HAND-BO 3 5556 031 191836
OP
1AR1NE INSURANCE
AND
A y E R A G E.
BY FRANCIS B. DIXON,
a ^ e
AUTHOR OF
N ABRIDGMENT OF THE MARITIME LAW," ALSO, OF " THE LAW OF
SHIPPING, AND MERCHANTS' AND SHIP MASTERS' GUIDE,
NEW YORK;
PUBLISHED BY HENRY SPEAR,
133 Pearl and 86 Beaver Streets.
1862.
Entered according to Act of Congress, in tlie year 1862,
BY HENRY SPEAR,
In the Clerk's Office for the Southern District of the State of New York.,
BY PERMISSION,
THIS VOLUME
is
RESPECTFULLY DEDICATED
TO
THE BOARD OF UNDERWRITERS
OF
NEW YORK,
BY
THEIR OBLIGED AND OBEDIENT SERVANT,
THE AUTHOR.
PREFACE.
The many and valions marine disasters which have taken place within
the past few years, have led Merchants and Underwriters to inquire more
closely into the competency of the Ship master.
Certain attainments are absolutely necessary to every master. He
must, for instance, have a competent knowledge of navigation. Know
the construction of his vessel sufficiently to enable him to superintend
repairs to hull, spars or rigging. Be able, when required, to direct the
construction of jury-masts, the making and hanging of a temporary rud¬
der, &c. He must also be a diciplinarian, both over his own temper and
appetite, and over the men who are under his command. And during
the whole voyage, he must conduct himself not only under ordinary cir¬
cumstances, but in all exigencies and emergencies, with due discretion,
skill, and complete fidelity to his duties.
In addition to these qualifications, it is also necessary, that the master
should, to some extent at least, be familiar with the requirements of com¬
mercial law and usage. A great and responsible duty rests upon him,
and much depends on his judgment and determination. In case of ne¬
cessity, or of unexpected and pressing calamity happening in the course
of the voyage, the master is by law created an agent from necessity, for
the benefit of all concerned; and what he fairly does, under such circum
stances, in the exercise of a sound discretion, generally binds all the par¬
ties in interest in the voyage, whether owners, or shippers, or underwri¬
ters.
The judgment of the master, therefore, has to be exerted for all the
interests associated in the adventure which he is conducting. He is not
to sacrifice one person or class for another; neither must he fail to pro¬
tect the underwriters' interests and rights.
However honest the intention of the master may be, and however
great his desire to do right, he is invested with such large discretionary
powers, and so much depends on his judgment, that a wrong step is
VI.
PREFACE
easily taken. If the master, therefore, were better acquainted with the
requirements of mercantile law than he now is, and in case of emergency
better able to exercise and rely on his own judgment, without the dicta¬
tion of consignees, surveyors or others, who are not always disinterested in
what they recommend; it must be apparent to every one, that shippers
would have less apprehension for the safety of their goods; and the
underwriters who are continually called upon to pay exorbitant charges
and unnecessary expense, would have reason to feel relieved from great
anxiety.
So many and great, indeed, have been the losses and expenses to the
underwriters, owing to the ignorance of the master, that in nearly all
the considerable sea-ports in the world, they have appointed merchants
of experience as their agents, with instructions to offer immediate assis¬
tance, and such advice as may be required by ship masteis who may be
so unfortunate as to meet with disaster. But notwithstanding these
agents are men of well known respectability, and stand high in the esti¬
mation of underwriters and merchants at home, the master, from some
cause or other, probably under the impression that their advice would be
prejudiced in favor of the underwriters, has in too many instances, felt
reluctant to call upon them; and neglect in doing so, has frequently
proved ruinous not only to the underwriters, but also to shippers and
owners. À suspicion too Las been cast upon the fairness of his transac¬
tions, which it has often been found exceedingly difficult to remove.
The maritime law has assigned the powers; defined the rights, and pre¬
scribed the duties of the master, but no work has been published design¬
ed primarily to instruct and protect him in the fair discharge of his diffi¬
cult and often critically responsible duties in great emergencies. Elaborate
works have been written on the subject by distinguished men who have
made commercial law the subject of extended and profound examina¬
tion, as Duer, Phillips, Arnould, Parsons, and others, but these works
are too voluminous, costly, and theoretical in their design to render them
really useful to the ship master, who has seldom the inclination or the
time for the laborious study of learned writings.
To supply, therefore, what has seemed to me an existing want, viz., a
hand-book of practical utility and ready reference for the merchant and
ship master, has been the first object aimed at in the preparation of this
work. To do this, I have found it necessary to dispense as far as possi¬
ble, with technical phraseology; and by departing somewhat from the
usual form of plan and arrangement, have endeavored to render the law
in a simple and methodical manner. This of itself has been a difficult
task
PREFACE
vii.
For the benefit of the master, who frequently finds himself unable to
procure the advice he needs, this work, I repeat, has been mainly pre
pared. But, it is not to be denied, that Merchants, and Business men
generally, possess much less information on the subject of Marine Insu
ranee and Average, than is required fiom its importance to their interests.
By many, the great and only end of insurance is considered to be com
plete indemnity ; hence, the great difficulty in practice has been, in so
accurately adjusting the claim of the merchant on the underwriter, that
each ma\ be satisfied But it is evident that this can never be done
completely, till the principles and practice of marine insurance are more
perfectly understood.
With a sincere hope that this volume will be found useful to the Mer¬
chant, and a desirable traveling companion to the Ship-master, I commit
it to the public.
Francis B. Dixon.
New York, 1862.
CONTENTS
CHAPTER I.
PAGE.
The Master —
The duties and Powers of Masters of Vessels ship¬
wrecked or in distress, - - - - 13
CHAPTER II.
On Marine Insurance 26
CHAPTER III.
Of the Policy of Insurance 29
Form and Essentials * - - - - - 29
General Rules of Construction - - - - 32
Usage • - ----- 34
CHAPTER IV.
\
Of Valued Policies - 88
CHAPTER V.
Of Open Policies 45
X.
CONTENTS.
CHAPTER VI.
PAGE.
Of Insurable Interest » 52
Insurable Interest in Profits or Commissions - - - 54
Insurable Interest in Bottomry and Respondentia - - 55
Insurable Interest of Consignees, Factors or Agents - 50
Insurable Interest of Charterer * - - - . 58
Insurable Interest of Mortgagor and Mortgagee, and other
Parties having a lien - - 58—59
CHAPTER VII.
Of Prior Insurance, Double Insurance and Re-insuranee 61
CHAPTER VIII.
Of Representation and Concealment 64
CHAPTER IX.
Of Express Warranties - - 69—70
Warranty of Ownership - 71
Warranty of Neutrality » - - - - - 72
, Warranty of Time of Sailing - - - . - 73
Warranty to Sail with Convoy - - - - - 75
Particular Warranties and Stipulations - - 75
CHAPTER X.
Of Implied Warranties - 77
Warranty of Sea worthiness - - - - . - 77
Deviation - ... 78
CHAPTER XI.
Of General Average 81
CONTENTS.
CHAPTER XII.
Adjustment of General Average and Contribution
CHAPTER XIII.
Of Partial Loss
CHAPTER XIV.
*
Of Total Loss and Abandonment -
APPENDIX.
International General Average—Synopsis of General Average
practice in England, America and France—Form of Bot
tomry Bond—American Ship masters' Association
GENERAL INDEX.
CHAPTER I.
THE MASTER.
There is 110 member of society from whom more is expected
and demanded than the ship-master. His office is one of
great power, dignity and responsibility. Not only is the whole
property of the vessel, her cargo and her earnings within his
power, and its safety dependent upon his honesty, his prudence
and energy, but the very lives of the crew and the passengers
hang as it were on the master's experience and watchfulness.
Apart, therefore, from the nautical qualifications of the master,
which he ought to possess in no slight degree, there are various
other circumstances connected with his profession, which call
for the exercise of high qualities of character.
One of the most marked, interesting and important signs of
our unequaled national advancement, is the great improvement
constantly being made in the art of ship-building. Nowhere
has there been so much enterprise displayed in successful effort
to excel in this line of arts, as among American ship-builders;
as an evidence of the fact, our ships are now the acknowledged
models for all nations.
And as our ships are proverbial for their beauty and sailing
qualities; so are their commanders,for perseverance and phy¬
sical endurance ; and we trust, under the various efforts that
are now being made for the perfection and competency of the
ship-master, it may soon be said that they are also proverbial for
their entire ability to perform the various duties of their pro¬
fession.
14
MARINE INSURANCE AND AVERAGE.
The ship-master, anxious for distinction in his profession,
should bear in mind, that he holds a position of great responsi¬
bility, and is invested with an authority and discretion, which
are not paralleled by any other relation in private life. That in
addition to his having the entire command of the ship, he is by
law in cases of necessity, or of unexpected and pressing calamity,
created an agent for the benefit of all concerned, and that, gene¬
rally, his acts, under the exercise of a sound discretion, bind all
parties interested in the voyage, whether owners, or shippers, or
underwriters.
When visiting foreign countries, feeling justly proud of the
noble specimen of art over which he has command, he should
also bear in mind that ship-masters are, generally, regarded as
our principal representatives, and the standard by which the peo¬
ple of those countries judge us ; and that, if they are found to
have clear, well defined and accurate ideas touching the require¬
ments of commercial law, and to be ready and competent, in all
cases of disaster, to exercise their own judgment, without the
dictation of consignees, agents or surveyors, who are not always
disinterested ; it will, added to a reputation for sobriety and inte¬
grity, conduce largely to our national honor and reputation.
It is not, however, to be presumed that masters, in the midst of
their various duties, can be familiar with all the rules of law gov¬
erning the multitudinous cases growing out of marine disaster.
Nor can they, in all cases, even be presumed to know how parti¬
cular acts or a particular course of proceeding will affect the dif¬
ferent, and sometimes conflicting interests of the ship-owner, the
freighter, and of the several underwriters upon ship, freight and
cargo. There are a few general principles of law and usage,
which may aid him in determining what he ought to do for the
advancement of the general interest, on putting into an interme¬
diate port in distress.
The broad and equitable principle, touching these several in¬
terests, is, that he should act upon the responsibility of his own
judgment and without partiality. The best general rule for him to
observe, is, to act as he believes a prudent man would act, who was
THE MASTER.
15
the owner of both vessel and cargo, without insurance on either.
An intelligent ship-master keeps himself informed of all the
circumstances relative to the disasters which lead to the losses
and disbursements named averages. He enters, or causes to be
entered, a faithful and minute record in the ship's log-book, from
watch to watch, of all that transpires. On arriving in port, he
notes his Protest, and extends it afterwards, by the aid of the log¬
book, and while all the circumstances of the voyage are fresh in
his memory ; taking care that it shall be a correct and clear state¬
ment of the events of the voyage.
In every disaster, the master should be careful to communicate
it, by the readiest mode of conveying intelligence, with all de¬
tails, both of the mode of the disaster, and of the extent of damage
or injury, to owners, consignees or insurers, as they may be most
near or easy to be sent to. Duplicates should be sent in case op¬
portunities allow. Neither the owner nor the insurer can act,
without them, and delay from want of communicating intelli¬
gence is often ruinous.
If the master finds that he requires advice or assistance from
others, merchants in the various considerable ports have been
recommended by underwriters, to whose advice it will be most
useful to him to resort. They are not only of well known respec¬
tability, but they, being in the high estimation of merchants and
commercial men at home, will greatly aid in the settlement of
claims arising out of disaster. Their advice and recommenda¬
tion will be the safest protection of the upright and honorable
ship-master's intentions, as well as the wisdom of his measures.
An active master will seek for good and economical mechanics
in repairing his ship ; he will superintend the work him¬
self, and will take care that credit for old materials, and dis¬
count for prompt payment are duly deducted from the bills. He
will also try and find the least expensive means for raising funds
to meet the disbursements. Before he leaves the port he will
take care to have all bills paid, and entered in a general account;
and that account is sometimes certified by the consul or under¬
writers' agent.
16
MARINE INSURANCE AND AVERAGE.
In every case of disaster, the vessel must he repaired, if practi¬
cable, without a gross expenditure exceeding three-fourths of the
value of the vessel, (that is, one-half after deducting one-third for
new), as valued in her insurance, or estimated at the place of be¬
ginning her voyage from the United States.
There is an impression current among nautical men, that, if a
vessel cannot be repaired at such a cost as will not exceed half
her value when repaired, she may be abandoned and sold. This
is a false impression, the policies in use in New York, and in New
England, require, that the cost of repairs under adjustment, as of
a partial loss, shall exceed half the sum insured, or there can be
no abandonment. The sum insured means, the valuation of the
vessel in the policy, and the cost of repairs means, the cost of
materials and labor, exclusive of the expenses of delay, port
charges, etc.
If full repairs cannot be made at all, or without extraordinary
expense, temporary repairs must be put on the vessel, in order to
complete the voyage ; at its end these repairs will generally be
fully allowed and the full repairs may be made after getting into
a suitable port for repairing, at the expense of the underwriters,
as in other cases.
If spars are sprung, or sails or rigging injured, and cannot be
readily replaced, or without great expense, every expedient with
which a practised seaman is ready, ought to be resorted to, in or¬
der to make the injured articles serve until arrival at some consi¬
derable port where the repairs can be done completely. The re¬
pairs may then be made with advantage to all parties, without de¬
lay of the voyage, or an extravagant extent of expenditure, which
is always more or less to the discredit of the ship-master.
When goods are found to be damaged in an intermediate port,
the master should take care that they are carefully examined by
competent persons, who will recommend the proper steps to be
taken for drying them, etc. If there is danger of their perishing
or of injuring the other parts of the cargo by their re-shipment,
a sale should be made of such portions as will avoid this incon¬
venience. And where there is an agent of the underwriters resi-
THE MASTER.
17
dent, the master should call him in to assist and advise ; he should
also be invited to attend the survey and sale, certify to the cor¬
rectness of the papers, and see generally, that due care is used in
all parts of the transaction. An important object with the under¬
writers in desiring to have their agent present, is to prevent that
wholesale condemnation of goods, which too frequently occurs.
If the damage is discovered at the end of the voyage, at the
port of destination, it is also desirable to procure the co-opera¬
tion of the underwriters' agent. 'The master, with his assis¬
tance, should appoint competent merchants as surveyors, and
he should see that a proper investigation is made, that a correct
certificate of sound value is given, and that the papers are, in
all respects, complete. A very material and useful document
in the adjustment of loss, is the actual account-sales of the
sound portion of the goods. Tt. is preferable to a certificate of
sound value.
In case the vessel shall be subject to salvage, it is proper al¬
ways to have the vessel and cargo ajrpraised at their value as
brought in ; and then the alternative be adopted either to bond
the cargo and vessel, or to sell, as may be deemed necessary.
The vessel, cargo and freight, may always be pledged by bot¬
tomry, to relieve the vessel and cargo from her salvage charges ;
and this is generally expedient. But if this cannot be done,
and the vessel and cargo are not perishing so rapidly as to allow
of no communication with the home of the vessel, a postpone¬
ment of the sale ought always to be applied for; until advice
or relief can be had from the owners or underwriters.
Judge Marvin, in his excellent Treatise on the law of Wreck
and Salvage, page 22, remarks, "The master's authority to set¬
tle or to refer to arbitrators a claim for salvage upon his vessel
or cargo, depends, like every other exercise of his powers as
agent, upon the circumstances which make Such settlement or
reference necessary and proper. In a country distant from his
owners, where he cannot consult them without injurious delay;
on a barbarous coast, or in countries where justice cannot be ob¬
tained in the courts, his powers must be considered as equal to
2
18
MARINE INSURANCE AND AVERAGE
the emergency, and his settlement made in good faith will he
held valid. So also, in his own country, when the demand is
small, it may often he the interest of the owners, that the
amount should be settled at once hy the captain, and the vessel
proceed on her voyage, without waiting even a day for the pur¬
pose of consulting them. But in every case of settlement of
salvage by the master, his conduct will he carefully watched
and scrutinized hy the courts, and his contracts will not be re¬
garded as binding upon the parties concerned, unless they ap¬
pear to have been bona fide, and such as a discreet owner, placed
in like circumstances, would probably have made. If the case
arises in our own, or in a foreign country where tribunals hav¬
ing jurisdiction of questions of salvage, are easily accessible,
and where decisions are promptly made, and, if injustice is done,
appeals may be taken; the master's authority to play the judge
himself, or to submit the case to arbitrators, must be considered
as very much restricted. Of all the modes of settling a demand
for salvage, an arbitration is usually the most injudicious for
the master to adopt. He is very liable to be imposed upon,
however cautious he may be, as he can scarcely ever know any
thing of the qualifications of the arbitrators. Besides, however
intelligent or honest they may be, there is usually a spirit pre¬
valent, in neighborhoods where shipwrecks often occur, which
the French call an esprit de localité, which warps the judgments
of the most candid and upright men engaged in business, and
renders their awards partial and unjust."
It is always to be borne in mind, that nothing but absolute
necessity, or a cost to repair of over three-fourths her value, can
warrant a sale of the vessel; and not only will a sale otherwise
made relieve the insurers, but the purchasers' title can be im¬
peached, whenever the vessel can be found in the United
States.
Such is the nature of the contract between the shipper and
ship-owner, and such is the law applicable to such contract, that
the master must not abandon the ship or cargo upon any ground
when it is practicable for human exertions, skill and prudence
THE MASTER
19
to save them or any of them from impending peril. À loss of
the goods caused by negligence, carelessness or unskilfulness,
or any loss, which might have been prevented by human exer¬
tions, is not a loss by a peril of the sea, which exonerates the
master and ship-owner under their bill of lading from liabili¬
ty. After shipwreck, the master is bound to exert himself to the
utmost to save the goods and to attend to their safe custody and
preservation. In Cordes v. Propeller Niagara, 21 Howard, 7.
The Supreme Court of the United States held, that the ship¬
owner was liable for loss and damage happening to the cargo
after the ship had stranded, because the master did not sufficient¬
ly exert himself to prevent such loss or damage.
When vessels are stranded on our coast, it frequently occurs
that the master abandons the property to the wreck commission¬
er, under the impression that he is bound to do so. In this he is
mistaken. In all cases the master should keep the control ot
the property, employing the wreck commissioner when necessary,
for advice and information, and as one through whom he can pro¬
cure all needful assistance ; and it is his duty to furnish it, when
required by a master in distress. It is the master's duty to com¬
municate at once and as expeditiously as possible with the own¬
ers or underwriters.
It not unfrequently happens that vessels are sold by masters
abroad, simply because funds cannot be readily obtained to pay
for repairs, and it has become a system in many places, of late
years, to advertise for a loan on bottomry, and in case no offer is
made within a few days, to sell the vessel. There is no justifica¬
tion for the sale of the vessel in the mere fact that money cannot
be had on bottomry to pay for the repairs she needs. If it hap¬
pens in any case that a master is unable to get money, and he
chooses, for that cause, to abandon his vessel, he may do so with¬
out selling her. The right to sell is founded upon a totally dif¬
ferent principle. If the vessel is in good safety, and may remain
so until her owners or their underwriters can be informed of
the want of money to pay for repairs, the master has no legal
authority to sell her, and any title he attempts to give will be
29 MARINE INSURANCE AND AVERAGE.
invalid. It is only when the vessel is so situated that there is
imminent danger of her being totally lost, while waiting for
advices from her owners, that the master is justified in selling
her.
Judge Duer, in his elaborate decision, in the case of Ruck-
man v. The Merchants Louisville Ins. Co. 5 Duer, 366, says "a
contract of Insurance is emphatically and purely a contract of
indemnity ; and the interests of commerce, and of the public re¬
quire that its true character as such, should never be forgotten,
and in all doubtful cases be strictly maintained. Hence the
breaking up of a voyage ought never to be sanctioned when it is
certain that the ship-owner, if uninsured, would have continued
to prosecute it, nor consequently, the abandonment of a vessel
as unnavigable, ever be sustained when it is certain that the
owner, if uninsured would have elected to repair."
Arrangements relating to funds, are, of course, more easy to
make when the owners reside in the same country in which the
average occurs, and where there are means of communication
between the master and his owners. Even in foreign countries
ic frequently happens that the ship-owner has sufficient credit
for the agent or merchant disbursing average expenses on his
vessel, to be satisfied with a "Bill of Exchange" upon him, with¬
out further security. It is exceedingly advantageous thus to be
able to raise funds, and saves considerable expense. But when
money cannot be raised in this manner, the master should take
an early opportunity of ascertaining the fact, communica¬
ting full particulars, with estimates of the probable expense, to
his owners ; and if his vessel is in a European port, he will pro¬
bably be able to transmit intelligence and receive a reply by the
time the vessel is again ready to prosecute the voyage. Where,
however, the port to which the vessel may be driven for repairs,
will not admit of the master's consulting with his owners or un¬
derwriters, it is very usual, as we have said before, to pay the
disbursements by a bottomry bond, but as this is an expensive
means of raising money, the master should reduce the amount
to be borrowed, as much as possible ; to do this he should apply
THE. MASTER.
21
the sale of any condemned stores of the ship, and the proceeds
of any damaged goods, part of the cargo, which surveyors have
recommended to be sold on the spot, in diminution of the
amount of disbursements. Sometimes it is impossible to raise
money at all on bottomry ; and sometimes the rate demanded
is so high as to appear ruinous, and other means of raising
funds are resorted to. The master under such circumstances
may proceed to sell a portion of the cargo ; but he has no right
to sell an entire cargo at an intermediate port, to raise funds
to repair his vessel. He has the same right to sacrifice a part
that the remainder of the interests may reach their destination,
that he has to throw a portion into the sea to procure the safety
of the rest. À sale of part of the cargo should not be resorted
to except in the most urgent cases, and where the cargo will
bring reasonable prices. For, what is sold must be accounted
for at the prices it would have brought on its arrival at the
port of destination, which frequently will be with a heavy pro¬
fit, and be ruinous to the voyage. This matter of selling should
be carefully examined when proposed ; no more than is abso¬
lutely necessary should be disposed of ; and the latest prices at
the place of destination of the cargo to be offered for sale, should
be first ascertained, before such a decision is taken, and a selec¬
tion made of such cargo as is likely to occasion the least loss.
The loss on such a sale, will form an item in the average ad¬
justment, and will be applied to the column of disbursemen is
pro rata. The loss is discoverable by the adjuster, by making a
pro forma or simulated account-sales, as if the goods sold had
arrived in a sound state, from which the account-sales will be
deducted.
Should it be necessary to jettison a part of the cargo, care
should be taken to throw overboard the least valuable and most
weighty parts of it, if time and other circumstances will permit
of the selection being made..
In case the voyage should be inevitably broken up by disaster
or misfortunes, the master must carefully procure the proper
protests and accounts of what is saved, and of all his expendi-
22
MARINÉ INSURANCE AND AVERAGE.
tures on account. He should cause any balance of money,
whether he supposes the vessel and cargo to have been aban¬
doned or not, to be remitted in the surest way, to his owners, or
the consignors or consignees of the vessel or cargo. Such remit¬
tance will not at all affect the insurance, and will reimburse
the owners of the property some part of their loss the soonest.
The documents necessary to support a claim against the un¬
derwriters, are the protest, the surveys, the general account of
disbursements, the vouchers or receipted bills embraced by the
general account, the rate of exchange, the bottomry bond, the
value of ship, cargo and freight, a memorandum of the actual
wages of master and crew, the ship's policy, and any other
papers or letters which may throw light on the transaction, or
give any information about it.
The maxim that "freight is the mother of wages/' does not
apply to the master, and'he is entitled to recover of the owners
his wages due at the time of the loss of the ship. He may also
claim of those whose interests he represents, wages or a reason¬
able compensation in lieu of wages, for the time and labor ex¬
pended by him in closing up the business of the wreck ; includ¬
ing therein his board, his passage money home with the pro¬
ceeds, and other necessary incidental charges, to be allowed in
the final average statement.
It is the duty of the master's consignee to assist him in re¬
pairing his ship, and in preserving and taking care of the pro¬
perty. He ought to furnish the master with honest and true
accounts, and if he furnishes him with fictitious or overcharged
bills, with a view to enable him to make money out of his own¬
ers on a settlement with them, or to enable the owners to make
money out of the underwriters, he will forfeit his right to re¬
cover of the owner the moneys truly advanced by him; and a
bottomry bond, taken by him under such circumstances, is void.
18 Howard, 68.
The master being the agent of others, can make no money for
his own use out of any business growing out of the disaster,
either in the shape of returned commissions, or overcharged
THE MASTER.
28
"bills, or in any other way; but he may he required to account,
under oath, for all such gains.
Marine Insurance, as will he seen in a subsequent part of
this work, is a contract of indemnity against those perils, to
which ships are exposed in the course of their voyage from one
place to another. It gives greater security to the fortunes of
private persons by dividing amongst many that loss, which
would ruin an individual. This security tends greatly to the
advancement of trade and navigation, because the risk of trans¬
porting and importing being diminished, merchants will more
easily be induced to engage in extensive trade, to assist in im¬
portant undertakings, and to join in hazardous enterprises.
But it is not individuals only that derive advantages from the
increase of commerce, the general welfare of the public is also
promoted. And notwithstanding the system of insurance is so
advantageous to the spread and safety of commerce, it happens
to be peculiarly open to fraudulent attempts. These attempts
at fraud are made in various ways. They sometimes consist in
getting the underwriters to pay for repairs, not arising from
perils insured against. Sometimes in making them pay for old
defects or decay, discovered when the vessel was opened to effect
repairs of recent damage. And sometimes in making them
pay for improvements. When the metal sheathing has been on
the ship so long that it needs renewing, an owner has some¬
times been known to prevail on the surveyors to state, that to
repair the damages, it is requisite to strip the ship and re-metal
her. If the surveyors are not men of integrity, they can greatly
assist a dishonest owner or master in defrauding the underwri¬
ters. Hence the motive for underwriters desiring their agent
to be present on the holding of surveys, and their suspicion of
the entire correctness of the master's proceedings, when he has
refused or neglected to consult the agent. Other frauds consist
in goods not unfrequently being sent on board or alongside, in
bad order, and in a damaged state. Should this fact escape de¬
tection, the dishonest merchant will have no difficulty in recov¬
ering the amount of damage from the underwriters. When the
24
MARINE INSURANCE AND AVERAGE.
master does discover that the goods are damaged, letters of in¬
demnity are sometimes offered by the shippers -for signing the
bill of lading "in good order.'' This is nothing less than con¬
niving at fraud, and injuring the character of the master and
of the ship in the estimation of the underwriters. Every hon¬
orable ship-master, should therefore reject with scorn proposals
of this nature. Other frauds consist in false accounts, false
quantities and prices ; bills simulated together, such materials
and labor never having been employed about the ship ; false or
colored protests; and the concealment of discounts or allow¬
ances. À most improper proceeding is not. unfrequently taken
in intermediate ports, viz : that of making presents to the mas¬
ter to induce him to agree to pass exorbitant charges. And
proposals are sometimes made by the master's consignee or
agent, to divide the custody commission, provided the master
will agree to have his cargo discharged, stored and reshipped,
in cases where there is no necessity of doing so. In some ports
this commission is very exorbitant, varying from 1\ to 5 per
cent. In no case ought the cargo to be unladen without the
clearest necessity; it is not only very expensive, but always
creates a great delay, and is apt to end in serious injury to the
cargo. When unloading is absolutely necessary, the intelligent
ship-master will be careful to stipulate against the enormous
charge of commission named above, as no substantial responsi¬
bility is thereby incurred; and in most cases a charge of com¬
mission for such transactions is considered unreasonable. The
master can always ascertain before he proceeds to discharge his
cargo, what this commission will be, and should an unreasona¬
ble sum be required, he can obviate the difficulty by keeping
the entire control of the cargo in his own hands, and hiring
store-room himself. A proper charge for storage and a régular
commission for the general business of the ship under repair,
will afford, in most instances, a. fair and adequate remunera¬
tion. It is always proper to have suitable men employed to
watch and take care of the cargo, whose compensation will fall
into an average, general or partial, and without any deduction ;
THE MASTER.
25
so, also, any reasonable compensation to the merchant for his
actual trouble, responsibility and services, will be justly charge¬
able and freely allowed. The difference between such charges
and a commission on the whole cargo, will be obvious to every
ship-master.
Another species of fraud, is, that salvors often present the
captain with a share of their gain, that he, on his part, may not
resist their heavy claims, and may afterwards give a false ac¬
count of the accident and its consequences.
A ship-master, who connives at any of these frauds, places
himself in that pitiable condition in which a man finds himself
when he has lost his honor. We are satisfied that every hon¬
orable man and true American seaman, will reject with scorn,
every insulting proposal of this nature.
When any of these fraudulent practices are discovered, it not
only blasts the master's reputation, but probably ruins his pecu¬
niary prospects for life. His character becomes known to the
underwriters throughout the country; and they will, of course,
refuse to write on a ship in charge of a man of doubtful integrity.
These practices too, when discovered, excite in the underwriters
and others who were intended to be defrauded by them, a just
and natural indignation ; which frequently results in creating
a suspicion in cases where no ground exists for it ; and thus, by
the unscrupulous selfishness of one man an injury may be done
to a number of innocent persons.
The mode of insurance now adopted in some of the principal
ports of the United States, makes the merchants mutually in¬
surers for each other. They thus are all interested in seeing that
every proper measure for the protection and saving of the proper¬
ty at sea from damage or loss is adopted. They are now all in¬
terested as insurers in the promotion of justice, and moderation
in the settlement of claims for loss ; and the ship-master who
faithfully discharges his duty will rapidly advance his character
and reputation, while he who fails in it will find the universal
interests of commercial men, as well as their sense of justice
active in exposing him.
CHAPTER II
MARINE INSURANCE.
What is Marine Insurance ?
It is a contract whereby one party for a stipulated premium,
undertakes to indemnify the other against certain perils, or sea
risks, to which his ships, freight and cargo, or some of them, may
be exposed, during a certain voyage, or a fixed periodof time.
Definition of terms.
The party interested in the property insured, is called the in¬
sured or assured.
The party undertaking to indemnify the assured against loss is
called the insurer or underwriter.
The property insured itself is called the subject of insurance.
The title or interest which the assured has in this property, is
called his insurable interest.
The agreed consideration or stipulated sum for which the un¬
derwriter undertakes to indemnify the assured is called the pre¬
mium.
MARINE INSURANCE.
27
The instrument by which the contract of indemnity is effect¬
ed, is called the policy.
That which is insured against, is loss arising from marine perils.
These perils are in technical language, sometimes called the
perils insured against, and sometimes the risks covered by the policy.
The interest of the assured is technically said to be covered by
the policy, when the sum or aggregate of sums insured in the poli¬
cy is sufficient to afford him full compensation for whatever loss
that interest may sustain.
If the value of his interest exceeds the sum insured, the ex¬
cess of interest is said to be "uncovered by the policy" and the as¬
sured to be " his own insurer to that extent."
When the liability of the underwriter commences under the
contract, the technical mode of expressing this is by saying that
the "policy attaches" or " the risk begins to run" from that time.
By whom may the contract of insurance be made ?
It may be made, generally, by any parties competent to enter
into any contract. All persons, whether aliens or natives, may
be insured, for it is a contract authorized by the general law of
nations. An exception however, is made against an alien enemy.
An insurance for his benefit, or to cover any property or interest
belonging to him, is void, and no contract of insurance can be en¬
forced in his favor in our courts.
What is the nature of the indemnity afforded by Marine In¬
surance ?
<
The general principle and purpose of insurance, is, that of
giving indemnity against actual loss and no more.
28
MARINE INSURANCE AND AVERAGE.
It is not intended by the contract of Marine Insurance to put
the assured, in the same situation, in case of loss, as he would
have been in, had the adventure terminated successfully, but
only to replace him, as nearly as may be, in the position he oc¬
cupied at the outset of his enterprise.
Whether the assured receives a full indemnity for his loss de¬
pends on the sufficiency of the sum he has insured to cover the
whole interest he has at risk. If the whole sum insured be suffi¬
cient to cover the whole value of the subject insured, then the as¬
sured in case of loss will receive a full indemnity; but if the sum
insured fall short of this, it is plain that the assured will receive
less than a full indemnity. The general practice is, to value
both the ship and goods at the sum which they are severally
worth to their respective owners at the outset of the adventure,
adding thereto the premium, and all costs of effecting the in¬
surance. The subject of valuation, however, will be more fully
considered hereafter.
/
Mr. Phillips, in his valuable treatise on the law of insurance,
says: "The indemnity intended in assurance is not the putting
of the party insured into as good a condition as he would, in fact,
have been in had no loss happened. It means the repayment of
the expenses incurred, and the payment for as much of the in¬
sured subject as is lost, at its market value at the commencement
of the risk, or its value as agreed in the policy. Where such
value exceeds the real value of the subject at the time of the loss,
the assured is, in fact, more than indemnified ; where it is less, he
is, in fact, not fully indemnified; but he is in either case precise¬
ly indemnified according to the principles and stipulation of the
contract." Phil, on Ins., vol. 1, 8.
CHAPTER III,
OF THE POLICY AND ITS GENERAL CONSTRUCTION.
What is a Policy of Insurance ?
The written instrument in which the contract of marine in¬
surance is embodied is called a policy of insurance.
The policy, as will be seen by the following common form,
now in use in New York, consists of a printed form interrupted
by spaces, in which is written the special matter of each indivi¬
dual case; such as the names, dates, and places and species of
interest, rate of premium, and all particular conditions which
are to form part of the agreement.
COMMON FORM OF CARGO POLICY. (NEW YORK),
P
No.
On Account OT In case of loss to be paid to — Do make Insurance
and cause to be insured, lost or not lost, at and from —
upon all kinds of lawful goods and merchandises, laden or to be laden on board the
good — whereof is master for this present voyage, or whoever else shall go for
master in the said vessel, or by whatever other name or names the said vessel, or the master there,
of, is or shall be named or called.
80
MARINE INSURANCE AND AVERAGE,
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Beginning the adventure upon the said goods and merchandises, from and immediately fol¬
lowing the loading thereof on trbard of the said vessel, at aforesaid, and so shall con¬
tinue and endure until the said goods and merchandises shall he safely landed at afore
said. AND it shall and may be lawful for the said vessel, in her voyage, to proceed and sail to,
touch and stay at, any ports or places, if thereunto obliged by stiess of weather, or other unavoid¬
able accident, without pie„udiee to this insurance. The said goods and merchandises hereby in¬
sured, are valued at
Touching the adventures and peiils which the said INSURANCE COMPANY is con¬
tented to bear, and takes upon itself in this voyage, they are of the seas, men of war, fires, enemies,
pirates, rovers, thieves, jettisons, letters of mart and counter-mart, reprisals, takings at sea, m i csts,
resraints, and detainments of all kings, pi inces, or people, of what nation, condition or quality so-
ever, bariatry of the master and mariners, and all other peiils, losses and misfortunes, that have
oi shall come to the hurt, detriment, or damage of the said goods and meichandises, or any pait
thereof. AND in case of any loss or misfoi tune, it shall be lawful and necessary to and foi the as¬
sured, —factors, sen ants and assigns, to sue, labor, and travel for, in and about the de¬
fence, safeguaid, and recovery of the said goods and merchandises, or any part thereof, without
pre udice to this insuiance ; noi shall the acts of the insured or insurers, in recovering, saving and
preserving the piopeity insmed, in case of disaster, be considered a waiver or an acceptance of an.
abandonment; to the charges whei eof, the said Insurance Company will contribute according to
the rate and quantity of the sum herein insured ; having been paid the consideration for this in¬
surance, by the assured, or assigns, at and after the rate of
And in case of loss, such loss to be paid in thiity days after proof of loss, and proof of interest
in the said (the amount of any Note or Notes given by the assured for premiums, if un¬
paid, being first deducted,) but no paitial loss, oi paiticular average, shall in any case be paid, un¬
less amounting to five per cent PROVIDED ALWAYS, and it is hereby further agreed, That if
the said assured shall have made any othei assuiance upon the premises aforesaid, prior in date to
this policy, then the said INSURANCE COMPANY shall be answeiable only for so much as
the amount of such prior assuiance may be deficient towaids fully covering the premises hereby
assured ; and the said INSURANCE COMPANY shall icturn the premium upon so much of
the sum by them assured, as they shall he by such prior assuiance exonerated from. And in case
of any insuiance upon the said piemises, subsequent in date to this Policy, the said IN¬
SURANCE COMPANY shall nevei tireless be answerable for the full extent of the sum by them
subscribed hereto, without light to claim contribution from such subsequent assurers, and shall ac-
cordingly be entitled to îetain the premium by them received, in the same manner as if no such
subsequent assurance had been made IT IS ALSO AGREED, That the property be warranted
by the assured free from any charge, damage or loss, which may arise in consequence of a seizure
or detention, for or on account of any illicit or piohibited trade, or any trade in articles contraband
of war.
Warranted not to abandon in case of captuie, seizure, or detention, until after condemnation of
the property insui ed ; nor until ninety clays after notice of said condemnation is given to this
Company. Also warranted not to abandon in case of blockade, and free from any expense in con¬
sequence of captuie, seizure, detention, or blockade, but in the event of blockade to be at liberty
to proceed to an open poi t and there end the voyage.
Premium,
Poiici),
=—Memorandum It is also agreed, that bar, bundle, rod, hoop and sheet iron, wire of all kinds,
tin plates, steel, maddei, sumac, wicker-ware and willow (maiiufactured or otherwise), salt, grain
of all kinds, tobacco, Indian meal, fruits (whether preserved or otherwise), cheese, dry fish, vege¬
tables and loots, rags, hempen yarn, bags, cotton bagging, and other articles used for bags or bag¬
ging, pleasure carriages, household furniture, skins and hides, musical instruments, looking glasses,
and all othei articles that aie perishable in their own nature, are warranted by the assured free
from average, unless geneial ; hemp, tobacco stems, matting and cassia, except in boxes, free from
average under twenty per cent unless genei al ; and sugar, flax, flax seed and bread, are warranted
by the assured free fiom average under seven per cent unless general ; and coffee, in bags or bulk,
pepper, in bags or bulk, and rice, free fi om average under ten per cent, unless general.
Warranted by the assured free from damage or injury, from dampness, change of flavor, or being
spotted, discolored, musty or mouldy, except caused by actual contact of sea water with the articles
damaged, occasioned by sea perils. In case of partial loss by sea damage to dry goods, cutlery or
other hardware, the loss shall be ascertained by a separation and sale of the portion only of the
contents of the packages so damaged, and not othei wise ; and the same practice shall obtain as to
all other merchandise, as far as practicable. Not liable for leakage on molasses or other liquids,
unless occasioned by stranding or collision with another vessel.
.1.25 If the voyage afoiesaid shall have been begun, and shall have teiminated before the date of this
Policy, then there shall be no return of premium on account of such termination of the voyage.
In all cases of return of premium, in whole or in part, one-half per cent, upon the sum
insured, is to be retained by the assurers.
In witness whereof, the President or Vice President of the said—— INSURANCE COM¬
PANY hath hei eunto subset ibed his name, and the sum insured, and caused the same to be attested
by their Secretary, in New-York, the—— day of one thousand eight hundred and sixty.—
$-
Secretary-
President-
THE POLICY» 31
VESSEL POLICY (TIME) COMMON NEW YORK FORM.
No-
On Account Of In case of loss to be paid to Do-
u ^ ^ , make Insuiance and cause to be insured, lost or not lost, at and from g j* <j g r.
^ § â the day of 186 , at noon, until the day of g,® Iffo
2 | o | 186 , at noon If on a passage, on the expiration of the term, with liberty to the as- ^ « ^"2 Sp
h a f sured to renew the Policy for one, two, or three months, at the same rate of premium, o 3 g U!» 2 ®
iî* r*j ^ '« ct- ®
u ts % 5 if application be made to the Company on or before the expiration of the first term ^
g § ° § The risk, however, is to terminate at any port at which she may first arrive during the ° 5 »
Jj ~ o ^ said extended time, on her being moored therein twenty four hours in good safety ; r? p g S- g 3
g "g p 5 a pro rata premium to be returned lor each entire month not entered upon of the ex ^ § g* f « g*
g h g tended time, no loss being claimed Warranted not to use poits on the Continent of «■ 5*
2 f 6 ,2 Europe north of Hamburg, nor to go east of Navarino in the Mediteiranean, duiing lJ p 2
ptj rr\ ""~4 _ >—» *-J I-J Q,
o ® « a the period insuied ; nor to use ports on the Continent of Europe north of Antwerp, be- 2-sr £-3'c ^
C3 ^ ■ V -I I f
g c £ .2 tween 1st November and 1st March; nor ports in the British North American Fro- p s »
o ^ o fC ' »-* 5 a 5
iz a P< ^ vinces, except between the fifteenth day of May and fifteenth day of August; alsoj < o ® ^ p,P
m fc | H warranted not to use the West India Islands during the months of August and Septem ® " p
53 ,5 " £? (i c'vs "< O p
-g p: .3 ber ; also, wai ranted not to use ports and places in Texas, except Galveston, nor ® 3 ^ a
^ ^ foreign poits and places in the Gulf of Mexico, nor places on or over Ocracoke Bar; Sg go.
® *£ ° § nor any of the West India Salt Islands ; nor ports or places on the West coast of Ame- « I ~ rt o 2.
f-3 ». 11 3 vD © "*j M»
S £ ® g rica north of Benicia; nor the M in Iîiver; noi Toi res Straits, dut ing the period in- £. v ^ 2-î" 2
h| © «S ^ 75 ^ fD P
S -g 'x £ sured. Each passage sub ect to separate average Wai ranted not to load more than 5' 5 2 © s 2.
o a, 3 her registered tonnage with lead, maible, coal or iron, on any one passage ; also, war- » £*"*' ^ © 9
^ 3 4-3 2 m y P ^ ^
âo S 9 ° ranted not to carry grain in bulk, except fiom the ports of New York, Philadelphia or 9. ' g ?
O £> g £ * ^ p, g p* rt
"jjj -g ^ ° Baltimore, and in all cases not to exceed one half the registered tonnage, and the 2.
p g loading to he under the inspection of a surveyor appointed by the Board of Under- Bo-* 5
i-i 4-» . # O 3 ***" O
a, £ o writers for that purpose The vessel is not to pi oceed to sea with grain in bulk or bags, p o
^ *fi . fHnm olvrttrrt -rvrvi fc? wîfhnnf n rioi«fifîptifa fi'rtm onnîi îrvarviCmf/wr. +Tiof -fTia waocnl 1» (1 ifl H n, P ^
l b o n from above poits, without a Certificate from such inspector that the vessel is properly » *> m p. ^
<D O 4 1 w ^ ^ - ft
•d g £ 4* laden and fitted for her intended voyage.
£ o ®PSs2o
K tf
S « a upon the body, tackle, apparel, and other furniture, of the good '<& ' S" . 0
0 ~ ^ o 5 ic p 2 ^ M
.g g g to called the whei eof is master for this present voyage,- or whoever g ^ « < 0 3
>• 5 £ V else shall go for master in the said aessel, or by whatever other name or names the ^2. =" 5" 3-p
^ Q L c-iw5(w>OCD»-t.
vj t- m a said vessel, or the master theieof, is or shall be named or called. ooo03«
ajo-^u Ogo-H,aa
1 - § o g1®
^ ,2 S S a3 And it shall and may be lawful for the said vessel, during the term insured by this g o 2,3 £.2
fe o P « a po^cy, to proceed and sail to, touch and stay at, any ports or places, if thereunto » 2.^ o
»i §: %■ to obliged by stress of sveather or other unavoidable accident, Avithoutpre„udice to this in- g' 3 g g' g*
surance. The said vessel, tackle, &c., hereby insured, are valued at 5-, t? 3" 2 2* 3*
t31 s ^ „
o „ C g o g
without any further account to be given by the assured to the assurers, or 00£ 0 »
any of them, for the same. 2.'' » ^2
1 1 p o 3
SP o m S »
Touching the adventures and perils which the said INSURANCE COM- p
PAN Y is contented to bear, and takes upon itself in this voyage, they aie of the seas, 2 ^
men of war, ft) es, enemies, pirates, rovers, thieves, jettisons, letters of mat t and counter- S a=i ~ % %
1 • ^ g? 3*
mart, reprisals, takings at sea, ai rests, restraints, and detainments of all kings, princes, g g* « ^ 3
(jQ y ^ P
or people, of what nation, condition or quality soever, bar)at)y of the master and g g S4
mariners, and all other perils, losses and misfortunes, that have or shall come to the ° |
hurt, detriment, or damage of the said vessel, or any part thereof. AND in case of jf §• 2' ° g
^unt 3n®Utfï>. any J0SS or misfortune, it shall be lawful and necessaiy to and for the assured, g 2. o J g,
factors, sen ants and assigns, to sue, labor, and travel for, in and about the de-
fence, safeguard, and recovery of the said vessel, or any pait thereof, without pre- £f3 'g ® £"•
judice to this insurance; to thechaiges whereof, the said Insurance Company will g§!§ "'f
; contribute according to the rate and quantity of the sum herein insured ; nor shall the B1 » g*
acts of the insured or insurers, in lecovering, saving and preserving the propcity in- ® o I 2 <i
r-j ►-* p
sured, in case of disastei, be considered a waiver or an acceptance of an abandonment; £ g S 5 g*
having been paid the consideration for this insurance, by the assured, or—— assigns,
at and after the rate of
32
MARINE INSURANCE AND AVERAGE.
And in case of loss, such loss to be paid in thirty days after proof of loss, and proof of interest
in the said (the amount of any Note or Notes given by the assured for premiums, if un¬
paid, being first deducted,) but no pai tial loss, or particular average, shall in any case be paid, un-
less amounting to five per cent PROVIDED ATP,Y AYS, and it is hereby further agreed, That if
the said assured shall have made any other assurance upon the premises aforesaid, prior in date to
this policy, then the said INSURANCE COMPANY shall he answerable only for so much as
the amount of such prior assurance may be deficient towaids fully covering the premises hereby
1 • I -25 assured ; and tbe said INSURANCE COMPANY shall îeturn the premium upon so much of
the sum by them assured, as they shall be by such prior assurance exonerated from And in case
of any insurance upon the said premises, subsequent in date to thi3 Policy, the said IN¬
SURANCE COMPANY shall nevertheless be answerable for the full extent of the sum by them
subscribed hereto, without right to claim contribution from such subsequent assurers, and shall ao-
cordingly be entitled to i etain the premium by them received, in the same manner as if no such
subsequent assui ance had been made. IT IS ALSO AGREED, That the property be warranted
by the assured free fi om any chai ge, damage or loss, which may arise in consequence of a seizure
or detention, for or on account of any illicit or prohibited trade, or any trade in articles conti aband
of war. AND it is further agreed, That in case a total loss shall be claimed, for or on account
of any damage or chaige to the said vessel, the only basis of ascertaining her value, shall be her
valuation in this policy; and if not valued herein, then her actual v alue at the time of the inception
of this risk at the poi t to which she then belonged. AND LASTLY, it is agreed, that if the above
vessel, upon a regular survey, should thereby be declared unseaworthy, by reason of her being un¬
sound or rotten, or incapable of prosecuting her voyage on account of her being unsound or rotten,
then the assurers shall not bo bound to pay their subsciiption on this Policy
Warranted not to abandon in case of capture, seizure, or detention, until after condemnation of
the property insured ; nor until ninety daj-s after notice of said condemnation is given to this
Company Also •warranted not to abandon in case of blockade, and free from any expense in con¬
sequence of capture, seizure, detention, or blockade, but in the event of blockade to be at liberty
to proceed to an open port and there end the v oyage.
I
Tn all cases of return of premium, in whole or in part, one half per cent upon the sum
insured, is to be retained by the assurers
IN witness whereof, the President or Vice President of the said INSURANCE COM-
#
PÀNY hath hereunto subscribed his name, and the sum insured, and caused the same to be attested
by their Secretary, in New-York, the- day of one thousand eight hundred and sixty.—
$ Secretary — President
premium,
What is the general construction of the Policy ?
The terms used in a policy of insurance are to he construed
in that sense which the known usages of trade, or the use and
practice as between underwriters and the assured, have given
to them.
Policies of insurance are generally the most informal instru¬
ments that are brought into courts of justice, and there are no
instruments that are more liberally construed in order to effect
the real intention of the parties, where such intention can be
clearly ascertained.
me ï>olîc¥.
33
Most policies contain phrases made necessary by the peculiar
circumstances of each case, or introduced for the especial pur¬
poses of the parties. These phrases are, for the most part, mer¬
cantile phrases. They are used by merchants among themselves,
and understood by them; and much injustice would be done if
the law did not interpret them in the way in which they are
used and understood.
The validity and construction of a policy of insurance, are also
governed by the laws of the place where it was made, and of the
places to which it has reference in respect of acts to be done
under it.
The predominant intention of the parties in a contract of in¬
surance, is indemnity, and this intention is kept in view and fa¬
vored in putting a construction upon the policy.
In policies of insurance, as in all written instruments consisting
of a printed form, there are blanks which are filled in manu¬
script. These written words are taken to be the immediate lan¬
guage and terms selected by the parties themselves for the ex¬
pression of their meaning ; and greater strictness of construc¬
tion is applied to these clauses and stipulations which the
parties have themselves introduced, than to the words of the
printed formula; which are adapted to all other cases of insur¬
ance on similar subjects, and not confined to the circumstances
of the particular adventure.
Where an action was on a policy containing the common
printed memorandum, salt, wheat, Sfc., are warranted free from
average, unless general ; and all other goods free from average
under five per cent,, unless general, and there was also an addi¬
tional clause in writing, which provided that .the goods insured,
(being cotton and sugar) should be free of average under ten per
cent. It was held, that the clauses were inconsistent with each
other, but that the written clause should be considered as expres¬
sive of the actual understanding between the parties, and that the
goods were exempted from all average losses, whether general or
particular, under ten per cent. Coster v. The Phenix Insurance Co.,
2 Wash., C. C. Rep. 51. 2 Condy's Marsh, on Ins., 547, note;
3
84
MARINE INSURANCE AND AVERAGE.
The usages of trade, as already mentioned, are to govern the
construction of terms used in a policy of insurance. But a
usage, in order to affect the parties to a policy, must he con¬
formable to law, and applicable to insurance.
No usage is permitted to contradict the plain and positive
provisions of the policy. Thus a usage not to pay for a partic-
lar part of the vessel's apparel or furniture, as a boat when it is
in a certain place on the vessel, is invalid if the place is that
where it is usually carried.
In Marcy v. Whaling Ins. Co., 9 Metcalf, 363, Mr. Chief Justice
Shaw remarked; "usage may be admissible to explain what is
doubtful ; it is never admissible to contradict what is plain
and free from ambiguity, otherwise the parties will be arbitra¬
rily held to mean differently from that which they havewritten."
The strongest instances that can be given of the application
of this rule have occurred in those cases where the risk on goods
being expressly made by the policy to begin from their loading
at a certain named place, the. courts have uniformly decided
that the policy could only attach on goods loaded at that very
place, and not elsewhere ; even although there were frequently
strong reasons for supposing that such construction was con¬
trary to the real intention of the parties.
On the same principle, where the risk on goods was, by the
policy, made to continue " Hit discharged and safely landed,"
Lord Kenyon would not admit evidence of usage to show that
this expression in the particular trade insured, meant "until the
ship was moored twenty-four hours in safety," because this was
inconsistent with the plain meaning of the policy, which was
too clearly expressed to require or allow of any such explana¬
tion. Arnould on Ins., vol. 1, p. 80.
In Mercantile Mut. Ins. Co. v. State Mut. F. & M. Ins. Co. of
Penn. ; 25 Barb. 319, the question arose as to the construction
of the following order for re-insurance ; " Re-insurance is wanted
by the Mercantile Mut, Ins. Co. for $—, on cargo on board of the
ship ( Great Republic/ at and from New York to Liverpool, on
the excess of risks the applicants may have over $50,000, not to
THE POLICY.
85
exceed $15,000." At the time of the loss the plaintiffs had in¬
sured less than $50,000 on the cargo of the ship, but they had
risks on the freight and on the ship, which when added to the
amount on the cargo, amounted to over $65,000. It was held
that the defendants only engaged to insure the excess of risks
on the cargo, and that evidence of a custom of the parties and
of the port of New York in adjusting contracts of re-insurance,
upon such applications, to regard the word " excess" in -the ap¬
plication, as applicable to the whole amount of insurance at
risk, in or upon the vessel, and that the premiums upon open
policies had previously been adjusted and paid between the
present parties upon that principle, was excluded, there being
no ambiguity on the face of the instrument.
In Rankin v. Am. Ins. Co. of N. Y., 1 Hall, 619, the defen¬
dants offered to prove " that by the established usage of trade
in the port of New York and in other ports, the master of the
vessel is in all cases responsible for any damage sustained by
the goods delivered by him to the owner or consignee, unless
there has been an actual survey made on board the vessel by
the wardens of the port or other officers, and on such survey
'the surveyors shall have found that the goods were properly
stowed, and were damaged on the voyage by the perils of the
seas. That by a similar usage as between the assurers and the
assured, the survey so made by the wardens, is a document in¬
dispensable to be produced in order to charge the underwriters,
and that the preliminary proof is deemed insufficient, unless
such document be exhibited as a part of it." Oakley, C. J.,
said : " By the terms of the policy in the present case, the de¬
fendants bound themselves to pay all damage to the property
insured arising from the perils of the sea ; and the attempt now
made is to introduce into the policy a condition that they shall
not be responsible unless such damage is ascertained in a par¬
ticular mode, and that too by the aid of third persons, over
whom the assured has no control. Such a condition would, in
my judgment, vary the legal obligations of the defendants, as
ascertained by the plain languagQ of the policy."
86
MARINÉ INSURANCE AND AVERAGE.
In some eases it has been held, that not only must a usage
be shown, but the further fact must be proved that the under¬
writers have assented to the usage by paying claims arising
under it. Thus, under a policy on "copper," from New York to
Taunton, a part of which was carried on deck and a part in the
hold, it was proved to be customary to carry the article on deck,
but the insurers were held not to be liable for the loss of the
part so carried, as the case itself showed it not to be the uni¬
form practice to carry it on deck, and the usage proved was ac¬
cordingly held not to be applicable, for the purpose of affecting
the liability of the underwriters. Taunton Copper Co. v. Mer¬
chants Ins. Co., 22 Pick, 109.
No particular period is requisite to the establishment of a
usage. "The true test of a usage," say the Supreme Court of
New York, "is its having existed a sufficient length of time to
have become generally known." 1 Caines 45, 9 Wheat. 581.
A usage may be local and confined to the particular place
where a contract is made, but contracting parties are not bound
by the usage of places, other than that to which the contract
has reference. Thus, a policy underwritten in New York on a
Rhode Island ship and cargo, for a whaling voyage in the Pa¬
cific, was held not to be governed by the usage of Nantucket as
to similar voyages. Child v. Sun Mutual Ins. Co. 8 Sandf. 26.
" The same rule of construction," says Lord Ellenborough, in
Robertson v. French, 4 East. 185, " which applies to other in¬
struments, applies equally to this, viz : that it is to be construed
according to the sense and meaning, as collected in the first place
from the terms used in it, which terms are to be understood in
their plain, ordinary, and popular sense, unless they have gen¬
erally, in respect to the subject matter, as by the known usage
of trade or the like, acquired a peculiar sense, distinct from the
popular sense of the same words, or unless the context evident¬
ly points out that they must, in the particular instance, and in
order to effectuate the immediate intention of the parties, be un¬
derstood in some other special and peculiar sense."
In conclusion, the true principle of construction as applied to
THE POLICY. 37
policies, is, that if the clauses of the policy are in themselves
clear and unambiguous, the courts will not admit extrinsic evi¬
dence to contradict, to vary, or to explain them. If on the contra¬
ry, they are obscure and ambiguous, the courts may resort to
any means of explaining them, which may be supplied by
either the rules of the common law, the general usages of trade,
or the particular circumstances of the case.
CHAPTER XV*.
OF VALUED POLICIES.
What is the definition of a valued policy ?
Policies are of two kinds, valued and open. A valued policy
is one in which the agreed value of the subject insured, as be¬
tween the assured ^ and underwriter, for the purposes of the in¬
surance, is expressed on the face of the policy.
What is the effect of valuation in the policy ?
Every common printed form of policy, in this country, con¬
tains the following clause. If a vessel policy, "the said vessel,
tackle, etc., hereby insured, are valued at " and if a cargo
policy "the said goods and merchandise, hereby insured, are
valued at
The difference between an open#and valued policy in point of
form is solely this ; that in a valued policy, this blank is filled
up with the sum at which the parties agree to fix the amount of
the insurable interest ; in an open policy it is left in blank.
Mr. Arnould states the difference, in point of effect, between
VALUED POLICY.
89
a valued and an open policy, thus " that under an open policy, in
case of loss, the assured must prove the actual value of the subject of
insurance ; under a valued policy he need never do so, except in
cases of enormous or fraudulent over-valuation; except in such
cases, the valuation in the policy is conclusive, and the case is
the same as though the subject of insurance was actually proved
to have been worth the sum at which it is valued." Arnould on
Ins., vol. 1,124.
The value of a vessel is not so certain as that of goods, and
cannot usually be so satisfactorily and exactly proved. In¬
surance on vessels is therefore commonly made by valued poli¬
cies. For the same reason, freight is usually valued. But goods
are more frequently insured in open policies, as the value is easi¬
ly proved by the invoices, or by showing the price current at the
time. _
What is the effect of valuations, where there are prior insurances,
or amounts have been paid upon other policies ?
This question is a much disputed one, and it is difficult, if not
impossible, to deduce from the adjudicated cases, any clear and
well defined rules to determine the effect of valuations in this
case.
For the purpose of illustration, we will presume that insurance
is effected in two valued policies, as follows :
1st October, 1861. Atlantic Ins. Co., $5,000 on freight, valued
at the actual valuation.
31s* October, 1861. Pacific Ins. Co., $5,000 on freight, valued
at $5,000.
, A total loss having been proved, what is the liability of the
Pacific Ins. Co. (if any) under their policy, supposing the interest
in freight to be $8,000 ? Both policies containing the "Ameri¬
can Clause," or usual clause as to prior and subsequent in-
40
MARINE INSURANCE AND AVERAGE.
surance, as follows : "if the assured shall have made any other
insurance upon the premises aforesaid, prior in date to this poli¬
cy, then the said ——- insurance company shall he answerable
only for so much as the amount of such prior insurance may be
deficient towards fully covering the premises hereby insured."
Under one interpretation of the Pacific's policy, they being
the subsequent insurers, the amount of the prior insurance
($5,000) being deducted from the agreed value in this policy
($5,000), it would, if such an interpretation were sustained, exo¬
nerate them from all liability, but this has not often been sus¬
tained by the courts, on the ground of not carrying out the in¬
tent of the policy, viz : fully covering the property at risk."
The authorities appear to interpret this clause with a view to
fully cover the premises insured, rather than to confine it to the
literal meaning above mentioned; and for that* purpose, they
have permitted inquiries to be made outside of the policy, as to
the value of the premises insured, and from that value if exceed¬
ing the valuation in the subsequent policy, the prior insurance
is deducted.
As the law now stands, the prior insurance is deducted from
the value which the subject insured may prove to be worth,
and the subsequent insurer is held liable to the extent of his
underwriting, to make good the difference between the amount
of the prior insurance, and the value thus proved outside of the
policy valuation, thus in fact opening the valuation or disre¬
garding the valuation in the subsequent policy altogether. The
Pacific would therefore pay $3,000 or three-eighths of $8,000.
But where it is clear that the valuation applies to the whole
thing insured, and not to the surplus after deducting the prior
insurance, it is difficult to see upon what principle it can be set
entirely aside.
The valuation,,in all other questions which have arisen un¬
der the policy is regarded by the courts as especially binding
upon the parties to the policy. In all other decisions than
those relating to prior insurance, the courts have held the valua¬
tion conclusive, except in oases of gross over-valuation, where
VALUED POLICE
41
such over-valuation led to the supposition of fraud, or where the
whole property intended to be at risk, was not shipped; and in
these latter cases the valuation was not set aside, but applied
pro rata to the property at risk. *
We are of opinion, that the end contemplated by the policy,
in fully covering the premises insured, can be obtained without
violating the contract as to valuation.
Thus, if $8,000 (the insurable interest) be valued at $5,000,
what will $8,000 (the interest remaining after deducting the
amount covered by the prior insurance) be valued at? Answer
$1,875 or three-eighths of $5,000, the amount the Pacific Ins. Co.
would have to pay.
This construction would give the assured complete indemni¬
ty as agreed for in the policy in the event of a partial loss or
general average ; and in the event of a total loss, either construc¬
tive or actual, would not violate the agreement of the parties as
to valuation.
So far as we have been able to discover, this interpretation
has never been laid before the courts, the clause "fully covering
the property at risk/' has generally been held to mean an entire
disregard of the valuation in the subsequent policy.
As a general rule, the valuation fixes the amount of the in¬
surable interest, as between the parties ; and should never, ex¬
cept in very special cases, be set entirely aside. Bousefield v.
Barnes, 4 Camp. 228. Irving v. Richardson, 1 Moody & R., 153.
2 B, & Ad. 193. Kenny v. Clarkson, 1 Johns, 385. Watson v.
Ins. Co. of North America, 3 Wash. C. C. 1. Murray v. Ins. Co.
of North America, 2 Wash. C. C. 186. Kane v. Commercial
Ins. Co., 8 Johns, 229. Minturn v. Columbian Ins. Co., 10
Johns, 75. Pleasants v. Maryland Ins. Co., 8 Cranch 55,
McKim v. Phoenix Ins. Co., 2 Wash. C. C. 89. Higginson ^
v. Ball 13 Mass. 96.
* The effect of general average, however, may he said to open the policy ; as in the adjustment
of general average or contributions, no distinction is regarded between a valued and an open poli¬
cy. Clark v. United F. à M. Ins. Co., 7, Mass. 365 ; Bedford, Com. Ins. Co. v. Parker, 2 Pick, 11.
42
MARINE INSURANCE AND AVERAGE
How is freight usually insured in valued policies ?
Ship and freight may be insured jointly in the same policy,
though more frequently insured in separate policies.
A valuation of the freight of a ship is presumed to be that of
a full cargo, or the charter of the entire ship, and is so applied,
unless the phraseology of the policy or the circumstances are
grounds for a different construction.
If, therefore, only the part of the freight of an entire cargo is
at risk at the time of a loss, the valuation is applied pro rata in
adjusting the loss.
Though freight is usually agreed for and estimated in money,
it is not necessary to the validity of a valuation of this interest,
that it should actually amount to the sum at which it is valued.
Dumas v. Unit, Ins. Co., 12 Serg. & it., 437.
Suppose the voyage insured to have intermediate stages, or to
be composed of distinct passages, at and for each of which freight
up to the time is earned and becomes due, either under the charter
party or the policy, and the freight of the whole voyage is valued
in the policy at a gross sum, is this a valuation of the amount of
all the freights, or is it to be applied to each separately ?
The general tenor of the decisions in this country is in favor
of applying the gross valuation in such cases to the freight which
is in course of being earned in each separate stage of the voyage.
The following instance will illustrate the nature of this question.
Insurance was made on freight valued at $2,000, " at and from
Philadelphia to Omoa and Golf'o Dolce, and at and thence back
to Philadelphia." In the outward passage the ship earned freight
to the amount valued ; a fresh cargo was taken on board for the
homeward passage, the freight of which would have amounted
to the same sum. This freight was lost.
VALUED POLICY.
43
The assured insisted that the outward and homeward freights
were each separately valued by this policy at $2,000.
The underwriters, on the other hand, contended that both
freights jointly were valued at that sum; and, consequent¬
ly, as half the whole amount of freight for the whole voy¬
age round, had been earned before the loss, that they could
not be called upon to pay more than half the amount insured,
i. e. $1,000.
But the court held it was a valuation of each successive freight
separately at the full amount, and consequently that the under¬
writers must pay the whole sum insured. Davy v. Hallett, 3
Caines, 16.
Mr. Phillips states the doctrine applicable to this subject to be,
that a "valuation of freight in a time policy, or one for succes¬
sive passages, is presumed to be of that successively pending, but
this presumption may be rebutted by the other provisions of the
policy, or by proof of the nature of the trade, or the ordinary
amount of the freight, that the parties, at the time of making
the policy, may reasonably have supposed would be pending at
successive periods, showing that the valuation is applicable to
the aggregate amount of the successive freights." Phillips on
Ins., vol. 2,1208.
How is cargo usually insured in a valued policy ?
Goods are more frequently insured in open policies, as the
value is easily proved by the invoices, or by showing the price
current at the time.
In insuring cargoes of foreign produce, as sugars, coffee^
etc., it is customary, because more convenient for the pur¬
pose of adjustment in case of loss, to value each species of
produce separately, and clauses are introduced into the policy
to that effect.
4A
MARINE INSURANCE AND AVERAGE.
Are the underwriters on cargo, liable to pay contribution only in
the proportion which the sum insured bears to the actual value ; or
are they liable for the whole amount assessed upon the cargo in
general average ?
According to the practice in Boston, where the contributory
value exceeds the value in the policy, the underwriter is liable
on the proportion which the sum insured bears to the actual
value, Clark v. Unit. F, & M. Ins. Co., 7 Mass. E. 365.
«
In New York, the practice is different, under a valued
policy in which the whole value as fixed in the policy is in¬
sured, the underwriters contribute the whole amount as¬
sessed upon the subject in general average, whether it contri¬
butes on a value greater or less than that at which it is fixed in
the policy, and so proportionally, if one half, one quarter, or
any other proportion of the value, is insured.
Where the cargo, however, is not fully insured, the under¬
writers certainly can only be called upon to pay on a value
within, or co-extensive with the value insured; for it would be
absurd to suppose that a shipper who only partially insures his
goods, should have all the benefit which he might have secured
if he had paid for an insurance on the full amount of his in¬
terest.
CHAPTER Y.
OF OPEN POLICIES.
What is the definition of an open policy ?
An open policy is one in which the amount of the interest is
not fixed by the policy, hut is left to be ascertained by the as¬
sured, in case a loss should happen.
The expression " open policy " is also ^sometimes used in re¬
ference to one kept open for new subscriptions, or one on cargo
kept open for new subjects of insurance, in which latter case the
voyage and risks are described in the body of the policy, and ad¬
ditional amounts or new cargoes are afterwards entered, from
time to time, at the foot of the instrument, by merely specifying '
the amount, or by naming a different vessel, or specifying what¬
ever circumstance distinguishes the risk or subject from those
described in the body of the policy.
How is the amount of insurable interest ascertained in an open
&
policy ?
The amount of insurable interest in all open policies, is taken
46
MARINE INSURANCE AND AVERAGE.
to be tbat which they are worth to the assured at the commence¬
ment of the risk, with the premium added ; and the principle
upon which the amount of indemnity recoverable by the assured,
in case of loss, is regulated, is, that he must be replaced as near¬
ly as possible in the same position as he was in at the outset of
the adventure, and before effecting the insurance, without pay¬
ing any regard to the profit he may have missed making, in the
case of goods, or to the wear and tear by which his property has
been deteriorated in the case of the ship.
How is a particular average loss on cargo usually adjusted un¬
der an open policy ?
In this country, it has been a matter of doubt with the courts
and text writers, whether in the adjustment of a loss on cargo
under an open policy, the value of the goods is to be taken to be
their prime cost, their invoice price, or their actual market value
at the commencement of the risk.
Mr. Justice Washington, in Carson v. Marine Ins. Co., 2
Wash. C. C. 468, ably contended, that the market price of the
goods at the commencement of the risk, is the true basis of cal¬
culation, and that the invoice price furnishes no rule of indem¬
nity in any case where it exceeds, or is less than this market value.
In other cases, however, the invoice value has been taken,
though different from the market value.
The difficulties in the way of adopting the market value as
the insured value in an open policy, are in bringing forward
proof of such value.
The rule, therefore, usually adopted in practice, is, to take the in¬
voice price as prima facie proof of the real insurable value, to
which is added the shipping charges and premium of insurance,
with the per cent. of advance as agreed in the policy, if any agree¬
ment be made.
OPEN POLICIES.
47
When the invoice price of goods, shipped from», a foreign port,
where there is no current rate of exchange, is expressed in the
currency of the foreign country to which such port belongs,
the true mode of ascertaining the insurable value is to estimate
what would be the worth of the foreign money in which the
invoice value is expressed, supposing that it had been shipped
in specie, instead of the goods, to the port of destination ; that
is to say, the invoice value of the goods is to be ascertained by
calculating what the foreign coin in which it is expressed
would be worth to the ôonsignee of the goods, after paying the
premium of its insurance, the freight and other expenses of its
transportation.
And where there is a current rate of exchange at the foreign
port of loading, the most equitable way of ascertaining the in¬
surable value of the goods, is to calculate the value of the for¬
eign coin in which their invoice price is expressed at the par
of exchange ; for upon this principle the underwriter will not
be affected by the rise or fall in the rate of exchange between
the period of effecting the policy and adjusting the loss:
In perishable commodities, the loss of weight and quantity is
ascertained by a comparison of invoice weights with the sale
weights, or by separating the sound packages and finding their
mean or average weight, &c.; and then having calculated what
the damaged packages should have weighed, comparing it with
the actual weight rendered by the damaged packages, by which
process the loss, as far as weight is concerned, is discoverable.
The depreciation in quality or condition, must be found by
testing the price which can be obtained for the goods in their
damaged and imperfect condition with what other goods of simi¬
lar original quality produced, or by the price which skilled per¬
sons, such as Brokers and Merchants, state they would have
realized if sound.
If the sound price be certified by a Broker or Merchant,
it must be the price of the day on which the damaged is
sold, and in the same market—and if the sound price is as¬
certained by observation of actual sales of sound in the same
48
MARINE INSURANCE AND AVERAGE.
place and on the same day, with the damaged, regard must be
had that the quality is the same in both cases, and that the con¬
ditions of each sale as to discount or credit, are similar.
In most places, damaged goods are sold by auction, and sales
by auction are almost invariably made for cash; whilst sound
sales and estimates of sound price are nearly always at a credit.
Therefore, in ascertaining the value for adjustment, both prices
must be placed on the same footing; both must be either for
credit or fof cash.
0
It is not usual where sea-damage exists in part of a cargo,
the whole of which had been previously sold to arrive, to as¬
sume the agreed price for sound value, and the actual sale of the
damaged goods after the ship's arrival, for their value in their
depreciated condition: a valuation must be given of their jmice
on the day on which the damaged goods were sold.
When the relative difference between sound and damaged is
ascertained, it is next to be applied to the sum insured. It is
not the actual amount of difference between sound and dam¬
aged, that the underwriters are necessarily liable for, but the
proportion or ratio. Thus, suppose $80 is insured on a package
of goods, the sound value of which proves to be $100, and
which sells in its damaged condition for $80, the actual differ¬
ence is $20, or 20 per cent. loss. But the underwriters have
not received a premium on $100, but on $80 only, the sum at
which the package was mutually agreed to be valued at in the
policy. They cannot, therefore, be made to pay the whole $20,
but they will pay 20 per cent, on the amount they have insured,
viz., on $80, which is equal to $16. And, conversely, if the
goods are insured for $80, their sound market price $60, their
sale $40 ; the actual difference is $20, or 83J per cent. The un¬
derwriters having insured more than the actual value, are liable
for the ascertained proportion of damage, and must pay 33J per
cent, on $80, or a sum of $26 661.
But it is not often that the insured value exceeds the sound
value. A shipper, usually insures the invoice cost of the
goods; to which is added all charges until the goods are on
OPEN POLICIES. 49
"board the ship, the premium of insurance, also a reasonable
per centage of expected profit, say 10 per cent.
Having stated in what form a claim for damage on goods is
to he made, the next point to be looked at, is, whether gross
or net proceeds are to be taken. The reason why the net pro¬
ceeds are not taken against a net sound value in fixing the
amount of damage, is this, that underwriters are not liable for
any loss which may be the consequence of the duties or charges
to be paid after the arrival of the commodity at the place of
destination. And it has been held by the courts, and adopted
in practice, that the calculation is to be made on the difference
between the respective gross proceeds of the same' goods when
sound and when damaged, and not on the net proceeds. And
a further reason for adopting this rule, is, that by taking the net
proceeds as the basis, instead of the gross, it will happen that
when equal charges are to be paid on the sound and damaged
article, the underwriter will be affected by the fluctuation of
the market, which ought not to be.
On the following page, ivill be found an example in figures, of
an adjustment of particular average on goods.
4
50 MARINE INSURANCE AND AVERAGE.
Common form of adjustment of particular average:
250 packages of Tea ivere insured from Amoy, China, to New
York, for $2,568.
On arrival in Neiv York, 104 packages id ere found damaged,
and sold at auction. Invoice weight, 5,400
Sound value at 6 months, 20 cents,
Less, 3-2 per cent, discount for cash,
Sound Value,
Being damaged, produced gross, msA,
The difference,
ù equal to 19 So per cent.
The Insured Value of 104 packages, ts
Which at 19 "So per cent., would lose
Equal to 7/£> per cent.*
To which, add auction charges, port wardens? fees, copy
of protest, Sçc., - 26 94
Claim on Underwriters, - $231 95
In case of particular average or damage to cargo, it will
greatly facilitate the owners in their settlement with the un¬
derwriters, to have the sound vaiue certified by the agent of the
6 Noie —If insured "free of particular average under 8 per cenf.27iere ts wo claim, although the
expenses of ascertaining the loss added thereto, should cause the amount to exceed the requited per
centage.
Tea is usually insured in lots of $5,000, and the loss of a part, to constitute a claim, must
amount to 5 per cent., or $250,. or there will he no claim under the policy.
$1,080 00
87 80
$1,042 20
888 20
$204 00
$1,047 34
$205 01
OPEN POLICIES.
51
insurers. And when it is necessary to appoint surveyors, relia¬
ble persons, and those acquainted with the goods which they
are to inspect, should be had; and the underwriters' agent
should be consulted as to the proper persons, and he should
also be invited to be present at the holding of such survey.
An important object of the underwriters in desiring to have
their agent present, is to prevent the wholesale condemnation
of goods, which too frequently happens, where the surveyors
are appointed by the consignee. Surveyors are not always ju¬
dicious nor always disinterested; on the contrary, it too fre¬
quently happens, that they have interests directly opposed to
those of the underwriters.
It is highly desirable, in justice to the underwriters, that
tmly the damaged goods should be sold, the sound portion be¬
ing selected from them.
CHAPTER VI.
INSURABLE INTEREST.
What is the meaning of the words " insurable interest " ?
The interest which it is necessary for every one to have, before
he can effect an available insurance on his own account or for
his own benefit, is called an insurable interest.
Is it not essential to every contract of insurance, that the assured
has an interest at risk ?
The assured must have an interest in the subject of insur¬
ance; and this interest must be at risk.
If he has no interest, or if his interest is not at risk, he can
be liable to no loss, and accordingly there is nothing, against
which the underwriter can agree to indemnify him.
As insurance is essentially a contract of indemnity, the in¬
surer can be called upon only to make good a loss sustained.
What kind of interest may be insured ?
It is not essential that the thing to which insurance relates,
INSURABLE INTEREST.
53
or the interest of the assured, should he a species of property
subject to possession, or that the interest should be that of ab¬
solute ownership.
Interest does not necessarily im]3ly a right to the whole, or a
part of a thing, nor necessarily or exclusively that which may
be the subject of privation, but the having some relation to, or
concern in, the subject of insurance, which relation or concern,
by the happening of the perils insured against, may be so affect¬
ed as to produce a damage, detriment or prejudice to the person
insuring.
The interest may be absolute or contingent, legal or equita¬
ble. It may exist in the assured not only as absolute owner,
but also in the character of mortgagor or mortgagee, borrower
or lender, consignee, factor or agent, and may arise from profits,
freight or commission, or other lawful business.
In order to constitute an insurable interest against any peril,
it must be such an interest that the peril may have a direct
effect upon it, instead of a remote, circuitous, consequential
effect. Tiiat is to say, the interest must be a direct one, in ref¬
erence to the perils insured against. Phil, on Ins., vol. 1,175.
In order to entitle the assured to recover on the policy, is it ne¬
cessary that the interest, in respect of which the insurance is effected,
was an interest subsisting at the time of the loss ?
It is ; but it is not necessary that the interest be subsisting
at the time of effecting the policy. Lane v. Marine Mutual F.
Ins. Co. 12, Maine, 44.
Can the assured, who lias been interested during the risk, but
has parted with his interest before loss, recover on the policy ?
54
MARINE INSURANCE AND AVERAGE
He cannot
But if he have not parted with his interest till after loss} can he
recover?
He can.
Has a person who pays for repairing a vessel, by force of that
fact, an insurable interest in her?
He has not. The repairs become a part of the vessel, and
having no lien for the money expended, he has no insurable
interest. Buchanan v. Ocean Ins. Co., 6 Cowen, N. Y., Rep. 318
Advances for repairs of a ship give no insurable interest in
it, unless when secured by a lien by law or contract.
Has a creditor, merely as such, any insurable interest in the
property of his debtor ?
He has not.
What is the rule as to insurable interest in profits or commis¬
sions ?
The rule has been adopted by the Supreme Court of the
United States, that the fact of being interested in the profits
constitutes an insurable interest, without proof that there would
INSURABLE INTEREST
55
have been a profit had the voyage not been interrupted by the
perils insured against. Patapsco Ins. Co. v. Coulter, 3 Peters'
S. C. It. 222. Commissions as to their insurability, stand on
the same ground as profits.
Has the lender on bottomry an insurable interest in the safety
of the ship ?
Where money is lent on bottomry, it is understood that if
the ship is lost, the lender loses also his whole money; but if
the ship arrive in safety, then he receives back the principal,
and also the premium or maritime interest agreed upon, how¬
ever much it may exceed the legal rate of interest. There is
greater reason, therefore, why the lender on bottomry should
have an insurable interest in the thing pledged, than that a
mortgagee should have such an interest; for, if the property is
lost, he loses his debt, whereas a mortgagee still has his claim
subsisting against his debtor. It has always been held that
the lender has an insurable interest in the ship or goods hy¬
pothecated.
But the insurable interest of a party to whom property is
hypothecated will depend upon the validity of the hypothecation.
Has the borrower on bottomry an insurable interest in the safety
of the ship?
The borrower on bottomry and respondentia, has no insura¬
ble interest, except in the surplus by which the value of the
hypothecated property exceeds the amount of the loan.
If, therefore, goods are hypothecated for the full value, the
56
MARINE INSURANCE AND AVERAGE.
borrower is not interested in their safety, as far as the risks are
assumed by the lender; for if they are lost by the risks, within
the hypothecation, he is discharged from the debt. He is ac¬
cordingly interested only so far as the value of the property
exceeds the amount for which it is pledged.
For instance, if a ship valued at $20,000, be hypothecated for
the sum of $15,000, then the lender may procure insurance on
her for the last mentioned sum, and the borrower,-or owner of
the ship, can only procure insurance for the surplus value of the
same, to wit, the sum of $5,000.
Have Consignees, Factors, or Agents, an insurable interest ?
A consignee, factor or agent, having a lien on goods, to the
amount of his advances, acceptances and liabilities, stands in
this respect precisely in the situation of a mortgagee.
À debt is due to him from his principal, for which he holds
the property as collateral, security, and the property is at the
risk of the principal, as the debt would still subsist, though the
property should be lost ; and the excess over the proceeds of
the goods would be still due to him, in case of the proceeds
being insufficient to satisfy his claim. He has therefore an in¬
surable interest in the goods to the amount of his lien. Phil¬
lips on Ins. vol. 1, 309. Yan Natta v. Mut. Security Ins. Co. 2
Sandford, 490.
There are different kinds of consignees ; some have a power
to sell, manage and dispose of the property, subject only to the
rights of the consignor ; others have a mere naked right to take
possession ; and others, though not intrusted to sell, are yet in¬
terested in the property, as having a lien or claim upon it for
their advances. The rights of these different kinds of con¬
signees to effect an insurance, must vary with the various rela¬
tions in which they stand to the property and to the consignor.
INSURABLE INTEREST,
»
57
"Mere naked consignees," says Mr. Arnould, " not intrusted
to sel], nor having a lien for advances, have no insurable in¬
terest so as to enable them to insure in their own names, and
on their own account, though they may, under certain circum¬
stances, insure on account of the consignor, without orders from
him to that effect," and he adds " but consignees having a lien,
or indorsees of the bill of lading, to whom a general balance is
due, have an insurable interest to the extent of their claim."
A commission merchant, to whom goods are consigned for
sale, has an insurable interest to the amount of his commissions
on the sale, from the time of the goods being consigned to him.
He may make insurance in anticipation of the consignment being
made, and the goods becoming subject to the risks insured against.
Putnam v. Mercantile Marine Ins. Co., 5. Mete. 386. Mr. Jus¬
tice Hubbard, in delivering the opinion of the court, said " the
law of insurance has been most reasonably extended to embrace
within its provisions, cases where the parties, having no owner¬
ship of the property, have a lien upon it, or such an interest
connected with its safety and its situation, as will cause them
to sustain a direct loss from its destruction or from its not
reaching its proper place of destination. Such rights have
received protection, and the expectation of profits, the loan upon
mortgage or respondentia, the advances of a consignee, an agent
or factor, and the commissions of a master or supercargo, are
all now well recognized subjects of insurance"
Has the master of a vessel, in his character as master, any in-
sur able interest in the ship, cargo or freight ?
The master of a vessel, is merely a carrier, and in his capacity
of master merely, has no general insurable interest in the ship,
cargo, or freight. Barker v. Marine Ins. Co., 2 Mason's R. 869.
A master, however, may insure his commissions, his wages,
58
MARINE INSURANCE AND AVERAGE.
or the freight of goods carried by him 011 his privilege. Hol-
brook v. Brown, 2 Mass., 280. Foster v. Hoyt, 2 Johns Cas. 327.
If the master sails the vessel on shares, he has an insurable
interest in the freight to the amount of his share, and his in¬
debtedness on account of the freight in addition. Haines v.
Howe, 40 Maine, 181.
Has the charterer of a ship an insurable interest ?
If the charterer of a ship contracts to pay the owner for the
ship, in case of loss, he has an insurable interest in her, and
may effect insurance upon her in his own name. Bartlett v.
Walter, 13 Mass., R. 267.
What is the insurable interest of Mortgagor and Mortgagee?
The mortgagor has clearly an insurable interest in the mort¬
gaged property, and that to its full value ; for in case of loss
he would not only be deprived of the thing insured, but be
compelled also to pay the mortgage debt. Alston v. Campbell,
4 Brown, P. C. 476; Locke v. North American Ins. Co., 13
Mass. 61; Hibbert v. Carter, 1 T. R. 745; Lazarus v. Common¬
wealth Ins. Co., 19 Pick. 81; Higginson v. Dall, 13 Mass., 96.
A mortgagee has insurable interest in the mortgaged proper¬
ty to the amount of his claim. Traders5 Ins. Co. v. Robert, 9
Wend., 404; Carpenter v. Washington Ins. Co. of Providence,
16 Peters5 Ct. R. 495. 4 Howard's Sup. Ct. R. 185.
Where a mortgagee, or one having a lien, insures his own
interest in property, a payment of a loss to him by the insurers
does not discharge the debt, for which the mortgage or lien is
the security. The want of privity between the mortgagor and
the insurers is a conclusive objection to the mortgagor's claim
INSURABLE INTEREST.
59
to such discharge. iEtna Fire Ins. Co. v. Tyler, 16 Wend. 385,
397.
Where the mortgagee insures solely on his own account, it is
but an insurance of his debt ; and if his debt is afterwards
paid or extinguished, the policy ceases from that time to have
any operation; and even if the premises insured are subse¬
quently destroyed by fire, he has no right to recover for the
loss, for he sustains no damage thereby. Carpenter v. Provi¬
dence Washington Ins. Co., 16 Peters' 495, 501.
Where the mortgagee is trustee for the mortgagor, or where
the mortgagor causes insurance to be made on the premises
payable to the mortgagee in case of loss, or where the mort¬
gagee effects insurance at the expense of the mortgagor with
his consent, payment by the insurers would go in discharge of
the debt. King v. State Mut. F. Ins. Co., 7 Cush. 1, 4.
A payment by the insurers to a mortgagee for damage to the
mortgaged premises by fire, under a policy originally made in
favor of the mortgagor, and by him assigned to the mortgagee,
as collateral security for the debt, is so far satisfaction of the
debt. Robert v. Traders' Ins. Co., 17 Wend. 631.
As the mortgagee's motive in insuring is to preserve his se¬
curity, and as the insurance must be construed to be made with
express reference to the mortgage interest, whether specified or
not; a question arises whether upon the happening of loss, and
payment thereof to the mortgagee (he having insured for his
own benefit, and paid the premium out of his own funds), the
insurers can demand from him a transfer of the mortgaged
debt? The legal rights of the insurers and the assurers in this
respect have not been satisfactorily defined by the courts, as
will be found on reference to the decisions above cited. But I
thinh, that, whether the interest is specified or not, the insur¬
ers upon the payment of loss, are entitled to have secured to
them, the debt of the mortgagor, or some portion of it corre¬
sponding to the amount insured. And until this question re¬
ceives clear and final adjudication from the courts, it is desira¬
ble, to avoid litigation, that the assured, by a special clause in
60
MARINE INSURANCE AND AVERAGE.
the policy, be held hound, in case of loss and payment thereof,
to transfer the mortgage debt to the insurers. The engagement
of the insurers is merely to stand in the place of the assured,
and to incur the same risks as he is incurring. The whole law
of insurance is indemnity, one of the principles of which is,
that insurers who pay a total loss are subrogated to all the
rights, interests and claims of the assured, in or about the in¬
terest insured. And all the ends of indemnity can be best
gained if the assured is held bound to transfer the mortgage
debt to the insurers. King v. State Mut. F. Ins. Co., 7 Gush. 1,
per Shaw, C. J. Carpenter v. Pro v. Wash. Ins. Co., 16 Peters'
495, 501, per Mr. Justice Story. fEtna Ins. Co. v. Tyler, 16
Wend. 885, 897. Kernochan v. New York Bowery F. Ins. Co.,
5 Duer 1, 17 N. Y., 428.
The following clause is very frequently inserted in fire poli¬
cies on mortgaged property, viz.: "It is agreed, that whenever
the company shall pay the mortgagee any sum for loss under
said policy, and shall claim that, as to the mortgagor or owner,
no liabilty therefor existed, it shall at once be legally subro¬
gated to all the rights çf the mortgagee under all the securi¬
ties held as collateral to the mortgage debt, to the extent of
such payment, or, at its option, may pay to the mortgagee the
whole principle due, or to grow due on the mortgage, with in¬
terest, and shall thereupon receive a full assignment and transfer
of the mortgage and all other securities held as collateral to the
mortgage debt; but no such subrogation shall impair the right
of the mortgagee to recover the full amount of his claim."
CHAPTER VIL
OF PRIOR INSURANCE, DOUBLE INSURANCE AND RE¬
INSURANCE.
The marine policies of this country, usually contain a clause,
to the effect, that " if the assured has made any other insur¬
ance upon the subject insured, prior in date, the underwriters
shall be answerable only for so much as the amount of such prior
insurance may be deficient towards fully covering the property."
Under this provision, the amount of interest, in respect to a
subsequent policy against the same risks, is the excess of the
value over the amount insured by the previous policies ; i. e.,
a second policy insures only the uninsured excess of interest
remaining after the first; the third policy the same excess re¬
maining after the second ; and so on.
The different underwriters are by this provision made sure-
*
ties for each other; and the assured, by getting insurance on
property already insured, in fact gets insurance on his insurer.
Under this clause, the usage in New York, appears to be, that
where there are two or more policies on the same cargo and risk,
of different dates, and interest to supply them all, if a partial
loss takes place while all the goods are on board, the several
policies contribute in proportion to the sum insured by each
policy. Am. Ins. Co. v. Griswold, 14 Wend. 399.
62
MARINE INSURANCE AND AVERAGE.
In Kent v. Manufacturers5 Ins. Co., 18 Pick. 21, Mr. Justice
Putnam said:—"The clause in relation to prior policies is not
intended to prevent the owner from procuring subsequent poli¬
cies upon the same vessel. It is not introduced for the purpose
of rendering the subsequent policies null and void. On the
contrary, it supposes that they may be lawfully made; and the
clause regulates the extent of the liability which the under¬
writers upon the subsequent policies incur. If, for example,
the subsequent policy covers the same vessel, voyage and risks,
as were covered by the prior policy, the assured would not by
the terms of the contract be entitled to recover any thing upon
the subsequent policy. Such was the case of Seamans v. Lor-
ing, 1 Mason 127. But if part of the voyage was protected by
the prior policy, and the second policy should in terms embrace
the whole voyage, the underwriters upon the second policy
would be liable for. the loss sustained in that part of the voy¬
age not covered by the first policy.55
If the subsequent policy contain no provision in respect to
prior insurance, the assured may insure with different under¬
writers to any amount, if he will pay the premiums, and recover
indemnity from any of the underwriters whom he may elect to
sue. But the assured can recover only the real amount of his
loss, to which all the underwriters shall contribute in propor¬
tion to their several subscriptions. Lucas v. Jeff. Ins. Co., 6
Cowen 685.
Where there is the usual clause respecting prior insurance, it
does not apply if the policies are simultaneous ; for in that case
all are liable, but pro rata* 2 Mason 475. 18 Pick. 145. They
are held to be simultaneous, if, as is sometimes done, the poli¬
cies so state ; or if they bear date the same day, and there is no
evidence of any difference in the time of their making. But
although dated and made on the same day, if they are not de¬
clared to be simultaneous, it may be shown by evidence that
one was made before the other, and they are then not simulta¬
neous. 2 Mason 475.
Under the head of valued policies, we have already examined
PRIOR INSURANCEj DOUBLE INSURANCE AND RE-INSURANCE. 68
the effect of valuation in the policy, in ascertaining the amount
to which a second or subsequent policy is applicable.
There is no double insurance, or over-insurance, unless all
the policies insure the very same subject-matter, against the
same risks, and the whole amount insured exceeds the value of
the whole subject-matter. Perks v. N. Eng. Mar. Ins. Co., 12
Mass. 214, 218. Howard Ins. Co. v. Scribner, 5 Hill, 298.
A double insurance is a totally different thing from a re-in-
suranee. The latter is effected by the underwriter to secure
himself from having to pay a loss. Mr. Phillips, in his valua¬
ble treatise on Insurance, vol. 1, page 207, defines re-insurance to
be "a contract whereby one party, called the 6re-insurer', in
consideration of a premium paid to him, agrees to indemnify
the other against the risk assumed by the latter, by a policy in
favor of a third party."
Every insurer has an insurable interest for re-insurance. The
re-insurance may be against all or a part of the risks that have
been assumed by the re-insured in the original policy in which
he is the insurer.
An underwriter, by subscribing a policy, acquires no property
in the subject insured, yet he acquires an insurable interest,
and, having rendered himself directly liable to loss from cer¬
tain perils, may stipulate to be indemnified against those perils.
His interest, however, exists only in relation to the perils against
which he has insured in the original policy.
CHAPTER VIIL
OF REPRESENTATION AND CONCEALMENT.
What is understood by the term representation, as it relates to
a policy of insurance ?
A representation in insurance is the communication of a fact,
or the making of a statement,'by one of the parties to a con¬
tract of insurance to the other, in reference to a proposal for
their entering into the contract, tending to influence his esti¬
mate of the character and degree of the risk to be insured
against. Phillips on Ins. 524.
Mr. C. J. Marshall, in Livingston v. Maryland Ins. Co.,
7 Cranch. 535, says: "To constitute a representation, there
should be an affirmation or denial of some fact, or an al¬
legation which plainly leads the mind to an inference of a
fact."
Mr. Arnould states a representation, in the technical sense
which the word bears in the law of insurance, to be :—" A ver¬
bal or written statement made by the assured to the underwri¬
ter, before the subscription of the policy as to the existence of
some fact or state of facts, tending to induce the underwriter
more readily to assume the risk, by diminishing the estimate he
would otherwise have formed of it."
A fact or statement having such tendency is called a material
REPRESENTATION AND CONCEALMENT
65
fact or statement. One having no such tendency is called im¬
material.
If either party, whether by design, or through negligence,
mistake, or oversight, conceals, or misrepresents a fact material
to the risk, the contract is void with respect to the other party.
But the misrepresentation or concealment must he of a fact
material to the very risk or risks insured against, to work an
avoidance of the policy.
A representation made to an underwriter must be true, or he
is discharged; and if the assured represents facts without
knowing the truth, he takes the risk upon himself.
If the assured, or his broker, omits to state a material cir¬
cumstance, supposing it not to be material, this discharges the
underwriter.
If an underwriter insures a vessel that he knows to have ar¬
rived, the policy is void.
The representations ought to be reduced to writing, and
signed by the parties. If an insurance broker makes re¬
presentations that he ought not to have made, he is lia¬
ble for the damages that may ensue therefrom to his princi¬
pal.
Where there is a misrepresentation, the insurance is for all
purposes null and void, and not voidable only. Clark v. New
England Mut. F; Ins. Co., 6 Cush. 842.
If the assured states a mere expectation or opinion, or ex¬
presses himself in a qualified or doubtful manner, yet at the
same time fairly, but without any absolute assertion of a fact,
it is not a representation, and does not avoid the policy. 2
Duer on Ins. 644.
It is a misrepresentation under the law of insurance, when it
is false, whether intentionally so or not, and tends to obtain
for the party uttering it some advantage in the bargain, or an
entering into the bargain by the other party. And it has the
same effect whether made in reference to a matter concerning
which some representation is necessary or otherwise. Sawyer
v. Coasters' Mut. Ins. Co., 6 Gray 221.
66
MARINE INSURANCE AND AVERAGE.
What is the general rule as to what facts are necessary to be
disclosed in a representation ?
That it is the duty of the assured to communicate every spe¬
cies of intelligence which he possesses, which may effect the
mind of the insurer, either as to the point whether he will in¬
sure at all, or as to the rate of premium.
The contract of -insurance is one of mutual good faith; and
the principles which govern it are those of an enlightened moral
policy. The underwriter must he presumed to act upon the
belief that the party procuring insurance is not at the time in
possession of any fact material to the risk, which he does not
disclose; and that no known loss had occurred, which by rea¬
sonable diligence might have been communicated to him. Mc¬
Laughlin v. The Universal Ins. Co., 1 Peters' S. C. E. 185.
The assured is not required to represent facts of general no¬
toriety, or which are presumed to be known to those conversant
with the trade ; but he is required to state fairly and fully other
facts within his knowledge that are material to the risk. If a
knowledge of the circumstances suppressed would have induced
the insurer to demand a higher premium, or to refuse to under¬
write, it will invalidate the policy.
The usages of trade need not be stated, since those, the un¬
derwriter is presumed to know.
If, after giving instructions for effecting a policy, the person
who has given the instructions receives intelligence material to
the risk, he must immediately disclose it, or countermand his
instructions.
If the vessel is known to be out of time, the circumstance
must be stated to the underwriters.
If the time of sailing be incorrectly stated, so as to make the
underwriters believe that the vessel is not out of time, when in
fact she is out of time, the policy will not bind them.
One of the tests, and certainly a decisive test, whether a mis¬
representation or concealment is material to the risk, is to as¬
certain whether, if the true state of the property or title had
REPRESENTATION AND CONCEALMENT.
67
been known, it would have enhanced the premium. If it
would, then the misrepresentation or concealment is fatal to
the policy. Columbian Ins. Co. v. Lawrence, 1 Peters' S. C.
Rep. 516.
What is understood by the term concealment, as it relates to a
policy of insurance.
Concealment in the law of insurance, is the suppression of a
material fact unknown to the other party, which refers to the
pending bargain, and is material to its terms. Maryland Ins.
Co. y. Ruden, C. Cranch. 388. Hurtin v. Phoenix Ins. Co., 1
Wash. C. C. 400.
In marine insurance, the misrepresentation or concealment
by the assured of a fact material to the risk, will avoid the poli¬
cy, although no fraud was intended. Burritt v. Saratoga M. F.
Ins. Co., 5 Hill 188. Curry v. Commonwealth Ins. Co., 10 Pick.
535. Sawyer v. Coasters' Mut. Ins. Co., 6 Gray 221.
In Clason v. Smith, 3 Waèh. C. C. 156, Washington, J., said:
"A misrepresentation to avoid a policy must not only be false,
but it must be material either in relation to the rate of premi¬
um, or as offering a false inducement to the underwriter to take
the risk at all, when otherwise perhaps he would not have done
it. If, in point of fact, it had no influence, nor ought to have
had any in these respects, it is impossible to say that it was
material."
If the representation is true at the time it is made, subse¬
quent events not caused by the misconduct of the assured, will
not, generally, discharge the underwriter.
Intelligence and rumored facts are equally material to be re¬
presented, and a suppression or misrepresentation of them will
equally defeat the contract, though it turns out that they were
erroneous, and that there did not really exist any circumstance
68
MARINE INSURANCE AND AVERAGE.
tending directly to detemiine the insurer to decline the risk
or demand a higher premium. Phillips on Ins. 588.
A false statement, made knowingly by the assured, in answer
to inquiries of the underwriter, is conclusively presumed to he
material. Burritt v. Saratoga Mut. Fire Ins. Co., 5 Hill 188.
Dennison v. Thomaston Mut. Ins. Co., 20 Maine 125.
All intelligence ought to he communicated to the under¬
writer which may affect his judgment, either: 1st, as to the
point whether he will insure at all ; 2d, as to the point at what
premium he will insure; and this duty attaches at the time of
effecting the policy. Consequently, though the intelligence
concealed may turn out to be unfounded, or the loss may arise
from a cause totally unconnected with the fact concealed, the
policy will nevertheless he void. Lynch v. Hamilton, 8 Taunt.
87, 44.
But the assured is bound to disclose only facts, or intelli¬
gence, and not a mere opinion, or hope or fear of his own, which
does not rest upon some definite fact or ground. Bell v. Bell,
2 Camp. 475.
The principle which must be clearly apprehended and remem¬
bered upon the subject is, that every thing material must be dis¬
closed, and stated truly; and that to determine whether any fact,
actual or rumored, is material, we must ascertain whether that
fact would naturally and reasonably enter into the estimate of
risk, or the reasons for or against entering into the contract of
insurance. The whole object of the rules as to representation,
misrepresentation, and concealment, is to enable the insurers to
judge accurately of the risk they undertake.
CHAPTER IX
OF WARRANTIES.
How is a warranty of a policy of insurance regarded in law ?
As a condition precedent, that is, a stipulation upon the strict
compliance or non-compliance with which the validity of the
policy depends. No substantial compliance with the warranty,
or performance of an equivalent act, will avail the insured, or
render the underwriter liable, if the express terms of the con¬
tract be infringed.
O
Of what two kinds are warranties ?
}
Either express or implied. An express warranty must be re¬
duced into writing, and forms a part of the policy itself ; an
implied warranty is that which results by mere operation of law
from the relative character and situation of the assured and un¬
derwriter. Thus a warranty inserted in the policy, that the
ship is neutral property, is an express warranty; a»warranty
that the ship is seaworthy, is implied ; that is, annexed to every
policy by application of law, without any express stipulation.
70
MARINE INSURANCE AND AVERAGE.
Of Express Warranties generally—their Form, Construction,
and Mode of Fid filment.
An express warranty is a stipulation inserted in writing on
the face of the policy, on the literal truth or fulfilment of which
the validity of the entire contract depends. 3 Kent, oth ed. 288.
' An express warranty or condition is always a part of the
policy, hut, like any'other part of the express contract, may be
written in the margin, or contained in proposals or documents
expressly referred to in the policy, and so made a part of it.
Phillips on Ins. 756.
A warranty is often made by saying expressly in the poliey,
that the assured warrants sueh a fact. But a formal expression
of this sort is not requisite to constitute a warranty. Any di¬
rect or even incidental allegation of a fact relating to the risk,
has been held to constitute a warranty.
A warranty differs from a representation in that, the former
must be strictly and literally complied with ; whereas it is suf-
ficent that the latter is complied with equitably and substan¬
tially. It is held that the intention of the parties in a warranty,
except as to the meaning of the words used, is not to be inquir¬
ed into; the insured has chosen to rest his claims against the
underwriters on a condition inserted in the contract, and
whether.the fact or engagement which is the subject of the
warranty be material to the risk or not, still he must bring
himself strictly within that condition.
A non-compliance with a warranty, though it occasions no
damage, and does not change or increase the risk, has the effect
of discharging the underwriters from their liability.
As any statement of a fact in the policy is a warranty, though
neither the word warrant, nor any formal expression of like im¬
port is used ; so there is frequently a warranty in form of ex¬
pression, where there is none in fact. The assured often "war¬
rants" the property "free from average," "detention," or "cap¬
ture," or from other losses and perils, which is no more than an
agreement that those shall not be among the perils and losses
ËXPÊESS WARRANTIËS.
71
insured against, and for which the underwriter is to he liable.
Although these forms of expression are sometimes spoken of as
warranties, it would be absurd to consider them such in their
character and construction, since, in the case of an insurance
"free from average," for instance, it would be adopting the doc¬
trine that the occurrence of an average loss would render the
policy void. Phillips on Ins. 760.
A stipulation in a policy upon a ship, that the insurers are
not to be " liable to any damage to or from her sheathing," was
held, in Massachusetts, not to be'a warranty that the ship was
sheathed or should be kept so, but merely an exoneration of
fhe insurers from all loss and damage to or on account of the
sheathing. Martin v. Fishing Ins. Co., 20 Pick. 389.
If the warranty is of a fact that is not to occur until after the
commencement of the risk, and the loss occur before the war¬
ranty is complied with, it is no breach which discharges the
insurers, nor is it such a breach, if a compliance with the war¬
ranty was legal when it was made, but becomes illegal after¬
wards; for the law never requires that an illegal act should be
be done. Parsons on Maritime Law, vol. 2, page 108. Phil¬
lips on Ins. 771. Hendricks v. Com. Ins. Co., 8 Johns 1. Tay¬
lor v. Lowell, 3 Mass. 331, 347 ; and see Arnould on Ins. 583.
The warranties that most frequently occur in policies of insur¬
ance, are 1st, Warranty of Ownership; 2d, Warranty of neu¬
trality; 3d, Warranty of the time of sailing; 4dh, Warranty to
sail with convoy; olh, Particular warranties and stipulations;—
and we will consider them in their order.
ls£. Of the Warranty of Ownership.
The insurers have the right of personal selection ; they may
be willing to insure for one person and not for another; and
therefore the usual clause, that the policy shall be void if as-
72
MARINE INSURANCE AND AVERAGE
signed without their consent, is certainly valid, whatever may
be the right of transfer in the absence of this clause.
2d. Of the Warranty of Neutrality.
The most usual cause of requiring a warranty of ownership,
occurs where this is done in order to make it certain that the
property is neutral, or at least to prevent the underwriters from
assuming any risk arising from the belligerent character of thç
property.
A warranty that the ship or goods are neutral or neutral
property, is an engagement on the part of the assured, that it
is owned by persons resident in a country at peace when the
risk begins, and who have the commercial character of subjects
of such country, arid that it shall be accompanied with such
documents, and shall be so managed and conducted by the as¬
sured and their agents, as to be entitled, as far as depends on
them, to all the protection and privileges of property belong¬
ing to the subjects of such country. Phillips on Ins. 788.
Under this warranty, the cargo must be accompanied by proof
of its national character; the invoices, bills of lading, the letters
relating to the goods, and the certificates of consuls or other
officers, must all be consistent with, and confirm, the warranty.
Griffith v. Ins. Co. of North America, 5 Binn. 464.
If the neutral or national character of the property be not
exuresslv warranted, but some fact is warranted, or so asserted
*■ % ' '
as to amount to a warranty, and this fact, if true, would neces¬
sarily imply the neutrality of the property, then that neu¬
trality is warranted. Walton v. Beth line, 2 Brev. 458.
V /
As the warranty of neutrality of property requires actual
neutral ownership, and proper proof of this, so it requires such
trade, conduct, and course of transaction as shall be in confor¬
mity and adaptation to this warranty. And, therefore, if the
EXPRESS WARRANTIES.
73
neutral interests or property are undistinguishably mixed up
with, belligerent interests or property, they become liable them¬
selves to all the incidents and effects of a belligerent character.
Parsons on Maritime Law, vol 2, p. 116.
In respect to contraband goods, the general doctrine of Prize
Courts is, that they are liable to capture and condemnation
when found on board a neutral ship; but they do not affect
other innocent goods found on board, unless they belong to the
same owner. If they do so belong, they also are liable to con¬
fiscation. 1 Rob. 26. So, if the ship belong to the same own¬
er as the contraband goods, she is also liable to confiscation.
3 Rob. 295.
The law of nations in respect to neutrality is controlled to a
considerable extent by treaties, between different countries, the
terms and provisions of which must be strictly complied with.
As to what articles are contraband, and what particular acts,
trade, etc., is held by belligerents to be unlawful; the reader
is referred to Chitty on the Law of Nations, and Wheaton on
Captures.
8d. Warranty of the time of Sailing,
Probably one of the most important of all express warranties,
is that which either alleges that the ship has sailed, or that she
will sail on, before, or after a given day.
A vessel has sailed, the moment she weighs anchor or casts
off her fastenings and gets under way, in complete preparation
for the voyage, with the purpose of proceeding to sea, without
further delay at the port of departure.
The ship must be actually moving, with the intention of pros¬
ecuting her voyage.
A warranty to sail on or before a particular day is not com¬
plied with by leaving the harbor on that day, without having
u
MARINE INSURANCE AND AVERAdË.
a sufficient crew on board, although the remainder of the crew
are engaged, and ready to come on hoard. Pettegrew v. Prin-
gle, 3 B. & Ad. 514.
If the ship has broken ground on her sea voyage, and once
got fairly under sail for her place of destination, though she
may have gone only a little way, and she afterwards put back
from stress of weather, or is in any way afterwards detained,
yet, as there will have been a beginning to sail on the voyage
insured, the warranty will be held to have been complied with.
Boven v. Hope Ins. Co., 20 Pick. 275. Union Ins. Co. v. Tysen,
3 Hill 118.
It is a disputed question, whether, if a vessel is warranted to
sail on or before a day named, and is completely ready to sail
on that day, but is prevented from starting by stress of weather
or other extraordinary inevitable peril or restraint, not except¬
ed in the policy, and afterwards sails without unnecessary de¬
lay, the warranty is complied with.
Mr. Phillips, in his valuable treatise on Insurance, page 440,
after citing numerous decisions, which do not altogether har¬
monize, expresses his own opinion, which seems to us the cor¬
rect one, that "if the risk has previously commenced under the
policy, and the vessel is wholly ready to depart by the time
warranted, so far as the fitting out, loading, manning and clear¬
ing out, and all other preparations and preliminaries to the
actual departure, depending upon the assured, are fully com¬
pleted and nothing hinders her sailing but some peril insured
against by the policy, or which, if it had occurred at any sub¬
sequent stage of the voyage would not have discharged the un¬
derwriter, the warranty to sail is complied with, unless a differ¬
ent construction is expressly indicated by the policy. But if
the risk is to commence only at the sailing of the ship, and the
assured is responsible for, and the underwriter free from, all
preceding risks, perils and losses, then the warranty is not
complied with unless she actually sails within the time war¬
ranted."
èxprëès warranties*
75
4dh. Warranty to Sail with Convoy.
A warranty to sail or depart with convoy, is understood to
mean that the ship shall sail with the convoy appointed by
government for the voyage; and, if convoy is usually furnished
for only a part of the voyage, it is no breach of the warranty to
perform the remainder without any convoy.
It is generally necessary to obtain sailing orders, because with¬
out them the master cannot answer signals, or know the place
of rendezvous in case of a storm, and he does not in effect put
himself under the protection of the convoy, and therefore the
underwriters are not benefited.
If a vessel neglects to obey sailing orders in starting, this is
a breach of the warranty. Not only must a vessel sail with
the convoy, but it would seem that she must start as soon as
possible, and if she delays, and is lost in consequence thereof,
the underwriters are exonerated, although some of the vessels
started after she did. If the fleet is dispersed by a storm, the
vessel assured may run immediately for her port of destination.
So if she is driven back to the port of clearance, she may sail
again without waiting for a convoy from that port, or joining
one at another port. And it has been held, that if, after the
vessel has once joined the convoy, she is separated and lost,
the underwriters are liable unless the separation was caused by
the wilful fault of the master. Parsons on Maritime Law, vol.
2, page 124, and cases there cited.
5th. Particular Warranties and Stipulations.
A great variety of warranties and stipulations are occasion¬
ally introduced into policies of insurance, which are not un-
frequently the result of litigation. It is impossible to enum¬
erate these several stipulations, or to lay down any definite
76
MARINE INSURANCE AND AVERAGE.
rules regarding them. It may be observed, however, that no
cause, however sufficient; no motive, however good; no neces¬
sity, however irresistible, will excuse non-compliance with an
express warranty ; if it be not in fact complied with, though for
the best reasons, the jDolicy is void.
A warranty, like every other part of the contract, is to be
construed, as to the terms it employs, according to the under¬
standing of merchants, and does not bind the insured beyond
the commercial import of the words.
CHAPTER X.
OF IMPLIED WARRANTIES.
What is the definition of an implied warranty ?
An implied warranty, condition, or stipulation, is an agree¬
ment not expressed in the policy, but presumed from the fact
of Ibiaking insurance.
The warranties implied in every policy of insurance, are sea¬
worthiness, proper documentation, and not to deviate.
What is understood by warranty of Sea-worthiness?
There is in every policy an implied warranty that the ship is
sea-worthy when the policy attaches. This means, that the ves¬
sel is competent to resist the ordinary attacks of wind and
weather, and is competently equipped and manned for the voy¬
age, with a sufficient crew, and with a sufficient means to sus¬
tain them, and with a captain of general good character and
nautical skill.
There is nothing in the law of marine insurance more im¬
portant, both with a view to the benefit of commerce and the
78
MARINE INSURANCE AND AVERAGE
preservation of human life, than to enforce, as far as possible,
a strict compliance with this warranty ; as otherwise the effect
of insurance might be to render those who were protected from
loss by the policy exceedingly careless about the condition of
the ship, and the consequent safety of the crew.
The courts, accordingly, have held that the sea-worthiness of
the ship for the voyage, when she sails, is a condition precedent
to the underwriter's liability for .any loss incurred in the course
of the voyage. Deshon v. Merchants' Ins. Co., 11 Metcalf 199,
207. Arnould on Ins., vol. 1, § 243.
Any defect which may endanger the ship, though unknown
to the assured, will discharge the underwriters. It is not ne¬
cessary to inquire whether the owners acted honestly and fairly
in the transaction ; for it is well understood, that however just
and honest the intentions and conduct of the owner may be, if
he is mistaken in the fact, and the vessel is really not sea¬
worthy, the underwriters are not liable.
It is the duty of the assured to keep his vessel sea-wor
during the voyage, if it be in his power to do so. If, therefore,
she is disabled at sea, though she remains covered by the policy
until she reaches a port, she must leave that port, wherever it
may be, in a sea-worthy condition, provided she can there be
made sea-worthy.
The warranty of sea-worthiness, although most important
among those implied by law, is not the only one. Another is,
that the assured is to make a distinct and honest statement of
all material circumstances attending the risk. Another, that
the ship shall pursue the course of her voyage in the usual
manner, without deviation or risk.
What is Deviation as understood in a 'policy of insurance ?
Deviation means a voluntary departure without necessity, or
IMPLIED WARRANTIES.
79
any reasonable cause, from the regular and usual course of the
specific voyage insured ; or it is a varying of the voyage ; and
it matters not whether the risk is increased or diminished
thereby, the .effect in either case being the same—to terminate
the responsibility of the underwriters.
It is not necessary to prove that the risk has been enhanced
by the delay, or deviation. The underwriter only undertakes
to indemnify the assured upon the implied condition, that the
*
risk shall remain precisely the same as it appears to be on the
face of the policy. Insurance is a contract whereby, for a stip¬
ulated premium, the underwriters agree to indemnify the as¬
sured against certain perils or risks ; and that the contract may
be fair between the parties, the premium must be adequate, or
in due proportion to the risks. But this would be impossible,
unless the risks can be to a certain extent known beforehand,
and therefore estimated. If the insurance is upon a voyage, it
must be distinctly stated; and its course and termini being
known, the underwriters may then judge of the risks to be en¬
countered on that voyage. It is, therefore, always presumed
that the voyage is to be pursued in the most direct and safe
course, and the adventure conducted, in general, in the most
expeditious manner as far as is consisten t with safety ; and if
there be any departure from such course or mode of conducting
the adventure, whereby the risks insured against are varied or
increased, the assured must justify such departure, by showing
either a usage in that respect, or a reasonable necessity.
In practice, a slight change, which does not increase the
risk, is not considered a deviation. The rule is this, if the cus¬
tomary course of ships on that particular voyage, has been so
long established and so well known, that the underwriters are
justified in calculating upon that course, as the one the ship
will, if possible, pursue ; the master must not -deviate from it,
unless compelled to do so from necessity. If there is no such
usual course, then the master is bound to proceed to the des¬
tined terminus in the most natural, direct, safe and advanta¬
geous way.
80
MARINE INSURANCE AND AVERAGE.
An unreasonable and unnecessary delay in commencing a
voyage, where the risk begins with the sailing of the vessel
from the port/ or a similar delay in port, where the insurance is
at and from" a port, and the risk has commenced, or an un¬
usual, extraordinary, and unnecessary extension or protraction
of a voyage, either at sea or in a foreign port, is a deviation,
because it is certainly a change, and indeed an increase of the
risk.
Going into a port which did riot belong to the established, or
the natural and proper voyage, is a deviation; and a very com¬
mon one. So is the entering into a port which does belong
to the voyage, but, by the usual course of it, should not have
been entered at that time, or in that order.
The master must not deviate from his voyage in order to gain
profit by towing or assisting other vessels that may be glad of
aid. The laws of humanity, however, over-ride all other regula¬
tions, and a master is justified m deviating where there is a
great necessity, as in order to pick up the crew of a wrecked or
burning vessel, or in lending aid to one in great danger of foun¬
dering, &c. And should the deviating ship itself, under such
circumstances, sustain damage or loss, the underwriters would
remain liable.
* But where the insurance was i( from " a port, it was held that a delay of six months after
the policy was made, it not appearing that the vessel was detained hy fraud or any sinister design,
nor that the risk was thereby enhanced, was not a deviation, the jury have found that the delay
was not unreasonable. Earl v. Shaw, 1 Johns Cas. 313.
CHAPTER XL
GENERAL AVERAGE.
The doctrine of general average contribution is founded upon
the idea of a co-partnership between the owners of ship and
cargo, for mutual protection against the extraordinary perils of
navigation.
Whenever an extraordinary peril is impending over the whole
adventure, and the master, who is the common agent of all
concerned, acting in good faith and with common discretion,
selects a particular part of the property at risk and destroys it,
or exposes it to some special injury or risk, with a view thereby
to avert or mitigate the common danger, the owner of that part
is entitled to satisfaction for his loss by an average contribu¬
tion.
The amount paid by each of the co-adventurers, as his share
of the contribution, is exactly proportioned to the value of his
property, as finally saved by the sacrifice, or at the time it was
benefited by the expenditure ; this sum is ascertained in most
cases directly after the ship's arrival at her port of destination,
and is there assessed upon each of the co-adventurers, who are
in law primarily liable to the party who has suffered by the
loss; if, however, they are insured, they are entitled to claim
from their underwriters the same proportion of the sum in¬
sured in the policy, as the amount assessed upon them by way of
6
82
MARINE INSURANCE AND AVERAGE.
contribution, bears to the whole value of their property, as saved
by the sacrifice. The process by which the amount of damage
is ascertained, and the different sums to be paid in contribution
for it are assessed upon the parties interested, and made good
to them by the underwriters, is called the adjustment of general
average. 1 Magens on Ins., 55; 2 Arnoulel on Ins. 880.
The law of general average, has its foundation in equity.
The principle that " what is given for the general benefit of all,
shall be made good by the contribution of all," is recommended
not only by its equity, but also by its policy, because it en¬
courages the owner to throw away his property without hesita¬
tion in time of need.
Mr. Justice Grier, delivering the opinion of the court in the
case of Ship " Brutus," said : " In order to constitute a case for
general average, three things must concur: 1st—A common
danger; a clanger in which ship, cargo, and crew all participate;
a danger imminent and apparently 6 inevitable ', except by vol¬
untarily incurring the loss of a portion of the whole to save
the remainder. 2d—There must be a voluntary jettison, y acte,
or casting away, of some portion of the joint concern for the
purpose of avoiding this imminent peril, periculi imminentis
evitandi causa, or, in other words, a transfer of peril from the
whole to a particular portion of the whole. 8d—This attempt
to avoid the imminent common peril must be successful." Bar¬
nard v. Adams, 10 How. 270, 808. See also, Sturgis v. Gary, 2
Curtis, C. C. 59, 66.
Mr. Parsons, in his recent and very valuable treatise on Mari¬
time Law, vol. 1, p. 288, says : "If the sacrifice or loss be not
voluntary, the very foundation of the claim is taken away, as
that is the right which he who inflicts upon himself a loss for
the benefit of another, has to compensation. It must be ne¬
cessary, or justified by reasonable cause, for, if it be not, it is
only the wanton destruction of property by those who are in
charge of it, and they or their employers must respond to the
full value of what is lost. It must be successful, for if it does
not save other property or interests, there is in the first place,
GENERAL AVERAGE.
83
no sacrifice, as it may be presumed that the property jettisoned
would have been lost with the rest; and, in the next place, if
no one is benefited by the sacrifice, no one can be called on to
contribute a portion of what was saved for him, in order to
make the loss equal."
What is understood by Jettison ?
Jettison is defined in the Khodian law to be jactus mercium
factus levandce navis gratia, a heaving overboard of the goods in
order to save the ship. It is the most perfect example of a
general average loss, and when made intentionally, for the
sake of saving the whole adventure from imminent danger,
is generally admitted as giving a claim to contribution.
What is required of the master in a case of jettison?
The occasions and circumstances of the jettison ought to be
carefully inscribed in the log-book, together with the exact
quantities of the articles so lost, as far as they can be ascertain¬
ed. The objects thrown overboard, must have been expressly se¬
lected for the purpose ; and care should be taken to throw over¬
board the most weighty and least valuable articles first, if time
and othçr circumstances will permit of the selection being made.
If the case admits of delay, should the master consult with the
officers and crew, before making a jettison?
84:
MARINE INSURANCE AND AVERAGE,
Most of the codes of sea-laws require the master to consult
the officers and crew before making a jettison. Where the oc¬
casion admits of it, the master will naturally consult his offi¬
cers and men, but to subject him to their opinion is so far tak¬
ing the government of the ship out of his hands. And it is
obvious, that in those cases of desperate and urgent danger,
which allow no time for hesitation and discussion, no greater
degree of deliberation should be required than may be neces¬
sary to rescue the measures resorted to from the reproach of
rashness. Mr. Chancellor Kent has thus stated the law on the
subject: "Consultation is not indispensable previous to the
sacrifice. A case of imminent danger will not permit it; but
it must appear that the act occasioning the loss was the effect
of judgment and will ; and there may be a choice of perils,
where there is no possibility of safety." Kent's Comm. (5th
ed.) 233.
If the jettison is rendered necessary from the ship being too
heavily laden to encounter the ordinary perils of the sea, does it
constitute a case of contribution?
The loss, in this case, arises from the wrongful act of the mas¬
ter, and does not constitute a case of contribution.
Where the loss or damage is attributable to the usual chances
and accidents of the voyage, does a subsequent sacrifice consequent
upon such loss or damage, constitute the whole a general average ?
It does not. If there is any contribution it must be propor¬
tioned to the value of the voluntary sacrifice. Hence, when
GENERAL AVERAGE
85
the masts, spars, rigging and sails of a vessel at sea were car¬
ried away by the violence of the weather, and after hanging by
the vessel's side for half an hour, were cut loose for the preser¬
vation of the vessel and cargo, the owners were held not enti¬
tled to contribution, unless, indeed, for the loss incurred in sep¬
arating the masts and rigging from the hull, after they were
carried overboard by the violence of the weather. The contri¬
bution could only be proportioned to the value of those articles,
when thus hanging by the side of the vessel. Nickerson v.
Ivson, 8 Mass. 467.
4/ /
By some adjusters, the value of the wreck itself, as a wreck,
is allowed in general average. But this is not usual in New
York. The first or actual cause of the loss was not voluntary,
but was a loss by a peril of the sea; and although the loss of
the sales and rigging was made absolute and complete by the
act of cutting away the wreck, the true nature of that loss
must be looked for in the original incident, and the cutting
away afterwards must be considered only the consummation of
the inchoate act.
In order to give a claim to a general average contribution, must
the loss be submitted to under the pressure of a real and imminent
danger ?
It is an undoubted requisite of a general average loss that
it should have been incurred under the pressure of a real and
imminent danger. The sacrifice may have been bona fide, made
with a view to the general safety ; but it can give no claim to
contribution unless that safety shall appear to have been
really endangered. I am not bound to make good to another a
loss he has intentionally incurred, with a view to my benefit,
if such loss was one which a man of ordinary firmness and
sound judgment would not, under the circumstances, have sub-
86
MARINE INSURANCE AND AVERAGE.
mitted to. The sacrifice must have been made under the urgent
pressure of some real and immediately impending danger, and
must have been resorted to as the sole means of escaping de¬
struction. Arnould on Ins., § 884.
Where the general safety has not been imperilled, is contribution
due?
Where the general safety of the whole adventure is not im¬
perilled, a loss incurred for the safety of part gives no claim to
contribution.
In the same way, where expenditures appear to have been
made not for the joint benefit of both ship and cargo, but for tKe
benefit either of the ship alone, or of the cargo alone, they can
give no claim to general average contribution, but will be a
charge on the owner of the particular interest benefited thereby.
Must the general safety be the object of the sacrifice ?
It must, and if made with any other object, it can give no
claim to contribution.
Is the freight of jettisoned goods to be contributed for?
In case of jettison of goods, as the ship-owner cannot entitle
himself to the freight of them, since he is prevented from de¬
livering them at the port of destination, this freight is included
general average.
87
in tlie amount of sacrifice,, and must be contributed for. The
Nathaniel Hooper, 2 Sumner's R. 542.
The owner's freight being, so to speak, contained in the
goods, shares the fate of the merchandise, and is jettisoned with
the goods thrown overboard.
(
/
«
Is a jettison of Deck-load usually contributed for in general
average?
Goods shipped on deck contribute if saved, but if lost by jet¬
tison, they are not entitled to the benefit of general average;
for they, by their situation increase the difficulty of the naviga¬
tion, and are peculiarly exposed to peril. Dodge v. Bartol, 5
Greenl. 286; Cram. v. Aikin, 13 Maine R. 229; Hampton v.
Brig Thaddeus, 4 Martin, N. S. 582.
On proof, however, that they are so carried according to the
common usage and course of trade on the voyage for which
they are shipped, they are contributed for, if jettisoned, like
other goods; and no notice to the underwriters of the existence
of such custom is necessary in order to make them liable, they
being bound to know the usage of the particular trade. Taun¬
ton Copper Co. v. Merchants' Ins. Co., 22 Pick. 108, 113 to 115.
Were the consenting parties alone concerned, viz., the ship¬
owner who takes a deck-load and the merchant who ships it,
there would probably be but little dispute, because each would
be cognizant of the risk he thereby incurred,—the one of losing
his goods, the other of losing his freight, and both of them im¬
periling the entire joint adventure. But there are two other
classes of persons whose interests may be injured by this pro¬
ceeding. 1st—There may be shippers of goods below -deck to¬
tally unconnected with the proprietor of the goods on deck,
and perhaps ignorant when they sent their property on board
of the intention of carrying any deck cargo. They will urge
88
MARINE INSURANCE AND AVERAGE.
that in case the deck-load is thrown overboard, although for the
general preservation, they must not be called upon to contribute
to the loss, inasmuch as they never assented to goods being
placed on board in an extra-dangerous situation at their risk;
but, on the contrary, that they are the injured parties by the
general increase of danger caused to the whole of the interests
through carrying a deck-load at alb They will, at most, consid¬
er themselves unconcerned in the<fate of goods on deck, whether
they be safe or lost; and will not consent to contribute to re¬
instate the loss of them, although admitted to have been vol¬
untary and determined on to relieve the ship when she was in
danger. 2d-—The underwriter's interest, though in general
terms concurrent wi th that of the parties whose property is
by them insured, is not in ail respects identical. And though
the original parties to a jettison of deck-load might have to pay
their proportion, the underwriters, unless their consent to risk
of deck cargo had been specially obtained previously, would
object to contribute towards the jettison of such goods, whether
they have insured the cargo itself, the ship, or the freight.
They object to it as an additional and unwarrantable risk; one
not contemplated in the rate of premium they ordinarily charge.
Deck-load, is, therefore, usually at its own risk, and must pay
its own charges; these are called special charges, and must be
deducted from the net value before contributing to the general
average.
Deck-load, though not contributed for in general average
when sacrificed, must contribute for the sacrifice in addition to
its own special expenses or charges.
Is the cutting or slipping of the cable, for the purpose of putt
ting to sea on account of the danger of going ashore, or running
foul of other vessels, or to avoid any other impending peril, a sub¬
ject of contribution ?
GENERAL AVERAGE
89
When a ship at anchor is in danger of driving on a lee shore,
during a gale; or when another vessel riding near her, is driv¬
ing towards her, and a collision becomes probable, or when in
violent weather it becomes necessary to leave an anchorage, it
being no longer safe to remain there, and it is found impossible
to weigh the anchors ; or when to extricate a vessel that has
got ashore, her anchors and cables have been carried out for the
purpose of heaving her afloat;—-when in any of these cases the
general safety is secured by slipping from or cutting away the
ground-tackle, such loss is to be made good in general average.
The ropes or chains must really have been cut or slipped for
that purpose; and there must have been some reasonable ex¬
pectation that their sacrifice would produce the effect desired and
intended. Proper precautions should have been taken, also, for
the recovery of the anchors and cables, by having buoys attach¬
ed to them previously to slipping.
In making good anchors and cables slipped, it is the custom
to charge the entire cost of the anchor, and two-thirds of a
rope cable ; also two-thirds the price of a chain cable. When
chain cables were first introduced in this country, they were by
many insurance companies exempted from the deduction of a
third new for old, for the purpose or encouraging their intro¬
duction. In England it is the custom to charge five-sixths of
the price of a chain cable to general average.
Is the loss of a cable and anchor, by anchoring of necessity
under extraordinary circumstances in an unusual and dangerous
place, a case for contribution?
Mr. Parsons, in his Treatise on the Maritime Law, vol. 1,
page 290, states : " If the vessel was obliged to anchor in an
unusually dangerous place, to avoid a worse danger, or upon a
rocky bottom which threatened to chafe or cut the cable, or
90
MARINE INSURANCE AND AVERAGE.
catch and break the anchor, and in this way either or both were
lost, it might be a difficult question—of fact, however, rather
than law—whether this was an average loss. The question
would be, was it a voluntary sacrifice, or only an exposure to
one of those sea perils which the ship must encounter whenever
they occur, and which would bring this loss rather within the
description of loss by wear and tear, than of voluntary sacrifice.
It is obvious that this must depend on the circumstances of the
case. We should say, however, that a loss of this kind should
not be considered as voluntary, and, therefore, should not be re¬
garded as an average loss, unless the anchoring in that place or
way was unusual and unnecessary, except for the purpose of
saving the cargo from some peculiar peril, and, but for this pur¬
pose, would not have been done."
Mr. Phillips, in his Treatise on Insurance, vol. 2, § 1,296, is
of opinion that, "if such a loss take place under extraordina¬
ry circumstances, within the risks insured against, or in conse¬
quence of the unusually violent operations of the perils as¬
sumed by the insurers, it is difficult to reduce this damage
within the mere wear and tear of the voyage, upon any princi-
/
pie which would not exonerate the insurers from all average on
account of damage to the skip. Whether it is to be considered
general average depends upon its being incurred purposely. If
a ship, as often happens, come to anchor to avoid going upon a
lee shore, and can escape from this perilous situation only by
cutting or slipping her cable, this is a sacrifice intentionally
made under extraordinary circumstances, and as directly for the
general safety as any jettison or other sacrifice can be imagined
to be in any case wrhatever. The loss of the cable and anchor,
or the expense of recovering them, seems to come in such case,
or under other extraordinary and perilous circumstances, within
the principles of general average."
There is a diversity of opinion on this question. Some are
of opinion that this damage, whether it happen in the usual
course of the voyage, or under extraordinary circumstances, is
a part of the wear and tear of the ship, for which the owner is
GENERAL AVERAGE.
91
entitled to no contribution from the owner of tbe cargo, or in¬
demnity from his underwriters.
Mr. Arnould states that, "where the ship in order to avoid
capture, or a lee shore, casts anchor in a foul and rocky bottom
in some unusual place of anchorage, and the cable is conse¬
quently chafed asunder by the friction, or the anchor so firmly
wedged that it cannot be weighed, it has been a subject of great
discussion, especially among the German lawyers, whether the
damage thus occasioned is a general average loss. It appears
that in practice it is frequently adjusted as such; but on prin¬
ciple, as the damage thus incurred was not intended or antici¬
pated as the result of the act, as it was directly caused not by
the agency and will of man, but by the force of the elements,
it ought not to be considered a general average loss." Arnould
on Ins., vol. 2, p. 897.
Though the language of the American and English cases and
books is uniform, that to constitute a general average loss, the
act and volition of man is requisite ; a loss of cable and anchor
by anchoring in an unusually dangerous jfiace, if the result of
an intention to save the cargo from some impending peril, is, in
practice, not unfrequently adjusted as a general average.
But, when a ship in her ordinary navigation drops her anchor
among rocks, or moorings of other vessels, and afterwards finds it
impossible to weigh it, and is in consequence obliged to unshackle
the chain or cut the rope cable, the loss is borne by the owner ;
for the anchor and cable were in fact lost as soon as they were
dropped, just as much as if the cable had immediately broken.
They were in a situation from which they could not be recov¬
ered, and so there could be no claim as for a voluntary loss.
If, however, a vessel is driving with her anchor down, or being
in danger she lets go her anchor, and it hooks or drops into
moorings, rocks, &c., and she is obliged to slip, then it becomes
general average. Or, in case of a vessel fouling another
ship's ground-tackle,—if the anchor could have been recovered
in ordinarily fine weather, but a gale coming on makes it highly
dangerous for her to remain where she is, and the cable is in
92
MARINE INSURANCE AND AVERAGE.
consequence cut or unshackled, the loss then ranks as general
average.
If an anchor by which a vessel is moored, is lost by the part¬
ing of the cable, the loss is denominated " wear and tear," and
is borne alone by the owner. It is an ordinary casualty to
which vessels are liable.
When anchors and cables are regained after others have been
bought to replace them, 1 hey are generally sold for the benefit
of those concerned with their loss, and the net proceeds of their
sale, after deducting the salvage and other expenses, go in re¬
duction of the cost of new anchors and cables. If they are
picked up previous to new ones being purchased, then the sal¬
vage and all other expenses of the recovery is chargeable in
general average.
When, in consequence of some disaster, it becomes necessary for
the common safety of ship and cargo, for the master to put into
a port out of the course of the voyage, what charges and expenses
usually belcmg to general aver a get
f
By the laws of most of the commercial states of the United
States, if a master, in consequence of some disaster, for the
common safety of ship and cargo, voluntarily puts into a port
of refuge, and there necessarily, and for the common benefit,
unloads the cargo to repair the ship, and the ship is repaired
and completes her voyage ; the pilotage and towages in and
out; custom-house and health officers fees; Notary's account
for protest ; survey of the ship to determine her condition on
arrival; postage and telegraphic dispatches, when not repairing;
the wharfage on the ship; the wharfage and storage of the
cargo; the expenses of unloading and re-loading; accidental
damage done to the cargo in consequence of unloading; hire
of people to guard the property or to pump the ship ; commis-
GENERAL AVERAGE.
93
sions on advances by the ship's agent, so far as the same are for
general average purposes ; adjuster's fee ; commissions for custody
of cargo ; and, in general, all the other expenses incurred for the
general good, and not properly belonging to the repairs of the
ship, including the wages and provisions of the crew from the
time the ship voluntarily changed her course to go into the
port, to the time she left it to resume her voyage ; are consider¬
ed as general average charges, and are contributed for by ship,
freight and cargo, according to their respective values.
Judge Marvin, in his recent decision, in the case of Boberts,
et. al., v. Ship Ocean Star and cargo, says—" It is an obvious prin¬
ciple of equity, that whenever expenses have been necessarily
incurred for the common benefit of two or more interests, by
a person authorized to act on behalf of the parties concerned,
the interests benefited ought to contribute to the expenses, in
proportion to their respective values; And whenever expenses
have been rightfully incurred for the benefit of one interest
alone, that interest ought to bear the burden of it."
Bearing this principle in mind, it will be no difficult matter
to ascertain what proportion of expenses and charges are appli¬
cable to general average, when a vessel puts into a port to re¬
fit, &c.
Surveys.—On arrival at an intermediate port in distress, the
first survey held 011 the vessel, as it regards the collective inter¬
ests, is general average. So are all other surveys requisite for
the instruction of the master as to the measures to be pursued
for the common interest. And when surveyors are intelligent,
and faithful in the discharge of their duties, uninfluenced by
private or local interests, their report is entitled to credit, and
is a very useful document in the settlement and adjustment of
losses. But, the master is, in 110 case, bound to follow the re¬
commendation of surveyors, nor will their recommendation re-
relieve him or his owners from any portion of their just and
legal responsibility for his acts. Under the impression that
surveys are necessary to justify the acts of the master, and that
the cost of them is general average ; he permits the consul or
94
MARINE INSURANCE AND AVERAGE.
agent to send on board his vessel several sets of men, at differ¬
ent times, going through all the forms of written appointment,
return, and record; when, perhaps, only one survey and one re¬
port, comprising distinctly what they saw and recommended, is
all that is needful. It is obvious, that this practice of multi¬
plying papers, is not done so much with a view of benefiting
the master or his owners, as with a view of justifying charges.
Not only are the Consul's and agent's own fees thus enhanced,
but, incidentally, more surveys are called, and more reports
made and authenticated, than are useful or needful. This
practice has increased so much of late years, and reflects so
much on the skill, judgment, and intelligence of the master,
that he who wishes to advance his reputation, should take every
precaution to check the abuse. No vessel can enter a South
American port in distress, and escape the payment of four or
five hundred dollars to surveyors and consular officers. And it
is to be regretted, that this practice prevails to a greater extent
amongst the representatives of the United States in foreign
ports, than with others. Attempts have been made to reform
this abuse by Federal Legislation, but as yet without success.
The consul requires the master to address to him a written
request for a survey. He then makes an appointment of two
or more persons; these persons examine the vessel and make a
written report, for which service the consul pays them a large
fee. The consul records the master's letter, the act of appoint¬
ment, and the report, makes a certificate of the authenticity of
each, and two or three copies, ail of which he authenticates, and
charges for each certificate. Thus a mere preliminary survey
is made to cost from seventy-five to one hundred dollars, when
the whole thing might and should be accomplished for ten
dollars.
There is neither law nor necessity for the interference of a
Consul of the United States in the appointment of surveyors;
any compétent men may be selected, with the approbation of
the master, and he may agree with them as to fees ; in the same
manner as hé may bargain for any tiling else. Whenever their
GENERAL AVERAGE
95
reports are finally made up, it will be expedient to have one cer¬
tificate from the consul that the surveyors appeared before him
and verified their acts ; but even this may be dispensed with.
Expenses of Unloading :—If the ship arrives in a port of dis¬
tress in a leaky condition, or in such a condition as makes it ne¬
cessary that she should be discharged for the common benefit,
the expenses of hiring men to pump and unload the ship, and
to remove the cargo from the wharf to a warehouse, the wharf¬
age on the cargo upon landing and the use of trucks and labor
in storing the cargo, are all expenses incurred for the common
benefit, and should be apportioned upon the ship and cargo.
Phillips, Stevens & Benecke, 124. The ship and cargo being
separated, each interest thereafter should bear its own expense,
except, indeed, where they are again re-united, and the voyage
completed, when the expenses are adjusted according to the law
of the port of delivery.
Pilotage into port, fees of entry at the custom-house, the
notary's fees, surveyor's and divers fees for surveying the ship
and diving under her bottom before an abandonment of the
voyage, with a view to determine the question of repairs, the
costs of a salvage suit instituted against ship and cargo, are all
generally apportioned upon ship and cargo.
The accounts of the master's agent or consignee divide them¬
selves into three classes—1st, disbursements on account of the
ship or materials alone ; 2nd, on account of the ship and cargo ;
3d, on account of the cargo alone. His commissions arrange
themselves in the same manner. Care ought to be taken, parti¬
cularly as to the labor bills, that the charge is entered to the
right account and for the right time, and that the account shows
fully the cause or nature of the charge.
Repairs, in which is to be included the dockage o^ wharfage
of the ship while undergoing them, are never contributed for in
general average—except where they are made necessary by an
injury voluntarily inflicted for the common safety, or where
they are temporary merely, and necessary to save and carry on
the cargo, but are afterwards of little or no benefit to the ship.
96
MARINE INSURANCE AND AVERAGE.
So far as such temporary repairs are of any lasting or peculiar
value to the ship-owner, he must pay for them.
But when instead of discharging cargo at an intermediate
port, the vessel goes into dock for repairs with cargo on hoard,
the charge is generally allowed as a proper subject of general
average.
According to the decisions of some of the French tribunals,
the expenses of unloading storing and re-loading the csfrgo to
make repairs, in a port of refuge, in consequence of damage done
to the ship by storms or other vis major, and not voluntarily in¬
flicted for the common safety, are not subjects of general average
contribution, but fall on the ship alone ; the ship-owner being
held bound to keep his ship in repair, and must, therefore, pay
the expenses of unloading to make the repairs. Code de Com¬
merce, par M. Rogron, Art., 403 et Com. Emerigorûs Traite
des Assurances, note hy Boulay, Paty, torn. 1. p. 620. Others
have held in near accordance with our law, that if the going into
port was voluntarily determined on by the master and crew,
after " deliberation motivee " under circumstances of pressing ur¬
gency, in order to save the cargo, as well as to repair the ship,
that such departure from the voyage is a general average act, and
the necessary expenses of unloading, storing and re-loading the
cargo, in order to repair the ship and proceed on the voyage,
are to be contributed for in general average. Droit Commercial,
par M. Pardessus, torn. 3, § 741. Traite des Avaries, par Ernest
Frignet, Paris 1859, torn. 1. § 419. The French Code, Articles
400 and 403, makes wages and provisions, during a deviation
and delay for repairs, a particular average on the ship when it
is chartered for the voyage, and general average when it is char¬
tered by the month ; and the damages to be repaired were
voluntarily inflicted for the common safety.
By the " Usage at Lloydsthe pilotage in ; boat hire ; har¬
bor duties ; quarantine and health dues ; custom-house fees ; pos¬
tages and dispatches ; use of warps and tackle and the wharf¬
age on the ship while unloading ; expense of unloading and put¬
ting the cargo in store, are general average charges. The cargo
GENERAL AVERAGE.
97
being separated from the ship and stored in safety, the general
average charges cease. Storage of the goods ; cooperage ; dry¬
ing or improving their condition, are charged to the goods ; labor
re-loading; outward pilotage and towage, are special charges to
freight. Wages and provisions for the crew are never charged
in England to general average, nor to the underwriter on ship or
freight. The loss falls on the ship-owner.
What is the rule with reference to general average, as to money
which the captain is obliged to raise abroad, in order to enable
him to prosecute the voyage ?
It appears to be a rule, established in all countries without
exception, that if a vessel, for the necessities of which, upon
the passage, bills have been drawn, arrive safely at the place
of her destination, the charges incurred in drawing, such as
commission, loss in the exchange, interest of money advanced,
etc. ; must be added to the other expenses, and repaid by the par¬
ties interested, according to their respective shares, so that the
charge of raising money for defraying expenses of the nature of
a general average, belong to general average ; those incurred
for paying a particular average on the vessel, constitute a parti¬
cular average, etc.
Sale of part of cargo for the common benefit ?
In cases of absolute necessity, when the master is in a foreign
port, and has no other means whatsoever of raising money, he
may sell a part of the cargo for the purpose of procuring funds.
And when such sale is clearly made out to have been for the
7
98
MARINE INSURANCE AND AVERAGE.
general benefit, it entitles the owner of the goods to claim a
general average contribution in respect of the loss he has sus¬
tained by the transaction, just as though the goods had been jet¬
tisoned. 3 Kents Comm. (5th ed.) 242. But the loss arising
out of such sale gives no claim to contribution where the sale
is effected to supply the ordinary expenses of the voyage.
The master has no right to sell an entire cargo at an inter¬
mediate port to raise funds to repair his vessel, etc. He has the
same right to sacrifice â part that the remainder of the interests
may reach their destination, as he has to throw a portion into
the sea to procure the safety of the rest. He should therefore, be
careful not to dispose of more than is absolutely necessary. The
loss on such a sale will form an item in the average adjustment
and will be applied to the columns of disbursements pro rata.
The loss is discoverable by making up a simulated account
sales, as if the goods sold had arrived in a sound state, from
which the actual sales will be deducted. In settling with the
proprietors of cargo for average, the sound value of their goods
sold will be set off against the amount claimable from them for
general average and charges.
Wages and provisions of the crew.
The expense of wages and provisions during delay and de¬
parture from the course, until the ship is again proceeding
for the port of destination, are by the law and the general prac¬
tice in the United States included in the amount to be contribut¬
ed for in general average, whether the damage which occasions
the departure or delay is general or particular average.
Mr. Arnould speaking of these expenses, remarks : " In Eng¬
land they can give a claim neither to general nor particular
average, but fall exclusively upon the ship-owner, upon the
principle that he is bound by the very contract of affreight-
GENERAL AVERAGE.
99
ment, and as a part of the consideration for which the freight
is paid him, to keep a competent crew on board, from the com¬
mencement to the end of the voyage." 2d. Arnould, 910.
This reasoning seems inconclusive, unless for consistency it is
extended to every other expense incident to making a port for
the general safety ; it may be said with equal force, that the
ship-owner is bound to pay every charge, ordinary or extraor¬
dinary, that may be necessary to enable him to accomplish the
voyage that he may earn the freight.
Lord Tenterden suggests, that whenever a vessel puts away
for the purpose of repairing damages which are themselves the
subject of general average, the wages and provisions should be
allowed as an accessory. Abbott on Shipping, Chap. 10, Sec. 5.
497. But the " custom at Lloyds " as exemplified in statements
made by British adjusters, ignores the rule.
Marshall, an approved English authority, writing in 1802,
cites from Beawes the following rule : "Where a ship is forced
to enter a port to repair the damage she has suffered in a storm,
being unable to continue her voyage without apparent risk of
being lost, the wages and provisions for the crew from the day
it was resolved to seek a port to refit the vessel, to the day of
her departure from thence, with all the charges of unloading,
re-loading, anchorage, pilotage, and every other expense incur¬
red by this necessity, shall be brought into a general average."
Marshall on Ins., Book 1, Chap. 13, Sec. 7.
This rule, thus approved in England, is now, and always has
been, the foundation of the American practice ; British courts
of law have invaded it and the " Custom at Lloyds," has been
to disregard it in many particulars, but nevertheless the courts
of this country have adhered to it.
The French Code, Articles, 400 and 403, makes wages and
provisions, during a deviation and delay for repairs, a particular
average on thé ship when it is chartered for' the voyage, and
general average when it is chartered by the month ; and the
damages to be repaired were voluntarily inflicted for the com¬
mon safety.
100
MARINE INSURANCE AND AVERAGE.
In the United States wages are allowed at the rate agreed be¬
tween owners and mariners only; many ship-masters erroneous¬
ly believe that they are entitled to a particular sum per day
when in a port in distress. If the master's wages are $150 per
month, he receives $5 per day, and if his wages are but $60, he
receives but $2.
Many large ships are sailed at a nominal rate and primage,
say $20 or $30 and 5 per cent. The rule adopted by adjusters
at New York, is, to ascertain what the ordinary wages per month
of a skilful master would be for a vessel of similar kind and
class. And a rule similar to this is adopted at Boston and San
Francisco.
The rule as to allowance for Provisions, is as follows : at
New York, the master $1 per day; the mates 50 cents each;
the seamen 30 cents each; at Boston, the master $1 per day;
the mates 50 cents ; the seamen 25 cents ; at San Francisco, the
master $2 per day ; the mates $1.50, and the seamen, 30 cents.
Are the vmges and provisions of the crew, during the time they
are employed in saving the materials and cargo of a wrecked
ship, or while getting off a ship accidentally stranded, general
average ?
In the case of ship Ocean Star and Cargo, Judge Marvin,
delivering the opinion of the court, said : " Such is the nature
of the contract between the shipper and ship-owner, and such is
the law applicable to such contract, that the master must not
abandon his ship or cargo upon any ground, when it is practic¬
able for human exertions, skill and prudence to save them, or
any part of them, from impending peril. A loss of the goods,
caused by negligence, carelessness or unskilfulness, or any loss,
which might have been prevented by human exertions, is not a
loss by a peril of the sea, which exonerates the master and ship-
GENERAL AVERAGE»
101
owner, under their bill of lading, from liability. After shipwreck,
the master is bound to exert himself to the utmost to save the
goods, and to attend to their safe custody and preservation. In
Cordes v. Propeller Niagara, 21, How. 7, the Supreme Court of
the United States held, that the ship-owner was liable for loss
and damage happening to the cargo after the ship had stranded,
because the master did not sufficiently exert himself to prevent
such loss or damage. And in King v. Shepherd, 3 Story, 358, the
ship-owner was held liable for the loss or theft of a keg of spe¬
cie, happening while the ship was stranded on the Florida reef.
In like manner the seamen are bound to labor in saving the ma¬
terials and cargo of a wrecked ship, under a penalty of a for¬
feiture of their wages, and according to the laws of Oleron la
plus grande punition. The materials saved and the freight in
the cargo, if the original freight can be earned by a transhipment
of the cargo, are both pledged to the seamen for their wages.
But although the master and crew are thus bound to labor in
saving the cargo, yet they are not bound to do this, at their own
or the ship-owner's expense, after the ship has become a total
wreck and no freight has been or can be earned. If after this
event, the master and crew labor in saving the cargo or any
part of it, they do so, not as the crew of the ship now lost, but as
the agents or servants of the shippers, being constituted such
by operation of law consequent on the disaster, and they are to
be paid by them a reasonable compensation out of the mer¬
chandise saved by them. If they save the materials or mate¬
rials and cargo together, the interest or interests benefited by
their services, ought to pay the expense. Wages by the day at
the rate of their monthly wages and provisions, would always
be reasonable, and is the rule adopted by the French code. In
extraordinary cases a small additional sum might be rightfully
allowed ; but they are not, except for very extraordinary ser¬
vices, entitled to the rewards of salvors. Bridges v. Niagara
Ins. Co. 1 Hull, 423; 2 Phillips on Ins., § 1472; Marvin on
Wreck and Salvage, § 149, Code de Commerce, par J. A. Ro-
gron, § 261. General Average by Baily, 124. Generally, how-
102
MARINE INSURANCE AND AVERAGE.
ever, on this coast, the slight services of the seamen to the car¬
go, after the ship is lost, are no more than a fair equivalent for
saving their own personal effects by the wreckers ; and as to
any slight difference, de minimis non' curat lex. But if they
continue for several days or weeks to labor in saving the cargo,
as in some instances they have done on this coast (Florida),
they are entitled to be paid by the day, as above stated, out of
the cargo saved by them.
The cargo is not to be made liable for any part of the wages
and provisions of the crew, during the time they are employed
in getting off a ship accidentally stranded. Some average ad¬
justers, in the United States, make the cost of wages and provi¬
sions a common charge, from the time that the ship, being float¬
ed, bears away to go into a port of refuge, to the time the voy¬
age is abandoned. I have not met with any decision of our
courts expressly affirming or disaffirming this practice. There
are very respectable dicta against it. Justice Story says, "that
the expenses of going to a port of necessity to refit can properly
be a general average only, where the voyage has been or might
be resumed. If it has been abandoned from necessity, then it is
not a case for the application of the doctrine." Williams v.
Suffolk Ins. Co., 8 Sum., 510. 2 Parsons on Maritime Law, 814.
It appears to me that, upon principle, the cargo ought not to be
held liable in general average for the wages and provisions of
the crew, when the voyage is abandoned at the port of necessity,
but only where the voyage is resumed and the cargo delivered at
its port of destination."
How are Salvage and Expenses usually apportioned?
When a ship and cargo are saved together, as, by lightening
the ship, carrying out anchors, &c., the total salvage is appor¬
tioned upon the ship and cargo, according to their respective
GENERAL AVERAGE. 103
values. But when the ship is wrecked and lost, the interests
are thereby dissociated, and, in as much as the different articles
of the cargo are likely to belong to different owners, each sepa¬
rate article of the cargo saved ought, as near as may be, to bear
its own expense of saving, so that dry cotton belonging to one
owner shall not pay for saving wet cotton belonging to another,
nor silks pay for saving rail-road iron. Articles, however, of
the same kind, saved at the same time, by the same salvors, in
a similar condition, may generally be charged with the same
rate of salvage. So, too, in such cases, the wharfage, storage,
labor bills in landing and storing the goods saved, ought, as
near as may be, to be charged to the separate articles saved, so
that goods of great value and little bulk shall not be made to
pay the expenses on goods more bulky and less valuable. Ex¬
penses of sale should be charged to the goods sold. In such
cases, however, the notary's fee for noting and extending the
master's protest, cost of documents useful to all the parties in¬
terested, and the costs of salvage suit, instituted by all the sal¬
vors conjoined, against all the property saved, are ordinarily
treated as common charges and apportioned.
Salvage on goods saved from a wrecked ship are often, in
England, apportioned pro rata, by average adjusters, without
regard to any difference in the expense of saving the different
articles, on the ground of convenience.
If Masts are on Fire, and are cut away to save the ship and
cargo, assuming that they are of value at the time they are cut,
and the vessel is thereby saved, is this a case of contribution ?
This question was raised but not decided in the case of the
general average of the Ship " Great Republic," Lee v. Grinnell,
5 Duer 400, 411. The reasons why they should not be contrib¬
uted for, are thus stated by Mr. Justice Duer:—"The cutting
104
MARINE INSURANCE AND AVERAGE.
away so far from being a sacrifice of the masts and spars, was a
measure for their preservation, so far from destroying any value
which they then had, it was the only means by which any part
of their original value could be restored and saved" Mr. Jus¬
tice Hoffman was of a contrary opinion ; and Mr. Justice Camp¬
bell declined to express his views upon the subject. They
agreed, however, that the point need not be decided in this case,
as, in the opinion of both of them, the subsequent event, which
defeated the expectation of safety, prevented the loss from be¬
ing one of general average. The ship and cargo were not saved
by the cutting away.
Mr. Justice Hoffman remarked, "My own examination has
led to the conclusion, that in the present case, the damage to
the masts, would have proved a case for general average, had
the result *of cutting them away been finally successful. But
my associate, Mr. Justice Duer3 is much inclined to a different
view of the point; and I may well distrust my own conclu¬
sions, where they do not meet the approval of one who has
made commercial law the subject of such extended and pro¬
found "examination."
This case of the " Great Republic," is considered one of much
authority in determining the following questions.
1st—Whether there is any claim for contribution, where the
very thing which is purposely destroyed in order to save other
things, could not in any way be saved, but must have perished at
all events ?
2d-—Whether in order to found a claim for contribution, the
common adventure must be saved, or the impending calamity aver¬
ted by means of the sacrifice ?
— Where a cargo is on fire from, an accidental cause, and
GENERAL AVERAGE.
105
the vessel is scuttled, or water is poured down to extinguish the
fire, and goods are thereby injured which the fire had not reached,
whether they are to be contributed for ?
The case of the Ship " Great Republic," was argued in the
Superior Court of New York, December Term, 1855, before
Justices Due7, Campbell and Hoffman. Mr. Francis R. Cut¬
ting, for Plaintiffs, and Mr. Daniel Lord, for Defendants; two
of the most eminent mercantile lawyers in this country. Mr.
Justice Hoffman, at general term, February, 1856, delivered the
opinion of the Court, from which the following is extracted:—
" About midnight, of the 26th December, 1853, the ship was
lying at the foot of Dover street, with nearly all her cargo on
board, and her sails bent below her royals. A fire broke out in
Front street, nearly in a line with the ship, as the wind was
then blowing. The watchman awoke the second mate with in¬
formation of the fire, and that coals were falling about the ship.
All hands were called, and stationed. Men were sent into the
fore, main and mizzen-tops, with backets. The fore-sail soon
burst into a flame. Attempts to beat out the fire in it failed,
and the men stationed in the fore-top were driven out of it.
The mizzen-top-sail, and mizzen-top-gall ant-sail had then taken
fire. The crew attempted to extinguish this, and to cut the
sails adrift from the yards. These efforts were vain—the dry
cotton canvas soon being a sheet of flame. The firemen had,
about this time, arrived with their engines; but would not
work on board, or near the ship, for fear of the blocks and other
articles, on fire aloft, falling 011 them. It was then concluded,
for the preservation of the ship and cargo, to cut away the
masts.
"Here, we may notice, was the first determination "to do an act
of destruction, to contribute to the general safety.
" At that time, the sails, spars and rigging at, and the heads
of, the lower masts, were on fire. No material damage had
been done to the spars by the fire.
" In executing this determination, the fore-stay and fore-top-
106
MARINE INSURANCE AND AVERAGE
mast-stay were first cut away, and fell over the starboard rail
into the dock. The fore-top-mast broke short off, and fell down
endways, through three decks, being on fire at the tifiie, and set
the cargo and lower part of the vessel on fire. The main-mast
was next cut away ; and, in falling, carried with it the mizzen
and spanker-masts by the deck. The masts, spars &c., in fall¬
ing, crushed the boats, rails &c., on the starboard side, and the
houses on deck—broke the steam engine, and did other damage.
The houses &c., on the upper deck, were all more or less on
fire at the time.
" After the masts, spars &c., were cut away, the firemen came
on board with their hose, and finally succeeded in putting out
the fire on the deck; and it was supposed that the ship and
cargo were saved. But all the houses, companion-ways on, and
the upper deck, rails &c., abaft the main-mast, were destroyed,
or very badly burned. The cabin in the upper between-decks,
with all its furniture, the stern of the ship, rudder heads, stores,
spare sails, and a quantity of bread in the upper between-deeks,
also perished.
" It is also found that the masts, spars &c., cut away, were
nearly destroyed by fire, after they fell on deck.
" The fire on and about the upper deck being extinguished,
several streams (of the engines) were removed to another fire
which had broken out in the city. After this it was discovered
that the cargo was on fire in the lower between-decks, caused
by the fore-top-mast falling through the decks, being on fire at
the time. The subsequent measures were then taken, as here¬
after noticed.
" The first question is this :—Suppose the expectations enter¬
tained at this period, when some of the engines were carried
off, had been realized, and the disaster arrested, would there not
have been a case made, as to many items, for a general average?
The fore-stay, the fore-top-mast-stay, the main-mast, the mizzen
and spanker-masts were voluntarily cut away. The heads only
of the masts were on fire. They were destroyed after they fell
on deck So the spars had received no material damage, and
GENERAL AVERAGE.
107
were burnt on deck. The boats, sails &c., the steam-engine and
houses on deck, were injured directly by the cutting away of
the masts. The evidence shows that these articles were at the
moment of the act of destruction, of an appreciable and consid¬
erable value. Had they fallen into the dock, and been reclaim¬
ed, they would certainly have yielded a considerable sum to
the owners.
"The general rule is, that the cutting away of masts, sails,
boats, &c., is an ordinary subject of contribution. It is true,
6 that nothing but the presence of imminent danger will entitle
the owner to make such a claim; and the sacrifice must at least
be the apparent cause of extricating the ship from her perilous
situation.'
" But there is much authority to show, that the demand for
contribution is not limited to cases, where the voluntary act
both commences and completes the destruction of the subject
for which it is claimed. It extends to cases where the accidental
peril has begun, and the voluntary act has consummated, that
destruction."
"But now arises a point, the subject of no little discussion
and difficulty. The masts and spars, it is insisted, must have
been destroyed. For them there was no possibility of safety.
When cut away, they were indeed of a considerable value, but
that is not enough. The thing destroyed must have been in
such a position as that there was a possibility of saving it, as
well as of saving that for whose safety it was given up. What
is certain of being destroyed, cannot be treated as of any value
—cannot, therefore, be allowed for.
" The masts &c., were, in fact, of value when cut away ; that
is, had a sudden flood of rain extinguished the fire, they would
have been of value ; but, as exposed, and under the actual cir¬
cumstances, they were of no value. Their positive value only
arose from their being cut away—and as to such only as fell
overboard.
" So distinguished a writer as Mr. Benecke gives this view the
sanction of his authority. He says:—JIf the master's situation
108
MARINE INSURANCE AND AVERAGE
was such, that, hut for a voluntary destruction of a part of the
vessel or her furniture, the whole would certainly and unavoid¬
ably he lost, he cannot claim contribution ; because a thing can¬
not be said to have been sacrificed which had already ceased to
have any value.' (P. 288—London Ed.)
"In commenting upon the subject, Mr. Phillips makes the
following remarks (vol. 2, p. 66—Ed. 1858) : ' The correctness
of this position admits of great doubt. It is inconsistent with
cases of undisputed claim for contribution, as, for instance,
composition with pirates. The more imminent the peril is, the
less questionable seems to be the claim for contribution on ac¬
count of a sacrifice made to avoid it.' Hf, indeed, the thing aban¬
doned is itself so exposed to destruction that it cannot possibly
be retrieved and saved, and its abandonment cannot possibly con¬
tribute to the safety of the ship or crew, cargo or freight, there
may be ground of objection to contribution. But in cases of
such objection, the construction will be very liberal in favor of
contribution. '
"In the Columbian Ins. Co. v. Ashby (18 Peters 881), the
special verdict found, 6 that the captain in this situation, finding
no possible means of saving the vessel or cargo, and preserving
the crew, slipped his cables and ran the vessel ashore.' The
ship was allowed for.
'So in Barnard v. Adams, (10 Howard 278), the captain
thought it impossible to get by a point without being wrecked
and lost; he therefore directed the course of the vessel towards
the shore. The ship was not utterly broken up; but it would
cost more to get her off than she was worth. She was therefore
sold. Justice drier presents the charge of the Judge as if thus
made : ' That if the jury believed, that if there was imminent
peril of being driven on a rocky and dangerous coast, where the
vessel would have been inevitably wrecked, with loss of ship,
cargo and crew, and that the immediate peril was avoided by
stranding her at a less dangerous place, it was a case for con¬
tribution.' The learned judge enters into a minute criticism
of the phrase inevitable, and other expressions. He states the
GENERAL AVERAGE.
109
proposition of the plaintiff's counsel, thus: 'If the common
peril was of such nature that the thing cast away to save the
rest would have perished anyhow, even if not selected to suffer
in the place of the whole, there can he no contribution.' He
then proceeds If this be the meaning, and we can discover
no other, it is a denial of the whole doctrine upon which the
claim for general average has its foundation.'
"We cannot but observe that it is contrary to truth of rea¬
soning, as well as to philology, to say, that a peril is inevitable
in reference to the whole subject exposed fco it, when the event
shows that a portion of that subject escaped it. The good sense
and the result of the two cases in the Supreme Court of the
United States, seems to me this :—-
" A state of things may exist, and in those cases did exist, in
which a certain and common destruction appeared inevitable, if
nothing was done. But if an act was done, and it resulted in
evading the peril as to part of the subjects exposed, but another
part was lost in the act, the latter shall be allowed for; and
this, although the peril incurred as to that part was just as sure
of leading to its destruction, as the peril to which it was origi¬
nally exposed.
"Let the case of the Hope, and that of the Brutus, be tested
by the rule advocated by Mr. Benecke. The vessel was, accord¬
ing to the best judgment that existed in the case, certain of be¬
ing utterly lost. She was then, at the moment of the act deter¬
mined upon, of no value. But the act of stranding her in
another place, while it brought no greater or other peril to her¬
self, was the means of saving the cargo ; and for that preserva¬
tion, the cargo contributed to meet her loss.
"This reasoning, derived from these decisions, seems to me
irresistible, upon the hypothesis of success now presented. The
masts and spars were cut away to enable the firemen to come
on board, and to use the most, if not the only effectual mea¬
sures to avert the danger. They succeeded in extinguishing
the fire, so that entire success was apparently the consequence
of the act. The masts and spars were of a considerable value
110
MARINE INSURANCE AND AVERAGE.
at the moment of their premeditated destruction, as well as the
ship Hope at the moment before her stranding. Every element
in Mr. Justice Griefs propositions, as 1 o what makes a case of
general average, is included here. There was a common danger
in which all participated—a danger apparently inevitable to
all, if 110 act of man averted it. There was a transfer of this
imminent peril, from the whole to a portion of the whole. The
act was eminently calculated to preserve the residue of "what
was exposed, and seemed, for a time, to hare done so.
"I apprehend, then, that although a fortuitov , cause has begun
the work of destruction of part of a ship—if a voluntary act
completes it, and that act averts or diminishes the damage to the
cargo and rest of the sjiip, there is ground for contribution; and
that this rule is equally applicable, lohether it is certain that the
fortuitous cause woidd have destroyed that portion if left alone,
or not. My own examination has thus led to the conclusion,
that in the present case the damage to the masts, spars, railing,
and some other articles, would have proved a case for general
average, had the result of cutting them away been finally suc¬
cessful. But my associate, Mr. Justice Duer, is much inclined
to a different view of the point; and I may well distrust my
own conclusions, when they do not meet the approval of one
who has made commercial law the subject of such extended
and profound examination. Still, the propositions of the ad¬
justers, and the points argued by counsel, have made it neces¬
sary to discuss and express my opinion upon the point.
" It happily does not become essential to decide this question,
in consequence of the conclusions we have arrived at upon an¬
other point, which I now proceed to state.
"I have before noticed the rapid progress of the flames, and
the unavailing efforts of the crew to arrest them—the arrival
of the engines, and the circumstances which, for a short period,
rendered their arrival useless. The blocks and other articles,
which were falling from aloft upon the deck, menaced the fire¬
men with a needless peril, and they refused to board the ship,
unless the masts were cut away. The moment this was done,
GENERAL AVERAGE. Ill
their labors were bestowed and were effectual. The whole peril
appeared for an interval, subdued and averted—success seemed
to have rewarded the efforts of those engaged, and preservation
to have been won when the sacrifice was consummated. But
these hopes and expectations were disappointed. The interval
of apparent security was the period of the most imminent and
fearful peril. All the measures adopted for safety proved
sources of destruction."
Mr. Justice Hoffman, in the early part of his opinion, says,
" It will tend to precision in understanding and correctness in
deciding the case, that the facts be ascertained as they existed
at two distinct periods. One embracing the time between the
discovery of the fire, and the time when, in the language of the
finding, 6 the fire on the deck was put out, and it was supposed
that the ship and cargo were saved and the other, from that
period until the ship was raised from the bottom, to which she
had been sunk, and the cargo was taken out."
And he now continues, " This unfortunate result brings us to
the consideration of the facts attending the second period of the
accident; and it is necessary lo understand these facts and
circumstances with regard to two points of the case.
"First.—Whether they displace the apparent right to a con¬
tribution for the masts, &c., cut away, assuming such a right
to have existed.
"Next, (and of far more importance.) Whether they give a
foundation to the claim for contribution for nearly two-thirds of
the original value of the ship, and for about one-half of the car¬
go, as well as of the freight.
"And this last question is to be examined also, in connection
with all the facts from the commencement to the end of the
disaster.
"It is found, that after the fire on and about the upper deck
had beeh extinguished, and several streams had been removed
to attend another fire in the city, it was discovered that the ship
and her cargo were on fire in the lower between-decks, caused
by the fore-top-mast failing down through the decks (it being
112
MARINE INSURANCE AND AVERAGE.
on fire at the time), and thus setting the cargo and the ship in
the lower befcween-decks on fire. When discovered, it had such
headway that all attempts to extinguish it from above were
soon found to be fruitless ; and the ship was, therefore, scuttled
in three separate places, and soon sunk down ten feet, when
she struck the bottom. Every effort to put out the fire was in¬
effectual, and the ship burned for two days, when being burned
to the water's edge from aft to about the fore-mast, it was ex¬
tinguished. The cargo was burned badly in the second and
third between-deeks ; but that in the lower hold was only dam¬
aged by water.
"Up to the time of cutting the masts away, the cargo had sus¬
tained no damage by either fire or water ; nor was it damaged
by the water thrown in or on the ship to extinguish the flames
on the upper and in the upper between-decks : and not until
the fire was discovered below, caused by the falling of the fore-
top-mast through the decks, did it sustain any damage, by either
fire or water.
"The grain in the lower hold had swelled so as to break the
knees and beams of the lower deck, and otherwise strain and
badly injure the ship.
" The vessel was afterwards floated—-the cargo taken out, and
the ship condemned and sold.
"1st—The first question is as to the effect of these events
upon the right to contribution for the masts &c., cut away, sup¬
posing it to have been otherwise due.
"/ consider the true rule to he, that the achievement of the object
designed, even for a very short period of time, 'will be sufficient to
justify contribution, notwithstanding a subsequent loss, provided
the ultimate loss results from a new peril
" Pardessus presents as a rule of the French Law, this proposi¬
tion ' That if once the damage for which the sacrifice had
been made is avoided—for example, that the tempest is ended,
or the ship has escaped from the enemy, even if it is for a slight
interval—contribution is due. The important point is, not to
confound the continuation of the same accident, though after
GENERAL AVERAGEf
118
an interval, with a new accident. If the things saved meet
afterwards with new injuries, those subsequent events, indepen¬
dent of the first (though they may be extremely close to them),
do not prevent that the things which escaped, more or less in¬
jured by the new accident, and come to port, should pay the
first debt. The goods thus subsequently damaged contribute
according to their real value at the time and place when con¬
tribution is. adjusted. If they have perished in the voyage,
though in consequence of a subsequent event, the owners are
not held liable.5 (Art. 748.)
"The case of Walker v.The United Ins. Co. (11 Serg. & Rawle
61), and the case of Lewis v. Williams, in this court (1 Hall's
Rep. 420), sustain the principles thus advocated. The reason¬
ing of Chief Justice Jones, and of Mr. Justice Oakley, is clear
and decisive upon the point. And the case of Scudder v. Brad¬
ford (14 Mass. Rep. 18), appears to me perfectly consistent with
these authorities and decisions.
" Thus the question is, tuas the peril which rendered the sacrifice
useless, a continuation of the same peril ivhich led to it, or was it a
new disaster ? The fire ivhich induced the act of destruction was
transferred, with the blazing spar, from above, to the hold below,
and there continued and spread itself It seems difficult to say
that this was different from the continuation of the same tempest,
which, by rendering the sacrifice fruitless, displaces a claim to
contribution; and it follows, that no claim exists in the present
case for that damage, ivhich, though caused by a voluntary act,
did not in reality avert or diminish the peril.
"2d—I come next to the consideration of that important
part of the case which relates to the almost total destruction
of the vessel, and of about half the cargo, for which contribu¬
tion is sought.
" The general features of this interesting part of the case are
these:—Thai the original or primary cause of the loss was an
accident not the subject of general average; that a proximate
cause of the preservation of the hull and cargo was the scut¬
tling of the ship; that the immediate cause of the scuttling
8
114 * MARINE INSURANCE AND AVERAGE.
was ,a fire in the hold and between the lower decks of the ves¬
sel ; that such fire was brought there by a voluntary act of de¬
struction ; and that such voluntary act, instead of averting the
peril it was intended to prevent, was an actual and efficient
agent of the loss that ensued. The primary and accidental
cause of the disaster was transferred from one part of the ship
to another. It became a continuation of that original cause; a
transmission of it, in its full and unintermitted character, to
the vessel and cargo.
" Had no measures been taken to arrest the flames, the vessel
and cargo would have been destroyed. Had the scuttling not
taken place, the same identical results would have ensued; and
ensued, not merely in spite of the voluntary act, but as its di¬
rect and immediate consequence. Had the vessel been left un-
scuttled, a heavy gale of wind, and dash of the waves, might
have preserved some portions of her hull and of the cargo.
Would it have been possible to sustain a claim for contribution
*
under such circumstances ?
"There are cases where contribution has been compelled for
sacrifices honestly made, although a severe injury might have
left it questionable whether they were essential to the preserv¬
ation which ensued. But to award contribution for a voluntary
act which directly led to the destruction, or which at least, did
not for a moment interrupt the progress of the original cause
of the disaster—and when that cause ^vas fortuitous—seems
unsanctioned by principle and authority.
"The essential constituents of a case of contribution are, that
the intelligence, the will and the act of man have intended and
produced the sacrifice of the thing for which compensation is
sought, and have worked, in whole or in part, the preservation
of the property from which it is claimed. The subjects destroy¬
ed must have been, in the contemplation of the party, as things
to be destroyed. This rule admits, indeed, of a few guarded
exceptions, but none which may not be considered, in the ordi¬
nary course of events, as comprehended within the intention.
The cutting away of masts is probably as often accompanied with
GENERAL AVERAGE. 115
»
damage to boats and railings as otherwise, and may well be as¬
sumed to have been an expected consequence. The leak, as in
the case of Magrath v. Church (1 Caine's Rep. 214), may rea¬
sonably be anticipated as a probable result of the splintering
of masts when cut away.
" With such exceptions, I apprehend the pervading principle
of contribution is such as 1 have stated. There must be the in¬
tent to sacrifice the thing designated. The sacrifice must be ac¬
complished. Some definite advantage must have sprung from it.
A final preservation must ensue, not indeed by a logical necessity
directly and solely from the sacrifice, but as reasonably contributed
to by it, or as consistent with it, as with any hypothesis the circum¬
stances will allow.
" It appears to me that this principle will be found more dis¬
cernible than any other, in all the great leading authorities in
which a claim for general average has been sustained.
" The important and contested cases of stranding, even accom¬
panied with a total loss, rest upon this proposition. Take the
case of the Hope, in the Supreme Court of the United States
(18 Peters 881). The vessel was surrounded with dangers.
She had begun to strike upon the shoals, and her head swinging
round, she was brought broadside to the sea. The captain
slipped his cables, and ran her ashore, where she was totally
lost. That act was designed to peril the ship, and did in fact
wreck her. A definite advantage in changing the location re¬
sulted. ♦ The preservation of the cargo might reasonably be at¬
tributed to it. It is too speculative to say that the ship must
have been lost elsewhere, or that the cargo might possibly have
been saved elsewhere. An act was done with the certainty of
its entailing a loss to the vessel, which may have been less
than total, but which was apparently inevitable; and it did
tend to save the cargo. It was done as an act hazardous to
both, but to avoid a more certain and greater peril. Bernard
v. Adams (10 Howard 878) is strongly to the same effect.
" If such is the ruling principle to be found in the law upon
this subject, the present case, in the view now considered, can-
116 MARINE INSURANCE AND AVERAGE.
not admit of doubt. The destruction contemplated was of the
masts and spars, and the ordinary consequential damage. The
vessel and each part of the cargo was meant to be saved, not
sacrificed. What was designedly given up was uselessly sur¬
rendered, and what it was meant to preserve was destroyed by
the very act of sacrifice.
"We are brought then to the consideration of the next ma¬
terial act of the agency of man in this catastrophe, viz., the
effect of the scuttling. It will be remembered that the ship,
when scuttled, sank down ten feet, when she struck the bottom.
" What then was the effect of scuttling ? Let it be conceded
that all that was preserved of cargo or vessel was saved by this
act. Let the utmost force be yielded to the argument of coun¬
sel, that, as the vessel was lightened by the progress of the fire,
she would gradually have risen to meet, as it were, the fatal
embrace of the flames. She would then have burnt lower, and
for a considerable part of the ten feet, which, by the scuttling,
was submerged. And thus, the ten feet of frame, and the prin¬
cipal portion of the cargo rescued, owed their safety to this
deed.
" Still the important and decisive question remains :—What
part of the ship was destroyed by the scuttling? It is indis¬
pensable, in conformity with the principles before stated, that
such destruction should be directly traced to the scuttling and
an appreciation of it be possible.
" The flames continued for two days, and burnt the vessel to
the water's edge, from aft to near the fore-mast ; and no part of
the damage can, upon the finding, be attributed to the scuttling,
* ?-■
except the breaking of the knees and beams of the lower deck,
and the strain and injury arising from the swelling of the grain
in the lower hold.
" And as to the cargo, that in the lower hold was only dam¬
aged by the water. All the rest was chiefly, if not solely, in¬
jured by the fire.
"The question appears to be reduced to this,—Shall the
amount of injury to the ship, and damage to the cargo, which
GENERAL AVERAGE.
117
can be definitely traced to the scuttling, be brought into general
average ?
" It appears to us that the direct damage done to the cargo in the
lower hold hy the scuttling is a proper subject for contribution.*
We3 presume it can be arrived at by a comparison of the invoices
of the grain there stowed, and the proceeds of the sales of such
grain.
"No damage to the articles of the cargo ivhich were between-
decks, and on fire, arising from ivater thrown in, is to be contri¬
buted for. The fire is to be considered as still an accidental
fire.
" And we think that the damage to the knees and timbers result¬
ing from the siuelling of the grain in the lower hold, which direct¬
ly sprung from the scuttling, is to be allowed, at what it would
have cost to repair that specific injury. This, we suppose, the
adjusters can, without difficulty, ascertain, and with reasonable
precision.
" It is next necessary to state what rules of valuation are ap¬
plicable to the subjects which are to be allowed for, and those
which are to contribute.
" 1st. The amount to be allowed for the ship, is that sum
which the adjusters shall be able to say, arose definitely from
the injury to the knees and beams of the lower deck, and the
strain to the ship produced by the swelling of the grain in the
lower hold.
" The ship is to contribute upon the proceeds of the sales of
her hull and materials, to which is to be added that amount
which the adjusters shall ascertain ought to be allowed for in¬
jury to the knees, &e., as above stated.
" 2d. The damage to the cargo to be allowed for, is to be as¬
certained by a comparison of the proceeds of the sales with the
invoice cost.
Note —According to English law, the means taken to extinguish fire, as by pouring water into
the hold, and the scuttling of the ship to sink her, are not allowed to constitute a general average.
Whatever damage the cargo may sustain by that course must he borne by the cargo, and the ship
must bear by itself all injury done it.—F. B. D.
118
MARINE INSURANCE AND AVERAGE.
" The ordinary rule in case of jettison is, to take the value at
the port of destination, and to allow that value, as well as to
fix the amount of contribution upon the same basis for what is
saved. (2. Phillips, 4 ed., p. 182.) Where sales of damaged
goods have been made, the difference between the sales and the
valuation, if sound, is the amount to be allowed. (Magens Case
xxv, vol. 1, p. 298.) If goods are sold at the place to which
the apportionment relates, the amount of the proceeds is the
basis on which their contributory value is fixed, (2 Phillips, 151,
ed. 1854;) and goods are contributed for at the same rate and
on the same basis as goods contribute. (Ibid. p. 182.)
In a case like the present, where the voyage has not com¬
menced, and the goods were recently shipped, their value may
properly be tested by the invoices ; and the sales of the goods
at the same port of shipment may be taken as evidence of their
value after the. disaster. The difference is the damage to be
allowed.
8d. The next question is, on what basis is the residue of the
cargo to contribute ? The ordinary rule is, that in cases of jet¬
tison, the cargo is to contribute upon the value of the goods es¬
timated at their prime cost, or original value'; or, if the vessel
has arrived at her port of destination, at their value at such port.
(Rogers v. The Mechanics Ins. Co., 2 Story's Rep., 178.)
"Mr. Abbott states (847), that if the ship, in consequence of
any misfortune to be sustained by general average, be compell¬
ed to return to its loading port, and the average be immediately
adjusted, in that case the goods only contribute according to
the invoice prices ; for the price of sale is unknown.
" In the Mutual Ins. Co. v. The Cargo of the George (8 Law
Rep. 861), the ship was stranded, and unable to return to the
port of departure, or to adopt an intermediate port. The ves¬
sel was lost, and a greater part of the cargo saved. The cargo
was adjudged to contribute at the prices stated in the invoice
and bills of lading, deducting therefrom salvage and other ne¬
cessary expenses incurred in consequence of the wreck.
" But in these instances, the value of the cargo, as preserved,
GENERAL AVERAGE
119
was to be arrived at—it being a fixed rule, that a subject is to
pay according to its value, as it exists when called on to con¬
tribute. But, in the present case, all the cargo was, to some ex¬
tent, injured. All that was preserved was sold. The prices
may be taken as a fair test of the value of what was saved.
"We may add, that, in the present case, the consent of all
the parties interested to a sale of all the cargo, renders this
mode of adjusting the basis of contribution proper, even if an¬
other would, in ordinary cases, be more regular. 4th—In this
connection, another question arises. It is a general rule, that
the goods or articles sacrificed and allowed for, are made to con¬
tribute in common with those saved.
"If merchandise is thrown overboard worth $1,000, and the
residue of the cargo, and the vessel, are valued at $10,000, it is
plain that, if the owners of the latter pay the whole 1,000, the
owner of the goods jettisoned loses nothing. It is, however,
a fundamental principle that he is to be dealt with precisely as
if the goods of another had been sacrificed. Hence, he pays
with the others ; and the contributory interests in the case sta¬
ted are $11,000, instead of $10,000, or 9.09 j)er cent., instead of
10 per cent.
" In the present instance, on the assumption that only the
grain in -the lower hold was damaged by the scuttling, and,
therefore, the subject of a general average, the loss was $45,-
409.38.
" The owners of this grain pay, of course, their proportionate
amount of the proceeds of the sales of what was saved. But
if they pay nothing upon the amount contributed to them, they
would receive from others the whole $45,409, and get, in other
words, the whole value of the goods thus lost to them. They
should pay the same per centage on what they get, as the own¬
ers of the other portions of the cargo pay upon what they re¬
ceive.
"We therefore add to the value of the cargo which is to con¬
tribute, the amount of the loss which is to be paid to the own-
*
ers of that part of the cargo allowed for.
120
MARINE INSURANCE AND AVERAGE
"5th—The next question is whether the freight should be
contributed for. The voyage was broken up ; the voyage can¬
not be said, indeed, to have commenced. The contracts of
affreightment were at an end. blot a dollar of freight had been
earned. How can it be treated as sacrificed? The ship is not
allowed for. Its accessory, the freight,- cannot be.
" When freight was allowed in the Columbian Ins. Co. v.
Ashley (13 Peters 364), it was because the ship was allowed for.
It was lost, as well as the ship, by the sacrifice for the common
good. And when freight pro rata Uineris (that is, the freight
which had been earned at the time of the disaster,) was allowed
in Gray v. Walker (2 Serg. & Rawle, 229,) the ship was also a
subject of general average.
To allow freight in this case would be, in effect, to make con¬
tributors in general average insurers of the freight.
It follows, in this case, that if freight is not to be allowed
for, it is not to contribute."
Whether the property in peril and rescued, must be saved by the
sacrifice.
In the case of the Ship " Great Republic," the scuttling of
the ship was conceded to have partially prevented the spread¬
ing of the fire, and thus saved vessel and cargo from being en¬
tirely consumed ; that in fact, ten feet of the vessel's frame,
and the principal portion of the cargo rescued, owed their safety
to this deed. Therefore, the amount of injury to the ship, and
damage to the cargo definitely traced to that act, were allowed
in general average.
Had the effect of scuttling failed to impede in any manner,
the progress of the fire, Mr. Justice Hoffman does not say
whether the damage resulting from it would have been allow¬
ed, but we infer not.
GENERAL AVERAGE.
121
The Masts cut away were not allowed for the reason, as, Mr.
Justice Hoffman remarks, that it, " though caused by a voluntary
act, did not in reality avert or diminish the peril." And the dif¬
ference of opinion between Mr. Justice Duer and Mr. Justice Hoff¬
man, as to whether "masts on fire which are cut away to save
the ship and cargo, assuming that they are of value at the time
they are cut, should be contributed for"—-it was stated by Mr.
Justice Duer, "need not then be decided, as in the opinion of
both of them the subsequent event, which defeated the expec¬
tation of safety, prevented the loss from being one of general
average."
The elaborate opinion of Mr. Justice Hoffman, concurred in
by so profound a commercial lawyer as Mr. Justice Duer, fully
establishes the rule, that in order to found a claim for contribution,
the property in peril must be saved by the sacrifice.
I cannot, however, but think, that when text writers or
Judges in describing the characteristics of a sacrifice for which
contribution may be rightfully claimed, say the impending peril
must be thereby averted, they go too far. The rule should cer¬
tainly be regarded with some qualifications.
In Stevens and Benecke on Average, by Phillips, pp. 100,
105-107, it is strongly contended that this rule is contrary to
the principles and policy of general average, on the ground
that no one has the right to attempt the preservation of the
whole at the risk of an individual. The reasons given by Mr.
Benecke in opposition to this doctrine, are to my mind conclusive.
The rule, that whenever an extraordinary peril is impending
over the whole adventure, and the master who is the common
agent of all concerned, acting in good faith and with common
discretion, selects a particular part of the property at risk and
destroys it, or exposes it to some special injury or risk with a view
thereby to avert or mitigate the common danger, the owner is
entitled to be compensated by an average contribution, is found¬
ed in the highest equity, and good policy enjoins its liberal ad¬
ministration in favor of the party whose property is voluntarily
sacrificed.
122
MARINÉ INSURANCE ANE AVERAGE.
In the ease of jettison to relieve a ship laboring under a
stress of weather, or to enable her to escape from a pursuing
enemy, the claim for contribution could not be defeated by
proof that the storm had suddenly ceased, or that the enemy's
ship then far behind, was destroyed by an accidental explosion
at the instant of the jettison. It would seem to be enough,
that a real danger exists, that it appears to threaten the whole
adventure, and that the mind of the agent acts upon the ques¬
tion, judges the sacrifice to be conducive to the general interest,
and makes it accordingly.
Contribution is only due from the owner of a ship or cargo
upon its coming to its use, consequently it is quite true to say
that the common concern, or more properly speaking some part
of it must be saved, but this pre-requisite to a case of average con¬
tribution has no special reference to the saving the concern from
the calamity which was impending at the time of the sacrifice.
The rule of contribution, generally adopted by experienced
adjusters in the settlement of general average cases, as well as
the weight of authority in adjudicated cases, appears to be, that,
compensation is due to the owner in general average whenever
an injury of any kind results to part of the property engaged
in a maritime adventure from an act out of the ordinary course
of navigation, intentionally done in contemplation of injury
to a part, but with intent thereby to preserve as much as possi¬
ble from the evil consequences of an extraordinary peril exist¬
ing at the time, and apparently threatening damage to the
whole adventure.
It is necessary that the sacrifice be made by one having au¬
thority to act as agent for all concerned, as for instance the
master or some one rightfully acting in his stead ; it is neces¬
sary that the thing thus devoted to the common service be in¬
jured by the act of devoting it, but it is not necessary that such
act should impair its prospects of safety from the impending
calamity; it is enough that its prospects of safety be altered by
an act not necessary to the navigation of the ship under ordi¬
nary circumstances.
GENERAL AVERAGE, 128
It is necessary that something be ultimately saved from the
adventure or voyage, and come to the hands or use of the own¬
er, but so far from its being neeessary that the saving should
be effected by means of the sacrifice, or that the peril in view
of which, and on account of which the sacrifice was made,
should be thereby, or at all events averted, it does not appear even
necessary to show that the supposed peril existed in point of
fact. However manifest it may be in the event, that the
sacrifice was necessary, and that independently of the sacrifice,
the apprehended evil would not have occurred, the party is
entitled to compensation, if in the exercise of a sound or rea¬
sonable discretion, the master voluntarily subject his property
to injury for the purpose of averting or diminishing an extra¬
ordinary peril which appeared to threaten the safety of the
whole adventure.
If such is the right construction, the law of average contri¬
bution leaves each party to bear the loss which results from or¬
dinary navigation, or the direct action of extraordinary perils,
but makes all concerned co-operators to the extent of their
several interests, in the common fund in respect to losses aris¬
ing from the voluntary devotion of any part by the common
agent of the parties, to an unusual service, for the benefit of
the whole, in averting or beneficially modifying, what to such
agent, in the exercise of a sound reasonable discretion, appears
to be a common danger.
There really seems no substantial basis for the doctrine, that,
in order to found a claim for contribution, the evil must be
averted at all. The sacrifice gives a claim for contribution, not
strictly against the owner, but against the property intended to
be benefited, and if that property survives the adventure, and
comes to the use of the owner, in whole or in part, whatever
its condition, whether sound or partially damaged by the ship¬
wreck vainly sought to be avoided, or by any other means, it
should contribute.
Upon the whole, I think the weight of reason agrees with
what seems to me the weight of authority, that if there be a
124
MARINE INSURANCE AND AVERAGE,
voluntary sacrifice, made for good cause, and with a reasonablé
prospect of saving thereby, other property which would other¬
wise be lost, and this other property is saved in fact, it should
contribute to the loss, whether it was saved by that or by other
means. But see, Barnard v. Adams, 10 How. 270, 303, and
Sturges v. Gary, 2 Curtis, C. C. 59, 66 ; also Parsons on Mari¬
time Law, vol. 1, p. 288.
Deviation to repair loss, and consequent damage.
Is the accidental stranding of a vessel to he deemed a voluntary
or intentional stranding ivithin the meaning of the law, when it
appears that the stranding ivas either directly or incidentally oc¬
casioned by the intentional exposure of the vessel to extraordinary
perils out of the usual course of navigation, and of the ship7s du¬
ties as a common carrier ?
No case has yet determined that accidental damage, to the
risk of which the deviation has exposed the vessel or cargo,
should be contributed for in general average ; and especially
in the case of loss or damage by stranding, the language of the
American and English cases and books is uniform, that to make
a stranding a general average loss, it must be the immediate
result of the act and volition of man directed toward that parti¬
cular object.
An accidental stranding which was the consequence of risks
incurred by deviating to repair damage occasioned by a vis ma¬
jor or cas fortuit, is not general average.
When however, a part of the cargo is selected from the rest
to be subjected to an extraordinary peril, as by being placed in
lighters, the loss of it in consequence must be contributed for
yet the same principle does not apply to the ship, for the car¬
rier is bound by the contract to expose his vessel and her furni¬
ture if necessary, though not actually to destroy them.
GENERAL AVERAGE.
125
Though the expenses of entering a port to repair a particular
average, are contributed for in England, and in America, even
the wages and provisions of the crew during the deviation, it
has been never held that risks, incurred by such a deviation, are
assumed by all the interests ; nor that, when they are different
and greater than those incurred in the ordinary course of navi¬
gation for the vovage, a loss in consequence is to be contributed
for ; and lastly, all the cases and writers, both American and
foreign agree, that, to make a loss by stranding, a general aver¬
age loss, it must have been voluntary, or the immediate effect
of a resolution to effect that object.
Is the sum awarded or agreed to be paid to ships, boats, pilots
etc., for bringing a ship, when at sea in distress, into a port ; or,
for unloading the ship and getting her off the ground when forced
on shore, general average ?
It is, as also the charge of taking off anchors, cables etc., and
rendering assistance generally.
Wages of people employed to guard the property during re¬
pairs, or of cutting a way for thé ship through the ice when she
has become frozen up in a port of distress, and all charges of a
similar kind, are contributed for in general average, provided
the ship put into port, in consequence either of sea damage, or
to repair purposely inflicted losses.
But it must be carefully borne in mind, that none of the
above charges can be allowed in general average, when the ship
is obliged to put in merely in consequence of contrary winds,
or for the purpose of procuring water and provisions, in such
cases these expenses fall under the head of petty averages, and
must be borne by the ship-owner alone.
126
MARINE INSURANCE AND AVERAGE
If goods, which are taken out into lighters for the common bene¬
fit, are thereby, or while in the lighter s, lost or injured; does this
generally constitute an average loss ?
It does. Lewis v. Williams, 1 Hall, 480. See also, 1 Mag,
160, Case ix. Goods were taken out of a vessel which had
sprung a-leak at sea, and put on hoard other vessels that the
leak might be discovered and stopped. In consequence of this
she was enabled to prosecute and complete her voyage. The
goods taken out were captured ; and were contributed for in
general average.
But if, after the cargo is partly taken out, the ship and the
cargo in her are Jost, and the goods in the lighters saved, they
do not contribute for the property lost, for it was not lost for
their benefit, nor as a consequence of any measures taken for
their advantage.
If it be necessary for the general benefit to take out and store
the cargo until the ship is repaired, and then return it, is the tvhole
of this expense general average ?
It is, and if the goods are damaged in consequence of such
removal, they are to be contributed for.
In Shelton v. Brig Mary, U. S. D. C. Mass, 5 Law Reporter;
75, it was necessary to remove the cargo in order to repair the
vessel, but the cargo was so much damaged that it was also ne¬
cessary to unload it for its own preservation. While on' shore,
part was destroyed by fire. Held, under these circumstances,
that no contribution was due, as the owner could not be con¬
sidered as having made a voluntary sacrifice, for the purpose of
prosecuting the voyage.
In Bond v. The Superb, 1 Wallace, Jr., 855 (cited in Parsons'
Maritime Law, 298), it was held that the removal of part of a
GENERAL AVERAGE.
127
cargo of perishable fruit in a port of necessity, for the purpose
of repairs, which increased an incipient decay, and hastened a
partial destruction of the fruit, did not give the owner of the
cargo a claim for general average.
Is Specie held liable to contribute in general average for ex¬
penses incurred at port of distress ?
The liability to general average continues until the property
has been completely separated from the rest of the cargo and
from the whole adventure, so as to leave no community of in¬
terest remaining.
If the enterprise is not abandoned, and the property, although
separated from the rest, is still under the control of the master
of the vessel and liable to be again taken on board for the pur¬
pose of prosecuting the voyage, the common interest remains,
and whatever is done for its protection is done at the common
expense.
In Nelson v. Belmont, the cargo of a vessel being on fire,
the master transferred a quantity of specie to another ship,
which, by his request, conveyed him into a port of distress. He
there incurred expenses in putting out the fire and repairing
damages to the vessel, the specie being meantime deposited in
bank. The damage was found to be such that the cargo was
sold and the voyage abandoned. Held, that the specie was
liable in general average for the expenses at the port of dis¬
tress.
When funds are raised for the common benefit, must all the
interests assisted repay them ?
128
MARINE INSURANCE AND AVERAGE.
They must. Also, all losses incurred necessarily in raising
the funds, as damages, premiums, extra interest, brokerage, &c.
If a ship is wrecked, and the master forward the goods to the
port of destination, is the expense of doing so, included in the
average contribution ?
When a vessel is condemned and sold at an intermediate
port, or is dashed against rocks or land, and broken, or other¬
wise rendered useless by violence and fracture, the community
of interest cannot longer be considered to exist; therefore, the
charges become special. The sending forward of the cargo be¬
ing the means of earning freight, the expense falls upon that
interest as a special charge.
If the expense is greater than the original freight, is the excess
included in the contribution ?
No. The expense being incurred for the benefit of the cargo,
it must bear the extra freight as a special charge.
How is the extra freight to be apportioned?
According to bulk, and in proportion as the whole freight
bears to the excess, thus
GENERAL AVERAGE.
129
Freight for Bill of
Lading,
On 1 Case,
$4.00 pays extra freight,
$1.00
1 Cask,
2.50 do.
0.68
1 Bbl.,
1.25 do.
0.31
1 Box,
0.25 do.
0.06
$8.00
$2.00
In case the expense of forwarding does not amount to the
original freight, to whom does the surplus freight belong?
*
To the ship-owner, who is responsible to that extent to his
underwriters on freight as so much salvage received by him for
their account; and accordingly to be deducted in settlement of
the loss under the policies.
Is the salvage of freight liable to contribute to the general
charges ?
It is. Upon one half only, the other part being considered
consumed by the wages and provisions to the ship's company.
When the ship is stranded and the goods are forwarded to the
nearest port, which happens to be the destination of the ship, is
the expense of doing so, included in the average contribution ?
The lightering of the cargo when stranded, to enable the
9
130
MARINE INSURANCE AND AVERAGE.
vessel to float again, and at the same time place the cargo in
better safety, is considered by Adjusters and Underwriters of
New York, a legitimate item for average contribution. The
same charge in Boston, according to the rule adopted there, is
chargeable to the earnings of the vessel.
But if the vessel is wrecked and rendered useless by the
stranding, the sending forward the cargo, as we have seen, is a
special charge to the interest benefited.
If the ship is lost or rightfully condemned, and the master tran¬
ships the cargo* is the expense of his necessary detention, or trav¬
eling to an adjacent port to procure a vessel for that purpose, to
be included in the contribution ?
This expense, as also a reasonable compensation for his time
and labor, ought to be charged to the cargo transhipped.
But if the master's detention is caused by the ship, as well
as the cargo, the expense ought to be apportioned.
If the voyage is abandoned, ought any part of the expense of
delay or traveling to consult the ship-owner or underwriter upon
the propriety of abandoning the voyage or repairing the ship, to
be charged to the cargo?
No part of this expense can be rightfully charged to the
cargo if the voyage is abandoned ; and probably not if the voy¬
age is completed.
The Adjusters in New York, usually allow the wages of the
master from the date of leaving with funds and documents,
until his arrival at the home port; as also, the necessary deten-
GENERAL AVERAGE. 131
tioii afterwards in explaining papers, and aiding the adjusters
in the settlement of loss, to pass as a common charge.
Judge Marvin, in the case of Roberts, et. al. v. Ocean Star
and Cargo, says " In a few instances in this Court (U. S. D. C.,
Florida), the master's passage money home has crept into the
accounts, and has been allowed to pass as a common charge;
but, no part of this expense can be rightfully charged to the
cargo. The cargo is not benefited by the masters going home."
But see Black v. McGilvery, 38 Maine R. 287 ; Duncan v.
Reed, 39 id. 415; Lawrence v. New Bedford Ins. Co., 2 Story
471; Marvin on Wreck and Salvage, page 27.
How is the loss or damage in efforts made to get a stranded
ship afloat, usually apportioned ?
If loss or damage happens to the anchors, chains, hawsers or
other parts of the ship, in consequence of efforts made to get
a stranded ship afloat with the cargo or a part thereof in, or
with a view to the common benefit, such loss or damage, if the
ship is again set afloat, should be apportioned upon ship and
cargo. But if the ship is not again set afloat, the loss or dam¬
age should rest where it falls.
If, the ship being actually lost, the blocks, falls, ropes or
other parts of the ship are lost or damaged in getting out the
cargo, such loss or damage, estimated with reference to the ac¬
tual value of the articles as detached materials, ought to be
made good to the ship^ by the cargo saved.
If goods, put into a wrecking vessel to lighten the ship off the
reef, are lost or damaged, the ship, if got off, should contribute
to the loss or damage. *
If lost or damaged by the fault of the wrecking vessel, the
wrecker should make good the loss or damage, though his lia¬
bility, without payment, will not exonerate the ship for its con-
132
MARINE INSURANCE AND AVERAGE.
tributive share. Per Marvin, J., case of Ship Ocean Star and
Cargo. U. S. D. 0., Florida. Key West, 1861.
If sails, -ropes and other materials, are cut up and used at sea
for the purpose of stopping a leak occasioned by storm, are they
proper subjects of general average ?
\
They are ; for they are required for the general safety ; so,
also, where like materials are used to raise a jury-mast, or for
extraordinary purposes of a similar nature which the general
safety may require, are also proper subjects of general average.
As a general rule, are not all sacrifices for the common benefit,
made good by general average contribution ?
All damage purposely done to the vessel, to preserve the
whole from impending danger, is general average; such as the
cutting away of masts, rigging &c., when the ship is in dis¬
tress ; the cutting or slipping from anchors to avoid running
ashore or being run foul of, or for the purpose of getting clear
of another vessel ; and, in general, the diversion of stores or
any materials of a ship from their original and intended pur¬
pose to some other use necessary but not contemplated, brings
them within the class of general average. So, sails used to
cover the deck or hatches, after an accident, to prevent water
going below, or hauled under the ship's bottom to stop leaks
there; so, a hawser or ropes êmployed to support a mast or to
secure a rudder; so, even, coils of rope, being the ship's stores,
used on any extraordinary emergency for the general safety of
ship, cargo and freight ; so, ropes and other articles used for
GENERAL AVERAGE.
133
chocking and securing a cargo of iron or other heavy goods
which has broken adrift in the hold and endangers the general
safety. But, if, when owing to straining, the decks have be¬
come leaky, and to protect the cargo below from drip, sails are
taken into the hold to cover the perishable merchandise and
are thus injured or destroyed, the case is different ; the sole ob¬
ject of the sails being so used to cover the cargo and prevent
injury to it, and the loss or damage received by them is appli¬
cable to the cargo solely.
If new articles are cut Up and used for general average pur¬
poses, such as sails which have never been set, or ropes which
have never been uncoiled, the loss to the ship-owner should be
made good without the deduction of a third, new for old.
But where uncoiled rope has been taken for temporary re¬
pairs, &c., it will generally be considered as evidence of its not
being entirely new, or of the original quantity. And so, all
other articles charged to general average net, are usually care¬
fully investigated by underwriters and others interested, as the
inference is against their being new.
Are gratuities to seamen by the master, in time of danger, in
order to encourage them to do their duty, proper subjects for con¬
tribution?
The ordinary crew of a ship are not to be paid an additional
sum for their extraordinary exertions, because it is their bound-
en duty to give their utmost efforts for the preservation of the
ship and the prosecution of the voyage ; and to reward men for
doing their plain duty is an immoral act having a very bad
tendency. If once seamen found that in the hour of peril they
were able to strike a bargain with the master for their services,
the very worst consequences would ensue.
There are a few exceptional cases, however, where the judg«
184
MARINE INSURANCE AND AVERAGE*
ment of the adjuster must decide whether the circumstances
hear out some additional payment to the crew :—as, for in¬
stance, when a ship in a disabled condition puts into a port
where leaks cannot be stopped, or where repairs cannot be
4
effected without very heavy expenses, and it becomes highly
desirable to reach, if possible, the place of destination, yet the
Consul is of opinion that the ship's company cannot be forced
to go to sea again in the vessel's then condition ; in such a case,
if the offer of additional pay, and an allowance of additional
victuals and spirits prevail with the crew to proceed 011 the
voyage, and to redouble their exertions, the successful result of
such an arrangement would justify the proceedings, and the par¬
ties interested would scarcely object to a payment productive of
so much advantage to themselves, and only questionable on
more theoretical considerations.
But, as a general rule, gratuities to sailors, paid or promised,
to increase their exertions during peril, do not constitute an
average loss.
Are passengers? services contributed for ?
If a ship having passengers on board, spring a leak, or from
some other cause require assistance by additional hands, and
the passengers are employed to pump and aid in navigating the
vessel, the sums paid to them for their labor are to be treated as
if the aid given were that of strangers.
Under what circumstances, and to what extent is the expense
of getting off an accidentally stranded ship to be contributed
for?
GÈNËRAX, AVERAGE
135
The expense of discharging the cargo to get a vessel afloat
that has been accidentally stranded, and that of re-loading the
cargo, and the other expenses requisite to enable the vessel to
proceed on the voyage, except those of making repairs, are in
practice brought into general average, where the vessel, after be¬
ing got off, proceeds with the same cargo.
But, in case the lightening of the vessel does not make her float,
and other means are necessarily resorted to for this purpose,- such
as buoying the vessel with casks, or making a channel, are the ex¬
penses incurred on the vessel after the cargo is landed, to be con¬
tributed for ?
Mr. Phillips, in his Treatise on Insurance, § 1312, says, "after
the cargo is landed, these expenses are incurred for the benefit
of the vessel, and are not any more properly the subject of gene¬
ral contribution than the repairs of the vessel."
There is no doubt that when the interests are once undeniably
separated, the charges incurred on each interest are special to
that interest benefited ; but it is denied by some experienced
Adjusters, that the general interest is dissolved by the removal
of the cargo to a place of safety. They argue, that if such is
the result, no ship-master will permit the whole cargo to be re¬
moved from the vessel's hold, but at the prejudice of the owner
or consignee of the cargo, will reserve a portion, if only a small
part, to participate in the risk, so that a community of interest
shall remain intact to contribute to the whole expense.
That the ship-owner is responsible for a wrongful act of the
master, is not to be denied ; but equally true is it, that he has
the right, in the exercise of his judgment, to retain a part, or
the whole of the cargo, until the result is manifest ; and I think
no such inducement should be allowed to warp his judgment.
186
MARINE INSURANCE AND AVERAGE.
Where necessary repairs to complete the adventure cannot he
made at the port of refuge, or without very considerable delay,
and to avoid which, and heavy expenses for storage, commissions
etc., the cargo is reshipped in other vessels, and the original ship,
thus lightened, ù temporarily or partially repaired, to enable her
to reach her port of destination, is the new freight a subject
for general average contribution, or is it a special charge to
f reight ?
In equity, the new freight, standing in the place of the ex¬
penses of a voyage of necessity of the ship to another port for
repairs, or, in the place of the incidental expenses of delay to
refit at the port of refuge, should he contributed for in general
average.
I am, however, unable to find any decisions expressly affirm¬
ing or disaffirming this doctrine. And the practice with ad¬
justers is not uniform on this point.
But, I apprehend, where the reshipment was done with the
view of, and resulted in a saving to, the general interest, there
can be no objection to making the new freight a common
charge in contribution.
What is the rule with regard to consequential damages?
All the immediate and direct consequences of a sacrifice, al¬
though these consequences were neither intended nor benefi¬
cial, are to be taken as entering into and forming a part of the
sacrifice ; and the value of them is to be added to the value of
the original and intended sacrifice, to ascertain the whole sum
which is to be averaged as a loss for the common benefit.
When a ship is in peril so imminent that her total loss is inevi
GENERAL AVERAGE.
»
137
table to all appearance, is a voluntary stranding made with a
view of saving the ship and her cargo from total destruction to
be contributed for, in the event of any thing being thereby saved ?
This is a question upon which there has been a great diver¬
sity of opinion. Many contend that where the destruction is
inevitable the stranding cannot be voluntary in the sense of the
rule, and that the ship instead of being sacrificed by exposure
to a greater peril, is in fact submitted to a less, and that this is
done in the course of ordinary duty and so not an act of sac¬
rificing at all.
Judge Parsons, in his valuable Treatise on the Maritime
Law, vol. 1, page 291, states the rule of law thus: "If a ship
must inevitably be cast upon a shore, and all that the master
does is to select a place, a time, and a mode of stranding, this
is not a voluntary sacrifice, and, therefore, not an average loss.
But if the master has a substantial and valuable chance of sav¬
ing his ship, although this chance may not amount to a proba¬
bility, and voluntarily throws this chance away in order to
make sure of saving his cargo, the cargo must contribute to
repay the loss." And he adds—" We cannot doubt that this
must be the rule, although, it may often be difficult to deter¬
mine which side of the rule a case falls."
It was argued by counsel in the case of the Ship " Brutus,"
" If the danger is not èo great that the loss is otherwise inevi¬
table, where is the right of the master to anticipate or hasten
the destruction of any part of the adventure ? Does a master
ever make (rightly) a jettison, cut away a mast or run his ship
ashore, unless the loss at the time he resolves on the measure
is inevitable unless he resorts to it? Is the master to throw
over cargo, or mutilate his ship out of mere apprehension?
Does he ever do it unless all reasonable hope of otherwise sav¬
ing the adventure is gone ?. He is not to be justified in a fear
from slight causes, nor in anticipating that total destruction to
a part which awaits the whole adventure, unless to all human
judgment safety from any other measure is hopeless. When
188
MARINE INSURANCE AND AVERAGE!*
the ship has been overcome in her struggle with ocean and tem¬
pest, and is in danger of foundering, and when lightening her
is the only measure to avert this otherwise certain peril, then
first arises the right to throw over the cargo ; it is a right only
born at the last degree of distress in his ship. If it can be
shewn that the vessel was not in much danger, that she would
not in all human judgment sink unless relieved, the jettison
would be unwarranted, so too in any case of voluntary strand¬
ing, if it could be shewn, that, by any means in the master's
power, by holding on to anchors, or by making a pressing sail,
he could avoid the danger, he is not warranted in beaching his
ship. The peril, therefore, being in its nature inevitable, so far
from being a reason to prevent a contribution, is on the con¬
trary essential to it. The greater the danger and the more in¬
evitable by any other means than by measures to anticipate its
action, the more justifiable is the act of courage thus anticipat¬
ing it, and the more rightful the demand of contribution."
This question, however, was fully settled by the Supreme
Court of the United States, in December Term, 1850, in the
case of the Ship " Brutus." (Barnard v. Adams, 10 Howard
270, 802.)
Mr. Justice Grier, in delivering the opinion of the Court,
said:—" The Ship "Brutus" was lying at anchor at the usual
place of mooring vessels in the outer roads of Buenos Ayres,
about seven miles from the shore. The width of the river at
that place, between Buenos Ayres and Colonia on the opposite
shore, is about fifteen miles. The Brutus had taken her cargo
on board for New York, consisting of skins, dry hides, horses
and jerked beef. The master was on shore, and she was in
charge of the first mate, with a crew consisting of twelve per¬
sons in all. On the 7th a gale had commenced, which on the
8th had become dangerous. About four o'clock the next
morning, the ship began to drag her anchors, and the small
lower anchor was let go. About nine o'clock in the even¬
ing, the gale increasing, the best bower anchor parted with a
loud report. About ten o'clock, the small bower parted, and
GENERAL AVERAGE.
139
the ship commenced drifting broadside with the wind and
waves. Endeavors were then made, to get the ship before the
wind, which failed on account of the chains keeping her broad¬
side to the sea, which was making v a breach over her fore and
aft. The chains were then slipped and the vessel got before
the wind, two men were put to the wheel, and onë man to the
lead, and it was determined 'to run the ship ashore for the
preservation of the cargo and the lives of the crew.' It was
now about eleven o'clock at night, when the ship was got be¬
fore the wind and under command of the helm. The shore
next to Buenos Ayres, towards which the ship had been drift¬
ing, had banks and shallows extending out some three or four
miles. If the vessel had been driven on these by the tempest,
she would have been wrecked and lost together with the cargo
and crew. On the Colonia side of the river, were sunken rocks
several miles from the shore. ' For the purpose of saving the
cargo and crew any how, and possibly the vessel,' she was
steered up the river, inclining a little towards the Buenos Ayres
side, with the intention of running her on shore at a conveni¬
ent place. After they had^ proceeded up the river, about ten
miles, the mate discovered from the flashes of lightning, that
the vessel was approaching a point called St. Isidro, off which
he perceived something black, which he supposed to be rocks,
and being afraid, or 'thinking it impossible to get by' this
point without being wrecked and lost, he directed the course
of the vessel to be changed towards the shore, where he had
seen what he supposed to be a house, but which turned out to
be a large tree. About midnight the vessel struck the beach
and the rudder was knocked away. The fore-sail was then
hauled up, but the stay-sail was let remain to keep her head
straight, and she continued to work herself up until daylight.
The place-where she was stranded was a level beach about 200
yards above ordinary low water mark. The ship was not
wrecked or broken up, though somewhat damaged, and the car¬
go was not injured. The master chartered the Bark ' Serene,'
and transferred the cargo to her. But it was found that, with
140
MARINE INSURANCE AND AVERAGE.
tlie means to he obtained in that vicinity it would have cost
more than the ship was worth to get her off the beach. She
was therefore sold. The ' Serene' afterwards arrived safely at
New York, under command of Captain Adams, former master
of the ' Brutus/ In transhipping the jerked beef from the
4 Brutus' to the 'Serene', a portion of it got wet, and when it
arrived at the port of New York, it was all found to be worth¬
less -x- -x-
" It cannot be denied by any one who will carefully compare
this case with that of the ' Hope ' (13 Peters, 831), unanim¬
ously decided by this court, and the cases of Gaze v. Reilly (3
Wash. C. C. It. 298), Sims v. Gurney, (4 Binney 413), and
Gray v. Wain (2 Serg. & R. 229), which have received the 'un¬
qualified assent * of this Court, that whatever distinctions may
be taken as to the accidents and circumstances of these cases,
they do not materially or substantially differ from the present,
so far as the point now under consideration is concerned ; and
that we are now called upon to reconsider and overrule the doc¬
trine established by those cases. But however they may appear
to be contrary to certain abstract propositions stated by some
text writers on this subject in England, and a case or two in
this country, the policy and propriety of overruling our own
and the three other decisions which have received our 'unanim¬
ous approval', even if we are not now satisfied with their cor¬
rectness, may well be doubted. There are few cases to be found
in the books, which have been more thoroughly, laboriously,
and ably investigated, by the most learned counsel and eminent
judges. In questions involving so much doubt and difficulty,
it is of more importance to the mercantile community, that the
law be settled and litigation ended, than how it is settled. No
decision of a question depending on such nice and subtle reason¬
ing will meet the approbation of every mind, and if the cases
we have mentioned, have failed of this effect, it may well be
doubted, if any reasons which could be given for overruling
them would prove more successful. # * * * * * The
law of general average has its foundation in equity. The prin-
GENERAL AVERAGE.
141
ciple, that, 'what is given for the general benefit of all, shall
be made good by the contribution of all,' is recommended not
only by its equity, but also by its policy, because it encourages
the owner to throw away his property without hesitation, in
time of need/
" In order to constitute a case for general average, three things
must concur. 1st. A common danger; a danger in which
ship, cargo and crew all participate ; a danger imminent, and ap¬
parently ' inevitable ' except by voluntarily incurring the loss
of a portion of the whole to save the remainder.
" 2d. There must be a voluntary jettison, jactus, or casting
away of some portion of the joint concern for the purpose of
avoiding this imminent peril, periculi imminentes evitandi causa,
or, in other words, a transfer of the peril from the whole to
a portion of the whole.
" 3d. The attempt to avoid the imminent common peril must
be successful. It is evident from these propositions, that the
assertion so much relied on in the argument, viz :•—' That if the
peril be inevitable there can be no contribution,' is a mere
truism; as the hypothesis of the case requires that the com¬
mon peril though imminent, shall be successfully avoided.
Those who urge it must therefore mean something else. And
it seems when more carefully stated, to be this :— ' That if
the common peril was of such nature, that the jactus or thing
cast away to save the rest, would have perished anyhow, or
perished 'inevitably/ even if it had not been selected to
suffer in place of the whole, there can be no contribution/
If this be the meaning of this proposition, and we can dis¬
cover no other, it is a denial for the whole doctrine upon
which the claim for general average has its foundation. For
the master of the ship would not be justified in casting a
part of the cargo into the sea, or slipping his anchor, or cut¬
ting away his masts, or stranding his vessel, unless compel¬
led to do it by the necessity of the case, in order to save
both ship and cargo, or one of them, from an imminent pe¬
ril which threatened their common destruction. The neces-
142
MARINE INSURANCE AND AVERAGE.
sity of the case must compel him to choose between the loss
of the whole and part ; but however ' metaphysicians may
stumble at the assertion, it is this forced choice, which is neces¬
sary to justify the master in making a sacrifice, (as it is called;
of any part for the whole. Hence, the answer of every master
of a vessel when examined, will be, ' I considered the des¬
truction of both ship and cargo 6 inevitable ' unless I had
thrown away what I did.' ' The goods thrown away would
have gone to the bottom anyhow.' If the case does not show;
that the jettison was ' indispensable ' in order to escape the
common peril, the master would himself be liable for the loss
consequent therefrom. It is for this reason, that the ordinances
of Marseilles, require that the master should have a consulta¬
tion with the supercargo and crew, as to the absolute necessity
of the measure, and as evidence that it was not done through
the vain fears, cowardice, or imprudence of the master. But the
right to contribution was not made to depend on any real or
presumed intention to destroy the thing cast away, but on the
fact that it has been selected to suffer the peril in place of the
whole, that the remainder may be saved. The anchor lost by
voluntarily slipping the cable may be recovered, the goods
jettisoned may float to the shore and be saved, and yet if the
anchor or goods had not been cast away, they would have
been ' inevitably ' lost, and there would have been a total
loss of both ship and cargo. Take the case of Caze v. Reilly.
A vessel is completely surrounded by the enemy's cruisers.
It is impossible to save both ship and cargo from capture
and a total loss. A part or the whole of the cargo is thrown
overboard, and thus the vessel escapes. This is an admitted
case for contribution. And is no answer to the claim of the
owners, to say, 'Your cargo was 'inevitably' lost; as it was
situated it was worthless, and consequently you sacrifice noth¬
ing for the common benefit. Besides a portion of it floated
011 shore and was saved from capture, or was fished from the
bottom without sustaining much injury ; the throwing it over¬
board was the best thing that could be done for it under the
GENERAL AVERAGE. 143
circumstances, as without that it would have been ' inevitably
♦
lost.' But suppose, as in the case referred to, the ship cannot
be saved by casting the cargo into the sea, but the cargo which
is of far greater value, can be saved by casting the vessel on
the land, or stranding her. Is it any answer to her claim for
contribution, to say, that her loss was 6 inevitable ', she was in
a better situation on the beach, than in the hands of the enemy,
or at the bottom of the sea, or wrecked upon rocks, and there¬
fore there was no such sacrifice as would entitle her to contri¬
bution. We cannot comprehend why this argument should
have no weight in the first case (which is an admitted case of
contribution in all the books), and yet that it should be held as
a conclusive obstacle to the recovery in the latter. The repli¬
cation to this objection in the first instance, and the conclusive
one, is ' the vessel and cargo were in a common peril, where
both or all could not be saved ; the vessel alone, or the vessel
and part of the cargo has been saved, by casting the loss upon
the cargo, and this constitutes the very hypothesis on which
the doctrine of general average rests.' Why then should there
be a difference in principle, where the cargo is damaged or lost,
by being cast into the sea, and the ship saved; and the case,
where the ship is damaged or lost by a voluntary stranding, or
by being cast on the land, and the cargo saved, is a question
which has never yet been satisfactorily answered. In fact, we
do not understand the counsel to contend that the Brutus was
not entitled to contribution, because she could not be got afloat
at a less cost than her value. The principle on which the
counsel relied, is that enunciated in the opinion of the court
in Walker v. United States, 11 Serg. and R. 61. 'It is not
enough,' says the learned Judge, ' that there be a deliberate
intent to do an act which may or may not lead to a loss ; there
must be a deliberate purpose to sacrifice the thing at all events,
or at the very least to put it in a situation in which the danger
of eventual destruction would be increased.'
* ***********
" The fact that goods thrown overboard are in no worse or
144
MARINE INSURANCE AND AVERAGE.
even a better condition as to chances of safety than if they had
remained on board, or that the stranded vessel is in a better
condition than if she had been wrecked or sunk, cannot affect
the right to contribution of that part which was selected to suf¬
fer in place of the whole. * * * Let us briefly
compare the facts of this case with the principles we have
stated, and inquire, 1st—What was Jhe common peril, and 2d—
Was any portion of the joint adventure saved from it, by the
transfer of the risk or loss to another.
* " The common peril, which in this case was sought to be
avoided, was shipwreck, or the destruction of vessel, cargo and
crew. The ship lay at anchor—she was assailed by a violent
tempest—her cables broken—her anchors gone; and she was
being driven by the force of the gale broadside upon the shal¬
lows extending three miles out from the shore at Buenos Ayres.
In order to save the cargo and crew, it is determined to put on
sail and run up the river to find a safe place to strand the ves¬
sel. They proceed ten miles up the river, when they encoun¬
ter another peril at Point St. Isidro. To avoid being wrecked
on the rocks the course of the vessel is immediately changed,
and she is steered directly for the shore, and run upon a sandy
beach where she is left high and dry by the tide. The cargo is
saved without injury, but the ship is on the land, where she is
comparatively valueless, on account of the expense which must
be incurred to replace her in her element. By the will and di¬
rections of the master, she has become the victim, and borne the
loss, that the cargo might escape from the common peril. It
is true she has not been wrecked or lost, as she inevitably would,
had she been driven on the flats, by the tempest at Buenos
Ayres, or been foundered on the rocks off Point St Isidro, but she
has voluntarily gone on shore, which was death to her, while it
brought safety to the cargo. And we are of opinion that she has
the same right to demand contribution, that the owners of the
cargo would have had against her, had it been cast into the sea to
insure her safety. There is therefore no error in the instruction
given by the Court below on this point. 2d—The second and
GENERAL AVERAGE.
145
third instructions excepted to, have reference to the place at
which the goods are to he valued for the purpose of adjusting the
general average.
" The adventure was continued notwithstanding the disaster,
and terminated at New York The goods were not returned to
the shippers, and consequently no contribution could be collec¬
ted at Buenos Ayres. The fact that the Brutus was' left on the
strand and the adventure continued till the cargo reached its
destination in another vessel cannot affect the case. The place
where average shall be stated is always dependent, more or
less, on accidental circumstances, affecting not the technical
termination of the voyage, but the actual and practical closing
of the adventure. We see nothing in the circumstances to take
this case out of the general rule that contribution should be
assessed on the value at the home port.
" 3d—The third exception relates to the allowance of the
wages of the crew after the ship was stranded. But as they
were employed as mariners and quasi-salvors of the cargo, labor¬
ing for the joint benefit of the adventure, we think the excejj-
tion is not supported. Their services were essential to the
entire saving of the cargo. Their duties did not cease with the
stranding, and they were entitled to wages while their services
were required for that purpose. If the same services had been
rendered by strangers, the expense would have been properly
charged as a result of the disaster, in stating the average.
That the same services were rendered by the crew, after the
Brutus was stranded, and the voyage as to them technically
broken up, cannot affect the case. Even if their obligation to
the ship had ceased, still their services to vessel and cargo en¬
title them to wages and support as a general charge.
"4th— The two and a half per cent, allowed for collecting the
general average, rests upon the usage and custom of merchants
and average brokers. It is a duty arising out of the unforeseen
disaster and resulting directly from it. Usually there are con¬
tributions to be paid out as well as received by the ship-owner.
It is a troublesome duty not embraced in their obligation as
10
146
MARINE INSURANCE AND AVERAGE.
mere carriers. The usage is therefore not unreasonable. The
objection, that it is paying the owners for merely collecting
their own debt, is founded on the accidents or peculiar circum-
cumstances of the case, and does not affect the general princi¬
ple, on which this usage is based."
This important decision, therefore, seems to establish the
law, that, where the situation of the ship is such, that the
power of voluntary action remains, so that notwithstanding the
fury of the elements, the point of stranding may be selected,
and benefit results from the change in the course of the ship ;
or if the place where she actually takes ground is of such a na¬
ture as to involve less danger to the cargo, than that to which
she was drifting before her course was altered, it constitutes a
claim for contribution.
This decision of Mr. Justice Grier (Barnard v. Adams, 10
Howard 270), in connection with the elaborate investigation of
Mr. Justice Story, in the case of Col. Ins. Co. v. Ashby, 13 Pe¬
ters 331 ; also settles a question on which there has been some
conflict of authority, viz.: Whether there is to be contribution
if the vessel is, by the stranding, totally lost?
It may now be considered as the settled doctrine, that the
ultimate loss of the ship makes no difference in regard to the
liability of the owners of the cargo to contribute.
CHAPTER XII.
ADJUSTMENT OF GENERAL AVERAGE AND CONTRIBU¬
TION.
The leading principle of general average contribution, to
whatever kind of loss it may be applied, is this:—That all the
parties interested in the adventure, for the benefit of which the loss
ivas incurred, should be sufferers by the loss in exact proportion to
the extent of their interests, but no further; and this object can
only be attained when the party whose property has been sac¬
rificed, whose money has been disbursed, or whose credit has
been pledged for the common benefit, is placed, by the result
of the adjustment, exactly in the same position he would have
stood in had the sacrifice been made, the expense incurred, or
the credit pledged, not by himself, but by some other of his co-
adventurers. This is the universal principle of general aver¬
age contribution, whether the loss arose from sacrifices, expen¬
ditures, or a sale of goods for the common benefit. Arnould
on Ins., § 921.
What is the rule for estimating the value of the ship for the
purpose of general average?
148
MARINE INSURANCE AND AVERAGE.
The true value of the ship for contribution, is the amount
that her hull, masts, yards, sails, rigging and stores would pro¬
duce after the sacrifice is made, with the addition of the amount
made good by the general average contribution. Her contrib¬
utory value, in fact, is her worth to the owners in the state in
which she arrives.
Value of Ship, after repairs, - $40,000
Less, gross repairs. - 10,000
— 80,000
Add, amount contributed for, - 2,500
Contributory Value of Ship, - $32,500
What is the rule for ascertaining the contributory value of
Freight ?
Only the freight earned pays (Lee v. Grinnell, 5 Huer 400,431);
and if that be only a pro rata freight, that only contributes
(The Nathaniel Hooper, 3 Sumner 542 ; Magrath v. Church, 1
Caines 196) ; and from the freight all expenses necessary for
earning it, should be first deducted.
Whatever freight the ship loses by jettison of the goods, or
by any sacrifice, is, of course, to be contributed for. (Nelson
v. Belmont, 5 Duer 810, 322.) So if she be voluntarily strand¬
ed to save the cargo, and being lost cannot carry it on and earn
her freight, this is a part of the sacrifice. (Col. Ins. Co. v.
Ashby, 13 Peters 331, 344.) When freight is entitled to con¬
tribution, the value is the gross freight lost by the sacrifice.
The net freight only on the goods saved and carried, is called
upon to contribute. This net freight is usually ascertained by
deducting a certain proportion from the gross freight ; as one
ADJUSTMENT OE GENERAL AVERAGE AND CONTRIBUTION. 149
half, one third, or one fourth. In most commercial ports some
rule prevails, which is sanctioned by general usage there. The
practice in New York, has been to ascertain the contributory value
of freight by deducting one half of the gross amount; in Massa¬
chusetts, by deducting one third ; in Maine, by deducting one
third; in Maryland, by deducting one third; in Virginia, by
deducting one half; in Louisiana, by deducting one third; in
Alabama, by deducting one half; in Pennsylvania, by deduct¬
ing one third; in Georgia, by deducting one half; in Texas, by
deducting one half ; in San Francisco, by deducting one half ;
in Havre, France, one half is deducted as in New York; in
England, the gross freight, including primage, less wages and
port charges, contributes.
In Mutual Safety Ins. Co. v. Cargo of the Ship George 01-
cott, Adm. 157, it was held, that the freight should contribute
at its gross value, deducting therefrom all necessary expenses
incurred, if any, subsequent to the wreck. If there is a char¬
ter-party, and freight is to be paid for the round voyage out
and home, and the principal object of the voyage is to obtain a
return cargo, if a loss occurs on the outward voyage, the freight
for the round voyage contributes. Shelton v. Brig Mary, U. S.
D. C., Mass., 5 Law Reporter 75.
Charter parties are generally worded, so much to be consid¬
ered earned upon the delivery of the outward cargo, and the
balance on the delivery of the homeward cargo. If no agree¬
ment or division of the charter is thus made in the written in¬
strument, it is the custom of Adjusters in New York, to esti¬
mate the amount at risk at the time, and which is usually com¬
muted to be, one half on each passage.
The decision quoted above, we must, therefore, be allowed
to dissent from. It is a plain rule in general average matters,
that what is contributed for, must contribute. A vessel (for
example) is chartered for a round sum for a voyage " out and
home;" as is usual, freight is taken on board for other parties
than the charterers—in the course of the outward voyage she
is voluntarily stranded and becomes a total loss. The vessel is
150
MARINE INSURANCE AND AVERAGE*
contributed for—and as we bave seen in a previous ease, tbe
freight is also entitled to be contributed for. The amount of
freight to be made good according to the rule cited, would be
the whole charter "out and home," and in carrying it out, ob¬
jections would be met from the shippers of cargo, denying the
right of contribution from them for an amount greater than
the agreed freight upon their goods. Their argument would
be, why charge us for $100, when, had the vessel earned freight,
you would have received but $50. The lesser sum only was
at risk, and in our opinion they would be sustained.
The sum at risk, is to contribute or be contributed for, as
the case may be.
How is the contributory value of Cargo ascertained ?
When the average is adjusted at the port of discharge, the
practice is, to take the actual value of the cargo at the mar¬
ket price, stripped of all the charges attached to it, as freight,
duty and landing charges. And if a jettison has taken place,
then the estimate proceeds of the goods jettisoned, taken in
like manner, should be added to the net value of the cargo
saved. The goods must contribute, according to their value,
in the state in which they arrive at that place. The same
rule is to be followed under similar circumstances for disburse¬
ments, if the goods arrive in a sound state, or if they were
diminished in value by internal decay, or external damage,
previous to the period at which the disbursements were made.
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, after deducting their special char¬
ges, will be the sum for which they must contribute to gen¬
eral average.
The value of the cargo, in fact, is, what it has produced, or
adjustment oe general average and contribution. 151
would produce, at as nearly as possible the time of its arrival.
If it be actually sold, there can be no truer value given for
contribution, than the net proceeds of the sale—that is, the
gross amount stripped of freight, duty and landing charges.
A few Adjusters of Averages, are in the habit of deducting
from the gross proceeds of cargo when ascertaining its con¬
tributory value, "Commissions" (if consigned) in addition to
the landing charges before enumerated. It is wrong to do
so, for this expense is incurred after the landing and sale
of the goods; and a sale is not essential in this case — See
Stevens & Benecke (1833), page 208, note. There is an¬
other reason why they should not be deducted, which ought
to be conclusive, it rests upon equity, the foundation of all
general average rules. Take for example—two merchants have
each 100 bbls. flour, and which are liable to contribute to the
average—one lot is consigned, and the other is for account,
from the former the commissions is deducted, and from the
latter it is not—it is easy to perceive that 100 bbls. pays a
lesser share of the average than the other, which is certainly
unjust.
If the goods are not sold, an estimate must be formed of
their value, and they must be treated in the same manner as
if they had been really sold. This is called a pro forma ac¬
count-sale, of which the following is an illustration
»
Gross wholesale value in New York, and in the condition
landed, of the goods marked and numbered as follows, viz,:
Yalue, - - $
per cent., discount for cash, -
Cash Yalue, • * • $
152 MARINE INSURANCE AND ÀVERAGË.
Charges (to be deducted).
Freight, per Bill Lading, $
Import duty, $
Less, return for damage,
Net duty paid, -
Landing Charges, cartage, labor, storage &c., ac¬
tually paid to place the goods in the possession
of the Consignee or his Agent, in New York,
Net Proceeds, $
The following will serve as an illustration for ascertaining
the contributory value, case of jettison.
Gross wholesale value in New York, of goods originally ship¬
ped per -—-, not delivered, marked and numbered as follows, viz.:
Mark Sf No.
A Sf Bj 49. 1 Bale Cloth, - - $2,500.00
5 per cent, discount for Cash, 125.00
Cash Value, -
Charges (to be deducted.)
Freight, due per bill of lading, not paid, - $5.00
Duty, that would have been paid had goods
arrived, ------ 200.00
Landing Charges, cartage, labor, storage &c.,
that woidd have been paid to put the goods
in possession of consignee or his agent in
New York, had, they arrived, - - 55.00
Net Value, -
$2,375.00
260.00
$2,115.00
àdlustmentf ôv general ÀVëKA&É AnÎ) conteIfcUTIoN. 153
If the goods jettisoned, would have arrived in a damaged
condition, is the diminished value to be taken as the contributory
value?
If the goods lost were such, that if not sacrificed, they would
certainly have arrived in a damaged state and with diminished
value ; this diminished value should he taken as that for which
contribution is made. But this is true only where such di¬
minution in value is certain; where there is only a possibility,
or a mere probability of it, the value at the time of the loss
is to be taken. Rogers v. Mechanics' Ins. Co., 1 Story 603, 609.
If goods jettisoned, are afterwards recovered, what is to be
9
contributed for ?
If goods are jettisoned, and afterwards recovered, not their
whole value, but only so much thereof as is lost by the jetti¬
son and damage thence arising, added to the expense of recov¬
ering them, is to be contributed for. Parsons on Maritime Law,
322.
Goods jettisoned still belong to the owner, and a finder of
them acquires no title, except a lien on them for salvage
which may be decreed in admiralty. Or may be satisfied by
arbitrament or compromise.
How do jewels, bullion and bank bills contribute ?
Judge Parsons says—" The books raise a question which has
not occurred in practice, whether goods of great value, as jew¬
els, for example, are to be contributed for at their full value,
154
MARINE INSURANCE AND AVERAGE.
if jettisoned in ignorance of their value. We should say that
merely this ignorance can make no difference ; but if they were
cast over because of this ignorance, and could have been,
and would have been saved had their value been known, and
there was any thing in the usage of mecrhants, or in the
nature of the goods, which made it a duty on the part of
the shipper to declare what they were, and especially if the
concealment were in any way fraudulent on his part, their
full value should not be contributed for. In such case, that
which seems to have been the ancient rule might be aj3pli-
ed; which was, only the value which the master might well
suppose the goods to have, should be contributed for.
Jewels and bullion always contribute if saved, however small
their bulk, in proportion to their value. So we think should
bank-notes; unless it were plain that they could not have been
lost in fact, because sufficient precautions had been taken to iden¬
tify them, so as to recover their value if lost by wreck." See Par¬
sons on Maritime Law, vol. 1, p. 323, and authorities there cited.
Weskett, tit. Contribution, n. 15, citing 2 Valin's Com. 200,
classes bills with money, jewels, etc., as articles that ought to
contribute, but Mr. Phillips very justly remarks, that " these
are not so properly actual property, to the amount promised to
be paid, as the evidence of demands, which evidence may be
supplied by other, in case of their being lost, if sufficient j3re-
cautions are taken by the holder to prove what particular
notes they were, this circumstance sufficiently distinguishes
them from specie or other property, which is usually made to
contribute." 2 Phil, on Ins., § 1397.
It was held in the case of The Emblem, Davies 61, that bills
of exchange, saved from a wreck, were not liable to salvage.
And it would, therefore, follow that they would not be bound
to contribute in general average.
If the vessel is compelled to return to the port of departure,
ADJUSTMENT OP GENERAL AVERAGE AND CONTRIBUTION. 155
and the voyage is broken up; or, by consent of parties, the aver¬
age is immediately adjusted there, how is the cargo valued for
contribution ?
Mr. Abbott states (347), that if the ship, in consequence of
any misfortune to be sustained by general average, be compell¬
ed to return to its loading port, and the average be immediately
adjusted, in that case the goods only contribute according to
the invoice prices; for the price of sale is unknown.
In Lee v. Grinnell, 5 Duer 400, 430, where the cargo was
damaged while in port and sold, it was held that the amount
it brought at the sale was to be taken as the fair value.
In Barnard v. Adams, 10 Howard 270, 307, the Court said ?
"The place where average shall be stated is always dependent
more or less on accidental circumstances, affecting not the
technical termination of the voyage, but the actual and practi¬
cal closing of the adventure. We see nothing in the circum¬
stances to take this case out of the general rule, that contribu¬
tion should be assessed on the value at the home port."
As a general rule, the valuation of the cargo in the Invoice
(i. e., the invoice cost) is. conclusive between the owner of the
ship and the owner of the cargo, in the adjustment of .a general
average at the home port.
At what place ought the average to be adjusted ?
At the place of the ship's destination, or delivery of her
cargo. On this point all nations agree. Abbott on Shipping,
8th Ed., 503. An adjustment at an intermediate port, without
the consent of the parties interested, would not be binding
upon any one.
A general average is a matter in no way connected with a
policy of insurance. It is a settlement between the vessel,
156
MARINE INSURANCE ÀND AVERAGË.
freight and cargo, made with the purpose of determining what
proportion of a sacrifice, or expenditure, incurred for the com¬
mon benefit, or safety, shall he borne by each one of the three
classes of property always at risk, and liable to be assessed
when a loaded vessel arrives at her port of destination, after
such sacrifices have been made or expenses incurred. The
proper time and place, therefore,'for adjusting a general average
loss, is, on the arrival of the ship at her port of destination.
There the proprietors, or representatives of proprietors, of all
the property will be found ; there a uniform scale of value can
be adopted as the basis of contribution; and there the means
will exist for enforcing payment should any of the contribu¬
tors resist the claim for their quota.
À partial loss or particular average, on the contrary, is a
matter springing directly out of a contract of insurance ; the
parties to it, are merely the insurer and the assured, no one
abroad has any concern in the manner of its adjustment, and
it is utterly impossible for either party, to appeal to any other
laws or usages than those of the place where the policy is
made. The proper place, therefore, for adjusting a partial loss,
is where the policy was taken out—or strictly in accordance
with the rules of that place, and agreeably to terms of the
policy or instrument of indemnity or agreement.
This distinction between general average and partial loss,
is founded upon the necessity of paying the proper deference
to the laws and usages of the port or place where all questions
are necessarily to be determined by the legal tribunals, if the
parties concerned happen to differ, and appeal to the law.
Is the master compelled to part ivith possession of the goods
before the sum, contribuable in respect of them, is either paid
or secured to his satisfaction?
The persons who should contribute are, primarily, those to
ADJUSTMENT OF GENERAL AVERAGE AND CONTRIBUTION. 157
whom the property actually belongs ; but consignees, factors
and agents may also be asked to contribute for the goods under
their charge ; and in general they will have the means, out of
the goods in their possession, of making re-payment to them¬
selves for the sums contributed in respect of those goods. But
if the captain, or owner, or agent of the ship finds there is likely
to be any withholding or disputing payment of the general
average, he may refuse to deliver the goods, until he is satisfied
that the receivers will pay their proportion.
The master is agent for all concerned in this matter, and he
has a lien upon all the contributory goods for their contribu¬
tions, and may refuse, and it is, in fact, his duty to refuse to
deliver these goods to their consignees, unless the contributory
shares are paid for or secured by bond or otherwise. In a re¬
cent case, a shipper entitled to contribution, and losing it by
neglect of the master in this respect, held the owners responsi¬
ble. Gillett v. Ellis, 11 111. 579.
In Dupont de Nemours v. Vance, 19 Howard's Rep. 162, it
was decided, " That when cargo is lawfully jettisoned, its owner
has, by the maritime law, a lien on the vessel for its contribu¬
tory share of the general average compensation ; and, that the
owner of the cargo may enforce payment thereof by a proper
proceeding in rem against the vessel and against the residue
of the cargo, if it has not been delivered." This principle ap¬
plies, with equal force, to the case where the ship-owner advan¬
ces money at the port of distress to pay salvage upon the cargo ;
or where any shipper advances money ; or where his goods are
sold to pay salvage upon the ship or cargo ; the party making
such advance is entitled to a lien on the ship or cargo benefited
by it, for contribution in general average. An unconditional
delivery of the goods by the master to the consignee would be
considered as a waiver of the lien, and it would be lost. Rae
v. Cutler, 7 Howard's R. 729. It has been decided, however,
and is undoubtedly the law, that if a master parts with the
goods without such contributory payment, and afterwards pays
over to the losing party the contribution to which he was en-
158
MARINE INSURANCE AND AVERAGE.
titled, he has an implied assumpsit against the person to whom
he delivered the goods hound to the contribution. And the
owner of the goods is also liable, although the consignee signed a
general average bond. Eckford v. Wood, 5 Ala. 136. It is the
uniform custom, in order to facilitate matters and avoid delay,
especially in cases of perishable cargoes, for the master to de¬
liver the goods, and take a bond (called an average bond) from
the consignee, conditioned to pay his contribution when the
average shall be adjusted, in accordance with the established
usage and laws of the port of delivery, in similar cases.
In what instances is the average sometimes adjusted at the home
port or place of departure ?
If the occurrence which gives rise to a general average, hap¬
pen in an early part of the voyage, and occasion the return of
the ship to her port of sailing, or some other port accessible to
the owner and shippers of the cargo, it is often convenient that
the general average contribution should be made there, and not
delayed till the vessel's arrival at her destined port. And when
this is done by consent of all the parties in interest, it will be
binding, but not otherwise.
In this instance, a different value must be set on the contri¬
butory interests. It will be the cost of all of them at the
time of sailing, less any diminution of value by the accident
or sea damages.' And although this is not strictly the correct
method of valuation, there is little to object to it, since all the
interests are subjected to the same treatment. As to the freight,
an exception is made in its favor, and an estimate is made of
what it would produce net when the voyage shall have been
completed.
ADJUSTMENT OF GENERAL AVERAGE AND CONTRIBUTION. 159
Is Government property exempt from contribution ?
It is not, neither in England or in this country. See Brown
v. Stapyleton, 4 Bing. 119; United States v. Wilder, 3 Sumner
308.
Does an adjustment made on the protest and representations of
the master, preclude the owner from showing negligence or want
of skill, and therefore no contribution ?
In Chamberlain v. Beed, 13 Maine 357, it was held, that an
adjustment made on the protest and representations of the mas¬
ter, would not preclude the owner of goods shipped on board
from showing that the loss was occasioned through the culpa¬
ble negligence, or want of skill of the master, and was not,
therefore, a case for general average contribution.
If in the statement of a general average at the foreign port
of destination in the case of an American ship, a charge by the
ship-owner is excluded, which would have been included at the
home port, are the insurers of the ship at the home port liable for
the ship1 s proportion of the excluded item ?
It is often said in books, that an adjustment of general aver¬
age, made at a port where it ought to be made, and made ac¬
cording to the laws of that port, and in good faith, binds con¬
clusively all who are parties to it. But Mr. Parsons thus remarks :
"There is, however, one exception, or rather one apparent excep¬
tion to this rule, which rests, so far as authority is concerned,
on one case only. This exception occurs, when there is a gen-
160
MARINE INSURANCE AND AVERAGE.
eral average loss which is adjusted abroad, and in that adjust¬
ment certain contributory claims are denied to the party suf¬
fering the loss, which claims would be allowed to him at home.
W hen he returns and demands indemnity of the insurers, they
cannot say that his whole loss was adjusted abroad, and that
this adjustment of loss is conclusive against the assured; and
that he cannot demand indemnity from them for any items of
loss, denied him by that adjustment. Thus, if an American
ship puts into a foreign port for repair or refitting, by reason
of sea damage for which the insurers are responsible, and the
wages and provisions from the time of bearing away until
the repair is made, should go into average by the American
rule, but do not by the rule where the adjustment of the loss
is made, yet in applying the policy to the case, at home, these
wages and provisions will be considered as properly an aver¬
age loss, and the insurers will be held to pay the ship's propor¬
tion of them." Parsons on Maritime Law, vol. 2, p. 433 ; Thorn¬
ton v. United States Ins. Co., 3 Fairfield 150; Power v. Whit-
more, 4 M. & S. 141 ; Lennox v. United States Ins. Co., 3 John's
Cases 178; Shiff v. Louisiana Ins. Co., Martins Rep. 629; 3
Kent's Comm. 238; Bonsfield v. Barnes, 4 Camp. 228; Hughes
on Ins. 228 ; Phillips on Ins., 4th ed., page 156 ; Stevens &
Benecke on Average, page 279.
In Thornton v. United States Ins. Co., it was held, that in an
action on a policy of insurance, by the owner of a ship against
the underwriters, the adjustment of a general average loss is
not conclusive on the owner, but he may show that items of
loss were omitted in such adjustment, which, by the laws of this
country, where the contract is entered into, should have been
included. As between the parties, said the court, a foreign ad¬
justment is conclusive. The party contributing can recover
nothing back, the party to whom the contribution is made can
recover nothing further, and he who has been compelled actu¬
ally to contribute, on the basis of the foreign adjustment, can
recover of his insurer the amount thus contributed, and noth¬
ing more. To this extent, we admit the conclusive character
ADJUSTMENT OF GENERAL AVERAGE AND CONTRIBUTION. 161
of a foreign adjustment, but bave been unable to find adjudged
cases to cany us further. We have found no case, where the
party to whom contribution has been made has been restricted,
in his claim upon his underwriters, to the sum apportioned as
his share of the loss, by the foreign adjustment, when that sum
fell short of a complete indemnity, according to the law of the
place where the contract of assurance was entered into. If the
foreign adjustment includes, as general average, what consti¬
tutes only a partial loss or particular average, according to the
authorities, the adjustment is not binding upon the under¬
writers, either because the loss was not covered by the pol¬
icy, or not coming within the term general average, is not
therefore to be adjusted abroad, and we do not perceive any
good reason against applying a similar rule in favor of the in¬
sured, in cases where, by the foreign adjustment, losses are ex¬
cluded, which by the law of the place where the contract was
made, are considered as falling within general average. *
* * * * We cannot admit that the contract is to
be construed by foreign law or foreign usage, or that we are to
resort to either to ascertain what losses are covered by it, or
what is to be included in each description of loss."
The main argument in favor of the rule as laid down in the
foregoing decision, is, that the policy is an instrument which
binds by the law and custom of the place where it is made, and
that by those laws and customs it is to be construed, and by
them only. And also, that it is in accordance with the spirit
which animates the system of insurance, that the assured should
have under a policy, complete indemnity against all risks.
I am, however, inclined to the opinion, that a policy of in¬
surance is not a contract of indemnity in the absolute sense as
stated by some writers ; but a writing of indemnity in a limi¬
ted sense, that it is a contract of indemnity restricted by certain
conditions and provisoes, either expressed or implied, and the
following is one of them:—Where ship or goods are insured for
a voyage from this country to a foreign port, and sufficient evi¬
dence is given of an invariable usage at such port, to adjust as
11
162
MARINE INSURANCE AND AVERAGE.
general average, losses which are not so in this country ; or
to exclude from general average, items which would be admit¬
ted here, both the underwriters and the assured are respectively
bound thereby, on the ground that they are presumed to be
aware of the usage prevailing at the foreign port, to which the
contract of insurance relates.
The weight of authority both in this country and in Englanu
is, that the items included, and the sums apportioned and paid
according to the law of a foreign country, as a general average,
in an adjustment thereof, made there, are conclusive upon, and
payable by the underwriters here, as a general average, although
not apportioned in the same manner, and not deemed items of
general average by our law.
The engagement of the underwriters in a policy is usually
construed to be, that they will pay, whatever the assured is
compelled to pay as a general average arising from the risks
insured against. And it would hardly be considered equitable,
to hold the adjustment binding when it is in favor of the as¬
sured, and not binding when it is in favor of the underwriter.
I have, as Adjuster of Averages for one of the principal Ma¬
rine Insurance Companies of New York, had an opportunity of
examining hundreds of statements, in which the column of gen¬
eral average disallowed items which would be admitted by our
custom; and on the other hand, comprehended items which
would be disallowed here—and, except in one or two very ex¬
treme cases, I have found the Average Adjusters, by making no
re-adjustment of those items at the home port, practically hold,
that when a foreign adjustment is rightly settled according to
the laws and usages of the foreiglr port, it is binding not only
as between all the parties interested in the adventure, but also,
as between the assured and the underwriter.
CHAPTER XIII.
OP PARTIAL LOSS.
Partial loss implies a damage which the ship may have sus¬
tained, in the course of her voyage, from any of the perils men¬
tioned in the policy. When applied to the cargo, it means the
damage which goods may have received, without any fault of
the master, by storm, capture, stranding or shipwreck, although
the whole, or the greater part thereof, may arrive in port.
The species of risks most usually insured against in marine
policies are perils of the seas, fire, piracy and theft, barratry,
capture, arrests and detentions.
Perils of the seas, comprehend those of the winds, waves,
lightning, rocks, shoals, collision, and, in general, all causes of
loss and damage to the property insured, arising from the ele¬
ments, and inevitable accidents.
The damage that seas can do to a ship is by striking her up-
perworks, by which bulwarks and stanchions, boats, spars, har¬
ness and water casks ropes, and other stores and materials may
be carried away or broken ; the chain plate bolts may be bro¬
ken and the rigging consequently loosened ; the sea may carry
away or damage the rudder, the capstan and windlass ; it may
break or spring masts and yards, and burst sails ; it may cause
the vessel to roll so as to carry away her topmasts and spars ;
164 MARINF INSURANCE AND AVERAGE,
it may burst batches, break skylights, and get below into the
cabin, destroying thereby perishable stores, charts, books, in¬
struments and furniture; it may throw the vessel on to her
beam-ends, and threaten her with destruction ; it may strain
the upper-works and the decks so that water enters the ship's
hold and requires her to be freed from it by the use of the
pumps ; and it may shake the vessel throughout so violently as
to wrinkle the metal sheathing and strain her, causing a de¬
rangement of the caulking, the springing of butts and the
opening of seams, so as to make the vessel leak below ; and it
may by falling on the decks break some of the beams and other
substantial parts of the fabric.
In the adjustment of the majority of the above losses and
injuries, there is scarcely ever any difficulty. When the vessel
arrives at the port of destination, or reaches a port of dis¬
tress, a survey is held on her to ascertain and specify the
damages she can be observed to have sustained, and the
vessel is properly repaired and refitted. These repairs, after
the deduction of a third new for old, form a claim under the
policy against the underwriters.
It is to be borne in mind, however, that the underwriters
can only be held liable to pay for what has really been ren¬
dered needful by accident. It often happens with ships which
are not new, that in repairing the fresh damages, a number
of old sores and imperfections come to light, and are, very
properly, remedied as the work proceeds. But these repairs
appertain to the owner and not to the underwriter, and must
be selected and put aside by the Adjuster. The Average Ad¬
juster must exercise his judgment in comparing the account
he receives from the protest and the verbal explanations of
the captain with the surveyor's reports, and the bills of the
shipwright, and the various mechanics employed in repairing
and replacing damages. The Adjuster must not allow the un¬
derwriters to be charged with an extravagant or unnecessary
expenditure in repairs, or permit an addition to be made to the
ship's fabric, or any substitution of superior materials for what
3PÀRTÎAL LOSS. 165
were taken away, unless in some places where the former are
the only materials procurable.
The underwriter is responsible for the repairs or restoration
of the damaged or destroyed part of the ship or articles belong¬
ing to it, with materials, workmanship, style and finish corre¬
sponding to its original character.
Underwriters are liable for all damages caused by a peril in¬
sured against, which happens to a sea-worthy ship, even though
this damage be greater than would have resulted, had the ves¬
sel been stronger. But they are not liable for the ordinary
Wear and Tear. And, if cables, sails, rigging, anchors, boats
or the like, give out and are lost, under ordinary circumstances,
without peculiar strain or any known extraordinary risk, the loss
will be attributed to wear and tear, and not to a loss by a peril
of the sea. In some instances, the nature of the loss deter¬
mines the question of the underwriters' liability. If a rope
gives way, generally it would be because it was not strong
enough. If timbers are broken, the injury would generally im¬
ply extraordinary violence. If the damage or loss fall on the
spars, the sheathing, or upper-works, or boats, there must always
be an inquiry into the circumstances of the case, into the de¬
gree of violence which caused the loss, and the manner in which
the lost article was secured against injury. Thus, if a boat is
lashed on deck, only extreme violence would tear it away. If
hung from the davits, at the stern or side, it is easily lost by no
uncommon peril, and it may be a question whether it was so
secured at that very time, as to be sea-worthy, that is, able to
encounter the perils it must be expected to meet. So the in¬
definite deterioration of the ship by straining, the opening of
seams, or butt-ends, without a storm or violence, and the like,
are not covered by the policy.
The destruction of a ship by worms is not a " peril of the
sea," because it is not an extraordinary circumstance. In cer¬
tain waters, and at certain seasons, it is a natural result of
causes always in operation, which are to be expected, and may
be perfectly prevented by adequate precautions ; and it may be
166
MARINE INSURANCE AND AVERAGE.
likened to a loss by wear and tear. And so, if loss or damage
be caused by rats or other vermin, it would seem that the under¬
writer would not be liable unless the owner or the master had
done all that could be done by any reasonable exertions or
means to extirpate them, and without success. Chancellor
Kent, 8 Comm., p. 800, says : " The better opinion would seem
to be, that an insurer is not liable for this sort of damage, be
cause it arises from the négligea ce of the common carrier, and
it may be prevented by due care, and is within the control of
human prudence and sagacity." But in Garrigues v. Coxe, 1
Binn. 592, a leak occasioned by rats, without the neglect of the
captain, was held to be a peril within the policy.
Damage caused by a vessel's grounding or stranding is a loss
by peril of the seas within the policy, provided it does not hap¬
pen in the usual course of navigation, as where a vessel is des¬
tined to a tide harbor, where she expects to take the ground
when the tide ebbs. And in such a case, if there be a heavy
swell, which causes the injury, the underwriters are liable.
It is sometimes necessary to heave a ship down, and if she is
injured while this is being done, there seems to be no good rea¬
son why it should not be considered as having happened by a
peril of the sea, but it has been decided otherwise. Thompson v.
Whitmore, 8 Taunt. 227. The underwriters, however, hold them¬
selves liable for this damage, as covered by the general clause.
The liability of the underwriters extends to any extraordina¬
ry expenses necessarily incurred in consequence of a peril in¬
sured against, as in raising funds for repairs ; but not to the
expense of wages and provisions of,tbe crew while employed
on the repairs ; nor while the vessel is detained, as by an em¬
bargo. Parsons' Maritime Law, vol. 2, p. 485 ; Orrok v. Com¬
monwealth Ins Co., 21 Pick. 456, 469.
What is the ride for deducting one third, new for old ?
PARTIAL LOSS. 167
Whether the value of the old materials should he deducted
from the cost of repair, before the one third is deducted, is not
settled by authority ; but the rule in New York and Massachu¬
setts, is, that the value of the old materials is first to be deduc¬
ted from the gross amount of expenses, and then one third new
for old is to be deducted from the balance, thus:—
Partial loss, repairs, $5,000
Less, sales old materials, - 500
$4,500
Off one third new for old, - 1,500
$3,000
This rule of deduction is expressly provided for by a sjpecial
clause in the New York policies, by which it is agreed that, "in
case of claim for loss or damage, a deduction of one third from
the cost of repairing or replacing the same shall be made, after
deducting the value of the old materials, except in the case of
anchors, and of sheathing copper or other metal"*
What deduction is made on Copper sheathing ?
The following deduction is provided for by a special clause
in the New York policies:—
UA deduction of one-fortieth from the expense of repairing or
replacing the metal sheathing, or any part thereof {after first de¬
ducting the value of the old metal and nails), shall be made for
every month since the vessel was last sheathed, until the expiration
*Under Philadelphia policies the one third is first deducted, and from the remainder is taken
the value of old materials.
168
MARINE INSURANCE AND AVERAGE.
of forty months, after which time the cost of re-metaling or re¬
pairing the same, shall be wholly borne by the assured?
And the following is the condition of the Boston offices
"It is especially agreed\ that instead of deducting one third for
new on the article of copper sheathing in partial loss, there shall
be deducted two and a half per cent. of the cost of re-coppering,
after deducting the value of the old copper and nails, for each
and every month the copper shall have been on the vessel at the
time of re-coppering ; and if the copper shall have been on forty
months, the cost of re-coppering shall be wholly borne by the as¬
sured."
The underwriters of New York, at a meeting of the Board in
1858, passed the following resolution, as to the proper con¬
struction to he placed on their clause :—" It is intended to em¬
brace the expense of sheathing metal, nails, sheathing paper or
felt, labor, an equitable proportion of dock hire or heaving
down, and every expense incidental to the sheathing of the
vessel; including the expense of caulking under the sheath-
* 5?
mg.
The rule, as practiced by Adjusters in New York, however,
©
is not quite uniform, some adhering more closely than others
to the underwriters' construction. I am, perhaps, safe in stat-
«
ing that the general practice, both in New York and Boston^
is to consider the following items as pertaining to the copper¬
ing, viz.: The metal—The nails—The paper or felt—The tar
and mops used in coppering—The labor putting on—to which
there is sometimes added a portion of the dockage, or dock hire,
but this depends upon the facts in each case; for instance, if
it appears that it was necessary to take the vessel out of water
to make repairs in and about her bottom, which necessarily oc¬
cupied many days, and that the time used in putting on the
copper was comprehended therein, so that in fact, no time was
so occupied exclusively, then the dock hire is not deemed part of
the expense of coppering, but, if it appears that little or nothing
was done to the bottom, except stripping off the metal, caulk¬
ing, and putting on the new, then the practice is to charge
PARTIAL LOSS* 169
/
some part of the time to the coppering ; that is to say, the ex¬
tra lay days on the dock, hut, not the expense of hauling in, or
up, nor the time so used, or used in getting the vessel out, or
off the dock, these being (by the custom in Boston, and consid¬
ered also by some adjusters in New York), incidents pertaining
to the caulking, rather than to the coppering. Punching the
copper, picking up the the old, truckage &c., &c., are consider¬
ed as pertaining to the coppering.
It will be observed, that the copper clause in the New York
policies, has no essential meaning different from the Boston,
except in the words "or any part thereof" which make the pro¬
vision in the former applicable to cases of mere patching of
the metal ; in Boston, this is not considered as coppering in the
sense intended.
In England, by the "Custom of Lloyds," underwriters do
not pay for stripping and re-sheathing of the bottom, unless the
vessel have touched the ground or been in contact with some
body below the water's edge. Mr. Hopkins, an Average Ad¬
juster of distinction in London, in a very valuable work on
Average, published in 1859, writing on this subject, says :—
"Metal sheathing is a material exposed to progressive loss by
mere contact with water, and with more rapid waste when the
ship is passing quickly through the sea, because by oxydation
the surface of the metal is constantly corroded, and is rubbed
off by the friction of the water through which the vessel is
propelled. Sir Humphrey Davy and others, have turned their
attention to this subject, and have endeavored to devise means
to reduce or4 prevent the wasting of metal sheathing. , The
great chemist just named, tried the protection of iron bolts
of particular forms and size below the metal, and a gal¬
vanic action was set up, which exerted itself lh rings round
the protectors, and really had the effect supposed and intended ;
but another result was occasioned, and which proved more dis¬
advantageous, even, than the gradual loss of the copper :■—the
surface of the metal being more nearly permanent, all the pro¬
tected circles became covered with weed, barnacles, and other
170
MARINE INSURANCE AND AVERAGE.
growths of vegetable and animal life, and the object of the
experiments was defeated by its too great success ; for the saving
of metal took the place of a clean bottom. The course of the ship
was impeded by the substances which adhered to it ; and after
several trials of modified means, the experiments were given
up. The waste of copper goes on in a ratio not quite uniform,
but which may be roughly estimated at twenty-five per cent, in
each year on the quantity of metal remaining. Thus at the
end of the fourth year, it is generally necessary to re-metal
the bottom although the vessel has not met with any acci¬
dent; the quantity remaining on her will have been reduced
to about a quarter or a third of the original weight, and that
probably wrinkled and broken by the working of the ship when
carrying a cargo at sea. The Yellow Metal, an alloy of copper
patented by Mr. Muntz, is less soluble, but it is more brittle.
It lasts longer, weight for weight, than copper, but in case of
accident, it is more destructible."
The rule is general in the United States, that a weight of
metal equal to the quantity stripped off, is allowed in full. A
deficiency in weight is charged to the underwriters in the par¬
tial loss column ; an excess of weight, is charged to the owners
in the owners column. Where copper is stripped off, and re¬
placed with yellow metal, the owners are entitled to claim
from the underwriters, an additional amount equal to the dif¬
ference between the cost of copper and yellow metal.
As the deduction of one third new for old, is made only from
the repair s j what are the expenses which may be said to belong to
repairs, from which the deduction is made ?
\
It is the custom of New York, and most of the commercial
states of the United States, to deduct a third not merely from
the expense of materials and labor, but also from such other
PARTIAL LOSS.
171
incidental expenses as seem distinctly connected with the re¬
pair, such as dockage, and the moving of the vessel from the
wharf where she is moored ; or the place where she is anchored,
to the place of repair.
The cost of documents, the protest, surveys &c., are charged to
partial loss net, i. e. without the deduction; as are also the
charges incurred before repairs, and evidence necessary to es¬
tablish the claim against the underwriters.
In Potter v. Ocean Ins. Co., 3 Sumner 27, 45, it was held,
that one third was not to be deducted from the amount of the
expense of towing the vessel across a river to a ship-yard, for
the purpose of repairing her, and that of assistance in getting
her across and boat hire, and that of towing her back. Story,
J., said: "In regard to the deduction of one third, new for old,
the true interpretation of that rule has always appeared to me
to be, that it is strictly applicable only to labor and materials
employed in the repairs, and to the new articles purchased in
lieu of those which were lost or injured by the disaster. It
would be strange to apply it to other independent expenses,
which were merely incidental to the loss; for in no just sense
can it be said, that the owner is benefited thereby, or that he
receives an enhanced value therefrom, beyond his indemnity.'1
There is one kind of repairs which is allowed without the
deduction of a third ; viz., those temporary reparations done in
ports where the vessel cannot be restored perfectly and perma¬
nently, or unless at great expense, but which may suffice to
allow her to complete her voyage. These repairs, having to be
taken away afterwards, are clearly not to be held in any way to
be meliorations or improvements, and must be charged to the
underwriters in full.
Is damage by Fire a peril of the sea, for which underwriters
are liable!
172
marînë insurance and avrraoë.
Fire is not a peril of the sea as "between the shipper of goods
and the ship-owner, and therefore most bills of lading contain
an express exception against fire. The same rule would apply
to a case of insurance ; but as fire is always specifically insured
against, the underwriters are liable.
When fire breaks out in a ship it generally ends in her de¬
struction; the great bulk of a vessel being composed of com¬
bustible, and certain parts of very inflammable, materials.
When only partial in its damage, the injury from burning is
Partial Loss, and subject to the same rules as the preceding.
The danger from fire has become of late years so great as to
render necessary the utmost precaution against this destructive
element, not only in the stowage of cargoes, but by keeping
a full and competent watch on board vessels lying at anchor or
at the wharf If possible, the sails should be unbent in all
cases, when the vessel might receive damage while lying at her
dock from fire occurring in adjacent buildings.
What is the liability of the underwriters for loss by pirates, rob¬
bers or thieves ?
The usual insurance against these risks, renders the under¬
writers liable for losses or damage arising from all such acts as
amount to piracy or robbery; even, it is said, if they are com¬
mitted by the crew, provided due care and diligence have been
used to prevent them ; as if there be a mutiny of the crew. 3
Kent's Comm. 303 ; Parsons' Maritime Law, vol. 2, p. 236 ; 1
Phillips' Ins., § 1106; Arnould on Ins., vol. 2, § 817.
Mr. Parsons says : " To bring a loss within the words of this
clause, there must be violence,- for without this there can be
neither piracy or robbery. But there may be theft without
violence; and whether a loss by such theft would come within
this clause, is not certain from the decisions. But the weight
PARTIAL LOSS
173
of American authority, upon the whole, would lead to the con¬
clusion that insurance against £ theft,' or against éthieves/
would make the insurers liable for a loss by larceny. To avoid
this conclusion, the phrase ' assailing thieves/ is sometimes
used; and this no doubt covers only theft, ab extra, with vio¬
lence. And even if robbery or theft is not insured against,
but loss occurs by them in consequence of an exposure to theft
by shipwreck, or as the direct and immediate effect of any peril
insured against, the insurers would be held liable for this."
Parsons' Maritime Law, vol. 2, p. 236.
»
What is the liability of the underwriters for loss by Barratry ?
u Barratry of master and mariners/' is one of the perils in¬
sured against in our common printed forms of policy; and may
be defined to be, an unlawful, fraudulent or dishonest act of
the master, mariners, or other carriers, or of gross misconduct,
or very gross and culpable negligence, contrary,- in either case,
to their duty to the owner, and that might be prejudicial to
him or to others interested in the voyage or adventure.
If an unlawful act be done without intention, or through
inadvertence or ignorance, it is not barratry. The act must be
wrongful in itself, and wrongfully intended; for if it be done
in compliance with the owner's instructions or request, or with
his assent, it is not barratry, even as against others who are in¬
jured by it.
If a master undergoes any extraordinary and evitable peril,
from no necessity whatever, but in the belief that it might be
advantageous to his owner, a loss arising from this risk would
be a loss by barratry. So if the act were done by the master
for his private and personal benefit.
If the master is the sole owner of the ship, he cannot com¬
mit barratry against other parties in interest as shippers of
174
MARINE INSURANCE AND AVERAGE.
goods, or as charterers. But it seems, that a captain who is a
part-owner, may commit barratry against his other part-owners,
and also against a charterer. Parsons' Maritime Law, vol. 2,
p. 248, and cases there cited.
Trading with the public enemy is a barratrous act, even
though done with the purpose of benefiting the owners. So is
collusion by the captain with an enemy privateer, to have his
ship captured—and fraudulently sailing for the port of the en¬
emy—and resistance to search when rightfully demanded by a
belligerent—and the rescue of a neutral vessel detained and
sent in for examination by a belligerent, being, in effect, a re¬
sisting of the right of search—and wilful violation of blockade
—or of an embargo—and in case of the captain's going off the
course and fraudulently selling the vessel—theft, embezzle¬
ment and wilful destruction of the property insured, are in
their nature barratrous acts. A gross and palpable violation
of trust by the captain, and a reckless disregard to his duty, is
barratry, though without any view to his own particular advan¬
tage to the prejudice of his principals ; as in case of the cap¬
tain's sailing with an unfavorable wind, contrary to the direc¬
tions of the pilot, having before refused to sail, when the wind
was fair; and his disregarding the pilot's instructions in other
respects, though informed of the consequences; and his con¬
duct in cutting the cable so that the ship drifted on the rocks.
ITayman v. Parish, 2 Camp. 149.
As the master is, for many purposes, the agent of the owner,
and is appointed by him, many policies provide that they do
not insure against barratry, if the assured be owner of the
ship. Such a provision, of course, generally limits the insur¬
ance against barratry to a loss or damage to the cargo, and to
such cargo only as is shipped by a party who is not an owner
of the ship. Paradise v. Sun Mut. Ins. Co., 6 La. Ann. 596;
Brown v. Union Ins. Co., 5 Day 1. The intention is, not to in¬
sure an owner against the miseonduct of a person selected and
appointed by himself.
The owner and his master, are always required to guard, with
PARTIAL LOSS.
175
all diligence, against the misconduct of the crew; and for their
misdeeds, if such diligence he wanting, the insurers are not liable ;
but where all proper care and diligence are used, the insurers are
then responsible for losses caused by the barratrous acts of any
of the officers or crew. Elton v. Brogden, 2 Stra. 1264. And
insurance against the barratry of the master and crew, includes
larcenies and embezzlements of the goods insured, by either the
master or any of the crew, excepting only petty thefts and the
like. Parsons' Maritime Law, vol. 2, p. 245 ; Am. Ins. Co. v.
Bryan, 26 Wend. 568; Stone v. National Ins. Co., 19 Pick 34.
What is the liability of the underwriters under the General
clause respecting other perils ?
The general clause against all other risks and perils covers
other perils of a like kind to those specified.
After the enumeration of the particular risks, the policy
usually contains a general clause, by which the subject is in¬
sured against "all other perils, losses and misfortunes lohich shall
come to the hurt, detriment, or damage of the said goods, or ship
8çc., or any part thereof "
This final undertaking of liability by the underwriters, may
seem so wide as to include every possible loss, damage and con¬
tingency which can happen to the ship. And it may seem to
exclude any defence which underwriters might make to an ac¬
tion for loss or damage brought against them. The definition
of the underwriters' liability is, certainly, very comprehensive;
but we must look to the usual and consistent interpretation
which has been made of the terms by courts of law and by wri¬
ters on the subject of insurance ; and also, which is of great
importance, to that general impression which prevails in the
minds of underwriters themselves when they sign a policy ; be¬
cause intention, though not on every occasion openly expressed,
176
MARINE INSURANCE AND AVERAGE
is to be looked to in construing contracts which are for the
most part couched in the unvarying terms of a printed form.
It may, then, be unhesitatingly asserted that underwriters by
their policy have no intention of granting such a plenary in¬
demnity as it would amount to if they undertook to restore
every ship at the end of the voyage insured to the same condi¬
tion in every respect in which she was when she sailed. For
then they would virtually have to repair the ordinary ravages
of time. They would have to cure the inherent defects which
might have existed in the ship, and which from some cause ex¬
hibited themselves during the currency of the policy. The un¬
derwriters do not mean to undertake this. The foundation of
claims on them is accident. The damage which the vessel sus¬
tains must be something extra to the ordinary events, to the
ordinary waste and decay which all shipping is subject to. The
underwriters, it must be borne in mind, are responsible for the
extraordinary, and not the ordinary events of a voyage.
The general clause, enlarges the scope and operations of the
policy very little, because by a common principle of construc¬
tion (that general words are restrained by the particular recital)
it is always construed to mean other perils of like nature or
character with those enumerated, which would therefore be in¬
cluded, generally at least, in the other clauses.
But these words have been declared by courts to be material
and operative, and underwriters have been held liable under
them, but, as it seems, in most of these cases they might have
been held liable as well under other clauses. In Cu-llen v.
Butler, 5 M. & S. 461, the vessel was lost by being fired into
through mistake. Held, that the loss was covered by the gen¬
eral clause. The following have been held to be covered by
the general clause. Damage done to a vessel in a graving dock
for repairs, by being blown over by the wind—Phillips v.
Barber, 5 B, & Aid. 161 ; or by the explosion of the boiler—
Perrin v. Protection Ins. Co. 11 Ohio 147 ; or while the vessel
is being hauled up on a marine railway, and is partly in the
water and partly on the land—Ellery v. New England Ins. Co.,
PARTIAL LOSS.
177
8 Pick. 14 ; injury sustained by the accidental breaking and giv¬
ing way of the tackle and supports whereby the vessel was sup¬
ported in being moved from a dock where she had been hauled up
for repairs—Deveaux v. J'An'son, 5 Bing., N. C., 519. So, it would
seem is loss by barratry committed by one part-owner against
another, or against any other party in interest. Per Martin, B.,
J ones v. Nicholson, 10 Exch. 28,26 Eng. L. & Eq. 542. In Moses
v. Sun Mut. Ins. Co., 1 Duer 159, it was held that a loss occasion¬
ed by the sale of a part of a cargo of provisions to pay for ne¬
cessary supplies at an intermediate port; and the necessary
consumption of the rest by the passengers and crew, owing to
the want of a proper supply on board the ship, was not covered
by this clause. Mr. Justice Duer said: "The words of the gen¬
eral clause, broad as they are, in this as in many analagous
cases, are limited in their application by the specification that
immediately precedes them, and therefore have their due effect
assigned to them, by allowing them to comprehend and cover
only such other cases of marine damage as are of the like
kind (<ejusdem generis) with those specifically enumerated, and
are occasioned by similar causes."
Can those repairs which are of a general average nature, be
united to those which are of a partial loss nature, and the two
combined be claim ed as partial loss under the policy ?
They can. But with a right to the underwriters to have the
benefit of the general average contribution for such repairs as
are to be made good in the general average, which contribu¬
tion the assured must transfer to them or account to them
when received.
12
178
MARINE INSURANCE AND AVERAGE
PARTICULAR AVERAGE OR PARTIAL LOBS OF GOODS.
À distinction is sometimes taken in books, between a partic¬
ular average and partial loss ; thus, the term " particular aver¬
age" is used to signify the mode of adjusting a loss on goods
arising from the article being deteriorated in value, in conse¬
quence of its being seardamaged ; and the term " partial loss,"
to signify a loss to, or of a part of, the thing insured. But in
practice, particular average is usually taken to mean the same
as partial loss ; and this use of the expression is defended in
Maude & Pollock on Shipping, p. 189; and by Abbott on Ship¬
ping, p. 473. To relieve the lay reader from perplexity, I pre¬
fer, therefore, to use the phrase "Partial loss" altogether,
whether in considering loss by sale of goods damaged by sea-
perils at some intermediate port, or, when considering loss aris¬
ing from the depreciation of goods owing to sea-perils, and as¬
certained at the place of destination.
We have elsewhere (page 46) stated how a particular average
or partial loss on cargo is usually adjusted under an open poli¬
cy; we propose, therefore, in this place, merely to state a few
of the charges which do or do not give a claim as for a par¬
tial loss against the underwriters on goods.
The underwriter on goods is not responsible, under the com¬
mon form of policy, for the loss the merchant may incur by
having to pay the same freight on sea-damaged goods arriving
in bulk at their port of destination, as he would have had to
pay had they arrived sound. Gaze v. Baltimore Ins. Co., 7
Cranch. 358; Columbian Ins. Co. v. Catlett, 12 Wheaton 383;
Armroyd v. Union Ins. Co., 3 Binney 437.
We have, under suggestions to the master, considered his
duty in case of wreck to tranship and forward the goods if he
can ; but the question arises, whether, if the goods are sent for¬
ward at an increased freight, the underwriter on goods or the
underwriter ou freight is responsible. As a general rule, it may
be said, that underwriters on goods have nothing to do with
freight. But to this rule, there must be an exception. Mr.
PARTIAL LOSS.
179
Parsons states it thus. "If the goods are sent on for the bene¬
fit of the insurer on them, he should be liable for the increased
freight, but not if this increased freight might be avoided by a
delay which would not be injurious to the goods, and they
are sent forward for the benefit of the owner." Parsons' Mari¬
time Law, vol. 2, p. 439.
When the goods are in a damaged condition at an interme¬
diate port, it is the master's duty to forward them if he can,
and if the goods require drying or washing, as hides sometimes
do, to enable them to be brought on, and this can be done at a
reasonable expense, it would clearly seem to be the duty of the
master to cause this to be done. And, if he fails in his duty in
this respect, the underwriters are not liable.
When goods are necessarily sold by the master in a port of
distress to defray the expenses of repairing the ship, the loss sus¬
tained from the sale by the shipper of the goods may be recov¬
ered by him against the owner of the ship, but cannot be claimed
as an average loss from the underwriter on goods. Giles v.
Eagle Ins. Co., 2 Metcalf 140.
Where the vessel is wrecked and the cargo is sent forward in
another vessel to the port of destination, the underwriters are
liable for a loss while the goods are in such substituted ship.
Winter v. Delaware Mut. Ins. Co., 80 Perm. State 834. So if it
is necessary on account of the loss of the ship to carry the car¬
go over land to tranship it, the underwriters are liable while
this is being done. Bryant v. Commonwealth Ins. Co., 13 Pick.
543, 555.
Underwriters are liable for no subject matter of insurance,
which is destroyed by reason of its own inherent defects, or
tendencies. But this rule does not apply to tendencies which
are called into activity only by a peril insured against. Thus,
if hemp insured, burns up or rots from spontaneous ignition or
fermentation, it being known that this may happen if the hemp
be damp, but not if it be dry, the question would be, whether
it was damp or dry when it was put on board. If it were then
damp, or if it were then dry but became damp through the
180
MARINE INSURANCE AND AVERAGE
fault or defect of the ship, the underwriters would not he lia¬
ble, either for the hemp, or for the ship, if the burning hemp
destroyed the ship. But if the hemp were dry when laden,
and was afterwards wet by reason of the straining of the ship
in a storm, or by the shipping of a sea, or any like peril, then
the underwriters, whether on the ship or cargo, wo aid be liable.
Parsons' Maritime Law, vol. 2, p. 216; Boyd'v. Dubois, 3 Camp.
133.
Can damage to cargo by jettison, as well as the damage occa¬
sioned by the vessePs leaking, be united and treated as partial loss,
so as to bring the claim up to the stipulated per centage ?
And can the assured claim from the underwriters, the insured
value of the cargo jettisoned, or must he accept of the market value
at the port of destination, which he may have received under a gen¬
eral average settlement ?
A loss by jettison is among risks expressly assumed by un¬
derwriters
The Supreme Court of the State of New York, as early as
the year 1803, in the case of Magrath v. Church, 1 Caines' R.
215, decided that the assured was entitled to recover the value
of cargo jettisoned, directly from his underwriter, as a loss
arising from a peril specified in the contract, and expressly as¬
sumed by him.
In Faulkner v. The Augusta Ins. Co., 2d McMullen R. 158,
it was held, that a party insuring goods is not obliged to de¬
mand payment of the contributors, before bringing suit against
the insurers for a loss by jettison.
In Potter v. The Providence and Washington Ins. Co., 4. Ma¬
son 298, Judge Story held, that the amount due to the assured
by his underwriter, is the value of the goods insured and jet¬
tisoned, at the rate fixed in the policy, less the amount to be
Martial lôss.
181
contributed by the assured on the balance of the cargo not in¬
sured and belonging to him.
In Forbes v. The Manufacturers' Ins. Co., 1 Gray's R. 871, the
Supreme Court of Massachusetts held, that the owners of teas
laden on board of the ship "Paul Jones," a portion of which
had been jettisoned on the voyage from China, and which was
valued in the policy, at twenty per cent, advance on the invoice
price, might recover of the underwriters, without first demand¬
ing contribution from the other interests benefited by the jet¬
tison. It further decided, that the underwriters were liable for
the amount at which the teas were valued in the policy, al¬
though it exceeded their market value at the place of desti¬
nation. In other words, that court held, that a loss by jettison
having been directly insured against, was recoverable under the
policy, and at the value therein specified.
The rule is different, if the owner of the goods jettisoned,
be also the owner of the vessel, and of the other portions of
the cargo not covered by the policy, or, if he be the owner
either of the vessel or of any interest liable to contribute on
behalf of his interests not covered by the policy. Pezant v.
The National Ins. Co., 15 Wend. 458; Potter v. The Prov. and
Wash. Ins. Co., 4 Mason 298.
It is, therefore, perfectly clear from the foregoing adjudged
cases, that the damage to cargo by jettison, as well as that
occasioned by the leaking of the vessel, can be treated as a
partial loss, and recoverable under the policy, though the loss
by damage exclusive of the jettison, do not amount to the
stipulated per centage.
It is also clear, that in estimating the damage by jettison, the
rate fixed in the policy, is to be considered as the value of the
cargo so lost, and the claim made on the underwriters should
be stated on that basis.
OP THE MEMORANDUM.
The policies in general use in this country, except from all
loss that is not total, certain articles, and from all loss by dam-
182
marine insurance and average.
age that is less than certain proportions, other enumerated ar¬
ticles of cargo (all of these articles being especially liable to
damage).
In all the policies in use in New York, it is in the follow¬
ing form:
"It is also agreed, that bar, bundle, rod, hoop and sheet iron,
wire of all kinds, tin plates, steel, madder, sumac, wicker-ware
and willoiv [manufactured or otherwise), saZZ, grain of all kinds,
tobacco, Indian meal, fruits [whether preserved or otherwise),
cheese, dry fish, vegetables and roots, rag's, hempen yarn, ôag-s,
cotton bagging, and other articles used for bags or bagging,
pleasure carriages, household furniture, s/rms and hides, mwsi-
cal instruments, looking-glasses, and all other articles that are
perishable in their oivn nature, are warranted by the assured
free from average, unless general; hemp, tobacco stems, matting
and cassia, except in boxes, free from average under twenty per
cent., unless general ; and sugar, jinx, flax-seed and bread, are
warranted by the assured, free from average under seven per
cent., unless general ; and coffee, m ôag's or bulk, pepper, in bags
or bulk, and rice, free from average under ten per cent., unless
general."
" Warranted by the assured free from damage or injury, from
dampness, change of flavor, or being spotted, discolored, musty or
mouldy, except caused by actual contact of sea water ivith the ar¬
ticles damaged, occasioned by sea-perils. In case of partial loss
by sea-damage to dry goods, cutlery or other hardware, foss
sAaZZ fro ascertained by a separation and sale of the portion only of
the contents of the packages so damaged, and not otherwise; and
the same practice shall obtain as to all other merchandise, as far
as practicable. Not liable for leakage on molasses, or other li¬
quids, unless occasioned by stranding or r o/ZZ .10a with another
vesselI
The reason of these exceptions is the great liability of such
articles to damage from slight causes, insomuch that it is not
easy to discriminate damage by ordinary causes from that
resulting from the extraordinary perils insured against, which
PARTIAL LOSS.
188
latter cause of loss, as lias been previously seen, is the only one
against which the assured is entitled to indemnity. Accord¬
ingly, these specific exceptions are introduced as one test of
r
the operation of the peril being extraordinary.
All other goods pay average when it amounts to five per cent.
and upwards ; but special agreements can be made in reference
to all goods, altering the customary per centage in the war¬
ranty or entirely shutting them out from the payment of av¬
erage. In the latter case, the underwriters, of course, charge a
less premium.
Where the memorandum clause warranting the cargo free
from average unless general, applies, the underwriters only are
liable (in case of injury to the cargo itself as the cause of loss)
in the event of a total physical loss of the cargo; the whole
must be so damaged that it cannot reach its port of destination
specifically as merchandise. The insurer is not liable if any
part of the cargo remains undamaged. General average charges,
however, the underwriter would have to pay by virtue of the
special effect of the warranty of the memorandum clause.
It has been decided that hides and skins do not include
furs ; but skins comprehend deer-skins. Bakewell v. United
Ins. Co., 2 John's Cas. 246.
The specification of one description of an enumerated arti¬
cle, as dried fish, excludes all other descriptions of the same, as
pickled fish; so also, where the word roots was among the
enumerated articles, it was held not to include sarsaparilla, be¬
cause not liable to decay by sea damage. Blackwell v. United
Ins. Co., 2 John's Cases 246; Coit v. Colonial Ins. Co., 7 John
885.
Under the exception of " other goods that are perishable in
their own nature," potatoes are deemed perishable articles, and
fall within the exception. Robinson v. Commonwealth Ins.
Co., 8 Sumner 220 ; Williams v. Cole, 16 Maine 207.
In Baker v. Ludlow, 2 John's Cas. 289, the court said: "The
subsequent words, ' all other articles perishable,' &c., are not
applicable to the articles previously enumerated, nor can they
184
MARINE INSURANCE AND AVÊRAOÉ.
repel the implication arising from the enumeration of them.
There can be no constructive total loss of memorandum ar¬
ticles., the underwriters being liable only in the event of a to¬
tal physical destruction of the object insured, or a total de¬
struction of value.
The rule of law is now well settled that, under an insurance
upon an article free from average, if by reason of the perils
insured against, it is placed in such a condition that, in conse¬
quence of inevitable deterioration or decay, it cannot be carried
to the port of destination, but will necessarily, before the com¬
pletion of the voyage, be wholly destroyed, and it is accord¬
ingly sold at an intermediate port, this will constitute a total
loss within the true intent and meaning of the memorandum
clause. The contract with the underwriters on a cargo for a
voyage is, that the goods shall arrive at the port of destination
uninjured by the perils of the sea; and in case of memoran¬
dum articles, that they shall then exist in specie, though parti¬
ally injured or destroyed. If, therefore, by reason of the perils
insured against, it is rendered certain in the course of the voy¬
age that the article insured will inevitably perish or waste
away, or that on arrival it will cease to exist, it is a total loss
under the memorandum clause ; and a sale of the article at an
intermediate port, in which the vessel is by reason of distress,
will be justified, and the proceeds will become a salvage for
the benefit of the party who is to bear the loss. In such case
it is clear that the loss is total, because, if the voyage had been
pursued and completed, the articles insured would have ceased
to exist, and thus been totally lost, within the meaning of the
policy, at the port of destination. The sale at the intermediate
port does not at all change the rights of the parties under the
policy, but saves something for the benefit of the insurers, which
would otherwise be wholly lost.
According to the English law, and usage among underwri¬
ters, the assured cannot claim reimbursement from the under¬
writers for expenses incurred to avert a loss on memorandum
articles, under the clause authorizing him to sue, labor and
MTÎAL LOSS*
185
travel for the safety of the property at the expense of the under¬
writers, unless a total loss of the whole subject had been impend¬
ing. And it is evident the same principle would apply to the
exception of loss, under five, ten, twenty, or any other rate per
cent., in respect to charges incurred to prevent the loss from
exceeding the rate per cent, of the exception.
What is the effect of the clause limiting' the liability of the un¬
derwriters to a certain amount?
The policies in general use in the United States, stipulate
that "no partial loss or particular average shall in any case
be paid, unless amounting to Jive per cent."
The intention of this restricting warranty is obvious. It is
to protect the underwriters against trifling and frivolous claims.
Had it not been introduced into the policy, the most vexatious
demands might be made upon the underwriters. Not a ship
that came into port at the completion of her voyage, but might
find some petty repair to effect at the underwriters' cost. And
no vigilance would suffice to defend the insurers from imposi¬
tion, if claims were allowed to be unlimited as to extent. In
order, therefore, to avoid constant petty demands upon them
for equivocal damage, and to confine their liability to bona fide
claims, a line was drawn and an arbitrary proportion was es¬
tablished, the tendency of which would be to dismiss claims
and attempts at claims by relieving the underwriters from theïn
if the repairs of damage fell below the limit of five per cent,
on the declared value of the ship in the policy. It was not
intended, however, to apply to general average contribution,
for that was not open to the same objection; a claim on this
account was more likely to be genuine ; and by not limiting
the proportion to a definite ratio, no inducement was held out
to any party concerned to run up expenses where they could
186 MARINE INSURANCE AND AVERAGE.
v
"be avoided. Aecordingdy the underwriters are, in all cases,
liable to the payment of general average, whatever may be the
amount.
m
As we have seen, general average repairs may be added to
partial loss repairs, to bring the partial loss up to the stipulated
per centage.
Among the questions which have arisen in construing excep¬
tions, one of the most important is, whether successive losses may
be added together to make up the required per centage. The
weight of both reason and authority seem to lead to the con¬
clusion that successive losses may be so added, and that the
underwriters are liable if the aggregate equals the five or other
per cent, required. Blackett v. Assurance Co., 2 Crompton &
Jervis 251.
If different articles are insured in the same policy under one
valuation, free from average under a certain per cent,, it has
been held there must be a loss equal to the per centage on the
whole valuation ; but if the articles are separately valued, a
loss on one equal to the specified per centage on its value, ren¬
ders the underwriters liable. Ocean Ins. Co. v. Carrington, 3
Comm. 357.
A similar question arises where a cargo consisting of bales,
packages, or parcels of the same kind of goods, is insured
against total loss only, or free from average under a certain
per cent. In England the law seems to be that if the packages
are separately valued, the assured can recover for all that are
totally lost, but not otherwise. 36 Eng. L. & Eq. 198. Some
adjusters contend that the rule is the same in this country, but
it has been decided otherwise in Pennsylvania. Newlin v. In¬
surance Co., 20 Penn. State 312. In this case insurance was
effected on 104 bales of cotton, valued at $50 per bale. There
was a clause in the policy exempting the underwriters from
partial loss under five per cent. Four hales were lost by the
perils of the sea, and the assured claimed to recover on the
ground that each bale being separately valued, the contract was
to be considered as an insurance on each bale, but the court
PARTIAL LOSS.
187
held that the underwriters were not liable. In Kettell v. Al¬
liance Ins. Co., Sup. Jud. Ct., Mass. T. 1858, Shaw, C. J., speak¬
ing of the rule which allows a recovery for a total loss of part,
said: "11 is admissible only, we think, when goods of the same
kind are separately invoiced and insured, or when insurance is
made specifically upon bales, boxes, or other packages, valued
and insured by the bale or package, or number of packages in
parcels less than the whole." Whatever the law may be where
each parcel is separately valued, it is certain in this country,
that where this is not the case, there can be no total loss of
part. Biayo v. Chesapeake Ins. Co., 7 Cranch. 415; Morean v.
United States Ins. Co., 1 Wheat. 219, Wads worth v. Pacific
Ins. Co., 4 Wend, 88.
What is the effect of the clause respecting Stranding ?
Mr. Parsons (vol. 2, p. 266) gives a clear definition, as fol¬
lows . " As the memorandum articles are all of them of a per¬
ishable nature, and especially liable to a partial deterioration,
insurers desired, many years since, to protect themselves from
liability for injury to them, unless it was certain that this was
not caused by inherent defect or decay. For this purpose, it
was provided that the memorandum articles should be 'free
from average, unless general, or the ship be stranded.'
" The original intention of this provision cannot be doubted.
It was, that the insurers should not be held for any partial
loss, on these perishable articles, unless this was caused by a
peril of such a nature, as to exclude all probability that the
loss was due to the nature of the goods. Such a loss it
was intended to designate by the word 'stranding;' and we
may suppose the word to have been equivalent in the minds
of those who first used it, to 'wreck.'
"It seems certain that the insurers intended to say, that
188
Marine insurance and average.
they should not he liable for a partial loss on these goods,
unless the ship was stranded or wrecked, and the goods there¬
by injured.. The courts, however, did not incline to this view,
but adopted the more literal construction and interpretation
of the phrase, and a meaning was given to it, which was far
from that originally intended.
" Thus, it seems now to be settled that the phrase is to be
read, as if it ran thus : ' goods to be free, etc., unless the ship
be stranded.' And then this stranding is to be regarded as a
condition, and if it takes place, the whole effect of the pro¬
vision is exhausted, and the insurers are liable, if there once
be a stranding, for any partial loss, in the same manner as if
the provision had no existence. The reason given for this is,
that in case of stranding and partial loss, it would be impos¬
sible, or very difficult at least, to say how much of the injury
to the goods arose from their own perishableness, and how
much from the stranding. This construction is now well set¬
tled ;" and Mr. Parsons adds : " but we do not think that it
rests on good grounds." See also, authorities cited by Mr.
Parsons, page 267.
The effect of stranding, therefore, when established, is to
destroy the warranty. The conditions necessary to a strand¬
ing, are: 1st—The course of the ship must be stopped for a
definite portion of time. 2d—The ship must be stopped or her
situation altered by some accidental occurrence; the ground¬
ing or stoppage must be unusual. 3d-—She must be out of
her course; or she must be in a situation she ought not to
be in by the ordinary circumstances of the voyage, &e. 4th—
When stopped, she must not be at all water-borne, she must be
actually at rest on the bottom, whatever it may be.
These appear to be the important features of an established
strand. If the ship be literally stranded, that is enough, with¬
out much reference to the length of time that she remains on
shore, or any regard to the effect of this stoppage. It is not
enough, however, that the ship did just "touch and go"; her
course must be arrested, and all progressive motion must cease.
PARTIAL LOSS.
189
Btit if, after a few minutes delay upon tlie rock or strand, she
is thrown off by the wind or tide, or dragged off by human aid,
still she was " stranded " within the legal meaning of the pol¬
icy ; and this, although neither ship nor cargo were at all in¬
jured. Baker v. Towry, 1 Stark 486; Dobson v. Bolton, Marsh,
Ins. 239; Park, Ins. 148 n.
It is not a "stranding" if the vessel takes the ground in a
tide harbor, in any usual way, and place, merely by the effect
of the tides. But if extraordinary circumstances or agencies
mingle with these natural and customary events, and give to
them their destructive or injurious efficacy, so that the vessel
comes to the ground in an unusual and perilous way, this then
is held to be a "stranding."
PARTIAL LOSS OF FREIGHT.
A partial loss on freight is occasioned by loss of the ship
after a part of the voyage is performed, which makes it neces¬
sary to hire another ship to carry on the cargo to the port of
destination, in order to earn freight; or a loss of a part of the
cargo, whereby the ship is prevented from earning a part of her
freight.
There is no difficulty in adjusting a partial loss on freight,
since 'the whole amount of interest is definitely fixed by the
bills of lading, or charter-party; ôr, in case of the ship and
cargo belonging to the assured, the amount is determined by
estimation, according to the current rate of freight for the same
voyage ; and the whole amount of the interest, and that of
the loss, being ascertained, the rate per cent, of the loss is read¬
ily found.
With regard to interest in freight on policies, it has been
treated in a more liberal manner than any other subject of in¬
surance. In all other insurable interests the true value, with
a little margin for profit, is the extent of insurability. But
with freight a sum is allowed to be covered larger than can
190 MARINE INSURANCE AND AVERAGE.
#
ever be realized by the safe arrival of the ship at her destina¬
tion. The gross amount may be insured—but the gross amount
can in no case be secured by a vessel completing her voyage,
Directly a charter is made, the freight, the subject of that char¬
ter, begins to melt away by ordinary means. First there is the
commission for procuring freight ; then port charges whilst in
harbor. Directly the ship sails, come pilotage &e. From the
first day the crew arrive on board their wages commence and
continue day by day to lessen the freight in an ordinary or nat¬
ural manner. The expenses of taking in and landing the cargo
are often at the ship's charge; and there must be dunnage pro¬
vided and frequently ballast. It is clearly impossible that a
ship can ever save her whole freight under the most favorable
circumstances. It is more than likely that she will never
realize above half of it. So that it is clear, in any case
(speaking of a single voyage), where an owner is fully insured
for his freight, the loss of his ship at any point, even at the
very outset of the voyage, is better for him than her safe arri¬
val, The policy will always in such a case give him more than
a completed voyage. This is contrary to the regulations relat¬
ing to interest in other subjects of insurance. Looking to net
results, a man may insure more than he can ever at the best of
times receive if he be uninsured ; but discarding the notion of
profit, and regarding the actual freight an owner is to receive
if his vessel arrive safely at her destination, it will be seen to
be quite just that he should be able to protect himself to the
extent of the entire sum contingent on the completion or non-
completion of the voyage. •
It may, however, seem an anomaly that whilst all the inci¬
dental and absolutely certain expenses of the voyage are to
have no effect in reducing an owner's insurable interest, they
are to give him the fullest assistance in reducing the amount
on which he contributes in respect of his freight in case of
general average. The freight is to be diminished by every one
of the expenses named, and, as according to the custom in New
York, only» one half the gross amount contributes, so the con-
PARTIAL LOSS.
191
tributory value of freight is generally insignificant in compari¬
son with that of the ship and cargo. The hardship of this
lies on the ship and cargo, because they contribute as much
more in proportion as the freight contributes less. To the un¬
derwriters on freight it is a great relief, as they never are called
upon to contribute on the amount which they really have at
risk. For their risk always continues the same, viz., the sum
insured.
The interest on a freight policy has its inception, that is, be¬
gins, when a ship commences taking in her cargo. Should
the vessel be lost during the process, even when she has only
the minor part of her lading on board, the underwriters would
be liable for a loss on the whole sum insured.
If the supercargo or captain sells goods at some intermediate
port, on account of sea-damage, deterioration occasioned by the
qualities of the articles, or other cause, which might probably
diminish or destroy their value in the subsequent part of the
voyage, but still leave them specifically remaining, the entire
freight to the port of destination will be due on such arti¬
cles, if the master is ready to carry them on immediately, or
within a reasonable time, but is prevented doing so by an ac*
ceptance of the cargo, or waiver of performance by the shipper,
or his agent, at the port of distress; if, however, there be no
such acceptance or waiver, the owner of the vessel is not enti¬
tled to freight, notwithstanding the damaged state of the cargo
justified its sale by the master at such port of distress. It is
well settled, that the master is not the agent of the owners of
the cargo, with power to relieve the ship-owners from the obli¬
gation to convey according to the contract of affreightment.
13 Mees & Welsby, 230. The master is the servant of the
owners, and bound to earn all the freight he lawfully can. If
he neglects to ship, or carry forward damaged goods, when re-
shipment is practicable, the loss arising from such neglect is
not to be borne by the underwriters of freight. As well might
the master leave sound goods at a port of necessity and claim
the freight of the insurers of that interest.
192
MARINE INSURANCE AND AVERAGE.
Since the ship-owner does not, by merely agreeing to trans¬
port an article, take the risk of its deterioration in value by rea¬
son of perils of the seas, or the qualities of the article, if the spe¬
cific goods arrive, though, in consequence of sea-damage or
otherwise, they are of no value, still the whole freight is due,
and accordingly the assured on freight has no claim on the un¬
derwriters for any loss. Phillips on Ins. vol. 2 § 1445.
If the ship is disabled and another might be procured within
a reasonable distance, and on such terms as to leave an excess
of the original freight over that stipulated with the substituted
vessel, or agreed price of other transportation, the loss is the
amount that must have been so paid, and the underwriters are not
affected by the neglect of the master to forward the cargo.
Ibid. § 1444.
Mr, Phillips, says : " If the goods sold at an intermediate port
might have been carried on without damage to the ship or crew,
and delivered at the port of destination in specie, and not so
changed by the ordinary action of the elements, or in conse¬
quence of the previous sea-damage, as to have lost their identity,
though of no value, and accordingly so that full freight should
be due, the sale should be presumed to be made by the request
and for the benefit of the shipper, and full freight be allowed,
and, therefore, the underwriters on freight should not be liable
for any loss."
" Vf here there would be danger of disease or spontaneous igni¬
tion if the goods sold by the master at an intermediate port, on
account of damage or the quality of the articles, had been carried
on, this is ground of presumption of consent and election by the
ship-owner that the sale should be made so far as he is concern¬
ed, without discharging the underwriters on freight from a claim
for partial loss, where the damage is occasioned by a peril in¬
sured against, and without discharging his claim on the shipper
for full freight, where the damage is not by a peril of the sea."
2d Phillips, p. 206.
In Jordan v. Warren Ins. Co., 1 Story, 342, insurance was
effected on freight from New Orleans to Havre. Soon after sail-
PARTIAL LOSS.
193
ing, the vessel met with disaster, and was obliged to put back
to New Orleans. The cargo was found to be so much damaged
that it would have taken several months to have put it in a
condition for re-shipment, and it was sold by consent. Mr. Jus¬
tice Story held, that the master had a right to wait till the goods
were prepared for re-shipment, and then to take them on to
their port of destination, if they would arrive there in specie,
and not having done so, the underwriters were not liable. See
also, Herbert v. Halleck, 3 Johns, Cas. 93 ; Sal tus v. Ocean Ins.
Co., 14 Johns, 138.
The master has a right to hold a cargo once shipped on board
his vessel, and to carry it to its destination, although circum¬
stances may occur which will cause great delay and perhaps
great diminution of value. The contract of affreightment is an
entire contract, and no freight is earned until the carriage has
been performed, unless performance has been excused by the
voluntary acceptance of the goods by the owner at the interme¬
diate port. But the master will say ; suppose the cargo on be¬
ing discharged at the intermediate port, is found on examination
and survey, to be in such an advancing state of decay that it
would be utterly worthless at the port of destination if carried
on, and the owners or underwriters are at too great a distance to
be consulted; would it not be my duty, under such circumstances,
to sell it at the intermediate port; and if I do so, when it could
have been taken forward without danger to the ship or crew,
and with every probability of its arrival in specie, (being articles
of the same kind as those shipped, and not mere remains of its
destruction or decay,) would not the consent of the shipper and
his consequent obligation to pay the freight whieh would have
been earned by carrying on the goods be presumed ; or in other
words, will freight be earned, and if not, will my owners suffer
by my act, or can they recover from their underwriters on
freight ?
There is considerable diversity of opinion both judicially and
among merchants, as to whether the consent of the owner of the
cargo should be presumed in this case ; but it is settled law,
13
194
MARINE INSURANCE AND AVERAGE.
that the owner of the goods is not liable under such circum¬
stances for the payment of freight, either partial or full. In
the case of the ship " Tigress " decided by Justice Strong, in
the Supreme Court of Pennsylvania, February, 1860, 26,221
bushels Corn were shipped at Philadelphia on board the
" Tigress " for Liverpool. The vessel left port in charge of a
pilot, and within a few hours after her departure, while pass¬
ing down the Delaware, encountered floating logs of ice, by
which the bow port was stove in. She then began to sink, and
in order to save her she was stranded. The corn was taken out
by lighters, wet and greatly damaged, brought back to Phila¬
delphia, and sold by order of the master for the benefit of whom
it might concern. It was in such a damaged condition as to
render a sale rightful. The vessel was brought back to Phila¬
delphia, and repaired, and afterwards she sailed on another
voyage. The question, therefore, was, whether upon these facts,
the vessel earned freight upon the corn thus damaged, brought
back and sold by order of the master, and it was a question be¬
tween the shipper and the owner of the vessel. Strongs J.,
said, " The general principle undoubtedly is, that the contract
of affreightment is an entire contract, and that no freight is
earned until the carriage has been performed, unless perform¬
ance has been excused by the owner of the cargo. As be¬
tween the owners of the cargo and the owners of the ship, the
delivery of the cargo at the port of destination is a condition
precedent to the right to freight. The shipper may indeed re¬
lieve the owner of the ship from the obligation to deliver the
goods at the port of destination. Then he is liable either for
pro rata or full freight. But I apprehend, the shipper or owner
of the goods is never liable for full or partial freight upon goods
not delivered at the port of destination, unless the failure to
deliver has been occasioned, at least in part, by his act. I agree
that an express arrangement to discharge the ship-owner from
performance of his contract is not necessary ; such discharge
may be inferred from the acts of the owner of the cargo, but in
the absence of any act of his, there can be no freight earned
PARTIAL LOSS.
195
without performance of the contract of carriage. That the
master is not the agent of the owners of the cargo, with power
to relieve the ship-owners from their obligation to convey ac¬
cording to the contract of affreightment, is now settled both in
England and in this country. It is hardly necessary to say that
the receipt by the plaintiffs of a portion of the proceeds of sale
of the cargo, or the bringing suit for them, amount to no volun¬
tary acceptance of the cargo at Philadelphia, and therefore, to
no waiver of the right to insist that it should be delivered at
Liverpool according to the contract of affreightment, before
freight should become due. The cases show that no such effect
can be attributed to such acts of the owners of the cargo."
See also Vlierbloom v. Chapman, 13 Mees and Welsby, 230;
Hurton v. The Union Ins., Co., 1 Wash. Cir. C. Rep., 530; The
Ann D. Richardson, 1 Abbotts Reps., 499.
If the specific goods arrive, though in consequence of sea-
damage or otherwise, they are of no value, still the whole freight
is clue, and accordingly if they are sold at an intermediate port
when they could have been carried on without clanger to the
vessel or crew, and without being so damaged on arrival as to
have lost their identity, the loss of freight, will be a loss by
the master's neglect, and the assured on freight will have no
claim on the underwriters for any loss.
It is often said in books, that where cargo is delivered to the
owner at the intermediate port, or sold for his benefit, a pro
rata freight is due. Pro rata freight has no existence in law,
or in commercial usage, except as a compromise made by the
owner of a cargo with the owner of a ship, where the former
agrees to receive his goods short of their port of destination
from some cause, when he agrees to give a partial freight, and
the ship-owner agrees to accept it and deliver the goods. Rut
in law, insurance, and the adjustment of averages, there is no
such thing as pro rata freight. No such thing can be demanded
or recovered as a legal right dependent upon the contract of
affreightment, it must be a question of full freight or of no
freight earned.
196
MARINE INSURANCE AND AVERAGE.
If the goods are delivered to the shipper without demand
and payment of the freight, for which the shipper is liable, and
for payment of which the goods are subject to a lien, this does
not affect the underwriters on freight, who do not guaranty the
payment, but only that the earning of it shall not be prevented
by the perils insured against.
As a sale of cargo at an intermediate port entails a loss of
freight, the master should try to reduce the loss by procuring,
if possible, fresh goods to fill up the vacancy in his lading.
Though the underwriter upon freight will not be liable for a
loss of freight, unless the delivery of the goods is prevented by a
peril insured against, and though the shipper will not be liable to
pay f reight, unless the goods are delivered at the port of destina¬
tion, or he voluntarily accepts them short of that port, yet to here
the goods are so much injured that, though capable of being car¬
ried to their port of destination and there landed, they will endan¬
ger the safety as well of the ship as of the goods, or the goods
ivill become perfectly worthless on arrival at the port of destina-
tion, it is the duty of the master, exercising a sound discretion,
for the benefit of all concerned, and especially for the shippers of
the cargo, to sell the same at the port where the necessity arises.
But, in general, it is his duty to carry the cargo to its port of
destination, if the goods can there be delivered in a merchantable
though damaged state. Hiigg v. Augusta Ins. Co., 7 Howard
595; Jordan v. Warren Ins. Co., 1 Story 843; Miston v. Lord,
1 Blatchford 355.
If the ship is lost, or cannot be repaired, nor another pro¬
cured, if the cargo is not perishable, it is the duty of the mas¬
ter, ordinarily, not to sell the cargo, but to store it, and await
the orders of the shippers or underwriters, who ought to be
consulted without delay,
CHAPTER XIV.
TOTAL LOSS AND ABANDONMENT.
A total lossj in insurance law, is one on account of which the
assured is entitled to recover from the underwriter the whole
amount insured by the policy on the subject lost.
There are two kinds of total loss; one absolute or actual, the
other constructive or technical.
An absolute total loss gives the assured a right to claim from
the underwriter, the whole amount of his subscription without
notice of abandonment. The great principle on which all the
cases of absolute total loss depend, appears to be this—the im¬
possibility, owing to the perils insured against, of ever procur¬
ing the arrival of the thing insured according to the terms of
the policy. If, by reason of those perils operating on the sub¬
ject insured, the assured is permanently and irretrievably de¬
prived not only of all present possession and control over it,
but of all reasonable hope or possibility of ever ultimately re¬
covering possession of, or further prosecuting the adventure
upon it, that is a case of absolute total loss ; in such case the
loss is absolutely and of itself total, independently of the elec¬
tion of the assured to treat it as such; and he is, therefore, en¬
titled to recover from the underwriter the whole amount of
his insurance without giving any notice of abandonment.
A constructive or technical total loss is one in which some
198
MARINE INSURANCE! AND AVERAGË.
part or remnant of the subject insured is surviving. When such
a state of things exists, that the property cannot he retrieved,
except at an outlay as great as, or greater than, the original
cost, or the value when it is rescued, the loss is constructively
total.
The expenses of restoring what has been destroyed, and of
repairing what has been injured about a ship, are the most com¬
mon form of a ship's constructive death. The difficulties of
carrying on repairs, or of procuring materials for those repairs ;
the inability to raise means for paying the necessary disburse¬
ments arising in a foreign port ; or the exorbitant rate of inter¬
est demanded for money required for such disbursements, are
the usual proximate causes which lead to the abandonment of
a ship to her insurers.
Since wager-policies are no longer tolerated, a contract of
insurance is emphatically and purely a contract of indemnity,
and the interests of commerce and of the public require that
its true character as such should never be forgotten, and in all
doubtful cases be strictly maintained. Hence, the breaking
up of a voyage ought never to be sanctioned when it is certain
that the ship-owner, if uninsured, would have continued to
prosecute it; nor, consequently, the abandonment of a vessel
as innavigable ever be sustained when it is certain that the
owner, if uninsured, would have elected to repair. When the
policy is valued, it may frequently happen that the breaking
up of a voyage, if a total loss may be recovered, would be far
more advantageous to the ship-owner than its successful termi¬
nation. It is plain, therefore, that in these cases, there is a di¬
rect temptation to dishonesty and fraud.
Whether a partial loss may be converted by abandonment
into a constructive total loss, must necessarily depend, in almost
all cases, upon the amount of the injury. When the vessel is
stranded, the question, whether the loss shall be deemed partial,
or so far total as to warrant an abandonment, will depend upon
the nature and extent of the peril in which the vessel is in¬
volved, and the probable difficulty, hazard and expense of at-
TOTAL LOSS AND ABANDONMENT
199
tempting to deliver and repair her. When it appears that by
proper exertions, she might have been gotten off, and have been
fully repaired at a moderate cost, the abandonment is void, and
a partial loss only can be recovered ; and to warrant the recov¬
ery of a total loss, it must be proved that the delivery of the
vessel from the peril was, upon reasonable grounds, judged to
be impracticable, or not to be effected, unless at an expense
that would absorb her value. In other words, it must be prov¬
ed, that a loss actually total, although not then existing, was,
in the highest degree, probable. Fontaine v. Phoenix Ins. Co.,
11 John's 295; The "Sarah Ann," 2 Sumner 255.
It is a fixed rule, that if the ship be injured by the perils
insured against so as to require repairs to the extent of more
than half her value (nothing in the policy to the contrary), the
assured is entitled to abandon as for a total loss. Deblois v.
Ocean Ins. Co., 16 Pick. 308, 309, 310.
The policies in use in New York and New England, however,
require that the ship must receive injury to the amount of
three-quarters of her insured value, to enable the owner to
abandon her to the underwriters and claim as for a total loss.
Hence, if a vessel is valued at $20,000, and it turns out by sur¬
vey and estimate, that it will cost to repair her $12,000, and
it appears that the wages and provisions of the crew, port
charges, &c., will be $3,000. Under an adjustment as of a par¬
tial loss—
The cost of repairs being ----- $12,000
One third is deducted for new, - 4,000
Leaving - - - - - - $8,000
The insured value being $20,000, half is $10,000, and hence
there can be no abandonment either under a New York or New
England policy.
The expense of repairs is, in general, to be estimated at the
place where they were actually made, or at which they would
200 MARINE INSURANCE AND AVERAGE.
have been made, if made at all. But if a vessel can he par¬
tially repaired at a port of distress, so that she can be taken to
another port and then fully repaired at a less expense than at
the first port, it would seem to be the duty of the assured to do
this, and consequently, the underwriters are only liable for the
lesser expense. Center v. American Ins. Co., 7 Cow. 564. But
the cost of navigating the vessel from the port of distress to
the port where the final repairs are to be made is to be added,
if such a port is one to which the vessel would not have gone
in the course of the voyage. Lincoln v. Hope Ins. Co., Sup.
Jud. Ct., Mass., March T., 1857.
If at the time the abandonment is made, the master has com¬
menced to repair the vessel, the abandonment is invalid, and
the assured can only recover for the expense incurred, although
it exceeds half the value of the vessel. 8 Mason 429; 3 Wend.
658.* The authorities are, however, conflicting as to whether
the insurer has the right, in case of loss to offer to repair the
vessel, and thus to escape liability for more than the actual
cost. If the insurer repairs, it seems that he must do it in a
reasonable time, and lie must tender back the vessel in as good
condition as she was in before the accident, or supply or pay
for any deficiencies, and it has bqqn held that if in repairing,
expenses are necessarily incurred by the underwriters for which
they would not have been liable in an action on the policy, they
may recover the amount of them from the assured. Ritchie v.
United States Ins. Co., 5 S. & R. 501 ; Hart v. Delaware Ins.
Co., 2 Wash. C. C. 846 ; Peele v. Merchants5 Ins. Co., 3 Mason
27; Peele v. Suffolk Ins. Co., 7 Pick. 254; Reynolds v. Ocean
Ins. Co., 22 Pick. 191, 197; Commonwealth Ins. Co. v. Chase,
20 Pick. 142.
There may, perhaps, be a total loss by the sale of the ship by
the master. He has the power to sell only from necessity, and
* This proceeds on the ground that the state of facts existing at the time of the abandonment
determines the right of the assured to abandon.
In Saurez v. Sun Mutual Ins. Co., 2 Sandf 482, it was held that if the repairs are made merely
to carry the vessel from one port to another, in order to make full repairs at the latter port, the
right to abandon is not gone.
TOTAL LOSS AND ABANDONMENT.
201
the sale is valid, only when made from an actual and stringent
necessity ; but this necessity must be judged of from the facts
and probabilities existing at the time and apparent to the mas¬
ter, and not by the result. À sale will only be justifiable,
when it is clear, that under like circumstances, a prudent own¬
er, if on the spot, and uninsured, in the exercise of a sound
judgment, would have broken up the voyage and sold the ship.
In the case of Patapsco Ins. Co. v. Southgate, 5 Peters' 604,621,
the court held, " the professional skill, the due and proper dili¬
gence of the master, his opinion of the necessity and the bene¬
fit that would result from the sale to all concerned, would not
justify it, unless the circumstances under which the vessel was
placed rendered the sale necessary." Chief J. Tindal, in the
course of his charge to the jury, in the case of Somers v. Su-
grue, says—"If you think that if the owner himself had been
on the spot uninsured, he, in the exercise of a sound discretion,
would have repaired the vessel, or that, if an agent of the un¬
derwriters had been there, he, exercising said discretion, would
have repaired, then the master ought to have done so." A ship
insured in Boston, owned partly in Boston, but chiefly in New
Orleans, struck on a shoal on the coast of Florida, but by the
assistance of wreckers she ^as got off. She arrived at Key
West on 23d February; she did not leak, and she might have
remained at Key West in safety until notice of the disaster
could have been sent to Boston ; notice was sent to the part-
owners at New Orleans, and one of them arrived at Key West
on the 11th March ; a survey was then had and the vessel was
condemned as unworthy of being repaired, and on the 21st she
was sold. The expense of repairing her at Key West would
have exceeded fifty per cent, on her value, but at New Orleans
or Boston (to either of these ports she might have proceeded,
and to the latter of which she did in fact proceed, after the
sale, with the same master), the expense would have been less
than fifty per cent. It was held, the sale was not necessary,
and the underwriters were not affected by it. Hall v. Franklin
Ins. Co., 9 Pick. 466. The master is not at liberty to sell with-
202
Marine insurance and average.
out notice to, or the advice of, the owners, provided he be
so near them that he can delay the sale for this purpose with¬
out endangering a greater loss. And if he cannot thus com¬
municate with his owners, but knows that the ship is insured,
and can communicate with the insurers, he is bound to do so.
If in a port where the assured should have funds, the master
sells the vessel'to prevent a forced sale by process of law to
pay off workmen who have a lien on the vessel, the assured
cannot abandon, because the loss was caused by his neglect.
Ruckman v. Merchants' Louisville Ins. Co., 5 Duer 842,868. And
the master cannot sell if the vessel might be repaired but for
the negligence of the resident agents of the owner. Tanner v.
Bennett, Ryan & M. 182. And if the master is part owner, he
has no greater power to sell, so as to affect the underwriters,
than if he were the master only. Prince v. Ocean Ins. Co., 40
Maine 481. If a master sells, he cannot buy; and if the port-
warden, surveyor, or any person authorizing or officially pro¬
moting the sale, should buy, it would be a most suspicious cir¬
cumstance, although not perhaps sufficient, of itself, to avoid
the sale. Church v. Marine Ins. Co., 1 Mason 841. The mere
fact of sale, says Mr. Arnould, 1087, irrespective of the state
of the ship which made it necessary, can never give the assured
the right to abandon. The same doctrine is held by Mr. Phil¬
lips, § 1571 ; and Judge Duer remarks—" the language of these
judicious writers is fully borne out by the cases to which they
refer." Ruckman v. M. L. Ins. Co., 5 Duer 866. The damage
must not be caused by any inherent defect or defective quality
in the thing insured. 1 Phillips, § 1089. Where the loss is
not proximately caused by the perils insured against, but is di¬
rectly referable to the negligence of the assured or his agents,
underwriters are not responsible. 2 Arnould 775, and cases
there cited.
The Schooner Margaret Hopping, on a voyage from New York
to San Francisco, put into Valparaiso as a port of necessity for
repairs; the master was unable to raise the necessary funds on
bottomry, and abandoned and sold his vessel without consult-
TOTAL LOSS AND ABANDONMENT.
208
ing his owners. On these two points Judge Duer says: "For
aught that appears, the condition of the vessel at Valparaiso
was one of entire safety, and it is proved that the master might
have communicated with his owner in this city, by the Panama
route, and have received an answer within eighty, at the utmost
ninety, days from the date of his letter. We are hound to pre¬
sume that the plaintiff, upon being informed of the exact situ¬
ation of the vessel, and of the inability of the master to make
the repairs she needed, could and would have remitted to him
the necessary funds, either in bills, or by opening a credit in
his favor with a house in Valparaiso. Let an additional month
be allowed for repairing the vessel, and another for the time
that would have elapsed from the arrival of the vessel at Val¬
paraiso, until the failure of the master to raise the funds that
he required; we have thus five months as the full period that
would have elapsed, had the course that has been indicated
been followed, from the first arrival of the vessel at Valparaiso
until she would have been fitted by sufficient repairs to re¬
sume the voyage. And the question, therefore, is whether the
fact that this, or even a greater delay, in the resumption of the
voyage, must have intervened, had the master elected to remain
at Valparaiso until he obtained from his owner the funds that
he required, created of itself, independent of' any other circum¬
stance, a constructive total loss, that warranted the master in
breaking up the voyage, and justified an abandonment by his
owner. We are satisfied, both on principle and upon the authori¬
ties, that to this very material question, no other than a negative
answer can be given. The mere continuance of a disabled ves¬
sel in a port of necessity, where she is in actual safety, and is
not exposed to further peril, furnishes no evidence whatever
that in the event, the partial loss will become total ; and it is
doubtless for this reason, that it has been frequently decided
that a suspension of the voyage, merely temporary, is in no case
a valid ground of abandonment of the vessel. In the case of
Anderson v. Wallis (2 M. & Sel. 240), and Evertts v. Smith
(Id. 247), the voyage was suspended by the detention of the
204
MARINE INSURANCE AND AVERAGE.
vessel in port for nearly six months; and yet in each case the
abandonment was held to be void. It is a necessary conclusion
from the remarks we have made and the authority we have
cited, that the delay in the prosecution of the voyage, that
would have resulted from the detention of the vessel for re¬
pairs, even combined with the fact thaf the objects of the voy¬
age as a mercantile adventure were wholly defeated, were in¬
sufficient to justify the proceedings of the master, and, conse¬
quently, to warrant the claim of the assured for a total loss.
Looking to these facts alone, we are clearly of opinion that the
case belongs to the class of those in which it has been held
that it was the plain duty of the master to have communicated
with his owner before he resolved on breaking up the voyage
and selling the ship, and that his*neglect in the performance of
this duty entities his owners to repudiate his acts, and we agree
entirely with Mr. Phillips, that in such cases it is a partial loss
only, that can be recovered from the underwriters." In this
case, where the ship was lying safely at anchor, Judge Duer
says—"the plaintiff had no right to abandon until he was in¬
formed that the voyage was broken up and the vessel sold, in
consequence of the inability of the master to raise funds for
the necessary repairs." Kuckman v. M. L. Ins. Co., 5 Duer 366.
It is for the owner to abandon if he elects so to do, but not
the master; the master has no right to abandon, but must go
on and save the property to the best advantage, and the result
must show for whom he has acted ; he is both agent for the
owners and underwriters, if the facts of the case justify an
abandonment, and it is made in due season, then the master
becomes agent for the underwriters, but otherwise he is agent
for the owners.
ABANDONMENT OF THE CARGO.
Goods are totally lost if destroyed by a peril insured against;
or if injured to such an extent and in such way as to make
TOTAL LOSS AND ABANDONMENT.
205
them of little or no value for the purpose for which they were
intended; or if the voyage upon which "the insurance on the
goods is made, is entirely broken up. But if the voyage is bro¬
ken up, merely for the season, as where the vessel at an inter¬
mediate port requires extensive repairs, or where the ship is
lost, but the goods are saved, and a delay of months ensues,
while waiting for means of forwarding them, the insured can¬
not abandon. 2 Parsons' Maritime Law, page 870; Manning
v. Newnham, 8 Doug. 180; Ruckman v. Merchants' L. Ins. Co.,
5 Duer 842, 865 ; Anderson v. Wallis, 2 M. & S., 240 ; Hunt v.
Royal Exch. Ass. Co., 5 M. & S. 47.
Where the original ship is disabled in the course of the voy¬
age, and no other can be procured at the port of the casualty,
or any neighboring port, the master has a right, where the car¬
go is of a perishable nature and sea-damaged, to sell it at such
port, for the benefit of all concerned; and the assured on goods,
in like case, may abandon, and recover as for a total loss. Ar-
nould on Ins., vol. 2, p. 1122 ; Schieffelin v. N. York Ins Co., 9
John 21, 28; Robinson v. Commonwealth Ins. Co., 8 Sum¬
ner 224. Where, however, the original ship can be repaired,
with any prospect of sending on the cargo, or what remains
of it, in a marketable state to its port of destination, or where
another ship can be procured, either at the same or a contigu¬
ous port, without any very extraordinary delay or sacrifice, the
master is, at all events, empowered, if not bound, to send it on ;
nor can the assured on goods abandon and recover as for a total
loss. , Saltus v. Ocean Ins. Co., 12 John 107; Treadwell v. Un¬
ion Ins. Co., 6 Cowen 276; Arnould, p. 187, 188; 8 Kent (5th
ed.) 212,218; Abbott on Shipp. (6th Am. ed.) 865,866. In
Bryant v. Commonwealth Ins. Co., 13 Pick. 543, a cargo was
insured from Havana to Castine, in Maine, and was wrecked on
the coast of Virginia, about forty miles from Norfolk, but was
taken from the vessel without being damaged, and might have
been sent by land to Norfolk, and thence by water to Castine,
for less than fifty per cent, of its value ; but the master, instead
of sending it to its place of destination, sold it on the beach;
206
MARINE INSURANCE AND AVERAGE.
it was held, that the insurers were not liable for a total loss.
It seems that during such transportation by land, the cargo
would be at the risk of the underwriters.
It is the duty of the master to tranship the goods, or send
them on, even by land carriage, if he can with reasonable en¬
deavors; if he fail to do this and a total loss ensues, this is a
Iqss by the misconduct of the master, and if the underwriters
have insured against that, they are answerable. But the ship¬
pers have a right to look to the owner for compensation for
damage sustained by the wrong doing of the master ; and this
right or claim passes to the underwriters by abandonment.
Mr. Parsons (vol. 2, p. 372) says—" Generally, if the master
could have transhipped the goods, and did not, the shipper can¬
not abandon as for a total loss. And if a part only be saved
in a condition to be transhipped, or forwarded, whether it will
be the duty of the master to do so, must depend upon the quan¬
tity and value of what is saved, and the facilities for forwarding
it, and the probability of its perishing or greatly deteriorating
on the way ; as he would not be bound to discharge this duty
where it was of no practical benefit, or would be to the detri¬
ment of the parties concerned."
If the goods insured remain in specie, but so injured that
they cannot be carried with safety, or any hope of their arriv¬
ing in a merchantable condition, to their destined port, it is
the duty of the master as well as his right, to do the best he
can with them at any intermediate port. If they are of any
value, he should obtain this by a sale, and then the shippers
may claim for a total loss transferring the proceeds by aban¬
donment. This rule would apply, whatever be the cause of
the injury, as a leak, or submersion, or a sudden shock by
striking a shoal or rock, if the peril be insured against. But
if the goods perish by natural decay or intrinsic defect, this
is, of course, not at the risk of the underwriters. 2d Parsons,
873.
The fifty per cent, rule applies to the cargo, as well, and in
the same way as to the ship. But in respect to the cargo, as
TOTAL LOSS AND ABANDONMENT. 207
/
in respect to the ship, if there he a loss not actually total,
hut one which might be made constructively total, whatever
remaining interest or property, or claim on account of the sub¬
ject-matter of insurance, the owner may have, must he trans¬
ferred by him by abandonment to the underwriters. And a
general abandonment has here also, as in respect to the ship,
the full effect of a universal transfer and cession.
If the vessel is wrecked at a distance from any market, and
the goods are taken out and carried to a market and there
sold, under circumstances which render the sale valid, the ex¬
penses of transporting the goods, and of the sale, are to be
deducted from the gross proceeds of the sale to determine
whether the loss has exceeded fifty per cent. Kettell v. Alli¬
ance Ins. Co., Sup. Jud. Ct., Mass., Nov. T., 1857.
Mr. Arnould thus states the doctrine of constructive total
loss, and right of sale of sea-damaged goods, as derivable from
the cases, " That all the circumstances, in fact, are to be consid¬
ered ; and the true doctrine appears to be, that the master can¬
not sell, nor the assured recover as for a constructive total loss,
if, u|3on the whole, it is reasonable, taking into view the nature
and actual state of the cargo, together with the time, expense
and risk of procuring the means of sending it on, that the mas¬
ter should hire another vessel for that purpose, or keep it till
the original ship can be repaired ; if it is not reasonable that
he should do this—if, that is, a prudent owner being on the
spot, and uninsured, would, in the exercise of the best and
soundest judgment that could be formed under the circum¬
stances, rather sell the cargo at the place of the casualty than
attempt to forward it, the sale by the master will be justifiable,
and the assured on giving timely notice of abandonment, may
recover as for a total loss." Arnould on Ins., vol. 2, 1128.
The power of the master to sell the cargo depends on exactly
the same principles as the power to sell the ship, and like it,
can only be exercised in cases of extreme necessity.
The present rule of the English courts is slated with much
clearness by Lord Abinger, in the leading case on this subject.
208
MARINE INSURANCE AND AVERAGE.
Roux v. Salvador, 8 Ring., N. C., 266. "If the goods are of an
imperishable nature, if the assured become possessed, or can
have the control of them, if they have still an opportunity of
sending them to their destination, the mere retardation of their
arrival at their original port may be of no prejudice to them
beyond the expense of re-shipment in another vessel. In such
a case, the loss can be but a partial loss, and must be so deem¬
ed, even though the assured should, for some real or supposed
advantage to themselves, elect to sell the goods where they
have been landed, instead of taking measures to transmit them
to their original destination. Rut if the goods once damaged
by the perils of the sea, and necessarily landed before the ter¬
mination of the voyage, are, by reason of that damage, in such
a state, though the species be not utterly destroyed, that they
cannot with safety be re-shipped into the same or any other ves¬
sel ; if it be certain that, before the termination of the original
voyage, the species itself would disappear, and the goods as¬
sume a new form, losing all their original character; if, though
imperishable, they are in the hands of strangers not under the
control of the assured; if, by any circumstances, over which he
has no control, they can never, or within no assignable period, be
brought to their original destination ; in any of these cases the
circumstance of their existing in specie at that forced termina¬
tion of the risk, is of no importance. The loss is, in its na¬
ture, total to him who has no means of recovering his goods,
whether his inability arises from their annihilation or from any
other insuperable obstacle."
Refore considering the cases where the assured may, and may
not abandon and recover for a constructive total loss ; we should
have mentioned one fact about which there is no controversy,
namely, that the terms "total loss," "total loss only," "free
from average," "free from particular average," "not liable for
partial loss," and "partial loss excepted," mean one and the
same thing, whether that be actual or constructive total loss.
Phillips on Ins., § 1767; Parsons' Maritime Law, vol. 2, p. 888 ;
Murray v. Hatch, 6 Mass., 465 ; Ruchanan v. Ocean Ins. Co., 6
TOTAL LOSS AND ABANDONMENT
209
Cowen 318, 331. We will now briefly state the American doc¬
trine of loss, 1st, at the port of destination ; and 2d, loss at an
intermediate port. The rule in this country, is well settled
that if the goods insured arrive at the port of destination ex¬
isting' in specie, the underwriters are not liable, although they
are of no value whatever. In determining what is a total loss
at an intermediate port, the rule is not so clearly and satisfac¬
torily settled. In New York, the rule appears to be, that if
the goods exist in specie at the intermediate port, the assured
is not entitled to recover. But Mr. Parsons does not assent
to the doctrine, that if the goods exist in specie at the inter¬
mediate port there is no total loss, he contends that this rule
is not founded on principle ; " for," he says, " the insurers guar¬
antee that the goods shall arrive at the port of final destina¬
tion in specie, and if, therefore, owing to the perils insured
against, they cannot be carried forward so as to arrive in specie,
the underwriters should be liable, notwithstanding the goods
exist in specie at the intermediate port. And if the goods are
in such a condition at the intermediate port, that they cannot
be carried forward consistently with the health of the crew
and the safety of the vessel, the loss is considered total." 2
Parsons' Maritime Law, p. 383. We refer the learned reader
to the following cases : Maggrath v. Church, 1 Cain es 196; De-
peyster v. Sun Mutual Ins. Co., 17 Barb. 306; Neilson v. Col.
Ins. Co., 3 Caines 108; Saltus v. Ocean Ins. Co., 14 Johns 138;
Bryan v. New York Ins. Co., 25 Wend. 617 ; Aranzamendi v.
Louisiana Ins. Co., 2 La. 432 ; Williams v. Kennebec Mutual Ins.
Co., 31 Maine 455; Robinson v. Commonwealth Ins. Co., 3 Sum¬
ner 220; Hugg v. Augusta Ins. and Banking Co., 7 Howard 595.
ABANDONMENT OF FREIGHT
One of the grounds of abandoning freight is a total loss of
the ship, by its becoming a wreck or being innavigable. An
14
210
MARINE INSURANCE AND AVERAGE.
indefinite detention of the ship, or one for so long a period as
to break up the voyage, is also a total loss of freight.
But if, although the ship itself be wrecked or otherwise lost,
the master can tranship and forward the goods by reasonable
endeavors and at reasonable cost, we have seen that it is his duty
to do so ; and if he neglects this duty the underwriter is charge¬
able only in the same way and to the same extent as if the duty
had been performed, and the loss will be partial or total, ac¬
cording to its amount when so adjusted. Mr. Parsons says—
" The master has a right to send forward the goods if he can ;
and if he offers to do so, the shipper must either pay him full
freight—-in which case there is no loss—or let him send the goods-
forward, and on their arrival pay him freight. Though it has
been held, that if the vessel is lost and the goods cannot be sent
forward at an expense less than the original freight, there is a
total loss of freight; yet, if the goods were sent on by the
master, this would be on the original contract, and therefore,
the ship-owner having earned his freight, would not be enti¬
tled to claim it from the insurer, for the latter does not stipu¬
late that the adventure shall be profitable, but merely that he
shall not be prevented by a peril of the sea from carrying on
the cargo and delivering it in safety. And if the master acted in
this matter with good faith and reasonable discretion, the ship¬
per must pay the extra cost of sending the goods forward. And
if he does not send them on, at least if it can be done at no
greater expense than the original freight, it is difficult to see
how the loss can be said to be total." 2d Parsons 886.
If the ship and cargo are damaged by the perils against
which freight is insured, but the ship can be repaired in reason¬
able time, and a proportion of cargo on which over half of the
stipulated freight is to accrue, remains in such a condition that
it may be forwarded in the same ship to the port of destination,
it is not a total loss of freight for which the assured can aban¬
don. McGaw v. Ocean Ins. Co., 23 Pick. R. 405.
Where the ship is wrecked or damaged irreparably, or so
much that it cannot be repaired in reasonable time to carry for-
TOTAL LOSS AND ABANDONMENT,
211
ward tlie cargo, and the master unjustifiably neglects to procure
another to carry it on, and earn freight, the loss on freight will
he only the amount which must have been paid to such other
ship. 15 Mass. R. 345.
The absolute loss of the cargo, as of the ship, is a total loss
of freight, although the ship may be in a condition to continue
the voyage. 18 John's R. 208.
Mr. Phillips says—" The ship-owner is responsible only-for
the transportation of the cargo, the freight will be due on its
delivery at the port of destination, and in whatever degree
goods may be diminished in value by decay or damage from
perils of the sea, and though they may have become of no value
on arrival at the port of destination, still, if they are delivered
in specie, being articles of the same kind as those shipped,
and not mere remains of its destruction or decay, freight is due ;
and accordingly, though the goods may be totally lost to all
the purposes for which they can be available to the shipper,
there is not a total loss of freight." 2d Phillips 1648.
In the principle thus clearly settled by Mr. Phillips, ail approv¬
ed writers concur ; it may, however, be said that there is no obli¬
gation upon a ship-master to re-ship goods which are already of
no value and will be worthless on delivery. This objection
would be untenable; the master is the servant of the owners
and bound to earn all the freight he lawfully can. If he neg¬
lects to re-ship damaged goods when the re-shipment is practi¬
cable, the loss arising from such neglect is not to be borne by
underwriters on freight.
If barrels or boxes in which was oil, or sugar, or salt, arrive
in good order, but without the contents, the shipper is liable
for the freight if the loss was owing to an intrinsic defect in
the goods, as where they are lost by decay, evaporation, or leak¬
age, but the shipper is not liable where the contents are washed
out by a peril of the sea. In this latter case, therefore, as the ship¬
owner loses his freight by a peril of the sea, it follows that the
underwriters are liable therefor, although the barrel or box ar¬
rives in safety. De Wolf v. State Mut. F.&M.Ins.Co.,6Duer 191.
212
MARINE INSURANCE AND AVERAGE
The abandonment of the ship transfers to the underwriters
all the remaining rights and interests of the assured; and
among these the power of earning a subsequent freight. If,
therefore, the ship is insured in one place, and the freight in
another, and the ship be abandoned, the underwriters on the
ship will take whatever subsequent freight the ship may earn.
But the underwriters on freight will take the freight previously
earned; because every abandonment refers, in point of time, to
the time of the loss which justifies the abandonment. And in
this country where there is an abandonment and constructive
total loss and transfer, there is an apportionment of the freight.
The part earned before the loss going to the underwriters on
freight, and no more; while that earned afterwards goes to the
owner of the ship, or to his transferees by abandonment. 2d
Phillips 351 ; 2d Parsons 893 ; Coolidge v. Gloucester Ins. Co.,
15 Mass. 341.
If the cargo is wholly lost, and the- ship can take another
for the same voyage or the réinainder of it, the freight so earned
is salvage on that originally agreed for. But this proposition
is applicable only to the case of a prosecution of the same voy¬
age as distinguished from undertaking a different one. Jordan
v. Protection Ins. Co., 1 Story's R. 842.
What is the form and manner of abandonment ; and within
what time must it be made ?
No especial form of abandonment is prescribed by law or
usage. It is the spirit of the act rather than the letter that in
this case is to be considered. Notice of abandonment, however,
is usually given in writing, but even this does not seem to be
absolutely necessary, all other things being valid. It is cus¬
tomary for the assured to write a letter to his underwriters giv¬
ing them notice that he abandons the interest insured to them;
TOTAL LOSS AND ABANDONMENT.
213
and lie frequently gives them what information he possesses as
to the cause and occasion of abandonment. The more distinct
and direct the manner of giving notice the better; but some¬
times an indirect communication, if it be proved afterwards that
the underwriters understood it and acted on it, will be suffi¬
cient. But generally the notice should state substantially the
grounds on which the abandonment is made; and the cause
stated must be a peril within the policy.
It is of importance that the notice should be given to the un¬
derwriters in proper time ; because it is only just that if I throw
up my property and leave it on their hands to dispose of as
they think proper, it should be done when there is yet an op¬
portunity of their acting on my abandonment, and of taking
measures to secure and dispose of the property which lias in
this manner become their own.
In Pierce v. Ocean Ins, Co., 18 Pick. 93, Mr. Chief Justice
Shaw said:—"The underwriters ought to be informed by the
assured who alone know the fact, of the nature of the con¬
structive total loss, upon which the claim is made, that they
may judge whether they will accept the abandonment, and
that they may forthwith take the necessary measures which such
an accejDtance would render necessary and proper. And the as¬
sured cannot avail himself of any other ground, than that stated
by him at the time of abandoning. If the ground stated is in¬
sufficient, the underwriters will be justified in refusing to ac¬
cept the abandonment, and if there be another ground sufficient
in fact, but no notice of it communicated to the underwriters,
it is ineffectual to found a claim for a total loss, as if no aban¬
donment at all had been made "
What is the rule with reference to acceptance of abandonment
by the underivriters ?
It is not necessary to its validity and effect that it be accep-
214
MARINE INSURANCE AND AVERAGE.
ted by the underwriters ; because the rights of the assured do
not depend on the acknowledgment or assent of the underwri¬
ters. And because the acceptance is not necessary to give the
assured his rights, there is no obligation on the underwriters
either to accept, or to declare that they do not accept.
Abandonments are generally refused by the underwriters, be¬
cause admission of the abandonment places them in a some¬
what different position with the assured, and they generally
wish to avoid any accession of responsibility, particularly as
abandonments are frequently made when facts relating to the
loss of the ship and goods are very imperfectly known.
I have already remarked that the master is not empowered to
abandon to the underwriters—he is agent for both owners and
underwriters—-if the facts of the case justify an abandonment,
and it is made in due season, then the master becomes agent
for the underwriters, but otherwise, he is the agent for the own¬
ers. It is the master's duty, therefore, to go on and save the
property to the best advantage, precisely as he would do if it were
his own and uninsured; and the results must show for whom
he has so acted.
What is the effect of abandonment ?
It is the cession and giving up of all right, present and fu¬
ture, in the thing lost, and the transference of all property and
rights to the underwriters, so far as the same belonged to the
assured and to the extent of the interest covered by the policy.
By the general maritime law, not only of this country, but
of all nations, the assured is bound, on the occurrence of any
casualty, which authorizes an abandonment, to use his utmost
endeavors to rescue from destruction, or to reclaim from capture
the property insured, so as to lighten, as far as possible, the
burden which is to fall on the underwriters. In doing so he
TOTAL LOSS AND ABANDONMENT.
215
is considered to be the agent of the underwriters, and the ex¬
ertions he makes in such capacity do not at all prejudice his
right to insist on his abandonment.
* This generally recognized right is expressly conferred on the
assured in our policies, by a special clause to the following
effect:—"And in case of any loss or misfortune, it shall he law¬
ful and necessary to and for the assured, their factors, servants
and assigns, to sue, labor and travel for, in and about the de¬
fense, safeguard and, recovery of the said goods and merchan¬
dise, or any pari thereof, ivithout prejudice to this insurance ;
nor shall the acts of the assured or insurers, in recovering, sav¬
ing and preserving the property insured, in case of disaster, be
considered a waiver or an acceptance of abandonment?
Immediately, therefore, that the emergency arises, and be¬
fore notice of abandonment has been given, the master is
bound to take every necessary measure for the defence, safe¬
guard and recovery of the thing insured; in so doing he acts as
the agent for both parties, or, more accurately speaking, as the
agent of the party who may eventually turn out to he inter¬
ested in the salvage, and, as such, derive benefit from his ex¬
ertions.
If no abandonment be made, that party is, of course, the as¬
sured himself; it is as agent for the assured that the master will
turn out to have acted, and it is to the assured himself he must
look for making good all expenses bona fide incurred by him in
his endeavors to save the property insured.
If, however, an abandonment be made, which is either accep¬
ted, or ultimately proves effectual, the effect of such abandon¬
ment, is, as we have seen, to constitute the underwriter owner
of the property, from the moment of the casualty, and, there¬
fore, to make the master, by operation of law, the agent of the
underwriters in all that he has done bona fide for the recovery
of the property from that time.
APPENDIX.
INTERNATIONA L GENERAL AVERAGE.
In consequence of the great inconvenience of the present system of ad¬
justing General Average, the following Circular was issued by several
Commercial bodies of Great Britain to the Commercial bodies of other
countries, inviting them to send representatives to Glasgow, in Septem¬
ber 1860, to consider the best means of attaining to some degree of uni¬
formity of system.
National Association for the Promotion of Social Science,
3 Waterloo Place, London, 3rd May, 1860.
Gentlemen,
The system of General Average is one, which, to prevent confusion and
injustice, pre-eminently requires that the same principles should be ac¬
knowledged amongst the chief maritime nations. So far is this from
being the case, however, that some of the most important rules vary
not only in the same country, but in the same port. Uncertainty in
law is always an evil ; and, in regard to General Average, the evil is pe¬
culiarly felt. The ship may be owned in one country, insured in another,
her cargo owned and insured in several, and the port of destination,
where the General Average is made up, may be in a country which has
different rules to any of the others. What is considered to be Particu¬
lar Average on ship in one port is held to be General Average in another,
so that the owner of an outward bound ship may find himself unable to
recover his loss either from his Underwriters at home, or as General
Average abroad ; or, on the other hand, he may be in a position to in¬
demnify himself fraudulently twice over. A similar remark would ap¬
ply to special charges on freight and on cargo. A very large propor¬
tion of the most important questions rests in England nominally upon
the decision of that extremely vague authority " the custom of Lloyds,"
218
APPENDIX.
but really depends upon idiosyncrasy of the particular adjuster who may
be intrusted with the papers. Hence arise many cases where, apparently,
injustice must be done to Assurer or Assured. Either the Assured finds
himself saddled with a loss against which he believed himself insured, or
the Underwriter pays one which was not considered in the premium
Much loss is occasioned to the mercantile community and to the
country at large, and much valuable time is worse than wasted through
business being impeded by misunderstandings and irritated feelings.
A still more crying evil insulting from the present uncertainty of law
and custom is the opening which it leaves for every sort of abuse. At
tempts are daily being made to introduce charges of the most outrageous
description which do not even go into the pocket of the Shipowner, but
which he feels himself helpless to resist from want of a law to appeal to;
and he natuially considers himself hardly used should charges which he
himself has paid, be refused by his Undeiwriters, though these last are
obliged to refuse in justice to themselves and to prevent the innovation
becoming a precedent.
The evils of such a state of things are notorious and unquestioned,
though it may be doubted whether many which are distinctly traceable
to it, and are therefore removable, are clearly realized as proceeding
from this source. Trobably the chief reason which has hitherto pre¬
vented any general movement in favor of this reform, is an exaggeiated
estimate of the difficulties in the way of carrying it out. The difficulties
are no doubt considerable, but they are far from being insuperable, and
the importance of the end amply justifies an attempt to grapple with
them. Both the Assured and the Underwriter are interested in placing
their mutual relations upon a footing which would effect a saving of
time and temper, and would secure them against the annoying pecuniary
loss, to which they are at present exposed.
It is not of so much importance how the disputed points of General
Average are settled as that they should be settled. Most of the ques¬
tions are in the end merely matters of account between one set of Un¬
derwriters and another, and it would make little difference to anv Un-
derwriter upon which interest it might be determined the charge should
falh It is true that there are points, such as the allowance of wages and
provisions in a port ot refuge, which would raise questions between Ship
owner and Underwriter, but for the sake of both it is to the last degree
desirable, that these should not be left as a bone of contention between
Assure)' and Assured, as they are at present, e. g. when goods to Ameri
ca are insured in England.
The evils of the present system have already caused much dissatisfac-
international general average.
219
tion in America as well as in this country, and will become more and
more intolerable as the commerce of the world increases, which it seems
likely to do with a rapidity hitherto unexampled. The time then would
seem to have come, when an attempt should be made to remove this
most unnecessary element of irritation between Assured and Underwriter
In the hope of coming to an understanding upon this question, the
Council of the National Association for the Promotion of So¬
cial Science have determined that it shall be brought forward for dis¬
cussion at their next Meeting, at Glasgow, on Monday, September 2ith
next, and following days, and we earnestly trust that you will find it in
your power to send representatives of your body to that meeting, as it is
very desirable that Delegates fiom the Commercial bodies in différent
parts of the world which are chiefly interested should be present.
We are,
Gentlemen,
Your Obedient Servants,
BROUGHAM & YAUX, President of the Council, ) National Association
7 7 V for the Promotion
GEORGE W. HASTINGS, General Secretary, f of Social Science.
DUNCAN DUNBAR, Chairman of the General Shipowners' Society,
London.
THOMAS BARING, Chairman of Lloyds, London.
WM. WILSON SAUNDERS, Chairman of the Association for the
Protection of Commercial Interests, &c., London.
W. J. TOMLINSON, Chairman of the Chamber of Commerce, Liver¬
pool.
F. A. CLINT, Deputy-Chairman of the Shipowners' Association, Liver¬
pool.
CHARLES LANGTON, Chairman of the Underwriters' Association,
^ Liverpool.
WM. M. MOSS, Chairman of the Association for the Protection of
Commercial Interests, &c., Liverpool.
ALLAN GILMORE, Chairman of the Shipowners' Association, Glasgow.
WILLIAM P. PATON, Chairman of the Chamber of Commerce and
Manufactures, Glasgow,
HENRY J. ATKINSON, Chairman of the Shipping Committee of the
Hull Chamber of Commerce and Shipping.
WM. BROWN, ATKINSON & CO., Managers of the Humber and Hull
Mutual Insurance Association.
JOHN SHUTE, Chairman of the Chamber of Commerce, Bristol.
220
appendix.
The following bodies responded to the invitation by appointing Dele
gates to represent them.
The Conference was held upon the 25th, 26th and 2*1 th September,
1860, under the Presidency of Lord Brougham and Lord Neaves.
The adjustment of general average, which is at present governed by
the laws of the Slate in which it is adjusted, formed the entire subject
of discussion before this department. The laws and customs of different
States on this matter differ very inateiially. This is generally admitted
to be a great practical grievance. The object of the discussion on the
subject was to endeavor to put an end to it. The section wa< crowded,
and the chair was occupied by the noble president, Lord Brougham.
The general secretary (Mr. Hastings) first explained how this discus¬
sion originated with this Association. They were applied to this year
by several important commercial bodies, such as the Lloyds at London,
and the Liverpool Chamber of Commerce, to bring up the question of
international general average, and afford the means of discussing the
subject at this meeting of the Association, in order that some uniform
mode might be arrived at. Accordingly, circulars were issued and sent
to America and different parts of Europe, and a considerable number of
answers had been received. They had a large number of foreign dele¬
gates prepared to discuss the different questions. They were desirous,
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.Shipowners' Committee.
.Chamber of Commerce.
. Board of Trade.
.Chamber of Commerce.
.Board of Commerce.
.Chamber of Commerce.
.Underwriters' Association.
.Chamber of Commerce
.Commercial Association.
.Chamber of Commerce.
.Board of Underwriters.
.Chamber of Commerce.
.Board of Underwriters.
First Day's Proceedings—General Average.
INTERNATIONAL GENERAL AVERAGE.
221
as far as possible, to arrive at definite conclusions, and they had prepared
a statement of the principle which ought to be discussed.
Mr. Philip Rathbone, the secretary to this department, then read a
short introductory paper on the subject. He alluded to the differences
which at present existed, and mentioned, as an illustration, that in the
case of a ship with a cargo of cotton, which was obliged on her voyage
to put into port to unship her cargo and get repaired, and then to re
load, the average in the United States might be three times as great as
in this country. He alluded to the presence of foreign delegates, and
explained that the Chamber of Commerce regretted that the man whom
they considered most qualified to represent them at this meeting was
unable to be present.
Mr. Richards said this movement had for its object to assimilate the
general average principles and practice of this, and other countries, and
thus to modify or put an end to the differences which exist between the
laws and customs of different States in relation to general average. To
obtain this desirable result, the mode adopted by the Association was
somewhat in harmony with the views of the late Mr. Stevens, the well
known writer upon average. General average was defined to be all
losses which arise in consequence of extraordinary sacrifices or expenses
incurred for the preservation of ship and cargo. Foreign countries seem
to recognize this definition. The question was, therefore, whence did
there arise a difference in the practice of different countries.
Mr. Benecke said, in reference to voluntary stranding, when a vessel
was purposely run on shore and afterward got off with damage, the
question whether the repairs of such damage belonged to general or
particular averages depended entirely upon the circumstances 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 was 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 desperate position, and the measure of running her ashore was deli¬
berately adopted to save the ship and cargo, in that case, the damage
sustained, according to the fundamental rules, constitutes a claim for res-
t tution.
Mr. E. N. Rahusen read the next paper.
Mr. Haiper next illustrated the mischief arising from want of uniform¬
ity in the laws of average. A Spanish ship, with a cargo worth £200,000,
put into a port of refuge a day or two after putting to sea, and was found
to be rather rotten and wormed. The owner spent £8,000 in repairing
222
APPENDIX.
her, and then, having a fine new ship, took on his cargo to a Spanish
colony. There the general average was adjusted, and the cargo contri
buted to the repairs. But the cargo was woith £200,000, the ship
about £5,000 ; so that the cargo paid nearly all. When the English
merchant was called upon to make his magnificent present, there was
some heartburning, perhaps lawsuits. Mr. Harper concluded by refer¬
ring to similar illustrations.
Mr. Theodore Engels, Antwerp, briefly expressed the interest of his
countrymen in the subject, and their readiness to enter into a general
scheme.
Mr. Thomas It. Davidson, London, read a paper, in which, referring
to the different points intended for consideration, he said that, as regard
ed the first, viz., damage done to ship and cargo by voluntary stranding,
it could not he taken to be general average, as it did not contain that
first element of general average—a sacrifice of something for the gene
ral preservation. As to the second point—the damage done to a ship
in extinguishing a fire—the damage by cutting the deck was general
average, but the damage done by the water was incidental. Point
third chafing and breaking of cargo—was a partial loss; the fourth
point—damage done to cargo in discharging—was general average;
the fifth point—cutting away wreck of masts—-was not general average ;
nor was the seventh one—press of sail, for the purpose of keeping off
lee-shore. As to point eight—wages and provisions of the crew during
delay in putting into port—were not recoverable by general average
though it was a questionable advantage to the owner of the ship. The
last point—contributing values of ship, freight, and cargo—there was a
want of this established principle.
Mr. James Caddow discussed the various points referred to by the
previous speakers, and said that he considered that if the present project
were succesful, it would eventuate in the multiplication of the items
chargeable to general average, and that the British system, where it dif
fered bom that of the United States, would not hold its own in the con¬
flict of deliberation and debate. The genius of the custom of Lloyds,
seemed to be that no loss which would be charged to a particular in¬
terest should be recognized as general average. He concluded by saying
that it would be not the least important result of the labors of the Asso¬
ciation, if it could bring about a general agreement on this subject
Mr. Bailey said, as regarded the wages and provisions for a crew, be
could not in principle draw any distinction between them and the wear
and tear of the ship during the same period, which last was not recog¬
nized as geueial average in any country, as far as he was aware. He did
INTERNATIONAL GENERAL AVERAGE.
223
not expect for general support in this opinion, and therefore suggested a
compromise, by -which the shipowner would, during the vessel's stay at
a port of refuge, receive on general average, some compensation for this
expenditure, which it might be expedient to calculate according to an
established scale. As regarded the future, he could suggest a permanent
international court of appeal for the redress of all grievances, but cui
bono there was not even a reasonable probability that such a court could
act.
The President then called on
Judge Marvin, of New York, who said that he had come more for the
purpose of listening. They in the New World had not time to consider
these questions so fully, but the Chamber of Commerce of New York
thought it advisable to respond to the circular of this Association in the
most respectable manfter, and ask him to attend. There were, besides,
representatives from Boston and Mobile. They were quite prepared to
co operate and join with this Association in airy reasonable movement
which had a fair prospect of bringing about a result so much desired.
He had listened with great attention to the measures suggested by Mr.
Bailey, as to the plan for producing the uniformity desired, after they
had settled the principles on which that uniformity was to be founded.
He did not know but that the plan suggested might be made effectual
by the introduction of clauses into the policies of insurance and bills of
lading, making it obligatory on the parties to submit the question for
settlement, and the rules prescribed by this Glasgow meeting. If that
should be the idea that should be agreed upon, they ought to deliberate
very calmly upon these rules, and not draw them up in great haste. He
saw difficulties, however, in the way of this proposal. It was true that
such clauses would bind the parties to the contract, but would it bind
any body else? They in the United States found often persons engaged
in trade and commerce who were not insured, and could not be bound
by any policies of insurance. They might be bound by a bill of lading,
but even in that it might be stipulated otherwise. The idea that had
occurred to his own mind was, that they should obtain the action of their
respective governments on the subject—in other words, legislation.
Lord Brougham.—That is, that each country should pass the same
law on the subject.
Judge Marvin.—Yes. It was his idea that this congress should not
corne to any definite conclusion as to the rules which should be adopted,
but should provide the means of having these questions referred to some
of'he ablest jurists of this country, who might take into their counsel,
also, some of the best adjusters. These gentlemen might, within the
224
APPENDIX
course of the year, draw up the doctrine of general average—in the form
of a bill to Parliament, if they pleased—and what cases were to be in-
eluded in general average. After this bill had been matured in Great
Britain, he would suggest that it should be printed and sent to all the
commercial cities in the world, and he would undertake that, on the pari of
the cities of America—in Boston, New York, and New Orleans—any such
proposal would receive deliberate attention from the gentlemen engaged
in commerce on that side of the water. Let it also be sent to France,
and other countries, and by that means they would collect a great mass
of experience, suggestion, and thought. The bill would then be return¬
ed to the central committee in London, with the suggestions, and a final
bill would then be drawn up for Britain and its dependencies, which, he
was inclined to think, would pass through Parliament If a great nation
like Great Britain should enact a law, he did not think there would be
any great difficulty encountered in the Congress of the United States ;
and if it were adopted by the two greatest commercial nations, France
and other countries would likely soon follow, and in the course of four
or five years a much greater degree of uniformity might be obtained.
Judge Marvin then referred to the difference in general average affecting
ships bound for Liverpool and Havre with a cargo of cotton, and said
that, when on a voyage, masters had to put in at any place for repair,
they generally congratulated themselves on being bound for Havre. They
in the United States were more inclined to agree with the general
average of continental countries, which had its foundation in the great
civil law of Rome ; there never was any system so just in its details, and
in.the administration of affairs between man and man. [Lord Brougham
■—Yes; generally.] The law of general average in the United States
was also founded on that system, and whenever it was found to conflict
with the system at Lloyd's it would be found to agree with that prevail¬
ing on the continent. (Applause.)
Mr. Bradford, from Boston, said that, where there was any deviation
from the old Roman law, that deviation was on the part of England. He
was rather inclined to concur as to the suggestion of introducing rules into
the bills of lading, than the plan suggested by his friend from New York.
Mr. Daniel Wheeler, from Mobile, said that the State of Alabama, and
the city of Mobile, though comparatively new, were exceedingly anxious
to observe all the best usages of commercial nations. He thought, how¬
ever, that this was more a commercial than a national matter, and
that it ought to be left to the different Chambers of Commerce, who, he
had no doubt, would succeed, at an early date, in bringing in a uniform
system of average.
INTERNATIONAL GENERAL AVERAGE.
225
Mr. Bailey moved tlie following resolution : " That the damage done
to a ship and cargo running on shore was not to be allowed in general
average."
Lord Brougham.—That is what you call voluntary running on shore f
Mr. Bailey—Yes.
Lord Brougham.—I had the misfortune once to be wrecked (laughter)
—sixty years ago, I am sorry to say, coming in a ship from Norway.
We struck on a rock, and, though it was in the middle of winter, there
had been for a considerable time great calms; and, very fortunately for
us, that excessively moderate weather continued. Lord Stuart de Koth-
say and I were together. The first thing that happened to us was the
crush in of our hammocks before getting out in the morning. We went
to the pump, but all our efforts were in vain; the rudder had been
knocked awav, and there was a sufficient hole to sink the vessel. She
. %/ ' '
was water-logged, but luckily for us the cargo was of timber, and therefore
she could not sink. Now, suppose she had not been timber laden, then,
as she was in deep water, with a hole in her bottom, she was quite cer¬
tain to have sunk if she had not been run ashore. Now, suppose she
had not been laden with wood, and the Norwegian captain had run her
ashore, would that have been a voluntary act—running her ashore to
save her being sunk. Another risk was this—we remained for many
hours before we could get any boat, and if a wind had sprung up—as
was not unlikely in the middle of February—either from the shore or
from the sea—it did not signify which—the vessel would have gone to
pieces. Now, would the captain have been justified in running her
ashore to avoid that risk ? He had two risks to avoid—a wind getting
up and driving her out to sea or on shore ; and supposing she had not
been timber-laden, she would have sunk unless driven ashore. Would it
have been a voluntary stranding to avoid sinking ? (General cries of
11 No, no ! ") I can't see that it would.
Mr. Bazley said his lordship demurred to calling running on shore a ship
to avoid sinking, a voluntary act. It was a voluntary act, as anything was
voluntary that a man did from choice. It he were standing on a line,
and a train coming up, he would jump off, as a reasonable man, but
still, if he chose, he could stay on and be killed.
Lord Brougham.—Suppose a highwayman comes up to you, and puts
a pistol to your breast, and says, "Give me your purse or your life,"
and you give him your money to save your life—you call that a volun¬
tary act? (Loud laughter.)
Mr. Bazley.—Most certainly he would. These are things which all
reasonable men would do, but still they are voluntary.
15
226
APPENDIX.
Lord Brougham.—You consider, then, that which converts high pro¬
bability into moral certainty; and, in case of the highwayman, yon run
the risk of your life by refusing to give up your purse, and convert into
moral certainty you, being killed by him, and therefore his killing you
is suicide on your part.
Mr. Bichards thought Mr. Bazley had lost sight of one of the great
principles of average ; because the running of the ship on shore must
not only be a voluntary act, but the captain must be able to show that
he had lost something which he would not have lost otherwise, which
could not be the case, because if be bad not run ashore he would have
lost every thing.
Mr. Wertlrheim thought that practically there would not be much
good obtained by the resolution that had been submitted.
Mr. Bradford, of Boston, said that the law in Massachusetts was very
cautious as to general average, and that he was of opinion that the reso
lutiou went too far.
Mr. Harper would vote for the resolution because of its practical utility,
though he thought it theoretically wrong.
Judge Marvin, of the United States, was of the same opinion.
As several of the speakers proposed some alteration in the terms of
the resolution,
Lord Brougham suggested the resolution to be as follows: "That the
damage to ship, cargo, and freight, by running a ship on shore, shall not
be allowed in general average, although it was done for the safety of the
ship, freight and cargo."
Mr. Leathley, delegate from Lloyd's, on being asked to vote, said that
he declined to vote. Lloyd's considered that the resolution was prema¬
ture. They, however, hoped that the question would be brought to a
satisfactory solution, although they were afraid it would, like all great
movements, require time.
The original resolution, to which there was no amendment, was at
length put, when eighteen voted against it, and fifteen in favor of it,
Judge Marvin proposed the second resolution, which was, "That the
damage done to ship, cargo and freight, in extinguishing a fire, shall be
allowed in general average."
It was put to the meeting and carried by twenty to four.
As it was after four o'clock, the other resolutions were not put, and
the meeting adjourned.
international general average
221
Second Day's Proceedings—Lord Heaves Presiding»
G mer at Average.
Mr. Rathbone proposed the third resolution, which was, "That the
damage done to cargo by chafing and breakage, resulting from a jettison
of part of the remainder of the cargo, shall not be allowed in general
average."
The Chairman said that the resolution could be supported by princi¬
ple, and that, even although it was consistent with principle, it could be
opposed if it was not expedient.
Mr. Richards remarked that the jettison was a direct act; but the in¬
jury by derangement of stowage was secondary, and ought to be borne
by the owner of the specific goods. The cutting away one mast was
frequently the cause of cutting away another. If the mast were cut
away, and fell over the ship's side, and, from the action of the waves,
that mast was thrown upon the sides, so as to injure the ship and injure
the goods, he should consider that as particular average.
Judge Marvin would vote for the resolution were the words "not im¬
mediately" placed after the words "chafing and breakage."
The original motion was put, and carried by fourteen to ten.
Mr. Rathbone read the fourth resolution: "That the damage done to
cargo, and the loss of it and the freight on it, resulting from discharging
it at a porlj, of refuge in the way usual at that port with ships not in
distress, shall not be allowed in general average."
Mr. Leathby thought that this resolution was the same question as that
which was involved in the preceding resolution.
Mr. Bailey thought differently, and remarked that when a cargo was
discharged it was exposed to injury in various ways, such as from the
weather, from the passage of the cargo between the ship and warehouse,
lobbeiy in the warehouse and floods there. If such damage was done,
the question was, should such damage be allowed ? Other goods could
be injured in handling at the port of refuge which wrould not be injured
had they gone direct to their destination. Again : there were goods
which could not bear remaining for a length of time in port without in¬
jury;, such as fish, and, as a gentleman had said, tea. He thought that
they might split up the resolution by taking up damage done accident¬
ally, and damage done naturally. The breaking of a cask could be the
former, and the spoiling of goods by delay could be the latter.
After some gentlemen had spoken, /
The Chairman put the resolution as it was, saying that those who
could not support that sweeping resolution might vote against it.
228
APPENDIX.
However, at the suggestion of Mr. Bichards, who was supported by
several gentlemen, the expression "at that port" was changed i * that
of "in a poit."
The vote was put, and the motion carried by twelve to six.
The lift h resolution was then submitted. It was, "That the loss sus¬
tained by cutting away the wreck of masts accidental!} broken, shali
not be allowed in general average."
Mr. Bailey thought, as a matter of principle, it Vas not general aver¬
age, as the thing sacrificed was the cause of the danger ; and how was
it possible to estimate the value of a thing in a gale of wind?
Mr. Bradford, of Boston, was of the same opinion. He never had allowed
general avei age under such circumstances, and né ver intended to do it. It
O C '
was also against the known opinion of the whole of the United States.
The motion was put, and catried by twenty to two.
The Chairman, while expressing sorrow for his German friends, hoped
that this expression of opinion would not be without its influence.
The sixth resolution was—"That the expense of warehouse rent at a
port of refuge on cargo necessarily discharged there, the expense of
re-shipping it, and the outward port charges at that port shall, when the
ship carries on the cargo from that port, be allowed in general average."
The resolution was carried by nineteen to four.
The seventh resolution, which was carried unanimously, was—" That
the damage done to ship, cargo and freight, by carrying a press of sail,
shall not be allowed in general average."
The eighth resolution was—"That wages and provisions for the ship's
crew shall be allowed to the Ship-owner in general average from the
date on which the ship reaches a port of refuge in distress till the date
she leaves it."
The resolution was carried by fifteen to ten.
The ninth resolution was—"That the contributing values of ship,
freight and cargo shall be their actual values to the owner of them at
the time when they became liable for the general average."
There was a discussion whether the value of the ship should be taken
at the time of the damage or at the time it had arrived at its destination.
The general opinion was that it should be at the time the ship had got
to its destination.
Mr. Bailey thought that, in regard to the value of the ship, it should
be the value of the ship to the owner, and not what it might bidng, if
placed in the market. For in the latter case there might be no one who
had a need for a ship, and consequently it would bring a low price—a
price not near its value.
International general average.
229
The Chairman said there were two questions before them, and that
they could not adopt the resolution as it stood, as it was not clear what
it meant, and would leave as many questions behind it as it would dis¬
pose of. But they all seemed agreed that the value must be taken to be
the value of the thing as at the termination of the adventure, but sub¬
ject to this, which was open to difference of opinion, viz., was the value
of the ship to be affected or not by the depreciation occurring subsequent
to the1 time when the act of the general average arose?
The motion was split up into two, and these were modified as follows :
"That the contributing values of ship, freight and cargo, when the
amount of expenses is less than the value of the property finally saved,
shall be their actual value to their owners at the termination of the adven¬
ture." "That when the amount of expenses exceeds the value of prop¬
erty finally saved, the excess of expenses over the proceeds shall be ap •
portioned as if the whole, property had reached its destination." A third
resolution was considered at the same time. It was—" That, in fixing
the value of freight, the wages and port charges up to the date of the
general average act, shall not be deducted, and the wages and port
charges after that date shall be deducted from the gross freight at the
risk of the ship owner."
The three resolutions were then put together to the meeting, when
fourteen voted for the first and one against it; for the second resolution,
twelve for and two against; and for the third resolution, seven for and
three against it.
Judge Marvin suggested that a committee should he appointed to draw
up the resolutions in correct language, so that they might be sent, if it
were agreed upon, by the meeting, with their recommendation, to the
various Chambers of Commerce.
The suggestion was approved of, and Lord Heaves, Judge Marvin,
*
Messrs. Bailey, Richards, Harper and Rathbone were appointed as that
committee, who were instructed to submit the resolutions at a meeting
to he held today.
Mr. Bailey suggested—and the suggestion was also approved of-—that
the names of those who voted should be mentioned, as well as the bodies
they represented; and that it should be mentioned whether the votes
were given through approval of the principle, or from .expediency. He
(Mr. B.) had voted from the one motive and from the other. Lloyds
would be influenced according to the status of the votes, and conse¬
quently it would be well to give the names.
The meeting then adjourned till to-day.
230
APPENDIX.
The third day's proceedings of this section took place, under the pres¬
idency of Lord Neaves
On the motion of Judge Marvin, rules which he had drawn up, found¬
ed upon the resolutions which had been adopted the two preceding days,
were submitted. With the exception of the first rule, all the rules
were passed. This first rule was modified, and passed as follows:
" That, as a general rule, in the case of the stranding of a vessel in
the course of her voyage, the loss or damage to ship, cargo, or freight,
shall not be the subject of general average, but without prejudice to such
a claim in exceptional cases upon clear proof of special facts."
The two following resolutions were then adopted :
" That this meeting hereby requests the Council of the Association to
assist by their counsels such person or peisons as may be approved of by
them, in drawing up a bill, with a view to its being enacted into a law
by the legislative authorities of the several nations of the world, which
bill shall define, as clearly as may be, the term* 4 General Average/ and
describe more or less fully the cases intended to be included within the
definition, and which shall also specify the nature of the loss, damage or
expense allowable in the general average, and the principle on which
the amount of the loss, damage or expense shall be ascertained ; also
furnish a rule or rules for ascertaining the contributory values of the in¬
terests concerned, and which shall also contain such matters as the per¬
son or persons drawing up the bill may think it advisable to insert. That
upon such bill being drawn up and printed, copies thereof shall be trans¬
mitted to the several chambers of commerce, boards of underwriters,
ship-owners' associations, and other commercial societies in different parts
of the world, accompanied by a copy of this iesolution, and a request to
them to examine and return the said copies, with such alterations or
amendments as they may think proper to make therein, within six
months from the time of the receipt thereof. That, upon the return of
the mid copies, or upon the expiration of the said six months, the said
bill shall be revised by the person or persons diawing up the same, en
lightened by the information acquired as aforesaid That, upon the bill
being perfected in the manner aforesaid, it be recommended to the Par¬
liament of Great Britain, the Senate and Legislative Body of France,
the Legislative Bodies of Holland and Belgium, the Congress of the
United States, and the legislative authorities of other commercial na¬
tions, to enact the same into a law."
The second resolution was, "That, in the mean time, the meeting re¬
solves to circulate, as widely as possible, for general information, the
rules embodied in the resolutions which have been passed by the meet-
INTERNATIONAL GENERAL AVERAGE
231
ing, as those which, under a uniform system, it might be desirable to
consider."
A vote of thanks to Lord Brougham and Lord Neaves for presiding at
the meeting of this section, ami another to Judge Marvin, and the other
foreign gentlemen, for having come so far to take part in the proceed¬
ings, concluded the business.
The following is a recapitulation or summary of the foregoing resolu¬
tions:—
Rule 1.—That, as a general rule, in the case of the stranding of a
vessel in the course of her voyage, the loss or damage to ship, cargo or
freight, ought not to be the subject of General Average, but without
prejudice to such a claim in exceptional cases upon clear proof of special
facts.
Rule 2.—That the damage done to ship, cargo and freight, in extin¬
guishing a fire, ought to be allowed in General Average.*
Rule 3.—That the damage done to cargo by chafing and breakage,
resulting from a jettison of part of the remainder of the cargo, ought
not to be allowed in General Average.
Rule 4.—That the damage done to cargo, and the loss of it and the
freight on it, resulting from discharging it at a port of refuge in the way
usual in that port with ships not in distress, ought not to be allowed in
General Average.
Rule 5.—That the loss sustained by cutting away the wreck of masts
accidentally broken, ought not to be allowed in General Aver age.
Rule 6.—That the expense of warehouse rent at a port of refuge on
cargo necessarily discharged there, the expense of re shipping it, and
the outward port charges at that port, ought to be allowed in General
Average.f
Rule *7.—That the damage done to ship, cargo and freight, by carry¬
ing a press of sail, ought not to be allowed in General Average.
Rule 8.—That wages and provisions for the ship's crew ought to be
allowed to the Ship-owner in General Average, from the date the ship
reaches a port of refuge in distress until the date on which she leaves it.
Rule 9.—That when the amount of expenses is less than the value of
the property finally saved, the contributing values of ship,( freight and
*This, it will be observed, includes the damage done by water to property which was actually
on fire at the time when the water extinguished that fire.
-j-Inward port charges and expenses of discharging are already universally allowed.
232
appendix
cargo, ought to be their values to the owners of them respectively, at
the termination of the adventure.
Rule 10.—That when the amount of expenses is greater than the
value of the property saved, the proceeds of the property so saved ought
to be applied towards those expenses, and the excess of the expenses over
the proceeds ought to be apportioned as if the whole property had finally
reached its destination.
Rule 11.—That, in fixing the value of freight, the wages and port
charges up to the date of the General Average Act ought not to be de¬
ducted, and the wages and port charges after that date ought to be de¬
ducted from the gross freight, at the risk of the Ship-owner.
I am not aware what further progress has been made with this mat¬
ter, but I understand no bill has yet (May, 1862) been received, by
either the Chamber of Commerce, or the Board of Underwriters of New
York.
Though I fully concur in the opinion, that it would be highly desira
ble to establish a uniform system of rules and principles to govern the
Adjustment of General Average amongst the chief maritime nations, I
fear the task will be found exceedingly difficult, if not utterly impracti¬
cable.
Most of the continental nations of Europe, have undertaken to regu¬
late the matter by ordinances or codes, many of which are of great an¬
tiquity; the construction of these ancient rules has been fixed by much
jurisprudence ; they have been the subject of elaborate commentaries
and the practice of the respective ports and places where they exist, has
so long accorded with them, that nothing short of legislative action can
practically supersede their force.
Even in France, the leading principles of the Commercial Code, es¬
tablished by Napoleon the First, are the same as those of Louis the Four¬
teenth, on the subject of average; and considering that any essential
change in respect to this branch of the law, involves a modification of a
code which has served as a text for the learned commentaries of Valin,
Emerigon, Boulay-Paty, Pardessus and others, I doubt whether it will
be practicable to prevail upon that government to introduce any prac¬
tices which militate with their code.
Until the days of Lord Mansfield, the laws and usages of England
did not vary essentially from those of the rest of the commercial world ;
the system prevailing in that country, at the time of our Revolution,
was adopted by us as a part of the common law, and has governed our
INTERNATIONAL GENERAL AVERAGE
233
practice ever since, Great Britain has introduced innovations, some of
them under the sanction of courts of law, but more of them as " Cus¬
toms of Lloyds"; and I apprehend it will be found very difficult to con¬
vince Lloyds' Underwriters, that those customs, long sanctioned by them,
ought to be essentially modified.
The disallowance of wages and provisions, constitutes the principal
difference between the English practice and ours, so far as the pecuniary
interest of the assured on the one hand, and the Underwriters on the
other, is concerned, because this expense is the only one absolutely ex¬
cluded by English rules. All other average charges are allowed in both
countries, but differently apportioned.
Marshall, an approved English authority, writing in 1802, cites from
Beawes the following rule :—" Where a ship is forced to enter a port to
repair the damage she has suffered in a storm, being unable to continue
her voyage without apparent risk of being lost, the wages and 'provisions
for the crew, from the day it was resolved to seek a port to refit the vessel,
to the day of her departure from thence, with all the charges of unload¬
ing, re-loading, anchorage, pilotage, and every other expense incurred
by this necessity, shall be brought into a general average." Marshall
on Ins., book 1, chap. 13, § 7.
This rule', thus approved in England, is now, and always has been,
the foundation of American Practice. British courts of law have inva¬
ded it, and the " Custom of Lloyds " has been to disregard it in many
particulars ; but nevertheless the Courts of the United States have ad¬
hered to it
Rule 8 proposes to meet the American rule to some extent, by allow¬
ing wages and provisions in general average, from the date the ship reaches
a port of refuge in distress until the day on which she leaves it.
Great Britain having overthrown the ancient land-marks by adopting
new rules of law and "Custom of Lloyds", I think it will be an easier
matter for her to return to the path which the rest of the commercial
world have followed? with very slight variations, since the days of the
Rhodians, than her efforts to remedy the various evils which have resul
ted from discrepancy of practice, by adopting conventional rules.
The following Synopsis of General Average Practice was recently prepared in England, and
transmitted to the several Chambers of Commerce, Boards of Underwriters and other Commercial So¬
cieties in different parts of the world, for the purpose of illustrating the discrepancy at present existing
betiveen the practice in ENGLAND, AMERICA and FRANCE, and the necessity of establishing some
uniform system.
In this respect, and as giving a good general idea of the law of those countries, it will be very
useful. But not safe to use, in all cases, as a guide and reference for practice.
GENERAL AVERAGE,—General Principles.
General Principles.
English Practice.
American.
French., f
[i] " Common Interest."
There must be a " Com- Expenses incurred, sacri
mon Interest" between fices made, or damage
all property affected by sustained for the com-
a general average. mon benefit of ship,
General Average, in gene¬
ral, comprises damages
and expenses voluntarily
incurred for the common
welfare and safety of ship
and cargo, from the load¬
ing and departure to the
return and discharge of
the same. Rogron, 400.
A loss arising ont of extra- Phillips, II. 64.
ordinary sacrifices made,
Baily. freight and cargo con
stitute General Average.
o
or extraordinary expen¬
ses incurred for the joint
benefit of ship and car-
go*
Amould, 878.
* Omits to mention freight. f In this column the practice of Bordeaux is indicated by B., in Paris by P.
[2] Voluntary and deliberate act.
M Amount of danger requisite to
justify a general average act.
The leading characteristic
of a general (as distinct
from a particular) aver¬
age loss is, that it is the
intentional act of man,
not the inevitable results
of the perils insured
against.
Arnould. 881.
There must be a moral cer¬
tainty of total loss when
the act is performed.
Baily.
The sacrifice must have
been made under the
urgent pressure of some
real and immediatelyim-
pending danger, and
must have been resorted
to as the sole means of
escaping destruction.
Arnould, 884.
A loss, though it be extra
ordinary and not a part
of the expense hnd in¬
convenience of navigat¬
ing the vessel, if it take
place without the agency
of the master, crew, or
other persons acting for
the general benefit, is
not a subject of general
contribution, which must
be where an expense is in¬
curred, or sacrifice made
with deliberate intent.
Phillips, II 65.
In order to constitute aba-
sis for a contribution for
an expense or sacrifice it
must be occasioned by
an apparently imminent
peril.
Phillips, II. 65.
The act must be voluntary
and deliberate ; notwith¬
standing in some cases of
an immediate danger, the
General Average is ac
cepted, though the loss
or sacrifice has been
made without delibera¬
tion. B.
Same as English. B.
GENERAL AVERAGE,—General Principles,
General Principles.
M The act must be deliberate and
judicious.
[5]
M
Whether a successful result be
necessary.
English Practice.
The act must be judicious.
Baily.
Must be the result of due
deliberation.
Arnould, 887.
American.
Immediate and necessary con¬
sequence.
An act may be a general
average act when it did
not and really could not
have had a beneficial
effect. Baily.
The loss must be the neces-
sarv immediate effect or
consequence of the gen¬
eral average act. Baily.
Whatever is eventually
saved must contribute,
though the impending
peril as capture or ship¬
wreck, on account of
which the sacrifice is
made, is not thereby
avoided or is not avoided
at all. Phillips, II. 99.
French.
Same as English. B.
If jettison save not the shi]
no contribution can b<
levied upon her. *
Same as English. B.
* It is understood that the vessel is lost by the same peril that the jettison was to save her from.—Rogron, 423.
Immediate and necessary con¬
sequence.
Not the cause of danger.
Must be sacrifices not included
under tbe contract of the Bill
of Lading.
The loss must not be one
which would have been
sustained if the general
average act had not been
performed.
Baity.
The loss must not be caus¬
ed by the sacrifice of an
article which is itself the
immediate cause of the
danger which renders its
sacrifice necessary.
Baity.
All expenses incurred, and
all ordinary manoeuvres
rendered necessary for
the purpose of transport¬
ing the goods or keeping
the ship in a fit state to
transport them, are a
direct consequence of
the ship-owner's contract
with the freighter, and
no claim for general ave¬
rage can be sustained,
unless the sacrifices and
expenditures out of which
Same as English.
Same as English.
If the owner of the vessel
is the party claiming
contribution, he is en¬
titled to remuneration
only for extraordinary
expenses and sacrifices,
and such as constitute a
loss under a policy ot in
surance, since the ordi¬
nary expenses of navi
gating the vessel must
be borne by the owner,
as a means of earning
freight. Phillips, II. 71.
Same as English.
GENEE AL AYEEAGE. General Principles,
General Principles.
English Practice.
[10] Whether it he necessary to con
suit with the crew or not pre
vious to the commission of an
act of general average.
it arises were of an ex¬
traordinary nature.
Arnould, 885.
It must not be included
in those ordinary duties
*
and expenses of the na¬
vigation which come un¬
der the head of wear and
tear, and are paid out of
the freight.
Arnould, 887.
Not necessary.
Baily.
American.
It belongs to a ship-owner
in general to furnish a
sea worthy ship, and so
far as possible keep it in
a condition suitable for
prosecuting the voyage.
Phillips, II. 82.
The act to be that of the
master alone.
Phillips, II. 70.
Erench.
Captain to consult officers,
and owners of cargo if
on board ; in case of dif¬
ference of opinion that
of officers to prevail.
Pogron, 410.
GENERAL AVERAGE.-Jettison.
Jettison and its Consequences.
English Practice.
American.
French.
[1]
To prevent a vessel foundering.
General Average.
General Average. B.
]2]
To enable a vessel to escape an
enemy.
General Average.
^ General Average if sue
cessfuî. M.
General Average. B.
[3]
To float a stranded ship.
General Average.
J
General Average. B.
M
To get rid of goods which en¬
danger the vessel and the pro¬
perty in her. [Cargo heated, &c.]
Not General Average.
Not General Average. M.
Not General Average. B.
[5]
When the jettison does not save
the vessel.
%
General Average on pro
perty eventually saved,
if any.
Same as English Law. M.
Phillips, II, 94, 95.
Not General Average f
Rogron, 423.
[6]
Cargo under deck.
General Average.
General Average. M-
m
[8]
— In the poop.
— In a house on deck.
Disputed.
Disputed.
) In American coastwise
>■ trade, General Aver-
) age. M.
General Average.
Rogron, 421.
* 433 " If the Jettison save not the ship, no contribution takes place,"—Code de Commerce. But, adds Rogron, u Remark that this alludes to the case when
the same event causes the jettison and the loss of the vessel."
f In this column the practice at Mobile is indicated by M.
GENEEAL AYEEAGE—Jettison.
Jettison and its Consequences.
W
On deck where deck loads
are not customary.
[10] — Where they are.
[II] Ship's stores.
[12] Water casks on deck.
[13] Chains on deck.
[14]
Except when near shore.
English Practice.
Not General Average.
In practice, general contri
bution, not binding on
Underwriters.
General Average if in pro¬
per place.
Not Générai Average.
Not General Average in
most cases.
General Average.
American- f
Not General Average. M.
Phillips, II. 71.
When the custom is plainly
established, General
Average. *
Phillips, II. 75.
General Average only in
local trade, where so es¬
tablished by usage. M.
Same as English. M.
Same as English. M,
If jettisoned from the
place where they are
usually carried, Gene¬
ral Average M.
French.
Not General Average, ex¬
cept in coasting voyages.
Rogron. 421.
General Average in Coast¬
ing Voyages. B.
Same as English. B.
Same as English. B.
Same as English. B.
Same as English. B.
[15] Ship's stores in a state of wreck.
[16] Freight on cargo jettisoned.
Damage or Loss to Cargo-
[17]
[18]
[19]
ci
[20]
by being got on deck in
order that it may be jetti¬
soned, or to get at other
goods which the crew in¬
tended to jettison.
by water getting down
the hatches whilst jetti¬
son is taking place.
by water getting down in
consequence of a mast
being cut away.
by putting it into the
water, or into lighters
alongside a ship which
is aground, in order to
get the ship off.
Considered part of acci- Not General Average. M. Same as English. B.
dent which reduces them
to " state of wreck."
Same as the Cargo on
which
would have
been earned.
General Average.
o
General Average.
Disputed.
General Average.
General Average.
Phillips, II. 85.
Same as English, M.
General Average. M.
General Average. M.
General Average. M.
Phillips II. 77.
General Average. M.
General Average. B.
General Average.
Bogron, 400.
General Average.
Bogron, 400.
General Average. B.
Disputed. B.
GENERAL AVERAGE-Jettison.
Jettison and its Consequences,
[21] — by chafing or breakage
in consequence of stow¬
age being damaged owing
to a jettison.
Damage done to Ship—
[22] — in order to effect jettison,
[23] Jettison under necessity during
capture.
English Practice.
Disputed.
General Average.
American.
General Average. M.
Phillivs II. 11.
General M.
French.
General Average.
Bogron, 421.
Those effects which are
least necessary, heaviest
and least valuable are to
be jettisoned, then car¬
go from the between
decks at the choice of the
captain after advising
with his officers.
Bogron, 411.
GENERAL AVERAGE.
Voluntary Sacrifice of Ship's Materials or
Outfit.
Cutting away Masts, Sails, Ac.
[i] - to righten a ship on her
beam ends.
[2]
[3]
M
[3]
to prevent a ship driving on
shore.
sails blown away when let
go to lighten the ship.
bulwarks cut away to re¬
lieve a vessel of water which
floods her decks.
masts cut away when in a
state of wreck.
English Practice.
General Average,
General Average.
General Average.
General Average.
Not General Average.
* Of course only to the extent of their supposed value m state of wreck.
Damage to Ship.
American.
General Average. M.
Phillips, II. 75.
General Average. M.
General Average. M.
Phillips, 23.
General Average. M.
* Probably General Aver¬
age. Phillips, II. 77.
Depends upon circum¬
stances. Dixon, 6.
Depends upon circumstan¬
ces, hut not general Ave¬
rage beyond their sup¬
posed value a's wrecked
property. M.
French.
General Average.
Bogron, 400.
General Average. B.
General Average. B.
General Average. B.
* General Average.
Bogron, 400.
GENERAL AVERAGE,—Damage to Ship.
Voluntary Sacrifice of Ship's Materials
or Outfit.
[6]
m
M
damage to copper by wreck
of mast cut away before it
is finally released from the
vessel.
a spar or sail cut to save a
mast.
stern boat cut away.
Anchor and Chain voluntarily
slipped—
[9] — to avoid being driven on
[10]
shore.
to escape an enemy.
English Practice.
Disputed.
Not General Average.
Not General Average under
ordinary circumstances.
American.
General Average. M.
General Average.
General Average.
General Average if the cut¬
ting away is the means
of saving the mast. M.
General Average if custo¬
mary. Phillips, II. 15.
Allowed in Philadelphia,
custom varies in Boston.
Dixon, 8.
Depends upon circumstan¬
ces. M.
French.
Not General. B.
Same as English. B.
General Average. M.
Phillips, 11. 80.
General Average. M.
Phillips, II. 86.
General Average. B.
General Average. B.
[11]
[12]
[13]
to avoid a collision.
when anchor, temporarily
foul, is slipped to avoid im¬
minent peril.
when foul under ordinary
circumstances.
[14]- vessel lost for want of an¬
chors, <fec., voluntarily slip
ped from.
Damage to ship in effecting jet¬
tison. See Jettison.
Damage to ship herself, in attempt
in g to force her off when
stranded
General Average.
General Average.
General Average. M. J General Average. B.
Phillips, II. 80.
General Average. M.
»
[15]
[10]
[11]
[18]
when above water,
when below water.
by steamers or lighters, in
forcing off a stranded ship.
when the result of misman¬
agement.
Not General Average.
Loss of ship, <fec., not Ge¬
neral Average.
Phillips, II. 77.
Owners of ship.
Phillips, 11. 77.
Same as English. M.
General Average as a rule.
Not General Average as a
rule.
General Average when un¬
avoidable.
Not General Average.
Same as English. M.
Same as English. M.
Same as English. M.
Same as English. M.
General Average. B.
Not General Average.
Same as English, B.
Same as English. B.
Same as English. B.
Same as English. B.
Same as English. B.
GENERAL AVERAGE-Damage to Ship,
Voluntary Sacrifice of Ship's Materials
or Outfit.
(19)- Chain parted in conse¬
quence of anchoring in an
improper place,
[20] Yoluntary damage to ship, which
is nevertheless totally lost, part
of the cargo being in lighters,
and thus saved at the time of
the voluntary damage.
Damage to ship—
[21] — by voluntarily running a
ship on shore
L22]
[23]
by scuttling, to extinguish
fire.
by scuttling, when no
danger to cargo.
English Practice.
Not General Average.
Not General Average.
Not General Average.
Repairing hold General
Average ; remainder not
General Average,
American.
Appears uncertain, probab¬
ly Underwriters on ship.
Phillips, II. 80.
Not General Average. M.
Not General Average. M.
]yhiUi2JS1 ft. 123*
French.
Same as English. B.
Not General Average as
rule at Martinique or
Bourbon in winter sea¬
son. B.
Not General Average. B.
General Average. M
Phillips, II. 89.
General Average. M.
Phillips, II. 88.
Not General Average. M.
Phillips, II, 85.
General Average.
Rogron, 400.
General Average, if the ship
and cargo are saved. B.
Not General. B.
H
by carrying press of sail
to avoid a lee shore or
capture.
[25] — by worms at a port of re¬
fuge.
[26] — by defence against pirate
or enemy.
Ship's materials or stores used
for purposes hot contemplated
in the ordinary course of the
voyage, viz. :
[27] Anchors and chains damaged in
forcing a stranded ship off
[28] Sails damaged under similar cir¬
cumstances.
[29] Boats lost or damaged do. do.
Damage to Ship's materials and
stores—
Not General Average.
do. do.
do. do.
General Average.
General Average.
General Average.
Underwriters on ship; in
Louisiana, General Aver¬
age. Phillips, II. 80.
General Average, when to
avoid an enemy.
Pogron, 400.
Accepted here in both cases
as General if ship is
Probably General Average.
Phillips, II. 88.
saved.
Not General.
Not General.
General Average. M.
General Average. M.
General Average. M.
Disputed.
Disputed.
Disputed.
B.
B.
B.
B.
B.
B.
GENEE AL AVEEAGE—Damage to Ship,
Damage to Ship's Materials and Stores.
[30] -
[31]
[32] -
by sails cut and altered
to serve for others lost.
by using one kind of sail
instead of another.
by using ship's materials
for purposes for which
they were not construct
ed, in order to save all
the interests concerned
during imminent peril.
[33] Jury masts and ship's stores used
in securing masts.
LOSS ON FREIGHT.
[1] By voluntary stranding.
[2] On cargo shut out at a port of
refuge.
English Practice.
General Average.
General Average under
some circumstances only.
General Average.
American.
General Average in most
cases.
Not General Average.
Disputed.
General Average. M.
Dixon, 8.
Same as English.
O
General Average. M.
Phillips, II. 83.
Same as English. M.
General Average.
Phillips-, II. 85.
French.
General Average. B.
Same as English. B.
General Average. B.
General Average. B.
Disputed.
Disputed.
B„
B.
Xioss or Damage to Cargo.
By
[i]
discharging- it from a stranded
vessel.
unavoidable.
[2]
when the result of mis¬
management.
[3] Loss of cargo in discharging when
a vessel is at a port of
refuge.
At a Poet of Refuge.
14] Damage in discharging by fire or
robbery in warehouse.
Loss or Damage to Cargo.
[5] — by cutting timber in order
to re-ship it.
General Average in some
cases.
Not General Average.
General Average in some
cases.
Not General Average.
Do.
do.
General Average. M.
Not General Average. M.
Phillips, II. 85.
General Average. M.
Same as English. M.
General Average if the ship
has been stranded for the
common interest, not
general if by unavoida¬
ble circumstances. B.
Not General Average. B.
Same as English. B.
Depends upon circumstan¬
ces. B.
Depends upon circumstan¬
ces. B.
GENEBAL AVEEAGE.—Loss or Damage to Cargo,
to
Ox
©
Loss or Damage to Cargo.
[6]
m
by voyage being converted
from a summer into a
winter voyage.
by reason of wreck of or in¬
juries to vessel.
[8] — by consequence of injuries
to cargo itself.
[9]
by worms, insects or climate.
[10] Pressed cotton shut out, there be
ing no cotton press procurable.
[11] Loss by sales effected to pay
General Average expenses at a
port of refuge.
[12] — to pay any other expenses.
English Practice.
Do.
do.
Do.
Do.
Do.
Do.
do.
do.
do.
do.
General Average.
American.
Charged to the interest for
which those expenses
were incurred
Same as English. M.
General Average. M.
Phillips, II. 125.
French.
Not General Average. B.
Not General Average. B.
Not General Average. B.
Not General Average. B.
Not General Average. B.
General Average.
Same as English. B.
B.
>
►d
5ZÎ
O
X
[18] Loss by sale to pay the debts of
the master or his owners.
[14] Loss or Damage by pouring
water down to extinguish
fire.
[15] — by scuttling a ship to extin¬
guish fire
[16] — by running the vessel on shore.
[U] Loss of Interest on capital by
detention at port of refuge.
[18] Loss of Use of vessel do. do.
[19] Loss of Market on cargo do. do.
[20] Loss or Damage—voluntary—to
the property of others for gen¬
eral benefit.*
Expenses.
[i] Disbursements absolutely paid
for the common benefit when
the ship is wrecked.
Not General Average.
Phillips II. 85.
Not General Average.
Do.
Do.
Do.
Do.
Do.
do.
do.
do.
do.
do.
Genera1 Average.
Master or shipowner. M.
>Not General Average.
Not General Average. B.
Not General Average. B.
General Average. M.
Phillips, II, 88.
General Average whether
lost or not lost after¬
wards. M. Phillips, II.
Not General Average. B.
Not General Average. B.
Not General Average. B.
Not General Average. B.
Not General Average. B.
General Average. B.
General Average. B.
M
*
H
»
P3
*
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H
i-i
O
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* E. G. If the crew of one vessel is obliged to cut the cable of another to preserve their own ship and cargo.
to
GENERAL AVERAGE.—Expenses.
Expenses.
[2] Expenses as above raised upon
bottomry and therefore
contingent upon ulti¬
mate safety of vessel.
[3] — of delay at sea when a
ship stays to refit.
M — of delay at the termina¬
tion of the adventure,
[5] — of delay when frozen
up in a port of refuge.
[6] — in the ordinary course
of the voyage.
English. Practice.
General Average if the
bond is payable.
Not General Average.
Do.
Do.
Do.
do.
do.
do.
American.
Follow same rule as loss by
Jettison. M.
Phillips, II. 123.
General Average. M.
Phillips, II. 103.
Shipowner. M.
Phillips, 101.
General Average. M.
Not General Average. M.
Phillips II. 104.
French.
As English. B.
As General. All the ex¬
penses incurred for de¬
lay from the day it has
been decided after de
liberation of tbe crew
the ship was to go into
a port of refuge up to
the day the ship com-
. mences her repairs,
and from the day she
finishes her repairs up
to the day she h as come
back to the same lon¬
gitude and latitude,
or about where the
first deliberation took
place. B.
m Expenses when the voyage is bro¬
ken up by the vessel being ob¬
liged to return home or when
she is sold for salvage or when
abandoned to Underwriters.
[8] Expenses of quarantine on usual
course of voyage whether of a
usual or unusual length of time.
[9] Goods or money paid as ransom
to Pirates for the
whole interest.
#
[10] — — if for separate in¬
terests.
["] -
to a public enemy.
[12] Expenses incurred incase of cap¬
ture in the separate account of
the ship or cargo.
[13] Expenses of delay and making
x claim for vessel and cargo in
case of capture.
Not General Average.
Illegal.
Underwriters on ship. M. General average—up to the
day the ship is aban¬
doned. B.
Not General Average. M.
Phillips, II. 104.
General Average. M.
Phillips, II. 114.
To be contributed for by the
interests benefited. M.
Phillips,II. 110
Illegal. M.
Phillips, II. 114.
Charged to such separate
accounts. M.
Phillips, II. 113.
General Average. M.
Phillips, II. 110.
Not General. B.
General Average.
Bogron, 400.
Not General. B.
Illegal. B.
Same as American. B.
General Average. B.
GENERAL AVERAGE-Expenses,
Expenses.
[14] Salvage in case of capture.
[15] — in other cases.
Expenses at a Port of Refuge.
[16] Inward Port Charges, such as
towage, pilotage, lights, dock¬
age, health fees, &c., &c., when
a vessel is driven there by—
English Practice.
American.
General Average.
O
General Average.
General Average.
Phillips, II. 113.
in]
Damage to herself.
[18]
[19]
[20]
[21]
Bickness of crew.
Want of water or pro¬
visions.
Damage to or shifting
of cargo.
Pumps choking.
General Average when ori
ginal cause of putting
into port is unavoidable.
Do.
Do.
Do.
Do.
do.
do.
do.
do.
When a ship puts into
port in consequence of
any disaster, General
Average. M.
Phillips, II. 101, 105.
/
French.
General Average. B.
General Average. B.
General Average. B.
As English. B.
[22] Postages.
[23] Notarial Fees.
[24] Adjustment Fees.
[25] Brokerage.
[26] Commissions on advances for
general average purposes.
[27] Interest when charged on ad¬
vances for general average
purposes.
At a Port of Befuge.
Expenses Discharging car¬
go and carrying to a point
of safety.
[28] — to repair ship.
General Average.
'General Average. M
Phillips, II. 105,106.
General Average. B.
General. B.
General Average. M.
Phillips, II. 101 & 105.
General if the repairs are
the consequence of an
act of General Average.
B.
GENERAL AVERAGE.—Expenses.
Expenses.
[29] - to cool, &c. cargo.
[30] - because pumps are choked.
[31] - a deck load.
[32] — to float a stranded ship.
[33] — to re stow when shifted by
perils of the sea.
[34] - to enable a ship to enter a
port of refuge.
[35] — to enable a vessel in the or
dinary course to leave her
port of loading.
[36] — to enter her port of destina
tion.
[37] — to cross a bar or shoal in
her ordinary track.
[38] Bagging a cargo when it is in
damaged bags.
[39] - when it is in bulk.
[40] Airing and cooling cargo.
English Practice.
General Average.
General Average.
General Average.
General Average.
General Average.
General Average.
V Not General Average.
Not General Average.
General Average.
Not General Average.
American.
"General Average. M.
'Not General Average.
M.
French.
General Average in some
cases. B.
General Average. B.
General Average. B.
General Average. B.
General Average.
Bogron, 400.
General Average. B.
Not General Average. B.
Not General Average. B.
Not General Average. B.
Not General Average. B.
h=l
[41] Discharging goods at a port of
refuge in consequence of an
accident there, after part of
cargo has been discharged
by a general average act.
*
[42] Expenses of coopering casks as
far as rendered necessary by
discharging.
[43] Pilotage, &c. &c. outwards.
[44] Warehouse rent on cargo at a
port of refuge.
[45]
when re-shipped by same
vessel
[46] — when not re-shipped.
[47]
when re-shipped by other
vessel.
Ke-shipping cargo at a port
of refuge.
Not General Average.
Freight.
Cargo.
Do.
Do.
Do.
[48] - when the cargo is re-ship¬
ped by same vessel.
Freight
Doubtful ; depends entirely
on the circumstances. M.
General Average. B
General Average. M.
Phillips, II. 105.
General Average. M.
General Average. M.
General Average. M.
Phillips, II 105.
General Average. M.
Phillips, II. 105.
Not General Average.
General. B.
General. B.
General. B.
General. B.
GENERAL AVERAGE.—Expenses,
£49]
[50]
[51]
Expenses.
when it is discharged in
consequent of an accident
at a port of refuge.
When it is shipped by an¬
other vessel.
Expenses resulting from leaving
portion of cargo at a port of
refuge to avoid discharging
all.
[52] Hire of lighters at a port of re¬
fuge to avoid landing cargo.
[53] Expense of cooling, airing and
repairing cargo.
[54] Wages of men employed to
pump—
[55] — when cargo is on board.
English. Practice.
Do.
Freight, unless the expense
of re-shipping it and the
new freight exceed the
original freight.
Not General Average in
some cases.
Do.
do.
Cargo.
General Average.
American.
Ordinary charges, General
Average. M.
General Average. M.
Cargo. M.
General Average. M.
Phillips ) II. 105.
French.
General. B.
General. B.
General Average. B.
General Average. B.
Cargo. B.
Not General. B.
Not General. B.
[56]
when it is not.
Not General Average.
m
"Wages and provisions of crew
during detention at a port of
[58]
[60]
[61] —
[62]
refuge.
during detention for the
purpose of prosecuting
the voyage on a decree
of release. x
[69] — . paid in error.
of crew when they are dis
charged as seamen and
hired as laborers.
of men hired to watch or
guard property.
of laborers hired in the place
of seamen.
Shipowner.
Shipowner.
Shipowner.
Shipowner.
Property concerned.
Shipowner.
General Average. M. Not General. B.
Phillips II. 105.
General Average. M.
Phillips, 11. 107.
General Average. M.
Phillips, II. 110.
Not General Average. M.
Phillips, II. 109.
General Average. * M.
Phillips, 105,
General Average M.
Phillips, II. 105.
Shipowner. M.
General Average if vessel
is chartered by the
month, not otherwise.
Pogron, 400.
i
Shipowner. B.
V-
Shipowner. B.
Shipowner. B.
General Average. B.
Shipowner. B.
GENERAL AVERAGE.—Expenses,
Expenses.
English. Practice.
American.
French.
[63]
— of men employed to promote
the prosecution of the
voyage otherwise than in
repairs belonging to Gen¬
eral Average.
General Average. M.
Phillips, II. 105.
Not General.
B.
[64]
Extra wages to men to supply
the places of deserters at a
port of refuge.
%
Shipowners.
Not General Average. M.
Phillips, 11. 85.
Shipowner.
B.
[65]
Gratuities promised in time of
danger to seamen.
Shipowner.
Shipowner. M.
Phillips, II. 85.
Shipowner.
B.
[66]
Permanent repairs to sbip at a
port of refuge, except of
damages voluntarily incur¬
red.
Not General Average.
Underwriters on ship. M.
Phillips, II. 107.
Not General.
B.
[67]
Temporary do. do.
Not General Average
cept under certain
cumstances.*
ex-
cir-
To a strictly limited ex¬
tent, General Average. M.
Phillips, II. 83.
Not General.
B.
[68]
Extra expenses of repairs at an
inconvenient port of refuge.
Not General Average.
Not General.
B.
[69] Teniporary repairs of ship at
port of refuge to avoid dis¬
charging cargo.
[70] Expenses on passengers at a
port of refuge.
[71] Bottomry premium on expenses
incurred- at a port of refuge.
[721 Insurance on expenses incurred
at a port of refuge.
[73] Landing cargo when a vessel is
wrecked or properly con¬
demned at a port of refuge.
[74] Landing specie when a vessel is
wrecked or properly con¬
demned at a port of refuge.
In some cases General Av¬
erage.
O
Underwriters on passage
money if with usual
clause of policy.
Not General Average ex¬
cept on that portion of
expenses allowed in Gen¬
eral Average.
Not General Average ex¬
cept as above.
General Average.
Charged to underwriters
on specie only which do
not pay for landing rest
of cargo.
General Average. M.
Phillips, II. 124.
General Average. M.
Cargo. M.
Not General. B.
General Average. B
Same as English. B.
Same as English. B.
General Average. B
General Average.
* For example, when the
alternative would be, incurring other expenses which would be General Average.
GENERAL AVERAGE-Expenses.
Expenses.
English Practice.
American.
French.
Landing ship's stores in case of
wreck.
E1
AT*
i j
— when landed before cargo
in order to facilitate dis¬
charge of cargo.
General Average.
General Average. M.
General Average. B.
[76]
— do. do. without reference
to dis -harge of cargo.
Underwriters on ship.
Freight. M.
Not General. B.
[77]
— when cargo and ship's stores
• are landed together.
General Average.
General Average. M.
General Average. B.
i 1
00
J>
I—J
Interest actually paid by the par¬
ty advancing the money.
Allowable in general aver-
age.
General Average.
Phillips, II, 125.
General Average. B.
[79]
— not so paid but charged by
him.
Doubtful but probably Gen¬
eral Average.
Phillips, II. 125.
Not General Average. B.
[80]
— if shipowner.
Not General Average.
Not General Average. B.
[81]
— if not.
Commission on Advances.
[82]
[83]
[84]
[85]
in port of ownership.
— loading, when ship
has put back.
in intermediate port.
— port of destination.
Agency Charges.
[86]
[87]
in port of ownership.
in foreign port of loading,
when ship puts back.
— intermediate port.
[88] -
[89] -
[90] — lump sum.
[91] -
port of destination
per centage on value of
cargo landed.
Not allowed.
Allowed, if foreign port.
Allowed.
Allowed, if foreign port.
Not allowed.
Same as English. M.
Not allowed, M.
Allowed in General Aver¬
age cases. M.
e lump sum must not
be unreasonable. M.
/
Not General Average. B.
General Average. B.
General Average. B.
Not General Average. B.
Not General Average. B.
General Average. B.
General Average. B.
Not General. B.
General Average. B.
GENERAL AVERAGE-Expenses,
to
c5>
Expenses.
[92] Expenses getting a Ship off
the Ground.
English. Practice.
American.
French.
If ordinary measures such
as lightering are suffi¬
cient, General Average.
But if extraordinary
measures such as buoy¬
ing are used, Under¬
writers on ship.
Phillips, ii. 89".
If as far as incurred for
purpose of saving ship,
cargo and freight, and
are common to all these
interests, are a subject of
contribution to all.
Phillips, ii. 116.
If the ship is got off with¬
out discharging cargo,
or by discharging only
part, then the whole ex
pense for the purpose
may be General Average
in case of the vessel not
needing repairs,—if it
needs repairs these are
Particular Average
Phillips, ii. 116.
Getting a ship off ground
is General Average.
Rogron, 400.
î>
hi
tel
55
o
i-I
X
Expenses when the Vessel is
Stranded at a distance erom
her destination.
[93] - when the value of the ship General Average.
is improved, and the
ship and cargo are after¬
wards re-united.
[94] — do. do. and they are not Underwriters on ship.
re-united.
[95] — when the vessel is not im ' General Average.
proved by heaving off.
[96] Expenses when the Vessel is Underwriters on ship.
Wrecked or Stranded
close to her Port of des
tination.
[97] Expense of forwarding wrecked Freight,
cargo by another ship.
General Average.
Goods being landed from a Not General. B.
stranded ship and de
livered to consignee cease
to be liable for General
Average.
Phillips, II. 116
Not General. B.
Freight to extent of original NTot General. B.
contract. Extra freight
to carg<^ M.
GENERAL AVERAGE,—Expanses.
Expenses.
English Practice.
American.
French.
[98] Expense of shipping an anchoi
and chain after a chain has
parted.
General Average, less usual
expense, if necessity ur-
gent.
Same as English. M.
Same as English. B.
[99] Cost of an unsuitable anchor
and chain supplied undei
such circumstances when no
suitable anchor and chain
are procurable there, or it
forms no part of the master's
duty to get them there.
General Average less pro¬
ceeds.
Same as English. M.
General Average. B.
[100] Hire of an unsuitable anchor
and chain under such cir¬
cumstances.
General Average.
General Average. M.
General Average. B.
*
[101] Hire of an anchor and chain
under such circumstances to
avoid purchasing an anchor
and chain.
Not General Average.
Not General Average M.
Not General Average.
[102] Hire of anchors, cables and
boats for temporary pur¬
poses.
General Average. M.
Phillips, IT. 105.
Not General Average. B.
[103] Expense of freeing master when
arrested for his own or own¬
ers debts.
[104] Expenses followed by total loss.
What Interests should contribute and
their values.
[1] When only one General
Average takes place.
[2] Ship—
Caroo-
Not General Average.
Allowable as if followed by
safety.
Only such interests eontri
bute as may be at risk.
Contributes her value to
the owner at the termi¬
nation of the adventure.
If damaged, value in the
damaged state.
Master or owners. M.
Phillips, II. 85.
Allowable as if followed by
safety. M.
/ Phillips, II. 123, 133.
In practice at New Yorh
and Pennsylvania four-
fifths. Massachusetts a^
in England. At New
York when vessel is sold
contributes according to
sale.
Phillips, II. 136
Contributes on actual value.
M.
Not General Average ' B.
<D
Not General Average. B.
Same as English. B.
Half value as per policy of
insurance. Court of Bor¬
deaux.
As ascertained at port
where general average
is made up. Court of
Caen.
Rogron, 401, 417.
GENERAL AVERAGE,—Contributary Interests,
[3]
M
[»]
[6]
Contributory Interests.
for which there is hill of
lading.
for which there is not.
when the bill of lading de¬
scribes goods of lower
value than its real worth.
when the bill of lading de¬
scribes them of higher
value than its real value.
English Practice.
Contributes the value be¬
ing estimated in the
same way as if it had
been jettisoned. See
Jettison.
Contributes.
Contributes on its real
value.
do.
do.
American.
Contribute on their ac
tual value. M.
French.
Value at port of discharge.
Rogron, 402.
Cargo for which there is no
bill of Lading or decla¬
ration of captain con¬
tributes but is not paid
for and ought to be jet¬
tisoned first.
Rogron, 420.
Contributes on its real value.
Rogron, 418.
Contributes the value in
bill of lading.
Rogron, 418.
m
Provisions for passengers and
emigrants.
[8]
convicts and troops.
[9] Animals to a market.
[10] Passengers effects.
[h] Passage money.
[12] Crew's wages.
[13] Crew's effects.
[14] Munitions of war.
[15] Money lent on respondentia or
bottomry.
If for consumption, do not
contribute.
do.
Contribute.
do.
Do not contribute.
Contributes if at risk.
Do not contribute.
Do not contribute.
Does not contribute.
Provisions unconsumed
contribute.
Phillips, II, 137, 151.
Contribute on their actual
value. M.
Do not contribute.
Phillips, II. 151.
Do not contribute.
Phillips, II. 144.
Do not contribute. M.
Provisions do not contri¬
bute.
Pogrom, 419.
Contribute. B.
Contribute. B.
Do not contribute. B.
Same as English. B.
Do not contribute.
Pogrom, 419.
Do not contribute.
Pogron) 419.
Does not contribute. B.
GENERAL AVERAGE—Contributory Interests.
Contributary Interests.
English Practice.
American.
Prench.
[16] Profits on cargo.
Contribute, included in va¬
lue of cargo.
Not eo nomine but is prac¬
tically included in sound
value. Phillips, II. 80.
Included in sound value.
M.
Same as English. B.
Freight where the Acci¬
dent happens on the OuT-
ward Passage.
[17] — on ships loaded by owners.
Contributes on total value
saved less such expenses
as have not been incur¬
red* and are therefore
not at risk, including any
extra expenses which
may be rendered neces¬
sary by the accident.
Massachusetts and Mary¬
land two-thirds gross
' freight earned. New
Yoik half gross freight
earned.
Phillips II. 145.
In Virginia two thirds.
Dixon, 17
One-half of gross freight.
M.
Contributes one-half value
of policy of insurance.
Court of Bordeaux.
Value at port of adjustment.
Court of Caen.
Pogron, 401.
Value as by arbitration. M.
[18] — do. chartered out only.
The freight as above.
As above. B.
[19] On shij >s chartered ont and
home by one charter.
[20] — , when charterers ship the
whole cargo.
[21] — when they do not.
[22] — .when the vessel is in bal¬
last.
[23] — when at a-port of refuge a
General Average hap¬
pens, part of the cargo
being discharged.
Freight when the Accident
happens on the homeward
Passage.
[24] — when loaded by owners.
[25] — when chartered and load¬
ed by third persons in
whole or part.
The homeward freight con
tributes.
The homeward freight does
not.
The homeward freight con¬
tributes.
The whole freight as above
including that upon the
cargo discharged.
The freight less as above.
do. do. as per bill of
lading.
Freight to next port only.
M. Phillips, II. 141.
Homeward freight does not
contribute. M.
Phillips,, II. 141.
As per arbitration for the
value of freight. B.
As per arbitration for the
value of freight. B.
Not General Average when
the ship is in ballast, as
a rule. B.
As English. B.
The Freight as estimated
by arbitration. B.
The Freight as estimated
by arbitration. B.
M
tel
H
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W
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M
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tel
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H
tel
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fel
W
©
fcd
* In practice it lias lately become the custom to include charges that have been incurred at port of loading.
to
-<T
GENERAL AVERAGE,—Oontributary Interests.
Contributary Interests.
Freight when the goods are
transhipped by another ves¬
sel.
English Practice.
— payable "lost or not lost."
Interest sacrificed.
The excess of original
freight over transhipping
freight and extra charges
consequent.
Becomes thereby part of
the value of cargo which
contributes accordingly.
American.
Specie in ordinary cases.
Contributes at the probable
value at the termination
of the adventure.
Contributes at its full value.
The excess of original
freight over transhipping
freight and extra chaiges
consequent.
Phil lips y II. 143.
Does not contribute eo no¬
mine.
PhillipSy II. 139.
Contributes.
Phillips y II. 155.
( ? paid by shipowner or
goods owner.)
In case of masts or sails
sacrificed it contributes.
PhillipSy II. 137, 138.
French.
The Freight as estimated
by arbitration. B.
Interest sacrificed contri¬
butes.
PogroUy 417.
As English at its full value,
as per manifest. B.
00
When there is a Second Gene¬
ral Average.
[30] Ship for first General Average.
[31]
for second General Aver¬
age.
Freight for first General Average.
[32]
]83]
[34]
[35]
[36]
when result of expenses.
do. do. loss or damage.
for second General Aver¬
age.
on goods re shipped on
fiist occasion.
do. do. not re-shipped
on first occasion.
In theory, value at time of
first General Average. In
practice her value at
termination of adven¬
ture.
*
Value at termination of
voyage.
Follows same rule as ship.
Follows same rule as ship.
Only contributes on such
freight as is on board at
the time of the accident.
Contributes to both.
Contributes only to first
General Average.
Same as English. B.
w
«
i-3
te!
Same as English, B. gj
Same as English. B.
Same as English. B.
>■
H
o
«
SJ5
Same as English. B. g
tel
Same as English. B. >
>
Same as English. B. &
>
o
tel
fco
«<r
CO
G-EMEBÂL AYEBÂGrE,—Contributary Interests.
Contributary Interests.
Cargo for First General Aver-
[31)
[38]
age.
[39] -
[40]
when result of expenses.
when result of loss or
damage.
for Second General
Average.
if on hoard when it takes
place.
if not.
[41] Property recovered alter jetti¬
son.
[42] — sacrificed on first General
Average.
English Practice.
Same rule as ship.
Same rule as ship.
Contributes of course.
Does not contribute.
Contributes to all subse¬
quent General Average.
American.
According to Phillips does
not contribute.
Phillips, II. 67, 156.
Expense of recovering and
amount of damage.
Phillips, II. 132.
Contributes on subsequent
General Average.
Phillips, II. 138.
French.
Same as English. B.
Same as English. B.
Same as English. B.
Same as English. B.
Contributes. B.
Does not contribute to fur¬
ther General Average.
Rogron, 425.
[43] Slaves.
[44] Cargo on deck.
Time at which the Value of
the contributary interests
should be fixed.
[45] When the General Average is
the result of loss or damage
to ship or cargo.
When it is the result of ex¬
penses incurred, viz. :—
[46] -
[47]
- when no subsequent
accident occurs.
■ when a subsequent
accident does occur and
the value of property
saved is more than the
amount of General
Average.
Illegal.
Contributes.
Termination of Adventure.
Termination of Adventure.
After the first accident and
previous to the second.
Contribute in Louisiana.
Phillips, II. 148.
Contributes.
Phillips, II. 148.
Illegal. B.
Does not contribute unless
for coasting voyages. B.
Same as English. B.
Termination of adventure.
B.
Termination of adventure.
B.
Same as English. B.
GENERAL AVERAGE.—Contributory Interests.
Contributary Interests.
[48] -
• tlie value of property
finally saved is less.
Pecuniary Values Allowable.
[1] General Average under one
per cent.
Ship's stores or materials
sacrificed.
[2] When replaced on or before
termination of adventure.
English Practice.
The value of the property
finally saved is set off
against the amount, and
the balance distributed
over the estimated values
of the property as if the
accident had not hap¬
pened.
Expense of replacing them
less usual deductions—
one-third new for old on
repairs, (fee.
American.
Expense of repairing less
one-third.
Phillips II. 131.
French.
Same as English. B.
Not allowable.
Bogron, 408.
Same as English. B.
When not replaced until subse¬
quently thereto.
In case of total loss from volun¬
tary stranding.
When the vessel is wrecked be¬
fore they are replaced.
Freight on goods jettisoned.
— when the vessel is not un¬
der charter.
— when under charter.
— and the freight per bill of
lading is less than that
under charter.
— when it is more.
Estimated cost of replac
in g at termination of ad¬
venture if actual cost
exceeds estimate, other¬
wise actual cost.
No contribution.
The amount, they would
probably have realized
had they been on board
when the vessel is wreck¬
ed.
Freight as per bill of lad
ing.
Do.
Do.
do.
do.
Do.
do.
Allowable as per Survey¬
or's estimation. B.
No contribution. B.
No contribution. B.
► Same as English prac¬
tice. M.
Same as English. B,
As per charter party. B.
As per charter party. B.
As per charter party, B.
GENERAL AVERAGE -Values Allowable.
Pecuniary Values Allowable.
[10]
[ii]
Freight when a jettison is fol¬
lowed by subsequent acci¬
dents.
When a vessel is subsequently
wrecked and the cargo is
forwarded by other vessels.
[12] When the goods jettisoned
must have been left behind
if not jettisoned.
[13] When the goods are shipped
in place of those jettisoned
at a port of refuge.
[14] When goods are so shipped
but not to replace jettisoned
goods
English Practice.
The probable freight that
would have been earned
under the bill of lading-
had the jettison not ta
ken place.
Do.
do.
Do.
do.
The net freight so earned
is deducted from that
allowed for jettison.
It is not deducted.
American.
French.
Same as English prac¬
tice. M.
As per charter party if the
ship is under ; for other
cases as per bill of lading.
B.
As above. B.
As above. B.
Same as English, not by
law, but according to
the custom. B.
Same as English. B.
Cargo.
[15] In ordinary cases.
[16] Goods sold to arrive.
[17] When the vessel puts back to
port of shipment.
Jettisoned followed by to¬
tal loss of ship and cargo.
[18] — if it does not save from the
then danger.
[19] — if it does save from ihe
then danger but ship
and cargo are after¬
wards lost.
The market value at port
of destination at the time
it would have been de
livered there less all
charges that would have
been incurred on it if
not jettisoned.
do.
do.
do.
do.
No contribution.
No contribution.
► Same as English prac¬
tice. M.
No contribution.
Phillips II. 94.
No contribution.
Phillips, II. 94.
Same as English. B.
o
Same as English. B.
Same as English. B.
Same as English. B.
Same as English. B.
§
sj
as
>
•-3
t-4
c
t>
ir*
fa
as
fa
SO
ï>
fa
fa
$3
>
Q
fa
fco
- ^r
GENERAL AVERAGE,—Values Allowable.
Pecuniary Values Allowable.
Cargo—
English Practice.
American.
French.
[20] Jettison followed by wreck of
vessel but not of cargo.
[21] Do. of damaged goods.
[22] Do. of goods misdescribed by bill
of lading.
[23] Do. of sound goods wliicb could
not have reached their des¬
tination sound if not jetti¬
soned.
What the goods would
have realized if on board
at time of wreck.
The probable value at port
of destination if deliver¬
ed there.
Their probable net proceeds
at port of destination if
not jettisoned.
Same as English. B.
Probable results at port of Same as English. B.
destination if not jetti¬
soned.
Phillips, II. 130.
Are contributed for at the
value as described in bill
of lading as lower than
real value, and at real
value if described as
higher.
Rogron, 418.
Probable results at port of
destination if not jetti¬
soned.
Phillips, 11. 130-8.
Same as English. B.
Cargo sold to pay expenses
when allowed at all in
general average.
[24]
when sold at a lower price
than they would proba
bly have realized at the
port of destination.
[25]
a
higher
when sold at
price than they would
have probably realized at
port of destination.
[26] When the vessel is subsequent¬
ly lost with her cargo.
[2*7] When the vessel returns home
after jettison of her whole
cargo and the voyage broken
up.
The probable net proceeds
at port of destination.
Net proceeds of the sale after
deducting the freight the
shipowner would have
earned had the goods ar¬
rived but if the deduction
of freight leaves a loss
then to follow rule above.
(Is this legal ?)
The probable net proceeds
at port of destination M.
The probable net proceeds
at port of destination. M.
Question very uncertain.
Would the Captain have
a right to pursue his
voyage with empty ves¬
sel anddemand his freight
and in such case the car¬
go be estimated at port
of destination ?
To be paid at their net pro¬
ceeds at the port where
sold. Phillips, II. 135.
Freight not earned.
Phillips, II. 129.
Cargo valued at invoice
cost.
Phillips, II. 129.
Same as English. B.
M
izl
h
>
m
o
izt
>
tr*
Q
feJ
tzj
feo
»
>>
►>
<
K
50
>
O
fej
to
co
GENEEAL AVEEAGE.
Pecuniary Values Allowable. English Practice.
[28] Loss on cargo by sale to pay ex¬
penses when General Average
and the vessel is lost.
[29] Provisions for Emigrants and Cost of replacing.
Passengers.
[30] — Passengers and Troops. Do. do.
[31] Sailors' and Passengers' effects. Do. do.
[32] Surveyors. j
Values Allowable,
American.
Value of the goods at the
Port where sold.
Phillips, II. 135
French
Value of at port of dis¬
charge.
Rogron, 41Y. 419.
s
Sailors effects are contribu¬
ted for at value at port
of discharge.
Rogron, 41*7, 419.
To be appointed by tribu¬
nals of Commerce in
French ports or if not
any such tribunal, by
justice of the peace. In
foreign parts by French
consul, or in default by
local magistrate. They
are to take oath before
surveying.
Rogron, 411.
international general average.
283
BOTTOMRY BOND.
Principal, ------
Maritime Interest, - - - -
$
Know all Men by these Presents, That I, , now Master
and Commander of the called the , of the burden
of , now lying at the Port of , and bound for
, am held and firmly bound unto , of the city of
, in the penal sum of , lawful money of
the United States of America, to be paid to the said , or to
.... certain attorney or attorneys, executors, administrators or assigns,
for which payment well and truly to be made, I bind myself, my heirs,
executors and administrators, and every one of them, and also the said
vessel, her owners, or whoever may hereafter become her owner or own¬
ers, firmly by these presents. Sealed with my Seal at the City of
this day of , one thousand eight hundred and
fifty
• • • •
Whereas the said .." did recently on a voyage from
to
it was deemed prudent by the above bounden to put into
this port in order that she should undergo certain repairs and receive
supplies to render her sea-worthy, and in a fit condition to pursue her
voyage. And whereas the said Master had not funds for that purpose,
nor could he upon his own personal credit, or that of the owners of the
said vessel, raise and supply the requisite funds therefor. And whereas
in the emergency above stated, he advertised for a loan on Bottomry, and
received from the most liberal propositions for the supply
of the funds indispensable to the said repairs, and the other expenses of
the said in the said Port of ......., who agreed to make
the said advances and take a Bottomry Bond on the said vessel,
at the
284
appendix.
rate or premium of per cent, for the voyage from the Port of
to And whereas the said vessel being now ready for
sea, to leave this Port as soon as wind and weather serve after the exe- '
cution of these presents; the said ha. . accordingly made the
said advances for the purposes aforesaid, amounting to the sum of
which sum is to run at respondentia
on the
at the Bottomry premium of per cent., amounting to the further
sum of the whole of which, exclusive of
the said Bottomry premium, has been necessarily expended in and about
the said repairs, and for the use and benefit of the said vessel, to enable
her to prosecute her voyage. And for the better security of the said
sum and premium, the said Master doth, by these presents, hypothecate
and assign over to the said heirs, executors, administrators
and assigns, the said
And it is hereby declared that the said
is thus hypothecated and assigned over for the security of the money so
borrowed and taken up'as aforesaid, and shall be consigned to the assig¬
nee of this Bond, to be by ... % held until the said sum of
together with the Bottomry premium of amounting to
gether to the sum of , be justly, duly and fully paid,
according to the condition following, and shall be delivered for no other
use or purpose whatever.
Now the Condition of this obligation is such, that if the above boun-
den shall well and truly pay, or cause to be paid, unto the
said certain attorney, executors, administrators and assigns,
the just and full sum of , being the sum borrowed,
and also the premium aforesaid, at or before the expiration of five days
after the arrival of the said vessel at her anchorage in the Port of
or in case of loss of the said , such an average
as shall by custom become due on the salvage, then this obligation and
the said hypothecation to be void and of no effect.
\
If \ however, the said amount, together with the premium, is not paid
within five days, as above specified, then this obligation and hypotheca
tion is to remain in full force and virtue, and an additional premium of
ten per cent, on the above amount advanced is to be charged and paid
international general average,
285
by the above bounden, and tbe assignee hereof is hereby empowered
and authorized to dispose of the said vessel,
at Public
Auction, or otherwise, to liquidate and defray the amount of this obliga¬
tion, and also all charges, costs and interest, ruling at the Port at which
this obligation is made payable, and refund to the owners, or their rm
presentatives, any surplus.
Under no circumstances shall any subsequent indebtedness of the said
vessel or her owners in any way affect or cancel the efficiency of this
Bond.
Having signed and executed three Bonds all of the same tenor and
date, one of which being accomplished, the others to be void and of no
effect.
Witness my hand and seal at , the day and year above
written.
' Sealed and delivered in the presence of
Note.—The essential prerequisites to the validity of a bottomry bond
given by the master are, 1st—That it is given in the absence of the ship¬
owner, and at such a distance from his residence, and under such circum¬
stances, as that he cannot be consulted in regard to it without injurious
delay. La Ysabel, 1 Dod. 273 ; The Trident, 1 W. Bob. 29 ; Patten &
Dickson v. The Randolph, Gilpin 457. 2d—That the money, repairs or
suppliés for which the bond is given are necessary—meaning thereby, rea¬
sonably fit and proper under the actual circumstances—or, at least, shall
appear to the lender upon due inquiry to be necessary—to enable the ship
to complete the voyage. The Ship Fortitude, 3 Sum. 228 ; The Prince of
Saxe Coburg, 3 Moore P. G. R. 1 ; The Gratitudine, 3 C. Rob. 240 ; The
Aurora, 1 Wheat. 96. 3d—That the money, repairs or supplies for
which the bond is given, is advanced, or are made or furnished, on the
credit of the ship, and, that it does not appear to the lender, on due aud
reasonable inquiry, that the money or repairs or supplies can be had on
personal credit. Heathorn v. Darling, 1 Moore P. C. R. 5 ; The Saxe
Coburg, The Randolph, supra. If the advances or repairs were neces¬
sary, it belongs to the owner to show that they could be procured on
personal credit. The Virgin, 8 Peters 538. 4th—That the principal
and interest put by the bond at the risk of the voyage, i. e., that the pay¬
ment of the money shall be made by the bond to depend upon the safe
286
APPENDIX,
arrival of the ship at the end of the voyage upon which the money is
loaned. The Emancipation, 1 W. Rob. 125; The Atlas, 2 Hagg. 65;
Stainbank v. Shepard, 20 Eng. L, & Eq. 547.
A bottomry bond given by the master after the advances had all been
made, is valid, provided that they were made with an understanding
that such a bond would be given. The Virgin, 8 Peters 538. But if
the advance was originally made on personal credit, the bond is invalid.
The Trident, 1 W. Rob. 34; The Augusta, 1 Dod. 283; The Hunter,
Ware 249. In a suit on a bottomry bond given by the master, the li¬
bellant must prove by evidence, other than the bond itself, that the
money was lent, or the repairs made, and materials furnished, to the
amount claimed ; and that they were necessary to enable the vessel to
perform the voyage, or for her satety. He must also exhibit an account
of the items advanced,, with sufficient proof to support them, to enable
the court to judge of their necessity. The Brig Bridgewater, 1 Olcott
R. 35. The bond may be good for part of the items embraced in the
account for which it is given, and bad for the residue. The Augusta, 1
Dod. 383; Turnis v. Brig Magoun, 1 Olcott R. 55; The Brig Bridgewa¬
ter, id. 35.
Bills of exchange may be drawn on account of the supply, and a
bottomry bond given at the same time as a collateral security, in this
sense, that if the bills of exchange are honored (that is, accepted and *
paid, if they require acceptance, or paid if they do not, as the case may
be) the bottomry bond is discharged, and though the ship arrive, the
maritime interest is not payable ; if dishonored, the amount is payable
on arrival, by means of the remedy against the ship, and in that case
with maritime interest. Stainbank v. Shepard, 20 Eng. L. & Eq, 547 ;
The St. Catherine, 3 Hagg. 250 ; The Atlas, id. 43 ; The Emancipation,
1 W. Rob, 124 ; The Hunter, Ware 249.
The borrower on a bottomry bond is discharged of the payment only
in the case of an actual loss occasioned by the perils the lender assumes;
and the insurer on a bottomry interest is liable only in the case of an
actual total loss occasioned by the same perils. Joyce v. Williamson, 3
Doug. 164; Thompson v. The Royal Ex. Ass. Co., 1 Maule & Selwyn
• 0 ; Pope v. Nickerson, 3 Story 465 ; 2 Arnould, § 392. In case of a
deviation from the voyage or a voluntary abandonment of it, after it
had been commenced, the bond becomes absolute and payable. The
Dante, 2 W. Rob. 427 ; Pope v. Nickerson, supra.
AMERICAN SHIPMASTERS' ASSOCIATION.
Offfices, No. 51 Wall Street, New York.—Rooms 23 and 25.
" The American Shipmasters1 Association has been organized with a
view to elevate the moral character and professional capacity of seamen,
by the encouragement of worthy and well-qualified officers, and to pro¬
mote the security ol life and property at sea."
In Great Britain, and other foreign countries, it has long been the
practice to examine shipmasters and mates ; and for years it has been
apparent that such an institution was necessary for the more perfect
protection of interests connected with the merchant marine in this
country.
Not only is the whole property of the vessel, her cargo, and her earn¬
ings within the master's power, and its safety dependent upon his hones¬
ty, his prudence, and energy, but the very lives of the crew and passen¬
gers, hang as it were on the master's experience and watchfulness.
Unforeseen perils and vicissitudes lie naturally in the path of the mas¬
ter, and therefore to him are committed great discretionary powers. He
is, from necessity, often made the agent for the care and disposal of pro¬
perty in distant parts, uncontrolled by those checks and safeguards which
usually surround agents. Cases are always arising in which he must
act promptly for the good of all concerned, and that too, without the aid
of precedents to guide his decision.
By the general rule of the maritime law, the owners of a vessel are
liable for all injuries caused by the misconduct, negligence, or unslcilful¬
ness of the master, provided the act done be within the scope of his au¬
thority a,Si master.
The owner is bound, in order that his ship may be seaworthy, to put a
master in command of her who is fully competent in respect of skill,
care and honesty ; and the master is bound to all whose interests are
under his charge, as owners of the ship, or goods, or as insurers of ship?
goods, or freight, to use proper care and skill, and entire integrity in the
protection and preservation of their interests.
288
APPENDIX.
As the duties of a master are various, so is the performance of them
arduous, and no member of society is worthy of greater respect than the
accomplished ship-master.
To the lawyer, we entrust the safety of our property ; to the physician,
life and limb ; but the ship-master has charge of all these (whether for
himself, his owners, underwriters or passengers), liable to sudden and
critical dangers, to be met at once and averted by his nerve and judg¬
ment.
Not only do ship-owners and merchants, find it their interest to co¬
operate earnestly with this society ; but it meets with cordial support
from ship-masters as a class.
The college graduate is justly proud of his diploma—the honest sea¬
man should feel greater pride in the possession of a certificate of compe¬
tency to assume responsibilities which call for the highest qualifications
with which man is gifted. It is also a current recommendation of his
efficiency and skill, all over the world.
Under the direction of a council of experienced ship masters and ship¬
owners, certificates are issued to worthy and competent persons for such
offices as they may be qualified to fill with credit in the mercantile ma¬
rine service.
f
Merchants and ship-owners, paying ten dollars annual fee, are entitled
to participate in the privileges of the association, in accordance with the
rules thereof. 4
Suitable rooms are provided, called "The Ship-master's Rooms,"
where the officers attend for the necessary duties of the association.
These rooms are supplied with newspapers, books, and records relating
to marine and commercial intelligence.
Subscribers to the association, ship masters, and officers holding its
certificates, have free admission to the rooms, with the privilege of intro¬
ducing masters and mates of foreign vessels in port, or strangers tempo¬
rarily visiting New York.
Printed monthly reports of officers in good standing and holding cer¬
tificates of the association, are furnished to the members. •. r
In order to secure the contemplated object of the association by placing
proper persons in commission, to each certificate issued is reserved the
right of revocation.
Applications for certificates may be made at the rooms of the asso¬
ciation.
The American Shipmasters' Association has recently been chartered
by the Legislature, and its powers largely extended.
AMERICAN SHIPMASTERS' ASSOCIATION.
289
COUNCIL.
CAPT. CHARLES H. MARSHALL. Capt. EZRA NYE. CAPT. E. E. MORGAN.
CAPT. RORT. L. TAYLOR. CAPT. WILLIAM. C. THOMPSON.
JOHN D. JONES, (ex-officio).
* /*.
OFFICERS.
JOHN D. JONES, President. DANIEL DBAKE SMITH, Treasurer.
Capt. I. H. UPTON, Secretary
B; A. SHELDON, A. M., Examiner in Nautical Science.
Capt. WM W. STOEY, Examiner in Seamanship.
Subscribers and others entitled to the privileges of the Association for
the year ending June 3 Oth, 1862.
A. A. Low & Co,
CorneliusComstock & Co,
D. Colden Murray,
Goodhue & Co,
Handy & Hoadley,
Moses Taylor,
Eobert L. Taylor,
Tucker, Cooper & Co,
Wm. Nelson & Sons,
A. Bell & Sons,
Charles Carow,
E. D. Morgan,
G. A. Ferris & Co,
Jones & Whitlock,
Maitland, Phelps & Co,
Spofford & Tileston, ,
Van Brunt & Slaight,
Wm H. Allen,
Aug. Whitlock,
Corning, Bento & Co.,
E. Ctinai d,
Grinnell, Minturn & Co.,
Jonas Smith,
Nesmith & Sons,
Snow & Burgess,
Wakeman, Dimon&Co.,
William Whitlock, Jr.,
Aymar & Co.,
Chas. H. Marshall & Co.,
E. E. Morgan & Wiley,
Geo. B. Deforest & Co.,
Johnson & Lowden,
N. L. & G. Griswold,
Samuel Thompson à Nephews,
Williams &
19
Wm. C Pickersgill,
Wm T. Coleman & Co.,
Barclay & 1 ivingston,
Crocker & Wairen,
Ezra Nye,
Howland & Aspinwall,
J. Atkins & Co.,
Olyphant & Sons,
Sturges, Cleaiman & Co.,
W. W. Deforest & Co.,
Yates & Porterfield,
Bovd & Hineken,
Chastelain, Ponvert & Co.,
F H. Whitmore,
Howland & Frothingham,
J H Brower & Co ,
Peter V. King & Co.,
Sutton & Co.,
Walsh, Carver & Chase,
Barstow & Pope,
Dunham & Dimon,
F. A. Delano,
H D. Brookman & Co.,
Joseph Foulke & Sons,
Ealph Post,
Slate & Co.,
Wm T. Frost & Co.,
Cornelius Grinnell,
D. & A. Kingsland & Sutton,
Gordon, Talbot & Co.,
H W Johnson,
Joseph F. Joy,
E. P. Buck & Co ,
Trask & Dearborn,
Guion,
290
APPENDIX,
List of Approved Shipmasters and Mates who have received Certifi¬
cates of the American Shipmasters'' Association, with the number of each
Certificate.
In no case will a number be changed or used a second time, so that the number will always in¬
dicate the name of the holder of the Certificate. These numbers may be used as signals at sea
with great facility, and for this purpose holders of Certificates may procure copies of this List on
application to the Secretary.
1 Capt. Isaiah Pratt,
2 " Henry R. Hovey,
3 u George E. Welch,
4 u James R. Malcom,
5 '1 Robert E. Lyttle,
6 1st Mate George Taylor,
7 Capt. William Smith,
8 Mate John Piclgeon,
9 Capt. Wm. D. Urann,
10 " Thos. W. Wilson,
11 " Benj. I). Manton,
12 11 James Durie,
13 " Rufus G. F. Candage,
14 u Jonas S. Higbee,
15 u William Knapp,
16 " Geo. W. Browne,
17 Mate J. L. Winton,
18 Capt. Jno. Geo. Dorry,
19 " Thomas Maroni,
20 11 Geo. W.Ward,
21 11 Thomas G. Hallock,
22 " Reub. F." Harford,
23 " Wm. E. Welch,
24 " Alex. Scudder,
25 " Lemuel Gage,
26 v " Henry L Sturges,
27 " John West,
28 " Levin Lawrence,
29 u Charles Clark,
30 £< Thomas Leach,
31 u Joseph B. Jordan,
33 u Feidinand Crocker,
34 u Luke B. Chase,
35 " William Jones,
36 11 Edmund B Mallett.
38 " Allen Baxter,
39 " Bradford S. Norris,
40 " Josiah Morgan Lord,
41 11 Thomas E. Smith,
42 Mate Donald S. Mack ay,
43 Capt. Thaddeus Brown,
44 " Geo. A. Scales,
45 11 Antli. S. Megathlin,
46 Mate Wm. E. Bridges,
47 Capt. Laust E. Degn,
48 " John H. Stirling,
49 " James H. Buxton,
51 '1 Henry Babcock,
52 " William Hunt,
53 u Jerome B. Rogers,
54 " Josiah Pierson,
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
94
95
96
98
99
100
101
102
103
104
105
108
110
Capt. Wm. J..Axworthy,
Alex. Murray Smith,
Milford Rogers,
Chas. F. W Behm,
Geo. R Schenck,
Nicholas Kirby,
Silas P. M^itin, 1
Henry E. Williams,
Isaac D. Seyburn,
William M. Blye,
Sam. A Swinnerton,
Jas. Walt. Conner,
John Johnston,
Wash. Godfrey,
Thos. G. Young,
William D. Clifford,
Henry B. Horton,
David P. Heath,
William Wright,
Charles S. May,
Mate Arth. J. Hider,
Capt. William Brooks,
Lyman Wells,
Jabez Pratt,
Geo. A. Trundy,
William Allen,
Henry Dennison,
Mil'r H. Johnson,
PI'y L. Howland,
Robert Dockendorff,
Geo A. Dearborn,
John Caleb,
Chas. C. Sisson,
James H. Rogers,
James'dC Young,
John E. Williams,
Richard Olmsted,
Orlando Bassett,
William M. Post,
John C. Whittelsey,
William H Russell,
Thomas Edwards,
Thomas F. Freeman,
Francis P Allen,
Fred. J. Gover,
John E. Wells,
John M. Boyson,
Mercator Cooper,
James M. Green,
John Robert De war,
Richard H. Ellis,
11
it
u
t i
a
n
n
a
i i
11
( i
a
a
11
a
a
i i
11
a
i i
a
a
i (
11
11
11
i (
11
11
i i
11
a
11
11
11
11
11
11
11
11
< i
n
11
a
11
11
Ill
112
113
114
115
116
117
118
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139
140
141
142
143
144
145
148
149
151
152
153
154
156
157
158
159
160
161
162
163
164
165
166
168
169
170
171
172
173
174
175
176
AMERICAN" SHIPMASTERS' ASSOCIATION
291
< i
i (
« i
11
i i
Capt. Henry F. Coffin,
Rowland F. Coffin,
Joshua P. Boutelle,
George C. Stouffer,
Gideon G. Stinson,
Alb't Webster Lavender,
Mate Jesse Ward,
Capt. Edward P. Johnson,
Herm'n Lowenstein,
Ezra Lee Robbins,
Jno. D. Ingraham,
Sylv'r Mattison,
Orrin Sellew,
Samuel Cobb,
David Jackson,
John J. Rogers.
Wm. H. Parsons,
Henry W. Washburn,
Richard Harlow,
George Moore,
David G. Cole,
John R. Hurlburt,
John H. Avery,
Wm. C. Staples,
Lewis W. Pennington,
John Towart,
Francis Patterson,
Barnabas Sherman,
Sam. Webb Mather,**
William Hanson,
John H. Shoppy,
William G. Jones,
Chas. H. Baldwin,
Charles Woodward,
William H. Riley,
Byron G. Pettingill,
John P. Jones,
Horatio Day,
Charles Hutchinson,
Ciippin Chapman,
David K. Welden,
Edward E. Vai.ll,
James A. Hoffses,
Wm H. Morey,
Thomas Dixon,
Nathan F. Larrabee,
Hale Knight,
Ebenezer E Graves,
Charles Mills,
Charles W Baitlett,
Bethuel G. Handy,
Joshua H Dill,
Thomas Hughes,
Mate Leopold Beyersdorff,
Capt. Peter E. Rowland,
Mate Daniel D. Parsons,
Capt. Geoige A. Bailey,
Welcome Gilkey,
Edwaid C. Woodward,
Gideon T. Emery,
*Deceased.
11
a
a
177
178
179
180
181
182
183
184
185
186
187
188
189
191
193
194
195
196
197
198
199
200
201
202
203
205
206
207
208
209
210
212
213
214
215
216
217
218
219
220
222
223
224
225
226
227
232
233
234
236
237
238
239
240
241
243
246
247
248
249
Capt.
Mate
Capt.
John R. Dickenson,
James H. Chamberlain,
Samuel Loveland,
Marshall M. Wells,
James W. Yates,
Enoch Wood Peabody,
John P. Sundberg,
Colin C. Campbell,
Stephen Whitman,
Charles Folsom,
Joshua Couillard,
William Cushing,
James W. Lindsley,
Charles H. Frisbie,
William L. Brown,
Ezra B. Fieeman,
Frederick Gorham,
John L. Bryant,
John Anderson,
Abraham N. Gould,
William S. Frost,
Leonard W. Horton,
John N. Giet,
William Brand,
William K. Bradisli,
John C. Almy, Jr.,
Sydney Ashby,
John Pennington,
Warren Ray,
Henry L. Townsend,....
Ambrose Child,
James S. Rogers,
Joseph W. Lawrence,
Jos. G. Woodside,
Phineas P. Carver,
Benjamin H. Smith,
William B. Hutcliings,
William Lester,
William A Jones,
Isaac Sofield,
James Crocker,
Robert B Smith,
John Porter,
Warren Downey,
Joseph T. Soule,
James J. Plumphreys,
Theodore A Jones,
Charles G. Baker,
James M Jenkins,
Daniel H. Truman,
Herbert M. Hay den,
Anthony Thacher,
Seth Doane,
Alfred Doane,
David Forbes,
Ed ward W hi tehurst,
John P. Roberts,
Charles Morteu,
Isaac Dixon,
Geo. Dewhurst,
292 ÀPPkNMk.
250
Capt. Freeman Crosby,
" Isaiah Foui nier,
322
252
323
255
( t
Benj. Atkins,
824
256
< i
James B. Bell,
Wm. M. Terry,
326
257
< <
328
258
< i
John A Darling,
329
260
i i
Edward Hawkins,
330
262
i i
Charles Peteison,
831
263
u
Wm. C Ross,
332
264
11
Isaac B. Pinkham,
ooo
OOO
265
i l
demerit P. Jaynfe,
334
266
a
Wm. R. Gardner,
335
267
i i
Charles Scandella,
337
268
i <
Michael Conklin, #
339
269
< i
Henry L Hepburn,
Simeon S. Hawkins,
340
270
i <
341
271
i (
Wm. McGloin,
342
272
11
Fred B. Langston,
343
273
i i
Charles D Sames,
344
275
n
John Landeikin,
345
276
a
Fredeiick G. Lotlirop,
346
277
i i
John A Risley,
347
279
( c
Henry F. -Salter,
348
280
il
Chas. H. Townsend,
349
281
il
Stephen M. Warren,
350
282
i i
Kiel P Schibye,
351
283
11
Theodore Perry,
Loi in H Botsford,
352
285
i i
353
286
i l
Chas A. Pendleton,
355
288
i i
Knut Favorin,
857
289
i l
John F Nick les,
358
290
i l
Samuel G. Fairchild,
359
291
i l
John Scott,
860
292
11
Aug. C Pettingill,
361
293
11
Samuel H Sugett,
364
294
11
Anthony Chase,
365
295
11
Hem y Bessling,
366
296
i l
Alfred B. Lowber,
368
297
James H Parker,
369
298
l i
Wm W Mon is,
370
299
11
Frederick W Thiane,
371
300
i l
Hemy W. Gieen,
Thomas D Davis,
372
301
l i
373
302
il
John E. Harmon,
374
303
11
John J. Regean,
375
304
11
James Chase,
377
305
l i
James Bryant,
378
307
11
Meiit R. Greène,
Robert R Diummond
379
308
i l
380
310
l i
Wm P. Gibbs,
381
311
i i
Christopher W. Lloycl,
382
312
Mate Hem y E. Asm us,
383
313
Capt Albert Zeiega,
384
314
i i
1 aniel F. Caulkins,
385
315
11
AithurC Ben y,
886
316
a
Albeit W. Shaw,
387
317
i i
Edmund W. Holmes,
388
318
11
Geoige R. Nickeison,
389
319
t (
JeiomeB Hildreth,
390
320
i <
George W Crowell,
391
321
11
Philip Bennett,
392
Capt. Charles H. Corset,
" Hoiaee B. Soule,
" Ellsworth A. Luce,
" Fied A. G. Bacon,
" Edward R. Warsaw,
" Andrew J. Pettengill,
" Chauncey T. Botsford,
" Sam. P. Fatten,
11 John Stirling,
" Jacob Miller,
11 Thos. H. Morton,
" Joseph FI. Arnold,
" Richard Beaston,
u Joseph L. Denison.
11 John S Ingraham,
u Clark Delano,
u Samuel T Donnell,
" Wm L. Flitner,
" Joseph A. Wallace,
" George B. Almy.
u Chas. H. Mathews,
" Théo 'B. Du Bois,
" James C Staffoid,
" Albert G Jones,
'' Lewis P. Cook,
" William D. Gregory,
u Charles Wyman,
11 Artemus W. Watts,
" Sam. S. Thomas,
u James C. Blizzard,
" Isaac K Henderson.
" Gerardus H. Schreuder,
11 Wm W Urquhart,
" Daniel. M. Mai shall,
11 Samuel Kennedy,
" George H Stevens,
" William Freeman, Jr.,
" Henry S. Ray,
" Selden C Warner,
" Edward A. Teirell,
" David Giant,
" Wm C. Rogers,
' ' Barzillai Sears,
" David Bartlett,
" Benj A. Folansbee,
" Frank P. Shannon,
" Robert Harding,
" Jas A Tyson,
" Wm. H Chambers,
Mate Fiank H. Beers,
Capt. Wilson Me Near,
" Reuben Merrill,
" Chas. S. Warren,
u Abraham Çimmons,
" Abial McFarland,
" Sebastian Ellis,
" Mark S Chase,
u Fredeiick W. Spencer,
" George Hagar,
" Lewis W. Gil ley,
" Simon W. Cooper,
AMERICAN SHIPMASTERS5 ASSOCIATION*
293
393
Capt. John R. Atkins,
461
394
< i
Kendall Buxton,
462
396
( i
Edward Johnston,
463
397
l c
James S. Dillingham, Jr.,
465
398
I I
Alexander Waugh,
466
399
i I
Benj. F. Noyes,
467
400
11
John Halsey,
468
401
I I
Samuel C. Magna,
470
402
1I
For man D. Rogers,
471
404
u
Joseph Biereton,
475
405
Mate James N Yanboskirk,
476
406
Capt. George Patterson,
477
407
( ;
John M. Gillespie,
478
408
{i
Francis Jackson,
479
409
u
Charles Swendsen,
481
410
Mate David M. Hawthorne,
482
411
Capt. William F. G. Ellis,
483
412
i i
William Chatfield,
484
413
i i
John P. Wyatt,
485
414
i i
William Stinson,
486
#5
i i
Cornelius C. Ellis,
487
416
a
Charles C. Packer,
488
417
i i
Fessenden Chase,
489
418
i (
William B Hilton,
490
419 ,
i i
Ebenezer Burgess,
491
420
a
Robert K Robinson,
492
421
* i
Robert G. Watts,
493
422
i i
Robert R Snow,
494
423
11
EdwaidK. Mooney,
495
425
t i
John Bahrs,
496
426
i i
James H Kelleran,
497
427
i i
Miles S. Gates,
498
428
11
William G. Shapley,
499
429
i *
Austin Williams,
500
430
< i
Joseph H. Stetson,
501
431
11
Henry R. Otis,
502
432
i i
Joseph E Stannard,
503
433
L I
Samuel P. Crafts,
504
434
i i
William Powell,
505
435
i I
Crosby B Smith,
506
436
Mate Aaron H. Storrs, •
507
437
Capt. Charles H. Barrett,
508
439
i i
Egbert T. Sewall,
509
440
a
Thomas S. Ellis,
510
441
i i
Henry W. Lunt,
511
443
i i
Hudson B. Merryman,
512
444
t i
Alfred H. Merryman,
513
445
i (
Elisha F Sears
514
447
11
Andrew J. Brower,
515
448
« <
George N. Samson,
517
449
( t
Frederick Sherwood,
518
450
u
Charles F Hoyer,
519
451
i i
William Munroe,
521
452
i 4
William P. Sigsbee,
522
453
i I
Robert L. Walton,
523
454
i I
John Codman,
524
455
I I
Henry E. Harding,
525
456
il
William A. Barnaby,
526
457
i I
Ryland Upton,
527
458
Mate Israel S. Bunce,
528
459
Capt. Fred. R. Meyer,
529
Capt. James D. Keith,
44 John B. Bowditch,
44 Ebenezer M. Lawry,
44 Charles Knowles,
44 Sam. Easterbrook,
" William J. Perkins,
44 Joseph Small,
44 Lorenzo S. Pike,
44 Frank B. Melcher,
44 Harvey Mills,
4 4 Sheldon E. Hubbard,
Mate William P. Mason,
Capt. James H. Creevy,
4 4 Charles G. Crocker,
Mate William Henry,
Capt. Charles Post,
44 John S. Taylor,
44 Francis J. Brenton,
44 John W. Bennett,
" Elijah Ross,
44 JohnL. Kilby,
44 William A. Thompson,
44 John G. Wilson,
44 William Martin,
44 William J. Stafford,
44 John H. Child,
Mate Julius W. Son tag,
Capt. William H. Anderson,
44 Frank S. Swan ton,
4 4 Thomas Shaw,
44 George W S. Grueber,
44 William D. Tucker,
44 John B. Childs,
44 Thomas W Peel,
44 Peter H. Whiteberry,
44 Jeremiah Hooper,
44 John F. French,
44 John S. Crowell,
44 Elnathan P. Hatheway,
44 Samuel H. G. Prentiss,
44 Frederick Oliver,
44 Daniel Tripp,
44 Theophilus Bassett,
4 4 Henry Applegit,
44 John C. Dutch,
44 James Lawler,
44 James P. Thomson,
44 Willard 0. Brown,
44 William J. Rogers,
44! William Symonds,
44 Orsmus 0 Lara way,
44 John Curtis,
44 James T. Maloney,
44 Joseph J. Child,
44 John C.Bush,
44 John F. Marschalk,
44 Hugh Morrison,
, 44 Charles Collins,
44 Amasa M. Loveland,
44 Horatio Nelson,
44 Jeremiah N. Sawyer,
294 APPENDIX.
531
Capt. Job Potter,
596
532
i i
George E. Hawkins,
597
533
a'
Edward Abeel,
598
535
11
Robert Giveen,
599
536
11
Benjamin Jones,
600
337
Mate Nicholas S. Dixon,
601
538
Capt. Samuel R. Curwen,
602
539
4 4
William G. Allen,
603
540
4 4
Francis J. Chase,
604
541
4 4
Charles E Coffin,
605
542
4 4
Benj J H Trask,
606
543
4 4
Gustavus D. S. Trask,
607
545
4 4
Albert P. Foster,
608
546
4 4
Augustus F Savin,
609
547
4 4
George Waite,
610
548
4 4
Abraham E. Christian,
611
549
4 4
John P. Wilkinson,
612
550
4 4
Richard H. Moore,
613
551
4 4
William S. Johnson,
614
552
4 4
William R Irving,
615
553
4 4
Daniel S. Rogers,
Ezekiel D. Percy,
616
554
4 4
620
555
4 4
Joseph G Lewis,
621
556
4 4
John J. N. Webber,
622
557
4 4
Wilder F. Cooper,
623
558
4 4
Peter C. Mocklier,
624
560
4 4
Dunbar Henderson,
625
561
4 4
Jacob G. Pieice.
626
562
4 4
Richard Wilkinson,
627
563
4 4
George F. Church,
628
564
4 4
Wm. J Van Namee,
629
565
4 4
Tyler Parsons,
630
566
4 4
Calvin G. Worth,
631
567
4 4
Amos C Pung,
632
568
Mate John I Morris,
633
569
Capt. Richard Luce,
634
570
4 4
William G. Furber,
637
572
4 4
Samuel L Spencer,
638
573
4 4
George W Gorham,
639
574
4 4
David A Bogert,
640
575
4 4
Elias H. Birdsall,
641
576
4 4
Samuel Samuels,
642
577
4 4
George G. Gilbert,
643
678
4 4
Ephiaim Pray,
644
579
44
Isaac Carver,
645
580
4 4
Jeremiah Chad wick,
646
581
4 4
Stephen D. Joy,
647
582
4 4
Henry H McLane,
648
583
4 4
George W AVatson,
649
584
4 4
Abraham PI. AVood,
651
585
4 4
Robert Cunningham,
653
686
4 4
John J. Rogers,
654
587
4 4
Frank M Stinson,
655
588
4 4
Benjamin D. Hurd,
656
589
4 4
Henry Clay Woodward,
657
590
4 4
Hugh H. Savage,
658
591
Mate Rufus H. Butterfield,
659
592
Capt. Wm. E Phillips, *
660
593
4 4
Erwin A. Hussey,
661
594
4 4
* George S. Hill,
662
595
4 4
George Bellows,
663
Capt. Moses Ployt,
" George S. Keller,
u Charles A. Ranlett,
11 Charles A. Kanlett, Jr.,
" Latham A. Biown,
u James Stewart,
" Orington Linekin,
u Eli Perry,
" John A White,
" George Sumner,
u Samuel Macocluck,
" William P. Rogers,
Mate Charles E. Jack,
Capt Thos J. Forrest,
11 Hosmer B. Parmelee,
11 James Funck,
" Christian G Dill,
' ' Samuel Asldns,
u Edward Kohinson,
u George Duncan,
Mate Daniel Clark,
Capt. Harrison Nickerson,
Mate Alex. M Heartt,
Capt. Josiah Newcomb,
' ' Sainte Ci oix Redman,
11 George Conwey,
" Diediich Sanneman,
" John 0 Roney,
" George N Hood,
u John N, Brown,
" Ashman J Clough,
u Edwaid Young,
" William R Bell,
Mate William J Armstrong,
Capt. Cornelius W. Millekin,
" Christopher Crowell,
" William Coldrey,
" Rufus Lodg,
" Theodore Gulbrandson,
Mate Samuel Young,
Capt. Miner Tu thill,
" Wi 11 iam Moi gan,
" Edward Funk,
4 ' Alexander R Barkei,
" Ray S. Clarke,
" William A Maine,
" Alden B Eldridge,
" Edwin G Doyle,
11 James Ainsworth,
" Edward R. Fairbanks,
" William T Johns,
11 George Smith,'
" Rich. Calvin Williams,
" Shadrach Small, Jr.,
" George I. Murray,
" Gamaliel Thomas,
" Lemuel Curtis,
" William Grant,
" George F. Tuthill,
Mate James N Davis,
Capt. Alexander M. Douglass,
AMERICAN SHIPMASTERS' ASSOCIATION.
295
664 Capt. Malaga Smith,
666 Mate Calvin G. Howes,
667 Capt. George I. Sutton,
668 44 John Chadwiek,
669 44 Nathan P. Dutton,
670 " Geo. N. Sloeum,
671 " Amaziah R. Conary,
672 44 Morris Osborn,
678 44 Henry C. Dearborn,
677 u Geo. Hawkins,
678 44 Abm. B. Pierson,
682 44 Charles A. Bartlett,
683 44 Geo. W. Brown,
684 44 Henry D. Driver,
685 44 Jos. M. Hume,
686 44 Geo. W. Nowell,
687 u Freeman F. Pe roi val,
688 44 Edwaid McCleave,
689 44 RobeitJack,
690 44 Moses Lyons,
692 44 Ru fus G. Dearborn,
693 Mate Duncan MeArthur.
694 Capt Gilbert A. Knudson,
695 " Edward Cole,
696 44 William Newhall, Jr.,
697 44 John Ketchum,
698 " John F. Underbill,
699 44 Harmon C. Orr,
700 44 Thomas L Masson,
702 44 Wm H. Fui foi d,
703 44 Benj. T. Glover,
705 44 John Thompson,
708 44 Jas. Ed Cole,
709 44 Samuel H Dollard,
710 44 Geo. H. Leinas,
711 44 Atkins R. Nickerson,
712 44 Wm Snow,
713 44 Alfred Hulse,
714 44 Wm. J. Todd,
715 44 Louis T. Biadburn,
716 44 1 Meltiah Jordan, Jr.,
717 44 Benj F. Jayne,
718 44 Harrison O. Gray,
719 44 Wm. M Otis,
720 44 Albert C. Otis,
721 44 John Boyd,
722 44 Galcn 0 Norton,
723 44 George M. Hooper,
724 44 Oliver L. Bearse,
725 Mate George Blanchard,
726 Capt Edwaid Moses,
727 44 David Thompson,
728 44 Walter Chadwiek,
730 44 Heman Smith,
731 44 Bartlett S Mayo,
732 44 Gordon G. Berry,
733 44 Henry Whiting, Jr.,
734 Mate John J. McVeity,
735 Capt. Chas. A. Enell,
736 44 Wm. M Swasey,
737 u Christopher Collier,
738 Capt. Ira T. Horton,
739 " Bradly S. Smith,
740 " Horatio Howes,
741 11 Colman Kelly,
742 li John Arnold,
743 (i- George A. Hopley,
744 " James F. Cleveland,
745 11 Edward W. Munday,
746 " Benjamin F. Pickins,
747 " Dexter Collamore,
748 11 Geo. H. Avery,
749 " Wm. P. Jones,
750 11 Ephraim G. Harriman,
751 Shephard J. Hulse,
752 Mate Benjamin F. Watlington,
753 Capt. DaniePQuig,
754 " Edward P Percival,
755 Mate Wm. S Pearson,
756 Capt. Geo. W. Brewster,
757 li Edwin Ross,
758 " David Burt,
759 li Warren Luce,
760 11 George Taylor,
761 " Isaac C Daggett,
762 " Charles Browne,
764 u Eugene F. Price,
765 11 Daniel C. Wooster,
766 Mate John Ross,
767 Capt. Horace W. Pierce,
769 " Henry M. Merrill,
770 u Leonard D. Biown,
771 " Thomas Butler,
772 u Joseph S Biewster,
773 11 Thomas Stevens,
774 u Molliam Monk,
775 " William Abbot,
776 " Nicholas Tucker,
777 " Atkins S. Cates,
778 " Ira Nash,
779 il Franklin Baxter,
780 " Charles A. Coombs,
781 11 Edmund Hammond,
782 u Jesse F. Hosiner,
783 4t Frederick W. Kline,
784 u William Smith,
785 44 William Brown,
786 44 William Flye,
78 8 44 Noyes R. Denison,-
789 44 Theodore Zerega,
790 44 Ira B. Davis,
791 44 Nathaniel C. Hauls,
792 44 Maurice Digard,
793 44 John K. Nickerson,
794 Mate Geo. E. Nelson,
795 Capt. Samuel K Leach,
796 44 Daniel W. Collum,
7 9 8 44 James T. Underhill,
80 0 44 Fred'k B. Noithup,
801 44 Wm. F. Townsencl,
80 2 44 Abraham Jansen,
803 44 Frank H. Cooper,
296 APPENDIX.
804
Capt. Samuel H. Rowley,
877
805
' *
Jason D. Leighton,
878
806
i t
Frank B. Ames,
James G. Carr,
879
807
a
880
8U8
i I
Nicholas R. Brewer,
881
809
( c
William Shepherd,
882
811
I i
David Lines,
883
812
I I
William H. Nelson,
884
813
II
William H. Lunt,
885
815
II
Charles H. Rhoades,
886
816
I {
John Collins,
887
817
i i
Piesbury N. May hew,
888
818
II
William Williams,
889
820
( (
Nathan F Rogers,
890
822
i i
Thomas. King,
892
823
I I
Chas. W McLoon,
893
824
11
Nelson Crowell,
894
826
l i
Colin R. Williams,
895
827
< <
Joseph W. Congdon,
896
828
I i
Samuel Lee,
897
829
I i
William R. Hathaway,
898
831
i t
Benjamin C. Gould,
899
832
( c
David H. Hall,
900
834
I (
John C. Wells,
901
836
il
Jos G, White,
902
837
11
Jonathan L Sears,
903
838
i I
Nathan M. Russell,
905
840
i i
John M. Cavarly,
906
841
11
Ezia S. Anderson,
907
842
11
Hiram F. Sparrow,
908
843
11
Simeon Pepper,
910
844
11
Fied. M. Lambert,
911
845
i i
Wm. W. Fowler,
912
846
11
Plenry L Rfewland,
913
847
Mate Hem y Kloeppel,
914
848
i t
Henry C. Palmer,
915
849
i i
Geo. Keeney,
916
850
Capt. Stephen Wade,
917
851
i i
Joseph H. Hawks,
918
852
i t
Benjamin S. Briggs,
919
854
i i
Charles A. Marshall,
920
856
t i
Henry A. L. Potter,
921
857
L i
Thomas A Sears,
922
858
l l
Albert Spencer,
925
859
il
William B Moore,
926
860
Mate Philander Liscum,
927
861
Capt. Samuel T. Ivissam,
928
862
i <
Gamaliel Smith,
929
863
11
Henry J. Moiris,
930
864
11
John F. Holmes,
931
865
11
Dan'l C. Marston,
933
866
i «
Warren P Haynes,
934
867
4 I
James Spencer,
935
868
I I
Charles D. Matthews,
936
869
I I
Benj. K. Babbidge,
937
870
I I
Wm. S Hutton,
938
871
i I
Thomas Mayo,
939
872
I I
Wm. F, Good burn,
940
873
I i
John J. Woodfine,
941
875
11
Andrew Clarke,
942
876
I i
Albert H. Burwell,
943
Capt. Robert A. Moser,
" Hem y T. Keene,
Mate Franklin Wescott,
" Abiam Appleby,
Capt. Edward Coombs,
" Hanison 0 Giles,
44 William Conley,
44 Horace A. Wilson,
' ' Charles E. Keeney,
" Be nj. W at 1 ing ton,
44 James Thompson,
44 Pitkin Page,
" George P Page,
44 Jas. A Freeman,
44 Aug. 13 Dunbar,
44 Chas. Hamilton,
44 Franklin Lawrence,
44 Edward Henick,
44 Geo. Martin,
44 Paul Mayo,
44 Wm Hopkins,
" Eben R. York,
44 John PI. Chase,
44 Chas. Boutelle,
44 Joseph Limeburner,
44 Win Hughes,
44 Uriah B. Patten,
44 Giaham J Lester,
44 Thos P. Stetson,
44 Thos. Y Bliffins,
44 Mate Albeit Burger,
Capt John Simons,
" Nicklas Nicklason,
44 Caspar Bogert,
44 Henrv Gadd,
44 Wm." Link,
44 Geo. L. Dunton,
44 Planford Nichols,
44 Robt Anderson,
" Enoch IP. Sturtevant,
4 ' Fred' k Meady,
44 Jas M. Biyer,
4 4 Mark Dissosway,
44 Alfred Patteison,
44 Jonathan Chase,
44 Geo W. Higgins,
44 Benj. F. Freeman,
44 Geo Shaie,
44 John O'Donnell,
44 Charles J Perkins,
44 Elihu Spencer, Jr.,
44 Enoch E Mulliner,
44 Henry P. Connor,
44 Willard S Higgins,
44 Fred'k S Brandt,
44 Benj. F. Marsh,
44 Lewis Higgins,
44 Mariner S. Crosby,
44 Oliver E. Briggs,
44 Peter C. Sanneman,
44 Frederick N. Yan Brunt,
AMERICAN SHIPMASTERS' ASSOCIATION,
29Ï
944
945
946
949
951
952
953
954
955
956
957
958
959
960
961
962
963
964
965
966
967
968
969
970
971
972 '
973
974
975
976
977
979
980
981
982
983
986
987
988
989
990
991
992
993
994
995
996
997
998
999
1001
1002
1003
1004
1005
1006
1007
1008
1009
1010
Oapt. Levi P. Morton,
Mate Henry V. Stearns,
Capt. Nathaniel Pinkham,
Chas. A. Boutelle,
Joseph H. Tucker,
Daniel Bradford,
Joseph E. Holloway,
Morgan L. Pultz,
John E Downing,
James J. Laprelle,
Wm, P. O'Brien,
Henry Pearsons,
Henry A. Green,
Mate John A. Henriques,
Capt Wm. Mahlman,
Wm. C. Dunham,
John H. Luther,
Edward A. Mix,
Lucius L. Butler,
Mate John Hanson,
Capt Charles Haines,
Wm. Wiley,
Merrill Se wall,
Wm. Hedger,
Eben F. Linekin,
Alfred G. Spencer,
Thos. W. Freeman,
Geo W. Edge,
Allen Alexander,
Mate William Sargent,
Capt. W. Thompson,
Henry Jackson,
Alonzo Small,
Edward H. Wood,
Jas. W. Spates,
Francis Ellingwood,
Prince Harding,
Henry Oldaker,
Mate John Domansky,
Capt Wm. White,
" Joseph Blankinship,
" Jas, Auld,
Mate John II. Jenks,
Capt. Wm. E Plummer,
Wm. Nelson,
Daniel Doane,
Chas. Gillette,
Alfred Price,
Geo. S Pendleton,
Isaac Classon,
Sylvanus Mott,
David J. Sturges,
Wm. Campbell,
Wm. H Kobinson,
Henry NeWton,
Albion K. Miller,
John M. Hudson,
Patrick Kelly,
Henry A. Gadsden,
Henry S. Rich,
20
u
< i
i i
a
i <
< <
it
a
a
i i
i i
a
it
it
i i
11
a
i i
t i
i i
i i
11
11
11
t <
t i
i i
11
t i
1011
1012
1013
1014
1015
1017
1020
1021
1022
1023
1024
1025
1026
1028
1029
1030
1031
1032
1033
1034
1035
1036
1037
1038
1039
1040
1041
1043
1044
1045
1046
1047
1048
1049
1050
1051
1052
1053
1054
1056
1057
1058
1059
1060
1061
1063
1064
1066
1067
1069
1070
1071
1072
1074
1075
1076
1077
1078
1079
1081
Capt. Eastman Cutts,
George W. Baker,
Simeon Howard,
Jas. F. Douté,
Owen Roberts,
Gideon L. Stanwood,
James H. Thomas,
Sumner R. Tibbetts,
Lincoln W. Tibetts,
Elijah S. McCarty,
Wm. H. Mitchell,
Wm. McEwen,
Aûdrew T. Percy,
Wm. C. Harris,
Mate Oliver T. Miller,
Capt. John S. Stephens,
Cyrus A. Nichols,
James R. Speed,
Nathaniel C. Johnson,
Clarence H. Hazleton,
Chas. F. H. Menges,
Henry Taylor,
Wm. Leisegang,
Samuel P. Willeby,
Chas. B. Pendleton,
Chas H. Blake,
Mate Joseph Fagan,
Capt. Franklin B. Lothrop,
Isaac H. Rogers,
Josiah H. Nickerson,
Nathaniel Webber,
John A. Carver,
Henry E. Fuller,
Mate Michael Powers,
Capt. John E Barstow,
" Jonathan T. Morrill,
Mate Oliver P. Hazard,
Capt. Wm C Plummer,
John A Thomas,
Thomas Chatfield,
Lewis Mankin,
Mate William Nilson,
Capt Consider Thomas,
Cyrus E. Staples,
Joshua B Nichols,
Alexander Tillinghast,
Edwin G. Eastman,
David Crane,
Richard G. Luce, Jr.,
Geo. G. Jewett,
Albert H. De Pass,
William B. Daniels,
Franklin Wallace,
Mate John Nichols,
Capt. George Earstow,
Robert Mount,
Thomas Street,
George W. Nichols,
Sherman G. Stevens,
Mate John Winchester,
a
11
11
11
11
a
a
i i
i i
a
a
a
11
11
a
a
a
11
11
11
11
i i
11
11
i i
11
11
i t
11
a
11
11
a
11
11
11
a
i i
i i
a
a
i i
11
a
a
298
APPENDIX.
1082
1088
1084
1085
1086
1087
1088
1089
1090
1091
1092
1093
1094
1095
1096
1097
1099
1100
1101
1102
1103
1104
1105
1107
1108
1109
1111
1112
1118
1114
1115
1116
1117
1118
1119
1120
1121
1122
1123
1124
1125
1127
1128
1129
1130
1131
1132
1133
1134
1135
1186
1137
1138
1139
1140
1141
1142
1143
1144
1145
Capt. George W. Loyle,
Isaac Coombs,
Jobn Power,
Chas. Brown,
Bobt. A. S. Pittman,
Hamilton Perry,
Lewis P. Brown,
Stephen Wallace,
Mate Wm. C. Page,
Capt. Wm. N. Sheriff,
" Geo. McClure,
11 Jacob McConnell,
Mate Chas. Evans,
Capt. Bichard Chandler,
Mate Chas. J. Hill,
Capt. Chas. E. Preston,
Hezekiah Haling,
David J. Harding,
Sam. B. Hall,
Thos. C. Whitney,
Lewis Bates,
Geo. V. Hall,
Ozias McCarty,
Mate John H. Humphrey,
Capt. Wm. Benton,
Hans P. Poulsen,
Josiah Eld ridge,
Wm. V. Simpson,
Henry N. Carver,
Thos. H. Winslow,
Bufus Fowler,
Ernest L. Scharffenorth,
Michael Cromley, •
Fred. L. Hewitt,
Mate Arthur Bayard,
Capt. Bichard E. Patten,
Wm. Lockwood,
Jas. H. Austin,
Joseph B. Lockwood,
David B. Swan,
Bobt. B. Benson,
Bruce McKinney,
Joseph Osgood,
Mate Charles Eastwood,
Capt. Alden Packard,
William Wilson,
Mark Gray,
Jas. B. McLellan,
Chas. B. Hobron,
Joseph Hand,
Balph Morse,
Augustus Morgan,
Levi S. Crockett,
Wm. P. Mulliner,
Chas. N. Hall,
Bobert W. Cazier,
John B. Lawson,
Daniel H. Blake,
John T. Smith,
Paul Pearson,
a
11
u
u
u
u
u
ti
u
a
a
a
a
a
h
a
a
a
it
ii
11
ii
h
11
h
a
h
a
h
h
h
?»
i i
11
a
h
11
ii
1146 Capt. John Parry,
11/iq h Isaac L. Chipman,
Nicholas P. Barry,
William Burnard,
Bobert W. Wheeler,
Harmon H. Tarr,
ThaddeusM. Burt,
James F. Chapman,
Bobert Dewhurst,
Lewis E. Jackson,
Arthur McCready,
ZadocA. Tilton,
James C. Brown,
John H. Sfcarkey'
Thos. A. Higgins,
John Smith,
Hezekiah K. Eldridge,
John B. Morrison,
Saml. B. Beed,
1169 Mate John Bea,
1170 Capt. Alonzo Blanchard,
H71
U72
1173
H74
H75
H76
1177
1178
1179
1148
1149
1150
1152
1153
1154
1155
1156
1157
1158
1160
1162
1163
1164
1165
1166
1167
U68
a
11
ti
a
11
it
11
11
11
11
11
11
11
11
it
ti
11
ti
11
ii
11
11
u
ti
u
• 1
u
Geo. J. Giles,
Albert By an,
Simon Gerwer,
Maurice Cunningham,
Wm. Lund,
Wm. Norville,
Henry J. Hemmingway,
Sereno T. Dayton,
James H. Oakes,
lJ-80 Mate Thos. McCrath,
1*81 Capt. Edwd. C Gardner,
1^82 " John H. Briard,
ll83 11 Danl. F. Hutchings,
1^84 " John G. Bates,
1185 " Alfred F. Gardner,
1186 u Andrew D. Colcord,
1187 " John A. Delano,
1188 u Frank Smithwick,
1189 " Peter Nelson,
1190 " Bussell Doane,
1191 " Joseph H. Bobinson,
1192 " Dan'l. C. Landis,
1193 u John G. Barstow,
1194 u James Clark,
1195 " Alexander B. Weeks,
1196 " James J. Dunham,
1198 11 Jos. J. Lawrence,
1199 " Abel M. Patten,.
1200 " Everett Blanchard,
1201 " Andrew Low,
1202 " Chas. F. Springer,
1203 " John G. Bairnson,
1204 " Edward H. Ashley,
1205 11 Julius F. Caulkins,
1206 u Thomas Anderson,
1207 " John H. Freeman,
1208 Mate Michael Daly,
1209 Capt. Edwin A. Gerrish,
1210 " Benjamin Crowell,
1211
1212
1213
1214
1215
1216
1217
1218
1219
1220
1222
1223
1224
1225
1226
1227
1228
1229
1230
1231
1232
1233
1234
1235
1236
1237
1238
1239
1240
1241
1242
1243
1244
1245
1246
1247
1248
1249
1250
1251
1254
1255
1256
1257
AMERICAN SHIPMASTERS1 ASSOCIATION
299
Capt. James Smith,
" Malcom Livingston,
" Arthur Champion,
" George M. Prindle,
Mate Alexander Wallace,
" James B. Spearwater,
Capt. Ichabod Sherman,
" Wm. J. Simpson,
Mate James A. Macoduek,
Capt. Ezra D. Post,
" Saml. B. Doane,
" Wm. A. Sands,
" Nathanl. Blanchard,
Mate Charles A. Netherwood,
Capt. Hans P. Harksen,
" Francis P. Cushing,
" Purley R.« Bunnels,
" James H. Stewart,
" John D. Shiell,
u Wm. H. Luce,
" Warren Morse,
4 ' J. Gilman Reed,
11 George M. Drinkwater,
" Richard Harding,
" John D. Whidden,
u Henry Rickard,
11 Thomas Scolfeild,
" Robt. N. Ames,
" Joseph Cintra,
u Benjamin Carver, Jr.,
" Henry G. Adams,
" Lewis Davis, Jr.,
" James B. Percy,
" Levi S. Fickett,
" James E. Lord,
" Alexander P. Campbell,
" Wm. Keating,
" Harper Delano,
" Sam'l. D. Ring,
" Edw'd. G. Tinker,
" Arthur J. Collins,
" Rob't Skolfield,
" Chas. G. Carver,
" Chas. T. Weaver,
1258
Capt. Gilbert T. Gowdie,
1259
< t
Tobias Adams,
1260
it
Geo. Haesloop,
1261
11
Milo L. Stockton,
1263
u
Joseph S. El well,
1264
a
Geo. S. Lewis,
1265
a
Henry E. Scott,
1266
Mate Henry Searight,
1267
Capt. Henry T. Waite,
1268
a
Geo. W. Leach,
1269
11
Geo. A. Patterson,
1270
a
Dan'l Merrill,
1272
a
Timothy Batchelder,
1273
a
Elihu E. Winchell,
1274
a
Anthon 0. Kruge,
1275
a
Edw'd. S. Wilkins,
1276
a
James S. Benjamin,
1277
a
Chas. H. Stevens,
Calvin Sherman,
1278
a
1279
a
Nelson H. Gray,
1281
a
W. A. Follansbee,
1282
Mate Wm. H. Brown,
1283
Capt. Wm. Johnston,
1285
a
David Oliver,
1287
a
Geo. C. Allen,
1288
a
Henry Robinson,
1289
11
John R. Anderson,
1290
11
Robt. M. Doane,
1291
n
Thos. M. Goodwin,
1292
ii
Henry F. A. Meyers,
1293
a
John Thompson,
1294
11
Ichabod Norton,
1295
it
Simon H. Cotter,
1296
ii
Jabez H. Snow,
1297
ii
James Daniels,
1298
ii
Thos. J. Leavitt,
1299
ii
Antonio Yianello,
1300
a
James F. Hammond,
1301
ii
William H. White,
1302
ii
Eleazer R. Winslow,
1303
ii
Nathaniel B. Merrill,
1304
u
Richard Ross,
1305
ii
John L. Gibbs,
1307
ti
August Alexander,
300
APPENDIX.
COPY OF CHARTER.
Chapter 445, Laws of 1862.
AH ACT to Incorporate the "American Shipmasters' Associa¬
tion."
(Passed April 22, 1862.)
The People of the State of Wew York, represented in Senate and
Assembly, do enact as follows :
Section 1. John D. Jones, Elisha E. Morgan, Charles H. Mar¬
shall, Robert L. Taylor, Ezra Nye, William C. Thompson, Moses
H. Grinnell, Leopold Bierwirth, Elwood Walter, Daniel Drake
Smith, Theodore B. Satterthwaite, Francis S. Lathrop, Richard
Lathers, Alfred Edwards, Benjamin C. Morris, G. Henry Koop,
William H. H. Moore, and Isaac H. Upton, and such other persons as
they, or a majority, may associate with them, are hereby constituted a
body corporate, by the name of the "American Shipmasters' Associa¬
tion," for the purpose of collecting and disseminating information upon
subjects of marine or commercial interest, of encouraging and advancing
worthy and well-qualified commanders and other officers of vessels in
the merchant service, of ascertaining and certitying the qualifications of
such persons as shall apply to be recommended as such commanders or
officers, and of promoting the security of life and property on the seas.
§ 2. The said Corporation shall have the power to make and adopt a
constitution and by-laws, rules and regulations, for the purposes, objects
and government thereof, for the admission and regulation of members
for the regulation and payment of fees and dues, and for the manage¬
ment of its funds and property, and from time to time to alter, modify
or repeal such constitution, by-laws, rules and regulations.
§ 3. The said Corporation may purchase and possess any real estate,
not yielding an income exceeding five thousand dollars per annum, and
may apply its funds and property, from time to time, in bestowing pre¬
miums or medals for praiseworthy acts in the merchant service, and in
premiums or donations for charitable and other purposes, and in such
other ways as shall seem conducive to the purposes aforesaid.
§ 4, The business, property and affairs of said Corporation shall be
under the general control and management of a Board of Managers,
àmëkïdaî? shipmasters* association
801
and tte said Corporation shall, in and by their said constitution, prescribe
the power and duties of such Board of Managers, and of such other
officers as may be deemed necessary, and the rules and regulations for
the selection, succession and action of such Board of Managers and other
officers. The persons named in the first section of this act shall be the
first Board of Managers*, and shall continue in office until others are so
selected in their stead, respectively.
§ 5. The said Corporation may prescribe terms and regulations, upon
which persons, not members thereof, may participate in the benefits of
said Corporation.
§ 6. The said Corporation shall possess the general powers, and be
subject to the general restrictions and liabilities prescribed in the third
title of the eighteenth chapter, of the first part of the Revised Statutes.
§ 7. Its principal office shall be in the city of New York, but it may
establish agencies, and connect itself with similar associations elsewhere.
§ 8. The Legislature may at any time alter or repeal this law.
State of New York, )
Office of the Secretary of State. }
I have compared the preceding with the original law on file in this
office, and do hereby certify that the same is a correct transcript there¬
from, and of the whole of said original law.
Given under my hand and seal of office, at the city of À1-
[seal.] bany, this first day of May, in the year one thousand
eight hundred and sixty.
J. WESLEY SMITH,
Deputy Secretary of State.
INDEX.
INDEX.
.A
ABANDONMENT. page
See Total Loss and Abandonment, . . 19*7
ACCIDENTAL STRANDING.
See General Average, . . . 131, 184, 135
ADJUSTMENT.
In general average—See General Average, . . 14*7
AMERICAN SHIPMASTERS' ASSOCIATION.
See Appendix.
ANCHORS. * <
t
As to deduction of one third new for old from value of, . 89
Contribution for loss of—See General Average, . 89, 90
ANCHORING ON LEE SHORE.
Damage by, whether contributed for, ... 89
ASSURED.
Description of, . . . v .26
Who may be, . . . - 27
AVERAGE, GENERAL.
See General Average, . . • • .81
AVERAGE, PARTICULAR.
See Partial Loss, . . . . • 163
ARBITRATION.
Master ought not to refer to, a question of Salvage,
17, 18
INDEX.
IB
BARRATRY. ^ PAGE
See Partial Loss, . . . # .173
BLOCKADE.
Wilful violation of, . . . . 174
BOTTOMRY AND RESPONDENTIA.
Right of master to raise money on, to pay for repahs, . 21
Vessel, cargo and freight may be pledged by, to relieve sal¬
vage charges, . . . . . 17
Insurable interest of lender on, . . .55
Will depend upon the validity of the hypothecation, 55
The borrower on bottomry, has no insurable interest except
in the surplus, . . . . . .55
For form of Bottomry Bond &c., see Appendix.
C
CABLES.
Lost under ordinary circumstances, underwriter not liable, 165
CARGO'.
See Partial Loss, . . . . , 178
See Total Loss and Abandonment, . . . 204
Particular average or partial loss of, how adjusted-under an
open policy, . . . . . .46, 50
As to sale of, transhipment of Ac.—See Duties and powers
of master, . 16, 179, 191, 193, 196, 207, 210, 214, 215
Contributory value of, in general average, . 150
CHARTERER.
Insurable interest of, . . . . .58
COLLISION.
A peril of the sea, . • . . . 163
COMMISSIONS.
Insurable interest in, . . . • . 54
Allowed master's consignee, .... 24
Allowed for collecting general average, , . .145
INDEX.
CONCEALMENT. page
As relating to policy of insurance, . . . 67
CONSIGNEE.
Insurable interest of, . . . . .56
Master's consignee at port of refuge, must assist in repairing
ship, and in preserving and taking care of cargo, . 22
And must furnish master with honest and true accounts, . 22
Or will forfeit right to recover moneys truly advanced, . 22
CONSTRUCTIVE TOTAL LOSS.
See Total Loss and Abandonment, . . . 197
CONSULTATION WITH CREW.
As to, in case of jettison, . . . 83, 84
. CONVOY.
Warranty to sail with, . . . . 75
CONTRIBUTION.
See General Average, . , # . .147
CONTRIBUTORY VALUE.
See General Average, . ^ . • . . 147
COPPER SHEATHING.
As to deduction from repair of, • . . 167, 170
"COPPER CLAUSE."
Construction of, . . . . . 167, 170
CREW.
Gratuities to, whether allowed in general average, . 133
X>
OECKLOAD.
Loss of, not contributed for, * . . .87
Reasons therefor, . . . . . 87
But if saved, must contribute for sacrifices in addition to its
own special charges, • ♦ ♦ , , « • 88
ÎNDEÏ.
DELAY. page
Will amount to a deviation, , • . • 78, 79
DEVIATION.
See Implied Warranties, . • • . ,78
See General Average, . . . . • 124
DOCUMENTS.
Necessary to support a claim against underwriters, . 22
DOUBLE INSURANCE.
To constitute, same subject must be insured against same
risk, and whole amount exceed whole value, . 61, 63
ENGLISH LAW AND USAGE.
With reference to general average, ♦ . • 96
and see Appendix.
EMBEZZLEMENT.
Is a barratrous act, . . . • 174
EXCEPTED LOSS.
"Free from average unless general"—" against total loss"
—"against total loss only"—"free from particular av-
erag "—'*not liable for partial loss"—"partial loss
excepted"—mean one and the same thing, 183, 208
Whether general and particular average can be added to¬
gether to make an amount exceeding the excepted rate, 177, 180
Whether separate or successive losses, may be added to¬
gether to make an amount exceeding the excepted rate, 186
Damage to cargo by jettison, as well as damage occasioned
by vessel's leaking, may be united and treated as partial
loss, to bring claim up to stipulated per centage, . 180
EXPRESS WARRANTIES.
Their form, construction and mode of fulfilment, . 10
INDEX.
:f
FOREIGN ADJUSTMENT. PAGE
How far binding, . . . . ,159
Properly made, binds conclusively all parties thereto, . 159
Whether there is an exception where party is refused claim
for contribution, which would have been allowed at place
of insuring, ...... 159
FIRE.
Loss by—See Partial Loss, . *:. . . 1T1
Damage from water in the prevention of, occurring without
the fault of crew, . . . .105
If masts on, and are cut away, . . . 103
FRAUDULENT CLAIMS.
Master's duty to prevent, . . . .23
Illustration of the various attempts at fraud which are
practiced upon underwriters, . . . 23
"FREE FROM AVERAGE."
Meaning of,
FREIGHT.
See Partial loss of,
See Total Loss and Abandonment, *
Contributory value of, in general average,
FRENCH LAW AND USAGE.
With reference to general average,
and see Appendix.
FUNDS.
Raised for the common benefit,
<3-
GENERAL AVERAGE.
Principles and definition of the doctrine of,
Has its foundation in equity,
Three essentials, -
First, sacrifice must be voluntary,
Second, must be necessary,
Third, must be successful,
183, 208
189
209
148
96
127
81
82
82
, 82
82
. 82, 141
INDEX.
GENERAL AVERAGE—(Continued.) page
Jettison—
What it is, . . . . ,83
The most perfect example of a general average loss, . 83
What is required of the master in a case of jettison, 21, 83
Occasion and circumstances of jettison should he carefully
inscribed in log-book, . . . .83
With the exact quantities of the articles so lost, as far as
can be ascertained,, . . . . 83
Objects thrown overboard must have been expressly selec
ted for the purpose, . . . .83
And care should be taken to throw over most weighty
and least valuable articles first, where circumstances will
admit, . . . . . 83
Whether master required to consult with officers and crew
before making a jettison, . . . 83, 84
Jettison rendered necessary in consequence of ship being
too heavily laden, does not constitute a case of general
average, . . . . . . 84
Where loss or damage attributable to usual accidents of the
voyage, whether subsequent sacrifice consequent upon
such loss, constitute the whole a general average, • 84, 85
If masts overboard, and hanging by ship, embarrass and en¬
danger her, are cut away, whether contributed for, . 84, 85
In order to entitle to general average, the sacrifice must be
submitted to under the pressure of imminent danger, . 85
And as the sole means of escaping destruction, . 85, 86
Where general safety has not been imperilled, no contribu¬
tion is due, ..... 86
And where expenditures have not been made for joint bene¬
fit of both ship and cargo, must be charged to particular
interest benefited, . . . . .86
The general safety must be the object of the sacrifice, . -86
Freight of jettisoned goods contributed for, . . 86
Goods carried on deck, and jettisoned, no claim for contribution, 8*7
Reasons therefor, . . . . .81
But must contribute for sacrifices in addition to its own
special expenses or charges, . . . 88
Whether cutting or slipping cable, to avoid danger of going
ashore, or running foul of other vessels &c., is a subject
of contribution, . . . . 88, 89
index.
GENERAL A VER AGE—( Continued) page
When cable slipped, precaution should be taken for recovery
of anchor and cable, by having buoys attached, . 89
In making good anchors, no deduction "new for old," . 89
Chain cables subject to deduction of a third, . . 89
Rule in England, ...... 89
Whether loss from vessel anchoring in unusually dangerous
place, to avoid greater peril, contributed for, . 89
Whether a voluntary loss, or one from usual wear and tear, 90
Why not a voluntary sacrifice, . . . 90,91
Loss of anchor, the result of intention to save cargo from
impending peril, frequently adjusted as general aver¬
age, . . . . . . 91
But otherwise, where lost in ordinary course of naviga¬
tion, ....... 91
Cases illustrating where loss of anchor would be contribu¬
ted for, ...... 91
Anchois and cables when regained after others bought to
replace them, should be sold, and net proceeds, less
salvage, go in reduction of cost of new, . . 92
Enumeration of the usual charges which beloug to general
average, when, in consequence of disaster, vessel bears
away for, and puts into port out of the usual course, . 92
Custom in France in like cases, . . . 96
" Usage at Lloydsi. e., English custom, . . 86
Surveys—
Duty of master with reference to, . . 93
When surveyors are intelligent, and faithful, uninfluenced
by private or local interests, their reports entitled to
credit, and a useful document in adjustment of losses, 93
But master not bound to follow their recommendation, . 93
Nor will their recommendation relieve master or his owner
from responsibility, . . . , 93
Duty of master to prevent the abuse of having useless sur¬
veys, ...... 94
Multiplyi og surveys and other papers, too frequently used
to justify charges, and not with view to benefit master
or owners, ..... 94
Enormous consular fees for calling surveys &c., perfectly
useless, and should be avoided by master, . . 94
index.
GENERAL AVERAGE—( Continued.) p ige
Money—
Raised abroad to enable master to prosecute voyage, rule
as to goods sold for common benefit, . . 97
Powers and duties of master in sucb cases, . 97, 21
Master has no right to sell entire cargo to raise funds, 98, 2 L
Goods sold for common benefit, same as goods jettisoned, 98
Master should not dispose of more than absolutely neces¬
sary, . . . . . 98, 21
How loss discoverable and apportioned, . . 98
Wages and Provisions of crew, ... 98
Rule of contribution for, in United States, . 98, 99
Not allowed in England, .... 98,99
Rule in France, . . . . 99
Rule in United States as to allowance for provisions, . 100
Whether wages and provisions of crew during time em¬
ployed in saving materials and cargo of wrecked ship,
allowed in general average, . . ^ 100
Or while getting off ship accidentally stranded, . 100
After shipwreck, master bound to exert himself to save
goods, ..... 100, 101
Owner held liable for master's neglect in this respect, . 101
In like manner seamen bound to labor in saving materials
and cargo of wrecked ship, or forfeit wages, . 101
What wages allowed in salvage cases, and how appor¬
tioned, ' . . . . . 102
Cargo not to be made liable for wages and provisions dur¬
ing time employed in getting off ship accidentally
stranded, . . . . . 102
Some adjusters make wages and provisions a common
charge from time ship being floated, bears away to go
into port of refuge, to time when voyage abandoned, 102
This practice not sustained by authority, and why, . 102
Salvage and Expenses—
How apportioned, . . . . 102
Whether masts on fire, cut away to save ship and cargo,
contributed for, assuming that they were of value when
cut, ....... 103
Whether common adventure must be saved, or impending
calamity averted, ..... 104
INDEX.
GENERAL AVERAGE—•( Continued•) page
Damage by scuttling, when general average, . 104, 177
Rule in England, .... 117—Note.
Case of Ship "Great Republic. . . .105
Whether claim for contribution, when things sacrificed
could not have been saved, . . . 104
Whether goods sacrificed and allowed for, contribute in
common with those saved, . . . . 119
Whether the property in peril and rescued, riiust be saved
by the sacrifice, . . . . , 120
Deviation to repair loss, and consequent damage, . 124
Expenses of getting ship into port after meeting with disas¬
ter, ...... 125
Goods lost or injured while in lighters, . . .126
If put into another ship, which was captured, . 126
If partly taken out, and ship and balance lost, goods in the
lighters saved do not contribute, . . . 126
Expense of taking out, storing and returning goods, . 126
If goods damaged in consequence of such removal, . 126
When cargo removed for repairs, and necessarily, for its own
preservation, and part destroyed by fire, . . 126
Removal of cargo of perishable fruit which caused decay, 126, 127
"Whether specie liable to contribute for expenses incurred
at port of distress, . . . . .127
Funds raised for common benefit, . . . 127
Expense of forwarding goods when shipwrecked, . 128, 129
Where ship lost or rightfully condemned, and master
tranships cargo, expense of his detention or travelling
to adjacent port to procure a vessel, . . . 130
Expense of travelling to consult the ship-owner or under¬
writer where ship abandoned, - . . . 130
Loss or damage in efforts to get stranded ship afloat, . 131
Goods lost while in wrecking vessel, . . 131
Sails, ropes and other materials, cut up and used at sea, 132
All sacrifices for common benefit, made good in general
average, . . . . . .132
Gratuities to sailors to stimulate them to greater exertions, 133
Passengers' services, , . . . . 134
Expense of getting off accidentally stranded ship, . 134, 135
Re-shipment, cases where new freight would be allowed
in general average, . . . . 136
21
index,
GENERAL AVERAGE—(Continued.) page
Consequential damages, . . . . .136
Where ship in peril so imminent, that total loss apparent¬
ly inevitable, i. e, if ship must inevitably go ashore,
whether voluntary stranding a general average, . 136, 137
Case of Ship "Brutus" . . . . .137
Commission for collecting general average, . . ,145
CONTRIBUTION for a General Average Loss and
Adjustment, ..... 147
Principle of general average contribution, . 147
Rule for estimating value of ship for contribution, 147, 148
Rule for ascertaining contributory value of freight, - 148
How value of cargo ascertained, . . . 150
If goods jettisoned would certainly have arrived in a
damaged state and with value diminished, such value
is to be taken, . . ... . 153
Goods on deck, if saved by average loss must contribute, 87, 88
Goods jettisoned and afterwards recovered, what is to be
contributed for, . . . . 153
Jettisoned goods still belong to owner, . . 153
And finder acquires no title, but lien for salvage, . 153
Jewels, bullion and bank-bills, . . .153
When jettisoned through ignorance of their value, . 154
Why full value should not be contributed for, . . 154
Jewels and bullion always contribute in proportion to
their value, . . . . . 154
So bank bills, unless, . . . . .154
Contributory value, where voyage broken up, and
average adjusted at home port, . . 154,155, 158
Proper place of adjustment is port of final destina¬
tion, " . . . . .155
Rule where adjustment made at home port, . 155
Distinction between general average and partial loss
with reference to adjustment, . . .156
Proper place for adjustment of partial loss, is at the
home port or port of departure, . . 156
Reasons for this, . . . •. . 156
Master's power and duty not to deliver any contributory
goods, until, . . . . . 156
Government property not exempt from contribution, , 159
index.
GENER AL AVERAGE—( Continued ) page
Adjustment made on protest and representations of the
master, does not preclude the owner from showing
negligence or want of skill, and therefore no contri¬
bution, ...... 159
Foreign adjustment, properly made, binds conclusively
all parties thereto, . . . . .159
Whether there is an exception where party is refused
claim for contribution, which would have been allow¬
ed at place of insuring, . . . 159
• ê
" GENERAL CLAUSE."
Respecting other perils, liabilities of underwriters under, 1*75
GRATUITIES, to seamen, are not general average, . . 133
HIDES.
What is included under exception of average on, • 183
HYPOTHECATION.
When master may hypothecate, . • . . It, 21
I
IMPLIED WARRANTIES, . . . 77
INDEMNITY, by insurance, explained, . . 27, 161
INSURANCE.
Species of risks usually insured against in marine policies, 163
Definition of marine insurance, . . . 26
Definition of technical terms, used in and about marine
insurance, . . . . . .26
By whom a contract of insurance may be made, . 27
Nature of indemnity afforded by marine insurance, . 27, 161
INDEX.
INSURANCE—( Continued.) page
Definition of the policy, . • • £9, 30
Forms of, ..... 30, 31
General construction of the policy, . . 32, 36
Governed by laws of place where policy made, . . 33
And of places to which it has reference in respect of acts to
be done under it, . 33
Written clauses take precedence over printed, . . 33
Usages of trade govern construction of terms used in policy
of insurance, . . . . . .34
But usage must be conformable to law and applicable to in¬
surance, . . . . . . 34
No usage permitted to contradict plain and positive provi¬
sions of policy, ...... 34
Proof of assent of insurers to usage by paying claims un¬
der it, ..... 36
Usage may be local, . . . . .36
Valued Policies, ..... 38
Definition of a valued policy, . . . .38
Effect of valuations in the policy, . . . 38
Difference between an open and valued policy, . . 38
Effect of valuations where there are prior insurances, or
amounts have been paid upon other policies, . 39
How freight usually insured in valued policies, . . 42
Presumed to apply to full cargo, . . . 42
If part be at risk, applies pro rata, . . .42
In voyage of distinct parts how intended, . . 42
How cargo usually insured in valued policies, . . 43
Liability of underwriters to pay contribution, . 44
Open Policies, ...... 45
Definition of open policy, . . . . 45
How amount of insurable interest ascertained under, . 45
Usual mode of adjusting a particular average loss on cargo
under an open policy, . . . 46, 50
INSURABLE INTEREST, 52
Meaning of the words "insurable interest," . . 52
No one can insure without having an insurable interest, . 52
Interest must be at risk, . . . . 52
What kind of interest may be insured, . * .52
index.
INSURABLE INTEREST—( Continued,) page
Id all cases it must be alleged and proved that the interest,
in respect of which the insurance is effected, was subsist¬
ing at the time of loss, .... 53
But it need not be subsisting at time of effecting the policy, 53
Assured who has been interested during the risk, but has
parted with his before the loss, cannot sue on the policy, 53
Otherwise, if he have not parted with his interest till alter
the loss, ...... 54
Advances for repairs of ship, give no insurable interest in it, 54
Unless when secured by a lien, . . 54
Creditor, as such, has none, . . . .54
Insurable intetest in profits and commissions, . . 54
Insurable interest of lender on bottomry, . . .55
Will depend upon the validity of the hypothecation. . 55
The borrower on bottomry, has no insurable interest except
in the surplus, . . . . . .55
Insurable interest of consignees, factors or agents, . 56
Master of vessel, as such, has no insurable interest in ship,
cargo or freight, . . . . .58
But may insure his commissions or wages, . , 58
If master sails on shares, he has an insurable interest in
freight to the amount of his share, . . .58
Whether charterer of ship has an insurable interest, . 58
Insurable interest of mortgagor and mortgagee, . 58, 59
Mortgagee, to amount of his debt, . . .59
Mortgagor, to full value, .... 59
Subrogation of insured to right3 of mortgagee, . 59, 60
INTELLIGENCE must be communicated to underwriters, . 67, 68
INTERNATIONAL GENERAL AVERAGE.
See Appendix.
JETTISON*
See General Average, » * • . 83, 87
INDEX.
JEWELS. PAGE
When part of cargo, contribute to general average, accord¬
ing to value, ...... 153
Xj
LAND CARRIAGE.
Liability of underwriters for loss of goods during transporta¬
tion by, . r . . . 179
Duty of master to send goods on by, when he can do so by
reasonable endeavors, . . . . .206
LARCENY.
Whether underwriters liable for loss by, in insurance against
theft, . . . . . . 173
Whether, a barratrous act, . . . . 175
LEAKAGE.
Ordinary, underwriters not liable for, . . 182
LIGHTENING THE SHIP.
Jettison or sacrifice for, is general average, . . 83
FIGHTERS.
Loss by exposure of goods in, when general average, . 126
LLOYDS.
Usage at, in cases of general average, . . .96
s
LOG-BOOK.
Particulars necessary to be entered in, . . 15, 83
LOSS.
See Partial Loss, , . . . .163
" LOSS BY PIRATES, ROBBERS OR THIEVES."
Construction of the clause, and liability of underwriters un¬
der, ...... 172
index.
2MC
MASTS AND SPARS. page
Hanging by side of ship and endangering*her safety, wheth¬
er contributed for, if cut away, . . 84, 85
MARINE RAILWAY.
Damage to vessel while being hauled upon for repairs, or
while being hove down, . . . . 166
MARINE INSURANCE.
See Insurance, . . , . . .26
MASTER—Duties and Powers of.
His is a peculiarly responsible position, . . 13, 14
Qualifications necessary for a competent master, . . 13
In foreign countries, frequently regarded as the representa¬
tive of his country, . . . . 14
And the standard by which people of foreign countries
judge us, ...... 14
Should act upon the responsibility of his own judgment, and
without pariiality, . . . . . 14
And as a prudent owner would act who was owner of both
ship and cargo without insurance on either, . . 14
Should keep himself informed of all circumstances relative
to average losses, . . . . . 16
Should cause to be entered in log-book a faithful record of
all that transpires, . . . . .15
Should note and extend protest, . . . 15
Making a clear statement of events of the voyage, . 15
Should be careful to communicate disaster immediately to
owners &c., . ... . . 15
Should consult underwriter's agent where one resident, . 15
Importance of doing so, . . . . 15
Should seek for proper mechanics in repairs, . . 15
And superintend the work himself, . . . 15
And take care that credit for old materials, and discount for
prompt payment are deducted from bills, . . 15
' Should endeavor to find least expensive means for raising
funds to meet disbursements, . . . 15
And see that all bills are paid and entered in general ac¬
count, ....... 15
INDEX.
M ASTER— ( Con tinned,) page
Vessel must be repaired, if practicable without gross expendi¬
ture exceeding three-fourths her value, . . 15, 16
Master cannot abandon, but must save property to best ad¬
vantage, . ... . . . 204
Provision in New York and New England policies as to
abandonment by owners, . . . . 199
If abandonment accepted, master becomes agent for under¬
writers, ...... 204
Temporary repairs should be made, where full repairs can¬
not be made at all, or without great expense, . 16, 200
Full repairs may afterwards be made at suitable port, at ex¬
pense of underwriters, as in other cases, . . 16
Spars sprung, or sails or rigging injured, which cannot be
readily replaced, master should use efforts to make serve,
until arrival at some considerable port, ... 16
Repairs can then be made with advantage to all parties, with¬
out delay of voyage, or extravagant expenditure, . 16
Goods damaged at intermediate port, should be carefully ex¬
amined, and dried &c., where necessary, . . 16
When master may and must sell damaged cargo at inter¬
mediate port, . ' 16, 179, 1Ç1, 193, 196, 207, 210, 214, 215
Should first consult underwriters' agent, . . 16, 17
When subject to salvage, vessel and cargo should be ap¬
praised at their value as brought in, . . 17
And alternative adopted, either to bond or sell, . . 17
Vessel, cargo and freight may be pledged by bottomry to
relieve salvage charges, . . . . 17
When this cannot be done, owners or underwriters should
be consulted if possible, . . . .17
Ought not to refer to arbitration a question of salvage, 17, 18
Necessity giving master power to sell, . . 18, 201, 202
Must be stringent and positive, . . .18, 201, 202
Master must not abandon vessel or cargo upon any
ground when practicable for human exertions to save
them or any part of them from impending peril, . 18, 204
After shipwreck, master bound to exert himself to the ut¬
most to save goods, . . . . 18, 19
Loss by negligence, carelessness or unskilfulnees, not a
peril of the sea which exonerates the master, . . 19
Master should not abandon property to wreck commissioner 19
index.
MASTER—(Continued.) page
But should keep control of property himself, . . 19
Master not justified in selling vessel, because money cannot
readily be obtained to pay for repairs, unless, . 19
Voyage must never be broken up, when prudent owner,
and uninsured, would have continued to prosecute it, . 20
Efforts which should be made by master to raise funds
for repairs, and means which should be used to reduce
expense, . . . . . . 21
Where master may sell part of cargo to pay for repairs, 21, 98
Has no right to sell entire cargo, . . . 21, 98
Portion sold must be accounted for at prices it would have
brought at destination, . . . . 21
Loss by sale, how apportioned in adjustment, . . 21
Duties of master on resorting to a jettison, or throwing
over cargo, . . . . . 21, 83
Duty of master when voyage inevitably broken up, . 21
Documents necessary to support a claim against under¬
writers, . . . . . . 22
What compensation allowed master, for services closing
up business of wreck &c,, . . . .22
Duty of master's consignee to assist him in repairing ship,
and preserving and taking care of property, . 22
Must furnish master with honest and true accounts, . 22
Or will forfeit right to recover moneys truly advanced, . 22
Master can make no money from shipwreck, or other dis¬
aster, ....... 22
Duty of master to prevent fraudulent claims against un¬
derwriters, ...... 23
Illustrations of the many and various attempts at fraud, . 23
Which, when discovered, ruin master's character and re¬
putation, ...... 23, 25
Duty of master in case of wreck to forward cargo, 179, 205
Must wait until goods put in condition and prepared for
re-shipment, . . . . . .193
Master has a right to carry cargo to its destination, al¬
though circumstances may occur which will cause great
delay, and great diminution of value, . . 193, 210
Duty of master, where cargo is found on survey* at inter¬
mediate port to be in such an advancing state of decay
that it would be utterly worthless if carried on, . 193, 196
ÎNDËX.
M ASTER—( Continued.) page
If ship cannot be repaired, nor another procured, if cargo
not perishable, master should not sell, but store it, con¬
sult shippers or underwriters, and await their orders, 196, 205
Duty of master to send cargo on by land carriage, if he
can by reasonable endeavors, . . . 205
Duty of master to forward part, where part is lost, de¬
pends upon quantity and value of part saved, . . 206
Also on facility of forwarding, and chance of deterioration
while on the way, ..... 206
Duty of master to sell, if forwarding impossible, . 205, 206
General duty of master, as to sale of damaged cargo
<fec., ..... 193, 196, 207
If master can forward goods by reasonable endeavors
and at reasonable cost, he is bound to do so, . . 210
And if he neglects, underwriters on freight only liable as
if this had been done, . . . . 210, 211
See total loss and abandonment, . . . 204
See 'partial loss, . . . . . 178
Whether master has any insurable interest, . . 58
Master's power and duty not to deliver any contributory
goods, until general average has been paid or secured, 156, 157
MEMORANDUM.
See Partial Loss, . . . . . 181
MEMORANDUM ARTICLES.
See Partial Loss, .... 181,182
See Total Loss and Abandonment, . . . 197
MONEY.
Raised abroad, to enable master to prosecute the voyage
—See General Average,
97, 98
1ST
NECESSITY.
Justifying sale by master, . . . 18, 200, 201
Justifying bottomry or respondentia, . . . 20
index.
NECESSITY—( Continued.)
Justifying sacrifice which entitles to contribution in gen¬
eral average,
Master's power arising from—See Master,
NEW FOR OLD.
Rule of deduction for, • • • . 166
NEUTRALITY.
• Warranty of, . • . • . Ï 2
page
85
14
OLD MATERIALS.
Master should take care that credit for, is properly deducted
from bills, . . . . . . 15
Whether value of, is to be deducted in partial loss before or
after third new for old, .... 166
ONE THIRD NEW FOR OLD.
Usual deduction of, . . • . 166
% 1
OPEN POLICY.
See Insurance, ...... 45
PARTIAL LOSS.
Definition of, ..... 163
Species of risks most usually insured against in marine poli¬
cies, ....... 163
"Perils of the Sea"—
What generally included under these words, . 163
Underwriters only liable for what has really been render¬
ed needful by accidents, . . . .164
Repair of old sores and imperfections, appertain to the
owner, ...... 164
index.
PARTIAL LOSS—(Continued.) page
Should be set aside, and charged to owners by adjuster, 164
Average Adjuster must exercise judgment in comparing
accounts, protests, surveys &c., . . .164
And not allow underwriters to be charged with extrava¬
gant or unnecessary expenditure in repairs, . 164
Or permit additions to be made to the ship's fabric, . 164
Or substitution of superior materials for what were taken
away, unless, . . . . . 164
Underwriters responsible for repair or restoration of dam¬
aged or destroyed part of ship, or articles belonging to
it, with materials &c., corresponding to its original
character, . . . . . .165
Underwriter not liable for ordinary wear and tear, . 165
What damages usually attributable to wear and tear, . 165
"Perils of the sea," does not cover loss by worms, . 165
Nor loss by rats, . . . . .166
Unless assured had made all reasonable efforts to extirpate
them, ...... 166
"Perils of the sea," covers loss by stranding, . . 166
Unless happening in usual course of navigation, - 166
And then if a heavy swell causes injury, . . 166
Whether, if ship is injured while hove down, . 1*66
Underwriters liable for extraordinary expenses necessarily
incurred by peril insured against, . . .166
As in raising funds for repairs, . . . 166
But not for wages and provisions of crew while employed
onrepaiis, ..... 166
Nor while vessel is detained, . . . .166
Rale for deduction of "one-third new for old," . 166
Whether value of old materials is to be deducted before
or after the third, . . . . .167
This unsettled by authorities, . . . 167
But expressly provided for by New York and New Eng¬
land policies, . . . . .167
Rule for deduction on copper sheathing, . . 167
Provision of New York and Boston policies, . 167, 168
Construction of copper clause, . . . 168
Rule as practised by Adjusteis in New York and Bos¬
ton, . . . . , .168
Custom in England, . . . . 169
index.
PARTIAL LOSS—(Continued.) < page
Experiments of Sir Humphrey Davy and others, to re¬
duce or prevent wasting of metal sheathing, . 169
Rule general in United States, that weight of metal equal
to quantity stripped off, is allowed in full, . 170
Deficiency in weight charged to underwriters, . . 170
Excess of weight charged to owners, . . J 70
When copper replaced with yellow metal, owners can
claim the difference in amount from underwriters, . 170
Expenses properly belonging to repairs, from which a
third is deducted, . . . . 170
Deduction niade from dockage, . . . 171
And incidental expenses connected distinctly with repair, 171
When temporary repairs to be charged to partial loss net,
i. e., without the deduction of a third, . . 171
General average repairs may be added to partial loss re¬
pairs, to bring loss up to stipulated per centage, . 177
Damage by Fire—
Not a loss by perils of the sea, . . . 171
But always specifically insured against, . . 172
Fire generally ends in ship's destruction, . . 172
Utmost precaution should be taken to guard against in
stowage of cargoes, . . . . .172
Keeping a full and competent watch, . . 172
Sails should be unbent in cases where vessel might re¬
ceive damage while lying at her dock, from fire in ad¬
jacent buildings, . . . . .172
Loss by Pirates, Robbers or Thieves, . . 172
Underwriters usually liable for loss by acts amounting to
piracy or robbery, . . . . .172
Even if committed by crew, . . . 172
Provided due care is used to prevent, , . . 172
But violence necessary, . . . . 172
Whether loss by theft without violence is within clause, 172
Underwriters liable for loss by larceny, in insurance
against theft, . . . . .172
" Assailing thieves," covers only theft fiom without, with
violence, . . . . . 173
Loss by Barratry, . . ♦ e .173
Defined to be any wrongful act of master, officers or crew,
against owner, . . . . . 173
index.
PARTIAL LOSS—( Continued.) page
Act must be wrongful, and wiongfully intended, . 173
If mast unnecessarily undergoes extraordinary peril, 173
So if act is done by master for bis own benefit, . 173
If master is sole owner, cannot commit barratry, . 173
But if only part owner, may commit barratry against
otlier part owners, . . . . 174
Trading with public enemy a barratrous act, . . 174
Though done with intent to benefit owneis, . 174
So collusion with enemy privateer to have ship captured, 174
And fraudulently sailing from port of the enemy, . 174
And resistance to search when rightfully demanded, 174-
And rescue of neutral vessel detained and sent in for ex¬
amination, . . . . . 174
Wilful violation of blockade, . . . .174
Or of an embargo, . . . . 174
And when captain goes off course and fraudulently sells
vessel, . . . . . .174
Theft, embezzlement and wilful destruction of property,
are barratrous acts, . . . . 174
Gross and palpable violation of trust, and reckless disre¬
gard of duty, . . . . . .174
Many policies provide against barratry, if assured is owner, 174
This limits insurance against, to loss to cai go shipped by
others than owner, . . . . .174
Necessary for owner and master to guard diligently against
misconduct of crew, . . . . 174
If so guarded against, underwriters liable, . . 174
Barratry includes larceny and embezzlement, but not petty
thefts, ...... 174
General Clause Respecting other Perils, . . 175
Covers other perils of a like kind to those specified, 175
Enlarges scope and operations of policy but little, . 176
Description of damage, held to be covered by this clause, 176
Particular Average or Partial Loss of Goods, . 178
Distinction sometimes made in books between particular
average and partial loss, . . . 178
In practice usually taken to mean same thing, . 178
Partial loss on cargo, how generally adjusted under
an open policy, . . . , 46,50,178
index.
PARTIAL LOSS—(Continued.) page
Loss by having to pay freight on sea-damaged goods
arriving in bulk, is not a charge on underwriters on
goods, . . . . . .178
Duty of master in case of wreck to forward cargo, 178, 179
If at increased freight, whether insurer of cargo or
freight is liable, . . . . 179
Insurer of goods has nothing to do with freight, , . 178, 179
But is liable for increased freight, if forwarded for his
benefit, . . . . . 179
And not liable if it could be avoided by delay not in¬
jurious to goods, and if forwarded for owner's benefit, 179
Duty of master to forward damaged goods from inter¬
mediate port, . . . . .179
And to dry or wash them if necessary, and it can be done
at reasonable expense, . . . . 179
And if he fails, underwriters not liable, . . 17.9
Goods necessarily sold in port of distress to defray ex
penses of repairing ship, cannot be claimed as an aver¬
age loss from underwriters on goods, . . 179
But loss shipper sustains may be recovered by owner of
ship, . . . . . .179
Where vessel wrecked, and cargo sent forward in another
vessel, underwriters liable for loss while goods are in
substituted ship, . . . . 179
Underwriters also liable for loss while being sent over
land for transhipment, . . . .179
Underwriters not liable for loss caused by inherent de¬
fects or tendencies, . . . . 179
But this not applicable to such tendencies, excited by
perils insured Against, . . . . 179
Damage to cargo by jettison, as well as damage occasion¬
ed by vessel's leaking, may be united and treated as
partial loss, to bring claim up to stipulated per cent-
age, . . . . . . 180
And in this case assured can claim from underwriters the
insured value of cargo jettisoned, . . .180
Memorandum— . . . . . 181
Articles enumerated in, . . . .182
Reasons for its introduction into policies, . . 182
index.
PARTIAL LOSS—(Continued.) page
Similar clauses contained in policies of all the States, . 182
All other goods not enumerated in, pay average when it
amounts to five per cent., . . 183
Meaning of the words " warranted free from average un¬
less general," . . . . .183
Meaning of "furs," "skins," "hides," "roots," . 183
There'can be no constructive total loss of memorandum
articl es, the underwriter insures against their total loss only, 184
If by reason of perils insured against, articles are placed
in such a condition that in consequence of inevitable
deterioration or decay, they cannot be carried forward
without being wholly destroyed, and are sold in conse¬
quence, this will constitute a total loss within meaning of
memorandum clause, . • . . 184
In such case proceeds will become a salvage for benefit of
party who is to bear the loss, . . .184
The sale in this case does not change rights of parties
under the policy, but saves something for benefit of un¬
derwriters which would otherwise be lost, . 184
According to English law, assured cannot claim reim-
busement for expenses incurred at intermediate port
to avert loss on memorandum articles unless a total
loss of the whole subject had been impending, . 184
Intention and effect of clause limiting liability of under¬
writers to a certain amount, . . , 185
Underwriters are, in all cases, liable to payment of gen¬
eral average, whatever may be the amount, . 185,480
Whether successive losses may be added together to
make up required per centage, . . . 186
If different articles are insured in same policy, under one
valuation, free from average under a certain per cent.,
loss equal to per centage on whole valuation necessary, 186
Otherwise, if articles are separately valued, . . 186
In England if packages are separately valued, insurers
liable only for those totally lost, . . 186
Otherwise not, . . . . .186
Whether rule is same in this country, . . 186
Clause Respecting Stranding, . 187
Reason for introducing, and original intention of, . 187
index.
PARTIAL LOSS—(Continued.) . page
But a different meaning adopted, . , . 188
Means goods to be free, etc., unless ship is stranded, . 188
Underwriters liable for partial loss, if there once be a
stranding, - . . . . .188
Reason for such construction, . . . 188
What will constitute a stranding so as to render the un¬
derwriters liable, . . . . .188
Partial Loss of Fkeight, . . . 189
Interest in freight on policies has been treated in a more
liberal manner than any other subject of insurance, . 189
How this is so, . . . . 190
Interest in freight has its inception, when ship commences
taking in cargo, . . . . .191
Whether loss of freight on part of cargo justifiably sold
by master at port of refuge, is a partial loss on freight, 191
Master bound to earn all the freight he can, . 191
Loss arising from neglect to do so not borne by underwri¬
ters, ...... 191
If specific goods arrive, though in consequence of sea
damage, of no value, whole freight is due, . 192
And assured on freight has no claim on underwriters for
any loss, ,. . . . . . 192
Underwriters not affected by neglect of master to forward
cargo, . . . . . . 193
If goods sold owing to danger of disease or spontaneous
ignition if carried on, whether underwriters on freight
discharged from claim for partial loss, where damage
occasioned by perils insured against, . . 192
And where damage not by a peril of the sea, whether un¬
derwriter discharged, and shipper liable, • 192
Master must wait until goods put in condition and pre¬
pared for re-sliipment, . . . .193
Underwriters not liable for his neglect to do so, if goods
would have arrived in specie, . . . 193
Master has a right to carry cargo to its destination, although
circumstances may occur which will cause great delay
and great diminution of value, . . .193
Shipper not liable to pay freight unless performance of
contract has been waived, . . . 193
index.
PARTIAL LOSS—( Continued) page
Duty of master, where cargo is found on survey at in¬
termediate port, to be in such advancing state of
decay that it would become utterly worthless if car¬
ried on, . . . . 193, 196
Whether consent of shipper to sell, would be presum¬
ed in this case, ..... 193, 194
If not, whether underwriters on freight liable, . 194
If ship cannot be repaired, nor another procured, if cargo
not perishable, master should not sell but store it, con¬
sult shippers or underwriters, and await their orders, 196
As sale of cargo at intermediate port entails loss of freight,
master should try to reduce the loss, by procuring fresh
goods to fill up the vacancy, . . . 196
Pro rata freight, meaning of, . . . .195
Has no existence in law or in commercial usage, except as
a compromise between owner of cargo and owner of
ship, . . . . . 195
PARTICULAR AVERAGE.
See Partial Loss, . . . . ,163
PASSENGERS.
Services, sums paid for, allowed in general average, . 134
PERILS OF THE SEA.
See Partial Loss, . . . . .163
What usually included under these words, . . 163
POLICY OF INSURANCE.
< See Insurance ..... 29, 30
PRIOR INSURANCE.
Construction of the clause usually inserted in all policies
of this country, termed the "American clause*'1 . 61
Liability of underwriters, . . . . 61
Rule where policies are simultaneous, . . .62
Effect of valuation in policy, in ascertaining amount to which
subsequent policy is applicable, . . . 39
PROTEST.
When master should note and. extend, • » .15
INDEX.
DR,
RATS. PAGE
Loss by, whether peril of the sea, 166
REPAIRS.
See Partial Loss, . . . . .163
Departure from usual course to procure, . . 92
Advances for, give no insurable interest, . . 54
Unless secured by a lieii, . . . . 54
REPRESENTATION AND CONCEALMENT.
Definition of a representation, . * . .64
Affirmation or denial of some part necessary to constitute, 64
Or allegation leading mind to same conclusion, . 64
Concealment or misrepresentation of material facts defeats
the policy, ..... 64, 65
Representation made to underwriter must be true, or he is
discharged, ..... 65
And if assured represents facts without knowing the truth,
he takes risk upon himself, . . . .65
If assured or his broker, omits to state a material circum¬
stance supposing it not to be material, underwriter dis¬
charged, ...... 65
Policy void if underwriter insures a vessel he knows to have
arrived, ...... 65
If insurance broker makes false representations, he is liable
to his principal for damages, . . . 65
What things should be communicated, . . .66
All things affecting mind of underwriter as to whether he
will insuie, ..... 66
And as to what premium he will insure at, . 66
Contract of insurance one of mutual good faith, . 66
Undei writer presumed to act upon belief that party procur¬
ing insurance is not at the time in possession of any fact
material to the risk which he does not disclose, . 66
And that no loss had occurred, which by reasonable dili¬
gence might have been communicated, . . 66
Assured not required to represent facts of general notoriety, 66
Or which are presumed to be known to those conversant
with the trade, . . . . .66
Must state all facts within his knowledge, material to risk, 66
index.
> '
REPRESENTATION AND CONCEALMENT—( Continued.) page
And if information suppressed, would have induced insu
rer to demand higher premium, or refuse to underwrite,
policy void, ..... 66
What underwriters presumed to know need not be commu¬
nicated, ......
Principle upon which false representation or concealment
avoids the policy, ..... 66
Definition of concealment, as it relates to a policy of insur¬
ance, ....... 67
RE-INSURANCE.
Definition of, . . . . . * 61
Every insurer may re-insure, . . . 61,63
But his insurable interest exists only in relation to perils
against which he has insured in original policy, . 63
RISKS COVERED BY THE POLICY.
See Partial Loss, . • . . .163
3
SALE OF SHIP.
See Total Loss and Abandonment, . . .197
Necessity which will give master power to sell, 18, 200, 201
Must be stringent and positive, . . . 18, 201, 202
SALE OF CARGO.
By master, ..... 193, 196, 207
SALVAGE.
See General Average, . , . .102
SALVAGE LOSS.
«
Apportionment of, . • . . • 102
SEA-WORTHINESS.
See Implied Warranties, . . • . .77
•
SEAMEN.
Gratuities to, are not general average, . , , 133
INDEX,
SHEATHING.
See Copper Sheathing,
SHIP.
Contributory value of in general average,
SHIP MASTERS' ASSOCIATION.
See Appendix.
SCUTTLING.
Damage by, . 104, 117
SPECIAL CHARGES.
Incurred at intermediate port to avert a loss on memoran¬
dum articles, , . . , . .184
SPECIE.
Liability of, to pay general average, . . , 127
STRANDING.
See General Average, .....
Clause respecting—See Partial Loss, „ . 187
$
SURVEY.
See General Average, . ... 93
SURVEYORS.
See General Average,... 93
T
TECHNICAL TOTAL LOSS.
H
Synonymous with constructive total, • . . 197
TEMPORARY REPAIRS.
When general average, . . . • 132
When should be charged to partial loss net, . . 171
*
THIEVES.
Loss by, 172
PAGE
167, 170
147, 148
mmx. ,t,
u THIRD NEW FOR OLD." page
Rule of deduction of, . . 4 .166
Whether value of old materials is to be deducted before or
after the third, . . . . , 166
TOTAL LOSS AND ABANDONMENT.
Definition of a total loss, . . . . 197
Two kinds of total loss, absolute or actual, constructive or
technical, . . . . . . 197
Definition of an absolute total loss, . . . 197
Definition of a constructive total loss, . . 197
AbandoxNMENT OF SHIP, .... 197
Expense of restoring what has been destroyed, and of re¬
pairing what has been injured about a ship, the most
common form of her constructive death, . . 198
Causes which lead to the abandonment of a ship, . 198
Breaking up of the voyage not sanctioned, when a pru¬
dent owner, uninsured, would have elected to repair, 198
Requisites necessary to convert a partial loss into a con¬
structive total loss, . . . . .198
Constructive total loss, by damage to ship over fifty per
cent., how estimated, . . . . 199
Provision in New York and New England policies, . 199
Expenses of repairs to be estimated at place where made, 199
Or where they would have been made, . . 199
If ship can be partly i epaired at port of distress, and then
taken to port where she can be wholly repaired at less
expense, master bound to do so, . . 200
And underwriter liable only for the less expense, . 200
Cost of navigating from port to port to be added, . 200
If master has commenced to repair, assured cannot abandon, 200
Assured in this case can only recover expenses incurred,
although it exceeds half the value of the vessel, . 200
Whether underwriter has the right to offer ioirepair, and
escape liability for more than actual cost, . . 200
Underwriter must repair within reasonable time, . 200
And must tender ship in as good condition as before acci¬
dent, .... . 200
Or supply or pay for any deficiencies, . , . 200
Total loss by sale of ship by master, . . . 200
Only arises from necessity, . • . 200
index
TOTAL LOSS AND ABANDONMENT—(Continued) page]
Necessity to be judged by existing facts, not by result, 201
Bule, that sale is justified only by stringent necessity, . 201
Or if prudent owner, under same circumstance-, and un¬
insured, would have done so, . . 201
Notice to owner necessary, unless positive danger of great¬
er loss by delay, . . . . .2.02
If master cannot communicate with his owners, but knows
vessel to be insured, must consult insurers if possible, 202
No abandonment for sale by master, to prevent forced sale
by process of law, in port where assured should have
funds, ...... 202
No abandonment, if negligence of resident agents of own¬
ers prevents repairs, . . . . 202
If master is part owner, he has no greater power to sell,
than if he were master only, . . . 202
If master sells he cannot buy, . . . 202
Purchase by surveyor, port warden, or any person offici¬
ally promoting sale, suspicious, . . . 202
Mere fact of sale, irrespective of state of ship which made
it necessary, can never give assured right to abandon, 202
Damage must not be caused by any inherent defect, 202
Where loss not caused by perils insured against, but by
negligence of assured or his agents, underwriters not
responsible, .... 202
Case of Schooner Margaret Hopping, extract from opin
ion of Judge Duer, . . . . 202
Inability of the master to raise funds for repairs, whether
a sufficient cause for abandonment, . . 203
Duty of master to communicate this necessity to owners, 204
Owner's duty to abandon if he elects so to do, . . 204
Master has no right to abandon, . . 204, 214, 215
But must save property to best advantage, . 204, 21'4, 215
Is ager^t for both owners and underwriters, . 204, 214, 215
Effect of abandonment, . < . .214
Abandonment of Cargo, ....
Goods totally lost if destroyed by peril insured against, 204
Or if so injured as to be of little value for purpose intend¬
ed, . . . . . 204
Or if voyage insured is wholly broken up, . 205
index. #
TOTAL LOSS AND ABANDONMENT—( Continued) page
But not if broken up merely for the season, . . 205
Or if saved, but ship lost, and delay in forwarding occurs, 205
Duty of master to forward the cargo, . . 205
Where original ship is disabled, and no other can be pro¬
cured, master has a right, when cargo is of a perishable
nature, and sea-damaged, to sell, . . . 205
And in such case owner may abandon and recover for a
total loss, . . . . . 205
But where ship can be repaired in a reasonable time, or
where another ship can be procured, it is master's duty
to send goods forward, .... 205
If he neglects to do so, assured cannot'abandon, . 205
If, however, they cannot be sent on with any prospect of
arriving in merchantable state, they need not be for¬
warded, but may be sold and abandoned, though means
of transhipment exist, .... 205
Cases illustrating these positions, . . . ; 205
Duty of master to send goods on by land carriage, if he
can by reasonable endeavors, * . . 206
Total loss by neglect to do this, a loss by misconduct of
master, ...... 206
Shipper cannot abandon if master neglect to tranship, if
transhipment is possible, .... 206
Duty of master to forward part, where part is lost, de¬
pends upon quantity and value of part saved, . 206
Also on facility of forwarding, and chance of deterioration
while on the way, ..... 206
Duty of master to sell, if forwarding is impossible, . 206
And proceeds go to underwriters on abandonment, . 206
This applies whatever the cause of injury, if peril insured, 206
But not if goods perish by intrinsic defect, . 206
Fifty per cent, rule applies to cargo as well as ship, . 206
Remaining interest must be transferred to underwriters, 207
General abandonment has the effect of universal transfer, 207
Where vessel is wrecked at a distance from anv market,
expense of transporting goods, and sale, to be deducted
from gross proceeds to determine whether loss exceed
fifty per cent, . . . . . 207
Right of master to sell, as laid down by Mr. Arnould, 207
index.
TOTAL LOSS AND ABANDONMENT—(Continued.) page
Power of master to sell cargo, depends on exactly same
principles as power to sell ship, and like it, can only he
exercised in cases of extreme necessity, . . • 207
Present rule in the English courts, as decided by Lord
Abinger, in the great leading case on this subject, . 207
"Total loss," "free from average," "free from particular
average," "not liable for partial loss," " partial loss ex¬
cepted," all mean same thing, . . . 208
American doctrine of less at jport of destination, . 209
Underwriters not liable if goods arrive in specie, that is,
of the same kind as those originally shipped, . 209
American doctrine of loss at intermediate port, . 209, 184
Pule in New York, if goods exist in specie, underwriters
not liable, . . . . . 209
Opinion of Mr. Parsons, that this rule is not founded on
principle, ..... 209
If goods cannot be forwarded consistently with health of
crew and safety of vessel, loss total, . . 209
Abandonment of Freight, .... 209
Total loss, if ship becomes a wreck, or unnavigable, . 210
Or is detained so that voyage is broken up, . . 210
If master can forward goods by reasonable endeavors
and at reasonable cost, he is bound so to do, . 210
And if he neglects, the underwriters are only liable as
if this had been done, . . . 210, 211
And loss will be total or partial, according to amount
so adjusted, ..... 210, 191
Master has a right to forward goods if he can, . 210, 191
And shipper must pay him full freight, . . 210, 191
Whether, if vessel is lost and goods cannot be forward¬
ed at less than original freight, loss total, . . 210
If ship and cargo are damaged by perils against which
freight is insured, but ship can be repaired in a reason¬
able lime, and cargo, on which over half of stipulated
freight is to accrue, remains in condition to be forwarded,
assured on freight cannot abandon, . . 210
Absolute loss of cargo, as of ship, is a total loss of freight, 211
Freight may be demanded for goods existing in specie, and
delivered to consignee, . . • .211
îndêx,
TOTAL LOSS AND ABANDONMENT—( Continued) * ï>age
And it is not lost, however goods may be deteriorated, 211
But they must remain what they originally were, articles
of the same kind as those shipped, and not mere re
mains of its destruction or decay, . . 211
If contents of boxes or barrels, are washed out by peril
of the sea, shipper is not liable to pay freight; accord¬
ingly underwriters on freight liable, though boxes arrive
in safety, . . . . . .211
But if loss was owing to intrinsic defect, shipper liable for
freight, and underwriter on freight not liable, . 211
If freight is lost, new freight for remainder of voyage be¬
longs to underwriters, .... 212
Abandonment of ship transfers to underwriters power to
earn subsequent freight, . » . 212
And if ship insured in one place, and freight in another,
insurers of ship entitled to subsequent freight, . 212
Insurers of freight entitled to previous freight, . 212
Freight may be apportioned, .... 212
If cargo wholly lost, and ship can take another for same
voyage, or the remainder of it, the freight so earned is
salvage on that originally agreed for, . . 212
But this is only applicable in case of prosecution of same
voyage, * . . . . . . 212
Form and Manner of Abandonment, . . 212
No form prescribed by law or usage, . . . 212
Notice usually given in writing, though not absolutely ne¬
cessary, . . . . . 212
Notice must be distinct, and should state grounds of aban¬
donment, . . . . . .213
And cause stated, must be peril within the policy, . 213
And it has been held that no other ground of abandon¬
ment can be relied upon, than those stated, . 213
Acceptance of Abandonment, . . . 213
Not necessary to full effect of, . . .213
Underwriters not bound to accept, or declare refusal, 214
Why abandonments are generally refused by underwri¬
ters, ...... 214
Effect of Abandonment, . . . . 214
1NDEÏ.
TRANSHIPMENT of goods when voyage bro¬
ken up, . , . . 178, l79, 193, 204, 2(35
UNDERWRITERS.
Liability of—See Partial Loss, . . . 163
See Total Loss and Abandonment, . . . 197
How affected by. a foreign adjustment of general average, 159
Only liable in partial loss, for what has really been rendered
needful by accidents insured against, . . 164
Responsible for repairs or restoration of damaged or destroy
ed part of ship, or articles belonging to it, with materials
<fcc., corresponding to its original character, . . 165
Not liablé for ordinary wear and tear, . 165
Liable for extraordinary expenses necessarily incurred by
peril insured against, . . . . .165
Not affected by neglect of master to forward cargo, . 192
UNDERWRITERS' AGENT.
Should be consulted by master, . . . .15
Importance of doing so, . . . . 15
"UNLESS GENERAL."
Construction of the clause, . . ♦ » 183
USAGE.
As applied to construction of policy, * ; • 34
"V
VALUATION.
See Insurance, . . • • « 38
VALUED POLICY.
See Insurunce, . . • • • 38
VOLUNTARY STRANDING.
See General Average, . • • • 136,137
INDEX.
"W*
WAGES AND PROVISIONS.
When allowed in general average, . • ... 98, 99
Cargo not liable for, in general average, during time em¬
ployed in getting off ship accidentally stranded, . 100, 102
Nor when vovage is abandoned at port of necessity, . 102
But only where voyage is resumed and cargo delivered at
its port of destination, . . . . 102
Allowed by some adjusters in United States, from time when
ship being floated bears away for port ofijrefuge, to time
\ voyage is abandoned, . . . . .102
This practice not sustained by authorities, . 102
Can properly be general average only when voyage has been
or might be resumed, . . . . .102
Underwriters not liable for, while employed in partial loss
repairs, . . . . . 166
Not allowed in England, , . • .98
Rule in France, ..... 99
Rule in United States as to allowance for provisions, . 100
What wages allowed in salvage cases, and how apportioned, 102
WARRANTIES.
How a warranty of policy of insurance is regarded in law, 69
Definition of express and implied warranties, . 69
Express warranties generally—their form—construction—
and mode of fulfilment, . . . 70
Non compliance with a warranty, has the effect of discharg¬
ing underwriters from liability, . . . 70
Warranty of ownership, . . . . .71
Warranty of neutrality, . . . . 72
Warranty of time of sailing, . . , .73
Ship sails if she gets under way with intent to proceed di
rectly to sea, . . . . . 73
If ship moves, intended for sea, but accidentally delayed, a
sailing, . . . . . . 73, 74
Wh ther if ready, but delayed from moving, . . 74
Warranty to sail with convoy, . . . 75
Particular warranties and stipulations, . . .75
Definition of implied warranties, . . 77
Of seaworthiness, . . . . .77
Deviation, as understood in a policy of insurance, . 78
INDEX.
WEAR AND TEAR.
I
Whether underwriters liable for, . . . 165
WORMS.
Loss by, not a peril of the sea, • . . . 165
WRECKER.
Must make good damage occasioned by wrecking vessel, 131
"5T
YELLOW METAL.
See Partial Loss, « . . « • 169
Books Recently Published
ET
HE3STEt"5r SPEAE,
133 PEARL AND 86 BEAVER STREETS, NEW YORK.
THE LAW "OF SHIPPING,
And Merchants' and Shipmasters' Guide,
8V0. SHEEP.
By FRANCIS B. DIXON, Author of Abridgment of the Maritime Law.
SECOND EDITION—PRICE $4.00.
Delivered to Purchasers Postage Free, to any Address in the United States.
CONTENTS:
Chap. 1. Of Merchant Ships, the mode by which property in
ships may be acquired, and the rights and liabilities attached to it.
2. Of Part Owners, their legal relation to each other, and ex¬
tent of their^powers and liabilities.
3. Of the Authority of the Master, with regard to the em¬
ployment of the ship.
4. Of the Authority and Office of the Mate.
5. Of the Master's Authority oyer the Mariners.
6. Of Barratry.
7. Of the General Duties of the Master and Owners, with
regard to Preparation, Commencement, Course and Completion of the
Voyage.
8. Of the Earning and Payment of Freight.
9. Of the Contract of Affreightment by Charter Party.
10. Of Bills of Lading.
11. Of Stoppage in Transitu.
12. Of Pilots.
13. Of the Shipping Articles, and herein of the hiring of Sea¬
men generally, and the Statutory Provisions respecting them.
14. Of the Seaworthiness of the Vessel.
15. Of Perils of the Sea.
16. Of the Medicine Chest.
17. Of the Supplies Required by Statute to be Put on Board.
18. Of the Earning and Payment of Wages, when, the whole
wages are to be paid ; cases in which a part only is paid ; service not
wholly performed by reason of Death, Shipwreck or Abandonment of
the Voyage; and time at which payment is to be made.
19. Of the Remedy of Seamen to Obtain Payment of Wages.
« <
20. Of Consuls, their general duties, and particularly with regard
to destitute Seamen.
21.
Of
Bills of Exchange.
22.
Of
the Revenue Laws.
co
cm
Of
General Average.
24.
Of
the Adjustment of General Average.
25.
Of
Particular Average and Partial Loss.
co
c3
Of
Abandonment..
27.
Of
Bottomry.
28.
Of
Collision.
29.
Of
Salvage.
Appendix, containing a Vocabulary of Sea Terms ; Rules for Stow¬
age and Dunnage, and many very useful and legally approved forms.
TESTIMONIALS.
LETTER FROM BOSTON UNDERWRITERS.
Boston, Sept. 1st, 1859.
Francis B. Dixon, Esq.,
New York :
Bear Sir:—An examination of your " Law of Shipping," has afforded us So much satisfac¬
tion, that we cannot forego the pleasure of expressing to you our appreciation of its eminent
utility and value.
A work in which the rules of law applicable to Common, Commercial and Maritime transac¬
tions, might be found laid down with brevity and clearness, and so stated as to be within the
comprehension of men not learned in the law, has long been wanted in this country, and this
want, we think it may be safely said, your compilation has fully supplied.
Affording, as it does, all the information necessary in ordinary cases to enable him to under¬
stand his own rights, and to act intelligently in the performance o£ the duties which he owes
to others, the " Law of Shipping," seems to us eminently worthy the attention of the Mer¬
chant, the Ship-Owner, the Ship-Master, and indeed every one in any way connected with
commercial pursuits.
We are, very respectfully,
Your obedient servants,
R. S. S. Andros, President Alliance Insurance Go.
C. Curtis, President Neptune Insurance Co.
P W. Freeman, President Boston Insurance Co.
John Clark, President Equitable Safety Insurance Co.
FROM THE HON. FRANCIS B. CUTTING.
/ New York, July 20i7t, 1859.
Dear Sir :
I beg to return you my thanks for the copy of your manual on the Laws of Shipping, and Mer¬
chants' and Shipmasters' Guide.
I have read it with attention, and take pleasure in expressing the opinion that it is a work of
great merit. Its general plan is excellent ; its method of treating the subjects contained in it ;
and its clearness and simplicity of style will make it a very useful book of reference to ship¬
masters, and to persons engaged in commercial pursuits. It is extremely well adapted to their
wants, and will, i do not doubt, prove to be a hand-book of extensive and popular use.
Very truly yours,
F, B, CUTTING»
Francis B. Dixon, Esq.
TESTIMONIALS
FROM A. B. NEILSON, Esq.
President Sun Mutual Ins. Co., also President of the New York Board of Underwriters.
New-York, July 12nd, 1859.
Dear Sir :
Permit me-to concur fully with Mr. Cutting in the approval of your work.
It will doubtless conduce very much to enlighten that class of men to whom the interests of
Underwriters are confided, namely, ship-masters, who are in many instances lamentably de¬
ficient in the sort of knowledge which would enable them to distinguish between the various
rights of the parties interested in ships and cargoes.
With much respect,
Your obedient servant,
A. B. NEILSON,
President Sun Mutual Ins. Co.
Francis B. Dixon, Esq.
FROM ELLWOOD WALTER, Esq.
' y
President Mercantile Mutual Ins. Co., also Secretary to the New York Board of Underwriters.
New York, July 22nd, 1859.
I agree entirely with Mr. Cutting and Mr . Neilson in relation to the value of Mr. Dixon's work
in the hands of ship-masters, to many of whom a book of this kind will be a most desirable
acquisition.
ELLWOOD WALTER,
President Mercantile Mutual Ins. Co.
FROM DANIEL LORD, Esq.
New York, 11th July, 1859.
Accept my thanks for Mr. Dixon's Law of Shipping. On the perusal which I have been able to
give it, the topics seem to be very plainly stated, as well as correctly. They embiace a wide range of.
information of the greatest interest to all connected with maritime commerce, and the book cannot
fail of being very useful, especially to Ship-masters, in their absence from home and fiom the
adviseis to whom they would otherwise resort.
I am, truly yours,
DANIEL LORD.
FROM GENERAL JOHN S. TYLER.
Average Adjuster, Boston.
Boston, 2Sth May, 1859.
My Dear Sir :
In the name of the nautical community I return to you an expression of gratitude for the ser¬
vice you have rendered to the public. You have a happy faculty of methodizing and arranging
in a form for every day use, the aggregated wisdom of the past and present age. The treatise of
Lord Tenterden, is the only work extant professing to give a synopsis of the Law of Shipping.
It has been, as you know, republished here, with notes by Story, and revised again by Perkins ;
but, the effect of these republications and revisions has been to leave the text incumbered by
notes and burthened with nice distinctions, annotations and qualifications, from which the lay
reader with difficulty deduces a practical conclusion as to what the rule of law is on many points.
Your work seems to me eminently calculated to relieve the unlearned reader from perplexity ;
and it will serve the profession as a digest, and in that character alone save them much labor.
Respectfully,
Your ob'd't servant,
JOHN S. TYLER.
Francis B. Dixon, Esq.
TESTIMONIALS.
FROM THE HON. WILLIAM F. GILES.
Judge of the District Court of the United States for the District of Maryland.
Baltimore, June 13th, 1859.
Dear Sir :
I have given a brief examination to your new work," The Law of Shipping," but brief as this
review has been, I have seen enough to convince me of the practical character of your work,
and of the advantage and clearness of the plan you have chosen to impart information on the
subjects which you discuss Your Synopsis of the Revenue Laws, the Law of General Average,
and the Law of Marine Insurance, will render your work of great value to the mercantile commu¬
nity, while its varied information, and the numerous authorities you cite in support of your text,
will shorten the labors of the profession in the examination of questions arising under the mari¬
time law. To the Courts of Admiralty, the practising lawyers in our commeicial communities,
and to every merchant and ship-master your work will be found of much value.
I am, very truly yours
WILLIAM F. GILES.
Fkancis B. Dixon, Esq.
FROM JOHN THOMPSON MASON.
Collector of the Port of Baltimore, and late Judge of the Court of Errors.
\
Baltimore, June 13th, 1859.
Dear Sir :
I have examined, not very thoroughly, however, your new work on the Law of Shipping, and
have been very much gratified therewith. As far as I have been able to test its accuracy, I can
discover no errors in the principles announced. The treatise seems to cover the whole law to
which it professes to relate, and its general arrangement is admirable and complete. As far as
judgment may be worth anything, I can safely commend the woik to the legal profession.
I am, very respectfully,
Your obedient servant,
JNO. THOMPSON MASON.
Francis B. Dixon, ESq.
NOTICES OF THE PRESS.
BOSTON TRAVELLER.
u It is impossible to speak in terms too high, of the excellence of this work. The affluence of
knowledge it exhibits, the lucidity of its ai rangement, and the precision of its statements, all
unite to render it necessary to the large, important and intelligent classes of men for whom it
has been especially prepared. We cordially commend the volume to all who have an interest in
the subject, as one in every sense deserving of attention."
BOSTON POST.
" We have taken particular pains to examine the merits of this work, and we unhesitatingly
pronounce it the best treatise on the subject that has ever passed under our notice. To the busi¬
ness man it is of incalculable benefit. It supplies a want which has been felt and acknowledged
by business men in all parts of the country. This work should be in every counting-house."
BOSTON COMMERCIAL BULLETIN.
Cl This work, just issued, needs only to have its existence become known among merchants and
ship-masters to insure for it a place among the indispensable books used by them. Its contents
will enable the merchant, ship-owner and ship-master to have a right understanding of their legal
liabilities in relation to ship, cargo, freight, seamen, passengers, etc ; and, besides other subjects,
embraces the principles and practice of insurance in matters growing out of marine disasters.
Such a work has long been needed We take pleasure in commending it to the attention of all
interested in the matters of which it treats, and we believe it will be welcomed by commercial
men with signal favor, as it deserves."
NOTICES OP THE PRESS.
NEW YORK JOURNAL OF COMMERCE.
{« The work has been gotten up with much care and research, and will be of great value to the
classes of persons for whom it is intended."
NEW YORK COMMERCIAL.
" This book is a reliable authority in shipping and insurance matters, and is an essential hand¬
book to the ship-master and merchant."
WALL STREET UNDERWRITER.
u Practically, the best recommendation for any new work in art or litefhture is the fortunate
fact that the work is wanted. We can safely say that this new work was much needed by the
public. It will be found of the most useful character to every merchant, shipowner and sailor,
and we especially recommend it in all cases as an indispensable addition to " master's effects,"
before going to sea."
BALTIMORE AMERICAN.
u Every merchant may consult the pages of the ' Merchants' and Ship-masters' Guide' with
advantage, and much trouble as well as litigation will be saved, if this volume be put dn board
every sea-going vessel. In all cases of emergency a master of a vessel will be able to find out
his best course of action, and greatly promote the interest of his owners as well as his own."
SOUTHERN ARGUS.
li The commercial interest of this country is under lasting obligations to Mr. Dixon for the valua¬
ble contribution he has made to the department of maritime law. The learned author has but
answered an imperative demand in furnishing a manual of the law meeting all the requirements
of the commeicial community upon which the prosperity of our nation so largely depends. Those
who are fortunate enough to meet with this work, will deem it an indispensable fixture to the
counting room'' and state room. It must rank high among the standard legal works of our
country."
NAUTICAL ROUTINE AND STOWAGE,
with
SHORT RULES IN NAVIGATION.
BY JOHN MC LEOD MURPHY AND W. N. JEFFERS, JR.,
Price $2.50.
This is an exceedingly useful book to Ship-masters, It contains nearly every
improvement in marine equipments which has been recently adopted in the
merchant service ; and so fully illustrated as to afford the readiest and most
perfect explanation.
The evolutions comprise " Backing and Filling in a Tideway "•—"Reefing in
Stays"—" Construction of a Temporary Rudder," &c., &c.—the whole of which
have been critically examined and approved by some of the most experienced
and intelligent seamen of our mercantile marine.
The subject of Stowage is drawn from the most authentic sources, and em¬
bodies the rules and practice observed by the best stevedores.
To which is added, Short Rules in Navigation. The best evidence of the
merits of this work, is the extensive patronage it has received.