1832.

BLACKETT

V.

ROYAL EXCHANGE ASSUR. Co.

Spankie, Serjt., and Maule shewed cause.-The evi- Exch. of Pleas, dence of usage was properly rejected. The words, boat, &c., are express unequivocal words, and evidence of usage was clearly inadmissible to contradict their import. Parkinson v. Collier (a), 1 Phill. Evid. (b). If parol evidence had been received in this case, it would have been received to vary an express unambiguous written contract. It was proved at the trial that the boat was properly slung, and that it would have been improper, if it had not been so slung. Indeed, even if it had been improperly stowed, negligence in that respect, on the part of the master, would have furnished no defence. It would be extremely dangerous to admit, on such a question, evidence of a usage at Lloyd's, which only amounts to a usage not to pay, a species of prescription de non solvendo.

Secondly. The insurance comprehends the whole voyage.. The question is, whether, where the ship arrives at her destination, damaged to an extent more than 31. per cent., the underwriters can inquire whether such damage occurred at one stroke? Upon consideration of this proposition, the question answers itself. In the case of sea damage to a ship or goods, especially enumerated goods, there can hardly be an instance of an average loss, in which there. would not be some ground for inquiring at what period the loss occurred, But there are two cases which will be relied upon. In De Cheminant v. Pearson (c), it was holden, that the liability of the underwriter was not restricted to the single amount of his subscription, but that he may be subject either to several average losses, or to an average loss and total loss, or to money expended about the defence, &c., of the ship, to a much greater amount than the subscription. It is said, that case shews, that the losses are several and independent; but it will be found

(a) Park, Insur, 416. (b) P. 539, 6th edit. (c) 4 Taunt. 367.

1832.

BLACKETT v. ROYAL EXCHANGE ASSUR. Co.

Exch. of Pleas, not to touch the present question. In the first place, that vessel had been repaired before the total loss, so as to vest the partial loss; but the nature of the policy is, a contract to indemnify for an aliquot proportion of the ship; and therefore it was clear, that the underwriter was liable above the actual sum subscribed. In Livie v. Janson (a) the ship was warranted free from American condemnation; she was afterwards partially damaged, and subsequeutly seized by the American government and condemned; it was holden, that the seizure took away the right to recover for the partial loss. This case shews, conclusively, the ground upon which the previous case proceeded, viz. the intermediate repair; for the assured cannot bring an action against underwriters for a partial loss, pending the voyage, unless the ship be repaired, for she may be lost by a peril not insured against, and then no injury is sustained; and this is the view taken by the author upon whose doubt this rule has in some measure been obtained (b). The foreign writers upon this subject seem to be in favour of the plaintiff; for Emerigon (c), Valin, and Pothier, treat averages and average as identical. On the construction contended for by the other side, the assured might sustain a series of partial losses, amounting to 100l. per cent., without having any remedy; and, on long voyages, as frequently happens, there might be a variety of losses under 31. per cent., amounting, together, to a very serious proportion of the whole. If a ship arrive, at the end of her voyage, damaged to an amount more than 31. per cent., the underwriters ought not to be permitted to inquire whether such loss occurred at one period or not. Great inconvenience would arise, if an inquiry of this nature were to be entered into after every long voyage. This point has never been raised by the underwriters until

(a) 12 East, 648.

(b) Steven's Aver. 205.

(c) Traite des Assurances, c. 12,

s. 44.

the present time, though it must frequently have occur- Exch. of Pleas, red.

The Attorney-General, Campbell, and Follett, contra.-Usage may be resorted to, for the purpose of getting at the meaning of words of this description. The evidence was offered to shew, that the general usage of trade, and particularly at Lloyd's, was, that the underwriters did not pay on the loss of boats slung over the quarters. Such an universal usage shewed the understanding of the parties, and what they had in their contemplation. Mercantile contracts are always to be construed according to the meaning in which they are understood by mercantile men. Evidence of usage has been admitted to prove that goods stowed on deck were not within a general policy on goods (a). So, in Gabay v. Lloyd (b), evidence of usage was admissible, to explain the ambiguous meaning of the word "mortality," a warranty against which had been held, in Lawrence v. Aberdein (c), not to extend to a case where animals died in consequence of the agitation of the ship in a storm. It is true, that, in Gabay v. Lloyd, the evidence of usage was unsuccessfully offered; but it was admitted, for the purpose of shewing (if it had been strong enough to do so) that the manner in which the animals perished was not such a loss as the policy contemplated, and that the underwriters did not pay such losses.

In the last of the cases on the subject of goods stowed on deck, the question was not as to the propriety of their being stowed there, but whether, being so stowed, they were protected by the policy, in which they were not specifically named. Evidence of usage was admitted to shew,

(a) Ross v. Thwaite, London Sittings after Hil. T. 16 Geo. 3; Backhouse v. Ripley, C. P. Sittings after Mich. 1802, cor. Chambre, J.,

Park on Insur. 26.

(b) 3 B. & C. 797; 5 D. & R. 641.

(c) 5 B. & A. 107.

1832.

BLACKETT

v.

ROYAL EXCHANGE ASSUR. Co.

1832.

BLACKETT

บ.

Exch. of Pleas, that the underwriters must have been aware of the practice of stowing goods of the description in question on deck; and the proof that they were usually stowed on deck, was considered as tantamount to proof that the underwriters were aware of it (a). In Palmer v. Blackburn (b), evidence of the usage of settling the loss on a policy on frieght, was admitted.

ROYAL EXCHANGE ASSUR. Co.

But, secondly, several average losses, under 31. per cent., cannot be clubbed together, so as to make the underwriters liable. Le Cheminant v. Pearson (c) is in favour of the defendants. It was there held, that the losses were distinct, and that the underwriters might be liable for a total loss, after having been liable to contribute for the repairs of a partial loss. It would be very hard to hold, that the losses were distinct, so as to charge the underwriters first with a partial, and then with a total loss, if it were also to be held, that, for the purpose of charging the underwriters, losses were to be reckoned joint, and that they might be clubbed together, for the purpose of making the amount above the 31. per cent. Suppose a vessel sustains a loss above 31. per cent., and that such loss is paid by the underwriters, or is sued for, and that afterwards another loss, under 31. per cent., is sustained, would that second loss give a new cause of action?

[Lord Lyndhurst―That argument would perhaps be met, by saying that no action could properly be brought until the end of the voyage.]

The averages here are quite distinct, as to time, place, and the nature of the loss. The warranty is an answer to each average under 3l. per cent., and the underwriters subscribe the policy on the faith of such warranty.

Cur. adv. vult.

(a) Da Costa v. Edmonds, 4 Camp. 142.

(b) 1 Bing. 61.

(c) 4 Taunt. 367.

Lord LYNDHURST, C. B., now delivered the judgment Exch. of Pleas, of the Court:

There were two questions in this case, one, whether parol evidence of an usage was admissible to shew, that, for boats on the outside of the ship, slung upon the quarter, underwriters never paid; the other, upon the construction of the clause-"free from average under 31. per cent.," whether the underwriter is answerable for every instance of damage, however small, if the aggregate in toto amount to 31. per cent., or whether each instance, where the damage it occasions can be ascertained and is under 31. per cent., is to be excluded; and we are against the defendants upon both. The policy is in the usual form as to ship and goods, and, as far as regards the ship, imports to be upon the ship (that is, the body), tackle, apparel, ordnance, munition, boat, and other furniture of the ship called the Thames. There is no exception, and the policy is, therefore, upon the face of it, upon the whole ship, on all her furniture, and on all her apparel. It was in evidence in the cause, and admitted upon the argument, that, upon such voyages as that insured, ships invariably carry a boat in the place in which this boat was carried, and slung as this boat was slung; and that the ship would not be properly furnished or equipped, unless it had a boat in that place, and so slung. The objection, then, to the parol evidence is, that it was not to explain any ambiguous words in the policy, any words which might admit of doubt, nor to introduce matter upon which the policy was silent, but was at direct variance with the words of the policy, and in plain opposition to the language it used. That, whereas the policy imported to be upon the ship, furniture, and apparel generally, the usage is to say that it is not upon all the furniture and apparel, but upon part only, excluding the boat. Usage may be admissible to explain what is doubtful, it is never admissible to contradict what

1832.

BLACKETT

v.

ROYAL EXCHANGE ASSUR, Co.