Rufus Wheeler Peckham

“ On February 20, 1891, all the underwriters on the cargo, including this company, agreed in writing that the payment of a certain amount of freight on the damaged cargo, and the acceptance and sale of the cargo by the owners, should be without prejudice to any of the rights or claims the shippers of the cargo might have against the insurers, and should not be considered a waiver or acceptance of an abandonment, nor should it prejudice any defense that the insurers of the cargo might have under their contract of insurance. ”

“ One clause reads, 'Free of particular average unless caused by stranding, sinking, burning, or collision;' the other clause reads, as in this case, 'Free of particular average unless the vessel be stranded, sunk, burned, or in collision.' The clause in use in this certificate was termed the 'English clause.' Many agents of English companies offered either clause, and the form in use in this case was regarded as a better clause for the insured than the 'caused by' clause. ”

“ I have had great difficulties in bringing my mind to decide this, because the consequence of considering this as an exception to the memorandum, as the words import, is this: that if a ship be stranded, and the cargo suffers no damage whatever, and afterwards the ship meets with bad weather, and the cargo sustains an average loss of 90 per cent., the underwriters are answerable for the whole of that average loss when it is admitted that no part of it happened in consequence of the stranding. ”

“ From this review of the authorities in England, there can be no doubt that if a ship be once in collision during the advanture, after the goods are on board, the insurers are, by the law of England, liable for a loss covered by the general words in the policy, although such loss is not the result of the original collision; and, but for the collision, would have been within the exception contained in the memorandum, and free from particular average as therein provided. ”

“ The peculiar law in relation to the importation of damaged wheat into Portugal, and the seeming certainty that to carry it there under the circumstances would result in a greater loss to the insurers then to sell the wheat in Boston, renders it quite clear that it was to the interest of the insurers, as well as the owners, to terminate the voyage, and sell the wheat for the benefit of all concerned at Boston. ”

“ Nevertheless arrangements were entered into with persons at Boston, and such of the grain as was capable of being so treated was cleaned, separated, and generally reconditioned, so far as possible; and a survey made on the 21st of February showed that as the result of this treatment the wheat had been considerably improved, and saved from further deterioration, making it of greater market value than before the treatment. ”

“ Mr. Justice Grose said: 'And that brings it to the true construction of the memorandum, and of the exception to it, whether the underwriters be or be not liable for an average loss where there is a stranding, though no part of the loss arise from the stranding of the ship. ”

“ Pond, 13 Pet. 65, in which Mr. Chief Justice Taney, in delivering the opinion of the court, said: 'The general principle in relation to contracts made in one place to be executed in another is well settled. ”