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policy on a ship, which, among other risks, the underwriters insured against fire, and barratry of the master and mariners, they were liable for a loss by fire occasioned by the negligence of the master and mariners: and Walker Maitland (a), where it was held that the underwriters on a policy were liable for a loss arising immediately from perils of the sea, such as the winds and waves, although remotely from the mismanagement and negligence of the master and mariners. Then the recent case of Barrow v. Bell (6) is an express authority for saying that the ship in this case was stranded, and that the damage was occasioned immediately by perils of the sea. There, the policy was on goods, with a warranty against average, unless general, or the ship should be stranded. On the voyage, the ship was driven by stress of weather into a harbour, at the mouth of which she struck upon an anchor, and was in danger of sinking: to prevent which she was warped higher up in the harbour, where she took the ground, and remained fast half an hour: and it was held, that the ship was stranded, within the meaning of the policy. Here the ship was driven into the port by stress of weather; when the tide ebbed out, she was left dry; and while in that situation she fell over, in consequence of which, when the tide rose again, the goods were wetted. It was, therefore, elearly a peril of the sea that immediately occasioned the damage. A former case of Carruthers v. Sydebotham:(c), comes still nearer to the present in its facts, though it is not stronger in principle. There, a ship, being under the conduct of a pilot, in her course up the river to Liverpool, was, against the advice of the master, fastened at the pier of the dock-basin, by a rope to the shore, and left there, and she took the ground, and when the tide left her, fell over on her side and bilged; in consequence of which, when the tide rose, she filled with water, and the goods were wetted and damaged : and it was held, that this was a (a) 5 B. & A. 171.
) (6)7 D. & R. 244. 4 B. & C. 730.
stranding to entitle the assured to recover for an average loss upon the goods.
Kaye, contrà. First, this was not a stranding within the meaning of the policy; and secondly, even if it was, the loss was occasioned by the negligence of the crew, and not by perils of the sea, and therefore the defendants are not liable. Busk v. the Royal Exchange Assurance (a), does not at all apply, because there the loss was occasioned by fire, which was one of the risks expressly insured against. In Carruthers v. Sydebotham (6), the mooring of the vessel was an act done against the advice of the master; here the ship was moored in the usual and proper way, and with the concurrence of the crew; so that the two cases are materially different. It is impossible to say, that the loss in this case was occasioned by perils of the sea ; or that the vessel, being left dry in the harbour, by the ordinary ebbing of the tide, was a stranding. Hearne v. Edmonds (c) was precisely like this case. There the vessel, in the course of her voyage up the Cork River, was left dry by the ebbing of the tide, and while in that situation received damage ; and that was held not to be a stranding; and that case was cited, and its authority not impeached, in Barrow v. Bell (d). In Walker v. Maitland (e), the negligence of the master and mariners was the remote cause of the damage; but here it was the immediate and only cause; for if the ship had been secured with a sufficient rope, the accident would not have happened. Thompson v. Whitmore (f), is an authority to shew, that the loss here was not occasioned by perils of the sea; for there the ship was hove down on a beach, within the tide-way, to repair, and was thereby bilged and damaged; and it was held that that was not a loss occasioned by perils of the sea.
(a) 2 B. & A. 73. (6) 4 M. & S. 77.
(c) 4 J.B. Moore, 15. B. 388.
(d) 7 D. & R. 244. 4 B. & C. 730.
(e) 5 B. & A. 171.
1 B. &
F. Pollock, in reply. This case is perfectly distinguishable from Hearne v. Edmonds, because there the ship was in the ordinary course of her voyage when she took the ground, and her being left dry was no more than occurred necessarily to every ship that went up the Cork River ; so that if that had been held a stranding, it must as a consequence have been held, that every ship going up the Cork River was stranded; but here the ship was out of the ordinary course of her voyage, and was driven into the harbour by stress of weather. It is true, that in Carruthers v. Sydebotham (a), the mode in which the vessel was moored, was adopted against the advice of the master; but there is nothing in that case to shew, that the underwriters would have been held discharged from liability even if there had been negligence on the part of the crew; and Busk v. the Royal Exchange Assurance (b), and Walker v. Maitland (c), were both decided subsequently to that case. But Rayner v. Godmond (d) is a still more recent decision on the same point. There, during the course of a voyage on an inland canal, it became necessary, in order to repair the canal, to draw off the water; and the ship, in consequence, having been placed in the most secure situation that could be found, when the water was drawn off, took the ground by accident on some piles, which were not previously known to be there; and it was held that this was a stranding, the accident not having happened in the ordinary course of a voyage. And Bayley, J., in that case, observed, that the two cases of Hearne v. Edmonds (e) and Carruthers v. Sydebotham, were reconcileable, and that the true construction was, " that where, in the ordinary course of the voyage, the ship must go on the strand, the underwriter is exempt; but where it arises from an accident, and out of the ordinary course, he is liable.” There is another authority to shew that the
(a) 4 M. & S. 77.
(d) 5 B. & A. 225.
(e) 4 J. B. Moore, 15. 1 B. & B. 388.
loss here was occasioned by perils of the sea. Fletcher v. Inglis (a). There, a transport, in government service, was insured for twelve months, during which service she was ordered into a dry harbour, the bottom of which was uneven, and on the tide having left her she received damage by taking the ground; and it was held, that this was a loss by perils of the sea.
BAYLEY, J.-There are two questions here. First, was the ship stranded, within the meaning of the policy? Secondly, if she was, still, was there such negligence on the part of the crew as exonerated the underwriters from their liability ? Now, with respect to negligence, the two cases cited, in the first instance, by Mr. Pollock, are in my opinion decisive to shew, that the negligence or mis. management of the master or mariners will not discharge the underwriters, provided the loss is occasioned by one of the perils against which they have insured. Then, the only question here is, whether the loss was occasioned by perils of the sea, or, in other words, whether the ship was stranded.
I consider the fair meaning of the word “stranded,” to be, where the ship, by an accident, and out of the ordinary course of the voyage, gets upon the strand, and receives injury in consequence. If that is a correct definition, Hearne v. Edmonds (6) was properly held not to be a caseof stranding, because there the ship was not out of the ordinary course of her voyage, and she got upon the strand not by an accident, but necessarily and ordinarily, in common with every ship that makes the voyage up the Cork River. But Carruthers v. Sydebotham(c), Rayner v. Godmond (d), and a case, not cited, of Hodgson v. Malcolm(e),
(a) 2 B. & A, 315.
(6) 4 J. B. Moore, 15. 1 Brod. Bingh. 388.
(c) 4 M. & S. 77.
(e) 2 N. R. 336. There, in moving a ship from one part of a
barbour to another, it became necessary to send two of the crew on shore to make fast a new line, and cast off the rope by which the ship was made fast; those two men being immediately impressed and carried away, and not being al
were 'properly held to be cases of stranding, within the definition that I have given of that word, and seem to me to govern this case. Upon the ground, therefore, first, that the negligence of the crew does not discharge the underwriters, where the loss is occasioned by a peril insured against; and secondly, that this ship was stranded by an accident, and out of the ordinary course of her voyage, and the goods damaged in consequence, that being a peril insured against, I am of opinion that the defendants are liable upon this policy, and that the plaintiff is entitled to judgment.
HOLROYD, J., and LITTLEDALE, J., concurred.
Judgment for the plaintiff.
lowed by the press-gang to cast off the rope in question, the ship, in consequence, went ashore and
was lost; and it was held, that
spect of la
HOLDERNESS and another, Assignees of Foxton, a
7. Bot. 2/2. TROVER.–At the trial before Bayley, J., at the York- A wharshire Lent Assizes, 1826, a verdict was found for the finger has not
a general plaintiffs, with an arrangement as to the damages, subject lien in reto the opinion of the Court upon the following case :
bourage and The plaintiffs are the assignees of Thomas Foxton, a warehousebankrupt. The defendants are wharfingers, and owners of by agreement,
room, except a wharf and warehouse, at Hull. The bankrupt was a express or im
plied. Genemerchant at Hull, and, previously to his bankruptcy, from ral, continued,
and undistime to time, landed goods at the defendants' wharf, and
puted usage, placed them in their warehouse, part of which were deli- may be evi
dence of such agreement; but where the right is disputed in the place where the wharfinger lives, he cannot set it up against a customer, unless he has previously given him notice that he will deal only upon those terms.