surance. a Park on In- of discharge. However, Molloy is a more modern authority; and Magens says, that the prevailing mode of settling averages now adopted in England is conformable to that rule, which has abolished the distinction. Gold, silver, and jewels, at most places contribute to a general average, according to their full value, and in the same manner as any other species of merchandise. It has been said, that an immemorial custom has prevailed at Amsterdam, that gold and silver shall only contribute for half their value: the reason for such a custom one is at a loss to conjecture. In England no such custom prevails, but money and jewels must fall into the general average at their full price; and a modern writer assures us, that the practice was such in London when he wrote; and such I believe it to be at this day; and the doctrine here advanced was mentioned and confirmed by Mr. J. Buller as clear law.d When contribution made. Extent of under writer's liability. 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 damage suf. fered soon after sailing, is obliged to return to her outset port; the necessary charges of her repairs, and the replacing the goods thrown overboard, may then be settled by a general average.f Thus I have endeavoured to lay before the reader an idea of what is meant by average; and, in order to do that more distinctly, I have defined what average is; I have shown its origin, and what the necessary requisites are to render the act, whence averages arise, legal. I then stated, in general, what accidents or expenses would authorise the sufferer to call for a contribution; the different kinds of property that were subject to such contribution; and lastly, the mode by which the value of this property was to be ascertained. It only remains now to state that the insurers are liable to pay the insured for all expenses arising from general average, in proportion to the sums they have underwritten. Roccus says, "Jactu facto, ob maris tempestatem, pro sublevanda navi, an teneantur assecuratores ad solvendum æstimationem rerum jactarum domino ipsarum? Dic eos non teneri, quia pro rebus jactis fit contributio, inter omnes merces habentes in illa navi pro solvendo pretio domino ipsarum, et ideo si assecuratus recuperat pretium rerum jactarum, non potest agere contra assecuratores; tamen tenentur assecuratores ad reficiendum illam ratam et portionem, quam solvit assecuratus in illam contributionem faciendo inter omnes, habentes merces in illa navi, quæ portio cum non recuperetur ab aliis, habetur pro deperdita, et proinde ad illam portionem tenentur assecuratores." The opinion of this learned civilian is agreeable to the laws of all the trading powers on the continent of Europe, as well as to those of England, where the insurer, by his contract, engages to indemnify against all losses arising from a general average. In general, it seems better to apply for contribution to a court of CHAP.VIII. equity, where effectual relief may be obtained against all the parties in one suit. A shipper of goods may maintain an action at law for general average, as well as the owner of the ship.b The owner having effected an insurance does not affect his right to general average; for the law of average and contribution had existed for ages before the practice of insurance was known.c CHAPTER VIII. SALVAGE is so necessarily connected with the two former chapters, that it will be proper to take it into consideration here, before we proceed to the other parts of this inquiry. By the law of England, every person who acts or is employed in any way in the saving or preserving of any ship or vessel in distress, or of any part of the cargo thereof, or of the life of any person on board the same, or of any wreck of the sea, or of any goods, jetsam, flotsam, lagan, or derelict, or of any anchors, cables, tackle, stores, or materials which may have belonged to any ship or vessel, is entitled to a reasonable reward.e The propriety and justice of such an allowance must be evident to every one; for nothing can be more reasonable than that he who has recovered the property of another from imminent danger, by great labour, or, perhaps, at the hazard of his life, should be rewarded by him who has been so materially benefited by that labour.f Accordingly, all maritime states, from the Rhodians down to the present time, have made certain regulations, fixing the rate of salvage in some instances, and leaving it, in others, to depend upon the particular circumstances; and the law of England, the decisions of which are not surpassed by those of any other nation in justice and humanity, was not backward in adopting a doctrine so equitable in its nature and so beneficial to those whose property was endangered.h The two main ingredients in all salvage-service are the danger to which the property is exposed, and the danger encountered by the claimants in its rescue: upon these two particulars mainly depends the measure of compensation. The Court of Admiralty had no power a Com. Dig. tit. Ch. 2 c.; Shepherd v. Wright, Shower's P. C. 18. b Berkeley v. Presgrave, 1 East, 220; Dobson v. Wilson, 3 Camp. 487. c Price v. Noble, 4 Taunt. 123. d See Smith's Merc. L., tit. Salvage, post, p. 251. e 9 & 10 Vict. c. 99, s. 19; the West minster, 1 Wm. Rob. 229; the D. of f Kaim's Princ. of Eq. Intr. p. 6. i n. (e.) E Park on before 9 & 10 Vict. c. 99, to decree a salvage-reward for the preserInsurance. vation of life only.a Again, salvage-reward is for benefit actually conferred in the preservation of life or property, and not for mere meritorious exertions.b The officers and crews of H.M.'s ships are entitled to salvage-reward upon the same footing as other salvors.c So may a pilot be entitled to it.d Amount on wreck. Salvors, it should also be observed, may be curtailed, or even deprived altogether of the remuneration, through error, misconduct, or want of skill or capacity in the performance of the service. Even when essential service has been rendered to a vessel, subsequent misconduct may produce a forfeiture of it. As the propriety of such an allowance is admitted by all, the only difficulty that can arise upon the subject is to ascertain in what proportions these gratuities and rewards must be allowed. The laws of Rhodes fixed the rate of salvage in several instances, sometimes giving th of what was saved, at other times onlyth, and at others. The regulations of Oleron left it more unsettled, and declared that the courts of judicature should award to the salvors such a proportion of goods saved as they should think a sufficient recompense for the service performed and the expense incurred. Almost every state has regulations on this head peculiar to itself; and the legislature of this country has, by various statutes, expressed its ideas upon the subject. I shall first consider what rule it has established in cases of wreck, and then what the rate of salvage is in cases of recapture. When a ship has been wrecked, the law of England has followed the laws of Oleron in declaring that reasonable salvage only shall be allowed. In salvage cases the usage of the Admiralty Court except in the instance of bullion, is to take the whole value of the' ship and cargo, and assess the amount of the remuneration upon the whole, each paying its due proportion. In the apportionment of salvage, the Court is not influenced by the fact of the vessels being insured. We have formerly seen that, when the ships or goods of British subjects were retaken from an enemy, the original owner was entitled, by the marine law, to have them restored, upon paying to the recaptors a reasonable salvage, provided the recapture was before condemnation. It was also observed, that the statute law had extended the right of the original owner; so that he was entitled to have his ship and goods restored to him, whether they were retaken after condemnation or before, however distant the time of recapture Amount on might be from that of the original taking. The same statute has also fixed the precise rate of salvage which, in the various instances mentioned in the act, the recaptors should be entitled to demand. But the rate of salvage has been since altered, and is now, in all cases, however long the ship has been in the enemy's possession, to recapture. a The Zephyrus, 2 Wm. Rob. 329. c The Wilsons, 1 Ib. 172; see 16 & 17 Vict. c. 131. d The Hebe, Ib. 250. e The D. of Manchester, 1 Ib. 475. f Leg. Oler., art. 4. See 9 & 10 Vict. c. 99, s. 19, "An k Act for consolidating and amending the Laws relating to Wreck and Salvage," post, 251. h The Emma, 2 Wm. Rob. 309. i The Devereux, 1 Ib. 180. 13 Geo. 2, c. 4, s. 18; 29 Geo. 2, c. 34, s. 24. be th if the recapture has been made by any of H. M.'s ships, and CHAP.VIII. 4th if made by a privateer or other ship." It is said in the statute, that the salvage shall be a proportion of the ships and goods so restored; but a writer upon mercantile law observes, that the wearing apparel of the master and seamen are always excepted from the allowance of salvage. The statute has also How adsaid it must be th, or 4th, &c., of the true value. Now, the valua- justed. tion of a ship, in order to ascertain the rate of salvage, may be determined by the policy of insurance, if there is no reason to suspect she is undervalued; and the same rule may be observed as to goods where there are policies upon them. If that, however, should not be the case, the salvors have a right to insist upon proof of the real value, which may be done by the merchant's invoices, and they must be paid for accordingly. The only question then is, how far the insurers are affected by this allowance of salvage. By their own contract, they expressly agree to indemnify the insured against such charges. "And in case of any loss or misfortune, it shall be lawful for the assured, their factors, servants, and assigns, to sue, labour and travel for, in and about the defence, safeguard, and recovery of the said goods and merchandises, and ship, &c., or any part thereof, without prejudice to this insurance; to the charges whereof we the assurers will contribute, each one according to the rate or quantity of his sum herein assured." In Mitchell v. Edie,d Mr. J. Ashurst said, it seemed to him, that the meaning of this clause was, that till the assured have been informed of what has happened, and have had How insuran opportunity of exercising their own judgment, no act done by ers affected. the master shall prejudice their right of abandonment. In order to entitle the insured to recover the expenses of salvage, it is not necessary to state them in the declaration as a special breach of the policy; because an insurance is against all accidents, and salvage is an immediate and necessary consequence of some of those stated in a policy. But although the insured may recover from the insurer the expenses of salvage, yet he shall only be entitled to an indemnity, and shall not receive a double satisfaction for the same loss. Thus if the insurer should have paid to the insured the expenses arising from salvage; and afterwards, on account of some particular circumstances, the loss should be repaired by some unexpected means, the insurer shall stand in the place of the insured, and receive the sum thus paid to atone for the loss.f From what has been said it will be evident that a loss of salvage is, per se, only an average one. Cases, however, may and do frequently arise, where the salvage is so high, the other expenses are so great, and the object of the voyage is so far defeated, that the insured is allowed, by the laws of all trading nations, to abandon his interest in the property saved to the insurer, and to call upon a 43 Geo. 3, c. 160, s. 39. b Beawes, Lex. Merc. 147. c Ib. d 1 T. R. 608. e Carey v. King, Cases temp. Hardw. 304. f Randall v. Cockran, 1 Vez. 98. surance. Park on In- him to contribute as if a total loss had actually happened. What circumstances shall be deemed sufficient to justify the insured in making such an abandonment, will be the subject of the following chapter. CHAPTER IX. ABANDONMENT.a We have formerly seen, that the insured, before he can demand a recompense from the underwriter for a total loss, must cede or abandon to him his right to all the property that may chance to be recovered from shipwreck, capture, or any other peril stated in the policy. It has also been observed, and from the preceding sentence it is obvious, that when we speak of a total loss, with respect to insurances, we do not always mean that the thing insured is absolutely lost and destroyed, but that by some of the usual perils it is become of so little value, as to entitle the insurer to call upon the underwriter to accept of what is saved, and to pay the full amount of his insurance, as if a total loss had actually happened. Indeed, the word abandonment conveys the idea that the whole property is not lost; for it is impossible to cede or abandon that which does not exist. When the underwriter has discharged his insurance, and the abandonment is made, he stands in the place of the insured, and is entitled to all the advantages resulting from that situation. From what has been said, then, it appears that abandonment dates its origin from the period at which the contract of insurance was itself introduced; because insurance being a contract of indemnity, the insured can recover no more than the amount of the loss actually sustained, unless the parties expressly stipulate for more :d but if he were allowed to recover for a total loss, and might also retain the property saved, he would be a considerable gainer. Accordingly we find that the doctrine of abandonment has obtained a place in the laws of all the maritime nations in the world where insurance has been known, and in all those laws the definition of it is the same; namely, that when any goods or ships that are insured happen to be lost, taken, or spoiled, the insured is obliged to abandon such goods or ships for the benefit of the insurers, before he can demand any satisfaction from them. In this respect, also, they e a See Gorham v. Sweeting, 2 Wms. Saund. 203, n. i. b Ante, Ch. VI.; Pothier's Traité du Contr. d'Ass. 133. See Randall v. Cockran, 1 Vez. 98 ; Roux v. Salvador, 3 Bing. N. C. 275; d Irving v. Manning, 6 C. B. 422. |