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loss, although one of them was a cause sine qua non. the House of Lords both Lord Selborne and Lord Blackburn insisted on the difference between a fine or mulct, of the class for which the charter provides, and a loss of freight. As Lord Blackburn put it, 'The question here is not what was the proximate cause of a loss of freight, but whether there was any loss of freight.' The House of Lords decided that there was no loss of freight, consequently, that the underwriters on the ordinary policy were exempt from liability. Respecting the risk of fine or mulct Lord Blackburn said, 'Such a risk might very well be insured against, but it would require some special clause.'”

It appears that to entitle the assured on a time policy on chartered freight to claim for loss of time resulting from an accident caused by perils of the sea, the loss of time must have been such as to cause a loss of hire during the currency of the policy. In other words, if the vessel can perform the charter without having to stop her work for repairs, consequently without loss of hire, that performance discharges the underwriter, and he is not liable for any subsequent loss of hire which the shipowners suffer while the repairs are being effected. This is the effect of the decision in Hough v. Head, Court of Appeal, 1885.1

The case of the Alps (Mersey Shipping Company v. Thames and Mersey Marine Insurance Company, Limited, Admiralty, 1893)2 is an interesting pendant to Inman v. Bischoff. The Alps was hired to charterers who paid for her use £425 per month, payment monthly in advance; the charter-party providing that "in the event of loss of time from collision, stranding, want of repairs, breakdown of machinery, or any cause appertaining to the duties of the owner preventing the working of the vessel for more than twenty-four working hours, the payment of hire shall cease from the hour of the beginning of the detention until the ship be again in an efficient state to resume her service." On 18th August 1891 the ship took fire, and was so damaged that repairs became necessary, which occupied thirteen days. 1 54 L.J. Q.B. 294; affirmed 55 L.J. Q.B. 43, C.A. 2 L.R. 1893, P.D. 109.

The hire of the vessel for these thirteen days was repaid to the charterers by the shipowners. The question that came before the court was whether the shipowner was entitled under an ordinary policy on chartered freight to recover from underwriters their proper proportion of the hire. Both sides cited Inman v. Bischoff, each interpreting that case his own way. Mr. Justice Barnes, after examining the judgments in that case, concluded that "the true view to take of an insurance such as this applied to a very ordinary form of charter-party containing a very ordinary and usual clause, is to cast upon underwriters the risk of loss on freight when that clause is put into operation through the immediate action of the perils insured against."

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more recent case (Bedouin Steam Navigation Company v. Bradford, Court of Appeal, 1893)1 the charterparty contained a clause stipulating that "in the event of a breakdown of engines or machinery" (amongst other things), "and the progress of the steamer is thereby delayed for more than twenty-four running hours, payment of hire shall cease until such time as she is again in an efficient state to resume her voyage." The steamer's thrustshaft parted, and she was towed into St. Vincent, where a new shaft was fitted. The defendant, an underwriter on freight chartered and d/ as if chartered, on board or not on board," alleged that he was not informed of the existence of such a clause in the charter or of the tenor of this particular clause. In his judgment the Master of the Rolls (Lord Esher), supported by Lords Justices Lopes and Kay, confirmed Mr. Justice Barnes' decision in favour of the assured. The Master of the Rolls said that when the plaintiffs told the defendant that it was to be an assurance on freight payable per month, they told him in effect that it was to be a charter with the twenty-four hours' clause in it, and it could not be held that there was any concealment of material fact.2

1 10 Times L. R. 70.

2 It is striking that the Master of the Rolls in the Bedouing, and Mr. Justice Barnes in the Alps, should both have felt themselves forced to adopt trade custom as their guide in their efforts to find a proper connection between charterer, shipowner, and underwriter.

Particular Average on Ship. The consideration of particular average on the third great maritime interest, the ship, is beset with certain difficulties which are peculiar to that interest. It is much more easily grasped than is particular average on freight; in fact, it is quite as tangible as particular average on goods, but it is far from being so simple. Indeed the examination of the principles and practice of adjustment of particular average on ship shows, perhaps, more clearly than anything else how strongly English law is imbued with respect for custom, or, put the other way, how fully custom has taken up in England the position usually granted only to statute.

Franchise Valuations.-In one respect freight and ship are alike, the conditions of average for both being decided by the memorandum: on both interests there is a franchise of 3 per cent unless the ship be stranded. As has already been explained, it has become usual to add words to the memorandum which render the sinking or burning of the vessel, or her suffering damage from collision with another ship or vessel, equivalent to stranding in extending underwriter's liability for particular average to damage under 3 per cent. In the case of steamships this provision was not found to be sufficiently favourable to the assured. The value of the vessels that now do the most important part of the world's carrying trade far exceeds the value generally prevailing when the memorandum was originally drawn; the price of what would then have been considered an enormously costly ship is no more than that of an ordinary "tramp" steamer of to-day. It has consequently become customary to give in the policy separate valuations for the hull of a steamer and for the machinery usually expressed thus:

Hull and materials, masts, spars, sails, boats, etc., and

cabin furniture.

Machinery, boilers, and everything connected there

with

valued at £

valued at

£

and to add to the policy a clause of the following tenor :—

Average recoverable on each valuation as if separately insured, or on the whole, whether the average be particular or general.

Leaving aside general average for the present, it is evident that this clause extends considerably the indemnity recoverable by the assured under the name of particular average. It is to be remarked that the addition of the words "or on the whole" expressly grants to the assured indemnity for claims in which the franchise on the whole value is reached, although it may not be attained on one of the valuations. This is exactly parallel to the procedure in cargo claims under average clauses, and is in perfect agreement with the principles universally adopted in the interpretation of the policy (pp. 136, 194).

In the case of the great passenger line steamers the introduction of a second valuation has not been found sufficient, and the number has been increased to three or four. When the great cost of the cabin outfit and furniture of these vessels is borne in mind, it seems not unreasonable that this item should be treated as a separate valuation in their policies.

In indemnifying the assured for particular average on ship, the damage suffered is estimated by a method which from its nature is usually inapplicable to other interests. The fixing of the loss which falls on a policy of insurance covering freight is simply a matter of arithmetic: the amount of damage to goods is usually determined either by assessment or by sale; while in the case of ships, the measure of liability for particular average is the cost of such repairs as will put the vessel in the same state of efficiency as she was in before the accident which rendered these repairs necessary. The only parallel to this method is the charging of the cost of reconditioning goods at destination as particular average. There is some reason for this exceptional treatment of ship as contrasted with goods. For goods are exposed to the perils of the sea for only a brief period of their existence, and when the underwriter's connection with them is terminated by their arrival at destination, the indemnity he has to pay is fixed by sale or assessment of the damage: ships, although insured voyage by voyage,

or year by year, are intended to remain permanently at work at sea, and constantly exposed to sea perils, and are almost universally insured without interruption from the beginning to the end of their existence, so that it is reasonable that the payment of the cost of repairs should be taken as complete indemnity for the damage suffered by the assured.

The repairs of damage of the nature of particular average are confined to what will put the vessel in the same state of efficiency as she was in before the accident which rendered these repairs necessary. There is no reference to any other standard, whether it be the requirements of Lloyd's registry or any other classification body. Consequently, when underwriters have a claim put before them in which the repairs are said to be based on the requirements of any registry, they are entitled to go behind the recommendations of the surveyors, and to discover the actual state of the ship prior to the accident. It might happen, it actually has happened, that a casualty necessitating the repair of a ship occurred on the voyage, at the end of which the vessel was due for Lloyd's No. 2 survey. In the ordinary course of that survey she would have to be dry-docked and opened out for examination: it would obviously be unfair that all the expenses of these operations should be charged to the underwriter, a great part if not all of them being incumbent on the shipowner himself, even if his vessel went quite free of accident. This point will be treated more fully below.

Putting a vessel in the same state of efficiency as before the occurrence of an accident, does not necessarily mean the exact replacement of everything in and about her in its former position and condition; it does not mean what is I called in fire insurance "reinstatement." The repair will have fulfilled all that the assured is entitled to exact if it results in making the ship, to use the words of Lowndes (Law M. I. p. 191), as strong and durable and as good a carrier a ship which shall be as fit either to keep or to sell as she was before."

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Wear and Tear.—In examining the nature of the losses

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