natural death; and if the ship, in this case, had been driven out of her course by the perils of the sea, and the voyage thereby had become so protracted as to exhaust all the provisions, and, consequently, the means of sustaining the life of the animals insured, I think that the words "warranted free from mortality," introduced into this policy, would have protected the underwriters from that loss for which they otherwise would have been liable, as for a loss arising from the perils of the sea. And if there be any one case, in which effect can be given to those words, understanding them in their ordinary and popular sense, they ought not to be extended beyond that sense. There is very great difficulty, in construing these words, to give a protection to the underwriters against all losses arising from the vitality of the animals. Suppose, for example, a valuable horse, by the motion of a vessel in a storm, were to have his legs broken, but to arrive alive at Saint Vincents, the animal would be of no use; the underwriter would be liable for that loss; but if the animal were actually killed, he would not be liable at all. It could hardly be the intention of the underwriter that he should be liable in one of these cases and not in the other. If the construction I have put upon this very ambiguous phrase is not the sense in which it has been generally understood at Lloyd's Coffee-House, it will be very easy to introduce into policies other words, which shall more clearly express the meaning of the parties. In this case, therefore, there must be judgment for the plaintiff. BAYLEY J. My mind has not been free from doubt during the discussion of this subject; but I am now of opinion, that the assured is entitled to recover. Under a policy 1821. LAWRENCE against ABERDEIN. 1821. LAWRENCE against ABERDEIN. a policy in the common form, the assured would have been entitled to recover, either in case of the total destruction of the animals, or for any less injury, provided it was occasioned by any of the perils insured against. The words, "warranted free from mortality," are introduced into this policy by the underwriter for his benefit. It is his duty, therefore, to take care to frame his exception in words sufficiently large and extensive to meet all those descriptions of loss against which he intends to protect himself. The word "mortality" may, under certain circumstances, include every description of death, every termination of life to which mortals are subject. It applies generally, however, to that description of death which is not occasioned by violent means. If a great number of the crew, or of animals shipped on board a ship, were killed in the course of an engagement with an enemy, it would not be correct to say that there had been a great mortality among the crew, or among the animals. If, on the other hand, they had come to their death by any natural cause, the term mortality would be properly applied to express the cause of such death. If, in this case, the animals insured had died from sea-sickness, occasioned by the agitation of the ship, or in consequence of any other disease, contracted in the course of an unusually protracted voyage, the term mortality might apply to that description of natural death, so superinduced by the voyage. Under a common policy, if the declaration stated, that the ship had met with tempestuous weather,, and that the animals thereby became disordered, diseased, and died, and it be proved that their death was imputable to the agitation of the ship, occasioned by the tempestuous weather, that would be a loss by a peril of the sea, for which the underwriters would be liable. The exception introduced into this policy would, in my opinion, protect them from such a loss. The word "mortality" here used, may, therefore, receive a construction which will afford some protection to the underwriter, without extending it beyond its ordinary and popular sense. If we were to hold, that the exception protected the underwriter from every loss to which the property was subject, in consequence of the subject-matter insured being alive, instead of dead, this absurd consequence would follow, that if by the violent agitation of the sea the animals had their legs broken, and thereby became of no value to the owner, but arrived alive at St. Vincent's ; the underwriter would be responsible. Whereas, if they had died during the course of the voyage, he would not be liable at all. The circumstance of these words of the exception not being calculated to protect the underwriter from any loss, in the event of the animals receiving any injury short of death, seems to me to shew, that they were not intended to exempt them from a loss by the actual death arising immediately from a peril of the sea. I think that the words used in this exception will protect the underwriter in cases where the death of the animal arises from natural causes remotely produced by some of the perils insured against; but that they will not protect him where such death arises directly from any of the perils insured against. For these reasons, I am of opinion that there must be judgment for the plaintiff. HOLROYD J. I am of the same opinion. Although death may have been the immediate cause of the loss, and may have made the actual loss to the assured greater VOL. V. I 1821. LAWRENCE against ABERDEIN. 1821. LAWRENCE against ABERDEIN. greater than it otherwise would have been, still, as the injury to the animals which occasioned their death was caused directly by the violence of the storm, I am of opinion that this is to be considered as a loss by the perils of the sea. It, consequently, falls within the risks enumerated in the policy; and, it seems to me, that it is not excepted out of those perils by the words "warranted free from mortality and jettison.". Independently of those words, the underwriters would undoubtedly have been liable as for a loss arising from a peril of the sea. Those words were the language of the underwriters, and were introduced by them to protect themselves from a particular species of loss. By the terms of the policy, they insured against the perils of the sea, &c., and all other losses and misfortunes that should come to the hurt, detriment, and damage of the subject-matter insured. Now, the exception must be considered as ingrafted upon these general words in the policy, and the whole should be read together as one sentence; and then it would stand thus: that the underwriters will be liable for losses by perils of the seas, and all other losses except losses by mortality and jettison. It seems to me, that as the injury which immediately preceded and caused the death of the animals proceeded directly from the violence of the storm, the loss is to be considered a loss by the perils of the sea. Death may or may not have increased the amount of the actual loss to the assured. With respect to the mules and asses, the entire loss arose from the perils of the sea, and was neither increased nor diminished by their death. For, after receiving a mortal wound, they became of no value to the owner, and death consequently did not in any degree increase increase the loss. The case might be different with respect to the oxen; if they were killed after receiving an injury, their flesh might be of some value as food, and, consequently, their death may have increased the loss in some degree. But still, as the previous injury was occasioned by the perils of the sea, whether the death of the animal did or did not increase the amount of the actual injury to the owner, I am of opinion that it must be considered a loss by the perils of the sea. The circumstance of the parties having inserted in the exception the word jettison, satisfies me, that they did not contemplate the case of violent death. For, although it is possible that the animals thrown overboard might, under favourable circumstances, reach the shore and survive, yet I think that the term usually denotes the throwing overboard in a storm, when there would be little probability of animals surviving; and that it must, therefore, mean a jettison whence death ensues. Now, if the term "mortality" were intended to protect the underwriter in every case of the animals meeting with a violent death, the introduction of the word "jettison" would be superfluous, as that species of loss would be covered by the word "mortality." Besides, this absurd consequence would follow; if we were to give to the words used in the exception the construction contended for by the defendant, that where the violence of the wind and waves was so great as to cause the death of the animals during the voyage, the underwriters would not be liable at all; but where the violence of the wind and waves was only such as to cause some injury to the animals, short of death, then the underwriters would be responsible. For these reasons, I am of opinion that the word mortality, in this policy, must be understood in its ordinary I 2 and 1821.. LAWRENCE against ABERDEIN, |