by rats to a vessel or its cargo is not damage by perils of the sea. But he remarked that in that very case Chief Baron Pollock had said: "If indeed the rats made a hole in the ship, through which the water came and damaged the cargo, that might very likely be a case of sea damage." Thereafter Lord Herschell proceeded to say with regard to the Inchrhona, case, "I entertain no doubt that the loss was one which would in this country be recoverable under a marine policy as due to a peril of the sea. It arose directly from the action of the sea. It was not due to wear and tear, nor to the operation of any cause ordinarily incidental to the voyage, and therefore to be anticipated." Lord Macnaghten added, "It was an accidental and unforeseen incursion of the sea that could not have been guarded against by the exercise of reasonable care."

From the principles enounced in the cases cited above, it is evident that among the perils of the sea are included foundering, stranding, loss by collision with another ship or vessel, or through stress of weather. Phillips (§ 1099) gives a long catalogue of casualties which have been held to be perils of the seas, most of them based upon reported decisions, some, however, referring more exactly to the words of the general clause to be discussed hereafter, on which many important decisions have been given. His definition is: "Perils of the seas comprehend those

of the winds, waves, lightning, rocks, shoals, collision, and, in general, all causes of loss and damage to the property insured arising from the elements, and inevitable accidents,1 though sometimes considered not to include capture and detention." He does not mention such perils as upheaval of reefs by earthquake, or rise of sea-bottom from the same cause resulting in ships being left high and dry on a hillside, as on the Chilian coast.

The mention of perils of the seas is followed in the policy by long enumeration of other perils strung together without very obvious connection, occurring much in the same order as in the Florentine policy of 1523. The only

explanation of this order that offers itself as at all likely, is 1 As to inevitable," see above, p. 96.

that the perils were added one by one simply as they were found in the history of insurance to become necessary for the proper protection of the assured. The policy runs :—

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.

In the discussion of these, this arbitrary arrangement will be discarded, and the perils named will be classed under three heads

I. Perils of nature or of the elements-seas, fire. II. Perils arising from the actions of persons on board the insured vessel-jettison, barratry.

III. Perils arising from the actions of persons not on board the insured vessel-men-of-war, enemies, pirates, rovers, thieves, 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.

I. PERILS OF NATURE OR OF THE ELEMENTS

Fire. The perils of the seas having been already discussed, fire remains to be dealt with.

Phillips (1099), after giving the definition of perils of the seas quoted above, goes on to remark that a policy against these perils covers damage by fire. For this statement he quotes no authority and cites no decision; but he adds in a footnote, "This would be the construction, no doubt, though the peril were not specifically insured against." Be that as it may, it is still somewhat striking that the only elemental peril named in the policy besides those of the seas is fire. To explain this it is necessary to recall the conditions of navigation under which commerce was conducted at the time the policy was devised. Marine ventures were made by sailing ships of what is now regarded as very moderate size. All the extraordinary dangers of winds, waves, rocks, fogs, tempests, calms, being already

included in the class perils of the seas, there remained for the merchants and shipowners of the sixteenth, seventeenth, and eighteenth centuries, no other danger from the forces of nature with which they were acquainted except fire, either in the shape of flame or ignition, or of lightning or other form of electrical incandescence.

But fire once admitted as a peril insured against, received the most extensive application. In his decision in Gordon v. Rimmington, 1807,1 Lord Ellenborough says: "Fire is expressly mentioned in the policy as one of the perils against which the underwriters undertake to indemnify the assured, and if the ship be destroyed by fire it is of no consequence whether this is occasioned by a common accident, or by lightning, or by an act done in duty to the state." The case on which the judgment containing this statement was delivered was one in which an insurance had been effected on the commissions of a captain on a voyage from Bristol to the African coast and thence to the West Indies. The vessel was chased by a French privateer of much greater strength, and when escape was seen to be impossible the captain and crew burnt their ship to prevent her falling into the hands of the enemy. The policy was

held to cover this loss.

Similarly in Busk v. Royal Exchange, 1818,2 an action on a policy in which the loss arose from the negligence of the mate in lighting a fire in the cabin and not seeing it properly extinguished, Mr. Justice Bayley said (as reported by Marshall, 496): "It had been agreed that they (the underwriters) were only liable where the ship had been wilfully set on fire, because barratry was one of the risks expressly mentioned in the policy, and negligence of the master was not; but there was no authority, in our law at least, which said that they were not liable for a loss, the proximate cause of which was one of the enumerated risks, though the remote cause might be traced to the negligence of the master and mariners." The Court held the under

writers liable.

Both Arnould (p. 831) and Phillips (§ 1094) state that

1

I Camp. 123.

2

2 B. & Ald. 73.

the assured is entitled to indemnity in case of a vessel being burnt by the municipal authorities from fear of its being infected and causing a pestilence. This statement, however, is not based on any English or American legislation or decision, but is taken from Émerigon (i. 429), who mentions the case of the Dutch vessel Adam, with rice from Damietta to Marseilles, about the year 1748. The vessel experienced a storm off Majorca, and the captain tried to run into port for safety. But the Spanish authorities learning that the vessel came from the Levant declined to permit their entry, and after sending craft to take the captain, crew, and cargo on to Marseilles, set fire to the ship. The underwriters paid the loss without demur, because, as Émerigon says, "neither captain nor crew were in fault." He proceeds to report another case, that of the Grand Saint Antoine in 1719, in which the captain's fault released the underwriters. After declaring at Leghorn that some of his crew had died of "pestilential fever," he proceeded to Marseilles, did not stop at the quarantine ground, but going to the health office declared on 25th May 1720 that the deaths had been caused by bad provisions. ever, the watchmen and stevedores died; in consequence the ship was removed to the quarantine ground and burnt by ministerial order on 20th September. In December 1723 the Admiralty Court of Marseilles condemned the underwriters to pay the loss, but this sentence was reversed by decree of February 1725. It thus appears that the only decided case reported is against the opinion stated absolutely by Arnould and Phillips. In the present state of sanitary science such a case is not likely to occur again ; but even if it did, it is not certain that an underwriter would be held liable for the loss.

How

It is evident from what precedes that intentional as well as accidental burnings may be covered by the word “fire” in the policy.

Such

But certain non-intentional burnings cannot properly be called accidental. are those occasioned by the damaged state of the cargo. In Boyd v. Dubois, 1811,1

1 3 Camp. 133.

Lord Ellenborough said: "If the hemp was put on board in a state liable to effervesce, and it did effervesce and generate the fire which consumed it, upon the common principle of insurance law the assured cannot recover for a loss which he has himself occasioned " (M'Arthur, p. 116). Somewhat akin to this decision is that of Pirie v. Middle Dock Company, 1881,1 which referred to a cargo of coal in which fire broke out spontaneously; it was held that the owner of cargo cannot take advantage of his own wrongdoing. Spontaneous combustion is the most serious form of vice propre or inherent defect. As M. de Courcy (Commentaire, p. 218) most admirably remarks, "Spontaneous combustion is a form of words employed to indicate a production of internal facts without known external agents. It is never certain that the combustion has been spontaneous." As a matter of fact "spontaneous" combustion is the cause which is assumed to have occasioned a fire when no other real cause

can be proved to have existed. Speaking generally, it would appear that underwriters on goods are not responsible for damage done to these goods by a fire resulting from the condition in which they were shipped. Arnould (p. 831)

gives it as his opinion that the underwriters on a ship would be liable for loss by fire occasioned to the ship by this cause. Apparently it would be fair to assume that the underwriters on other cargo in the ship would likewise be liable for a loss occasioned to these goods by this cause.

There is much similarity between fire and explosion. This point was brought into prominence in the reasons given by Lord Esher (then Lord Justice Brett) for his judgment in the case of the West India and Pacific Telegraph Company v. Home and Colonial Insurance Company, 1880.2 In that case "the steam in the boilers burst the boilers, and the steam escaped, and the steam escaping into the ship destroyed the ship; it blew up the deck of the ship and wrecked the ship so that she was a complete wreck." These are Lord Esher's own words as given in his judgment in the Court of Appeal in Hamilton v. Thames and Mersey

1

4 Asp. Mar. L. C. 388.

2 L. R. 6 Q B.D. 51.