Charles Edward Pollock Frederic Philip Maude.

Compendium of the law of merchant shipping online

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usually been construed strictly as against the assured, and have
been confined to such deviations as are consistent with the
general objects and purposes of the voys^e. Thus, where leave
was given to carry letters of marque, and to chase, capture, and
man prizes, it was held that this did not justify the ship in
shortening sail and lying-to several times on the voyage, in
order to allow a prize which she had captured to come up and
keep company with her(0. Where permission is given to j
touch at difTerent ports, the ship may omit some of them(tt); /
but if she goes to more than one, she must visit them in the /
order described in the policy (jt), unless it appear clearly from
the whole scope of the adventure, or from the expressions used .
in the policy, that it was not intended to indicate the order in >
which the ship must proceed, but merely to describe the dis-
trict comprehending all the ports and places which she might
visit (y). This liberty to touch is also available only for pur-
Co) Blackenkagen v. The London At- 45 ; see also Jarratt v. Ward^ 1 Camp.
mranee Company, 1 Camp. 454. 263 ; Hibbert v. HalUday, 2 Taunt. 428.

{p) Dtlaney Y. Stoddart, 1 T. R. 22. («) Manden v. Reed, 3 East, 572.

Iq) See ante, p. 299, and Bond v. Oon^ {») Martden y. Reed, uH iupra ; see

eales, 2 Salk. 445. also Beatson y. Haworth, 6 T. R. 531 ;

(r) Salvador y. Hopkins, 3 Burr. 1707 ; Oairdner v. Senhoueet 3 Taunt. 16.
Gregory y. Christie, 1 Park on Ins. 83 ; (y) MetcaJfe y. Parry, 4 Camp. 123 ;

Farquharson y. Hunter, ib. 84 ; Grant y. Bragg y. Jnderson, 4 Taunt 229 ; Jsh"
Paxton, 1 Taunt. 463. ley y. Pratt, 16 M. & W. 471 ; 1 Ex.

(«) Fallanee y. Detear, I Camp. 503. 257.

(I) Lawrence y. Sydebothanh 6 East,



317



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318 INSlTRANCfi.

poses connected with^ and sabordinate to, the voyage insured.
Calling at a port, therefore, for any other parpose, notwith-
standing the policy may contain very general terms, as, for
instance, that the ship may touch '^for all purposes whatsoever,"
has been held to avoid the insurance (z), A liberty, however,
to touch, or to touch and stay, will authorize the discharging or
taking in of cargo, provided this is not inconsistent with the
general purposes of the voyage, and does not increase or vary
the risk (a).

If the vessel sails upon the voyage insured, and deviates
durii^ the course of it, the assured may recover for a loss which
happens before she reaches the dividing point (6). Thus,
where a policy was effected on goods from Liverpool to Lon-
don, and the ship, without any permission to do so, put into
Southampton to discharge a portion of the cargo, it was held
that until she reached Southampton the goods were protected
by the policy (c).

It has be^i already said that a mere intention to deviate will
not affect the policy ((2). On the other hand, however, the

f ' policy is discharged if the master never intended to sail on the
voyage insured, although the loss may occur before she arrives
at the deviating point. Thus, where the insurance was on a
voyage from Maryland to Cadiz, and the captain, when he

i sailed, had no intention of going to that place, it was held that
the policy was discharged, although the vessd, when captured,
was in the course from Maryland to Cadiz, and had not reached
the point at which she would have diverged to go to the place
for which she was actually destined (e).



Perils Seventhly, as to ^Ae perils insured againsU We have seen in

what terms these perils are usually described in the policy (/).



INSURED
AGAINST.



(s) Langhom ▼. AUnutt, 4 Taunt p. 315.
511 ; mniama ▼. Shee, 8 Camp. 469; (a) Raine Y, Bell^ 9 East, 195} Cor-

Hammond v. Reid, 4 B. & A. 72 ; Solly mack y. Gladttone^ ubi tupra,
y. fP%i/more, 5 B. & A. 45 ; Bottomley y. (6) Qreen v. Young, 2 Balk. 444;

Bovilly 5 B. & C. 210. The following Carter y. The Royal Exchange Jsntrmnee

are cases in which the staying or trad- Company ^ cited 2 Str. 1249 ; HeeeHem y.

ing has been held authorized by the AllmUt, 1 M. & S. 46.
terms of the policy. Urquhart y. Bar- (c) Hare v. Travii, 7 B. ft C. 14.

nard, I Taunt 450 ; Cormack y. Glad- (d) Thellui$on y. Fergusson, I Do«g.

ttonej 11 East, 847; VMeU v. Allmttt, 861 ; Kewiey y. Ryan^ 2 H. Bl. 848;

8 Taunt 419 ; Rueker y. Allnutt, 15 see also antCt p. 815.
East, 278 ; Armet y. Innes, 4 Moore, (e) Woolridge y. Boydetl, 1 Doug. 16;

150; Leaihly v. Hunter, 7 Bing. 517; Way y. ModigUani, 2 T. R. 80.
Warre y. Miller, 4 B. 8r C. 589. See (/) Ante, p. 298.

also the cases cited in note (r), ante.



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IN8URANCB. 319

We will consider them in the order in which they are men-
tioned ; observing, that in all inquiries as to whether a parti-
cular peril falls within the description in the policy, it is a
leading principle that the proximate and not the remote cause is
to be looked to(y).

The words "perils of the sea" apply only to losses of which P^"^ o^*^®
the operative cause occurs while the ship is at sea, or in a
fdace where the tide flows. They do not include an injury done
n^ikt the vessel is hove down on a beach within the tide-
way (A), or in a graving dock (£)• Nor do they apply to all
perils which may happai on the sea (i) ; but to such of these
accidents only as are caused by the violence of the wind or
waves, by thunder and lightning, by driving against rocks, by
the stranding of the ship, or the like (/).

The underwriters are liable, therefore, in respect of animals
which are killed or damaged by the motion of the vessel during
a storm (m), and for injuries which arise from a ship's taking
ground in a tidal harbour^ owix^ to an accidental and extraor-
dinary swell (n), or from her having stranded (o), or from an
accidental collision (p).

If the loss is immediately occasioned by a peril insured
against, the insurers are UaUe, although it arose remotely from
the neglig^ice or misconduct of the master and crew (q\ or
from a collision caused by gross n^ligence on the part of the
crew whoBe ship ran into the vessel insured (r). But they are
not liable in respect of a loss not arising from the perils insured

ig) In jure man remtia causa ted borough in CuXkn v. ButUr^ 6 M. & S.

prmaa tpeeicUuTf Bacon's Max. 1, where 464.

it it said, " It were infinite for the law (/) 1 Park on Ins. 102.

to judge tlM caupes of causes, and their (m) Lawrence v. Jberdein, 5 B. & A.

impolsions one of another ; therefore it 107 ; Gabu^ y. Lloydf 8 B. & C. 798.

contenteth itselfe with the immediate (n) Fletcher t. InglUf 2 B. & A. 315.

cause, and judgetfa of acts by that, with- This case is said, in Magnus v. Buttemer,

out looking to any further degree." See ubi supra^ to have been decided on the

also Heyman ▼. Parish, 2 Camp. 149 ; principle that the occurrence was ac-

Green v. BhuUe, Peake, 278, 8rd edit ; cidental.

Hodgson y.Maleoim, 2 N. R. $36 ; Nay- (o) Hahn v. Corbett, 2 Bing. 205.

hr T. Palmer, 8 Ex. 789 ; 10 Ex. 382 ; (p) Butler v. Fisher, 3 Esp. 67.

Thompson v. Hopper, 6 E. 8r B. 987, and {q) Walker t. Maitland, 5 B. & A.

the cases cited below, which illustrate 171 ; Bishop v. Pentland, 7 B. & C.

this rule. 219 ; see also Heyman v. Parish, 2 Camp.

(A) Thompson r. Whitmore, 8 Taunt. 149 ; Dixon t. Sadler, 5 M. & W. 405 ;

227; Magnus v. Buiiemer, 11 C. B. 8M.&W.895; The General Marine In^

876. surance y. Sherwood, 14 Howard ( Amer.)

(0 Phillips ▼. Barber, 5 B. & A. 161. 852.

(At) See the judgment of Lord Elkn- (r) Smith r. ScoU, 4 Taunt. 120.



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320 INSURANCE.

against) but from the vice of the subject of insurance ; as where
a ship is sent to sea in a state not fit for the particular voyage,
so that without encountering any more than ordinary risk, she
is obliged to put into a port for repair (s) ; nor are they liable
when the misconduct of the assured is the efficient cause of the
loss, although the immediate cause of it be a peril insured
against ; for the maxim, " in jure non remota causa sed proxima
spectatur" can never be applied where it contravenes the funda-
mental rule of insurance law, that the insurers are not liable for
a loss occasioned by the wrongfiil act of the assured (t). T^e

/underwriters are not liable for injuries caused by rats(t«), or
worms (x\ The mere remoteness, however, of the cause, if
there be no other independent cause intervening, will not pre-
vent its being considered as the cause to which the loss is to
be attributed. Thus, where a vessel laden with hides and to-
bacco, shipped water which rendered the hides putrid, and the
gas which escaped from them injured the tobacco, it was held
that the damage was one which resulted, although not imme-
diately, from the perils of the sea (y). And where the payment
of a sum insured depended upon the safe arrival at certain ports
of some Chinese emigrants, and they mutinied during the
voyage, seized on the ship and refused to proceed on their des-
tination, it was held that this piratical seizure of the ship
(which was a peril covered by the policy) must be deemed to be
the real cause of the loss of the sum insured, although the
coolies might, if they had been so minded, have returned to the
ship after the seizure, and have proceeded in her on the
voyage (z).

(«) Fawcus V. Sar^ldt 6 £. & B. Company » 6 Ex. 451. From this and the

192. other cases it would seem that the true

{t) See the judgment in Thompson y. application of the maxim **cinua proxi'

Hopper, 6 £■ & B. 937. In these cases ma, 4^," to the law of insurance, is this,

the maxim cited in the text is qualified — where there are two really indepen-

by another legal maxim, *' dolus cir- dent causes moving to the loss, tiie last

cuitH non purgalur,** lb. of which alone would have been suffi-

(u) Hunter v. Potts, 4 Camp. 203 ; cient to cause it as, for instance, where

see also Laveroni y. Drury, 8 Bx. 166, there is a stranding and a consequent

and the foreign authorities there cited. capture, or the like, the rule applies ;

(x) Rhohl ▼. Parr, 1 Esp. 444. In where, however, there is but one causa

Phillips on Ins. c. 13, s. 8, it is oh- causans, its mere remoteness, or the fact

berved, that if the injury to the ship by that its effect is increased or accele-

worms arose from the loss by a sea peril rated by other causes having no inde-

of the protection of the copper sheath- pendent operation, does not make it a

ing, the insurer might reasonably be eotwa remota within the meaning of the

charged. See also hazard v. N, E. Ma- rule. See also the judgment in Tkomp^

rine Insurance Company ^ 1 Sumner (Ame- son v. Hopper, 6 £. & B. 937.

rican) Rep. 218. (s) Naylarv. Palmer,9Ex,7Z9; SLC^

(jf) Montaya v. The London Jssuranee Cam. Scacc. 10 Ex. 882.



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IXSITRANCE. 321

Upon the same principle it has been decided that the insurer
of goods is not liable when they are sold by the master to
defray the expenses of repairs rendered necessary by a tempest;
for although the same sea peril occasioned the damage for the
reparation of which the goods were sold^ the want of funds
almndey obliged the captain to have recourse to the sale of the
goods (a). Where a ship insured came into collision with /
another vessel, and an arbitrator awarded that each ship should ;
bear half of the a^regate loss, and by reason of this decision \
the ship insured had to pay a balance to the other ship, this loss /
was held not to be covered by the policy (6). It was also held
in the same case, that the underwriters were not liable for the
wages and provisions of the crew whilst the ship was detained
in port in order to repair other damage done to her by perils of
the sea (c).

Losses which do not fall within the words ^^ perils of the
seas," are often covered by the general terms which follow these
words in the ordinary policies ; namely, "all other perils, losses,
and misfortunes/' &c. (d). The underwriters are not liable under
the ordinary policies for losses occurring an shore to goods
landed for trading purposes (e).

In the absence of any express stipulation in the policy, a Presumptions



vessel which is not heard of for a reasonable time is presumed
to have perished by a peril of the sea(/). What is such a
reasonable time as to give rise to this presumption depends, not
upon any fixed rule of law, but upon the circumstances of each
particular case(^). The Courts will not act on mere rumours;
it must be shown that no intelligence has been received from

(a) Powell ▼. Gudgeon^ 5 M. & S.4dl ; 5 M. & S. 461 ; Phillips v. Barber, 5 B.

Sarquy t. Hobscn, 4 Bing. 131 ; see also & A. 161. But the losses were in these

Benson y. Duncan, 6 Ex. 644. cases ejusdem generis as those insured

{h) De Vaux v. Salvador, 4 A. & E. against. See 2 Wms. Saund. 202 a,

420 ; General Marine Insurance Company note ( 14).

▼. Sherwood, 14 Howard (American^ {e) Harrison v. Ellis, 7 E. & B. 465.

352. A clause is now frequently inserted (/) Green v. Brown, 2 Str. 1199;

in policies, by which the underwriter Newhy v. Read, 1 Park on Ins. 106.

undertakes to be liable for damages {g) Houstman v. Thornton, Holt, 242.

which the vessel insured has become By the French law, the assured may, in

liable to pay by reason of a collision. the case of ordinary voyages, abandon

This is known as the running-down if he receives no news of the ship for a

clause. See as to the construction of year after her sailing, or for any one

inch a clause, Thompson v. Reynolds, entire ^ear. In long voyages the period

7 K. & B. 172. fixed is two years. Code de Comm.

(c) De Vaux v. Salvador, 4 A. & E. Art. 375. See as to the distinction

420. between ordinary and long voyages, ih,

((/) Ante, p. 293. Cullen v. Butler, Art 377.



as to loss.



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322 INSURANCE.

persons capable of giving an authentic account. Proof that a
few days after the ship's sailing a report was heard at the place
whence she sailed that she had foundered, but that the crew
were saved, was held sufficient prima facie evidence of a loss by
perils of the sea, although the assured did not call any of the
crew, or show that he was unable to procure their attend-
ance {h). And where evidence was given that an outward
bound vessel had not been heard of in this country for nearly
two years after she had sailed, it was held that the jury might
presume her loss, and that the plaintiff need not call witnesses
from her port of destination to prove that she had never arrived
there (i). In all these cases, however, the insurer must prove
that when the vessel left port she was bound upon the voyage
insured (A). If, after the underwriters have paid as upon a lost
ship, she re-appears, she will be treated as abandoned, and as
belonging to them (Z).

Fire. The insurers are liable for a loss by fire, whether it be occa-

sioned by the act of God, as by lightning or other unavoidable
accident, or by the negligence of the master or mariners (m).
They are also liable if the vessel be burnt in the discharge of a
duty to the state ; as where a ship chased by a privateer was
burnt by the master, in order to prevent her falling into the
hands of the enemy (n).

In a case at Nisi Prius, it was ruled by Lord EUenborough
that if goods are destroyed by a fire arising from their having
been shipped in such a state as to generate heat and ignite
spontaneously, the assured cannot recover ; as the loss is in this
case the consequence of his own improper act (o).

Eaemies. A loss by enemies occurs when the vessel is captured, or

(k) Koster v. Reedj 6 B. & C. 19. were in a warehouse upon a sand bank

(i) Twemlow v. Oswiitf 2 Camp. S5, in the Canton River, where they had

(k) Cohen v. Hinckley t 2 Camp. 51 ; been placed in accordance with the

Marshall v. Parker^ ib* 69; Koster v. usage of the voyage. This was held to be

InneSf R. & Moo. 333. a loss by fire during the voyage. Pelljfw*

(/) Houstman v. Thornton, Holt, 242. The Royal Exchange Assurance Company,

(m) Busk V. The Royal Exchange As- 1 Burr. 341. But under the ordinary

surance Company, 2 B. & A. 73. policy the underwriters are not liable

(«) Gordon v. Rimmington, 1 Camp. for a loss by fire occurring on shore to

123. An insurance on the ship, body, a portion of the cargo which has been

Uckle, &c., with libertv to stay at any landed. Harrison v. ElUs, 7 £. & B.

ports or places, was held to cover a loss 465.

where the sails, tackle, &c., of a ship were (o) Boyd v. Dubois, 3 Camp. 133 ; see

coasumed by an accidental fire while they also Austin v. Drewe, 6 Taunt 436.



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INSURANCE.

injured jure belli; that is, by the subjects of a country at war
with that to which the ship insured belongs (p) ; and an actual
capture made by a lawful authority, although at a time when
war had not been declared against the country to which the
ship belonged, has been held to be within a warranty against
" capture and seizure" contained in a policy of insurance (q).
But a seizure by a foreign government for contravention of
revenue laws, does not fall within the word "capture" (r). The
assured on goods may recover for a loss by capture, although
it was effected through a barratrous agreement made by the
master of the ship, to which the assured was no party (s). An
insurance in this country against British capture is, as we have
seen, yoid(0* In accordance with the rule that the proximate
cause is that to which a loss is to be attributed, it has been
held that where a ship was driven by stress of weather on an
enemy's coast, and was consequently captured, the loss was a
loss by capture, and not by the perils of the sea (u).

Although the title to a ship by capture is not complete until
condemnation (v), the right of the assured to recover under the
policy for a capture does not depend upon that step being taken,
but accrues as soon as he has sustained an actual 1oss(j;).
Where the captain, after capture and re-capture, acting with bona
fidesy sold the ship and cai^o, it was held that the assured might
recover as for a total loss(y). And a total loss by abandon-
ment, made upon su£Scient ground after capture, will not be
converted into an average loss by a return of the vessel under
conditions which make it uncertain whether the assured may
not have to pay more than her worth (-sr). The underwriters

(p) See 1 Park on Ins. 108. See also T. R. 413.

post, p. 340, the cases decided upon the (z) McTver v. ffendertorii 4 M. & S.

warranty of freedom from seizure or 576 ; see also Cologan v. The London At»

capture. turance Company, 5 M. & S. 447. The

iq) Powell V. Hyde, 5 E. & B. 607. cases establish the principle, that if

(r) Matthie ▼. Potii, 3 B. & P. 23. once there has been a total loss by cap-

<«) Arcangelo y, Thompson, 2 Camp. ture, this is construed to be a permanent

620. total loss, unless something afterwards

(/) Ante, p. 290. occurs by which the assured either has

(u) Green v. Elmslie, Peake, 278, 3rd the possession restored, or has the means

edit. of obtaining such restoration. It is

(v) Ante,'o. 39. immaterial that he has the right to ob-

{x) See the judgment of Lord Mans- tain it ; for if that wer^ enough to pre-

field in Goss v. Withers, 2 Burr. 694 ; vent a total loss, there could never be

see also Hamilton v. Mendes, ib. 1198, a total loss in the case of a capture by

and Pondy. King, 1 Wils. 191. pirates, who have never a right to the

(y) Milks T. Fletcher, 1 Doug. 231. possession. See the judgment of Lord

On the continuance of an embargo the Campbell, C. J., in Dean v. Hornby, 8

owner may abandon. Hoick v. Edie, 6 E. & B. 180.

y2



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324



INSURANCE.



cannot, however, be made liable for more than the actual
loss (a) ; if, therefore, before the abandonment there has been a
re-capture, so as to fix the loss at that time as an average only,
the assured cannot recover as for a total loss (ft), although, when
he gave notice of the abandonment, he had received intelligence
of the capture, but not of the re-capture (c). So, where the
notice of abandonment was not assented to by the underwriter,
and before action brought, the ship was re-captured and arrived
at her destined port, having sustained only a partial loss(rf).
A re-purchase by the owner after a capture is illegal, for it
amounts to a ransom ; and the owner cannot recover from the
insurers the amount which he has paid as purchase-money {e).
They are liable, however, for payments made bond fide to com-
promise a suit of condemnation (/).



Pirates, rovers
and thieves.



The next protection is against " pirates, rovers, and thieves."
We have already said that pirates are considered as " hostes hu-
mani generisy" and therefore are never recognized as enemies (^);
nor are they included in the expression "kings, princes, and
people;'* for the latter word is to be construed according to the
maxim " Noscitur a sociis'' (A).



Jettisons. Jettison occurs where goods are thrown overboard for the

preservation of the ship and cargo, or for any other su£Scient
cause (i); as, for instance, to prevent her capture by an enemy (A).
In this case the loss is covered on the same principle on which
the destruction of the vessel herself is protected, where she is
burnt to prevent her falling into the hands of an enemy (/).



Arrests, re-
straints, &c.



The words " arrests, restraints, and detainments of all kings,

(/) Berens v. Ruckerf 1 W. Bl. 318.
(g) See ante, pp. 38 and 228 ; see



(a) See the judgment of Lord Mans«
field in Goit v. Withers^ 2 Burr. 694.
(6) Hamilton v.Mendes, 2 Burr. 1198.

(c) Bainbridge v. Neilsonj 10 East,
329. In this case the property was
actually restored before the action was
brought. The owners may recover for a
total loss, even after a re-capture, if up
to the commencement of the action they
have neither had actual possession nor
the means of obtaining it. Dean v.
Hornby, 3 E. & B. 180.

(d) Patterson v. Ritchiey 4 M. &.S.
393 ; see also McMastert v. Shoolbred^ 1
Esp. 237.

(e) Haveloek ▼. Rockwood, 8 T. R.
268.



also Molloy, B. 1, & 4; 1 Beawes Lex
Merc. 351, and DeMn v. Hornby, uhi
supra.

{h) Nesbitt v. Lushington, 4 T. R. 783.

(t) See antey p. 279.

(k) Butler v. Wildman, 3 B. & A. 399.
It was not necessary, however, in that
case to decide the ]^int, since, if the
loss did not fall within the meaning of
the word "jettisons" in the policy, it
was covered by the general wcnrds " all
other losses and misfortunes,'* which
were also used in it.

(/) See ante, p. 32(2.



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INSURANCE. 325

princes, and people," are poperly applicable only to the ruling
power of a country, and not to pirates or any other lawless
power (m) ; they apply, however, not only to hostile acts, but
also to those which are committed by the government of which
the assured is a subject ; as, for instance, to the seizure of the
Tessel by the owners' government for the purpose of using her
as a fire-ship (n).

An insurance in this country by a foreigner against a British
embargo would probably be held to be void upon the same prin-
ciple as an insurance against British capture (o).

It was at one time considered that a foreigner could not
insure in this country against the acts of his own government,
on the ground that he himself was to be considered as a party
to them ip) ; but later cases show that this is only an implied
exclusion from the reason and fitness of the thing ; and that if a
particular commerce is known to the underwriters to be carried
on, notwithstanding its prohibition by the foreign state, they
are liable to a foreign assured on the policy (q). Such a risk,
howeVer, is not protected if the nationality of the assured is not
conununicated 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 (r).

The detention must be the immediate cause of loss ; if, there-
fore, there is an embargo at the port of destination which com-
pels the master to avoid it, and the object of the voyage is
thereby defeated, the assured is not protected {s) ; nor can the

(«i) Nesbitt ¥. Lushingtm, 4 T. R. vemment. In America it has been

783. held that there is no objection to in-

(») Greem v. Yoimg, 3 Lord Raym. lurances on this ground. 3KentComm.



Online LibraryCharles Edward Pollock Frederic Philip MaudeCompendium of the law of merchant shipping → online text (page 41 of 101)