SECTION XII.

OF THE DESCRIPTION OF THE PROPERTY INSURED.

THE description must be such as will distinctly identify the property insured, as by quantity, marks, and numbers, or a reference to the fact of shipment, or the time of shipment, or the voyage, or the consignee; or in some similar and satisfactory way; and no mere mistake in a name, or otherwise, vitiates the description if it leaves it sufficiently certain. If different shipments come within the policy, the insured may attach it to either by his declaration, which may be done after the loss, provided this appears to have been the intention of the parties. "Cargo," "goods on board," "merchandise," mean much the same thing; and do not attach to ornaments, clothing, or the like, owned by persons on board and not intended for commercial purposes. "Property" is the word of widest and almost unlimited meaning. "Ship" or "vessel " includes all that belongs to it at the time, even sextants or chronometers belonging to the ship-owner, and by him appropriated to the navigation of the ship. So it includes all additions or repairs made during the insurance.

The phrase "a return cargo" will generally apply to a homeward cargo of the party insured in the same ship, however it be procured; but the phrases "proceeds" and "returns" are generally regarded as limited to a return cargo bought by means of the outward cargo. And neither of these, or any similar phrases, will apply to the same cargo brought back again, unless it can be shown, by the usage, or other admissible evidence, that this was the intention of the parties.

The nature of the interest of the insured need not be specified, unless peculiar circumstances, closely connecting this interest with the risk, make this necessary. But either a mortgagor or a mortgagee, a charterer, an assignee, a consignee, a trustee, or a carrier, may insure as on his own property, and without describing the exact nature of his interest.

It is common to cover the freight by a high valuation of the

ship; but if there be an open policy on the ship, when its value comes to be inquired into, the freight is not included. An owner of both ship and cargo may cover by the word freight what his ship would earn by carrying that cargo for another person. Insurance on freight from one port to another covers the freight on goods taken in by agreement at ports intermediate to them. But if the insurance be on freight, and the goods are of such a kind that the insurance, had it been on goods, would not have attached, the insurance will not attach to the freight. Thus, in an American case, the insurance was on freight generally. The goods had not been put on board, but a specific contract had been entered into respecting them. Some were to be carried above, and some under deck. It was held that for the portion to be carried under deck the insured might recover his freight, but not for that which was to have been carried on deck, because an insurance on the goods would not have been valid if they had been carried on deck.

Freight "to" a place is valid, although the cargo is to go farther, and the freight be paid only at the more distant port. But insurance on freight "at and from" a place does not cover freight "to" that place. If a charterer pays a certain price to the owner, and has agreed to carry a cargo for another at a higher price, he may insure the difference, which is his profit, under the name of freight.

SECTION XIII.

OF THE PERILS COVERED BY THE POLICY.

THE policy enumerates, as the causes of loss against which it insures, Perils of the Sea, Fire, Piracy, Theft, Barratry, Capture, Arrests, and Detentions; and "all other perils," by which is meant, by construction of law, all other perils of a like kind with those enumerated.

It is a universal rule, that the insurers are liable only for extraordinary risks. The very meaning of "seaworthiness," which the insured warrants, is that the ship is competent to

encounter with safety all ordinary perils. If she be lost or injured, and the loss evidently arose from an ordinary peril, as from common weather, or the common force of the waves, the insurers are not liable, because the ship should be able to withstand these assaults. And if the loss be unexplained, and no extraordinary peril be shown or indicated, this fact would raise a very strong presumption of unseaworthiness. As, for example, if the vessel went down while sailing with favorable winds on a calm ocean.

So the insurers are not liable for loss or injury by wear and tear, or natural decay, or the effect of age. The ship itself, and every part of it, and everything which belongs to it, must give out at some time; and when it is actually lost, the insurers are not held without sufficient evidence of a cause adequate to produce its loss, provided it had been in a good condition and properly secured. For without this evidence it would be presumed to have been lost by its own defect.

It is, indeed, another universal rule, that the insurers are never liable for a loss which is caused by the quality of the thing lost. This rule applies, as above stated, to the ship, her rigging and appurtenances, when worn out by age or hard service. But its most frequent application is to perishable goods. The memorandum, already spoken of, provides for this in some degree. But the insurers are liable for the loss of no article of merchandise whatever, if that loss were caused by the inherent qualities or tendencies of the article, unless these qualities or tendencies were excited to action and made destructive by a peril insured against. Thus, if hemp rots from spontaneous fermentation, which cannot occur if it be dry, the insurers are not liable if the loss arose from the dampness which the hemp had when laden on board; but if the vessel were strained by tempest, and her seams opened, and the hemp was in this way wet, and then rotted, they are liable.

The insurers do not, of course, insure any man against his own acts. But when we consider whether they are liable for losses caused by the agents or servants of the insured, it is necessary to make a somewhat nice distinction. Beginning with the general principle, which should apply as well to the contract of insurance as to all others, we say that the owner,

as principal, is liable for the acts of his agents while they are acting as his agents, and only executing the work he gave them to do, in a manner which conforms with his instructions and authority. But for the consequences of the negligence or wilful misconduct of the master or crew, the insurers may be liable to the owner, because, in this respect, the master or crew are not the agents of the owner. They are his agents only if he directed the very negligence or wrongful act which destroys the property insured, and then the insurers are of course discharged. So they are, if the misconduct be such as to prove the original unfitness of the master or crew, and therefore to show the unseaworthiness of the ship in this particular; or if they give the insurers the defence of deviation (to be spoken of presently), or the like.

The insurers may take upon themselves whatever risks they choose to assume. And express clauses in a policy, or the uniform and established usage and construction of policies, may throw upon them, as in fact it does, a very large liability to the owner or shipper for the effects of the misconduct wilful or otherwise of the master and crew. The clause relating to barratry, to be spoken of presently, is of this kind.

If the cargo is damaged through the fault of the master or crew, the shipper of the cargo has a remedy against the owner of the ship. But this does not necessarily discharge the insurers. If, however, he enforces his claim against them, he is bound to transfer to them his claim against the ship-owner. For the insurers of the cargo, by paying a loss thereon, put themselves, as it were, in the position of the shippers, and acquire their rights.

Generally, no loss will be attributed to the negligence or default of the master or crew, which can be with as good reason attributed to any of the perils insured against.

SECTION XIV.

OF PERILS OF THE SEA.

By this phrase is meant all the perils incident to navigation; and especially those arising from the wind and weather, the

state of the ocean, and its rocks and shores. But it will be remembered that the insurers take upon themselves only so many of these as are "extraordinary." Hence, destruction by worms is not such a peril as the insurers are liable for, because it is not extraordinary. It is known to exist in all waters; and in certain waters, and at certain seasons, this danger is very great; and it is the duty of the insured to guard effectually against this. It is supposed that, by coppering sufficiently, and other proper precautions, a vessel may be perfectly protected from any considerable damage by worms. And if this can be done, it is the duty of the ship-owners to do it. It seems now settled that fire is not included among "perils of the sea," or "perils of the river." If the vessel, or the cargo, which is far more common, be injured by rats, this has been regarded as so far a peril that cannot be certainly prevented, that, if the insured have taken reasonable precaution against them, the insurers are liable. There is now, however, a general disposition to put the danger from rats on the same footing as that from worms. Thus, in an English case, goods were insured on a voyage from London to Honduras, with leave to touch at Antigua. While at the last-named port, her timbers were so damaged by rats that a survey was called, and the vessel condemned. The court held that the underwriters were not liable.

In an action against a common carrier for damages caused by rats, the defence was that the captain had two cats on board. According to the writers on foreign maritime law, this would have been a good defence. But the English court held that it was no excuse. They said: "Now, whatever might have been the case when Roccus wrote, we cannot but think that rats might be banished from a ship by no very extraordinary degree of diligence on the part of the master; and we are further very strongly inclined to believe, that, in the present mode of stowing cargoes, cats would afford a very slight protection, if any, against rats. It is difficult to understand how, in a full ship, a cat could get at a rat in the hold at all, or at least with the slightest chance of catching it."

An American case supports the view that an insurer will be liable in such a case, if there be no fault on the part of the captain. Chancellor Kent says: "The better opinion would seem to be, that an insurer is not liable for damage done to a