The Great Indian Peninsula Railway Company against Saunders
| Jurisdiction | England & Wales |
| Judgment Date | 08 February 1862 |
| Date | 08 February 1862 |
| Court | Court of the Queen's Bench |
English Reports Citation: 121 E.R. 1072
IN THE COURT OF QUEEN'S BENCH, AND THE COURT OF EXCHEQUER CHAMBER
S. C. 31 L J. Q. B. 206; 6 L. T. 297; 9 Jur. N. S. 198: 10 W. R. 520. Distinguished, Kidston v. Empire Insurance Company, 1866-67, L. R. 1 C. P. 547; L. R. 2 C. P. 366; Meyer v. Ralli, 1876, 1 C. P. D. 372. Adopted, Dixon v. Whitworth, 1879, 4 C. P. D. 377. Referred to, The Glenlivet, [1893] P. 168; [1894] P. 48. Explained, The Pomeranian, [1895] P. 352.
[2661 the great indian peninsula railway company against saunders. Saturday, February 8th, 1862.-Marine insurance. Particular average. Partial iobb. Expence of forwarding goods.-1. Where goods are insured by a policy of marine insurance in the ordinary form, the expression "warranted free from particular average " is not confined to losses arising from injury to, or deterioration of, the goods themselves; but is equivalent to a stipulation against total loss and general average only ; and, consequently, includes expences incurred in relation to the goods.-2. A quantity of iron rails was shipped to be carried to a certain place, for a sum to be paid here, ship lost or not lost. The shippers insured them by a policy in the ordinary form " warranted free from particular average, unless the ship be stranded, sunk or burnt;" with the usual clause authorizing the assured to "sue, labour and travel for, in, and about, the defence, safeguard and recovery of the goods."" The ship was neither stranded, sunk nor burnt; but there was a constructive total loss of her by perils of the sea. The rails were saved, and sent on in other vessels to their destination, for which the assured was compelled to pay freight to an amount not exceeding the value of the rails. Held, that this freight was not recoverable under the policy. [S. G 31 L. J. Q. B. 206; 6 L. T. 297; 9 Jur. N. S. 198 : 10 W. R. 520. Distinguished, Kidston v. Empire Insurance Company, 1866-67, L. R. 1 C. P. 547; L. R. 2 C. P. 366; Meyer v. Ralli, 1876, 1 C. P. D. 372. Adopted, Dixon v. Whitworth, 1879, 4C. P. D. 377. Referred to, The Glenlivet, [1893] P. 168; [1894] P. 48. Explained, The Pomeranian, [1895] P. 352.] Error having been brought on the judgment of the Queen's Bench for the defendant (see vol. 1, p. 41), the case was argued, on the 3d and 8th February; before Erie C.J., Pollock C.B., Keating J., and Channell and Wilde BB.; and judgment delivered on the latter day. Edward James (R. E. Turner with him), for the plaintiffs.-The plaintiffs are entitled to recover from the defendant the money expended by them, after the loss of the ship, in forwarding the insured goods to their destination. The Court below decided in favour of the defendant, on the grounds, first, that, as there had been no total loss of the goods, the case was one, not of general average, but of particular average, and, as such, excepted by express provision in the policy; and, secondly, ihat, for the same reason-namely, there having been no total loss of the goods-the case did not come within the clause authorizing the assured to "sue, labour, [267] and travel for, in, and about, the defence, safeguard and recovery " of the goods, to the charges of which the assurers undertook to contribute. It ii true that here was no actual loss of the goods, nor constructive loss either, seeing that the additional expense incurred in forwarding them did not equal their value; Boeetto v. Gurney (11 C. B. 176). But it is a, rule that, in construing a contract, 21. tea. 288. GREAT INDIAN PENINSULA RLY. CO. V. SAUNDERS 1073 tbe whole must be looked at, and a reasonable construction put upon it. In Blackelt v. The Royal Exchange Insurance Company (2 C. & J. 244, 251), also, Lord Lyndhurst, delivering the judgment of the Court, says, "Thernleof construction as to exceptions is, that they are to be taken most strongly against the party for whose benefit they are introduced. The words in which they are expressed are considered as his words, and if he do not use words clearly to express his meaning, he is the person who ought to be the sufferer." Consequently clauses like the present, in a policy of insurance, which, are introduced for the protection of the underwriter, are to be looked on as expre*sed in his own words, and be construed most strongly against him. Applying these principles here, the true construction of this policy is, that the underwriter undertakes, not only that he will indemnify the assured against total loss of the goods during the transit, but that if, in consequence of the perils insured against, any money is necessarily expended by the assured in bringing the goods to their destination, he will repay it. [James here stated that a similar construction has always been put at Lloyds on the common memorandum in marine policies, which is in tbe same language as that in the body of the policy in this case; and that, where goods have met with accidents like the present, the practice of average staters is never to add [268] to the account of the assured the expence incurred in landing, warehousing and drying, so as to bring the loss up to 31. or 51. per cent., as the case may be.] Under the circumstances it was for the assured to decide whether he would abandon the goods. [Pollock C.B. referred to the language of Lord Elleuborough in Anderson v. Wallis (2 Mau. & S. 240, 247), that "Disappointment of arrival is a new head of abandonment in insurance law."] The Court below founded their judgment in a great degree on Arnould on Insurance, vol. 2, p. 970, 358, 2d ed., where particular average loss is said to be " loss arising front damage accidentally and proximately caused by the perils insured against, or from extraordinary expenditures necessarily incurred for the sole benefit of some particular interest, as of the ship alone or the cargo alone," and also p. 875, 322; and an Phillips en Insurance, vol. 2, p. 183, 1422, 3d ed., where he defines particular average to be "a loss borne wholly by the party upon whose property it takes place, and is so called in distinction from a general average, for which different parties contribute," and p. 452, 1767, where he says that an insurance against total loss only and an insurance with the exception of particular average, are equivalent forms. But the expression "average" is used in insurance law in different senses, from which much confusion has arisen. In Wilson v. Smith (3 Burr. 1550, 1555) Lord Mansfield says, "^Policies of insurance, according to their present form, are very irregular and confused : an ambiguity arises in them from their using words in different senses; particularly in the use of this word average." In Burnett v. Kensington (7 T. R. 210, 225),. Lawrence J. says: " Now considering how extremely inaccurate a policy of insu-[269]-rance is penned, I think that too great stress ought not to be laid on the precise; words used in it." In Le Cheminant v. Pearson (4 Taunt. 367, 380) Mansfield C.J., delivering the judgment of the Court says: "This policy of insurance ia a very strange instrument, as we all know and feel; in practice I know of cases in the Court of King's Bench, where such expences have been recovered as an average loss, without making any distinction whether it waa recoverable as an average loss from damage repaired, or within the words of the permission to ' sue, labor, and travail, &c.;' and as no such distinction has been made, we find it safer to adhere to the practice which haa obtained and to call it all average damage." In the present case, the judgment of the Court below proceeded on the ground that "particular average" and " partial loss" are synonymous terms, and oppoaud to total loss. It is true that "particular average" is often used in the sense of " partial loss," but it is often, and in this case among others, used in a diffeient sense, as meaning deterioration of the goods by tbe perils insured against. TLere are many authorities to this effect. Benecke on Marine Insurance, 472, Loud. 1824, says: "The term particular average, as understood at Lloyds, does not comprise the particular charges, or the expenses incurred for saving or preserving the cargo or freight, such as warehouse-rent in an intermediate port, which is considered a particular charge on the cargo...
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