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The underwriters can sue in the insured's name and recover from the owner of the vessel in fault the amount paid by them under the policy in respect of the collision, provided the insured could have recovered, and not otherwise (u). Therefore, in cases where both the colliding vessels belong to the insured they will have no right of action (x).
CASE. A policy was effected on horses, warranted free from mortality and jettison. During the voyage, in consequence of the agitation of the ship in a storm, the horses broke down the partitions separating them, and by their kicking bruised and wounded each other so much that they all died. Held, that this was a loss by a peril of the sea (y).
$ 150. The memorandum at the end of the policy is inserted to the memofree the underwriter from liability on account of small randum. averages.
By virtue of the memorandum attached to the statutory form of a marine policy (z) which is used at Lloyd's, the underwriter is not liable for any loss (a) on the articles enumerated first in the memorandum, i.e., on corn, fish, salt, fruit, flour and seed; or for any loss under 5 per
cent. on the second class of articles, i.e., on sugar, tobacco, hemp, flax, hides and skins; or for any loss under 3 per cent. on the third class, viz., on all other goods, or on the ship or the freight; unless the loss were occasioned by a general average or the stranding of the ship. In the case of the first class of articles the underwriter is virtually exempted from being liable for any deterioration, not amounting to a total loss. This stipulation between the underwriter and the insured is generally termed the common memorandum, and the articles enumerated in it are called memorandum articles.
(u) Yates v. Whyte, 5 Scott, 640. memorandum, see Bk. II., Ch. II.
(x) Simpson v. Thompson, 3 App. § 132, p. 221. Cas. 279.
(a) The Great Indian P. R. Co. (y) Gabay v. Lloyd, 3 B. & Cr. v. Saunders, 2 B. & S. 266; see 793.
“Cases" (4) at end of this $ ; Booth (2) For the statutory form of the v. Gair, 15 C. B. (N. S.) 291.
1. Warranted free from particular average”meaning of.
When succes. sive losses can be added together.
The expression "warranted free from particular average,” as used in the ordinary marine policy, will not be confined merely to losses arising from injury to, or deterioration of, the goods themselves; but it is equivalent to a stipulation against total loss and general average only. It therefore will cover expenses incurred in relation to the goods (6).
The expression "warranted free from average unless general,” means that the memorandum frees the underwriter from all liability for anything not amounting to a total loss, except when it is of the nature of general average. For he will always be liable for general average losses (c).
The word “corn,” as used in the memorandum, will include peas and beans (d), and malt (e), but not rice (f). Salt will not include salt petre (9).
In the case of the second and third classes of articles, successive losses, occurring at different times, can be added together to make up the 5 or 3 per cent respectively, in order to make the underwriter liable. But general and particular average cannot be added together for that purpose. Neither can the cost of ascertaining the extent of the loss, nor particular charges, i.e., expenses incurred in preserving the cargo or freight,-for instance, warehouse rent,-be added to the damage for the purpose of making up the required percentage. However, if the damage itself reaches the required percentage, the cost of ascertaining it, or the particular charges, will fall on the underwriter (h).
The percentage is calculated on the amount at risk at the time of the loss (i) If the articles be insured in gross, it will, supposing the articles are specified as in the 5 per cent. clause, be calculated on the full amount of each specified article, taken by itself. When the articles are
The percent. ages-how calculated.
() The Gt. Indian P. R. Co. v. Saunders, 2 B. & S. 266; see “ Cases”' (4) at end of this s.
(c) Wilson v. Smith, 3 Burr. 1550.
(d) Mason v. Skurray, 1 Park, 179, 191.
(c) Moody v. Surridge, 2 Esp.
(s) Scott v. Bourdillion, 2 B. & P. N. R. 213.
(9) Journieu v. Bourdieu, 1 Park,
() Stevens on Av. 228–232.
not so specified, for instance, in the case of the 3 per cent. clause, or when large quantities of the same article are shipped in separate packages, the percentage is to be calculated on the aggregate value of all the articles or packages (;).
If the damage is in excess of the necessary percentage on the whole amount, the insured may either calculate the percentage on the whole amount or on the damaged packages (k).
Every average or partial loss, however trifling, will be Stranding. a charge on the underwriters, if a stranding has occurred, whether or not the loss were really caused by the stranding (1). However, the stranding must occur during the continuance of the risk on the memorandum articles (m).
To constitute a stranding the ship must be stationary at the time of stranding (n). Therefore, if after striking on a rock the ship remain only a short period, e.g., a minute and a half, before sinking, it will not be a stranding (6). So if the vessel takes the ground in the ordinary course of navigation, and not through some accidental cause, such a grounding will not amount to a stranding (p). But on the other hand if a ship is forced ashore by the wind, or is driven on a bank and remains fast for any time, this will constitute a stranding ().
CASES. 1. A ship laden with goods insured on a voyage from London to Hull, but “warranted free from average unless general or the ship
(0) Stevens on Av. 224-228. (p) Per Lord Tenterden, Wells v.
(k) Stevens on Av. 226; Hage- Hopuood, 3 B. & Ad. 34; Kingsford dorn v. Whitmore, 1 Stark. 157. v. Marshall, 8 Bing. 458; Fletcher
(1) Wells v. Hopwood, 3B.& Ad. 20, v. Inglis, 2 B. & Ald. 315; Rayner 35; see “Cases” (1) at end of this į; v. Godmond, 5 B. & Ald. 225; see Kingsford v. Marshall, 8 Bing. 458; “ Cases” (2) at end of this s; CorBurnett v. Kensington, 7 T. R. 210. coran v. Gurney, 1 E. & B. 456; and
(m) Roux v. Salvador, 3 Bing. Letchford v. Oldham, 5 Q. B. D. N. C. 266 (S. C.)
538 (C. A.); 49 L. J., Q. B. 458 ; (») Dobson v. Bolton, 1 Park, Ins. 28 W. R. 789 ; see “ Cases" (3) at 177 ; Harman v. Vaux, 3 Camp. end of this s. 429.
(1) Harman v. Vaux, 3 Camp. (0) Mac Dougle v. R. E. A. Co., 429. 4 M. & Sel. 503.
should be stranded,” arrived in Hull harbour (a tidal harbour) and proceeded to discharge her cargo at a quay there. The unloading could only be effected at high water, and could not be completed in one tide.
At the first low tide the ship grounded on the mud. But on a subsequent tide, the rope by which her head was moored to the opposite side of the harbour stretched and the wind blowing from the east at the same time she did not ground entirely on the mud, as was intended, but her forepart got on a bank of stones, and the vessel having strained, soine damage was sustained by the cargo, but no lasting injury by the vessel. Held, that this was a stranding within the policy (r).
2. During an inland voyage it became necessary to repair the canal and for that purpose to draw off the water. The ship, though placed in the safest position available, when the water was drawn off went by accident upon some piles not previously known to be there. Held, that this was a stranding within the usual memorandum (s).
3. While a vessel was being brought to a quay in the ordinary course, it was discovered that she could not get within twenty feet of it. She was therefore left where she was to await a higher tide. When the tide receded she, instead of resting on an even keel, pitched by the head into a hole and remained in such a position as to strain her timbers, by reason of which she made water and the cargo was damaged. The existence of the hole, which had been made by the paddles of steamers, had not been known previously to the accident. Held, that her grounding amounted to a stranding, it being of such an unforeseen character as not to occur in the ordinary course of navigation (t).
4. Iron rails were shipped to be carried to a certain port for a sum to be paid here, ship lost or not lost. The shippers insured them by a policy in the usual form, “warranted free from particular average unless the ship be stranded, sunk or burnt,” with the usual suing and labouring clause. The ship was neither stranded, sunk nor burnt, but there was a constructive total loss of her by perils of the sea. The rails were saved and sent on in other vessels to their destination, for which the insured had to pay freight to an amount not exceeding the value of the rails. Held, that the underwriters were not liable for this freight, the insurance being in effect against a total loss (u).
(») Wells v. IIopwood, 3B. & Ad. 20. D. 538 ; 49 L. J., Q. B. 458; 28
(s) Rayner v. Godmond, 5 B. & W. R. 789 (C. A.). Ald. 225.
(u) The Gt. Indian P. R. Co. v. (1) Letchford v. Oldham, 5 Q. B. Saunders, 2 B. & S. 266.
TOTAL LOSS AND ABANDONMENT.
$ 151. Losses under a marine policy will constitute either a total Total loss. loss or a partial loss.
There are two kinds of total loss, one total per se, the other not total per se, but rendered total by abandonment. The latter is termed a constructive total loss. A loss total per se occurs when no part of the subject-matter of the insurance exists in the possession of or for the benefit of the insured, or when no part of it exists fit for any useful purpose.
If the loss be a total one, notice of abandonment is not required; but the insured can, without giving notice of abandonment, recover from the underwriter the full amount of his subscription.
If the ship be destroyed by fire, wrecked or permanently lost through barratry, or if she has foundered, or from not having been heard of she be presumed to have foundered, or if she be captured and condemned, or if the goods sink to the bottom of the ocean, or are confiscated, the loss will be total per se,
and no abandonment is necessary (a). But if the goods sink in shallow water, and can consequently be recovered, though only at great expense, notice of abandonment will be required for the insured to recover (V). So, if goods confiscated are restored before trial, the insured can only recover an average loss,
(a) Houstman v. Thornton, Holt, N. P. 242; Mellish v. Andrew's, 15 East, 13; see “Cases" (4) at end of this ; Dixon v. Reid, 5 B. & Al. 597; see “ Cases
(5) at end of this și Stringer v. English and
Scottish Insurance Co., L. R., 5 Q.
(6) Anderson v. Royal Ex. Ass.