VI. George 2. c. 37. which fays, that certain policies of a par- CHA P. ticular form fhall be void, except on effects from any port in Europe, or America, in the poffeffion of the crowns of Spain or Portugal. This is a mixed policy; partly a wager policy, partly an open one: it is a valued policy, and fairly fo, without fraud or mifreprefentation. Therefore the lofs having happened, the insured is entitled to recover as for a total lofs. The infurer agreed to the value; and cannot be allowed to dispute it. The infured has received the money for a total lofs; and there is no want of conscience in retaining it. The cafes, cited at the bar, only tend to thew, that where it appears, before adjustment, to be but a partial lofs, the underwriter fhall pay no more than the real damage the reafon of which decifion is, that the infured muft fhew the whole cafe, as it then ftood. But in the prefent cafe, there was a total lofs at the time of the adjustment. The adjustment in this cafe makes an end of the queftion. Here is a folemn abandonment, and a folemn agreement, "that the insurers shall be content with salvage "in such proportion as the fum infured bears to the whole "intereft." There was a total lofs at the time of the adjustment (which is the fame as if the damages had then been recovered in an action.) Here is no fort of fraud, nor any thing that is against any law and to refund more than in that proportion would be contrary to the underwriter's own agreement. Therefore the nett proportion only, in respect to the plaintiff's subscription after deduction of falvage, ought to be returned, and that is paid into court. The poftea was ordered to be delivered to the defendant. 121 CHAP. 3 Burr. 1555. Magens 55. A CHAPTER THE SEVENTH. Of General or Grofs Average. VERAGE, in that fenfe in which we are now to confider it, fignifies a contribution to a general lofs : but in order to fatisfy the reader, it will be necellary to give a more particular defeription of it. Whatever the master of a ship in diftrefs, with the advice of his officers and failors, deliberately refolves to do, for the prefervation of the whole, in cutting away masts or cables, or in throwing goods overboard to lighten his veffel, which is what is meant by jettifon or jetfon, is in all places permitted to be brought into a general or grofs average; in which all who are concerned in thip, freight, and cargo, are to bear an equal, or proportionable part, of the lofs of what was fo facrificed for the common welfare; and it muft be made good by the infurers in fuch proportions, as Beawes 147. they have underwritten. In the works of writers upon commercial affairs, we very often meet with the word contribution, also fignifying the thing just defcribed: and in a marine sense, average and contribution are fynonimous terms. This obligation, which, by the laws of all the maritime countries in Europe, binds the proprietor of the .goods or fhip faved to contribute to the relief of those whofe goods are thrown overboard, is founded on the great principle of distributive justice: for it would be hard that one man should fuffer by an act, which the common fafety rendered neceffary; and that those who received a benefit from that act should make no fatisfaction to him who had fuftained the lofs. This obligation, which is tacitly entered into by all who have property at fea, was introduced by the Rhodians. VII. Their laws most equitably enacted, that all the property on CHA P. board fhould contribute to this neceffary and general lofs; and in modern conftitutions we find very little alteration Leg. Rhod. f. 2. in the doctrine of averages, from that established at Rhodes, art. 9. Similar regulations were made by the laws of Wibuy, and Laws of Wif as I have already said, they are now become general. From buy art. 20. L 2. c. 6. 1. 3. Molloy we learn, that the Rhodian laws upon this subject were introduced into England by William the Conqueror. Beawes is of opinion, that in order to make the act of Beawes Lex throwing the goods overboard legal, three things muft Merc. 148. concur. ift, That what is fo condemned to deftruction, be in confequence of a deliberate and voluntary confultation held between the master and men. 2dly, That the fhip be in diftrefs, and that facrificing a part be neceffary in order to preferve the rest. 3dly, That the faving of the fhip and cargo be actually owing to the means ufed with that fole view. But of thefe the firft and third propofitions may be doubted, as the fecond point alone feems to be all that is neceffary. It appears alfo, by the laws of Wifbuy, that in an emer- Laws of Wifgency of fuch a nature as to justify lightening the fhip, it buy, art. 20. was neceffary first to confult the owner of the goods or the fupercargo, but if they would not confent, the merchan- Laws of Oledize might, notwithstanding their refufal, be ejected, if ron, art. 8. it appeared neceffary to the rest of the people on board; a regulation evidently founded in neceflity, to prevent a fordid individual from obftructing a measure fo effential to the general fafety. If the fhip ride out the ftorm, and arrive in fafety at Beawes 148. the port of deftination, the captain must make regular pro- c. 6. £ 2. tefts, Molloy, 1. 2. 1. CHAP. Moufe's cafe, 12 Co. 63. [123] Ord. Lew. 14. art. 15, 16. teils, and muft fwear, in which oath fome of the crew must join, that the goods were cast overboard for no other caufe, but for the fafety of the fhip and the rest of the cargo. And as the law has authorized fuch proceedings in thefe cafes of imminent neceflity, it will protect those who act bond fide, and will indemnify them against all confequences. Thus in an action of trespass against a man for throwing goods overboard, he pleaded fpecially, that it was done in a storm, in a case of neceffity, navis levande caufâ ; and if that act had not been done, that the paffengers must all have perished. The court held, that the plea was good, and the defendant had judgment. It is evident from one of the rules above ftated, that there can be no contribution without the ejection of fome goods, and the faving of others: but it is not always neceffary for the purpose of contribution, that the fhip should arrive at the port of destination. If the jettifon does not fave the ship, but the perish in tit. Contribu. the ftorm, there fhall be no contribution of fuch goods as Ord. of Hamb. may happen to be faved; becaufe the object, for which 2 Mag. 240. the goods were thrown overboard, was not attained. But Ord. of if the ship, being once preferved by fuch means, and con2 Magens 98. tinuing her course, should afterwards be loft, the property faved from the second accident, fhall contribute to the lofs fuftained by thofe whofe goods were caft out upon the former occafion. Rotterdam, But fee page . 122. I Mag. 56. Magens, in his preliminary Effay on Infurances, advances a different doctrine, and contends, that if a ship be faved by throwing goods overboard, and afterwards perish by another calamity, the goods faved fhall not contribute to the former lofs. He puts a cafe to illuftrate his meaning; but the ordinances above referred to, as will appear from the abstract of them in the preceding paragraph, directly contradict his positions, although he feems to have had thofe ordinances in view when he advanced them. It was VII. was neceflary to fay thus much, because the doctrines of CHA P. fuch an ufeful writer are often received implicitly; erroneous opinions are adopted and confirmed, becaufe they are not accurately examined; and the more refpectable the writer is, the greater is the danger which is to be apprehended. But what is ftill more remarkable, in the very x Mag. 57next paragraph to that I laft mentioned, he puts a similar cafe, in which he admits that the goods faved ought to con tribute. I The writers upon this fubject have ftated with much minuteness and accuracy, the various accidents and charges, that will entitle the party fuffering to call upon the rest for a contribution. I doubt whether it be neceffary to be fo particular in this place; becaufe, we may gather in general [124] from the description given of average at the beginning of this chapter, that all loffes fuftained, and expenfes incurred voluntarily and deliberately, with a view to prevent a total Beawes Lex Merc. 148. lofs of the fhip and cargo, ought to be equally borne by the fhip and her remaining lading. Such for inftance is 1 Mag. 64. the damage fuftained, in defending a ship against an enemy or pirate fuch is the expense of curing, and attendance upon the officers or mariners wounded in fuch defence: and such also is the fum which the mafter may have promifed to pay for the ranfom of his ship to any privateer or pirate, when taken. A mafter who has cut his maft, part- Beawes 148. ed with his cable, or abandoned any other part of the ship and cargo, in a storm, in order to fave the fhip, is well entitled to this compensation: but if he should lose them by the storm, the lofs falls only upon the fhip and freight; because the tempeft only was the occafion of this lofs, without the deliberation of the mafter and crew, and was not done with a view to fave the fhip and lading. Upon Art. 56. the fame principle it is, that by the naval laws of Wibuy, which in this refpect, as well as in many others, have been adopted by modern states, it was declared, that when a fhip Ord. of France arrived at the mouth of a harbour, and the mafter, finding & Rotterdam, that his fhip was too heavy laden to fail up, was obliged to 2 Magens 96. 183. Molloy tit. put Average, f. 12. |