edge, or should have inferred from facts in their possession, that it was the intention of the insured to engage in such a trade.1 And even if there be a warranty against prohibited trade, if goods specifically named are known to be prohibited at the port to which the ship is expressly destined, it has been held that the insurers are liable for a loss of the property by a seizure for a disregard of the prohibition. It is, however, an unquestionable rule, that if the policy contains an exception of all risks from contraband, war, or illicit or prohibited trade, and a part of the property insured is exposed to that danger, and a loss accrues therefrom to that part or to the residue, the underwriters are not held, unless there is something in the policy which must be regarded as controlling or limiting that exception. If such trade is intended, and no notice, and nothing equivalent to notice, is given to the insurers, they are not responsible for a loss caused by such trade. But if, without 1 See ante, p. 34, n. 3. Seton v. Delaware Ins. Co., 2 Wash. C. C. 175. Insurance was effected on cargo to ports in Cuba and back, declared in a written clause to be on goods and specie, both or either, valued at a certain sum, with the usual printed clause of warranty against any charge or loss on account of any illicit or prohibited trade. Mr. Justice Washington admitted that the printed and written clauses were to be construed so as to give effect to both, but held that as speIcie would have been included in the general term "goods," and as specie was known to be prohibited, the clause meant "we do not know what the goods are, we therefore do not insure them against illicit or prohibited trade, but we do insure the specie." In a nisi prius case in New York, the decision was put on the ground that the printed clause was controlled by the written. Van Ness, J., said: "There can be no question but that the insurers assume the contraband risk, when contraband articles are set forth and expressly named in the policy. Such specifica tion must be considered as notice to Thus in Andrews v. Essex F. & M. Ins. Co., 3 Mason, 6, 17, Mr. Justice Story said: "It is perfectly settled that the underwriters, by the general terms of the policy, are not liable for any loss arising from foreign illicit trade, unless the policy be underwritten with the full knowledge on their part that such was the object of the voyage. This is the any such intention, there was an actual violation of some foreign law without the knowledge or the default of the owner or his agents, the insurers may be responsible. This question is, however one of some difficulty. Thus, if war begins after the policy is made, the insurers are held for any loss caused by violation of any ordinances or rules springing from a state of war, unless such notice reaches the insured or his agent as makes the violation of these rules or ordinances his default. If there is a loss by capture for a pretended violation of a blockade which did not actually take general doctrine of foreign maritime writers, and has been recognized in the fullest manner by the common-law tribunals." See 2 Valin, lib. 3, tit. 6, art. 49; Richardson v. Maine Ins. Co., 6 Mass. 102; Parker v. Jones, 13 Mass. 173. See also ante, p. 364, n. 3. 1 Wood v. New England Mar. Ins. Co., 14 Mass. 31. In this case the policy contained the following memorandum: "It is understood the company are not liable for any loss or expense arising from the violation of the existing laws or regulations of any of the belligerent powers restricting neutral commerce." The vessel was captured by a French vessel under the Milan decree, which had not been promulgated at the time the policy was made, on the pretext that the ship had come from a British port, and had been spoken with by British cruisers. It would appear, by the language of the court on page thirty-six, that the policy contained the usual clause insuring the vessel against arrest and detention, and the only question, therefore, was whether the Milan decree was an existing regulation within the memorandum; and the court held that it was not. In Archibald v. Mercantile Ins. Co., 3 Pick. 70, and in Parker v. Jones, 13 Mass. 173, it was held that if a voyage is prohibited, and both parties are igno rant of the fact, the insurers are not liable. And in a case where a vessel sailed for a port which was at the time blockaded, both parties being ignorant of the fact, and the master, on learning it, discontinued his voyage and sailed for home, but was captured on the way, it was held that the underwriters were only liable for losses by perils insured against up to the time of the discontinuance of the voyage. Richardson v. Maine Ins. Co., 6 Mass. 102. In Andrews v. Essex F. & M. Ins. Co., 3 Mason, 6, 18, the port of destination was restricted from foreign trade, but it was believed by both parties that the trade would be lawful before the vessel arrived. In point of fact, the port was not open and the vessel was seized. It was argued that the underwriters, having insured the voyage to the port of destination, must be presumed to warrant an entry into the port for the purpose of inquiry. But Mr. Justice Story said: "The true principle seems to me to be this, that the policy guarantees an indemnity in going to the port against all losses by the perils insured against; and unless the peril of illicit entry at the port be contemplated as one of the risks insured against, the underwriters are not held." See also, in respect to the question whether a denial of entry at the port of destination is a risk within the common policy, post, § 7. place, and the capture is therefore illegal, it would seem that the insurers should not be discharged.1 SECTION III. Of the Meaning and Extent of Perils of the Sea. A. Of Perils generally. THOSE usually enumerated in American policies are perils of the sea, fire, barratry, theft, piracy, capture, arrests, and detentions.2 The general clause "all other perils" is usually restricted in its extent and operation by the enumerations of the perils in the policy, and embraces only other perils of the like kind. The phrase "perils of the seas" covers all losses or damage which arise from the extraordinary action of the wind and sea, and from 1 Sawyer v. Maine F. & M. Ins. Co., 12 Mass. 291. The common clause in the English policies enumerating the perils is as follows: "Touching the adventures and perils which we, the assurers, are content to bear, and do take upon us in this voyage, they are of the seas, menof-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, quality, or condition soever, barratry of the masters and mariners, and of all other perils, losses, or misfortunes, that have or shall come to the hurt, det riment, or damage of the said goods and merchandises and ship," etc. Vaucher's Guide, Mar. Ins. 88; 2 Arnould, Ins. 792. This clause has been modified in form in most of the American policies, and some changes have been made in the substance. The perils usually enumerated in the Boston policies are, "of the seas, fire, enemies, pirates, assailing thieves, restraints and detainments of all kings, princes, or people of what nation or quality soever, barratry of the master, unless the insured be owner of the vessel, and of mariners, and all other losses and misfortunes which have or shall come to the damage of the said —, or any part thereof, to which insurers are liable by the rules and customs of insurance in Boston." And they are substantially the same in our other commercial cities. • What are ordinary and what extraordinary perils, is a question of much difficulty. In Magnus v. Buttemer, 11 C. B. 876, 9 Eng. L. & Eq. 461, a vessel, in the ordinary course of her voyage, moored in a tide harbor, and took ground when the tide fell. In consequence of this she was hogged and strained all over. It was held that the underwriters were not liable. In Potter v. Suffolk Ins. Co., 2 Sumner, 197, under very similar circumstances, Mr. Justice Story held, that, unless there was inherent weakness in the vessel, such damage could only be occasioned by an unusual and extraordinary accident in grounding upon the ebbing of the tide, which would be a peril of the sea. And in Bullard v. Roger Williams Ins. Co., inevitable accidents directly connected with navigation, excepting those provided for in other parts of the policy, as capture and the like. But the destruction of a ship by worms is not a "peril of the sea," because it is not an extraordinary circumstance. In certain waters, and at certain seasons, it is a natural result of causes always in operation, which are to be expected,2 and it may be likened to a loss by wear and tear. And so, if loss or damage be caused by rats or other vermin, it would seem that the insurer would not be liable unless the owner or the master had done all that could be done by any reasonable exertions or means to extirpate them, and without success. 1 Curtis, C. C. 148, Mr. Justice Curtis held, that, although the law required vessels to be sufficiently strong to resist the ordinary action of the sea in the voyages for which they might be insured, yet the ordinary action of the wind and sea did not mean the winds and sea to be ordinarily met in the voyage insured. He accordingly held that heavy cross-seas were not the ordinary action of the sea within the meaning of this rule, however common they might be in the voyage insured. And in Washington Mut. Ins. Co. v. Reed, 20 Ohio, 199, underwriters on whiskey on board a flat-boat were held liable for a loss occasioned by the swell of a steamboat, although the steamboat and the swell were of ordinary size and of constant occurrence. 1 Schieffelin v. New York Ins. Co., 9 Johns. 21. * Rohl v. Parr, 1 Esp. 445; Hazard v. New England Mar. Ins. Co., 1 Sumner, 218, 8 Pet. 557. was called, and the vessel condemned. In Dale v. Hall, 1 Wilson, 281, a common carrier was held liable for damage done to goods by rats gnawing a hole in the vessel. So in another case where the rats gnawed the goods. Aymar v. Astor, 6 Cow. 266. In a similar case in England, Laveroni v. Drury, 8 Exch. 166, 16 Eng. L. & Eq. 510, where a cargo of cheese was damaged by rats, the defence was set up that the captain 'Martin v. Salem Mar. Ins. Co., 2 had two cats on board. This would Mass. 420. have been sufficient to exonerate the carrier according to the maritime law. Consolato del Mare, c. 65, 66; Casaregis, disc. 23, n. 73; Roccus, n. 58; Emerigon, c. 12, s. 4, § 7 (Meredith's ed.), 302. But the court held that the carrier was liable, on the ground that damage done If goods are damaged by actual contact with sea-water, the underwriters are certainly liable,1 and it has been held that if part of the cargo is damaged by sea-water, and the vapor and gases arising from it injure another portion of the cargo which is insured, the underwriters on this latter portion are liable, although it was not immediately in contact with the sea-water.2 2 Damage caused by a vessel's grounding or stranding is a loss by a peril of the seas within the policy, provided it does not happen to goods by rats was not a peril of the 603; Cogswell v. Ocean Ins. Co., 18 La. seas, it being" a kind of destruction not 84. peculiar to the sea or navigation, or arising directly from it, but one to which such a commodity as cheese is equally liable in a warehouse on land as in a ship at sea." The court said: "We further are very strongly inclined to believe, that, in the present mode of stowing cargoes, cats would offer a very slight protection, if any, against rats. It is difficult to understand how, in a full ship, a cat could get at a rat in the hold at all, or at least with the slightest chance of catching it." But the question still remains, whether the underwriter would not be liable in case the rats should eat a hole in the ship, and water should enter and damage the cargo. In Laveroni v. Drury, supra, Pollock, C. B., said such a case might very likely be one of sea damage. And Alderson, B., added: “Our judgment does not touch that question. A rat making a hole in a ship may be the same thing as if a sailor made one." On the authority of the recent cases in this country, we should consider the insurers liable in such a case, even if the rats remained on board through the negligence of the master, on the ground that the damage by water was the proximate cause of the loss, but should not hold them liable if the goods were gnawed by the rats, that not being a peril peculiar to the sea. Montoya v. London Ass. Co., 6 Exch. 451, 4 Eng. L. & Eq. 500. See also Rankin v. Am. Ins. Co. of N. Y., 1 Hall, 619. But in Baker v. Manuf. Ins. Co., Sup. Jud. Ct., Mass., March T. 1851, 14 Law Reporter, 203, it was held that the underwriters were only liable for the damage done to those goods with which the sea-water came into actual contact, although the plaintiff offered to prove that the injury was not caused by the usual dampness in a vessel's hold, but by the steam and moisture arising from goods damaged by an unusual quantity of water entering the hold in consequence of a peril of the seas. We have examined the policy in this case, and find that it did not contain the clause, now common in Boston policies, which exempts the underwriters from loss of this kind, and which is as follows: "It is further agreed that the insurers shall not be liable for damage or injury to goods by dampness, rust, change of flavor, or by being spotted, discolored, or mouldy, unless the same shall be caused by actual contact of sea-water with the articles so damaged." In a case where the policy contained this clause, it was held that the burden was on the assured to show that the damage was caused by actual contact with sea-water. Leftwich v. St. Louis Perpet. Ins. Co., 5 1 Baker v. Manuf. Ins. Co., 12 Gray, La. Ann. 706. |