DATE DOWNLOADED: Wed Jan 6 21:10:36 2021

SOURCE: Content Downloaded from HeinOnline

Citations:

Bluebook 21st ed.

Edwin H. Woodruff. Selection of Cases on the Law of Insurance (2).

ALWD 6th ed.

Woodruff, E. Selection of Cases on the L of Insurance (2).

APA 7th ed.

Woodruff, E. (2). Selection of Cases on the Law of Insurance. New York, Baker,
Voorhis & Company.

Chicago 7th ed.

Woodruff Edwin H. Selection of Cases on the Law of Insurance. New York, Baker,
Voorhis & Company.

McGill Guide 9th ed.

Edwin H. Woodruff, Selection of Cases on the L of Insurance (New York: Baker, Voorhis
& Company., 2)

AGLC 4th ed.

Edwin H. Woodruff, Selection of Cases on the Law of Insurance (Baker, Voorhis &
Company., 2)

MLA 8th ed.

Woodruff, Edwin H. Selection of Cases on the Law of Insurance. New York, Baker,
Voorhis & Company. HeinOnline.

OSCOLA 4th ed.

Woodruff, Edwin H. Selection of Cases on the Law of Insurance. New York, Baker,
Voorhis & Company.

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
 CHAPTER XVI.
TERMS OF THE MARINE INSURANCE CONTRACT.

1. ATTACHMENT OF THE RISK.

HAUGHTON AND v. EMPIRE MARINE INSURANCE
OTHERs
COMPANY (LIMITED).
L. R. 1 Ex. 206.-1866.
DECLARATION on a valued policy of insurance on the ship Urgent,
"lost or not lost, at and from Havana to Greenock," alleging that
the ship when at Havana, and after the commencement and during
the continuance of the risk, sustained injury by the perils insured
against.
CHANNELL, B. This was an action on a valued policy on the ship
Urgent, lost or not lost, at and from Havana to Greenock, and the
question for us to determine is, whether or not the risk had at-
tached at the time when the damage occurred. A verdict was
entered at the trial for the plaintiffs, and a rule has been obtained
by the defendants to enter a non-suit pursuant to leave reserved.
The facts are before us on the judges' notes and in certain docu-
ments admitted in evidence, and we are to be at liberty to draw
inferences of fact. It appears that the Urgent, having arrived off
Havana, the captain engaged the services of a steam-tug and a pilot
for the purpose of taking her to a clear anchorage. She was towed
into the harbor, past the point where she ultimately discharged her
cargo, to a point at the head of the harbor, called the Regla Shoal.
There she grounded, and received damage from the anchor of
another ship. In my opinion she was at that time at Havana, and
consequently the risk under the policy had attached. The damage
occurred at Havana, geograpbically speaking, and there is nothing
which, to my mind, showos that the parties, at the time this policy
was underwritten, contemplated any other meaning of the word
"at." All the limitation which the law appears ever to have im-
posed as to the time of the commencement of the risk in such a
553
554 TERMS OF THE MARINE INSURANCE CONTRACT.

case is, that the ship should arrive at the port at which she is in-
sured in a state of sufficient repair or seaworthiness to be enabled
to be there in safety. See Parmeter v. Cousins, 2 Camp. 235, and
Bell v. Bell, 2 Camp. 475, in the latter of which cases the ruling of
Lord Ellenborough, C. J., at Nisi Prius, was upheld by the court in
bane. Here, however, there seems to be no doubt that the ship was
really within the harbor in good safety, and the loss occurred from
a peril in the harbor, and in no way from any injuries she had
received before her arrival. The ship being insured while at
Havana is evidently, in the absence of any provision to the con-
trary, insured all the time she is there, and, therefore, the risk
commences on her first arrival, as put by Lord Hardwicke in Mot-
teaux v. London Assurance Company, 1 Atk. 545.
Unless, therefore, we can say that her first arrival at the port is
when she casts anchor there, instead of when she enters the port,
our judgment must be for the plaintiffs. In many ases the nature
of the port may be such that the two events may be identical.
There may be nothing to shew the arrival till the vessel casts
anchor. But here we have evidence as to the port of Havana which
is sufficient, in my judgment, to shew that the arrival was before
casting anchor. It has been argued that the first arrival, which
must be no doubt in good safety, must be identical with the moor-
ing in good safety usually named in outward policies. But I think
we cannot construe the terms of one contract by reference to those
of another not referred to in it. And it is clear that there is no
usage that the duration of the outward and homeward policies
should not overlap, because the outward policy usually extends to
twenty-four hours after the vessel is moored in good safety. Dur-
ing those twenty-four hours there is no question that there is a
double insurance, and, therefore, I see no ground for saying that
the parties contracted subject to any usage that such a policy
would not attach until the previous one had determined. If they
had wished to make such a condition it might easily have been
done; or if, having in view any special dangers, as shoals or the
like, within the port of Havana, they had chosen to make the risk
date from the vessel being moored in safety, they would have done
so; but as it stands it is from the first arrival, which, as a matter
of fact, I think to be on her entering the port. My judgment is,
therefore, for the plaintiffs, that the rule be discharged.
[Opinion also by PIGoTT, B.]
 TERMS OF THE MARINE INSURANCE CONTRACT. 555

2. TERMINATION OF THE RISK.

WHITWELL v. HARRISON.
2 Exch. 127; 154 Eng. Rep. Reprint, 433.-1848.
ALDERSON, B. This was an action on a policy of assurance, on
the ship Governor Halket, at and from Quebec to her port of dis-
charge in the United Kingdom. By the charter-party of the vessel,
which was put in, the vessel was chartered to take on board a cargo
of timber at Quebec, and to proceed therewith to Wallasey Pool, in
the river Mersey, or as near thereto as she could safely get, and
there discharge her cargo.
It appeared at the trial that the vessel sailed from Quebec on the
23d of July, 1845. and arrived in the Mersey on the 4th of Septem-
ber, and came to an anchor at the Bell Buoy in. that river. The
next morning she was towed up by a steamboat, and came abreast of
Wallasey Pool; but being unable to get into Wallasey Pool, by
reason of her too great draft of water, the captain anchored
there, and proceeded to Liverpool to report the vessel, and engaged
lumpers to discharge the cargo at a fixed rate of payment, which
was to include the expense of rafting the timber from the vessel
into Wallasey Pool, and discharged his crew, as was usual on
a ship's arrival at Liverpool, altogether. He then proceeded to
discharge the deck cargo, and afterwards a considerable portion of
the other cargo, by the usual mode, at the stern port, from the hold
of the vessel; and after occupying in this way several days, the ship
being at anchor, on the 14th of September, fell over and sustained
damage, the subject of the present action; and the question is,
whether the underwriters were at the time of this accident off the
policy, by reason of the vessel having been moored in safety twenty-
four hours after her arrival at her port of discharge. It appeared
in evidence, that the captain always intended ultimately to carry
the vessel into Wallasey Pool, with as much of the cargo on board,
as she could carry over the shallow part intervening between his
original anchorage and the pool. But it was also clearly established
that the discharge of the cargo was going on in due course, and that
if the water were not sufficient, and no accident had occurred, the
whole cargo would have been discharged in the place where the
vessel was moored.
My Brother Rolfe held, under these circumstances, that the
underwriters were not liable and we think he was right in so hold-
 /
556 TERMS OF THE MARINE INSURANCE CONTRACT.

ing. Here the ship was bound to Wallasey Pool, or as near thereto
as she could safely get, and it is clear that that was the intended
place for the discharge of her cargo. The cases on this subject
are well collected in Mr. Hildyard's edition of Park on Insurance,
vol. 1, p. 73. We were referred in the argument to Samuel v. The
Royal Exchange Company, 8 B. & C. 119; but this case is clearly
distinguishable from it, because there the vessel had not arrived at
the place where any part of her cargo was ever intended to be dis-
charged; the vessel here had on the 5th of September arrived as
nearly Wallasey Pool as she could safely get, and did actually begin
to discharge her cargo accordingly, discharging her crew altogether,
and leaving none of them on board for the purpose of further
navigation. The case of Brereton v. Chapman, 7 Bing. 559, does
not appear to us at all to affect this question. There the vessel
was still in progress to the ultimate place for the discharge of her
whole cargo, and all that was done was to put on board lighters
a portion of her cargo, in order that the vessel might be enabled
thereby without delay to proceed with them to the usual place of
discharge. There the whole crew remained on board, and the ves-
sel was in all respects really continuing her voyage. Keyser v.
Scott, 4 Taunt. 660, and Dalgleish v. Brooke, 15 East. 299, are
authorities showing rather that "the port of discharge" includes
the whole port within which any portion of the cargo is usually,
according to the custom of such port, taken out of the vessel. These
are authorities going on a totally different principle, viz., that of
the construction of a warranty from seizure in the port of dis-
charge; but, if at all applicable to the present question, they go
further than this case requires us to do. Upon the whole, we think
that here the vessel had clearly arrived at her port of discharge,
and was actually in the course of discharging her cargo, and had
moored there twenty-four hours in safety before the accident
occurred. The rule therefore must be discharged.'

1"The voyage is understood to be terminated when the vessel

arrives at her port of destination, and has been moored there in safety
for twenty-four hours."-Gracie v. Marine Ins. Co., 8 Cranch, 75
(1814).
 TERMS OF THE MARINE INSURANCE CONTRACT. 557

3. DEVIATION.

ENDICOTT, J., IN BURGESS v. EQUITABLE MARINE

INSURANCE COMPANY.
126 Mass. 70.-1878.
IT may be stated in general terms that the assured is protected
by his policy, while the vessel pursues the usual and customary
course of the voyage; but any departure from the course, or delay
in prosecuting it, without necessity or just cause, is a deviation
and discharges the insurer, because another voyage has been volun-
tarily substituted for that which was insured. Whether the degree
or period of the risk is increased, is unimportant, as the assured has
no right to substitute a different risk. Whenever, therefore, there
is a manifest departure from the course of the voyage, the assured
must show that it was justified by the necessity of the case.
Stocker v. Harris, 3 Mass. 409, 418; Brazier v. Clap, 5 Mass. 1;
Coffin v. Newburyport Ins. Co., 9 Mass. 436, 449; Kettell v. Wig-
gin, 13 Mass. 68.
In the case at bar, the alleged necessity arose from scarcity of
bait. The plaintiff did not put on board, when the vessel sailed
from Plymouth, enougli for the entire trip. Squid had been plenty
on the Banks during several years prior to 1874, and the plaintiff
relied upon catching them there and using them for that purpose.
They happened this season to be very scarce, and, after fishing
three weeks, and nearly exhausting his supply, the master sailed
for St. Peter's, over 100 miles distant, procured bait, and returned
to the Banks after an absence of a week. It is to be observed,
that this so-called necessity did not arise from any peril insured
against in the policy, or ordinarily insured against in policies of
insurance, and did not involve the safety of the vessel, or of any
property on board; it had relation solely to the success of the fish-
ing adventure and in this the defendant had no interest and had
assumed no responsibility. We are of opinion that the claim of the
plaintiff cannot be sustained; and that a necessity to justify the
departure in this case cannot be found in the fact that, without
going to St. Peter's for bait, the voyage would have failed to be
successful or profitable to the plaintiff.'

'"A deviation is a voluntary and inexcusable departure from the

usual course, and whether the departure amounts to a deviation must
558 TERMS OF THE MARINE INSURANCE CONTRACT.

4. SEAWORTHINESS.

THEBAUD v. GREAT WESTERN INSURANCE CO.

155 N. Y. 516; 50 N. E. 284.-1898.
O'BRIEN, J. This was an action by the owners of a steamboat
upon a policy of marine insurance. The issues in the case were
tried before a jury, and the plaintiff recovered.
On the 28th of June, 1884, the steamer Dos Hermanos was in
process of construction at the port of Philadelphia for use as a
river steamer at or near Frontera, Mexico. She was not con-
structed or intended for use upon the open sea, but for service upon
the rivers or other inland waters of the country where she was
destined for use. On the day mentioned, the defendant issued to
the plaintiff its policy of marine insurance upon this steamer to
cover the voyage from Philadelphia, the place where it was built,
to Frontera, Mexico, the place where it was intended for use. The
policy related only to this voyage, part of which was, as all parties
knew, upon the open sea. The defendant, by the terms of the
policy, undertook to pay to the plaintiffs the sum of $5,000 in case
of loss upon this voyage, including what is known as the mechanic's
risk while in port, meaning that at the time of the execution of the
contract the steamer had not been completed, and, in fact, the voy-
age did not commence until the 27th of August thereafter. The
policy, by its terms, indemnified the owners against loss from the
usual perils of the sea covered by policies of marine insurance.
The steamer, while on the voyage, was lost at sea, near the coast of
North Carolina, on the night of the 13th of September, 1884. . .
.

It is no doubt the general rule that in all contracts of marine

insurance upon vessels there is an implied warranty that the sub-
ject of the insurance was at the time seaworthy, or, in other words.
reasonably fit and capable of making the voyage. But in this
case both parties knew that the vessel was not intended for service
upon the open sea. She was not built or constructed for any such
purpose, but, on the contrary, for the river service. Before the

be determined by the motive, consequences and circumstances of the

act. Hence, in its nature it is a question of fact. Where the circum-
stances are such as to leave no alternative to a reasonable and prudent
man, exercising a sound judgment, and acting for the best interests of
all concerned, it is not a deviation. 1 Arnold on Ins., §§ 151, 152."-
Thebaud v. Ins. Co., 155 N. Y. 516 (1898).
 TERMS OF THE MARINE INSURANCE CONTRACT. 559

defendant entered into the contract the plans and specifications

with reference to the construction of the Dos Hermanos had been
submitted to its agents. They put the defendant in possession of
all information concerning the character and construction of the
craft. The defendant's marine engineer, who had had considerable
experience assured the broker who took the risk "that she was
built for the river trade, and he did not consider that she was just
the thing to attempt all weathers on the coast going around there,
but if properly handled she might get there, provided she took the
inland course so far as possible." The defendant thereupon con-
cluded to write the risk, but exacted therefor double the usual pre-
mium for marine insurance on ordinary seagoing vessels. . .

.
That the Dos Hermanos was not a seaworthy vessel, in the sense
in which these terms are applied to seagoing vessels, is made quite
clear by the evidence. It was undoubtedly competent for the jury
to so find and for the court below to so decide, but in this court
the question always is, upon an issue of this character, not upon
which side the evidence preponderates, but whether there is any
evidence to support the verdict. The parties knew perfectly well
that the subject of the insurance was not a seagoing vessel, but,
for the purposes of the trip the defendant was evidently willing to
take the risk, in consideration of the payment of a double premium,
and after inspecting the vessel and acquiring full knowledge as to
her construction and capacity. In view of the proof in the case
tending to show what was donein order to fit the steamer for her
voyage, we do not think it can be said in this court that the verdict
of the jury is without any evidence to sustain it. Generally, the
question as to whether a vessel, covered by a policy of marine in-
surance, was, or was not, at the time seaworthy, is one of fact for
the jury. Burges v. Wickham, 3 Best & Smith, 669; Clapham v.
Langton, 5 Best & Smith, 729; Turnbull v. Janson, 36 L. T. R.
635; Bouillon v. Lupton, 15 C. B. (N. S.) 113. It is difficult to
see how such a question from its very nature can in practice be
determined otherwise, except, possibly, in a very clear case. But
we do not regard that question as controlling, since, as already
stated, both parties to the contract knew that the vessel was not a
seagoing craft, or suitable for the navigation of the high seas, and,
under the circumstances, the implied warranty upon which the
defendant relies should not be construed in such a way as to be
repugnant to the general purpose which the parties had in view
at the time of the execution of the contract. . . . We think
560 TERMS OF THE MARINE INSURANCE CONTRACT.

the defendant must fail in defeating the recovery on the ground

that there was a breach of the implied warranty of seaworthi-
ness. . . .I

5. PERIS INSURED AGAINST.

THAMES AND MERSEY MARINE INSURANCE CO. v.

HAMILTON, FRASER & CO.
12 A. C. 484.- 1887.
(House of Lords.)
THE policy sued on was a time policy on the steamship Inch-
maree, for twelve months, from the 20th of August, 1883, to the
20th of August, 1884; and the subject-matter of insurance, "the
hull, masts, spars, sails, boats, materials, and all stores, valued at
£20,000; and machinery, shafting, propeller, boilers, and connec-
tions, including donkey-engine and boilers, pumps, and all connec-
tions, valued at £11,000."
The risks against which the insurance was effected are thus
described: "And touching the adventures and perils which the
capital stock and funds of said company are made liable unto by
this insurance, they are, of the seas, men-of-war, fire, enemies,
pirates, rovers, thieves, jettisons, letters of mart and countermart,
surprisals, takings at sea, arrests, restraints and detainments of all
kings, princes, and people of what nation, condition, or quality
soever, barratry of the master and mariners, and of all other perils,

' "A ship is deemed to be seaworthy when she is reasonably fit in

all respects to encounter the ordinary perils of the seas of the adventure
insured."- English Marine Ins. Act, § 39. "In the case of an insur-
ance for a certain voyage, it is clearly established that there is an
implied warranty that the vessel shall be seaworthy, by which is meant
that she shall be in a fit state as to repairs, equipment, and crew, and
in all other respects, to encounter the ordinary perils of the voyage
insured, at the time of sailing upon it. . . . The great principle
established by the more recent decisions is, that, if the vessel, crew,
and equipments be originally sufficient, the assured has done all that
he contracted to do, and is not responsible for the subsequent deficiency
occasioned by any neglect or misconduct of the master or crew."-
Dixon v. Sadler, 5 M. & W. 405 (1839). Upon the conflict as to
whether there is an implied warranty of seaworthiness in time policies,
see 26 Cyc. 645.
 TERMS OF THE MARINE INSURANCE CONTRACT. 561

losses, and misfortunes that have or shall come to the hurt, detri-
ment, or damage of the aforesaid subject-matter of this insurance,
or any part thereof."
On the 2d of March, 1884, the Inchmaree was at anchor off Dia-
mond Island, awaiting orders, and for the purposes of the voyage it
was necessary to pump up the main boilers, by meansof a donkey-
pump and engine, in the usual way. A pipe led from the donkey-
pump to the boilers, and at its junction with one of the boilers,
there was a check-valve, capable of being opened or closed with a
screw which ought to have been kept open and clear when the
boilers were being pumped up. This valve had either been left
closed or had become salted up when the donkey-pump was set to
work off Diamond Island, so that the water could not pass into the
boiler. The consequence was, that when the donkey-pump was set
to work the pipes and water chamber in the donkey-pump, and the
air-chamber therein, became overcharged, and the water was forced
up into the air-chamber, which, in consequence, split, and the pump
was thereby damaged.
It was admitted, for the purposes of the case, that the check
valve was either allowed to remain closed or become salted up, by
the negligence of one of the engineers, or was accidentally salted up
without being noticed, though reasonable care was taken by the
engineers. It was also admitted that the closing or salting up, and.
accident were not due to ordinary wear and tear. The parties were
unable to agree as to whether there was negligence in allowing the
cheek valve to remain closed, or to become salted up; but as the
plaintiffs contended that the defendants were liable, whether there
was negligence or not, it was agreed to leave that question for trial
(if material) after the decision of the case.
The questions stated for the opinion of the court were, whether
the defendants were liable under the policy in respect of the loss,
(1) if it could have been avoided by proper care, and occurred
through negligence; (2) if it occurred accidently, without negli-
gence. The Queen's Bench Division gave judgment for the plain-
tiffs, and this judgment was affirmed by the majority of the Court
of Appeal (Lindley and Lopes, L. JJ.), Lord Esher, M. R., dis-
senting.
LORD BRAMWELL. My Lords, I cannot agree with the judgment
in this case. The donkey-engine was insured. The adventures;
and perils which the defendants were to make good, specified a
great many particular perils, and "all other perils, losses and mis-
36
562 TERMS OF THE MARINE INSURANCE CONTRACT.

fortunes that have or shall come to the hurt, dtriment or damage

of the aforesaid subject-matter of insurance, or any part thereof."
Words could hardly be more extensive, and if the question, I ought
to say a question on them, arose for the first time, I might perhaps
give them their natural meaning, and say they included this case.
But the question does not arise for the first time. It has arisen
from time to time for centuries, and a limitation has always been
put on the words in question.
Definitions are most difficult, but Lord Ellenborough's seems
right: "All cases of marine damage of the like kind with those
specially enumerated, and occasioned by similar causes." I have
had given to me the following definition or description of what
would be included in the general words: "Every accidental cir-
cumstance not the result of ordinary wear and tear, delay, or of the
act of the assured, happening in the course of the navigation of the
ship, and incidental to the navigation, and causing loss to the sub-
ject-matter of insurance." Probably a severe criticism might detect
some faults in this. There are few definitions in which that could
not be done. I think the definition of Lopes, L. J., in Pandorf v.
Hamilton, 16 Q. B. D. 629, 633, very good: "In a seaworthy ship
damage to goods caused by the action of the sea during transit not
attributable to the fault of anybody," is a damage from a peril of
the sea. I have thought that the following might suffice: "All
perils, losses and misfortunes of a marine character, or of a char-
acter incident to a ship as such." I put it forward with distrust,
but it would comprehend all the cases cited where the assured has
recovered, save perhaps the Panama case [infra]. For example, it
would include the case of the ships blown over while in dock, of the
ship damaged by its moorings giving way, of the ship fired into by
a ship. It would not include the cases put by Lord Esher, nor
the case I put of the captain seized with giddiness dropping the
chronometer into the hold; nor would it include the present case.
The damage to the donkey engine was not through its being in a
ship or at sea. The same thing would have happened had the boil-
ers and engines been on land, if the same mismanagement had taken
place. The sea, waves and winds had nothing to do with it.'
As a matter of principle and reasoning I think the decision
wrong. I think the judgment in the West India and Panama

'As a result of this case, the so-called "Inchmaree" clause was

inserted in marine policies to cover casualties due to machinery.
 TERMS OF THE MARINE INSURANCE CONTRACT. 563

Telegraph Company v. Home and Colonial Marine Insurance Com-

pany, 6 Q. B. D. 51, wrong on the reasoning I have used. With
most sincere respect, though it is true that what the winds are to a
sailing vessel steam is to a steamer, that does not decide the ques-
tion, for it is not every damage to sails that would be covered by
the policy. Suppose damage by, rats or mildew to spare sails.
As to Lord Esher's judgment in that case, I concur in his criticism
on it in the present case. And I agree with Lopes, L. J., that the
word "fire" in the policy will not sustain that judgment. The
Lord Justice put the case of a spar falling on the deck, while get-
ting under sail, and being broken, and says it would be within the
policy. Perhaps; but if it would, it would be because it was a
loss in navigation, a loss which could not have happened except on
a ship. But suppose the spar was being used to erect an awning
on deck to give shelter to dancers or the like, and was broken, the
case would not be covered by the policy. It would not be a marine
loss, not a loss with which the sea, or navigation, or the ship, as a
ship, had anything to do.
I do not like cutting down the natural meaning of words; there
is always great difficulty in saying what should be substituted.
But it is admitted that some limit must be put on those in question
here. I think a proper limit woula exclude this loss. So that the
judgment of the Master of the Rolls is, I think, right, and that of
the other judges wrong, and their decision should be reversed.
Order appealed from and the judgment of the Queen"s Bench
Division reversed; cause remitted to the Queen's Bench Division.
[Opinions were also given by LORD HALSBURY, L. C., LORD HER-
SCHELL and LORD MACNAGHTEN.'

REISCHER v. BORWICK.
[1894] 2 Q. B. D. (C. A.) 548.
THE plaintiff was the owner of the paddle-wheel steam tug Rosa,
which was insured by the defendants. The insurance was ex-
pressed in the policy to be, "Only against the risk of collision (as
per clause attached), and damage received in collision with any

1 See note on inherent defect in vessel and perils of the sea, 9 A. L.

R. 1314 (1920).
564 TERMS OF THE MARINE INSURANCE CONTRACT.

object, including ice." The clause attached related to collision

with other vessels; the policy did not include "perils of the sea."
During the currency of the policy, the Rosa was engaged in a
trip on the Danube. In the course of her voyage, on March 4,
1892, she came into a collision with a floating snag, which first
struck the bottom of the ship, and then fouled the port paddle-
wheel and caused considerable damage to the machinery of the
ship. Among other things, the cover of the condenser was broken,
and a hole made in it about twenty square inches in area. The water
poured in through the ejection pipes into the condenser, and thence
through the hole in the cover into the ship. The captain anchored
the ship, and set the pumps to work. He also succeeded in plug-
ging the ejection pipes with wooden plugs; and so long as the ship
was at anchor the water was thus prevented from entering the
vessel to any dangerous extent. The captain then applied for
assistance, and on March 6 a tug was sent to tow the Rosa to the
nearest dock for repairs. The tug commenced to tow the Rosa
on the same evening; but on the morning of March 7, while she
was being towed, the water poured in rapidly through the hole in
the cover of the condenser, and it was found that the plug in the
port ejection pipe had fallen out and the ship was in danger of
sinking. The towing was stopped, but the captain was unable to
stay the rush of water through. the ejection pipe, and, in order to
save the lives of the crew, gave orders to the tug to tow the Rosa
ashore. 'This was done, and she was grounded on the south bank
of the river, where she was abandoned by the plaintiff.
The plaintiff claimed damages for the total loss of the vessel.
The defendants paid into court 371. 10s. to cover the damage caused
by the collision with the snag up to the time when the vessel was
taken in tow by the tug, but denied any liability for the subsequent
damage, contending that the proximate cause of that damage was
not the collision, but the towing to the port of repair. Kennedy,
J., who tried the action without a jury, gave judgment for the
whole amount claimed, and the defendants appealed.
DAVEY, L. J. In this case the appellants admit that damage
done by water coming through a hole caused by a collision with any
object is damage against which the assurers are bound to indemnify
the assured. What is the causa proxima of the damage sustained in
this case? The only answer seems to me to be the inrush of water
through the hole in the condenser., What made the hole in the
condenser? The collision made the hole in the condenser, and the
 TERMS OF THE.MARINE INSURANCE CONTRACT. 565

broken condenser -was a continuing source of risk and danger.

The failure of the attempt tomitigate or stop the damage arising
from the breach in the condenser cannot in my opinion be justly
described as the cause of the ultimate damage. I therefore agree
in the judgment which has been given.
Appeal dismissed.'
[Opinions were also given by LINDLEY and LOPES, L. JJ.

6. GENERAL AVERAGE.

THE MERCHANTS' AND MINERS' TRANSPORTATION

COMPANY OF BALTIMORE v. THE ASSOCIATED FIRE-
MEN'S INSURANCE COMPANY OF BALTIMORE.
53 Md. 448.- 1879.
ROBINSON, J. This suit is brought by the appellant, owner of
the steamer George Appold, on a fire policy issued by the appellee,
insuring said steamer against loss by fire.
It appears that on the 20th of October, 1877, while loading at
the port of Savannah, a fire was discovered among a cargo of cotton
stowed in the forehold of the steamer, and in order to save both the
steamer and cargo from destruction, it was found necessary to sub-
merge the vessel. The damages direct and indirect to the steamer
itself were estimated at $2,500, and the damages to the cargo at
$10,500. The adjuster to whom the matter was referred decided
that the damages to the cargo were, according to the usage and laws
of the port of Baltimore, subject to the law of general average;
and the appellant, as owner of the steamer, was obliged to con-
tribute to the cargo the sum of $5,231.29. The steamer was insured
by the appellee and other fire companies, to the amount of $80,000;
and the cargo was insured under marine policies. The fire com-
panies tender themselves ready to pay $2,500, the amount of dam-
age sustained by the steamer, but the appellant claims that in addi-
tion to this sum, he is entitled to recover the amount paid by him
under the law of general average to the cargo. And this is the
question, and the sole question, at issue between the parties. . .
.

I See also the exhaustive opinion as to proximate cause, in Brown

v. Ins. Co., 61 N. Y. 332 (1874).
566 TERMS OF THE MARINE INSURANCE CONTRACT.

In the absence then of any authority to support the appellant's

contention, let us see whether it can be supported on principle.
The whole scope and object and purposes of a fire policy are differ-
ent from. those of a marine policy. By the former, the insurer
agrees to indemnify against loss by fire. That is the only peril for
the loss by which he agrees to become responsible; and we have no
right to enlarge the contract, or to extend the risk by implication.
By a marine policy, the underwriter engages to pay not only the
loss or damage to the thing insured, but also to reimburse the owner
all sums paid by him under the laws of general average.
General average is a contribution by all the parties in a sea
adventure, to a loss suffered for the common benefit of all. In such
cases, where any sacrifice is deliberately and voluntarily made, or
any expense is fairly and bona fide incurred, to prevent total loss,
or some greater disaster, it is but just and right, that the sacrifice
or expense should be borne relatively by the owner of the ship,
freight and cargo, to the end that the loss may fall equally upon
all the parties in interest. Birkley v. Presgrave, 1 East, 228;
Hallett v. Wigram, 9 C. B. 580; Fletcher v. Alexander, 37 L. J.
(C. P.) 196, L. R. 3 C. P. 380. For risks thus assumed, and which
may be said to be co-extensive with the perils of the sea- embrac-
ing general average, salvage and abandonment, the insured pays a
premium more than five times greater than the premium against
loss by fire alone. If the appellant desired protection against the
risk of general average, or against other perils of the sea, he should
have insured under a marine policy. If he preferred to insure at
a lower rate of premium, and to take upon himself all risks, other
than loss by fire, he has no reason to complain, because the insurer
refuses to reimburse him for a loss not covered by the policy; and
which by the well-settled law of insurance constituted no part of
the contract between the parties.
In the many cases relied on by the counsel for the appellant, the
questions considered and decided arose on marine policies, under
which the rights and obligations of the parties are altogether
different from those belonging and incident to a fire policy. The
policy sued on in this case limits the liability of the appellee to
losses to the steamer itself by fire, and upon such a policy the appel-
lant is not. entitled either upon principle or upon authority to
recover the amount which under the law of general average he was
obliged as owner of the vessel to contribute to the cargo, even
 TERMS OF THE MARINE INSURANCE CONTRACT. 567
though the damages to the cargo were occasioned by the means
used to extinguish the fire in the vessel.
The statement of facts shows that the damages direct and indirect
to the steamer were $2,500, and this sum the appellee tenders itself
ready to pay. There was no error therefore in refusing to grant
the appellant's prayers, and the judgment must be affirmed.

7. TOTAL Loss AND ABANDONMENT.

ST. PAUL FIRE & MARINE INS. CO. v. BEACHAM.

128 Md. 414; 99 AtI. 708.-1916.
ACTION of assumpsit against the appellant upon an insurance
policy, the certificate of which is incorporated in the declaration.
This certificate provides that the company insures the assured in
the sum of $2,400 "on bills and disbursements free of particular
and general average." The declaration alleges that the effect of
issuing said certificate of insurance was that the defendant com-
pany insured the plaintiff in the sum of $2,400 against the loss by
said plaintiff (on account of marine disaster to the schooner Jose-
phine), of a certain unpaid balance due him on a repair bill for
work and labor done and goods and materials furnished by him to
and upon said schooner, amounting to the sum of $2,473.17. It
also alleges that said schooner Josephine "met with a marine dis-
aster while on a voyage from Savannah, Ga., to New York, N. Y.,
to wit, stranding off Ocracoke, N. C., and as a consequence of said
stranding became a constructive total loss, and that said disaster
was not a case of particular or general average." Demurrer.
Demurrer overruled. Judgment for plaintiff.
PATTISON, J. . . . The sole question presented by this
appeal is whether the appellant is liable upon the policy sued on
in case of "a constructive total loss" of the vessel insured. If it
should be held that the insurer is liable in such case, then the
demurrer was properly overruled, but, on the other hand, if there
is no such liability, the demurrer should have been sustained.
In considering and determining the question involved, it may be
well for us to state the meaning of some of the terms here used.
By the use of the term "particular average" is meant a partial
loss as distinguished from a total loss or a general average loss.
568 TERMS O' THE MARINE INSURANCE CONTRACT.

26 Cyc. 670; Hughes on Admiralty, page 83; Arnould (9th ed.),

§§ 1008, 1009, and 1023. A general average loss in marine insur-
ance is the amount lost to the owner of the ship, cargo, freight, or
other interest for any voluntary sacrifice made or any extraor-
dinary expense incurred by one interest for the benefit of all, or, as
defined by Mr. Hughes, in his work on Admiralty, page 39:
"It is the principle of law which requires that the parties inter-
ested in a marine venture shall contribute to make up the loss of
the sufferer when there is a voluntary sacrifice of part of the
venture made by the master, as representative of all concerned,
for the benefit of all."
The certificate in this case was issued free of both particular and
general average, and, as we have said, the declaration alleges that
there was a constructive total loss of the vessel.
Under the American rule there is a constructive total loss,
although not actually total when the insured has the right to
abandon the vessel, and this right inures to him if the cost of sav-
ing and repairing the vessel exceeds one-half her value when
repaired, in which case, the owner, by giving the underwriter
notice of abandonment, may surrender his vessel and claim for
total loss. By the English rule it is only so when such cost exceeds
the full value. Hughes, pages 78 and 80; 26 Cyc. 689; Arnould's
Marine Insurance (9th ed.), § 1117.
There is an actual total loss when the subject-matter is wholly
destroyed, or lost to the assured, or where there remains nothing
of value to be abandoned to the insurer. 26 Cyc. 686; Hughes, 78.
It is conceded by the plaintiff that, to enable him to recover
under this policy, it being issued free of particular and general
average, it must be shown that there was a total loss of the vessel,
but that it need not be an actual total loss; that a constructive
total loss is all that need be shown to entitle him to recover. The
defendant, however, insists that an actual total loss must be shown;
otherwise the plaintiff cannot recover under the policy. It is
admitted by the demurrer that there was a constructive total loss,
and thus we have only to determine the legal effect of the clause
contained in the policy "free of particular and general average."
" 'Particular average,' as used in this policy, means partial loss,
and 'free of particular average' is equivalent to 'against total loss
only.' " Pierce et al. v. Columbian Insurance Co., 14 Allen
(Mass.) 320. In Adams v. McKenzie, 32 L. J. C. P. 92, a policy
of insurance on a ship contained a clause that the insurance was
 TERMS OF THE MARINE INSURANCE CONTRACT. 569

against "total loss only," and there was shown to be a constructive

total loss. It was there held that the owners were not excluded
by the terms of the policy from recovering upon it. In Heebner v.
Eagle Insurance Co., 10 Gray (Mass.) 131, the policy insuring the
steamer Chesapeake and upon which the action was brought con-
tained the clause "against total loss only." One of the questions
there presented was whether the plaintiff could recover for a con-
structive total loss. Chief Justice Shaw, speaking for the court,
said:
" The natural and grammatical construction of the language,
'liable for a total loss only,' is, any total loss, as that term is
known and understood by those conversant with the practice and
law of insurance. The distinction between an actual and construc-
tive total loss is well known and understood; and, if the parties
intended to qualify it, and limit the liability to either particular
species of total loss, we think they would so have expressed it.
But there is nothing in the policy to indicate that the insurers are
not to be liable for a constructive total loss, if perfected as such by
an abandonment; and we see nothing in the principles of the law
of insurance from which such a distinction can be implied against
the letter of the contract. . . . There seems to be no reason in
the nature of the contract, or of the business to which it refers,
why the liability of the insurers should not extend as well to a
constructive, as to an actual, total loss. . . . All further navi-
gation of the vessel was defeated and put an end to. . . . The
courts are therefore of opinion that under this policy the defend-
ants were liable for a constructive total loss by the perils insured
against, if followed by a legal abandonment." . .
.

The defendant in support of its position relies chiefly upon the

case of Washburn & Moen Mfg. Co. v. Reliance Marine Ins. Co.,
179 U. S. 1. The insurance in that case was upon a cargo of
wire- a memorandum article- and in the clause contained in
the policy the cargo was warranted by the assured "free from
average unless general," and by the rider "free of particular
average, but liable for absolute total loss of a part if amounting to
5%." The court held that the memorandum and marginal clauses
were not contradictory, but were to be read together. It said:
"The warranty or memorandum clause was introduced into poli-
cies for the protection of the insurer from liability for any partial
loss whatever on certain enumerated articles, regarded as perish-
able in their nature, and upon certain others, none under a given
570 TERMS OF THE MARINE INSURANCE CONTRACT.

rate per cent. This was about 1749, and since then, in the growth
of commerce, the list of articles freed by the stipulation from par-
ticular average has been enlarged so as to embrace many which,
though they may not be inherently perishable, are in their nature
peculiarly susceptible to damage. . . . The general rule is
firmly established in this court that the insurers are not liable on
memorandum articles except in case of actual total loss, and that
there can be no actual total loss where a cargo of such articles has
arrived, in whole or in part, in specie, at the port of destination,
but only when it is physically destroyed, or its value extinguished
by loss of identity."
The court then refers to and discusses a number of cases in
support of this rule. In all of these cases the insurance was upon
memorandum articles, and not upon the vessel as in the case before
us and the cases to which we have referred in support of the con-
tention of the plaintiff. What the court said in Washburn & Moen
Mfg. Co. v. Reliance Insurance Co. was intended, we think, to apply
only to insurance upon memorandum articles. The court there
said in discussing, with approval, the case of Mareardier v. Chesa-
peake Ins. Co., 8 Cranch, 39, that some of the goods insured in that
case "were warranted 'free from average, unless general,' and
damages were claimed for a constructive total loss of these goods,
but the claim was disallowed. After stating the American rule
that a damage of ordinary goods exceeding 50 per cent entitles the
insured to recover for a constructive total loss, Mr. Justice Story
continued: 'But this rule has never been deemed to extend to a
cargo consisting wholly of memorandum articles. The legal effect
of the memorandum is to protect the underwriter from all partial
losses; and if a loss by deterioration, exceeding a moiety in value,
would authorize an abandonment, the great object of the stipula-
tion would be completely evaded. It seems, therefore, to be the
settled doctrine that nothing short of a total extinction, either
physical or in value, of memorandum articles . . . would
entitle the insured to turn the case into a total loss.'
"

This, it seems, is a recognition of the fact that a different rule

applies (and the reason therefor is stated) between memorandum
articles and other property that may be insured, such as the
vessel itself, as in this case. That it was the intention of the court
to make this distinction, we think, is manifest from the statement
found in the opinion that:
"In the United States the general rule is that a damage
 TERMS OF T1HE MARINE INSURANCE CONTRACT. 571
exceeding 50 per cent justifies abandonment and recovery as
for constructive total loss. Marcardier v. Chesapeake Ins. Co.,
supra; Le Guidon (Paris, 1831), c. 7, art. 1; chapter 5, art. 8.
But this principle is not applicable to memorandum articles in
respect of which the exception of particular average excludes a
constructive total loss."
The opinion makes no allusion to the Massachusetts cases here
referred to, in support of the plaintiff's contention, in which the
question of insurance of memorandum articles is not involved, but
it does refer to and discuss the case of Kettell v. Alliance Ins. Co.,
10 Gray (Mass.) 144, in which the cargo consisting of tin plates was
insured "partial loss excepted." In that case Chief Justice Shaw
ruled, for the court, that the exception did not come under the
memorandum clause. He recognized a distinction between tin and
brass goods liable to tarnish and memorandum articles liable to
decay, and held that the natural construction of the exception was
"that it leaves the insurer liable for all total losses, but it makes
no distinction between absolute and constructive total losses; and,
in case of a constructive total loss, which gives the assured a right
to abandon, and he exercises the right, it becomes a legal total loss,
as if absolute in its nature," and the insurers were held liable for
such constructive total loss under the 50 per cent rule. Chief
Justice Fuller, speaking for the court in Washburn & Moen, supra,
said, in discussing the Kettell case, that:
"If the contract in that case had been in terms and arrangement
the same as the contract in this, it does not follow that the same
result would have been reached. But we must not be understood
as accepting the views expressed in Kettell's case, great as is the
weight attaching to the utterances of the distinguished judge who
delivered the opinion. We do not think the words, 'partial loss
excepted,' had any other meaning as applied to tin plates than if
applied to articles having an inherent tendency to decay. Tin
plates may not be perishable in their nature in the sense of liability
to corporeal destruction, but their original character as tin plates
is perishable by reason of liability to corrosion and rust."
It was because of the distinction recognized in the Kettell case
between tin and brass, and memorandum articles liable to decay,
that the court in the Washburn & Moen case refused to adopt the
conclusion of Chief Justice Shaw. It is clear, we think, that what
was said in the Supreme Court decision was intended to apply only
to cases where the property insured consisted of memorandum
572 TERMS OF THE MARINE INSURANCE CONTRACT.

articles, and this conclusion, in our opinion, is strengthened by the

fact that if such distinction was not intended, some allusion would
have been made to the Heebner case and others, where the principle
contended for by the appellees is laid down with great clearness
and force.
In this case the insurance is upon the vessel, and not upon
memorandum articles, and is distinguishable from the Washburn

&
Moen case, supra. The plaintiff was, in our opinion, entitled to
recover under the policy in this case for a constructive total loss.
We will therefore affirm the judgment of the court below.'

' See note, L. R. A. 1916F, 1171.

Memorandum clause and constructive total loss. " The action is
is brought on a policy of marine insurance effected on a cargo of
apples, potatoes, and other vegetables shipped on a canal boat. The
boat was sunk by an obstruction in the Erie Canal. Part of the
cargo was recovered, though in a damaged condition, and reshipped to
the plaintiff. This portion was sold. The amount realized on the
sale was but slightly in excess of the handling and selling charges, and
was less than the sums expended by the defendant in raising and
shipping the cargo, not including therein the expenses of the sale.
The trial court found that there was a constructive total loss of the
property insured. . . . The material clauses of the policy under
which the controversy arises are: First, 'The said loss or damage to
be estimated according to the true and actual cash value of the said
property at the place of destination on the day of the disaster. . .
.

But fruit and vegetables, and other articles perishable in their own
nature, are free of particular average, . . . The first provision
is generally found in marine policies, though in different forms, and
is of quite remote origin. It is known both in the textbooks and in
judicial opinions as the 'memorandum.' 2 Arn. Ins. § 993; 1. Pars.
Ins. 627. The reason which dictated this provision is said to be that
there are many articles of a perishable nature, with regard to which
it is very difficult to discover how far their deterioration is owing to
the perils of the sea against which the insurance is effected, and how
far to their own inherent decay or decomposition. . . . It is a
cardinal rule in the interpretation of insurance policies that doubt-
ful expressions should be construed most favorably to the insured.
Hoffman v. Insurance Co., 32 N. Y. 405; London Assurance v. Com-
panhia De Moagens Do Barreiro, 167 U. S. 149; May, Ins. § 175.
The use of the term 'total loss' in two different senses, one as referring
to an actual total loss, and the other to a constructive total loss, is a
practice that has long obtained in commerce as well as in textbooks
and judicial decisions. Mr. Parsons says (volume 2, p. 68): 'Total
loss of maritime property in insurance is either actual (or, as it is
sometimes called, absolute) or constructive. . . .' As an original
 TERMS OF THE MARINE INSURANCE CONTRACT. 573
proposition, it is difficult to see why, under the rule of construction
stated, the term, when used in an insurance policy, should not include
both kinds of loss, or why the same rule should not apply to the con-
struction of the memorandum as to the other parts of the
policy. . . . Much as we hesitate to place our view of the law
even in apparent opposition to that of the supreme court of the United
States [see quotation from Washburn. & Moen Co. v. Ins. Co. in
principal case, supra], we feel constrained to adhere to the doctrine
in Chadsey v. Guion [97 N. Y. 333], that, for a constructive loss on
the whole of the articles insured, the underwriter is liable."-Devitt
v. Ins. Co., 173 N. Y. 17 (1902). See notes, 3 Columbia Law Review,
284 (1903); 16 Harvard Law Review, 375 (1903).
Abandonment. "Where there is a constructive total loss; the as-
sured may either treat the loss as a partial loss, or abandon the sub-
ject-matter insured to the insurer and treat the loss as if it were an
actual total loss." English Marine Ins. Act, § 61. The Act further
provides in §62 that notice of election to abandon must be given to
the insurer; that the notice may be oral or written and in any terms
indicating the intent to abandon; that it must be given with reasonable
diligence; that the rights of the assured are not prejudiced by the
fact that the insurer refuses to accept the abandonment; that accept-
ance may be express or implied, though mere silence is not an ac-
ceptance; that abandonment is irrevocable, after acceptance, and that
acceptance of notice conclusively admits liability for the loss and the
sufficiency of the notice. By § 63 it is provided, as to the effect of
abandonment, that the insurer is entitled to take over the interest'of
the insured in whatever may remain of the subject-matter and all
proprietary rights incidental thereto; and entitled to any freight in
course of being earned and which is earned by the ship subsequent to
the casualty causing the loss, less the expense of earning it incurred
after the casualty, and where the ship is carrying the owner's goods
the insurer is entitled to reasonable remuneration for carrying them
subsequent to the casualty causing the loss.
As to evidence, by-conduct, of acceptance of abandonment, see note,
15 Columbia Law Review, 362 (1915).
"By the well-settled principles of our law, the state of the facts, and
not the state of the information at the time of the abandonment, con-
stitutes the true criterion, by which we are to ascertain whether a total
loss has occurred or not, for which an abandonment can be made. If
the abandonment, when made, is good, the rights of the parties are
definitely fixed; and do not become changed by any subsequent events.
If, on the other hand, the abandonment, when made, is not good, sub-
sequent circumstances will not affect it so as, retroactively, to impart
to it a validity which it had not at its origin. In some respects our
law on this point differs from that of England; for, by the latter, the
right to a total loss, vested by an abandonment, may be divested by
subsequent events, which change that total loss into a partial loss."
Bradlie v. Ins. Co., 12 Pet. 378 (1838). The English rule as to when the
rights of the parties are fixed by an abandonment is stated to be "that
574 TERMS OF THE MARINE INSURANCE CONTRACT.

if in the interval between the notice of abandonment and the time when
legal proceedings are commenced there has been a change of circum-
stances reducing the loss from a total to a partial one or in other words,
if at the time of action brought the circumstances are such that a
notice of abandonment would not be justifiable, the assured can only
recover for a partial loss." Blairmore Co. v. Macredie [1898], A. C.
593. In this case, after the vessel was sunk, notice of abandonment
was given to the insurers, but thereafter and before action brought,
they, at their own'expense, raised the ship and claimed that as the
ship could at the date of the action have been repaired by the ex-
penditure of less money than her total value, the loss was not total
but a partial one. It was held that the insurers could not change a
total loss of this character into a partial loss by raising the ship at
their own expense. See also Wallace v. Ins. Co., 22 Fed. 66 (1884).

8. SUE AND LABOR CLAUSE.

AITCHISON v. LOHRE.
4 A. C. 755.- 1879.
(House of Lords.)
LORD BLACKBURN. . . . It appears from the statements in
the case that the Crimea on the voyage home during the month of
January encountered a succession of stormy weather, and in con-
sequence of the perils of the seas great damage was done to her,
and she was reduced to a leaky and water-logged condition. It
appears, incidentally, that some general average had arisen, for a
proportion of which the ship was liable. The case then states that
"On the 30th of January, the ship, being then in great danger of
being completely lost, and being without fresh water or provisions,
and in a. helpless condition and not capable of being navigated,
those on board of her sighted the steamship Texas, which ultimately
took her in tow, without any agreement being come to as to re-
muneration for the service, and took her into Queenstown, and
on or before the 11th of March she was placed in safety near the
wharf of the Tictoria Dry Dock Company." . . . The policy
contains the usual clause as to suing or laboring. The Queen's
Bench Division was of the opinion that the salvage, or general
average expeses. decribed in the case, did not come within that
clause. The Court of Appeal was of a different opinion. In the
judgment delivered by Lord Justice Brett, it is said, 3 Q. B. D. at
 TERMS OF THE MARINE INSURANCE CONTRACT. 575

p. 566, that "the general construction of the clause is that if, by

perils insured against, the subject-matter of insurance is brought
into such danger that, without unusual or extraordinary labor or
expense, a loss will very probably fall on the underwriters, and if
the assured or his agents or servants exert unusual or extraordinary
labor, or if the assured is made liable to unusual or extraordinary
expense in or for efforts to avert a loss, which, if it occurs, will fall
on the underwriters, then each underwriter will," etc. Now if the
part of this which is above emphasized is correct, there can be no
question that both salvage and general average are unusual ex-
penses to which the assured have become liable in consequence of
efforts to avert a loss. And such seems to be the opinion of the
editor of the last edition of Arnould on Insurance, who says, 2
Arn. (5th ed.) at p. 778, that salvage "is recoverable from him in
virtue of an express clause in the policy inserted for such a case,
and known as the sue and labor clause"; but for that position he
cites no authority, and though the Court of Appeal, in this case,
agreed with him, I am unable to do so. With great deference to
the judges of the Court of Appeal, I think that general average
and salvage do not come within either the words or the object of
the suing or laboring clause, and that there is no authority for
saying that they do. The words of the clause are that in case of
any misfortune it shall be lawful "for the assured, their factors,
servants, and assigns, to sue, labor, and travel for, in, and about
the defense, safeguard and recovery of" the subject of insurance,
"without prejudice to this insurance, to the charges whereof we
the insurers will contribute." And the object of this is to encour-
age and induce the assured to exert themselves, and, therefore, the
insurers bind themselves to pay in proportion any expense incurred,
whenever such expense is reasonably incurred for the preservation
of the thing from loss, in consequence of the efforts of the assured
or their agents. It is all one whether the labor is by the assured
or their agents themselves, or by persons whom they have hired
for the purpose, but the object was to encourage exertion on the
part of the assured; not to provide an additional remedy for the
recovery, by the assured, of indemnity for a loss which was, by the
maritime law, a consequence of the peril. In some cases the agents
of the assured hire persons to render services on the terms that
they shall be paid for their work and labor, and thus obviate the
necessity of incurring the much heavier charge which would be
incurred if the same services were rendered by salvors, who are to
576 TERMS OF THE MARINE INSURANCE CONTRACT.

be paid nothing in case of failure, and a large remuneration pro-

portional to the value of what is saved in the event of success. I
do not say that such hire may not come within the suing and labor-
ing clause. But that is not this case. The owners of the Texas
did the labor here, not as agents of the assured, and being to be
paid by them wages for their labor, but as salvors acting on the
maritime law, which, as explained by Lord Chief Justice Eyre, in
Nicholson v. Chapman, 2 H. Bl. at p. 257, already cited, gives them
a claim against the property saved by their exertions, and alien
on it, and that quite independently of whether there is an insur-
ance or not; or whether, if there be a policy of insurance, it con-
tains the suing or laboring clause or not. The amount of such
salvage occasioned by a peril has always been recovered, without
dispute, under an averment that there was a loss by that peril;
see Cary v. King, Cas. t. Hardw. 304; and I have not been able to
find any case in which it was recovered under a count for suing
and laboring. I do not much rely on this, for it is very likely that
such counts often were in the declaration, and that therefore no
inquiry was made whether the loss was recoverable under one
count or another; but at least there is no authority for the position
that salvage (properly so called) was recoverable under that count.
There have been very few cases in our courts in which it has
become necessary to discuss the nature of the suing and laboring
clause. Kidston v. The Marine Insurance, Law Rep., 1 C. P. 535,
is, I think, the only one in which there has been a recovery under
it. There, however,all the extra labor was directly and voluntarily
employed by the agents of the assured; and the charges were paid
by them in consequence of this employment. In the very able and
elaborate judgment of Mr. Justice Willes, not a word can be found
to countenance this extension of the construction of the clause
beyond what seems to me both its language and its object; and,
except the passage introduced for the first time into Arnould by
the present editor, I can find nothing in any textbook tending to
support it. I, therefore, think that the judgment of the Court of
Appeal should be reversed and that of the Queen's Bench Division
restored. . .
.

[Opinions also by the LORD CHANCELLOR, by LORD HATHERLEY

and by LORD O'HAGAN.]'

'See Sharpe, "The sue and labour clause," 22 Law Quarterly Re-
view, 406 (1906).