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§ 1499. An abandonment once made and accepted is irrevocable, unless the ground upon which it was "^5^"®" made proves to be unfounded.

2 Levi Com. L., 166; 2 Pars. Mar. L., 413.

S 1500. On an accepted abandonment of a sbip, Freightage, * 1 ^ how affectfreightage earned previous to the loss belongs to the £onmenlTof insurer thereof -T but freightage subsequently earned, ,hlpbelongs to the insurer of the ship.

United States Ins. Co. v. Lenox, 1 Johns. Cos., 377; see
Stewart v. Greenock Ins. Co., 2 II. of L. Cos., 159.

§ 1501. If an insurer refuses to accept a valid aban- Refusal to

accept,

donment, he is liable as upon an actual total loss, deducting from the amount any proceeds of the tbiug insured which may have come to the hands of the insured.

Church v. Bedient, 1 Cat. Cos., 21.

S 1502. If a persou iusured omits to abandon, he omu«ion

, , , . , , toabandoa

may nevertheless recover his actual loss.

bujdam v. Marine Ins. Co., 2 Johns., 138; Earl v Shaw,
1 Johns. Cos., 313.

ARTICLE IX.

MEASUBE OF INDEMNITY.

Section 1S03. Valuation, when conclusive.

1504. Partial loss.

1505. Profits.

1506. Valuation apportioned.

1507. Valuation applied to profits.

3508. Estimating loss under an open policy.

1509. Arrival of thing damaged.

1510. Labor and expenses.

1511. General average.

1512. Contribution.

1513. One-third new for old.

§ 1503. A valuation in a policy of marine insur- valuation ance is conclusive between the parties thereto,1 111 elusive, the adjustment of either a partial or total loss,2 if the insured has some interest at risk, and there is no fraud on his part; except that when a thing has been hypothecated by bottomry or respondentia, before its iusurauce, and without the knowledge of the person

Partial 1

Profits.

Valuation apportioned.

Val nation applied to profit*.

Estimating loss under an open policy.

actually procuring the insurance, he may show the real value. But a valuation fraudulent in fact entitles the insurer to rescind the contract.

1 Irving v. Manning, 1 H. of L. Cos., 287; 6 C. R, 391; Whitney v. Amer. Ins. Co., 3 Cow., 210; Kane r. Commercial Ins. Co., 8 Johns., 229; Davy v. Hallett, 3 Cat., 16.

1 3 Kent Com., 274; 2 Pars. Mar. 68.

§ 1504. A marine insurer is liable, upon a partial loss, only for such proportion of the amount insured by him, as the loss bears to the value of the whole interest of the insured in the property insured.

2 ArnoiMs Ins., § 358; Clark t. United M & F. Ins. Co., 7 Mass., 365.

§ 1505. Where profits are separately insured in a contract of marine insurance, the insured is entitled to recover, in case of loss, a proportion of such profits equivalent to the proportion which the value of the property lost bears to the value of the whole.

Loomis v. Shaw, 2 Johns. Cos., 36; see Abbott v. Sebor, 3 id., 39.

§ 1506. In case of a valued policy of marine insurance on freightage or cargo, if a part only of the subject is exposed to risk, the valuation applies only in proportion to such part.

3 Kent Com., 276.

§ 1507. When profits are valued and insured, by a contract of marine insurance, a loss of them is conclusively presumed from a loss of the property out of which they were expected to arise, and the valuation fixes their amount.

Patapsco Ins. Co. v. Coulter, 3 Peters, 222; 2 Pan. Mar.
L., 70, n. 4; Abbott v. Sebor, 3 Johns. Cos., 39.

S 1508. In estimating a loss under an open policy of marine insurance, the following rules are to be observed:

1. The value of a ship is its value at the beginning of the risk, including all articles or charges which add to its permanent value, or which are necessary to prepare it for the voyage insured;'

2. The value of cargo is its actual cost to the insured,1 when laden on board, or where that cost cannot be.ascertained, its market value* at the time and place of lading, adding the charges incurred in purchasing and placing it on board,1 but without reference to any losses incurred in raising money for its purchase,4 or to any drawback on its exportation,5 or to the fluctuations of the market at the port of destination, or to expenses incurred on the way, or on arrival ;6

3. The value of freightage is the gross freightage, exclusive of primage, without reference to the cost of earning it ;7 and,

4. The cost of insurance is in each case to be added to the value thus estimated.8

1 2 Pars. Mar. L., 70; Kemble v. Bowne, 1 Cai., 75; and
see 2 Arnould's Ins., 1339; Stevens v. Columbian
Ins. Co., 3 Cai., 43.

* 3 Kent Com., 335, 336; Gahn v. Broome, 1 Johns. Cos.,

120; Story v. United Ins. Co., 7 Johns., 343. But
if this rule had not been Bo long established, its
justice might be questioned (see Coffin v. Newbury-
port Ins. Co., 9 Mass., 436).

* See Leroy v. United Ins. Co., 1 Johns., 343; Stevens v.

Columbian Ins. Co., 3 Oat., 43.
Ogden v. Columbian Ins. Co., 10 Johns., 273.

* Gahn v. Broome, 1 Johns. Cos., 120; Suydam v. Marine

Ins. Co., 1 Johns., 181; Mintum v. Columbian Ins.

Co., 10 Johns., 76.
Lawrence v. N. T. Ins. Co., 3 Johns. Cos., 217.
'Stevens v. Columbian Ins. Co., 3 Cat., 43.
'Ogden v. Columbian Ins. Co., 10 Johns., 273; Minturn

v. The same, id., 75.

<$ 1509. If cargo insured against partial loss arrives Arrival of at the port of destination in a damaged condition, damped, the loss of the insured is deemed to be the same proportion of the value, which the market price at that port of the thing so damaged, bears to the market price it would have brought if sound.

3 Kent's Com., 336; Lawrence v. N. T. Ins. Co., 3 Johns.
Cos., 217; Johnstone v. Sheddon, 2 East, 681.

<$ 1510. A marine insurer is liable for all the expense Labor and attendant upon a loss which forces the ship into port expenBe>to be repaired; and where it is agreed that the insured may labor for the recovery of the property, the insurer is liable for the expense incurred thereby -t such expense, in either case, being in addition to a total loss if that afterwards occurs.

3 Kent's Com., 339; Watson v. Marine Ins. Co., 7 Ak, 57; Jurael v. Marine Ina. Co., id., 412; Bordes v. Hallet, 1 Cat., 444; Barker v. Phoenix Ins. Co., 8 Johns., 397.

avenge1 $ 1511. A marine insurer is liable for a loss falling upon the insured, through a contribution in respect to the thing insured, required to be made by him towards a general average loss called for by a peril insured against.

oontribu- g 1512. "Where a person insured by a contract of marine insurance has a demand against others for contribution, he may claim the whole loss from the insurer, subrogating him to his own right to contribution.

Jumel v. Marine Ius. Co., 7 Johns., 412; Maggrath v.
Church, 1 Cat., 196.

n?w foi"1 5 1513- In tue case of a partial loss of a ship or its equipments, the old materials are to be applied towards payment for the new,1 and whether the ship is new or old,2 a marine iusurer is liable for only twothirds of the remaining cost of the repairs, except that he must pay for anchors and cannon in full, and for sheathing metal at a depreciation of only two and one-half per cent for each mpnth that it has been fastened to the ship.3

1 Byrnes v. National Ins. Co., 1 Cow., 2C5.
* Id.; Dunham v. Commercial Ins. Co., 11 Johns., 318.
'This is the usage in New York.

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CHAPTER III.

FIRE INSURANCE.

Section 1514. False representation.

1515. Alteration increasing risk.

1516. Alteration not increasing risk.

1517. Acts of the insured.

1518. Measure of indemnity.

JentatioETM" S 1514. An insurance against fire is not affected by concealment, nor by the falsity of a representa

tion not inserted in the policy, though in a material particular, unless made with a fraudulent intent.

See Burritt v. Saratoga Mut. Fire Ins. Co., 5 Bill, 588

§ 1515. An alteration in the use or condition of a Alteration thing insured, from that to which it is limited by the policy, made without the consent of the insurer, by means within the control of the insured, and increasing the risk, entitles an insurer to rescind a contract of fire insurance.

Ang. Ins., 206.

<$ 1516. An alteration in the use or condition of a Alteration thing insured, from that to which it is limited by the policy, which does not increase the risk, does not affect a contract of fire insurance.

lb.; see Stokes v. Cox, 1 B.&K, 533; Barrett v. Jermy,
3 Exch., 635; Pim v. Reid, 6 M. db G., 1.

<S 1517. A contract of fire insurance is not affected Acts of u.«

Insured*

by any act of the insured, subsequent to the execution
of the policy, which does not violate its provisions,
even though it increases the risk,1 and is the cause
of a loss.*

'Stebbins v. Globe Ins. Co., 2 BaU, 632; Billings v. Tol-
land Co. Ins. Co., 20 Conn., 139; seeO'Neil v. Buffalo
Ins. Co., 3 N. 7., 122.

'Young v. Washington Co. Mut. Ins. Co., 14 Barb., 645;
see Gates v. Madison Co. Ins. Co., 5 N. Y., 469.

S 1518. If there is no valuation in the policy, the Measure of

** * Indemnity.

measure of indemnity in an insurance against fire is the expense, at the time that the loss is payable, of replacing the thing lost or injured in the condition in which it was at the time of the injury ;l but the effect of a valuation in a policy of fire insurance is the same as in a policy of marine insurance.2

1 See Niblo v. North Am. Ins. Co., 1 Sandf., 551.

* By the present law a valuation in a fire policy, as well as in a marine iusurance, is conclusive (Harris v. Eagle Ins. Co., 5 Johns., 368; Holmes v. Charlestown Ins. Co., 10 Mete, 211). Though this rule has been sometimes disapproved, the commissioners have not thought it best to propose a change.

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