they are liable to a foreign assured on the policy (s). And in a recent case, the rule that the act of the government of a country is to be treated for this purpose as the act of each subject of it was denied, and it was held that this rule, even if correct, could not be applied to the case of an embargo laid on in a time of peace between the countries of the insurer and assured, for a purpose wholly unconnected with hostility either existing or expected (t). Such a risk, however, is not protected if the nationality of the assured is not communicated to the underwriter; for the former might not only omit to take proper means for preventing the loss, but might facilitate it by giving information to his own government, a possibility which materially varies the risk (u). The detention must be the immediate cause of loss; if, therefore, there is an embargo at the port of destination which compels the master to avoid proceeding there, and the object of the voyage is thereby defeated, the assured is not protected (v); nor can the policy be extended so as to cover a deviation rendered necessary by an embargo, or the like (w). Where, however, a vessel chartered to a port in America was insured on her voyage out and home, and on arrival at her port of destination her master found that the port was under an embargo, but the ship was permitted either to return with the cargo on board, or to discharge her cargo and return in ballast, upon which the master discharged the cargo, and, after waiting eighteen months until the embargo ceased, returned with a homeward cargo, it was held that the underwriters were liable for a loss on the home voyage (x). (8) Simeon v. Bazett, 2 M. & S. 94; S. C. in error, nomine Bazett v. Meyer, 5 Taunt. 824; see also Flindt v. Scott, in error, ib. 674, where it was held that a foreigner who engages, under a licence from this country, in a trade prohibited by the law of his own country, separates himself from the acts of his own government. In America it has been held that there is no objection to insurances on this ground. 3 Kent Com. 292. (t) Aubert v. Gray, 3 B. & S. 163; S. C. in Cam. Scacc., ib. 169; 32 L. J., Q. B. 50. The Court of Exchequer Chamber expressly abstained from saying that if the act of seizure had been a lawful act under the municipal law of the country to which the assured belonged, it would, as against him, have been covered by the insurance. (u) Campbell v. Innes, 4 B. & A. 423. () Hadkinson v. Robinson, 3 B. & P. 388; Lubbock v. Rowcroft, 5 Esp. 50; Forster v. Christie, 11 East, 205. As to what captures are covered by a warranty against the ship's seizure in her port of discharge, see Dalgleish v. Brooke, 15 East, 295; Keyser v. Scott, 4 Taunt. 660. Where goods are landed in the usual manner, and then seized, they are not protected, even although they have not reached the possession of the consignee. See Brown v. Carstairs, 3 Camp. 161. The cases in which the seizure has arisen from the breach of a warranty will be found post, Chap. VII. Pt. II. (w) Parkinv. Tunno, 2 Camp. 59; S. C. 11 East, 22; Blackenhagen v. The London Assurance Company, 1 Camp. 454. (x) Schroder v. Thompson, 7 Taunt. 462. Barratry. Suing and labouring clause. We have already seen what constitutes barratry (a). Losses arising from barratry need not follow immediately upon the act of barratry; the underwriter is not, however, liable if the loss does not occur until after the expiration of the risk described by the policy, although the act of barratry have been committed during the continuance of the risk. Thus, where a ship was insured for a voyage, and after she had been in port twenty-four hours was seized, in consequence of an act of smuggling committed by the master during the voyage, this was held not to be a loss within the policy (y). After enumerating the perils insured against, the policy provides that, in the event of loss or misfortune, the assured may "sue, labour and travel" for the defence or recovery of the goods or ship without prejudice to the insurance, and that the assurers are to contribute to the charge. This is called the "suing and labouring clause." Its object is that if an occasion should occur in which by reason of a peril insured against unusual labour and expense are rendered necessary to prevent a loss for which the underwriters would be answerable, and such labour and expense is incurred accordingly, the underwriters will contribute, not as part of the sum insured in case of loss or damage, because it may be that a loss or damage for which they would be liable is averted by the labour bestowed, but as a contribution on their part as persons who have avoided detriment by the result, in proportion to what they would have had to pay if such detriment had come to a head for want of timely care (). Thus the clause includes reasonable expenses incurred, as freight paid for forwarding in another ship goods that would otherwise have been a loss to the insurers, or charges paid for unshipping cargo in order to avert a total loss (a). It does not, however, apply where money is expended in the forwarding of goods insured if they be not in peril though (x) Ante, p. 145; and see The Australian Insurance Company v. Jackson, 33 L. T. 286. (y) Lockyer v. Offley, 1 T. R. 252. (z) See per Willes, J., in Kidston v. The Empire Insurance Company, L. R., 1 C. P. 543; 2 C. P. 357; and the judgment in Meyer v. Ralli, 1 C. P. D. at p. 373. (a) Kidston v. The Empire Insurance Company, ubi supra, where the effect of a perishable nature (b); nor does it include salvage expenses, for these are assessed upon the principle not of quantum meruit, but of the maritime law which gives to those who bring in the ship a sum out of proportion to the expense actually incurred and the service rendered, because if the effort to save the ship had been unsuccessful nothing would have been payable (c); nor a claim for the costs of successfully defending a suit for damage done to a vessel run down by the ship insured (d). RANDUM. Eighthly, as to the memorandum. In order to prevent the THE MEMOunderwriters from being liable for injury to goods of a peculiarly perishable nature, and for minor damages, the memorandum is inserted (e). The usual terms of this part of the policy are as follows:N.B.-(1) Corn, fish, salt, fruit, flour, and seed, are warranted free from average, unless general or the ship be stranded; (2) sugar, tobacco, hemp, flax, hides and skins are warranted free from average under five per cent.; (3) and all other goods, also the ship and freight, are warranted free from average under three pounds per cent., unless general or the ship be stranded. The word average is not used in the memorandum in the sense spoken of in a former Chapter. It does not mean here a general loss to which all must contribute, but a partial damage to particular goods (ƒ). The meaning of this obscure memorandum is this: on the articles mentioned in paragraph (1) the underwriters are not to be liable for any partial damage, unless the loss is in the nature of a general average, or the ship is stranded; on the articles mentioned in paragraph (2) they are not to be liable for any damage (except loss in the nature of a general average) unless it equals or exceeds five per cent. of their value; and (3) on the (b) The Great Indian Peninsula Railway Company v. Saunders, 1 B. & S. 41; 30 L. J., Q. B. 218; S. C., 2 B. & S. 266; 31 L. J., Q. B. 206; Booth v. Gair, 15 C. B., N. S. 291. (c) Aitcheson v. Lohre, L. R., 4 App. Cas. 755, overruling the decision below, 3 Q. B. D. 558; see also Dixon v. Whitworth, 4 C. P. D. 371; reversed on appeal, W. N. 1880, p. 43, nom. Dixon v. The Sea Insurance Company. (d) Xenos v. Fox, L. R., 3 C. P. 631; S. C., Cam. Scacc., L. R., 4 C. P. 665; see also Dixon v. Whitworth, ubi supra. (f) The word average is from the Average within its meaning. ship, freight and all other goods, they are not to be liable for any damage (except loss in the nature of a general average), unless it equals or exceeds three per cent. of the value, or the ship is stranded (g). The words in the memorandum do not exclude the operation of the suing and labouring clause, or prevent the underwriters being liable to pay to the assured whatever sums are recoverable under that clause (h). It has been held that the word corn in the memorandum includes malt (i), and also peas and beans (j), but not rice (k). As in other cases, a loss is, for these purposes, total, if the effect of the damage is such that the goods are lost to the assured (7). Thus, where a cargo of fruit was so damaged by sea water that the authorities refused to allow it to be landed at a port to which the ship was driven, and it was there thrown overboard, it was held that the underwriter was liable (m). Where the cargo, although damaged, arrives at its destination, the underwriter is protected by the exception (n). And if the vessel is wrecked short of its destination, and the cargo is got ashore in a damaged condition in specie, but not being of a perishable nature, it might have been conveyed to the port to which it is consigned without any loss of its specific character, the underwriter is protected (o). (g) See 1 Arnould on Ins. 33 (2nd edit.). Policies on cargoes destined to foreign ports sometimes contain a provision that the underwriter is "to pay general average as per foreign statement, if so made up," or to the like effect. Where this is inserted the underwriters are bound by a foreign adjustment in accordance with the law in force where it is made, although its effect may be to treat as general average what, according to English law, would be particular average, Harris v. Scaramanga, L. R., 7 C. P. 481. Hendricks v. The Australasian Insurance Company, L. R., 9 C. P. 460; Mavro v. The Ocean Marine Insurance Company, ib. 595, and L. R., 10 C. P. 414. See as to a similar clause in a bill of lading, Stewart v. The West India and Pacific Steamship Company, L. R., 8 Q. B. 88; affirmed 1b. 362. See also supra, p. 436. In the absence of such a clause, the practice of average adjusters, however long established, cannot control the law, Atwood v. Sellar, 4 Q. B. D. 342; 5 Q. B. D. 286. (h) See Kidston v. The Empire Marine Insurance Company, L. R., 2 C. P. 357; Meyer v. Ralli, 1 C. P. D. 358, 373. (i) Moody v. Surridge, 2 Esp. 633. () Mason v. Skurray, 1 Park on Ins. 174. (k) Scott v. Bourdillon, 2 N. R. 213. (1) See Roux v. Salvador, 3 Bing. N. C. 266, and the cases cited post, Chap. VII., Part II., CONSTRUCTIVE TOTAL Loss. Whether a loss is total or partial depends upon general principles, which apply equally to the articles which are within the memorandum, and to those which are covered by the policy generally. See the judgment in Roux v. Salvador, ubi supra. (m) Dyson v. Rowcroft, 3 B. & P. 474; Cocking v. Fraser, 1 Park on Ins. 181; Cologan v. The London Assurance Company, 5 M. & S. 447; Parry v. Aberdein, 9 B. & C. 411. (n) Mason v. Skurray, 1 Park on Ins. 191; Anderson v. The Royal Exchange Assurance Company, 7 East, 38. (0) Thompson v. The Royal Exchange Assurance Company, 16 East, 214; But if goods of a perishable nature are damaged by the sea, and necessarily landed before the termination of the voyage, and it is found that they cannot be brought to their destination without losing their original character, owing to their being unable to bear the further voyage in their damaged condition, the circumstance of their existing in specie at that forced termination of the risk does not prevent the assured from recovering, although the goods are sold in their original character (p). Where goods are sold under such circumstances the question is, not whether a prudent person uninsured would have sold them, but whether the goods are in such a state that, if brought home, they could be sold for an amount exceeding the expense of unshipping, drying, or warehousing, and transshipping and salvage. If this is not so, the loss is total (g). In such a case the original freight which would have to be paid if the goods were carried to the port of discharge, either by the vessel in which they were originally shipped or by one substituted, ought not to be taken into account; for that is a charge to which the goods would be liable when delivered whether affected or not by perils of the sea (r). Where in the memorandum the words "warranted free from particular average" are used, these words are not confined to losses arising from injury to the goods themselves, but amount to a warranty against any loss other than a total loss, or general average; and therefore, under a policy in the ordinary form on goods, the underwriters are not liable for expenses incurred in relation to the goods, unless such expenses are paid to avert a general average loss, and are therefore recoverable under the suing and labouring clause (s). Glennie v. The London Assurance Company, 2 M. & S. 371; Hedburg v. Pearson, 7 Taunt. 154. (p) Roux v. Salvador, 3 Bing. N. C. 266, reversing Roux v. Salvador, 1 Bing. N. C. 526; Navone v. Haddon, 9 C. B. 30; Mavro v. The Ocean Marine Insurance Company, L. R., 9 C. P. 595. (q) Rosetto v. Gurney, 11 C. B. 176; Reimer v. Ringrose, 6 Ex. 263. (r) Farnsworth v. Hyde, L. R., P. 204. 2 C. (8) Meyer v. Ralli, 1 C. P. D, 372, 373; The Great Indian Peninsula Railway Company v. Saunders, 1 B. & S. 41; S. C. in Cam. Scacc., 2 B. & S. 266. In this case iron rails were shipped to a foreign port, freight to be paid here, ship lost or not lost. The shippers insured them by a policy in the ordinary form, "warranted free from particular average, unless the ship be stranded, sunk or burnt," with the usual clause authorizing the assured to "sue, labour and travel for, in and about the defence, safeguard and recovery of the goods." The ship was neither stranded, sunk nor burnt, but there was a constructive total loss of her by perils of the sea. The rails were saved, and sent on in other vessels to their destination, for which the assured was compelled to pay freight to an amount not exceeding the value of the rails. It was held that this freight was not recoverable under the policy. See |