CHAPTER XX.

MARINE POLICY-CONCLUDED.

$209. Perils of the Seas.-These denote all marine casualties resulting from the unusual or violent action of the elements as distinguished from their natural and silent influence upon the fabric of the vessel. But they do not, as has been already observed, include the deterioration of a vessel's hull and materials, commonly called wear and tear, which is incidental to her employment in navigation and her exposure to the ordinary action of the elements; nor do they include injuries to the machinery incident to its ordinary operation.1

Vessels cannot be navigated without encountering the action of wind and wave, and are often liable to be on the ground or to come into contact with piers without the happening of anything abnormal. At the same time, it is to be remembered that any ordinary occurrence will become extraordinary if qualified by unusual conditions, but there must be something fortuitous to constitute a peril of the sea.

Thus a transport in government service was ordered into Boulogne, where there is a dry harbor, and was moored near one of the quays. The vessel took the ground on the ebb of the tide, as was inevitable; but, owing to the presence of a considerable swell in the harbor, she struck the ground with unusual violence, and subsequently eighteen of her knees were found to be broken. The court held that this damage was the result of a peril of the sea.2

In another case, the ship, which was insured under a time policy, proceeded in the course of her trading to Sunderland, where she was moored head and stern, and took the ground in the usual way at the ebb of the tide. The beach was hard and

1 Thames & Mersey Marine Ins. Co. v. Hamilton, L. R., 12 App. Cas. 484.

2 Fletcher v. Inglis, 2 B. & Ald. 315.

steep, and the ship lay with a slight list toward it. She appeared to strain in this position, especially when taking the ground and floating, and after remaining some time in the place it was found that she was hogged. The Court of Common Pleas held that the damage received under the above circumstances was not caused by perils of the seas, but fell within the designation of wear and tear. Here the vessel on her arrival at Sunderland went up the river, and, in consequence of the rising and falling of the tide, rested upon the river's bed and received damage. There was nothing fortuitous, no peril, no accident. Where live cattle carried between decks were thrown violently together and killed by the tremendous rolling of the sea, though not touched by the water, this was held to be a loss directly by the sea." 2

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Sails split by the wind or blown away while set, unless occasioned by the ship's grounding or coming into collision, or in consequence of damage to the spars to which the sails are bent, are not, according to the general practice, chargeable to underwriters, although the weather may have been stormy at the time of the occurrence.

This custom is to be supported rather on grounds of expediency than of principle. A sail which is blown away in a hurricane is as truly lost by the operation of sea perils as a mast which is carried overboard by the same cause. On the other hand, if the splitting or carrying away of sails in use were to be allowable whenever they were subjected to an extraordinary strain, there would be much practical difficulty in the endeavor to discriminate between ordinary and extraordinary weather, especially in view of the fact that the resistance which a sail is capable of offering to the wind depends to a considerable extent upon its quality and condition.

There is a similar rule of practice relative to rigging, which is, that rigging injured by straining or chafing is not charged to underwriters, unless such injury is caused by blows of the sea, grounding, or contact, or by displacement through sea perils of the spars, channels, bulwarks, or rails.

§ 210. Foundering at Sea.-Foundering at sea is included among the perils of the sea if caused by the violence 'Magnus v. Buttemer, 11 C. B. 876. 2 Snowden v. Guion, 101 N. Y. 458.

of the winds or waves or any other accidental occurrence, but not so if caused by overloading, defect, or inherent weakness.

If a ship has not been heard of for so long a time after sailing that there remains no reasonable hope of her safety, she is presumed to have foundered at sea. There is neither in this country nor in England any fixed rule as to when that presumption arises. In England, after an interval of time supposed to be sufficient to cover the reasonable chances of arrival, the ship is posted at Lloyd's as missing, and then the underwriters are expected to pay.

§ 211. Grounding.-Grounding, whether arising from stress of weather, ignorance of the locality, blunder or stupidity, the desire to avoid some approaching vessel or other danger, in short, for any reason out of the ordinary course of things in the voyage, is considered one of the perils of the sea.

§ 212. Collision.-Collision is also a peril, and this whether it be the result of inevitable accident or fault on the part of the ship insured, or of fault on the part of the other ship; for, on the principle of causa prorima, the underwriter must pay, be the fault whose it may. What he pays for is the damage to the thing he has insured. As for the liability of the owner of the ship in fault to pay for the damage suffered by the other, that is a matter with which his underwriter has, under the body of his policy, nothing at all to do. It is usual however, to provide for this liability by a distinct contract called the collision clause, a specimen of which will be found in the appendix.1

The principle of the collision clause is that the underwriters will relieve the insured of three-fourths of his liability to pay damages for loss of property in and on board the other ship. He is to take one-fourth himself, as a check upon carelessness in the choice of servants; and his responsibility in respect of loss of life and personal injury, as well as for damage to the cargo in his own ship, is left untouched.

There is a difference to the insured in the language of different collision clauses in respect to the matter of costs, a pro

1 London Steamship, &c., Ins. Co. v. Grampian S. Co., L. R., 24 Q. B. D. 663 (1890).

vision for which is sometimes omitted from the clause, in which case the underwriters are not responsible for their share of costs. The liability under the collision clause is not particular average; consequently is not subject to the limitation of five per cent.

213. Stress of Weather.-Under the head of sea perils is damage suffered through stress of weather; as by blows of the seas which carry away bulwarks, boats, deck houses, and the like; by losing masts and yards in a gale; springing of a leak through violent straining; shifting of the cargo, or becoming water-logged. The only difficulty in such cases consists in distinguishing between sea peril and wear and tear.

§ 214. Fire.-Fire may arise from a variety of causes -from lightning, the spontaneous combustion of the cargo, the negligence of the master or crew, the acts of enemies, or the precautionary measures of rulers (as in case of a vessel burned by the municipal authorities for fear of being infected).

The underwriter is liable for loss occasioned by fire, whether its origin is inexplicable or whether it can be assigned to one of the above-named or some other kindred cause, with the exception of combustion generated through the inherent defect of the subject insured, or in consequence of the goods having been shipped in a damaged state. But if the combustion is originated by sea damage sustained by the goods after shipment, it is covered by the policy; and however the fire may have been occasioned, if it extend to other goods which are unconnected with the cause of the disaster, or to the ship herself, the underwriter is responsible.1

Damage to cargo caused by pouring water into the hold, scuttling the ship, or taking other extraordinary measures to extinguish a fire, is recoverable in general average; 2 or it may be claimed direct in the first instance under the policy if the latter include the risk of particular average.

If, however, a package is on fire, and water is poured upon 1 Arnould, Mar. Ins. 760.

? Whitecross Wire & Iron Co. v. Savill, L. R., 8 Q. B. D. 653.

it to extinguish the fire, no allowance is made in general average for any damage by water to the package so affected, but the loss is particular average. The reason for this exception in practice appears to be, that an article which is ignited is deemed to be virtually lost, so that the action of pouring water upon it involves no sacrifice, but is intended to reduce the loss or effect a salvage.1

The risk of fire is covered during the whole of the transit of goods, on shore as well as on shipboard, provided the transit is for one entire or unbroken voyage, as with insurance on goods it almost always is.

It was held in one case that an explosion of steam caused by the bursting of a marine boiler, though not identical with fire, is a peril of a sufficiently like kind to be covered by the clause comprehending "all other perils, losses, and misfortunes." 2 But that case was subsequently criticised by the House of Lords and substantially overruled.3

§ 215. Perils of War.-The common feature in this list of perils is violence at the hands of man. The underwriter takes upon himself the burden of all loss or damage thus occasioned, whether it consist of injury to the vessel's hull, spars, and rigging, by an enemy's shot or shell, or by other hostile acts, or the total destruction of the property insured by the operation of the same causes. As, however, merchant vessels are not, in general, able to offer a successful resistance to the attack of an armed ship, the casualty which most frequently results from hostilities is capture.

Capture, in the proper signification of the term, is the forcible appropriation of property by an enemy or belligerent with intent to keep it; and also covers all losses directly occasioned by capture or seizure, whether legal or illegal, by mutinous passengers or slaves, regularly commissioned vessels of war, privateers, or pirates, with the single exception of capture of Americans' property by American ships in time of

war.

1 Arnould Mar. Ins., 722.

? West India & P. Tel. Co. v. Home, &c., Marine Ins. Co., 4 Asp. Mar. L. C. 341.

Thames & Mersey Marine Ins. Co. v. Hamilton, L. R., 12 App. Cas. 484 (1887).

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Cory v. Burr, 8 App. Cas. 405.