5 B. & ALD. 107. LAWRENCE V.

ABERDEIN 1133

[107] LAWRENCE against ABERDEIN. Monday, October 29th, 1821. A policy

was effected on living animals, warranted free from mortality and jettison. In
the course of the voyage, some of the animals, 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.
[Distinguished, Taylor v. Dunbar, 1869, L. E. 4 C. P. 211.]
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 terra, 1820, a verdict was
found for the plaintiff, subject to the opinion of the Court, on the following case.
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. On 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 [108] 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 Saint Vincents. The ship arrived at
Saint 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 the 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?
F. Pollock, for the plaintiff. The underwriters are not exempted from the loss
that has happened by the word of the special exception, " warranted free from
mortality." These words were introduced 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
meaning. Some effect will be given to the exception, by construing the word in that
sense; for the underwriters will thereby 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 sea-sickness 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, Traits' 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
1134 LAWRENCE V. ABERDEIN B B. & ALD. 110.

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 C.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 under-
writers would be answerable. It lies on them, therefore, to shew that there is
a special exception in this policy applicable to the present case, in order to relieve
them from 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 Term Eep. 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 case. But the statute
of the 34 Geo. 3, c. 80, s. 10, had enacted, "That no loss or damage should be recover-
able 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 [111] natural death; and
if the ship, in this case, had been 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 Saint 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 iu which it 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, that the assured is entitled to recover. Under
[112] 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
5B. &ALD. 113. LAWRENCE V. ABERDE1N 1135

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 sea-sickness, 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 super-
induced 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, occasioned by the tempestuous weather, that would be a loss
by a peril of the sea, for [113] 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 extending it beyond its ordinary and
popular sense. If we were to hold, that the exception protected the underwriter from
every loss to which the property was subject, in consequence of the subject-matter
insured being alive, instead of dead, this absurd consequence would follow, that if by
the violent agitation of the sea the animals had their legs broken, and thereby became
of no value to the owner, but arrived alive at St. Vincent's ; the underwriter would be
responsible. Whereas, if they had died during the course of the voyage, he would not
be liable at all. The circumstance of these words of the exception not being
calculated to protect the underwriter from any loss, in the event of the animals
receiving any injury short of death, seems to me to shew, that they were not intended
to exempt them from a loss by the actual death arising immediately from a peril of
the sea. I think that the words used in this exception will protect the underwriter
in cases where the death of the animal arises from natural causes remotely produced
by some of the perils insured against; but that they will not protect him where such
death arises directly from any of the perils insured against. For these reasons, I am
of opinion that there must be judgment for the plaintiff.
Holroyd J. I am of the same opinion. Although death may have been the
immediate cause of the loss, and may have made the actual loss to the assured [114]
greater than it otherwise would have been, still, as the injury to the animals which
occasioned their death was caused directly by the violence of the storm, I am of
opinion that this is to be considered as a loss by the perils of the sea. It, consequently,
falls within the risks enumerated in the policy; and, it seems to me, that it is not
excepted out of those perils by the words " warranted free from mortality and
jettison." Independently of those words, the underwriters would undoubtedly have
been liable as for a loss arising from a peril of the sea. Those words were the language
of the underwriters, and were introduced by them to protect themselves from a
particular species of loss. By the terms of the policy, they insured against the perils
of the sea, &c, and all other losses and misfortunes that should come to the hurt,
detriment, and damage of the subject-matter insured. Now, the exception must be
considered as ingrafted upon these general words in the policy, and the whole
should be read together as one sentence; and then it would stand thus: that the
underwriters will be liable for losses by perils of the seas, and all other losses
except losses by mortality and jettison. It seems to me, that as the injury which
immediately preceded and caused the death of the animals proceeded directly from
the violence of the storm, the loss is to be considered a loss by the perils of the
sea. Death may or may not have increased the amount of the actual loss to the
assured. With respect to the mules and asses, the entire loss arose from the perils of
the sea, and was neither increased nor diminished by their death. For, after
receiving a mortal wound, they became of no value to the owner, and death conse-
quently did not in any degree [115] increase the loss. The case might be different
with respect to the oxen ; if they were killed after receiving an injury, their flesh
might be of some value as food, and, consequently, their death may have increased the
loss in'some degree. But still, as the previous injury was occasioned by the perils of
the sea, whether the death of the animal did or did not increase the amount of the
actual injury to the owner, I am of opinion that it must be considered a loss by the
perils of the sea. The circumstance of the parties having inserted in the exception the
word jettison, satisfies me, that they did not contemplate the case of violent death.
For, although it is possible that the animals thrown overboard might, under favourable
1136 5B. &ALD. 116.

circumstances, reach the shore and survive, yet I think that the term usually denotes
the throwing overboard in a storm, when there would be little probability of animals
surviving; and that it must, therefore, mean a jettison whence death ensues. Now, if
the term " mortality " were intended to protect the underwriter in every case of the
animals meeting with a violent death, the introduction of the word "jettison " would
be superfluous, as that species of loss would be covered by the word " mortality."
Besides, this absurd consequence would follow; if we were to give to the words used
in the exception the construction contended for by the defendant, that where the
violence of the wind and waves was so great as to cause the death of the animals
during the voyage, the underwriters would not be liable at all; but where the violence
of the wind and waves was only such as to cause some injury to the animals, short of
death, then the underwriters would be responsible. For these reasons, I am of opinion
that the word mortality, in this policy, must be understood in its ordinary [116]
and popular sense, as importing death arising from natural and not from violent
causes. And that being so, there must be judgment for the plaintiff.
Best J. I am of the same opinion. At the time when this policy was effected, this
country was at peace with all the world, and there was not any probability of the
vessel being captured by enemies. Capture by pirates on the voyage insured was
equally improbable, and a loss by barratry was not very likely to happen. If the
underwriters are not liable for the loss in question, they can hardly be liable in any
case, for there is not any other species of loss arising from the destruction of the
animals, of which death may not be considered the immediate cause. If the ship
was even sunk or burnt, death would be the immediate cause of the destruction of the
animals, and consequently, according to the construction contended for, such a case
would fall within the exception as a loss by mortality. The exception is intro-
duced into the policy by the underwriters. If they had intended to exonerate
themselves in every case of death occasioned by a peril of the sea, they should have
used words apt and proper to express that intention. They might have stipulated,
that they would not be liable for the death of the animals unless the ship were
stranded or lost, and then they would not have been liable for the loss that has
occurred in this ease. They have only stipulated, that they will not be liable for
loss by mortality. That word, in its ordinary and popular sense, signifies death
arising from natural causes, and not from violence. I think, therefore, that the
underwriters must be taken to have intended to exempt themselves, by this exception,
from that species of loss which occur-[117]-red in Tatham v. Hodgson, viz. a loss of
which death was the proximate cause, and the perils of the sea the remote cause. Here
the injury done to the animals arose directly and immediately from the violence of the
tempest, or in other words, from the perils of the sea. For these reasons, I am of
opinion, that the plaintiff is entitled to the judgment of the Court.
Judgment for the plaintiff.