they are made liable for the major. In seeking for an explanation of this apparent inconsistency, one can be found alone in the circumstance that after a ship's loss proof of her exact condition at the time of the event is next to impossible. With lost ships, like the destroyed cities alluded to in sacred writ," their memorial is perished with them."

I trust that in thus commenting freely on these important decisions of the very learned Lord Chief Justice, I shall not be charged with a want of deference for a judge who has two claims on our respect-being now laden with years as well as with honours.

Since the above remarks were written, the case of Thompson v. Hopper has again been before our Courts. The principle involved and the particular circumstances connected with this issue must be supposed to have received no small degree of consideration; a decision, therefore, on the whole matter will have very great weight.

The cause having been appealed on the ground of misdirection of the Judge (Queen's Bench, Exch. Chamber, July, 1858), the Court gave judgment, and the majority of judges was against the appeal. It was held that unseaworthiness per se was no defence to an action on a time-policy, and the previous judgment of the Queen's Bench was upheld. Some important observations were made by the Judges in giving their decision.

WILLES, J., said, "In the absence of any wrong or breach of contract on the part of the owner, unseaworthiness is no answer, In effect, there being no

violation of the law, and no fraud in the assured, an increase of risk to the subject-matter of the insurance, its identity remaining, though such an increase of risk be caused by the assured, does not avoid the insurance."

In the course of the judgment the distinction is drawn between a proximate and an immediate cause; so that a ship may be lost from a cause independent of her unseaworthiness, and the loss be recoverable. The maxim of "Dolus circuiter non purgatur" was referred to. But the damnifying act may be apart from an intention of damnifying, and may be innocent of consequences.

348

PART THE FIFTH.

OF PROCEEDINGS IN CASES OF

AVERAGE.

In Ship Averages.

An intelligent shipmaster, often assisted by his mate or first officer, keeps himself informed of all the circumstances relative to the disasters which lead to the losses and disbursements which we name Averages. He enters a tolerably minute record in the ship's journal or log-book, from watch to watch, of all that transpires. On touching land his first care is to note his protest, which preliminary step must be taken within twenty-four hours from the time when such opportunity can be had. He extends his protest afterwards, at his leisure, taking care that it shall be a correct and clear statement of the events of the voyage. In both these steps he must be assisted by a Public Notary, or the Consul or the Tribunal of Commerce, if abroad. If at a port in Great Britain little frequented, when there happens to be no notary resident or within access, he will go

to the nearest Master Extraordinary in Chancery or a magistrate, as a substitute. He will also make a statement of the accident which has happened, to the Receiver of Wreck, who forwards two reports, one to the Government-office and one to the Secretary of Lloyd's. Thus much for official acts. If the master finds that he requires advice or assistance from others he will generally apply to the Agent of Lloyd's, who holding his appointment from the committee of that establishment has some little authority, although vague, in cases connected with the underwriters, and who also carries some weight with various marine insurance offices and associations of underwriters, in virtue of the position he holds in respect to Lloyd's or by direct appointment as agent to the other companies and associations mentioned.

An agent or a sub-agent to Lloyd's he is pretty sure to find at every port of importance or line of coast in our islands. It is not a necessity, however, that he should apply to this agent; there may be no insurance on ship or cargo rendering his interference or advice necessary. He may, rather, select a general agent or some merchant to assist him in his proceedings. And, now, by the reticulation of the electric telegraph, he is able to communicate from almost all places in Great Britain with his owner, who, if the case seem to require his presence, can by the assistance of the railway reach the place where the ship is in a few hours. But if in a foreign country, and without the possibility of asking for the advice or the presence of the owner to aid him, a shipmaster

must depend greatly on himself; and even though he employ a commercial agent, which will generally be found a great convenience, he should never forget his own responsible position, or slacken in that energy and decision of character which will bring a man out of many difficulties. This is sometimes seen in his dealing with salvors and boatmen, who, though a bold and useful set of men, often require to be met by a front of determination to prevent excessive demands or unrequested interference. An active master, assisted by his agents, will seek for good and economical tradespeople in repairing the ship; he will personally superintend the work himself, and will take care that credit for old material and discount for prompt payment are duly deducted from the bills. He will also try and find the least expensive means for raising funds to meet the disbursements. Before he leaves the place he will take care to have all bills paid, and entered in a general account; and that document is sometimes certified by the Consul. Before effecting repairs, the ship should be carefully and minutely examined by surveyors, whose recommendations it is best, as a general rule, to follow.

The documents necessary to support a claim against the underwriters are the protest, the surveys, the general account of disbursements, the vouchers or receipted bills embraced by the general account, the rate of exchange, the bottomry bond, the value of ship, cargo and net freight, the ship's policy, and any letters which may throw light on the transaction or give any information about it.