question ; particularly as such a discussion would be 
 out of its place in an Essay. It is therefore my in- 
 tention chiefly to consider, — ivhat constitutes a 
 claim to a General Contribution ; and the Nature 
 and Value of the Interest to contribute. 
 
 A claim for a general contribution may arise from 
 
 Two occasions two causes : — First, — from a sacrifice deliberately 
 
 t)f general j r i r r i .- -^ 
 
 average. made 01 tuo property oi one oi the parties concern- 
 ^ ed in the adventure, for the benefit of the others ; 
 
 Rhod'.^art.^l, and whercby his loss is directly converted to their 
 cJnsoi del S^^^^ i — ^^1 this he has a right to claim Restitution ;" 
 Mar.For. Ord. — accordiug to the equitable maxim of the civil law, 
 Q.^vTn Weyt- ^^^^0 debet locupletari aliena jacturd ; — 'no one 
 sen, Trades ought to profit by another's loss.' (1) Secondly, z. 
 Domat.'^Law claim may arise from expenses incurred, or services 
 Civ. 1. 2ait9. performed, by one party, — (e. ^. the ship-master,) 
 
 Magens, p. 5o. K. , '" r ^i P i-ii -i 
 
 Weskett, p. lOf the ffcueral benefit : — and for this he has a right 
 
 130. • ' ^ fe ' fe 
 Pothier, Sup. 
 
 Cont. de L. (1) That this maxim is not always to be construed literally 
 
 n. lOG. may be illustrated as follows: — If of two ships laden witla 
 
 c''ir'f°39 ^^"""^ *^"^ ^^ ^^^^ ^* ^*^'^' ^^^^ ^"'"'^ ^^ board the one which 
 Kaimes' Pr. arrives may sell at a higher price, and thus a profit will be 
 Eq. b. l,p. 1, gained by another's loss. It appears therefore that this max- 
 p \^ ^'ioi ^^' ^^^^ most general maxims, is apt to mislead by being too 
 JVnna'r^ 335 *^o"^pi'^h6nsive. Reflecting on this subject we find that no- 
 Marshall, p. thing which a man acquires by his own means, or by accident, 
 53G. however connected with the loss sustained by another, will 
 
 on"!'^^'^''^ ever, independently of some j)ersonal connection, bind him to 
 
 ' ^' make up that loss out of his gain.'' 
 
 b Kaimes' Pr. 
 Eq. ut sup.
 
 Of General Average. 61 
 
 to claim a Recompense. But where neither of these 
 principles will apply, no contribution ought to be 
 demanded. 
 
 The requisites necessary to make valid a claim of ^•'^^^^j^^ ^° 
 this nature are as follow : — When Restitution is fverage. 
 demanded, — the ship must be in actual distress ; 
 the thing intended to be destroyed must be expressly 
 selected for that purpose ; — the sacrifice must be 
 made premeditatedly and deliberately ; and the end in 
 view must be no other than that of the general pre- 
 g^ervation." Abstractedly considered, the mind and •= Q.y.Weyt. 
 agency of man must be employed;*^ — the act must stmcc.'de 
 be preceded by foresight, and attended by volition. — Jjj^^- p- ^' "• 
 And, moreover, it must have the desired effect, i e. ^ Abbott, p. 
 the vessel must be preserved.*" It would be going 355. 
 too far to say that its preservation must be the direct ^^ Leg. Rhod. 
 consequence of the act, — for of that no one can 6rd. Fr. ' du 
 judge ; — but it must be preserved at the time.^ For, poth.'^c.'deL. 
 if the whole be lost, there can be no claim for resti- n. ii3. 
 tution ; nothing having been gained by the loss, and J" ^^^^^°^- 
 neither party being better nor worse for the sacrifice. Le Guidon, 
 But it is said, that in all cases of a sacrifice for the p^th^'c dfi, 
 general good there must be a sufficient cause. For p.2, § i,art.i. 
 if jettison (e. g.) be made on a false alarm, it cannot ^'J"' ^' ^^' 
 be said that the jettison i)rocured the safety of the Ord. Fr. ut 
 
 1 • ..■ . .1 r • *1 • * • sup. & For. 
 
 vessel — ^jettison cannot tliereiore m this case give rise ord. 
 
 to contribution.^ (a) When recompense is claimed it g Poth. c. de 
 
 must be clearly shown that services have been per- ^- ^^ ^"p 
 
 formed out of the ordinary course of the voyage ; and 
 
 which had no partial advantage in prospect, but were 
 
 absolutely intended for the general benefit. 
 
 Thus far as to the geyieral principle of Average 
 Contribution: — The following articles contain, — 
 First, the causes of general average claims, as they 
 may be collected from the foreign laws and ordinan- 
 
 (a) If due judgment and discretion are used in making a 
 jettison, it will be a case of average, although the master may 
 be mistaken as to the degree of danger. — Ed.
 
 62 
 
 Of General Average. — Stevens. 
 
 ces 
 
 the ancient and modern writers ; and the prac- 
 tice of the present day ; on which there is no dis- 
 pute : and Secondly, — those cases which me un- 
 settled and doubtful — or are not allowable by the 
 
 law of England. 
 
 Article I. Of the Claims for General Average Con- 
 tribution on ivhich there is no Dispute. 
 
 Jettison. 
 
 h Dig. 1. 14. 
 
 Leo-. Rhod. 2. 
 
 L 
 
 Leg. Oler. 8. 
 
 Lpg.Wisb.20. 
 
 Q. van Weyt. 
 
 p. 5. 
 
 Stracc. Tr. de 
 
 Naut. p. 3, n. 
 
 IL 
 
 Molloy de 
 
 Jure Mar. 1. 2, 
 
 c. 2, § 6, &c. 
 
 1 Mag. p. 64. 
 
 Weskett. p. 
 
 25.5. 
 
 Ord. France, 
 
 art. 6, ' des 
 
 Av.' Poth. 
 
 «& Val. sur 1. 
 
 m. Emer. ut 
 
 sup. For. Ord. 
 
 i Boucher, p, 
 45. ut infra. 
 
 their goods 
 of 
 
 [1 ] Jettison.'' — The most ancient and legiti- 
 mate source of general average contribution is jetti- 
 son. The justly famous digest of Justinian (before 
 mentioned) under title ii, of the fourteenth book, 
 adopts the laws of Rhodes on Jettison. By them it 
 is decreed that, ' if to lighten a ship in distress a 
 jettison be made, that which is thrown away for the 
 general safety shall be restored by a general contri- 
 bution.' It was the custom in former times (accord- 
 ing to the simplicity of ancient commerce) for the 
 merchants to sail with, and take personal charge of 
 To this custom, that ancient collection 
 the usages of the sea,' — the Consolato del 
 Mare (\), and the foreign ordinances allude when 
 
 (1) // Consolato del Blare, from Consulado, (Spanish) a Con- 
 sular Court. 
 
 It is a matter of surprLse that this code of laws or rather 
 ancient collection of sea customs, which has appeared in most 
 of the European languages, has never (as I can learn) been 
 translated into English. 
 
 ' The above title seems to have been given to it in the fif- 
 teenth century — for Alexander Raudense, who wrote in 1491, 
 says that this collection was called " Barcelonian laws." 
 Celelles, however, a Catalan, who printed an edition in the 
 year 1494, calls it in his preface " Consulat." Perhaps from 
 the Consuls at Barcelona having used the work as a code of 
 maritime law.'' 
 
 The true ' Consulat ' has only 294 to 296 Chapters, but 
 some of the Castilian, German, and Italian translations have 
 361 to 36.5 Chapters ; or, as we should call them ' Articles.' 
 Casaregis published an Italian translation, (Venice, 1566) 
 with excellent commentaries by himself ; and in 1577 Meyssoni
 
 Of General Average. 63 
 
 they provide that if the merchants be on board their 
 consent shall be asked before the jettison is made; — 
 
 published a translation in the French language ; this was 
 reprinted in 1635.^ G. B. Pcdrczzano also published an k Emerigon, 
 Italian translation (Venice, 1599.) An Italian and Dutch l>"^'f- vi. 
 edition was printed at Leyden in 1704. — A French transla- 
 tion, said to be from the original Barcelonian edition of 1494, 
 \^as published in 1S08, at Paris, by P. B. Boucher, the writer 
 quoted above. The two latter editions are in the library of 
 the London Institution as are Roccus and Bynkcrshoek men- 
 tioned below. 
 
 So early as the thirteenth century this code is said to have 
 been received as law in Italy, the Greek empire, France 
 and Germany ; and most of the marine laws in Spain, Italy, 
 
 France and England are borrowed from lO • Emerigon 
 
 ut sup. vide 
 
 Grot. Do jure 
 
 bel.l. 3, c. 1, 
 A selection from several of the foreign writers on insurance § 5, n. 6. 
 and maritime law might be useful to the practitioners in Vinnius in 
 Lloyd's, few of whom would take the trouble to go through Peckium, 190. 
 the works themselves, some of which are bulky and volum- ^^^ Marsli 
 inous. prel. disc. 16. 
 
 Among others may be particularly mentioned the follow- 
 
 The Digest, Book xiv, title 2. (De Icgia Rhodia dejactu.) 
 
 Roccus, {de Navibus, et Naido.) 
 
 Bynkershoek, [QiKEstionum Juris Privati — Lib. iv.) 
 
 Quintin van Weytsen, {Traite des Avaries.) 
 
 Those parts of Valin (Commentaire sur V Odonnancc de 
 Louis XIV touchant la Marine, donne a Fontainblcau du mois 
 d'Aout, 1681.) Of PoTHiER, (Supplement au Traite du Con- 
 trdt du Louage, ct Traite des Contrdts d'' Assurance) and of 
 Emerigon, ( Traite d' Assurances) which relate to the general 
 principles of Insurance and Maritime Law. 
 
 Roccus, Bynkershoek and Valin, are particularly noticed by 
 lord Mansfield, in his excellent observations in the judgments 
 of the court of king's-bench on Insurance cases. 
 
 The Consolato del Mare, Loccenius, (who I believe is meant 
 in Burrow's Law Reports by ' Coccenius,''*) and Bynkershoek, 
 are also frequently quoted by the present learned judge of the 
 Court of Admiralty. The Consolato del Blare he considers as 
 a book of great authority. 
 
 It is often said in Lloyd's that foreign authority is useless 
 to us, — but it should be generally known, that a learned judge, 
 
 * By Coccenius could scarcely be intended Cocceius ; — for neither father 
 nor son wrote on insurance — the father was an eminent French writer on 
 pubhc law and public rights ; — the son only edited his father's works.
 
 64 Of General Average. — Stevens. 
 
 but it is added, if they refuse, the master may pro- 
 m II Con. del (.g^d witliout it.'" Bccause it is presumed the master 
 
 Mar. c. !»!. i i • i • • 
 
 'DiConser- aiid his crcw have more experience m maritmie 
 va Q. van -^^-^iy^ than the merchants;" — and, Q. van Weytsen 
 
 Weyt. p. 8. , ' 1 1 • 1 • 
 
 Ord. Fran. says, ' becausc every one is most learned in his own 
 
 Vaiin,''po-^'^^ trade or calling." Jettison may be made, generally, 
 
 thier, Emer. \yi all cascs whcrc the ship is in distress : but the 
 
 r^^/v" . chief causes are to lisihten the ship at sea in a storm, 
 
 n Valin ut o ^ ^-1 N r ^ 
 
 sup. — or when pursued by an enemy (Ij, — or tor the 
 
 o Q. van purpose of floating her when she accidentally gets 
 
 "^^ ^ ' aground. In all cases of jettison where contribution 
 
 is expected, the goods thrown overboard must have 
 
 been stowed under the deck, none can be demanded 
 
 if the goods lie upon the deck, — though if saved 
 
 p For Laws «fe thcv must bear their proportion.'' But if goods got 
 
 Ord. &c, &c. 1 1 r .1 r • ^^- . ° ?!, 
 
 on deck tor the purpose or jettison, or to ease the 
 ship when in distress, be washed off the deck, this 
 is to be treated as a jettison. Another exception 
 has been made to contribution ; — the want of a bill 
 of lading, which it is said makes it presumable that 
 the goods have been put on board without the cap- 
 
 ;tp."n"§: tain's knowledge.' 
 
 Jettison & es- If on the jcttison being made, the ship continue 
 
 cape & sub- 
 wreck. Avliose legal knowledge cannot be doubted, (Mr Justice Law- 
 rence) has said, ' the opinions of foreign writers should have 
 great weight with us, as their doctrines form the greatest part 
 r 2 East's of our laws on the subject of insurance." It may be said with 
 Rep. p. 547. gi'eat truth, that before a person can be well-grounded in the 
 principles of insurance, he must have read and studied the 
 foreign ordinances and foreign writers, from whom we derive 
 almost all our knowledge on this (to us as a commercial na- 
 tion) most important subject. 
 
 (1) The throwing overboard part of the cargo, though of 
 course a jettison, is not to be made good by general average 
 contribution unless it be strictly for the purpose of effecting 
 the escape of the ship. This was so determined in a late 
 case ; where the captain of a Spanish ship, in order to pre- 
 vent a quantity of dollars from falhng into the hands of an 
 enemy by whom he was chased, threw them into the sea. 
 s 3 Bar. & The underwriters on the dollars were held to be liable for this 
 Aid. Rep. p. loss under the head of ' all other losses and misfortunes." 
 398.
 
 Of General Average. 65 
 
 her course, but be afterwards wrecked, what is sav- 
 ed from such wreck must contribute to make good 
 the jettison.' But on the contrary, if the goods jet- ' Leg. Rhod. 
 tisoned be fished up, and taken on shore, and the y,g quaj,''&c' 
 vessel proceeding on her voyage be afterwards lost, Le Guidon, c. 
 — the goods saved shall hot contribute towards such q. van vi^. p. 
 loss, because the loss of the vessel arose from an '^- , \','i- '" 
 
 • 1 » 1 • 1 -1 Peek. 240. 
 
 accident." And in like manner, lor the same reason, 250. For Ord. 
 if goods be put into boats or liohters to float the " Leg. Rhod. 
 ship when aground, or to enable her to pass over q. van Weyt. 
 any flats or shoals, and the boats be lost, this shall 'I: ^'^ , p 
 
 J _ \ ^ .' . Kaunes rr. 
 
 be considered as a jettison, and the remaining prop- Eq. b. i, p.i, 
 erty must contribute; — but if the ship should be ^ at' 
 lost and the goods in the boats be saved, then the to boats. 
 owners of such goods shall not contribute : for it is 
 said, the lightening of the ship was in consequence 
 of a voluntary and deliberate determination," and " _,^^^^ ^^J"^^ 
 was done for the good of the whole ; but, as in the 
 preceding case, the ship being lost was in conse- w Leg. Rhod. 
 quence of an accident.'" The master having had Le^"]^igb 55 
 just cause for the jettison shall be exonerated, but Q.'van Weyt. 
 it does not give rise to contribution unless it shall roccus De 
 save the vessel.'' ^^^^ "o}- ^^^ 
 
 It may appear almost unnecessary to observe, that ^^■, ^^^^.^^ 
 ship's stores thrown overboard, while the cargo is thrown over. 
 on board, must also be made good by a general con- ^^''''- ^f 
 tribution. (I) 19. ' " 
 
 ^ ^ Poth. p. ii, 
 
 §2. 1. 
 
 [11.] Damage done to the Cargo,^ by cutting Damage to 
 holes in the ship, or bii opening the hatches for the ^\^f°; 
 
 /• /y>^ • ^ •^- L ^y ^1 IMalyne, c 
 
 purpose oj effecting a jettison ; or by getting tlie 05. 
 Goods on Deck to heave overboard. Moiioy, §12. 
 
 timer, c. 12, 
 §41. 
 
 (J) Tlio value to be made good by general averas:© contri- ^ ^' P' 
 
 butioii is that at which the stores are or can be replaced. — x LgQ. Rhod 
 
 But when washed overboard or plundered the value to be paid ut sup. 
 
 by the insurer should strictly be the cost; that being the value ' Merces non 
 
 on which he received a premium. P'^T^""*'r.*r'^J 
 
 ^ y Leg. Rhod. 
 
 ut sup.
 
 QQ Of General Average, — Stevens. 
 
 Ord. Rot. 85. It is YQYY clifficult ill somc cascs (particularly in 
 
 Bilboa, 12. 13. , "^ • , i i • i \ . v • • . iT .u 
 
 France 'des regard to perishable articles), to discriminate whetn- 
 ^^;' }i- er the daiiin<io done to the cargo happens from these 
 
 V al. Com. ^ 1 • • • J 1 I 
 
 Q.jaii Weyt. causcs or lioui the shipping ot seas and the work- 
 E Jer. & i"g of the vessel ; but when these are clearly prov- 
 Poth. ut sup. ed to be the cause, there is no doubt that the loss 
 should be made good by a general contribution. 
 
 Damage to [ni-]^' DaMAGE DONE TO THE ShIP, by Cutting 
 
 ^ Vide Auth ^^^^^^ ^0 effect tt jcttisoii, or to let out the water. 
 
 ut sup. et inf. 
 
 Cutting or [iV.] CuTTING FROM, OR SLIPPING FROM An- 
 
 shpping cable. CHORS, to avoid running ashore or on the rocks, or 
 being run foul of by other shijjs ; or when run foul 
 of for the purpose of getting clear. 
 
 Cutting away |^y.]^ CuTTING AWAY THE MaSTS, SaILS, BoATS, 
 
 a lp^J j^j^q^ &c, ivhen the ship is in distress, and the general 
 
 2, §L safety appears to require such sacrifices. 
 Lei. Wisk^ ^1^ these two last sources of claim [iv, and v,] 
 
 i~ it may be remarked, that masters of ships should be 
 
 Ord. France, -^ i . . ' , , , . ^ ,, , 
 
 ifeFor. Ord. awarc that it is not merely the making use or the 
 passim. a^g Qj. ^\^Q knife on the masts, ropes, or sails of the 
 
 Q. van Weyt. . 'r.' 
 
 p. 5, also p. snip which constitutes a claim tor a general contri- 
 Emer. c. 12 butiou. — Nothing but a case of imminent danger 
 §41. will entitle the owner to make a claim of this na- 
 
 p. ii/§2.art.3. turc ; aiid the sacrifice must at least be the apparent 
 1 East's Term causc of cxtricatino; the ship from her perilous sit- 
 
 Rep. p. 220. . . t5 1 1 
 
 uation. l oreigners appear to expect that every mast 
 that is sprung, or sail that is split, when on a lee- 
 shore, should be made good by a general contribution; 
 and more particularly if they are afterwards obliged 
 to cut them away : but these losses may, and very 
 often do happen in the ordinary course of the voyage ; 
 and it would be well for them to know, that it is 
 not the custom of this country to allow such claims, 
 except perhaps in cases of very imminent danger ; 
 — and even then indeed a loss of this kind ought
 
 Of General Average. 67 
 
 not to be claimed as a general average, but is of the 
 
 nature of a partial loss of the ship.'' l?,^/^?^^ 
 
 .1 T 1 • /> r artial loss on 
 
 Some ot the foreign ordmances" say, that ii a Ships, part i, 
 cable be cut or slipt to sail with convoy, the value "^^ "'; t^""^ 
 shall be brought into a general contribution ; — but keep with con- 
 this is not the practice with us. ^°y- 
 
 With regard to the boats, it is said that they must B.ib"'<sS°"' 
 be cut away from the ling-bolts to which they are Q van Weyt- 
 lashed upon the deck, and thrown overboard.*^ For Casaregis 
 if outside the ship'' they are in the same situation '','sc ^6, n. 9. 
 
 !• II 11-1 iji J^mer. ut sup. 
 
 relative to the loss, as goods which are on the deck, a Ord. Rott. 
 and their value must contribute to a general average, J*)^^" ^^^^ 
 though it cannot be demanded in case of loss. If w^eyt. p. ii. 
 however they were properly lashed to the quarters^ 
 it is customary to consider the loss by cutting away 
 as general average ; but not so when hung to davits Boats on dav- 
 over the shiph stern, that being considered an inse- ''^^ °^ ^''^®^- 
 cure place for a boat. 
 
 When a mast is carried away or sprung, and in saiis and rig- 
 consequence, the sails and rigging which are hang- ^J,"f t^e^sffi 
 ing over the ship's side are obliged to be cut away, 
 some foreign authorities say that the value, after 
 being thus damaged, shall be made good by average 
 contribution.' But it should be remarked, ihat the f ord. Ko- 
 situation in which these articles are placed by the "jf^^^'^Q^j ''^*' 
 breaking of the mast, renders them of no value what- Copen. art i, 
 
 ^^*^^' others. 
 
 When the cables are cut, the masts cut away, &c, cabics or 
 to prevent the ship from foundering; at sea, and she ™=ists cut 
 
 A I o J 1 1 away and 
 
 is aiterwards run or driven on shore, and thereby ship subse- 
 becomes irreparable, — the loss occasioned by such ^"^.^"1^'^^ 
 cutting, (if considered at all as a general average 
 claim,) is not to be made good to the owner by 7iew, 
 with the usual allowance ; but he is to have only the 
 true or estimated value, as well as it can be ascer- 
 tained by the sale of the ship and materials saved, — 
 for this is his actual loss. («) 
 
 (a) Mr Stevens probably means that, the vahie of the cables
 
 68 Of General Average. — Stevens. 
 
 Materials ap- [vi.] SaILS, RoPES, AND OTHER MATERIALS CUT 
 
 siai'^ nir"oscs ^^ ^^^ M^^D at sea for the purpose of stopping a 
 leak, or to rig jury-masts, or for any purpose where 
 the general safely appears to require the sacrifice. 
 
 No authorities are requisite to show that this is a 
 proper subjeet of general contribution. 
 
 Loss by sell- [vil.] LoSS ON PART OF THE CaRGO obliged tO be 
 
 cafcTo.^^'^^ "* s<^^d for the purpose of paying the expenses incurred 
 in a foreign port, inhere the ship put in in distress, 
 to enable her to proceed on her voyage. 
 
 and anchors sacrificed is to be contributed for at the amount 
 which they would have been worth to the owner, had they 
 remained in the ship at tlie time of the wreck, and been saved 
 with the other materials. But why the deduction of a third 
 should not be made in estimating this value, does not appear. 
 Mr Benecke lays down an analogous doctrine as to a jettison of 
 goods, ill his chapter on adjustment of general average. He 
 says, after much preliminary discussion, 'If the goods thrown 
 overboard would have contributed according to their deterio- 
 rated value at the port of discharge, had they not been cast 
 overboard, equity requires that they should have been paid for 
 only at their reduced value, {or rather at the probable value at 
 which they would have been sold at the time and place of dis- 
 charge,) that being the real loss which the proprietor sustain- 
 ed.' He does not appear distinctly to lay it down as a practi- 
 cal doctrine, that in estimating the value at which goods thrown 
 overboard are to be contributed for, a conjecture may be made 
 as to the probable subsequent damage the goods would have sus- 
 tained, had they remained on board of the ship until her arrival 
 at the port at, or in reference to which, the adjustment is made. 
 Nor do I understand Mr Stevens to intend, in the above pas- 
 sage, that a conjecture may be made as to the probability of 
 the cables and anchors having been absolutely lost, had they 
 not been thrown overboard. Such a doctrine would be attend- 
 ed by infinite difficulty, in its practical application, nor is it 
 countenanced by any case or practice. The doctrine is, 
 as it is laid down in innumerable cases, and I believe univer- 
 sally acted upon in practice, that goods, or a cable or anchor, 
 or, in short, any subject sacrificed for the general benefit, is 
 to be contributed for at the value at which it might be sold at 
 the place where, or in reference to which, the adjustment is 
 made, supposing it had arrived there in the condition in which 
 it was when sacrificed. — Ed.
 
 Of General Average. 69 
 
 It appears but reasonable that the sale of the cargo Sale must be 
 should be adopted as the last resource, ° both from "^^^^^^'t- 
 there being no means of consulting the owner, and § xx. 
 from the apparent impropriety and injustice of dis- 
 posing of another's property without his consent ; — 
 but in a case of urgent necessity, such as this, the 
 maritime law will justify the master. (1) It then 
 becomes necessary to make some inquiry as to the 
 
 (1) From the judgment of the Admiralty court, on the case 
 of the Gratitudine,^^ and from a late adjudged case in the h 3 Rob. 
 court of king's bench, i there appears to be no doubt as to the Adm^Rep. 
 right of the master to sell part of the cargo in a foreign port, P- ~^^- 
 in case of absolute necessity, and to enable the ship to prose- ' ^ Stark. 
 cute the voyage. It was contended in the former case, tliat ^' ^' 
 the master had no right to hypothecate the cargo for the repairs 
 of the ship; and also, that he could not bind the proprietors 
 of the cargo in any case. But the learned judge determined, 
 that in case of 'instant, unforeseen, and unprovided neces- 
 sity, the character of agent and supercargo is forced upon the 
 master.' And to show his full and complete control over the 
 cargo, [at sea,) the judge instanced the case of jettison, where- 
 in, if the lives of the crew cannot otherwise be saved, he may 
 throw the whole cargo overboard; — the only obligation will 
 be, that the ship should contribute its average proportion -.^ — k 3 Rob. 
 by which means the little that is to be taken as the remnant of Adm. Rep. 
 the cargo is preserved. And, in case of ransom, (though not P- ^^^■ 
 legal in this country,) by the general maritime law, the master 
 could bind by his contract the whole cargo. The books (Sir 
 Wm Scott observed) overflow with authorities, on the right of 
 the master to sell part of the cargo — but it is to be noticed 
 that this power does nt»t extend to the jvhole, because it cannot 
 be for the benefit of the cargo that the whole should be sold, 
 to repair a ship which is to proceed empty to the place of 
 destination. — But the master may hypothecate the whole ;^ — i 3 Rob. 
 which the learned judge considered as equivalent to the sale Adm. R^p. 
 of a part.'^ P- -'^3. 
 
 On a former occasion," he stated generally, that the mas- "..^'^'^"^' P' 
 ter, under circumstances of necessity, has a right to hypothe- 
 cate either ship or cargo, or to sell the cargo, or to throw any ^^^^^^ °j^g 
 part of it overboard. p 092. 
 
 In the course of the judgment on the Gratltucline, Sir Wm Duty of the 
 Scott observed, that where a ship could not proceed on her master as to 
 voyage the master was empowered to tranship the cargo ;° yet, transhipment. 
 
 he added, (and it is very material to be known in Lloyd's) — ° Leg. Oler. 
 
 art. 4, 
 Ord. France,
 
 70 Of General Average. — Stevens. 
 
 subject of restitution. This should, like all other 
 cases where a sacrifice is made, be treated as a jetti- 
 
 & Valin, &c, 'though empowered to tranship, — lie is not hound to tran- 
 o'h^'^'a' t ^'"'1' ■ — "** such ohhgatiou exists according to any known rule 
 
 Roft &c. of the maritime law.' (r/) 
 
 y iMiig. pp. It should also be well understood that the master is not jus- 
 
 14. 104. tified in breaking up the adventure by sellin"^ the cargo at a 
 
 ~jgn P' foreign port, altliough it be imjjossible to prosecute the original 
 
 Abbott p. 251. voyage, and although a sale of the cargo is the most beneticial 
 
 course for the owner. Lord Ellenborough said, 'to allow 
 
 the master such an unlimited dominion over the ship and 
 
 cargo would tend to the destruction of all commercial adveu- 
 
 P 2 Stark. tures.'I" (ft) 
 
 Rep. p. 3. The Cunsolato del Mare states, that if the master be in want 
 of money for the use of the vessel, and cannot procure it, and 
 is in a place where there are no resources, ('?« loco sterile,'') 
 then, if the merchants (who are with their goods) have no 
 money, they must sell some merchandize for the purpose of 
 freeing the vessel. — The merchant shall however be convinc- 
 ed that the proceeds are for the use of the vessel ; i. e. to en- 
 q II Con. del able her to pursue the voyage. i The Ord. of Bilboa says, if 
 Mar. p. 10.5. the captain cannot obtain money on credit, or on bottomry — 
 •■ Ord. Bilboa, he may sell part of the cargo to pay his expenses."" 
 § XX. 
 
 (a) According to decisions on this subject, both in England 
 and the United States, in case the original ship is disabled, 
 the master is bound to tranship the cargo to the port of 
 destination, if a part or the whole of it remains in a suitable 
 condition for transhipment, and another ship can be procured 
 at or near the place where the cargo may be ; and the trans- 
 shipment is obviously and undoubtedly expedient under the 
 circumstances. Hudson v. Harrison, 3 Brod. &l Bing-. 105, 
 S. C. b ; B. Moore 288, cited 1 Phil. Ins. 412 ; Hunt and 
 others v. Roy, Ex'tors, &-c, 5 M. & S. 47 ; Clark v. Mass. F. 
 & M. Ins. Co., 2 Pick. 104 ; Ryland v. Com. Ins. Co., 6 Pick. 
 131 ; Treadwell v. Union Ins. Co., 6 Cowen, 270, all cited 2 
 Phil. Ins. c. 17, § 4. And the law is the same in France, 2 
 
 , Val. Com. 10.5. — Ed. 
 
 (b) Mr Stevens probably does not mean to say, that no cir- 
 cumstances will justify the master in selling the cargo and 
 breaking up the voyage, for the decisions to the contrary are 
 so numerous and conclusive, that it seems to be quite super- 
 fluous to cite them, the establishment of the doctrine being 
 no longer a subject of discussion. See cases cited 1 Phil. Ins. 
 409 ; Story's Abbott on Shipping, ed. of 1829, p. 10. And 
 certainly the impossibility of prosecuting the adventure is a
 
 Of General Average. 71 
 
 son — for it is the same thing to the merchant, when 
 the goods are taken from under his control, whether 
 they are sold or thrown into the sea. (a) 
 
 But the question has arisen, — where there is a Case of profit 
 profit on the sale of the goods instead of a loss, — o" sales- 
 who is to have the benefit of it ? This question is 
 readily answered if we treat the case on the broad 
 ground of considering it as a jettison, and by which 
 we shall put the proprietor in the same situation as 
 the proprietors of the other part of the cargo, viz. by 
 paying him the estimated proceeds at the port of dis- 
 charge, as if his goods had arrived. Thus, it is sub- 
 mitted, that the parties who would have borne the 
 loss ought to receive ihe profit ; and which will be 
 done by deducting the proportion of the amount from 
 
 (o) Mr Stevens doubtless does not intend to say, that a sale 
 of any part of the cargo justified by the necessity of the case, 
 is, in all instances, to be treated as a jettison ; since the neces- 
 sity arising from damage that is particular average, justifies 
 a sale as fully as that arising from circumstances giving occa- 
 sion to general average. Such a sale has not, in fact, in itself, 
 the characteristics of jettison ; it is more analogous to bot- 
 tomry or respondentia ; it is the obtaining of a loan ; the 
 necessity of the case imposes upon the master the mode of 
 raising funds, so that it is, in respect to the oAvner of the goods 
 sold, a forced loan, his property being taken, that is, in legal 
 construction, borrowed, either for the benefit of the shipowner, 
 separately, or for his benefit jointly with those interested in 
 freight and cargo generally, or partly on his separate account, 
 and partly on the general account. As the law justifies the 
 sale and raises an implied contract, the true character of the 
 transaction will be better conceived by supposing the owner 
 of the goods sold to be present, and to consent to the sale on 
 an agreement for reimbursement. — Ed. 
 
 strong circumstance in justification of the sale by the master, 
 but not conclusive in all cases, since he may be able to com- 
 municate with the owners and shippers, and wait for tlieir in- 
 structions. Whether the case is one of such necessity as will 
 justify the master in making a sale of the remains of the ship 
 and cargo, will depend on its particular circumstances. — Ed.
 
 72 Of General Average. — Stevens. 
 
 the average charges, in precisely the same manner as 
 the proportion of the loss is always added to them. 
 For, it may be asked, — on whose accomit, or rather, 
 on what account, does the master dispose of the 
 goods ? The answer is, — certainly not on account 
 of , the proprietor of them. He is guaranteed against 
 all possible loss, and therefore he can have no con- 
 cern with the event of the sale (1). The master in 
 fact having no other means of raising money, takes 
 these goods indiscriminately from the rest of the 
 cargo, and disposes of them for the general benefit of 
 all concerned, for the purpose of setting the ship for- 
 ward on her voyage ; and by treating this as a jetti- 
 son justice is done to all parties. We are aware that 
 the opinion of one of the learned judges of the court 
 ' 3 Bar. & of kiug's bcnch is contrary to this ;' but it is submit- 
 ^^oo^^^'' ted with great deference that it is on mistaken 
 grounds : that learned person supposing that the 
 owner of the ship would put the profit in his pocket, 
 and thus that the case might occur ^vhere the master 
 of the ship, (his servant,) might dispose of the cargo 
 for his benefit, (a) 
 
 (1) Perhaps it may be useful to mention, that in a late case 
 (not yet reported) the court of king's bench determined, 
 where goods were sold by the master for payment of the 
 necessary expenses, (as above) that the proprietor of the 
 goods so sold could not sue his underwriters, but that his 
 remedy was against the owner of the ship. We imagine it is 
 not to be inferred from hence, that the owner is accountable 
 to the consignee for the proceeds of the goods, and not for their 
 market price at the port of discharge, as is customary, for this 
 was not the question at issue ; but tbat this is applicable where 
 the owner of the ship fails in the interim of her arrival ; in 
 which case the underwriters on the goods would not be ac- 
 countable for the loss, as it did not arise from any of the perils 
 insured against. 
 
 (a) If it be assumed that when the goods are sold by the 
 master in the case put, the implied contract arising on the 
 transaction is merely a guaranty to the owner of the goods
 
 Of General Average. 73 
 
 If the ship arrive at her port of destination, the 
 loss occasioned by the sale at the intermediate port 
 
 sold that he shall not be a loser by the proceeding, as Mr 
 Stevens states it to be in the text, then the owner of the goods 
 will be entitled to the profit, or surplus, if such accrue, over 
 what they would have sold for at the port of destination. The 
 objections to giving the transaction the character of a jettison 
 are stated in a preceding note. It does not appear upon what 
 grounds it can be assumed, that the transaction has the es- 
 sential characteristics of a jettison. If so, then no inference 
 from such an assumption can be made. Setting aside the 
 part of Mr Stevens's view of the case founded on that assump- 
 tion, then, the question will be whether the owners sell the 
 goods of a shipper to raise funds, upon an implied guaranty of 
 indemnity merely, or upon an implied contract to account for 
 the goods at their net market value at the port of discharge. 
 The case cited by Mr Stevens proceeds on the ground that 
 the implied contract in such case is one of indemnity merely, 
 and there are certainly not wanting reasons for this construc- 
 tion. In the first place, the loan is a compulsory one, as far 
 as the owner of the goods is concerned, and though it is justi- 
 fied by the imperious necessity of the case, yet if he could 
 have his election, jierhaps he would not be willing to part 
 with his property on the mere responsibility of the shipowner ; 
 in any doubt, therefore, the construction should be very liberal 
 in his favour. Again, it is enough that the shipowner has the 
 liberty to take the shipper's property to raise funds with, 
 without allowing him to make a profit by so doing. Mr 
 Stevens says the master, that is the shipowner, does not put 
 the surplus or profit of the net sales at the intermediate port 
 over what they Avould have been at the port of discharge. 
 Why does he not, he is liable to account for the goods at a 
 less amount than their actual net proceeds'? If goods sell 
 for $1000 at an intermediate port, that would have sold for 
 only §600 at the port of discharge, and the proceeds are ap- 
 plied in repairing the ship, then, if the owner is liable to ac- 
 count for only $600, he in this way is enabled to make repairs 
 at an expense of $600, which are worth $1000, which is in 
 effect pocketing the difl:ercnce. Supposing the repairs to be 
 general average, or partly general and partly particular aver- 
 age, the same remark is applicable, excepting that the owner 
 of the goods sold participates in the benefit, as far as he is 
 liable to contribute to the general average. Tlic reason stat- 
 ed by the court, therefore, in the case cited by Mr Stevens, 
 against allowing the owner of the goods sold only what tliey 
 would have been sold for at the port of discharge, in the case 
 
 10
 
 74 Of General Average. — Stevens. 
 
 will also become a subject of restitution. But if 
 the ship should not arrive in consequence of a new 
 accident, and she should discharge her cargo at the 
 port where she is obliged to put in, and she can pro- 
 ceed no farther, then the value should be that of the 
 like goods at such port, — for it is said in case of 
 jettison — ' the value is, that of the price current at 
 the place of discharge where the contribution is reg- 
 ulated, which is either the port of destination, or the 
 port at which the vessel is obliged to discharge, in 
 consequence of a new accident, which has prevented 
 t Pothier, her ffom proceeding any further on the voyage.^ 
 
 Sup. Con. d. . J , . i ^ 1 1 r ..I. X- 
 
 L.n. i2«. And this appears reasonable, lor the person irom 
 under whose control the goods are taken, for the 
 benefit of others, ought not to be placed in a worse 
 situation than those whom he has been the means of 
 benefiting. 
 
 Freight of [vUL] FrEIGHT OF THE GoODS Sold for the 
 
 goods sold, above purpose. 
 
 It appears clear that in this case the owner of the 
 ship ought not to lose his freight — any more than 
 the proprietor of the cargo the profit on his goods. 
 
 Expenditures It will occur to cvcry ouc in the habit of consid- 
 fmbSseVat cring qucstious of this nature, that there is an es- 
 aiieventsjbut sential difference between a claim for Restitution 
 
 jettison to be j r r> ^ J.^ c 
 
 contributed ^ud ouc lor Recompense. In the lormer case, e. g. 
 for only in [^i that of jettlson, if at any subsequent period of the 
 
 case of prop- , ^ '. , ^y . ^ , J^ , , 
 
 erty being sa- vojagc the rcmamdcr 01 the cargo be lost, there 
 ^*^^- is no claim to replace that part which was jettison- 
 
 ed — and the same if the ship be lost before the 
 articles sacrificed were replaced. But in the case 
 of expenses incurred with a view towards the general 
 
 supposed, namely, that it might hold out a temptation to the 
 master to sell the goods, certainly is of some force. — Ed.
 
 Of General Average. - 75 
 
 benefit, it is clear that they ought to be made good 
 to the party, whether he be an agent employed by 
 the master in a foreign port, or the ship owner him- 
 self. The former is a case lying strictly within the 
 adventure ; for if a part be sacrificed and the re- 
 mainder be lost, — the whole is lost. But in the 
 latter case, the expenses are extraneous, and were 
 incurred under an implied obligation of indemnity on 
 all the parties ; — which is one of the duties each 
 of the parties who are joined in a sea adventure 
 takes upon himself. 
 
 The following items come under the head of Re- 
 compense : — 
 
 [ix.] Pilotage on putting into a port in distress, piiotage. 
 
 [x.] Expenses or unloading the Cargo, Unloading 
 either for the purpose of repairing the ship, or for *^^''^°- 
 floating her when she accidentally gets aground. 
 
 This is to be made good by general contribution ; 
 because the ship, cargo and freight are equally inter- 
 ested : — the 5/wJ9 that she maybe repaired; — the 
 cargo (in which is the freight) that it may be pre- 
 served. It is different as respects the unloading the 
 ship^s stores, after the cargo is out, for with them 
 the cargo and freight can then have no concern. 
 
 [xi.] Expenses of getting the ship off the Getting off 
 
 GROUND. the ship. 
 
 Pothier observes, after Valin," in case of tempest, u poth. Sup. 
 chase, or other accident : If to prevent shipwreck Con. a. l. n. 
 or capture, it be necessary to run the ship into a vai. Com. 
 harbour, not the place of her destinatioii, and which ^''^- ' ^^^ ^^^ 
 cannot be entered without discharging part of her ^ip^*^*^"^'"" 
 cargo, this, as well as the expense of getting her 
 afloat (if on shore) are general average. But he 
 afterwards justly observes,"^ — that when for the pur- v poth. ut 
 
 sup. n. 146.
 
 76 ' Of General Average. — Stevens. 
 
 pose of running the ship into her port of destination 
 it is necessary to lighten her, the master, who knew 
 or ought to have known the capacity of the port to 
 which he a\ as bound, is in fault for having too heav- 
 ily laden her. It is therefore in this case the fault 
 of the master, and in consequence not general av- 
 erage, (ci) 
 
 Extrahands [XII.] '"HlRE OF EXTRA HANDS TO PUMP THE 
 
 w 1 Easts SHIP, (ffter her having sprung a leak. 
 
 Terna Rep. p. 
 
 "' ' r. fxiii.] All EXTRA charges incurred for the 
 
 Expenses of LJ ,, /»• • t 
 
 putting into a general good, on puttmg into a foreign port in dis- 
 
 portofneces-^^.^^^^. 
 
 The common law,^ as far as it has had cognizance 
 ^ Le Wisb ^^ these cases, considers that all the foregoing charges 
 p. 55. together with the warehouse rent and reloading charg- 
 
 WeUwoo/tiL 6S of the cargo, ought to be made good by a general 
 20. contribution. The foreign laws are to the same ef- 
 
 &c. °™ "' feet. No regular judgment has been given by the 
 Re^ ^K "b court of Admiralty ; (whose peculiar province it is 
 407. to determine these questions,) but on one occasion 
 
 Storing and its bearing appeared to be towards a confirmation of 
 go°^ ing car- ^j^^ abovc :^ ou another occasion, however, it is ad- 
 2 3RobAdm iT^itted that in some cases ' the expenses severally 
 Rep. p. 255. may be matter of simple average;''' by which ap- 
 pears to be meant, according to the practice of 
 Adra. Rep. p. Lloyd's, and to the customary decision of the regis- 
 ^9^- trar and merchants in such cases, that all the charges 
 
 incurred expressly for the general benefit are to be 
 placed to the general average; those incurred for 
 the preservation of the goods, to the cargo ; and the 
 outward charges, whereby the ship is again set for- 
 ward on her voyage, to the freight. But if this be 
 
 («) In many ports it is the ordinary course of navigation 
 to lighten vessels, to enable them to pass a bar in entering. 
 In such case the damage to goods put into lighters in the or- 
 dinary course of landing them, is not general average. — Ed.
 
 Of General Average. 77 
 
 consumed by the wages, then these charges must be 
 borne by the ship and cargo alone. 
 
 None of these charges ought to be made good by 
 a contribution, if the ship put into a port merely in 
 consequence of contrary winds, or for the purpose 
 of procuring water and provisions ; in both these 
 cases the charges come under the head of petty av- 
 erage, (a) 
 
 [XIV.] The sum awarded, or agreed to be Bringing a 
 
 o r" 1 • • distressed ship 
 
 PAID TO SHIPS, BOATS, PILOTS, &C, JOV bringing « into port. 
 
 ship^ ivhe7i at sea in distress, into port ; or for wi- 
 loading the ship and getting her off the ground when 
 forced on shore. Also the charge of taking off 
 anchors, cables, &c, and rendering assistance 
 generally.'' ,^ ^t^t- 1^^ 
 
 T • 11 1 • 1 1 /■ Anne, c. 18. 
 
 It IS not so generally known as it ought to be, (or 3 Geo.i,c.i3. 
 if known it is not practised,) (1) that a reduction jjj ^'^j'q^^'^' 
 may be obtained from the amount of salvage in al- gjj^ ^^ ^^^^^ 
 most all cases of vessels being driven or forced on free of duty in 
 shore in the kingdom of Great Britain. By the to'^jiay salvage 
 statute of the 5 George I, c. 11, ^ 13 (made in ex- expenses. 
 planation of that of the 12 Anne, c. 18,) it appears 
 that the salvage and charges may be reimbursed out 
 of a sale of part of the cargo dutyfree. Which is in 
 effect, — a reduction of such duties from the amount 
 of the salvage and charges. It is not always for the 
 interest of the proprietor of the cargo, that part of it 
 should be sold at the time of the stranding for this 
 purpose, but this difficulty may be obviated, for the 
 
 (a) The usage in the United States is to consider these ex- 
 penses general average, inchiding the wages and provision of 
 the crew, from the time of turning off the course of the voyage, 
 until the vessel is ready to proceed again on the voyage. — Ed. 
 
 (1) It is of material consequence that underwriters should 
 be aware of this, as they are ultimately the sufferers when it 
 is omitted to be taken advantage of; for as the owner of the 
 ship and the proprietors of the cargo look to them for their 
 reimbursement of the salvage, they are not interested in the 
 reduction of the amount.
 
 78 Of General Average. — Stevens. 
 
 average claim may be adjusted by means of an esti- 
 mate of the duty being procured at the Custom-house. 
 
 Salvage for 
 re-capture. 
 
 [xv.] Salvage to men of ivar, and to privateers 
 FOR RE-CAPTURE froM the enemy, — and charges 
 thereon (1). 
 "^ ''i!-.??-^!"' The salvao:e fixed by law,'' to be paid on the re- 
 
 c. 100, § 3!). /• r) • • 1 .1 1 • 5 U- 
 
 capture of British property by king's ships, is one- 
 eighth ; (2) — and by a private ship of war, one- 
 sixth, of the true value of the property so retaken 
 from the enemy. When a ship has been voluntarily 
 abandoned by the enemy, the salvage is not limited 
 by the prize act. A moiety has in some cases been 
 'd Edwards's given.'' — Nor is the salvage limited in extraordinary 
 go.'"' ^^' ^' cases, such as ships being abandoned at sea, &:c. 
 
 Aljuses in tlie ^j^ Much abuse has prevailed in the West Indies in cases 
 
 in cases of ^ ^^ capture and re-capture : the practice was, till lately, to sell 
 
 re-capture. both ship and cargo to pay the amount of salvage ; and the 
 
 consequence often was, that the proceeds lay for months, and 
 
 even years, in the hands of the ogcnt (as he is called) of the 
 
 Vice Admiralty court, who thus made it his interest to put an 
 
 end to the adventure ; and this even in cases where ships have 
 
 put in in distress and when tliey might have been repaired at 
 
 tj '^^V a small expense and proceeded on the voyage. e It might be 
 
 useful, however, if it were generally known, that in case of 
 
 re-capture the property by law reverts to the original owner, 
 
 ' and is only pledged to the re-captor for the payment of the 
 
 charge for salvage ; which being done, the owner is entitled to 
 
 f Stat 29 Geo. restitution. ^ The re-captor has no right to sell the property. 
 
 43 Geo. Ill If there were any difference about the value, the court would 
 
 c. 160. order a commission of appraisement, s when so much of the 
 
 s Lord Mans- ^^^ff'^ might be sold as would pay the amount of salvage. In 
 
 field. explanation of this, and to prevent abuses of this nature, the 
 
 2 Burrow's Privy Council on the 15th May 1813, published an order in 
 
 Rep. 1^09. i^jjg Gazette, prohibiting the sale of ships and their cargoes for 
 
 the payment of salvage. 
 
 The present venerable and learned judge of the Admiralty 
 court has noticed in terms of reprobation, the frequent appli- 
 cations made to the Vice-Admiralty courts in the West Indies 
 h 3Rob.Adm. for the sale of vessels and cargoes ;h (alluding to cases where 
 Rep. p. 260. condemnation had been procured of vessels not being sea- 
 worthy.) — this he understood to be a matter of great com- 
 
 l?^'*^-/v"f plaint. 
 XIV, & Val. ' 
 
 Com. I. iv,tit. (2) The rule in France is, in case of re-capture, to give a 
 9, art. 2G. third of the value of the property salved to the re-captor.'
 
 Of General Average. 79 
 
 [xvi.] Money or goods given by neutrals {as ^°^"j'P/"'"^rH 
 regards Great Britain) to an enemy ^ as a composition and ransom. 
 to release the ship and the remainder of the cargo.^ k Leg;. Rhod. 
 
 The giving of money or goods to a pirate to release i[cc7^.deiM. 
 a ship which he had captured was, as will be seen c. 227. 
 
 - ,i . . , J^ . . Le Guidon, b. 
 
 by the relerences in the margin, a very ancient source 1. 
 of general contribution; and it was formerly the ^j^j^^^^y*- 
 practice to ransom British ships, when captured by Ord. Fr. &c. 
 an enemy. This was done by delivering to the pj'i'^^§2|ar't.L 
 enemy what was called a ransom bill ; which was Emerigon 
 considered as a contract of the law of nations,' and authors cited 
 actions were maintained on it in our courts of com- ^^y 'i''"- 
 mon law. It is now by statute"' made illegal to ran- p/^d\''ur Nat' 
 som any British ship taken by the enemy. This p. iv, c. 4. 
 statute it is said has put an end to all questions on i(f"§^233'"'*'' 
 the law of ransoms." And from its comprehensive Grotius, 1. in, 
 words, it would seem that pirates as well as bellig- ^' 22 Ge6. iii 
 erents are intended — for the words are, ' the sub- c. 35. 
 jects of any state at war with his majesty, or any 'l^^^^^^^^' ^' 
 person committing hostilities against his majesty's 
 subjects.' 
 
 [xvii.] Charges incurred in obtaining the re- Expenses of 
 LEASE of a ship which had been unjustly detained. reclaiming. 
 
 Many late decrees of the Admiralty court against 
 foreign ships brought in and detained by British 
 cruisers have been, that the cargo shall bear all the 
 expenses. It may be submitted, that in most of 
 these cases the expenses ought not to be eventually 
 borne by the proprietors of the cargo alone, but that 
 they should be afterwards apportioned on the whole 
 interest at risk ; (the whole being benefited by the 
 release ;) and thus be made a subject of general 
 contribution. 
 
 Other subjects of average contribution may occur, Loss by 
 such as, — LOSS of exchange on bills, passed by the ^^^ '^"^''' 
 master on his owner for the disbursements, on put- 
 ting into a foreign port in distress ; maritime in- JJ"^"^ '"'
 
 80 
 
 Of General Average. — Stevens. 
 
 TEREST on bottomry-bonds (1) obliged to be given 
 Interest. under similar circumstances ; Interest on Advan- 
 ces, -(2) — and in general, it may be said, that all 
 EXTRAORDINARY CHARGES proceeding from endea- 
 vours to preserve the ship and cargo, and the damage 
 or the loss resulting from the measures taken for that 
 o Wesk. purpose," are fit subjects for contribution. 
 
 Consultation The ancicut laws prescribe certain forms to be 
 and forms! gouc thi'ough whcii it is ncccssary for the general 
 preservation, either to jettison part of the cargo or 
 sacrifice part of the ship, &c ; but these rules have 
 been seldom strictly adhered to — and when they 
 have, they have only served to induce a supposition 
 of fraud. Targa, a magistrate at Genoa, (the author 
 of Ponderazione sopra la Contrattazione Maritima,) 
 says that during sixty years of his practice he had 
 known only five cases of regular jettison, all of 
 which were suspected of fraud, because the forms 
 p Enierigon, had bccu too Well obscrvcd.^ (a) 
 
 torn, i, p. G05. ^ 
 
 (1) Before this charge is admitted in a claim for general 
 average, it should be clearly shown that the transaction is 
 bo/ia fide, and that the bond was not merely given as a col- 
 lateral security for payment of the bills on the owner, as it is 
 often done. Also, in case of the subsequent loss of the ship, 
 it should be noticed that the sum for which the bottomry-bond 
 is given ought to be deducted from the average charges, — 
 that is, if the whole sum was raised on bottomry, there is no 
 claim for average at all ; and of course there is no claim for 
 the maritime interest, for the lender runs the risk on that as 
 well as on the principal. 
 
 (2) The merchant who advances money for average charges 
 in a foreign country often makes a charge of interest if the 
 vessel remains long in port, which must be apportioned on the 
 average charges. Underwriters have objected to this, on the 
 ground that they are not liable to pay interest ; but this is 
 erroneous. For when it is said that underwriters are not 
 liable for interest it is only meant to extend to interest on 
 claims on policies. 
 
 (a) Consultation of the crew is not absolutely requisite by 
 the laws of tlie United States. Story's Abbott, Ed. of 1829, 
 p. 345, and note. 1 Phil. Ins. 332. — Ed.
 
 Of General Average. 81 
 
 The general principle to be adhered to by the 
 master is, to consult the most experienced of the 
 crew and the supercargo (if there be one on board) — 
 and to make as minute an entry in the journal or 
 log-book as the nature of the case may require ; and 
 immediately on his arrival in port to note, and as 
 soon after as possible extend his protest ; — for it is 
 not only proper that he should enter his protest on 
 arrival, but he should extend it also whilst the occur- 
 rences of the voyage are fresh in his memory. 
 
 Article 2. Of those Claims for General Average 
 which are disputed or doubtful. 
 
 [a.] The first question is one of great im- Voluntary 
 portance to be determined ; — it is that of a ship case"of"pern 
 purposely run ashore to prevent her foundering at of shipwreck. 
 sea or driving on the rocks, and which is afterwards 
 got off with damage and arrives at her port of des- 
 tination. The question is, — Whether the repairs of 
 the damage sustained by the Ship, are a ft subject 
 for General Contribution ? (a) 
 
 The foreign ordinances include this case under 
 the head of general average ; for in those ordinances 
 where the specific case is not mentioned it is im- 
 plied.'' They derive it from the Rhodian law,' ac- i vide Ord. 
 
 France. 
 
 (1) The sections ix, x, xi, of the ordinance of Konigshurg 3 5 1' 
 are recommended to the perusal of the lawyers ; as they may Ord. Ant. 
 probably throw some light on the lately litigated subject, of § 4. 
 the extent of the ports of Pillau and Konigsburg. The author ^'v^'c vm,'^ 
 does not recollect that this ordinance was once alluded to ^^^ j_ 
 during the pleadings in these causes. Ord. Copen. 
 
 («) It will be seen in the notes to Benecke on Average, that ^^- ' Av.' § 5. 
 the laws of the United States recognize the damage occasion- ^^f, ^^^^a 
 ed by voluntary strandmg m certain cases to be a proper sub- Marsh, p. 542. 
 ject for contribution. See 1 Phil. Ins. 338. 2 id. c. 15, § 2, 
 No. 14. — The law and practice seem to be substantially the 
 same on this subject in England and the United States; that 
 is, the voluntary stranding of the ship is general average, 
 but not the mere steering her to a less dangerous place for 
 stranding, when she is inevitably driving to the shore. — Ed. 
 11
 
 82 
 
 Of General Average. — Stevens. 
 
 cording to the literal meaning of the maxim before 
 quoted — Nemo debet locvpletari aliena jacturd. 
 But this maxim, as has been before observed, must 
 not be construed literally. On the article in the 
 ordinance of Copenhagen, Magens remarks, ' The 
 meaning here seems to be, that if a leaky or sinking 
 ship voluntarily and deliberately be run ashore to 
 save the lives and goods, the damages received under 
 water shall come into a gross average ; which (he 
 adds) is a reasonable and nice distinction.'' The 
 Consolato del Mare and Roccus,' say, — that if to 
 Mar. c. i;t2, avoid a total loss, the captain and crew should judge 
 D^naf°nor' ^^ propGi* to ruu the ship ashore, the damage thereby 
 ix, n. 164. occasioned, whether to ship or cargo, will be a gross 
 average. Weskett merely states the case, and gives 
 no opinion himself on the subject," but there is no 
 doubt that he was favourable to it, as Magens also 
 was. It appears (from manuscript statements in my 
 possession,) to have been the practice of Lloyd's in 
 the time of Weskett. 
 
 With these authorities before us, (1) we may per- 
 haps be thought hasty in immediately rejecting this 
 doctrine as unreasonable and unfounded, particularly 
 when some of our best-informed lawyers are also 
 favourable to it. (2) The writers of the present day 
 say nothing conclusive, unless what Mr Serjeant 
 
 * 2 Magens, 
 
 p. 332. 
 
 t 11 Cons, del 
 
 " Weskett, 
 art. ' Gen. 
 Av.' p. 252. 
 
 " Marshall, 
 p. 20. 
 
 "^ Roccus de 
 Assec. Not. 
 Ixxx, n. 309, 
 310. Vide 
 Stracca. de 
 Mercat. tit. 
 ' De Nav.' 
 n. 24. 
 
 (1) ' The ordinances of other countries are not, it is true, in 
 force in England ; but they are of authority, at least, as ex- 
 pressing the usage of other countries upon a contract which is 
 presumed to be governed by general rules, that are understood 
 to constitute a branch of public law."' 
 
 ' In matters of insurance, and shipping,' it is said,^ 'judg- 
 ment is to be given according to the maritime laws and ordi- 
 nances, and according to the customs observed amongst sea- 
 faring people' — [Et maris consuetudincs sunt servanda;.) 
 
 (2) Two cases of this nature occurred a year or two since, 
 and the opinions of two of the most eminent practitioners at 
 the bar were separately had on them ; from which it appear- 
 ed, that they had no hesitation in considering them as cases of 
 general average claim.
 
 Of General Average. 83 
 
 Marshall says, under the head of ' loss by perils of 
 the sea,' be deemed so. After speaking of a volun- 
 tary stranding of the ship, he says, ' A stranding 
 may be followed by a shipwreck, in which case it 
 becomes a total loss ; or the ship may be got off in 
 a condition to prosecute her voyage, and then the 
 damage sustai7ied, and the expenses incurred, will 
 be only a partial loss of the nature of a general 
 average.' 
 
 In the absence of modern authority, we have only 
 argument against it ; but this is strong. The foun- 
 dation of all claims for a general contribution is jet- 
 tison of the cargo ; the rules therefore which govern 
 m enforcing this well-known law, should be applica- 
 ble to all other cases of general average claim. If 
 we examine the above case, we shall find that it has 
 nothing in it in common with a jettison: — For, 
 first, — a jettison takes place, in consequence of 'a 
 voluntary and deliberate determination ;''' and, se- % vide supra, 
 condliL — a particular thine; is selected to be sacri- ^rt. i. [i.] As 
 
 o 3,utiioritiC3 
 
 ficed for the general safety. — In the case before us, cited. 
 however, there is no time for meditation ; there is 
 no specific thing selected to be given up to save the 
 remainder ; — there is indeed no alternative. For, 
 whatever maybe assumed after the ship is in a place 
 of safety, — in every case of this kind, it is for the 
 preservation of life, that this act is resorted to, and 
 not for that of the ship and cargo ; and of this, those 
 who have been in similar situations are aware; — the 
 result may be beneficial, but should not the intention 
 determine the nature of the claim ? Put the extreme 
 case, of a ship in a storm finding herself completely 
 surrounded by breakers, and every instant expecting 
 to be dashed to pieces ; — in this most perilous situa- 
 tion the master and crew think it prudent, instead of 
 suffering the wind and the waves to drive her, — 
 themselves to run her upon the rocks. — The ship 
 fortunately holds together, the weather moderates,
 
 84 Of General Average. — Stevens. 
 
 and she is got off into smooth water. — Now, what 
 is there in this case that will apply to that of a jet- 
 tison ? — Only this, — the ship was ' in distress.' 
 But we look in vain for the other requisites : — ' the 
 mind, and agency of man,' were not employed, — 
 nor was there, in any sense of the word, a ' volunta- 
 ry and deliberate' selection of ' a particular thing' to 
 y Vide supra, be Sacrificed for the general safety.^ Therefore of 
 '^^ all the necessary requisites for a general average 
 
 contribution, there is only one : — ' the distress of 
 the ship.' 
 
 The dispute here is between custom and argu- 
 ment. There is no doubt that custom ought to pre- 
 vail when reason and experience combine to show 
 the propriety of it ; but it has been justly remarked, 
 I that ' custom ought to have no weight when incon- 
 zshuback,De sistcut with cquitv.'^ In this case it appears to be 
 
 jure littoris, pj. . • ^ • ^ i iii ii 
 
 194. mconsistent with equity that the whole should con- 
 
 Kaimesj Pr. ^ ^ributc iu rcstitutiou of what was not intentionally 
 c. 3, § 2.' ' sacrificed for the benefit of the whole. 
 
 [ /j It appears to me to come under the head of those 
 
 \i losses which are inevitable; — and such, the Digest 
 
 and all authors are agreed, must be borne by the 
 
 a Leg. Rhod. parties themselves separately.'' For you cannot in 
 
 Ord. Ph. 11, equity convert a loss, which is inevitable, into a 
 
 Q^'^'^^"^]^ claim for the preservation of property. 
 
 sen, p. 6. 
 
 Voluntary r|j 1 ^/jg scconcl disDuted or doubtful case to be 
 
 strQ-nQniir • • 
 
 to escape notlCCd is that of RVi^NlNG A SHIP ON SHORE WHEN 
 
 capture. CHASED BY THE ENEMY.'' 
 
 3. ^^" ° ■ This case differs in principle very little from the 
 Poui^^^d^L pi'^ceding. If therefore the arguments are good 
 p. ii, § 2, n. against the one, it is conceived they must be so 
 Auth. ut sup. against the other. — In both there is wanting the 
 motive. In neither case is there any thing selected 
 to be sacrificed. — In neither case can it be said that 
 the master and crew did that for the preserva- 
 tion of the ship and cargo, when, strictly speaking.
 
 Of General Average. 85 
 
 the object was so much higher — the preservation 
 of life (1) or liberty. The learned Pothier, how- 
 ever, after enumerating other species of average, 
 says ; — ' besides these species of general average 
 there is another, viz. — when a ship being chased 
 by an enemy, the master in order to prevent her 
 capture runs her ashore, — the damage caused is a 
 general average, whether it happen to the ship or 
 the cargo," the running ashore having been made *= VideAppen- 
 for the general safety.''' Both these cases will re- ^ poth Contr 
 quire great consideration before they are admitted de Lou. ut su- 
 under the head of undisputed general average claims. ^'^^* 
 
 [c] T^e DAMAGE DONE TO A SHIP by defending ^^mage by nn 
 
 her against an enemy, and the ammunition expend- '^"s^S'^'"^" • 
 
 ED thereby."^ "_ Ord. Hamb. 
 
 The first article mentioned by Weskett,*^ (which ord^France, 
 he got from the laws of Hamburgh,") as coming Y*^ '%'tr^ 
 under the head of general average, is 'the damage c.d.L. n.i43- 
 that a ship suffers in her apparel and cargo in de- ^rt'^'s^'^"^^ ^' 
 fending her against an enemy ;' and this is confirm- f weskett, 
 ed by the foreign ordinances, which made every ^2, art. ' Gen. 
 thing that ultimately contributed to the general ben- g ord. Hamb. 
 efit, a subject of general contribution ; and yet, on "'^ ^"p 
 examination, we shall not find one feature in this of 
 a general average claim, — i. e. if by it be meant a 
 deliberate sacrifice for the general benefit. In both 
 these cases a distinction should be made between an 
 ' armed ship' so called, — and an ordinary merchant- 
 man sailing with convoy. The former being bound, 
 
 (1) If the law determine, as it probably would, that the 
 damage incurred by whatever is done by the captain and 
 crew for the preservation of life, is to be made good by a 
 general average contribution, — then these two last cases 
 of [a.] and [b.] are legitimate general average claims. — But 
 if argument alone should be allowed to settle the point, then 
 perhaps there will be little difficulty in determining that they 
 are not.
 
 86 
 
 Of General Average. — Stevens. 
 
 by a kind of implied warranty, to defend herself — 
 the damage done to her and the ammunition ex- 
 pended ought to be considered as the wear and tear 
 of the voyage. But the case is different in an ordi- 
 nary merchantman ; though in such a case it ought 
 not to come under the head of general average, but 
 if any claim be made it should be for a partial loss. 
 There may be some doubt whether in either case 
 the ammunition expended be a proper subject for 
 general or particular claim ; but if the ship escape 
 perhaps it should be general. 
 
 III. c. vii. 
 
 Expense of [d.] ThE EXPENSE OF CURING THE HURTS ?i7i2c/i 
 
 wounds. t^^^ officers and seamen may receive in defending the 
 ship. (1) 
 
 J. 11 & 12 Will. Provision is made for this case by statute ;^ w^here- 
 by the judge of the Admiralty court is authorized on 
 petition, to direct the registrar and merchants, to levy 
 a certain sum, not exceeding two pounds j;er centum 
 of the value of the ship, freight, and cargo ; (ac- 
 cording to the first cost of the latter,) and distribute 
 the same amongst the wounded seamen and the 
 widows of the slain, &c. (ci) 
 
 I 4 Camp. 
 Rep. p. :{:{7 
 
 (1) Since this v.as publisiied it has been determined, that 
 neither the damage done to a merchant-ship by defending her 
 against a privateer, nor tlie value of the ammunition expend- 
 ed, nor the charge of curing the tvoundcd seamen, are subjects 
 of general average contribution.' The statute of William III, 
 above cited, seems to have fallen into disuse, for the judge did 
 not allude to it on this trial, nor does the author know of any 
 late instance where it has been enforced. 
 
 {a) Tlie laws of the United States make no provision cor- 
 responding to that of the British statute mentioned in the 
 text. There are not wanting reasons in favour of such a 
 statute, however, for there are many occasions when the ex- 
 traordinary exertions of the crew in defending a ship, are, at 
 least, a sidhcient ground for providing out of the property 
 saved for the expense of healing those who may have been 
 wounded in the engagement, and for allowing some provision
 
 Of General Average. 87 
 
 It is seldom that there is any necessity to bring 
 these claims before the Admiralty court. No au- 
 thority is necessary to oblige the underwriters to do 
 that which they are always prompt to do of their 
 own accord, viz. — to remunerate those who have 
 suffered in bravely defending the property entrusted 
 to their charge. 
 
 [e.] The wages and provisions of the shiph jYo^Xn"^ 
 company. 
 
 Some writers hold, that there are cases where the 
 above should be made good by a general contribu- 
 tion ; — these are said to be as follow : — 1 . From 
 the time when in distress, the ship alters her course 
 to seek a place of safety to refit, and until she is 
 refitted and pursues her voyage.'' 2. While detain- ^ Beawes, 
 
 1 . . c • , • Lex. mere. 
 
 ed in port in consequence oi unjust capture or seiz- rediv. p. \m, 
 ure.' 3. While under embar2;o or detention by the ^";! foreij;" 
 authority of the state, either in the port of loading, i idem. 
 or in an intermediate port."' The practice in foreign ofJl'^^rance^' 
 countries is, in almost all these cases to make the lib. iii, tit. 7.' 
 wages and maintenance of the crew a general av- m ord^^' 
 erage charge. The case alone of embargo appears France, ut 
 to have had the full consideration of our courts ; — 
 in that case, Mr Justice Buller said," ' these charges " ^ '^"'?,^ 
 
 ' n Rep. p. 4U7. 
 
 shall fall upon the owners only, and the freight must 
 bear them ;' meaning, I suppose, that the ship-own- 
 ers must reimburse themselves out of the profits of 
 the voyage. The French ordinance says," 'the food oord. France, 
 and wages of seamen belonging to a ship embargoed 'i}\^11^}]\qj^^ i 
 by an order of state, shall be reputed gross average, p. 631. 
 
 to tlic widows and children of those who may Iiave l)een sln'in. 
 Indemnities and rewards of these descriptions, are not suh- 
 jects of contribution in general average in Great Britain or 
 the United States, nor could they Avell be made so, the 
 amounts to be awarded being more properly subjects for the 
 exercise of a sound discretion by a judicial tribunal, than for 
 the application of any uniform general rules by a despacheur 
 of avera<«:cs. — Ed.
 
 88 Of General Average. — Stevens. 
 
 if she be hired by the mouth, but if she be freight- 
 ed for the voyage, they shall be borne by her alone.' 
 p Beawcs, Aud it is further said,'' that when the crew are hired 
 Lex. nicrc. p. j^y ^j-^g niouth, the sauie rule should hold good : but 
 Ricard, Neg. it seldoui happens that the crew* are hn-ed by the 
 a Amst. month — they are paid at the rate of so much per 
 
 month, but they are hired for or by the voyage. 
 The reason given w hy victuals and wages are gen- 
 eral average w hen the ship is hired by the month is 
 
 — that the master not receiving in this case any 
 freight while the arrest lasts, is not obliged to fur- 
 nish for nothing his sailors to take care of the mer- 
 
 '\ Potiii( r, c chants' goods.'' («) 
 
 s*^->'"ii'*i5i Adrian Venver, (an old writer on insurance) in 
 
 examining the question of seamen's wages, &lc, on 
 a ship detained at Vera Cruz ; says, very sensibly, 
 
 — why should victuals and men's wages be deemed 
 a general average any more than the interest of 
 money, and the damage caused to the cargo by the 
 
 ' Magens, p. delay"!'' (1) (6) 
 
 (a) If ill all cases of charter by the month or year, the pay- 
 ment of charter money were, by law or by the provisions of 
 the charter party, suspended during the temporary interruption 
 of the voyage by any disaster, there would be more foundation 
 for the distinction made by the French law on the subject of 
 average, but this matter is wholly at the discretion of the par- 
 ties in making their contract, both in the United States, and 
 in Great Britain. The distinction has been a subject of much 
 discussion among the French commentators, who do not agree 
 as to its grounds or expediency ; it has, however, been incor- 
 porated into the new French code, together with most of the 
 former marine ordinances, of which the code is nothing more 
 than a digest with very few alterations of provisions of ques- 
 tionable expediency, or elucidations of those of doubtful con- 
 struction. — Ed. 
 
 (1) The same author (in his treatise of the Marine Laws 
 » Lex Merc, of the Low Countries) states a case where the wages and pro- 
 rediv. p. 150 ; visions were made good by a general contribution : — as, where 
 k' s' n ■? '^^' ^ ^'^'P ^^"^^ taken by force and carried into a port, and the 
 Qutcst. jur. crew remained on board for the express purpose of reclaim- 
 priv. lib. iv, ing the ship, and by that means prevented a total loss.' 
 c-25. (ft^ [The law and practice in the United States as to a claim
 
 Of General Average. 89 
 
 It may here be noticed, that cases have occurred 
 where a master of a ship, being aware that seamen's 
 wages would not l)e allowed on a vessel putting into 
 a port in distress,^ has on arrival discharged his crew, 
 and then hired them again and charged Tor their ser- 
 vices as labourers in discharging and reloading the 
 ship, rigging her, &.c. — It may be proper to inform 
 such persons that this artifice will not avail them — 
 because the owner is bound, at his own peril and at 
 his own expense, to keep a competent crew on board 
 from the commencement to the termination of the 
 voyage. It would seem that the duties of a ship- 
 owner are not in general so well understood as they 
 ought to be. («) 
 
 for the expenses of wao;es and provisions in general average, 
 differ materially from those of Great Britain. See the notes 
 to Benecke on general average. See also 1 «fc 2 Phil. Ins. c. 
 15, § 4. 
 
 («) Mr Stevens's reasoning on this suhject does not seem to 
 be very satisfactory. In the iirst place it is settled in many 
 cases that the owner is not required to keep a full crew in pay 
 while the ship is in port, whether she be delayed there for the 
 purpose of repairs or for any other purpose. If the master 
 cannot discharge his crew without great risk of not procuring 
 another suitable one without delay for the purpose at the same ^ 
 
 port, his discharging them under these circumstances might 
 raise a question as to his prudence or misconduct. But this 
 is a distinct (ptestion standing on different grounds ; and does 
 not affect the question whether the master is ojjliged, as a 
 general and prevailing rule, to maintain a full crew at the 
 expense of the ship, whether he has any employment for them 
 or not ; and the cases and common practice are so directly 
 opposed to any such doctrine as to render it superfluous to 
 cite any authority to the contrary. If this be so, then the 
 basis of Mr Stevens's reasoning fails. Again, as the undei*- 
 writers undertake to indemnify the owners against certain 
 perils and damages, it is immaterial to them whether such 
 damages are repaired by men hired for the special purpose or 
 by some of the crew, provided the expense is the same. 
 There might be danger of abuse in England, perhaps, if the 
 master were allowed to charge for the services of the crew in 
 repairing, but if the charges are rejected on this account it 
 is putting the matter on an entirely different ground from that 
 
 12
 
 90 Of General Average. — Stevens. 
 
 [f.] The repairs done to a ship in a foreign 
 port where she puts in in distress, in order to enable 
 t -2 Tonn her to complete her vom^e.^ 
 '^ ^'' '■ It is surprising that any discussion should have 
 taken place on this subject, or that there could ever 
 have been any doubt that the owner of the ship was 
 bound to k(^ep his ship in repair. The idea could 
 only have originated in the supposition that what 
 was eventually for the general good, i. e. in this case 
 the arrival of the ship with her cargo, should be 
 borne by a general contribution, (ci) (1) 
 
 on which Mr Stevens places it. And besides, this is a ground 
 which ought not to be assumed except in the strongest cases, 
 and under the authority of a practice or a judicial decision ; 
 for all exercise of discretion or trust is liable to abuse, and it 
 would narrow the claims of the assured exceedingly if they 
 could only demand indemnity for damages and expenses in- 
 curred in modes exempt from it. The question does not 
 stand upon tlie same footing in England and the United 
 States, owing to the practice in this country of contributing 
 in general average for wages and provisions in cases of delay 
 to repair and refit in a port of necessity ; and since in those 
 cases all the parties interested support the crew and pay their 
 wages, they are entitled to such services as the crew can 
 render. But here again if the ship puts in to repair damage 
 that is a particular average, though the wages and provisions 
 in such case are contributed for in general average, the ques- 
 tion may occur whether, if the crew, while their wages and 
 provisions are paid for by contribution in general average, 
 are employed in repairing a damage that is particular average, 
 the underwriters against such particular average are to be 
 charged witb the amount of services so rendered by the crew; 
 and it does not appear why they should not be so charged. I 
 think that a despacheur would not hesitate in the United States 
 to make up an adjustment in this manner. — Ed. 
 
 (a) Mr Stevens ought here to make the distinction, whether 
 the repairs were needed, in consequence of a voluntary sacri- 
 fice, as cutting away a mast, or an inevitable disaster. In the 
 former case they would no doubt be general average. Mr Ab- 
 bott, since Lord Tenterden, thinks tliat in such case the inciden- 
 tal expenses will, as an accessary, follow the principal, and be 
 general, or particular average, according as the repairs belong 
 to one or the other description of loss. Abb. on Ship. 350. — Ed. 
 
 (1) Since the first edition of this Essay it has been deter-
 
 Of General Average. 91 
 
 [g.] A SUM PROMISED BY THE MASTER tO be giveU Exlniorclinary 
 
 to seamen for their exertions ivhile the ship is in dis- '^'^^'•''*'■^^• 
 tress. 
 
 An action for this cannot be maintained; — for a 
 seaman who has engaged to serve on board a ship, is 
 bound to exert himself to the utmost in the service 
 of the ship ; and therefore a promise made by the 
 master when a ship was in distress, to pay an extra 
 sum to a mariner as an inducement to extraordinary 
 exertion on his part, was held by Lord Kenyon to 
 
 1 . 1 u ^ -^ -^ u peake's 
 
 be void." N. p. Cases, 
 
 p. 72. _^ 
 
 [h.] Damage done to the Cargo 6?/ z^Ae me«w.s dj ]° | 5/^' 
 of water thrown down the hatches to extinguish a7i Damage inci- 
 accidental fre in the hold or between the decks. wuisiiin<^a 
 
 The question is, who is to pay this loss ? — The fiie. 
 underwriter on the goods refuses, on the ground that 
 though he is liable for loss by fire generally, yet in 
 this case, it is the remote cause of the damage, water 
 is the proximate cause, but this is the hand of man, 
 and therefore it does not come under the head of a 
 ' loss or misfortune' for which he is liable. When 
 claimed as a general average, it is objected to on 
 the ground that the damage done to the goods is 
 secondary and accidental^ and not primary and inten- 
 tional, (as in cutting away a mast, &:c,) which it 
 ought to be to establish such a claim. The question 
 
 mined by the judgment of the court of king's bench/ that the " 4 M. & Sel. 
 following charges are not general average according to the ^^P- P- ^^ 
 law of England, viz. — 1. The ivages and provisions of the crcio, 
 while a ship remained in port, whither she was compelled to 
 go for the safety of the ship and cargo in order to repair a 
 damage occasioned by a tempest. 2. The wages, <^f, while 
 detained in port by adverse winds, whither she returned after 
 having repaired her damages. 3. The expenses of the repair, 
 though evidently to put the ship forward on her voyage. 4. 
 The damage done to ship and tackle by standing out to sea with 
 a press of sail in tempestuous weather, though such press of 
 sail was necessary for that purpose in order to avoid an im- 
 pending peril of being driven on shore and stranded.
 
 92 Of General Average. — Stevens. 
 
 tlieiefore reiiiaiiis, — how is the proprietor of dam- 
 aged goods to get his indemnity ? In answer to 
 this, it is submitted, that as there should never be 
 ' Avrong without a remedy,' and as ' no one should 
 be allowed to profit by another's loss,' the proprietor 
 has a right to demand of those who have profited by 
 his loss to give him the remedy which he cannot get 
 from his underwriters, — and that therefore this claim 
 should be settled by a general average contribution.
 
 CHAPTER v. — Of Average. 
 
 Of Average, and the distinction between General and 
 Particular Average. Money raised abroad for 
 purposes of General Average. 
 
 [Benecke. Chap. V and VI.] 
 
 The expenses incurred during a sea voyage are Definition. 
 either regular, and such as occur in the ordinary 
 course of the voyage ; or they are extraordinary 
 charges occasioned by fortuitous accidents. 
 
 The former, which are frequently called petty 
 average, comprise all ordinary charges at the places 
 of loading and unloading, and during the voyage, 
 such as common pilotage, towage, light-money, bea- 
 conage, anchorage, ordinary quarantine, river charg- 
 es, &c, part of which is borne by the cargo, either 
 under that denomination or by a stipulated per cent- 
 age on the freight. These charges can, of course, 
 never become the subject of a claim against the 
 underwriter. 
 
 The latter are either voluntarily incurred for the 
 purpose of avoiding an imminent danger, threatening 
 the whole of the ship and cargo, or of extricating 
 them from such a danger ; or they are incurred for 
 the preservation, or on account of the ship only, or 
 of a particular article. In this latter case, the ex- 
 penses are to be borne by the proprietor of that par- 
 ticular article. 
 
 In a similar manner the losses and damages sus- 
 tained during a sea voyage, arise either in the ordi- 
 nary course of the navigation, and constitute, for 
 that reason, no claim upon the underwriter, such as
 
 94 Of Average. — Benecke. 
 
 the wear and tear of the ship, and the decay of the 
 goods, arising out of their perishable nature ; or 
 the} are the immediate effect of the perils of the 
 sea. The latter, agaiii, are either voluntarily under- 
 gone; for the purpose of extricating the whole of the 
 ship and cargo from an imminent danger ; or they 
 are fortuitously sustained by the ship or by a par- 
 ticular article, and must, therefore, be borne by the 
 owner of the ship or of that article alone, or by 
 their underwriters. 
 
 All EXPENSES as well as losses, therefore, aris- 
 ing from external causes, or from perils of the navi- 
 gation, necessarily fall under one of the following 
 two classes : They are either voluntarily incurred, 
 or sustained for the beneht of the whole concern, 
 and must be borne by all the parties concerned ; or 
 they regard one particular part of the concern, and 
 must be borne by the proprietor of that part alone. 
 I Expenses and losses of the former class constitute 
 what is called in all commercial countries, without 
 exception, general average. Losses or damages of 
 the latter description are called particular or partial 
 losses, or average losses, to distinguish them from 
 total losses ; or they are termed particular average, 
 to distinguish them from general average. 
 
 It is the object of this chapter to show the dis- 
 tinction between particular and general average, 
 arising out of the nature of the subject, and accord- 
 ing to the laws and usages of the principal trading 
 nations. An attention to the latter is the more 
 requisite, as ship-owners as well as merchants, to 
 whatever nation they belong, are obliged to submit 
 to the regulations of the country to which the vessel 
 is bound, if she arrive there, and the general average 
 be there adjusted, and to pay their proportion accord- 
 ingly- 
 
 The investigation of general average, although of 
 
 peculiar importance in insurances, belongs not exclu-
 
 Of Average. 95 
 
 sively to thai branch of mercantile knowledge. 
 Common justice requires that every one, Whose pro- 
 perty is saved by the sacrifice of another's property, 
 should bear a proportionate share of the loss of the 
 latter, no matter whether either or both were in- 
 sured or not. (a) Indeed, laws upon this subject 
 have been passed long before the introduction of in- 
 surances. The Rhodian law concerning jettison, as 
 embodied in the Roman law, contains regulations 
 upon this head, which have served more or less as a 
 foundation to all succeeding marine laws. 
 
 Before we proceed, it will be necessary to observe, 
 that the word average has been used by legislators 
 as well as by authors, in different senses. By the ^ 
 Ordinances of Hamburgh and Sweden, it includes 
 
 (a) Mr Benecke might have stated the general law in still 
 broader terms, since by that law if one sacrifices or appropri- 
 ates another's property for the pnrpose of saving his own, he 
 is answerable for it whetlier he succeeds in saving his own or 
 not. But in case of jettison, the maritime law interposes and 
 qualifies this liability and makes it conditional. But what is 
 the condition is a matter of discussion. The current of au- 
 thorities renders the parties responsible in contribution only 
 on condition of the threatening peril being avoided. It thus 
 may happen, that the party whose property is sacrificed may 
 be put in a worse situation than the others, for if goods are 
 thrown overboard to avoid sliipwreck, and yet tlie ship is 
 wrecked, and tlie rest of the cargo saved, the party whose 
 goods are thrown overboard is in a worse situation than the 
 others. This is evidently too wide a departure from the prin- 
 ciples of the general law ; it is also a departure from a genera] 
 principle of the maritime law, according to which, in all other 
 cases, all parties in case of a jettison, are put upon an equal 
 footing. This is the fundamental and rulijig doctrine of con- 
 tribution, and there does not appear to be any reason for an 
 excejjtion to it in the above case. The exception is in fact a 
 violation of the principle. The point is subsequently discussed 
 by Mr Benecke, and I cannot but think the doctrine laid down 
 by him is perfectly correct and law, the case to the contrary 
 notwithstanding, viz. that in case of jettison or sacrifice for 
 the general benefit, whatever is eventually saved is liable to con- 
 tribute in average, whether the particular event apprehended 
 at the time of making the jettison is or is not avoided. — Ed.
 
 96 
 
 Of Average. — Benecke. 
 
 a Orel, (if 
 Hainb. Tit. 
 21. art. ] ; 
 Ord. of Swe- 
 den, Tit. 
 average, § 1. 
 
 b Ordon- 
 nance. Tit. 7, 
 art. 1 ; Code 
 de Commerce, 
 art. 397. 
 
 General avcr- 
 acre defined. 
 
 c Birkley v. 
 Presorave, 
 1 East, 220. 
 Covington v. 
 Roberts, New 
 Repts. 378. 
 
 d Code. art. 
 400. 
 
 e Tit. 21, 
 art. 1, § 7. 
 Causes of 
 disparity in 
 the laws re- 
 specting this 
 subject. 
 
 not only all kinds of loss whatever, but also all ordi- 
 nary and e'xtraordinary charoes incurred during the 
 voyage." Jii the French law it means, all extraor- 
 dinary charges incurred for the ship and cargo, whe- 
 ther Jointly or separately, and every damage sustain- 
 ed by the ship and the goods from their embarkation 
 and departure, to their arrival and discharge.'' The 
 modern English authors use the word average, chiefly 
 as denoting damages and expenses voluntarily incur- 
 red for the benefit and preservation of the ship, 
 freight and cargo. (1) 
 
 General average has been described in the English 
 courts of law, to comprise ' all loss which arises in 
 consequence of extraordinary sacrifices or expenses 
 incurred for the preservation of the ship and cargo." 
 
 The French law, after enumerating the several in- 
 stances of general average, concludes bv declaring 
 generall}-, ' the loss voluntarily sustained, and the 
 expenses incurred in consequence of due deliberation, 
 ((Paprcs deliberations motivces) for the benefit and 
 preservation of ship and cargo from the loading and 
 departure, to the arrival and discharge,' to be general 
 average.'' The Ordinance of Hamburgh declares all 
 extraordinary expenses incurred for the purpose of 
 saving and preserving ship and cargo to be general 
 average.'' 
 
 Although these laws, and the corresponding ones 
 of other states, do not make use of the term sacrifice, 
 yet their definitions imply that nothing short of a 
 sacrifice shall be deemed a general average. jUl 
 those la^vs, may, therefore, be said to establish the 
 
 (1) Some English authors object to the word ' average' 
 being applied to partial or particular lo.sses, because this is 
 contrary to the usual signification of the word, which is a 
 medium or mean proportion. But it ought to be observed, 
 that 'average' has not that signification in any other Euro- 
 pean language. — Whatever has been advanced upon its ety- 
 mology is altogether hypothetical and unsatisfactory.
 
 Of Average. 97 
 
 same general principles ; viz. that a sacrifice made 
 for the preservation of the ship and cargo is general \ Jl 
 ^average. But the consequences deduced by legisla- \ 
 tors and commentators from this apparently simple 
 rule, differ materially from each other ; and this is 
 not at all surprising, if we consider, in what different 
 senses the words sacrifice and preservation may be I 
 taken. » 
 
 As to the term sacrifice, it is clear, and generally 
 admitted, that a damage, to deserve the appellation 
 of a sacrifice, must have been purposely undergone, 
 and by the agency of man, for the benefit of the 
 whole, and that every damage, not purposely under- 
 gone, although the ship and cargo may be benefited i V 
 by it, ^ives no claim for restitution. Thus, if a mast ' 
 be broke by the violence of the wind or the motion 
 of the vessel, at the moment when it was to have 
 been cut away, there is no sacrifice, and conse- 
 quently no claim for restitution, for the mast would 
 have been lost also, if there had been no intention 
 of cutting it away. 
 
 Now, 1. If goods be necessarily thrown over- 
 board, or otherwise voluntarily lost, for the purpose 
 of saving the whole, this is undoubtedly a sacrifice. 
 It is the same 
 
 2. With respect to goods exposed to loss under 
 similar circumstances ; for as no one has a right to 
 destroy another party's property, without compensa- 
 tion, for the purpose of saving his own, neither has 
 he a right to expose another's property for the same 
 purpose, without compensation. Goods thus ex- 
 posed, if eventually lost, were also sacrificed. 
 
 3. Ship's apparel voluntarily and necessarily de- 
 stroyed for the benefit of the whole, as anchors and 
 cables cut or slipt, &c, to extricate a ship and cargo 
 from a perilous situation, arc also sacrificed. But 
 they are so under a supposition only, that at the 
 time, when they were destroyed, they were still of 
 
 1 cy 
 iO
 
 98 
 
 Of Average. — Benecke. 
 
 value to their owner ; or that there was a possibility 
 of the ship being preserved without the apparel being 
 destroyed. If masts were cut away only at a mo- 
 ment when, without that remedy, all would have 
 been irretrievably lost, it is clear that no sacrifice 
 was made, since that which had already lost all its 
 value cannot be said to have been sacrificed. This 
 is not so with respect to goods thrown overboard 
 at the moment when, without that act, the w^hole 
 would have been irrecoverably lost ; for those goods 
 might have been preserved, if, instead of them, other 
 goods had been thrown away. 
 
 4. When ship's apparel is exposed to unusual dan- 
 ger, it admits in many cases of a doubt, whether this 
 is or is not a sacrifice : for it is difficult to distinguish 
 what the captain is obliged to do, on the approach of 
 danger, at his or his ow^ner's charge and risk, from 
 that which exceeds this obligation. By the contract 
 of affreightment, the master is bound to use his utmost 
 endeavours for the safety of the goods entrusted to his 
 care, and for their speedy conveyance to the place of 
 their destination. The expense which he incurs for 
 this purpose, in the ordinary course of the voyage, 
 and the damage which the vessel in this way sus- 
 tains, are no sacrifices entitling him to an indemnifi- 
 cation from the proprietors of the cargo. But all the 
 expenses and losses to which he deliberately submits, 
 for the sake of preventing a danger affecting the 
 whole, and to which, by the contract of afii-eight- 
 ment, he is not obliged, are sacrifices, and as such, 
 subjects for general contribution. It is, however, 
 evident, that the line of distinction between the two 
 is not always easily drawn, and that we must expect 
 to meet with a variety of views upon this topic. — 
 The case is different w^ith respect to goods exposed 
 to particular hazard : for no proprietor is under any 
 such ol)ligation to another proprietor or to the ship- 
 owner, as the latter is to the different proprietors of 
 the cargo.
 
 Of Average. '99 
 
 5. The expenses voluntaril •/: Incurred for the pur- 
 pose of extricating a vessel Ind cargo from ini'P'r;i*;dT,'/;''„''5„?;h \; 
 
 ing danger, are undoubtedly a s^ai^vifieb^, and conSo- ' 
 
 quentlj a general average (although, even in this 
 respect, the French law makes an exception as to 
 the charges of a vessel entering a port to repair a 
 leak, &c.) But the charges necessarily incurred in 
 port, after the ship and cargo are in safety, are dif- 
 ferently treated in different countries, and there is 
 a great variety of opinions as to their being or not , . 
 being sacrificed. 
 
 As to the iGxm preservation, there can be no doubt 
 that it presupposes a real danger. A jettison or a Malicious or 
 destruction of ship's furniture made without neces- Jettison^^"^ 
 sity, or with malicious intention, can by no means 
 be placed to general average, and the perpetrators, 
 or the master and owners for them, must repair the 
 loss. (1) But what degree of danger it must be 
 which authorizes a master to throw goods overboard, 
 &c, cannot with exactness be defined. It is clear, 
 that the moment of the greatest distress cannot be 
 waited for. A measure so long deferred might often 
 prove too late, and if it were put off till, without 
 that measure being resorted to, all would be un- 
 avoidably lost, it would no longer be a sacrifice. 
 
 Several laws direct the master to deliberate with 
 the proprietor of the cargo, if on board, and the 
 principal persons of the crew, or with the latter 
 only, if the proprietor be not on board. (2) The 
 captain, however, as Casaregis and (after him) 
 Emerigon observe, *^ is not to be governed by a phi- fEmer. 1.376. 
 
 (1) The Swedish law says, tliat if the captain, by the press- 
 ing entreaty of persons on board, cuts away masts, or does 
 any otlier damage to the vessel, then they who persuaded him 
 shall pay the loss. 
 
 (2) This direction is contained in the Rhodian, the AVis- 
 buyan, and other laws; also Hamb. Ord. Tit. 22, art. 2 ; Ord. 
 de la Marine, Tit. du jet, art. 1 ; Code, art. 410, «&c.
 
 . 'X^\\ i' '^V*'*-^-* -• 'Y.V,'&/ Averao-e.^Benecke. 
 , i».Y-* *: * '• • ' '• 
 
 ,^:.^^onsuUation. ralitv of votes, if lii.s". opinion differ from that of the 
 **..• 'il.r.A'.'.'i?^'^''^ Hi^ h-e/Jpay falrb^V his own judgment without 
 • •''''''*•*••' '1ji^).^iTgJiim&eff^^l^^^ any responsibility. A sacrifice 
 thus made by the order of the master alone, belongs 
 undoubtedly to general average. Even the opposite 
 case may be imagined, where a necessary sacrifice 
 made by the crew in opposition to the master's will, 
 could not injustice be excluded from it. 
 
 There is a distinction also between extricating a 
 ship and cargo from imminent present danger, and 
 taking measures to prevent a future peril ; and this 
 also may prove a source of difference of opinions. 
 Whether the Some autliors pretend, that, to constitute a claim 
 penrmus't be ^^^' general avcragc, the object in view must have 
 avoided to bccu really obtained by the sacrifice, or at least that 
 conlributTon"'^ the ship and cargo must in fact have escaped the 
 See infra also, danger. But this rulc is not compatible with the 
 nature of the subject, for on the one hand it would 
 , be extremely difficult to ascertain whether the pre- 
 
 servation was or was not owing to the measure 
 taken ; and on the other hand, no one can be au- 
 thorized even to attempt the preservation of the 
 whole at the expense or peril of one party concern- 
 ed ; (2) but each party who would have been ben- 
 efited by the attempt, had it proved successful, must 
 contribute towards the expenses; and they must con- 
 tribute towards the sacrifice, in whatever manner the 
 remainder may subsequently be saved. The above 
 condition cannot, therefore, be considered as a ne- 
 cessary requisite for general average, but can only 
 be admitted in as much as it is particularly prescrib- 
 ed by law. I shall have an opportunity of illus- 
 trating this in the sequel. 
 Whether a Others again say, that there is no ground for gen- 
 
 ticie mu7tbe'^ ^ral Contribution, unless a particular article be selected 
 selected. iq \)q sacrificed. This rule is equally void of foun- 
 dation. The loss of goods removed to a barge, for 
 / the purpose of saving the ship and cargo, is undoubt-
 
 Of Average. 101 
 
 edly to be compensated for by general contribution, 
 
 in the same manner as goods thrown overboard, / 
 
 although the former were not intended to be de- , 
 
 strojed. 
 
 It has also been said, that such loss or expense 
 alone can belong to general average as would not 
 have been incurred, if there had been no cargo, or 
 ndt such a cargo on board at the time/ But this ^^^fh ^^"•"^ 
 
 • 1 • 1 -1 1 11 r A ofbhipping, 
 
 prmciple might easily be extended too lar. A ves- ii, ii)4. 
 sel going in ballast, as well as one with a cargo on 
 board, may be driven upon a rock and obliged to cut 
 her masts, or to employ assistance to get off; and 
 yet nobody will deny that such loss and expenses, if 
 a cargo is on board, are a subject for general average, 
 although they would also have been incurred if no 
 cargo had been on board. 
 
 It is dangerous to advance general propositions 
 which, if literally applied, may be productive of very 
 sensible errors. 
 
 After this general view I shall investigate the vari- Enumeration 
 ous cases of loss, in order to show whether they be- "fgf""aiand 
 
 ' . •/ , particular av- 
 
 long to general average, or to particular average. (1) crages. 
 Losses occasioned by shipwreck, and other inci- Losses at sea; 
 
 J , . P -^ ^ ^ , . shipwreck and 
 
 dental misiortunes, are particular average according other inciden- 
 to the general explanations of all laws, and the ex- tu,j""^^"'^' 
 press stipulations of some.*" Such are the damages h Ord. Tit. 
 done to the cargo, as well as to the vessel and her tip^avaries 
 
 , '^ . , , ,. . art. 5 ; Code, 
 
 appurtenances, by storm, accidental stranding, loun- art. 403; Ord. 
 dering, &c. The goods saved from shipwreck do oq ^rt'^'25— 
 not contribute for those lost. The damage done by 3G.' 
 a storm to the hull of the vessel, the accidental loss 
 of sails, anchors, cables, &;c, fall upon the ship-owner 
 , alone. (2) The Roman law very pertinently com- 
 
 (1) The term, ' particular average,' is used here merely in 
 contradi.stinctioii from general average, ivithout any reference 
 to the liability of underwriters. 
 
 (2) Emer. I, ch. 12, sect. 41, §§ 1 & .5 ; Ord. Tit. des av. 
 art. 4, Tit. du jet, art. 1 & 5 ; Swed. Ord. of Ins. ' What
 
 102 Of Average. — Benecke. 
 
 pares a ship to the tools of a workman : if the latter 
 
 break his tools in performing any work agreed for, the 
 
 employer is not bound to replace them : neither is the 
 
 : i freighter of a vessel bound to make compensation 
 
 ' for the damage which she has accidentally sustained 
 
 during the voyage.' 
 
 i L. 2 de lege Yox the samc reason the charges of salvage from 
 
 Rhodia de / . ,, ,, ° t n i 
 
 jactu. / , a^wr^ck, as well as all expenses applied to the sav- 
 Saivage I ing of auv particular article, are to be borne by the 
 
 charges. ^ ^ ^- "^ ^ • ^ \ ^ "^ 
 
 ^ I respective proprietors separately. 
 Jettison of Goods throwii ovei'board to avoid an impending 
 
 goods a gen- danger, either in a storm, or during the pursuit of an 
 
 eral average. " . , ,. -. , i i 
 
 enemy, in order to lighten the vessel, or to get clear 
 of shoals, are compensated for by general aver- 
 what goods age. (1) Tlic laws give different directions to be 
 lected. ^ ^^' followed in resorting to jettison. The master, as 
 mentioned before, is not to cast goods overboard 
 without previous consultation with the proprietor, or 
 with the principal officers ; the bulky and least ex- 
 pensive merchandize is to be thrown away first ; a 
 statement of the jettison is to be made with all pos- 
 sible exactness, a document is to be drawn up and 
 signed by the crew, stating the circumstances which 
 of^nrTi?"'^ rendered the jettison necessary, &c.'' All these 
 22; Code, art. lulcs, howcvcr, caii be followed only in cases which, 
 ' ^' not being very urgent, admit of deliberation, and 
 which the Italians call ' regular jettison ;' but these 
 are so rare, that Targa relates only four or five to 
 
 belongs not to average,' § 2. Dan. art. viii, No. 4 &. 5. 
 The 6tli article contains a direction deviating from the rule : 
 — ' Goods in bulk, damaged in a storm, by shipping high or 
 heavy seas, or which, without the master's concurrence, are 
 stolen or plundered, are to be contributed for by the other 
 goods, and both are to be repaid by the underwriters, if the 
 damage amount to more than 3 per cent.' 
 
 (1) A. 4, § 2 de leg. Rhod. ; Hamb. Ord. of Ins. Tit. 21, 
 art. 9, No. 8 ; Code, art. 400 ; Swed. Ord. of Ins. ' what be- 
 longs to average.' §§1, 9, and 12; Ord. de Bilb. c. 20, art. 
 8. — See also Abbot, P. Ill, ch. 8 ; Park, ch, 7.
 
 Of Average. 103 
 
 have occurred within his experience at the naval 
 court in Genoa, during a period of sixty years, and 
 these were rendered even suspicious by too strict 
 an observance of formalities. On occasions really 
 pressing, the neglect of prescribed formalities is ex- 
 cused by necessity. (1) But the master, in every 
 case, is obliged to enter his protest at the first har- 
 bour to which he comes, detailing the circumstances 
 which rendered the sacrifice necessary. 
 
 The master being obliged to take particular care 
 for the preservation of specie, or precious commod- 
 ities entrusted to him, would not easily be excused 
 if he threw overboard articles of that description. 
 
 The goods so thrown overboard, if recovered, be- Goods th 
 
 rowu 
 
 long to their former proprietors, and must be return- overboard, if 
 
 o 11' rccovcrt^u, be- 
 
 ed to them, they paying the salvage charges.' Should long to their 
 this recovery take place after the loss has been ad- g"™^'^ piopn- 
 justed, the proprietors must return to the concerned i Emer.i.cii. 
 the amount received, deducting an allowance for the 
 damage occasioned by the jettison, and the charges 
 of recovery."' Should the goods be recovered be- 1^^°^^' '^''*- 
 fore the distribution of the loss, the proprietors will 
 be entitled to claim in general average only the dam- 
 age actually sustained, and the charges expended." « Hamb. Ord. 
 
 The freight on goods lost by jettison must, con- 22 ^aTt. 13'^' 
 formably to the nature of the case, be likewise com- Swed. art. iv, 
 pensated for by general average, and in full, because YvewU of 
 the ship-owner would otherwise suffer through the goodl thrown 
 
 jettison. He sacrifices the freight for such goods, i*Jngs°to gen- 
 eral average. 
 
 (1) In the case of BirMcy v. Presgrave, (1 East, 220,) an 
 objection having been taken, that it did not appear that the 
 master consuhed the crew upon the expediency of the sacri- 
 fice, the court said, that this was a rule rather of prudence 
 than necessity, and in no dej^ree necessary to constitute the 
 claim, though it might lie a good proof of the legree of 
 perih (a) 
 
 (rt) The doctrine is the same in tlie United Stales. — Ed.
 
 104 
 
 Of Average. — Benecke. 
 
 o Av. art 1, 
 
 No. 11. 
 
 P See the 7t]i 
 Chapter. 
 
 Damage by 
 jettison to the 
 vessel and the 
 goods left ill 
 her. 
 
 q Abbot, ch. 
 
 8, § § 4 & 7. 
 
 »• Ord. de la 
 mar. Tit. du 
 jet. art. 14, 
 and 18 ; Tit. 
 des avaries, 
 art. G; Code 
 
 and has consequently the same claim upon the prop- 
 erty preserved, with regard to the freight, as the 
 proprietor has with regard to the goods. The Da- 
 nish artick^.s, however, enact, that the freight shall 
 be allowed only in proportion to the voyage per- 
 formed." If the jettison be compensated for accord- 
 ing to the value at the place of destination, (which 
 is done in England, and in several other countries,)'' 
 it is understood that the proprietor must pay the 
 freight, or, which amounts to the same, that the 
 freight is deducted from the amount of the compen- 
 sation Avhich he receives. 
 
 To general average belongs also the damage which 
 is done to the vessel, in order to facilitate jettison, 
 and that which the goods remaining on board sustain 
 by the jettison, and by the steps taken in order to 
 effect it ; from wliicli, however, it is necessary to 
 distinguish the damage which the ship and cargo 
 may accidentally sustain during the jettison '^ By 
 the Hamburgh Insurance Law (Tit. 22, art. 9, No. 
 8,) ' all that which for the common good is cast over- 
 board, or is damaged in consequence of the jettison, 
 or in any other way for the preservation of ship and 
 cargo, is general average.' The French law enacts, 
 in regard to the vessel, ' That no contribution on 
 account of the damage she may have sustained shall 
 take place, unless it have been incurred for the ex- 
 press purpose of facilitating jettison ; but, that when 
 a ship in consequence of previous deliberation (which 
 is always presupposed) is opened for the purpose of 
 taking out the goods, the latter are to contribute to 
 the repair of the damage done to the vessel.' And 
 in regard to the goods, ' That the damage done by 
 the jettison to the goods remaining on board, belongs 
 to general average. '"■ Thus if a vessel's hatches be 
 cut open, in order to obtain the goods with more 
 expedition, this is general average ; but if, during 
 this operation, any thing belonging to the vessel
 
 Of Average. 105 
 
 should break, the damage thus occasioned is a par- ^e Com. art. 
 ticular average for the vessel. If goods conveyed '^^^- 42G, & 
 upon deck, in order that the coarser goods below also Swed. 
 may be got at, be washed overboard : or if by the *^^^- ' ^^'¥* 
 
 1 /• 1 1 1 • /• 1 concerns jet- 
 
 neglect oi those at work, or by the motion oi the tison; § 3; 
 ship, they roll into the sea ; or if the goods brought Av"iatr No 
 on deck, or those uncovered in the hold, on account C; OrcLdeBii- 
 of the jettison, are damaged by the sea-water, all art!'i3." ' 
 these losses belong to general average. The dam- 
 age, on the contrary, which takes place during the 
 jettison, by sea-water entering through other open- 
 ings than those made for the purpose of the jettison, 
 are a particular average. — That damages occasioned 
 by jettison are to be sustained by a general contribu- 
 tion, is asserted even in the Roman laws. ' What 
 difference (say they) does it make, whether goods 
 are lost by being cast away, or damaged by being 
 uncovered ? If he whose goods are so lost is to be 
 relieved, he also whose property has been so damaged 
 ought to be indemnified.'' (ci) * L-4, § 2, de 
 
 Yet in determinins; the allowance for damage it o =' ^^"'^^ "~ 
 
 o _ o teee also 
 
 would, for reasons which will be stated hereafter, be Quint. Weijt- 
 just to attend to the quality of the goods injured, van t'^Recht 
 and to grant less allowance for those which are sub- der Neder- 
 ject to decay, than for those which are not. Avarijen, 
 
 By almost all the ancient and many modern laws, § ^"^ 
 however, the loss occasioned by jettison is to be thfTCs"ens 
 borne by the whole, only if the preservation intend- not saved. 
 ed has really been accomplished.^ The 9th article t l. 4 & 5 de 
 of the 22d tit. of the Hamburgh Insurance Law, cf^g^'So 'del 
 says : ' When a ship in a storm, or in endeavouring Mare, cap 
 to escape from an enemy, is not saved by the jetti- 
 son, but is notwithstanding lost or taken, then no 
 
 (a) The cargo being damaged by a leak, caused by cutting 
 away the inast, this damage is included in the general aver- 
 age. Maggrattc v. Church, 1 Caines, 214, cited 1 Phil. Ins. 
 334. _ Ed. 
 
 14 
 
 194.
 
 106 ' Of Average. — Benecke. 
 
 average is to take place ; but whatever may be saved 
 from the wreck, or recovered from the enemy, re- 
 mains for him alone, to whom it belongs, without 
 contributing towards the goods lost.' The French 
 law likewise says, ' When the vessel is not saved by 
 the jettison, no contribution is to take place : The 
 goods saved are not held liable to any payment or 
 n Ord. Tit. indemnification for the goods lost or damaged.'" 
 Co^e*^'an* /4' ^^^ these regulations, as observed before, are con- 
 trary to the nature of the subject, since nobody has 
 a right to attempt the preserv ation of the whole, at 
 the risk of an individual. This will be made clearer 
 by an example. — A French vessel, in order to es- 
 cape from the pursuit of an English privateer, threw 
 overboard her guns, part of her apparel, and 100 bar- 
 rels of rice. She nevertheless was taken, but six 
 days afterwards she made her escape and ran into 
 Corsica. Emerigon, who with another lawyer was 
 consulted upon this case, decided according to the 
 law just mentioned, that no contribution could take 
 ^ I. p. 616. place.' — The unreasonableness of this decision is 
 apparent, if the case is considered according to its 
 nature and not according to positive laws. Every 
 party interested would, at the moment of danger, 
 had he been present, have willingly consented to 
 pay for the goods which must be sacrificed to give 
 the vessel a chance to escape, even if the attempt 
 should fail, and the vessel with her remaining cargo 
 be saved in some other way. The attempt lo save 
 was in itself of value to all parties, consequently all 
 parties ought to concur in the loss. Those goods, 
 if not thrown overboard, would have been saved like 
 the rest, out of the enemy's hands, and their owner 
 would have been in the same situation as the rest of 
 the parties. Consequently he ought to be placed in 
 the same situation by a general contribution, if, after 
 an unsuccessful attempt to save the whole by jetti- 
 son, it be afterwards saved by any other means.
 
 Of Average. 107 
 
 The same arguments apply to a jettison occasioned 
 by a peril of the sea, but not ])roducing the desired 
 effect. If nothing be saved, the owner of the goods 
 thrown overboard can have no claim upon the owner 
 of the other goods lost, because he loses nothing by 
 the jettison but what would also have been lost with- 
 out it, since his goods, had they remained in the 
 ship, would have shared the fate of the rest. But if 
 some goods be saved, the proprietor of the sacrificed 
 goods is entitled to a compensation, the extent of 
 which will be more particularly investigated in an- 
 other Chapter, under the head of ' estimate of the 
 property sacrificed.' This requires to be attended 
 to, if a ship after jettison should run ashore, and a 
 considerable part of the cargo be saved, although it 
 cannot apply when only a trifling part of the cargo 
 is fished up or otherwise preserved, (ci) 
 
 The proposition advanced is confirmed also by the 
 opinion of JVeijtsen, who expresses himself in the 
 following manner : (§ 33.) ' If a vessel should be 
 in danger, and after goods have been sacrificed 
 in order to lighten her, should nevertheless be 
 wrecked, the goods saved or fished up must contri- 
 bute for the jettison, because it has been resorted to 
 
 («) The doctrine of the American cases agrees with that 
 laid down in England, namely, that to entitle the parts to 
 contribution for a sacrifice by jettison, the impending peril 
 must be avoided. See cases cited 1 Phil. Ins. 341. But the 
 reasons given by Mr Benecke in opposition to this doctrine 
 are certainly very forcible, and to my mind conclusive. See 
 note supra in this chapter. See also 2 Phil. Ins. c. 15, <§, 3. 
 On this question, a gentleman skilled in the principles and 
 practice of insurance, says, ' If there be a jettison, a wreck of 
 the ship, and some part of the cargo nevertheless saved, it 
 seems reasonable to suppose that circumstances would warrant 
 a contribution for the goods thrown over.' And in reply to 
 an inquiry as to the practice in Philadelphia, an eminent des- 
 pacheur of that city, says, ' It is not necessary the peril 
 should be avoided ; the act constituting the ground for the 
 ^lairn, and not the result.^ — En.
 
 108 Of Average. — Benecke. 
 
 with a view to save the ship and the rest of the 
 goods, and because, if those goods had not been 
 sacrificed, their owner might have saved or recovered 
 them all or in part, as the other owners have done, 
 but of which possibility he was deprived by the jet- 
 tison.' TVeijtsetis commentator, it is true, adds, 
 that this is to be understood only of vessels miscar- 
 rying some time after the jettison, and in another 
 place ; but for this qualification he gives no reasons, 
 nor can any be discovered in the nature of the sub- 
 ject. 
 w What is not The Swedisli Ordinance of insurance says," — ' If 
 ave°raf'e"VH ^ ^^"P ^^^^^' j^ttisou should bc lost or takcu, so that 
 nothing from it be saved or retained, no average is 
 to take place.' From which it appears that a con- 
 tribution shall be made, if any thing be saved or 
 recovered. 
 ^ Ord. de Bii- The Spanish law^ expressly enacts, that ' If goods 
 art°'i6.' ~ ' be thrown overboard for the purpose of preserving 
 others, and the ship notwithstanding be afterwards 
 wrecked on the coast, those goods which are saved 
 are to pay for those which were sacrificed, these 
 latter as well as the salvage charges being brought 
 « into an average, and regulated as such according to 
 
 the proportionate value of the lost as well as the 
 saved goods.' 
 
 The Prussian law (^ 1790) declares in general, 
 that a general average can only take place, if, by 
 the expense or damage incurred, the preservation 
 be partly or wholly accomplished. 
 Vessel pre- If the ship with her remaining cargo, after having 
 
 tis7n>'![sub- been preserved by jettison, should in the farther 
 yequentiy lost, coursc of her voyagc be wrecked, and a part of the 
 goods saved, then the goods so saved are to con- 
 tribute to the loss sustained by the jettison. This 
 rule follows from the nature of the subject, and is 
 confirmed by the ancient as well as modern mari-
 
 Of Average. 109 
 
 time laws.^ Ship and goods were liable to contri- y Emer. i. p. 
 bution from the moment of preservation, and this author" 
 liability continues while the whole or any part of cited by him ; 
 
 , -^ . . . rr^, . • V Abbot, ch. 8, 
 
 them remams m existence. — ihis case is not ma- § 13; Hamb. 
 terially different from that considered before, of a o^'^-^i^-^^' 
 vessel not preserved by the jettison ; it is thereiore deiamar.Tit. 
 subject to the same rules of contribution. ££ml424- 
 
 Goods ultimately saved, which had been thrown Dan.iii,i,&c. 
 overboard, contribute nothing towards a loss of ship 
 or goods after the jettison ; for the subsequent loss 
 is quite independent of the jettison, and must be 
 borne by those whom it concerns.^ l^ Emer. i. p. 
 
 All damage purposely done to the vessel to pre- ?7;'code,art! 
 serve the whole from an impending danger, is gen- 4^5; Dan. 111,2. 
 eral average.^ Such is the cutting away of masts, JJ^^e^esser 
 rigging, &c, when the ship is in distress ; the cut- for the com- 
 
 ,• 1* • r 1 ^ •,],*„ men benefit. 
 
 tine; or slipping: irom anchors, to avoid running ,, ^ , , 
 
 != 11 b r ^ r r i ^ Masts, cables, 
 
 ashore, or being run loul ol, or tor the purpose 01 &c, cut. 
 gettine: clear of another vessel, &c. The Hamburgh * l.2, § i,de 
 Ordinance of insurance says, ' All the rigging and ''^' '°' ' 
 apparel, cut, slipped, or worn for the preservation of 
 ship and cargo, are general average.' The Prussian 
 — ' It belongs to general average if masts, sails, 
 yards, rigging, anchors or any other apparel are pur- 
 posely cut, slit, worn, or otherwise damaged or cast 
 overboard, for the preservation of the ship and the 
 goods ; also, if, for the same purpose the boat must 
 be cut from her scantlings and hauled overboard. 
 And the French law — 'Cables and masts, broken 
 or cut for the common benefit, and anchors or other 
 things abandoned for the same purpose, are general 
 average. "' How the word ' broken' is to be under- ^ Hamb. Ord. 
 
 o ^ _ 'Yit 21 art 9 
 
 stood will be explained below. No. f/pruss! 
 
 To this must be added, although not expressly jg^^'^i^/^^ ^^^" 
 mentioned in all the laws, the damage done to the des av. art. 6 ; 
 vessel, by cutting holes to let out the water, which Code, art. 40o. 
 is collected upon deck by the shipping of heavy seas. 
 
 It will not be superfluous to observe here, that it
 
 110 Of Average. — Benecke. 
 
 Kcioi cuttbii^ is not the act of cutting cables, sails, &c, which jus- 
 is not the cri- ^.^^^ ^ Q\:^m\ for general average, especially in this 
 country : a notion which has been but too prevalent, 
 especially amongst foreigners, and which has led 
 them into many mistakes. In many instances it is 
 very difficult, and requires the strictest investigation 
 of all circumstances, to determine whether ship's 
 furniture, cut away or otherwise sacrificed, should 
 or should not be the subject of general contribution. 
 The following observations, however, I hope, will 
 be. admitted to be founded upon the nature of the 
 subject : — ^ 
 
 Sails blown When a vessel is in a perilous situation, it is the 
 away, &c. niastcr's duty to use all endeavours to extricate the 
 ship and cargo, intrusted to his care, from such peril, 
 and if in so doing sails are blown away, masts are 
 sprung, or the hull of the vessel injured, this cannot 
 entitle him to restitution, because he has done no 
 more than he was bound to do. — Again, if his situ- 
 ation were such that, but for a voluntary destruction 
 of part of the vessel or her furniture, the whole 
 would certaitily and unavoidably have been lost, he 
 could not claim a restitution, because a thing cannot 
 be said to have been sacrificed which had already 
 ceased to be of any value. But if there be a possi- 
 bility of saving the ship and cargo, without volunta- 
 rily destroying part of the vessel, or of her furniture, 
 (which possibility is to be supposed in most cases,) 
 and the master deliberately resorts to this measure, 
 because he thinks it more prudent to sacrifice a part 
 than risk the whole, then he has made indeed a 
 sacrifice for the benefit of all concerned, and is en- 
 titled to restitution ; for it is not his duty to destroy 
 what might otherwise have been saved, at his own 
 expense, merely to give the cargo a better chance of 
 Mast cut away escaping the danger. — Thus, when a mast is cut 
 ?esrcWight. away to righten the vessel, which was in imminent 
 danger of being capsized, this is general average ;
 
 Of Average. \ 1 1 
 
 for the vessel might possibly have lightened without 
 the mast being cut, and the mast have been saved 
 v\^ith the rest. But it was sacrificed to give the ship 
 and cargo a better chance of escaping the danger, 
 consequently all who had the benefit of this better 
 chance are obliged to contribute to the expenses. 
 
 If of two cables, happening to cross and chafe each Cables cross- 
 other, one is cut, merely for the purpose of saving putl*"^ "^^^ 
 the other, this is a particular average ; but if, under 
 similar circumstances, a cable be cut, to prevent a Cable cut to 
 vessel adrift being cast upon a lee shore, when there hiras'iiore! 
 was a possibility of disentangling and saving both 
 cables and anchors, it will be a general average, for 
 then a cable and anchor w ere sacrificed to give the 
 ship and cargo a better chance of escaping the dan- 
 ger, and I can see no distinction between this case 
 and a mast being cut. 
 
 When a mast is carried away in a storm, and Rigging hang- 
 hanging in the rigging, and the latter is cut away to slles.^^'^ ^ ^^ 
 get rid of the broken mast, it is the practice in most 
 countries to allow for the rigging so cut in general 
 average, at the value which it may be supposed to 
 have had under those circumstances. But in this 
 country no such allowance is made, because, it is 
 said, the rigging was then of no value at all. But 
 this, I conceive, is not the true cause for rejecting 
 such claim for an article w^hich cannot be denied to 
 be still of some value. The true cause, as it appears 
 to me, is, that under such circumstances, generally 
 speaking, it would be hnpossihle to work the vessel 
 without cutting away the broken mast and the rig- 
 ging in which it is intangled, so that this act was 
 not optional but dictated by necessity, and conse- 
 quently there was no sacrifice. But if such a cir- 
 cumstance occurred in sight of a port, which the 
 vessel might reach without the rigging being cut, 
 and this measure be resorted to merely to facilitate 
 the manoeuvring of the vessel, and to give her and
 
 112 Of Average. — Benecke. 
 
 the cargo a better chance of escaping the danger, in 
 that case it would indeed be a sacrifice, and the rig- 
 ging so cut away ought to be allowed for, at the 
 ' • value which it would have had if not cut away. — 
 
 The same remark applies to other ship's implements 
 getting intangled with the sails or rigging by acci- 
 dental circumstances, so that such implements, if 
 they might have been saved, but are vohmtarily cut 
 away for the benefit of the whole, (but not other- 
 wise,) must be replaced at the value which they 
 would have had if saved with the rest. 
 Sails let go to It frequently occurs, that the log-book and protests, 
 righr/ '^* especially of foreign ships, say, that the vessel hav- 
 ing been thrown on her beam-ends in a storm, it 
 was necessary to cut away sails in order to righten 
 the vessel, or that for the same purpose the halliards 
 and sheets have been oblio;ed to be cut. This oc- 
 currence is a source of frequent disputes. Now, as 
 to cutting sails under such circumstances from the 
 yards, it will appear to every one, and is confirmed 
 by all nautical men whom I have consulted upon 
 this subject, that when a vessel is in that situation 
 it is impossible to get at the yard, which then must 
 necessarily touch the water, in order to cut away 
 the sails. The proper way would be to let go, by 
 which manoeuvre the pressure of the wind upon the 
 sails will immediately cease, so that there is no oc- 
 casion to cut the halliards, which would indeed re- 
 quire more time than to untie them. But in either 
 case the sails thus exposed are liable to be blown to 
 pieces, and will then have been sacrificed for the 
 benefit of the whole. And I am inclined to believe, 
 that frequently, from the mistaken idea that cutting 
 is necessary to constitute a general average, and 
 that without this they would not be entitled to resti- 
 tution, masters order halliards, &c, to be cut, merely 
 to enable themselves to say in the protest that they 
 made use of the knife or axe. In all these, and
 
 Of Average. 113 
 
 many similar occurrences, it is necessary that expe- 
 rienced and impartial nautical men should examine 
 the circumstances of the case, in order to determine 
 whether the damage is or is not a subject for general 
 contribution. 
 
 Moreover, the ship's furniture cut and thrown Cables on 
 overboard, must have been kept at their proper ^^'^^' 
 places, to entitle the owner to restitution. If cables, 
 for instance, which ought to have been stowed in 
 the ship's hold, were laid or lashed upon deck, and 
 there incumbering the mariners, or being loosened 
 by seas shipped, are obliged to be cut and thrown 
 away, such a loss would be owing to the master's 
 negligence, and for that reason could not belong to 
 general average. 
 
 When, by cutting away masts, sails, &c, or by any caseofsubse- 
 other voluntary damage done to the vessel, the in- quentdamage. 
 tended preservation is not accomplished, it is not 
 usual to make any restitution in general average. 
 This is perfectly right if the vessel be totally lost ; This seems to 
 for it may be presumed, that without the means em- J^j^jJ posjJon"' 
 ployed she would likewise have perished, and that See notes Su- 
 consequently nothing was sacrificed. But if the p"^^ ~~ 
 wreck be saved, the cables cut, anchors lost, &c, 
 might also have been saved had they not been sa- 
 crificed : they ought, therefore, strictly speaking, to 
 be made good at the value which they would have 
 had after shipwreck, and that value again ought to 
 be reduced in proportion to the deterioration of the 
 merchandize preserved. But in cases of shipwreck 
 in general, the value w hich the sacrificed apparel 
 would have had if preserved, is so small, and the 
 difficulty of ascertaining it so great, that no notice 
 can be taken of it. 
 
 When boats are obliged to be cut away from the Boats cut 
 ring-bolts, to which they are fastened upon deck, ^^^"^' 
 and thrown overboard, it cannot be doubted that 
 their value is to be allowed for in general average. 
 15
 
 114 
 
 Of Average. — Benecke. 
 
 •= Weiitsen, 
 § 21. •• 
 Crowding 
 sail. 
 
 d See above, 
 p. 173. 
 
 But, if by negligence, they were left outside the ves- 
 sel, or hung to the davits over the ship's stern, the 
 room appropriated for them on deck being filled with 
 goods, it is proper that no compensation should take 
 place.'' {(i) 
 
 When a ship carries a press of sail to avoid a lee- 
 shore, or to escape from the enemy, it becomes a 
 question, whether the loss incurred by sails being 
 blown away, masts sprung, and the injury done to 
 the hull of the vessel by extraordinary straining, &c, 
 should be compensated for in general average. — It 
 may not be improper to make a few observations 
 upon this subject especially as the proceeding in 
 such cases, which the law of England recognizes, 
 is different from that which the laws and customs of 
 other countries sanction. (6) 
 
 On the one hand, it may be contended, that the 
 master is indeed making a sacrifice, when, in order 
 to avoid a lee-shore or a rock, or to effect his escape 
 from an enemy, he determines upon an act which he 
 knows will be very injurious to the vessel, although 
 she might possibly escape that danger without this 
 measure being resorted to. — If this be admitted, the 
 loss will be a general average, although no special 
 thing was selected to be purposely destroyed.'^ And 
 this is the reason why, in most foreign countries, 
 claims of this nature are admitted in general aver- 
 
 (a) The ju.stness of the claim for the sacrifice of a boat 
 carried on the side or at the stern, depends on the propriety 
 of so carrying it. Some underwriters consider it expedient 
 so to carry a boat, for the purpose of readily lowering it in 
 case of a man falling overboard or other accident ; and ac- 
 cordingly pay for the loss of a boat so carried without objection. 
 The practice in Philadelphia is said to be to pay for a boat so 
 carried. Some underwriters in Boston make no objection to 
 the loss in such case, others think that the boat so carried is 
 not covered by the policy. — Ed. 
 
 {h) Damage caused by carrying a press of sail is not gen- 
 eral average in the United States. See 1 Phil. Ins. 336. — Ed.
 
 Of Average. 115 
 
 age. — On the other hand, it is difficult, if not al- 
 together impracticable, to decide with precision to 
 what extent a master is obliged to expose his vessel, 
 and when that obligation ceases, it is generally 
 admitted, that the master is not bound to destroy, 
 at the ship-owner's expense, any part of the vessel, 
 or of her furniture ; but it may be very properly es- 
 tablished as a rule, that every other exertion lies 
 within the bounds of his obligation as a carrier ; for 
 otherwise those occurrences will often serve as a 
 pretext to make the proprietors of the cargo pay as 
 general average what, according to circumstances, 
 either belongs to particular average on the vessel, 
 and as such is to be borne by the underwriter, or 
 what ought to be considered only as wear and tear. 
 
 This question, however, has been entirely set at Covington v. 
 rest in this country, by a decision of the court of ^ew Rep^s 
 Common Pleas. — A vessel, in order to escape from 378. 
 an enemy, had hoisted ' so much sail, as in a com- 
 mon case would have been inexcusable,' by which 
 she had sustained considerable injury. The court 
 determined the loss not to be a subject for general 
 contribution, but a particular average at the charge 
 of the underwriters. 
 
 In the Ordonnance de la Marine,'' it is said, that e Tit. du jet, 
 ' If a master, by storm, or pursuit of privateers, or '^'^'^ ^ ^ ^ 
 pirates, is obliged to endanger his masts by crowd- 
 ing sail, (de forcer ses voiles) it is general average.' 
 Valin, in his commentary on this passage, cites a 
 decision by the court of Admiralty at Marseilles, in 
 which the springing of masts, occasioned by a press 
 of sail to escape from an enemy, was declared gen- 
 eral average. Emerigon, in quoting the same de- 
 cision, adds that sails blown away on such occasions 
 should also be compensated for, because forcer les 
 mats and forcer les voiles (to crowd sail) mean the 
 same thing.' No particular mention is made of the f i^62i. 
 damage done to the hull of the vessel by crowding
 
 116 Of Average. — Benecke. 
 
 sail. — In the Code de commerce crowding sail is not 
 mentioned under the head of jettison in the same 
 manner as in the above cited articles of the Ordon- 
 nance ; but the passage in ^ 400, according to which 
 the masts broken for the general benefit also belong 
 to general average, necessarily relates to crowding 
 sail, which is perfectly conformable also to Vcdin^s 
 explanation of this word in the 6th article. Tit. des 
 Avaries. For this reason, probably, the term rompu 
 (broken) has been retained in the paragraph of the 
 Code just mentioned, in spite of the representations 
 made against it by the tribunal of commerce at Caen, 
 g Obscrva- qu account of the abuses which it might occasion.^ 
 
 tions cics tri" " 
 
 bunaux, &c, I havc, howcvcr, seen several French statements 
 d'u^CodeTe ^^ general average of a later date than the Code de 
 commerce, T. commcrce, in which the damage sustained by crowd- 
 ~' P ' ing sail, was not admitted as a subject for contri- 
 
 bution. 
 
 The Prussian law enacts, that ' If to avoid a lee- 
 shore, or cliffs, the master of a vessel be obliged to 
 crowd sail for the preservation of the whole, the 
 damage done to the ship and her apparel is to be 
 h § 1824. compensated for in general average.'' 
 
 The Hamburgh law makes no express mention of 
 
 ' crowding sail,' but the practice is, to consider the 
 
 damage thereby done to the vessel a general average. 
 
 Damage to The damage which the goods sustain in conse- 
 
 the goods by fnig^cg of 3 vcsscPs crowdino; sail, is nowhere al- 
 
 crowding i i • i i i 
 
 sail, &c. lowed m general average ; nor could any good reason 
 be assigned for making such allowance. — The in- 
 i Wcijtspn, jury which the goods lying close to the pump re- 
 ins%^'v/h ^^i"^® ^y openings cut into the vessel to convey the 
 belongs to av- watcr Standing upon deck to the pump, must be 
 OrFde^Bii- Compensated ior in general average.' 
 bao, c. 20, The loss of anchors and cables which, upon ex- 
 
 Loss by an- traordiuary occasions, are not cut, but in some other 
 choring in y^r^j exposcd and lost for the preservation of the 
 piac^es. whole, greatly resembles that occasioned by crowd-
 
 Of Average. 117 
 
 ing sail ; as when a vessel, in order to avoid cliffs 
 and shoals, or a lee-shore, casts anchor upon a stony 
 ground. Weijtsen is of opinion (^ H) that a loss 
 thus occasioned, although it belongs not, properly 
 speaking, to general average, ought nevertheless to 
 be compensated for in consideration of the benefit 
 derived from the act which occasioned it. And Ma- 
 gens (p. bS) judiciously observes, that the under- 
 writer's own interest requires him to indemnify the 
 master upon such occasions, because otherwise he 
 would be discouraged from exposing more cables and 
 anchors at his own peril, after the loss of the first, 
 to prevent the ship's running ashore at the peril of 
 the underwriters. He leaves it, however, undecided 
 whether such a loss of anchors and cables belongs 
 to general or to particular average.'" (a) ^^^^'^ ^ below, 
 
 When a vessel, not being in a condition to con- Repairs and 
 tinue her voyage, puts into a port in order to repair, po^ entered ^ 
 it becomes a question, whether the expenses thereby in distress. 
 incurred are general or particular average. This 
 question will require our serious investigation, being 
 a subject upon which the views of legislators and 
 authors, as well as the different customs introduced, 
 are much at variance, and even contradictory to each 
 other. 
 
 If, setting aside all laws and received opinions, the 
 
 (a) In a case decided by referees in Boston, the value of 
 an anchor and cable was allowed in general average, where 
 the cable was cut because the anchor, being fixed in a rocky 
 bottom, could not be raised ; the object being to anchor in a 
 more safe place, as the vessel then lay very near to a lee-shorc. 
 The reason of allowing the anchor and cable in general av- 
 erage was, that it did not appear but that, if the weather had 
 not been unfavourable and there had been no impending peril, 
 the anchor might have been raised. 1 Phil. Ins. 233. But 
 the damage or loss incurred merely by anchoring in an un- 
 usual place, no voluntary sacrifice being made, is not general 
 average. Id. 33.5. — En.
 
 118 
 
 Of Average. — Benecke. 
 
 /' 
 
 case is examined merely according to the funda- 
 mental maxims which regulate general and particu- 
 lar average, it will in the first instance appear evi- 
 dent, that not only all the port charges, such as 
 pilotage, harbour dues, lighterage, &c, but also the 
 charges of unloading and reloading, repairs and 
 crew's wages, will be general average, if the ship 
 put into port for the mere purpose of repairing 
 a damage voluntarily incurred for the general advan- 
 tage. For all these exjDenses, being the necessary 
 consequences of a measure taken for the general 
 benefit, belong to general average. A doubt which 
 might be raised respecting the expense last mention- 
 ed, will be considered below. 
 
 If a port be sought in consequence of some fault or 
 neglect of the master's, if, for instance, the ship had 
 not been sufficiently victualled, apparelled, &lc, all 
 expenses arising from that measure must necessarily 
 fall upon the master and his owner. 
 
 If an intermediate port must be entered, because 
 the vessel, in consequence of a particular damage 
 sustained, is unfit to prosecute her voyage, as when 
 masts, sails, or other requisite apparel, are lost in a 
 storm, or the vessel has sprung a dangerous leak : 
 all the expenses of entering the port are a subject of 
 general average, being the consequence of a measure 
 voluntarily taken for the preservation of the whole. 
 But as soon as the object of putting the vessel and 
 her cargo in safety is accomplished, the cause for 
 general contribution ceases ; for whatever is subse- 
 quently done, is not a sacrifice for the benefit of the 
 whole, or for averting an imminent danger, but is 
 the mere necessary consequence of a casual misfor- 
 . , tune. If^ owing to the injury sustained by the ves- 
 '1 sel, the cargo must be landed, to prevent its being 
 more damaged, the charges, of unloading, housing, 
 insuring against fire, reloading, &:c, very properly 
 , fall upon the proprietor of the cargo. For the land-
 
 Of Average. 119 
 
 ing is a necessary consequence of the misfortune 
 which had occurred, and cannot be said to be re- 
 sorted to for the purpose of enabling the vessel to 
 proceed upon her voyage when repaired, since the 
 goods would have been landed also if the voyage 
 could not have been prosecuted. The vessel, there- 
 fore, ought not to be charged with a part of those 
 expenses, which were not intentionally incurred for 
 her benefit, but which only incidentally became use- 
 ful to her. Even if the unloading were resorted to 
 merely for the purpose of repairing the vessel, still it 
 being the natural consequence of a particular aver- 
 age, and taking place after the ship and cargo are in 
 safety, it cannot be a general average. — It would 
 also, strictly speaking, be wrong to ajDportion the 
 charges of loading and reloading, warehouse-rent, 
 &c, among the respective owners of the cargo, ac- 
 cording to the value of the goods (as is always done 
 in general average,) because the owner of valuable 
 goods in a narrow compass cannot be obliged to bear 
 an equal share in those charges with the proprietor 
 of bulky articles of small value. 
 
 If the damaged vessel, after unloading, is repaired, 
 the object of this measure is, to restore the ship to 
 her former condition, and to enable her to carry the 
 cargo to the place of its destination. The repair of 
 the vessel, by itself, is evidently not an object which 
 concerns the shipper, and to which he can be obliged 
 to contribute. Inasmuch as it tends to forward the 
 voyage, the repair of the vessel certainly concerns 
 the shipper ; but he has a right to demand it, with- 
 out being under an obligation of contributing to the 
 expense : for by virtue of the contract of affreight- 
 ment, the ship-owner is bound to forward the cargo 
 to the port of its destination, and from the fulfilment 
 of this contract nothing short of impossibility can 
 excuse him. To repair the damage accidentally 
 sustained by the vessel, if it admits of being repaired.
 
 1 20 Of Average . — B e ne eke . 
 
 is therefore a duty incumbent upon the ship-owner 
 by the contract of affreightment, and it is counter- 
 balanced by the merchant's obligation of either wait- 
 ing for the repairs at the intermediate port, or of 
 paying full freight : consequently the expenses thus 
 incurred, however they may exceed what the same 
 repairs might have cost in another port, as well as 
 the maintenance and wages of the sailors during the 
 time of the repairs must fall upon the owners. 
 
 But the ship-owner's own interest dictates the re- 
 pairs at the intermediate port. He would lose, ac- 
 cording to circumstances, either the whole or a pro- 
 portional part of the freight, if he did not repair ; 
 and this loss would, in most cases, more than coun- 
 terbalance what he might save by terminating the 
 voyage, and dismissing the crew. 
 
 Again, there may be cases in which the charges of 
 repairs at the intermediate port are not higher than 
 at the port of destination (where, according to the 
 generally-adopted principles, they would have fallen 
 entirely upon the owner), when, for instance, the 
 prices of labour and materials are in both places the 
 same ; nay the delay for repairs at the intermediate 
 port may be manifestly to the prejudice of the pro- 
 prietors of the cargo, when other vessels can be ob- 
 tained to forward the cargo speedily at a moderate 
 freight. The expense of repairs, therefore, and the 
 maintenance and wages of the crew cannot, agreea- 
 bly to the nature of the case, be a general average. 
 
 When the cause for which the vessel is obliged to 
 put into a port in distress, is of a mixed nature, it 
 becomes necessary, to distinguish whether the gen- 
 eral or the particular average incurred was the prin- 
 cipal cause, and what expenses were occasioned by 
 each. If a vessel, for instance, has sprung a danger- 
 ous leak, and at the same time, by extraordinary ex- 
 ertions for the general interest, has lost anchors and 
 cables ; then only so many days' wages and mainte-
 
 Of Average. 121 
 
 nance of the crew at the intermediate port ought to 
 be placed to general average, as would have been 
 employed in providing those articles, had their loss 
 been the only cause of entering the port. 
 
 The above theory corresponds with the Roman 
 law, as far as it touches upon the subject in question. 
 
 A vessel bound to Ostia suffered considerably by 
 storm ; her mast, yard, and some other furniture 
 were burnt by lightning. She put into Hippo, and 
 after having speedily provided what was requisite, 
 she completed her voyage and delivered her cargo 
 in good condition. A question arose, whether the 
 proprietors of the cargo ought to contribute to the 
 repairs of the vessel ? which was decided in the 
 negative, because the expenses had been incurred 
 rather for the benefit of the vessel than the preserva- 
 tion of the cargo.' — It does not appear whether any i L. edeleg. 
 expenses were occasioned by entering the interme- ^° ' 
 diate port, whether the vessel required to be un- 
 loaded, &c ; it, therefore, remains undecided here, 
 whether those expenses are to be allowed or not. 
 
 Most of the ancient commentators agree in the 
 principle upon which this decision is grounded,"" but ^ Roccus de 
 in modern times it has been greatly deviated from. ei^anTothers. 
 Riccard says, ' when a vessel is forced by storm to 
 make a port in order to repair the damage sustained, 
 being unable to prosecute her voyage without the 
 risk of being totally lost, the wages and maintenance 
 of the crew, from the day on which it was deter- 
 mined to seek a port for repairing the vessel, to the 
 day of departure from that port, are considered a 
 general average; also the charges of landing and 
 reloading, pilotage, and other dues and charges 
 occasioned by that measure.'" " Negoce 
 
 In this country it has long remained undecided p. 280.*'^ ThT' 
 whether wa";cs and maintenance of the crew during; same passage 
 
 1 . S, . , . ,. /^ we find in 
 
 the repairs oi a particular average at an intermediate Beawes, p. 
 16 150.
 
 122 
 
 Of Average. — Benecke. 
 
 Law and 
 practice in 
 England ; 
 Da Costa v. 
 Newnliarn, 
 
 2 T. R. 407. 
 
 Jackson v. 
 Cliarnock, 
 8 T. R. 50!). 
 Plummer v. 
 Wildman, 
 
 3 M. & S. 
 482. 
 
 Wages and 
 provisions not 
 included in 
 England. 
 
 port belong to general average or not. It seems 
 that formerly the courts rather inclined towards the 
 affirmative, and that they even considered the repairs 
 themselves as constituting a claim for general aver- 
 age. At a later period, however, Lord Kenyon 
 seems to have disapproved of the latter doctrine. In 
 a more recent case, where a ship, bound from Jamai- 
 ca to London, was run foul of by another vessel, two 
 days after the ship's sailing, by which accident her 
 stern and several knees were broken, and the master 
 was obliged to cut away part of her rigging and 
 return to Jamaica to repair the damage, which repairs 
 were necessary to enable her to prosecute the voyage ; 
 and where the owners, upon the vessel's return to 
 London, made a demand upon the freighter for his 
 share of general average, in which they included the 
 expense of the pilotage into Kingston, that of un- 
 loading and reloading the cargo, the wages and pro- 
 visions of the crew, and the amount of repairs : 
 Lord Ellenhorough said, ' that if a ship be obliged, 
 from any cause whatever, to return to port for the 
 safety of the whole concern, those expenses which 
 are absolutely essential to enable her to prosecute 
 her voyage may be considered as general average ; 
 but if the ship, by such expenditure, gain a lasting 
 benefit, there must be a deduction on that account 
 of so much, which must be placed wholly to the 
 ship-owner's account. That the repairs, with the 
 foregoing limitation, were general average ; so, like- 
 wise, the expenses of unloading the cargo to make 
 them. But not the wages and provisions of the 
 crew, the captain's expenses during the repair, the 
 crimpage for replacing deserted seamen, or the like.' 
 Mr Justice Baijley said, ' he doubted whether the 
 repair of any particular damage could be placed to 
 the account of general average, inasmuch as it is a 
 benefit done to the ship, and if the captain could 
 make it a general average, by putting into port to 
 repair, it would always be his interest to endeavour
 
 Of Average. 123 
 
 to do so. If, however, the repairs were merely such if tiie repairs 
 as were necessary to enable the ship to prosecute ^^'^ tempo- 
 her voyage home, and were afterwards of no bene- 
 fit to the ship, such repairs, he thought, would pro- 
 perly come under a general average. Therefore, 
 deducting the benefit, if any, which resulted to the 
 ship from such repair, the rest, he thought, was to 
 be placed to the account of general average.' 
 
 But the repairs done to a vessel are always a ben- 
 efit to her, and I doubt whether, according to the 
 above distinction, any part of those repairs which in 
 themselves are of the nature of a particular average, - 
 can ever be construed into a general average. 
 
 In a case determined not long after the last men- 
 tioned, the court of King's Bench held, that the Power v. 
 wages and provisions of the captain and crew, while Mauirand 
 the ship remained in Coives, whither she was com-- ^^^^- H"* 
 pelled to go for the safety of the ship and cargo, in 
 order to repair a damage occasioned by tempest, 
 were not a subject of general average. They also 
 held that the expenses of the repairs themselves 
 were not general average, nor were the wages and 
 provisions of the crew during her detention in port, 
 to which she had returned and where she was kept 
 by adverse winds and tempests. Lord Ellenhorough 
 said, ' There was no sacrifice of any part by the 
 master, but only of his time and patience ; and the 
 damage incurred was by the waves and winds.' 
 
 It can by no means, however, be deduced from Doctrine that 
 this, that wages and provisions are excluded from I'owsprincipai. 
 general average also, when a vessel is obliged to 
 seek a port for the purpose only of repairing a dam- 
 age, which itself belongs to general average. Lord 
 EllenhorougW s words, on the contiary, appear to 
 support the opposite opinion. And the present Lord 
 Chief Justice of the King's Bench, speaking of the 
 wages and maintenance of the crew during a delay 
 in port for the purpose of repair, says, in p. 361 of
 
 124 Of Average. — Benecke. 
 
 his excellent work on the law of shipping : ' If the 
 damage to be repaired, be in itself an object of con- 
 tribution, it seems reasonable that all expenses ne- 
 cessary, although collateral, to the reparation, should 
 also be objects of contribution : the accessory should 
 follow the nature of its principal.' 
 
 It is now usual in this country, when a vessel puts 
 into a port on account of a damage belonging to par- 
 ticular average, which requires to be repaired before 
 she can safely proceed on her voyage, to allow in 
 general average the expense of entering the port and 
 of unloading ; to charge the owner of the goods or 
 their underwriters with the warehouse rent and ex- 
 penses attending the cargo, and to throw the expense 
 of reloading and departure upon the freight. That a 
 correct adjustment is not obtained by this distribu- 
 tion, will appear from what was stated, p. 118. 
 This method, however, appears to have been so far 
 sanctioned by custom, that an attempt to correct it 
 would meet with great opposition. It is to be re- 
 gretted that while such anomalies are suffered to 
 exist in practice, the assured is sometimes obliged 
 to claim what, properly speaking, is not due to him, 
 to make up for those cases in which the same prac- 
 tice withholds from him the restitution, to which ac- 
 cording to the nature of the subject, he would be 
 entitled. («) 
 In foreign The Hamburgh insurance laws ordain upon this 
 
 subject nothing further, than that ' extra pilotage 
 
 (o) In case of seeking a port to refit, and delaying for that 
 purpose merely, though the damage to be repaired may itself 
 be particular average, the wages and provisions during the 
 time of the delay, and the light money paid, and port charges 
 in the port of necessity, are in the United States considered 
 to be general average. 1 & 2 Phil. Ins. c- 15, §4. But the 
 deterioration of the goods by ordinary causes, or in conse- 
 quence of particular average, is not contributed for in gen- 
 eral average. 2 Phil. Ins. c. 25, § 4. — Ed. 
 
 countries.
 
 Of Average. - 125 
 
 and the expense incurred by a vessel which having 
 become leaky, or on account of any damage, is 
 obliged to enter a port,' are to be brought into gen- 
 eral average." The practice, however, fully agrees ° '^'^ l^'"^""*- 
 with the principles advanced by Riccard, and the ' 
 ship alone is charged with nothing except the actual 
 expense of repair. 
 
 The Prussian law expressly enacts, that^ 'if a p § § 1325 &, 
 vessel, having spruns; a leak or sustained any other l^"^' . 
 
 r^russiEin rule 
 
 damage, be forced to go into a port, all the charges 
 inwards and outwards, also the maintenance of the 
 crew in port, and their wages, by so much as their 
 amount is augmented in consequence of such pro- 
 longation of the voyage, belong to general average. 
 This applies also to the charges of unloading and 
 reloading, if the cargo must be discharged in port 
 for the purpose of repairing the vessel, or for other 
 efficient reasons. 
 
 By the Swedish Ordinance of insurance, it is even Swedish. 
 reckoned general average ' if a vessel become leaky 
 or strike upon the ground or upon cliffs, so as to 
 render it necessary to discharge the cargo, and by 
 careening, or otherwise, to repair that part which is 
 really damaged by the striking, and refit her for 
 again receiving her cargo, and continuing her voyage, 
 also the ship's furniture thereby spoiled.' And by 
 the Danish articles, ' the charge of heaving off a Danish. 
 vessel which is aground, incurred for the purpose of 
 saving the ship herself, and the lives and goods on 
 board, also the repairs and careening, if the dam- 
 age have taken place under water.'*" qswed.'what 
 
 Baldasseroni states,' ' that he never heard it dis- sMp^and^ he^ 
 puted, that the charges of entering the nearest port, loj^gf ^^J^^"^^' 
 and the repairs of damage incurred to prevent ship- ifaii. av. No. 
 wreck, belong to general average, but that a differ- t' ^^ j^ -pj^ 
 ence of opinion often prevails as to the cause and 2, § 30. 
 nature of the damage ; that when it arises from a Italian. 
 natural cause, it is usual to bring to the account of
 
 126 
 
 Of Average. — Beiiecke. 
 
 M 
 
 general average that part only, which has been added 
 to the damage for the joint benefit ; and to the ac- 
 count of particular average, that damage the cause 
 of which is special, (not having reference to the joint 
 beneht,) or the repairs by which without necessity 
 the ship's value has been improved ; but that all the 
 expense of making a port for the general benefit, 
 and all the consequences resulting from that step 
 have always been considered as subjects of a gen- 
 eral contribution. 
 French rule. The French Ordonnance cle la Marine, makes no 
 mention of the expense of putting into a port in dis- 
 j tress ; but the practice of the court of Admiralty at 
 / Marseilles, according to Emerigoii's testimony, near- 
 I ly corresponded with the principles laid down by 
 Riccard. ' A vessel,' he says, * which had consid- 
 erably suffered by storm, so as not to be able to pro- 
 ceed on her vovaire without a risk of beino; lost, 
 goes into a port for repairs. The 
 loading and reloading, the maintenance and 
 of the crew during the time which is spent there, are 
 \ all placed to general average. The charges of re- 
 ^pair, however, the cost of masts, sails, and other 
 , apparel purchased, are excluded from general aver- 
 age. But should it be necessary to pay exorbitantly 
 for these articles, owing to a scarcity of labourers or 
 high price of materials, that part which is paid above 
 the common value, would be brought into general 
 average. (1) He adds, that the practice of the oth- 
 er courts of Admiralty of the kingdom corresponded 
 i,p- with these principles.'" 
 
 The Code de commerce, however, has established 
 principles which difter materially from those just 
 mentioned. It enacts (Art. 400, ^ 6), that ' the 
 
 charges of un- 
 
 « Tom. 
 625. 
 
 (1) This is eviileiitly wrong: the expensiveness of the re- 
 pairs cannot change a damage, which is of the nature of a 
 particular average, to general average.
 
 Of Average. 127 
 
 wages and provisions to the seamen during the de- 
 tention incurred by a vessel on her passage being 
 stopped by order of a sovereign power, or during 
 the repair of damages, voluntarily sustained for the 
 common benefit, belong to general average, if the 
 vessel be freighted by the month.' — (§7), 'That 
 the charges of unloading a vessel for the purpose of 
 lightening and bringing her into a port or river, when 
 the vessel by storm or pursuit of an enemy is 
 forced to enter it, are general average.' — (Art. 403, 
 § 3), ' That the charges incident to going into a 
 port, occasioned either by the accidental loss of ca- 
 bles, anchors, sails, masts and cordage, or by the ne- 
 cessity of victualling, or of repairing a leak, are par- 
 ticular average.' — (§ 4), ' That the provisions and 
 ' wages of seamen during the detention of a vessel 
 on her passage by order of any sovereign power, 
 and during the repairs which may there be required, 
 are particular average, if the vessel be freighted for 
 the voyage." tArt. 4oo, 
 
 On examining these modern French laws, we find ^^ J^f ^^ 
 that on the one hand they abolish the perverse prac- 3 <t 4. 
 tice of bringing into general average the seamen's 
 wages paid during the repairs of a particular average 
 of the ship ; but that on the other hand they estab- 
 lish principles which are not consonant w ith the na- 
 ture of the subject. The charges of lightening a 
 vessel in order to bring her into a port when in dis- 
 tress, are reckoned general average only when the 
 vessel is forced by storm or pursuit of an enemy to 
 take refuge in a port ; and they are particular aver- 
 age when that measure was rendered necessary by 
 an accidental loss of sails, masts, &:c. — Yet, if a 
 vessel, by any accident, without the master's fault, 
 is placed in such a situation as not to be able, with- 
 out manifest danger, to continue her voyage ; if, for 
 instance, she have sprung a leak, have lost masts, 
 sails or anchors, and a resolution to put into a port
 
 128 Of Average. — Benecke. 
 
 be taken, not for escaping a storm or an enemy, but 
 to prevent foundering, or avoid being exposed to im- 
 minent danger ; in all such cases the port being en- 
 tered in consequence of a considerate determination 
 for the purpose of extricating the whole from real 
 danger, the charges thereby incurred ought, accord- 
 ing to first principles, to belong to general average. 
 As to the distinction made, with respect to sea- 
 men's wages and provisions, in cases of detention 
 and repairs of damages which belong to general 
 average, it will be necessary to notice, that the Or- 
 donnance de la Marine has already made the same 
 distinction in regard to ships detained by a sovereign 
 power. ' The maintenance and wages,' says the 
 7th article. Tit. des av., ' of the crew of a vessel 
 detained during the voyage by order of a sovereign 
 power, shall be considered as general average, if the 
 vessel be freighted by the month ; but if freighted 
 for the whole voyage, they are to be borne as par- 
 ticular average by the ship alone.' (1) The Code, 
 we see, has adopted this article, and extended it to 
 
 (1) The same direction is contained in the 18th and 19th 
 articles of tlie 20th chapter of the Orel, de Bilbao, except that 
 the latter with greater propriety than the Orel, de la Marine 
 says, ' that the maintenance and wages of the crew in cases of 
 detention, when the freight is agreed npon for the whole, are 
 not to be brought into general average, because they must be at 
 the charge of the owner or master of the vessel.'' The 20th arti- 
 Rule in Spain cle proves, that in Spain the wages and maintenance of sea- 
 as to wages men, in case of repairs or other detention in port, are not 
 and pro- general average. It enacts, that 'when a captain, by storm, 
 
 visinns 5 O ; • 1 1 1 • • 1 • 1 .• 
 
 tear or an enemy, or any other unavoidable incident, is oblig- 
 ed to go into a port, and to make some stay there for the pur- 
 pose of refitting, or for his security, and not being able to 
 procure the necessary money on credit or upon bottomry, he 
 should be obliged to sell merchandize at a loss, the damage, 
 on being proved to have been incurred really for the general 
 benefit, is to be placed to general average, after deducting that 
 which has been a^iplied to the purchase of provisions, pay- 
 ment of wages and other requisites for the vessel, all which 
 are to be held particular average at the charge of the captain.' 
 
 visions.
 
 Of Average. 129 
 
 the detention of" ships in a port into which thej took 
 refuge for the repair of damages belonging to gen- 
 eral average. 
 
 Pothier explains, in the following manner, the in- 
 tention of the Ordonnunce in distinguishing the 
 affreightment of a vessel concluded for the whole 
 voyage from that by the month :" ' The payment « Traite des 
 for the services afforded by the mariners in watching t^gs*^ ^0**^35 
 and preserving the freighter's goods being,' says he, tom'.ii, p.399. 
 ' included in the freight, the captain is obliged, if the 
 affreightment be for the voyage, to employ his sea- 
 men in those services during the whole duration of 
 the voyage, of which the detention forms a part, 
 because he receives freight for the whole voyage, 
 which includes the time of the detention of the ves- 
 sel. Since the captain, therefore, owes the services 
 of his mariners to the freighter during the detention 
 as well as during the remaining time of the voyage, 
 he must maintain and pay the mariners, at his ex- 
 pense, during the detention as well as during the 
 rest of the voyage, and the freighter is not obliged 
 to contribute towards it. But, if the affreightment 
 was by the month, the captain, not receiving any 
 freight during the detention, does not owe the ser- 
 vices of his mariners to the freighter during that 
 period; the latter must, therefore,. contribute to the 
 maintenance and wages of the mariners in considera- 
 tion of the services he receives from them.' 
 
 It may be added, that the captain, not only owes 
 the services of his mariners to the freighters for 
 watching their goods, but even leaving that service 
 out of the question, is obliged to retain them in order 
 to be ready for departure as soon as the obstacle is 
 removed. 
 
 These arguments apply with equal force to the 
 case of a vessel going into a j)ort to repair a particu- 
 lar damage, and serve as a further illustration of the 
 theorv given above. If the captain owes to the 
 17
 
 1 30 Of Average. — Benecke. 
 
 freighter the services of the mariners during a deten- 
 tion, he must doubtless owe the same services during 
 any accidental delay at an intermediate port; and 
 the more so, as the services rendered by the seamen 
 in repairing the vessel, are exclusively for the benefit 
 of the vessel, and not of the cargo. It is singular, 
 that Emerigon, in assenting to the above explanation 
 
 ' T.I, p. 539. of Pothier^s,'' should not apply it also to the deten- 
 tion in a port entered in distress, but should approve 
 of the then existing usage, which was contrary to 
 
 w Ibid, p. 625. that doctrine.''' 
 
 But the same arguments do not apply to a deten- 
 tion in port in consequence of a damage sustained, 
 which in itself constitutes a claim for general aver- 
 age. The service of the sailors in repairing such 
 damage, or their provisions and pay during a time in 
 which they perform no service, are consequences 
 immediately resulting from the measure adopted for 
 general preservation. It is known, while masts and 
 sails are cutting away, that the voyage cannot be 
 prosecuted unless these articles be replaced, and that 
 they cannot be replaced without the vessel entering 
 a port, and making there the necessary stay. The 
 time lost in refitting, and the expenses attending it, 
 are, therefore, a sacrifice for the common benefit, as 
 well as the masts and cables cut away, and must 
 equally be borne by all concerned. It would, for 
 these reasons, be desirable that the distinctions be- 
 tween vessels freighted for the voyage, and by the 
 month, were not extended to repairs of damages of 
 the nature of a general average. 
 
 Indeed, the case of repairs of damages, which are 
 of the nature of general average, is the only one in 
 which wages and provisions ought to be brouo;ht into 
 general average ; for, although it must be admitted, 
 that when the freight is stipulated by the month, the 
 freighter ought to contribute towards the charge of 
 maintaining the crew during a period in which he
 
 Of Average. 131 
 
 pays no freight, and in which, for that reason, the 
 service of the mariners cannot be included in the 
 freight ; yet, those charges are not, properly speak- 
 ing, of the nature of general average, being involun- 
 tarily incurred, and not in consequence of a measure 
 deliberately taken with a view of benefitine; the ship 
 and cargo. 
 
 It does not clearly appear, whether in the charges 
 incurred in a port resorted to in distress, which, with- 
 out reference to the mode of affreightment, are 
 declared a particular average, if the necessity of 
 making such port was caused by a particular aver- 
 age, (Art. 403, ^ 3,) seamen's wages and provisions 
 are meant to be included, but I presume that they , 
 
 are. 
 
 It is very essential to observe here, that the French 
 law, in the quoted passages, uses the term ' particu- 
 lar average,' not merely in contradistinction from 
 ' general average,' but as ' a charge upon the under- 
 writers."' Now, if the charges in port, such as har- ^ Emerigon, 
 hour duties, unloading and reloading, &c, occasioned ^" ^^^■ 
 by the repairs of a particular damage of the ship, are 
 not a general average, (which, indeed, as has been 
 shown, p. 192, they ought not to be,) there can be 
 no doubt that they must be at the charge of the re- 
 spective underwriters. But this is not so, (accord- 
 ing to general principles, when the insurance is only 
 upon the vessel and her outfit) with respect to sea- 
 men's wages and provisions, which, in France, in the 
 above-mentioned cases, are also made a charge upon 
 the underwriters of the vessel. In all other coun- 
 tries these charges are to be borne by the ship- 
 owner alone, unless it be otherwise stipulated in the 
 policy. (1) 
 
 (1) See the 2d Chap., and in the 9th Chap, the article — 
 ' The wages and maintenance of the crew during the repairs, 
 &c, are not particular average.'
 
 1 32 Of Average. — Bcnecke. 
 
 Exterior dam- Wlieii goods, wliicli icqiiired to be discharged in 
 l^ltZV\n P^''^ ^"^1' ^'^^' pnrj)o.sc ol" lepairing a damage, volun- 
 portl robbery, tarilj iindorgouo for the general benefit, are dam- 
 ^^' aged, stolen, bmnt, or in any other way destroyed, 
 
 the loss thus incurred, being the consequence of a 
 measure adopted for the general advantage, ought to 
 be general average The same damage, however, 
 happening to goods discharged in consequence of an 
 accid(MitaJ loss sustained by the vessel, must fall 
 upon the owner alone, bcin^- the result of a particu- 
 lar average. 13 ut ^vhero the expenses of unloading, 
 of crew's wages and })rovisions, &c, are reckoned 
 general average, even if the vessel have put into port 
 in consequence of a particular average, as we have 
 observed to be the practice every where except in 
 England, and France, the damage done to the goods 
 by exterior causes, by robbery, fire, &c, must also 
 belong to the same class ; and it is usual at Ham- 
 burgh, and other places, to include in general aver- 
 age also the premium of insurance against fire upon 
 goods unloaded in a foreign port. 
 
 Internal But an internal decay of the goods in port can in 
 
 decay of the ^q ^^g^ belouii to Fcncral avera-ze, beino' alone to be 
 
 goods in port. .,1 ? i /-iii-i 
 
 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 of other goods, and the occasional losses to 
 which such articles arc subject, from internal decay, 
 must be counterbalanced by the extraordinary profits 
 which they sometimes yield, owing to the very cir- 
 cumstance of their being perishable. A tacit agree- 
 ment cannot be supposed to subsist between the 
 shippers of goods not perishable, and those of 
 perishable goods, by which the latter could be justi- 
 fied in demanding from the former an indenmity for 
 the decay of their goods occasioned by any deten-
 
 Of Average. 133 
 
 tion whatever : for such ai) agreement would be de- 
 cidedly to the disadvantage of the former, because 
 they would run a j)art of the risk on the perishable 
 goods, without ever having any share in the profits. — 
 Owners and merchants sutler already too nnich by 
 the practice of not attending to the distinction which, 
 as has been observed before, should 1k' made between 
 goods liable and goods not liable to decay, in the 
 adjustment of such external damage as belongs to 
 general average, for instance, that occurring on a 
 jettis(m ; and of considering, and allowing for, that 
 part of the loss which ought in reality to he ascrib- 
 ed to the qualit_y of the goods, as if it were the con- 
 sequence of a measure takcni for the general benefit. 
 A'Vitli equal, nay perhaps greatei- p]opriety, might 
 other losses arising from the detention, such as a fall 
 in the market, interest of money, &c, be brought 
 into general average. 
 
 When a part of the cargo is shipped over into Loss of goods 
 lighters or the long-boat, in order to extricate the '" ^'s'^***^^- 
 ship and cargo from a perilous situation, as for in- 
 stance, to set a stranded vessel afloat, or to lighten 
 a leaky one, and bring her into the harbour : the 
 charges of such a measure, as well as tin? damage 
 sustained by the goods in consequence of it, un- 
 doubtedly belong to general average. Tt would be 
 extremely preposterous to exclude the loss of goods 
 in lighters, under a pretext that they were not in- 
 tentionally sacrificed. They were exposed inten- 
 tionally to an extraordinary danger for the benefit 
 of the whole, and this is a sufficient title to com- 
 pensation ; for to expose another's property, or to 
 destroy it, without compensation, would be equally 
 unjust. The Roman law directs in such cases, 
 that ' the goods put into the smaller vessel, if
 
 134 Of Average. — Benecke. 
 
 they miscarry, shall be considered as if cast over- 
 
 y L. 4 do leg. board. ''(f/) 
 
 Rhod. rpi^^ ^mwci rule will still apply, when a vessel, 
 
 without 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 shallow- 
 
 ^ Weijtsen. § ncss, or to auv similar cause/ For the measure is 
 
 ed.'i 205. occasioned by an unforeseen cnxumstance, 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 concerned ; and 
 it can make no difference whether such a circum- 
 stance takes place in an earlier part of the voyage, 
 or at its termination. Only in the latter case, the 
 common lighterage, which would at all events have 
 been paid, must be deducted. 
 
 Thus far, it seems, there can be no difference of 
 opinion ; but the case is otherwise, if, owing to the 
 nature of the river or port to which a vessel is 
 bound, it becomes always, or frequently, necessary 
 to unload part of her cargo to enable her to proceed. 
 — If the consignees themselves send to the road- 
 stead for their goods, and take them under their 
 own control, it is evident that there remains no 
 further connection between such goods and the ves- 
 sel, or the rest of the cargo. — If the goods are 
 forwarded indiscriminately in lighters, procured for 
 that purpose by the captain, or by an agent, (as is 
 usually done at the Helder with large vessels bound 
 to Amsterdam, at Cronstadt with vessels bound to St 
 
 (o) Magens meutioiis a case of goods put on board of an- 
 other ship on account of the original ship springing a leak, 
 where the ship on board of which the goods were put, was 
 captured ; and says the goods were contributed for in general 
 average. 1 Mag. 160, case ix. As to average for damage to 
 goods put on hoard of lighters for the general benefit. See 
 Lewis V. Williams, 1 Hall, 430, cited 2 Phil. Ins. c. 15, 
 § 2, No. 3.
 
 Of Average. 135 
 
 Petershurgh, &c), it is clear that, the extra lighterage 
 and expenses of unloading must be borne by all the 
 proprietors, according to the size and weight of the 
 several goods, but cannot be a general average, for 
 else a general average would necessarily take place 
 even after the most prosperous voyage. But whether 
 in the latter case the occasional damage to which 
 the goods in lighters are exposed, ought to be a 
 general or particular average, is not so easily de- 
 cided. On the one hand, it may be said, that the 
 measure being necessarily resorted to for the benefit 
 of all, the peril ought also to be in common, and 
 this is the view which all the legislators on the con- 
 tinent have taken, where losses of this description 
 are always considered as general average. On the 
 other hand, it may be urged, that the unloading is 
 not occasioned by an imminent danger, or even by 
 an unforeseen accident. And this consideration 
 seems to be prevalent at Lloyd's, where such losses 
 are generally settled upon the same footing as losses 
 sustained in a common disembarkation. 
 
 The Hamhurgh Ordinance of insurance 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 
 equal to jettison and must be paid for as general 
 average.''' And the French law enacts, that if goods ^ Tit. 22, art. 
 be lost which are loaded into barks for the purpose of 
 lightening a vessel on entering a river or a port, the 
 loss is to be distributed over the ship and the whole 
 cargo.'' The Russian, Prussian, Rotterdam, and *• Ord. de la 
 other Ordinances of insurance contain similar di- jet^'^art.'io;'^ 
 
 reCtionS." Code, art. 427. 
 
 The laws cited above, with the exception of the Rot inl. ord. 
 two last, mention only the loss of the goods and not § ^'2 — 95; 
 of the lighters. It is, however, understood that de Biib.' c.26, 
 these last are not allowed for in general average, ^^^- ^^
 
 I. 013. 
 
 136 Of Average. — Benecke. 
 
 when hired or freighted from a third person, be- 
 cause the freiii:ht or lighterage agreed upon includes 
 a coni{)ensatioH lor the risk to which tJiej are ex- 
 posed. But if the vessel's long-boat has been em- 
 ploved for that purpose and lost, its value ought to 
 <i Emcrigon, be restored in general average.'' The Prussian law 
 goes still farther upon the subje.'ct of hired craft, by 
 ordering that, if any part of the cargo of the craft 
 be cast overboard, the loss is to be apportioned in 
 general average among the craft and her remaining 
 cargo, and the contribution of the cargo of the craft 
 is to be borne by the principal vessel and all her re- 
 maining cargo. — A very proper regulation, ])rovided 
 a loss of the nature of general average which the 
 lighter may sustain, be nlso compensated for, and 
 that the cargo of the craft contribute also towards 
 the genera] average. 
 
 When the lighter into which a part of the cargo 
 is shipped for the general benefit, arrives safely, but 
 the principal vessel miscarries, no contribution takes 
 place. This direction is positively expressed in the 
 cited passages of the Roman, French, and Spanish 
 laws, and has very properly been adopted every- 
 where. For the lighter and her cargo, not owing 
 their preservatioji to the loss of the principal vessel, 
 cannot be liable to contribute towards such loss. In 
 the quoted passage of the Roman law, the ground of 
 this regulation is stated to be, that no contiibution 
 takes place ior goods cast overboard unless the ship 
 have been preserved. 
 
 But it is not conformable to the nature of the sub- 
 ject, to consider the unloading of goods into lighters 
 equal to jettison, for there is this material difference 
 between the two, that when goods are cast away, the 
 chance of their preservation is next to notiiing, but 
 when shipped into another vessel, they retain nearly 
 an equal chance with those left on board. And to 
 this difference it is owinii, that the rule of not
 
 Of Average. 137 
 
 granting a contribution unless the ship be saved, is 
 with full justice applied to the case of unloading 
 here considered, although in the case of jettison, as 
 shown above,'" it would be manifestly prejudicial to " Page loo. 
 the owners of the goods cast overboard, and, there- 
 fore, ought not to be applied to that case. Goods so 
 transhipped may possibly be entirely saved, while 
 the vessel and the goods left on board are wholly 
 lost. The proprietor of the goods transhipped has, 
 therefore, no right to complain that his goods may 
 totally perish, and yet those left in the vessel 
 and subsequently saved from shipwreck contribute 
 nothing towards his indemnification. If, in the lat- 
 ter case, he were allowed a claim upon the goods 
 saved from the principal vessel, such as T have shown 
 to be injustice due to the proprietor of goods thrown 
 overboard, his situation would be more advantageous 
 than that of the other proprietors and the ship- 
 owner : for his chance would in no case be worse, 
 but in some cases better than theirs. 
 
 What was before observed concerning damage and 
 internal decay of goods in port, applies also here. 
 If, by the transhipment the goods be damaged, 
 broken, torn, or partly lost, that damage belongs to 
 general average, but not the deterioration which, 
 owing to their perishable nature, they suffer by the 
 influence of heat or cold. This distinction, how- 
 ever, although founded in the nature of the subject, 
 is not always attended to in practice. 
 
 When the departure of a vessel is delayed by protraction of 
 storm or frost, such protraction caused by natural ^Y ^°y^?^^^y 
 
 ' •■ . . . -^ storm, frost. 
 
 events, and the charges arismg irom it, are not aver- 
 age. Wages and provisions to the crew are entirely 
 at the charge of the ship-owner, and must be paid 
 out of the freight ; in fixing which, the possibility of 
 such delays, especially on voyages at an advanced 
 season, should always be taken into consideration.^ beck' 152. 
 18
 
 1 38 Of Average. — Benecke. 
 
 In the same manner, the expenses of a vessel which, 
 not being able to enter a river on account of floating 
 ice, is forced by that circumstance, and not by da- 
 mage or imminent perils, to put into a port and 
 winter there, ought not to be brought into general 
 average, this being 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 ex- 
 penses of the voyage. Emerigon says, ' No notice 
 can be taken of the detentions arising from con- 
 trary winds or from calms. Were it othervvise, 
 s 1. 557. every voyage would occasion a thousand disputes.'' 
 When a vessel, however, is long detained by natural 
 obstacles of that kind in a port which she entered in 
 distress, it then appears to me 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 a particular 
 average. 
 
 Bynkershoek relates it to have been decided by 
 the Senate of Holland, that the expenses of delay 
 in a port which a vessel entered on account of storm 
 or vicinity of privateers, belongs to general average. 
 One of the senators, however, was of a contrary 
 
 h Quapst. jur. OpinioU.'' 
 priv. LIV, c. 
 25, sub finem. 
 
 Accidental Whcu a vcsscl strikcs by accident upon a shore, 
 
 a rock, or a shoal, the damage thereby occasioned 
 to the vessel or her cargo, is, like every other acci- 
 dental damage, particular average ; consequently the 
 cliai^ges expended in order to reJDair that damage are, 
 on first principles, also particular average. But a 
 stranded vessel in most instances is in danger of 
 being lost, unless speedy measures be taken for her 
 
 strandiniT.
 
 Of Average. 139 
 
 preservation. Those measures are general average, , 
 so far as thej serve to avert a danger threatening the \ 
 whole concern. The expenses and damages incur- 
 red for repairing or diminishing an already existing 
 loss, must, therefore, be distinguished from those by 
 which a future loss threatening the whole is intended 
 to be avoided. 
 
 The charges, therefore, of heaving a vessel off, \ . 
 without discharging her, are general average, since 
 th^y are incurred for the benefit of all concerned ; 
 and so is a jettison resorted to for lightening and 
 floating the vessel. Charges and damages occa- 
 sioned by unloading a stranded vessel, are general 
 average, if the discharge was for the purpose of get- 
 ting the vessel afloat, and that object be accom- 
 plished. But should the stranded vessel be lost, or 
 subsequently saved as a mere wreck, no contribution 
 can take place, because it is then a salvage loss. If i 
 the discharge be not for the express purpose of float- 
 ing the vessel and saving the whole : if, for in- 
 stance, the vessel by a high tide be carried far up 
 the shore, and so fixed there, that she must be dug 
 out (as happened some years since to a vessel coming 
 from London, which, near the port of Hamburgh 
 was thrown upon a piece of ground called the Grass- 
 brock), no contribution ought to take place. The 
 unloading in such cases is not effected with a view 
 to set the vessel afloat, but merely to obtain the 
 cargo ; the vessel, therefore, ought not to contribute 
 towards the unloading, although she be accidentally ' 
 
 benefited by it ; nor are the owners of the cargo to 
 contribute to the charges of digging the vessel out ; 
 these expenses being incurred merely for the benefit 
 of the vessel. In the case just mentioned, it was 
 of no consequence to the consignees whether the 
 vessel were floated or not ; they could not, there- 
 fore, according to the nature of the case, be obliged
 
 140 Of Average. — Benecke. 
 
 to bear the costs of a transaction, in which they 
 were not interested. But even had the stranding 
 not happened so near the port of destination, but at 
 a place where it might have been of great impor- 
 tance to the consignees that the vessel should be 
 saved, and should continue her voyage, still they ought 
 to have been exempt from contribution, the damage 
 being, by its nature, a particular one to the vessel, 
 which the master is obliged to repair at his expense 
 i P. 119. in order to continue the voyage.' Only if the 
 charges of floating the vessel exceeded the value 
 which is saved by it to the ship-owner, and if that 
 measure, after previous deliberation, were adopted, 
 either for the sake of avoiding the losses and ex- 
 penses to which stranded goods are frequently ex- 
 posed, or because no other vessels were to be had, 
 the surplus of the expense ought to be borne by the 
 cargo : but in no case could the charge of floating 
 , be the subject of a general average. 
 
 'f Nor do the expenses of unloading a stranded ves- 
 V sel belong to general average, if before the unload- 
 ing it was uncertain wdiether by that measure the 
 vessel might be set afloat or not, and it be after- 
 wards found that other means must be employed to 
 bring the empty vessel off. For it would then be 
 evident that the unloading was necessary for saving 
 the goods, independent of the benefit which the 
 vessel derived from it. Neither, therefore, can the 
 vessel contribute for an assistance thus accidentally 
 received, nor the cargo for the charges of heaving off 
 the vessel. 
 
 The damage sustained by the vessel in being hove 
 off, cannot justly be included in general average, un- 
 less it be intentionally done to the vessel, while all 
 or the greatest part of her cargo is on board, for the 
 purpose of getting her afloat. Every accidental 
 damage during the act of heaving, as well as any
 
 Of Average. 141 
 
 damage intentionally caused to the empty vessel, is, 
 agreeably to what was said before, particular aver- 
 age, {a) 
 
 [a) The charges for saving property are assessed upon the 
 several interests on the ground that they are incurred for the 
 benefit of the diflerent parties indiscriminately. Thus, in the 
 case of a vessel stranding, it often becomes necessary to dis- 
 charge a part, or the whole of the cargo, for the purpose of 
 lightening her to make her float. In such a case, if by merely 
 discharging the cargo, the vessel is got oft' and prosecutes the 
 voyage, all the expenses of lightening and getting her oft' and 
 storing and reloading the cargo are general average, since all 
 these expenses are incurred indiscriminately for the benefit 
 of ship, cargo, and freight. But the expense of repairing 
 the vessel, if she accidentally went ashore, are particular 
 average on the vessel, since they were not incurred for the 
 general benefit. Of the above case there is no dispute. But 
 suppose it is proposed to get oft" the vessel, but not to prose- 
 cute the voyage in the same vessel ; a case that sometimes 
 occurs. A vessel bound to Boston was driven ashore at Scitu- 
 ate, a distance of some twenty miles from Boston. Her hull 
 was not materially injured, but the sails were lost and the 
 masts cut away. The cargo was accordingly taken out for 
 the purpose of transporting it by other conveyance to Boston, 
 and measures were taken at the same time to get the vessel 
 off", to tow her to Boston for the purpose of repairing her 
 there. Until the cargo was wholly discharged, the labour and 
 expenditures were indiscriminately bestowed on the vessel 
 and cargo. These expenses, therefore, were made general 
 average. The case is mentioned not as presenting any re- 
 markable circumstances, but merely as an illustration of the 
 application of the principle of contribution in case of strand- 
 ing. In regard to this subject, an eminent despacheur of 
 Pliiladelphia states the rule to be, that ' so long as the cargo 
 remains on board' the expenses are general average. A gen- 
 tleman of Baltimore, profoundly skilled in insurance, states 
 the rule thus, ' If the stranded ship is got oft", without being a 
 constructive or technical total loss, we deem the expenses of 
 getting her oft", a general average: otherwise we hold to the 
 French maxim. En cas de sinistre majfAir sauvc qui jicut.^ But 
 the fact of a technical total loss, would not prevent an avei'age 
 of the salvage expenses on the property saved, nor was it pro- 
 bably intended, in laying down the above rule, to exclude such 
 a case. On the other hand, if the vessel is got oft", and prose- 
 cutes the voyage with the same cargo, then the expenses in- 
 discriminately bestowed on ship and cargo, and that of storing 
 and reloading the cargo, are general average. But the ex- j | /
 
 142 Of Average. — Benecke. 
 
 The rules laid down here are founded on those 
 general principles which distinguish between general 
 and particular average ; they, therefore, constitute 
 the law, except where particular regulations have 
 been framed deviating from those general princi- 
 ples. — The Hamburgh Ordinance of insurance de- 
 clares it general average, ' when a vessel strikes 
 upon the ground, and in order to get clear of the 
 same, requires extraneous assistance, or is forced to 
 j Tit. 21, unload.J But this article is subject to the general 
 art. u, No. 3. jy|gg given in the articles 7 and 1 1 , and therefore 
 ought not to be applied to those few cases where 
 the floating of the vessel is not for the general bene- 
 fit, but merely for that of the vessel. Yet in the 
 case before mentioned, the charges of getting the 
 vessel off the ground were brought into general 
 average, in compliance with the literal construction 
 of article 9. It is not, however, upon single adjust- 
 ments of this kind, unconfirmed by legal decision, 
 that a precedent can be founded, since they can nei- 
 ther be said to carry the authority of a judicial com- 
 ment, nor to be sufficient for establishing a custom. — 
 The French Ordonnance also says in general terms, 
 ' that the expenses of floating a stranded vessel are 
 k Tit. des general average."" The Code, on the contrary, ad- 
 avaries, art.c. j^^'|-g gg general average only ' the charges of floating 
 a vessel intentionally run aground to prevent a total 
 1 Art. 400; loss or a capture ;" so that in accidental strandings 
 "• ^ it must depend upon the particular circumstances of 
 
 the case, whether the charges of floating must be 
 brought to general or particular average. — The 
 Prussian law directs in too general a way, ' that 
 when a vessel by accident has struck upon the 
 ground or a cliff', and sustains damage in being hove 
 
 pense incurred after the cargo is discharged for the purpose 
 of getting off the vessel, and those of repairing and refitting 
 her, will, it appears to me, be particular average on the vessel, 
 in case of involuntary stranding. — Ed.
 
 Of Average. 143 
 
 off, compensation is to be made by general average. 
 In the same way are to be allowed the damages sus- 
 tained on such occasions by the cargo, the charges 
 of unloading and reloading, and those of floating the 
 vessel.'"' 14^"^^^^ 
 
 By the Spanish law, if any damage be done to a 
 stranded vessel, or her cargo, for the purpose of un- 
 loading her, such damage is to be held general aver- 
 age ; likewise the charges incurred in getting the 
 vessel afloat with her cargo, en' in preparations for 
 unloading (even though the lioods should be after- 
 wards unloaded through the hatches :) provided all 
 this shall tend to the saving and preservation of the 
 goods. Should the vessel, however, be wholly or 
 partially destroyed by waves or other causes, after 
 the goods had actually been unloaded through the 
 hatches, the loss is a particular average to the vessel. 
 Whatever is spoiled in lighters or in any other way 
 by the attempt to set afloat a vessel accidentally 
 stranded, is considered general average." » Orden de 
 
 The Swedish and Danish regulations relating to Sf 15'y 22!*' 
 this subject, have been quoted above, p. 125. 
 
 When a vessel is purposely run ashore and after- Voluntary 
 wards got off" with damage, the question, whether ^ ^^^ ^"^' 
 the repairs of such damage belong to general or par- 
 ticular average, depends entirely upon the circum- 
 stances of the case. If the situation of the vessel ! ^ 
 were such as to admit of no alternative, so that 
 without running her ashore she would have been 
 unavoidably lost, and that measure were resorted to 
 for the purpose of saving the lives or liberty of the 
 crew, no contribution can take place, because nothing 
 in fact was sacrificed. But if the vessel and cargo 
 were in a perilous but not a desperate situation, and 
 the measure of running her ashore deliberately 
 adopted as best calculated to save the ship and 
 cargo : in that case the damage sustained, according , / 
 to the fundamental rules, constitutes a claim for res-
 
 144 Of Average. — Benecke. 
 
 titution. — Suppose that a vessel having sprung a 
 \j dangerous leak, the master, m order to save a valua- 
 
 ble cargo, determines to run her ashore in a conve- 
 nient place, although he might possibly have reached 
 a harbour with a leaky vessel, at least if he had 
 chosen to throw overboard part of the cargo. Or 
 suppose him to adopt the same measure if, pursued by 
 an enemy, he considers this a more efiicacious method 
 of effecting her escape than lightening the vessel by 
 jettison. Here we find all the necessary requisites 
 . I for constituting a general contribution : imminent dan- 
 
 l \ ger, a voluntary determination, and a sacrifififi^^l) 
 \i and I can see no reason for distinguishing these cases 
 from that of goods being thrown overboard, or of a 
 mast being cut away in a storm. (2) 
 
 The case of a voluntary stranding being implied 
 , in the general rules, most of the foreign ordinances 
 
 omit to mention it expressly. The Prussian law is 
 in this respect more explicit than the others. ' If 
 the captain,' say the ^§ 1820 and 1821, ' in order 
 to preserve the cargo, run the vessel intentionally 
 
 (1) That it is not necessary to constitute a general contri- 
 bution, that a specific thing should be devoted to certain and 
 inevitable destruction, this has been shown above, p. 100. 
 / . (2) I cannot, for the above reasons subscribe to the opinion 
 / of Mr Stevens, (Essay on Average, 4th ed., p. 35,) that a 
 . voluntary stranding ought under no circumstances to give rise 
 I to general contribution, although I readily admit that more 
 ' mistakes would be occasioned by considering every case, 
 where the protest states the vessel to have been purposely run 
 ashore, as one of general average, than by entirely excluding 
 all cases of that nature. — The case which Mr Stevens puts 
 in his Appendix I, to show the absurdity of such proceeding, 
 proves by no means wdiat it is meant to prove. "Without going 
 into particulars, I only observe that this case is equally appli- 
 cable to jettison, for it may also occur that a great and valua- 
 ble part of a cargo is tlirown overboard, and the rest much 
 reduced in value by sea damage: so that his example, by alter- 
 ing the denominations, might just as well serve to show the 
 absurdity of the ])rinciple of making the jettison a subject of 
 general contribution !
 
 Of Average. 145 
 
 ashore, the damage thereby occasioned to the ship 
 and cargo, as well as all incidental charges, belong 
 to general average. But if it appear clearly from 
 circumstances, that the stranding was resorted to 
 merely for the purpose of saving the lives or liberty . 
 of the crew, the damage, even if the whole cargo be | 
 saved, is held to be particular average.' (a) 
 
 {a) The principles laid down by Mr Benecke on the subject I? 
 of voluntary stranding, are those generally adopted in the/// 
 United States. 1 Phil. Ins. 338. It was decided in one case 
 in Pennsylvania, Sims v. Gurney, 4 Bin. 513, that when a ship 
 will inevitably go ashore, and is directed to what is supposed 
 to be the least dangerous place, the damage is general aver- 
 age. But this case has been since overruled in the same 
 state. Walker v. United States Ins. Co., 11 Serg. «fe R. Gl, 
 cited 2 Phil. Ins. c. 15, § 2, n. 14. ' No doubt seems to be 
 entertained,' says Mr Justice Story in a note to Abbott on 
 Shipping, Ed. 1829, p. 349, n. 1, ' that if the ship, after such 
 voluntary stranding, is got oft" and performs her voyage, that 
 the damage is a general average. The point of difficulty has , 
 been, whether, if she is totally lost by such voluntary strand- 1 
 ing and the cargo is saved thereby, any contribution is due. 
 The subject is examined with great learning and ability by 
 Mr Justice Washington, in the opinion delivered in Caze v. 
 Reilly, 3 Wash. C. C. R. 298, [cited fully 1 Phil. Ins. 343, 344, 
 under the name of Caze v. Richards,] where the principal 
 authorities, foreign and domestic, are collected, and the con- 
 clusion of the court was, that contribution was due, although 
 the vessel was totally lost. This conclusion is, however, at 
 variance Avith that entertained by the court in Bradhurst v. 
 Col. Ins. Co., 9 Johns. 9, where the general doctrines of the 
 marine law on this subject are examined by chief justice 
 Kent in his usual comprehensive and exact manner. Upon 
 such a question, where such highly gifted minds have differed, i ^ 
 it is not too much to say, that there must be some room for j 
 doubt.' In Gray v. AValn, 2 Serg. &. R. 229, cited fully on 
 this point 1 Phil. Ins. 344, the Supreme Court of Pennsyl- 
 vania adhered to the doctrine of Mr Justice Washington. The 
 point of discussion in these cases, is whether if the ship be 
 wrecked and lost and the cargo saved, the case comes within 
 the doctrine, that to authorize a claim for contribution, the 
 impending peril must be avoided. As there seems to be \ < 
 good ground to fjuestion the doctrine itself, this is a reason, I j 
 if it be doubtful in any instance, whether a case comes within ' ? 
 
 _ 19
 
 146 Of Average. — Benecke. 
 
 The ancient laws, as well as the opinions of English 
 
 and foreign lawyers, are also in favour of this dis- 
 
 Consuiato tiuction." And so is, as far as I have been able to 
 
 del mare, c. . . /• n 
 
 1!)-^ c 193 ; learn, the practice oi all countries. 
 firnot^lio^'^ With respect to the injury done by intentional 
 Emerigon, I. Stranding to the cargo, it is necessary to ascertain 
 620; Abbot,^ that it had not been damaged by any previous acci- 
 3(50 ; Marshall, (Jei^t^ to prevent a particular damage being consid- 
 Seedso ste-' crcd a geiicral average. 
 
 vens' Essay, 
 
 82. ' The damage occasioned to a ship and her cargo 
 
 Running foul, fej being riin foul of accidentally, and without fault 
 
 on either side, ought to be particular average, and is 
 
 q Bufier'v^ ^^ ^^J ^'^^ ^^^^^ law,!" as well as by the law of Eng- 
 Fisher, Ab- land,'' wliich cousidcrs such an injury as a peril of 
 4°"'5. ' ^' the sea. («) But when in consequence of being run 
 foul of, cables or anv tackle are oblig-ed to be cut 
 away, or other expenses of the nature of a general 
 average incurred, these are certainly to be consid- 
 ered as general average, w hich is proved by a case 
 ' Piummer v. before quotcd." 
 
 above, p. 122. The Frciich law also cxprcssly pi'ovidcs that, 'If 
 the running foul of be merelv fortuitous, the damage 
 is to be borne entirely by the vessel which sustained 
 
 I5°407^''''°'"' ^^''^ ^y ^^^^ Spanish law, the damage happening 
 to a ship and cargo by the accidentally running foul 
 of another vessel, is likewise declared particular 
 average ; and each party, as in other casual inisfor- 
 tunes, is to bear his own loss : but if the damage 
 be occasioned by misconduct or negligence, the guilty 
 party must indemnify the other to the full extent of 
 
 t Ord. de his loSS.' 
 
 Bilb. cap. 20, 
 art. 34. 
 
 ' it, that the decision should be against applying; the doctrine, 
 /; so as to exclude the case from contribution. — Ed. 
 
 (o) The law in the United States i.-* the same on the sub- 
 ject of collision. See Story's Abbott, ed. of 1829, p. 353, n. 1, 
 and cases there cited. — Ed.
 
 Of Average. 147 
 
 Not all the foreign laws, however, agree in this 
 view of the subject. By the Hamburgh Ordinance," " Tit. 3, art. i. 
 ' the damage, in all cases of accidental collision, is 
 to be apportioned on both vessels, their freights and 
 cargoes, as in other general averages, each vessel 
 bearing one half; yet the owners and freighters of 
 the vessel which is preserved, or has sustained the 
 least damage, are not bound to a restitution exceed- 
 ing the value of their ship and cargo.' The Swed- 
 ish and Rotterdam Ordinances prescribe the same, 
 if the two vessels running foul of each other, were 
 both under sail. The Prussian law ordains the same, 
 with this difference, that it considers the damage in 
 such cases sustained by the goods as particular av- 
 erage.'' These three Ordinances also direct, that g f ^'I'^J^g.' 
 one half of the damage caused by a vessel sailing Rotterd. §255. 
 or driving against one that is moored, is to be paid iyii'Zic)33 ^ 
 for by the former, which moreover has to bear her 
 own loss alone. (The Prussian law, however, ex- 
 cepts the case of unavoidable accident.) But if the 
 master of the vessel at anchor might have averted 
 the danger, he bears his own loss : and by the Prus- 
 sian law he is even obliged to compensate for the 
 loss occasioned to the other vessel, if by gross error, 
 or with an ill design, he neglected the preventive 
 means which he ought to have taken. 
 
 By the French law, the damage is to be paid for 
 at the joint expense, and in equal proportions by the 
 vessel which occasioned and that which sustained it, 
 if the cause of running foul be doubtful."' This is, "^ Code de 
 however, to be understood as regarding only the ves- 
 sels. The goods are not to contribute towards the ' 
 damage, and the injury sustained by them is partic 
 ular average." larsect. i4 
 
 Emer. I. ch. 
 4. 
 
 It can make no difference whether jettison and Perils of war. 
 other voluntary sacrifices were resorted to for avoid- 
 ing either an imminent danger at sea, or a pursuing
 
 148 Of Average. — Benecke. 
 
 enemy ; in the one case as in the other, the damages 
 and costs sustained are general average. We shall, 
 therefore, have to investigate only such cases here, 
 as belong exclusively to perils of war, after briefly- 
 investigating how the damages and expenses pur- 
 posely occasioned are to be considered, when not the 
 whole, but either the ship alone, or the cargo alone, 
 or a part of the latter, are in danger of being cap- 
 tured by an enemy. Upon these points there have 
 been no positive and express enactments ; yet the 
 following remarks appear to me to be founded in the 
 nature of the subject : — 
 
 When the master of a neutral vessel in times of 
 war receives goods on board, which are liable to con- 
 fiscation, without the knowledge of the rest of the 
 shippers, and contrary to the laws of his country, he 
 becomes responsible for this act to the other ship- 
 pers, and cannot be entitled to demand from them a 
 contribution when, on account of that part of the 
 cargo, he runs his vessel ashore, or purposely dam- 
 ages her in any other way, in order to escape from 
 a cruiser. If the endangered goods be thrown over- 
 board, the free goods are not bound to contribute, 
 because the jettison was not made for their safety ; 
 but if the free goods be cast away, they must be 
 paid for in full, without their proprietor contributing 
 towards the loss, because the jettison took place only 
 on account of the goods liable to seizure. 
 
 A neutral vessel, entirely laden with goods subject 
 to be confiscated, can, under similar circumstances, 
 be bound to contribute only, if, in the case of cap- 
 ture, she would also have been liable to confiscation. 
 
 If the cargo or any part of it have become liable 
 to confiscation only during the voyage, the expenses 
 and damages incurred for the preservation of those 
 goods must be borne by their owner alone. But, as 
 the vessel and the free goods are, in every capture, 
 subject to some expenses and loss of time, — for
 
 Of Average. 149 
 
 which there can be no redress, since the circum- 
 stance, by which the vessel becomes liable to cap- 
 ture, is purely accidental, — it is evident that the 
 measures resorted to for preventing a detention, are 
 also, in some degree, for the benefit of the vessel 
 and of the free part of the cargo. Justice, there- 
 fore, requires, that each party should contribute in 
 proportion to what he would have lost by the acci- 
 dent : the goods liable to confiscation to their full 
 value, and the ship and free goods to the probable 
 extent of those expenses and damages which they 
 would have sustained by the detention. — These 
 principles may be easily applied to the opposite case, 
 when the vessel is become subject to seizure, and the 
 cargo is free. 
 
 The charges of a usual convoy cannot be consid- Convoy. 
 ered as general average, not being accidental, but 
 certain and determinable before hand. 
 
 When a vessel in time of war is chartered to sail Convoy taken 
 without convoy, the master cannot be justified in voya<fe^and 
 waiting at an intermediate port for convoy, on ac- deiay^in port 
 
 , r 7 • • 1 r 11 from fear of 
 
 count 01 any ordinary peril or war ; much less can enemies. 
 the expense, arising therefrom, be general average. 
 Bynkershoey relates some decisions of cases of this y Qua?st. jur. 
 nature, which deserve to be quoted here. During a ^5^' L'^'<^- 
 war between France and Holland, a vessel at Ain- 
 sterdam advertised for freight to several Italian ports. 
 She was described as carrying 40 guns, being prop- 
 erly manned and provided with a letter of marque ; 
 and there was a promise that she should sail without 
 waiting for convoy. Having procured her cargo, 
 she sailed under convoy of a man of war to Ports- 
 mouth, and although other vessels proceeded from 
 thence without protection, she waited a full twelve- 
 month for a second convoy, under which she sailed 
 to Cadiz. Here again she waited a twelvemonth,
 
 150 Of Average. — Benecke. 
 
 in order to proceed with a man of war to the Med- 
 iterranean. Having completed her voyage, the cap- 
 tain demanded an averaoe contribution for the char- 
 ges of the delay, which, on account of the wages 
 and provisions to the crew during two years, had 
 grown to a considerable amount. His demand was 
 granted by the marine court ; the sentence was re- 
 versed by the court of appeal, and finally confirmed 
 by the supreme court, against the opinion of the au- 
 thor, who was a member of the latter. His chief 
 arguments against the contribution are, that a cap- 
 tain can demand restitution only for preventing im- 
 minent and actual danger ; but that a common peril 
 of war cannot be considered as such, any more than 
 the danger of a winter voyage : and yet no captain 
 passing the winter in port, for the sake of more se- 
 curely sailing in spring, receives a compensation ; 
 that the vessel in question was sufficiently strong to 
 resist one or two privateers ; that, moreover, she 
 had engaged to go without convoy, in consequence 
 of which, the owners of the goods were obliged to 
 pay higher premiums of insurance, and that owing 
 to this engagement the captain ought even to indem- 
 nify the owners for the delay, and for the deteriora- 
 tion of their merchandize. 
 
 A case resembling the former, except that the ves- 
 sel had not been expressly advertised to go without 
 convoy, was decided a few 3 ears afterwards by the 
 same court, in an opposite manner. Two ships were 
 chartered from Surinam to Amsterdam, during a war 
 between France and Holland. Having reached Eng- 
 land in company with three other merchantmen, they 
 put into Phjmouth, although not pursued by an en- 
 emy, because they heard that those seas were not 
 safe, and waited there for convoy. When they had 
 reached Amsterdam under its protection, they de- 
 manded a general contribution for the expense of 
 their delay, during six months. The marine court
 
 Of Average. 151 
 
 decided again in favour of both captains, but the 
 sentence was reversed by the two higher courts. 
 
 But although a captain be not authorized to incur 
 considerable expense, in order to wait for convoy, 
 yet I am of opinion that he might avail himself, at 
 the expense of all parties, of an opportunity pre- 
 senting itself for sailing under protection ,* and more 
 especially so, if he should be apprised of the war- 
 risk only during the voyage. For it is proper to 
 avert even a distant danger, when it can be done 
 without too great a sacrifice. Reasonable under- 
 writers in such cases will not refuse the repayment 
 of expenses incurred evidently for their benefit. 
 
 When, by an imminent danger, the protection of a 
 man of war, or a delay in port, is rendered neces- 
 sary, it can admit of no doubt, that the charges 
 thereby occasioned are general average. Of this 
 the above cited author gives the following instance : 
 — A vessel was chartered from Avnsterdam to Cadiz, 
 under an agreement, that she was to sail with a man 
 of war to Lisbon or Oporto. In tlie latitude of Lis- 
 bon the convoy was attacked by several hostile ships ; 
 some of the vessels were taken, others, at a signal 
 given by the convoy ship, escaped into Lisbon. 
 Among these was the above vessel, which was 
 obliged to remain there six months before she could 
 safely proceed on her voyage. The expenses oc- 
 casioned by the delay were, by all the three courts, 
 declared to be general average : this being not an 
 accidental, but a voluntary detention, occasioned by 
 imminent danger. 
 
 To prove that the expenses of a necessary convoy 
 belong to general average, Emerigon relates the fol- 
 lowing case :'■ — Some vessels bound to Acre^ Avhich ^ ^■^^<o. 
 had put into Cyprus, were prevented from contin- 
 uing their voyage by two English privateers at an- 
 chor in a port of the same island, and by moreover 
 learning that two other English privateers Mere
 
 162 Of Average. — Benecke. 
 
 cruising in Acre roads. They placed themselves, 
 therefore, under convoy of a Turkish man of war, 
 and the expenses thereby incurred were declared 
 general average by the French consul at K^aib. — 
 Another case is mentioned by the same author, in 
 which the expense of detention, experienced by a 
 vessel in a port which she made on being exposed 
 
 a I. 556. to enemies, was declared general average.'" — In 
 Leghorn also, the expenses of a necessary convoy, 
 and of the unavoidable delay in port until it could 
 be obtained, were made a subject of general con- 
 
 ^.^'^j'^ T..iv, tribution.'' — The Prussian law too generally says, 
 that ' If a vessel must wait for convoy, or remain for 
 some time in a neutral port, owing to a risk appre- 
 hended from an enemy, the wages and maintenance 
 of her crew during that period, in proportion as their 
 amount is augmented by such prolongation of the 
 voyage, are general average. No exception takes 
 place, if, at the time of departure, the risk should 
 have been known, and no agreement made as to con- 
 
 : § § 1^=27 & voy.-^ (a) 
 
 1838. J \ / 
 
 „ . When a captain, to avoid capture or plunder, com- 
 
 privateers and pouuds With privatccrs or puatcs, by givmg them 
 pirates. moncy or a part of the cargo, or promising to pay a 
 
 sum for ransom, this loss, according to the nature of 
 de leg.' Rho'd.; the subjcct, and to most laws, belongs to general 
 ^^.'^r'^'^^."!."' average.'' The Hamburgh and Swedish Ordinances 
 
 art. 0, 1 it. des o i i • i i i • 
 
 avar. ; Code, enumerate under this head also, the goods which are 
 
 art. 400. N. ^ 
 
 1 ; Hamb. Ord. 
 
 N. 4~ Pruss. ' i^) ^^^" Abbott, late Lord Tenterden, considers this a prop- 
 
 § 1829 — 1834. er case for general average. Abb. on Ship. Story's ed. of 
 
 Swed. §5; 1S29, p. 253. The aronnd of its bein<r general averagre, is, 
 
 & v^ Tl N *^^^* ^^'^ delay was not merely to avoid the perils of war 
 
 2; & others- generally, but 'an extraordinary and impending peril.' This 
 
 Weijtsen, § subject of hiring or waiting for convoy has not come under 
 
 28; Ord. de adjudication in England or the Ignited States, in respect to 
 
 . \^. ^u, ^ claim for a general average contribution. — Ed. 
 
 art y; ~ °
 
 Of Average. , 163 
 
 taken out of the ship by privateers not belonging to 
 the enemifs party, under a promise of payment which 
 
 is not fulfilled.'' ^ Hamb. 1. c. 
 
 If a hostage be given to secure the ransom, the lc.Vio.^*' 
 remuneration due to him belongs also to general av- 
 erage. Should the captain find means to persuade 
 the privateer, that the goods on board are not all 
 enemy's property, the goods belonging to an enemy, 
 which are saved by this contrivance, must bear the 
 loss of the remainder.^ But if really a part only of fEmer. 1.630, 
 the goods be enemy's property, and the privateer, thors cited by 
 knowing them as such, should receive a payment or ^""i- 
 promise of payment for the same, it is obvious, that 
 the free part of the cargo cannot be liable to con- 
 tribute towards that loss. But if the privateer should 
 not distinguish the enemy's property as such, and 
 should make a general composition with the master, 
 I am of opinion that the apportionment of the dam- 
 age ought to be made according to the rule given 
 above. (Page 148.) 
 
 Ransom, however, in the case of capture by an 
 enemy, (except in insurances upon foreign property) 
 can hardly become the subject of general average in 
 this country. For, by the act 22 Geo. Ill, c. 25, 
 the ransom of any ship, or merchandize on board 
 the same, belonging to any subject of this country, 
 and taken by ' the subjects of any state at war with 
 His Majesty, or by any person committing hostilities 
 against His Majesty's subjects,' is absolutely pro- 
 hibited ; and by the statute 43 Geo. Ill, c. 72, s. 
 16 & 17, such ransom is prohibited, unless in the 
 case of extreme necessity, to be allowed by the 
 court of admiralty." g Abbott p. 3, 
 
 ^ ch. 8, n. 4. 
 
 When a privateer or pirate, without having com- Seizure; 
 pound(;d with the master, seizes a part of the goods, P^""*''^""ff- 
 the loss undoubtedly is particular average, not being 
 20
 
 154 Of Average. — Benecke. 
 
 h L. 2 do leg. intentionally sustained for the benefit of the whole, 
 
 Rhod. ; Code, i • i ^ • . • i 
 
 art. 403, No. and seizLirc by an enemy being particular average. 
 
 1 ; &. others ; 
 
 Weijtscn. § ^^ , . , r. , • ^ c 
 
 27 ; Ord. de balvage paid to men oi war and to privateers, tor 
 frt^33'^^' recapture from the enemy, and charges incurred 
 Salvage for upou such occasious, are also of the nature of gen- 
 
 recanture. i ; 
 
 i As to the eral average.' 
 
 rate of sal- 
 
 bott,'p. Ill, Anchors, cables, and otlrer articles sa(5rificed for 
 
 cii. 10. ^j-^ p;encral benefit, in order to escape from enemies 
 
 Uamages sus- o ' i i i 
 
 taincd in or- or piratcs, bclong to general average : also anchors 
 ftom^ar''''^'^ and cables cut away to ])revent being separated from 
 enemy. the coiivoy (providcd this was not owing to neglect) 
 
 are considered as such in most countries, although 
 this be a sacrifice not made to avoid a present, but 
 ^ J^mer I. ^ ^ futurc danger.'' With respect to the latter case 
 Weijtsen,' § the practicc in this country appears to be different,' 
 iv' ;^g.^'^^^" probably because such sacrifice is considered to be a 
 Sw'ed. Ord. duty iiicuiiibent upon the master. But can the mas- 
 fharo-'erbif as tcr bc obliged to destroy part of his apparel for the 
 
 general aver- benefit of the wholc ? 
 age,' § 5. 
 1 Stevens' 
 
 ^^'if's^'^!'' It is a question not easily to be decided, whether 
 c. 4, §v,p. G6. the damage done to a vessel by the defending her 
 Damage sus- affauist privatccrs or pirates belongs to particular or 
 
 tained by de- ^ ^ . ^ ,^ i /• -^ • • 
 
 fending a ship to general average. -tor the lormer opinion in 
 against an \\\\\q\\ Cleirac, Tar^d, Emerioon, and others a2:ree," 
 
 enemy, and _, . ' O ' i i rrn 
 
 healing of the foUowing reason may be advanced : The meet- 
 wounded ^ ^^^^^l^ privatecis is not less accidental than strand- 
 
 m Eixier. I. ^ ^ 
 
 627. ing or any similar misfortune. In these, however, 
 
 only that part of the loss is general average which 
 is purposely sustained for preventing the injury, not 
 that which is effected by external causes, without 
 the co-operation of the ship's company. Only that 
 part of the damage, therefore, which is done to the 
 vessel by her own crew as a measure of defence, is 
 » general average, not that which the ship or the 
 
 goods receive from the enemy's shot. — But the
 
 Of Average, 155 
 
 contrary opinion, maintained by Vali7i," can be sup- " Tit. des av. 
 ported by the following, as I conceive, solid argu- ^""^ ^" 
 ments : A ship is not lost, but merely in danger of 
 being lost, by coming in contact with an enemy. 
 Even if the captain surrendered without defending 
 himself, there remains a chance of recapture, so that 
 it cannot be maintained that there could be no sacri- 
 fice because all was already irretrievably lost. Now 
 if cables be cut, goods cast overboard, or the vessel 
 run ashore, in order to escape from the enemy, the 
 damage is universally admitted to be general aver- 
 age. But as these measures are intended for the 
 preservation of the whole, so is the defence of the 
 vessel ; and it seems unjust that the loss arising 
 from it should fall only upon one party, particularly 
 upon the ship-owner, while the benefit accrues to 
 the whole. It is certain that the damage occasioned 
 by the enemy's shot, is one proceeding from ex- 
 ternal causes, and against the will of the captain ; 
 but it is nevertheless the consequence of a determina- 
 tion to resist, and may, therefore, be looked upon as 
 a damage voluntarily sustained. 
 
 In this country, however, neither the repairs of 
 the damages occasioned by a successful defence 
 against privateers, nor the ammunition expended, 
 nor the cure of the wounded, are considered as gen- 
 eral average. So the court of Common Pleas de- Taylor v. 
 cided in a late case after a very elaborate discussion Taunt cos. 
 of the subject. 
 
 By the stat. 11 & 12 Will. Ill, c. 7, the judge of 
 the Admiralty court is authorized, on petition, to 
 direct the registrar and merchants, to levy a certain 
 sum, not exceeding two per cent of the value of the 
 ship, freight, and the first cost of the cargo, and dis- 
 tribute the same amongst the wounded seamen, and 
 the widows of the slain, &c. 
 
 The Hamburgh Ordinance reckons as general 
 average all the damage done to the vessel, her ap-
 
 166 Of Average. — Benecke. 
 
 parel, and the cargo, by good defence against ene- 
 mies, privateers, or pirates. The Prussian and 
 Swedish laws concur in this regulation, excepting 
 that the latter do not mention the damage of the 
 o Hamb. Ord. goods." — The casc would be quite different, how- 
 5;'prl §Y835; cver, if a vcssel should be fired at by accident, or 
 Swed. ' ship for havino; refused to salute, or in any case not im- 
 
 and apparel, i • i r i /' 
 
 § t;. plyiiife self-defence. 
 
 Ammunition expended in defence, is not reckoned 
 
 general average by the Hamburgh Ordinance ; by 
 
 the Prussian, on the contrary, it is specially in- 
 
 p Hamb. Ord. cludcd.^ The Hamburgh, Swedish, Prussian, Dan- 
 
 Pruss. § 1835. i^h and Spanish laws, admit to general average the 
 
 charges of healing and attending the wounded in an 
 
 engagement, also allowances to widows and orphans 
 
 q Hamb. 1. c. of the killed. '^ Some include also the charges of 
 
 Pruss. §§ ' burying the dead, and likewise the liberation of sea- 
 
 cS?'d^'^Bil) ^^^" taken prisoners in the course of their exertions 
 
 c. 20, art. 17. for the general benefit.' The cure of illness and 
 
 «• Baidass.iv, wouuds of any other kind belongs not to general 
 
 ^" ■ average, but is, according to several marine laws, 
 
 See Supra, p. to be paid for by the master, if sustained acci- 
 
 86, and note, dentally. 
 
 tio^""^'^^ By several insurance laws, the remunerations pro- 
 
 mised by the master to seamen by way of encourage- 
 ment and incitement during an engagement, or on 
 other perilous occasions, are also a subject of gen- 
 eral contribution. In this country, however, no ac- 
 tion for a claim of this nature can be maintained. 
 A promise made by a master lohen a ship was in 
 distress, to pay an extra sum to a mariner as an in- 
 ducement to extraordinary exertion on his part, was 
 deemed to be void, because every seaman is bound 
 to exert himself to the utmost in the service of the 
 
 • ■Abbott, P. shin ' ta^ 
 
 IV,ch,i,§8 ^"^P- V^^>' 
 
 ' (a) The law is the same in the United States. 3 Kent's 
 
 Com. 185. — Ed.
 
 Of Average. 157 
 
 Arrests or detention of princes (1) are casupil evils, Detention 
 and the consequences resulting from them, such as capture!^' 
 protraction of the voyage, loss of the market, decay 
 of goods, wear and tear of the vessel, extra provi- 
 sions and wages to seamen, are, by the nature of the 
 subject particular average ; whether the detention 
 be at the port of departure, during the voyage, or at 
 the port of destination. For none of the particulars 
 requisite to constitute a general average exist in 
 those cases. The detention, even if the benefit of 
 ship and cargo, or of a part of them, be intended by 
 it, as may be the case in embargoes imposed under 
 the expectation of an approaching war, is neverthe- 
 less, not the free determination of the master and 
 crew : neither can it be considered as a measure 
 adopted for the benefit of the whole that the crew 
 are retained in service : because the captain owes 
 the services of the seamen to the shippers during 
 the whole of the voyage, however protracted by ac- 
 cidental causes. — An embargo or any similar transi- 
 tory obstacle produces no alteration in the contract 
 of affreightment : any prejudice, therefore, which 
 the captain may sustain by the detention, can never 
 entitle him to discontinue the voyage without the 
 consent of the shippers. Thus by waiting, with his 
 cargo on board, for the termination of the obstacle, 
 he makes no sacrifice for the benefit of the whole, 
 but merely fulfils his original engagement. 
 
 (1) If the sovereign of the country to which a ship belongs, 
 or any other sovereign, not at war with the former, from mo- 
 tives of necessity, arrest the ship either in port or at sea, 
 with a view to restore the ship and goods, or to pay the vahie 
 to the owner ; this is an arrest or detention of princes. The 
 arresting or taking ships for the purpose of prize, is capture. 
 If a neutral ship be arrested at sea and carried into a port, 
 under pretence that she belongs to an enemy, or that she is 
 laden with enemy's property, this must be considered as a 
 capture, because it is done as an act of hostility. — Yet, in a 
 similar case, the assured was held entitled to recover as for 
 a wrongful detention. (See Marshall, 3d Ed. II, 509.)
 
 158 Of Average. — Benecke. 
 
 t Disc. 4G, Casaregis is, therefore, ri«lit, when he says,' that 
 
 Difc^'i2r"'' the expenses hicurred during a detention by princes 
 No. 8. are particular (not general) average. — Baldasseroni 
 
 also quotes a decision by the marine court of Pisa, 
 in 1778, by which the expenses of a Dutch vessel, 
 laden witii corn, which was detained at Mahon, were 
 « T. iv, p. found not to be general average." Verwer likewise 
 ^\' , , says,' that the provisions and wages of the crew be- 
 see Rechten loug uot to gcucral avcragc, ir the vessel have been 
 Amst. ]7itj, p. j^i-p vented from sailing by command of superiors. 
 ' Here,' he continues, ' the first requisite for a gen- 
 eral average is wanting. The seamen are not de- 
 tained on board for the sake of keeping possession 
 of the cargo. And upon what ground should pro- 
 > - visions and wages belong to general average, any 
 more than the loss which the cargo sustains through 
 the same accident ?'' 
 Wages and But thc provisious and wages during a detention, 
 
 casJofcaptmo the expcuscs of which belong not to general average, 
 or detention, canuot, accordiug to the nature of the subject, be 
 considered a particular average at the charge of the 
 underwriters upon the vessel, but must be paid out 
 of the freight. For the seamen are not kept for the 
 sake of the vessel, but for earning the freight. Yet 
 several insurance ordinances direct those expenses 
 ^ Hamb. Tit. to be a charge upon the underwriters.'" 
 Swed. Pruss. Magens relates,'' that in the war between England 
 § 2232.— j^j^(j Spain, a merchant fleet was, by command of the 
 
 And soG DP- ■*■ -IT 
 
 low, Chap. Spanish Court, detained more than a twelvemonth at 
 On Adjust- ^j Havana, to wait the arrival of a sufficient con- 
 
 ment ol 1 art. ' i • ' r i 
 
 Av. voy, but that the owners made no clami tor the very 
 
 » Page C8. heavy charge of maintaining the crew, either upon 
 the consignees of the cargoes, or upon the under- 
 writers, because they viewed the detention as a 
 casual incident, entailing a loss only upon their own 
 adventure. Magens himself, however, appears to be 
 of opinion, that a distinction ought to be made, when 
 the arrest can be viewed as a hostile measure. —
 
 Of Average, 159 
 
 But for this distinction there is no ground when the 
 captain has been forced to keep the cargo on board, 
 and consequently no sacrifice has been made on his 
 part. ' Upon the detention of foreign ships in 
 England,' Magens continues, ' during the last war, 
 when it was everywhere justly allowed, that demur- 
 rage should be satisfied by way of general average, 
 yet this was confined to provisions and wages, and 
 no allowance was made for wear and tear of the ships 
 during the detention, &c.' (1) It would, indeed, 
 have been very absurd to have considered this de- 
 murrage in the same light as that which takes place 
 by the freighter's fault. 
 
 In England, it has never been legally decided, that 
 the crew's provisions and wages of detained ships 
 must be paid for by general average. In the case of 
 Da Costa v. Neivnham, Mr Justice BuUer, speaking 
 of the expense of wages and provisions, during the 
 detention of a ship by embargo, says, ' the court has 
 said that these charges shall fall upon the owners 
 only, and the freight must bear them-'^ The mean- y Abbott, p. 
 ing probably is, that those expenses are to be paid ^^^' ^^^- ^'"' 
 out of the freight. 
 
 In France a distinction is made between arrest of 
 princes that takes place before the departure of the 
 vessel, and that which occurs on the voyage. In the 
 former case, the master must await the end of the 
 obstacle without any claim of indemnity from the 
 freighter.^ No wao;es are due to the seamen, be- ^ Ord. Tit. 
 cause they arc paid only during the time of the ves- parties.'^arrs ; 
 scl's fitting out ; whereas, if the arrest happen dur- Code, art. 
 ing the voyage, they receive half wages during the "' 
 detention, if engaged by the month.'' Again, if the » Ord. Tit. 
 detention occur during the voyage, it is to be distin- .r,f codr'art!' 
 
 (1) Magens probably speaks here of vessels arrested, or 
 carried into port for the purpose of investigating whether they 
 were enemy's property.
 
 160 Of Average. — ^Benecke. 
 
 giiished whether the vessel was hired by the month, 
 or for the whole voyage;. In the latter (the more 
 common) case, provisions and wages to the seamen 
 are particular, in the former general average. — I 
 have, upon another occasion, where these laws 
 required to be mentioned, communicated Pothier^s 
 b Page 129. explanation of this distinction ;'' which Vcdin, how- 
 ever, deems totally wrong. He contends that, ac- 
 cording to their nature, provisions and wages of the 
 crew ought in both cases to be at the charge of the 
 owner ; but asserts that the law, from motives of 
 humanity, lest the loss, where the detention is of 
 long duration, should press too hard on the owner, 
 admits those charges in general average : and con- 
 tends that the same principles of equity are equally 
 applicable to both kinds of afireightment. — But the 
 nature of the subject likewise requires that the 
 freight agreed upon by the month, should be paid 
 even during the detention ; and, as the law in this 
 case deviates from the natural rule in favour of the 
 freighter, it is but just that it should impose upon 
 him a new obligation of indemnifying the o\\ner. If 
 the freight, however, be stipulated for the voyage, 
 the owner is not wronged if he receive no more 
 than the freight agreed upon, and he is not entitled 
 to remuneration from the freighter. The distinction 
 made by the law is, therefore, well founded. (1) 
 
 (1) Tlie IGtli article of the Ord. Tit. dii fret, is as follows: 
 ' If a ship, ill the course of her voyage, be arrested by order 
 of any sovereign power, no freight is to be j)aid for the time 
 of her detention, if the vessel be chartered by the month, or 
 increase of freight, if engaged for the voyage ; but the pro- 
 visions and tcages to the creio arc reputed average.'' The 7th 
 article, Tit. des avaries, however, says, ' The provisions and 
 wages to the crew of a vessel detained during the voyage by 
 a sovereign power, are to be general average, if the vessel be 
 chartered by the month ; but if for the whole voyage, they 
 are to be borne by the vessel alone as particular average.' 
 Valin declares these two articles to be contradictory, and 
 rejects the latter entirely, thinking the former more equitable.
 
 Of Average. 161 
 
 In Hamburgh it is customary to include provisions 
 and wages in the general average, in all cases of de- 
 tention of ship and cargo, (a) 
 
 When neutral vessels, in time of war, are arrested Arrest tor ex- 
 and carried into a port for examination, the charges '^"^'"'^tion. 
 of reclaiming them are undoubtedly general average, 
 if incurred for the liberation both of the ship and 
 cargo. 
 
 But if either the ship alone, or the cargo, or a part 
 
 But the latter, as has been shown, is certainly not without 
 foundation, and being very positive, cannot be rejected. — It 
 is very remarkable, however, that these articles, seemingly so 
 contradictory, and which have given rise to so much discus- 
 sion, have been admitted without alteration or exijlanation 
 into the Code de Commerce, art. 300, 400, and 403. 
 
 As to the maintenance and wages of seamen during a de- 
 tention being declared by the French law a particular aver- 
 age on the ship, if she be hired for the voyage, I refer the 
 reader to p. 130. 
 
 (a) ' It is a point upon which the American decisions are Wages and 
 
 divided, whether the wages and provisions for the crew during provisions 
 
 a detention by embargo are, or are not, general averafje. In ^^^^^J^ ^'^'^"" 
 
 . ^ ~ ~ tion by eni- 
 
 McBride v. Marine Ins. Co., 7 Johns. R. 431, it was held that baro-o. 
 
 they were not. And that was also the opinion of the court in 
 the case of Spafford v. Dodge, 14 Mass. R. 66, who said there 
 was no distinction between the case of an embargo and a hos- 
 tile seizure. On the other hand, the ultimate decision of the 
 case of Jones v. A. Ins. Co. of N. America, 4 Dall. 24, and S. 
 C. on appeal 2 Binn. 547, is that such expenses are general 
 average.' Story's Abbott, Ed. 1829, p. 351, n. 1. In Robert- 
 son V. Ewer, 1 T. R. 127; Martin v. Salem Ins. Co., 2 Mass. 
 R. 429, cited 1 Phil. 352, the decision was against allowing 
 wages and provisions in general average in such case. 
 
 On the subject of the expense of wages and provisions in case Wages and 
 of detention by hostile capture, they have been held in New provisions in 
 York to be general average. Leavenworth v. Delafield, 1 ':^^^ °^ '^^P' 
 Caines' R. .573 ; Penny v. New Y. Ins. Co., 3 Caines, 155. In 
 Massachusetts a contrary decision has been given. Spafford v. 
 Dodge, 14 Mass. R. 66. But if any of the expenses are incur- 
 red on account of the cargo separately, tliey are not general 
 average ; Watson v. Mar. Ins. Co., 7 Johns. R. .57. All these 
 cases are cited more fully, 1 Phil. Ins. 350, 351. See also 
 Story's Abbott, Ed. of 1829, p. 351, n. 1. — Ed. 
 
 21
 
 1 62 Of Average. — Benecke. 
 
 of the latter, be the cause of the detention, the 
 charges of reclaiming must be borne by that party 
 on whose account they were occasioned. It would 
 be preposterous to make a free cargo contribute to 
 the expenses of liberating the ship, merely because 
 the voyage is furthered by it ; for, with equal justice, 
 might every particular damage to the vessel be made 
 the subject of a general average. 
 
 It is equally preposterous, though usual, to charge 
 the cargo alone with the expense of reclaiming the 
 W'hole, merely because a decision to this effect is 
 pronounced by a foreign court of judicature. Such 
 a decision ought not to be attended to, if it can be 
 avoided. — The release of the cargo implies, that no 
 wrong had been committed by the neutral owner. 
 
 In Hamburgh even the charges expended in pro- 
 curing the release of the cargo alone, when the ves- 
 sel was not in danger, are considered a general aver- 
 age, and apportioned on the cargo, together with 
 that part of other charges of general average which 
 are to be borne by the cargo. This is a deviation 
 from the general principle, and even from the Ham- 
 burgh insurance laAV itself which in art. 7, Tit. 21, 
 directs only that to be admitted as general average 
 which is done for the benefit of ship, cargo and 
 freight. 
 
 It is a common artifice of captors to attempt, by 
 promised advantages, to induce masters of neutral 
 vessels to discharge their cargoes, because this gives 
 them a better chance of a favourable arrangement 
 with the owners. Baldasseroni relates, not indeed 
 for imitation, several instances of captains having 
 extorted large sums from the owners of such cargoes 
 for not unloading, to which the latter consented 
 « T. 4, Tit. 4, rather than to be exposed to greater risks." It was 
 §§ 16&17. piobably with a view to avoid, as much as possible, 
 the measure of unloading, for which captains can 
 rarely be called to account, that a restitution in gen-
 
 Of Average. 163 
 
 eral average has been introduced, almost everywhere, 
 of crew's wages and provisions during the time spent 
 by vessels in a port where they were detained lor 
 examination. Baldasseroni quotes also several in- 
 stances and a circumstantial award from the marine 
 court of Pisa,'^ by which it appears, that the charges a l. c. § 20, 
 expended for the release of both ship and cargo, and 234' ^""^ ^' 
 particularly the latter, also the seamen's provisions 
 and wages, and the bottomry premium granted for 
 providing the necessary funds, were made good by 
 general contribution. The same is done in Ham- 
 burgh, and was formerly so in Holland. Riccard 
 says f — ' When a vessel is taken by force and car- e Negoce 
 ried into a port, and the seamen remain on board for ^t^^^c^^. 
 the purpose of watching and reclaiming her, not only pare Verwer, 
 the charges expended for the release, but also the ^ 
 provisions and wages to the seamen during the time 
 of the detention are brought into general average.' 
 Emerigon adds, upon quoting this passage, that the 
 same principles have always been acted upon at 
 Marseilles^ He communicates moreover a decision, f i. p. 63i. 
 from which it appears that a detention which took 
 place merely on account of the cargo, was neverthe- 
 less considered as a capture, and the laws framed 
 for cases of detention held inapplicable to it. — Yet 
 this is not always done in France. The wages and 
 provisions paid during a detention are very frequent- 
 ly reckoned particular average for the vessel. 
 
 In this country it has not yet been legally decided 
 whether in cases of unjust detention provisions and 
 wages belong to general average.' But as, upon g Park, 7th 
 general principles, they ought to be excluded, I very Ma/s'imif !3d 
 much doubt whether they would be admitted merely ed. ii, 542; 
 upon the ground of expedience. 67^°^"^' ^ 
 
 Emerigon^' relates the following case : — The mas- Plague. 
 ter and two seamen of a vessel bound to Marseilles ^ ^ *J-^' 
 died of the plague, while she was receiving her car-
 
 164 Of Average. — Benecke. 
 
 go at Satalia. The bales of wool which were 
 brought alongside being infected, the crew refused 
 to receive them on board and set sail. The vessel 
 having sprung a leak in a storm, put into Rhodes to 
 be repaired and victualled. A ship-boy, who had 
 entered the hold, having caught the same malady 
 and died, the inhabitants forced the vessel to depart. 
 The gunner, who had occasion to go into the hold of 
 the vessel, also fell sick and died. The vessel ar- 
 rived at Stancho, where by a present of 200 dollars, 
 permission was obtained to take the diseased on 
 shore, to hire a country-house and expose the mer- 
 chandize to the air. Having learnt that the plague 
 had subsided at Satalia, they returned thither to 
 take in the remainder of their cargo. Emerigon 
 being consulted upon this case, decided the whole 
 of the expenses to be general average, as having 
 been intended for the general benefit. — But the de- 
 parture from Satalia was neither for the benefit of 
 the whole, nor for that of the cargo, but was ev- 
 idently determined upon merely for the benefit of 
 the ship's company. The provisions and wages to 
 the crew, therefore, could not belong to general av- 
 erage, neither could the damage sustained in a storm, 
 because they had not exposed themselves to it for 
 the general good. The entering a port in order to 
 repair a leak and receive provisions would not, ac- 
 i Code, 403, 3. cording to the present law of France,' be held gen- 
 eral average. According to the principles advanced 
 by me, the charges of going into port, supposing it 
 to have been necessary for the preservation of the 
 whole, also the 200 dollars paid for the permission 
 given at Stancho, ought to have been general aver- 
 age ; the unloading, airing, &c, of the merchandize 
 particular average for the same ; the repairs partic- 
 ular average for the ship ; and the maintenance and 
 wages to the seamen, if any such were to be paid 
 for that period, would be at the charge of the ship- 
 owner.
 
 Of Average. 165 
 
 The regular quarantine charges, invariably attach- Quarantine. 
 ed to certain voyages, cannot be considered as gen- 
 eral average, 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 v^^hole. The Hamburgh Ordi- 
 nance directs ' charges occasioned by extraordinary 
 quarantine and unavoidable incidents,' to be general 
 average. (Tit. 21, art. 9, No. 10.) Magens'' ]u^t\y ^ P- 67. 
 observes, that this can be understood only of such 
 extraordinary charges as arise from voluntary exer- 
 tions for the greater security of ship and cargo. It 
 is by a palpable misconstruction, that in Hamburgh 
 quarantine charges are brought into general average, 
 which is also contrary to another passage of the 
 law. (Tit. 5, art. 3.) 
 
 Damage by fire, whether occasioned by lightning. Fire 
 by the intrinsic quality of the goods, or by other ac- 
 cidental causes, is doubtless particular average. (1) 
 But if sacrifices be made in order to extinguish the 
 fire, if masts or cables, for instance, be cut away, or 
 the vessel be run ashore, I am of opinion that the 
 damage ought to be general average, although an in- 
 stance of a decision to the contrary is quoted by 
 Emerigon. — ■ If water be thrown down the hatches, i i. p. 436. 
 to stop the progress of an accidental fire in the hold, 
 or between the decks, this must be conceived to be 
 done with the double intention of saving the articles 
 which already caught fire from utter destruction, and 
 of extricating the vessel and rest of the cargo from 
 an imminent danger. The effect of the water upon 
 
 (1) The underwriter on goods destroyed by fire occasioned 
 by the intrinsic quality of those goods, cannot, of course, be 
 liable for such damage. But as to the vessel and to other 
 goods on board, a fire originating in this manner is an exter- 
 nal cause of their destruction.
 
 166 Of Average. — Benecke. 
 
 the former goods is, therefore, particular average ; 
 it is not an injury, but a real advantage done to them. 
 But the damage done bj the water to other goods 
 is, I conceive, of the nature of a general average, 
 upon the same principle on which the occasional 
 damage done to goods during a jettison is considered 
 a Compare as such.'" In the Ordenanzas de Bilbao, it is order- 
 
 Stevens Es- j i i ^ t r • ' i 
 
 say, Supra, p. <^cl, that when a vessel catches lire m a river or har- 
 ^^- hour, and an adjoining vessel is sunk in order to save 
 
 the others, the damage must be made good by a con- 
 ^^Ch. 20, art. tributiou from all the other ships and cargoes." 
 
 Charges. Xhc sevcral charges, necessarily incurred in con- 
 
 sequence of a measure taken for the benefit of the 
 whole, must also, without contradiction, be admitted 
 as general average. The most material of these 
 are the expenses occasioned in raising the necessary 
 funds in a port into which a vessel has been driven 
 in distress. This most important subject is investi- 
 gated in the subsequent part of this chapter. I ob- 
 serve here only, that so much of the charge of pro- 
 curing funds as corresponds with the sum actually 
 employed for the purposes of the general average, 
 and no more, can be admitted ; and it is a gross 
 abuse when, as is sometimes done, the whole of the 
 charges for obtaining funds, such as marine interest, 
 &c, are passed to the general average account, al- 
 though a part of those funds have been employed 
 for a particular average on the vessel, or for the res- 
 titution of other partial damages. This applies also 
 to commissions of agents and attorneys, surveyors' 
 fees, brokerage, postage, and other similar charges. 
 
 Besides the several occurrences enumerated in this 
 chapter, there are many others which may give oc- 
 casion to general average. But it is impossible to 
 determine them all beforehand, since the casualties 
 of navigation are of infinite variety ; nor is this ne-
 
 Money raised abroad. 167 
 
 cessary, because the general principles here laid 
 down are applicable to all cases, and every one who 
 is thoroughly acquainted with them, will be enabled 
 to adapt those general rules to each particular case, (a) 
 
 Of Money raised abroad for the purposes of the 
 Voyage, and its relation to Average. 
 
 When, by any of the accidents of the navigation, Definition. 
 disbursements are required to be made during the 
 voyage, it is evident that each party concerned is 
 
 (a) It has been held in one case in Massachusetts that Temporary 
 temporary repairs which are of no value after the termination repairs. See 
 
 r \ ^ T», /-K-^iT bupra. p. iM. 
 
 of the voyage, are general average. Urooks v. Uriental Ins. 
 Co. 7 Pick. 259, cited 2 Phil. Ins. c. 15, § 2, No. 12. But it 
 seems to admit of doubt whether it can be laid down as a 
 general rule, that such repairs are general average. They , 
 
 resemble the case of hiring sails, cables or anchors, for the 
 use of which the owners ought to pay, unless the occasion 
 of hiring them is one of general average. At least such 
 temporary repairs ought to be particular average when the 
 object is merely to save the extraordinary expense of repair- 
 ing abroad. 
 
 The expense of towing a disabled ship is sometimes gen- Towing. 
 eral average, and this expense often appears in master's ac- 
 counts since the general use of steamboats was introduced. 
 But this expense is general average only when the occasion 
 of it is so. If for instance, a vessel is making a port of ne- 
 cessity to refit, the expense of making which is, in the Unit- 
 ed States, general average, then the expense of hiring a 
 steamboat to tow her will also be general average. But the 
 hiring of a steamboat to tow a ship into or out of the Missis- 
 sippi, to avoid delay on the regular voyage, would be a part 
 of the ordinary expense of navigation, to be borne by the 
 owners. 
 
 The usage to deduct one third for new from the expense of Deduction of 
 repairs of a ship, and charging the repairs at only two thirds a third for 
 of their amount, is adopted in general average as well as in "^^• 
 partial loss. — Ed.
 
 168 Of Average. — Benecke. 
 
 obliged to procure the necessary funds at the time 
 and place where they are wanted. The ship-owner 
 is under no obligation 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 pro- 
 vide the money required for the necessaries of the 
 ship, or of other goods on board. It follows hence, 
 that when money is borrowed abroad for such pur- 
 poses, by a person authorized 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 particular average, as well as a 
 contribution for general average, incurred and paid 
 for during the voyage, may take place even after a 
 subsequent total loss of the ship and cargo. 
 
 The captain is the lawful representative, not only 
 of the ship-owner, but also of the proprietors of the 
 cargo. But his authority, as to raising funds for the 
 purposes of the voyage, is subject to restrictions, 
 which are not the same in all countries, so that not 
 every act of his is binding upon the parties. More- 
 over, he has it not always in his power to raise the 
 money required under such conditions as to make 
 the party alone responsible for whose benefit it was 
 laid out, but is sometimes under the necessity of 
 making one party responsible for another, by w^iich 
 the interests and mutual obligations of the different 
 parties, and their underwriters, frequently become 
 complicated and embarrassed. 
 
 This subject, being of great importance, and inti- 
 mately connected with the adjustment of averao;e 
 claims, deserves to be carefully investigated in this 
 place, the more so as it is far from having yet been 
 sufficiently elucidated. 
 
 Different Thc mcans by which the master of a vessel may 
 
 ways of rais-
 
 Money raised abroad. 169 
 
 raise the money requisite abroad for the purposes of ing money 
 the voyage are, generally speaking : a loan under '^'"""^^ 
 the responsibility of the owners (by passing bills 
 upon them,) a bottomry 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 ; unless he be restricted 
 by the laws of his country, or by the order of his 
 employers. 
 
 The British laws not only do not prohibit the i. Loan upon 
 master's taking upon the credit of his owners such *l!*^ ^''^'^'* °^ 
 
 a A . the owners, 
 
 moneys as he may require abroad for the repair of his or by drafta. 
 ship, or generally for the prosecution of his voyage, 
 but the master is not even allowed to take money on 
 bottomry, except when there is an impossibility, or 
 a difficulty at least, of obtaining supplies on his own 
 or the owners personal credit." This cheaper metb- » Holts Sys- 
 od, therefore, is usually adopted, and the master shi'ppfni'and 
 directed by the owners themselves to resort to it. (a) Navigatton ^ 
 But even when the master, without especial direc- ^^^^^ ', ,. ""' 
 
 ' , ^ Owners na- 
 
 tions from his owners for this purpose, borrows money biiity for the 
 
 abroad for the use of the ship, the latter are com- S"! "" ^"^' 
 
 pelled to pay, although the vessel should afterwards 
 
 be lost. (1) The creditor, however, is required to 
 
 show the actual necessity of those things which gave 
 
 (a) The party answerable for repairs or any other object of 
 expenditure for wliich funds are raised, must also be answera- 
 ble for the premium paid for the exchange on which the money 
 is raised. Humphrey & al. v. Union Ins. Co., 3 Mason, 429, 
 cited 2 Phil. Ins. c. 15, § 8. — Ed. 
 
 (1) Evans v. Williams. See Abbott, P. 11. Ch. iii, § 5. — 
 But where the master of a chartered ship showed A. abroad 
 the charter-})arty, by wliich the freighter covenanted to fur- 
 nish money, and A. advanced money to the master upon a bill 
 on the freighter, which bill was dishonoured, the owners were 
 held not to be liable. Harder v. Br other stone, 4 Canipb. 2.54. 
 
 22
 
 170 
 
 Of Average. — Benecke. 
 
 Fiance. 
 
 P Code de 
 commerce, 
 art. 234. 
 
 1 Emerigon, 
 II. 454. 
 
 «• Ord. Tit. 
 des piopric- 
 taires, art. 2 ; 
 Code, art. 21G. 
 
 » Emerigon, 
 II. 458. 
 
 rise to his demand, the authority of the master being 
 only to provide necessaries. (1) 
 
 In France, the master of a vessel is not alloAved to 
 raise money for the sliip's wants abroad upon the 
 personal credit of his owners, or to draw bills for 
 their account, unless he have a full power from them 
 for this express purpose. The law^ permits only, 
 that if repairs or provisions should be w anted during 
 the voyage, he may either borrow upon the ship, or 
 pledge or sell goods, to the amount which can be 
 proved to be necessary. ^ The responsibility of the 
 owners for the captain's drafts does not extend be- 
 yond the value of ship and freight. If the vessel, 
 therefore, be totally lost, the lenders or holders of 
 the bill have no claim upon the owners, but merely 
 upon the captain.'' The owners are responsible for 
 the acts of the master, as far as they regard the ship 
 and the prosecution of the voyage ; but this respon- 
 sibility ceases with the abandonment of the ship and 
 freight,' a circumstance well deserving the notice of 
 those who may have occasion to make advances to 
 French captains. Emerigon relates several instances 
 of captains having drawn upon their ow^ners from 
 abroad for necessary expenses, because .money was 
 not to be procured either on bottomry, or by the sale 
 of goods, unless to a great disadvantage ; notwith- 
 standing which, the owners, after the loss of the 
 vessel, were judicially exonerated, and the captain 
 held liable. These decisions are grounded upon the 
 maxim that the property on shore is not to be en- 
 dangered by adventures at sea.' The same author 
 very minutely investigates a question proposed to 
 him, whether and by whom a bill issued by a cap- 
 
 (1) Cary v. White. See Abbott, P. II. Ch. iii, § 6 and 7. 
 See also RocJicr v. BusJicr, 1 Stark. 27; Palmer v. Gootcli, 2 
 Stark. 428 ; Holt, I. 384, seqq. — But what a prudent owner 
 would order, is to be considered ns /irressari/ within this rule. 
 Webster v. Seacamp, 4 Barnewall «fc Aid. 352.
 
 Money raised abroad. 171 
 
 tain in favour of the captors of his cargo, for the 
 ransom of the same, ought to be paid, in order that 
 a hostage may be liberated, the vessel having been 
 lost in the continuation of her voyage. He deter- 
 mines in favour of the captain, and holds the pro- 
 prietors of ship and cargo liable, unless they have 
 expressly ordered the captain not to ransom the ves- 
 sel.' — But this appears contradictory to tlie preced- t Emerigon, 
 ing decisions, and I question whether the French ^- ^^^ 
 courts would have decided in the same way. The 
 captain, in this instance, acted in the capacity of an 
 agent for the owners, precisely in the same manner 
 as he would have done in providing money for 
 repairs and other necessaries of the vessel ; and the 
 French law grants him neither in the one case nor 
 in the other a right of endangering the property 
 w^hich the parties interested possess on shore. 
 
 The Spanish law expressly orders the master to Spain, 
 provide by bills on his owners or consignees, the 
 money which he may require abroad for the ship's 
 wants ; and only, if he cannot raise it by these 
 means, do they allow him to borrow on bottomry 
 upon ship and freight, or to sell that part of the 
 ship's apparel, or of the cargo, which can be dispos- 
 ed of with the least disadvantage." The Prussian Prussia. 
 law directs the same, provided there be no agent of J^ g-Jao'"^^''^ 
 the owners at the place where the loan is to be made. Cap. 24, art. 
 In a similar manner the Hanseatic revised marine Hamburgh, 
 law permits the master to borrow upon bottomry &c. 
 only if he cannot either obtain money upon bills, or 
 effect a sale of goods upon less disadvantageous 
 terms than the bottomry premium would amount 
 to.'' The same is enacted by the Danish law.''' ^Tit.G,art.5, 
 The Hamburgh law, indeed, enumerates only the 
 pledging of ship's apparel, sale of goods, and a bot- 
 tomry loan upon the vessel, and the Swedish per- 
 mits only a bottomry loan upon the vessel, and a sale 
 of goods, as the means of raising the necessary funds
 
 172 Q/" Average. — Benecke. 
 
 » Hamb.stat. abro'dd ;'' but it is usual Avitli Hamburgh ship-mas- 
 Mt"'. 7,'V^' ters to provide in such cases the necessary funds by 
 Swed. c- 2^'^^ bills. By the Hamburgh law/ (and by those of all 
 Tit. T4, art. si maritime nations, excepting the French,) (1) the un- 
 Tit^ 15, art. 2 (jej-^ynters are bound to pay the salvage charges ex- 
 pended, though they may exceed the value of the 
 2 That ran- articlcs saved, and the expenses of ransom,^ or re- 
 in'Engianf ^ clamatiou, even in addition to the full amount in- 
 has been ob- guied, if the vesscl should be afterwards lost. It 
 serve ,p. o . ^^jj^^^g heucc that the owners also are obliged, even 
 after a loss of the vessel, to pay the money bor- 
 rowed upon their credit, or drawn upon them for 
 these purposes. For it is evident that the under- 
 writers could not be under this obligation, if it were 
 not a duty incumbent also upon the owners. 
 
 Thus, it appears to be a rule established in all 
 countries, without exception, that if a vessel, for the 
 necessities of which upon her passage bills have 
 been drawn, arrive safely at the place of her desti- 
 nation, the charges incurred in drawing, such as 
 commission, loss in the exchange, interest of money 
 advanced, &c, must be added to the other expenses, 
 and repaid by the parties interested, according to 
 their respective shares : so that the charges of rais- 
 ing money for defraying expenses of the nature of 
 a general average, belong to general average ; those 
 incurred for paying a particular average on the ves- 
 sel, constitute a particular average on the vessel, &c. 
 — And it also appears, that in England, as well as 
 in every other country, except where the French law 
 is in force, the same rule will prevail, if the vessel 
 
 (1) French underwriters never pay more than the sum in- 
 sured, (Ord. li. t. 45; Code, art. 381,) unless there be a clause 
 to the contrary in the policy, as in those of Bordeaux and 
 Nantes. This unreasonable regulation prejudices the under- 
 writers themselves, as it bars the preventive efforts of the as- 
 sured or their agents, and causes them to have recourse to 
 abandonment wherever the case admits of it.
 
 Money raised abroad. 173 
 
 do not reach the port of her destination, or be either 
 totally or partly lost. The money raised must be 
 repaid in the same manner as it" the vessel had safe- 
 ly arrived, because every party was under an obliga- 
 tion, unconditionally, and without reference to any 
 subsequent event, to pay his proportion at the time 
 and place where the disbursements became neces- 
 sary. — A general average, therefore, incurred in an 
 intermediate port, must be adjusted, even after a 
 subsequent loss, contributed for by the parties inter- 
 ested, and repaid to them by their underwriters, as 
 if the vessel had safely arrived. That ship-owners 
 and proprietors of cargoes, as well as their under- 
 writers, should thus be exposed to losses exceeding 
 the capital originally invested or insured is perfectly 
 consistent with the nature of the subject, and should 
 be considered beforehand by every person hazarding 
 his property upon the seas, or engaging in insuran- 
 ces. It is evidently, therefore, a false maxim in the 
 French jurisprudence, that the property on shore 
 should never be prejudiced by adventures at sea. 
 
 If it be timely known, that by repairs, recapture Means of pro- 
 
 1 f ^ c • 1 T 1 vidinff against 
 
 or charges 01 release, &c, a new capital has been a loss exceed- 
 exposed to risk, in addition to that originally invested, ing a total one. 
 the loss exceeding a total one may be avoided by an 
 insurance on money expended, &c, of which kind (a) («) Thischap- 
 of insurance I have treated in the third chapter. in'^the°present 
 Such insurance becomes the more necessary when volume. 
 the ship or the cargo belong to France or Holland, 
 or even when any of the parties concerned in the 
 cargo reside in those countries, who in case of loss 
 might avail themselves of the French laws in re- 
 fusing the payment of their share. Although they 
 might be compelled ultimately to submit to the law 
 of the place where the contract was made, yet this 
 would expose the other parties to trouble and lit- 
 igation.
 
 174 t Of Average. — Benecke. 
 
 II. Supplies The method of raisiiip- money upon bottomry is 
 
 by bottomry . ~ i j* r i 
 
 loan and sale, more cxpcnsivc than that upon the credit ot the 
 owner, or by bills : but, if the bottomry bond is well 
 adapted to the case, and thai thing only hypothecated 
 for which the funds are required, it possesses this 
 material advantage, that only the original capital, 
 and no more, can be lost in the case of a subsequent 
 misfortune. If, for instance, the captain hypoth- 
 ecates the ship alone, for the repairs of a damage 
 concerning only the ship, the owner or his under- 
 writer cannot under any circumstance lose more than 
 the whole capital originally hazarded. 
 
 Power of the Jt has been shown above that bv the laws of all 
 
 master to re- . ^-i ■ • <> n •' i • i 
 
 sort to them ; countries, the master (1) IS lully warranted in thus 
 
 fmpropnetTof ^yP°^^^^^^^^"S ^^^^ ^^ip for neccssaries abroad. But 
 the measure, it is material to observe that the master has this au- 
 thority in the quality of an agent only, and that for 
 this reason he cannot have it at the place of his 
 owners' residence, or indeed at any place where he 
 has an opportunity, without loss of time, to consult 
 his ow^ners upon the subject. For although the mas- 
 ter may order necessaries at home as well as abroad, 
 a Holt, 1. 385. ^j-j^ thereby equally bind his owners personally,'' yet 
 as the powder of hypothecating the ship amounts al- 
 most to a power of absolutely disposing of it, the 
 ferent laws^^^ laws of all countrics,'" and the usage in our own, 
 cited ahove, p. limit tliis hypothecation by the master to the cir- 
 ~ ■ cumstance of the vessel being in a foreign country, or 
 in the course of her voyage, and not in the place of 
 her owner's residence. This term, place of resi- 
 dence, however, has received a large interpretation 
 by some of the decisions, both in the courts of law 
 and Admiralty. Thus Ireland was held to be a for- 
 
 (1) In the absence of the master the mate has a right to 
 hypothecate the sliip or to sell a part of the cargo for the pur- 
 pose of paying salvage. By Lord Ellenborough, in Parmctcr 
 V. Todhunter, 1 Campb. 542.
 
 Money raised abroad. 175 
 
 eign country, so far as to justify the master in hy- 
 pothecating the ship there ; and Jersey was consid- 
 ered for the same purpose as a foreign possession, 
 with respect to an owner of London. — But if the 
 master can correspond with the owners it is not such 
 a case of extreme necessity as to give him the pow- 
 er of hypothecation.'' " See Holt, i. 
 
 But if not only the thing for which the money and^the cases 
 was required, but also the property of third persons, cited there. 
 be pledged, it is apparent that difliculties and in- 
 justice in various ways may arise. We have prin- 
 cipally to consider in this place the hypothecation of 
 ship and cargo, and the sale of a part of the cargo, 
 which is nearly related to an hypothecation of the 
 whole. 
 
 As to the master's authority of pledging the cargo 
 or selling a part of the same, it is clear that the 
 master is not in the same sense an agent of the 
 proprietors of the cargo, as he is agent to the ship- 
 owner. In regard to the former he is only a carrier, 
 unless especially constituted an agent.'' Unless, ^ i Rob. 
 therefore, in the case of extreme necessity, whicli 84,'i5i and 
 requires the sacrifice or hypothecation, in part or i^^- 
 whole, of the cargo as well as the ship, no act of 
 the master can affect the owner of the cargo." e o Rob. 251. 
 
 It is deserving of notice that all the foreign laws 
 quoted above, in speaking of the power of the mas- 
 ter to hypothecate, mention only the ship and tackle, 
 some including also the freight, but none the cargo, 
 with the exception of the French Code de commerce 
 which materially differs in this respect from the an- 
 cient law, the Ordonnance. (1) Though we are not, 
 
 (1) It is true that the sale of part of the cargo, which tlic 
 foreijrii ordinances admit, is similar in some respects to the 
 hypothecation of the whole cargo. But there is this material 
 difference between sflling and pledging of goods, that in the 
 one case the caj)ital exposed to risk is not iipan. the whole aug- 
 mented, but in the other it is, as I shall have occasion to show 
 in the sequel.
 
 176 Of Average. — Benecke. 
 
 from this circumstance, warranted in concluding 
 that those legislators have considered the hypothe- 
 cation of ship and cargo as inadmissible under all 
 circumstances ; yet it incontestibly shows that this 
 measure should not be resorted to unless in cases of 
 ' urgent necessity. We may easily convince our- 
 selves of the impropriety of unnecessarily pledging 
 ship and cargo, by considering the consequences 
 which may result from such a measure. Let us 
 suppose that a master pledges ship and cargo, in 
 order to provide money required for repairs, &c, 
 which concern the vessel alone, and which, there- 
 fore, the ship-owners alone ought to have provided. 
 Should the vessel in the continuation of her voyage 
 lose a part or the whole of her value, and the lender 
 on bottomry receive his payment out of the proceeds 
 of the cargo, the inevitable consequence will be, that 
 either the owner will have to pay the sum borrowed 
 out of his priA ate means, in which case the second 
 object of bottomry loans, viz. that of not risking 
 more than the sum originally invested, is entirely 
 lost; or that the proprietors of the cargo must bear 
 a loss quite foreign to them, and with which they 
 ought consequently to have no concern. 
 
 Validity of an The most remarkable case decided in British courts 
 ofship*^and°" rcspcctiug the authority of the master to hypothecate 
 cargo. xhe cargo, or to sell any part of the same, and the 
 
 validity of such transactions, is that of the Gratitu- 
 dine, tried in the court of Admiralty, w^hich there- 
 fore deserves our utmost attention. 
 Gratitudine, The Imperial ship Gratitudine, bound from the 
 Rep^ 240. '" Mediterranean \v\t\\ a cargo of fruit to London, 
 was driven into Lisbon to refit. The master applied 
 for advice and assistance to one of the Portuguese 
 correspondents of the consignees in England ; the 
 Portuguese wrote to the consignees, and received an 
 answer from them, that it belonged to the master
 
 Money raised abroad. 177 
 
 exclusively, to adopt every necessary measure for the 
 preservation of the cargo. By an estimate and sur- 
 vey made under the authority of a court at Lisbon, 
 the ship was declared to be of sufficient value to 
 warrant the repairs. The master borrowed the ne- 
 cessary sum on a bottomry bond, binding the ship, 
 freight and cargo, the amount of which exceeded 
 the estimate of the ship in her damaged condition, 
 and of the freight, by a sum which was supposed to 
 be about equal to the charge that would fall upon the 
 cargo. The loan not being discharged after the 
 ship's arrival in London, the creditor instituted a 
 suit in the court of Admiralty against the ship and 
 cargo. The learned judge of the court said in sub- 
 stance, ' that the master not being able to raise 
 money on the security of the ship alone, he was ne- 
 cessarily obliged to resort to the cargo ; that it could 
 not be said that the master is in all cases to wait till 
 he hears from a distant country ; that the necessity 
 of such a case, therefore, compelled a choice of one 
 of two things, to sell a part of the cargo, for the 
 purpose of applying the proceeds to the prosecution 
 of the voyage by the repair of the ship, or to hy- 
 pothecate the whole, for the same purpose. With 
 respect to the sale of a part of the cargo, the books 
 overflowed with authorities. With respect to the 
 cargo, indeed, the power of selling could not ex- 
 tend to the whole, because it never can be for the 
 benefit of the cargo, that the loliole should be sold 
 to repair a ship which is to proceed empty to her 
 destination. But that hypothecation might be of 
 the whole, because it may be for the benefit of the 
 whole, that the whole should be conveyed to its 
 proper market : the presumption being, that this 
 hypothecation of the whole, if it affects the cargo 
 at all, will finally operate to the sale of a part, and 
 this in the best market at the place of its destination, 
 and in the hands of the consignees.' It did not ap- 
 23
 
 178 Of Average. — Benecke. 
 
 pear, whether or not the master had an opportunity 
 of sending the cargo by another ship, hut the same 
 learned judge held, that according to all the authorities 
 on the subject of transhipment, the master was not 
 hound to tranship. The hypothecation, accordingly, 
 was decreed to be valid. But on account of the 
 great importance of the question, the learned judge 
 invited the parties to bring it by appeal before an- 
 otlier tribunal. 
 
 Although this decision proves the legality of selling 
 a part, or hypothecating the whole of the cargo upon 
 pressing occasions, such as when the master is with- 
 out the means of obtaining from his owners, or in 
 any other way, the necessary funds ; when the pro- 
 prietors of the cargo also are benefited by the mea- 
 sure ; when the money required for the ship is not 
 to be had upon the security of the ship alone, or 
 when a part of the funds required must be expend- 
 ed for the carso itself. Yet it would be miscon- 
 struing the meaning of the learned judge, to conclude 
 that every hypothecation of ship and cargo, without 
 the circumstances alluded to, would receive legal 
 sanction. In truth, the sale or pledging of an- 
 other's property l^y a person who -was, entrusted with 
 it for quite different purposes, unless done with the 
 express view of benefiting the proprietor, is so op- 
 posite to the most common notions of justice and 
 equity, that it cannot be admitted or excused, except 
 upon the plea of absolute necessity. The purchaser 
 of such property, or the lender, knowing it not to be- 
 long to the seller, or borrower, becomes likewise 
 implicated in the transaction of the latter. And as 
 by every law the lender on bottomry generally is 
 under an obligation of ascertaining whether the mo- 
 ney, pretended to be borrowed for a particular pur- 
 pose, be really wanted for that purpose, (although he 
 be not obliged to ascertain the real application of 
 the money towards that purpose,) so he ought like-
 
 Money raised abroad. 179 
 
 wise to be bound to ascertain, that the master who 
 sold or pledged goods, was really under a necessity 
 of resorting to that, measure. (1) And those hypo- 
 thecations of sjiip and cargo ought least of all to 
 enjoy the protection of the law, which are made for 
 the wants of the ship alone to an extent for which 
 the value of the ship and the freight would have af- 
 forded a sufficient security. Ignorant ship-masters 
 are generally persuaded to this by the lenders, who 
 wish to receive for the same marine interest an ad- 
 ditional security to that which the master has a right 
 to hypothecate to them. Such bonds ought, there- 
 fore, to be considered as referring only to the ship 
 and freight, and the cargo ought never to be preju- 
 diced by them. 
 
 In like manner, hypothecations made by the mas- 
 ters against the wish of their owners, or even with- 
 out their consent, when they might have been con- 
 sulted, are not valid, nor is a sale or hypothecation 
 legal where the object has been, not the benefit of 
 
 (1) There is a very strong case to show, that the purchaser 
 of goods, sold by the master, ought to ascertain, whether tlie 
 master was under an absolute necessity of selling such goods. 
 — In the course of a voyage from India, a ship was wrecked 
 off the Cape of Good Hope, and 42 chests of indigo saved 
 (perfectly sound) which were there sold by public auction, by 
 the authority of the master, acting bond fide, according to the 
 best of his judgment, for the benefit of all persons concerned; 
 but the jury finding that there was no absolute necessity for 
 the sale, it was held, — that the purchaser at such sale (who 
 knew, or might, or ought to have known, the circumstances of 
 the sale,) acquired no title, and the indigo liaving been sent 
 to this country, the original owners were held entitled to re- 
 cover its value. — Mr Justice liaylcy said: 'The rule laid 
 down by Holt, C. J., in Johnson v. Shippen, (2 Ld Raym. 
 984,) is this, that the master has no authority to sell any part 
 of tlic ship, and that his sale transferred no property ; but 
 that he might hypothecate ; and this is cited and relied upon 
 by Lord Ellcnhorouffh in Rcid v. Darhy. (10 East, 157.) 
 Absolute necessity constitutes the only exception.' Freeman 
 V. E. India Company. 5 Barn. &i. Aid. 617.
 
 Noorman. 
 
 1 80 Of Average. — Benecke. 
 
 the owners by furtherance of the voyage, but the 
 advantage of a third person. A case of this descrip- 
 tion was tried in the court of Chancery, in the sum- 
 mer of 1822, which deserves to be known, espe- 
 cially as it shows that the proprietors of cargoes 
 may secure themselves against such unlawful pro- 
 ceedings of the master by an injunction in Chancery. 
 Morrison v. — A Dutch vcsscl bouud from Riga to Toulon with 
 timber, had put into Copenhagen on account of 
 damage, and the master had signed a bottomry bond 
 upon the ship and cargo for the repairs. On the 
 prosecution of her voyage the vessel again sustained 
 material damage which obliged her to put into Cowes. 
 A person of that place not only undertook the re- 
 pairs, but furnished the captain with money for pro- 
 visions and sailors' wages, &c, probably in hopes of 
 securing himself by a bottomry bond upon ship 
 and cargo. The ship-owners ordered the captain 
 not to sell or pledge the cargo, who, nevertheless, 
 being pressed by his creditor, attempted that mea- 
 sure, although the agent of the proprietors of the 
 cargo offered to pay down his proportion of the 
 general average, and even to receive the cargo at 
 Cowes, paying freight j^ro rata itineris. This offer 
 being refused, the agent obtained an injunction in 
 Chancery both against the sale and hypothecation ; 
 and he afterwards proved that neither the hypothe- 
 cation nor even the sale of the whole of the ship 
 and cargo would be sufficient to defray the master's 
 debt at Coives and the former bottomry bond, upon 
 which the injunction was confirmed. The Lord 
 Chancellor said, in substance, ' that the master must 
 not sell a part of the cargo, if he cannot, by selling 
 that part, save the rest of the cargo ; nor must he 
 hypothecate the whole, if he cannot by that hypo- 
 thecation, save a part of the cargo.' — If, under 
 those circumstances the sale or hypothecation had 
 been allowed, which evidently was not intended for
 
 Money raised abroad. 181 
 
 the advantage of the proprietors of the cargo, the 
 latter would have been obliged to pay the debt of 
 the captain, with which they had not the least con- 
 cern. A lien upon the cargo would thus have been 
 given to the creditor of the master, and the loss sus- 
 tained by a credit indiscreetly bestowed, instead of 
 falling upon the individual who granted it, would 
 have been thrown upon a third person. 
 
 It will appear from what has been stated, that the 
 hypothecation of ship and cargo, or of ship and 
 freight, and a sale of part of the cargo, is with 
 most propriety resorted to, when all parties are 
 equally concerned in the measure, as in cases of ran- 
 som (where this is legal), of reclaiming ship and 
 cargo, and generally in all cases where the money 
 required is entirely or chiefly of the nature of a 
 general average ; that it is admissible, when, al- 
 though the money be required for the necessities of 
 the vessel only, it nevertheless benefits the owners 
 of the cargo by furthering the voyage ; that the 
 master's authority to hypothecate the ship and cargo, 
 and to sell part of the cargo, is doubtful at least, 
 when the interest of the ship-owner alone, and not 
 that of the proprietors of the cargo, is concerned ; 
 and that both measures are altogether inadmissible, 
 when they are adopted by the master against the 
 will of the owners, or when the money required for 
 the use of the ship only, might have been procured 
 upon the security of the ship and freight alone. (a) 
 
 When a bottomry loan on ship and cargo, or a Relations and 
 sale of part of the cargo has thus been concluded arismVout of 
 
 a justitiablc 
 / \ iTri 1 IT /• 1 i • sale in a port 
 
 (a) Where the master sold a part of the carg^o to raise of shelter. 
 
 funds to ])ay a debt contracted by him as agent for the owners, 
 to avoid being arrested for the debt, it was held that this was 
 )iot a case of general average. Dobson v. Wilson, 1 Camp. 
 480. — Ed.
 
 1 82 Of Average. — Benecke. 
 
 under circumstances which warrant the transaction, 
 it remains to be ascertained what reciprocal obliga- 
 tions and relations will take place between the mas- 
 ter or ship-owner and the owners of the articles sold 
 or hypothecated ; between the several owners of the 
 cargo among themselves, and between them and theii^ 
 underwriters. 
 
 I shall investigate the subject first as to goods 
 SOLD, and afterwards as to the hypothecation of 
 
 SHIP AND CARGO. 
 
 General in- In rcspcct to goocls sol(l at an intermediate port, 
 thf sd^'ect" the question will be much simplified, if we distin- 
 guish : Whether the money w as required for pur- 
 poses constituting a general average ; or for a neces- 
 sity incurred by the ship only; and if, in \\\q former 
 case, we consider the goods sold (as in cases of jet- 
 tison) precisely as if they had remained on board. I 
 begin by treating this matter theoretically and with- 
 out reference to existing laws, of which I shall speak 
 afterwards. 
 
 If the proprietor of the goods sold is not insured, 
 or if, by the insurance laws of his country, the sale 
 of goods at an intermediate port, warranted by ne- 
 cessity, is considered a peril of the sea at the risk 
 of the underwriter, no party can be injured by the 
 sale being considered like a jettison : for the pro- 
 prietor of such goods will, under all circumstances, 
 remain in precisely the same situation in which he 
 would have been if his goods had not been sold. If 
 the ship and cargo safely reach the place of their 
 destination, he has a claim not only upon the ship- 
 owner, (for the master had acted for the joint benefit 
 as agent to all parties.) but upon all parties con- 
 cerned, w^ho will have to pay him the net value of 
 his goods at the place of destination, and the captain 
 the freight for the same, by a general contribution, 
 to which he himself has to pay his proportion ac- 
 cording to the value of the goods sold. — If the ship
 
 Money raised abroad. 18^ 
 
 and cargo be totally lost, he has nothino to claim, 
 for he has lost nothing but what would have been 
 lost if no sale had taken place. — If the vessel dur- 
 ing the voyage becomes unseavvorthy, and the cargo 
 must be sold at an intermediate port, a contribution 
 for the goods must be made according to the net 
 ^ alue which they would have had at that place. — 
 If the cargo be saved in case of shipwreck, the claim 
 is to be reduced in the same manner as after a jet- 
 tison, because it may be fairly supposed that the 
 goods sold would have sutfered equally with the rest 
 of the cargo, had they remained on board. 
 
 Indeed a sale of goods under the suppositions here 
 made, resembling so nearly a jettison as to motive, 
 it will be a more natural way to treat it as such 
 also in its consequences, than to hold the captain 
 or owner alone responsible for a measure taken for 
 the joint benefit of all parties. — Suppose a captain 
 having to paj^ one-eighth of the value for salvage of 
 a vessel and her cargo recaptured. If he pay the 
 ship-owner's proportion in money, and deliver up 
 one-eighth part of each article on board in kind, it 
 will certainly not be attempted after a subsequent 
 loss, to make the ship-owner answerable for the 
 articles thus disposed of; for each party had paid 
 nothing but what he was obliged to pay. But if, 
 instead of this, the captain is under the necessity of 
 selling a part of the cargo, in order to pay the sal- 
 vage of the ship and cargo, I do not conceive why 
 the ship-owner should be responsible for the whole, 
 the captain having acted as a general agent for the 
 interest of each individual concerned ; or why the 
 owner of the goods sold should have a claim of resti- 
 tution merely upon the ship-owner, and not upon the 
 other proprietors of the cargo for their respective 
 shares. 
 
 In the second case, where the sale has been made 
 to supply wants sustained by the ship only, conse-
 
 184 Of Average. — Benecke. 
 
 qiientlj for the benefit of the ship-owners alone, the 
 proprietor of the goods sold can have no claim what- 
 ever upon the other proprietors of the cargo, and the 
 transaction rests entirely between him and the owner 
 of the ship. The goods sold might, indeed, in such 
 cases, be also considered as remaining still on board, 
 and as being liable, like the rest of the cargo, to di- 
 minution in value by misfortunes. But since, by the 
 maritime laws of several states, the owner cannot be 
 made responsible for more than the amount of the 
 ship and freight, it is but just that wherever this law 
 exists, the proprietor of the goods sold should be in- 
 demnified, by way of compensation, for the whole of 
 his demand, to the extent of ship and freight ; or, 
 in other words, that the transaction should be con- 
 sidered as a forced bottomry loan upon ship and 
 freight. The owner of the goods sold is in that 
 case not necessarily in the same predicament with 
 the owners of the goods not sold, but the result to 
 ' him may be better or worse than to them, according 
 to circumstances. (1) 
 
 But this arrangement, simple and natural as it is, 
 can be adopted only, as I have before observed, 
 where the proprietor of the goods sold is allowed, in 
 case of the vessel's being lost, to recover their 
 amount from his underwriters. For if the latter be 
 exonerated, the sale at the intermediate port being 
 
 (I) It does not necessarily follow from the nature of the 
 transaction, that a sale for the henefit of the ship-owners 
 should be looked upon as a bottomry loan. It will be neces- 
 sary to consider it as such in places only where the ship- 
 owner is allowed to disengage himself from all demands, by 
 abandoning the ship and freight. Where this is not the case, 
 the sale may also be considered as constituting a personal 
 debt of the owner to the proprietor of the goods sold. This 
 ought to be so likewise in all cases, where the sale was ef- 
 fected by the directions of the ship-owners, when they might 
 and ought to have found other means for providing the mo- 
 ney. — The foreign laws are silent upon this subject.
 
 Money raised abroad. 1 86 
 
 considered as an event for which he is not responsi- 
 l)le, the proj^rietor of the goods sold would evidently 
 suifer if he could not recover, in case of loss, either 
 from the ship-owner or from the rest of the proprie- 
 tors of the cargo, according to the circumstances of 
 the case. 
 
 Emerigon decidedly asserts such a sale to be a 
 peril of the sea (ime fortune de mer) for which the 
 underwriters are liable. = In Hamburgh it is like- ^ ^mer. il, 
 wise considered as such, and is reckoned one of 
 those unforeseen events for which the underwriter 
 is become responsible by placing himself entirely in 
 the situation of the assured. The same principle I 
 doubt not, would be observed everywhere on the 
 continent. The underwriter, in reality, is not wrong- 
 ed by the goods being considered as having remain- 
 ed on board. He is not charged with a new risk ; 
 on the contrary, if his liability ceases with the sale 
 of the goods, he is exonerated from the perils of 
 the remaining part of the voyage, for the whole of 
 which he had received a premium. If the sale was 
 effected merely to benefit the owner, and the tran- 
 saction is considered as a bottomry loan upon ship 
 and cargo, the underwriter may certainly, in the 
 event of the ship being lost and the cargo jH'eserved, • 
 be in a worse situation than he would have been if 
 the goods had remained on board, and his risk un- 
 altered ; but, on the other hand, he may have an ad- 
 vantage, if the ship be entirely or partly saved. — 
 Should the captain have sold more than he ought, or 
 under circumstances not entitling him to sell, this 
 ought to be considered as a fraud or mismanage- 
 ment on the part of the captain. 
 
 Most of the foreign laws, ancient as well as Foreign laws. 
 modern, with the exception of the modern French 
 Code, treat of the sale of goods, as far as they dis- 
 cuss the subject, in the manner above stated. The 
 Consolato del mare (cap. 105) gives to the owner of 
 . 24
 
 1 86 Of Average. — Benecke. 
 
 goods sold at an intermediate port a privilege only 
 upon the ship. By the laws of Oleron (art. 22) he 
 can sue the master only when the ship is arrived at 
 her port of discharge. The laws of Antiverp (art. 
 19) determine, ' that such goods shall be paid to the 
 merchant at the price at which the other goods will 
 be sold.' So that, if the other goods be lost in the 
 prosecution of the voyage, all are placed in the same 
 situation. 
 
 Emerigon says, that a singular direction respecting 
 the sale of goods in a port of shelter, is contained in 
 the 68th article of the marine law of Wisbuy, name- 
 ly, that the master shall be obliged to pay for the 
 goods thus sold, even if the ship be afterwards lost. 
 Valin approves of this direction, and is of opinion, 
 that the master ought to pay the sum thus realized, 
 as if he had borrowed it from another, and drawn a 
 bill for it. Pothier expresses the same opinion, add- 
 ing, however, that by persons who possess much 
 knowledge of marine law, he is informed that the 
 owner of the goods sold can demand nothing if the 
 ship miscarry. To this latter opinion Emerigon ac- 
 h Emer. ccdcs, finding it conformable to the marine law.'' 
 11.445. j3y^ j|. deserves to be noticed, that at least not all 
 
 the editions of the law of Wisbuy contain the above 
 regulation ; and that it remains doubtful at least 
 whether this article be genuine or not. The 40th 
 article, on the contrary, prescribes, that the master 
 who, in cases of necessity, sells goods abroad, shall 
 pay for the same upon his arrival at the place of dis- 
 charge, at the market price, and receive his freight 
 in full. Verwer, in his notes upon this article, and 
 upon the 19th of the Ordinance of insurance oi Philip 
 i intheedi- II,' says, that the master, on his safe arrival, ought 
 ^^'^^AQanl^' ^^ restorc the merchant's interest ; that is, place 
 152. him, with regard to the goods sold, in the same 
 
 situation in which he would have been if they had 
 safely arrived. — With the last cited article of the
 
 Money raised abroad. 1 87 
 
 laws of Wishmj the Hamburgh statutes, and several 
 others,'' verbally agree. Langenheck observes, upon k Tit. 14, art. 
 this occasion, that the restitution by the master is to |,' .^^^^'^^ ^^ 
 be made at the average market price, upon the conclu- 
 sion of the voyage, and the ship's safe arrival at the 
 place of destination. 
 
 Thus, it appears that, according to these laws, the 
 owner cannot be made responsible after a loss of the 
 ship. But whether he may not remain personally 
 liable, if the value of the ship and freight, after arri- 
 val at the place of destination, be insufficient to pay 
 for the goods, is left undecided. 
 
 The Code de commerce ordains likewise, ' That 
 the owners of the vessel, or the captain who repre- 
 sents them, shall pay for the goods according to the 
 price which goods of a similar description and quality 
 bear at the place of destination, on arrival of the 
 vessel." But in another place (Tit. 8, du fi'et) it is i Art. 234. 
 ordained, that ' if the vessel be lost, the captain 
 must restore the goods according to the price which 
 he has received for them, deducting the freight 
 stipulated in the bill of lading.''" m Art. 298. 
 
 This direction might least of all have been expect- 
 ed in the French laws, their leading principle being, 
 that the property on shore should not be prejudiced 
 by adventures at sea." Where is the ship-owner to n see above, 
 seek redress ? From his underwriter he can claim ^' '^'^' 
 only the sum originally insured. The captain, who 
 was by law authorized to effect the sale, cannot be 
 compelled to a restitution ; nor would a contribution 
 by general average, after the loss of the vessel, pro- 
 bably take place. He has, therefore, no resource, 
 except, if he receive information in time, by insuring 
 the value of the goods sold as money expended, &c, 
 by which two premiums would be paid for one and 
 the same object. And is the proprietor of the goods 
 sold to be indemnified by the ship-owner, even if he 
 be insured, and consequently will be indemnified by 
 his underwriter ?
 
 188 Of Average. — Benecke. 
 
 In Hamburgh, and wherever the above principles 
 are observed, no insurance for money expended, &:c, 
 can take place on account of a sale at a port entered 
 in distress. 
 
 Underwriters It has been decided, in a case argued in the King's 
 irerlShabie Bcuch, in Novcmber 1816, that the underwriters on 
 for goods sold poods are not responsible for a sale of the same in a 
 
 by the master '--' r ^ ^ 
 
 in order to port 01 shcltCr. 
 
 pafrsofihe Goods, cousistiug of 153 hogsheads of sugar, 72 
 
 ship. puncheons of rum, and 20 casks of coffee had been 
 
 Powell T. insured ' at and from Dominica to Bristol.'' When 
 5 Mauie <s» the loadiiig was completed, and the ship was about to 
 Seiw. 431. g^j]^ ^ violent hurricane drove her from her moorings, 
 and did material damage to the ship and cargo. 
 Part of the tackle was forced to be cut away and 
 abandoned, and the ship was taken to the island of 
 St Thomas^ where it was found necessary to unload 
 the cargo. It appeared, that of Qb hogsheads of the 
 sugar part had been washed out, and the rest dam- 
 aged. These Qb hogsheads were sold as damaged, 
 and the remainder of the goods safely warehoused. 
 The necessary repairs were done to the ship to ena- 
 ble her to proceed on her voyage ; in order to defray 
 the expenses of which repairs, the master of the ship, 
 not having other funds in hand, or other means of 
 raising money, sold part of the cargo, and amongst 
 other goods, 52 hogsheads of sugar, 6 casks of coffee, 
 and the 72 puncheons of rum, part of the goods be- 
 longing to the plaintiff, and applied the proceeds to de- 
 fray those expenses. When the vessel was repaired, 
 and the rest of the cargo re-shipped, she went to St 
 Croix, out of her course to Bristol, to make good 
 her freight, whereupon she returned to St Thomases, 
 and from thence sailed for Bristol, and was captured 
 on her voyage home by the French and condemn- 
 ed. — The defendant paid into court a sum sufficient 
 to cov'er the partial loss of the goods (the 65 hogs-
 
 Money raised abroad. 1 89 
 
 heads of sugar) by the perils of the sea, the propor- 
 tion of the general average, and the expense of 
 labouring and travelling for the safety and preserva- 
 tion of the cargo. At the trial there was a verdict 
 for the plaintiff, subject to the opinion of the court 
 upon the following question : — Whether the plaintiff 
 were entitled to recover beyond the sum paid into 
 court, in respect of the loss accruing from the goods 
 sold to defray the expenses of repairing the vessel ? 
 If the court should be of that opinion, the verdict to 
 be entered for a sum to be ascertained out of court ; 
 if otherwise a nonsuit to be entered. 
 
 On the part of the plaintiff it was argued, that, the 
 policy being against all losses which may arise from 
 the perils of the sea, the defendant was liable to 
 make good this loss, in as much as it was a loss 
 resulting from the perils of the sea. — On the other 
 side it was contended, that the indemnification for 
 the loss arising from the sale of the goods was a 
 matter wholly between the ship-owner and the mer- 
 chant, and formed no part of the underwriter's un- 
 dertaking, the responsibility of keeping the ship in 
 repair lying entirely with the ship-owner. That, 
 besides, this was not a loss by the perils insured 
 against, because that must be a peril acting upon the 
 subject immediately, and not circuitously, as in the 
 present case. 
 
 Lord EUenborough, Chief Justice. — 'I am in- 
 clined to think, the damage in this case is to be con- 
 sidered as not arising immediately from a peril of 
 the sea, although, in a remote sense, it may be said '' 
 
 to have been brought about by a peril of the sea ; 
 but our rule of construction is, causa proxima nan 
 remota spectetur. The injury to the assured was 
 caused by the sale of their goods ; but no one will 
 contend that the sale was an immediate consequence 
 of a peril of the sea. The peril of the sea, damaging 
 the ship, rendered it innavigable ; to restore its navi-
 
 1 90 Of Average. — Benecke. 
 
 gability a refitment became necessary. The captain 
 who was interested in and bound to have the ship in 
 a navigable state, being miable to raise the means 
 for refitting her, was obliged lo apply to the owners 
 of the goods for a loan, through the medium of a sale 
 of part of the goods. It was, therefore, a sort of 
 forced loan which was the proximate cause of loss to 
 the owners from the sale of their goods. This was 
 indeed connected with a peril of the sea, because a 
 peril of the sea occasioned damage to the ship, which 
 made repairs necessary, and funds to provide these 
 repairs ; but it was the want of funds aliunde which 
 obliged the captain to have recourse to a sale of the 
 goods. In conformity, therefore, to the rule, that 
 the proximate cause, and not that which is remote, 
 is to be looked to, I think the underwriter is not 
 liable. Giving the largest construction to the gen- 
 eral words ' perils of the seas,' I think this is not a 
 case of immediate loss by ' perils of the seas.' 
 
 Baijley, J. — 'I am entirely of the same opinion. 
 It does not appear to me that this was a loss by the 
 perils of the sea, or such as entitles the assured to 
 recover under the general words of the policy, but a 
 loss for ivhich the owners of the goods will be enti- 
 tled to be reimbursed by the owner of the ship. The 
 owner of the ship undertakes to have the ship fit 
 to perform her voyage ; and in case of accident, it 
 is the duty of the owner, or the master in place of 
 the owner, to provide for its repair. I consider it as 
 a rule applicable to the construction of policies, that 
 the court must look to the immediate cause of loss, 
 in order to ascertain whether it be a loss within the 
 policy. The loss here was occasioned by the act of 
 the captain, who disposed of the goods in order to 
 provide himself with funds for the repair of the ship. 
 If he could have raised these funds in any other way, 
 he would not have taken the goods. To hold this 
 a loss for which the underwriter is responsible, would
 
 Money raised abroad. ' 191 
 
 be to make his liability depend upon the accident of 
 the captain's being unable to provide funds for the 
 repair, except by means of the goods.' Judgment 
 of nonsuit. 
 
 Thus it appears that the British ship-owner is British ship- 
 equally responsible to the owner of goods sold come deblors 
 abroad, in order to supply the wants of the vessel, personally ibr 
 
 ' 1 • 1 1 1 J ffoocls sold 
 
 as he would have been to a thnd person who had abroad for the 
 advanced the money upon the owner's personal ^^^^f^ °^ ^^^"^ 
 credit. Mr Justice Bayleij declares this explicitly 
 to be his opinion ; and Lord Ellenhorovgh compares 
 the transaction to a forced loan^ and not to a forced 
 hotiomry. — I have observed before, that it may be 
 considered Avith equal propriety either as the one or 
 the other ; that it must necessarily be looked upon 
 as a forced bottomry loan upon ship and freight, in 
 those countries only where the owner, by abandon- 
 ing ship and freight, may release himself from all 
 obligation ; and that this mode of treating the sub- 
 ject tends to simplify the transaction, and to prevent 
 injury, wherever the assured proprietor of the goods 
 sold is entitled to restitution by his contract of in- „ g^^ ^^^^^^ 
 surance." p- 1*^4. 
 
 But, from the above decision, it is by no means to it follows not 
 be concluded, that in this country the ship-owner ers arrii^bTe^" 
 alone should remain responsible to the proprietor of also for goods 
 goods sold, and that the latter should be prevented general inter- 
 from seekino; redress also from the other proprietors est of ship and 
 of the cargo, whenever the sale was effected to sup- 
 ply the joint wants of ship and cargo. In the above 
 case the goods were sold merely to raise funds for 
 repairing the vessel, which was a duty incumbent 
 U|)on the ship-owner alone. But it cannot be said 
 that it is the duty of the ship-owner also to supply 
 the money requisite for the cargo. 
 
 Goods were shipped in May 1807, from Hull to Dobson v. 
 ^t Petershurgh. — The ship, liaving met with very S,',''pi"' Jgo. 
 tempestuous weather on her voyage, was obliged to
 
 192 Of Average. — Beiiecke. 
 
 put into Copenhagen, there to unload and to repair, 
 the expenses of which repair, as well as the Sound 
 dues, w ere paid by the owner's agent at Copenha- 
 * gen. When the ship was ready to proceed on her 
 voyage, the English expedition against Copenhagen 
 came in sight, whereupon she was seized by the 
 Danish government, and the captain and crew were 
 made prisoners of war. On the 9th of September 
 they were released, and had the ship delivered up to 
 them, in consequence of the surrender of Copen- 
 hagen to the British forces. It being impossible to 
 negotiate bills on England for the purpose of re- 
 paying to the agent the sums he had disbursed for 
 the ship's use, the agent caused the captain to be 
 arrested, by process from the maritime court of jus- 
 tice, at Copenhagen. In this situation the captain, 
 to obtain his liberation, and in order to prosecute his 
 voyage, sold the above goods. On the 20th of Oc- 
 tober, he was again ready to proceed on his voyage ; 
 but a war with Russia being apprehended, he was 
 ordered by Admiral Gambler to return home. The 
 ship arrived safe at Hull., where the remainder of 
 the cargo was delivered to the proprietors : where- 
 upon the proprietors of the goods sold brought an 
 action for general average against the shipper of the 
 principal part of the cargo. — Lord Ellenhorough 
 was inclined to think that such an action of one ship- 
 per against another, for general average, might be 
 maintained. But his Lordship being of opinion, that 
 in this case no general average could be claimed, the 
 process of the court of justice at Copenhagen not 
 having been directed against the ship, but being 
 confined entirely to the person of the master, and 
 a mere arrest for a personal debt, tlie plaintiffs were 
 nonsuited. — ' Had the ship been seized,' said Lord 
 Ellenhorough, ' for non-payment of the Sound dues, 
 I should have thought that the sale of a part of the 
 cargo to pay them, in the absence of all other means
 
 Money raised abroad. 193 
 
 to raise money for that purpose, might have been 
 the foundation of a claim for general average. But 
 these dues had been paid by the ship's agent, and 
 the money so paid merely constituted a private debt 
 due to him. — I do not think that any part of the 
 })laintiff's goods was sacrificed for the safety of the 
 ship and the residue of the cargo, in such a manner 
 as to give them a right to a contribution from the 
 other shippers of goods on board ; their proper reme- 
 dy is against the owner of the ship.' 
 
 If the sale of goods, therefore, be effected, for in what cases 
 reasons which constitute a general average, it can- for'^'J,oda"soM 
 not be doubted that a general contribution must take takes place af- 
 place, whether the ship and cargo reach their des- Jig v*esseL " 
 tination, or be lost. 
 
 If the cause of the sale be a mixed one, that part 
 will be made good by general average contribution 
 which was applied to disbursements of that kind, 
 and the owners will be personally liable for the re- 
 mainder. 
 
 The British ship-owner being obliged to pay the Precaution to 
 value of the goods sold, even after a loss of the ship!owners. 
 vessel, will do well to secure himself by an insurance 
 on money expended, &c. The proprietor of the 
 goods sold may be also under a necessity of resorting 
 to the same measure of precaution, should he have 
 reason to doubt the owner's solvency in case of ac- 
 cident. He will be obliged, however, to use pre- 
 caution, lest his insurance be considered as a double 
 one, or as one without interest. 
 
 The goods sold must be replaced, as before stated, To whom the 
 
 •,." ,. , ^,, n 1 • pronts on the 
 
 accordnig to then- net value at tlie place oi destma- sold goods be- 
 tion. Should they happen to be sold at higher rates, '•'"S- 
 it is reasonable that those who have to bear the loss 
 in one case, should receive the benefit in the other. 
 The sale was effected on their account, and not on 
 that of the merchant to whom they belonged. This 
 25
 
 194 Of Average. — Benecke. 
 
 point, however, has never been legally decided. — 
 Richardson v. In a late case, where goods were necessarily sold at 
 new"^*^*, Aid!^ ^^^ intermediate port, and where the arbitrators, to 
 237. whom the question had been referred, determined 
 
 that the owners of the goods which had yielded 
 higher proceeds than they would have done at the 
 place of their destination, were entitled to credit. for 
 the full amount of the sum which the goods pro- 
 duced : the court of King's Bench agreed, that the 
 arbitrators could not be said to have decided con- 
 trary to any clear, well-established, principle of the 
 law. — Lord Chief Justice Abbott said : ' I cannot 
 say that their decision was wrong ; for by holding 
 that the owner of a ship may lose, but that he can 
 never gain by such a sale as this, we shall furnish 
 the strongest possible inducement to him to take 
 care that all the goods are conveyed to their place 
 of destination.' And Mr Justice Holroijd, ' There 
 is strong ground for contending that the owner of 
 goods should receive a compensation for the goods 
 sold, according to their highest value. If the mas- 
 ter could get money by other means, he had no right 
 to sell ; and if he had sold the goods, the owner 
 ought to be entitled to the actual proceeds, for the 
 ship-owner, in the event that has happened, ought 
 not to be allowed to make any profit by such 
 sale.' (a) (1) 
 
 («) Mr Stevens is of opinion that in case goods are sold -to 
 raise funds for purposes of general average, at a higher price 
 than their marked value, at the port of destination, they are 
 to be contributed for at the latter value. 
 
 There is a diversity of opinion on this question among prac- 
 tical underwriters in the United States, where no adjudication 
 has as yet been had upon the point. See above, p, 72, n. — Ed. 
 
 (1) Mr Stevens, in his Essay, 4tli ed. p. 22, observes upon 
 this occasion, that the owner of the ship cannot appropriate 
 the profit to Jiimself, because this would be deducted from the 
 average charges. This applies to general average, and to ex- 
 penses which are at the charge of the underwriter, but not to
 
 Money raised abroad. 195 
 
 It now remains to consider the different conse- Relations and 
 quences which may arise from a valid lujpotheculion al'shf^'from a 
 of ship and cargo. justifiable bot- 
 
 In the event of the ship and cargo being totally shi'p'^andTar"" 
 lost after an hypothecation, the loss of the money ff», if **!'>? 
 
 1 1 '"i^ii 111 irii '^"'1 cargo be 
 
 advanced entn-ely tails upon the lender, it the loan totally lost. 
 was made for necessaries of the ship only, the mer- 
 chant has no claim upon the owner, since he has lost 
 nothing by the hypothecation, but what would have 
 been lost without it ; and the underwriters in Eng- 
 land, as well as in every other country, are liable to 
 pay a total loss, the goods having been on board at 
 the time of the accident. If the loan was for ex- 
 • penses of recapture, or any other disbursements for 
 the benefit of ship and cargo, which would have 
 constituted a general average, no contribution takes 
 place, as the whole now falls upon the lender ; and 
 the parties interested, or their underwriters, are 
 gainers by the bottomry transaction. 
 
 By the same rule, if the ship and cargo remain 
 safe, the marine interest must be borne in propor- 
 tionate shares, by all those who in case of loss would 
 have been benefited by the contract of bottomry. 
 For that part of the borrowed capital, therefore, 
 which belono;s to general average, the marine in- 
 terest must be charged to general average, &c, &c. 
 
 No difficulty will arise if the ship and the goods if they re- 
 of each individual owner be of sufficient value to pay orin'pl°rt%nd 
 the respective share of each party in the bottomry a. the proper- 
 
 11^ X ./ -^ ty of each in- 
 
 Qebt. dividual is 
 
 sufficient for 
 
 such expenses as are to be borne by the ship-owner himself, ^f his share. 
 Nevertheless, a sale of goods being never admitted, except 
 when the absolute necessity of it can be clearly shown; I can 
 hardly imagine that the sale of goods by the master at an in- 
 termediate ])ort with a view of iDenelitiiig the owners of the 
 ship, could ever be attempted with any probability of success. 
 How can the master know what will be tlie value of such 
 goods at the port of destination, at the time of the ves.sel's 
 arrival ?
 
 196 Of Average. — Benecke. 
 
 B. When this But if the contiaiy takes place, it is to be distin- 
 anT ^^°'^^*'' guislied, whether the hypothecation ^vas resorted to 
 
 for the ship-owner's benefit alone, or for the benefit 
 
 of all parties concerned. 
 
 I. The money In the first casc, iustice requires that the ship- 
 
 nas been bor- ^ ' o v ^ x 
 
 rowed for the owncr alone should bear the expense and risk at- 
 BiUp ovvnlr*^^ tending the hypothecation. Suppose, for instance, 
 a ship after a heavy damage at sea, to have been re- 
 fitted in a port to which she had resorted for shelter, 
 although the cargo might have been forw arded with- 
 out loss to its place of destination by other vessels. 
 Under these circumstances the owner of the cargo 
 was not only not benefited by the reparation of the 
 vessel, but was even a loser, through protraction of 
 the voyage, perhaps also through internal deteriora- 
 tion of the goods, and a fall of the market. Though 
 the merchant must submit to this, because the mas- 
 ter is not obliged to tranship, but is authorized to 
 repair the vessel, whenever he finds it for his owners' 
 P See the case interest;'' yet it cannot with justice be demanded 
 itudine, that the merchant should purchase this disadvantage 
 
 above, 176. }^y ^n additional risk. It is quite sufficient that the 
 master or owner should be at liberty to make use, 
 at his own peril, of the property of a third person, by 
 negotiating a loan upon the same. If the ship, 
 therefore, be totally or partly lost in the prosecu- 
 tion of her voyage, and the lender on bottomry re- 
 pay himself out of the proceeds of the cargo ; or if 
 the amount of the ship and freight after arrival be 
 insufficient for the payment of the bond, the na- 
 ture of the subject requires that the ship-owner 
 should completely indemnify the owner of the cargo. 
 In cases of stranding, therefore, the ship-owner must 
 make good to the owner of goods seized by the 
 lender on bottomry, the sum which would have been 
 due to him, after deducting salvage and other charges, 
 if no contract of bottomry had taken place ; and if
 
 ' , Money raised abroad. 197 
 
 ship and freight upon arrival at the port of destina- 
 tion be insufficient to pay the bottomry debt, the 
 ship-owner must supply the deficiency out of his pri- 
 vate means. 
 
 That such would be the mode of proceeding in 
 this country, and that the ship-owner could not be 
 exempted from paying the bottomry bond in full, 
 admits of no doubt according to what has been men- 
 tioned concerning loans upon the credit of the ship- 
 owners, and sales of goods for their benefit. Nor 
 do I question but in Hamburgh, or at any other 
 place where the ship-owner cannot elude the en- 
 gagements into which the master has entered for 
 him, by abandoning ship and freight, the case would 
 be decided in the same manner. For the law which 
 relieves the ship-owner from restoring goods sold, 
 cannot be applied to this case, unless by a most 
 arbitrary construction. The French and Dutch ship- 
 owners, on the contrary, if the 216th article of the 
 Code be taken literally, will not be obliged to pay 
 beyond the value of ship and freight. 
 
 It appears to be a hardship that the owner, in 
 cases of this description, should lose the second 
 object of a bottomry contract, that of not risking 
 more than his original capital : but yet it is perfectly 
 consistent with the nature of the subject, that if any 
 one must suffer, it ought to be the person for whose 
 benefit the measure was intended, and not a third 
 person, who could in no way derive advantage 
 from it. 
 
 But if the ship-owner be unable to pay the surplus 
 of the bottomry debt beyond the value of ship and 
 freight, or if, by the laws of his country, he cannot be 
 obliged to it, and the lender have indemnified himself 
 by selling the goods of any one of the owners of the 
 cargo, at. the place where the vessel became unfit to 
 proceed on her voyage, leaving the property of the 
 others free : then it seems that the loss must be
 
 1 98 Of Average. — Benecke. 
 
 q Compare bome bj the party upon whom it accidentally falls :'' 
 wit^on ^ for there existed among the owners no connection or 
 above, p. 191. partnership, which should implicate the one in the 
 losses of the other. Those ^^hose property is lost 
 in this manner, like the proprietors of goods sold, 
 will have a claim upon the ship-owner ; and if this 
 cannot be enforced, the loss necessarily falls upon 
 themselves. — But when the whole cargo has been 
 sold, and the difference paid out of the proceeds, or 
 when the ship and cargo arrive at the place of desti- 
 nation, the loss thus occasioned must be borne by 
 all the owners, in proportion to the net value of the 
 goods of each. 
 
 A loss of this kind would not be recoverable 
 against the British underwriters upon goods, for the 
 same reasons which exempt them from paying a loss 
 occasioned by a sale of the goods in an intermediate 
 port. The cause of the loss in both cases is the 
 same, namely, the want of funds for the use of the 
 vessel, which does not concern the underwriters upon 
 the cargo. (1) But the same reasons, I conceive, 
 do not apply to an insurance upon the ship, as far as 
 the money was required for repairing a damage to 
 the vessel, for which the underwriters were liable. 
 The money, as far as applied to this purpose was 
 expended for them, and to their advantage : for it is 
 
 (1) The opinion of an eminent counsel, in the case of a 
 , Dutch ship, Avas expressed to the same purpose. — The mas- 
 ter, on liis voyage from PUlaii to Amsterdam, had been under 
 the necessity of puttinsf into Copenhagen to repair the vessel ; 
 for the amount of wliich repairs he was obliged to hypothe- 
 cate the ship, freight, and cargo. The value of ship and 
 freight not being found sufficient, after her arrival at Amster- 
 dam, to discharge the bottomry bond, the consignees of the 
 cargo were compelled to make up the deficiency, which they 
 sought to recover from their underwriters in London. The 
 learned counsel, who was consulted upon this occasion, thought 
 the underwriters not liable, and founded his opinion upon the 
 case of PoiDcll v. Gudgeon.
 
 Money raised abroad. 199 
 
 their duty to pay for tlie repairs at the place where 
 they became necessary, ^vhich is fully acknowledged 
 by the practice of charging them with the expenses 
 incurred by raising money for that purpose ; and in 
 case of a total loss, they would have been relieved 
 by the bottomry contract from paying the repairs : 
 they are, therefore, injustice, bound to bear also the 
 loss arising from the hy])othecation of ship and cargo : 
 provided always, that the master, unde'r all the circum- 
 stances, was warranted in adopting that measure. 
 This equally applies to a sale effected abroad for the 
 same purpose. 
 
 In Hamburgh, and every where upon the continent, 
 the underwriter upon the cargo would be obliged 
 to bear the loss which the owner of the same might 
 sustain in consequence of the hypothecation of ship 
 and cargo, in case the ship-owners were unable to 
 pay, &c, such hypothecation being considered as a 
 peril of the sea, within the policy. 
 
 But if, secondly, the money raised by the hypo- 2. when the 
 thecation of ship and cargo was applied to expenses SeerbolTowed 
 of the nature of a general average, it appears cer- for the benefit 
 tain that the ship-owner cannot be made answerable cemed.°" 
 for the prejudicial consequences which any individual 
 party may eventually sustain from that measure. 
 For the master in such a case is to be considered as 
 the agent, not merely of the ship-owner, but of all 
 parties concerned ; for which reason all the argu- 
 ments urged above, (see page 183), upon the sub- 
 ject of a sale for such purposes, are applicable also 
 to this case. 
 
 If every separate interest could not be sepa- 
 rately hypothecated, but the loan was contracted 
 upon the ship and cargo as an indivisible whole, 
 it appears to me (in the absence of legal au- 
 thority) most reasonable and natural, that the loss 
 which an individual may sustain from such hypothe- 
 cation, should be jointly borne by all, because the
 
 200 Of Average. — Benecke. 
 
 measure had been adopted for the general benefit, 
 and all the advantages or disadvantages of it might 
 as well liave fallen upon one party as the other : 
 yet none should be liable beyond the amount of the 
 property saved for him ; for by paying marine in- 
 terest, he is entitled to demand, that nothing be- 
 sides his original capital shall be exposed to risk. 
 If, therefore, tiie vessel becomes unseaworthy upon 
 the continuation of her voyage, and the lender on 
 bottomry pays himself out of the goods of any one 
 of the owners, I am of opinion, that after each 
 owner has paid his original share of the debt, as far 
 as the property saved for him is sufficient for this 
 purpose, the deficiency ought to be made good by 
 contribution among those of the proprietors who 
 have any surplus saved. This will be made clearer 
 by an example. 
 
 Suppose a ship and her cargo to have been hy- 
 pothecated in a foreign port (with benefit of salvage 
 to the lender) for disbursements of the nature of a 
 general average, to which each party has to contri- 
 bute 40 per cent upon the original value, including 
 marine interest, — namely, 
 
 the owner for ship and freight on £3,000 £1,200 
 A. for goods, 6,000 2,400 
 
 i?. for ditto, 4,000 1,600 
 
 £13,000 £5,200 
 The vessel having become unseaworthy in the prose- 
 cution of her voyage, the wreck and part of the 
 freight saved, produced together, £1,000 
 
 The goods of A. saved, produced, 4,200 
 
 Those of B., 3,000 
 
 It ought to make no difference here, whether the 
 goods of A. alone, or those of B. also, be sold to 
 discharge the bottomry bond. 
 
 The ship-owner, instead of £1,200 originally due 
 by him, now pays, £1,000
 
 Money raised abroad. 201 
 
 Brought forward, £1,000 
 
 A. his original share, 2,400 
 
 B., 1,600 
 
 And the deficiency of £200 is to be made 
 good by A. and B. in the following pro- 
 portions : — 
 £4,200 are saved for A. ; of which 
 2,400 being deducted, 
 
 £1,800 remain. 
 
 £3,000 are saved for B. ; of which 
 1,600 deducted, 
 
 £1,400 remain. 
 
 J. has, therefore, to pay 3,200: 1,800,=200: 112 10 
 B., 3,200: 1,400, =200: 87 10 
 
 £5,200 
 
 Thus the hypothecation in one sum is made to cor- 
 respond as nearly as possible with the hypothecation 
 of each separate interest, which must certainly be 
 the most correct method ; the object of a joint hy- 
 pothecation being, that each party should pay for 
 himself, yet no one lose more than his original capi- 
 tal. (1) 
 
 Had the goods of B. been totally lost, A. would 
 have had no claim against him. — The eventual in- 
 jury to which an individual is thus exposed by the 
 hypothecation of ship and cargo, makes it evident 
 
 (1) It may also be said in favour of this arrangement, that 
 it leaves each party independent of the solvency of the other, 
 and of the various laws in different countries. Of what ad- 
 vantage would it be to the owners of the cargo in the above 
 instance, to have a personal claim upon the ship-owner on 
 account of the deficiency of 200/, if the latter reside in a 
 country where he can elude all claims by an abandonment of 
 ship and freight, or if he have become insolvent 1 
 
 26
 
 202 Of Average. — Benecke. 
 
 that only in cases of real necessity should this mea- 
 sure be resorted to. — When a vessel, therefore, re- 
 turns to her port of departure, or to one in its neigh- 
 bourhood, for the purpose of being repaired, it is 
 advisable that the ship-owner, instead of hypothe- 
 cating the ship and cargo, should provide the neces- 
 sary funds, and recover from each owner his share, 
 or take a guarantee for the same. If this cannot be 
 accomplished, the ship-owner may insure his dis- 
 bursements as money expended, &c, valuing each 
 interest separately ; by which means, if the vessel 
 be lost, the owner is secured, yet no one can lose 
 more than his original capital. Every proprietor is 
 undoubtedly obliged to bear his proportion of the 
 premium of such an insurance, and of the interest 
 of the capital advanced ; but he cannot be obliged 
 to pay the marine interest of a bottomry bond, by 
 which those objects cannot, under all circumstances, 
 be completely obtained, and which might have been 
 avoided. — If, however, the ship-owner has no other 
 means of providing money than hypothecation, he is 
 certainly authorized to have recourse to it, and the 
 owners of the cargo must submit to the measure. 
 Those who maintain the contrary, mistake the rule 
 laid down by the laws of most countries, by which 
 the master (but not the owner) is restrained from 
 borrowing on bottomry at the owner's place of resi- 
 dence. 
 
 In adjusting average losses, it is therefore requi- 
 site to examine, whether hypothecation, in cases of 
 this description, was necessary ; and more parti- 
 cularly still, whether it was bond fide made, or 
 colourably insisted on by the owner for fraudulent 
 purposes. 
 
 When the ship and cargo are hypothecated, partly 
 on account of necessaries of the ship, and partly on 
 account of general average, the former part should 
 be distinguished from the latter, and each separately 
 regulated according to the rules given above.
 
 Money raised abroad. 203 
 
 111 deciding the question : Whether British un- Liability of 
 derwriters ought to take ujion themselves the con- ""^erwnters. 
 sequences of the hypothecation of ship and cargo, 
 for expenses belonging to a general average, re- 
 ference should be had to what has before been men- 
 tioned concerning their obligations. It might be 
 argued in favour of the underwriters, that they have 
 as little concern with the funds provided for an- 
 other party interested in the cargo, as with those 
 raised on account of the necessaries of the ship. 
 But yet the funds provided for the property insured 
 by them, are undoubtedly a concern of theirs ; and 
 as these could not be furnished by any other means 
 than the hypothecation of ship and cargo ; as a 
 complete reciprocity subsists between all parties con- 
 cerned, each acting for the others ; as the under- 
 writers, according to common usage, are charged with 
 their share of the marine interest when the vessel ar- 
 rives ; and as they enjoy all the eventual advantages 
 of the hypothecation : it would, in my opinion, be 
 most unreasonable that they should be authorized to 
 throw the loss eventually incurred by the transac- 
 tion upon the assured. 
 
 When a master hypothecates the ship alone for Hypotheca- 
 necessaries of the ship and cargo jointly, it can ad- sS°iJ afo^ne for 
 mit of no doubt that the owners of the cargo are the benefit of 
 bound, after a safe arrival, to contribute their respec- ^ ^^^ ^^^' 
 live proportions towards the marine interest, and 
 also that in the event of the vessel being totally lost, 
 the ship-owner, who loses nothing but what he 
 would have lost if no hypothecation had taken place, 
 can have no claim upon them. But should the car- 
 go be lost, and the ship remain safe, (a case which 
 can hardly occur, except when, after a capture, the 
 cargo is condemned, and the ship restored,) it ap- 
 pears just that the ship-owner should not be a loser 
 iDy a measure taken for the interest of the owners of 
 the cargo, and from which he could not possibly
 
 204 Of Average. — Benecke. 
 
 have derived any advantage. The owners of the 
 cargo should, therefore, pay to him their respective 
 shares of the sum hypothecated, that is to say, the 
 general average due by them, in the same manner 
 as if the money had been raised upon the owner's 
 personal credit.
 
 CHAPTER VI. — Adjustment of General 
 Average. 
 
 [Stevens. Part I. Chap. 1. Section 2.] 
 
 Entitled ' Of the Apportionmetit of General Average.^ 
 
 Having thus treated as fully as the nature of this 
 Essay will admit, of the subject-matter for general 
 average contribution, I proceed to make a few re- 
 marks on the Contributory Interest, — the Valuation 
 of the same, — and the Apportionment of the Loss. 
 
 A learned and very useful writer says,"" ' there is ^^ Abbott, p. 
 no principle of maritime law that has been follow- "'' '^ ' ^ 
 ed by more variations in practice than this ;' and 
 that ' the determinations of English courts of justice 
 furnish less of authority on this subject than on any 
 other branch of maritime law.' (1) As the law, 
 therefore, does not guide us in these cases, it is 
 essentially necessary that some general principles 
 should be laid down, and be acted ^ipon by persons 
 so much interested in the result as the subscribers to 
 Lloyd's. 
 
 That the ship itself, and the cargo on board, (if 
 of any value) should contribute, ■" appears to be in- t Leg. Rhod. 
 disputable (2) ; but the cases in which the freight Emengon, 
 
 c. 12, §43. 
 
 (1) Sir William Scott says, ' The law of cases of necessity l p. o' § \^ 
 is not likely to be well furnished with precise rules ; necessity art. 3. 
 creates the law, it supersedes rules ; and whatever is reasona- 
 ble and just in such cases is likewise legal. It is not to be ' 
 considered as matter of suprise, therefore, if much instituted 
 
 rule is not to be found on such subjects.' "^ 
 
 (2) In the case of ships taken up by the East India Com- '^ 3Rob. Adni 
 pany there is an exception to this general rule- — For accord- P' P— **• 
 ing to the terms of the charter-party, the cargo belonging to
 
 206 Of General Average. — Stevens. 
 
 should be brought into contribution, are not so well 
 d ut. inf. Art. kuown nor so satisfactorily settled.'* 
 
 Article 1 . Of the Cargo. 
 
 Goods not It is the general rule, that ' what pays no freight 
 
 freighf. P^js no average ;® — and therefore wearing apparel, 
 
 el Mag. jewels, passengers' property, (1) seamen's wages, 
 
 p. C2. ^^ ^Q jjQ^ contribute to general average. '^ But it is 
 
 f Ord. Ant- ^„' i • , ^ v ^ V r n 
 
 werp. Moi- saicl, spccic must pay average accordmg to its lull 
 loy, Dejure yaluc, in the samc manner as other merchandize,^ 
 § 4. Wes'kett, and there is no doubt of the propriety of this when 
 Stlup ^'"^'^' specie is laden on board on freight, — but otherwise 
 g Moiioy, ib. there is no authority for money paying average. 
 This is by the old writers left amongst the unsettled 
 questions, and is to be determined according to them, 
 by the judgment of persons acquainted with these 
 h Q. V. Weyt. affairs.'' The above rule, however, that ' what pays 
 Ord. wisb. i^o freight pays no average,' should not be construed 
 stracc de literally, for it would be very unjust that the master, 
 Nav. n. 25. or owucr, or any other person who had goods on 
 ^Aie^^m^l ^oard, should not contribute, merely because he paid 
 1. 2. "^ no freight for the carriage of them. All the goods 
 
 i Leg. Rhod. on board ought to contribute,' — and the goods are, — 
 
 art 252i 
 
 iMag.p. G2. * the wares, or jcargo for sale laden on board the 
 1 ^51"°°"' ship,"' whether it pay freight or not. 
 Abbott, p. iii, Some of the foreign ordinances say, speaking of 
 c. 8, § 14. jettison, (which as before remarked is the best illus- 
 
 k Lord Ellen- ^ 
 
 borough, 
 
 8 East's Rep. the company is not liable to contribute to general average. It 
 p. 37o. is customary to provide for this in policies on ship, and freight, 
 
 Jettison be- and private trade. In a late case, however, it appeared that 
 half^ni^^'^'^ the company, acting with that principle which always charac- 
 voyage is terizes British merchants, did think themselves liable, though 
 completed. they were perhaps not strictly bound, to contribute their pro- 
 portion (in common with the ship, freight, and pi'ivate trade) 
 towards the loss of their cargo which was jettisoned. 
 
 (1) The ordinance of France in conformity to the Di- 
 1 Leg. Rhod. gest,^ makes the passengers contribute for their property, 
 utsup. jesvels, &c. 
 
 Poth. Contr. *• 
 deLoii.n.l25
 
 Adjustment of General Average. 207 
 
 tration of general average loss,) if the loss occur 
 before half the voyage be performed, the goods shall 
 be valued at the invoice cost; — \{ after, at the net 
 proceeds on arrival.™ And this it is said was for- m consoi. del 
 merly the custom in England." This principle is ^^^J- ^J[^^^ 
 derived from the Rhodian law; which ordained that i.4, c.i7. 
 the goods jettisoned should be reckoned at the first ^.117° *' 
 cost — and those which were saved at the market |tock, art. v, 
 price on arrival." The ordinance of Hamburgh,P (of co^pen. art. xi. 
 1731) differs from all others; it states, the goods " Maiyne, c. 
 saved and lost shall be estimated according to the j^yre^iaS.?, 
 invoice with all charges, except premium of insur- <• 2, §6. 
 ance. Thus making no distinction between half the tit. 2l°° ' 
 voyage being performed — or the average happening o Leg. Rhod. 
 at the commencement of it — but in all cases regu- '^'^^ .^' ^ ^ 
 lating the sum to contribute, and that to be paid in art.'sy^^' 
 restitution, at the invoice cost. 
 
 Every nautical man is aware of the difficulty, and 
 of the impossibility in some cases, of determining 
 with precision where the one half of the voyage 
 ends, and consequently, where the other half be- 
 gins ; — this must therefore have been a prolific 
 source of dispute and litigation. The authority 
 which we have for this doctrine, leads us to en- 
 deavour to discover how it originated ; — and this, 
 it is imagined, may have been in the apparent 
 impropriety of making every case subservient to the 
 general rule, of valuing the jettison, and the cargo 
 for contribution either at the invoice cost, or at the 
 market price at the port of discharge. (1) 
 
 But perhaps it might not have been intended that jettison at 
 
 commeiice- 
 / » \ T 1 1 • • I nient of 
 
 (1) It has been contended^ in case of jMison, that the voyage. 
 goods saved ought to contribute according- to their weight q Kaimes' Pr. 
 instead of their vahie. But this is founded on the assumption Eq. b. 1. p. 1, 
 that the losing party is entitled to a recompense, — when in fact c. 3, § 2. 
 he only claims restitution, as far as his loss has been converted 
 to another's gain/ For contribution is made not on account r Millar's EI. 
 of incumbrance to the .shij), but of safety obtained.' p. 345. 
 
 » Abbott, p. 
 
 iii, c. 8, § 14.
 
 208 
 
 Of General Average. — Stevens. 
 
 Value at port 
 of discharge is 
 the basis. 
 
 t Leg. Wish, 
 art. 3'J. 
 Ord. Ph. ii, 
 art. G, tit. 
 ' des dom. d. 
 Vas.' 
 Old Stat. 
 Hamb. p. ii, 
 tit. -xvi, art. 2. 
 Ord. France, 
 ' du jet.' art. 
 vi. Ord. 
 Koniffs. n. 37. 
 Q. v.^Weyt. 
 p. 12. Ma- 
 lyne, c. 25. 
 2 Val. Com. 
 297 Emer. 
 xii. § 43. 
 Poth. n. 121. 
 123. 128. 
 " Leg. Rh. 1. 
 2, § 2. 4. 
 Q. V. Weyt. 
 p. 27. 
 Val. Com. 
 
 this rule should be acted upon strictly ; and the spirit 
 of it may be reconciled even with the practice of the 
 present day, if we substitute the commencement of 
 the voyage for the first half. Thus, let us put the 
 case of a ship bound from London to the West Indies, 
 which incurs a general average loss, by cutting from 
 her anchors in the Downs, and is afterwards carried 
 into Ramsgate in distress ; — here the cost of the 
 anchors and cables, the salvage charges, &c, are the 
 subject of a general contribution, and the average is 
 settled (or ought to be settled) in London. In this 
 case, the value of the cargo for contribution is, the 
 cost of the goods on board, (without insurance) i. e. 
 the amount of the tradesmen's bills and the shipping 
 charges, which is the value at risk, — because in case 
 of jettison the goods might have been replaced at 
 that sum. 
 
 When the average is adjusted at the port of dis- 
 charge, the universal practice now is, to take the 
 actual value of the cargo at the market price, strip- 
 ped of all the charges attaching to it, — as freight, 
 duty and landing charges ;*(!) — and if a jettison 
 has taken place, then the estimated net proceeds of 
 the goods jettisoned, taken in the like manner, should 
 be added to the net value of the cargo saved." — 
 For equity requires, that the party whose loss has 
 procured the arrival of the ship, should be put in the 
 same situation with those whose property has arriv- 
 ed ; — and which can only be done by considering 
 
 (1) The value to contribute, is the net value to the con- 
 signee lolien he gets the goods into his possession ; — therefore 
 the charges are only the freight duty and landing charges: — 
 Not the insurance, for tliat is a charge of the shipper or seller 
 at the commencement of the voyage, and is also optional; — 
 nor the commission, for that is incurred after the landing and 
 sale of the goods ; and a sale is not essentially necessary in 
 this case. No man can oblige another to dispose of his pro- 
 perty, merely because a general average has been incurred.
 
 Adjiistment of General Average. 209 
 
 his goods to have arrived also/ If the goods saved ut sup. 
 be damaged by some accident after the jettison, they JJo°Ju?.^Ho11 
 must be taken at their deteriorated value ; for the c. 29. Pec. 
 value of what arrives is the value of what is saved : n. mif ' 
 but if goods be damaged by the jettison, they must ^'''^p^*'"-^^^- 
 be taken at their value as if sound, because the dam- Poth. utsup. 
 age should be made jzood to the merchant by contri- Magens,p.G9. 
 
 DUtlOn. sup. Abbott, 
 
 It was the custom in France, according to the p- "^i- c. 8, 
 ordinance," to survey the goods saved of the same ^ p^^j^ ^ ^^ 
 quality as those jettisoned, and to produce the bills l. n. 132; & 
 of lading and invoices of the whole, to show that p| oV'no^'ii. 
 the sum to contribute was not undervalued, — and >f Ord. Fr. 
 that the sum to be paid in restitution, was not ^'''^ *^ 
 greater than the loss/ y Poth. utsup. 
 
 If the cargo produce nothing, or if the charges be if proceeds of 
 greater than the gross produce, — then it should con- pajfexpensea. 
 tribute nothing, — as a person is required to pay only 
 in proportion to the benefit received. — If the cargo 
 had not arrived the charges would not have been 
 incurred ; — but having arrived there are no pro- 
 ceeds, and therefore there was nothing at risk, as 
 regarded the merchant. It is on the same equitable 
 principle, that if goods be abandoned to those who 
 save them, there can be no claim for salvage ; for 
 salvage can never exceed the benefit procured by it.^ '^ Kaimea* Pr. 
 
 The most unexceptionable mode of settlement, as c.*8,^§'5.' 
 being the least likely to create dispute, is to adjust Adjustment, 
 the average claim after the ship has arrived at her ^^|^^^^ '° ^^ 
 port of discharge ; the next best mode is, to settle it 
 at the port of loading ; an adjustment at an interme- 
 diate port ought always to be avoided. By an inter- 
 mediate port is meant, any foreign port where the 
 ship may put in in distress. 
 
 If the ship be lost short of her port of destination. Freight pro 
 and the cargo be saved and sent on, — then the ^ui's''''"^"' 
 freight (which is in the cargo) must contribute its a Pr. ]>,. 
 proportion to the charges of salvage.'' ^ '> p i- 
 
 27 ' art^y-
 
 210 
 
 Of General Average. — Stevens. 
 
 Goods on 
 deck. 
 
 Freight 
 advanced. 
 
 Whether the 
 master may 
 detain the 
 cargo until 
 the average is 
 settled, 
 b Con. d. L. 
 p. ii, § 1, 
 art. 4, n. 134. 
 
 c Ord. France, 
 tit. ' Du Jet.' 
 art. 21. 
 
 Average bond. 
 
 It has been already observed, that it is only the pro- 
 prietors of the cargo under the deck, who can demand 
 contribution in case of jettison ; but the value of the 
 goods on the deck must, according to equity, be 
 brought into the apportionment, if saved. It is very 
 improbable however that these goods would be saved 
 if any part of the cargo was jettisoned. 
 
 When the average is adjusted at the port of load- 
 ing, and the freight has been paid there, the practice 
 is, to add it to the value of the cargo ; in the same 
 manner as any other charge incurred on the goods 
 before putting them on board the ship. For the 
 merchant has then an interest in the freight, by its 
 being converted into a charge on his goods, (a) 
 
 It is often asked whether the master can refuse 
 to deliver the goods to the merchant until he is satis- 
 fied for the general average. This is so well an- 
 swered by Pothier,'' that I cannot do better than 
 quote his words — ' Goods cannot be retained on 
 board for freight, and contribution ought not to have 
 a greater privilege than freight. But though the 
 master cannot retain the goods, he may seize them 
 on the quay until security is given." Nevertheless 
 it is customary if the merchant be in good credit to 
 deliver the goods, — and this being the custom, the 
 master is not liable for his insolvency.' This is also 
 the custom with us ; but the master may if he 
 choose, insist upon the consignees entering into an 
 average bond. Such an instrument is however of 
 little use, (unless the names of arbitrators be insert- 
 ed,) for the consignees by this measure only bind 
 themselves to pay what they are bound by law to 
 pay without it. 
 
 (a) Mr Stevens here supposes the case of the freight being 
 unconditionally paid in advance, and not to he recovered hack 
 tliough the ship should he prevented by perils of the seas from 
 performing the voyage. See note to Benecke below on this 
 subject. Ed.
 
 Adjustment of General Average. 211 
 
 Article 2. Of the Ship. 
 
 What the value of the ship is that should contri- 
 bute to make good a general average loss, demands 
 a little consideration. Some foreign laws and ordi- 
 nances direct that the ship shall contribute for half 
 her value ;'' — others that it shall be her full value d Con. del 
 vt^hich shall contribute ;° — others again, that the orciHorence. 
 owner of the ship shall contribute for her whole — Amster- 
 value, or her whole freight at the option of the pro- — France. 
 prietors of the cargo* — and this was the custom in Vide Potiuer, 
 Holland from time immemorial ;s — but the laws of art. 7. 
 Oleron'' give the option to the owner. The differ- !. Or<^„ 
 
 • II 1 1 J J- • -1 Phihp II. 
 
 ence m all these laws and ordmances is easily re- ord. Biiboa. 
 conciled, for they all proceed on the same grounds, Konr^a 
 viz. — the impossibility of employing a ship in any — Hamb. 
 voyage without wear and tear and a consumption of HHpo^^y^'^i 
 provisions and stores, and consequently losing part of f Leg. wisb. 
 the value that she had when she commenced the Ord. Antw. 
 
 Rott. 
 
 voyage." ^ ... gAd.Verwer, 
 
 Q. van Weytsen, who is alw^ays judicious, says, annot. p.iis. 
 after discussing the subject ; — ' nevertheless they ^ W- ^'^'• 
 ought in reason and justice to carry in common con- j j jyj^^ p 
 tribution the whole value of the vessel, as well as 58. 
 the entire freight which the master receives for the 
 vovaee."' This, which was his opinion in 1563, is t q. van 
 
 *U *• • T? 1 J Weyt. Tr. 
 
 now the practice in ±L,ngland. des Av. p. 31. 
 
 Whatever be the nature of the property at risk, it 
 is the value to the owner of it at the time it is saved 
 that should contribute, and not any former nor after 
 value, (a) If, for instance, goods were damaged be- 
 
 (a) There is a slight inaccuracy in the text here ; as ac- 
 cording to the rules universally practised upon, the value of 
 the ship, as well as of the cargo and freight, in contribution, 
 is estimated at the port where the contribution becomes abso- 
 lutely due ; that is to say, is not further subject to conditions 
 or contingencies ; and this is, in most instances, the port of
 
 212 
 
 Of General Average. — Stevens. 
 
 1 Weskett, 
 p. 131. 
 
 "> Marsh, 
 p. 545. 
 
 fore they were jettisoned, the proprietor ought not 
 to receive for them the value of sound goods ;' nor 
 ought he to be required to contribute for more than 
 their true vahie at the time they were saved. — So, 
 if a ship bound to London, after a long and boister- 
 ous passage arrive in the Downs in a very damaged 
 state, and should there cut from her anchors, and be 
 carried into Ramsgate in distress ; it is evident, that 
 her value must be considerably lessened, not only 
 by the fortuitous damage received and by the actual 
 sacrifice made, but also by the wear and tear of the 
 voyage ; — yet it is the custom that the value in the 
 policy, after deducting the amount of the partial loss, 
 is taken as the value for contribution ; (1) — or, 
 when that is done, then the value of the ship in her 
 damaged state is taken. For, it is said, ' the ship 
 is to be valued at the price she is worth on her arri- 
 val at her port of delivery.'" Neither of these modes 
 however appears to be satisfactory. — In respect to 
 the former; — when the average loss occurred, the 
 ship was not worth so much, (besides the partial 
 loss,) by the wear and tear of the voyage, as when 
 she set sail : and as to the latter mode, — it is ad- 
 
 delivery. Whether Mr Stevens intends to lay down tliis rule 
 or some other, seems to be doubtful from this and subsequent 
 parts of the present chapter ; he seems rather to lay down a 
 different rule. It is apprehended, however, that the rule may 
 be laid down as unquestionable, that the value at the time and 
 place of the contribution becoming absolutely due, is the true 
 value in contribution. — Ed. 
 
 (1) Magens says, 'the valuation put by a master or owner 
 of a ship in a policy regards only the insurers, and not any 
 other persons concerned, who (in case of general average) 
 ought always to make him contribute more or less according 
 to a just estimate.' But this must mean, — of the value that the 
 ship is to him. It is the custom of France to deduct the wear 
 and tear and particular average from the value of the ship 
 when she sailed, before the sum for contribution to general 
 average is ascertained ; but provisions and advances to the 
 crew are not, as with us, included in the value.
 
 Adjustment of General Average. 213 
 
 mitted on all hands, that the party whose property 
 
 has been sacrificed, and who is indemnified, should ' 
 
 contribute his proportion to make good the loss, — 
 
 the sacrifice having been proportionally beneficial to 
 
 him ; otherwise indeed, he would be the only person 
 
 who would not be a loser. On the first principle 
 
 the ship contributes too much ; — on the second too 
 
 little, (a) 
 
 The true value of the ship for contribution, is the True raiue of 
 amount that her hull, masts, yards, sails, rigging, confribut^n. 
 and stores would produce after the sacrifice is made, 
 — with the addition of the amount made good by 
 the general average contribution. 
 
 There is no general rule, however, that will serve Local and 
 for all cases of this nature : for even on the above ^^v^^^n 
 
 . ^ , causes enect- 
 
 prmciple, if the voyage end at a foreign port, or at ing the value. 
 a place where there is no demand for shipping ; or 
 on the contrary, where there is a very great demand ; 
 the value of the ship will be decreased or increased 
 by such adventitious circumstances, but which ought 
 to have no weight in an equitable apportionment. 
 That mode, in fact, appears to be the best which 
 
 (a) Mr Stevens's views as to the contributory value of the 
 ship, are not so practical or convenient of application, or so 
 consonant to the general practice as those of Mr Benecke, 
 who says in his chapter on this subject below, ' As no more 
 can be said to be saved for the owner of damaged goods than 
 they are worth in their damaged state after their arrival ; so 
 no more can be said to be saved for the ship-owner, than what 
 the ship is worth after deducting wear and tear and accidental 
 damage, whether this have happened before or after the acci- 
 dent which occasioned the general average.' As to the difler- 
 ent modes of estimation for coming at this value, there is 
 some variety. In Philadelphia, for instance, the practice 
 is to take four-fifths of the valuation in a valued policy, 
 or the value in an open policy ; unless a partial loss to the 
 amount of over one-fifth of such valuation or value has taken 
 place. But whatever mode of estimate or computation is 
 adopted, either by a general practice or in particular cases, 
 still the value at the port of delivery is the proper object 
 of the estimate, according to the rule laid down by Mr Be- 
 necke. — En.
 
 214 Of General Average. — Stevens. 
 
 approximates the nearest to the value of the ship 
 when she sailed, after deductino; the provisions and 
 stores expended, — the wear and tear of the voyage, 
 — and any partial loss by sea-damage incurred, up 
 to the time when the general average loss took 
 place (1) ; for that is her worth to the owner. And 
 
 (1) The following formula will illustrate the above princi- 
 ple of taking the value of the ship for contribution — ei. gr. 
 
 1. Value of the ship at the outset, .£1000 
 Deduct partial loss, .£50 
 provisions and wear and tear, 50 
 
 100 
 
 Value to contribute, £900 
 
 Or 2. Value of the ship in her deteriorated state, 800 
 
 Add made good by general contribution, 100 
 
 To contribute as above, £900 
 
 That principle appears to be the most correct by which 
 these two modes can Ije made to agree. From a mass of man- 
 uscript adjustments, (made witliin the last thirty years,) now 
 before me, I find tliat in scarcely any instance has the amount 
 made good to the ship by general contribution, been added to 
 the value of the vessel in her deteriorated state on arrival. If* 
 the value were taken after she was repaired it would be incor- 
 rect, by so much as the amount of the wear and tear, &.c, of 
 the voyage to that time, which it is presumed would be ref- 
 placed by the repairs. There is however, still a question on 
 this subject : — for as the voyage proceeds the value of the 
 ship necessarily decreases, and the relative value of the freight 
 increases : — therefore what the ship-owner loses of his ship 
 by the wear and tear of the voyage, it may be imagined he 
 gains by the probability of earning his freight. But the freight 
 always contributes in full, (except the wages,) — though the 
 above may have given rise to the erroneous practice of de- 
 ducting the provisions also, which are part of the outfit of the 
 
 n Vide Infra, ship, from the amount of the freight." 
 
 Art. 3. It may be remarked, in confirmation of the principle of 
 
 taking the value of the sjiip at what she was worth when she 
 sailed on her voyage, «fcc, {as per first example,) that a ship- 
 owner sends his ship to sea intending to have lier brought 
 ^ back again : he does not send her abroad, as a merchant does
 
 Adjustment of General Average. 215 
 
 it is upon this principle that some foreign ordinan- 
 ces, as before mentioned, deduct a half, from the 
 value of the ship at the conmiencement of the 
 voyage. 
 
 Article 3. Of the Freight. 
 
 As in the value of the ship so also in the value of 
 the freight to be brought into contribution — the 
 foreign authorities are not agreed. Some direct" oOrd. France. 
 that oidy half the freight shall contribute; — others'' cu^tmn'^o'f^*' 
 the whole : falter deducting the wap-es :) — one, the Lisbon, (i) 
 
 ,. \.Vi . . .1 • 1 1 1 P II Con. del. 
 
 ordmance oi r lorence, states one-thnd ; and accord- Mar. c. 96. 
 ing to others, it has been seen, that it is optional Ord.Ph. ii. 
 
 • 1 1 • CI -11 Genoa. 
 
 With the proprietors or the cargo,'' — or with the — Konigs. 
 owner of the ship,' whether the full value of the cop"n' 
 ship or of the freight shall contribute. *i Leg. wisb. 
 
 When the average is adjusted after the ship's ar- _1Jrou!^ 
 rival, and the freight is payable at the port of dis- ^^- ^^'■^- „ 
 
 a 1 ^ ^1 annot. p. 116. 
 
 charge, there can be no doubt that it should make 'Leg. oier.8. 
 
 part of the contributory interest ; nor is there any 
 
 when the average is settled at the loading port, — 
 
 if the freight, or whatever other name it may be 
 
 called by, be paid in advance ; for it then, being a 
 
 charge on the invoice, becomes part of the value of 
 
 the carffo :' — but when the payment of the freight \ Vide sup 
 
 , 1^1 . V • 1 1 1 • 1 • Art. 1, of this 
 
 depends on the contingency ot arrival, the snip being chapter. 
 a general one — not chartered for the voyage, — it 
 is thought by some, that the ship and cargo should 
 alone contribute, provisionally, — they being the 
 only real property at stake ; for in case of the ship 
 being lost on the voyage, she would have earned no 
 
 a bale of goods to be sold on arrival. The sum, therefore, 
 which the ship-owner has at risk, is the value of the ship in 
 her own port, and not any fictitious value. 
 
 (1) This is stated to be the custom, of Lisbon, because the 
 author has not yet been able to obtain a coj)y of tlie marine 
 laws or ordinances of Portugal.
 
 216 Of General Average. — Stevens. 
 
 freight. It is held however, that the value of the 
 
 freight must contribute in the case of recapture, — 
 
 (which is similar to a general average loss,) if it 
 
 t 1 Edwards' were in the course of being earned at the time.* (1) (ci) 
 
 223" ^^' ^ On a ship being chartered for the voyage, and 
 
 Freight for ^^q avcragc beinp- settled at the port of loading, it 
 
 SUCCGSSIVG CD CD X ~ ■' 
 
 passages. is the custom in Lloyd's to make the freight con- 
 tribute to the general average;-^ — and the learned 
 judge of the Admiralty court has decreed salvage to 
 be due upon the whole freight, where the ship went 
 out upon a charter-party for the voyage out and 
 
 Rep^p'^™' home." — This is confirmed by the judgment of the 
 Court of King's Bench ; — where the whole freight 
 of an East India ship chartered out and home, was 
 
 (1) In a former case of re-capture where the freight was 
 
 Re^^^qo*^'"' ^"^''^^^ to contribute/ Sir AVilhani Scott qualified his judgment 
 
 by saying; — ' If a commencement has taken place, «HfZ the 
 
 voyage is aftcrwarch occomjjiished, the whole freight is included 
 
 in the valuation of the property on which salvage is given.' 
 
 (a) The author is certainly rather obscure in this paragraph. 
 What can be meant by the ship and freight contributing ' pro- 
 visionally' in case of a general ship, that is, one not chartered 
 for the voyage 1 According to the universal rule, the con- 
 tribution for a jettison does not become absolute until the ship 
 arrives at her port of discharge, for until then it is not cer- 
 tain whether any thing will be saved, on which to assess an 
 average. Mr Stevens does not seem here to distinguish the 
 cases of contributions which become absolutely due at an in- 
 termediate port, as for money paid in claiming the property 
 and procuring its release, where the ship is carried in for 
 examination, from those of ordinary jettison for which no 
 contribution becomes due until arrival at the port of delivery. 
 In the latter case it does not appear how any question can 
 be raised as to ship and cargo paying the average provision- 
 ally, in case of a general ship, any more than in that of one 
 chartered for the voyage. Nothing is due until the ship ar- 
 rives at the port of delivery, consequently no question arises 
 as to paying provisionally before such arrival. At that port 
 the contribution is due from what is saved of ship, cargo and 
 freight, whether the ship is chartered for the voyage, or is a 
 general ship ; this is a matter of common practice, in Eng- 
 land as well as in the United States, and indeed, it is believed, 
 throughout the commercial world. — Ed.
 
 Adjustment of General Average. 217 
 
 adjudged to contribute to a general average, which 
 liappened on the voyage out." (a) "" i Mauie & 
 
 A X- I • I u • 1 1 J Selwyn'sRep. 
 
 Owners or ships, when the cargo is loaded on p. 318. 
 their own account, and they have not hisured the f^^^f° ''eiong- 
 
 ,., Till ;• 1 /- '"S ^^ owners 
 
 ireight, have contended that the skip and cargo, (or of ship. 
 ratlier the underwriters on them,) ought to pay the 
 whole oi' the general average. But this is errone- 
 ous ; — in the vahie of every cargo the freight is a 
 component part ; — the freight has been earned — if 
 not, it might as well be contended that no wages 
 were due, as freight is significantly called ' the 
 mother of wages,' — but the fact is that whether 
 the cargo come to a gaining or a losing market, the ' 
 freight is always in it. 
 
 Wherever the averag-e is adjusted, the waws of Wages de- 
 
 ducted from 
 
 the seamen must be deducted from the amount of freight. 
 the freight, and the net sum is the value for con- 
 tribution. "^ But it is the wages due at the termina- ^j^^ ^si'^Yi 
 tion of the voyage ; and therefore any advance of Ord. Genoa, 
 wages, which is allowed to be included in the val- Hamff ' 
 ue of the shii) faod to be insured as part of her out- Copen. 
 
 r \^, • 111 1 France, &c. 
 
 nt,)- is not to be deducted. Emer. c. xii, 
 
 The reasons why seamen's wages should not con- 4 fp- ^ , ^ 
 
 I- 11 TT 1 I Poth. C. deL. 
 
 tribute, are as lollow : — r irst, — the wages ought p.ii,§ i,art.3. 
 not to be clogged with any charges, that the seamen ^03^^'^^'^" ^' 
 may the more readily consent to a jettison, or any 
 other sacrifice for the general benefit, from knowing 
 that they will not be sufferers thereby ; also that 
 they may not expose themselves too much, and there- 
 by risk the whole;' and further, that 'having paid ^1 Mag. p. 71. 
 by their extraordinary personal services during the 
 peril which gave rise to the jettison, it is but just 
 that they should be allowed this privilege.' Second- l^°\?| P^^^ 
 
 art. 3, n. 12G. 
 (a) The question here suggested is one of some difficulty. 
 It will be noticed in a note to Mr Benecke's chapter on this 
 subject. — Ed. 
 
 28
 
 218 
 
 Of General Average. — Stevens. 
 
 b Ord. Fr. 
 ' d'Ass.' art. 
 XV. 7 Term 
 Rep. p. 157. 
 3 Bur. Rep. 
 p. 1912. 
 1 Mag. p. 18. 
 Park, p. 12. 
 Marsh, p. 90. 
 = Poth. C. de 
 L. ut sup. &, 
 Cont. d'Ass. 
 ut inf. 
 
 d Ord. France. 
 Emer. ut sup. 
 
 Master's 
 wages. 
 
 e Marshall, 
 p. 831. 
 
 f 2 Rob. Adm. 
 Rep. p. 237. 
 
 What wages 
 are to be 
 deducted. 
 
 ly, — because seamen's wages are not an insurable 
 interest'' (1), except as above, where they form part 
 of the outfit ; — and Thirdly, — because the wages 
 are not due unless the ship arrive in safety.'' 
 
 If, indeed, the full freight were to contribute to 
 the loss, the owner of the ship would, (from freight 
 being considered the mother of wages,) (2) deduct 
 a proportion of the average claim from the wages be- 
 fore he paid the seamen for the voyage. — There 
 is but one instance mentioned by the foreign writers 
 where the seamen's wages contribute to the general 
 average, and that is, in the case of the ransom of the 
 ship.'' 
 
 It is customary to deduct the master's wages 
 also (3) ; — though the rule which prohibited the 
 insurance of the wages of the mariners did not ap- 
 ply to the captain." The seamen's wages are se- 
 cured to them on the bottom of the ship ; but the 
 master has merely the security of his owners, ac- 
 cording to his contract with them. The former can 
 sue in the court of Admiralty — the latter cannot.' 
 There may be, therefore, some doubt whether the 
 master's wages should be deducted. 
 
 It is settled, that the seamen's wages should be 
 deducted from the freight ; — but it has been made 
 a question by some, whether it should in all cases 
 
 S Tr. Cont. 
 d'Ass. ch. 1, 
 2, art. 1, n. 
 3G. 39. 
 h Pr. Eq. b. 
 p. l,c. 4, § 
 
 i Bynker- 
 shoek, torn. 
 11. Quaest. 
 jur. priv. 1. 
 iv,c.21. 
 
 (1) Pothier says, ' the i*easons why seamen's wages are not 
 insurable are these : — 1. Because they are gains to which 
 seamen are not entitled, if the vessel and her cargo perish. 
 2. For fear that, being insured, they would not use the same 
 care in the preservation of the vessel, in which they would no 
 longer have an interest.'? 
 
 (2) According to Lord Raimes, the reason why freight is 
 called the mother of wages is — because ' if the former be 
 due, the latter must also be due.''' 
 
 (3) It was customary in Holland for the master's wages to 
 contribute equally with the goods preserved ; — but tliis was 
 only when the average was settled at the port of loading, and 
 the goods were valued at the market price.'
 
 Adjustment of General Average. 219 
 
 be the full amount of wages for the voyage : i. e. 
 
 whether the rule shall be the same at whatever part 
 
 of the voyage the average claim may occur. Magens 
 
 says,*" ' only so much of the seamen's wages ought ^ i Magens, 
 
 to be deducted from the freight as may be due from 
 
 the time of their beginning to load till their arrival.' 
 
 This is the whole of the wages at risk during the 
 
 voyage. But as the freight cannot be earned till 
 
 the voyage is completed, it is conceived that where 
 
 the whole of the freight is brought into contribution, 
 
 the whole of the wages must be deducted. Were 
 
 the ship hired by the month, and the seamen (not 
 
 only paid, but) hired by the month also, the case 
 
 might admit of discussion, (a) 
 
 Some persons hold, I presume, on the authority Provisions. 
 of the Digest' — that not only the wages, but the i Dig. ad Leg. 
 provisions ought to be deducted from the freight, — f^'oJd'pli^ 
 and a learned and excellent writer before quoted ap- li. art 7. 
 pears to be of this opinion ;'" for in a pro-formd state- ^^' ^^ ^^ ' 
 ment given of a general average claim, he deducts m Abbott, p. 
 the wages and victuals from the freight, and this, "'' ^' ^' ^ ^*^- 
 though the ship is supposed to have sailed from 
 Portsmouth and to have put into Ramsgate in dis- 
 tress. I submit that no satisfactory reason can be 
 given why the ship's provisions, which are part of 
 the ship's stores, should be deducted from the freight ; 
 — what is expended of them, as I have endeavoured 
 to show, ought to be deducted from the original 
 value of the ship," and not from the amount of the "^ ut sup. art. 
 freight. X!S' 
 
 If the voyage be very long, and the freight in 
 
 (a) In New York freight contributes on one half of its 
 gross amount ; in Boston, Philadelphia and Baltimore on two 
 thirds ; one or the other of these proportions is generally 
 adopted in the U. S. It is practically much more convenient, 
 and is sufficiently just and eciuitablc, to adopt some such gen- 
 eral proportion, rather than to go into particular estimates 
 in every individual case, as is the usage in England. — Ej). "
 
 220 
 
 Of General Average. — Stevens. 
 
 Freight of 
 goods jet- 
 tisoned. 
 
 o Ord. Fr. 
 ' AfF.' art. xiij 
 r 1 Magens, 
 p. 289. 
 Other goods 
 shipped in- 
 stead of 
 those jetti- 
 soned. 
 
 consequence be consumed by the wages, there is no 
 freight to contribute, — for none having been saved 
 by the sacrifice made, the owner has received no 
 benefit from it. Thus (in reference to the pre- 
 ceding article p. 209) it would seem that a case 
 may occur, where the ship alone shall pay the gen- 
 eral average, — that alone having been benefited by 
 the sacrifice. 
 
 The ordinance of France says, — the freight of 
 goods jettisoned shall be paid in general average, 
 and shall contribute its proportion" ; — and this is 
 the practice of all countries. •" But where the ship 
 puts into an intermediate port, and takes in goods 
 in lieu of those jettisoned — then the freight of 
 these goods, (less the charge of shipping them,) 
 ought to be deducted from the freight of those jet- 
 tisoned. — Else the owner of the ship would be a 
 gainer by another's loss, contrary to the equitable 
 maxim of the civil law, before quoted. Nemo de- 
 bet, ^"C. 
 
 Freight pro 
 rata contri- 
 butes. 
 
 This article ought not to be closed without no- 
 ticing a case which has sometimes occurred ; — as 
 where a ship is wrecked off her port of destination, 
 — and the cargo is saved and delivered to the con- 
 signees. — There can be no doubt that in such a 
 case, the freight being in the goods, ought to con- 
 tribute to the expenses incurred in recovering the 
 goods and restoring them to the proprietors. («)(1) 
 
 («) This is pvirely a case of contribution by freight earned 
 pro rata, for in the case put by Mr Stevens, the expenses 
 of forvvardino; the goods to the consignees is deducted from 
 the stipulated freight, and tlie remainder will be the freight 
 saved, and to be taken into the account in estimating the 
 contributary value. — Ed. 
 
 (1) The learned and accurate Lord Raimes selects this as 
 a fit case to illustrate the equitable maxim of Nemo debet 
 locupletari aliena jacturd. — It vjas contended that in strict 
 law, the proprietor of the goods was liable for the whole ex-
 
 Adjustment of General Average. 221 
 
 Article 4. Remarks on the Contributory Interest. 
 
 From what has been said, it maj be inferred, that Vaiue in the 
 the valuation in a policy of insurance ought not in conTnbuUorT 
 anj manner to affect the value for contribution ; — different. 
 thej in fact proceed upon very different data — the 
 former having a view to the indemnity of the as- 
 sured, according to a fixed principle implied or 
 agreed upon between him and the insurer, — and the 
 latter having a relation merely to the value at risk, 
 
 — which determines the proportion of benefit re- 
 ceived. 
 
 It has been seen, that the value of the cargo to Vaiue of the 
 contribute is either the cost on board at the port of t'lff'^rent sub- 
 loading, or the net proceeds at the port of dis- 
 charge ; — the value of the ship is the sum she was 
 worth (as nearly as it can be ascertained,) when, or 
 immediately before the average loss was incurred ; {a) 
 
 — and the value of the freight is the actual sum re- 
 ceived by the ship-owner, after deducting the sea- 
 
 jects. 
 
 Magens says,' the value of the ship and cargo to \ Magens, p. 
 contribute, — is that value which they would have 
 produced net, for ready money, had they both be- 
 longed to one person, and had no sacrifice been made. 
 
 It is necessary to observe, that before the appor- 
 
 pense of salvage, tlie expense being wholly incurred in re- 
 covering Iiis goods. — But in erjuity the case will stand thus : 
 — The proprietor of the goods and the owner of the ship are 
 connected by a common interest ; the recovering the goods 
 from shipwreck was beneficial to both parties ; — to the 
 freighter, because it put him again in possession of his goods, 
 and to the owner of the ship, because it gave him a claim for 
 freight. The salvage accordingly was truly in rem vcrsum 
 both ; and for that reason ought to be paid by both in propor- 
 tion to tlie benefit received.' ' Kaimes' Pr. 
 la) See note above as to the value of the ship in contribu- 1^1- ^- i? P- '> ^- 
 tion.-ED. iii,§2.art.2.
 
 222 Of General Average. — Stevens. 
 
 tionment is made of the loss, — each of the interests, 
 t Poth. Cont. viz : — the cargo,' the ship and the freight, after the 
 I'^it.^i n.^ value is accurately ascertained, must be severally 
 114. stript of all the charges attached to it. 
 
 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 ad- 
 justments 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 contri- 
 bution. 
 Rate per cent It is uot ucccssary, and it only tends to mislead, 
 in the average to State the amouut per cent at the foot of an ad- 
 different, justment of a general average loss ; — though it ap- 
 pears from a great number of old manuscript state- 
 ments now before me, that this has been the custom 
 for many years past, — and in some instances the 
 amount payable by each interest is not even men- 
 tioned — but merely the sum per cent. It is evi- 
 dent, that this rough mode of making the apportion- 
 ment must have led to erroneous settlements on the 
 policies ; — for it is very seldom indeed that the 
 amount per cent on the statement is precisely the 
 per centage to be recovered on the policy. (1) 
 
 (1) An example is selected from many others, of an erro- 
 neous settlement which was made at Lloyd's (in the year 
 1792,) in consequence of a per centage being placed at the foot 
 of the statement of claim for general average : — 
 
 The amount of loss, to be made good by a general average 
 contribution, ^207 : 9 : 9. 
 
 The Apportionment was as follows : — 
 ' Ship, valued at, ,£1300 ^ -.r i ■ .i i • 
 
 Ca^o, 1750 \ J^f''f ^^'^ ^^^1^' 
 
 Freight, {net,) 400 P^ * ^ = ^ P^^" ^^"t- 
 
 The ship was insured at ^2000 
 The cargo, at if2253 
 
 What the freight was insured at does not appear.
 
 Jidjustinent of General ./Iverage. 223 
 
 The ancient laws and the foreign ordinances state, 
 that if the ship escape from the peril for which the 
 sacrifice was made, and get into a port of refuge, the 
 average claim becomes due. The Danish Ordinance General 
 says, that the average is to be paid by the insurers average for 
 
 •^ P • 1 • 1 r 1 expenses, and 
 
 as oiten as it happens, cither once or oitener, al- a total loss. 
 though the ship be afterwards lost on the same 
 voyage : — and this is conformable to our present 
 practice, in cases where expenses are incurred for 
 the general benefit. 
 
 Before this subject is closed it may be expected Foreign ad- 
 that something should be said of the liability of the J*^^^'^*^"^*- 
 underwriters to a claim for general average, when 
 adjusted in a foreign country, and according to the 
 laws of that country. 
 
 It would be improper to decide at once, without 
 enquiry, that the underwriters are not liable in any 
 case, because the insurance being effected here the 
 claim must be made up conformably to our laws." " i Magens, 
 It is thought by some, that if the adjustment be p. 223. ^^ ^ ' 
 made up at an intermediate port by, or under the 
 superintendence or by the order of, a court of compe- 
 
 The claim was settled on tlie policies at £G : : 4 per cent, 
 as in the statement ; without any allusion to the difference be- 
 tween the value taken for general contribution and the value 
 in the policies. 
 
 It is easy to conceive how this principle would operate, and 
 what errors would be produced, if the amount on which the 
 apportionment was made were decreased, or the value in the 
 policies were much increased. In regard to this remark, — 
 the attention of the reader should be chiefly directed to poli- 
 cies on goods on board a general ship. 
 
 It may be necessary to observe, on the subject of erro- 
 neous adjustments, that sometimes the column of particular 
 charges on the cargo, contains those charges which sliould be 
 paid by the underwriter, and also those which should be borne 
 by the proj)rietor. — Care should be taken to select and ap- 
 propriate these before a settlement is made on the policy.
 
 224 Of General Average. — Stevens. 
 
 tent jurisdiction, and the master is not permitted to 
 proceed on his voyage until he conforms to such ar- 
 rangements, — the insurers are liable ; — it being 
 one of the risks to which they are exposed on 
 foreign voyages, and which ought to be considered 
 by them when they underwrite the policy. — If the 
 master could be borne out by the facts, perhaps the 
 case might be worthy attention ; — but it can scarce- 
 ly be conceived that a court would interfere to com- 
 pel the master to have the average claim adjusted 
 — it is more probable that this would be done on 
 the application of the master himself, or from his 
 inattention in suffering what he might have pre- 
 vented. All that the constituted authorities could 
 reasonably require of him would be, that he should 
 re-pay the expenses incurred in a satisfactory man- 
 ner to the parties ; and whether this were done by 
 drawing bills on his owners, or by any other means, 
 has nothing to do with the adjustment of the claim ; 
 which cannot be at all necessary, or correct, or even 
 useful, in that stage of the voyage. (1) 
 
 But the case is different when the claim is ad- 
 justed at a foreign port on the termination of the 
 voyage ; and it is perhaps by blending the two cases 
 together, that a hasty judgment is formed of the in- 
 
 ^ p , (1) Contrary to this however was the opinion of Mr Jus- 
 
 424 n. tice Biiller at iV/s/ PWms^, — who held that the underwriters 
 
 were liable to a fjeneral average as made up at Leghorn (an 
 intermediate port) according to the sentence of the court of 
 Pisa ; — because several brokers proved that they had ' in re- 
 peated instances adjusted averages under similar sentences, 
 and the underwriters, though with reluctance, had always paid 
 them' — that is, settled them as a matter of favour. Nothing 
 can show more strongly than this the abuse of putting out of 
 the question the general law, and allowing the practice of 
 Usao-e. Lloyd's to be considered as the custom of merchants. — Usage 
 
 of trade is doubtless ' a sacred thing,' but the practice of 
 Lloyd's is not always to be considered as the usagfe of trade, 
 and much discrimination should be used in admitting such 
 evidence.
 
 Adjustment of General Average. 225 
 
 surers being in no case liable to the payment of an 
 average claim as adjusted in a foreign country. — 
 If during the voyage it has been necessary to make 
 a jettison of the cargo, to cut from anchors, &c, for 
 the general safety, it is one of the duties of the 
 master, to see that the loss is replaced by a general 
 contribution ; and in case of jettison, or a conver- 
 sion of part of the cargo to pay the expenses, &c, 
 his liability to account for the property intrusted to 
 his charge, may often oblige him as an act of self- 
 defence to have the claim adjusted where the voyage 
 ends. It is for the courts of law to determine 
 whether in such a case the underwriters are liable 
 to the apportionment as adjusted according to the 
 foreign laivs ; or whether the statement should be 
 taken to pieces and re-made up here. (1) 
 
 On the general principle, the judicious Lord 
 Kaimes has observed," — that, ' to award execution u Kaimes' Pr. 
 upon a foreign decree, without admitting any objec- Eq. •). 3, c. 8, 
 tion against it, would be, for aught the court can 
 know, to support and promote injustice.' ' Courts 
 were instituted to repress, not to enforce wrong, and 
 the judge who enforces any unlawful paction be- 
 comes accessory to the wrong.' ' In our decisions 
 
 (I) Since the first edition of this Essay it has been decided, 
 
 after argument before the Judges of the Court of King's 
 
 Bench, that the underwriter on a pohcy in the usual form on 
 
 goods bound to a foreign country, is not Uable to indemnify 
 
 tlie assured, (a subject of that country,) who is obliged by the 
 
 decree of a court there to pay contribution to a general 
 
 average, which by the law of this country could not have been 
 
 demanded. Lord Ellenborough, who delivered the judgment 
 
 of the court, said, that the underwriters in this case had a 
 
 right to insist that the general average to which alone their 
 
 indemnity is confined, is general average as it is understood in 
 
 England, where this contract of indemnity is formed ; unless 
 
 it should appear that the parties contracted imder a usage 
 
 among merchants relative to the same subject, and shown to 
 
 have obtained in the country where by the terms of the con- '^ 4 M. and 
 
 tract the adventure is made to determine. ^ ^?i' ^^P* P" 
 
 141. 
 
 29
 
 226 Of General Average. — Stevens. 
 
 upon foreign prescriptions it is commonly the point 
 disputed, — whether such or those of our own coun- 
 try ought to be the rule. This never ought to be a 
 dispute, for every case that comes under our own 
 laws must be decided by that law, and not by the 
 law of any other country.' (a) 
 
 (a) See note to Benecke on foreign adjustments. — Ed.
 
 CHAPTER VII. — Of the Adjustment of 
 General Average. 
 
 [Benecke, c. 7.] 
 
 The adjustment of General Average consists in 
 ascertaining the amount of the claim, and in deter- 
 mining the respective shares of contribution. 
 
 And, first, as to fixing the amount of the claim, it 
 has been observed that all claims for general contri- 
 bution arise either from the sacrifice of goods on 
 board, ship's furniture, &c, or from dishursements ; 
 and as the latter can require no calculation (suppos- 
 ing the fact in which they originated, as well as the 
 amount of the disbursements, to be sufficiently prov- 
 ed,) we shall have to investigate, in this place, the 
 nature of claims for property sacrificed only. The i. Estimate 
 rule which ought to guide us in this respect, is, that perty*^sacri- 
 the owner of property sacrificed must be placed in ficed. 
 the same condition in which he would have been if 
 not his property, but that of another party, had been 
 sacrificed. This principle, the justness of which is 
 evident in itself, will enable us, under all circum- 
 stances, to determine the amount of indemnity due 
 to the proprietor of articles thrown overboard or 
 otherwise sacrificed, if we consider those articles as 
 if they had remained on board. 
 
 If the vessel, therefore, reaches the place of her if the vessel 
 destination without further accident, the goods piacrof^her^ 
 thrown overboard must be allowed for in general destination. 
 average at the net price for which they might have 
 sold at that place, deducting also the freight for such 
 goods, supposing this not to be paid by the consignee, 
 but separately allowed for in general average in 
 favour of the captain ; and the owner of the goods
 
 228 Of General Jiverage. — Benecke. 
 
 sacrificed must contribute to the loss like those 
 whose goods have been saved. Thus, neither the 
 rest of the owners will be injured, even though the 
 price of the articles sacrificed should far exceed their 
 cost price : for thus much was really sacrificed ; and 
 it would be as unjust to deprive the owner of the 
 profit sacrificed for the general benefit, as to deprive 
 him of the prime cost ; nor has the owner any cause 
 to complain, if, in consequence of a fall of the mar- 
 ket, he receive less than the prime cost : for with 
 the money received he may purchase goods of the 
 same kind, and thus place himself in the situation in 
 which he would have been, had his goods not been 
 sacrificed. 
 Rule of the By the Roman law, the prime cost only of goods 
 Roman law. ^^g^ overboard was allowed, without reference to the 
 market price at the place of discharge. On the other 
 hand, the owner, by way of indemnification for the 
 loss of his supposed profit, Avas exempt from contri- 
 buting towards the jettison, while the property saved 
 ft L.2, § 4.de contributed to its full value at the place of discharge.^ 
 LegeRhod. j^ jg g^gy ^q perccive that in this manner sometimes 
 one party and sometimes another must have been 
 injured. 
 Rule of the ^hc Consoluto del mare, (c. 95,) making a dis- 
 
 consolate del tinction between the accident having occurred on 
 the first or the second half of the voyage, ordains that 
 in the former case the jettison shall be paid at cost 
 price, and in the latter at the price it would have 
 borne at the port of discharge. This rule, which is 
 and^SwSkn. equally prcpostcrous in principle and difiicult in 
 b swed. Av. practice, is said to have been followed formerly also 
 art. V.2, §2; jj^ ^j^jg couutrv ; it was actcd upon in Holland, until 
 
 Copenh. art. , ^^ i >i i • j i i i • • 
 
 XI; Rotter- the f rcuch Lode was mtroduced there; and it is 
 
 ^^J ^ ^^'' still the rule in Denmark and S^veden." 
 
 In England, At prcscut it is a Settled practice in this country, 
 
 to estimate the goods thrown overboard at the price 
 
 they would have been worth at the port of destina-
 
 Adjustment of General Average. 229 
 
 tion, deducting freight, duty, and other expenses. France, 
 The same rule is prescribed by the laws of France, ^pam, and 
 
 . 1 ^ ' rrussia. 
 
 Spain, and Prussia. (\) (ci) 
 
 In Hamburgh it is customary, whether the acci- in Ham- 
 dent take place before or after the accomplishment ^'"■'g'^- 
 of half the voyage, to estimate the goods thrown 
 overboard according to their j^rme cost, adding ship- 
 ping charges, and insurance premium. This is the 
 more singular as it is a deviation from the Hanseatic 
 marine law and the Hamburgh statutes, which direct 
 the value at the port of discharge to ])e allowed 
 under all circumstances. 
 
 Should a jettison take place so near the port of if the vessel 
 departure, that the vessel returns to the same or to '^o^'t'ofliL^ar- 
 a neighbouring port, (in which case the general aver- ture. 
 age ought to be adjusted at the port of departure,) 
 it will be most advisable to replace the goods, which 
 were cast overboard, by others of the same descrip- 
 tion, in order that the freight and expected profit 
 may not be lost. It is clear that in such a case the 
 actual price of the goods replaced must be allowed, 
 together with the charges, but without the premium, 
 w^hich will not be lost. But if the goods cannot in 
 this manner be replaced, either because the revenue 
 laws do not allow^ of it, or because the vessel must 
 not be detained, and if, nevertheless, the average is 
 to be adjusted at the place of departure, the goods, I 
 think, ought to be paid for at their cost price, in- 
 cluding shipping charges and premium of insurance. 
 The proprietor of such goods will thus lose the ex- 
 pected profit, it is true, but, on the other hand, he 
 
 (1) Ordon. de Louis XIV. Tit. du jet, art. 6; Tit. dii fret, 
 art. 13, 14, et 20; Code, art. 41.5; Ordenanzas de Bilbao, 
 cap. 21, art. .5; Preuss. Allrrem. Landrecht, §§ 1861—1863. 
 
 («) The rule is the same in the United States, as to the 
 value at which jroods are to he contributed for, as in England 
 and France. — En.
 
 230 Of General Average. — Benecke. 
 
 will be paid immediately, and his indemnification 
 will not depend upon the future fate of the vessel, 
 as would be the case if the average were to be ad- 
 justed after the ship's arrival at her port of destina- 
 tion, (a) 
 
 Whether an (a) It does not appear whether Mr Benecke puts the ad- 
 
 adjustment at justment at the port of departure upon the consent of parties 
 e por o merely, or upon the absolute right of some of them ; if upon 
 bindintr. consent of all parties, this is implicitly admitting that no rule 
 
 can be made that is applicable to the case, and binding upon 
 all parties, or binding upon some of them at the election of 
 the others. A suggestion made by him will perhaps direct us 
 to a rule. He suggests that the owner of the articles jettison- 
 ed may procure others at the port of departure instead of 
 those sacrificed. This may not always be practicable, how- 
 ever, and therefore we can only go so far as to lay down a 
 conditional rule, namely, if the shipper (supposing a case of 
 jettison of goods) has an opportunity to ship other similar 
 goods in the place of those jettisoned, and the general average 
 is adjusted so that he can, without delay until the termination 
 of the voyage, compel the other parties to contribute accord- 
 ing to the adjustment, he certainly ought to be entitled only 
 to the value at the port of departure, and the freight of 
 the jettisoned goods ought not to be contributed for, since by 
 shipping others he can save the freight, assuming as above 
 that the master is ready to take the substituted goods on 
 board at the freight originally stipulated. And reciprocally, 
 if the master can procure other goods on freight instead of 
 those jettisoned, he ought not to be entitled to the freight of 
 those jettisoned. If then there is an opportunity to adjust the 
 average at the port of departure, if the partv whose goods 
 are jettisoned is ready to adjust the average and place the 
 others in the same situation as before the jettison, in all re- 
 spects excepting their contribution, or if the others are ready 
 to place him in the same situation as before the jettison, ex- 
 cepting his proportion of the contribution, it does not appear 
 why the party on one side or the other ready to make the 
 adjustment, should not compel the other to settle it at the port 
 of departure, this being evidently for the interest of all the 
 parties interested. It is not obvious how the right of adjust- 
 ment of general average at the port of departure can be car- 
 ried further without the assistance of some positive regulation 
 by law on the subject. 
 As to includ- Mr Benecke suggests the including of the premium in the 
 ing premium, value of the goods jettisoned, where the adjustment is made at
 
 Adjustment of General Average. 231 
 
 If, after a jettison, the vessel does not reach the If the vessel 
 place of her destination, and the cargo is sold, from fhrportof her 
 any cause whatever, at another place, the most equi- destination. 
 table way will be to estimate the goods at the price 
 for which they might have been sold at that place : 
 for thus the proprietor will be placed in the same 
 situation as if other goods had been sacrificed in- 
 stead of his. There is no ground for regulating, in 
 this instance, the estimate by the prime cost, unless 
 in places where the law prescribes that mode of ad- 
 justment, or when the price at which the goods 
 might have been sold cannot be ascertained. 
 
 If, after a jettison, or after a voluntary sacrifice of if the vessel 
 anchors, cables, &c, ship and cargo are entirely lost, ^ » ^ y ^^ ■ 
 no contribution can take place, because the articles 
 sacrificed, had they remained in the vessel, would 
 likewise have been lost ; so that the situation of the 
 proprietor would have been the same in either case, (a) 
 
 the port of departure,; but this is introducing a new element 
 into general average, for which there does not seem to be 
 any good reason, for general average is admitted to stand 
 wholly independent of insurance. — Ed. 
 
 (a) Mr Stevens implies very distinctly, and Mr Benecke 
 here explicitly lays down, the doctrine that it is to be presum- 
 ed that the goods jettisoned, would have been damaged in the 
 subsequent part of the voyage, in proportion to the rest of the 
 cargo remaining on board. But the objections to this rule 
 are certainly of some weight, and it does not appear to be 
 supported by the authority of any judicial decision, and I 
 doubt very much whether it has much sanction in practice. 
 Cases of actual adjustments, where this rule would be apphca- 
 ble, if it were practically adopted, and where it is not applied, 
 are certainly very frequent in the United States and in foreign 
 countries. It would be a very easy thing to find practical in- 
 stances in abundance against the rnle. Whether we suppose 
 the rule to be either as above stated, or assvmie it to be that 
 an estimate may be made how much the goods jettisoned would 
 probably have been damaged had they remained on board, 
 (for the difterent modes of stating it, where it is alluded to by 
 our authors, sometimes favour one, and sometimes the other
 
 232 Of General Average. — Benecke. 
 
 If part of the YoY the saiiie reason, if part of the goods on board 
 
 goods pregcrv- 
 ed by a je 
 son be afte 
 wards lost 
 
 edby ajetti- happen to be damaged during the jettison, or if part 
 
 son be after- "^ 
 
 of these constructions) there are certainly pretty strong rea- 
 sons against it in either form. Suppose for instance the case 
 of a jettison of any part of the ship or its furniture, there 
 would often be no data for a satisfactory estimate of what 
 would probably have been the condition at the port of discharge, 
 of the thing sacrificed, if it had not been sacrificed. There 
 are difficulties, it is true, in applying the rule of contribution 
 according to the value of the thing sacrificed, in its condition 
 as to soundness, at the time of the sacrifice, for the purpose 
 of being carried to the port of discharge. Supposing for in- 
 stance, goods jettisoned, to be in bales, or boxes, and their 
 condition not to be known at the time of the jettison, and 
 other similar bales equally exposed by their situation in the 
 ship, to arrive damaged, the question will then arise whether 
 the goods jettisoned were sound or damaged at the time of the 
 jettison. This is in many instances an inquiry beset with dif- 
 ficulty, the difiiculties will, however, be avoided in a great de- 
 gree when we have determined which side to put the pre- 
 sumption, in respect to which the most convenient and equi- 
 table rule will be, perhaps, to presume, in the absence of all 
 facts showing the contrary, that the goods jettisoned were at 
 the time of being sacrificed in the same condition, as to 
 being sound or damaged, as other similar goods similarly ex- 
 posed, are on arrival at the jiort of destination. For instance 
 suppose the case of the ship springing aleak before the jettison, 
 and other boxes or bales situated in the cargo similarly to those 
 jettisoned, are found at the port of destination to be damaged 
 by sea-water, it is a fair presumption that the goods jettisoned 
 were also wet, there being no facts to the contrary. But as- 
 sume the case of damage by sea-water to the lower tiers only, 
 and a jettison of articles stored in the upper tiers, as must be 
 the case, there is here no probability that the goods jettisoned 
 would have been damaged by sea-water, had they remained 
 on board. It might appear very satisfactorily that they would 
 have been perfectly dry nntil the hold was filled with water 
 and the ship water-logged or sunk. Suppose again, the dam- 
 age being hj the admission of sea-water, that the goods jet- 
 tisoned would have sustained very little or no damage by 
 being wet. These and other cases that might be put, show 
 the impropriety of assuming as a general rule, that the goods 
 jettisoned would have been damaged proportionally to the rest 
 of the cargo, had they not been jettisoned, and this is the extent 
 of the doctrine of Mr Benecke as I understand him in the text. 
 It seems to be going quite far enough to make this presumption
 
 ./Adjustment of General Average. 233 
 
 of the articles saved be afterwards damaged or de- 
 stroyed, the proprietor of the goods cast overboard 
 cannot be entitled to a restitution of the whole, 
 whether the vessel reach the place of her destination 
 or not ; for'then he would be benefited by the jet- 
 tison, to the prejudice of the other parties. It may 
 be fairly presumed that his goods, had they remained 
 on board, would have been damaged or reduced in 
 the same proportion as those actually on board. For 
 that part which thus would have been lost, if no 
 jettison had taken place, he can be entitled to no 
 restitution, but only for that part which probably 
 would have been saved. The rule, therefore, to be 
 acted upon in cases of this nature is as follows : As 
 the full value of what would have contributed if all 
 had been saved is to the part actually saved, deducting 
 expenses, so is the full value of the sacrificed articles 
 to the indemnification to which the proprietor is en- 
 titled after the misfortune. To this he will have to 
 contribute himself for the amount of the indemnity 
 allowed him. Or, in other words : The owner of 
 the articles cast away is entitled to the same per- 
 
 where there are no strong circumstances to the contrary. 
 Another reason for not going further than this, is, that if the 
 presumption is to lean either way it ought to he in favour of 
 the party wliose property is jettisojied, for those wlio exact 
 the sacrifice ought, at least, to do him justice. A douht as to 
 the most equitable rule ought, therefore, to be settled in his 
 favour. Unless I am under some misapprehension, the rule 
 that the article jettisoned is to be contributed for at its value, 
 at the place to which the adjustment relates, supposing it to 
 have arrived there without any new intermediate cause of 
 damage, and that it is to be presumed to be in the same con- 
 dition as to soundness, when it was sacrificed, as the other 
 articles which arrive at that place, are on arrival, but this 
 presumption may be rebutted by the facts showing the con- 
 trary, will be more conformable to practice and more equita- 
 ble than the rule laid down by Mr I5enecke and Mr Stevens, 
 which ever of the above constructions is to be put upon 
 that rule. — Ed. 
 
 30
 
 234 Of General Average. — -Benecke. 
 
 centage of the value actually saved, as he would 
 have received of the whole, had the whole been 
 saved. 
 
 Thus only what was really saved will contribute, 
 and there exists no joint obligation on the part of 
 the owners of the articles saved towards the owner 
 of the goods cast overboard, nor has the latter a 
 personal claim upon the owner of goods that were 
 totally lost after the jettison. This rule, evidently 
 emanating from the nature of the transaction, ought 
 to be followed, wherever the laws are silent upon the 
 subject. 
 Freight of jet- The same rule also applies to the freight to be al- 
 tisoned goods, j^^^^ f^j. g^^^^ ^^^^ overboard. If part of the 
 
 goods saved by a jettison be afterwards lost, (not 
 damaged,) freight cannot be claimed by the ship- 
 owner for the whole of the sacrificed property, but 
 only for a proportionate part of it, as results from 
 the rule, that the sacrificed articles must be consid- 
 ered as having remained on board, (a) 
 Rule in The Frcuch law ordains, that when a vessel, saved 
 
 France. -^^ jettison, is lost iu the prosecution of her voyage, 
 
 the articles saved shall contribute towards the jetti- 
 son in proportion to their value in the state in which 
 they then will be, the salvage charges being deduct- 
 c Ord. Tit. du ed." Emerigoii observes, that according to the spirit 
 Co'de^ art. 424. of the Frcuch law, goods thrown overboard, sold, or 
 otherwise disposed of, for the benefit of the whole, 
 d I. 654. must be considered as having remained on board i** 
 from which it evidently follows, that only the above 
 stated proportion of the jettison can be claimed. — 
 In Hamburgh. The Hamburgh Ordinance says (Tit. 22, art. 10), 
 that under similar circumstances the goods saved on 
 
 (a) This is following out the same principle respecting con- 
 tribution for the freight of goods jettisoned, as is laid down 
 both by Mr Benecke and Mr Stevens respecting the goods 
 themselves, and it seems to me to be liable to the same diffi- 
 culties and objections. — En.
 
 ^Mjustment of General Average. 235 
 
 the occurrence of the latter calamity shall assist in 
 bearing (i. e. contribute in proportion to their actual 
 value) the loss of the goods thrown away, i. e. the 
 loss which the owner of the sacrificed articles really 
 sustained, and which he would not have sustained if 
 no jettison had taken place,) salvage and other char- 
 ges being first deducted. — The Prussian law ex- in Prussia. 
 presses itself upon this subject in an unsatisfactory 
 manner. It determines that no contribution shall 
 take place if the ship and cargo, after having been 
 saved from a peril, be entirely lost in the prosecu- 
 tion of the voyage ; but that, if part of the cargo 
 be saved or liberated, the owner of such part shall 
 contribute towards the first general average in the 
 same manner as if no new misfortune had occurred. 
 — The former of these dispositions ought to apply 
 to sacrificed property only, and not to disbursements; 
 and the latter, although it determine with great pro- 
 priety that the goods saved shall not contribute for 
 those that were lost, yet it is defective in not clear- 
 ly expressing that goods which have been reduced 
 in value by the new misfortune shall contribute only 
 in proportion to that reduced value. 
 
 If the articles thrown overboard, or sold for the Estimate of 
 benefit of the whole can be proved to have been di- we°reVamaged 
 minished in value by any preceding accident, it is a i^efore they 
 question, whether the real value of the damaged ,^^ay. 
 articles, or the supposed value which they would 
 have had if sound, must be allowed in adjusting the 
 contribution. This question, however, cannot be 
 answered before we shall have treated of the differ- 
 ent modes of fixing the contribution. («) 
 
 (a) Suppose for instance goods subject to leakage or break- 
 age to be jettisoned. Such articles are worth, to carry to 
 the port of destination, only wliat they would sell for at that 
 place, the ordinary leakage and breakage for the voyage being 
 deducted, assuming them not to have been subject to any ex- 
 traordinary sea-damage ; and they therefore ought to be con-
 
 236 
 
 Of General Average. — Benecke. 
 
 Estimate of 'J'q fj^ the compeiisation due to the owners of 
 
 damage aris- i ^ . . „ 
 
 ing in conse- gooQS clamagecl 111 coiisequeiice oi a jettison, or oi 
 jettison °^ '^ ^" J Other act resorted to for the common benefit, the 
 net proceeds of the damaged goods are to be de- 
 ducted from the net proceeds which thej would have 
 yielded if sound. But in places wh^re the jettison 
 is allowed for according to prime cost, as in Ham- 
 e See above, burg/i," the aiiiount of the damage must be ascer- 
 ^' ■ tained as in cases of particular average, and the loss 
 
 arising from charges and freight, supposing the lat- 
 ter to be paid by the consignee, must be added. 
 
 jet, art. 13; 
 Code, art. 
 421 ; Hamb. 
 Ord. Tit. 22, 
 art. 8, &c. 
 g Consulato, 
 98,112,113 
 
 Goods thrown gy t^g custoiii of this countrv, as well as by the 
 
 away which , -^ tt i i c, ^ i 
 
 are not allow- laws ol J" raiice, Hamourgh, &:c, goods stowed upon 
 eiuontrfbu- ^^^k are not to be allowed for/ Some laws more- 
 tion. over direct, that goods for which no bill of lading 
 
 iii^cha^'s ^^^^ signed, shall not, if thrown overboard, be com- 
 § 13 ; French pcusatcd for by Contribution." Upon this Valin 
 Ord. Tit. du y^j.^, properly remarks, that an exception ought to 
 be made when the captain neglected in haste to 
 sign the bills of lading laid before him, or when the 
 goods were entered in the captain's book. — Some 
 laws exclude also goods taken on board by the cap- 
 184; Fr. Ord! tain Contrary to charter-party, by which it was sti- 
 Jet; Code, §" puUitcd that iiouc but the goods agreed for should 
 ^^.9 5 D^n- art. be ladeu.'' Most of the foreign authors, however, 
 
 viii 7 ■ Pruss. . . , ~ . , 
 
 are of opinion that (in the absence of positive enact- 
 ments, and supposing, I presume, that the owner of 
 such goods did not know, or was not obliged to 
 know, the charter-party,) the owner of such goods 
 has a claim for contribution, not only upon the ship 
 and freight, but also upon the goods of the char- 
 terer ; and that the latter has an action against the 
 master.' (a) — Lastly, by several Ordinances those 
 
 tributed for accordingly after making such deduction, how- 
 ever early in the voyage the jettison may have beenmade. — Ed. 
 (a) These antiquated rules often appear in treatises on 
 general average, though it does not appear what possible 
 
 § 1851 ; Ord. 
 de Bilb. c. 21. 
 art. 7 ; Bal- 
 dass. IV, Tit. 
 5, § 36. 
 h Pruss. § 
 1848 ; Dan. 
 art. viii, 7. See 
 also Abbott, 
 4th edit. p. 
 368. 
 
 i Emerio-on, 
 1,640; Bal- 
 dass. IV,.Tit. 
 5, § 39 ; 
 Weijtsen, § §
 
 .Adjustment of General Average. 'JlSl 
 
 goods are also excluded the benefit of compensation, 55—57; 
 which the proprietor or his agent (supposed to be wii^a^t £bngs 
 in the vessel) shifts to some other place without the not to general 
 
 , . •) ^ averanfc, S 1). 
 
 master's consent. " ^ 
 
 If jewels or other articles of great value be de- 
 nominated in the bill of lading as goods of inferior 
 value, there can be no doubt but thej must, if sacri- 
 ficed, be allowed for only as articles of such inferior 
 value, it having been the proprietor's intention to 
 contribute for them only according to that value, (a) 
 By some Ordinances this is expressly stipulated.'' ^ t^ode, § 
 But articles of this description contained in a pas- § i804 — 5- 
 Sanger's trunk ought to be allowed for, because it is ^""^^ \f^^Q' 
 not usual to sign bills of lading for such trunks. 
 
 The damage sustained by the vessel for the gen- Estimate of 
 eral benefit, must be estimated by competent per- to uie^vessef. 
 sons. Great care must be taken to prevent a par- 
 ticular damage, which may have previously occur- 
 red, or a loss which was unavoidable under the ex- 
 practical application they can now have. Of what concern 
 is it to the other parties whether a bill of lading had or had 
 not been signed for the goods jettisoned ? this circumstance 
 would not have exonerated these ^oods from contribution for 
 the jettison of others, and vice versa others ought to contri- 
 bute for the jettison of these. The rule as to a bill of lading 
 probably grew out of the case of goods put on board clan- 
 destinely, for which the owner intended to pay no freight, 
 and which, accordingly, the master, having made no contract 
 for the purpose, was not obliged to transport. But if the 
 goods are taken on board witli the knowledge and by con- 
 sent of the master, whatever contract he may have made as 
 to transporting them, and in whatever form this contract may 
 have been made, whether written or merely oral, whether by 
 bill of lading or charter party, it can certairdy make no dif- 
 ference as to their contributing or being contributed for in 
 case of jettison. — Ed. 
 
 {a) If the owner of the goods leads the master to suppose 
 them of little value by his manner of invoicing them or other- 
 wise, it is quite reasonable that he should be entitled to claim 
 contribution for them, in case of their being jettisoned, only 
 according to their value as represented by him. — Ed.
 
 238 
 
 Of General Average. — Benecke. 
 
 Deduction of 
 a third for 
 new. 
 
 II. Apportion- 
 ment of gen- 
 eral average. 
 For what 
 amount the 
 cargo has to 
 contribute to 
 the general 
 average. 
 Weskett's 
 opinion. 
 
 1 Art. Con- 
 tribution. 
 
 isting circumstances, being made good by contribu- 
 tion. The articles actually replaced must be al- 
 lowed for at the prices which were really paid for 
 them, however they may exceed the prices at which 
 they might have been bought at the place of de- 
 parture, or at that of the destination of the vessel ; 
 for the very high price given was itself a conse- 
 quence of the measure taken for the general benefit. 
 — But, as far as the value of the new articles re- 
 placed exceeds the value of those that were sacri- 
 ficed, the difference must be at the charge of the 
 owner, because otherwise he would be benefited by 
 the measure, at the expense of the other parties con- 
 cerned. It is usual to deduct one-third of the price 
 of the new articles replaced, as the supposed differ- 
 ence between the old and new. (1 ) 
 
 I proceed now to the manner of ascertaining the 
 respective shares of contribution. 
 
 Weskett ^ is of opinion, that the cargo ought to 
 contribute towards a general average, according to 
 its value in cases of disbursements, and according to 
 its weight in cases of jettison, because when a ship 
 requires to be lightened in a storm, it is the weight 
 and not the value of the goods which occasions the 
 jettison, of which it cannot be said that it was re- 
 sorted to on account of the jewels and bank notes 
 which happened to be on board. — This argument, 
 however, is only specious; for the cause of the jet- 
 tison is the storm, and not the heaviness of the 
 goods. That some articles are heavier than others, 
 in proportion to their value, is not disadvantageous 
 to the proprietors of the lighter and more valuable 
 articles ; it is on the contrary to their advantage, 
 because the loss would be so much greater if none 
 but articles of great value were on board, and some 
 
 (1) As to the deduction of a third, see the subsequent chap- 
 ter, on the ' adjustment of particular average on ships.'
 
 Adjustment of General Average. 239 
 
 of these must have been necessarily thrown over- 
 board, so that there is no ground for charging the 
 owners of heavy goods with a greater proportion of 
 the loss. The jettison is resorted to for the purpose 
 of preservation, consequently he who saves 1001b 
 of silver must contribute more than he who saves 
 1001b of lead. — According to Weskett'' s Tpi-'mc\\)\es 
 the ship ought to be entirely free from contribution, 
 because her weight was not the cause of the jetti- 
 son, and yet the ship was preserved by the measure. 
 Moreover, if the cargo consisted of silver and lead, 
 and part of the former was thrown by mistake, it 
 could be paid for only according to the value of 
 lead ! 
 
 The laws, without any exception, provide that the 
 contribution, in all cases of general average, shall be 
 made according to the value. — But whether this 
 value shall be the first cost or the net price at the 
 place of discharge, this is a subject upon which laws 
 and opinions are at variance. 
 
 If, in determining which of the two methods claims The value at 
 the preference, the only point in question were : ^ischarLe^and 
 whether the owners of articles saved, when arrived not tho'cost, 
 at the place of their destination, ought to contribute bSonh?^ 
 also for the profit on those ^oods, if any, and ought contribution. 
 not to contribute for that part of the cost price which 
 is lost by a fall of the market — which is the case 
 when the value at the place of destination is the 
 basis of the adjustment ; — or whether it be more 
 equitable that in adjusting the contribution no refer- 
 ence should be had to the state of the market : no 
 one would hesitate in deciding in favour of the first 
 method, for the proprietor of such goods has in fact 
 saved by the measure so much as he ultimately 
 receives for them, but not always what they cost 
 him ; and the cost price is frequently only an im- 
 aginary value, whereas the price of sale is always a 
 real value.
 
 240 
 
 Of General Average. — Benecke. 
 
 p. 132. 
 
 Deteriorated But, whcii the contribution is under all circum- 
 ^'^° ^' stances regulated upon the net value at the place of 
 
 destination, the owner of goods deteriorated in value 
 during the voyage, either by internal defect or by 
 damage arising from external causes, will not con- 
 tribute for the value which was so lost to him, and 
 in that way the contribution will fall heavier upon 
 the sound goods than would be the case if the con- 
 tribution were adjusted by the first cost price. 
 Whether this is right or not deserves to be investi- 
 gated. 
 Case of do- And first, as to the internal decay arising, inde- 
 interSiTe-^^ pcndcutly of cxtcmal causes, from the nature of the 
 cay. commodity, it may be urged, that a loss of this de- 
 
 scription ought not to affect a third party, who can- 
 not, like the proprietor of those goods, derive any 
 "" f.^o ^^°^^' advantage from them ;'" and that, if other goods had 
 been on board, thev would have been liable to con- 
 tribute. — On the other hand it may be contended, 
 that the above reasons are applicable only against 
 the proprietor of perishable articles claiming restitu- 
 tion for a loss originating in the nature of his com- 
 modity ; that a merchant, loading goods which are 
 not liable to decay on board a general ship, has no 
 right to demand that none but goods of the same 
 description shall be taken on board ; that the mas- 
 ter has an indubitable right to take ballast, instead of 
 other goods, w hich would contribute in no case, and 
 that, therefore, the merchant cannot complain if he 
 take goods which may eventually not contribute ; 
 and that, if on the one hand goods which have be- 
 come worthless do not contribute, so on the other 
 hand the same goods will not be paid for if thrown 
 away in that state : so that goods of a perishable 
 nature ought to be considered in this respect in the 
 same light as all other commodities. («) 
 
 (a) As to contribution for goods subject to leakage and 
 breakage that are jettisoned, see above, p. 235, note. — Ed.
 
 Adjustment of General Average. 241 
 
 Secondly, as to the damage occasioned by external Damage by 
 accidents, it should be distinguished whether the claim dentT''^ ''*^'''" 
 for general average is of the nature of a restitution, 
 as in cases of jettison and of ship's apparel sacrificed 
 and not paid for before the completion of the voyage ; 
 or whether it consists in disbursements. In the former 
 case, the damaged goods ought to contribute accord- 
 ing to their real value in the damaged state at the 
 place of destination, for so much was in fact saved by 
 the jettison, whether the damage took place before 
 or after that measure was resorted to. There was 
 no claim for restitution before the arrival of the ship, 
 and there would have been none, if the ship and 
 cargo had been totally lost in the prosecution of the , 
 voyage. — But when the general contribution is for Disburse- 
 disbursements, the goods ought to contribute accord- l^^ggg^cd" ^^ 
 ing to their value at the time when the disburse- according to 
 ments were made, and w^ithout reference to a subse- tj|° ^^^"^ '^ 
 quent deterioration. Each party became a debtor 
 at that time, and in the proportion of the value then 
 saved for him, to the value of the whole ; he ought 
 to have paid that proportion on the spot, and if a 
 third party pays on his account what he ought to 
 have paid, his obligation cannot in justice be altered 
 by any subsequent event to the detriment of other 
 parties. — Suppose a vessel laden with fruit or sugar 
 to be taken and retaken, and the salvage to be paid 
 by bills drawn by the master upon the ship-owner. 
 If, on the continuation of the voyage, the fruit be 
 completely spoiled by internal decay, or the sugar 
 washed out by sea water : would it be right, under 
 these circumstances, to throw upon the ship-owner 
 that part of the salvage and expenses which was paid 
 for the cargo ? And yet this would be the case, if 
 the contribution were to be adjusted upon the value 
 of the goods at the place of destination. Had the 
 goods been spoiled before the recapture, no salvage 
 would have been paid for them, and no contribution 
 31
 
 242 
 
 Of General Average. — Benecke. 
 
 Three differ- 
 ent values are 
 the bases in 
 different ad- 
 justments. 
 
 1 Abbott, 
 4th ed., p. 354. 
 
 In case of 
 restitution, 
 value at the 
 port of dis- 
 charge is the 
 basis. 
 
 could have been asked on that account. — Or, sup- 
 pose a stranded vessel to be unloaded or hove off 
 with great expense, and the vessel to be much in- 
 jured to facilitate the unloading of the cargo. If the 
 master pays the repairs and expenses incurred for 
 the purpose of saving the cargo, which object was in 
 fact completed, would it be reasonable to throw 
 these expenses entirely or partly on the ship-owner, 
 if the cargo on the continuation of her voyage were 
 spoiled or damaged ? (a) 
 
 Thus it appears that neither the adjustment ac- 
 cording to the prime cost, nor that according to the 
 value at the place of destination, will answer the 
 purposes of justice and equity under all circum- 
 stances. Nor is it at all necessary in this country, 
 that either of these ways should be exclusively fol- 
 lowed. The parties are not bound by positive laws, 
 suited to certain cases only which the legislator had 
 in view, to adopt the same rule in cases of a different 
 nature ; they are, on the contrary, at full liberty to 
 exercise their own judgment as to what is reasonable 
 and just under the existing circumstances. — ' The 
 determinations of English courts of justice furnish 
 less of authority on this subject than on any other 
 branch of maritime law.'" 
 
 It follows from what has been said, that when a 
 general average of the nature of a restitution is ad- 
 justed after the vessel and cargo arrive at their des- 
 tination, 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 simi- 
 lar circumstances for disbursements, if the goods 
 arrive in a sound state, or if they were diminished 
 in value by internal decay or external damage, pre- 
 
 (a) Mr Benecke's views on this subject seem to be entirely 
 just, and are believed to correspond with the law and the 
 practice in the United States. — Ed.
 
 Adjustment of General Average. 243 
 
 vious to the period at which the disbursements were 
 made. For such goods not being destined to be sold 
 at an intermediate place, the value which they had 
 at such a place at the time of the disbursement may 
 be considered the same as their ultimate value at the 
 place of destination ; and the same remark applies 
 to the necessary increase, during the continuation of 
 the voyage, of a damage which already existed at 
 the time when the disbursements took place : for, 
 unless such damaged goods be in fact disposed of at 
 the intermediate place, they cannot be said to have 
 been worth more at the time of the disbursement, 
 than what they are ultimately sold for. — But if 
 damaged goods are sold at the intermediate place to 
 prevent their further destruction, the net amount 
 for which they were sold at that place will be the 
 sum for which they must contribute to the general 
 average. And this may be considered the practice 
 in England. 
 
 But if goods prove to have been either damaged Subsequent 
 or spoiled subsequently to the disbursements being nouilect"^^ 
 made for them, they ought to contribute towards contribution 
 
 , -i . T "^^ 9 . . , , lor disburse- 
 
 such disbursements tor their entire value, because ments. 
 the same would have taken place if the whole of the 
 ship and cargo had been lost on the continuation of 
 the voyage. 
 
 Thus it may happen that the same goods will have The same 
 to contribute in different proportions to several dis- contribute on 
 tinct claims of general average. Suppose, for in- diiferent 
 stance, a vessel to be retaken and salvage paid for the 
 cargo which at that time was sound, and a new gen- 
 eral average to take place on the continuation of the 
 voyage, and after the cargo was damaged, then the 
 cargo will have to contribute towards the first gen- 
 eral average, according to its full value, and to the 
 second according to its diminished value at the time 
 of its arrival. The same rule, of course, must pre- 
 vail with respect to single parts of the cargo which
 
 244 Of General Average. — Benecke. 
 
 may have been damaged, and it ought always to be 
 attended to in cases of general average of a mixed 
 nature, at least when the disbursements are con- 
 sideralile in comparison to the loss claimed by way 
 of restitution. 
 Net amount is The uct valuc for which goods have to contribute, 
 contribution. IS the amouut at w^hich they are or might be sold 
 for net money at the time when they come to the 
 hands of the consignee, deducting freight, duty, and 
 landing charges. When part of the goods are sold 
 with a discount for money, and another part on cred- 
 it, by which a higher price is obtained, the usual dis- 
 count and guarantee must also be deducted from the 
 latter. No deduction is to be made for insurance 
 premium, because it belongs to the prime cost, and 
 its payment does not depend upon the future fate of 
 the goods ; nor for commission, because all parties 
 are to be treated alike, whether the goods go into 
 the hands of their proprietors or to commission mer- 
 chants. 
 When the in- When a vesscl returns to the place of her depart- 
 IhehJi^of '^ ui'e, or puts into a port in an early part of her voyage, 
 contribution, and the general average must be adjusted at the 
 place of departure, the cost of the goods on board, 
 without the premium, («) ought to be the basis of con- 
 tribution : not the sum at which they are valued in 
 the policy, because that is not necessarily their real 
 value ; nor the value at the place of destination, 
 because that is only a contingent value, and the con- 
 tribution is, under those circumstances, to be paid 
 unconditionally and without reference to the future 
 fate of the ship and cargo. The same rule must be 
 followed, if, subsequently to disbursements made for 
 the general benefit, and before the average was ad- 
 justed, the ship and cargo are entirely lost. — It is 
 
 (fl) The premium ought never to be regarded in general 
 average, which does not presuppose any insurance. — Ed.
 
 Adjustment of General Average. 245 
 
 a matter of course that, in all these cases, goods 
 which were damaged before the disbursement took 
 place, pay only in proportion to their reduced value. 
 
 Whenever the cargo must be sold at an interme- Net proceeds 
 diate place, the net proceeds of the same, deducting intemediate" 
 all charges of sale, commission, &c, is the value ac- port. 
 cording to which the goods must contribute to a gen- 
 eral average. 
 
 By the Hamburgh Ordinance (Tit. 21, art. 8), Foreign laws. 
 ' the goods are to be taken in the apportionment of 
 a general average, according to the invoice amount, 
 with the addition of charges till on board, yet with- 
 out the premium.' — The same rule is prescribed by 
 the Swedish law (Aver. Art. v. 2, ^ 3), and by that 
 of Copenhagen, unless the goods be valued in the 
 policy. It is plain, however, that this cannot ap- 
 ply to goods saved from a shipwreck which happened 
 after a jettison. Such goods contribute only accord- 
 ing to their diminished value. 
 
 Goods valued in the policy contribute in Ham- 
 burgh according to that value, deduction being made 
 of the premium, which is always supposed to be in- 
 cluded in the valuation, and of 10 per cent for imag- 
 inary profit, if the policy says that profit is included, 
 without mentioning to what amount. (1) 
 
 (1) The customary way of calculating the contributory in- 
 terest is as follows : — Suppose 10,000 Mks. to be insured, with 
 profit, at 30 per cent premium, then of 10,000 Mks. 
 
 are deducted for premium 3,000 
 
 and from the remaining 7,000 
 
 10 per cent for profit 700 
 
 so that the goods contribute for 6,300 
 
 This is not quite correct ; the profit ought to be reckoned upon 
 the original capital and premium, and then the calculation 
 .will give 
 
 (1000-30X 11) X 10000 07000 
 
 = = C091. 
 
 11
 
 246 Of General Average. — Benecke. 
 
 In France, Holland, and Prussia, the goods contri- 
 bute according to their value at the place of dis- 
 o French Ord. charpc." In Holland thev contributed formerly fbe- 
 
 Tit. du let. * . . -^ '' ^. 
 
 Art. G; Code, forc the introduction of the French Code) accordino; 
 sian law r' ^^ ^^^^ ^^^^ pricc, iucludiug charges till on board, 
 1884. when the accident had happened on the first half of 
 
 the vojage ; and according to the net value at the 
 place of discharge, when the general average had 
 occurred on the second half. (1) The same distinc- 
 tion, which is said to have been made formerly in 
 SG^^Moiio' ^de England likewise,^ is still practised in Italy. '^ 
 Jure Mar. 6. By the Spanish law, the goods or cargo contribute, 
 q Bafdass. II if the majority of the parties agree to it, according 
 p. V. Tit. 2, to the amount of the invoices (which are to be pro- 
 
 & 18 . . • . • 
 
 duced immediately, with signatures and affidavits, 
 by the parties who are on the spot, by those in other 
 parts of the kingdom within 30, and by those abroad 
 within 40 days), or, if the captain does not consent 
 to this, the goods are to be estimated according to 
 their value at that time at the place of destination, 
 and in the state in which they then are : so that the 
 contribution is in no case to be adjusted according to 
 the freight, or in any other manner, unless with the 
 Bilbao*^". 21, consent of the captain and all the parties concerned/ 
 art. 3. y 4. "Yhe cjuestiou proposed above (p. 235) : w hether 
 
 goods, which were damaged before they were thrown 
 overboard, ought to be compensated for according to 
 their value in a sound or in the damaged state ? is 
 now easily answered. If they would have contri- 
 buted according to their deteriorated value at the 
 
 (1) It frequently occurs in Holland that general average is 
 settled at the place of departure, when the accident happens, 
 for instance, duiing the passage from Amsterdam to the Texel, 
 or to some neighbouring port in England. As those adjust- 
 ments are against the law, and are made merely with a view 
 to save expenses, the parties agree, before hand, that the car- 
 go shall contribute for the amount of the invoices, and the 
 ship as valued in the policy.
 
 Adjustment of General Average. 247 
 
 port of discharj2je, had they not been cast overboard, 
 equity requires that they should be paid for only at 
 their reduced value, (or rather at the probable value 
 at which they would have been sold at the time and 
 place of discharge,) that being; the real loss which 
 the proprietors sustained. — Thus it is ordained in 
 the Prussian law, that goods thrown overboard, which 
 were damaged before the jettison, shall be allowed 
 for according to the value they had at that time, 
 which is to be ascertained by competent persons, 
 uiDon the sworn report of the captain and crew." jg|| ^^^^ ^""^ 
 
 But if the damaged goods would have contributed 
 according to the prime cost, they must be paid for in 
 the same manner. For the goods, in this case, are 
 considered as retaining their original value during 
 the voyage ; and as the damage, under this suppo- 
 sition, cannot operate to the disadvantage of the 
 other proprietors, neither should it in any way op- 
 erate to their profit. 
 
 If damaged goods are sold at an intermediate 
 place, for the purpose of raising money, (and not for 
 the benefit of their proprietors to prevent total de- 
 cay,) it is clear that so much only can be demanded 
 for them after the ship's arrival, as they would have 
 produced in their damaged state at the place and 
 time of discharge. For such goods, whether sound 
 or damaged, must always be paid for according to 
 their real net value at the place of discharge. This 
 results from the nature of the subject, and it is more- 
 over expressly ordained by some of the foreign ordi- (339. ord.'de 
 nances. Biib c. 22, 
 
 art. 1 ; 
 Hanibr. Stat. 
 
 All the articles which were on board at the time J^t^s'^'^' ^^' 
 of the accident, and are capable of being estimated, what articles 
 arc subject to contribute in the manner before de- are subject to 
 
 ., 1 r^ -IP • contribute: 
 
 scribed. Consequently money, jewels, &c, contri- merchandize, 
 bute for their full value.* The Roman law ex- t^^L"'"' 
 pressly mentions jewels and pearls," and as this rule u l.2. §2,de 
 is conformable to the nature of the subject, it must Lcg.Rhod.
 
 I 
 
 248 Of General Average. — Beiiecke. 
 
 be followed every where, unless the contrary be 
 » § 26 note. Ordained. JVeijtseif says, that corned money con- 
 tributes according to its intrinsic value, but I can 
 see no reason why it should not contribute, like 
 other articles, for its current value at the place 
 either of departure or discharge. — By the law" of 
 Wisbuy (art. 38,) money contributed only for half 
 its value. This rule was, till lately, followed in 
 Holland, for gold and silver in coin as well as in 
 bullion, and some Despacheurs (persons appointed to 
 settle cases of average) there still adhere to the old 
 practice, though it be against the law, and the parties 
 be not obliged to submit to it. (ci) 
 Goods ship- Goods lashcd upon the deck, or shipped without 
 
 ped on deck ,.,, r ^ i- i ^ • •^ i 
 
 or without hills 01 lading, are also subject to contribute, al- 
 biUs ofiading. though, if cast ovcrboai'd, they are not entitled to 
 w § See the restitution.''' (6) 
 
 above^"p° 236. That goods cast ovcrboard are to contribute, and 
 Sacrificed ar- for w hat valuc, is clcar from the rule, that they must 
 tices. i^g considered as having remained on board. The 
 
 Consulato (c. 94) ordains that such goods shall con- 
 tribute in the same manner as those that are saved ; 
 and the customs and laws of all maritime states are 
 ^ Fr. Ord Tit. to the saiiic effcct.'' And as the payment of an un- 
 
 du jet. art. 7 ; -^ "^ 
 
 Code, art. 
 
 417; Pruss. § (r/) Only the good.s at risk, at the time of the loss to be 
 
 1879, &c. contributed for, contribute to the average. Accordingly when 
 a part of the cargo had been discharged before the sacrifice 
 was made, only the remainder of it, still at risk, was assessed 
 in the contribution. Bedford Ins. Co. v. Parker, 3 Pick. 1, 
 cited 2 Phil. Ins. c. 1-5, § 12, No. I.— Ed. 
 
 [b] The rule as to goods carried on deck is the same in 
 the United States ; if thrown overboard tliey are not contri- 
 buted for, though they are brought into contribution for other 
 goods that are thrown overboard. Story's Abbott, ed. 1829, 
 p. 355, n. 1 Phil. Ins. 332, 2 id. c. 15, § 2, No. 5. But 1 
 know of no rule or practice distinguishing goods shipped 
 without any bill of lading from those for which bills of 
 lading are given, provided in either case they constitute a 
 part of the cargo, that is, are not the luggage of the seamen 
 or passengers. — See note above, p. 237. — Ed.
 
 Adjustment of General Average. 249 
 
 adjusted claim for a jettison depends upon the fu- 
 ture fate of tiie ship and cargo/ consequently the y See above, 
 owner of the sacrificed articles is in the same man- ^' '^^^' 
 ner interested in the preservation of the ship and 
 cargo as if his goods were still on board, it is also 
 clear that such articles must contribute likewise to 
 a subsequent general average, which may occur upon 
 the continuation of the voyage. This is expressly 
 ordained by the Prussian law/ The same rule ap- ^ § 188O. 
 plies to goods sold for the common benefit, in those 
 countries, where they are considered as having re- 
 mained on board, but not in England, because here 
 the owner of such goods has a personal claim, in- 
 dependent of the future fate of the ship and cargo, 
 upon the parties concerned.'' a see above, 
 
 Goods shipped into barges, for the purpose of P; ^^^^' 
 lightening and saving the vessel and the remaining into barges. 
 cargo, must contribute to the general average like 
 goods thrown overboard. If, after those goods are 
 separated from the principal vessel, the latter were 
 to incur a fresh general average, unconnected with 
 the former, it might be urged that the goods tranship- 
 ped should not contribute to this for their fidl value, 
 but only to the extent of the claim which they have 
 upon the vessel, her remaining cargo and freight, for 
 charges and damages sustained : because the goods 
 in the barges not being liable for a subsequent loss of 
 the ship and the goods left on board, they are no 
 longer interested in their fate, except in regard to 
 their demand upon them for the former general 
 average, which would be lost with the vessel. But 
 on the other hand, the ship and cargo remaining 
 answerable for any future accident which may be- 
 fall the goods transhipped, till they reach their desti- 
 nation in safety, the owners of such goods would 
 have a decided preference before those of the goods 
 remaining on board, because the situation of the 
 former could in no case, after the ship had escaped 
 32
 
 250 Of General Average. — Benecke. 
 
 the danger which occasioned the transhipment, be 
 worse, but frequently better, than that of the other 
 parties ; whereas the situation of all parties will re- 
 main alike, as it ought to be, if the goods put into 
 barges are considered as having remained on board 
 till the completion of the voyage. — As lo goods 
 taken from the vessel for the convenience and at the 
 peril of the owners of such goods, all connection be- 
 tween them and the vessel and remaining cargo 
 ceases from the moment of the unloading, and a 
 subsequent general average falls entirely upon the 
 vessel, the goods remaining on board, and the freight 
 for the same. («) 
 
 What articles Ammunition and provisions (h) are exempted from 
 ammun£ ' Contributing towards a jettison, although, if cast 
 and pro- ovcrboard, their amount is refunded." The reason 
 c Abbott p ^f this is stated to be, that those articles themselves 
 III, ch. 8, § are the means of preserving and benefiting the 
 Ord. msb, whole. "^ But this reason might be applied with 
 art. 7 ; Ord. equal propriety to all the ship's furniture. The true 
 art.iiVcode, icasou appears to be, that provisions being destined 
 Prust^Vi869. t° h^ consumed during the voyage, belong to wear 
 
 A Emer. I. 
 
 (a) If the goods put into barges or transhipped for the gen- 
 eral benefit are thereby lost, the case is the same as if they 
 had been jettisoned instead of being transhipped ; if they are 
 only damaged in consequence of the transhipment, the case 
 is analogous to that of damage incidental to jettison ; there- 
 fore, either the whole value, or the amount of damage, will 
 be the shipper's claim for contribution on the original ship, 
 cargo and freight. His claim for contribution is at risk in 
 the original ship for the remaining part of the voyage ; on 
 the value of this claim he ought accordingly to contribute to 
 all averages during the subsequent part of the voyage, though 
 his goods have been put on board of another vessel. — Ed. 
 
 (6) It has been held in England that the provisions put on 
 board for convicts transported to Botany Bay do not contri- 
 bute, as cargo, to general average, and are not included in 
 the value of the ship in contribution. Brown v. Stapyleton 
 and others, 4 Bing. 119, cited 2 Phil. Ins. c. 15, § 12. — Ed. 
 
 G41.
 
 Adjustment of General Average. 251 
 
 and tear.® The exception, however, does not ex- « See below, 
 tend beyond what is meant to be used during the oftheship.'°" 
 passage, and not to such provisions as may be ship- P- ^~- 
 ped on freight. 
 
 By the same laws, and by the custom in this Seamen's lug- 
 country, the luggage of the seamen, and also their waives" 
 wages, are exempted from contribution. In France 
 the mariners were formerly obliged to contribute to 
 a ransom in proportion to their demand for wages, 
 but now they are exempted also in that case.*^ But i ^^^■P};,^'^ 
 goods which marmers carry with them on their own Code, art. 
 account are, like all other goods, liable to contribu- Pruss.^§°i874. 
 tion, except, perhaps, when the permission of carry- 
 ing a certain quantity is granted to them in lieu of 
 wages. («) 
 
 As no estimate can be made of the value of the Free people. 
 life of a freeman, neither passengers nor crew are 
 to contribute for their personal safety. 
 
 Passengers ought to contribute for their trunks Luggage, &c. 
 and luggage, because, if cast overboard, their value " p^^^'^"^^". 
 is allowed for; on the other hand, money, jewels, 
 &c, which they carry about their persons ought to 
 be exempted, because they cannot be thrown over- 
 board. — By the law of Wisbuy, the passenger, who 
 took his money from his trunk and placed it about 
 his person, paid no contribution for it. According 
 to the Guidon, however, the passengers were to 
 pay for the gold and diamonds which they had 
 about them. But Chirac says, that it is customary 
 
 (a) There seems to be no reason for this exception, for 
 where a mariner has a privilege on one ton more or less in 
 addition to his stipulated wages, (as it was formerly much the 
 practice in the United States to allow, but now mostly fallen 
 into disuse) the ship-owner and other shippers do not under- 
 take to insure this mariner against general average losses. 
 He ought to be his own underwriter, or get his adventure 
 underwritten by others, and accordingly his adventure ought 
 to contribute to general average. This gives him the freight 
 of his adventure, and this is all that he is entitled to. — En.
 
 252 
 
 Of General Average. — Benecke. 
 
 g Eraer. 
 645. 
 
 h Abbott, P. 
 Ill, ch. 8, § 
 14. 
 
 i § § 1875 and 
 1876. 
 
 Clause in the 
 charter- 
 parties by the 
 East India 
 Company. 
 
 Contribution 
 of the ship. 
 
 not to make travellers contribute for the clothes and 
 rings which they usually carry about them. It is 
 now customary also in France, though nothing on 
 the subject is mentioned in the laws, that passengers 
 contribute nothing for their trunks and the money, 
 &c, about their persons.^ The same rule prevails in 
 this country with respect to wearing apparel, jewels, 
 and other things belonging to the persons of pas- 
 sengers or crew, and taken on board for their pri- 
 vate use, and not for traffic.'' The Prussian law ex- 
 empts passengers from contributing for their clothes 
 and travelling conveniences, also for articles which 
 they may have saved about their persons at the peril 
 of their own lives.' 
 
 It is a usual condition in charter-parties by the 
 East India Comjiany, that the cargo belonging to the 
 company shall not be liable to contribute to general 
 average. A loss of this description, consequently, 
 falls entirely upon the ship, freight, and private 
 trade, and it is customary to provide for this in poli- 
 cies upon those subjects. According to this stipu- 
 lation, no connection exists, with regard to the perils 
 of the navigation, between the cargo of the company, 
 and the ship, freight, and private trade. It follows 
 hence, that the company, on the other hand, cannot 
 be entitled to compensation by way of general aver- 
 age for property of theirs thrown overboard, unless 
 there be a stipulation to the contrary. — In a late 
 case of this description, however, the loss occasioned 
 by the company's goods being thrown overboard, 
 was agreed to be compensated for by the whole of 
 the cargo, ship, freight, and private trade. 
 
 That the ship-owner ought to contribute towards 
 a general average, in the same manner as the owners 
 of the cargo, for the whole value of what was saved 
 for him by the measures taken for the benefit of the 
 whole, is so clear in itself, that it requires no further 
 illustration. But it is not so easy, under all circiun- 
 stances, to determine the amount of this value.
 
 Adjustment of General Average. 253 
 
 The vessel not being sent, like the cargo, to the is her value 
 place of destination for the purpose of being sold '^^ *^^® owner, 
 
 1 1 .1 11 I • I 1 1 supposing her 
 
 there, the accidental value which she may have at to return 
 that place at the time of her arrival cannot be the '^°'"^' 
 sum for Avhich she ought to contribute, the case of 
 an actual sale only excepted. The only value to be 
 attended to in the adjustment of a general average 
 is, vi^hat the vessel is worth to her owner, and this 
 value is neither increased nor diminished by an acci- 
 dentally great or small demand for shipping, or by 
 the circumstance of a vessel, being of less value in a 
 foreign country than in her own, if she is not meant 
 to be sold at all. Thus, a Spanish vessel, which on 
 her safe return to Spain will be worth 1500Z there, 
 must be valued at the same amount in London for 
 the purpose of contribution, though perhaps she 
 would not sell here for more than half the money. 
 
 But in the same manner, as no more can be said 
 to be saved for the owner of damaged goods than 
 they are worth in their damaged state after their 
 arrival, so no more can be said to be saved for the 
 ship-owner, than what his ship is worth, after de- 
 ducting wear and tear and accidental damage, whe- 
 ther this have happened before or after the accident 
 which occasioned the general average. The sum, 
 therefore, for which the vessel has to contribute to- 
 wards a loss by articles sacrificed and not replaced 
 during the voyage, adjusted at the port of destina- 
 tion is — what she is worth to her owners in the 
 state in which she arrives. The ship's provisions Provisions 
 (where they are considered as belonging to the ship, h°contribu- 
 as in this country,) are not to be added to the value, Jj^^^j^lf ""^ *'^ 
 though the accident happened at a time when much 
 of them remained on board, because they are destin- 
 ed to be consumed during the voyage, and conse- 
 quently belong to wear and tear. — But in all those 
 cases in which the cargo is obliged to contribute for 
 its value at the time of the accident, without refer-
 
 254 
 
 Of General Average. — Benecke. 
 
 k See above, 
 p. 243. 
 
 Article sacri- 
 ficed included 
 in contribu- 
 tory value of 
 the ship. 
 
 Difficulty of 
 estimating 
 contributory 
 value of the 
 the ship : 
 How esti- 
 mated. 
 
 ence to a subsequent diminution,'' the vessel ought 
 to contribute also for that value, this being the only 
 way of placing all parties upon an equal footing. 
 
 The vessel, moreover, must contribute also for the 
 amount allowed to her by the general average con- 
 tribution, as for cables cut or slipped, &c, for the 
 same reason for which the owner of goods cast over- 
 board contributes for their amount. 
 
 It is a matter of great difficulty, as may easily be 
 perceived, to determine the sum for which the vessel 
 ought to contribute, and very frequently an approxi- 
 mation to truth is all that can be expected. The 
 estimates by surveyors in foreign ports are often in- 
 accurate, and even if made with sufficient care, they 
 give the value at the place where the ship is repair- 
 ed, or where the average is adjusted, without refer- 
 ence to the value at the owner's abode. Under 
 these circumstances, although the valuation of the 
 ship in the policy of insurance be binding only as 
 between the underwriter and the owner, yet, when 
 there is no reason to doubt its correctness, it is fre- 
 quently the best guide for determining the contribu- 
 tory interest. In making this valuation the basis on 
 which the contribution for the ship is fixed, it is to 
 be considered, whether the ship was insured at her 
 full value at the beginning of the voyage, including 
 the outfit, advanced wages and premium, and the net 
 freight ; or without outfit and after deducting the 
 probable wear and tear, and the gross freight. In 
 the first case, the outfit, such as provisions, &;c, wear 
 and tear, and premium, are to be deducted, but not 
 in the latter. — In this country it is customary to 
 insure the gross freight, consequently those charges 
 ought not to be comprised in the insurance of the 
 ship. But as underwriters in this country are always 
 held liable for the provisions, they must be consider- 
 ed as included in the valuation of the ship. And 
 because it is usual to include the premium, and not
 
 Adjustment of General Average. 255 
 
 to deduct for probable wear and tear — though this 
 practice be erroneous — all this, if included in the 
 valuation, must be deducted for the purpose of deter- 
 mining the amount for which the ship is liable to 
 contribute. Besides this, the whole damage sus- 
 tained by the vessel, is to be deducted when the 
 contribution regards articles sacrificed and not paid 
 for during the voyage; (1) but the part only of the 
 damage sustained before the accident which occa- 
 sioned the general average, when the claim for gen- 
 eral average arises out of disbursements ; and the 
 amount of the damage of the vessel allowed for in 
 general contribution is to be added, (a) 
 
 The ship-owner saves by the measure, taken for Contribution 
 the general benefit, so much of the freight as he °^ *^^ freight. 
 finally receives for it, deducting that part of the 
 wages which remained unpaid at the time of the 
 accident, and deducting also those port and other 
 charges which he would- not have paid if the vessel 
 had been lost. This is consequently the amount Net freight 
 for which the freight ought to contribute, and it is contributes. 
 erroneous to deduct also, as is frequently done, the 
 wages paid in advance : for these advances cannot Wages ad- 
 be considered as diminishing the freight saved, with '^'^^'='^'^- 
 which they stand in no connection whatever. (6) 
 
 (1) If the whole amount of the rej^airs of a particular dam- 
 age is deducted, so as to include the wear and tear, nothing, of 
 course, is to be deducted for wear and tear besides. 
 
 (a) In Philadelphia the ship contributes on four-fifths of her Contribution 
 value at the commencement of the voyage, unless a partial °f freight in 
 loss has occurred amounting to one-fifth of that value. The 
 ship contributes on four-fifths of her value at the commence- 
 ment of the risk in New York also. Leavenworth v. Dela- 
 field, Caines' Rep. 573. I do not know of any particular cus- 
 tomary mode of estimating the contributory value of the ship , 
 in other ports in the United States. The general rule is that 
 the ship, as well as the other interests, contributes on its value 
 at the place to which the adjustment relates, without any gen- 
 eral rule, as to estimating this value. See Story's Abbott, c. 
 8, § 15. Phil, on Ins. c. 15, § 10. — Ed. 
 
 (6) The freight pending at the time of the jettison or other
 
 256 
 
 Of General Average. — Benecke. 
 
 Adjustment at 
 an intermedi- 
 ate port : 
 contribution 
 by freight. 
 1 See above, 
 p. 243 and 
 254. 
 
 In those cases in which the cargo and the vessel 
 are bound to contribute for their actual value at the 
 time of the accident, without regard to a subsequent 
 diminution/ the freight also ought to contribute, 
 without regard to the circumstance of its being ul- 
 timately earned or not, the whole of its amount, 
 after deducting the probable amount of wages yet to 
 be paid, port-charges, &c. The same reasons which 
 in those cases determine the contributory interest of 
 ship and cargo, apply also to the freight. — Thus, if 
 a vessel meet with an accident of the nature of a 
 general average in the earlier part of the voyage, 
 and this be settled at the loading port, the freight is 
 liable in the manner just described, if the ship con- 
 tinue her voyage. I cannot approve of the reason- 
 ing of those who contend that the ship and cargo 
 are the only property at stake : for although no 
 freight is due at the time of the accident, yet its 
 becoming due afterwards depends upon the safety 
 of the shijj and cargo ; the freight would be lost 
 with the cargo, and consequently it is at stake. It 
 is true that freight will be earned only in the case of 
 arrival, but in the same sense it may be said that 
 the cargo is of value to its proprietors only in the 
 case of arrival. It is in fact the possibility only of 
 the ship and cargo ultimately arriving which is bought 
 at the expense of the disbursements which are made, 
 and must be paid for by the parties independently of 
 the future fate of their property, and the freight is 
 exactly in the same predicament. 
 
 Freight of 
 goods landed. 
 
 sacrifice contributes to the average. I Phil. Ins. 360. And 
 if wages and provisions are to be subsequently expended in 
 order to save tlie freight, the expense of them is to be de- 
 ducted in ascertaining the amount on which freight is to con- 
 tribute. 1 Phil. Ins. 361. 2 id. c. 15, § 11, No. 2. And in 
 case of a part of the freight being earned and due at the time 
 of the jettison, as by the previous discharge of a part of the 
 cargo, only the freight of the goods remaining at risk con- 
 tributes. 2 Phil. Ins. c. 15, § 8, No. 1. — Ed.
 
 Adjustment of General Average, • 257 
 
 In the case of recapture (which, as has been shown Freight con- 
 
 ~" "" " " tributes fo' 
 
 recapture. 
 
 before, falls withm the description of cases just men- ^'^'^'^^^^ f°' 
 
 tioned), it has been determined that the freight must 
 contribute if it were in the course of being earned at 
 the time.™ "» i Edw. 
 
 When the general average is settled at the port of 223™ ^^ ^ 
 loading, and the freight has been paid in advance, it 
 is customary in this country to consider it as a part of 
 the value of the cargo, and to add it to the amount 
 for which the latter has to contribute. No deduc- 
 tion is made of a proportional part of wages yet 
 to be paid, probably because the mariners are held en- 
 titled to wages in proportion to the freight advanced, 
 although the ship happen to perish before her arrival 
 at the port of delivery." But the practice of sub- J/^^^°"j ^• 
 jecting the freight paid in advance to contribution § 3. 
 would be altogether erroneous, if the freight pay- 
 able after arrival were not equally liable to it ; for 
 by paying the freight in advance, the value of the 
 merchandize at the port of loading cannot be said 
 in fact to have been increased, (a) 
 
 When a ship is chartered for the voyage out and ^f°"fJ"^J"ij^°" f 
 home, under a stipulation that no freight is to be payable" only 
 paid for the carriage of the outward-bound cargo, °"j^^J^y ""X^he 
 unless the ship bring back her homeward-bound car- ships deiiver- 
 go in safety, it is a question, whether and in what |."fgo 
 proportion the freight ought to contribute to a gen- 
 eral average which takes place upon the outward 
 voyage. — In a case of this description the underwriters Wiiiiams v. 
 upon the ship, which had been insured on the outward co"i Mauie 
 voyage only, contended that the freight should con- & s. 3i8. 
 tribute to the general average, which the; assured re- 
 sisted upon the ground, that the homeward freight 
 could not be liable for general average, which had 
 
 («) This rule ouf^lit at least to be confincfl to a case of ad- 
 vance of freigiit, not to be recovered back in any event. See 
 2 Phil. Ins. c: 1.5, § 12, No. ^5. — En. 
 
 33
 
 ficulU 
 
 258 Of General Average. — Benecke. 
 
 been incurred upon tlie outward voyage. The court 
 of King's Bench adjudged, that the whole freight 
 was to contribute, the whole of it having been saved 
 by the measures taken for the general benefit, but 
 they appeared to lay great stress upon the circum- 
 stance of the freight not being in uncertainty, but 
 actually gained at the time of the trial. («) 
 Freightshouid j^ \^^ howcver, with all deference, my private 
 tioned. Opinion, that in cases of this description the freight 
 
 ought to be divided, notwithstanding the stipulation 
 in the charter-party, and that such part only ought 
 to contribute as may fairly be presumed to belong to 
 May seem dif- the outward voyagc. Considering, inthe first place, 
 the liability of contributing towards a general aver- 
 age as between the owners of the ship and those of 
 the cargo, without reference to a particular stipula- 
 tion exempting the cargo from contribution, it is not 
 difficult to see, that if the freight were not to con- 
 
 («) If a ship is bound on a trading voyage, loading and dis- 
 charging cargo in small parcels at successive ports, it may 
 be difficult to apportion freight so that only that of a par- 
 ticular passage shall be brought into contribution for a gen- 
 eral average happening on such passage ; but where a whole 
 cargo is delivered and another taken on board at different 
 successive ports, it is easy to apportion the freight as Mr 
 Benecke proposes, and there seems to be very strong reasons 
 in favour of this nale of contribution. And it is not obvious 
 how such an apportionment is to be avoided, in case of dif- 
 ferent parcels of the cai-go being shipped to successive ports 
 of delivery, at each of which other goods are to be taken on 
 board in the place of those discharged. How is it practica- 
 ble in such case to adjust the successive averages that may 
 occur on the successive passages, without an apportionment 
 of the freight 1 It is the duty of the master, in such case, to 
 exact of the consignees of the respective parcels of goods at 
 the several ports, the amount of contribution due on the goods 
 consigned to them, which he cannot do without making an 
 adjustment at the first port of discharge of any part of 
 the cargo ; and such an adjustment can be made only by ap- 
 portioning the freight. The reasons are certainly very strong 
 if not conclusive, in favour of Mr Benecke's doctrine as to 
 apportionment of freight. — Ed.
 
 Adjustment of General Average, 259 
 
 tribute at all, the ship-owner would gain the chance 
 of earning freight at the expense of the proprietors 
 of the cargo ; and that on the other hand, if the 
 whole of the freight for the voyage out and home 
 were made to contribute, the freight would run the 
 double risk of a general average, while that of the 
 cargo were only single : for the risk of a general 
 average taking place upon the voyage out and home, 
 is double that of the same event occurring upon a 
 single voyage. Had the vessel, in the above case, 
 incurred another general average upon her voyage 
 home, the whole freight for the voyage out and home 
 would, according to the same f»rinciple, have been 
 liable to contribute to this also, whilst the outward- 
 bound cargo only would have contributed to the first, 
 and the homeward-bound cargo only to the second 
 general average. 
 
 That the interest of the ship-owner will be greatly 
 injured if he be liable to contribute for the freight 
 out and home, even supposing the whole amount of 
 wages payable at the completion of the whole voyage 
 to be deducted, will also appear from the following 
 observation. Every one will admit, that the sum 
 for which a party is obliged to contribute towards a 
 general average cannot be greater than the sum 
 which, but for the measure taken, he would have 
 lost ; or, in other words, that he cannot be liable to 
 contribute for more than the thing saved is worth to 
 him at that time. When disbursements of the na- 
 ture of a general average take place in the course of 
 a voyage, and that voyage be continued, the parties 
 pay their respective shares, not for actually gaining 
 possession of their property, which still remains ex- 
 posed to future perils of the navigation, but for the 
 probability of their property coming ultimately to 
 their hands. In ordinary cases, where the freight is 
 payable at the port of destination, and the contribu- 
 tory interest is settled according to its real value at
 
 260 Of General Average. — Benecke. 
 
 that place, the risk, which the several parties will 
 have to run before that prohahility is changed into 
 certai7iti/, is the same to all concerned, i. e. the pro- 
 j)rietor of the cargo runs the same risk with respect 
 to the cargo, as the ship-owner with respect to ship 
 and freight ; and after the arrival of the ship and 
 cargo no one has a farther risk to run or farther ex- 
 penses to incur before he gains actual possession of 
 his property. But the case is quite different when 
 the freight is not payable at the place of destination, 
 but is made to depend upon a future contingency, 
 the safe arrival of the ship at the port from which 
 she departed. The cargo is in safety, and the prob- 
 ability of its being saved converted into certainty, as 
 soon as it arrives at its destination. But the freight 
 , will not be in safety before the ultimate arrival of 
 the vessel, and, in order to procure this, the owner 
 will have to pay expenses at the port of destination ; 
 to lay in a fresh stock of provisions for the home- 
 ward voyage ; his vessel will necessarily be dimin- 
 ished in value by wear and tear, and he will run the 
 risk of losing ship and freight upon the homeward 
 voyage, which latter risk will be equal to the insur- 
 ance premium on the ship and the whole freight for 
 that voyage. None of these risks and expenses 
 would have been incurred if the vessel had been lost 
 by the misfortune w hich gave rise to the general av- 
 erage, and consequently the owner cannot be said to 
 have saved the whole freight after the arrival of the 
 ship at the end of the outward voyage. (1) 
 
 In order to elucidate this by an example, let us 
 
 (1) It will hardly be necessary to repeat here that it makes 
 no difference whether ship and freight be insured or not. The 
 rules respecting general average would be the same, even if 
 no insurance existed. They regard only the relations be- 
 tween the cargo, ship and freight, and these cannot be influ- 
 enced by insurance which regards only the safety of an indi- 
 vidual property.
 
 Mjustment of General Average. 261 
 
 suppose the value of a cargo from London to Bom- 
 bay and China to be 100,000/; the value of the 
 ship 52,000/ ; the whole freight for the voyage out 
 and home, payable after the ship's return to London, 
 36,000/; charges and provisions in India for the 
 homeward voyage 4000 ; wear and tear of the vessel 
 on the voyage out and home 2600/ each ; sailors' 
 wages, &c, payable on the ship's arrival in London, 
 3000/. If a general average takes place upon the 
 outward voyage, and the cargo contributes according 
 to its prime cost, although its value may be supposed 
 to have been increased by being transported to a 
 country where it is likely to find a profitable sale, it 
 is evident that the owner contributes for less than 
 what was really saved to him. If it contributes for 
 the value which it has at the place of its destination, 
 it contributes for what was really saved at the time, 
 and is now in the hands of its owners. The same 
 observation applies to the ship. But if the freight 
 were to contribute for £36,000 
 
 or even, deducting wages, &c, payable 
 in London 3,000 
 
 for £33,000 
 
 this would not be the amount of freight 
 really saved at the time, but an amount 
 which, in order to be realized, necessarily 
 required further expenses and risks. The 
 owner will be obliged, for that purpose, 
 to pay for charges and provisions, £4000 
 
 His vessel, supposed to be worth at 
 the termination of the outward 
 voyage, after the wear and tear of 
 that voyage £49,400 
 
 will further lose in value in the 
 homeward voyage 2,600 
 
 2600 
 
 46,800
 
 262 Of General Average, — Benecke. 
 
 Brought forward 46,800 6600 
 This value of the vessel, as 
 well as the freight 33,000 
 
 £79,800 
 he must run the risk of losing on the 
 homeward voyage, which risk we will 
 suppose to be worth 3400 
 
 10,000 
 
 So that his expectation with regard to 
 freight, leaving interest out of the ques- 
 tion, is worth to him only £23,000 
 for which consequently, he cannot be bound to con- 
 tribute as for 33,000/. 
 
 But even supposing the freight to contribute only 
 for 23,000/, still it will contribute too much in pro- 
 portion to the cargo, if the latter contribute accord- 
 ing to its value at the termination of the outward 
 voyage, that is, without the profit expected upon 
 the return-cargo ; for those 23,000/ include the ex- 
 pected profit on freight upon the homeward voyage. 
 In this respect it deserves particularly to be noticed, 
 that in the above case of Williams v. Lond. Ass. Co., 
 the court did not determine as to the amount for 
 which the cargo is liable to contribute. If, in a 
 voyage out and home, London is to be considered 
 the port of destination with respect to freight, the 
 same applies with respect to the cargo, so that, if 
 the freight for the voyage out and home is liable to 
 contribute towards a general average occurring upon 
 the outward voyage, it follows, that not the cargo 
 actually on board, but the value of the return cargo 
 which might have been bought for it, must contri- 
 bute ; for if the ship-owner shall be subject to con- 
 tribute for the expected profit of the voyage, why- 
 should not the owner of the cargo be obliged to do 
 the same? — If, by agreement, the cargo is exempt
 
 Adjustment of General Average. 263 
 
 from contribution, this remark will apply at least to 
 the private interest. 
 
 The court, moreover, laid great stress upon the 
 circumstance of the freight having actually been 
 earned at the time of the trial, from which it seems 
 to follow that there would have been no contribution 
 for freight, if no freight had been earned. 
 
 If, secondly, the question is only as between the 
 underwriters on the ship for the outward voyage, 
 and the ship-owner, as it appears to have been in the 
 case of Williams v. Lond. Ass. Co., the leading prin- 
 ciple will still be the same. The ship-owner is then, 
 as it were, to be separated from the owner of the 
 freight, and the former is represented by the under- 
 writers upon the ship. — At the termination of the 
 outward voyage the risk of the underwriters ceases, 
 and the probability of being benefited by the mea- 
 sures taken for the preservation of the whole is, as 
 to them, changed into certainty at that moment ; 
 whereas the freight will still be subject to the risks 
 and expenses before described. So that if the ship 
 contributes according to her value at the termination 
 of her outward voyage, the freight cannot be obliged 
 to contribute according to its value after the ship's 
 arrival at her ultimate destination. 
 
 Thus it appears, that whenever a similar case oc- 
 curs again, and the general average is to be settled 
 before the ultimate arrival of the ship, the interest 
 of all parties will require to separate the freight of 
 the outward-bound voyage, from that of the home- 
 ward-bound voyage, for the purpose of making the 
 adjustment. 
 
 Indeed it would lead to very singular conse- 
 quences and introduce imaginary values into the ad- 
 justment of averages, if the ship-owner could be 
 liable to contribute for any other freight than that of 
 the goods actually on board, or of such as the law
 
 264 Of General Average. — Benecke, 
 
 considers as being actually on board. A vessel may 
 be chartered for several successive voyages, and if she 
 be lost on the first, it cannot be denied that the owner 
 will lose the profit of all the following voyages. 
 Yet it would be absurd to make him liable to con- 
 tribute for the freight of all the future voyages, be- 
 cause the freighter contributes only for one cargo. 
 — Or a vessel bound from A. toB. maybe chartered 
 to another party, before her arrival at B., for a 
 voyage from B. to C. If a general average takes 
 place upon the voyage from A. to B. would it not 
 be absurd to make the freight for the intended 
 voyage from B. to C. also liable, because it was also 
 at stake ? The new charter-party has no influence 
 upon the risk of the first voyage, why then should 
 it have an influence upon the rates of contribu- 
 tion, (a) 
 Ship sent out When a vessel is sent out in ballast, under char- 
 bringacargo tcr-party, to bring a cargo home, the question, 
 home. whether the freight for the homeward cargo shall 
 
 contribute towards a loss of the nature of a general 
 average, occurring upon the outward-bound voyage, 
 is entirely between the assured and the underwriter ; 
 for a general average, properly speaking, cannot take 
 place when, there is but one party. — It follows from 
 what has been said, that the question ought to be 
 answered in the negative. The circumstance of the 
 ship being or not being chartered for the homeward 
 voyage has no influence upon the danger of the 
 ship in the outward voyage, and ought, therefore, to 
 have no influence upon the contribution, any more 
 than subsequent voyages for which the ship may be 
 destined or chartered after having completed the first. 
 The risk of the vessel terminates, as to the outward 
 voyage, with her arrival at the place of destination ; 
 
 (a) See note above, p. 258. See also as to contributory 
 value of freight, Story's Abbott, ed. of 1829, p. 357, n. 1 ; and 
 2 Phil. Ins. c. 15, § 12. — Ed.
 
 j^djustnieiU of General .Average. 265 
 
 the freight, on the contrary, is subject to all the 
 casualties and expenses connected with the home- 
 ward voyage, before it can be said to be earned. 
 The vessel is a thing really existing at the time of 
 the misfortune ; the freight of the contemplated 
 voyage, on the contrary, exists merely in prospect 
 at that time, and may be frustrated by many occur- 
 rences entirely unconnected with the accident which 
 gave origin to the general average. Supposing it to 
 be frustrated by the failure of the charterer, ought 
 such an event to have any influence upon the obli- 
 gation of the underwriter on the ship for the out- 
 ward voyage ? (a) 
 
 It is true, that when a ship is chartered for the 
 
 (a) The question discussed in the text appears not to be so 
 plain as the author seems to consider it. It appears very 
 distinctly from the cases on this subject [Tliompson v. Tay- 
 lor, 6T.R. 478, De Longuemore v. Phoen. Ins. Co. 10 Johns. 
 R. 127, and other cases cited 1 Phil. Ins. c. 3, § 11.] and 
 so the author states in the next paragraph, that in case of a 
 vessel chartered for a voyage outward and homeward to bring- 
 home a cargo, the insurable interest in freight commences as 
 soon as the vessel breaks ground on the outward voyage al- 
 though she sails in ballast. The whole freight is pending, 
 therefore, and continues to be so during the whole of both 
 passages. It is by no means obvious then, that in an adjust- 
 ment of an average on the outward or homeward passage, the 
 freight ought not to be apportioned and contribute on a pro- 
 portion in each case, upon the principles above urged by Mr 
 Benecke respecting apportionment of freight where it is 
 agreed on for successive passages ; a cargo being carried on 
 each passage. Mr Benecke says, to be sure, that general 
 average is independent of insurance. This is true, but this 
 does not show that freight is not to be considered to be 
 pending and at risk as much and precisely in the same way 
 in respect to average, as to insurance ; the party interested in 
 freight may insure it in the case above stated, because it is at 
 risk and may be lost by perils of the seas ; and does not this 
 reason apply with precisely the same force to a contribution 
 to general average ? It is the very principle on which both 
 the liability to contribution, and the existence of an insurable 
 interest equally depend. — Ed. 
 
 34
 
 266 Of General Average. — Benecke. 
 
 homeward voyage, and freight is insured for the 
 voyage out and home, the underwriter is obliged to 
 pay the freight, in the event of the ship being lost 
 on her outward passage. A measure, therefore, 
 successfully taken for the preservation of the ship on 
 her outward voyage, proves advantageous also to 
 the underwriter upon the freight, and for this reason 
 it seems but just that he should contribute towards 
 the expenses. But here we must again recollect 
 that the circumstance of a party being insured, or 
 not, can have no influence upon the adjustment of 
 general average, the rules of which are entirely in- 
 dependent of insurance, and that the underwriter 
 can have no other obligation with respect to general 
 average than to indemnify the assured for what he 
 was obliged to pay on that account. Insurances on 
 freight have this peculiarity, that sometimes the 
 underwriter is free from contribution, though with 
 respect to him the freight was in fact saved. Thus, 
 when in a voyage protracted by accidents, the wages 
 absorb the whole freight, the owner, and conse- 
 quently his underwriter, contributes nothing for 
 freight, although the latter would have been obliged 
 to pay the full freight if the vessel had perished in 
 the storm which occasioned the general contribution. 
 
 Foreign laws In Hamburgh, the vessel contributes towards a 
 contribu"fon^^ general average, ' according to her true value in the 
 of ship and state iu which she comes from sea, and the whole 
 Hamburgii. freight, deducting wages, pilotage, and other charges 
 ° Tit. 21, art. belonging to petty average.'" The amount of articles 
 replaced is added to the value of the ship. It is 
 customary, though erroneous, to deduct the whole 
 of the wages, those paid in advance as well as those 
 yet to be paid ; but not such as may have remained 
 unpaid upon the outward voyage. 
 In France and In Fraucc and Holland the ship and freight con- 
 tribute for one-half of theu amount. The Code de
 
 Adjustment of General Average. 267 
 
 commerce stipulates this for all cases, even that of 
 ransom, although the Ordonnance expresslj deter- 
 mined that the vessel was to contribute in that case 
 according to her full value, and the freight after de- 
 ducting the victuals consumed, and the wages. ^ It f Code, Art. 
 maj be fairly presumed to have been the intention brd.^Tit. du 
 of the legislators that the ship should contribute for ^^^-'J^^^- "^ ^ 
 one half of its value at the hegitming of the voyage, art. 3; du"^^ 
 and that the other half should be reckoned for wear J*^^- ^^^- ^^• 
 and tear : but even this is not attended to. 
 
 The laws of Prussia, of Genoa, those of Spain con- in Prussia, 
 cernine; the commerce with India, and the insurance ^!f^^' , 
 
 o ' _ and Denmark. 
 
 articles of Copenhagen make the vessel contribute 
 
 for her full value at her arrival, and the whole freight 
 
 after deducting wages and small expenses. i Ac- igcs— ^i870- 
 
 cording to the Ordenanzas de Bilbao (Art. 1 and 2) stat. Jan. i, 
 
 the ship contributes for her full value, as estimated omnia^jacL; 
 
 by competent persons, the freight for one half, and Recopiiation 
 
 the whole of what is paid by passengers, if any. ix; T^rb, 
 
 In Leghorn the ship contributes for half her value ^^y* ^^■ 
 and the freight for one-third ; and when freight is " ^^ ^°™' 
 stipulated for the outward and homeward voyage in 
 one sum, a third only, not of the whole, but of the 
 part actually in danger is liable to contribute. In 
 cases of detention and of reclamation, however, the 
 ship contributes for her whole value.' •" Baidass. iv, 
 
 By the Swedish Ordinance of insurance, the ship -pj^; 4' ^ ^q' 
 is to contribute according to her value as estimated in Sweden. 
 by surveyors upon her arrival. But, if she be valued 
 in the policy, she must contribute according to that 
 value. — A very singular rule, especially if applied 
 in adjustments between the ship-owner and own- 
 ers of the cargo. No mention is made of freight. — 
 The Danish articles (xii) contain the same regulation 
 with respect to the ship as well as to goods valued 
 in the policy. If no valuation is made, the ship is 
 to contribute according to her value at the })lace of 
 departure, or at the time when the order for iiisur-
 
 268 
 
 Of General Average. — Benecke. 
 
 ing her was given. The freight besides is to con- 
 tribute. 
 
 Place of the The proper place for adjustino; a general average 
 
 portofdes- is that of the vessel's destination, after her arrival. 
 
 tination. TYiQ amount of the damage as Avell 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 contri- 
 bution. Moreover, the consignee of goods is always 
 obliged to pay his share of contribution, 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 the general 
 average, after the goods have been delivered. Last- 
 ly, when the parties interested belong to different 
 nations, it is necessary 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 parties are bound to sub- 
 mit to them. 
 
 When a vessel returns to the place or country 
 from which she departed, and continues her voyage 
 after the necessary repairs, it will always be advis- 
 able 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 oblig- 
 ed to pay his share to them at the place and time at 
 
 For jettison, 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. But if the articles 
 thrown overboard can be replaced, it will be evident- 
 ly the interest of all parties to do so, and if they 
 
 Adjustment 
 at port of 
 departure. 
 
 For disburse 
 ments.
 
 Adjustment of General Average. 269 
 
 cannot, the parties whose property is saved will find 
 an equivalent in paying for those articles only ac- 
 cording to their prime cost.' — If all parties belong 9 see above, 
 to the place of departure, no inconvenience can arise p- ^^^• 
 from transmitting, after the ship's discharge, the 
 necessary documents to the place of departure, to 
 have the contribution adjusted there. 
 
 As to adjustments of average made at interme- Adjustment 
 diate ports, without the consent of the parties inter- ^^ '\" V^^®"^' , 
 
 1 • • . T , , 1 I • T mediate port. 
 
 ested. It IS evident that they cannot be bmdmg upon 
 any one, because in no case is there a necessity to 
 proceed to such an adjustment, (a) 
 
 It may, therefore, be considered as a general rule. Adjustment 
 that a general average must be adjusted at the place pi°"e of dis- 
 of discharge after the ship's arrival, if it be practica- charge. 
 ble, (1) and it is one of the duties of the captain to 
 see the losses and disbursements adjusted there by 
 general contribution. Should he be guilty of neglect 
 in this respect, I doubt whether the shipper of goods 
 which are not his property could be made answera- 
 ble for the share of contribution of such goods, al- 
 though he would be liable for disbursements, when 
 the ship and cargo are lost in the prosecution of the 
 voyage, and the master has no lien for them. 
 
 But it is only in cases of gross neglect that the case of one 
 loss must fall upon the captain. The Roman law f^''^^ i'^ihng 
 determmes, that if one oi the parties becomes inca- proponion of 
 pable of contributing towards a general average, his 
 share shall not be borne by the master, but by all 
 
 (a) The author's meaning is that the law of the intermedi- 
 ate port, (that is neither the port of departure nor a port of dis- 
 charge) is not binding in regard to the average. But still in 
 adjustments of general average for disbursements at an inter- 
 mediate port, reference is had to the value of the several in- 
 terests at such port for the purposes of the prosecution of the 
 voyage, that is, not merely the value for sale thei'e. — Ed. 
 
 (1) Emer. II. ch. 19, sect. 15; Roccus, n. 96; Casaregis 
 Disc. 46, n. 64; Frencli Ord. Tit. du jet. art. 6; Code, art. 
 414 ; Hamb. Ord. Tit. 2, art. 6 ; Pruss. laws, «Stc. 
 
 an average.
 
 270 
 
 Of General Average. — Benecke. 
 
 t L. 2 do leg. the parties interested/ — And this, I presume, would 
 ^^°'' be the rule every where, for it is not customary to 
 
 retain the goods of respectable merchants till security 
 be given. (1) (a) 
 
 There can be no doubt that if the master neglects 
 " ^v'^j^°^^°" ^^ ^^^ ^^^ owners of sacrificed property indemnified 
 above, p. 191; by general contribution, they themselves may demand 
 restitution of those who were benefited by the mea- 
 sure." 
 
 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 exceeds a fixed percent- 
 age, whereas in this country they compensate for 
 every loss of that kind however small. — In Ham- 
 burgh the underwriter pays general average only 
 where it amounts to more than 3 per cent after de- 
 ducting the charges of adjustment," i. e. when the 
 contribution paid by the assured, and exclusive of 
 the charges of adjustment, amounts to more than 
 3 per cent of the value in the policy, or (if there is 
 an open policy) of the prime cost of the goods, add- 
 ing the expenses till the goods were put on board, 
 and premium. — The French Code de commerce 
 says, ' No claim for average is admissible unless 
 the general average exceeds one per cent of the 
 value of the ship and cargo.'" The underwriter is 
 obliged to pay in that case, although the general 
 average amounts to less than 1 per cent of the sum 
 
 also Birkley 
 V. Presgrave 
 1 East, 220; 
 Emerigon, 
 I. Go2. 
 
 Liability of 
 underwriters 
 as to general 
 average. 
 
 At Ham- 
 burgh. 
 
 ^ Ord. Tit. 
 21, art. 7. 
 
 By the 
 French code. 
 
 w Art. 408. 
 
 (1) In Hamburgh claims for general average have a prero- 
 gative in cases of insolvency, and are placed in the second 
 class. 
 
 («) The master may retain the goods until the average is 
 settled or secured. Simonds v. White, 2 Barn. & Cres. 805. 
 I apjjrehend there is no authority for the notion that either 
 party can be made liable for the whole, or any part of the 
 contribution due from another. — Ed.
 
 Adjustment of General Average. 271 
 
 insured. — In Amsterdam it was the practice, not to AtAmster- 
 pay averages, either general or particular, unless ^^™' 
 they amounted to 3 per cent, taking them both to- 
 gether. When articles are insured at that place, 
 free from damage, for instance, of 10 per cent, it is 
 usual to stipulate ' free from 10 per cent damage and 
 general average.' Then, if the general average 
 amounts to 1 per cent and the damage to 9, or the 
 damage to 1 and the general average to 9, the whole 
 loss falls U2:>on the underwriter. 
 
 When the contribution is paid according to the underwriters 
 value at the place of discharoe, after deduction of '^^'^'*^ °"'->' 
 
 J. o '' on Vtiluc 
 
 freight and landing charges, and this value is less insured. 
 than the value in the policy, the assured can demand 
 of his underwriter not more than what he really paid ; 
 if it be more, in consequence of a rise of the market, 
 the surplus is profit, for which the underwriter cannot 
 be obliged to pay general average, having received no 
 premium for exjjected profit. 
 
 When the contribution is made according to the underwriters 
 prime cost of the goods, the insurance premium and "ontrTblltion'^ 
 imaginary jDrofit, if any such was comprised in the made by mis- 
 valuation, must not be forgotten to be deducted. — ^^ ^' 
 If the assured, by his own mistake, contributes for 
 a greater sum than he ought, this loss, of course, 
 cannot be at the charge of the underwriter. 
 
 It remains now to consider a question of great Are under- 
 importance, viz. Whether underwriters are liable for fo"eS,ns^of^ 
 claims of general average, as adjusted in a foreign general aver- 
 country, and according to the laws of that country ; ed in a foreign 
 or whether they are liable only for losses of that country ? 
 nature as adjusted according to the laws and usages 
 of their own country ? 
 
 On the one hand it seems to be clear without con- 
 tradiction, that, insurance being a contract of in- 
 demnity, the underwriter ought to indemnify the as- 
 sured for the whole amount of contribution w hich
 
 272 Of General Average. — Benecke. 
 
 he was legally obliged to pay. This amount may 
 either be 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 receives back the same sum which he 
 was under the necessity of paying. It is always 
 tacitly understood in the contract of affreightment, 
 if not stipulated otherwise, that the ship-owner and 
 freighter shall submit, with respect to general aver- 
 age, to the laws of the port of discharge, if the ves- 
 sel arrive there. And even supposing this to be other- 
 wise between a ship-owner and shipper of the same 
 nation, yet when the consignee is obliged to pay gen- 
 eral average according to the law of the place of dis- 
 charge, and the shipper might maintain an action 
 ■ against the owner for what he has paid too much, 
 
 , equity seems to require that this ought to be done at 
 
 the peril and expense of the underwriter. — Besides 
 this, it will be not only diflicult but even impossible 
 in many cases to make up a general average of a 
 ship and cargo bound to a foreign place, according 
 to the rules of the place where the insurance was 
 made. Suppose, for instance, some goods, the prop- 
 erty of British subjects, to be shipped in a foreign 
 vessel with many other goods belonging to foreign- 
 ers, to a place where it is customary to make the 
 goods contribute according to the invoice prices. 
 How is it possible to ascertain in London the value 
 of the ship, the amount of the freight, and partic- 
 ularly the selling price of goods belonging to third 
 persons at the time and place of discharge, into 
 which the British owner or underwriter has not even 
 a right to inquire ? And yet no exact statement of 
 general average can be made in London without 
 those data. 
 
 On the other hand it cannot be denied, that in 
 many places statements of general average are made,
 
 Mjustment of General Average. 273 
 
 not only by individuals but even by persons author- 
 ized for that purpose, and by tribunals of commerce, 
 which are in direct opposition not only to the gen- 
 eral principles, but even to the very laws of the 
 country where they are made ; and the parties too 
 easily acquiesce in such adjustments when the loss 
 arising from them falls not upon themselves but upon 
 their underwriters. 
 
 The proper way, therefore, to do justice to all 
 parties, seems to be, to admit such foreign statements 
 of general average only to which the assured was 
 obliged to submit, and which are made according to 
 the well-known laws and established usages of the 
 place of discharge ; and if any mistake has occur- 
 red to the injury of the assured, which he might 
 and ought to have opposed, to correct the statement 
 according to the law of the place of discharge. All 
 adjustments of general average made at an inter- 
 mediate place, will thus be entirely excluded, (a) 
 
 In Hamburgh, the Insurance companies are bound 
 by their own fundamental rules to submit to foreign 
 adjustments of general average, made by persons 
 duly authorized for that purpose, and this maxim 
 has, not long ago, been confirmed by legal decision. 
 The same rule, as far as I have been able to learn, 
 is followed in all foreign countries, (1) and indeed 
 it is a natural consequence of the principle, that the 
 underwriter engages to indemnify the assured against 
 all losses not proceeding from the fault or neglect of 
 the assured or his constituents, also against losses 
 by sovereign power. 
 
 (a) Some insurance companies in the United States agree 
 to reimburse the amounts paid under foreiiru adjustment. 
 1 Phil. Ins. 367. — Ed. 
 
 (1) Unless there be a stipulation to the contrary in the pol- 
 icy, as is the case in those of the Insurance companies at 
 Paris. 
 
 35
 
 274 Of General Average. — Benecke. 
 
 What the law is in England, in this respect, may 
 best be seen by the following decisions : 
 Waipoie V. The holder of a Respondentia bond upon goods in 
 
 7th Ed. 629. ^ Danish ship, who had been obliged to pay 6/, 155 
 per cent as a general average, brought an action 
 against his underwriter to recover that amount. 
 Lord Kenyan, Chief Justice, said, ' By the law of 
 England, a lender upon respondentia is not liable to 
 average losses. But the Danish consul has proved 
 that he received a judgment of the court of Copen- 
 hagen, the decretal part of which proves the law of 
 Denmark to be, that lenders upon respondentia are 
 liable to average. — It seems as if, in this case, the 
 underwriters were bound by the law of the country 
 to which the contract relates.' Verdict for the plain- 
 tiff. 
 Newman v. Ill ^ subsecjueut casc a ship had put into Leghorn, 
 Tth'ed *G3o"^^' ^" intermediate port, to repair, and the captain, 
 being owner, had presented a petition to the court 
 of Pisa, to adjust the general average, which was 
 done according to the rules of that place, by which 
 the cargo contributed at its full value, the ship at 
 one half, and the freight at one third, and the sea- 
 men's wages and provisions, while in port, had been 
 admitted as part of the general average. The plain- 
 tiff called several brokers, who said, that in repeated 
 instances they had adjusted averages under similar 
 sentences of the court of Pisa, and the underwrit- 
 ers, though with reluctance, had always paid them. (1) 
 — Mr Justice Buller said, ' On the general law the 
 
 (1) I fully agree with Mr Stevens (Sup. p. 2-24) that the 
 circumstance of such claims having frequently been settled at 
 Lloyd's in that manner, perhaps as a matter of favour, ought 
 not to have been admitted as substantiating the fact of a set- 
 tled usage. The adjustment at Pisa was the voluntary act of 
 the captain, and the question, I think, ought to have been, 
 whether underwriters are liable for losses arising from such 
 acts of the captain.
 
 Adjustment of General Average. 275 
 
 plaintifif would fail ; but in all matters of trade, 
 usage is a sacred thing. I do not like those foreign ^ 
 settlements of average, which make underwriters 
 liable for more than the standard of English law. 
 But if you are satisfied it has been the usage, upon 
 the evidence given, it ought not to be shaken.' The 
 plaintiff had a verdict accordingl}'. 
 
 This point has in a recent case undergone a full Power v. 
 discussion in the court of King's Bench. — Goods 4 Mauie & s. 
 belonging to a Portuguese were insured at and from ^'^^■ 
 London to Lisbon. The ship on her voyage met 
 with tempestuous weather, and was forced to run 
 into Coives, there to repair. The assured was obli- 
 ged, under the authority and orders of the com- 
 petent court at Lisbon, to pay a considerable sum 
 as contribution, for articles which according to the 
 law of this country do not belong to general aver- 
 age. It was argued for the plaintiff that the de- 
 cree of the court of Lisbon was of itself conclusive 
 in favour of the plaintiff's right. The court of 
 King's Bench, however, decided that it was not. 
 Lord Ellenborough said, ' This contract must be 
 governed in point of construction by the law of 
 England, where it was framed, couched as it is in 
 the terms of an instrument in general and familiar 
 use, and of known meaning in England, unless the 
 parties are to be understood as having contracted on 
 the foot of some other known general usage amongst 
 merchants relative to the same subject, and shown 
 to have obtained in tlie country where by the terms 
 of the contract the adventure is made to determine, 
 and where a general average (if such should, under 
 the events of the voyajje, be claimed) would of 
 course come to be demandable. Now without pro- 
 nouncing ivhat 'might have been the effect of a state- 
 ment in this case (if it had contained such) that it 
 was the known cmd invariable usage amongst mer- 
 chants at Lisbon, the port of discharge, to treat losses
 
 276 Of General Average. — Benecke. 
 
 and expenses of the kind and description which are 
 specif ed in the case, as the subjects of general aver- 
 age, we cannot but observe that the case contains 
 no allegation of fact whatsoever on this head, but 
 merely states a decree of the court of Lisbon, which 
 proceeds upon the assumption of this supposed fact 
 as its foundation. And although, by the comity 
 which is paid by us to the judgment of other courts 
 abroad of competent jurisdiction, we give a full and 
 binding effect to such judgments, as far as they pro- 
 fess to bind the persons and property immediately 
 before them in judgment, and to which their adju- 
 dications properly relate, yet we feel that we should 
 carry that principle of comity farther than reasonably 
 ought to be done, or even hitherto has in practice 
 been done, if we should draw from the recitals of 
 facts and usages which are contained in those judg- 
 ments, general evidence of the existence of such 
 facts and usages, and allow them to be available for 
 all causes and purposes, and consider them as appli- 
 cable to and obligatory upon other persons than the 
 immediate parties to those judgments, in which 
 these recitals occur. Here the underwriters have a 
 right to insist, as this defendant does insist, that 
 the general average to which alone their indemnity 
 is confined, is general average as it is understood in 
 England, where this contract of indemnity was form- 
 ed ; no other distinct and different sense and use of 
 that term being proved in evidence to obtain in 
 * point of fact and to be generally adopted by usage in 
 
 the country where the contract was to determine, 
 viz. Lisbon, the general laws and practice supposed 
 , to authorize this demand of general average being 
 only rscited in the terms of another judgment against 
 the assured, and not alleoed or proved as a fact in 
 this present case, and which recital in the judgment 
 we are of opinion is not a competent medium of
 
 Adjustment of General Average. '2,11 
 
 proof for this purpose. The consequence is, that 
 there must be judgment of nonsuit in this case.' 
 
 It has been very frequently inferred from this de- 
 cision that English underwriters are in no case liable 
 to pay general average according to the laws and 
 usages of the place of discharge, and that their lia- 
 bility is confined to the amount of contribution 
 which would have been paid according to the law 
 and usages of this country, if the voyage had ter- 
 minated here. But it appears quite clear to me that 
 such was not the meaning of the court. The only 
 ground of decision in this case was, that the alleged 
 usage at Lisbon was not proved to the satisfaction 
 of the court, and the very words of Lord Ellen- 
 horough must lead to the conclusion, that the de- 
 cision of the court w ould have been different, if the 
 law and usage of Lisbon had been proved in a satis- 
 factory manner. — It was certainly with great pro- 
 priety that the court rejected the decree of the court 
 of Lisbon as evidence to prove the existence of the 
 alleged usages. I have myself had an opportunity 
 in more than one instance to observe, that in the 
 decrees of foreign courts several items had been ad- 
 mitted as general average, which, according to the 
 very laws of their country, ought to have been re- 
 jected. («) 
 
 («) The liability of underwriters to reimburse the as- 
 sured the amount paid under an adjustment made in a foreign 
 port has come under discussion in the United States. In 
 case of an adjustment of an average at Lisl>on, the port of 
 delivery, for goods thrown overboard that were carried on 
 deck, it was decided in New York that the Lisbon adjustment 
 was not binding upon the shippers and insurers of the rest 
 of the cargo, by the laws of New York. Lenox v. United Ins. 
 Co. 3 Johns. Cas. 178, cited more fully, 1 Phil. Ins. 368. 
 But in another case that arose in the same court respecting 
 an average adjusted also at Lisbon, in which tlie apportion- 
 ment there upon the different contributory interests was dif- 
 ferent from what it would have been by the laws of New
 
 278 Of General Average. — Benecke. 
 
 York, it was held that the Lisbon apportionment was bind- 
 ing upon the parties in New York. Strong v. N. Y. Fire- 
 men Ins. Co. 11 Johns. 323. In a case that occurred in 
 England, in 1824, between the owner of the cargo and the 
 ship-owner, in relation to an adjustment of general average at 
 St Petersburg!), the port of delivery, in which the owners of 
 the cargo were compelled, by the laws of Russia, to con- 
 tribute for a loss for which they would not have been liable to 
 contribute by the laws of England, a suit being brought in 
 England by the owners of tlie cargo against the ship-owner 
 to recover back the amount so contributed, the court gave a 
 decided opinion against the right of recovery in such case, 
 on tbe ground that an adjustment of a general average is 
 subject to the laws of the port of delivery, and that the parties 
 are accordingly bound by such an adjustment made in conform- 
 ity to such foreign laws. Simonds v. Larder, 2 B. & C. 803 ; 
 S. C. 4 D. & R. 375 ; 9 Sarg. and Lowb. 2-50, cited 2 Phil. 
 Ins. c. 15, § 13. A similar decision was given in Dalgleish 
 and others v. Davison, 5 D. &- R. 6, 2 Phil. Ins. c. 15, § 13. 
 So in the case of Depeau v. Ocean Ins. Co. 5 Cowen, 63, 
 cited 2 Phil. Ins. c. 15, § 13, the vessel on a voyage from 
 Havana to Rotterdam, put into Halifax in Nova Scotia iu 
 distress, and for repairs, when a part of tbe cargo was sold to 
 pay the expenses, for which a general average was adjusted 
 at Rotterdam, and it was held that the underwriters on the ship 
 were liable to indemnify the assured on the basis of the Rot- 
 terdam adjustment. The particulars of this loss are not 
 given, but as the case states that the ship was repaired at an 
 expense exceeding half of her value, the bulk of the average 
 was probably for repairs, and there is no intimation in the 
 case that these re|)airs were general average according to the 
 laws of New York ; but on the contrary, the case seems to 
 leave no doubt that they were particular average. The case 
 therefore seems to amount merely to this, that where, by a 
 foreign adjustment the cargo and freight have contributed in 
 general average to a loss which by our laws is a particular 
 average on the ship, the underwriters on the latter shall be 
 liable only to indemnify the assured for the proportion not 
 paid by freight and cargo in the foreign port under the foreign 
 adjustment. But in the case of Shiif v. Louisiana Ins. Co. 
 6 Martin N. S. 029, cited 2 Phil. Ins. c. 15, § 13, where the 
 cargo was assessed in a general average adjusted at Lisbon 
 for damage to the ship by carrying a press of sail, it was held 
 that the underwriters on the goods, at ^ev,' Orleans, wei-e not 
 liable to reimburse the assured, because this was not a loss 
 insured against in the policy. 
 * In regard to the liability of the underwriters in cases of this
 
 Adjustment of General Average. 279 
 
 description, upon general principles, it seems that as far as 
 the foreign adjustment is compulsory, and made according 
 to the laws of the port of delivery, and is for a loss hy a peril 
 insured against, it will be binding upon the underwriters. 
 But if the foreign consignee is compelled by the laws of the 
 place to contribute for a greater amount of loss than the 
 owner of the cargo would be liable to contribute for by our 
 laws, this is no ground of claiming a contribution from the 
 underwriters on the ship towards a greater aggregate aver- 
 age than they would be liable for by our laws. For example, 
 if a general average is made in tlie aggregate to be $2000 
 at Hamburgh, and the consignees there contribute for the 
 cargo upon that basis, this may be conclusive on the under- 
 writers of the cargo in the United States, but it is no ground of 
 claim against the underwriters on the ship in tlie United States, 
 upon the basis of the same aggregate amount of general aver- 
 age, if by our laws the amount would be but $800. The 
 contract of insurance like every other is expounded according 
 to the laws of the place where it is made. But as far as 
 the stipulations of the contract come under the jurisdiction 
 of the laws and tribunals of foreign countries, and are ad- 
 judicated upon or settled according to the laws of such coun- 
 tries, the parties ought to be bound. This is the general doc- 
 trine in such case, and it is particularly laid down by Lord 
 EUenborough, in the case of Power v. Whitmore, [4 Maule 
 &. S. 141,] cited above in the text, in respect to an average 
 conti-ibution. Most of the cases, though not all, in which the 
 claim arising on a foreign adjustment has been rejected, are 
 cases in which either tlie loss contributed for in the foreign 
 adjustment was not insured against in the policy, according to 
 the construction put upon it in the place where it was made ; 
 or it did not appear that the foreign adjustment was made 
 according to the laws of the foreign port ; or it did aj)pear 
 that, in respect to the claim in question, and the subject in- 
 sured in the policy on which the claim was made, the assured 
 had not been compelled to settle, and had not actually con- 
 tributed abroad, on the basis of the foreign adjustment. — Ed.
 
 280 
 
 CHAPTER VIII. — Adjustment of Particular 
 
 Average on Goods. 
 
 [Stevexs, c. 2.] 
 
 Entitled ' Of Particular Average, or Partial Loss 
 on Goods. ^ 
 
 It has been endeavoured to be shown, that the 
 term ' average' is not applicable to any other species 
 of claim, than that for a sacrifice made when the ship 
 is in imminent danger, or for expenses incurred for 
 the general benefit. And which claim is to be 
 divided by a given ratio, or a mean proportion, and 
 to be borne by all the parties concerned in the ad- 
 venture, and who were proportionably benefited 
 thereby. 
 Particular The foicigu ordinauccs and writers use the term 
 
 defimKL ' particular average loss,' or ' simple average,' mere- 
 
 ly in opposition to a general, — or 'gross average 
 loss ;' contenting themselves with assigning as a 
 reason for this distinction, — that the one species of 
 loss is to be borne generally, by all the parties con- 
 cerned, and the other particularly by one of them. 
 But they do not define how the word ' average' can 
 be applicable to any particular species of loss. (1) 
 
 alRob.Adm. (1) The learned juclore of the Admiralty Court says,* — 
 Rep. p. 293. ' Simple or liarticular average is not a very accurate expres- 
 sion ; for it means damage incurred by or for one part of the 
 concern which that part must bear alone ; so that in fact it is 
 no average at all, but still the expression is sufficiently under- 
 stood and received into familiar use.' The term Average 
 Loss is quite unsettled as it relates to what has been called in 
 the courts of law, 'that very strange instrument,' — a policy 
 of insurance. In the law all kinds of expenses are recovera- 
 ble short of a total loss, under the head of average. In foreign 
 documents, when a ship puts into a port with damage, she is 
 said to have arrived ' under average.'
 
 Adjustment of Particular Average on Goods. 281 
 
 The meaning of the term ' particular average' as 
 used in Lloyd's, is a partial loss of the ship, cargo, 
 or freight, of any kind whatsoever, and arising from 
 any cause. (Except from shipw^reck — which is 
 calle3~ 'a^ salvage loss.') — The term therefore in- 
 cludes, — first, — a total loss of a part of the thing 
 insured; and secondly, — a pecuniary loss to the 
 proprietor of it, arising from the effects of sea- 
 damage. 
 
 If we retain the term, which from its apparent 
 usefulness, as a distinctive appellation, we may per- 
 haps be justified in doing ; it should be expressly 
 confined to the latter kind of loss, or rather to the 
 mode of adjustment. There can be no objection to 
 the expression, though confessedly anomalous, if we 
 give to it a determinate signification. 
 
 Still the w^ord ' average,' as it appears at the foot 
 of our policies, will need some revision, if at any 
 time the wording of the instrument itself should un- 
 dere;o an alteration. 
 
 The term ^particular average^ is used in this Es- ■ ' 
 say, to signify the mode of adjusting a loss on goods 
 arising from the article being deteriorated in value, 
 in consequence of its being sea-damaged ; — and the 
 term '•partial loss,^ to signify a total loss of part of T , 
 the thing insured. "^ 
 
 There are two modes of adjusting a loss on goods Two modes of 
 sea-damaged, — these are as follow: — First, — Bj i.^sfiva^ge" 
 deducting the net proceeds of sale of the damaged loss^ 2. bom- 
 goods from the amount of the interest ; which is proceeds of 
 either the value in the policy, or the invoice cover- ^'^^^"^j'^^J'^ 
 ed with the premium, &c. Secondly, — By a com- 
 parison of the amount of the sales of the damaged, 
 with a pro forma account of sales of the same arti- 
 cle, if it had arrived in a sound state. The first
 
 282 Particular Average on Goods. — Stevens. 
 
 mode of adjustment is in point of fact ' a salvage 
 loss ,"' — the second is that which it is proposed shall 
 continue to bear the appellation of ' a particular 
 average.^ 
 
 Magens has 
 given most 
 information 
 on adjust- 
 ments. 
 
 The foreign writers afford us very little informa- 
 tion on the subject before us ; and the books on the 
 law of insurance in this country give us no idea that 
 can be acted on, of the mode of ascertaining the 
 amount of loss, or the claim on the underwriter, — 
 i. e. the ""principles of adjustment. For almost the 
 whole of our information on the stating of averages 
 we are indebted to Magens ; who has gone a very 
 considerable length into the different modes of ad- 
 justing claims, and has thrown more light on that 
 subject than all the other writers on insurance up to 
 the present day. Probably the paucity of informa- 
 tion in our modern books, which profess to treat 
 only of the law of insurance, arises from its appear- 
 ing to the learned authors to be not within their 
 province to descend to matters of calculation. 
 
 Salvage loss 
 defined. 
 
 Sect. I. Of a Partial Loss, commonly called 
 
 a Salvage Loss. 
 
 A salvage loss, (from which this mode of adjust- 
 ment is derived,) — is that kind of loss which it is 
 presumed would, but for certain services rendered 
 and exertions made, have become a total loss. The 
 charges incurred are called ' salvage charges (1),' — 
 
 (I) The most prominent among salvage charges, in case of 
 shipwreck in foreign countries, is the seamen's wages ; for 
 which they (the seamen) have been considered as having a 
 lien on the proceeds of sale of the hull of the ship and her 
 materials ; and if the amount of these be not sufficient, the
 
 Adjustment of Particular Average on Goods. 283 
 
 the property saved is ' the salvage,' — and the dif- 
 ference between the amount of the salvage (after 
 deducting the charges,) and the original value of the 
 property is called ' the salvage loss.' 
 
 deficiency is to be made up from the proceeds of the cargo. ^ j Weskett 
 There is no foundation for this in the law of England. 592. ' 
 
 * Freight is the mother of wages'« — if freight be nut earned e Pr. Eq.b. 1 
 wages are not due ; and the freight can only be earned by p. 1, c. 4, § 5. 
 the contract being fulfilled: — i.e. by the master delivering 
 the cargo, or causing it to be delivered, at the port of dis- 
 charge. The error noticed above, may have arisen from the 
 generally received, and correct idea, of the seamen's wages 
 being secured to them on the bottom of the ship ; ^ but by this is r 2 Rob. Adtn. 
 only meant — that on the ship's arrival, i. f. on the voyage Rep. p. 237. 
 being performed, — if the owner be insolvent, the seamen may g 12 Ann St 
 attach the ship, and sue in the Admiralty Court for the amount 2, c. 18, made 
 of their wages. perpetual by 
 
 But when it is said, that in case of shipwreck the seamen nrX^' V, 
 . , 1 , . ^ „ . , . , 2b Geo. 11. 
 
 are not entitled to their wages as a matter 01 right, i. e. that h Lgp. Rhod. 
 
 they have no lien on the salvage for them, — it must be far art. iil. Leg. 
 
 from the wish of every friend to the success of maritime ad- P.^^r- art. 
 
 ventui'e, that the seamen should not receive a remuneration w- 1 / 
 
 for their trouble and the risk to which they may expose them- Hanseatic 
 
 selves, in saving and preserving the wrecked property; — Ord. tit. 9, 
 
 there is no doubt that they are fully entitled to an equitable ^""^ 5. Ord. 
 
 consideration to the full extent of the services performed by .^^"^^l L -e 
 
 them, and this should be deducted from the proceeds of the de Malelots ' 
 
 property saved. Indeed when the accident happens in the art. 9, and 
 
 British dominions, provision is made by statute,? that the mas- yalm thereon. 
 
 ter, the officers, and the mariners shall be reasonably gratified ^j.^ ^^' t ^'^" 
 
 for their trouble and risk. Wish. art. 
 
 The old marine laws,'' &,c, perhaps from allowing freight xvi, &c. Ord. 
 
 according to the length of the voyage performed, (pi'o rata France, and 
 
 itineris peracti,') are favourable to the principle of giving the ^^^^^ ^^^' 
 
 seamen their wages to the time, out of the proceeds of the gup. Roccus, 
 
 sale of the vessel, in case of shipwreck ; and some add a Not. Ixxxi, n. 
 
 reasonable sum to carry them home, if they assisted to the '^^-; ^'^> ?"^, 
 , , ^ ^, . • • .c^i I • 1 .ti authors cited 
 
 best of their power in saving the ship and cargo ; otherwise, j ^^-^^^ j^ 
 
 they were to have neither wages nor reward. But the marine Mansfield. 
 
 laws of all countries agree, that if the ship and cargo be en- 2 Bur. Rep. 
 
 tirely lost the seamen shall lose their wages. And by the ^^^' ^^'jo 
 
 common law of England, 'if the freighter lose his cargo, the Consolato del 
 
 mariner ought to lose his wages. ''^ Mare. Abbott, 
 
 It is said, that ' upon general principles, the seamen are p- 266. 
 
 entitled to no wages if no freight be earned.' — ' The claim of ^ fgJg^^P' 
 
 the seamen on the ship seems not to extend to a case, where-
 
 284 Particular Average on Goods. — Stevens. 
 
 Salvage loss In general, a salvage loss of goods is, when in con- 
 qu™ntf/in scquence of shipwreck or the perils of the sea, the 
 case of ship- vessel is prevented from proceeding on her voyage, 
 and the cargo, or the part that is saved, is obliged 
 to be sold at a place short of the port of destination. 
 In such cases, though the property be not abandon- 
 ed to the underwriters, the principle of abandonment 
 is assumed, and is in fact acted upon ; — the property 
 saved does not indeed actually belong to the in- 
 
 iii, according to the principles of the law upon which their 
 I Abbott, Part claim is founded, no wages are payable to them.'^ 
 iv, c. 2, § 6. But the strongest argument for their not being entitled to 
 
 wages in case of shipwreck is, the agreement between them 
 and the master, by which they bind themselves not to de- 
 mand, and agree that they will not consider themselves en- 
 titled to their wages, or any part thereof, until the arrival of 
 the ship, and her discharge, at the port of destination. If 
 however part or the whole of the cargo were saved, and by 
 being carried on to the port of destination the freight were 
 earned — the seamen should be paid their wages in proportion 
 to the amount of the freight received, after deducting therefrom 
 the charges of salvage and carriage of the goods to the port 
 of discharge, 
 m Campbell's A cause was lately decided,™ from which it would seem 
 Rep. N. P. that in 'case of shipwreck short of the port of destination, a 
 P- ^^'- distinction is made between seamen being hired by the mojith 
 
 and by the voyage. Now it is well known, as before men- 
 n Ut supra, § tioned," that in most cases seamen are hired for the voyage 
 1, art. 2. but paid by the month ; — and this distinction should always 
 
 be kept in view in matters of this nature. 
 
 The Spanish seamen, who appear to be more independent 
 than those of other nations, guard against any loss of wages 
 from accidents of this nature ; for they will not quit any of 
 the ports in New Spain till a box of dollars, (called thence, — 
 ' Caxa de Soldada,^) he put on board for the express purpose 
 of paying them, (or rather, of their paying themselves,) their 
 wages in case of sliipwreck. In illustration of this, we may 
 quote a sea-protest made lately on the loss of a Spanish ship, 
 which says that ' the crew escaped saving nothing but the 
 Caxa de Soldada, put on board for the payment of their 
 wages.' This is probably a vestige of ancient commerce ; for 
 when navigation was comparatively but little known, ship- 
 wrecks were much more frequent, and seamen would make 
 their own terms with their employers.
 
 Adjustment of Particular Average on Goods. 285 
 
 surers, as where a regular abandonment is allow- 
 ed, (1) but it is to all intents and purposes treated 
 as if it did, and all the charges incurred are borne 
 by them. The principle acted on is this ; — the un- 
 derwriter pays a total loss, and takes the proceeds of 
 the goods. 
 
 Both in the abstract and in practice, this mode is applicable 
 of adjustment appears but ill calculated to give the case to ''"^ 
 merchant his indemnity in case of partial loss on damage on 
 
 ,,,.. -^ , , '^ -, ,, goods. 
 
 goods by then^ bemg sea-damaged ; — and accordmg- 
 ly, there is but one case that can justify a claim of 
 this nature being calculated on the basis of a salvage 
 loss. 
 
 This case is as follows : — when a ship on her i 
 voyage puts into an intermediate port in distress, to 
 refit, &c, and on unloading the cargo it is discovered 
 that some of the goods are damaged, which, to pre- 
 vent farther deterioration, are surveyed and sold on _ 
 the spot. — In such a case, the claim must be adjust- ' /^ 
 
 ed as a salvage loss, and all 
 
 the charges 
 
 must be 
 
 borne by the insurers; — for no particular average 
 claim, according to the definition above stated, can 
 be made up when the goods are sold at any other 
 place than the port of destination. Here the dam- 
 aged goods are really (not, as the term is often mis- 
 applied,) sold on account of the underwriter (2), he 
 
 ^/ 
 
 (1) It should be always understood that where there is no 
 abandonment, the salvage is always for the benefit of the as- 
 sured, and not of the underwriters." If this were generally o 4 Taunt. 
 known, we should have fewer sales made ' on account of the Rep. 803. 
 underwriters,' which, in almost every case is erroneous. 
 
 (2) It is customary, (as alluded to in the preceding note,) 
 not only in foreign countries but in England, for persons 
 effecting sales of damaged goods, to state that they are sold 
 ♦ on account of or '■for the hencft of the underwriters ;' and 
 this is often done without the parties even having the means 
 of knowing that the property is insured. Such a practice 
 ought not to be continued : the correct expression in such 
 cases is, ' on account of the concerned.'
 
 286 
 
 Particular Average on Goods. — Stevens. 
 
 paying all the charges, and even the freight, (1) and 
 the merchant is indemnified as for a total loss ; — 
 
 1 Abbott, 
 p. iii, c. 7, 
 § 10, and 
 auth. cited. 
 
 ' Pothier, 
 Sup. Tr. C. 
 de L. n. 121. 
 
 ' Ut sup. c. 1 , 
 §l,art. 1. II 
 Cons, del 
 Mare, c. 91. 
 
 (1) According to law and custom, uo freight is due unless 
 the master shall have complied with his contract, as expressed 
 in the bill of lading, by delivering the goods to the consignee 
 at the port of destination, — yet, if the goods were received 
 by the merchant, (or, which is the same thing, by his agent 
 authorized for that purpose,) at a port short of the destined 
 one, either the full freight or freight pro rati itineris should be 
 allowed.'' In the case of damaged goods landed and sold at 
 an intermediate port, it being for the benefit of the proprietor 
 that they should be there gold, the freight must be paid; — it 
 being taken for granted that it is always for the interest of 
 the proprietor, (and the underwriter, if insured,) that the 
 goods should be sold; — but this freight should not be in pro- 
 portion to the proximity to, or the distance from, the port of 
 discharge ; but the full freight, for that is what is sacrificed 
 by the goods being sold at the intermediate port. This is the 
 only case where the underwriter on goods ought to pay the 
 freight, — because it is for his interest to do so. But it is to 
 be understood that the ship must actually proceed on the 
 voyage and arrive ; for if she cannot earn her freight the 
 owner has not suffered any loss by the sale at the intermediate 
 port. And therefore the loss would fall on the underwriters 
 on freight (if it were insured,) and not on the underwriters on 
 goods. — Pothier says,"" — If the merchants shall take out their 
 goods during the voyage, (alluding to the ancient custom of 
 merchants sailing with their goods,*) the whole of the freight 
 becomes due the same as if they had remained. 
 
 This relates to goods which are merely deteriorated in value 
 by sea-damage, or taken out by the merchant or his agent. If 
 however there were a total loss of any part, the freight could 
 be demanded on only what remained; — the underwriter on 
 the freight (if it were insured) paying the amount of the de- 
 ficiency. But if the goods were so much damaged as to be 
 worthless, though they remained in bulk, it is conceived that 
 the loss of freight should be borne by the proprietor of the 
 goods ; — for as it is only in consequence of the assumption 
 that the underwriter on the goods reaps an advantage from 
 the sale, that he is called upon for the freight; — and, as the 
 practice at present stands, it would seem that there must be 
 an actual loss of the article, or thing insured, before the un- 
 derwriter on the freight is liable ; so this case, from coming 
 under neither of these heads, appears to be an unavoidable 
 mercantile risk which is not provided for. But it may per- 
 haps be urged, that in such a case, the master would have no
 
 Adjustment of Particular Average on Goods. 287 
 
 ex. gr. he receives the net proceeds from the person 
 who effects the sales, and the balance from the 
 underwriter. 
 
 It is only when the damaged goods are, from the when goods 
 necessity of the case, sold at a port short of that of ^"^^ ,®°J,^ 't* % 
 
 -r -I'll • • Vi \ 1 ■'■,..; port short of 
 
 the ship's destmation, (1) that this is a correct or destination. 
 a legitimate mode of adjustment ; — For when this 
 method of calculation is applied to ascertain the 
 claim for loss on damaged goods after the ship's 
 arrival, it is, as will be fully shown hereafter, ex- 
 ceedingly erroneous. 
 
 Sect. II. Of a Partial Loss, commonly called a 
 
 Particular Average. i 
 
 The mode of ascertaining the amount of the claim Adjustment 
 I on the insurers on goods, for loss by deterioration in son'^orpfo- 
 i consequence of sea-damao;e, has had the attention of ceedsof sound 
 
 • ^i- 1 1 • 1 r T 1 Ji ^^^ damaged. 
 
 many intelligent persons both in and out or Lloyd's. 
 It is now agreed, that the only correct mode of ad- 
 justing a loss of this kind, where the ship has arrived 
 
 right to leave the goods at the intermediate port, but ought to 
 carry them on to the port of discharge : tliis would not how- 
 ever relieve the merchant. A case might occur, such for in- 
 stance, as damaged coffee, where it would be dangerous to 
 take the goods on board again ; perhaps in such a case the 
 loss may be considered as tantamount to a total loss of the 
 article by a peril of the sea, — and then the underwriter on 
 the freight would be liable. 
 
 (1) The present practice of Amsterdam as relative to sal- 
 vage losses, is agreeable to that stated above. In the rules 
 established in the Department of Insurance in that city, (art. 
 35,) it is said; — 'If owing to stress of weather, or other 
 accident at sea, any merchandize, whether sound or damaged, 
 be sold at the place of its redemption, and not that of its des- 
 tination, all charges without distinction, as well as that pro- 
 portion of freight allowed for the conveyance of such part of 
 the cargo as may be saved, should be deducted from the pro- 
 duce of the sale thereof, and the deficiency, as given by the 
 net amount of the invoice, will be due from the underwriter.'
 
 288 Particular Average on Goods. — Stevens. 
 
 at, or the goods have been brought to the port of 
 destination, is by comparing the market price of the 
 sound merchandize with the market price of the 
 damaged ; and thus ascertaining the relative depre- 
 ciation in vakie sustained by the merchant from the 
 sea-damage. In the present state of the practice, 
 this needs only to be mentioned to be recognized as 
 correct. It then follows, that the mode of adjusting 
 such a claim on the principle of a salvage loss, cannot 
 be a just one, because it has no reference to the 
 market price; and, consequently, in almost every 
 instance, it gives the assured either more or less 
 than he is justly entitled to ; and the only security 
 that he has against actual loss is in the case of a 
 saving or a losing market. But the result to be 
 , desired, is that which will indemnify him in all cases 
 ■^ , against the depreciation in value of his goods by the 
 I damage sustained, and which may be acted upon in 
 all cases as a general principle. It would, indeed, 
 be easy to produce an instance of goods being dam- 
 aged fifty per cent, or more, which, if adjusted as a 
 salvage loss, would not only free the underwriters 
 from all claim, but leave them gainers by the trans- 
 action, — on the assumption, (as in cases of this 
 nature it is assumed,) that the damaged goods be- 
 come their property. 
 
 But though the mode of adjustment in use has a 
 reference to the market price, it is perfectly under- 
 stood that the underwriter has no concern with the 
 fluctuation of the market ; and therefore, whether 
 they be high or low, it is of no importance to him. 
 The merchant makes use of them merely as scales 
 to show the relative depreciation in value of the 
 damaged goods ; — for (to carry the simile farther,) 
 if sound merchandize of the same quality were put 
 in one scale, and the damaged merchandize in the 
 other, and the sound weighed one hundred pounds, 
 and the damaged but fifty pounds, it would be shown
 
 Adjustment of Particular Average on Goods. 289 
 
 that the goods had lost fifty per cent of their origin- 
 al value ; — and by this means the proportion of de- 
 terioration would be accurately ascertained. 
 
 This may serve to elucidate the present practice, w^hether 
 
 and to show the principle on which all particular c^hamesTre to 
 
 averages are, or ought to be adjusted. — And in point ^e deducted 
 
 of fact, there is no difference of opinion on this, as ce°eds in^ad-° 
 
 , a general proposition ; — the difference arises on the Jesting a par- 
 
 // • r \ 1 1* 11 1/* I ticular aver- 
 
 ' I question or the charges bemg deducted irom the age on goods. 
 sound and damaged sales, — the assured contending, 
 that he has a right to deduct the freight, duties, and 
 landing charges from the sound and the damaged 
 sales, before he ascertains the depreciation in value ; 
 — and the insurer holding, that he has no concern 
 with these charges ; — he guaranteeing the assured 
 against any depreciation in value that the goods may 
 sustain, and nothing more : — i. e. not having in- 
 sured the freight and duties, he ought not to be 
 called on for a loss of any part of them ; — and, 
 more particularly, as by the operation of deducting 
 them from the sales, he is involved in the rise and 
 fall of the markets. Certainly, the assured is cor- 
 rect in asserting, that unless his terms be complied 
 with, he must be a loser by the arrival of the dam- 
 aged goods ; — but it might be answered, — that 
 even if they were, few cases would occur where he 
 would get his precise indemnity.' ' y.»de inf. 
 
 Previously to entering into an examination of this "'' ^^ 
 principle, it may be proper to give a brief history 
 of the subject before us. 
 
 The principle of adjusting a particular average as History of the 
 a salvage loss, would appear from the simplicity of ^ °^^ subject. 
 the operation to have been the original mode adopted 
 by the merchant in stating his claim on the under- 
 writer ; — thus we know, that in those countries 
 where commerce, and consequently civilization, are 
 37
 
 290 Particular Average on Goods. — Stevens. 
 
 of late date, and among all persons who have not 
 well studied the principles of insurance, this mode 
 of adjustment is still approved and acted upon. 
 But as both the merchant and the underwriter be- 
 came interested in the question whether this were 
 the correct method on the one hand of obtaining, 
 and on the other of granting an indemnity, it could 
 not be expected that this erroneous mode of adjust- 
 ment would hold its ground ; but that other means, 
 approximating nearer towards the true principles of 
 insurance, would be discovered and adopted : — for 
 the merchant would find, that if his goods came to 
 a gaining market he could not be indemnified against 
 the damage they received without a reference to the 
 market price of the sound ; — and the underivriter 
 would learn, that by this mode he not only paid for 
 the damage done to the goods, but also gave the 
 merchant a saving price for them when they arrived 
 at a losing market. 
 
 When the Hanse-towns and the Low-countries 
 were the emporium of the commerce of Europe, 
 and their merchants the most acute and the best in- 
 formed of any then in the world, these considera- 
 tions could not fail to occur to them, — and ac- 
 cordingly, there is reason to think that the principle 
 of adjustment by a reference to the market price of 
 the sound goods originated either in Hamburgh (1) 
 
 (1) As it must not be imagined that any thing has been 
 stated contrary to the fact, for the purpose of supporting an 
 hypothesis, the reader is referred to next page, where 
 it will be found that a particular average was adjusted at 
 Hamburgh in 1719, by a dtspacheur of eminence, on the above 
 principle; — though the ordinance of Hamburgh of twelve 
 " Ord. Hamb, years' posterior date, enacts," ' that when any part of goods 
 tit. 12, art. 14. valued in a policy shall be found damaged, they shall be sep- 
 arated from those not damaged, and sold publicly by them- 
 selves whether many or few, and the despochcur of averages 
 shall regulate the damage conformable to the valuation made
 
 Adjustment of Particular Average on Goods. 291 
 
 or in Amsterdam ; and though we have very little 
 satisfactory information on this subject, these ordi- 
 nances avow the principle of the merchant being his 
 own underwriter for the profit accruing on the 
 goods. 
 
 The principle of adjustment either as a salvage 
 loss, or on the comparison of the net proceeds of 
 the sound and damaged goods, appears to have been 
 the generally received doctrine in this country till 
 about thirty years ago. Magens, in his ' Essay on 
 Insurance,' is decidedly favourable to the latter 
 mode, though the adjustment on the gross produce 
 was agitated in his time ; — but from being a mer- 
 chant himself he was well able to judge that the as- 
 sured could not be fully indemnified by this mode. 
 Weskett is also favouralDle to the adjustment on the 
 net proceeds, but his reasoning is inconclusive, and 
 appears to be founded on erroneous data." ' Weskeit, 
 
 I find (from manuscript statements,) that in 1784, age,' p. 2" 
 the principle of adjustment on the gross produce, as 
 the basis of calculation, was then coming into use 
 in Lloyd's ; though it was not generally acted upon 
 there until about twenty years after, when it was 
 recognized by the courts of law. But it is by no 
 means a new doctrine, — for a particular average 
 (on linens, from Hamburgh to Lisbon) was calculat- 
 ed at Hamburgh on that principle, so long ago as the 
 year 1719, by Jurgen Greve, a despacheur of celeb- 
 rity in that city.'"^ And in 1721 we have a state- "^ 1 Mag. p. 
 ment of a particular average made up also at Ham- " 
 burgh, wherein the gross produce is the basis of con- 
 tribution." This average is however adjusted on an I 2 Mag. p. 
 erroneous principle ;■ for the assured claimed the y vide inf. § 
 difference between what the goods would have pro- "'> ^t- ^■ 
 
 in the policy without regarding what the goods not damaged 
 would produce.' Was it intended that this should hold only 
 in case of a valued policy 1
 
 292 Particular Average on Goods. — Stevens. 
 
 duced if they had arrived sound, and what they did 
 produce being damaged, to which were added the 
 extra charges. It is worthy of notice that in 1750 
 a claim for a particular average was adjusted on the 
 gross produce, adding the extra charges to the amount 
 
 5^ 1 Mag. p. of the loss, as is now the custom of Lloyd's/ 
 
 The Amsterdam ordinance (1744) fully recognizes 
 
 a Ord. Amst. the principle :"■ — the words are ; — ' The averag-e or 
 
 art. 3a. ,1 ^ i i i i i • i ^ 
 
 damage on goods that happened durmg the voyage 
 by outward misfortune, shall be repart tioned o i the 
 gross capital that the goods being sound would have 
 , amounted to at the place of their destination.' On 
 
 this Magens (who, it has been noticed, opposed the 
 adjustment on the basis of the gross produce) takes 
 occasion to remark — ' that whenever the goods 
 come to a gaining market no doubt can be made 
 that the damages should be repartitioned on the net 
 produce, and the insured bear his part for what did 
 
 * not pay a premium ; and,' he adds, ' when they 
 
 come to a losing market, the repartition should be 
 
 b 1 Mag. pp. at what he valued them at in his policy."' 
 ■ ■ In 1761 it was finally determined, that in all ad- 
 
 i justments of loss on goods sea-damaged, reference 
 ^'« must be had to the markets to determine the pro- 
 
 portion of injury which the goods have sustained. 
 
 c 2 Burrows Xhc cause of Lc^vis V. Rucker" (in the Court of 
 
 1167? ^^ King's Bench) settled this important point. It was 
 contended on the trial, that the assured ought to 
 have made good to him the difference between the 
 value in the policy and the price the damaged goods 
 sold for, (/. e. what is commonly called ' a salvage 
 loss.)' The underwriters, on the contrary, offered 
 to call witnesses to prove the general usage of es- 
 timating the quantum of damage to be by a refer- 
 ence to the market price of the damaged and sound 
 ^^ goods. For the only question was, — ' by what 
 
 measure or rule the damage ought to be estimated.' 
 On attentively perusing the luminous and excel-
 
 Adjustment of Particular Average on Goods. 
 
 293 
 
 lently well-digested ' resolution' of the court deliv- 
 ered by Lord Mansfield, on a motion for a new trial, 
 
 — the impression is, that the gross produce (though 
 the question was not agitated at the time,) was then 
 virtually determined to be the true rule of calcula- 
 tion ; because it does in fact settle all the great 
 points since contended for. 
 
 The cause of Johnson v. Shedden,'^ which three <i 2 Easts 
 times engaged the attention of the Court of King's 5,!/"' *^''' ^' 
 Bench, at length put this question to rest. The 
 judgment was delayed in consequence of a differ- 
 ence of opinion while Lord Kenyon presided in the 
 court; and the late lord chief justice Ellenborough 
 forbore to give an opinion, he having been one of 
 the counsel for the underwriters on the trial ; the 
 court was therefore composed of the puisne judges, 
 
 — Grose, Lawrence, and Le Blanc. 
 
 It may appear surprising, that though the mode of 
 calculating a particular average by a reference to the 
 markets, had been known in Europe nearly a cen- 
 tury when this judgment was given by the Court 
 of King's Bench, the important point, — whether 
 the gross produce, or the net proceeds, should be 
 considered the basis of calculation, was not deter- 
 mined till that day. 
 
 This cause, known in Lloyd's by the appellation 
 of ' the Brimstone cause,' (from the nature of part 
 of the merchandize insured,) was tried on its mer- 
 its, and a juror was agreed to be withdrawn, that 
 the amount of the damages might be ascertained. 
 In consequence of this the claim was made up for 
 adjustment on the ground of the net proceeds. But \ 
 on a motion for a new trial, the court after two ar- 
 guments, determined that the foundation of the cal- 
 culation was erroneous, (as had been previously 
 shown by a gentleman of high and deserved em- 
 inence in the commercial world,) (1) and that the | 
 
 1 
 
 (1) The late Edward Vaux, Esrj.
 
 294 Particular Average on Goods. — Stevens. 
 
 J 
 
 true mode of calculatin<j a paxti gl loss on goods sea- 
 damaged, and ascertaining: the extent of the under- 
 1 writer's liability, is by a comparison between the 
 . sross moduce of the sound and damaged goods. 
 
 gr^oss pi 
 \ The judgment of the court was given at great 
 ■ length, and the reasoning is sound and conclusive. 
 It is not my intention to lengthen ouTThls Essay 
 by giving an abstract of the able and clear reports 
 of these two adjudged cases, — the perusal of them 
 will well repay the attention of the commercial 
 reader. 
 
 In Michaelmas Term, 1802, the court of Com- 
 mon Picas approved the rule laid down by the Court 
 e 3 Bos. »fc of King's Bench.' The adjustment of a partial loss 
 3(J8 ^^ '' on goods sea-damaged, by a comparison between the 
 True rule is a gross producc of the souud and the damaged sales, 
 thr^grolrpro-^ may therefore now be considered the law of Eng- 
 ceeds. land. 
 
 It should ahvays be borne in mind, that it is to 
 the laudable and persevering efforts of Mr Shedden, 
 the defendant in the before-mentioned cause that the 
 commercial world is indebted for the settlement of 
 this very important question. 
 
 On the 4th August, 1802, a general meeting was 
 held of the subscribers to Lloyd's, by which a Com- 
 mittee of ten gentlemen was appointed, for the pur- 
 pose of taking into its consideration the impositions 
 which (particularly during peace,) (1) the under- 
 
 (1) It may be jjroper to notice, that though the breaking 
 out of the Avar prevented this Committee from being as useful 
 as they wished to liave been, yet it is probable that the sub- 
 scribers were indebted to them for tlie adojition of a rule, 
 which was at the time found very salutary in its eftects : — 
 that of demanding, lu case of claims for partial loss by sea- 
 damage in foreign countries, (particularly in the Mediter- 
 ranean) a certificate of survey signed by two resident British 
 merchants; a clause to this eftect was inserted in the policy, 
 and was called (from the gentleman with whom it originated.) 
 ' Mr Angerstein's Clause.' These certificates have however,
 
 .Adjustment of Particular Average on Goods. 295 
 
 writers were subject to ' in the making up of aver- 
 ages,' and to propose a remedy for the same. On 
 the 28th February, in the following year, the sub- 
 scribers were informed, that the committee had not 
 then come to any decision on the subject. — I have 
 reason to know that they were very anxious to pro- 
 mote the object of their appointment, but the war 
 breaking out again probably prevented any thing de- 
 finitive being done. 
 
 Having thus gone through the history of the 
 modes of adjusting particular averages, I am obliged 
 to remark, with some regret, that though the ques- 
 tion is probably put to rest in the courts of law, 
 there is reason to think, (perhaps from the grounds 
 of the above decisions not being so well known as 
 they ought to be,) that some dissatisfaction still pre- 
 vails in the commercial world. To obviate this, if 
 it be possible, or at least to endeavour to put the 
 subject in so clear a point of view that it may be 
 known in what the difference of opinion consists, 
 will be the object of the remainder of this chapter. 
 
 The intention and end of insurance is, ' to in- 
 demnify the assured.'^ In what does this indemnity 
 consist ? — It has been answered, by quoting only 
 part of a sentence of Lord Mansfiefd,*^ without re- ^^^^^^^- ^''^■ 
 garding the context, — in ' putting the merchant in 
 the same condition which he would have been in if 
 the goods had arrived free from damage.' — Now, 
 
 like most things of this kind, such as those of Lloyd's Agents, 
 &.C, become nearly nugatory, and are but little to be depend- 
 ed on.
 
 296 
 
 Particular Average on Goods. — Stevens. 
 
 h Vide inf. § 
 iii, art. :}, ex. 
 2. 
 
 4 
 
 it is evident, that if this were to be strictly insisted 
 on, the gross proceeds could not be the proper mode 
 of adjustment ; — nor would any other mode with 
 which we are acquainted suit all the cases that might 
 occur — for if we try it on the net proceeds, the 
 g Vide inf. § merchant would only on a saving market" be put ' in 
 ui,art.3.cx. 1. ^.j^g same condition which he would have been in if 
 the jroods had arrived free from damag-e.' While on 
 a losing market he would actually make a profit of 
 the underwriter.'' But this latter mode of adjust- 
 ment was evidently not in the contemplation of the 
 court when his lordship delivered its judgment. 
 For he says, — ' the underwriter has nothing to do 
 with the rise or fall of the market, — nor with the 
 price of the thing.' — But the adjustment on the net 
 proceeds does involve the underwriter in both these 
 considerations. 
 
 From the above decisions, and from what can be 
 collected of the general opinion of well-informed 
 men, the object of the policy is, to insure the mer- 
 chant against any injury ivhich his goods may sus- 
 tain from depreciation in value, by their being sea- 
 damaged, — and_nothing more. — That this object 
 may be fully attaineH^ all cases by the adjustment 
 on a comparison bet^^ een the gross produce of the 
 sound and damaged goods, will be shown in the 
 course of the following section; — and farther, — 
 !\ that this mode is the only one m hich secures to the 
 11 merchant his rights, without infringing on those of 
 1 the underwriter. 
 
 / 
 
 4 
 
 Sect. III. Of the Various Modes of Adjustment. 
 
 In the examination of the subjects treated of in 
 this section, I have conceived that no mode would 
 lead to the desired result, so soon or so correctly, as 
 that of a direct analytical investigation ; and if in the
 
 Adjustment of Particular Average on Goods. 297 
 
 pursuance of tliis plan it be thought necessary to 
 apologize to my experienced readers, it is hoped 
 that the attempt to reconcile opposite interests, and 
 thus to promote a union of opinion on matters of 
 some consequence, will be considered a sufficient 
 excuse. 
 
 There are four modes of adjusting a partial loss Four modes 
 on goods deteriorated by sea-damage, each of which o^ adjustment. 
 has had its advocates ; — these modes are as fol- 
 low : — 
 
 1. As a SALVAGE LOSS. 
 
 2. On the difference between the sound and da- 
 maged sales, without a reference to the cost. 
 
 3. On a comparison between the net proceeds of 
 sale of the sound and damaged goods. 
 
 4. On a comparison between the gross produce 
 of the same. 
 
 I shall treat of these in the above order, and of 
 some other subjects connected with this section. 
 
 In the following calculations let these data be 
 assumed, — except ivhere alterations are necessary 
 for the better elucidation of the argument, viz. : — 
 
 Interest, — £500 ; — being the amount of the in- 
 voice, covered with the premium of insurance, &:c. 
 Deterioration, — one half. 
 38
 
 298 Particular Average on Goods. — Stevens. 
 
 Charges, — £100; — being the amount of freight 
 and duties. 
 
 Loss, — On a losing market 
 Profit, — On a gaining market 
 
 j£50 per cent on the amount of 
 the Interest. - 
 
 Article 1. On the Adjustment of a Partial Loss 
 by Deterioration, on the Principle of a salvage 
 
 LOSS. 
 
 An adjustment on this principle cannot be correct, 
 because it does not act uniformly ; but is made to 
 depend entirely on the markets, which regulate the 
 claim on the undervi'riter, and in the fluctuations of 
 which he is involved with the merchant : and, more- 
 over, in consequence of no comparison being made 
 between the market price of the sound and damaged 
 goods, the merchant is deprived in some cases of 
 any redress whatever, though his loss may be con- 
 siderable from the deterioration of the goods. 
 
 (1) FIRST EXAMPLE. On a Saving Market. 
 
 Amount of interest, £500 
 
 Deduct gross produce of the damaged 
 
 sales, £300 
 
 Less charges, 100 
 
 200 
 
 Loss £300 
 
 (1) In statements of particular averages adjusted as a sal- 
 vage loss, it has been customary for the merchant abroad to 
 charge his commission on the damaged sales. The practice 
 of Lloyd's is to allow this, only when the goods are consigned 
 for sale, and consequently where the merchant acts as an 
 agent. When the property is his own he does no more than 
 he is bound to do ; — he sends the goods to auction, and re-
 
 Adjustment of Particular Average on Goods. 299 
 
 The goods are damaged owe-Zm//*, viz. : — £250; 
 but the claim is for £300 — which is £50 more than 
 the amount of the injury the goods have sustained 
 from depreciation in value ; which £50 is precisely 
 the proportion of charges (i. e. freight and duties,) 
 on the value of the goods, lost by the deteriora- 
 tion : — ex. gr. 
 
 To amount of invoice, premium, &c, .£500 
 
 To amount of freight and duties, 100 
 
 .£600 
 
 By amount received from damaged sales, ^300 
 By amount of claim on tlie underwriters, 
 
 ^300 
 viz : — For deterioration, 250 
 
 For half the freight and duties ; the goods 
 
 being damaged one-half^ 50 
 
 300 
 
 £600 
 
 Second Example. — On a losing Market. 
 
 Amount of interest, .£500 
 
 Deduct gross produce of the damaged sales, ^175 
 Less charges, 100 
 
 75 
 
 Loss ^425 
 
 Here the insurer makes good to the assured the 
 whole of his loss ; — for the underwriter pays the 
 balance of the account : ex. gr. 
 
 ceives the proceeds of the auctioneer, and calls on the under- 
 writer for his loss — this is the whole process, and there the 
 matter ends. On this subject see (a ^e\v pages farther) a 
 quotation from Valin's Commentary on the Ordinance of the 
 marine of Louis XIV.
 
 300 Particular Average on Goods. — Stevens. 
 
 To amount of invoice, premium, freight, 
 
 duties, &.C, ut supra, — ^600 
 
 By amount of damaged sales, 175 
 
 By claim on the underwriters, .£425 
 
 1 
 
 viz : — For deterioration, 250 
 
 Half the freight and duties, 50 
 
 Half the loss of markets, 125 
 
 425 
 .£600 
 
 This example serves as one reason why a prefer- 
 ence is given in foreign countries to this mode of 
 adjustment. It is particularly prevalent in the 
 United States ; and if we had not good reason to 
 know that few even of the best informed merchants 
 there are unacquainted with any other mode, we 
 might be uncharitable enough to imagine this a suffi- 
 cient reason for the numerous claims made of late 
 years from those countries, when the markets have 
 been overstocked with British manufactures; — for it 
 has been seen, that on a .saving market the merchant 
 is fully indemnified, — i. e. he is put ' in the same 
 condition which he would have been in if the goods 
 Vide supra, had arrived free from damage;'' — and on a /o5m^ 
 market he is not only indemnified against the depre- 
 ciation in value, and the loss of the freight and 
 duties, — but he is put in the same condition as if 
 his goods had arrived at a saving market. 
 
 Thus far by this mode of adjustment, the foreign 
 merchant secures himself against, — Jirst, — any loss 
 arising from the damage done to his goods ; — 
 secondly, — from the loss occasioned by the pay- 
 ment of the full freight and duties on the damaged 
 goods; — and lastly, — from the loss of the market. 
 And thus a full and complete abandonment of the 
 damaged goods to the underwriter is assumed and 
 
 ex. 1.
 
 Adjustment of Particular Average on Goods. 301 
 
 acted upon. It would be well however if the parties 
 were to recollect the excellent observation of that 
 most sagacious commentator, — Valin:^ 'The in- k Vai. Com. 
 
 ■ 104 
 
 surer is not always in the place of the assured ; he P' 
 is only guarantee to him for the damage that may 
 happen to the thing insured.' 
 
 Third Example. — On a profitable Market. 
 
 Case 1. On the preceding datum of 50 per cent profit. 
 Amount of interest, 
 
 Deduct gross produce of the damaged sale, 
 Less charges, 
 
 
 .£500 
 
 ^425 
 
 
 100 
 
 
 
 325 
 
 Loss 
 
 .£175 
 
 In this case, the assured falls short of his true in- 
 demnity £75 — because no comparison is made be- 
 tween the market price of the sound and damaged 
 goods, — and where goods are deteriorated in value 
 by sea-damage, no measure can be taken from the 
 prime cost to ascertain the quantity of such dam- 
 
 affe.' * 2 Bur. Rep. 
 
 ^ p. 1170. 
 
 Case 2. Let the profit be increased to 120 per cent, then : — 
 Amount of interest, .£500 
 
 Gross produce of damaged sales .£600 
 
 Deduct the charges 100 
 
 ^500 
 
 Thus, — though the goods are still damaged one- 
 half, the assured has no claim on the insurer ; for the 
 net proceeds of sales of the damaged goods are the 
 amount of the prime cost. 
 
 If we extend the comparison, and assume the pro- 
 fit greater than 120 per cent, then, (as on this prin-
 
 302 Particular Average on Goods. — Stevens. 
 
 ciple the goods are supposed to belong to the under- 
 writer,) instead of the assured having a claim on the 
 insurer for £250, to which sum he is justly entitled, 
 (the goods being deteriorated to that extent,) he, — 
 the insurer, would receive a profit from the assured. 
 
 It will be readily inferred that this is an exceed- 
 ingly erroneous mode of adjusting partial losses ; 
 and that so far from admitting of general applica- 
 tion, it will not be correct even in any one in- 
 stance, — i. e. if the definition of indemnity before 
 given be allowed. 
 
 As it is the object of all mercantile speculation 
 that goods should go to a profitable market, it ap- 
 pears surprising that this mode, which in such a case 
 can never give the merchant his indemnity, should 
 so long have had the preference to all others. 
 
 The reason for continuing the use of it, in pre- 
 ference to a comparison between the value of the 
 sound and damaged goods, is said to be ; — because 
 there are no means of determining the market price 
 of manufactured goods, or in fact, that there is no 
 market price. But this w ill admit of doubt ; — for 
 instance, — manufactured goods are sold in our colo- 
 nies, and in foreign countries, across the Atlantic, at 
 an advance on the invoice cost : — if therefore a 
 trust-worthy certificate could be obtained in these 
 cases, why should we not place the same confidence 
 in it, as we do in a certificate of the sound value of 
 colonial produce ? If such a plan were to be adopt- 
 ed the mode of adjustment would not be difficult, (a) 
 
 (a) The following calculations of Mr Stevens are intended 
 to show that a partial loss on British manufactures may be 
 adjusted without having recourse to the erroneous method of 
 apportionment, called 'salvage loss.' — Ed. 
 Interest, — =£500; — being the amount of the invoice, covered 
 
 with the premium of insurance, &c.
 
 Adjustment of Particular Average on Goods. 303 
 
 It has been objected to this, — that the value of 
 some articles, such, for instance, as printed calicoes, 
 
 Deterioration, — one-half. 
 
 Charges, — .£100; — being the amount of freight and duties. 
 
 Loss, — on a losing market ) „,. , ,, , n . . 
 
 Tt }■ • • 1 ? *50 per cent on the amount of Interest. 
 
 rrojit, — on a gaining market ) 
 
 (1) First Example. — On a saving Market. 
 
 Certificate, that if the goods had arrived sound 
 thej would have sold at an advance of 221 per cent 
 on the cost. 
 
 Amount of invoice, with the premium, <fcc, .£500 
 
 Deduct charges on invoice, and the pmo. (say) 50 
 
 Net cost of goods, 450 
 
 Advance (per certificate) 22| per cent, 100 
 
 550 
 
 Add charges, &.c, as above, 50 
 
 Gross produce of damaged goods if they \ /^t\ /-nr, 
 
 had arrived sound, ) ^ ' 
 
 Gross produce of damaged goods, (a) 300 
 
 Difference between the pro-formd sales ^ 
 of the sound goods, and the sales of I 
 the damaged goods — one-half, (or > 300 
 
 50 per cent on the invoice, i. e. j 
 .£250, (b) J 
 
 Proof. 
 
 To amount of invoice, premium, &c, 500 
 
 To do freight, duties, &c, 100 
 
 Dr. 600 
 
 (1) N. B. This and the following examples, will serve as 
 a Iccy to those adjustments in the Essay where these data are 
 assumed. 
 
 (**) Amount of invoice, covered witli premium, &c, £500 
 
 Add freight, duties, &c, 100 
 
 A Saving Market £600
 
 304 Particular Average on Goods. — Stevens. 
 
 depends on the-fashion of the day, and according to 
 that, the advance would be high or low, and there- 
 
 By received gross produce of sale (a) ^300 
 By do of the underwriters (b) 250 
 By loss of half the freight, duties, &c, by depre- 
 ciation in value, 50 
 
 Cr. ^^600 
 
 Second Example. — On a Losing Market. 
 
 Certificate, that if the goods had arrived sound 
 (the markets being overstocked,) they would have 
 sold at a depreciation of 33^ per cent on the cost. 
 
 Amount of invoice, premium, &:.c, .£500 
 
 Deduct charges on invoice, and the pmo. (say) 50 
 
 Net cost of goods, 450 
 Depreciation (per certificate) 33^ per cent, 150 
 
 300 
 
 Add charges, &.c, as above, 50 
 
 Gross produce if arrived sound, (*) 350 
 
 Gross produce of damaged goods, (a) 175 
 
 Difference, (or 50 per cent on the invoice,' &c, ) ^-f^e: 
 
 i.e. £250) (b) J ^^'^ 
 
 Proof. 
 
 To amount of invoice, premium, &.c, 500 
 
 To do freight, duties, &.c, 100 
 
 Over. Dr. ^600 
 
 (*) Amount of invoice, covered with premium, &c, £500 
 
 Add freight, duties, &c, 100 
 
 600 
 Loss, 50 per cent on the invoice, &c, 250 
 
 A Losing Market of 50 per cent, £350
 
 Adjustment of Particular Average on Goods. 305 
 
 fore the underwriter would be affected by it; — but 
 this objection has no foundation ; (as will be seen in 
 
 I By received gross produce of sale, (a) .£175 
 
 By do of the underwriters, (b) 250 
 
 By loss of half the freight, duties, &c, 50 
 
 By balance, which is loss of markets on the one-half of 
 the value arrived, 125 
 
 Cr. ^600 
 
 THIRD EXAMPLE. — Oti a Gaining Market. 
 
 Case 1 . On the preceding datum of 50 per cent 
 profit. 
 
 Certificate, that if the goods had arrived sound they 
 would have sold at an advance of 77^ per cent on 
 the cost. 
 
 Amount of invoice, and the pmo. ^500 
 
 Deduct charges, &c, 50 
 
 Net cost of goods, 450 
 
 Advance (per certificate) 77|^ per cent, 350 
 
 800 
 Add charges, &c, 50 
 
 Gross produce if arrived sound. 
 Gross produce of damaged goods, 
 
 
 (A) 
 
 850 
 425 
 
 Difference, (or 50 per cent, i. e. .£520), 
 
 
 (B) 
 
 ^425 
 
 Proof. 
 
 
 
 
 To amount of invoice, premium, &c. 
 To do freight, duties, &c. 
 
 
 
 ^500 
 100 
 
 (*) Amount of invoice, covered with premium, «fcc, 
 Add freight, duties, «&c, 
 
 Profit, 50 per cent on the invoice, 
 
 
 £500 
 100 
 250 
 
 A Gaining Market of 50 per 
 
 cent, 
 
 
 £850 
 
 39
 
 306 
 
 Particular Average on Goods. — Stevens. 
 
 the note,) for the underwriter has no more to do 
 with the advance than he has with the price. 
 
 To balance, which is the profit on the one-half value 
 
 arrived, 125 
 
 By received gross produce of sale, 
 By received of the undei'writers, 
 By loss of half the freight and duties, 
 
 N. B. Let the foregoing three Examples he compared with Ex- 
 ample I. {Page 298.) 
 
 Case 2. On a Gaining Market. 
 
 Let the profit be increased to 120 per cent. 
 
 Certificate, that if the goods had arrived sound 
 they would have sold at an advance of 1551 per cent 
 on the cost. 
 
 
 Dr £725 
 
 (A) 
 (B) 
 
 £425 
 
 250 
 
 50 
 
 Cr. 
 
 £725 
 
 Net cost of goods, as before, 
 
 Advance (per certificate) 155f per cent. 
 
 Add the charges on invoice. 
 
 £450 
 700 
 
 1150 
 50 
 
 (*) 1200 
 
 (a) 600 
 
 Gross produce of damaged goods, 
 
 Difference, (or 50 per cent on invo. i. e. £250, (b) £600 
 
 Proof. 
 
 To amount of invoice, premium, &c. 
 To do freight, duties, iStc, 
 
 (*) Amount of invoice, premium, &c, 
 Add freight, duties, &c, 
 Profit 120 per cent on the invoice, 
 
 A Gaining Market of 120 per cent, 
 
 £500 
 100 
 
 £500 
 100 
 600 
 
 £1200
 
 Adjustment of Particular Average on Goods. 307 
 
 Jirticle 2. On the Adjustment of a Partial Loss by 
 Deterioration, on merely the difference between 
 the Sound and Damaged Sales. 
 
 If the adjustment be made merely on a comparison 
 between the market-price of the sound and damaged 
 
 To balance, which is the profit on the one-half value 
 
 arrived, 300 
 
 Dr i:900 
 
 By received gross produce of sale, (a) .£600 
 
 By received of the underwriters, (b) 250 
 
 By loss of half the freight and duties, 50 
 
 Cr. i:900 
 
 The above note is ' Appendix IF in Mr Stevens' treatise. — Ed. 
 
 The following is the substance of a Letter ad- 
 dressed by the author to Robert Shedden, Esq. 
 of Lloyd's, between the publication of the third edi- 
 tion of this Essay and the present. 
 
 In all the calculations which have been made to 
 elucidate the two principal modes of adjustment, viz. : 
 — on the Net Proceeds and the Gross Proceeds, it 
 has been assumed that the full amount of freight, 
 duty and charges, is in the one case included in, and 
 in the other deducted from, the gross amount of the 
 sales. And this was the principle on which the 
 court of King's Bench came to its decision in the 
 celebrated cause of Johnson v. Shedden. But this 
 principle is not adopted in practice. 
 
 For instance : — A merchant receives a parcel of 
 goods which are sea-damaged, and on which he has
 
 308 Particular Average on Goods. — Stevens. 
 
 goods, without a reference to the prime cost, it ap- 
 pears to me to be clear, that it can hold good only 
 
 paid the full amount of duty ; — the revenue pro- 
 fesses to return so much of the duty as is propor- 
 tionate to the damage sustained by the goods : if 
 the merchant feels assured that he shall obtain such 
 a return of duty, he will be enabled to sell his goods 
 for so much less as that shall amount to ; and no 
 one would think of analyzing the account of sales 
 to find how much duty is contained in it ; nor in- 
 deed, if the duty returned were ad valorem, or in 
 proportion to the damage, would it be of any use 
 that he should. Because equal proportions being 
 taken from unequal sums leave the relative differ- 
 ence the same. 
 
 The objection to a settlement on the Net Pro- 
 ceeds, is that when the full amount of the freight, 
 duty and charges is deducted from the damaged 
 sales, the underwriter is made to pay a proportion 
 of the loss on these items, and is also by this mode 
 of calculation involved in ' the fluctuation of the 
 markets.' As far as relates to the duty, which is 
 generally the principal charge, this objection appears 
 now to be obviated ; as there is much less difficulty 
 in getting a return of duty from the revenue than 
 there formerly was. 
 
 The above remarks are necessary as preliminary 
 to an inquiry, — whether the principle of selling 
 goods IN BOND, or (which will be in effect the same) 
 the purchaser paying the duty, is a proper mode of 
 adjustment as regards the relative situation between 
 the merchant and the underwriter ? 
 
 If the sales of damaged goods were always sup- 
 posed to include, or actually did include, the full 
 duty, it is certain that an adjustment on this princi- 
 ple would not be the same as that of the gross pro-
 
 Adjustment of Particular Average on Goods. 309 
 
 in the single case, where the value of the sound pro- 
 duce is precisely the same as the amount of the 
 prime cost. 
 
 ceeds ; but let it be assumed that the merchant re- 
 ceives back from the revenue the duty in proportion 
 to the damage done to the goods, and it will be found 
 that (as far as relates to the duty) it is of no con- 
 sequence whether the adjustment be made upon the 
 basis of the gross proceeds, the net proceeds, or the 
 goods sold in bond. And thus it will be shown that 
 the merchant gets his full indemnity, and the under- 
 writer pays no more than he has been, at least for 
 some some time past, in the habit of paying, not- 
 withstanding the legal decisions on the subject. 
 
 In the following calculations let these data be 
 assumed : — 
 
 Interest .£500 ; — being the amount of the Invoice covered 
 with the premium, and including the freight, sup- 
 posed to be paid on shipping. 
 
 Deterioration, — one half. 
 
 Duty £100 ; — the revenue returning one half (/. e. in pro- 
 portion to the damage.) 
 
 Loss, — on a losing; market ) ,. ... . ft , , 
 
 ' o ^ 50 per cent on the amount of Interest. 
 
 Profit, — on a gaining market j 
 
 FIRST EXAMPLE. 
 
 Adjustment on the principle of the 
 
 NET PROCEEDS. 
 
 1 . On a Saving Market. 
 
 If the goods had arrived sound, they would have 
 
 produced, £000 
 
 (i. e. amount of invoice £^500, and duty ^100.) 
 
 Deduct duty, 100 
 
 500
 
 310 
 
 Particular Average on Goods. — Stevens. 
 
 n> Marshall, It has liowcver been contended by the assured," 
 P"^^' that where tlie goods have come to a profitable 
 
 Being damaged, they did produce, .£300 
 
 (j. e. half tlie amount of invoice .£250, and half 
 the duty £50.) 
 
 Deduct duty, 50 250 
 
 Depreciated in value 
 
 50 
 
 per cent, 
 
 
 £250 
 
 Proof. 
 
 
 
 
 
 The merchant pays for his goods, 
 And for duty, 
 
 
 
 £500 
 100 
 
 £600 
 
 He receives, viz. 
 From the revenue. 
 From the underwriter, 
 Gross sales (including one half the 
 
 duty,) 
 
 ^50 
 250 
 300 
 
 £600 
 
 2. On a Losing Market. 
 
 If sound, the goods would have produced, 
 i. e. goods £500, (less £250, loss of markets) 
 and duty £100. 
 Deduct duty. 
 
 Being damaged, they did produce, 
 
 {i. e. goods £125, and duty £50.) 
 Deduct duty, 
 
 Deteriorated 50 per cent. 
 
 Proof. 
 
 The merchant pays for his goods (as above,) 
 He receives, viz. 
 
 From the revenue, 
 
 From the underwriter, 
 
 Gross sales (including one half duty,) 
 
 £350 
 
 
 100 
 £175 
 
 250 
 
 50 
 
 125 
 
 
 £125 
 
 £600 
 
 250 
 175 
 
 £475
 
 Adjustment of Particular Average on Goods. 311 
 
 market, he is entitled to the difference between the 
 price for which the damaged and undamaged goods 
 have been sold at the port of delivery, — for so much 
 has he lost. And on the other hand, — the insurer 
 contends that where the goods have come to a losing 
 market, he ought to be called upon to make good 
 only the difference between the value of the sound 
 
 Loss of market on the one half of the interest 
 
 supposed to have arrived sound, 125 
 
 .£600 
 
 
 100 
 
 
 £750 
 
 £425 
 
 
 50 
 
 375 
 
 
 £375 
 
 3. On a Gaining Market. 
 
 If sound, the goods would have produced, £850 
 
 {i. e. goods £500, with £250 profit, and £100 
 duty.) 
 
 Deduct duty, 
 
 Being damaged, they did produce, 
 {i. e. goods £250, profit £125, duty £250. 
 Deduct duty. 
 
 Deteriorated 50 per cent. 
 
 Proof. 
 The merchant pays for his goods (as above,) £600 
 
 He receives, viz. 
 
 From the revenue, £50 
 
 From the underwriter, 250 
 
 Gross sale, (including one half duty, and 
 
 one half profit of market,) 425 
 
 £725 
 Profit of market on one half of the interest, 
 
 supposed to have arrived sound, 125 
 
 £600
 
 312 Particular Average on Goods. — Stevens. 
 
 and damaged goods ; — for so much, it is said, and 
 no more, has the assured lost. 
 
 SECOND EXAMPLE. 
 
 Adjustment on the principle of goods being sold 
 
 IN BOND. 
 
 1. On a Saving Market. 
 
 If soiind, the goods would have produced, 
 Being damaged, they did produce. 
 
 Deteriorated 50 per cent. 
 
 Proof, viz. 
 
 The merchant pays for his goods, 
 He receives, viz. 
 
 From the underwriter, 
 
 Amount of sale. 
 
 £250 
 250 
 
 .£500 
 250 
 
 £250 
 
 £500 
 
 £500 
 
 2. On a Losing Market. 
 
 If sound, the goods would have produced. 
 Being damaged, they did produce, 
 
 Deteriorated 50 per cent. 
 Proof. 
 
 The merchant pays for his goods, 
 
 
 He receives, viz. 
 
 
 From the underwriter, 
 
 £250 
 
 Amount of sale, 
 
 125 
 
 £250 
 125 
 
 £125 
 
 £500 
 
 Loss of market on the one half of the interest, 
 supposed to have arrived sound, 
 
 £375 
 
 125 
 
 £500
 
 Adjustment of Particular Average on Goods. 
 
 313 
 
 The answer to both these assumptions might be, 
 in the words of Lord Mansfield, before quoted," — " Vide supra, 
 * the underwriter has nothing to do with the price,' — 
 the market being only used as scales to weigh the 
 
 3. On a Gaining Market. 
 
 If sound, the goods would have produced, 
 Being damaged, they did produce, 
 
 .£750 
 375 
 
 ^375 
 
 Detei-iorated 50 per cent. 
 
 
 
 
 Proof. 
 
 
 
 
 The merchant pays for his goods. 
 
 
 
 ^500 
 
 He receives, viz. 
 
 
 
 
 From the underwriter, 
 
 
 .£250 
 
 
 Amount of sale. 
 
 
 375 
 
 .£625 
 
 
 Profit of market on one half of the 
 
 interest, 
 
 
 
 supposed to have arrived sound. 
 
 
 125 
 
 .£500 
 
 THIRD EXAMPLE. 
 
 Adjustment on the principle of the 
 
 GROSS PROCEEDS. 
 
 1. On a Saving Market. 
 
 If the goods had arrived sound, they would have 
 
 produced, 
 {i. e. amount of invoice ^500, duty =£100.) 
 Being damaged, they did produce, 
 {i. e. half the amount of invoice, and half the duty.) 
 
 Deteriorated 50 per cent. 
 40 
 
 ^600 
 300 
 
 i:300
 
 314 Particular Average on Goods. — Stevens. 
 
 o Vide supra, extent of the damage." The comparison between 
 the price of the sound and damaged goods is insti- 
 
 Proof. 
 
 The merchant pays for his goods, £500 
 
 And for duty, 100 
 
 £600 
 
 He receives, viz. ■ 
 
 From the revenue, . £50 
 
 From the underwriter, 250 
 
 Gross amount of sale (including one half 
 
 duty,) 300 
 
 £600 
 
 2. On a Losing Market, 
 
 If sound, the goods would have produced, £350 
 
 i. e. goods £500, (less loss of market £250,) and 
 
 duty £100. 
 Being damaged, they did produce, 175 
 
 £175 
 
 Deteriorated 50 per cent. 
 
 Proof. 
 
 The merchant pays for his goods (as above,) £600 
 
 He receives, viz. - 
 
 From the revenue, £50 
 
 From the underwriter, 250 
 
 Gross amount of sale (including one half 
 
 duty,) 175 
 
 Loss of market on one half of the interest, sup 
 
 posed to have arrived sound, 125 
 
 £475 
 
 £600 
 
 3. On a Gaining Market. 
 
 If sound, the goods would have produced, £850 
 
 {i. e. goods ^500, profit ^250, duty ^100.)
 
 Adjustment of Particular Average on Goods. 315 
 
 tuted only to ascertain the quantum of damage 
 which the goods have sustained, i. e. the relative 
 depreciation. 
 
 Being damaged, they did produce, 425 
 
 i. e. goods ^250, profit ^125, duty ^50.) 
 
 ^425 
 Deteriorated 50 per cent. . 
 
 Proof. 
 
 The merchant pays for his goods (as above,) ^600 
 
 He receives, viz. 
 
 From the revenue, ,£50 
 
 From the underwriter, 250 
 
 Gross amount of sale (including one half 
 
 duty and one half profit), 425 
 
 £725 
 
 Profit of the market on the one half of the in- 
 terest, supposed to have arrived sound, 125 
 
 £600 
 
 Thus it is found to be of no consequence to the 
 merchant or the underwriter, which of the above 
 three modes of adjustment is adopted ; for the former 
 is indemnified, and the other pays no more than he 
 ought to pay on either of them. 
 
 If the foregoing principle of adjustment be admit- 
 ted as correct, it will be of consequence to enquire 
 whether the price in Bond can be considered as 
 ' the market price' in contemplation of the court of 
 King's Bench when its judgments were delivered in 
 the two before-mentioned causes ? If the court con- 
 sidered that the damaged goods must necessarily 
 contain the full amount of freight, duty and charges, 
 then the adjustment on the principle of the goods 
 sold in Bond is erroneous. The learned judge how- 
 ever, who delivered the opinion of the court in the 
 cause of Johnson v. Shedden, said at the conclusion,
 
 316 Particular Average on Goods. — Stevens. 
 
 The principle contended for by the assured has 
 p 1 Ma<Tens, been noticed by Magens, — who says ;p — ' the as- 
 sup. p. 9o! sured on a gaining market should bear his part for 
 what did not pay a premium.' And it is allowed on 
 all hands, that the assured ought not to call on the 
 insurer for a loss on a larger sum than that on which 
 the latter has received a premium. 
 
 Perhaps the principle for which the insurer con- 
 tends, may have arisen in some measure from the 
 customary mode (in my opinion not the best,) of 
 stating a particular average; — which, instead of 
 estimating, by a comparison of the proceeds, how 
 much the goods are depreciated in value, is done by 
 making a statement in the rule of proportion, — ex. 
 gr. If £500 (the sound value) lose £125, then 
 £600 (the cost) will lose £150. Thus making it 
 appear that the loss to the assured is only £125, — 
 instead of showing that the goods are depreciated in 
 value one-fourth, or 25 per cent (1), which amounts 
 
 (1) There are three modes of stating a Particular Average, 
 which are as follow : — 
 
 ' The difference of the net produce cannot be the 
 rule to calculate by, when the charges are not pro- 
 portioned to the respective values of the sound and 
 damaged commodities.'^ 
 
 It is evident from the above calculation, that 
 though the merchant gets his indemnity in regard to 
 the duties, it is not at the expense of the underwriter ; 
 he only pays what he is bound to pay, that is the 
 actual damage done to the goods ; and it is clear, 
 that even if he should be injured by such a settle- 
 ment, it is not an innovation ; for it has been in- 
 variably adopted in practice before and since the 
 decisions of the court. 
 
 [The above ia Appendix IV, in Mr Stevens. — Ed.]
 
 Adjustment of Particular Average on Goods. 317 
 
 to £150. But this point will now scarcely admit of 
 dispute, — for it would appear to be completely set- 
 tled, that if the goods be damaged, i, e. depreciated 
 in value one-fourth, &c, the underwriter must ]}ay 
 one-fourth, &lc, of the cost or value in the policy.'' i 2 Bur. Rep. 
 
 Probably, however, this mode of adjustment may ^' 
 have arisen from the idea, that the assured has a 
 right to call on the insurer in the one case ; and the 
 insurer has a right to demand of the assured in the 
 other, — that the damaged goods shall be replaced 
 with sound. 
 
 Now it appears clear, that if this were to be ad- 
 mitted as the principle of indemnity, it would do 
 away at once all settled practice, and open a door to 
 litigation on every partial loss of this nature that 
 might occur. 
 
 Let us put the case of a losing market where the 
 underwriter offers to replace the damaged goods 
 with sound, — ex. gr. The merchant effects insur- 
 ance on a bale of cotton from the West Indies to 
 London, valued at £20, which is the cost, &c. It 
 
 First: — (as above.) 
 
 If ^500 lose £125: then £600 will lose £150. 
 Second : — 
 
 As £500 (the sound) is to £375 (the damaged) so 
 is £600 (cost) to £450. 
 From the invoice cost deduct 450 
 
 Amount of loss £150 
 
 Third: — 
 
 Cost, ^600 
 
 Amount of pro-formd sales of sound goods, .£500 
 
 Ditto of sales of damaged goods, , 375 
 
 Damage, or depreciation in value 25 per cent, .£125 
 
 25 per cent on c£600 is .£150. " ' 
 
 The latter mode is I think preferable to cither of the others, 
 
 as serving better to elucidate the principle on which the claim 
 
 is made.
 
 318 Particular Average on Goods. — Stevens. 
 
 arrives damaged, and if sound it would have been 
 worth only £15. The underwriter offers to replace 
 it with a sound bale ; — but the merchant says, ' no, 
 the contract between us is, that the goods shall come 
 safe to the port of delivery ; or if they do not, that I 
 shall he indemnified to the amount of the prime cost, 
 r L. Mans- ^c, — it is a coutract between the insurer and the 
 Rep. p.~ii72. assured, and not between merchant and merchant ; 
 a bargain and sale is a mercantile transaction, and 
 has no principle in common with the contract of in- 
 surance. But farther, if you mean by replacing the 
 goods, to put yourself in my situation, you must 
 make your purchase at the same market that I did, 
 you must enter into a similar contract of insurance 
 with a third person, (whose solvency you must guar- 
 anty) that the goods shall arrive safe. — You must 
 in fact take upon yourself all the risks besides those 
 in the contract between us, and bring the goods on 
 to the port of discharge. — When you have done 
 this, we shall be on a more equal footing.' If the 
 merchant were thus to reply to the underwriter's 
 offer, he would at least have reason on his side — 
 though the reply might not be satisfactory to the 
 underwriter. 
 
 But finally, as no principle of adjustment can be 
 correct unless it have a reference to the market price 
 — so neither can any be so unless it have also a ref- 
 erence to the prime cost. 
 
 Article 3. On the Adjustment of a particular Aver- 
 age by a Comparison between the net proceeds of 
 the Sound and Damaged Sales. 
 
 There are several very material objections to this 
 mode of adjustment (1), none of which appear to 
 
 (1) A very ingenious Essay on the subject of the adjust- 
 ment of particular averages on the two principles of the net
 
 Adjustment of Particular Average on Goods. 319 
 
 have had the attention that ought to have been given 
 to them by the writers on the practice of insurance. 
 Magens and Weskett were favourable to it, but upon 
 what principle I am at a loss to discover, for the rule 
 is inconsistent with itself, if it profess merely to 
 give the merchant his indemnity, by putting him ' in 
 the same condition which he would have been in if 
 the goods had arrived free from damage.' Its op- 
 erations are indeed so partial, that it does this only 
 in the one solitary case of precisely a saving market. 
 And the above writers, who are often very acute 
 and accurate on other subjects, must, when they 
 went into calculations on this, have given up the 
 matter as hopeless, if they expected by the result 
 to reconcile the interests of the assured and the in- 
 surer, or to give either of them satisfaction. Ma- 
 gens was indeed aware of this, — for he acknowl- 
 edges that the rule will not admit of general appli- 
 cation — and therefore proposes that the mode of 
 calculation shall be varied with the state of the 
 markets. 
 
 FIRST EXAMPLE. 
 
 On a Saving Market. 
 
 If the goods had arrived sound, they would have 
 
 produced, .£600 
 
 Deduct freight and duties, 100 
 
 500 
 
 proceeds and the gross proceeds, was published a few years 
 since at Liverpool ; wherein the author satisfactorily demon- 
 strated, by a series of algebraical calculations, that the ad- 
 justment on the gross proceeds is the only mode that can be 
 acted upon without involving the insurer in a loss of markets 
 and freight and duties. 
 
 Two or three years previous to the perusal of that Essay, 
 the writer had entered on a course of calculations which led 
 to a similar result — and the only difference was, that his were 
 made on Cotton from the United States, and those in the Es- 
 say alluded to are made on Sugar from the West Indies.
 
 320 Particular Average on Goods. — Stevens. 
 
 Being damaged, the goods did produce, 300 
 
 Deduct freight and duties, 100 
 
 200 
 Depreciation 60 per cent. if300 
 
 111 this example the goods are deteriorated only 
 one half, or 50 per cent — which, on £500, is £250, 
 — but the claim is 60 per cent or £300. — The ad- 
 ditional £50 make the amount of half the freight 
 and duties ; which half is lost by the goods being 
 damaged in that proportion. It will be perceived 
 that the result of this adjustment is the same as 
 . that made on the erroneous principle of a salvage 
 » Vide sup. loss ;' for in both cases the underwriter pays the 
 
 art. 1, ex. 1. ^^^/^^^^^ ^f aCCOUnt. 
 
 SECOND EXAMPLE. 
 
 Case 1. On a Losing Market. 
 
 Pro-formd sales, if arrived sound, £350 
 
 Deduct freight and duties, 100 
 
 250 
 
 Being damaged, the goods did produce, ,£175 
 
 Deduct freight and duties, 100 
 
 Depreciation 70 per cent, £175 
 
 Case 2. On a Gaining Market. 
 
 Pro-formd sales, if arrived sound, £850 
 
 Deduct freight and duties, 100 
 
 750
 
 Adjustment of Particular Average on Goods. 321 
 
 Being damaged, the goods did produce, 425 
 
 Deduct freight and duties, 100 
 
 325 
 
 Depreciation 56§ per cent, c£425 
 
 This example shows, without any comment, that 
 the underwriter is by this mode of adjustment in- 
 volved in the rise and fall of the market : for in 
 both cases the true depreciation is the same, viz. : 
 — one half, — and the freight and duties are the 
 same in both. 
 
 But that the principle will not admit of general 
 application, may be shown by analyzing the two 
 cases ; — thus, we find, that on a losing market the 
 merchant receives not only his full indemnity, but 
 .£50 more than he would have received if the goods 
 had arrived sound, viz. : — 
 
 He receives from the damaged sales, £175 
 
 And from the underwriter, 70 per cent on 
 
 £500, 350 
 
 525 
 
 If the goods had arrived sound, the gross pro- 
 duce woukl have been, 350 
 
 Add loss on the one half supposed not to have 
 
 arrived, 125 
 
 475 
 
 £50 
 
 Thus, on a losing market, the merchant receives 
 £50 more than the sum which would have put him 
 in the same condition as if his goods had arrived 
 sound. 
 
 In the second case, because the market is a gain- 
 ing one, the merchant does not receive his full in- 
 demnity by £17, viz. : — 
 
 41
 
 322 . Particular Average on Goods. — Stevens. 
 
 If the goods had arrived sound, the gross pro- 
 duce would have been, £850 
 He receives from the damaged sales, 425 
 — Of the underwriters 56f per cent on £500, 283 
 
 708 
 Add profit on the one half supposed not to have 
 
 arrived, 125 
 
 833 
 
 The sum deficient of the merchant's full indem- 
 nity, £17 
 
 If we increase either the freight and duties or the 
 true depreciation, the incorrectness of this mode of 
 adjustment is the more strongly shown, viz. : — 
 
 THIRD EXAMPLE. 
 
 Case 1 . On a losing Market, of 50 per cent (as 
 before) let the freight and duties be increased 
 TO £250. 
 
 Then, Pro-formd sales, if arrived sound, £500 
 
 Deduct the freight and duties, 250 
 
 250 
 
 Being damaged, the goods did produce, 250 
 
 Deduct the freight and duties, 250 
 
 * The loss is total, or 100 per cent. 
 
 Case 2. On a losing Market, of 15 per cent let the 
 goods be deteriorated two thirds, and the 
 freight and duties be, as in the last case, £250. 
 
 Then, Pro-formd sales, if arrived sound, £375 
 
 Deduct the freight and duties, 250 
 
 125
 
 Adjustment of Particular Average on Goods. 323 
 
 Being damaged, the goods did produce, 125 
 
 But the freight and duties amounting to £250 
 
 are double the proceeds. — 
 The loss in this case is, therefore, 200 per cent. 
 
 Thus, we find, by increasing the freight and du- 
 ties to £250 (all the other data remaining as before,) 
 the loss is total, or 100 per cent, though the goods 
 are damaged only one half. And if, in addition to 
 this, we assume the goods to be damaged two thirds, 
 and the market to be a losing one of 75 per cent — 
 the loss is 200 per cent. 
 
 There are instances of the freight and duties 
 amounting to seven or eight times the value of the 
 goods ; — let us then imagine, (for the case is too 
 absurd to be reduced to writing,) what would be the 
 result, if these charges were increased to £2000, and 
 the market and degree of deterioration were the 
 same as in the last case ! 
 
 Thus, therefore, this mode of adjustment is in all 
 cases erroneous : — in most cases inconsistent with 
 what it professes to accomplish ; — and in some 
 cases absurd and impracticable. 
 
 And, frst, it is erroneous. — Because, even on a 
 saving market (the only case where it is consistent 
 with itself,) it involves the underwriter in a loss of 
 the freight and duties ; which are charges incurred 
 and paid by the merchant after the contract was en- 
 tered into. These charges also are the effect of 
 mercantile operations ; certainly, they must be in- 
 curred before the goods can be brought on to the port 
 of discharge, and placed in the market for sale, and 
 the cost of the goods is increased to the merchant, 
 by so much as is paid for them ; — but the question 
 is, — is the underwriter's risk to be increased there-
 
 324 Particular Average on Goods. — Stevens. 
 
 by ? He receives a premium on the amount of the 
 first-cost of the goods, to indemnify the merchant 
 against any damage which may happen to them ; — 
 and it has been said, speaking of a total loss, (and 
 it will equally apply to a partial loss,) ' the insurer 
 engages so far as the amount of the prime-cost or 
 value in the policy, that the thing shall come safe :' 
 that is, — the value of the thing he insured at the 
 t L. Mans- outsct. He has no concern in any subsequent value.' 
 Rep. 1170. "^ This may be considered as an answer to the argu- 
 ment, that the freight and duties being lost in con- 
 sequence of the sea-damage, the insurer is, conse- 
 quently, liable to pay them. 
 
 Secondly, — this mode of adjustment is inconsist- 
 ent. — For while it necessarily involves the under- 
 writer in the fluctuation of the markets, (and of 
 course in the speculations of the merchant,) by pro- 
 fessing to grant the merchant a full indemnity for 
 his goods having arrived in a damaged state, it ef- 
 fects this only in one instance, viz. : — precisely a 
 saving market. — On a gaining market, (with the 
 data in section in,) the indemnity is not complete, 
 while on a losing market, the merchant is put in a 
 better condition than if his goods had arrived sound. 
 Thirdly, — this mode cannot be acted on gener- 
 ally. — Because cases may occur where it would be 
 highly absurd to expect the insurer to indemnify the 
 assured for his loss. 
 
 Article 4. On the Adjustment of a Particular Av- 
 erage by a Comparison between the gross pro- 
 duce of the Sound and Damaged Goods. 
 
 It will appear evident, that the three former modes 
 will not admit of general adoption. 
 
 It has been seen that the first mode is objection- 
 able, — because, by not having a reference to the 
 
 I
 
 Adjustment of Particular Average on Goods. 325 
 
 markets, there are no means of ascertaining the ex- 
 tent of the deterioration, nor of indemnifying the 
 assured. On the second mode, by having no refer- 
 ence to the prime-cost, the demand on the under- 
 writer (for no quantum of damage can be made 
 out, because no relative depreciation is established,) 
 must entirely depend on the state of the markets, 
 and, in consequence, on the speculations of the 
 merchant. To the third mode, though it has indeed 
 a reference to both the markets and the prirne-cost, 
 the objections have just been detailed. 
 
 The desideratum is, — to obtain a uniform meas- 
 ure, or standard of adjustment, which can be made 
 generally useful ; and the result of which will be 
 the same, whether the markets rise or fall, or whether 
 the charges are increased or diminished ; — and 
 which, while it affords that indemnity to the assured 
 to which he is fully entitled, does not subject the in- 
 surer to those claims with which, agreeably to his 
 contract, he has no concern. 
 
 The following examples will show that this end 
 may be obtained by an adjustment on the Gross Pro- 
 ceeds of sale. But first let it be admitted, — as it 
 is imagined it must be by every intelligent man con- 
 versant with the true principles of insurance, — that 
 the underwriter only insures the physical safety of 
 the commodity, and of course agrees to pay only the 
 amount of the physical damage it actually sustains." u vide infra, 
 
 art. 8. p. 338. 
 
 FIRST EXAMPLE. 
 
 (On the data, p. 297.) 
 
 ^ Vide note 
 sup. p. 303. 
 
 Market. 
 
 Saving. Losing. Gaininj;. 
 
 Pro-formd gross produce of sound sales, £600. 350. 850. 
 
 Gross produce being damaged, 300. 175. 425. 
 
 Depreciation 50 per cent, JE300. 175. 425.
 
 326 Particular Average on Goods. — Stevens. 
 
 SECOND EXAMPLE. 
 
 Let all the data be altered; 
 
 ex. gr. INCREASED. 
 
 Interest, £750 
 
 Deterioration, three-fourths 
 Charges, £200 
 
 Loss, on a losing market ) £75 per cent on 
 
 Profit, on a gaining market ) ^^^ interest. 
 
 The then adjustment will be as follows : — 
 
 Market. 
 
 Saving. Losing. Gaining. 
 
 Pro-formd gross 
 produce of 
 sound sales, £950 : : 0. £387 : 10 : 0. £1512 : 10 : 0. 
 
 Gross produce 
 being dam- 
 aged, 237: 10: 0. 96: 17: 6. 378: 2: 6. 
 
 Depreciation 
 
 75 per cent £712: 10: 0. £290: 12: 6. £1134: 7: 6. 
 
 THIRD EXAMPLE. 
 
 Let all the data be altered again ; 
 
 ex. gr. DECREASED. 
 
 Interest, .£250 
 
 Deterioration, one-fourth 
 
 Charges, ^50 
 
 Loss, on a losing market i £25 per cent on 
 
 Profit, on a gaining market ) ^^^ interest. 
 
 Then the adjustment will be as follows : —
 
 Adjustment of Particular Average on Goods. 327 
 
 Market. 
 
 Saving. Losing. Gaining. 
 
 Pro-fonnd gross 
 
 produce of 
 
 sound sa\Qs, .£300:0:0. .£237:10:0. £362:10:0. 
 
 Gross produce 
 
 hemg damaged, 225:0:0. 178: 2:6. 271:17:6. 
 
 Depreciation 
 
 25 per cent, £75:0:0. £59: 7:6. £90:12:6. 
 
 Let the data be the same as in the third example 
 in the precedine; article." '*' vide sup. 
 
 ^ ° art. 3, p. 318. 
 
 FOURTH EXAMPLE. 
 
 Case 1. 
 
 Pro-formd gross produce of the sound sales, £500 
 
 Gross produce, being damaged, 250 
 
 Depreciation 50 per cent, £250 
 
 Case 2. 
 
 Pro-formd gross produce of sound sales, £375 
 
 Gross produce, being damaged, 125 
 
 Depreciation 66f per cent, £250 
 
 Thus, this rule is shown to be simple in its opera- 
 tions and uniform in its result. 
 
 But it has been asserted that ' in cases where the 
 charges should exceed the gross produce, the assured 
 would always receive short of a total loss, notwith- 
 standing he had paid a premium to be fully indenmi- 
 fied.'" In reply to this, let us put the following « Wesk. 24. 
 case : — A merchant effects insurance on two kinds 
 of goods : on the one the charges are, as usual, con- 
 siderably less than the value of the goods ; on the
 
 328 Particular Average on Goods. — Stevens. 
 
 other they are considerably greater ; both parcels 
 arrive in bulk, but wholly damaged and spoilt for all 
 purposes whatsoever ; — then, ' why,' it may be 
 asked, — ' is not the assured entitled to claim a total 
 loss in the one case as well as in the other ?' The 
 assertion seems grounded on the assumption, either 
 that the goods are not wholly damaged, or that 
 goods which were before so damaged as to be totally 
 worthless, are rendered intrinsically of value by cer- 
 tain charges having been paid on them. Or it may 
 be meant, that the merchant would always receive 
 short of a total loss, (quoad him,) i. e. less than his 
 full indemnity after he had paid the freight and 
 duties; — which is admitted. But it is asked, in 
 return, of the advocates for an adjustment on the 
 basis of the net proceeds, — ' if, in the case of goods 
 being wholly damaged, the underwriter be called 
 upon to pay no more than a total loss, or a hundred 
 per cent on his subscription ; why, if the goods be 
 partially damaged, ex. gr., one-half should he be 
 expected to pay a greater proportion than ffty per 
 cent, (i. e. one-half) of his subscription r' All these 
 anomalies arise from not bearing in mind, that the 
 insurer only guarantees the safe landing of the 
 goods, and that there his risk ends. (1) 
 
 It will appear evident to any one in the habit of 
 calculations of this kind, that if the freight and 
 
 (1) It is very material to recollect this in the adjustment of 
 claims for particular average. The insurcr''s ri^k ends on the 
 landing of the goods. If the goods be sea-damaged it is on 
 the landing therefore, and then only, that the true deprecia- 
 tion in value, as affects the insurer, can be ascertained. And 
 if there be no market for such goods at the time ; or the con- 
 signee does not choose to sell them ; or, as at some foreign 
 ports it frequently happens, if he suffer them to remain in the 
 custom-house till it suits his convenience to pay the duties and 
 take them out ; — in all of these or similar cases the insurer 
 is to be borne harmless. He in the words of the policy, — 
 only insures the goods ' from the loading thereof aboard the 
 ship until the same shall be discharged and safely landed.'
 
 Particular Average on Goods. — Stevens. 329 
 
 duties were ad valorem, there would no longer be 
 anj difference of opinion between the assured and 
 the insurer, — for the result of the adjustment on 
 the net proceeds being then the same as on the gross 
 proceeds, it would be immaterial which principle was 
 adopted : — for if an equal proportion be taken from 
 unequal sums, the remainders will bear the same 
 proportion to each other as the gross sums did before 
 the deductions were made. (1) It is indeed, solely 
 in consequence of the freight and duties being the 
 same, or nearly the same, on the damaged as on the 
 sound goods, or by their not being proportioned on 
 each, that on the net proceeds the insurer is made to 
 pay the whole or a part of them ; and that on the 
 gross proceeds the assured does not receive his full 
 indemnity. 
 
 On an attentive perusal of the foregoing pages, 
 it will be found, that the mode of adjustment con- 
 sidered in this article is peculiarly adapted to claims 
 for partial loss on goods sea-damaged ; — not pnly 
 from the simplicity of its operations, but from its 
 being divested of all the objections made to those 
 treated of in the former articles ; — there can indeed 
 be only one objection to it, which is, that it does 
 not put ' the merchant in the same condition which 
 he would have been in if the goods had arrived free 
 from damage,' — but that, it only indemnifies him 
 against any injury which the goods may sustain by 
 their being depreciated in value in consequence of 
 sea-damage ; — which is saying, in other words, — 
 
 (1) This servos to sliow the uselessncss of deducting the 
 discount (as is customary) from tlic sound and damaged sales, 
 Avhen it is tlie same per ccntagc on hoth ; but whicli is only 
 necessary when the discount differs on sales by auction from 
 those by private contract. From this, and other instances, 
 which might be given of circuitous modes of (calculation, we 
 may infer that mucli time and trouble would be saved to all 
 parties if a little more attention were paid to the study of first 
 principles, and to their bearings on the subject before us. 
 
 42
 
 330 Particular Average on Goods. — Stevens. 
 
 that ' the contract of insurance does not afford, ivhat 
 it ivas never intended it should afford, — a mercan- 
 
 Article 5. Of the assured's indemnity ivhen the 
 Adjustment is made on the Gross Proceeds. 
 
 As it has been seen that the merchant cannot ob- 
 tain his full indemnity by that mode of adjustment 
 which is stated to be the only correct one, it may be 
 expected that something should be said on the remedy 
 which he ought to have from some other source. 
 
 On this subject, it is to be regretted that, as far as 
 regards the present practice, nothing satisfactory can 
 be said. But as both parties are now well acquainted 
 with the principle of adjustment, there will be no 
 disappointment on that head. 
 
 The loss that the merchant sustains on a saving 
 market, (and with no other will it be contended that 
 the underwriter has any concern,) is the freight and 
 duties on that part of the value of the goods which 
 is supposed not to arrive in consequence of its being 
 deteriorated in value. The landing charges being 
 comparatively very small, are not noticed. 
 
 With regard to the freight, — that may be claimed 
 on delivery of the goods ; and however much they 
 may be depreciated in value by sea-damage, the full 
 sum must be paid for freight according to agreement. 
 
 The ordinance of Amsterdam, which, it has been 
 noticed, particularly recognizes the principle of the 
 gross proceeds in the adjustment of losses of this 
 kind, provides a mode, by which the merchant may 
 indemnify himself against any loss from this source ; 
 — it allows the shippers or consignees to insure the 
 freight which must be paid in the case of a safe 
 voyage ; (i. e. of arrival) with the condition, that 
 the underwriters shall ' pay only the estimate of the
 
 Mjustment of Particular Average on Goods. 331 
 
 average fallen on the goods, and no more, and in 
 case of a total loss returns may be demanded from 
 him who has insured on the freight.' These latter 
 words appear to mean, as they are explained in the 
 rules established afterwards by the Department of 
 Insurance in the same city, — that ' in case of total 
 loss, the freight and usual charges having not been 
 paid, the underwriter's risk shall be forfeited, (i. e. 
 given up,) save a half per cent, which is allowed to 
 
 him.'^' y Rules of the 
 
 The loss of duties ought certainly to be made r.%^. ^^^' 
 good to the merchant by the revenue ; and this 
 principle is acknowledged 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 deterioration, generally 
 falls short of his loss. 
 
 Though the retinn of duty, however, 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, be- 
 cause the gross produce includes 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 it has been seen, 
 that it is by the adjustment on a comparison of the 
 gross proceeds of sale, and by that alone, that the 
 underwriter has no concern with the duties. The 
 return of the duty ought therefore to be made good 
 to the merchant ; he having i)aid the duty and borne 
 the loss. On the assumption that the merchant 
 were fully indemnified against cdl loss, by the un- 
 derwriter, from the arrival of the goods in a damaged 
 state, it is admitted, that he would be a gainer of 
 the sum in (juestion. 
 
 If an adjustment had been made on tlie basis of 
 the net proceeds, — when the merchant received n
 
 332 
 
 Particular Average on Goods. — Stevens. 
 
 return of part of the duty, he ought to pay it over 
 to the underwriter ; and he might safely pay the 
 whole sum, for it would rarely, if ever happen, on 
 such an adjustment, that a greater proportion had 
 not been already received of the latter, 
 z Lord c. J. It has been suggested by high authority,^ that if 
 en orougi. ^j^^ merchant mean to be indemnified against the loss 
 of the freight and duties, and the loss on the goods 
 arriving damaged at a profitable market, he may in- 
 sure against such loss, by valuing his goods in the 
 policy at the expected market price, — ' or by sti- 
 pulating, that in case of loss, it shall be estimated 
 according to the value of like goods at the port of 
 delivery.'' But this mode it is submitted cannot be 
 recommended, — because if there were no other ob- 
 jections, it would be paying a premium on the whole 
 amount of the freight, duties, and expected profit, 
 which (sometimes amount to very considerably more 
 than the goods themselves,) to insure against the con- 
 tingent event of the loss of a part. With respect to 
 the freight, a question occurs, — whether the mer- 
 chant having no direct interest in it, he not having 
 paid it in advance, can legally insure it?'' (1) 
 
 a 12 East's 
 Rep. 639, 
 
 b 5 Term 
 Rep. 709, 
 
 (1) The rules of the Amsterdam Insurance department, be- 
 fore quoted, provide against any loss to the merchant from a 
 settlement of the claim on a comparison of the Gross Produce, 
 as follows : — 
 
 ' The loss or average befallen merchandize by any unfore- 
 .seen accident during the voyage, or after arrival at the place 
 of its destination, must be borne by the gross ca])ital, in pro- 
 portion to the value at which such goods might otherwise have 
 been estimated. Though, on the other hand, the shippers, 
 owners or consignees are allowed to insure for the amount of 
 damage they are liable to sustain from the merchandize thus 
 averaged, and also for all customary charges as when such 
 merchandize were arrived safely in good condition, by which 
 the underwriters on this insurance are held responsible for 
 the rate per centage on their respective sums that the conse- 
 quences of any loss or average shall amount to. And where 
 in case of total loss the freight and other usual charges may
 
 Adjustment of Particular Average on Goods. 333. 
 
 Article 6. Of the extra charges, «mm^/rom the 
 Sale of the Damaged Goods. 
 
 Though there has been much difference of opinion 
 on the unJervvriter being liable to a loss of the ireight 
 and duties, {i. e. the ordinary charges on the goods) 
 and the consequence^ incurred by involving them in 
 the adjustment, there appears to have been no dis- 
 pute as to his liability to the extra charges. 
 
 These charges are incurred by the goods being Charges on 
 damaged, and by their consequent sale by auction ; i^^consti- 
 this mode of disposing of the damaged goods being "ute a part of 
 
 the Ic 
 
 not have been paid, the nnderwriter's risk shall be forfeited, 
 save a half j^cr cent which is allowed to him.'* That is, he 
 shall return the premium, less a half jjcr cent. 
 
 In Spain, it is customary, and according to law, to deduct 
 from the /rc/^/<f the amount of average on goods shipped in 
 Spanish America. In consequence of this, insurances on 
 goods from those ports, are in fact, free of particular average. 
 I am not aware how it would be regulated, in case the loss on 
 the goods exceeded the value of the freight. 
 
 The Essay before mentioned, (which appeared at Liverpool 
 a few years ago,) suggests a remedy to the merchant for the 
 loss of freight in a settlement on the gross proceeds, — by pro- 
 posing that the owner of the ship should allow that proportion 
 to the merchant, and demand the same of the underwriter on 
 the freight. This appears to be the most equitable mode of 
 indemnifying the assured against a loss of this kind. 
 
 * As a matter of curiosity, I give a list of the documents required in 
 Amsterdam for regulating any loss or average, viz. : 
 ' J. The protest of the ship-master and the crew. 
 
 2. Attested copies of officers' fees and other charges at the Admiralty 
 office. 
 
 3. Attested copies of the deed for empowering the inspectors, (sur- 
 veyors) — and of their fees. 
 
 4. Account of sales of the merchandize averaged. 
 
 f). Account of extra charges, not included in the account, No. 2. 
 
 G. Bills of lading; to prove the cargo to be the same as insured. 
 
 7. Original invoice ; ])roving the insurance not to have exceeded the 
 value of the goods insured ; for where imaginary profit is insured the 
 same must be intimated to the underwriters, and stated as such in 
 the policy, otherwise it becomes invalid.'.
 
 334 Particular Avera8;e on Goods. — Stevens 
 
 to 
 
 adopted as the best, and perhaps the only means of 
 ascertaming then* real value. It may, it is true, be 
 customary to sell the same species of goods {ex. gr. 
 colonial ])roduce,) when arriving; sound, by public 
 sale ; but as there is no obligation on the merchant 
 to dispose of them in this way, it is proper that the 
 charges on the damaged goods should form a part of 
 the loss. 
 
 Two modes have been adopted in apportioning 
 these charges ; the result of which in some cases 
 makes a material difference to the parties. 
 
 It appears, from the manuscript copies of adjust- 
 ments, before alluded to, that the mode in general 
 use was, to deduct the extra charges from the 
 amount of the damaged sales before the quantum of 
 loss was ascertained. The question then occurs, — 
 whether the insurer (assuming the property to be 
 fully insured,) shall pay more or less, according to 
 the goods coming to a losing or a gaining: market ; or 
 whether he shall in all cases pay the amount of the 
 charges, — neither more nor less ? 
 
 On analyzing the principle of the charges being 
 deducted from the damaged sales we shall find the 
 effect to be as follows : — 
 
 First, — on a profitable market the insurer pays 
 only such a proportion of the charges as the amount 
 of the sound value is proportional to the amount of 
 the interest ; — ex. gr. Let the value, if the goods 
 had arrived sound, be £1000, and the interest at risk 
 be £500 — no matter in what degree the goods are 
 deteriorated ; — the insurer will then pay only half 
 the extra charges. 
 
 But secondhj, — on a losing market — let the 
 amount of the interest be £500, and the sound value 
 only £250, and the insurer will then pay twice the 
 amount of these charges. 
 
 Thirdly, — there is but one case, on this mode of 
 calculating, where the insurer pays the precise amount
 
 Adjustment of Particular Average on Goods. S36 
 
 of the extra charges — L e. when the amount of 
 the interest is the same sum as the gross proceeds 
 of the sound goods ; — which is of course less than 
 a saving market. 
 
 No other principle will therefore bear general ap- 
 plication, than that of adding the extra charges to 
 the amount of the partial loss itself, and apportioning 
 the whole on the interest, — which is the present 
 mode of adjustment. 
 
 Article 7. Of the Mode of adjusting a partial 
 LOSS, (properly so called) on Goods. 
 
 The mode of adjustment hitherto treated of is, a 
 pecuniary loss to the assured, in consequence of the 
 merchandize insured being deteriorated in value by 
 sea-damage. A partial loss, properly so called, is a 
 total loss of a part of the interest : — ex. gr. in an 
 insurance on twenty hogsheads of sugar if one be 
 washed out, that is called a partial loss. 
 
 On the mode of adjustment of this kind of loss 
 there is no difference of opinion ; — the amount lost 
 must be paid for at the prime cost, or the value in 
 the policy. Because the goods never having arrived, 
 no reference can be had to the market price at the 
 port of discharge; that being resorted to merely lo as- 
 certain the quantum of damage. Whenever there is 
 a total loss of any part of the interest it must be set- 
 tled in the same manner as a total loss of the whole. 
 
 When a partial loss and a particular average both 
 occur on the same interest, — the most correct prac- 
 tice is to adjust them separately ; but it may be 
 proper to observe that this is not absolutely neces- 
 sary. For, from the amount of the interest being 
 the basis of the insurer's lialjility, and the market 
 only applying to the part deteriorated, the result is 
 precisely the same, whether they are involved to- 
 gether or separated.
 
 336 Particular Average on Goods. — Stevens. 
 
 This case could not escape the quick-sightedness 
 of 3Iagens, who gives an illustration of it in his very 
 
 <= 1 Magens, uscful work on insurance." 
 
 ^^- An example may not be improper here to show 
 
 the truth of the above observation. 
 
 Let all the data be the same as assumed in page 
 297, and let the interest be 20 hogsheads of clayed 
 sugar ; — 10 of which are deteriorated in value, and 
 the other 10 washed out. — 
 
 Case 1. The Particular Average and the Partial 
 Loss adjusted together. 
 
 Amount of interest .£500. 
 
 20 hogsheads, if arrived sound, would have produced, .£600 
 10 hogsheads, arrived damaged, did produce, 150 
 
 Loss and depreciation in value, 75 per cent, .£450 
 
 .£500, (amount of interest,) at 75 per cent, .£375 
 
 Case 2. The Particular Average and the Partial 
 Loss adjusted separately. 
 
 First. The Particular Average 
 on 10 hogsheads damaged : — 
 
 If they had arrived sound, they would have produced, .£300 
 But being damaged, they did produce, 150 
 
 Depreciation in value 50 per cent, 150 
 
 .£250, (amount of the interest damaged,) at 50 per 
 
 cent, i^l25 
 
 Secondly. The Partial Loss 
 of 10 hogsheads washed : — 
 
 The value of 10 hogsheads (half the interest,) 250 
 
 As in Case 1, .£375
 
 Adjustment of Particular Average on Goods. 337 
 
 It may be useful to notice here, that though by a 
 particular average and a partial loss being adjusted 
 together, the result is the same as on a separate ad- 
 justment of each: — Yet it is far from being so 
 in the case of a particular average, where various 
 articles are blended together in one statement. 
 
 EXAMPLE. 
 
 First : — 
 
 An Adjustment of a Particular Average of several 
 Articles together : — 
 
 10 hogsheads of Sugar, valued in 
 10 bales of Cotton, 
 
 the policy, at 
 ditto 
 
 
 ^250. 
 300. 
 
 10 casks of Coffee, 
 
 ditto 
 
 
 150. 
 
 
 Interest insured. 
 
 £700. 
 
 Depreciation in value : — 
 
 If the said goods had arrived 
 
 sound, they would have pro- 
 
 duced as follows : — 
 
 
 
 
 The Sugar, 
 
 
 £500 
 
 
 The Cotton, 
 
 
 100 
 
 
 The Coffee, 
 
 
 250 
 
 £850 
 
 Being damaged they did produce : — 
 
 
 
 The Sugar, 
 
 
 200 
 
 
 The Cotton, 
 
 
 25 
 
 
 The Coffee, 
 
 
 50 
 
 275 
 
 Depreciated in value 67,647 per cent, £575 
 
 Claim, viz. 
 
 £700 (amount of interest,) damaged 67,647 per cent, is 
 
 ^ £i7'3 : 10 : 7. 
 
 Secondly : — 
 
 An Adjustment of a Particular Average of several 
 Articles separated. 
 
 1. On 10 hogsheads of Sugar, viz. 
 
 Value as above, £2o0. 
 
 Difference between the sound and damaged sales of 
 
 Sugar as above, x.iOO. 
 
 Depreciated in value 60 per cent. 
 
 43
 
 o38 Particular Average on Goods. — Stevens. 
 
 Claim, viz. 
 
 JE250 (amount of interest) damaged 60 per cent, £150 
 
 2. On 10 hales of Cotton, viz. 
 
 Value as above, jE300. 
 
 Difference between the sound and damaged sales as 
 above, £75. 
 
 Depreciated in value 75 per cent. 
 Claim, viz. 
 jE300 (amount of interest) damaged 75 per cent, £225 
 
 3. On 10 casks of Coffee, viz. 
 
 Value as above, £150. 
 
 Difference between the sound and damaged sales as 
 
 above, £200. 
 
 Depreciated in value 80 per cent. 
 Claim, viz. 
 £150 (amount of interest) damaged 80 per cent, £120 
 
 £495 
 
 Therefore, the total claim by involving the whole 
 in one adjustment is £473: 10: 7, but, by making 
 separate adjustments, it is £495: 0: 0, which is 
 the sum that ought to be paid by the insurers. (1) 
 
 Article 8. On the Selling whole packages of 
 Goods, ivhen only part is daynaged. 
 
 It may perhaps be expected, that something should 
 be said on the subject of selling whole packages of 
 manufactured goods, when only a few pieces or 
 articles in each are damaged. This is customary in 
 the United States, at Leghorn and other ports in 
 the Mediterranean, Sec. (2) 
 
 (1) N. B. This is on the assumption that average is to be 
 paid separately on each species of goods. 
 
 (2) There is a strange custom at Quebec and some other 
 transatlantic ports, — that if, on the survey of a package it is 
 supposed to be damaged five per cent or upwards, the whole
 
 Adjustment of Particular Average on Goods. 339 
 
 If the damaged goods were lotted separately from 
 the sound, and the sale were as fairlj conducted as 
 if the underwriters had nothing to do with it, and a 
 bona fide sound price of the damaged goods could 
 by these means be obtained, — this mode of selling 
 the damaged and sound goods together would make 
 no diflerence, (1) and nothing need be said on the 
 subject. But the fact is, that in advertising such 
 sales, a few unmeaning words are made use of, — 
 such as ' to be sold on account of the underwrit- 
 ers ;' or ^for the benefit of the underwriters,' — 
 and in consequence the goods are often sold at a 
 lower price than their real value. 
 
 The reason given by the merchant for selling the 
 
 is sold ' on account of the underwriters,' as it is called — if 
 under Jive jier cent the consignee takes the goods to account. 
 (1) The following example will show, that on the ahove 
 principle, the sound and damaged goods being sold together 
 can make no difference to the underwriter. 
 
 Example. 
 
 Interest. One trunk containing 50 pieces of print- 
 ed calico, valued at •- .£300. 
 
 Damaged. 25 pieces which sold for £50. 
 
 Sound. 25 pieces which sold for JEIOO. 
 
 First Statement : — 
 
 If sound the 25 pieces would have produced 100 
 
 But being damaged they produced only 50 
 
 The damage is 50 per cent on 25 pieces X50 
 
 Second Statement : — 
 If sound the 50 pieces would have produced 200 
 
 But 25 pieces being damaged, they produced only 150 
 
 The damage is 25 per cent on the 50 pieces £50 
 
 On the frst statement 25 pieces valued at £150, damaged 
 
 50 per cent is =£75. 
 
 On the second statement 50 pieces valued at £'M)i), damaged 
 
 25 per cent is =£75.
 
 340 Particular Average on Goods. — Stevens. 
 
 whole package is, — that by some of the pieces 
 being damaged the assortment is broken and rendered 
 unsaleable, and thus the value of the whole is les- 
 sened to him. In reply to this, let it be asked — 
 what is there in the policy that subjects the under- 
 writer to a loss proceeding from such a cause? — If 
 he is to pay for the breaking of an assortment he 
 ought to have been consulted in the making of it. 
 And if he were to be liable to a loss on the sale of 
 the sound goods, because the merchant sustains a 
 loss on them from the effects of a peril of the sea ; 
 he might, jDerhaps with equal propriety, be called 
 upon for a loss from a fall in the markets, because 
 the ship was detained on the voyage, (from having 
 sprung a leak, and put into a port to refit,) — for 
 this loss is also an effect of a peril of the sea. 
 
 But the most satisfactory reason why the under- 
 writer is not liable is, (as it has been noticed in the 
 preceding articles,) — because he is accountable only 
 for the actual damage done to the thino; insured. 
 — He engages to guarantee the assured against the 
 direct operation of sea-damage, but not against the 
 e 2 vaiin consequential results." 
 
 (/om. p. 104. •'
 
 CHAPTER IX. — Adjustment of Particular 
 Average on Goods. 
 
 [Benecke. Part of Ch. 9.] 
 
 The term ' particular average' denotes, in general, Particular 
 every kind of expense or damage, short of a total average 
 loss, which regards a particular concern, and which 
 is to be 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 un- 
 derwriter is liable. Thus the loss of a sail split or 
 blown away may, in general, and without reference 
 to the cause of the loss, be called a particular aver- 
 age ;" but, with respect to the underwriter, it is a a code, § 403. 
 particular average only, if the loss occurred under 
 such circumstances as to make the underwriter an- 
 swerable for it ; if otherwise, it is said to belong to 
 wear and tear, which expression is then used to dis- 
 tinguish such loss from particular average. And al- 
 though in the law all kinds of expenses, short of a 
 total loss, are recoverable under the head of aver- 
 age :'' yet there is this difference (at least in this b i Rob. Adm. 
 country) between a deterioration in value of the ^^^- 1' ^'^'^• 
 thing insured, or particular average in a stricter 
 sense, and expenses incurred for the preservation of 
 the same thing, that such expenses may be claimed, 
 although there be no claim for particular average, 
 either because the policy was warranted free from 
 particular average, or because the percentage was 
 short of that for which the underwriter becomes 
 liable. 
 
 Notwithstanding what has been said against the 
 expression particular average, still I think it ought
 
 342 
 
 Particular Average on Goods. — Benecke. 
 
 to be retained, not only as being universally adopted 
 and understood, but also because it is more ex- 
 pressive than the term partial loss, which may also 
 convey the idea of a total loss of a part, in which 
 c Stevens's scnsc it is somctimes used." The word average, 
 ^ bsay, 1 e . ^yjjj^jgygj. [^^ original meaning may have been,** is 
 d See above, uuderstood uow as distinguishing: the loss to which 
 
 p. \)G. ... So 
 
 it is applied from a total loss ; and the word par- 
 ticular clearly distinguishes it from general C07itribu- 
 tion or general average. To use the term particu- 
 lar average, as denoting also a total loss of a part, 
 is certainly erroneous, and ought to be avoided : for 
 these two kinds of losses are perfectly distinct from 
 each other. A total loss of a part may be recover- 
 ed, where a particular average would not be re- 
 coverable. 
 
 It is the object of this chapter, to explain the 
 mode of ascertaining the amount of the underwriter's 
 liability in cases of particular average on goods and 
 on ship ; where we shall have to distinguish, whether 
 the thing insured did or did not reach the place of 
 its destination. 
 
 Goods ar- 
 riving sea- 
 damaged at 
 the place of 
 their destina- 
 tion. 
 
 The loss is to 
 be adjusted 
 upon a com- 
 parison of the 
 gross proceeds 
 of the sound 
 and damaged 
 goods. 
 
 And first as to goods arriving damaged at the 
 place of their destination. — It has been fully shown 
 in the first chapter, that there are two modes of in- 
 suring goods, and of indemnifying the assured : one, 
 according to which the assured is to be placed in the 
 situation after a loss, in which he would have been 
 if the loss had not taken place ; and another, by 
 which the assured is to be placed, as to the goods 
 insured, in the situation in which he was before the 
 adventure ; that of these two modes, the latter is 
 exclusively adopted, and that, according to theory, 
 law and practice, the meaning of a policy on goods 
 (unless it contains different stipulations) is, that in 
 case of deterioration of the goods by any of the 
 perils insured against, the quantity or extent of the
 
 Adjustment of Particular Average on Goods. 343 
 
 deterioration shall be ascertained by comparing the 
 gross amount of the sales of the damaged goods with 
 the gross amount which the same goods would have 
 produced if sound, and that the underwriter shall 
 pay the same proportion of the original value of the 
 goods, including all charges till on board, or of the 
 value in the policy, which represents that original 
 value. — Thus, if a quantity of coffee, valued at 
 £1000, would have sold at 100 sh. per cwt if sound, 
 but on account of being sea-damaged, sells at 75 sh., 
 the amount of the deterioration is one fourth, or it 
 is the same, as to the goods themselves, as if three 
 fourths had arrived sound, and one fourth had been 
 annihilated : the underwriter, therefore, will have 
 to pay one fourth of £1000, or £230. The same 
 sum the underwriter will have to pay, whether the 
 goods come to a favourable or a depressed market, 
 whenever the comparison between the sound and 
 damaged goods shows the deterioration to be one 
 fourth. 
 
 It being thus established, that the underwriter Erroneous- 
 shall have nothing to do either with the state of the "f^ssofaii 
 
 , '111 IT ^ • 1 other modes 
 
 market, or with the loss on landmg expenses, freight, of adjusting 
 duty, &c, accruing in consequence of the deteriora- 
 tion, for this simple reason that no premium is paid 
 for those items ; it will be very easy to show, that 
 all other modes of adjusting particular average, ex- 
 cept that on the principle of the gross proceeds, are 
 erroneous. It will be sufficient to prove, that they 
 all involve those items which are foreign to the con- 
 tract of insurance upon goods. 
 
 These modes arc : 1 . Adjusting the loss on the dif- 
 ference between the sound and damaged sales, with- 
 out a reference to the cost; 2. As a salvage loss ; 
 3. On a comparison between the net produce of the 
 sound and damaged goods. 
 
 the loss :
 
 344 
 
 Particular Average on Goods. — Benecke. 
 
 1. On the dif- 
 ference be- 
 tween the 
 sound and 
 damaged 
 sales ; 
 
 2. As a sal- 
 vage loss ; 
 
 3. On a com- 
 parison be- 
 tween the 
 net proceeds 
 of the sound 
 and damaged 
 goods. 
 
 I. When the underwriter pays the difference be- 
 tween the sound and damaged sales, or, which 
 comes to the same, when he replaces the damaged 
 article with a sound article of the same description 
 and quality, it is clear that the assured ivill be placed 
 in the situation in which he would have been if the 
 loss had not occurred ; that consequently he will be 
 indemnified according to the^r.s^ mode of insurance, 
 which comprises the expenses, duty, and freight, 
 payable at the place of discharge, and the profit or 
 loss of the market, although the insurance was made 
 according to the second mode, by which only the 
 prime cost or value of the goods regards the under- 
 writer. 
 
 II. When the underwriter pays the difference be- 
 tween the prime cost, &c, or betw^een the valuation 
 in the policy which represents the prime cost, and 
 the net proceeds of the damaged goods, the assured, 
 it is true, will be placed in the situation in which he 
 was prior to the adventure ; but he will be so, not 
 only with respect to the goods, for which alone he 
 paid a premium, but also with respect to the charges, 
 freight, and duty, for which he paid no premium ; 
 and moreover, the state of the market will influence 
 the calculation. Supposing the deterioration to be 
 one fourth, and this loss to be counterbalanced by 
 the rise of the market ; then the underwriter will 
 pay nothing, although by his contract he was bound 
 to pay one fourth of the original value. On the 
 other hand, supposing the article to come to a losing 
 market, the underwriter will have to make good the 
 loss of the market over and above the depreciation 
 occasioned by sea-damage. — This mode, in fact, is 
 equal to abandoning goods under circumstances 
 where no abandonment ought to take place. 
 
 III. When the difference of the net proceeds of 
 the sound and damaged goods is made the scale of 
 comparison, to ascertain the quantity of the loss,
 
 Adjustment of Particular Average on Goods. 345 
 
 and to determine the proportion which the under- 
 writer has to pay of the prime cost, fee, or of the 
 value in the policy, then the underwriter's liability 
 will also depend upon the state of the market, and 
 upon the amount of freight, charges, and duty, and 
 will vary with these items. — Suppose the freight, 
 charges, and duty on goods, valued at £1000, to be 
 £100, then, if the gross proceeds of the sound would 
 have been £1200, and the gross proceeds of the dam- 
 aged are £600, the calculation, according to the net 
 proceeds, will be as follows : 
 
 Gross proceeds of the sound goods, £1200 
 
 less charges, &c, 100 
 
 net proceeds, 1100 
 
 (i. e. £1000 cost and £100 profit) 
 gross proceeds of the damaged goods, £600 
 
 less charges, &c, 100 
 
 net proceeds, 500 
 
 loss, 600 
 
 therefore, as £1100 (the sum insured, and £100 
 profit) are to £1000, (the sum insured,) so are £600 
 (the loss after deducting the charges) to 1^><*!^ 
 
 (the sum which the underwriter has to pay.) Now 
 the latter term clearly shows : 
 
 1. That the sum which the underwriter has to 
 pay will decrease, when the profit which the un- 
 damaged article would have yielded increases, be- 
 cause the divisor is then augmented while the divi- 
 dend remains unaltered ; and that it will increase 
 when the profit decreases or is turned into a loss, 
 because in that case the divisor is diminished while 
 the dividend remains unaltered ; 
 
 2. That the sum to be paid by the underwriter 
 will increase with the amount of freight, charges, 
 
 44
 
 346 
 
 Particular Averas^e on Goods. — Benecke. 
 
 Farther 
 remarks. 
 
 Goods sold 
 in bond. 
 
 and duty, which is to be deducted from the gross 
 proceeds. 
 
 Thus it is clear that the gross proceeds, or the 
 market price of the goods, can be the only true scale 
 of comparison to determine the deterioration. 
 
 When damaged goods are sold before the mast, so 
 that the purchaser undertakes to pay the freight, duty 
 and charges, it is evident that he will pay so much 
 less for such goods, as the loss upon freight, &c, will 
 amount to, and that an adjustment of the damage, 
 according to the value before the mast will be equal 
 to an adjustment according to the net proceeds. 
 Goods, for instance, which, subject to all charges, 
 would have been worth 1000/ in a sound state, will 
 not sell for 500/, if the deterioration be one half, 
 and 400/ charges are to be paid on the damaged 
 goods the same as they would have been on the 
 sound : they will sell for 300/ only, because 200/ 
 are lost upon the charges by the deterioration. 
 
 The same remark applies to goods sold in bond or 
 subject to the duty only, if the same duty is to be 
 paid upon damaged as upon sound goods. The pur- 
 chaser of such damaoed goods will pay for them in 
 bond what they would be worth, duty paid, less the 
 whole duty. Consequently, to ascertain the quan- 
 tity of damage of such goods sold in bond, the whole 
 amount of the duty is to be added to the value of 
 the damaged, and to that of the sound goods. Thus, 
 if goods which would have been worth sound 1000/ 
 in bond, sell damaged for 300/, and the duty is 400/, 
 
 the damage is j^^^ = h. 
 
 If such goods cannot be sold for consumption at 
 all, because the duty to be paid on the damaged 
 goods would absorb the whole value ; as when goods 
 Avhich sound would be worth 10/ per cwt in bond,
 
 Adjustment of Particular Average on Goods. 347 
 
 are subject to 10/ duty, and the deterioration is one 
 half ; so that the duty on the damaged goods would 
 be equal to their value, duty paid, and consequently 
 they would leave no net proceeds : in such a case 
 the only way will be to sell them for exportation. 
 But even then a comparison of the value of the 
 sound goods in bond, and of the damaged goods in 
 bond, cannot serve to ascertain the quantity of the 
 deterioration. For the purchaser of such goods will 
 take the increase of damage into consideration which 
 the goods will sustain from the time of sale to the 
 time when they can reach the foreign market, and 
 he will consequently pay less for such goods than he 
 would, if they could immediately be brought into the 
 market for consumption. But the underwriter has 
 nothing to do with this increase of damage : he is 
 liable only to compensate for the deterioration which 
 had taken place at the time when the goods were 
 landed, or at the earliest period at which they might 
 have been ultimately sold. In such cases, therefore, 
 still the adjustment must be made by comparing the 
 value of the sound and damaged goods, duty paid ; 
 or, if such valuation cannot be obtained, an allow- 
 ances must be made for the probable subsequent in- 
 crease of deterioration, in the same manner as must 
 be done, when damaged goods, for any cause not 
 within the policy, are sold later, and consequently at 
 a less price, than they would have fetched, if sold 
 at the proper time. 
 
 When goods are insured to a country where their 
 importation is prohibited, so that they cannot be 
 sold, except for exportation, and this circumstance is 
 known to the underwriter, it appears to me, that the 
 underwriter, who must then be supposed to have 
 taken this additional risk into consideration, cannot 
 complain of an adjustment of the damage, made 
 upon a comparison of the sound and damaged goods 
 in bond.
 
 348 Particular Average on Goods. — Benecke. 
 
 In this country, as well as many others, the rev- 
 enue laws provide that the duty on certain articles 
 if damaged shall be reduced in proportion to the 
 deterioration, so that when the value of the goods, 
 by the damage, is reduced, for instance, to three- 
 fourths, three-fourths of the duty upon sound goods 
 are only to be paid. If this rule were strictly 
 attended to, there would be no difference between 
 an adjustment made according to the difference of 
 the value of sound and damaged goods in bond, or 
 according to that on goods for which the duty was 
 paid : for the purchaser of damaged goods in bond 
 would pay the same price for such goods in bond as 
 for the same goods duty paid, except the propor- 
 tionate amount of the duty which in the former case 
 ^ is yet to be paid. It can make no difference to the 
 
 purchaser, whether this proportionate duty be com- 
 prised in the price which he pays for the goods 
 on which the duty has been paid, or whether he 
 purchase the goods in bond for so much less, as he 
 will be obliged to pay for them to the revenue. 
 Equal proportions being taken from unequal sums 
 leave the same relative difference. 
 
 But if the reduction in the duty be not exactly 
 proportional to the deterioration, or if the whole duty- 
 must first be paid, and a loss must necessarily be in- 
 curred by the expenses of obtaining a repayment 
 and by interest, it is obvious that the purchaser of 
 damaged goods in bond will pay so much less for 
 them, as these extra charges will amount to. If, for 
 instance, a loss of 5 sh. on every cwt of an article, 
 the deterioration of which amounts to one half, must 
 be incurred in recovering the duty, the purchaser 
 will pay only 45 sh. for that article, which without 
 that circumstance would have been worth to him 50 
 sh. Consequently there will be a loss of t^tt or ^V 
 on the duty, or occasio7ied by the duty, with which
 
 Adjustment of Particular Average on Goods. 349 
 
 the underwriter has nothing to do, and it would be 
 wrong to make him pay t¥o of the sum insured. (1) 
 
 As the gross value of the damaged goods, and that How the 
 which the same goods would have had if sound, form Y^^'^ '^' j^^^j 
 
 U 1 • r 1 T /• I 1 • • • damaged and 
 
 the basis or the adjustment or the clann for particu- sound goods 
 lar average, it will be necessary to investigate the lailSd'f '''''"' 
 modes 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 danjage 
 originated 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 commodity 
 is estimated by sworn brokers or merchants. This 
 mode of proceeding may in many instances 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, entirely depend 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 auc- 
 tion, such as colonial produce in London. The 
 public sale of the undamaged part of goods of the 
 same quality will immediately show what the dam- 
 aged would have been worth. But with respect to 
 goods which it is customary to sell by private con- 
 tract, a public sale would not show the real value, 
 because such sale may be supposed in general to be 
 
 (1) ' It is agreed on both sides, that the underwriter is not 
 liable for any loss which may be the ronsrqvenrc of the duties 
 or charges to be paid after the arrival of the commodity at the 
 place of its destination.' By Lawrence, Justice, in Johnson v. 
 Shedden, 2 East, 58].
 
 Particular Average on Goods. — Benecke. 
 
 ^& 
 
 less advantageous than the other. For this reason, 
 as also because the assured cannot 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 circumstances 
 the only w^ay is, to ascertain the value of the sound 
 goods by the estimate of sw'orn brokers or mer- 
 chants, 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 
 goods can be replaced at the time by sound. — It 
 would be very desirable, in order to give to such 
 estimates a higher degree of certainty, that the 
 agents of Lloyd's in foreign places should them- 
 selves inquire into the state of the market, and cor- 
 roborate the opinion of the brokers by their own ; 
 instead of which they frequently content themselves 
 with appointing one of the brokers, the other being 
 appointed by the assured, and certifying the signa- 
 ture of the brokers. — When any doubt remains, as 
 to the fairness of the estimate, in the mind of the 
 adjuster of a claim, he must himself take the trouble 
 of investigating the state of the market, and of com- 
 paring the result of his researches, and of an exact 
 calculation of the cost, with the valuation in the cer- 
 tificate ; but he can have no right to alter the valua- 
 tion, as is sometimes done, according to his own 
 fancy. 
 
 Deductions. When the discount, allowed upon damaged goods 
 sold by auction, differs from that upon sound goods, 
 the discount must, of course, be deducted ; but this 
 is not necessary when the percentage is the same 
 upon sound and damaged goods, as in that case it 
 can have no influence upon the percentage of the 
 deterioration.
 
 Adjustment of Particular Average on Goods, 351 
 
 The extra charges occasioned by the sale of dam- Extra charges 
 aged goods by auction, such as single brokerage, lot °^ ^^^^• 
 monej, commission to the agent of the underwriters, 
 &c, are not, properly speaking, a consequence or a 
 part of the damage ; but they are incurred for the 
 purpose of ascertaining the quantity of the damage : 
 they would not be incurred if the goods had not 
 been insured, and yet the quantity of the damage 
 would in both cases be the same. Those charges, 
 therefore, have nothing to do with the calculation 
 of the damage, but their amount as laid out by the 
 assured, must be added separately to the loss. And 
 this is the present practice in Lloyd's. Were those 
 charges deducted from the gross proceeds of the 
 damaged goods before the quantity of the loss was 
 ascertained, it is clear that the assured w^ould re- 
 ceive on account of the charges more than he laid 
 out, if the goods came to a losing market, and less, 
 if they came to a profitable one. 
 
 No commission on the damaged sales must be in- 
 cluded in the extra charges ; for, when the goods 
 are sold by the assured himself, there is no commis- 
 sion to pay ; and when they are sold by an agent, 
 this charge is not a consequence of the damage. 
 Suppose the goods to be reduced in value to one 
 half, which is the same as if one half had arrived 
 sound, and the other half had been entirely lost. 
 The commission on the damaged goods is then only, 
 as it were, on the first half, which the assured would 
 have been obliged to pay also in the case of a safe 
 arrival, and nothing is to be paid on the other half 
 which has ceased to exist. 
 
 If only a part of the goods insured is damaged, Saio of sound 
 and the assured choose to sell the undamaged also ''"' '""'''^''' ' 
 by auction, the underwriter may be the better sat- 
 isfied, that his loss was not increased by too high a 
 valuation of the sound. The sound and damaged
 
 352 Particular Average on Goods. — Benecke. 
 
 being sold in the same auction, can make no differ- 
 ence in the statement, when of the extra charges 
 those only which were occasioned by the sale of the 
 damaged part are brought to the underwriter's ac- 
 count. 
 
 For instance : of a bale, containing 200 pieces of 
 muslin, insured from Hull to St Petersburgh, valued 
 410/, 109 arrive damaged. The sound part sells at 
 82 Rubles per piece, the damaged 109 produce 5450 
 Rs. 
 
 First calculation. If 200 pieces are insured for 
 410/, 109 are insured for 223/, 95. 
 
 The 109 pieces, if sound, would have 
 
 produced Rs. 8938 
 
 but being damaged, they produced only 5450 
 
 loss, Rs. 3488 
 
 If 8938 lose 3488, then 223/, 9^, will lose £87 4 
 extra charges, 14 16 
 
 £102 
 
 Second calculation. 200 pieces, at 82 rubles, 
 
 would have produced 16400 rubles. 
 
 If 16400 lose 3488, then 410/ will lose 87 4 
 
 extra charges as above, 14 16 
 
 £102 
 
 Or 24/, 17.5, Id, per cent. 
 
 But if the bale contained an assortment of goods 
 of different qualities, and the sound part sells for 
 less, on account of the assortment being broken, this 
 loss cannot be brought to the underwriter's charge, 
 unless it be so stipulated in the policy. For other- 
 wise he would run a risk of which he could not be 
 aware, and which he would not have taken upon 
 himself at the same premium. In cases of this de- 
 scription, the damaged goods must be estimated at
 
 Adjustmeiit of Particular Average on Goods. 353 
 
 what they would have been worth under a supposi- 
 tion that the assortment had not been broken. 
 
 When there is a decrease or increase of weight, Loss in 
 in consequence of damage sustained, the weight ^^'^'^ht. 
 which such goods would have had, if sound, must 
 be brought into the calculation, in order to ascertain 
 the proportion between sound and damaged goods. 
 The best mode of reducing the weight of the load- 
 ing port to that of the port of discharge, is by com- 
 paring undamaged goods of the same description 
 with the invoice, taking the difference of tare, &c, 
 into consideration. 
 
 When a part of goods insured is totally lost, it is Total loss of 
 clear that the underwriter will have to pay the same ^ ^^^^' 
 proportion of the value in the policy which the goods 
 lost bear to the whole of the goods comprised in the 
 valuation. — When of goods comprised in the same 
 valuation, one part is totally lost, and another dam- 
 aged, it will be the same, whether the partial loss 
 and the particular average be adjusted together, or 
 whether each be treated separately : unless it be 
 necessary to show the percentage of the particular 
 average, as considered by itself. (1) 
 
 (1) Let B denote the gross proceeds of the whole, if sound ; 
 D the gross proceeds of the damaged part, C the value in the 
 policy, then the underwriter will have to pay, according to the 
 first method 
 
 ^^ X C. Now, if the m\\\ part of the goods be lost, and the 
 
 , 100 — n m — 1 
 
 rest deteriorated n per cent ; If will be = -^^ — X — ~ B, 
 
 which reduces the above expression to 
 
 /i ^\r f^ 100 — w m-l\ _ lW + nm-n 
 
 The second method will give 
 
 1 ^ , n m — 1 _ lOO-f nm — n 
 m^ ^"100 ^~^;r~ ^- lUOm 
 so that the result of both, under all circumstances, is the same. 
 
 45
 
 354 Particular Averas;e on Goods. — Benecke. 
 
 '&" 
 
 Particular av- When sevei'al articles, comprised in the same pol- 
 erafartSier" icj, are damaged in different proportions, the result 
 comprised in gf an adjustment on each separate article cannot, 
 _je same po - ^^^^^^^ ^l| circumstanccs, be the same with that of an 
 adjustment on the whole. Let, for instance, a quan- 
 tity of coffee and cotton be insured in one policy, 
 the former valued at 500/, the latter at 1000/. Had 
 the former, if sound, been worth 1000/, but in its 
 damaged state sells for 250/, and the latter, if sound, 
 would have sold for 400/, but damaged is worth only 
 200/, the underwriter will have to pay, 
 
 1. If the damage on each article be calculated 
 separately : — 
 
 On the coffee, on 500/, 15 per cent, £375 
 
 On the cotton, on 1000/, 50 per cent, 500 
 
 £875 
 2. If the whole be comprised in one calculation : — 
 value of the goods, if sound, 1400 
 
 damaged, 450 
 
 loss, 950. 
 
 If 1400 lose 950, 1500 will lose • £1017f. 
 
 The results of the two calculations, we see, differ 
 materially, and it is certainly worth while to ascer- 
 tain which of the two ought to be adopted. 
 
 If the policy contain the clause that average is to 
 be paid on each species of goods, then all doubts 
 are removed ; but if no such clause is inserted, it 
 might be contended, that, the Uxo articles being 
 treated in every respect as one, the latter mode of 
 calculation ought to be acted upon. But this is not 
 so. The two modes of adjustment give the same 
 result in two cases only : 1 . When the state of the 
 market, as to both articles, is alike, i. e. when both 
 articles, had they arrived sound, would have given 
 the same percentage of profit or loss upon the first
 
 Adjustment of Particular Average on Goods. ^ 355 
 
 cost or valuation in the policy (for instance, if in the 
 above example the coffee, if sound, would have been 
 worth 600/, and the cotton 1200/.) 2. When the 
 percentage of the deterioration on both articles is 
 the same (as if in the above example the deteriora- 
 tion on both articles had been 50 per cent.) — But 
 when the state of the market, as to the two articles, 
 is different (as in the above example, where there 
 would have been a profit on the coffee, and a loss on 
 the cotton) the results of the two modes of adjust- 
 ment will always be at variance, and, in the latter, 
 the claim of the assured ivill vary ivith the state of 
 the market ; whereas, in the former, the state of the 
 market will have no influence. But it is a rule es- 
 tablished by the law, that the underwriter shall have 
 nothing to do with the state of the market,'' from 
 which it is clear, that f two or more (1) articles are 
 insured in one policy, the damage on each article must ^ ^Le^"^^^'" 
 be adjusted separately, whether the clause ' to pay 
 average on each species of goods'' he or be not in- 
 serted in the policy. 
 
 When goods, in consequence of any of the perils 
 insured against, must be sold short of their destina- 
 tion, and there is either a proper abandonment, or Goods not 
 the loss, owing to its nature, must be treated as a ^p^n 'oniieir 
 total one, without an abandonment, (as when goods destination. 
 saved from a shipwreck cannot be forwarded to their 
 destination, which is a salvage loss properly speak- 
 ing,) the underwriter must pay the difference be- 
 tween the value in the policy, (or the cost, &c,) and 
 the net proceeds of the goods. There is no differ- 
 ence between a salvage loss with, and one with- 
 out an abandonment, except that in the former the 
 
 (1) What has heeii demonstrated here of two articJes, ap- 
 plies evidently to a jfreator nunihcr also.
 
 356 Particular Average on Goods. — Benecke. 
 
 property, after payment of the sum insured, is trans- 
 ferred to the underwriters, and the net proceeds di- 
 vided amongst them in proportion to their respect- 
 ive interests ; and in the latter the sale of the prop- 
 erty is conducted by the assured, and the under- 
 writers, (who in such cases usually agree to a pay- 
 ment on account,) pay the balance of the loss after 
 it is finally settled. 
 
 It has already been shown that, in such cases, if 
 any freight must be paid, the underwriters become 
 liable to bear the loss on the freight so paid also, 
 contrary to the nature of the contract of insurance 
 upon goods, according to which the underwriter on 
 goods ought to have nothing to do with the freight. 
 And although the underwriter must submit to this 
 anomal} , as sanctioned by law and practice, yet it 
 will be not only interesting, but also practically use- 
 ful, to ascertain, under what circumstances he pays 
 more than according to the principles of indemnity 
 he ought to pay. 
 
 Salvage charges, as well as warehouse rent, com- 
 mission on the sale, and other expenses incurred for 
 goods saved from shipwreck, or unloaded at an inter- 
 mediate port, being incurred merely on account of 
 the goods, it is clear that all these charges must be 
 borne by the underwriters upon the goods, whether 
 the commodity be in a sound or damaged state. 
 Those charges are well to be distinguished from 
 freight, if the latter be paid as such, and not as a 
 recompense for the danger and trouble of saving the 
 goods. — Now, if the goods be landed undamaged, 
 and the gross proceeds of their sales equal to the 
 first cost (or value in the policy,) and to the freight 
 and duty paid, or above these items, there is no loss 
 on the freight. If the gross proceeds are above the 
 first cost and duty, but below the first cost, duty, 
 and freight, it is evident that the market at the
 
 Adjustment of Particular Average on Goods. 357 
 
 intermediate port is above the market of the port of 
 departure, and that not the whole freight, but onlj 
 part of it is lost. But if the gross proceeds of the 
 goods are below the first cost and the duty, then the 
 whole freight is lost. — Suppose the value in the 
 policy to be 1,000/, the freight paid at the inter- 
 mediate port 200/, and the duty 100/. Then if the 
 goods produce 1,200/, there was no loss on the 
 goods, but 100/ on the freight; if 1,100/, nothing 
 was lost upon the goods, but 200/ upon the freight ; 
 if 800/, 300/ were lost on the goods, and 200/ on 
 the freight. 
 
 The same scale of comparison will serve to ascer- 
 tain the loss upon the freight of damaged goods. If, 
 for instance, the goods, if sound, would have pro- 
 duced 1,000/, or less, the loss upon the freight is 
 200/, &c. 
 
 When a ship is obliged to unload in an intermedi- Goods sold in 
 ate port for the purpose of repairing, and a part of d"atP porTon 
 the cargo is so damaged as to be unfit to proceed to account of 
 its destination, and for that reason is obliged to be aged^ 
 sold, the whole freight for such goods becomes due 
 after the arrival of the ship at the port of her des- 
 tination. For those goods would have been carried 
 to that place, but for a circumstance for which the 
 ship-owner is not liable. It has been said that in 
 such cases the loss must be settled as a salvage loss, 
 and consequently that the underwriter upon the 
 goods must bear the loss upon the freight also, and 
 this rule, indeed, has been frequently followed in 
 practice. The reason assigned for this mode of pro- 
 ceeding is, that it is for the interest of the under- 
 writer that the goods should be sold. The deterio- 
 ration, if the damaged goods were re-shipped, would 
 increase, and probably terminate in a total loss. 
 But is it true that such goods are sold o?ily for the 
 benefit of the underwriter ? Supposing the deterio-
 
 368 Particular ^veras^e on Goods. — Benecke 
 
 a" 
 
 ration to amount to one half, it is dear that if the 
 goods were re-shipped, and could reach the place of 
 their destination even without a farther increase of 
 deterioration, would not the assured lose one half of 
 the freight ? And, if this cannot be denied, why 
 should this loss of freight, which exists already in the 
 intermediate port, and which cannot be lessened by 
 any subsequent event, supposing the vessel finally to 
 arrive, be thrown upon the underwriter on the goods, 
 who has nothin"- to do with the freight ? And if the 
 deterioration of the goods would increase, if the 
 goods were reshipped, would not the loss upon the 
 freight increase in the same proportion ? — Unless, 
 therefore, the assured be entitled, either by law or 
 by an invariable and well-established practice, to 
 consider such an accident as a total loss pro tanto, I 
 conceive that the underwriter can be obliged only to 
 pay the ^^hole loss upon the goods, including all 
 charges, duty, &c, l)ut not the loss upon the freight. 
 This latter part of the loss must then be ascertained 
 in the manner just described, and deducted from the 
 claim. 
 
 To illustrate this by an example, let us suppose 
 two different articles (for instance indigo and rice)' 
 to be insured from the East Indies to an European 
 port, each valued at £1,000, and let the freight for 
 the former be £100 and for the latter £1,000. If 
 these goods must be sold at a place not far from the 
 place of departure, where such goods can be im- 
 ported at a very moderate freight, it is evident, for 
 this reason alone, that there must be a loss nearly 
 total upon the freight. Supposing the deterioration 
 upon each of these articles to be 50 per cent. The 
 expenses £100, the duty £100, and the gross pro- 
 ceeds of each £550, then the loss upon the first 
 article will be
 
 Adjustment of Particular Average on Goods. - 359 
 
 cost, £1,000 
 
 expenses, duty, and freight, 300 
 
 1,300 
 deduct proceeds of sale, 550 
 
 loss, £750, 
 and upon the second 
 
 cost, £1,000 
 
 expenses, duty, and freight, 1,200 (1) 
 
 2,200 
 deduct proceeds of sale, 550 
 
 £1,650: 
 
 Thus the loss upon the first article will be 75 per 
 cent, and on the latter 165 per cent^ and yet the 
 first cost, the deterioration and the premium were 
 upon each of these articles the same ! — But if the 
 loss upon the freight be deducted, i. e. £100 from 
 the first, and £1,000 from the second, the claim 
 upon the underwriters will be the same in both cases, 
 as it ought to be, viz. £650, or 65 per cent. 
 
 When goods are sold at a place short of their particular 
 
 average on 
 goods not 
 (1) It is assumed here, that the merchant is obuged to pay leaching 
 the whole freight, which, if not in all, at least in many cases, the port of 
 he will be bound to do. The French law docs not allow the their destina- 
 merchant to abandon for the freight goods which have fallen 
 in price, or which are diminished in value, either from inter- 
 nal decay or external accidents. Only in the case of leakage 
 of wines, oil, honey, and other liquids, where the casks are 
 empty, or nearly so, he may aband(Mi them for the freight. 
 {Code de commerce, art. 310.) Tiie law of England seems to 
 admit the same principle. See IloWs SJiippiiiff and Naviga- 
 tion Laws, II, p. 139. — The merchant cannot select part and 
 reject the rest. Yet I have seen a statement made in Amster- 
 dam, after the adoption of the French law, where part of a 
 quantity of rice, from the East Indies to Holland, was sold 
 damaged at the Mauritius, and produced less than the freight 
 on that part, and was abandoned for the freight. — 'But even 
 in that case the loss, if treated as a salvage loss, would be 
 total.
 
 360 Particular Average on Goods. — Benecke. 
 
 destination, en account of the voyage being lost, and 
 there is no abandonment, the underwriter has only 
 to pay the salvage, and other incidental charges, but 
 he has nothing to do either with the loss or the profit 
 upon the undamaged goods. (1) Consequently, if 
 such goods are sea-damaged, and this circumstance 
 be not a ground of abandonment, the particular av- 
 erage must be adjusted in the same manner as if the 
 goods had reached the port of their destmation.(a) 
 
 (1) In Hamburgh the accident would, according to the rules 
 of most of the Insurance Companies, be treated as a salvage loss 
 in either case. 
 
 («) In the case of Johnson v. Shedden, 2 East, 581, cited 
 by both Mr Stevens and Mr Benecke, it was held that under- 
 writers are not liable for a loss arising on account of duties 
 and other charges accruing after the arrival of the goods. 
 The same doctrine was adopted in Hurry v. Roy. Exch. Ass. 
 Co. 3 Bos. &. P. 308. A similar decision was given in New 
 York at about the same time. Lawrence v. New York Ins. 
 Co. 3 Johns. Cas. 217. In this last case the question, as to 
 loss by paying iull freiirht on damaged goods, is also raised 
 and particularly considered. The opinion of the court is 
 clear in all these cases, that the underwriters are not liable 
 for the losses in question ; the mode of computation, there- 
 fore, by which the underwriters are exonerated from all risk 
 as to freight, duties, and charges, is the correct one no doubt. 
 The reasons given by both Mr Stevens and Mr Benecke, in 
 favour of a computation of the average on the gross sales seem 
 to be conclusive. Suppose for instance that the purchaser of 
 the damaged goods agrees, over and above the price paid by 
 him to the owner, also to pay freight, duties, or any other 
 charges, these are just as much a part of the value of the 
 damaged goods, as if the same amounts were included in the 
 price as sucli. Suppose for instance that one tenth part 
 in value of the goods is destroyed, though they remain in 
 bulk, and tliat they are subject to the same expense of freight, 
 duty, wharfage, drayage, storage, &c, as if they were sound. 
 The particular damage is to be adjusted in such case as if 
 the goods were free from all these charges, in which case the 
 loss would amount to ten per cent. Now it is indifferent to 
 the purchaser of the damaged goods, whether the amount he 
 pays for them is paid under the denomination of freight, duty, 
 or charges, provided he pays in the whole only ninety per 
 cent of what sound goods would cost him. To adjust the
 
 Adjustment of Particular Average on Goods. 361 
 
 It is evident that the underwriter upon freight to Remarks on 
 be earned cannot be answerable to the ship-owner ^h^ 'nsurance 
 
 ■T 01 freight pay- 
 
 able at the 
 loss then so that the underwriter shall not be affected by the port of desti- 
 duties, freight, and charges, all these charges that are paid by 
 the vendee of the damaged goods, must be included as a part 
 of their value, in computing the value of the sound and dam- 
 aged. An example will make this clear. Say that the freight 
 or duty on the damaged goods is equal to fifty per cent of the 
 value of sound, and that the goods are damaged so that they 
 are worth but half as much as sound. If the vendee in such 
 case agrees to pay freight and duties he will give nothing 
 more for the goods. If the loss is adjusted on the net pro- 
 ceeds it will be a total loss, and yet the goods are worth half 
 as much as sound. This shows that all tlie freight, duties, and 
 charges to be paid by the purchaser, and contemplated at the 
 time of the sale as a charge upon the goods, are a part of 
 their value, and must be taken into consideration in adjusting 
 the loss. 
 
 The practice as to the adjustment of particular average on Partialloss on 
 profits and commissions, is, as yet, but imperfectly settled, profits and 
 In a policy upon these interests, it is often agreed to adjust commissions. 
 the loss as on the goods. In case of damage to the goods, 
 or the loss of a part of them whereby the proceeds are dimin- 
 ished, the loss on the profits or commissions will correspond 
 to that on the goods, and ought evidently to be so adjusted, 
 whether the policy contain any provision on the subject or 
 not. But a loss by contribution to general average, or by 
 expenditures for the preservation of the goods will not in all 
 cases be a loss on the profits. Such losses should be a ])articu- 
 lar average on the profits insured by the proprietor of the 
 goods, and so adjusting the loss will indemnify the owner ac- 
 cording to the value at the port of destination. Loomis v. 
 Shaw, 2 Johns. Cas. 30. Under the policy on the goods at 
 the invoice value, the proprietor is indemnified upon the basis 
 of the invoice value. By this mode of adjusting the loss on a 
 policy on profits, the proprietor will also be indemnified for 
 any loss of profits occasioned by the perils insured against, 
 upon principles analogous to those of the indemnity afforded 
 by a policy on the goods. But the indemnity will not be 
 complete in either case ; the loss, for instance, by payment of 
 full freight on damaged goods, will not be covered by either 
 policy; nor would the loss arising from the payment of full 
 duties on damaged goods, or a greater amount of duties in 
 proportion to their proceeds than are paid upon sound g(»ods. 
 The nearest approach to indemnity upon a policy on profits 
 by the proprietor seems to be an adjustment of a partial 
 
 46
 
 S62 Particular Average on Goods. — Stevens. 
 
 in those cases in which the merchant is obliged to 
 pay the freight for goods deteriorated or entirely 
 spoiled. The only way, therefore, to guard against 
 losses of this description will be, to insure the freight 
 payable at the port of destination, in the manner 
 which has been described in the first chapter. («) 
 — The underwriter upon such freight would, in the 
 case explained above, (p. 358,) be liable to pay a 
 total loss, and thus the merchant would be indem- 
 
 loss at the same rate on the profits as on the goods, provided 
 the profits in fact and according to the state of the markets, 
 would amount to the sum insured. But if the profits are 
 valued, the contract will give a rule under a policy made in 
 England without inquii'ing into the state of the markets any- 
 farther than merely to ascertain whether there would have 
 been some profit ; and it does not appear that this inquiry is to 
 be made in adjusting a loss under a policy underwritten in the 
 United States, where it has not been decided that a valuation 
 of profits is not valid without showing that in the actual state 
 of the markets there would have been a profit. 
 
 There is obviously a distinction between a policy on profits 
 by the proprietor of the goods, and one by a person having a 
 particular interest only, as a supercargo or consignee. If the 
 commissions of a supercargo are, for instance, computed on 
 the gross proceeds at the port of destination, any expenditure 
 or charge on the goods, though to be paid out of the proceeds 
 of the goods, may yet not diminish the commissions of the 
 supercargo. To adjust a particular average, therefore, upon 
 ^ such a policy, it is necessary to look at the contract and see 
 how the interest arises, and by what circumstances it may be 
 affected, and whether a damage or expense arising from a 
 peril insured against will diminish the profits or commissions 
 in proportion to the damage or expense ; and if this be the 
 case, the adjustment ought to give the same rate of loss on the 
 profits or commissions as on the goods. — Ed. 
 
 (a) This chapter is omitted in the present volume. In 
 the part here referred to the author proposes that the mer- 
 chant shall insure against the loss to which he is exposed in 
 consequence of being liable to pay full freight on damaged 
 goods. If for instance the goods are delivered at the port of 
 destination damaged fifty per cent, and the shipper has to pay 
 the same freight as he would be liable for in order to place in 
 the same market double the value in sound goods, by the pre- 
 sent piode of insuring he is not protected against this loss. — Ed.
 
 Mjustment of Particular Average on Goods. 363 
 
 nified without injury to the underwriter upon goods. 
 He would also be liable to pay the loss of freight in 
 the case of the voyage being lost, when there is no 
 abandonment of the goods, and this would in many 
 instances do away with the necessity of abandoning 
 the goods. Thus the underwriter upon freight pay- 
 able at the port of delivery, would be subject to total 
 as well as partial losses ; but as he would have 
 nothing to pay when the goods are abandoned to the 
 underwriter upon goods, and as the sale of damaged 
 goods in an intermediate port does not often occur, it 
 is clear that the risk upon such freight is considerably 
 less than that upon the goods, and that consequently 
 the premium must be lower. 
 
 When goods, in consequence of the ship being; dis- increase of 
 
 ui J u -1 f .1 • .- r ^ 1 *• freight for 
 
 abled by a peril or the navigation irom completing goods tran- 
 her voyage, are transhipped and forwarded to the shipped. 
 place of their destination, the increase of freight 
 thereby incurred must be borne, generally speaking, 
 by those for whose benefit the goods were sent on to 
 their destination. Some foreign Ordinances ex- 
 pressly enact, that the underwriter upon the goods 
 shall be liable for such increase of freight ; others 
 leave this point undecided. (1) But when the mas- 
 ter in such cases is entitled to freight pro rata itineris, 
 and the loss, had the goods not been forwarded, 
 would have been treated as a salvage loss : it is 
 clear that the forwarding the goods is for the benefit 
 of the underwriters upon the goods, and that they 
 must bear the charges. On the contrary, if, in the 
 case of the goods being sold at the intermediate 
 place, the loss would have been only an average loss, 
 so that the underwriter upon the goods had nothing 
 to do with the loss on the freight, then the goods 
 
 (1) Code de commerce, art. 393 ; Ord. of Amst. art. 26; of 
 Sweden, art. 6, § 11. In Hamburgh the same principle is 
 followed.
 
 364 Particular Average on Goods. — Benecke. 
 
 were forwarded for the benefit of the proprietor of 
 the goods, and the expenses must be borne either by 
 him or by the underwriter upon the freight payable 
 at the place of delivery. — In this country, w hen 
 the transhipment is made by the master, for the pur- 
 pose of earning the freight, under circumstances 
 which otherwise would not have entitled him to any 
 freight, the increase of freight, I conceive, would be 
 considered as salvage upon the freight earned, and 
 made good as such by the underwriter upon that 
 freight.
 
 CHAPTER X. — Adjustment of Particular 
 
 Average, or Partial Loss on Ships. 
 
 [Stevens, cli. 3.] 
 
 Entitled ' Of Particular Average, or Partial Loss 
 on Ships. ^ 
 
 What in itself constitutes a partial loss, it has 
 been observed,"" is not a matter of any doubt, but * Miliar, 389. 
 in what cases the insurer shall be liable to it, is 
 not precisely determined. The line between a loss R'r^"nos^ & 
 occasioned by the wear and tear of the voyage, wear and tear. 
 which falls on the owner, and the damage done to 
 the ship by extraordinary accident, for which the 
 insurer is liable, is not distinctly drawn either by the 
 law,'' or the practice of insurance. We are obliged b Marshal, 
 therefore from experience to form our judgment on ^^'^^ 
 this subject. 
 
 The French writers'" admit claims for partial loss " Vaiin, Com. 
 which we should in part reject, and consider as the i^xiv, art" 
 wear and tear of the voyage. They say, that if by ^^ d%^on7d' 
 some extraordinary accidents, — as the violence of Ass.c.i, §3.n. 
 the winds or waves, — it become necessary to slip a fgon,^'"xii, § 
 cable, or a cable be broke, and an anchor lost, or a 9, art. 3. 
 sail or yard be carried away, it forms a claim for a 
 partial loss. 
 
 The ancient as well as modern authorities agree, 
 when treating of general average, and this will 
 equally well apply to a partial loss, — that if a mast 
 be sprung, or a sail be split, or a cable be chafed by the 
 rocks, or the stock or fluke of an anchor be broken 
 off, — such is considered as the wear and tear of the 
 voyage, (or as the things used in the prosecution
 
 366 Of Particular Average on Ships. — Stevens. 
 
 of it,) and however great in some cases the hard- 
 ship may appear, the owner alone must bear the 
 
 ^ Y°L?]°'^- loss.'' 
 
 oier! art. ft. This is illustrated by the following simile : — a 
 
 ^rt° iT"* Va- ^'^^P ^^ 1^^® ^ ^^^1 ^^ t'^^ hands of a workman in 
 lin, Poth. his trade ; — if in doing his w ork he break his ham- 
 Wemvood^i^t i^6^"5 ^is anvil, or any other instrument, he can claim 
 17. Abbott, no satisfaction from his employer. And the reason 
 
 p. Ill, c. 8, §7. . 1 . ,, 11- 1 • 
 
 IS obvious, — all appurtenances belonging to a ship 
 ought to be made of the best materials, and strong 
 enough to hold good and resist any force of ordina- 
 ry gales of winds and heavy seas in the course of 
 the voyage. Magens says, ' w ere insurers obliged 
 to pay for every rope that breaks, or every sail that 
 splits, or mast or yard that is sprung, they and not 
 the owner would keep the ship in repair, and there 
 would at length be no other way of insuring ships 
 e 1 Magens, but free of particular average. '•" Every cutting, it 
 f\ide supra ^^'^^ becii sliowu,' docs uot make a claim for gen- 
 c. iy, § 1, art. eral average ; nor does every loss of masts and sails 
 ■ "^'^ ■' ^ ■ at sea constitute a claim for a partial loss. 
 
 I proceed now to state those cases which are gen- 
 erally considered as coming under the head of par- 
 tial LOSS. 
 
 stranding. [j.] ThE DAMAGE DONE TO A SHIP ivheil FORC- 
 
 ED ON SHORE by the wind and sea ; or by any for- 
 tuitous accident. 
 
 This requires no comment. But it may be re- 
 marked that if it be determined that the damage 
 done to a ship by jmrposely running her on shore, 
 e Vide supra, as uoticcd uudcr a former head,^ is not a case of 
 2. [I'] ' ^ *^ general average, then that must also come under 
 this head. («) 
 
 (a) In regard to damage by stranding, there is no question 
 as to the accident being extraordinary, and so a subject of in- 
 demnity, as far as its effects are extraordinary. Thus in case
 
 Adjustment of Particular Average, ^c, on Ships. 367 
 
 [ii.] The damage occasioned on being run foul Collision. 
 OF by other vessels, or by unavoidably running foul 
 OF another ship. 
 
 There are long articles in the foreign authors'" ^ Leg. Rhod. 
 on this subject which it would be useless to quote LJ; oL. art. 
 at length ; they being however some authority for i^" Leg. 
 
 1 1 • • 1 vv isD. 3,rt. i^o. 
 
 us, we ought not to pass them over in silence. — Vaiin, Com. 
 Roccus says, ' If damage be done to a ship or ^oods f."/ ?{^- Y"^- , 
 by the act or lault or a third person, the assured ii. Bynk. 
 may proceed at law against him for the damage, Jri^^L^^iv c. 
 which was occasioned by his fault. But if he will ^^^ -^c. 
 not proceed against him, — who is bound to do so ? Assec!^ Not. 
 Certainly, the insurer : he being liable to such dam- ^^"'^^ "^^^' 
 age. Should the assured however proceed against cites Santema 
 
 de Assec. p. 
 
 iv, n. 20, 21. 
 of stranding in regard to the damage by straining and weak- Pothier, Tr. 
 ening of the vessel, without any fracture, it was said by Mr '^' ^ss. c. 1. § 
 Justice Baldwin in Connecticut, ' invisible, uncertain, and r'r{^^^' ' "°' 
 conjectural damages are never the subject of remuneration. 
 I apprehend the injury is not the subject of adjustment, unless 
 it be capable of repair in the ordinary course of business.' 
 Sage v. Middletown Ins. Co. 1 Connect. R. 239. 
 
 The loss by stranding is often both general and particular 
 average, the general average consisting of the expenses incur- 
 red for saving ship, cargo and freight in common, the particu- 
 lar average in the distinct damage and loss on each interest. 
 Thus, in case of a discharge of a part of the cargo for the 
 purpose of lightening and floating the ship, and prosecuting 
 the voyage, these expenses are general average, though the 
 damage to the ship and cargo by stranding, (the case being 
 that of an involuntary stranding) is particular average. So, 
 though the voyage is given up, yet some expenses are most 
 usually incurred indiscriminately for saving tiie ship and car- 
 go, which are general average. Experienced dcspacheurs 
 state the rule on this subject to be that the expenses arc gen- 
 eral average, as ' long as the cargo remains on board,' or ' If 
 the stranded ship be got oft', m ithout being a constructive or 
 technical total loss, [in Baltimore] we deem the expenses of 
 getting her oft' to be general average. Otherwise we hold to 
 the French maxim, that each one is to save his own ; or 
 again in Boston, ' The expense of getting off" a stranded ves- 
 sel with the whole or a part of the cargo on board, is in prac- 
 tice held to be general average.' — Ed.
 
 i Roccus de 
 Assec. ut su 
 
 368 Of Particular Average on Ships. — Stevens. 
 
 such third person he would not prejudice his inter- 
 est with the insurer, so far as to disable him from 
 having recourse to the latter, in case the person 
 who committed the injury should be found insol- 
 vent ; because the assured having paid the price of 
 the risk to the insurer, he is answerable not only 
 i7i subsidiufii, hut principaliter.''' 
 pra. Pothier, vmder the head ' Abordage,^ says, ' the 
 
 insurer is bound to indemnify the assured where the 
 loss happens by a fortuitous event, — as a tempest, 
 or even where it has happened through the fault 
 of the master of the other vessel ; — in which case 
 the assured gives up his right of action to the in- 
 
 k Pothier, Tr. surer. "^ 
 
 d' Assur. ut r>'/^i r i i • • i r 
 
 sup. -Dut II the master or the ship insured, irom neg- 
 
 ligence run foul of another ship, and thereby dam- 
 age his own, such damage ought not to constitute 
 a claim for a partial loss, — ' the insurer being con- 
 sidered,' as is observed by Valin, ' only accountable 
 
 1 Vaiin, Com, foi- the unforesecH accidents of the voyage:" and 
 
 12 14 74 79 . . . v' to ' 
 
 ' an accident is not that which happens through the 
 
 act or fault of the proprietor, or his agent or servants. 
 
 Mr Serjeant Marshall, in his very useful work, says, 
 
 ' the mistakes, ignorance, and inattention of the 
 
 master or mariners are not perils of the sea. But 
 
 if the damage happen from bad intention and the 
 
 wilful misconduct of the master, &c, — this it is 
 
 493^?^Term ^hought would aiiiount to barratry. '"" According to 
 
 Rep. 656. the French writers," barratry includes the negligence 
 
 suT oJd.^rt' °^ ^^^ master and crew. But with us there must 
 
 27,23. be a fiaudulent intention, wherebv the owner is in- 
 
 d' Ass. c. i, § jured, to constitute barratry. Therefore it appears, 
 
 3, no. 65. if a loss happens from the neglio'ence or unskilful- 
 
 li,mer. torn, i, r i i i 
 
 371. ness oi the master or the crew, there can be no 
 
 Le Guidon, (^i^im for partial loss. 
 
 c. It), art. 4. _, ^ 
 
 rrom all that has been written and said on the 
 subject of collision, it may be inferred, that where 
 there is no proof of neglig^ence in the master or crew
 
 Adjustment of Particular Average^ ^c, on Ships. 369 
 
 of the damaged ship (and negligence, like fraud, 
 cannot be assumed,) the insurer is liable for the 
 damage, and he cannot oblige the owner to sue the 
 other party. But if he indemnify the owner he be- 
 comes vested in his rights, and he may sue the party 
 who was wilfully the cause of the damage." («) "oRobAdm. 
 
 Rep. 345. 
 [ill.] The DAMAGE d07ie to a ship^S UPPERWORKS ; Damage to 
 
 to the BOATS, ^c, hy the force of the wind and sea. "Koat?^ 
 
 Some well-informed persons in Lloyd's hold, that 
 this is in general the wear and tear of the voyage ; 
 but the custom is to consider it as a partial loss on 
 the ship for which the underwriters are liable. 
 
 [iv.] Boats ivashed overboard. Boats washed 
 
 It seldom happens that boats, if properly lashed "^"^^ 
 to the quarters, or to the ringbolts on the deck, are 
 forced away by the violence of the sea. This may 
 however occur in storms or hurricanes. If a boat, 
 when hung to davits over the ship's stern, be carried 
 away by the sea, it is not customary to make the 
 loss a claim on the insurers ; (1) that being consider- 
 ed an insecure place for the boat.'' Some Avriters p vide supra, 
 have gone so far as to hold, on the authority of the ^'^• 
 laws of Rhodes, that the boat is not part of the ship 
 nor of its apparel.'' It is not necessary for us to i Dig. 21. 2. 
 enter into this discussion, because it is now well Ji^,-^.^;,^- ]; oq. 
 understood that the boat is as much a part of the stracca', p. 2. 
 ship (when put in a secure place,) as far as regards ""^ 
 the insurers, as the masts and the sails — if indeed 
 nothing but what was attached to the ship were 
 
 (a) On the subject of collision. See Story's Al)l)Ott, Ed. 
 1829, pp. 99. 132. 161. 353. 363. and notes, and 1 Pliil. In.s. 
 249, 250.— Ei). 
 
 (1) For some just observations on the boat being outside of 
 the ship, see Q. van Weytsen, TV. des Av. p. 11. 
 
 47
 
 370 
 
 Of Particular Average on Ships. — Stevens. 
 
 Fire or light- 
 ning. 
 
 "" Pothier, C. 
 d' Ass. c. 1, 
 § 2, art. 2, n. 
 53. Emer. 
 c. xii, § 41, 
 n. 13. 
 
 Loss while 
 scudding or 
 lying to. 
 
 allowed to belong to it, then the cables and anchors 
 might as well as the boats be excluded. («) 
 
 [v.] Losses happeni^ig from lightning ; or from 
 the ship being accidentally set on fre. 
 
 The insurers are bound to pay a loss of this nature 
 in consequence of a fortuitous event ; but the French 
 writers say, that if it happen from the negligence or 
 fault of the master and crew they are not bound, — 
 unless there be a clause in the policy to that effect.' 
 
 [vi.] Losses incurred ivhile a Ship is scudding 
 before the ivind, or lohile she is lying-to the sea. 
 
 Such losses are said to come under the head of 
 partial loss, because at such times the master and 
 seamen have no command over the ship. And for 
 the same reason, if in a heavy cross-rolling sea, the 
 vessel pitch, or roll away her masts ; such loss may, 
 it is said, be attributed to unforeseen, and unavoida- 
 ble accident ; — if it do not arise from insufficiency, 
 or from proper care not having been taken to guard 
 against the effects of the sea. (6) 
 
 (a) The opinions of underwriters, and the practice, as to 
 paying for boats carried on the sides or at the stern davits, 
 are somewhat various. The practice in Bahimore is under- 
 stood to be not to pay for boats so carried. The practice in 
 PliiJadelphia is to pay for them. In Boston there is a diver- 
 sity of practice and opinion ; some underwriters pay for a boat 
 washed from the sides or stern, if it is customary or evidently 
 expedient, in the particular voyage, so to carry it. See 1 
 Phil. Ins. 255. — Ed. 
 
 (6) I am not aware of any distinction being made in the 
 United States on the ground stated in the text. In lying to, 
 scudding before the wind, or any other circumstances, the 
 distinction between what damage is to be considered wear and 
 tear, and what is to be indemnified for, must be made by the 
 exercise of a sound discretion of the despacheur in the par- 
 ticular case, rather than by any specific rules. The question 
 is as to what shall be considered ordinary, and what extraor- 
 dinary, damage. The damage may be extraordinary in itself, 
 as the carying away of a mast, about which there is no
 
 Adjustment of Particular Average, ^c, on Ships. 371 
 
 [VII.] PLUNDER' or DAMAGE done tO a Ship and Plunder. 
 
 her Stores in consequence of capture. ' Q van 
 
 An instance seldom if ever occurs, where a ship is "kv^it^"' '^^^ 
 for any length of time in possession of the enemy, 
 that the sails and rigging escape damage, from the 
 neglect of the captor's crew. The re-captors also 
 often occasion as much damage as the crew of the 
 enemy. There can be no doubt I imagine that 
 these, as well as plunder, and the extra consumption 
 and waste of the ship's stores and provisions, are 
 partial losses for which the insurers are liable. (1) (a) 
 
 [VIII.] damage d07ie to a Ship by defending her Defence 
 against an enemy. against an 
 
 This subject has been already noticed under an- *^"^'"^' 
 other head,' where it was observed that if the ship t vide sup. c. 
 be an ' armed ship,' so called, i. e. carrying a letter '^> § i,art. 2. 
 oi marque — she is bound by a kind of implied war- 
 ranty, to defend herself. One of the great objects 
 indeed in arming, is to make quicker voyages — and 
 thereby more profit to the owners ; freights are also 
 more readily obtained — and the premium given on 
 goods is lower, in consequence of the idea of in- 
 
 doubt, or it may be more ordinary, as the .splittino^ and blowing 
 away of a sail, in respect to which latter, the right to claim 
 indemnity will depend more upon the circumstances and the 
 violence of the operation of the perils, than upon the nature 
 and degree of damage. For the result of the ordinary wear 
 and tear of sails is their being eventually split and destroy- 
 ed.— Ed. 
 
 (1) In the former part of this essay it has been shown," that " lit. sup. 
 the provisions are not connected with the freight, which some c. vi, §2 
 persons have assumed ; but being the ship's stores, are part of 
 her outfit, and therefore insurable as sucii.^ " Marshall, 
 
 (a) Upon the same principle underwriters are liable for C23. 
 plunder of property shipwrecked, though it happens on shore, 
 and the policy is only against marine risks, for this plunder 
 is a direct consequence of tlie operation of the jjcrils insured 
 against. Bondrett v. Hentigg, 1 Holt, 149. — En.
 
 372 Of Particular Average on Ships. — Stevens. 
 
 creased safety; — therefore the damage done to the 
 ship should be considered as the wear and tear of 
 the voyage. If an ordinary merchantman however, 
 be attacked by an enemy and defend herself, and 
 thereby escape captm-e, the damage done appears to 
 me to come under the head of a peril arising from 
 the enemy, and in consequence that it is a partial 
 loss for which the insurers are liable. But there are 
 men of information in Lloyd's who are of a different 
 opinion, and who on the principle that whatever is 
 ultimately for the general benefit ought to be made 
 good by a general contribution, consider this to be a 
 subject of general average. If the ship should not 
 escape capture, but be afterwards re-captured, still I 
 imagine the damage done should be recoverable as a 
 partial loss, — if it were only as an encouragement 
 to owners of ships to order their masters to defend 
 the vessels entrusted to their care. 
 
 [ix.] »SV///5 sjjlit and Masts sprung by carrying 
 A PRESS OF SAIL to escapc capture, or ivhen on a 
 lee-shore. 
 
 According to the erroneous ideas of many persons, 
 
 and particularly foreigners, it is thought that the 
 
 damage arising from carrying a press of sail to avoid 
 
 a lee-shore should be made good by a general coii- 
 
 w Vide sup tributiou." If however the case were of that ex- 
 
 c. IV. § 1, art. . .,, , , . Ill 
 
 1. [v.] traordmary nature to justily any claim, it would be 
 
 for a partial loss ; — because an act of necessity, as 
 before argued on the subject of running a ship 
 ' Vide sup. ashore,'' cannot be considered a voluntary sacrifice 
 [a.] ' ' for the general safety. Agreeably to this it has 
 been held, that the damage a ship receives in her 
 rigging from carrying an extra press of sail to escape 
 capture by a privateer, is a partial loss on the 
 
 y 2 New Rep. ship.'' (a) 
 
 37S. r V / 
 
 (o) There is usually more difficulty in distinguishing wear
 
 Adjustment of Particular Average, ^c, 07i Ships. SIS 
 
 Having thus stated what is particular average — Burthen of 
 it may perhaps be useful to state what is not. It is proof is on the 
 
 ussorccl 
 
 not customary to consider the repairs of the ship, in 
 consequence of springing a leak at sea, as a claim 
 for which the underwriters are liable ; — for in all 
 cases of particular average the o?ms is thrown on 
 the assured — (the owner of the ship). — It is not 
 for the insurer to account for the cause of the acci- 
 dent. The assured must show that the damage for 
 which he has a claim is the direct effect of a fortu- 
 itous accident. In the absence of such proof the 
 springing a leak is to be attributed either to the 
 working and straining of the vessel — which is the 
 wear and tear of the voyage ; — or to some insuf- 
 ficiency or inherent defect ; — for neither of which 
 are the underwriters liable. But where the ev- 
 idence derived from the log-book, and confirmed by 
 the mariners, is sufficiently clear to show that the 
 leak was occasioned by a stroke of the sea," for in- 
 stance, — when a ship has been suddenly thrown on 
 her beam-ends, and immediately on her righting it 
 is discovered that she has sprung a leak, — there is 
 no doubt that this comes under the head of a partial 
 loss for which the underwriters are liable. 
 
 and tear, from damage that is y)articular average, in regard to 
 the loss of sails than in any other species of loss. The case 
 of damage in escaping from an enemy, or keeping oft' a lee 
 shore, is not distinguished from other cases of damage as to 
 being the ground of claim for indemnity. The question still re- 
 curs here as in other cases, whether the peril and its opera- 
 tion and effects are extraordinary. In regard to loss of sails the 
 practice as stated by different experienced des|)acheurs, is as 
 follows. 'If blown from the bolt rope, and the gale so vio- 
 lent as to cause considerable damage otherwise, the claim 
 would be admitted in Philadelphia ;' and the rule stated in 
 respect to Baltimore is, that, ' Sails split are not paid for un- 
 less damaged in a gale notoriously violent, and coming on so 
 suddenly that the sails could not be furled.' — Ed.
 
 374 
 
 Particular Average on Ships. — Stevens. 
 
 Imperfect 
 nature of the 
 evidence. 
 
 ^ 1 Magens, 
 
 87. 
 
 Damage by 
 rats and 
 
 a 1 Esp. Rep. 
 444. 4 Camp. 
 Rep. 203. 
 Deduction of 
 one third for 
 
 One of the difficulties in distinguishing between 
 the wear and tear of the voyage, and those losses 
 which entitle the owner to make a claim on the un- 
 derwriter, arises from the unsatisfactory nature of 
 the evidence obtainable on these occasions ; which 
 evidence generally consists of merely a protest and a 
 survey : the former drawn up by a person, from the 
 nature of his profession unacquainted with naviga- 
 tion and practical seamanship, and therefore liable 
 to make erroneous details ; and the latter applying 
 only to particular cases of actual perceivable damage 
 done to the ship's hull or her masts. From this it 
 may be gathered, that the correctness of such claims 
 must in a great measure depend on the skill and 
 judgment of the person who undertakes the adjust- 
 ment ; and that no rules can be given which would 
 hold good in all cases, or be generally useful. The 
 log-book is always of much more use in matters of 
 this kind than any protest ; — in confirmation of this, 
 Magens remarks that (even in his time) protests 
 were become almost a mere matter of form."" 
 
 As the underwriters are not liable for the W'ear 
 and tear of the voyage, neither are they liable for 
 damage or loss occasioned by rats or worms eating 
 holes in the ship's side or bottom.'' 
 
 In the adjustment of a claim for a partial loss, and 
 also for a general average, (where any of the ship's 
 materials are sacrificed,) it is customary to deduct 
 one third from the new materials and labour (1) — 
 
 Rule in (1) The custom of France, and particularly of Bordeaux, 
 
 France as to in regard to West India Shipping, is as follows: — to allow 
 wear and tear. 4Q jj^Qj-il^l^g ggj-yice for wood-sheathing, and 60 months for 
 copper-sheathing. For the Jirst voyage to consider the cord- 
 age, sails, &c, as worn one third — the second voyage two 
 thirds — and for the third voyage, three fourths. 
 Particular ^"^ of o"i" Insurance Associations, which is conducted by 
 
 rule as to cop- very experienced and intelligent ship-owners, has the follow- 
 per sheathing, ing rules in regard to copper-sheathing: — During the first 
 year, no deduction is made, — during the second year one
 
 Adjustment of Particular Average, ^c, on Ships. 376 
 
 and unless a ship be perfectly new, i. e. on her first 
 voyage, or the materials sacrificed be perfectly new, 
 this deduction is invariably made. The owner will 
 sometimes complain of the hardship of the case where 
 a cable has been only once or twice wetted — and 
 sails have been only once or twice bent previous to 
 the time of the accident ; — but he should recollect 
 that though one third is deducted in cases where 
 materials are worn only perhaps one tweiitieth, yet 
 there is no more than one third deducted where 
 they are worn nineteen ttventieths. Thus the rule 
 by acting invariably is found to be equitable in its 
 operation. (1) («) 
 
 fifth is deducted, and so on deducting one fifth more for every 
 succeeding year till the completion of the five years — after 
 which period the Association does not make good any part 
 of the copper. Thus allowing, as at Bordeaux, 60 months' 
 service. 
 
 The custom of Lisbon appears to be more reasonable than 
 ours, — there one third is not deducted from merely repairs, 
 but only from amelioration. 
 
 At St Petersburgli, painting the new work comes under the Painting. 
 denomination of ornament, and is not charged in the average ; 
 but with us the painting is allowed, when the damage happens 
 on the outward voyage, and the ship had been newly painted 
 before she sailed. 
 
 (1) With respect to a partial loss on the ship when she puts 
 into an intermediate port to repair her damages, and is after- 
 wards lost, — Magens says,'^ that where the insurance is b 1 Mag. 159. 
 charged in the claim, the (original) insurer is to pay the value 
 of the ship, less the particular average, (which he paid before,) 
 but where no insurance is charged, tlic insurer is to pay the 
 full value of the ship, in addition to what he paid before for 
 particular average. 
 
 (a) It has been held in some cases, that this deduction of a 
 third for new, is not made unless the ship comes into tlie 
 hands of the assured so that he has the benefit of the rcj)airs. . 
 [Da Costa v. Newnham, 2 T. R. 407.] But if it is througli the 
 fault of the assured that he does not regain possession of the 
 ship, then the deduction will be made in favour of tlie under- 
 writers. Thus when the ship was bottomried, and the owner 
 neglected to discharge the bottomry bond, Mr .Tusticc Story 
 said, ' The loss has been voluntary on the part of the owner by
 
 376 
 
 Of Particular Average on Ships. — Stevens. 
 
 First voyage. 
 
 Anchor. 
 
 Proceeds of 
 old. 
 
 his own default. The underwriters are therefore entitled to 
 the deduction of a third for new.' [Humphrey v. Union Ins. 
 Co., 3 Mason, 429.] 
 
 Under the exception of the first voyage as to this deduc- 
 tion, it was held by the King's Bench in England, that in case 
 of a voyage from Bristol in England, to New York and back 
 to Bristol, the ship was to be considered to be on her first 
 voyage on her return to England, as well as on her outward 
 passage. [Fenwick v. Robinson, 3 Car. & P. 323. S. C. 14 
 Sarg. & Lowb. 328.] 
 
 In the United States a deduction of a third for new is most 
 generally made in the expense of repairs though the vessel is 
 on her first voyage. [Nickels v. Maine F. & M. Ins. Co., 11 
 Mass. R. 253 ; Dunham v. Com. Ins. Co., 11 Johns. 315.] In 
 Baltimore an exception is said to be made in respect to the 
 first voyage. 
 
 The only kind of article from which an exception of the 
 deduction of a third for new is made, is the anchor. The 
 deduction is not made on iron work, copper, sheathing, or 
 chain-cables. 
 
 The proceeds of the old materials saved are deducted from 
 the expense of repairs, the underwriters being liable only on 
 account of the excess. A question has arisen in the United 
 States whether the third for new is to be first deducted from 
 the gross repairs, and then the proceeds of the old materials 
 from the remainder, or the proceeds of the old materials from 
 the gross repairs, and the third for new from the remainder. 
 In some cases, especially in respect to copper sheathing, it 
 will make considerable difference which of these methods of 
 adjustment is adopted. The more general practice has been 
 to deduct a third from the gross expense ; but in New York it 
 has been decided that the deduction should be made from the 
 net expense after deducting the old materials. [Byrnes v. 
 National Ins. Co., 1 Cowen, 265.] A similar decision has 
 been made in Massachusetts, Brooks v. Oriental Ins. Co., 7 
 Pick. 259. See discussions of this subject in the American 
 Jurist, vol. 5, p. 252. 263. vol. 6, p. 45. 
 
 The question has been again brought before the Supreme 
 Court of Massachusetts in the case of Eager v. Atlas Ins. Co., 
 Suffolk, March Term, 1833, in which the court adhered to 
 their former opinion that the proceeds of the old materials are 
 to be first deducted from the gross expenses of repairs, and 
 the third for new from the remainder. This may, therefore, 
 be considered to be the established law in New York and 
 Massachusetts. In Philadelphia and Baltimore the practice 
 at present, [1833,] is to deduct the third for new from the gross 
 expense of repairs. — Ed.
 
 CHAPTER XI. — Adjustment of Particular 
 Average on the Ship. 
 
 [Benecke, Part of ch. 9.] 
 
 The adjustment of partial losses, or particular Particular 
 average on ships, presents difficulties of a different ghfp^^what 
 nature from those which we have hitherto consider- damao^e is 
 ed, with respect to the liability of the underwriter, such!'^^'^^*^ ^^ 
 as well as with respect to the amount of the claim. 
 
 The liahility of the underwriter is subject to no 
 peculiar difficulties when the cause of the loss is 
 sufficiently known. Thus, when a ship is damaged 
 or plundered of her stores by pirates, or captors ; 
 when by their or by the recaptors' misconduct or 
 negligence any part of the vessel is destroyed or 
 damaged, or the stores and provisions, which form a 
 part of the outfit, and are as such included in the 
 insurance of the vessel, are consumed or wasted, 
 there can be no doubt that the underwriter, being 
 liable for piracy and capture, must make good those 
 losses. — Again, when by lightening, or by an acci- 
 dental fire, part of the ship or of her stores and 
 apparel is consumed or damaged, the underwriter is 
 liable for such partial loss, because this is a risk 
 within the policy. (1) — But when the loss is ascrib- 
 ed to the perils of the sea, in the stricter sense of 
 the expression, an accurate investigation into the 
 
 (1) Where a ship was wilfully set on fire to prevent her 
 falling into the hands of the enemy, this was considered a loss 
 within the j)olicy. Gordon v. Rimmin^ton, 1 Camph. 123. 
 And when a fire took place on hoard, owing to the neglect of 
 the mate, who, under particular circumstances, was left alone 
 in the ship, the underwriters were held liahle, the fire being 
 the proximate, and the neglect the remote cause of the loss. 
 Busk V. R. Exck. Ass. 2 Barnw. & Aid. 73. 
 48
 
 378 
 
 Particular Average on the Ship. — Benecke. 
 
 Loss by neg- 
 ligence. 
 
 Previous 
 damage. 
 
 circumstances of the case is often required, to distin- 
 guish the damage for which the underwriter is liable 
 from that which is the effect of the insufficienc}' of 
 the vessel, and from the wear and tear, which must 
 be borne by the owner. 
 
 The loss, moreover, in order to constitute a claim 
 against the underwriter, must not have originated in 
 the mistake, ignorance, or inattention of the master 
 or mariners, for these are not perils of the sea. And 
 it cannot be considered a hardship upon the owner, 
 that losses occasioned by the fault of the master, 
 whom he himself has appointed, should fall upon 
 him ; although this is often a great hardship upon 
 the proprietor of the goods, who has no control over 
 the master. (1) — Negligence and mistake, however, 
 cannot be assumed, Ijut must be proved, to exonerate 
 the underwriter. — Losses originating in a wilful 
 misconduct of" the master and crew belong to barra- 
 try, for which the underwriter is responsible. 
 
 When the cause of the loss is such as to make 
 the underwriter liable for it, another difficulty is, to 
 distinguish the recent damage from former latent 
 defects, and to determine under all circumstances 
 the amount which must be considered a fair indem- 
 nity. («) 
 
 (1) Most of the foreign Ordinances make the underwriter 
 responsible for the faults of tlie master and the crew. In 
 France the underwriter is not liable, unless he expressly en- 
 gage against barratry, which term in that country includes 
 mistakes, &.c, as well as fraud of the master, «fcc. 
 
 {a) It is difficult in many cases to distinguish wear and tear 
 from losses that are subjects of indemnity. But the ship beins: 
 admitted to be seaworthy, and damage having taken place, 
 which gives a claim to indemnity, the j)revious condition of 
 the thing damaged as to its being more or less sound and per- 
 fect, is not very particularly inquired into, since the allow- 
 ance of the deduction of one third for new, supposes the arti- 
 cle to have been more or less deteriorated. In a case that 
 occurred in New York, the assured having proved the damage 
 and expense of repairs, the underwriters offered to show that
 
 Adjustment of Particular Average on the Ship. 379 
 
 ft is admitted on all hands that every vessel going 
 out to sea must be well provided with all necessa- 
 ries, and sufficiently strong in all her parts to endure 
 the usual violence of winds and waves, and to over- 
 come such difficulties as, owing to the nature of the 
 voyage, she must be expected to encounter. Dam- 
 ages incurred without any extraordinary cause, cables 
 broken or chafed, sails and yards carried away in the 
 ordinary service of the ship, belong most undoubted- 
 ly to wear and tear. But it is impossible to deter- 
 mine in a satisfactory manner to what extent a ves- 
 sel must be able to endure the violence of winds and 
 waves, and thus to draw a line of distinction between 
 common and extraordinary occurrences : and even if 
 this could be done, still the difficulty would remain 
 of determining which part of the damage must be 
 ascribed to the external effect, and which to the in- 
 sufficiency of the vessel. Under these circumstan- 
 ces it is not to be wondered at, that the opinions of 
 individuals, and still more the practice of different 
 nations, should be at variance. 
 
 Valin'^ says, * When an anchor is lost by the cable * Tit. Ass. 
 being chafed upon a rocky ground, such damage can- 
 not be called a peril of the sea, but it is the natural 
 consequence of the service of the cable. And as the 
 underwriters are not liable for the diminution in the 
 value of the ship and tackle occasioned by their wear, 
 neither are they liable for cables worn or broken by 
 the mere effect of the current, or by the vessel's 
 pitching when she is at anchor. It would be differ- 
 
 a greater part of the repairs were matic on account of damage 
 and defects existing before the pohcy attached. Mr Chief 
 Justice Savage, giving the opinion of the court, said, ' Tiiat 
 the insurer is not at hherty to show that the vessel received a 
 part of the injury anterior to the voyage, lias not hcen dis- 
 puted since the decision of Dcpeyster v. Columhian Ins. Co., 
 2 Caines' R. 485, unless she was in fact unseaworthy. Dcpcau 
 V. Ocean Ins. Co., 5 Cowcn, 03. — Ed. 
 
 art. '-i'J.
 
 380 Particular Average on the Ship. — Benecke. 
 
 ent if, owing to the violence of the winds or waves, 
 it became necessary to slip a cable, or a cable were 
 broken ; or if by a squall of wind a sail or yard were 
 carried away, &c.' — Indeed I have seen instances, 
 in French statements, of articles being brought to 
 the charge of the underwriters which would not be 
 allowed in this country. 
 b I. § 51. Magens^ says, ' Every thing belonging to a ship 
 
 ought to be made of the best materials, and strong 
 enough to hold good, and resist any force of storms 
 which may frequently occur in the common course 
 of a voyage. Were insurers obliged to pay for every 
 cable and rope that breaks, and for every sail that 
 splits or blows to pieces, there would be no other 
 way of insuring ships, but free of all particular aver- 
 age.' — True as this latter proposition is, yet it must 
 be admitted on the other hand, that, were under- 
 writers not liable for such losses under any circum- 
 stances, the owner would frequently be deprived of 
 the indemnity to which, according to the tenor of 
 the policy, he is justly entitled, the consequence of 
 which would be, that sometimes, for want of exer- 
 tions, the burden of which the master would know 
 to fall upon the owner, a total loss might be incurred 
 which otherwise might have been avoided. — Nor 
 must the first proposition be extended beyond its just 
 limits. A vessel, although built of the best mate- 
 rials, will in process of time necessarily become less 
 perfect than she was when new. The underwriter, 
 therefore, knows that not every vessel, although 
 perfectly seaworthy, can be equal in strength to a 
 new one. He knows the risk upon an old ship to 
 be greater than upon a new one, and this greater 
 risk is counterbalanced ])y a higher premium. If 
 the old ship be entirely lost by an accident, which a 
 new ship might have sustained, still he must pay a 
 total loss, provided she was seaworthy. Therefore, 
 if the old ship receive mor<i damage than a new one
 
 Adjustment of Particular Average on the Ship. 381 
 
 under similar circumstances would have received, 
 the underwriter's obligations cannot be restricted to 
 the amount of the damage which probably would 
 have taken place, supposing the ship to have been 
 perfect in the strictest sense of the word. — But in 
 the repairs of an old ship, many articles will fre- 
 quently be comprised, the deterioration of which is 
 not the effect of the last accident, and these must 
 be carefully separated, as far as this is practicable. 
 
 Formerly in Hamburgh, no particular average on 
 ship was paid by the underwriters, unless the vessel 
 had struck the ground. This appears from a certifi- 
 cate of the Despacheur, which I found amongst the 
 documents relating to a case which was tried in 
 Hamburgh, in the year 1792, and I know several 
 cases of an earlier date, in which the damage sus- 
 tained by the vessel and her rigging, &c, in conse- 
 quence of storm, were not allowed by the court of 
 Admiralty. — At present, according to the stipula- 
 tions of most of the Hamburgh insurance companies, 
 the damage occasioned by the vessel's striking the 
 ground is allowed in full, (deducting the usual one 
 third) and when a ship receives greater damage, in 
 consequence of tempestuous weather, than what be- 
 longs to wear and tear, one half only is allowed. 
 
 No distinction of this kind is made in England. 
 When the loss is in fact incurred by a peril of the 
 sea, the underwriters are liable in the same degree, 
 whether the damage was occasioned by the ship's 
 striking the ground or otherwise ; and they are not 
 liable at all, when the loss is attributable to any 
 of those occurrences which the vessel must be pre- 
 pared to encounter in the usual course of the navi- 
 gation. 
 
 Amongst the losses which constitute a claim for Damapro i)y 
 particular average, the damage done to the ship by ''^^'^" '"= 
 stranding^ hij striking the ground, ^t, is less subject 
 to discussion than any other. It is particular aver-
 
 382 
 
 Particular Average on' the Ship. — Benecke. 
 
 <= See above, 
 p. 143. 
 
 Damage while 
 scudding or 
 lying to. 
 
 Masts. 
 Upper works 
 
 Boats. 
 
 Implements. 
 
 Sails. 
 
 Press of sail 
 to avoid lee- 
 shoro or 
 enemy. 
 
 Covington v. 
 Roberts, 
 2 New Rep. 
 378. 
 
 age, except in those rare cases when a voluntary 
 stranding may entitle the owner to a restitution in 
 general average." 
 
 It is nearly the same, as to losses incurred while a 
 ship is scudding before the ivind, or lohile she is lying 
 to ; because, under those circumstances, the master 
 and seamen have no command over the ship. Also, 
 when in a heavy cross-rolling sea the vessel pitches 
 or rolls away her masts, when stanchions or other 
 parts of the upper works are broken or damaged 
 (unless these losses arise from insufficiency or want 
 of care,) they form a claim against the underwriter. 
 — If boats, (1) properly lashed to the ring bolts, are 
 carried away by the violence of the sea ; if any of 
 the ship's implements, which at the time were ne- 
 cessarily upon the deck, are washed overboard ; if a 
 heavy sea, carrying every thing before it, burst a sail, 
 (which, although seldom, may sometimes occur) all 
 such damages are particular average. But if a boat 
 hung to the davits over the ship's stern, or if things 
 which ought to have been kept in the hold are washed 
 away, such loss is owing to negligence, and not to 
 unforeseen accidents. 
 
 Sails split, masts sprung, and a leak occasioned 
 by tlie vessel carrying a press of sail when on a lee 
 shore, or to escape capture, are, generally speaking, 
 not particular average ; because the dangers in which 
 these losses originate are occurrences which fre- 
 quently take place, and which the vessel ought to 
 be able to resist. Under extraordinary circum- 
 stances, however, such losses would belong to par- 
 ticular average. — Thus, where a vessel, to escape 
 from an enemy, had hoisted so much sail as in com- 
 mon cases would have been inexcusable, the dam- 
 
 (1) The boat i.s expressly named in the policy; and even 
 if it were not, boats undoubtedly belong to the apparel of the 
 .ship.
 
 Adjustment of Particular Average on the Ship. 383 
 
 age sustained in consequence was held a particular 
 average. 
 
 When a ship springs a leak at sea, this must be Working and 
 attributed either to the working and straining of the st'"^ii"g- 
 vessel (which belongs to the wear and tear of the 
 voyage) or to insufiiciency, or an inherent defect, un- 
 less it appear to have been occasioned by a stroke of 
 the sea, or by some other external cause/^ a stovens, 
 
 The damage occasioned on being run foul of by ^^m*™ ^'^^ 
 another vessel, or by unavoidably running foul of 
 another vessel, is considered particular average in 
 this country, as has already been observed in a 
 former chapter.'' The underwriters are liable, un- e Above, p. 
 less it be proved that the loss was attributable to ^^^' 
 the negligence of the master or crew of the ship iiv 
 sured. If the loss originated in the misconduct or 
 negligence of the master, &c, of the other vessel, it 
 appears that the underwriter cannot oblige the as- 
 sured to sue the other party. But, by indemnifying ^ .-, ^^\,\n. 
 the owner, he becomes vested in his rights, and ''on's Adm. 
 may sue the party who was the cause of the ac- 
 cident. '^ 
 
 The damage sustained by a ship in her defence Damage in an 
 against an enemy, not bemg general averagtj ni tins g Above, p. 
 country," it can admit of no doubt that it must be it^~ 
 particular average. Nor can I see a sufiicient reason 
 for distinguishing in this respect an ordinary mer- 
 chantman from an armed ship, or one which carries 
 letters of marque, and for considering in the latter 
 the damage so sustained as ^^ ear and tear of the 
 voyage.'' This damage, as well as capture, is a peril 
 of war, in consideration of which the underwriter 
 must be supposed to charge a higher premium. In 
 my opinion it would not only be inconsistent, but J^Soc page 
 also bad policy, to free the underwriter from a loss 
 sustained in endeavouring to prevent a total loss. — 
 As to the ammunition consumed upon such occa- 
 sions, it appears to me to belong to wear and tear,
 
 384 
 
 Particular Average on the Ship. — Benecke. 
 
 Cables and 
 anchors. 
 
 i Above, 
 p. 114. 
 Worms and 
 Rats. 
 
 Pohl V. Parr, 
 Park, 7th 
 ed. 105. 
 Hunter v. 
 Potts, 4 
 Campb. 203. 
 Proofs. 
 Evidence 
 concerning 
 the loss, &c. 
 
 Deduction of 
 one third for 
 the supposed 
 difference be- 
 tween the val- 
 ue of tiie arti- 
 cles lost and 
 of those by 
 which they 
 are replaced. 
 
 because it is spent for the purpose for which it was 
 originally intended. — If the vessel be taken, not- 
 withstanding the resistance she made, and after- 
 wards retaken, still the damage done to her by the 
 defence is most undoubtedly to be compensated for 
 by the underwriter, for the nature of the loss cannot 
 be altered by the subsequent event. 
 
 I believe it to be the prevalent opinion at Lloyd's, 
 that the loss of cables and anchors, which were ex- 
 posed under particular circumstances to an unusual 
 risk, is to be considered a particular average.' 
 
 The loss occasioned, or damage done, (even to the 
 cargo,) by worms or rats eating holes in the bottom or 
 sides of the ship, is not considered a loss by the perils 
 of the sea. 
 
 The documents from which the cause of the loss, 
 as well as the extent of the liability of the under- 
 writers, is to be ascertained, are in general the pro- 
 test and the survey ; and it is but too well known, 
 that these documents are frequently insufficient for 
 that purpose. It is a very useful practice adopted 
 in some places, to insert an abstract of the log-book 
 in the protest ; and where that is not done, an 
 authenticated copy of the log-book ought to be pro- 
 duced. In intricate cases it will sometimes be ne- 
 cessary to examine the master and mariners upon 
 particular points, and to inquire, as far as this is prac- 
 ticable, into the state in which the vessel was before 
 she set sail. 
 
 When the articles which were lost, and which ai'e 
 to be made good by the underwriter under the head 
 of particular average, w^ere not perfectly new, but 
 were reduced in value by wear and tear before the 
 accident, the underwriter cannot be obliged to re- 
 place them by new articles, for the owner would 
 then be in a better situation after the repair than he 
 was before the accident. Were the articles reduced
 
 Adjustment of Particular Average on the Ship. 385 
 
 by wear and tear to one half of their value, the un- 
 derwriter ought to pay only one half, &c. The same 
 remark applies to materials sacrificed for the preser- 
 vation of the whole, and paid for by general con- 
 tribution. — But it is impossible to determine in every 
 single instance the reduction in value which may 
 have taken place ; and it is customary, in England, 
 as well as in most other countries — unless a ship or 
 the materials sacrificed be perfectly new — to de- 
 duct one third for the supposed difference between 
 the value of the articles lost and of those by which 
 they are replaced. It is evident that this rule is 
 more calculated to avoid nice investigation and to 
 prevent disputes, than to afford to the assured a per- 
 fect indemnity, but this is an evil which it would be 
 extremely difficult to remedy, and if the owner loses 
 by it, when the value of the articles was more than 
 two thirds of their original value, he must consider 
 that he will gain, on the other hand, in those instan- 
 ces where the value was less than two thirds. — 
 Different rules have been adopted in some instances. 
 Thus it is the custom of Bordeaux, in regard to 
 West India shipping, to allow 40 months' service for 
 wood-sheathing, and 60 months' for copper-sheath- 
 ing ; and to consider the cordage, sails, &c, as worn 
 one third for the first voyage, two thirds for the sec- 
 ond voyage, and three fourths for the third. — And 
 one of our Insurance associations follows the prin- 
 ciple of making no deduction for copper-sheathing 
 in the first year, and to deduct one fifth during the 
 second year, and so on.*^ This may be a good rule, ^^^'^7i'j"gd^p 
 being the result of long experience ; yet still it can- 154', note. 
 not be considered perfect. It is well known that 
 much depends upon the quality of the coi)pcr, and 
 that bad copper is worn more in one year than good 
 copper will be in three. 
 
 It is customary in this country to deduct one third ™'"^''J,^J"y[' 
 not only from the materials, but also from the labour. 
 49
 
 I 
 
 Anchors. 
 
 386 Particular Average on the Ship. — Benecke. 
 
 This is in many cases a hardship upon the owner, 
 for very often the value of the ship is not increased 
 in proportion to the wages paid, for instance^ for 
 cutting out broken ribs of a vessel and replacing 
 them by new ones. In France, Hamburgh, and 
 other continental places, no such deduction is made. 
 Anchors are considered as not losing in value by 
 being used, and no deduction is made from their cost 
 Iron-work, pricc. But all Other iron- work is subject to the de- 
 duction of one third. (1) 
 
 Da Costa v. 1^]\Q dcductiou of ouc third obtains only when the 
 
 JVewnham, , . . i 7- i 
 
 2 T. R. 407. ship comes to the owner agam, not, thereiore, where 
 she is obliged to be sold by the default of the under- 
 writer. 
 Juited^'uniess Indccd the one third is brought to the charge of 
 ship comes in- the ship-owner, under a supposition only that after 
 hand^"^^ ^ the Completion of the voyage the ship or the articles 
 replaced will be of so much more value to him. And 
 therefore, if, after the repairs — whether they be- 
 longed to general or particular average — the ship 
 be lost in the continuation of her voyage, this sup- 
 position fails, and I can see no reason for deducting 
 the one third in such a case. The owner must bear 
 those charges with which the underwriter has noth- 
 ing to do, as the wages and maintenance of the crew 
 during the repair, and the replacing of articles be- 
 longing to wear and tear, but he cannot be obliged 
 to take upon himself the supposed amelioration, 
 which was a necessary consequence of the accident, 
 and from which he derived no benefit. If the ship 
 do not come to the owner again, it can make no 
 
 (1) In Hamburgh no deduction is made from the iron-work. 
 But painting and other ornaments are not admitted there ; 
 neither are charts, compasses, &c, compensated for by the 
 underwriter. This is not so in England. The painting is al- 
 lowed when the ship had been newly painted before she sailed 
 on the voyage insured.
 
 Jdjustment of Particular Average on the Ship. 387 
 
 difference, in my opinion, whether this was caused 
 by the default of the underwriter or by the subse- 
 quent loss of the vessel for which the underwriter is 
 liable, (a) 
 
 Magens is of opinion that the repairs done to a Repairs done 
 vessel in places where such repairs are more expen- p^c^s wifere*^ 
 sive than they would have been at home, ought to ^'^^y ^^^ ™°ro 
 be paid by the underwriter according to the value thrm they 
 only which the articles replaced had at the time ^0"'^ have 
 
 , , . ^1 . been at home. 
 
 when the msurance was made, and m proportion to 
 the valuation in the policy.' But I can see no rea- i i. p. 55. 
 son why the underwriter should be exempt from that 
 part of the loss which is occasioned by the higher 
 price of materials and labour at a place where the 
 ship in the course of the voyage insured is obliged to 
 repair. The eventual necessity of such expensive 
 repairs is within the consideration of the under- 
 writer, and he must fix the premium accordingly. 
 When the deduction for the difference between the 
 value of the old and new materials is made, the under- 
 writer pays not more than that part of the loss 
 which he has engaged to pay, and the value of the 
 vessel after the repairs notwithstanding their expen- 
 siveness, is not greater than it was before the ac- 
 cident. (6) 
 
 (a) See Notes to Stevens supra as to deduction of a 
 third. — Ed. 
 
 (h) The underwriters must take the risk of the expensive- 
 ness of the repairs, and some latitude of discretion must he 
 allowed to the master in u foreion port as to the |)Iacc of mak- 
 ing the repairs. It sometimes liappeiis that full repairs can- 
 not he made in a foreijrn port, where the ship may happen to 
 be, and often the master makes only partial, or, in some ca.«es 
 merely temporary repairs in a foreij^n ])ort, delaying the 
 making of complete repairs until arrival at the home port, 
 where they may 1)(; made with greater economy. In case of 
 incomplete and in some degree temporary repairs made at the 
 Balize, at the mouth of the Mississippi, and at Havana, though 
 full repairs might have been made at the latter place, at a
 
 388 Particular Average on the Ship. — Benecke. 
 
 Influence of But when the ship has been undervalued in the 
 tianrupln^he policj, oi when the value of shipping and of mate- 
 adjustment of rials in general has much increased since the insur- 
 erage"'"^ '^^ ^uce was made, it would certainly be very desirable 
 that the damage sustained, for which the underwrit- 
 ers are liable, could be estimated so as to show the 
 proportion which it bears to the whole value of the 
 vessel. Let us suppose, for instance, a ship to be 
 valued in the policy at 3000/, which ought to have 
 been valued at 4000/, and let the repairs (after de- 
 ducting for amelioration) amount to 1200/. It is 
 clear that the owner ought to be considered as an 
 underwriter for 1000/, and that, as such, he ought 
 to bear one fourth of the damage, which will not be 
 done if the valuation remain in force, and the loss 
 be adjusted in the usual manner. Now, if it could 
 be ascertained that the articles lost amounted to one 
 fourth of the whole value of the ship in the state in 
 which she was insured, or that this value was re- 
 duced by the damage to three fourths, the under- 
 writers ought to pay of the 1200/, only three fourths, 
 or 900/, and the remaining 300/ must be considered 
 as an amelioration. — It will be difficult, and often 
 impracticable, to compute the proportion of damage 
 in that manner, and thus to counteract the effect of 
 an undervaluation, but still it will be useful to know 
 that this would be the proper method. 
 
 much greater expense, however, than would be requisite in the 
 United States, the underwriters made no objection on the 
 score of the vessel's performing the passages from the Balize to 
 Havana, and thence to the United States, before full repairs 
 were made. [Brooks v. Oriental Ins. Co. 7 Pick. 259.] 
 Underwriters Though the underwriters may object to a particular mode 
 object to re- of repairing damage that is particular average, yet the assured 
 pairs. ^yjjl recover the expense if the repairs be done in a suitable 
 
 manner. In other words the underwriters cannot vary their 
 obligations by their mere arbitrary election. Waller v. Lou- 
 isiana Ins. Co. 9 Martin N. S. 276. — Ed.
 
 Adjustment of Particular Average on the Ship. 389 
 
 Another method of adjusting particular average 
 on ship, when the repairs are much more expensive 
 abroad than they would have been at home, is pro- 
 posed by Magens,"' which is, to make the owner "" ^ p •'>4. 
 liable in proportion to the expected profit on freight. 
 But this would be quite erroneous, for the insurance 
 on the ship (as has been shown in the second chap- 
 ter) has nothing to do wdth the profit of the voyage. 
 There is but one case in which it would be right Repairs ex- 
 
 cj cccdinff 1116 
 
 that the freight should bear a part of expensive re- valuation in 
 pairs, namely, when the expenses of the repairs ex- t|)e amlfuiit for 
 ceed the value of the ship, so that it would be more which the 
 to the advantage of the underwriters on the ship to ,ni™hfhave"'' 
 sell her, and yet the repairs are undertaken with a been sold. 
 view to save the freight which otherwise would be 
 lost. In that case, the sum by which the repairs 
 exceed the loss which would have fallen upon the 
 underwriters on the ship, if she had not been re- 
 paired, is in fact a salvage upon the freight, and 
 ought, therefore, to be borne by the underwriters 
 upon the freight, and not by those upon the ship. 
 
 In a former part of this work, where the subject Tho wages 
 of the crew s wages and mamtenance during a de- tenancc ofthe 
 tention, &c, was treated of with respect to general j'/j^rrepairsfr 
 average," it has been mentioned, that these expenses tiie vessel, &c, 
 ought not to be a particular average at the charge of ",!',,|I,"Vve'r- 
 the underwriters on the ship, but that they are con- ag*; 
 
 . •. 1 1 . Ti 1 • ^u Above, p. 
 
 sidered as such m France under circumstances there 127, seqq. 
 enumerated, to which that of quarantine is to be ad- 
 ded. (1) — It will not be superfluous to observe, that 
 it has been determined in several instances, in this 
 country, that the underwriter on the ship shall not 
 be liable for the charges of wages and maint(niance 
 
 (1) 'The maintenance and wages of the crow during a 
 quarantine are particular average, whether the ship be freight- 
 ed for the voyage or by the month.' Code, art. 403, no. 5.
 
 390 Particular Average on the Ship. — Benecke. 
 
 of the crew.(l ) — Indeed, as the underwriter upon 
 the ship guarantees only the safety of the ship, and as 
 he has consequently nothing to do with the longer 
 or shorter duration, or with the profit or loss of the 
 voyage, it is clear that nothing can fall to his charge, 
 except the actual loss or damage of the ship, and the 
 expenses incurred for the purpose of preventing or 
 repairing such loss. The master and crew are en- 
 gaged by the ship-owner for the purpose of com- 
 pleting the object of the voyage, which is to earn 
 freight, and in the same manner as the proprietor of 
 the cargo has a right to expect that the owner will 
 at his expense provide a crew sufficient for taking 
 care of the cargo and for conducting it to the place 
 of its destination, so the underwriter has a right to 
 expect that the ship will be sufficiently manned for 
 the purpose of being well conducted and taken care 
 of. The owner therefore owes the service of the 
 crew to the freighter and to the ship herself during 
 the whole voyage, and consequently during the time 
 of repairs or detention, which time is a part of the 
 voyage, and he cannot call upon the underwriter for 
 expenses occasioned by occurrences which are foreign 
 to his contract. 
 Labour of But if the crew, during a detention, &c, render 
 
 palrl/" '^ services to the ship or cargo, which are not within 
 their duty, and for which other workmen might have 
 been engaged, I can see no reason why such ser- 
 vices should not be paid for by those to whom they 
 are rendered, in the same manner as if those services 
 had been performed by other people engaged for the 
 purpose, (a) 
 
 (1) Fletchrr v. Poole, Park, 7th ed. p. 89 ; Eden v. Poole, 
 1. c. p. 91 ; Robertson v. Ewer, 1 T. R. 127. 
 
 (a) Neither INIr Stevens nor Mr Benecke mentions particu- 
 lar average on freight. Such an average may occur where 
 only a part of the voyage is performed, or only a part of the 
 cargo delivered. In case of freight ^ro rata itineris peracti.
 
 Adjustment of Particular Average on the Ship. 391 
 
 being earned by a performance of a part of the voyage, the 
 question occurs whether the distance performed and to be 
 performed, or according to the comparative rate of freight for 
 the whole voyage insured and for the part of the voyage to be 
 performed. In the case of Locke v. Lyde, [2 Burr. c. 882,1 
 the former rule is adopted, but in a case decided in Massa- 
 chusetts in respect to a vessel wrecked on Cape Cod on a 
 voyage from Demarara to Biddeford, Mr Chief Justice Par- 
 sons said the pro rata freight earned by the original vessel 
 was the difference between the rate of freight for the whole 
 voyage, and that from the place of the wreck to the port of 
 destination. [Coffin & al. v. Storer, 5 Mass. R. 252.] The 
 same doctrine was adopted in New York, [Searle & al. v. 
 Scovel, 4 Johns. Chan. R. 218, American Ins. Co. v. Center, 
 4 Wend. 45, both cited fully, 2 Phil. Ins. c. 16, § 2.] Indeed 
 the case seems to admit of no doubt. — Ed.
 
 CHAPTER XII. — Of the Memorandum. 
 
 [Stevens, Part 4.] 
 
 Forms of the 
 memorandum. 
 
 The words forming what is called ' the Mem- 
 orandum' are as follow : — 
 
 ' N. B. Corn, Fish, Fruit, Flour and Seed, are 
 warranted free from Average, unless general, or the 
 ship be stranded ; — Sugar, Tobacco, Hemp, Flax, 
 Hides and Skins, are warranted free from Average, 
 under five pounds per cent, and all other goods, also 
 the ship and freight are warranted free of Average, 
 under three pounds per cent, unless general, or the 
 ship be stranded.' («) 
 
 Exception of 
 average. 
 
 Average ex- 
 cepted — in 
 Boston. 
 
 (a) The exceptions to the Hability of the underwriters com- 
 prehended in a memorandum to the English policies, are in- 
 serted in the body of the policy in some of the forms used in 
 the United States, without any distinction from the other stip- 
 ulations, in others they are inserted under the word 3femoran- 
 dum ; as in the English policies. The distinction in this re- 
 spect is of no practical importance, since the exceptions have 
 the same effect whether inserted in one or the other form. — Ed. 
 
 ' The forms of policies in common use, whether in the Unit- 
 ed States, in England, or on the continent of Europe, con- 
 tain an enumeration of articles on which the underwriters are 
 not liable for particular average. But there is very consider- 
 able diversity in these enumerations. In a form of policy at 
 present used by an insurance company of Paris, this exception 
 extends to salt, fruits, unwashed wool, glass-ware, porcelain, 
 and all articles subject to breakage or rust. 
 
 ' In the common forms of policies used in Boston, this ex- 
 ception extends to salt, fish, fruit, grain, (*) hemp, hides, and 
 skins ; and in some forms formerly used, the article of flax 
 was added to this list. 
 
 (*) The meaning of grain in the American policies is equivalent to that 
 of corn in the English.
 
 Of the Memorandum. 393 
 
 On these words many disputes have arisen, and 
 the meaning of them is not yet so well settled as to 
 
 ' This exception is applied to a more numerous list of articles Average ex- 
 in New York. The common policies of that place exempt cepted —in 
 the insurers from particular average on salt, dry fish, fruits, '^^ 
 whether pi-eserved or otherwise, grain, hempen yarn, hides 
 and skins, bar and sheet iron, iron wire, tin plates, tobacco, 
 Indian meal, cheese, vegetables and roots, cotton bagging, 
 pleasure carriages, household furniture, musical instruments, 
 and looking glasses. 
 
 ' The articles usually insured free of average in Philadelphia, Average ex- 
 are, salt, dried fish stowed in bulk, wheat, Indian corn, and p^Pj'^l T~,^" 
 grain of any kind, malt and bread stowed in bulk, and leaf " '^ '^ ^" 
 tobacco ; or, in some policies, tobacco in casks. 
 
 ' There appears to have been a greater diversity in the forms Average ex- 
 of policies used in Baltimore, than in those of either of the ^^}^ ^^ 
 other places above-mentioned, in respect to the exception of 
 average. In the different forms of policies used there, the 
 articles insured free of average are, salt, dried fish, or, in some 
 policies, dried fish stowed in bulk, fruit, peas, seed, Indian 
 corn, and, in most cases, Indian meal ; wheat, and all kinds 
 of grain, with the exception of rice in some policies ; hides, 
 with the addition of pelts in some policies, and of skins and 
 furs in others ; malt, bread, cocoa, and coffee stowed in bulk ; 
 tobacco, or, in some policies, tobacco in casks : and liquids, 
 or liquids in casks, but this kind of articles is omitted in some 
 policies. 
 
 ' In a form of policy used at Charleston, the articles within Average ex- 
 this exception are salt, dry fish, fruits, grains of all kinds. In- ^'^V^^^ ~'" 
 dian meal, flour, coffee in bulk, cheese, bacon, vegetables, and andSavannah. 
 roots ; and in one used at Savannah they arc the same, with ' 
 the omission of flour, and addition of cotton bagging and oz- 
 naburgs. 
 
 'AH these policies, both English and American, exempt the 
 insurers from particular average on all other articles perish- 
 able, or, as it is expressed in some policies, esteemed perish- 
 able, in their nature. 
 
 ' Besides the entire exclusion of partial loss on certain ar- Exception of 
 
 tides, the insurers are generally exempted from partial losses average under 
 
 . • . ^1 ^- i„ I.. *!.« T ->.i a certain rate 
 
 under a certain rate per cent on other articles. In tlie L.(>n- ^^^^ jjarticular 
 don policies insurance is made free of average under five per articles. 
 cent on sugar, skins, hemp, and flax; and in some ])olicics, 
 rum ; and tobacco, and hides, in policies in which tiiesc arti- 
 cles are not free of average. The jjolicies made at Lloyd's 
 differ in this respect, as well as in respect of stranding, from 
 those of the insurance companies. In Boston the insurers 
 
 50
 
 394 Of the Memorandum. — Stevens. 
 
 prevent litigation. My intention is to explain as far 
 as I am able, the meaning of the words, and I am 
 the more induced to do this, from its being one of the 
 subjects recommended by the Provisional Commit- 
 tee of Lloyd's, in their report of the 19th July, 1811, 
 mentioned in the preface to the first edition of this 
 Essay, viz. : — ^ the revision of the policy.'^ 
 
 The objects of our inquiry appear to me to come 
 mider the following heads : — 
 
 1. The Origin and Intentio7i of the Memorandum. 
 
 2. What is meant to be comprehended under the 
 ^^'ords ' Corn, Fish, Salt, Fruit, Flour, and Seed,"* — 
 which ' are warranted free from Average, unless gen- 
 eral, or the ship be stranded.' 
 
 3. What is meant by the words ' free from Av- 
 erage under fire pounds per cent,' and ' under three 
 pounds per cent.' 
 
 4. The meaning of the words ' loarranted free 
 from Average,"^ — ' unless general, or the ship be 
 
 stranded.^ 
 
 are not liable for a partial loss under seven per cent on sugar, 
 flaxseed, bread, tobacco, and rice. In New York, they are 
 not liable for partial loss nnder twenty per cent upon hemp ; 
 or, under ten per cent upon coffee or pepper in bags or in 
 bulk ; or under seven per cent upon sugar, flaxseed, or bread. 
 In Baltimore they are exempted from partial losses under ten 
 per cent upon coffee in bags, and, in some policies, a similar 
 exception is extended to cocoa in bags. In the policy of one 
 of the insurance companies of Charleston, particular average 
 under seven per cent, is excepted on sugar, coffee, cocoa, 
 hemp, flax, flaxseed, bread, skins, hides, and tobacco ; and 
 under ten per cent on the following articles, in bags, namely, 
 coffee, cocoa, pimento, and all other East and West India 
 articles. The Philadelphia policies do not contain any ex- 
 ception of particular averages under a certain rate, besides 
 the general exception of those under five per cent.' — 1 Phil. 
 Ins. p. 485, 6. 
 
 Such is a general account of these exceptions in American 
 policies, though there are no doubt other diversities in the 
 places named, and in others not particularly mentioned in the 
 above enumeration. — Ed.
 
 Of the Memorandum. 395 
 
 5. Of the term ' Stranded ;' and what shall be 
 considered as constituting a stranding within the 
 meaning of the policy. 
 
 Article 1. Of the Origin and Intention of the 
 Memorandum. 
 
 The memorandum itself first appeared at the foot 
 of our policies in the year 1749.'' But almost all » i Magens, 
 the foreign countries that had a code of insurance ^^' 
 laws, had long before made a provision of a similar 
 nature in favour of the msurer. The first instance 
 which I can find on record, is in the policies of the 
 city of Florence in 1530. But it is to be remarked, 
 that none of the foreign policies contained the con- 
 dition relative to the ship being stranded. How 
 these words, which have been and still are the cause 
 of so much contention, came to form part of the 
 memorandum I have not been able to learn. The 
 London Assurance Company were the first to dis- 
 cover their insufficiency to protect the insurer ; for 
 the clause had been inserted in their policies only 
 five years, before they caused it to be struck out ;'' '^J^Tormiiep. 
 and the Royal Exchange Assurance Company short- " ' _ 
 \y afterwards followed their example." art^4.'"'"'' 
 
 The intention of the memorandum appears to Leakage and 
 have been to prevent persons from being insured on '^^'''S'' 
 certain articles, particularly liable to waste, decay, 
 leakage or damage on a sea voyage, or which were 
 of great value and small bulk, under the general ex- 
 pression of ' iroods :'' whereby the insurer would a Ord. Ron. 
 
 ^-11 11111*1 I., iirt 41. 
 
 run a greater risk than he had calculatea on. n\ ,\,„^t. art. lo. 
 the ' memorandum' in the policies made use of in &^'4^^ ^^^^ 
 Lloyd's it has Ikhmi seen, arc; not enumerated goods :t].'& 47. 
 subject to leakage ; — for such articles are, accord- J^/^".^-^- "'^ 
 ing to the custom of Lloyd's, free of average, unless
 
 396 
 
 Of the Memorandum. — Stevens. 
 
 Hamb. tit iv, 
 art. 8. 
 
 Stock, art. v, 
 § 3, &. Policy. 
 Copen. art. 1, 
 §2. & Policy. 
 2 Mao-ens, 
 298 335. 
 
 « Marsh. Q:J2. 
 
 f Poth. Tr. 
 Cont. d'As 
 n. 162. 
 
 g Park, 112. 
 Marsh. 223, 
 note. 
 
 t 2 New Rpp. 
 213. 
 
 i Park, 112. 
 Marshall, 
 223. n. 
 
 it can be shown that the ship had struck the ground 
 with such force as to make it probable that she had 
 thereby deranged her stowage. It is the same with 
 regard to earthenware, and things liable to breakage, 
 — an average on which cannot be claimed except 
 under similar circumstances. 
 
 The warranty respecting certain articles being made 
 free of average under a certain per centage, is of a 
 later date than the general clause of, free of all av- 
 erage. The former clause it is said*" was intended 
 to prevent trifling claims being made on the insur- 
 ers ; and Pothier remarks, on the article in the Ord. 
 of Louis XIV, which forbids average losses to be 
 demanded of the insurers unless they exceed 1 per 
 cent — that ' if the losses are very inconsiderable, 
 the assurers are not bound to indemnify the assured.'' 
 
 Article 2. Of the icords, Corn, Fish, Salt, Fruit, 
 Flour, and Seed. 
 
 It has been determined that the generic expres- 
 sion ' Corn,' comprehends peas and beans and also 
 malt," — together with every species of f:;rain except 
 rice. On a trial where the question was, whether 
 rice was not corn within the meaning of the memo- 
 randum, the usage was proved against its being so 
 considered : and the court held, that the common 
 sense of the words ought to decide, unless a clear 
 usage to the contrary were shown ; and that here 
 the usage accorded with the plain sense of the words, 
 to show that rice was not intended to be exempted 
 from partial loss.'' It has been also held that the 
 word salt, in the memorandum, does not include salt- 
 petre.' This was the opinion of Mr Justice Wilson, 
 at 7iisi prius, (in 1788,) and having never been over- 
 ruled the law so stands. 
 
 The London Assurance Company guard them- 
 selves against any other decision, by inserting ' rice 
 and saltpetre' among the articles free of all average.
 
 Of the Memorandum. 397 
 
 Article 3. Of the words free from Average un- 
 der FIVE pounds per cent and under three 
 pounds per cent. (1) 
 
 The ' memorandum' had been introduced only a 
 very few years before Magens published his valuable 
 work on insurance ; he mentions that it was then un- 
 settled what was the true meaning of the above ex- 
 pressions ; i. e. whether the word average meant any 
 species of loss : — or whether it was only intended 
 to guard the insurer against loss arising from sea- 
 damage.'' k 1 Magens, 
 The sources from which we derive the clause 3^: ^ Bur"' 
 make the word average, i. e. ' single' or ' simple Rep. ii70. 
 
 ? / I,- u u r • V Marshall, 239. 
 
 average, (which the foreign writers oppose 10 gen- 
 eral average,) include all losses proceeding from any 
 other cause than that which produces general aver- 
 age. 
 
 It appears indeed to be distinctly understood, that 
 the warrantry of ' free of average under £3 per cent' 
 on merchandize generally, and on ship and freight, (2) 
 was inserted to prevent trifling claims from being 
 made on the insurers. But there is a difference ot 
 opinion on the subject of the clause ' free of average 
 under £5 per cent,' when applied to such articles as 
 are liable to be washed out ; or of which there may 
 be strictly speaking a partial loss, by the total loss of 
 a part. It is the present practice of Lloyd's to al- 
 low a claim on the insurers for sugar washed out, 
 though it should not amount to £5 per cent. This 
 is said to be on the ground of analogy ; for the law 
 admits a claim on a policy ' free of average' for such 
 
 (1) The ordinance of Copenhagen (art. 1, § 11,) and of 
 Hamburgh, (tit. xxi, art. 7,) include general average under 
 this warranty. 
 
 (2) The word freight does not occur in the warranty at 
 foot of the poUcies of the Royal Exchange and the London 
 Assurance Companies. It is to be presumed, therefore, that 
 all claims for loss on freight are paid, however small they 
 may be.
 
 Hep. 214. 
 
 398 Of the Memorandum. — Stevens. 
 
 1 15 East's part of the goods as are totally lost ;' from which it 
 Rep. udO. jj^g been inferred that the word ' average' was not 
 meant to apply to a total loss of a part. But this 
 inference is not correct, — for since the case above 
 Z 1^^.?*^^ alluded to, it has been determined,"" in an action on 
 a policy ' free of average,' where all the packages 
 of goods (of which sugar w^as a part,) came to 
 hand, — that there was no claim on the underwriters ; 
 though a great part of the sugar was washed out of 
 the hogsheads. (1) 
 
 By a total loss of a part therefore, when applied 
 to the term ' average,' it is meant, — a loss of entire 
 packages, or what may be properly called a total loss 
 of part of the cargo, — and not of a part of each 
 package caused by the operation of sea-damage, 
 which is, by the warranty (as far as it goes,) intend- 
 ed to be excluded from the risk. 
 
 From all that has been written and said on the 
 subject of this part of the memorandum, it may be 
 concluded that the clauses of £3 and of £5 per cent 
 were both inserted for the same purpose, and that, 
 the warranty of £5 per cent was declared on certain 
 articles there enumerated, because they were more 
 liable to sea-damage than the cargo in general. 
 
 The policies of Stockholm, Copenhagen, and the 
 United States, guard against any dispute, by inserting 
 the words ' loss or damage' instead of ' average.' (a) 
 
 Of those articles enumerated under the head of 
 ' free of average under 5 per cent,' if several be in- 
 sured together, and the average be claimed on the 
 whole, the claim should be analysed to find if each 
 be damaged 5 per cent, e. ^. — if a claim be made 
 
 (1) These two ca.'ies, which are of irreat importance to the 
 subscribers to Lloyd's, will be considered more at length in 
 the following article. 
 
 {a) In most American policies the exception is either of 
 ' average,' or of ' particular average,' or of ' partial loss,' un- 
 der 5 per cent, viz. in Boston, New York, Philadelphia, and 
 Baltimore. — Ed.
 
 Of the Memorandum. 399 
 
 of £100, on Flax and Hemp, valued at £1000 — i. e. 
 10 per cent — unless each of them separately amount 
 to 5 per cent, the claim can be substantiated on only 
 one of them. 
 
 Various clauses are inserted in policies to guard 
 the assured against the effect of the words which are 
 the subject of this article. — The following are 
 generally made use of, viz. — w here several species 
 of colonial produce are insured, it is usual to insert, 
 — ' to pay average on each species^ as if separate 
 interests, separately iiisured ;' — on manufactured 
 goods in bales, trunks, cases, &c, — ' to pay aver- 
 age on each package, (1) as if^ &c ; — on sugar, ' to 
 pay average on each ten, ffteeti, twenty hogsheads,'' 
 (as the agreement may be,) ' succeeding numbers, as 
 if^ &c, and in the like manner on other articles. 
 
 It is now indeed considered so much agreeable to 
 usage, where goods are insured direct from the 
 place of growth or manufacture, that if the clauses, 
 * to pay average on each species^ of produce, or ' on 
 each package'' of manufactured goods are not in- 
 serted, yet a liberal construction is put on the omis- 
 sion, and the policy is acted on as if they were. 
 The reason is this, — that no olyection would have 
 been made to it when the insurance was effected, 
 and in consequence it is considered in practice, as a 
 mere verbal omission of the broker, and treated as 
 such: — agreeably to the opinion of Magcns,° who <> Mag. 74. 
 says, — ' in an insurance made generally on goods, 
 each different parcel or kind of goods ought to be 
 considered by itself.' 
 
 (1) Magens says, — almost all tlie ordinances seem deficient 
 in not fully explaining when, and after what manner the 
 damage shall be deemed to exceed three per cent; and he ex- 
 presses a doubt, if 101 chests of goods be insured and three 
 chests be totally damaged, so as to be worth nothing, whether 
 the loss can be claimed of the underwriters. — Strictly speak- 
 ing it cannot, and it is to obviate this dilTicuity that the n MngenB,73, 
 above clauses arc by his recommendation introduced into the 74. 
 policy."
 
 400 Of the Memorandum. — Stevens. 
 
 These words ' to pay average on each species,' 
 &c, or ' on each package,' &c, mean, that it is not 
 necessary the loss should amount to £5 per cent or 
 £3 per cent, (as it may be, according to the nature 
 of the interest insured,) on the whole amount, to 
 enable the assured to claim a loss of the insurer ; — 
 — therefore if, for example, — £1000 be insured 
 ' on ten cases of manufactured goods, valued at £100 
 each, to pay average on each package as if separate 
 interests, separately insured' — and five of the cases 
 be damaged, each £3 per cent — the sum of £15 
 may be claimed ; but it does not mean, that if the 
 whole amount of loss be £30 — or £3 per cent — 
 the claim should be analysed (or opened out) to 
 show that each case was damaged £3 per cent. 
 Because, though it is admitted that a written clause in 
 p 15 Easts general over-rules the printed ones,P (1) yet here the 
 Rep. 163. mutual understanding at the time of effecting the 
 insurance is, that this written clause is to operate 
 in favour of the assured, for whose benefit it is ex- 
 pressly made ; and therefore it cannot in good faith 
 be construed against him. (2) But if it should be 
 thought that there were any doubt on the subject, 
 the assured might add — after the words 'as if 
 separately insured,' — ' if the claim on the whole 
 
 (1) Lord EUenborough says; — 'Where there is any diffi- 
 culty or doubt, the utritien words are entitled to have a greater 
 effect attributed to them than the printed ones, in as much as 
 the written words are the immediate language and terras se- 
 lected by the parties themselves for the expression of their 
 meaning, and the printed words are a general ybr?nM?a adapted 
 equally to their case and that of all other contracting parties 
 upon similar occasions and subjects.' 
 
 (2) Since this was published, the author is proud to say 
 that Lord EUenborough decided a case in the Court of King's 
 
 <i 1 Stark. Bench in exact conformity to the above reasoning,^ viz. : — 
 Rep. 157. that the stipulation ' to pay average on each package as if 
 
 separately insured' does not preclude the assured from re- 
 covering an average loss upon the tcJiole under the usual clause, 
 if it shall amount to or exceed 3 per cent.
 
 Of the Memorandum. 401 
 
 should not amount to £3 per cent.' Or, he might 
 insure each species, — each package, — or each ten 
 hogsheads, &c, — separately, which after all it is 
 imagined he must do to make the underwriter le^yallij 
 accountable, and to bring the policy within the statute 
 which regulates the stamp duty. 
 
 When tobacco is insured from its place of growth, it seems hard- 
 it is usual to insert the following clause, — ' in case to meiuioZ 
 of average, £5 per cent on the amount of the in- that tobacco 
 terest to be deducted from the average.' (1) This not us^ny"^ 
 clause is particularly necessary in policies on Vir- [i°e'''|^^°'Qf 
 ginia tobacco, which is liable to become heated in growth to that 
 the cask. But it is proper on all tobacco, the ^^^'Wing- 
 growth of the United States ; because, from being 
 rolled down to the place of shipping, which is often 
 at a great distance from the place of growth, the 
 cask becomes wet, and the outside of the tobacco is 
 thereby damaged. 
 
 Two questions have arisen on the subject of the One loss must 
 ship being warranted free of average under £3 per ^ ^"^ ''''" 
 cent ; they are as follow : — first, — if a ship during 
 the course of her voyage incur damage (of that na- 
 ture for which the insurer is liable,) not amounting 
 to £3 per cent, and she put into an intermediate 
 port and repair such damage ; and before her ar- 
 rival she a second time incur damage of a similar 
 nature, which, added to the former, makes the 
 amount £3 per cent — whether the insurer is liable 
 for such loss ? This, (as well as the following,) is 
 
 (1) I have been informed by a gentleman of g/eat experi- 
 ence, who was one of the subscribers to old Lloyd's, in Lom- 
 bard Street, — that the intention of the men)orandum when 
 first inserted was, that the £'j i)er cent or c£;3 jier cent (ac- 
 cording to the thing insured) on tlie amount of the interest, 
 should in all cases be deducted from the average, the un- 
 derwriter paying the balance; and that this was then the 
 practice. 
 
 61
 
 402 
 
 Of the Memorandum. — Stevens. 
 
 Ship only at 
 risk and loss 
 in n;iture of 
 general av- 
 erao-e. 
 
 Particular 
 charges in 
 general av- 
 erage. 
 
 among the cases which want authority to settle 
 them. The practice is, that the claim for one acci- 
 dent must amount to £3 per cent. 
 
 The second question is this ; — if a ship, in bal- 
 last, cut her cable to avoid running ashore, or to 
 escape any other imminent danger, — whether a 
 claim shall be made on the insurer though it shall 
 not amount to £3 per cent on the value of the ship ? 
 ' The memorandum,' it is said, ' warrants the ship 
 free of average under £3 per cent unless general, or 
 she be stranded,' and it is contended that this can- 
 not come under the denomination of general aver- 
 age, because there is nothing to contribute to make 
 good the loss, and that the insurer, in case of general 
 average, is only liable to repay to the assured, that 
 sum which he can show that he has been obliged to 
 pay in part of a general contribution; — but here, 
 there being only one individual interest at risk, no 
 claim for general average can be made out ; for the 
 owner of the ship comes direct to the underwriter 
 and calls upon him, as principal, to satisfy his loss. 
 This argument does not appear to be perfectly 
 sound ; for in the case of a general contribution, the 
 sacrifice is made to preserve the ship, the cargo and 
 the lives of the crew ; here two of the objects are 
 attained. It is also the leading feature of general 
 average, that restitution shall be made of those 
 things which are, in time of distress, voluntarily and 
 deliberately destroyed to prevent a greater loss. 
 The loss of the cable in this case cannot come un- 
 der the head of particular average, (or partial loss,) 
 for that must arise from fortuitous accident. It be- 
 ing therefore not of the nature of particular average, 
 but of the nature of general average, it is conceived 
 that the underwriters ought to pay the loss. 
 
 It has been asked in Lloyd's — whether what are 
 called, the particular charges, which attach to the
 
 Of the Memorandum. 403 
 
 cargo or freight, (usual in a statement of general 
 average,) must amount to £3 per cent, to make the 
 insurer liable ? Nearly the same arguments apply to 
 this as to the preceding case. — These charges can- 
 not come under the denomination of particular aver- 
 age, to which only this warranty applies ; they are 
 not of the nature of a loss, but are charges incurred 
 to preserve and bring forward the property ; — the 
 clause only contemplates a loss, and that such loss 
 shall arise from an accident. 
 
 Doubts are expressed by some, whether the claim Whether 
 for particular average must amount to £5 or £3 per as'ai£:iio'ir ' 
 cent, ivithout the chars^es, to make the underwriter duty, «S:c, are 
 
 ,.,,-) r • included in 3 
 
 liable r — tor mstance : — or 5 per cent. 
 
 100 hogsheads of Sugar are insured and valued at 
 .£2000. The partial loss, or particular average 
 amounts to, ^OO 
 
 The extra charges, — of auction duty, sale ) jq 
 
 charges, survey, &c, amount to, i 
 
 £100 
 
 Thus, by the charges being added, the claim is 
 made to amount to £5 per cent. The argument 
 made use of here, is the same as that on the ques- 
 tion of a sale of sound and damaged goods, viz. : — 
 that the charges are a consequence of the damage. 
 This is the very reason given by others, why they 
 should not be allowed to operate in this case ; — the 
 charges are indeed a consequence of the damage, 
 and therefore, it is said, they are not a part of it. 
 The damages must amount to a certain proportion 
 or aliquot part of the principal Ix^fore costs are in- 
 curred ; and it is argued that it would be contrary 
 to all rule, if the damages themselves do not amoinit 
 to the sum required, to permit the costs to be added 
 for that purpose. Others say, that as indemnity is
 
 404 Of the Memorandum. — Stevens. 
 
 the great principle and end of insurance, there is no 
 reason why the charges which are obliged to be in- 
 curred before the damage can be ascertained, should 
 not form part of the average ; — if this be admitted, 
 then there is no farther question. 
 
 The ordinance of Hamburgh perhaps alludes to 
 this subject when it decrees, — that 'the damage 
 done to the ship or cargo must amount to 3 per cent, 
 ^ Ord. Hamb. after the despacheurh charge is deducted.' 
 
 tit. xxi, art. 
 10. 
 
 Article 4. Of the meaning of the ivords ' war- 
 ranted FREE FROM AVERAGE, UNLESS GENERAL, 
 OR THE SHIP BE STRANDED.' 
 
 The meaning of the word ' stranded' shall be 
 considered in the next article. Our present in- 
 quiry will be directed to the general import of the 
 above words. 
 
 "^ I. Of the words — 'warranted free from av- 
 
 erage.' 
 
 Two cases have been determined Avithin the last 
 five years, which throw much light on this subject, 
 and with which it is of great importance the mer- 
 cantile world should be well acquainted. It had 
 been the law indeed ever since the year 1764, that 
 under this warranty the insurers were only liable in 
 the case of a total loss ; but what should be con- 
 sidered as amounting to a total loss as regarded the 
 underwriters was not then defined. In 1780, in a 
 cause where a cargo of peas arrived at the port of 
 discharge in a very damaged state, so as not to be 
 worth more than one fourth the amount of the 
 ' At N. P. freight, — Lord Mansfield held,' that if the specif c 
 MarshaiVale ^^'^^^ comc to the market, the memorandum war-
 
 Of the Memorandum. 405 
 
 rants the insurer to be free from any demand as for 
 a partial loss. (1) 
 
 Two points however are now settled, — viz. : — Total loss of 
 That when goods are warranted free of average, the " p"'" 
 underwriters are liable to pay a total loss of a part, 
 or a partial loss of the whole, if part of the thing 
 insured go in hulk to the bottom of the sea: and, — 
 That, (with the same warranty,) they are not liable 
 to pay a partial loss, though it be in fact a total loss 
 of a part, if that loss be the consequence of sea- 
 damage. 
 
 The first case is as follows :' — the insurance was t 15 Easts 
 on flax, ' warranted free of particular average ;' — ^'^p- ^'^^ 
 the ship was wrecked ; — the assured did not aban- 
 don, but laboured to save the cargo, — and he did 
 save a part, (about one-sixth) though it was much 
 damaged. The following is the judgment of the 
 court ; which was delivered by Lord Ellenborough, 
 and to which the other judges assented. His lord- 
 ship's words are : — 'It was decided in the case of 
 Anderson v. The Royal Exchange Assurance Com- 
 pany," that in order to constitute a total loss where u 7 East's 
 the thing itself subsists in specie, there must be an ^^p- ^'^• 
 abandonment in time to the underwriters. In that 
 case the assured might have abandoned while the 
 corn remained under water ; but they hiboured to 
 get it up and preserve it ; and when they afterwards 
 did abandon, upon finding that it did not answer to 
 them, it was too late. It had been before held' that ^ 1 Term 
 an abandonment must be made promptly, if at all ; ^'P ''' 
 otherwise, if part of the goods be saved to the 
 assured, it is only an average loss. Here there was 
 
 (1) Potliicr holds that if a cargo of corn become cntireli/ rot- 
 ten, the assured cannot abandon; this being only a siniitle ^p^^j^ Contr. 
 average, which would not excuse the assured from paying the jyi^^it. n. f)!). 
 stipulated freight. His reason is, that though the corn be y H„„.rijron, 
 damaged or spoilt it still exists. The damage does not operate Ij^l. Mnr- 
 an entire loss, and the owner is not deprived of it.^" ^^^ > '
 
 406 Of the Memorandum. — Stevens. 
 
 no abandonment ; and therefore under the terms of 
 this policy, which ivarrants the underwriter free 
 j i from particular average, the plaintiffs cannot recover 
 unless there was an actual total loss. But how can 
 it be said that there was a total loss of the whole, 
 when one-sixth of the flax insured still exists in 
 specie, though deteriorated, in the hands of the 
 assured ? As to that part therefore he cannot re- 
 cover. But as to the rest, which was in fact to- 
 tally lost, there is nothing either in reason or pre- 
 cedent to prevent us from saying that the plaintiffs 
 may recover ; for no case has been cited to show 
 that where the least particle of the thing insured 
 subsists in specie, though the greater part of it is 
 actually destroyed, the assured shall be precluded 
 from recovering the value of that which is in fact 
 totally lost. Finding therefore no authority against 
 the construction we have already intimated, and the 
 reason of the thing being with it, I consider the 
 plaintiffs are entitled to recover as for a total loss, 
 ,/ the value of that part ivhich ivas in fact totally lost ; 
 and that they are not entitled to recover for that 
 part which was not totally lost, but still continued 
 to subsist in specie, though deteriorated in value. (1) 
 ? 16 East's The second case to be quoted, "" it may be pre- 
 
 ^^P^^" sumed, settles the point, — that the insurer, with a 
 warranty of ' free of particular average,' is not liable 
 ' to make good a partial loss, — though that loss is in 
 
 (1) It ^yas contended on this trial that the warranty was 
 only meant to save the underwriter harmless, if the goods 
 arrived at the port of discharge in a damaged state, but that 
 in the case of a ship being wrecked in the course of her 
 voyage, the loss was to be considered as total, with benefit of 
 salvage [i. e. what is called in Lloyd's ' a salvage loss.^) It was 
 also contended, that an abandonment was necessary where 
 the loss, by the ship and cargo being wrecked, is in its nature 
 a total loss. This was however over-ruled. The courts of 
 Ut sup. law, as before remarked,* recognize only two kinds of loss ; — 
 total and average.
 
 n/ 
 
 Of the Memorandum. 407 
 
 point of fact a total loss of a part of the thing in- 
 sured, — if it should be the effect of sea-damage. In 
 this case the cargo consisted of sugar and tobacco, 
 the ship drove from her anchors and was wreck- 
 ed ; (1) the whole cargo (as regarded the packages,) 
 was saved and brought on shore, though in a dam- 
 aged state ; the tobacco was quite spoiled by sea- 
 water and worth nothing, and great part of the sugar 
 ivas washed out of the hogsheads. The question 
 was, whether a notice of abandonment could make 
 the underwriter liable to a total loss ? Lord Ellen- 
 borough said ; — 'All the goods were got on shore 
 and saved, though in a damaged state. When the 
 loss happened and the goods were landed, this was 
 not a total loss, however unprofitable they might 
 afterwards be. If this can be converted into a total 
 loss by a notice of abandonment, the clause except- 
 ing underwriters from particular average may as well 
 be struck out of the policy.' Mr Justice Bailey 
 said, — ' The very object of the exception is to free 
 the underwriters from liability for damaged goods. 
 They say, in effect, that they will be liable if the 
 goods are wholly lost, but not if they are only dam- 
 aged.' (2) 
 
 (1) It may be pro])er to state, — that in this, and in the 
 former case, the goods were warranted free of particidar 
 average, unconditionally : — i. e. there was no mention of the 
 words, 'if stranded.' 
 
 (2) Agreeably to tlie above decision, a special jury of mer- 
 chants found a verdict for the defendant in a recent cause, of 
 which these are the particulars: — Ten hogsheads of sugar 
 were insured 'free of particular average' — the ship was 
 wrecked. — All the packages were saved, Avith a very small 
 quantity of sugar remaining in each. — The jury considered 
 that a partial loss from the ettccts of sea-water, — though in 
 point of fact a total loss of a part, — was a portindnr avrrafrr. — 
 for which, according to the warranty, the underwriters were 
 not liable. — Guildhall, 16 .Tuly, IHIG. C. P.' {/Irflhcrfr v. 
 Pearson) MS. Since this was published the case has been 
 reported. And as it is of great consequence to the members
 
 408 
 
 Of the Memorandum. — Stevens. 
 
 ■^ 3 Bur. Rep. 
 1550. Mar- 
 shall, 225. 
 
 II. As to the meaning of the words, * unless 
 
 GENERAL.' 
 
 It has been contended"^ that the words of the 
 memorandum amount to a condition to be free from 
 average unless in the case of a general average, or 
 the stranding of the ship : but, if either of these 
 events should happen, the warranty was discharged. 
 This was over-ruled, as it might be expected it 
 would be, by Lord Mansfield ; — and it is only men- 
 tioned here for the purpose of giving an additional 
 proof, if any were needful, of the ambiguity in 
 wording the memorandum, and of the necessity of 
 a revision of it. The words ' unless general,'^ ob- 
 viously mean, as is the practice, — that in all cases 
 the underwriter shall be liable to the payment of 
 general average, whatever may be the amount. 
 
 a Cited 3 
 Bur. Rep. 
 ].553. 7 Term 
 Rep. 222. 
 Marshall, 
 223, n. 
 
 b 16 East's 
 Rep. 559. 
 
 III. Of the meaning of the words ' or the ship 
 
 BE STRANDED.' 
 
 These words must be taken as they bear upon the 
 whole of this clause. 
 
 Five years after the memorandum was introduced, 
 a cause was tried at nisi prills'" before Lord Chief 
 
 of Lloyd's it is thought proper to give the proceedings at 
 length: — The chief justice (Gibbs) recommended the jury to 
 find a verdict for the plaintiff, subject to the opinion of the 
 court, ' whether this was a total or a partial loss V The au- 
 thor, who was the foreman, respectfully asked his lordship, — 
 ' Whether free of particular average did not mean, — free of 
 the effects of sea-ioater ?'' He answered 'certainly.' — 'Then 
 my lord,' he replied, ' the jury are unanimously of opinion, 
 that the sugar having been washed out by sea-water, and the 
 underwriters being free from the effects of damage from that 
 cause, — there is no claim on the policy.' The judge appear- 
 ed dissatified, but a verdict was recorded for the defendant. 
 At the sittings in the following term, Mr Serjeant Lens moved 
 to set aside the verdict, and liave a new trial, on the ground 
 'that the jury hfid somewhat intemptrately taken upon them- 
 selves to decide the law on this point.' The court refused the 
 rule, and held that the jury had rightly decided.''
 
 Of the Memorandum. 409 
 
 Justice Ryder, and a special jury of merchants, — 
 who considered these words as a condition, holdmg 
 that by the ship's being stranded, the assured was 
 let in to prove his whole partial loss on a cargo of 
 corn. It was in consequence thereof that the in- 
 surance companies struck the words relative to 
 stranding out of their policies.'' <= ut supra, 
 
 This opinion of Sir Dudley Ryder was controverted ^*^^' 
 by Lord Mansfield,'' who held (as did Mr Justice d 3 Bur. Rep. 
 Buller" after him,) that the insurer was liable in case e^4 Term 
 of stranding, only for the damage arising from such Rep. 7d3. 
 stranding. This was considered as law till the year 
 1790, — when Lord Kenyon delivered his opinion to 
 the contrary.* In 1796, it was determined, after I",, ^'^^^, ~ 
 solemn argument before the Court of King's Bench," 211;. 
 that in the event of the ship being stranded, the ^JJ^Sr" 
 assured was let in to claim a partial loss on the ar- Marshall, 234. 
 tides enumerated as free of average, and these ar- 
 ticles were by that event put in the same condition 
 as any other commodity. (1) Lord Kenyon said, 
 * if it had been intended that the underwriters should 
 only be answerable for the damage that arises in 
 consequence of the stranding, a small variation of 
 expression would have removed all difficulty ; they 
 would have said, ' unless for losses occasioned by the 
 stranding.' But in the body of the policy they have 
 insured against all losses from the causes there 
 enumerated, which include stranding ; and then fol- 
 lows this memorandum, the evident meaning of 
 
 (1) It may be remarked of those goods, (which are war- 
 ranted free of particular average, unless the ship be stranded,) 
 that if they arc by the stranding put in the same condition as 
 any other goods which do not come within the warranty — 
 then no claim should be made on the insurer for the effects of 
 any other damage than that which he would be liable to on 
 any other goods — which in a case of this nature can only be 
 sea-damage — and not any damage from the nature of the 
 article. 
 
 52
 
 410 Of the Memorandum. — Stevens. 
 
 which is, " free from average unless general, or un- 
 less the ship be stranded ;" so that if the ship be 
 stranded, the insurers say they will be answerable 
 for an average loss. That appears to me to be the 
 true sense and grammatical construction of the po- 
 licy.' Mr Justice Ashhurst said, — ' As it is difficult 
 when a ship is stranded to determine whether or not 
 the damage to the cargo arose from the stranding, or 
 in what degree it was imputable to that cause, this 
 memorandum seems to have been introduced to 
 avoid that inquiry, and that when the ship has been 
 stranded, the insurers consent to ascribe the loss to 
 that cause. This construction will prevent endless 
 litigation.' (1) This was the opinion of a most sen- 
 sible and learned judge : — but it is respectfully sub- 
 mitted, that if the intention of the parties were only 
 to prevent litigation — the striking out altogether of 
 the words ' or the ship be stranded,' would be more 
 conducive to that end than any construction that may 
 be put on them. 
 
 Article 5. Of the word ' stranded ;' and ivhat 
 shall be considered as a stranding ivithin the mean- 
 ing of the policy. (2) 
 
 For a ship to be stranded within the meaning of 
 
 (1) This opinion of Judge Ashhurst will remind us of that of 
 Molloy, who wrote one hundred and fifty years ago, — and 
 who in his book called Dc Jure Maritimo et Navali, — speak- 
 ing on the subject of the perils enumerated in the policy, — 
 says, the words are so comprehensive, that all those various 
 questions which occasioned much debate and controversy 
 among the lawyers of former days are 7iow finally settled! 
 Though we are not well acquainted with the lawyers who 
 preceded Molloy, nor much with him as a lawyer, yet we 
 may safely affirm that he was no prophet. 
 
 (2) On a late occasion in Guildhall, when the author was 
 on the jury, the learned lord who presided in the Court of
 
 Of the Memorandum. 41 1 
 
 the policj, it has been said that, she must be cast on 
 shore by the violence of the winds and waves, or 
 run aground to avoid a jii'cater dan2;er.'' Some un- h Marshall, 
 derwriters in Lloyd's contend that to be stranded, a " ' 
 ship must be actually wrecked and leave her re- 
 mains on the beach. Those who say this, perhaps 
 argue more from the hardship of the case, than from 
 precisely a wish to give the true meaning of the 
 term; — they imagine that if stranding be not lim- 
 ited to this, every touching of the ground might be 
 considered a stranding, and a claim be in conse- 
 quence let in to a partial loss on the articles enum- 
 erated as free of average, unless this event take 
 place; — and thus the memorandum itself will be 
 rendered nearly nugatory. An ingenious writer ' on 
 Practical Seamanship'' seems to be of the same ^^Oarcy Lev- 
 opinion, he gives the following definition of the "' " " 
 word, ' when a ship is run ashore so that she can- 
 not be got off, she is said to be stranded.' The 
 ordinance of Hamburgh defines stranding, — ' got 
 fast upon a sand."' According to Dr Johnson, the k Ord. Hamb. 
 word ' strand' means ' the verge oi the sea or ot 
 any water ;' — ' to strand' is ' to drive or force upon 
 the shallows.' From which it may be infeired — 
 that to 'be stranded' m(>ans to remain upon the 
 strand for some specific length of time, not merely 
 ' a touch and go,' but a restijig there. 
 
 The great difficulty as it affects a policy ol m- 
 surance, appears to be to distinguish between a com- 
 mon casualty of the voyage, — a simple strandmg 
 or lying on the ground, — and an accident which 
 
 King's Bench said, — ' It is much to be huncnted that some 
 understanding cannot be had on this subject. Litlier aDnlisii 
 the clause or determine what shall constitute a stranding )MtM- 
 in the meaning of the policy. This might easdy be dehncd, 
 and when once so defined it would be of little or no conse- 
 quence in general, whether it operated for or against cith.-i 
 of the parties because its operation would be general.
 
 412 Of the Memorandum. — Stevens. 
 
 might be fatal, or at least very injurious, if not 
 timely prevented. 
 
 Four cases have come before the Court of King's 
 
 Bench, in which the meaning of the word has been 
 
 fully considered — three of these were tried at nisi 
 
 prius, and the fourth had a solemn argument at bar. 
 
 The first was before Lord Kenyon, in the year 
 
 1 Marshall, 1799 •' who held that a vessel was to be considered 
 as stranded, ( so as to let the assured m to recover 
 a partial loss on corn,) which had run on some wood- 
 en piles, four feet under water, in Wisbeach river, 
 about nine yards from the shore, — but placed there 
 to keep up the banks of the river, and which lay on 
 these piles until they were cut away. 
 
 "> Marshall, In 1801'" a causc was tried, also before Lord Ken- 
 
 ^^- yon, who determined the point that every resting on 
 
 the ground could not be considered a stranding. 
 Here the ship arrived in the Thames, but upon 
 coming up to the pool, which was full of vessels, 
 one brig ran foul of her bow and another of her 
 stern, in consequence of which she was driven 
 aground, and continued in that situation for one 
 hour. Lord Kenyon told the jury, that unskilled as 
 he was in nautical affairs, he thought he could safely 
 pronounce that this was no stranding. The jury 
 were of this opinion, and found a verdict for the de- 
 fendant. 
 
 The third cause to be cited was tried in 1813, 
 before the late Lord Chief Justice of the Court of 
 
 ^ 3 Camp. King's Bcuch." It w as an action to recover an av- 
 ep. 429. erage loss on a cargo of barley, and the question 
 was, — ' whether the ship w^as stranded w ithin the 
 meaning of the memorandum ?' 
 
 As the ship was proceeding down the river from 
 Limerick, the wind took her ahead and she went 
 ashore stern foremost. There she remained fast for 
 two hours till the tide flowed, when she got off and 
 proceeded on her voyage. A witness stated that
 
 Of the Memorandum. 413 
 
 she must have strained a good deal while lying on 
 the ground, but when she again floated it was not 
 perceived she had sustained any injury. — Lord El- 
 lenborough said, ' I am of opinion there was here a 
 clear stranding within the meaning of the memoran- 
 dum. It is not merely touching the ground that 
 constitutes a stranding. If the ship touches and 
 runs, the circumstance is not to be regarded. There 
 she is not in a quiescent state. But if she is forced 
 ashore, or is driven on a bank, and remains for any 
 time upon the ground, this is a stranding without 
 reference to the degree of damage she thereby sus- 
 tains. To remove all doubt upon the question, this 
 clause is introduced. The stranding is a condition 
 precedent, and when that is fulfilled, the warranty 
 against particular average ceases to have any op- 
 eration.' 
 
 The last case to be cited was tried before Lord 
 Ellenborough at nisi prius in the London Sittings 
 after Michaelmas term, 1815. The action was 
 brought to recover an average loss on a cargo of 
 oats on board a ship bound from Barnstaple to Lon- 
 don. It appeared on the trial that the ship struck 
 upon a rock near Grimsby, where she remained sta- 
 tionary on her beam-ends for about a minute and a 
 half; and then got off into deep water and resumed 
 her voyage. His lordship was of opinion, that this 
 was not a stranding within the policy, and thcrel'ore 
 directed the plaintiff to be non-suited. In Hilary 
 term a motion w as made to set aside the non-suit 
 and have a new trial. The first and second cases 
 above quoted were brought forward by the counsel, 
 — on the Jirst, Lord Ellenborough remarked, — 'I 
 should not take the difference, whether the shij) was 
 thrown upon the piles, mud, or what is in common 
 parlance called the strand, provided it is a stoppage 
 of the voyage. It must ha fixed on the place where 
 it stops, whether it be upon the shore or on any other
 
 414 Of the Memorandum. — Stevens. 
 
 place. There must be a resting, mi interrnptiori of 
 the voyage.^ It was then contended, that m the case 
 before the court there was in point of fact an un- 
 equivocal resting, wo matter for what time — there 
 was an actual stopping, and resting upon the bottom 
 for a minute and a half. The ship was actually ar- 
 rested in the progress of her voyage for that period. 
 If the voyage was stopped for any time, no matter 
 how short, it was a stranding within the meaning of 
 the memorandum. Lord Ellenborough said, — ' the 
 evidence at the trial was, that the ship, coming out 
 of the harbour of Great Grimsby, struck upon a 
 rock and remained there about a minute and a half. 
 You must then come to this rule, — that every in- 
 stantaneous stoppage of the progress of the voyage 
 is a stranding — that a stoppage for the minutest 
 portion of time is an interruption of the voyage, and 
 consequently a stranding.' The counsel said, — ' I 
 must certainly contend that.' ' Then,' resumed his 
 lordship, ' I say that is not the meaning of a policy 
 of this sort. The true meaning of it is, — where 
 there is a settling of the ship upon the bottom from 
 which a number of injuries may arise, — such as the 
 straining of all the timbers, and so forth, where there 
 is a sort of wreck y?ro tempore — then, and then only 
 are the underwriters liable. There was never more 
 waste of understanding in the discussion of any sub- 
 ject, than in endeavouring to find out the meaning 
 of this word "stranding," which was rather the con- 
 struction of a term of science than a question of 
 law ; and I should never have made this observation 
 perhaps, did I not feel some degree of conscious 
 shame in the part I myself have taken in the dis- 
 cussion, when activ^ely engaged in the profession. 
 There must be a wreck of the ship pro tempore to 
 ° 4 M «&Sei bring it within the memorandum.'" (1) 
 
 503. 
 
 (1) It would be difficult for nautical men to know what is
 
 Of the Memorandum. 415 
 
 A great deal has been said in Lloyd's about the 
 necessity of extra-assistance being rendered to the 
 ship ; — of part of her cargo being taken out ; — 
 and in fact, that if she were got ofi" the ground 
 without any other assistance than that of her own 
 crew, there would be no stranding within the mean- 
 ing of the policy. I anj glad that I have it in my 
 power before closing this subject, to say that all 
 these are mere speculative points. This last de- 
 cision will, it is to be hoped, if the clause be sutfer- 
 ed to remain, put the matter finally to rest. (1) 
 
 As Magens' work on insurance is scarce, and is 
 not generally known to men of business of the 
 present day, and as he was a merchant of great 
 knowledge and experience in insurance and shipping 
 affairs ; — perhaps I cannot bring this essay more 
 usefully to a close than by quoting what he says in 
 the last pages of his elaborate work. 
 
 He strongly recommends to merchants'' to proceed p i Mag. 427 
 on his plan ; — (that of stating general and particular 
 
 meant by this sort of wreck. It lias been however suggested 
 to the author, that it is prol)able his lordship had in view the 
 • echouement simple' of the French writers, which is described 
 by Emerigon, ch. 12, § 13. 
 
 (1) Since the third edition of this Essay two cases of Strand- 
 ing have been decided. By the Jirst it was determined, — 
 where a vessel struck upon a rock and remained fixed for the 
 space of fifteen or twenty minutes, in consequence of which 
 she sustained a material injury, — that this was a stranding 
 for which the underwriters were liable. 'i In the second (which i 1 Stark. 
 is not yet reported) the author was on the jury, when it was ^^P- '^'•^■ 
 held by C. J. Dallas, that to constitute a stranding, ' a ship 
 must be driven on shore by the force of the winds and waves, 
 or strike on a hidden rock.' The ship, in the case before the 
 court, was in harbour, where the tide left her, she fell over, 
 and was bilged : this the judge said was not a stranding with- 
 in the meaning of the policy.
 
 416 Of the Memorandum. — Stevens. 
 
 Average cases,) and he remarks, — ' by the diversity 
 of cases, as well as of the intricacies and difficulties 
 resulting therefrom, which time might present to 
 their view, they would find that a great deal more 
 remains unobserved than has been touched on al- 
 ready ; and that the longer we apply ourselves to 
 the practice of making observations, the more we 
 shall be convinced that we knew but little before. 
 ' If we look back to the suits at law which have 
 'This was in been Carried on for many years past' about these 
 affairs, and could at the same time be let into a true 
 detail of their merits, we should find that most of 
 them have arisen from our not having given our- 
 selves the trouble to explain our own meaning, and 
 the accustomary methods of such dealings. — And 
 we are thoroughly persuaded, that the lawyers of 
 most eminence will allow, that such matters as are 
 contained in the foregoing cases, may be much bet- 
 ter decided by experienced merchants and good ac- 
 countants, than by persons however learned they 
 may be, who have studied the law only.'"
 
 CHAPTER XIII. — Of the Memohandum. 
 
 [Benecke, ell. 10.] 
 
 The deterioration originating in the natural quality Losses 
 of the articles insured, and not in external and acci- thjfjnteinfi'" 
 dental causes, is, of course, always 'the loss of the quality of the 
 proprietor, the responsibility of the underwriters not surcd are"not 
 extending beyond the perils of the navigation. Thus within the 
 when, without any external cause, fruit becomes 
 rotten, corn is heated, or wine turns sour, &c, the 
 loss will fall upon the proprietor, whether such arti- 
 cles were or were not named in the policy, and 
 whether they were or were not warranted free from 
 average. But nevertheless the underwriters are But still the 
 exposed to a much greater risk upon articles of a ^^,ritors L" ^'^' 
 perishable nature than upon such as are less liable greater upon 
 to decay. For in the iirst place an external cause, Ihanupon 
 for which the underwriter is liable, will operate in a ''V"^r articles. 
 
 • ^ r 1 Memoran- 
 
 much more destructive manner upon articles or the dum. 
 first description — the same quantity of sea- water 
 will deteriorate one article perhaps 50 and another 
 only 10 per cent: and in most cases the damage 
 occasioned by the effect of the sea-w ater will not 
 be distinguishable from that which w^as produced by 
 the internal quality : so that the whole deterioration 
 being ascribed to the visible external cause, the 
 underwriter will be obliged to bear that part of the 
 loss also from which he ought to be exempt. And 
 secondly, in cases of arrest, detention, loss, or even 
 protraction of the voyage, &c, goods of a perishable 
 nature, which at the time of the accident were not, 
 or but slightly damaged, may be materially injured 
 during the delay, and a loss may ultimately fall upon 
 the underwriter, from which he would have been 
 free if the goods had been less susceptible of dete- 
 rioration. 
 
 To counterbalance this effect, which the natural 
 quality of certain articles must necessarily produce 
 53
 
 418 
 
 Of the Memorandum. — Benecke. 
 
 a See the 
 Paris policies 
 of insurance. 
 
 Memoran- 
 dum. 
 
 J 
 
 Strandinnr. 
 
 upon the risk of the underwriters, and to put goods 
 of every description upon an equal footing, various 
 clauses and stipillations have been resorted to in all 
 commercial countries. In some places it is custom- 
 ary to insure very perishable articles, such as fruit, 
 cheese, plate glass, salt, &:c, free from particular 
 average; to deduct 15 per cent from the damage 
 siistained by another class of merchandize, such as 
 corn, cocoa in bulk, flour in sacks, &c ; and to de- 
 duct 10, 5 or 3 per cent from the damage upon cer- 
 tain other goods according to their different nature. "" 
 In other places again, as in Hamburgh, goods which 
 are very liable to damage are insured free from par- 
 ticular average, unless the ship be stranded, and 
 upon certain other goods the damage is not paid 
 unless it exceed 10 per cent, but is in that case paid 
 without deduction. — It is very necessary for those 
 who insure in foreign places, to be well acquainted 
 with the different usages which have been introduced 
 in this respect. 
 
 The English policies of insurance contain the fol- 
 lowing memorandum, which was introduced in the 
 year 1749: 
 
 N. B. Corn, fish, salt, fruit, flour, and seed, are 
 warranted free from average, unless general, or the 
 ship be stranded ; sugar, tobacco, hemp, flax, hides, 
 and skins, are warranted free from average, under 
 five pounds per cent. And all other goods, also the 
 ship and freight are warranted free of average under 
 three pounds per cent, unless general, or the ship be 
 stranded. (1) («) 
 
 (1) The policies of llie two insarance companies leave out 
 the words ' or the ship be stranded,' and they add mim to the 
 articles warranted free from average under 5/ per cent. They 
 formerly omitted freight out of the articles warranted free 
 from average under 3^ per cent, which, however, the Lond. 
 Ass. Co. has lately introduced. The policy of the Roy. Ex. 
 Ass. adds tobacco and hides, and that of the Lond. Ass. Co. 
 rice and saltpetre to the articles warranted free from average. 
 
 (a) The form of policies used in New York and the ports
 
 Of the Memorandum. 41 9 
 
 It is the object of this chapter, to explain the 
 memorandum in all its parts as it is now practically 
 miderstood, and to compare its operation with the 
 object for which it was originally intended. 
 
 As to the articles enumerated in the memorandum, Articles 
 it is to be observed, that corn has been held to in- '"'^'"ated. 
 elude peas, beans, and malt, but not rice ; and that 
 the term salt, does not include saltpetre.'' (a) b park, 7th 
 
 With regard to the circumstances under which a '''^ i' ^~^- 
 ship is considered as being stranded, as we have to mja^ by 
 
 enu- 
 
 slrandinir. 
 
 to the southward of New York, do not contain the provision 
 whereby the memorandum is defeated by stranding-. The 
 Boston policies, and those of other northern ports, contain the 
 provision that underwriters, in case of stranding, shall be 
 liable for any loss occadoned thereby to the memorandum arti- 
 cles. 1 Phil. Ins. 484. 
 
 Where a policy contained the usual printed exception of 
 particular average under a certain rate per cent, (in this case 
 5 per cent) on ' all other articles' than those enumerated in 
 the memorandum, and the cargo consisted of such ' other 
 articles ;' and the same policy contained a written clause by 
 which the underwriters were exonerated from })articular aver- 
 age under ten per cent, it was held in this as in other cases, 
 that the written must prevail over and control the printed part 
 of the policy. Coster v. Pha^n. Ins. Co., 2 Wash. C. C. R. 
 51. 2 Phil. Ins. c. 18, No. 5. — Ed. 
 
 (a) It has been held in New York, that sarsaparilla was 
 not comprehended under the exception of roots, it not being 
 a perishable article, liakewcll v. Unit. Ins. Co., 2 Johns. 
 Cas. 246. 1 Phil. Ins. 487. It was also held by the same 
 court, that the specification of one species of article excluded 
 others, as the excejjtion of dry fish from particular average, 
 would leave pickled fish subject to average. Barker v. Lud- 
 low, 2 Johns. Cas. 289. 1 Phil. Ins. 487. 
 
 So it was held in New York, that fur skins did not come 
 within the exception of skins from particular average, upon 
 the same ground on which sarsaparilla was not considered to 
 be a root within the exception, viz. that fur-skins were not a 
 perishable article. Astor v. Union Ins. Co., 7 Cowcn, 202. 
 2 Phil. c. 18. 
 
 It has been held in Louisiana, that articles not enumerated 
 in the memorandum may be subject to the memorandum under 
 the clause, and 'all other articles perishable in thcjr own 
 nature.' Neilson v. Louisiana Ins. Co., 5 Martin, N. S. 2b9. 
 2 Phil. Ins. c. 18, No. 7. — Ei>.
 
 420 
 
 Of the Meinorandum. — Beiiecke. 
 
 Dobson V. 
 Bolton, Park, 
 7th ed. 177. 
 
 Baring v. 
 Henckle, 
 Marsh, 'M ed. 
 23r2. 
 
 Harm an v. 
 Vaux, 3 
 Campb. 420. 
 
 Carruthers v. 
 Sydebotham. 
 4"M. &, S. 77. 
 
 consider here exclusively the legal meaning of the 
 term stranding, which can be collected only from 
 decisions, it would be quite useless to enter into any 
 discussion concerning the meaning of that expres- 
 sion as used by mariners. 
 
 It deserves to be noticed, that the question regard- 
 ing the import of the term stranded never became 
 the object of judicial investigation in this country, 
 before the year 1799. — In a case which came on in 
 that year at Guildhall, Lord Kenyon told the jury, 
 that a ship running on some wooden piles, four feet 
 under water, erected in Wisheach river, about nine 
 yards iiom the shore, but placed there to keep up 
 the banks, and lying on such jnles till they were cut 
 mvay, was a stranding within the policy, so as to 
 subject the underwriter to an average loss upon 
 corn. — In a subsequent case, where the ship arrived 
 in the Thames, but upon her coming up to the Pool, 
 one brig ran foul of her bow, and another of her 
 stern, in consequence of which she was driven 
 aground and continued in that situation an hour, 
 during which period several vessels ran foul of her. 
 This w as not considered a stranding. — This decis- 
 ion, however, seems to be hardly reconcilable with 
 subsequent cases. 
 
 A ship proceeding down the river from Limerick, 
 was forced on shore by the wind, and remained fast 
 for two hours till the tide flovred, when she got off 
 and proceeded on her voyage, without having re- 
 ceived any material damage by the accident. Lord 
 Ellenhorovgh held this to be a sufficient stranding, 
 to obviate the effect of the warranty. 
 
 A ship, under the conduct of a pilot, in her course 
 up the river to Liverpool, was, against the advice of 
 the master, who was obliged to go on shore, fastened 
 to the pier of the dock basin by a rope to the shore, 
 and left there in the care of the mate. The tide 
 leaving her, she fell over and bilged ; and though
 
 Of the Memorandum. 421 
 
 she righted again with tlie tide, she had ten feet 
 water in her hold, by which her cargo, consisting of 
 flax-seed and potashes, was considerably damaged. 
 The court held, that this was a stranding, and that, 
 as the master was obliged to take a pilot on board,' " % tho 
 he was not answerable for his conduct, and the loss, piioi-?c't°37 
 therefore, could not be considered as occasioned by g. Jii.c. 7^. 
 the act of the servant of the assured. 
 
 But not every touching or striking upon a fixed 
 body in the sea or in a river, will constitute a 
 stranding. — A ship, in coming out of a port with a M'Dougic v. 
 pilot on board, struck upon a rock, about a cable and 4m.'&s.4oI. 
 a half's length from the shore, in consequence o^ 1 q"'\'|J'o'^3" 
 which she fell on her beam ends and remained upon 
 the rock a minute and a half, after which she made 
 a great deal of loater. Lord Ellenhorough said, ' I 
 am of opinion that this is not a stranding. Ex vi 
 termini^ stranding means lying on the shore, or some- 
 thing analogous to that. To use a vulgar phrase, 
 which has been applied to this subject, if it is " touch 
 and go" with the ship, it is no stranding. It cannot 
 be enough that the ship lay for a few moments on 
 her beam ends. Every striking must necessarily 
 produce a retardation of the shi])'s motion. If by 
 the force of the elements she is run aground, and 
 becomes stationary, it is immaterial whether this be 
 on piles, or a muddy bank of a river, or on rocks 
 on the sea shore : but a mere striking will not do, 
 wheresoever that may happen. I cannot look to the 
 consequences without considering the causa causans. 
 If the assured mean to be indemnified against the 
 loss arising in this manner, they must introduce a 
 clause making the underwriter linbh^ for a particular 
 average, occasioned by the ship striking on a rock. 
 There has been a curiosity in the cases about strand- 
 ing not creditable to the law. A little common 
 sense may dispose of them more satisfactorily.'
 
 422 Of the Memorandum. — Benecke. 
 
 Baker v. A VGssel Striking upon a rock and remaining fixed 
 
 Starkfe, 43G. there for the space of 15 or 20 minutes, in conse- 
 quence of which she sustains material injury, this 
 constitutes a strandino;. 
 Hearne v. Ed- Where a vcssel, being under the conduct of a pilot, 
 Brod.&Bing. ^^^ goi^^g "P the harbour of Cork, took the ground 
 388. from shallowness of water, and remained so aground 
 
 for eight hours, until the tide enabled her to float, 
 and the following day again took the ground from 
 the same cause ; and subsequently, the pilot still re- 
 maining in command, the vessel was moored during 
 high water at the quay where she was to discharge, 
 and on the ebb tide took the ground, made a list, 
 and lay on her broadside for two whole tides, by 
 which the vessel and her cargo were much injured : 
 It was held that this was not a stranding for which 
 the underwriter was liable, the taking the ground in 
 the above manner being no more than what is usual 
 with all vessels of the same class in proceeding up 
 Cork river. (In Carruthers v. Syd. the vessel was 
 moored contrary to the usual way, out of the usual 
 place, and against the express orders of the master.) 
 5B. & Aid. It is otherwise where an accident concurred to pro- 
 duce the loss. 
 
 Thus it appears, that in order to constitute a 
 stranding, it is not necessary that the ship should be 
 driven on shore or upon a strand ; nor that she can- 
 not be got off at all, or not without great difficulty ; 
 nor that she be rendered unable by the accident to 
 proceed upon her voyage without first being repaired. 
 It is sufficient that she be forced, by some accident 
 within the policy, upon a fixed body in the sea or 
 river, and remain stationary there for some space of 
 time. — An injury, however great, occasioned by the 
 vessel striking against a rock, unless the vessel re- 
 d See below "^^^^ fixcd upou the rock for some time, will not 
 the case of ' take awav the effect of the warranty.*^ 
 
 Burnett v. "' 
 
 Kensington.
 
 Of the Memorandum. 423 
 
 It has for a considerable time remained doubtful, Liability c.r 
 whether in the case of a ship being stranded, the wrUe?*in the 
 underwriters are obliged to pay all the particular case of the 
 average which the goods sustained during the voyage, stranded." 
 or only that occasioned by the stranding, — In a case 
 which occurred on a policy upon corn, in 1754, it 
 w as held, by Sir Dudley Ryder, that the stranding 
 lets in the assured to claim his whole partial loss ;•" ^ Cantiiion v. 
 and it was in consequence of this decision that the co^Marsh. 3d 
 Lond. Ass. Co., and soon afterwards also the Roy. ed.2iu. 
 Exch. Ass. Co., struck the words or the ship he 
 stranded out of the memorandum on their policies. 
 
 In subsequent cases, in which, however, the ques- 
 tion did not come directly before the court. Lord 
 Mansfield,^ and also Mr Justice Buller,^ expressed ^ i" Wiison 
 themselves in favour of the opinion, that the under- Bur. 1550 ; 
 writer is liable only for the loss arising from a '^"p^^|;r'i^ 
 stranding of the ship; — and Lord Kenyon again Marshall, 219. 
 maintained the opposite doctrine.'' But it is now v. Lushing- 
 settled by a solemn decision of the court of King's ]^^> 4 t. r. 
 Bench, that, if the ship be stranded, that destroys 1, in Bowring 
 the exception, and lets in the general words of the iiJJ',"ij' o'oo . 
 policy, so that the underwriter is liable for any par- and n< sbitt v! 
 tial loss, though it did not arise from the stranding. ^^^«'""g^»"- 
 
 A ship, with a caro;o of fruit, struck upon ;i sunk- Burnett v. 
 
 1' ,•! .1 1 1T1 Kensington, 
 
 en rock, by which accident, though she did not re- 7 t. 11.210. 
 main on the rock, several of her planks were start- 
 ed, and the wat(!r flowed into the hold and over the 
 cargo, so that it became necessary to run her on 
 shore to save both ship and cargo. The ship, how- 
 ever, afterwards arrived at her port of destination, 
 but with the fruit greatly damaged, not by the 
 stranding, but solely in consequence of the striking 
 on the rock. The underwriters were held lial)lc for 
 this particular average. 
 
 The words unless general in the memorandum 
 :.iean, that the und(;rwriter shall be liable for gener- 
 al average ; but not that in the case of a general
 
 424 Of the Memorandum. — Benecke. 
 
 average he shall be liable to pay also the particular 
 i Wilson V. average.' ((i) 
 
 Smith. ^ ^ ^ 
 
 Liability of Thus it is clear that, unless a stranding take 
 writer iriio place, the underwriter is not subject to pay any par- 
 stranding ticular average, however great, on the articles ex- 
 a Lb pace, ^^gp^g^^ ]j^ ^j^g memorandum, and that nothing short 
 of a total loss can be recovered upon such articles. 
 The question, as to what shall amount to a total 
 loss, with respect to such articles, is fully con- 
 (i) See p. 427. sidcrcd bclow. (h) 
 
 (a) 111 case of a vessel passing along the course of improv- 
 ed navigation from AVisbeach to Wakefield, the water was 
 drawn off" for the purpose of repairs, and the vessel was in the 
 mean time put in what Avas supposed to be a secure situation, 
 near to some others, but on the water being drawn off" she 
 struck upon some piles which were not known to be there. 
 This was held to be a stranding, one reason given being that 
 this was out of the ordinary course of navigation. Rayner 
 V. Godmond, 1 B. & A. ^o. 2 Phil. Ins. c. 18. 
 
 In case of insurance on goods from Liverpool to Gibraltar 
 free of particular average unless the ship should be strand- 
 ed, the vessel put into Holyhead bay on account of tem- 
 pestuous weatlier, when in entering the harbour she struck 
 the fluke of an anchor ; whereby a leak was occasioned and 
 the goods damaged. This was held to be a stranding with- 
 in the meaning of the memorandum, and the underwriters 
 were accordingly held to be liable for the loss. Barrow &. al. 
 v. Bell, 4 B. & C. 736 ; 7 D. & R. 244. 2 Phil. Ins. ch. 18. 
 
 So in case of a vessel in the harbour of Pool, where vessels 
 are usually aground at low tide, which fell over on her side in 
 consequence of not being securely lashed to the quay, this 
 was held to be a stranding, by which the underwriters were 
 held liable on the memorandum articles. Bishop «fc another 
 V. Pentland, 7 B. & C. 219. 1 M. & R. 49. 14 Sarg. & 
 Lowb. 33. 2 Phil. Ins. ch. 18. 
 
 Some American policies contain a provision that in case the 
 ship is bilged, the underwriters shall be liable for particular 
 average on memorandum articles. A ship loaded with wheat 
 being thrown on her beam-ends at sea, whereby her seams 
 were opened and water admitted which injured the cargo, this 
 was held not to be a bilginir. Ellery v. Merchants' Ins. Co. 
 3 Pick. 46. 2 Phil. Ins. ch.l8, No. 4. — Ed.
 
 Of the Memorandum. 426 
 
 Most of the foreign laws, as those of Hamburgh^ 
 Denmark, &lc, stipulate, that the underwriter shall 
 be free from particular average upon all goods, ship 
 and freight, unless it exceed three per cent ; and 
 also free from general average, unless it exceed 
 three per cent. (1) By the law of France, neither 
 particular nor general average is recoverable, unless 
 each exceed one per cent ; but the policies contain 
 stipulations more favourable to the underwriters. 
 
 The object, or at least the effect, of these laws 
 is, to prevent underwriters being harassed with tri- 
 fling demands, which is clear from the circumstance 
 of their being free from such losses, whether the 
 ship be stranded or not. In England, where, by 
 the memorandum, goods generally, and also the ship 
 and freight, are warranted free from average under 
 SI per cent, unless general, or the ship be stranded, 
 this effect is not produced under all circumstances, 
 for the underwriters are liable for the most trilling 
 demands for general average, and also for particular 
 average, however small, when there v/as a stranding. 
 
 The term particular average, as understood at storage, re- 
 Lloyd's, does not comprise the particular charges, oTherexpe^nsea 
 or the expenses incurred for saving or preserving of ^'^^i"^- 
 the cargo or freight, such as warehouse-rent in an 
 intermediate port, which is considered a particular 
 charge on the cargo, and expenses of reloading, 
 which is made a particular charge on the freight.' i Above, p. 
 These charges, however small they may be, are paid ^^^• 
 by the underwriter, independent of the particular 
 
 (1) The particular as well as the general average must sep- 
 arately exceed 3 per cent to make the underwriter liable. In 
 Amsterdam, however, it is customary to pay the general and 
 particular average, if added together they exceed 3 per cent. 
 In Hamburgh, where underwriters pay only one half of the 
 damage sustained by a ship which has not struck upon the 
 ground, such damage is paid if the whole of it exceed 3 per 
 cent ; for instance, if the damage is 4 per cent, then 2 per 
 cent are paid. 
 
 54
 
 426 Of the Memorandum-. — Benecke. 
 
 average. Hence it is clear that they cannot be ad- 
 ded to the particular averaoe, for the purpose of as- 
 certaining whether this amounts to five or three per 
 cent, and that the underwriter is not liable, unless 
 the particular average by itself amount to the stip- 
 ulated percentage. — For the same reason, general 
 and particular average cannot be added to make 
 the underwriter liable if they jointly amount to three 
 per cent. 
 Whether sue- But whether, in the case of a ship incurring par- 
 may'^be com- ticular average twice upon the same voyage, but at 
 bined. different times, the underwriter shall be liable if 
 
 both losses added together amount to 3 per cent, 
 this can depend upon custom alone. The opinion 
 prevalent at Lloyd's seems to be, that each dam- 
 age by itself should amount to 3 per cent, to make 
 the underwriter liable. 
 Ship only at It is the opiniou of some, that when cables are 
 cut, or other sacrifices made to save a ship in bal- 
 last from an impending danger, and the loss amounts 
 to less than 3/ per cent upon the value of the ship, 
 this is not a charge upon the underwriter, because 
 that only is general average which is done to pre- 
 serve the ship and cargo. But I am not of that 
 opinion. For although in such a case there can be 
 no general contribution, or general average in the 
 usual sense of the word, yet the nature of the loss 
 cannot be altered by the circumstance of there being 
 no cargo on board ; and the true meaning of the 
 words ' for the preservation of the ship and cargo' 
 is, for the preservation of the whole concern, which 
 in that case consists of the ship and the effects of 
 the mariners. 
 Charges of That the cxtra charo;es of the sale of damao;ed 
 
 sale of dam- • -i , • n ^ ^ ^ • 
 
 aged goods, articles must have no mfluence upon the calculation 
 of the percentage of the damage is clear from what 
 has been said in chapter IX, page 341. The ali- 
 quot part of the damage by itself, therefore, must
 
 Of the Memorandum. 427 
 
 amount to three or five per cent to make the under- 
 writer liable, and if it does, the extra charges must 
 be separately added to the amount of the loss. And 
 such is the practice at Lloyd's. 
 
 It has frequently been asked, whether the war- 
 ranty ' free from average under three per cent, or 
 under jfive per cent,' liberates the underwriter from 
 the total loss of a part, if such loss amounts to less 
 than thiee or five per cent upon the whole quantity 
 of goods valued in one sum : for instance, if 101 
 chests of goods (each of them being supposed of 
 the same value) be insured together, and three chests 
 be totally damaged, so as to be worth nothing, 
 whether the loss be recoverable from the under- 
 w^riter ?™ This question admits no longer of any "' i Magens, 
 doubt, since it has been determined that underwrit- '' '^ 
 ers are liable for the total loss of a part, and conse- 
 quently such loss is not considered as an average 
 loss." If, therefore, the three chests are either gone J^^^^^^J ^ 
 to the bottom, or completely destroyed by fire, or see p. -isi 
 rendered entirely useless by the effect of sea-water, 
 this will not be an average loss, but a total loss 
 pro tanto; but if they remain of any value, however 
 small, it will be an average loss, and the undern riter 
 discharged." — In the same manner, if of twenty- ° Soo below. 
 
 o , , ^ . J . 1 . in this and 
 
 one hogsheads of sugar, Hjsured m one vaUiation, following 
 one is completely washed out, so as to be literally i">s<^'^- 
 worth nothing, it will be a total loss of a part ; but 
 if any sugar remain in it, it will be a particular av- 
 erage. 
 
 It is evident that the underwriter upon goods in- ,^.;;j;[,;;,;^ '°''^' 
 sured 'free from particular average,' (r/) aiul iipon ,,modsr^^^^^^^ 
 goods exempted by the memorandum, if no stranding |,'|.,j,'','",Vuio 
 
 iiiriiKinindnm, 
 
 {a) The following eifrlit or nine paj^cs are transferred from ):/'J/,)'|"'„'ri'icu-' 
 Mr Benecke's chapter on total loss and abandonment, wliich |„r average ' 
 chapter is omitted in the present volume. — Eu.
 
 428 
 
 Of the Memorandum. — Benecke. 
 
 Mason v. 
 Skurray, at 
 N. P. Park, 
 7th ed. 191. 
 
 Cocking V. 
 Frazer, Park, 
 Idl, 7th ed. 
 
 take place, can be answerable for no other losses 
 upon such goods except total ones. We have seen 
 in what cases such goods may be abandoned upon 
 the ground of the voyage being lost. («) There 
 remains now the question to be considered, — 
 whether, and under what circumstances, such goods 
 may be considered as totally lost at the charge of 
 the underwriters, if they continue to exist in specie 
 in the hands of the assured ? This question has 
 much occupied the attention of the courts ; yet it 
 does not appear to be so fully decided as to remove 
 all doubts upon this highly important subject. — I 
 shall first give a short narrative of the principal cases, 
 and then add a few remarks. 
 
 A cargo of peas (which article falls under the 
 general denomination of corn) arrived at the place of 
 its destination so damaged as to produce only one 
 fourth of the freight. It was proved to be the 
 usage, that if the goods mentioned in the memoran- 
 dum arrive at the place of their destination, though a 
 loss amounting to a total one has happened, the un- 
 derwriters are not liable. Upon this usage, as ex- 
 plaining the meaning of the memorandum. Lord 
 Mansfield considered this to be an average or partial 
 loss. The jury accordingly found for the defendant. 
 
 A cargo of fish was insured from Newfoundland 
 to its place of discharge in Portugal. The ship met 
 with such bad weather, that part of the cargo was 
 necessarily thrown overboard ; and she was obliged, 
 though bound to Figara, to put into Lisbon, where 
 the cargo was surveyed by the board of health, and 
 found to be, through sea damage, rendered of 7io 
 value, so that the ship did not proceed to Figara. — 
 The court were of opinion that the underwriter was 
 answerable for the general average only. Lord 
 
 (a) In the chapter on total loss and abandonment the rest 
 of which is omitted in the present volume. — Ed.
 
 Of the Memorandum. 429 
 
 Mansfield said, that the underwriter, by the memo- 
 randum, unless the ship be stranded, engages only 
 for a total loss. ' Now a total loss of the thing in- , 
 sured, is the absolute destruction of it, by the wreck j " 
 of the ship. The fish may come to port damaged 
 and sthiking ; still as the commodity specifically re- 
 mains, the underwriter is discharged.' 
 
 And where a cargo of fruit, after the ship had M'Andrcwsv. 
 been taken and retaken, arrived at the place of desli- p''i'^',.','!%i^- 
 nation with a damage of 80 per cent. Lord Kenyon ed. t^b! ' 
 said, that the plaintiff could not recover for a partial 
 loss, because there was no stranding ; nor for a total 
 loss, because the voyage was not lost, nor the com- 
 modity wholly and actually destroyed. Had the as- 
 sured heard of the capture before the ship nas in 
 safety, he might have abandoned. 
 
 A cargo of fruit was so much damaged from sea Dyson v. 
 water during the voyage, that on its arri\al at an in- I^^^T'r^'n 
 
 T ° •■"i-ii • II- 1 Bos. cV, i'llll. 
 
 termediate port, mto which the captam was obliged to 474. 
 put in distress, it was rotten and stinking, so that the 
 government prohibiied the landing it, and it was, 
 therefore, thrown overboard. The ship also was so 
 much damaged as to be unable to proceed upon the 
 voyage, and was sold. When this case came before 
 the court. Lord jUvanley said, ' If I understand the 
 policy, as restrained by the memoraiidum, the under- 
 writer agrees, that all commodities shall arrive safe at 
 the port of destination, notwitlistanding the })erils in- 
 sured against, but that he will not be liable to ])ay for 
 any partial loss on fish, or the other articles contaiiu^d 
 in the memorandum, because those aiticles being 
 liable to deterioration from many circumstances, in- 
 dependent of the perils insured against, he would 
 continually be harassed with claims for i)artial loss, 
 alleged to have arisen from the ])erils mentioned in 
 the policy. Unless, therefore, the consequeiKM! of 
 the damage sustained be the total loss of the com- 
 modity, the underwriter does not agree to be an-
 
 430 Of the Memorandum. — Benecke. 
 
 swerable ; but if the commodity be totally lost to 
 the assured, he undertakes to pay. It" this be not 
 the meanino; of the memorandum it ou2;ht to have 
 been said, that the underwriters would not be an- 
 swerable, unless the commodities enumerated actu- 
 ally went to the bottom. The question is, — What 
 is a total loss ? . . . Here it is found that the neces- 
 sity of throwing tlie carjio overboard arose from sea- 
 water, shipped during the \oyao:e ; and that the com- 
 ? modity was in such a state, that it could not be suf- 
 
 fered to remain on board, consistently with the 
 health of the crew. In consequence of this neces- 
 sity, the commodity 'was annihilated by being thrown 
 overboard. — Had it not been so annihilated, it 
 would have been annihilated by putrefaction : and is 
 it not as much lost to the assured, by being thrown 
 overboard, as if the captain had waited until it had 
 \ arrived at complete putrefaction ? The case of 
 Cockinsr v. Frazer was the onlv thing which raised 
 any doubt in my mind, and it is certainly a very 
 strong case. But the authority of that case is much 
 shaken by the observation of Lord Kemjon upon it 
 in Burnett v. Kensington. I suspect that the words 
 ' of no value,' applied to the cargo in the case of 
 Cock. V. Fr. are somewhat too large, and that the 
 fact was, not that the cargo was in such a state as 
 to make it impossible to preserve it, but that it was 
 so much damaged as to be no longer valuable to the 
 owners, because it was not worth carrying to the 
 port of destination. Lord Kenyon, speaking of Cock. 
 V, Fr., says, that he cannot subscribe to the opinion 
 there given, that, ' if the commodity specifically re- 
 main, the underwriter is discharged.' I think my- 
 self, therefore, at liberty to consider the case of 
 Cock V. Fr. as something less strong than it appears 
 to be. The question is, whether the loss which has 
 happened be not as much a total loss as if the waves 
 had carried the cargo overboard, or as if it had been
 
 Of the Memorandum. 43 1 
 
 directly prevented from arriving at the port of desti- 
 nation, by some of the perils insured against? I 
 never have understood that the underwriters insure 
 iish against no perils, which do not end in a total 
 annihilation of the commodity,' &c. — The other 
 judges concurred, and there was judgment for the 
 plaintiff. 
 
 A cargo of corn was insured free from particular Anderson v. 
 average. The ship was stranded upon her voyage, rifasj'sd.tnd 
 and there was a submersion of the cargo at high ^^ ^^^t, 5C3. 
 water for nearly a month. The assured might have 
 abandoned while the corn remained under water, yet 
 as it was afterwards saved, though damaged, and re- 
 stored, it was held not to be a total loss, there having 
 been no abandonment in time. 
 
 A quantity of flax, valued at £400, was insured ^JJ^JJ^''" 
 from London to Exeter, w arranted free of particular 559.' ' 
 
 average. The ship was wrecked on the coast of 
 Sussex ; about one sixth of the flax came on shore 
 loose and wet, and was sold for £11 net; the re- 
 mainder was entirely lost. — As there had been no 
 abandonment, it was decided that the plaintiff was 
 entitled to recover, as for a total loss, the value of 
 that part which was in fact totally lost ; and that 
 he was not entitled to recover for that part which 
 continued to subsist in specie, though deteriorated in 
 value. 
 
 Tobacco and sugar were insured at and from He- Tiiompsnn v. 
 ligoland to London, free from ])articular average. Asriu'East, 
 The ship was completely wrecked oi^ Heligoland, but 2i4. 
 the goods were afterwards got on shore in a very 
 damaged and unprofitable state ; the sugars being 
 mostly washed out of the hogsheads, and the to- 
 bacco quite spoiled by the sea-water. Tin; assincd 
 gave immediate notice of abandonment. — Tliis was 
 not considered a total loss. Lord Ellndwroitgli, 
 Chief Justice, said : — 'All the goods were got on 
 shore and saved, though in a damaged state. . . We
 
 432 Of the Memorandum. — Benecke. 
 
 can only look to the time when the loss happened? 
 and the goods were landed, and then it was not a 
 total loss, however unprohtable they might after- 
 wards be.' 
 Hedbero- V. Fifty -four ho^sheads of su^ar were insured free 
 
 Taunri54 ^^^^^^ particular average. The ship was stranded and 
 all the packages came on shore with a small quantity 
 of sugar remaining in each, so that of 6480 loaves, 
 78 only were saved dry and 45 wet. — The jury 
 found for the defendant, (though recommended by 
 Lord Chief Justice Gibbs, to find for the plaintiff, 
 subject to the opinion of the court, whether this was 
 a total or a partial loss ?) and the court refused a 
 rule for a new trial. 
 Giennie v. Ricc, iusurcd frcc from particular average, was 
 
 00^2 M^& s J^^terially damaged by the ship being wrecked with- 
 371. in the port of delivery, but came to the hands of the 
 
 consignees, and produced only £972, and the freight 
 of it amounted to £1762. The court considered this 
 as a particular average only. 
 
 \/ I From all these decisions it appears without con- 
 
 I tradiction, that when goods warranted ' free of par- 
 = ticular average,' (or ' free of particular average un- 
 1 less the ship be stranded,' and where no stranding 
 takes place) are saved, so as to remain in specie in 
 J the hands of the assured, and are of some value, 
 
 \J however small, even much less than the freight, this 
 
 is only a particular average, and no abandonment 
 can take place. And if part of the goods be wholly 
 lost and another part saved, that part which is wholly 
 lost is considered a total loss upon the underwriter, 
 even without abandonment, and the loss on the part 
 specifically remaining in the hands of the assured, 
 however small its value may be, is a particular av- 
 erage, unless an abandonment be made while the 
 loss continues in its nature total. — But if the goods, 
 although they specifically remain, be of no v^alue
 
 Of the Memorandum, 433 
 
 whatever to the assured, it is a question whether tliis 
 be or be not a total loss at the charge of the under- 
 writers ? 
 
 Mr Justice Park^ endeavours to reconcile the p tui cd. p. 
 cases of Cocking v. Frazer, and Dijson v. Rowcroft, i^^- 
 by observing, that in the former there was no dis- 
 ability of the ship to proceed to her destination, but 
 that she did not proceed, because the cargo was of 
 710 value through perils of the sea, so that this was a 
 voluntary and not a compulsory abandonment of the 
 voyage ; whereas in the latter the ship was unable 
 to proceed, which circumstance created a total loss 
 of the voyage. — If this distinction were the true 
 cause of decision in Dijson v. Rower oft, the rule 
 would then simply be : if goods of the aboAC de- 
 scription arrive at their destination, or might have 
 been forwarded to that place, but for the damage 
 sustained, it is a particular average at the charge of 
 the assured ; but if the goods cannot be forwarded 
 because the ship is WTCcked and no other to be had, 
 or because the voyage is lost, then it is a total loss 
 upon the underwriter, let the state of the commodity 
 be what it will. The goods would then, as to the 
 question respecting a total loss, be always considered 
 as having remained sound ; and goods arriving at 
 their destination in an entirely useless state, :uid 
 goods not being forwarded to their destination on ac- 
 count of being already rendered useless by accidents 
 of the sea, exempted from the obligation of the un- 
 derwriter, w^ould then, very consistently be treated 
 in the same manner. 
 
 But it appears quite clear to me, lliat Lord .^Iran- 
 %'.9 judgment, m Dyson \. Rowcroft, wii^ not loiiiHi- 
 cd upon the circumstance of the voyage being lost. 
 His Lordship is most undoubtedly of opinion that 
 where the goods, although they remain spccilH'Mlly, 
 are rendered literally and absolutely worthless by 
 sea damage, the underwriter is answerable : he ob- 
 55
 
 434 Of the Memorandum. — Benecke. 
 
 serves, that by the chxumstance of the goods being 
 necessarily thrown overboard, they were as com- 
 pletely lost to the assured as if they had been an- 
 nihilated by putrefaction ; and he endeavours to dis- 
 tinguish this case from Cocking v. Frazer, by sup- 
 posing the words ' of no value' applied to that case, 
 to be somewhat too large, which implies that the 
 cargo in that case was still of some value, though it 
 might not be worth carrying to the port of destina- 
 tion. No mention is made by him of the loss of 
 the voyage, nor does it appear that no other vessel 
 was to be had, which might have carried the cargo 
 to its destination, had it remained sound. — And in 
 Cologcm V. London Assurance Company^ Lord El- 
 lenhorough and the present Lord Chief Justice Ab- 
 bott consider the opinion of Lord Mcmsjield, in 
 Cocking V. Frazer, and that of Lord Mvanley, in 
 Dyson v. Roivcroft, as opposed to each other. It 
 being argued (as to the 585 bushels of wheat which 
 were rendered useless by sea-water and thrown 
 overboard by order of the magistrates) that when 
 the commodity remains in specie, though rendered 
 of no value by a peril insured against, according to 
 Cocking V. Frazer, a total loss cannot attach, Lord 
 Ellenborough said, ' as to this point, if it were ma- 
 terial, I should incline to the opinion of Lord Al- 
 vcmley, in Dyson v. Roivcroft, in preference to that 
 of Lord Mansfield, in Cocking v. Frazer. Con- 
 sidering the contract of insurance as a contract of 
 indemnity, it surely cannot be less a total loss be- 
 cause the commodity subsists in specie, if it subsist 
 only in the form of a nuisance. (1) There is a total 
 loss of the thing, if, by any of the perils insured 
 against, it is rendered of no use whatever ; although 
 
 (1) In Thompson v. Royal Exch. Ass. (above, p. 431,) the 
 tobacco also subsisted in the form of a nuisance. But it seems 
 that it was not so at the time it was landed.
 
 Of the Memorandum. 435 
 
 it may not be entirely annihilated.' And Lord 
 Chief Justice Abbott said, ' If it were necessary to 
 offer any opinion on this point, I should strongly 
 incline to the conclusion, that this was a total loss of 
 part.'' 
 
 The opinion now prevalent on this subject then 
 appears to be, that when articles of the above de- 
 scription, by sea-damage or any other peril insured 
 against, are rendered cf no value, although they con- 
 tinue to subsist in specie, this is a total loss at the 
 charge of the underwriter. (1) And I presume that 
 the liability of the underwriter would be the same, 
 if the goods arrive in that state at the place of their 
 destination, for the arguments of Lord Alimnley are 
 equally applicable to that case. It is true that 
 Mason v. Skurray is against it, for there the evi- 
 dence was in general terms and without reference to 
 the small value of the cargo. But it is not more 
 against it, than Lord MansfieWs opinion in Cocking 
 V. Frazer, is against Lord Alvanleyh in Dyson v. 
 Rowcroft. In the other cases, where the goods ar- 
 rived at their destination (M^ Andrews v. Vaughan, 
 and Glennie v. Loiidon Jlssurance Company) the 
 cargo was of some value, and in the latter Lord 
 Ellenborough expressly says, ' It api)ears that the 
 rice, which is said to be totally lost, produced £972. 
 Assuming it to have produced nine teinlis less than 
 its value, that will not make it a total loss.' Which 
 seems to imply that if it had i)roduccd nothing, thai 
 would have made it a total loss. ^ 
 
 It deserves to be noticed here, that the French 
 
 ■ (1) But what is the mcainng of tlic expression ' of n.. 
 value?' Suppose a quantity of fisli, vahied at tfOO fo l.c 
 entirely rotten. If it can be sold for £1 to servo as niauurc, 
 will this be a value, so as to exonerate the underwriter . In 
 this respect it would be better to fix a certain poreentaKC as 
 in the French law, as the criterion of the habdity nl tli. mi, 
 dcrwritcrs.
 
 436 
 
 Of the Memorandum.^ — Benecke. 
 
 «• Code (le 
 commerce, 
 § 4U'J. 
 
 ' Emer. 
 I. GU4. 
 
 law, with respect to the clause ' free from average,' 
 is extremely different from the English. That clause 
 exonerates the underwriter from general as well as 
 particular average, except in cases where abandon- 
 ment is allowed ; and in those cases the assured is 
 at liberty either to elect abandonment or to claim as 
 for an average loss/ In cases of principal misfor- 
 tunes, therefore, (like Anderson v. Royal Exchange 
 Ass. Co., Davij v. Milford, Thompson v. Royal Ex. 
 Ass. Co., Hedberg v. Pearson,) the assured might 
 have abandoned in France. Formerly the under- 
 writers w^re exempt by the clause from anv aver- 
 age, however considerable ;^ but at present, as a loss 
 or deterioration of 15 per cent of the thing insured 
 entitles the assured to abandon, the underwriters 
 upon goods insured with the clause become liable to 
 such loss, the same as if the insurance had been 
 without limitation. The object and utility of this 
 regulation is obvious : only it ought to have been 
 determined, how the loss is to be calculated, whe- 
 ther upon the gross or net proceeds, and whether 
 with or without reference to the value in the policy ; 
 and the assured ought not to be allowed to throw 
 the loss of freight upon the underwriter on the 
 goods, but to claim in such cases as for an average 
 loss only, (a) 
 
 (a) The preceding pages from 435 to 436, are brought into 
 this chapter from Mr Benecke's chapter on Total Loss and 
 Abandonment. 
 
 Since the pnbUcation of Mr Benecke's work, a case has 
 occurred in Enghmd under a pohcy on currants, in whicli it 
 was hekl that though the article remained in specie, yet so 
 damaged by perils of" the seas as not to be worth carrying on 
 to the port of destination, it was a total loss not merely of the 
 voyage, 'but of the thing insured.' Parry v. Aberdein, 9 B. 
 & C. 411. 17 Sarg. &. Lowb. 408. A decision, similar in 
 principle, was given in England in respect to a claim for a 
 loss of a part of a cargo of corn that was thrown overboard at 
 the island of Bcrnuula by order of the government there, in 
 respect to which Mr Chief Justice Abbott, afterwards Lord
 
 Of the Memorandum. 437 
 
 The assured having thus an undoubted right to 
 claim as for a total loss of that part of the goods 
 
 Tenterden, said, ' I should strongly incline to the conclusion 
 that it was a total loss of a part.' Cologau v. Lond. Ass. Co., 
 5 M. & S. 456. 2 Phil. Ins. c. 18, No. 13. 
 
 In a case that occurred in New York, the jury were told 
 in regard to a loss upon corn that was so much damaged as 
 to become putrid, that if it was so damaged as to be ' of no 
 value as nutriment for man,' the underwriters were liable for 
 a total loss. But this opinion was overruled by the court, 
 who decided that ' so long as the corn ])liysically existed, 
 there could not be a total loss' on account of the damage 
 merely, and ' although it was good for nothing the insurers 
 Avere not liable.' Neilson v. Col. Ins. Co., 3 Caines' 11. 108. 
 1 Phil. Ins. 488. The same doctrine in effect was held in 
 another case, in the same state. Saltus v. Ocean Ins. Co., 14 
 Johnson's R. 139. 1 Phil. Ins. 488. In Buchanan v. The 
 Ocean Ins. Co., 6 Cowen, 318, decided in the same state, 
 an opinion is intimated that as long as any of the subject phy- 
 sically remains, if the voyage can be performed, no loss can 
 be recovered on articles insured free of average. In a case 
 decided in the same court, however, at about the same time 
 with the preceding on a cargo of wheat insured free of aver- 
 age from N. Carolina to New York, where the vessel was run 
 ashore and the wheat was so mixed with sand as to sell for a 
 trifle, and could not be carried on in the same vessel, and 
 under the circumstances it was not considered to be the duty 
 of the master to procure another, the underwriters were held 
 to be liable for the loss. Treadwell v. Union Ins. Co., (» 
 Cowen, 270. 2 Phil. Ins. c. 18, No. 10. 
 
 In another case before the Supreme Court of Errors in 
 New York, in respect to hides put on board of a lighter to bo 
 landed from the shi]) in the harbour of New York, in which 
 the lighter, with the hides on board, was^unk, and tlie ligliler- 
 load Ihus totally lost, being only a part of the shiiinieut in- 
 sured, the underwriters were held to be liable for this as a 
 total loss of a part of a memorandum article. Wadsworth v. 
 Pacific Ins. Co., 2 Phil. Ins. c. 18, No. IG. 
 
 But as far as this question has come under the considera- 
 tion of the courts of the United States, the decisions liavc 
 been adverse to tlic claim of the assured for a total loss ol 
 part of a shipment insured free of average. It was lield that a 
 loss of over half of a cargo of corncoidd not be recovered (or. 
 Morean v. United States Ins. Co., 3 Wash. C. (-, II. 2.'">r.. 
 I Wheat. 219. 1 Phil. Ins. 490, and so it was held by Air 
 Justice Story, that a loss of a part of the shipment of fruit
 
 438 Of the Memorandum. — Benecke. 
 
 which is entirely lost, it follows that he cannot con- 
 sider such total loss of part as a particular average, 
 if this should be more to his advantage. For in- 
 stance, if 20 hogsheads of sugar (all of the same 
 quantity and quality) be valued £500 
 
 and two are totally lost, the underwriter will pay 50 
 
 and the valuation of the remaining 18 will be 
 reduced to 450 
 
 If the 18 are slightly damaged, and would have pro- 
 duced, if sound, £540 
 but in the damaged state produce 520 
 
 loss 20 
 
 the calculation will be as follows : — If 540/ lose 
 20/, then 450/ lose 16/, 13^, 8f/ ; which loss being 
 below 5 per cent, the assured will have no claim for 
 particular average. He cannot be admitted to say, 
 20 hogsheads, if sound, would have produced £600 
 1 8 have produced 520 
 
 loss 80 
 
 was not recoverable a<^ainst the underwriters. Humphrey & 
 al. V. Union Ins. Co., 3 Mason, 429. A decision has also been 
 given in Louisiana against the claim of the assured on a cargo 
 of mules insured free of average, to recover for a total loss of 
 a part of them. Brook v. Louisiana Ins. Co., 4 Martin N. S. 
 640. 
 
 These cases present some diversity of decision, and are 
 quite irreconcilable upon any principle. It is not easy to 
 see how the total loss of a part of the subject insured is any 
 other than a partial loss or particular average, unless the 
 doctrine of constructive total loss is applicable to a loss on a 
 subject insured free of average ; and that it is not so applica- 
 ble has been held in diverse cases. Thus on a policy on pro- 
 fits insured free of average, it was held that a loss of over 
 fifty per cent of the subject on which the profits were to arise 
 could not be recovered, though on the ordinary principle 
 adopted by the same court, this was a constructive total loss. 
 Wain V. Thompson, 9 Serg. & R. 115. 2 Phil. Ins. c 18, 
 No. 18.
 
 Of the Memorandum. 439 
 
 If 600/ lose 80/, then 500/ will lose QQl, 135, 8rf, 
 which is 13/, 65, 8^/, per cent; for the loss of the 
 two hogsheads is not an average loss, but a total loss 
 of part. 
 
 In order to render the warranty ' free from aver- clause < to 
 age under 3 or 5 per cent' less injurious to the as- !)T/each"wck- 
 sured in the case of single packages of a quantity of ''S*^'' '■^c- 
 goods being damaged, it has become usual to insert 
 in the policies the following or similar clauses : on 
 colonial produce, of different descriptions ' to pay 
 average on each species of goods ;' on manufactured 
 goods ' to pay average on each package ;' on sugar 
 and coffee, ' to pay average on every ten, fifteen, 
 twenty hogsheads or bags, succeeding numbers,' &c. 
 The particular average is then paid upon each spe- 
 cies, each package, &c, as if it had been separately 
 insured. Thus, if of six cases of manufactured 
 goods, valued at 100/ each, and insured with the 
 clause ' to pay average on each case,' one be dam- 
 aged 3 per cent, that loss may be claimed, and the 
 underwriters will have to pay one half per cent. 
 
 But supposing 5 of the chests to be damaged 2 
 per cent, and one 8 per cent, so that the underwriter 
 would be liable if no such clause had been insertcxl, 
 will he still be liable for the whole loss, not\\ itli- 
 standing the clause, or will he have to pay the dam- 
 age on the last chest only ? — If the clause be liter- 
 ally construed, especially if the words ' as if scj)- 
 arate interests, separately insured,' be added, the 
 underwriter will be liable only for tlie chest, tlie 
 damage of which exceeds 3 per cent : for if m l;ict 
 each chest had been separately insured, it is clear 
 that he could not have been c;ill(;d upon for the dam- 
 age on the fnst five policies. And even wlicii 1 lie 
 clause is without that addition the und(uvvriter nniilit 
 say : ' you have dei)arted from the general rule l»y 
 inserting a clause, which in most cases will operate
 
 440 Of the Memorandum. — Beiiecke. 
 
 in your favour, and in some against you, but it is not 
 
 understood that it shall be in your favour under all 
 
 circumstances.' — The clause, however, has received 
 
 Hagedorn v. a liberal construction in favour of the assured. — In 
 
 Whitmore. 1 i i i /. t . -, 
 
 starkie, 157. ^ casc whcrc Several packages oi hnens were insured, 
 with a stipulation ' to pay average separately on each 
 particular package,' and some were damaged and 
 others not ; and where the loss was 22 per cent, on 
 the whole amount. Lord EUenboroiigh held, that the 
 clause was for the benefit of the assured, and that, 
 though some entire packages were uninjured, they 
 were still to be included in the averasfe. 
 
 This decision, however, must not be extended be- 
 yond the case then before the court, which was an 
 , insurance on several packages of goods of the same 
 
 description^ and it must not be inferred, which is very 
 essential to observe, that if several articles are insur- 
 ed in the same policy, with a clause ' to pay aver- 
 age on each species of goods,' and the damage on 
 the different articles amounts, on the whole, but not 
 on each species, to three or five per cent, the under- 
 writer shall be liable to pay the whole damage. For 
 whenever it occurs, that of two species of goods, 
 for instance, insured free from particular average 
 under five per cent, the damage, if calculated upon 
 the whole, amounts to five per cent or more ; and, 
 if calculated upon each article separately, amounts 
 to less than five per cent upon one of them, it is 
 clear that it must amount to more than five per cent 
 upon the other; and consequently, that the two 
 articles are deteriorated in a different degree. But 
 
 t See p. 354. it has been shown above,' that under such circum- 
 stances, if the loss be adjusted upon the whole of 
 the goods (except when the state of the market is 
 the same as to both articles, which will seldom take 
 place) the underwriter will be involved in the state 
 of the market, which ^\■ould be contrary to law ; so 
 that, if two or more articles arc insured in one poli-
 
 Of the Memorandum. 441 
 
 icy, whether or not there be a clause ' to pay aver- 
 age on each species,' the adjustment must be made 
 separately upon every article, and the underwriter is 
 responsible for the article, the damage of ^\hich 
 amounts to the stipulated percentage, but has noth- 
 ing to pay upon the article, the damage of which, 
 taken by itself, amounts to less than tliat jjcrcent- 
 age. {a) 
 
 When a quantity of bags of coffee. Sec, are insur- 
 ed with the clause ' to pay average on every ten, 
 &c, bags, succeeding numbers,' and there arc no 
 numbers, it is usual to disregard the clause entirely, 
 and to pay the average only if it amount to the stip- 
 
 (a) In regard to the amount or quantity on mIucIi the ex- On what 
 ceptiou of average is to be computed, Magens, Essay on Ins. quantity or 
 § 61, thinks it should be computed on the number of boxes, ^'""""t the 
 bales, or parcels damaged. That is, if a hundred bales are in- to be'comput- 
 sured free of average under five per cent, and ten are dam- ed. 
 aged to an amount exceeding that rate, he thinks the assured 
 is entitled to recover for the loss. But this doctrine was 
 quite opposed to the practice in his own time, and the current 
 of practice and decisions has ever since been against the right 
 to recover in such case, unless the ten bales are valued sep- 
 arately. Ocean Ins. Co. v. Covington, 3 Conn. R. 357. 2 
 Phil. Ins. ch. 18, No. 20. It would be quite anomalous to al- 
 low the assured to compute the loss on the whole, or any jiart 
 of the quantity shipped as might be for his own interest, and 
 if he has not this election, he must be limited to one of the 
 two modes, that is, he must compute on the whole quantity of 
 the articles shipped that is subject to the exfe])tion, or only 
 on certain parcels of it. Now his right to compute the ex- 
 ception on the whole quantity is too well established to be 
 shaken ; he therefore, has not the right to compute it on a 
 part, unless he stipulates for it in the policy, or, (which is con- 
 sidered in eftect such a stipulation,) values in parcels. 
 
 It has been held in Massachusetts, that the premium is not Prrminm in to 
 to be included in the value of the subject on which tl.e excep- |;;;p;|;";'"'„|;"f, 
 tion is estimated. For instance, if a ship is insured valued at j,,^,^,,^. ^[[J^_ 
 three thousand dollars including premium, free of average iio„. 
 under five per cent, if a particular average amounts to five 
 per cent of the value, after deducting the amount of the pre- 
 mium from the three thousand dollars, it is recoverable. 
 Brooks v. Oriental Ins. Co., 7 Pick. 259. —Ed. 
 56
 
 442 Of the Memorandum. — Benecke. 
 
 ulated percentage upon the whole quantity. But 
 this is not correct. If, for instance, twenty bags, 
 valued 5/ each, are insured free from five per cent, 
 to pay average on every ten bags, succeeding num- 
 bers, ten are damaged, 85 each, and ten sound, it is 
 possible that five damaged and five sound bags be- 
 longed to each of the two tens, in which case the 
 underwriter would not be liable. But it is also pos- 
 sible, that all the damaged bags belonged to one set, 
 and all the sound to the other, and then the under- 
 writer would be liable to pay the whole damage of 
 4/. In cases of this description, a just medium ought 
 to be taken, according to the doctrine of chances. (1) 
 If the number of packages, insured with the clause 
 * to pay average on each ten, fifteen, &c, packages,' 
 is not a multiple of the number upon each of which 
 average is to be paid ; for instance, if sixty-five 
 
 (1) In the above easy example the 20 bags can be arranged 
 in the following manner : — 
 
 Loss for which the underwriter 
 
 Damaged. 
 
 Sound. 
 
 is not liable. 
 
 is liable. 
 
 Bags. 
 
 Bags. 
 
 Shillings. 
 
 Shillings. 
 
 VI 
 
 
 
 
 
 80 
 
 10 
 
 
 
 
 
 i 9 
 1 
 
 1 
 
 
 
 72 
 
 9 
 
 8 
 
 
 
 [I 
 
 2 
 
 
 
 64 
 
 8 
 
 16 
 
 
 
 [1 
 
 3 
 
 
 
 56 
 
 7 
 
 24 
 
 
 
 W 
 
 4 
 
 48 
 
 
 
 6 
 
 32 
 
 
 
 u 
 
 5 
 
 40 
 
 
 
 5 
 
 40 
 
 
 
 272 
 
 and as the probability for each of these six cases is the same, 
 
 272 
 the underwriter ought to pay -g- = 455^. 4??. 
 
 The calculation becomes more troublesome when the num- 
 ber of bags is greater, and the bags damaged in different de- 
 grees, but still the justness of the rule cannot be denied.
 
 Of the Memorandum. 443 
 
 chests of sugar are insured with the clause, ' to pay 
 average on each ten chests, succeeding numbers,' it 
 is necessary to add, ' and on the last (5) chests,' for 
 otherwise a damage upon the incomplete set cannot 
 be claimed, unless it would amount to the stipulated 
 percentage, supposing the set to be complete, and all 
 the wanting numbers undamaged. 
 
 The memorandum contains no proviso respecting Breakage, 
 breakage and leakage. It is clear that losses of this ^'-''^^''se- 
 kind cannot affect the underwriter, if they are attri- 
 butable to the nature of the commodity, or to an in- 
 herent defect. According to the custom at Lloyd's, 
 the underwriters are liable for breakage and leakage 
 only, if the vessel struck the ground with such vio- 
 lence as to derange her stowage. Whenever a loss 
 for leakage is claimed in such cases, the ordinary 
 leakage to which the article would have been sub- 
 ject, without such an event, ought to be deducted. 
 
 From the explanation before given of the effect of insufficiency 
 
 7 • •!! 1 •! +1 + +1 of the memo- 
 
 the memorandum, it will be easily seen, tnat tne randum. 
 purpose for which we must suppose it to have been 
 originally intended, viz. to put all kinds of merchan- 
 dize, as far as practicable, upon the same footing, 
 has by no means been attained by it. 
 
 Let us suppose an article liable to deterioration 
 and intrinsic decay, for instance flour, and another 
 article not subject to the same inconvenience, for 
 instance coffee'in casks, to be shipped on board the 
 same vessel, and exposed to the same degree oi dan- 
 ger. If, by the vessel springhig a leak, or shipjnng 
 seas, or by any other accident, not interrupin.g the 
 voyage, a moderate quantity of sea-water penetrates 
 into the hold, by which the coffee is not, or but 
 slightly, affected, the flour may become coiisu rral.ly 
 damaged and, especially in a long voyage, b(> lnal(>a 
 and rendered nearly useless. In cases of this nature, 
 the two articles cannot, with respect to the iksK ot
 
 444 Of the Memorandum. — Benecke. 
 
 the underwriter, be placed upon the same footing, 
 unless he be free from damage upon the flour, and 
 so far the effect of the memorandum is what it ought 
 to be. — But if, bj any serious accident the hold is 
 so filled with water, that either both articles are 
 nearly spoiled, or the coffee gets damaged fifty per 
 cent, aixl the flour ninety per cent, the desired 
 equality is entirely overturned, if, by the memoran- 
 dum, when the accident is called a stranding the 
 underwriter pays 90 per cent on the flour ; and, when 
 it is not called a stranding, he pays nothing upon 
 the flour, and in either case 50 per cent on the 
 coffee. Again, if, after a stranding, by which neither 
 the ship nor the ^oods were materially injured, an 
 accident, as first described, happens, whereby the 
 coffee is not dama2;ed at all, but the flour is damasked 
 20 per cent, the two articles cannot be put upon an 
 equal footino-, if the underw riter pays nothing on the 
 coffee, and 20 per cent on the flour. 
 Proposals foi Stranding, therefore, it is clear, is not the criterion 
 more'^eS'' "P^u wliicli the Underwriter's liability for damage 
 cious clause, ought to depend. This, indeed, has long been felt ; 
 the problem is, to substitute another, by which the 
 desired effect may be as nearly as possible attained, 
 and which, at the same time, is so characteristic as 
 not to admit of doubts or disputes. 
 
 The following observations, I hope, will be found 
 conducive to the end proposed, and deserving of far- 
 ther consideration. 
 
 All losses by peiils of the sea, properly so called, 
 may be divided into lour classes: 1. The ship is 
 injured either by the effect of wind and waves, or 
 by striking u})on the ground, or by being forced and 
 remaining stationary upon a fixed body, from w hich, 
 however, she is brought off by the exertions of her 
 own creW', or by the assistance of others : but after 
 the accident, she is still in a condition to proceed 
 upon her Aoyage, either a> ithout any repairs, or after
 
 Of the Memorandum. 445 
 
 some repairs which can be effected without unload- 
 ing her, (as after the loss of the bowsprit, of anchors 
 and cables, &c,) and delivers her cargo at the port 
 of destination, damaged by the effects of a leak 
 sprung, of seas shipped, &c. Or, 2. The ship be- 
 comes so injured, that she is obliged to make a port 
 in distress, and there to unload her cargo, which, if 
 it remain fit for that purpose, is forwarded cither by 
 the same vessel, after the necessary repairs, or by 
 other vessels, if the former cannot be repaired ; or if 
 too much damaged to be sent on, is sold at the in- 
 termediate port. It is immaterial whether the ship 
 became so injured, either by the effects of a storm, or 
 by striking upon a rock, an anchor, &c, or by being 
 run foul of, or by being stranded. Or, 3. The ves- 
 sel, by any of the above causes, becomes a wreck, 
 and the cargo, or part of it is saved from the wreck. 
 Or, 4. The ship and cargo are totally lost. 
 
 Now, according to the true meaning of the clause, 
 ' free from particular average,' the underwriter ought 
 to be exempt from every damage arising from an in- 
 jury or accident of the first of the above classes. 
 Therefore, whenever the vessel reaches the port ol 
 her destination in a fair condition (but not mIicji siie 
 arrives there, after a severe injury susiained near 
 that port, in a condition, which, at a greater distance 
 from the port of destination, would have oblii^cd Ikt 
 to go to an intermediate port, and there to unload, 
 and to undergo a thorough repair) the damage sus- 
 tained by goods insured with the clause, whatever 
 may be its extent, must not be at the charge ol' the 
 underwriter ; for in such cases there is no external 
 cause to which the deterioration can be ascribed 
 with greater probability than to the defective state 
 of the vessel, or to the internal quality of the goods, 
 with which the underwriter ouiiht to liave nothuig 
 to do. — But when the damage originates ni an 
 accident of the second class, i. e. when the vessel,
 
 446 Of the Memorandum. — Benecke. 
 
 being severely injured and leaky, goes to a port in 
 distress, and the goods must be sold there as being 
 unfit to be reshipped ; or, if not sold, arrive at the 
 place of destination, either by the same vessel, after 
 the repairs, or by another, in a damaged state, then 
 the underwriter ought to pay the loss, whatever was 
 the cause or denomination of the misfortune of the 
 vessel : for it is not the denomination but the extent 
 of the misfortune which ought to regulate the de- 
 cision, and it is much more natural in such cases 
 to ascribe the damage to the accident than to the 
 fault of the ship, or to the inherent quality of the 
 article. 
 
 But as the risk which the underwriter runs upon 
 goods of a perishable nature cannot be rendered 
 equal to that upon durable goods, unless he be free 
 from the intrinsic decay of the former, which, al- 
 though originating in external causes, yet does not 
 immediately proceed from them, — for instance, 
 when the goods landed undamaged at an intermedi- 
 ate port, decay during the repairs of the ship, or 
 during the time which necessarily elapses before 
 they can be sent on by another vessel — the under- 
 writer ought to be, according to the true intent of 
 the clause, free from the loss arising from such de- 
 terioration. 
 
 It is hardly necessary to add, that the damage aris- 
 ing from an accident of the third class must be borne 
 by the underwriter. 
 
 Thus, I think, the true purpose of the clause ' free 
 from damage, &c,' might, if not fully, at least in a 
 great measure, be attained. It is true, that the un- 
 derwriter, in case of an accident of the second class, 
 would sometimes be obliged to pay for more damage 
 upon goods of a perishable nature, than under simi- 
 lar circumstances he would have paid upon less 
 perishable goods ; but on the other hand he would, 
 in case of accidents of the first class, have to pay no
 
 Of the Memorandum. 447 
 
 loss at all upon perishable goods, where under the 
 same circumstances he would have to compensate 
 for a considerable damage, occasioned by the vessel's 
 springing a leak, &c, upon goods of a less perishable 
 nature. — If, however, experience, (which in mat- 
 ters of this description must be our principal guide,) 
 should show that insurances on perishable articles 
 still expose the underwriter more than those upon 
 other goods, the equality might undoubtedly be estab- 
 lished by liberating the underwriter from a certain 
 percentage, for instance from the first 10 per cent, 
 upon articles of the first description. 
 
 If the several accidents at sea were classified in 
 the above manner, and an exact line of distinction 
 drawn between the several classes, the clause might 
 be worded thus : ' free from all damage occasioned 
 by an accident of the first class, and free from all in- 
 ternal or other deterioration or decay, not originating 
 in external damage.' 
 
 This clause would exempt the underwriter, in 
 places where the assured is not allowed to abandon, 
 from the internal decay also in cases of detention 
 and unlawful seizure ; from which according to the 
 true meaning of the clause he ought to be exempt. 
 But in this country it would not have the same ef- 
 fect, because the assured is allowed to treat a de- 
 tention or unlawful seizure as a total loss, by aban- 
 doning his property. It is to be supposed, tliere- 
 fore, that in war times, detained neutral property 
 would sometimes be abandoned, which, but for the 
 perishable nature of the goods, would not have been 
 abandoned. This risk must either be guarded 
 against, in war times, by a separate stipulation, or it 
 must be paid for by an additional premium. 
 
 But the clause will protect the underwriter against 
 the perishable nature of the goods becoming a cnuse 
 of abandonment, in the case of a protraction of the
 
 448 
 
 Of the Memorandum. — Benecke. 
 
 Foreign laws 
 and usages 
 with respect 
 to the clause 
 ' free from 
 average,' «&c. 
 
 I Code de 
 commerce, 
 409. 
 
 voyage, (1) and thus he will be exempt from a great 
 risk from which, according to the nature of the con- 
 tract, he ought to be exempt. 
 
 The Memorandum is also defective with respect to 
 the enumeration of the articles warranted free from 
 average, or free from average under 5 per cent, &c. 
 A great many articles which are equally, and even 
 more liable to suffer materially from the effects of 
 sea- water than those mentioned in the memorandum, 
 have been entirely omitted ; and as the assured is 
 not obliged to name his goods in the policy, but may 
 insure them under the general denomination of mer- 
 chandize, it is evident that the underwriter may thus 
 be materially injured. It would be necessary, there- 
 fore, to classify the different articles, which although 
 not liable to intrinsic decay, w'ithout an external 
 damage, yet are more liable to be affected by sea- 
 damage than common articles, and to stipulate in the 
 clause, that in the event of accidents of the first class 
 the underwriter shall be free from damage under 10 
 per cent upon some ; from damage under 5 per cent 
 upon others, &c. 
 
 In France the clause ' free from average' exempts 
 the underwriter from all average, general as well as 
 particular, except in cases entitling the assured to 
 abandonment. In those cases the assured may 
 either elect to abandon or claim as for an average 
 loss." 
 
 Emerigon relates several decisions by which the 
 underwriters, in consequence of the clause, were not 
 
 (1) See the case of Hunt v. Roi/. Ex. 5 Ass., M. & S. 47 ; 
 wliere it appears, from Lord Ellenbnrongli''s observations, that 
 the assured woukl have been allowed to abandon, if the cargo 
 had been found to be in danger of being materially injured by 
 the delay.
 
 Of the Memorandum. 449 
 
 obliged to indemnify the assured for masts cut away 
 in a storm, goods thrown overboard to escape from 
 an enemy, &.c, where these sacrifices had produced 
 the desired effect, and consequently no sinistre majcur 
 had taken place. The pernicious tendency of this 
 clause is too obvious to require illustration. — In the 
 event of a principal misfortune the underwriter is 
 obliged to pay the loss, even if the thing insured be 
 saved and there be no abandonment. But if, in 
 such cases, the assured do not choose to abandon, 
 the underwriter pays only the loss occasioned by the 
 principal misfortune, and not the average loss m hich 
 may have occurred before. He does not pay the 
 expenses and damages incurred for the purpose of 
 averting a threatening loss, but only those incurred 
 in diminishing or repairing a loss which has already 
 taken place, and the consequences of which would 
 fall upon the underwriter. — In one case, however, 
 where a stranded vessel was saved by jettison, the 
 underwriters were condemned by the arbitrators to 
 pay for the goods thrown overboard, and the expenses 
 of bringing the vessel off, although even at that time 
 (by the 5th article of the declaration de 1779) the 
 assured was not allowed to abandon in the case of a 
 stranded vessel being saved.- j^' J^^^"^ 
 
 Most of the French policies exempt the imdcr- ^'§ oj & 45. 
 writer from all particular average only \\\)on certam 
 articles ; and from the first 15, 10, ice, i)er cent of 
 particular average and extra leakage, ui)om others, 
 except in cases of al)andonment. This nicihod ol 
 deducting a certain percentage, in cas(!S of particular 
 average, must needs have the effect of multipivmg 
 abandonments. — On the other hand, if the coiuhiioi. 
 is, that the whole dama-e shall hr paid il it ex- ..d 
 10 per cent, and that nothing shall be paid il it does 
 not, this may prevent the assured from using all en- 
 deavours to diminish the dama-c by drying the goods, 
 by separating the sound from the damn-cd part, .Vc, 
 57
 
 450 Of the Memorandum. — Benecke. 
 
 because this would sometimes turn to his own disad- 
 vantage ; for instance, if a loss of 1 1 per cent were 
 thus reduced to 9. 
 
 The clause ' free from average' is also much in 
 
 use in Italy ; it is contained, for many articles, in 
 
 the policies of Venice, Trieste, and several other 
 
 places, and is interpreted nearly in the same way as 
 
 ^ Baidassero- in Francc/ 
 
 Tit.7;iv,casi The poHcics of Hamburgh contain no printed 
 11, 14, 19. clause respecting goods liable to damage ; the clauses 
 usual in that place have been mentioned above, p. 
 418. The question as to the meaning of the term 
 stranded has been much agitated there, the same as 
 in this country. It appears from modern decisions 
 that a ship is said to have been stranded, when she 
 became stationary upon a strand, a rock, or a bank, 
 &c, and thereby damaged her cargo ; and it makes 
 no difference whether she was brought off, either by 
 the exertion of her own crew or by extraneous as- 
 sistance. In the case of a stranding the under- 
 writer is obliged to pay the damage, whether or not 
 it was occasioned by that accident. 
 
 In ^.^msterdam the usual clauses respecting perish- 
 able articles are the same as in Hamburgh ; the 
 adoption of the French Code has produced no alter- 
 ation in this respect, since, by an express stipulation 
 added to every policy, no abandonment can take 
 place, unless the thing insured be undoubtedly lost, 
 or every reasonable expectation of its recovery have 
 disappeared.
 
 INDEX. 
 
 ABATEMENT of 2 per cent on losses 18 
 how to cover interest in case of . 
 
 18, 19, n 
 
 ADJUSTMENT of Particular Average 
 
 on Goods, four modes 2117 
 
 on gross proceeds 329. 342 
 
 foreign 223. 271. 277, n 
 
 of General Average, at port of 
 
 departure 208. 268 
 
 whether binding 230, n 
 
 at port of destination 208. 268 
 
 at intermediate port 209.245. 269 
 
 AGGREGATE DAMAGE, whether 
 
 to be estimated under memorandum 426 
 Aggregate freight, whether it contri- 
 butes to general average 216. 264 
 ALL OTHER ARTICLES perishable 
 
 in their own nature in mem. 419, n 
 
 AMMUNITION, expended in an en- 
 gagement, as to contribution for 85. 250 
 ANCHORING in a dangerous place 116 
 Anchors, no deduction of a third from 
 
 376. 386 
 APPORTIONMENT of freight 
 
 216. 258. 264 
 ARREST 87. 157. 161 
 
 AUCTION DUTIES, «&c, on dam- 
 aged goods, as to particular average 
 ^ ^ 333.351.427; 
 
 as to memorandum 403. 426 
 
 AVERAGE. See Tabic of Conlmts 
 Average Bond 210 
 
 B 
 BALTIMORE MEMORANDUM 393, n 
 Barges, goods put into 65. 133. 249 
 
 Bartered aoods, value of 23, 24 
 
 BILGING 424, n 
 
 BOATS cut away 67.113 
 
 damaged and washed overboard 
 
 369. 382 
 
 BOATS, goods put into 65. 133. 249 
 
 Bond, Average 210 
 
 Bonded goods, adjustment of average 
 
 upon 308, n. 309, n.1?l5, n 
 
 Boston Memorandum 392, n 
 
 Bottomry Interest, insurance of should 
 
 not include premium 32 
 
 Bottomry 174. 195 
 
 BREAliAGE and Leakage as to Mem. 
 
 395. 443 
 
 CABLES crossed 111 
 
 cut 111 
 
 on deck 66.113 
 
 particularly exposed and lost 384 
 
 Cargo and freight, valued in a gross 
 
 sum 31, n 
 
 Cargo, valuation of, applies to full cargo 41 
 sale of part of 68. ifiO, 191 
 
 storing and reloading at port of 
 
 necessity 76. IIH. 425 
 
 contribution to general nvernee 
 
 2(l(). 238 
 CHARGES of Recovery, to be sUiled, 
 if intended to be covered by the 
 
 policy *^ " 
 
 now to be covered Iti, 17 
 
 at port of delivery, how to be 
 
 covered by Ibe policy 48 
 
 on sale of damaged goods 333. ;U>1 
 403. 427 
 and freight on goods, nu to dc- 
 duclinir them in pnrlicnlar 
 nverngr 2.-9.347 
 
 Charleston Mrmorandiim 3!I3, n 
 
 Charterer's Interest 3»i, n 
 
 COINS, foreign, ub to valuing 54 54, n 
 Collision U(> :i<'7. -'^3 
 
 Commissions, jmrt of value ll> 
 
 Commission for effecting policy, how to 
 cover 36
 
 452 
 
 INDEX. 
 
 Compromise, with belligerent 79 
 
 Consultation on jettison 64. 80. 102 
 
 Contribution, whether to be made if 
 
 peril not avoided 100. 105. 107. n 
 
 by the ship 211.252 
 
 by car^o 206. 238 
 
 on different values 243 
 
 by freight 215. 257 
 
 Convoy, slipping from cable to keep with 67 
 
 charges of 149 
 
 delay for 149 
 
 Copper sheathing, particular rule as to 
 
 374, n 
 Corn, fish, salt, fruit, flour, and seed, in 
 
 memorandum 396 
 
 Corn, includes beans and peas 419 
 
 Cost, is value in open policy 1. 32 
 
 CROWDING SAIL 114. 372. 3e2 
 
 CUTTING, act of, not necessary to 
 general average 110 
 
 D 
 
 DAMAGE by e.^cternal accidents, as to 
 general average 
 
 aggregate, whether to be esti- 
 mated in adjustment 
 subsequent to jettison 231 . 
 
 241 
 
 to ship by jettison 
 Damaged goods jettisoned 
 
 contribution by 
 Dor its. boats huno- upon 
 DECAY of goods'in port 
 Deck, goods carried upon 
 
 426 
 243 
 62. 104. 237 
 236 
 240 
 67. 113. 369. 382 
 132 
 210. 
 248 
 
 65. 113. 
 236. 
 
 Declaration of interest of assured 8 
 
 can only be made as intended by 
 policy 8 
 
 Deduction of third for new 167, n. 238. 
 
 374. 384 
 
 first voyage 374. 376. 385 
 
 Delay of voyage by storms, frost, &c, 137 
 
 Detention 87. 158. 161 
 
 Deterioration by qualities of the article 
 
 132. 240. 395. 417 
 
 DISCOUNT in sales 350 
 
 DUTIES, as to particular average 330. 333. 
 
 351. 403. 426 
 
 as to general average 208 
 
 EAST INDIA Company's Charter 
 Party, as to contribution 252 
 
 EMBARGO. See Detention. 
 
 ENGAGEMENT, damage in 85. 154. 371. 
 
 383 
 
 EVIDENCE of loss 374. 384 
 
 EXAMPLES of adjustments of par- 
 ticular average on goods 297. 345. 352. 
 
 354. 359 
 
 Exception of losses 392. 416 
 
 Exception on what value or quantity 
 computed ♦441 
 
 Exchange, as to fixing rate in policy 8. 54 
 loss by 79 
 
 Extra charges, auction charges, &c, on 
 sales of damaged goods 333. 351. 427 
 
 effect of mem. respecting 403.426 
 
 Extra hands, in case of leak 76 
 
 Expenditures for general average, to be 
 reimbursed at all events 74 
 
 FIGHT, damage in 85. 154. 383 
 
 Fire 91. 370 
 
 Fish, dry, is a memorandum article in 
 
 N.York 419, n. 
 
 Fish, pickled, subject to average in 
 
 New York 419, n 
 
 FLOATING stranded ship. See 
 
 Strandina- 75. 81. 138 
 
 FOREIGN ADJUSTMENT 
 
 Foreign coins, as to valuing 
 FRAUDULENT VALUATION 
 
 223. 271 
 
 277, n 
 
 54, 54, n 
 
 7. 39, 
 
 39, n. 55 
 
 Free people, as to contribution 251 
 
 Free from average under 3 or 5 per cent 
 
 397. 404 
 foreign laws as to this clause 448 
 Freight, its value in an open policy 10. 36 
 is only of goods actually on board 10 
 when interest in accrues 39, 40 
 
 valuation of, applies to full cargo 41 
 of goods jettisoned 74. 102. 234 
 
 of goods, how to cover 21 
 
 aggregate for successive passa- 
 ges, whether it contributes to 
 general average 216 
 
 lien for 216 
 
 apportionment of 216. 258. 264 
 
 not in Mem. of policy of Roy. 
 
 Exch. Ass., Co. 397 
 
 contributory value of 215. 255 
 
 particular average upon 391 
 
 contributory value of, in an ad- 
 justment at an intermediate 
 port 256 
 
 payable at port of destination, 
 
 loss upon 361 
 
 pro rata, contributes to general 
 average 209. 220 
 
 of goods landed before jettison 256 
 and charges, on goods, as to de- 
 ducting them in particular 
 average 289. 342 
 
 FUR-SKINS not included in skins in 
 New York Mem. 419, n 
 
 G 
 GENERAL AVERAGE. See Table of 
 Contents.
 
 INDEX. 
 
 453 
 
 GOODS, sold at intermediate port 68, 69. 
 
 190, 191 
 
 on deck, jettisoned 65. 113. 236. 248 
 
 contribute 210. 248 
 
 particular average upon. See Table 
 
 of Contents. 
 charges on sale of damaged 333. 351. 
 
 426 
 GRAIN, in American policies 392, n 
 
 H 
 HIDES, mem. article in policy of Roy. 
 
 Exch. Ass. Co. 418, n 
 
 Hiring extra hands to pump 76 
 
 HURTS, expense of curing 86. 154 
 
 HYPOTHECATION 79. 174 
 
 IMPLEMENTS of the ship damaged 382 
 INTERMEDIATE PORT, expenses 
 at 77.117.425 
 
 what value basis of contributing 
 
 at 245 
 
 goods sold at 68. 190. 245. 387 
 
 Internal decay of goods 132. 240. 395. 417 
 Interest on premium, how to cover 19 
 
 marine 79. 174 
 
 on advances 80, n. 169 
 
 Invoice value, is the amount of insura- 
 ble interest in an open policy 1. 33 
 case of goods having risen 34 
 when basis of contribution 207. 244 
 IRON WORK, third deducted from 386 
 
 J 
 JETTISON, consultation as to 64. 80 
 
 by slipping from cable or cut- 
 ting it m. 109 
 cutting away masts, sails, boats 
 
 ^ 66.109 
 
 subsequent wreck 67. 108 
 
 of goods on deck 64. 210. 236. 248 
 ship lost, goods saved contribute 65 
 damage in making 65, 66. 105 
 
 goods put into boat 65. 133. 349 
 
 whether probable subsequent 
 damage to goods jettisoned, is 
 to be considered 67, 67, n. 113 
 
 malicious or unnecessary 99 
 
 whether peril must be avoided 
 to give claim to contribution 
 
 65. 100. 105. 107, n 
 whether a particular article must 
 
 be selected 100 
 
 compensation for freight of goods 
 jetti-soned 74.102.234 
 
 Jetoels, &c, contribution by 206. 247 
 
 LEAK, sails, &c, cut up to stop 
 
 68 
 
 LEAK, to what cause to be attributed 383 
 Leakage and breakage as to Mem. 295. 443 
 Lee shore 114.372.3,-2 
 
 LIGHTNING 370 
 
 Lieri for freight 216 
 
 Lighters, goods put into 65. 133. 249 
 
 LLOYD'S, proof of usage there very 
 
 uncertain 4 n 
 
 LONDON ASS. CO., mem. in their ' 
 
 policies 418 n 
 
 LUGGAGE OF SEAMEN, and pas- 
 
 sengers, as to contribution by 206, n. 251 
 LYING TO, loss in 370. 382 
 
 M 
 MARINE INTEREST 79. 174 
 
 Market, saving, gaining, and losing 297 
 
 Master, his authority to sell goods 09 
 
 directions to him as to jettison 64. 81 
 
 .V«5^5 cut away 66.110 
 
 damage to 372. 3^2 
 
 MEMORANDUM, form of 392 
 
 origin and intention of 395. 419 
 
 insufficiency of 408. 443 
 
 as to quantity and value on 
 
 which to be computed 441, n 
 
 Merchandize, jewels, &c, subject to 
 contribution 2u8. 247 
 
 MISTAKE in valuation 39, 39, n. 55 
 
 MONEY raised abroad for purposes of 
 general average 107. 200 
 
 foreign, valuation of 8. 54 
 
 contribution by 206. 248 
 
 N 
 NECESSITY, port of See Intermediate 
 
 Port. 
 A'eg/igcnce, loss by 378 
 
 A'ct value is basis of contribution 221. 244 
 JVew York memorandum 393, n 
 
 O 
 
 OLD MATERIALS, proceeds of, h<.w_ 
 
 credited 37(>, n 
 
 ONE LOSS must be 3 per cent under 
 
 mem. 4(11.426 
 
 One subject only at risk, as tn niein. 4(12. 42t> 
 OPEN POLICY ON SHll',h<.w value 
 
 ascertained 32, 33, n, 36 
 
 0/jcnini: ruination 2. 4H. 53, n 
 
 OVER-VALUATION 7. 39, n 
 
 r 
 
 PAINTING, as to chnrt'iinr 375 
 
 not allowfd nl lluiiibiirtfh :»H6, n 
 
 Partial loss afVcctx condilioii/il return 
 
 of premium *^i "^ 
 
 Particular average. See Conlrntn. 
 Particular chargr^i, wliclhcr they muKt 
 
 amount to 3 per cent under nic-ni. I'l^
 
 464 
 
 INDEX. 
 
 Passengers as to contribution 206, n. 251 
 PETTY AVERAGE 56. 77. 93 
 
 PILOTAGE, into port of distress 75. 118 
 PLAGUE, as to general average 163 
 
 Plunder, as to general average 153. 371 
 
 POLICY, open and valued. See Contents. 
 written part controls printed 419 
 
 Port of necessity, in case of contrary 
 winds or to procure water 77 
 
 expenses of getting to port of 
 necessity 77, 77, n. 117 
 
 goods sold at 68. 245 387 
 
 adjustment at 208. 245. 269 
 
 PREMIUM, is part of value 14,15 
 
 as to including or excluding it in 
 valuation of ship and freight 30 
 conditional return of 28, n 
 
 as to insuring, covering repairs, 
 or bottomry or respondentia 
 interest 32 
 
 as to its being included in valua- 
 tion of goods 5, n 
 to be deducted before applying 
 
 exception 441 
 
 whether included in value in an 
 
 open policy in France 34 
 
 is not in Italy 35 
 
 on premium 33, 33, n 
 
 Press of sail to escape enemv or keep 
 
 off a lee-shore " 114. 372. 382 
 
 Profit, how to cover 21 
 
 what valuation of 21 , n 
 
 on goods sold by master 71 , 72, n. 193 
 loss upon 361. n 
 
 Proofs, of loss 373, 374. 384 
 
 of property, ' not to be requir- 
 ed,' is not a valuation 38, n 
 Proceeds of old materials, how credited 
 
 376, n 
 Provisions, consumption of, does not 
 affect the value of the ship in the 
 policy 23. 43 
 
 for Slaves, &c, or passengers, 
 whether included in value of 
 the ship 43, 44, 44, n 
 
 whether to be deducted from 
 
 freight in contribution 219. 256 n 
 
 to be contributed for 65. 87 
 
 and wacres, as to general averao-e 
 
 43. 60. 87. 112. 122. 128. n. 150. 
 
 161.219.250.253. 
 
 and icages in particular average 389 
 
 Q 
 
 QUARANTINE, as to general average 163 
 
 R 
 
 RANSOM 79. 152 
 
 Rats 374. 384 
 
 RECAPTURE, expenses of 78 
 
 RECAPTURE, freight contributes for 257 
 Reclaiming 79 
 
 Recovery, charges of how covered 
 
 16. 17. 35 
 Repairs, as to their affecting amount on 
 
 which insurers are liable 32, n 
 
 Repairs, insurance of expense of, should 
 
 include premium 32 
 
 temporary 123. 167 
 
 Respondentia. See Hypothecation. 
 Return of premium, for convoy and ar- 
 rival 28, n 
 if partial loss, should not be re- 
 turned on that proportion 28, n 
 as to computing 35 
 Rewards to seamen 91. 15G 
 RICE is a mem. article in policies of 
 
 Lond. Ass. Co. 418, n 
 
 Ringing, hanging over sides 67. Ill 
 
 ROYAL EXCH. ASS. CO. mem. in 
 
 their policies 418, n 
 
 Rohhery 132 
 
 RUNNING FOUL 146. 367. 383 
 
 SACRIFICED ARTICLES, value of 
 
 them included in contribution 254 
 
 Sails, ropes, &c, applied to extraordi- 
 nary use 68 
 hanging over side 67. Ill 
 blown away 110. 372. 382 
 let go to make ship right 112 
 damao-ed 372. 382 
 SaZcof pirtof cargo 68. 175, n. 181.245.387 
 profit on 71, 72, n. 193 
 of sound and damaged goods 333. 
 351. 426 
 Salt, does not include saltpetre in mem. 419 
 Saltpetre is a mem. article in policies of 
 Lond. Ass. Co. 418, n 
 not included in salt in mem. 419 
 Salvage for recapture 78. 154 
 charo-es 102. 141 
 loss^ 281.344 
 Sarsaparilla, not a root within mem. in 
 
 New York 419, n 
 
 Snvannah Memorandum 393, n 
 
 SCUDDING, damage in 370. 382 
 
 SEAMEN employed in repairs, whe- 
 ther to be paid by insurers 89, 89, n 
 rewards promised to tliem in 
 
 time of distress 91.156 
 
 's wages, as to contribution 2-51 
 
 SHEATHING, rule as to wear of 394. n 
 Ship, value in open policy 8. 36 
 
 may«have different value in dif- 
 ferent policies 9 
 usually valued 36 
 contributory value of 21 1 . 2.54
 
 INDEX. 
 
 455 
 
 Ship, particular average upon 365. 377 
 
 only at risk, as to average 402. 42tl 
 
 weakened by straining 383 
 
 and freight, valued in a gross sum 31 
 
 Short interest, how computed 35 
 
 SKINS, does not include fur-skins in 
 
 New York 419, n 
 
 Specie, contribution by 206. 248 
 
 STORES, consumed, effect as to value 
 and valuation 43 
 
 for slaves or passengers, whether 
 consumption of, affects value 
 of ship or cargo in the policy 
 
 43, 44, 44, n 
 jettisoned, contributed for 65 
 
 Storing and reloading cargo, expenses 
 
 of 76. 118. 425 
 
 Stranding 381 
 
 accidental 138. 366 
 
 voluntary 75. 81 . 143. 145, n 
 
 as to mem. 408. 410. 418, n 
 
 American policies 41'J, n 
 
 Strainina- and icorking 38o 
 
 SUCCESSIVE ports of lading and 
 discharge, as to changinor the value 
 of the goods in the same policy 25 
 
 losses, as to combining under 
 mem. 401. 426 
 
 TEMPORARY REPAIRS 123. 167 
 
 THIRD for new 167, n. 238. 384 
 
 TOBACCO, mem. article in policy of 
 
 Roy. Exch. Ass. Co. 418, n 
 
 Total loss of a part 353. 405 
 
 as to mem. 427 
 
 Towincr 167, n 
 
 TRANSHIPMENT, as to its affect- 
 ing the value of the goods in the 
 same policy 25 
 
 increase of freight 363 
 
 U 
 UNDERWRITERS, their liability for 
 general average 270 
 
 object to repairs 388, n 
 
 their remedy over, for damage 
 by collision 367 
 
 Undervaluation ^- 388 
 
 Unloading cargo of stranded ship 75 
 
 at intermediate port 76. 118. 425 
 
 UPPERWORKS of ship damaged 369. 382 
 USAGE, at Lloyd's, proof of, very un- 
 certain ^1 " 
 remark upon 224 
 
 VALUE, is market price in an open 
 policy ' • '^'^ 
 
 VALUE of ship not affected by wear 
 
 and tear 09 
 
 of ship in an open policy 8. 36 
 
 different in different policies 9. 12 
 effect of high or low valuation 9. 388 
 of freight 10. 36 
 
 of goods, in an open policy 13 
 
 in Hamburgh, Holland, France, 
 
 &c. 33. 34 
 
 Italy 35 
 
 of current articles 13 
 
 different in general average and 
 
 partial loss J3, n. 221 
 
 of goods entitled to drawback 13, n 
 of gocds not having a market 
 
 value 14 
 
 of goods in an open policy is 
 
 market price, instead of cost 34 
 of goods traiisliipped 25 
 
 of produce and cargo 24 
 
 where no rate of exchange 22 
 
 of bartered goods 23. 24 
 
 in the policy, and in contribu- 
 tion, different 221 
 to be declared 55, 55, n 
 what is basis of adjustment 242 
 ditlerent, in successive contribu- 
 tions 243 
 Valuation, origin of 3 
 objections to 6 
 specific or in the gross 6 
 high and low 7. 9. 9, n 
 fraudulent 7. 39. 55 
 by mistake 39. 55 
 defined 12 
 effect of 37. 40 
 in France 37. 45 
 Holland 46 
 Hamburgh, Italy. Spain, Prussia 47 
 in Sweden, and Denmark 48 
 of cargo 41 <'i7 
 freight is that of full cargo 1 1 .3(>, nil 
 rule same in U. S. 42, n 
 of ship, in case of stores and pro- 
 visions consumed 43 
 at so much the franc, &c 54 & n 
 of foreign currency 54 
 opening of 2. 48 
 different in different imlicics 44 
 as to including or excluding pre- 
 mium -^^ 
 may exceed actual value 39 
 of cargo, as to its beinjj made in 
 gross, or on each article wpa- 
 rntely 7. 54,54, n 
 or Ko much per pound 38, n 
 of gnnd.i, applies to intercut of 
 
 assured •^t " 
 
 of goods, HH lo ilH inrludinff pre- 
 
 rniiim ,l4, II
 
 456 
 
 INDEX. 
 
 Valuation to cover charges at port of 
 delivery 48 
 
 of freight, may exceed gross 
 
 amount 30. 36, n 
 
 of ship and freight in one gross 
 
 sum 31 
 
 of ship and freight, how to be 
 
 made to secure indemnity 28, 29 
 does not dispense with proof that 
 interest was at risk 12, n 
 
 VOLUNTARY STRANDING 75.81.143. 
 
 145, n 
 
 W 
 WAGES to be deducted from freight 
 in contribution 218 
 
 WAGES of seamen, as to contribution 
 
 87.251 
 advanced, as to contribution 255 
 
 and provisions in respect to gen- 
 eral and particular average 43. 87, 
 112. 122. 128, n. 130. 150. 158. 161. 
 219. 2.50. 253. 389. 
 WEIGHT, loss in 353 
 
 Wear and tear, does not aflFect value of 
 the ship in the policy 29 
 
 difficult to distinguish from loss 
 365. 369. 372, n. 374. 378, n 384 
 WORMS 274. 384 
 
 Wounds, expense of curing 86. 154 
 
 WRITTEN PART of policy, controls 
 printed 419, n 
 
 ^
 
 UNIVERSITY OF CAUFORNIA LIBRARY 
 
 Los Angeles 
 
 This book is DUE on the last date stamped below. 
 
 FEB 16 1984 
 
 PSD 1916 8/77
 
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