voluntarily employed him. Therefore he is not responsible, so as to discharge the insurers, for a loss occasioned by a pilot whom he was required by law to take. Nor could he be for the loss caused by the ignorance or negligence of a pilot who was employed voluntarily, if he had exhibited to the master the customary evidence that he was duly commissioned. If, indeed, a master employed an incompetent person as pilot, whom he had no sufficient reason to believe competent, this would be an act of negligence on the part of the master, the effect of which upon the owner or insurers would be determined by the principles above stated.

A very universal rule, coming frequently into application, limits the responsibility of the insurers to extraordinary risks. We have already seen, that the insured always warrants by construction of law, that his ship is able to encounter safely all ordinary risks, for this is precisely what is meant by sea-worthiness; and it amounts to an agreement to warrant the insurers against all ordinary risks.2 And if a vessel be lost or injured and the loss evidently arose from an ordinary peril, as from common weather, or the common force of the waves or winds, the insurers are not liable, for the very reason that the ship is warranted as able to withstand such assaults.3

And even if the peril itself be extraordinary, as stranding, the insurers are answerable only for such consequences of this as are extraordinary; at least, not for such as are invisible, indefinite, and conjectural; such as a straining, unless it is of such a naturę as to cause a direct damage to the vessel. So they are not lia

1 See ante, Vol. I. p. 484-486.

2 Crofts v. Marshall, 7 Car. & P. 597. In Barnewall v. Church, 1 Caines, 217, 234, Mr. Justice Thompson said: "The insurer undertakes only to indemnify against the extraordinary and unforeseen perils of the sea, not against the ordinary perils to which every ship must be exposed in the usual course of the voyage proposed." See also, Coles v. Mar. Ins. Co., 3 Wash. C. C., 159.

3 See post, p. 220, n. 1.

In Sage. Middletown Ins. Co., 1 Conn. 239, 243, the injury complained of by straining, was of such a nature, that it could not be repaired, otherwise than by rebuilding the ship. The Court said: "The allowance of such a claim would open a door for infinite fraud, imposition, and uncertainty, and end in the destruction of all that is valuable in insurance." The question came up, but was not decided, in Peele v. Suffolk Ins. Co., 7 Pick. 254. Parker, C. J., said: "The mode of computation is of a very questionable character. Indeed, we cannot but think there has been a

ble for the effects of time; or of wear and tear. But though an old vessel when injured, may require more repairs than a new one would, yet it has been held, that the insured are entitled to have her put in the same condition she was in before the accident. But this rule must be qualified, and we think should be stated as follows: The underwriters are liable for all damages caused by a peril insured against, which happens to a sea-worthy ship, even though this damage be greater than would have resulted, had the vessel been stronger. The underwriters are not liable for ordinary leakage; but this is sometimes expressly provided for. So should the rule be as to common breakage, or similar deterioration.3 And, if cables, sails, rigging, anchors, boats, or the like, give out and are lost, under ordinary circumstances, without peculiar strain or any known extraordinary risk, the loss will be attributed to wear and tear. In some instances,

straining of the cause, as well as of the vessel, in order to charge the underwriter." See also, the dictum of Putnam, J., in Orrok v. Commonwealth Ins. Co., 21 Pick. 456, 466. In Giles v. Eagle Ins. Co., 2 Met. 140, the vessel was repaired so as to be scaworthy, and afterwards performed her voyages well, and was insured at the same premium, and at the same valuation as before the damage, but the jury allowed for "damage of hogging and strain, $835." It was proved, that the whole body of the vessel was injured, that some of the timbers were lifted, some of her treenails started, and that the injury from the strain or hogging remained after the repairs, and affected not only the beauty but the strength of the vessel, and could not be perfectly repaired, except by rebuilding the vessel. The court held that the plaintiff was entitled to recover. Putnam, J., said: We do not intend to shake the doctrine which we have recognized touching imaginary or theoretical strains. It may be, theoretically speaking, that whenever a ship takes the ground, all her timbers, from the keel to the waterways, must of necessity be in some degree disjointed. But this is not such a case. Here the damage is actual, visible, and tangible. And if this vessel should hereafter take the ground, or encounter extraordinary seas, it is not to be expected that she would stand the shock as well as if her timbers had not been lifted and disjointed."

1 Fisk v. Commercial Ins. Co., 18 La. 77; Coles v. Mar. Ins. Co., 3 Wash. C. C., 159; Dupeyre v. Western M. & F. Ins. Co., 2 Rob. La. 457.

2 Fisk v. Commercial Ins. Co., supra.

Mr. Benecke, Phillips' Ed. 443, says: According to the custom at Lloyd's, the underwriters are liable for breakage and leakage only, if the vessel struck the ground with such violence as to derange her stowage. Whenever a loss for leakage is claimed in such cases, the ordinary leakage to which the article would have been subject, without such an event, ought to be deducted."

4 Thus, where an anchor is lost by the cable being chafed upon a rocky ground, it is not a loss by a peril of the sea. Valin, tit. Ass. art. 29; Benecke on Av. ch. IX., Phillips' Ed. 379. See also, 1 Phillips, Ins. § 1105; Coles v. Marine Ins. Co., 3 Wash. C. C., 159; Dupeyre v. West. Mar. & F. Ins. Co., 2 Rob. La. 457.

the nature of the loss determines this question. If a rope gives way, generally, it would be because it was not strong enough. If timbers are broken, the injury would generally imply extraordinary violence. If the damage or loss fall on the spars, the sheathing, or upper works, or boats, there must always be an inquiry into the circumstances of the case, into the degree of violence which caused the loss, and the manner in which the lost article was secured against injury. Thus, if a boat is lashed on deck, only extreme violence would tear it away. If hung from the davits, at the stern or side, it is easily lost by no uncommon peril, and it may be a question whether it was so secured at that very time, as to be sea-worthy, that is, able to encounter the perils it must be expected to meet. So the indefinite deterioration of the ship by straining, the opening of seams, or buttends, without a storm, or violence, and the like, are not covered by the policy. Another rule, quite as universal, exempts the insurers from all liability for a loss caused by the qualities of the thing lost. Articles of commerce which are subjects of insurance, differ so materially in their liability to decay, that provision is made for this by the memorandum, as we have seen. It is also a rule, that the insurers are liable for no subjectmatter of insurance, which is destroyed by reason of its own inherent defects, or tendencies. But this rule does not apply to tendencies which are called into activity only by a peril insured against. Thus, if hemp insured, burns up or rots from spontaneous ignition or fermentation, it being known that this may happen if the hemp be damp, but not if it be dry, the question would be, whether it was damp or dry when it was put on board. If it were then damp, or if it were then dry but became damp through the fault or defect of the ship, the insurers would not be liable, either for the hemp, or for the ship, if the burning hemp destroyed the ship. But if the hemp were dry when laden, and was afterwards wet by reason of the straining of the ship in a storm, or by the shipping of a sea, or any like peril, then the insurers, whether on the ship or cargo, would be liable.3

1 See supra, p. 214, n. 4.

2 Emerigon, c. 12, § 9, Meredith's Ed. p. 311.

8 In Boyd v. Dubois, 3 Camp. 133, insurance was effected on hemp, on a voyage from London to the coast of Devonshire. On the voyage, a fire broke out in the night,

SECTION II.

OF LOSSES ARISING FROM A PROHIBITED OR CONTRABAND TRADE.

This subject has already been considered in some of its relations. Here we would remark, that insurers are responsible for losses caused by a breach of the laws of foreign countries respecting revenue and trade, unless some express exception is added in their favor, provided they had, in any way, either notice or knowledge, or should have inferred from facts" in their possession, that it was the intention of the insured to engage in such a trade. And even if there be a warranty against prohibited trade, if goods specifically named are known to be prohibited at the port to which the ship is expressly destined, it has been held that the insurers are liable for a loss of the property by a seizure for a disregard of the prohibition.2 It is, however, an

and the greater part of the cargo was consumed. Lord Ellenborough said: "If the hemp was put on board in a state liable to effervesce, and it did effervesce, and generate the fire which consumed it, upon the common principles of insurance law, the insured cannot recover for a loss which he himself has occasioned."

1 See ante, p. 19, n. 1.

2 Seton v. Delaware Ins. Co., 2 Wash. C. C. 175. Insurance was effected on cargo to ports in Cuba and back, declared in a written clause to be on goods and specie, both or either, valued at a certain sum, with the usual printed clause of warranty against any charge or loss on account of any illicit or prohibited trade. Mr. Justice Washington admitted that the printed and written clauses were to be construed so as to give effect to both, but held that as specie would have been included in the general term goods, and as specie was known to be prohibited, the clause meant "we do not know what the goods are, we therefore do not insure them against illicit or prohibited trade, but we do insure the specie.” In a nisi prius case in New York, the decision was put on the ground that the printed clause was controlled by the written. Van Ness, J., said: "There can be no question but that the insurers assume the contraband risk, when contraband articles are set forth and expressly named in the policy. Such specification must be considered as notice to the insurer, and will control the printed clause." Howland v. Comm. Ins. Co., Anthon, N. P. 26. But in Goicoechea v. Louisiana State Ins. Co., 18 Mart. La. 51, the court held that as the printed and written words would stand together, the latter should not control the former, but the insurers should be held only for loss caused by perils of the sea on the voyage, and not for illicit trade, although the cargo was described in the policy as Spanish, and was condemned on that account. And it is clear that where the warranty is in writing, VOL. II.

19

unquestionable rule, that if the policy contains an exception of all risks from contraband, war, or illicit or prohibited trade, and a part of the property insured is exposed to that danger, and a loss accrues therefrom to that part or to the residue, the underwriters are not held, unless there is something in the policy which must be regarded as controlling or limiting that exception.1 If such trade is intended, and no notice, and nothing equivalent to notice, is given to the insurers, they are not responsible for a loss caused by such trade.2 But if without any such intention, there was an actual violation of some foreign law without the knowledge or the default of the owner or his agents, the insurers may be responsible. But the question is one of some difficulty. Thus, if war begins after the policy is made, the insurers are held for any loss caused by violation of any ordinances or rules springing from a state of war, until such notice reaches the insured or his agent, as makes the violation of these rules or ordinances' his default. If there is a loss by capture for a

the underwriters are not liable. Church v. Hubbart, 2 Cranch, 187, 232; Higginson v. Pomeroy, 11 Mass. 104.

1 See post, section 9.

2 Thus in Andrews v. Essex F. & M. Ins. Co., 3 Mason, 6, 17, Mr. Justice Story said: "It is perfectly settled that the underwriters, by the general terms of the policy, are not liable for any loss arising from foreign illicit trade, unless the policy be underwritten with the full knowledge on their part that such was the object of the voyage. This is the general doctrine of foreign maritime writers, and has been recognized in the fullest manner by the common law tribunals." See 2 Valin, lib. 3, tit. 6, art. 49; Richardson v. Maine Ins. Co., 6 Mass. 102; Parker v. Jones, 13 Mass. 173. See also, ante, p. 169, n. 3.

3 Wood v. New England Mar. Ins. Co., 14 Mass. 31. In this case the policy contained the following memorandum: "It is understood the company are not liable for any loss or expense arising from the violation of the existing laws or regulations of any of the belligerent powers restricting neutral commerce." The vessel was captured by a French vessel under the Milan decree, which had not been promulgated at the time the policy was made, on the pretext that the ship had come from a British port, and had been spoken with by British cruisers. It would appear by the language of the court on page thirty-six that the policy contained the usual clause insuring the vessel against arrest and detention, and the only question, therefore, was whether the Milan decree was an existing regulation within the memorandum; and the court held that it was not.

In Archibald v. Mercantile Ins. Co., 3 Pick. 70, and in Parker v. Jones, 13 Mass. 173, it was held that if a voyage is prohibited, and both parties are ignorant of the fact, the insurers are not liable. And in a case where a vessel sailed for a port which was at the time blockaded, both parties being ignorant of the fact, and the master, on