vessel did not affect any cargo except such as was on board when it occurred.

Consequently it may be taken as settled that to constitute a stranding in the sense of the memorandum the interest insured must be in one common adventure with the ship at the time when the ship takes the ground.

Within five years after the addition of the memorandum to the policy the courts were called upon to decide whether in a case of strand the underwriter was obliged to pay his pro rata share for all the damage which the goods sustained during the voyage, or only for what was occasioned by the stranding. Upon a policy on corn (Cantillon v. London Assurance, 1754),1 it was held by Sir Dudley Ryder that the stranding entitles the assured to claim the whole loss occurring on the voyage. One consequence of this decision was that the London Assurance and the Royal Exchange Assurance struck the words "or the ship be stranded" out of their policies. There was some wavering on the part of the courts in later cases, but it was finally settled by Lord Kenyon's decision in Burnett v. Kensington, 1797,2 that "if a ship be stranded and the cargo suffer no damage whatever, and afterwards the vessel meet with bad weather and the cargo sustains an average loss, say of 90 per cent, the underwriters are answerable for the whole of that average loss."

On a somewhat similar principle it has been decided that to constitute a percentage claim on goods named in the second and third classes in the memorandum, it is not necessary that the damage making up the full percentage must all happen on one occasion or from one kind of casualty. It is enough if it occurs in the course of the voyage insured, and results from perils insured against. But the stipulated percentage must consist entirely of actual damage sustained by the goods insured; it cannot be composed partly of such damage and partly of such other items as general average, or of particular charges, or of expenses

1 Cited 3 Burr. 1553.

27 T.R. 210.

incurred in proving the claim (cf. Kidston v. Empire Marine, 1866).1

It was mentioned above (p. 172) that words have been added to the memorandum extending the liability of the underwriter. In the case of the Glenlivet (Admiralty, March 1893),2 Mr. Justice Barnes stated that for about the last thirty years the words "sunk or burnt" have generally been added to the memorandum.

As stranding designates accidental resting of the ship's side or bottom on the ground in such a way as to make her innavigable and to damage her, so sinking must mean such accidental deepening of the ship's draft as will permit water to pour into her by the hatches, or other proper openings in her, and bring her down beneath water level. The only English case on sinking is Bryant and May v. London Assurance, 1886 (in Queen's Bench before Mr. Justice Grove and a special jury),3 in the matter of a cargo of match splints per B. C. Boyesen from Quebec to London. On the vessel's arrival at Gravesend the water was over the deck as far aft as the mainmast, abaft the mainmast it was dry; the captain's cabin and hurricane deck were dry. The cargo was very much wetted, but part of it was delivered dry. The plaintiffs contended that this constituted a sinking within the meaning of the memorandum, saying that the vessel had sunk as far as a vessel with a timber cargo could sink. But both of their witnesses admitted that had the cargo become more saturated with water the ship would have sunk further. The case was decided in favour of the defendants. But if a sinking were to be of such a character that, to use the words of Lord Ellenborough in M'Dougle v. Royal Exchange, 1815,4 “the ship may pro tempore be considered as wrecked," such a disaster would certainly remove the exception laid down in the memorandum.

In the case of burning another difficulty arises. If the

1 L. R. I C.P. 535; 2 C.P. 357.

2 9 Times Law Rep. 360; decisions affirmed by Court of Appeal, 10 Times Law Rep. 97, but Mr. Justice Barnes's reasons disapproved. 4 4 Camp. 283.

3

2 Times Law Rep. 591.

property insured is a cargo of flour, and if this interest takes fire and is burnt without the ship being damaged by the fire, the exception has not been taken out of the memorandum, and the underwriter remains free of claim for partial loss or damage of the flour. It is the ship that must be burnt, say a beam scorched, a floor charred, a ceiling burnt. Consequently the destruction of a cabin by fire removes the exception, while a fire in the cargo itself does not. Such was the view acted upon almost universally until quite lately. But a recent decision of Mr. Justice Barnes (the Glenlivet, 1893),1 has raised a new point. As it was decided by Lord Ellenborough that a mere touching of the ground was not sufficient to make a strand, so it is now decided in the Glenlivet case that a mere burning is not sufficient to take the exception out of the memorandum; it must be such a burning as to constitute a substantial burning of the ship as a whole. The judgment in the Glenlivet has excited considerable attention, as it takes away on principle what was long granted without question. But indeed it is not easy to see why a fire in a ship's cabin should be enough to establish a claim for damage to cargo arising from some other peril barred by the memorandum, when a touch-and-go graze on a rock, even if actually causing damage, is not enough. Since the issue of the decision some slips have had the words "on fire" added to "burnt," confessedly in the hope and expectation of thus restoring to the assured what has been taken from him by the decision.2

In consequence of the great increase in the number of 1 9 Times L. R. 360; 10 Times L. R. 97.

"

2 But will not exactly the same principle that was applied in the interpretation of burnt" be applied to that of "on fire?" For it is not a question of the extent of the effect of ignition; if ignition results in the total loss of the property insured, then the loss is claimable as a total loss and not under the memorandum or any other clause referring to partial loss; if it does not result in a total loss, then, as far as the memorandum is concerned, is it not all the same whether you say 'burnt" or " on fire" so long as the principle of "substantial burning of the ship as a whole" is applicable? This is the principle stated by Lord-Justice Lindley in the Glenlivet decision, Court of Appeal, 1894, I Q.B.D. 48.

collisions occurring at sea since the introduction of navigation by steam, it has lately become customary to add to the memorandum in policies the words, "or the damage be caused by collision," occasionally supplemented by the words, "with another ship or vessel." 1 There are various forms of the addition, but the one just given is the most equitable between assured and underwriter, and the least likely to lead to results disappointing to either party. The form "or in collision" is open to the objection that the mere fact of the carrying vessel being in collision would remove the exception from the memorandum, and that the policy would then be liable for the payment of damage arising from some other peril barred by the memorandum.

The form "or the damage be caused by collision" suggests the true middle course open to assured and underwriters in the matter of stranding and burning. As matters are at present, the assured feels the hardship of not being able to recover the amount of damage done by fire to and in his cargo unless the fabric of the ship has been burnt; the underwriter feels the hardship of being legally obliged to pay for sea damage to cargo which has not resulted from any serious peril, but is claimed on the ground of a merely technical strand. Why not solve both difficulties by making the memorandum read, "unless caused by stranding, sinking, burning, or collision with another ship or vessel" ?

The preceding remarks bear more particularly on the relation of the memorandum to goods, the bearings of the memorandum on ship and freight will be examined later.

It is of interest to note that the American form of policy follows the English in adopting the plan of making a memorandum deal with the particular average liabilities of the underwriter on some interests. The text of the policy provides that "no partial loss or particular average shall in

1 Lord Coleridge in Richardson v. Burrows, 1880, gave it as his opinion that in the memorandum collision means "collision with another ship" (Lowndes, Law M. I. p. 199). Compare Mr. Justice Barnes in the Munroe Prob. Div. 1893, p. 248, and Mr. Justice Mathew in Kirkmichael and Osseo (Union M. I. Co. v. Borwick, Q. B. 20th June 1895), 11 Times L.R. 465.

any case be paid unless amounting to 5 per cent." Then follows the memorandum :—

Memorandum. It is also agreed that bar, bundle, rod, hoop, and sheet-iron, wire of all kinds, tin plates, steel, madder, sumac, wickerware and willow (manufactured or otherwise), salt, grain of all kinds, tobacco, Indian meal, fruits (whether preserved or otherwise), cheese, dry fish, hay, vegetables and roots, rags, hempen yarn, bags, cotton bagging, and other articles used for bags and bagging; pleasure carriages, household furniture, skins and hides, musical instruments, looking-glasses, and all other articles that are perishable in their own nature, are warranted by the assured free from average, unless general; hemp, tobacco stems, matting, and cassia, except in boxes, free from average under 20 per cent, unless general; and sugar, flax, flax seed, and bread are warranted by the assured free from average under 7 per cent, unless general; and coffee in bags or bulk, pepper in bags or bulk, and rice, free from average under 10 per cent, unless general.

WARRANTED by the insured free from damage or injury from dampness, change of flavour, or being spotted, discoloured, musty, or mouldy, except caused by actual contact of sea water with the articles damaged, occasioned by sea perils. Not liable for leakage of molasses or other liquids unless occasioned by stranding or collision with another vessel.

This is very stringent, far more closely binding than anything ever introduced into the English policy for general use; and the occurrence of even an important casualty to the vessel carrying the goods does not subject the underwriter to any liability unless the damage amounts to the stipulated percentage, or unless, in the case of leakage, it is actually occasioned by stranding or collision. The absolute exclusion of such damage as gave rise to the case Montoya v. London Assurance, 18511 (see p. 97) is stated in extremely strong language; mere contact with sea water is not enough to constitute a claim, the contact must have been occasioned by sea perils.

THE FREE OF PARTICULAR AVERAGE CLAUSE After 1749 the course of insurance business showed that the memorandum afforded only a moderate protection to underwriters on goods. As was remarked above (p. 173) the paucity of the articles named is striking. The meagre16 Exch. 451.