point, and there is no mercantile usage stated, to guide us; we
must, therefore, resort to the general principles on which this Ave-
rage law rests. We begin with the definition of General Average
by Mr. Justice Lawrence in Birkley v. Presgrave (1 East, 228)-a
loss arising out of extraordinary sacrifices made, or expenses in-
curred, for the preservation of the ship and cargo-meaning for the
joint benefit of the ship and cargo, and which must therefore be
borne proportionably by all who are interested. Here it cannot be
said that there was any sacrifice, as in cases of jettison of part of
the cargo, or a voluntary cutting away of masts and sails of the
ship. The stranding was fortuitous, arising directly from the perils
of the sea.
The expenses, to constitute General Average, must,
therefore, be brought within the second category-extraordinary
expenses incurred for the joint benefit of the ship and cargo. They
were extraordinary expenses, not to be ascribed to wear and tear,
and therefore to be borne by the underwriter; but are they to be
considered as incurred for the joint benefit of the ship and cargo,
so that a portion of them ought to be borne by the owner of the
cargo, or the underwriter of the cargo? Although the stranding
was fortuitous, all expenses incurred from the misadventure, till the
whole of the cargo had been discharged, confessedly constituted
General Average. But how can it be said that subsequent expenses,
of getting off the ship and taking her to Liverpool for repair, were
of the same character? The employment of a steam-tug and the
cutting out of a channel, by which the ship was rescued, cannot, as
was contended for, be part of the same operation as the unloading of
the cargo; for the case expressly finds that the steam-tug did not
work at the ship until after the cargo had been landed and the coals
and ballast taken out of her. We therefore do not see how these
expenses are to be distinguished from the expenses of repairing the
ship when she had been brought to Liverpool, which it is admitted
must fall exclusively on the owner of the ship or the insurers of the
ship, as Particular Average. If the owner of the ship was to earn
a stipulated freight by carrying a cargo to Newfoundland, it was his
duty to repair her, and to carry her to a place where she might be
repaired. Mr. Blackburn's position is, that the end in view of every
maritime adventure being the arrival of the ship with her cargo at
her destination, extraordinary acts done to effectuate that, giving
rise to General Average, would justify him in contending that these
expenses do not constitute Particular Average. But, unfortunately
for him, the expenses incurred in repairing the ship at Liverpool,
according to this reasoning, would equally be General Average; for
the repairing of the ship was an extraordinary act, which was neces-
sary for the arrival of the ship with her cargo at Newfoundland, and
this was as much for the joint benefit of the ship and cargo as the
bringing her to Liverpool from Malahide, under the circumstances
stated, after the cargo had been safely discharged and warehoused.
It does not appear that it was for the advantage of the owner of the

cargo that the "Snowdon" should be got off the strand to repair; and, of course, we do not, contrary to the intention of the parties, attach any importance to the fact that the cargo was forwarded by another vessel; and we should give our decision as if the "Snowdon," after she had been repaired, had carried the cargo to its ultimate destination. But, in the absence of any statement to the contrary, we must infer, as the fact undoubtedly is, that there would be no difficulty in forwarding the cargo by another vessel. We do not say there may not be a case where, after the fortuitous stranding of the ship, and the cargo being unloaded, the expenses voluntarily incurred by the owner of the ship to get her off and enable her to complete the voyage, whereby the cargo, which must otherwise have perished, is carried to its destination, may be General Average; as the stranding of a ship, with a perishable cargo, on a desert island in a distant region of the globe. But in the present case, the owner of the ship, after the cargo was discharged, appears to have done nothing except discharging his ordinary duty as owner, and for the exclusive benefit of the ship. Notwithstanding some expressions of Lord Ellenborough in Plummer v. Wildman, we consider it quite settled that, by the law of this country, the expenses of repairing the ship, after the cargo is safe, to bring her to a place to be repaired, cannot under such circumstances be made the subject of General Average. We have examined all the authorities which were cited in the argument, but, not considering that there would be any further argument upon it, we give judgment against the defendant, as underwriter of the ship, in respect of the sum of money due for the expenses in question of Particular Average.

APPENDIX, No. 9.

EFFECT UPON FREIGHT OF THE ABANDONMENT OF
A SHIP.

MILLER v. WOODFALL.

Queen's Bench, November, 1857.

LORD CAMPBELL, C. J., in delivering the judgment of the Court, said: In this case, the first question which we are called upon to answer is, "Whether anything in the nature of freight, for the entire voyage from St. John's to Liverpool, passed to the underwriters on the ship, on the abandonment of the ship?" If the goods, on board the ship at the time when the casualty to which the abandonment refers occurred, had belonged to third persons, for whom they were to be carried on freight from St. John's to Liverpool,

on

there can be no doubt that, by our law, the right to the whole of that freight would have passed to the abandonees of the ship. The abandonees are considered as purchasers of the ship at the moment of the casualty to which the abandonment refers; and although the contract of a shipowner does not run with the ship, it is well settled that, as incident to the ship, the right to the whole freight, pending at the time of the sale and subsequently earned, belongs to the purchaser of the ship. The American Courts,-presuming that ship and freight are always separately insured, and taking into consideration the respective rights and equities of the different sets of underwriters, when the loss is finally adjusted among all parties, assured and assurers,—make an apportionment of the freight earned partly before and partly after the casualty for which the abandonment of the ship is made; so that the freight earned previous to the casualty may go for the benefit of the underwriters on freight, to whom there has been an abandonment, and only the freight earned after the casualty vest in the abandonee of the ship. (See the authorities collected, 2 Arnould, s. 404.) But (as in the present case), in adjusting the rights of assured and assurer, ship, we do not look beyond these parties; and the abandonee of ship, like the purchaser, has a right to the whole of the freight pending at the time of the casualty, although he could not claim freight paid or completely earned in a prior part of the voyage. (Stewart v. the Greenock Marine Insurance Company, and the Scottish Marine Insurance Company v. Turner.) But in the case which we have now to decide, at the time of the casualty there was no freight pending. The goods in the ship were the property of the owner of the ship; he was carrying them on his own account, and he could have no contract with himself. As between him and the underwriter on ship it was quite immaterial that, under the designation of "freight," he had insured with other underwriters the increased value of his goods by reason of their being carried from St. John's to Liverpool. Considering as a test what would have passed to the purchaser on a sale of ship at the time of the casualty, it seems clear that he could have had no claim against the vendor in respect of the goods having been carried in the ship from St. John's to Southport before the sale. No more can the abandonee. At the moment of the casualty the goods had become more valuable to the owner from being carried the greatest part of the voyage, and he might have sold them afloat at an increased price. This is rather analogous to the case of freight earned and recovered by the owner of the ship before the abandonment; to which the abandonee of the ship would have no claim.

We are, therefore,

of opinion that it is only for any benefit which the owner of the goods may have derived from the use of the ship subsequent to the casualty, that the abandonees can claim compensation in the nature of freight. But for so much of the cargo as was brought in the ship from Southport to Liverpool, we think such compensation is due

from the plaintiff, as owner of the goods, to the abandonees. For the part of the cargo brought by the plaintiff in lighters from Southport to Liverpool, we think no such compensation can be claimed; as this operation was conducted by the plaintiff himself for his own benefit, and this part of the cargo must be considered as finally severed from the ship at Southport. The principle on which the compensation due ought to be calculated, we think, is by considering for what sum the part of the cargo brought in the ship to Liverpool might have been conveniently forwarded from Southport to Liverpool in another ship, according to the current rate of freight, to be adjusted by an average settler, according to the agreement of the parties.-Law Journal.

APPENDIX, No. 10.

OVER-INSURANCE; DEFICIENCY OF INTEREST; AND WAGERING POLICIES.

AT page 184 et infra, a formula is given of the manner in which the value of goods is made up for insurance. The value in a policy must always commence with a real and valid interest of monetary value; but to the first cost may be added all incidental expenses, a reasonable profit, and the cost of insurance, and commission for recovering on the policy in case of loss. Some persons, however, entertain strong prejudices about interest; and many feel timid lest by insuring much above the cost of the goods they should legally invalidate their insurance. The prejudice and the fear are almost groundless in our days, but they arose out of a state of things which a century ago had grown to an outrageous height, and was endangering the system of insurance by reducing it to the level of a great game of chance. The law interposed; and by strictly defining the nature of insurable interests, and by voiding no-interest or wagering policies, brought back underwriting to its legitimate office. as in all cases where castigation has been used, a greater or less fear of the rod follows as a consequence, so persons grew timid or fastidious on the subject of interest. The wrong impressions have been partly done away by some late decisions on life policies. And lest an assured should feel doubts as to his position, I extract some instances collected by the writer of an article on assurance in the Edinburgh Review (Jan., 1859), which will serve to show what sort of abuses had come to pass under the cloak of insurance, and how necessary it was for Legislature to interfere in preventing wild speculations in contingencies, which bargains were then named Insurance Wagers."

But

"Some of these establishments," says the reviewer, "wagered

301. against 1007. that King William the Third (who was then carrying on war with France) would not reduce the City of Namur before a given date; others wagered on the period of favour to be enjoyed by the mistresses of some foreign potentate; and wagers were actually laid on the sex of the notorious Chevalier D'Eon, as to whether he was a male, as he pretended to be, or a female, as he was reputed to be. A common stake at hazard was the duration of the lives of persons believed to be on their deathbeds. The London Chronicle, of 1768, published the

following observations:

"The introduction and amazing progress of illicit gaming at Lloyd's coffee-house is, among others, a powerful and very melancholy proof of the degeneracy of the times. Though gaming in any degree is perverting the original and useful design of that coffeehouse, it may be in some measure excusable to speculate on the following subjects:-Mr. Wilkes being elected Member for London; which was done from 5 to 50 guineas per cent. Mr. Wilkes being elected Member for Middlesex, from 20 to 70 guineas per cent. Alderman Bond's life for one year, now doing at 7 per cent. On Sir J. H. being turned out in one year, now doing at 12 guineas per cent. On John Wilkes' life for one year, now doing at 5 per cent.N. B. Warranted to remain in prison during that period! On a declaration of war with France or Spain in one year, 8 guineas per cent. But when policies come to be opened on two of the first peers in Britain losing their heads, at 10s. 6d. per cent., or on the dissolution of the present Parliament within one year, at 5 guineas per cent., which are now actually doing and underwritten, chiefly by Scotsmen, at the above coffee-house, it is surely high time to interfere.' Royalty itself was included. The Public Advertiser, of Dec., 1771, contradicting an account of the illness of the Princess Dowager of Wales, concludes such reports being only calculated to promote the shameful spirit of gambling by insurances on lives.' Insurance

6

schemes have been propounded for insuring against housebreakers and highwaymen; against lying, or death by drinking gin; for dealing in hops, for a flying-machine, for insuring of horses, &c. Large sums were paid by the underwriters at Lloyd's, who speculated upon the failure of a young man who had undertaken for a wager to go to Lapland, and bring back within a given time two rein-deer and two Lapland females-and he brought them all. But the climax of impudence was reached during the era of the South Sea Bubble, by a scheme in 'Change Alley for the insurance of female chastity, and by another against divorces."

The writer of this article might have added to his list the following three contingencies, which may be done at this minute, against hail, against breakage, and against twins. The last can be done at one per cent., so as to leave a profit.

The Act for the Suppression of Gambling Insurances was passed in 1774. Wager policies were by it rendered illegal. But though