for which underwriters should be liable under the common form of policy, the conclusion was reached that everything in the way of damage resulting from the essential character, natural quality, or inherent defect of the subject insured should be excluded from the operation of the policy. Now the most inevitable form of inherent defect is the one that is least perceptible in its progress, namely, wear and tear. It is clear that in every structure with which we are acquainted, detriment must be going on steadily without ceasing; these structures, though intended to last for years, are yet admittedly of only limited durability. This is particularly true of ships, especially of wooden ships; and if true of the hull and spars, it is evidently much more so of hawsers, cordage, and sails.

It is extremely difficult to determine where " wear and tear" ends. The perusal of hundreds of statements of particular average on ships will probably result in making the matter not clearer but rather more difficult. It is probable that in reality a very great proportion of the cases of damage suffered at sea arise neither from sea perils nor other extraordinary casualties alone, nor from wear and tear alone, but from a combination of these; or from a state of insufficiency resulting not so much from actual wear and tear as from the mere effect of time on materials which were originally fully sufficient for their intended purposes. The institution of periodical surveys by the classification registries may be quoted in support of this view; these surveys are held irrespective of the history of the vessel as regards accidents, and are held at times fixed when the original class certificate is given. an example the case of chain cables, windlasses, and hawsers may be taken. In olden days every damage or loss of these was put down to simple wear and tear, unless some strain out of the ordinary course had befallen these appliances in consequence of some peril of navigation. When a chain cable is run out with an anchor it is fulfilling the very purpose for which it was furnished. If it does not hold the ship in ordinary weather it has either been insufficient from the first, or having once been sufficient,

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has through actual wear and tear, or the mere lapse of time, become insufficient. But the real difficulty is to say how much such a cable should be able to stand in the way of bad weather or unusual strain; anything below that standard should be called ordinary, anything above it extraordinary. In the case of cables and anchors a standard approximately of this character has been imposed on English shipowners by the Board of Trade. All vessels have to carry anchors and chain cables tested up to a strain ranging with the size of the ship. It is natural that the shipowner should consider that his fulfilment of the requirements of the Board of Trade should pass his cable as manifestly sufficient for all the strain to which it is exposed in ordinary weather. The next conclusion is that whatever weather is followed by the breaking of this cable must be extraordinary, as all usual wear and tear is covered by the Board of Trade's certificate. This is one of the results of positive enactments; on the whole, they have raised the percentage of safety, but the literal fulfilment of them does not prevent the occasional occurrence of disaster which might perhaps have been avoided had it not been for their existence. With respect to the settlements made by underwriters in cases of this character there can be no doubt that, in the words of Lowndes (Law M. I. p. 183), "this leniency may perhaps . . . be carried too far.”

The same difficulty presents itself in connection with a breakdown of machinery in steamers, especially of screw shafts. A few years ago there was an epidemic of broken shafts. It seemed as if the first flight of compoundengined cargo steamers had about worn out their shafts, or rather had reduced them to such a state of tenuity that weather far short of serious storm found the weakest spot in the shaft and snapped it. No doubt some of the breaks were due to the propellers hitting floating wrecks, while others were immediately attributed to pitching of the ship and consequent racing of the engines. But the question arises, What amount of pitching and racing is to be considered ordinary pitching and racing which a seaworthy shaft ought to be able to withstand? It has often struck

those whose duty it is to examine claims for such damage, that the final break often comes on most moderate provocation. It looks in many cases as if some congenital flaw, or some slight rent originating in previous passages, has resulted either in a crack or in such a molecular condition of the metal that what seems only a slight alteration of the stresses applied to the metal is sufficient to complete the break, which is in reality the result of an accumulation of trifling shocks. The absence of what appeared sufficient reason for such breaks of screw shafts, led to the suggestion that the constant revolution of the shafts produces crystallisation in the metal, rendering it so brittle that it may snap without any additional strain from without. If this were correct, the cases it would explain would unmistakably be cases of damage due to inherent defect which, equally with wear and tear, is excluded from the liabilities of the underwriter on the ordinary policy. (Cf. Lowndes, Law M. I. p. 185, on decay or dry rot in wooden masts, and A. E. Seaton on Mysterious Fractures in Steel at Institute of Naval Architects, March 1896, with Prof. Arnold's remarks in discussion; also Mr. Justice Mathew in The Ashley, (N. of Ireland S.S. Co. v. London Assurance), Q.B.D. 8, 9, 11th May 1896).

Wooden Ships, Caulking and Metalling Clauses. In repairs of wooden ships there was formerly much difficulty in settling whether damage was due to defective caulking or rot; and in consequence of this a clause known as the metalling clause was drawn to limit the responsibilities of underwriters. The clause ran :—

Warranted free of particular average below the load water line, unless caused by grounding or by contact with some substance other than water.

This was an attempt to meet a certain class of wear and tear claims, but it is questionable if the clause could in fairness be inserted in a policy on a vessel newly caulked and metalled. Since the introduction of iron and steel for the construction of ships this clause has naturally fallen into disuse.

In addition to the limitation put to underwriters' liability in cases of wear and tear, there are others which rest upon

custom, and are universally respected, although there is no definite mention of them in the policy or in any other expression of the contract of insurance, e.g.

(1) Sails Lost.-Sails split by the wind, or blown away while set, are not charged to underwriters unless the loss be occasioned by the ship's grounding or coming into collision, or in consequence of damage to the spars to which the sails are bent.

(2) Rigging Chafed.-Rigging injured by straining or chafing is not charged to underwriters, unless such injury be caused by blows of the sea, grounding, or contact, or by. displacement through sea peril of the spars, channels, bulwarks, or rails.

These customs analysed will be found to rest on the recognition of two principles :

(a) The underwriter is not to pay for wear and tear.

(b) The underwriter is not to pay for loss occurring in the proper and ordinary use of anything in the work for which it was intended.

In the case of the first custom it is presumed that any weather damaging the sails without the spars is ordinary weather, and the damage arising from it does not proceed from any extraordinary occurrence. In the second the rigging is presumed to be fulfilling its proper function in bearing the straining and chafing inseparable from any sea voyage, and any injury resulting from that is such as must occur, while "the purpose of the policy is to secure an indemnity against accidents which may happen, not against events which must happen (Lord Herschell in the Xantho, 1887).1 Somewhat similar is

(3) Gear, etc., on Deck.-Damage or loss of water casks or tanks carried on a ship's deck is not paid for by underwriters, nor is that of warps or other articles when improperly carried on deck.

This custom is simply an extension to the insurance of ship of the principle recognised in dealing with cargo claims, that to justify a claim on the policy the property

1 12 App. Cas. 503.

damaged must be in the position on the ship intended for it. When a vessel is in the act of sailing, or of arriving, or preparing for either, it is quite proper to have warps, etc., on deck ready for use: at other times only extraordinary circumstances can justify their being there.

The three customs dealt with above form part of the old "customs of Lloyd's." 1

Among the many points of detail that have to be considered in the settlement of almost every case of particular average on ship, the following are so important as to require special attention :

(1) Collision Liabilities.-The expenses borne by underwriters as particular average on ship being the proper proportion of the cost of the repairs of material damage, and of such outlays as may be incurred to effect these or to restore the ship to her owner's possession, no claim can be made against underwriters on the ship for damage done by her to persons or property. In the case of De Vaux v. Salvador, 1836,2 the owner of a vessel brought an action against his underwriter to recover the amount he had to pay to another vessel in consequence of a collision in the Hooghly. In the Court of King's Bench it was held that he could not recover, for, as Lord Denman expressed it, the "obligation to pay was neither a necessary nor a proximate effect of perils of the sea, but growing out of an arbitrary provision of the law of nations." 3 The result of this

"

1 Preamble to the "custom of Lloyd's" as issued by Average Adjusters' Association : Nothing can be called a 'custom of Lloyd's which is determined by a decision of the superior courts; for whatever is thus sanctioned rests on a ground surer than custom. A 'custom of Lloyd's,' then, must relate to a point on which the law is doubtful, or not yet defined, but as to which for practical convenience it is necessary that there should be some uniform rule. By the term is here understood the customs of English adjusting, whether as affecting general or particular average."

2 4 Ad. and Ell. 124.

3 In the United States Mr. Justice Story gave a decision to the very opposite effect in Peters v. Warren Insurance Company, but in a later case Mr. Justice Curtis, in the Supreme Court of the United States, took Lord Denman's view of the matter, and Phillips (§§ 1137, 1437) states his opinion that that view seems to be "the better doctrine.'