policy would not attach. On the assumption that the warranty of seaworthiness had been complied with, or was not implied, the underwriters would be liable for the loss sustained by the assured through the springing of the mast by sea perils, though the inherent defect may have contributed to that result. If, however, the weather were only ordinary, and the mast, which could have resisted the strain exerted upon it in the absence of the defect, were sprung in consequence of the defect, the underwriters would be free from liability. The extent of the loss sustained by the assured through the springing of the mast by sea perils has next to be ascertained. If the inherent defect were so great as to involve the condemnation of the mast, irrespective of the injury by sea perils, the assured, having sustained no loss by the latter, would have no claim under the policy. If, however, but for the injury by sea perils, the mast would still have been serviceable, the underwriters would be liable for the cost of repairing that injury. Should the injury involve the renewal of the mast, either on account of the spring alone, or because the latter, though it could have been repaired by fishing the mast, had the latter been sound, cannot be so repaired on account of the defect, the underwriters will be liable for the cost of the renewal, less the ordinary deduction for improvement. If, however, the spring occur in one part of the mast and the defect in another, so that the spring might have been repaired by fishing the mast; but, in consideration of that injury, coupled with the defect, it is decided to have a new mast, the liability of the underwriters will be confined to the estimated cost of fishing the old mast, less the usual deduction for improvement, that being the extent of the loss by sea perils (1).

A similar case occurs where, in the course of repairing injuries caused by sea perils to a ship's bulwarks and stancheons, or upper deck beams, it is necessary to remove several deck planks ; and, the latter, owing to the wood removed without spoiling them;

(7) See Baily's Perils of the Sea, pp. 103, 104, where the above questions are discussed, though the con

being old and frail, cannot be though, if there had been no

clusions are not quite in accord with those above stated.

such defect, they could have been replaced. In that contingency, if the deck planks, though defective, would still have been serviceable, had it not been for the disturbing effect of the sea perils, the underwriters are liable for the cost of replacing them, less the ordinary deduction for improvement; though, they would not be liable, if the planks were so defective as to necessitate their renewal, irrespective of the accident.

When injury to iron-work by the perils insured against is combined with the effects of corrosion, the liability of underwriters for the combination should be tested according to the same method as has been applied to the case of similar injuries to wood-work combined with the effects of decay.

In case of the fracture of a steamer's shaft, or the breaking down of her machinery, in consequence of inherent defect alone, there is no liability on the part of underwriters for the consequent damage; but, if the damage be aggravated owing to the action of sea perils upon the injured parts, the underwriters will be liable for the enhancement. For instance, should a propeller get loose upon the shaft, owing to a defect in the key, the cost of making good that defect would not be recoverable; but, should heavy weather ensue, and the violence of the sea acting upon the displaced propeller cause injury to it, or to the shaft, the damage so caused would be claimable as particular average. In the event of a shaft being fractured, or a steamengine breaking down, on account of sea perils combined with inherent defect, the extent of the loss arising from the former cause must be ascertained upon the same principles as have been stated in relation to other repairs.

PARTICULAR AVERAGE ON FREIGHT.

X.-MODE OF ADJUSTMENT.

A particular average on freight is a partial loss of that subject arising from a peril insured against. As the earning of freight is, according to English law, contingent upon the performance of the contract of affreightment, a partial loss of freight will in general result from the non-delivery of a part of the cargo at its destination owing to the operation of an excepted peril. It may, however, arise in a different way, as when the cargo is justifiably sold short of its destination on account of sea perils, and pro rata freight is recovered under foreign law.

When freight is insured under an open policy, and a partial loss occurs, the first step towards the adjustment of the loss is to compute the insurable value, according to the method explained in treating upon valuation (m). If the amount insured prove to be greater than that of the valuation, when computed, the excess, being an over-insurance, will have to be cancelled, and a return of premium made upon it.

XI.—SUBSTITUTED FREIGHT.

Where a part of the cargo is condemned in the course of the voyage, and fresh goods are shipped to occupy the space left vacant by the goods removed, the new freight thus earned goes to reduce the loss which would otherwise have been incurred. In that case, a question may arise as to whether the substituted freight is to be treated as though it were part of the original freight, or as a salvage to be credited to the underwriters in reduction of the loss. In reply to this question, it would appear that, if the policy were on freight generally, and the goods were condemned and replaced at the original port of shipment, the

(m) Ante, Ch. IV., s. 4.

substituted freight should be treated as incorporated with the original freight, so as to avert the loss which would otherwise have been incurred (n); but, if the substitution took place at an intermediate port, the new freight should be treated as a salvage to be credited to the underwriters in reduction of the loss previously incurred (o). The reason for this distinction is, that in the case first supposed, all the freight being earned upon the same voyage is of the same kind as that described in the policy; but, that in the latter case, there can be no identity between the freight on the substituted goods and the original freight, as the former was earned upon a different voyage.

XII.-EFFECT OF PREPAYMENT OF FREIGHT.

In case of a partial loss on freight, part of which freight has been advanced at the port of shipment, and the remainder made payable on delivery of the cargo at the port of destination, the question as to whether the loss will fall upon the shipowner or the charterer is contingent upon the wording of the charterparty. If the terms of that instrument show that the advance was made in part payment of whatever freight might ultimately be earned, the charterer has the right to receive credit for the whole amount of such advance as against the freight on the portion of the cargo delivered at destination, so that no loss can fall upon the charterer's portion, unless the entire freight earned falls short of the amount advanced. This point was decided in an action by the shipowner to recover for a total loss upon a policy of insurance effected to cover the portion of the freight at his risk (p). The freight which formed the subject of the insurance was intended to be earned for the carriage of a cargo of coals from Greenock to Bombay, under a charter-party, by which the freight was to be paid on the unloading and right

(n) Everth v. Smith, 2 M. & S. 278. (0) Barclay v. Stirling, 5 M. & S. 6. (p) Allison v. Bristol Marine Insurance Co., L. R. 1 App. Cas. 209.

One of the policies was for £500" on freight valued at £2000," and the other for £700,"on freight, payable abroad, valued at £2000.'

delivery of the cargo at and after the rate of 42s. per ton of 20 cwt. on the quantity delivered. It was provided that "such freight is to be paid, say one half, in cash on signing bills of lading, less four months' interest at bank rate, but not less than five per cent. per annum, five per cent. for insurance, and twoand-a-half per cent. on gross amount of freight in lieu of consignment at Bombay, and the remainder on right delivery of the cargo." Half of the estimated amount of the freight was paid in advance. The ship was lost before entering Bombay harbour; but, one half of the cargo was saved and delivered. It was held that the charterer was entitled to take credit for the half freight advanced as against the half freight earned, so that there was no loss upon the charterer's portion, but a total loss upon the shipowner's portion of the freight, which was recoverable under the policies. Had the advance been a pre-payment of one half of the freight on each ton shipped, instead of a payment on account of whatever freight became ultimately due under the charter-party, the loss would have been distributed, so that there would have been a loss to each party of one-half the freight at his risk.

XIII-FORWARDING CHARGES.

In the event of a vessel being condemned at an intermediate port, and of the cargo being forwarded to its destination by another vessel, so that the original freight is earned, the freight paid to the owners of the substituted ship is not a particular average upon the policy, but a particular charge, which is recoverable from the underwriters on the freight in terms of the suing and labouring clause. In the trial of the action upon which this point was decided, it was found by the jury that there was a well-known and definite meaning affixed by long usage to the term "particular average," as contra-distinguished from "particular charges," viz., that the former term denoted actual damage done to, or loss of part of, the subject-matter of insurance, but that it did not include any expenses or charges