her, establishes that such position was not taken in the ordinary course of navigation. In Barrow v. Bell (a), a ship, in entering a harbour, struck upon an anchor, and being thereupon in danger of sinking at her moorings, was warped higher up the harbour, where she took the ground, and remained fast: this was also held to be a stranding within the meaning of the policy; but the blow which rendered the stranding fatal, was given by the anchor before the vessel took the ground. In Bishop v. Pentland (b), where the ship was compelled to put into a tide harbour, and was there moored alongside a quay, in the usual place for ships of her burden, it became necessary, in addition to the usual moorings, to fasten her by tackle to posts on the shore, to prevent her falling over upon the tide leaving her; and the rope with which she was so fastened, not being of sufficient strength, broke when the tide retired, and the vessel fell over upon her side, which was thereby stove in: this was held to be a stranding. But the damage was manifestly occasioned by the negligence of the crew, and not in the ordinary course of navigation. In the present case, the jury having found that the accident was not occasioned by the insufficiency of the rope, the stranding could only have occurred in the ordinary course of navigation at Dunkirk harbour. Taddy. In the ordinary course of navigation at Dunkirk harbour, vessels are compelled to take the ground; but they would not enter and do so if the practice exposed them to destruction or injury; the fact, therefore, that all vessels take the ground there, conclusively shews, that it is not in the ordinary course of navigation that they should be bilged in so doing. The 1832. KINGSFORD V. MARSHALL. 1832. KINGSFORD injury occasioned by the stone, in this case, was as much out of the usual course, as the injury occasioned by the sunken anchor in Barrow v. Bell, or the hidden MARSHALL. piles in Rayner v. Godmond. Though the taking the ground was contemplated by both parties to the insurance, the accident which occasioned the injury was unforeseen, and comes therefore within the scope of the insurance. In Carruthers v. Sydebotham, the insurers were held responsible, because, in the judgment of the master, the ship had been placed by the pilot in an improper position: and such was the case here; for the harbour-master, not the captain, stationed the vessel where the accident happened. The jury, therefore, should have been directed that this loss occurred, not by such by a stranding or taking the ground as the parties contemplated, but by an unforeseen accident, the consequence of which was a stranding for which the underwriter was responsible. Cur. adv. vult. TINDAL C. J., (after stating the facts as above,) proceeded;-A rule has been obtained for a new trial, upon the ground of a misdirection to the jury; but after hearing the argument of counsel against and in support of the rule, we think, upon those facts, the direction of the Judge, and the finding of the jury, was right, and that a new trial ought not to be granted. That the injury done to the ship or goods by settling on a hard substance at the bottom of the harbour, would be a damage recoverable on a policy on ship, or a policy on goods not included in the memorandum, as an injury occasioned by perils of the sea, is beyond all doubt. But the question is, whether, as the goods insured fall within those in the memorandum enumerated, the present case is taken out of the excep tion contained in such memorandum, by reason of the ship being stranded; inasmuch as it has long been settled settled that the words "if the ship be stranded" are words of condition, and that if such condition happens, it destroys the exception and lets in the general words of the policy. (See Burnett v. Kensington. (a)) In considering this case, therefore, it will be better to treat the fact, that the damage to the wheat was occasioned by the very act of the ship's taking the ground, as a circumstance altogether immaterial in the determination of the question. For if the ship was stranded in Dunkirk harbour, an average loss upon the whole would be equally recoverable, though it had happened from perils of the sea at any former time, or any other place in the course of the voyage insured. In this point of view it is of very great consequence that the meaning of the word stranding should be distinctly understood. Now it is perfectly clear, and has been settled by various decided cases, that by the term "stranding," neither of the contracting parties could intend a taking of the ground by the ship in the ordinary course of navigation used in the voyage upon which she was engaged. It is needless, therefore, to say, that when a vessel, in the course of a voyage insured, is sailing in a tide river, or puts into a tide harbour, the taking the ground from the natural cause of the deficiency of water, occasioned by the ebbing of the tide, is no stranding, within the meaning of the policy. Otherwise, at every ebb of the tide, there would be a stranding; and the memorandum intended for the security of the underwriter against partial losses upon perishable commodities, would be altogether nugatory, as the smallest injury to the cargo, occasioned at an early part of the voyage, would always be a loss within the policy, by reason of the ship discharging her cargo in a tide harbour. The mere taking of the ground, therefore, in a tide harbour, in the place in (a) 7 T. R. 210. tended 1832. KINGSFORD v. MARSHALL. tended by the master and crew, or the proper officers of the harbour, cannot, upon any principle of construction or common sense, be held to constitute a stranding. What more, then, is necessary? We think a stranding cannot be better defined, than it has often been in several of the decided cases, viz. where the taking of the ground does not happen solely from those natural causes which are necessarily incident to the ordinary course of the navigation in which the ship is engaged, either wholly or in part, but from some accidental or extraneous cause. Such was the case in Carruthers v. Sidebottom (a), where the ship was taken by the pilot who had her in charge, against the direction of the master. and moored in an improper place. Such, also, was the case in Barrow v. Bell (b), where, the vessel having struck on an anchor, whereby she sprung a leak, and being in danger of sinking, was, in consequence, warped further up the harbour of Holyhead, where she took the ground. Such, again, was the case of Bishop v. Pentland (c), where, the ship having entered a tide harbour by stress of weather, was moored, fore and aft, with the addition, as in the present case, of a tackle from her mainmast, fastened to posts on the pier to prevent her falling over. The rope, being of insufficient strength, broke, and by means thereof the ship fell upon her side, whereby she was stove in and injured. Such, lastly, was the case of Wells v. Hopwood, very recently decided in the King's Bench, in which case the ship, having arrived in Hull harbour, was in the course of discharging her cargo at a quay alongside of which she was moored. At low water she grounded on the mud; but on one occasion, the rope by which her head was moored to the opposite side of the harbour stretched, (a) 4 M. & S. 77. (c) 7 B. & C. 219. and and the wind blowing from a particular quarter, instead of grounding entirely on the mud, as it was intended she should have done, she partly grounded on a bank of rubbish and stones. This grounding was held, by a majority of the Judges, to be a stranding within the meaning of the policy. Now, all these cases were decided upon the principle, that the taking the ground was occasioned by some extraneous and accidental cause; and was not a taking of the ground in the usual course of navigation. We think the attention of the jury, in the present case, was called to the very point to which it ought to have been directed, viz. whether the grounding was such as the master and crew intended, that is, merely by the ebbing of the tide, in the ordinary course of navigation; or, whether the grounding in the particular spot where she took the ground, was the effect of accident. Upon the facts before them, we think the jury found a right verdict; and, therefore, the postea should be delivered to the Defendant. Rule discharged. 1832. KINGSFORD บ. MARSHALL. |