The memoran usually modi fied by an express stipulation to pay average on produce and on separate packages. been entirely lost, there would have been a total loss of that part, which the insurer would have been liable. The import of the general memorandum is in fact usually dum is likewise modified by an express stipulation to pay " average on each species of produce, or package of manufactured goods, or on each ten, fifteen, or twenty hogsheads of sugar," &c. (as the each species of agreement may be) the effect of which is to give the insured a right to claim average separately on each species, if it amounted to three or five per cent., although there may not have been a three or five per cent. loss upon the whole (a). But the effect of this stipulation is not to prevent the assured from estimating the average on the whole cargo, if average being the loss altogether amounts to a three or five per cent. average on the whole, but it is intended to bestow on him the further benefit of enabling him to claim one or several losses of three or five per cent. on one or several packages, which he could not have done without such an express stipulation. But this stipulation does not prevent the calculated on the whole cargo, if it amount to three or five per cent. on the whole. On a policy on some packages of linen the underwriter bound himself to pay average on each pack age separately. Held that this stipulation did not preclude the assured from recover- Thus in the case of Hagedorn v. Whitmore (b), where a policy was effected upon some packages of linen (average being payable separately on each) and a loss having taken place amounting to twenty-two per cent. upon the whole cargo, most of the packages having being injured, but many of the pieces in each particular package remained sound, it was contended, on behalf of the underwriter, that although by the general memorandum he would have been bound to pay an average loss sustained by the linen in a mass, if the average exceeded three per cent., yet that, the special clause being inserted, his claim was limited to a calculation upon each package separately, and that he was only entitled to claim for a loss upon those packages which were actually damaged. But Lord Ellenborough said, "that this clause was introduced for the benefit of the assured, and did not, as had been argued, oust the plaintiff's claim to general average." His Lordship afterwards stated his opinion that, (a) See Stevens on Aver., p. 184. (b) 1 Stark. 157. though one or more entire packages were uninjured, they were still to be included in the average. And in the case of Blackett v. Royal Exchange Assurance Company (a), it has likewise been decided that upon the construction of the memorandum "free from average, under three per cent. unless general," if several average losses less than three per cent. individually take place, the aggregate, however, of which, amount to the three per cent. or more, the underwriter is liable. And Lord Lyndhurst, who delivered the judgment of the Court, said, "that the memorandum was in the nature of an exception, and was to be taken most strongly against the party for whose benefit it was introduced." But in the very recent case of Hills and another v. The London Assurance Company (b), where an insurance was effected upon a cargo of wheat, shipped in bulk, and valued at 1,600%., warranted free from average, except general, or the ship be stranded on the voyage; the ship met with tempestuous weather, and made considerable water; and in pumping it out, wheat to the value of about 751. was pumped out with the water, and lost. It was held that the plaintiffs could not recover as for a total loss of the part so lost; and Lord Abinger said, "that the law had been settled in many cases before, that where the insurance is upon each packet separately, it is to be treated as a total loss upon each package lost; but when it is an insurance upon the bulk, unless the loss exceeds a certain value, there is no average loss, and there cannot in such a case be a total loss of a portion only of the cargo." In the case of Nesbitt v. Lushington (c), which was an action on a policy on wheat and coals, the declaration stated the loss to be by detention. It appeared in evidence that the ship was forced by stress of weather into Ely harbour in Ireland, and there happening to be a great scarcity of corn there at that time, the people came on board the ship (b) 5 M. & W. 569. (a) 2 Cr. & J. 244; 2 Tyr. 266. (c) 4 T. R. 783. On the memo randum "free from average under three per cent.," the underwriter is liable for the amount of the aggregate of several average losses, each less than three per cent., but amounting in the whole together to three per cent. or more. Where on a policy on corn, the memoran dum stated that would not be liable for any the underwriter average, unless general, or the ship be stranded, but there was no averment in in a tumultuous manner, took the government of her from the captain and crew, and weighed her anchor, by which she drove upon a reef of rocks, where she was stranded, and they the declaration would not leave her till they had compelled the captain to sell that the ship was stranded. all the corn (except about ten tons) at a certain rate. The The assured could not ten tons were lost in consequence of the stranding, by which recover. it was damaged, and obliged to be thrown overboard. The ship afterwards arrived, with the rest of the cargo, at the place of destination. A verdict was found as for a total loss. A motion was made for a new trial. Lord Kenyon said—" This being a policy upon corn, the memorandum states that the underwriter will not be liable for any average, unless general, or the ship be stranded. And I am of opinion that this is not a general average, because the whole adventure was never in jeopardy. There is no pretence to say, that the persons who took the corn intended. any injury to the ship, or any other part of the cargo, but the corn, which they wanted in order to prevent their suffering in a time of scarcity. Therefore the plaintiffs could never have called on the rest of the owners to contribute their proportion, as upon a general average. On the meaning of the memorandum I have no doubt. The articles there enumerated are of a perishable nature: as it might be difficult to ascertain whether their being damaged arose from any accident, or from the nature of the articles themselves, this memorandum is inserted in all policies, to prevent disputes; and by it the underwriters expressly provide they will not pay any average unless general, or the ship be stranded. When a ship is stranded, then the underwriters agree to ascribe the loss to the stranding, as being the most probable occasion of the damage, though that fact cannot always be ascertained. Therefore here all the damage done to the cargo thrown overboard may be ascribed to the stranding: but the objection is, that the declaration imputes the loss to another cause." Mr. Justice Buller.-" With respect to the objection, that this does not fall within the reason of the memorandum, there are only two instances, in which the owner may recover an average loss on the articles there enumerated: either where the average is general, or where the loss arises from the stranding of the vessel. Now this cannot be said to be a general average, for the reasons already given. And as to the other instance of stranding, the plaintiffs are entitled to recover for any loss occasioned to the cargo in consequence of the stranding, provided it be a direct and immediate consequence of stranding (a); but they cannot recover for that which was taken by the mob, for that was not the consequence of the stranding, but on the contrary, the stranding was occasioned by the mob coming on board for the corn. The rioters took possession of the ship in order to get at the cargo; but this loss cannot be ascribed to the stranding. Suppose the mob had taken out one hundred quarters of corn before the ship had been stranded, and had used no threat to destroy the whole if it were not delivered to them, it is clear that the underwriters would not be liable. Then the fact of their taking the corn after she was stranded is as much unconnected with that circumstance as if it had been before. But the loss which happened to that part of the cargo which was thrown overboard, being ascribable to the stranding and being a direct and immediate consequence of the peril insured against, might have been recovered, had there been any count in the declaration applicable to a loss by stranding." Still it remained a question, which has been much agitated in Westminster Hall, whether the words "unless stranded" were to operate as a condition, so as to allow the assured to recover for an average loss of the commodity, if that event happened, though it could be shewn demonstrably that no part of the loss had arisen immediately from the act of stranding. Lord Kenyon, in a case before him at Nisi Prius (b), (a) See Burnett v. Kensington, post, that this doctrine is now exploded. (b) Bowring v. Elmslie, sittings after Trin. 1790. Park Ins. 262. If the ship be stranded that destroys the exception and lets in the general words of the policy. Where a ship was stranded, and afterwards upon this subject, had been of opinion, that as the general mode of construing deeds, to which there are exceptions, was to let the exceptions control the instrument, as far as the words of it extend, and no further; and then upon the case being taken out of the letter of the exception, the deed operates in its full force; so the stranding of the ship put fish in the same condition as any other commodity not mentioned in the memorandum, for otherwise there would be very considerable difficulty in ascertaining how much of the loss arose by the perils insured against, and how much by the perishable nature of the commodity, which was the very thing the memorandum intended to prevent. This point, however, was settled in the cause of Burnett v. Kensington (a), which, as Mr. J. Park says, was as much discussed as any case that ever arose at Guildhall, and which, after three trials by jury, and two special arguments upon the case reserved at the last of those trials, was at last unanimously decided by the whole Court, in favour of the assured. It was an insurance on fruit, the policy containing the usual memorandum, and the declaration stated the loss to be, that the vessel by the perils of the sea was stranded, bulged, and destroyed, whereby the goods were lost. The case stated that the vessel, in the course of her voyage, struck upon a sunken rock, on which she did not remain, but in consequence of it, several of her planks were started, and the water immediately flowed into the hold and over the cargo; that on the same day she was stranded at Scilly, by direction of the pilot, for the preservation of ship and cargo. While she continued on the beach, the water again flowed in over the cargo, which was very much damaged, and a small part was left at Scilly as wholly unfit for use. The ship and the under- received no damage in consequence of the stranding. The damage she received was entirely from the rock on which she struck: part of the damage the cargo received was occasioned by the water flowing into the ship, previous to her being laid arrived at her port of destination with her cargo greatly damaged, but not in consequence of the stranding. This, neverthe less, lets in the general words of the policy, and destroys the exception, writer is liable for an average loss. (a) 7 T. R. 210. |