be shown or admitted to have been seaworthy when she sailed, the jury need not be told to exclude the expense of such repairs from their estimate, though, but for the casualty which caused the loss, the decayed parts of the ship might have been strong enough for the voyage." And his summary, after adducing the case of Phillips v. Nairne, is, "The rule, therefore, on the whole, appears to be this: if the ship was seaworthy when she sailed, the assured may abandon, and recover for a total loss wherever by the perils insured against the ship is so damaged that she cannot be rendered navigable again, except at a cost greater than her repaired value; and in estimating such cost, no deduction is to be made for the incurred expense of repairs arising from her age or state of decay: if, however, she can be repaired, so as to keep the sea, at a less cost than her repaired value, the assured cannot elect to abandon merely because, owing to her decayed condition, the expenses of complete repairs would be greater than this."†

Thus, it would seem that, as the law at present stands, underwriters are responsible not only for the results of sea-perils, but also for the chronic state of weakness and the defects inherent in the ship, but which might have been concealed still longer except from some definite accident which revealed her condition.

On Goods.

There is not much difficulty in general about losses on goods. If they are damaged to a considerable † Arnould, p. 1105.

*

Arnould, p. 1102.

extent, and the surveyors are of opinion that it would be more advisable to sell them on the spot than to re-ship them and send them on to their destination, it is considered conclusive as to goods insured against all risks. Perhaps, however, the position may be considered a little shaken by the late decision of Tronson v. Dent. The main difficulty arises in respect to goods warranted in the policy "free from Particular Average." It requires strong proof that none of the goods could have arrived at their destination as goods. There can be really very few instances where this is literally the case. The proof of this ought to be very convincing and clear; for if the smallest portion of a cargo could really be brought to its port of destination, it would be an arrival which would negative a claim for total loss.* We must look to the true object and intention of contracts. When the policy "free from Particular Average," or "against total loss only," the animus of that condition is to free underwriters from the effects of sea-water and other damages. They wish to protect the merchant from the absolute loss of his shipment, and they charge a lower premium accordingly; one which takes into account that they are set free from certain contingencies which policies against all risks are open to. We must not then allow excepted risks to steal in under changed or feigned names. Nor must we permit the

says

But in the recent case of Wilkinson v. Hyde, previously quoted, the saving of a few small packages out of a number containing various kinds of goods, was not allowed to defeat the assured's claim for a total loss.

most ingenious sophistry "to convert that into a total loss which was not one in its own nature." Having taken this precaution a case will now and then present itself where a cargo is truly on its way to perfect destruction, and is stopped on its way by sale, and thus some saving effected on it. A cargo of fruit after damage may by a long detention arrive at such a condition that it is quite clear that when the vessel would reach her destination the fruit would be utterly worthless, and be reduced to a dangerous nuisance; so that even expenses would have to be incurred to get rid of it. Again, a corn cargo may be heating to that degree that not only it is hourly losing its value and its distinctive character, but is producing danger of the ship being burnt, or the lives of the crew being sacrificed.

On Profits and Commissions.

All real interests contingent on the arrival of a sea-going vessel are insurable. If goods shipped to my account, and assured abroad to the extent of the invoice, are likely to realise a profit over and above the amount already covered by insurance, that expected profit is at stake, and I may insure a further sum to render myself secure from the risks of the voyage. Or, if a cargo is to be consigned to me upon which I shall realise a commission as agent or factor, I have also an interest in the arrival of that cargo, for if it do not arrive I shall lose my commission. The usual manner of insuring such interests is with a clause which expresses that they are "free

from Average, and without benefit of salvage." There is, perhaps, no good reason why they should be free of Average, if it be Particular Average that is meant, because the profit is really only the completion of a sum which was not commensurate with the true value of the goods till this addition was made to it. And with regard to General Average, the underwriters are as much exposed to total loss on this as on any other part of the interests, and therefore they are as much concerned in any steps by which that loss is averted. However this may be, these insurances are generally understood and stipulated to be against total loss only; and it, accordingly, becomes exceedingly important to decide what is a total loss of such an interest in the constructive view. I must repeat that the safest guide to a decision in all such matters wherein a question is raised is to ascertain what really is the position of the assured, and what was his intention in insuring. This would save much debating and much legal discussion. If we combine the intention of the person insuring with the exact words inserted in the policy, we shall probably be able to answer any question arising upon the subject with accuracy. Two things are sufficiently clear; that the general intention of such insurances is to protect the assured in case by any accident the expected merchandise does not arrive, does not come into his hands,—for then he loses what he would have gained by its arrival, viz., his profit or his commission: and we must look, therefore, very broadly and strongly on the primá facie fact of non-arrival :-secondly, it is equally to

be held in mind that the underwriter is not liable for damages called Particular Average, and that he cannot pay a salvage loss. There can never be any salvage to him, because where goods are sold at an intermediate port the original underwriters on the goods take all the proceeds. If the goods are valued in their policy at a certain sum, they must not be sufferers by an increased valuation made afterwards without their knowledge or concurrence, by having some of the proceeds of the goods given to the subsequent underwriters. We see, then, that there can be no salvage. It is a question of arrival or non-arrival. The arrival of the smallest quantity of the commodity would be sufficient to establish the warranty, and, consequently, their position must not be injured by the will and choice of the master, agent or others, who might determine to sell the whole cargo at an intermediate port, although it contained some small proportion of sound, as being the easiest and most expeditious method of dealing with the whole concern. On the other hand, if there be a real necessity to sell the cargo short of its destination, even though the distance between the two places was only small, it would be a loss within the meaning of the policy: for the effect of that sale would be the same as if it were sold a thousand miles away,-it would deprive the assured of the profit he expected by its arrival at a particular market, or his commission on its sale by him. We remember a case where a cargo of potatoes coming to London had been sunk, and the potatoes were landed at Gravesend. The distance being small,