Imágenes de páginas
[ocr errors][ocr errors]

parts of the will, and yet if the signature in such case That this rule is a satisfactory observation of the
is placed below them, it is at the end of the will statute will appear on examination. What does the
within the meaning of the statute. So too ordinarily testator in a case like the above present to the wit-
what is called the attestation clause when it follows nesses? What he declares it to be, his will. Does not
the signature is no part of the will. It is not essential bis declaring it to be his will amount to an undenia-
to the validity of a will, and as it follows the signa- ble acknowledgment that every portion thereof is his
ture it cannot be taken as a part thereof. But if the act, the signature as well as the bequests? Without
testator choses to insert the attestation clause before the signature the instrument could not be his will.
his signature, thus making it a part of the instrument, Why then does he not acknowledge his signature
then like any other matter contained in the will, which when he publishes as a will an instrument to which
does not relate to the disposition of property, it becomes his signature must be affixed to make it what he de-
a part of the instrument called a will. If the testator, clares it to be?
beneath the disposing part of the will, anù before his The other side of the question is taken in Mitchell v.
signature, should insert the Apostles' Creed or the Mitchell, 16 Hun, 97, and affirmed by the Court of Ap-
Lord's Prayer, it would be part of the instrument peals. 7 N. Y. 596. In this case the testator pre-
called a will, and although it would intervene between sented his will to two persous, and asked them to
the signature and the dieposing part of the will, it sign it. One of them took the paper and saw that it
could not be contended that the will was not sub- was a will, and saw the testator's signature thereto
Acribed at its end."

affixed. The testator then said: “This is my will; I It will be observed that the court, in deciding this want you to witness it," and both thereupon signed as case, has taken a very liberal and common-sense view

witnesses. The court held that there was no ackuowl. of the statutory requirements. It may be said that a edgement of the signature. On appeal the decision very techvical interpretatiou of the statute of wills is was confirmed, by four judges voting for affirmance, apt to do as much harm as good, to perpetuate unin- and three dissenting. Here the court took the ground tentionally as many frauds upon the testator as it may that a specific acknowledgment must be made. As it prevent.

will be seen further on, the tendency of the court is The next requirement of the statute is that the sign- to accept a substantial compliauce with the statute as ing by the testator shall be done in the presence of satisfactory. two witnesses, or else that the signature shall be ac- In one of the latest reported decisions of the Court knowledged to two witnesses. To satisfy the requi- of Appeals on this particular point Mitchel v. Mitchel, site that the signing shall be done in the presence of is cited, but the decision referred to is the opinion of witnesses, it is not enough that the testator and the a court not unanimous on the question. Lane v. witnesses were all together in the same room or place. Lane, 95 N. Y. 499, and in the late case of Will of HigThe statute intended that the witnesses should see the gins, 94 id. 558, the court, speaking on this point, says: testator sign or should have had their attention di- "The signature was plainly visible upon the instrurected to the signing while the same was being done. ment itself, and the testator having requested Jones Gardiner v. Raines, 3 Dem. 98, and cases cited.

and Stoker to subscribe their names to it as witnesses, It is not requisite however that both witnesses shall and he having ackuowledged the same to be his last be present at the signing of the will; if one be present, will and testament, the statute was fully complied and the signature is afterward acknowledged to the with in this respect within the decisions of this other, the statute will be satisfied. Hoysradt v. Kingo | court,” and in Hill v. Phillips, 98 N. Y. 267, wo find man, 22 N. Y. 372.

the court expressing its views on this point as follows: As to what is a proper “ acknowledgmeut” of the

“The exhibition of the will and of the testator's sigtestator's signature, the law is somewhat unsettled. nature attached thereto, and his declaration to the In the determination of this question the court seem witness that it was his last will and testament, and to have regarded the matter from different points of his request to the witness to attest the same, were, we view. Some have acted on the theory that the stat

think, a sufficieut ackuowledgment of the same." ute was intended to protect a testator from fraud, and It is not rasb to state that the rule in Baskin v. Basthat whenever the circumstances showed that the in- kin still coutinues to be and is likely to remain the tention of the statute had been observed and its ends rule of the Court of Appeals. accomplished, a substantial compliance with its re- Next in the order of the requirements of the statute quirements was to be deemed enough. Others again is the “publication" of the instrument. This must have treated the right to make a will as a statutory in

be done at the time of the siguing or the acknowledge stitution, springing from and living upon the statu

ment of the signature. What is a proper “publicatory, and seeming to believe that testamentary rights tion" has been decided frequently and uniformly and were no favorites of the law, have refused probate to in the consideration of this question the courts have a will whenever the very letter of the law was not ob

cited with considerable liberality of view, and have served. As a matter of legal principle, it may be

required but a substantial compliance of the statute. safely said that the first theory is more in barmony Their decisions may be generalized as follows: No exwith the spirit of the law in regard to wills, which act words of publication are required, it being enough were erer its favorites, and more conducive to the pre- that the testator makes knowu to the witnesses in ventiou of fraud upon the testator's intentions. some way, by acts or conduct, that the instrument is Thus in Baskin v. Buskin, 36 N. Y. 418, as in Peck

intended and understood by him to be his will. Lane v. Cary, 27 id. 9, the court laid the following rule:

v. Lane, 95 N. Y. 491. If the publication be expressly “When the testator has produced a paper to which he

made, it need not proceed from the testator himself, bas personally affixed his signature, requests the wit

but may be made by some one acting for him at his renesses to attest it and declare it to be his last quest. Gilbert v. Knox, 52 N. Y. 125. will and testament, he does all that the law re- The extent to which the doctrine of "substantial quires. It is enough that he verifies the subscription compliance” with the statute has been carried, and as authorized, without reference to the form in which the tendency of the court in regard thereto, may be the acknowledgment is made; and there could be no clearly seen in the late case of the Matter of Beckett, more unequivocal acknowledgment of a signature 35 Hun, 447; affirmed by the Court of Appeals, 20 W. thus affixed, than presenting it to the witnesses for at- S. 470 (and probably 103 N. Y.). In this case the testation and publishing the paper so subscribed as testator said nothing whatever to the witnesses at the his will."

time they signed it as to the character of the lustru

[ocr errors][merged small][ocr errors][ocr errors][merged small][merged small][ocr errors]


ment. The witnesses however knew its nature. One fore execution, the onus probandi, that it is fraudulent of them had conversed with the testator a day or so or unauthorized, is throwy upon those who make ang previous in relation to a will, and knew that the in- such clain. And whether or not such interlineation strument presented to her was the will about which be voted as above, it is a question of fact for the they bad conversed. The other witness kvew that court to decide on the evidence whetber or not the the instrument was a will from the various circum- were made after execution, Crossman v. Crossmo. stances attending the execution.

ut supra. It was held, that if the testator communicates the By section 2611 of the Code of Civil procedura our necessary information in a manner capable of convey- courts are empowered to admit to probate wills na ing to the minds of the witnesses bis own present cou. executed in pursuance of the requirements of our statsciousness that the paper being executed is his will, it ute, if such wills relate to personal property, and were is a sufficient publication of the same.

made by a resident of this state, without the State, The statute next requires that the witnesses shall and within the United States, the Dominion of Canada sign the instrument in attestation of its execution in or the kingdom of Great Britain and Ireland, and esê. their presence.

cuted according to the laws of the State or country is While this is oustomarily done by signing an “at- which it was made; and if made by a 110n-resident of testation olause,” yet such a clause is not essential to the State, if such will is valid according to the law of the valid execution of the iustrument. Re Philips, 98 the testator's residence. N. Y. 267. The presence of a full attestation clause is This is however but a statutory acknowledgment of however of the highest importance, as in many cases it the rule of law that personal property follows the will enable tbe court to infer a due execution of the domicile of the owner. 2 Kent Comm. 439. instrument. It will, when it is shown that the signa

WILLIAM J. Carr. tures thereto are genuine, prove due execution if the BROOKLYN, N. Y. wituesses are dead. Matter of Kellum, 52 N. Y. 517. And in case the witnesses forget the circumstances, and cannot testify to the details, “a regular attesta- SHIP AND SHIPPING DANGERS AND ACCI. tion clause, if shown to have been signed by the wit

DENTS OF THE SEAS"- DAMAGE nesses and corroborated either by the circumstances

CAUSED BY RATS. burrounding the execution of the instrument, the tes. timony of the witnesses to the fact of due execution ENGLISH COURT OF APPEAL, AUG. 19, 1886. or other competent evidence has been held in many cases to be sufficient to establish a will

PANDORF V. HAMILTON.* signed by the testator, even against the positive evidence of the attesting witnesses to the contrary."

A ship was chartered, and a cargo shipped, under a charter Will of Cottrell, 95 N. Y. 335; Will of Pepoon, 91 id.

party and bills of lading which excepted" dangers and

accidents of the seas." 255. Yet all attestation clause aloue will not prove

During the voyage the cargo

was damaged by sea-water escaping from a pipe og due execution against the positive testimony to the contrary. Wooley v. Wooley, 95 N. Y. 231.

board the ship, owing to the pipe having been gnawed

through by rats. The witnesses must eigu at the “eud” of the will (Re Hewitt, 91 N. Y. 261), and consequently must signi

In an action by the owners of the cargo against the shipafter tbe testator, not before him. Jackson v. Fach

owners to recover the amount of the damage so caused,

held, that the damage was not within the exception, and 801, 39 id. 153. Iu this case it had been contended that

the defendants were liable. the statuto did not necessarily require that the witnesses should sigu after the testator, and that it would be a sufficient compliance with its requirements if the

, signing was all done on the eame occasion and at the The action was brought by the shippers of a cargo same time. The court in its decision (opinion by . of rice to recover damages for injury to the rice on Woodruff, J.) refused to so hold, and took a strict board the defendants' ship, during a voyage from technical stand, deciding that even if the testator | Akyab to Liverpool, caused by sea-water passing were to sign immediately after the witnesses had com- through a hole in a pipe connected with a bath-room pleted their signatures, still there would be no proper in the vessel, the pipe having been guawed through by signing by the witnesses.

rats. While suob interpretation of the statute seems illib- The excepted perils in the bills of lading were “all eral, it must be said that the court supported its views and every dangers and accidents of the seas, rivers, with a very strong argument, and that the rule it pro- and navigation, of whatever nature and kiud 50mulgated is still considered the law of this State. ever."

Now that we have seen the law regarding the for- The excepted perils in the charter party were's the mal execution of a will, it may be necessary to state aot of God and all and every other dangers and accithat codicils are subject to the samo requirements as dents of the seas, rivers, and steam navigation, of wills.

whatever nature and kind soever, and errors of basi. Wills are often executed in duplicate, each copy

gation during the voyage." being as formally executed as the other, and in such a At the trial at Liverpool, it was admitted that all case either copy will be taken as the testator's will, reasonable precautions had been taken to keep down and admitted to probate as the same.

the rats on the voyage to Akyab. however to produce both, so that they may be com- The following questions were left to the jury: pared as to their similarity in all respects, and that it “Were the rats that caused the damage brought on inay appear that the will has not been revoked, as the board by the shippers in the course of shipping the revocation of one would revoke both. Crossman v. rice?" and Crossman, 95 N. Y. 145.

“Did those on board take reasonable precautions to Sometimes interlineations and alterations may ap- prevent the rats coming on board during the shipping pear on the face of the will, and the question will then of the cargo?" arise, were they made before or after execution? There

The jury answered the first question in the negative, is no presumption that such interlineations were made

and the second in the affirmative. after execution.

*17 Q. B. Div. 670. Reversing decision of Lopes, J., 33 Alb. If it be noted in the attestation clause, as made be

Law J. 389.

APPEAL by the plaintiffs from the judgment of

It is proper

[merged small][ocr errors][merged small][merged small][merged small][merged small][ocr errors][merged small][ocr errors][ocr errors][ocr errors][ocr errors]

The amount of the damage was settled by agree- very peculiar, they are much the sanje as they have ment.

been from the beginning. Where documents are in The case was reserved for further consideration, and daily use in mercantile affairs, without any substanafterward Lopes, L. J., gave judgment for the defend- tial difference in form from time to time, it is most ants, holding that the damage was within the excep- material that the construction which was given to tion. 16 Q. B. Div. 629.

them years ago, aud which has from that time been The plaintiffs appealed.

accepted in the courts of law, and in the mercantile Sir Charles Russell, A. G., and Joseph Walton, for

world, should not be in the least altered, because all plaintiffs.

subsequent contracts have been made on the faith of

the decisions. Therefore whether one thinks that one Bigham, Q. C., and J. G. Barnes, for defendants.

would oneselt have come to the same conclusion as LORD ESHER, M. R. This case is one of consider- the judges did in the beginning is immaterial. One able importance. The action is brought by the char- ought to adhere strictly to the construction which has terers of a ship, who are also the holders of bills of beer put upon such documents. lading, for damage done by sea-water to a cargo of Moreover, if those documents, construed as the rice shipped by them and belonging to them. The judges have construed them for many years, have also case was tried before Lopes, L. J., first of all with for many years been applied in a particular way to a jury, and after certain questions had been left to facts similar to those wbich are in question at this day the jury, and been answered by them, by himself in a cause, it is equally material in my opinion to adwithout a jury. His judgment has been given in here to that application, or else mercantile business favor of the defendants on the ground that the becomes wholly uncertain. damage done to the rice was the result of causes Now with regard to charter parties, bills of lading, excepted in the charter party and the bills of lad- and policies of marine insurance, there have been cering.

tain rules of construction determined upon and acThe questions raised therefore are what is the true cepted, and there has been a distinction as to the mode construction of the charter party, and the bills of of construing the first two documents and the tbird. lading, which are in this case identical, and what is With regard to policies of marive insurance a very the reasonable mode of applying that construction to strict rule as to the application of the doctrine of causa the facts of this case? In the charter party and the proxima has been adopted. It was pointed out long bills of lading the exceptions are, “the act of God and ago that if this doctrine of causu proxima, as against the Queen's enemies and all and every other dangers causa remota, is taken in a large sense it is equally apaud accidents of the seas, rivers and steam navigation, plicable to charter parties, bills of lading, and policies of whatsoever nature or kind, and errors of naviga- of marine insurance. One would not seek either as to tion during the voyage." The ressel was chartered a charter party or a bill of lading a cause in the one by the plaintiffs to proceed to Akyab, and there load sense remote, but with regard to policies of insurance a cargo of rice, and the rice was loaded under the the doctrine of causa proxima, or the immediate charter party, and bills of lading were given in the cause, has been much more strictly applied than in the same terms as the charter party. Therefore the rice other two cases; and the difference of construction was shipped under the charter party, and under the has been that in a policy of marine insurance one looks bills of lading at Akyab. During the voyage home to strictly only to the causa proxima or immediate Liverpool, rats guawed through a pipe communicating cause; whereas in the others one looks to that which is with a cistern in the ship, and thereby let in the sea- called in the law books the causa causans, which has water, which damaged the rice.

been interpreted by judges to mean the real effective There was a dispute at the trial as to whether the cause of the damage. All these documents, as I have rats had been allowed to come on board by the ship-said, were constructed originally in a very peculiar pers in the course of shipping the rice at Akyab; this elliptical form of mercantile language. The statement question was left to the jury. Another question was that the shipowner will deliver the cargo in the same put to the jury: "Did those on board take reasonable order as he has received it, excepting the act of God precautions to prevent the rats coming on board dur. and so on, and all and every other dangers and perils ing the shipping of the cargo?” That also was at of the seas, shows that it is a most extraordinary ellipAkyab. The jury answered the first question in the tical form. The exceptions do not describe the damDegative; that is, that the rats were not brought on age, although if the document were construed only board. The second question they answered in the grammatically, they would be rather supposed to doaffirmative, namely, that those on board did take rea- scribe the damage; they describe the cause of the damsonable precautions to prevent the rats coming on age, not the damage. It is necessary therefore to see board during the shipping of the cargo. The learned whether the cause of the damage is one which is exjudge states that at the trial at Liverpool there was no cepted. dispute about the cause of the damage to the cargo; The first cause which may produce the damage is it was agreed that the damage was caused during the the act of God, as it was called in the old times. I voyage by sea-water passing through a hole in a pipe shall not now enter into a discussion, which at one connected with a bath-room in the vessel, such pipe time was rather rife, as to what was the exact meanbeing eaten through by rats. Therefore the cause of ing of the term “the act of God." In the older, simdamage to the rice is, that rats ate through the pipe, pler days I have myself never had any doubt but that thereby letting the water in. The question is, whether it did not mean the act of God in the ecclesiastical on the true construction of the charter party and the and biblical sense, according to which almost ererybills of lading, and applying in the legal way to the thing is said to be the act of God, but that in a merfacte, the cause of the damage is a peril excepted out cantile sense it meant an extraordinary circumstance of the bills of lading and charter party.

which could not be foreseen, and which could not be Now charter parties, bills of lading, and policies of guarded against. But in this case there cannot posmarine insurance are documents which do not mater- sibly be any foundation for any such suggestion ag ially differ from an ordinary daily form of each. As that this gnawing of a pipe by rats and letting in seamercantile business has been enlarged they have dif- water is, within the terms of the bills of lading and fered from time to time, but they do not differ from charter party, the act of God. The real question is day to day, and in their substantial structure, which is whether the cause here could be said to be a caugo

[merged small][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors]

brought about by dangers apd accideuts of the seas. The ship sailed from St. Bartholomew, and arrired It obviously was not a danger or accident of steam safely on the coast of Africa, and began to trade. navigation or an error of navigation. Therefore the Afterward, being about to return, it was found that only term in the bills of lading and charter party under the worms had eaten her bottom, and had destroyed which the cause could be brought, if it is a cause, is it so effectually that the ship could barely get to Cape dangers or accidents of the seas.

Coast, where she was condemned as irreparable. This Now it has beeen long ago beld, that these words case seems to me very strong. The worms had eaten "dangers of the seas" are really the same as perils of the bottom of the ship-no doubt it was a wooden ship the seas, for perils and dangers in the English lang- | in those days-80 as to render her unfit to be ou the uage are synonymous words. Therefore the question seas, so that it was wrong to continue the voyage, and is, whether this is a peril of the sea? That depends so that it was right and proper to take her into a port on the meaning of the term “perils of the seas" in of distress, where, if what had happened was caused charter parties, bills of lading, and policies of insurance. by the perils of the sea, she was from the other cirThey really are the perils to which people who carry cumstances a constructive total loss, yet it was held on tbeir business on that dangerous element, the sea, that this eating by the worms was not, even in a polare liable, because they carry on their business on the icy of insurance, a damage caused by a peril insured sea. They are the perils of the sea, not the perils of against, that is by a peril of the sea. The damage in journeying.

that case was done by worms but the result must have In Arnould Marine Ins., book %, ch. 2, it is stated been the same if it had been done by rate. It would that "the words 'perils of the sea' only extend to have been no stronger if it had been done by rats from cover losses really caused by sea damage, or the vio- the inside. If rats ate a wooden ship from the inside lence of the elements, ' ex marince tempestatis discrim- | nearly through to the outside of planks, so that she ine.' They do uot embrace all losses happening upon became wbolly unfit and unsafe to keep the seas, and the seas." Vol. 2, p. 741 (5th ed.). There may be she were carried into a port, where her coudition was many dangers which come uuder other words, but such that she could not be repaired so as to be a seawhich do not come under the words “perils of the going sbip, in the ordinary business sense of being seas." If perils of the seas had really included all capable of repair, that would not be loss caused by a losses happening on the sea it is obvious that none of peril of the sea. the subsequent words, which have been added to The next proposition which I shall lay down is that charter parties, bills of lading, and policies of iusur i: business, if it is attempted to distinguish with exance, would bave been wanted, or would have been treme fineness, either as to construction or as to apo included in them. Therefore perils of the seas are plication to facts the possibility of real business is dethose which are peculiar to carrying on business on stroyed, and it seems to me impossible to bold with the sea. They obviously therefore include the vio- any thing like a business sense of responsibility that if lence of the sea itself. They include the danger rats eat within the eighth of an inch of the outside of which is caused to things being on the sea by reason the planks, and so make a ship unfit to keep on the of the action of other elements which act upon the seas and render her irreparable, that constructive

total loss is not a loss caused by perils of the sea, fet But rats do not come from the sea. They are not if the rats were to eat the eighth of an inch further generated by the sea. They are no more a difficulty it would be a loss by perils of the sea. That is on board ship ibav is a warehouse or a mill. There- far too fine for me, and I think far too fine for busifore a priori one would bave said tbat damage done to the ship or cargo on board the ship by rats could vot If that case therefore is carried to its full length, the be a peril of the seas, as construed from the begin- damage caused by the eating by rats however immening. The first time a similar question was raised (in diate is not even in a policy of insurance a peril of the Rohl v. Parr, 1 Esp. 445), that was done which in the seas within the meaning of the policy, and much more, old days judges were in the habit of doing much more as I shall presently show, is this so in a obarter party than judges have been in the habit of doing lately. It or a bill of lading. was at a time before the distinction was so strictly There is a case with regard to rats (Hunter v. Potts, drawn between the construction of a mercantile doc- |4 Camp. 203) before Lord Elleuborough, which was ument being for the court and vot for the jury, and again on a ,policy of insurance. The ship having the questiou being partly for the court and partly for touched at Antigua was detained there a considerable the jury. Lord Kenyon asked a mercantile jury at time by the sickness of the crew, and while she lay at Guildhall whether in the mercantile world daniage to that island the rats ate holes in ber trapsons and other the ship’s bottom by worms was treated as a peril of parts of her bottom. In consequence a survey was the sea. The jury answered that it was not. There- called, and the ship was found to be unfit to proceed upon Lord Kenyon having asked for that opinion of to Honduras, and she was therefore condemned and the jury, not as decisive, but in order to instruct him, the cargo sold. Here was a ship reduced to extremiheld, that upou the true construction of the policy, ties, unfit to keep the sea and properly sold, but the damage done to the ship by worms was not within the loss having been charged as caused by a peril of the term “perils of the sea," and that decision, which he sea, Lord Ellenborough was clearly of opinion that it having had himself instructed by the jury, held as was not a loss within any of the perils insured a matter of law, has been adopted from that time to againsst. That, again, was the case of a policy of ille this.

My Brother Loper, in his judgment in the present One would expect to find in America the same law case, which is most elaborate and careful, has not as in England, because the American people of busicontroverted that view; he has adopted the view ness have adopted the same forms of bills of lading that damage to the ship or cargo by rats of itself and of policies and of charter parties that we have is not a damage caused by a peril or danger of the ourselves.

In the case of Hazard's Administrator v. New Eng. It is hardly necessary to go through the cases, but I land Marine Ins. Co., 8 Pet. 557, the damage was think it is better to name some of them to show how caused by worms. The judge directed the jury that clear this has been.

“ if they should find that in the Pacific Ocean worms The case of Rohl v. Parr, 1 Esp. 445, which was on a ordinarily assail and enter the bottoms of vessels, then policy of insurance on the ship, shows it very strongly. the loss of a vessel destroyed by worms would uot be

[ocr errors]




[merged small][merged small][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors]

a loss within the policy." I quote this case because winds and waves (a vis major) acting upon a seaworthy
the court there adopt the English decision to which I and substantial ship, and does not cover damage by
have referred. They say: “In 1796 the case of Rohl rats, which is a kind of destruction not peculiar to the
v. Purr, 1 Esp. 445, was tried, which involved this sea, or navigation, or arising directly from it, but one
question, before Lord Kenyon and a special jury. to which such a commodity as cheese ” (this is also
His lordship said that 'it appeared to him a question true as to rice)" is equally liable in a warehouse on
of fact rather than of law, such as the jury were com- land as in a ship at sea.” With regard to the observa-
petent to decide on from the opinion on the subject tions made in the old days about a cat being on board,
adopted by the underwriters and merchants.' Aud it was characteristic of the refined minds of those
the jury found it was not a loss within the term times to deal with such a matter. Pollock, C. B., who
perils of the sea' in policies of insurance, and of was a very practical judge, said he did not think much
course that the plaintiff could not recover for a total of the case of cats, because from the way in which car-
loss.' There seems to have been a general acquies- goes are now stowed it would be very difficult for a cat
cence in this decision in England, as it has never been to make its way in amongst the cargo; and so it would.
overruled." 8 Pet. 583, 584. Then some other cases However that question of the cats was dropped long
are cited, and it is said that in America the courts have ago, as is well known.
adopted that fiuding of the English jury, and acted That case is a distinct decision that damage done to
upon it.

a cargo by rats, where it does not let in sea-water, is I should like to notice this point, which is raised by not damage caused by perils of the sea. I have dealt that last case. There the question left to the jury was with the cases as to damage to the ship by rats or whether in the Pacific Oceau it was ordinary that worms under a policy of insurance. Now I come to worms should appear.

the case of damage to a ship or a cargo under the exIt seems to me that there must be a distinction be- ception in'a bill of lading, or a charter party. In the tween rats and some worms which attacked ships in case of a bill of lading or charter party, not the last the old days at sea. If by worms are meant worms immediate cause, but the real effective cause is to be which ate through the ship from the outside, those are looked to, so that it must come to this if the rats, as I worms which are generated by the sea and which at- said before, eat within the eighth of an inch of the tack from the outside, and this would immediately, I outside of the planks of the sbip and so damage the think, raise the question which was left to the jury in ship, or if rats eat the cargo, or otherwise damage the that case. Therefore the real ground why the loss was cargo, this conduct of the rats is not a cause of damnot held to come within the term “perils of the sea age which is excepted, yet if the rats go a little furwas this, tbat if the circumstances were the ordinary ther and let the sea-water in, then the damage to the circumstances of the voyage insured then the loss was cargo is to be excepted. It is impossible, and it cannot within the terms of the policy. Then it would not be in my mind that there are such distinctions. come within the ordinary circumstauces, not the ex- Therefore I take the case of Laveroni v. Drury, 8 Ex. traordinary circumstances of the voyage. Therefore 166; 22 L. J. (Ex.) 2, to be decisive, not only of what to my mind it is different in a case of seaworms-- had then to be decided, namely, that damage caused worms which are peculiar to the sea-attacking the by rats is not damage caused by a peril of the sea, but ship from the sea, which I think would be a peril of also as a necessary consequence, to provo this, that if the sea, unless it were that it is an ordinary circum- rats guaw through a pipe and let the water in, neverstance of the voyage, which either the underwriter, or theless, as the rats are the cause, and the sea is not, the shipowner, or the owner of the cargo, ought to an- and the letting in of the sea-water is only an effect of ticipate as an ordinary circumstance of the voyage. the cause, the real effective cause being the rats, what That question with regard to the attack of worms or the rats do is not damage caused by perils of the sea. barnacles can bardly arise in later days, because it was I think myself the cases would made it doubtful, a danger to wooden ships which were not metalled. even in a policy of insurance, whether it ought not to The metalling of ships was invented and applied be held where rats gnaw through the planks of the chiefly in order to guard against that very danger, and ship, the act is so closely immediate that the coming now if a ship were sent into seas which are frequented in of the sea-water should be treated, not as a cause at by such worms without being metalled it would be a

all, but as an effect, so that, even in that case there very strong circumstance upou wbich a jury would, I would be causa proxima as well as causa causans; think, find that the ship was not seaworthy for that but this is a matter which we need not determine on voyage even when she started, it being known at the the present occasion, and which must remain open time that in the ordinary course of the voyage this until the point is raised. danger must be auticipated. But with regard to rats Taking the distinction of construction which has it stood from the beginning, as I say, subject to the always been applied as between charter parties, bills other view that a danger to the ship or cargo by rats of lading, and policies of insurance, I feel in my own was not caused by an excepted peril in the bill of lad- mind perfectly clear that where the effective cause is ing or by a sea peril as insured against in the policy. the couduct of rats, as the learned judge has found Coming to later times, there is the case of Laveroni v. here in terms, and properly found, it cannot be held Drury, 8 Ex. 166; 22 L. J. (Ex.) 2, which to a certain that the coming in of the sea-water is the cause. extent is decisive in my opinion. There the question Therefore, with the greatest deference, arose upon bills of lading. The cargo, which was agree with the judgment of my Brother Lopes. I cheese, a thing most liable to the attacks of rats, was have read his judgment with the utmost care, and I damaged by rats. It is true that the sea-water did thiuk he has in reality, although he did not mean to not come in. The only damage was the damage by the do it, acted upon this: “The immediate cause of rats themselves. Pollock, C. B., said:

“ We agree

damage in this case," he says, “was the incursion of with the learned judge, that the true question is salt water through the hole in the pipe eaten through wbether damage by rats falls within the exception, by the rats; the effective cause of damage was the rat and we are clearly of opinion that it does not. The or rats.” 16 Q. B. Div. (35. Therefore it seems to me only part of the exception under which it possibly that he has inadvertently applied to this case the could be contended to fall is as 'a danger or accident strictest rules of the cause prorima, which is only apof the sea and navigation,' but this we think includes plicable to policies of insurance and is not applicaonly a danger of the sea or navigation properly 80- ble to bills of lading or charter parties. called, namely, one caused by the violence of the opinion it has been held from the beginning that in a

[ocr errors]


in my

« AnteriorContinuar »