the venture. In some cases the authority of the captain is accepted or even preferred. Occasionally a supplementary authority is obtained from underwriters on such interests as are known to be insured with them, or such as they care to acknowledge the insurance of. This is done partly with a view to full authorisation of the person or persons engaged in the operations, and partly with a view to the proper final incidence of the expenses. The reference to charges and the underwriter's undertaking to contribute a proper proportion, found in the clause does not exhaust the question of incidence. For while the clause certainly renders the underwriter liable for all or some of the expense incurred in defending, etc., the property he has insured, there is within the policy no means of determining the amounts to be paid by the underwriters of different parcels of goods. Each policy of insurance being a contract entirely independent of all others running at the same time (unless in cases of double or multiple insurance, or of policies containing express reference to others), there is no solidarity 1 of underwriters. In practice the apportionment of the expenses has to be made quite apart from any consideration of insurance and in connection with the contract of affreightment; the amounts incurred being paid by the owners (or consignees) of the separate interests in proportion to the benefits received from the operations as indicated by the values saved. All that the words of the policy now under consideration mean is that the underwriter on any particular interest shall bear the same proportion of the expenses incurred on behalf of these goods as his subscription bears to the value named in the policy. Even in this limited application a difficulty may arise should the expenses incurred in the "suing and labouring operations exceed the values recovered. If the expenses have been incurred in good faith by an agent sent to the scene of the disaster on the suggestion or selection of the underwriters, they seem to be properly chargeable to the underwriters. Even if the case were managed entirely by the shipmaster, or some agent of his, 1 Solidarité (Fr.) = joint-and-several liability.

then probably the only question that can be raised is whether the person in charge acted in good faith and to the best of his ability: if so, and if his action averted a loss from the underwriters, the expenses seem equitably to fall on them. But in both of these cases it is assumed that the real value of the goods is not in excess of the amount insured; in other words, that the owner is not his own underwriter for part of the value. If he is his own underwriter then he is, to the amount not covered elsewhere, interested in the results of the operations and must bear his proportionate share of the expenses.

It is evident that the cost of operations, such as reconditioning of cargo if incurred at an intermediate port, may form a sue and labour expense, while it becomes, if incurred at port of destination, the means of estimating the amount of damage suffered by the cargo. When the question of particular average comes to be discussed, it will become apparent that in many cases expenses are in the first case recoverable from underwriters, while in the second, in consequence of the conditions of the policy regulating the underwriter's liability for damage (as distinguished from total loss), they are not so recoverable.

There is a somewhat parallel diversity in the treatment of what are called "extra charges," the incidental costs arising out of damage and claim, such as survey fees, auction charges, adjustment fees, etc. The habit has been for underwriters and adjusters to follow the custom of Lloyd's, and allow in full all such charges incurred at an intermediate point, while only allowing in proportion to the amount insured such as are incurred at destination. This custom possibly arose from consideration of the difference of the circumstances in which the expenditures take place.

It is most important to remember that the charges incurred under the sue and labour clause must be―

(a) Incurred by the assured, his servants, factors or assigns.

(b) On behalf of the property insured in a particular policy.

There are consequently excluded from the operation of

this clause (1) all expenses incurred in consequence of the action of parties not described under (a), such as salvors picking up property at sea, or persons voluntarily undertaking salvage work on a wreck as a speculation; and (2) all expenses not incurred for the benefit of special items of property, but for the safeguarding of the whole venture on board any ship and all sacrifices made to avert peril from the whole venture, matters which will come up for discussion later under the name of "General Average."

FORCE AND EFFECT OF THE POLICY

And it is agreed by us, the insurers, that this writing or policy of assurance shall be of as much force and effect as the surest writing or policy of assurance heretofore made in Lombard Street, or in the Royal Exchange, or elsewhere in London.

In these words the policy has since the sixteenth century perpetuated one great tradition of English commerce. In the policy of 1613 the underwriters speak of "the best and most suerest pollacie or writinge of assurance which hath binne euer heretofore vsed to be made lost or not lost in the aforesaid street (Lumbard street) or Royall Exchange.” 1 The clause has disappeared from many English policies, especially from those issued in the outports, and also pretty generally from companies' policies. But till within the last thirty-five years few English policies were issued that did not contain this clause or some variant of it. Indeed, without some such clause expressed or understood it is difficult to know what is and what is not covered by the policy. To settle this by a reference to tradition, somewhat vaguely expressed, appears a very loose and casual mode of proceeding, but it is a striking instance of a characteristically English commercial method. There is no such clause in the Florentine formula of 1523. The only parallel is the Antwerp clause mentioned in the Historical Introduction, p. 4.

1 Mr. R. G. Marsden has traced the formula as far back as 20th September 1547; a policy in Italian issued then in London naming "questa lombarda strade di Londra."

The effect of the clause is simply that where no provision to the contrary referring to any particular point is found in the policy, the assured is entitled to recover from the underwriter whatever it has been the custom of assured to recover from London underwriters. The burden of proof accordingly lies on the assured.

THE BINDING CLAUSE

And so we the assurers are contented, and do hereby promise and bind ourselves, each one for his own part, our heirs, executors, and goods, to the assured, their executors, administrators, and assigns, for the true performance of the premises.

This is the form still employed by Lloyd's and other private underwriters; but being obviously not suitable for the limited liability companies which engage in the business of marine insurance, has had to be altered for their use into something like the following :—

Now this policy witnesseth that the said company takes upon itself the burden of this insurance to the amount of . . . pounds, and promises and binds itself to the assured, their executors, administrators, and assigns for the true performance and fulfilment of the contract contained in this policy.

There is only one difficulty in connection with the words : it is to determine what constitutes "true performance of the premises," or as it is expressed in the later form, “the burden of this insurance" or "the true performance and fulfilment of the contract contained in this policy." Where the policy contains a reference to the custom of Lombard Street, such as has just been discussed, the difficulty is slightly lessened. But the fact remains that the policy contains no definite statement of what is to be paid in event of certain casualties, no account of the method in which the liability of the underwriter is to be determined. These important points have from time to time been determined by the courts, as naturally disputes arose regarding the duties and obligations of the parties to this contract. Enlightened by the decisions of the judges, it is

comparatively easy for modern commercial men to know what the words of the policy contain; they have learnt to read into the policy a certain meaning. But the first reading of a marine insurance policy usually leaves the reader in a state of utter uncertainty of its real purport and effect, and it is only after experience or research that he becomes aware of what is involved in "the true performance " of the contract, namely, the payment of material losses in whole and in some cases in part, of certain deteriorations and of certain liabilities, provided that these losses, deteriorations, and liabilities result immediately from some of the perils insured against enumerated in the policy. These will be treated later in detail.

THE CONSIDERATION

Confessing ourselves paid the consideration due unto us for this assurance by the assured at and after the rate of . . .

This form of the consideration clause is an absolute receipt for the premium, so that delivery of the policy can be alleged as proof of the payment of the premium. As the use of such a form has not always been found convenient, many companies now word their policies thus :—

In consideration of the person or persons effecting this policy promising to pay to the said company a premium at and after the rate of ..

The employment of this form enables underwriters to part with policies without previously receiving payment of premium and without thereby vitiating their claim for payment.

THE ATTESTATION

In witness whereof, we the assurers have subscribed our names and sums assured in London.

This clause is followed in a Lloyd's policy by a list of names and sums; the aggregate amount of the different sums subscribed by each underwriter equals the amount required