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;1 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.2

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.

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.2 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 "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: " Ex 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 no 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.

2 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.1 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 66 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.

2 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 was apparent, it was held to be a stranding. In another 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

And it has been held that if the vessel be stranded voluntarily, and of set purpose, this may be a stranding within the policy.1 And we see no good reason why this should not be considered as a stranding to all intents and purposes, provided only that it be done in good faith, and in the exercise of a reasonable dis

cretion.

In some policies, both in England and in this country, there seems to be some disposition to return to the original meaning of the provision, by using the word "bilging," with or instead of the word "stranding." We suppose this word to be the same with "bulge," and to mean that part of a thing which swells or protrudes out.2 We should say that the bilge of a ship was that part where her bottom rounds or swells out; and that she is "bilged" in nautical phrase, when by some injury this part is broken so as to let in water. We place in our notes the only case which touches this question; and more adjudication is necessary to determine certainly the meaning of this word.3

C. Of the Clause limiting the Liability of the Insurers to a certain Amount.

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It is not uncommon for policies, both in England and in this country, to contain a further clause, which is also considered as a part of the memorandum, that the articles therein enumerated shall be "free from average under five per cent.," or some other limitation.

nary course that the underwriters are liable for all damage sustained by taking the ground at the ebbing of the tide. Corcoran v. Gurney, 1 Ellis & B. 456, 16 Eng. L. & Eq. 215. And in Barrow v. Bell, 4 B. & C. 736, 7 Dowl. & R. 244, where the vessel in entering the harbor struck against the fluke of an anchor which did not retard her progress but caused her to spring a leak, and she was afterwards moored in deep water, but being in danger of sinking, was warped into shoaler water where she took ground, it was held to be a stranding. See the next note.

1 Bowring v. Elmslie, 7 T. R. 216, note; Burnett v. Kensington, 7 T. R. 210. 2 Worcester and Webster both give "bilge" and "bulge" as synonymous terms. And in Burnett v. Kensington, 7 T. R. 210, it was averred that the vessel was "stranded, bulged, and destroyed" by the perils of the sea.

In Ellery v. Merchants' Ins. Co., 3 Pick. 46, it was held that there must be a breach in the vessel to constitute a "bilging," and that it was not enough that the vessel was thrown on her beam ends, and that the seams opened and water entered, but it was not decided in what part of the hull the breach must be.

The purpose of this is similar to that of the provision about stranding; it is that the insurers shall not be called on for such small losses as may very probably have arisen from the natural deterioration of perishable articles.

It is also a frequent provision, that the insurer shall not be liable for a loss on any property insured, unless that loss amounts to a certain percentage; and the object of this is to protect the insurers from frivolous demands; and from claims for loss arising more from wear and tear than from perils insured against.

Among the questions which have arisen under these provisions, the most important is, whether successive losses may be added together to make up the required percentage. And the weight, both of reason and authority would lead to the conclusion that successive losses may be so added, and that the insurers are liable if the aggregate equals the five or other per cent. required.1

If different articles are insured in the same policy under one valuation, free from average under a certain per cent., it has been held there must be a loss equal to the percentage on the whole

1 A distinction in this respect may exist between the ship and the cargo, because it is said that the damage done to the ship at different times may be more easily discriminated than the damage to the cargo, which can only be discovered at the end of the voyage. In Blackett v. Royal Exch. Ass. Co., 2 Cromp. & J. 244, 2 Tyrw. 266, where insurance was effected on a ship free from average under 31. per cent., it was held that the underwriters were liable if the several partial losses, each under 31. per cent., in the aggregate amounted to more. This decision was given on the ground that in the absence of usage or authority to the point, the rule that exceptions must be taken most strongly against the persons for whose benefit they are introduced, should govern. In Brooks v. Oriental Ins. Co., 7 Pick. 259, decided four years previous, it was held that in regard to the ship distinct and successive losses were not to be added together, unless they happened at one time or in one continuous gale or storm. The court said it might "be otherwise in regard to the cargo, because the actual damage received at different times, cannot be ascertained during the passage, or when it happens, but only when the cargo was unladed." In Donnell v. Columbian Ins. Co., 2 Sumner, 366, it was stipulated that the underwriters should not be liable "for any partial loss on other goods, or on the vessel and freight, unless it amount to five per cent., exclusive in each case of all charges and expenses incurred for the purpose of ascertaining and proving the loss." The court held that the words "in each case "referred to the three subjects insured, and required a damage of five per cent. to justify a claim in each case, and that they did not mean at each time of loss." In respect to the cargo, Mr. Justice Story held that the successive losses in the course of the voyage were to be added together. He also was of the opinion that the same rule applied to the ship, though the point was not decided.