No. 67. Wells v. Hopwood, 3 Barn. & Ad. 35, 36.

loss provided for by the memorandum, and, consequently, to leave the matter at large according to the contents of the policy; and as every average loss becomes a charge upon the underwriters where a stranding has taken place, whether the loss has been in reality occasioned by the stranding or no, the true and legal sense of the word "stranding" is a matter of great importance in policies. upon goods. In policies on ship, the memorandum is not found. In such policies the inquiry is, whether a loss arose by perils of the sea, and the question is consequently unfettered by any technical phrase. Upon the facts of this case, it appears to me that the event which happened to this ship is within the second branch of the rule as above proposed. If the rope had not slackened, and the wind had not been in such a direction as it was, the vessel would have remained safe during the night; for although raised by the influx of the tide, she would at its ebb have grounded again on the soft and even bottom over which she had been placed. The events that occurred, unusual and accidental in themselves, caused the vessel to quit that station, and go in part to another, where, upon the ebbing of the tide, her forepart rested on a stony bank, so as to be above her remaining part, and to cause the straining by which the cargo was injured from the influx of water through the opening of the planks.

I should observe that my judgment in this case is not founded upon the fact of injury to the cargo, or of the want of injury to the ship; I do not consider either of those circumstances as being properly an ingredient in the question.

The rule as proposed will probably be found * consistent [* 36] with the cases quoted at the bar, and which it is not necessary for me to repeat. I will only observe, that the facts of the case of Bishop v. Pentland, 7 B. & C. 219 (31 R. R. 177) cannot, in my opinion, be distinguished in effect from those of the present case it is the last decision on the subject. It cannot be decided that this is not a case of stranding, without overruling that decision. The rule as proposed upholds the judgment in that case; and for the reasons given I think this is a case of stranding, and the verdict must be entered for the plaintiff.

Judgment for the plaintiff.

Nos. 66, 67.-Burnett v. Kensington; Wells v. Hopwood. —Notes.

ENGLISH NOTES.

The points settled by the former of the above cases as to the meaning of the memorandum are thus summarized by Arnould (Ins., 6th ed., p. 823): "1. That all losses, in the nature of general average, are to be paid by the underwriter as though the policy did not contain the memorandum. 2. That the underwriter is liable for no particular average, or for none under the rates specified, unless the ship be stranded. 3. But that if the ship be stranded while the memorandum articles are on board, then the underwriter is liable to pay all particular average losses, whether caused by the stranding or not, just as though the memorandum did not exist."

As to what constitutes a stranding, the latter of the above cases contains an important exposition of the criterion. The dissenting judgment of PARKE, J., however, shows that the facts bring the case at least very near the line. Very shortly after the decision in Wells v. Hopwood, the case of Kingsford v. Marshall (1832), 8 Bing. 458, was decided by the Common Pleas. The vessel arriving in Dunkirk harbour, which at that time was a tidal harbour, nearly dry at low water, was moored fore and aft to the shore at the place where it was intended she should take the ground as the tide went out. She was at the same time, in order to prevent her settling over as the tide fell, fastened from the mainmast-head by a rope. Before she took the ground this rope broke; and after the ship had settled down it was discovered that, by coming in contact with some hard substance, holes had been made in her bottom and the cargo damaged. There was contradictory evidence as to whether the ship took the ground in the place and manner she would have done if there had been no accident to the rope. The jury were directed that if the ship took the ground at the very place where it was intended she should at the time she was moored, there was no stranding within the meaning of the policy; but if in consequence of the breaking of the rope, or any other casualty, the ship took the ground, not in the place. where it was intended she should settle by the ebbing of the tide, but in some other and different place, then there was a stranding. The jury found for the defendant, thereby adopting the former alternative; and a new trial was moved for on the ground of misdirection. The Court, by a considered judgment delivered by TINDAL, Ch. J., discharged the rule. "It has been settled," he says, "by various decided cases that by the term 'stranding' neither of the contracting parties could intend a taking of the ground by the ship in the ordinary course of navigation used in the voyage upon which she was engaged. It is needless, therefore, to say that when a vessel, in the course of a voyage insured, is sailing in a tide-river, or puts into a tide-harbour, the taking

Nos. 66, 67.-Burnett v. Kensington; Wells v. Hopwood. —Notes.

the ground from the natural cause of the deficiency of water, occasioned by the ebbing of the tide, is no stranding within the meaning of the policy. Otherwise, at every ebb of the tide, there would be a stranding; and the memorandum intended for the security of the underwriter against partial losses upon perishable commodities would be altogether nugatory, as the smallest injury to the cargo, occasioned at an early part of the voyage, would always be a loss within the policy, by reason of the ship discharging her cargo in a tide-harbour. The mere taking of the ground, therefore, in a tide harbour, in the place intended by the master and crew, or the proper officers of the harbour, cannot, upon any principle of construction or common sense, be held to constitute a stranding. What more, then, is necessary? We think a stranding cannot be better defined than it has often been in several of the decided cases, viz. 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." Then after referring to Carruthers v. Sydebotham (cited p. 204, supra), Barrow v. Bell (p. 204, supra), Bishop v. Pentland (p. 204, supra), and Wells v. Hopwood (p. 200 et seq., supra), he continued: "All these cases were decided upon the principle that the taking the ground was occasioned by some extraneous and accidental cause, and was not a taking of the ground in the usual course of navigation. We think the attention of the jury, in the present case, was called to the very point to which it ought to have been directed, viz. whether the grounding was such as the master and crew intended, that is, merely by the ebbing of the tide, in the ordinary course of navigation; or whether the grounding in the particular spot where she took the ground was the effect of accident. Upon the facts before them, we think the jury found a right verdict."

A comparatively recent case in which the foregoing and other cases are fully considered is Letchford v. Oldham (C. A. 1880), 5 Q. B. D. 538, 49 L. J. Q. B. 458, 28 W. R. 789. Cargo was insured free from average "unless the ship be stranded." The ship, in proceeding to her port in a tidal harbour, on a tide in which she expected to reach the quay, grounded before reaching the quay on a small bank about twenty feet from the quay, and on settling down was found to be lying in a strained position, with her back on the bank and her head in a ditch beside it. The bank and ditch had been caused by paddle steamers going out at low tide, and their existence was unknown at the time of grounding. It was held by the Court of Appeal, affirming the judgment of FIELD, J., that this was a stranding. BRETT, L. J., said: "I accept the definitions given by Lord TENTERDEN in Wells v.

Nos. 66, 67.-Burnett v. Kensington; Wells v. Hopwood. -Notes.

Hopwood, and by TINDAL, Ch. J., in Kingsford v. Marshall. Applying the definition of TINDAL, Ch. J., to other cases, I do not think it necessary to apply exactly the same words which the learned Chief Justice used in that case to other cases which may differ on the facts. The words which he uses are, 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.' In applying this definition to the case now under consideration, we may paraphrase it by saying not from usual causes ordinarily incident, but from an unusual cause."" COTTON, L. J., said: "I think that the reasonable conclusion is that this was an unusual state of the harbour, caused by an extraneous or accidental cause. Then the case comes within the definition of stranding given by TINDAL, Ch. J., Kingsford v. Marshall." THESIGER, L. J., said: "The inference drawn, and I think properly drawn, by FIELD, J., from the facts proved, was that the trench and bank were due to an accidental as well as artificial cause temporarily and recently arising, and that the bed of the harbour was not in its usual or ordinary state and condition. Under such circumstances, and upon the principles laid down by TINDAL, Ch. J., and other Judges, it appears to me that the judgment for the plaintiff was right."

in

In the case of The Glenlivet, The Glenlivet Steamship Co. v. Titcombe (C. A. 1893), 1894, P. 48, 63 L. J. P. D. & A. 45, 69 L. T. 706, 42 W. R. 97, the question arose under the clause in an insurance of goods, "warranted free from average under three per cent unless general or the ship be stranded, sunk, or burnt." The vessel was a steamer, and the coal in certain of the coal bunkers caught fire; but the fire was extinguished with the result only of some damage to the plates of the bunkers, and a quantity of the coal being converted into coke. It was held by the Court of Appeal that this did not constitute burning of the ship in the popular sense, and that the warranty was not broken.

AMERICAN NOTES.

These cases are cited in 2 Parsons on Marine Insurance, p. 72.

The mere fact that a vessel is high and dry at low tide does not constitute a total loss. Peele v. Merch. Ins. Co., 3 Mason (U. S. Circ. Ct.), 42; Wood v. Lincoln, &c. Ins. Co., 6 Massachusetts, 479; Patrick v. Com. Ins. Co., 11 Johnson (N. Y.), 9; King v. Middletown Ins. Co., 1 Connecticut, 201.

Parsons says of the phrase, "or the ship be stranded : Both in England and this country it seems to be settled that if the ship be literally stranded, that is enough, without much reference to the length of time that she remains on shore, or any regard to the effect of this stoppage. It is true that the Courts say it is not enough that the ship did just 'touch and go;' her

And in one

course must be arrested and all progressive motion must cease. case, where a vessel struck on a rock, which made a hole in her bottom, whereby the cargo was damaged, it was held not to be a stranding, because the course of the vessel was not delayed." Citing Lake v. Columbus Ins. Co., 13 Ohio, 48; 42 Am. Dec. 188, citing Wells v. Hopwood.

A VALUED policy is one which states the value, as between the insured and insurers, of the interest of the insured in the subject-matter. This valuation is conclusive between the parties as the standard of indemnity, whether the loss is total or partial, except in the case of fraud.

A valued policy of insurance is not to be considered as a wager policy. [1167]

A rule having been obtained by the plaintiffs (the insured) for the defendant (the insurer) to show cause why a verdict given for the defendant should not be set aside, and a new trial had,

The Court, after hearing the matter fully debated by the counsel on both sides, took time to advise.

And Lord MANSFIELD now delivered their resolution in doing which, he stated everything requisite to be known, in so full and