RISK. 



formed from the verb averare, to carry, has been explained 

 under that article. It is here ufed to fignify a contribution 

 made by the owners of the (hip, freight, and goods on board, 

 in proportion to their refpective interefts, towards any par- 

 ticular lofs or expence fuftained for the general fafety of the 

 (hip and cargo ; fo as that the particular lofer may not be 

 a greater fufterer than the owner of the (hip and the other 

 owners of goods on board. This juft and equitable contri- 

 bution is called generator grofs average, becaufe it falls gene- 

 rally upon the whole or grofs amount of the (hip, freight, and 

 cargo ; and alfo to diftinguifh it from what is often, though 

 improperly, termed particular average, but what, in reality, 

 means a particular, and not a general lofs, and has no affinity 

 to average properly fo denominated. The petty and accuf- 

 tomed averages are fuch as pilotage, towage, light-money, 

 beaconage, anchorage, bridge-toll, quarantine, river-ehargi . 

 fignals, inftructions, callle-money, pier-money, digging the 

 fhip out of the ice, &c. When thefe petty charges are in- 

 curred in the ufual courfe of the voyage, they are not con- 

 fidered as a lofs within the meaning of the policy, but only 

 a neceffary and ordinary expence ; but if incurred for any 

 extraordinary purpofe in the voyage, as to provide againit 

 any impending danger, or in coniequence of the (hip's being 

 driven out of her courfe by ftrefs of weather, they will then 

 be deemed grofs or general average, for which the infurer 

 will be liable. A contribution upon a general average can 

 only be claimed when the facrifice, occafioning the lofs, was, 

 after due deliberation, found to be indifpenfably neceflary for 

 the prefervation of the fhip and cargo, whenever it appears 

 to have conduced to this purpofe, and when the fhip and 

 reft of the cargo were actually faved. If goods put into 

 lighters to enable a fhip to get up a river be loft, the reft 

 fhall contribute ; but if the fhip be loft, the goods in the 

 lighters fhall not contribute. It has been faid that the 

 wages and expences of the crew during the detention of a 

 thip unjuitly captured, as well as the charge of reclaiming 

 her, and that the charges of wages, &c. upon a fhip thai is 

 obliged to go into port to refit after a ftorm, fhould be 

 brought into a general average. This point has never been 

 decided in a court of juftice, but the principle feems to 

 have been allowed by judges of great authority in cafes that 

 have occurred. 



No injury occafioned by mere fea-damage can be the 

 proper fubject of a general average : as if the fhip be da- 

 maged in her hull or her rigging, the goods on board fhall 

 not contribute ; alfo, if a fhip fpring a-leak in a ftorm, by 

 which goods on board are fpoiled, this is a fimple damage, 

 or particular lofs, and cannot be the fubject of an average 

 contribution. 



The rule with regard to average contribution feems to be, 

 that the fhip, freight, and every thing remaining on board 

 that can properly be deemed a part of the cargo, fhall be 

 fubject to this charge ; and therefore money, plate, and 

 even jewels, mufl contribute according to their value. But 

 the perfons on board, their wearing apparel, and alfo the 

 jewels and ornaments belonging to their perfons, fhall not 

 contribute ; neither are feamen's wages liable to contribu- 

 tion. When the captain arrives at his port of deftination, 

 it is his duty to fettle the contribution ; and the average, if 

 not fettled before, fhould be paid before the cargo is landed : 

 for the owners of the fhip have a lien on the goods on board, 

 not only for the freight, but alfo to anfiver all averages and 

 contributions that may be due. If he neglect his duty in this 

 refpect, Mr. Serjeant Marfhall conceives that an action 

 weuld lie againft him, or againft the owners. If the lofs 

 was in money paid, an action on the cafe for money paid 

 would unqueftionably lie agaiaft each perfon bound to con- 



9 



tribute for his fhare ; if in goods, a fpecial action on the 

 cafe, founded on the cuflom of trade, would lie againft each 

 perfon liable to contribute; or a bill in equity mighl 

 filed againft them all. The mode of afcertaining each per- 

 fon's contribution, though not very accurately defined, i 

 ufually effected by ascertaining, after the (hip's arrival at 

 her port of difcharge, the neat value of the fhip, freight, 

 and cargo, as if nothing had been loft ; and valuing thefe 

 at the price they would fetch in ready money at the port of 

 difcharge; and the neat amount, after deducting all charges, 

 is the (urn which is fubject to the contribution ; and each 

 perfon's (hare of the lofs will bear the fame proportion to 

 the value of his property, as the whole lofs bears to the 

 aggregate value of the (hip, freight, and cargo. In Eng- 

 land, iome perfons make the fhip contribute for her full 

 value and the freight ; others, for half her value and one- 

 third of the freight ; and others, again, for half the value 

 of the fhip and freight : and fhe fhall be valued at the price 

 (he was worth on her arrival at her port of delivery. The 

 freight is valued at the fum the fhip has earned on her ar- 

 rival there. 



As to the mode of valuing the jettifon, it is now the 

 fettled practice with us to eftimate the goods loft at the 

 price they would have fetched at the port of delivery, on 

 the fhip's arrival there ; freight, duties, and other charges 

 being deducted. Thefe contributions, under the general 

 words of the policy, are a charge which the infurer is bound 

 to pay ; and it makes no difference whether the infured pay 

 towards, or receive, this : he ought, in either cafe, to bear 

 the proportion of the general lofs, and that muft fall on the 

 iniurers. For the lofs by expence of falvage, fee Sal- 

 vage. 



With regard to cafes of wilful and fraudulent loffes, the 

 ftat. i Ann. ft. 2. c. 9. 64 and 5. makes it a fimple felony 

 to deflroy any ftiip, to the prejudice of the owners of the 

 fhip or goods on board ; and takes away clergy, if com- 

 mitted on the high feas. And the 4 Geo. I. c. 12. ex- 

 tends this to the cafe of the owner or matter who fhall de- 

 ftroy any fhip, to the prejudice of the owners of, or under- 

 writers upon, goods. The 1 1 Geo. I. c. 29. takes awa) 

 clergy from fuch offenders in all cafes. See Pirate. 



In cafes where the infured is entitled to call upon the in- 

 furer as for a total lofs, he mult " abandon ;" that is, he 

 mull renounce and yield up to the infurer all his right, title, 

 and claim to what may be faved, and leave it to him to 

 make the moll of it for his own benefit. The infurer then 

 ftands in the place of the infured, and becomes legally en- 

 titled to all that can be refcucd from deftruction. The idea 

 of " abandonment," therefore, prefuppofes a total lofs in 

 this latter fenfe, and implies that fomething remains which 

 may be faved, and which may be given up, or abandoned 

 to the infurers. For if the infured could only abandon, in 

 the cafe of a total lofs, in the ftrict and natural fenfe of the 

 words, there would be nothing to abandon, and abandon- 

 ment would then be only an ufelefs form. Some have faid 

 that the practice of abandoning dates its origin from the 

 period when the contract of infurance itfelf firfl came into 

 ufe ; and yet it does not feem to be a right which neceflarily 

 refults from the nature of the contract. It feems more pro- 

 bable that abandonment arofe from the practice of occa- 

 fionally introducing into policies particular flipulations, that 

 if the thing infured fhould be fpoiled, or greatly damaged, 

 by any of the perils infure-4 againft, it fhould be abandoned 

 to the infurers, who fhould be thereupon obliged to pay 

 the entire fum infured ; and that fimply making good the 

 damage fhould not be fufficicnt to dilcharge them : and 

 fuch ftipulations, being frequently introduced into the con- 

 , tract, 



