Of the adjustment. . fity to prevent the lofs of the ship and cargo. As when a fhip is forced by ftorm to enter a port to repair the damage the has fuffered, if she cannot continue her voyage without an apparent risk of being loft; the wages and victuals of the crew are brought into an average from the day it was refolved to feek a port to refit the veffel to the day of her departure from it, with all the charges of unloading, reloading, anchorage, pilotage, and every other expence incurred by this neceffity. Bearves, 150. quoted by Buller, J. in Da Cofa v. Newenham, 2 Term Rep. 407. Lateward v. Curling, Park, 125. 7. When the quantity of damage fuftained in the voyage is known, and the amount which each underwriter upon the policy is liable to pay is fettled, it is ufual for the underwriter to indorfe on the policy "adjufted this lofs at so much per cent." or words to that effect. This is called an adjustment. Park, 117. 8. If he refufe to pay after this, the owner has no occafion to go into the proof of his lofs, or any of the circumstances respecting it. Ibid. 9. Action on a policy of infurance. A lofs having happened, the defendant, who was the infurer, had fettled the amount, and underwrote the policy in these words: "Adjusted the lofs on this policy at ninety-eight pounds per cent., which I do agree to pay one month after date." This he figned with his name, When the note became due, the defendant infifted on fuller proof of the warranty annexed to the policy being complied with. At the trial Lee C. J. was of opinion, that this was to be confidered as a note of hand, and that the plaintiff had no occafion to enter into the proof of the lofs, and he had a verdict thereupon, Hog v. Gouldney, at Guildhall, Trin. 1745. Beawes Lex Merc. 310. Hewit v. Flexney, S. P. ibid. 308, 10. Action on a policy on a foreign fhip, in which there was a ftipulation" that the policy fhall be fufficient proof of inte reft;" and judgment by default, On a motion to fet afide the writ of inquiry executed thereon, the court of K. B. were of opinion, that the underwriter having fuffered judgment to go by default, had confeffed the plaintiff's title to recover, and the amount of the lofs being fixed by his own ftipulation in the policy, the defendant needed only to prove the plaintiff's fubfcription to the policy to the jury. Thelluffon v. Fletcher, Dougl. 301. 11. If an infurer pay money for a total lofs, and in fact it be fo at the time of the adjustment, and if it afterwards turn out to be only a partial lofs, he fhall not recover back the money fo paid to the infured. Da Cofta v. Firth, 4 Burr. 1996. 12. An armed force boarded a fhip, in confequence of which she was stranded: the principal part of her cargo, confisting of corn, was taken by the mob at their own price. This lofs cannot be recovered as for a general average; but for fuch part as was damaged in confequence of the ftranding, and thrown overboard, the infurer may recover upon a count ftating the lofs to be by ftranding. Nesbitt & al. v. Lushington, 4 Term Rep. 783. 13. Where 13. Where a ship is obliged to go into port for the benefit of the whole concern, the charges of loading and unloading the cargo and taking care of it, and the wages and provifions of the workmen hired for the repairs, become general average. Da Cofta v. Newenham, 2 Term Rep. 407. 14. The most valuable goods, though their weight fhould be incapable of putting the fhip in the least hazard, as diamonds, &c., must be valued at their just price to this contribution. Peters v. Park, 126. Milligan, at G. Hall, Mich. 1787. cor. Buller, J. Park, 129. 15. Neither the perfons of thofe in the fhip, nor the fhip pro- 1 Mag. 71, vifions, nor respondentia bonds, nor wearing apparel in chefts and boxes, nor fuch jewels as belong to the perfon, nor the wages of failors, are to contribute to the general lofs. Ibid. 127. 16. The fhip, freight, and cargo are by custom in England to bear an equal and proportional part of the lofs arising from what is thus facrificed for the common good. Park, 127. Da Cofla v. Newenham, 2 Term Rep. 407. 17. The way of fixing a right fum by which the average ought to be computed, is by examining what the whole fhip, freight, and cargo, if no jettifon had been made, would have produced neat if they had been fold for ready money. And this is the fum whereon the contribution fhould be made, all the particular goods bearing their net proportion. I Mag. 69. 18. In England, the custom has become general of estimating the goods faved and loft at the price for which the goods faved were fold. Park, 128. 19. The contribution is in general not made till the ship arrive at the place of delivery; but accidents may happen which may cause a contribution before the reach her destined port: as when a vessel has been obliged to make a jettifon, or by damages fuffered foon after failing is obliged to return to her port of discharge. The expences arifing from hence may be then fettled by a general average. Park, 129. Of Salvage. I. SALVAGE is an allowance made for faving a fhip or goods, or both, from the dangers of the feas, fire, pirates, or enemies. Bearves Lex Merc. 146. It is alfo fometimes used to fignify the thing itself which is faved. lb. 2. In an action of trover, brought for goods which were in a fhip which took fire, the defendants refufing to deliver them up until they were paid falvage, Holt C. J. was of opinion, that the defendants might retain them until falvage was paid, as well as a itaylor, hoftler, or common carrier their refpective articles, Hartfort v. Jones, 1 Ld. Raym. 393. 2 Salk. 654. Made perpetual 4 G. I. C. 12. sea-5. 3. In cafes of wreck, 12 Ann. Stat. 2. c. 18. does not fix the rate of falvage, but ordains that it fhall be reasonable; that is, it must be a fufficient recompence to thofe who have encountered dangers for the prefervation of the fhip and cargo, regard being at the fame time had to the circumstances of the owner of the property faved, and it is to be ascertained by three justices of peace. Park, 135. 4. By 26 G. 2. c. 18. Any perfon not employed by the mafter, &c. in the falvage of a ship, &c. and faving them in the absence of thofe fo employed, or giving information to a juftice of peace, magiftrate, customhouse or excife officer, where any goods or effects belonging to a vefiel wrecked, &c. are wrongfully bought and fold, or concealed, then fuch perfon or perfons shall be entitled to a reasonable reward for fuch fervices, to be paid by the masters or owners, and to be adjufted in cafe of a difagreement about the quantum, in like manner as the falvage is to be adjusted by 12 Ann. Sect. 6. "And for the better afcertaining the falvage to be paid in pursuance of the prefent act, and the act before-mentioned, and for the more effectual putting the faid acts in execution, the juftice of the peace, mayor, bailiff, collector of the customs, or chief conftable, who fhall be neareft the place where any fhip, goods, or effects, fhall be ftranded, or caft away, fhall forthwith give public notice, for a meeting to be held as soon as poffible, of the fheriff or his deputy, the justices of the peace, mayors or other chief magistrates of towns corporate, coroners, or commissioners of the land tax, or any five or more of them, who are hereby empowered and required to give aid in the execution of this and the faid former act, and to employ proper perfons for the faving of ships in diftrefs, and fuch fhips, veffels, and effects as fhall be ftranded or caft away; and alfo to examine perfons upon oath touching or concerning the fame, or the falvage thereof, and to adjust the quantum of fuch falvage, and diftribute the fame among the perfons concerned in fuch falvage, in cafe of difagreement among the parties, or the faid perfons; and that every fuch magiftrate, &c. attending and acting at fuch meeting, shall be paid four fhillings a-day for his expences in fuch attendance, out of the goods and effects faved by their care or direction." 5. Provided, that if the charges and rewards for falvage, directed to be paid by the former ftatute and by this act, fhall not be fully paid, or fufficient fecurity given for the fame, within 40 days next after the faid fervices performed, then it fhall be lawful for the officer of the customs concerned in fuch falvage, to borrow or raise so much money, as fhall be fufficient to fatisfy and pay fuch charges and rewards, or any part thereof then remaining unpaid, or not fecured as aforefaid, by or upon one or more bill or bills of fale, under his hand and feal, of the fhip or velel or cargo faved, or fuch part thereof as fhall be fufficient, redeemable upon payment of the principal fum borrowed, and interest for the fame at the rate of 4 per cent. per annum.” 6. The act makes further provifion as to the perfons who are to put it in execution. Sec. 9 & 10. 12. 7. It punishes with transportation for feven years any perfon Sect. 11 & affaulting a magiftrate or officer when in the exercife of his duty respecting the preservation of any ship, &c. fect. 18. 2922 8. In cafe of a capture of any fhip, boat, or any goods therein, 13 G.2.c.4. which fhall be proved in the court of Admiralty to belong to any of his majesty's fubjects of any territories continuing under his protection and obedience, by any of his majesty's enemies, and they be again retaken, every fhip, &c. and every part thereof belonging to fuch fubject, fhall by decree of the court of Admiralty, be restored to the former owner, he paying in lieu of falvage, if taken by one of his majesty's fhips of war, an eighth part of the true value of the hips, veffels, boats, and goods fo to be restored; if taken by a privateer or other veffel, after having been in the poffeffion of the enemy twenty-four hours, one eighth part of the true value; if above twenty-four hours and under forty-eight, a fifth part thereof; if above forty-eight hours and under ninety-fix, a third part thereof; and if above ninety-fix hours, a moiety thereof. And if fuch fhip fo retaken fhall appear to have been, after the taking by the enemy, by them fet forth as a man of war, the former owners to whom it is to be restored, fhall pay for falvage the full moiety of the true value of the said ship so taken, without deduction. 9. The wearing apparel of the mafter, and feamen are always excepted from the aliowance of falvage. Beawes Lex Merc. 147. 10. The valuation of the fhip, in order to ascertain the rate of falvage, may be determined by the policy of infurance, if there be no reafon to fufpect fhe is undervalued; and the fame rule may be obferved as to goods where there are policies upon them. If that however should not be the cafe, the falvers have a right to infift upon proof of the real value, which may be done by the merchant's invoices, and they are to be paid accordingly. Beares, 147. Park, 140. 11. The infurers, by their contract, exprefsly agree to indemnify the infured against the charges of falvage. Ib. 12. Action on a policy of infurance infuring goods on the ship A. The plaintiffs declared, that the fhip fprung a leak and funk in the river, whereby the goods were fpoiled; the evidence was, that many of the goods were fpoiled; but fome were faved. The question was, Whether the plaintiffs might give in evidence the expences of falvage; that not being particularly ftated in the declaration, as a breach of the policy, and held by Lord Hardquick that they might. For the infurance is against all accidents, and the accident laid is, that the fhip funk in the river, and it lays a fpecial damage befides, that the goods were fpoiled, but it is a common cafe that the plaintiff may give in evidence any damage that is within his caufe of action notwithstanding. Carey v. King, Cafes in B. R. Temp. Hardw. 304. 13. The 1.3 G. 2. 1 13. The infured is only entitled to an indemnity, and fhall not receive a double fatisfaction for the fame lofs. Therefore where the king granted letters of reprifal on the Spaniards for the benefit of his fubjects, in confideration of the loffes they had fuftained by unjuft captures; Lord Chancellor Hardwicke held, that the infurers had a right to part of the prizes and not the owners, they having been already fatisfied by the former, and that if the goods had been reftored in fpecie, or compenfation made for them, the infured would ftand as a trustee for the insurer in proportion for what he paid. Randal v. Cockran, 1 Vef. 98. I. WHI Of Abandonment. HEN the thing infured is by fome of the ufual perils become of fo little value as to entitle the insured to call upon the underwriter to accept of what is faved and to pay the full amount of his insurance, as if a total lofs had actually happened, he is then faid to have a right to abandon. Park, 143. 2. The abandonment must be total and not partial of any particular part of the property insured. But in all cafes the infured has a right to elect whether he will abandon or not. Ib. 144. 2 Burr. 697. 1211. 3. An infured fhip was taken by a Spanish privateer, retaken by an English one and carried into Bofton in New England, where no perfon appearing to give fecurity, or to answer the moiety due for falvage, fhe was condemned and fold in the court of Admiralty there. The recaptors had their moiety, and the overplus money remained in the hands of the officers of the court. In an action on the policy the infured had a verdict. On a bill being filed by the infurer, praying an injunction, Lord Hardwicke C. refufed it, faying, that the infured having offered, and being willing to rewas an agree- linquish his interest in the falvage, he ought to recover the whole money infured. Otherwise upon a recapture a man would be in a worse fituation than if the ship were totally loft. Pringle v. Hartley, 3 Atk. 195. c. 4. f. 18. It was alfo mentioned per Canc. that there ment to go to trial in one of the actions, and to be bound by the event, and that all the circumstances of the cafe were known then to the parties. 4. Policy of infurance on a fhip and on the cargo (by two diftinct policies) from Newfoundland to Portugal or Spain, &c. The fhip was to be valued at the fum fubfcribed. The cargo was fish and other merchandize. Part of it was thrown overboard in a ftorm to preserve the rest. The ship was taken by the enemy afterwards. The mafter, mates, and all the failors (except an apprentice and a landman) taken out and carried to France; the fhip remained in the hands of the enemy eight days, and was then retaken by a British privateer, and brought into Milford Haven; immediate notice was given by the insured to the infurers, with an offer to abandon the ship and cargo. The fhip had been fo far difabled by a storm, as to render her incapable of proceeding on her deftined voyage without going into port to refit. The court held, that |