strain, or wear and tear. For this reason, the rule of prac tice formerly was to treat the breakage of a hawser, or parting of a chain cable, or breaking down of a windlass, as mere wear and tear, unless it could in some way be traced to an accident out of the common course, such as the falling of another ship athwart the hawser, so as to bring a double strain upon it, or the like. Latterly, there has been a tendency to relax this strictness, particularly with regard to chain cables; a duly tested chain, it is argued, ought not to give way except under some extraordinary strain, so that its giving way is itself a proof, not that the chain was faulty but that the strain was excessive.

As for a ship's calking-if, without being struck by seas, thrown on her beam ends, or meeting with bad weather, a ship on a long voyage gradually becomes leaky, this is a suspicious symptom of wear and tear, as affecting the hull. If, in such a case, it shall appear that the ship has not been calked for a long time, the ship-owner will probably have difficulty in establishing a claim on his insurers. But these are cases as to which it is hardly possible to lay down a rule; the principle is, that, before an underwriter can be made liable for the calking, it must be shown that the leakiness has been occasioned by more than ordinarily bad weather: and ordinarily bad weather is a relative term, varying with the season and kind of voyage; and the application of this principle to individual cases can only be made with the aid of experts.

224. Original Defect.-Underwriters are not liable for any loss which is the immediate result of an original defect in any part of the hull or materials.

For instance, where a chain parts owing to a defective link, the consequent loss of the anchor and chain is not recoverable. Again, there may be an original flaw in the welding of a sternpost, shaft, or other part of the hull or machinery, which, though at first so slight as to be imperceptible, gradually reveals itself and becomes enhanced by the working of the vessel at sea, until it culminates in a breakdown of the part affected. In such a case the cost of making good the injury will not form the subject of a claim under the policy.1

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

§ 225. Sea Damage and Ordinary Deterioration, Combined. When the repair of sea damage is combined with that of ordinary deterioration, it is often a work of considerable nicety for the adjuster to resolve the complications which ensue, and refer each description of damage to its proper head.

Preparatory to the consideration of a few of the cases of mixed damage which most frequently occur, it will be advisable to inquire how far such matters can be dealt with upon general principles. (1) In the first place it is to be remembered, that, where deterioration of any kind exists to such an extent as to make a vessel unseaworthy on sailing, the risk under a voyage policy will not attach. (2) Where the warranty of seaworthiness is not implied, or has been satisfied, the underwriters are liable for all loss or damage proximately caused by the perils insured against; and there is no other condition of the ordinary policy, whether express or implied, which exonerates underwriters from loss or damage by the perils insured against on the ground that the peril only became operative through the weakness of the thing exposed to it. (3) Deterioration by wear and tear is provided for by the deductions for improvement; but when an article is worn out, those deductions are inapplicable, as the article is practically lost by the ordinary deterioration. (4) The liability of the underwriter for the repair or renewal of any part of a ship's hull or materials, lost or damaged by the perils insured against, is unaffected by the presence of ordinary deterioration, excepting where that deterioration is so extensive that it would have involved the condemnation of the subject of it, irrespective of the further injury, in which case there is no liability on the part of the underwriter, as the ship-owner has sustained no loss by the perils insured against.

In applying these principles, we may first take a case where the combined damage was so great as to amount to a constructive total loss of the ship. A ship insured with the clause "allowed to be seaworthy for the voyage" encountered a violent storm, in consequence of which she was much damaged and had to put into a port of refuge. On examination it was found that many of the beams were broken, and many of the bolts and fastenings loosened; and that the vessel being old, and in

many parts decayed, the decayed parts could not be again made use of, as they would not bear rebolting, but would require to be replaced with new timbers. There was, however, no reason to doubt that the decayed parts were strong enough to have enabled the ship safely to perform the voyage, had it not been for the heavy weather encountered. It was estimated that the aggregate cost of the necessary repairs would exceed the value of the vessel when repaired. On an action upon the policy to recover for a constructive total loss, the learned judge who tried the case left it to the jury to say whether the cost of the repairs of the damage arising from the perils insured against would have exceeded the value of the vessel when repaired, directing them, if they were of that opinion, to find for the plaintiffs. The jury returned a verdict for the plaintiffs. A new trial was then moved for, on the ground that the jury should have been directed, in considering the repairs that were necessary, to exclude from the estimate all such repairs as the decayed state of some parts of the ship made necessary; but the court held that there had been no misdirection, adding that, having carefully examined the evidence, they saw no ground to suppose that any repairs had been included in the estimate which were not fairly referable to the perils of the sea. In this case, it is to be observed that the deterioration which the vessel had suffered by wear and tear was, in effect, cast upon the underwriter, as the necessity to make it good arose from the operation of the perils insured against.

§ 226. Application of these Principles to Particular Average. We have next to consider the application of the foregoing principles to the adjustment of particular average. For the sake of illustration, let it be supposed that a mast has been sprung by a peril of the sea, and has likewise an inherent defect. If that defect existed on the sailing of the vessel to such an extent as to render her unseaworthy, the risk, under a voyage policy, would not attach. On the assumption that the warranty of seaworthiness had been complied with, or was not implied, the underwriters would be liable for the loss sustained by the assured through the springing of the mast by sea perils, though the inherent defect may have con. 'Phillips v. Nairne, 4 C. B. 343.

tributed to that result. If, however, the weather were only ordinary, and the mast, which could have resisted the strain exerted upon it in the absence of the defect, were sprung in consequence of the defect, the underwriters would be free from liability.

The extent of the loss sustained by the assured through the springing of the mast by sea perils has next to be ascertained. If the inherent defect were so great as to involve the condemnation of the mast, irrespective of the injury by sea perils, the assured, having sustained no loss by the latter, would have no claim under the policy. If, however, but for the injury by sea perils, the mast would still have been serviceable, the underwriters would be liable for the cost of repairing that injury. Should the injury involve the renewal of the mast, either on account of the spring alone, or because the latter, though it could have been repaired by fishing the mast, had the latter been sound, cannot be so repaired on account of the defect, the underwriters will be liable for the cost of the renewal, less the ordinary deduction for improvement. If, however, the spring occur in one part of the mast, and the defect in another, so that the spring might have been repaired by fishing the mast, but in consideration of that injury, coupled with the defect, it is decided to have a new mast, the liability of the underwriters will be confined to the estimated cost of fishing the old mast, less the usual deduction for improve ment, that being the extent of the loss by sea perils.

A similar case occurs where, in the course of repairing injuries caused by sea perils to a ship's bulwarks and stanchions, or upper deck beams, it is necessary to remove several deck-planks; and the latter, owing to the wood being old and frail, cannot be removed without spoiling them, though if there had been no such defect they could have been replaced. In that contingency, if the deck-planks, though defective, would still have been serviceable had it not been for the disturbing effect of the sea perils, the underwriters are liable for the cost of replacing them, less the ordinary deduction for improvement; though they would not be liable if the planks were so defective as to necessitate their renewal, irrespective of the accident.

When injury to iron-work by the perils insured against is

combined with the effects of corrosion, the liability of underwriters for the combination should be tested according to the same method as has been applied to the case of similar injuries to wood-work combined with the effects of decay.

In case of the fracture of a steamer's shaft, or the breaking down of her machinery, in consequence of inherent defect alone, there is no liability on the part of underwriters for the consequent damage; but, if the damage be aggravated owing to the action of sea perils upon the injured parts, the underwriters will be liable for the enhancement. For instance, should a propeller get loose upon the shaft, owing to a defect in the key, the cost of making good that defect would not be recoverable; but should heavy weather ensue, and the violence of the sea acting upon the displaced propeller cause injury to it or to the shaft, the damage so caused would be claimable as particular average. In the event of a shaft being fractured, or a steam-engine breaking down, on account of sea perils combined with inherent defect, the extent of the loss arising from the former cause must be ascertained upon the same principles as have been stated in, relation to other repairs.

§ 227. Limitation of the Liability of Underwriters.—The principal losses which are not covered by the terms of the policy, and for which the underwriters are not liable, are arranged, as below, in a summary form under the four heads specified.

1. Loss by deterioration and ordinary outlay in navigation, such as the splitting or carrying away of sails by the wind; the breaking and straining of the rigging while navigating; the parting of hawsers and ground-tackle, unless subjected to an extra strain owing to some accidental occurrence; the rolling away of small spars, such as studding-sail booms or top-gallant and royal yards, with the exception last mentioned; injury to pumps; the breakage of a steamer's shaft, unless attributable to heavy weather, or some other peril insured against; damage to the hull of a vessel through taking the ground in the ordinary course of navigation; slackness of seams, resulting from wear and tear; the wastage of metal sheathing consequent upon use and exposure; damage by rats or worms; decay of wood-work; corrosion of iron-work; and, in general, the ordi