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![handle is hein.slavery/ssactsengr0061 and id is 1 raw text is: LAWRENCE V. ABERDEIN
[107] LAWRENCE against ABERDEIN. Monday, October 29th, 1821. A policy
was effected on living animals, warranted free from mortality and jettison. In
the course of the voyage, some of the animals, in consequence of the agitation
of the ship in a storm, were killed ; and others, from the same cause, received
such injury that they died before the termination of the voyage insured: Held,
that this was a loss by a peril of the sea, for which the underwriters were liable.
[Distinguished, Taylor v. Dunbar, 1869, L. R. 4 C. P. 211.]
Assumpsit upon a policy of insurance. The declaration stated a total loss of the
animals insured, by perils of the sea on the voyage. Plea, general issue. At the
trial, before Best J., at the London sittings after Trinity term, 1820, a verdict was
found for the plaintiff, subject to the opinion of the Court, on the following case.
The policy was effected on the 30th December, 1819. The voyage insured was at
and from Cork to Barbadoes and St. Vincents; and at the foot of the policy the
insurance was declared to be on thirty mules, tell asses, and thirty oxen, warranted free
of mortality and jettison. On the 17th January, 1820, the ship sailed with the
animals insured, properly stowed on board, on the voyage insured. On the 19th of
the same month, a violent storm arose, which caused the ship to labour and pitch.
This lasted, without intermission, until the 30th of the same month, when, for the
preservation of the ship and cargo, and on account of the damage which the ship had
sustained from the violence of the storm, the ship put into Mount's Bay, in Cornwall,
in order to refit. On the first day of the storm, from the violent pitching and rolling
of the ship, occasioned by the storm and consequent agitation of the sea, two of the
mules, one of the oxen, and five of the asses were killed ; the remainder of the animals,
from the same causes and perils of the sea, on that and the following days, until the
30th of January, received such violent and severe bruises, lacerations, and injuries,
that all of them [108] died in consequence thereof, before the ship sailed again in
prosecution of her voyage from Mount's Bay, which she did on the 14th February,
1820, excepting six mules and one ass, one of which six mules afterwards died from
the same cause, before the arrival of the ship at Saint Vincents. The ship arrived at
Saint Vincents, with the remaining five mules and one ass, on the 24th March, and
delivered the rest of her cargo in safety. The question for the opinion of the Court
was, whether the plaintiff was entitled to recover for the loss of all or any and which
of the animals insured?
F. Pollock, for the plaintiff. The underwriters are not exempted from the loss
that has happened by the word of the special exception, warranted free from
mortality. These words were introduced into the policy by the underwriters, and
must therefore be taken most strongly against them. The word mortality signifies
death arising from natural causes. Here, the death of the animals arose directly
from the violence of the tempest, and not from natural causes. The loss did not
therefore arise from mortality, if that word be understood in its ordinary and popular
meaning. Some effect will be given to the exception, by construing the word in that
sense; for the underwriters will thereby be exempted from one species of loss for
which they might otherwise be responsible, viz., in the event of the death of the
animals by sea-sickness in a storm. For such a loss the underwriters would be
answerable under a common policy. But they would be exempted by the special
exception.
[109] Campbell, contrA. Some effect must be given to the words of the exception,
so as to extend to the underwriters a protection against some species of loss to which
they would have been liable, if those words had not been introduced into the policy.
Now they would not have been liable for any loss arising from the natural death of
animals, but they would have been liable if they had been drowned in a tempest or
killed in battle. Pothier, Trait6 du Contrat d'Assurance, c. 1, s. 2, art. 2, s. 3, and
Valin Ordonnances de la Marine, liv. 3, tit. 6, art 11. Here the animals died in
consequence of the injury they received during the storm, and the underwriters,
therefore, would have been liable for this loss, under a policy in the common form.
The exception, therefore, was introduced for the purpose of exempting them from
all losses whatever, arising from the vitality of the subject matter insured, or, in
other words, to reduce the risk to the same level as if the subject matter insured
was inanimate goods. If that had been the case here, the cargo might have received
5 B. & AT.D. 107.
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