Particular and petty average. down by the courts, will not constitute a custom, which can be impliedly incorporated in a contract between a shipowner and an owner of cargo (g). CASES. 1. A ship, having encountered bad weather, put into Leghorn to repair. The owner petitioned the Commercial Court of Pisa to adjust the general average. The court, according to its usual course, adjusted it by charging the cargo at its full value, the ship at half, and the freight at one-third. Held, that this adjustment bound the underwriters (h). 2. During a voyage from Liverpool to Montreal the plaintiff's goods sustained damage, which fell under the heading of general average. The ship returned to Liverpool and the cargo was handed over by the shipowners to a company, to be distributed for the benefit of the parties concerned, but without their in any way assisting the bailees, underwriters, or the owners of the damaged goods to get an average statement made out, or to enable contribution to be recovered. Held, that the shipowners were liable to an action by the plaintiff for not taking proper steps to secure an adjustment and payment of general average (i). 3. Wheat, shipped from Varna to Marseilles, was insured by a policy containing the usual memorandum against average, unless general, and the following term: "General average as per foreign statement." During the voyage the ship sprung a leak, and onefifth of the wheat was found, on a survey, to be thereby damaged. On the advice of the surveyors, an adjustment of average in respect of the ship and cargo was made at Constantinople, the damage to the wheat being treated as general average. The average was adjusted in conformity to the law of France, which was the proper course, according to the law and usages prevailing at Constantinople. By English law the damage to the wheat would not be a general average loss. Held, that the adjustment was rightly made at Constantinople, and that the underwriters were liable in respect of the damage done to the wheat (k). $ 124. Beside general average there exist two other kinds of average, viz., particular and petty. (g) Svendson v. Wallace, 46 L. T. 742; and see Bk. II. Ch. X. p. 324. (h) Newman v. Cazalet, 2 Park, Ins. 630. (i) Crooks v. Allan, 5 Q. B. D. 38. (k) Mavro v. Ocean Mar. Ins. Co., L. R., 10 C. P. 414. Particular average is the loss accidentally and proximately caused by the perils insured against, to the subjectmatter of the insurance. The loss in particular average, instead of falling on all interested in the voyage, as in general average, falls solely on the owner of the property lost (1). The term petty average will include the small charges, always necessarily incurred in voyages of considerable duration, and defrayed by the master, for the purposes of the ship and cargo; such as pilotage, towage, river, beaconage, and anchorage charges (1). Of course, wherever the charges are incurred for any extraordinary purposes, or to save the ship and cargo, they will be the subjects of a general average. The underwriter is never liable for petty averages; but he is liable for any special expenditure properly incurred to prevent or mitigate a loss, by virtue of his express stipulation to be liable under the sue and labour clause (m). (7) Stevens on Av. 3; Arnould, Mar. Ins. pt. 3, c. 5. (m) See Book II. Ch. II. p. 234, as to sue and labour clause. BOOK II. THE LAW OF MARINE INSURANCE. CHAPTER I. INSURANCE, INSURERS AND INSURED. § 125. what. INSURANCE is a contract, by which one party, in considera- Insurancetion of a premium equivalent to the hazard run, undertakes to indemnify another party against a particular event (a). The instrument embodying this contract is termed a policy of insurance. Maritime or Marine Insurance occurs when a merchant pays a premium to some other person or persons with the object of insuring against certain sea risks his goods or vessel, or interest therein, from one port or district to another port or district, or during a certain period, on the terms mutually agreed on between the parties. The party who agrees to indemnify is termed the insurer, and after subscribing the policy he is called the underwriter. The party indemnified against the particular event is termed the insured or assured. The voyage insured must be a legal voyage; for if it be prohibited by law (b), or if the cargo insured is intended to be forwarded to an enemy without the royal licence (trading with an enemy without the king's licence being illegal), the policy will be null and void (c). (a) 2 Bl. Com. 458. (b) See post, Chap. IX. p. 316. (c) Camden v. Anderson, 6 T. R. 723; Johnston v. Sutton, 1 Doug. Insurers and insured-who can be. Unauthorized insurances
$126. Any individual, partnership, or corporation may be either the insurers or the insured (d). But this rule is subject to two exceptions. For an alien enemy during war cannot effect a valid policy (e); unless his vessel or goods be protected by the royal licence (ƒ). On similar grounds of public policy, a British subject trading under the protection of and for the advantage of a hostile country, cannot avail himself of a marine policy made in this country (g). Although the insured only becomes an alien enemy after the loss, he cannot sue while the war lasts; but he can on peace being re-established (1⁄2). A partner has an implied authority to insure, on behalf of the firm, the partnership property. A policy, however, effected by one of several part owners of a ship or goods, will not bind the other part owners, unless they authorized it or subsequently ratify it, even though the part owner who effected the insurance were the ship's husband (i). A ratification of an unauthorized insurance by the person ratification of. on whose behalf it was made, will be binding; and in marine insurance it is not necessary that the ratification should take place during the continuance of the risk (k). Accordingly, a policy effected by one person for another, this §. 254; Delmada v. Motteur, 1 Park, (d) The members of Lloyd's, with (e) Brandon v. Nesbitt, 6 T. R. 23; Bristow v. Towers, 6 T. R. 35; Furtado v. Rogers, 3 B. & P. 191; Gamba v. Le Mesurier, 4 East, 407; Kellner v. Le Mesurier, 4 East, 396. (f) Kensington v. Inglis, 8 East, 273; Usparicha v. Noble, 13 East, 332; see "Cases" (1) at end of (g) M'Connel v. Hector, 3 B. & P. 113; Willison v. Patteson, 7 Taunt. 438. (h) Flindt v. Waters, 15 East, 260. (i) French v. Backhouse, 5 Burr. 2728; Bell v. Humphries, 2 Stark. 345; Robinson v. Gleadow, 2 Bing. N. C. 156; see "Cases" (2) at end of this ; Lindsay v. Gibbs, 28 L. J., Ch. 692. (k) Lucena v. Craufurd, 2 B. & P. N. R. 269 (H. L.); Routh v. Thompson, 13 East, 274. |