« AnteriorContinuar »
provided ship and cargo arrive at the port of destination. In one case, the plaintiffs (merchants in London) had insured with the defendants (underwriters in London) by a policy dated the 23rd July, 1867, a cargo of rye on board the Italian vessel the Bella Leandra, on a voyage from Taganrog to Bremen. The vessel, after sailing on the voyage insured, was compelled by severe weather to put into Constantinople in distress, and the master there, in order to raise money necessary for repairs, so as to enable the ship to continue her voyage, executed a bottomry bond on the ship, freight and cargo, to secure the repayment of £2,353 4s. on the arrival at Bremen. The ship having sailed from Constantinople, was compelled, by further severe weather, to put into Malta in distress, and the master was there obliged to execute another and similar bottomry bond on ship, freight and cargo, to secure repayment at Bremen of £465 6s. 5d. The vessel arrived at Bremen, and the captain was unable to take up either bond. Messrs. who had become owners by purchase of the cargo of rye, took up both bonds, and in order to obtain delivery of the cargo, paid off the owners of both. This was found by the case to be the only course by which the Messrs. could obtain posses
sion of the cargo. The special case then found that "a statement of average," dated the 3rd August, 1868, was prepared by an average stater in Bremen, in which the loss arising upon the said bottomry bonds was apportioned between the cargo and the ship and freight and the cargo as follows: 1,088 14s. 11d. as falling upon the cargo, and £1,185 11S. upon the ship and freight. It was held that the underwriters were bound by the average statements so made, and, consequently, that the assured were entitled to recover the £663 2s. 10d.
It is clearly established that upon a policy on an insured voyage to terminate at a foreign port, English underwriters are bound by the foreign adjustment as an adjustment, if made according to the law of the country in which it was made. They are bound, although the contributions are apportioned between the different interests in a manner different from the English mode, or though matters are brought into, or omitted from, general average, which would not be so treated in England; and underwriters, if they are not absolutely bound to accept the foreign adjustment as rightly made, if bona fide made, must assume it to be rightly made, if bona fide made, until the contrary be clearly proved. "When a general average is fairly
stated in a foreign port, and the assured is obliged to pay his portion of it, he may recover the amount from the insurer, though the average may have been settled differently from what it would have been at the home port." Moreover, "the lex loci is that underwriters shall reimburse general averages if within the perils insured against, according to the apportionments made and contributions exacted abroad at the port of destination."
According to English and American law, the underwriter of a policy in the ordinary form is not liable to indemnify against any general average loss or contribution, whether it be general according to the law of his own country or according to the law of the foreign country in which the voyage terminates, or whether the adjustment be made according to the domestic or to the foreign law, if the general average loss be not incurred, or the general average contribution be not made, in order to avert loss by a peril insured against. Underwriters are liable to make indemnity by payment of either a particular or general average or total loss only in case of its being caused by the perils insured against."
Obviously, this must be so in case of a particular average loss or a total loss. And a
general average loss, as meaning the loss to the person who suffers damage, is no more than a particular average loss to each of the parties who has to suffer or contribute in respect of it. By the word general is only meant that the loss is only to be generally distributed, or the contribution to be generally made by all. It is the loss to each and all caused by a sea peril which must in this, as in other cases, be the loss caused by a peril insured against. "So far as general average is occasioned by perils insured against, the insurers are liable for it in proportion to the amount insured. Mr. Justice Story says: "General average is only payable where it is a consequence, or result or incident of some peril insured against."
English policies must be construed according to English rules of construction; and among those rules are two: first, that the court must, if possible, give some effect to words apparently used as words of obligation in a written instrument made between parties; and the other, that the words are rather to be construed so as to impose a burden on the person who apparently assumes them as obligatory.
Underwriters and merchants know well that there is a diversity in the effect of foreign adjustments. No doubt it is competent to an
underwriter on an English policy to stipulate, if he think fit, that such policy shall be construed and applied in whole or in part according to the law of any foreign state as if it had been made in and by a subject of the foreign state. A claim for average contribution is part of the law of the The obligation to contribute in general average exists between the parties to the adventure, whether they are insured or not. The fact of a party being insured can have no influence upon the adjustment of general average, as the rules are entirely independent of insurance. a contributing party is insured, he can claim an indemnity in respect of the contribution which he has been compelled to pay in general average, but that is all. In some cases, however, an assured may have a right to recover in full for the loss of sacrificed property, but the underwriters have the right to recover contribution from the various contributories, and, subject to certain differences of values, the result to the underwriters should be practically the same as if the assured had only claimed his contribution from them. The contribution is based on the benefit derived from the sacrifice by each interest, in other words, on the values saved, and in the case of freight this is the amount of freight at risk, less the