Cape is subject to a deduction of three per cent. for wet, if the actual increase cannot be ascertained" (g). XXX.-CLAIMS ON DIFFERENT ARTICLES A claim for particular average in respect of different articles or lots insured under the same policy must be stated in respect of each separately; unless either the percentage of deterioration is the same in every case, or the sound value stands throughout in the same proportion to the insured value. Upon either of the conditions specified, the result will be the same whether adjustment is made jointly or severally; but, if neither condition is present, the result of a separate adjustment of the claim on each article or lot will differ from that of a combined adjustment upon the whole (h). (g) Ibid. (h) Lowndes on Marine Insurance, p. 162; Stevens on Average, p. 145. A brief example of the working out of this principle is appended : Example I.-Same percentage of loss. Other conditions different : Result on a combined adjustment on £945 = £236 5s. Example II.-Same ratio between sound and insured values. ditions different : Other con Claim. 20% £30 0 Insured Value. Sound Value. Proceeds. Loss. Percentage. £20 C. 75% 225 0 0 25% 67 10 0 £945 £630 £340 £290 Result, on a combined adjustment, £435 0 0 PARTICULAR CHARGES. XXXI-DEFINITION OF THE TERM. Particular charges are expenses incurred by the assured or his agent in preserving or recovering the subject insured from loss by the operation of the perils insured against. They constitute a species of claim under the policy, which is to be distinguished from general average on the one hand, and from particular average on the other-from the former, inasmuch as they are incurred for the preservation of a particular interest, as of the ship, or of the cargo, instead of for the common safety -and from the latter, inasmuch as they consist of expenditure for the safeguard or recovery of the subject insured, instead of deterioration or partial loss. In a case to which reference has already been made (i), it was found by the jury that, in the business of marine insurance, a well-known and definite mean Example III.-Different percentages of loss, and different proportions between sound and insured values. Other conditions the same :— £290 3s. 11d. Result, on a combined adjustment on £400 (i) Kidstone v. Empire Marine Insurance Co., ante, s. 6. ing had been affixed to the term "particular average," as contra-distinguished from "particular charges," viz., that particular average denoted actual damage done to or loss of part of the subject-matter of the insurance, but that it did not include any expenses incurred in recovering or preserving the property, which latter were termed particular charges (j). The charges thus designated are recoverable from underwriters when it can be shown either that they attach to the interest insured as the direct result of a peril insured against, or that they fall within the terms of the "suing and labouring " clause. XXXII--THE SUING AND LABOURING CLAUSE. And in case of any Loss or Misfortune it shall be lawful to the Assured, their Factors, Servants, and Assigns, to sue, labour, and travel for, in, and about the Defence, Safeguard, and Recovery of the said Goods and Merchandises and Ship, etc., or any Part thereof, without Prejudice to this Insurance; to the charges whereof we, the Assurers, will contribute each one according to the Rate and Quantity of his sum herein insured. This clause constitutes an agreement supplementary to and distinct from the main contract to indemnify the assured against loss or damage to the subject insured (k); and it is consequently uncontrolled by the memorandum, which has exclusive reference to claims for average. Its object and general scope is to encourage the assured, in case of accident, to make exertion for the preservation of the property insured, by an agreement that any such action shall be without prejudice to the insurance, (j) L. R. 1 C. P. 538. (k) See the judgment of Brett, L.J., on this point, in Lohre v. Aitchison, 4 Asp. Mar. L. C. 14. conjoined with a promise on the part of the underwriters to contribute to any expenditure which may be incurred by the assured or his agents in efforts to avert an impending loss. Before entering upon the interpretation of the suing and labouring clause, it will be advisable to note some forms of expenditure which do not fall within its terms. It has been decided by the highest court of appeal that "general average and salvage do not come within either the words or the object of the suing and labouring clause" (1), on the ground that expenses incurred under either of those heads are recoverable, irrespective of the clause in question, upon an averment of loss by a maritime peril (m). The occasion upon which the suing and labouring clause comes into force is the happening of any loss or misfortune which is covered by the policy. The latter condition is essential; for if the property be subjected to a danger which is not comprehended by the policy, the underwriters have no interest in any efforts which may be made for the protection of the subject insured. For instance, supposing that a ship insured free of capture, were in danger of being taken by an enemy and the assured were to "sue, labour, and travel" in her safeguard or defence, such action would not fall within the terms of the clause, and any charges incurred in consequence thereof would not be recoverable. The loss, for the avoidance of which action by the assured or his agent is expressly sanctioned, must therefore be one which, if it happened, would fall upon the underwriters. Although the terms of the clause with reference to the action contemplated are simply permissive, there can be no doubt that it is the duty of the assured, in case of accident, to make every reasonable exertion to save the property; and should any loss be directly caused by a failure to perform that duty, it will not be recoverable under the policy. Thus, where, on the happening of an accident, the master of the ship, to whom every (7) Per Lord Blackburn, in delivering the judgment of the House of Lords in Aitchison v. Lohre, 4 Asp. Mar. L. C. 171. (m) Dent v. Smith, L. R. 4 Q. B. 414; Dixon v. Whitworth, Dixon v. Sea Insurance Co., 4 Asp. Mar. L. C. 327. thing was left, neglected to take reasonable steps to save the cargo, and in consequence of this neglect, what would otherwise have been a partial was converted into a total loss, it was held that there was no such total loss of the cargo as entitled the assured to recover under their policies (n). When the cargo is in peril, the primary duty of the master is to endeavour to save it, and then to convey it to the place of destination. If, owing to the loss of the original ship, the cargo cannot be carried on in her, the master is at liberty, though not bound, to hire another ship to transport the cargo to the port of destination, so as to earn the freight due on the performance of the contract of affreightment. The master of a general ship becomes agent for the sale of the cargo—that is, has an authority to effect a sale so as to bind the owners of the goods-only where there is a necessity for that course; and it lies on those who claim title to the cargo as purchasers from the master to prove that he, before selling, used all reasonable means to have the goods conveyed to their destination, and that he could not by any means available to him carry the goods, or procure them to be carried, to their destination as merchantable articles, or could not do so without an expenditure clearly exceeding their value after their arrival (0). Upon the same principle, with respect to the ship, the master may, under certain circumstances, effect a sale so as to render the underwriters liable for a total loss without notice of abandonment, but his right to do so is limited to the case of stringent necessity-that is to say, "a necessity that leaves the master no alternative as a prudent and skilful man, acting bond fide for the best interests of all concerned, and with the best and soundest judgment that can be formed under the circumstances, but to sell the ship as she lies" (p). The persons who are specially authorized, in the terms of this clause, to render services to the property, are "the assured, (n) Currie v. Bombay Native Insurance Co., L. R. 3 P. C. 72. (0) Atlantic Mutual Insurance Co. v. Huth, 4 Asp. Mar. L. C. 328, 369; Abbott on the Law of Merchant Ship ping, 9th ed., pp. 301, 302. (p) Arnould, 4th ed., p. 333, quoted with approval in Cobequid Marine Insurance Co. v. Barteaux, 2 Asp. Mar. L. C. 536. Q |