be a valuation of a return or intermediate cargo substituted for the whole outward cargo by purchase.1

In general, a valuation of the whole subject-matter, will be held to be a valuation of the insured's whole interest in it, including the premium paid by him; but the contrary may be expressed or shown by the terms of the policy.2

sured against with those one hundred on board; can it be contended that the assured shall recover to the full amount of the valuation, that is, for the whole five hundred, when he has lost only one hundred?" Per Lord Ellenborough, C. J.; Forbes v. Aspinall, 13 East, 323. See Rickman v. Carstairs, 5 B. & Ad. 651; Haven v. Gray, 12 Mass. 71, 76, per Parker, C. J.; Wolcott v. Eagle Ins. Co., 4 Pick. 429; Clark v. Ocean Ins. Co., 16 Pick. 289, 295; Whitney v. American Ins. Co., 3 Cow. 210; Brooke v. La. State Ins. Co., 16 Mart. La. 640, 681.

1 Haven v. Gray, 12 Mass. 71. In this case, an insurance was effected for $11,000, "upon one hundred bales of Louisiana cotton, valued at ninety-four dollars each, and twenty-five tons of logwood, valued at eighty dollars per ton," out and home. Held that the valuation would apply to a return cargo, provided and advanced by the consignees of the outward cargo, in consideration of the assignment and on the account and credit of the assured. Where, however, there was an insurance of $12,000 upon the cargo of a vessel out and home, and the policy contained a memorandum at the bottom, by which it was declared that the insurance was "on flour, dry goods, wine, and provisions, etc. etc., valued at $12,000," Mr. Justice Washington held, on the ground that the valuation should be restricted to the articles enumerated, that the outward cargo alone was valued. M'Kim v. Phoenix Ins. Co., 2 Wash. C. C. 89. This is in all cases a question of construction; of the intent and meaning of the parties as oxpressed upon the face of the policy. Very slight circumstances would show that a valuation should be confined to the outward cargo; as, for instance, that the valuation, as in M'Kim v. Phoenix Ins. Co., is contained in a memorandum apart from the policy. Where the insurance is effected upon the cargo of a vessel out and home, and the valuation is applied generally to such cargo, there is no difficulty in applying such valuation to a return cargo. Whitney v. American Ins. Co., 3 Cow. 210, affirmed on error 5 Cow. 712.

2 Brooks v. Oriental Ins. Co., 7 Pick. 259. This was a case of a valued policy upon a ship, by which the insurer was not to be liable for a partial loss unless it should amount to five per cent. It was held, that the percentage should be reckoned upon the valuation after deducting the premium. In Mayo v. Maine Fire & Mar. Ins. Co., 12 Mass. 259, an insurance was effected for $9,000 on a ship, at a premium of fortyfive per cent. The vessel was valued at $18,000, which was its real value. The assured owned only one third of the vessel. Held, that the premium was not included in the valuation, but should be added to the interest of the assured in determining the amount of his insurable interest under the policy. The assured recovered the whole amount insured. There seems to be no good reason for disputing the authority of this case. Where the subject is insured in gross, at a round sum, and the assured owns the entire subject or interest valued, there is, no doubt, a very strong presumption that the premium is included in the valuation. Such, in the absence of opposing indications, is the rule of law. Where, however, the assured owns only a part of the subject insured, the whole of which is valued, the presumption would seem to be the

Some of the early authorities were quite strong in restricting the valuation to a case of total loss, opening the policy in the adjustment of a partial loss;1 nor is the contrary doctrine absolutely settled yet. Sometimes it might be difficult to apply the valuation in such a case, but weighty opinions and decisions, and the strongest reasons lead to the conclusion that a bona fide valuation should be applied, if possible, to the adjustment of partial losses. In a future chapter we shall consider the question whether a valuation can be set aside in case of a technical total loss.3

other way. In Mayo v. Maine F. & Mar. Ins. Co., if the premium must be supposed to be included in the valuation at $18,000, it should, in order that justice may be done to the assured, be, not the premium upon the $9,000 insured, but the premium upon the entire insurable interest. Circumstances, clearly admissible in evidence, showed that this was not the case. Mr. Benecke says, p. 159, London. Ed., Benecke & Stevens, Phillips Ed. 54, that where the foreign coin in which the invoice value is expressed, is valued at so much in the coin of the place where the insurance is effected, the premium, in the absence of express stipulation, would be held to be included, "because fixing the value of the coin is in fact a valuation of the goods." This, however, is not quite correct. See Ogden v. Columbian Ins. Co., 10 Johns. 273. Where coffee insured was valued at twenty-five cents per pound, the loss was adjusted by adding the premium to the valuation. Minturn v. Columbian Ins. Co., 10

Johns. 75.

1 In Shawe v. Felton, 2 East, 109, 113, the counsel, in arguing, cited the case of Le Cras v. Hughes, E. 22 Geo. 3, in which Lord Mansfield is reported to have said: "The constant usage since the stat. 19 Geo. 2, in a case of a total loss, has been to let the valuation stand, and the parties are estopped from altering it; but an average loss opens the policy. I will give you the origin of this custom: it was in a case of Erasmus v. Banks, Mich. 21 Geo. 2., where Lord C. J. Lee said: 'Valuation at the sum insured is an estoppel in case of a total loss, but not so in case of an average loss only.' On the 13th December, 1747, the same point came before the court in Smith v. Flexney, and was so determined." See also, Clark v. Unit. F. & M. Ins. Co., 7 Mass. 365, in which case Sewall, J., said: "The rule is however fixed and established by usages for a long time recognized, and by several judicial decisions, and is upon these considerations reasonable and satisfactory, that stipulations of value, when they are questioned and disputable, are to be disregarded in cases of partial and average losses."

2 In Lewis v. Rucker, 2 Burr. 1167, a cargo of sugar was valued at thirty pounds per hogshead. A loss of about seventeen per cent. occurred. It was held by Lord Mansfield that the underwriters should pay seventeen per cent. of the agreed value. See also, the late case of Irving v. Manning, 1 H. L. Cas. 287, 6 C. B. 391, 419; Tunno v. Edwards, 12 East, 488; Usher v. Noble, id. 639, 646; Goldsmid v. Gillies, 4 Taunt. 803; Forbes v. Aspinall, 13 East, 323, 327; Harris v. Eagle F. Ins. Co. of N. Y., 5 Johns. 368; Brooke v. La. State Ins. Co., 16 Mart. La. 640, 648; Stevens & Benecke on Av., Phillips Ed. 1, 48.

3 See post, Chapter on Abandonment.

The ship is very often valued; and the freight frequently, though the bills of lading generally would determine this amount very precisely; and the value of goods is so easily ascertained by the invoices and bills, that they are less frequently valued in the policy.

Where freight is valued, the valuation is presumed to apply to the freight of a full cargo, and, if a part only be at risk, it applies only pro rata. If the freight be insured on time, or for a voyage consisting of distinct parts, each earning freight, the expressions and the circumstances as showing the intentions of the parties, must determine whether the valuation be of the whole freight to be earned in the whole time or the whole voyage, or whether it applies to each successive freight of an intermediate passage.2

An insurance is sometimes effected in fact on profits by a valuation of the goods which shall include profits; and sometimes

1 Forbes v. Aspinall, 13 East, 323; Wolcott v. Eagle Ins. Co., 4 Pick. 429. 2 We have already considered the question in our first volume, when different voyages are mentioned in a commercial instrument, the question whether they are distinct or not. See ante, Vol. I. p. 259, n. 1. The principles there laid down apply equally, we think, to the contract of insurance. And the general rule must be that an insurance to A, thence to B, and thence back to A, on. freight valued at a certain amount, constitutes but one voyage, and that if freight is earned on the voyage from A to B, this will go as salvage to the underwriters on a loss occurring on the homeward voyage. The entirety of the voyage is shown by the class of cases, which we shall consider hereafter, where it is held that on a risk consisting of successive voyages, the contract is an entirety, and if the vessel is lost on the outward voyage, the whole freight is due. See Meech v. Philadelphia Fire & Inland Ins. Co., 3 Whart. 473; Adams v. Penn. Ins. Co., 1 Rawle, 97. Emerigon assumes this to be the general rule when he says: "The assured who has taken freights during the course of his trading voyage, is presumed to have taken them for himself, if the vessel arrive safe, and to have received them for account of the insurers, if disaster render abandonment necessary." Emerigon, c. xvii. § 9, Meredith's Ed. 708.

The principal exception to this rule is where the premium is double, in which case it has been held that the voyages are distinct. Davy v. Hallett, 3 Caines, 16; Hugg v. Augusta Ins. & Banking Co., 7 How. 595. In Patapsco Ins. Co. v. Biscoe, 7 Gill & J. 293, the premium was single, and the freight earned on the outer voyage was but half the amount of the valuation, and freight to the amount of the other half would have been earned on the return voyage, but the court held that the insured were entitled to recover the whole amount of the valuation without deducting the freight earned on the outward voyage. We are clearly of the opinion that this case extends the rule much further than it is authorized by principle and authority. In Wolcott v. Eagle Ins. Co., 4 Pick. 429, there was no freight earned on the outward voyage, and this question did not arise. See also Hughes v. Union Ins. Co., 8 Wheat. 294.

Some of the early authorities were quite strong in restricting the valuation to a case of total loss, opening the policy in the adjustment of a partial loss;1 nor is the contrary doctrine absolutely settled yet. Sometimes it might be difficult to apply the valuation in such a case, but weighty opinions and decisions, and the strongest reasons lead to the conclusion that a bona fide valuation should be applied, if possible, to the adjustment of partial losses. In a future chapter we shall consider the question whether a valuation can be set aside in case of a technical total loss.3

other way. In Mayo v. Maine F. & Mar. Ins. Co., if the premium must be supposed to be included in the valuation at $18,000, it should, in order that justice may be done to the assured, be, not the premium upon the $9,000 insured, but the premium upon the entire insurable interest. Circumstances, clearly admissible in evidence, showed that this was not the case. Mr. Benecke says, p. 159, London. Ed., Benecke & Stevens, Phillips Ed. 54, that where the foreign coin in which the invoice value is expressed, is valued at so much in the coin of the place where the insurance is effected, the premium, in the absence of express stipulation, would be held to be included, "because fixing the value of the coin is in fact a valuation of the goods." This, however, is not quite correct. See Ogden v. Columbian Ins. Co., 10 Johns. 273. Where coffee insured was valued at twenty-five cents per pound, the loss was adjusted by adding the premium to the valuation. Minturn v. Columbian Ins. Co., 10

Johns. 75.

1 In Shawe v. Felton, 2 East, 109, 113, the counsel, in arguing, cited the case of Le Cras v. Hughes, E. 22 Geo. 3, in which Lord Mansfield is reported to have said: "The constant usage since the stat. 19 Geo. 2, in a case of a total loss, has been to let the valuation stand, and the parties are estopped from altering it; but an average loss opens the policy. I will give you the origin of this custom: it was in a case of Erasmus v. Banks, Mich. 21 Geo. 2., where Lord C. J. Lee said: Valuation at the sum insured is an estoppel in case of a total loss, but not so in case of an average loss only.' On the 13th December, 1747, the same point came before the court in Smith v. Flexney, and was so determined." See also, Clark v. Unit. F. & M. Ins. Co., 7 Mass. 365, in which case Sewall, J., said: "The rule is however fixed and established by usages for a long time recognized, and by several judicial decisions, and is upon these considerations reasonable and satisfactory, that stipulations of value, when they are questioned and disputable, are to be disregarded in cases of partial and average losses."

2 In Lewis v. Rucker, 2 Burr. 1167, a cargo of sugar was valued at thirty pounds per hogshead. A loss of about seventeen per cent. occurred. It was held by Lord Mansfield that the underwriters should pay seventeen per cent. of the agreed value. See also, the late case of Irving v. Manning, 1 H. L. Cas. 287, 6 C. B. 391, 419; Tunno v. Edwards, 12 East, 488; Usher v. Noble, id. 639, 646; Goldsmid v. Gillies, 4 Taunt. 803; Forbes v. Aspinall, 13 East, 323, 327; Harris v. Eagle F. Ins. Co. of N. Y., 5 Johns. 368; Brooke v. La. State Ins. Co., 16 Mart. La. 640, 648; Stevens & Benecke on Av., Phillips Ed. 1, 48.

3 See post, Chapter on Abandonment.

The ship is very often valued; and the freight frequently, though the bills of lading generally would determine this amount very precisely; and the value of goods is so easily ascertained by the invoices and bills, that they are less frequently valued in the policy.

Where freight is valued, the valuation is presumed to apply to the freight of a full cargo, and, if a part only be at risk, it applies only pro rata. If the freight be insured on time, or for a voyage consisting of distinct parts, each earning freight, the expressions and the circumstances as showing the intentions of the parties, must determine whether the valuation be of the whole freight to be earned in the whole time or the whole voyage, or whether it applies to each successive freight of an intermediate passage.2

An insurance is sometimes effected in fact on profits by a valuation of the goods which shall include profits; and sometimes

1 Forbes v. Aspinall, 13 East, 323; Wolcott v. Eagle Ins. Co., 4 Pick. 429. 2 We have already considered the question in our first volume, when different voyages are mentioned in a commercial instrument, the question whether they are distinct or not. See ante, Vol. I. p. 259, n. 1. The principles there laid down apply equally, we think, to the contract of insurance. And the general rule must be that an insurance to A, thence to B, and thence back to A, on. freight valued at a certain amount, constitutes but one voyage, and that if freight is earned on the voyage from A to B, this will go as salvage to the underwriters on a loss occurring on the homeward voyage. The entirety of the voyage is shown by the class of cases, which we shall consider hereafter, where it is held that on a risk consisting of successive voyages, the contract is an entirety, and if the vessel is lost on the outward voyage, the whole freight is due. See Meech v. Philadelphia Fire & Inland Ins. Co., 3 Whart. 473; Adams v. Penn. Ins. Co., 1 Rawle, 97. Emerigon assumes this to be the general rule when he says: "The assured who has taken freights during the course of his trading voyage, is presumed to have taken them for himself, if the vessel arrive safe, and to have received them for account of the insurers, if disaster render abandonment necessary." Emerigon, c. xvii. § 9, Meredith's Ed. 708.

The principal exception to this rule is where the premium is double, in which case it has been held that the voyages are distinct. Davy v. Hallett, 3 Caines, 16; Hugg v. Augusta Ins. & Banking Co., 7 How. 595. In Patapsco Ins. Co. v. Biscoe, 7 Gill & J. 293, the premium was single, and the freight earned on the outer voyage was but half the amount of the valuation, and freight to the amount of the other half would have been earned on the return voyage, but the court held that the insured were entitled to recover the whole amount of the valuation without deducting the freight earned on the outward voyage. We are clearly of the opinion that this case extends the rule much further than it is authorized by principle and authority. In Wolcott v. Eagle Ins. Co., 4 Pick. 429, there was no freight earned on the outward voyage, and this question did not arise. See also Hughes v. Union Ins. Co., 8 Wheat. 294.