An accident happening in the course of nec essary repairs is a peril ejusdem generis with those named in the policy and is covered by the general clause; Swift v. Ins. Co., 122 Mass. 573; but not where the accident is the necessary and inevitable result of the means of repair adopted; Eureka F. & M. Ins. Co. v. Purcell, 19 Ohio Cir. Ct. R. 135.
The loss of logs which broke loose from a raft by reason of a high wind after they had been towed out to a steamer for loading in the open sea is such loss ; Munson Steamship Line v. Steiger & Co., 136 Fed. 772, 69 C. C. A. 492; rats eating a hole in a ship and let ting water in; 12 App. Cas. 527 ; the de struction of goods at sea by rats has been held a peril of the sea, the carrier not being in default ; Garrigues v. Coxe, 1 Binn. (Pa.) 592, 2 Am. Dec. 493. See Infra.
It includes striking on a sunken rock not on the chart, or a rock from which the light has been removed, or an iceberg, or a vessel •without lights ; 12 App. 514 ; or a sword fish making a hole in the ship; id. 525; rough seas, though not extraordinary ; The New port News, 199 Fed. 968.
Where the vessel's main shaft was broken by a cause coming within perils of the sea and by the necessary delays for repairs the cargo was destroyed and the plaintiff lost the entire freight, it was held that this was a claim consequent on the disabling of• the vessel by peril of the sea ; 75 L. T. 155. Where a cargo was damaged by sea water, which, during the voyage, was caused by the giving way of a bolt used to .fasten a stan chion, and it appeared that the ship had en countered very heavy weather, but the evi dence showed that the stanchion had with stood with much heavier cargo on a former voyage, and there was no fault in the origi nal construction shown, it was held that the loss came within the exemption clause ; The Exe, 57 Fed. 399, 6 C. C. A. 410, 14 U. S. App. 626.
The stranding of a steamer by reason of the negligence of a local pilot, by which the anchor dragged and a portion of her cargo was damaged, is a sea peril and the steamer is not responsible for the negligence of the pilot; The Etona, 71 Fed. 895, 18 C. C. A. 380, 38 U. S. App. 50.
It does not include: Restraint of princes and rulers; Parkhurst v. Ins. Co., 100 Mass. 301, 97 Am. Dec. 100, 1 Am. Rep. 105 ; 10 Q. B. 517; Howland v. Greenway, 22. How. (U. S.) 502 ; loss by rats; The Miletus, 5 Blatch. 335, Fed. Cas. No. 9,545 ; 17 Q. B. Div. 670 (contra, Garrigues v. Coxe, 1 Binn. [Pa.] 592, 2 Am. Dec. 493) ; destruction by vermin in certain seas, where such injury is to be expected; Martin v. Ins. Co., 2 Mass. 429; 12 App. Cas. 524; by worms ; The Giles Loring, 48 Fed. 463; confiscation of cargo as contraband by a foreign court ; 10 Q. B. 517; damage caused by an accident to machinery that would equally have occurred on land under similar condition; 12 App. Cas. 592; retardation of the voyage by which meats are spoiled; L. R. 4 C. P. 206; encountering heavy seas; The Gulnare, 42 Fed. 861; an explosion by which a hole was made in a ship's bottom and the cargo was injured by water; The G. R. Booth, 171 U. S. 450, 19
Sup. Ct. 9, 43 L. Ed. 234.
A wrongful jettison of sound cattle by or der of the master from unfounded apprehen sions during rough weather was held not a loss by peril of the sea ; Compania de Navi gacion la Flecha v. Brauer, 168 U. S. 104, 18 Sup. Ct. 12, 42 L. Ed. 398.
If the jettison of cargo or damage thereto is rendered necessary by, or due to, any fault or breach of contract on the part of the owner or master of the vessel, the loss must be attributed to that cause, rather than to the sea peril, although that may enter into the case; Corsar v. Spreckles & Bros. Co., 141 Fed. 260, 72 C. C. A. 378.
Where a cargo was damaged by water which reached it through a pipe which had been gnawed by rats, it was held that the ship was responsible for the whole damage to the cargo, less such portion as could be shown affirmatively to have been done by sea peril; The Euripides, 71 Fed. 728, 18 C. C. A. 226, 38 U. S. App. 1.
Where the loss might not have occurred but for the unseaworthiness of the ship or the negligence or breach of contract of the owner or master, it would seem that the owner is not exonerated by the fact that the proximate cause of the loss was a peril of the sea ; The Portsmouth, 9 Wall. (U. S.) 684, 19 L. Ed. 754; 14 C. B. N. S. 59.
The owner of a ship cannot enforce con tribution from the owners of the cargo to defray expenses incurred in rescuing the vessel from a peril encountered from bad seamanship or from the untrustworthy char acter of the vessel, but is entitled to such contribution where the peril incurred was one solely incident to navigation, unmixed with negligence on the part of the owner or the crew; Berry Coal & Coke Co. v. R. Co., 116 Mo. App. 214, 92 S. W. 714.
The mere fact of a collision at sea is not proof that it occurred in such a way as to be a peril of the sea ; 11 P. D. 170. The burden of proof is on the shipowner ; The Giava, 56 Fed. 243; The Mascotte, 51 Fed. 605, 2 C. C. A. 399, 1 U. S. App. 251; if goods are lost, the presumption is that it was the fault of the carrier ; Christie v. The Craigton, 41 Fed. 62.
The exception in a charter-party as to dan gers of the seas and navigation, is not ap plicable to the perils which arise from a breach of the ship-owner's obligation ; Bowr ing v. Hebaud, 56 Fed. 520, 5 C. C. A. 640, n U. S. App. 648.
The mere fact that goods are damaged by sea water entering the ship does not create a presumption of damage by peril of the sea even when aided by the presumption of sea worthiness, for the water may still have got in through negligence ; The Queen of The Pacific, 75 Fed. 74. But where sea perils have been encountered adequate to cause damage to a seaworthy ship and there is general proof of seaworthiness, the damage is presumptively due to such perils ; The Sandfield, 79 Fed. 371.
Freight or passage money paid in advance may be recovered back if the voyage be bro ken up by a peril of the sea and the carrier fails to complete the contract; Chase v. Ins. Co., 9 Allen (Mass.) 311.
See ACT OF GOD; FORTUITOUS EVENT; HAR TER ACT; PILOT; RESTRAINT OF RULES; SEA WORTHY.