decision was that to cover collision liabilities a separate contract was framed, incorporated in the policy, and known as the collision clause, which will be dealt with subsequently. On the same principle payments for other damage to property done by the ship, and loss of life caused by her, do not form part of the liabilities of the underwriter of an ordinary policy.

(2) Wages of Crew and Demurrage during Repairs.The underwriters of a ship are not charged with the wages or provisions of a crew during the time that she is detained for repair, nor with anything of the nature of demurrage. This holds equally whether the repairs are effected at the close of the voyage or at an intermediate port in the course of the voyage. But in case any members of the crew are after arrival at destination employed to do work which, unless done by them, would require the labour of workmen from outside, the amount of their wages for the time so occupied is allowed. The exclusion of demurrage from particular average on ship, and its inclusion in all claims made against other vessels for damage suffered in collision, form a striking contrast. But the contrast marks strongly the difference between liability under a contract of indemnity against the immediate results of certain named perils and liability under a relation of injury arising from the fault of another person and resulting in his payment of damages.

(3) Temporary Repairs. If it is found to be for the interest of all concerned to effect only temporary repairs of damage, the shipowner is entitled to recover the cost of these repairs from his underwriters as well as the cost of the permanent repairs afterwards. In the same way he is entitled to recover the cost of repairs which have to be done over again in consequence of the work being done badly, or the repairs being effected in a manner which does not leave the ship as fit to sail or to sell as she was before the accident.

(4) Cost of Removal for Repairs.—With regard to the cost of removal of a vessel for repairs there are two possibilities to note :

(a) If the place of repair is in the port where the damaged vessel lies, it is customary to allow the expenses

of removal to the repairing place, and from that place after repair to what would then have been the vessel's position had the necessity for repair not arisen, namely, her place of loading.

(b) If it is desired to remove the vessel from an outport or a distant or foreign place to her home port or other place to be repaired there, it should be shown that the removal has been done in the interest of underwriters before they are charged with any of the expense; for it is only where expenses are incurred of necessity to enable the ship to be properly repaired that the underwriters are liable for them. The desire of the shipowner to superintend in person the repairs of his vessel at her home port will not justify his removing her at underwriters' expense, nor will the whole of the expense of removal be properly chargeable to underwriters if it results in the vessel, after repair, being in a better position for future engagements than if the vessel had been repaired at her destination.

(5) Dispatch: Overtime. It frequently occurs that in order to save time, the repair of damage is accomplished with unusual expedition, overtime, nightwork, holiday and Sunday work being resorted to in order to get the repair finished quickly. It may happen that the extra cost thus incurred is less than the charge that would otherwise have been made for longer use of the graving dock or slip, and in that case it is but reasonable that the underwriter should bear the extra cost, as it results in a saving to him. But usually such dispatch is required to enable the vessel. to take up some engagement, such as a charter or her turn on the berth in a regular line. As the underwriter is not concerned in such engagements, should he be held liable to make good costs incurred solely to enable a vessel to fulfil them? If he were liable in any sense for loss of time arising from a sea peril there would be some ground for making him pay for dispatch in repairs, but as he is not (without special agreement) liable for loss of time, it seems anomalous to charge him with expenses incurred to avoid such loss. The view adopted by the most recent writers (Lowndes, Law M. I. p. 194; M'Arthur, Contract, p. 233)

is that the shipowner is entitled to recover the extra payment for dispatch, if it is no more than he would reasonably incur if he were not insured. The solution hardly appears satisfactory, for it makes an insurance liability out of an expense in the incurring of which all question of insurance has confessedly been ignored. In addition, its adoption increases or diminishes underwriter's liability for one and the same casualty, according as the ship has engagements for favourable prompt employment or unfavourable distant employment. That is to say, the dispatch is obtained for a reason which has no relation, either proximate or remote, to the material damage chargeable on the policy. It appears that the question has not yet come before the courts.

(6) Unrepaired Damage. If a vessel is damaged and is not repaired, but is later on the same voyage lost, the only claim that can be made on the policy is for total loss. Similarly, if she is only partially repaired and lost later on the same voyage, no claim can be made for the repairs not effected (Livie v. Janson, 1810).1 But if the loss occurs on a subsequent voyage, the underwriters on the policy for the earlier voyage are liable for the repairs of damage arising on that voyage, those on the policy for the later voyage being liable for the total loss (Lidgett v. Secretan, 1871).2

(7) Should a shipowner be content to accept some method of repair which will render the vessel as fit for her trade as if she were more completely repaired, but not as valuable for sale, he is entitled to claim from his underwriter an allowance for the depreciation his ship has suffered. For instance, it often happens that a frame or beam is injured in such a way that it must be renewed in its whole length, unless the shipowner agrees to have it "scarphed,” a much cheaper operation, but one that leaves the ship of less value in the market. In such a case the shipowner is entitled to claim in addition to the cost of repairs an allowance for the diminution of his ship's value, provided that the sum of these two items does not exceed

1

12 East 648.

25 C.P. 190; 6 C.P. 616.

But it has

the cost of the more complete method of repair. been decided that if the ship is, after the substituted repairs, as valuable for work or sale as she was before the accident, then the indemnity received by the assured is complete, as he cannot recover more than he has lost (Bristol Steam Navigation Company v. Indemnity Marine Insurance, 1887).1

(8) Concurrent Repairs. When repairs for which underwriters are liable are carried out at the same time as repairs on shipowner's account, certain expenses, such as dock hire, are incurred only once which, unless the repairs were carried on concurrently, would be incurred twice. In the case of the Vancouver, (Marine Insurance Company v. China Trans-Pacific Steamship Company, 1886 2) two sets of repairs, shipowners' and underwriters', quite distinct, but both necessary, were going on in graving-dock at the same time. Three days' dock dues were saved by the jointexecution of the repairs, as the shipowners' work alone would have occupied three days, and the underwriters' alone eight days. The Court of Appeal decided that the first three days' hire should be halved, and the next five should fall entirely on the underwriters, and this decision was affirmed in the House of Lords. But it has not yet been decided by the courts how the expense should be divided in case the opportunity of some necessary repair on underwriter's account be taken advantage of by the shipowner to do some work on his own account, not necessary but only convenient, or vice versa. In all probability the necessary work would carry with it the greater part if not the whole of the expense common to both.

Thirds Deducted. After determining whether any liability attaches to underwriters in the ordinary form of policy for the repair of certain damage, it becomes necessary to inquire to what extent that liability goes. Up till the time when iron ships were introduced, the invariable practice in England was that unless the vessel was new a deduction of one-third was made from the cost of the repairs, this

1 6 Asp. Mar. L.C. 173.

2 II App. Cas. 573.

deduction being called an "allowance of one-third new for old." See the remarks of Mr. Justice Brett in Lohre v. Aitchison, 1877, 1879.1 If this is examined it will turn out to be merely another application of the principle already discussed above, namely, that the underwriter is not to be liable for wear and tear. The meaning of excepting from this deduction all repairs to new vessels (or, as the clause was sometimes worded, vessels on their first voyage, or vessels within eighteen months after launching) was that it was not supposed that ordinary use of the hull and materials of a new ship for the first voyage, or for less than eighteen months, would deteriorate them to any appreciable extent. The only cases in which the clause is now customary are those of iron ships getting on in years, in which it is usual for underwriters to stipulate that thirds shall be deducted from the repairs of the parts of the ship that are not iron. The clause runs :

In event of claim, no one-third new for old to be deducted from the cost of ironwork repairs of hull, masts, or spars.

In cases in which it is agreed that absolutely no thirds shall be deducted this is expressed in a clause like the following:

Average payable on each valuation or on the whole without deduction of thirds, new for old, whether the average be particular or general.

Since iron and steel have displaced wood as the material for shipbuilding, the importance of the deduction of thirds is much curtailed by the almost universal adoption in policies of clauses rendering underwriters liable for these thirds, but as regards the ship underwriter's liability in respect of general average it is still of effect. In the clause last quoted reference is made to this, so that frequently in statements of average an item occurs, "ship's proportion of thirds deducted in general average." But in the absence of any such clause the practice is based on the custom of

1 2 Q. B. D. 501; 3 Q. B.D. 558.

2 But see Mr. Justice Willes in Lidgett v. Secretan, 1871.