« PreviousContinue »
the nature of the loss determines this question. If a rope gives way, generally, it would be because it was not strong enough. If timbers are broken, the injury would generally imply extraordinary violence. If the damage or loss fall on the spars, the sheathing, or upper works, or boats, there must always be an inquiry into the circumstances of the case, into the degree of violence which caused the loss, and the manner in which the lost article was secured against injury. Thus, if a boat is lashed on deck, only extreme violence would tear it away. If hung from the davits, at the stern or side, it is easily lost by no uncommon peril, and it may be a question whether it was so secured at that very time, as to be sea-worthy, that is, able to encounter the perils it must be expected to meet. So the indefinite deterioration of the ship by straining, the opening of seams, or buttends, without a storm, or violence, and the like, are not covered by the policy. Another rule, quite as universal, exempts the insurers from all liability for a loss caused by the qualities of the thing lost. Articles of commerce which are subjects of insurance, differ so materially in their liability to decay, that provision is made for this by the memorandum, as we have seen.
It is also a rule, that the insurers are liable for no subjectmatter of insurance, which is destroyed by reason of its own inherent defects, or tendencies. But this rule does not apply to tendencies which are called into activity only by a peril insured against. Thus, if hemp insured, burns up or rots from spontaneous ignition or fermentation, it being known that this may happen if the hemp be damp, but not if it be dry, the question would be, whether it was damp or dry when it was put on board. If it were then damp, or if it were then dry but became damp through the fault or defect of the ship, the insurers would not be liable, either for the hemp, or for the ship, if the burning hemp destroyed the ship. But if the hemp were dry when laden, and was afterwards wet by reason of the straining of the ship in a storm, or by the shipping of a sea, or any like peril, then the insurers, whether on the ship or cargo, would be liable.3
1 See supra, p. 214, n. 4.
8 In Boyd v. Dubois, 3 Camp. 133, insurance was effected on hemp, on a voyage from London to the coast of Devonshire. On tha voyage, a fire broke out in the night,
OF LOSSES ARISING FROM A PROHIBITED OR CONTRABAND TRADE.
This subject has already been considered in some of its relations. Here we would remark, that insurers are responsible for losses caused by a breach of the laws of foreign countries respecting revenue and trade, unless some express exception is · added in their favor, provided they had, in any way, either notice or knowledge, or should have inferred from facts in their
possession, that it was the intention of the insured to engage in such a trade. And even if there be a warranty against probibited trade, if goods specifically named are known to be prohibited at the port to which the ship is expressly destined, it has been held that the insurers are liable for a loss of the property by a seizure for a disregard of the prohibition. It is, however, an
and the greater part of the cargo was consumed. Lord Ellenborough said: “If the hemp was put on board in a state liable to effervesce, and it did effervesce, and generate the fire which consumed it, upon the common principles of insurance law, the insured cannot recover for a loss which he himself has occasioned.” * See ante, p. 19, n. 1.
Seton v. Delaware Ins. Co., 2 Wash. C. C. 175. Insuranconwas effected on cargo 'to ports in Cuba and back, declared in a written clause to be on goods and specie, both or either, valued at a certain sum, with the usual printed clause of warranty against any charge or loss on account of any illicit or prohibited trade. Mr. Justice Washington admitted that the printed and written clauses were to be construed so as to give effect to both, but held that as specie would have been included in the general term goods, and as specie was known to be prohibited, the clause meant "we do not know what the goods are, we therefore do not insure them against illicit or prohibited trade, but we do insure the specie.” In a nisi prius case in New York, the decision was put on the ground that the printed clause was controlled by the written. Van Ness, J., said: “There can be no question but that the insurers assume the contraband risk, when contraband articles are set forth and expressly named in the policy. Such specification must be considered as notice to the insurer, and will control the printed clause." Howland v. Comm. Ins. Co., Anthon, N. P. 26. But in Goicoechea v. Louisiana State Ins. Co., 18 Mart. La. 51, the court held that as the printed and written words would stand together, the latter should not control the former, but the insurers should be held only for loss caused by perils of the sea on the voyage, and not for illicit trade, although the cargo was described in the policy as Spanish, and was condemned on that account. And it is clear that where the warranty is in writing, VOL. II.
unquestionable rule, that if the policy contains an exception of all risks from contraband, war, or illicit or prohibited trade, and a part of the property insured is exposed to that danger, and a loss accrues therefrom to that part or to the residue, the underwriters are not held, unless there is something in the policy which must be regarded as controlling or limiting that exception. If such trade is intended, and no notice, and nothing equivalent to notice, is given to the insurers, they are not responsible for a loss caused by such trade. But if without any such intention, there was an actual violation of some foreign law without the knowl. edge or the default of the owner or his agents, the insurers may be responsible. But the question is one of some difficulty. Thus, if war begins after the policy is made, the insurers are held for any loss caused by violation of any ordinances or rules springing from a state of war, until such notice reaches the insured or his agent, as makes the violation of these rules or ordinances his default. If there is a loss by capture for a
the underwriters are not liable. Church v. Hubbart, 2 Cranch, 187, 232; Higginson v. Pomeroy, 11 Mass. 104.
1 See post, section 9.
2 Thus in Andrews v. Essex F. & M. Ins. Co., 3 Mason, 6, 17, Mr. Justice Story said: “It is perfectly settled that the underwriters, by the general terms of the policy, are not liable for any loss arising from foreign illicit trade, unless the policy be underwritten with the full knowledge on their part that such was the object of the voyage. This is the general doctrine of foreign maritime writers, and has been recognized in the fullest manner by the common law tribunals.” See 2 Valin, lib. 3, tit. 6, art. 49; Richardson v. Maine Ins. Co., 6 Mass. 102; Parker v. Jones, 13 Mass. 173. See also, ante, p. 169, n. 3.
3 Wood v. New England Mar. Ins. Co., 14 Mass. 31. In this case the policy contained the following memorandum : “It is understood the company are not liable for any loss or expense arising from the violation of the existing laws or regulations of any of the belligerent powers restricting neutral commerce.” The vessel was captured by a French vessel under the Milan decree, which had not been promulgated at the time the policy was made, on the pretext that the ship had come from a British port, and had been spoken with by British cruisers. It would appear by the language of the court on page thirty-six that the policy contained the usual clause insuring the vessel against arrest and detention, and the only question, therefore, was whether the Milan decree was an existing regulation within the memorandum; and the court held that it was not.
In Archibald v. Mercantile Ins. Co., 3 Pick. 70, and in Parker v. Jones, 13 Mass. 173, it was held that if a voyage is prohibited, and both parties are ignorant of the fact, the insurers are not liable. And in a case where a vessel sailed for a port which was at the time blockaded, both parties being ignorant of the fact, and the master, on
pretended violation of a blockade which did not actually take place, and the capture is therefore illegal, it would seem that the insurers should not be discharged.
OF THE MEANING AND EXTENT OF PERILS OF THE SEA.
A. Of Perils generally. Those usually enumerated in American policies, are perils of the sea, fire, barratry, theft, piracy, capture, arrests, and detentions. The general clause “ all other perils” is usually restricted
learning it, discontinued his voyage and sailed for home, but was captured on the way, it was held that the underwriters were only liable for losses by perils insured against up to the time of the discontinuance of the voyage. Richardson v. Maine Ins. Co., 6 Mass. 102. In Andrews v. Essex F. & M. Ins. Co., 3 Mason, 6, 18, the port of destination was restricted from foreign trade, but it was believed by both parties that the trade would be lawful before the vessel arrived. In point of fact, the port was not open and the vessel was seized. It was argued that the underwriters, having insured the voyage to the port of destination, must be presumed to warrant an entry into the port for the purpose of inquiry. But Mr. Justice Story said: “The true principle seems to me to be this, that the policy guarantees an indemnity in going to the port against all losses by the perils insured against; and unless the peril of illicit entry at the port be contemplated as one of the risks insured against, the underwriters are not held.” See also, in respect to the question whether a denial of entry at the port of destination is a risk within the common policy, post, section 7.
1 Sawyer v. Maine F. & M. Ins. Co., 12 Mass. 291.
2 The common clause in the English policies enumerating the perils is as follows: “ Touching the adventures and perils which we, the assurers, are content to bear, and do take upon us in this voyage, they are of the seas, men-of-war, fire, enemies, pirates, rovers, thieves, jettisons, letters of mart and countermart, surprisals, takings at sea, arrests, restraints and detainments of all kings, princes, and people, of what nation, quality or condition soever, barratry of the masters and mariners, and of all other perils, losses, or misfortunes, that have or shall come to the hurt, detriment, or damage of the said goods and merchandises and slip,” etc. Vaucher's Guide, Mar. Ins. 88; 2 Arnould, Ins. 792. This clause has been modified in form in most of the American policies, and some changes have been made in the substance.
The perils usually enumerated in the Boston policies are, “ of the seas, fire, enemics, pirates, assailing thieves, restraints and detainments of all kings, princes, or people, of what nation or quality soever, barratry of the master, unless the insured be owner of the vessel, and of mariners, and all other losses and misfortunes, which have, or shall come to the damage of the said or any part thereof, to which
in its extent and operation by the enumerations of the perils in the policy, and embraces only other perils of the like kind. The phrase, perils of the seas, covers all losses or damage which arise from the extraordinary action of the wind and sea, and from all inevitable accidents directly connected with navigation, excepting those provided for in other parts of the policy, as capture and the like. But the destruction of a ship by worms is not a “ peril of the sea,” because it is not an extraordinary circumstance. In certain waters, and at certain seasons, it is a natural result of causes always in operation, which are to be expected, and may be perfectly prevented by adequate precautions; and it may be likened to a loss by wear and tear. And so, if loss or damage be caused by rats or other vermin, it would seem that the insurer would not be liable unless the owner or the master had done all that could be done by any reasonable exertions or means to extirpate them, and without success.
insurers are liable by the rules and customs of insurance in Boston.” And they are substantially the same in our other commercial cities.
1 What are ordinary, and what extraordinary perils, is a question of much difficulty. In Magnus v. Buttemer, 11 C. B. 876, 9 Eng. L. &. Eq. 461, a vessel in the ordinary course of her voyage, moored in a tide harbor, and took ground when the tide fell. In consequence of this she was bogged and strained all over. It was held that the underwriters were not liable. In Potter v. Suffolk Ins. Co., 2 Sumner, 197, under very similar circumstances, Mr. Justice Story held, that unless there was inherent weakness in the vessel, such damage could only be occasioned by an unusual and extraordinary accident in grounding upon the ebbing of the tide, which would be a peril of the sea. And in Bullard v. Roger Williams Ins. Co., 1 Curtis, C. C. 148, Mr. Justice Curtis held that, although the law required vessels to be sufficiently strong to resist the ordinary action of the sea in the voyages for which they might be insured, yet that the ordinary action of the wind and sea did not mean the winds and sea to be ordinarily met in the voyage insured. He accordingly held that heavy cross seas were not the ordinary action of the sea within the meaning of this rule, however common they might be in the voyage insured. And in Washington Mut. Ins. Co. v. Reed, 20 Ohio, 199, underwriters on whiskey on board a flat boat were held liable for a loss occasioned by the swell of a steamboat, although the steamboat and the swell were of ordinary size and of constant occurrence.
2 Schieffelin v. New York Ins. Co., 9 Johns. 21.
3 Rohl v. Parr, 1 Esp. 445; Martin v. Salem Mar. Ins. Co., 2 Mass. 420; Hazard v. New England Mar. Ins. Co., 1 Sumner, 218, 8 Pet. 557.
* In Hunter v. Potts, 4 Camp. 203, goods were insured on a voyage from London to Honduras with leave to touch at Antigua. While at the last-named port, the timbers of the vessel were so damaged by rats that a survey was called, and the vessel condemned. Lord Ellenborough held that the underwriters were not liable. Chancellor Kent, 3 Comm. p. 300, says: “The better opinion would seem to be, that an insurer