There is no doubt

danger with the moral certainty of loss. about the general principle, that if the voyage be relinquished merely through fear of capture, the loss is not covered by the policy. The apprehension of capture, or of any other peril in transitu, is no ground of abandonment. But a just fear of one of the perils insured against has been deemed equivalent to the presence of vis major, when it applied directly and effectually, as in the case of a blockading squadron, so as to break up the voyage. The danger was imminent, and might be said to be present and palpable, as well as apparently remediless and morally certain. If, therefore, the danger be so great as to amount to almost a certainty *of capture, it becomes a restraint in contemplation of *294 the policy, and this is the doctrine which is best supported by authority.

A warranty against illicit trade was introduced into some of our American policies in 1788. It was intended to apply only to seizures for breaches of the laws of trade, and the commercial regulations of ports. It does not extend to seizures for offences against the law of nations, nor to acts of lawless violence, though committed under a pretext of some municipal regulation; nor to arbitrary seizures under the pretence of illicit trade, when in truth no such thing existed. It only applies to protect the insurers against illicit trade actually carried on or attempted.b

(3.) Of risks excluded by the usual memorandum.

To prevent disputes respecting partial losses, arising from the perishable quality of the goods insured, or from trivial

■ 1 Emerigon, 507–512. Symonds v. Union Ins. Company, 4 Dallas' Rep. 417. Schmidt v. Union Ins. Company, 1 Johns. Rep. 249. Craig v. Union Ins. Company, 6 ibid. 226. Barker v. Blakes, 9 East's Rep. 283. Olivera v. Union Ins. Company, 3 Wheaton's Rep. 183. Saltus v. Union Ins. Company, 15 Johns. Rep. 523. Thompson v. Read, 12 Serg. & Rawle, 440. Symonds v. Union Ins. Company, 1 Wash. Cir. Rep. 382. Vigers v. Ocean Ins. Company, 12 Louisiana Rep. 362. If the loss be occasioned by the illegal act of a foreign government, it is a loss within the perils of the policy, even though the master refused to submit to the illegal order, provided his actual conduct was bona fide in furtherance of the voyage. Williams v. Suffolk Ins. Company, C. C. U. S. Mass., August, 1838. 3 Sumner R. 270. ↳ Faudell v. Phœnix Ins. Company, 4 Serg. & Rawle, 29. Cuculu v. Orleans Ins. Company, 18 Martin's Louis. Rep. 11. 24

VOL. III.

subjects of difference, it has been a general practice to introduce into policies a stipulation, by way of memorandum, that upon certain enumerated articles, the insurer should not be liable for any partial loss whatever, and upon others for none, under a given rate per cent. This clause was first introduced into the English policies about the year 1749. Before that time the insurer was liable for every injury, however small, that happened to the thing insured. In France, if there be

no such express stipulation, the ordinance of the ma*295 rine, and the new code, provide that the insurer *shall

not be liable, if the partial loss does not exceed one per cent. of the value of the article damaged.a

The memorandum clause alluded to, usually declares that the enumerated articles, and any other articles that are perishable in their own nature, shall be free from average under a given rate, unless general, or the ship be stranded. (1) In consequence of this exception, all small partial losses, however inconsiderable, are to be borne by a general average, provided they were incurred in a case proper for such an average; and in Cantillon v. London Assurance Company, it was held, that the exception amounted to a condition, and that if the ship was stranded, the insured was let in to prove his whole partial loss. But in Wilson v. Smith,e that decision was overruled, and it was held that those words did Lot make a condition, but only an exception; and that in the case of strand

b

3 Burr. Rep. 1551. Ord. de la Mar. tit. Assurances, art. 47. Code de Commerce, art. 408.

b Cited 3 Burr. Rep. 1553.

3 Burr. Rep. 1550.

(1) The usual clause in the English policies is this:

1. "Corn, fish, fruit, &c., are warranted free from average, unless general, or the ship be stranded.

2. "Sugar, tobacco, &c., are warranted free from average, under five per cent.

3. "All other goods, also the ship and freight, are warranted free of average, under three per cent., unless general, or the ship be stranded."

The ambiguity chiefly arises from the use of the word average, which has various meanings, as applied to sea losses. As here used, says Mr. Arnould, it means partial loss by sea damage; and the purport of the words, free of average, is, that the underwriter, as to the articles enumerated in clause (1,) stipulates to be free from liability for any extent of deterioration by sea damage, however great, which does not amount to a total loss.

And as to the articles enumerated in clause (2,) he makes the same stipulation as to all sea damage, which does not amount to five per cent. of their previous cost or insured value; it being understood in both cases, that if the loss be total, he engages to pay the full amount. 2 Arnold on Ins. 854.

ing, and in all cases proper for a general average, and in those cases only, the memorandum did not apply. Afterwards, in Mason v. Skurry,a Lord Mansfield held the same doctrine; and in Cocking v. Fraser, the principle was carried still further, and received its due expansion, and was clearly and precisely defined. It was settled, by a strong determination of the Court of K. B., that though a total loss may exist, in certain cases, when the voyage is defeated, yet in case of perishable articles within the memorandum, the insurer is secure against all damage to them, whether great or small, whether it defeats the voyage, or only diminishes the price of the goods, unless the article be completely and actually destroyed, so as no longer physically to exist. Considering the difficulty of ascertaining how much of the loss arose by the perils of the sea, and how much by *the perishable *296 nature of the commodity, and the impositions to which insurers would be liable in consequence of that difficulty, the rule of construction, as settled in that case, is very salutary, by reason of its simplicity and certainty.

с

But this decision was shaken, and the original doctrine of Lord Ch. J. Ryder, in Cantillon v. London Assurance Company, revived by the decision of the K. B., in Burnet v. Kensington, which declared, that if the ship be stranded, it destroyed the exception, and let in the general words of the policy. It was also shaken by the observations of Lord Alvanley, in Dyson v. Rowcroft, and of Lord Ellenborough, in Cologan v. London Assurance Company. In our American courts, the doctrine of the case of Cocking v. Fraser is the received law. It was explicitly and pointedly recognised as a sound decision by the Supreme Court of New-York, in Maggrath v. Church,f and it has received a similar sanction in subsequent cases, in that and in other courts; and the

■ Park on Insurance, 160.

↳ Park on Insurance, 151. In some of our American policies the exception in these words, 66 or the ship be stranded," is omitted.

7 Term Rep. 210.

d3 Bos. & Pull. 474.

5 Maule & Selw. 447.

1 Caines' Rep. 196.

Neilson v. Columbia Ins. Company, 3 Caines' Rep. 108. Saltus v. Ocean Ins. Company, 14 Johns. Rep. 138. Marcardier v. Chesapeake Ins. Company, 8 Cranch's

weight of authority is in favour of the doctrine, that in order to charge the insurer, the memorandum articles must be specifically and physically destroyed, and must not exist in specie. It has been frequently a vexed point in the discussions, whether the insurer was holden, if the memorandum articles physically existed, though they were absolutely of no value. The dicta of some of the judges, in the cases referred to, are in favour of the doctrine, that an extinguishment of the memorandum articles in value, was equivalent to an extinguishment in specie; and there is much plausible

reasoning in favour of that explanation of the rule. *297 *Lord Ellenborough, in Cologan v. London Assurance

Company, expressed himself strongly on the point, and declared, that it could not be less a total loss because the commodity subsisted in specie, if it subsisted only in the form of a nuisance. There was a total loss of the thing, if by any of the perils insured against, it was rendered of no use whatever, although it might not be entirely annihilated.a (1)

If there be a total loss of the voyage by reason of shipwreck, or any other casualty, and there be no other means to forward the cargo, there is no distinction between the memorandum articles and the rest of the cargo. The total loss applies equally to the whole. When part of the articles in the

Rep. 39. Morean v. United States Ins. Company, 1 Wheat. Rep. 219. Skinner & K. v. Western M. & F. Ins. Company, 19 Louis. R. 273.

5 Maule & Selw. 447. Parry v. Aberdein, 9 Barnw. & Cress. 411. Mr. Benecke says, that the prevalent opinion now is, that if the memorandum articles are, by sea damage, rendered of no value, there is a total loss, though they exist in specie. And yet he puts, and leaves unanswered the question, whether, if a cargo of fish, valued at 100 pounds, be entirely rotten, and can be sold for one shilling, for manure, is that deemed of any value? Benecke on Indemnity, 379. He might have answered in the negative, for the cargo was of no value as fish, or in contemplation of the contract.

Manning v. Newnham, Condy's Marshall, 586. Cologan v. London Assurance Company, 5 Maule & Selw. 447. Morean v. United States Ins. Company, 1 Wheat. Rep. 219. Maggrath v. Church, 1 Caines' Rep. 214. And see Phillips on Insurance, vol. ii. 467-510, 2d edition, where the cases are collected and stated. Poole v. Protection Ins. Co. 14 Conn. R. 47. The French code, art. 409, exempts the insurer, under the clause, free from average, for all partial losses, except in cases

(1) If the public authorities order articles to be thrown overboard at the port of distress, or if they cannot be carried further, by reason of danger to the health of the crew, it is a case of total loss. Hugg v. Augusta Ins. & B. Co. 7 How. R. 592.

memorandum are totally destroyed by the perils insured against, and the residue remain partially damaged, it has been a very unsettled question, whether the insured was entitled to recover for the part so totally lost. The case of Davy v. Milford,a is a strong determination in favour of the *recovery. It was said that there was no case, nor *298 no reason to maintain, that where the least particle of the thing insured subsisted in specie, though the greater part was actually destroyed, the insured should be precluded from recovering the value of that which was totally lost. The language of some of the judges, afterwards, in Cologan v. London Assurance Company, was to the same effect. But in opposition to that doctrine, we have the case of Hedburg v. Pearson, in which the hogsheads of sugar covered by the memorandum were saved, but the greater part of the loaves in each hogshead were washed out and destroyed by a peril of the sea, and yet it was held to be only an average loss, and the insurer wholly discharged. So, in Guerlain v. Col. Insurance Company,d part of the memorandum articles (and which were distinct kinds of provisions, and specifically enumerated in the policy) were lost by shipwreck, and the insured was not allowed to recover, on the ground that the insurance was upon so much cargo as an integral subject, and the insurer was not liable for any particular item, though it was totally lost. The court referred to several decisions in the French tribunals, as reported by Emerigon, and to the doctrine of that writer, by which it appears, that in France, under the clause free of average, the insurer is not holden, though part of the subject insured be totally destroyed. The principle is, that the parties have a right to make their own contracts, and if the contract be lawful, it becomes a law to the court; and it would introduce uncertainty and confusion to undertake to modify the contract (as they do in Italy, under this very clause) upon assumed principles of equity. The cases of

which authorize an abandonment; and in such cases the insurer has the option between the abandonment and the claim for average loss.

15 East's Rep. 559.

b 5 Maule & Selw. 447.

7 Taunt. Rep. 154.

d 7 Johns. Rep. 527.

• 1 Emerigon, 662—670.

Targa, c. 52, note 18. Casaregis, Disc. 47. n. 10.