tion by sea damage however great not amounting to 5 per cent and 3 per cent respectively. (2) Unless general. It was held by Lord Mansfield (Wilson v. Smith, 1764),1 that the word unless here means the same as except, and is not to be construed as denoting a condition ; that is to say, the clause means that except general average no loss resulting from sea damage and less than total loss shall be paid, and does not mean that no loss resulting from sea damage and less than total loss shall be paid unless general average occur, in which case partial loss resulting from sea damage shall be paid. In Price v. A1 Small Damage Association, 1889,2 Lord Justice Fry stated that "free of average unless general" is equivalent to "free of particular average,” a term which will be the subject of examination later. (3) Or the ship be stranded. As the underwriter's exemption from claim for anything short of a total loss of certain articles, or of loss of a certain named percentage on others, is removed by the "stranding" of the ship, it becomes of great importance to know what is covered by that word. Lord Ellenborough, in M'Dougle v. Royal Exchange, 1815,3 said that the various decisions given displayed "a curiosity not at all creditable to the law." First, to describe what it is not. It is not a mere striking either of the ground or of anything firmly attached to it, such as piles, wrecks, stones, or rocks. Striking a floating wreck in mid-ocean does not constitute a strand, for it is essential that the object touched be attached to, or be in immediate contact with the bottom. Even remaining for a time in firm contact with a floating wreck does not amount to a strand. It is not a mere touching and grazing along the ground; nor does striking a reef and staggering over it constitute a strand. In describing what is included under the word "stranding" or "strand" some of the text-books use a phrase which expresses in a way what is required, but still is not free from objection; they speak of a vessel not being 2 L. R. 22 Q.B.D. 580. 1 3 Burr. 1550. 3 4 Camp. 283. stranded (within the meaning of the memorandum) unless she settles down on the obstructing object in a quiescent state. Careful examination shows that this is a very exacting definition. It is doubtful whether the vessel need either settle down or be absolutely quiet. But she must remain firm and fast in the sense of not being able to proceed on her course of navigation without perceptible loss of way for an appreciable period of time. Then, if the obstruction causing the loss of way is ground, rock, bottom of some kind, or something in immediate contact with it, like a wreck lying at the bottom of the sea, or loose rocks or stones, or something fixed in it like piles, the vessel is stranded. Provided she cannot get over the obstacle, her not settling down and her not being absolutely quiescent hardly seem sufficient to prevent her being considered "stranded." The stoppage must be perceptible and must last for an appreciable period of time. As Lord Ellenborough put it in Baker v. Towry, 1816:1 "It is not merely touching the ground that constitutes stranding. If the ship touches and runs, that circumstance is not to be regarded; but if she is forced ashore, or driven on a bank and remains for any time on the ground, this is stranding without reference to the degree of damage she may thereby sustain." In the case then before the court the vessel had been fifteen to twenty minutes on the ground. In another case Lord Ellenborough more closely defined his idea of what he meant by "remaining for any time on the ground." In M'Dougle v. Royal Exchange, 1815,2 a vessel coming out of harbour fell over on her beam ends, and after so remaining for one minute and a half floated off and proceeded on her voyage. Lord Ellenborough decided that this was NO stranding. He said: "To use a vulgar phrase, which has been applied to this subject, if it is touch and go with the ship there is no stranding. It cannot be enough that the ship lay for a few moments on her beam ends. Every striking must necessarily produce a retardation of the ship's 1 I Stark 436. 2 4 Camp. 283. motion. If by the force of the elements she is run aground and becomes stationary, it is immaterial whether this be on piles or on rocks or on the seashore, but a mere striking will not do wheresoever that may happen." Later in the same judgment he said: "I take it that stranding in its fair legal sense implies a settling of the ship,1 some resting or interruption of the voyage, so that the ship may pro tempore be considered as wrecked; from which misfortune a great deal of damage does frequently occur." The decisions, therefore, determine that to constitute a strand a stoppage of something between one and a half and fifteen minutes must occur. 66 Baily (Perils, p. 180) suggested that "the centre of gravity of a vessel must be supported by the ground before it can be said that she is stranded." But there does not appear to be anything in the decisions to support this view, and the latest text-book writers characterise it as "perhaps too severe" (Lowndes, Law M. I. p. 197), or as erring on the side of undue stringency" (M'Arthur, Contract, p. 290). If the suggestion of Baily were taken literally, a vessel with stem and stern firmly fixed on two ridges of rock, but with the rest of the keel free, would not be stranded; nor would one holed by a sharp rock at any point except exactly under the centre of gravity, even though the rock held the vessel firm, like a pivot; nor one bilged by a rock to the one or the other side of the keel, even though held firm by the rock. It is enough if the vessel is firm and fast to such an extent that for an appreciable time the course of the vessel's navigation is perceptibly interrupted. For The stranding must be fortuitous, accidental—not part of the customary navigation on the voyage insured. instance, a vessel going up the river to Cork took the ground once for eight hours, and again for ten hours, owing to the shallowness of the water; and after mooring at a quay in Cork harbour she fell when the tide ebbed and lay on her broadside for two whole tides. It appeared from the evidence in the case, that taking the ground in this 1 It is worth noting that Lord Ellenborough does not say settling down of the ship." "a manner was no more than was usual with this class of vessels in the Cork river. This was held not to be a stranding, because it happened in the ordinary course of navigation (Hearne v. Edmunds, 1819).1 So when in a tidal harbour a vessel moored in a proper berth took the ground at ebb tide, as and where it was intended, and damaged herself on some hard substance, it was held that the vessel did not strand, but merely took the ground in the ordinary course of navigation (Kingsford v. Marshall, 1832).2 "Otherwise," said Chief Justice Tindal in his judgment, "at every ebb of the tide there would be a stranding, and the memorandum intended for the security of underwriters against partial losses upon perishable articles would be nugatory." But where the ground is taken intentionally, as when a vessel is beached to prevent her sinking in deep water, this is held to constitute a strand; the reason being that “the ship was laid on the strand not in the ordinary course of navigation, but ex necessitate to avoid an impending danger (Mr. Justice Bayley in Barrow v. Bell, 1825).3 In the case of a vessel which for the safety of the whole venture entered a tidal harbour, forced by stress of weather to take any place of refuge that could be found, and there grounded, it was held by the Court of Queen's Bench that such a grounding constituted a stranding within the memorandum (Corcoran v. Gurney, 1852). As Chief Justice Tindal put it in Kingsford v. Marshall,5 "where the taking of the ground does not happen solely from those natural causes which are necessarily incident to the ordinary course of the navigation in which the ship is engaged, either wholly or in part, but from some accidental or extraneous cause, that is a stranding." It should be noticed that in the case of goods insured in a ship on a policy with the ordinary memorandum, and not containing the lighterage clause, the stranding of a lighter does not produce the same extension of the under writer's liability as the stranding of the ship (Hoffman v. Marshall, 1835).1 Two recent cases are of interest as defining the application of the memorandum more closely. In the Alsace and Lorraine (Blackwood, Bryson, and Company v. British and Foreign Marine Insurance Company, 1893),2 the vessel met with bad weather on her voyage from Calcutta to Demerara, had to jettison part of her cargo of rice-damaging some of the remainder in the operation—and put into Mauritius for repairs. The cargo was discharged, and part of it found to be unfit for reshipment was sold. Before the repairs on the vessel were completed she was driven on the rocks by the great cyclone of April 1892; she remained hard and fast, and was so damaged that she was hopelessly lost. The unsold portion of the cargo was forwarded to destination in the Brazil, which met with bad weather, in consequence of which the rice on board of her was damaged. Claim was made for the amount of this damage on the ground that "the vessel" had stranded. There was no dispute about the facts. The plaintiffs' contention was that if the vessel strands after the shipment of the goods, while the vessel is still under contract to carry the goods, and during the currency of the policy covering the goods, such stranding removes the exception from the memorandum, even though at the time of the stranding the goods were not on board. This view was not accepted by Mr. Justice Barnes, who found for the defendants with costs. Similarly, in Thames and Mersey Marine Insurance Company v. Pitts, Sons, and King, 18933 (an action to recover money overpaid), a vessel loaded cargo at San Nicolas and on her way to Buenos Ayres she stranded. At Buenos Ayres she took more cargo on board, and it was claimed by the cargo-owners that the stranding was a stranding in the sense of the memorandum even as regards the goods shipped thereafter at Buenos Ayres. The judges (Justices Day and Collins) held that the stranding of the 1 2 2 Bing. N.C. 383. A |