voyage. In the case of missing vessels, it is said, the loss is presumed to have happened immediately after the date of the last news; so that if an insurance be for three months, and the vessel not being heard from, a farther insurance is made for a year, and the vessel is never heard from, in that case the first insurer pays the loss.

Bottomry is a loan upon the ship, for a premium; the lender being only entitled to the return of his money in the event of the ship's reaching port. Nothing short, says Phillips, of a total loss will discharge the borrower. The risk in this contract seems, therefore, to be considered the same that it is in a policy, free from average, or against total loss only.

The term average is one of familiar use with insurers, and deserves to be understood. It is general where the loss is voluntarily ineurred of a certain portion of the cargo, to save the rest; which with the ship, or the insurers contribute rateably to the loss. In this sense, general average is an indemnity due by property saved to the owners of such as may be presumed to have been lost in saving it. A common example is where goods have been thrown overboard, to lighten the ship, or a mast cut away to save her. In general average, the loss is made for the benefit of all; in particular average the loss is involuntary, and for the benefit of none. To this head belongs salvage; which admits of this explication: "If one person, at the expense or implied request of another, or with an authority for so doing, renders such other service, by bestowing his labor, or incurring expense on his account, he is entitled to compensation for his services and a reimbursement of his expenses. In some instances, the circumstances in which property is placed give any one authority to take charge of and save it; as where it has been lost, or is in eminent danger of being so." The allowance of salvage, according to Kent, depends frequently upon positive regulations, fixing the rate; though salvage is said to be a question of the jus gentium, and not a creature of local institutions, like the mariner's contract. The regulation of salvage, by the statute law of the United States is confined to cases of re-capture. In the case of shipwrecks, or derelicts at sea, and rescues, and most other cases, the law has not fixed any certain rate of salvage; and it is left to the discretion of the court of admiralty, under all the circumstances. The amount to be allowed, varies according to the labor and peril incurred by the salvors; the merit of their conduct; the value of the ship and cargo; and the degree of danger from which they were rescued. The courts are liberal in the amount of salvage in meritorious cases; as a reward for the service, and as an incentive to effort; and the allowance fluctuates between one-half, one-third, and one-fourth of the gross or net proceeds of the property saved; but one-third has been the most usual rate.

General average is alike due by the uninsured as by the insurer. "The occasions for general contribution, and the principles upon which it is made, are the same, whether the property is insured or not. The underwriters are only liable to pay the assured the proportion of the contribution assessed upon the amount insured, when the loss is occasioned by some of the perils insured against. But as general average losses usually arise from the perils insured against, in the common form of the policies, underwriters are usually liable tɔ

PARTIAL AND TOTAL LOSSES.

18

reimburse to the assured the part of the average contributed, by the amount insured in the policy. The principles of general average, therefore, become an essential part of the law of insurance."

The ship is never entitled to freight on jettison or things thrown overboard. Promise of extra wages to sailors, in perilous moments, cannot be made the subject of general average; though contributions to pirates and plunderers, to save the rest, may be. There is no average, however, due, unless the goods are effectually saved. . If, in consequence of some disaster, it becomes necessary for the safety of the ship and cargo, to put into a port out of the course of the voyage, to re-fit, it is universally held that more or less of the expense is to be defrayed by contribution." The expenses, also, attending the delay, and of prosecuting claim for vessel and cargo, in case of capture, is a proper subject of general average. The same is applicable to the detention of vessels by embargo. The party in jettison, or owner of goods sacrificed for general benefit, has his action against the insurers, and also against the other owners. The ship itself contributes in general average. It has been decided in Louisiana, Eustis, J., that slaves, on board of a vessel for transportation, are subject to contribution in general average. Goods on deck contribute, also, but if thrown over, are not contributed for. Gold, silver, jewelry, etc., contribute. In regard to bank-notes, it is doubtful. Parties may stipulate against contribution for general average. Where insurers repair and refit the ship, in consequence of injuries received by her, it is a common custom to exact from the insured onethird of the cost: he being supposed to be benefited to this extent, by the substitution, in repairs, of new material for old.

In the adjustment of partial losses, the value in the policy is relied upon; and if the merchandise be sold in the market to which they are sent for only half as much as sound goods would command, the underwriters are liable in half the amount of the value insured, or invoice value. Where goods are seriously damaged at sea, and it would be impossible for them to reach their destination without ruin, they may be landed at some other port and sold. "In such cases,' says Stephens, "though the property is not abandoned to the underwriters, the principle of abandonment is assumed and acted upon. The insurer pays the invoice price, and the loss is a salvage one."

Whenever the property insured is entirely gone from the assured, or to such an extent that it ceases longer to be of any value to him, for the purposes intended, he may elect to abandon, as it is technically called. An abandonment vests the whole right and interest of the insured fully and completely in the insurer, who becomes absolute owner, and responsible for the full value of the abandonment.

. Chancelor Kent, like Coke before him, indulges in a note, under the head of jettison, some of the poetry of classic times, which even law has not yet subdued in him. Emerigon, says he, has beautifully illustrated, from Juvenal, the growth and progress of an irregular jettison; and the imminent danger, and absorbing terror which justify it. At first, the skill of the pilot fails:

Nullum prudentia cani
Rectoris conferret opem.

Catullus becomes restless with terror, as the danger presses, and at last he cries:

The insured need not abandon, unless he chooses, in any case. If the voyage be entirely broken up by the perils insured against, he may abandon as for total loss.

The right of abandonment, said Mr. Justice Story, has been admitted to exist where there is a forcible dispossession, or ousting of the owner of the ship; as in cases of capture-where there is a moral restraint, or detention, which deprives the owner of the free use of the ship; as in case of embargoes, blockades, and arrests-where there is a present total loss of the physical possession, and use of the ship; as in case of submersion-where there is a total loss of the ship for the voyage; as in case of shipwreck, so that the ship cannot be repaired in the port where the disaster happens-and, lastly, where the injury is so extensive, that, by reason of it, the ship is useless, and the making repairs would exceed her value. The right to abandon exists whenever, from the circumstances of the case, the ship, for all useful purposes of a ship for the voyage, is, for the present, gone from the control of the owner.

There is no right of abandonment for injuries sustained, amounting to less than one-half the value, if those injuries can be repaired. An abandonment may be made, even for small injuries, if, without repair, they would be vital, and, if under the circumstances, the repair cannot be made. The rule which gives the right of abandonment for loss above half the value is an American one, and not admitted in England. The right of abandonment exists where it becomes impossible to reach the port of destination. Martin, J., laid down the rule in Louisiana: Policy on a cargo from here to Key West and Havana-gale interrupts voyage to first place-vessel reaches Havana, and cargo is sold: "The loss is a total one, because the intended voyage to Key West has been necessarily abandoned." 4 Martin, N. S. 66.

A separate valuation of articles in a policy, gives the right to abandon one, and retain another at will. When the right is complete, the abandonment must be made without delay. Forty-five, thirty-eight, thirty, nine, and in one case, even five days delay, after intelligence received of loss, has been held too late, where there was no satisfactory excuse. These last were English cases; and it is proper to remark, that the rule against delay is more severely construed than with us. No particular form of writing is needed in abandonment. It is sufficient that the statement be clearly made. It has been held in Louisiana, that a mere demand for total loss is an abandonment. It is not necessary that the insurer should accept the abandonment, to be bound by it; but if he does accept, he precludes all farther objections, and is held to have waived them. An abandonment once made cannot be revoked, without the insurer's consent; but he may consider certain acts to amount to revocation; and the courts will so consider them, viz.: where the insured commences repairs upon the ship, or sends her on another voyage, etc. After abandonment, the insured, or his agent, becomes the agent of the underwriters, and must act in all good faith toward them.

There are certain articles exempted in the policy from the risk of the insurers. These are known as memorandum articles, from the fact of their being expressed in the policy in the form of a memo

randum. Unless the loss be total upon these, the insurers are not liable. In English policies, the memorandum includes corn, fish, salt, flour, fruit, and sometimes tobacco and hides. Different policies in our country, vary in relation to these articles: some enlarging, and others contracting the list. A more detailed notice, under this head, is unnecessary; since it is a matter very much regulated by the disposition and customs of the parties. In general, memorandum articles embrace those which are of a perishable nature.

Sinall losses are almost always excepted from the liability of the underwriters, viz.: those under a certain per cent., according to usage, varying from five even to twenty per cent., on the whole amount at risk. Shippers have frequent occasion to be informed of this fact.

The proof of loss is thrown upon the insured, and it must be as complete as the nature of the case will admit. It is a not unusual custom, in some places, to stipulate that a demand shall not be made upon the insurer until a certain specified period after notice of loss.

The whole subject of insurance will again come up before us at an early day. We have briefly adverted to one of its divisions, viz. : Marine Insurance-Fire and Life Insurance will have interest enough for separate articles. In concluding, now, we must express our thanks to those companies and agents who have been kind enough to furnish us with information in reference to the general subject. Though we have not yet drawn upon it, the proper occasion will soon be presented for that purpose. In the mean while, we would request particular answers, if convenient, from all to whom we have addressed letters of inquiry.

Art. II.-THE MEXICAN WAR.

WE should do injustice to our own feelings, and we believe to those of a vast majority of our readers, if we failed to express our deep regret that it should have been found necessary to declare war against Mexico; that in this age of arbitrament and mutual concession, as well as of profound calculation of the cost of war to which the powers of Europe have been compelled to submit, the peace of the world should be interrupted by a quarrel for territory between the only two great independent republics of North America. We regret this the more, because such an occurrence is calculated to strengthen the prejudices elsewhere existing against our form of government, and to furnish additional force to the arguments of the monarchical party in Mexico. It is true that a very large majority of the Mexicans are republicans; but from the commencement of their revolution to the present day, there has existed among them a party uniting a great deal of wealth and intelligence, which has maintained the utter unfitness of republican institutions to restrain and govern an ignorant and turbulent people. From the downfall of Iturbide, to whose overthrow they contributed, to the present hour, this party has remained united and secretly plotting the de

struction of the democracy; and now emboldened by the state of the country, they have spoken out through their most active and efficient agent, Don Lucas Alaman. In his paper, called "The Times," he has repeatedly warned his fellow-citizens that Mexico possessed no other means of defense against the ambitious designs of a neighboring people, meaning the United States, than to call to the throne some European prince, and strengthen herself by such an alliance. Upon this avowal of his views he was driven from the capital by the indignation of the people; but his warning voice will have made a strong impression upon them. Hopes at that time were entertained of an amicable adjustment of the difficulties with this country, growing out of the annexation of Texas. The Mexicans, notwithstanding their vaunts and threats, were decided to abandon the territory they regarded as Texas proper, and were prepared to treat for that portion which we regarded as the true boundary. But they, the people, not the government only, were firmly decided not to mix up any less important question with what involved a matter touching their national honor. They regarded the entrance of our troops upon the disputed territory as an invasion of their soil, and unhesitatingly entered into a hopeless contest with a greatly superior power, rather than submit to what they regard as an insult to the dignity of the republic. There is something noble and chivalrous in this high resolve, which compels respect; and while we are in favor of adopting every measure of vigor, and putting forth all our strength to terminate the war as speedily as possible, and feel all the exultation of Americans at the gallant conduct and merited success of our brave army, we cannot forbear to express our fears that however feeble, the Mexicans will be found obstinate foes; and that the natural obstacles to be encountered, and the stubborn character of that people, are likely to protract this war beyond the period contemplated by our government. We somewhat doubt, too, the policy of attacking the northern provinces, which are strongly imbued with republican principles, and inclined to a strict alliance with the United States, while they are deeply outraged by the revolution so cruelly enforced upon them by Gen. Santa Anna, which deprived them of their federal representation and fastened a central government upon the country. Such is the feeling entertained by the people of those States toward the government of Mexico, that they would shake off a yoke so abhorrent to them if once assured of a friendly support. Such assurances might be tendered them, and if an invasion of Mexico is resolved upon, it may be best effected with well-disciplined troops and a well-appointed army, by the shortest and most direct route from Alvarado, along the plains to the gates of Mexico. The march of armies, the best-regulated and disciplined, through a populous country, leaves traces of violence and desolation, and lays the foundation of lasting animosities. We have traveled through the provinces north of the capital and know them to be thickly settled and populous for many hundred miles; and should lament to learn that so fair a territory had been laid waste by the passage of the most civilized troops,

However angry we may be with these people, our resentment is mingled with compassion. We ought always to bear in mind the point from whence they set out on their great experiment of self-gov