perils of the sea, nor within the terms "all other perils, losses and misfortunes," &c., as contained in the policy (c).

4. The captain of a vessel committed during a voyage barratry by smuggling. Therefore the ship was arrested, but not till she had been moored twenty-four hours in safety at her destined port. Held, the underwriter was not liable, for the loss did not occur during the voyage (d).

5. The B. met the A. under circumstances which rendered it the duty of the B. to port her helm, but she neglected to do so, and the B. was lost. Held, that the conduct of the master of the B. in not porting did not amount to barratry, though it was a wilful default within sect. 299 of the Merchant Shipping Act, 1854 (e).

6. The Rosslyn was insured as against the usual perils, barratry included, but was warranted "free from capture and seizure, and the consequences of any attempt thereat." During the continuance of the policy, the master took on board a cargo of tobacco, for the purpose of smuggling it into Spain. He did so for his own benefit, and against the express instructions of the owners, and his conduct was, therefore, barratrous. The ship was seized by the Spanish revenue officers, and taken into Cadiz. Held, that the underwriters were not liable for the costs incurred by the owners in recovering the ship (f).

7. A ship insured having arrived in port and discharged her cargo, was necessarily placed in a graving dock to be repaired. While there she was, through the violence of the wind and weather, thrown over on her side, and, striking the ground, was bilged. Held, that this was a loss within the terms of the policy "all other perils, losses and misfortunes," &c., and that the underwriters were liable (g).

§ 149.

The following losses are not covered by a marine policy Losses not drawn up and executed in the ordinary form :-Inherent covered by the policy. vice in the thing insured (h); leakage, breakage and bursting (i); ordinary wear and tear, as when a mast is sprung, or a sail split, or a cable damaged by rocks (j); 1883, p. 79.

(c) Taylor v. Dunbar, L. R., 4 C. P. 206.

(d) Lockyer v. Offley, 1 T. R. 252. (e) Grill v. Gen. Iron Screw Colliery Co., L. R,, 3 C. P. 476 (S. C.).

(f) Cory v. Burr, 9 Q. B. D. 463 (C. A.); 51 L. J., Q. B. 468; 47 L. T. 181; affirmed (H. L.), W. N.

N.

(g) Phillips v. Barber, 5 B. & Ald. 161.

(h) Taylor v. Dunbar, L. R., 4 C. P. 206.

(i) Spence v. Union Mar. Ins. Co., L. R., 3 C. P. 427.

(j) Stevens, Av. 160, 166.

S

Embargo, blockade, &c.

Damage.

"Collision"

clause.

damage caused by rats and worms (k); mortality among animals, unless caused by the violence of the weather (1); losses only remotely resulting from the perils insured against (m); losses caused by bad stowage or by theft; loss caused by negligence on the part of the insured or his agents (»), as where the shipowner sends a ship insured to sea at a time when it is dangerous to go to sea.

So if the vessel does not complete her voyage through fear of an embargo (o), or if her port of destination be blockaded (p), or if the cargo be seized after being landed in the customary manner (q), the policy will not cover such losses.

If the vessel insured damages another ship by a collision, each vessel has to pay one-half the loss sustained by both (r). Consequently, if the insured vessel has done more damage than she has received, her owners, if they pay the difference, cannot recover it from the underwriters (s). For the proximate cause of the loss, the collision, is not one of the perils insured against.

But if the policy contain a "collision" or running down" clause, the underwriters will be bound thereby. In the ordinary collision clause the underwriters insure three-fourths of the damages payable in respect of a collision. The remaining one-fourth can be covered by a further insurance. But the costs incurred by the damaged vessel in defending an action will not be covered either by the collision clause, or by the usual sue and labour clause (†). (0) Forster v. Christie, 11 East,

(k) Hunter v. Potts, 4 Camp. 203; Laveroni v. Drury, 8 Exch. 166; Rohl v. Parr, 1 Esp. 445.

(1) Lawrence v. Aberdein, 5 B. & Ald. 107; Gabay v. Lloyd, 3 B. & Cr. 793; see "Case" at end of this §.

(m) Powell v. Gudgeon, 5 M. & Sel. 431; De Vaux v. Salvador, 4 Ad. & E. 420; Greer v. Poole, 5 Q. B. D. 272; 49 L. J., Q. B. 463; 42 L. T. 687.

(n) Thompson v. Hopper, 6 E. & B. 172; Siordet v. Hall, 4 Bing. 607.

205.

(p) Hadkinson v. Robinson, 3 B. & P. 388.

(4) Brown v. Carstairs, 3 Camp.

161.

(r) See Bk. I., Ch. XIV. § 89,

p. 152.

(s) De Vaux v. Salvador, 4 Ad. & El. 420; Greer v. Poole, 5 Q. B. D. 272; 49 L. J., Q. B. 463; 42 L. T. 687.

(t) Xenos v. Fox, L. R., 4 C. P. 665 (S. C); Thompson v. Reynolds, 7 E. & B. 172.

The underwriters can sue in the insured's name and recover from the owner of the vessel in fault the amount paid by them under the policy in respect of the collision, provided the insured could have recovered, and not otherwise (u). Therefore, in cases where both the colliding vessels belong to the insured they will have no right of action (x).

CASE.

A policy was effected on horses, warranted free from mortality and jettison. During the voyage, in consequence of the agitation of the ship in a storm, the horses broke down the partitions separating them, and by their kicking bruised and wounded each other so much that they all died. Held, that this was a loss by a peril of the sea (y).

§ 150.

The memorandum at the end of the policy is inserted to The memofree the underwriter from liability on account of small randum.

averages.

By virtue of the memorandum attached to the statutory form of a marine policy (≈) which is used at Lloyd's, the underwriter is not liable for any loss (a) on the articles enumerated first in the memorandum, i.e., on corn, fish, salt, fruit, flour and seed; or for any loss under 5 per cent. on the second class of articles, i. e., on sugar, tobacco, hemp, flax, hides and skins; or for any loss under 3 per cent. on the third class, viz., on all other goods, or on the ship or the freight; unless the loss were occasioned by a general average or the stranding of the ship. In the case of the first class of articles the underwriter is virtually exempted from being liable for any deterioration, not amounting to a total loss. This stipulation between the underwriter and the insured is generally termed the common memorandum, and the articles enumerated in it are called memorandum articles.

(u) Yates v. Whyte, 5 Scott, 640. (x) Simpson v. Thompson, 3 App. Cas. 279.

(y) Gabay v. Lloyd, 3 B. & Cr. 793.

(*) For the statutory form of the

memorandum, see Bk. II., Ch. II.
§ 132, p. 221.

(a) The Great Indian P. R. Co.
v. Saunders, 2 B. & S. 266; see
"Cases" (4) at end of this §; Booth
v. Gair, 15 C. B. (N. S.) 291.

"Warranted free from particular average"meaning of.

When successive losses can be added together.

The percentages-how calculated.

The expression "warranted free from particular average,' as used in the ordinary marine policy, will not be confined merely to losses arising from injury to, or deterioration of, the goods themselves; but it is equivalent to a stipulation against total loss and general average only. It therefore will cover expenses incurred in relation to the goods (b).

The expression "warranted free from average unless general," means that the memorandum frees the underwriter from all liability for anything not amounting to a total loss, except when it is of the nature of general average. For he will always be liable for general average losses (c).

The word "corn," as used in the memorandum, will include peas and beans (d), and malt (e), but not rice (ƒ). Salt will not include saltpetre (g).

In the case of the second and third classes of articles, successive losses, occurring at different times, can be added together to make up the 5 or 3 per cent respectively, in order to make the underwriter liable. But general and particular average cannot be added together for that purpose. Neither can the cost of ascertaining the extent of the loss, nor particular charges, i.e., expenses incurred in preserving the cargo or freight,—for instance, warehouse rent,—be added to the damage for the purpose of making up the required percentage. However, if the damage itself reaches the required percentage, the cost of ascertaining it, or the particular charges, will fall on the underwriter (h).

The percentage is calculated on the amount at risk at the time of the loss (i) If the articles be insured in gross, it will, supposing the articles are specified as in the 5 per cent. clause, be calculated on the full amount of each specified article, taken by itself. When the articles are

(b) The Gt. Indian P. R. Co. v. Saunders, 2 B. & S. 266; see "Cases" (4) at end of this §.

(c) Wilson v. Smith, 3 Burr. 1550. (d) Mason v. Skurray, 1 Park, 179, 191.

(e) Moody v. Surridge, 2 Esp.

633.

(f) Scott v. Bourdillion, 2 B. & P. N. R. 213.

(g) Journieu v. Bourdieu, 1 Park,

179.

(h) Stevens on Av. 228-232. (i) Rohl v. Parr, 1 Esp. 445.

not so specified, for instance, in the case of the 3 per cent. clause, or when large quantities of the same article are shipped in separate packages, the percentage is to be calculated on the aggregate value of all the articles or packages (j).

If the damage is in excess of the necessary percentage on the whole amount, the insured may either calculate the percentage on the whole amount or on the damaged packages (k).

Every average or partial loss, however trifling, will be Stranding. a charge on the underwriters, if a stranding has occurred, whether or not the loss were really caused by the stranding (1). However, the stranding must occur during the continuance of the risk on the memorandum articles (m).

To constitute a stranding the ship must be stationary at the time of stranding (n). Therefore, if after striking on a rock the ship remain only a short period, e. g., a minute and a half, before sinking, it will not be a stranding (0). So if the vessel takes the ground in the ordinary course of navigation, and not through some accidental cause, such a grounding will not amount to a stranding (p). But on the other hand if a ship is forced ashore by the wind, or is driven on a bank and remains fast for any time, this will constitute a stranding (q).

CASES.

1. A ship laden with goods insured on a voyage from London to Hull, but "warranted free from average unless general or the ship

(j) Stevens on Av. 224-228. (k) Stevens on Av. 226; Hagedorn v. Whitmore, 1 Stark. 157.

(1) Wellsv. Hopwood, 3 B. & Ad. 20, 35; see "Cases" (1) at end of this §; Kingsford v. Marshall, 8 Bing. 458; Burnett v. Kensington, 7 T. R. 210.

(m) Roux v. Salvador, 3 Bing. N. C. 266 (S. C.)

(n) Dobson v. Bolton, 1 Park, Ins. 177; Harman v. Vaux, 3 Camp. 429.

(0) Mac Dougle v. R. E. A. Co., 4 M. & Sel. 503.

(p) Per Lord Tenterden, Wells v. Hopwood, 3 B. & Ad. 34; Kingsford v. Marshall, 8 Bing. 458; Fletcher v. Inglis, 2 B. & Ald. 315; Rayner v. Godmond, 5 B. & Ald. 225; see "Cases" (2) at end of this §; Corcoran v. Gurney, 1 E. & B. 456; and Letchford v. Oldham, 5 Q. B. D. 538 (C. A.); 49 L. J., Q. B. 458; 28 W. R. 789; see "Cases" (3) at end of this §.

(2) Harman v. Vaux, 3 Camp.

429.