was at war with Denmark, and the ship was captured by the Danes. Held, that the exception certainly included enemies of the shipowner's sovereign, and the shipowner was therefore freed (j).

Case 2.-F. shipped goods under a bill of lading, excepting "the Queen's enemies." Ship and goods were confiscated by the Spanish Courts for violations of the revenue laws, Spain being at peace with England. Held, that such confiscation did not come within the exception (j).

Article 82.-Arrests or Restraints of Princes, Rulers, and Peoples (k).

This exception applies to forcible interferences by a state or the government of a country taking possession of the goods by a strong hand, such as arrest, embargoes (1), or blockades (m); to government action for other purposes, indirectly resulting in the detention of the goods (n); to the decrees of a Prize Court after capture (o); or to embargoes imposed by the government of the shipowner (p).

It does not apply to ordinary legal proceedings in the courts of a state with their result (q), nor to the proceedings of a number of people not professing to act legally or by government authority (r), nor to rumours of restraints of princes (s).

and

or

Case 1.—Goods were insured (†) from Japan to London viâ Marseilles Southampton, by a line of steamers whose practice was to send goods by land from Marseilles to Boulogne, viâ Paris. One of the risks insured against was arrests, restraints, and detainments of all kings, princes, and peoples." On arriving at Paris the goods were detained by the siege of Paris by the Germans, though not by any express order dealing with the goods. Held, a peril insured against (u).

(j) Russell v. Niemann (1864), 17 C. B., N. S. 163.

(j) Spence v. Chodrick, v.s. It would be a "seizure" under an insurance policy: Cory v. Burr (1883), 8 App. C., at p. 405.

(k)

"Revolutions, riots, or émeutes are occasionally added.

(1) Rotch v. Edie (1795), 6 T. R. 413.

(m) Geipel v. Smith (1872), L. R. 7 Q. B. 404.

(n) Rodocanachi v. Elliott (1874), L. R. 9 C. P. 518.

(0) Stringer v. English & Scottish Mar. Ins. Co. (1870), L. R. 5 Q. B. 599.

(p) Aubert v. Gray (1861), 3 B. & S. 163.

(q) Finlay v. Liverpool & G. W. Co. (1870), 23 L. T. 251. Crew, Widgery & Co.

v. G. W. Steamship Co., W. N. (1887), 161.

(r) Nesbitt v. Lushington (1792), 4 T. R. 783.

(8) Atkinson v. Ritchie (1809), 10 East, 530.

(t) I have used insurance cases, as illustrations, when the different principles of construction do not affect the case.

(u) Rodocanuchi v. Elliott (1874), L. R. 9 C. P. 518.

Case 2.-F. shipped goods under a bill of lading excepting "acts or restraints of princes or rulers." The goods were detained by an order of the State of New York in a civil action. Held, not to come within the exception (uu).

Case 3.-Goods were insured against "arrests, restraints, and detainments of all kings, princes, and peoples." The vessel was seized by a tumultuous mob and the goods taken out of her. Held, not within the perils insured against, as peoples mean "the governing power of the country" (v).

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Case 4.-A ship chartered to load at St. Petersburg, with exceptious of "restraints of princes and rulers," left without loading a full cargo in consequence of rumours that a hostile embargo and seizure were about to be imposed. The jury found that such apprehensions were reasonable at the time, and that such an embargo was actually imposed six weeks later. Held, no defence to an action by the charterer, as the "restraints" excepted must be actual and operative, not merely excepted and contingent (w).

Note. The risk, "capture and seizure," common in insurance policies, rarely if ever occurs in bills of lading. The two risks have been defined in Cory v. Burr (x) thus: "Capture" includes every act of seizing or taking by an enemy or belligerent. whether in reprisals or war; thus where a vessel was sunk by the Russians in the attempt to detain her, before war had broken out, it was held a "capture" (y).

"Seizure" includes every act of taking forcible possession, either by a lawful authority or by overpowering force, whether such seizure be justified by law or not, or whether it be belligerent or not: thus a seizure of a ship by coolie passengers was held a seizure" (z).

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The difference, therefore, between the three exceptions is this:

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The King's enemies" covers belligerent acts of states, other than that of the owner of the vessel.

"Restraints of princes or rulers" includes this, and also covers restraints of the sovereign power in peace, whether of the carrier's country or not, other than the ordinary consequences of legal proceedings.

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Capture and seizure" includes all captures or seizures resulting from the above sources, and also all seizures resulting from ordinary legal proceedings or from private overwhelming force.

(nu) Finlay v. Liverpool & G. W. Co. (1870), 23 L. T. 251. Crew, Widgery & Co. v. G. W. Steamship Co., W. N. (1887) 161.

(v) Nesbitt v. Lushington (1792), 4 T. R. 783. This would be a "seizure." See note, post.

(r) Atkinson v. Ritchie (1809), 10 East, 530. Sed quere, whether the master would not be excused on the doctrine of The Teutonia (1872), L. R. 4 P. C. 171. (c) (1883), 8 App. C., at p. 405,

(4) Powell v. Hyde (1855), 5 E. & B. 607.

(z) Kleinwort v. Shephard (1859), 1 E. & E. 447. See also Johnston v. Hogg (1883), 10 Q. B. D. 432; Ionides v. Univers il Marine Ins. Co. (1863), 14 C. B., N. S., 259.

Article 83.-Perils of the Sea.

The term, "Perils of the Sea" (a), whether on policies of insurance, charterparties, or bills of lading, has the same meaning (b), and includes:

Any damage to the goods carried, by sea-water, storms, collision, stranding, or other perils peculiar to the sea, or to a ship at sea, which could not be foreseen and guarded against by the shipowner or his servants as necessary or probable incidents of the adventure (b).

This will include all natural and necessary consequences of perils of the sea (e), but not consequences which do not necessarily and immediately follow from the occurrence of such perils, such as deterioration of goods by reason of delay caused by sea perils (d).

The shipowner will be liable for incidents that must occur on the voyage, such as taking the ground in the ordinary course of navigation (e), and for perils which, though occurring on the sea, are not peculiar to the sea, or to a ship on the sea, such as rats eating the cargo (ƒ), and damage done by explosion of boilers, or bursting of steam valves (g).

(a) This exception is usually expanded into “all and every other dangers and the accidents of the seas, rivers, and [steam] navigation of whatsoever nature and kind excepted." Before the recent cases in the House of Lords (note (b) below), the words "and navigation" had some wider meaning than "perils of the sea." It had been held in Woodley v. Michell (1883), 11 Q. B. D. 47, that a collision caused by negligence of the other ship was not a peril of the sea; but it was further held in S. S. Garston Co. v. Hicki, Borman & Co. (1886), 18 Q. B. D. 17, that such a collision was a peril of navigation. It has now been decided by the House of Lords, overruling Woodley v. Michell, that damage by sea-water caused by such a collision is a peril of the sea, and the words "and navigation" appear meaningless. The Xantho (1887), 12 App. C. 503.

(b) Collected from the judgments in Thames and Mersey Ins. Co. v. Hamilton (1887), 12 App. C. 48: The Xantho, ibid. p. 503: Hamilton v. Pandorf, ibid., p. 518.

(c) Cf. Montoya v. London Assurance Co. (1851), 6 Ex., at p. 458; Jackson v. Union Marine Ins. Co. (1874), L. R. 10 C. P. 125.

(d) Taylor v. Dunbar (1869), 4 L. R. C. P. 106; Pink v. Fleming (1890), 25 Q. B. D. 396.

(e) Vide post, p. 178.

(f) Laveroni v. Drury (1852), 8 Ex. 166; Kay v. Wheeler (1867), L. R. 2 C. P. 302; Hamilton v. Pandorf, 12 App. C. 518.

(g) Thames and Mersey Ins. Co. v. Hamilton (1887), 12 App. C. 483; overruling West Indian Co. v. Home and Colonial Ins. Co. (1881), 6 Q. B. D. 51.

Note. As so defined, " perils of the sea," which are not the same as perils on the sea (h), will include those "acts of God," where the effective cause is one peculiar to the sea. Thus frost or lightning (i), as effective causes of loss, will be acts of God, but not perils of the sea; damage by swordfish or icebergs would be a peril of the sea, if the shipowner could not have prevented it by reasonable care. There are dicta in the judgments of the House of Lords which suggest that the limitation in the definition, "peculiar to the sea," is too narrow; e.g., per Lord Halsbury (12 App. C. at p. 523): "Some effect must be given to the words, perils of the sea the sea, or the vessel being on the sea, has nothing to do with " (a rat's eating cargo in the hold of a ship); and again, per Lord Bramwell (p. 492): "The damage to the donkey-engine was not through it being in a ship or at sea"-" all perils, losses and misfortunes of a marine character, or of a character incident to a ship as such," a wider phrase which Lord Herschell also uses (p. 498): damage of a character to which a marine adventure is subject." But these dicta again must be limited by the result of the decisions, as when Lord Halsbury says (p. 491), that "sea perils cannot be enlarged into perils, whose only connexion with the sea is that they arise from machinery which gives motive power to ships." Perhaps the phrase "peculiar to the sea, or to a ship at sea," is most consistent with the authorities, and I have therefore adopted it.

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Some previous definitions must clearly be revised. That by Lush, J.: "Casualties arising from the violent action of the elements as distinguished from their silent natural gradual action" (k) must be altered by substituting for "violent," "unexpected," or "out of the ordinary course of the adventure." For a ship running on a sunken rock in calm weather does not suffer from the violent action of the elements, but does incur a loss by perils of the sea. Again, the definition by Lopes, L.J., in Pandorf v. Hamilton (1): "Sea-damage occurring at sea and nobody's fault," is clearly not exhaustive. Sea-damage, though the fault of somebody (e.g., another ship), will be a peril of the sea both under a policy of insurance and a contract of affreightment, though by reason of implied undertakings the shipowner may not be protected. And it is not clear what sea-damage it is which does not occur at sea.

(h) Per Lord Herschell in The Xantho (1887), 12 App. C. 509. See the similar remark as to "perils of the roads," by Parke, B., in Rothschild v. R. M. Steam Packet Co. (1852), 7 Ex., at p. 743.

(i) The suggestion arguendo by Pollock, C.B., in Lloyd v. General Coll. Co. (1864), 3 H. & C., at p. 290, that lightning is a peril of the sea is, it is submitted,

erroneous.

(k) Merchant Trading Co. v. Universal Marine Co. (1874), L. R. 9 Q. B. 596. (16 Q. B. D., at p. 633; approved by Lord Bramwell (12 App. C., at pp. 432, 526), and Lord Macnaghten (12 App. C. p. 531).

N

The exception includes:

(1.) Damage by sea water, whether it enters the ship through negligence of another ship in collision (m), or through

holes made by rats (n), or worms (0), or swordfish, or icebergs, or cannon shot (p).

(2.) Damage to the goods by rough weather beyond the ordinary wear and tear of the voyage, the stowage not being negligent (q).

(3.) Captures by pirates (r) or wreckers (8).

(4.) Damage received while in dock without negligence, if the docking is in the course of the voyage (t); but not if the docking is not in pursuance of a voyage: as where the ship was blown over in a graving dock by a squall (u).

(5.) Stranding not incurred as part of the navigation, unless the shipper proves negligence (v). Thus damage through taking the ground in the ordinary course of navigation in a dry harbour, or hauling up on the beach to repair, will not be a peril of the sea (w). But it will be a peril of the sea if owing to stress of weather something different from the ordinary course of navigation occurs without negligence: as where a heavy swell bumped the ship on a hard bottom (x), or where damage is caused in the ordinary course of navigation by an unseen peril, which could not have been detected by reasonable care, as where a ship takes the ground over an unknown hole and strains herself (y), or where a vessel is driven by stress

(m) The Xantho (1887), 12 App. C. 503, overruling Woodley v. Michell (1883), 11 Q. B. D. 47. Cf. Buller v. Fisher (1800), 2 Peake, 183.

(n) Hamilton v. Pandorf (1887), 12 App. C., p. 518.

(o) Cf. Rohl v. Parr (1796), 1 Esp. 445.

(p) Cullen v. Butler (1816), 5 M. & S., 461, as corrected by Lord Herschell, 12 App. C. 509. It seems that the entry of sea-water is primâ facie a peril of the sea, though if it could have been prevented by due care of the shipowner and his servants, the shipowner is not excused by such a peril of the sea. Cf. Davidson

v. Burnand (1868), L. R. 4 C. P. 117. The Cressington (1891), P. 152. (q) Lawrence v. Aberdein (1821), 5 B. & A. 107; Gabay v. Lloyd (1825),

3 B. & C. 793; The Catherine Chalmers (1875), 32 L. T. 847.

(r) Pickering v. Barclay (1672), Styles, 132.

(s) Bondrett v. Hentigg (1816), Holt, 149.

(t) Laurie v. Douglas (1846), 15 M. & W. 746; but compare The Accomac (1890), 15 P. D. 208; and Devaux v. l'Anson (1839), 5 Bing., N. C. 519, as criticised by Lord Herschell, 12 App. C. 497.

(u) Phillips v. Barber (1821), 5 B. & A. 161.

(v) The Norway (1864), B. & L. 404.

(w) Magnus v. Buttermer (1852), 11 C. B. 876; Thompson v. Whitmore (1810),

3 Taunt. 227.

on her side.

(x) Fletcher v. Inglis (1819), 2 B. & A. 315. Cf. Bishop v. Pentland (1827), 7 B. & C. 219, where a rope broke and the ship fell (y) Letchford v. Oldham (1880), 5 Q. B. D. 538. (1821), 5 B. & A. 225,

See also Rayner v. Godmond