Average unles, general. Stranded. NOTE. The practical effect of the words is to prevent a narrow and technical construction being placed upon the perils specifically enumerated. If the assured wants to go further than this, he must cover his risk by special terms. 14. The term "average unless general" means a partial loss of the subject-matter insured other than a general average loss, and does not include "particular charges." 1 NOTE. In a case where it was held that general average could not be added to particular average to make up the 3 per cent. warranty, Lord Esher says that the words "average unless general " "must be read as equivalent to warranted free from partial loss under 3 per cent., unless it be a general average loss;" and Lord Bowen points out that from the time of Lord Mansfield the words have been read " as an exception, and not a condition, with this consequence, that the occurrence of a general average loss was held not to entitle the assured to recover for a particular average loss." 2 See further, Rule 15 and notes, and Note C, post, 145. 15. Where the ship has stranded the insurer is liable for the excepted losses, although the loss is not attributable to the stranding, provided that when the stranding takes place the risk has attached and, if the policy be on goods, that the damaged goods are on board.3 NOTE. It is unsafe to attempt a complete legal definition of "stranding." The question is mainly one of fact. Lord Tenterden, in an often-quoted case, says: "Where a vessel takes the ground in the ordinary and usual course of navigation and management in a tide river or harbour upon the ebbing of the tide or from natural deficiency of 1 See McArthur, Ed. 2, pp. 173, 261; see, too, § 65 and notes thereto, and note on Average, post, p. 145. 2 Price v. A 1 Small Damage Assn. (1889), 22 Q. B. D. at pp. 586, 591. 3 See McArthur, Ed. 2, p. 283; Arnould, Ed. 6, p. 821; Thames and Mersey Mar. Ins. Co. v. Pitts (1893), 1 Q. B. 476 (goods in lighters, not on board); The Alsace Lorraine (1893), P. 209 (goods landed at port of refuge); cf. Russell v. Erwin (1890), 6 Times L. R. 353, as to when a barge is stranded. water so that she may float again upon the flow of tide or increase of water, such an event shall not be considered as stranding within the sense of the memorandum. But where the ground is taken under any extraordinary circumstances of time or place, by reason of some unusual or accidental occurrence, such an event shall be considered as stranding within the meaning of the memorandum. According to the construction that has long been put upon the memorandum, the words 'unless general or the ship be stranded' are to be considered as an exception out of the exception as to the amount of the average or partial loss provided for by the memorandum, and consequently to leave the matter at large, according to the contents of the policy." See also note to last rule.1 1 16. The term "ship" includes the hull, materials and Ship. outfit stores and provisions for the officers and crew, and, in the case of vessels engaged in a special trade, the ordinary fittings requisite for the trade, and also, in the case of a steamship, the machinery, boilers, and coals.2 NOTE. The term "ship" is used in the Digest with the same meaning that it has in the ordinary policy. See § 16, ante. 17. The term "freight" includes the profit derivable Freight. by a shipowner from the employment of his ship to carry his own goods or movables, as well as freight payable by a third party, but does not include passage money. NOTE. The term "freight” is used throughout the Digest in the same sense as in the policy. See § 90, ante. 18. The term "goods" means goods in the nature of Goods. merchandise, and does not include personal effects or provisions and stores for use on board. In the absence of any usage to the contrary, deck cargo 1 Wells v. Hopwood (1832), 3 B. & Ad. 20, at p. 34; see this passage approved in Letchford v. Oldham (1880), 5 Q. B. D. 538, 545, C. A., where the cases are reviewed. 2 See McArthur, Ed. 2, p. 67; and § 16, ante. 3 See Arnould, Ed. 6, p. 31; Flint v. Flemyng (1830), 1 B. & Ad. 45; Denoon v. Home and Colonial Ass. Co. (1872), L. R. 7 C. P. at p. 349. K and living animals must be insured specifically, and not under the general denomination of goods.1 NOTE.-The expression "goods," in ordinary law, covers all movable tangible property.2 But when used in a policy the nature of the contract imposes a restricted meaning. If the insurer is required to undertake anything more than an ordinary risk, the policy ought to disclose the particular nature of the subject-matter insured. Hence it has been held that machinery is not covered by a policy on goods.3 So, too, if the policy is on a particular kind of goods, goods of another kind cannot be substituted.4 The construction of the rule would presumably be influenced by the fact whether or not the particular subject-matter was in fact made known to the insurer before the conclusion of the contract. See further, § 27 and notes thereto. 1 See McArthur, Ed. 2, p. 58; Arnould, Ed. 6, pp. 24-28; Gow on Insurance, pp. 44-46. As to meaning of " merchandise" in a contract of affreightment, see Carver's Carriage by Sea, Ed. 3, § 263. 2 See, e.g., Chalmers' Sale of Goods Act, 1893, § 62, and notes. 3 Scott v. Mannheim Ins. Co., Times, April 19, 1899. Mackenzie v. Whitworth (1875), 1 Ex. D. at p. 41. SECOND SCHEDULE. (See Section 70.) In the adjustment of claims for particular average in a policy on ship, in the absence of any special provision in the policy, the following items for repairing damage or making good losses are recoverable from the insurer without deduction, new for old : Graving dock expenses. Cost of removals. Use of shears, stages, and graving dock appliances. Cost of temporary repairs. Cost of straightening bent ironwork. All repairs of damage sustained by a vessel on her first voyage. Chain cables are subject to a deduction of one-sixth. All other repairs of damage sustained after the first voyage are subject to a deduction of one-third.1 1 See McArthur, Ed. 2, pp. 184, 213; cf. Gow on Insurance, p. 339, and Rules of Practice of Association of Average Adjusters, post, p. 155. |