Page:EB1911 - Volume 14.djvu/710

MARINE INSURANCE] on whom it falls is entitled to a rateable contribution from the others. These rateable contributions are repayable by the respective underwriters subject to the special provisions of their policies, unless the sacrifice or expenditure was made to avert a peril not covered by the policies, when there is no liability. The party originally incurring a general average sacrifice may recover from his underwriter the whole loss without having enforced his right of contribution from the others concerned in the venture. When ship, freight and cargo, or any two of them, belong to one person, the underwriter’s liability is determined as if these interests were each owned by separate

persons. “Salvage charges” are the charges recoverable under maritime law by a salvor independently of contract: if incurred in averting perils insured against, and if not otherwise provided in the policy, they are recovered as a loss from these perils. The cost of similar services of the insured or his agents or hired employees are recovered as a general average loss when the cost fulfils the character of general average expenditure, or in all other cases as “particular charges.” Thus all expenses by or on behalf of the insured to save or preserve the interest insured are either general average, salvage charges or particular charges. Particular charges are not included in “particular average,” which may now be defined as a partial loss of the subject insured, caused by a peril insured against, and not being a general average loss.

The nature of the liability for loss of the underwriter having been determined, it remains to fix its extent, or in other words the “measure of indemnity”; each underwriter bears that proportion of the loss which his subscription bears in the case of a valued policy to the insured value, and in the case

of an unvalued policy to the insurable value. In the case of a total loss, the measure of indemnity is the sum fixed by the policy if valued, or the insurable value of the object insured if the policy be unvalued. When the insured fails in an action for total loss, he is not precluded from recovering a partial loss if the policy insures him against partial loss. In the case of damage to a ship not amounting to a total loss the insured is, subject to the terms of his policy, entitled to recover the reasonable cost of repairs less customary deductions, but not exceeding for any one casualty the sum insured. If the repairs are only partial he is in addition entitled to an allowance for unrepaired damage, but the aggregate must not exceed the cost of complete repairs, less customary deductions. If the damaged ship has neither been repaired nor sold during the risk, the insured is entitled to reasonable depreciation but not exceeding the reasonable cost of repairs, less customary deductions. As regards freight, the underwriter’s liability for partial loss is, subject to the terms of the policy, the proportion of the policy value, or (in case of an unvalued policy) of the insurable value, which the freight lost bears to the whole freight at risk of the insured under the policy. When there is liability under a policy for total loss of part of the goods insured its amount is determined as follows: on an unvalued policy, it is the insurable value of the portion lost, ascertained as in case of total loss; on a valued policy, it is the proportion of the sum insured which the insurable value of the portion lost bears to that of the whole. Subject to any express provision of the policy, when goods are delivered at destination damaged throughout or in part, the liability is for the same proportion of the sum insured (or, in an unvalued policy, of the insurable value) that the difference between gross sound and gross damaged values at destination bears to the gross sound value there. Gross sound value means the wholesale price including freight, landing charges and duty; gross damaged value means the actual price obtained at a sale when all charges on sale are paid by the sellers. In case of goods customarily sold in bond, the bonded price is taken to be the gross value. When different kinds of property are insured under a single valuation, that valuation is apportioned over them in proportion to the respective insurable values they would have on an unvalued policy, but when the prime cost cannot be ascertained the division is made over the net arrived sound values of the different kinds of property. The liability for general average contribution and salvage charges is, for anything insured for its full contributing value, the full amount of the contribution; but in case of insurance not attaining the full contributing value there is a reduction in proportion to the under insurance; and where a particular average is payable on the contributing goods, its amount must be deducted from the insured value when the underwriter’s liability is being ascertained. On policies covering liabilities to third parties, the measure of indemnity, subject to the condition of the policy, is the amount paid or payable to the third party. When property is insured “free of particular average” (f.p.a.), then unless the policy is apportionable, as above, there is no liability for loss of part with exception of loss of part occasioned by a general average sacrifice, but there is liability for total loss of an apportionable part. The underwriter on f.p.a.

terms is liable for salvage charges, particular charges and charges incurred under the “sue and labour” clause of the policy to avert a loss insured against. Unless otherwise provided in the policy when goods are insured f.p.a. under a certain named percentage, a general average loss cannot be added to a particular average loss to make up the specified percentage; nor may particular charges nor the expenses of ascertaining and proving the loss; in fact only the actual loss suffered by the object insured may be taken into account. The engagement evidenced by

the “sue and labour” clause of a policy is regarded as supplementary to the contract of insurance, and the expenses incurred under it are recoverable from the underwriter, even if he has paid a total loss or has insured the goods f.p.a. with or without any franchise being specified. General average losses and contributions are not “sue and labour” expenses, nor are salvage charges, as defined above. The expenses of averting a loss not covered by the policy cannot be recovered under the “sue and labour” clause. The Marine Insurance Act specially declares that “It is the duty of the insured and his agents, in all cases, to take such measures as may be reasonable for the purpose of averting or minimizing a loss.”

Unless otherwise provided, and subject to the provisions of the law, the underwriter is liable for successive losses, even though their aggregate amount exceeds the sum insured. But where, under one policy, an unrepaired or uncompensated partial loss is followed by a total loss, the insured can only recover the total loss. These provisions do not affect the underwriter’s liability under the “sue and labour” clause, for, as explained above, the “sue and labour” clause is a contract supplementary to the insurance contract contained in the policy.

The payment of a total loss of the whole or of an apportionable portion of the object insured entitles the underwriter to take over the insured’s interest in all that remains of the same, the underwriter becoming subrogated to all the rights and remedies of the insured in and regarding

the interest insured as from the time of the accident occasioning the loss. The payment of a partial loss gives the underwriter a similar subrogation but only in so far as the insured has been indemnified in accordance with law by such payment for the loss.

In case of double (or multiple) insurance each underwriter is bound to contribute, as between himself and the other underwriters, rateably to loss in proportion to the amount for which his policy makes him liable; for any excess of this amount he may maintain action against the coinsurers and may obtain the same remedy as a surety who has paid more than his proportion of a debt.

Where the object is insured for less than the insurable value, as defined above, the insured is deemed to be his own underwriter for the balance.

Recent extensions of marine insurance in England have mostly been in the direction of giving to shipowners protection against liabilities to third parties. The first addition was the running down clause (r.d.c.) by which underwriters take burden of a proportion, usually three-quarters, of the

damage inflicted on other vessels by collision for which the insured vessel is held to blame. The rapid increase in the use and size of steamships was accompanied by an equally rapid increase in the frequency of collisions at sea, tending to make the shipowner desirous of insuring himself against the balance of his collision liability, and against whatever other liabilities to third parties might be imposed upon him. There was a hesitation on the part of underwriters to meet these wants and the result is that in Great Britain most liability insurances are effected in mutual insurance societies. The insurance of such liabilities is perhaps simpler in Great Britain than in other countries, as the amount for which a shipowner can be liable is limited by law, although, of course, none but English tribunals are bound by that law. A new and extensive set of liabilities has been thrown on shipowners by the Workmen’s Compensation Act of 1906; the liabilities in this case vary with the wages of the workmen concerned. Another interesting class of insurances has received much attention, namely, those against the risks of capture, seizure and detention by a hostile power, generally described briefly as war risks. But the difficulties connected with such risks probably lie more in determining the legal position of the owners of the property, and the obligations under which they lie, than in settling those of their underwriters. Such questions concern blockade, contraband, domicile, nationality, neutrality, &c.

The usual procedure in the offer and acceptance of a risk is as follows: The intending insured (principal or broker) offers the risk by showing to the underwriter a brief description of the venture in question, called in Great Britain a slip, in America an application. The underwriter signifies his

acceptance of the whole or of a part of the value exposed to perils by signing or initialling the slip, putting down the amount for which he accepts liability. Or he may sign and issue to the insured (principal or broker) a similar document made out in his own office, called a covering note or insurance note. These documents are simply first sketches of the contract, mémoires pour servir, so imperfect that they can be explained only in conjunction with the contract in its completed form (the policy). In America it is not at all rare for insurances to be effected through applications alone without any policy existing. In Great Britain the existence of a policy is essential, slips and covering notes being merely provisional agreements, binding in honour only, to issue policies on certain terms and conditions on receipt of the necessary information. One reason for insisting on a policy being issued for every risk is that a means of raising revenue by stamp taxes is thus created. In Great