is totally lost, the measure of indemnity is such proportion of the sum fixed by the policy as the insurable value of the part lost bears to the insurable value of the whole, ascertained as in the case of an unvalued policy:

(2) Where part of the goods, merchandise, or other moveables insured by an unvalued policy is totally lost, the measure of indemnity is the insurable value of the part lost, ascertained as in case of total loss: (3) Where the whole or any part of the goods or merchandise insured has been delivered damaged at its destination, the measure of indemnity is such proportion of the sum fixed by the policy in the case of a valued policy, or of the insurable value in the case of an unvalued policy, as the difference between the gross sound and damaged values at the place of arrival bears to the gross sound value:

(4)

"Gross value" means the wholesale price or, if there be no such price, the estimated value, with, in either case, freight, landing charges, and duty paid beforehand; provided that, in the case of goods or merchandise customarily sold in bond, the bonded price is deemed to be the gross value. Gross proceeds" means the actual price obtained at a sale where all charges on sale are paid by the sellers.

72.-(1) Where different species of property are insured under a single valuation, the valua tion must be apportioned over the different species in proportion to their respective insurable values, as in the case of an unvalued policy. The insured value of any part of a species is such proportion of the total insured value of the same as the insurable value of the part bears to the insurable value of the whole, ascertained in both cases as provided by this Act. (2) Where a valuation has to be apportioned, and particulars of the prime cost of each separate species, quality, or description of goods cannot be ascertained, the division of the valua tion may be made over the net arrived sound values of the different species, qualities, or descriptions of goods.

73.-(1) Subject to any express provision in the policy, where the assured has paid, or is liable for, any general average contribution, the measure of indemnity is the full amount of such contribution, if the subject-matter liable to contribution is insured for its full contributory value; but, if such subject-matter be not insured for its full contributory value, or if only part of it be insured, the indemnity payable by the insurer must be reduced in proportion to the under insurance, and where there has been a particular average loss which constitutes a deduction from the

contributory value, and for which the insurer A.D. 1906. is liable, that amount must be deducted from the insured value in order to ascertain what the insurer is liable to contribute.

(2) Where the insurer is liable for salvage charges the extent of his liability must be determined on the like principle.

74. Where the assured has effected an Liabilities parties.

insurance in express terms against any liability to third to a third party, the measure of indemnity, subject to any express provision in the policy, is the amount paid or payable by him to such third party in respect of such liability.

measure of

75.-(1) Where there has been a loss in General prorespect of any subject-matter not expressly visions as to provided for in the foregoing provisions of indemnity. this Act, the measure of indemnity shall be ascertained, as nearly as may be, in accordance with those provisions, in so far as applicable to the particular case.

(2) Nothing in the provisions of this Act relating to the measure of indemnity shall affect the rules relating to double insurance, or prohibit the insurer from disproving interest wholly or in part, or from showing that at the time of the loss the whole or any part of the subject-matter insured was not at risk under the policy.

warranties.

76.—(1) Where the subject-matter insured Particular is warranted free from particular average, the verant assured cannot recover for a loss of part, other than a loss incurred by a general average sacrifice, unless the contract contained in the policy be apportionable; but, if the contract be appor tionable, the assured may recover for a total loss of any apportionable part.

(2) Where the subject-matter insured is warranted free from particular average, either wholly or under a certain percentage, the insurer is nevertheless liable for salvage charges, and for particular charges and other expenses properly incurred pursuant to the provisions of the suing and labouring clause in order to avert a loss insured against.

(3) Unless the policy otherwise provides, where the subject-matter insured is warranted free from particular average under a specified percentage, a general average loss cannot be added to a particular average loss to make up the specified percentage.

(4) For the purpose of ascertaining whether the specifi d percentage has been reached, regard shall be had only to the actual loss suffered by the subject-matter insured. Particular charges and the expenses of and incidental to ascertaining and proving the loss must be excluded.

77.-(1) Unless the policy otherwise provides, Successive and subject to the provisions of this Act, the losses.

A.D. 1906. insurer is liable for successive losses, even though the total amount of such losses may exceed the sum insured.

Suing and labouring clause.

Right of

(2) Where, under the same policy, a partial loss, which has not been repaired or otherwise made good, is followed by a total loss, the assured can only recover in respect of the total loss:

Provided that nothing in this section shall affect the liability of the insurer under the suing and labouring clause.

78.--(1) Where the policy contains a suing and labouring clause, the engagement thereby entered into is deemed to be supplementary to the contract of insurance, and the assured may recover from the insurer any expenses properly incurred pursuant to the clause, notwithstanding that the insurer may have paid for a total loss, or that the subject-matter may have been warranted free from particular average, either wholly or under a certain percentage.

(2) General average losses and contributions and salvage charges, as defined by this Act, are not recoverable under the suing and labonring clause.

(3) Expenses incurred for the purpose of averting or diminishing any loss not covered by the policy are not recoverable under the suing and labouring clause.

(4) It is the duty of the assured and his agents, in all cases, to take such measures as may be reasonable for the purpose of averting or minimising a loss.

Rights of Insurer on Payment. 79.-(1) Where the insurer pays for a total subrogation. loss, either of the whole, or in the case of goods of any apportionable part, of the subjectmatter insured, he thereupon becomes entitled to take over the interest of the assured in whatever may remain of the subject-matter so paid for, and he is thereby subrogated to all the rights and remedies of the assured in and in respect of that subject-matter as from the time of the casualty causing the loss.

Right of contri

bution.

(2) Subject to the foregoing provisions, where the insurer pays for a partial loss, he acquires no title to the subject-matter insured, or such part of it as may remain, but he is thereupon subrogated to all rights and remedies of the assured in and in respect of the subject-matter insured as from the time of the casualty causing the loss, in so far as the assured has been indemnified, according to this Act, by such payment for the loss.

80.-(1) Where the assured is over-insured by double insurance, each insurer is bound, as between himself and the other insurers, to contribute rateably to the loss in proportion to the amount for which he is liable under his contract.

considera

84.-(1) Where the consideration for the Return for payment of the premium totally fails, and failure of there has been no fraud or illegality on the tion. part of the assured or his agents, the premium is thereupon returnable to the assured.

(2) Where the consideration for the payment
of the premium is apportionable and there
is a total failure of any apportionable part of
the consideration, a proportionate part of the
premium is, under the like conditions, there-
upon returnable to the assured.
(3) In particular-

(a) Where the policy is void, or is avoided
by the insurer as from the commence-
ment of the risk, the premium is return.
able, provided that there has been no
fraud or illegality on the part of the
assured; but if the risk is not appor-
tionable, and has once attached, the
premium is not returnable:

(b) Where the subject-matter insured, or
part thereof, has never been imperilled,
the premium, or, as the case may be,
a proportionate part thereof, is return-
able:

Provided that where the subject-
matter has been insured "lost or not
lost" and has arrived in safety at the
time when the contract is concluded,
the premium is not returnable unless,
at such time, the insurer knew of
the safe arrival;

A.D. 1906.

Modification of Act in case of

mutual insurance.

Ratification

(e) Where the assured has over-insured under an unvalued policy, a proportionate part of the premium is returnable;

(f) Subject to the foregoing provisions, where the assured has over-insured by double insurance, a proportionate part of the several premiums is returnable:

Provided that, if the policies are effected at different times, and any earlier policy has at any time borne the entire risk, or if a claim has been paid on the policy in respect of the full sum insured thereby, no premium is returnable in respect of that policy, and when the double insurance is effected knowingly by the assured no premium is returnable.

Mutual Insurance.

85.-(1) Where two or more persons mutually agree to insure each other against marine losses there is said to be a mutual insurance.

(2) The provisions of this Act relating to the premium do not apply to mutual insurance, but a guarantee, or such other arrangement as may be agreed upon, may be substituted for the premium.

(3) The provisions of this Act, in so far as they may be modified by the agreement of the parties, may in the case of mutual insurance be modified by the terms of the policies issued by the association, or by the rules and regula tions of the association.

(4) Subject to the exceptions mentioned in this section, the provisions of this Act apply to a mutual insurance.

Supplemental.

86. Where a contract of marine insurance

by assured. is in good faith effected by one person on behalf of another, the person on whose behalf it is effected may ratify the contract even after he is aware of a loss.

"Policy" means a marine policy.

91.-(1) Nothing in this Act, or in any repeal Savings. effected thereby, shall affect

c. 39.

(a) The provisions of the Stamp Act, 1891, 54 & 55 Vict. or any enactment for the time being in force relating to the revenue;

(b) The provisions of the Companies Act, 25 & 26 Vict. 1862, or any enactment amending or sub- c. 89. stituted for the same;

(c) The provisions of any statute not expressly repealed by this Act.

(2) The rules of the common law including the law merchant, save in so far as they are inconsistent with the express provisions of this Act, shall continue to apply to contracts of marine insurance.

92. The enactments mentioned in the Second Repeals. Schedule to this Act are hereby repealed to the extent specified in that schedule.

93. This Act shall come into operation on Commencethe first day of January one thousand nine ment. hundred and seven.

94. This Act may be cited as the Marine Short title. Insurance Act, 1906.