was delivered to the consignees in a
saleable state, as rice-this is only
average loss,
437

6. And where some tobacco and
sugar, though damaged by the perils
of the sea, were in the hands of the
owner, and might, for any reason that
appeared, have been forwarded to its
port of destination-held to be an
average loss,
437

7. And where some wheat was
partly saved, and was in the hands of
the shipper was kilndried, and might
have been forwarded, as the rest of
the cargo was, to its port of destina-
tion; but the shipper, after dealing
with it as his own, abandoned too late.
Held to be only an average loss, 438

8. So in the case of a ship, if she
be not bodily and specifically lost, and
there be no circumstances attending,
which would render the loss total by
the law of marine insurances: this is
only an average loss,
439

9. The loss of the original voyage
will not make a constructive total loss
of the ship; if she can be repaired so
as for her to sail to her destination, in
ballast, or with any kind of a cargo so
as, on her arrival, to be worth the
money expended on her, she ought to
be repaired for the purpose, where it
is possible to do it,
440

10. The rule for calculating the
average losses on goods, is laid down
by Lord Mansfield in Lewis v. Rucker,
and his Lordship said afterwards in
another case, that the rule laid down
in Lewis v. Rucker, should always be
followed where there was a description
of casks or goods,
440

11. But where the property con-
sisted of a variety of goods, and part
of them were lost by the perils of the
sea, the only rule was to go into an
account of the whole valued in the
policy, and take a proportion of the
whole value as the amount of the
goods lost,
441

12. Upon a policy on goods to
recover an average loss, it is imma-
terial whether the goods arrive at a

good or a bad market, for the true
rule to estimate the loss, is to take
them at the fair invoice price, 441

13. And the underwriter is not
liable to any loss that may arise from
the difference of the exchange, 441

14. The underwriter is not re-
stricted to the amount of his subscrip-
tion, but he may be subject to several
average losses, or to an average and
total loss, or to money expended “in
and about the safeguard and recovery
of the ship," to a much greater amount
than his subscription,
442

15. But the assured cannot recover
for more than he has been damnified,
and cannot recover for an average
loss, which has not been paid by the
underwriters, when it is afterwards
followed by other circumstances which
render the previous deterioration a
matter of perfect indifference to the
assured's interest,
443, 449

16. The assured cannot recover for
an expense which might have been
incurred, but never was incurred, 450

17. Where repairs are actually done,
and prudently done, they are a fit
measure of the assured's loss: he is
so much the worse for a peril within
the policy,
450

18. Expenses of this kind come
under the clause of the policy, which
enables the assured to lay out money
for the benefit of all concerned, 451

19. The proportion of the damage
which the assured has sustained, is to
be calculated from the gross and not
the net prices of the sound and
damaged goods at the port of de-
livery,

452

20. In an open policy the invoice
price, together with the premium of
insurance and commission, form the
basis of the value of the goods, 454

21. In policies on freight, the loss
is calculated on the gross and not on
the net amount,
456

22. Of the common memorandum
in the policy,

457.

23. It has been uniformly held upon
this clause, that the underwriters can

See "STRANDING" IN THE ARTICLE
"SHIP."

24. On a policy on wheat, with the
common memorandum, and the wheat
sustained an average damage, 561.
19s. 8d. per cent. The underwriters
held not liable,

465

25. A ship with a cargo of fruit, is
forced by stress of weather to put into
a port out of her regular course. The
fruit is so spoiled by the seawater,
and stinks so, that the government
prohibit the landing: the ship also is
so much damaged as not to be able
to proceed: held to be a total loss, 469
26. Where a cargo of fruit was
captured and recaptured, and brought
to its port of destination, but damaged
eighty per cent., held to be only an
average loss,
471

27. In an action on a policy on peas,
the peas arrived at the port of desti-
nation, but so much damaged, as to
be sold for three-fourth's less than the
freight; held that as the goods men-
tioned in the memorandum, arrived at
the market, the underwriters were not
liable,
472

28. Where the policy was declared
to be on hogsheads of sugar, and every
hogshead was saved with some sugar
in it, this was held an average loss, 473

29. The memorandum is likewise
usually modified by an express stipu-
lation to pay average on each species
of produce and on separate packages,

474

30. But this stipulation does not pre-
vent the average being calculated on
the whole cargo, if it amount to three
or five per cent. on the whole, 474
31. On the words "free from average
under three per cent." the underwriter
is liable for the amount of the aggre-
gate of several average losses, each
less than three per cent., but amount-
ing in the whole together to more, 475

37. An adjustment is not binding
upon an underwriter, if his attention
be not drawn at the time to circum-
stances, by which the underwriters
would have been discharged, though
he then had the means of acquainting
himself with them,

486

38. But where there is a full know-
ledge of the facts and a settlement
made, the assured cannot resort again
to the underwriter in any contingency
of the event,
487

39. The production of a policy with
an adjustment indorsed on it, and the
underwriter's name run through, is not
of itself proof of payment,
487

40. If at the time of the adjustment
the underwriter pays as for a total
loss, and it turn out afterwards only
an average one, he shall not recover
the money back, but he stands in the
place of the assured by having the
benefit of salvage,
488

41. But where a compromise has
been entered into by the underwriters,

1. Every ship must have a master
of competent skill,
110
2. And where any loss occurs from
the ignorance of the master, the un-
derwriters are discharged, 110, 113

3. The master is frequently called
upon to exercise his judgment, and to
act to the best of his understanding
for the benefit of both parties; and if
he were proved to be a person of com-
petent skill when he sailed on the
voyage, the underwriter is liable for
the consequence of his acts,

113

4. If a master do what is usual in
the course of a particular voyage, and
a loss accidentally happen at the time,
the underwriters continue liable, for
when they underwrote the ship they
knew what was to be done on such
voyages,

87
5. If the risk. be altered by the
fault of the master or owner, the un-
derwriters are not liable. But if the
master vary the risk, “ex justá causá,”
the liability of the underwriters con-
tinue,
87

6. The master is agent for the
freighter as well as the owner, 114
7. The master has an implied
authority both from the underwriter
and the assured, to do the best he can
for all concerned,
114

8. The master must by law take
on board a pilot at different parts of
the voyage when required of him, 115

9. The underwriters are not dis-
charged by the fault of the pilot in
charge of the ship, and who is master
for the time he continues on board,
117

10. By the provisions of the Pilot
Act, no underwriter shall be dis-
charged for reason of no pilot being
on board, unless it be proved that the
want of a pilot shall have arisen from
any refusal to take a pilot, or from
the wilful neglect of the master in

13. But if a vessel sail to a port,
where the establishment is such that
it is not always possible to procure
the assistance of a pilot before the ship
enters into the difficult part of the
navigation, then as the law compels
no one to perform impossibilities, all
it can require in such case is, that the
master use all reasonable efforts to
obtain one,
119, 120

14. In a general average it is the
duty of the master, if the ship ride
out the storm and arrive at its own
port, or port of safety, to make re-
gular protests, and swear, with which
part of the crew must join, that the
goods were thrown overboard for no
other cause, but for the safety of the
ship,

MORTGAGOR.

500

A mortgagor of a ship who is also
master, is considered still owner, in
order to disable him to commit an act
of barratry,
342

NON-COMPLIANCE WITH

WARRANTIES.

1. It is a clear and first principle
of the law of insurance, that where a
thing is warranted to be of a particu-
lar nature, or description, it must be
such as it was stated to be. It is no
matter whether it be material, or not;
the only question is, "is this the thing
de facto," that I have signed? 663

2. Ship" warranted well on a par-
ticular day," insured, "lost or not
lost," the policy was underwrote at

between one and three o'clock in the
afternoon, the ship was lost at eight
in the morning of the same day, the
warranty is complied with if the ship
is safe at any part of that day, 663

3. Distinction between a warranty
or condition which makes part of a
written policy, and a representation
of the case,

664
4. In order to make written in-
structions binding as a warranty, they
must appear on the face of the policy,
664
5. Warranty as to the time of sail-
ing,
670
6. Where a ship warranted to sail
on or before the 26th July, free from
capture, and restraint and detainments
of kings, &c. The ship was ready to
sail before the 26th July, if she had not
been detained by order of the governor.
Held that the warranty was posi-
tive and express that the ship should
depart on or before that day,

671

7. If a ship be warranted to sail
after a particular day, and she sail
before that day, the policy is void, 671

8. If a ship is warranted to sail on
or before a particular day, if she sails
from her port of loading with all her
cargo and clearances on board before
the day, to the usual place of rendez-
vous at another part of the island, for
the sake of joining convoy, it is a
compliance with the warranty, though
she be afterwards detained by an em-
bargo beyond the day,
672

9. It does not signify what was
the cause which prevented the ship
from sailing; but if she did not sail
on or before the day required, the
policy is void,
675

10. But if the ship breaks ground,
and is fairly under sail on the day
required, and afterwards puts back
from stress of weather, or apprehen-
sion from an enemy, or is put under
an embargo, though she has gone
ever so little way, it is still a begin-
ning to sail,
675
11. But where the warranty is to
depart on or before a given day, the

mences.

The assured does not war-
rant they shall continue so during
the voyage,
705
24. The question how far the
Courts of Law in this country, con-
sider the sentence of foreign Courts
conclusive evidence that the property
was not neutral,
707

25. It has been the constant usage
that the tribunals of the law of na-
tions should exercise their functions
within the belligerent country, 709

26. The principles laid down in the
Court of Admiralty in this country
are agreeable to the decisions of the
Courts of Law upon the subject, 710

27. Where a sentence was pro-
nounced by a belligerent, on neutral
territory, it was held void,

711

28. But if it appears beyond doubt
that the sentence proceeded on the
ground of the property not being
neutral, it is conclusive evidence
against the assured, that he has not
complied with the warranty,

713

29. Where a ship was condemned
generally as "good and lawful prize,"
it was held conclusive to falsify the
warranty, that the goods were neutral,
715

30. The sentence is conclusive only
as to the points it professes to decide,
717

31. If no leave is given to a ship to
carry simulated papers, and the ship
is condemned for carrying them, the
underwriters are discharged. Other-
wise if leave be given,
718

32. Where a sentence went upon a
French ordinance, and condemned a
Dutch ship because she had an Eng-
lish supercargo on board, (being an
enemy), this sentence was held to be
illegal and not conclusive against the
warranty,
718
33. So, where a ship was con-
demned because the captain was an
enemy" and nothing else, the sen-
tence was held not to be conclusive to
falsify the warranty,
719
34. Courts of Admiralty proceed
on the "law of nations," and such

66

treaties as particular states have
agreed shall be engrafted on that law.
But no one state can add to the "law
of nations," an arbitrary ordinance of
its own without the concurrence of
other states,
721

35. A ship belonging to a state in
amity with a belligerent, should be
furnished with such documents as
have, by treaty, being agreed on, to
shew her character. But no ship is
required to be furnished with every
document required by the ordinances
only of a belligerent power,
723

36. Where a ship warranted Swe-
dish is captured by the French, and
condemned. The Court of Prize, after
stating the principal question to be,
whether the ship and cargo were
enemy's property, condemns both as
good prize, without any express adju-
dication as to the property. Held,
that this sentence must be taken to
have proceeded on the ground of
enemy's property, and to be conclu-
sive to falsify the warranty, 729

37. A sentence of a Court of Ad-
miralty proceeding "in rem," is con-
clusive and binding upon all the
world,
733

38. The party who sets up the
sentence is not obliged to shew that
it proceeded on the ground of enemy's
property, but it lies on the other
party who objects to it, to shew that
it proceeded on some other ground,
733

39. A sentence of a Court of Ad-
miralty is conclusive as to all it pro-
fesses to decide,
736

40. Finally settled by the House
of Lords, that "the sentences of
foreign Courts of competent jurisdic-
tion to decide questions of prize, are
of conclusive evidence in actions on
policies of insurance, on every subject
within the jurisdiction of the Court,
and in which they profess to decide
judicially,"
738

41. But the Court must distinctly
decide the point, in order to affect a
warranty or representation in a policy,