13. (Same.) It makes no difference in the application of the principle to policies of insurance, that there happens to be no cargo on board, so that there is, in fact, no contribution to be made by cargo or by freight; for general average does not depend upon the point, whether there are different subject-matters to contribute, but whether there is a common sacrifice for the benefit of all, who are, or may be, interested in the accomplishment of the voyage. Ib. 14. (Same.) Neither does it make any difference in the application of the principle, that the insurance, on which the question arises, is not for a particular voyage but on time. Ib.

15. (Cause of loss.) If the ship is so disabled by a storm that she becomes unmanageable, and thereby her boat is lost, and the loss is properly attributable to the crippled and disabled condition of the ship by the storm, the loss is properly attributable to the storm, although the cause of it did not occur during the actual continuance of the storm. The rule, causa proxima non remota spectatur, does not apply to such a case. Ib. 16. (Expense of survey.) Where a survey is properly made at a foreign port, in order to ascertain the amount of damage and the propriety of making repairs, if the damage is a peril insured against, the underwriters are to bear the expense of the survey. Ib.

17. (Survey, by whom made.) A survey need not be, though it commonly is, ordered by a court of admiralty. It may be directed by an American consul, as, by usage, a part of his official duty; or even be made by persons voluntarily appointed by the master, if, under the circumstances, that is a sound exercise of his discretion. Ib.

18. (Oath of surveyors.) There is no law positively requiring, that, in case of a survey, the surveyors should be under oath.

Ib. 19. (Fees of surveyors.) There is no statute of the United States fixing the fees to be charged by an American consul for services connected with a survey. Ib.

20. (Deduction.) In cases of repairs of the damage done to a

ship by the perils insured against, the customary deduction of one third new for old, is applicable only to the labor and materials employed in the repairs, and to the new articles purchased in lieu of those, which are lost or destroyed; and it does not apply to other incidental expenses, having no connection with the repairs or new articles furnished, and from which the assured can possibly derive no enhanced benefit or value beyond his loss, such as steamboat towage, boat hire, &c. Ib. 21. (Usage of trade.) The usage of trade must be taken into consideration in the construction of policies of insurance. Hancox v. Fishing Insur. Co., 3 Sumner, 132.

22. (Termination of.) An insurance on outfits in a whaling voyage does not terminate pro tanto with their consumption or distribution; but attaches to the proceeds of the adventure. Ib. 23. (Insurable interest.) A lien, or an interest in the nature of a lien, is an insurable interest. And it will make no difference, if the party has a right to pursue his debtor personally for the debt, on account of which the lien attached. 24. (Same.) An interest does not cease to be insurable in the progress of the voyage, simply because it is subject to contingencies, or has not at the moment any thing corporeal or tangible, to which it is attached.

Ib.

Ib.

25. (Same.) On sealing voyages to the south sea, it is the usage to take on board stores, for the use of the crew, which are dealt out and sold to them during the voyage, and constitute a lien upon their lay or share of the profits. The plaintiff who had shipped clothes under this usage, to the amount of $1000, caused the same to be insured" and the proceeds thereof," by a valued policy. After clothes to the amount of $950 had been dealt out and sold to the crew, the vessel was lost. Held, that the property insured was in the nature of an outfit, and that the plaintiff was entitled to recover the full amount of the insurance, according to the valuation in the policy, leaving to the underwriters all their rights to salvage under the abandon

26. (Same.) Quare; as to the validity of an insurance by sea

men of their shares in the proceeds of an adventure, where the shares are in the nature of wages, though given in lieu thereof. Ib.

27. (Same.) Quare; where the assured had property in the goods insured at the time of the insurance, whether a subsequent change of interest, before or after loss, would affect his right to recover.

Ib.

28. (Perishable.) Potatoes are deemed perishable articles, within the memorandum of a policy of insurance. Robinson v. Comm. Ins. Co., 3 Sumner, 220.

29. (Same.) Where there is an insurance on a perishable cargo, there can be no recovery against the underwriters, unless in a case of the total loss of the cargo, by some peril insured against; not even if 99 per cent. be lost. Ib.

30. (Total loss.) It is a total loss, where by reason of the perils insured against, the cargo is permanently prevented from arriving at the port of destination. Ib.

31. (Same.) If a vessel is injured during her voyage, to half her value, and no other vessel can be found to carry on the cargo to her port of destination, or, if the vessel, though reparable, cannot be repaired within a reasonable time, and before the cargo, being of a perishable nature, will be irretrivably destroyed by the delay to repair, in such a case the insured may abandon, and recover for a total loss. Ib.

32. (Same.) Where, in consequence of an illegal seizure, and recapture, the voyage is lost, the owners may abandon for a total loss. Williams v. Suffolk Ins. Co. 3 Sumner, 270. 33. (Partial loss.) With regard to the half value, the rule is, that the vessel, after she has been repaired, shall be of double the value of the cost of the repairs, without any deduction of one third new for old; and, that the deduction of one third new for old, is solely applicable to cases of partial loss, where the owner has come again into possession of the vessel, and has received the benefit of the repairs. Ib.

34. (Same.) The clause in the policy; "that the insured shall

not have the right to abandon the vessel, for the amount of

damage merely, unless the amount, which the insured would be liable to pay, under an adjustment for a partial loss, shall exceed half the amount insured," is solely applicable to the case of an insurance on the ship, and has nothing to do with an insurance on cargo. Ib. 35. (Negligence of crew.) If the immediate cause of a loss is a peril insured against, it is no defence, that it was remotely caused by the negligence of the master or crew. lb.

36. (Right of masters and owners to retain.) In cases of general average, the master and owners may retain all goods of the shippers, until their share of the contribution towards the average is either paid or secured. United States v. Wilder, 3 Sumner, 308.

37. (Same.) Semble, that there is no exception to the general rule in favor of the United States, or any other government or sovereignty, although there may be cases of contract, where liens on the property of government do not attach, as on that of private persons. lb.

38. (Same.) Certain slop clothing, belonging to the United

States, was shipped on board a vessel, which went ashore, and much expense was incurred in saving the goods on board; Held, that the officers of the United States, had no right to take the goods shipped by them, without paying or securing their contribution to the general average. lb.

39. (Constructive total loss.) A ship on a sealing voyage visited the Falkland Islands, where the master, with the second mate and four of the best men, were captured by Lewis Vernet, acting governor of those islands. The ship itself was also seized, and, after being in the hands of the captors two or three days, was recaptured by the mate and part of the crew remaining on board, who brought her home, and libelled her for salvage. Held, that from these events there was a loss of the voyage from necessity, so that the underwriters were liable as for a constructive total loss. Williams v. Suffolk Ins. Co. 3 Sumner,

270.

40. (Same.) The necessary sale of a vessel in the course of a

voyage to defray salvage creates of itself a total loss of the vessel for the voyage. Ib.

41. (Same.) Where the object of the voyage is entirely defeated, and the vessel is obliged to return home, it cannot be treated as a case of a voyage to a port of necessity for repairs, but there is a total loss. Ib.

42. (Loss, &c. considered as general average.) No loss or expense is to be considered as general average, and so applied in making up a loss, unless, in the first place, it was intended to save and preserve the remaining property, and unless in the second place, it succeeded in doing so. Ib.

43. (Same.) The expenses and charges of going to a port of necessity to refit, can properly be a general average only when the voyage has been or might be resumed. But the doctrine does not apply if the voyage has been abandoned from necessity. Ib.

44. (Collision.) Where a collision between two ships accidentally took place within the dominions of a foreign power, and by the laws of that foreign power all damages occasioned thereby were to be borne equally by the two vessels; Held, that such a collision was a peril of the seas, within the meaning of the common policy of insurance; and that the underwriters were liable, not only for the direct damage done to the ship insured by them, but also for the charge apportioned on such ship as her contributory share towards the common loss, not as a general average, but as properly a part of the partial loss occasioned by the collision. Peters v. Warren Ins. Co., 3 Sumner, 389.

45. (Same.) Such a charge is a part of the loss within the maxim

Causa proxima non remota spectatur. General average can be only where there is some voluntary sacrifice or voluntary expense incurred for the common benefit. Ib.

46. (Same.) The maxim, Causa proxima non remota spectatur, is not of universal application in the law; and does not exclude incidental losses, flowing as a legal or natural consequence from the direct injury or loss to the thing insured. lb.

47. (Same.) Semble, that a loss by an accidental collision of two