If, however, the reverse were the case; or, to take the other instance adduced, if the scarphing of the beams, though adequate to restore the injured part to its original strength, were so unsightly as to depreciate the value of the vessel for sale, the owner would be insufficiently compensated by a settlement confined to the actual outlay. Accordingly, in that contingency, the assured would be entitled, in computing the claim under the policy, to add to the actual cost of the repairs the estimated diminution in the value of the vessel after repairs as compared with her value before the accident; provided that the combined amount were not in excess of the estimated cost of effecting complete repairs, less the usual deductions for improvement.

Another complication arises where repairs on account of shipowners and underwriters respectively are executed jointly at a less expense than would have been incurred if each repair had been executed independently of the other. Thus, for example, let it be supposed that a steamer breaks her propeller, in consequence of which she has to be placed in graving dock for its renewal. While there, the shipowners take the opportunity to scrape and paint the vessel's bottom on their own account, which work is performed without prolonging the use of the dock or in any way interfering with the repairs which are being simultaneously effected to the propeller. In such a case, should the underwriters bear the entire dock dues, on the ground that it was necessary to incur them to repair the damage by sea perils; or, should the owners participate in the expense on the ground that they have participated in the benefit?

Let us consider the question in its reverse application, with the aid of another illustration. On the arrival of a steamer at her port of destination, after the completion of a voyage, it is found requisite that she should be placed in graving dock for the ordinary scraping and painting of her bottom, and she is accordingly docked for that purpose alone. Stormy weather has been encountered on the voyage, in which the vessel sprang a leak, but no material damage is apprehended. When, however, the vessel's bottom is sighted, it is discovered that her

stern-post has been fractured by sea-perils. The repairs on account of owners and underwriters, respectively, are then simultaneously proceeded with and occupy eight days in all. Had the vessel only required scraping and painting, as originally contemplated, the work might have been done in three days. Had she only required the repairs to her stern-post, the full eight days would still have been occupied. Three days' dock hire have thus been saved by the joint execution of the repairs. Are the shipowners, or the underwriters, to have the benefit of this saving; or, should both parties participate, and if so, in what proportions?

It is evident that the two cases above instanced should be determined upon the same general principle. Either, the original intention with which the ship was placed in the drydock should qualify the expense incurred in pursuance of that intention; or else, intention being discarded and fact alone regarded, owners and underwriters should be considered as partners in a joint undertaking. In the discussion of this question, we are fortunately not left to speculation, for the second of the cases instanced is not an imaginary but an actual one, which has recently been submitted to the Courts for adjudication (i). It is unnecessary to detail the various contentions on each side, further than to state that the effect of the underwriters' contention, if sustained, would have been to reduce the particular average below the percentage necessary to constitute a claim. The Divisional Court decided in favour of the defendants (the underwriters); but, on appeal, that decision was reversed, the Court of Appeal holding, by a majority, that the hire of the dock for the first three days, being common to the two operations, should be equally divided between the shipowners and the underwriters, and that the remaining five days' hire, being applicable to the repair to the stern-post alone, should be charged in full to the underwriters. A different mode of division was suggested by Baggallay, L.J., who dissented from

(i) The China Transpacific Steam Co. v. The Marine Insurance Co., Shipping

Gazette Weekly Summary, 10th July,

1885.

the majority of the Court of Appeal. He was of opinion that the actual expense incurred in the hire of the dock for the full time it was used should be apportioned over the sums for which the parties would respectively have been liable if each repair had been executed independently of the other, so as to give the shipowners and the underwriters a share of the saving proportionate to the stake which each had in the common enterprise.

So far then as the law has been declared upon the point it appears that when two distinct repairs, one on account of the assured and the other on account of underwriters, each of which is necessary at the time, are simultaneously effected to a ship in graving dock, the hire of the dock, in so far as it is common to the two operations, must be divided equally between the parties interested. This rule is to be applied irrespective of the question whether the ship was placed in dock with the intention of effecting either or both of the repairs. There is, however, no authority for the extension of the rule to cases other than those in which each repair is a necessary one; and, it appears very doubtful whether the principle upon which the rule is based would admit of such an extension. If two distinct repairs are simultaneously effected in graving dock, one from necessity and the other for convenience, the obligation to incur and the liability to pay for the hire of the dock devolves upon the party who is responsible for the necessary repair. It may be that the other party will thus derive an incidental benefit, which may be regarded as an equitable reason why he should participate in the expense; but the law does not usually take account of either indirect loss or gain in such matters. Were it to do so, many considerations would have to be weighed on both sides. For instance, in the case of the shipowner, the incidental advantage which he may obtain through the execution of some repair on his own account, which it is not strictly necessary but only convenient to effect while the ship is necessarily detained in graving dock on underwriters' account, may not unfairly be set off against the incidental disadvantage which he incurs through having his vessel laid up unemployed while the repairs are in progress.

In order to make up the amount required to constitute a claim for particular average on ship, the entire net cost of effecting the necessary repairs may be brought in, less deduction for improvement, where made, and also, less the proceeds of any old materials remaining after the repairs. In the event of overtime being worked to expedite the repairs, it appears reasonable that the underwriter should be charged with the increased expenditure resulting from its employment, so far as it is usual in the trade to adopt such means for securing despatch, but not so, if the expenditure is unusual or excessive; for the general policy of the law of insurance sanctions and requires only that method of procedure which a prudent uninsured owner might be expected to adopt.

Any extra expense which the shipowner may be put to in providing money to pay for the repairs, such as commissions on advances or bottomry premium, where justifiably incurred, is allowed as part of the cost of the repairs. In practice, “neither interest nor commission (excepting bank commission) nor any other charge by way of agency or remuneration for trouble, is allowed to the shipowner in general average or particular average on ship, or as a special charge, in respect of payments made or services rendered at the port at which the managing owner for the time being resides" (k). The reason for this rule is that it is considered obligatory upon the shipowner to provide money for the ship's disbursements at her home port, though the same obligation does not rest upon him when extraordinary disbursements are incurred abroad which the funds at command are insufficient to defray. Accordingly, if the shipowner, to avoid bottomry or other extraordinary method of raising money, send out money or a letter of credit, he exceeds his recognised obligation, and is entitled to interest or a commission (1).

The charges of surveyors, overlookers, or other agents em

(k) Per Rule of the Association of Average Adjusters.

(1) As regards general average, the shipowner is not entitled to any commission or payment by way of remune

ration for services, if the claim arise out of proceedings taken for his own benefit, or in performance of his contract with the shippers of the cargo. Schuster v Fletcher, L. R. 3 Q. B. D. 418.

ployed to superintend the repairs and keep down expenses are not, in practice, admitted to constitute a claim, as they partake of the character of charges incurred under the sue and labour clause. Accordingly, such expenses are only allowed when there is a claim on underwriters irrespective of them, and then only if reasonable in amount. No charge is admitted into the statement for the services, at the port of ownership, of an overlooker who is in the regular employ of the owner; for the shipowner is bound to render any services required by himself or his servants at that port.

XII-AVERAGE WARRANTY ON GOODS.

Warranted free from particular average, unless the vessel or craft be stranded, sunk, or burnt, each craft or lighter being deemed a separate insurance.

Underwriters, notwithstanding this warranty, to pay for any damage or loss caused by collision with any other ship or craft, and any special charges for warehouse rent, reshipping, or forwarding, for which they would otherwise be liable. Also to pay the insured value of any package or packages which may be totally lost in transhipment.

Grounding in the Suez Canal not to be deemed a strand, but underwriters to pay any damage or loss which may be proved to have directly resulted therefrom (m).

This warranty comprises three clauses, each of which requires separate consideration, though all relate to the same subject. The first clause is a modification of the common Memorandum; and the reader will find in the comments upon that clause a sufficient explanation of its general scope and intention. A warranty of this tenor is generally inserted in policies on goods, when not effected on "all risks" terms. The effect

(m) The above is Lloyd's F. P. A. clause, which has been adopted by the Liverpool and Glasgow Underwriters'

Associations. Other forms are in occasional use.