notice given thereof, if the detention took place in European seas, the Mediterranean or the Baltic. Nor until one year after such notice, if the detention took place in more distant countries. (145) These terms begin only from the day of notice given of the arrest or detention. If the merchandise so detained is of a perishable nature, the above mentioned periods are reduced to one month and a half in the first case, and three months in the second. ART. 388. The insured are bound during the periods above mentioned, to use their utmost endeavours to obtain the release or restitution of the property detained. The insurers may, concurrently with the insured, or severally, employ the means in their power to obtain the same end. ART. 389. A vessel cannot be abandoned on the ground of insufficiency, if she can be again set afloat, repaired and put in a condition to proceed to the place of her destination. In such case the insured preserves his rights and remedies, against the insurers for the expenses and average occasioned by the stranding of the vessel. ART. 390. If the vessel be declared unfit for sea, the owners of the cargo insured, are bound to give notice thereof to the insurer, within three days after receiving such information. ART. 391. In such case, the master is bound to use his best endeavours to procure another vessel to carry the merchandise to the place of its destination. ART. 392. In the case mentioned in the last preceding article, the merchandise shipped on board of another vessel, is at the risk of the insurers, until its safe arrival and discharge. ART. 393. The insurer is moreover bound for average and the charges of unloading, storage, re-shipment, extra freight, and all other expenses which might have been incurred to preserve the merchandise, up to the amount of the sum insured. ART. 394. If within the term prescribed by art. 387. the master cannot procure another vessel on which to reship the merchandise, and bring it to the place of its destination, the insured may abandon the same. ART. 395. In cases of capture, when it is not in the power of the insured to give information thereof to the insurer, he may redeem the property without waiting for his orders. The insured is bound to inform the insurer as soon as it is in his power of the compromise which he has made with the captors. ART. 396. The insurer is at liberty to take the compromise for his own account, or to refuse it; he is however bound to make his (145) This rule has been adopted in the United States, since American property has become exposed to frequent captures, by the cruizers of the belligerent powers of Europe. A clause is now generally inserted in policies of insurance, by which the insured promise not to abandon, in case of capture or detention by a foreign prince, until the expiration of a stated period, (varying from sixty days to six months) after advice thereof, unless the property be previously condemned. See above, note 140. election known to the insured within twenty-four hours after receiving notice of the compromise. If he declare that he takes the compromise for his own account, he is bound to contribute without delay to the payment of the sum agreed upon according to the terms of the contract, and in proportion of his interest; and he contiues to bear the risks of the voyage, agreeably to the policy of insurance. If he declare that he waives the benefit of the compromise, he is bound to pay the sum insured, and has no claim whatever on the property redeemed. If the insurer has not notified his determination within the term above mentioned, he is considered as having waived the benefit of the compromise. (146) TITLE XI. Of Average. ART. 397. All extraordinary expenses incurred on account of the ship, the cargo, or both, as well as all damage happening to the vessel and goods from the time of their lading and departure until their arrival and discharge, are reputed average. ART. 398. If there be no special agreement between the parties, average is settled and adjusted on the following principles. ART. 399. There are two descriptions of average: gross or general, and simple or particular. ART. 400. The ensuing fall under the description of general average, to wit: 1. Things given by way of compromise for the redemption of the vessel and cargo, 2. Things that are cast away or thrown overboard, 3. Cables or masts broken or cut down, 4. Anchors and other things abandoned for the common safety, 5. Damage suffered in consequence of jettison, by the merchandise remaining on board of the vessel. 6. The cure and maintenance of mariners wounded in the defence of the ship, the wages and maintenance of seamen during the time that the vessel is detained in the course of her voyage, by a sovereign or prince, and while (146) The reader will probably wonder at not finding any thing in this title, nor indeed in the whole code, on the subject of warranty, which makes so conspicuous a figure in the English law of insurance. The fact is, that that doctrine is peculiar to the British system of mercantile jurisprudence; according to which every clause in a policy, in which the words warrant or warranty are used, is construed strictly as against the warrantor, and liberally in favour of the warrantee, who in almost every case is the insurer. The French law on the contrary, considers commercial contracts as engagements founded entirely on good faith, which are to be construed liberally and equitably, without regard to any form or set of words, or to technical niceties. It does not therefore distinguish a warranty from any other promise, and is contented to inforce it according to its bonâ fide import and meaning, and the intention of the parties. she is repairing in consequence of damage voluntarily suffered for the common safety, if the vessel is freighted by the month. (147) 7. The charges of unlading in order to lighten the ship and facilitate her entry into a port or river, when compelled thereto by stress of weather, or by being chased by an enemy. 8. The expense of setting the vessel afloat when stranded, to prevent her total loss or capture. And, in general, the damage voluntarily suffered, and expenses incurred, after a formal deliberation and resolution stating the causes and motives thereof, for the safety of the ship and goods, from the time of their shipment and departure to that of their arrival and discharge. ART. 401. General average is borne by the merchandise and one half of the vessel and freight, in proportion to their respective value. ART. 402. The merchandise is valued at the price that it was worth at the port of delivery. ART. 403. The following come under the description of simple average, to wit: 1. The damage happening to the merchandise from its internal defects, through stress of weather, or in consequence of capture, shipwreck or stranding, 2. The expenses incurred to save it, 3. The loss of cables, anchors, sails, masts or cordage, occa- (147) But those expenses are only simple average, if the ship be freighted for the voyage, post. art. 403. No. 4. The same distinction is made in the ordinance of Louis XIV. h. t. art. 7. M. Valin is at a loss as well as ourselves to comprehend the reason of it, particularly as it appears to be in contradiction with the 7th article of the same ordinance, title Freight, and the 5th article of the title concerning mariners' wages. To make the reader understand the manner in which those several articles contradict each other, and in what points of view they are objectionable, would require a long, and to us an useless explanation; we think it sufficient to refer to Valin's full and able discussion of the subject, in the second volume of his Commentary on the ordinance, page 168. The compilers of this code do not appear to have profited by the reflections of that excellent commmentator. For they have copied the contradictory and objec tionable articles without endeavouring to modify, explain or reconcile them. On comparing the articles 254 and 300 with those of the ordinance that are quoted above, they will be found to be substantially the same, and liable to the same objections. This is not the only instance in which this work is liable to a similar reproach. 5. The wages and provisions of the ship's company during quarantine, whether the vessel is hired for the voyage, or by the month. And, in general, the expenses incurred for, and damage suffered by, the ship or merchandise alone, from the time of their shipment and departure, to that of their arrival and discharge. ART. 404. Simple average is paid by the owner of the property, which has received the damage or occasioned the expense. ART. 405. The damage suffered by merchandise in consequence of the master's neglecting to keep the hatches closed, and the ship' well fastened, or not providing good tackle and ropes, and generally all other accidents occasioned by the negligence of the master or seamen, fall likewise under the description of simple average, and are borne by the owner of the goods, who preserves his right and remedy for the same against the master, ship and freight. ART. 406. Loadmanage, towage and pilotage into or out of a port or river, all duties for clearance, search, reports, tonnage, lighthouse, anchorage and other navigation dues, are not considered average, but are merely expenses at the charge of the vessel. ART. 407. In case of collision, or vessels running foul of each other, if the occurrence was accidental, the damage is borne by the vessel that has received it, and there is no remedy against the other vessel. If the collision took place by the fault of the master of either vessel, the damage is paid by him who was in fault. If there be any doubt as to which occasioned the collision, both vessels shall contribute in equal portions, to the expenses of repairing the damage suffered. In the two last cases, the appraisement of the damage is made by surveyors officially appointed. ART. 408. A demand of average cannot be admitted, if the general average does not exceed one per cent. on the aggregate value of the ship and goods, and if the simple average does not also exceed one per cent. of the value of the article damaged. ART. 409. The clause free from average, exonerates the insurers from all general or simple average, except in those cases in which there is sufficient cause for abandonment, and then the insured have their choice, either to abandon and claim for a total loss, or to sue for an average or partial loss. (148) (148) And may sue for a partial loss after the expiration of the time limited for making the abandonment. See above, note (140). We are informed that the same principle has lately been recognised in England, by lord Ellenborough, in the case of Barker v. Atkins, tried at the Nisi Prius sittings at Guildhall, London, on the 29th of last July. That case was an insurance from New York to any port in the Baltic. The vessel was captured by a boat from shore as she was hovering near her port of discharge. The loss was known in December 1810, but the assured did not abandon until the month of April. Lord Ellenborough held that the abandonment was too late, but he told the jury that in making up their estimate of a partial loss, the only thing to deduct from the total loss was the chance of recovering the cargo, and the jury would consider how much they thought that chance worth. The jury found for the plaintiff, damage on average loss, 80 per cent. Gaz. U. S. Oct. 5, 1811. A similar TITLE XII. Of Jettison and Contribution. ART. 410. If in consequence of a storm, or being chased by an enemy, the master thinks himself obliged, for the safety of the vessel, to cast away part of his lading, to cut down his masts, or let go his anchors, he takes the advice of the owners of the cargo who may be on board of the vessel, and of the principal persons of the ship's company. If they differ in opinion, that of the master and principal mariners shall prevail. ART. 411. The articles of the least necessity, those that are the heaviest and of the least value are first thrown overboard, and afterwards the merchandise stowed betweeen decks at the choice of the master, and with the advice of the principal persons of the ship's company. ART. 412. The master is bound, as soon as it is in his power, to commit to writing the deliberation which takes place. The deliberation specifies: The motives which have determined the jettison, The articles thrown overboard, or damaged. It contains the signature of the persons who have assisted at the deliberation, or their reasons for not signing the same. It is transcribed on the ship's register or journal. ART. 413. The master is bound, within twenty-four hours after his arrival at the first port, to confirm by his oath the facts contained in the deliberation inscribed in his register or journal. ART. 414. A statement of the loss and damage is made at the port of delivery by skilled and intelligent referees (149) on the requisition of the master. The referees are appointed by the tribunal of commerce, if the ship is unladen in a French port. And by the justice of the peace, if there is no tribunal of commerce. If the vessel is unladen in a foreign port, the referees are appointed by the consul of France, and if there is no consul, by a magistrate of the place. A similar decision was given in 1803, by the Supreme Court of Pennsylvania, in Watson & Paul v, The Insurance Company of North America, 1 Binney, 47. (149) Des experts. This word in the French law means persons of skill and experience in a particular art, trade or profession, appointed by a court of justice to report on a particular fact connected with their branch of business. Thus, when a survey is to be made of a ship or cargo, in order to see whether the one is seaworthy or the other damaged, the court appoints ship-masters, carpenters and other persons who are conversant in matters of the kind. If a signature is to be tested by comparison of hands, writing-masters are appointed to examine and report on it. On the same principle, the adjustment of average accounts is referred to persons well acquainted with business of that nature, and those various descriptions of surveyors, referees, examiners, &c. are known in law under the general denomination of experts, the meaning and derivation of which are sufficiently obvious. See above, note 109. |