VI. The fhip had exceeding bad weather till her arrival at CHA P. Lisbon, on the 10th of January 1784, the ship being bound to Figara. When the arrived at Lisbon, a furvey was had. at the request of the captain, who was also the confignee of the goods, by the Board of Health; and it appeared to them, and fo the fact was, that the cargo was of no value through fea damage. The fhip did not proceed to Figara. The defendant has paid into Court the amount of the par- [115] tial lofs fuftained by the fhip, and alfo the general average upon the cargo. Lord Mansfield." Moft litigations arise from improper statements of cafes, and from not properly defining terms. This clause relative to fruit and fish, is now a very old one in policies of infurance. The infurer undertakes for all loffes, except particular damage, unless the ship be stranded: he engages against a total lofs. What is a loss? The total lofs of the thing infured is the abfolute deftruction of it, by the wreck of the fhip. The fish may all come to port; though from the nature of the commodity, it may be damaged, it may be ftinking: ftill as the commodity Specifically remains, the underwriter is discharged." The other judges concurred, Mr. Justice Buller observing, that from the first introduction of the clause in the year 1749, till the prefent time, the underwriter never has been held answerable but in cafes where there has been a total lofs of the commodity. So alfo in an infurance on fruit from Lisbon to London, M'Andrews v. it appeared that the fhip was captured, and recaptured, sittings at G. Vaughan, brought into Portsmouth, and afterwards arrived at London: H. after Mich. but the cargo, by the capture, recapture, and confequent *793. length of the voyage, had fuftained a damage of 801. per cent. The aflured, however, never heard of the capture till the fhip was fafe at Portsmouth, and then he offered to abandon. Lord С НА Р. VI. Nefbitt v. Lord Kenyon." As there has been no ftranding, there cannot be a recovery for a partial lofs. The queftion then is, Whether the affured can recover for a total lofs? Had the plaintiff heard of the capture only, he might have abandoned but he hears nothing of the accident till the hip is in fafety. The cargo arrives at the port of deftination; and though it is good for very little, yet it has invariably been held that the voyage muft either be loft, or the cargo, if it be one of thofe mentioned in the memorandum, must be wholly and actually destroyed to entitle the affured to recover." The plaintiff was nonfuited. The effect of the memorandum has been alfo very reeently difcuffed by the whole Court, in an action on a policy on wheat and coals, the declaration stating the lofs to be by detention. It appeared in evidence that the ship was forced by stress of weather into Elly Harbour in Ireland, and there happening to be a great fcarcity of corn. there at that time, the people came on board the ship in a tumultuous manner, took the government of her from the captain and crew, and weighed her anchor, by which the drove upon a reef of rocks, where fhe was ftranded, and they would not leave her till they had compelled the captain to fell all the corn (except about 10 tons) at a certain rate. The 10 tons were loft in confequence of the stranding, by which it was damaged, and obliged to be thrown overboard. The fhip afterwards arrived with the rest of the cargo at the place of deftination. A verdict was found as for a total lofs. A motion was made for a new See ante, p. 78. trial. There were other points in the caufe, one of which has been already confidered. As to this upon the memorandum, Lord Kenyon faid-" This being a policy upon corn, the memorandum ftates that the underwriter will not be liable for any average, unless general, or the ship be ftranded. And I ar of opinion that this is not a general average; because the whole adventure was never in jeop ardy. VI. ardy. There is no pretence to fay that the perfons, who CHA P. took the corn, intended any injury to the fhip or any other part of the cargo but the corn, which they wanted in order to prevent their fuffering in a time of fcarcity. Therefore the plaintiffs could never have called on the reft 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 afcertain whether their being damaged arofe from any accident, or from the nature of the articles themselves, this memorandum is inferted in all policies, to prevent disputes; and by it the underwriters exprefsly provide they will not pay any average, unless general, or the fhip be stranded. When a ship is stranded, then the underwriters agree to ascribe the lofs to the ftranding, as being the most probable occasion of the damage, though that fact cannot be always afcertained. Therefore here all the damage done to the cargo thrown overboard may be afcribed to the ftranding; but the objection is, that the declaration imputes the lofs to another caufe." Mr. Juftice Buller." With refpect to the objection, that this does not fall within the reafon of the memorandum; there are only two inftances, in which the owner may recover an average lofs on the articles there enumerated; either where the average is general, or where the lofs arifes from the ftranding of the veffel. Now this cannot be faid to be a general average, for the reafons already given. And as to the other inftance of stranding, the plaintiffs are entitled to recover for any lofs occafioned to the cargo in confequence of the ftranding, provided it be a direct and immediate confequence of ftranding: but they cannot recover for that which was taken by the mob; for that was not the confequence of the ftranding, but, on the contrary, the ftranding was occafioned by the mob coming on board for the corn. The rioters took poffeffion of the ship in order to get at the cargo: but this lofs cannot Boyfield v. cannot be afcribed to the ftranding. Suppofe the mob had taken out 100 quarters of corn before the ship had been stranded, and had ufed 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 he was ftranded is as much unconnected with that circumftance as if it had been before. But the lofs which happened to that part of the cargo which was thrown overboard, being afcribeable to the stranding, and being a direct and immediate confequence of the peril infured againft, might have been recovered, had there been any count in the declaration applicable to a loss by ftranding." There is indeed a cafe in Sir John Strange's Reports, 2 Stra. 1065. which feems to militate against the above decifions. [116] Upon the execution of a writ of inquiry before Lord Hardwicke, when Chief Juftice, it appeared, that the defendant was an infurer to the amount of 2001. upon corn, the value of which was 2174: that the corn was so damaged in the voyage, that it fold for 67. only, and the freight came to 80%. The queftion upon this cafe was, Whether, as the freight exceeded the falvage, this was not to be confidered as a total lofs ? The Chief Juftice was of opinion, that within the reason of deducting the freight, when the falvage exceeds it; the plaintiff in this cafe, wherein it fell fhort, was entitled to have it confidered as a total lofs. The jury accordingly found for the plaintiff. Upon this cafe it may be obferved, that it was decided prior to the introduction of the claufe, upon which fo much has lately been faid; and confequently, fuch a decifion can have no weight now, because the law is altered on account of the agreement of the parties. Indeed the cafe I am about to cite was exactly fimilar in circumstances to VI. to Boyfield v. Brown: but Lord Mansfield in his charge to CHA P. the jury gave a very different direction, and the jury found accordingly. Sittings after hall. It was an action brought on a policy of insurance on Mason v. goods, on board the Happy Recovery, at and from London to Skurray, St. Auguftine, to recover for a total lofs. The cargo was Hilary Term, peas, which, in a former caufe on the fame policy, were 1780, at Guild held to fall within the general denomination of corn, in the Vide ante, 112 memorandum at the foot of the policy. The peas arrived at the place of destination; but being much damaged, the produce of them was lefs by about three fourths than the freight, which, on account of the ship's arrival at the port of discharge, became dye. The defence fet up by the underwriter was, that if the goods mentioned in the memorandum arrive at the market, though a lofs amounting to a total one has happened, the underwriters are not liable. Four or five witneffes con verfant in fettling loffes upon policies being called, proved, that the ufage was, in fuch cafes, to hold the underwriter discharged, Lord Mansfield told the jury, "this was a question of confequence, and it turned upon the general import of the exception the witneffes examined have put it on that point; and they hold, that if the specific thing come to the port of delivery, the underwriter cannot be called on. How did this matter stand before the year 1749? When the policy was general, and operated as an indemnity, there was little difference between a total and a partial lofs. His lordship here stated the determination of Boyfield v. Brown, which, he observed, was prior to the claufe in question. But the cafes now ftand upon the memorandum, which is in very general words. The question is, Whether the ufage has not explained the generality of the words? If it has, every man, who contracts for a policy under ufage, does it, as if the point of ufage were inferted in his con tract |