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called on to pay for any part of them. Without going at all into details, I propose them to state, what I consider to be the rules of law, by which this case and cases like this, are to be governed.
And 1st : Does the damage to the sails and rigging of this vessel, on her passage from Havre to Fayal, constitute a claim upon the underwriters; or, is this loss to be set down to the account of ordinary wear and tear, admitting the damage to have exceeded five per cent. upon the sum insured ?
Unless there is a practice to the contrary, which has prevailed so long and under such circumstances, that it has acquired the force of a custom, which has incorporated itself into, and become a part of, the law of the land; I am of opinion, that there is nothing in the law of insurance as laid down in the elementary books, or in adjudged cases, which necessarily excludes such a claim.
If the loss is more than five per cent, and was occasioned by a peril insured against, operating in an extraordinary degree,' I see no good reason against the allowance of the claim. I hold such a claim good for the same reason, that an injury 10 the hull of a vessel is considered as coming within the meaning and intent of the policy, when it is the result of the same peril operating in a similar way. It is often difficult to determine, whether the degree of the peril is sufficient to bring it within the stipulation of indemnity, and hence has arisen the notion, entertained by some, that, damage to sails and rigging is not to be paid for.
In the case of damage to sails and rigging, one rule and probably the true rule, is, to presume such damage to be the result of ordinary wear and tear. The presumption should be against the insured, and the burthen of proof on him to show, not merely that the injury sustained might have been ; but, that it must have been occasioned by an extraordinary peril; or a peril extraordinary in degree; and, if the assured can show this, he may attempt it, and if successful it will not be a sufficient answer for the underwriter to give, that the injury was one which happened to sails and rigging, and therefore, not to be paid for.
Mr. Phillips (Phillips on Inurance, 257) says, “ No specific rule can be laid down in regard to ropes parted, and sails split or blown away. If it appear from the circumstances, that the
1 Phillips on Insurance, 252. Stevens on Average, 152.
damage was caused by any extraordinary violence, the effects of which could not be guarded against, it is a loss within the policy.' The application of these principles to the facts in this particular case is a work of difficulty. Whether the gales which happened on the passage to Fayal, as set forth in the protest, admitting them to have been as severe as is therein stated, were sufficient to have occasioned the damage said to have been sustained to a vessel in all respects well found, I profess not to be able to determine. It is enough for me to express the opinion, that if the assured can show beyond a doubt, that like causes operating upon a vessel stanch, strong, well found and seaworthy would have produced like effects, and the damage in any one gale or continued storm amounted to more than five per cent. he has a claim upon the underwriters, which he can enforce in a court of law.
2. Distinct losses less than five per cent. are not to be added together.
The clause in the common form of policy is, 'nor for any partial loss on the goods, or on the vessel or freight, unless it amount to five per cent.' &c. This being the language of the policy, it constitutes a part of the express agreement or bargain made by the parties. There are in effect two underwriters upon the vessel ; the insurer so called, who takes risks of five per cent. and upwards, and the assured, who takes those under that sum. And whatever may have been the reason of the rule originally, it does not follow that because the reason ceases, the rule itself should cease. It has been found convenient to adopt some general rule, the effect of which would be to protect the insurer from trifling claims for losses, which might fairly be presumed to be the result of ordinary wear and tear; and to avoid the very great inconvenience, which would attend particular inquiries of this sort in particular cases, this general rule has been adopted and incorporated into the policy. The fact, that in any particular case, there is a hardship on one side or the other is a reason, why the rule should not be distorted; but it does not excuse either of the parties from fulfilling his agreement. Losses of five per cent. do not come within the provisions of the policy, but are expressly excepted. No premium is taken for such risks. But in considering the question, the difficulty consists in the application of the rule. The rule is a
simple one, and not disputed; that several losses, happening at different times, are not to be added. But then, what are distinct losses? The opinion of writers on this subject is expressed with caution and in guarded language, and they seem to rely upon established custom rather than upon judicial decisions. Mr. Phillips says, the rule is that when whatever may properly be considered the same loss, exceeds the rate at which the exception is limited, the assured has a claim.
Stevens says, this is among the cases, which want authority to settle them; but, that the claiın for one accident must amount to the £3 per cent.
Benecke, in 1824, laid it down, that the question depended upon custom alone, and that the opinion prevalent at Lloyd's was, that each damage by itself must amount to £3 per cent., to make the insurer liable. Hughes expresses the same opinion as to the practice.?
Our own Supreme Court in Brooks v. The Oriental Insurance Company, 7 Pick. R. 259, say expressly, that distinct and successive losses are not to be added, but the damage from disasters happening at one time, or in one continued gale, is to be considered by itself.
That case is unlike the one, which is the subject of the present examination, inasmuch as in that case the vessel had, between the losses, put into port for repairs. But there does not appear to be any difference in principle. The question is, whether the losses happened in one storm, or more than one ; and, if in more than one, I do not perceive, that it is of any consequence, how near to each other the several disasters happened, unless one disaster is clearly proved to be consequential of the other.
The result is this :
1. If the damage in any one continued storm amounted to five per cent. the insurer is bound to pay for it, provided it can be clearly and satisfactorily proved by the assured to have been occasioned by one of the perils insured against.
2. In the above case, my impression is that the losses happening between the 2d, and 10th, the 13th, and 16th, the 13th,
1 Phillips on Insurance, 494. 2 Stevens on Average, 214. 3 Benecke, 473. Hughes on Insurance, 283.
VOL. XI.-NO. XXI.
and 29th, and the loss on the 30th of October, are to be considered distinct losses, and are not to be added together to make up five per cent.
F. 0. W.
`ART. IV.-ON THE DISTINCTION BETWEEN CONDITIONS AND
LIMITATIONS IN DEEDS AND DEVISES,
CONDITIONS are qualities attached to certain estates for the benefit of the party creating the interest therein. They proceed from the grantor, and is strictly conditions, if they do not partake of the nature of covenants are merely for the benefit of the grantor. The design of a condition is not to modify or vary the extent of the estate granted, or to qualify the provisions of the grant. It is the familiar learning of this branch of the law, that conditions repugnant to the nature of the estate, or to the provisions of the deed creating it are void. A condition is for the benefit of the grantor, and gives him the power of destroying the estate. A covenant is mutual ; it contains the agreement of both parties, and defines its extent and is conclusive. A limitation is conclusive of the time of continuance, and of the extent of the estate granted. The grantor disposes of and limits his whole estate, and by the terms of his grant parts with his entire interest. Limitations make void the estate.Conditions render the estate voidable at the election of the grantor. They do not avail in any case for the party making the breach. He who has broken the condition cannot take advantage of his own wrong, and if the contract which is subject to the condition contains provisions, which are beneficial to the party to whose prejudice the condition has been violated, it is most proper, that he should have the privilege of exercising his option, whether he will enter to take advantage of the breach of conditions, or whether he will submit to a continuance of the contract, and exact from the other party a fulfilment of those provisions to which that contract may have bound him. And, yet manifestly, if the grantor makes his election to uphold the contract, he shall not have a double privilege. He shall not be permitted to exercise a right, which he has waived. Limitations are imperative. They fix the end and duration of an estate. Conditions, are subject not only to the option of the grantor ; their breach is not only waivable by him, but they may be and often are taken out of his hands by courts of equity. They not only do not absolutely determine the estate by their own force, but they are controlled by equity, if the grantor proposes to make an inequitable use of them. Courts inquire into the morality and public expediency of conditions, and in certain cases make void the condition and not the estate, giving an effect to grants not contemplated by the parties. A cy. pres performance is admitted. If the condition is a pecuniary one, a court of chancery always relieves for the breach, by providing a subsequent substantial performance, and which differs from the provisions of the grant, and it has been maintained, that chancery may relieve to a very great extent for the breach of a variety of conditions. This is not the place to discuss the propriety or extent of the doctrine, and we notice cursorily a few only of the modifications of conditions to show, that they have not alone efficacy to determine an estate.
In Woodman v. Blake, 2 Vernon 222, it was decided, that where one having three daughters, devised land to his eldest upon condition, that within six months after his death, she pay certain sums to her other two sisters, and if she failed, then he devised the land to his second daughter, on the like condition ; that the court may delay the time for payment, though the premises are devised over.
The performance of a condition is excused by the act of God, by the default of the party for whose benefit it was made. In some cases by impossibility of performance, by tender and refusal, by a discharge. On the other hand, limitations determine the estate, whatever may be their nature. They constitute the boundaries of the interest granted. It is often extremely difficult to determine, whether words which are used to point out the termination of an estate, are properly words of condition making the estate voidable, or words of limitation making the estate to cease. And yet the different estates have incidents and qualities so totally unlike, and the consequences resulting to the grantee, from the one or the other, are so vastly important, that it becomes an interesting inquiry, in what manner they are to be distinguished. In certain cases, where