burrow wilson and another versus smite Tuesday that July SC black insurance  free from average unless general do not extend to the damage receive by the  good in a storm refer to price v ai ship c association Q b d this be a action  on the case bring upon a policy of insurance for the recovery of S d per cent  be the damage receive by a cargo of wheat on board the Boscawen insure at and  from Lancaster to Rotterdam which wheat be value by agreement at S per quarter  the policy be in the ordinary form the premium be five guinea per cent and in  case of loss the assure to abate per cent and the assurer to be free from  average under three pound per cent unless a general or the ship shall be  strand b the policy be thus underwritten N B corn and fish be warrant free  from average unless general or the ship be strand sugar tobacco hemp flax hide  and skin be warrant free from average under five pound per cent and all other  good free from average under three pound per cent unless general or the ship  be strand warrant well in port the that day of February the defendant  underwrite this policy for on that February the defendant have plead the  general issue the cause come on to be try at guildhall London on the that of  February before Lord Mansfield the ship with her cargo be wheat belong to the  plaintiff sail from Lancaster the first of February after her departure from  Lancaster and before her arrival at Rotterdam to wit on the d day of February  sail and proceed on her voyage she meet with a violent storm and be by and  through he force of wind and stormy weather oblige to cut away and leave her  cable and anchor for the safety of the ship and cargo and be also great damage  and oblige to run to the first port be Liverpool to refit and that the expense  of refit the ship amount to S per cent that the hatch of the say ship be not  open at Liverpool but the ship be refit on the day of burrow February sail  from Liverpool for Rotterdam with the cargo and arrive thereon the day of  February and there land her cargo of wheat that upon unload the wheat it  appear that it have receive damage by the say storm to the amount to S d per  cent the single question be upon the true construction and meaning of the word  free from average unless general or the ship be strand whether the plaintiff  can under the circumstance of this case recover in this action for the damage  of S d per cent the S per cent not be dispute on Friday that of may last Mr  don argue for the plaintiff the insure and Mr Morton for the defendant the  underwriter Mr Dunnings argument tend in general to show that these word  amount to a condition which condition will render it free from average unless  in two event videlicet a general average or the strand of the ship but if  either of these two event happen then to be liable to average whereas Mr  Morton endeavour to show that they ought to be consider as a exception only  videlicet to be free from average in all other case but these two both agree  in this fact that a storm arise and that the ship be oblige to cut away her  cable and leave her anchor and that the wheat be great damage and that the  average loss on the wheat will amount to a large proportion per cent neither  side cite any commonlaw case Mr don say that this clause now in question as to  its construction and meaning be first introduce about the year before which  time he say insurer be liable to every injury that happen to the good insure  this clause or memorandum be introduce he say to deliver the insurer from  small average and be think to be a better method of attain that end than adapt  the a if the word unless have not in this case be construe a exception but  condition the insure will have be gainer by the ship be strand b magens v  Weskett durn burrow er p premium to the nature of the commodity as it may  happen to be more or less liable to perish or suffer which method will have  make burrow the policy too much complicate and which the Dutch have at first  try but afterward alter he say that both the insurer and insure ought to  resort to the body of the policy from whence the meaning of the party will  appear to be that no average under per cent shall be demand upon some  commodity nor under per cent upon other and that corn and fish shall be  subject to no average at all as be more perishable and damageable commodity  unless in one or two case videlicet where there shall happen a general one or  that the ship be strand general average must arise from some act do to avert  great danger or some distress where part be destroy to save the whole and  therefore all ought to contribute here be a general average within the true  meaning and intention of this policy ordinance of France lib c p here one of  the event have happen namely a general average and therefore the warranty free  from average can not take place at all in this case Mr Morton argue that the  meaning and intention of this policy be that the insurer shall not be  answerable for any partial loss or damage to the good insure the word in  question carry a plain and obvious sense and be a exception out of the  contract their construction stand upon its own bottom a general average be la  general contribution of the owner of the good on board where part be destroy  to preserve the whole in proportion to their concern if another man good have  be throw overboard to save the whole cargo the owner of the wheat must then  have be liable to general average in proportion to the value of their wheat if  the ship have be strand the insure may have abandon upon a general average the  insurer stand in the place of the owner of the good and upon a total loss he  be entitle to what may be save a average be a contribution by nonsufferers  towards the loss of those who have suffer for the preservation of the whole  but there be nothing in the present case that can render the insurer liable to  a average of per cent on this wheat thus insure by they they be liable only to  a general average arise from the loss of the cable and anchor they can not be  liable to a double general average Mr don in his reply observe that this can  burrow not be consider as a exception because it be not part of what have be  before specify Ulteritis concilium this case be argue a second time on Tuesday  the that of June by sir Fletcher Norton attorneygeneral for the plaintiff and  Mr sergeant Burland for the defendant sir Fletcher first observe that strict  the plaintiff will be entitle to recover upon the general average yet  acknowledge that the question mean to be leave to the court turn only upon the  construction of the word N B at the bottom of the policy I free from average  unless general or the ship be strand and he contend that the true construction  must be this that wherever there be a general average or in case the ship be  strand all other partial average shall if either of those two event happen be  let in upon these perishable good just as if there have be no clause of  freedom from average at all such clause mean nothing more he say than to guard  the insurer against such inherent loss as may arise from the nature of the  commodity insure it mean that the insurer shall be free from all such petty  loss too as necessary arise in the course of the voyage but it can never mean  to discharge the insurer from special injury by storm and wind or from all  averagelosses arise within the ordinary peril of the voyage or that where  there be a general average which the ship fraught and cargo must all be  contributory to he shall only be liable to that be it ever so trifle and  inconsiderable for this will be no insurance at all the underwriter will  accord to this narrow construction run little or no risk upon a insurance of  perishable good he assert that the practice of merchant and the determination  of court of justice be both of they agreeable to the construction that he  contend for and moreover that the premium take upon these insurance bear  proportion to this great risk he mention a case before Lord Ch I rider in  between Cantillon and burrow er p the London insurance company burrow upon a  insurance of corn with such a clause as this be and the ship be strand the  plaintiff the insure recover a average loss of about per cent for Lord Ch I  rider and a special jury look upon this as a condition and that by the ship be  strand the insurer be let in to claim his whole partial averageloss after  which determination that company he say have alter that clause in their  insurance by omit the word or the ship be strand where the ship be strand the  damage may happen to be such as will render it impossible to distinguish how  much of it arise from the strand of the ship and how much of it from the  perishable nature of the commodity Mr sergeant Burland contra on behalf of the  defendant contend that these word be to be construe as a exception not as a  condition the insurer be not to pay any average at all unless in case of a  general calamity it be a general discharge from all average whatsoever except  in the two case particular specify which two specify case be quite distinct  and unconnected the general contribution and particular average have no  connection with each other the strand of the ship be consider as a total loss  and the insure may abandon he allege that the premium be pay in proportion to  his construction and not to sir Fletcher sir Fletcher in reply with regard to  the premium the premium here take be adequate to the common and ordinary  premium therefore so also ought the risk to be whereas upon their construction  the underwriter will be upon a better and more advantageous foot upon insure  perishable good than upon insure bale good though the premium he receive on  each be the same here be a connexion between the averageloss in particular and  the general average for the same storm that occasion the general average be  also the occasion of the particular damage thus far indeed be true but no  further that we can have have no claim to any average at all unless one of  burrow two specify case have happen but as one of they have happen we be  thereby let in to claim particular average the case be order to stand over for  the opinion of the court and on this that of July Lord Mansfield deliver it to  the follow effect after have state the case he repeat the observation and  argument insist upon by the counsel on the part of the plaintiff that the  warranty to be free from average ought only to take place if neither of the  two specify event shall happen but if either of the two specify event shall  happen if either the ship shall be strand or any thing shall happen which  create a general average then the warranty to be free from average be thereby  discharge for it be argue and insist upon by they that the word be in the  nature of a condition but they be not to be construe as a condition in the  sense that the counsel for the plaintiff will have it understand policy of  insurance accord to their present form be very irregular and confuse a  ambiguity arise in they from their use word in different sense particular in  the use of this word average it be use to signify a contribution to a general  loss and it be also use to signify a particular partial loss sir Henry Spelman  in his glossary under the word Averagium say it be defeat quod vehend  commodity to fall upon ut fluxio vines in a vineyard in rows grain corruption  merci in season banishment who to put to transportation cost relative other  expense de averagiis merci e ship projectar distribuend old times to have to  cause to stand non impress pron  interrog  exemplar at I extat for my own part  I never meet with that statute whether it be consider in one or other of these  sense c it will not serve the c accord to magens page at the end of the note  and note that the form of the insurance in this case only express what be  always agreeable to the custom in many other country and ever since in some  instance at least to the form of insurance here burrow er p turn of the  plaintiff in the present case for if it here signify contribution the insurer  be to be free from contribute unless where the contribution be general if it  signify loss then plain it be warrant free from all particular loss the  insurer be liable to all loss arise from the ship be strand and in burrow all  case where there be a general average all other partial loss be exclude by the  express term of the policy the London assurance company do in all their policy  leave out this clause about the ship be strand and only say I free from  average unless general d the word unless mean the same as except and be not to  be construe as a condition in the sense that the counsel for the plaintiff  will put upon the word condition the word free from average unless general can  never mean to leave the insurer liable to any particular average it be clear  that the plaintiff ought not to recover and that the judgement ought to be for  the defendant judgement for the defendant