which were capable of separate valuation, a loss of one was a total loss to that extent (1), but that if the cargo was stowed in bulk (m), or a portion only of each cask or the like was damaged (n), this was to be considered an average loss. This important question was, however, discussed before the Exchequer Chamber in a modern case, and that Court, after reviewing the earlier decisions, and explaining that their effect had been to a great extent misapprehended, held that where memorandum goods of the same species are shipped, whether in bulk or in packages not expressed by distinct valuation or otherwise in the policy to be separately insured, and there is no general average, and no stranding, the ordinary memorandum exempts the underwriters from liability for a total loss or destruction of part only, although consisting of one or more entire package or packages, and although such package or packages be entirely destroyed or otherwise lost by the specified perils (0).

Where, however, " master's effects" were insured "free from all average," and some of the articles were wholly lost, but others were saved, it was held that the master might recover for those which were lost, since the word "effects" was used merely to save the enumeration in the policy of the articles insured, and it was therefore intended that the insurer should be liable for any total loss of the specific things referred to by this general word (p). So, where the insurance was for "240l., on goods so valued against total loss only," and the assured put on board goods of different kinds and descriptions, and in separate cases and packages, and all the goods were lost except three of the packages, it was held that he might recover in respect of the packages which were totally lost (q). Where the policy was "on rice to be declared warranted free of particular average," it was held that the assured could not, by indorsing on the policy a declaration of interest, with a separate valuation of each bag of rice, create a separate insurance on each bag (r).

Where a policy contained, in addition to the usual memorandum, a clause binding the underwriter to pay average separately upon each package, this was held not to prevent the assured, in the event of some packages only being injured, from selling the whole and recovering for an average loss upon the whole exceeding three per cent. (s).

Under the words " are warranted free from average under three per cent.," the underwriter is liable if it appears at the end of the voyage that the aggregate amount of several partial losses equals or exceeds three per cent., although each taken separately is under that amount (t). The proportion which the average bears to the cargo must be calculated with reference to the state of the cargo at the time at which the loss happens (u).

By the warranty of goods free from average, unless "the ship Stranding. be stranded," the underwriters agree to ascribe the loss to the stranding, as being the most probable occasion of it, although the fact cannot always be ascertained (x). Accordingly, where a stranding has taken place, an average loss becomes a charge upon the underwriters, whether it has been in reality occasioned by the stranding or not (y), provided the stranding took place while the goods were on board. Where it does not occur until after they are landed the liability of the underwriter is not affected, although the landing took place at an intermediate port, and in consequence of the goods being damaged (z).

To constitute a stranding a striking is not sufficient. If the ship merely touches or strikes and gets off again, how much soever she may be injured, she is not stranded; but if she settles and remains for any time, this is a stranding, without reference to the degree of damage which she sustains (a). A resting for

(s) Hagedorn v. Whitmore, 1 Stark. 157. As to the effect of a separate valuation of the hull and machinery of a steamer where average expenses are incurred for the benefit of the whole adventure, see Oppenheim v. Fry, 11 W. R. 725.

(t) Blackett v. The Royal Exchange Assurance Company, 2 C. & J. 244.

(u) Rohl v. Parr, 1 Esp. 446. (x) See per Lord Kenyon in Nesbitt v. Lushington, 4 T. R. 787.

(y) See per Lord Tenterden in Wells v. Hopwood, 3 B. & Ad. 35; see also Wilson v. Smith, 3 Burr. 1550; Burnett

v. Kensington, 7 T. R. 210; Harman v.
Vaux, 3 Camp. 429.

(z) Roux v. Salvador, 1 B. N. C. 526,
overruled, but not on this point, 3 B. N.
C. 266.

(a) Harman v. Vaux, ubi supra; Macdougle v. The Royal Exchange Assurance Company, 1 Stark. 130, in which Lord Ellenborough said, "A striking is not sufficient; it is merely temporary, or as it has been vulgarly described, a touch and go; but in order to constitute a stranding, the ship must be stationary." See S. C. 4 M. & S. 503.

fifteen or twenty minutes has been held to be a stranding (b). It is immaterial whether it be upon a bank or a rock (c). It is not, however, every stationary taking ground that constitutes a stranding. Thus, where a vessel takes the ground in the ordinary and usual course of navigation and management in a tidal river or harbour, upon the ebbing of the tide, or from a natural deficiency of water, so that she may float again upon the flow of the tide or increase of the water, this is not a stranding within the meaning of the memorandum (d). But it is otherwise where the ground is taken under any extraordinary circumstances of time or place, by reason of some unusual or accidental occurrence (e). Thus, when a vessel took the ground several times in going up a harbour in the ordinary course of navigation from the shallowness of the water, this was held to be no stranding (ƒ). So, where a vessel took the ground in a tidal harbour where it was intended that she should do so, at the time she was moored, and was injured by striking against some hard substance, this was also considered not to be a stranding (g). But where a ship was improperly fastened to a pier in a basin, so that she took the ground, and when the tide left her she fell over and was bilged, this was held to be stranding (h). So, where the water being drawn off from an inland navigation for the purpose of repairing it, a vessel settled accidentally upon some piles which were not previously known to be there (i), where a vessel, having struck upon an anchor in a harbour, was injured and in danger of sinking, and was thereupon hauled higher up the harbour and drawn upon the ground, where she remained for some time (k), and where a ship under stress of weather made a tidal harbour, but it being low water she grounded there (), these were all held to be cases of stranding.

(b) Baker v. Towry, 1 Stark. 436. (c) Ib.

(d) Magnus v. Buttemer, 11 C. B. 867; 3 Kent Comm. 323, note (c). See also the judgment in Corcoran v. Gurney, 1 E. & B. 456.

(e) See the judgment of Lord Tenterden in Wells v. Hopwood, 3 B. & Ad. 35.

(f) Hearne v. Edmunds, 1 B. & B. 388.

(g) Kingsford v. Marshall, 8 Bing. 458.

(h) Carruthers v. Sydebotham, 4 M. & S. 77; see also Bishop v. Pentland, 7 B. & C. 219.

(i) Rayner v. Godmond, 5 B. & A.

225.

(k) Barrow v. Bell, 4 B. & C. 736. (1) Corcoran v. Gurney, ubi supra.

IMPLIED.

THE term Warranty, as used in insurance law, means any asser- WARRANTIES tion or undertaking on the part of the assured, whether ex- EXPRESS AND pressed in the contract, or capable of being annexed to it, on the strict and literal truth or performance of which the liability of the underwriter is made to depend. Warranties may be What is a either express or implied; they are express if stated in terms in warranty. the contract, and implied if superadded to it by custom and

known usage. In either case, and whether they are material or not to the risk (a), the strict performance of them is a condition precedent to the attaching of the underwriter's liability (b); even although the loss arise from a cause wholly unconnected with the breach of warranty (c), and the non-compliance with it occasion no damage (d). Nor will a compliance with a warranty be excused by the occurrence of events over which the assured has no control (e). And where the warranty is of a matter which continues of importance until the risk determines, as, for instance, a warranty of neutrality, such a warranty is continuous so far as relates to the acts of the assured, whether the policy be for a voyage or for a time certain (f).

The subject of Representations will be considered in a later part of this Chapter (g). They may be defined to be statements or assertions made at the time of entering into the contract, but not embodied in it, or if embodied in it, not intended to be of its essence. They differ from warranties inasmuch as they are collateral to the contract, and a substantial compliance with them is sufficient.

An express warranty must appear on the face of the policy. The contents of a separate paper, even although it is wrapt up with the policy, or pinned or wafered to it, have been held not to be a warranty, but merely a representation (h). If, however, the separate paper is referred to in the policy, so as to be incorporated with it, it is otherwise; as where the policy is declared to be made subject to the rules of a company or club (i); and a statement in the margin of the policy (k), or at the bottom of it (1), may be a warranty.

The most usual express warranties in time of peace are, that the ship is safe on a given day, and that she will sail or depart on a given day. In time of war it is also usual to warrant that

(a) See the judgment of Lord Eldon in The Newcastle Fire Insurance Company v. Macmorran, 3 Dow. 262.

(b) Pawson v. Watson, 2 Cowp. 785; De Hahn v. Hartley, 1 T. R. 343; 2 T. R. 186.

(c) Woolmer v. Muilman, 3 Burr. 1419. (d) Rich v. Parker, 2 Esp. 615; 7 T. R. 705.

(e) Hore v. Whitmore, 2 Cowp. 84. (f) See the judgment in Sillem v. Thornton, 3 E. & B. 883.

(g) Post, p. 392.

(h) Pawson v. Ewer, 1 Doug. 12, note;

Pawson v. Barnevelt, ib.; Bize v. Fletcher, 1 Doug. 13, note.

(i) Pittegrew v. Pringle, 3 B. & Ad. 514; Graham v. Barras, 5 B. & Ad. 1011; Colledge v. Harty, 6 Ex. 205. This rule was first acted on in cases of fire policies. See Routledge v. Burrell, 1 H. Bl. 254; Worsley v. Wood, 6 T. R. 710.

(k) Bean v. Stupart, 1 Doug. 11; De Hahn v. Hartley, ubi supra.

(1) Blackhurst v. Cockell, 3 T. R.

360.