of weather into a tidal harbour where she takes the

ground (z).

The exception will not include :

(1.) Damage resulting from the ordinary wear and tear of the

voyage which must be provided against by proper packing by the shipper, proper stowage by the ship

owner.

(2.) Any cases where the damage can be traced to negligence on the part of the shipowner or his servants in the stowage or management of the vessel (a).

(3.) Damage resulting from original unseaworthiness of the vessel (b).

(4.) Damage from war (c).

(5.) Damage from confiscation by foreign Courts, or the consequences of actions at law (d).

(6.) Barratrous acts of the crew (e).

(7.) Damage done directly by rats, or vermin, to the cargo (f).

Case 1.-Goods were lost through a collision with another ship, neither vessel being to blame. Held, that such a collision was a peril of the seas (g).

Case 2.-Goods were damaged through a collision caused by the negligence of the carrying ship. Held, not a peril of the seas (h).

Case 3.-Goods were damaged by a collision caused by the negligence of the other ship, winds and waves not contributing. Held, a peril of the seas (i).

Case 4.-Cattle were insured against perils of the sea; they were properly stowed, but the viclence of the weather killed some and bruised others. Held, damage by perils of the seas (j).

Case 5.-Goods shipped were stowed in a place especially exposed to the

(2) Corcoran v. Gurney (1853), 1 E. & B. 456. Cf. Barrow v. Bell (1825), 4 B. & C. 736.

(a) Per Lord Herschell, The Xantho, 12 App. C. 510; The Oquendo (1878), 38 L. T. 151; The Freedom (1871), L. R. 3 P. C. 594; The Figlia Maggiore (1868), L. R. 2 A. & E. 106.

(b) The Glenfruin (1885), 10 P. D. 103, and see Article 29.

(c) The Patria (1871), L. R. 3 A. & E. 436.

(d) Spence v. Chodwick (1847), 10 Q. B. 517; Benson v. Duncan (1849), 3 Ex.

644.

(e) The Chasca (1875), L. R. 4 A. & E. 446.

(f) Kay v. Wheeler (1867), L. R. 2 C. P. 302; Laveroni v. Drury (1852), 8 Ex. 166. Cf. Pandorf v. Hamilton (1887), 12 App. C. 518; Dale v. Hall (1750), 1 Wils. 281, has decided that "rats" are not the "act of God," on which see Article 80, note (e).

(g) Buller v. Fisher (1800), 2 Peake, 183.

(h) Lloyd v. General Colliery Co. (1864), 3 H. & C. 284.

(i) The Xantho (1887), 12 App. C. 503, overruling Woodley v. Michell (1883), 11 Q. B. D. 47. The decision of the C. A. in S. S. Garston v. Hickie, Borman (1886), 18 Q. B. D. 17, that such a collision is a peril of navigation is now unnecessary. (j) Lawrence v. Aberdein (1821), 5 B. & A. 107; see also Tatham v. Hodgson (1796), 6 T. R. 656,

waves, and in rough weather were damaged by salt water. Held, that the improper stowage took the damage out of the exception (k).

Case 6.-Owing to bad weather a ship's hatches were kept closed, and the cargo putrefied. Held, that improper stowage and lack of ventilation took the case out of the exception "perils of the seas" (1).

Case 7.-Goods were shipped with an exception "all and every the dangers and accidents of the seas aud navigation." While the ship was discharging her cargo in dock, moored to a barge and a lighter, she capsized, owing to ropes breaking, and the goods were damaged. Held, a "danger of navigation" within the exception (m).

Case 8.-Goods were damaged by sea water let into the hold by the parratrous act of the crew in boring holes in the ship. Held, not a loss by perils of the sea (n).

Case 9.-Goods were damaged on the voyage by rats. The shipowner, who had two cats and a mongoose on board and had employed a professional ratcatcher, was found to have taken every precaution. Held, that such damage by rats was not a peril of the sea or of navigation (o).

Case 10.-On a voyage rats ate a hole in a leaden pipe, and so let seawater into the ship, damaging the cargo. Held, a peril of the sea (p).

Case 11.-A ship was fired into in mistake for an enemy, and sea water entered through the shot-holes. Damage done by such sea water is a peril of the sea (q).

Case 12. A donkey-engine accidentally exploded: Submitted, that if the explosion damaged goods directly, such damage would not be a peril of the sea; but that if it admitted sea water to the goods, the damage in that case would be a peril of the sea (r).

Article 84.-Collision.

This exception in bills of lading, which also except "perils of the sea," was formerly held to protect the shipowner from damage caused by the negligence of another ship, for which he otherwise would have been held liable, on the authority of

(k) The Oquendo (1878), 38 L. T. 151; see also The Catherine Chalmers (1875), 32 L. T. 847.

(1) The Freedom (1871), L. R. 3 P. C. 594, 603; see also The Figlia Maggiore (1868), L. R. 2 A. & E. 106. Where goods properly stowed putrefy through extraordinary delay caused by bad weather, semble, that the shipowner will not be excused by the exception "perils of the sea"; though he may be by the plea of inherent vice in the goods themselves: such damage would not be a peril of the sea for which underwriters would be liable. See Taylor v. Dunbar (1869), L. R. 4 C. P. 206; Tatham v. Hodgson, v. s.; Pink v. Fleming (1890), 25 Q. B. D. 396.

(m) Laurie v. Douglas (1846), 15 M. & W. 746; see The Accomac (1890), 15 P. D. 208; cf. Devaux v. l'Anson (1839), 5 Bing. N. C. 519, as criticised by Lord Herschell, 12 App. C. 497.

(n) The Chasca (1875), L. R. 4 A. & E. 446.

(0) Kay v. Wheeler (1867), L. R. 2 C. P. 302.

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

(9) Cullen v. Butler (1816), 5 M. & S. 461, as corrected by Lord Herschell, 12 App. C. 509.

(r) Thames Ins. Co. v. Hamilton; The Inchmaree (1887), 12 App. C. 484; Hamilton v. Pandorf, v. s.

Woodley v. Michell (8). Now that Woodley v. Michell has been overruled in The Xantho (t) and a collision, unless caused by negligence of the shipowner's servants, is a peril of the sea, the exception "collision" appears almost meaningless.

Semble, in bills of lading which do not except "negligence of the shipowner's servants," it throws upon the shipper the burden of proving such negligence (u).

The result is, that a bill of lading excepting perils of the sea and negligence, covers all collisions, except those caused by negligence of the owner himself. A bill of lading excepting perils of the sea and collision covers all collisions, except those caused partly by negligence of the carrying ship, and throws the burden of proving such negligence on the shipper. A bill of lading, excepting perils of the seas only, covers collisions occurring without negligence of the carrying ship, but probably compels the shipowner to prove the absence of negligence (v).

Article 85.-Pirates, Robbers by Land or Sea, Thieves.

The exception "robbers" refers to robbers by violence external to the ship (w), and does not include secret theft (x).

The exception "thieves" refers to thieves external to the ship (x).

Theft or mutinous seizure by the crew, if reasonable precautions have been taken to prevent them, are probably barratry.

Case 1.-A box of diamonds was shipped with the exceptions, "pirates, robbers, thieves, barratry of master and mariners." The box was stolen before delivery; there was no evidence to shew by whom. Held, that thieves meant "thieves external to the ship." That even if theft by the crew was barratry, still as the shipowners must prove the loss to fall within one of the exceptions (y) (and it might have been the act of a

(s) Woodley v. Michell (1883), 11 Q. B. D. 47. When the other ship is negligent, her owner will be liable to the shipper in an action of tort; and the fact that her owner is also the owner of the carrying ship, and protected by the exceptions in the bill of lading, will not help him: Chartered Bank v. Netherlands Co. (1883), 10 Q. B. D. 521.

(t) (1887), 12 App. C. 503.

(u) See per Lord Herschell, 12 App. C., at p. 512; Czech v. General Steam Co. (1867), L. R. 3 C. P. 14.

(v) The Xantho, at trial, 2 Times L. R. 704.

(w) Rothschild v. Royal Mail Co. (1852), 7 Ex. 734. The phrase "assailing thieves" is sometimes used..

(x) Taylor v. Liverpool S. S. Co. (1874), L. R. 9 Q. B. 546.

(y) Semble, that if the shipowner had proved theft by the crew, i.e. primâ facie barratry, the onus of proving negligence of the owner or master would then be on the shipper.

passenger, who was certainly not within the exceptions), the shipowner was liable (yy).

Case 2.-Goods were shipped from P. to London, under exceptions, robbers, the dangers of the seas, roads, and rivers." The goods were stolen in transit by rail from Southampton to London. Held, that "robbers" meant robbers by violence, and the shipowner was liable (zz).

Case 3.-Goods were shipped under exceptions "pirates, robbers, or thieves of whatever kind, whether on board or not, or by land or sea." Goods were stolen after shipment by one of the stevedore's men employed by the ship. Held, the exception did not apply to thefts committed by men in the service of the ship (aa).

Note.-Loss by pirates has been held a peril of the sea, so the advantage of the exception "pirates" is not very great. It however relieves the shipowner of the burden of proving that the loss was not caused by his negligence (bb). Mutinous seizure by the passengers has been held "piracy" under an insurance policy (a).

The cases above are sometimes met by such exceptions as "thieves, whether on board or not," "pilferage," or "plunder of goods by crew or stevedores." Many bills of lading, however, adopt the cases by inserting the exception, "thieves by land or sea, but not pilferage."

Article 86.-Loss or Damage from Leakage (b), Breakage, Heat, Sweat, Rust, &c.

If reasonable care is used in the stowage of goods, this exception protects the shipowner from liability for any damage or loss to the goods which leak, break, heat, sweat, rust, &c.

It does not by itself protect him from liability for damage resulting from negligent stowage (c), (though it throws the burden of proving such negligence on the

(yy) Taylor v. Liverpool S. S. Co. (1874), L. R. 9 Q. B. 546.

(zz) Rothschild v. Royal Mail Co. (1852), 7 Ex. 734. The phrase "assailing thieves" is sometimes used.

(aa) Steinman v. Angier Line (1891), 1 Q. B. 619.

have now widened their exception to meet this.

Some of the large lines

(bb) Czech v. General Steam Co. (1867), L. R. 3 C. P. 14.

(a) Palmer v. Naylor (1854), 10 Exch. 382.

(b) An attempt to limit "leakage" to "ordinary leakage," said by the custom of trade to be one per cent., failed in Ohrloff v. Briscall (1866), 4 Moore P. C., N.S. 70, 77.

(c) Phillips v. Clark (1857), 2 C. B., N.S. 156, see per Willes, J.

shipper (d), nor from liability for damage to goods from the leakage, &c., of other goods (e).

Case 1.-Goods were shipped, "to be free of breakage, leakage, or damage." On discharge the goods were found damaged by oil. There was no oil in the cargo, but oil was used in the donkey-engine in an adjacent part of the ship. Held, that the exception dil not relieve the owner from liability for the negligence of his servants, but threw the burden of proving such negligence on the shipper (d).

Case 2.-Sugar was shipped "not liable for leakage." It was damaged by leakage from other sugar which accumulated owing to insufficient means of drainage. Held, that the accumulation of leakage was the cause of the damage, and that the exception did not cover this (ƒ).

Case 3.-Palm-baskets and barrels of oil were shipped "not accountable for rust, leakage, or breakage." The oil leaked and damaged the palmbaskets. Held, the exception only covered the leakage of the oil, and not the damage to the baskets by such leakage (9).

Article 87.-Fire.

This exception by itself will only protect against fires not caused by the shipowner's negligence, as in stowing cargo improperly, but it will throw the burden of proving such negligence on the shipper (d).

If a fire results from spontaneous combustion, due to the dangerous condition of the goods, of which the shipowner could not reasonably know, this exception will protect him, but shippers of other goods damaged will have their remedy against the shippers of the dangerous goods (¿).

Fire caused by lightning will be an "act of God."

(d) A. in Czech v. General Steam Co. (1867), L. R. 3 C. P. 14. Craig v. Delargy (1879), 6 Sc. Sess. Cases, 4th Ser. 1267.

(e) The Nepoter (1869), L. R. 2 A. & E. 375; Thrift v. Youle (1877), 2 C. P. D. 432. This source of liability is often met by an exception of "contact with or smell or evaporation or taint from other goods;" or "injurious effects from other goods."

(f) The Nepoter (1869), L. R. 2 A. & E. 375. Case 3 shews that the exception did not cover the damage by leakage, even without accumulation.

(g) Thrift v. Youle (1877), 2 C. P. D. 432. So "rust" only covers rust of the goods themselves, not damage done by contact with other rusty goods: Barrow v. Williams (1890), 7 T. L. R. 37.

(i) See ante, Article 31. The special exceptions "spontaneous combustion, burning from heat of machinery," are sometimes found; as also an exception protecting the shipowner against fire, at any time while the goods are in his custody, whether afloat or ashore. The exception "fire on board" does not relieve the shipowners from the liability for general average contribution to the owner of goods damaged by water used in extinguishing a fire on board. Schmidt v. Royal Mail Co. (1876), 45 L. J. Q. B. 646.