No. 75. Lawrence v. Aberdein, 5 Barn. & Ald. 107. ― Rule. When goods are insured against fire, but loss by theft is excepted, the insurer is not liable for loss by theft after the removal of the goods to save them from fire. Webb v. Prot. Ins. Co., 14 Missouri, 3. In Rice v. Homer, 12. Massachusetts, 229, a vessel suffered damage by perils of the sea to three-fourths of her value, and one-third of her cargo was thrown overboard to save the rest and the lives of the crew. In consequence of this misfortune she was forced into a hostile port, and was confiscated there. Held, a loss by capture. A valuable collection of American cases (citing the principal case) is in 14 Am. & Eng. Enc. of Law, p. 380 et seq. WHERE a policy is effected on living animals, the death of the animals caused by the agitation of the ship in a storm. is a loss by perils of the sea; and although the policy contains the words "warranted free from mortality," this does not create an exception, the words being construed as merely protecting the underwriters against death from natural causes. [107] Lawrence v. Aberdein. 5 Barn. & Ald. 107-117 (24 R. R. 299). Insurance. - Living Animals. - Peril of the Seas. Causa proxima. A policy was effected on living animals, warranted free from mortality and jettison. In the course of the voyage, some of the auimals, in consequence of the agitation of the ship in a storm, were killed; and others, from the same cause, received such injury that they died before the termination of the voyage insured. Held, that this was a loss by a peril of the sea, for which the underwriters were liable. Assumpsit upon a policy of insurance. The declaration stated a total loss of the animals insured, by perils of the sea, on the voyage. Plea, general issue. At the trial, before BEST, J., at the London sittings after Trinity Term, 1820, a verdict was found for the plaintiff, subject to the opinion of the Court, on the following case. No. 75. - Lawrence v. Aberdein, 5 Barn. & Ald. 107, 108. On The policy was effected on the 30th December, 1819. The Voyage insured was at and from Cork to Barbadoes and St. Vincents; and at the foot of the policy the insurance was declared to be on thirty mules, ten asses, and thirty oxen, warranted free of mortality and jettison. On the 17th January, 1820, the ship sailed with the animals insured, properly stowed on board, on the voyage insured. On the 19th of the same month a violent storm arose, which caused the ship to labour and pitch. This lasted, without intermission, until the 30th of the same month, when, for the preservation of the ship and cargo, and on account of the damage which the ship had sustained from the violence of the storm, the ship put into Mount's Bay, in Cornwall, in order to refit. the first day of the storm, from the violent pitching and rolling of the ship, occasioned by the storm and consequent agitation of the sea, two of the mules, one of the oxen, and five of the asses were killed; the remainder of the animals, from the same causes and perils of the sea, on that and the following days, until the 30th of January, received such violent and severe bruises, lacerations, and injuries, that all of them died in consequence thereof, before the ship sailed again in prosecution of her voyage from Mount's Bay, which she did on the 14th February, 1820, excepting six mules and one ass, one of which six mules afterwards died from the same cause before the arrival of the ship at St. Vincents. The ship arrived at St. Vincents, with the remaining five mules and one ass, on the 24th March, and delivered the rest of her cargo in safety. The question for Opinion of the Court was, whether the plaintiff was entitled to recover for the loss of all, or any, and which of the animals insured? the [* 108] F. Pollock for the plaintiff. The underwriters are not exempted from the loss that has happened by the words of the special excep"warranted free from mortality." These words were intro tion, duced into the policy by the underwriters, and must therefore be taken most strongly against them. The word " mortality" signifies death arising from natural causes. Here, the death of the animals arose directly from the violence of the tempest, and not from natural causes. The loss did not, therefore, arise from mortality, if that word be understood in its ordinary and popular Some effect will be given to the exception by construing the word in that sense; for the underwriters will thereby meaning. No. 75. Lawrence v. Aberdein, 5 Barn. & Ald. 108-110. be exempted from one species of loss for which they might otherwise be responsible, viz. in the event of the death of the animals by seasickness in a storm. For such a loss the underwriters would be answerable under a common policy. But they would be exempted by the special exception. [* 109] * *Campbell, contra. Some effect must be given to the words of the exception, so as to extend to the underwriters a protection against some species of loss to which they would have been liable, if those words had not been introduced into the policy. Now they would not have been liable for any loss arising from the natural death of animals, but they would have been liable if they had been drowned in a tempest or killed in battle. Pothier, Traité du Contrat d'Assurance, c. 1, s. 2, art. 2, s. 3, and Valin, Ordonnances de la Marine, liv. 3, tit. 6, art. 11. Here the animals died in consequence of the injury they received during the storm, and the underwriters, therefore, would have been liable for this loss under a policy in the common form. The exception, therefore, was introduced for the purpose of exempting them from all losses whatever, arising from the vitality of the subject-matter insured, or, in other words, to reduce the risk to the same level as if the subject-matter insured was inanimate goods. If that had been the case here the cargo might have received little or no injury. If the words "free from mortality" be construed only to protect the underwriters against losses arising from death from natural causes, no effect whatever will be given to the exception; for, in such a case, the underwriters would not have been liable under a policy in the common form. The true meaning of the exception is, that the underwriters are to be liable for all the risks to which they would have been subject if they had insured inanimate goods. By this construction they will still be liable for losses by capture by enemies or pirates, or barratry of the master or mariners. [*110] * ABBOTT, Ch. J. I am of opinion that the underwriters are answerable for this loss. The insurance was on living. cattle, which, in the course of the voyage, have been killed by the rolling of the ship in a violent tempest. They have been killed, therefore, by a peril of the sea. Under the general terms of the policy the underwriters would be answerable. It lies on them, therefore, to show that there is a special exception in this policy applicable to the present case, in order to relieve them from No. 75. Lawrence v. Aberdein, 5 Barn. & Ald. 110, 111. the effect of their general liability. The expression used in the policy is "free from mortality." Now the word " mortality," in its ordinary sense, never means violent death, but death arising from natural causes. There may, however, indeed, be a remote cause, which may sometimes superinduce a natural cause. In Tatham v. Hodgson, 6 T. R. 656, the want of provisions was the immediate cause of the death of the slaves; the remote cause was the circumstance of the ship having been driven out of her course by the perils of the sea, in consequence of which the provisions, which otherwise would have been sufficient for the voyage, were exhausted. There was not any exception in the policy in that But the statute of the 34 Geo. III., c. 80, s. 10, had enacted "that no loss or damage should be recoverable on account of the mortality of slaves, by natural death or ill treatment, or against loss by throwing overboard of slaves, on any account whatsoever. A question was made, whether the death of the slaves so arising, indirectly and remotely from the peril of the sea, was not one for which the underwriters were liable; and the Court held that they were not liable, because it was a loss arising by case. * natural death; and if the ship, in this case, had been [* 111] driven out of her course by the perils of the sea, and the voyage thereby had become so protracted as to exhaust all the provisions, and, consequently, the means of sustaining the life of the animals insured, I think that the words "warranted free from mortality," introduced into this policy, would have protected the underwriters from that loss for which they otherwise would have been liable, as for a loss arising from the perils of the sea. And if there be any one case in which effect can be given to those words, understanding them in their ordinary and popular sense, they ought not to be extended beyond that sense. There is very great difficulty, in construing these words, to give a protection to the underwriters against all losses arising from the vitality of the animals. Suppose, for example, a valuable horse, by the motion of a vessel in a storm, were to have his legs broken, but to arrive alive at St. Vincents, the animal would be of no use; the underwriter would be liable for that loss; but if the animal were actually killed, he would not be liable at all. It could hardly be the intention of the underwriter that he should be liable in one of these cases and not in the other. If the construction I have put upon this very ambiguous phrase is not the sense in which it No. 75.- Lawrence v. Aberdein, 5 Barn. & Ald. 111-113. has been generally understood at Lloyd's Coffee House, it will be very easy to introduce into policies other words which shall more clearly express the meaning of the parties. In this case, therefore, there must be judgment for the plaintiff. BAYLEY, J. My mind has not been free from doubt during the discussion of this subject; but I am now of opinion. [*112] that the assured is entitled to recover. Under* a policy in the common form, the assured would have been entitled to recover, either in case of the total destruction of the animals, or for any less injury, provided it was occasioned by any of the perils insured against. The words, "warranted free from mortality," are introduced into this policy by the underwriter for his benefit. It is his duty, therefore, to take care to frame his exception in words sufficiently large and extensive to meet all those descriptions of loss against which he intends to protect himself. The word "mortality" may, under certain circumstances, include every description of death, every termination of life to which mortals are subject. It applies generally, however, to that description of death which is not occasioned by violent means. If a great number of the crew, or of animals shipped on board a ship, were killed in the course of an engagement with an enemy, it would not be correct to say that there had been a great mortality among the crew, or among the animals. If, on the other hand, they had come to their death by any natural cause, the term mortality" would be properly applied to express the cause of such death. If, in this case, the animals insured had died from seasickness, occasioned by the agitation of the ship, or in consequence of any other disease, contracted in the course of an unusually protracted voyage, the term " mortality" might apply to that description of natural death, so superinduced by the voyage. Under a common policy, if the declaration stated that the ship had met with tempestuous weather, and that the animals thereby became disordered, diseased, and died, and it be proved that their death was imputable to the agitation of the ship, occa sioned by the tempestuous weather, that would be a loss [113] by a peril of the sea for which the underwriters would be liable. The exception introduced into this policy would, in my opinion, protect them from such a loss. The word "mortality" here used may, therefore, receive a construction which will afford some protection to the underwriter, without |