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to be conveyed to their place of destination; but great latitude is allowed in describing the interest in a policy of insurance, provided that the nature of it is intelligibly disclosed, and there seems no reason why the money advanced may not be insured as freight as well as the money to grow due on the charter, which is undoubtedly insurable as freight, although not properly freight, and rather the price of the hire of the ship. Money advanced on account of freight does not necessarily indicate that the insurance is effected by the charterer or shipper, and that the freight paid in advance is at his risk, not at the risk of the shipowner. If this be a fact, and a fact material for the defendant, he ought to raise the question by some plea to that effect.
Assuming that there is, by a policy of marine insurance, an express contract that the underwriters shall be liable for general average, an alleged usage cannot be set up as a bar to the action, for it is entirely in derogation and contradiction of the written contract. Usage may be relied upon to show the sense in which an expression found in a written contract is used in a particular trade; and a usage, consistent with a written contract, may be introduced into it, as both parties, being aware of it, may be supposed to intend that it shall form part of
their bargain. But to let in verbal evidence of a usage for the purpose of contradicting and nullifying an express written contract would be contrary to all principle, and has been forbidden as often as the attempt has been made.
A defendant cannot, in an action on a policy in the usual form on ship, boats, etc., set up a usage that under such a policy the underwriters cannot be called upon to pay for the loss of boats slung on the outside of the ship upon the quarter. Lord Lyndhurst once said: "It was not to explain any ambiguous words in the policy, any words which might admit of doubt, nor to introduce matter upon which the policy was silent, but was at direct variance with the words of the policy, and in plain opposition to the language it used." Usage may be admissible to explain what is doubtful; it is never admissible to contradict what is plain.
In reference to the question whether contribution must be claimed in the first instance from the parties concerned, it may be stated that it is not a condition that the assured or goods must claim contribution by the other parties for a jettison before he can demand indemnity from his underwriters; he may demand it of them in the first instance. There is a remedy against the owners of the ship and
the remainder of the cargo, if they ultimately arrive safely at their destination, for part of the loss; but this does not affect the plaintiffs' right against the underwriters, who will then be entitled to stand in their place, and recover contributions from the other parties who are liable. Moreover, if the vessel or any part of the cargo arrived safely in consequence of the jettison, the owners must contribute to the loss sustained by the owners of the goods so sacrificed for the general advantage. The result is that the owner has two remedies— one for the whole value of the goods against the underwriters, the other for a contribution in case the vessel arrives safely in port, and he may avail himself of which he pleases, though he cannot retain the proceeds of both, so as to be repaid the value of the loss twice over. This is the usual case where there is an insurance, and a loss following therefrom within its terms, which would be total but for the liability of a third person. This was decided in the case of Randall v. Cochrane. In that case a vessel had been taken by the Spaniards, and the underwriters had paid as for a total loss. Reprisals having been made, the commissioners who were appointed to indemnify those who had
1 Ves. Sen., 98.
sustained losses refused to entertain a claim made by the underwriters, but the assured having obtained from them a contribution over again towards their loss, the underwriters filed a bill, and it was held, not that the loss was not total, but that the underwriters having indemnified the assured, whatever the assured received from the commissioners must be held by them as trustees for the underwriters. the assured proceeds against the underwriters in the first instance, the latter cannot avail themselves by way of plea of the fact that the assured has a distinct right against some other person. They must pay the amount fixed in the first instance, and will then be entitled to use the name of the assured, and proceed against the other parties who are liable.
Questions of this kind have arisen in many forms, and always have been decided the same way. In short, when the assured have made a contract with the underwriters that they shall be paid the sum insured in certain events which have happened, they are entitled to look to that contract for their indemnification independently of their other rights.
Lender upon Respondentia not Liable to Average Losses--Case of the Bella Leandra-English Underwriters Bound by Foreign Adjustment-English and American Law in reference to General Average Loss or Contribution-Particular Average Loss or Total Loss-English Policies must be Construed according to English Rules of Construction-Underwriters and Merchants with respect to Foreign Adjustment - General Average Adjustment Meaning of words "General Average" in ordinary English Policy-Little Information on Question as to when Voyage Terminated at an Intermediate Port - Where Adjustment is to take place at Port of Ultimate Destination-Principle on which Loss to Individual is Based— Question of Value of Goods Jettisoned-Amount of Contribution must depend upon Actual Value of GoodsEnglish Contract Governed by English Law-What Obligation to Contribute depends on-Where Average to be Adjusted at Place of Destination-Jettison where there are several Shippers whose Goods belong entirely to Subjects of Country at which Ship has Arrived-Owner of British Ship may avail himself of Statement of Average made in Foreign Country What a General Average Adjuster ought to Exclude-What the words "General Average as per Foreign Adjustment" signify-Assured not at liberty to Approbate or Reprobate with respect to Foreign Adjustment.
By the law of England, a lender upon respondentia is not liable to average losses, but is entitled to receive the whole sum advanced,