original terms as to compensation of the master and seamen, and the insurer is liable for such wages as owner, not as insurer.

Hammond v. Essex Fire & Marine Ins. Co., 11 Fed. Cas. 387; Frothingham v. Prince, 3 Mass. 563; McBride v. Marine Ins. Co., 7 Johns. (N. Y.) 431. And the seamen are still entitled to their lien for wages (In re Ripley, 9 Daly [N. Y.] 252).

If the master makes a special contract to receive a moiety of the freight in lieu of wages, and procures insurance of his part of the freight. and abandons as for a total loss, and freight is subsequently earned, his abandonment does not operate as an assignment of the freight so subsequently earned, and he is entitled to recover his moiety of the same freight against the abandoners of the vessel (Hammond v. Essex Fire & Marine Ins. Co., 11 Fed. Cas. 387).

The insurer who has accepted an abandonment is liable for reasonable compensation to the master in preserving and looking after the salvaged property, and for reasonable expenses incurred by him in performing such services.

Lawrence v. New Bedford Commercial Ins. Co., 15 Fed. Cas. 75; Gilchrist v. Chicago Ins. Co., 104 Fed. 566, 44 C. C. A. 43.

Where there are several insurers, since they become the owners, by the abandonment of the insured vessel, in proportion as they are each liable for her insurance, each is also liable for the same proportion of the entire indebtedness incurred by the master for work done in the attempt to rescue the vessel (Gilchrist v. Chicago Ins. Co., 104 Fed. 566, 44 C. C. A. 43). And generally the several underwriters are liable separately, and not as partners, for the amounts expended for necessary repairs; each being liable for a sum bearing the same ratio to the whole sum so expended as the sum underwritten by him bore to the whole amount underwritten (United Ins. Co. v. Scott, 1 Johns. [N. Y.] 106).

Where a vessel insured for one-third its value was abandoned, and the insurance paid as for a total loss, the rule as to abandonment by a co-tenant does not apply; and if the underwriters, after examination by their agent, neither raise, nor prevent the assured from raising, the wreck, they are not liable to the insured for any part of its value (Alleghany Ins. Co. v. Ransom, 69 Pa. 496).

4. LIMITATION OF LIABILITY BY MEMORANDUM CLAUSE AND EXCEPTION OF PARTICULAR AVERAGE.

(a) Nature and purpose of memorandum clause.

(b) Articles included in memorandum clause.

(c) Necessity of actual total loss.

(d) Total loss of portion of subject-matter.

(e) Restrictions as to cause of loss.

(f) Determination of extent of loss.

(a) Nature and purpose of memorandum clause.

Of the various kinds of property, goods, etc., which may be the subject of marine insurance, some are more liable to injury by the perils insured against than others. Some classes of articles are in their nature perishable, rendering it extremely difficult, and sometimes impossible, to determine whether the damage to such articles. is due to the peril or to their inherent tendency to decay. This has led insurers to limit their liability as to such articles by a clause known as the "memorandum clause." This clause, in its common form, provides that certain articles recognized as perishable “are warranted free from particular average," or "are warranted free from average unless general or the ship be stranded." Other articles. less perishable "are warranted free from average under" a certain per cent., and as to all other goods, the ship and the freight, they "are warranted free from average under" a certain other per cent., "unless general or the ship be stranded." The object of the clause is to exempt the insurer from trivial losses as to articles generally, and from any partial loss to articles perishable in their nature. But this exemption depends on the cause of loss. If the loss is by stranding, or is otherwise what is known as a general average loss, the clause does not apply. It is only when it is in the nature of a particular average loss that the limitation is brought into operation. And as said in Potter v. Suffolk Ins. Co., 19 Fed. Cas. 1186, the effect of the memorandum clause is not to enlarge the perils insured against, but to exempt the underwriters from certain losses within those perils. The insertion of the memorandum excepting the articles therein specified from particular average does not vary the rule by which, when a loss on such articles happens from shipwreck or by damage to the vessel, it is deemed a partial or total loss (Poole v. Protection Ins. Co., 14 Conn. 47). The clause merely limits the liability of the insurer when the loss is partial.

A particular average loss is one suffered by and borne by particular interests—a loss which occurs under such circumstances as do not entitle the owner to call on the other owners concerned in the venture to contribute for his reimbursement (Orrok v. Commonwealth Ins. Co., 21 Pick. [Mass.] 456, 32 Am. Dec. 271). A general average loss, on the other hand, is one which gives a claim to general average contribution from all the owners concerned in the venture, and occurs when there is some voluntary sacrifice made or voluntary expense incurred for the common benefit.

Columbian Ins. Co. v. Ashby, 13 Pet. 331, 10 L. Ed. 186; Peters v. Warren Ins. Co., 19 Fed. Cas. 370, 373; Reynolds v. Ocean Ins. Co., 22 Pick. (Mass.) 191, 33 Am. Dec. 727.1

A loss, whether in the nature of a general average loss or a particular average loss, may be total or partial. By commercial usage, however, the term "particular average," as used in the memorandum clause, has come to be synonymous with partial loss.

Coster v Phoenix Ins. Co., 6 Fed. Cas. 611; Riley v. Ocean Ins. Co., 11
Rob. (La.) 255.

Consequently a warranty "free from average unless general" exempts the insurer from all losses except a general average loss and a total loss (Wadsworth v. Pacific Ins. Co., 4 Wend. [N. Y.] 33). Therefore under the warranty the insurer is liable for a general average loss, however small.

Fireman's Ins. Co. v. Fitzhugh, 4 B. Mon. (Ky.) 160. See, also, Saltus v. Ocean Ins. Co., 14 Johns. (N. Y.) 138, and De Farconnet v. Western Ins. Co. (D. C.) 110 Fed. 405.

If, however, the clause is merely "free from average," without qualifying words, the insurer is exempt from all partial losses, whether they are in the nature of general average losses or not.

Coster v. Phoenix Ins. Co., 6 Fed. Cas. 611; Bargett v Orient Mut. Ins. Co., 16 N. Y. Super. Ct. 385. And a written clause "free from average" will prevail over a printed clause excepting general average.

(b) Articles included in memorandum clause.

Where, in the memorandum clause, certain enumerated articles. are warranted free from average unless general, "and all other articles perishable in their own nature," it may be shown that other

1 For the rules and principles governing general average and contribution

therefor, see Century Digest, vol. 44, "Shipping," cc. 739-789, §§ 598–636.

articles not enumerated are also perishable in their own nature (Nelson v. Louisiana Ins. Co., 5 Mart. N. S. [La.] 289). Corn, grain, and vegetables are generally included in the memorandum as perishable articles, and it has therefore been held that potatoes, though not specifically named, are perishable articles, within the memorandum.

Robinson v. Commonwealth Ins. Co., 20 Fed. Cas. 1002; Williams v. Cole, 16 Me. 207.

It was, however, held in Coit v. Commercial Ins. Co., 7 Johns. (N. Y.) 385, 5 Am. Dec. 282, where vegetables and roots were enumerated, that, in view of the usage in New York, sarsaparilla root was not perishable so as to fall within the memorandum. But in the absence of evidence of a usage to the contrary, a root, though dried and prepared so as to be deprived of its germinating qualities, will be included by the general clause enumerating vegetables and roots (Klett v. Delaware Ins. Co., 23 Pa. 262).

The following articles have been held not to be perishable in their own nature: Deer skins, Bakewell v. United Ins. Co., 2 Johns. Cas. (N. Y.) 246; furs, Astor v. Union Ins. Co., 7 Cow. (N. Y.) 202; pickled fish, Baker v. Ludlow, 2 Johns. Cas. (N. Y.) 289; fertilizers, Mayo v. India Mut. Ins. Co., 152 Mass. 172, 25 N. E. 80, 9 L. R. A. 831, 23 Am. St. Rep. 814. Ice was held to be perishable in Tudor v. New England Mut. Marine Ins. Co., 12 Cush. (Mass.) 554.

Though the enumeration of hides and skins necessarily includes deer skins (Bakewell v. United Ins. Co., 2 Johns. Cas. [N. Y.] 246), it does not include furs when such articles are not perishable in their nature (Astor v. Union Ins. Co., 7 Cow. [N. Y.] 202). The enumeration of "fruit" includes dried prunes (De Pau v. Jones, 1 Brev. [S. C.] 437), and, under a policy exempting the insurer from liability for partial loss on "bar or sheet iron," evidence that, by a custom in the iron trade, the words "bundles of rods" referred to bar iron, was admissible (Evans v. Commercial Mut. Ins. Co., 6 R. I. 47).

In determining whether certain articles are within the memorandum in a policy of insurance providing against particular average, evidence that the agent of the assured urged the taking of the risk, on the ground that the articles would be free from particular average, is not admissible. Nor is evidence showing insurance at a higher premium on nonmemorandum articles for the same voyage at other offices (Astor v. Union Ins. Co., 7 Cow. [N. Y.] 202).

Where the memorandum clause provides that the insurer shall not be liable for any partial loss on bar or sheet iron, iron wire, hoop iron, etc., grain of all kinds, etc., nor for any partial loss on hemp or flax, unless the same shall amount to 20 per cent. on the whole aggregate value thereof, the latter provision does not modify the former, so as to render the insurer liable if the loss on bar iron exceeds 20 per cent. (Evans v. Commercial Mut. Ins. Co., 6 R. I. 47). Conversely when the policy contained the usual memorandum clause, by which certain enumerated articles, including wire of all kinds and steel, were "warranted by the assured free from average, unless general"; and also a rider reading, "Free of particular average, but liable for absolute total loss of a part, if amounting to 5 per cent.," it was held that the memorandum clause and rider were in pari materia, and, construed together, exempted the insurer from liability for particular average as to all articles covered by the policy, whether or not they were within the enumeration of the memorandum (Washburn & Moen Mfg. Co. v. Reliance Marine Ins. Co. [C. C.] 106 Fed. 116).

(c) Necessity of actual total loss.

As has been pointed out in subdivision (a), the purpose of the memorandum clause is to exempt the insurer from liability for a partial loss on certain perishable articles; but it is the general rule, as to which the authorities are unanimous, that under the general provision of the memorandum, "warranted free from average unless general," the insurer is not liable except for a total loss.

Morean v. United States Ins. Co., 1 Wheat. 219, 4 L. Ed. 75, affirming 16 Fed. Cas. 707; Washburn & Moen Mfg. Co. v. Reliance Marine Ins. Co., 179 U. S. 1, 21 Sup. Ct. 1, 45 L. Ed. 49, affirming 82 Fed. 296, 27 C. C. A. 134, Id. (C. C.) 106 Fed. 116; Louisville Fire & Marine Ins. Co. v. Bland, 9 Dana (Ky.) 143; Brooke v. Louisiana State Ins. Co., 4 Mart. N. S. (La.) 640; Brooke v. Louisiana Ins. Co., 5 Mart. N. S. (La.) 530; Aranzamendi v. Louisiana Ins. Co., 2 La. 432, 22 Am. Dec. 136; Skinner v. Western Ins. Co., 19 La. 273; Williams v. Kennebec Mut. Ins. Co., 31 Me. 455; Maggrath v. Church, 1 Caines (N. Y.) 196, 2 Am. Dec. 173; Neilson v. Columbian Ins. Co., 3 Caines (N. Y.) 108; Le Roy v. Gouverneur, 1 Johns. Cas. (N. Y.) 226; Saltus v. Ocean Ins. Co., 14 Johns. (N. Y.) 138; Astor v. Union Ins. Co., 7 Cow. (N. Y.) 202; Devitt v. Providence Washington Ins. Co., 70 N. Y. Supp. 654, 61 App. Div. 390.

Thus, in Saltus v. Ocean Ins. Co., 14 Johns. (N. Y.) 138, part of the memorandum articles were jettisoned, constituting as to these a