clared that acquired freight already earned on the voyage, was insurable, and did not go with the ship on abandonment, but that the future freight to be earned on the goods saved, would go to the insurer, if there was no stipulation to the contrary in the policy, save the wages of seamen and *335 bottomry *liens. The new codea declared that the freight of goods saved, though paid in advance, went, upon abandonment, to the insurer on the ship. The construction given to the code by the Royal Court at Rennes, in 1822, in the case of Blaize v. Company of General Assurance at Paris, was, that the future freight did not go to the insurer on the ship, but only the freight on the goods saved and already earned at the time of the loss.b (2.) Of the adjustment of partial losses. In an open policy the general rule is, that the actual or market value of the subject insured is to be estimated at the time of the commencement of the risk. The object of inquiry is, the true value of the subject put at risk, and for which an indemnity was stipulated; and the question of total or partial loss does not turn on the estimated value, in a valued policy, but upon a view of all the circumstances attending the loss.c (1) There are two kinds of indemnity that may lawfully be obtained under a contract of insurance. The first is, to pay what the goods would have sold for if they had reached the place of destination; and the value there consists of the prime cost and expenses of the outfit, the freight and expenses Code de Commerce, art. 386. b Boulay Paty, tome iv. 397-417. • Young v. Turing, 2 Manning & Granger, 593. 597. 601. The question whether a loss be total or partial is, whether, in the condition of the ship, the owner, as a man of prudence and discretion, would, under the circumstances, if uninsured, have sold the ship, or have endeavoured to get her off and repair her. Domett v. Young, 1 Carr. & M. 465. S. P. A partial loss is frequently termed a particular average, in distinction from a general average, and Mr. Benecke says, that it denotes, in general, every kind of expense or damage, short of a total loss, and which is to be borne by the proprietor of the particular concern; and he says it is expressive, and ought to be retained. Stevens & Benecke on Average, by Phillips, 341. (1) The Law Reporter for Feb., 1848, contains an elaborate discussion of the rules of adjustment in cases of partial loss on profits. at the port of delivery, and the profit or loss arising from the state of the market. This species of indemnity puts the insured in the same situation as if no loss had happened. The other kind of indemnity is to pay only the first cost of the goods, or the market value at the time and place of the commencement of the risk, and the expenses incurred; and this places the insured in the situation he was before he undertook the adventure. It annuls the speculation, and excludes the consideration of any eventual profit or loss. The first kind of insurance is, in the opinion of Mr. Benecke, more conformable to the nature of mercantile transactions, and affords, in every case, an exact indemnity; but the second kind of insurance *of goods is the one in practice in *336 England and other commercial countries.c The actual or market value at the port of departure may frequently be different from the invoice price, or prime cost, and when that happens, or can be ascertained, it is to be preferred.d In Gahn v. Broome,e the invoice price was adopted as the most stable and certain evidence of the actual value; but in Le Roy v. United Insurance Company,f the invoice price was understood to be equivalent to the prime cost, and that was commonly the market value of the subject at the commencement of the risk. The court, in that case, did not profess to lay down any general rule, but they, nevertheless, adopted the prime cost as being a plain and simple, and, generally speaking, the best rule by which to test the value. of the subject. The English Court of King's Bench, in See supra, 274. n. b. Marchesseau v. The Merchants' Ins. Co. 1 Robinson's Louis. R. 438. b Treatise on the Principles of Indemnity in Marine Insurance, c. 1. • The underwriters, in cases of partial loss, have nothing to do with remote or contingent losses. They have nothing to do with bottomry bends given to raise money for repairs, though they must bear their share of the extra expenses of raising the money, as part of the partial loss. They are not bound to supply funds in a foreign port for repairs. They are simply bound to pay the partial loss. Bradlie v. The Maryland Ins. Company, 12 Peters, 378. In Oriental Bank v. Tremont Ins. Co. 4 Metcalf R. 1, it was held, that interest is not payable on a policy of insurance, if there be no agreement to pay interest, or the insurer be not in default in payment. a Snell v. Delaware Ins. Company, 4 Dallas' Rep. 430. Carson v. Marine Ins. Company, 2 Wash. Cir. Rep. 468. • 1 Johns. Cas. 120. 17 Johns. Rep. 343. Usher v. Noble,a pursued, in effect, the same rule, by estimating a loss on goods in an open policy, at the invoice price at the loading port, and taking with that the premium of insurance and commission, as the basis of the calculation.b If goods arrive damaged at the place of destination, the way to ascertain the quantity of damage, either in open or valued policies, is to compare the market price, or gross amount of the damaged goods, with the market price or gross amount at which the same goods would have sold if sound. But this mode of adjustment affords no per*337 fect indemnity *to the insured, for he has to pay freight for the goods as if they were sound, and which freight he cannot recover of the insurer. Various expedients have been suggested to remedy the inconvenience, and the true one is to insure the sum to be paid for the freight and charges at the port of delivery.d We have seen, in a former lecture,e that an adjustment of a general average at a foreign port is conclusive; and it is equally so between the parties to the policy, and between the parties in interest in the adventure.f It is the rule in all the foreign countries for the underwriter to be bound by foreign adjustment of general average, unless there be a stipulation to the contrary in the policies, as is the case in those of the insurance companies at Paris. There is a material difference between the adjustment of a partial loss, and of a general average, since the former is adjusted according to the value at the time and place of departure of the vessel, and 12 East's Rep. 639. b This is admitted in the French law to afford all the indemnity that was stipulated by the policy. Boulay Paty, tome iv. 41, 42. The premium of insurance is considered as part of the value of the goods. • Lewis v. Rucker, 2 Burr. Rep. 1167. Johnson v. Shedden, 2 East's Rep. 581. Usher v. Noble, 12 ibid. 639. Benecke on Indemnity, 426. Benecke on Indemnity, 17-26. • Ante, lec. 47, p. [244.] Though the foreign adjustment be conclusive as between the parties to it, yet the party to whom the contribution has been made, is not restricted, in his claim under the policy, to the sum apportioned as his share of the loss, when it falls short of a complete indemnity. Thornton v. United States Ins. Company, 3 Fairfield, 154. Molloy, b. 2. c. 6. sec. 16. 7 Mass. Rep. 370. 5 Cowen's Rep. 63. Benecke on Indemnity, 331. the latter according to the value at the foreign port. And, as in cases of partial loss, it is to be adjusted upon a comparison of the gross proceeds of the sound and damaged goods, the underwriter has nothing to do either with the state of the market, or with the loss on landing expenses, freight and duty, accruing in consequence of the deterioration; for no premium is paid for those items, and all other modes of adjusting particular average, except that founded on the principle of the gross proceeds, are erroneous. In settling losses under the memorandum in the policy, which declares articles free of average, under say five per cent., if a partial loss to an article be found, on survey and sale, to have been five per cent., the insurer pays the damages and the expenses. If under five *per cent., he pays nothing, *338 and the insured bears the expenses. The expenses are like costs of suit, and fall upon the losing party. ses are not taken to make up the five per cent.c The expen ■ 1 Emerigon, 659. Ord. de la Mar. tit. Du Fret. art. 6. b Benecke on Indemnity, 426, 427. In the adjustment of loss on a policy on profits, it is not necessary to show what the profits would have been if the loss had not happened. It is sufficient to show interest in the cargo, and the loss thereof. The loss of the cargo carries with it the loss of the profits, either in whole or in part, as the case may be. If the cargo be totally lost, the loss on the policy on profits is total. If partial on the cargo, it is partial on the profits, and to the same extent. The salvage on what is saved of the cargo, is credited to the insurer on profits, as well as to the insurer on cargo. They stand on the same footing precisely. Henrickson v. Margetson, 2 East's Rep. 549, note. Barclay v. Cousins, 2 East's Rep. 544. Patapsco Ins. Company v. Coulter, 3 Peters' U. S. Rep. 222. In some of the New-York policies, this principle is specially recognised by the introduction of the clause in policies on profits, that the policy is subject to the same average and benefit of salvage as cargo. • Benecke on Indemnity, 436. Mr. Benecke, in c. 9, has gone into particular calculations on the subject of the adjustment of particular average, on every kind of expense or damage short of a total loss, and applied his principles to almost all the variety of cases that can arise; and to his lucid explanations I must refer the student for a more practical knowledge of the subject. The five per cent. is to be computed upon the valuation in the policy, after deducting the premium. Several or distinct losses happening to the ship at different times, are not to be added to make up the five per cent. Brooks v. Oriental Ins. Company, 7 Pick. 259. Distinct suc cessive losses to the ship cannot be added together to make up the five per cent., though it may be otherwise as to the cargo. In the one case, many trifling losses may fall within the common wear and tear of the ship borne by the owner; but in the other, the entire damage cannot be ascertained until the cargo is unladed. Ibid. See, also, Stevens on Average, 214. Benecke, 473. But in the case of Don27 VOL. III. If extraordinary expense and extra freight be incurred in carrying on the cargo in another vessel, when the first one becomes disabled by a peril of the sea, the French rule is, to charge the same upon the insurer of the cargo. This question is left undecided in the English law, but in this country we have followed the French rule.b With respect to leakage, the rule, in cases free from special stipulation, is, that the insurer is not liable for waste occasioned by ordinary leakage, and only for leakage beyond the ordinary waste, and produced by some extraordinary accident. The practice is, to ascertain, in each particular case, what amount of leakage is to be attributed to ordinary causes, or the fault of the insured, or bad stowage, and what to the perils of the sea; and, in pursuing this inquiry, the season of the year, the nature of the *339 articles, the description of the vessel, *the length of the voyage, and the stowage, are all to be considered.c An adjustment of a loss cannot be set aside or opened except on the ground of fraud, or mistake of facts not known. It is only prima facie evidence of the claim, and the party must have a full disclosure of the circumstances of the case before he will be concluded by it. In the language of Lord Ellenborough, they must all be blazoned to him as they really existed. And in making the adjustment, in the case of a partial loss, the rule is to apply the old materials towards the nell v. Columb. Ins. Company, 2 Sumner's Rep. 366, a different view was taken of the subject under the memorandum in the policy, and after a thorough examination of the English and the French law of insurance, it was held, that if there be suc. cessive losses on the ship or cargo, each less than five per cent., but amounting in the aggregate to more than five per cent., they were not within the exception, and were to be borne by the insurer. The exception of all losses not amounting to five per cent., means all losses during the voyage, and the exception applies to all losses, ejusdem generis, below five per cent., and not amounting in the aggregate to five per cent. Mr. Justice Story drew the conclusion that there was no distinction in the insurance law of Europe, between the aggregate averages of the whole voyage, and an average loss at a particular period. • Emerigon, tome i. 429-433. Code de Commerce, Nos. 391. 393. Mumford v. Commercial Ins. Company, 5 Johns. Rep. 262. Searle v. Scovell, 4 Johns. Ch. Rep. 218. Dodge v. Marine Ins. Company, 17 Mass. Rep. 471. • Phillips on Insurance, vol. i. 246, 247. Miller on Insurance, 132. 2 Valin, 14. 80. 83. Emerigon, vol. i. 391. d Dow v. Smith, 1 Caines' Rep. 32. Shepherd v. Chewter, 1 Campb. N. P. Rep. 274. Steel v. Lacy, 3 Taunt. Rep. 286. |