nary deterioration of a vessel's hull and materials; ordinary leakage and breakage of cargo; and all ordinary charges incurred during the prosecution of the adventure, including wages and victualing of the crew, though enhanced in amount owing to the prolongation of the voyage through sea perils. 2. Loss by the inherent defect of the subject insured, as where fish or meat becomes putrid, rice or flour heated, fruit rotten, wine sour, or hides tainted, not by contact with sea water, but by natural decomposition, even though the latter arise. from the prolongation of the voyage by sea perils;1 disease and natural death of animals; original defects in the hulls or materials of vessels; flaws in the machinery of steamers, etc. 3. Loss remotely caused by the perils insured against. This limitation includes loss of interest on capital embarked at sea, or loss of market on cargo, owing to the protraction of the voyage by bad weather; loss arising from the compulsory abandonment of the voyage consequent upon blockade, hostile occupation, or other deterrent cause; the liability of shipowners for loss or injury caused to persons or property through the default of their servants; the liability of ship-owners for the charges incurred in the removal of wreck, even though the underwriters have paid a total loss and claimed the salvage; loss by the forced sale of goods at a port of refuge to provide funds for the repair of the ship, or to defray other expenses necessary for the prosecution of the voyage; the liability of the cargo-owner to make up the deficit in the payment of a bottomry bond, on ship and cargo, arising from the ship and freight being of insufficient value; loss by the forced sale of property under admiralty decree to realize the amount of a claim thereon; loss by a prejudice, or suspicion of damage; the forfeiture of freight, arising from the exercise of a power of mulct or canceling option by the charterer, etc. 4 2 4. Loss directly attributable to the misconduct of the assured or his agent. The following are instances of this limita 5 tion: Loss by unseaworthiness; loss in the shipping or landing of cargo, directly attributable to the negligence of the shipowner's servants, or to defect in the ship's tackle; damage by bad stowage, rats or other vermin; loss by American capture or hostile arrest for illegality; loss resulting from the act of a foreign state, of which the assured is a subject, when committed with a hostile intention against this country (the assured being, in such a case, identified in the eye of the law with his government in the proceeding); the loss of articles placed in improper or insecure situations, such as water-casks on deck, and hawsers or other ropes lying on deck, unless the vessel is just entering or leaving port. Under the same head may be placed the custom by which an underwriter is exonerated from liability for the loss of cargo laden on deck, unless its carriage there is sanctioned by special agreement in the policy, or by established custom of the trade. $228. The Sue and Labor Clause.-This clause is to be treated as an engagement distinct from the main body of the policy,1 and therefore not subject to the restrictions contained in the memorandum. The liability under it is not a liability for particular average. It is distinct from the rest of the policy in this further sense, that, although the underwriter's liability for a loss of the thing insured resulting from a single casualty is restricted to the amount of his subscription, he may be liable beyond that amount for such a loss when coupled with a claim under the sue and labor clause, as when expense is incurred in an unsuccessful attempt to save a ship which nevertheless is totally lost.3 Two conditions are requisite to constitute a claim under the sue and labor clause: the apprehended mischief must be something for which the underwriters would have been liable, and the measure for safety which gives rise to the expense claimed must be the act of the assured himself or of his agent or servant. If, for example, goods are insured "free of capture," it is clear that an expense incurred to prevent a capture could not 1 Lohre v. Aitchison, 2 Q. B. D. 509. Alexandre v. Sun Mutual Ins. Co., 51 N. Y. 253. 2 Kidston v. Empire Marine Ins. Co., Q. B. D. 558. L. R., 1 C. P. 535. Co. v. Phoenix Lohre v. Aitchison, 3 Providence & S. SS. Ins. Co., 89 N. Y. 562. be claimed under this clause; nor, if "against total loss only," an expense incurred merely to diminish damage or avert a loss other than total.1 Where salvors pick up a ship derelict at sea, or as volunteers, and bring the property to port in safety, without being in any sense hired by an agent of the assured, the payment for salvage is not a claim under the sue and labor clause. The cost of repairing a damaged ship is not a claim under the sue and labor clause, while the cost of earning freight by a justifiable transshipment is; because in the latter case there is a worse evil averted, while in the former case there is not. § 229. Exemption under Five Per Cent.-No partial loss or particular average shall in any case be paid unless amounting to five per cent. The purpose of this restriction is to relieve the insurers from such small injuries as may very probably be caused by the natural deterioration of perishable articles, and to exempt them from trifling losses often arising more from wear and tear than from perils insured against, and almost certain to occur in any event. 2 By the English view, successive losses may be added together to make up the required percentage; but the Massachusetts court was of the contrary opinion and held otherwise in respect to successive losses happening to the ship. For a further consideration of percentage clauses see § 232. § 230. Other Assurance.-If the assured shall have made other assurance prior in date to this policy, this company shall be answerable only for so much as the amount of such prior assurance may be deficient towards fully covering the premises hereby assured, and this company shall return the premium upon so much of the sum by them assured as they shall be by such prior assurance exonerated from; and in case of any assurance upon said premises subsequent in date to this policy, this company shall nevertheless be answerable for the full extent of the 1 Kidston v. Empire Ins. Co., L. R., 1 C. P. 543. 3 " Brooks v. Oriental Ins. Co., 7 Pick. 259. Paddock v. Commercial Ins. Blackett v. Royal Exchange Ass. Co., 104 Mass. 521. Co., 2 Cr. & J. 244. sum by them subscribed without right to claim contribution from such subsequent assurers, and shall accordingly be entitled to retain the premium by them received in the same manner as if no such subsequent assurance had been made. This is the American rule in marine insurance, and it differs from the rule in fire insurance, and also differs from the English marine rule; under which all policies share proportionately in the interest irrespective of the dates when they were subscribed, unless there is some stipulation to the contrary.1 This difference in the laws of different countries is inconvenient and leads to confusion when part of an interest happens to be insured in one country and part in another. It is a general principle of law that fractions of a day are not regarded, but if two or more policies are made on the same day, insuring the same property against the same risks, and the question of priority is material, this priority will be determined. by ascertaining at what time on that day the first was made.2 Priority is determined according to the time of effecting the insurance rather than the inception of the risk, and for this purpose the written date of the policy is not conclusive. This clause of the policy is only applicable to other or double insurance, which has been already explained. It is sometimes expressly stipulated that other insurance of the same date as the policy in question shall be deemed simultaneous therewith. If the property is fully covered by the prior insurance, the subsequent insurance does not attach; but it has been held that if the prior for any reason fails during the term of the subsequent insurance, the latter may then attach, but not if it is because the first company becomes insolvent.4 If all the policies, or several of them, of different dates do once attach, and the property is diminished below their aggregate amount during their life, the question arises whether the insurance shall abate pro rata on all the policies, or first on the latest policies. On principle, the former rule would seem to be 1 American Ins. Co. v. Griswold, 14 Wend. 399. Lee v. Mass. Ins. Co., 6 Mass. 208, 2 Potter v. Marine Ins. Co., 2 Mason Pick 19. Ryder v. Phoenix Ins. Co., 475. 98 Mass. 185. the more satisfactory, though there is a decision to the contrary.1 The effect of violating a provision against other insurance has been considered in connection with the clauses of the fire policy. § 231. Warranted Free of Capture.-The meaning of the term "warranted free," when employed to introduce an exception to the underwriters' liability, is to guarantee that the interest insured shall be free from any of the excepted perils as a cause of loss for which the underwriter is responsible. This kind of warranty means that although the general terms of the policy would have covered the peril, yet considering the special hazard incident to the particular subject, the underwriters, unless they are paid the premium for consenting to take it, do not choose to be liable for the risk. The words "capture" and "seizure" are not to be understood as having sole reference to the acts of belligerents. It is true that the proper meaning of the word "capture" is, as already stated, a hostile taking with intent to keep; but this signification is extended by the addition of the word "seizure," the ordinary and natural meaning of which is a forcible taking possession, however effected.2 Thus a ship had got ashore on the west coast of Africa, where she was boarded by natives, who, after plundering the vessel, left her in such a condition that she was abandoned as not worth repairing. In an action for the loss thus caused it was found by the jury that the natives took possession of the ship to plunder the cargo, and not for the purpose of keeping her, but it was held by the court that this seizure, though only temporary, was a seizure within the meaning of the words in the guaranty, and that the underwriters were consequently exonerated.3 The words "capture" and "seizure" occurring in juxtaposition will therefore be understood to include every forcible proceeding, arising out of the perils insured, whereby the assured 1 American Ins. Co. v. Griswold, 14 Wend. 399. 2 Johnston v. Hogg, 5 Asp. Mar. L. C. 52. * Johnston v. Hogg, 5 Asp. Mar. L. C. 51. |