Where the words used were "free from all average or claim arising from jettison or leakage unless consequent upon stranding, sinking or fire," and during the voyage the ship from bad weather was compelled to put into port, and was there found to be unfit to proceed and together with the cargo was sold, it was held that the plaintiff might recover for an average loss (t). It was formerly considered that the cases had established that, whether a loss was a total loss of part, or an average or partial loss of the whole of the cargo, depended upon the mode in which the cargo was stowed, and that if it was carried in casks or packages which were capable of separate valuation, a loss of one was a total loss to that extent (u), but that if the cargo was stowed in bulk (x), or a portion only of each cask or the like was damaged (y), this was to be considered an average loss. This important question was, however, discussed before the Exchequer Chamber in a modern case, and that Court, after reviewing the earlier decisions, and explaining that their effect had been to a great extent misapprehended, held that where memorandum goods of the same species are shipped, whether in bulk or in packages not expressed by distinct valuation or otherwise in the policy to be separately insured, and there is no general average, and no stranding, the ordinary memorandum exempts the underwriters from liability for a total loss or destruction of part only, although consisting of one or more entire package or packages, and although such package or packages be entirely destroyed or otherwise lost by the specified perils (≈). Where, however, "master's effects" were insured "free from all average," and some of the articles were wholly lost, but others were saved, it was held that the master might recover for those which were lost, since the word "effects" was used merely to save the enumeration in the policy of the articles insured, and it was therefore intended that the insurer should also Booth v. Gair, 15 C. B., N. S. 291; and as to the liability of the insurer under the suing and labouring clause, in a policy on freight, Kidston v. Empire Insurance Company, ante, p. 490, note (a). (t) Carr v. Royal Exchange Assurance Company, 5 B. & S. 433. (u) See the judgment of Lord Mansfield in Lewis v. Rucker, 2 Burr. 1170; and Davy v. Milford, 15 East, 559. (x) Hills v. The London Assurance Company, 5 M. & W. 569. (y) Hedburg v. Pearson, 7 Taunt. 154. (z) Ralli v. Janson, 6 E. & B. 423. See the judgment of the Court in which the authorities, both English and foreign, are fully collected and commented on. The Court expressed no opinion as to the liability of the underwriters in these cases, in respect of goods of different species. be liable for any total loss of the specific things referred to by Where a policy contained, in addition to the usual memorandum, a clause binding the underwriter to pay average separately upon each package, this was held not to prevent the assured, in the event of some packages only being injured, from selling the whole and recovering for an average loss upon the whole exceeding three per cent. (d). Under the words "are warranted free from average under three per cent.," the underwriter is liable if it appears at the end of the voyage that the aggregate amount of several partial losses equals or exceeds three per cent., although each taken separately is under that amount (e). The proportion which the average bears to the cargo must be calculated with reference to the state of the cargo at the time at which the loss happens (ƒ). By the warranty of goods free from average, unless "the ship Stranding. be stranded," the underwriters agree to ascribe the loss to the stranding, as being the most probable occasion of it, although the fact cannot always be ascertained (g). Accordingly, where a stranding has taken place, an average loss becomes a charge upon the underwriters, whether it has been in reality occasioned by the stranding or not (), provided the stranding took place (a) Duff v. Mackenzie, 2 C. B., N. S. 16. S. 348. (e) Blackett v. The Royal Exchange (h) See per Lord Tenterden in Wells 11= while the goods were on board. Where it does not occur until after they are landed the liability of the underwriter is not affected, although the landing took place at an intermediate port, and in consequence of the goods being damaged (i). To constitute a stranding a striking is not sufficient. If the ship merely touches or strikes and gets off again, how much soever she may be injured, she is not stranded; but if she settles and remains for any time, this is a stranding, without reference to the degree of damage which she sustains (4). A resting for fifteen or twenty minutes has been held to be a stranding (7). It is immaterial whether it be upon a bank or a rock (m). It is not, however, every stationary taking the ground that constitutes a stranding. Thus, where a vessel takes the ground in the ordinary and usual course of navigation and management in a tidal river or harbour, upon the ebbing of the tide, or from a natural deficiency of water, so that she may float again upon the flow of the tide or increase of the water, this is not a stranding within the meaning of the memorandum (n). So, when a vessel took the ground several times in going up a harbour in the ordinary course of navigation from the shallowness of the water, this was held to be no stranding (o). Similarly where a vessel took the ground in a tidal harbour where it was intended that she should do so, at the time she was moored, and was injured by striking against some hard substance, this was also considered not to be a stranding (p). But it is otherwise where the ground is taken under circumstances of such an accidental and unforeseen character as not to be in the usual course of navigation (q). And where a ship was improperly fastened to a pier in a basin, so that she took the ground, and when the tide left her she fell over and (i) Roux v. Salvador, 1 B. N. C. 526, overruled, but not on this point, 3 B. N. C. 266. (k) Harman v. Vaux, ubi supra; Mac- (1) Baker v. Towry, 1 Stark. 436. (n) Magnus v. Buttemer, 11C. B. 867; was bilged, this was held to be stranding (). So, where the water being drawn off from an inland navigation for the purpose of repairing it, a vessel settled accidentally upon some piles which were not previously known to be there (s); where a vessel, having struck upon an anchor in a harbour, was injured and in danger of sinking, and was thereupon hauled higher up the harbour and drawn upon the ground, where she remained for some time (t); where a ship under stress of weather made a tidal harbour, but it being low water she grounded there (u); and where a ship was run aground for the purpose of preventing further mischief (x); these were all held to be cases of stranding. (r) Carruthers v. Sydebotham, 4 M. & S. 77; see also Bishop v. Pentland, 7 B. & C. 219. (s) Rayner v. Godmond, 5 B. & A. 225. (t) Barrow v. Bell, 4 B. & C. 736. (u) Corcoran v. Gurney, ubi supra. (x) De Mattos v. Saunders, L. R., 7 C. P. 570. M.P. K K WARRANTY IMPLIED. THE term Warranty, as used in insurance law, means any asserEXPRESS AND tion or undertaking on the part of the assured, whether expressed in the contract, or capable of being annexed to it, on the strict and literal truth or performance of which the liability of the underwriter is made to depend. Warranties may be either express or implied; they are express if stated in terms in What is a warranty. |