
    Joseph S. Lake v. The Columbus Insurance Company.
    Where a policy of insurance contained the following proviso, “provided that the insurers shall not bo liable for ally partial loss on salt, grain, fish, fruits, hides, skins, or other goods that are perishable in their own nature, unless it amount to seven per cent, on the whole aggregate value of such articles, and happen by stranding,” no recovery can be had for any partial loss of grain, unless the loss bo occasioned by the vessel stranding.
    Where a loss is occasioned by the vessel striking upon a rook, and bilging, without remaining stationary, it is not a loss by stranding.
    
      This was a suit upon a policy of insurance, reserved from the Supreme Court of Franklin county, for decision in bank, upon the following agreed statement of facts:
    “ That on November 11, a. d. 1839, the defendants, in due form, executed the policy of insurance to the plaintiff, which is made part of the agreed case, and marked A. That on November 9,1839, the plaintiff put on board the schooner ‘Buffalo,’ Rosetty, master, 5,254 and 13-GO bushels of wheat, as per bill of ^lading, marked B, which bill of lading is made part of the agreed facts in this case. That said schooner — on board of which, from the bill of lading, were placed said 5,254 and 13-60 bushels of wheat, the property of the plaintiff, and which were to be delivered to consignees, Kingman and Durfee, Black Rock, as per said bill of lading — struck a rock and was injured, and her cargo damaged, on November 13,1839, as set forth in the affidavit and notice of protest of Augustus Rosetty, master of the ‘ Buffalo,’ marked C, and made part of this case. The instrument of protest, dated April 21, A. d. 1840, marked D, is also made part of this agreed case. The paper marked E, is admitted to be a true account of the sale and net proceeds of the damaged wheat of the plaintiff on board the ‘ Buffalo,’ and is miado a part of this case, marked as above. It is agreed that the loss is a partial one. Neither party is to be prejudiced by the clause relating to arbitration. Defendants claim that the loss was not covered by the policy.
    “ If, from the above facts, the court is of opinion that the plaintiff is entitled to recover, judgment is to be entered for the plaintiff for the amount mentioned in the policy, with interest and costs, deducting the net amount made by salo, as per paper E; but if the court should be of opinion that the loss, as appears by said papers, was not covered by the policy, then judgment is to bo entered for the defendants, and costs.”
    So much of the policy as is deemed material is as follows:
    “ Touching the adventures and perils which the said insurance company are contented to bear and take upon them in this voyage, they are : of the seas, fire, enemies, pirates, assailing thieves, restraints and detainments of all kings, princes or people, of what nature or policy soever, barratry of the master (unless the insured be the owners of the vessel) and mariners, and all other losses and misfortunes which have, or shall come to the damage of the said wheat, or any part thereof, to which insurers are liable; provided that the insurers shall not be liable for any partial loss on hemp and flax, unless the loss amount to twenty per cent, on the whole aggregate value of such articles ; *nor for any partial loss on sugar, flax-seed, bread, tobacco, and rice, unless the loss amount to seven per cent, on the whole aggregate value of such articles ; nor for any partial loss on salt, grain, fish, fruit, hides, skins, or other goods that are esteemed perishable in their own nature, unless it amount to seven per cent, on the whole aggregate value of such articles, and happen by stranding.”
    The policy is dated November 11, 1839, and insures 84,203.33, on 5,254 13-60 bushels of wheat.
    The bill of lading, JB, is in the common form.
    Paper C is the affidavit of Augustus Rossetty, master of the schooner Buffalo, on board of which was the wheat of the plaintiff. He says: “ Went into Buffalo creek for the purpose of getting a pilot to pilot me down the river, to the mills in the lower village of Black Rock. This morning, sailed from Buffalo creek. When we entered Black Rock harbor we took in the mainsail, and run in under the foresail and jib; and when we got opposite the first mills the pilot cried out, 1 hard u}), and keep her away;’ but she refused her holm, and struck a rock, knocking a hole in her. The water came in so fast that we could not keep her free, and thought best to run her on the towpath, and, doing so, grounded; and fearing damage of cargo, enter this notice,” etc.
    The paper D, which contains a more detailed account of the disaster, is the affidavit of the captain, Rossetty, and of two seamen, Campbell and Nagle. “Shortened sail on entering the harbor. On nearing the Frontier Mills, she struck on a rock .or stump. On examining the forecastle, the water came in so rapidly, attempted to run her on the towpath, but she grounded. Fearing damage to the vessel and cargo, noticed protest, with liberty of entei’ing the same. After which, opening her,- found her mostly full of water. Immediately employed men and lighters, and commenced unlading said schooner. The wheat being in a damaged and perishable condition, sold it to the best advantage, (or account of whom it might concern,” etc. “ On heaving down the schooner, after unlading, *found the planks stove in, making a hole about four feet square.”
    The bill of sale of the wheat gives the sum of 81,291.88, as net proceeds of sale.
    
      G. Swan, for plaintiff:
    We claim a right to recover, first, upon the ground that the policy expressly covers, not only a general, but a partial damage by perils of the sea, and by all other losses and misfortunes which could happen to the wheat; and, secondly, that if there was a stranding of the vessel, and a loss by that, exceeding seven per cent., that then we are entitled to a judgment in our favor.
    The words of the policy are general terms, including all cases. There is no exception or condition to a total or partial loss by the perils of the sea, or other misfortunes, but in one single case, and that is “ stranding.” Wo say nothing about construction. The very language of the policy is, “we insure your wheat against general and partial losses by perils of the sea, and all other misfortunes, and will pay you for all such losses, except they shall happen by stranding of the vessel, and then we will pay you, if the damages amount to seven per cent, upon the whole value of such perishable articles as you see enumerated in the policy.”
    No dispute can possibly arise but what the damage,‘in part, to the wheat was the consequence of the vessel’s striking “a stump or rock,” or of grounding in attempting to run her upon the towpath. The testimony and facts show this in the most conclusive manner. It appears by the paper D, that the wheat, in the damaged state, was sold by the captain, Rossetty, “to the best advantage, for account of whom it might concern.” That this was all done in good faith, and without barratry, and also that it was for the advantage of .the underwriters, is not disputed. Upon this branch of the subject no question, as to the right of the plaintiff to recover as lor a total loss, can arise, but whether there was a technical abandonment to the underwriters? The authorities are conclusive that, under such circumstance, *the sale of the wheat was lawful by the captain, and that it was vested in the purchasers, and that, consequently, no formal abandonment by the insured was necessary.
    The case of Idle v. The Royal Exchange Assurance Company, 8 Taunt. 755; 4 Eng. Com. Law, 272; 3 Moore, 146. The action was on a policy of insurance upon the ship and cargo, from Quebec to a port of discharge in England. The ship, on her voyage down the St. Lawrence, having, by unavoidable accident, sprung a leak, and all efforts to get her into a place of safety having tailed, was run on shore and stranded. It was the opinion of all that it would be for the interest of the insurers to have tho ship and cargo sold. Tho captain sold both at auction. The transaction was admitted to bo a fair one. The court decided that no abandonment was necessary before the action. It was also deter mined that a right to sell ship and cargo exists, in cases of necessity, and that there is no distinction, when circumstances make it for tho interest of the parties to have a sale, between an insurance upon ship and goods, and one upon freight. So, when a ship is injured by the perils of the sea, and not repairable at all, or when tho expense would exceed the value when repaired, the assured may recover for a total loss, without abandonment. 2 Barn. & Cress. 691; 9 Eng. Com. Law, 224.
    In the case of Gordon v. Mass. Fire & M. Insurance Co., 2 Pick. 249, it is held, that-if the sale of a vessel insured was necessary, it would constitute a total loss without abandonment. “ The money arising from the sale,” says the court, “must be held by the master to the use of the underwriters. It is their property without 'any abandonment; and if it come to the hands of the insurer, it may be deducted from the loss as so much paid — this being what is called a total loss with benefit of salvage.” The coui’t, too, in this case, says, that the principle is the same as to tho cargo. Here the necessity for the sale is not questioned. The property has passed out of tho plaintiff, by a sale which is warranted by the rules of law, and no imaginable advantages could result from a formal abandonment. It was for the interest of the insurers that the wheat ^should have been sold; for, without a sale, it would have been their total loss. So, in Mullet v. Shedden, 13 East, 304, where an American had insured for a voyage from Calcutta to America. The ship was seized, and the cargo condemned and sold, by order of the court of admiralty, where sentence was afterward reversed on appeal, and the property ordered to be restored, it was held a recovery could be had on the policy for a total loss, without notice of abandonment. Lord Ellenborough appears to think it might be doubtful whether a notice of abandonment would not have been necessary, if the saltpetre, in its damaged state, had been restored to the owner before a recovery could have been had for a total loss; but he remarked that, “here the property" (which had been sold exactly as in our case) “was wholly lost to the owner, and therefore the necessity of an abandonment was altogether done away.” So, in 5 Pet. 604, Justice Johnson adopts the case of Gordon v. Mass. Fire & M. Insurance Co., as founded upon “pretty substantial reasons.” See also 2 Dallas, 280; 2 Johns. 150; 15 East, 13.
    The second branch of the first proposition, to wit, that we have a right to recover, at all events, for a pai’tial loss by perils of the sea, is clear. Let us refer to the language of the policy. “The said insurance company are contented to take and bear upon them, in this voyage, the perils of the seas,” etc., “ and all other losses or misfortunes which have or shall come to the damage of the said wheat, or any part thereof, to which insurers are liable.” Now. the condition and exception is this, and this only, that if a misfortune should happen by stranding; if the wheat should be damaged by stranding — expressly, partially damaged by stranding— the underwriters would be liable for that partial damage, if it amounted to seven per cont. upon the aggregate value. Thus the insured has his remedy under this policy, first, when there should happen a total loss by perils of the sea, or other misfortunes; and, secondly, when there should be a partial loss by stranding, amounting to seven per cent. Such are the express and unequivocal terms of the policy.
    *The general rule of construing instruments, when there are exceptions, is to let the exception control it as far as its words ex-' tend, and no farther; and then, upon the case being taken ora of the letter of the exceptions, the deed operates in full force. 7 Term 216, note a. To apply this to the present case, by the general terms of. the policy, the underwriters would be liable for general losses by the “perils of the sea, and all other losses and misfortunes;” but by the'condition and exception, they are not liable for a partial loss, unless it amount to seven per cent, and happen by stranding. Therefore, if there is nastranding in the case, the damage has happened by “the perils of the sea,” or has been caused by “other losses or mislortunes,” and consequently the insurers are liable, either; for the total loss; for that, without the exception, is the express terms of the policy. The principles here contended for, will be found in Burnet v. Kensington, 7 Term, 210. It does not appear that, on board the schooner Buffalo, there was any other memorandum article specified in the policy, or any other “ goods which could be esteemed perishable in their own natures,” except the plaintiffs wheat. No question, therefore, can arise as to the loss amounting to seven per cent., as the loss upon the wheat is admitted to be much greater than the amount, and, in that particular, the exception has clearly happened.
    Will these defendants insist that their policies covered only a single kind of loss, namely, “stranding?” Will they say their object was to deceive and defraud the community? And now, if the instrument was ambiguous, and its meaning had to’ be reached by construction, would the court so interpret it, that the underwriters should receive $31.52 premium for insnring against stranding alone, from Cleveland to Black Rock? But here the insurers have expressed, in unambiguous terms, what “perils they were content to bear and take upon them,” and they are, “ all losses and misfortunes which have or shall come to the damage of the wheat, or any part thereof.” Now this is, indeed, all and every peril and loss which can happen, except one; and instead of the policy covering only a single *poril or loss by misfortuen, namely, stranding, it covers all losses, including stranding ; but when the loss happens by-stranding, there must be an average of seven per cent.; and if there should be a loss by stranding, and not such average loss, then the assured shall recover nothing.
    The form of this policy is precisely that set out in Park on Insurance, 24, and which that author says has been in use two hundred years'. Id. 15. The only difference between this and the English former policies is, that in the exception and memorandum articles, this, in speaking of the partial loss and general average, puts the loss upon a general average and stranding; whereas the latter exempts the underwriters from partial loss unless they arise from a general average, or the stranding of the ship.
    We would refer to a learned exposition of the various parts of a policy, to 2 Bur. 1172 ; also to Park on Insurance, chap. G, 98.
    Wo shall, therefore, proceed to the second proposition. We insist that the loss was by the stranding of the ship, and having exceeded seven per cent, upon the aggregate value, that we are entitled to recover for the partial loss, in the language of the policy, “ on a general average.” What is stranding? Its ordinary, as well as legal meaning is, running upon the shore. The stipulation in the policy is to bo answerable if the ship should be stranded. There is no qualification to the agreement in this respect, nor is there any provision that the stranding should take place without, or in consequence of perils of the seas or other misfortunes; and we are sure, if the court should hold the defendant to be only answerablo for loss in this way, the judges will n'o’t be supposed very greatly to desire tho escape of the corporation, by straining a. point of construction so that it may altogether elude responsibility.
    The form of the English policy will be found in Dark on Insurance, 460, appendix; 4 Wend. 33; 8 Mass. 494.
    The defendant, wo suppose, claims that the wheat was injured by the striking against a “ stump or ;ock,” and that the subsequent stranding caused no damage. In escaping from this, we suppose, he is caught upon tho first horn of the dilemma which we have presented.
    *When there is a claim resulting from a clause of general average (and this is precisely our case upon this point), and the jettison does not save the ship, but she afterward perish in the storm, there shall be no contribution. Park on Insurance, 123. So, if a partial loss happen by stress of weather, and afterward a subsequent total loss by capture, the whole loss will be attributed to the last peril. Rice et al. v. Homer, 12 Mass. 230; Dorr v. Union Insurance Company, 8 Mass. 494. This is an undisputed principle of the mercantile law, that when there are two misfortunes, either of which would subject the underwriters to loss, it will be always attributed to the last peril.
    Now let this principle apply to the case under consideration. Hero was a misfortune insured against in the body of the policy, namely, perils of the sea. The ship struck a stump or a rock, without the smallest blame that can be attributed to tho commander or crew, and bilged. This was instantly perceived, and the ship intentionally and necessarily stranded, or if tho defendant prefer, accidentally stranded. Indeed, it is of no consequence how the stranding happened, for if intentional and unnecessary, then it would be barratry, and that is covered by the policy in express terms. “ The memorandum,” says Lord Kenyon, in the case of Nesbitt v. Lushington, 4 Term, 787, “is inserted in all policies to prevent disputes, and by it the underwriters expressly provide that they will not pay the average on these articles unless it be general, or the ship be stranded. When the ship is stranded, then the underwriters agree to ascribe tho loss to the stranding, as being the most probable occasion of the damage, though that fact can not always be ascertained.” The same principle is fully sustained in the case of Burnett v. Kensington, 7 Term, 219.
    
      In tho case at bar it is not pretended the wheat was injured before the vessel struck tho “stump or rock;” and as far as it appears from the facts, the vessel was almost instantaneously stranded in an attempt to run her upon the towpafh. The *bilging of the schooner and the stranding were, emphatically, one act.
    A jury found that stranding was when tho vessel took to the ground and bilged. 7 Term, 210; finding of the jury, 212 ; of the court, 221.
    Cartillon v. London Assur. Co., cited in Wilson et al. v. Smith, 3 Burr. 1553, also recognized as law, in Park on Ins. 21, and 2 Phillips on Ins. 468; held, that a ship run aground was stranded within the meaning of the memorandum.
    Thompson v. Whetmore, 3 Taunt. 227. Where a vessel was fastened bj? a rope to the pier and took the ground, it was not considered a loss by the perils of the sea, but by' stranding. 2 Phillips on Ins. 468.
    Bowering v. Elmssie, cited in Burnett v. Kensington, 7 Term, 216. A ship was in such leaky condition that the captain and crew thought it necessary to run her on shore for her own preservation and that of the cargo. Lord Kenyon said: “I think the ship being on shore in the manner sho was, a stranding.” In principle, the case of Bowering v. Elmssie is identical with the one at bar, and the facts are almost exactly the same. Court observed “that the stranding of the ship put the fish” (a memorandum article) “in the same condition as any other commodity not mentioned in the memorandum.”
    In Carothers v. Sidenbotham, 4 Maule & Sel. 77, a ship was stranded, which was laid aground in the river Mersey, on a bank in the north side of tho pier. Lord Ellcnborough said: “ The ship has laid upon the strand, and he considered that stranding within the policy.” Here the doctrine was carried to the etymology and definition of the word.
    The case of Rayner v. Godman, 4 Barn. & Ald. 225; 7 Eng. Com. Law, 76. This was a pure question of stranding. It becamo necessary to draw off water, in order to repair the navigation. The master had the vessel placed in the most secure place he could. The water was drawn off, and the ship grounded on some piles in the river. The learned judge was of opinion that this was a stranding, and tho jury returned a verdict for the plaintiff. On motion for a new trial, *all the judges present agreed in opinion that the instructions were right, and that this was a loss by stranding.
    Barrow et al. v. Bull, 4 Barn. & Cress. 736; 10 Eng. Com. Law, 451, is exactly in point. The ship, while entering the harbor, was observed, to have struck something, b.ut her progress was not impeded. Sho was moored in the harbor, under the pilot’s directions. She soon sprung a leak, and was warped up to prevent hor from sinking. She was drawn upon the ground by .means of warps. The court, upon the authorities of Burnett v. Kensington, 7 Term, 210; Harman v. Vaux, 3 Camp. 429; Dobser v. Bolton, Marsh. on Ins. 231; Park on Ins. 187; 1 Brod. & Bing. 388; 4 Maule & Sel. 77, gave their opinion that the ship was stranded.
    Bishop et al. v. Pentland, 7 Barn. & Cress. 219; 14 Eng. Com. Law, 33. The case was this: The vessel was compelled to put into tide-water, and was there moored. She was also fastened by tackles. When the tido loft the vessel the rope broke, and she fell upon her side and was injured; held a stranding, and the underwriters liable, although the stranding might have been occasioned, remotely, by negligence. The court say: “ The proximate cause must govern in the recovery.”
    There is a very late case, Wills v. Hopwood, 3 Bar. & Adolph. 20; 23 Eng. Com. Law, 23, where all the prior cases are particularly and very ably roviewed, and where the above-cited cases liiave received the sanction of the court, and are affirmed. A vessel got her forepart upon the bank, and did not ground entirely on the mud as was the custom, but on a bank of stones, and rubbish, and sand. The vessel sustained damage by straining, and the cargo became damaged; held, that this was a stranding, and that the plaintiff could recover. The rule laid down by Lord Tenterden is this: “ But when the ground is taken under any extraordinary circumstances of time or place, by reason of some unusual or extraordinary circumstance, such an event shall be considered a stranding.” Ib. 25.
    *Tbe court will at once see the application of these cases to. the one at bar. Indeed, they are as obvious as language can make them. 2 Phil. on Ins. 467. There is another principle of law which makes in favor of the plaintiff, namely, that in all cases arising upon policies of insurance, the losses are to be attributed to the proximate; and not the remote causes. The doctrine is oxpressly laid down by the Supreme Court of the United States, in Watters v. Merc. Ins. Co., 11 Peters, 223. I have nearly quoted the language of the court in giving their opinion.
    So in the Patapsco Ins. Co. v. Coulter, 3 Peters, 237, is thesamo doctrine. The court say that it is a general principle of maritime law, that the loss shall be attributed to the proximate of two or more causes.
    In Lenie v. Janson, 12 East, 648, Lord Ellenborough said that if a ship meets with damage so as to retard her sailing, so that she is taken by the enemy, though she would have arrived safely but for the sea-damago, the loss is to be ascribed to the capture, not the sea-damage. This is upon principle laid down in the au thorities, that causa próxima non remota spectatur.
    
    Now, if running upon the shore is not stranding, we would ask what would be? It comes within every definition of the term that can be found, common or mercantile. The policy does not provide that if the stranding should take place by reason of peril of the seas, or by reason that the vessel should be in danger of foundering from bilging, as in this case, that the underwriters should be discharged. The identical loss, that the defendants engaged to indemnify against, has taken place. Of this no doubt can exist, if precedents aro to be regarded in our own, or foreign courts.
    Taking this contract in the largest sense, what is it? Why, its legal effect, it is said, is to protect the underwriters from all partial losses, except that of stranding. Be it so. Here is a stranding. There is not an authority to be found which gives the smallest countenance to the doctrine, that the stranding must not take place in consequence of some injury *in the course of the voyage. Indeed, nearly every stranding does take place by reason of injuries at sea. The doctrine is, that the insured is entitled, in all cases, to receive compensation for deterioration, happening by stranding.
    Swayne and Bates, for defendant:
    Upon the facts of this case the question is, did the loss happen by stranding?
    It did not, unless striking the stump or rock, without remaining upon it an instant, constitutes a case of stranding; for it was by that that the loss was produced.
    
      What is “stranding?” Upon this point, we refer to the following authorities:
    A stranding, in the sense of a policy, is when a ship takes ground, not in the ordinary course of navigation, but by accident, or the force of the wind or sea, and remains stationary some time. 3 Kent’s Com. 323.
    A stranding takes place when a ship, being driven by the wind or sea, and taking ground, remains stationary some time. The term implies a settling of the ship;' some resting, or interruption of the voyage. So that, pro tempore, the ship may be considered as wrecked; a mere instantaneous stoppage does not constitute a stranding. And, therefore, where a ship, on coming out of the port of Now Grimsby, struck upon a rock and fell upon her beam ends, but remained upon the rock only a minute and a half, this was not a stranding. Hughes on Ins. 230.
    These elementary principles are fully sustained by the following cases, which it is deemed sufficient to refer to. McDoug. v. Roy. Ex. Ass. Co., 4 Mau. & Sel. 503; Bishop v. Pentland, 7 B. & Cr. 219; S. C., 1 Man. & R. 49; Hearne v. Edmonds, 1 Brod. & Bing. 338; see also 4 Camp. 283; S. C. 1 Stark. 130.
    We may safely admit, for the sake of the argument, that there was a stranding when the vessel grounded; but our answer to that is, that the loss did not happen thereby, but by a *previous occurrence, that is, by striking upon the rock or stump.
    If the language of this policy were the same as that of the English policies, the result would be very different.
    There the language is that the insurer shall not be liable “ unless the vessel'be stranded.” Under such policies it is held, that if the stranding occur the insurer is liable, no matter whether the stranding caused the loss or not. Hughes lays great stress upon the phraseology, and admits fully the distinction here relied upon. He says (Hughes on Ins. 230, 231) :
    “ When a stranding of the ship occurs, the common memorandum does not impose any restriction to the underwriter’s liability. The meaning of the words, ‘ or the ship be stranded,’ is, that if the ship be stranded in the course of the voyage, the underwriters are liable for a partial loss, whether it arises from the stranding or any other cause within the scope of the policy. The words operate by'way of condition, or rather, perhaps, as expressed by Lord Konyop, by way of ‘ exception.’ And the rule of construing an exception is to allow it to control’ the instrument as far as the words of exception extend and no farther; and then, upon the case being taken out of the letter of the exception, the body of the instrument operates in full force. How, the words of the exception are not ‘unless by stranding,’ or ‘unless the damage arise in consequence of stranding,’ but simply (i. e. or unless) the ship be stranded. And, therefore, if an insurance be effected on fruit, with the memorandum, corn, fruit, etc., warranted free from average, unless general, or the ship be stranded, and the ship be in fact stranded in the course of the voyage, the underwriters are liable for the average loss arising from the perils of the sea, although no part of the loss arise from the act of stranding.”
    The preposition, that the proviso or exception in this policy., above quoted, constitutes the contract of the parties to its ful!f extent, notwithstanding the generality of the terms which precede it, is fully supported by the case of Burnet v. Kensington, 7 Term, 217.
    *It will be found, also, fully to recognize the distinction upon which we insist, as arising upon the peculiar phraseology of the proviso in this policy. In that case the language of the exception was different.
    . The following authorities will be found to throw some light upon the subject:
    A just regard must be had to ,the language which the parties employ, and no strained or unnatural sense must be ascribed to the prejudice of either party. Dow v. Hope Insurance Co., 2 Hall, 166; 2 N. Y. Dig. 149.
    Especially should attention be paid to written clauses introduced into policies for special purposes. Ib.
    A policy of insurance, like any other contract, is to be construed by the popular understanding or the plain and ordinary sense of the terms employed, unless those terms have received a legal construction or have acquired a technical meaning in reference to the subject matter of the contract. Dow v. Whellen, 8 Wend. 160; N. Y. Dig., Ib.
    The object of introducing the memorandum into the policy undoubtedly was, to protect the underwriters against injuries arising to particular articles from inherent decay; but it does not follow that the excepted risk is to be confined to tiróse injuries only. If the insurer, for the purpose of guarding against natural decay, lias made the exception broad enough to include other losses, he is entitled to exemption from every risk which is plainly and especially included in the exception. Wadsworth v. Pacific Insurance Co., 4 Wend. 38.
    An underwriter is not liable for a partial loss on memorandum articles, except for general average, unless there is a total loss of the whole of the particular species, whether the particular article be shipped in bulk or in separate boxes or packages. Ib.
    There must be an actual, as distinguished from a technical total loss. Leroy v. Governeur, 2 Johns. Cas. 226.
    Where a vessel was insured, excepting French risks, and was captured by a French privateer, and after being detained four days was recaptured by a British frigate as French property, *it was held that the insured .could not recover. Roget v. Thurston, 2 Johns. Cas. 248.
    The policy contained a clause that the insurers took no risk in port but sea risk ; the vessel, while in port, was driven on shore and stranded, so that she could not be got off unless at an expense exceeding half her value, and was taken possession of, and burned by an armed force ; but there being no evidence that the cargo had been injured by the stranding, it was held that the loss was not occasioned by sea risk, but was to be attributed solely to the subsequent burning. Patrick v. Commercial Insurance Co., 11 Johns. 14; New York Dig. 202.
    In every question of loss demanded upon a policy of insurance, it is the immediate and direct, not the remote or contingent cause of the loss, which is to be regarded in stating and maintaining the title ol the assured to recover upon the contract. Delano v. M. I. Insurance Co., 10 Mass. 347; Law v. Goddard, 12 Mass. 112; Rice v. Homer, 12 Mass. 230.
    By the terms of a policy the underwriters were not to be liable for a partial loss on grain, etc., unless the damage should happen by stranding or bilging. In a hurricane, the ship was thrown upon her beam ends, and in consequence of excessive straining, her seams opened, whereby a great quantity of water was let into the ship, but no fracture was made in her bottom. Held, that this was not a bilging within the meaning of the policy. Ellery v. Merchants’ Insurance Co., 3 Pick. 47.
    The policy ip this case seems tp have been like that under consideration, except that the underwriters did not limit their risk to losses by stranding, but included those by bilging also.
    The cases cited by the opposing counsel do not, we think, affect the positions upon which we rely. In none of'them was the queS' tion considered, whether the loss “ happened by stranding.”
    The case cited by him, Burnet v. Kensington, 7 Term, 217, is relied upon by us also. This point was there adverted to, and the case was ruled against the underwriters, upon the different phraseology of the policy. It was admitted by the clearest implication, if not expressly, that if its language had been the same as in this case, the result would have been different.
    *The cases cited by him, upon the point of stranding, are mostly the same as those cited by us.
    They show clearly that there was no stranding of the vessel by its striking upon the rock.
    That was the “proximate cause” of the injury to the wheat, and the only cause. As the parties have made their contracts, so it must be construed, and it was no more unfavorable to the plaintiff, than was the contract in 3 Pickering, above cited, to the assured.
    It is not necessary to discuss the reasons why the insurers chose to put in this clause as to wheat, and other memorandum articles. It is sufficient that it is there. It speaks for itself, and can not be misunderstood.
    As before remarked, the only question in this ease is, “did the loss complained of happen by stranding ? ”
    We say it did not, because:
    1. It happened by “ bilging.” 3 Pick. 46.
    2. It happened before the stranding occurred, and, of course, could not have happened by it.
    3. The same cause produced the injury to the wheat, and the stranding of the vessel, the former being prior in point of time.
    4. The stranding, instead of producing the loss, prevented it from being greater.
    5. In no possible sense was the injury to the wheat caused by stranding. Wo think it would be an utter perversion to the contract, and of the evidence, to hold the insurers liable in this case,
   Birchard, J.

This suit is upon a policy of insurance, and is submitted to the court on the papers, written evidence, and an agreed statement as to certain facts. It presents two questions. What loss does the policy cover? And what is stranding?

That part of the policy under which the controversy arises, is in the following words : “ Touching the adventures and perils which the said insurance company are contented to *bear, and take upon them in this voyage, they are of the seas, fire, enemies, pirates, assailing thieves, restraints and detainments of all kings, princes, or people, of what nature or policy soever, barratry of the master (unless the insured be the owners of the vessel), and mariners, and all other losses and misfortunes which have, or shall come to the damage of the said wheat, or any part thereof, to which insurers are liable; provided that the insurers shall not be liable for any partial loss on hemp and flax, unless the loss amount to twenty per cent, on the whole aggregate value of such articles; nor for any partial loss on sugar, flaxseed, bread, tobacco, and rice, unless the loss amount to seven per cent, on the whole aggregate value of such articles ; nor for any partial loss on salt, grain, fish, fruit, hides, skins, or other goods that are esteemed perishable in their own nature, unless it amount to seven per cent, on the whole aggregate value of such articles, and happen by stranding.”

By the agreed statement it is admitted, that the loss was “ a partial loss,” amounting to more than seven per cent, on the whole aggregate value of the wheat insured. That the sales produced only 81,200.

From the statement, and the evidence, these facts appear: The vessel, on going into Buffalo harbor, struck on a rock or stump, which made a hole in her bottom, four feet long and two feet wide, into which the water ran rapidly; and being under way, the captain and crew attempted to run her upon the towing path, and, in doing so, she grounded ; and, on opening the hatches, she was found nearly full of water. From those facts, it is clear that the immediate or proximate cause of the injury to this wheat and of the partial loss, was the striking of the vessel upon the rock, and bilging. That the vessel itself did not at any time remain stationary upon the rock; and that the running of the vessel aground, so far from occasioning the loss which occurred, was the means of preventing an entire or total loss.

By the terms of the policy, it is stipulated that the insurers shall not be liable for a partial loss, unless it amount to seven *por cent., and happen by stranding; and courts have no power to alter or reform the agreement.

Have the two contingencies named so bapponed as to render the defendants liable? There is a wide difference between the terms of this policy and the words of English policies, to which wo have been referred. Shall not be liable “ unless the vessel.be stranded,” “or the vessel be stranded,” implies that if a stranding happen, the insurer shall bo liable for whatever partial loss may happen, at all events, whether the stranding bo the proximate cause of the loss or not. In this case it was agreed that the partial loss should happen by stranding, or the insurer should not be liable. This is the fair and natural import of the words, and we have no right to change the words or their meaning. It may be presumed that if the plaintiff had read and understood the effect of this clause of the policy, he would not have taken it. It may bo that the change from the usual policies was intentionally made with a design to limit the risk of the underwriter, and to avoid the extent of liability which, ordinarily, the insurer would incur on iacts like these. And it may be that the phrase, “ and happen by stranding,” was insidiously inserted with an expectation that the alteration would not bo noticed. If this be so, we can only regret it, not help it. We can go no farther toward correcting the evil than to point out the difference effected by a slight chango in the words of a policy, and thus call the attention of the public to the subject, leaving it optional with men of business to accept or reject similar policies in future.

But it is claimed that this loss did “ happen by stranding.” In Bishop v. Pentland, 7 Barn. & Cress. 219, stranding was held to bo, when a ship, by accident, is on the ground or strand, and is injured thereby. “A stranding in the sense of a policy is, when a ship takes ground, not in the ordinary course of navigation, but by accident, or the force of the wind or sea, and remains stationary for some time. The vessel'must ground from an accident happening out of the ordinary and usual course of navigation.” Wells v. Hopwood, 3 Barn. & Ald. 20. To constitute a stranding, the vessel must be stationary *some time. In this case it must have remained “aground,” upon the rock or stump, which caused the bilging and loss, a longer or shorter period, so as to check the navigation and interrupt the voyage. A mere instantaneous stoppage does not constitute a stranding. This is well settled by the cases cited by counsel. Taking, then, the definition as settled by authorities, and applying the evidence, it seems to ns clear that the loss was occasioned by a peril of the sea, by the bilging of the vessel while under way.

This brings us to another point urgod by counsel. That for a loss by peril of the sea, there is no exception or condition, and that plaintiff is entitled to recover at all events. The answer to this position is, that in the agreed statement of (acts it is admitted that a partial loss only was sustained ; and in the policy it is agreed that the insurers shall not bo liable for any partial loss on grain, unless it amount to seven per cent, on the aggregate value, and “ happen by stranding.” True it is that defendant expressly agreed to bear all losses and misfortunes which have, or shall come to the damage of the wheat, or any part thereof, in the words stated by counsel; but the proviso follows it, aod excepts from the operation of these broad terms, all kinds of partial losses, unless happening from the one cause. Judgment for defendant.  