state, he fixes his loss as against himself; and the claim under the policy will be for the estimated cost of the repairs, less the usual deductions for improvement, provided that the amount so stated is not in excess of the actual depreciation in the value of the vessel as ascertained by the sale (a).

VI.—WEAR AND TEAR.

The meaning of this expression, as applied to claims under the policy of marine insurance has already been explained (b); and it has been shown that in addition to literal wear and tear, consisting of the gradual deterioration of the hull and materials of a vessel by use in navigation, there is a technical wear and tear, consisting of a certain species of loss, which, though actually fortuitous, is accounted ordinary. The characteristic feature of this species of loss is, that it is the result of an ordinary strain enhanced by the operation of sea perils; and the reason for its exclusion from particular average is the practical difficulty in defining when an ordinary strain ends and an extra strain begins, as well as in deciding what damage is referable to each cause. The loss or damage treated as technical wear and tear was formerly much more extensive than it now is, and included, not only the splitting or carrying away of sails by the wind, and the straining or chafing of the rigging, but also the springing of masts or yards, the parting of mooring ropes or ground tackle, the breaking down of the windlass, and injury to the ship's bottom below water (unless caused by grounding, or contact with some substance other than water), however severe the weather might have been in which these damages occurred (c). These restrictions upon the underwriters' liability have now been removed, with the exception of loss or damage to sails and rigging, the allowance or rejection of which is determined by the practical rules already stated (d).

(a) Pitman v. The Universal Marine Insurance Co., L. R. 9 Q. B. 192. (b) Ante, Ch. V., s. 3.

(c) Stevens on Average, pp. 150,

158; Hopkins' Handbook of Average, 3rd ed., p. 152.

(d) Ante, Ch. V., s. 3.

There are, however, other instances of loss or damage falling under the denomination of wear and tear which have to be noticed. Injuries to pumps or donkey-engines, caused by excessive use, are disallowed under that head, though the enhancement in use were necessitated by sea perils. This exception does not apply where the damage is the result of external violence, such as grounding or blows of the sea. Again, the fracture of a steamer's shaft, or the breaking down of other portions of her machinery are not recoverable, if resulting from deterioration by age or use. As to whether the damage in any particular case is attributable to wear and tear, or to the operation of the perils insured against, is a question to be decided by the evidence. The bursting of a steamer's boiler owing to its being worn out is not covered by the policy, so far as regards the boiler itself; but the explosion being a peril insured against, any loss or damage which it may cause to the vessel, irrespective of the boiler, is recoverable (e). In the case of the parting of mooring ropes and ground tackle, or the straining of a ship's bottom, to entitle the assured to recover, it must be shown that the injury was the result of an extra strain, resulting from a peril insured against; as, in the absence of such proof, the presumption would be that it was due to wear and tear or original defect. The cost of repairing or renewing masts, spars, or other woodwork, on account of decay, or the cost of similarly restoring iron-work on account of corrosion, is excluded from particular average.

VII.-ORIGINAL DEFECT.

Underwriters are not liable for any loss which is the immediate result of an original defect in any part of the hull or materials. For instance, where a chain parts owing to a defective link, the consequent loss of the anchor and chain is not recoverable. Again, there may be an original flaw in the welding of a stern

(e) West India and Panama Telegraph Co. v. The Home and Colonial

Marine Insurance Co, 4 Asp. Mar.
L. C. 341.

post, shaft, or other part of the hull or machinery, which, though at first so slight as to be imperceptible, gradually reveals itself, and becomes enhanced by the working of the vessel at sea, until it culminates in a break-down of the part affected. In such a case, the cost of making good the injury will not form the subject of a claim under the policy.

VIII.—UNDUE EXPOSURE TO RISK.

As a general principle, it is reasonable that underwriters should not be held accountable for the loss of articles improperly placed in insecure situations. Upon that ground, the recognized usage is based, which excludes from particular as well as general average water casks or tanks carried on a ship's deck, as also warps or other articles, when improperly carried on deck. It is not deemed improper for warps, chains, &c., to be on deck, when the vessel is near port, either inward or outward bound; as, in that situation, the gear would either shortly be required in use, or, having been recently in use, a reasonable time would be allowed for its stowage below when opportunity offered. The Custom of Lloyd's formerly extended to the exclusion of boats slung upon the ship's stern; but, in a case where it was proved that the slinging of a boat upon the quarters was customary in the trade, the usage to disallow the loss was rejected (ƒ), and it is now obsolete.

IX.-SEA DAMAGE AND ORDINARY DETERIORATION COMBINED.

When the repair of sea damage is combined with that of ordinary deterioration, it is often a work of considerable nicety for the adjuster to resolve the complications which ensue, and refer each description of damage to its proper head.

Preparatory to the consideration of a few of the cases of

(f) Blackett v. Royal Exchange Assurance Co., 2 Cr. & Jer. 244.

mixed damage which most frequently occur, it will be advisable to inquire how far such matters can be dealt with upon general principles. 1. In the first place, it is to be remembered that where deterioration of any kind exists to such an extent as to make a vessel unseaworthy on sailing, the risk under a voyage policy will not attach (g). 2. Where the warranty of seaworthiness is not implied, or has been satisfied, the underwriters are liable for all loss or damage proximately caused by the perils insured against; and there is no other condition of the ordinary policy, whether express or implied, which exonerates underwriters from loss or damage by the perils insured against, on the ground that the peril only became operative through the weakness of the thing exposed to it (h). 3. Deterioration by wear and tear is provided for by the deductions for improvement; but when an article is worn out, those deductions are inapplicable, as the article is practically lost by the ordinary deterioration (i). 4. The liability of the underwriter for the repair or renewal of any part of a ship's hull or materials lost or damaged by the perils insured against, is unaffected by the presence of ordinary deterioration, excepting where that deterioration is so extensive, that would have involved the condemnation of the subject of it, irrespective of the further injury, in which case, there is no liability on the part of the underwriter, as the shipowner has sustained no loss by the perils insured against.

In applying these principles, we may first take a case, where the combined damage was so great as to amount to a constructive total loss of the ship. A ship, insured with the clause “allowed to be seaworthy for the voyage," encountered a violent storm, in consequence of which she was much damaged and had to put into a port of refuge. On examination, it was found that many of the beams were broken, and many of the bolts and fastenings loosened; and that, the vessel being old, and in many parts

(g) Ante, Ch. I., s. 5.

(h) Dudgeon v. Pembroke, ante, Ch. V., s. 2; cf. Bishop v. Pentland, 7 B. & Cr. 219.

(i) Where, by special clause, these deductions are dispensed with, in case

of particular average, the same principle will hold good; as the liability for wear and tear, if any, is, in such a case, simply transferred from the assured to the underwriter.

decayed, the decayed parts could not be again made use of, as they would not bear rebolting, but would require to be replaced with new timbers. There was however no reason to doubt that the decayed parts were strong enough to have enabled the ship safely to perform the voyage, had it not been for the heavy weather encountered. It was estimated that the aggregate cost of the necessary repairs would exceed the value of the vessel when repaired. On an action upon the policy to recover for a constructive total loss, the learned judge who tried the case left it to the jury to say, whether the cost of the repairs of the damage arising from the perils insured against would have exceeded the value of the vessel, when repaired, directing them, if they were of that opinion, to find for the plaintiffs. The jury returned a verdict for the plaintiffs. A new trial was then moved for, on the ground that the jury should have been directed, in considering the repairs that were necessary, to exclude from the estimate all such repairs as the decayed state of some parts of the ship made necessary; but, the Court held that there had been no misdirection, adding that, having carefully examined the evidence, they saw no ground to suppose that any repairs had been included in the estimate which were not fairly referable to perils of the sea (j). In this case, it is to be observed that the deterioration which the vessel had suffered by wear and tear was, in effect, cast upon the underwriter, as the necessity to make it good arose from the operation of the perils insured against. Where, however, the necessity to make good inherent defect arises independently of the perils insured against, it would appear that the cost of repairing the defect cannot be taken into account in computing a constructive total loss (k).

We have next to consider the application of the foregoing principles to the adjustment of particular average. For the sake of illustration, let it be supposed that a mast has been sprung by a peril of the sea, and has likewise an inherent defect. If that defect existed on the sailing of the vessel to such an extent as to render her unseaworthy, the risk under a voyage

(j) Phillips v. Nairne, 4 C. B. 343.

(k) See Arnould, 4th ed., p. 938.