ship proof that he has not exerted himself to the utmost to save the ship, cargo and stores, shall bar his claim."

Total loss for bottomry cannot arise if the ship exist in specie, although it may prove a constructive total loss.

In order to entitle the assured to claim for a total loss which is not in itself an actual total loss, he must within a reasonable time after he has received information of the loss, give notice of abandonment to the underwriters, and of his intention to claim for a total loss. There is no particular form of notice required, but it must be definite and clear and without reservation. The notice must be accompanied with the fullest and best information of the facts and circumstances relating to the loss which the assured possesses, to enable the underwriters to decide whether they will accept the notice, and if they do so, whether they will take any steps to save the property so constructively lost.

The underwriters, on the other hand, are bound to say within a reasonable time after receiving the notice of abandonment whether they will accept it or not.

Notice of abandonment may be given by any person jointly interested in the insurance on behalf of himselt and all other persons interested.

In case of constructive total loss, whether the underwriters accept or repudiate the notice, the master must protect himself by every means in his power to show that he has done the best he possibly could for the interests of all persons concerned, because if he abandons either ship or cargo so long as there is the slightest

chance of saving it from total loss either actual or constructive he will be held personally responsible. He should place himself in the position of owner and consider what he would do if uninsured.

The assured cannot convert an average claim into a constructive total loss claim; if, therefore, the master sells the ship or cargo when he could have repaired the one and have conveyed or caused the other to be conveyed to its destination, the assured will only be entitled to recover for an average loss, and the master will be guilty of a tortuous conversion of the property in question and answerable accordingly. This should make owners cautious whom they appoint as masters, and masters cautious how they act under such circum

stances.

Claims in respect of a General Average Loss.

Total losses are not the only losses a shipowner has to suffer, he may sustain a partial loss.

Partial losses resolve themselves into "general" or "particular" average.

The distinction between "general" and "particular" average will be readily understood if it be remembered that all sacrifices voluntarily made-damages voluntarily suffered-or expenses voluntarily incurred to save the ship and cargo from a common peril, are general average losses; whilst particular average is any loss suffered by either ship or cargo arising from

causes entirely independent of human agency, or arising from measures taken to avert perils threatening either ship or cargo alone. But neither of these expressions must be confounded with what is called average, which comes under the subject of affreightment, and signifies certain small charges for towage, beaconage, &c., to which a merchant is liable who has taken a ship to freight.

According to the Roman law, which was followed by the civilians, general average was understood simply as the casting overboard of merchandize for the preservation of the rest and for the sake of relieving the ship in distress,* and therefore, it must be made good by the contribution of all.

"The goods," says Lord Tenterden, in referring to this subject, "must be thrown overboard; the mind and agency of man must be employed. If the goods are forced out of the ship by the violence of the waves, or are destroyed in the ship by lightning or tempest, the merchant alone must bear the loss. They must be thrown overboard to lighten the ship. If they are cast overboard by the wanton caprice of the crew or the passengers, they, or the master or owners for them must make good the loss. The goods must be thrown overboard for the sake of all, not because the ship is too heavily laden to prosecute an ordinary course

* "Si levandæ navis gratiâ jactus mercium factus sit, omnium contributione sarciatur, quod pro omnibus datum est."-D.14.2.1.

through a tranquil sea, which would be the fault of those who had shipped the goods; but because at a moment of distress and danger their weight or their presence prevents the extraordinary exertions required for the general safety. When the ship is in danger of perishing from the violent agitation of the wind, or from the quantity of water that may have forced a way into it, or is labouring on a rock or a shallow upon which it may have been driven by a tempest; or when a pirate or an enemy pursues, gains ground, and is ready to overtake, no measure that may facilitate the motion and passage of the ship can be really injurious to any one who is interested in the welfare of any part of the adventure, and every such measure may be beneficial to almost all. In such emergencies therefore, when the mind of the brave is appalled, it is lawful to have recourse to every mode of preservation, and to cast out the goods in order to lighten the ship for the sake of all. But if the ship and the residue of the cargo be saved from the peril by the voluntary destruction or abandonment of part of the goods, equity requires that the safety of some should not be purchased at the expense of others, and therefore all must contribute to the loss."

"Many of the foreign ordinances," continues his lordship, "have prescribed various forms to be adopted with respect to jettison; some of them have even named the persons to be consulted before it takes place, and have set down the phrases of consultation,

and specified the sort of goods that shall be first thrown; and some authors have amused themselves by dividing the act itself into the several species of regular and irrregular, formal and informal. But the regulations prescribed by persons at ease in the closet or senate-house will seldom be followed at the moment when life or liberty is in jeopardy; and provided the jettison have been the effect of danger and the cause of safety, all writers agree that the contributions ought to be made although the forms have not been complied with."

General average losses include all losses arising from jettison, or goods thrown overboard to lighten a stranded ship, or to enable a ship to elude an enemy, losses to cargo damaged in consequence of jettison, or that may be washed overboard during jettison (except deck cargo), or by water getting into the hold, whilst the hatches are up for that purpose, or holes made in the deck through cutting away a mast; losses occasioned by the voluntary sacrifice of masts, sails, rigging, &c., to righten a ship on her beam ends, or to prevent her driving on a lee shore in a storm; losses occasioned by the voluntarily shipping of anchors, cables, and chains to avoid collision or other danger, or in order to clear ships, in or after a collision has taken place; the expenses incurred through entering and leaving a port of refuge, whenever necessary for the common good; as well as all losses and expenses occasioned by or consequent upon all, any, or either of the above-mentioned losses.

Sums paid for salvage services rendered to ships in