PEREZ

ľ.

ALSOP.

1862.

[190]

[191]

only conditional. It appears that the brokers had only the ordinary authority to receive freight, and had no special authority.

If it was only conditional or provisional, then the defendant had all his original rights, and so is not liable. The first question then comes to this, whether the agreement was provisional and partial, or was to operate as a general and total release of the goods on payment only of a part of the freight.

The jury found that the agreement was partial only, and returned a Verdict for the defendant.

HARRISON v. UNIVERSAL MARINE INSURANCE

COMPANY.

(3 F. & F. 190-196.)

In the absence of any custom, underwriters are liable for injury to a ship's bottom, caused not by the ordinary action of the winds and waves, but by their violent action in a storm; and it is doubtfu whether evidence of a custom that they are not to be liable for injuries to the bottom or below the water-line, unless caused by striking against the ground, or some foreign substance other than water, is admissible to control the construction of the policy. Semble, that it is not. ACTION on a policy of insurance, dated the 2nd July, 1860, for 2,000l. on the ship Kensington, valued at 10,000l., claiming for an average loss, by perils of the seas, 177. 16s. 8d. per cent. Plea: payment of 1207., and payment into Court of 1407., at the rate of 70s. per cent.

M. Smith, Q.C., Karslake, Q.C., and Horace Lloyd, for the plaintiff.

Lush, Q.C., Brett, Q.C., and Honyman for the defendants. On the 2nd July, 1860, the policy was entered into, the ship being then on her return from Calcutta. There was evidence that in the course of the voyage to the Cape the ship had strained in stormy weather.

On the 11th July there was a heavy storm, in which the ship was severely strained.

On the 30th July the ship put into Rio, labouring under a leak.

The ship remained there until October, for the purpose of repairs, and several surveys took place, to ascertain what were necessary. For that purpose it was necessary to have the ship "hove down," and it was found that the copper sheathing beneath the water-line was damaged, and required to be removed and replaced, in order to get at and stop the leak.

The necessary repairs were done, and the ship sailed on her voyage home.

The ship had not struck on the ground, or against a rock, or any external substance.

In February, 1861, the ship reached London, and was surveyed.

In the statement of the average loss the underwriters objected to items for the expense of heaving down and repairing the leak, on the ground that it was not usual to pay for damage to a ship beneath the water-line, as such damage could not be caused by violence of the winds and waves, and so was not chargeable to perils of the seas, unless where caused by striking against the ground or some external or foreign substance.

Brett opened a case for the defence, founded on such a supposed custom.

M. Smith objected to the admissibility of the evidence, as it was adduced to alter or affect the policy.

MELLOR, J., admitted the evidence, as it had been admitted by COLERIDGE, J., in the case of a ship called the Pemberton (1); but he admitted it, subject to leave to move, and said the usage must be shown to be so general as that it must be taken to be known and submitted to by the insured.

Witnesses, chiefly average staters, or consulting average staters, were called to prove the supposed custom.

The question put was, "Is there a general practice, in settling claims for particular average, as to allowing or disallowing items of damage done beneath the water-line when the ship has not been in contact with the ground or some foreign and external substance, other than the sea?"

The witnesses said the custom was not to allow for such damages, and in particular not to allow for injury to copper sheathing, which was always below the water level; and they said this custom had existed ever since copper sheathing had been used-more than fifty years.

When pressed as to the case of a ship cast on her beam ends, so as to leave part of her bottom exposed, and then struck by a heavy sea thereon, so as to shake and strain her and loosen her sheathing, and thus cause a leak, they *could give no satisfactory reason why this should not be deemed a loss by perils of the seas, although an injury caused by the very same sea above the water-line would be deemed so.

And the evidence for the plaintiff went to show that a heavy sea striking a ship above would strain her down to her bottom,

(1) A case cited from the MS. shorthand notes, in the possession of the attornies Walton and Bubb.

HARRISON

v.

UNIVERSAL

MARINE INSURANCE COMPANY.

[192]

[*193]

HARRISON

v.

UNIVERSAL
MARINE
INSURANCE
COMPANY.

[ *194 ]

and loosen and weaken her throughout her whole structure, and so cause a leak beneath the water-line.

The witnesses said that where there was no copper sheathing the same rule applied as to injuries to the ship's bottom if beneath the water, but that as to copper-sheathed ships, the test was whether the injury was on the sheathing, which was always beneath the water.

They admitted, however, that the alleged custom had often been disputed, and that the claims were then compromised; and it had never been litigated except in the case of the ship Pemberton, tried at Liverpool, and that there the jury found against the supposed custom; and also in the case of Philips v. Irving, tried at Guildhall in 1849, where there was a similar result. They could give no reason for the usage, but a theory that the winds and waves could not act on the bottom of a ship, so as to injure it seriously beneath the water.

M. Smith, in cross-examining the witnesses for the defendants as to the alleged custom, was allowed to read passages from works of various mercantile writers on Average, to a contrary effect; but

Brett was not allowed to put into the hands of his witnesses passages from such works in support of the supposed custom. MELLOR, J., pointed out the differences in this respect between examination in chief and cross-examination.

Among the works thus cited. were Bailey on Average; *Stephenson on Average; Benecke on Average; and Hopkins on Average.

Hopkins, an average stater, was called for the defendants to prove the supposed custom, and referred to and adopted a passage in his book as stating his evidence on the subject (1). (This passage was relied on by both sides.)

All the witnesses for the defendants admitted that the alleged custom was often disputed.

One of them contradicted the others as to its effect.

Several of them admitted that they had allowed items claimed for damage coming within the supposed custom; but these instances they accounted for as compromises.

At the close of the case,

MELLOR, J. (to the jury):

The question is, whether this was a loss "by perils of the seas." The policy is a contract of indemnity against such perils. In my opinion evidence is not admissible to alter or to (1) Vide "Hopkins' Handbook of Average," ed. 1854, p. 120.

V.

UNIVERSAL
MARINE
INSURANCE
COMPANY.

control its terms; but the evidence has been admitted provi- HARRISON sionally, as to an alleged custom not to allow for such a loss as caused by perils of the seas; and it is for you to say whether that custom has been proved. Such a custom must be so well known and general, as that it must be supposed to have been in the mind of both parties to the policy, and they must be deemed to have contracted on that footing. It must therefore have been notorious and recognized and acted upon, and if it was often disputed, and compromised, it is difficult to see how it can have been such a custom. Moreover a custom must be reasonable, or it cannot be legal, even though general; and as to this custom, you must consider, on the one hand, that a ship-owner does not insure against ordinary wear and tear, and has no right, under pretence of damage by perils of the seas, to have such wear and tear replaced, and an old ship repaired, at *the expense of the underwriters; and, on the other hand, that it does not seem very reasonable that damage done by a heavy sea or a storm above the water-line should be deemed damage done by perils of the seas, but that damage done by the very same sea below the line should not be so deemed.

Apart from the limitation on the contract by the alleged custom, loss by perils of the seas must be taken to include damage done by winds and waves in a tempest or storm; but the custom excludes such damage, if done beneath the water-line. It is for you to say if such a custom exists. It is not disputed that the course taken in putting into Rio and having the ship hove down and repaired as it was, was a prudent and proper course to adopt.

But apart from the custom, if we must be satisfied that the damage done was really caused by perils of the seas; and if you think the leak arose from the defective or unseaworthy state of the ship before she was insured, then you must find for the defendants.

For you must be satisfied, to find for the plaintiff, that the loss was caused by perils of the seas during the voyage home. In conclusion, the learned Judge left to the jury the following questions, which were given to them in writing by the learned Judge: 1. Was the expense of recoppering reasonably and prudently incurred? 2. Was the injury occasioned by perils of the sea? 3. Was there notoriously a custom (in stating claims for average loss between the underwriters and shipowners) to confine the claim to damage above the water-line, unless occasioned by striking the ground, or by collision with some substance other than the water? 4. Was the plaintiff aware of such a custom?

[ *195]

HARRISON

v.

UNIVERSAL

MARINE

INSURANCE
COMPANY.

[196]

1862.

[197]

At a quarter past 5 o'clock the jury returned into Court, and the foreman said they were agreed as to the first, second and fourth questions, and were 11 to 1 on the third.

The learned Judge explained at some length that the custom must be well recognized and established-not a thing done today and not done to-morrow-not enforced sometimes and sometimes compromised, but something so well understood, that without being expressed it attached to every contract of this nature.

The jury retired and were locked up all night, and ultimately agreed to a verdict for the plaintiff on all the questions submitted by the learned Judge. They found that the cost of recoppering the Kensington was reasonably and prudently incurred; that the injury which necessitated the expense was occasioned by perils of the sea; that there was no custom to limit the liability of underwriters to damage above the water-line, except when damage below the water-line was caused by striking the ground or coming in collision with some substance other than water, and that the plaintiff was not aware of any such custom when he insured the ship with the defendants' Company.

Verdict for the plaintiff (1).

BREMING v. MACKIE.

(3 F. & F. 197-201.)

Even where an agent has authority unrevoked to receive payment, the ordinary rule of law, in the absence of any evidence of a special authority, is, that the authority is to receive payment in the ordinary course of business; and payment to the agent in any other way before the time when due, will not, if there is a revocation before that time, be a good payment as against the principal.

DECLARATION, that in consideration that the plaintiffs would receive on board a ship of theirs goods of the defendant's, to be conveyed from London to Algoa Bay, the defendant promised the plaintiffs that he would, two months after the ship should

the sea on the voyage insured, and not from ordinary wear and tear."

Q. "Is there notoriously a general custom or practice, in stating and settling claims for average losses between underwriters and persons insured, to confine them to damage above the water-line, unless occasioned by striking the ground, or collision with some substance other than water? A. "No such custom is established."

Q. "Was the plaintiff, or his principals, aware of the practice or custom alleged at the time this policy was made?" A. "No."