3B.&C.791. GABAY V.

LLOYD 927

[793] GABAY AND ANOTHER against LLOYD. 1825. A policy was effected on
horses warranted free from mortality and jettison. In the course of the voyage
in consequence of the agitation of the ship in a storm, the horses broke down the
partitions by which they were separated, and by their kicking bruised and
928 GABAY V. LLOYD 3 B. & C. 791.

wounded each other so much that they all died : Held, upon special verdict,
that this was a loss by a peril of the sea, and that the plaintiff was entitled to
recover. It was found in the special verdict that a certain usage with respect to
such policies prevailed amongst the underwriters subscribing policies at Lloyd's
Coffee-House in London, and merchants and others effecting policies there, and
that the policy in question was effected at Lloyd's Coffee-House, but it was not
found that the plaintiff was in the habit of effecting policies at that place : Held,
that this usage was not sufficient to bind the plaintiff.
[S. C. 5 D. & R. 641; 3 L. J. K. B. 0. S. 116. Referred to, Taylor v. Dvnbar,
1869, L. E. 4 C . P . 211.]
Declaration upon a policy of insurance on goods, as per annexed statement, valued
at 28001., on the ship " Aimwell," at and from Liverpool to Jamaica. By a memo-
randum, horses were warranted free of jettison and mortality. The declaration then
stated that the defendant subscribed the policy for 2001.; that three horses, parcel of
the goods valued in the statement, had been shipped at Liverpool on board the
"Aimwell"; that the plaintiffs were interested, and then averred a loss of the horses
by perils of the sea. At the trial before Abbott C.J., at the London sittings, the
jury found a special verdict, stating the following facts: the order for effecting the
insurance, that the three horses mentioned in the declaration were parcel of the
goods valued in the statement; the payment of the premium; the subscription of
the defendant; the shipment of the horses; the interest of the plaintiffs in the goods ;
and amongst these, of the three horses; the sailing of the vessel; and that on, &c. at,
&c. the said vessel having the said three horses on board thereof, together with the
other goods in the said order mentioned, the said horses (which were between decks)
being at that time in good safety, and properly secured in stalls, with slings and
halters, and having sufficient partitions between them, and also a person to attend to
take charge of them; and the said vessel being in every respect seaworthy, sailed
from the [794] port of Liverpool aforesaid on her said voyage; and that during the
night of that day the wind came on to blow very hard, with excessive squalls, and
the gale continued with excessive squalls. The said three horses, by the labouring
of the vessel, broke their slings, and one of them, by kicking, broke down the
partition between it and the next horse, in consequence of which the remaining
partition, by the kicking of the two horses which were thus brought together, was
also broken down, and the three horses having then nothing to support them, were
unable to stand, on account of the great rolling of the vessel; and that by their
kicking they bruised and hurt each other so much, that about eight in the morning
of the 26th two of them were found dead, having their necks broken, and being
otherwise excessively bruised, and that the third was in a dying state, and in about
an hour and a half afterwards it also died from the wounds and bruises it had
received; and that the slings having been broken in the manner above mentioned,
they could not for some time be replaced or repaired on account of the state of the
weather, and from the danger of going amongst the horses, which were then loose
and unsupported; and that the death of the horses was not occasioned by the neglect
or default of the plaintiffs or their servants, or of the master or mariners of the
vessel, in the shipping, stowing, or taking care of the horses, but was owing to the
circumstances set forth in manner aforesaid. The special verdict then stated that
the vessel afterwards arrived at Jamaica with the residue of the goods, and that the
defendant had notice of the loss, and was called upon to pay his proportion of
the loss, but refused so to do; and that, according to the usage and custom among
insurers or underwriters [795] who were in the habit of subscribing policies of marine
insurance at Lloyd's Coffee-House in London, and merchants and others effecting such
policies of insurance there with such insurers or underwriters, there were before and
at the time of effecting the policy in the declaration mentioned two descriptions of
policies for insuring live stock on board ships on voyages from the ports of the United
Kingdom to Jamaica and elsewhere; one containing an exception from the perils
insured against, or a warranty of freedom from mortality; another not containing
any such exception or warranty, and which latter description of policies usually
contained words expressly including the risk of mortality; that for insurance by
policies of the first description the premium has been much lower, in some instances
four or five, in others six or eight times less, than for insurance by policies of the
3B.&C.796. GABAY V. LLOYD 929

latter description, and has been usually the same as has been paid at the time upon
inanimate goods. And that, in case of insurances by policies of the first description,
that is, policies containing such exception of losses by mortality, the assured have not
claimed from the underwriters, and the underwriters have not paid to the assured, or
been considered liable to pay a loss by the mortality of cattle in any case where the
vessel, on board which such cattle were, arrived safe; but it had always been usual
on policies of the latter description, to claim and pay a loss by mortality of cattle, in
all cases where such loss had occurred, although the vessel arrived safe; and that on
policies of each of the descriptions before mentioned, if the vessel had been lost on
her voyage and the animals drowned, the underwriters aforesaid had been in the
habit of paying to the assured. The special verdict [796] further stated, that the
policy of insurance in the declaration mentioned was effected at Lloyd's Coffee-House
aforesaid, and was then and there signed and subscribed by the defendant, who was
an insurer and underwriter there.
This case was now argued by Parke for the plaintiffs, and Campbell for the
defendant; and there were two questions, first, whether by the words of this policy
the underwriter was liable for the loss accruing from the death of the animals. The
arguments upon this point were in substance the same as those urged in Lawrence v.
Aberdein (5 B. & A. 107).
The other question was, whether, assuming that case to be well decided, the usage
found by the special verdict did or did not shew, that it was the intention of the
parties to the contract, that the underwriter should be exempted. It was contended
for the defendant, that the usage was sufficient to explain the meaning of the parties,
and to control the ambiguous language of the policy. Petty v. The Royal Exchange
Assurance Company (1 Burr. 341), Noble v. Kennoway (Doug. 510), Ougier v. Jennings
(1 Camp. 505), Vallance v. Dewar (1 Camp. 503), and Palmer v. Blackburn (1 Bing. 61),
were cited; and it was urged that the usage clearly shewed that it was not intended
that the underwriters should be liable for a loss of this description.
For the plaintiffs it was contended, that the usage found was not sufficient to
bind the plaintiff. The facts [797] stated were merely evidence, from which the jury
might have drawn a conclusion that there was a usage. The usage found was confined
to insurers or underwriters in the habit of subscribing policies at Lloyd's Coffee-House,
and merchants and others effecting.such policies there with such underwriters; but it
was not found that the plaintiffs were in the habit of effecting policies at that place.
There was nothing, therefore, to shew that the plaintiffs had any knowledge of such
a usage. Now the principle upon which usage is received as evidence to explain
the ambiguous language of a policy is, that the parties to it are supposed to contract
with a knowledge of that usage. Here it does not appear that the plaintiffs had
any knowledge of the usage, and they cannot be supposed to have contracted with
reference to it.
All the Court were of opinion, that the usage found in this case was not sufficient
to take it out of the rule laid down in Lawrence v. Aberdein (5 B. & A. 107), inasmuch as
it was not found to be the general usage of the whole trade in the City of London, but
only in one house where policies were usually effected by private individuals. If there
had been any evidence to shew that the plaintiffs were in the habit of effecting policies
at Lloyd's Coffee-House, the jury ought to have found that they had knowledge of the
usage which prevailed there. A Court of Law does not know judicially what propor-
tion of the policies effected in London are effected at Lloyd's Coffee-House; and even
if that had been found, it would only be evidence of the usage in London, and [798]
the jury ought to have found the fact of an existing usage : here there was no usage
found sufficient to bind the plaintiffs.
As to the other point, the whole Court were of opinion, that this case fell within
the decision in the case of Lawrence v. Aberdein, and Abbott C.J., Bayley J., and
Holroyd J., said, that they thought that case properly decided, and that they had
heard nothing to induce them to alter the opinion which they had then formed.
Littledale J. said, he doubted whether he should have concurred in the decision in the
case of Lawrence v. Aberdein, but that he thought this case was not distinguishable
from it.
Judgment for the plaintiffs.

K. B. xxxvi.—30