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There are two kinds of average, namely, general and particular.
General average is for a loss incurred, towards which the whole concern is bound to contribute pro rata, because it was undergone for the general benefit and preservation of the whole. Simple or particular average is not a very accurate expression, for it signifies damage incurred by, or for one part of the concern, which that part must bear alone; so that, in fact, it is no average at all. However, the expression is, perhaps, sufficiently understood and received into common use. For instance, the loss of a cable or anchor, etc., are matters of simple or particular average, for which the ship alone is liable. Assuming a cargo of wine turns sour on a voyage, it would be a matter of simple average, which the goods alone must bear, and there might be a general average, for each would be severally liable under a misfortune happening to both ship and cargo at the same time, and from a common cause; as, for instance, if a waterspout should fall upon a cargo of fruit, and a plank from the same violence should be loosened at the same time.
General average is that loss to which contribution must be made by both ship and cargo; the loss, or expense which the loss creates,
being incurred for the common benefit of both. Under maritime policies of insurance, in the ordinary form, underwriters are responsible for the contributions made by the insured, subject for loss by jettison of cargo, anchor, sails, expenses for temporary repairs, loss of cables, etc.--the general rule being that the amount made good in respect of property sacrificed is brought in as contributing rateably with the property saved, and the first named pays the same proportion of general average as the latter.
"The general contribution that is to be made by all parties towards a loss sustained by one for the benefit of all is sometimes called by the name of general average, to distinguish it from special or particular average--a very incorrect expression, used to denote every kind of partial loss happening either to ship or cargo from any cause whatever, and sometimes by the name of gross average, to distinguish it from the customary average mentioned in bills of lading, which latter species is also sometimes called petty average."
The liability of the goods saved to contribute proportionally with the rest to general average and salvage in no way depends upon the policy of insurance. "It is a consequence of the perils
of the sea, first imposed, as regards general average, by the Rhodian Law many centuries before insurance was known at all, and in reference to salvage by the maritime law, not so early, but at least long before any policies of insurance in the present form were thought of." If the owner of a ship has insured it, and it becomes so damaged that, though it is capable of repair, the expense of repairing it will exceed its value, such owner may treat the ship as totally lost, and recover a total loss, the underwriters who pay that total loss being entitled to all that is saved. The assured is not, even
then, bound to do so.
The parties to a policy of insurance on a ship tacitly agree, in case of repairs fairly executed, to replace damage occasioned by one of the underwritten perils to a ship of the age and character to which the custom applies, the custom being that the loss shall be estimated at two-thirds of the cost of the repairs, neither more nor less. Obviously, this can very seldom be the accurate measure of the loss. In most cases the rule operates favourably for the underwriter, as the shipowner in spending money on repairs seldom benefits his ship to the extent of one-third, and in such cases the payment of the sum so fixed by custom falls short of
a perfect indemnity. In some cases the benefit to the ship exceeds one-third, and there the assured receives more than a perfect indemnity. But if it were lawful to open the question and depart from the rule in any case, the whole object of it, which is to avoid litigation and expense, would be frustrated. No authority exists for any qualification of the general rule.
If the rule is applicable, two-thirds of the expenses of repairing the sea damage are to be charged to the ship. The expenses of making additions to the ship are not of course to be charged; they are not in any way a consequence of the perils of the sea. Apparently, more than the subscribed amount may be recovered where there are successive losses, but cases of this nature must undoubtedly be supported by evidence of inveterate practice.1
Be this as it may, "the liability of insurers in a single loss is without question limited to the amount insured, and the expense of suing, etc." Moreover, in a policy of marine insurance general average and salvage do not come either within the words or the object of the suing and labouring clause. "The words of the clause are that in case of any misfortune it shall be
1 See Phillips on Insurance, sec. 1,743, quoted by Lord Blackburne in Aitchison v. Lohre, 4 App. Cas. 879, p. 763.
lawful for the assured, their factors, servants, and assigns, to sue, labour, and travel for, in, and about the defence, safeguard, and recovery of' the subject of insurance, without prejudice to this insurance, to the charges whereof we the insurers will contribute '."
The object of this is to encourage and induce the assured to exert themselves, and, in consequence, the insurers bind themselves to pay in proportion any expense incurred, whenever such expense is reasonably incurred for the preservation of the thing from loss, in consequence of the efforts of the assured or their agents. may be here incidentally mentioned that there have been very few cases in our courts in which it has become necessary to discuss the nature of the suing and labouring clause. It should,
too, be particularly noted that the suing and labouring clause in a policy of marine insurance is inserted by the underwriters for the purpose of securing the benefit of any pains that the shipowner might be inclined to take in preserving, for their benefit, as much as he possibly could preserve.
Money paid in advance by a charterer or shipper of goods is not in strictness freight; it has been called more properly "the price of the privilege of putting the goods on board the ship