The American clause is applicable only in cases of double insurance, and the two policies must, therefore, cover identically the same property and interest. Gross v. New York & T. S. S. Co. (D. C.) 107 Fed. 516; Whiting v. Independent Mut. Ins. Co., 15 Md. 297; Perkins v. New England Marine Ins. Co., 12 Mass. 214; Palmer v. Great Western Ins. Co., 10 Misc. Rep. 167, 30 N. Y. Supp. 1044. To render the clause operative in favor of an insurer the other insurance must be actually prior (Hogan v. Delaware Ins. Co., 12 Fed. Cas. 309); and priority is to be determined by the date of the policy, and not the time the risk attached (Deming v. Merchants' Cotton Press & Storage Co., 90 Tenn. 306, 17 S. W. 89, 13 L. R. A. 518). If the two policies bear the same date, the insurer in one policy, to entitle himself to an exoneration from payment of a loss under the clause as to insurance by prior policies, may show the actual time of execution of each policy (Potter v. Marine Ins. Co., 19 Fed. Cas. 1167). If the property insured is fully covered by the prior policy, the second policy, under the operation of the American clause, will not attach. Potter v. Marine Ins. Co., 19 Fed. Cas. 1167; Amory v. Gilman, 2 Mass. Cancellation of the prior policy before the second policy is actually issued will render the clause inoperative (Roelker v. Great Western Ins. Co., 32 N. Y. Super. Ct. 275), but not cancellation before the loss (Macy v. Whaling Ins. Co., 9 Metc. [Mass.] 354). For specific examples of apportionment, reference may be made to Mc- (m) Deductions and offsets. In determining the liability of the insurer, certain deductions are under some circumstances made from the amount found to be due on account of the loss. The most common is the deduction of the amount due for premiums or on premium notes. Warren v. Franklin Ins. Co., 104 Mass. 518; Livermore v. Newburyport 471; Hurlbert v. Pacific Ins. Co., 12 Fed. Cas. 1009; The Natchez (D. C.) 42 Fed. 169; Aldrich v. Equitable Safety Ins. Co., 1 Fed. Cas. 336; Wiggin v. Suffolk Ins. Co., 18 Pick. (Mass.) 145, 29 Am. Dec. 576. But see Hayden v. Nevins, 21 N. Y. Super. Ct. 234. Not only premiums on the policy under which the loss occurred may be deducted, but also premiums on other policies entered into with the same insured. Leeds v. Marine Ins. Co., 6 Wheat. 565, 5 L. Ed. 332; Cleveland v. Clap, 5 Mass. 201. But premium notes on such other policies not due cannot be deducted. Murray v. Great Western Ins. Co., 72 Hun, 282, 25 N. Y. Supp. 414, affirmed 147 N. Y. 711, 42 N. E. 724. And when the policy covers a cargo furnished by the shipowner to one chartering his ship, and is made payable to the latter, in which the insurer insured the owner "on account of whom it may concern," the insurer cannot set off notes of the owner given for previous premiums. Pacific Mail S. S. Co. v. Great Western Ins. Co., 65 Barb. (N. Y.) 334. If the policy provides for an additional premium in case of increased risk, deduction therefor may also be made (Wright v. Sun Mut. Ins. Co., 30 Fed. Cas. 704). Among the deductions that may be made, the insurer may deduct the proceeds of the sale of materials from a vessel broken up. Smith v. Manufacturers' Ins. Co., 7 Metc. (Mass.) 448; a claim on bottomry, Wiggin v. American Ins. Co., 18 Pick. (Mass.) 158; a judgment against insured, Hazlehurst v. Bayard, 3 Yeates (Pa.) 152. The insurer cannot deduct on a total loss the cost of repairs to remedy defects which did not render the vessel unseaworthy. Depeyster V. Columbian Ins. Co., 2 Caines (N. Y.) 85. And on total loss of cargo the insurer cannot deduct the drawback allowed on exportation. Gahn v. Broome, 1 Johns. Cas. (N. Y.) 120. Under a policy insuring outfits of a whaling ship, by which one-fourth the catchings should replace outfit consumed, catchings shipped home cannot be deducted from a subsequent total loss. Mutual Marine Ins. Co. v. Munro, 7 Gray (Mass.) 246. On a distributive policy, insurer may deduct the value of articles saved (Canton Ins. Office v. Woodside, 90 Fed. 301, 33 C. C. A. 63). Where a part of the property was recovered, the insurer is entitled to a reduction of the amount of the insurance due upon total loss in proportion to the value of the property recovered, less the cost of recovery; but if the company abandoned an attempt to recover the property, in the belief that it was not liable under the policy, it can not hold the insured liable for any part of the expense incurred in the preparation for the recovery (Louisville Ins. Co. v. Monarch, 99 Ky. 578, 36 S. W. 563). The insurer is not liable for interest on proceeds which it holds, the owner not being known (Robinson v. Corn Exchange Ins. Co., 1 Abb. Prac. N. S. [N. Y.] 186). Where a policy covered liability for collision, and provided that in case of loss a certain amount should be deducted in lieu of average, only one deduction should be made, though more than one vessel was injured in the collision (New York Cent. & H. R. R. Co. v. British & Foreign Marine Ins. Co. [D. C.] 58 Fed. 916). If the policy separately values the hull and the machinery, the per cent. of deduction in case of collision is to be computed on the valuation of the hull only, the machinery not being injured (American S. S. Co. v. Indemnity Mut. Marine Assur. Co., 118 Fed. 1014, 56 C. C. A. 56, affirming [D. C.] 108 Fed. 421). Where a policy stipulates that in case of loss the insurance shall abate so much per cent., it is to be calculated upon the amount of the loss, not on the value of the cargo or of all the goods covered by the policy (Louisville Marine & Fire Ins. Co. v. Bland, 9 Dana [Ky.] 143). The right to make the deduction is not affected by the existence of concurrent insurance (Ronan v. Indemnity Mut. Marine Assur. Co. [D. C.] 127 Fed. 757). The insurer on freight may claim an allowance for freight earned prior to the breaking up of the voyage. Charleston Ins. & Trust Co. v. Corner, 2 Gill (Md.) 410; Whitney v. New York Fireman's Ins. Co., 18 Johns. (N. Y.) 208. But an advance on freight returnable because not earned cannot be deducted. Hagedorn v. St. Louis Perpetual Ins. Co., 2 La. Ann. 1005. Advances by charterer are not such payments on the charter as may be deducted from a policy on freight. Benner v. Equitable Safety Ins. Co., 6 Allen (Mass.) 222. Where the policy covered the interest of a lender on a bottomry draft to be paid at port of final destination from the first amount of freight received, freight received at an intermediate port, and used for the necessities of the vessel, cannot be deducted from a subsequent total loss. Force v. Providence Washington Ins. Co. (D. C.) 35 Fed. 767. But the insurer is not entitled to an allowance for freight earned on subsequent voyages. Jordan v. Warren Ins. Co., 13 Fed. Cas. 1105; Charleston Ins. & Trust Co. v. Corner, 2 Gill (Md.) 410; Saltus v. Ocean Ins. Co., 12 Johns. (N. Y.) 107, 7 Am. Dec. 290. When the insurance is on freight for successive voyages, as for outward and return voyages, freight earned on the outward voyages cannot be deducted. Hugg v. Augusta Ins. & Banking Co., 7 How. (U. S.) 595, 12 L. Ed. 834; Allowances for wages, provisions, and other charges on freight are not to be deducted from a total loss. McGregor v. Insurance Co. of Pennsylvania, 16 Fed. Cas. 129; Stevens v. Columbian Ins. Co., 3 Caines (N. Y.) 43, 2 Am. Dec. 247. Under a valued policy on freight, the insurer cannot claim an allowance in the nature of salvage for prepaid passage money (Delano v. American Ins. Co., 42 Barb. [N. Y.] 142). If an insured vessel is damaged by collision, and the owner recovers from the offending vessel, the insurer, on payment of the loss, is entitled to an accounting as of the sum so recovered. New England Mut. Marine Ins. Co. v. Dunham, 18 Fed. Cas. 66, affirming Dunham v. New England Mut. Marine Ins. Co., 8 Fed. Cas. 46. Where the insured recovered from the shipowner for the loss of goods, and subsequently a judgment for the loss was recovered upon the policy, in the name of the insured, but for the benefit of the shipowner, the underwriters, upon a bill filed for that purpose, were allowed to deduct from the judgment the amount received from the shipowner by the insured, though the underwriters might have availed themselves of such recovery upon the bill of lading as a defense to the suit upon the policy. Atlantic Ins. Co. v. Storrow, 1 Edw. Ch. (N. Y.) 621. But see Georgia Ins. & Trust Co. v. Dawson, 2 Gill (Md.) 365. XX. RISK AND CAUSE OF LOSS-FIRE AND CASUALTY INSURANCE. 1. Place and cause of loss and excepted risks. (a) Place and circumstances of loss. (b) What constitutes a fire. (c) Negligence of insured. (d) Willful destruction of property by insured. (e) Matters subsequent to fire. (f) Risks specially excepted. (g) Same-Explosions. (h) Same-Fall of building. (i) Casualty insurance in general. (j) Insurance against flood, storm, or lightning. 2. Pleading and practice in relation to risk and cause of loss. (a) Pleading and burden of proof. (b) Admissibility of evidence. (c) Sufficiency of evidence. (d) Instructions. (e) Trial and review. 1. PLACE AND CAUSE OF LOSS AND EXCEPTED RISKS. (a) Place and circumstances of loss. (b) What constitutes a fire. (c) Negligence of insured. (d) Willful destruction of property by insured. (e) Matters subsequent to fire. (f) Risks specially excepted. (g) Same-Explosions. (h) Same-Fall of building. (i) Casualty insurance in general. ) Insurance against flood, storm, or lightning. (a) Place and circumstances of loss. It is a well-settled rule that there can be no recovery for the loss of property insured at a specified place if it is destroyed at a totally different place. The theory of the rule is that by the terms of the policy the location of the property is an essential element of the risk assumed. Whether location is an element depends, of course, on the wording of the contract. If the property is insured "while contained in" a certain building, the location of the property must |