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if not arbitrary. And salt,” I “ roots,” and “fruit,"3 have given

“ , rise to similar questions. We state in our notes, all the decisions which bear upon this subject. If one species of an article is mentioned, this may exclude another. In regard to what articles are considered as perishable in their own nature, it would depend very much on the usage of the trade.”

B. Of the Clause respecting Stranding. As the memorandum articles are all of them of a perishable nature, and especially liable to a partial deterioration, insurers desired, many years since, to protect themselves from liability for injury to them, unless it was certain that this was not caused by inherent defect or decay. For this purpose, it was provided that the memorandum articles should be “free from average, unless general, or the ship be stranded." 6

The original intention of this provision cannot be doubted. It was, that the insurers should not be held for any partial loss on these perishable articles, unless this was caused by a peril of


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1 Saltpetre has been held not to be included in the term “salt.” Journu v. Bourdieu, Marsh. Ins. 224, note, Park, Ins. 149.

2 Coit v. Commercial Ins. Co., 7 Johns. 385, where a usage being shown, that sarsaparilla is not considered a perishable article, it was held, not to come within the

roots.” This word was considered by the experts to mean beets, onions, etc. 3 In De Pau v. Jones, 1 Brev. 437, dried prunes were held to be “fruit.” The voyage was from Bordeaux to Charleston. Oranges also come within this term. Humphreys v. Union Ins. Co., 3 Mason, 429.

4 Baker v. Ludlow, 2 Johns. Cas. 289, where the mention of “dry fish,” was held to exclude “pickled fish.”

5 In Nelson v. La. Ins. Co., 17 Mart. La. 289, parol evidence was admitted to show whether flour was an article perishable in its nature. In Robinson v. Commonwealth Ins. Co., 3 Sumner, 220, and Williams v. Cole, 16 Maine, 207, potatoes were held to be perishable articles. In Baker v. Ludlow, 2 Johns. Cas. 289, the court said : “ The subsequent words, all other articles perishable,' etc., are not applicable to the articles previously enumerated, nor can they repel the implication arising from the enumeration of them.”

6 The memorandum clause was inserted in English policies in 1749, but the clause relative to stranding was struck out a few years afterwards, in the policies of the London Assurance, and the Royal Exchange Assurance Companies. See Stevens & Benecke on Average, Phillips' Ed. 395. The London Assurance Company has since reinserted it, and the Royal Exchange Assurance Company have modified the clause, so that it reads : “free from all average, etc., unless general, or otherwise specially agreed.” 2 Arnould, Ins. 852.

such a nature, as to exclude all probability that the loss was due to the nature of the goods. Such a loss it was intended to designate by the word “stranding;” and we may suppose the word to have been equivalent in the minds of those who first used it, to “ wreck."

It seems certain that the insurers intended to say, that they should not be liable for a partial loss on these goods, unless the ship was stranded or wrecked, and the goods thereby injured. The courts did not, however, incline to this view, but adopted the more literal construction and interpretation of the phrase, and a meaning was given to it, which was far from that originally intended.

Thus, it seems now to be settled, that the phrase is to be read, as if it ran thus: “goods to be free, etc., unless the ship be stranded.” And then this stranding is to be regarded as a condition, and if it takes place, the whole effect of the provision is exhausted, and the insurers are liable, if there once be a stranding, for any partial loss, in the same manner as if this provision had no existence. The reason given for this is, that in case of stranding and partial loss, it would be impossible, or very difficult at least, to say how much of the injury to the goods arose from their own perishableness, and how much from the stranding This construction is now well settled; but we do not think that it rests on good grounds.

1 The first case after the clause was introduced, was in 1754, before Lord Chief Justice Ryder, Cantillon v. London Ass. Co., cited 3 Burr. 1553, where it is said the court “ and a special jury looked upon this as a condition, and that by the ship's being stranded the insurer was let in to claim his whole partial average loss.” In 1764, the question arose whether the exception, “ free from average, unless general,” let in a partial loss, where there was also a general average. Lord Mansfield said: “The insurer is liable to all losses arising from the ship being stranded, and in all cases where there is a general average; but all other partial losses are excluded by the express terms of the policy.” Wilson v. Smith, 3 Burr. 1550.

The same reason would seem to apply here, as in the case of stranding, and the fact, that the insured was permitted to recover only the damage sustained by the general average, which ruling has not been controverted to this day, shows, we think conclusively, that the intention was to exclude all partial loss, except that sustained in consequence of a general average, and by stranding.

In 1790, came the nisi prius case of Bowring v. Elmslie, 7 T. R. 216, n., before Lord Kenyon, C.J. The insurance was on fish. Lord Kenyon charged that “the stranding of the ship, put the fish in the same condition as any other commodity not mentioned in the memorandum, and the underwriters were liable for all damage sustained by it; for


So, it is settled, that if there be a stranding, the insurers are liable, although the partial loss took place at a different time, from a different cause, and at a different place. Such, at least, is the law in England;? but some question exists, whether in this country, a construction would not be given to this clause, upon this point, more in harmony with the intention of those who originally used it. In this country, the question is not of so much importance, because the policies either provide that the loss shall happen by the stranding, or the clause in regard to stranding is struck out altogether. And in England, if the stranding take place after the memorandum articles have ceased to be at risk, and the adventure as to them has terminated, it is not a “stranding," within the policy.?

The phrase," or the ship be stranded," is construed so far

otherwise, there would be very considerable difficulty in ascertaining how much of the loss arose by the perils insured against, and how much by the perishable nature of the commodity, which was the very thing the memorandum was intended to prevent." The defence in this case was two-fold : 1st. That the ship had been fraudulently stranded; 2d. That the damage to the fish was not occasioned by the stranding. The jury found for the defendant, on the ground, that the stranding was fraudulent.

The next case, in point of time, is Nesbitt v. Lushington, 4 T. R. 783, decided in 1792, where a mob came on board the vessel, and weighed anchor, upon which the vessel drove upon a reef of rocks and was stranded. The mob compelled the captain to sell all the cargo at a price less than its value, except about ten tons, which was damaged by the stranding, and was thrown overboard. It was held, that the insured could only recover for this portion, which was injured by the stranding. In Burnett v. Kensington, 1 Esp. 416, 7 T. R. 210, the vessel struck on a rock, but did not remain there, although several of her planks were started and water entered and damaged the cargo. She was afterwards voluntarily stranded by the captain, under the directions of a pilot, in order to save both ship and cargo. The ship sustained no damage from the stranding, and afterwards pursued her voyage with the greater part of the cargo. After several trials, the jury found that the ship was stranded, but that the damage did not arise in any way from it, and a verdict was found for the defendant. But the court held, that if the ship was stranded, this destroyed the exception and let in the general words of the policy. Lord Kenyon, speaking of Bowring v. Elmslie, and Nesbitt v. Lushington, said: “My two opinions that have been referred to, the one in the nisi prius case, and the other in Nesbitt v. Lushington, have no weight with me as judicial authorities, though I confess I have not been able to extricate my mind from the reasoning that led me to the conclusion in those cases."

1 See 2 Arnould, Ins. 858.

2 Roux v. Salvador, 1 Bing. N. C. 526. In this case, the goods were sold at an intermediate port, and the ship was afterwards stranded before reaching her port of destination. Held, that if there was not a total loss at the intermediate port, the subsequent stranding would not let in a claim for a partial loss. This case was afterwards reversed, but this position was not controverted. 3 Bing. N. C. 266.

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strictly that no stranding, unless of the ship itself, - none therefore of a lighter in which the goods were passing to the shore, is a “stranding” within the policy.1

But the cases have turned principally upon the meaning to be given to this word “stranding." Literally, its meaning is obvious enough. A vessel is stranded when she gets upon the strand, or shore. And as this occurs generally only when a vessel is wrecked, the word was used, as we have already intimated, in this sense.

It is not so now. Both in England and in this country, it seems to be settled, that if the ship be literally stranded, that is enough, without much reference to the length of time that she remains on shore, or any regard to the effect of this stoppage. It is true, that the courts say it is not enough that the ship did just "touch and go;” her course must be arrested, and all progressive motion must cease. But if after a few minutes of delay upon the rock or strand, she is thrown off by wind or tide, or dragged off by human aid, still she was “stranded” within the legal meaning of the policy; and this, although neither ship nor cargo were at all injured.3

So she is a stranded” if she falls and rests on piles, or any artificial fabric, as much as if she lay on a rock, or a bank or


1 Hoffman v. Marshall, 2 Bing. N. C. 383.

2 Thus in Harman v. Vaux, 3 Camp. 429, Lord Ellenborough, C. J., said: “If the ship touches and runs, the circumstance is not to be regarded. Here she is never in a quiescent state. But if she is forced ashore, or is driven on a bank, and remains for any time on the ground, this is a stranding, without reference to the degree of damage she thereby sustains.” And in M’Dougle v. Royal Exch. Ass. Co., 4 M. & S. 503, where the vessel rested but a minute and a half on the rock, it was held to be no stranding. Lord Ellenborough, C. J., said : “But I take it that stranding, in its fair legal sense, implies a settling of the ship; some resting, or interruption of the voyage, so that the ship may pro tempore be considered as wrecked.” In the same case at nisi prius, 4 Camp. 283, he said: Er vi termini stranding means lying on the shore, or something analogous to that. To use a vulgar phrase, which has been applied to this subject, if there is 'touch and go' with the ship, there is stranding.” In Lake v. Columbus Ins. Co., 13 Ohio, 48, the insurers were not to be liable for any partial loss under seven per cent. unless it happened by stranding. The vessel struck on a rock or stump, by which a hole was made in her bottom and the goods were damaged. The vessel was not delayed, and the master finding she was sinking, run her ashore. Held that there was no stranding.

? A delay on a rock of fifteen or twenty minutes has been held to be a stranding. Baker v. Towry, 1 Stark. 436. So a delay of two hours on a bank. Harman v. Vaux, 3 Camp. 429.


the shore. In one case it was held not to be a stranding where the vessel came into collision with another, and was forced ashore, where she remained an hour.2

It is not a "stranding” if she takes the ground in a tide harbor, in any usual way, and place, merely by the effect of the tides. But if extraordinary circumstances or agencies mingle with these natural and customary events, and give to them their destructive or injurious efficacy, so that the vessel comes to the ground in an unusual and perilous way, this is then held to be a “stranding." 4


1 Dobson v. Bolton, Marsh. Ins. 239, Park, Ins. 148, n. The vessel in this case rested on the piles till they were cut away.

Baring v. Henkle, Marsh. Ins. 240. It was contended, in this case, that it could only be a stranding where the ship was either cast on shore by the violence of the winds and waves, or run aground to avoid a greater danger, and this doctrine seems to have been assented to by Lord Kenyon, C. J.

3 In Kingsford v. Marshall, 8 Bing. 458, 1 Moore & S. 657, the vessel entered a tide harbor, was moored as directed, and took the ground at low tide. This was held not to be a stranding, although in taking ground she struck against some hard substance, by which two holes were made in her bottom and her cargo was injured. In Hearne v. Edmunds, 1 Brod. & B. 388, the vessel was three days in going up Cork river. She took the ground every day, and on the third day was moored at the quay. When the tide ebbed, she took ground, made a list, and lay on her broadside two tides, in consequence of which the vessel and cargo were much injured. This was held not to be a stranding, being in the usual course of navigation. See the preceding note.

* The question how far the taking ground is extraordinary in its nature, is a difficult one, and has given rise to cases of great nicety in its application. Thus, where a vessel was fastened by a rope to the pier, in order that she might take the ground in an upright position, and the rope broke, in consequence of which she fell on her side and was bilged, it was held to be a stranding. Bishop v. Pentland, 7 B. & C. 219, 1 Man. & R. 49. See also, Carruthers v. Sydebotham, 4 M. & S. 77. So in Wells v. Hopwood, 3 B. & Ad. 20, where the ship, at the time the tide was about to fall, was hauled off from the wharf and fastened by a rope from an adjoining wharf, so that she could avoid a heap of rubbish which lay near her own wharf, and take the ground in safety, but there being a strong wind the rope stretched, and when the tide fell, one end of the vessel came upon the heap, in consequence of which her seams opened and the cargo was damaged, though when the tide rose the seams closed and no damage to the ship

apparent, it was held to be a stranding. In anoth case, the vessel was going through a canal, and it became necessary in order to repair a lock, that the water should be drawn off. The vessel was moored in what was thought to be a secure place, and one where vessels were usually placed when the water was drawn off. In taking ground the vessel struck on some piles which were not known to be there. This was held to be a stranding because, said Abbott, C. J., “We cannot suppose that these canals are so constantly wanting repair, as to make the drawing off the water an occurrence in the ordinary course of a voyage.” And if a vessel is obliged to go into a tide harbor through necessity, as where she is driven in by a storm, this is so far out of the ordi

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