Williams v. Cole , 16 Me. 207 ( 1839 )

The opinion of the Court was drawn up by

Emery J.

Upon this disclosure, we think the defendants, sued in that character, must be adjudged trustees. We do not think it necessary that the loss should occur by stranding. Although potatoes like other vegetables are in their nature perishable, yet a loss by the perils of the sea, independently of stranding may well arise. If such losses were not within such policies, the indemnity against such risks would be practically of little importance.

In the memorandum clause, where the exception is broad enough to include other losses, besides those arising from the inherent decay of the articles specified, the insurer is entitled to exemption from every risk plainly and explicitly included within the terms of the exemption. In this policy potatoes were not, by name, included in that exemption.

The underwriter is not answerable for any partial loss on memorandum articles, except for general average, unless there is a total loss of the whole of a particular species, whether the particular article is shipped in bulk or in separate boxes or packages. 4 Wend. 33. Here the cargo was so damaged by the perils of the sea, as to exist only in the shape of a nuisance. In such a case, the loss is total, without abandonment. 3 B. & P. 474; 5 M. & S. 447; 3 Bingham N. C. 266, or 32 Eng. Com. Law Rep. 110, Roux v. Salvador.