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induced by some intervention of human agency. Take the case of a ship which strikes upon a rock and is lost, because the light which should have warned the mariner against it has become extinguished owing to the negligence of the person in charge. Why should this not be within the exception, whilst a similar loss arising from a vessel coming into contact with a rock not marked upon the chart admittedly would be? And what substantial distinction is there between this latter case and that of a vessel foundering through collision with a ship at anchor left at night without lights ?"
Where a ship was held liable for a collision caused by a defect in her machinery, and such defect was due not to her master or crew, but to the negligence or default of other persons employed by the shipowner to repair the machinery on shore before the commencement of the voyage, and for the purposes of the voyage. The collision was occasioned by 'improper navigation' within the meaning of section 54, sub-section 4, of the Merchant Shipping Act Amendment Act, 1862, so as to entitle the owners to limit their liability under the provisions of that Act.
All damage, wrongfully done by one ship to another, whilst the ship which does the damage is being navigated, and where the wrongful act of the ship which does the damage is due to the negligence of any person for whose negligence the owner is liable, is comprised within section 54 of the Merchant Shipping Act Amendment Act, 1862, unless such negligence occurs with the privity of the owner."
The Warkworth, L. R. 9 P. D. 145; 53 L. J. Ad. 65,
The clause" from loss or damage of or to any goods or merchandise caused by improper navigation of the ship carrying the goods or merchandise or of any other ship," which is to be found in club insurance policies, does not refer simply to improper navigation with reference to the ship herself, but also to improper navigation with reference to goods in the ship. It implies something wrongly done, or wrongly omitted to be done, by the shipowner or his servants, for whom he is responsible at some time or other. Thus, where the plaintiff's ship having encountered bad weather, put back to coal and trim her cargo. Going into harbour she took the ground but was got off. The pumps were put on to try whether she had made any water, and for this purpose the bilge-cock was opened, and through the negligence of the crew, was not closed when the pumping ceased. Shortly afterwards the sea-cock was opened to fill the boilers, and through like negligence was left open, and the water consequently entered and damaged the cargo. On these facts it was held that the damage arose from "improper navigation" within the meaning of the clause.1
In another case where the shipowner neglected to efficiently close a loading port in the side of the ship. The act of negligence occurred before the completion of the loading. Goods were damaged by seawater which leaked in during the voyage,
1 Good v. The London S. Shipowners Protecting Association, L.R. 6 C.P. 563. 2 Carmichael & Co. v. The Liverpool Sailing Shipowner's Mutual In demnity Association, L. R. 19 Q. B. D. 242; 56 L. J. Q. B. 428,
but the leak did not endanger or impede the navigation of the ship. It was held, that the damage was caused by improper navigation of the ship within the meaning of the Articles of Association of a Shipowners' Mutual Indemnity Association. It is necessary to bear in mind that the construction of this clause proceeds upon considerations other than those raised by somewhat similar conditions in the bill of lading. Smith, J., in his judgment in this case remarked "as to the authorities, I only desire to add that I do not deal at all with the cases in which similar words in bills of lading have been discussed and construed, because I do not think that these cases are in point," and Willes, J., said:— "The case is not free from difficulty, and the course which the argument took is an illustration of the danger of trying to arrive at the meaning of a term in a particular contract by the aid of the construction placed upon the same term in a contract of a totally different nature. With regard to cases dealing with bills of lading, the words which we have to construe, are in the generality of cases, found in connection with a number of other words which have such a large effect in limiting or extending their meaning, that we can gather but little from them as to the construction of the words when standing, as they do here, by themselves. In the same way, with reference to the case of 'The Warkworth," the section of the Merchant Shipping Act there construed, deals with a state of things so different from
1 L. R. 9 P. D. 145.
this contract of insurance, that we are in danger of being misled, rather than guided, by the construction of the word in such widely different circumstances."
Where, however, the act of putting cargo into a hold so saturated with a tarry substance that the whole cargo was tainted and damaged, it was held distinguishing the above cases, that the damage was occasioned by the bad management of the vessel as a receptacle or warehouse for the goods, which did not affect her qualities as a ship, and did not come within the term “improper navigation," and, further, that it was a case of improper stowage within the meaning of the rules of the defendants' Association, and that on both these grounds, the defendants were protected from liability.1
The words "dangers of the river" signify the natural accidents incident to the navigation, not such as might be avoided by the exercise of that discretion and foresight which are expected from persons in such employment."
In Alabama, where inland water transportation is very great, there seems to be no disposition to make any distinction between "dangers of the river" and dangers of the sea." And it is considered that the 'perils of the sea and of the river" are so nearly allied that they may be considered the same except in the few instances in which the reason differs. That there is a settled distinction between perils of
1 The Canada Shipping Co., Ld. v. The British Shipowners' Mutual Protection Association, Ld., L. R. 23 Q. B. D. 342; 58 L. J. Q. B. 462, 2 Ang. on Car. s. 168,
"the navigation" and the "Act of God" is considered to be settled.1
"Dangers of the road," if applied to land, must be construed of dangers of the kind that are properly caused by roads, such as overturning of the carriages."
The following losses have been held to be included in the term "dangers or perils of the sea," &c. :Loss by pirates.3
From collision when it is loss by foundering, owing to collision with another ship, if it occurs without fault in the carrying ship."
By the common risks of navigation, from rocks, sands, rapids, and the like, when the loss occasioned thereby happens without negligence or default in the master or crew.5
Damage by sweating when not occasioned by bad stowage or negligence."
Animals being killed or damaged by the motion of the ship during a storm."
Where the ship is stranded.
Loss by the wilful, but not barratrous, act of the crew, in throwing the ballast overboard."
1 Ang on Car. s. 168.
"De Rothschild v. The Royal Mail Steam Packet Co., 21 L. J. Ex. 273. 3 Pickering v. Barclay, Styles. 132; 2 Roll. Ab. 248; Kay on Sh., Vol. 1, 411. Buller v. Fisher, 3 Esp. 67; Smith v. Scott, 4 Taunt. 125; The Xantho, L. R. 12 App. Cas. 503.
5 Fletcher v. Inglis, 2 B. & A. 315.
Clark v. Barnwell, 12 How. 272; 19 Curtis 131.
Gabay v. Lloyd, 3 B. & C. 793; Lawrence v. Aberdein, 5 B. & Ald. 107. 8 Hahn v. Corbett, 2 Bing. 205.
Dixon v. Sadler, 9 L. J. Ex. 48.