What constitutes a claim of general average has been fully considered in the chapter on contracts of shipping. But this claim may be placed among the risks against which insurance is made, because if the property insured be itself uninjured, but owes its safety to the sacrifice of other property for which it makes contribution by way of general average, this contribution is unquestionably a loss within the policy.

So if insurers pay for a loss on the sacrificed property, they

(k) Levy v. Merrill, 4 Greenl. 180; Lee v. Boardman, 8 Mass. 238; Rhinelander v. Ins. Co. of Penn. 4 Cranch, 29; Powell v. Hyde, 6 Ellis & B. 607; Olivera v. Union Ins. Co. 3 Wheat. 183; Rotch v. Edie, 6T.R 413; Odlin v. Ins. Co. of Penn. 2 Wash. C. C. 312; Ogden v. N. Y. Ins. Co. 10 Johns. 177.

(l) Emerigon, Meredith ed. 420; Powell v. Hide, 6 Ellis & B. 607; Black v. Marine Ins. Co. 11 Johns. 287.

(m) See Olivera v. Union Ins. Co. 3 Wheat. 188; Green v. Young, 2 Salk.

444; Mumford v. Phoenix Ins. Co. 7 Johns. 440.

(n) Rotch v. Edie, 6 T. R. 418.

(o) Olivera v. Union Ins. Co. 8 Wheat. 183; Wilson v. United Ins. Co. 14 Johns. 227; Richardson v. Maine Ins. Co. 6 Mass. 102.

(p) 1 Magens, 67.

(q) Simpson v. Charleston Ins. Co. Dudley, S. C. 230; Nesbitt v. Lushington, 4 T. R. 783.

(r) Williams v. Suffolk Ins. Co. 3 Sumner, 270,18 Pet. 415.

1 If a policy excepts capture and seizure, and the vessel is seized in smuggling goods into a foreign port because of the master's barratry, the loss is due to the seizure, and not to the barratry, and the insurer is not liable for expenses incurred in recovering the vessel. Cory v. Burr, 8 Q. B. D. 313; 9 Q. B. D. 463.

2 Or a siege. Rodocanachi v. Elliott, L. R. 8 C. P. 649: 9 C. P. 518.

acquire by this payment all the right which the owner of the property sacrificed has to claim contribution. Usually, in practice, the insured whose property is sacrificed, claims and receives the contribution to which he is entitled, and then claims of the insurers only the balance. But it seems now to be settled, that the insured may claim of the insurers his whole loss by sacrifice, and transfer to them his claim for contribution; and the right to do this might be important to the insured, if the contributors were insolvent or inaccessible. (s)

Insurers are liable for a general average, when they insure against that peril or loss to avert which the sacrifice was made; for a loss by contribution is regarded as a loss by that very * peril. Thus, if a cargo be insured with the exception of war risks, and the ship and cargo are captured and liberated by expense or payment, the cargo pays its share; but the insurers are not liable, because the loss thus sustained is a loss by the excepted war risk. So it would be if the contribution were for a loss caused by fire, or any other risk, and this were an excepted risk.

In the section upon total loss, we shall see, that in this country a loss of more than fifty per cent, of value makes a constructive total loss. If the insured loses by a sacrifice more than fifty per cent., and has a claim for contribution which would reduce his loss below fifty per cent., he may still make this a constructive total loss, transferring to the insurers by abandonment his claim for contribution. (t)

These rules would not apply to an insured who owned the property lost, and also other property, which, because saved, must contribute to himself for the loss, for he must first allow for this contribution from himself, and claim of the insured only for the balance. (u)