On the other hand, the English courts hold that the liability of the insurer must be settled by the terms of the contract between him and his insured, that he is liable only for that part of the salvage represented by the valuation named in such contract, and that to make him pay the entire amount would be to let the insured collect out of his policy on an interest which he, the insured, had purposely left uncovered and on which he had paid no premium." SAME SUBROGATION OF INSURER 40. An insurer who has paid the insurance is subrogated to the rights of the insured against others liable to the insured for the loss. The insured is entitled to recover his loss from the underwriter, though he may possess other remedies for it. For instance, if he can recover back part of the loss in general average, the underwriter must still pay him, and look to the collection of the average himself, and not force the insured to exhaust his remedies on general average." But, when the underwriter has paid the loss, he is entitled by subrogation to all the rights of the insured against any other parties for the recovery of all or part of what he has paid. In such case, he stands in the shoes of the assured, and has no greater rights than the assured himself would have, so that if the assured has stipulated away his right by any enforceable clause in a bill of lading or otherwise, the underwriter cannot recover. This right of subro 37 Balmoral S. S. Co. v. Marten, [1900] 2 Q. B. 748; [1901] 2 K. B. 896; [1902] A. C. 511. It is noteworthy that the English judges all agreed, including Bigham in the trial court, A. L. Smith, Vaughan, and Stirling in the Court of Appeal, and Lords Macnaghten, Shand, Brampton, Robertson, and Lindley in the House of Lords. To the author the argument seems all in favor of their view. § 40. 88 International Nav. Co. v. British & Foreign Marine Ins. Co. (D. C.) 100 Fed. 304. gation springs, not necessarily from assignment, but from the general principles of equity.3° SAME-SUING AND LABORING CLAUSE 41. In addition to the amount of his loss, the insured may recover, under the suing and laboring clause of the policy, expenses incurred by him in protecting the property. In the old English policy this clause was in the following language: "And in case of any loss or misfortune it shall be lawful to the assured, their factors, servants, and assigns, to sue, labor and travel for, in, and about the defense, safeguard, and recovery of the said goods and merchandise, and ship," etc., "or any part thereof, without prejudice to this insurance." In later policies the clause has been modified largely in the interests of the underwriter, but the general language is the same. This clause is intended, in mutual interest, to encourage the assured to do everything towards making the loss as light as possible; and the expenses thereby incurred are recoverable outside of the other clauses of the policy, though in some instances it enables the assured to recover more than the face value of the policy. In other words, the assured may recover a certain amount under that clause of the policy giving him the right to recover for loss caused by the perils of the sea, etc., and this additional amount as expended for the general benefit, and this, too, often in policies insuring against total loss only. And, 89 See, as illustrating the extent of this doctrine, Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469, 32 L Ed. 788; Mobile & M. Ry. Co. v. Jurey, 111 U. S. 584, 4 Sup. Ct. 566, 28 L. Ed. 527; Wager v. Providence Ins. Co., 150 U. S. 99, 14 Sup. Ct. 55, 37 L. Ed. 1013; Fairgrieve v. Marine Ins. Co., 37 C. C. A. 190, 94 Fed. 686; Hall v. Nashville & C. R. Co., 13 Wall. 367, 20 L Ed. 594. since an abandonment under the American decisions relates back, the underwriters are liable for the acts of the master after abandonment, as he is then their agent.40 The acts of the insurer or the underwriter, in sending and making efforts to save, cannot be construed as an acceptance of the abandonment.41 The clause does not cover legal expenses incurred in defending the ship against an unsuccessful attempt to hold her liable for damages in the collision out of which the loss arose.* 42 This clause, however, only covers such acts of the underwriter as are authorized by the policy. If the underwriter takes the vessel to repair her, intending to return her, and keeps her an unreasonable time, and then returns her, not in as good condition as she was before, the suing and laboring clause will not protect him, and his acts in so doing, being unauthorized by the suing and laboring clause, will be held an acceptance of the notice of abandonment." 8 41. 40 Gilchrist v. Chicago Ins. Co., 104 Fed. 566, 44 C. C. A. 43. 41 RICHELIEU & O. NAV. CO. v. BOSTON MARINE INS. CO., 136 U. S. 408, 10 Sup. Ct. 934, 34 L. Ed. 398. 42 Munson v. Standard Marine Ins. Co., 156 Fed. 44, 84 C. C. A. 210. 43 Washburn & M. Mfg. Co. v. Reliance M. Ins. Co., 179 U. S. 1, 21 Sup. Ct. 1, 45 L. Ed. 49; Copelin v. Phoenix Ins. Co., 9 Wall. 461, 19 L. Ed. 739. CHAPTER IV OF BOTTOMRY AND RESPONDENTIA; AND LIENS FOR SUPPLIES, REPAIRS, AND OTHER NECESSARIES 48. 49. 50. 51. 52. "Necessaries" Defined. Necessaries Furnished Domestic Vessels. Domestic Liens as Affected by Owner's Presence. Vessels Affected by State Statutes. "BOTTOMRY" DEFINED 42. This is an obligation executed generally in a foreign port by the master of a vessel for repayment of advances to supply the necessities of the ship, together with such interest as may be agreed upon, which bond creates a lien on the ship enforceable in admiralty in case of her safe arrival at the port of destination, but becoming absolutely void and of no effect in case of her loss before arrival.1 This is an express lien created by act of the parties. The Admiralty Lien Admiralty is not a difficult branch of the law, and the difficulties of this part arise not inherently, but from the confusion incident to the use of the word "lien." To the student of the common law its use suggests the ideas which our studies in that branch associate with it; and, even if § 42. 1 GRAPESHOT, 9 Wall, 129, 19 L. Ed. 651. there was such a production in those modern specialist times as an admiralty lawyer ignorant of all other law, the confusion would still exist to a lesser extent, since the word is used in different senses in marine law itself. The admiralty lien, pure and simple, is strikingly dissimilar from the common-law lien. Take a common-law mortgage as an illustration. There the title to the security is conditionally conveyed to the creditor and he has a property interest in it. Take, on the other hand, the hotel keeper who retains the trunks of his guests till they pay for their wine. The moment he relinquishes possession of the trunks he loses his security, for his lien depends on possession. In other words, the common-law liens give the creditor a qualified title or right of possession as security for a personal debt due by the owner and as incident to such a debt. The admiralty lien is different. Its holder has no right of possession in the ship. It exists as a demand against the ship itself as a contracting or wrongdoing thing, irrespective of the fact whether the creditor has any personal action against the owner or not. It is not a mere incident to a debt against the owner, but a right of action against the thing itself—a right to proceed in rem against the ship by name, in which the owner is ignored, may never appear, and appears, if at all, not as defendant, but as claimant. It is nearer what the civil law terms a "hypothecation"—a privilege to take and sell by judicial proceedings in order to satisfy your demand. This shows how little it has in common with the common-law lien.2 As said above, there are liens in admiralty law enforceable by admiralty process which yet are not admiralty liens. in the above sense. Such is the lien of the ship on the cargo for freight and demurrage, which is lost by delivery. It is to be regretted that the term was not limited to such cas 2 Pleroma (D. C.) 175 Fed. 639; Mayer's Admiralty Jur. & Pr. 55. |