exceed the sum to be paid for the freight of it, this is not such a loss as is to be borne by the underwriters. Wilson v. Smith, 3 Burr. 1550. -Mason v. Skurray, Sittings after Hilary Term, 1780.-Cocking v. Fraser, K. B. 25 Geo. III. The case of M' Andrews v. Vaughan, (Sittings at Guildhall, after Mich. 1793,) was an assurance on fruit from Lisbon to London. The ship was captured and recaptured, brought into Portsmouth, and afterwards arrived at London: but the cargo, by the capture, recapture, and consequent length of the voyage, had sustained a damage of £80 per cent. The assured never heard of the capture till the ship was safe at Portsmouth, and then he offered to abandon. Lord Kenyon said, "as there had been no stranding, there cannot be a recovery for a partial loss. Had the plaintiff heard of the capture only, he might have abandoned; but he heard nothing of the accident till the ship was in safety. The cargo arrives at the port of destination, and though it is good for very little, yet it has been invariably holden, that either the voyage must be lost, or the cargo (if it be one of those mentioned in the memorandum) must be wholly and actually destroyed to entitle the insured to recover." The plaintiff was accordingly nonsuited. For, as to these articles, the underwriters are liable for partial losses in two cases only, viz. that of a general average, or if the ship be stranded.-Nesbitt v. Lushington, 4 T. R. 783. But, in the long disputed case of Burnett v. Kensington, (7 Term Rep. 210,) two questions on this subject came under consideration: the first was, What should be deemed to be a stranding? and the second was, Whether the loss must actually arise from the stranding? It was on a policy of assurance on fruit, on board the Commerce, at and from Malaga, to Plymouth and Portsmouth. On the 30th of November, 1794, the ship sailed from Malaga with a cargo of lemons and oranges; on the 29th of January, 1795, she arrived off Scilly; and, between seven and nine in the morning of that day, struck on a sunken rock; she did not remain on the rock; but, in consequence of her striking thereon, several of her planks were started, and the water immediately after flowed into the hold and over the cargo, and continued to increase in the hold for about three hours and a half. About twelve o'clock on the same day, the ship was stranded, on the beach at Scilly, by the captain, under direction of a pilot, who had come on board her from the shore, in order to save the ship and cargo. The ship continued some time upon the beach, during which time the water again flowed in, and over part of the cargo, at the return of the tide. The ship afterwards proceeded on her voyage, and arrived at Plymouth on the 24th of February following. The cargo of fruit was very much damaged; and a small part thereof left at Scilly, being entirely unfit for use. The ship received no damage in consequence of the stranding; the damage she received was entirely from the rock on which she struck part of the damage the cargo received was occasioned by the water flowing into the ship previous to her being laid on the beach, and part was occasioned by the water that flowed in subsequent to the time of her being laid on the beach: but the cause of the water flowing in arose entirely from the ship striking on the rock, and not from any mischief done to the ship by the stranding. These were the facts of the case, which, however, had been tried four times before they could be so agreed on. The jury at length determined, that although the ship was gotten off without any damage, yet it was a stranding, and the court declared the law to be, that, as a stranding had happe fide, and without any fraudulent design, the condition had which rendered the underwriter liable for a partial loss, altho damage sustained was not occasioned by the stranding. In a later case at Guildhall, Lord Kenyon told the jury, th ship's running on some wooden piles, four feet under water, eree on Wisbeach river, to keep up the banks of the shore, and laying o such piles till they were cut away, was a stranding, within the policy. Dobson v. Bolton; sittings after Easter, 1799.-Where a ship was stranded, and the cargo, consisting of hogsheads of sugar, was all got ashore, each hogshead containing some, though but little, sugar, and nearly all damaged, it was holden that the jury were well warranted in finding this to have been an average loss only.-Hedburgk v. Pearson, 7 Taunt. 154. The damage sustained by a partial loss must be ascertained by the difference between the respective gross proceeds of the same goods when sound and when damaged, and not the net proceeds.-Johnson v. Sheddon, T. R. Trin. T. 42 Geo. III.; Harvy v. Erch. Ass. Co. 3 Bos. & Pul. 308. When the quantity of damage sustained in the course of the voyage is known, and the amount, which each underwriter of the policy is liable to pay, is settled, it is usual for the underwriter to endorse on the policy, "adjusted this loss at so much per cent." or some words to the same effect. This is called "an adjustment.” After an adjustment is signed by the underwriter, if he refuse to pay, the owner has no occasion to go into a proof of his loss, or any of the circumstances respecting it, unless fraud were used in obtaining the adjustment: or unless there had been some misconception of the law or fact upon which it was made. Rogers v. Maylor, Sitt. after Trin. 1790, and De Garron v. Galbraith, Mich. T. 36 Geo. III. If any assurer pay money for a total loss, and in fact it be so at the time of adjustment; if it afterwards turn out to be only a partial loss, he shall not recover back the money so paid to the assured; for, substantial justice is done by putting him in the place of the assured, and giving him all the advantages that arise from the salvage.-Da Costa v. Frith, 4 Burr. 1766.-But where a ship was insured warranted free of capture in port, a letter announcing her capture, stated it to be in port, on which the underwriter and insured adjusted. It afterwards precluded by the adjustment aud repayment from recovering on the appeared the capture was not in port. Held that the assured was not policy.-Reyner v. Hall, 4 Taunt. 725. 7. GENERAL AVERAGE. Whatever the master of a ship does in distress for the preservation of the whole, in cutting away masts or cables, or in throwing goods overboard to lighten his vessel, which is what is meant by jettison or jetson, is permitted to be brought into a general average: in which all who are concerned in ship, freight, and cargo, are to bear an equal or proportionable part of the loss of what was so sacrificed for the com mon welfare; and it must be made good by the assurers in such proportions as they have underwritten.-1 Magens, 55. See ante, commencement of the preceding division. In order to make the act of throwing the goods overboard legal, the ship must be in distress, and the sacrificing a part must be necessary to preserve the rest. If a ship ride out the storm, and arrive in safety at the port of destination, the captain must make regular protests, and must swear, in which some of the crew must join, that the goods were cast overboard for no other cause but for the safety of the ship and the rest of the cargo, Beawes, 148. Molloy, 1, 2. c. 6, s. 2. There can be no contribution (which is another word used frequently for this species of average) without the ejection of some goods, and the saving of others: but it is not always necessary for the purpose of contribution, that the ship should arrive at the port of destination. If the jettison does not save the ship, but she perish in the storm, there shall be no contribution of such goods as may happen to be saved; because the object for which the goods were thrown overboard was not attained. But if the ship, being once preserved by such means, and continuing her course, should afterwards be lost, the property saved from the second accident shall contribute to the loss sustained by those whose goods were cast out upon the former occasion.2 Magens, 98. 240. It is hardly necessary to state, with minuteness, the various accidents and charges that will entitle the party suffering to call upon the rest for a contribution; because we may refer them all to this principle, that all losses sustained, and expenses incurred, voluntarily and deliberately, with a view to prevent a total loss of the ship and cargo, ought to be equally borne by the ship and her remaining lading.-Magens, 86. 183. It is not only the value of the goods thrown overboard that must be considered in a general average, but also the value of such as receive any damage by wet, &c., from the jettison of the rest.-Beawes, 148. Molloy, 1, 2. c. 6, s. 8. If a ship be taken by force, carried into some port, and the crew remain on board to take care of and reclaim her, not only the charges of reclaiming shall be brought into a general average, but the wages and expense of the ship's company during her arrest, from the time of her capture, and being disturbed in her voyage.-Beawes, 150. fo. But sailors' wages and victuals, when they are under the necessity of performing quarantine, (in which case the master would have been obliged to maintain and pay them, though his vessel had arrived only in ballast,) do not come into general average, yet charges, occurring by an extraordinary quarantine, shall be brought into a general average. So, likewise, where a ship is obliged to go into port for the benefit of the whole concern, the charges of loading and unloading the cargo, and taking care of it, and the wages and provisions of the workmen hired for the repairs, become general average.-Da Costa v. Newnham, 2 T. R. 407. By the ancient laws of Rhodes, Oleron, and Wisbuy, the ship and all the remaining goods shall contribute to the loss sustained. The most valuable goods, though their weight should have been incapable of putting the ship in the least hazard, as diamonds or precious stones, must be valued at their just price in this contribution, because they could not have been saved to the owners but by the ejection of the other goods. Neither the persons of those in the ship, nor the ship provisions, nor the respondentia bonds, suffer any estimation; nor does wearing apparel in chests and boxes, nor do such jewels as belong to the person merely; but if the jewels are a part of the cargo, they must contribute. Those who carry jewels by sea ought to communicate that circumstance to the master; because the care of them will be increased in proportion to their worth, to prevent them being thrown overboard promiscuously with other things; and hence their preservation will be a common benefit.-1 Magens, 63. The wages of sailors are not to contribute to the general loss; a provision intended to make this description of men more easily consent to a jettison, as they do not then risk them at all, being still assured that their wages will be paid.-1 Magens, 71. The way of fixing a right sum, by which the average ought to be computed, can only be by examining what the whole ship, freight, and cargo, if no jettison had been made, would have produced net, if they all had belonged to one person, and been sold for ready money. And this is the sum whereon the contribution should be made, all the particular goods bearing the net proportion.-1 Magens, 69. Gold, silver, and jewels, contribute to general average, according to their full value, and in the same manner as any other species of merchandise.-1 Magens, 62; and Peters v. Milligan, Sittings at Guildhall, after Michaelmas, 1787. The contribution is in general not made till the ship arrive at the place of delivery; but accidents may happen, which may cause a contribution before she reach her destined port. Thus, when a vessel has been obliged to make a jettison, or by the damages suffered, soon after sailing, is obliged to return to her port of discharge, the necessary charges of her repairs, and replacing the goods thrown overboard, may then be settled by a general average.-1 Magens, 60. From the result of the adjoined action, this conclusion is deducible. If A. let his ship to B., and engages to keep it in repair during the whole time of the voyage; for which A. is to receive freight at the return of the ship; and if, for safety, it be necessary to refit at some port, the expense of refitting must be borne by A.; nor is B. liable, if he have an interest in the cargo, to contribute his proportion as in a general average. Thus The plaintiff Jackson, owner of the Britannia, let her to hire, in 1796, to the defendant, for a voyage from London to India and back again. The ship arrived safely at Bengal. On her return, a partial jettison being necessary for the general safety, it was performed by throwing overboard some spare materials and part of the cargo. lightened, she arrived at Table Bay, at the Cape of Good Hope, 16 Feb. 1797. In pursuance of the opinion expressed by the agents for all parties, the ship was surveyed and repaired. The amount of the repairs, and other incidental charges thence accruing, was £4395, 48. 6d. Qu. Is the defendant liable to such general average as arises from the goods thrown overboard, or also, to general average on the repairs, &c., at the Cape of Good Hope? The defendant not to bear any part of the expense incurred at the Cape.-Jackson and another, v. Charnock, 6 E. R. 509. It is necessary here to add, that, as all sums which are paid on account of general average may be recovered by action from the underwriters, so any person, whose goods have been thrown overboard, or who had expended money, for the general preservation of ship and cargo, may obtain repayment by application to a court of equity for a general contribution. (See the case of Dobson v. Wilson, An action will not lie in this country to recover back money paid upon an average loss adjusted at St. Petersburg, according to the laws of Russia, (the consignor and consignee of the goods, and the owner of the vessel being British subjects,) although by the law of England an average loss would not be payable under the circumstances. Simonds v. White, 4 Dowl. & Ryland, 375. The following EXAMPLES of adjusted Averages are here subjoined. The Seahorse, Captain Dix, laden with hemp, flax, and iron, bound from Riga to London, ran on shore, coming through the Grounds at Elsinure; the captain hired a great number of men and several lighters to lighten the ship and get her afloat again; which was soon done, but he was obliged to pay £120 for their assistance. This expense being incurred to preserve both ship and cargo, the average must consequently be general. When the ship arrived at London, the captain immediately made a protest and an average-bill:. he then went to the merchant, to whom his goods were addressed, to have it signed, and to know the value of each man's property. Average accruing to the ship Seahorse, from Riga to London, in 1782, for assistance in getting off the strand of Elsinure. To sundry charges paid at the Sound, for lighters and Protests and postages... £8. d. 120 0 0 2 0 0 £122 0 0 Should the ship arrive at London, she will make £700 0 0 £700 freight... Wages for all the people, 3 months and 10 days..... £139 10 0 250 0 0 If £11,800 loss give £122, what will £100 loss give? |