It may be added in this connection, although the subjects have been already considered, that no policy will enure to the benefit of a party who cannot be legally insured, as an alien enemy, for example, or will attach to a subject-matter in interest which cannot be legally possessed by the insured, or to a trade which is prohibited by the laws of the country where the insurance is made, or against perils or risks which positive law or the certain policy of the law, excludes from the benefit of indemnity by insurance.

SECTION X.

OF THE MEMORANDUM.

A. Of the Articles Enumerated in the Memorandum. The policies in general use in this country, except from all loss that is not total or a subject for contribution, certain articles, and from all loss by damage that is less than certain proportions, other enumerated articles of cargo (all of these articles being especially liable to damage), and sometimes, the ship and freight. These exceptions were originally introduced in English policies, in a note or memorandum; and still are so, in those policies generally; but in this country, they are usually inserted in the body of the policy, although we still use the phrases, memorandum risks, memorandum articles, and memorandum rates. These vary very much in different States and different offices; and we add, in our appendix, the principal memorandum rates and exceptions, from a very full and accurate note to Section 54, of Phillips on InsurAnd we give also, tables of the peculiar risks and rules

ance.

717. But the lender on bottomry or respondentia must specify his interest, and a general insurance on the ship or cargo is not enough. Glover v. Black, 3 Burr. 1394, 1 W. Bl. 422; Robertson v. United Ins. Co., 2 Johns. Cas. 250; Jennings v. Ins. Co. of Penn., 4 Binn. 244, 251. The owner, however, of a ship, on which a bottomry bond has been given, may insure his interest generally. Kenny v. Clarkson, 1 Johns. 385. So, where a party purchased a vessel, not knowing that a bond had been given upon her, it was held, that he had an insurable interest. Williams v. Smith, 2 Caines, 13.

of insurance respecting fishing voyages, and inland navigation, for the substance of which we are indebted to the same valuable work. We shall also consider the law in relation to this subject more fully, in the subsequent chapter on Abandonment.

Many of the articles enumerated in the memorandum are called by ambiguous names. Thus, "corn "1 means one thing in England, and another in this country; and it is not certain how much this word embraces, there or here. So "furs," "skins," and "hides," are discriminated by a line that is certainly obscure,

1 In England, it has been held that malt, which is corn in a manufactured state, is included in the term corn, in the memorandum. Moody v. Surridge, 2 Esp. 633. So are peas. Mason v. Skurray, Marsh. Ins. 226, Park, Ins. 160. Rice, however, has been held not to come within the meaning of this term. Scott v. Bourdillion, 5 B. & P. 213. The above case of Mason v. Skurray, is cited in Hughes on Ins. 142, 2 Arnould Ins. 853, 2 Phillips, Ins. § 1764, and in Maude & Pollock on Shipping, 235, as deciding that peas and beans are included within the term corn. Mr. Marshall, on p. 223, note, makes mention of this case as follows: "The term, corn, comprehends every sort of grain, and also peas and beans. Vide Mason v. Skurray, inf." On page 226, it is said that the insurance was on a cargo of peas. Mr. Park, on pages 149, and 160, cites the case in the same way as Mr. Marshall, on one page, as an authority that the word corn, includes peas and beans, and on the other, that the insurance was on peas. This case was decided in 1779, and Mr. Weskett, who wrote in 1783, says: “An action was brought against the defendant, to recover a loss on pease damaged very much by sea-water; and determined at Guildhall, Mich. 1799, that pease are to be considered as corn, or grain." Weskett on Ins. 389. Millar, also, who wrote in 1787, mentions peas, only. Millar, Ins. 358. The question is, however, one of not much importance, except in determining the precise point decided by the case alluded to; for pease and beans would doubtless be governed by the same rule, and Mr. Weskett, on page 146, mentions the following articles, as being enumerated in several English statutes relating to corn, namely: "wheat, rye, barley, oats, pease, beans, malt, pearl barley, or other corn, ground or unground, bread, biscuit, meal, and grain." In this country, the word, corn, is generally used in a more limited sense, and its meaning would depend very much upon usage.

2 In Bakewell v. United Ins. Co., 2 Johns. Cas. 246, the word, skins, was held to include deer skins. In Astor v. Union Ins. Co., 7 Cow. 202, the policy contained the clause, "free from average on skins, hides, and other articles, perishable in their nature." At the time the insurance was effected, the invoice of the goods was presented, headed "invoice of furs," and describing the articles as skins of the bear, raccoon, opossum, deer, fine-fisher, cross-fox, martin, white raccoon, wild-cat, wolf, wolverine, panther, and cub skins. There was much evidence gone into, to prove that the term, "skins," was applied when the skin was the chief value, and that "furs," when the fur gave the article its value, and that furs were not perishable articles. A verdict being given for the plaintiff, the court refused to set it aside.

if not arbitrary. And "salt,"1" roots," and "fruit," have given rise to similar questions. We state in our notes, all the decisions which bear upon this subject. If one species of an article is mentioned, this may exclude another. In regard to what articles are considered as perishable in their own nature, it would depend very much on the usage of the trade.5

B. Of the Clause respecting Stranding.

As the memorandum articles are all of them of a perishable nature, and especially liable to a partial deterioration, insurers desired, many years since, to protect themselves from liability for injury to them, unless it was certain that this was not caused by inherent defect or decay. For this purpose, it was provided that the memorandum articles should be "free from average, unless general, or the ship be stranded."6

The original intention of this provision cannot be doubted. It was, that the insurers should not be held for any partial loss on these perishable articles, unless this was caused by a peril of

1 Saltpetre has been held not to be included in the term "salt." Journu . Bourdieu, Marsh. Ins. 224, note, Park, Ins. 149.

2 Coit v. Commercial Ins. Co., 7 Johns. 385, where a usage being shown, that sarsaparilla is not considered a perishable article, it was held, not to come within the term "roots." This word was considered by the experts to mean beets, onions, etc. 3 In De Pau v. Jones, 1 Brev. 437, dried prunes were held to be "fruit." The voyage was from Bordeaux to Charleston. Oranges also come within this term. Humphreys v. Union Ins. Co., 3 Mason, 429.

* Baker v. Ludlow, 2 Johns. Cas. 289, where the mention of "dry fish,” was held to exclude "pickled fish."

5 In Nelson v. La. Ins. Co., 17 Mart. La. 289, parol evidence was admitted to show whether flour was an article perishable in its nature. In Robinson v. Commonwealth Ins. Co., 3 Sumner, 220, and Williams v. Cole, 16 Maine, 207, potatoes were held to be perishable articles. In Baker v. Ludlow, 2 Johns. Cas. 289, the court said: "The subsequent words, 'all other articles perishable,' etc., are not applicable to the articles previously enumerated, nor can they repel the implication arising from the enumeration of them."

The memorandum clause was inserted in English policies in 1749, but the clause relative to stranding was struck out a few years afterwards, in the policies of the London Assurance, and the Royal Exchange Assurance Companies. See Stevens & Benecke on Average, Phillips' Ed. 395. The London Assurance Company has since reinserted it, and the Royal Exchange Assurance Company have modified the clause, so that it reads: "free from all average, etc., unless general, or otherwise specially agreed." 2 Arnould, Ins. 852.

such a nature, as to exclude all probability that the loss was due to the nature of the goods. Such a loss it was intended to designate by the word "stranding;" and we may suppose the word to have been equivalent in the minds of those who first used it, to "wreck."

It seems certain that the insurers intended to say, that they should not be liable for a partial loss on these goods, unless the ship was stranded or wrecked, and the goods thereby injured. The courts did not, however, incline to this view, but adopted the more literal construction and interpretation of the phrase, and a meaning was given to it, which was far from that originally intended.

Thus, it seems now to be settled, that the phrase is to be read, as if it ran thus: "goods to be free, etc., unless the ship be stranded." And then this stranding is to be regarded as a condition, and if it takes place, the whole effect of the provision is exhausted, and the insurers are liable, if there once be a stranding, for any partial loss, in the same manner as if this provision had no existence. The reason given for this is, that in case of stranding and partial loss, it would be impossible, or very difficult at least, to say how much of the injury to the goods arose from their own perishableness, and how much from the stranding. This construction is now well settled; but we do not think that it rests on good grounds.1

1 The first case after the clause was introduced, was in 1754, before Lord Chief Justice Ryder, Cantillon v. London Ass. Co., cited 3 Burr. 1553, where it is said the court "and a special jury looked upon this as a condition, and that by the ship's being stranded the insurer was let in to claim his whole partial average loss." In 1764, the question arose whether the exception, "free from average, unless general," let in a partial loss, where there was also a general average. Lord Mansfield said: "The insurer is liable to all losses arising from the ship being stranded, and in all cases where there is a general average; but all other partial losses are excluded by the express terms of the policy." Wilson v. Smith, 3 Burr. 1550.

The same reason would seem to apply here, as in the case of stranding, and the fact, that the insured was permitted to recover only the damage sustained by the general average, which ruling has not been controverted to this day, shows, we think conclusively, that the intention was to exclude all partial loss, except that sustained in consequence of a general average, and by stranding.

In 1790, came the nisi prius case of Bowring v. Elmslie, 7 T. R. 216, n., before Lord Kenyon, C. J. The insurance was on fish. Lord Kenyon charged that "the stranding of the ship, put the fish in the same condition as any other commodity not mentioned in the memorandum, and the underwriters were liable for all damage sustained by it; for

So, it is settled, that if there be a stranding, the insurers are liable, although the partial loss took place at a different time, from a different cause, and at a different place. Such, at least, is the law in England;1 but some question exists, whether in this country, a construction would not be given to this clause, upon this point, more in harmony with the intention of those who originally used it. In this country, the question is not of so much importance, because the policies either provide that the loss shall happen by the stranding, or the clause in regard to stranding is struck out altogether. And in England, if the stranding take place after the memorandum articles have ceased to be at risk, and the adventure as to them has terminated, it is not a "stranding," within the policy.2

The phrase, "or the ship be stranded," is construed so far

otherwise, there would be very considerable difficulty in ascertaining how much of the loss arose by the perils insured against, and how much by the perishable nature of the commodity, which was the very thing the memorandum was intended to prevent." The defence in this case was two-fold: 1st. That the ship had been fraudulently stranded; 2d. That the damage to the fish was not occasioned by the stranding. The jury found for the defendant, on the ground, that the stranding was fraudulent.

The next case, in point of time, is Nesbitt v. Lushington, 4 T. R. 783, decided in 1792, where a mob came on board the vessel, and weighed anchor, upon which the vessel drove upon a reef of rocks and was stranded. The mob compelled the captain to sell all the cargo at a price less than its value, except about ten tons, which was damaged by the stranding, and was thrown overboard. It was held, that the insured could only recover for this portion, which was injured by the stranding. In Burnett v. Kensington, 1 Esp. 416, 7 T. R. 210, the vessel struck on a rock, but did not remain there, although several of her planks were started and water entered and damaged the cargo. She was afterwards voluntarily stranded by the captain, under the directions of a pilot, in order to save both ship and cargo. The ship sustained no damage from the stranding, and afterwards pursued her voyage with the greater part of the cargo. After several trials, the jury found that the ship was stranded, but that the damage did not arise in any way from it, and a verdict was found for the defendant. But the court held, that if the ship was stranded, this destroyed the exception and let in the general words of the policy. Lord Kenyon, speaking of Bowring v. Elmslie, and Nesbitt v. Lushington, said: "My two opinions that have been referred to, the one in the nisi prius case, and the other in Nesbitt v. Lushington, have no weight with me as judicial authorities, though I confess I have not been able to extricate my mind from the reasoning that led me to the conclusion in those cases."

1 See 2 Arnould, Ins. 858.

2 Roux v. Salvador, 1 Bing. N. C. 526. In this case, the goods were sold at an intermediate port, and the ship was afterwards stranded before reaching her port of destination. Held, that if there was not a total loss at the intermediate port, the subsequent stranding would not let in a claim for a partial loss. This case was afterwards reversed, but this position was not controverted. 3 Bing. N. C. 266.