in articles contraband of war. But the judgment of a foreign or colonieal court shall not be conclusive, upon the parties as to the fact of there having been articles contraband of war on board, or as to the fact of an attempt to trade in violation of the law of nations." The questien arose whether a seizure and detention to come within this exception must be for a legal and justifiable cause. The Court, Story, J. said, that the question ought to be answered in the affirmative. 8 Pet. R. 495. See 18 Martin's Lou. R. 11, 51.

A contract of insurance in violation of the law of the country, of the contract, is illegal. 15 Mass. 35; 14 ib. 121.

The import of restraint and detainment is the same. They are respectively the effect of superior force, operating directly on the vessel. So long as a ship is under restraint, so long she is detained, and whenever she is detained she is under restraint. Per Parsons, C. J. in 6 Mass. R. 293.

Inception and duration of risk on freight. The risk on freight does not attach until goods are either actually shipped on board, or until there is an actual contract for shipping them. Flint v. Flemyng, 1 B. & Adol. 45.

Where there is a valued policy on freight, and the ship is lost while taking in her cargo, the assured can only recover for the freight of the goods actually on board, unless a full cargo be then provided for her, or there be a contract either written or parol to supply one. Patrick v. Eames, 3 Camp. 441. A homeward policy on freight, at and from Algoa, attaches, when the ship is at A. in a condition to begin to take in her homeward cargo. Williamson v. Innes, 8 Bing. 81; 1 M. & Rob. 88.

If the vessel is so disabled as to be unable to proceed on her voyage, the insured on freight may then abandon as for a total loss, except another vessel can be procured for less than half the freight. 7 Cowen, 584; 18 J. R. 210. The charterer has no interest to protect by insurance; but he may insure his advances on freight. 1 Hall 325, 452. The particular interest of the charterer must be stated. 2 J. R. 346.

6. Of Warranties.—In the application for insurance, a steam saw-mill was described as 130 feet long and 30 broad, and it turned out that it was not only longer but broader. Held, that this was merely a representation, which did not affect the validity of the policy, unless it appear that the representation had the effect to lessen the premium of insurance. The court say that a warranty cannot be created by construction, but must appear on the face of the policy. The Jefferson Ins. Co., 7 Wend. 72. A representation to have the effect of a warranty, must be contained in the policy itself; and any instructions for insurance, unless inserted in the policy do not amount to a warranty. 2 Hall, 608; Snyder v. Farmers' Ins. Co., 13 Wend. 94; Dow v. Whetten, 8 ib. 166. The policy is the only legal evidence of the contract of the parties.

7. Of Misrepresentation and Concealment. It is the duty of the insured, in all cases, to disclose all material facts within their knowledge—and even upon the common doctrine of concealment in insurance cases, although no specific question be asked, the suppression of a material fact, although innocently done, will be in contemplation of law a fraud, snd vitiate the contract. Per Littledale, J. 4 Bing. 60. But what facts within the knowledge of the insured

are material to the risk, and necessary to be communicated to the assurers at the time of the application, is matter for the jury exclusively to determine, as was decided after the fullest consideration, and by the highest authority in New York. New York F. Ins. Co. v. Walden, 12 J. R. 513; Tyler v. Etna F. Ins. Co., 12 Wend. 507. See Ante, where the subject is more fully discussed. 8. Of Loss.-The character of a loss whether total or partial, is in general to be taken in connection with the circumstances of the disaster in determining whether it is one or the other. Thus, in case of a submersion de facto, the ultimate question is, can she be raised and repaired at a reasonable expense of time and money; and in case of stranding can she be got off and repaired at a reasonable expense. 11 Pick. 90. Total Loss.-Whenever a total loss, in the legal contemplation of the phrase, has accrued, an abandonment or offer to abandon by the insured, gives a vested right to claim for such total loss, and throws the property upon the assurer. Per Parsons, C. J. in Lee v. Boardman, 3 Mass. 77. In such case, the master or whoever has charge of the property, becomes instantly upon abandonment, the agent of the assurer, and the earnings of the ship belong to him; and when the cargo is insured, the rise and fall of the market is at his hazard, and to his benefit:-the relation of the parties to the property is fixed by the act of abandonment. ib.

The right to abandon must depend on the facts known; he must have intelligence of the loss before he is admitted to his election of abandoning. 4 Mass. 38. When by stranding the voyage is defeated, the owner may abandon. See the observations of Chief J. Parsons, in the case of Wood v. The Lin. & Ken. Ins. Co., 6 Mass. 479. See also 15 ib. 343; 13 ib. 102; 17 ib. 477. In this country, it is well settled that where the vessel is damaged by any of the perils insured against, so that the expenses of repairing her would exceed three fourths of her former value, the owner may abandon and recover for a total loss: this is an injury exceeding half her value, for the one third of the repairs is deducted, new for old. Dickey v. American Ins. Co., 3 Wend. 658.

In Nickols v. The Maine F. & M. Ins. Co., 11 Mass. 253, it was held, that the principle of deducting one third new for old, applies to a new ship; the rule is binding in all cases. And we have seen that this doctrine of Marine insurance applies to Steamboats on the Ohio river. Thus, in Wallace v. The Ohio Ins. Co., 4 Ham. R. 785, where the boat was injured by concussion with another boat; and the repairs amounted to $1600; but by the terms of the policy the insurers were not to be responsible, unless the loss amounted to ten per cent. And they refused to pay on the ground, that the loss when reduced one third, upon the marine doctrine one third new for old, did not amount to $800; and the court upheld them in their position saying:-" We think that the doctrine of marine insurance applies to Steamboats on the Ohio. We understand that the rule is of universal application, and that it is not adapted to each particular case. It is so laid down by Judge Story, in Peel et al v. The Merchants Ins. Co., 3 Mason, 73. We find it safer to adhere to doctrine as we find it settled, and administer it as an entire system. When the amount of one third is deducted from the whole charge for repairs, the loss is reduced to

a less sum than 800 dollars. This not being ten per cent. upon the actual value, the terms of the policy do not entitle the plaintiff to recover." In Byrnes v. The National Ins. Co., 1 Cowen, 265, the rule was laid down to be this :— 66 to apply the old materials towards payment for the new, and to allow the deduction of one third new for old, upon the balance.

Partial Loss.-The company is not answerable for any partial loss on meinorandum articles, except for general average, unless there is total loss of the whole of the particular species, whether the article be shipped in bulk or in separate packages or boxes. Wadsworth v. Pacific Ins. Co., 4 Wend. 33. And where the memorandum specified that corn should be free from average unless general, it was held that the assurer was protected from every claim from a total loss where the destruction of the subject had not been an actual physical destruction. 1 J. C. 226.

In a policy of insurance upon the body of a steam boat upon time, the insurer is not chargeable with the wages of the crew while the boat is stranded within the time insured. Gazzam v. Cincinnati Ins. Co., 6 Ham. Ohio R. 71 ; Perry v. Ohio Ins. Co., 5 Ohio R. 306. The insurers are liable for the entire expense of repairing the injury, though only part of the repairs were effected at the first point after it occurred, and the remainder at another port. ib.; Brooks v. The Oriental Ins. Co., 7 Pick. 268.

The running the boat while unseaworthy, after the injury complained of, does not avoid the policy. ib.

The assured have no right, in such case, to have the items of loss analyzed, to ascertain, if upon each separately, the amount is equal to that for which the assurers have become liable. ib.

9. Of Average and Abandonment.

(a) Of Average. The word average means a contribution to a general loss. It is a contribution to which the owners of the ship, goods, and freight, become liable inter se, on the sacrifice of a part of the ship or cargo for the preservation of the whole, in a case of general danger. All the property which was saved from the peril and ultimately comes to the use of the proprietors, is liable to contribution in general average. 1 Hall, 430.

If the ship or any portion of the cargo be lost by a new accident, the owners of what was so lost cannot be made contributory in respect of it, to the indemnity of those who suffered by the sacrifice for the safety of those goods from the previous peril. By Jones, C. J. in ib.

It is a general principle which runs through all the cases, and has the sanction of all the courts, that the sacrifice made by the common agent of the whole or a part of the goods of some of the shippers, for the rescue of the whole interest from a peril which threatens the destruction of all, entitles the sufferers to contribution to the loss from those who benefit by the sacrifice thus made for the common welfare. And any private loss or damage which falls within that principle, and is purposely incurred for the general safety, is

entitled to the benefit of the rule of contribution wherever the parties called upon to contribute have profited by the sacrifice. ib.

So, where a ship having sprung a leak, a part of her cargo was taken out to lighten her, and to discover and stop the leak, which was put on board of another vessel, and lost by capture; but the leak in the first ship was repaired, and she enabled to proceed on her voyage, and finally reached her port of destination. The goods lost by the capture were contributed for in general average. ib. In Magrath v. Church, 1 Caines, 214, where in cutting away a mast, it made an opening which let the water into the hold, and damged the cargo, the damage was held a subject of average. But no obligation results from a loss or exposure which conduces to another's benefit, but was not designed or intended to subserve the general interest by averting a common danger. And although a benefit was intended to be conferred, but which has been disappointed by the result, a party shall not contribute. The case of Whitteridge v. Norris, 6 Mass. 125, turned upon the point that there was no intent to aid or benefit the ship or the residue of the cargo by the removal of the keg of dollars which was lost, from the ship into the boat.

Expenses incurred by the insured to preserve the property from fire in the near or adjacent building is the subject of general average, to which the insurer and insured are bound to contribute in proportion to their property at risk. Welles v. Boston Ins. Co., 6 Pick. 182. The property immediately exposed can only be brought into contribution. ib.

There is no difference as it respects general average between an open and a valued policy. By Parker, C. J. in 2 Pick. 1.

A vessel accidentally stranded in the course of the voyage, and expense is incurred in exertions to finish the voyage, Held, that such expense is a subject of general average. 2 Pick. 1. So expenses incurred in recovering a vessel voluntarily run ashore to avoid impending danger. 9 J. R. 9. However, if by the act of running her ashore the ship is destroyed and totally lost, but the cargo saved, this is not a case of general average and the cargo is not bound to contribute. ib.

"Free from average unless general," are convertible with total loss; and under such a warranty by the insured, there must be a total physical destruction of the object insured, or a total destruction of the value. By Porter, J., 2 Miller's R. 432.

Average other than general includes every loss for which the underwriter is liable except total loss and general average. 4 Wend. 33. The meaning of the words partial loss is the same as average, and particular average comprises all partial losses except general average. ib. See 7 Pick. 259.

The terms "free from average unless general" are understood to be convertible with total loss; and under such a warranty by the insured, the law is perfectly settled in the United States, that there must be a total physical destruction of the object insured, or a total destruction of the value. Per Porter, J., 2 Miller's Lou. R. 432.

If a ship to avoid danger, be violently run ashore, and she is afterwards recovered and performs the voyage, the damages resulting from this sacrifice

are to be borne as general average. If in such case the ship is totally lost, but the cargo saved, this is not a case of general average, and the cargo is not bound to contribute. 9 J. R. 9. When the vessel is accidentally stranded, and by labor and expense is enabled to finish her voyage; the labor bestowed is in such case a subject of general average. 2 Pick. 1.

When during the course of a voyage on an inland canal, it became necessary to draw off the water; and the ship, in consequence, took the ground by accident on some piles which were not previously known to be there : Held, that this was not a stranding within the usual memorandum in the policy, the accident not having happened in the ordinary course of the voyage. Rayner v. Goodmond, 5 B. & A. 225.

A ship under conduct of a pilot in her course up the river to Liverpool, was against the advice of the master, fastened at the pier of the dock by a rope to the shore, and left there, and she took the ground, and when the tide left her fell over on her side and bilged, in consequence of which, when the tide rose, she filled with water, and the goods were wetted and damaged : Held, that this was a standing to entitle the assured to recover for an average loss upon the goods. 4 M. & S. 77.

So, a ship arrived in Hull harbor, which is a tide harbor, and proceeded to discharge her cargo at a quay on the side of it; this could be done at high water only, and could not be completed in one tide. At the first low tide the vessel grounded in the mud; on a subsequent ebb, the rope by which her head was moored to the opposite side of the harbor, stretched, and the wind blowing from the east at the same time, she did not ground on the mud, which it was intended she should do, but her forepart got on a bank of stones, rubbish and sand, near to the quay, and the vessel having strained, some damage was sustained by the cargo, but no lasting injury to the vessel; Held, that this was a stranding within the meaning of the words "warranted free from average, unless general, or the ship should be stranded." Wells v. Hopwood, 3 B. & Ad. 20.

Although the captain may be wrong in attempting to enter a port without a pilot; yet the underwriters are liable; the captain being a person of competent skill, having used reasonable diligence to obtain a pilot, and having exercised his discretion bona fide under the circumstances. Phillips v. Headlam, 2 B. & Ad. 380.

“When a ship is stranded, the assured cannot for that cause merely, immediately abandon. See the observations of Parsons, C. J., in 6 Mass. R. 479.

A foreign adjustment of an average loss is conclusive upon the parties, because it is the duty of the master to cause the adjustment to be made, and to see to the settlement of the averages: and the assessments made upon the parties may be coerced by suit or by the detention of the goods. By Jones, C. J. in 1 Hall, 430; 11 J. R. 323. It being the duty of a master to cause an adjustment to be made on his arrival at the port of destination, he may enforce the payment of the contribution, and that he has lien upon the cargo for its proportion. ib. See 5 Cowen, 63.

Abandonment.-An abandonment must be explicit and yield up all the inter