not liable for freight insured, if the master has lost the freight by his own act, in unwarrantably giving up the Voyage.1

§ 2199. Cargo Arriving Damaged.—If cargo insured against partial loss arrives at the port of destination in a damaged condition, the loss of the insured is deemed to be the same proportion of the value which the market price at that port of the thing so damaged bears to the market price it would have brought if sound."

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§ 2200. Insurer Liable for Labor and Expenses.—The insurer is liable for all the expenses attendant upon a loss. which forces a ship into port to be repaired; and generally for all expenses resulting as a direct and immediate consequence of a peril insured against. The insurer on the ship is not liable for any expense incurred specifically and exclusively for the benefit of the cargo; nor for any sum per diem agreed by the owner to be allowed the master while in port; nor for the wages of the crew while steamboat is detained by accident."

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§ 2201. "Suing and Laboring" Clause. A clause is often inserted called the "suing and laboring clause." This clause provides that in case of disaster the assured may labor, travel, and sue for the safeguard and recovery of the property, for the expense of which the insurer is to contribute in proportion to the amount insured by him to that of the whole property at risk." This clause extends

1 Clark v. Ins. Co., 2 Pick. 104; 13 Am. Dec. 400.

Cal. Civ. Code, sec. 2742; N. Y. Civ. Code, sec. 1509. See Lamar Ins. Co. v. McGlashen, 54 Ill. 513; 5 Am. Rep. 162.

Norwich etc. Trans. Co. v. Ins. Co., 34 Conn. 561; Young v. Ins. Co., 24 Fed. Rep. 279.

Hale v. Washington Ins. Co., 2 Story, 176; Perry v. Ohio Ins. Co., 5 Ohio, 305; Gazzam v. Cincinnati Ins. Co., 6 Ohio, 71.

5 Barber on Insurance, sec. 156.

Jolly v. Ins. Co., Wright, 539; May v. Delaware Ins. Co., 19 Pa. St. 312. A policy upon the hull of a steamboat, on time, does not cover expenses, or the ordinary wages of the crew, while navigating the boat into port for repairs after her foundering: Webb v. Protection Ins. Co., 6 Ohio, 456.

7 Yet if a vessel insured meets with a disaster, the captain and crew are bound diligently to labor for the recovery of the property; and the insertion

to all cases in which the insurer is saved from loss, whether partial or total, or whether an abandonment does or probably may take place or not.' But where the insurance is against total loss only, a claim for expenses incurred under the suing and laboring clause will be disallowed, where it is evident from the facts of the case that no danger of a total loss existed.2

§ 2202. General Average-Contribution.-The insurer is liable for what the insured has paid by way of contribution for the safety of their goods; i. e., general average.3 Loss incurred voluntarily to prevent greater loss is a general average loss. To constitute a case for general average, the vessel should be in distress, and a part should be voluntarily sacrificed to save the rest. A previous consultation is not necessary, nor that the part sacrificed should be in more imminent danger than the rest. The distinct property of several persons must be exposed to a common peril, and relief from that peril must be obtained. intentionally. To constitute a right of general average for goods jettisoned, there must concur, -1. A common peril affecting vessel and cargo; 2. A voluntary sacrifice. of the part jettisoned for the safety of the remainder; and 3. The deliverance thereby of the remainder from the peril. If goods are necessarily thrown overboard for the purpose of lightening the ship, the loss is to be made. good by the contribution of all, because it was incurred for the benefit of all. But the sacrifice being made for

of such a clause in the policy does not impose any additional duty upon the assured: Cincinnati etc. Ins. Co. v. May, 20 Ohio, 211.

Kidston v. Ins. Co., L. R. 1 Com. P. 544. See Lohre v. Atchison, L. R. 2 Q. B. 535.

2 Peninsular R. R. Co. v. Saunders, 1 Best & S. 41; 2 Best & S. 266; Booth v. Gair, 15 Com. B., N. S., 291; Kidston v. Empire Ins. Co., L. R. 1 Com. P. 535; L. R. 2 Com. P. 357. 3 Parsons on Maritime Law, 289.

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the safety of the vessel and remaining cargo, the owner of the goods bears no more than his just proportion of the loss thus incurred.' From the benefit of this right to contribution the owner of goods loaded above deck is excluded, on the ground that such loading is improper, tending to embarrass the movements of the crew and the working of the ship, except where it is shown that such mode of carrying the particular goods is according to the custom of trade. So the following are subjects of general average, viz.: Wages, provisions, and other expenses of the voyage to a port of necessity, for the purpose of making repairs; where the cargo is sent from the port of disaster to the port of destination by another vessel at a higher rate of freight than under the original contract; where the vessel is voluntarily stranded;" where the agent of a wrecking company was employed by the master of a shipwrecked vessel to raise and save the vessel and cargo, and thereby a quantity of petroleum was saved;' repairs to a ship rendered necessary by a voluntary stranding. Where goods insured by a valued policy are jettisoned for the common benefit, the underwriters are liable for the amount at which the goods are valued in the policy, though it may exceed their market value at the port of destination. In the adjust

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Wood v. Phoenix Ins. Co., 37 Leg. Int. 148; Miller v. Tetherington, 6 Hurl. & N. 278.

* The Paragon, 1 Ware, 322; Triplet . Van Name, 2 Cranch C. C. 332; Biays v. Chesapeake Ins. Co., 7 Cranch, 415; Toledo etc. Ins. Co. v. Speares, 16 Ind. 52; Cram v. Aiken, 13 Me. 229; 29 Am. Dec. 503; Taunton Copper Co. v. Merchants' Ins. Co., 22 Pick. 108; Lenox v. United Ins. Co., 3 Johns. Cas. 178; Smith v. Wright, 1 Caines, 43; 2 Am. Dec. 162; Meaher v. Lufkin, 21 Tex. 383; Doane v. Keating, 12 Leigh, 391; 37 Am. Dec. 671.

Lawson's Usages and Customs, c. 3. Potter v. Ocean Ins. Co., 3 Sum. 27; Thornton v. United States Ins.

Co., 12 Me. 150; Walden v. Leroy, 2 Caines, 262; 2 Am. Dec. 236; Henshaw v. Marine Ins. Co., 2 Caines, 274; Barker v. Phoenix Ins. Co., 8 Johns. 307; 5 Am. Dec. 339; Rogers v. Murray, 3 Bosw. 357; Hanse v. Ins. Co., 10 La. 1; 29 Am. Dec. 456. But see Dunham v. Ins. Co., 11 Johns. 315, 6 Am. Dec. 374.

98.

McLoon v. Cummings, 73 Pa. St.

6 Rathbone v. Fowler, 6 Blatchf. 294; O'Connor v. The Ocean Star, 1 Holmes, 248.

7 Jones v. Bridge, 2 Sweeny, 431. 8 Northwestern Trans. Co. v. Continental Ins. Co., 24 Fed. Rep. 171. 9 Forbes v. Ins. Co., 1 Gray, 371.

ment of partial losses in cases of general average, valued policies are to be treated like open policies.1

Where a person insured by a contract of marine insurance has a demand against others for contribution, he may claim the whole loss from the insurer without demanding payment of contribution or delaying until an adjustment. of the average is made subrogating him to his own right to contribution. But no such claim can be made upon the insurer after the separation of the interests liable to contribution, nor when the insured, having the right and opportunity to enforce contribution from others, has neglected or waived the exercise of that right.

§ 2203. One Third New for Old. In the case of a partial loss of a ship or its equipments, the old materials are to be applied towards payment for the new; and whether the ship is new or old, a marine insurer is liable for only two thirds of the remaining cost of the repairs, except that he must pay for anchors and cannon in full, and for sheathing-metal at a depreciation of only two and one half per cent for each month that it has been fastened to the ship. This deduction of one third new for old is made as well from the cost of temporary repairs at the port of necessity, including the necessary expenses of raising money therefor, as from the cost of permanent repairs.5

1 Clark v. Ins. Co., 7 Mass. 365; 5 Am. Dec. 50.

2 Faulkner v. Ins. Co., 2 McMull. 158; 39 Am. Dec. 119.

3 Cal. Civ. Code, sec. 2745; N. Y. Civ. Code, sec. 1512; Jumel v. Ins. Co., 7 Johns. 412; 5 Am. Dec. 283; Maggrath v. Church, 1 Caines, 196; 2 Am. Dec. 173; Hanse v. Ins. Co., 5 La. 379. The liability of a cargo to contribute, in general average, in favor of the ship, does not continue after the cargo has been completely separated from the vessel, so as to leave no commu

nity of interest remaining: McAndrews v. Thatcher, 3 Wall. 347.

Cal. Civ. Code, sec. 2746, N. Y. Civ. Code, sec. 1513; Barber on Insurance, sec. 159; Dunham v. Ins. Co., 11 Johns. 315; 6 Am. Dec. 374.

5 Barber on Insurance, sec. 159: Paddock v. Commercial Ins. Co., 104 Mass. 535, citing Brooks v. Oriental Ins. Co., 7 Pick. 259; Orrok v. Commercial Ins. Co., 21 Pick. 456; 32 Am. Dec. 271; Lincoln v. Hope Ins. Co., 8 Gray, 22, 26. Aliter in England: Hopkins on Average, 149.

CHAPTER CIV.

OTHER KINDS OF INSURANCE.

§ 2204. Guaranty insurance - Insurance against dishonesty and negligence. § 2205. Insurance against bankruptcy, and of payment of debts - Rents—

Titles.

$2206. Insurance of animals.

§ 2207. Storms - Hail.

$2208. Against birth of issue.

§ 2204. Guaranty Insurance Insurance against Dishonesty and Negligence. There is a species of insurance of modern date in England, and of more recent date in this country, whereby the insurer guarantees to indemnify the insured from loss through the negligence, fraud, or dishonesty of his agents or servants. In such a contract a statement in the application that the officer's accounts would be examined at certain times was held a representation, and not a warranty, and that the insured might recover for a loss resulting from the dishonesty of the officer, though it was also caused by the neglect of the insured to examine his accounts.' But a statement as to the amount of money which the employee would have in his hands at any one time has been held to be a warranty, and if false, a bar to recovery. A representation that a town treasurer's accounts shall be from time to time audited, and that money shall only be drawn in a certain way, must be substantially complied with, or no recovery

can be had. A representation that the person whose fidelity, etc., is insured "has never been in arrears or default in his accounts" covers arrears and defaults prior to the time when he entered the service of the person insured. Where the policy insuring against embezzlement