pretended violation of a blockade which did not actually take place, and the capture is therefore illegal, it would seem that the insurers should not be discharged.1

SECTION III.

OF THE MEANING AND EXTENT OF PERILS OF THE SEA.

A. Of Perils generally.

Those usually enumerated in American policies, are perils of the sea, fire, barratry, theft, piracy, capture, arrests, and detentions.2 The general clause "all other perils" is usually restricted

learning it, discontinued his voyage and sailed for home, but was captured on the way, it was held that the underwriters were only liable for losses by perils insured against up to the time of the discontinuance of the voyage. Richardson v. Maine Ins. Co., 6 Mass. 102. In Andrews v. Essex F. & M. Ins. Co., 3 Mason, 6, 18, the port of destination was restricted from foreign trade, but it was believed by both parties that the trade would be lawful before the vessel arrived. In point of fact, the port was not open and the vessel was seized. It was argued that the underwriters, having insured the voyage to the port of destination, must be presumed to warrant an entry into the port for the purpose of inquiry. But Mr. Justice Story said: "The true principle seems to me to be this, that the policy guarantees an indemnity in going to the port against all losses by the perils insured against; and unless the peril of illicit entry at the port be contemplated as one of the risks insured against, the underwriters are not held." See also, in respect to the question whether a denial of entry at the port of destination is a risk within the common policy, post, section 7.

1 Sawyer v. Maine F. & M. Ins. Co., 12 Mass. 291.

2 The common clause in the English policies enumerating the perils is as follows: "Touching the adventures and perils which we, the assurers, are content to bear, and do take upon us in this voyage, they are of the seas, men-of-war, fire, enemies, pirates, rovers, thieves, jettisons, letters of mart and countermart, surprisals, takings at sea, arrests, restraints and detainments of all kings, princes, and people, of what nation, quality or condition soever, barratry of the masters and mariners, and of all other perils, losses, or misfortunes, that have or shall come to the hurt, detriment, or damage of the said goods and merchandises and ship," etc. Vaucher's Guide, Mar. Ins. 88; 2 Arnould, Ins. 792. This clause has been modified in form in most of the American policies, and some changes have been made in the substance.

The perils usually enumerated in the Boston policies are, "of the seas, fire, enemies, pirates, assailing thieves, restraints and detainments of all kings, princes, or people, of what nation or quality soever, barratry of the master, unless the insured be owner of the vessel, and of mariners, and all other losses and misfortunes, which have, or shall come to the damage of the said or any part thereof, to which

in its extent and operation by the enumerations of the perils in the policy, and embraces only other perils of the like kind. The phrase, perils of the seas, covers all losses or damage which arise from the extraordinary action of the wind and sea,1 and from all inevitable accidents directly connected with navigation, excepting those provided for in other parts of the policy, as capture and the like. But the destruction of a ship by worms is not a "peril of the sea," because it is not an extraordinary circumstance. In certain waters, and at certain seasons, it is a natural result of causes always in operation, which are to be expected, and may be perfectly prevented by adequate precautions; and it may be likened to a loss by wear and tear. And so, if loss or damage be caused by rats or other vermin, it would seem that the insurer would not be liable unless the owner or the master had done all that could be done by any reasonable exertions or means to extirpate them, and without success.*

insurers are liable by the rules and customs of insurance in Boston." And they are substantially the same in our other commercial cities.

1 What are ordinary, and what extraordinary perils, is a question of much difficulty. In Magnus v. Buttemer, 11 C. B. 876, 9 Eng. L. &. Eq. 461, a vessel in the ordinary course of her voyage, moored in a tide harbor, and took ground when the tide fell. In consequence of this she was hogged and strained all over. It was held that the underwriters were not liable. In Potter v. Suffolk Ins. Co., 2 Sumner, 197, under very similar circumstances, Mr. Justice Story held, that unless there was inherent weakness in the vessel, such damage could only be occasioned by an unusual and extraordinary accident in grounding upon the ebbing of the tide, which would be a peril of the sea. And in Bullard v. Roger Williams Ins. Co., 1 Curtis, C. C. 148, Mr. Justice Curtis held that, although the law required vessels to be sufficiently strong to resist the ordinary action of the sea in the voyages for which they might be insured, yet that the ordinary action of the wind and sea did not mean the winds and sea to be ordinarily met in the voyage insured. He accordingly held that heavy cross seas were not the ordinary action of the sea within the meaning of this rule, however common they might be in the voyage insured. And in Washington Mut. Ins. Co. v. Reed, 20 Ohio, 199, underwriters on whiskey on board a flat boat were held liable for a loss occasioned by the swell of a steamboat, although the steamboat and the swell were of ordinary size and of constant occurrence.

2 Schieffelin v. New York Ins. Co., 9 Johns. 21.

3 Rohl v. Parr, 1 Esp. 445; Martin v. Salem Mar. Ins. Co., 2 Mass. 420; Hazard v. New England Mar. Ins. Co., 1 Sumner, 218, 8 Pet. 557.

* In Hunter v. Potts, 4 Camp. 203, goods were insured on a voyage from London to Honduras with leave to touch at Antigua. While at the last-named port, the timbers of the vessel were so damaged by rats that a survey was called, and the vessel condemned. Lord Ellenborough held that the underwriters were not liable. Chancellor Kent, 3 Comm. p. 300, says: "The better opinion would seem to be, that an insurer

If goods are damaged by actual contact with sea-water, the underwriters are certainly liable,1 and it has been held that if part of the cargo is damaged by sea-water, and the vapor and gases arising from it injure another portion of the cargo which is insured, the underwriters on this latter portion are liable, although it was not immediately in contact with the sea-water.?

is not liable for this sort of damage, because it arises from the negligence of the common carrier, and it may be prevented by due care, and is within the control of human prudence and sagacity." But in Garrigues v. Coxe, 1 Binn. 592, a leak occasioned by rats, without the neglect of the captain, was held to be a peril within the policy.

In Dale v. Hall, 1 Wilson, 281, a common carrier was held liable for damage done to goods by rats gnawing a hole in the vessel. So in another case where the rats gnawed the goods. Aymar v. Astor, 6 Cow. 266. In a similar case in England, Laveroni v. Drury, 8 Exch. 166, 16 Eng. L. & Eq. 510, where a cargo of cheese was damaged by rats, the defence was set up that the captain had two cats on board. This would have been sufficient to exonerate the carrier according to the maritime law. Consolato del Mare, c. 65, 66; Casaregis, disc. 23, n. 73; Roccus, n. 58; Emerigon, c. 12, s. 4, § 7, Meredith's Ed. 302. But the court held that the carrier was liable, on the ground that damage done to goods by rats was not a peril of the seas, it being a kind of destruction not peculiar to the sea or navigation, or arising directly from it, but one to which such a commodity as cheese is equally liable in a warehouse on land as in a ship at sea." The court said: "We further are very strongly inclined to believe that in the present mode of stowing cargoes, cats would offer a very slight protection, if any, against rats. It is difficult to understand how, in a full ship, a cat could get at a rat in the hold at all, or at least with the slightest chance of catching it."

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But the question still remains, whether the underwriter would not be liable in case the rats should eat a hole in the ship, and water should enter and damage the cargo. In Laveroni v. Drury, supra, Pollock, C. B., said such a case might very likely be one of sea damage. And Alderson, B., added: “Our judgment does not touch that question. A rat making a hole in a ship, may be the same thing as if a sailor made one." On the authority of the recent cases in this country, we should consider the insurers liable in such a case, even if the rats remained on board through the negligence of the master, on the ground that the damage by water was the proximate cause of the loss, but should not hold them liable if the goods were gnawed by the rats, that not being a peril peculiar to the sea.

1 Baker v. Manuf. Ins. Co., Sup. Jud. Ct., Mass., March T. 1858, 14 Law Reporter, 203; Cogswell v. Ocean Ins. Co., 18 La. 84.

2 Montoya v. London Ass. Co., 6 Exch. 451, 4 Eng. L. & Eq. 500. See also, Rankin e. Am. Ins. Co. of N. Y., 1 Hall, 619. But in Baker v. Manuf. Ins. Co., Sup. Jud. Ct., Mass., March T. 1851, 14 Law Reporter, 203, it was held that the underwriters were only liable for the damage done to those goods with which the sea-water came into actual contact, although the plaintiff offered to prove that the injury was not caused by the usual dampness in a vessel's hold, but by the steam and moisture arising from goods damaged by an unusual quantity of water entering the hold in consequence of a peril of the seas. We have examined the policy in this case, and find that it did not contain the clause, now common in Boston policies, which exempts the

Damage caused by a vessel's grounding or stranding is a loss by a peril of the seas within the policy, provided it does not happen in the usual course of navigation, as where a vessel is destined to a tide harbor, where she expects to take the ground when the tide ebbs. And in such a case, if there be a heavy swell, which causes the injury, the underwriters are liable. It is sometimes necessary, to heave a ship down, and if she is injured while this is being done, there seems to be no good reason why it should not be considered as having happened by a peril of the sea, but it has been decided otherwise.3 Such a damage would, however, be included within the general clause.*

underwriters from loss of this kind, and which is as follows: "It is further agreed that the insurers shall not be liable for damage or injury to goods by dampness, rust, change of flavor, or by being spotted, discolored, or mouldy, unless the same shall be caused by actual cóntact of sea-water with the articles so damaged." In a case where the policy contained this clause, it was held that the burden was on the assured to show that the damage was caused by actual contact with sea-water. Leftwitch v. St. Louis Perpet. Ins. Co., 5 La. Ann. 706.

1 See the cases of Magnus v. Buttemer, 11 C. B. 876, 9 Eng. L. & Eq. 461; and Potter v. Suffolk Ins. Co., 2 Sumner, 197, cited ante, p. 220, n. 1. In Fireman's Ins. Co. v. Powell, 13 B. Mon. 311, the policy did not expressly insure against loss or injury from grounding, but provided that the assured were not to abandon, as for a total loss, on account of the steamboat's grounding or being otherwise detained. It was held that, as grounding was one of the perils to which steamboats were liable, and as it was not specially excepted, it was included in the policy.

2 Fletcher v. Inglis, 2 B. & Ald. 315. This case was distinguished from that of Magnus v. Buttemer, supra, on the ground that the damage was not caused solely by the ship's taking ground in the usual course of her navigation, but by a heavy swell.

8 Rowcroft v. Dunsmore, before Lord Kenyon, C. J., cited in Thompson v. Whitmore, 3 Taunt. 227, as follows: "The ship was hove down, and while heaving down, she could not bear the strain: she was drawn on the land, where she bilged; and the question was made, whether, it being necessary to perform this operation on her, this damage was occasioned by a peril of the sea. Lord Kenyon thought it was not a loss by a peril of the sea, but an accident that happened." In Thompson v. Whitmore, 3 Taunt. 227, the vessel had been placed on the beach to be cleaned and calked, in a situation where vessels of the same size had been placed for repairs, and had remained in safety. The vessel lay one day in safety, but the next day when the tide rose she was found to be full of water, and the planks of the side on which she lay, and some of her foot hooks were broken. "Mansfield, C. J., thought, that although the tides knocked away the shoars which supported the vessel, and thereby occasioned the mischief, yet, as the damage happened upon the land, it could not be considered as a loss sustained by the perils of the sea." This opinion was held to be

4 Ellery v. New England Mar. Ins. Co., 8 Pick. 14; Phillips v. Barber, 5 B. & Ald.

If a ship be not heard from, after a reasonable time it will be presumed that she has perished; and in the absence of all evidence or opposing circumstances, the presumption of law will be that she has perished by reason of some peril of the sea; for in point of fact this presumption will be probable and reasonable. But the length of time which must elapse before this presumption arises, must depend upon the peculiar circumstances of each case

The voyage of the ship may be greatly lengthened and her return to port delayed by circumstances which will give rise to the question, whether the insurers are liable for the loss and expense thence arising. From the adjudications of this country, it would seem, that if a vessel goes out of her intended course in fact, and in good faith, for the purpose of refitting herself, and repairing damages which have arisen from a peril insured against, she

correct by the full court. See also, Phillips v. Barber, 5 B. & Ald. 161, in which case the court held that where a vessel was in a graving dock being repaired, in which there were two or three feet of water, and, while there, was, by the violence of the wind and weather, blown over and bilged, this was not a loss by the perils of the

seas.

1 Gordon v. Bowne, 2 Johns. 150; Brown v. Neilson, 1 Caines, 525. In this case a vessel insured on a time policy, twenty-four days before the expiration of the risk, set sail from Norfolk in Virginia, bound to New York, and was never heard from. The usual passage was from five to seven days, though there was evidence of one case where a vessel arrived safe after a voyage of forty days, and another of a voyage of sixty days. The court held that there was no time fixed by law after which a missing vessel should be presumed to be lost, and that it would not be reasonable to calculate on the utmost or greatest limit. See also, Patterson v. Black, 2 Marsh. Ins. 781; Watson v. King, 1 Stark. 121; Houstman v. Thornton, Holt, N. P. 242. The plaintiff must prove that when the vessel left the port of outfit she sailed on the voyage insured, and the convoy bond, executed at the custom-house, in which the port of destination is mentioned, is primâ facie evidence of this fact. Cohen v. Hinckley, 2 Camp. 51. When a vessel sails for a foreign port, it is not necessary to prove that she never arrived there, by witnesses from that port. Twemlow v. Oswin, 2 Camp. 85. Where goods are insured by a certain ship, and it is proved that she sailed on the voyage insured, and never arrived, and one of the plaintiff's witnesses testified that three or four days after the vessel sailed he had heard that she had foundered at sea, but that the crew were saved, it was held not to be incumbent on the plaintiff to call some of the crew, or to show that he had ineffectually endeavored to procure their attendance. Koster v. Reed, 6 B. & C. 19. So, if the ship is warranted free from capture and seizure, it is not incumbent on the plaintiff to prove that the loss did not happen by these perils, if the vessel has never been heard from, although the loss in the declaration is said to be by foundering at sea. Green v. Brown, 2 Stra. 1199. See also, Newby v. Read, Park, Ins. 85.