a river, or on the rocks, or on the seashore. But a mere striking will not do, no matter where that may happen.1 As a mere striking the ground with a temporary stoppage will not suffice to constitute a stranding, neither will it suffice if the ship be dragged through the mud, or if she pass over a bar bumping at intervals; but if she is forced ashore or driven on a bank, and remains for any time on the ground, that constitutes a stranding without reference to the degree of damage she may thereby sustain. The shortest time which has been allowed by the English courts as sufficient to amount to a stranding, occurred in a case where it appeared that the vessel had struck upon a rock and remained from fifteen to twenty minutes. This was deemed a sufficiently long detention upon. the ground to comply with the condition. Where a vessel is intentionally run ashore, as, for instance, to keep her from sinking, the grounding is equally a stranding as where it is purely accidental.3

The voluntary stranding of a ship in the presence of an extreme peril is not, by the rule prevailing in England, a general average act which calls for general contribution from the other interests; but, as we have already observed, the rule is otherwise in the United States.1

§ 234. Cargo on Deck.-Cargo on deck is not covered by this policy unless specially indorsed hereon; in all cases to be free from loss by wet, breakage, leakage, or exposure.

The general rule in regard to deck load, and the effect of custom upon it, have been already considered.

Although not entitled to protection by the terms of the policy, the deck load, if benefited by a general average act, must contribute its share together with the other interests.

§ 235. Blockade.- Warranted not to abandon in the case of blockade, and free from any expense in consequence of capture, seizure, detention, or blockade, but in the event of blockade, to be at liberty to proceed to an open port and there end the voyage.

1

' McDougle v. Royal Exchange As

surance, 4 Camp. 283.

Baker v. Towry, 1 Stark. 436.

Bowring v. Elmslie, 7 T. R. 216. Columbian Ins. Co. v. Ashby, 13 Peters, 331. Star of Hope, 9 Wall. 203.

This expressly limits a liability which would otherwise be imposed upon the insurers by the general terms of the body of the policy, as has been already explained in detail.

§ 236. Average Distinguished from Salvage Loss. -A particular average on goods consists either in a deterioration or total loss of part of the subject insured by the operation of the perils insured against.

It is requisite to distinguish between a particular average and a salvage loss on goods, as some confusion has occurred in the use of these terms. A salvage loss is a total loss diminished by salvage, and takes place, in relation to goods, when there is either an absolute or a constructive total loss of the subject insured, but some remains of the property have been recovered by the assured. In that case the claim upon the underwriters is for the difference between the insured value and the net proceeds; and the latter are computed by deducting from the gross proceeds of the property saved all charges incurred in realizing the salvage. In short, as it has been concisely put by Stevens, the merchant "receives the net proceeds from the person who effects the sales, and the balance from the underwriter."

Where only a part of the subject insured is sold short of its destination, the remainder being delivered there, the claim, though stated in practice after the manner of a salvage loss, is in principle one for particular average, which is proved by the fact that it is excluded by a warranty to be "free from average, unless general." If goods arrive in specie at their port of destination sea-damaged and with the marks obliterated, so that they cannot be delivered to their respective owners, there is nevertheless no claim for total loss under such circumstances, for the owners of the goods are tenants in common of the mass, and the claim is to be stated, according to the rules of particular average, as on goods which have arrived at their destination.2

§ 237. Riders.-A variety of forms of policies are in use. both in ocean marine and inland marine insurance, and a great

1 Ralli 422.

v. Janson, 6 El. &

B.

2 Spence v. Union Mar. Ins. Co., L. R., 3 C. P. 427.

number of special clauses have been framed, and such clauses are often attached in the form of riders, sometimes for the purpose of restraining and sometimes for the purpose of extending the liability of the underwriters for special purposes.

§ 238. Adjustment.-The details of the adjustments of marine losses between the insurers and the insured are frequently a matter of great complication, and for the most part are put into the hands of professional experts called average adjusters. The adjusters make up an account, apportioning the loss according to the respective rights of the different interests. If there are general average losses, these must be included; but if there has been a general average adjustment in a foreign port between the parties primarily interested in it, to wit, the owners of ship, cargo, and freight respectively, then the results arrived at in that adjustment are taken as conclusive and incorporated into the adjustment between the insurers and the insured. The professional adjuster is supposed to act in a judicial rather than in a partisan capacity, but his adjustment is not binding upon any of the parties unless by special agreement. In practice the adjustment is generally made the basis of an amicable settlement among the different interests, and law-suits are not as common over marine adjustments as in other branches of insurance business. On the arrival of the ship and cargo partially damaged, the master or owner of the ship advertises for bids for repairs. Bids are accepted, the survey of damage is made, and contracts for rebuilding executed. These, with the bills of lading or invoices, the freight manifest, the charter party, the policies of insurance, and any other proofs of loss, furnish the adjuster with the necessary material for making up his account.

After a loss has been adjusted and paid, the policy becomes merged in the adjustment, and the insurers cannot thereafter avail themselves of any defence, which they might have had under the policy as a ground for opening the adjustment; but for fraud in obtaining the adjustment itself relief can be obtained.1 This principle is applicable to adjustments in all

branches of insurance law.

1 Smith v. Glens Falls Ins. Co., 62 N. Y. 85.

PART SECOND.

LEADING ILLUSTRATIVE CASES.1

CHAPTER I.

TWO OF THE EARLIER ENGLISH CASES.

COURT OF KING'S BENCH, 1777.

TYRIE v. FLETCHER.

(Cowp. 666.)

The contract of insurance is an entirety. If the risk does not attach the premium is returnable, but if it attaches at all the premium cannot be apportioned.

THIS was an action on the case, for money had and received to the plaintiff's use, brought by the plaintiff, the insured in a policy of insurance, against the defendant the underwriter, for a return of part of the premium.

The cause was tried before Lord Mansfield, at Guildhall, at the sittings after last Trinity term, when, by consent, a verdict was found for the plaintiff, subject to the opinion of the court. upon the question, whether, under the circumstances of the case, a proportionable part ought to be returned or not. If the court should be of opinion that a proportionable part of the premium ought to be returned, then a nonsuit was to be entered.

It now came before the court, upon a rule to show cause why a nonsuit should not be entered; and the cause, as it appeared from the report, was shortly this: The policy of insurance was upon the ship Isabella, at and from London to

1 The chapters of Part Second are illustrative of the corresponding chapters of Part First, and should be read in connection with them.