and other countries, for the punishment of those who are guilty of some of the more heinous acts of barratry.

112. 215.

By the ordinances of Middleburg, Rotterdam, and Ham- 2 Mag. 77. burgh, if any act of barratry be committed by the master, various degrees of punishment, sometimes amounting even to death, are inflicted upon him, proportioned to the enormity of his guilt.

We do not find that any punishment was expressly provided, by the law of England, for offences of this nature, till the reign of Queen Anne, at which time, as may be collected from the preamble of the statute, the wilful casting away, burning or destroying of ships by the master or mariners, was become very frequent.

66

66

To prevent these evils that statute ordains, "that if any 1Anne, stat.

captain, master, mariner, or other officer belonging to any ship, shall wilfully cast away, burn, or otherwise destroy "the ship unto which he belongeth, or procure the same to "be done, to the prejudice of the owner or owners thereof, or of any merchant or merchants that shall load goods. "thereon, he shall suffer death as a felon."

2. c. 9 s. 4.

4 Geo. I.

Upon trial this act was found not to be sufficiently extensive, and therefore, by a subsequent statute, it was declared, c. 12. 5. 3. "that if any owner of, or captain, master, mariner, or other "officer belonging to any ship, shall wilfully cast away, burn,

or otherwise destroy the ship of which he is owner, or unto "which he belongeth, or in any manner direct or procure "the same to be done, to the prejudice of any person or persons that shall underwrite any policy or policies of insu"rance thereon, or of any merchant or merchants that shall "load goods thereon, he shall suffer death."

66

66

c. 29. s. 6.

By a subsequent statute it was afterwards enacted," that if 11 Geo. I. any owner of, or captain, master, officer, or mariner belonging to any ship or vessel, shall wilfully cast away, burn,

" or otherwise destroy the ship or vessel of which he is "owner, or to which he belongeth; or in any wise direct or procure the same to be done, with intent or design to pre

7th section.

66

judice any person or persons that hath underwrote, or shall "underwrite any policy or policies of insurance thereon, or "of any merchant or merchants that shall load goods thereon, or of any owner or owners of such ship or vessel, the

66

person or persons offending therein being thereof lawfully "convicted, shall be deemed and adjudged a felon or felons, " and shall suffer, as in cases of felony, without benefit of 66 clergy."

The following section directs, that if the offence be committed within the body of a county, the same shall be tried as all felonies are in the common law courts: but if upon the high seas, then to be tried agreeably to the directions of the 28 H. 8. c. 15.

These are the only positive regulations, known to the law of England, for the punishment of those who wilfully destroy ships to the prejudice of such persons as are interested in their preservation.

CHAPTER VI.

Of Partial Losses, and of Adjustment.

HAVING, in the preceding chapters, treated fully of the

different kinds of losses, for which the underwriters are answerable, the subject naturally leads one to consider, when losses shall be said to be total, and when partial or average,

they have been most commonly denominated. When we speak of a total loss, we do not always mean to signify, that the property insured is irrecoverably lost or gone: but that, by some of the perils mentioned in the policy, it is in such a condition, as to be of little use or value to the insured, and so much injured, as to justify him in abandoning to the insurer, and in calling upon him to pay the whole amount of his insurance, as if a total loss had actually happened. But the idea of a total loss, in this sense of the word, is so intimately blended and interwoven with the doctrine of abandonment, 2 Burr. that it will add much to clearness and precision, to refer what 1170. may be said on this subject, till we come to the chapter on abandonment. In this place it will be sufficient to remark, that in case of a total loss, properly so called, the prime cost of the property insured, or the value mentioned in the policy, must be paid by the underwriter; at least, as far as his proportion of the insurance extends. This is evident from the nature of the contract: for the insurer engages as far as to the amount of the prime cost, or value in the policy, that the thing insured shall come safe: he has nothing to do with the market; he has no concern in any profit or loss which may arise to the merchant from the sale of the goods. If they be totally lost, he must pay the prime cost, that is, the value of the thing he insured, at the outset: he has no concern in any subsequent value. So likewise, if part of the cargo, capable of a several and distinct valuation at the outset, be totally lost: as if there be one hundred hogsheads of sugar, and ten happen to be lost, the insurer must pay the prime cost of

those

3 Burr. 1555.

Lex Merc.

red. 147.

those ten hogsheads, without any regard to the price, for which the other ninety may be sold. Thus much at present for total losses.

The subject of this and the following chapter, seems to be of all others the most intricate and perplexing, in the whole law of insurance; an intricacy, which arises from several causes. In the first place, the subject of average has very seldom fallen under the cognizance of courts of judicature in this country; consequently there are very few adjudged cases to be found. In this scarcity of settled principles, recourse must be had to the writers of foreign nations, and to such of our own as have written upon commerce in general: but the research is by no means attended with satisfaction, much less with conviction. Another source of perplexity upon this subject is, the irregu larity and confusion, which we meet with, in the present form of policies of insurance. Ambiguities frequently arise in them, by using the same words in different senses; and, in no instance, is this absurdity more glaring than in the use of the word average. This word in policies has two significations; for it means," a contribution to a general loss:" and it also is used to signify" a particular partial loss." In commercial affairs, indeed, it has no less than four different meanings: and therefore it cannot be wondered at, if much confusion of ideas has arisen upon the subject. In order to prevent that, if pos sible, in the subsequent part of this work, I shall here endeavour to distinguish between the four different senses of the word "average;” and wherever I shall have occasion in future to speak of a damage arising to goods or other property, not total, except when I am reciting the words of a policy, I shall take the liberty of calling it, as I have already done at the head of this chapter, a partial, not an average loss.

When goods or merchandizes carried by sea, are thrown overboard in a storm, for the purpose of lightening the ship; the owners of the ship and of the goods saved contribute for the relief of those, whose goods are ejected, in such a manner, that all, who profited by the lightening of the ship, may bear a proportional loss of the goods, thus thrown overboard, for the common safety. This contribution is what is called ge

neral

neral or gross average; the full discussion of which will be the business of the next chapter.

Small or petty averages are the next species, and, as these Magens, 72. never fall upon the underwriters, I shall here set down all that is necessary upon this subject. Petty average consists in such charges and disbursements, as according to occurrences, and the custom of every place, the master necessarily furnishes for the benefit of the ship and cargo, either at the place of loading or unloading, or on the voyage. These charges are, lodemanage, which, as it appears by Cowel's interpreter, means Cowell, the hire of a pilot for conducting a vessel from one place to 2 Mag. 189. another; towage, pilotage, light-money, beaconage, anchorage, bridge-toll, quarantine, river-charges, signals, instructions, passage money by castles, expences for digging a ship out of the ice, when frozen up, that it may be brought into a proper harbour; and at London, by custom, the fee paid at Dover pier. These seem to be all the articles which come under the denomination of petty or accustomed average, as well in this as in foreign countries.

278.

For these charges, the insurers are never answerable; but 1 Mag. 72. one-third of the expences is borne by the ship, and two-thirds by the cargo. But in order to discharge the insurer, it must appear that the disbursements were usual and customary in the voyage; for if they were incurred for any extraordinary purpose, or in order to relieve the ship and cargo from some impending danger, they shall then be reputed a general average, and consequently be a charge on the insurer. In lieu of these petty averages, it has become usual at some places to pay

5 per cent. calculated on the freight, and 5 per cent. more for 1 Mag. 72. primage to the captain.

Average,

Another species of average, in matters of commerce, is that which we are accustomed to meet with in bills of lading, "paying so much freight for the said goods, with primage Jacob's Law "and average accustomed." In this sense it signifies a small Dict. title duty, which merchants, who send goods in the ships of other men, pay to the master, over and above the freight, for his care and attention to the goods so entrusted to him. This kind of average may also be laid out of the present enquiry,

VOL. I.

M