which is prohibited by the laws of the country where the insurance is made, or against perils or risks which positive law or the certain policy of the law excludes from the benefit of indemnity by insurance. A. Of the Articles enumerated in the Memorandum. THE policies in general use in this country except from all loss that is not total, or a subject for contribution, certain articles, and from all loss by damage that is less than certain proportions other enumerated articles of cargo (all of these articles being especially liable to damage), and sometimes the ship and freight. These exceptions were originally introduced in English. policies in a note or memorandum; and still are so, in those policies generally; but in this country they are usually inserted in the body of the policy, although we still use the phrases," memorandum risks," "memorandum articles," and "memorandum rates." The terms used to express this limitation of liability on the part of the insurers are various. Sometimes the words "against total loss only," "not liable for partial loss," "partial loss excepted," are used, but those most frequently employed are "free from particular average," and " free from average unless general.” Sometimes, however, the phrase is "free from average," and then the insured cannot recover, unless there is a total loss, the words being held to exclude a general-average loss, as well as a partial loss.1 Many of the articles enumerated in the memorandum are called by ambiguous names. Thus, corn means one thing in 1 Coster v. Phoenix Ins. Co., 2 Wash. C. C. 51; Bargett v. Orient Mut. Ins. Co., 3 Bosw, 385. 2 In England, it has been held that malt, which is corn in a manufactured state, is included in the term "corn," in the memorandum. Moody v. Surridge, 2 Esp. 633. So are peas. Mason v. Skurray, Marsh. Ins. 226, Park, Ins. 160. "2 Rice, however, has been held not to come within the meaning of this term. Scott v. Bourdillion, 5 B. & P. 213. The above case of Mason v. Skurray is cited in Hughes on Ins. 142, 2 Arnould, Ins. 853, 2 Phillips, Ins. § 1764, and in Maude & Pollock on Shipping, 235, as deciding that peas and beans are included within the term "corn." Mr. England, and another in this country; and it is not certain how much this word embraces, there or here. So "furs," "skins,” and "hides" are discriminated by a line that is certainly obscure, if not arbitrary. And "salt," 2 "roots," and "fruit "4 have given rise to similar questions. So "ice" has been held to be perishable in its nature. We state in our notes all the decisions Marshall, on p. 223, note, makes mention of this case as follows: "The term "corn," comprehends every sort of grain, and also peas and beans. Vide Mason v. Skurray, infra." On page 226, it is said that the insurance was on a cargo of peas. Mr. Park, on pages 149 and 160, cites the case in the same way as Mr. Marshall, on one page, as an authority that the word "corn" includes peas and beans, and, on the other, that the insurance was on peas. This case was decided in 1779, and Mr. Weskett, who wrote in 1783, says: "An action was brought against the defendant, to recover a loss on peas damaged very much by sea-water; and determined at Guildhall, Mich. 1799, that peas are to be considered as corn, or grain." Weskett on Ins. 389. Millar, also, who wrote in 1787, mentions peas only. Millar, Ins. 358. The question is, however, one of not much importance, except in determining the precise point decided by the case alluded to; for peas and beans would doubtless be governed by the same rule, and Mr. Weskett, on page 146, mentions the following articles as being enumerated in several English statutes relating to corn, namely: "wheat, rye, barley, oats, peas, beans, malt, pearl barley, or other corn, ground or unground, bread, biscuit, meal, and grain." In this country, the word " corn " is generally used in a more limited sense, and its meaning would depend very much upon usage. 1 In Bakewell v. United Ins. Co., 2 Johns. Ca. 246, the word "skins" was held to include deer-skins. In Astor v. Union Ins. Co., 7-Cow. 202, the policy contained the clause, "free from average on skins, hides, and other articles, perishable in their nature.” At the time the insurance was effected, the invoice of the goods was presented, headed "invoice of furs," and describing the articles as skins of the bear, raccoon, opossum, deer, fine-fisher, cross-fox, martin, white raccoon, wild-cat, wolf, wolverine, panther, and cub. There was much evidence gone into, to prove that the term "skins" was applied when the skin was the chief value, and that "furs" was used when the fur gave the article its value, and that furs were not perishable articles. A verdict being given for the plaintiff, the court refused to set it aside. 2 Saltpetre has been held not to be included in the term "salt." Journu v. Bourdien, Marsh. Ins. 224, note, Park, Ins. 149. Coit v. Commercial Ins. Co., 7 Johns. 385, where, a usage being shown that sarsaparilla is not considered a perishable article, it was held not to come within the term "roots." This word was considered by the experts to mean beets, onions, etc. In De Pau v. Jones, 1 Brev. 437, dried prunes were held to be "fruit." The voyage was from Bordeaux to Charleston. Oranges also come within this term. Humphreys v. Union Ins. Co., 3 Mason, 429. Tudor v. New England Ins. Co., 3 Cush. 554. which bear upon this subject. If one species of an article is mentioned, this may exclude another. In regard to what articles are considered as perishable in their own nature, it would depend very much on the usage of the trade.2 B. Of the Clause respecting Stranding. As the memorandum articles are all of them of a perishable nature, and especially liable to a partial deterioration, insurers desired, many years since, to protect themselves from liability for injury to them, unless it was certain that this was not caused by inherent defect or decay. For this purpose, it was provided that the memorandum articles should be "free from average, unless general, or the ship be stranded." 3 The original intention of this provision cannot be doubted. It was, that the insurers should not be held for any partial loss on these perishable articles, unless this was caused by a peril of such a nature as to exclude all probability that the loss was due to the nature of the goods. Such a loss it was intended to designate by the word "stranding"; and we may suppose the word to have been equivalent, in the minds of those who first used it, to "wreck." It seems certain that the insurers intended to say, that they should not be liable for a partial loss on these goods, unless the 1 Baker v. Ludlow, 2 Johns. Ca. 289, where the mention of "dry fish was held to exclude "pickled fish." • In Nelson v. La. Ins. Co., 17 Mart. La. 289, parol evidence was admitted to show whether flour was an article perishable in its nature. In Robinson v. Commonwealth Ins. Co., 3 Sumner, 220, and Williams v. Cole, 16 Maine, 207, potatoes were held to be perishable articles. In Baker v. Ludlow, 2 Johns. Ca. 289, the court said: "The subsequent words, all other articles perishable,' etc., are not applicable to the articles previously enumerated, nor can they repel the implication arising from the enumeration of them." The memorandum clause was inserted in English policies in 1749, but the clause relative to stranding was struck out a few years afterwards, in the policies of the London Assurance and the Royal Exchange Assurance Companies. See Stevens & Benecké on Average (Phillips's ed.), 395. The London Assurance Company have since reinserted it, and the Royal Exchange Assurance Company have modified the clause, so that it reads, "free from all average, etc., unless general, or otherwise specially agreed." 2 Arnould, Ins. 852. ship was stranded or wrecked, and the goods thereby injured. The courts did not, however, incline to this view, but adopted the more literal construction and interpretation of the phrase, and a meaning was given it which was far from that originally intended. Thus, it seems now to be settled, that the phrase is to be read as if it ran thus: "goods to be free, etc., unless the ship be stranded." And then this stranding is to be regarded as a condition, and, if it takes place, the whole effect of the provision is exhausted, and the insurers are liable, if there once be a stranding, for any partial loss, in the same manner as if this provision had no existence. The reason given for this is, that, in case of stranding and partial loss, it would be impossible, or very difficult at least, to say how much of the injury to the goods arose from their own perishableness, and how much from the previous stranding. This construction is now well settled; but we do not think that it rests on good grounds.1 1 The first case after the clause was introduced was in 1754, before Lord Chief Justice Ryder, Cantillon v. London Ass. Co., cited 3 Burr. 1553, where it is said the court "and a special jury looked upon this as a condition, and that by the ship's being stranded the insurer was let in to claim his whole partial - average loss." In 1764, the question arose whether the exception, "free from average, unless general," let in a partial loss, where there was also a general average. Lord Mansfield said: "The insurer is liable for all losses arising from the ship being stranded, and in all cases where there is a general average; but all other partial losses are excluded by the express terms of the policy." Wilson v. Smith, 3 Burr. 1550. The same reason would seem to apply here as in the case of stranding, and the fact that the insured was permitted to recover only the damage sustained by the general average, which ruling has not been controverted to this day, shows, we think conclusively, that the intention was to exclude all partial loss, except that sustained in consequence of a general average, and by stranding. In 1790, came the nisi prius case of Bowring v. Elmslie, 7 T. R. 216, n., before Lord Kenyon, C. J. The insurance was on fish. Lord Kenyon charged that "the stranding of the ship put the fish in the same condition as any other commodity not mentioned in the memorandum, and the underwriters were liable for all damage sustained by it; 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 was intended to prevent." The defence in this case was twofold: 1st, that the ship had been fraudulently stranded; 2d, that the damage to the fish was not occasioned by the stranding. The jury found for the defendant, on the ground that the stranding was fraudulent. So, it is settled, that if there be a stranding, the insurers are liable, although the partial loss took place at a different time, from a different cause, and at a different place. Such, at least, is the law in England; but some question exists, whether in this country a construction would not be given to this clause, upon this point, more in harmony with the intention of those who originally used it. Here, however, the question is not of so much importance, because our policies either provide that the loss shall happen by the stranding, or the clause in regard to stranding is struck out altogether. And in England, if the stranding take place after the memorandum articles have ceased to be at risk, and the adventure as to them has terminated, it is not a "stranding," within the policy.2 The phrase," or the ship be stranded," is construed so far strictly that no stranding, unless of the ship itself, The next case in point of time is Nesbitt v. Lushington, 4 T. R. 783, decided in 1792, where a mob came on board the vessel, and weighed anchor, upon which the vessel drove upon a reef of rocks and was stranded. The mob compelled the captain to sell all the cargo at a price less than its value, except about ten tons, which was damaged by the stranding, and was thrown overboard. It was held, that the insured could only recover for that portion which was injured by the stranding. In Burnett v. Kensington, 1 Esp. 416, 7 T. R. 210, the vessel struck on a rock, but did not remain there, although several of her planks were started and water entered and damaged the cargo. She was afterwards voluntarily stranded by the captain, under the directions of a pilot, in order to save both ship and cargo. The ship sustained no damage from the stranding, and afterwards pursued her voyage with the greater part of the cargo. After several trials, the jury found that the ship was stranded, but that the damage did not arise in none there any way from it, and a verdict was found for the defendant. But the court held, that, if the ship was stranded, this destroyed the exception and let in the general words of the policy. Lord Kenyon, speaking of Bowring v. Elmslie, and Nesbitt v. Lushington, said: “ "My two opinions that have been referred to, the one in the nisi prius case, and the other in Nesbitt v. Lushington, have no weight with me as judicial authorities, though I confess I have not been able to extricate my mind from the reasoning that led me to the conclusion in those cases." 1 See 2 Arnould, Ins. 858. Roux v. Salvador, 1 Bing. N. C. 526. In this case, the goods were sold at an intermediate port, and the ship was afterwards stranded before reaching her port of destination. Held, that, if there was not a total loss at the intermediate port, the subsequent stranding would not let in a claim for a partial loss. The decision was afterwards reversed, but this position was not controverted. 3 Bing. N. C. 266. |