from the other ship his repairs in full, it is not usual to return more to the insurers than suffices to wipe off the sum they settled, and any law-expenses afterwards incurred, and he will be allowed to retain the rest on his own account. As in nearly all cases a settlement by the other vessel is preferable to a settlement by underwriters, for the thirds are saved, among other things, an owner very often elects to take his remedy in the first instance against the colliding ship. But though he intend to claim from his underwriters, he may take all steps against the ship doing damage which are necessary to recover from her, without injuring his right on his policy. And if he appear as plaintiff in an action against the other ship, having his underwriters' approval or authority, his right of recovery from the latter is not defeated. This is provided for by the policy itself, which declares, "and in case of any Loss or Misfortune, it shall be lawful to the Assured, their Factors, Servants and Assigns, to sue, labour, and travail for, in and about the Defence, Safeguard, and Recovery of the said Goods and Merchandises and Ship &c., or any Part thereof, without prejudice to this Insurance; to the charges whereof we the Assurers will contribute," &c. However, before taking legal proceedings in a collision case, it is advisable to first obtain the sanction of the underwriters.

Mutual

And I may here remark generally, that obligations. some moral obligations subsist between parties standing to one another in such a relation as assurers and assured do;-obligations which bind each

to do what is in his power to protect the interest of the other as against third persons. It is sometimes selfishly said by the insured, "I shall recover on my policy; it is not my business to look after the underwriters' interests; they can do that themselves." But there are many things which a master or owner, from his position, can know and do, which the underwriter is ignorant or incapable of; and therefore it is the incumbent duty of the former to ascertain and to act so that the insurers may not be put to an unnecessary loss. And, on the other hand, the insurer is not to take advantage of the steps which a master or owner makes for his benefit, and endeavour to escape from liability on the policy. There is often, unfortunately, a feeling of antagonism between the assured and the insurer, as if their interests were diametrically opposed, instead of their being in many respects coincident.

The remedy in collision cases is against the thing itself. The ship doing the damage may be arrested and proceedings can be taken against her in the Admiralty Court. Should she be condemned to pay the damages, she will be sold, and her proceeds applied to satisfy the claimants. Should the cargo of the injured vessel be damaged also, and join in the suit, it will take its share of the proceeds. But supposing the proprietor, or proprietors, of cargo hold back until the suit brought by the ship is decided, they will not be allowed to participate in the proceeds, but only take what surplus may remain after the satisfaction of the ship's claim.

It is nearly always a difficult matter to decide who is in the right in a collision case. The evidence on both

The safest plan

sides is ex parte and contradictory. at sea to avoid collision, and to facilitate recoveries when necessary, is to adhere as closely as possible to the Admiralty directions, as to course, showing lights, &c. And here again the insurers have a right to expect that the captain will act prudently and properly, and will not place the property under his charge in jeopardy by foolhardy or irregular acts.

Where the ship insured is in

fault.

The running

If the ship insured be in fault in a collision case, her own damages are recodown clause. verable on the policy, but not those of the other vessel. To gain protection against the risk of having to make good the injury done to the other vessel, a clause is very commonly inserted in the policy by which underwriters agree, that in case the ship insured shall run down and damage any other vessel and her cargo, and be found liable for such damage by any court of law or equity, or by any competent tribunal, they, the underwriters, will pay a certain portion of those expenses, (very frequently three-fourths,) in such proportion as the sum insured bears to the whole value of the ship and her gross freight. This is known as the Running-down Clause.

How claims are made

In making a claim against the vessel doing against other damage, those regulations we have previously vessels. spoken of, of deducting one-third of the repairs to equalise new with old, are not observed. On the contrary, a claim of the fullest kind, including every expense and loss, is made, embracing crew's

wages, loss of interest, detention, &c., and the cargo can put in a claim of a similar character.

Several interests.

Should there be several interests that have received damage, and they do not unite in a joint action against the ship doing damage, after the first interest has been satisfied by payment and the vessel has been liberated, it is competent for another to proceed against the same ship and recover. And there does not appear to be any limitation to the number of consecutive payments that may thus be enforced in respect of the same ship and freight by which the damages were done.

136

PART THE THIRD.

OF PARTICULAR AVERAGE ON GOODS.

Claims for loss on merchandise insured, by perils of the sea, &c., are technically distinguished as follows:

1. Total loss of the whole interest.

2. Total loss of part of the interest. (Sometimes called a Partial Loss, and sometimes Particular Average.)

3. Partial loss; by a sale at some intermediate place. (Called also a Salvage Loss; or a Total Loss with Salvage.)

4. Particular Average.

Concerning the first of these divisions, it will be convenient to withhold any remarks on the subject, until we come to consider the whole matter of Total Loss in one view.

The second,-Total loss of part, may consist of the absolute loss of one or more packages of goods; as