damage or waste them to a great extent. Nay, ordinary causes, such as humidity of atmosphere, the heat of the ship's hold, or the dampness that commonly is found in a ship, will produce deterioration, decomposition or germination without waiting for more definite accidents. And then the difficulty of attributing damages of this kind to their authentic source, and the still greater difficulty of distinguishing between damage where two causes have been at work has made it expedient, both in order to avoid disputes and to obtain a moderate scale of premiums, that either such goods should be excluded altogether from Average claims or that a higher limitation should be put upon them. But again, as with ships, a stranding destroys the warranty and lets in a claim against underwriters be it large or small. It is useless to discuss farther either the reason or the usefulness of this regulation, but it is invariable. As one advantage of this limited liability with regard to claims for Particular Average is to prevent the necessity of excessive premiums, it stands as a general condition: but in cases where it is desired to obtain a larger indemnity a special agreement can be entered into with the underwriters, making fresh terms as to the payment of Average in consideration of giving them an extra premium for that additional risk. This agreement being made in writing will override the usual printed warranty. In some foreign policies the warranty has a rather different signification. It not only requires that the damage should amount to a certain proportion of 1 the value of the goods insured, but it gives to the assured, in case of Average, only that portion of the loss which exceeds the agreed limit, which is there called the franchise or affranchisement. We shall see hereafter that this arrangement is adhered to in English policies in the case of one particular kind of goods. Distinction between Partial Loss and Particular Average. A Partial Loss and a Particular Average are distinguished in this respect, that the former is a loss. arising on damaged goods which are sold at some place short of their destination; and the latter is the loss arising when damaged goods are sold at the proper termination of the voyage. In both cases the original cause of damage must be a peril of the sea, which includes fire and some other things. There is this further difference between the two;that in a Partial Loss, the claim, when the goods are in packages, is paid although it do not amount to the 3 or 5 per cent., or other limit as warranted; whilst it is essential that a Particular Average should reach the limit in the warranty. The two species of loss are considered strictly as different in nature, and they are not allowed to influence one another. Thus, suppose a Partial Loss on goods be settled on a policy to the extent of 1 per cent. of their value; and that afterwards a Particular Average be made up which would amount to 1 per cent. independently, it is not allowable to add the Partial Loss to the Particular Average in order to make the latter a claim on the policy. The Average must reach the necessary limit independently of the Partial Loss. OF A TOTAL LOSS OF PART OF THE GOODS The policy contemplates in its provisions each single interest insured. When it speaks of 3 per cent. or 5 per cent. it means that proportion of the whole interest in any one description of goods. When more than one description of merchandise is included in the same interest, as when silk and tea are shipped by one person in China to one person in England, or cotton and wheat are shipped at Alexandria in the same way, the policy does not confound the descriptions of goods; each is to stand separately on its own basis as regards its warranty. But it often happens that separate interests are insured on the same policy. Although they are thus accidentally united by being on the same document, they are to all intents and purposes distinct insurances; as much so as if each had its separate policy. The claim, then, must be tested by observing whether it amounts to the necessary percentage on the entire interest, if of one kind of goods only; or on the whole value of each description of goods, when there are more than one contained in the interest. This distinction of species has been dwelt upon in the two late cases, more H 1 fully mentioned hereafter, of Entwistle v. Ellis, and Wilkinson v. Hyde.† It is to be recollected that the use of the word "species" in law is not technical: thus, in a policy on "fruit," if there were oranges and lemons, the loss of all the lemons would not be exigible on the underwriters if the oranges remained. The botanical distinction of species is not recognised. But when goods are shipped in separate packages, a concession is usually made by the underwriters that they will not only pay a claim if it amount to the warranted limit on the whole interest, but also if it rise to the limit on certain specified divisions of the interest. This permission is legally pronounced to be cumulative, and not restrictive; that is, it confers an additional advantage to the person insured, and is not to act against him by taking away any part of his original right. This is called the Average Clause. It is fixed variously. In some particular trades it amounts almost to a custom; as with West India sugar, where the clause is almost invariably, "to pay Average on each 10 hogsheads, of following landing numbers." In other cases it depends upon the desire of the assured or the views of the underwriter. But if it is wished to avoid disputes when a claim arises, some agreed Average clause should always be inserted in the policy. The general intention is to give the assured considerable protection, but not to reduce the subdivisions of an interest very low. Thus we see such Average clauses as the following;-" On each Bale of Silk." "On each Case or Seron of Indigo * Common Pleas, Nov., 1857. † Common Pleas, Feb., 1858. 99 or Cochineal." "On each five, or each ten Bales of Wool." "On each twenty Bales of Cotton.' "On each ten Chests or twenty Half Chests of Tea." "On each fifty, or one hundred Bags of Sugar or of Rice." "On each Case or Bale of Manufactures." "Each Cask of Hardware." Sometimes it is specified that these subdivisions, or series as they are called, are to be connected by their coinciding with following invoice numbers; sometimes with following landing numbers; sometimes the option of either is given. But in the quantity contained in a series, in the order in which it is to be taken and other matters, there is a wide range for various stipulations between the assured and the assurers. The introduction of the Average Clause is, of course, of great advantage to the assured; for by its action a comparatively small loss becomes claimable against the underwriters. Thus, the loss of a single package is 5 per cent. upon 20 packages, and the loss of a package and a half is 3 per cent. upon 50 packages. These preliminary remarks embrace generally claims for damage to all descriptions of goods. We will now see their bearing upon that part of the subject immediately before us. If, owing to perils of the sea, a Ship laden with a cargo in bulk, such as wheat or salt, both which are warranted "free from Particular Average," by the printed memorandum, puts into a port of distress and there sells a portion of her cargo in consequence of damage, the loss by that sale would not be allowed |