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8 2730. Freightage, how affected by abandonment of ship. On an accepted abandonment of a ship, freightage earned previous to the loss belongs to the insurer thereof; but freightage subsequently earned belongs to the insurer of the ship. En. March 21, 1872.

Abandonment of freightage: Ante, sec. 2717, subd. 4.

$ 2731. Refusal to accept. If an insurer refuses to accept a valid abandonment, he is liable as upon an actual total loss, deducting from the amount any proceeds of the thing insured which may have come to the hands of the insured. En. March 21, 1872.

Acceptance not presumed from silence: Ante, sec. 2727.

$ 2732. Omission to abandon. If a person insured omits to abandon, he may nevertheless recover his actual loss. En. March 21, 1872.

ARTICLE IX.

2736. $ 2737. $ 2738. $ 2739.

2740. $ 2741. $ 2742. $ 2743. $ 2744. $ 2745. $ 2746.

MEASURE OF INDEMNITY.
Valuation, when conclusive.
Partial loss.
Profits.
Valuation apportioned.
Valuation applied to profits.
Estimating loss under an open policy.
Arrival of thing damaged.
Labor and expenses.
General average.
Contribution.
One third new for old.

8 2736. Valuation, when conclusive. A valuation in a policy of marine insurance is conclusive between the parties thereto in the adjustment of either a partial or total loss, 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 insurance, and without the knowledge of the person actually procuring the insurance, he may show the real value. But a valuation fraudulent in fact entitles the insurer to rescind the contract. En. March 21, 1872.

Valued policies: See ante, sec. 2596.
Valued policy on freightage or cargo: See sec. 2739, infra.
Valuation of profits: See sec. 2740.
Valued policy of fire insurance: See post, sec. 2756.

8 2737. Partial loss. 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. En. March 21, 1872.

Compare with section 2756, stating the measure of indemnity in case of fire insurance.

§ 2738. Profits. 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. En. March 21, 1872.

See infra, sec. 2740.

8 2739. Valuation apportioned. 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. En. March 21, 1872.

$ 2740. Valuation applied to profits. 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. En. March 21, 1872.

Harmonizes with sec. 2738, ante.

$ 2741. Estimating loss under an open policy, In estiinating 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, 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, but without reference to any losses incurred in raising money for its purchase, or to any drawback on its exportation, or to the fluctuations of the market at the port of destination, or to expenses incurred on the way or on arrival;

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

4. The cost of insurance is in each case to be added to the value thus estimated. En. March 21, 1872.

Partial loss of ship: Post, sec. 2746.

$ 2742. Arrival of thing damaged. If cargo insured against partial loss arrives at the port of destination in a damaged condition, 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. En. March 21, 1872.

$ 2743. Labor and expenses. A marine insurer is liable for all the expense attendant upon a loss which forces the ship into port 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, such expense, in either case, being in addition to a total loss, if that afterwards occurs. En. March 21, 1872.

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8 2744. General average. 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. En. March 21, 1872.

General average generally: Ante, secs. 2152 et seq.

8 2745. Contribution. 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 bim to his own right to contribution. But no such claim can be made upon the insurer after the separation of the interests liable to contribution, nor when the insured, having the right and opportunity to enforce con. tribution from others, has neglected or waived the exercise of that right. En. March 21, 1872. Am'd, 1873-4, 259.

Subrogation of insurer: Ante, sec. 2724.

$ 2746. One third new for old. In the case of a partial loss of a ship or its equipments, the old materials are to he applied towards payment for the new, and whether the ship is new or old, a marine insurer is liable for only two thirds 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 month that it has been fastened to the ship. En. March 21, 1872.

Sale of wrecked or damaged vessels: See Pol. Code, sec. 2507.

CHAPTER III.

FIRE INSURANCE. 2752. False representations. (Repealed.)

2753. Alteration increasing risk. $ 2754. Alteration not increasing risk. § 2755. Acts of the insured. $ 2756. Measure of indemnity. $ 2757. Value of interest, how may be fixed. Total or partial lose

$ 2752. False representations. (Repealed.) En. March 21, 1872. Rep. 1873-4, 259.

$ 2753. Alteration increasing risk. An alteration in the use or condition of a 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. En. March 21, 1872.

Cal.Rep.Cit. 122, 599.

$ 2754. Alteration not increasing risk. An alteration in the use or condition of a thing insured from that to which it is limited by the policy, wbich does not increase the risk, does not affect a contract of fire insurance. En. March 21, 1872.

Cal.Rep.Cit. 122, 597; 122, 599; 122, 600.

$ 2755. Acts of the insured. A contract of fire insurance is not affected 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 and is the cause of a loss. En. March 21, 1872.

$ 2756. Measure of indemnity. If there is no valuation in the policy, the 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; but the effect of a valuation in a policy of fire insurance is the same as in a policy of marine insurance. En. March 21, 1872.

Valued policy in marine insurance: See ante, sec. 2736.

$ 2757. Value of interest, how may be fixed. Total or partial loss. Whenever the insured desires to have a valuation named in his policy, insuring any building or structure against fire, he may require such building or structure to be examined by the insurer and the value of the insured's interest therein shall be thereupon fixed by the parties. The cost of such examination shall be paid for by the insured. A clause shall be inserted in such policy stating substantially that the value of the insured's interest in such building or structure has been thus fixed. In the absence of any change increasing the risk without the consent of the insurer or of fraud on the part of the insured, then in case of a total loss under such policy, the whole amount so insured upon the insured's interest in such building or structure, as stated in the policy upon which the insurers have received a premium, shall be paid, and in case of a partial loss the full amount of the partial loss shall be so paid, and in case there are two or more policies covering the insured's interest therein, each policy shall contribute pro rata to the payment of such whole or partial loss. But in no case shall the insurer be required to pay more than the amount thus stated in such policy. This section shall not prevent the parties from stipulating in such policies concerning the repairing, rebuilding or replacing buildings or structures wholly or partially damaged or destroyed. En. Stats. 1900-01, 572.

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