wall so as to shield his neighbour's house from undue wet or Sect. 1039. danger from violent tempests, he ought to be entitled to contribution because his neighbour has got an advantage from what he did "(z). decisions. 1040. The effect of The Ruabon case is clearly to impair Result of very materially not indeed the authority, but the applicability, of the decision in The Vancouver. It is conceived that, in future practice, no apportionment of expenses should be allowed, except in cases very closely corresponding in their facts to those of The Vancouver. It is doubtful whether, consistently with The Ruabon case, any apportionment can take place, except in cases arising under the memorandum. It is probably correct to say that there can be no apportionment, except in cases where there has been in fact an absolute necessity for the immediate performance of the operation not originally contemplated. Both these conditions were present in The Vancouver case. Upon the first condition particular stress was laid by Lords Halsbury, Macnaghten and Morris in the case of The Ruabon. Upon the second condition equal stress was laid by Lords Brampton and Davey. on freight, 1041. The rule for adjusting a partial loss on freight is very Adjustment simple-viz., that where the sum insured is less than the of partial loss value of the interest at risk, the underwriter pays the same proportional part of the loss, that the sum insured is of the value of the freight; if the sum insured equals the value of the interest, then he pays the whole of the loss (a). profits, &c. justment as to freight. Rule of ad cargo is contracted for shipped, or Freight is generally insured in valued policies, and when Rule where only part of this is so the valuation in the policy is the sole basis on which full intended to calculate the amount of indemnity the underwriter has to pay. Where, however, only part of the full cargo to which the valuation was intended to apply is on board, or contracted for at the time of loss, the underwriter can only be called on (z) Per Lord Halsbury, [1900] App. Cas. at p. 12. at time of loss. Sect. 1041. to pay upon such proportion of the amount insured as the part of the cargo on board, or contracted for at the time of loss, bears to the full intended cargo (b). Similarly, where part of the freight has been paid in advance, the underwriter only pays such proportion of the amount insured as the freight at risk bears to the whole freight (c). Rule of aljustment in open policies. Where only part of full intended cargo on board. Freight where In open policies on freight the loss by the general usage of Lloyd's is adjusted upon the gross, and not upon the net freight; and this usage, though considered inconsistent with sound principle, has been sanctioned and acted upon by the Court of Common Pleas (d): if, in an open policy on freight, only part of the cargo be on board or contracted for at the time of loss, and this part be totally lost, the underwriters can only be called upon to pay the actual amount of freight on the goods actually lost, together with premiums and costs of insurance (e); in fact, in such cases the underwriters, whether in a valued or open policy, shall adjust as for a total loss of part of the freight: paying the same proportion of the sums for which they have subscribed the policy as the freight of the goods lost bears to the full freight, which would have been earned, had the whole intended cargo been loaded and all arrived. Where the original ship is disabled, and goods are sent on at a lower rate of freight, it has been held in the United States that the loss so occasioned should be adjusted as a salvage loss, i.e., the underwriter pays the whole amount of the insurance, and puts into his pocket the excess of the freight due under the charter-party over the expense of forwarding the goods (ƒ). Under similar circumstances in this country, the shipowner, (b) Forbes v. Aspinall (1811), 13 East, 323; Tobin v. Harford (1863), 13 C. B. (N. S.) 791; 32 L. J. C. P. 134; 34 L. J. C. P. 37; Denoon v. Home & Colonial Ass. Co. (1872), L. R. 7 C. P. 341. See ante, ss. 345, 346. (c) The Main, [1894] P. 320. (d) Palmer v. Blackburne (1822), 1 Bing. 62. (e) Forbes v. Cowie (1808), 1 Camp. 520. Per Lord Ellenborough in 13 East, 326. (f) 2 Phillips, Ins. s. 1441, citing Coffin v. Storer (1809), 5 Mass. R. 252; Searle v. Scovell (1819), 4 Johns. Ch. C. 218. having paid the expense of forwarding the goods, recovered Sect. 1041. the amount from the insurers on freight by an action on the sue and labour clause of the policy (g). on profits where part of goods lost. Where, in the United States, it is agreed to adjust an Adjustment average loss on profits at the same rate as on the goods out of which they are to arise, and the goods arrive sea-damaged, or part of them is totally lost, this is adjusted as an average loss on profits pro tanto (h); and the rule there is the same, where part of the goods, owing to the decay produced by seadamage, are necessarily sold, or thrown overboard in the course of the voyage (i). averages. 1042. In discussing the subject of general average, it has Petty appeared that all extraordinary charges, occasioned by unforeseen and unusual accidents, and incurred for the general safety, were the subjects of general contribution: there are, however, many charges similar in kind, though different in occasion and object, which occur regularly in the usual course of the voyage, and which the master, in the ordinary course of his duty, necessarily furnishes for the purposes of the ship and cargo. These charges are called petty averages, and are never the subject of any claim on the underwriter. They are all the ordinary charges at the places of loading and unloading, and during the voyage; such as common pilotage, tonnage, light money, beaconage, anchorage, ordinary quarantine, river charges, signals, instructions, passagemoney by fortified places, expenses for digging a ship out of the ice when frozen up in the regular course of the voyage, &c. (k). Of course, if any of these charges be incurred for any extraordinary purpose, or to relieve the ship and cargo from impending danger, they will, as we have seen, be general average. (g) Kidston v. Empire Marine Ins. Co. (1866), L. R. 1 C. P. 535; 2 C. P. 357. (h) 2 Phillips, Ins. s. 1474, where it appears that the rule is the same, even apart from express agreement. (k) Abbott, Shipping (5th ed.), Distinction between absolute and con Shipwreck or Irreparability followed by Sale......1053-1064 1043. A TOTAL loss in insurance law is one on account of which the assured is entitled to recover from the underwriter structive total the whole amount of his subscription. loss. Total losses are either absolute or constructive. An absolute total loss is one which entitles the assured to claim from the underwriter the whole amount of his subscription without giving notice of abandonment. A constructive total loss is one which entitles him to make such claim on condition of giving such notice. An absolute total loss takes place when the subject insured wholly perishes, or its recovery is rendered irretrievably hopeless (a). A constructive total loss takes place when the subject (a) La perte réelle est l'anéantissement ou la privation effective des choses assurées. Boulay-Paty on Emerigon, vol. ii. p. 217. So, by the Marine Insurance Bill, "Where the subject-matter insured is destroyed, or irreparably damaged, or where the assured is irretrievably deprived thereof, there is an actual total loss:" sect. 58 (1). insured is not wholly destroyed, but its destruction is rendered Sect. 1043. highly probable, and its recovery, though not utterly hopeless, yet exceedingly doubtful (b). 1044. The distinction between cases of absolute and con- Doctrine structive total loss has nowhere been better pointed out than Abinger. stated by Lord in the following passages, from the judgment of Lord Cases of absoAbinger, in the leading case of Roux v. Salvador : "The underwriter," says his Lordship, "engages that the subject of insurance shall arrive in safety at its destined termination. If, in the progress of the voyage, it becomes totally destroyed or annihilated, or if it be placed, by reason of the perils against which he insures, in such a position that it is wholly out of the power of the assured or of the underwriter to procure its arrival, he is bound by the very letter of his contract to pay the sum insured." lute total loss. structive total "But there are intermediate cases; there may be a capture Cases of conwhich, though primâ facie a total loss, may be followed by a loss. re-capture, which would revest the property in the assured. There may be a forcible detention, which may speedily terminate, or may last so long as to end in the impossibility of bringing the ship or the goods to their destination. There may be some other peril which renders the ship innavigable, Sect. 61.-(1) In the case of damage to a ship, there is a constructive total loss where she is so damaged, by a peril insured against, that the cost of repairing the damage would exceed the value of the ship when repaired. In estimating the cost of repairs, the expense of future salvage operations, and any future general average contribution to which the ship would be liable must be taken into account. (2) Where the assured is deprived of the possession of his ship by a peril insured against, and it is doubt ful whether he can recover her, or (3) In any case, other than that secuted to its termination. For the purpose of determining what is reasonable, regard shall be had to the course which would be pursued by a prudent uninsured owner under the circumstances of the case. |