of marine insurance, and may have the effect of extending a reasonable indemnity to many cases not distinctly covered by the special words, they are entitled to be considered as material and operative words, and to have the due effect assigned to them in the construction of the instrument, and which will be done by allowing them to comprehend and cover other cases of marine damage of the like kind with those which are specially enumerated and occasioned by similar causes. The principle here laid down is known as the principle "ejusdem generis (of like kind).” In Butler v. Wildman, 1820,1 the captain of a ship threw a large quantity of dollars overboard to prevent their falling into the hands of an enemy by whom he was pursued. Chief Justice Abbot said: "If not, strictly speaking, jettison, it is ejusdem generis, and therefore falls within the general words." In Phillips v. Barber, 1821,2 the same judge said : "These general words are indeed restrained in construction to perils ejusdem generis with those more particularly enumerated in this policy." In Davison v. Burnand, 1868,3 Mr. Justice Willes expressly recognised the rule of construction laid down in Cullen v. Butler, 1816,4 and said, "The question is not whether the loss here was strictly one occasioned by the perils of the sea, but whether it was such other loss within the policy, which of course must be a loss of the same or a similar kind to one happening from perils of the sea." In the case of the West India and Panama Telegraph Company v. Home and Colonial Marine Insurance Company, 1880,5 a claim was made for the payment of damage done to the steamer Investigator, through the bursting of its boiler. Upon examination it was found that the bursting was due to the thinning down of the shell of the boiler, and that the thinning down was due water on the outside of the of sediment in the inside. chiefly to the action of bilgeboiler and to the accumulation Lord Selborne and Chief Justice 1 3 B. & Ald. 398. But see p. 103, note 2, Blankenhagen v. London Assurance. 2 5 B. & Ald. 161. 4 5 M. & Sel. 461. 3 L. R. 4 C. P. 117. Το Cockburn held that the explosion was a peril within the general words: Lord Esher (then Brett, J.) held that the explosion was so much ejusdem generis with fire as to come within the general words: but he added that without the word "fire" nominatim in the policy he could not have seen that explosion was like the perils enumerated. The case was decided in the Court of Appeal in favour of the assured, and did not go to the House of Lords. But the whole matter came before the House of Lords in the case of the Inchmaree ̧ (Hamilton v. Thames and Mersey Marine Insurance Company, 1887),1 a test case arranged to go up to the Lords in order that, if possible, the liability of underwriters for damage to steamers' machinery insured on an ordinary marine policy should be clearly defined. take the words of Lord Macnaghten: "The Inchmaree, was in March 1884 off Diamond Island, lying at anchor and about to prosecute her voyage. It was necessary to fill up her boilers. There was a donkey engine and donkey pump on board, and the donkey engine was set to pump up water from the sea into the boilers. Those in charge of the operation did not take the precaution of making sure that the valve of the aperture leading into one of the boilers was open. This valve happened to be closed. The result was that the water being unable to make its way into the boiler was forced back and split the air-chamber and so disabled the pump. This was the beginning and the end of the misfortune." On behalf of the assured an endeavour was made to show that the damage was covered by the general words. The Queen's Bench Division gave judgment for the assured; the Court of Appeal affirmed this judgment by a majority consisting of Lords Justices Lindley and Lopes, while Lord Esher dissenting took the opportunity of expressing his doubts of the correctness of the view he had taken in the Investigator, case (West India and Panama Telegraph Company v. Home and Colonial Marine Insurance Company, 1880).2 In the House of Lords on appeal these decisions were unanimously reversed, Lord 1 L.R. 17 Q.B.D 198 & 12 App. Cas. 484. 2 L. R. 6 Q.B.D. 51. Esher's view being maintained, namely, that the loss was covered neither by any of the special words of the policy nor by the general. The judgment of Lord Herschell was particularly full: he considered that it was "impossible to say that this is damage occasioned by a cause similar to 'perils of the sea' on any interpretation which has ever been applied to that term." And he went on to say, "It will be observed that Lord Ellenborough limits the operation of the clause to 'marine damage.' By this I do not understand him to mean only damage which has been caused by the sea, but damage of a character to which a marine adventure is subject. Such an adventure has its own perils, to which either it is exclusively subject or which possess in relation to it a special or peculiar character. To secure an indemnity against these is the purpose and object of a policy of marine insurance." Since the Inchmaree, case there has been no further litigation on the general words: the judgment of the House of Lords was decisive and unmistakable. But the immediate practical consequence was the invention of a special clause of such a tenor as to get completely round the House of Lords' judgment which was given on an ordinary policy. The use of that clause has become almost universal in policies on steamers, particularly in time policies. It reads as follows : This insurance also specially to cover (subject to the free-ofaverage warranty) loss of or damage to hull and machinery through the negligence of master, mariners, engineers, or pilots, or through explosions, bursting of boilers, breakage of shafts, or through any latent defect in the machinery or hull, provided such loss or damage has not resulted from want of due diligence by the owners of the ship, or any of them, or by the manager. This clause is often, for the sake of brevity, called the "Inchmaree, clause." The words "subject to the free-ofaverage warranty" are a recent addition: their effect will become clear when that warranty comes to be discussed. CHAPTER VII THE POLICY: PART II—continued Sue and Labour Clause, Waiver Clause, Force and Effect of Policy, Consideration, Attestation And in case of any loss or misfortune it shall be lawful1 to the assured, their factors, servants, and assigns, to sue, labour, and travel for, in, and about the defence, safeguard, and recovery of the said goods and merchandises and ship, etc., or any part thereof, without prejudice to this insurance; to the charges whereof we, the assurers, will contribute each one according to the rate and quantity of his sum herein assured. This clause appears in the London policy of 1613, and would seem to be indigenous to England, as no clause corresponding to it is found in the Florentine form of 1527. It is striking that the first mention in the policy of payments, charges, and expenses does not occur in reference to loss of, or damage to the subject insured, but in connection with efforts made to defend, safeguard, and recover ship or goods, or any part thereof, after a loss or misfortune has occurred. This portion of the policy is known as the " sue and labour clause." It is, in fact, a supplementary side-contract dealing with one separate class of expenses known as "particular charges." Its operation is limited and completed by what is termed the "waiver clause," which in some policies is printed in the margin, but in the ordinary modern Lloyd's form follows the sue and labour clause as part of the text, viz.— And it is expressly declared and agreed that no acts of insurer 1 The American form reads: "it shall be lawful and necessary to and for the assured, etc."; the necessity thus imposed on the assured introduces into American law and practice features unknown in England. or assured in recovering, saving, or preserving the property insured, shall be considered as a waiver or acceptance of abandonment. If the two are taken together their intent is clear: it is plain that if either party to the insurance contract takes steps to defend, safeguard, or recover property covered by the policy, these steps shall not be taken to prejudice or alter the respective positions of the parties concerned, and that when the assured, either in person or through factors, servants, or assigns, does his best to avert loss, his expenses incurred in doing this are guaranteed to him by the underwriter in proportion to the sum insured. In fact the object of the sue and labour clause is to encourage the assured, his employees, and all to whom the benefit of the insurance may have been passed, to take all possible steps to save property in danger: the object of the waiver clause is to enable the assured (and those deriving rights from him), and also the underwriter, to undertake operations and incur expenses meant for the safeguard of the property insured, without any fear of thereby introducing some new element into the contract or nullifying some step of commercial or legal procedure already taken. Abandonment, acceptance of abandonment, and waiver or revocation of abandonment will be treated at some length below. It is to be observed that the clause providing for “suing and labouring” takes no effect until a loss or misfortune has actually occurred: it does not cover expenses incurred or operations undertaken with the object of averting the occurrence of a peril. Such expenses and operations are the elements forming another nexus between assured and underwriter. There is no suggestion in the sue and labour clause of the possibility that the underwriter may take steps for the defence, safeguard, etc., of the property insured. That may be either because in the days when the policy was drawn up such a thing was unheard of, or because the right of the underwriter to take such steps was considered so unmistakable that it was unnecessary to specify it. But by the time that the parties to the contract found the necessity of devising the waiver clause, it had become apparent that the |