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were taken out and lodged in a warehouse till the ship should be heeled and cleaned, and, while so warehoused, were accidentally burnt. Held, that the underwriters were liable for their loss (z).
$ 147. In the case of a policy on freight, if the cargo has been Risk on
freight validly contracted for, and is ready to be shipped at the
insured. date of the loss, and if the ship would have been in a condition to receive it, but not otherwise, had not the perils insured against happened, the policy will have attached. Consequently the underwriters will be liable for the freight which would have been earned on the voyage, though the ship has never received any part of the cargo (a).
This rule of insurance law will also apply in cases where the shipowner intended to carry his own goods, and the anticipated profit thereon has been insured by him as freight (6).
CASES. 1. A policy was effected on freight valued at 1,5001. Only 5001. worth of freight was actually on board when the ship was driven from her moorings and lost. But goods equivalent to the remainder of the freight were lying on the quay ready to be shipped at the time. Held, that the insured could recover on his policy the whole freight (c).
2. A shipowner insured freight at and from the Coromandel coast to Bourbon. The ship put into a port on the Coromandel coast to repair. The shipowner purchased a cargo, and held it ready to be embarked about seven miles from the port. The ship in going out of dock was lost by an accident. Held, that the cargo being ready to be shipped, the underwriters were liable on the policy for the freight (d).
(-) Pelly v. Royal Ex. Ass. Co., 1 Burr. 341.
(a) Tonge v. Watts, 2 Str. 1251; Montgomery v. Egginton, 3 T. R. 362 ; see
“ Cases" (1) at end of this
(1) Deraux v. J'Anson, 5 Bing. N. C. 519; see “Cases” (2) at end of this s.
(c) Montgomery v. Eggington, 3 T. R. 362.
(d) Deraux v. J'Anson, supra.
LOSSES COVERED AND EXCEPTED BY THE POLICY.
Losses covered by a policy.
1. Perils of the sea.
The following are the losses generally covered by a policy of marine insurance :-Perils of the sea; fire; capture; arrest, restraints, and detainments; pirates; negligence of crew; barratry; and all other perils, losses and misfortunes.
“Perils of the sea” will only cover casualties arising strictly from sea damage, or the violence of the elements (a), as, for instance, those occasioned by a tempest or a collision, unless the collision be entirely caused by the fault of the vessel damaged (6). Where only part of a cargo insured is actually damaged by perils of the sea, but in respect of the remainder loss is sustained in consequence of its reputation in the market being impaired, the insured will only be entitled to recover for the loss of the former part, and not in respect of the injury to the reputation of the remainder (c).
A loss by stranding will be a loss by the perils of the sea, provided the stranding be fortuitous, and do not arise necessarily in the usual course of the voyage. In cases where the stranding is not due to any extraordinary occurrence, but the vessel grounds in the ordinary course of the voyage,-for example, if she take the ground on the falling of the tide in a tidal harbour (d),—the stranding
(a) Com. Dig. Merc. E. 9; Share v. Felton, 2 East, 109; Montoya v. London Ass. Co., 6 Exch. 451 ; see “ Cases" (1) at end of this §
(6) Buller v. Fisher, 3 Esp. 67 ;
Smith v. Scott, 4 Taunt. 126.
(c) Cator v. Great Western Ins. Co., L. R., 8 C. P. 552.
(d) Magnus v. Buttemer, 11 C. B. 876.
will not be considered a loss by the perils of the sea, but mere wear and tear (e).
A loss occasioned by delay on account of bad weather, or by worms or rats eating the ship's bottom, is not a loss by perils of the sea (f). However, loss caused by the ship taking the ground in a tidal harbour through a heavy swell (g), or by leakage caused by a storm (h), or by the ship bilging (i), or being blown over in a graving dock (j), will be a loss by perils of the sea.
If the vessel be not heard of within a reasonable time after sailing, or after having been seen, the presumption is that she has foundered (k), and the insured may recover for a loss by "perils of the sea.” The insured must, however, prove that when the ship left the port of outfit,
, she was bound on the voyage insured (k).
A loss caused immediately by perils of the sea is within the policy, though it might not have occurred but for the concurrent action of some other cause, not within the policy (). Thus, if a ship be damaged while at sea by
1 the bursting of her boiler, the underwriters will be liable, notwithstanding that the bursting of the boiler was owing to the plates being worn too thin to resist the pressure of the steam, and that that condition of the plates was due to negligence in omitting to clean and inspect the boiler (m).
The underwriter is liable for any loss by fire, when 2. Fire. (e) Fletcher v. Inglis, 2 B. & Al. 3 Taunt. 227 ; Rowcroft v. Duns315; see “Cases” (2) at end of
more, cited ibid. this g.
(5) Phillips v. Barber, 5 B. & (f) Taylor v. Dunbar, L. R., Ald. 161. C. P. 206 ; see
“ Cases " (3) at (k) Green v. Brown, 2 Str. 1199; end of this ș ; Rohl v. Parr, 1 Cohen v. Hinckley, 2 Camp. 50; Esp. 445; Hunter v. Potts, 4 Camp. Park, 105, 106. 203.
(1) Dudgeon v. Pembroke, 1 Q. B. (9) Fletcher v. Inglis, 2 B. & Ald. D. 96; 2 App. Cas. 284. 315; see Cases " (2) at end of (m) West India and Panama Tele
graph Co. v. Home and Colonial (h) Crofts v. Marshall, 7 C. & P. Marine Ins. Co., 6 Q. B. D. 51; 597.
50 L. J., Q. B. 41; 43 L. T. 420 ; (i) Devaux v. J'Anson, 5 Bing. 29 W. R. 92 (C.A.). N. C. 519; Thompson v. Whitmore,
caused by negligence on the part of the crew, or by accident, or lightning, or when resulting from the performance of an act required by the State (n). However, in the case of a policy on goods, the underwriter will be discharged from all liability if they were so damaged when shipped as to generate the fire which destroyed them (). Further, if the master burns the ship to save her from capture by an enemy, it will be a loss by fire within the policy (p).
The insurance against “capture” will cover capture by an enemy, whether it be lawful or unlawful, including a capture by pirates (). Capture by a British vessel will not be covered thereby. For an insurance against capture by a British man-of-war is null and void.
If the vessel be recaptured from the enemy, and the owners can obtain its restitution on paying salvage, the underwriters must indemnify them against the cost of obtaining restitution, including the amount of the salvage (-).
As an insurance against capture by a British war vessel is illegal (8), it follows that a policy effected here on a foreign ship, previous to the commencement of hostilities between this country and the State to which she belongs, will not cover a loss by British capture (*).
The insurance against "pirates, rovers, and thieves only applies to persons not belonging to the ship (t), and therefore will not cover a robbery by one of the crew. also only applies to robbery with violence, and not to simple theft; furtum non est casus fortuitus (u).
The insurance against “arrests, restraints, and detain
4. Pirates, rovers, thieves.
5. Arrests, restraints,
(n) Hollingworth v. Brodick, 7 Ad. & E. 40; Busk v. Royal Exchange 488. Co., 2 B. & Ald. 73; and see Austin v. Drewe, 6 Taunt. 435.
() Boyd v. Dubois, 3 Camp. 132.
(p) Gordon v. Rimmington, 1 Camp. 123.
(1) Dean v. Hornby, 3 E. & B. 180; Green v. Elmslie, 1 Peake, 278.
(r) Berens v. Rucker, 1 W. Bla. 313.
(s) Furtado v. Rodgers, 3 B. & P. 191; Gamba y. Le Mesurier, 4 East, 407; see Ch. IX. § 173, p. 318.
(1) Taylor v. Liverpool f. G. W. Steam Co., L. R., 9 Q. B. 546.
(u) i Emérigon, ch. 12, sect. 29,
ments of kings, princes, and people,” will cover a loss con- and detainsequent on a seizure under an embargo or a prohibition of ments, State (x), but not a detainment of the vessel insured by a riotous mob (y). For the words “kings, princes, and people” refer to the governing power of the country where the vessel is seized or detained.
Arrest differs from capture in that it is merely a temporary detention of the ship, with the intention of ultimately releasing it or paying its value ; while capture consists in the forcible seizing of a ship during war, with the intention of retaining it as prize.
An "embargo” is a prohibition to depart from a certain port or place, or a restraint laid on ships or merchandise by the governing power of some State.
A“prohibition of State” prevents foreign ships from putting to sea during war, or excludes them from entering the ports belonging to the State where the prohibition is issued.
In the event of an arrest or embargo the underwriter on ship will not be liable for the wages of and provisions supplied for the use of the crew during the detention, because an arrest or embargo does not, per se, determine the contract of affreightment; and in that respect it differs from capture (-).
A loss occasioned by the negligence or misconduct of 6. Negligence the crew will be covered by an ordinary marine policy, of crew.
or misconduct and the underwriters are therefore liable for the consequences of such negligence or misconduct. Thus, where a ship becomes leaky through the cargo being negligently loaded, and is run ashore to prevent her from sinking, and to save the cargo, the underwriters will be liable (a). But the owner must, as a condition precedent, provide a competent master and crew; because, should he fail to do so,
(2) Aubert v. Gray, 32 L. J., Q. B. 50 (S. C.); Rodocanachi v. Elliott, L. R., 9 C. P. 518.
(y) Nesbitt v. Lushington, 4 T. R.
(3) Eden v. Poole, 1 Park, Ins. 91; Ro tson v. Ewer, 1 T. R. 127.
(a) Redman v. Wilson, 14 M. & W. 476.