ment based upon those rules, when the adjustment is so made as between the owners of ship and cargo respectively, in accordance with the conditions of the charter-party or bill of lading. In the absence of such stipulation in the contract of affreightment, this part of the clause will not apply. It is further to be observed that, as the York-Antwerp Rules do not by any means form a complete code of general average, but are limited to certain parts of the subject, the adjustment of the general average outside of those limits will have to be made according to the law or usage which is otherwise applicable. In other words, the adjustment has to be made according to the method which is authorised by law in the particular case, excepting as that may be modified by the requirements of the York-Antwerp Rules. CHAPTER VIII. PARTICULAR AVERAGE AND CHARGES. I.—PARTICULAR AVERAGE DEFINED. The term particular average, in relation to marine insurance, is, as already stated (a), equivalent to partial loss, and consists in, either a deterioration, or a total loss of part, of the subject insured, by the operation of the perils insured against (b). PARTICULAR AVERAGE ON THE SHIP. II.—MEASURE OF THE DETERIORATION. A particular average on the ship is co-extensive with the depreciation in value arising from the damage sustained, the amount of which is usually measured by the costs of the repairs. “As a general rule," said Cotton, L.J., in Pitman v. The Universal Marine Insurance Co. (c), "where there is a partial loss in consequence of injury to a vessel by reason of perils insured against, the assured is entitled to recover the sum properly expended in executing the necessary repairs, less, in each case, where the vessel was not at the time of the injury a new one, the usual allowance of one-third new for old." With respect to the last-mentioned deduction, it is made to represent the increase in the value of the vessel which is effected by the substitution of new for old materials-an increase which (a) Ante, Ch. VI., s. 2. (b) Wilson v. Smith, 3 Burr. 1551 ; Stevens on Average, 2nd edit., p. 73. (c) L. R. 9 Q. B. 192. varies in each case, but which, for convenience, and to avoid dispute, has been fixed by custom at the uniform rate of one-third. III.—DEDUCTIONS NEW FOR OLD. According to the established usage, the deduction of onethird "new for old" applies to iron as well as to wooden ships, and is made from labour equally with material. In relation to iron ships, the rule is clearly inequitable, and is practically superseded by the insertion in the policy of special clauses to modify or abolish the deduction. It is indeed doubtful whether the usage would be pronounced binding in law where it is so manifestly unreasonable as it is in insisting upon the deduction of one-third from the cost of iron-work repairs when it can be proved that no such improvement is effected; for the Courts, while approving the custom as regards wooden ships (d), have refrained from pronouncing as to its applicability to iron ships (e). The exceptions allowed by custom have already been specified in treating upon the allowance made for repairs in general average, but may here be recapitulated. The deduction does not apply in the case of a new ship on her first voyage; nor is it made from the cost of temporary repairs, the expense of straightening bent iron-work (inclusive of the labour of taking out and replacing the material), graving dock expenses and removals, the use of shears, stages and graving dock appliances, or the cost of replacing anchors, metal sheathing, and provisions. In all the cases specified, the repairs are allowed in full, with the exception of metal sheathing, which is treated in a way peculiar to itself. When the re-metalling of a ship is recoverable under the policy, allowance in full is made in particular average for the cost of a weight of new metal equal to the gross weight of sheathing stripped off, credit being given for the proceeds of (d) Aitchison v. Lohre, 4 Asp. Mar. L. C. 168. (e) See the remarks of Willes, J., in Lidgett v. Secretan, L. T. Rep. v. 24, p. 942. the old metal sheets. The remainder of the weight of new metal sheathing put on is placed to the debit of the shipowners, as it is the result of natural wastage, corresponding with the fixed deduction on account of wear and tear made from other repairs. In addition to the above, should any sheets have been rubbed off or otherwise altogether lost by sea perils, the cost of the gross weight of sheathing used to replace them is allowed, subject to the deduction of one-third. The expense of stripping off the old and putting on the new metal, with the cost of the felt and metal nails used in connection with the re-metalling, is also allowed, less thirds, credit being given for the proceeds of the old nails. Chain cables are subject to the deduction of onesixth only. Expenses which are necessary to enable an injury to be repaired, but do not form part of the cost of executing the repairs, such as the expense of transporting a vessel, after the discharge of her cargo, from a place of safety, where no facilities for repairing her exist, to a part where she can be repaired, are allowed in particular average without deduction. The deductions for improvement are not applicable to the cost of the protest, surveyors' fees, or other charges incurred to prove the claim under the policy, as these expenses do not form part of the cost of the repairs. With the exceptions above specified, the deductions for improvement are applied to the entire cost of the repairs, inclusive of agents' commissions upon the disbursements, and extra expenses incurred to raise funds, such as bottomry premium, or loss by the forced sale of cargo at a port of refuge (ƒ). (f) The practice of making a deduction of one-third from the enhancement of the cost of repairs at a port of refuge, caused by the addition of bottomry premium or loss on cargo sold to raise funds, is not supported by the principle upon which it is based. That principle is the fundamental one of indemnity, which requires that, in case of repairs, to arrive at the amount of the underwriters' liability, a deduction should be made from the cost of the epairs in respect of any increase in the value of the ship arising from the substitution of new materials for old ones, as otherwise the underwriters would be paying for loss by wear and tear, and the shipowner would be a gainer through the casualty. It is obvious, however, that the deduction made on this account should be confined to that expenditure which increases the value of the ship. Now, where it is necessary that money should be raised on bottomry, or by the forced sale of cargo to provide the means of repair, it cannot be shown that the value of the ship is to any extent IV-THE FIRST VOYAGE. In the previous section, it was remarked that no deduction "new for old" is made from the repair of injuries sustained by enhanced by the extra expenditure. Take the case of two vessels undergoing repairs in the same port, all things being supposed equal, excepting that in one case funds are procurable upon the owners' credit, and that in the other case they have to be raised on bottomry, the increase in value resulting from the repair would be alike to each vessel, though the expenditure in one case would be greater than in the other, to the extent of the bottomry premium. Hence it is evident that extra charges incurred to aise funds cause no enhancement in the worth of the ship, and that, in principle, they should not be subjected to deduction. Such charges are not part of the cost of executing the repairs, though they are necessary to enable the ship to be repaired, and may thus be said, in a general sense, to form part of the cost of the repairs. They are incurred to remove an impediment to the effecting of the repair, viz., the want of funds to pay for them, and may be considered analogous to the expenses incurred in removing a vessel in ballast from a port where she cannot be repaired to another port where facilities exist for that purpose. There is another and a larger question lying beyond the one just noticed, to which the answer to be given is not so obvious. When the expenditure upon the repairs at the port of refuge is in excess of that which would be incurred at the port of ownership, owing to the increased costliness of materials and labour at the former, ought the deduction for improvement to be made from the excess? The answer to this question depends upon the place where the improvement is to be estimated; for it may be assumed that the increase in a ship's value at any place resulting from repairs is relative to the cost of the repairs thereat. If the improvement is to be computed according to prices and values at the port of ownership, onethird of the cost of the repairs, as estimated at that port, should be deducted; but if the improvement is to be computed according to prices and values at the port of refuge, one-third of the actual cost should be deducted. There are serious difficulties, both theoretical and practical, attaching to the first of these alternatives. For instance, if the cost of repairs at the home port is to be the standard for computing deduction for improvement, consistency would require the adoption of the same course, whether the repairs were effected at a port of refuge or at a foreign port of destination, and also whether the cost as estimated at the home port were less or more than the actual cost of the repairs. It would, however, be incorrect to deduct only one-third of the estimated repairs at the home port, if the vessel were actually repaired at an increased expenditure at a foreign port of destination; because, to do so would be to ignore the modification which is effected in a ship's value by sending her from one place to another. When a ship undergoes repairs in a foreign port to which she has been sent, as the liability of the underwriters is determined by the prices current at the place of repair, it appears most consistent that the deduction for improvement should be regulated by the same standard. If this be so, when the ship is repaired at a port of destination, it should apply equally when the repairs are effected at a port of refuge. In support of that view, it is to be observed that the liability of the underwriters for the cost of repairs attaches at the time when the repairs are effected; and that, if the vessel be subsequently lost before arrival at her port of destination, so that the owner derives no actual benefit from the expenditure, the amount of |