customs it is to be construed, and by them only. Some of the assured hold on the contrary that the mere jus loci of the contract is not to circumscribe their indemnification; that it is in accordance with the spirit which animates the system of insurance that they should have, under a policy, an ample indemnity against all risks; that variation in the laws which in foreign countries regulate Average Contribution is one of the risks; and that as the insurers know the port to which the ship is bound, they must take that contingency into account in fixing their premium. Impressed by the force of such an argument, underwriters have in many instances of late given way to it, and have paid Average on foreign adjustments upon this special reason, that had they been requested, they would have introduced the foreign General Average clause into the policy without asking any additional premium, and it therefore becomes a matter almost of indifference whether it is introduced or not. This silent manner in which precedents are established and customs grow up, is, however, very dangerous. When a quasi custom begins to obtain, competition soon makes it binding on others who do not admit the principle, but who may by disputing it be placed in invidious contest with their more facile competitors. "Custom ought to have no weight when inconsistent with equity," says Lord Kames, and I confess that I look upon the concession of paying on foreign statements when there is no foreign clause as a hazardous admission. I could adduce in analogy the case of probates and letters of administration, which must be

taken out in the province where the will was made or the effects are administered, but are valueless when granted in another province although the deceased had lived in it at the time of his death. In the place where a contract is made it ought to be construed.

Arnould effectively decides, against my view, in favour of payment on foreign statements. He says an English underwriter is bound by a foreign adjustment when rightly adjusted according to the laws and usage of the foreign port: but unless it can be clearly proved that it was in strict conformity, he is not bound. He relies on two cases cited by Park, Newman v. Cazalet, and Walpole v. Ewer. The latter seems to have been decided against the defendants on a technical point; for Lord Ellenborough said that there must be an allegation of the fact as to law and usage, but here the declaration contained none. Sir J. Arnould then continues, "it appears an almost unavoidable inference from these expressions of Lord Ellenborough, that where ship and goods are insured for a voyage from this country to a foreign port, and sufficient evidence is given of an invariable usage at such port to adjust, as General Average, losses which are not so in this country, the English underwriter is bound thereby, on the ground that he must be taken to have notice of the usage prevailing at the foreign port to which the contract of insurance relates, and by reference to which it ought to be construed. He must have contemplated the possibility of the interest having to pay Average in a foreign country." See Arnould, p. 944 et infra.

Now it will be observed that in these remarks of the learned writer on Insurance two things are involved:-First, that in an action against an underwriter for recovery of the sum contributed by a foreign Average adjustment the burthen of proof lies with the plaintiff to show that that adjustment has been made up in strict conformity with the law and usage of the place. And if the adjustment has been made in a place little known or not much frequented, and the defendant should traverse and allege that the adjustment is not in conformity, &c., and so put the plaintiff on his proofs, it might be highly difficult to bring the necessary evidence, and it might even require that he should send a commission to that foreign place to establish the fact; the expense of doing which might deter him from proceeding. No one asserts that an underwriter is bound even by an English adjustment unless it be a correct one; but supposing the foreign adjustment to be correct, this writer decides that it is binding on the underwriter. And he justifies this decision by an argument, in the second place, which is of large application,— viz., on the implied notice which the underwriter is taken to have of the prevailing law and usage of Average in every port and place which is the terminus ad quem of any voyage a ship which he insures may be on. Now, were this principle applied to every other circumstance relating to an insurable interest about which there is the possibility of the underwriter procuring information for himself, i. e., about which he is taken to have notice, it appears to

me that he would rarely be in a position to defend himself in any case of suppressio veri or of misrepresentation.

The value, however, taken in foreign statements is not held to be binding on the English underwriter who has even agreed to the foreign Average clause, or who interprets his liability most liberally. He will only pay on a value within, or co-extensive with, the value insured; for it would be irrational to suppose that a shipper who only partially insures his goods should have all the benefit which he might have secured if he had paid for an insurance on the full amount of his interest.

90

PART THE SECOND.

OF AVERAGE CONNECTED WITH

INSURANCE.

OF INSURANCE ITSELF.

We have now arrived at that point where Insurance enters as an essential part of the subject,-in fact, becomes the groundwork of all that has to be said about it. With regard to General Average, which is, as I have shown, a contribution made amongst certain persons whose interests are associated for a particular period or in a particular adventure, Insurance may or may not be connected, but it is not a necessary accompaniment. Here, on the other hand, the contract by which one person binds himself under certain limitations and conditions to take on himself a definite risk belonging to another, is the first cause of every question that can be agitated about Average.

It is not my intention to enter very largely or minutely on the subject of Insurance, which is one so extensive that the learned persons who have written upon it have filled volumes with the theme. These writers have looked on Average as a subordinate part only of their design;-an important one, it is true,