veffel, which is what is meant by jettison, or CHAP. VI. jetfon, is in all places permitted to be brought

into a general or grofs average; in which all who are concerned in fhip, freight, and cargo, are to bear an equal or proportional part of the lofs of what was fo facrificed for the common welfare; and it must be made good by the infurers in fuch proportions as they have underwritten.

If the fhip ride out the ftorm and arrive Beawes 148. in fafety at the deftined port, the captain must make regular protefts, and muft fwear jointly with fome of the crew that the goods were caft overboard for no other caufe but the fafety of the fhip and the rest of the cargo. The law authorises and protects those who act bona fide, and will indemnify them against all confequences.

M.g. 64.

All loffes fuftained, and expences incurred, voluntarily and deliberately, with a view to prevent a total lofs of the fhip and cargo, ought to be equally borne by the fhip, freight, Park 127. and her remaining lading. Such, for instance, is the damage fuftained in defending a fhip against an enemy or pirate, the expence of curing and attendance upon the officers or mariners wounded in fuch defence, the charges of loading and unloading the cargo, and the

Da Cofta v.

Newnh. m,

2T. R.407.

CHAP. VI. wages and provifions of the workmen hired

Plantamour

v. Staples,

Note.

for the repairs and taking care of the cargo, when a ship is obliged to go into port for the benefit of the whole concern.

Nor do the owners of goods insured preclude YT.R.611. themselves by fhifting the goods from one fhip to another, from recovering an average lofs, arifing from the capture of the second ship, if they acted from neceffity, and for the benefit of all concerned.

Beawes 150.

The wages and expences of the fhip's company, during her arreft by force, and the charges of reclaiming, fhall be brought into a I Mag. 67. general average; but not failors wages and victuals during quarantine, unless it be in performing an extraordinary quarantine.

Beawes 148.

A master, who has cut his mast, parted with his cable, or abandoned any other part of the fhip and cargo, in a ftorm, in order to fave the fhip, is well intitled to this compenfation; but if he fhould lofe them by the ftorm, the lofs falls only on the fhip and freight, because the tempeft alone was the occafion of this lofs, without the deliberation of the master and crew, and was not done with a view to fave the fhip and lading.

It is not only the value of the goods thrown overboard, that must be confidered in a general

ral average; but also the value of fuch as re- CHAP. VI. ceive any damage by wet, &c. from the jetfon

of the rest.

The contributien is not made, in general, Park 123. till the fhip arrive at the place of delivery: but when a veffel has been obliged to make a jettifon, or, by the damages fuffered foon after failing, is obliged to return to her port of difcharge the neceffary charges of her repairs, and the re-placing the goods thrown overboard, may then be fettled by a general average.

When the quantity of damage sustained in the courfe of the voyage is known, and the amount which each of the underwriters is liable to pay, is fettled, it is usual for them to indorfe on the policy, "adjusted this lofs, at "fo much per cent." or fome words to the fame effect. This is called an adjustment.

After an adjustment has been signed by the underwriter, if he refuse to pay, the owner has no occafion to go into the proof of his lofs, or any of the circumstances refpecting it. Perhaps the true rule upon the fubject may be better deduced from the following cafes.

In an insurance on fhip and goods from London to Shelburne, in Nova Scotia, the policy had been adjusted by the defendant at

Hog v. Gouldney, Sitt. after

Trin. 1745, atGuildhall, Lee, C. J Beawes 310.

Rodgers v. Mayler,

Sitt, after

Trin. 1790.

CHAP. VI. 5. per cent. and it was contended, that he

De Garron

Sitt alter

was now bound by that adjustment. On the other hand it was argued, that the adjustment, was not binding, and that, if it were, it ought to have been declared upon fpecially. Lord Kenyon faid, that he did not think it neceffary to declare on the adjustment specially; that it was, prima facie, evidence against the defendant; but if there had been any misconception of the law or fact, upon which it had been made, the underwriter was not abfolutely concluded by it. This turned out to be the cafe, and there was a verdict for the defendant.

So, in a later cafe, the plaintiff produced no v.Galbraith, other evidence but the adjustment. The witTin. 1795 nefs, who proved it, fwore that doubts had arifen in the minds of the underwriters foon after they had figned it, who, thereupon, refufed to pay. Lord Kenyon faid, that, under thefe circumstances, the plaintiff muft go into other evidence; which not being prepared to do, he was non-fuited. A motion was made, in the following Term, to fet aide the nonfuit, on the ground that the adjustment was, prima facie, evidence of the whole cafe, and threw the onus probandi upon the underwriter; and that it ampunted to more than proof of the defendant's fubfcription to the

Mich. T. 36 Geo. 3.

policy.

policy. Lord Kenyon-I admit the adjuft- CHAP.VI. ment to be evidence in the cafe, to a certain extent; but I thought at the trial, and ftill think, that when the fame witness, who proved the fignature of defendant to the adjustment, faid that doubts, foon after the adjustment took place, arofe in the minds of the underwriters, as to the honesty of the tranfaction, and they called for further proof, the plaintiff should have produced other evidence; and that to fhut the door againft inquiry, after an adjustment, would be to put a stop to candour and fair dealing among the underwriters. The rule was refused. ·

v. Fletc

In an infurance upon goods, on board a fo- Thellafon reign ship, "the policy to be deemed fufficient

proof of intereft in cafe of lofs," defendant fuffered judgment to go by default; and, on a motion to fet; afide the writ of inquiry, the Court of King's Bench faid, that although fuch a policy would be void in this country, by in Geo. 2. ch. 37. yet the ftatute did not extend to policies' on foreign fhips; and, in this cafe, the having fuffered judgment to go against him by default, has confefled the plaintiff's title to recover, and the amount of that lofs was fixed, by his own ftipulation in the policy, which he cannot now controvert.

Dougl. 35*