:« THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW i . A TREATISE ON THE PRINCIPLES OF THE LAW OF MARINE INSURANCES IN TWO PARTS: r._ON THE CONTRACT ITSELF, BETWEEN THE ASSURED AND THE ASSURER. 0— OF THE CAUSES WHICH VACATE THAT CONTRACT. C— IN WHAT CASES THE ASSURED IS ENTITLED TO RECOVER BACK THE CONSIDERATION PAID BY HIM1 3.— AND, LASTLY, WHAT IS THE REMEDY, PROVIDED BY THE LAW, FOR EITHER PARTY AGAINST THE OTHER. By FRANCIS HILDYARD, M. A, OF THE INNER TEMPLE, ESa-j B AHHISTER-AT-LA W. FROM THE LONDON EDITION. HARRISBURG, Pa.: PUBLISHED BY L G. M'KINLEY & J. M. G. LESCURE. NORTH THIRD STREET. 1847. mi H A R R I S B U R G , PA.: PRINTED ON m'kINLF.Y AND LESCURe's STEAM I'OWEU-I'TlESSEa. V PREFACE. I Bi:a to oiTer this 'f realise to the attention of the Profession, of wiiich 1 am a Member, as well as to that of Underwriters and Mercantile Men : with an earnest desire, on my part, that, on trial, it may be found capable of supplying the respective wants of both. FRANCIS HILDYARD. Innek Temple, October, 1846. 74BS5? I.MRODUCTION. •'Policy," is the name given to the instrument by which the contract is made between the Assurer and the Assured ; and it is not signed by both parties, as in most contracts, but only by the Assurer, who is on that account denomi- nated an underwriter, (a) The present Treatise is confined to Policies of Assurance on the Body of a Ship, &c., and on the Goods and Merchandises laden thereon, and which are therefore called Marine Policies. This instnnnent, though not ranking with specialty contracts, not being under seal, has, however, for many centuries, been held by the Courts of Justice of this country, and likewise by the courts of foreign countries, a most sacred agreement between the parties to the instrument. This "policy" contains the seeds of all the principles of the law of Marine Assurances, which have by the lapse of so many years grown up to such a great height. These principles, which are generally considered to be extremely abstract and difficult in the comprehension of them, which, however, will nevertheless be found as consistent with themselves, as much so, or more cer- tainly, perhaps, than tlie principles of some more modern laws, are to be gathered, if at all, with certainty from the meanings and constructions which the Courts of Common Law have from very early times placed upon every word, I woidd say, at any rate upon every sentence of that instrument called a Marine Policy of Assurance. In such a research, the arguments and judg- ments of some of the most acute and learned Judges, both of early and later times, will form tlie chief ingredients in the establishment of such a fabric, nor will the opinions of learned writers, both British and foreign, be found insuffi- cient in affording great additional light upon this ancient subject of law. The legal meanings and constructions which have been put on the words and terms used in this instrument, and acquiesced in through a long series of years, and judicial decisions, will supply the matter, and Ibrm the subject of this Treatise. Tlie Treatise consists of two parts. In the first part it has been my endeavour to get the contract of the parties from the words and terms used in the policy, and that would have been sufficient for our purpose, if a clear understanding of the contract of the parties from the words and terms used was all that was required. Unfortunately, however, in the dealings in the world and among mercantile men, especially with respect to this particular contract, which requires more ^'•bonafuhs^'' than any other, it is not only the real con- tract that is enougli to protect jiarties entering into this agreement, which is intended for tlie encouragement and protection of persons who risk not only their profits but their property upon an clement the vicissitudes attending which are so well known. Besides the contract they enter into, there are many other considerations to be taken into the account, in order that this system of protec- («) Park Ins. p. 1, 8th edit. INTRODUCTION. tion should not be abused. Consequently the subject of the principles of the law of Marine Insurances must incliuh; all tliose questions so well known to the law relative to the voidness or avoidableness of this contract as well as others. I, therefore, brieily mention that, having endeavoured, by ^oin V. Walker, 5 Henry v. Staniforth, Hesselton v. Allnutt, Hey man v. Parish, Hewitt V. Flexney, Hibbert v. Champion, V. Halliday, V. Martin, V. Pigou, Secretan, London Assurance, Blackiston, Glover, Malcomb, Richardson, Hill V. Hills V. Hodgson V. V. V. V. H. Haddow v. Parry, Hadkinson v. Robertson, Hagedorn v. Bell, V. Oliverson, v. Reid, V. Whitmore, Hahn v. Corbet, Hall v, Molinoux. Hamilton v. Mendez, Hammond v. Reid, Harding v. Carter, Hare v. Travis, Harford v. Maynard, Harman v. Kingston, V. Vaux, Harratt v. Wise, Haughton v. Ewbank, Harrington v. Halkeld, 805 413 646 62 644 474 271 81 361, 379, 389, 391 218 529 262 304 38, 263 459 315 804 252 Hoffman v. Marshall, Hogg V. Goulney, V. Horner, Hollinirworth v. Brodrick, V. Broderick, Hooper v. Lusby, Horncastle v. Suart, Hoskins v. Pickersgill, Hore V. Whitmore, Housten v. Robertson, Horneyer v. Lushington, Hubbard v. Glover, Hucks v. Thornton, Hudson v, Harrison, Hughes V. Cornelius, Hull V. Cooper, Hunt V. Royal Exchange, Hunter v, V. V. V, Hurry v. Leathley, 221 Parker, Potts, Wright, Royal Exchange, Page 798 663, 799 503 229, 259 762 301 712 134 460 473 82 641, 784 43 760 262 285, 344 482 485 247 110 693 68 475 432 47 270 191, 576, 581 480 481 241, 764 127 788 9 164 88 670 556 158, 192, 718 613 110, 364 433 66, 711 176, 613 358, 408, 433, 437 237, 536 379, 807 277 764 152, 454 TABLE OF CASES. XUl I. Idle V. Royal Exchange, Inglis V. Vaux, Irving V. Richardson, J. Jacob V. Jansen, Jarrat v. Ward, Jeffereys v. Legendra, Jenkins v. Mackensie, Jolly V. Walker, Jones V. Schmoll, V. Pearce, Johnson v. Shippen, V. Sheddon, Johnston v. Sutton, Kellner v. Le Mesurier, Kelly V. Walton, Kensington v. Inglis, Kent V. Bird, i Kenyon v. Berthon, Kewley v. Ryan, Kill V. HoUester, Kindersley Appellants ' Respondents, King V. Glover, Kingham v. Robins. Kingsford v. Marshall, Kingston v. Knobbs, Knight V. Cambridge, Knox V. Wood, Koster v, Reid, V. Eason, Kruger v. Wilcox, Kulen Kemp v. Vine, Lambert v. Liddard, Lanor V. Anderdon, Langhorne v. AUnutt, V. Hardy, Laroche v. Oswin, Latevvard v. Curling, Levabre v. Walter, } V. AVilson, 5 Law V. Hollingsworth, Lawrence v. Aberdein, V. Sybothani, Leatham v. Terry, Page 430 219 455 636 247 270 404 244 269 789 377 452 631 658 433 648 49 667 82 784 Chase 729 24, 47 796 464 207. 685 322, 334 48 352 555 781 76, 809 242 684 218, 259 193 237 517 Page Lee V. Beach, 105, 136 Le Cheminant v. Pearson, 442 Lecras v. Hughes, 18, 51, 440 Leigh V. Mather, Lemecke v. Vaughan, Le Mesurier v. Vaughan, Le Pypre v. Farr, Lethulier's Case, Lever v. Fletcher, Lewen v. Swasso, Lewis V, Rucker, V. Cormac, Lilly V. Ewer, liivie V. Janson, Long V. Allen, Douglas, Lockyer v. Offley, Loraine v. Thomlinson, Lothian v. Henderson, Lowry v. Bourdieu, Lubbock V. Potts, V. Rowcroft, Lucena v. Craufurd, Lucey v. Ingram, Lundie v. Robertson, Lynch v. Hamilton, V. Dunsford, M. 178 81 646 29 197 639 336, 342, 784 37, 263, 440 652 698 271, 443, 449 771 788 153, 328 765 664, 738 72, 761 298, 659, 764 417 7, 25, 52, 66 115 800 580 580 516, 245, 225 115 276 258 423 Maanss v. Henderson, Mann v. Forrester, Mallony v. Barber, Macdougal v. Royal Exc Macdowall v. Eraser, Macarthy v. Abel, M'Andrews v. Bell, V. Vaughan, Mackenzie v. Shedden, V. Duff, Maeburn v. Leckie, Manning v. Newnham, V. Irving, Mansfield v. Maitland, March, Earl of v. Pigot, Marsden v. Reid, Marsh v. Robinson, Martin v. Crockat, V. Sitwell, Mason v. Scurray, V. Simeon, M' Andrew v. Bell, Mathic v. Potts, M'Intosh V. Marshall, 535 535 538 hange, 458 610 391, 424 583 416, 471 164 763 379 406 813 74 123 242, 606 807 433 751 465, 472 547 804 152, 302 584 XIV TABLE OF CASES. M'Intosh V. Slade, M'lver V. Henderson, M' Masters v. Shoolbred, May V. Christie, Meilish V. Allnutt, V. Andrews, Meager v. Smith, Mead v. Davison, Meretony v. Dunlop, Metcalf V. Parry, Meyer v. Gregson, Meyne v. Walter, Middlewood v. Blakes, Mills V. Roebuck, Page 115 388 405 487 193, 797 221, 243, 365, 412 800 11, 572 154 243 770 601 262 97 Milles V. Fletcher, 113, 374, 401, 403 Milward v. Hibbert, Minett v. Anderson, V. Forrester, Mitchell V. Edie, Moir V. Royal Exchange, Moody V. Surridge, Moore v. Taylor, Montgomery v. Richardson, v. Eggington, 505 157 553 367 683 465 219 798 160 763 427 247, 330 159. Mork V. Abel, Morrison v. Parsons, Moss V. Byrom, Motteux V. London Assurance, 199, 250, 784 Mount V. Harrison, 430 V. Larkins, 177, 229, 260 Mouse's Case, Muller V. Hartshorne, 497 797 365, 412 106, 136 248 39 509 Mullett y, Sheddon, Munro v. Vandam, Murdock v. Potts, Murphy v. Bell, Myer v. Vande Deyl, N. Naylor v. Taylor, Ncale V. Reid, V. Erving. INelson v. Salvador, Nesbitt v. Lushington, Newby V. Read. V. Reed, Newcasde Insurance Company v. Macmorrow, 663 Noble V. Kennoway, 151, 203 Nonnen v. Kcttlewell, 193 Nutt V. Bourdieu, 336, 340 317, 393 ^9 803 683 303, 305, 475 352 775 O. Page Oddy V. Bovill, 712 Ogle V. Wrangham, 9 Ohrly V. Dunbar, 788 OHver v. Cowley, 107 Oom V. Bruce, 759 Oswell V. Vigne, 718 Ougier V. Jennings, 205, 229 Page V. Thompson, 313 Palmer v. Blackburne, 456 V. Marshall, 8 V. Pratt, 18, 79 Parfitt V. Thompson, 111 Park V. Hammond, 538 V. Hebson, 170 Parker v. Beasley, 555 V. Carter, 535 V. Potts, 106 V. Smith, 554 Parkin v. Tunno, 417 V. Dick, 661 Parkinson v. Collier, 260 Parmeter v. Todhunter, 432, 433 Parr v. Anderson, 245 Parry v. Aberdein, 402 Parsons v. Scott, 388 Patrick v. Earaes, 161 Paterson v. Powell, 762 Patterson v. Ritchie, 392 Pawson V. Watson, 602, 664 V. Barnevelf, 667 Pelly V. Royal Exchange, 85, 137, 197 Petei-s V. Milligan, 525 Phillips V. Barber, 277, V. Headlam, 117, Phillipps V. Irving, 177, 226, Phyn V. Royal Exchange, Pipon V. Cope, Piescall v. Allnutt, Pirie v. Anderson, V. Steele, Pittigrew v. Pringle, Planehe v. Fletcher, Plantamour v. Staples, Phnnmerv. Wildman. Poiugdestre v. Royal Exchange, PolhiU v. Walter, Pollard V. Bell, I'ond V. King, Potts V. Bell, Power V. Butcher, 351 118 260 331 132 661 806 518 686 638 148 518 517 572 719, 737 28 644 549 597, 146, TABLE OF CASES. XV Power V. Whitmore, Powles V. Iiines, Price V. Boll, V. Noble, Proctor V. Thorbourne, Puller V. Glover, Page 519 8, 36 727 519 111 74 Racker v. Uolling!)ury, Raine v. Bell, Ranken v. Reeve, RatclifFe v. Shoolbred, Rawlinsou v. Jansen, Rayner v. Godmoml, Read V. Bonliani, Redman v. Wilson, Reid V. Darby, V. Derby, Reyner v. Hall, Rich V. Parker, Richardson v. Anderson, V. London Ass V. Nourse, Rickard.s v. Mnrdock, Rickinan v. Carstairs, Ridsdale v. Newnham, Ritcliic V. Bousfield, Roebuck v. Hamerton, Roberts v, Fonnerau, Robertson v. Carruthers, Clarke, Ewer, Hamilton, Majoribanks, French, Gleadow, Morris, Maylor, Davis, Robinson Rogers V, V Rohl V. Parr, Roscow V. Corson, Ross V. Hunter, V. Thwaites, Rotcli V. Edie, Roulli V. Thompson, 57. 62, Rouxv. Salvador, 149, 353, 355, 431, 457 Royal Exchange v. Idle, 379 259 627 236 241 581 647 460 433, 818 271 806 377 486 716 481 226 525 539, 583, 596 195 110, 684 115 762 573 379 379, 413 90, 309 71 610 805 9 648 482 775 276 327 330 509 310 761 Rucker v. Allnutt, V. Palsgrave, Russel v. Bangley, v. Boheme, Rutledge v. Barrel, 797 534, 557, 558 809 667 S. Salisl)ury v. Townson, Saloucci V. Johnson, 307, V. Woodmas, Salvador v. Hopkins, Samuel v. Royal Exchange, Saville v. Campion, Schroeder v. Vaux, Scott V. BourdUlon, v. Irving, v. Thompson, Sea Ins. Comp. of Scotland Gavin, Senat v. Porter, Sewel V. Royal Exchange, Seamen v. Fonnerau, Seller v. Work, Sharp V. Gladstone, Shaw V. Felton, Shee V. Clarkson, Sheppard v. Chewter, V. Wright, Sheriff V. Potts, Shipton V. Thornton, 114, Shirley v. Wilkinson, Shoolbred v. Nutt, Sibbald V. Hill, Siffken v. Allnutt, V. Lee, Simeon v. Bazett, Simonds v. Hodgson, Simond v. Boydell, and Loder v. White, Smith V. Lascelles, V. Plummer, V. Robertson, V. Scott, V. Surridge, 110, V. Calogan, V. Readshaw, Smout V. Ilbery, Soares v. Thornton, Solly V. Whitmore, Sparkes v. Marshall, Sparrow v. Carruthers, Spencer v. France, Spitla V. Woodman, SpHdt V. Bowles, Stapleton v. Nowell, Stamma v. Brown, Steele v. Lacy, Stewart v. Aberdeen, V. BeU, Page 258 707, 745 715 212, 214 113, 1.58 330 652 465 557, 561 249 V. 181 808 303, 635 578 538 426 156 553 486 501 236 137, 141, 144, 148 612, 621 133 575 646, 764 719 314 16 752 527 72, 536 24 392 274 176, 235 538 702 572 329 259 70 151 27 193 427 796 322 718 558, 564 152 XVI TABLE OF CASES. Stewart v. Dunlop, V. Wilson, 12, 33 Page 613 111 759 8, 63 236 49 152 121 149 806 647 315 710 258 709 517 24 643 707 Stevenson v. Snow, Stirling v. Vaughan, Stitt v. Warden, Stockdale v. Dunlop, Strong v. Natally, Suart V. Powell, Sutherland v. Pratt, Sutton V. Buck, Ship, The" Acteon," "Adelaide," "Betsy," "Beaver," "Christopher," "Copenhagen," "Lady Durham, "Emanuel," "FladOyen," "Fanny and Elmira," 379 "Good Hope,'^ "Gratitudine," "Jane," " Jonge Tobias," "Louise Charlotte de Guldeneroni," "Maria," "Matchless," "Mercurius," "Mills Frigate," "Neptunus," "Protector," "Ringende Jacob," "Sarah Christina," "Waterloo," " Woodrop Sims," 652 377, 521 258 643 648 747 634 643 96 315 115 643 643 258 274 T. Tabbs V. Bendleback, Tait V. Levy, Tanner v. Bennett, Tasker v. Scott, V. Cunningham, V. Wilmer, Tate V. Meek, Tatliam v. Hodgson, Taylor v. Curtis, v. Wilson, v. Woodness, 'J'oed V. Martin, Thelluson v. Bewick, V. Flctclier, . V. Sheddon, 32, 266, 705 110 409 76 232 261 330 276 502 248 701 807 441 434 811 Thelluson v. Staples, Thellusson v. Fergusson, Thomas v. Foyle, Thompson v. Charnock, V Page 681 675, 677 805 784 Royal Exchange, 359, 437 — v. — v. — V. Rowcroft, Taylor, AVhitmore, Tiernay v. Ethrington, Todd V. Ritchie, V. Reid, Tongue v. Watts, Toulmin v. Anderson, Touteng v. Hubbard, Townson v. Guyon, Truscott V. Christie, Tunno v. Edwards, Turpin v. Bilton, Tyler v. Home, Tyrie v. Fletcher, Tyson v. Gurney, U. Usher V. Noble, Usparicha v. Noble, 420 163 459 200 339 560 160 344, 635 312 235 170 44, 490 543 628 757 300, 707 454 319 Vallance v. Dewar, Vallejo V. Wheeler, 231, Vandyck v. Hewitt, V. Whitmore, Vanharthals v. Halhead, Violett V. Allnutt, Verdon v. Wilmot, Vezian v. Grant, Victoria v. Cleeve, Prescott, Visgar v 206, 594 322, 330, 334, 339 763 646 646 218, 237 696 671 700 313 AV. Wake v. Atty, Walker v. Maitland, Wales V. Eames, AV^illace v. TcUUir, Warre v. Miller, Warwick v. Scott, Wharton v. De la Rive, Watson V. Clarke, Watt V. Morris, Way V. Modigliani, 110. 170, 179, 106. 617 284 157 537 259 197 762 123 106 231 TABLE OF CASES. XVU 121, 127, Webb V. Thomson, Webster v. Forster, Wedcrburn v. Bell, Weir V. Abordoin, Wells V. Williams, V. Ilopwood, Weston V. Eames, Westbiiry v. Aberdein, Whitehead v. Vaughan, Whitiinffham v. Thornborough, Wilkie V. Geddes, Wilkinson v. Coverdale, Page 696 579 752 251 320 462 610 579 535 626 107 537 Williams v. East India Company, 625 V. liOndon Assurance, 523 V. Shee, 218, 259 V. Marshall, 693 Williamson v. Innes, 170 Wilson V. Ducket, 627 Page Wilson V. Foster, 405 V. Marry at, 633 V. Millar, 379, 521 V. Royal Exchange, 24, 407 V. Smith, 465, 493 77 255 17, 71, 319 808 573, 704 231 808 677 Winter v. Haldimand, Wolfe V. Claggen, Wolff V. Horncastle, 4, Woodward v. Larkins, Woolmer v. Muilman, Woolridge v. Boydell, Wright V. Barnard, V. Shiffner, Young V. Irving, V. Turing, 266 397, 818 Vol. VII.— B THE PRINCIPLES OF THE LAW OF MARINE INSURANCES. PART I. SECTION THE FIRST. THE ASSURED. A. B. "as well in own name as for and in the name and names of all and every otlier person or persons to whom the same doth, may, or shall apper- tain, in part or in all, doth make assurance, and cause and them, and every of them to be insured." The policy, it will be seen, in the commencement of the first sentence above cited, sets out by declaring on tlie/oce of the policy either the name of the assured himself, or the name and firm of the broker or agent employed by him to make the insurance, and the name or names of all and every other person or persons to whom the same doth, may, or shall appertain, in part or in all, doth make assurance and cause and them, and every of them to be insured. And the first question that is necessary to be inquired into is this, "What persons are by the law of tliis country considered as capable to represent the character of the assured in a marine policy of assu- rance?" To this question the answer is, that all persons whatsoever of sane memory, wherever domiciled, are permitted by law to be "^the ^ ^.^ -i assured, with one single exception, and this is, in respect of the L disability of alien enemies. This rule of law (which is not confined to this contract, but extends equally to all known to the law) is founded upon grounds of public policy, and it amounts, in fact, to saying that no contract between a British sichjec't and an enemy is valid bij the common law, and such a con- tract is as much prohibited as "if it had lieen expressly forbidden by act of Par- liament ; and a contract of this description is incapable of being enforced in a Court of Justice, either of law (a) or of equity, (6) unless the alien enemy (a) Bell V. Potts, 8 T. R. 548. Furtado v. Rogers, 3 B. & P. 191. And see post, in this treatise, part 2, sec. 2. (6) Albretch v. Sussman, 2 Vcs. & B. 32-3. Z THE ASSURED. come into this country and reside, with the license of the Lord the King. Boulton and another v. Dobree. (c) It is to be observed, however, that the right of action is only suspended until the return of peace, if the contract were legal, and made before the commencement of the war. And it has therefore been decided, in a case of FUndt v. Waters^ [d) that a British agent who had made a policy of insurance on behalf of alien enemies, who became enemies after the loss happened, but before the commencement of the action, was enti- tled to recover against an underwriter, who had only pleaded the general issue ; for such temporary suspension, during the war, of the assured's right to sue upon a contract, legal at the time, and liable to be enforced upon the return of peace, cannot be taken advantage of under a plea of perpetual bar, there being no legal disability in the plaintiff on the record to sue. Lord Ellenborough says, "The defence of an alien enemy must be accommodated to the nature of the transaction out of which it arises ; it may go to the contract itself on which the plaintiff sues, and operate as a perpetual bar; as the objection may, as in a case of this sort, be merely personal in respect to the capacity of the party to sue upon it. Here the objection is taken upon the general issue, r *q 1 which is a plea of perpetual bar, and if found against the plaintiff L J *would have concluded him for ever : so that should peace be established to-morrow between the two countries, and the Crown should not have interfered to seize the debt, yet on this plea of bar the plaintiff would have been for ever estopped to sue for his debt. But here the objection is only of a temporary nature : the contract itself was perfect at the time it was made j the trade was made with an alien friend ; the insurance, the loss and cause of action, had arisen before the assured had become enemies. When, therefore, they became such it was only a temporary suspension of their own right to sue in the Courts here as alien enemies ; but that objection cannot be carried fur- ther, nor be applied to the plaintiff as their trustee, who is a subject of the king ; otherwise, if it could avail upon this plea, it would be making that a perpetual, which is in its nature only a temporary bar." Secondly, under this head it is necessary to refer to the statute 28 Geo. 3, c. 56, which after repealing a former statute, 25 Geo. 3, c. 44, the provisions of which were thought too rigid, enacts, "That it shall not be lawful after the passing of this act for any person or persons to make, or cause to be made, any policy of assurance on any ship, or vessel, or upon any goods, merchan- dises, effects, or other property whatsoever, Avithout first inserting, or causing to be inserted, the name or names, or the usual style and firm of dealing of one or more of the persons interested in such assurance ; or without, instead thereof, first inserting the name or names of the usual style and firm of dealing of the consignor or consignors, consignee or consignees of the goods or pro- perty so to be insured ; or the name or names or the usual style and firm of dealing of the person or persons residing in Great Britain who shall receive the order for, and make such policy, or of the person or persons who shall give the order or directions to the agent or agents immediately employed to negotiate or make such policy." The statute further declares, "tliat every policy made or underwrote contrary to the true intent and meaning of this act shall be null and void to all intents and purposes." V *A ~\ *^'^ ^^^^ statute it has been decided that although it be not neces- L -J sary to specify in the declaration what character the person making the insurance bears, namely — whedier consignor or consignee, &c. ; yet having averred in the declaration, that they answered a particular description men- (c) 2 Camp. 162. See the subject of insuring the /?roper/»/ of an enemy , treated of in Park Ins. 8th edit. p. 522. {d) 15 East, 260. THE ASSURED. 3 tioned in the statute, they were bound to prove it. Bell v. Janson. (a) As this statute 28 Geo. 3, recites in the preamble, "tliat it had been found by experience that great mischiefs and inconveniences had arisen to persons inter- ested in ships, and to persons using commerce, from the acts of 25 Geo. 3, c. 44, and that it was expedient that other and more convenient rules should be made for the regulating insurances on ships, &c., than those contained in the said statute," the Court of Common Pleas, in the case of Wolff and others v. Ilorncastle, (6) considered themselves bound to put the most liberal construc- tion on the statute that the words would bear. This case was an action on a policy of assurance brought by the plaintiffs, by their names and firm of Messrs. Wolffs and Dorville, "as well in their own names as for and in the name and names of all and every other person or persons to whom the same did, might, or should appertain in part or in all." The defendant underwrote the policy for 200/. : there was a total loss. " The first count of the declaration, averred that the insurance was made by the plaintiffs, as the agents of one Jockum Brink Lund, and for his use and benefit^ and the plaintiffs, at the time of the making thereof, were persons residing in Great Britain, and did make the policy as such agents, and the style and firm of "Messrs. Wolffs and Dorville," inserted in the policy, was at the time of the making tliereof, the usual style and firm of the firm of them the plaintiffs, and that Jockum Brink Lund was then interested in the goods to the amount insured. The verdict was found for the plaintiffs, subject to the opinion of the Court on a case. Bidler, J. — "It was a real bonu fide transaction, a loss has happened, and tlie underwriter now chooses to say, that for *want of a strict compliance with the sta- r ^k -, tute 28 Geo. 3, he shall be excused from paying the money. If, L ^ J however, the defendant can bring his case within the statute, he has the riorht to do so. But has the defendant brought his case within the meaning of the statute.^ Has he even brought it within the words of the statute.'' And even if he brought it within the words and not within the meaning, I sliould be clearly of opinion for deciding against him ; and, in so doing, I should follow the directions of the statute, which in the last clause enacts, 'that every policy or policies of insurance made and wrote conti-ary to the true intent and mean- inp^ of this act, shall be null and void." Let us see, then, whether the plain- tiffs do, or do not, come within any of the descriptions of persons in the last statute. These descriptions are four — (1) the consignor : (2) the consignee; (3) the person receiving; (4) the person giving the order. It is clear that the plaintiffs are not the consignors : but I am not so sure that they are not the consignees. It is true that the goods were originally consigned to another person, but the case must be considered as it stood at different times : though the Cudbear Company were the consignees at first, it does not folloAV that they continued to be so. What is a consignee? A person residing at the port of delivery, to whom the goods are to be delivered when they arrive there. Lund does not trust the Cudbear Company without securing himself: he therefore sends the bill of lading to the plaintiffs, who are his general agents, in order that he may be secure of being paid for his goods. If the Cudbear Company had received the goods, they would have been the consignees, but they refused to receive them : then who was entided to receive them ? to whom could the right belong but to the persons who had the bill of lading, and who were the general agents of the consignor. From the moment the Cudbear Company refused to have any thing to do with the goods, the plaintiffs became the consignees. If this be so there is no objection to the policy, and I am satisfied I do not carry this (a) I M. & S. 201. ((,) 1 B. & P. 316. 4 THE ASSURED. r *o -1 construction too far, when the justice of the case is *\vith the L J phiintiffs. But there are two other characters mentioned in the act. The next is the person who receives the order to insure ; let us see whether these plaintiffs had not an order to make insurance. The goods were originally intended for the Cudbear Company, but they were sent accompanied with a letter, which stated in the clearest terms, that Lund intended that they should be insured. The Cudbear Company having refused to take the goods, could the plaintiffs, who were the general agents of Lund, could any man of sense read his letter and doubt of his intentions.^ In giving his reasons, he says, that the season is so far advanced, he does not think it safe to send the goods without their being insured. The plaintiffs must have been blind if tliey had not seen it was his intention to have them insured. Then what Avas his intention? Why that they should be insured. It is agreed that a general agent has a right to exercise his discretion for the benefit of his principal : he must act on the spur of the occasion, and if nothing had passed, I have doubts whetlner the consignor would not have been liable to pay the premium. But the plaintiffs inform the consignor of their having made the insurance, and he highly approves their acts, which brings the case witliin the maxim that 'omnis ratihabitio retrotrahitur mandato priori aequiparatur. ' I am clear therefore, that the plaintiffs were the persons who received the order to make this insu- rance witliin the description of the act of Parliament. But there is still another character to be considered : the statute mentions in the last place, the person who gives the order to make the insurance. Now in my opinion, it is impos- sible to state a case that comes more directly within the act of Parliament than this. Wlio were the persons immediately concerned, who immediately em- ployed the broker, who gave the immediate order for insurance, but the plain- tiffs.^ It appearing therefore that they come Avithin the words of the act of Parliament, the case stands clear of all objections, and is in law, conscience, and justice with the plaintiffs." The other Judges, Heath, J., Rookc, J., concurred. Postea to the plaintiffs. r- s;7 ~\ *Ii^ ^^^^ case of Lucena v. Craufurd, (a) in error in the House ■- -' of Lords, from the Court of King's Bench, the action was on a policy of assurance, and the first count averred that tlie king, by virtue of the powers vested in him by 35 Geo. 3, c. 80, had issued his commission, under the Great Seal, directed to certain commissioners, naming them and nominating them commissioners for the purposes mentioned in that act, and authorizing them to take into their possession ships and goods belonging to subjects of the United Provinces, which had been or might be detained in or brought into the ports of this kingdom, and to manage, sell, and dispose of the same to the best advantage, according to such instruction as they should receive from the king in council, liefore any declaration of war against the United Provinces, one of his Majesty's ships took several Butch East Indiamen, and carried them into St. Helena; the commissioners, with the consent of the Lords of the Treasury, insured them "at and from St. Helena to London.^^ War was soon after declared against the United Provinces, and the ships were finally condemned as prize to his Majesty, "as having belonged, when taken, to the subjects of the United Provinces, since become enemies." Upon a loss hap- pening, the commissioners declared on tlic policy, and averred the interest to be in the king. The verdict was found for the plaintiffs below, and the Lords, on the writ of error, decided that the action well lay. At the trial the Lord Cliicf .Justice Ellenborough directed the jury that, upon the evidence, the plaintiffs might maintain the issue as to tlie second count, and (o) 1 Taunt. 325. THE ASSURED. 5 that his Majesty, at the times when the ships and goods sailed from St. Helena, and when the policy of insurance was made, and from thence until, &c. , at the time of the loss of the Houghlcy and Surcheance, had an insurahle interest in the said ships and goods ; and further, that if any of his Majesty's suhjects make an insurance for the benefit and on account of his Majesty, his Majesty may adopt and ratify the same ', and that the insurance *in the r «o -i second count was adopted by his Majesty. And the jury found L J their verdict for the plaintiffs as to the second count, with £800 damages. The same doctrine was laid down in the case of Stirling v. Vaughan. («) In a very recent case in the Court of Exchequer, of Poivles and others v. Innes^ (b) a question was discussed and settled by the Court (consisting of Lord jibinger, C. B., Parke, B., and Gnrncy, B.,) whether an assured, who assigns away his interest in a ship or goods, after making a policy of insurance upon them, could sue upon the policy j and it was held by the Court that he could sue only in one way, viz : as a trustee for the assignee, in a case where the policy is handed over to him, upon the assignment. Lord Abinger says : — *'The contract of insurance was originally only a contract of wager; since the Legislature has adopted it, it is a contract of indemnity only, and nobody can recover who is not really interested. The policy is but a ' chose in action,' and cannot pass merely by the assignment of the ship." And Parke, B., says : "If the policy had been handed over with the bill of sale, or there had been an order to the brokers to hand it over, the case would be different — then the parties misfht sue as trustees for the purchaser ; but we cannot infer that, no facts being stated in the case to warrant such an inference." (c) In the case of Palmer v. Marshall, (d) Avhere it was alleged in the declara- tion that the plaintiff, by M'C4hie and Page (his agents in that behalf,) caused to be made a certain policy of insurance, it was held by the Court of Common Pleas that it was necessary for the plaintiff to prove that M'Ghie and Page were his agents. Upon this act it has also been held that it is not necessary, where a policy is made by an agent, to add the word agent, or any other de- scription, to his name in the policy itself; (e) and it has also been decided that a *policy made by a broker, describing himself therein as agent, has j- ^^^ -, sufficiently complied with the requisition of the statute. It is to L J be presumed, after verdict, that the plaintiff fell within one or other of the de- scriptions in the act. (a) And Lord Ellenborough held at Nisi Prius, that an allegation, both in the policy and the declaration, that the policy was made for the plaintiffs by the firm A. B. C, was satisfied by proof that it was made by the firm A. &; B., there being two firms having two members in common, Dickson v. Lodge, (b) Before the passing both of 25 Geo. 3, and 28 Geo. 3, it was decided that the husband of a ship had no right to insure for any part-owner, without his particular direction, nor for all the owners in general, without their general direction, or something equivalent to it, French v. Backhouse, (c) But it has recently been held in the case oi Pobinson and another, Assignee, ifC, V. Gleadow and others, (d) that where one of several part-owners of a (a) 11 East, 623, post. (b) 11 M. & W. 10. (c) See Sutherland v. Pratt, 12 M. & W. 16, SLmi post, sec. iv, (d) 8 Bing. 82. (e) De Vignier v. Swanson, B. R. Mich. 39 Geo. 3, Park Ins. 17. (a) Bell V. Gilson, 1 B. & P. 345. Mellish v. Bell, 15 East, 4. (b) 1 Stark. 226. (c) 5 Burr. 2727. Bell v. Humphries, 2 Stark. 345. Ogle v. Wrangham, coram Ken- yon, sit. Guild. H. T. 1790, Abbott on Ship, p. 92, 6th edit. (d) 2 Scott, 250 ; 2 B. N. C. 156. b LOST OR NOT LOST. ship, and who was the managing owner, without any express authority from the others, effected a joint insurance upon the entire ship, charging the premium and commission in the ship's accounts, which were open to the inspection of, and were actually inspected by, the other owners, and not objected to, the jury were warranted in tinding that the managing owner had a joint authority to make an insurance for the whole ; and that all the owners were liable to the amount of the premium and commission, notwithstanding the credit was, in the first instance, given to the managing owner alone, it appearing that the broker was ignorant of the name of the other owners. And if part-owners of a ship, be in partnership generally, an order to insure given by oyie, renders all liable. Hooper v. Lusby. (e) This first section, which is now concluded, treats solely of the first sentence r *in 1 ''^ ^^ pohcy, which was taken as the head *of this section, and, L J which the reader will observe, called upon me, according to the plan I have proposed, merely to state briefly the persons capable of being the assured in the policy of insurance., and what rules have, by Legislative enact- ments, been laid down to restrict such parties who legally can sue on the policy to those persons alone who answer the several descriptions mentioned in the act of Parliament, in every case of a contract of insurance made by the assured, or his agents, with the assurers. Let us now proceed to the next immediate words of the policy. SECTION IL "lost or NOT LOST »» These words "lost or not lost," which follow the word "insured" in the policy, are words of the greatest importance in this contract ; and they are peculiar to English policies, and are not inserted in the policies of foreign countries, (o) They are certainly very hazardous for the underwriters j for their meaning and purport are, " that if the ship or goods should be lost at the time of the insurance, still the underwriter, provided there is no fraud, is liable, [b) These "words" of this instrument have been used in practice by the merchants and underwriters of this country, till they have, at length, formed a material clause in the policy ; and the effect of them on the parties to the con- tract, is fully upheld by the Courts of law. In the practice and law of marine insurance, the assured makes no assurance to the underwriter, that at the time of making the policy, the ship or goods are safe, or even in existence at that moment. This might appear at first sight too hazardous for the underwriters ; but it must be borne in mind the value of the amount of the premiums, of the r «i 1 "I S^^^^ number of the insurances *they underwrite, not one of which L J premiums, one may venture to say, out of a hundred, is paid under such circumstances, that the assured are by law enabled to recover them back from the underwriters. If the loss has happened at the time of the execution of the policy, to the knowledge of the assured : or if the underwriter knows at the time he sub- scribes the policy of the safe arrival of the vessel, it is clear that, in both these (e) 4 Camp. 66. (a) Roccus, No. 175 ; 5 Burr. 2802. (ft) MoUoy, b. 2, c. 7, s. 5. See the case of Blackhurst v. Cockrell, Trin. T. 29 Geo. 3, 3 T. R. 360. LOST OR NOT LOST. 7 cases, the policy would be void on the ground o( fraud. There is a recent decision in the Court of King's Bench, in the case of Mead v. Davison, (a) in which the question of law arose, how far the circumstance of both parties to the contract being acquainted with the loss at the time of executing the policy, had an effect upon tlie contract ; and the Court held that there was nothing illegal in an underwriter, who had received the consideration for entering into the contract, executing it afterwards with a full knowledge to both himself and the assured, that the loss had actually happened. Lord Denman, C. J., in delivering the judgment, says : " The case of Earl of March v. Pigof, (b) is a direct authority in favour of the right to recover, if the loss had been known to neither party at the time of executing the policy. According to that case, and indeed on the plainest general principles, if the loss had been known to the assured only, the policy would have been void. But no case has determined that an underwriter, who chooses to execute a policy with full knowledge that the loss has actually happened, may not be bound by it. His conduct might, indeed, appear extraordinary, if it were not clear that he had a good legal con- sideration for entering into the contract, viz : — the payment of the premium which may be regarded as a price actually given, and received for the under- writer's indemnity against the contingency which has happened. The assured has bought and paid for the underwriter's promise to indemnify. If the ship had arrived safe, the underwriter would have kept the whole premium ; though *she has perished, he cannot be relieved from his agreement, r- ^.^ -i Equity would have compelled him to execute the formal policy : ■- -^ in voluntarily executing it, he has only performed a manifest duty, and cannot now retract the obligation." A very recent case (argued in the Court of Exchequer, H. Vacation, 1843,) of Sutherland v. Pratt, (a) may be conveniently mentioned in this place as very applicable to the subject. The facts will be sufficiently gathered for our purpose, from part of the judgment of the Court delivered on a subsequent day. Parke, B. — " In this case the plaintiff declares in the usual form, that he caused to be made a policy of assurance, purporting thereby 'that Boggs, Taylor and Co., as well in their own name, as for all persons to whom the same did, mi^Jd, or should appertain, made assurance, and caused themselves and them to be assured with the General Maritime Assurance Company, lost or not lost, from Bombay to London,'" upon any kind of goods and merchan- dise, (fee, " beginning the adventure upon them from the loading thereof on board the ship, until her arrival and landing of the goods." The insurance was declared to be on 360 bales of cotton. The declaration then stated the admission in the policy, that the premiums, &c., mutual promises, &;c. The declaration then avers, that the goods were loaded at Bombay, and then (which is not in the usual form,) that the plaintiff was '•'-during the voyage*^ inter- ested in the goods, in the policy mentioned, and so loaded, to a large amount to wit : the amount insured, and that the said assurance was made for his use and on his account. The ship is then stated to have been damaged by perils of the sea, and the goods thereby damaged, and rendered of no use to the plaintiff, 6ic. To this declaration the eighth plea alleged (which is the only- plea we shall refer to at present) "that although the plaintiff acquired an interest in the goods, after the commencement of the voyage, to the amount insured, yet the goods were damaged, *and diminished in use and r *i o -i vahie before the plaintiff acquired or had any interest therein, and L J not after."" To this plea there was a general demurrer, which raises the only (a) 3 A. & E. 303. {b) 5 Burr. 2802. (a) 11 M. &W. 296, 8 AT AND FROM question on the merits of the case, the others being mere matters of form. We are of opinion that the eighth plea contains no answer to the declaration. The plea admits expressly that the plaintiff had during the voyage an interest in the goods on board, to the amount insured therein ; and it admits impliedly (for it does not deny that allegation,) that the insurance was made for the use and benetit and on the account of the plaintiff, against any loss in respect of that interest, by any of the perils insured against. This being admitted, the simple question is, whether it is any answer to an action on a policy on goods '•'■lost or not lost,^' that the interest in them was not acquired until after the loss. AVe are of opinion that it is not. Such a policy is clearly a contract of indemnity against all past as well as :xllfuticre losses, sustained by the assured in respect to the interest insured. It operates in just the same way as if the plaintiff having purchased goods at sea— the defendants for a premium, had agreed that if the goods had at the time of the purchase sustained any damage by perils of the sea, they would make it good. The plea therefore is bad in substance. SECTION III. "at and from These words "at and from ," in the policy, are intended to represent the name of the place at which the ship and the goods which are laden upon her sets out on her voyage, to which she is bound: as, for instance, "at and from Bombay to London.'' And this, according to the statement of the late Mr. Justice Park, in his valuable treatise, (a) "has always been held to be necessary in the policy, at least for upwards of two centuries, and must be so, r *AA 1 °" account of the *evident uncertainty which would follow from a L J contrary practice, as the assured would never know what the risk was which he had undertaken to insure." Molloy has laid down this doctrine that, "if a ship be insured from London to , a blank being left in the policy, by the lader of the goods, to prevent a surprise by an enemy, and if, in her voyage, she happen to be cast away — though there be private instructions for her port — yet the assured must sit down with his loss, by reason of the uncertainty." He cites the case of Monsieur Gourdan, governor of Calais, which was decided, by the commis- sioners of assurance at Rouen^ against the assured : because, although the bills of lading truly declared the quantity and quality of the goods, the port of the ship's discharge was left blank, on account of the tvar which was then exist- ing, (a) Such, also, is now the law and usage of merchants. (6) (a) Parkins. 31. (a) Molloy, b. 2, c. 7, s. 14. (b) Park, 31. UPON ANY KIND OF GOODS AND MERCHANDISES. SECTION IV. "upon any kind OF GOODS AND MERCHANDISES." The above words will lead us into tlie inquiry as to what description of "goods and merchandises" may form tlie subject of marine insurances when laden on ships. Ma^ens, (c) in his enumeration, inchides i\\e freight or lure of ships under these words. Tliis, however, as well as others which we shall see are capable of being the subject-matter of the insurance, can scarcely be said to come under the terms "goods and merchandises," unless "goods" are intended to include all descriptions of "cliattels personal;" and it is usual to specify some kinds of the property to be insured by their proper names, for in many instances the risk^ and, of course^ the premium, would be greater. Horses, and other live and valuable animals, which would probably come under the denomination of "goods" in the policy, are, however, generally declared to be such kind of goods somewhere in the policy. *We will now ^ ^. ^ -, commence stating some of the particular kinds of things or pro- L J perty which are not by law, or rather by the use of merchants, considered to come under the general term of "goods," and not to be included by them. Thus bottomry and respondentia, which arc peculiar kinds of property, may be the subject of marine insurance, but in the policy it must be particularly stated to be respondentia interest; for it has very long been decided by a case of Glover v. Black, (a) that, on a general policy "on goods," the assured cannot recover money lent on bottomry.''^ The action was upon a policy of insurance "on goods and merchandises" loaden, or to be loaden, aboard the Denham, Tf\ Tryon, commander, at and from Bengal to any parts or places in the East Indies, until her safe arrival in London. The evidence was, that, before the signing of the policy, the plaintiff had lent Captain Tryon, upon the goods then loaden, or to be loaden, on board the said ship, on account of the said Captain Tryon. the sum of £764, at respondentia, for which a bond was executed in the usual form; that the ship, at the time of the loss, had goods and merchandises on board, the property of Captain Tryon, of greater value than all the money he had borrowed ; that the ship was afterwards burnt, and all the goods and merchandise were totally consumed and lost. Upon these facts the question was, whether the plaintiff could recover .^ This case was argued at the Bar ; the Court took time to consider it, and were unani- mous in their determination. Lord Mansfield. — "I inclined at the trial, and since upon the argument, to support this insurance, being convinced that it is fair, and that the doubt has arisen by a slip, in omitting to specify (as it was intended to have been done) that this was a respondentia interest. The ground of supporting this insurance, if it could have been supported, was a clause in the 19 Geo. 2, c. 37, s. 5, which, as to the purpose of insurance, considers the borrower as having a right to insure only for the surplus value, over and above the money he has bor- rowed at respondentia. Yet we are all satisfied that this act *of r- ^.,g -, Parliament never meant or intended to make any alteration in the L -^ manner of insurances : its view was, to prevent gaming or wagering policies, where the assurer had no interest at all ; and if the lender of money at respon- dentia were to be at liberty to insure for more than his own interest, it would be a gaining policy : for it is obvious that, if he could insure all the goods and his respondentia interest besides, this would amount to an insurance more (c) Magens, 4. (a) 3 Burr. 1394; 1 Black. 405. 10 UPON ANY KIND OF GOODS AND MERCHANDISES. than his whole interest. In describing respondentia interest, the act gives the lender alone a right to make insurance on the money lent : so that the act left it on the practice. I have looked into the practice, and I find that bottomry and respondentia are a particular species of insurance in themselves, and have taken a particular denomination. I cannot find even a dictum in any writer, foreign or domestic, that the respondentia creditor may insure upon the goods, as goods. I find, too, by talking with intelligent persons, very conversant in the knowledge and practice of insurances, that they always do mention respon- dentia interest when they mean to insure it. It might be gready inconvenient to introduce a practice contrary to general usage, and there may be some open- ing to fraud, if it be not specified. The ground of our resolution is, ' That it is now established, as the law and practice of merchants, that respondentia and bottomry must be specified and mentioned in the policy of insurance.' " A bottomry bond usually expresses on the face of it, that the lender takes upon himself the perils of the voyage: but it is not necessary that this should be express and in terms; it is sufiTicient if the fact can be collected from the lano-uao-e of the instrument, considered in all its parts, and therefore a declaration in an action of insurance declared on a bottomry bond, is supported by an instrument of such description. This was held in the case of Simonds v. Hodgson (in error from the Common Pleas.) («) Lord Tenterden, C. J., P ^^^ -, in delivering the judgment, said, "This case came before us by L -' *writ of error from the Court of Common Pleas, wherein upon a demurrer to the declaration, judgment was given for the defendant. The de- claration was upon a policy of insurance in the common form, declared to be on 'bottomry,' free from average, and without benefit of salvage. The declara- tion sets forth the instrument of bottomry, Avith proper averments to connect that with the policy. Upon the argument before us it was insisted in behalf of the plaintiffs, that the instrument set out in the declaration, was an instru- ment of bottomry, in the proper and legal sense of that word, in which the lender takes upon himself ' the risk of the voyage. ' On this point we are all satisfied that the judgment ought to be for the plaintiffs." But it does not, therefore, follow that "special interests" in "goods" may not be recovered under the common form of an insurance upon "goods :" and Lord Mansfield himself, at the end of his judgment in Glover v. Black, expressly reserves both himself and the Court from having laid down such a general rule, (a) We have seen diat according to 28 Geo. 3, c. 56, not only the persons who are interested in the assurance in "goods," but likewise the consignor or consignee, may declare on such a policy on goods, without stating their character in the pohcy." And see the case of JVolff \. Horncastle,{b) to which we have already referred at some length, (r) And generally it is necessary to state accurately ^'-the subject-matter" of the insurance, but it is not essential to state the '■'■particular interest" which the assured has in it. Thus, a person who has several interests in a cargo, viz : as partner in seven- sixteenth, as consignee of the whole; and as having a /ten as factor on the whole for advances: may protect them all by one insurance, without stating in the policy the number or nature of his interests, (d) In tlie recent case of Crowley v. Cohen, (e) which was an action on a policy r *isa n "f insurance on "goods" made by carriers; *it was objected for L J the defendants that the policy which pursued the ordinary form. (a) 3 B. & A<1. 50. See also the full report of the judgment, p. 56, and see the form of the bond at p. 51. («) 3 IJurr. 1401. (h) 1 B. «fe P. 316. (r) Ante, p. 4. (d) Carruthers v. Sheddon, 6 Taunt. 14. (c) 3 B. & Ad. 478. UPON ANY KIND OF GOODS AND MERCHANDISES. 11 did not cover the interest of the plaintiffs, since it purported to protect goods against the usual risks to which the owners of goods are liable ; whereas, the loss alleged was one arising out of the ■plaintiffs'' liability as carriers, to risks to which carriers are liable. Lord Tenterden. — " It is objected that this policy is not framed so as to cover 'fAe interest'' in respect of which the plaintiffs claim. But I agree in the proposition laid down in the argument on their side, that although the sub- ject-matter of the insurance must be j^roperly described, the nature of the interest may in general be left at large. Here the subject-matter is very suffi- ciently described, and the policy shows that the sum to be received in case of loss, was to be (or further consideration, 'as interest might appear to be here- after.^ The instrument is not artificially framed — it would have been better if it had expressly sliown that the object was to indemnify the plaintiffs as car- riers, still I think it is sufficient. («) And in the case of Lecras v. Hughes, (b) Lord Mansfield says, 'insurance is a contract of indemnity,^ some interest is necessary, but not any '•particular form of interest;^ it does not depend upon a vested formal interest." Although the decision in Glover v. Black has been always upheld, yet in a subsequent case before Lord Mansfield, of Gregory v. Christie, (c) it was ruled that money expended by the captain for the use of the ship, and for which respondentia interest was charged, might be recovered under an insu- rance on "goods, specie, and effects," provided the usage of the trade, which in matters of insurance is always of great weight, sanctions it. This case was an action upon a policy of insurance on "goods, specie, and effects" of the plaintiff, who was also the captain, on board the ship : the plaintiff claimed under that insurance, money expended by him in the course of the voyage for the use of the ship, and for Avhich *he charged respondentia inter- p ^,q -, est. Lord Mansfield said as to the question, whether the words L J "goods, specie, and effects," extended to this interest, I should think not, if we were to consider only the words made use of. But here is an express usage which must govern our decision. A great many captains in the East India service swear, that this kind of interest is always insured in this kind of way. I observe the person insured here is the captain." Secondly : it has been held that the master's clothes, or the ship's provisions, do not come under the term "goods;" nor "goods" lashed on deck, unless sanctioned by usage. In the case of Ross v. Thwaite, Sit. after Hil. 16 Geo. 3, at Guildhall, (o) the action was brought upon a policy of insurance of " the captain'' s goods'''' for six months certain. The loss proved was chiefly for ^^ goods lashed on deck,''^ and the " captain's clothes" and the " ship's provisions." It was proved by an underwriter and a broker, that none of those things are within a general policy " on goods ;" for the risk was greater, as to goods lashed on deck, than other goods : and a policy means only such "goods" as are merchantable, and a part of the cargo. They also swore, that when goods like the present are meant to be insured, they are always insured by name, and the premiian is greater. Lord Mansfield said, he thought it consistent with reason, and under- stood the usage ivas so : therefore he advised the plaintiff to withdraw a juror, the premium having been paid into Court, to which he consented. And in another case Mr. J. Chambrc and a special jury, decided that " goods stowed on deck,'''' were not within a general policy on "goods." Backhouse V. Ripley, Sit. after Mich. 1802, in C. P. {b) (a) See Palmer v. Pratt, 2 Bing. 185. (Jj) Park Ins. 569. (c) B. R. Trin. 24 Geo. 3. Parkins. 10. (a) Parkins. 23. \b) Park Ins. 24. 12 UPON ANY KIND OF GOODS AND MERCHANDISES. But where there was an insurance on '•'■forty carboys of vitriol,"" it was held to be sufficient, that they were carefully "■stowed on deck,'' that being a usucd place for that commodity, without informing theiinderwriterofit; and, -. although *it was usual sometimes to bed them in sand in the hold. [ *20 J jj^ Costa V. Edmonds, (a) The Court afterward confirmed the decision at Nisi Prius. {b) And in the recent case of Gould v. Oliver, (c) it has been decided that the 07vner of a cargo of timber ^'^ laden on deck,'' pur- suant to the custom of the particular trade, was entitled to contribution from the ship-owner in the case of a "general average." A subsequent action was brought by the plaintiffs against the ship-owner on the charter-party, in which the plaintiffs had a verdict with general damages. The reader is referred to the full report of this case, when cause was shown in the Common Pleas, against a rule which had been obtained for a new trial ; (d) he will find in this case the subject of the "loading of a deck cargo," and the practice and usage relating thereto, fully discussed by the argument at the Bar, with reference to the evidence given at the trial. As the case was not on a policy of insurance, I must content myself with a few observations, copied from the judgment of Lord C. J. Tindal. He begins by stating, "this was an action of assumpsit on a charter-party, made between the defendant therein described as the owner of the ship, called the ' Christopher,' then lying at London, of the one part, and the plaintiffs therein described as merchants of the other part, whereby it was ao-reed that the ship should sail with all convenient speed to Quebec, or as near thereto as she could safely get, and there load from the factors of the plain- tiff, a full and complete cargo of pine timber deals, &c,, ' not exceeding U'hat she could reasonably stow and carry over and above her tackle,' &c. The declaration assigned three breaches : first, ' that the defendant would not load in and on board the said ship, a full and complete cargo, not exceeding ivhat she could reasonably stow and carry, over and above her tackle, &c., hut on the contrary, ' loaded on board the ship a cargo, much exceeding what the -, said vessel coidd reasonably stow and carry over *and above her [ *2 1 J tackle, &c. The second breacli was for ' carelessly and impro- perly loading par/ 0/ ^/le cargo on deck,' whereby the plaintiffs were prevented from insuring : and tlie third, for not taking proper care of the cargo, whereby it was lost. "One objection to the direction of the Judge is, that he told the jury that if the ' loading the deck cargo increased the danger of navigation it was an improper practice ;' thereby, as it is said, excluding the consideration of usage, and making the increase of danger the absolute test of '■improper stowao-e.' But tlie language of the learned Judge must be viewed with refer- ence to the case before the jury. If 'a particular mode of stoivage' be con- formable to the established usage of trade, it may not be improper, though another 'mode of stoivage' may be more safe." In this case it was proved that the practice of stowing timber upon deck" was very general, but also shown when the cargo was so loaded and a loss occurred, the shipowners in the absence of any stipulation to the contrary, had paid the loss to the shipper : and no instance was given in which the loss had been sustained by the shipper. It was further shown that insurances upon " deck cargo" could not be made unless at a triple premium : and still that it was not unusual to insert a special clause in the charter-party, that tlie ship should have a '■'deck load." Prima facie, "the deck" is an improper place for the cargo, or any part of it. The 'duty of stowing the cargo belongs to the master; and no evidence was given of a i^eneral custom to load "a deck cargo" at the risk of the shipper. So (a) 4 Camp. 142. (*) 2 Chitty, 227. (c) .5 Scott, 44.'3; B. N. C. 134; and seethe case of Milward v. Hibbert, 3 Q. B. 120. {d) 2 Scott's N.K. 241. UPON ANY KIND OF GOODS AND MERCHANDISES. 13 far as the evidence upon this subject went, it showed that wlienever a loss had occurred, it had been made good by the shipowner, and consequently, lie had no right by custom to throw the loss upon the shipper. The learned Judge, therefore, told the jury, that they were not to consider the matter with reference to the custom, but with reference to ihe fact, whether the stowage was actually improper ; that is to say, whether it was such as to increase the perils of the navigation. The great body of the evidence on both sides was directed to the *qiiestion, whether the danger was increased or diminished, by the r- ^^^^ -, stowage on the deck ? the plain tilf's witnesses stating the former, L -' and the defendant's the latter. The question left to the jury was, ivhether the timber stowed upon the deck was properly or improperly stowed? the Judge telling the jury, " that if it increased the danger of the ship, or increased the danger to that part of the cargo, in either case it was an improper stowage, because it tended to the injury of the shipper.'''' It was finally left to the jury in the language of the issue, " was this cargo improperly stowed? The jury found that it was improperly stoived: and we do not think the direction to the jury, under the circumstances of the case, to exclude from their consideration the evidence of the practice, was wrong. For these reasons we are of opinion, that the defendant is not entitled either to enter a verdict for her, or to have a new trial, but we think a venire de novo should be awarded." Thirdly, it has been thought that there was some doubt respecting the recov- ery of money, gold and silver coin, and bullion, after a loss under a policy on "goods and merchandises." This question does not appear to have had sufficient doubt cast upon it to afford any decision in our courts of law, as there is (according to tlie statement of the late Mr. J. Park, in his treatise) no case in the books in which the doubt was ever raised. In the case of Da Costa v. Firth, {a) the subject-matter of the insurance was bullion, and the policy was general on "goods and merchandises," but no objection seems to have been taken at that time. Magens, in his book " On Insurances," states, " that gold and silver coined or uncoined, pearls, and other jewels, may be insured at London, Hamburg, and other places, under the expression in the policy 'of goods and merchandises,^ {b) and as goods declared in the policy 'bullion,' 'coin,' &c., there would be a sufficient notice of the value of the goods to inform the underwriters." The same writer gives a list of the ordinances of *several foreign states in which money shall not be recovered, un- r- ^^r. -i less it be expressed in the policy " that it is money ivhich is to be^ -' insured.''^ (a) In France, these articles may be insured under the general terms "goods" and "merchandise," provided the transport of them be not prohibited, (b) Eoccus, in his treatise, concurs in the opinion that these things may be insured under the general expression of the policy, where they forin part of the cargo, and he draws a distinction between them and money, jeivels, and such things as are on the persons or designed for the ivear of passengers on board : the former, he says, is clearly liable to contribute to a general average, and the latter not. He says. — " Assecurans merces intalem navem immissas intelligitur assecurare pecuniam, aurum, argentum, gemmas mar- garitas et annulos in dicta navi existentes, quae omnia appellatione mercium in navem immissarum, comprehendentur, licet expressa non fuissent Santerna declarat, quod si pecuniae, margaritae et annuli erant destinati ad vendendum vel mercandum alias merces, tunc appellatione mercium veniunt, et in assecuratione comprehenduntur et loco mercium habentur : vocat dictas res merces, cum occasione earum habeat locum contributio, sicut aliarum rerura, ne in istis asse- (a) 4 Burr. 1966, (b) 1 Magens, 10. (a) 2 Magens, 71, 89, 131, 187. {b) Emerigon, torn. 1, p. 297. 14 UPON ANY KIND OF GOODS AND MERCHANDISES. curationibus mercatorum potius apices juris, quam Veritas observari videantur : et tandem quia large comprehenduntur omnes res, quae sunt destinatse ad nego- tiandum, et facit etiam, quod confiscatio mercium navis extenditur etiam ad pecuniam numeratam. " (c) Fourthly, the wages of mariners are not, by the laws of this country, allowed to form the subject-matter of an insurance ; and this rule is agreeable, like- wise, to the laws of all foreign trading countries, (rf) This rule of law, though apparently severe on the mariner, is nevertheless, it must be admitted, based on good policy, as one of the greatest securities for the safe arrival of the vessel by the exertions of the sailors, which would, as a matter of course, be much r *9± 1 diminished if they could protect themselves by such means. This L ■^'* J *rule extends to the length of establishing another, viz : — " That no seaman can avail himself of the insurance of the ship or cargo." In the case of the Lady Durham., (a) Sir /. Nicholl says, "It is thrown into the summary petition that the owner had made insurances on the homeward cargo ; but ' that ivill not give the seaman a legal right to wages : it may induce the owner to act with liberality, but it cannot induce me to violate a principle and rule of laiv, whatever may be the hardship on the seaman.'' The policy of the law requires that a seaman shall not insure his ivages; he must take the risk of the ship, and stand by her at every hazard : he has a lien on the ship to the last plank, and on the freight ivhich is appurtenant to the ship ; and J think that, in principle, the king^s advocate's argument is not remote, and that an insurance on the ship does not benefit the seaman ; for if the seaman could look to the insurance of the ship as a security for his tvages, it woidd be a sicbstitutionfor his own private insurance, and looidd defeat the policy of the law. A seaman knows whether the ship is insured or not, and if such an insurance coidd enure to his advantage, it might make him indifferent or moderate, if not extinguish all exertion on his part.'''' This rule of law does not effect the master of the ship ; and it has been holden that an insurance on the commission, privileges, &c., of the captain of a ship in the African trade was valid, when that traffic ivas legal, (b) And in this respect the English law corresponds with the French, in allow- ing the captain of a ship to insure goods ivhich he has on board, or his share in the ship, if he be a part-owner, (c) But a master of a ship has not a lien on the freight for his tvages, or for his disbursements on account of the ship during the voyage; [d) and therefore a policy of insurance "on money lent to a captain of a ship, payable out of the freight, is illegal and void on the face of it." {e) P ^f,_ -, *Fifthly, freight, or the proft derivable from the carriage of L J goods, or hire of a vessel under a charter-party, constitutes a good insurable interest. "It would, indeed, be extraordinary," says Mr. J. Chambre, in delivering his opinion in the case of Lucena v. Craufurd, (a) ^^ if freight could not be made the sitbjcct of protection by an instrument which hud its origin from commerce, and ivas introduced for the very pur- pose of giving security to mercantile transactions. It is a solid, szibstanfial interest, ascertained by contract, and arising from labor and capital em- ployed for the purpose of commerce. But even in this case the existence of a subject out of which freight may arise, or be earned, is yiccessary, as is settled by the case of "I'onge v. Watts, (b) lately cited and approved of by (c) Roccus, Not. 17. () King v. (Jlover, 2 New Rep. (c) Emcrig. torn. 1, p. 236. (r/) Smith v. Plummcr, 1 B. & A. 575. (e) Wilson v. K. Exchange Co. 2 Camp. 626. (a) 3 B. & P. 102. {!)) 2 Strange, 125. UPON ANY KIND OF GOODS AND MERCHANDISES. 15 Lord Kenyon^ in the case of T7iompson and Taylor/^ (c) When freiglit is intended to be insured it should be mentioned, eo nomine, in the policy, {d) The owners have an insurable interest in the profits which they expect to make in carrying their own goods in their own sliip ; decided in the cases of Flint V. Flonyng, (e) and Devaux v. T Anson, {/) which important cases will be more fully referred to in a subsequent part of this treatise. Sixthly, carriers have likewise a special property in the goods entrusted to their care, and they may protect ^^ their interest'''' in them by an insurance; and although it is not absolutely necessary to state particidarly in tlie policy that it is their ^^ special interest as carriers,'''' still it is more correct to do so, as said by liord Tenterden, m the case of Croivley v. Cohen, [g) which was mentioned before. (A) There are many more instances in which the assured may protect his "inter- est" in different mercantile concerns, which we shall have presently to men- tion ; it, however, is my object at present, ^Seventhly, to refer to a class of cases which have been by the p ., _ -, statute law of the country declared to be absolutely null and void. L J This class are what are called wager-policies, or, in other terms, policies on ''^interest or no interest." Mr. J. Park (a) lays it down, that "the nature of the contract of insurance in its original state was, that a specific voyage should be performed, free from the perils of the seas ;" and, in case of accidents during such voyage, the assurer, on consideration of the premium he received, was to bear the mer- chant harmless. It followed, from dience, that the contract related to the safety of the voyage, thus particularly described in respect either of ship or cargo, and that the assured could not recover beyond the amount of his real loss. In process of time, however, variations were made, by express agreement, from the first kind of policy ; and in cases where the trader did not think it proper to disclose the nature of his interest, the assurer dispensed with the assured having any interest either in the ship or cargo. In this kind of policy, valued yVee from average and interest or no interest," it is manifest that the performance of the voyage or adventure in a reasonable time and manner, and not the bare existence of the ship or cargo, is the object of the insurance. Such an object as that, with a reference to the real nature of insurance, "that it is a contract of indemnity" from a real and manifest, not from a supposed or ideal loss, must have been originally bad. Indeed it had been declared from the Bench, prior to the discussion of Jissievedo v. Cambridge, {b) in the reign of Queen Anne, that such insurances were formerly held to be bad ; for it is taken for granted in 1692 to be settled law that, in former times, if one had no interest, though the policy ran "interest or no interest," the insurance was void. After argument (but a second argument was ordered, but does not, from any reporter, appear ever to have been made,) it was held "that the defendant was entitled to judgment." Upon this case Lord Mans- r- jj,.,_ -, field, *in the case of Goss v. Withers, has observed (a) "that the L -' man-of-war which retook the ship, brought her into the port of London, and restored her to the owner upon reasonable redemption : (that appears from the special verdict j) and then the owner, not abandoning the ship, could only have (c) 6 T. R. 478. \d) 2 New Rep. 315; 11 Vcs. 628; and see Baillie v. Moudigliani, B. R. Hill, 25 Geo. 3; Park Ins. 116. (c) 1 B. & Ad. 45. (/) 7 Scott, 507; 5 Bing. N. C. 519. Ig) 3 B. & Ad. 478. (A) Ante, p. 17. (a) Parkins, vol. 2, p. 551. (6) 10 Mod. 77. (a) 2 Burr. 695. Vol. VIL— C 16 UPON ANY KIND OF GOODS AND MERCHANDISES. come upon the insurers for the redemption ; and no question could have arisen about the change of property. But the poUcy being 'interest' or 'no interest,' without benefit of salvage, the question arose upon the terms and meaning of the tvager. That case was not determined." And his Lordship, relating the circumstances of the principal case of Goss v. Withers, says, [b) "whatever rule ought to be followed in favour of the owner against the recaptor or vendee, it can in no way affect the case of an insurance between the assurer and the assured. The ship is lost by capture ; though she be never condemned at all, nor carried into any port or fleet of the enemy, the assurer must pay the value. If, after condemnation, the owner recovers or retakes her, the assurer can be in no other condition than if she had been recovered or retaken before condem- nation. The reason is plain, from the nature of the contract. The assurer runs the risk of the assured, and undertakes to indemnify : he must, therefore, bear the loss actually sustained, and can be liable to no more. So that if, after condemnation, the owner recovers the ship in her complete condition, but has paid salvage, or been at any expense in getting her back, the assurer must bear the loss actziaUy sustained. This point would not have been started in poli- cies upon real interest, because it never could have varied the case, but wager policies gave rise to it: it was necessary to set up a total loss, as between third persons, for the purpose of their wager, though, in fact, the ship was safe, and restored to the owner. In the case of Spencer v. Franco, (c) the r »9». 1 South Sea ship. Prince Frederick, had returned safe to the *port L J of London with her cargo : the wagerers contended that she was "totally lost at La Vera Cruz,^^ from this notion of a change of property, but failed. Depaiba v. Ludloiv {a) was also a wager policy ; and the property- could not be changed, because there was then no war, nor even a declaration of war : but the Court held that, as the ship had been once taken in fact, the event had happened, though she was afterwards recovered." So in the case of Pond v. King, {b) which was also a wager policy. But in the case of Fitzgerald v. Pole, (c) the majority of the Judges and the House of Lords, in 1754, held "that, though the ship might be deemed for a time 'as lost,' yet, as she was afterwards recovered, the event of a total loss had not finally hap- pened, according to the construction of the wager." In the case of Depaiba v. Ludloiv, before mentioned, the counsel there observed, and was not contradicted by the Court, that insurances upon "inter- est or no interest" were introduced since the Revolution : and from the date of the cases of wager policies mentioned by Lord Mansfield, in Goss v. Withers, this appears to be so ; and if the law of England (as Mr. J. Park observes, (d)) previous to the Revolution, was more agreeable to the true intention of the contract between the assurers and assured, than it afterwards came to be — it was, according to Magens, (c) consonant to the laws on this subject of most of the commercial states in Europe, viz : of Middlcburg, Genoa, Konishurg, Rotterdam, and Stockholm, by the regulations of which countries, all insu- rances upon wagers, or "as interest or no interest," are declared absolutely void, and of no effect. In England, after the bad practice of resorting to these wagering contracts had come into use, the Courts of Justice, particularly the Equity, began very r *oQ "1 ^oon to treat tliem in *a very imfavourable manner. In the case of L -J Goddart v. Garret, (a) the defendant had lent money on a bot- (//) 2 Burr. 694, 695. (c) Before Lord Ilardwickc, at Guild. 1735. Lex Merc. red. 4th. 316. («) Comyn's R. 360. (b) 1 Wils. 191. (c) 5 Bro. Par. Cas. 131, 214. (rf) Park. Ins. 552. (e) 2 Magens, 70, 65, 88, 189, 257. (a) 2 Vcrn. 269, Trin. Term, 1692. UPON ANY KIND OK GOODS AND MERCHANDISES. 17 tomry bond, but had no interest in the ship or cargo — the money lent was 300/., and lie insured 450/. on the ship; the plaintiff's bill was to have the policy delivered «p : because the defendant was not interested in the ship or cargo. Per Curiam. — Take it that the law is settled, that if a man has no interest and insures, the insurance is void, though it be expressed in the policy, "inter- ested or not interested." The reason that the law goes upon is, that insurances were made for the benefit of trade, and not that persons unconcerned therein, and who were not interested in the ship, should profit thereby ; and, where one ivho ivould have the benefit of the insurance^ he must renounce all inter- est in the ship. And the reason why the law allows that a man having some interest in the ship or cargo may insure more, or five times as much, is, that a merchant cannot tell how much or how little his factor may have in readiness to lade on board his ship. — Per Curiam. — Decree the policy to be delivered up to be cancelled. In another case of Le Pypre v. Farr., {b) which was a policy of insurance on goods by agreement, valued at 600/., and the assured not to be obliged to prove any interest j the Lord Chancellor ordered the defendant to discover what goods he had on board; for, although the defendant offered to renounce all interest to the assurers, yet it must be referred to the master, to examine the value of the goods saved, and to deduct it out of the value or sum of 600/., at which the goods were valued by the agreement. And by this decision, the Court held that the assured was only to recover an indemnity, which is the true intent and tneaning of the contract. But, notwithstanding the proper and legitimate view the Courts of Justice took of these descriptions of policies — the practice still continued of not con- fining the insurance to real *risks, and in the departing entirely ^ ^„„ -, from the spirit of the contract of insurance, which instrument, for L -' the protection of trade, had _y?rs^ been introduced, bad and dishonest men began to endeavour to make themselves fortunes at once, by means of perverting the design and utility of this contract, which ought by law to be confined to the real and serious risks, which were to be endured by merchants in fair deal- ing in trade, and where the assurer for a sufficient considenttion, the premium, took upon him the assurecVs risk, the practice which began to spring up after the Revolution of insuring ideal risks, grew to such a ptch, that the Legislature at length considered it fit to interpose, and by an act of the Parliament to stay this dangerous mode of trade, and to give it an effectual check, and by strong restrictive rules, to settle what "interest" a merchant should by the statute lata be required to have, in order to be allowed to recover what he was alone enti- tled to, a fair indemnify for his loss, from die persons who had undertaken upon themselves his risk. Accordingly an act of 19 Geo. 2, c. 37, was passed, intituled "an act to regulate insurances on ships belonging to subjects of Great Britain, and on mer- chandises or effects laden thereon." "Whereas it hath been found by experience, that the making assurances 'interest or no interest,' or without further proof of interest than the policy, hath been productive of many pernicious practices, whereby great number of ships, with their cargoes, have either been fraudulently lost or destroyed, or taken by the enemy in time of war ; and such assurances have encouraged the exportation of wool, and the carrying on many other prohibited and clandestine trades, which by means of such assurances have been concealed, and the per- sons concerned secure from loss, as well to the diminution of the public revenue, (6) 2 Vern. 716. 18 UPON ANY KIND OF GOODS AND MERCHANDISES. as to the great detriment of traders ; and by introducing a mischievous kind of gaming or wagering, under the pretence of assuring the risk on shipping and fair trade, the institution and laudable design of making assurances hath been r *Qi -.perverted; and which was intended for the encouragement *of trade L J and navigation, has in many instances been hurtful of, and destruc- tive to the same. " For remedy whereof be it enacted, that no assurance or assurances shall be made by any person or persons, bodies corporate, or politic, on any sliip or ships belonging to his Majesty, or any of his subjects, or on any 'goods, mer- chandises, or effects,' laden or to be laden on board of any such ship or ships, ^interest or no interest,'' or without further proof of interest than the policy, or by Avay of gaming or wagering, or without benefit of salvage to the assurer, and that every such insurance shall be null and void. («) "That assurance on private ships of war, fitted out by any of his Majesty's subjects, solely to cruise against his Majesty's enemies, may be made by the owners thereof, interest or no interest, free of average, and without benefit of salvage to the assurer : anything herein contained to the contrary thereof in anywise notwithstanding. (6) "That any merchandises or effects from any ports or places in Europe or America, in the possession of Spain or Portugal may be assured in such way and manner as if this act had not been made, (c) "That all and every sum and sums of money to be lent on bottomry or at respondentia, upon any ship or ships belonging to any of his Majesty's subjects, bound to or from the East Indies, shall be lent only on the ship, or on the merchandises, or effects laden, or to be laden on board of such ship, and shall be so expressed in the condition of the bond ; and the benefit of salvage shall be allowed to the lender, his agents or assigns, who alone shall have a right to make assurance on the money so lent : and no borrower of money on bot- tomry or respondentia, as aforesaid, shall recover more on any assurance than the value of the ship or of the merchandises or effects laden on board such ship, exchmve of the money so borroived ; and in case it shall appear that the value of his share of the ship, or in the merchandises or effects laden r *qo ~\ on boar^, doth not amount to the fidl stem or *sums he had bor- L J rotved as aforesaid, such borrower shall be responsible to so much of the money borrowed as he hath not laid out on the ship or merchandise laden thereon, with lawfuiinterest for the same, together with the assurance and all other charges thereon, in the proportion the money not laid out shall bear to the whole money lent, notwi'hstanding the ship and merchandise be totally lost." (a) Upon the last section it is observable that no7ze but the lender shall have a right to make insurance ok the money lent. It is also to be observed, that this regulation of insurance on bottomry or respondentia, extends only to East India ships : and, therefore, an insurance of a respondentia interest upon any other ship, may be made in the same manner as they used to be before this act. It has been decided upon this clause of the act, tliat it never meant, or in- tended to make, any alteration in the manner of insurances ; and it was declared by the Court, in Glover v. Black, before referred to, [b) that the established law and usage of merchants was, that respondentia and bottomry must be speci- fied I)y name in the policy of insurance. By the first section of the act, all policies of insurance made contrary to it are absolutely void, and of no effect. (a) Sect. 1. (6) Sect. 2. (c) Sect. 3. (a) Sec. 5. lb) Ante, p. 15. UPON ANY KIND OF G00D3 AND MERCHANDISES. 19 I proceed now to consider, Jir>it, the cases which have, by the decisions of the Courts upon this act, been hold not to fall within the description. The 19 Geo. 2, c. 37, does not extend to insurances on foreign property^ for in fact they do not come within the tvorcls of the statute. This point has also been set at rest by several decisions in the courts of law, 7'helluson v. Fletcher ; (r) and it was much discussed in the case of Craufurdv. Hunter, (il) In this case one question was, the insurance being in Butch prize ships, whether a count in the declaration averring that the plaintiffs, as commissioners for the disposal of Dutch ships and effects, made the ^insurance, r- ^ -, and that the said ships, or any of them, were not belonging to ^ J his Majesty, or any of his sid)jects, was good. The point was argued on demurrer. Lord Kenyon. — "This question depends on the construction of the statute 19 Geo. 2, c. 37 ; for, notwithstanding the argument, I think, at common laiv, a person might insure without having any interest ; but the preamble and the enacting clause remove all doubt : for the act recites the mischief and incon- veniences that had arisen from making assurances ' interest or no interest,' and then it enacts (not declaring) that no such assurance shall be made, except in certain cases, which, for very wise and politic reasons, were excepted. There- fore I am satisfied that this count is good, unless on an insurance prohibited by the statute. But that statute only applies to ships belonging to his Majesty or any of his subjects, and does not extend to foreign ships." In the recent case of Sutherland v. Pratt, (a) the declaration stated, "that the plaintiff caused to be made a policy of insurance, purporting thereby and containing therein that Messrs. Boggs, Taylor Sl Co., as well in their own names as in the name, &c., did make an assurance, and cause themselves to be assured, with the General Marine Insurance Company, 'lost or not lost,' at and from Bombay to London, upon any kind of goods, &;c., &c., and begin- ning the adventure from the loading of said goods on board the said ship, and until the same should be there discharged and safely landed. The insurance was declared to be on 300 bales of cotton. The declaration went on in the ordinary form, and then averred that the said goods Avere, on 1st September, 1841, shipped at Bombay, on the said voyage; that the plaintiff was, during the said voyage, interested in the said goods in the said policy mentioned, and laden on board the said ship, to the amount insured ; that the said insurance was made/or the use and benefit and on the account of the plaintiff as afore- said ; that the said ship afterwards sailed on the said voyage, and being injured by tempestuous weather, ^whereby the said goods were wetted and p ^„ . -, damaged, and rendered of no use or value to the plaintiff. L J The eighth plea, after stating " that though the said ship, with the said goods on board, departed and set sail upon the said voyage from Bombay to London, and although the said goods were damaged and diminished in use and value on the said voyage ; and although, after the commencement and during the course of the said voyage, and after the ship had sailed on the said voyage for divers days, to wit, thirty-five days ; and for divers miles, to wit, 1000 miles, the plaintiff acquired an interest in the said goods, and then, to wit, on the 10th day of September, 1841, became and was interested in the said goods, to wit, to the value and amount in that behalf mentioned ; nevertheless that the said goods were so damaged and diminished in value, as in the declaration mentioned, before the -plaintiff acquired or had any interest therein.'" To this plea the (c) Doug. 315. (6?) 8 T. R. 13, and see Lucena v. Craufurd, 1 Tauiit. 325, referred to at ante p. 7. (a) 11 M. & W. 296. 20 UPON ANY KIND OF GOODS AND MERCHANDISES. plaintiff demurred generally. Martin, the counsel for the plaintiff, in support of the demurrer, said the question of substance which had arisen on the demur rer was, whether it loas legal to enter into such a contract of insurance as is mentioned in the eighth plea.^ This M^as a case of a policy of goods, "lost or not lost," at and from Bombay to London, beginning the adventure from the lading of the goods on board the ship till their arrival and safe discharge in London. The defendants, therefore, expressh/ contract to the plaintiff to be responsible to the plaintiff from the loading of the goods at Bombay, till their arrival and safe discharge at I^ondon. The plaintifl' is admitted by the plea to have become interested in the goods during the voyage, and the defendants have engaged to become responsible to him for any loss they have sustained during the entire course of that voyage. Why are they not to be held to their contract ? At the common knv a contract of insurance was legal, tvifhout any interest in the assured. Craifurd v. Hunter, (a) confirmed by the Court [- *qri -) of Exchequer Chamber in Ireland, in the case of the British \- ^ J ^fissurance ^Company v. Magee. (a) Is there, then, anything in the statute 19 Geo. 2, c. 37, to affect this case .^ That statute enacts, "that no assurance shall be made on any British ship, or any 'goods, merchandises, or effects,' laden on board of any such ship or ships, 'interest or no interest,' or without further proof of interest than the policy, or by way of gaming or wagering, or without benefit of salvage." This is not a case where there is no proof of interest than the policy, nor is it a case of "gaming or wagering." The plaintiff has the interest of a pledgee, and to protect himself against loss, as such makes an assurance : there is nothing illegal in that either at common law or by the statute. He had the greatest possible interest in the arrival of the goods in the condition in which he supposed them to be, when he made the advance on them so as to secure him from loss. Judgment was given for the plaintiff on the demurrer, as we have already seen in Section II. [b) In the above case the defendants pleaded, in the first place, non assumpsit ; upon which issue was joined, and was tried before Lord Abinger, C. B., Sit. after Trin. Term, 1843. At the trial, it appeared that the insurance in ques- tion, (c) had been made by Boggs, Taylor & Co., who were the consignees of tlie goods in question, for the security of the plaintiff, to whom they had pledged the bill of lading, which was indorsed generally to bearer, as a security for certain bills of exchange accepted by the plaintiff for the accom- modation of Boggs, Taylor & Co., and which the plaintiff refused to accept until Boggs, Taylor & Co. had made the insurance in question, and deposited the policy with liim. It was contended for the defendants, that this was not sufficient to entitle the plaintiff to sue, in his own name, on the policy. The Lord Chief Baron overruled the objection, and a verdict was given for the plaintiff. r -Qft 1 ^^^ ^^ Term following, a rule for a new trial was moved *for, L J on the ground of misdirection, (a) The counsel for the defend- ants contended that a mere pawnee of a policy of insurance cannot sue in his own name. Parke, B. — "Or rather whether the pawnee of goods assigned to him by the indorsement of the bill of lading can insure them?" The counsel for the defendants contended that, if Boggs, Taylor & Co. intended, in case they paid off the acceptances, to have the right in their own (a) 8 T. R. 13. (a) Cooke & Alcock, 182. (/>) Ante., p. 12. (c) Sec the declaration in the last case, ante, p. 12. («) 12 M. &. W. 16. tIPON ANY KIND OF GOODS AND MERCHANDISES. 21 names to sue, they could not, by depositing with the plaintiff, vest the right to sue in him. Parke, B. — "The question is one of fact — whether the insurance was not made for securing the interest of the plaintiff?" Parke, B. — "If, before any arrangement with the plaintiff, Boggs, Taylor & Co., had insured the goods, and then had agreed for the deposit of the bill of lading and the policy with him, I agree they would have been the persons to sue; but here it was a question for the jury, 'whether the insurance was not made by them as agents, and for the benefit of the plaintiff?' " Lord Minger, C. B. — "The evidence was, he refused to accept till they had made the insurance. In such a case, if the party cannot sue in his own name, how can he have the benefit of the pledge?" Parke, B. — "It seems to turn entirely on a question of fact; and there is very good evidence that the policy was made for the benefit of the plaintiff, to cover his interest in the goods; and it is clear he had an insurable interest." Per Curiam. — Rule refused. But in the case of Poii'ks and others v. Lines (h) it was decided, that where a person has assigned away his interest in a ship or goods, after making a policy of insurance upon them, he cannot sue upon the policy, except as a trustee for the assignee, in a case where the policy is handed over to *him ^ ^„_ -, upon the assignment, or there is an agreement that it shall be kept L J alive for his benefit It has been quite settled that a valued policy is not a wager-policy, though there existed at one time a litde confusion in the minds of some about the two descriptions, which, however, has been cleared away by the lucid explanation of the difference between the two by Lord Mansfield, Lord Kenyan, and others of the Judges. In the important case of Lenns and Another v. Eucker, {a) Lord Mansfield, delivering the resolution of the Court upon the whole case, says, — "The second objection with which this case has been much entangled is taken from this being a valued policy. I am a little at a loss to apply the arguments drawn from thence. It is said 'that a valued is a to a ger policy'' (like 'interest or no interest,') if so, there can be no average loss, and the assured can only recover as for a total, abandoning what is saved, because the value specified is ficti- tious." A valued policy is not to be considered as a wager policy, or like ' interest or no interest;' if it was, it would be void by the act, 19 Geo. 2, c. 37. The onlv effect of the valuation is fixing the amount of the prime cost, just as if the parties admitted it at the trial ; but in every argument, and for every other purpose, it must be taken that the value was fixed in such a manner as tliat the assured only meant to have an indemnity. If it be undervalued, the merchant himself stands assurer of the surplus. If it be much overvalued, it must be done with a bad view : either to gain, contrary to the act of the late king, or with some view to a fraudulent loss. And, therefore, the assured never can be allowed in a Court of Justice to plead tliat he has greaUy overvalued, or that his interest was a trifle only. It is settled ' that, upon valued policies, the merchant need only prove some interest, to take it out of the 19 Geo. 2, because the adverse party has admitted the value, and if more was required, the agreed valuations would signify nothing;' but, *if it should p ^gg -■ come out in proof that a man had insured 2000/., and had interest L -■ to the value of a cable only, there never has been, and I believe there never will be, a determination that, by such an evasion, the act of Parliament may be defeated. There are many conveniences from allowing valued policies, but (6) Ante, p. 8. (a) 2 Burr. 1170. 22 UPON ANY KIND OF GOODS AND MERCHANDISES. where they are used merely as a cover to a wager, they would be considered as an evasion. The eflect of the valuation is only fixing conclusively the prime cost. If it be an open policy, the prime cost must be proved — in a valued policy it is agreed, (a) To argue "tliat there can be no adjustment of an average loss upon a valued policy," is directly contrary to the very terms of the policy itself. It is expressly subject to average, if the loss upon sugars exceed 6 per cent.; if it was not, the consequence would not be that every par- tial loss must thereby become total, but the event, to entitle the assured to recover, would not happen, vnless there was a total loss. Consequently the plaintiffs in this case would not be entided to recover at all ; for there is no colour to say this was a total loss. Besides, the plaintiffs have taken to the goods, and sold them. Eighthly, profits expected to be made are a "good insurable interest." The doctrine laid down by Lord Mansfield in the above case was acted upon by his Lordship in a subsequent case of Grant v. Parkinson, {h) It Avas an action on a policy of insurance on the ship Providence, "at and from Surinam, or whatsoever other ports in the West Indies at which the ship might load, to Quebec.'" At the trial, before Lord Mansfield, at the Sit. after Trin. Term, the principal question on the merits was, whether the plaintiff had an insurable interest. It was an insurance on the profits expected to arise on a cargo of molasses, belonging to the plaintiff, who had a contract with Government to r v^qn 1 supply the ^army with spruce beer. Lord Mansfield thought it L J an insurable interest. But the part of the case which calls for our attention at present was a clause declaring "that, in the case of loss, it was agreed that the profits should be valued at 1000/., without any other voucher than the policy." This, it was insisted, rendered the policy void, within the spirit of the 19 Geo. 2, c. 37. Lord Mansfield, at the trial, inclined to think the contract was a fair one ; but still he could not get over the objection, the instrument being void on the face of it. His Lordship, however, saved the point for the opinion of the Court, a verdict being entered for the plaintiff, sub- ject to that reference. In Michaelmas Term following the matter came on to be heard, when, after /?) 6 M. & W. 224. (tf) See the case of Knox v. Wood, atite p. 48, the transaction amounting in effect to an insurance on a void contract. (b) 4 Burr. 1966, ante p. 22. UPON ANY KIND OF GOODS AND MERCHANDISES. 29 policy — partly a wager-policy, partly an open one ; and it is a valued policr, and fairly so without fraud or misrepresentation. Therefore, the loss having happened, the insured is entitled as for a total loss. Ninthly, we come now to another class of insurances under this head of profits, viz : those which arise upon a joint capture *of tlie army r ^ri n and the navy, before condemnation, to the ofliccrs and crews of the L J ships, who have an insurable interest by virtue of the Prize Act, which usually passes at the commencement of a war. This was held in the case of Lt Crm v. Hughes, (o) It was an action upon a policy of insurance of the ship St. Domingo., "at and from Ornoa to Londoji," upon which a case was reserved for the opinion of the Court. The facts of the case were these : — Captain Luttrell, com- manding five of his Majesty's ships, and Captain Dalrymple, commanding a party of land forces, captured two Spanish register ships, lying under the pro- tection of Fort Omoa: that the ship Sf. Domingo (on which the insurance was made) was one of the prizes, and was coming home, laden with the pro- perty then captured, upon which ship the defendant underwrote 500/. : and the ship was lost bv perils of the sea. The question was, whether, by virtue of the Prize Act of 19 Geo. 3, c. 07, the officers and crews of the ships under Captain Luttrell, had such an insurable interest in the ship St. Domingo as to entide them to recover. J iOrd 3fans/ie!d. — "There are two questions in this cause; 1st, whether the sea officers had an insurable interest.'' This will depend upon the Prize Act and proclamation ; 2nd, whetlier possession would entitle them to insure upon the bare contingency of a future grant from the Crown .^ As to the first, consider the act of Parliament which gives to all the people on board, that is, to the flag officers, commanders, and other officers, to the seamen, marines, on board every ship and vessel of war, the sole property of in all and every ship and vessel, which they shall take during the war after condemnation. Does the act say that the seamen only should take? Does it leave a joint cap- ture by the army and navy undefined.^ Certainly not. Suppose, for instance, a case which I remember to have happened : a Dutch and English fleet com- bined, captured some ships: the English sailors could not take solely; nor could the act mean they should have *nothing. In the case in r- ^-^ -, question, suppose Captain Dalrymple had given no assistance, is L -J there any doubt that Captain Luttrell would have taken the whole .►* The only difference is, that he has not now the merit of a sole captor. The word sol- diers in the proclamation, means soldiers on board the ship. Thus it stands on the act and proclamation. But supposing that doubtful, as far back as from Queen Anne's time down to the present, wherever a capture has been made by a King's ship or a privateer, the Crown has always given a grant of it after condemnation. There is no instance to the contrary. Is then the contingency of the ship's coming safe such an interest as the captor may insure? Insurance is a contract of indemnity, some interest is necessar}^, but not any particular form of interest — it does not depend upon a vested formal interest. The ques- tion is, whether this contingency is such a benefit to the assured as will make it a loss to him if the ship does not arrive? An insurance on die profits of a voyage was holden to be good, {a) An agent of prizes may insure the arrival of a ship which will produce him profit; for though he has not the possession of the property, he has an interest in the ship's coming safe as that he may insure. Here the possession is in the assured, and a certain expectation of (a) B. R. East, 22 Geo. 3 ; Park Ins. 568 ; see also 1 B & P. 324. (a) Grant v. Parkinson, ante, p. 38, 43. 30 UPON ANY KIND OF GOODS AND MERCHANDISES. receiving the property captured from the Crown, which gives him an interest in the arrival. It is not a vested interest, but such an expectation as never was defeated." Judgment for the plaintiff. Lord Eldon, in the case of Lucena v. Craufurd, [b) speaking of the case of Le Cras v. Hughes, says, "If the Omoa case was decided upon the expecta- tion of a grant from the Crown, I never can give my assent to such a doctrine ; that, though founded upon the highest probability, was not interest, and it was equally not interest whatever might have been the chances in favour of the expectation. That which was wholly in the Crown, and which it was in the power of his Majesty to give or withhold, could not belong to the captors, so r *Kq -1 as to create any right in them." I have mentioned *this reported L ' J opinion of Lord Ehlon's, on the decision of that great master of "insurance law," Lord C. J. Mansfield: at the same time I apprehend, that the opinion of a lawyer, even so great as Eldon, is not, upon such a question, to be mentioned after the opinion of Lord Mansfield, and that the decision of that great Judge in that case, is considered by the Courts, "Law," at the pre- sent time (which I shall presently show.) Lord Eldon's adoption and use of the terra "chances," is not fair nor correct. Lord Mansfield calls "the ex- pectation" a "certainty," there had been no instance to the contrary. Was not the certain expectation of the grant from the Crown (supposing the ship to have arrived safe,) greater than the expectation of the profit to arise from the sale of a cargo of molasses, belonging to a man who had a contract with govern- ment, and who, at the time of the insurance, could not have a perfect contract with regard to the sale, and that the government might have, at all hazards, dis- regarded their contract with him ; might not the faith of the executive govern- ment have failed in that case, rather than in a case of such importance to the honour of the Crown, and to the welfare and success of the British navy ? I will now refer to the judgment of Lord C. J. Tindal, whose legal reputation is inferior to neither of the two, upon this opinion of Lord Eldon''s upon Lord Mansfield''s decision. His Lordship, in delivering judgment in the case of Devaux v. Steele, (o) says, " this argument is founded upon the cases of Grant V. Parkinson, [b) Le Cras v. Hughes, and other cases of the same class, which were cited and relied on at the Bar. It is undoubtedly true that in the case of Le Cras v. Hughes, Lord Mansfield expressed a decided opinion, that the "expectations" of future benefit founded on the contingency of a future grant from the Crown, but warranted by universal practice, did amount to an 'insu- rable interest. ' But after the observations of liord Eldon on that case, in giving r *Pi4. 1 judgment in the House *of Lords, in the case of Lucena v. Crau- L -^ furd (in error,) (a) and by Ellenborough in Jtouth v. Thomp- son, (6) the doctrine laid down in Le Cras v. Hughes, if still to be treated as a binding authority, must be considered incapable of being extended, and as confined to cases falling strictly within the same circumstances. The case, however, of Le Cras v. Hughes, did in its circumstances show "an expecta- tion" approaching much nearer to a certain interest than the present. In that case it was stated by Lord Mansfield, "the Crown always makes the grant, and there is no instance to the contrary." We, therefore, observe that the decision of Lord Mansfield is upheld, as far as its circumstances appear, by the Court in the important and fully argued case of Devaux v, Steele ; and, although it must be admitted that the authority of a lawyer like Lord Eldon, will always claim the respect of the profession of the law, and regard from the Judges, his (6) 2 N. R. 323. («) 8 Scott, 637; 6 B. N. C. 358. (6) The molasses case, decided by Lord Mansfield. (a) 2 N. R. 321. (6) 11 East, 434. UPON ANY KIND OF GOODS AND MERCHANDISES. 31 observations upon the case in question, do not seem to amount to much weio-ht, particularly when considered in comparison with the opinion of the great Judge, who decided that case with the full approbation of the whole Court. We go on now. after this digression, to pursue this subject farther, and to refer to some of the cases just mentioned, and which called into notice the principles laid down by Lord Mansfield in Grunt v. Parkmson^ and Le Crats V. Hughes. The first case Avhich is to be briefly mentioned, is a case which came on for argument before Lord Kemjon., and the rest of the Court of King's Bench. It was the more modern case of Boehm v. Bell, (c) in which it was held that the captors of ships seized by them as prize, have an insurable interest in them in the voyage home, for the purpose of bringing them to adjudication in the Admiralty : so that if the Court of Admiralty should not adjudge them as prize, and award restitution to the owners, the captors are not entitled to a return of premium. Jjord Kenyan, after argument, "observed that if it were a *Iegal r i;;;-p. -i capture the captors were entitled ; if the capture was improperly •- -I made, they were liable to be called to account in the Court of Admiralty, where tliey might be amerced in damages and costs. They had therefore a right to insure against the decision, that might have loaded them with damages and costs. On this short ground I am of opinion, that the assured had an insura- ble interest, and there could be no return of premium. Mr. J. Grose. — "The whole difficulty has arisen from confounding an indefeasible interest with an insurable. It is not pretended that the assured had the absolute property in the subject of insurance ; neither need they have such property to make the policy legal, it is sufficient if they had an insurable interest : and according to what was said by Lord Mansfield in Le Cras v. Hughes, they certainly had an insu- rable interest. If they had succeeded in the Court of Admiralty, it will be admitted that they had an insurable interest ; and in case of their not succeed- ing, these were events for which they might be made answerable, and against which it was competent for them to insure." Mr. J. Lawrence, "the case turns on this short question, whether or not the assured had an interest which they might insure.? Did they mean to game? or was there not a loss against which they might indemnify themselves by a policy.? I don't mean a certain, but a possible loss. Now it has been shown that this was a case in which the Admiralty might have decreed costs and damages. That is sufficient. It might he asked, in the language of Lord Mansfield in Le Cras v. Hughes, had not the assured such an interest in the ship coming home, as to entitle them to an indemnity.? I think they had, and therefore that the plaintiffs are not entitled to a return of premium." So also the Commissioners appointed by the act of the 35 Geo. 3, c. 80, for the purpose of taking care of and disposing of Dutch ships and effects, detained in or brought into the ports of this kingdom, and who, by their commission are to manage, sell, and dispose of the same to the best advantage, according to the instructions they should from time to time receive from his Majesty and the Privy Council, contended *that they had an insurable interest in r- ^,„ -. Dutch ships and effects, seized at sea by his Majesty's ships of L ^" J war, that they might be brought into the ports of this kingdom, that they might insure in their own names ; {a) and a count in a declaration on such a policy, stating the nature of their trust, and averring that they as such Commissioners, were interested in the ships and goods, and that the insurance was made for their use and benefit, and account as such Commissioners, was upon demurrer (c) 8 T. R. 1.54. (a) See ante, p. 7, 35. Vol. VII.— D 32 UPON ANY KIND OF GOODS AND MERCHANDISES. holden to be good in the King's Bench. The Court considering them in the Hght of trustees, consignees, or agents, in either of which characters, it was conceived they had an insurable interest, Craufurd v. Hunter. (6) The case was three times argued in the Exchequer Chamber, (c) and the judgment of the Court of King's Bench was athrmed by Lord Alvanley, C. J., of Common Pleas, Lord C. B. MacDonald, Heath, Justices ; Hotham, Thompson, and Graham, Barons, against the opinion of Chanihre, J. A writ of error was afterwards brouglit upon this judgment in the House of Lords, and after much argument at the Bar, several questions were referred to the learned Judges, a majority of whom were for affirming the judgment of the Exchequer Chamber. But some doubts having arisen in the House of Lords as to the extent of dam- ages which had been given, particularly by the Lord Chancellor, Erskine, and by Lords Eldon and Ellenborough. A venire facias de nova was awarded in July, 1806, which came on to be tried before Lord Ellenborough, at the Sit. after Mich. 1806. \n the course of the discussion which had taken place, it was pretty generally understood that whatever difference of opinion there might be respecting the interest of the Commissioners, the House of Lords, and all the Judges were clearly of opinion, that his Majesty had undoubtedly an insu- rable interest in the sliips and cargoes taken possession of under the autliority of the statute j therefore the Attorney General, [Gibbs) and the late Mr. J. Park, who were counsel for the plaintiffs, thought it their duty to take verdicts r *p;7 1 °" those counts, which =^'averred the interest in the King. Lord L J Ellenborough also directed the jury, that in his opinion his Majesty had a good insurable interest, upon which direction the underwriters, by their counsel, tendered his Lordship a bill of exceptions. The parties agreed to take the writ of error to the House of Lords, without going through the Exchequer Chamber, and at last on the 29th June, 1808, the House unanimously, with the concurrence of all the Judges, gave judgment for the assured, afhrming the judgment of the King's Bench. But it has been held that a statement in a case reserved that the insurance was on account of tlie captors, precluded the consideration whether a count in the declaration could be sustained, averring the interest to be in the Crown : and therefore in the case of Routh v. Thompson, (a) after a proclamation by the king in council, to detain and bring into port all Danish vessels, a hired armed ship took and carried into Lisbon a Danish vessel, and sold her cargo there, towards paying, in part, the expenses of necessary repairs, but without the authority of a Court of Admiralty, and afterwards took in a cargo on freight for England from Lisbon, on which day hostilities were declared against Den- m,ark, by another proclamation of the king in council, after which an assurance w^as made on the ship and freight by order and on account of the captors : it was held that the captors had no insurable interest, as they could claim nothing, but only ex gratia of the Crown, the Dane having been seized before any declaration of war against Denmark, and the captors having no claim to prize under the Prize Acts. The action was tried before Lord Ellenborough, at Guildhall, in which the plaintiff took a verdict, subject to the opinion of the Court. Tiie case was argued in Trin. Term, 1808. Lord C. J. Ellenborough said the case involved a question of considerable magnitude, and the Court would consider of it ,• and at tlic end of the Term his Lordship delivered their opinion. His Lordship said, — "■ In one count the interest is averred to be in r *Pia 1 '^^^ Majesty, and the insurance is stated to have been on his *ac- L J count 5 and in another the interest is averred to be in the com- (6) 8 T. R. 13. (c) 3 B. «& P. 75. (a) 11 East, 428. UPON ANY KIND OF GOODS AND MERCHANDISES. 33 mander, officers, and crew of the Ditchess of Bedford ; and the insurance is stated to have been on their account. The case expressly states, that the insu- rance was made on account of the captors : and that statement prechides us from considering it as made on account of tlie Crown. Had there been no such specific statement, it might have been open to us to consider, whether the poHcy were not referrable to the interest of the Crown ; but after a distinct statement that the insurance was made (not on behalf the Crown, but) on account of the captors, it must be referred wholly to them ; and the plaintiffs must recover or fail, as they have or have not a riglit to aver an interest in them- selves. This brings us to the question, whether the)'' had an insurable interest? Their right in this respect has been put upon two grounds : first, that they had a well-grounded expectation, warranted by the practice of the Crown in similar cases, that the ship and freight, had there been no loss, would have been granted to them ; and secondly, that Uiey had the lawful possession, and were liable either to the Crown or the foreign owner for the safe custody of the vessel : and that on either of these grounds they are warranted in insuring on their own account. As to the first, it is material to see in what situation the captors stood: it is clear they had no vested right ; they could demand nothing from the Crown. Had the Crown made the grant in their favour, it would have been altogether, ex graficK a mere boon and gift. That gift might have been of the whole, or it might have been of part, and of a very inconsiderable part only. The bounty of the Crown would probably have been proportional to the merit of the capture, detention, and value of the prize. Had any considerable danger attended the performance of these services, the grant would probably have extended to the whole ; had there been no danger or difficulty, the grant would have probably been smaller ; and had it appeared that the seizure had been made upon speculation only, without any knowledge of the proclamation, there Avould probably have been no grant at all. At any rate, if there were a grant, it would be mere bounty ; *and has a man a right to indemnity r- ^_^ -. because he has lost the chance of receiving a gift ? Had the ship L -J arrived in safety, the captors would have had the chance of a grant from the Crown ; but can they, in respect of that chance, insure the ship's arrival ? To what extent could they insure ? Not to the whole, because the grant might have been of a part ; nor to any given part, because it must liave been uncer- tain what part, if any, would have been granted. The utmost extent is the value of the chance ; and how is that to be estimated ? Independently of the difficulty of fixing the value, and supposing such a chance insurable, must not the interest be so described in the policy ? — (or a man, who has no right, legal or equitable, either in ship or freight, might effect an insurance on either, merely because he has a chance some collateral benefit may come to him if the ship and cargo should arrive in safety.) The declaration must aver an interest in the subject insured, and that interest must be proved ; and how can it be said that these captors have any interest when the ship is altogether the king's — the freight is altogedier the king's ? And the captors have no interest in eitlier, nor other concern in respect to the same, beyond a mere chance that the king may be induced to give them something out of the produce of the ship and freight. As to the second count, that the captors had the lawful possession, and were responsible either to the Crown or to the Banish owners for the safe custody of the vessel, is this a true representation of their situation ? They certainly had the lawful possession, but were they responsible for the ship's safety, unless as far as tliat safety might be endangered by any Avrongful acts of their own.'' The seizure was warranted by the king's proclamation : that made their possession lawful. The subsequent declaration of hostilities put an end to any claim by the Banish owners, and, of course, to all responsibility of the captors as to them. It then became their duty to act for the best, with a view to the 34 UPON ANY KIND OF GOODS AND MERCHANDISES, safety of the ship, and the mere interest of the Crown therein. They were bound to leave Lisbon; it was for the interest of the Crown that they should r *fin "1 '^^'''^^ ^^^^ ^"^'P instrumental in withdrawing from Lisbon as nnich L J property *as she could possibly carry with propriety. They acted for the best, and were consequendy justified in respect to the Crown in what they did. The Crown cannot call upon them for damages ; and they have no right to ask for a sum as an indemnity, when they have not been, and (under the circumstances stated) could not have Ijeen damnified. The consequence is, that the plaintiff has no right to recover upon the policy. The question then arises, whether he has any right to recover his premium } And, as there was no fraud in the captors, in effecting this policy : as there was no illegality in the voyage or insurance : and as the resistance of the underwriters to the claim, upon the ground that there was no risk : the plaintifl" is entitled to his premium, and the verdict should be entered accordingly." Subsequently to the above action, another action on the same facts was brought by the plaintifl" against the defendant, wlio has subscribed for 300/. The action was commenced on tlie 2l3t June^ 1810, upon insurance made by him in his firm of P. & H. Le Mesuirer & Co., dated 12th November, 1807, upon the ship ICnud Tcrkehon, valued at 3500/., and on freight not valued, "at and from Lisbon to JjOndon.^'' The interest was averred to be in his Majesty, and the loss to be by perils of the sea. The defendant pleaded the general issue; and at the trial, before liOrd EUenborough, at tlie Sit. after Trin. Term, 1800, at Guildhall, a verdict was found for the plaintiff, subject to the opinion of the Court upon a special case. The argument on the case was heard in Hill. Term, 1811. Lord EUenborough, C. J. — "The points made for our consideration are, first, whether the king had an insurable interest, supposing him to have been apprised of his right at the time when the insurance was made, and had deter- mined to insure it; and next, whether he could adopt it after it was made. The facts are that, after a proclamation by the king in council for the detention of Danish vessels, an armed ship, in the service of his Majesty, took posses- sion of the Danish ship in question. Was it taken on behalf of the king.^ It r *pi n w^s taken by his servants, in an armed brig engaged in his *ser- 1- ^ vice ; and, if not taken piratically, must have been taken for him. The king, therefore, had possession of the Danish ship ; for as between his Majesty and those who were acting on his behalf and under his authority, and who were accountable to him if they damaged or embezzled the property, their possession was for this purpose his possession. Then had the king a lawful possession ? Was it ever made a question whether the king were a wrong-doer in seizing the vessels of a foreign nation? If, then, his Majesty had a lawful possession, may he not insure the property against loss.^ He was legally com- petent to do so, though not in the practice of insuring his own ships of war. IJut, it may be said, that he knew noUung at the time of insurance. It was made, however, by the orders of his officers, whose duty it was to take care of the property, and who were responsible to him for it. Then may he not adopt the act? The insurance is not, indeed, nuide in terms in the king's name, but it was by the direction of Sampson, who had been made agent by the captors for the prize. 15ut the captors had no interest of their own in it, and tlierefore, for their (nvn l)enefit, they were not competent to appoint an agent ; they must therefore be taken to have appointed him as agent on the part of the Crown, whose servants and agents ihey were. Then Sampson writes the letter authorizing the insurance being made, and therein he desires insu- rance to be nuule "for my account." That, certainly, was not intended as a direction to insure his own individual interest, but merely credit was to be given to him for the premiums ; and he proceeds to state that the insurance is to be UPON ANY KIND OF GOODS AND MERCHANDISES. 35 made of the Danish vessel, Knud Terkeho)i, whicli had been detained by his Majesty's armed ship, Duchess of Bedford, and for which lie was authorized to act as a^ent. There was no (communication of the names of the particular persons for whose benefit the insurance was to be made, nor was it necessary that the agent should then know who they were ; but it was to he effected in the name of the agent, for t!ie lienefit of those who should be concerned in interest : and tlie underwriters bound themselves to indenmify those r- ^^^ -. *who should appear to be interested in the prize, in case of loss ; it L J must, therefore, enure for the benefit of the Crown, which alone had any interest in the captured vessel. The Crown, then, having an insurable right, afterwards adopt this act of its servants and agents. And if the policy were made for the benefit of those concerned, and tlie Crown were concerned in interest, there can be no doubt it may adopt the act ; and it has adopted it. The case of Craufurd v. Lucena is full in point to this. The Dutch Commis- sioners were strangers to the property before it came within the ports of this kingdom, though connected \v\i\\ it in trust when it was brought there ; but the Crown afterwards adopted the insurance, and the House of Lords held that to be a valid adoption, as well in respect of the ships taken before as afterwards, (a) Here, then, there was an adoption by the Crown of the act by which the pro- perty was acquired : and there was also an adoption of the insurance made after- wards to protect it. By the adoption of the act of taking possession, there was an insurable interest in the king; and the adoption of the insurance gave him also an interest in the policy. The f^icts, therefore, being expressly stated from whence this conclusion may be drawn, and which it was left to us by the statement of the case, there is no occasion to send the question again to a jury." Routh V. Thompson, [b) The principle of law decided in the above case was recognized likewise in a more modern case of Hagcdom v. Oliverson. (c) In which it was decided that where the plaintiff made an insurance (c/) on "ship" as well in his own name as, for, and in the name of all and every other person, &c., in the usual form, for the benefit of one F. S. Schroeder, an alien enemy, and procured a license to legalize the voyage, and a loss happened, and two years afterwards, Schroeder, by letter *to the plaintiff, adopted the insurance, the p ^g^ -, plaintiff might recover against the underwriter, averring the interest "- in Schroeder. (a) The plaintiff had a verdict before Lord Ellenborough at Guildhall, subject to the opinion of the Court. After argument in Easter Term, 1814, Lord Ellenborough, C. J., said — "The plaintiff had a right to make an insurance, on the chance of its being adopted for the benefit of all those to whom it might appertain, which are the words of the policy. He might insure for those who were actually interested, and possibly who might be interested. Schroeder was interested, and might become privy to this insurance by subsequent adoption, according to Lucena v. Craufurd, and Bouth v. Thompson. He has adopted it, and now it is made a question, whether he can become privy to the benefit of it. It appears to me, upon those authorities he may make use of the name of the person at the head of the policy, as the person who had given the order to effect the insu- rance, which will satisfy the stat. 28 Geo. 3, c. 56. [b) It seems to me that (a) See ante, p. 7, and see by Lord Ellenborough himself, Lucena v. Craufurd, 1 Taunt. 385. (b) 13 East, 274. (c) 2 M. «fe S. 485. («-/) It was stated upon the argument that the plaintiff gave the order to the broker to make the insurance. (a) See 1 M. «& S. 5G6, where it appears that Schroeder was interested in part of the ship. (6) Sec ante, p. 3. 36 UPON ANY KIND OF GOODS AND MERCHANDISES. this action is maintainable for the benefit of Schroeder, who was interested at the time, and has become privy by adoption." The next case which, from its importance with respect to tlie law of insu- rances on "prizes," deserves mentioning, is the case of Slirling and olhem v. Vaughan. (c) This was an action on a policy of insurance effected by the plainliffs as agents, upon a ship called The Prize, No. 3, and her cargo, "from Monte Video to London.'' The subject of insurance was a prize taken from the Spaniards, by the conjoint forces of the army and navy upon the expe- dition to the river Plata: the interest was averred in the first count to be in the king: by the second to be in the captors ; there was a third count, not neces- sary to mention. The loss was alleged to be by perils of the sea, on the voyage home. At the trial before Lord EUenhorough at Guildhall, Admiral r *aA "1 Murray was called *as a witness, to show on whose account the L J insurance had been effected : and he deposed, that after the capture of this and other prizes by the conjoint forces employed on the expedition, a Mr. Blacker was appointed prize agent for ships, by the naval and military commanders, to act on behalf of all interested in the capture; and from him orders were received at home, to insure everything in which the captors were interested : but it did not appear that Blacker had received any appointment or direction from the Treasury, or any other department of government authoriz - ino- him specially to insure or take of the interests of the Crown, further than such an authority might by law be inferred from his appointment as prize agent by the captors, and tlie directions received by him from them, to act on behalf of all interested in the capture. Neither was there any evidence of the king's havinff repudiated such an authority. The prize was lost by the perils of the sea on the homeward voyage, and before any condemnation of her in the Court of Admiralty. Under these circumstances. Lord Ellenborough, C. J., left it to the jury, to infer an authority from the Crown to the captors, to cause insu- rance to be made, or an adoption of it when made on behalf of its interest in the prize, in which the captors themselves had at least an eventual interest : and, considering that the plaintiffs were entitled to recover either on the first or second count ; though he relied at the time principally on the former ; his Lordship advised the jury to find a verdict for the plaintiffs, which they did accordingly. A new trial Avas moved in Mich. Term, 1809. During the argument, the following observations fell from the Lord Chief Justice. Lord EUenhorough. — The law will presume, if nothing appear to the con- trary, that every person accepts that which is for their benefit. And, here, it is for the benefit of the Crown to preserve the prize, if it were only for the purpose of securing to the captors the reward which its bounty had provided for them in the event of condemnation. Besides, the dc facto captors have a ^.„_ -, special property in the thing ^captured, founded upon a lawful L J possession, which they hold for those who are ultimately found to be interested in it : and unless it be shown to be a mere tortious capture, it must be taken to be a lawful capture and possession by them. That view of the subject relieves it from all questions, whether a mere expectation of a sub- sequent grant from the Crown be insurable, as an interest in the subject-matter. After argument at the Bar, the Court at once pronounced judgment. Lord EUenhorough, C. J. — "A general verdict has been given for the plaintiffs in this case upon the declaration, which contains three chfferent aver- ments of interest in different counts (the third being out of tlie question) — the first averrinjr the interest in tlie king — the s(U'ond in the captors. The verdict must be sustained, if at all, either upon tlie first or second count. The sub- (f) 11 East, G18. UPON ANY KIND OF GOODS AND MERCHANDISES. 37 ject-matter of the insurance was a prize, taken by the army and navy con- jointly; and the words in which the authority is stated to have been given to Blacker to insure, were, that he was appointed prize ajjcnt for the ships, by the naval and military commanders, to act on behalf of all interested in the capture; and under that authority he directed the insurance in question to be made. The inclination of my mind at the trial was, that this might be consid- ered as a special authority, to act on behalf of the king as well as the immediate captors ; but I would not rely altogether on that, when, according to the more obvious and probable meaning of the words, the authority was meant to be given for the benefit of the captors, under the appropriation of the Crown, by virtue of the Prize Act of 45 Geo. 3. That brings it to the question of inter- est in the captors under that statute ; whether before condemnation they have such a vested interest in the subject-matter, as is by law capable of being insured? And, therefore, my opinion Avill not clash with any opinion deliv- ered in any other case, nor with the letter or spirit of the stat. 19 Geo. 2, c. 37, against gambling or wagering policies. But, though the verdict could be sustamable upon diis short ground, yet I wish to consider tbe case more at large. For all valuable purposes, the captors, as such, must be p ^^^ -, taken *to represent the Crown : and, in the case of Liicena v. L -• Craiifurd, it was considered by the same noble and learned person, {a) whose opinion has been adverted to, tliat the kuig has an insurable interest in a prize before condemnation ; and yet, that till condemnation there remains something wanting, the vesting of the full property in the Crown, (6) and to enable the Crown to grant it to others, as against the original owners. It is the sentence of a Court of Admiralty, upon the question of prize, which concludes the question of property against the original owners, according to the case of Hughes V. Cornelius, (c) Then by the act of 45 Geo. 3, the Crown gives up its right in the prize to the captors, subject, however, as before, to the final adjudication of the property, as prize, by the Court of Admiralty. But it is said that tlie Crown may still release the prize to the captured before condemna- tion, and therefore the captors cannot have an insurable interest in the property. But that right of the Crown trenches no more upon the insurable interests of tlie captors'^under the statute, than upon that of the king himself. It is then objected that the property in the prize may never become vested in the captors, It is vested, however, as far as the Crown has any right to vest it, defeasible no doubt, by an adjudication of the Court of Admiralty against the captors, to restore the prize to the former owners : but it is not in common experience that a defeasible right is insurable } It is the case of consignees of goods under a bill of lading : the goods on their passage home are liable to be stopped in transitu, and°his interest defeated : yet can it be said that the property is not so far vested in the consignee, as to entide him to insure? The indefeasibility of the property, therefore, is not the criterion of an insurable interest. Again, what is the case of an executor? Probate is necessary to complete his tide: yet before probate, he has tide sullicient to insure. The captors have the actual possession of the subject-matter of insurance by the grant of die p ^g^ -i king, *the only person in the kingdom who could contest the tide ^ with them. They have the possession, with a partial right of disposing of the thing immediately, liable indeed to have their right devested by a sentence of restoration. But what difference is there between the right of the captors and of the Crown in these respects? The assignees of the Crown, as they may be styled, must stand in the same situation in this respect as the Crown itself. (a) Lord Eldon, 2 New Rep. 323. (?>) See ib. (c) 2 Show, 232, Sir T. Raymond, 473; and Skin. 59. # 38 UPON ANY KIND OF GOODS AND jMERCHANDISES. This is not like insuring a mere expectation, nor like the case of the Dutch Commissioners, who had no interest in the ships insured, till they arrived within the ports of the realm. But these captors had a present possession, and a right to maintain trespass against any person attempting to take the prize from them. Even with respect to captors in general ; supposing the prize not to have been acquired tortiously, hut jure belli, I should think that in respect of their lawful possession and special property ihey might insure : but it is not necessary in this case to decide that general point; tliey had not only a right of possession, but a right of property as far as the Crown had the power of granting it, liable only to l)e dispossessed by the release of the Crown, or by a sentence of restoration." The other Judges concurred in this judgment, and the rule was discharged. In a recent case of Devaux v. Steele, (a) the principles of law laid down in the cases of Grant v. Parkinson, (6) Le Cras v. Hughes, (c) and Bouth v. Thompson, (d) came under the consideration of the Court of Common Pleas. This was an action brought upon a policy of assurance, which stated the assu- rance to be made to the amount of 800/. on bounty, "allowed by the French government, on the tonnage ship Le Henri, agreed to be valued at 800/. The declaration alleged that the said bounty would have been allowed by the French government, if the ship, with the cargo on board, had arrived in France : and stated a total loss by the perils of the sea. By a law of France relating to the r *R8 "1 ^^'^^^^ fishery, it is provided, *"that the vessel which shall have L J fished in either the Pacific Ocean, by doubling Cape Horn, or by passing through the straits of Magellan, or to the south of Cape Horn, at six- ty-two degrees of latitude at least, shall obtain on its return a supplemental bounty, if it brings back in the produce of its fishery, one-half at least of its burthen, or can prove a navigation of sixteen months at least." Held, that supposing the bounty not to be payable as a matter of right under the strict interpretation of the law ,• that the chance of receiving this bounty on her return, founded upon an alleged invariable course of practice of the French govern- ment in its administration, did not constitute an insurable interest. Lord Chief Justice Tindal, at the close of his judgment, says — "It would be impossible, as it appears to us, to hold this to amount to proof, that from the time of grant- ing the bounty there has been a uniform practice of allowing the bounty under the circumstances stated in the case ; and unless such evidence is produced, the case does not fall within the rule laid down in Le Cras v. Hughes, and the plaintiff's cannot be held to have taken an insurable interest in the bounty." Tenthly, a consignee of goods has an insura1)le interest. In a case in the Common Pleas of Hill and another v. Secretan, (a) where a house in Spain, who were indebted to the plaintiffs, consigned goods to Messrs. Dubois, and indorsed a bill of lading, with a letter annexed, directing them to hold a part of the said cargo for the use of the plaintiffs, who, upon getting such intelli- gence, made the insurance in question, being creditors of the house in Spain, though they had given orders for the goods ; the Court held that the plaintiffs being creditors of the house in Spain, raised a good consideration for the assign- ment ; and, that therefore, there could be no doubt that the plaintiffs had a good insurable interest. And where goods were consigned from Birmingham to Naples, under an r »ro "1 ^^'^^^ ^^ despatch certain goods, (on an insurance being made) it '- J was held that the consignee might *support an action for the injury (a) 8 Scott, 637; 6 B. N. C. 358 (b) Ante, pp. 38, 43, 53. {c) Artie, pp. 18, 51. {d) Ante, i)p. 57, 62. (a) 1 B. & P. 315, and Wolff v. Ilorncastle, 1 B. & P. 316. UPON ANY KIND OF GOODS AND MERCHANDISES. 39 which they sustained in the course of their conveyance to Naples. The Court held that the property in the goods vested in the purchaser, as soon as they were despatched from Birmingham, and that the intention of the party was strongly evidenced by the order for insurance, which had been given on the part of the consignee ; the consignee could not have sued upon that insurance, unless he had had an interest, nor could the consignor sue upon it as had been declared by the consignee. Fragano v. Long, (o) And in the case of Neale v. ReicU (b) where it was agreed between the ven- dor and the purchaser of goods that the goods should be shipped under the care of an agent, appointed by both parties, for the vendor's security ,• and the purchaser, wlio had drawn bills on his correspondent for the payment of the purchase, directed his correspondent to insure the goods to a certain amount, it was held that the insurance, which was made according to the purchaser's direction, and not in pursuance with an agreement with the vendor, was not liable to the claim of the vendor for a part of the purchase, and that the pur- chaser's agent was justified in paying the proceeds of the policy to him. There was no intimation that any person was concerned with him in the policy, nor did it give the purchaser's correspondent any authority to apply the pro- ceeds of the policy to the vendor's benefit. Mr. Justice Holroyd observed, "that the goods were shipped at the risk of the agent, and if they had been lost on the voyage the loss would have fallen upon him. Being under a liability for the goods," if lost, he insured to a large amount at his own expense ; he had made no bargain to insure, but, whether insured or not, was compellable to pay the bills, and therefore provided a substitute for the cargo to indemnify himself in case of a loss 5 but the sum insured was not subject to the same liabilities as the cargo." It is to be observed, that, if at the time of making *insurance p ^^^ -, the assured has an insurable interest in the property, it is imma- L J terial that the property may have afterwards passed to another party ; for the change of property can have no effect in relieving the underwriters from their liability, as tlie assured can sue on the policy for the benefit of the party to whom the property has passed. Thus in the case of Sparkes v. Marshall, («) where Mr. Bamford, who was a corn-dealer, at Southampton, sold to the assured from five hundred to seven hundred barrels of oats, to be delivered at Portsmouth, to be shipped by Thomas John and Son, merchants, at Youghall, from Youghall; and four days afterwards Bamford advised the assured that Thomas John and Son had engaged room in the packet to take about six hundred barrels of oats on the assured's account; and on the following day the assured made an insurance on the oats, per packet, to the amount of 400/. ; and the oats were shipped, but the packet being bound for Southampton, and refusing to stop at Portsmouth, Bamford sold the oats again, and delivered the bill of sale to another party at Southampton; and the plaintifl', after the loss, vested his interest, by indorse- ment, in Bamford, for a consideration : it was held that, as the assured had a right to bind Bamford to his bargain, and call upon liim either to procure the packet to bring the oats on to Portsmouth, or forward them by another vessel, he had a legal interest in the specific oats, and might insure it; and there was no assent on the part of the plaintiff to vary his right or claim to those particu- lar oats till the insurance was made and the loss known ; and that there was no principle of law on which a change in interest after the insurance had been (a) 4 B. & C. 219. (b) 1 B. & C. 657. (a) 3 Scott, 172; 2 B. N. C. 761 ; see Sutherland v. Pratt, 11 M. & W. 296. Ante, p. 12. 40 UPON ANY KIND OF GOODS AND MERCHANDISES. made, much less after the loss had happened, which could be set up by the uilderwriters agamst a claim for such a loss. But in another modern case of Clay v. Harrison^ (b) where the assured, in England, contracted with Messrs. Ilubbard and Co., at St. Petersbvrgh, to r *.7 1 -] ^^"^' ^^™^ ^ cargo *of deals, to be paid for by a bill at three months, L J which he duly accepted. The deals were shipped, and the insu- rance made. The ship was stranded on the voyage, near Ehineiir, and the deals saved, but so much damaged as not to be worth sending for. The assured, on hearing of the accident, gave the underwriters notice of abandonment the day before the bill became due. The assured having become bankrupt, Hub- bard and Co. wrote to their agents at Ehineur to take possession of the goods as their property ; it was held that the assurer's assignee, under a commission of bankruptcy, could not recover on the insurance, inasmuch as the stoppage in transitu revested the property, and the assured had no longer an insurable interest. Lord Tenterdcn. observing that the question was, whether the bank- rupt had an interest in the goods insured at the time of the loss, and that depended upon the effect to be given to the stoppage in transitu, "we are of opinion that, under the peculiar circumstances of this case, the bankrupt, after the stoppage in transitu, had no property, and that therefore the action cannot be supported." In the case, also, of TVolff' and another v. Horncastle, {a) which was fully treated of in a former section, (6) it was held that where a merchant had con- signed a cargo to a company in London, and drawn bills for the amount, but transmitted tlie bills of lading through the plaintiffs, his general agents, to be sent to the company that they might insure, and he, at the same time, drew on them for 300/., which bills were accepted and paid; but the company refused to accept or draw on them, or take the cargo, or to insure, upon which the plaintiffs made the insurance in their own name, and informed the consignor, who approved thereof, the plaintiffs were to be considered as consignees of the whole, and had a right in that character to insure for the benefit of their con- signor, and that they had a clear insurable interest in themselves to the amount of 300/. ^^,-y -, *In the case of Smith v. LasceUes, {a) it was decided that, if a L J merchant abroad, who is interested in goods and the freight of the cargo, mortgage them to his creditor here for payment of money at a certain day, and by letter inclosing the bills of lading, and at the same time give direc- tions to him to make an insurance, the latter will be liable to an action for not insuring, notwithstanding the mortgage was absolute before the letter was received. In the foregoing cases it lias been seen how strictly the Courts have construed that part of tlu? act of 19 Geo. 2, c. 37, which prohibits any person making an insurance wbo lias not got an interest in that which is the object of the insu- rance ', and whenever tliey have seen on the face of the policy, that tliere is, in fact, no fair contract of indemnity between the parties, but only a gaming transaction, they have never hesitated to declare that policy void by the statute. The case of Loumj and another v. Bourdieu {b) is an instance of the above observation. The plaintiffs had lent to Lawson, captain of the Lord Holland, East India- man, 26,000/., for which he had given them a common bond in the penal sum (6) 10 B. & C. 99. (a) 1 B. cSt P. 31G; and scu Robertson and others v. Hamilton, 14 East, 522. (i) Sect. 1, ante, p. 4. (a) 2 T. B. 187. (i) Doug. 468. UPON ANY KIND OF GOODS AND MERCHANDISES. 41 of 52,000/. While he was with his ship at China, the phiiiilins got a policy of insurance underwritten by the defendant and others, which was in the fol- lowing terms : — "At and from China to London, beginning the adventure upon the goods from the loading thereof on board tlie said ship, from and immediately following her arrival in China, valued at 20,000/., being tlie amount of Captain Patrick Lawson's common bond, payable to the parties, as shall be described at the back of this policy; and it bears date, 16th day of December, 1775; and in case of loss, no other proof of interest to be required than the exhibition of the said bond : warranted free from average, and without benefit of salvage to the insurer." At the head of the subscription was written, — "On a bond," as above expressed. Captain Lawson sailed from China, and arrived safe with his ^privilege (as it is called) or adventure in London, 1st July, r- ^,^g -> 1777, none of the events insured against having happened. The L receipt of the premium was acknowledged at the back of the policy. This case came before the Court, upon an action for a return of premium, on the ground that the policy being widiout interest, the contract was void. At the trial, which came on at the Sit. after Trin. Term, 1780, the Chief .Justice was of opinion diat this was a gaming policy prohibited by the statute 19 Geo. 2, c. 37, and a verdict was given for die defendant. A motion for a new trial was afterwards made, when the majority of the Judges confirmed Lord MamfieUVs opinion. Mr. Justice Willis differed from his brethren: the learned Judge being of opinion that it was not a gaming policy : that it did not appear to hnn that "the parties had any idea they were entering into an illegal contract ; that the whole was disclosed, and they thought there was an interest: this was a mistake, but it is a new point of law. Lord Mamfield. — "It is certainly true, in many instances, that first thoughts are best. I am now very much inclined to my first opinion. There are two sorts of policies of insurance : mercantde and gaming policies. The first sorts are contracts of indemnity, and of indemnity only ; and from that principle a great variety of decisions and consequences have followed. The second sort may be in the same form, but in them there is no contract of indemnity, because there is no interest upon which a loss can accrue. They are merely games of hazard, like the cast of a die. In the present case the nature of the msurance is known to both parties. The plaintiffs say, ' We mean to game, but we give our reason for it: Captain Lawson owes us a sum of money, and we want to be secure, in case he should not be in a situation to pay us.' It was a hedge : but they had no interest ; for if the ship had been lost, and the underwriters iiad paid, slill tlie plaintifls woidd have been entided to recover the amount of the bond from Lawson. This, then, is a gaining policy, and against an act of Parliament." *In Puller v. Glover, [a) it was held not to lie a gaming policy p ^^^ -, for a person who had chartered goods to St. Pefersburgh to make L the underwriters agree to pay a total loss, in case the ship should not be allowed by the Russian Government to discharge her cargo at St. Pefersburgh; and the assured were allowed to recover, on an allegation that the vessel had not been allowed to discharge her cargo, but was obliged to return, by which the value was reduced below the invoice price, together with the charges thereon, and the premium of insurance, &c. 1st, it was held not to be a gaming policy ; 2ndly, it is an insurance upon the goods, and not on die voyage; and 3rdly, the agreement allows the non-admission of the goods to be a loss. Where, by the express terms of a charter-party, the owner of the ship stipu- lates with the freighter that part of the freight shall be payable beforehand, inas- (o) 12 East, 124. 42 UPON ANY KIND OF GOODS AND MERCHANDISES. much as the freighter would lose the money so advanced by him, unless the ship and cargo arrived safe, he therefore has an interest in insuring that event to the amount of the sum he has advanced. (6) It is undoubtedly competent to the owner to make such a stipulation ; but, if he does, it is his duty to take care that it is inserted in clear and explicit language in the charter-party that the money advanced shall be advanced in part payment of the freight, (c) But if it be merely an agreement between the parties, which is a very usual occur- rence, that the freighter should make an advance to the master for the use of the ship, this is not to be considered as a part, in the absence of express terms in the charter-party to that effect, but it amounts only to a loan on the part of the freighter to the owner of the ship, and consequently the former has no insurable interest in the money advanced. This was decided in the case of Mansfield v. Mai/ land, (d) which was an action on a policy of insurance on "ship and goods," from Quebec to London, r- i;.-,p -I By a memorandum, drawn *at the foot of the policy, the insurance L J was declared to be on a bill of exchange for 219/., drawn by the master on the plaintiffs, at Quebec. A.t the trial, before Abbott, C. J., at Guild- hall, it appeared that, by a memorandum of charter-party between the owners and the plaintiffs, the ship was to proceed from London to Quebec, and there take in her cargo, one-half of the freight to be paid on unloading and right delivery of the cargo, and the remainder by bill, on L^ondon, at four months' date ; the captain to be supplied with cash for the ship's use. In pursuance of this last stipulation, the master drew the bill of exchange in question for 219/., value received, for the ship's use, on the plaintiffs, which was duly accepted, and paid. The ship was lost on the homeward voyage. The Lord Chief Justice was of opinion that the plaintiffs had no insurable interest, and directed a nonsuit; and Euijley, J., said, — "If the memorandum of charter-party had clearly expressed that the money advanced should be in part payment of the freight, then it would follow that the loss of the ship would occasion the loss of the money advanced by the freighter, and he would have had an insurable interest in it. But if that is not so, and it be only a loan by the freighter, he would have no insurable interest, having a remedy against the owner for the debt. Now, if it had been the intention of the parties it should be a part pay- ment of the freight, one would naturally have expected that the memorandum of charter-party would have been differendy worded. The stipulation is, that one-half of the freight is to be paid in cash on unloading, and the remainder l>y bill, in I^ondon. Now, instead of this, there woukl have been added, 'deducting premium advanced,' if such deduction was intended to be made. It seems to me, therefore, that, in the absence of any such stipulation, this money was to be advanced as a loan by the freighter, which he might, in case freight was earned, deduct from the freight, but for which, if no freight were earned, he had still his remedy, even against the owner; and, in that case, it is admitted that he had no insurable interest." r- ^.^r. -| *In die case of Tanker v. Scott, (a) which was an action for L -^ money paid for the use of the defendant, who was the master of a ship, called the Ocean, who drew, in Canada, a bill on his owners here, in favour of T. Gaudie, for 1990/., for supplies lor the ship's use, and wrote on the bill, "If be not honoured, the holder will insure the amount, and place the premium, &c., to the drawer's account and the ship's account," J. Scott. The bill being dishonoured, the holder insured the ship for three months, and the (fi) Sec De Silvalc v. Kcn.lal, 4 M. & S. 37. (<;) Per T.ord Tcntordcn, 4 B. & A. 585. (d) 4 B. «St A. 582. (a) G Taunt. 234. UPON ANV KIND OF GOODS AND MERCIIANDISEa. 43 interest was declared to be "on the interest in a bill of exchan'jfe, drawn by the defendant, on Mr. Bowtield, in favour of T, Goudie, dated Quebec, lOlh June, 1814, being for value received, for the use of the said ship; and it was agreed that, in the event of loss, the bill should be considered as sufficient proof of interest, and payment made accordingly." The drawee, receiving advices from the drawer, paid the bill, after the insurance had been eflected, but refused to pay the charge of insurance. The ship was lost after the expiration of the three months. At the trial, at Guildhall, Sit. after Easter Term, the counsel for the defendant made four objections to the plainlili''s recovering. Glhb.-i, C. J., overruled dieni ; and the jury found a verdict for the plaintiffs. On the motion ibr a new trial, the counsel for th;; defendant moved on tivo only of the objections made at the trial. First, the insurance was illegal; [b) secondly, he urged that, if the holder was authorized to effect an insurance, it was his duty to effect a policy for the voyage, so that the owners might have the benefit of it, in case the ship was lost. Gibbd, C. J. — "There is nothing in either of these objections. A discre- tion was given to the holder of the i)ill to insure for his own benefit, and ho was to insure according to that discretion as he chose to exercise it; and he has exercised it prudently. As to the other objection — on the illegality of the insurance — I desire the doctrine I lay down may be confined to this particular case : I thiidv the plaintiffs *werc entitled to pay the money they p ^^ -, paid for the use of the master; this, too, would be clearly an avail- L J able security in all cases, except the case of a Brilhh ship, and it is not in proof that the plaintiffs knew, nor was it incumbent on them to inquire, whether this was a British ship or not." The Court refused the rule on all the grounds. A question, bearing much upon the subject of our present consideration, was decided in a very recent case (in the Court of King's Bench) of JVinter v. Haldimand. (a) The matter came before the Court on a motion to set aside an award, and the question was, wdiether the underwriters, upon a policy of insurance "on merchandises," could be made liable for certain charges and expenses incurred at the port of the ship's loading, considered as additional value imparted to the goods ? The facts v/ere the following : — 7'he assured hired a vessel, on a voyage from Buenos Ayres to Canton and back ; they were to pay 10,000 dollars for the use of it, in this manner, viz : all the expenses that might be necessary at Canton for the port-charges, and 2000 dollars for other incidental expenses, and the remainder at the vessel's return to Buenos Jlyres. The underwriters had no notice of the agreement. It was held that the assured, on a policy on "merchandise," could not recover the sums of money paid at Canton, as part of the value of his goods. After the argument at the Bar, the Court took lime to consider their judgment, which was al'terwards delivered by Lord Tetiterden, C. J. — "In the argument at the Bar, on behalf of the plaintifis, reference was made to the principal foundation of all insurance, viz : indemnity; and, it was contended, to efl'ect that object, and bring the case within the principle, the payment at Canton must be considered as part of the value of the goods shipped at that place, and it was observed that the charges of shipping and the premium of insurance, are, even in open policies, consid- ered as part of the value of the goods ; and further, the freight also, if paid in advance, was in practice considered as part of their value on a total loss. This latter assertion was denied by the defendant's counsel to be true ; r- ^^„ -, and the *Court has no means of knowing how the practice is, nor •- -• (/;) Citing Kulen Kemp v. Vine, 1 T. R. 304. (a) 2 B. & Ad. 649. 44 UPON ANY KIND OF GOODS AND MERCHANDISES. is the ascertainment of the practice material in our view of the case. No case like the present lias been found in our books, nothing of the kind was quoted from foreign authors, and, as far as my knowledge of them extends, nothing favourable to the plaintiff can be found in them. We must therefore look at the terms of the poUcj/, which is the contract in question, and whether its terms, construed according to any principle recognized by usage in this country, will authorize the plaintiff to charge the defendant with those payments at Can- ton, as part of tlie value of the merchandise shipped there : there is no other mode in which the defendant can be made answerable for them on this policy, thouo-h we have no doubt that those payments might have been made the sub- ject of a special and distinct insurance. It is found that the underwriters had no notice of the terms of the charter-party, and therefore they could not know whether the parties interested would have engaged, as they have done, to treat the payments to be made at Canton, as part of what is called freight, so that the loss thereof would fall upon them, if the goods were lost ; or whether the owners of the ship were to find the means of making those payments on their account. And it appears to us to be unreasonable to make the extent of the responsibility of the underwriters depend upon the private contract of the par- ties interested, and not upon the general usage and custom of trade. The sum of 10,000 dollars is not properly to be called freight, but is the price of the hire of the ship, and would have been payable if the whole 48,000 dollars had been left or otherwise disposed of at Canton^ and the ship had returned in bal- last, or with passengers, instead of 'merchandise.' And if these payments, to the amount of 5154 dollars, can be added to the price of the goods shipped in this case, it would be difficult to say that they might not be added to the price of a much less quantity, or a much less valuable cargo. In truth, the sums payable to the owners of the ship, for the use of the ship, have, under this charter-party, no distinct relation to the goods. We are, therefore, of opinion, P .;j~q -| that the payments in question cannot be added to, *and considered L J as part of, the price of the goods. Our opinion in this case will have no effect on the question, whether the payment on the shipment of goods ran be added to their price, so as to form part of their value in an open policy, if ever that question should arise. Such a payment is not properly freight, but the price of the privilege of putting the goods on board the ship, in order to have die opportunity of having them taken to the place of their destination : it relates specially and distinctly to the goods ; and when it is constantly made, according to the usage of the trade, from and to any particular country, the usage may be supposed to be known to the underwriters, and may be (but we do not say that it will be, or ought to be) considered as part of the shipping charges, or, at least, as so analogous to as to be governed by the rule that is applicable to those charges in the construction of the policy." The same doctrine was held in the case of Palmer and others v. Pratt. («) Where a merchant advanced money to the captain of a ship, to pay for goods he was about to carry to India, on the security of two bills of exchange, pay- able on the contingency of his arrival there, and the merchant effected an insu- rance on the "ship and cargo," declared by the policy to be on the bills in question : it was held that, first, he could not recover, because the bills being on a contingency, were not valid : and, secondly, because he had not an insu- rable interest, but had a remedy over against the party for whose use the money was lent. (a) 2 Bing. 185. UPON THE BODY, TACKLE, ETC. OF THE SHIP. ^ 45 SECTION V. AND ALSO UPON THE BODY, TACKLE, APPAREL, ORDNANCE, ETC., OF THE "GOOD" SHIP CALLED, ETC. Having in the previous section discussed the law relating to the words "on any kind of goods and merchandises" *stated in the policy, and ^ ^g^ -, having pointed out the species of property wliich come under the L general, and common, and usual form of the printed policy on "goods," and likewise the instances in which the suhject-matter of the insurance must be specially stated, and "declared on" the face of tlie policy, and having entered at considerable length upon the nature and quantity of "interest" the assured must have in the subject-matter of the assurance; and also having stated the law on the important subject, where the statute law has interfered in tlie case of "wager" policies, and policies "on interest or no interest," or without fur- ther proof of interest, than the policy, "by way of gaming, or wagering, and without benefit of salvage;" and has enacted, that all insurances at this day, contrary to the stat. lOGeo. 2, c. 37, are absolutely void and of no effect: we now come to a very important head, viz: — "on the body, &c., of die ship, and the master of the ship, for the voyage." Firsdy, we shall speak of the names of the "ship" and "master." This is expressed in the policy, in the following terms — "and also upon the body, tackel, apparel, ordnance, munition, artillery, boat, and other furniture of, and in the good ship called the , whereof is master under God, for diis present voyage — or whoso- ever else shall go for master in tlie said ship, or by whatsoever other name or names the said ship (a) or the master tliereof, shall be named and called." It seems to be necessary by the custom, and practice of merchants, that the names of the "ship" and "master" should be inserted in the policy, in order that the assurers may know with certainty the strength, age, and sufficiency of the ship, and the skill and knowledge of the captain. The usage in this matter is the same in respect to the rules in Foreign Maritime States, {b) Some- times there are insurances " upon any ship or ships" expected from a parti- cular place. And Mr. J. Park says, in his treatise, (c) " that although it is more accurate to insert the name of the captain, he would not be understood *to assert, as no decision has been made, that if a different captain r- ^^^ -, came in the ship from that whose name is mentioned in the policy, it would therefore be bad, especially as the policy contains the words, "or whosoever else shall go for master in the said ship. " And it has been decided in a case of Le Mesurier v. Vaughan, (a) that an insurance would not be vitiated if the name of the "ship" was mistaken, pro- vided the identity was proved, and where there was no fraud; for, as policies contain in the printed form, "or by whatsoever name the ship should be called" — those words are not confined to the case of the ship having another name, than that mentioned in the policy. Tiie above case was on an insurance on "goods," described by the policy to be on board the ''American ship President;'" the real name being "•The President; but the broker having been directed, that the ship was named ''President,'' and to designate her as an American ship, had by mistake described her as above. The Court were (a) See 3 & 4 W. 4, c. 55, s, 24. (b) Ord. of Lew. 14. Tit. Insurance, art. 3. Ord. of Amster. s. 2. (c) Park Ins. p. 19. (a) 6 East, 382. 46 UPON THE BODY, TACKLE, ETC. OF THE SHIP. opinion that the whole was to he taken as her name, and not as a warranty "her being an Jimerican ship" called "• The President.'" And it was also of of "her being an Jimerican ship' held to be no variance, that the real name of the ship was " 77je President,'' the identity of the ship with that name being proved, and no fraud in the trans- action. And in delivering his opinion, Mr. .T. Lmmence read a note of a case, decided by Lord C. J. Lee, at Guildhall, exactly in point, ip) The insurance in that case was made "on The Leopard, or whatsoever name, &c., whereof was master. A. B., for that voyage, &c., "or whosoever else should be master." Upon the evidence of A. B., it appeared that this ship was called The Leonard, and was never called The Leopard. But the Lord Chief Justice was of opinion, that it was only necessary to prove the identity : which had been done by Captain A. B. , -, Also an insurance may be made on "ship or ships" "from *a L '^-^ J particular place." This was held, in the case of Kewley and another v. Ryan, [a) The case was this: "an insurance is made on certain goods on board a certain ship on a voyage, at and from Grenada to England f and another policy is also made "on any kinds of goods as interest, should appear on board 'ship or ships,' on the same voyage :" warranted to sail within a limited time; but no circumstances relating to the first poUcy are communi- cated to the underwriters of the second, nor do they know that the first was made. Goods to the full amount of the sum insured by the first policy, are put on board the specified ship, which arrives in safety. Also goods to the full amount of the sum insured in the second policy, were put on board another ship which sails within the limited time from Grenada, with an intention of touching at Cork on her way to Liverpool; and is lost before she arrives at the deviating point. The plainfiffs obtained a verdict for the second insurance which had been made. At the argument upon the rule for a new trial, it seemed that at the trial great doubts were entertained whether such a policy as this on "ship or ships" were a good one. The counsel for the plaintiflf argued that these were well known to foreign nations : {b) and were constantly used by us in the West India trade in time of war, when it was uncertain by what ships the produce of the different islands might be sent to Europe. Mr. J. Bullcr cited the case of Henchman v. Offley, (c) in confirmation of the doc- trine, that the assured had a right to appropriate : the Court took time to consider the question. And afterwards in Trin. Term, 1794, the Court, con- sisting of Lord Loughborough C. J., Mr. J. Heath, Mr. J. Booke, [d) declared their opinion as to the legality of the policy on "ship or ships," that it was too well established by usage and authority to be disputed. Rule dis- charged. r ^.Q^ -1 Secondly, a question respecting the carrying the " boat of *the L -• ship and the practice in what'manner, in some voyages, the boats may bo placed on the ship," was one of the points in the case of Blackett v. Royal Exchange Assurance Company. («) It was an action of covenant on a policy of assurance, on the ship " Thames, her tackle, apparel, ordnance, munition, boat, and otiicr furniture," in the usual form. At the trial before Vaughan, B., at the Sit. in London, the plaintiffs having ])rovcd the loss of a boat, which, with other damage subsequently incurred by stress of weather, amounted to more than 3 per cent, within the memorandum. (6) Hall V. Molincux, Dec. 1744, at Guild. 6 East, 386. (a) 2 II. B. 343, (6) Emerig. 173. (c) B. K. Mich. 23 Geo. 3, H. B. 34.5, n. \d) J. Bu/kr was absent, but concurred in the judgment. (a) 2 Cr. & J. 244 ; 2 Tyr. 266. UPON THE BODY, TACKLE, ETC. OF THE SHIP. 47 the plaintiff's proved tliat it was considerccl. proper and necessary to sling the boats on the outside the ship, in voyages of the description of the insured. The defendants oflered evidence of a usage, that hoats slung on the outside of the ship on the quarter, were not protected by the policy. The learned Baron was of opinion, that such evidence of usage was inadmissible, and rejected it. The plaintill's had a verdict, with leave given to the defendants to move on the rejection of the evidence of usage. Lord Ljjndhurst, C. B., now in Hil. Term, 1832, delivered the judgment of the Court. "There were two ques- tions," (one of which we have only at present to consider) — "one, whether parol evidence of an usage was admissible to show, that for boats on the out- side of the ship, slung upon the quarters, underwriters never paid ?" The policy is in the usual form, and as far as regards the ship, imports to be upon the ship (that is, the body,) tackle, apparel, ordnance, munition, boat, and other furniture of the ship, called " TTie Thames/^ There is no exception, and the policy is, therefore, upon the face of it, upon the "whole ship, on all her furniture, and on all of her appareh" It was in evidence in the cause and admitted upon argument, that upon such voyages as that insured, ships inva- riably carry a boat in the place where this boat was carried, and slung as this boat was slung; and that tlie ship would not be properly furnished or equipped, unless she had a boat in that *place and so slung. The objection p ^.q^ -, then to the parol evidence was this, that it was not to explain any ■- -' ambiguous words in the policy, any word, which might admit of doubt, nor to introduce matter upon which the policy was silent, but was at direct variance with the words of the policy, and in plain opposition to the language it used. That, whereas the policy imported to be upon the ship, furniture, and apparel generally — the usage is to say, that it is not upon all the furniture and apparel, but only upon part, excluding the boat. Usage may be admissible to explain what is doubtful, it is never admissible to contradict what is plain. The cases are all in Starkic upon Evidence. («) The authority referred to in the argu- ment, as to the goods lashed on deck, seems to be plainly distinguishable, and to proceed upon a different principle. "On an insurance 'upon goods,' the underwriter is entitled, in general, to expect that they shall be carried in that part of the ship usually appropriated to the stowage of goods, not in a more dangerous part ; or, if they be goods which ought not to be placed in the ordinary stowage, but in a more perilous situation, he ought to be apprised, either of the goods, or of the part of the ship in which they are to be put. If he is left to suppose that they are ordi- nary goods, he will naturallj^ suppose they will be placed where ordinary goods are placed, and that Uiey will incur the hazard only of ordinary goods ; and if he were to be made answerable for extraordinary peril, he would be answer- able for a peril which he had not contemplated, and for which he had not received an adequate compensation. This, it seems to us, is the true principle upon which evidence of usage is admitted as to goods lashed on deck. They are not in the part of the ship where goods are usually carried, they are in more than usual peril, and a usage that they are not covered by an ordinary policy on goods, but that they require a distinct explanation to the underwriter, of the part of the ship in which they are to be -^'carried, or (where p ^q, -, that will imply the same information) of the nature of the goods, •- J is not at variance with any part of the policy, is essential to that information which the underwriter ouffht to receive, to enable him to estimate the risk and calculate the premiums, and is a portion of that fairness which ought to be rigidly observed upon all these contracts. The policy was upon goods gener- (fl) Pp. 754, 759, 3rd edit. Vol. VII.— E 48 UPON THE BODY, TACKLE, ETC. OF THE SHIP. ally, and the usage explains what description is intended, viz : of ordinary, not of extraordinary danger. We are, therefore, of opinion, that the evidence of usage was properly rejected. In the case of Pelly v. Governor &r Co. of the Royal Exchange, {a) the plaintiff being part owner of the ship Onslo?/', an jEast India ship, then lying in the Thames, and bound on a voyage to China and back to London, insured it at and from London, to any ports or places beyond the Cape of Good Hope and back to I^ondon, upon the "body, tackle, apparel, ordnance, munition, artillery, boat and other furniture of and in the said ship." The ship arrived in the river Canton, in China, where she was to stay to clean and refit, and for other purposes. Upon her arrival there the sails, yards, tackle, cables, riggings, apparel and other furniture were by the captain's order taken out of her and put into a storehouse called a bank-saul, built for that purpose on a sand-bank or small island, lying in the said river near one of the banks called Bank-said Island, in order to be there repaired, kept dry and preserved, till the ship should be heeled, cleaned and refitted. Some time after this a fire broke out in the bank-saul belonging to a Swedish ship, and communicated itself to another, and that to the one belonging to the Onslow, and consumed the same, together with all the sails, yards, &c. belonging to the Onslow that where tlierein. It was stated, that it was the universal and well known usage, and has been so for a great number of years, for all European ships which go to China, except Dutch, when they arrive near this Bank-said Island, in the r -«R 1 *river Canton, to unrig the ships, and take out their sails, yards, L J tackle, cables, rigging, apparel and other furniture ; and to put them on shore in a bank-saul as the Onslojv had done. This is for the com- mon and general benefit of the owners of the ship, the assurers and assured, and all persons concerned in the safety of the ship. The ship arrived safe in the Thames, after being fresh rigged, &c. for the voyage. The question for the opinion of the Court was, whether the insurers are liable to answer for this, so happening upon the bank-saul, within the intent and meaning of this policy. The Court took time to consider, and then. Lord Mansfield — "By the express words of the policy the defendants have insured the tackle, apparel and other furniture of the Onslow from 'fire,' during the whole time of her voyage, until her safe return to London without any restrictions. Her tackle, &;c. were inevi- tably burnt in China, during her voyage, before her return to I^ondon. The event then, which has happened, is a loss within the general words of the policy; and it is incumbent on the defendant to shew, from the manner in which this misfortune has happened, or from other circumstances, that it ought to be construed a peril which they did not undertake to bear. If the chance be varied, or the voyage altered by the fault of the owner or master of the ship, the assurer ceases to be liable ; because he is only understood to engage, save from fortuitous dangers, provided due means are used by the trader to obtain tlial end. IJut he is not in fault, if what be did was done in the usual course, and for just reasons. The assurer, in estimating the price at which he is wilHng to indemnify tlie trader against all risks, must have under his consid- eration the nature of the voyage to be performed, and the usual course and manner of doing it. Every tiling done in tlie usual course must liave been foreseen, and in contemplation at the time he engaged ; he took the risk upon a supposition that what was usual or necessary should be done. In general, what is usually done by such a ship, witli such a cargo, in such a voyage, is r tfi-r "I ^understood to be referred to in every policy, and to make part of L J it, as much as if it was expressed. The usage being foreseen is (a) 1 Burr. 341. UPON THE BODY, TACKLE, ETC. OF THE SHIP 49 rather allowed to be done, than what is left to the master's discretion, upon unforeseen events : yet, if the master ex justa causa, go out of the way, the insurance continues. Upon these principles it is difficult to frame a question which can arise out of this case, as stated. The only objection is, that they were in the bank-saul instead of in the ship ; upon the land, not at sea, or upon water: and being appurtenant to the ship, losses and dangers on shore could not be concluded. The answer is obvious : first, the words make no such distinction. Many accidents might happen at land even to the ship. Suppose a hurricane to drive it a mile on shore, or an earthquake may have a like effect; suppose the ship to be burnt in a dry dock, or suppose accidents to happen to the tackle upon land, taken from the ship while accidentally and occasionally refitiing, as on account of a hole in her bottom, or other mis- chance ; these are all possible cases. But what might arise from an accidental repair of the ship is not near so strong as a certain necessary consequence of the ordinary voyage, which the parties could not but have in their direct and immediate contemplation. Here the defendants knew that the ship must be heeled, cleaned and refitted in the river Canton; tliey knew that the tackle would be then put into the bank-saul; they knew it was for the safety of the ship, and prudent that they should be put there. Had it been an accidental necessity of refitting, the master might have justified taking them out of the ship, ex justd causa: but describing the voyage is an express reference to the usual manner of making it as much as if every circumstance had been mentioned. Was the chance varied by the fault of the master .'^ It is impos- sible to impute any fault to him. Is this like a deviation.'' No, it is ex justa causa, which always excuses. Had the assurers in this case been asked, whether the tackle should be put in the bank-saul ; they must, for their own sake, have insisted that it should. They *would have had p ^n„ -, reason to complain, if from their not having had them put there, ^ J a misfortune had happened. In such a case, the master would have been to blame, and by his fault would have varied the chance. They have taken a price for standing in the plaintifTs' place as to any losses he might sustain in performing the several parts of the voyage, of which this was known and intended to have been one. Therefore, we are all of opinion, that in every light, and in every view of the case, in reason and justice, and within the words, intent and meaning of this policy, and within the view and contempla- tion of the parties to the contract, the assurers are liable for this loss." In an assurance upon a Greenland ship, it became a question whether the lines and tackle employed in the fishery in those seas could be recovered under a policy made upon the "'ship, tackle and furniture." It was the case of Hoskins v. Fickersgill, (a) and came before the Court upon a motion for a new trial, and the Judges were unanimously of opinion that they were not protected by the policy not being part of "the ship's tackle or furniture." And in the case of^ Gale v. Laurie, (b) C. J. Abbott says, "these stores are not considered as covered by an ordinary policy on the ship. "But insurance is a matter of contract, and the construction of the contract depends in many cases upon usage. And the construction of a policy can furnish no rule for the construction of this act of Parliament, which was passed for purposes of a different nature," (53 Geo. H, c. 159.) But the Courts of law will not extend the constructions which they have put upon this contract, so as to allow a person to recover for the loss of that which he never intended to insure : for instance, it cannot be allowed to the owner of a ship who has insured the "ship" merely that he should be capable of (a) B. R. 23 Geo. 3, East. T. (b) 5 B. & C. 156. 50 UPON THE BODY, TACKLE, ETC. OF THE SHIP. recovering the loss of a cargo laden thereon, or extraordinary wages paid to r *ftq 1 ^^^^ seamen, or provisions *consumed hy the detention of the ship L J longer than it was expected. MoUoy [a] says, "that if a mer- chant insure a ' ship' generally, and the ' ship' then happens to be laden, and is afterwards lost, the insurer shall not answer for the goods, but only for the 'ship.'" This rule of insurance is not contradicted by any foreign jurists. (/;) We come now to consider some of the decisions in this country on the above rule. The first important case that requires our notice, is that of Fletcher and others v. Poole, (o) In an insurance upon the "ship Tartar.,'''' at and from London to Neivcastle and Marseilles., and at and from Marseilles to her dis- charging port or ports in the JVest Indies, (Jamacia excepted) the facts were, that being distressed she bore away for Minorca, and put into Port Mahon, where the captain obtained leave from the Vice Admiralty Court to have his ship surveyed, in consequence of which she was long detained ; and the action was brought to recover the extraordinary wages and the provisions expended during the detention for these repairs. Lord Mansfield was of opinion, that such articles as sailors'' tvages and provisions while a ship is detained to refit, can never be allowed as a charge against the assurer on "ship," and a verdict was accordingly given for the defendant. In Ede7i v. Poole, (d) the action was of a like description, on a policy of insurance "on the ship and goods from Ostend to Dominique.''^ The following were the facts of the case: that the ship met with bad weather, and was in great distress : that the crew threatened to take the command from the captain unless he would make for the next port ; that he then went to Ferroll to repair his ship, and that by the time the repairs were done the crew forsook her ; that he then got another crew, and at the moment he was going to sail, the Spanish governor stopped him ; that after a detention of thirty-seven days she was discharged. This action was brought r -on 1 ^*^'' *^^ ^expense incurred by tcages, provisons, S,-c., during the L J demurrage at Ferroll. On the part of the assurer it was contended, and so held by Mr. J. Buller, Avho presided upon that trial, that the freight and not " the ship'''' were liable for this loss, and that the charge of demurrage could not be allowed upon this policy. The plaintiff was nonsuited. The same principle was upheld in the case of Robertson v. Fiver, [a] Avhich was a similar action of insurance on the ship Dumfries, "at and from London to Africa.'''' In coming from thence on her way to the West Indies, slie stopped at Barbadoes in December, 1781, for the purpose of watering, at which island an embargo was laid on all ships by order of Lord Hood, the com- mander-iu-cliief on the station. The action was brought to recover from the assurer upon "sliip" the additional wages paid to the seamen, and the charges for provisions during this detention. Mr. J. Buller^ at the trial, was of opin- ion that the only damage proved, l)eing items for v/ages, provisions, and demur- rage during the detention, could not be recovered under tlie policy on "the ship" only. To make the underwriter liable there must be a loss of the ship, for the policy is on the body of the ship only j and if she arrives at her port of delivery, be the voyage ever so long, you cannot recover under such a policy. The plaintiff was nonsuited. The following Term the whole Court refused a rule made to set aside the nonsuit: Lord Mansfield saying, "There is no authority to show that on this policy tlio assured can recover for such a loss, but it is contrary to the constant practice. On a policy on a 'siiip,' sailors' (a) B. 2, c. 7, s. 8. (It) Rocc. d'Assecur. Not. 16. (c) Sit. after East. 1769. Parkins. 115. (/) Sit. after Hil. 1785. Id. 117. (a) 1 T. R. 127. UPON THE BODY, TACKLE, ETC. OF THE SHIP. 51 wages or provisions are never allowed ; tlie insurance is on the body of the ship, tackle, and furniture, not on tlic voyage or crew. In this it is admitted that there was no damage done to the ship, tackle, or furniture." Mr. J. B idler : "I take it to be perfectly well setded, that you cannot recover on a policy on 'the body of die ship' for seamen's wages or provisions." These are not the subject of the insurance. The case put *at the Bar proves the rule j p ^g^ -, for if the sliip had been detained in consequence of any injury L J which she had received in a storm, though the underwriter must have made good that damage, yet you could not have come upon him for the amount of wages and provisions during the time she was so repairing. Here the ship itself is safe, and the Court only look to the thing itself, which is the subject of insurance : and the wages and provisions are no part of the thing insured. In the case of Brough v. fPliitmore, (a) which was an action on a policy of insu- rance on an '■'■East India and China ship," and on the "tackle, ordnance, ammunition, artillery, and furniture of the ship," at the trial it appeared that whilst the ship was lying off Bank-said Island, in the river Canton, it became necessary to refit her, for whieli purpose the stores and provisions were taken out and "put into a warehouse, where they were destroyed by accidental fire. It was admitted that the policy covered all the articles but the provisions, Avhich were merely for die ship's crew. It was contended for the defendant, that the provisions were not protected by the insurance ; but one of the jury said, that it had been determined in Lord Mansfield's time, {h) that they came under the word " furniture," under which decision the merchants had since always acqui- esced. Tlie i)laintiffs obtained a verdict, which was afterwards upheld by the Court above, (c) Lord Kenyan said, "On the trial of this cause, I had nothing to guide my judgment on the construction of this instrument but the words of the policy; and when it was stated that "provisions" Avere included in the word "furniture," I confess I was somewhat at a loss to' know to what extent the underwriters were liable on words so indefinite as those which are used. But then I thought, and still continue to think, that the rule of law is to be given, not by merchants but by the Court, though when a question p ^g^ -, *arises on the construction of the words of an instrument which ^ J are in themselves ambiguous, it is a matter fairly within the province of those who alone act upon these instruments to declare the meaning of them ', and I remember it was said many years ago, that if Lombard street had not given a construcdon to policies of insurance, a declaration on a policy would have been bad on general demurrer, but that the uniform practice of merchants and under- writers had rendered them intelligible. The question here arises upon the meaning of the word "furniture." One of the jurymen said, and in that he is now confirmed, that according to the understandings of those who enter into these contracts, it includes the provisions for the use of die crew ; and this ship being at Canton, it became necessary to refit her, and take out all her goods, and land on this island, where the accident happened, by which these provi- sions, with die rest of the goods, were burned. Then, if these provisions be insured as part of the outfit of the ship, and Uiey were consumed by one of the perUs insured against, there is an end of the question : a loss has happened widiin die meaning of the policy, and the defendant is liable. If Uiis decision were to militate against any determinadon, or even obiter dictum of Lord Mansfield, I should have hesitated for some time before I delivered my opinion. But the case of Robertson v. Ewer is clearly distinguishable from the present : (a) 4 T. R. 206. (b) See Lord Mansfield's words in Robertson v. Ewer, I T. R. ante, p. 90. (c) The provisions had not been eaten but destroyed by a peril insured against "fire." 52 UPON THE BODY, TACKLE, ETC. OF THE SHIP. here the goods were consumed by an accident by fire on board the ship, (for the island was for this purpose equivalent to the ship) and within the meaning of the policy of insurance ; but in that case they were consumed by the negroes during the detention of the ship." Although it might have been hoped that Lord MansfiehV s decision in the preceding case of Fletcher v. Poole, supported as we have seen it to be by sub- sequent well considered important cases, would have set at rest the endeavour, on the part of the assured, or their advisers, any further attempt to review the reasonable nature of the law pronounced in that case ; we find, however, this r *Q^ ~l *doctrine of Lord Mansfield^ s disputed in a very recent case of L J Devaux v. Salvador, (a) after the question had laid at rest, and had not been mooted for many years. It was an action on a policy of insu- rance on "ship," in which the assured attempted to charge the underwriters with a sum of money expended in additional wages, paid to the crew whilst the ship was detained by the necessity of repairing certain damage, done by the perils of the sea, and likewise, with a sum of money which the ship insured had to pay another ship, with which there had been a collision, upon a setde- ment made by the Court of Admiralty, at Calcutta. Upon the trial, the Lord Chief Justice Denman told the jury that the underwriters were not liable for either of these items, and the defendant had a verdict. A motion was after- wards made for a rule to shew cause why the verdict should not be entered for the plaintiff for the two sums in question. The Court took time to consider the matter, and on a subsequent day, 30th Jan. 1836, Hil. Term, the judgment of the Court was delivered by Lord Denman, C. J. " This was amotion for a new trial in an action of assumpsit, tried before me at Guildhall, on the insu- rance of a 'ship' for loss by perils of the sea. The jury found a verdict according to my directions, excluding the expense for wages and provisions incurred from the time of her repairing damage sustained from a storm, and excluding also a sum of money Avhieh the owners had paid in consequence of some proceedings commenced in the Court of Admiralty, at Calcutta, in con- sequence of an accidental collision with another in the Hoogly river. The new trial was moved for on the ground, that both these heads of damage ought to have been taken into account by the jury. We think it clear, on authority, that the former item ought not to be allowed. As long ago as 1769, in Fletcher V. Poole, ib) the point was decided by Lord Mansfield at Nisi Prius. The r *QJ. "1 ^<^<^trine has been cited in the text books ever *since that period, L J and is expressly recognized by Buller, J. , in Robertson v. Ewer, [a) The facts of that case did not indeed require the doctrine, which is merely assumed in the argument of that learned Judge to illustrate his opinion on the case then before the Court. Mr. Maule, therefore, urged that the law rested on a single decision of Lord Mansfield at Nisi Prizes ; but when we consider the higli authority of that great master of insurance law, tliat that case was unquestioned,— that it received the sanction of so eminent a lawyer, who treats it as clear enough to lay the foundation of a principle from analogy ; when it is fully adopted in the works of distinguished writers on the subject ; and above all, when we find no trace of even a claim being set up inconsistent with it for nearly seventy years, though events must have afforded the opportunity many thousand of times, we think this point must be regarded as fully established, and that we should not be justified in casting any doubt upon it. The second point appears to be entirely new, which circumstance is not so strong an argu- ment against it as against the former claim, because the event is likely to have (a) 4 A. & E. 420. (6) Ante, p. 89. (a) Ante, p. 90. UPON THE BODY, TACKLE, ETC. OF THE SHIP. 53 been of much less frequent occurrence. But if we look for the principle on which Fletcher v. Poole was decided, it must obviously be that well- known maxim of our law, in jure non remota causa sed proxima spectatur. ' It were infinite,' says Bacon, [b) 'for the law to judge the causes of causes; therefore, it contcnteth itself with the immediate cause, and judgeth of acts by that, without looking to any farther degree.' Such must be understood to be the mutual intention of the parties to such contracts. Then how stands the fact } The ship insured is driven against another by stress of weadier 5 the injury which she thus sustains is admitted to be direct, and the underwriters are liable for it. But the collision causes the ship insured to do some damage to the other vessel : and whenever this effect is produced, both vessels being in fault, a positive rule of the *Court of Admiralty requires the damage p ^^- -, done to both ships to be added together, and the combined amount L J to be equally divided between the owners of the two. It turns out that the ship insured has done more damage than she has received, and is obliged to pay the owners of the other ship to some amount under the rule of the Court of Admi- ralty. But this is neither a necessary nor proximate effect of the perils of the 3ea, it grows out of an arbitrary provision in the law of nations, from views of general expediency, not as dictated by natural justice, nor (possibly) quite con- sistent witli it ; and can no more be charged on the underwriters than a penalty incurred by contravention of the revenue laws of any particular state, which was rendered inevitable by the perils insured against. We think, therefore, that no rule ought to be granted." Rule refused. Havinof now considered the law relating to what can or what cannot be re- covered from the underwriters on a policy on "the body, &c. of the ship :" we are now to consider, secondly, what is meant by the application of the term "good," which is used in the policy with regard to the ship, which is to be the " sul)ject of insurance," either itself, or which is to carry the goods which are to be the subject-matter. This term, as applying to the ship itself, can mean nothing more or less than the allegation that the ship (to be insured) is good enough, (that is to say of sufficient strength, stability and excellence in its con- struction and condition at the time when the risk of the underwriters is to com- mence upon it ;) and that it is in fact good and capable enough to perform the voyage intended, (reserving the possibility of the losses which must happen in consequence of the perils which the underwriters take upon themselves.) This term "good" is, in the phraseology of mercantile and nautical affairs, included in what the law means, when it is called the "seaworthiness of a vessel," and which we shall have occasion more particularly to specify in what it consists. It may, however, be prefaced, by saying, that as this declaration comes early in the body of the *policy, so is it of the first importance, and of r- ^f.^ -, the essence of this contract," that the vessel in question shall be at L J the time of executing the policy, or at least at the moment of the commence- ment of the underwriter's risk "good," that is, "seaworthy" for the "voyage insured." I shall first mention some authorities to shew how strongly the Judges have always spoken when the question of the "seaworthiness" of the ship at the time of the insurance has come into controversy. In the case of Carter v. Boehni, («) which was decided in Easter Term, 1766, Lord Mansfield, in dis- coursing upon the case then before him, affirms the law respecting tlie necessity of a ship being " seaworthy" when she is insured : for he says, "The utmost that can be contended for is, that the underwriters trusted that the fort being in (6) Maxims of the Law, p. 35, Law Tacts, (a) 3 Burr. 1913. 54 UPON THE BODY, TACKLE, ETC. OF THE SHIP. the condition in which it ought to be ; in like manner as it is taken for granted that a ship insured is 'seaworthy.'" And again, his Lordship, in a later case, where the same principle was much relied on, said, "By an implied warranty every ship insured must be tight, staunch and strong ; but it is sufficient if she be so at the time of her sailing. She may cease to be so in twenty hours after her departure, and yet the underwriter will continue liable." (b) The late Mr. J. Park, in his treatise, (c) says, "that the most material case (at the time he wrote) on this part of our subject was that of the Mills Frigate, which underwent a variety of discussion in several Courts, and in which all the principles on which this doctiine is founded were fully discussed." I shall take the liberty to copy what is said of this case from the learned Judge's trea- tise. He says : — " I have used my utmost endeavours to procure a copy of the opinions of the Judges upon that case, but they have been ineffectual ; r *q7 ~i therefore the reader must be satisfied Avith a full statement *of the >- -^ circumstances, as they appeared upon the demurrer to the evi- dence, (fl) "This was an action on a policy of insurance, lost or not lost, at and from the Leeward Islands to London, warranted to sail on or before the 26th of July, upon any kind of goods, wares, and merchandises ; and also upon the body, tackle, &c., of and in the good ship or vessel called the Mills Frigate, beginning the adventure on the goods from the loadinor thereof on board the said ship at 'SY. Kitfs, and upon the ship from her arrival at the Leeward Islands. The defendant undertakes to indemnify against the usual risks for a premium of 2l. 10s. per cent. The loss was described in the first count of the decla- ration, in these words: — 'That the said ship, after her departure from Nevis on her voyage, and during her said voyage, sailing and proceeding on the high seas by and through the force of winds and tempestuous weather, and by and through the mere perils and dangers of the seas, sprang divers leaks, and became very leaky, crippled, bulged, disjointed, split, and wholly lost.' In the second count the loss is alleged thus : — 'By and through the mere perils and dangers of the seas, and by the starting and loosening of one or more plank or planks of the said ship, and by accidentally springing one or more leak or leaks, the said ship became very leaky, crippled, &c., and totally unable to proceed on or perform the said voyage.' There were two other counts in the declaration upon a policy on freight, to recover from the under- writer the amount of his insurance upon that also ; and a fifth count for money, had and received to the plaintiff's use. The defendant pleaded the general issue, and paid the premiums into Court. r *Q8 "1 'J"his cause came on to be tried before Lord Chief Baron Parher, L J *and the defendant demurred to the evidence produced on the part of the plaintiff. The demurrer follows in these words :■ — 'Thereupon the said John and Thomas Mills (the plaintiffs) show in. evidence to the jury to prove and maintain the issue within-mentioned on their part, to wit, that the defendant underwrote the policy of insurance, and that the plaintiffs Avere interested to the amount as in the declaration is mentioned : that the ship in question was a French built ship, and known to be so to the defendant at the time he undeVwrote the said policy : that the timbers of French ships are (!j) Eden V. Parkinson, DoujtI. 732. (c) Page 160. («) Mills and anotlicr v. Roebuck, in the Exchequer. Before this action in the Exche- quer was lirouc;ht, an action upon the same policy had been tried in the Court of Common Pleas before Lord Camden, who directe- J measure which would be fully satisfactory to them, that he should submit the ship to be surveyed by all the captains then in the harbour, being six in num- ber; and told him that if they should report her to be fit for a voyage to London, they would then load her with sugars : that die captain did submit to 56 UPON THE BODY, TACKLE, ETC. OF THE SHIP. such survey, though it would have been for the interest of the said captains to report the sliip unfit for the voyage, as by that means they would have had an opportunity of gaining more freight and sooner : that on the 8th day of May, 1764, the said captains, after having surveyed her carefully, but without examining her bolts and spikes, which could not be done there, signed the fol- lowing report: — '■Nevis, May 8th, 1764. At the request of Captain George Finch, of the ship Mills Frigate, we, the subscribers, did repair on board the said ship, and, after due examination, it did appear to us that the occasion of the ship's making more water than usual on her voyage from London to this place, was occasioned by some neglect in caulking the said ship, which may very easily be made tight, the said ship otherwise appearing to us to be strong and sound; and when caulked, we are of opinion, will be fully sufficient to carry a cargo of sugars to London. John Shepherd, &c. ' That afterwards the ship was caulked, according to the said report, and that thereupon the planters sent their sugars on board, and the ship Avas soon loaded with about three hundred and seventy hogsheads of sugar : that during the time of her loading, and until and at the time of her sailing, which was about two months, the ship continued tight, appeared to be in good condition, and made no more water than the best ships usually do, and are expected to do : that the ship sailed from Nevis, on the 26lh day of July, 1764, about eight o'clock in the evening, and the next day, about four o'clock in the afternoon, without any bad weather, or extraordinary swell of the sea, she sprang a leak, and the captain was obliged to bear away for *S'/. Christopher^ s, where he arrived on r *101 1 ^^^ '^ July: that on his arrival there, he got the ship unloaded, L -"to *see what was the matter with her, when it appeared that she had started a plank : that he thereupon applied to the Judge of the Court of Vice Admiralty for a warrant to survey the ship, and a warrant Avas granted to four captains and two ship -carpenters, or any three of tliem ; four of whom did, according to such warrant, survey the said ship, and did report, that she was unfit to proceed on her voyage, without being thoroughly repaired, and that the expense of so repairing her there would amount to more than the value of the ship and freight ; and she was, therefore, condemned by the said Court as unfit for the said voyage : that some of the iron bolts and spikes with which the timbers of the ship in question, like other French built ships, were fastened, were broken in the plank that was so started, which the captain and the said surveyors felt by passing up their hands between the plank and the ship, and which appeared upon farther opening tlie ends of the plank, and that the said plank was started from one end to the other : that it was owing to the said bolts and spikes being grown rusty and decayed, as then appeared to the captain and surveyors, that such plank started : that he believed the surveyors who condemned her thought the same ; wherefore, and supposing the other bolts and spikes in the ship were also grown rusty and decayed, thougli that could not be known for certain, without ripping off her planks and making a more strict examination, the surveyors made their said report of condemnation : that the said plank was not taken off, nor could it be, without sinking the ship, which has not yet been broken up, but continues at St. Chnstopher^ s as a hulk : that on the aforesaid account it was then concluded, and is now believed by the captain, that the said ship was not fit for the insured voyage home at the time she so sailed from Nevis for I^ondon, though, to all outward appear- ance, she was a very good ship, and, as he then believed, proper for the voy- age; and such a ship as he, from her outward appearance, should have had no objection to sail in again; but had he known the decayed condition of her said bolts and spikes, before he set sail on his homeward-bound voyage, he r *\(\9 ~\ wo"''l '^'^'^ \y-\yQ ventured his life in her: that there *is no dock, L -^ nor scarce any materials for repairing ships at St. Christopher'* Sy UPON THE BODY, TACKLE, ETC. OF THE SHIP. 57 nor could she sail to any other phice to be repaired ; and that if tliis misfortune had happened in North Jlmerica or England, where tliore are proper docks and materials, she might have been repaired for three or four hundred poimds : that while the said ship was first at St. Christopher' s, before she had taken in her cargo, namely, on the 23d of Jlpril, 1764, the captain Avrotc the following letter to the plaintiffs : — *^St. Christopher's, ^pril 2S, 1764. "Gentlemen, "I take the first opportunity of acquainting you, that I arrived iit Nevis, after a most dismal passage, on the first instant. On the sixth of March, at day-break, I made the islands. Deserts, distant about four leagues, ran down for Madeira, with a fresh gale at E. S. E. till four in the afternoon, when being within a mile off the sliore, and judging about five or six miles off Fen- chall Road, a very hard and dark squall took us suddenly with such violence, that I was obliged to clear off the land under the courses. It was excessively hazy the whole evening after, that one could hardly see the ship's length ; so that it would have been Uie greatest imprudence to have run the risk of over- shooting our port, or running ashore. The gale increased, and, in the night, came round to the N. E. and the ship strained so much by the pressure of sail we were obliged to carry on her in that great sea, that it was with the utmost difficulty we could keep her free. On the eighth, at nine in the morning, reckoning myself nineteen leagues to leeward of Madeira, our ship so loosened that we could not carry sail upon a wind ; and seeing no probability of the wind shifting or abating enough to give us a chance of beating up, bore away for Nevis, judging it better for the preservation of the whole than to run any hazard in endeavouring for the Canaries in our weak, leaky, and distressed condition. I have consulted with Mr. Cottle, the counsellor here, who advises me to sell tlie flour and lime at public vendue, and to carry the iron ^ ^, „„ -■ *hoops, &c. , back to England. As the ship's complaint has been >- -^ chiefly in her upper works, I am obliged to have her new nailed from the wail upwards ; and hope you will find that what repairs are necessary to be made here, are conducted with all the frugality circumstances will admit of." Tliat the plaintiffs received this letter in London on the 13th day of June, 1764, and, a day or two afterwards, gave it to Matthew Towgood, an insurance broker, to get 1,000/. insured on the freight home for tlie use of the owners, and 250/. on their fourth part of the said ship : that the said Towgood first showed the policy in question and the letter to the said George Hayley, on the 19th of June, 1764, who, after reading over the letter, asked him Avhat interest he had to insure; to which the broker answered, ship, freight, and cargo; and that he might write which he pleased; that thereupon the said George Hayley said lie would underwrite the ship, saying she would come home safe enough, notwithstanding the damage which the said letter imported she had received, as it was a summer-voyage ; but that she would very likely damage her cargo : that the said George Hayley was going to underwrite the said policy for 300/. on the said ship, and had wrote the figure three : but on the said Matthew Tow- good's telling him, he was a bold man to write three hundred pounds after read- ing the said letter, the said George Hayley struck out the figure three, and converted it into a two, and accordingly underwrote the said policy for die sum of two hundred pounds on the said ship : that the said Matthew Towgood showed the said letter to the said defendant Roebuck, and all the other under- writers on the said policy, before they underwrote the same; and the said defendant says, that the evidence aforesaid, in manner and form aforesaid, shown by the plaintiffs to the jury, is not sufficient in law to maintain the issue within joined on the part of the said plaintiffs ; and that he the defendant, to the evidence aforesaid, hath no necessity, nor by the law of the land is 58 UPON THE BODY, TACKLE, ETC. OF THE SHIP. r *in4. 1 obliged to answer. Wherefore he prays judgment, *and that the L J jury may be discharged from giving any verdict upon the issue. This demurrer was argued in the Court of Exchequer, and judgment Avas there given in favour of the assured; and of what fell from the Judges on that occasion, I have been only able to procure this account, "diat judgment was given for the plaintiffs, not upon the points aigued (namely, that it was essen- tial that the ship should be seaworthy,) the Court being as to those of opinion with the underwriters ; but because the evidence did not, as the Court thought, precisely prove that the ship was not seaworthy, at the time of the insurance taking place, on the first of April, 1764, on her arrival at Nevis, but only that she was so at the time of her sailing, on the 26th of July." But the Court unequivocally declared, that a ship, that is not at the commencement of the insurance in fit condition to perform her voyage, is not a fit subject of insur- ance. Upon this judgment a writ of error was brought in the Exchequer- chamber, which was argued before Lord Mansfield and Lord Chief Justice TVilmof, who wei-e to report their opinions thereon to the Lord Chancellor ; and the judgment of the Court below was ultimately affirmed. Whether the judgment was so affirmed upon the specific ground taken in the Court of Ex- chequer, or upon some difficulty arising out of the form of proceeding, (being upon a demurrer to evidence) (a) does not appear: but whether upon the one ground, or the other, there is no doubt, though judgment was given for the plaintiffs, that the principles of insurance law upon the subject of seaworthi- ness, and the doctrine of implied warranties or conditions, have always been r *ini^ "1 *considered as unalterably fixed and ascertained since that period, ^ J although that doctrine was not then for the first time stated in our English Courts, and was certainly long before known in the law of insurance in other parts of Europe. It is unfortunate that from the circumstance of there being no printed report of this case, and from the practice of the two Chief Justices reporting their opinion in private, the grounds of that opinion cannot now be obtained: but it cannot be disputed from the opinions of Lord Mans- field, and other Judges, both before that time and since, that the principles laid down in the beginning of this chapter are clearly established as the law of England. The principles of the law of this country on this head of the law of marine insurance, so declared and laid down in the above case, have been confirmed and established by numerous subsequent, and likewise more modern decisions. In a case of Lee v. Beach, [a] tlie plaintiff had purchased a ship, and after having her surveyed by proper judges, he sent her into the dock, and there had her fully repaired, and the ship-builder was ready to swear, that he effectually repaired her, as he thought, having done all that was required to make her a "good" ship ; she then was taken into government service, on which occasion she was, as usual, surveyed by the persons employed for the purpose. She sailed out of the Thames, and arrived at Portsmouth, but being very leaky, with bad weather, the Admiral ordered her to go in and undergo a survey there. This was done, and it was found, on opening her, that some timbers near her keel, were so bad, that she was condemned as insufficient to proceed. The {a) This judgment probably proceeded upon the ground that the assurer, by demurring to the evidence given on behalf of the plaintiffs, had admitted upon record the truth of every fact and every conclusion, which, upon the evidence staled, might have been found by the jury in favour of tiic party who adduced it; but yet even upon the facts stated it would seem dilhcult to reconcile the verdict with the true princi[)les of the law of insurance. See the opinion of Mr. J. Butler, in Cockscdgc v. Fanshaw, Doug. 134, and of C. J. Eyre, in the case of Gibson v. Hunter, 2 II. Bl. 205. (^i) Sit. at Guild, after Mich. 1762. Park Ins. 4C8. UPON THE BODY, TACKLE, ETC. OF THE SHIP. '59 plaintiff having insured her, applied to the underwriters for the loss ; the defend- ant was one ; and the plaintiff insisted that he had done evcryUiing in his power to send her out, sufficient and good, and that this defect was a latent cause not known to him, or discovered when she was surveyed, or in the dock repairing. Lord Mansfield said, "that *it appeared that the ship ^ sinp -i had died a natural death, and had received her death hlow before L J she was insured ; and, however innocent the assured was, and however cau- tiously he had acted, the underwriter was equally innocent ; and the implied warranty must and ought to have its effect, and the plaintiff must make the best of a bad bargain." The plaintiff was nonsuited. And in the case of Munro v. Vandam, (a) it was held that, if a ship sail upon a voyage, and in a day or two become leaky and founder, or is obliged to return to port without any storm, or visible or adequate cause to produce such an effect, the presumption is, that she was not "seaworthy" when she sailed, and that the jury upon the plaintiff's own case may draw such a conclusion. And on an appeal from Scotland, in the case of JVatson v. Clarke, [b) in the House of Lords, it was said by two of their Lordships, "That where the ina- bility of the ship to perform her voyage, becomes evident immediately after leaving the port, or in a short time after the risk commences, without any apparent cause of injury, the presumption is, that this inability has arisen from causes existing before her setting sail on her intended voyage, and that the ship was not dien seaworthy, and the onus probandi in such a case is thrown upon the assured, to shew that the inability arose from causes subsequent to com- mencement of the voyage, and attaching of the risk, (c) Lord Eldon, in giving judgment in the case of Douglas and others v. Scougall and others, (rf) says, "This is a mere question of fact whether the ship, when she sailed from Lei th to Pidon was seaworthy, or well furnished, tight, staunch and strong for the voyage insured. I have often had occasion to observe here that there is nothing in matters of insurance of more importance than the implied warranty that a ship is seaworthy when she sails upon *the voyage insured. It is ^ sin^ -i not necessary to inquire whether the owner acted honestly or fairly ■- J in the transaction: for it is clear law that, however just or honest the inten- tions and conduct of the owner may be, if he is mistaken in the fact, and the vessel, in fact, be not seaworthy, the underwriter is not liable." His Lord- ship observed, "that the injury sustained by the vessel appeared to be the effect of decay, and not of sea-damage, that the survey made after the ship's return differed from the one made before her departure ', that when the original survey was made, the outer skin or coating was not taken off, and that the captain was not fully examined upon tlie trial ; and he declared that it was perfecdy mani- fest, and proved to his entire satisfaction, that the vessel was not seaworthy for the voyage when she sailed, whatever might have been the opinion of the owners and carpenters who repaired her." And in another case of Wilkie v. Qeddes, [a) in the House of Lords, his Lordship stated that, under this implied ivarranty, it is not only necessary that the hull of the vessel be tight, &c., but that the ship be furnished with ground tackling sufficient to encounter the ordinaiy perils of the sea 5 and, therefore, when the best bower anchor, and the cable of the small bower anchor were found defective, the ship was not seaworthy. (fl) Sit. before Lord Kenyon at Guild, after Mich. 1794. (Z») 1 Dow. 336. (c) See also Parker v. Potts, 2 Dow. 23. Watt v. Morris, 1 Dow. 32. Foster v. Steele, 5 Scott, 25; 3 B. N. C. 892. (rf) 4 Dow. 269. (a) 3 Dow. 57. 60 UPON THE BODY, TACKLE, ETC. OF THE SHIP. So in the case of Oliver v. Coivley, [h) wliich was an action brought by an innocent shipper of goods (and no part-owner of the ship) against the under- writer, and the poUcy was on "goods in the ^my and Laetitia, at and from Montserrat to London ;" and it appeared that the ship sailed 26th July, and the next day, without bad weather, she became very leaky, and obliged to run for St. Thomases, one of the Virgin Islands, where she was unloaded, and the goods, being much damaged, were sold ; and it could not but be allowed on all sides that the ship was not seaworthy to take the voyage insured ; and it r *ins 1 ^^'^^ admitted by the defendant, that the *shipper of the goods was L J a stranger to the ship when the goods were shipped. The plain- tiff was nonsuited ; Lord Mansfield saying, "that the implied warranty could not be dispensed with in any case ; that it was a point of law, and if the plain- tiff's counsel thought there was any ground to go upon, he would save the point ; but the counsel declined this, being satisfied that the case was clear against them." The plaintiff was nonsuited. In a later case, the law respecting the implied warranty of " seaworthiness*^ was clearly laid down, and the reason of it shown by Mr. J. Lawrence. It was the case of Christie v. Secretan. (a) The learned Judge said : — " I also doubt whether there is any analogy between a case like the present and cases where there is implied warranty of seaworthiness. The latter is implied from the nature of a contract of insurance. The consideration of an insurance is paid, in order that the owner of a ship, which is capable of performing her voyage, may be indemnified against certain contingencies ; and it supposes the possibility of the underwriters gaining the premium. But if the ship be inca- pable of performing the voyage, there is no possibility of the underwriters gaining the premium ; and, if the consideration fails, the obligation fails. In the case of the Mills Frigate, it was said that the ship's being capable of per- forming the voyage was the substratum of the contract of insurance. So if a ship sail, without a sufficient crew, she is incapable of performing the voyage." But it is, however, to be observed, that when it is said that a ship must be perfectly seaworthy, and equipped for the voyage, at the time of the commence- ment of the risk, this is nevertheless to be taken with a reference to her situa- tion and condition in different periods of the voyage to which the risk attaches. For instance, if the policy attaches whilst a vessel is in harbour, taking in her r *inQ "I ^"^^o^' ^^ never can be required that she should be in that complete L J *state of repair and of equipment, with regard to her crew and furniture, as would be necessary when she leaves the harbour and regularly sets sail on her voyage. Again, if the character of the voyage be such that at dif- ferent points of it a difference in the number of her crew or state of equipment would, in the usual course of navigation, take place, all that can be required of the assured is, that at those different points and divisions in the voyage the ship shall be respectively in such a state and condition, with regard to her repairs, furniture, and crew, as is commensurate with her then risk, or, which amounts to the same thing, as is in conformity with the acknowledged practice and mode of navigation, (a) If, for instance, it be usual for the master of a vessel to take in a pilot at a particular place, and that the pilot should quit the vessel at another, if the loss occurs either before the ship's arrival at the spot where the pilot should have been taken in, or after the period when it is customary that he shoidd resign the ship again into the command of the master, the under- writer cannot seek to discharge himself on the ground of the absence of the (ti) Sit at Guild, after Trin. Term, 176.5. Park Ins. 470. («) 8T. R. 192. (a) See Graham v. Barras, 5 B. & Ad. 1011. UPON THE BODY, TACKLE, ETC. OF THE SHIP. 61 pilot, because at one particular point in the voyage his presence constituted an essential ingredient in the seaworthiness of the ship. These general principles relating to this part of the subject will be found to be fully supported by tlie following decisions : — Tims in the case of Forbes and another v. TVihon^ {b) Avhere a policy of insurance was effected on the ship Henry, "at and from Liverpool to tlie coast of Africa,'''' it appeared that at the time the policy was made the ship was not in a condition to go to sea, but was, in fact, at the time, undergoing very mate- rial repairs; and it was contended by the underwriters that, as the risk was *'at" as well as "from," if the ship was not seaworthy, from whatever cause, when the policy was subscribed, it was void ; and that any repairs done after- wards, so as to make her completely seaworthy at the *time of p siin -i sailing, would not cure that defect. But Lord Kenyon was of L J opinion that, under the words " at and from," it is sufficient if the ship, at the time of sailing, be "seaworthy;" for, from the nature of the thing, the ship while at the place probably must be undergoing some repair. The plaintiffs had a verdict, and no motion was made to set it aside, (a) And in a later case of Hibbert and others v. Martin, (b) ■where the case of Forbes v. Wilson was quoted, Lord Ellenborough saicl, "I agree with the doctrine of that case : it is quite sufficient if the state of the ship be commen- surate to her then risk. There may be a seaworthiness sufficient while in har- bour, and there is a state of seaworthiness for the voyage, (c) And it was held in the Common Pleas, in the case of Annan v. Wood- man, ((/) tliat a ship much out of repair may be sufficiently seaworthy for a harbour, and is protected under the word "«/;" and as full complement of sailors is not necessary for her in harbour, she does not cease to be seaworthy for want of a crew, till she sails out of harbour without a sufficient crew. And it was held that if a ship, sufficiently seaworthy in port, sail without being rendered seaworthy for the voyage, yet by the word "at" in the policy, the risk attached, and that, therefore there could be no return of premium, (c) The vessel when she sails from port, must be provided with a suificient crew, [f) and with a captain of competent skill for the voyage. And where there was an express warranty, in a case of Tail v. Levy, (g) that the ship should not go higher up the Mediterranean than Tarragona, but the captain was *so ignorant of the coast, as to mistake Barcelona (which lies p ^, . . -, further up the Mediterranean) for Tarragona, and on entering the '- -■ former port was captured ; it was held that the underwriters were discharged, on the ground of the want of competent skill in the captain. But where there is an admission by assurers, that a vessel is to be taken as seaworthy, they are bound by that admission. In a case of Proctor and others v. Thorburne and others, before Lord Den- man, at the Liverpool Summer Assizes, 1842, (a) where there was a clause in the policy "that the vessel should be taken to be seaworthy." His Lordship held that the plaintiffs were entitled to the verdict, unless the jury were of {b) Sit. after East. Term, 1800. Tark Ins. 472. (a) See Smith v. SurriJge, 4 Rep. 25, where Lord Kenyon held the same opinion. {b) Guildhall, M. T. 1808. Park Ins. 473. (c) The commencement of the voyage means "sailing from port." Graham v. Barras, 5 B. & Ad. ton. (//) 3 Taunt. 399. (e) See Hucks v. Thornton, 1 Holt, 30. (/) Clifford V. Hunter, M. &c M. 103. Forshaw v. Chabert, 3 B. & B. 1.58. Per J. Bayley, in Busk & K. Ex. Co. 2 B. & A. 83. Walker v. Maitland, 5 B. & A. 175. Riiisdale v. Newnham, 3 M. & S. 456. {g) 14 East, 481. (o) MS. penes me. G2 UPON THE BODY, TACKLE, ETC. OF THE SHIP opinion, that the sliip was at the time of saiUng unseaworthy within the know- ledge of tine assured. This want of knowledge, we have seen, in ordinary cases would be no answer, if the ship was in fact not seaworthy. And, on the other hand, in the case of Steivart v. Tflhon, {b) where the rules of an insurance association provided, that "the managing underwi-iters should survey each ship insured, in hull and materials, every year, without distinction, and order such stores and repairs as they might deem necessary, which stores must be got and repairs done, on due notice being given, other- wise the ship should not be insured." The policies were all to be time poli- cies for a year : held that the effect of not complying with an order of the manacfino- underwriters was, that the ship must be considered unseaworthy, and the policy of assurance Avhich had before been made on her, void. In the recent case, also, of Parfitt v. Thompson and others^ (c) which was an action on a policy of insurance for a total loss, the declaration stated that the defendants agreed that tlie ship should be, and was thereby allowed to be, seawortliy in her hull, tackle, and materials for the voyage ; the assured declar- r «iio n i"?' that to the best of their belief, and according to *their know- L J ledge and information, the ship, at the time of the insurance, was in all respects seaworthy for the voyage. It then alleged the making of the policy, and that during die voyage, by stormy winds and tempestuous weather, and by the force and violence of the winds and waves, the ship became leaky, strained, riven, and damaged, insomuch that, by means thereof, it became neces- sary for her preservation, for her to sail to the nearest port of safety : that she accordingly sailed to the nearest port of safety, to wit, the harbour of Gambia; that on her arrival at Gambia she was unfit to prosecute her voyage without being repaired and refitted; that she Avas found to be unseaworthy, and unfit to prosecute her voyage, unless great repairs were done upon her ; that such repairs could not be done at Gambia; that it was not possible to obtain any repairs sufficient to enable her to proceed on her voyage, or to proceed to any other port to be repaired ; that it became expedient and necessary to abandon the voyage and to sell the ship ; and that the ship was sold, by means of which premises the voyage was not performed, and the vessel wholly lost to the plaintiff: held that, "whether the loss of the vessel was occasioned by unsea- Avorthiness, or by the perils of the sea, the defendants were bound by their admission, and could not dispute the seaworthiness." Held, also, on motion, "that it sufficiently appeared by the allegations in the declaration, that the loss of the vessel was occasioned by the perils of the sea." These cases show that it is not unusual with associations of insurance, either to bind the underwriters to certain admissions, or to make the merchants adhere to certain rules : they are quite at liberty to do this, but they must bear the consequences of such stipulations. Private underwriters do not often, if at all, depart from the com- mon form of the policy, except in the liberties and privileges which may suit the assured: as liberty to touch, to stay and trade, &c., in different forms; it is frequent, also, for the underwriters to insure the goods to the ship from the shore, which is not the usual form in the ordinary policy. "1 *And in a case of Samuel v. Royal Exchange Assurance Com- L '1^^ J pany, (a) tried l)efore Lojd Tenferden at the London Sittings after Trin. Term, 1827, where the loss happened to the ship in entering the dock at Dcplford^ his Lordship told the jury, that one question of fact was, Avhether persons of competent skill were employed to carry the vessel into the dock.^ If persons of competent skill were not on board, the defendants were entitled to the verdict. (b) 12 M. & W. 11. (c) 13 M. & W. 392. (a) 8 13. &C. 119. UPON THE BODY, TACKLE, ETC. OF THE SHIP. 63 The captain, also, is, by the position of consequence in which he is placed by the owners, ancl by the coniulence reposed in him by them, frequently called upon to exercise his judgment in cases of loss and insurmountable diffi- culties, and to act, according to his discretion, in tlie best manner for the benefit of all concerned. In the case of Milks v. Fletcher, (b) which was an action on a policy of insurance on "a ship and her freicrjit," the plaintiff went for a total loss. The defendant insisted that he was only entitled to recover for an average loss. The jury found a verdict for a total loss. The facts were that the ship and goods were captured on the 23d of J/«y, by two ^^merican privateers, who took the captain, and all the crew, and part of the cargo (sugar) out of her; the rigging was also taken away. She was afterwards retaken, and carried into Neiv York, where the captain arrived on the 23rd of June, and taking possession of her, found that part of what was left of the cargo was washed overboard ; that fifty-seven hogsheads of what remained were damaged ; and that the ship was leaky, and could not be repaired without unloading her entirely. Under these and other disadvantageous circumstances, he consulted with his friends at A^ew Fork, and resolved, upon their opinion and his own. to sell the ship and cargo, as the most prudent step for tlie interests of his employers. The cargo was sold, and paid for. The ship was also contracted for, but the person who had agreed to buy her ran away, and the captain left her, and returned to England *in the February following, and gave the plaintifl' notice of what r *ii4 -i had been done, which was the first notice he received of it; and L J the plaintiff immediately claimed for a total loss, and offered to abandon. Lord Mansfield, at the trial, told the jury, that if they were satisfied that the captain had done what was best for the benefit of all concerned, they must find as for a total loss, which they accordingly did. Upon a motion for a new trial, the unanimous opinion of the Court was delivered by Lord Mansfield, who said, in the course of the judgment, "when the assured first had notice, and offered to abandon, (which was when the captain came to England) and when the ship was brought to New York, it was still a total loss. The only answer the defendant makes, or can make to this is, that the loss was total indeed, but that the captain made it so by his improper conduct ; for that on taking possession of the ship the loss became partial, and that he ought to have pursued the voy- age. But is this defence true.^ The captain, when he came to New York, had no express order, but he had an implied authority, from both sides, to do what was fit and right to be done, as neither of them had agents in the place ; and whatever it was right for him to have done, if it had been his own ship and cargo, the underwriters must answer for the consequences of it, because this was within his contract of indemnity." In the case of Shipton v. Thornton, [a] Lord Denman says, 'nhat it must never be forgotten, that the master acts in a double capacity — as agent to the owners as to the ship and freight, and agent to the merchant as to the goods : these interests may sometimes conflict with each other, and from that circum- stance may have arisen the difiiculty of defining the master's duty, under all circumstances, in any but very general terms. The case now put supposes an inability to complete the contract in its terms in another bottom, and there - fore the owner's right to tranship will be at an end ; but still, all circumstances considered, it may be greatly for tlie *benefit of the freighter that p 'i\\^ ~| the goods should be forwarded to their destination, even at an ^ -^ increased rate of freight ; and, if so, it will be the duty of the master, as his (6) Dough. 231. (a) 9 A. & E. 314. Vol. VII. —F 6i UPON THE BODY, TACKLE, ETC. OF THE SHIP agent, to do so. In such a case, the freighter will be bound by the act of his agent, and liable for the increased freight." It is likcAvise required by law (a) that the master should take on board a pilot at those points in the voyage when the law bids him. Pilots are estab- lished at different places in England, by tlie autliority of various charters and acts of Parliament; and, in general, the master of a ship engaged in a foreign trade must place tlie ship under the charge of such a pdot, both in the outward and homeward voyage, within the limits of every such establishment, [b) There is a case of Law v, HoUingsivorfh, (c) of which only a brief notice will be requisite, inasmuch as the decision in that case is considered to be overruled by more modern authorities ; the reader may, however, refer to the full report of the case, and judge for himself. The facts were simply these : A captain of a vessel entering the Thames took on board a pilot at Orfordyiess, who again quitted her at Halftvay Reach; after which, and before she came to her moorings higher up the river, the accident happened which occasioned the loss. The captain, also, had left the vessel before the time of the actual loss. It further appeared that the pilot was not properly qualified at the time, accord- ing to the provisions of 5 Geo. 2, c. 20, for the regulations of pilots on the River Thames; but it did not appear that this fact was known to the captain j and the pilot had since received his regular qualification. In the case of Dixon v. Sadler, (d) which we shall have to refer to at length r *llfi 1 ^" ^^^ course of this treatise, Parke, B., *who delivered the judg- L J ment of that case, after deliberation by the Court of Exchequer, sa^'s (on the subject of the case of Law v. HoUingsworth :) — "The only case which appears to be at variance with the principle now laid down is the case of Laiv V. Hollingsivorfh, in which the fact of the pilot who had been taken on board for the navigation of the River Thames having quitted it before he ought, (under what circumstances is not distincdy stated) appears to have been held to have vitiated the policy. In this respect we cannot help thinking that the case must be considered as having been overruled by the modern authorities above alluded to. The great principle established Iiy the more recent decisions is, that if the vessel's crew and equipments be originally suflicient the assured has done all he contracted to do, and is not responsible for the subsequent defi- ciency occasioned by any neglect or misconduct of the master or crew, or of the pilot as a temporary master. And this principle prevents many nice and difficult inquiries, and causes a more complete indemnity to the assured, which is the object of the contract of insurance." When tliis case of JJixon v. Sadler was brought into a Court of Error, (a) Lord Chief Justice Tindcd, who delivered the judgment, says, at the con- clusion of it, "But, without entering into a futher discussion of the principle, we think, upon the later authorities, the rule is established, that there is no implied ivarranty, on the part of the assured, for the continuance of the sea- worthiness of the vessel, or for the performance of their duty by the master and cretv, during the u'holc course of the voyage. 'J'he case of Laic v. Hol- lingsworth must be allowed to bear against the principle so laid duwn by those later authorities. The ground of decision in that case appears to have been, that there was no pilot on board during the time the ship was sailing up the (ft) See the case of "The Protector," 1 Dr. W. Rob. Ad. Rep. N. S. A^\ and see the provisions of the Genera! Pilot Act, 6 Geo. 4, c. 12.'3 ; al.so the ca.ses of M'Into.sh v. Shide, 6 B. & C. 6.57; Bcnnct v. Moita, 7 'J'aunt. 258; Lucey v. Ingrain, 6 M. «Sc W. 302; Ritchie v. Bousfield, 7 Taunt. 30'J. (/y) !^ee Abbott on Shipping, 6th edit. p. 173. (c) 7 T. R. 160. (r/) 5 M. & W. p. 415. (a) 8 M. «fc W. 805. TIPON THE BODY, TACKLE, ETC. OF THE SHIP. 65 Thames, wliich was required by 5 Geo. 2, and that there was an implied duty on the part of the assured that there sliouhl be such *a person, p *-\\i -^ This, at least, appears to be the ground of Lord Kenyoii's judi^- L -I ment, although, rertaiiily, the other two Judges seemed to have considered that it was a loss arising from an act of gross negligence. The decision may be maintainable on the ground of an implied warranty to observe the positive requisitions of an act of Parliament; but if it is to be taken as an authority, that the implied warranty of the assured extends to acts of negligence on the part of the master and crew throughout the voyage, we think it cannot be sup- ported against the weight of the later authorities. ''This case of Laiv v. Hollins^sworth, appears not to apply to cases of the neglect of the master or pilot, if one has come on board, and the provisions of the General Pilot Act on this subject, seem to have done little more than to have confirmed and strengthened this principle of law. The pilot, when in charge of the vessel, stands in tlie place of the master; and the underwriters are no more discharged by his neglect than they are by the neglect of the mas- ter. In the case of dirruthers v. Sydebothum, (a) it was held, that where the ship was stranded by the neglect and fault of the pilot, the underwriters were not discharged; and the same principle one would naturally suppose Mould apply to the case where the pilot, having been once on board, leaves l!ie ship sooner than he ought to do, either wilfully or by neglect. Now, bear- ing the provisions of the General Pilot Act in mind, let us see what would be the effect on the contract of insurance, if in any case where a pilot is required by law, or by the practice of navigation in any particular place, to take charge of the vessel, and no pilot can be obtained or ever comes on board. There can be no doubt that it is the duty of the master to use all possible endeavour to comply with this rule ; and when he is leaving a port and has the means in his power, it would seem to be imperative on him not to sail without one. (6) But what is he to do if in approaching a port, he finds it impossible, either on account of the violence of the sea, *or any other insurmountable p ^,jj. -, cause to procure one.^ Why in such a case the master must act to •- -^ the best of his judgment- — and supposing him to be a captain of competent skill, the case will fall within the plea of necessity, which in extremities in matters relating to insurances have always been allowed. And by the express provisions of the act above referred to, it is declared, that the underwriters shall not be discharged by reason of no pilot being on board, 'unless it shall be proved that the want of a pilot, or of a duly qualified pilot, shall have arisen from any refusal, or to take a pilot, or a duly qualified pilot on board, or for the wilfid neglect of the master of such a vessel, in not heaving to, or using all practicable means consistenUy with the safety of such ship or vessel, for the purpose of taking on board any pilot, who shall be ready and offer to take charge of such ship or vessel.' " (o) And this enactment is in direct conformity with the principles of law laid down by Lord Tenterden, in the case of Fhil- lips V. Headhtm, {h) which was an action upon a policy of assurance, "at and from Liverpool to the ship's port or ports of discharge in Sierra Leone, and during her stay there, and from thence to her port or ports of discharge in the United Kingdom.^'' At the trial before Bayley, .T., at the Summer Assizes for the county of lAincaster, 1829, it appeared that the ship sailed on the voyage insured, and arrived at three o'clock in the evening of the 30th January, oif the river Sierra (a) 4 M. & S. 77. (6) Per Lord Tenterden, in Phillips v. Headlam, 2 B. & Ad. 383. (a) 6 Geo. 4, c. 12.5, s. 56. (6) 2 B. & Ad. 383. 66 UPON THE BODY, TACKLE, ETC. OF THE SHIP. Leone^ where there is a regular establishment of pilots; that the captain then hoisted a signal for a pilot, and at ten o'clock no pilot having come on board, the captain attempted to enter the river, and in doing so, the vessel struck the ground and was lost. It was proved that it was usual for vessels either coming out or going into the river, to take a pilot, and the defendant's evidence went to show, that it was not necessary or proper that the captain should enter the river without one. Bayley^ J., told the jury to find for the plaintifl', if they r ^-iTQ -| thought that the captain in entering the harbour without a *pilot, L ""-^l^ J did what a prudent man would do under the circumstances : other- wise for the defendant. The jury having found for the plaintiff, a rule nisi was obtained, on the ground that the verdict was against evidence. Lord Tm- terden, C. J., "The rule for a new trial must be discharged. If the loss happened even in consequence of the mistake of the master, (provided he were a person of competent skill at the time when the policy was made) the under- writers are chargeable. The case was, therefore, left to the jury most favour- ably for the defendant; and, at all events, he will not be entitled to a new trial, unless it be on the ground that the master was bound by law not to enter the harbour without a pilot. It may be conceived that a vessel coming out of a harbour must have a pilot, because the master always has it in his power to procure one ; but it seems to me that if the master of a vessel, arriving ofT a port, use due diligence to obtain a pilot he does all that is required by law. Here the vessel arrived off Sierra Leone about three in the afternoon : the captain hoisted signals for a pilot, and at ten no pilot had come off. It seems to me that upon the evidence, the master did use due diligence to obtain a pilot, and having done so, it was competent to him to exercise his discretion, whether it was l)etter to run the risk of entering the harbour without one, or to wait for the following day for a pilot. Here, acting to the best of his judgment, he attempted to enter without one, and in doing so the vessel Avas lost : and I think the underwriters are liable for a loss happening under these circum- stances." Parke, J. — "The rule of law is, that the assured is bound to have the ship seaworthy at the commencement of the risk. He is bound, therefore, to have a sufficient crew, and a master of competent skill and ability, .to navi- gate her, at the commencement of the voyage : and if she sail from a port where there is an establishment of pilots, and the nature of the navigation requires one, the master must take one. So, if in the course of her voyage, the master arrives at a port or place where a pilot is necessary, he ought not to dismiss him before the necessity has ceased. But if a vessel sails to a port -190 1 ""'l^*^'"'^ ^'^^ establishment is such, that it is not always possible to L 1'^^ J procure the assistance of a pilot before the vessel enters into the difficult part of the navigation — then as the law compels no one to perform impossibilities, all it can require in such a case is, tliat the master use all rea- sonable efforts to obtain one. In another action on this policy, tried before me at Lancaster, at the Spring Assizes, 1830, 1 left two questions to the jury; first, whether by the law of usage of Sierre Leone, a pilot was required? and secondly, whetlier the captain made all reasonable efibrts to obtain one, and not beino- able to do so, conducted himself as a man of reasonable care, prudence, and skill, ought to have done.? The jury found a verdict for the plaintiff, whicli the Court on a motion for a new trial, refused to disturb." lAltledale, J., concurred with the rest of the Court, and the rule was, there- fore, discharged. In the case of Farmer v. Legg, {a) the cpiestion was, whether the ship insured had been duly navigated in the manner prescribed by the stat. 31 Geo. (a) 7T. R. 186. UPON THE BODY, TACKLE, ETC. OF THE SHIP. 67 3, c. 54, s. 7. It was an action on a policy of ins\irance on The Cadiz Dis- patch, on a voyaore from London to the coast of Africa, and if the ship had not been navigated according to the statute in question, it was agreed that the insurance was void. The statute required tliat no person shoukl take the com- mand of an African ship, until he should have made oath, and produced to the officer of the customs, a certificate attested by the owner or owners, that he had already served in that capacity during one voyage, or as chief mate and surgeon during two voyages, under certain penalties. The Court were of opinion, that the certificate produced in the case signed by the then owner, did not comply with the requisition of the statute, that therefore the ship was not duly navigated, and confirmed the judgment of nonsuit against the plaintiff, which had, under Lord Kenyan' s direction, been given at Guildhall. *In a more recent case of Suart and another v. Poivell, (a) p ^jni t which was tried before Mr. J. Littledale, at the Summer Assizes L J at Lancaster, 1829, and which was an action on a policy of insurance upon "the ship Ardent and freight," at and from Sierra Lxone, or other the ship's ports or places of loading on the coast of Africa, to her final port of discharge in the United Kinp;dom. The insurance was made on the ship '''■Ardent,''' a British registered vessel of 245 tons burthen. She arrived at Sierra L^eone, with a full and proper complement of men. The case turns on the terms of the Navigation Act, 6 Geo. 4, c. 109, which requires that certain ships shall be navigated by a crew, three parts of which are British. An exemption is given if a due proportion of such seamen cannot be procured in any foreign port, or any place within the East India Company's charter — or if the pro- portion be destroyed during the voyage by any unavoidable circumstance, and the master produce a certificate of the facts under the hand of a British Consul, or two known British merchants, if there be no Consul at the place where such facts can be ascertained ; or in the want of such certificate if the master prove the facts to the satisfaction of the controller of customs in a British port, or of any person authorized in any other part of the world, to inquire into the navi- gation of such ship ; it was held that the ship insured, which lost her propor- tion of British by death at Sierra Leone, and could not, at least upon any reasonable term, replace them, except with foreigners, was within the excep- tion. And the vessel having been lost on her voyage home with an over pro- portion of foreign hands, it was further held that, although no certificate had been obtained pursuant to the act, the assured were not precluded from recover- ing against the underwriters, the circumstances of excuse being satisfactorily proved to a jury at the trial. The case of Wedderburn and others v. Bell, (b) is an important case upon the present subject, as Lord EUenborough *lays down the law ^ ^p-,^ l respecting the extending of the principle of implied warranty to L -"^ J the soundness of the sails and rigging, as well as to the sufficiency of the hnll. It was an insurance upon "goods" on board the Minorca, at and from Jamaica to London, at a premium of ten guineas, to return 5 per cent, if the ship sailed from the place of "rendezvous with convoy for the voyage and arrived." The ship sailed for England with convoy in the end of July, and parted from the fleet on the 12th August, and was never more heard of, whence she was supposed to have foundered. The defence rested on two grounds : first, that she was not properly equipped with sails : and, secondly, that she had not a sufficient crew. It appeared in evidence, that the sails which were used in stormy weather were in good condition, but that her maintop- gallant sails and studding sails, which are useful in light breezes, were extremely (a) 1 B. & Ad. 266. (6) 1 Camp. 1. 68 UPON THE BODY, TACKLE, ETC. OF THE SHIP. rotten, and almost quite unserviceable. The evidence about the state of the crew was contradictory. Lord EUenboroiigh. — "In an action of this kind, the plaintiffs are bound to prove, not only that the ship was tiglit, staunch and strong, but that she was properly equipped with sails and other stores, and that she was manned with a sufficient crew to navigate her on the voyage insured. These are conditions precedent lo the policy attachino-, and if they were not complied with, so that the perils were enhanced, from whatever cause this might arise, and though no fraud was intended by the assured, the under- writers have a right to say they are not liable. The hidl of the ship, in tliis case, was sufficient and seaworthy, but it appears that when she left Jamaica her sails were highly defective. It is not enough that a ship is supplied with such sails as are essential to her safety from the perils of the sea, and which might enable her, if not intercepted, from at some period or other, completing her voyage. A person who underwrites a policy upon her, has a right to expect that she will be so equipped with sails that she may be able to keep up widi the convoy, and get to the place of her destination with reasonable expe- *i9Q 1 <^^i^ioii- ^^^ must be *rendered as secure as possible from capture L J by the enemy, as well as from the danger of winds and waves ; but here the 3Iinorca appears to have been deficient in sails, on which her loss might materially depend : and if so, the risk being thereby gready increased, the policy never attached, and this action cannot be supported." His liordship also thought, that upon the balance of the evidence the crew were insufficient. The defendant obtained a verdict, (a) But although, by an implied warranty, every ship insured must be "sea- worthy" for the voyage at its commencement, still the assured makes no war- ranty that she shall continue so. In the case of the Earl of March v. Pigot, (b) Lord Mansfield (the case of the Mills Frigate being menUoned at the Bar) says, "Tlie assured ought to know whether his ship was 'seawordiy' or not when she set sail on the voyage insured; but how should he know the condi- tion she might be in after she had been out a twelvemonth?" And his Lord- ship again, in the case of Eden v. Parkinson, [c) confirmed Uiis doctrine by observing, "By an implied warranty every ship insured must be tight, staunch and strong; but it is sufficient if she be so at the time of her sailing: she may cease to be so in twenty-four hours after her departure, and yet the underwriter will continue liable. And in Watson v. Clarke, (d) which was an appeal from Scotland to the House of Lords, it was stated to be a clear and established principle, that if a ship be seaworthy at the commencement of the risk, though she becomes otherwise in an hour from that time, the warranty is complied with and the underwriter liable." Neither does the assured, after having provided a sufficient crew and master of competent skill at the commencement of die voyage, make any warranty fliat diey shall do their duty during the continuation of it, nor are the under- writers discharged from dieir liability in the case of a loss immediately caused ^ 1 '^y ^^^^ ^' ^'^^* perils insured against, although remotely *owing to L J the negligence of the master or crew. This important principle of the law of insurance will be treated of more fully in the further course of this Treatise, though it will also discover itself in what has to follow in this section. We have, likewise seen, that it is recognized in the case of Phillips v. Ileadlani, (a) where the Court lield it to be clear, tliat on the supposition that the master was a person of competent skill, yet if he acted bond fide, (a) Sec Wilkie v. Geddes, ante, p. 107. (/y) 5 Burr. 2808. (c) Doug. 732. (d) 1 Dow. 336, ante, p. 106. (a) 2 B. & Ad. 380, ante, p. 118. UrON THE BODY, TACKLE, ETC. OF THE SHIP. 69 though erroneously, in entering a port without a pilot, the underwriters would nevertheless not be discharged. In the recent case of Dixon v. Sadler, (b) to which we have already referred, this doctrine was fully discussed and recognized hy the Court of Exchequer, and their judgment was afterwards coniirmed on a writ of error, (c) It was an action on a time policy on the John Cook, and cargo, at and from the 17th of January, 1838, at noon, in port and at sea, at all times and in all places, being for the space of six calendar months. The declaration averred the loss of the ship to have taken place on tiie 19tli of May, 1838, by perils of the sea. Plea, — "That, tliough true it is that the said vessel was by the sea wrecked, broken, damaged, and injured, and became and was wholly lost to the plaiiitiHs, for plea, nevertheless, the defendant says, that the said wrecking, breaking, damaging, and injuring the said vessel, and the loss of the same by perils of the sea, as in the hrst count mentioned, was occasioned wholly by the wilful, wronjiful, negligent, and improper conduct (the same not being barra- trous (e«/,'had the ship surveyed, and, under the advice of the surveyors that it Avas necessary to lighten her, he put into JRamsgate harbour, and unshipped part of the cargo. He then proceeded on the voyage insured, in the course of which the loss took place. It was objected, on the part of the defendant, that the ship, having been overladen, was unsea- worthy at the commencement of the voyage, and that the memorandum was invalid from having been obtained without making a due communication to the underwriters. The jury found, that when the ship sailed from Bumsgate she was then in a seaworthy state, and that the subsequent loss was not in any degree attribu- table to the circumstance of her being overladen between London and Rams- gate. And the verdict was entered for the plaintifl'. Upon the motion for a new trial, Abbott, C. J., said : — " It is said that this memorandum, expressing the consent of the underwriters, is void, and that, in order to bind the under- writers, a new contract was necessary, inasmuch as the fact of the vessel having once sailed with a cargo greater than was proper for that voyage, and therefore in an unseaworthy state, wholly put an end to their liability on the policy. That proposition would go the length of establishing, that if a vessel, at the outset of her voyage, be by mistake or accident unseaworthy, owing to some defect, which is immediately discovered and remedied before any loss happens in consequence of it, still that the *policy would be r- -loQ 1 void, and the underwriters not liable. I confess that I was a little ^ -• surprised at that proposition, because, if true in point of law, I fear we should find many c^ses indeed where it would turn out that the assured could have no claim upon the underwriter, because something was wanting, or something excessive, at the instant of the ship's departure, although the want had been sup- plied, or the excess removed before the loss happened. Suppose, for instance, a vessel is unseaworthy, unless she has two anchors, being destined for a long voyage, and she sails from London to Gravesend \\'\\\\ only one, shall it be said that if no loss happens between LjOndon and Gravesend, and tlie vessel at Gravesend takes in her second anchor, and then proceeds on her voyage, that the underwriters are not liable for a subsequent loss, and that the policy is so completely at an end that, even if the underwriters agree to waive the objection, and to allow her to proceed on her voyage, their consent shall be unavailing? These inconveniences, Avhich would be continually occurring in practice, would lead to dangerous consequences, bj- opening a door to underwriters to break their engagements by means of trivial circumstances, the effect of which no one ever contemplated. I think, therefore, that that proposition cannot be main- tained. Widi respect to the sufficiency of the communication made to the under- writers, it is quite clear diat the underwriters were told all that was in substance necessary for them to know ; for they were told that the vessel, when she sailed, had too large a cargo on board, and that she was not in a situation fit to 72 UPON THE BODY, TACKLE, ETC. OF THE SHIP. perform her voyage. Upon the whole, therefore, I think this rule must be refused." The rest of the Court concurred. That the implied warranty of the seaworthiness of a ship has a reference only to her condition at tlie commencement of the risk, and does not extend to any other period of the voyage (except in those instances where something is to be done, as tlie taking on board of a pilot in die usual course of the navi- gation,) there can be no doubt. But some question may arise whether the r *1'^0 "1 ^^•'''•'I'^tl? in case the ship becomes unseawordiy *in the course of L J the voyage, and the fact comes to his knowledge, and she can by reasonable care and diligence be rendered seaworthy, is not in such a case bound to repair her, and whether, in his failing to do that, and a loss arises in conse- quence, the underwriters would not be discharged from their liability. It ap- pears, however, very clear that the fact must come to the knowledge of the assured, for the implied warranty extends only to the commencement of tlic voyage, when the assured is bound to know whether die ship is seawordiy or not. This question came before the Court of King's Bench, in a recent case of Hollinf>:worth v. Brodrick. («) But, inasmuch as the Court held that the plea was itself defective, they found it unnecessary to pronounce any direct decision upon the principal question in the case. As, however, the leaning of the minds of the Judges present may be gathered from what fell from them on the occa- sion, I shall briefly refer to the case in question. It was an action on a time policy for twelve calendar months upon any kind of goods and merchandises, and also upon the body, &c. of the ship Augus- tine. The declaration stated that ''during the said twelve calendar months, and whilst tlie said ship was attempting to prosecute a voyage wliich was pro- tected by the said policy, to wit on, &c., the said ship was by die perils and dangers of die sea, and by stormy and tempestuous weather, and the violence of tlie winds and waves broken, damaged, spoiled, and destroyed, and the said ship thereby became and was wholly lost to the plaintitr. " Plea. "That after the making of the said policy in the said declaration mentioned, and during the said time die said ship or vessel was insured as therein mentioned, and before the loss as in the declaration mentioned, the said ship or vessel was greatly broken, damaged, shattered, loosened and unseaworthy ; but the same by and widi reasonable care and diligence in diat behalf, and at and for a very small cost and sum as compared with the value of the said ship or vessel, might r *i^i -1 ^'I'l t'ould and ought to have been by the said plaintifl' repaired, L * J ^amended, and rendered seaworthy : yet die said plaintifl', well knowing the premises, did not nor would repair, amend and render the said ship seaworthy, but wholly neglected and refused so to do ; and she so remained and continued in such unseaworthy state and condition until the time of the loss in the said declaration mentioned." To this plea the defendant demurred. Lord Denman, C .1. — "'I'lie defence of unseaworthiness is generally ap- plied to the time when the risk commences; that is not done here, nor is the loss stated to have liappened in (•onse(iu('nce of the unseaworthiness super- vening. I own I fetil a doubt, whrdier, if it were distinctly averred that the ship had by gross negligence been brought, during the voyage, to a condition in which she would not be insurable diat would not be a defence. It is cer- tainly a new, and perhaps a dangerous one ; Init I think tiiut, if it were clearly made out, the assured could not say Uiat tiie loss was by perils insured against. 'JMie case, however, is not siu-Ii here. In die first place it is not (Jislincdy averred that the plaintifl" knew the precise danger, for the words "-knowing the premises" do not amount to such an averment. And secondly, it is not («) 7 A. & E. 40. UPON THE BODY, TACKLE, ETC. OF THE SHIP. 73 said tliat, except for gross negligence the ship might have been restored to a seaworthy state before the loss actually happened. TIic averment that with "rciusonable care" the ship might liave been repaired and rendered seaworthy, does not show there was gross negligence in not doing so. Therefore, even supposing die law to be as I at first suggested (whicli I liave some doubts of, from the noveltv and dangerous nature of the defence,) it cannot apply here ; aiul the plaiiitid' is entided to judgment." Patleson, J. — "The defence is put entirely on die fact diat the ship, daring the voyage, "was unseawordiy." It is not stated diat she became so through neglect, to repair from time to time, and that that occasioned die loss. 1 do not know that diat would have been a defence. But it is only said that by some means the ship was gready damaged. It is clear that the implied war- ranty of seaworthiness is satisfied if *the ship be seaworthy at the r- ^loo "i commencement of the risk. 1 do not know of any distinction on >- -^ account of the risk being for time. Unseaworthiness, for want of a particular description of crew is an exception to the rule, because one crew may be ne- cessary for one part of the voyage, and another for another. Tliat case is difierent from the case of unseawordiiness owing to something in the condition of tlie vessel. Even if it could be contended that a default of the owner, after the commencement of the voyage, might be set up in the manner here attempted, I should say that the loss ought to be traced to that, because the defence is no longer rested on the implied warranty, but is something actually done by the owner. Here the endeavour is to make the implied warranty extend to every period of the voyage where the owner could do anything for the ship, making him responsible, even diough the loss be not caused by his omitting any of these things. There is no authority for such a position. The plea is loosely drawn, even according to the defendant's view of the case. It should have stated that the plaintiff was aware of the unseaworthiness, and that there was time for repairing before die loss happened : and, supposing diat in die case of a time policy, the assured was held to a warranty of seawordiiness, at the commencement of each voyage during the time, the allegations should have been shaped accordingly. But I wisli to go upon the broad ground, that no ■warranty of seaworthiness is to be implied, except at the commencement of the voyage." Tliere is, indeed, an implied warranty on the part of the assured that a loss shall not occur through Ids own default, and therefore it was held in the case of Pipon V. Cope, {ii) that, when through the negligence of the owner of a ship insured, the mariners barratrously carried smuggled goods on board, whereby the ship was seized as forfeited, the underwriters were not liable for the loss. Lord Ellenborough there says, "this is a clear case of crassa negligentia on the part of the assured. It was the plaintiff's duty to have pre- r- ^loo n vented *these repeated acts of smuggling by the crew. By his ^ J neorlecting to do so, and allowing the risk to be so monstrously enhanced, die underwriters are discharged." And the learned reporter of diis case adds, "The supineness of the plaintiff in this case may be considered as a breach of an implied warranty on the part of the assured to use reasonable care and dili- gence to guard against all the risks covered by the policy." [a] And in an after- part of this work we shall see that if the assured navigates against the laws of the country in which he happens to be, he shall not recover for any loss arising out of such misconduct, for this is a gross fraud on the part of the owner of the property insured, and no man shall take advantage of his own wrong, [b) (n) 1 Camp. 434. (a) See Law v. Hollingsvvortb, 7 T. K. IGO, ante, p. 45. lb) See 2 Vern. 176, post. 74 UPON THE BODY, TACKLE, ETC. OF THE SHIP. And in the case of Boyd v, Dubois, (c) which was an action on a policy on some hemp, and the loss was alleged to be "by fire," Lord Ellcyiborough said, "If the hemp was put on board in a state liable to effervesce, and it did effervesce, and generate the fire, upon the common principles of insurance the assured cannot recover for a loss which he has himself occasioned. But I must positively say that they were not bound to represent to the underwriters the state of the goods, it would introduce endless confusion and perpetual con- troversies if such a duty was to be imposed upon the assured." Inasmuch, as the implied warranty of the seaworthiness of the ship is an essential insrredient in the contract entered into between the assured and the underwriter, it would, consequently, be irrelevant to the contract to make any representation of tlie condition of the ship, because that is entirely dispensed with by the underwriter, he haA'ing his remedy in his own hands. In a case of Shoolbrcd v. Nutt, (d) which was an action on a valued policy of insurance upon the sliip Two Sisters, and a cargo of wheat and wines from Madeira i- ^ -, to Charlestotvn ; the ship had sailed from London *to Madeira. L J The assured, who was the owner of the cargo, ordered his broker to procure an insurance from Madeira for the voyage to Charlestown, which Avas accordingly done ; but he did not communicate to the broker or the under- writers two letters which he had received from his captain the day before he made the insurance, stating that the ship had arrived at Madeira, but was very leaky, and that the pipes of v/ine had been half covered with water. But it was proved at the trial, that the leak had been completely stopped before she sailed from Madeira, and of course, before the commencement of the risk insured. In her voyage to Charlestoivn she was taken, and the plaintifl' aban- doned, liord Mansfield told the jury "that there should be a representation of every thing relating to the risk, which the underwriter has to run, except it be covered by a warranty. It is a condition or implied warranty in every policy tliat the ship is seaworthy, and, therefore, there need be no represen- tation of that. If she sailed without being so, there is no valid policy. Here the leak was stopped before she sailed from Madeira, and she sailed in good condition from thence; and there is no occasion to state the condition of a ship or cargo at the end of her former voyage. " There was a verdict for the plaintiff. And upon the authority of tliis case, and the reason of the thing; it was declared, in the case of Haywood v. Rogers, [a) after time taken to deliberate, that the assured having impliedly warranted his ship to be seaworthy, and having concealed no circumstance relative to the seaworthiness which he was required to disclose, and not having at the time of making the insurance, known of any fact which rendered her with reference to the risk insured, otherwise than seaworthy, Avas entided to recover. Tlu! doctrine established by the laws of this country is not confined to it, but exists as well in nil the maritime countries in Europe. By the Code de r -iQf; "1 Commerce, every *ship is to be visited previous to her setting sail L J on her voyage, and a report is to be made of the condition in which she is found. A modern writer (a) on this subject says: — "L'article 225, en prescrivant au capitaine d'un navire de commerce le devoir de faire visiter son navire avant de prendre charge, aux termes et dans les formes prescrits par les reglements, prcscrit aussi aux visiteurs de deposer le proces (c) 3 Camp. 132. {(]) Hit. ill Guild, after Hil. 1782'. Park Ins. 493. (rt) 4 East, .590. («) See "Mcmoire a consulter sur le legalite de la visite dcs navires, par un membre de rancicnne commission librc du port d'Anvcrs." Anvcrs, 1841. UPON THE BODY, TACKLE, ETC. OF THE SHIP. 75 verbnl de visite au s:refle du tribunal de cominercp, ou il en est delivrc extraitc an capitaine. Cette visite a evidemment pour but de constater I'etat du navire, de s'assurer s'il est a nieme de soutenir la navis^ation, s'il est muni de tout ce qui lui est necessarie pour le voyage qu'il doit faire ; oUe se fait avant de prendre charge afin qu'on puisse recognaitro I'etat du navire taut a I'interieur qu'd I'exterieur." And the same writer, speaking of tlie Code de Commerce Beige, adds : — "Dans ce noveau code, I'art 15, livre 2, litre 3, droit remplacer Par- ticle 225, du Code de Commerce encore en vigeur; cet article portait: 'avant de prendre charge pour un voyage a I'exterieur, le capitaine est tenu, a la requisition et aux frais de toutes Ics personnes y ay ant interet, de faire examiner par les exports jures, etablis a cet efTet ou nommes par le juge, si son navire est pouvu de tout ce qui est necessaire, et se trouve en etat de faire le voyage!" («.) In the ordinances of Louis the Fourteenth, [b) it is declared, that decay, waste, or loss, which happen from the internal defect of the insured ship shall not fall upon the underwriter. A commentator upon these ordinances, has gone into the reason and principle of such a regulation, and has shewn the propriety of it. (c) He sets out by observing, that this doctrine is of a date as ancient as the period when the French treatise called "/.c Guidon^' was published, which M-as about the year 1661 ; at which time, as appears by a reference to the book itself, it was considered as a settled principle, ^ sio« n *that losses happening from causes of this nature, were not to be a L J charge on the unilerwriter. («) The same author has also shewn, that such a provision is adopted in favour of the assurers by the ordinances oi' Rotterdam and Jlmsterdcim. (6) After stating these circumstances, he proceeds to say, that when a ship is deemed incapable of finishing her voyage, the question , whether this event is a charge upon the underwriters depends upon another, viz : — whether it happened by the violence of the sea, or other fortuitous cir- cumstances, or whether the disability proceeds from age and rottenness, (c) This will be determined by the inquiry which was made before the departure of the ship, in order to Judge whether it was in a condition to perform the voyage or not ; if the latter was tire case, the assurers ought not to answer. In another part of this work, he declares that the indemnity will be void, even though the ship has been examined before her departure, and declared capable of performing the voyage ; since the event has clearly shewn, that on account of latent defects it was no longer navigable ; that is, if it v/ere proved that the parts of the ship were so rotten, weakened and destroyed, that she was not in a proper state to resist the ordinary attacks of wind and sea, inevitable in every vova^e, then the underwriters are discharged. The reason is, that the examination before departure extends only to the external parts, because she is not unripped : at least, not so as to discover the interior and latent defects, ((/) for which the owner or master of the ship continues always responsible, and that with the greater justice, because they cannot be wholly ignorant of the bad state of the ship ; but supposing them to be so, it is the same thing, being indispensably bound to provide a "good" ship, able to perform the voy- age, (e) (a) See "Mcmoire a consulter sur le legalite de la visite des navires, par un membre de I'ancienne commission libre du port d'Anvers." Anvers, 184 1. (6) Ord. of Louis 14th. tit. Insurance, art. 12. (c) 2 Val. 80. (a) C. h, art. 3. (6) 2 Val. 90, 140. (c) 2 Val. 81. {d) 1 Val. 654. See per Lord Eldon, in Douglas v. Scougall, 4 ; Dow. 269, ante, p. 106. (e) See Roccus, note 98, upon the doctrine of implied conditions, and see how agreeable the above doctrine is to the decisions in the cases already quoted of Lee v. Beach ; Munro V. Vandam, and some others. 76 UPON THE BODY, TACKLE, ETC. OF THE SHIP. p ^iqiy -1 *The opinon of tliis learned commentator is supported by two of '- J his countrymen of the greatest note, on subjects of this description, viz : Pothier and the great Emcrigon. It is interesting, as well as instructive, to observe from the opinions of the learned Valhi in the passages just quoted, how the nolions of the early foreign writers, and the rules, regulations, laws, and ordinances of foreign maritime states in ancient times coincide in so remarkable a manner with tlie settled deci- sions of the Courts of Justice of this country upon tliis ancient and interesting subject of contract. This similarity can have sprung up between them only by the fact of the earlier administrators of the law of this country looking for information and guidance in such subjects to the writings of these learned men who have left behind them so many proofs and monuments of their great industry and researches : and also it is reasonable to suppose that this accordance between the ancient system of rules, and the more late body of law which has been by degrees made on the subject in this country, may well enough be as much owing to the effect which the great learning, and splendid talents, and acute powers of reasoning on the principles of die subject have in each case (both by the English lawyers and the foreign jurists) out of the same materials formed a structure in no very great degree differing the one from the other. Thus Lord Mansfield himself expresses himself in his judgment in the case oi Fel/y V. The Boi/al Exchange ./issurance Company, [a) His Lordship says, "'from the nature, object, and utility of this contract, consequences have been drawn, and a system of construction estal)lislicd upon thf> ancient and inaccurate form of words in which the instrument is conceived. The mercantile law in this respect is the same all over the world. For from the same premises the sound conclusion of reason and justice must be univer- sally the same." And Lord Chief Justice Denman, in the recent case of Shipton v. Thorn- r wf^a n ^^^'> (^) (^^hich has been alluded to before, *and will presently be •- ' J mentioned again more fully,) says that a question which was for the present consideration of the Court, "must turn upon the nature of the con- tract between the parties, as it is to be collected from our own books, and from those foreign laws and ordinances, as well as the writings of jurists to whicli our country have long been accustomed to have recourse for guidance on sub- jects of this nature." We have now considered under the present head of this subject, what was meant bv tlie term "-good," as applied to the "siiip," and have mentioned most of the authorities, as well those of our Courts of Law as the opinions which are to be gathered from learned and foreign writers, which have fixed and setded the rules and laws widch are liinding on die assured for the benefit of the assurers in respect to the "sufficiency" and "goodness" of the bottom upon which they have hazarded dieir risks, and shewn, we trust, most clearly, that this protection of the underwriters consists almost exclusively in the assumption by tlie law, tliat in every instance, where die assured and the underwriter enter into the contract of insurance on "ship," or the "goods on board," for it comes to the same thinsr, for if the ship be not "good" and "sMlhcient," the goods insured are lost by its defects, that in every instance, where a policy of insurance is made, there is at tliat moment (witliout any expressed agreement) an implied warranty on the part of the assured that the ship be seaworthy, "tight, staunch and strong" for tlie voyage insured; diat the ship, lii^ewise, be ])ro|)erly (ujuipped witli sails and other stores, fit for navigating die ship for tlie voyagf! in question; that she have a sufficient crew, (a) 1 Burr, 347. {h) 9 A. & E. 314. UPON THE BODY, TACKLE, ETC. OF THE SHIP. 77 and a irinstcr, of competent skill, to navijrato hor : and I may condude now this sul))ect in tlie words of Mr. J. Laivrcncc, wlio says "die consideration of the insurance is paid, in ordcu- Uiat the owner of a ship which is capahle of per- forming her voyajre may he indeninilied against certain continj^encies ; and it supposes the possibility of tlie underwriter's g-aininir the premium : but if the ship be incapal)le of pcrforiniuir the voyasre, there is *no possi- r- ^:,on -i bihty of the underwriter's gaining the premium — and if the con- L J sideration fail, tlu^ oblig-ation fails." At the s;ime time it is to be borne in mind, for tlie encouragement and satisfaction of the assured, that all the law requires of them is to perform their part of the contract strictly, as to the implied warranty, which they have, previous to die voyage, the power in their own hands to do, if they choose 5 the law then exempts them from any further responsibility, whatever may happen, because there was a bond fuh contract made by the assured, and the law will not be too captious in the event of loss, to find reasons for discharging the assurers from paying to the insured an indemnitv for their loss. But their still remains a furUier subject for our consideration on this head of "the good ship, &c. ," witliout which it would not he possible to leave it in a complete state of illustration. The remaining part of the subject relating pecu- liarly to the "ship," to which I allude, is that which treats of the law respect- ing the "changing of the ship," which is an additional duty cast upon the assured, which has not yet been touched upon. It was stated at the beginnino" of this section diat in order to make the insurance elTectual, it was essential that the name of the ship should be stated in the policy, and that with the exception of a case or two where the ship had iieen named by mistake, and the identity proved, it was held to be suihcient: and although the policy contains these words, "or by what other name or names the ship may he called," and that ill some special cases insm-ances have been held to he good, and no doubt are when made upon "ship or ships" coming from and expected to arrive at a certain port. This being so, generally speaking, the assured cannot substitute another vessel for the one named in the policy at the time of making the insu- rance, for the underwriter by such change has lost the advantage of ascertain- ing die character of the siiip substituted for the one first oflered to him, to underwrite, and has had no opportunity to exercise his judgment respecting it, as well as the premium he shall expect to receive; and if anodier were to start on the voyage *difierent to the one he understood to be the subject r- ,., .„ -, of the insurance, this alters in toto his speculation about the insu- L ^*^ J ranee, and consequently he will not, by law, be bound by his contract, which is now invalid : inasmuch it relates to a different matter to which he had agreed, because die contract he entered into with the assured was for the protection of certain "goods" on board a particular ship, or on "the particular ship itself," and it is clear that he cannot, in case of a loss arising, be held to his contract, wdiich has without his knowledge or consent been entirely made a diilerent one to that which he had underwrote. This reasoning, as a general theory, seems to admit of no doubt whatever, applying as it is supposed I0 the change of the vessel l)efore the commencement of the voyage. But whether in the case of a transhipment rendered absolutely necessary in the course of the voyage, and made by the master in due and proper execution of his duty, the underwriter shall lie considered as still continuing liable, and whether likewise for extra expenses attending the transhipment as an increase of freight, does not appear to have met with any express decision by the Courts in this country, though by the reij;ulations of other countries the question appears to have been setded. It is certain that by the contract between the shipowner and the freighter, the shipowner (and the master as his agent) is bound to carry the goods to their destination, if not prevented from doing so in his own ship, by some event 78 UPON THE BODY, TACKLE, ETC. OF THE SHIP. which he has not occasioned, and over whicli he has no control. "The master," says Lord Tenterden^ in his book on Shipping, {a) "shoukl always bear in mind, tliat it is his duty to convey the cargo to the place of destination. This is the purpose for wliich he has been entrusted Avidi it, and this purpose lie is bound to acconiplisli by every reasonable and practicable method." Many bad consequences, no doubt, might arise from relaxing this rule, by holding out temptation to the shipowner or master to make unnecessary transhipment of r ^14.1 1 S'oods, whereby the goods themselves run the *risk of damage, and L J the policy of insurance may become questioned. But Lord Ben- raan, in a recent case of Skipton v. Thornton, (a) says, "that after all. these inconveniences seem to point to a vigilant examination of every case of tran- shipment to see that its necessity is well established, rather than to decide the present question : and that this must turn upon the nature of the contract be- tween the parties, as it is to be collected from our own books, and from those foreign laws and ordinances, as well as the writings of jurists, to which our Courts have long been accustomed to have recourse for guidance on subjects of this nature." His Lordship then observes, "that there seems to be much disagreement in foreign ordinances and jurists whether or no the master is bound to tranship, or whether having contracted only to carry in his own ship, he is not absolved from further prosecution of the enterprize by the vis major which prevents him from accomplishing it in the literal terms of his undertaking." I propose, in the first place, to refer to the opinions and writings of learned jurists upon this important question, and to some of the ordinances and laws of other maritime and commercial states. Malyne, in his Lex Mercatoria, {b) appears to be of opinion that the assured may, for a sufficient reason, shift the goods from one ship to another, so as to be delivered according to the charter-party, and the underwriter will continue liable, for he says, "It sometimes happens that upon some special considera- tion, this clause, forbidding the transferring of goods from one ship to another, is inserted in policies of insurance, because in time of hostility or war between princes, it might be unladen in such ships of contending princes, by which the adventure would be increased. But according to the usual policies, which are made generally without an exception, the assurer is liable thereunto : for it is r *149 "1 ^iritlfirstood that the master of a ship would not, *without some L J good and accidental cause, put the goods from one ship to another, but would deliver them according to the charter-party at the appointed place." The late Mr. J. Park observes upon this passage, in his own treatise, («) "that the reason given by Malyne in support of his position, is by no means satis- factory, nor is it well founded in point of experience : neither has he adduced a single authority to corroborate the opinion advanced. Indeed," he says, "the whole current of authority turns the other way, at least as far as I have been able to trace it." Molloy has said, that if goods are insured in such a ship, and afterwards in the voyage she becomes leaky and crazy, and the supercargo and the master, by consent, become freighters of another ship for the safe delivery of the goods, and then after she is loaded the second vessel miscarries, the assurers are discharged. It is true, the sentence proceeds thus: " If these words be inserted, namely, the goods laden to be transported and delivered at such a place by the said ship, or by any other ship or vessel until they be safely landed, the assurers must answer for the misfortune." This opinion is confirmed by foreign writers. Hoccus writes, "Merces si eadem naviiratione transferantur de una, navi in aliam, et si novissime navis ubi (a) Patrc 321, 6th edit. (a) 9 A. «fe E. 314. (6) Mai. Lex. Merc. 118. (a) Park Ins. 613. UPON THE BODY, TACKLE, ETC. OF THE SHIP. 79 merces tranfussc fueriint, deperdater, tunc est inspicienda forma assecuralionis, in qua, si fuit dictum, quod assecurator merces quae sunt in tali navis tunc assecurator non tenetur, eo quod mentionem fecit in assecuralione de tali navi. Et ratio est, quia non par est ratio assecurationis, quando merces devehunter in una navi et quando in altera, immo solet id principalitcr considerari inter ipsos assecuratores cum una navis sit magis fortis quam alia.^'' (h) JRoccus is corroborated by several foreign writers (c) upon this branch of jurisdiction, which seems so contrary to good policy, and calculated to make the master and crow quit the vessel and let her be lost, the consequence of which must *invariably fall on the assurers in the shape of a total ^ *i4'j ~i loss. And we shall afterwards see that a clause is inserted in the •- -^ usual policies, that the assured, their factors, servants, or assigns, may sue, labour, and travel for, in and about the defence, safeguard, and recovery of the said goods and ship, &c., without any prejudice to the insurance, and it must be clear, in cases where it is possible, the readiest mode to save the property would be transferring it to another bottom, to the charges of which, the clause goes on to say, they (the assurers) undertake to contribute each in proportion of his sum insured therein. But it appears that from the following authorities, in case of necessity, the master is at liberty to tranship, where the transhipment can only be made at a higher rate of freight, and by the French law it becomes an average loss, and in the case of insurance must be borne by the underwriters. By the Rhodian law, (rt) the laws of Oleron, (b) and the ordinances of Wis- buy^ (c) the master was at liberty but not bound to tranship. By tlie old French ordinances the master was obliged to do so. "En cas que le vaisseau ne puisse este racommod^, le maistre sera oblige d'en louer incessammeint un autre." id) Upon these ordinances it was maintained, however, by Pothier (e) and Valin, {/) that it was imperative upon the master ; Emerigon, [g) on the other hand, insisted that the duty was cast upon him as the agent of the freigh- ters : and the same view is adopted by the modern French Code, (/t) By the French ordinances (i) and the Code de Commerce^ *and p *-\aa -\ according to the decisions in America, the shipowner is entitled to ^ -^ charge the cargo with the increased freight, and in the case of insurance it must be made good by the assurers, (a) And Lord Tenter den, in his book on Shipping, (b) adopts this principle, and refers to the ordinances of Antwerp and Rotterdam, and other authorities, and says, "If by reason of the damage done to the ship, or through want of neces- sary materials, she cannot be repaired at all, or not without great loss of time, the master is at liberty to procure another ship to transport the cargo to the place of its destination." The question in the case of Shipton v. Thornton,{c) (h) Roccus do Assec. No. 28. (c) Santerna de Assecur. n. 35. Stracca and others, n. 10. (a) Pardessus Collection de lois Maritinies, torn. 1, p. 256, c. vi, s. 42. (i) Id. torn. 1, p. 325, c. viii. art. 4. (c) Id. torn. I, p. 472, c. xi, art. 18. (r/) liiv. iii. tit. iii. (e) CEuvres, torn. 2, p. 394, ed. 2, (1781.) Contrats de Louages Maritimes, part 1, Charter-partie, 1, s. 3, art. 2, 93, num. 68. (/) Nouvcaii Commentairc sur I'Ordinance de la Marine, lib. iii., tit'; iii., (Du Fret ou Nolls,) art. ii. (torn. 1, p. 651, ed. 1766.) (g) Traite des Assurances, torn, i, p. 423, ed. 1827, ch. xii, s. 16. (A) liiv. ii, tit. 8. (/) Emer. Traite des Assur. c. xii. 3. 16. (a) Code de Commerce, 350; and Chancellor Kent's Comment, 3 Com. 212. (i) Abb. part 4, c. 4, p. 320, 6th edit. (c) 9 A. «& E. 314. Vol. VII.-.G 80 VPOS THE BODY, TACKLi:, ETC. OF THE SHIP. to which I have alkided, was whether, where goods shipped under a bill of ladino- in a general ship, which was prevented from completing the voyage h) consequence of damage occasioned by tempest, the master was bound, if ho had an opportunity, to forward the goods by some other conveyance to their place of destination, and the Court of Queen's Bench held that he was, at any rate, at liberty to do so at the same rate of freight ; and that if the goods arrived at their place of destination by such other conveyance, the shipowner was entided, on the freighter receiving the goods, to the whole of the freight origi- nally contracted for, although by the second conveyance the goods were carried at a lower rate of freight." The reader is referred to the very elaborate judg- ment delivered by liOrd Chief Justice Denman^ in which the opinions of the foreign jurists, and the laws of foreign countries, are fully laid down by the Court In giving judgment on this case, it was unnecessary for the Court to give any opinion as to what the eftect would be if the transhipment could have been made only at a higher rate of freight, neither did it pass any opinion on the effect this would have had on the contract of insurance. Lord Denman savs, "It must never be forgotten, that the master acts in a double capacity : J- ^ -, as agent to *the owner, as to the ship and freight, and agent to the L J merchant as to the goods ; these interests may sometimes conflict with each other, and from that circumstance may have arisen the difficulty of defininor the master's duty under all circumstances, in any but very general terms. The case now put supposes an inability to complete the contract, in its original terms, in another bottom, and therefore the owner's right to tranship will be at an end : but still, all circumstances considered, it may l;e gready for the benefit of the freighter that the goods be forwarded to tlieir destination even at an increased rate of freight, and if so, it will be the duty of the master as his agent- to do so. In such, the freighter will be bound by the act of his agent, and, of course, for the increased freight. " And this, according to the French ordinances, and the rule in America would, we have already seen, have to be borne by the underwriters in the case of an insurance. Besides this case of Shipton v. Thornton, which, though not containing a decision on the subject of insurance, may throw a litUe light upon it, should such a case of insurance arise under similar circumstances, and at any rate the authorities quoted by the Court have gone a long way to negative what Mr. J. Park says in his Treatise on Insurance ; as for as his researches had gone, the amount of authorities leant against the principle and policy of transhipment in case of necessity: (a) there are two other cases only that are to be found in our books ; and the first is the case of Dick v. Barrclh {b) and Mr. J. Park again says "this case is not expressly in point, though it seems to decide it." {c) It was an action on a policy of insurance whi(-h Avas tried before Lord Chief Jus- tice Lee, at (iuildhall. The plaintitV had insured "interest or no interest" in any ship he should come in from Virginia to London. Beginning the adven- ture on his embarking on board such ship : the money to be paid though his ^ "1 p6r-''on sliould escape, or the ship be retaken. He embarked in L J the * Speedwell ; but she springing a leak at sea, he went on board the Friendship, and arrived safe in London; but th(^ Speedwell was taken after he left her. And now in this action against the unilerwriters, the latter was held liable : for the insurance is on the ship the plaintilf set out in. and had dial got safe home, and the other been lost, he could not have recovered upon the ground of his having removed his person into that ship in the middle of the voyage. (a) Park Ins. 613. (*) 2 Strange, 1248. (c) Park In*;. 617. UPON THE BODY, TACKLE, ETC. OF THE SHIP. 81 The next case is that of Planlamoiir v. Staples^ (a) which is quite in point, to shew that where a transhipment had taken place into a second ship, the assured were held entitled to recover an average loss when the second ship was afterwards captured, and witii all her cargo since condemned. The plaintiffs were merchants at Geneva, and on their own account and risk, by means of their agents at Marseilles, were interested in bullion, and goods, and merchan- dises shipped there on board the ship IJuras, consigned to the plaintiffs' cor- respondents at Pondicherry, with directions to barter or sell the same on their account, and to make the returns on the same to Europe in other goods, the produce or manufacture of India. The plaintiffs were also interested in the said ship Duras. The ship Duras sailed from France on the voyage insured in June, 1776; and in the outward bound voyage was by bad weather totally lost at the Isles of France, in April, \in. The goods on board sustained damage, but great part of the bullion, and a considerable part of the goods were saved, and without any authority from the underwriters, sent forward in another ship to the plaintiffs' correspondents at Pondicherry, who received and disposed of the same, and under the plaintiffs' orders invested the produce in other goods, the produce or manufactory of India, and shipped the same on the plaintiffs' account on board a ship called the '•'•Pere de Famille," bound to France. The Pere de Famille sailed from Pondicherry in August, 1778, and in the course of her voyage, was *condemned at the Isles of ^ ^aa-j *i France, as unfit to proceed to Europe; whereupon the plaintiffs' L J goods were put on board another ship, called the '■^Louisa Elizabeth,'^ bound for France: which ship, wiUi the plaintiffs' goods on board, sailed for France, and was afterwards taken by an English privateer, and has since, with all her cargo, been condemned. On the 29th August, several of the underwriters on the policy signed a memorandum thereon, whereby they agreed to run the risk on the goods saved as aforesaid, in any other "ship or ships," until their safe arrival in France: but which agreement the defendant and several others of the underwriters refused to sign, or give their consent to it. The defendant hath paid the whole of the average loss, occasioned by the loss of the ship Duras, and by the damage of the plaintiffs' goods then on board. By the capture of the ship Louisa Elizabeth, and of the goods, the plaintiffs sustained a loss of 12/. 2s. 9d. per cent, on the sum subscribed on the said policy, which has been paid by all the underwriters who signed the memorandum of 29th August, 1778. The question for the opinion of the Court was, whether the defendant was to pay the said loss of 12/. 2s. 9rf. per cent, which the plaintiffs had so sustained by the capture and condemnation of the ship Louisa Elizabeth and her cargo: or if not, are they entitled to any, and what return of premium? Lord Mansjield — " There is not a particle of doubt. The only question is, whether die shipping to Europe was necessary to the salvage. It is admitted that the defendant is liable upon the voyage to Pondicherry, though the goods were conveyed in another ship : therefore that circumstance makes no differ- ence. The sale of the cargo is also admitted to be necessary. Then how were the proceeds to be admitted to Europe? What was the best way of get- ting home the money for the benefit of the assured and assurers .^ Beyond all doubt the best way was to invest it in other goods. Therefore, that being done which was the best to be done, the underwriters are liable." Butler, J. — ''There is no case which expressly decides that the captain may ^ ^. -, invest the ^produce of the goods saved." But in the case of Mills L J v. Fletcher, [b) it was decided, that the captain has a general power, and is bound, in duty, to do the best for all concerned. Postea to the plaintiffs. (fl) M. 22 Geo. 3, B. R. 1 T. R. 611, note (a), 3 Doug. 1. (6) Doug. 231. 82 BEGINNING THE ADVENTURE, ETC. I may venture to make an observation, with respect to this case, and the previous one of ^^ Shipton v. Thornton^'''' in which Lord Denman says, "the captain is agent for the owners of the goods, as well as of the owner of the ship in respect to ship and freight, and therefore it woukl appear probable that had there been a question in the latter case respecting an assurance, after a loss had happened of the second ship, and of the goods into which they had been transhipped, in the same manner as in the case of Plantamour v. Staples, the underwriters would be liable, on the principle 'that the master's duty called upon him to do every thing that was the best for all concerned.' " SECTION VI. BEGINNING THE ADVENTURE UPON THE SAID GOODS, ETC. The head of this sixdi section includes that portion of the policy which .states the time at which the risk commences both on the said "ship," and the said "goods" laden on board, and when they end, viz : " Beginning the adven- ture upon the 'said goods and merchandises,' from the loading thereof aboard the said ship, at , upon the said ship, &c. , and so shall continue and endure during her abode there upon the said ship, &c. And further, until the said ship, with all her ordnance, tackle, apparel, &c., and goods and mer- chandises whatsoever, shall arrive at , upon the said ship, &c., until she hath moored at anchor in good safety, and upon the goods and merchandises, until the same be there discharged and safely landed." r *14Q "1 ^^ most of the commercial countries abroad it is 'particularly L -^ expressed, either in their ordinances or in the policies, "that the risk of the assurers shall commence the moment the goods quit the shore," and the assurers not only run the risk in the ship named in the policy, but also in the boats and lighters that shall be employed in carrying the goods on board. The custom is said to be different in this country : for the Ens^Ush policies expressly declare that the adventure shall begin upon the goods "from the load- ing thereof on board the said ship." This is the usual form in the printed policies used by private underwriters ; but every underwriter, if he chooses, may take upon himself the risk of the goods from the shore to the ship. I believe that it is not at all rare, with respect to companies, and in cases of voy- ages to the East Indies or China, where there is difficulty in putting valuable goods on board safely. I have met with, in declarations on policies, many instances, and I have no doubt on the practice ; but it all depends upon the words used whether the risk to the ship is to be as well as from the ship. There is a very recent instance of this in the case of Sutherland v. Pratt, {a) (which has been referred to often, [b) ) which was an insurance made by the plaintiff with the General Maritime Jissurance Company, "at and from Bombay to London, with leave to call at all ports and places, on either side and at the Cape of Good Hope, including the risk of craft to and from the vessel, upon any kind of goods," &c. I will mention another instance in the important case of lioi/x v. Salvador ; the declaration is at length reported in Mr. Scott's Reports, (c) "The case (a) 1 1 M. & W. 297. (h) Ante, pp. 12, 33. (c) 4 Scott, 1. BEGINNING THE ADVENTURE, ETC. 83 (upon the writ of error from the Common Pleas) stated that the action was on an insurance on goods, per the General La Fayette, and other 'ship or ships,' at and from, among other ports or phices in the Pacific Ocean, Valparaiso, to any port or ports in France and the United Kingdom of Great Britain, with leave to touch and trade at any place in America, or anywhere else, to make all transhipments, and including the *risk of craft to and from the r- ^, _„ -. vessel or vessels." And I have little doubt that in this country the L J insertion of this clause by the assurers, in the case of companies is not at all rare. At all events, with regard to the conclusion, it appears in all cases to preserve the same form, viz: "and shall continue till the goods are safely landed." And so, where ships cannot come close to the quay to unload, the underwriters are liable for the risk of the goods being carried in boats to the shore. The risk upon the body of the ship is "at and from, &;c. , upon the said ship, and so shall continue and endure until the said ship shall arrive at, &c., , and hath there moored at anchor twenty-four hours in good safety." (a) When tlie insurance is made, indeed, on the homeward voyage, the begin- ning of the adventure is sometimes stated to be "immediately from and after her arrival at the port abroad;" at other times, "from the departure;" and, in short, it depends entirely upon the inclinations of the assured expressed in the contract. And when the words "at and from" a given place are used in a policy of insurance, the risk is always understood to commence from the time of the ship's first arrival at that place. And in an action upon an insurance before Lord C. J. HarduHcke, it was held that the words "at and from Bengal to JEngland," meant the ship's first arrival at Bengal; and it was agreed that, when such words are used in policies, first arrival is always implied and understood : (6) and the commencement of the voyage is sailing from port, (c) The Jirst class of cases to which I shall refer on this "head" are those upon which the Court have put a construction upon the attaching of the policy, and of the commencement and duration of the risk. The first case to be mentioned is an anonymous one, (d) in the reign of James the Second, but is from a reporter of *very good authority. ^ ^, p., -■ A policy of insurance shall be construed to run until the ship shall ^ J have ended, and be discharged of her voyage; for her arrival at the port to which she was bound is not a discharge, till she is unloaded. And it was so adjudged by the whole Court, upon a demurrer. This decision may be very proper in a case so general as this, but in all instances where the usual clause is adopted, "and till the ship shall have moored at anchor in good safety," the underwriter on the "ship" would con- tinue liable for accidents at the port no longer than "the twenty-four hours." With respect to the continuation of the risk upon the goods, which the under- writers undertake to be answerable for till the said goods be safely landed, by many foreign ordinances the number of days in which the assured are to unload their goods is stipulated ; but in this country there is no such stipulation : the owners of the goods being left to take them away at their discretion, so long as there is no unreasonable delay ; sonie cargoes, no doubt, will take more time to unload than others. In the case of Noble v. Kcnnoway, (a) where goods insured to the coast of Labrador, "till safely landed," they were kept on board a long time after the (a) 1 Magens, 47. (6) 1 Atk. 548. (c) Graham v. Barras, 5 B. & Ad. 1011. (d) Skinner, 243. (a) Doug. 510. 84 BEGINNING THE ADVENTURE, ETC. ship's arrival — this being the "usage" of the trade at that place — the risk con- tinued. It has been observed above, that where the ship cannot come near the quay in order to unload, in such cases the underwriters must continue liable for the risk of carrying the goods in boats to the shore. But in a case of Sparrow v. Carruthers^ (b) where the owner of the goods brouglit down his own lighter, and received the goods out of the ship, and before they reached land an acci- dent happened, whereby the goods were damaged, a special jury of merchants, under the direction of Lord Chief Justice Lee, found that the underwriters were discharged, although the insurance was upon "goods to London, and till the same shall be safely landed there." r *152 1 *But when there is an "usage," in a particular trade, to take '- -^ the goods on shore in public lighters, the underwriters were held liable for an accident which happened to the goods on board the lighter. This was the decision in the case of Hurry and others v. Royal Exchange Com- pany, (a) And in the case of Stewart v. Bell, (b) where the goods insured were destined to a particular place in an island, and the usual course was for the ship to proceed to an adjoining port, and there tranship the goods into the shallops, but no information was given of this circumstance to the underwriters, it was held that they were liable for a loss which happened to the goods after they had been put on board the shallops. And in the case, also, of Mathie v. Potts, (c) which was an insurance of goods on board, from Nassau to Ca7n- peachy and back, "till discharged and safely landed." the ship having sailed to Campeachy, and having arrived off that port, made signals for launches to come out, into which the goods were put for the purpose of being run ashore: the Court thought the goods were protected by the policy, while on board the launches, such being the "usual" method of carrving on that trade. But where in the case of Strong v. NataUy, [d) goods had been put on board a lighter in the usual way, and brought to a wharf belonging to the plain- tiff in the afternoon, but in consequence of the roughness of the weather could not be landed that evening; the lighterman, finding he could not land the goods, asked the plaintiff whether he should stay to see the carijo landed. The plain- tiff said he need not do so, for he would see to the landing himself. Accord- ingly the lighterman left the cargo alongside the wharf. In the course of the night, tlie lighter was sunk, by unavoidable accident, and the goods were lost. The Court held that "the underwriters were discharged, the plaintiff having r *l'iS 1 taken the goods into his own possession before they were landed, L J *having the complete control over them, and renounced all benefit under the policy." When the policy is on "the ship," I have observed, {a) with the usual clause, "till the ship shall have moored at anchor twenty-four hours in good safety," the underwriters will not be liable for any loss which takes place after the expiration of the twenty-four hours. This principle of law, was settled by a case of Jjockyer and others v. Offley, (b) which was an action on a policy of insurance on "ihi; sliip IIo]ie, from Hamlnirgh to L^ondon.^^ At the trial before Mr. .1. Buller, at Guildhall, the verdict was found for the plaintiff, subject to the opinion of the Court upon^ the following case: "that the plain- tiffs were interested in the ship to the amount of the sum insured, that the master had in the course of the voyage committed barratry by smuggling on (i) 2 Strange, 1236. (a) 2 B. & P. 430. (f>) 5 B. & A. 238. (c) 3 B. & P. 23. ((J) 1 N. K. 16. (a) Ante, p. 151. (i) 1 T. R. 252. BEGINNING THE ADV-ENTURE, ETC. 85 hiti own account, by hovering and riinnin- "^ J valued at 4000/., "at and from the ship's port or ports of loading in all or any of the Cape de Verd Islands to Liverpool.'''' The Jane was purchased at Sierra Leone by Messrs. Taylor and Waldron, in whom the interest was averred: their plan was that she should take in a complete cargo of orchella weed. They expectetl that this would be supplied by Don Emanuel Mar- tinus, the governor ; it was suggested that he had verbally undertaken to do so, but there was no evidence of any binding agreement. The ship arrived at St. Nicholas on the 10th of August, 1812, and took in one hundred and fifty bags of orchella weed. The next day a storm came on, and she was totally wrecked. It did not appear that there was more orchella weed then ready to be put on board : but there were persons employed in St. Nicholas and the other islands to pick and prepare what should be a sufficient quantity to till the ship. The defendants paid into Court sufficient to cover the freight of the one hundred and fifty bags. It was contended, on the authority of JMontgomery V. Kggington, that the plaintiff was entided to recover for a total loss. Lord Ellenborough, "If a contract had been proved for supplying the ship with a full cargo at a stipulated rate of freight, it would have appeared, that by the event which has happened the assured would have been deprived of a profit (a) 13 East, 323. (6) 3 Camp. 441. 90 BEGINNING THE ADVENTURE, ETC. which they must otherwise have certainly received, and they would have had a right to resort to the underwriters for a full indemnity. Nor should I have considered it material Avhether that contract was or was not under seal, or whether it was written or merely verbal. This circumstance only varies the mode of proof, without altering tlie principle on which the rights of the parties depend. Beyond the one hundred and fifty bags actually on board, the interest of the assured was merely in expectation. For anything that appears, Don Emanuel Martinus^ the governor, might have refused to send on board another bag, without subjecting himself to an action | and although the storm had never r *ifiQ 1 arisen, the ship might have been obliged to return nearly *empty. L 1"^ J The loss of freight which the assured now demands, therefore, did not necessarily arise from the event against which the underwriters undertook to indemnify them." Though the commencement of the risk on freight is generally at her port of loading, yet where she is chartered to sail to a certain place to take in a cargo, and is insured "at and from the commencement of her voyage to the end," and is lost on her way out to her port of loading, the policy on the freight nevertheless attaches. Thus in Thompson v. Taylor, («) on an open policy on freight, at and from London and Teneriffe to any of the TVcst India Islands, {Jamaica excepted) the underwriters were held liable to pay the insurance, though the ship sailed from London in ballast, and was captured before her arrival at Teneriffe, where the cargo was to be put on board. But as the ship was under a charter-party to depart out of the river Thames, and proceed to Teneriffe, and there to load and receive on board from the freighters five hun- dred pipes of wine, to be delivered in the West Indies, for the freight of which five hundred pipes the freighters covenanted to pay 35s. per pipe ; the Court held, that the instant the ship departed from the Thames, the contract for freight had its inception, and the plaintifi" was entitled to recover. At the trial, the plaintiff had obtained a verdict, and the case was afterwards brought before the Court upon a motion to enter a nonsuit. After argument at the Bar, Lord Kenyan said — "When this case came on at nisi prius, I thought the plaintiff was not entitled to recover ; because I considered it as similar in every respect to that of Tonge v. JVatts, and had it been so, my judgment now would have gone with that case. But this case depends upon its own peculiar circumstance's. It is admitted, that if this contract had an inception, that the right to freight then commenced, and the policy attached. Now by the charter- ^ 1 P'"'^y ^^^^^ ^^^^ ^'^ inception in the contract, by the *departure from L '■ ^"^ J the Thames ; for the covenant in the charter-party was to go from the port of London. In the case from Strange, the inception of the contract would have been by taking the goods on board, which not being done, the insurance did not attach. In the case of Montgomery v. Eggington, there was an inception of the contract, and the plaintiff recovered. The case in Strange importantly differs from this; but I am now completely satisfied, though the case is new, that tlie plaintiff ought to recover." Mr. Justice Grose. — "In this case the freight begins to run in consequence of the ship's departure from London; the plaintiff, tliereforc, has an interest in the voyage. But in Tonge v. Watts, the voyage was not begun, nor were the goods on board." Mr. Justice Lawrence. — "I think this plaintiff had an insurable interest: for it seems to me equally as strong an interest as the profits to arise from a cargo of molasses, which have been held to be an insurable interest. (6) It is (fl) 6 T. R. 478. \b) Grant v. Parkinson, see ante, p. 38, 43, 53. BEGINNING THE ADVENTURE, ETC. 91 said that the plaintifT had a mere right of action against the freighter ; and if he had not provided a cargo, though the plaintiff might recover against the freigliter for breach of contract, vet he coukl not recover against the under- writers. It is true an insurance on freight could not have heen recovered, if the ship had proceeded to the West Indies without one. But here, by a peril in the policy, the assured is prevented from earning a specific freight j and, there- fore, the rule for entering a nonsuit must be discharged." (b) So in Horncaatle v. Suart, (c) where a ship was chartered on a voyage from London \o Dominica^ and back to London, at a certain freight upon the out- ward cargo, and after delivering her outward cargo at Dominica, the charterers \vere to provide her a full cargo homeward, at the current freight from Domi- nica to London, it was held, that an insurance, by the owner of the ship, on the freight at and *from Dominica to I^ondon, attached while the r ^ippi "i ship lay at Dominica, delivering her outward cargo, and before ■- J any part of the homeward cargo was shipped, during which time she was cap- tured by an enemy, the contract of affreightment by the charter-party being entire, and the risk on the policy having commenced, and it being impossible to distinguish this case from that of Thompson v. 7at//or (supra.) In the Court of Common Pleas, in case of Cellar v. jyr Vicar, («) in an insurance on freight on a voyage at and from Demerara, Berbice, and the Windward and Leervard Islands to London ; the ship being at Demerara, an agreement (not in writing) was entered into by the master with a house there for a freight from Berbice to L^ondon; the cargo to be put on board at Berbice, and the ship to take a cargo of bricks and planks from Demerara to Berbice, and deliver them there ; while the vessel was proceeding to Berbice, with this cargo on board, she met Avith an accident, and in consequence never earned her freight. This was held not to be a loss within the policy, for the voyage from Demerara to Berbice had nothing to do with the voyage insured. The voyage insured was from Demerara to Jjondon, or from Berbice to London, or from any of the Windward or Leeward Islands, according to the place from which the ship might happen to sail on her voyage to London. Now, in this case, such voyage never commenced : the case itself excludes any inception of the voyage. The ship took in a cargo for Berbice, and then expected to get the cargo she was to carry to I^ondon. But subsequently to this, in the same Court, in case of Atty v. Lindo, [b) in a policy on freight on l)oard the ship Stranger, "at and from London to Jamaica, with liberty to touch at Madeira, and to discharge and take in goods there :" it appeared in evidence, that the plaintiff, as owner, had agreed with one De Franca, hy charter-party, that the ship should take in goods at London, and proceed to * Madeira, and there deliver such part of the goods ^ *i Ap "i shipped at Jjondon as the agents of De Franca should direct, and L J receive on board wine, and proceed to Jamaica, and there deliver : and the freighter agreed to pay 135/. in full, for freight, during the whole voyage from London to Madeira, and from thence to Jamaica; such freight to be paid in Madeira, on delivery of the goods shipped at London for that place, by Ma- deira wine at 40/. per pipe, to be carried in the said ship free of freight. The ship arrived at Ma.hira, and delivered all her I^ondon cargo, except thirty- three casks of coal, which the captain kept on board to stiffen his ship. Part of the cargo for Jamaica was received on board, but not the wine to be paid for freight, when a gale arose, which obliged the captain to cut his cable and {b) See also the case of Mackenzie v. Shedden, 2 Camp. 431. (c) 7 East, 400. (a) 1 N. R. 23. (/!») 1 N. R. 236. 92 BEGINNING THE ADVENTURE, ETC. run out to sea, where he was captured. The Court unanimously confirmed the verdict of the jury, holding the underwriters liable for a total loss of freight, for the contract of freight was entire, and the charter-party treats the whole as one voyage. The whole freight is to be paid in one gross sum, and that sum is to be paid in Madeira wine, valued at a certain sum at Madeira. The pay- ment, therefore, is local and indivisable; and on payment of the freight in wine, it is to be carried on in this particular ship to Jamaica. Here the accident happened before the condition was performed, on which the freight was paya- ble, namely, the delivery of the goods shipped at London. In short, the great point in all these eases seems to be, wliether there is one entire contract for the voyage out and home, and whether the freight is entire : for the Courts seem to have thought that the doctrine laid down in Thompson v. Tai/lor, and the other cases of that description, ought not to be extended. But wherever there has been no contract, the rule in the old case of Tonge v. Watts («) must prevail. ,. -^ Thus in an action of Forbes and another v. Cowie, [b) on *an |_ ''Ibv J ^p^j^ policy on freight of the shij) CJnsunck at and from any port or ports of Hayti (St. Domingo) to Liverpool: the Chisivick sailed from Liverpool., and 'arri^ ed at Hayti., with a cargo of plaintifl"s, which was to be bartered for other goods to be brought back to Liverpool in the ship. Part of the outward cargo was bartered for fifty-five bales of cotton, which were put on board. The remainder of the outward cargo was still on board when the ship was lost by perils of the sea. The remaining part of the outward cargo, though damaged, was saved, and in twelve days after the loss of the ship, was exchanged for other goods the produce of St. Domingo., the freight of which would have been of larger value than the sum insured, if the ship had not been lost. The defendant settled for the freight of the fifty-five bales, without pre- judice to a further claim for loss of the freight of the homeward cargo. This case on tlie part of the plaintiff was compared to that of Horncastle v. Suart, (c) and much pressed. But Lord Ellenbo rough was more disposed to doubt the authority of that case than to extend it. There, however, there was one charter-party for the out- ward and homeward voyage, and the freight was entire. That is the only ground upon which the decision can be sustained. Here, I can entertain no doubt. The underwriter does not insure that the ship shall have a freight, but only that the owner shall be indemnified for the loss of the freight of goods put on board. Wliat goods were on board when the ship was lost.'' The outward goods. They were not to be brought home on freight : they were to be bar- tered at >SV. Domingo. They were the means by which the homeward cargo was to be procured. How then have the plaintiffs been damnified upon the subject-matter of this insurance.^ By losing the freight of fifty-five bales of cotton, and that they have been already paid by the defendant. The plaintiffs were nonsuited. r *iRfl "1 ^"^ ^^^ ensuing Term, the Court of King's Bench refused a *rule L -^ to show cause why this nonsuit should not be set aside. Lord Ellenborongh on that occasion said, ''if there Jiad been a bag of money on board to purchase a cargo when the loss happened, would this have been freighted ; and whether it was possible to draw a distinction between goods to be bartered for a cargo and money to pay for one?" The other .Judges con- curred and expressed an oi)iai()n, that the cases upon this subject ought by no means to receive anv extension. (a) Ante, p. 160. {b) 1 Camp. 520. (c) Ante, p. 164. BEOINNINC THF. ADVENTURK. ETC. 93 The same case of Forbes v. ^flspinalK («) on a valued policy, came before the Court in Hilary Term, 1811, was fully discussed a! the IJar, and the Court, by Lord Elloiboruwj^h, delivered a very elaborate judgment, conformably to what is said above. His Lordship says, "To recover in any case uj)on a policy on freight, it is incumbent on tlie assured lo prove, that unless some of the perils insured against had intervened to prevent it, some freight would have been earned : and where the policy is open, the actual amount of the freight, which would have been so earned, limits the extent of the underwriter's liability. In every action upon such a policy evidence is given, eitlicr that the goods were put on board, from the carriage of which freight would result, or that there was some contract under which the shipowner, if the voyage were not stopped by the perils insured against, would have been entitled to demand freight: and in either case, if the policy be open, the sum payable to the shipowner for freight, together with the premiums of insurance and commissions thereon, is the extent to which the underwriters are chargeable. In this case, therefore, as there was no contract under which the shipowner could claim freight, but for the goods actually ship- ped on the homeward vo)-age, the assured could have made no claim, had this been an open policy, but to the extent of the actual freight on the fifty-five bales of cotton which were sliipped for this country, and of the premiums and com- mission thereon. 'V\\e question then is, whether ''it makes any p ^-leq -i essential difference that this is the case of a valued policy.^ And L J we are of opinion, upon full consideration, that it does not. The object of valuation in a policy is to fix, by agreement between the parties, an estimate upon the subject insured, and to supersede the necessity of proving the actual value, by specifying a certain sum as the amount of that value. In fixing that sum, if the assured keep tairly within the principles of insurances, which is merely to obtain an indemnity, he will never go beyond the first cost, in the case of the goods, adding thereto only the premium and commission, and if he think fit, the probable profit ; and in the case of freight he will not go beyond the amount of what the ship would earn, with the premiums and conmiissions thereon. The valuation, however, in the case of goods, looks to all tlie goods intended to be loaded ; and in the case of freight, it looks to freight upon all the goods the ship is intended lo carry upon the voyage insured ; and if by the perils insured against in a valued policy on goods part only of the goods intended to be covered be lost, the valuation must be opened, and the assured can only recover in respect of that part; and so, if by the perils insured against, the freight of part only of the goods to be carried be lost, the assured can only recover in respect of that loss, according to the proportion which that part bears to the whole sum at which the entire freight Avas estimated in the valuation." But where a ship was chartered from Liverpool to Jamaica, there to take on board a full cargo for Liverpool., at the current rate of freight to be paid at one month from the discharge of her cargo at Liverpool, and an insurance made on the homeward freight, the ship bemg lost at Jamaica when she had taken in a part of the homeward freiglit, and the rest ready to be shipped, the Court held tliis case was governed by Thompson v. Taylor, and Hornc.astle. V. Suarf, and quite reconcileable with Forbes v. .ispinall. {b) *In the case of TJll/iamson v. Lines, (c) which was :m action p *i7n "i on a policy '-on freiglu" at anil from Algoa Bap and Table Bap. ■- -J both or either, to London: the d{?claration stated that the ship had arrived, and was in good safety, at .'llgoa Bap, and that a homeward cargo was ready for (o) 13 East, 323. (6) Davidson v. Willasey, 1 M. & S. 313. (c) 1 M. & R. 88; 8 Bing. 8, n. 94 BEGINNING THE ADVENTURE, ETC. her under a charter-party, and that before it was put on board she was lost by perils of the sea. Plea, the general issue. At the trial the captain stated that he had arrived willi an outward cargo at Table Bay, and discharged such part of it as was destined for that place, and had taken up about sixty tons of goods for MQ;oa Bay, where he arrived on the 30th September, and came to an anchor : from that time he was engaged till tlie 8th October in discharging his outward carcro when the weather would permit, and that on the evening of the 8th October, he gave orders that no more of the outward cargo should be discharored till some of the homeward cargo should be on board, as her load was reduced to seventy tons, which, in his judgment, was requisite for the safety of the ship in the situation in which she was placed : and that he in- tended to take on board part of the homeward cargo, whicli was ready for him, the next morning. Before that time however, a storm arose, and the ship was lost : it was contended for the defendant that the vessel was not at the time of the loss in a condition to take in her homeward cargo, and that, therefore, the voyage "at and from Algoa Bay''^ had not commenced. Lord Lyndhurst, C. B., told the jury "that the question for them was merely one of fact : that if the ship was in a condition to begin to take in her homeward cargo, tlie plaintiff was entitled to recover ; if not, the verdict ought to be for the defend- ant." The jury found for the plaintiff. And the cases or Truscott v. Christie, [b) Park v. Hcbson, (c) Warre v. Miller, id) are antliorities to show tliat in all cases where the freight is lost by r »i-Ti "1 ^ peril insured against, *the assured is entided to recover, though L J no goods be actually on board, provided the ship is ready to receive them and the goods are ready to be shipped, or the owner has a contract with anv one for their shipment. The principle of law laid down in the foregoing cases was recognized in the two recent decisions of Flint v. Flemyng, in the Court of King's Bench, Trin. Term, 1830, and Devanx v. F Anson, in the Court of Common Pleas, 1839. The first of these, Flint v. Flemyng, (o) was an action on a policy of insurance, dated the 7th Jan. 1828, "on freight," on the ship Hope, at and from Madras to London. At the trial, before Lord Tenterden, C. J., at the London Sittings, after Trinity Term, 1829, it appeared that the ship sailed on her outward voyage on the 5th August, 1827, and arrived in Madras Roads, on the 30th of November, of that year. From that day till the 5th of Decem- ber, the crew were employed in discharging the outward cargo, and on the 6th of that month the ship was lost by the perils of the sea. No part of the home- ward cargo was then shipped ; but the captain had purchased at Madras, by order and on account of the plaintiff, his owner, twenty -five tons of red wood; and a commercial house, then trading under the firm of Binny & Co., had con- tracted to ship one hundred and twenty-two tons of saltpetre ; and Webster, one of the partners of that house, engaged to ship ninety tons of light goods, but as to those goods there was not any contract in writing. It was objected for the defendant, let. That the plaintiff could not recover on a policy on freight the loss which he sustained by having been deprived of the opportunity of car- rying his own goods in his own ship : 2nd, That tliere was no contract to ship tlie light goods, and that, therefore, as to them, the risk had not attached. Lord Tenterden was of opinion that though tlie profit made by a shipowner by carrying his own goods in his own ship was not strictly freight, yet that that word, according to mercantik; language, miglit, in a policy of insurance, _ ^ "1 ^f^irly mean that profit which a shipowner expected to make by L ^ ''^ J employing his ship to carry his own goods ; and as to the ninety (b) 2 B. «& B. 320; 5 Moore, 33. (c) Cited in 2 B. & B. 326. \d) 4 B. & C. 538 ; 7 D. «Sc R. 1. (a) 1 B. & Ad. 45. BEGINNING THE ADVENTURE, ETC. 95 tons of liffht goods, ho told the jury that if the cnptain had a roasonablc assn- rance that they would be shipped, the assured had a right to recover in respect to thein the freight which the vessel would have earned if they had been shipped and she had performed the voyage, tliough there was not any such contract as could l)e enforced by action. A verdict haviug been found for the amount of the freight of all the goods, a rule nisi was obtained upon both tlicse points. Lord Tenferden. — "If it be a necessary ingredient in the composition of freight that there should be a money payment by one person to another, the benefit accruing to a shipowner from using his own ship to carry his own goods is not freight. Hut if the term 'freight,' as used in a policy of insurance, import the benefit derived from the employment of the ship, then there has been a loss of freight. It is the same thing to the shipowner whether he receives the benefit of the use of his ship by a money payment from one per- son who charters the whole ship, or from various persons who put specific quantities of goods on board, or from persons who pay him the value of his own goods at the port of delivery, increased liy their carriage in liis own ship. The assured may fairly consider that additional value as freight, and so term it in a policy. Then, as to tlie other point, to recover on a policy on freight, the assured must prove that but for the intervention of some of the perils insured against, some freight would have been earned, either by showing that some goods had been put on board, or that there was some contract for doing so. The question was not submitted to the jury whetlier there was any contract between Webster (acting on behalf of Binny & Co. ) and the captain for the shipment of the light goods. The defendant, tlierefore, is entided to a new trial upon thatgrouud; but he must, at all events, have a verdict against him for the amount of the freight on tlie red wood and saltpetre. It would, there- fore, be advisable for the defendant to pay to the plaintiff the costs of this action and *the freight of the red wood and saltpetre, and that he p si-o n should undertake to pay the freight of tlie light goods, if, on refer- •- ' J ence to an arbitrator, it shall be found that there was a contract to ship. these goods." Which suggestion was adopted. In the next case of Devaux v. r.^nson, («) the owner of a vessel effected a policy of insurance on freight "at and from Calcutta, or any port or place on the Coromandel Coast, to any port or place at Bourbon.'''' The vessel put in at Coringa, a port on the Coromandel Coast, for the purpose of repair. The repairs were completed, and a full cargo purchased for the owner, and deposited in warehouses at a place about seven miles from Coringa, ready to be put on board. Whilst in the act of being got out of the dock in which the repairs were done, the vessel received such injury as to make her a perfect wreck, and render abandonment necessary. A verdict was taken for the plain- tiff, subject to the opinion of the Court upon a special case, to which Ave must refer the reader, it being too long for insertion. Lord C. J. Tindal now delivered the judgment of the Court. His Lordship, after stating the facts of the case, said, — "The first objection involves two distinct and separate heads of consideration. First, whether the interest of the assured in the subject- matter of insurance is properly described in the policy as freight. Secondly, if such description is sufficient in the policy, then, whether the interest of the assured iiad commenced before the loys happened. "1. We consider the first question to be set at rest by the decision of the Court of King's Bench in the case of Flint v. Flemyng, (b) and hold it now to be established law that the assured, under an insurance upon freight, may (a) 7 Scott, 507; ."> B. N. C. 519, (/!») 1 B. & Ad. 45. Vol. VIL— H 96 BEGINNING. THE ADVENTURE, ETC. recover tlie profits expected to be made by carrying their ov, n (roods in their own ship upon the voyage insured. "2. The second head of inquiry may be subject to some degree of doubt ^ 1 ''^"'^ difficulty; but, upon the whole, we "concur in opinion that, L *^'''* J under the circumstances stated in the case, the interest of the as- sured had commenced, and the policy had attached at the time the loss took place. The argument -which has been mainly relied upon on the part of the under- writers is this, that, in order to enable the assured to recover u loss upon a policy on freight, there must be a cargo either actually put on board, or ready to be' put on board, under a contract for that purpose ; and in the latter case the ship must also be ready to receive the cargo : and, in this case, it is con- tended by the underwriter that by reason of the loss of the ship before she was out of dock and actually afloat, she was never in a condition or ready to receive the goods on board : the defendant relying on the expression used by Lord Ellenhorovgh, in giving the judgment of the Court of King's Bench, in Forbes v. Jlspinall, (a) that, in order to recover on a policy on freight, a full caro-o must be ready to be shipped, and the ship must be in a condition to receive the cargo. The proposition that the ship must be ready to receive her cargo, had, in that case, an immediate bearing and application to the facts then before the Court; for the policy was on freight upon the homeward voyage, and the homeward cargo was to be made by barter of the outward cargo, and the whole of the outward cargo had not been bartered at the time of the loss, part of it being still on board, so that it was impossible, under those circum- stances, that the homeward cargo could be received on board the ship at the time of her loss. In that case, therefore, the loading of the homeward cargo on board, upon which depended the attaching of the policy, and the commence- ment of the right of the assured to the freight, was not prevented by any of the perils insured against by the policy as the proximate and immediate cause of such prevention, but by a cause altogether without the risks included in the policy, namely, by the inability of the ship to receive the cargo on board, by reason of her being then partly loaded with the outward cargo; whereas, in ^ 1 ^^^ *case now before us, it appears that the ship was on the 14th L J Jliigust quite ready to go to sea, and to receive the cargo on board, that nothing remained to prevent her sailing but the getting her out of dock, and that the loss of the ship, and consequent inability to recei\'e the cargo, was occasioned solely by the endeavour to get her out of the dock and afloat in the river. If, therefore, the loss of the ship in this case was occasioned by any of the perils within the meaning of the policy, the case is distinguishable from that of Forbes v. .ispinall in this, that the immediate cause of preven- tion of taking the goods on board was not occasioned by the inability of the ship to receive the cargo, but by tlie ship being disabled to receive the cargo by one of the perils insured against. For, so far as relates to the cargo, we think it must be considered as in a sufficient state of readiness to be put on board. It was purchased by the assured for the express purpose of the adven- ture mentioned in the policy : it was comparatively useless for any other pur- pose ; and the whole of thc^ purchase Avas completed before the repairs were finished ; and although it hud been deposited in warehouses at seven miles distance, yet it was deposited there for the purpose of being put on board; and it is impracticable, as it appears to us, to lay down any precise rule as to the distance within wliich the cargo must be from the ship at the time of the loss, wliether close to it upon the quay, as in Flint v. FIcmyng, [b) or at a more (a) 13 East, 331. (i) 1 B. & Ad. 45. BEGINNING THE ADVENTURE, ETC. 97 considerable distance, as in the present case. All that it seems necessary to determine with respect to the cargo being, that it must have become the pro- perty of the parties insured by a contract made with a view to its being sent on board, and actually in a state of readiness, reference being had to the nature and description of the voyage insured, to be put on board when the ship arrives at the place of deposit." When the words "at and from" a given place are used in a policy of insu- rance, the risk is always understood to commence upon the ship's first arrival at that place. •■And it has also been held in the case of Chitty v. Selwyn, (a) r- ^,„^ -. that when the ship is insured "at and from" a given place, and L J it arrives at diat place, as long as the sliip is preparing for the voyage upon which it is insured, the underwriters are liable^ but if all thoughts of the voy- age be laid aside, and the ship lie there five, six, or seven years with the owner's privity, it shall not be said the underwriter is liable, for it would be to subject him to the whim and caprice of the owner who chooses to let his ship lie and rot there. And, therefore, in the case of Palmer v. MarshaU, {b) which was on a policy of insurance on the yacht Ruhy^ "at and from Bristol to London,'''' the policy bearing date 28th January, 1831, and it appeared at the trial, that the Ruby, at the date of the policy, was lying in the float at Bristol, where she continued till 17th May, and then commenced her voy- age round the Land's End, and was run down on the 21st May ; and that as the vessel was lying in port complete and ready for sea for three months after the execution of the policy before she sailed, it was a material variation of risk. And in the case of Smith v. Surridge, (c) where a ship, the Resolution, was insured "at and from Pelleiv to I^ondon,'''' it was proved that she remained a considerable time at Pellew to complete her repairs before she commenced her voyage; an objection was made that the delay avoided the policy. Lord Kenyon said, "that if there was any unreasonable delay on the part of the assured, there was no doubt it would avoid the policy," though he afterwards observed, that "the delay was not a voluntary delay, nor such as amounted to the discharge of the policy." But it is not necessary, in making an insurance "at and from" a given place, that the ship should be there at the time : all that is requisite is, that there should not be a delay elapse between executing the policy and her arrival at the place, as to constitute a material variation of risk. In Hull v. Cooper, (rf) *Lord Ellenhoroiigh says, "When a broker proposes a policy to p ^.^^ -. an underwriter on a ship ' at and from' a certain place, it imports L ' J either that the ship is there at the time, or shordy will be there ', but it never was understood that the terms of such a policy imported that the ship was there at the very time, so as to make the assured guilty of deception if she was not. It was a question for the jury whether the delay materially varied the risk in this instance." And in another case of Mount v. Larkins, [a) Lord C. J. Tindul says, "What is the difierence with respect to the alteration of the voyage, whether this unreasonable and unjustifiable delay takes place in the course of the ship's voyage to S'mgapore, or after the ship is at Singa- pore? The underwriter has as much right to calculate on tlie outward voyage in which the ship is engaged being performed in a reasonable time, and without any delay, in order that the risk may attach, as he has, that the voyage insured («) 2 Atk. 359. (A) 8 Bing. 79. (c) 4 E.sp. 25. \d) 14 East. 479. (a) 8 Bing. 122. 98 BEGINNING THE ADVENTURE, ETC. shall be commenced within a reasonable lime after the risk has attached." There has been a very recent case in the Court of Common Pleas on this sub- ject, and in which reference was made to the above case of Mount v. Larkins. This was the case of PhiUipps v. Irving, (b) The action was on a policy of assurance on the ship Broxbournebnrg, "at and from London io Bombay^ and thence to China and back to the United Kingdom, with liberty to touch, stay, and trade at all ports and places on this side, at, or beyond the Cape of Good Hope. The question was, whether the ship had stayed an unreasonable time at Bombay. Tindal, C. J., "It may be collected from numerous cases, that delay before or after the commencement of the voyage insured, is not equivalent to a deviation unless it be unreasonable." When the policy is "at and from an island or district comprehending several ports," a policy on the homeward voyage protects the sailing from one port to another in the same island or district, but the outward voyage ceases after she r *T7S "1 ^"^^ *been moored at the first port. Thus in the case of Camden L J V. Co7vIcy, («) which was an action on a policy of insurance on a ship "at and from Jamaica to London.'''' The ship had also been insured "from I^ondon to Jamaica'''' generally, and Avas lost in coasting the island, after having touched for some days at one port there, but before she had deliv- ered all her outward-bound cargo at the other ports in the island. This was an action on the homeward policy ; and in order to shew at what time the homeward-bound risk commenced, it was necessary to shew at what time the outward-bound risk determined ; and the jury, which was special, after an examination of merchants as to the custom, by their verdict decided tiiat the outward risk ended when the ship had moored in any port of the island, and did not continue till she came to the last port of delivery. In Trin. Term fol- lowing, a motion was made for a new trial, but it was refused, because it was thoroughly tried, and no new light could be thrown upon it, although Lord Mansfield said the inclination of his opinion at the trial was the contrary way. Mr. J. J'Vilmot thought that the jury had put the right construction upon the policy. In a similar case of Barras v. T^ondon Assurance Company., (b) liOrd Mans- field laid down the same doctrine to the jury, viz : that the outward risk upon "the ship" ended twenty-four hours after its arrival in the first port of the island to which it was destined : but tliat the outward policy on goods con- tinued till they were landed. The law laid down in the last decisions was con- firmed in a subsequent case, of Leigh v. Mather, (c) It was an action on a policy of insurance on "the sliip Falliser.,'" and on goods on board thereof on a voyage at and from Georgia to Jamaica.''^ The sliip arrived in Montego Bay, and moored at anchor, and there also the agent of the plaintiff' sold and r ^17Q 1 ''clivercd the greatest part of the cargo to Messrs. Adams and L J Hatton, ^merchants there. Tlie captain entered into a cliarter- party with Adams and Hatton, to proceed from thence to St. Anne's, and there to take in a cargo for London. After unloading the greatest part of the cargo at Montego Bay, and remaining there a month, it was verbally agreed that the remainder of the cargo (which was lumber) should be carried as ballast to St. Anne\ — and accordingly the vessel, after taking in some fustic, proceeded toward St. Anne^s, but was wrecked, and never arrived there. For the plain- (/>) 8 Scott, N. R. 3. This case is more fully mentioned in sec. vii. under the clause giving lil)crty to touch, stay, &c. jtost. (a) 1 W. Black, 417. (Ij) Sit. after Hil. 1782, at Guild. Park Ins. 74. (c) Sit. at Guild, after Mich T. 1795. Park Ins. 74. BEGINNING THE ADVENTURE, ETC. 99 tiff it was urged, thiit in such an insurance the ship might go from port to port; :ukI that at all events the goods were protected by the poUcy, till they were all discharged and safely landed. Lord Kenyan was clearly of opinion, and was confirmed in that opinion by a special jury, to whom his lordship particularly referred on this occasion, that the risk on the ship ceased afler she had been moored at anchor twenty-four hours in the first port of the island, for the pur- j)ose of unloading: and the facts disclosed in this case having manifested that Montego Bay was also the original destination of the cargo, and that its not being wholly delivered there was only prevented by a new agreement, the loss of the goods cannot be recovered under this policy of insurance. A ship inr sured to Jamaica generally, cannot be permitted to go round the whole island,^ from port to port, for the purpose of unloading her cargo, especially where, as in this case, the owner of the ship and goods is the same person. The plain- tiff was nonsuited. In the case of Cruichshank v. Janson (a) it Avas held, that under a policy "at and from" an island, a ship is protected in going from port to port in the island. So, in a case of IVarre v. Miller, (Jj) which was an action on a policy of "insurance on freight, from Grenada io London^'''' it was proved that there was one custom-house only for the whole island of Grenada; that the vessel arrived in safety in Grenada, and discharged a part of her cargo at thi'ee dif- ferent bays, and *she was proceeding to a fourth, to discharge the p si on i residue of her outward cargo (the captain having previously made L J cng;igements with several persons for the homeward cargo, amounting very nearly to a full cargo,) when she was lost by perils of the sea. It was held that the vessel, at tlie time of the loss, was proceeding to the fourth bay, for a purpose connected with the voyage insured, and that the underwriter was liable. It may here be observed, that, although in the previous cases of Forbes v. Cowie, (a) and Forbes v. Aspinall, {b) it was decided by Lord Ellenborough^ that a ship could not be said to be ready to take in her homeward cargo, whilst she had her outward cargo on board, so as to make the policy on the freight of ., the homeward cargo attach, in those cases the outward cargo had to be bartered I! for the homeward as it was landed, whereas in the present ease the captain had entered into contracts for the homeward goods before starting for the fourth bay, and his sailing round the island was in the course of his preparing to take them in. As the attaching of the risk frequently depends upon a ship's arriving at or sailing from a particular port, it is material to consider what it is that properly constitutes a port, in construction of law. In the case of Constable v. Noble (c) it was held that a policy "at and from" ;! place, for instance, from Lyme to London, which not only designates a town but a port also, compreliending a large district of coast : so that Bridport, which is eight miles nearer L^ondon than the town of Lyme, does not protect a cargo laden any where within the limits of the port, such as Bridport, but must be taken to refer to the town itself. Mansfield, C. J. says : — "If the plaintiff in this case could have proved an usage for ships to load at Bridport, upon a policy 'at and from Lyme,'' it might have assisted him, but no such usage was proved here." *In the case of The Sea Lisurance Company of Scotland v. r- ^.,g. -, Gavin, (a) where a brigantine was insured "to Barcelona, and L -' from thence to other ports in Spain, to a port in Great Britain,^'' and she put (a) 2 Taunt. 301. (6) 4 B. «fe C. 538. (a) A7itc, p. 166. (6) Ante, pp. 161, 168, 174. (c) 2 Taunt. 403 ; anil see Payne v. Hutchinson, 2 Tauiit. 405, n. {a) 4 Bligh, N. S. 578. 2 Dow. & Clark, 125, S. C. 100 BEGINNING THE ADVENTURE, ETC. into a place, situate in the recess of a bay, having a custom-house and port- captain, and having also warehouses and a jetty, with accommodation for small vessels only, there being, however, convenient anchorage for large ones in the roadstead ; and the ship, having been lost in the roadstead, this was held to be a port within the meaning of the policy. And in the important and recent case of Brown and others v. Tayleur, (/;) in which the meaning, in construction of law, of the term "port," was fully discussed by the Court of King's Bench. It was an action on a policy of insu- rance on a "ship, at and from her port of lading in North America to Liver- pooV On the trial, before Lord Benman, C. J., at the sittings in London, after Trin, Term, 1834, it appeared that the ship was launched at Cocagne, in the province of New Brunswick, at the end of June, 1828; that a kw days after she was afloat she began to take in her cargo of timber at Cocagne, and continued to do so for three weeks. During this time the vessel was described as lying "in the stream, inside of Cocagne bar." On the 1st August she sailed from thence for Buktouche, situate five or seven miles distant, to com- plete her loading. She arrived there in a few hours. Cocagne and Buktouche are situate in different creeks of the same bay. Buktouche is not in the line of voyage from Cocagne to Liverpool. The vessel lay off Buktouche three weeks, to take in the remainder of her cargo ; and returned to Cocagne on the 22nd August, to receive provisions, and get ready for sea. She sailed on the 31st August, and was lost on the voyage, Cocagne was described by the wit- nesses as a "harbour" and "a port," and Buktouche as a "port;" but neither r *182 "1 ^^'^^ ^ custom-house, though there were officers *of the customs at •- -^ both places; and it appeared that they were both within the juris- diction of the custom-house of St. Johii's, Neiv Brunsivick. It was con- tended for the defendant that there had been a deviation; and the Lord Chief Justice gave the defendant leave to move to enter a nonsuit on this objection. After argument at the Bar, liord Denman. C. J., said, — "I think the rule for a nonsuit must be made absolute. It was clear, on the close of the evidence for the plaintiffs, that Cocagne and Buktouche were two distinct places, and two places at each of which there might be a loading." Patteson, J. — "I am of the same opinion. We cannot construe the words 'at and from her port of lading,' as if they were 'at and from her ports :' the expression used points out one single place. Nor can we adopt the technical meaning to be ascribed to 'port,' as signifying all that is subject to one custom- house or one port jurisdiction ; the result of which would be, that a ship, under such a policy as this, might sail to every port of a district so situated. The cases which explain the meaning of the word 'port' are many, (o) Here I tliink that ' port' means the same as place, and that the vessel's place of lading must be one place. When she once began to take in her cargo at Cocagne, that was her place of lading, and her removal afterwards was a deviation. The cases of insurances 'at and from Jamaica^ (referred to in the argument) do not apply. If the policy in those cases had said, 'at and from her port of lading in Jamaica or Grenada,^ the commencement of the voyage would have been restricted. In construing the word 'port' as the place of lading, I do not mean to say that, if a ship were at a particular quay on a river, as at LJverpool, and merely moved a mile or two off to another quay, that would be a deviation, because the vessel would then bo all the time in one port or place ; but it is a deviation if she removes to a different town, a different place of habitation, and a point which might itself be her place of lading." (i) 9 A. &E. 241. (a) His Lordship referred to the case of the Sea Insurance Company of Scotland v. Gavin, ante, p. 181. BEGINNING THE ADVENTURE, ETC. 101 *Mr. J. TVilliams and Mr. J. Coleridge, concurred, and the rule j- +ij^.^ -. for the nonsuit was made absolute. •- J In policies, the words usually employed to express the commencement and end of tlie risk are tliese :-^" Beginning; the adventure upon the said goods and merchandises, from the loading thereof on board the said ship, and so shall continue and endure until the said ship, with the said goods, be arrived at , (her port of delivery) and until the same shall be discharged and safely landed." But this clause is frequently varied by the agreement of the parties; and sometimes the risk on the goods is made to commence from the loading thereon at a given place, in which the policy will attach only upon such goods as are there put on board, and not on goods sliipped elsewhere, though they are the very goods meant to be insured, and were on board at the place speci- fied by the policy. This was fuUv settled in the case of Robertson v. French^ [a) in which Lord Chief Justice Ellenborough delivered an elaborate judgment, and very fully considered the rules which are to govern the construction of policies of insu- rance, and the effect of the written words upon the usual printed form of this species of contract This was an action on a policy of insurance, [b) effected by the plaintiffs as agents, "lost or lost not, at and from all, a^y^ (^^ every port and place roherc and whatsoever on the coast of Brazil, and after the \lth day of September, to the Cape of Good Hope, upon any kind of goods and merchandises, and also upon the body, &c., of the ship Chesterfield, &c. ; beginning the adven- ture upon the said goods and merchandises from the loading thereof aboard the said ship, at all, any, or every port and place ichere and ivhatsoevcr on the coast of Brazil, and from the 17th day of September, 1800, and upon the said ship, &c., in the same manner; and so shall continue and endure during her abode there upon the said ship, &c., and further until the said ship, &c., and goods, *&c., shall be arrived at Simon'' s Bay or Table Bay, r- ^104 -1 both or either, ivith liberty to ccdl at St. Helena, or elseichere, L J upon the said ship, &c. , and upon the goods, &c. , until the same be there dis- charged, &c. And it shall be lawful for the said ship, &c., in this voyage to proceed and sail to and touch and stay at any ports or places whatsoever, par- ticularly backwards and forwards, and to and from those under the Portu- guese Government, or any port, place, island, or elsewhere on the coast of South America, tvifhout being deemed any deviation, and without prejudice to this insurance. The said ship, &c., goods, &c., valued at 15,680/., being upon goods, ship, and freight, separately valued as tender. And in case of capture, detention, or seizure, by any power tvhatever, to pay a total loss tipon receiving documents of her being carried into port, and without inquiry into the regularity or irregularity of her proceedings ; and with liberty to sell, barter, exchange, load or unload the interest, in part or whole, at the island of St. Catharine, or elseichere, where, and ivhatsoever. Touching the adventures and perils, &c. [This part of the policy was in the common form.] At the rate o( four guineas per cent., to return three pounds and ten shillings should the ship have arrived, or this risk otherwise have ceased, on or before the 17//* of September. In witness, &c." At the bottom of the policy, the goods were valued at 13,310/.; ship at 1,550/.; and freight at 814/.' The plaintiffs declared as agents of Robertson and Walker, upon a loss by the arrest and restraint of the king's ships. And at the trial before Lord Ellenborough, C. J., at the Sittings after Hilary Term, at Guildhall, it was (a) 4 East, 130. \b) The words in italics were written, the rest of the policy set out was in the usual printed form. 102 BEGINNING THE ADVENTURE, ETC. admitted that the goods were of the value insured, and had been put on board the ship Chesterfield at the Cape of Good Hope. Much of the evidence turned upon the question, whether the object of the voyage were to trade with the Spanish setdements in South America; Spain being then at war with this country? or, whether it were only in contravention of the trading laws o{ Por- tugal? But nothing turned upon that point in the case as presented for the consideration of this Court. r *18^ 1 *'^ ^^ sufficient to state, that after the cargo had been taken in at L -J the Cape of Good Hope, the ship went from thence, on the 7th of February, 1800, to Benguela, on the coast of Africa, and afterwards to St. Catharine' s, on the coast of Brazil, on the 30th of May; then to Rio Janeiro on the 27th ol' Jidy: staid tliere upwards of two months, and remained on the coast till the latter end of November, when, on suspicion of illicit trading with the Spanish enemy, she was taken possession of by some of his Majesty's ships of war, and carried again to the Cape, with the original cargo on board, where she was libelled by the captors in the Vice Admiralty Court tliere, on which the assured abandoned to tlie underwriters ; and the ship, after being liberated by the sentence of the Court, was sold there, and has since arrived in England, about October, 1802. Lord Ellenborough, C. J., now delivered the judgment of the Court. "This rule was moved for, secondly. That the policy on this ship and cargo never attached ; the adventure on the cargo being by the terms of the policy made to commence from the loading the goods aboard the ship on the coast of Brazil; an event which, as it was contended by the defendant, never hap- pened, inasmuch as the goods were not loaded there, but at the Cape of Good Hope. And it was also contended on the part of the defendant, that the adven- ture on the ship, being by the terms of the policy made to begin in the same manner with that on the goods, could of course have no commencement, if that on the goods never attached. [After stating the policy as before mentioned, his Lordship proceeded.] "In the course of the argument it seems to have been assumed that some peculiar rules of construction apply to the terms of a policy of assurance which are not equally applicable to the terms of other instruments and in all other cases : it is therefore proper to state upon this head, that the same rule of con- struction which applies to all other instruments, applies equally to this instru- ment of a policy of insurance, viz : that it is to be construed according to its r *18r 1 sense and ^meaning, as collected in the first place from the terms L J used in it, which terms are themselves to be understood in their plain, ordinary, and popular sense, unless they have generally in respect to the subject-matter, as by the known usage of trade, or the like, acquired a peculiar sense distinct from the popular sense of the same words ; or unless the context evidendy points out that they must in the particular instance, and in order to effectuate the immediate intention of the parties to that contract, be understood in some oUier special and peculiar sense. The only difference between poli- cies of assurance, and other instruments in this respect is, that the greater part of the printed language of them, being invariable and uniform, has acquired from use and practice a kncnvn and deiinite meaning, and tliat the words super- added in Avriting (subject indeed always to be governed in point of construction by the language and terms widi which they are accompanied) arc entitled never- theless, if there should be any reasonal)le doubt upon the sense and meaning of the whole, to have a greater clfect attributed to th(Mn than to the printed words, inasmuch as the written words are the immediate language and terms selected by the parties themselves for the expression of their meaning, and the printed words are a general fornuila adapted e([ually to tlieir case and that of all other contracting parties upon similar occasions and subjects. BEGINNING THE ADVENTURE, ETC. 103 "As to the second point made in tliis case, viz : tliat the policy on the ship and goods never attached : it is asserted on the part of the defendant, that the adventure in question as to its commencement, accordino; to the natural and obvious meanin;r of the language and terms of tlie policy, depends upon and is limited by the co-existence and concurrence of three several circumstances, viz : one of place, one of time^ and one of event or fact. And first of place, that it is to attach on the coast of Brazil: secondly, of time, that it should attach there after the 17th of September: and thirdly, of event, that the goods should have been dicn loaden at some port or place on the coast of Brazil. The adventure upon the ship is in terms declared to begin "in the same ^ ^.,g^ -, *manner," i. e.. at the time, and i>lace, and after the happening of L -' the events before described and specified in respect to the cargo. But it is argued on the part of the plaintiffs, that the latter circumstance of event or fact, as 1 have termed it, docs not alfect the commencement of this adventure : and that the words 'from the loading thereof aboard the said ship,' are either to be rejected wholly: in which case the policy will stand thus, 'beginning the adventure upon the said goods and merchandises at all, any, or every port and place where and whatsoever on the coast of Brazil' without regard to the place at which such goods may have been in fact antecedently laden ; or that the words 'from the loading theieof aboard the said ship 'at,' ' are to be under- stood from the time of the ship's being with the goods laden on board her, or having such her cargo on board her, at the place mentioned in the policy, i. e. , in this case, at the coast of Brazil. The ol)jection to the first of these con- structions (besides the ditTiculty of wholly rejecting words having an apparently significant meaning, and referring distinctly to an act to be done at a given place) is stated to be this, that if the cargo insured be understood to be generally a cargo at, or a cargo on board on the coast, and not one actually and originally taken in upon the coast, the policy would in that case cover the risk on two successive cargoes, i. c., on the outward cargo with which the ship shoidd be in a loaded state on the coast after the 17th of September, and the homeward, or that which it should take in there ; and that it would not be just towards the underwriter so to construe the words, as to cover thereby in his risk two suc- cessive cargoes, when one original cargo only, according to all the ordinary usages of trade and practice of insurance as applied to such form of words must 1)6 understood to be meant, in addition to the liberty of sale, barter, and exchange, given by a subsequent part of the policy : and further to reject emphatical words, in order to accomplish a construction so much to the appa- rent disadvantage of the underwriter. And indeed if only one original cargo were meant to be covered, a Brazil cargo appears to have the best r- «igo -i *claim to be considered as that one. For it would be preposterous L J to consider the policy as meant, in preference to any other one cargo, to cover a cargo taken in at the Cape of Good Hope, and which should remain unpro- tected as far as this policy is concerned, wherever it should be, till the 17th of September, and from that day, if it were then on the coast of Brazil, should be protected there, and during the course of barter, sale, and exchange at the island of St. Catharine and elsewhere, and during its reconveyance afterwards back to the Cape from which it had originally proceeded. The same objection in a great measure applies to the second construction, which wiUiout wholly rejecting the words 'from the loading thereof aboard the said ship,' considers the goods as the suliject of insurance wlien, after the 17th of September, they should be in a loaded state at the coast of Brazil : for this construction would equally exclude the possibility of covering by this policy an homeward cargo taken in at the coast of Brazil to be carried to the Cape, provided the ship should have arrived on the coast of Brazil with an original cargo on board ; unless indeed two successive cargoes could be covered by a policy conceived in 104 BEGINNING THE ADVENTURE, ETC. these terms. But the most natural construction of the words, if the immediate letter of them were less directly applicable to a cargo taken in on the coast, seems to be to make them apply to a cargo to be carried to the terminus ad qiiem, upon and within the immediate limits of the voyage described in the policy, rather than to a cargo conveyed, as it should seem, in the course of useless circuity from the place from which the ship originally proceeded before the voyage in question had commenced ; continuing, except inasmuch as it might be altered by barter, sale, and exchange, on board during the voyage, and to be delivered at the place at which the voyage is at last appointed to ter- minate. But tlie question naturally occurs, is there any thing to be found in the policy which assigns to these words a sense, thus apparently diilerent from the ordinary grammatical sense of them } And looking, as we are obliged to r *isq 1 ^°' ^^ ^^'^ policy, and to tlie policy alone, in order to collect the I- J ^intention of the parties as to the commencement and duration of the adventure thereby protected, we cannot feel ourselves at liberty to disjoin in point of effect and construction the words, 'at all or any port or place on the coast of Brazil,' from tbe words, 'from the loading thereof aboard the said ship,' by which they are immediately preceded, and with which by imme- diate context they appear to us to be necessarily united. If the same Avords had not been thus incorporated with the body of the text of the printed words, and made to form therewith one entire and continued chain of words, and one unbroken sentence of intelligible expressions all applicable to the same suliject- matter, it might perhaps have been open to us to have given them a different meaning, and to have considered them as words written in the margin of the policy, (and applying, therefore, indefinitely to the whole of the policy, and not to any particular part of it) are usually considered ; that is, as controlling the sense of such parts of the printed policy to wliich, in sound construction, and by reasonable reference, they may appear to apply. As, for instance, where the word ship is written in the margin of the policy, or freight, or goods: in such case tlie general term of the policy, applicable to other subjects besides the particular one mentioned in the margin, are thereby considered as narrowed in point of construction to that one. And this is done in cases where the subject meant to be insured is still more remote from 'ship and goods,' the only subjects of insurance in the printed policy, viz : where the object of the insurance, as declared by the marginal memorandum, is, money lent on bot- tomry or respondentia, or the like : the meaning of which marginal memo- randmn may be translated thus : — We mean to insure the subject so named, '•freight'' for instance, arising and accruing during the limits of the voyage within described, from the carriage of goods on board the ship Avithin men- tioned, against the perils within enumerated, and upon the premium herein specified. In other words, we adopt die general language of the policy, as far r *iqn ~i ^s *it may serve to effectuate this object, and no further. Had, L *^" J indeed, the subject-matter of the insurance itself, or the character, situation, and description of the persons making it, or any other circumstance attending the insurance pointed out and required a narrow rule of construction, the ordinary effect of these words might perhaps have been in such case con- trolled : but can any such restrictive rule of construction be applied to the words 'at all, &c., ports and places on the coast of Brazil,' as they occur here, with- out shaking the fundamental rules of construction as applicable to all deeds and instruments whatsoever? Feeling, therefore, the impossibility of assigning to these words any oUier pbu-e in or with rclcTence to this contract than what the parties themselves have done, and feeling the impossibility of assigning to them in that place, and wiUi die context which attends them, any other meaning than what they obviously and in Uieir plain grammatical sense import, we are obliged^ to say that the adventure could only attach on goods and ship after a loading ol BEGINNING THE ADVENTURE, ETC. 105 goods had taken place on the coast of Brazil: and as that circumstance or event never took pUxce in the present instance, that the policy of course never attached at all. It certainly was in the contemplation of the parties that the risk meant to be insured might have ceased before the 17ih of September, 1800, and a return of premium is provided in that event: but I do not think that the construction of the rest of the policy is so materially aft'ected by this stipulation as to require any particular observations upon it. Upon the whole, we are of opinion that this rule, which calls on the plaintiff to shew cause why the ver- dict should not be set aside, and a nonsuit entered, must be made absolute." — Rule absolute. The subject treated of in the preceding case, namely, whether a policy from A. to B., beginning the adventure upon the said goods, from the loading thereof aboard the said ship shall cover a policy for goods loaded antecedently to the vessel being at A., has been the subject of much discussion from the time of liOrd Mansfield to the present. *Ia Hodgson V. Richardson, [a) the case was, that the ship was r- ^iqi -i insured at and from Genoa, (the adventure to begin from the load- L J ing to equip for this voyage) liable to average : her loading consisting of potash, verdigris, and cotton, and other perishable commodities. This loading was put on board at Leghorn, the 10th August, and the vessel had lain at Genoa about five months, being originaUy bound for Dublin; but losing her convoy, she put into Genoa the 13th August, and lay there till the 5th of January, when she sailed. The insurance was made on the 20th January, at which time the facts were known to the assured, but not communicated to the under- writer. A few days after she put to sea she was shattered by a storm, and the cargo considerably damaged. The assured brought his action on the policy; and the jury found a verdict for the plaintiff. And now Morton and Dunning moved (Eas. Term, 4 Geo. 3, K. B.) for a new trial, contending that the policy was bad "ai initio'''' for want of a due disclosure of the circumstances; as Genoa, from the wording of the policy, imported to be the port of loading : and the goods were liable to have taken damage by having lain so long aboard : and therefore, although the present loss actually happened by a storm, still the policy being originally bad, the assured cannot recover. Lord Mansfield, C. J. : "-In this case the verdict ought not to stand. The question is, whether there was a sufficient disclosure, i. e., whether the fact concealed was material to the risk run. This is a matter of fact, and, if material, the consequence is matter of law that the policy is bad. Now who can say, that no risk was run during the five months' stay at Genoa, or no damage happened in that period? The policy is founded upon a misrepresentation ; the ship is insured at and from Genoa to Dublin, the adventure to begin from the loading to equip for this voyage. This plainly implies that Genoa was the port of loading. And at the trial all the witnesses said, that it was material to acquaint the under- writer whether *the insurance was to be at the commencement or r *iqo "i the middle of the voyage." Wilmot, J. — "The fact disclosed by L -• this policy is not true, viz : that Genoa is the loading port, for so it must be understood. And in such cases I will not speculate on the materiality or imma- teriality of the fact. Not but I think the length of the stay at Genoa is very material in the case of such perishable commodities." Rule for a new trial, absolute. In the case of Robertson v. French, it may be remembered that the loading was confined to a particular place, beginning the adventure upon the said goods from the loading thereof aboard the said ship at all, any, or every port or place {a) 1 W. Black. 463. 106 BEGINNING THE ADVENTURE, ETC. where or whatsoever, on the "coast o^ Brazil f whereas the goods were not loaded there, but at the Cape of Good Hope. In the case of Horny er v. Lushington, (h) the action was on a policy of insurance at and from Gotten- burg toFiga, or any ports in the Baltic, upon "goods and ship Jlmelia" beginning the adventure upon the goods from the loading thereof aboard the said ship at Gotfenburg. The declaration averred that on the 13th September, 1809, the ship M'as in good safety at Gottenbiirg, and that the cargo in the policy and memorandum mentioned was of great value : and that afterwards the ship, with the cargo, set sail from Goltenburg, and arrived at Higa., where with the cargo she was taken, arrested, and detained by the emporer of Russia, and wholly lost. At the trial, before Lord Ellenboroiigh, C. J., at the Lon- don s\i\\\\vs ^hev 'Tv'm. Term, 1811, it appeared that the goods insured were laden on board the ship in the port of London. Lord Ellenborovgh directed the jury to find a verdict for the defendant, reserving leave to enter the verdict for the plaintiff'. After the argument upon the point in the case, on the subject of our present inquiry. Lord EUenborough, C. J., said: "When this ques- tion was first agitated^ T had a difficulty in putting the construction which is r ^'iQQ 1 "°^^ contended for upon words 1 really believe bore a different L ^^"^ J ^construction in the commercial understanding of those who used them. However, the Court came to a decision on the point in the case of Bobcrtson v. French: and this question now comes before us after the case of Spitta V. IVoodman. (a) It is therefore no longer doubtful what construction is to be put upon these words. It is to be considered also in aid of such con- struction, that the goods may have been damaged in their transit from L^ondon to Gottenbiirg, which might cast upon the underwriter a damage occurring anterior to the commencement of the risk. It seems to me, therefore, that under the terms of this policy, the risk upon these goods never attached, and there must be a proportional return of premium." Grose, J. concurred. Bay- ley, J. : "In De' Symonds v. Shedden, (b) the Court of Common Pleas seems to have entertained the same opinion." And, at length, both in the Court of King's Bench, and in the Common Pleas, it was decided, that where the words of the policy were general "at and from a place," and the adventure on the goods to begin from the loading thereof on board the ship, (without saying where) as in Spitta v. Woodman, (c) and Langhorn v. Hardy, (d) and Mel- lish V. Jillnutt, [c) goods loaded on board before the arrival at the place named as that from which the risk is to commence, will not be protected. But wherever the Court can collect from the circumstances of the case, or from tlie words used, that it was the intention of the parties to cover such ante- cedent loading, they will give the policy that construction. Thus in the case of Nonnen v. KettleivelU (/) which was an insurance on sugar free of particular average, at and from Landncrona to Wolgast, the underwriters had been informed that part of the goods had been shipped on board the same vessel some months before, at Gottenbiirg. Part of the cargo was taken out of the ship's hold, and landed on the quay, and replaced in the ship. A sufficient quantity ^ was taken out to enable *the Custom-house ofllicers at Landscrona L ^'^'* J to examine the whole cargo on board, the duties on Avhich were paid. The Court held this to be an actual unloading and reloading a part, and virtual reloading of the whole, as far as unloading and reloading were necessary for the purpose of ascertaining and paying the duties at Uiat port, which accord- (/;; 15 East, 46, ante, p. 158. (a) 2 Taunt. 416. {Ij) 2 Bos. -| King's Bench, in the case of Hunter v. Leathley. («) The policy L - -^ J *^y^g effected, "at and from Singapore, Penan g, Malacca, and Bafavia, all or any, to the ship's port or ports of discharge in Europe, with leave to touch, stay, and trade at all or any port or places whatsoever and wheresoever, in the Bast Indies, Persia, or elsewhere, upon goods on board certain vessels beffinninji the adventure from the loading thereof on board the said ships as above." And "it should be lawful for the said ships, &c.', in that voyage, to proceed and sail to, and touch and stay at any ports or places, whatsoever and wheresoever, in any direction, and for any purpose necessary or otherwise, particularly Singapore, Penang, Malacca, Batavia, the Cape of Good Hope, and St. Helena, with leave to take on board, discharge, reload, or exchange goods and passengers, without being deemed any deviation from, and without prejudice to that insurance." The ship took in part of her cargo at Batavia, then went to Sonrabaya, another port in the East Indies, (not in the course of the voyage from Batavia to Europe, and not specified by name in the policy) and took in other goods, and then returned to Batavia, whence she afterwards sailed for Europe, and was lost by perils of the sea. The case was tried before Tiord Tenterden at Guildhall, and a special verdict was found by the jury. The judgment of the Court, after taking time to consider, was deliv- ered by Lord Tenterden, C. J. — "It is obvious, on the perusal of this policy, in which so many places of departure, and four ships are mentioned, with liberty to declare and specify the particular ship and goods afterwards, that at the time of the insurance, the assured must have been ignorant of the particu- lar port in the East Indies, at which goods for him would be shipped, as well as of the name of the ship, as of the species of goods ; and must therefore have intended to liave protected himself against loss, whatever miglit be the sort of goods, by wliichsoever of the four ships they should be sent, and at r *99'i "1 ■^v'l'^tsoever ])lace or places in tlie East they *might be put on L J board ; and tlie defendants subscribing such a policy must be under- stood to have intended to afford a protection equally extensive, if the terms of the policy will admit of such an effect being given to the instrument." His Lordship, after referring to the rule of construction of marine policies laid down by Lord Ellenborough in Robertson v. French {It) proceeded thus : "Such being the objec-t of the assured and the rule of construction, we are to look at the policy in order to gather from thence whether or no the whole or any part of the plaintiff's interest can, consistently with such decisions as have taiien place on similar subjects, be considered as protected. The plaintiff con- tends that his whole interest, as well in the goods shipped at Sourabaya, as in (Jj) 2 M. & S. 26. (a) 10 B. & C. 858. {b) See ante, p. 183. IT SHALL BE LAWFUL FOR THE SHIP, ETC. 123 the goods shipped at Batavia^ is protected. The defendant insisis that no part is protected ; or, supposing the goods shipped at liatavia to be protected, that the shipment at Simrabaya is not. The grounds npoi^ which it was coiitcMided that no part was protected were, first, that tlie poHcy did not attach, tlie goods shipped at Butavia being, as it was urged, sliipped, not for a voyage to .flnt- iverp, but for a voyage to Sourabaya and l)ack to Butavia; from whence a distinct voyage to Anliverp commenced. Secondly, supposing the policy to have attached on those goods while the ship remained at Bafavia, yet the voyage to Sourabaya was a deviation. The ground on which it was contended that the goods shipped at Sottrubaya were not protected was, that Sourabaya could not be considered as a port of loading, or terminus a quo within the mean- ing of this policy. We are of opinion, however, that goods shipped at Batavia were in reality shipped for a voyage to ,flntwcrp by way of Sourabaya^ and that the ship's first departure f(;om Batavia was on such a voyage. And considering the very extensive powers given by this pohcy both in the first and last clauses, we think the sailing to Sourabaya was not a deviation ; it could not be so *deemed without a direct contradiction to the terms of the policy, it p s:904. ~i being clear that tlie ship sailed to Sourabaya for the purpose and L "^ J in the prosecution of tlie oriijinal adventure contemplated by the policy. And upon these points the principle of the decision in MeUinh v. AndrewSi, (a) is applicable to the present policy; the only difference between the two cases being, that in MeUish v. Andreu^s the places of discharge or termination of the voyage, and the course of sailing for that purpose, were left undefined, by reason of the uncertain state of commerce in the Baltic^ and in the present case the places of shipment or commencement of the voyage, and the course of sailing for that purpose, are left undefined, by reason of the ignorance of the assured as to those particulars. The order in which the four places named stand in die policy, shews plainly that a voyage in the direct geographical or nautical course was not thought of, it being clear that it was thought possible that goods migiit be laden at each of those places. AVith regard to the goods shipped at Sourabaya, the question is, whether that place c;in be considered as a loading port or terminus a quo within the meaning of the policy. Sourabaya is certainly a place in the E(tst Indies, and so within the meaning of the words used in that part of the policy wherein the voyage is described. But it is said, that the words ''ports and places in the East Indiis, Persia, or elsewhere," not following directly after the four places first named, as the termini a quibus, but after the places named as the termini ad quos, and being introduced by the words 'with leave,' &:c., cannot be understood to designate places of shipment of the plaintiff's goods, but only places to which the ships might be permitted to sail for some other purpose. On the other hand, it was contended that those words might, according to two decided cases, which I shall presently mention, be considered as places of shipment, and that in this particular policy they must be so considered, because the *places to which the ships mieht sail without deviation or preju- p sook "i dice to the in-urance, are afterwards mentioned and provided I'or L -' by the policy in a distinct clause, of which the language is more loose and comprehensive than the language of the first clause. Now, if we suppose that a shipment of goods by the plaintifr in some place that might be imagined, as, for instance, on the coast of Brazil, would not be a shipment within the first clause, and so not be protected by the policy; but that, nevertheless, if the ship, after receiving the plaintiff's goods, had sailed for that coast for some other lawful purpose, the benefit of the policy would have been saved by virtue (a) 2 M. & S. 27, ante, p. 221. 124 IT SHALL BE LAWFUL FOR THE SHIP, ETC. of the latter clause ; the two clauses will each have a distinct and appropriate sense. And without determining^ what effect the latter clause miffht have on a question as to the places of shipment of the plaintiff's goods. Ave are clearly of opinion that the words 'ports and places,' &c. in the first clause may and ou^ht to be understood as such places. And the two cases of Violett v. Allmitl^ (a) and Barclay v. Sler/ins:, (b) are plain authorities to shew that a place mentioned after the words 'with liberty to touch,' &;c., may be considered as a loading port. For these reasons, and upon these authorities, we think the plaintiff entitled to recover in respect of all his goods," (c) But where, in Lavabre v. JfVson, and Lavahre v. Walter, (d) an action upon a policy, the voyage insured was described in these words : " at and from Port L' Orient to Pomlir.herryn Madras and China, and at and from thence back to the ship's port or ports of discharge in France, with liberty to touch, in the outward or homeward-bound voyage, at the isles of France and Bour- bon, and at all or any other place or places what or wheresoever." In a sub- sequent part of the policy there was this clause, "and it shall be lawful for the r *2'2r 1 ^^^^ ^'^^P ^'^ *^'^'^ voyage to proceed and sail to, and touch and stay L J at *any ports and places whatsoever, as well on this side as on the other side of the Cape of Good Hope, without being deemed a deviation." The ship arrived at Pondicherry, and after remaining there one month, she sailed for Bens^al, instead of going to China ; having wintered at Bengal, and received considerable repairs, she returned to Pondicherry ; and having taken in a homeward-bound cargo, proceeded in her voyage back to Z' Orient, but was taken by the Mentor privateer. The question in that case, as far as it is material to us in ttiis part of our work, was, wliether the voyage to Bengal was insured within the construction of this policy ? The reporter of this case says, it was insisted in the opening, for the plaintiffs, that, under the general liberty given by the policy, of touching at all places whatsoever, the vessel might go to Bengal, which, by the operation of those words, was as much part of the voyage as if it had been expressly named. — Lord Mansfield, how- ever, having intimated a clear opinion, that the general words v/ere, by the expressions of "in the outward or homeward-bound voyage," and "in this voyage," qualified and restrained so as to mean all places whatsoever in the usual course of the voyage "to and from the places mentioned in the policy," this ground was immediately abandoned, and never further mentioned by the counsel for the plaintiffs in the progress of these causes. So in a case of Richardson v. London Assurance Company, [a] upon an East India captain's investment, to all or any of the ports or places, &:c. until arrived at the last place of discharge on the outward cargo. Lord EUenborough held that the outward voyage terminated, where all the company's outward cargo was discharged. There has been a very recent case of Phillipps v. Irving, (b) which is an important case on this subject. The action was on a policy of insurance on r *227 1 ^^^ ^'^^f Broxbourneburg, "at and *from London to Bombay, and L -^ thence to China, and back to the United Kingdom, with liberty to touch, stay, and trade at all ports and places on this side, at, or beyond the Cape of Good Hope.'" The defendant pleaded first, (which was the only (rt) 3 Tiiunt. 419. {I,) 5 M. & S. 6. (<•) This case was afterwards removed by error into tlic Exchequer Chamber, and the judf^mont of the Court above affirmed, 7 Biiig. 517, (r/) 1 Doug. 284. (a) Camp. 94. (6) 8 8cott, N. R. n, ante, p. 177, where tlie case is briefly mentioned in conjunction with Mount v. Larkins, to which it is likened in this case, for the question respecting unreasonable delay. IT SHALL BE LAWFUL FOR THE SHIP, ETC. 125 plea on which any question was raised,) that tlic sliip arrived at Bornhuy, remained tliere an unreasonable time, and that the assured did not duly j)rose- cute the voyage insured, and, thercifore, was guilty of a deviation. At the trial, the facts applicable to that plea were withdrawn from the consideration of the jury, and it was agreed tliat it should be reserved for the Court to deter- mine ui)on the facts applicable to the first issue, whether or not there had been an unreasonable delay in the prosecution of tlie voyage as to discharge the underwriters. The jury havinir returned a verdict for the j)laintifr. A motion, (pursuant to leave reserv(nl) was made to enter a nonsuit or a verdict, on the first issue, for the defendant. On the argument, it was contended that the delay at Bombay from tlie time of the completion of some repairs which had been considered necessary, until the 2nd November, at all events, was unreasonable, so far as concerned the underwriters, and clearly amounted to a deviation. [^Crcssivc/l, J. — "The captain had a right to staj'- at Bombay a reasonable time, with reference to his owner's interests."] But the reasonableness of the time must be estimated by the ordinary state of trade : the underwriters do not, by their contract, hold themselves responsible for delays resulting from lowness of freight. [Tindal, C. J. — ''Tlie question, as it strikes me, is, whether or not the master waited at Bombay longer than was reasonable, regard being had to the interests of his employers, and the duty he owed them : and if not, whether that was not one of the contingencies covered by the policy."] The owners might protect their interest by a time policy. [^Tmdal, C. J. — "The policy provides that the ship may touch, stay, and trade at all ports and places, &c. How lono- is the master to stay.' The limit must clearly be with reference *to the r- ^„nQ -, advantage of the owners. A stay that would be reasonable with L J regard to the owners' interests, may surely be reasonable in the contemplation of the underwriters."] \_Cresswell, J. — "What is the ordinary state of trade at Bombay?''''^ The delay was conceded to be extraordinary and out of the usual course, and unreasonable, unless justified by reason of the circumstances deposed to by the captain and the mate. [Cressivell, J. — "The question is one of considerable importance to shipowners and underwriters, and more especi- ally as regards ships engaged in the Afrir.an trade, where the exorbitant demands of the native princes frequently occasion many months' delay."] The Court took time to consider then- opinion, which was now delivered by Tindal, C. J. After stating the case as in the commencement of this account of it, his Lord- ship proceeded : "The ship arrived on the 3rd June, 1842 ; some repairs were necessary, which were completed on the 2nd September: the ship was then ready to take in her cargo, but, in fact, none was put on board until lOlh Jan- nary, 1843. The ship was a seeking ship, commanded by one of the part- owners : and we think it was clearly proved that he could not at an earlier period have obtained a cargo, either for China or the United Kingdom, at a remunerating freight. Several circumstances combined to render freights unusually low at Bombay during the time the ship in question remained there. Ships that had taken out troops were in want of homeward cargoes, and the disturbance with the trade with China had prevented many ships from sailing thither from Bombay. The latter port was therefore crowded with shipping, and the freights offered would, if accepted, have occasioned a great loss to the owners ; and there was nothing to shew that, as far as the interests of the owners were concerned, the delay at Bombay was improper. But it was con- tended, that although tlie adventure on which the ship sailed might have been prosecuted without any improper delay, as far as the owners were concerned, yet with regard to the underwriters, the case was *different, and ^ ^ ^ the delay unreasonable and improper, and therefore equivalent to a L '^^^ J deviation ; and that, as the concurrence of circumstances which rendered freights 126 DEVIATION FROM THE VOYAGE INSURED. lit Bombay ruinously low was unusual, it could not be said that the voyage was prosecuted in the usual course. It was not, nor could it be denied that the ship might be detained some time in order to obtain a cargo at a reasonable rate of freight; but it was said that such detention could not, without discharging the underwriters, be extended beyond the time usually required for such pur- pose. It appears to us, however, that no such rule can be laid down; that detention for a reasonable time, for the purpose of the adventure insured, must be allowed : and that whether the time is reasonable or not, must be deter- mined, not by any positive and arlntrary rule, but by the state of things exist- ing at the time at the port where the sliip happens to be. It may be collected from numerous cases, {a) that delay before or after the commencement of a voyage is not equivalent to a deviation, unless it be unreasonable. And we think that no certain or fixed time can be said to be reasonable or unreasonable for seeking a cargo in a foreign port, but that the time allowed must vary with the varvinii- circumstances which may render it more or less difficult to obtain such a cargo." Rule refused. DEVIATION FROM THE VOYAGE INSURED. The circumstances relating to the permission granted to the assured by the terms of the policy, that in performing the voyage insured, he shall go to and touch at, and stay at those places on the voyage in question, which are usual for ships trading to the particular part of the world, and in the habit of so doing, "without any prejudice to the insurance," have been mentioned. r *9'^n "1 'f hese observations, it will be recollected, apply more particu- L '^'^^ J larly *to the ships which are insured on voyages to the East ladies, and round the Capes, to China, and difl^erent distant parts of the globe : we have seen that such ships are usually insured with very extensive liberties both in port and at sea, backwards and forwards, and on all kinds of services, &c., and we saw that formerly it was the practice of the East India Company, frequently to employ the ships which had sailed from Europe in any trade, or for any purpose of their own, without any regard to the interests of the owners ; in consequence of this practice, it was necessary, in order to protect the interests of the shipowners and freighters, that these extensive and comprehensive liber- lies should be inserted in policies on those voyages ; and all those risks attend- ing such voyages were well known to the underwriters, and they protected themselves accordingly by the amount of the premiums : but we also recollect, that it has been laid down by many decisions, that the Courts of law have always construed the particular clause in the policy making it lawful for the ship "to "touch, stay, trade," &c. strictly, and that it is held that this liberty is always to be confined to some legitimate purpose connected with the voyage insured ; and it is expected that a ship insured for any particular voyage, does at once proceed to take, and keep (if it is possible) the proper route and course, Avhich according to seai'aring persons, is acknowledged by all such to be the best and tlie proper one to perform the voyage insured. But if, instead of keeping the proper course, the ship either by the direction of the assured, or his agent, or l)y the wilfid act ol" the master, without neces- sity, or any reasonable cause, alter her com-se in a different direction, for any purpose not connected with tlu; original voyage insured, this amounts in the law of marine insurances of this country, to what is termed a "deviation" from the voyage. 13ut this is not all ; for if a ship is at a particular port, and is repre- (a) Hartley v. Buj^jrin, Park Ins. 652. Mount v. Larkins, 1 M. «fe Scott, 165; 8 Bing. 109. Ougier v. Jennings, 1 Camp. 505, (n). DEVIATION FROM THE VOYAGE INSURED. 127 sented to the underwriters as he'intr bound at such a time on a certain voyage, upon whicli an insurance is made by the party interested, with the underwriters, and the ship leaves her *port and starts ever so little a way on her r- ^ooi -i voyage, or if she is insured in port and is lost before she sads, if L ' J by sudicient proof it can be made apparent, that by the particular equipment of the ship — the coals, stores, and provisions, calculated for a dillerenl voyage from the one represented to the underwriters, or from evidence either of wit- nesses, or by letters on the subject, from that moment the insurance is void ; for it is manifest that the master, either by direction of his owners, or by a wilful act of his own, had prepared himself before he set sail, to go on a voyage different from the one insured, and the moment he left the port(o) is lost, or in case of the insurance being on the ship in port, if she is lost in port, the insurance is, from the fact of the preparation of tlie master to go upon a voyage other than tlie voyage insured, void. (/;) I. The term deviation in marine insurances is understood to mean, a volun- tary departure, without necessity, or any reasonable cause, from the regular and usual course of the specific voyage insured, (r) There are a great many cases in the books, varying in their particular circum- stances, but which have been held by the Judges to amount to such a departure from the oriijinal voyage as to dischartjc the underwriters. I shall endeavour to divide the subject into the different classes of the cases which have been held deviations from the voyage insured. But I shall previously mention an important case. The case I mean is that of Vnllfjo v. irheeler, [d) tried before Mr. .1. AsJmrst^ at GuUdhull, at the sittings after Easter Term, 1774, and after brought upon motion for a new trial, when Lord Chief Justice Mansfield and the rest of the Judges delivered their judgnu^nts : I shall only here remark, that it was admitted in tlie case that the master had been guilty of a deviation by carrying the ship out of her course *to Giinnsey on a smuggling speculation of his own, but as this p soqo t was held to be a fraudulent act of the master against the owner, L -^ ^pro hoc vice,^ the underwriters were liable upon the question of "barratry of the master," against which the freighters were protected by the express terms of the policy ; and the Court held that it did not lie in the mouth of the underwriter to object on the ground of its being a deviation, and so to prevent the plaintiff's recovering on that count: because the act of the master is a fraudulent act, and if the loss is consequential upon such fraudulent act, it is 'barratry,' against which the party is insured: and therefore the insurers shall not object upon a fact which is itself a forfeiture of the policy." I shall proceed to mention an important decision which is applicable to what I have above remarked, of the alteration of a voyage from the one originally insured. The case I allude to is Taskcr v. Cunningham and others, (a) This was an appeal from the Court of Session in Scotland to the House of Lords. It came on for argument in the year 1819. And judgment was deliv- ered by the Lord Chancellor [Eldon) on the 7tli of July of that year. The I circumstances of the case are these. The respondents, who were engaged in the Neicfoundland trade, expecting one of their vessels called the Henrietta., to arrive with a cargo of fish at Cadiz, in the beginning of the year 1810, directed Messrs. Lynch ^' Co., their agents at that place, as soon as the cargo should be discharged to ballast the vessel with (ff) Graham v. Barras, 5 B. & Ad. 1011. (fi) See Woolri(l;je v. Boydell, Doug. 16. Way v, Modigliani, 2 T. R. 30. (c) Park Ins. filO. (d) Cowp. 143. This case is fully reported, posf. (a) 1 Bligh, Rep. 87. Vol. VIL— K 128 DEVIATION FROM THE VOYAGE INSURED. salt, and to endeavour to procure freight for her to Clyde. The vessel arrived at Cadiz about the time expected, but the French army having taken posses- sion of the salt-pans in that neighbourhood, it was not in the power of Lynch Sf Co. to comply with tlie respondents' instructions. Under these circum- stances they resolved, with the approbation of the ship-master, to despatch the r ^'J'\'\ 1 vessel for Liverpool, in the place of Clyde. Of this change of the L -^^^ J ^destination of the vessel, Messrs. L^ynch t^- Co. advised the respondents by a letter dated 16th January, 1810. By a letter dated 10th February, from the same persons to the respondents, the cause of this variation is assigned in the following terms : "I have at last sold the Elizabeth'' s cargo at 85 per quintal, &c. As to the Hcnrieita's I could not get a purchaser for the whole, so began to retail it at five dollars, at which I hope to send the wliole off shortly. As the French have got possession of all the salt-pans in the neigh- bourhood, I cannot ship any salt in these vessels, so that we will set them up for LJvcrpool (where salt can be got) with a prospect of getting full freight without much delay." It was necessary that a cargo of salt should be sent out earlv in the spring, for the supply of the fishery, and salt could only be pro- cured at Liverpool. Messrs. Lyacli's letters, with their intentions, were writ- ten while the fish was yet on board. After the receipt of it, and upon the 12th of March, the respondents made an insurance upon the voyage at and from Cadiz to her port of discharge in St. Geor^e^s Channel, including Clyde, which was underwritten by the appellant to the extent of 100/. Circumstances afterwards occurred which induced Messrs. Lynch and the ship-master again to alter the destination of the vessel, 'i'he sale of the cargo and delivery had been protracted so long as to give reason to apprehend that if the vessel proceeded to Liverpool to load salt, the supply of that article would not reach Newfoundland at the proper season, in the Spring, and in the mean- time the French had retired from the salt-pans at Cadiz, so that a cargo of salt could readily be obtained there. Messrs. I^ynch Sf Co., therefore, after consulting with the master of the Henrietta, and with the master of another vessel belonging to the respondents, deemed it for the interest of the respondents to despatch the Henrietta direct to Newfoundland ; and as it was necessary to give the respondents immediate information of this change in the destination of the vessel, to the end that they r *9^4- 1 "^^S'^^ insure the new voyage; they *wrote on the 28th February, L -■ 1810, to the respondents in the following terms: — "In conse- quence of the unprecedented want of small craft, and the general confusion that has prevailed since the French appeared in this neighbourhood, the deliv- ery of the Elizabeth'' s cargo has been delayed ; and as it is likely the Henrietta will be detained from the causes. Captain Col/'uio has, after consulting witli Captain Fields, determined to return direct to St. Jolui's with a cargo of salt, now to be had at double price." Eight days after the date of this letter, while the vessel was lying at Cadiz, she was driven on shore by a storm, and burnt by the French. Tlie letter of the 28tli February, nnd another letter conveying the intelligence of the loss were received by the respondents on the same day, viz: upon the 21st o[ .^pril, 1810. In these circumstances the respondoils did not communicate to the ai)pellant or the other underwriters the letter which they had received from JAjnch 4" Co. respecting tlie projected alteration of the voyage, and obtained payment from them for a total loss. The House of Lords, reversing the judgment of the Court below, decided that the correspond- ents at Cadiz were agents of the respondents ; that the voyage insured was abandoned by their determination to send the ship on a different voyage, and therefore the underwriters were not liable for the loss. The consequence of which decision being that the owners were bound to refund the money, with interest, which had been paid by them before they were apprised of the facts. DEVIATION FROM THE VOYAGE INSURED. 129 The Lord Chancellor, in giving his judgment ends in these words: — "It is contended that there was nothing to alter the voyage hut the intention, wliich might have been again varied, and as there was no progress made in unloading the cargo, nor any act done towards a change of the voyage ; this is to be con- sidered as a loss under the policy. Undoubtedly a mere meditated change does not affect the policy. But circumstances are to be taken as evidence of a deter- mination, and what better evidence can we have than that those who were authorized had determined to change the voyage. In my opinion p roq^ -i the *voyage was abandoned, and I have the highest authority in L J Westminster Hall to confirm that opinion. Suppose they had gone upon the second voyage, and the ship had been lost after insurance for that voyage, on which of the policies could they have claimed or recovered? Certainly not on the first. Upon the letters of the agents and the captain it must clearly be considered an abandonment." The Lords found that the voyage ought to be considered as having been abandoned before the loss of the vessel, and the interlocutors were reversed, (a) I now proceed to state some of the most material cases of the several and distinct descriptions, which, from early times, have been held to be deviations by the Courts of Law. L In a case of Fox v. Black, (b) the plaintiff was a shipper of goods in a vessel bound from Dartmouth to Liverpool; the ship sailed from Dartmouth and put into Loo, a place she must of necessity pass by in the course of the insured voyage. But she had no liberty given her by the policy to go into Loo ; and although no accident befell her going into or coming out of Loo, (for she was lost after she had got out to sea .again) yet Mr. J. Yates held that this was a deviation ; and a verdict was accordingly found for the underwriter. In another early case before Lord Mansfield, of Toivnson v. Giiyon, (c) an action was brought on a policy "on goods and other merchandises," loaded on board the ship called the Charming Nancy, from '''-Dunkirk to Leghorn." The ship came to Dover, in her way, to procure a Mediterranean pass, and was afterwards lost. Lord Mansfield was of opinion that the calling at Dover was a deviation, and the plaintiff was nonsuited. 2. Mr. J. Park says, id) it was held by Lord Chief Justice Lee, that if the master put into a port not usual, or stay an unusual time, it is a deviation which discharges the underwriter. But, in the case of Smith v. Surridge, (e) it was held that the *time which a ship is detained in the port for p ^ooc n necessary repairs, the insurance being "at and from," shall not L J be taken to be unnecessary delay, so as to avoid the policy. Lord Kenyan said, that the policy attached on the ship while she was undergoing repairs j it was, in such a case, not necessary that she should be fit to proceed on the voyage at the time of the insurance. The underwriter took into his conside- ration the time she might necessarily be detained. And see what C. J. Tindal said, in the case of Mount v. Larkins, [a) referred to in a previous part of this Treatise ; and see also the recent case, which I have already mentioned, of Phillipps v. hving; (b) and see the case of Ougier v. Joinings, (c) which has likewise been referred to in this Trea- tise. («) Sec the case of Driscoll v. Bovill, 1 B. & P. 313. (b) Exeter Ass. 1767, before Mr. J. Yates, Park Ins. 620. (c) Park Ins. 620. (rf) Ibid. (e) 4 Esp. 25. Ante, p. 176. (a) 8 Bing. 122. Ante, p. 107. (b) 8 Scott's N. R. 3. Ante, p. 226. (c) Sit. in C. P. 1800. 1 Camp. 505, note (a), and ante, p. 205. 130 DEVIATION FROM THE VOYAGK INSURED. Mr. J. Park mentions two cases of Stift v. Wardcll [d) and Sherijjf v. Potts, (e) which cases were declared by Lord Ellenborough to have been over- ruled in a case I am about to mention. It was the case of Paine v. Bel/, (f) Avliich was an insurance at and from the ship's loading ports, on the coast of Spain to London, with liberty to touch and stay at any port or place whatsoever; the jury found expressly that the going into and staying at Gibrallar was of necessity, in order to procure a supply of provisions, and that the stay was not longer than the necessity required; and it was proved that while the vessel lay there, the captain received on board some chests of dollars. This fact, and this finding of the jury, raises the question of law, whether the taking in the additional cargo of dollars was a breaking of bulk in the course of the voyage, at a place where there was no liberty to trade given by the policy, so as to avoid it, as increasing or having a tendency to increase the risk. The point was very fully argued : and the counsel, who argued that this amounted to a deviation, relied on the two cases last quoted. r «9q7 1 ^^^^ ^'^^ Court were unanimous in deciding that, as the ''jury had L J found that the whole period of the ship's stay was covered by the necessity which originally induced her to go into Gibraller, there was no im- plied warranty in such a policy that the ship shall not trade, so as no delay be actually occasioned. And as to the temptation to deviate held out to the master, that must always be a question for the jury, as in other cases of fraud, whether the deviation or delay arose from the trading or from necessity ; and an intention to deviate, not carried into effect, will not avoid a policy, still less can a temptation to deviate avoid it. The above case was afterwards twice fully considered. First, in the case of Connack v. Gladstone, (a) where it was held that the vessel, being obliged to stop to pay the Sound dues, at Elsineur, taking in some provender for sheep, but not thereby delaying the voyage, was no avoidance of the policy. Secondly, in the case of Laroche v. Osivin, {b) where taking in a few goods in a roadstead, where the ship way lying for convoy, and after the signal for sailing but before the signal to weigh, was held not to be a deviation, the jury having expressly found that taking in the goods occasioned no delay. The next case to be mentioned is, the case of Elliott and others v. Wilson l)er, 5 Taunt. 400. (f/) IJelbre Lord Camden, (L J. Park Ins. 630. \b) At Guild. Easter Vac. 1781. Park Ins. 630. DEVIATION FROM THE VOYAGE INSURED. 135 And in the casR of Lmorence v. Sydehofham, (a) a merchant-ship employed in commercial objects, was insured witii or without letters of niarfpu', wiih a liberty to chase, capture and man prizes, the captain is not justified, after he has captured a vessel, in the further prosecution of his voya) 6 East, 202. (c) Guildhall, March 6, 1S05, Park, 632. (rf) I Camp. 263. 136 DEVIATION FROM THE VOYAGE INSURED. And in the case of Hibhert v. HaUiday, {b) it was held, "that liberty given in a policy on a fishing voyage, to chase, capture, and man prizes," does not authorize the ship to lie by nine days off a port, waiting for an enemy's ship to come out, when she should have completed lier cargo, although such lying in wait was within the limits of the fishing ground. In a case of Moss v. Byrom, (c) which came before the Court of King's Bench upon a motion for a new trial, the Judges were unanimously of opin- ion, that if the assured, without the knowledge of the underwriters, take out a letter of marque, (but without a certificate, Avhich by the Prize Act of the 3.3 Geo. c. 66, s. 15, is absolutely necessary to its validity) for the purpose of inducing the seamen to enter, and without any intention of cruising, this does not so essentially vary the risk as to avoid the policy. r *9iS ~\ *'rhe doctrine that a voluntary deviation from the voyage insured L -J vitiates the policy, has been held to be applicable to an insurance upon freight as well as to an insurance upon ship and goods. Thus in a case of Murdock v. Potts^ (a) upon a policy of assurance on freight of the ship Bethiuh at and from Bordeaux to Fir2;'inia, warranted American ship and property : the declaration alleged that tlie ship was an American ship and the property of American subjects. The plaintiff proved tlie ship to be American, and it was to have l^een contended upon the part of the defendant, that the warranty extended to the goods on board as well as to the ship : but upon the evidence it appeared that tlie goods, whether American or not, were to be carried in the ship from Bordeaux to St. Domingo, and that she was only to call at Norfolk in Virginia for orders ; this rendered it unnecessary to discuss or decide tlie question upon the construction of the war- ranty. Lord Kenyon being of opinion, that the underwriters upon this poUcy had a right to expect that the goods, upon which the freight was payable, were consigned to Virginia, and that if the freight was payable for the carriage of them from Bordeaux to St. Domingo, the underwriters were not liable for the loss, though the ship was to call at Norfolk for orders, the freight payable being in such case differeiit from the freight insured : plaintift' was nonsuited, and no application was made to set it aside. In the case of Taylor v. Wilson, [b) however, it was held, that freight might be insured from St."^ Ubes to Portsmouth only, though her ultimate destination was Gottenlmrg, but meaning to stop at Portsmouth for convoy in her way. It was said in the commencement of this subject, that a deviation meant a voluntary departure from the voyage, yet, wherever the deviation arises from necessity, force, or any just cause, the underwriter still remains liable, although the course of the voyage is altered, (c) r »24Q 1 '^''^'^ ''"^^ '^ illustrated by the following case of Elton v. Brog-^ L J den. {a) The ship Mediterranean Avent out in the merchants' service with a letter of marque, and bound from Bristol to Neirfoundland, insured by the dcifendant. In her voyage she took a prize, and returned with it to Bristol, and received back a proportional part of the premium. Then another j)olicy was made, and the ship set out, with express orders from the owners, that if another prize was taken, the captain should put some hands on board such prize, and send her to Bristol; but that the ship in question should proceed with the merchants' goods. Another prize was taken in the due course of the voyage, and the captain gave orders to some of the crew to carry her to (b) 2 Taunt. 428. (r) 6 T. R. 379, post, (a) Sit. at Guild, after Trin. T. 1795. Park Ins. G34. (Ij) 15 East, 324. (c) Koccus, Not. 52. (a) 2 Strange, 1264, ;>os/. DEVIATION FROM THE VOYAGE INSURED. 137 Bristol, and designed to go on to Newfoundland: but the crew opposed him, and insisted he should go back, though he acquainted them witli his orders ; upon which he was forced to submit, and on his return his own sliip was taken, but the prize got in safe. And now in an action against the underwriters, it was insisted, tliat this was such a deviation as discharged them. But the Court and jury held, that this was excused l)y the force upon the master, whicii he could not resist, and therefore fell within the excuse of necessity, which had always been allowed. So the plaintiff had a verdict for the sum insured. So also in the case of Scott v. Thompson, (b) on a limited policy against sea- risk and fire only, in the course of the voyage insured from Liverpool to Amsterdam, the ship was carried out of the course of the voyage into Fcd- mouth by a king's ship, but being afterwards released, she proceeded towards her destination, and the cargo, which was die subject of the insurance, sus- tained sea-damage, the underwiiters were held liable; for the deviation, which was insisted on as a matter of defence, was not voluntary : and deviation occa- sioned l)y force, and deviation by necessity, are the same, for necessity is force. *Foreign writers upon this subject have enumerated the various p *or^n i circumstances, which will operate as a justification to the insured, *- -^ for leaving tlie direct track of the voyage, upon the ground of necessity and reasonable cause, such as to repair his vessel, to escape from an impending storm, or to avoid an enemy. («) 1. The first ground of necessity which justifies a deviation, is that of going into a port to repair. If a ship is decayed, and goes to the nearest place to refit, it is no deviation, because it is for the general interest of all concerned, and consequently for that of the underwriters, that the ship should be put in a proper condition capable of performing the voyage : so shewn in the case of Motteuux and others v. London .Assurance. (6) The ship Eyles being at Bengal in the year 1732, the owner employed a Mr. Halhead to insure this ship in the London Listirance Office for 500/., the adventure thereon to commence from her arrival at Fort Si. George, and thence to contiime till the said ship should arrive at London; and that it should be lawful for the said ship in the said voyage, to stay at any ports or places without prejudice. The Eyles came to Fort St. George in February, 1733, in her way to England; but being leaky, and in very bad condition, upon the unanimous advice of the governor, council, commanders of ships, &c., she sailed for Bengal to be refitted ; and after being sheathed, in her return upon her homeward-bound voyage, she struck upon the Engilee Sands, and was lost. Evidence was read on the part of the plaintiffs, to prove that Bengal was the proper place to refit, and that the ship went thither for that reason ; that this was a voyage of necessity, and not a trading voyage, for she took nothing on board but water, provisions, and ballast. When this cause came on to be heard before Lord Chancellor Hardwicke, he refused to decide it, but directed an issue at law. His Lordship, however, observed, that the general principles laid down by *the plaintiffs' counsel were right, as stress p ^f,,, -, of weather, and the danger of proceeding on a voyage, -when a L " J ship is in a decayed condition ; and in such a case, if she went to the nearest place, he should consider it equally the same, as if she had been repaired at the very place from whence the voyage was to commence, according to the terms of the policy, and no deviation. It is a very material circumstance, that {b) 1 N. R. 181; see Forster v. Christie, post, (a) Roccus, 52; Sauter do Assecur. part 3, n. 52. lb) 1 Atk. 545. 138 DEVIATION FROM THE VOYAGE INSURED. tlie jTovernor ordered the lading to be taken oiU, to shew the necessity of the ship's being repaired ; but there is not a syllable of proof why she might not have been equally repaired at Fort St. Geors^e. His Lordship, therefore, directed an issue to try whether the loss in Jufy, 1733, was a loss during the voyage, and according to the adventure which was agreed upon, or intended to be insured. On a trial at Gidldhall, in the Court of Common Pleas, the jury Ibund in favour of the plaintifl's. And in die case of Weir v. Merdein^ (a) if a ship in the course of her voy- :ige appear to be too heavily laden, so that it is necessary to lighten her, she may at the next convenient place land and sell part of her cargo. Or if she be found to require ballast, she may at a convenient place take ballast on board, or even goods in the place of ballast. In the case of Guibert v. Read>ihuw\ {b) was an action on a policy of insu- rance on the Nana/, at and from La Roc.heUe to the coast of Jlfrica, during her stay and tradt? there, and at and from thence to her port of discliarge in the island of .SY. Domingo. Three days after the ship sailed from Im JRochelle, she met with a gale, which strained her seams, and split her mizen-yard and rigging. 'J'he crew came in a body to the captain, desiring for the preservation of their lives to make to some port to repair. The vessel being a new one, and the captain tinding that she had too little ballast, complied, and put into Lisbon, the nearest port; from whence, after taking in five hundred rolls of r t^p.o n tobacco as ballast, he ■■proceeded to the coast of Guinea, traded L J there, and the ship was afterwards captured in the sight of St. Domins;o before she arrived. The defendant insisted that going into Lisbon was a deviation, and called witnesses, who were of opinion, that in the latitude in which the storm happened, there could be no difficulty in repairing all the damage the vessel was described to have received, even in the worst weather, as she might have proceeded to the coast of Jlfrica, and repaired there at a less expense; and that a ship, loaded like that in question, could not need additional ballast. On the cross-examination, it came out Uiat the premium would not have varied had the voyage been by the way of LJfibon. Lord Mansfield left it to the jury, on the ground of necessity to go to Lis- bon for repairs. He said, that niucii depended upon the circumstance, that no additional premium would have been required for liberty to touch there. If the jury l)elieved the evidence of the witnesses, they must find for the plaintiff, for that tlie whole of tlie defendant's case rested merely upon surmise and suspi- cions alone. 'J'he plaintiff accordingly had a verdict. 3. The next excuse lor leaving the direct course is stress of weather. "Upon this point the rule is this, that wherever a ship, in order to escape a storm, goes out of the direct course, or when in the due course of the voyage, is driven out of it by stress of weather, this is no deviation; because it was occasioned by the act of God, which, by a maxim of law, is said to work an injury to no man. It has also bv.en held, that if a storm drive a ship out of the course of her voyage, and she do tlie best she can to get to her port of destina- tion, she is not obliged to return back to the point from whence she was driven. This rule is exemplified by the following case." Harrington v. Halkeld. (a) In an action on a policy of insurance of the ship .Atlantic, warranted to sail with convoy from England to St. Kitts, on or before the 1st o{ ./lugust; the -, question was, whether tliere 'had been a deviation } The ship L ^'^^ J vvas separated from her convoy by a storm. The captain being (a) 2 B. & A. 320, ante, p. 127. \h) Sit in Loud. nil. Vac. 1781. Park Ins. (537. (a) Sit. in Lond. Midi. Vac. 1778. Park Ins. 638. DEVIATION FROM THE VOYAGE INSURED. 139 examined, said, liis object, after his separation, invariably was to gain Sf. Ki'fs, or to fall in with the convoy. That the ship was taiven by an Jhncrkan pri- vateer in lat. 34, long. 59. Several captains were examined, who swore, that they would have taken the same course to get to St. Kiff.s, or regain the fleet. Lord Manspdd — "'J'iie single question is, whether the caj)tain was taken as he was going to St. KUfs? If he was not he is perjured. The account he gives is, that on the 28th o{ July there was a storm, which separated the fleet; that he did all he could to get to Sf. Kitts, and to direct his course so as to meet liie convoy crossing. 'J'he captain ffoes on the ground not to reason, but to obey, be the consequence what it might. He knows nothing of the insu- rance : he says to himself, "If I obey, 1 am doing right." As to the protest, I do not see that it contradicts the captain's evidence. Other captains have looked at the log-book or journal ; and they say, they would have held the same course." Verdict for the plaintilT. In the case of DrUniey v. S/oddarf, (a) which was an action upon the case against the defendant, for not having insured a ship and cargo, pursiuint to the orders of the jilaintifF, by moans whereof he was damnified, the ship having been lost. It was tried before Mr. Justice ]hdlci\ at Gmldluill. at the Sittings after Trinity Term, 178^5; and a verdict was found for the plaintiff. Upon a motion for a new trial, the facts appeared to be these : — The plaintiff", who lived at -S7. Ki'la^ wrote a letter to the defendant, dated the 30lh of Jpri/^ 1781, informing him that he intended to purchase a ship, and olTering the defendant a share. On the 4th of May, 1781, he wrote a second letter to the defendant, acquainting him that he had purchased the ship, but had only a share in it himself, the ^residue being divided into three or four more ^ ^,^ . -, shares, one of whicli he had reserved for the defendant, in case he L " -I should wish to be concerned ; and directing an insurance upon the ship at and from Sf. Kiffs to I^ondon, warranted to sail with the convoy. On the 28th of Jime, the defendant wrote to the plaintifl!', that he had no objection to a fourth, or a share equal to the plaintifl^'s. On the 3rd of July, the plaintiff informed the defendant, that the ship had left the port to take in her cargo : that she let go an anchor at Sandy Point, but as the wind blew fresh, she drove out and could not come in again ; that she was obliged to go to St. Eusiafhrs, and he therefore hoped that the defendant had not neglected to make the insurance, for fear of accidents. The defendant, on the 19th of July, wrote thus to the plaintiff: "The insurance you ordered shall be done." Plaintiff again, on the 25lh of July, wrote, that the Friendship did all in her power to get up from St. Eustatius, but could not, and therefore he sold her to Mr. Ross, alEusta- tius. I have already transcribed as much of the several letters as are material to the subject of this section; in addition to which the following facts appeared in evidence: — That the ship Friendship had sailed from St. Eustalivs, on the 1st of Aus^ust, with the convoy, and that she had afterwards foundered at sea; that St. Eastatius is in the direct road to London from St. Kitts, and the convoy from St. Kiits always looked into -SV. Eustatitis, to take up any ships that might he there ; but if the Friendship had sailed from St. Kitis, she must have gone by Eustutius; but would not have stopped there : tliat when she was driven to St. Eustitfins, after making several efforts to get back to Sf, Eitts to finish her loadiii'i, and findin"- she could not succeed, she then took in the rest of her loading at ^S7. Eusfntins. At the trial, several grounds of defence were made; but the only one mate- rial for our consideration was, that the remaining at St. Eustutius, and not (a) 1 T. R. 22. 140 DEVIATION FROM THE VOYAGE INSURED. going back to .57. Kilts, was a deviation. The learned Judge, who tried the P ^ _ -, cause, was of opinion that it was not a deviation, being occasioned L ■ ■^^^ J *|-,y stress of weather. Upon this ground, amongst others, the motion for a new trial was founded. After argument at the Bar, Lord Mamficld said,— " The only material question is, Whether there is a deviation in this case.^ and that depends on the evidence. If a storm drive a ship out of her voyage into any port, and being there she does the best she can to get to her port of destination, she is not obliged to return back to the point from whence she was driven; but here the witnesses say, she tried to get back to St. Kitts, and could not : and it is a much easier navigation to go direcdy from St. Eustatius to London, than to go back to St. Kitts first. And as to the taking in the cargo at St. Eiistatim^ I do not find that the ship lost any time by it. Every thing is the effect of the storm, and occasioned by it. This is the only point on which I had any doubt, and it required some consideration. It was a question, which was proper to be left to a jury, whedier this was the same voyage or not, and they have determined it." But in every case in which the excuse of necessity is pleaded, whether it arise from the act of God or from any other insurmountable cause, it must be clearly made apparent that the deviation was entirely in consequence of such causeji and that was no default on the part of the assured or the master of the ship. This principle of the rule in these cases was confirmed in a case before Lord Eldon, when Lord Chief Justice of the Common Pleas, in the case of Wolfe v. Cluggen. (a) The insurance was from Altona to Surinam, the defence made was "deviation," the vessel having put into Plymouth, out of the course of the voyage, and remained there fourteen days. The answer on the part of the plaintiff was, that the captain was taken ill with a severe fit of the gravel, and that the mate having pricked his finger, by accident, his hand and arm ^ "1 swellell to such a degree, as to render him incapable of *doing his L ■ ''^^" J duty, and that they had put into Plymouth for the purpose of pro- curino- medical assistance. These facts, as to the captain's and mate's illness, and their application to a surgeon, were proved : but it also appeared, on cross- examination, that the surgeon of the ship was unprovided with proper instru- ments and medicines. He was not called. Lord Eldon said, he was of opinion that if by the visitation of God so many of the crew, who would otherwise have been sufficient, became so afflicted with sickness, as to be incapable of navigating the ship, such an illness of the crew was a necessity which might justify a deviation: but when it was set up as a justification of a deviation, he thought it incumbent on the plaintiff' to shew that lie had so far provided ngainst such events, by every proper precaution, such as having medicines for the voyage, as much as he was bound with respect to the tightness of the ship. It was in evidence that a surgeon was necessary in such voyages : if, thereiore, sickness was to be set up as an excuse for devi- ation, the plaintiff should shew that the surgeon was provided with such medi- cines and instruments as would probably become necessary in the course of the voyage, to meet the common casualties of the mariners. He was also of opinion, that the necessity for going into port ought to be made out by the plaintiif beyond all possibility of doubt, and that it arose and existed without any default of the master or party insuring : and if they came in for medical aid, he should expect medical men to be called to prove that such necessity existed. That had not been done in the case then before him, and the plaintiff must be nonsuited." (a) 3 Esp. 257. DEVIATION FROM THE VOYAGE INSURED. Ml 3. A deviation may also be justified, if done to avoid an enemy, or seek for convoy; because it is in truth no deviation to j{0 out of the course of the voy- age, in order to avoid dantrer, or to obtain protection ao-ainst it. In an action upon a policy, in the case of Bond v. Gonsalen, (d) wliicli was to insure tlie JFllliam GaUcy in a voyage *from Bremen to the ^ #0,-7 -1 port of London^ warranted to depart widi convoy; the case was L ' J this : — The G(dley set sail from Bremen, under the convoy of a Dulch man- of-war to the Elbe, where they were joined by two other Dulch men-of-war, and several Dutch and English merchant ships, whence they sailed to the TexeU where they found a squadron of English men-of-war and an admiral. After a stay of nine weeks, they set out from the TexeU and the Gallei/ was separated in a storm, and taken by a French privateer, taken again by a Dutch privateer, and paid 80/. salvage. It was ruled by Lord Chief Justice Holt, that the voyage ought to be accord- ing to usage, and that their going to the Elbe, though in fact out of the way, was no deviation, for till after the year 1703, there was no convoy Ibr ships direcdy from Bremen to London. And the plaintiff had a verdict. And in the cases of Gordon v. Morley, and Campbell v. Bordiru, (a) on an insurance from London to Gibr(dtar, warranted to depart with convoy, it appeared there was a convoy appointed for that trade at Spithead: and the ship Ranger having tried for convoy in the Downs, proceeded to Spithead, and was taken in her way thither. The insurers insisted diat this being ttie time of a French war, the ship should not have ventured througli the CJKmnel, but have waited in the Doivns for an occasional convoy. And many merchants and office-keepers were examined to that purpose. But Lord Chief Justice Lee held that the ship was to be considered as under the defendant's insurance to a place of general rendezvous, according to the interpretation of the words warranted to depart with convoy. And if the par- ties meant to vary the insurance from what is commonly understood, they should have particularised her departure with convoy from the Doivns. The juries were composed of merchants ; and in both cases they found for the plaintiffs upon the strength of this direction. In the case of Bond against Nutt, {b) in which the material ^ . -, ^question was, whether a warranty had or had not been complied L J with, the point of deviation for the purpose of procuring convoy also came under the consideration of the Court. Upon that occasion Lord Mansfield and the whole Court held, that if a ship go to the usual place of rendezvous, for the sake of joining convoy there ready, though such place be out of the direct course of the voyage, it is no deviation. And in a subsequent case of Enderby v. Fletcher, (a) the only question was, whether there was a deviation or not ? Lord Mansfield there directed the jury to find for the plaintiffs, if they believed that the captain fairly and bond fide acted according to the best of his judgment; that he had no other view or motive but to come the safest way home, and to meet with convoy: for tiiat it was no deviation to go out of the way to avoid danger. AVhere in the case of Salisbury v. Townson, {b) a ship was insured from Liverpool to Jamaica, and had put into the Isle of Man, it appeared that there were some intances of the Liverpool ships putting in there, but it was not the settled, common, established, and direct usage of trade : it was held to be (d) 2 Salk. 445. (a) 2 Stra. 1265, ante, 198. (A) Cowp. Rep. 601. (a) Sit. in Lond. Trin. Vac. 1780; Park Ins. 646. (I)) Park Ins. 647. 142 DEVIATION FROM THE VOYAGE INSURED. a deviation, and the underwriters were discharged from any loss that happened subsequent to the deviation. In the case of Lawrence v. Syilehofham. (c) Mr. .T. Lawrence. — " As to deviation for the purpose of succouring ships at sea in distress, it is for the comtnon advantnge of all persons, underwriters and others, to give and receive assistance to and from eacli otlier in distress." See the judgment of Sir W. Scott in the Beaver. {(I) And see the case of the J'inc. (e) In .^imerlca, it has been held that such deviation does not create a forfeiture of the policy. (/) It may be considered now settled hy a variety of recent cases, that a liberty r *9k;q t " ^'^ touch and slay at any ports or places *whatsoever, for all L ■' purposes, must be taken to mean, for some purpose connected with the voyage, (a) So also if a ship be insured upon a trading voyage, it is incumbent on the parties assured, to cirry on that trade with usual and reasonable expedition, otherwise their conduct will amount to a deviation, and discharge the policy. Thus, in the case of Hartley v. Bas;^^in, (b) an action by the assured against an underwriter on a policy of insurance on the ship Blossom^ at and from the coast ol' Jlfrica to the IVest Lidies, with liberty to exchange goods and slaves ; a verdict was given for the plaintiff. But upon a rule being obtained to shew cause why there should not be a new trial, it appeared that there liad beiMi a great deal of contradictory evidence, and many points started at the trial ; but the OiUestion now made was, whether the plaintitf, by the use ho made of the vessel on the coast of ^^frica, and tlie delay he there occa- sioned, was not the cause of the loss; that is, whether he did not make such use of her dm-ing lier stay on the coast, contrary to the design of the policy, as amounted to a deviation.^ It appeared in evidence, that this ship stayed on the coast from v^us^ust to March; that she was employed in receiving slaves on board, tlie produce of the cargoes of otlier ships, which were afterwards put on board other ships, and sent to the West Indies; that this is the employment of Avhat they call a factorj/ ship; but that a regular factory ship is thatched and covered, and receives the slaves till a suflicicnt number is collected to send away in the vessels ; but it did not appear that any slaves, the produce of the Blossom^ s own cargo, were sent :iway in other vessels, but that her stay there was several months beyond tlu; usual stay of ships in that trade. Aftei argument at the Bar, r *260 1 ^I^^""^^ Mansfu'Jd said — " When different points are agitated at J a trial, and a great deal of evidence applied to each, and the coun- sel go out of the cause, it is not to be wondered at, if juries should lo' e their attention to the material point. The great advantage of a motion foi a new trial is, that after argument on the motion, the cause goes down aga n, win- nowed from the chair of the first trial. The single point here is. whether there has not been what is equivalent to a deviation, whether the risk h-'s not been varied .=' It is not matcriiil whether or not the risk has been greater. Tf a ship insured for a trade, is turned mto a iloaling warehouse, or a factory (r) 6 East, p. .'>4. (r/) n l?ol). A. R. 292. {r) 2 Hiip;iT 345, and Waterloo, 2 Dod. A. K. 443. (/) Kent's Com. on tiic Law of .\mcrica, vol. iii, p. 10. (') S.-c lianghornc v. Allnutt, 4 Taunt. 519. Hurkcr v. Allnutt, 15 East, 276. Solly V. Whitmorc, 5 B. & A. 45. IJottomlcy v. Bovill, 5 13. & (;. 210 Warre v Miller 4 B. iSc C. 53R, (,„lp, p. 17'). ■ ' {!>) H. It. Mich. 22 Geo 3. Park Ins. 652. See also Williams v. Shec. 3 Car:p. 469. Hammond v. Rcid, 4 B. & A. 72. DEVIATION FROM THE VOYAGE INSURED. 143 ship, the risk is different, it varies the stay ; for while she is used as a ware- house, no cargo is brought for her. Tlie law being clear, how is the fact ? The captain says she was not used as a i'actory ship ; his evidence is much impeached ; but he savs he was young in the trade; he never saw a factory ship but once, and was not in her ; he might have a salvo, because this was not thatclied ; but was she used as a thatched ship is used? It is said that letters are not records ; it is true they may be contradicted ; but if they are from the parties, and are not contradicted, they are as strong as any records. The fact is clear, the risk is different in point of length," &c. Rule absolute for a new trial. [r() So in the case of Parkinson v. Collier, (b) which was an action on a policy from London to Port Eidich, on the coast of ^.^rtca, at six guineas ;jer cent. on the sliip till moored at anchor twenty-fours, and on goods till discharged and safely landed. 'I'hc ship arrived on the coast on the 6th of Tl/e/?/, and was captured by the French on the 4th of June. The barter in the trade is carried on, on board the vessel, and the goods afterwards sent on shore, in boats, and the gums brouglu back. In this case, the discharge of the cargo Iiad not begim, the gums not having been brouglit down to the coast, for which purpose it is necessary to have a previous "agreement with the king of the p j. „. -. country ; bat no delay had been used. The counsel for the de- L J fendant contended, that i)y the custom of this trade, the risk on the goods, as well as on the ship, expired in twenty-four hours, and that the risk on the cargo, while on the coast, was protected by homeward policy, at fifteen gui- neas per ccn'., Lord Kenyan refused the evidence, both of die homeward policy, and of this supposed usage, (which he had on a former occasion ad- mitted atjainst his own opinion, and on which a new trial had been granted) to qualify the clear and unequivocal language of the policy, which covered the risk, till the goods were landed. That if, in landing, any unnecessary delay had been used, that might amount to something in die nature of a deviation, so as to discharge the insurer; but tliat did not appear to be the case in the present instance. But though an actual deviation from the voyage insured is thus fatal to the contract of insurance: yet a deviation merely intended, but never carried into effect, is considered as no deviation, and the insurer continues liable, (rt) This has been frequently so decided. Thus in the case of Tasker v. inimer, (b) which was an insurance from Carolina to Lisbon, and at and from thence to Bristol: it appeared, that d\e captain had taken in salt, which he was to deliver at Falmouth before he went to Bristol ; but the ship was taken in the direct road to both, and before she came to the point where she would have turned ofT to Falmouth. It was held, that the insurer was liable ; for it is but an intention to deviate, and diat was held not suilicient to discharjre the under- writer. In the case of Carter v. The. Roijal Exchange ./Issurnnce Company, (c) where the insurance was from Honduras to London, and a consignment to Amsterdam ; a loss happened before she came to the dividing point between the two voyages, for which the insurers were held liable to pay, *From the proposition just established, namely, that a mere p ^0^9 "i intention to deviate will not vacate the policy, it follows as an ^ "'J (a) See Mount v. Larkins, 8 Bing. 108, ante, p. 177, and Freeman v. Taylor, 8 Bing. 124. ib) Sit. in B. R. after Mich. 1797. Parkins. 653. Phillips v. Kinp;, ante, pp. 177, 226. (a) See ante, p. 234, by Lord Eldon, in Tasker v. Cunningham, 1 Bligh, 87. \b) 2 Stra. 1249. (c) 2 Stra. 1249. Vol. VII,— L 144 THE SAID SHIP, GOODS, ETC. immediate consequence, that \vhai;n-cr damage is sustained l)erorc actual devia- tion, will fall upon the underwriters. Thus it was held by Lord Chief Justice Holt, in tlie case of Green v. Young, (a) who said, tliat if a policy of insurance he made to l)egin from the departure of the ship from Engla/nl, until, «Sic., and after the departure a damage happens, &.C., and then the ship deviates; though the policy is discharged from the time of the deviation, yet for the damages sustained before the deviation, the insurers sliall make satisfaction to the insured. So in the case of Hare v. Travis, (J)) upon an insurance '•'from Liverpool to London,'''' it appeared at the trial that the captain had taken in goods for Southampton as well as London. Having loaded his vessel with goods partly for one place and partly for the other. Lord Tcnterden held, that it ought to be inferred that he sailed on a voyage to both places, and that so long as the vessel continued in that course which Avas common to a voyage either to South- ampton or London, she was sailing on the voyage insured; but as the policy did not contain a liberty to put into Soidhanipton, the putting into that port was a deviation, and the underwriters were not responsible for anj' loss which accrued subsequendy. But as it appeared, however, that the vessel had met with very bad weather in the early part of the voyage, he left it to the jury to say, whether before the vessel came to the dividing point the assured had sus- tained a loss by the perils of the sea. The jury found that they had, and the Court afterwards upon motion supported the verdict. [ *263 ] -SECTION VIH. '•THK SAID SHIP, ETC., GOODS, ETC., ARK VALUED AT The head of this section is important, although what is necessary to be said upon it will, nevertheless, lie in a small compass. The assurers here say, "The said ship, &c., goods and merchandises, &c.. for so much as it concerns the assured, by agreement between the assured and assurers in this policy, are and shall be valued at ." When the blank space is filled up I)y the assured, the policy then becomes that which is designated as a ^''valued "pohcy." If the blank be not filled up by the assured, the policy is then said to be oj>en. The only difference between them consists in this, that in tlie former, the goods or property insured arc valued at a certain price, viz : the prime cost of the property insured, or the value mentioned in the policy ; in the latter, the value is not stated, but requires proof when necessary, and consists of the invoice, price, shipping charges, aiul premium of insurance, (o) Lord Mansfield, in the case of Lewis and another v. Hucker, {h) puts the construction of the meaning of a (r/) 2 Lord Raymoi-d, 840; 2 Salk. 444, 8. G.post. (h) 7 13. & C. 14. And .see the case of .Middlcwood v. Blakes, 7 T. R. 162, and al.so Hesclton V. Allnutt, 1 M. & S. 4(5, wlion; the .spveral cases immediately preceding on the diKtinrtion l)ttwcen deviations intended, hut not carried into eftect, and non-inception of the v<>ynt;e insured, are luueh con.sidcred. (a) 15y the UHage at Lloyd's, where liherty is given by the policy to '< declare and value" after the policy is eflbctcd, and no declaration or valuation i.s indorsed on the policy, it is considered as an open policy. 2 I}. «Sc Ad. 651. Harman and others v. Kingston, 3 Camp. liiO. (6) 2 Burr. p. 1170. THE SAID SHIP, GOODS, ETC. 145 valued policy upon very clear grounds. In answer to an objection to the rule adopted by the defendant, and by the jury in that case of the rule of appor- tionment of a partial loss, viz : "that of taking the proportion of the difierence between sound and damaged at the port of delivery, and paying that proportion of the value of the goods specified in the policy. The defendant says the proportion of the difierence is equally the rule whether the goods come to a rising or falling market. For *instance, suppose the value in the ^ $9^4 -1 policy 30/. : the goods are damaged, but sell for 40/. : had they L J been sound they would have sold for 50/. : the difTerence is one-fifth : he pays that proportion on the prime cost or value in the policy {i. e. 6/. ;) if they come to a losing market for 10/. , being damaged, but would have sold for 20/., if sound, the difference is one-half, and the defendant must pay one-half of the prime cost or value in the policy [i. e. 15/.). To this rule two objections have been made : the first objection is, that it is going by a different measure in the case of a partial from that which governs in the case of a total loss, for upon a total loss the prime cost or value in the policy must be paid. Answer. — "The distinction is founded in the nature of the thing. Insurance is a contract of indemnity against the perils of the voyage ; the assurer engages, so far as the amount of the prime cost or value in the policy, " that the thino- shall come safe," he has nothing to do with the market ; he has no concern in any profit or loss which may arise to tlie merchant from the goods : if they be totally lost, he must pay the prime cost, that is the value of the thing he insured at the outset : he has no concern in any subsequent value. So, likewise, if any part of the cargo, capable of a several and distinct valuation at the outset, be totally lost, as if there be 100 hogsheads of sugar, and 10 happen to be lost, the assurer must pay the prime cost of those 10 hogsheads, without any regard to the price at which the remaining 90 are sold. But where an entire indi- vidual, as one hogshead, happens to be spoiled, no measure can be taken from the prime cost to ascertain the quantity of such damage, but if he can fix whether it be a third, fourth or fifth worse, the damage is to a mathematical certainty. How is it to be found out? Not by any price at the outset port, but it must be at the port of delivery where the voyage is completed, and the whole damage known. Whether the price there be high or low, in either case it equally shew whether the damaged goods are a third, fourth, or fifth worse than if they had come sound; consequendy, whether the injury sustained be a third, *fourth, or fifth of the value of the thing, and as the assurer ^ ^ pays the whole prime cost if the thing be wholly lost, so if it be L -J only a third, or fourth, or fifth worse, he pays a third, fourth or fifth of the value of the goods so damaged. The next objection with M'hich this case has been much entangled, is taken from this being a "valued" policy. I am a little at a loss to apply the arguments drawn from thence. It is said, " that a ro/?) 2 Dod. Ad. Rep. 85. PERILS OF THE SEA, FIRE, ETC. 151 to blame ; where there has been a want of due diligence and skill on both sides : in such a case, the rule of law is, that the loss must be apportioned between them as having been occasioned by the fault of both of them. Thirdly, it may happen by the misconduct of the suffering party alone ; and then the rule is that the sufferer must bear his own burthen. Lastly, it may have been the fault of the ship which ran the other down; and in this case the injured party would be entitled to an entire compensation from the other." In Emcrigon there is the follov/ing passage: (c) — "Si I'abordage n'est pas arrive par cas fortuit, et qu'il soit impossible de savoir par la fiuite dequi, c'est alors le cas de partager le differend, et de faire supporter la moitie du dommage a chacun des deux navires. Tel est le sens de I'art 10 titre des avaries. En cas d'abordage de vaisseaux, il est dil, le dommage sera paye egalement par les navires qui I'auront fait et suffert, soit en route, rade. ou en port." And he cites, for this position, Les Jugemens d'' Oleron, art. 14; L^ Ordonnance de JVisbuy, art. 26, 27, 50 and 70 ; and Le Droit Anseatiqve^ tit. 10. And the editor, M. Boulay-Paty, [d] says, that the law is, that if there be doubt, in the *case of collision, as to the cause, each vessel is to bear its part — p *27fi "1 and he adds, "La loi considerc done comme les vraies causes du •- J dommage la fortune de mer, la force majeure qui a pousse les navires I'un sur I'autre ; et dans ce cas, la portion qui incombe au navire assure doit etre a la charge des assureurs, qui, par la nature du contrat d'assurance, sont tenus de tous les accidens arrives sur mer, quelques insolites, inconnus ou extraordinaires qu'ils soint." (a) And Pothier, [b] says, "L'assureur se charge par le contrat d'assurance, des risques de tous les cas fortuils qui peuvent survenir par force majeure durant le voyage, et causer a I'assure une porte dans les choses assurees ou par rapport aux dites choses." But we have already seen that the Courts of law in this country, look to the direct and immediate consequence of a peril insured against, and not to a remote one : (c) and a mere remote consequential damage arising from such an accident would not fall upon tlie underwriters. Thus in the case of De Vaux v. Scdvador^ id) where a collision between two vessels had taken place, and there was fault on each side, the Court of King's Bench held, that although the underwriters were as a matter of course, liable for the direct injury sustained by the insured vessel, yet that they were not liable for the amount of a sum of nioney which a foreign Court of Admiralty awarded, to be repaid by the insured vessel to the other, in consequence of her having done that vessel more damage than she herself had received. The Court of King's Bench have been of opinion, that where a vessel was sunk at sea, by another vessel firing upon her, mistaking her for an enemy, if not a peril of the sea, as some of the Judges thought, was a loss within the policy, as being a peril, loss and misfortune, under the general p *276 1 ivords *of the policy, sustained in the course of her navigation on L J the sea. (a) In the case of Tatham v. Hodgson, (b) which was an insurance upon slaves against perils of the seas, their death by failure of sufficient and suitable pro- vision, though that failure was occasioned by extraordinary delay in the voyage from bad and stormy weather, was holden not to be a loss within the policy by (c) Vol. 1, p. 413 (ed. 1827.) {d) Pasje 417. (a) And sec Boulay-Paty, Cours de Droit Coniincrcial Maritime, tit. x. s. 16, torn. 4, , 16. ' (6) Traite du Contrat d' Assurance, ch. 1, sect, ii, art. 2, § 2, 49. (c) See ante, p. 93. {d) 4 A. & E. 420. (a) Cullen v. Butler, 5 M. & S. 461. (6) 6 T. R. 656. 152 PERILS OF THE SEA, FIRE, ETC. perils of the sea, but a loss by natural death, which cannot now bo insured against since the statutes for regulating the manner of carrying slaves in British vessels from the coast of .flfrica, by which it is provided, that no loss or dam- age shall be recoverable on a policy on account of the mortality of slaves by natural death, or ill-treatment, or against loss by throwing overboard of slaves on any account whatsoever, &c. {c) But in the case of Lmvrmce v. Aberdein^ {d) where a policy was on liv- ing animals warranted "free from mortality and jettison:" and in the course of the voyage some of the animals, in consequence of the agitation of the ship in a storm, were killed ; and others from the same cause, received so much injury that they died before the termination of the voyage insured: it was held that this was a loss by perils of the seas, for wiiich the underwriters were liable. And Bayley, J., says, "I think that the words in this exception, will protect the underwriters in cases where the death of the animal arises from natural causes remotely produced by some of the perils insured against; but that thpy will not protect him where such death arises directly from any of the perils insured against." In an action of Rohl v. Parts {c) on a policy of insurance at and from Saint Bartholomew to the coast of Africa and during her stay and trade there and P *o'~7 -| back to Saint Bartholomew^ *it was attempted, under a count for L J a loss by perils of the sea, to recover for a total loss of the ship, which appeared to have been destroyed by a species of worms which infest the rivers of Africa. An intelligent merchant swore, that he had known many instances of this species of loss, but that the underwriters had invariably refused to pay. Lord Kenyon^ upon this evidence, and the unanimous declaration of the jury, decided that it was not a loss by perils of the sea. [a) In an action of Fletcher v. Inglis, (b) on a policy of insurance on ship "at and from any port or ports, place or places, in port, at sea in government ser- vice for twelve months, warranted free from capture and seizure." The loss was averred to be by perils of the sea. At a trial before Chief Justice Abbott, at Gmldhall, it appeared that the ship insured was a transport engaged in the service of government, and that in the course of such service, and within the term mentioned in tlie policy, she was ordered into Boulogne; where, under the direction of the superintendent of transports, she was moored near one of the quays. The harbour of Boidogne is a dry harbour, with a hard un- even bottom. Between nine and ten at night, the tide ha\ing left the vessel, a cracking noise was heard in the ship, proceeding, as the witness believed, from something breaking. Some time after this, on the return of the tide, there was a considerable swell in the harbour, and the ship struck the ground hard several times : in the morning, eighteen of the knees were tbund to be broken. This action was brought to recover the amount of the expense in- curred by the assured in repairing the damage. The jury found a verdict for the plainlifT. Upon a motion for a new trial, It was contended for the defendant, that the loss did not arise from any extraordinary accident, and was, there- fore, not a '■'-peril of the sea:'' and Thompson v. JVitmore, (c) was referred r '278 "1 ^^' where a transport having been hove *down upon a beach to J repair, was there bilged, and it was held not to be a "peril of the sea." The Court having taken time to consider, Abbott, C. J., said, that the (/;) 30 Geo. 3, c. 33, s. 8; 3i Geo. 3, c. 60; 39 Geo. 3, c. 80, s. 24. {(i) 5 B. & A. 107. (e) Guildhall, after Hill. 1796. Park, 142. (a) And it has been held that a loss arising from rats eating holes in the bottom of a ship IS not withm any of the perils enumerated in the policy. Hunter v. Potts, 3 Camp. 20C. (6) 2 B. & A. 315. See also the case of Phillips v. Barber, 5 B. & A. 161. (0 3 Taunt. 227. PERILS OF THE SEA, FIRE, ETC. 153 Court had considered, and they had thought it was a ^^ peril of the sea.''* And, therefore, the rule was refused. Secondly, under this section we will consider the next risk mentioned in the policy, viz: "Fire," which is insured against by the underwriters in the ex- press terms in the policy. The first case I shall refer to on the subject is the important case of Pelly v. The Governor and Company of Royal Exchange Assurance, (a) This cause came before the Court on a case reserved for their opinion, after a trial and verdict for the plaintiff, at Guildhall, before Lord Mansfield. The case stated "that the plaintiff, being part-owner of the ship Onslouu an East India ship, then lying in the Thames, and bound on a voyage to China, and back again to London, insured it "at and from London, to any ports or places beyond the Cape of Good Hope, and back to I^ondon, free from average, under ten per cent, upon the body, tackle, apparel, ordnance, munition, artillery, boat, and other furniture of and in the said ship : beginning the adventure upon the said ship, from and immediately following the date of the policy, and so to continue and endure until the ship shall be arrived as above, and there anchored twenty-four hours in good safety." The perils mentioned in the policy were the common perils, viz: " of the seas, men-of-war, fire," &c. The ship arrived in the river Canton, in China, where she was to stay to clean and refit, and for other purposes. Upon her arrival there, the sails, yards, tackle, cables, rigging, apparel, and other furniture, were, by the captain's order, taken out of her, and put into a warehouse or storehouse, called a bank-saul, built for that purpose on a sand-bank, or small island, lying in the said river, near one of the banks called Bank-saul Island, in order to be there repaired, kept dry, and preserved, till the ship should be heeled, cleaned, and refitted. Some time after this, a fire broke out in the bank-saul, belonging to a ^ ^970 -1 Swedish *ship, and communicated itself to another bank-saul, and L J from thence to that belonging to the Onslow, and consumed the same, together with all the sails, yards, &lc., belonging to the Onslou; that were therein. The case states further, that it was the universal and well-known usage, and has been so for a great number of years, for all European ships which go a China voyage, except Dutch ships, (who for some years past have been denied this privilege by the Chinese, and who look upon such denial as a great loss) when they arrive near this Bank-saul Island, in the river Canton, to unrig the ships, and to take out their sails, yards, tackle, cables, rigging, apparel, and other furniture ; and to put them on shore in a bank-saul, budt for that purpose on the said island, (in the manner that had been done by the captain of the Onsloiv on the present occasion) in order to be repaired, kept dry, and preserved, until the ships should be heeled, cleaned, and refitted. The case adds, that so doing is prudent, and for the common and general benefit of the owners of the ship, the insurers, and insured, and all persons concerned in the safety of the ship. The ship arrived from her said voyage in the Thames, having been again rigged, and put in the best condition the nature of the place and circumstances of affairs would permit. The question for the opinion of the Court was, whether the insurers are liable to answer for this loss, so hap- pening upon the bank-saul, within the intent and meaning of this policy } The Court, after a solemn argument, took time to consider the question, and then Lord Mansfield delivered the unanimous opinion of the Court for the plaintiff. Lord Mansfield. — "By the express words of the policy, the defendants have insured the 'tackle, apparel, and other furniture of the Onslow,' from («) 1 Burr. 341, before referred to, ante, p, 197. 154 PERILS OF THE SEA, FIRE, ETC. /?rp, during the whole of her voyage, until licr return in safety to London, without any restriction. Her tackle, apparel, and furniture, were inevitably burnt in China, during her voyage, before her return to London. The event, then, which has happened, is a loss within the geneial words of the policy ; and it is incumbent upon the defendant to show, from the manner in which r *9«n 1 ^^'^ ^misfortune happened, or from other circumstances, that it L J ought to be construed a peril, which they did not undertake to bear. If the chance be varied, or the voyage altered, by the fault of the owner or master of the ship, the insurer ceases to be lial)le; because he is only under- stood to engage that the thing shall be done safe from fortuitous dangers, pro- vided due means are used by the trader to attain that end. («) But the master is not in fault, if what he did was done in the usual course, and for just rea- sons. The insurer, in estimating the price at which he is willing to indemnify the trader against all risks, must have under his consideration the nature of the voyage to be performed, and the usual course and manner of doing it. Every thing done in the usual course must have been foreseen and in contemplation at the time he engaged ; he took the risk upon a supposition that what Mas usual or necessary should be done. In general, what is usually done by such a ship, with such a cargo, in such a voyage, is understood to be referred to by every policy, and to make a part of it as much as if it were expressed. The usage being foreseen is rather allowed to be done, than what is left to the mas- ter's discretion, upon unforseen events ; yet if the master ex justa cansci, go out of the way, the insurance continues. Upon these principles it is difficult to frame a question which can arise out of this case, as stated. The only objec- tion is, that they were burnt in a bank-saul, and not in the ship ; upon land — not at sea, or upon water : and, being appertincnt to the ship, losses and dan- gers ashore could not be included. The answer is obvious. First, the words make no such distinction : secondly, the intent makes no such distinction. Many accidents might happen at land, even to the ship. Suppose a hurricane to drive it a mile on shore; or an earthquake may have a like effect. Suppose the ship to be burnt in a dry dock ; or suppose accidents to happen to the r *281 1 **^^^^^ ^^PO" ^^"^' taken from the ship, while accidentally and ^ -• occasionally refitting, as on account of a hole in its bottom or other mischance. These are all possible cases. But what might arise from an acci- dental repair of the ship is not near so strong as a certain, necessary conse- quence of the ordinary voyage, which the parties could not but have in their direct and immediate contemplation. Here the defendants knew that the ship must be heeled, cleaned, and refitted, in the river of Canton : they knew that the tackle would then be put in the bank-saul : they knew it was for the safety of the ship, and prudent that they should be put there. Had it been an acci- dental necessity of refitting, the master might have justified taking them out of the ship, ex justa causa : but describing the voyage is an express reference to the usual manner of making it, as much as if every circumstance was men- tioned. Was the chance varied by the fault of the master,^ It is impossible to impute any fault to him. Is this like a deviation? No : 'tis ex justa causa, whicli always excuses. Had the insurers in this case been asked whether the tackle should be put in the bank-saul ? they must, for their own sakes, have msisted that it should. They would have had reason to complain, if, from their not being put there, a misfortune had happened. In such a case the master would have been to blame, and by his fault would have varied the chance. (o) If the underwriter insures against the barratry of the master, he would be liable for his misconduct. And see post, that in general the insurer is not discliarged by reason of the fault or negligence of the master and mariners. PERILS OF THE SEA, FIRE, ETC. 155 They have taken a price for standing in the plaintiff's place, as to any losses he might sustain in performing the several parts of the voyage, of which this was known and intended to be one. Therefore we are all of opinion, that in every light, and in every view of this case, in reason and justice, and within the words, intent, and meaning of this policy, and within the contemplation of the parties to the contract, the assurers are liable to answer this loss." This case has been confirmed by Lord Kenyon„ and the whole Court of King's Bench, in the case of Brough v. IVIiitmore. (d) *It has been observed, that the immediate and not the remote p ^^go "1 cause of a loss is that which is looked to by the Court in constru- >- -^ ing a policy; and if this be covered by the terms expressed by the policy, the underwriters are liable, altliougli the event may be attributable, in the first instance, to a remote cause of a different description, (a) Thus in a late case of Gordon v. Rhnmington, (b) it became a question, whetlier a voluntary burning of a ship, to prevent her from falling into the hands of the enemy, be a loss "by fire," within the policy.^ Lord Ellen- borough said, "-The case is new, but I am clearly of opinion that the plaintiff is entitled to recover. Fire is expressly mentioned in the policy, as one of the perils against which the underwriters undertake to indemnify the assured; and if the ship is lost by "fire," it is of no consequence whether this is occasioned by a common accident or by lightning, or by an act done in duty to the state. Nor can it make any difference whether tlie ship is thus destroyed by third persons, oflicers of the king, or by the captain and crew, acting with loyalty and good faith. Fire is still the causa causans, and the loss is covered by the policy." The plaintiff had a verdict. So also when the immediate cause of the loss was "fire," occasioned by the negligence of the crew, it was held that the assurers were liable on a policy by which the assured were protected from "fire." Thus in the case of Busk v. J?oyal Exchange Assurance Company^ (c) which was an action of covenant upon a policy of assurance on the ship Caro- Una, "at and from Amsterdam to St. Petersburg,'''' the policy was in the usual form, and stated among other risks which the defendants took upon them- selves, "fire, barratry of the master and mariners, and all other perils, losses, and misfortunes," &;c. The declaration alleged that during the voyage, the ship was consumed by fire. It appeared that the master of the p ^.^g^ -, Carolina upon *arriving at Biorkoo Sound on the 25th of Novem- L J ber, paid off the crew, left the ship in the care of the mate, and proceeded upon business to St. Petersburg ; the mate continued in charge of the ship till the 9th of January following. On that day he lighted a fire in the ship's cabin, and in the evening, without leaving any body on board, he went on board another ship lying contiguous. At twelve o'clock at night he looked out from the ship he was in, found every thing quiet, and went to bed. In the morning he was alarmed by fire. The vessel was soon consumed. It was admitted the loss arose from the negligence of the mate in lighting a fire in the cabin, and not seeing that it was properly extinguished. The jury found a verdict for the defendants. Upon a motion for a new trial, it was olijected for the defendants, that as the loss was admitted to have taken place by tlie negligence of the mate, and as that did not by the law of England amount to barratry, and as the assured had protected themselves from the consequences of the fraud only, and not of the negligence of the master and mariners, he was not entided to recover on the terms of the policy. Bayley, J., "The policy expressly throws upon (d) 4 T. R. ante, p. 91. (a) Ante, p. 268. lb) I Camp. 123. (c) 2 B. & A. 73. 156 PKUILS OF THE SEA, FIRK, ETC. the uiulerwritors tlio linhility for all losses proceeciiiif^ from 'fire, barratry of llie master ami mariners, and all otlior perils,' &,c. Tin; object of the assured was certainly to protect liimself against all risks incident to marine adventure. The underwriter being, therefore, liable prima facie by the express terms of the policy, it lies upon him to discharge himseif. Does he do so by shewing that the fire arose from the negligence of the master and mariners.^ If tlie ship had been wilfully set on fire, it would have been barratry, and the underwriters would be liable, but it has been argued, that the underwriters are only liable for a loss by barratry, because that is one of the risks expressly mentioned in the policy, and that tlie negligence of the master and mariners not being a risk expressly descrilied in the policy, the underwriters are not liable for a loss thereby occasioned. In this case, however, the loss is occasioned by fire, , -, against which the assured is protected by the terms of *the policy; L ■■^*''* J .ji^j^ in our law, at least, (here is no authority which says that the underwriters are not liable for a loss, the proximate cause of which is one of the enumerated risks, but the remote cause of which may be traced to the mis- conduct of the master and mariners. If, indeed, the negligence of the master would exonerate the underwriter from responsibility in case of a loss by fire, it; would also do so in cases of loss by capture or perils of the sea : and it would, therefore, constitute a good defence in an action upon a policy, to shew that the captain had misconducted himself in the navigation of the ship, or that he had not resisted an enemy to the utmost of his power. It is certainly a strong argument against the objection now raised for the first time, that in the great variety of cases upon marine polici(^s, which have been the subjects of litigation in Courts of Justice (the facts of which must have presented a ground for such a defence) no such point has ever been made." The learned Judge, after refer- ring to the foreign authorities upon the subject, (o) proceeds thus, "We must, therefore, endeavour to collect the meaning of the contracting parties from the terms of the policy itself, and in considering whether the assured claiming for a loss by fire, is to have that claim disallowed on the ground that the fire was occasioned by the misconduct of the master and mariners : we must look to the other terms of the policy, and learn from them whether the assurers in other instances are responsible for the misconduct of the master, and when we find that they make themselves answerable for the wilful misconduct of the master; in other cases it is not too much to say, they meant to indemnify the assured against fire proceeding from the negligence of the master and mariners." So also it was held in the case of Walker v. MaitlantU ip) that the under- writers on a policy were liable for a loss arising from a "peril of the sea," although it was remotely owing to the neglect of the master and mariners. For r *285 1 ^'^^ Court held, *that the immediate cause of the loss was the vio- L J lence of the winds and the waves, and Chief Justice .%bott said that he was afraid of laying down any rule which would introduce an infinite number of questions as to the quantum of care which, if used, might have prevented the loss, (c) So likewise in the case of Bishop v. Pentland,{d) where a ship was stranded within the meaning of that word in the policy, it was held that the underwriters were liable for a partial loss, although the stranding might have been occasioned remotely liy the negligence of the crew in not providing a rope of sufficient strength to fasten the vessel to the shore. (a) See Pothier traite du Contrat d'Assurance, s. 53. Valin, liv. 3, tit. 6, des Assu- rances, art. 2G. 1 Emerig. p. 434. (i,) 5 B. & A. 171. (c) And see Heynianv. Parish, 2 Camp. 148, and Blyth v. Shepherd, 9 .M. & W. 763. (rf) 7 B. & C. 219. 1 . ^ f . MEN-OF-WAR, ENEMIES. PIRATES, ETC. 157 SECTION XI. OF ••JETTISONS. Another ri^k which the underwriters take upon themselves is that of •'jet- tisoii." Upon which subject the case of Bullcr v. JVildman, (c) is an author- ity. The circumstances of that case were these : — a captain of a Spanish ship, in order to prevent a quantity of dolhirs from faUinff into the hands of the enemy, by whom he was about to be attacked, threw them into the sea, and was immediately after captured: the policy was in the conimoa form, one of the risks taken upon by the underwriters heinrr ••jettisons," expressed in the policy. There was a demurrer to the declaration. Mbott. C. J., after refer- ring to the form of the declaration, said, ''the question then arises whether this be a loss for which the underwriters are liable. I am of opinion that this is a loss bv jettison, or if not. strictly speaking, by jettison, it is something ejifsdem p^cneris, and tlierefore tails within the general words, 'all other losses and mis- fortunes,' " &sc. Jettison, in its largest *sense, however, signifies p ^^^qp -\ any throwing overboard : but in its ordinary sense it means a L J throwing overboard for the preservation of the ship and cargo, and most of the jurists treat of it in this sense, under the head of general average. The present case is an extraordinary species of jettison. I cannot, however, distinguish it in principle, from the case where the captain sets fire to his ship to prevent her falling into the hands of tl\e enemy. Now it is laid down, by Emerigon and Pothier, that the underwriters are liable for such a loss ; and I think, therefore, thev are so in the present case." And Ben/ley. .T., says, "I am of the same opinion. If the dollars had not been thrown overboard, it is clear that they would have fallen into the hands of the enemy, for the ship was, in point of fact, taken: and if the loss here stated had been declared upon as a loss by jettison, or by enemies, or within the concludins; words 'all other losses and misfortunes.' the facts stated would have supported that averment. .Tettison, in its largest sense, means any throwing overboard. In the passage cited from Emerigon. he is treating of jettison with reference to cases of general average, where jettison is used in a confined sense. But its true meaning, in a policy of insurance, seems to me to be any casting overboard ex junta causa. But assuming that this was not strictly 'jettison,' it is something ^ejusdem generis." and may therefore be comprehended within the words 'all other losses and misfortunes.' " SECTION XII. MEN-OF-WAR, ENEMIES, PIRATES, ROVERS, THIEVES, ETC. This head of the risks taken upon themselves by the assurers, refers to what is generally in one single term called "capture," and is of little moment, either to the assured or assurer, during the time of peace ; and, likewise, p *287 "1 (as Mr. J. Park remarks in his^ Treatise) even in the time of *war L (c) 3 B. & A. 398. 158 MEN-OF-WAR, ENEMIES, PIRATES, ETC. the question relating to captures as between the assured and the assurer, is of very little difficulty, (a) Capture may be said to be, as applied to this sub- ject, the taking of the ships or goods belonging to the subjects of one country by those of another, when in a time of war. An important observation, how- ever, is to be made here upon the general terms used by the assurers in the policy, by which it is to ])e seen tliat they take upon themselves to indemnify the assured from the effect of all capture, and detainment and restraint of all princes, without any exception in respect to the acts of the government of their own nation. But it is now quite setded by the cases of Jiell v. Potts, {//) and Fur/ado v. Rogprs^ [c) and other cases, that all insurances of enemies' pro- perty from the eifects of capture by the acts of die government of the country of the underwriter, are illegal at the common law, and cannot be enforced in a Court of Justice. Lord Alvanley, who delivered the judgment of the Court of Common Pleas in the latter of diese cases, in conclusion ends with these words, "The ground upon which we decide this case is, diat when a British subject insures against captures, the law infers that the contract contains an exception of captures m.ide by the government of his own country ; and that if he had expressly insured against British capture, such a contract would be abrogated bv the law of England.'''' The law relating to this question is perfecUy setded in England., and was laid down bv Lord Mansfield in the case of Goss v. Withers, Mich. Term, 32 Geo. 2. {d) This was a special case from the Sittings in London upon two actions, on two distinct policies : one "on the ship," the other "upon the loading." The case states, that the ship departed from her proper port and was t^iken by the French on the 23rd December, 1756, and that the master, mates, and all the sailors, except an apprentice and landsman, were taken out and carried to r *''88 1 ^^"^^'^^> ^^^'■^^ ^'^*^ ^hip remained in the *hands of the enemy eight L " J days, and was then retaken by a British privateer, and brought in on the 18th January to Milford Haven: and that immediate notice was given by the assured to the assurers, with an offer to abandon the ship to their care. It was also proved at the trial, that before the taking by the enemy a violent storm arose at sea, Avhich first separated the ship from her convoy, and after- wards so far disabled her as to render her incapable of proceeding on her des- tined voyage without going into port to refit. It was also proved, that part of the cargo was thrown overboard in the storm, and die rest of it was spoiled whilst the ship was at Milford Haven, after the offer to abandon, and before she could be refitted. Several questions arising- upon the trial of the first said causes, it was agreed that the jury should bring in dieir verdict, in both cases, for the plaintiffs, as for a total loss, subject, however, to the opinion of the Court on the following questions, viz : — 1st. Whedier this capture of the ship by the enemy was or was not such a loss as that the assurers became liable thereby? 2ridly. Whether, under the several circumstances of this case, die assured had or had not a right to abandon the ship to the assurers, after she was carried into Milford Haven? Tim case was argued twice, viz: first, on Tuesday, 6th June, 1758, by Mr. Morton for die plaintiffs, and Mr. Serjeant Davy' (or the defendant; and again on Friday, 10th November, 1758, by Mr. Norton for the plaintiffs, and tMr liichard IJoyd for the defendanu (r;) Parkins 150. (i) 8 T. R. 548. (c)3I3. &1M91. (rf) 2 Burr. 683. MEX-OF-WAR, ENEMIES, PIRATES, ETC. 159 Mr. Morton and Mr. Norton, on behalf of the plaintiffs, argued for the affirmative on both questions, (rf) They previously distinguished between cases disputed between the assured and assurers, and those between owners and recapiors, and observed that this is a mere contract between the parties. *First point. — This is such a total loss as renders the assurers ^ *oQq -i liable to answer for it. L J The counsel said they would consider, first, what an insurance is; and, secondly, Avhat a capture by an enemy is. 1st. The definition of an insurance is in Bynkershoek^s Qiiaestiones publici Juris. («) 2ndly. A capture is, when tliere is no just ground of hope of recovering the ship, then it becomes the property of the captor — Grot'ms. (b) And the period of the time of detention is another ride, viz : being twenty- four hours in potestate hostium. Indeed, subsequent writers do not fix it so precisely, but they are treating only upon salvage, (c) Bynkershoek, indeed, differs in the premises, (r/) but both agree in the conclusion: for he also puts it upon the despair of the recovery of the ship ; and this hope, or despair, must be a reasonable and just one, not a whimsical and arbitrary fancy, or a mere wish. This vessel was eight days in possession of tlie enemy, near a month out of the power of the owners, (the assured) and almost all the hands taken out. So that by the terms and intent of the insurance, (which must be taken favourably for the assured) this must be taken to have been totally defeated to the assured, the adventure totally stopped, and, consequently, the condition broken as between the assurers and the assured. This is a total loss : it was so long in the possession of the enemy that the " s/>C5 recMperamW was gone. Tliough this ship was not carried into port, nor within the enemy's fleet, yet it was eight days in the possession of the enemy, and it might have been as many months ; ancl the spcs recuperandi would be as absolutely gone as if it had been carried into the enemy's fleet, out of wliich it might possibly be imme- diately retaken. Therefore, the being ^carried infra prsesidia of r- ^nqrx -i the enemy cannot be the true rule, but the true and certain rule L -• must, in reason, be where the '■'■spes recuperandV is gone. Indeed, the being carried infra prxsidia may, in many cases, be an evidence of this. Now, upon the state of the present case, all hope of retaking was totally lost and gone. However, the principle of this case is not new ; for by common law the thing taken from the owner in war was gone, unless the owner makes fresh pursuit, and the property of the thing so taken in war belongs to the captor. And the common law rule is, that in a war the captor of a ship has a right to the ship and goods taken, unless the owner makes fresh pursuit, '•'■ante occasum solis," 7 E. 4, 14. Vavisour{a) said, that it was adjudged in the time of that same king, "q'un q'prist tiel meason des enemies quel avoit prise devant d'un Englishe, que il averoit ceo come chose gaigne en batal, &c., et nemy le roy n I'admiral, ne le partie a qui le property fuit devant, &c., pur ((f) The second part is reserved for future consideration in this Treatise, (a) Lib. 1, cap. 21. (6) Lib. 3, cap. C, p. 814. De jure Belli et Pacis. "Tunc enim desperari incipit recuperatio," &c. (c) 29 Geo. 2, c. 34, p. 572, s. 24, (prize act.) {d) Lib. 1, cap. 4. "Qurest. Juris Publici." (a) Vavisour was not then judge, or even a serjeant. Vol. VII.— M 160 MEN-OF-WAR, ENEMIES, I'IRATES, ETC. ceo q' le partic no vieiit frpshnient, iiieme le jour q' il fiiit prisp do luy, pt niitp occasum solis, ct c-laiiiie ceo." And tliis detciiniiiation lias never l)ecn shaken bv ) (which are all upon this head,) are built upon the same principles. 'J'he savinir clause, (c) in 29 Goo. 2, c. 34, supposes the right of the owner to be extinguished and gone, and that the captor had a right to the thinsr taken: otherwise the Parliament had no right to impose upon the original owners such terms of jiayment for salvage. Tlie act itself even calls them the former owners, and it is the bounty of the act to restore to them any part at all. No mischief can arise from this construction ; many inconveniences will llow from a contrary one. The Courts of law will put liberal constructions upon policies of insurance. "1 *Th's principle was recognized in Drnn v. Dlrl;ft\ («) which L '^'^'^ J was an insurance on "'goods," by the Durtihij dalhif, "interest or no interest," at and from Jamciicn to Jiri^fol. In her jjassa^re she was taken by a Spanish privateer, and carried into Mores, a port in Spabu kfipt eight days, and cut out by an Enp^lhh ship. And the plaintiff insisting that this, though "on goods," was to be considered as a wager on the bottom of the ship, brought his action as upon a total loss. The defendant insisted that, by the statutes 13 Geo. 2, c. 4, and 17 Geo. 2, c. .34, this ship is to be restored to the owners upon paying salvage : and consequently, this was only an average loss, and the plaintiff can only recover on a total loss. IJut ('hief Justice Lee held, that in this the plaintiff ought to recover; for his is a wager upon a total loss in the voyage, and here has happened one : the beincr carried into port, and detained eight days, makes one. And where the policy is "interest or no interest," die provisions of the acts in the case of valued policies cannot take place. The act does not declare the property is not gone by such a capture, but only provides for restorincr the ship to whom it did belong, and shall be proved to have belonged. He said it might be otherwise where the recapture was made before the ship was infra praesidio, or in the case of goods actually on board, and on a valued policy. This is a question only between the assurer and the assured ; and the assurer had undertaken against all sorts of perils for premiums received. And here the vovage was totally lost, and the cargo cntirely perished. So that there could be no doubt as to the real justice of the case. (6) Sir Richard Lloyd and Mr. Serjeant Davy, on behalf of the defendant, argued upon the same two points, but made very different deductions. First, the assurers could not be liable as for a total loss (thousjh they agreed it was an average loss.) The capture of the ship was not a total loss. The property was not divested out of the owners : a mere capture, without being carried r *292 ~\ ^'}f^^ prsesidia, or some such other circumstance, *will not alter •- J the property. The taking out the mariners, and putting in the enemy's crew, is not enough to do it; nor is the detaining it eight days. In the case of Assievedo v. Cambridge, the Court held this to be very plain. "that the property was not there altered by the taking." Yet in that case there was nine days' possession. («) Dr. Henchman, in arguing for the defendant, (i) Geo. 2. (c) 24 Sec. («) 2 Strange, 1250. {h) The second point in this case is deferred for a subsequent consideration in this Trea- tise. (a) The reporter here remarks in the margin, that there is no determination of the case Itself in Lucas. He rojiorts it to be adjourned for further argument. Mr. J. Foster said, that Lucas's report of tliat case, (of which he himself had a note) was a pretty good one. See ante, p. 26, where that case is referred to. MEN-OF-WAR, ENEMIES, PIRATES, ETC. 161 said, that the question would not have borne a dispute in the Admiralty Court, for that the law is clear "that not length of time, but the bringing infra prsesi- dia, is that which divests the property;" and he cited a case of four years' possession not altering the property ; and he cited a great many authorities, to prove that the property is not divested, without bringing the ship infra prx- sidin. Bynkershoek's Quxstiones Juris Publici, lib. 1, c. 4, is contrary to Gro- tius's opinion, and says "that length of time alone is not sufficient to divest the property." [b] Bynkershoek^s opinion is "that there neither is, nor can any general rule be, laid down ibr a limit; but every case must depend upon its own circum- stances." Lord Mansfield here observed. — "He does say so. And he combats the opinion of Grotius^ (supported by many other writers) that, twenty-four hours' quiet possession is the fixed rule." There is a common law case in March, 110, pi. 188, "That the property is not altered, unless the ship be brought infra prsesidia of the enemy." The counsel for the plaintiffs, in reply, insisted, That the totality of capture depended upon the spes remperayidi, and here was none. The average loss here stipulated *for is, when the p *9oo -i voyage is performed without interruption. They do not dispute L J our principle of the spes recuperandi being the true criterion : but they say, "our ships arc in constant pursuit, in seas frequented by our men-of-war and privateers." Now it is hard to conceive a pursuit without an object, or even a knowledge that a particular ship has been taken. Fresh pursuit means, the going in quest of that particular ship which is taken. Grotitis, in lib. 3, c. 6, p. 285, says, "Sed recentiori jure gentium inter Europreos populos introductum videmus, ut talia capta censeantur, ubi per horas viginti quatuor in potestate hostium fuerint." Lord Mansfield observed, that a large field of argument had been entered into, and that it would be necessary to consider the law of nations ; our own laws, and acts of Parliament ; and also the law and custom of merchants, which make a part of our laws. On the 23rd November, 1758, his Lordship delivered the resolution of the Court. liord Mansfield. — "It is not necessary to confine what shall be said to the two distinct questions that are stated. The general question is, whether the plaintifi's were, on the 18th January, 1757, entitled to recover against the assurers as upon a total loss, under an offer 'to abandon the ship and cargo to the assurers,' for them to make what advantage of salvage they could (for an offer 'to abandon' was then made, and nothing has happened since that time to alter the case.) There is one point which we are all of opinion is imma- terial as between the assurers and the assured, viz : ' whether, by this capture, the property was, or was not, transferred to the enemy by the law of nations.' That question can happen but in two cases, namely, (1st,) between the owner and a neutral person, who has bought the capture from the enemy; and (2nd,) between the owner and reeaptor." If the ship taken by an enemy escapes from the enemy, or is retaken, or if the owner redeems (ransoms) the capture, *his property is thereby p ^cyqA n revested : which property in the ship taken was, by the law of L "^ -J nations, obtained by the captor. (b) Lord Mansfield spoke well of Bynkershoek's writings, and recommended especially his book of Prizes, Quacstiones, "Publici Juris." 162 MEN-OF-WAR, ENEMIES, PIRATES, ETC. The general proposition of writers on tliis suhjert is, that ''qua- ah hostibus capiinitur statirncapientium fiiint," which is to be understood when ** the engage- ment is over." Indeed, nothintr can be said to be Liken, till the engagement is over, and that is not over till all immediate pursuit has ceased, and all liope of recovery is gone. This is the definition of a capture, referred to by our Prize Act, 29 (Jeo. 2, c. 31, of a sliip taken by the enemy. And, accordingly. Foe/, in his Commentary upon the Pandects, {a) and many authors he refers to, maintains, with great strength, "per solam occnpa- tioneni dominium pra?da! hostil)us acquiri. " One argument used to prove it is, "that the instant the captor has got possession, no friend, no fellow soldier or ally, can take it from him, because it would be a violation of his property." Hut other writers and states have drawn other line?, by arbitrary rules: and partly from policy, to prevent too easy disposition to neutrals; and partly from equity, to extend the jus postliminii in favour of the owner. No wonder there is so great uncertainly and variety of notions amongst them, by fixing a positive boundary by the mere force of reason ; where the subject-matter is arbitrary, and not the object of reason alone. Some have said from the Roman law, (which was introduced in favour of the liberty and condition of a Roman citizen taken captive) "that the prize must be brought infra pnvsidia/' But what "custody at sea should be equal to prxsidia at land,'' is a new fund of dispute, and leaves the matter just where it was. The writers whom GrotiuH follows, and the many more who follow him, and some nations [b) have made twenty-four hours' quiet possession by the enemy the criterion. But this Bynkerslwek, (c) and other writers whom he r *295 1 ^'^^'*^"'^' ^"'^ ''several nations, absolutely deny. Some have said L J the ship must be carried into the enemy's port, condemned there, sail out again, and arrive at a friend's port. All these circumstances are very arbitrary : and, therefore, this is generally exploded. I have taken the trouble to inform myself of the practice of the Court of Admiralty in England, before any Act of Parliament commanded restitution, or fixed the rate of salvage : and I have talked with Sir George Lee, who has examined the books of the Court of Admiralty, and informs me, that they held the property not changed so as to bar die owner in favour of a vendee or recap- tor, till there had been a sentence of condemnation : and that in the reign of King Charles the Second, Sir Richard Floyd gave a solemn judgment on the point, and decreed restitution of a ship retaken by a privateer, after she had been fourteen weeks in the enemy's possession, because she had not been con- demned. Another case, upon the same principle, against a vendee, is cited at the end of Assievedo v. Cambridge, in 1695. (a) after a long possession, two sales, and several voyages. But whatever rule ought to be followed in favour of the owner, against a recaptor or vendee, it can in no w^ay affect the case of an insurance between the assurer and assured. Upon an action against the hundred for a robbery, a question might as well be started, ''whether the property in the goods! as against the owner was changed by the sale." The ship is lost by capture ; though she be never condemned at all, nor carried into anv port or fleet of the enemy : and the assurer must pay the value. If, after condemnation, the owner recovers or retakes her, the insurer can be in no other condition, than if she had been recovered or retaken before condemnation. The reason is plain from die nature of the contract. The assurer runs the risk of the assured, and unoertakes to indemnify : he must therefore bear the loss actually sustained, («) Lib. 49, tit. 1.5, vol. 2. 1155. (i) Ord. of Lewis XIV. (c) Quaest. Jur. Pub. lib. i, c. 4. («) Lucas (79). MEN-OF-WAR, ENEMIES, PIRATES, ETC. 163 and can be liable to no more. So that if after *condemnation the ^ ^^gp -i owner recovers the ship in her complete condition, but has paid L -• salvage, or been at any expense in getting her back, the assurer must bear the loss so actually sustained, (a) The single question, therefore, upon which this case turns is, "whether the insured had, under all the circumstances upon the 18th of January, 1757, an election to abandon. The loss and disability was in its nature total, at the time it happened. During eight days the plaintiff was certainly entided to be paid by the assurer as for a total loss : and in case of a recapture, the insurer would have stood in his place. The subsequent recapture is at best a saving only of a small part; half the value must be paid for salvage. The disability to pursue the voyage, still continued. The master and mariners were prisoners. The charter-party was dissolved. The freight (except in proportion to the goods saved) was lost. The ship was necessarily brought into an English port. What could be saved might not be worth the expense attending it. The subsequent tide to restitution arising from the re- capture, at a great expense, of the ship, disabled to pursue her voyage, cannot take away a right vested in the assured at the time of the capture. But because he cannot recover more than he has suffered, he must abandon what may be saved. The better opinion of the books says, "Sufficit semel extitisse con- ditionem, ad beneticium assecurati de amissione navis, etiam quod postea sequeretur recuperatio : nam per talem recuperationem non poterit praejudicari assecurato." I cannot find a single book, ancient or modern, which does not say, "that in the case of the ship being taken, the assured may demand as for a total loss, and abandon." And, Avhat proves the proposition most strongly is that by the general law, he may abandon in the case merely of an arrest, on an embargo, by a prince not an enemy. Positive regulations in different coun- tries have a precise time before the assured should be at liberty to abandon in that case. The fixing a precise time proves the general principle. *No capture by the enemy, though condemned, can be so total p ^^g-, -. a loss as to leave no possibility of a recovery. If the owner him- ^ J self should retake at any time, he will be entitled : and, by the act of Parlia- ment, if an English ship retakes at any time, (before condemnation or after) the owner is entided to restitution upon stated salvage. This chance does not suspend die demand for a total loss upon the assurer, but justice is done by putting him in the place of the assured in case of a recapture. In questions upon policies, the nature of the contract as an indemnity, and nothing else, is always liberally considered. There might be circumstances in which a capture would be but a small temporary hindrance to the voyage; perhaps none at all, as if a ship was taken and in a day or two escaped entire and pursued her vovage. There are circumstances under which it would be deemed an average loss : if a ship taken is immediately ransomed by the master and pursues her voyage, there the money paid is an average loss. And in all cases the assured may choose "not to abandon." in the second part of the >■<• Usages and Customs of the Sea,'" (a French work translated into English) a treatise is inserted called, " Ze Guidon," where, after mentioning the right to abandon upon a capture, he adds, "or any other such disturbance as defeats the voyage, or makes it not worth while or worth the freight to pursue it. We are, therefore, clear that the loss was total by the capture ; and the right which the owner had after the voyage Avas defeated, "to obtain restitution of the ship and cargo, paying great salvage to the recaptor, might be abandoned to the assurers, after she was brought into Milford Haven.'" The postea to the plaintiff in both causes. (a) See ante, p. 27, where Lord Mansfield's judgment is also given, and his observa- tioas on the different cases relating to the subject. 164 MEN-OF-WAR, ENEMIES, PIRATES, ETC. From the above full report of this case, together with the luminous obser- vations of Lord Mansjidd^ in delivering the judgment, the reader will liave gathered a considerable knowledge of the law of insurance, as applicable to the r *9QS 1 ^^^^ of capture. It will be necessary to pursue the subject farther, L J *\vith the consideration of some other principles which on this subject have been setded. In the first place, it is not lawful to insure against Brilish capture, and such an insurance is void. This is settled in the cases of lAibbocIc v. Potts, (a) and Glover v. Coivie. (b) Secondly, it has also been decided in the case of Jierens v. Rucker^ (c) that where a capture has been made, whether legal or not, the assurers are liable for the charges of a compromise made bona fide to prevent the ship being con- demned as a prize. It was an action on a policy of insurance on a Dutch ship, called the Tyd, and its cargo, at and from Saint Euatutius \oAmstcrdanu warranted a Dutch ship, and the goods Dutch property, and not laden in any French port in the West Indies. The cargo was worth 12,000/.. and was insured at a premium of fifteen guineas j;cr cent.., which was advanced to this high rate on account of the number of captures made by the English of neutral vessels, on suspicion of illicit trade, and the detention of those vessels, by the proceedings in the Courts of Admiralty. The defendant underwrote 82/. of the plaintifl"'s, for a premium of 12/. IS*. 3(/. In JIuij, 1758, the ship was at Saint Eustatius taking in her cargo, which consisted of sugar and indigo, and other French commodities, which were put on board her, partly out of barks from sea, partly from the shore of the island. On the 18th of June, 1758, she sailed on her voyage; on the 27th, she was taken by an English privateer and carried into Portsmouth. On the 1st of .^ugust^ the sailors were examined upon the standing interrogatories prescribed by the statute of 29 Geo. 2, c. 34, and the captain entered his claim in the Admiralty Court. In October, 1758, the claimants were cited to specify what part of the goods Avere taken from the shore of Saint Eustatius, and what from the barks. Citation was continued r *299 1 ^'°"^ Court to Court *till February, 1759, when an interlocutory ^ -^ decree was pronounced for the contumacy of the claimants in not specifying, and that therefore the goods should be presumed French property. There was an appeal to the Lords Commissioners of Prizes: but as many causes stood before it, as the market was very high, and as the cargo was in part perishable, the agent of the owners agreed widi the captors to give them 800/. and costs to obtain the reversal of the sentence. The reversal was had by consent, and, in order to give costs to the captor, it was decreed by consent, that there was a sufficient cause for seizure ; and thereupon costs were decreed to the captors, and restitution of the cargo to the owners was also ordered. The ship, when restored, proceeded to Amsterdam: and after her arrival there, the Chamber of Insurances in that citv settled the average of the plaintiff towards the loss and expenses at 14/.' 3s. 8rf., occasioned by the capture, detention, and litigation ; and for this sum the action was brought. Lord Mansfield. — -'The first question is, whether this was a just capture.' Both sentences are out of the case, being done and undone by consent. The capture was certainly unjust. The pretence was, that part of this cargo was pnt on board off Saint Eustatius, out of barks supposed to come from the French islands, and not loaded immediately from the shore. This is now a settled point by the Lords of Appeal, to be the same thing as if they had been (a) 7 East, 449. (o) 1 M. & S. 52, and see ante, at the commencement of this section, (c) 1 Black. 313. MEN-OF-WAR, ENEMIES, PIRATES, ETC. 165 landed on the Dutch shore, and then put on board afterwards : in which case there is no colour for seizure. The rule is, that if a neutral ship trade to a French colony, with all the privileges of a French ship, and is thus adopted and naturalized, it must be looked upon as a French ship, and is liable to be taken. Not so. if she have only French produce on board, without taking it in at a French port; for it may be purchased of neutrals. "The second question is, whether the owners have acted bond fide and uprighdy. as men acting for themselves, and upon a reasonable footing; so as to make the expenses of this compromise a loss to be borne by the insurers. The order *of the Judge of the Admiralty to specify was illegal, ^ sqnn -i contrary to the marme law and the act of Parliament, which is only L J declaratory of the marine law ; because if they had specified, it could be of no consequence, according to the rule I before mentioned. The captors were, however, in possession of a sentence, though an unjust one : and a Court of Appeal cannot or seldom does, upon a reversal, give costs or damages, Avhich have accrued subsequent to the original sentence : for these damages arise from the fault of the Judge, not of the parties. Under all these circumstances, therefore, the owners did wisely to offer a compromise. The cargo was worth 12,000/.; the appeal was hazardous; the delay certain. The Dutch deputy in England negociated the compromise ; the Chamber of Commerce at Amster- dam ratified it, and thought it reasonable. Had the whole sentence been totally reversed, the costs must have sat heavy on the owners. I therefore think the insurers liable to answer this average loss, which was submitted to in order to avoid a total one." The jury found for the plaintiff, agreeably to the above direction, (a) Thirdly : It was formerly a common practice to ransom British sliips when taken by the enemy, by delivering to the captor what was called a ransom bill, which secured to him the price agreed upon, and operated as a bill of sale to the oriofinal owners, and as a protection to the ship against other cruisers of the enemy during the remainder of her voyage. A hostage was likewise delivered to the captor to secure him the punctual payment of the stipulated sum. Actions at common law were formerly maintained upon ransom bills. But the Court of King's Bench at length decided that such actions could not be maintained, as an alien enemy cannot sue for any right claimed to be acquired by him in actual war, Anthon v. Fisher, (b) But the practice of ransoming ships cap- tured by the enemy being found to operate more to the *disadvan- ^ „„„. -, tage than the benefit of this country, it was at length prohibited L -^ altogether by act of Parliament. By 22 Geo. 3, c. 25, it is declared unlawful for any of his Majesty's subjects to ransom, or enter into any contract for ran- soming any ship or vessel belonging to any of his Majesty's subjects, or any merchandises or goods on board the same, which shall be captured by the sub- jects of any state at war with his Majesty, or by any person committing hostilities against his Majesty's subjects. And, by the 2nd section, that all contracts and agreements entered into, and all bills, notes, and other securities, given for ransom of any such ship or goods on board the same, contrary to the act, shall be void in law, and of no effect whatever : and, by the 3rd section, a penalty of 500/., with costs, is given to the informer against any person who enters into this species of contract. The same law was still further enforced by occasional acts of Parliament, passed during the war. (o) And it would, (a) In T5-son v. Gurney, 3 Term Rep. 477, this case was quoted without contradiction; and the point, in support of which it was adduced, was held accordingly. (b) 3 Doug. 166. (a) 33 Geo. 3, c. 66; 43 Geo. 3, c. 160; 45 Geo, 3, c. 72, now expired. 166 MEN-OF-WAR, ENEMIES, PIRATES, ETC. therefore, follow as a necessary consequence, that no money paid on such account could be recovered from the underwriters. Upon this principle the following decision has taken place, in the case of Havelock v. Lockwood. [b) The ship Themis was insured for twelve months, and during that period was captured and carried into Bergen, in Norivay, and there condemned by the French consul. After this sentence, the ship was put up to public auction at Bergen., by the public officer of the Court of Denmark, havino- been previously advertised, and was re-purchased by the agent of the plaintiff; and for this re-purchase money the plaintiff insisted, (if not entitled to recover as for a total loss,) he was at all events entitled to a verdict. The Court, after hearing two arguments, were unanimously of opinion that, as the sentence of the French consul in a neutral country, was contrary to the r -Qn-> 1 ^^^^ ^^ nations, and void, *the property never was devested out of L J the original owner; and that, therefore, the money paid for the re-purchase was in the nature of a ransom. The ransom acts are remedial laws, and in the construction of such acts it is the rule to extend the remedy so as to meet the mischief, and the liegislature intended to prevent such a transac- tion as the present taking place, because it would take away the cliance of re-cap- ture. The circumstances of this being done by an agent, at an auction, and on land, were deemed immaterial, the acts of Parliament not having described at what places, or in what form a ransom is prohibited; but, having prohibited ransom in general terms, the case was thouglit to come within the mischiefs against which those statutes were meant to guard. A loss is properly described to have taken place "by capture," when that is the immediate and operative cause of the loss of the thing insured. As in the case of Green v. Elmslie, (a) where a ship was driven, by stress of weather, upon an enemy's coast, and there captured, the loss was properly treated as a loss by capture. And in the case of Arcangelo v. Thompson, (h) where two causes combine together in occasioning a loss, it may be averred in the declara- tion to have arisen from either : as where a ship was barratrously delivered into the hands of the enemy, the loss may I)e alleged to have happened either by barratry or by capture. But an averment of a loss by capture cannot be sus- tained if the ship were not taken '■'•jure belli.'''' As in the case of Mathie v. Potts, (r) where goods, which were prohibited by the Spanish revenue laws at Campeachy, were put on board launches for the purpose of being smuggled r **iO'i ~1 ^" shore, and were seized by the Spanish Govermnent, the loss L J *was held not to be well described by an averment, that the goods were seized, captured, and taken in a forcible and hostile manner, by certain persons, enemies of our lord the king, to the plaintiffs unknown. In cIinrtfT-parties, if the vessel freighted was robbed or taken by pirates, that was held to be a loss within the meaning of the words "perils of the seas." And the same rule of construction prevails as to policies of insurance. («) And Lord MansfichJ, in Gosa v. JVithers, {b) says, "A capture by a pirate (and in Spain, Venice, and England, the goods go to the captor of the pirate, against the owner : as there can be no condemnation to entitle the pirate, or a capture, under a commission, where there is no war) does not change the pror (4) 8 T. R. 268. (a) Pcake, 212, ante, p. 270. {!)) 2 Camp. 620. And in thn case of BIyth v. Shoplioni, it was held that a count on a policy of insurance allo!,'iin,' a loss hy "perils of the sea," and anotlicr count hy '•barra- try" of the ni;iHtnr, cannot lie pleaded together. 9 M. & W. 703. (c) .') IJos. cSc Pull. 23, ante, J). l.>2. («) 2 Roll. Ahr. 248, pi. 10 Combcrbatch, 56. (6) 2 Burr. 694. MEN-OF-WAR, ENEMIES, PIRATES, ETC. 167 perty. Yet, as between the assurer and assured, they are just upon the same ibotiiiir as captures by an enemy." And in the case of Seivell v. The Royal Exchana;e, Assurance Company (c) it was lield, ''that tbe owners of a vessel who, by performin<^ the stipulations of a charter-party, provoke confiscation by the illegal and piratical act of a foreign slate, may recover against the assurers, declaring tlieir loss to be by forcible seizure and capture of persons unknown." The underwriters undertake, likewise, to bear the depredations of rovers and thieves. In Mulyne^ () Mahjne lays the law down "that assurers are liable for all losses by arrests, detainments, &c., happening both in time of war and in peace, committed by the public authority of princes." (c) And Lord Mansfield said, in the case of Goss v. Hither s, [d) "that the assured may abandon in case merely of an arrest or embargo by a prince, not an enemy : and, consequently, such an arrest is a loss within the meaning of the word 'detention.' " r *onp -1 111 *'i6 case of Nesbitt v. Lushington, (c) the question arose ^ -' *what the word " people" in this clause of the policy meant. The declaration claimed a loss of corn occasioned by the unlawful arrest, restraint, and detention of people to the plaintiffs unknown. The facts were, that the ship being forced into Ehj Harbour^ in Ireland^ and a great scarcity of corn happening to be there at tliat time, the people came on board in a tumultuous manner, took the government of the vessel from the captain and crew, weighed her anchor, by which she drove upon a reef of rocks, and would not leave her, till they had compelled the captain to sell almost the whole of the corn con- siderably below its invoice price. The word "people," it was contended at the IJar, meant individuals of a nation as opposed to magistrates or rulers. Lord Kcnyon says, "that which happened in this case, does not fall within the meaning of 'arrests, restraints, and detainments of kings, princes, and people.' The meaning of the word ' people' may be discovered here by the accompany- ing words, (noNcifirr a sodis\) it means the ruling power of the country." Mr. .lusticc! BuUer. — '"I cannot agree with the construction put at the Bar upon the word 'people;' it means the supreme power; the power of the country, whatever it may be. This appears clear from another part of the policy ; for where tlie underwriters insure against the wrongful acts of indi- viduals, they describe them by the names of 'pirates, rovers, thieves,' (a) then, having stated all the individual persons, against whose acts they engage, they mention other risks, 'those occasioned by the acts of kings, princes, and peo- ple, of what nation, condition, or quality whatsoever.' Those words, there- fore, must apply to nations in their collective capacity." Secondly, we will consider what is called an embargo? An embargo is an arrest laid on ships or merchandise by public authority, or a prohibition of state commonly issued to prevent foreign ships from putting to (a) Roc. dc Asscc. Not. 54. (i) lb. Not. 65. (c) Malynn, 110. (' Orient, under tlie embargo, wliich has continued ever since on all ships destined on long voyages : and none have since been permilted to sail, except those in government service or upon sliort coast- ing voyages. The Adele and r7c/or had entered outwards upon tlie voyages insured, when tlie embargo came? and that alone prevented the ships from sailing. Notice of abandonment was given to the underwriters on the 27di February, 1793. and a total loss claimed ; and the like notice and claim were repeated in August, 1793. Lord Kenyan. — "I have looked into all the cases which have been cited, and I have also considered the passages collected from foreign writers, and the most respectable of them seem to me to coincide with the construction which an English court of justice would put upon such an instrument as the present. This plaintiff is under no disability to sue, and the defendant has entered into an engagement to indemnify him against arrests, restraints, and detainments of all kings, princes, and people, of what nation, condition, or quaUty soever. By this peril, the ship has been detained near three years, and the voyage is defeated : but the plaintiff is to be told this is not a loss within the policy. No common man reading the words of the policy could doubt upon the question : and it is by artificial reasoning only, collected by great reading upon foreign authors, that his claim can be repelled. But in truth, when examined, the research turns out to be all one way, and that is in lavour of the plaintifi". Roccus, Le Guidon, Green v. Young, from Lord Raymond, are all one way : and although Lord Holt is said not to have given an absolute opinion, every- thing that fell in judgment from that great man is deserving of the liighest attention. *Lord Mansfield, too has given an opinion upon the ^ ^^^2 "] very point; (a) and when to this current of authorities we add the L words of the policy itself, it is perfecdy clear. Suppose war had been de- clared, and the ship had been detained in port as a prize, could there have been a doubt.'' and I can see no difference between the cases." The other Judges delivered their opinions seriatim, concurring unanimously with his Lordship: and there was judgment for the plaintiff'. •'In deciding the above case," says" Mr. J. Park, at p. 174, of his Trea- tise, "the learned Judges expressly declined giving an opinion upon the effect of an embargo laid by the government of this country upon a ship insured here. The case of Green v. Young, above stated, was indeed an embargo by the British governmenu The very point arose, and came on for argument upon (a) 2 Burr. 696, and ante. 172 MEN-OF-WAR, ENEMIES, PIRATES, ETC. a special case in a cause of Bichoff v. Agur. {h) But it not bein) 2 Sir. 1 174. {c) Thi' same account of the case of Knight v. Cambridge is given by the counsel on both sides in the MS. argument of Stamma v. Brown, 8 East, note (a") (lA 136 {il) Cowp. 153. ' \ J'\ J^ ■ BARRATRY OF THE MASTER OR MARINERS. 185 as where a master deviates to burn, sink, destroy, or throw the ship into the enemy's hands ; or whore he has benefit by tlie deviation, as lie liimself had insured tlie jroods ; and it was a material part of the case whether the master had any benefit by this alteration of the voyage, for that might have been evi- dence of fraud in him,' &c. Of course, he did not consider the benefit of the master as a necessary ingredient in tlie constitution of barratry in all cases, but only as a pregnant circumstance to prove the existence of such a fraud in point of fact, in a particular case." In Nutt V. Jionrdinr, (a) liOrd MunHfichl defines jjarratry nearly in the same terms, viz : as partaking of something criminal, and as committed against the owners by the master or mariners. And Jjord Ilardwickc, in Leiven v. Suasso, (6) liad before defined it to be "an act of wrong, done by the master against the ship or goods." In Robertfion v. Ewer, (c) Buller, J., upon the trial, was of opinion (and it does not appear upon the argument to have been denied by the Court) that sailing out of port without leave, in breach of an embargo, in consequence of which the *owners afterwards sustained a loss in respect of sea- ^ *o'J7 "i men's wages and provisions, by the detention of the ship, was L J barratry. The only question made by the Court was, whether a loss of this kind was recoverable on a policy upon 'the body of the ship.' And although it was urged in argument for the defendant that what was done by the master had been intended for the benefit of the owners, the Court did not advert to it as a point at all material to the decision of the question. "After these various decisions of Courts of Law, we are certainly warranted in pronouncing, that a fraudulent breach of duty by the master in respect to his owners; or, in other words, a breach of duty, in respect to his owners, with a criminal intent, or ex male/icio, is barratry. And with respect to the owner of the ship or goods, whose interest is to be protected by the policy, it can make no difference in the reason of the thing, Avhether the prejudice he suffers be owing to an act of the master, induced by motives of advantage to himself, malice to the owner, or a disregard to those laws which it was the master's duty to obey, and Avhich (or it would not be barratry) his owners relied upon his observing. It has lieen strongly contended, on the part of the defendant, that if the conduct of the master, although criminal in respect of the state, were, in his opinion, likely to advance his owner's interest, and intended by him to do so, it will not be barratry ; but to this we cannot assent. For it is not for him to judge in cases not entrusted to his discretion, or to suppose that he is not breaking the trust reposed in him but acting meritoriously when he endeavours to advance the interest of his owners by means which the law for- bids, and whicli his owners also must be taken to have forbidden, and not only from what ought to be, and must therefore be presumed to have been, their own sense of public duty, but also from a consideration of the risk and loss likely to follow from the use of such means. In laying down this doctrine, we feel ourselves supported by the several eminent authorities already referred to. And in giving this opinion, *we do not feel any apprehension that p sooa "i simple deviations will be turned into barratry to the prejudice of *- -^ the underwriters ; for, unless they be accompanied with fraud or crime, no case of deviation will fall within the true definition of barratry, as above laid down. Another argument was used, which hardly appears to have been used seriously ; namely, that the captain, in this case, united in himself the two characters of supercargo and captain, and that, as captain, he must be considered as obeying (a) 1 T. R. 323, post. (b) Postcth. 147, tit. Assurance, (c) 1 T. R. 127. 186 BARRATRY OF THE MASTER OR MARINERS. the directions of his owners, given to himself, as captain, by himself, in his character of supercargo. It is sufficient to state such an argument, to show it can have no weight. The directions of the owners as to the conduct of the vovage, and as to the places where the trade was to be carried on, are to be looked for in their instructions : which, coupled with their duty to their country, must, during every moment of the voyage, be considered as either expressly or impliedly directing the captain to conduct the ship to those places only where trade might be carried on without violating the laws of their country." The plaintiffs, therefore, retained their verdict. But where, in the case of Boiiomlcy v. BovilL (d) the master is called upon to exercise his own discretion, and only errs in judgment, and not "ea? malefi- cio," it does not amount to barratry. Thus in a case in which the captain of a ship mistook the meaning of his instructions, or erred as to the best mode of carrying them into effect, it was insisted at the trial, on behalf of the assured, that' the plaintiff was entitled to recover for a loss by barratry. Lord Chief Justice Abbott told the jury "that barratry meant an act of the master in fraud of his duty to his owner. A mere mistake of the captain as to the meaning of his instructions, or a misapprehension of the best mode of carrying them into effect, would not amount to barratry; and he directed the jury to find for the plaintiff, if they were of opinion that the captain acted in fraud of his duty to r *QiQ 1 '^^^ owner, when he went to New Zealand ^instead of the East L -^ Indies; but if they thought, on the other hand, that he merely mistook the meaning of the instructions, or the best mode of acting for the purpose of carrying them into effect, then to find for the defendant." Upon this point the jury found for the defendant. And where in Todd v. Ritchie, [a) which was an action on a policy, the loss was averred to be by barratry of the master; and it appeared, that the ship having sprung a leak, he took her into port, and, before any survey made, he broke up her ceiling and end-bows with ci'owbars, thereby injuring her, and weakening her; Lord Ellenborough, addressing the counsel for the plaintiff, said, "to constitute barratry, which is a crime, the captain must have been proved to have acted against his better judgment, as the case stands there is a whole ocean between you and barratry." In the case of Goldsmith v. JJliitmore, (b) it was held that a sentence con- demning as enemy's property, a cargo which the master had barratrously carried into the enemy's blockaded port, though he may prove it to be then enemy's property, does not disprove the allegation that the cargo was lost by the captain's barratrous act. In the case of Vallejo v. Tflieeler, (c) it was setded, we recollect, that the freighter of the ship is to be considered as the owner of it for the particular voyage ; and it seems also clearly settled by the same case, that if an act be committed with the consent of the owners of the ship, that cannot be barratry. It was, however, in a later case, insisted upon at the Bar, that an act of the captain, without tlie consent of the owners of the goods, who were the insured, though with the consent of the owners of the ship, was barratry, so as to charge the underwriters. But tliis argument was overruled by the Court; and could not have been admitted without overturning all former decisions upon the subject. Barratry implies something contrary to the duty of master and mari- r *S40 1 "^'"''' ^'^ ^^'^ relation in which they stand to the owners of the *ship ; L J and although tliey make themselves liable to the owners of the (fl) 5 B. & C. 210. (n) 1 Stark. 240. (Ij) 3 Taunt. 508. (c) Ante, p. 323. BARRATRY OF THE MASTER OR MARINERS. 187 goods for misconduct, yet not for barratry, which can be committed against the owners of the ship, and them only. The case in which this point was settled, was IVuff and others^ Assignees^ 8)'C. V. Boui'dieu, (perty divested, and the subject-matter lost to the owner, it had remained on board the ship, and been restored at last to the owner, I should have thoiifrht that there was much in the argnment, that in order to make it a total loss there should have been notice of abandonment, and that such notice should have been given sooner; but here the property itself was entirely lost to the owner, and the ^necessity of any abandonment was altogether done away." In p *'iff' "i that case the sentence under which the sale was made had been L -^ reversed, and the proceeds directed to be paid to the owner, so that there was a substitution of money for a portion at least of the matter insured. Both these cases are direct aulhoriticy to show that no abandonment is neces- sary "where there is a total loss of the subject-matter insured." His Lord- ship referred to cases of equal authority with the preceding, (which will deserve a more particular notice by us in this section) and to an important ease of Cambridge v. Anderion, [b] and said "this last is in all points similar to the present, and is an express decision, that when the subject-matter insured has, by a peril of the sea, lost its form and specie, where a ship, for example, has become a wreck, or a mere congeries of planks, and has been bona fide sold in that state for a sum of money — the assured may recover a total loss without an abandonment. In fact, when such a sale takes place, and in the opinion of the jury, is justified by necessity, and a due regard to the interest of all par- ties, it is made for the benefit of the party who is to sustain the loss; and if there be an insurance, the net amount of the sale becomes money, had and received to the use of the underwriter, upon payment by him of the total loss. It may be proper to mention, however, that the assured may preclude himself from recovering a total loss, if, by any view to his own interest he voluntarily does or permits to be done, any act whereby the interests of the underwriters may be prejudiced in the recovery of that money. Suppose, for example, that the money received upon the sale should be greater than, or equal to the sum insured, if the assured allows it to remain in the hands of his agent, or of the party making the sale, and treats it as his own, he must take upon himself the consequence of any subsequent loss that may arise of that money, and cannot throw upon the underwriter a peril of that nature. This is the true principle of the case of Mitchell *v. Ed'ie^ (c) whicli was cited as an author- p ^^^^ -, ity for the decision of the Court of Common Pleas. There the L J insurance was upon sugar "from Jamaica to London.'''' The ship had been captured bv a privateer, deprived of some of her crew and a portion of lier stores — then released, and carried by the remainder of the crew into Charles- town, where she arrived on the 18th February, 1782. Tiie report does not state when the intelligence of this reached London, but it is ])robable that it must have reached the assured before the month of June following. One of the owners of the ship was resident at Charlestown; he took possession of lier; and instead of despatching her on the original voyage, he sold the cargo of sugar in the month of June., and sent the ship on another voyage. He had been connected with the assured in former adventiires. He retained the n)oney in his hands, and came to England in June, 1783. The assured pressed him for payment of the money, but took no steps to recover it; he became insolvent (ffl) 13 East, 304. {h) 2 B. & C. 697. (c) 1 T. R. 008. 202 TOTAL LOSSES AND ABANDONMENT. the following year: no claim was made upon the underwriter till after this event ; and then, after the expiration of three years, from the alleged loss of the goods, notice of abandonment was given and the action brought : upon which the defendant paid into Court sufficient to cover a general average, and pleaded the general issue. The Court gave judgment against the plaintiff, stating that he had abandoned too late. And it cannot be disputed, that, if ever he liad any colour for claiming a total loss, it must have been upon an abandon- ment before he heard of the sale, as he afterwards gave credit to his agent for the money, and elected to treat it as his own, till the event of an insolvency Avhich prevented tlie underwriter from recovering it. But, in fact, there never was a total loss by peril of the sea. The sugars were safe at Charlestown, and the sale by the owner of the ship was not a loss by a peril insured against. The secret of the conduct of tlic assured may be discovered by a reference to r -QR« -, the dates and the circumstance of the time. *During the war with ■- -• America, and especially towards the close of it, the intercourse between that country and tlie JVest India islands was much interrupted ; and the price of colonial produce was higher in Charlestoivn than in London. It was therefore probably his interest to give up his claim upon the underwriters, and adopt the sale. If, therefore, the sale of the goods could have been treated as a loss, the conduct of the assured had either deprived him of the right to claim it, or made him liable if lie had die right to account to the underwriters for the amount of the sale. If, indeed, the Court must have treated the sale at Charlestown as a loss, for which the underwriter was at any time responsi- ble, the case may be an authority for establishing the principle, that, even when a total loss has occurred by a sale of the goods, the assured may, by his own conduct, in electing to take the proceeds, instead of making his claim upon the underwriters — if he thereby alters the position of the facts, so as to affect the interest of the underwriter, forfeit his claim to recover a total loss. But the case is in no view an authority for the judgment of the Court of Common Pleas, which for these reasons, we think, ought to be reversed." — Judgment reversed, I shall now proceed to consider the earlier cases upon this subject, and endeavour to show how the law of abandonment as setded at tliis day, accord- ing to the important judgment we have just referred to, may be seen to have regularly proceeded from diose first principles which were laid down chiefly by Lord Manfijield. I shall commence by going back to the important case of Goss V. Withers, [ci) which we dwelt on for so long a time in the section on capture, [b) ■ It will not be necessary to go over the ground we traversed before, respect- ing the effect of capture upon the contract of insurance. It is as well briefly to state what the case was. The case stated that the ship departed from her r *369 1 P''°P'^'' P'^'"^' *^"^^ '^^^^ taken by the French, on the 23rd of Decem- '- -' her, 1756: and that the master, mates, and all the sailors, (except an apprentice, and landsman) were taken out and carried to France. That the ship remained in the hands of the enemy eight days, and was then retaken by an English privateer, and brought in, on the 18th of January, to Milford Haven; and that immediate notice was given by the assured to tlie assurers, witli an offer to abandon the ship to their care. Several questions arising upon the first cause, it was agreed that the jury should bring in their verdict in both causes for the plaintiffs as for a total loss, suliject, however, to the opinion of the (yourt on two questions, the second of which is now to be the subject of our consideration (the first having been already disposed of). (a) 2 Burr. 683. (fi) See ante, sec. xii, p. 287. TOTAL LOSSES AND ABANDONMENT. 203 The second question is this: — "Wliother, under the several circumstances of this case, tlie assured liad or had not a rit^lit to abandon the ship to the assurers, after she was carried into Milford Haven?'''' It was argued by counsel for the plaintifi's, ''that the assured had a right to abandon the ship to the assurors, after iier coming into Milford Haven. For the property insured was irrecoverably destroyed. And here was immediate notice of abandoning to the assurers given." They quoted MoUoy, i^a) and Mahjne''s ^^ Lex Mercatoria..^'' {b) for the rules of abandoning. Malipie puts it, "where there is no possibility of putting to sea with the thing insured." Here the ship was freighted with a "perishable" commodity, (fish from Netv- foicndland) bound to hot countries ; was taken: and afterwards retaken and brought into Milford Haven wiUiout sufficient hands of lier own, and requiring so much refitment as was impossible to be finished before the cargo would and must be spoiled; and part of the cargo was thrown overboard, too, in the storm, before she was taken. To what purpose, then, should the assured be at the expense of refitting the ship, to carry a "spoiled and useless" cargo .^ *Little is to be found in the books about abandoning. The rule p *q7n -i laid down was, "That the assured has a right to abandon to the L -' assurers where there are no hopes of saving the perishable cargo, (a) provided there is no fraud." This ship was in port; tlie hands all in France., in prison. Besides, here was a total loss ; for the costs of salvage exceeded the value of the thing saved. Therefore they had a right to abandon. The counsel for the defendant argued that the case stated did not entitle the assured to abandon. This right to abandon supposes a total loss ; but the loss was only average. As to Molloy and Malyncs,, they said almost anything might be proved from their writings. It has been urGfcd, "that the assured can in no case abandon." On the con- trary, all provincial laws allow the power of abandoning in some cases, [h) Lord Mansfield delivered the judgment of the Court on the 23rd of Novem- ber, 1758. "The single question, therefore, upon which this case turns is, 'Whether the assured had under the circumstances, upon the 18th of January, 1757, an election to abandon?' "The loss and disability was in its nature total, at the time it happened. During eight days the plaintiffs were certainly entided to be paid by the as- surers as for a total loss : and, in case of a recapture, the assurer would have stood in his place. The subsequent recapture is, at best, a saving only of a small part : half of the value must be paid for salvage. The disability to pur- sue the voyage still continued. The master and mariners were prisoners. The charter-party was dissolved. The freight (except in proportion to the goods saved was) lost. The ship was necessarily brought into an English port. What could be saved might not be worth the expense attending it, (which is proved by the plaintiffs' offer *to abandon.) The subsequent tide r- ^„_,. -, to restitution arising from the recapture, at a great expense, of the L J ship, disabled to pursue her voyage, cannot take away a right vested in the assured at the time of the capture. But, because he cannot recover more than he has suffered, he must abandon what may be saved. The better opinion of the book says, — 'Sufficitsemel extitisse conditionem, ad beneficium assecurati, (fl) Lib. 2, c. 7, p. 278. (i) Pp. Ill, 115. (a) See ante, p. 364, and Roux v. Salvador, 4 Scott, p. 25. (A) Lord Mansfield here observed, "It goes so far back as the Rhodian law, and the laws of Oleron." 2 Burr. 692. 204 TOTAL LOSSES AND ABANDONMENT. de amissione navis ; etiam quod postea sequeretur recuperalio : nam per talem recuperationem non potuit praejudicari assecurato.' I cannot iind a single book, ancient or modern, Avhich does not say, ' that, in case of the ship being taken, the assured may demand as for a total loss, and abandon.' And wliat ])roves the proposition most strongly is, that, by the general law, he may abandon in the case merely of an arrest or an embargo, by a prince not an enemy. Every argument holds stronger in the case of the other policy Avith regard to the goods. The cargo was, in its nature, perishal)le ; (d) destined from Newfoundland to Spain or Portugal; and the voyage as absolutely defeated as if the ship had been wrecked, and a third or a fourth of the goods saved. No capture by the enemv, though condemned, can be so total a loss as to leave no possibility of recovery. If the owner should take at any time, he will be entitled ; and by the act of Parliament, if an English ship retakes at any time (before condem- nation or after,) the owner is entided to restitution, upon stated salvage. This chance does not suspend the demand for a total loss upon the assurer; but justice is done by putting him in the place of the assured, in case of a recapture. '•In questions upon policies, the nature of the contract as an indemnity, and nothing else, is always liberally considered. There might be circumstances under which capture would be ])ut a small temporary hindrance to the voyage — perhaps none at all : as if a ship was taken, and in a day or two escaped entire, and pursued her voyage. r ^Q79 1 *'• There are circumstances, under which it would be deemed L * J an average loss : if a ship taken, is immediately ransomed by the master, and pursues her voyage, there the money paid is an average loss. And in all cases the assured may elect 'not to abandon.' "In the second part of '■^ Usage and Customs of the Sea,^ a treatise is inserted called ^ Guidon,^ where, after mentioning the right of abandonment upon a capture, he adds, 'or any other such disturbance as defeats the voyage, or makes it not worth while, or worth the freight to pursue it. ' "I know that iu late times, the privilege of abandoning has been restrained for fear of letting in frauds : and the merchant cannot elect to turn, what at the time when it happened, was in its nature («) but an average, into a total loss by abandoning. But there was no danger of fraud in this case. The loss was total at die time that it happened. It continued total, as to the destruction of the voyage. A recovery of any thing could be had, only upon paying more than half the value (including the costs.) What could be saved of the goods, miglit not have been worth the freight for so much of the voyage as they had gone when they were taken. The cargo, from its nature, must have been sold where it was brought in. {b) The loss, as to the ship, could not be better estimated, nor the half of the salvage be fixed by a better measure than a sale. In such a case, there is no colour to say that the insured might not disentangle himself from unprofitable trouble, and further expense; and leave the assurer to save what he could. It might as reasonably be argued, that if a ship sunk, was weighed up again at great expense, the crew having perished, the assured could not abandon nor the assurer be liable, because the ship was saved. "We are, therefore, of opinion, that the loss was total, by the capture; and r *'i7'> "1 ^''<' right which tlie owner had, after the ^voyage was defeated to L -' obtain restitution of die ship and cargo, paying great salvage to the recaptor, 'might he abandoned to the assurers, after she was brought into Mil- ford Haven.'' " The postea was given to the plaintifls in both cases. (d) See ante, p. 360, and Roux v. Salvador, 4 Scott, p. 25. (rt) Sec the case of Mitchell v. Edic, 1 T. K. COS, ante, p. 367. (i) Sec the case of Koux v. Salvador, 4 Scott, p. 26. TOTAL LOSSES AND AnANDONMENT. 205 There is a case of /*rin^/c v. Hartley, («) ia Chaiicory, whicli is applicable to the preceding case. Tlie derouclant had insured the ship Success from Lon- don to Bernnulas, and so to Carolina; the ship was taken by a Spanish ]ni- vateer, and afterwards retaken by an English privateer, and carried into Boston in New England, where, no person appearing to give security, or to answer the moiety, "the recaptors were entitled to for salvage, she was condemned and sold in the Court of Admiralty there : the recaptors had their moiety, and the overplus money remained in the hands of the oflicers of that ('ourt. An action upon the policy was brought at law by the defendant here, who o!)tained a ver- dict against the now plaint ilT. The plaintiff brought a bill, suggesting the capture to be fraudulent, and done designedly by the captain ; and now moved for an injunction to stay the pro- ceedings at law. It was contended for the plaintifT, that though the capture miglit not be fraudu- lent, yet the defendant ought not to recover more on the policy than a moiety of the loss, as the act of the 13 Geo. 2, c. 4, 3. 18, gives the thing saved to the owner, and he is entitled to receive it from the officers of the Admiralty : and that the plaintiff ought to be obliged to pay no more than the loss actually sustained, which cannot be ascertained till after the defendant shall have received the part that might have come to him upon the salvage. The defendant in his answer had sworn, that he had offered, and was now willing to relinquish his interest to tlie plaintiifs in the benefit of the salvage, and would give them a letter of attorney for that purpose to receive it. Lord Chancellor Hardwickc. — "There is no ground for *an p ^yjA "i injunction in this case; here there was an agreement to go to trial L -j in one of these actions, which had been brought, and to be bound by the event of that : at the time of the trial, they knew that the ship was retaken, and the manner of the capture. The quantum of the damage and loss sustained is the only thing now to be disputed ; for it is impossible to carry on trade without insuring, especially in time of war. Therefore regard must be had to the insured, as well as to the insurer; and where there is no admission in the answer of any kind of fraud, though various pretences of that sort may be set up by the bill, they are not to be regarded. The question then arises on the statute of 13 Geo. 2, with regard to the salvage. It has been said, there ought to be only half the loss recovered in the policy ; and as to that, the act has made great alteration in the law of nations with respect to recaptures. The carrying a ship infra prsesidia hostium, or si pernoctaverit with the enemy, makes it the prize of the person retaking it, as if it had been originally the ship of the enemy : but by the act, the recaption is the revesting of the property of the owner. If there is a salvage, that must be deducted out of the money recovered by the policy ; but if none has come to the hands of the plaintiff in the action, the jury cannot take notice of it. The ship was condemned and sold, because the money was not paid, or secured to be paid by the owners. It is uncertain whether the defendant will receive any thing or not; and if any thing be recovered, he must have an allowance for his expenses in recovering. Therefore I take it, when he is willing to relinquish his interest in the salvage, he ought to recover the whole money insured. It would be mischevious if it were otherwise, for then upon a recapture a man would be in a worse situation than if the ship were totally lost." Injunction was denied. 'i'he case of 3Iilles v. Fletcher, {b) is a most important case, which is par- ticularly illustrative of the principles which we are now treating. (a) In Chan. 1744. 3 Atk. 195. (6) Doug. 2.31. 206 TOTAL LOSSES AND ABANDONMENT. [- S07- -| *The case was this : — It was an action on a policy of insurance, L ^ ' ^ J on the ship, The Hope, and her freight, from Moniserrat to Lon- don. The plaintiff went for a total loss : the defendant insisted, that he was only entitled to recover for an average loss. The jury found a verdict for a total loss ; and upon a motion for a new trial, the facts of the case appeared to be as follows: — The ship, when proceeding on her voyage, was captured on the 23rd of May. by two ..American privateers, who took the captain and all the crew, and part of the cargo, which consisted of sugars, out of her. The rigging was also taken away. She was afterwards retaken, and carried into New Fork, where the captain arrived on the 23rd of June, and, taking posses- sion of her, found that part of what had been left of the cargo was washed overboard, that fifty- seven hogsheads of what remained were damaged, and that the ship was leaky, and in such a state, that she could not be repaired without unloading her entirely. The owners had no storehouses in New Fork, in which the sugars could have been put, while the ship was repairing, nor any agent there to advise or direct the captain. No sailors were to be had. The only method he had of paying the salvage, which amounted to the value of forty hogsheads of sugar, was by sale of part of the cargo, or the ship. The cap- tain did not know of the insurance. If he had repaired the ship, his expenses would have exceeded tlie freight more than 100/. There was an embargo on all vessels at Neiv Fork till the 27th of December; and by the destination of his ship, she was to have arrived at London in July. Under these circum- stances, he consulted with his friends at Neio Fork, and resolved, upon their opinion and liis own, to sell the ship and cargo, as the most prudent step for the interest of his employers. The cargo was accordingly sold and paid for. The ship was also contracted for, but the person who had agreed to buy her ran away, and the captain left her in a creek near Neic Fork, and returned to England, where he arrived in the February following, and gave the plaintiff notice of what had been done, which was the first information he received of r *376 1 *'^' ^^^^ ^^^^ plaintiff immediately claimed as for a total loss from L J the underwriters, and offered to abandon. Lord Mansfield told the jury, that if they were satisfied the captain liad done what was best for the benefit of all concerned, they must find as for a total loss, which they accordingly did. Upon the motion for a new trial, the unanimous opinion of the Court was delivered by Lord Mansfield. — "The great object in every branch of the law, but espe- cially in mercantile law, is certainty, and that the grounds of decision should be precisely known. I took great pains in dehvering the opinion of the Court in the case of Goss v. Withers, and Hamilton v. 3Iendez. I read both those cases over last night, and I think that from them, the whole law between insurers and insured, as to the consequences of capture and recapture, may be collected. It was not contended that a capture necessaidy amounts to a total loss between insurer and insured ; nor, on the other hand, that on a capture and recapture, there may not be a total loss, though there remain some material tangible part of the ship and cargo. Neither was it contended that the captain has an arbitrary power, by his act, to make the loss, either average or total, as he pleases. A great deal has been said about what the Admiralty could, or would have done, in such a case, in order to pay the salvage. As to that, if no owner appeared, they would condemn the whole; but if they saw, from the ship's papers, that there was one, they would not. If there were different claimants of the ship and cargo, they would leave it to them to say what part should be sold : and if they differed in opinion, would order the sale of such part as would be attended with the smallest loss. But all that is foreign to the present question, which is singly this, whether the consequences of the capture TOTAL LOSSES AND ABANDONMENT. 207 were such as, notwilhstanding the recapture, occasioned a total obstruction of the voyaj^e, or only an average one, as in the case of Hamilton v. Mendez? In that case, and in Gosfi v. nifhers, ^reat stress was laid on the situation of the ship and cargo, at llie time when the insured had notice, at the time of tlie offer to abandon, *and at the time when the action was brought. ^ ^077 -1 No cases say tliat tlie bare existence of tlie hull of the ship pre- L J vents the loss being total. The rule is laid down, "that if the voyage be lost, or not worth pursuing, if the salvage be high, if furtlier expense be necessary, if the insurer will not at all events undertake to pay that expense, &c., the insured may abandon, notwithstanding a recapture," Here, at the time of the capture, there were no hopes of a recovery .; no friend's sliip in siglit; no means of resistance ; all the crew were taken out, and part of the cargo ; and the rigging also taken away. Afterwards the ship was retaken, and carried into New York. When she was brought there, it still continued a total loss. Nei- ther the insurers, nor the insured, had any agent in the place. The Court of Admiralty must have proceeded secundum ;equm et honum, and might have sold her for the benefit of those concerned. When the insured first had notice, and offered to abandon, (which was when the captain came to England,) and when the action was brouglit, it was still a total loss. The voyage was aban- doned, the cargo sold, and the ship left to be sold. The only answer the defendant makes, or can make to this is, that the loss was total indeed ; but that the captain made it so, by his improper conduct; for that on his taking possession of the ship, the loss became average, and that he ought to have pursued the voyage. But is this defence true in fact? The captain, when he came to New York, had no express order: but he had an implied authority, from both sides, to do what was fit and rigltt to be done, as none of them had agents in the place : and whatever it was right for him to have done, if it had been his own ship and cargo, the underwriter must answer for the consequences of, because this is within his contract of indemnity. («) Suppose there had been no insurance, what *ought the captain to have done? 1st, ^ i^ofo -1 As to the cargo, according to the course of the voyage, the ship L J should have arrived at London in Juli/. On the capture, part had been taken out, some was washed overboard, fifty-seven hogsheads were damaged, and the whole, from the leaking of the vessel, was in a perishable state. There were no storehouses ; nor could the ship proceed in the state she was in. The crew were gone, and an embargo was laid on till December. What, shall a cargo, which was intended to arrive at London in July, be kept in a perish- able state at Ne7V York, in a leaky vessel, till December? 2ndly, As to the ship, it was certainly better to sell her than to bring her to London. There was no crew belonging to her, and she had no cargo. Even if all the cargo had been left, the expenses of repairs would have exceeded the freight. If she liad been brought home, the expense of bringing her might have been more than what she would have sold for in I^ondon. It has been said, that the damage would not have fallen on the underwriters ; but the argument drawn from thence is a fallacy ; for that circumstance goes to determine it to be the interest of the insured to abandon the voyage. The point is, what did the owner suffer by the capture? and it appears that he suffered so mucli, that it was not worth while to pursue the voyage. The whole voyage was lost. As (a) In the case of Reid v. Darby, 10 East, 143, the Court seemed to think that the captain had no authoritj' to part with the ship ; but should hiwe repaired her and prosecuted his voyage. And in Johnson v. Shippen, 2 Lord Raym. 984, Lord Holt hehl expressly that the master had no authority to sell any part of the ship, but that he might hypothe- cate. Sec, however, the judgment of Lord Stowell, in the case of the Gratitudiae, 3 Rob. A. R. 240. Vol. VII.—P 308 TOTAL LOSSES AND ABANDONMENT. the captain did not know of the insurance, he had no temptation to give the turn of the scale to one side or the other. I left it to the jury to determine, whether what the captain had done was for the benefit of the concerned. If they had found "that it was" in words, where would have been the question of law ?" The Court, therefore, discharged the rule for a new trial. The more recent decisions seem to support the authority of the preceding case, and to establish the doctrine that the master may, in a case of absolute necessity, make a sale of the ship, if he act bona fide, and for the real benefit of the owners. But there must be the clearest proof of the necessity of the case: *q70 "1 '^ '""^^ ""^^ °"^^' '^^ shown that the vessel *wanted repairs, but L ^'^ J that it was impossible to procure the money for that purpose, [a] Thus in an action on a policy of insurance on the ship Lady Banks, which had been sold by the master at the Isle of France, the jury found, first, that the master appeared to have acted according to the best of his judgment; secondly, that the sale was conducted fairly ; and thirdly, that there was no necessity for the sale of the ship ; the verdict was entered for the assured for an average loss only, and not for a total loss, with a benefit of salvage, Avhich had been claimed, (b) And where a ship insured to Neio York became so damaged and leaky in the course of the voyage, that the crew, overcome with fatigue, were obliged to desert her; and a fresh crew, from another vessel, took charge of her, and succeeded in bringing her to Neiv Fork, where she was sold for payment of the salviige, without any endeavour on the part of the owner to prevent the sale : it was held, that the desertion of the crew did not make it a total loss ; and that as it did not appear that the sale was necessary, or that the owners had done any thing to prevent it, it did not give them a right to abandon, (c) We come now to the case of Hamilton v. Mendez, (^d) which is one of the r *'iRn 1 '^*'^* ii^ipoitant cases decided by Lord ^Mansfield. It was a spe- L -^ cial case reserved at Gruildhull, at the Sittings there before Lord Mansfield, after Michaelmas Term, 1760, in an action brought against the defendant, as one of the insurers, upon a policy of insurance from Virginia or Maryland to London, of a ship called the Selby, and of goods and mer- chandise therein, until she shall have moored at anchor twenty-four hours in good safety. The case stated for the opinion of the Court, was as follows : That the ship Selby, mentioned in the policy, being valued at 1,200/. ; and the plaintiff having interest therein, caused the policy in question to be made ; and the same was accordingly made, in the name of John Mackintosh, on behalf and for the use and benefit of the plaintiff, and was subscribed by the defendant, as stated, for 100/. That the ship was in good safety at Virginia, where she took on board one hundred and ninety-two hogsheads of tobacco, to be deliv- ered at London. That on the 28th day of March, she departed, and set sail from Virginia to London; and on the 6th day of May following, as she was (fl) The Fanny and Elmira, Ed. A. R. 117. Robertson v. Clarke, 1 Bing. 445, and .see Royal Exch. Assur. Comp. v. Idle, which was a writ of error from the Court of Com- mon Picas, where it was decided that a necessity for the sale must appear, and a venire de nutm was awarded to ascertain whether it existed or not. 3 Drod. & Bing. l.'jl. {!)) Maehurn V. J,eckie, tried before C. J. Dallas, March 5th, 1822. Abb. on Shipp. p. 5, (6th edit.) Sec also Freeman v. East India Comp. 5 B. & A. 617. Wilson v. .Millar, 2 8tark. 1. Robertson v. Carruthers, 2 Stark. 571, and Hunter v. Parker, 7 M. & W. 342, where the Court of Exchequer seemed to concur with the recent authorities. (c) Thorndey v. Hebson, 2 B. & A. 513, and sec Falkner v. Ritchie, 2 M. & !S. 290. But it is otherwise when the cargo is taken out of the possession of the assured by the bar- ratrous act of the master and mariners. Dixon v. Rcid, 5 B. & C. 597. (r/) 2 Burr. 1198; 1 W. Black. 276. TOTAL LOSSES AND ABANDONMENT. 209 sailin*^ and proceeding in her said voyage, was taken by a French privateer called the Aurora of Jiayonnc. '['liat at the time of the capture, tlie Selby had nine men on board; and the captain of the said privateer took out six, besides the captain, leaving only the mate and one man on board. That the French put a prize-master and several men on board the ship Selby, to carry her to France. That as the French were carrying her towards France, on the 23rd day of the said 3Iay, she was retaken off Bayonne by an English man-of-war; and accordinsly sent into Plymouth, where she arrived the 6th day of June following. That the plaintiff, living at Hull, as soon as he was informed what had befallen his ship. The Selby, wrote a letter on tlie 23rd of June, to his agent, .Tohn Mackintosh, living in I^ondon, to acquaint ihe defend- ant, "'that the plaintiff did from thence abandon to him his interest in the said ship, as to the said 100/. by the defendant insured." That the said John Mackintosh, on the 26th of .Tune, acquainted the defendant with the offer to abandon the ship; to which the ^defendant answered, "that he ^ ^„^, -, did not think himself bound to take to the ship; but was ready to L -' pay the salvage, and all other losses and charges that the plaintiff sustained by the capture." That upon the 19th day o^ August, the ship Selby was brought into the port of London, by the order of the owners of the cargo, and the re- captors. That the ship Selby sustained no damage from the capture. That the whole cargo of the said ship was delivered to the freighters, at the port of London, who paid the freight to Benjamin Vaughan, without prejudice. The question, therefore, submitted to the opinion of the Court is, whether the plain- tiff, on the said 26th day of June, had a right to abandon, and has a right to recover, as for a total loss. After two arguments at the Bar upon this question, and after the Court had taken time to deliberate upon it, their unanimous resolution was delivered by the Chief Justice. Lord Mansfield. — "The plaintiff has averred in his declaration, as the basis of his demand for a total loss, 'tliat by the capture, the ship became wholly lost to him.' The general question is, whether the plaintiff, who, at the time of his action brought, at the time of his offer to abandon, and at the time of his being first apprized of any accident having happened, had only, in truth, sustained an average loss, ought to recover for a total one? In support of the affirmative, the counsel for the plaintiff insisted on the four following points : 1st, That by this capture, the property was changed; and therefore, the loss total forever. 2dly, If the property were not changed, yet the capture was a tot'd loss. 3dly, That when the ship was brought into Plymouth, particularly on the 26th day of June, the recovery was not such as, in truth, changed the totality of the loss into an average. 4thly, Supposing it did, yet, the loss having once been total, a right vested in the insured to recover the whole upon abandoning; of which right he could never be divested by any subsequent event. "A.S to the first point. If the change of property were at all material between the insurer and insured, it would not *be applicable to this p *qqo ~[ case ; because by the marine law of England, there is no change ^ J of property, in case of a capture, before condemnation ; and now, by the Act of Parliament, the jus postliminii continues forever, (a) I know many writers argue, between the insurer and insured, from the distinction, whether the pro- perty was or was not changed by the capture, so as to transfer a complete right from the enemy to a recaptor, or neutral vendee, against the former owner. But arbitrary notions concerning the change of property by capture, as between (a) 29 Geo. 2, c. 34, s. 24. 210 TOTAL LOSSES AND ABANDONMENT. the former owner and recaptor, or a vendee, ought never to be the rule of deci- sion, as between the insurer and the insured upon a contract of indemnity, con- trary to the real truth of the fact. And therefore I agree with the counsel for the plaintiff, upon this second point, that by this capture, while it continued, the ship was totally lost, though it be admitted, that the property, in the case of a recapture, never was changed, but returned to the former owner. "The third point depends, as every question of this kind must, upon the particular circumstances. It does not necessarily follow that, because there is a recapture, therefore the loss ceases to be total. If the voyage be so defeated, as not to be worth the further pursuit; if the salvage be high, and the other expenses great; or if the underwriter refuse to bear these expenses, the insured may abandon. But in the present case, the voyage was so far from being lost, that it had only met with a short temporary obstruction ; the ship and cargo were both entirely safe : the expense incurred did not amount to near half the value ; and upon the 26th of June, when the ship was at Plymouth, and the offer was made to abandon, the insurer undertook to pay all charges and ex- penses, to which the plaintiff might be put by the capture. The only argu- ment to shew that the loss had not then ceased to be total, was built upon a )nistaken supposition, that the recaptor had a right to demand a sale, and to put r *^ft^ "1 ^ ^^''P ^^ *any further prosecution of the voyage. But that is not L -• so. The property returned to the plaintiff, pledged to the recap- tors for one-eighth of the value, as salvage for retaking and bringing the ship into an English port. Upon paying this, the owner was entitled to restitution. The recaptor had no right to sell the ship. If they differed about the value, the Court of Admiralty would have ordered a commission of appraisement. In this case, it was the interest of the owner of the ship, the owners of the cargo, and the recaptors, that she should forthwith proceed upon her voyage from Plymouth to London. But had the recaptor opposed it, or affected delay, the Court of Admiralty would have made an order for bringing her immediately to London, her port of delivery, upon reasonable terms. Therefore, it is most clear, that upon the 26th day of June, the ship had sustained no other loss, by reason of the capture, than the short temporary obstruction, and a charge which the defendant had offered to pay and satisfy. This brings the whole to the fourth and last point. "The plaintiff's demand is for an indemnity. This action, then, must be founded upon the nature of his damnification, as it really is, at the time the action is brought. It is repugnant upon a contract of indemnity to recover as for a total loss, when the final event has decided that the damnification, in truth, is an average, or perhaps no loss at all. Whatever undoes the damnification in whole or in part must operate upon the indemnity in the same degree. It is a contradiction in terms to bring an action for indemnity, when, upon die whole event, no damage has been sustained. The reason is so much founded in sense and the nature of the thing, that the common law oi England adopts it, though inclined to strictness. The tenant is obliged to indemnity his lord from waste; but if the tenant do, or suffer waste to be done in houses, yet if he repair before any action brought, tiiere lies no action of waste against "him. («) He cannot however plead 'non fecit vastum,' but the special matter, Tiie special matter r *S84 1 ^'^hows, that the injury being repaired before the action brought, J the plaintiff had no cause of action ; and, whatever takes away the cause, takes away the action. Suppose a surety sued to judgment; and after- wards, before an action is brought, the principal pays the debt and costs, and procures satisfaction to be acknowledged upon record : the surety can have no (a) Co. Lit. 53, a. TOTAL LOSSES AND ABANDONMENT. 211 action for an indemnity, because he is indemnified before any action is brouglit. If the demand or cause of action does not subsist at the time the action is brouj^ht, the havinf^ existed at any former time can be of no avail. But in the present case tlie notion of the vested right in the plaintiff to sue as for a total loss before the recapture, is fictitious only, and not founded in truth. For the insured is not obliged to abandon in any case ; he has an election. No right can vest as for a total loss till he has made that election : he cannot elect before advice is received of the loss ; and if that advice show the peril to be over, and the thing in safety, he cannot elect at all, because he has no right to abandon when the thing is safe. Writers upon maritime law are apt to embarrass gen- eral principles with the positive regulations of their own country : but they all seem to agree that, if the thing be recovered before the money is paid, the insured can only be entitled according to the final event." His Lordship here cited the passage from Boc.cks, (a) and then proceeded thus : — *'In the case of Spencer v. Franco^ though upon a wager policy, the loss was held not to be total, after the return of the ship Prince Frederick in safety ; though she had been seized and long kept by the king of Spain in a time of . actual war. {b) In the case of Pole v. Fitzgerald, (c) though upon a wager policy, the majority of the Judges and the House of Lords held there was no total loss, the ship having been restored before the expiration of the four months, the time for which she was insured. *"The present attempt is the first that ever was made to charge ^ *qoK "i the insurer as for a total loss, upon an interest policy, after the L -' thing was recovered; and it is said the judgment in the case of Goss v. With- ers gave rise to it. It is admitted that that case was no way similar. Before that action was brought, the whole ship and cargo were literally lost : at the time of the offer to abandon, a fourth of the cargo had been thrown overboard ; the voyage was entirely lost ; the remainder of the cargo was fish perishing, and of no value at Milford Haven, where the ship was brought in ; the ship so shattered, as to want great and expensive repairs ; the salvage was one-half, and the insurer did not engage to be at any expense ; it did not appear that it ■was worth while to try to save anything: and the recaptor, though entitled to one-half, as well as the owner of the ship and cargo, left the whole to perish, rather than be at any further trouble or expense. But it is said, though the case was entirely diff'erent, some part of the reasoning warranted the proposi- tion now inferred by the plaintiff from it. The great principle relied upon was, 'that, as between the insurer and insured, the contract being an indem- nity, the truth of the fact ought to be regarded ; and therefore there might be a total loss by a capture, which could not operate as a change of property ; and a recapture should not relate by fiction (like the Roman jus postliminii) as if the capture had never happened, unless the loss was in truth recovered.' This reasoning proved e converso, that if the thing in truth were safe, no artificial reasoning shall be allowed to set up a total loss. The words quoted at the Bar were certainly used, ' that there is no book, ancient or modern, which does not say that in case of the ship being taken, the insured may demand for a total loss, and abandon.' But the proposition was applied to the subject-matter, and is certainly true, provided the capture, or the total loss occasioned thereby, continue to the time of abandoning-, and bringing the action. The case then before the Court did not make it necessary to specify all the restrictions. But I will read to you verbatim, from my notes of the ^Judgment then r- ^.„j.^ -, delivered, what was said, to prevent any inference being drawn L J beyond the case then determined." (a) Roccus, Not. 50, (b) Vide ante, p. 27. (c) See ante, p. 28, and post, in this section. 212 TOTAL LOSSES AND ABANDONMENT. His Lordship, having read a great part of his former argument in that case, (6) went on in this way : — "From this mode of reasoning, it did by no means follow, that, if the ship and cargo had, by the recapture, been brought safe to the port of delivery, without having sustained any damage at all, that the insured might abandon. But, without dwelling longer upon principles or authorities, the consequences of the present question are decisive. It is impossible that any man should desire to abandon in a case circumstanced like the present but for one or two reasons, namely, either because he has overvalued, or because the market has fallen below the original price. The only reasons that can make it the interest of the party to desire, are conclusive against allowing it. It is unjust to turn the fall of the market upon the insurer, who has no concern in it, and could never gain by the rise. And an overvaluation is contrary to the general policy of the marine law ; contrary to the spirit of the act of 19 Geo. 2 ; a temptation to fraud ; and a great abuse : therefore no man should be allowed to avail him- self of having overvalued. If the valuation be true, the plaintiff is indemnified by being paid the charge he was put to by the capture. If he has overvalued, he will be a gainer if he be permitted to abandon ; and he can only desire it because he has overvalued. This was avowed upon the first argument, and that very reason is conclusive against its being allowed. The insurer, by the marine law, ought never to pay less upon a contract of indemnity than the value of the loss : and the insured ought never to gain more. Therefore, if there were occasion to resort to that argument, the consequence of the deter- mination would alone be sufficient upon the present occasion. But upon prin- ciples this action could not be maintained as for a total loss, if the question were to be judged by the strictest rules of common law : much less can it be r *^87 1 ^"PPOJ'ted for a total loss, as the question ought to be decided *by •- J the large principles of the marine law, according to the substantial intent of the contract, and the real truth of the case. If the question is to depend upon the fact, every man can judge of the nature of the loss before the money is paid ; but if it is to depend upon speculative refinem.ents, from the law of nations, or the Roman jus postliminii concerning the change or revest- ing of property, no wonder that merchants are in the dark when doctors have differed upon the subject from the beginning, and are not yet agreed. To obvi- ate too large an inference being drawn from this determination, I desire it may be understood that the point here determined is, that the plaintiff upon a policy can only recover an indemnity according to the nature of his case at the time of the action brought, or (at most) at the time of his ofier to abandon. We give no opinion how it would be, in case the ship or goods were restored in safety, between the offer to abandon and the action brought, or between the commencement of the action and the verdict. And particularly I desire that no inference may be drawn 'that, in case the ship or goods should be restored after the money paid as for a total loss, the insurer could compel the insured to refund the money, and to take the ship or goods 5' that case is totally difllerent from the present, and depends throughout upon difllsrent reasons and principles. Here the event had fixed the loss to be an average only, before the action brought — before the offer to abandon, and before the plaintiff had notice of any accident; consoqueiuly before he could make an election. We are therefore of opinion that he cannot recover for a total, but for an average loss only; the quantity of which has been estimated by the jury at ten pounds per cent." (o) (6) Vide ante, Goss v. Withers, p. 368 of this Treatise. (a) See the case of Da Costa v. Firth, 4 Burr. 1970, where, at the close of the case, it 18 said, "Here is a solemn abandonment and a solemn agreement that the assurers shall be content with salvage in such proportion as the sum insured bears to the whole interest, and TOTAL LOSSES AND ABANDONMENT. 213 *In the above case of Hamilton v. Mendez, Lord Mansfield in p *oqq n delivering the jiulginent expressly reserves for the Court (as a new L J point) the right to decide, without being fettered by that case, upon the ques- tion, if it should arise, "where the ship or goods insured should happen to be restored between the time of the offer to abandon, and the time of the action brought:" for, says his Lordship, "we give no opinion how it would be in case the ship were restored in safety, between the offer to abandon and the action brought." This question, however, constituted a principal feature in a more recent case of Buinbridgc and another v. Neilson, («) which was tried by Lord Chief Justice Ellcnborough^ near fifty years after the decision of Hamilton v. Men- dez. It was an action on a policy of insurance on the ship called the Mary^ valued at 6,000/., at and from Liverpool to any port or ports in Jamaica, during her stay there, and from thence to her port of discharge in Great Bri- tain, (the rest of the policy is not material.) There was another count upon a policy on freight valued at 4,000/. upon the same voyage. At the trial, before Lord Ellenhorough, the following facts were found. The ship sailed from Jamaica with a cargo and freight bound to Liverpool. On the 21st of Sep- tember, she was captured during her homeward voyage by an enemy. On the 25th day of the same month she was recaptured. On the 30th day of Sep- tember, the plaintiffs received intelligence at Liverpool of the capture, but not of the recapture, and on the day following communicated the same to the under- writers, and gave notice of abandonment. On the 2nd day of October, intel- ligence of the capture was confirmed. On the 6th of October, five days after the notice of abandonment, the plaintiffs received the first intelligence of the recapture of the vessel, and that she then lay at L^och Swilley, in Ireland, in safety, in the possession of the recaptors. This intelligence was immediately communicated to the underwriters, with notice that the plaintiffs nevertheless persevered *in their abandonment ; but offered to do their best for p *QeQ ~| the benefit of those who should ultimately be concerned and inter- L J ested in the vessel, without prejudice. Under such offer, and by agreement with the underwriters, without prejudice to either party, the plaintiffs have compromised with the recaptors ; the vessel has been restored, and has arrived at Liverpool, being her port of discharge according to the terms of the policy, where she now is in salety. And the owners have also without prejudice received the freight of the goods on board her, and the proportion of salvage and expenses of such goods. The plaintiffs obtained the possession of the vessel at Loch Swilley under the said agreement, after the notice of abandon- ment, but before the action was brought ; and the vessel did not arrive at Liver- pool till after the commencement of the action. The ship was never taken into an enemy's port, nor did she sustain any damage, whilst in possession of the enemy. The amount of the salvage, damages and charges upon the ship is 15/. 4s. 8(/., and upon the freight, 13/. Us. 5(Z. per cent, on the sum insured. The defendants paid to the plaintiffs before the commencement of this action 57/. 12s. 2(/., being the amount of their proportion of an average loss upon the two policies, which the plaintiffs accepted, without prejudice to their claim of a total loss upon their abandonment. This case was fully argued at the Bar, and then, for the assured to refund more than in that proportion would be contrary to the underwriter's own agreement. And, therefore, the net proportion only, in respect of the plaintiff's sub- scription, after deduction of salvage, ought to be returned to him; and that is paid into Court." The postea was delivered to the defendant. (a) 10 East, 329 ; and see Parsons v. Scott, 2 Taunt. 363. Evereth v. Smith, 2 M. & S. 278. Falkner v. Ritchie, 2 M. & S. 290 ; and M'lver v. Henderson, 4 M. & S. 575. 214 TOTAL LOSSES AND ABANDONMENT. Lord Ellenhorough said, "This case, tho\igh new in specie, is by no means new in principle: and though Lord Mansfield, in Hamilton v. Mendez, said, that he would not decide how the case would be, if the ship and goods were restored in safety between the offer to abandon, and the action brought ; yet there can be no doubt what his decision would have been, if the facts of this case had been brought in judgment before him. The facts of the case are, &c., (here his Lordship stated the facts of the case as above related.) Now the question is, whether that, which in the result turns out to have been only an average loss, and that to a trifling extent, shall, because the notice of aban- r *^Qn 1 donment, which was given *under the supposition at the time that L J it was a total loss, be now recovered against the underwriters as a total loss, after it is ascertained to be only an average loss.^ 'i'o give effect to this claim would be greviously to enlarge the responsibility of underwriters, and to make them answerable not for the actual loss sustained by the assured, whom they have engaged to indemnify against the risks in the policy ; but for a supposed total loss at the time of the notice to abandon, when that total loss, as it was supposed, *liad in fact ceased to exist. But it has been contended by the plaintiffs' counsel, that if the abandonment is once well made, a right of action thereby becomes vested, which cannot be devested by subsequent events. That proposition is not only not true in the whole, but is not true in any of its parts. The true effect of a notice of abandonment is only this, that if the offer to abandon turns out to have been properly made upon the supposed facts, which turn out to be true 5 the assured has put himself in a condition to insist on his abandonment. But it is not enough that it was properly made upon facts supposed to exist at the time, if it turn out that circumstances existed, unknown to the parties, which did not entitle the assured to abandon. The notice would be properly given, upon intelligence received, and really credited by the assured, of the ship's being wrecked, whether that intelligence were true or not, and although the letter conveying the intelligence should turn out to be a forgery : and yet it is clear that no right of action would vest, founded upon such abandonment, thus made upon false intelligence, without any fact to support it. What is the notice of abandonment more than this : that the assured, having had notice of circumstances, which entitle him, if true, to treat the adventure as a total loss, in contemplation of those existing circumstances, cast what is considered as a desperate risk on the uifderwriter.'' But does not all that presume the existence of those facts, on which the right results to him of calling upon the underwriters to indemnify him.^ But if all this turns out to be a misconception ; if, at the time, it had ceased to be a total loss, and no r *SQ1 1 *^^'"^g^ ^^^^ happened; or if the only damnification arises out of L -^ the very act, which has saved the thing insured from total loss, namely, the salvage on the recapture, the whole foundation of the abandonment fails. It was then argued, that if the right of abandonment once vested, and was acted upon in time, it cannot afterwards be devested by subsequent intelli- gence of other circumstances and events : but the case of Macarthy v. Abel is an authority to the contrary, («) for there, though notice of abandonment were well given at the time, yet it was devested by subsequent circumstances, where it appeared tliat the cause of the abandonment had ceased to exist. "Next it is contended, that by the ship's being carried into a port of Ireland out of the course of her voyage, after her recapture tlie right of abandonment revived. I do not, however, understand, whether this is insisted upon as an entire and distinct cause of abandonment, or as connected with the capture and recapture. If it grew out of the recapture, let us see what Lord Mansfield (a) 5 East, 388, and post. TOTAL LOSSES AND ABANDONMENT. 215 says of it in Hamilton v. Mendez. 'The third point depends, as every ques- tion of this kind must, on the particular circumstances. It does not necessarily follow tliat, because there is a recapture, therefore the loss ceases to be total. If the voyage be so defeated, as not to be worth the further pursuit' — here no voyage is lost or defeated, for the voyage is performed. 'If the salvage be high' — here it is not so, but very trifling. 'If the other expenses be great, and the underwriter refuse to bear them' — here the expenses are not great, and the actual loss has been paid by the underwriters into the liands of the assured. If, indeed, after the recapture, the ship had been carried into a port abroad, and the sale had become inevitable, because no person would indemnify the recaptors for their one-eighth salvage, that might have made it a total loss : but that is not the present case : and therefore none of the circumstances put by Lord ManHfiekU which, after a recapture, might still make the loss total, exist in this ca«e. I cannot, however, *but consider, as at present p ^nnn -i advised, that the abandonment must be taken generally, as relating L J only to the actual state of things, at the time of the abandonment made ; and if necessary to the decision of this case, I should wish to have that point fully considered. I am not disposed to enlarge the grounds of abandonment against underwriters — a privilege, which every one knows, has been much abused. In almost every case ol' a valued policy, it is the interest of the assured to abandon : and it therefore becomes the Court to watch every such case ; and in no instance to enlarge that, which in its nature is only an average, into a total loss. In Macarthy v. Abel, it miglit as well have been said, tliat having been once a total loss, it was to continue a total loss : but it was held otherwise, and that case is no otherwise distinguishable, except eventually that turned out to be no loss : and this is only an average loss. But I can see no difference, whether it ceased, by subsequent events, to be a total loss altogether, or whether it was reduced by the events to so minute a loss as in the present case. Then, as in the case of Godsall v. Boldero, we look to the real nature of the contract in a policy of insurance : and there it was considered to be, as it is, a mere contract of indemnity, [a) Therefore, though in that case there was a total loss with respect to the subject-matter of the risk insured, yet circumstances having after- wards intervened, which addeemed the loss of the insured, he was held not to be entitled to recover. So here, as that which was supposed to be a total loss, at the time of the notice of abandonment first given, had ceased to be so, and in the event only a small loss has been incurred, that is the real amount of the damnification under this contract of indemnity; and that has been paid by the underwriters." The three other Judges, Grose, Le Blanc, and Bayley, delivered their opinions, concurring with his Lordship : and judgment was pronounced for the defendant, {b) *The principle of the law laid down in the preceding case, that p *qqq n the effect of an abandonment is only to put the assured into a con- •- -^ dition to avail himself of it provided the offer turns out to be properly made upon the supposed facts, was lately recognized by the Court of King's Bench, in the case of Naylor v. Taylor, (c) It was an action on a policy of insurance on goods by the ship Monarch, "at and from Liverpool to any port or place in the river Plata, with liberty, in the event of a blockade or being ordered off the river Plata, to proceed to (a) 9 East, 72. {b) Smith V. Robertson, 2 Dow. 474, and also Patterson v. Ritclue, 4 M. & S. 393. Brothcrton v. Barber, 5 M. & S. 447. (c) 9 B. & C. 718. 216 TOTAL LOSSES AND ABANDONMENT. any other port, and there wait or discharge." The loss was averred to have been by capture. The ship sailed from Liverpool^ and was taken by a Bra- zilian frigate, in the river Plata, and sent to Rio de Janeiro for adjudication; but was rescued by the master and crew, who brouj^ht the ship and cargo back to Liverpool, where the master landed and warehoused the goods. The assured, after they had heard of the capture, and after the rescue, but before they heard of it, gave notice of abandonment to the underwriters. A verdict was found for the plaintiff, with liberty to the defendant to move to enter a non-suit, if the Court was of opinion that there was not a total loss. Lord Tenterden, C. J. — "It is not necessary to deliver an opinion upon the effect of the rescue, or of the return to Liverpool. The late cases show that a mere loss of the adventure by retardation of the voyage, without loss of the thing insured, either by its being actually taken from the ship or spoiled, does not constitute a total loss, unless by the aid and effect of an abandonment. In the present case the goods have been brought back to JAverpool. It does not appear upon what grounds the master has detained them : if it be on the ground of a claim of the nature of salvage, the plaintiffs may have them on satisfying that claim. There is no proof that the goods are deteriorated. The particular r *^Q4. 1 adventure upon which they were sent has, indeed, been defeated : L J *but this fact will not of itself make the underwriters liable for a total loss. It therefore becomes necessary for the plaintiff to show that the abandonment has the effect of enabling them to recover as for a total loss. If the abandonment is to be viewed with regard to the ultimate state of facts as appearing before the action brought according to the opinion of the Court in Bainbridge v. Neilson, there has not, for the reasons already given, been a total loss. Doubts were expressed as to the propriety of the decision in Bain- bridge V. Neilson, by a very high authority, in the case of Smith v. Robert- son. («) But, notwithstanding these doubts, the rule laid down in Bainbridge V. Neilson was adopted and acted upon by the Court in the two subsequent cases of Patterson v. Ritchie, (/;) and Brothcrton v. Barber, (c) We consider the point to have been well settled, and the rule established by these authorities ; and the rule to enter a nonsuit must therefore be made absolute." (rf) There was a very recent case in the Court of Common Pleas of Benson v. Chapman, (e) It was an action of covenant on a policy of insurance, dated 12th July, 1839, made by the defendant, of " 77ie Neptune Marine Assu- rance Company of London,'' on the ship The Lord Cochrane, "at and from Pernambuco to Liverpool." The insurance was declared on freight valued at 2000/. The cause came on for trial at Guildhall, on the 1st July, 1842, before Mr. J. Erskine, when a verdict was taken, by consent, for the plaintiff, subject to the opinion of the Court upon the following case. "The declara- tion alleged a loss by perils of the sea. The ship, whilst coming out of the harbour of Pernambuco, struck on a reef, and thereby received such injury as rendered it necessary to put back for repair ; the cargo was taken out, and the ship repaired at a cost of 7,132/., including the charges of landing and reshipping the cargo. Tliere being no other means for raising funds to pay for r *39'} 1 ^^^^ repairs, the master *executed a bottomry bond, by which the -^ ship, freight, and cargo for that sum, and her bottomry premium of 20/. per cent. The ship afterwards sailed for Liverpool with her original cargo on board, and arrived there in safety. The plaintiff, as soon as he (a) 2 Dow. 474. (i) 4 M. «Sc S. 393. (c) 5 M. &S. 418. (d) Sec also Caloi,'an v. London Assur. Comp. 5 M. & S. 447. (e) 7 Scott's N. R. 625. TOTAL LOSSES AND ABANDONMENT. 217 received intimation of tlie extent of the damage done to the ship, gave notice of abandonment of ship and freight to the respective underwriters, and repudiated the bond 5 whereupon the ship was taken possession by the parties chiiming under the bond, and sohl under an order of the Admiralty Court. At the sale, the ship produced 1,675/., which, with the freight earned on the homeward voyage, was paid over to the obligees. Tindcil, Chief Justice, now delivered the opinion of the Court. His Lord- ship, after stating the case, proceeded: — "Upon this state of facts, we are of opinion that tliere was a total loss of freight at the time of the damage sustained by the ship ; and that the plaintiff, having abandoned to the underwriters on freight, is entitled to recover for such total loss. That there was a constructive total loss on ship, seems not to have been made a question. It is unnecessary to cite authorities to prove that, where the damage to the ship is so great from the perils insured against as that the owner cannot put her in a state of repair necessary for pursuing the voyage insured, except at an expense greater than the value of the ship, he is not bound to incur that expense, but is at liberty to abandon, and treat the loss as a total loss. And there seems to be as little doubt that the assured has the right of abandoning the freight where there has been a total loss of the ship. The assured has sustained a total loss of the freight, if he abandons to the underwriters on ship, and is justified in so doing; for after such an abandonment he has no longer the means of earning the freight, nor the possibility of ever receiving it, if earned, such freight going to the underwriters on ship. In the present case, when the ship was at Pcmambiico, the cargo taken out, and the damage to the ship very much exceeding her value, and as the owner had no means of completing, except at a ruinous expense, p *oqa ~i if *at that time, he abandons to the underwriters, as the law allows L J him to do, the freight is as much lost to him as if the ship had been captured, and placed altogether out of his control. The defendant's counsel admits that, if the master, instead of repairing the ship at Pernambuco, had sold her there, the loss both of the ship and freight would have been total : but he contends that, as he did not sell, but borrowed money and repaired the ship, which brought the same cargo to England and earned her freight, the not paying the money borrowed was the voluntary act of the shipowner, and which alone pre- vented him from receiving the freight; and that he had no right to make the loss total by his own voluntary act. But, in the first place, the arrival of the ship with the cargo is not of itself sufficient to deprive the plaintiff of his right to recover, if he gave notice of abandonment at the time when there was a total loss. The ship must not only arrive, but must arrive in such circumstances, as Mr. Justice Bayley expresses it, in Holdsworth v. JVise, [ci) 'that the assured may, if they please, have possession, and may reasonably be expected to take it." In that case the ship had been deserted by the crew, acting bond Jidc for the preservation of their lives, and had been taken possession of by the crew of another vessel, who took her into port, repaired her, and brought her into England, but subject to a claim for repairs and salvage equal to or exceeding her value. The owner havinof abandoned before he knew of the safety of the ship, was not bound to take the ship, but entitled to recover for a total loss. In that case, also, the captain had granted a bottomry bond, and the ship was taken possession of on her arrival in England by the persons claiming title under the bottomry bond. The case, therefore, bears a very close resemblance, no less in principle than in all its circumstances, to the present; for here the owner, in England, had abandoned both ship and freight imme- diately on hearing the damage done to the vessel, and had never afterwards (a) 7 B. & C. 794; 1 M. & R. 673. 218 TOTAL LOSSES AND ABANDONMENT. r *QQ'7 1 i'itP''f6red *with either : here, also, the master had repaired, giving L J a bottomry bond for the money borrowed : here, also, the ship is taken possession of by the persons claiming under such bond ; and the charge far exceeds the value of the sliip and freight. We think the case above refer- red to does, in principle, decide that before us. In the events which took place, there never was a moment at which the owner of the ship could have earned or received the freight, after the ship sustained her injury, except at a cost far exceeding the value of ship and freight. After the cargo was unshipped at Per- nambuco, he could not put it on board again, without incurring the expense of repairs beyond the value of the ship and freight : when the ship arrived in England., he could not receive the freight, Avithout paying the amount of the bottomry bond. If the master had actually sold the ship at the time the dam- age was sustained, and the purchaser had brought her back and earned the freight, there is no doubt but that the owner could have recovered for a total loss after abandonment j and we see no substantial diflerence between his situa- tion, under those circumstances, and the return of the ship pledged by a bot- tomry bond beyond her value. There seems no reason for holding that the act of the master in repairing, whilst the owner was ignorant of what was going on, should vary his rights, the case expressly finding 'that he never interfered in any way with freight or ship after the abandonment. ' We, therefore, think that there should be a verdict entered for the plaintiff for 2000/." In the case, also, of Young v. Turing and others^ (a) Lord ^dinger, C. B., now delivered the judgment of the Court: — "This was an action on a policy of insurance, at and from Rotterdam to Java and Sumatra,- ■iii\(\. back again to a port in Holland, upon the ship Eliza, valued at 8,000/. In the course of her voyage, she was stranded on the Goodivin Sands, and plun- dered. She was afterwards removed, and brought first to Ramsgate, and then r *oQQ -| to London. The underwriters *had notice of abandonment. It L J appears by the evidence set forth in the bill of exceptions, that just before the time when the ship was cast away, she was worth 5,833/. sterling; that her value, as she lay, was 700/. ; and that the salvage was 420/. Two English witnesses deposed that the expenses of repairing the ship m England would be 4,G15/. ; that, if she had been entitled to a British register, she would have been worth, when repaired, from 4,500/, to 4,700/.; and that, if she had been a British ship, it would have been prudent for a British owner to repair her. Several Dutch witnesses stated that the expense of repairing her in Holland would have been far greater; and that hei value, when repaired in Holland, would, at the outside, have been 2,915/. The defendant's witnesses do not materially vary this evidence ; but witnesses were called to show that tlie trading companies in Holland will not employ a vessel that has been stranded in the manner which this ship was stranded, however perfectly she might have been repaired ; and that this circumstance affects her value in Hol- land. The Chief Justice, in summing up, told the jury "that, in considering whether this was the case of an average or a total loss, they ought not to take into account the value in the policy. He also told them that in considering the same (juestion, they ought to look at all the circumstances attending the ship, and to judge wliether, under all those circumstances, a prudent owner, if unin- sured, would have declined to repair the ship : and, if so, they might find it a case of total loss. "To this charge of the Chief Justice two objections were taken, and are made the subject of this bill of exceptions. The first is, that he ought to have (a) 2 Scott's N. R. 752. TOTAL LOSSES AND ABANDONMENT. 219 told the jury that, in detcriiiininjr whetlior the loss was total, they ought to take into their consideration the estimated value of the ship in the policy. "I am not aware of any case or principle in the law of insurance which makes the estimated value in the policy a circumstance on whicli tiie question of total or average loss ought to turn. The agreed value in the policy of the subject ^insured is intended to save the expense and doul)t that ^ gy -, may attend the investigation of value, as aflecting tlie quantum of L J compensation only. It may operate, according to events, to tlio advantage or detriment of either party ; and, where no fraud exists, both are bound by it. We are of opinion that there is no ground for the first exception. "The second exception is, that the Chief Justice ought not to have directed the jury to take into their consideration all the circumstances that aflectcd the ship ; and that he ought to have instructed them to lay entirely out of their consideration the national character of the ship, and the consequences resulting therefrom. "We cannot agree to the propriety of this exception. The Chief Justice has laid down the usual and recognized rule, that the jury ought to consider whether under all the circumstances attending the ship, a prudent owner, if uninsured, would have repaired the vessel. Now, to the value of the repairs must be added to her value as she lay in the dock, that is, to 4,615/. must be added 700/., making 5,31.5/. as the cost. Upon which the Butch witnesses say her value in Ho/land would, on the outside, not have exceeded 2,915/. The English witnesses make the amount of the repairs less : and they say, had she been a British ship, with a British register, she would have been worth more than the repairs ; and that, in that case, it would have been the interest of British owners to have repaired her; implying that, not having a British register, her value would not have equalled the repairs, and that it would not iiave been prudent in the plaintiffs to have repaired her. Now, the effect of this evidence is, tliat the ship, when repaired, would not have been worth the value of her repairs either in England or in Holland. It does not appear that she would have been worth more any where else. Is it, then, to be contended, that the jury are not to attend to the circumstances of the value of the ship when repaired.'^ Has it ever been doubted that the value of a ship when repaired is an important criterion to determine whether she ought to be repaired or not after being *damaged.^ or that, if the amount of p *4oo "1 repairs gready exceed the value they will confer on the ship, the L -^ assured may abandon, and claim a total loss.^" But it is said that the jury have no right to look at the circumstances that she was a Dutch ship, and that by the usages that prevail in Holland her value, when fully repaired, would never- theless, in consequence of her disaster, be less than the amount of repairs. For the same reason, it might be contended that the jury ought to lay out of their consideration that she was not a British ship, and that therefore her value in England, when repaired, would be less than the cost of repairs, not being entitled to a register. The substantial fact is, that her value, when repaired, is less than the cost. The reason of the fact is, in the one case, the want of a British register; in the odier, the usage of trade in Holland, which would prevent any body from giving a price for her equal to the repairs. BoUi these circumstances existed and affected the ship before the policy. Surely, it the question of her value when repaired be material, the jury may look at the rea- sons which are alleged to impair or increase the value. One witness says she would not sell in London for one-half the cost of repairing her : another says she would not sell for half the cost in Holland. If this evidence be admissible at all, may not the witnesses go on to allege the reasons of their opinion in both cases .►• Suppose that in giving evidence of her value the witnesses had proved that, for different reasons, peculiar severally to each maritime state in Europe, 220 TOTAL LOSSES AND ABANDONMENT. but all existing at the time of the insurance, the ship, when repaired, could not have been sold at all, or could only have been sold for a price next to nothing : could it be gravely alleged that the jury could not take this into their considera- tion, because the underwriters know nothing of the laws or usages of other maritime nations besides their own? That proposition, viz: that the under- writers are not presumed to know the usages or laws of foreign states, has indeed been urged by the counsel for the plaintiff in error beyond what is con- r *40l 1 ^'^^^'^'^ either with reason or practice. The underwriters upon *a L -' foreign ship or a foreign voyage are presumed to know the usages and the laws which affect that ship or that voyage. But, if the proposition were true to any extent, it has no place in this argument ; for the question is not about their knowledge, real or presumed, but a question about a fact which, whether they knew it or not, affects the value of the ship. If indeed the depreciated value of the ship had arisen from any circumstance occurring after the policy was effected, and wholly unconnected with the perils insured against, such as a new law or regulation affecting trade or shipping, the case would have presented a question well worthy of consideration, upon which, however, it is unnecessary to offer any opinion. Where such circumstances occur, it may be necessary to qualify the proposition that, if a prudent owner, uninsured, would not repair the vessel, it would be a total loss. But, as the case now stands, if the jury are to lay out of their consideration all the previous circum- stances that may eventually affect the value of a Dutch ship, they must by the same rule disregard all the circumstances that may affect the value of a ship of any nation. By what criterion, then, are they to judge of the value of any ship? or how can they receive any evidence of the value at all, if they may not sift the grounds and reasons of the opinion of witnesses? The argument, pushed to Its full extent, presents to them nothing but a ship capable of being repaired and put into as good a plight to swim as before, but abstracted from all the circumstances which are connected with her and which affect her value j and, consequently, instead of considering these circumstances, they ought, upon a question whether a prudent owner would repair, to turn their attention to no other circumstance but the cost of repairs, and the original value of the ship when insured. Whereas in Milks v. Fletcher, {a) Lord Mansfield says, ' If she had been repaired at Neiv Fork, the expense might have exceeded what she would have sold for on her return to London.' This case, and all the r *402 1 others which *follow on the same subject, will be found to refer to '- -J the actual price of the ship when repaired, and not to her original value. "There is one plain way of considering this question: If the underwriters had accepted the abandonment, would they have repaired the ship themselves, or would they not have taken into consideration that she was a foreign ship, and could not obtain a British register ; and that she was a Butch ship, and could not be advantageously sold in Holland, because, under the circumstances, the Butch trading companies would not employ her; and, finally, that the exclusive laws of all other maritime states would affect her value in each? And if they necessarily would and must have considered all these things, which would have led them to sell the ship for 700/., rather than repair her, the assured and the jury are equally entitled to take them into their consideration." Judgment afTirmed. And in the case of Parry v. Merdein, [b) where a ship, having goods on board on which an insurance was effected, was placed in so much danger by perils of the sea, that the crew deserted her, in order to save their lives, and (a) Doug. 235. (J) 9 B. & C. 411. TOTAL LOSSES AND ABANDONMENT. 221 the owners of the goods, upon receiving intelligence of this, gave notice of abandonment; a few days afterwards, however, the vessel was found by some fishermen, and towed into port and repaired, but the goods, which were of a perishable nature, had l)een so much injured by the salt water, that they would not have been worth anything if forwarded to their place of destination : it was held that the assured were entitled to recover for a total loss. The assured cannot be allowed to turn a partial into a total loss. This was shewn in the case of Cazalet and others v. iSV. JJarbe, (h) it was an action on a policy of insurance upon the ship Friendship^ from Wybur^ to Lynn., subscribed by the defendant for 100/. at two guineas per cent. The defendant *pleaded a tender, and paid 48/. into Court. The cause p *Af\'i ^^ was tried at Guildhall., before Mr. Justice Butler, when a case L -■ was reserved for the opinion of the Court, stating that the damages sustained by the ship in the voyage insured, did not exceed 48/. per cent., which sura the defendant had paid into Court. That when the ship arrived at the port of Lynn she was not worth repairing. The question for the opinion of the Court was. whether the plaintiff's had a right to abandon? Mr. Justice JVilles. — "Tlie question is, whether, under these circumstances, the plaintiffs had a right to abandon, or, in other words, whether they can turn a partial into a total loss.'' The finding of the jury in this case determines the question, because it is expressly found that the damage did not exceed 48/. per cent. The case then states, that the ship was not worth repairing, but no mention is made of what was her real worth; so that the remaining materials of the ship, if sold, may make up the difference between 48/. and 100/. per cent There has been no loss either of the ship or of the voyage ; but, being an old ship, she suffered so much that she M-as not worth repairing. I cannot now determine that there was a total loss, when the jury have already said that there was only a loss of 48/. per cent. As to the case cited of Bond v. Hunter., (a) this question never occurred in it. The action was brought upon the homeward-bound policy, and it was sufficient to say, that that policy never attached, for the ship had received her death's wound in her outward-bound voyage. In the case of Milles v. Fletcher., a total end was put to the voyage, {b) In the other cases, the questions arose upon losses which had happened during the several voyages ; here the voyage has been performed, and the ship is arrived ; and after the jury have found that the damage sustained did not amount to more than 48/. per cent., the Court are precluded from saying it is a total loss." Mr. Justice Biiller. — "Nothing can be better established *than r- ^.„ . -, that the owner of a ship can only abandon in case of a total loss. L -J The cases which have been cited went upon that ground. In the case of Jen- kins v. Mackenzie, (o) though the ship was brought into port, yet the capture, as between the assurer and assured, was a total loss. But there is no instance where the owner can abandon, unless at some period or other of the voyage there has been a total loss. No such event has happened here ; for the jury have expressly found, that the loss amounted only to 48/. per cent. Even allowing total loss to be a technical expression, yet the manner in which the plaintiff's counsel has stated it. is rather too broad. It has been said, that the insurance must be taken to be on the ship as well as on the voyage : but the true way of considering it is this : it is an insurance on the ship for the voyage. If either the ship, or the voyage be lost, that is a total loss ; but here neither (b) 1 T. R. 187. (a) 1 T. K. 188, tried before Lord Mansfield at Guild. 1781. (i) Vidi supra, ZIJL. (a) Brown's Ap. Ca. 141. 222 TOTAL LOSSES AND ABANDONMENT. is lost. The case of Hamilton v. Mendez is decisive. Judgment for the defendant. In another case of Furneaux v. Bradley, {d) an action was brought on a policy of insurance on the Prince of TFales, in port or at sea, for six months, from tlie 18th July, 1777. The ship in question was in government service, bound from Cork to Quebec. She arrived there, but the season being too far advanced before she was ready to return, she was removed into the basin : but, on the 19th November, she was driven from thence by a field of ice, and damaged by running on tlie rocks. The condition of the ship could not be examined till Jlpril following, after the expiration of the policy. She was then, however, found to be bulged and much injured, but not thought irrepa- rably so. In the progress of the repair, difficulties arose for want of materials ; and the captain, after consulting the merchants and agents in the country, sold her. An account was made up, charging the insurers with the whole amount, and crediting them with the sums for which the ship sold, as salvage, r *Af\i\ 1 \jOxA Mansfield, at the trial said :—" The great point in *the L J cause is, whether this is a total loss by this accident.^ It is a new question: upon which I shall resei've a case for the opinion of the Court." After argument by counsel on both sides, his Lordship said, the justice of the case seemed to be, that the loss in November s\\ov\\[\ be taken as an average, not a total one ; and that the whole Court were of opinion, that the ship should be considered as damaged on the 19th of November, but not totally lost. In a subsequent case, 3r Masters v. Shoolbred, (o) before Lard Kenyon at Nisi Prius, it was held in an action on a policy for six months, where the ship had been captured and carried into Charlestown, sold by the captors, by authority of the French consul there, and purchased by the captain on account of the original owners, that this was only to be considered as a partial loss, and that the owners could not abandon. Lord Kenyon being of opinion that the captain was agent for the owners, recovering the vessel upon their account, and paying a kind of salvage, the amount of which would be the loss sustained, and which only constituted an average loss. His Lordship, however, admit- ted, that wlien the ship had been captured and carried into port in the enemy's possession, the assured at that period might have abandoned. But not having done so till the vessel was recovered, they could now only go for an average loss. So in Fitzgerald v. Pole {h) where a ship was insured for a cruise of four months, free from average, and upon a special verdict it appeared that while the ship was on her cruise, and within the four months, the crew mutinied against the captain and his officers, and by force carried the ship to Jamaica, and before her arrival there, by force seized the boat, fire-arms, and cutlasses, car- ried them ofi", and deserted the ship, whereby the voyage and cruise were lost for the remainder of the four months, but the ship arrived at Jamaica, though r *40G "1 "°^ ^^^^ ^^^^'^ ^^^ *^"^ ^^ ^^^ ^^^"^ months, *the Court of King's -^ Bench held that the assured were entitled to recover; but this judgment was reversed in the Exchequer Chamber, and the House of Lords confirmed the judgment of reversal, for the insurer being by the terms of the policy free from all average, the assured could not be entitled to recover except for a total loss : and the ship being found by the special verdict to be in good safety at her proper port, at and after the end of the four months, for which the msurance was made there could be no loss. {d) East, 20 Geo. 3. Park Ins. 365. (n) 1 Esp. 237. {!>) 5 Bro. Par. Ca. 131; Ambl. 214; and see a similar case of Wilson v. Foster, 6 Taunt. 25. TOTAL LOSSES AND ABANDONMENT. 223 It has been settled in a case of Manning v. Newnham^ {(f) in what cases a loss shall be deemed to be total, after an accident by perils of the sea. A policy was effected in London upon the ship Grace, her "cargo and freight, at and from Tortola to London^ warranted to depart on or before the 1st of Augutit, 1781. The ship valued at 2,470/., the freight at 2,250/., and the cargo at 12.400/., at a premium of 25 guineas per cent., to return 10 per cent, if she depart the JVent Indies with convoy for England and arrives." At the head of tlie subscriptions is tlie following declaration, viz : — on ship, freight, and goods, warranted free of particular average. This ship, with her cargo, was a Dutch prize taken by a privateer of Tortola, and was there condemned : during the whole of licr stay at Tortola, (four or live months,) she was never unloaded. On the 1st of August the whole fleet of merchantmen got under weigh, under the convoy of the Ci/c/ops, ^c, but not being able to get clear of the islands that day, they cast anciior during the night, and the next day got clear of the islands. About 10 o'clock on the 2nd of August, several squalls of wind arose, which occasioned the ship to strain and make water so fast, that the crew were obliged to work both pumps ; and, on the third, the captain made a signal of distress : in consequence of which she was obliged to return to Tortola, under protection of one of his Majesty's ships. The captain made his protest, and a survey was had, by which the ship was declared r ^.f. *unable to proceed to sea with her cargo, and that she could not be L -1 repaired in any of the English islands in the J Test Indies: and that many of the sugars in the bilge and lower tier were washed out, and several of the casks broke and in bad order. The ship and the whole of the cargo were sold accordingly at Tortola. The assured claimed a total loss of ship, caro-o, and freight, which the jury thought right, and found accordingly. A motion was made for a new trial, which upon full consideration was refused. Lord Mansfield, after stating the evidence, and tliat his prejudices at the trial were in favour of the underwriters, proceeded thus: — ''But, notwithstanding this inclination of my opinion, upon full consideration we think the jury have done right. If by a peril insured the voyage is lost, it is a total loss : other- wise not. (ff) In this case the ship has an irreparable hurt within the policy; this drives her back to Tortola, and there is no ship to be had there which could take the whole cargo on board. There were only two ships at Tortola, and both could not take in the cargo. To show how completely the voyao-e was lost, and that no ship could be got, the assured have not been iible to send that part of the goods which they purchased forward to London. It is admit- ted there was a total loss on tlie freight, because the ship could not perform the voyage. The same argument applies to the ship and cargo. It is a contract of indemnity : and the insurance is that the ship shall come to London. Upon turning it in every view, we are of opinion that the voyage was totally lost, and that is the ground of our determination." The rule was discharged, ib) This subject has been much considered and discussed ; and the case of Man- ning v. Neivnham, though not overturned, has received a considerable shake. In Anderson v. JVallis, [c) it was held that a mere retardation of a voyagef *where the insurance was on a cargo, not of a perishable nature, ^ ^ . ' -, to another season, (the voyage being to Quebec) was not a ground ^ 0« J of abandonment, (a) {d) Trin. Term, 22 Goo. 3, Park Ins. 368. («) But soe post, p. 409, per Lord Tenterdcn, in Doyle v. Dallas, 1 M. & R. 55. (b) Sec Wilson v. Royal Exch. Comp. 2 Camp. 623. (c) 2 M. & S. 240, ante, p. 359. (a) In Hunt v. Royal Assurance ('omp. 5 M. & S. 47, and ante, p. 358, it was held, that the loss of a voyage for a season vyas not a ground of abandonment where the cargo Vol. VII.— Q 224 TOTAL LOSSES AND ABANDONMENT. But in the case of Dixon v. Rcid^ [h) where tlie cargo is taken out of the possession of the assured by the fraudulent and barratrous acts of the master and mariners, the loss is total and the assured may abandon. Thus in an action on a policy of insurance on the ship and cargo from Sierra Leone to a port of discharge in Great Britain. The ship sailed from Sierra Leone with two hundred and thirty-three logs of wood on board, on the 8th 3Iarch, 1820, but was barratrously taken by the crew to Barbadoes, where she arrived on the 28th Jlpril; and the ship was condemned and sold, and forty-seven logs of timber were also sold, to pay the charges incurred there, and the remaining one hundred and eighty-six logs were sent home in another vessel. The assured abandoned to the underwriters. The question was, whether this was a total loss with benefit of salvage, or merely an average loss. For the underwriters, it was contended, that a loss of the voyage for a season by the perils of the sea, was not a ground of abandonment where the cargo was in safety : and the cases of Anderson v. JVulUs and Hunt v. Royal Exchange Assurance Com- pany were cited as authorities. But Abbott^ C. J., said, "I am of opinion that this is a case of a total loss with benefit of salvage. The case is plainly distinguishable from the cases which have been cited in argument, where the ship has been driven out of her course by the perils of the sea, and the voyage thereby retarded. In these cases, the cargo was during the whole time in the possession of the assured. Here, by the fraudulent barratry of the master and ^ 1 itiariners, the cargo was taken out of the ^possession of the assured. L -I From that time it became to them a total loss. The payment of the wages at Barbadoes, and the sending home the one hundred and eighty-six logs, were not the acts of the assured, or of any person authorized by them. I think, therefore, that this was a total, and not an average loss." In the case of Gardiner v. Salvador, (a) which was an action on a policy of insurance, where a total loss by perils of the seas was alleged in the decla- ration, it was proved that the ship was driven by a current on a rock. The captain consulted with several persons, who were of opinion that it was impos- sible to get her off, and that the best course was for him to sell her as she lay, which he accordingly did. The purchaser succeeded in getting her off in five days, and the whole cost to him, including the price he paid for the stores, amounted to 750/. Her value, after the repairs, was stated to be 1,200/. Bayley, B., told the jury, "The question in this case is, whether you are satisfied there has been a total loss by perils of the seas. I know no such head of insurance law as loss by sale. If the situation of the ship be such, that by no means within the master's reach it can be treated so as to retain the character of a ship, then it is a total loss. If the captain, by means within his reach, can make an experiment to save it with a fair hope of restoring it to the character of a ship, he cannot by selling it turn it into a total loss." The defendants had a verdict. In a recent case of Doyle v. Dallas, (b) tried before Lord Tenterden, at Guildhall, on a policy of insurance on the ship Triton, averring a total loss by perils of the sea, it appeared that the vessel, having been taken by a pilot to the iimer roads at Buenos Ayres, and anchored there, struck upon an anchor, and, in spite of the efforts made to move her, ultimately sunk, and lay on her side, completely under water at high tide and pardy under at low ebb. The was in a state of safety and not of such a perishable nature as to make the loss of the voyage the loss of the commodity, although the ship be incapable of proceeding in her voyage ; and sec Barker v. Blakes, 9 East, 283. (i) 5 B. & C. 597. (a) 1 M. & Rob. ! 16, and sec Tanner v. Bennett, R. «Sc M. 182. {b) 1 M. & Kob. 48. TOTAL LOSSES AND ABANDONMENT. 225 cargo was almost entirely discharged. The ship was surveyed by some cap- tains *of ships, approved of by tlie owner and by Lloyd's agent r- ^.,(^ -, at Buenos Aijres, and they advised tliat she should be sold, on the L J ground that the expense of raising her would probably be greater than she was worth. She was therefore sold, and was ultimately got off I)y the purchaser, but at great expense. The value of the Triton before the accident was about 2,300/. or 3,000/., the insured valued was 2, .500/. ; the expense of raising her and having her repaired amounted, in the whole, to about 1,350/. If she had been coppered (which she ought to have been in order to carry the cargo in question) she would have cost 300/. more. But, repaired as she had been, she might have sailed for England in ballast, or with some kind of a cargo; and she was in fact used by her owner as a coasting vessel at Rio Janeiro. On this state of facts, the plaintiff claimed to recover for a total loss ; the de- fendant contended tliat it was an average loss only, and paid into Court a sum sufficient, as he alleged, to cover the amount. Lord Tentcrden, in summing up to the jury, said: — "The only question is, whether this amounts to a total loss.? The ship is not boddy and specifi- cally lost; but circumstances may have occurred which, according to the law established in cases of marine insurance, are equivalent to a total loss. I think the circumstances in this case Avill have that effect if at the time of tlie sale that measure, on the sound exercise of the best judgment, appeared most bene- ficial to all parties. It is not enough that the owner acted honesdy in the sale, and intended to do for the best : the underwriters are not liable, unless he formed a correct judgment, that is to say the best and soundest judgment which could be formed under the circumstances which then existed. Nothing less than this will make a total loss, while the ship continues in existence." His Lordship, then, after referring to the evidence respecting the probability of raising the vessel, and of the expense of repairing her, proceeded thus : — "Besides this evidence of expense, it is proved that, after all these repairs, the ship was still unfit to sail for England with a cargo of hides — such a cargo as the plaintiff had contracted for. I do not think that *circum- r- ^. ., , -, stance enough to justify the sale. The underwriters do not under- L J take that the ship shall be able to take this or that cargo. If the ship could have come to England even in ballast, I think, (certainly with any cargo) so that on her arrival she would have been worth the money expended on her. she ought to have been repaired for the purpose. The loss of the voyage will not, in ray opinion, make a constructive total loss of the ship. Some cases have been so decided ; but as the thing insured remained in specie, I do not think that amounted to a total loss. The best thing for the underwriters must be done not merely for the owner, and as they indemnify only against the loss of the ship, the loss of the voyage would not injure them. Taking all the cir- cumstances into your consideration, if you are of opinion that the plaintifT, acting as he did, exercised a sound judgment as well for the benefit of the underwriters as for his own interest as owner, and did what at the time was best for all parties, your verdict will pass for the plaintiff: if otherwise, for the defendant." Verdict for the defendant. A motion was afterwards made for a new trial, which was refused. The general convenience of making an abandonment, has led to an opinion that it is more necessary than it really is. A party is not, in any case, obliged to abandon, neidier will the want of abandonment oust him of his claim for that which is an average or a total loss, as the case may be. Where there is an abandonment, the risk is thrown upon the underwriters ; where there is no abandonment, the party takes the chance of recovering according to his actual loss. Without an abandonment, an average loss may be recovered : abandon- 226 TOTAL LOSSES AND ABANDONMENT. ment is only necessary to make a constructive total loss, {a) But where the thing subsists in specie, and there is a chance of its recovery in order to make a total loss, there must be an abandonment, (h) *The question as to the necessity of making an abandonment in L ^^■^ J certain cases in order to enable the assured to recover for a total loss, it has already been observed, has been the subject of many recent and important decisions, by which the law appears to be now quite settled, (a) The case oi Mellish v. Andreivs^ (b) and MuUett v. Sheddcn, (c) just referred to, fully support the doctrine that where there is a total destruction of the sub- ject-matter of the insurance, no notice of abandonment is necessary. So in the case of Cambridge v. Anderton, {d) which was tried before Mbott, C. J., at GuildhnU, it appeared that the ship, whicli was insured from Quebec to Bristol, set sail from Quebec, and about two hundred and twenty miles below Quebec, got upon the rocks in the river St. Laivrence in foggy and tempestuous weather; she was there much injured, and surveyed by experienced persons, who gave it as their opinion, that the expense of getting her off (if it could be accomplished) and repairing her, would far exceed the value of her when repaired. Under these circumstances, the captain and the agents of the plaintiff sold the ship with her certificate of registry. The purchaser did succeed in getting her off, took her back to Quebec, and repaired her; she afterwards sailedon a voyage to England, but was lost in the Gidf of St. Lawrence; the plaintiff never gave any notice of abandonment to the underwriters. Tlie Lord Chief Justice told the jury that if, under the circumstances in evidence, they thought that the ship was not repairable at all, or that when repaired, she would not be worth the expense of doing the repairs, the plaintiff was entitled to recover for a total loss, but that otherwise they could claim for an average loss only. The jury found a verdict for a total loss. Upon a motion for a new trial, Abbott, C. J., said, "If the subject-matter of the insurance remained a ship, it was not a total loss, but if it was reduced to a mere congeries of r -4.11 ~\ P^^i^'^^' t'^^ vessel was a *mere wreck, the name which you think L J fit to apply to it cannot alter the nature of the thing." [a) And the same learned Judge expresses himself in nearly the same terms in the case of Allen v. Sugriie, (b) which was an action of a policy of insurance on a ship valued at 2,000/., and averring a total loss by perils of the sea. The ship had been stranded at the entrance of the Hzdl dock ; it was proved that it would have cost 1,450/. to have repaired her, and when repaired, she would not have been worth that sum. It was contended for the defendants, that the plaintiff could not recover for a total loss, as in that case they would receive 2,000/., whereas the expense of repairing the damage would not be more than 1,450/., and that as the defendant had paid sufliicient into Court to recover that sum, the plaintiff should be nonsuited. On the m\enisi. Lord Tenter den thus expresses himself, "I am of opinion Uiat the question whether the loss sus- tained is an average or a total loss, is precisely tlie same when the value of the ship has been mentioned in the policy, and when that has been left open. If the value has not been mentioned, it must be ascertained by evidence; if it has been mentioned, then all further inquiry is unnecessary, as the parties have («) By I/onl Ellcnborough in Mellish v. Andrews, 15 East, 14, and iu Mullettv. Shed- den, 13 East, 309. (Ij) By Lord Ellcnborough in Tunno v. Edwards, 13 East, 491. (a) Sec llio judgment in Koux v. Salvador, 4 Scott, p. 32, and ante, pp. 149, 353, 355, of this Treatise. (//) 15 East, 13. (c) 13 Ea.st, 304. (d) 2 B. «fe C. 691. («) And sec Robcrt.son v. Clarke, 1 Bing. 445. (i) 8 B. Si. C. 501. TOTAL LOSSES AND ABANDONMENT. 227 agreed as to what shall, in the event of loss, be considered the value. If under- writers find, by experience, the practice of enterinj^ into valued policies is inju- rious to them, they may very easily avoid it for the future. Then was this a total loss.'' The jury have ibund that the ship was so much damaged as not to be worth repairing, or in other words--, that although the materials of tlie ship remained, the sliip itself did not. That in my mind constitutes a total loss, and it would be strange if this were otherwise, for the ship ceased to exist for all useful purposes as a ship. A total loss of the ship, therefore, ought to be paid for, and that is the sum agreed upon as the estimated value of the ship, minus the value of the materials saved."* The case of Hadkinson v. Robinson, (c) which is a leading r- ^a,a -> *case on the subject, is deserving of being mentioned. It was an L -• action on a policy of insurance on pilchards, on board the Paxora, at and from 'Case of Manning and another v. Irving (a). — A policy was effected in June, 1843, upon a ship (originally built for the East India Company's service) valued at 17,500/. at and from China to Madras, and back to China. The vessel was purchased by the plaintiffs in 1839 for 11,000/. During the voyage, the vessel was, by a peril insured against, dis- masted; and by the wreck of the masts and rigging falling over the ship's sides and striking under her hull, her copper and sheathing were much injured. The necessary expenditure to repair the damages so sustained by the .ship, and to refit her masts, sails and spars, rigging, and sheathing, &c., so as to render her seaworthy for the voyage insured, would have amounted to not less than 10,500/. ; and, if such expenditure had been incurred, the ship would have been worth a sum not exceeding 9,000/. During the hurricane the vessel made no more water than usual; and, upon examination of the ship at Calcutta, the hull did not appear to be injured, and the ship appeared to be sound in ail other respects than those above mentioned. Held, upon a special case reserved, that the underwriters were liable as for a total loss. This was an action of assumpsit brought by the plaintiffs, managing owners of a vessel called the General Kyd, against the defendant, one of the directors and chairman of the Alliance Marine Insurance Company, under the provisions of an act of Parliament, making the company liable to be sued in the name of their chairman. The first count was upon a policy of insurance for 3,000/., duly subscribed on behalf of the company upon ship valued at 17,500/., at and from China to Madras, while there, and back to China, not east of Hong Kong, with leave to call at the Straits; and averred a loss by perils of the sea. The second count was for money paid, the third for money had and received, the fourth for interest, the fifth on an account stated. The defendant pleaded to the first count, that the vessel was not wholly lost, in manner and form, &c., and to the last four non assumpsit; upon both of which pleas issue was joined. At the trial, before Crcsswell, J., at Guildhall, at the Sittings afler Trinity Term, 1844, a verdict was found for the plaintiffs, damages 3,000/., subject to the following case: — The plaintiff's vessel, the General Kyd, of 1318 tons, had been originally built for, and employed in, the trade of the East India Company, whilst the Company retained its trading privileges, and had been built at a very great expense; and in consequence of the Company ceasing to trade, upon the alteration of their charter, the General Kyd, and all other ships of the same class, ceased to be in demand. The plaintiffs purchased the vessel in 1839, for 11,000/. The policy in question was effected by the plaintiffs in June, 1843; and at that time, according to advices from the purser of the ship, then in China, the cost of the vessel to them, including, however, wages and other matters not constituting part of the permanent value of the ship, amounted to 17,500/., tlie value in the policy. No insurance was eflccted by the plaintiffs on the freight of the said ship on the voyage insured. The vessel, upon former voyages, had been frequently insured at the same or a higher valuation, and was known to the defendants to have been in the service of the East India Company. The ship sailed on the voyage insured, from Singapore, on the 25th of April, 1843, and in the course of such voyage arrived in the Madras Roads upon the 18th of May following, (a) 1 Common Bench R. 168. (c) 3 Bos. & Pull. 388. 228 TOTAL LOSSES AND ABANDONMENT. Mounfs Bay, in Cornwall, to Naples, with leave to join the convoy at Naples or elsewhere. The policy contained the usual memorandum, exempting the underwriter from average losses on fish, &c., unless general, or the ship be stranded. The declaration stated the loss to be, "that after the loading of the for the purpose of taking in a cargo of cotton, which was purchased and provided for ship- ment on behalf of her owners. On the 2 1st of May, 1843, whilst so lying in the Madras Roads, the vessel was carried out to sea in ballast by a violent hurricane; and on the following day, during the gale, and whilst still at sea, she was dismasted, and by the wreck of the masts, sails, and rigging falling over the ship's sides, and getting and striking under the hull, the copper and wood sheathing on the bottom of the vessel was much injured. In order to save the vessel, and for the preservation of the crew, she was necessarily carried into Calcutta. The necessaiy expenditure to repair the damages sustained by the ship, and to refit her masts, sails, and spars, rigging, copper and wood sheathing, and other things, so as to render her seaworthy for the voyage in question, would have amounted to a sura of not less than 10,. 500/. If such expenditure had been incurred, the ship would have been worth (either in Eng- land or Calcutta) a sum not exceeding 9,000/. ; and such would have been her marketable value if put up for sale in that state of repair, either at the period of effecting the policy, or just before the damage, or at the time at which the repairs would have been completed. During the hurricane the vessel made no more water than usual ; and, upon examination of the ship at Calcutta, the hull did not appear to be injured, and the ship appeared to be sound in all other respects than those above mentioned. The vessel, upon her arrival in Calcutta, was put into dock for survey and examination. She was surveyed four times, on the several dates following: — 2nd of June, 9th of June, 3rd of July, and 7th of July, 1843. Upon the survey held on the 2nd of June, the surveyors recommended that the vessel should be docked for further examination, and in the meantime spars should be procured for masts, yards, &c., on the most reasonable terms; also that estimates should be obtained from the various ship-chandlers and others for the supply of the stores required to replace the General Kyd in the same position as before the hurricane. Upon the survey held on the 3rd of July, 1843, the surveyors recommended the copper and sheathing to be stripped off the bottom, and that it should be dubbed down bright from the gunwale to the keel, to ascertain whether or not the ship had received any further injury in her bottom from the wreck of the masts. Upon the survey held on the 7th of July, 1 843, the surveyor reported that the ship had experienced very severe weather, having been blown out of the Madras Roads, after which she encountered one of those violent gales of wind, or hurricanes, which prevail in the Bay of Bengal during the month of May, which reduced the hull to a complete wreck, the main- mast and mizen-mast breaking off below the hounds, the fore-mast and bowsprit badly sprung ; in fact so crippled was the ship in masts and yards as to require nearly the whole of them to be renewed; that the examination of the hull which he had been enabled to make on the upper deck, gun or middle deck, orlop, and hold, shewed that the said ship had not worked on her fastenings; that the closeness of all the butts, scarples, and edges of the planks, shewed not the slightest movement; and that the beam-ends, knees, and bolts seemed to be nearly in the same state as when first forged and fastened ; that equally so was the hull on the outside, as regarded the topsides and wales; and that, judging from the bottom plank, where the copper and sheathing had been torn off by the wreck of the masts, the seams were in a most perfect state ; that the keel of the said ship was remarkably straight for a vessel of her age, having only four inches camber in thirty feet from the fore post; that aft, from that length to the stern post, it formed nearly a horizontal; a similar sized ship built in Europe of oak and fir, tree-nailed fastened, would in all probability, when from twelve to fifteen years old, have cambered fifteen to eighteen inches. The blocks were not cut into, which shewed that the keel had not moved since the said ship was docked. The said lust-mentioned surveyor recommended that the bottom of the said ship should be stri[)p(!(l, the copper and sheathing being much injured by the masts, thoroughly over- hauled, duhbcd bright, and if it proved, as he expected, free from decay, it should be well caulked, felted, sheathed, and coppered; that the channels and chain -plates should be partly renewed and repaired ; that the masts and yards should be completed, and the wale-s, top- sides, and decks caulked, with sundry trifling jobs to be done about the hull ; after which TOTAL LOSSES AND ABANDONMENT. 229 said pilchards on board, &c. the said ship or vessel with the pilchards, &c., &c., departed and set sail from the said port of Penzance aforesaid, on her said intended voyage in the said writing and policy of insurance mentioned, and afterwards, and whilst the said ship was so sailing and proceeding on her said the said last-mentioned surveyor reported that the said ship, as regarded hull, masts, and yards, would be fit for sea, and a good sea risk to any part of the world. The said ship was l)uilt at Calcutta about thirty years before that time, of the best mate- rials, and was most expensively fastened with copper from the keel to the wales, and in the upper works with iron. Estimates were procured after the surveys, of the costs of the necessary repairs and refit- tings, to render the ship seaworthy as before mentioned ; and such cost would have amounted to the sum before mentioned. After such repairs the vessel would not have been a worse ship than before, unless it had been discovered in the course of such repairs that the vessel had received any further injury in her bottom from the wreck of the masts. Some materials for repairing the vessel were procured by the ma.ster, and some repairs were commenced, but were afterwards discon- tinued. Those repairs were principally for the purpose of protecting the vessel from sus- taining additional damage ; and masts, spars, sails, and other articles were also purchased for the purpose of proceeding to efiective repairs. On the 10th of October, 1843, on receipt of information of the extent of damage and repairs required, (as stated in the surveys and estimates) an abandonment of the vessel was dulv made to the underwriters, which the underw^riters refused to accept. 'i'he vessel has not since been repaired. The question for the opinion of the Court is, whether, under the circumstances, the defendants were liable as for a total loss. If the Court shall be of that opinion, interest is to be added to the amount, if the Court shall be pleased to put itself in the situation of a jury, and shall think it fit that interest should be allowed. If the Court shall be of opinion that the loss was an average loss, and not a total loss, the verdict is to be entered for an amount of damages to be estimated out of Court, in a mode agreed upon between the par- ties. Either party is to be at liberty, upon the argument, to refer to the pleadings, and, with the permission of the Court, to turn the case into a special verdict. Sir T. Wilde, Serjeant, (with whom was Greenwood,) for the plaintiffs, (a) Upon the facts stated in the special case, the defendants are liable as for a total loss. It appears that, in the course of the voyage, the vessel, by a peril insured against, sustained damage to such an extent, that she was no longer capable of being used as a ship without an outlay of 10,.'J0(i/., which would exceed by 1,500/. her value when repaired. It has been so repeat- edly decided that the underwriters are liable as for a total loss, where the vessel is by perils of the sea reduced to such a state as to be no longer available as a ship but at an expense which no prudent owner, if uninsured, would incur, that it would be idle to argue the point in a Court of co-ordin.ite jurisdiction. The principal case upon the subject is that of Allen v. Sugrue, {b) to which may be added Young v. Turing, (c) Nor does the circumstance of the value being stated in the policy make any difference: the cases of Allen v. Sugrue and Young v. Turing both arose upon valued policies. [Maule, J "The value stated in the policy can have no bearing on the question."] The Court called upon Chaniiell, Seijeant, (with whom was L. J. Brown,) for the defendant. Admitting the force of the decisions adverted to, the defendant is desirous of reviewing them before a Court of error. [Creswell, J., referred to Cambridge v. Anderton, {d) and Sir T. Wilde to Read V. Bonham, (e) as authorities for the same position.] In Allen v. Sugrue, the vessel, which was valued in the policy at 2,000/., received damage by perils of the sea, which could have been repaired for 1,4.50/. ; but the jury found that she was not worth repairing; and it \yas held that this was a total loss, and that' the assured were entitled to recover the sum at which (rt) The plaintiff's point (more general than the statement of the question at the conclu- sion of the case) marked for argument was, "that, under the circumstances set forth in the case, there was a total loss, and that the defendant was liable upon the policy effected with the company as for a total loss." (b) 8 B. & C. 561 ; 3 Mann. & R. 9. Ante, p. 413. (c) 2 Mann. & Gr. 593 ; 2 Scott, N. R. 752. Ante, p. 397. \d) 2 B. & C. 691 ; 4 D. & R. 203 ; R. & M. 60 ; 1 C. & P. 213. Ante, p. 412. (e) 3 Brod. & Bingh. 147; 6 J. B. Moore, 397. 230 TOTAL LOSSES AND ABANDONMENT. voyage, and before her arrival at Naples, to wit, on, &c., the port of Naples, aforesaid, was, by the persons exercising the powers of government in the kino-dom of Naples, shut against all ships the property of any of the subjects of our Lord the King, or sailing under the colours of our Lord the King, and against all merchandise, the property of any such subjects, carried in such ships, under the pain of such ships and merchandise being confiscated by the persons exercising the powers of government in the kingdom of Naples, where- by the said ship, with the said pilchards on board, (the said ship being then and there the property of subjects of our Lord the now King, and sailing under the colours of our Lord the now King, and the pilchards being then and there the property of the plaintiff', who was then and there a subject of our Lord the now King,) was then and there prevented from pursuing her voyage to Naples aforesaid, and the voyage was thereby then and there wholly defeated and lost, and the pilchards then and there became of no value to the plaintiff." At the the vessel was valued in the policy. And in Young v. Turing, the ship Eliza, (Dutch built) valued at 8,000/. was insured at and from Rotterdam to Java and Sumatra, and back again to a port in Holland ; in the course of her voyage she was stranded on the Good- win Sands, and plundered ; she was afterwards removed, and ultimately brought to London, and notice of abandonment given to the underwriters: it appeared, that just before the Eliza was cast away, she was worth 5,833/. ; that her value as she lay was 700/. ; and that the salvage was 420/. ; it was proved by English witnesses that the expenses of repairing the ship in England would be 4,615/. ; that if she had been entitled to a British register, she would have been worth, when repaired, from 4,500/. to 4,700/. ; and that, if she had been a British ship, it would have been prudent for a Briti.sh owner to repair her: it was proved by Dutch witnesses, that the expense of repairing her in Holland would have been far greater, and that her value when repaired in Holland would not have exceeded 2,915/.: it was also proved that the trading companies in Holland vi'ill not employ a vessel that has been stranded in the manner in which the Eliza was stranded, however perfectly she may have been repaired, and that this circumstance would affect her value in Holland. The Judge, in his summing up, told the jury that, in considering whether this was the case of a partial or a total loss, they ought not to take into account the value in the policy ; and that, in considering the same question, they ought to look at all the circumstances attending the ship, and to judge whether, under all those circumstances, a prudent owner, if uninsured, would have declined to repair the ship; and, if so, they might find it a case of total loss. Upon a bill of exceptions tendered, this direction was held to be correct. In the present case, the Court is asked to decline to infer from the facts stated, that a prudent owner, if uninsured, would not have repaired the vessel. It appears that the ship was dismasted in a hurricane, and that, though somewhat damaged in her sheathing, her hull was altogether uninjured; and that the expense of repairing her would exceed, by 1,500/., her marketa- ble value when repaired. I3ut it also appears that the plaintiffs had bought her for 1 1,000/. And it may be that a vessel is worth more to her owners than her mere market value. It is also to be observed, that the plaintiffs themselves have invariably treated her as worth more than 10,500/. : and she was valued in the policy at 17,500/., at which, or a higher value, she had frequently before been insured. There is no suggestion by any surveyor that it would not have been prudent to repair her. [Cresswell, J. — "The question is, not whether or not tlie plaintiffs would, if uninsured, have repaired her, but v/hether a prudent owner would have done so, abstractedly from any particular fancy. Now, a prudent owner could hardly be expected to lay out 10,500/. to get a ship worth only 9,000/."] In Young V. Taring the peculiar position of the assured was taken into account. So, here, taking the peculiar character of this ship into consideration, the Court will draw such inference as they may think reasonable. [Maule, J. — "It is a common course in special cases to pro- vide that the Court shall be at liberty to draw such inferences from the facts stated as the jury might have drawn ; and that perhaps somewhat enlarges their power. But I appre- hend that the Court may in all cases draw such inferences as are reasonable, and obviously arise out of the facts that are stated. No person at all acquainted with the doctrine of Allen V. Sugrue could hesitate to pronounce tliis a case of total loss."] Pir Curiuin. There can be no doubt that this case falls within the principle of those that have been adverted to; and, consequently, the plaintiffs must have judgment. Judg- ment for the plaintiffs. TOTAL LOSSES AND ABANDONMENT. 231 trial before Lord Jllvanley, it appeared, amongst the other facts, that after this vessel sailed from Liabon, in tlic prosecution of her voyage, she received intel- ligence that English vessels were excluded from all the ports of Naplen ; and that afterwards die commander of the convoy ordered that all vessels destined for Naples or Sicili/ were to proceed to Fort Ma/ion, 'where the r- ^^^^^ -, report respecting the state of the ports of Naples was confirmed. ^ That in consequence of this a survey of the cargo was taken, under tlie direc- tion of the Vice Admiralty Court of Minorca, and sold there for a small sum of money. The assured abandoned to the underwriters, who refused to accept it. The jury found a verdict for the underwriters, to set aside wliich a motion was made inthe following Term. After argument at the Bar and time taken to deliberate. Lord Alvanletj delivered the judgment of the Court, confirming the verdict of the jury. His liordship said, — "The question is, whether the circum- stances which liave happened amount to a total loss within the policy.? The policy includes capture and detention of princes; and any loss which neces- sarily arises from such acts is a loss within the policy. But it has appeared to me that, where underwriters have insured against capture and restraint of princes, and the captain learning that, if he entered the port of his destination, the vessel will be lost by confiscation, avoids that port, whereby the object of the voyage is defeated, such circumstances do not amount to a peril operating to the' destruction of the thing insured. If they could, the same principle would have applied in case information had been received at Falmouth that the ship could not safely proceed to Naples. In Goss v. Withers, Hamilton v. Mendez, and Milles v. Fletcher, the principles by which a total loss is to be ascertained are clearly laid down. It is there said, 'That, if the voyage be lost or not worth pursuing, if the salvage be high, if further expense be necessary, if the insurer will not at all events undertake to bear that expense, &c., the insured may abandon, notwithstanding a recapture.' But the doctrine thus laid down is only applicable to cases in which the loss is occasioned by a peril insured against, which, as it appears to me, must be a peril acting upon the subject immediately, and not circuitously, as in the present case. Without entering, therefore, into the question which has arisen in another case, (a) I think that the detention of the cargo on board the *ship in a neiitral p ^^^^ -i port, in consequence of the danger of entering the port of destina- L tion, cannot create a total loss within the meaning of the policy, because it does not arise from a peril insured against. This is an insurance upon an article from England to Naples, warranted free from particular average. The plain- tiff, tlierelbre, cannot recover, unless the article be totally lost by a peril within the policy, and such peril must, as I think, act directly and not collaterally upon die thing insured. I much doubt whether, if a verdict had been found for the plaintiflf, judgment might not have been arrested. With respect to the case of Manning v. Newnham, it may be observed that Lord Mansfield expressly decides it upon the ground of the voyage being lost by one of the perils insured against, namely, by tempestuous weadier. The words of Lord Kenyan, in the case of AF Andrews v. Vaughan, in which he lays down, that the insured may recover for a total loss, if the voyage be lost, must be taken with reference to the case before him, in which the injury arose from capture. The case of Cocking v. Eraser {b) is an extremely strong authority to show that, if the article insured (being one of those mentioned in the memorandum) (a) See Dyson v. Rowcroft, post, 3 B. & P. 474; and sec Naylor v. Taylor, 9 B. & C. 718, ante, p. 393. (i^ R. R. 25 Geo. 3. Park Ins. 247, poxl. 232 TOTAL LOSSES AND ABANDONMENT. remain in specie, the assured cannot recover, though it be rendered totally use- less, and never reach the port of destination. But that case did not involve the question on which this case turns, namely, whether the loss was occasioned by a risk wiUiin the policy. Here, without entering into the question how far the caro-o was totally lost, the claim made by the assured arises from the ship not proceeding to that port to which she was destined. Had she proceeded to Naples, the loss insured against might have arisen. If we were to decide that the sale at Port Mahon was a total loss within the policy, it would afford to owners insuring cargoes of the description specified in the memorandum the opportunity of creating imaginary dangers whene\'er the cargo was not likely r ^117 1 ^° reacl^ the port of destination in a sound state, and by giving notice ' J *of abandonment to throw a loss upon the underwriters, to which they are not liable by the terms of the policy. We are of opinion the verdict was right." [a) A decision, upon similar principles, was made by Lord Ellenhorough, in the following case of Blanckenhagen v. London Assurance Company, [b) The insurance was on goods on the ship TJWunn, at and from London to Revel. The ship sailed from the Nore, under convoy of the Forrester sloop of war, for the Sound, and arrived there on the 27th October, 1807. The ship proceeded from thence towards Revel, on the 15th of November, under convoy of the Garnett sloop of war. On the 17th of November, whilst the ship was proceeding on her voyage with the convoy, it became known to the convoy that an embargo was laid on all British ships in Russian ports ; and in consequence thereof, the ship, under the orders of the convoy, returned to Copenhagen roads on the 18th of the same month. The ship JViUiam, together with the convoy, afterwards proceeded to lay off Gottenbitrgh, a Stvedish port, for six days ; and the ship insured might have gone into that port, if the captain had so thought fit, Sweden being then at war with Russia, but in amity with this kingdom. The ship sailed from off Gottenburgh the 30th of Novem- ber, 1807, with the Garnett and fleet for England, with the additional convoy of tiie Spitfire sloop of war. The ship JTilliam was last seen on the 3rd of December, 1807, distant ten leagues from the Naze of Norivay, Avhen the sea ran high, and not having been since heard of, she was admitted to be lost. Hostilities between this country and ^?/ss/« commenced on the \'d\\\oi Decem- ber, and between this country and Denmark in the preceding September. r *418 1 *Lord Ellenborotigh told the jury that this was a contract for ^ -J the voyage out, and that although a ship from necessity might be allowed to take a circuitous course, yet the ultimate point of destination must ever be the same. That such a necessity might, perhaps, even justify a return to England, if it could be proved satisfactorily that it was the intention of the parties to seize the first favourable opportunity of returning to Revel. No such evidence appears in the present case. Neither does it appear that the convoy compelled the return to England: for, although the first part of the case states tliat the return to Copenhagen roads was under the orders of convoy, the return to England is not averred to be under such compulsion ', I must, therefore, take this to be a voluntary abandonment of the voyage. At all events, even if there had been an intention to return to Revel, war intervened before such an {a) Sep, however, the case of Barker v. Blakes, 9 East, 283 ; and see the cases of Lub- bock V. Rowcroft, 5 Esq. 50. Parkin v. Tutiiio, 11 East, 22. P'orster v. Christie, II East, 25, where the Court held, that on the authority of Hadkinson v. Robinson, where a loss was attributable merely to the fear of a hostile embargo at the port of destination, this was not a loss Ity tlu; arrest or detention of kings. {b) 8itt. before Mich. 1 Camp. 454. TOTAL LOSSES AND ABANDONMENT. 233 intention could be executed, and that would put an end to the contract. The plaintiir was nonsuited. Anotlier action. Brown v. Vi^ne, (a) was brought in the Common Pleas on this policy, and Sir James Mansfield, then Chief Justice, concurred with Lord Ellenboroiigh ; and his judffinont was afterwards confirmed by the whole Court. And where a ship \vas insured to her last port of discharge, in the river Plata, and the master, hearing that Buenos Ayres, where he meant to discharge his cargo, was in the hands of the enemy, went to Monte Video, and began to discharge the cargo there ; this was hold to be her last port of dis- charge, and therefore the underwriters were not liable for a loss, after the ves- sel had been moored twenty-four hojirs. And in a case of Doyle v. Powell, {b) in which goods and freight were insured "at and from Liverpool to Monte Video and Buenos Jlyres, if open, or the ship's final port of discharge in the river Plata, with liberty to wait two months at Monte Video, if needful, at a premium of five guineas ^ ^^jg -, per *cent. to return two per cent, for risk, ending at Monte Video L on arrival," the ship arrived on the 2nd of August at Monte Jldeo, which was then blockaded bv an enemy's fleet, to prevent vessels passing to Buenos Jlyres. The l)lockade did not cease till the 4th of October. The vessel after- wards sailed for Buenos Ayres, and was lost. The Court held that the risk was at an end when the vessel had stayed more than two months at Monte Jldeo, and as the loss happened subsequently to that time, the underwriters were discharged. Mr. Justice Park, towards the conclusion of his chapter (c) on abandon- ment, says, that the efTect of it is necessarily apparent, namely, "that, when the assured claimed a total loss, he must cede or abandon whatever is saved or whatever may be recovered to the underwriter, and who, when the transfer is made to him, stands in the place of the assured, and thus, by the transfer, becoming entitled to all the benefit and advantage which the assured himself could have claimed if his property had been uninsured. But the very peculiar circumstances which in many cases occurred during the two last wars, have led to a variety of discussions upon this subject. Amongst others, the late Emperor (Paul) of Russia, liaving, in the month of November, 1800, laid an embargo on all British shipping then in the Russian ports, most of which, being then laden for their homeward voyage, he compelled to unload, and having again taken off' the embargo in May, 1801, and allowed the same cargo to be reloaded, and sent to England, a considerable question arose between the two sets of underwriters on ships and freight. The owners had often insured the ships with one set of underwriters, the freight with another; and m February, 1801, when the news of this embargo reached England, losses to a consider- able amount were paid, the assured abandoning the ships to the underwriters on ships, the freight to the underwriters on freight. But afterwards, when the embargo was taken off", when the sliips arrived, and the freights were earned and paid to the *owners, the question was, whether the abandon- p *4 ^"^ must be so deemed, *evcn though the assured should for -' some real or supposed advantage to themselves, elect to sell the OF AVERAGE LOSSES. 243 goods where they have been landed, instead of taking measures to transmit them to their original destination. Accordingly, in the case of Hunt v. Royal Ex- change Company^ («) the judgment of Lord EUenborongh contains a very important passage, wliich distinguishes it from the present case. He says, "if, indeed, the cargo has been of a perishable nature, this would not have been a case of retardation only, but of the destruction of the thing insured ;" and further, he says, "I cannot necessarily infer that the flour would be changed in quality and condition by the delay from November to April, so as to incur any material damage operating a destruction of the thing insured." And in the case of Jlnderson v. Wallace, (6) the goods consisted of copper which was wholly uninjured, and of iron which was partially damaged : the assured by their own agent had possession of them, the ship was capable of repair, and might have prosecuted the voyage, and did, in four weeks after the accident, sail upon another voyage ; upon which ground, combined with other circumstances, the Court held the loss 7iot to be total. But it is clear, from the judgment of the Court, that if by reason of the perils of the sea, the goods could never be sent to their destination, the loss would have been held to be total. In like manner, it will be found in other cases cited, that there has always existed one or more circumstances in combination with that of the goods existing in specie, to induce the judgment that the loss was not total : as in Glennie v. The Royal Exchange Company, (c) the rice had arrived at its port of destination, and though damaged, was delivered to the consignees, and in a saleable state as rice. In Thompson v. The Royal Exchange Company, {d) the tobacco and sugar, though damaged by the perils of the sea, were in the hands of the owner at Heligoland : and as stated by Lord Ellenborough, *(in his judgment,) might for any reason that appeared, have been p *4qo -\ forwarded to the port of their destination. In Anderson v. The L -J Royal Exchange Company, (a) the wheat was partly saved, was in the hands of the shipper at Waterford, was kiln-dried, and might have been forwarded, as tlie rest of the cargo was, after the same operation to its port of destination ; but the owner, after dealing with it as his own, abandoned it too late, even if he had a right to abandon it at all. In the case before us, the jury have found that the hides were so far damaged by a peril of the sea, that they never could have arrived in the form of hides ; by the process of fermentation and putre- faction which had commenced, a total destruction of them before their arrival at their port of destination, was as inevitable as if they had been cast into the sea, or consumed by fire. Their destruction not being consummated at the time they were taken out of the vessel, they became in that state a salvage for the benefit of the party who was to sustain the loss, and were accordingly sold ; and the facts of the loss and the sale were made known at the same time to the assured. Neither he nor the underwriters could at that time exercise any control over them, or by any interference alter the consequences. It appears to us, therefore, that this was not the case of what has been called a constructive loss, but of an absolute total loss of the goods : they could never arrive ; and at the same moment when the intelligence of the loss arrived, all speculation was at an end." We see from this part of the judgment in Roux v. Salvador, in what con- sists the essential difierence between a total and an average loss in the case of goods. It is the same with respect to the difference between the average or total loss of the ship. The ease of Cambridge v. Jlnderlon {b) is, as Lord Abinger (a) 5 M. & S. 47. (i) 2 M. & S. 240. (c) 2 M. & S. 371. (d) 16 East, 214. (a) 7 East, 38. {b) 2 B. & C. 697. 244 OF AVERAGE LOSSES. says in the same judgment, similar in all points to the case of Roux v. Salva- r *ziQQ 1 ^^'''*' ^^ °"^ relating to the goods, the other to the ship : and that L J case is *an express decision, that where the subject-matter insured has by a peril of the sea lost its form and species — where a ship, for example, has become a wreck or a mere congeries of planks, and has been bo7ia fide sold in that state for a sum of money, the assured may recover a total loss without any abandonment. So Chief Justice Tindal, in the recent case of Benson v. Chapman, [a) (which was referred to in a former part of this sec- tion) says — "It is unnecessary to cite authorities, to prove that where damage to the ship is so great, from the perils insured against, as that the owner cannot put her in a state of repair necessary for the pursuing the voyage insured, except at an expense greater than the value of the ship, he is not bound to incur that expense, but is at liberty to abandon and treat the loss as a total loss." But in the case of Doyle v. Dallas, tried before Lord Tenterden at Guildhall, on a policy of insurance on the ship Triton, averring a total loss by perils of the sea. The ship had been wrecked, and was sold by the owner, and soon afterwards got off by the purchaser, though at a great expense ; Lord Tenter- den, in summing up to the jury, said, "The only question is, whether this amounts to a total loss? The ship is not bodily and specifically lost; but cir- cumstances may have occurred, which, according to the law established in cases of marine insurance, are equivalent to a total loss. 1 think the circumstances in this case will have that effect, if, at the time of the sale, that measure, on the sound exercise of the best judgment appeared most beneficial to all parties. It is not enough that the owner acted honestly in the sale, and intended to do for the best, the underwriters are not liable unless he formed a correct judg- ment, that is to say, the best and soundest judgment which could be formed under the circumstances which then existed. Nothing less than this will make a total loss, while the ship continues in existence. If the ship could have come to England even in ballast, (certainly with any cargo) so that on her r *44.0 1 arrival *she would have been worth the money expended on her, L -^ she ought to have been repaired for the purpose. The loss of the voyage will not, in my opinion, make a constructive total loss of the ship. Some cases have been so decided ; but as the thing remained in specie, I do not think that it amounted to a total loss. The best thing for the underwriters must be done not merely for the owner, and as they indemnify only against the loss of the ship, the loss of the voyage would not injure them. Taking all the circumstances into your consideration, if you are of opinion that the plain- tiff, acting as he did, exercised a sound judgment as well for the benefit of the underwriters as for his own interest as owner, did, what at the time was best for all parties — your verdict will pass for the plaintiff — if otherwise, for the defendant." Verdict for the defendant. A motion was afterwards made for a new trial which was refused. After these observations with regard to average losses, and with the reference whicli I have made to. a few of the leading cases which draw the line of dis- tinction between them and total losses, either constructive requiring abandon- ment to the underwriters, or absolute total losses, Avhen the thing insured has actually lost its form and species which require no abandonment ; we will now confine our attention to the subject of average losses in particular, and, as the principles of law on this head are, as upon most other heads of marine insurance law, to be gathered from the words of that great Judge, Lord Mansfield, I shall at once refer the reader to the very important case of Lewis and another v. Jiucker, (b) fully treated of in a former part of this Treatise, (c) (a) 7 Scott's N. R. p. 641, and ante, p. 394. (t) 2 Burr. 11G7. (c) Ante, p. 363. OF AVERAGE LOSSES. 245 In a subsequent case of Ze Cras v. Hughes, (c) Lord Mansfield said, that the case of Lewis v. Rucker should be the rule in all similar cases, viz : wherever there was a specific descriptiou of casks or goods : but in Le Cras v. Hughes, the property which consisted in various goods taken *from an p j. . ,, -, enemy, was valued at the sum insured, and part was lost by the L J perils of the sea; consequendy the same rule could not be adopted, on account of the nature of the thing insured. The only mode was to go into an account of the whole value and take a proportion of that sum, as the amount of the goods lost. In the case of Dick and another v. Allen, (a) which was an action before Mr. J. Jhdler, upon a policy of insurance to recover an average loss upon goods, the learned Judge observed, that in such cases, whether the goods arrived at a good or bad market, was immaterial, for the true way of estimating the loss, was to take them at the fair invoice price. And in Thelluson v. Bewick, (b) it was held by Lord Kenyan, that in a policy of insurance the underwriter does not insure against any loss that may arise from the difference of the exchange. In Jlmery v. Rodgers, (c) which was an insurance on the ship Dart from St. Kitts to London, on which the defendant had underwritten 200/., the plaintifl' had written to his agent in I^ondon to effect a policy on ship and cargo, calcu- lating the ship at 1,500/. of that sum. No goods were ever loaden on board. Lord Kemjon, though he first doubted, afterwards adopted the rule which the special jury assured him was established at IJoyd''s Coffee-house for setding losses of this kind, namely, that as the policy never attached, the assured was entided to recover such a proportion of the sum which die defendant had under- written, as the property on which the policy attached bore to the whole. Mr. Justice Park observes, ((/) "that as clearness and precision are neces- sary upon all subjects, and more especially upon this, that it is to be borne in mind, that when we speak of the underwriter being liable to pay, whether for total or average losses, they are liable only in proportion to the p ^aao "i sums *which they have underwritten. Thus if a man underwrite L -J 100/. upon property valued at 500/., and a total loss happen, he shall pay 100/., that being the amount of his subscription: and if only an average loss amounting to 60/. or 70/. per cent., then he shall pay only 60/. or 70/., being his proportion of the loss. The learned Judge has left this passage widiout the qualification which more recent experience should have suggested; he was aware of the case of Ze Chcminant v. Pearson, [a) for it appears in the last edition by him in a note at page 49, but it ought to have been referred to at the part of his Treatise from which I have copied his general observations of the payments to which die underwriter's liabdities are limited. However, dismissing this remark, I must refer to the subject, to shew that those observations of the learned author must be taken now with several grains of allowance. The liability of the under- writer is not restricted to the single amount of his subscription, but he may be subject either to several average losses, or to an average and total loss, or to money expended (in the words of the policy which form part of the head of this section) "in and about the defence, safeguard, and recovery of the ship," to a nuich greater amount than his subscription, (b) I shall first refer to the case I have just mentioned, and afterwards to some other authorities. (c) B. R. East, 22 Geo. 3. Park Ins. p. 233. (a) At Guild, after Mich. Term, 1785. Park Ins. 226. (b) Sit. after Mich. 34 Geo. 3, 1 Esp. 77. (c) 1 Esp. 207. Id) Park Ins. p. 221. (a) 4 Taunt. 367. (6) See also per Lord Abinger, in Brooks v. M'Donnell, 1 Y. «fc C. 515. 246 OF AVERAGE LOSSES. In that case, which was on a policy of insurance on a ship, "at and from Jersey to a port or ports in Norway,'''' the first count of the declaration averred that during the voyage the ship, by force of the winds and the waves, and by the perils of the sea, was damaged to the amount of 373/. 13s. lOd, and that thereupon the assured, their factors, servants, and assigns, did sue, labour, and travel for, in and about the defence, safeguard, and recovery of the ship, and thereby incurred charges and expenses, to wit, to the amount of 373/. 13s. lOrf. ', and averred that the proportion contribu table by the defendant, according r *44^ 1 ^^ ^^^^ ^^^^ ^'^^ amount of *his subscription, amounted to 12/. 9s. ; L . J and that afterwards the vessel sailed from Jersey, on the voyage insured," and during the voyage was captured and wholly lost, by reason whereof the defendant became liable to pay the plaintiff 312/, 9s., according to the effect of his policy. The second count proceeded on the total loss only ; and there were also the common money counts. The fact was, that the vessel had been injured by a gale of wind while lying in the port of Jersey, previous to her voy- age, and had sustained the average loss, which was admitted and was repaired by the plaintiff; afterwards the vessel was captured. The question upon this part of the case was, whether there was any legal objection to the plaintiff's recovering an average loss arising in the former part of the voyage, and for a total loss afterwards. Upon this point C. J. Mansfield said, "a policy of insurance is 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 expenses have been recovered as an average loss, without making any distinction, whether it was recoverable as an average loss from damage repaired, or within the words of the permission to "sue, labour, travel," &c., and as no such distinction has been made, we find it safer to adhere to the common practice, which has obtained, and to call it all average damage." The plaintiff, therefore, recovered both sums. But as we must never lose sight of the main principle of law, that the assured upon a contract of indemnity is not to recover for what he has not in fact been actually damnified, a most important distinction is, in this place, to be drawn between a case of the above description, and one in which, bv the intervention of subsequent circumstances, the previous deterioration of the' sub- ject-matter is ultimately a matter of perfect indifference to the assured's inter- ests. And this is the great principle contained in the case of lAvie v. Janson, which was referred to in a former section, for the position " causa proxima r *444 1 ^^^'^ remota spedatur/^ (a) In that case the *sliip, which was ^ ■ -* "warranted free from American condemnation," was driven on shore in the night, where she received a partial damage, but was seized the next day, and condemned by the American government; and the Court of King's Bench held, that as ihere was a total loss excepted out of the policy, the assured could not recover for the previous average loss, which in the event became wholly immaterial to the assured. Lord Ellenborough, C. J., said, "considering tlie deterioration of the ship and cargo as to the extent of what is referable to the head of sea-damage, we think we may lay it down as a rule, that where the property deteriorated is afterwards totally lost to the assured, and the previous deterioration becomes ultimately a matter of perfect indifl'er- cnce to his interests, he cannot make it the ground of a claim upon the under- writers. The object of a policy is indemnity to tlie assured ; and he can have no claim to indemnity where there is ultimately no damage to him from any peril insured against. If the property, whether damaged or undamaged, would have been equally taken away from him, and the whole loss would have fallen upon him had the property been ever so entire, how can he be said to have been injured by its having been antecedently damaged?" («) 12 East, 648. Ante, p. 271. OF AVERAGE LOSSES. 247 In this case we must observe, that the accident which occasioned the average loss, and tlie cause of tlie total loss, formed parts of one continued transaction, and that there was no endeavour made by the assured, or expense incurred by them in repairing it, between tlie interval of the average and total loss. His Lordship goes on to say, "There may be cases in which, though a prior damage be followed by a total loss, the assureil may, nevertheless, have rights or claims in respect of that prior loss, which may not be extinguished by the subsequent total loss. Actual disbursements for repairs in fact made, in con- sequence of injuries by perils of the seas prior to the happening of the total loss, are of this description ; indeed, they are more properly to be considered as covered by that autliority, with which the assured is generally invested by the policy of 'suing, labouring, and travailing,' &.C., *in which p ^^^^ -■ case the amount of such disbursem.ents might move properly be L recovered as money paid for the underwriter, under the direction and allowance of this provision in the policy, than to a substantive average loss to be added cumulatively to the total loss which is afterwards incurred in consequence of sea risks." This subject was mentioned, and the cases, (which I have just considered) referred to, in a very important and recent case of Stewart v. Steele, (a) I shall state the case the more fully on account of its general applicability to the subject of this section. This was an action on a policy of insurance "for twelve calendar months, commencing the 1st 3Iay, 1835,'^and ending 30th April, 1836, both days inclu- sive, in port or at sea, in all places, at all times, and on all services, upon any kind of goods and merchandises, and also upon the body, tackle, apparel, ord- nance, munition, artillery, boat, and other furniture of and in the good ship or vessel called the Sherlm'rne, valued at 8,000/." The declaration, after setting out the policy and averring the plaintift"'s interest in the ship, stated that on the 1st of 71/t/^,"l835, the said ship was in safety in harbour at Bombay, in the East Indies ; that afterwards, and before the 30th April, 1836, to wit, on the 20th Avgnst, 1835, whilst the said ship was protected by the said policy, the said ship was, by the perils of the sea and by stormy and tempestuous weather, and by the violence of the winds and waves, greatly strained, bulged, broken, and otherwise damaged in her body, rudder, Ijowsprit, irons, and other parts, whereby it became necessary to repair the damage done to the said ship as aforesaid ; that after such damage had arisen as aforesaid, and in consequence thereof, the plaintiff, by himself and servants and agents, to wit, on the day and year last aforesaid, did labour for, in, and about the safeguard, safety, and preservation of the said ship or vessel, and in so doing, and in and about the necessary repair of the said ship, by *rea3on of the damages so by p ^^^g -■ him sustained as aforesaid, did necessarily lay out and expend a •- larcre sum of money, to wit, the sum of 1,000/., whereby the defendant, according to the terms of the said policy, and of his said promise and imder- taking, then became liable to pay, and ought to have paid the plaintiff 150/., being the rateable proportion of the expense aforesaid, which the defendant ought to have paid and contributed in respect of the insurance aforesaid, whereof the defendant then had notice ; and that afterwards, and during the continuance of the risk, and whilst the said ship in the said policy of insurance mentioned was protected by the said policy, to wit, on the 10th of October, 1835, the ship in the said policy mentioned, by stormy weather, &c., became and was wholly lost to the plaintiff, of which premises he, the defendant had notice. There was also a count for money had and received, and a count upon an account stated. (a) 5 Scott's N. R. 927. 248 OF AVERAGE LOSSES. The defendant first as to so much of the first count as stated, &c. (following the allegation of the count) the defendant saith the plaintiff ought not further to maintain his action, because the defendant brings into Court the sum of 18/. 18s. ready to be paid to the plaintiff, and the defendant saith the plaintiff hath not sustained damages to a greater amount than the said sum of 18/. 18*., in respect of the said causes of action in the introductory part of that plea men- tioned. Sic. Secondly, he pleaded to so much of the first count as stated, that the said ship was lost by storms, &c. , that the said ship was not lost by storms, winds, &c., concluding to the country. Thirdly, to the two last counts non assumpsit. The cause was tried before T"indal, C. J., at the Sittings at Guildhall, after Hil. Term, 1841. The Sherburne left Calcutta on the 11th /?ec are extremely large ; and perhaps the true rule upon the subject may be better collected from the two following more modem cases : — Case on a policy of insurance on ship and goods from LjOndnn to Shelborne, m Nova Scotia, [b) The policy had been adjusted by the defendant at 50/. per cent., and it was contended that he was now bound by that adjustment. On the other hand, it was argued, that the adjustment was not binding ; and that, if it were, it ought to have been declared upon specially. Lord Kenyon said that he did not think it necessary to declare on the adjust- ment specially that it was prima facie evidence against the defendant ; but, if there had been any *misconception of the law or fact upon which ^ *4oq "i it had been made, the underwriter was not absolutely concluded by L J it. This turned out to be the case j and there was a verdict for the defendant. So in a still later case of De Garron v. Galbraith, (c) the plaintiff went to trial, having no other evidence to produce but the adjustment : and the wit- nesses who proved it swore, that doubts soon after they had signed it arose in the minds of the underwriters, and they refused to pay ; upon which Lord Kenyon said, that under these circumstances the plaintiff must go into other evidence, which not being prepared to do, he was nonsuited. In the following Term a motion was made to set aside the nonsuit, upon the ground that an adjustment was prima facie evidence of the whole case, and threw tlie onus probandi upon the underwriter, and that it amounted to no more than proof of the defendant's subscription to the policy. Lord Kenyon. — "I admit the adjustment to be evidence in the cause to a certain extent ; but I thought at the trial, and still think, that when the same witness who proved the signature of the defendant to the adjustment said, that doubts, soon after the adjustment took place, arose in the minds of the under- writers as to the honesty of the transaction, and they called for further proof, the plaintiff should have produced other evidence ; and that shutting the door against inquiry after an adjustment, would be putting a stop to candour and fair dealing amongst the underwriters." The rule was refused. (rt) Beawes Lex. Merc. 308. (6) Rogers v. Maylor, sit. after Trin. 1790. Park Ins. p. 267. (c) Sit. after 'J'rin. 1795. Parkins. 267. 268 OF AVERAGE LOSSES. Mr. J. Park says here: (a) — "It has been lamented that this case has not been reported in the Term Reports, it being presumed that an accurate state- ment of the evidence would have clearly shown that the decision of the learned Judge at Nisi Prius, and afterwards of the Court of King's Bench, was cor- r *4S4. "1 ^^^^^y I'lgli^'j that justice was done; and that *under the particular L -J circumstances of the case it might have been a very proper excep- tion to the rule as laid down by Lord Chief Justice Lee. And then the learned author goes on to show that, in his opinion, the case of Be Garron v. Gal- braith is not reconcileable with Rogers v. Maylor : nor with that candour and fairness which ought to preside in the litigation of all commercial questions, (b) "For the omission in tlie Term Reports 1 am not answerable ; but, as I was counsel in the cause of De Garron v. Galbruith., I can vouch for the accuracy of the statement; and, being a cnse decided by the Court on motion, I confess it seems to me entitled to as much consideration as a case decided by a single Judge, however eminent that Judge may have been. Indeed, I do not see any great difllculty in reconciling the doctrine contained in the latter with that of Rogers v. Maylor and Christian v. Combe. They all agree that the effect of the adjustment is to throw the onus probandi upon the underwriter; and if, immediately after signing, doubts arise about the honesty of the transaction, and those doubts are instantly communicated, the assured ought not, with a knowledge of this, and that the same witness who proves the adjustment and can also prove tlie communication of the doubts, to proceed to trial upon the adjustment only, as he did in De Garron v. Galbraith; for then he has had the notice which the learned author alluded to thinks ought to be given, that the fairness of the transaction would be disputed. The only objection I ever made to the case of Hogg v. Goultlney is, that Lord Chief Justice Lee lays down tlie rule too generally, being stated without any exception, whereas the rule does admit of exceptions. But nobody ever presimied to find fault with that decision, where it probably was not necessary to state the exceptions. But still the comparison without an exception might mislead ; for a promissory note, the signature being proved, only shifts the burden of proof of fraud on r *4S^ 1 ^^^ defendant. I, therefore, still think the *rule respecting adjust- L J menls is to be better collected from the modern cases. And, in addition to the cases heretofore decided upon the subject, I have now to bring forward the opinion of Lord Ellenboroiigh, who has, as I conceive, in two very modern cases confirmed the notion entertained by Lord Kenyon and the Court of King's Bench in his time. In Hibbert v. Champion, (c) the ship Ganges had sailed from the Downs^ under convoy of the Fury sloop of war, on the 12th December., 1805, for Portsmouth., and before her arrival there, was captured by a French privateer. The defence was, that a letter from the captain, dated .5lh December., stating that he was to sail with the Fun/, though received on the Gtii December., had not been communicated to the underwriter before effecting the policy, which was not done till the 12th, the broker having said only that the ship had sailed about three weeks. To this it was said, that the defendant, after reading the letter in question, together with several others written subsequently, had on the 12th March., 1806, adjusted the policy, on which adjustment the plaintiff relied, and compared it to the case of an actual payment. But Lord Ellenborough said — "If the money has been actually paid, it cannot be recovered back, without proof of fraud ; ((/) but a promise to pay will not, in general, be binding, unless founded on a previous liability. What is an (a) 1 Park Ins 268. (6) Marshall, 3rd edit. 645. (c) 1 Camp. 13i. (rf) '^^'^ ^^^^3 v. Lumby, 2 East, 469. OF AVKRACiE LOSSES. 269 adjustment? It is an admission, on the supposition of llie truth of certain facts stated. that the assured are entitled to recover on the policy. Perhaps, if pro- perly stamped, it mi«ilu be declared on as a promissory instrument. II«;re it is a mere admission, and there was no consideration for the promise it is supposed to prove. An underwriter must make a stronj^ case, after admittinjj his lia- bility : but until he has paid the money, he is at lilicrty to avail himself of any defence, which the facts ar the law of the case will furnish." It is quite evi- dent, that his Lordship here considered an adjustment as shifting the burthen of proof from the assured to the underwriter : but *by no means r- ^^„_ -, shutting out the latter from any ground of defence, which either ^ -J the law or the facts would sui)ply. In the particular case the jury thought the letter relied upon, would have made no difference ; but it was submitted to their consideration by Lord Ellenborow^h: and the plaintiff had a verdict. («) The other case was that of Shcppard v. Chewier, {b) where the })laintiff in an action on a policy, from Liverpool to Provence, with or without letters of marque, had ffiven in evidence an adjustment on the policy signed by the defendant, and proved that, previously to its being signed, an account had been posted up at Lloi/cr.s which the defendant must have seen, stating that the ship on her way out had chased everything that she saw, and had at last been cap- tured in the Gut of Gibraltar, through the cowardice and mismanagement of the master. The defendant, when he signed the adjustment, said, it was not likely the ship should have been lost by cowardice, when the captain was killed in the eng;igement. On the part of the defendant it was proved, that the ship, from the time of her sailing from Liverpool, had been in the constant habit of cruiziuff for prizes : and, therefore, it was said to be a deviation. On the other side it was contended, that as no fraud was practised upon the defendant, when he signed the adjustment, and as the notice had informed him of the supposed deviation, it was to be considered as conclusive against him. But Lord Ellenboroiigh said, the adjustment was prima facie, evidence against the defendant : but it certainly did not bind him. unless there was a full disclo- sure of llie circumstances of the case: unless they were all blazoned to him as they really existed, (c) Therefore if ihe jury should think that the defendant, by reading the notice stuck up at LJoi/d's; had his attention drawn only to the manner in which the ship was captured, and was not roused lo tlie previous deviation with *which he afterwards became acquainted, his lia- ^ *407 -i bility to the assured would be discharged, notwithstanding the ad- •- J justment His remark, when he signed the adjustment, seems to show, that lie had then only considered the conduct of the master at the moment of the capture ; and the expression of the ship having chased everything, did not of necessity imply a deviation, since from carrying a letter of marque she might be considered as at liberty to chase, so that she continued in the line of the voyage." An adjustment and payment shall not prevent a mistake being set right, if there be a mistake in fact. But where there is a full knowledge of the circum- stances, and the assured claim and receive a premium due upon the arrival of a ship (which he has no right to do, till the risk is ended, and the settlement of the whole made) he cannot, without an express stipulation, resort a 1 ^^'^^^ J"^* ^^^^^ *^'^^* ^y i^^ *terms the underwriter exempts himself L "J from any liability to average loss in articles of a certain description, particularly specified in the memorandum : with regard to others, also specified, he exempts himself, unless the average loss amounts to three or five per cent., with this general condition overriding the memorandum, "unless the average be general, or unless the ship be stranded." The latter part of this condition has been treated of in the preceding section : it now becomes our object to inquire what a "general average" is, and what laws and rules, founded upon law, and the practice, custom, and usage of merchants, for enforcing the bene- fits and advantages for which it was in the earliest times founded, and its prin- ciples regulated and established. The late Lord Tenterden, in his Treatise on Shipping, which is so justly celebrated, thus commences his chapter upon this important subject. I shall not hesitate a moment in availing myself of that learned writer and Judge's remarks on that commencement, on the term "general average." He says, "Having thus treated of the respective duties of the owner and merchant, I now proceed to the consideration of a subject \vhich is equally a duty of the one and the other, namely, the general contribution that is to be made by all parlies toward a loss sustained by some for the benefit of all. This contribu- tion is sometimes called by the name of ' general average,' to distinguish it from special or particular average, a very incorrect expression, used to denote every kind of partial loss or damage happening either to the ship or cargo from any cause whatever; (a) and sometimes by the name of 'gross average,' to distin- guish it from customary average, mentioned in the bill of lading, which latter species is sometimes also called 'petty average.' The principle of this general contribution is known to be derived from the ancient law of RJiodes, being r *A.^'\ "1 ^'^'^P''^^ '"'^^ ^'^^ Digesl. ofJu-s/inian, *with an express recognition L ' J of its true origin. The wisdom and equity of the rule will do honor to the memory of the state from whose code it has been derived, as long (a) If tlic learned author applies the term "incorrect expression" to its use in marine insurance treatises or actions of policies of insurance, I cannot acquiesce in his rcniaxk ; for, it is the word used in the policy where the word partial never appears. GENERAL AVERAGE. 273 as marilimo commerce shall endure. The principle of the rule has hecn adopted by all commercial nations, but there is no principle of maritime law that has been followed l)y more variations in practice. The modern ordinances of the several continental states of Europe diner from each other in many particulars relating to this general contribution, and the French ordinance establishes a different mode of contribution in dilicrent cases. An enumeration of these varieties would furnish little entertainment or instruction to an Entrlish reader; discordant rules rather serve to perplex the choice Uian to guide the judgment. The determination of Engliah Courts of Justice, furnish less of authority on this subject than on any other branch of maritime law, there being few reported cases ol' questions either between the parties liabh; to contribution in the first instance, or between a party so liable and an assurer, from whom indemnity has been sought. The work of il/t7gc??.v contains a variety of cases of adjust- ment of average by consuls and Courts abroad, and by merchants at home, detailed with the tedious forms of the notarial office, but accompanied by some very judicious remarks. Much useful information upon this subject is to be found in Mr. rark\^ Si/stem of iMarine Insurances, and also in the publica- tion by Serjeant Marshall, on the same subject." I shall of course myself, in detailing the law on this subject, have occasion to follow not only the guides whi(;h this learned author pointed out, but in a great measure to derive the mat- ter which it is my business to give as fully and correctly as I am able, from the treatise of the learned author himself. 'I'he first case which appears to have been argued in our Courts of Justice, on the subject of general contribution, is the case of JVilson and another v. Smith, [a) tried before *Lord Alansfield, at GiuldhaU, on 15tli p .. ^^ -. Februari/, 1T64 : and afterwards argued in the same year, B. K., >- "* -^ 4 (Jeo. 8, 'I'rinity 'I'erm. And I may add, that having mentioned the guides on this subject, we may expect to derive the greatest assistance from that learned Judge, whose woi'ds in many instances, 1 have had the advantage of copying into this Treatise, on the principles of the law of marine insurance. It was an action on a j)olicy of insurance, brougiit for tlie recovery of 56/. 19s. 8//. per cent,, being the damage received by the cargo of wheat on board the Bosraivcn insured at and from Lancaster to Rotterdam. Tlie policy was in the ordinary form. And the assurers were to be free from average under 3/. per cent., unless general, or the ship shall be stranded. The policy was thus underwritten: — "N. 13. corn and fish are warranted free from average, uidess general, or the ship be stranded. Sugar, tobacco, flax, hides, and skins, are warranted free from average under 5/. per cent. ; and other goods free from average under 3/. per cent., unless general, or the ship be stranded." On her voyage to Rotterdam the vessel met with a violent storm, and was by and through the force of the winds and stormy weather, obliged to cut awav and leave her cable and anchor for the safety of the ship and cargo, and was also greaUy damaged, and ol)liged to run to die first port [Liverpool) to refit, and that the expense of refitting amounted to 38/. 15s. per cent. 'I'he hatclics were not opened at LAverpool, but she sailed and reached Rotterdam and there landed her cargo. 'J'hat upon unloading the wheat, it appeared that it had received damage from the storm to the amount of 56/. \9s. Hd. pes cent. The single question was, (upon the true construction and meaning of the words "free from average unless general, or the ship be stranded,") whether the plaintiffs can, under the circumstances of th's case, recover in this action for the damage of 50/. 19s. Sd. per cent, (the other matter not being disputed.) There were two arguments at the Bar, dia first by Dunning for the plaintiffs, (a) Keportcd in 3 Burr. p. 1550, and Black. Rep. p. 507. 274 GENERAL AVERAGE. and Morton for the underwriters. They quoted no common law cases on r *4qf^ 1 either side. Mr. Dunning^ s ' arj^ument tended in g-eneral to sliew L J that these words amounted to a condition, which condition would render it free from average, unless in two events, viz : — a general average, or a stranding of the ship : hut if either of these two events happen, then to be liable to average. Mr. Dunning said, "that this clause now in question was first introduced about the year 1749, before which time, he said, assurers were liable to every injury that happened to the goods insured. This clause or memorandum was introduced to deliver the assurers from small averages, and v/as thought to have been a better method of attaining that end, than adapting the premium to the nature of the commodity, as it might happen to be more or less liable to perish or suffer: which method would have made the policy too complicated; and ■which the Dutch had first tried, and afterwards altered." He argued that there was here a general average, which consisted in a part being destroyed for the sake of saving the whole. Mr. Morton argued that the meaning and intention of the policy, that the assurers should not be answerable for any average loss or damage to the goods insured. A general average, he said, was a o-eneral contribution of the owners of tlie goods on board (where part is destroyed to preserve the whole) in proportion to their concern. If another man's goods had been thrown overboard to save the whole cargo, the owners of the wheat must then have been liable to general average in j)roportion to the value of their wheat. If the ship had been stranded, the assured might have abandoned. Upon a general average, the assurer stands in the place of the owner of the goods : and upon a total loss is entitled to what may be saved. A o-eneral average is a contribution by non-sufferers, towards the loss of those who have suffered for the preservation of the whole. But there is nothing in the present case that can render the assurers liable to an average of this wlieat insured by them. On the second argument Sir Fletcher Norton, (A.- G.) for the plaintiffs, and Serjeant Burland for the defendant. r */<0R n '*^''' Fletcher Norton mentioned a case before Lord C. .T. Ryder, L J «1754, between Cantillon and The London JisHurance Company, upon an insurance on corn, with such a clause as this ; and the ship being stranded, the plaintiff recovered an average loss of about 80/. per cent. For Lord C. J. Byder and a special jury looked upon this as a condition : and that by the ship's being stranded, the assured was let in to claim his whole average loss. After which determination, that company (he said) had altered that clause ill their insurances, by omitting the words "or the ship be stranded." [a) Serjeant Burland argued, that the insurer was to pay no average, unless in the case of a general calamity. It is a general discharge from all average, except in the two cases particularly specified, (which two cases are quite dis- tinct and unconnected.) The general contribution and particular average have no connection with each other. The case was ordered to stand over for the opinion of the Court : and on the lOlh July 1764, Lord Mansfield delivered that opinion to this effect: — "Policies of assurance, 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.' [b) It is used to signify (f/) In later limes they have since restored it. (bS There has been a great deal of nonsense talked in the books about the confused form of the policy, and the difficulty of understanding the term "average." GENERAL AVERAGE. 275 a contribiUioii to a general (c) loss : and it is also used to signify a particular partial loss. Sir Ilcnri/ Spehnan, in his Glossary, under the word "avergium," says, — "It is detrimcnturn quod veheiulis mercibus acfidit: ut (luxio vini frumenti corruptio, nierchnn in tempestatibus ejectio: quibus adduntur vertura; sumptus, et nccessari;c aliir inipensa;. De averagiis quo nierc.ium e navil)us projectarum, distribuendis, veins habetur statutum, non impressum eujus exemplar npud me exlat." {\jonl Mansfield ol)servod that he had never met with that statute.) 'The word "unless," means the same as "except," and is not p ..^g^ -, to be construed as a condition in the sense that the counsel for the L J plaintiffs would have it. The words "free from average unless general," can never mean to leave the assurers liable to any particular average. It is clear that the plaintifis ought not to recover, and the judgment ought to be for the defendant." Ma gens (a) says, "that whatever the mast(!r, with the advice of his officers and sailors, deliberately resolves to do for the preservation of the whole, in cutting away masts or cables, or in throwing goods overboard in order to lighten the ship, which is meant by the term jettison, is in all places permitted to be brought into a general or gross average ; in which all who are concerned in the ship, freight, and cargo, are to bear an equal, or proportional part of the loss which was so incurred for the common welfare ; and it must be made good by the assurers in such proportions as they have underwritten." In the works of wiiters upon commercial aflairs, we very often meet with the word "contribution," also signifying the thing thus described; and in a marine sense "average" and "contribution" are synonymous terms. (J?) In treating of the subject, I shall follow the usual division of it into three heads, viz : — I. The cases in which a general contribution is to be made. II. The articles which are to contribute. III. The mode in which the contribution is to be made. I. The rule of the Rhodian laws is this: — "If goods are thrown overboard, in order to lighten a ship, the loss incurred for the sake of all shall be made o-ood by the contribution of all. (c) And it was resolved in Mouse's case, {d) in an action brought for a casket, by Mouse, and a hundred *and ^ ^^gg -, thirteen pounds taken and carried away. The case was that the L ferryman of Gravesend took forty-seven passengers into his barge, and Mouse was one of them ; and the barge being on the water, a great tempest arose, and a strong wind, so tliat the barge and all the passengers were in danger of being drowned, if a liogshead of wine and oilier ponderous things had not been thrown out for the safeguard of the lives of the men. It was resolved, per totam Curiam, that, in case of necessity, for the saving of the lives of the passen- o-ers, it was lawful for the defendant, being a passenger, to cast tlie casket of the plaintilT out of the barge, with the other things in it; for '■^quod quis ob lutelani corporis sui feceris sine id fecisse videtur," to which the defendant pleads all this special matter; and the plaintiff replies, "rfe injuria sua pro- pria absque tali causa.'" And this issue was tried : and it was proved directly that, if the things had not been cast out of the barge, the passengers had been drowned ; and that, ^'■levandi causa,''' they were ejected, some by one passen- (c) But never without the word "general" applied to it. (rt) 55. {li) Beawes. (c) Dig. 2, 1. Lege Rhodia cavctur, ut si levandffi navis gratia jactus mercium factm sit, omnium contribulione sarciatur, quod pro omnibus datum est. (ji) 12 Co. 63; mentioned also in Bird v. Astock, 2 Bulst. 280. 276 GENERAL AVERAGE. ger, some by anotlier. And upon this the plaintifF was nonsuited. It was also resolved that, although the ferryman surcharge the barge, yet for safely of the lives of passengers in such a time and accident of necessity, it is luwiiil for a passenger to cast the things out of the barge : and the owners shall have their remedy upon the surcharge of the ferryman, for the fault was wilii him in the surcharge. But if no surcharge were, but the danger accrued only by the act of God, as by tempest, no default Ijcing in the ferryman, every one ought to bear his loss for the safeguard and life of a man; for '•'■interest rel publicx quod homines conserventur" 8 Ed. 4, 23, &;c. ; 12 II. 8, 15; 28 H. 8; Dyer, 36, So if a tempest arise in the sea. '■'■levundi navis,''^ and for the salvation of the lives of men it may be lawful for passengers to cast over the merchandises, &c. Beawes is of opinion that, in order to make the act of throwing the goods overboard le^al, three thinors must concur : — r *4QQ 1 '^'^' ^'^'^^'^ ^^ ^'^ condemned to destruction be in ^consequence of L -"a deliberate and voluntary consultation held between the master and men. 2ndly, That the ship be in distress, and that sacrificing a part be necessary in order to preserve the rest. 3rdly, That the saving of the ship and cargo be actually owing to the means used with that sole view. ]Mr. J. Park observes, "that the second point of these three propositions is alone necessary," [a) and therefore, in a case of Buffer v. Tflfdman, (b) where goods were thrown overboard to prevent them falling into the hands of the enemy, this, though jettison, in the general meaning of the term, was held not to be the subject of a general average. Previous deliberation, if there be time to deliberate, and a due choice of the heaviest and most cumbersome articles, may be proof of the necessity and pro- priety of the act. But they are not the only, and ought not to be considered as the essential proofs. So decided in the case of Birkfey and of Iters v. P res- grave, (c) Indeed, in such a case, as in many others, too close a compliance with form at a period of supposed danger, has very justly excited a suspicion of fraud, (rf) It appears, also, by the laws of irisbuy, (e) that in an emergency of such a nature as to justify lightening the ship, it was necessary to consult, first, the owners of the goods, or supercargo; but, if they would not consent, the mer- chandise might, notwithstanding their refusal, be ejected, if it appeared neces- sary to the rest of the people on board : a regulation evidently founded in necessity, to prevent the sordid individual from obstructing a measure so essen- tial to the general safely, (f) If the ship ride out the storm, and arrive in safety at the port of destination, the captain must make regular protests, and must swear — in which oath some r *500 1 ^' ^'^^ ^^^^"^ must join — that "the goods were thrown overboard for L J no other cause but for the safety of the ship, (o) In all countries, however, and in all cases, it is justly required of the master that he draw up an account of the jettison, and verify the same by the oath of himself or some of his crew, as soon as possible after his arrival at any port, (a) Park Ins. 279. (b) 3 B. & A. 398. (c) 1 East, 220. See also this case for instances of what comes under the "head" of "general average." (d) See Abbott on Shiji. Cth edit. 427; 1 Eraerison, torn. 1, p. 605; Consolato del Mare, c. 47, 48, 49, (e) Art. 20. (/) Laws of Oleron, art. 8. (a) Beawes, 148 ; Molloy, b. 2, c. 6, s, 2, GENERAL AVERAGR. 277 that there may be no opportunity to purloin goods, and then pretend they were cast over in the hour of' danijer. (6) It is evident, that from one of the rules above stated, that there can be no contribution without the ejection of some and the saving of others ; but it is not always necessary for the purposes of contribution that the ship should arrive at the port of its destination. If the jettison does not save the ship, but she perish in the storm, there shall be no contribution of such goods as happen to be saved, because the object for which the goods were thrown over was not attained. But if the ship be once preserved by such means, and continuing her course should afterwards be lost, the property saved from the second acci- dent shall contribute to the loss sustained by those whose goods were thrown out upon the former occasion, (c) 3Jagens^ in one place, expresses his opinion contrary to the rules contained in the above ordinances ; (J) in the next paragraph he admits that the goods saved ought to contribute, (e) From the rule established by the Rhodians^ various corollaries have been deduced. Thus, if in the act of jettison, or in order to accomplish it, or in consequence of it, other goods in the ship are broken, damaged, or destroyed, the value of these must be included in the general contribution ; and damage done to the ship, by cutting holes to effect jettison, or to let out the water. (/) *So if to avoid an impending danger, or to repair the damage ^ ^^^^ -. occasioned by a storm, («) the ship be compelled to take refuge in L a port to which it was not destined, and into which it cannot enter without taking out a part of the cargo, and the part taken out to lighten the vessel on this occasion happen to be lost in the barges employed to convey them ashore ; this loss being also occasioned by the removal of the goods for the general benefit, must be repaid by a general contribution ; but, if after the removal of the goods for such a purpose, the ship, with the remaining part of the cargo, should unfortunately perish, and the goods in the barges be saved, the proprie- tors of the latter shall not contribute to the loss of the others, because the saving thereby is not owing to that loss. So if, upon the expectation of an hostile attack, part of the cargo be taken out and sent away and saved, and the ship* with the remainder of the cargo, fall into the hands of the enemy, the part saved shall not contribute to make good the loss. (6) Mr. J. Lawrence, in Birkley v. Presgrave, (c) says, "All loss which arises in consequence of extraordinary sacrifices or expenses incurred for the preser- vation of the ship and cargo, come within the description of general average." The damage sustained in defending a ship from an enemy or pirate, such as the expense of curing and attending upon ofiicers or mariners wounded, does not come under the head of general average, although some writers upon this subject maintain the contrary. {(I) But Emerigon (c) and others maintain the contrary ; and Mr. J. Park says, though in former ediuons of his work, on the authority of the above-raeiitioned writers, he had stated that such came (h) Abbott on Ship. 428; Stevens on Average, 29. (c) Ord. Louis XIV. tit. Contribution, art. l.'j, 16; Ord. Hamfa. 2 Mag. 340; Orel. Kotterdam, 2 Mag. 98. (rf) 1 Mag. 56. (e) 1 Mag. 57. See Park Ins. 281. (/) Beavves, 148; Stevens, 12. (a) In the Dig. 2, 4, and the Guidon, c. 5, art. 28. See Beawes, 165; 2 Valin, 167 Abbott on Ship. p. 428, 6th edit. (i) Sheppard v. Wright, 1 Show. P. C. 18. (c) 1 East, p. 228. (d) 1 Mag. 64 ; Valin, liv. 3, tit. 7 ; Le Guidon, ch. 5, art. 4. (e) Ch. 12, p. 41, and note 8. 278 GENERAL AVERAGE. under the head of general average, {/) in his last edition he says, "that it is r *Pin9 1 ^"i'^ clear that in point of practice these expenses have *never L J been placed to the account of a general average: and since the time when the earlier editions were published, the subject underwent considerable discussion in the case of Taylor v. Curtis, (a) in the Court of Common Pleas, where all the authorities quoted on either side were referred to by the Judges ; and after time taken to deliberate, their unanimous judgment was pronounced by Lord Chief Justice Gibbs, that neither the expense of repairing a ship, injured by successfully resisting and beating off a privateer, thus reaching her desired port in safety, nor of curing the wounds of the sailors sustained in the action, nor the ammunition expended in the engagement, was the subject of general average." Lord Chief Justice Gibbs. — "The doctrine of general average has its origin in the Rliodian law de jaclu '• omnium contributione .furciaiur, quod pro omnibus datum est.'' The different states oi Europe have made different regu- lations on this subject, all of them professing to follow the Rhodian law, but often differing from each other ; and the foreign jurists have made very different comments on that law. In this eountiy, there are no local regulations on this subject; we should, therefore, as in all doubtful cases, resort to the judgments of our municipal Courts, if this point had ever arisen there. There is nothing in any of the foreign jurists which we think ought to govern us on these points, unless they had been supported by admitted principles, decided authorities, or general usage. None of the decided cases apply to the present 5 and we have unfortunately been so long engaged in war, that instances of this kind must frequently have occurred : and as there appears to be no case where a demand r *fin^ 1 ^''^^ ^^^ present has been made, we must * conclude from that silence ^ J that no general usage, which could justify such a demand, has existed, and, therefore, that such losses cannot be taken to fall within the prin- ciple of general average." And it was decided in Harris v. Watson, («) by Lord Kenyon, that an extraordinary allowance promised by the master to the sailors, in considera- tion of unusual exertions made by them in a case of danger, cannot be made the subject of a general average, since the mariners are bound, without any extra wages, to use all exertions that are necessary in a time of danger. Another charge usually claimed as general average was, according to Beawes, the sum which the master may have promised to pay for the ransom of his ship to any privateer or pirate, when taken, [b) But, as we liave seen in a former part of this work, ransoms are now prohibited by the law of England, (c) A master who has cut his mast, parted with his cable, or abandoned any other part of the ship and cargo, in a storm, in order to save the ship, is well entitled to this compensation: but if he should lose them by the storm, the loss falls only upon the ship and freight, because the tempest only was the occasion of this loss, without the deliberation of the master and crew, and was not volun- tarily done with a view to save the ship and lading, {d) (/) Park Ins. 281. (a) 2 Marsli. 309. The expense of curing the wounded is made the subject of a general average by the Code de Commerce, art. 440, num. 6, and by the ordinances of the Hanse Towns, art. 35. For the provisions of our laws for the encouragement and protection of seamen, see Abb. 6th edit. p. 2, c. 6. (a) Peake, 72. {b) Beawes, 148. (c) Ante, p. 300. {d) Beawes, 148. The loss of a cable cut away by the master in a storm as the ship was entering Sunderland harbour, in order to fasten the ship to the pier and prevent collision with another vessel, was held the subject of a general average. Birkley v. Presgrave, 1 East, 220. GENERAL AVERAGE. 279 But in the case of Covington v. Roberts^ (e) where a vessel carrying a press of sail, in order to avoid a privateer, sustained damage, the Court held that it did not come under the head of a general average. It was only a common sea risk, and must be borne by the owner of the ship, who, if insured, can claim the loss from the underwriter. *So where a ship slips or cuts away her cable in order to sail ^ it^oA "i with convoy, this is not the subject of general average, (a) L J And if a cannon ball pass through a bale of goods, the damage done is not the subject of a general average, (b) We have seen in a former part of this Treatise, (c) that goods lashed on deck do not come under the general term of goods in the policy, unless it is the usual mode of stowing them, for that the risk upon them is of course greater than on other goods, and therefore in the case of a loss, tliough these goods must contribute in common with the others, (rf) they themselves (if lost) are not the subject of a general average. By the ordinance of Louis XIV., art. 12, s. 16, it provided that no master shall lay any goods on the ship's deck without the consent of the owners, on pain of being answerable for all damages j and by art. 13, s. 33, that no con- tribution shall be demanded for payment of such goods as shall be laden on deck. The Code de Commerce^ art. 421 ; Emerigon, c. 12, s. 42; Consol. del Mare, c. 183; and Valin, tit. "Z)?< Capitaine,^^ art. 12, are authorities to the same effect. But Valin says that this rule does not apply to boats or small vessels going from port to port, or to cases in which that mode of stowage is sanctioned by custom. • In Be Costa v. Edmunds, (e) we have seen that it was decided that, where the jury found that there was a usage to carry goods of that description on deck, the underwriters were held liable for the loss. And the Court of Common Pleas, in a recent case of Gould v. Oliver, (/) which was an action brought against a shipowner to recover a contribution in respect of a cargo of timber, laden on deck, and where it was proved that it was the usage of the trade so to stow it, held, tliat the same rule was to be adopted in the case between the shipowner and the owner of the cargo, as between *the owner of p ^._„- -, the cargo and the underwriter in Be Costa v. Edmunds, and that L J as the stowage on deck was sanctioned by usage, the loss was properly the subject of general average. This subject was most elaborately argued and discussed at the Bar in the Court of Queen's Bench, and an important judgment of that Court delivered by Lord Benman, C. J., on .dpril 28th, Easter Term, 5 Vict. 1842, in the case of Milward and others v. Hibbert and another, (a) The first count of the declaration stated, that heretofore, to wit, 20th Novem- ber, 1837, by deed poll, or policy of assurance, there made and sealed, &c. The declaration then set out the policy, which recited, that the plaintiffs had represented to defendants, directors of, and acting for. The Indemnity and Mutual Marine .Assurance Company, that they were interested in, or author- ized as owners or agents to make the assurance, and had covenanted, &c. , to pay the premium mentioned: and it was witnessed that in consideration. &c., defendants covenanted and agreed with the plaintiff's, that the capital stock and funds of the Company should be subject, and liable, and be applied to pay and (e) 2 N. R. 378. (a) Stevens on Average, p. 16. (6) Le Guid. c. 5, art. 4; 1 Emcrigon, 637, c. 12. (c) Page 19. (d) Stevens, 14. (e) 4 Camp. 142. (/) 5 Scott, 445; 4 B. N. C. 134; ante, p. 20. (a) 4 Q. B. 120. 280 GENERAL AVERAGE. make good all such losses and damages thereinafter expressed, as miglit hap- pen to the subject-matter of the said policy, and might attach to the said policy, in respect of the sum of 3.000/., thereby assuretl. Which assurance was declared to be upon hull and stores, valued at 10,000/., machinery valued at 10,000/., in all 20.000/. average, payable at such valuation, of the shij) or vessel called The KUkemiy Steamer, whereof, ) Beawes, 150. (c) 1 Mag. 67. (a) Park Ins p. 287. In tlie case of Lateward v. Curling, Guildhall, Sit. after Trin. 1776. 286 GENERAL AVERAGE. lately settled in the case of Be Faux v. Salvador, 4 A & E. p. 425. It seeras to be admitted, that where there is any damage sustained by tlie ship which is the subject of a general contribution, the wages and other expenses, during the time of repair, follow as accessaries, and form part of the general contribution. By the ordinances of Louis the Fourteenth, the charges in such a case shall be reputed general average, if the seamen be hired by the month ; otherwise, if by the voyage, (d) There is a passage in Beajves which confirms the idea entertained by Lord Mansfield. "Though it must be noted," says this author, "that the charges of unloading a ship, to get her into a river or port, ought not to be brought r «f;i7 "1 i"^o ^ ^general average; but they may when occasioned by an L J indispensable necessity to prevent the loss of ship and cargo. As when a ship is forced by a storm to enter a port to repair the damage she has suffered, if site cannot continue her voyage without an apparent risk of being lost, in which case the wages and victuals of the crew are brousfht into an average from the day it was resolved to seek a port to refit the vessel, to the day of her departure from it, with all the charges of unloading, reloading, anchor- age, pilotage, and every other expense incurred by this necessity." [a) A question nearly similar came before the Court of King's Bench in the case of Ba Costa v. Ncwnham, {b) in which Mr. Justice Buller quoted the above passage from Beawes, as also the above-mentioned case of Latevmrd v. Curl- ing: and although the learned Judge thought it then unnecessary to decide the point here agitated, yet the leaning of his mind seem.ed to be in favour of the affirmative. This, however, was held by the whole Court, — that where a ship is obliged to go into port for the benefit of the whole concern, the charges of unloading and reloading the cargo, and taking care of it, and the wages and provisions of the workmen hired for the repairs, become general average. Where a ship went into port in distress, and wanting repairs, it became necessary to take out the cargo, and there being no warehouses at hand, it was put on board other vessels. Lord Stowell held, that as the unloading of the goods was for the common benefit of all, it being necessary to unload the ship for the preservation of the cargo, as well as for its own repairs, the expense incurred by it must be considered as a general average, (c) In Ba Costa v. Nnvnham, the custom of Lloyd's of deducting one-third new for old materials after a ship's first voyage, was recognized. ( -, on the Law of ^'■Merchant Ships and Seamen,'''' has inserted an •- -' example in figures by which, as he very properly observes, the principle of the mode of contribution can be more easily illustrated, (o) It only remains now to state, that the insurers are liable to pay the insured for all expenses arising from general average, in proportion to the sums they have underwritten. Roccus says, "Jactu facto, ob maris tempestatem, pro sublevanda navi, an teneantur assecuratores ad solvendum estimationem rerum jactarum domino ipsarum.'' Die eos non teneri, quia pro rebus jactis fit con- tributio inter omnes merces habentes in ilia navi pro solvendo pretio domino ipsarum, et idco si assecuratus recuperat pretium rerum jactarum, non potest agere contra assecuratores ; tamen tenentur assecuratores ad reficiendum illam ratam et portionem, quam solvit assecuratus in illam contributioneni faciendo inter omnes, habentes merces in ilia navi quse portio cum non recuperetur ab aliis, habetur pro deperdita, et proinde ad illam portionem tenentur assecu- ratores." [b] The opinion of this learned civilian is agreeable to the laws of all the trading powers on the continent of Europe, as well as to those of England, where the insurer, by his contract, engages to indemnify against all losses arising from a general average. 2. With respect to the payments of the contributions to a general average, it is usual in this country for the brokers who have procured the policy of insurance to be efl^ected, to draw up an adjustment of the average which the underwriters usually pay in the first instance without any dispute. But in case of dispute the law provides a remedy for and against each party to the contri- bution. In the case of an expenditure of money, probably an action for money paid might be maintained against each of those *who were benefited by r- ^^-nyy -i such expenditure. But as this would lead to a multiplicity of L -J actions ; and this species of action is not applicable to the case of goods thrown overboard, the better mode in all cases seems to be to apply for contribution to a Court of Equity, where effectual relief may be obtained against all the parties in one suit, (o) ' In Birkley v. Presgrave, {b) it was decided that a special action of assump- sit may be maintained by the owner of a ship against the owner of part of the cargo, to recover from him his proportion of a general average loss, incurred by cutting the cable and part of the tackle of the ship, and applying them to a use, for which, they were not originally intended, for the general preservation of the whole concern. And in the case of Dohson and others v. JVilson, (c) it was held by Lord Ellenborough that a similar action might be held by one shipper of goods against another. 3. By the maritime laws and usages of all nations the place of the ship's destination or delivery of her cargo is the place at which the average is to be adjusted, and the master is not compellable to part with the possession of the (a) The reader is referred to the note in question, Abb. 6th edit. p. 449. (6) Roccus de Assecurationibus, Not. 62. ((z) Com. Dig. tit. Chancery, (2, 1,) and Shower's Pari. Cas. and see the judgment of Lord Ellenborough in Dobson v. Wilson, 3 Camp. 480 ; see ante, p. 505, case of Milward V. Hibbert. (b) 1 East, 220. (c) 3 Camp. 480. 292 THE ASSURERS, ETC. goods until the sum contributable in respect to them is either paid or secured to him. (d) It would, therefore, seem to follow as a natural consequence that if the average is to be adjusted at the place of destination the adjustment must be made conformably with the law of that place. And it has been decided, therefore, in the case of Simond and Loder v. White, (e) that where the pro- prietors of goods were compelled at Petersburg to pay a sum of money to the shipowner as a contribution to a general average, settled at Petersburg according r spi^ft 1 ^^ ^^^^ ^^^^ °^ Russia., *in order to recover possession of their goods, L J they could not recover back again so much of the money paid as would not have been charged to them on an adjustment of average according to the law of England^ the ship being a British ship and all the parties British subjects. SECTION XVII. THE ASSURERS, ETC. Having in the fifteenth section of this Treatise considered the effect which the term " unless general" has upon the memorandum, by which the underwriters exempt themselves, in the case of some articles, altogether from the payment of average losses, in others unless the losses amount to five per cent, and in all others not mentioned, and, with respect to the ship and freight, unless amounting to three per cent., with this general exception overriding the whole memorandum, viz : "unless general," or "the ship be stranded;" and having also in the preceding section treated of "general average," as to its real nature and character as a most ancient rule and principle of frequent and most useful application in marine affairs at the present day, I come now to treat the last sentence in the policy itself, which was, we recollect, for certain reasons alleged, postponed till after the memorandum was discussed, though the sentence we are about to refer to is properly the last sentence of importance in the policy immediately followed by the subscription of the underwriters; whilst the memo- randum, though affecting the whole policy, scarcely can be called part of it, and might be omitted altogether, without interfering with the contract between the parties, any more than with respect to the limitation of the underwriters' liabilities in cases of average losses, except upon two conditions. This sentence is in the following words: — "And it is agreed by us, the assurers, that this r *fi2Q 1 ^^^i'i"& *3^ policy of assurance shall be of as much force and effect '- -"as *the surest writing or policy of assurance heretofore made in Lombard Street, or in the Royal Exchange, or elsewhere in London. And so we, the assurers, are contented, and hereby promise and bind ourselves, each one for his own part, our heirs, executors, and goods, to the assureds, their executors, administrators, and assigns, for the true performance of the premises, confessing ourselves paid the consideration due unto us for this assurance by the assured, at and after the rate of (the premium, so much per cent. ) In witness whereof we, the assurers, have subscribed our names, and {d) 1 Consulat de la Mer, s. 225; Complete Body of Sea Iiaws, s. 33, art. 31; Well- wood, tit. 21, p. 47; Bynkershoek Questiones Juris Privati, lib. 4, c. 24; Malyne's Lex Mercatoria, 3rd edit. 1 13; Beawes, 245; Ordinance of Louis XIV. book 3, tit. 8; Du Jet, art. 21; Abb. on Shipp. 6th edit. 451. (e) 2 B. «fe C. 805. THE ASSURERS, ETC. 293 sums assured, in London.^'' This is necessary, of course, for the protection of the assured, and, as we before observed, the policy is signed only by the underwriters. But it is to be recollected that they, in the policy itself to which their names are affixed, "confess themselves paid the consideration due unto them for this assurance by the assured, at and after the rate of ( ;") and therefore a court of law, or of equity, will bind them to their bargain. The poHcy becomes the property of the assured, and he may maintain an action for it against any person wrongfully withholding it, either the broker, or any party into whose hands it may have got; but the broker (as we shall presently see) has a lien on the policy for advances. Lord Mansfichl, in a case of Harding v. Carter and another^ [a) reported in the late Mr. J, Parkas Treatise, very early laid the law down in favour of the assured. The action of trover was brought by the plaintiff (a captain of a ship) against the defendants, who were brokers, for two policies of assurance. The defendants wrote to the plaintiff that they had had two policies made, the one on the plaintiff's "clothes and wages," the other on the account of the "owners," and that the underwriter was Mr. Newnham. A loss having hap- pened, the defendants produced a policy, underwritten by one T. S., only insur- ing the ship, in which the plaintiff had no interest. Lord Mansfield. — "I shall consider the *defendants as the actual assurers, and therefore the p *rLOA n plaintiff must prove his interest and loss." The defence set up L -^ was, that the letter above stated in evidence was written by the defendant's clerk, by mistake ; and it was said that trover could not be maintained for that which never existed ; but his Lordship would not suffer the defendants now to contradict their own representation ; and the plaintiff accordingly had a verdict to the amount of his interest, the premium being deducted. In the beginning of this Treatise, I mentioned who might, by law, be the assured. I shall now briefly state who may be the assurers. It seems that at the common law, and by the usage of merchants, any person whatever might be an assurer, however unable he might be from poverty to make up the losses insured, provided the merchant Avas weak enough to trust to such a security. In process of time, however, there were so many who made a great show of wealth, in order to deceive the honest and unsuspicious trader out of his pre- mium, that it became an object of national and Parliamentary interference. And by the statute 6 Geo. 1, c. 18, the king was empowered to found two chartered companies, viz: " TVte Royal Exchange Assurance Company,^^ and ^^ London Assurance Company,'''' for making marine insurances, and for lending money on bottomry ; and, by the 12th section of the act, a monopoly was given them, in exclusion of all other corporations or partnerships, all poli- cies made by which were declared to be void, and the parties to them liable to the penalties of usury. Individual persons, however, might underwrite policies or lend on bottomry, if not on account of a corporation or partnership. And, by the 26th section, the '■'■South Sea Company, ^^ and " TVte East India Company,'''' were also allowed to lend on bottomry, with regard to ships and goods in their service. The privilege, however, thus given to these two com- panies, in exclusion of all other corporations and partnerships, is now taken away by 5 Geo. 4, c. 114; by the second section, however, of this act it is provided that nothing in that act should affect the rights and privi- p ^,,„, -> leges *of the two corporations, otherwise than by making it lawful L J for other corporations and bodies politic, and persons acting in partnership, to grant and make policies of insurance, and contracts of bottomry Insurances may, therefore, at this day be made by private individuals, and by partnerships (a) Sit. at Guildhall, Easter Vacation, 1781. Park Ins. p. 5. 294 THE ASSURERS, ETC. or companies, with or witliout charters, without any restriction. The com- panies who have in recent years come into existence in consequence of this enactment, it may easily be imagined, are extremely numerous both in Eng- land, Scotland, and Ireland; it would be useless for me to mention their names, a great number of them, however, will be found to be parties in many of the recent cases referred to by me. I, however, shall just refer to the ancient chartered companies of " The Royal Exchange .Assurance Com- pany,^'' and that of the '-^London Assurance Company. ^^ 1. The Company of the London Jismirance, whose policies were nearly the same as those of the Roycd Exchange Company, have now adopted the following memorandum, more analogous to that of the private assurers, as it re-establishes the exception, which they had discontinued, in the "case of stranding :" (o) — "Free from all average on rice, corn, flour, fish, salt, salt- petre, fruit, and seeds, except general, or the ship be stranded;" "free from average on sugar, rum, hides, skins, hemp, flax, and tobacco, under five pounds per cent. ; and on all other goods, the freight, and ship, under three pounds per cent., except general, or the ship be stranded." 2. The Royal Exchange Company, which is remarkable for the following memorandum, which does not contain the words, "unless the ship be strand- ed :" — "Free from all average on corn, flour, fish, salt, fruit, seeds, hides, and tobacco, unless general, or otherwise specially agreed. r *532 1 "Free from average on sugar, rum, skins, hemp, and flax, L -^ *under five per cent. ; and on all other goods, and on the ship, under three per cent., unless general." 3. Of the private assurers, it is hardly necessary I should mention the society of underwriters at Lloyd's, who assemble together in a large room in the Royal Exchange. These underwriters, though quite independent of each other, have rules and regulations which are binding for the most part upon them all ; they have a list of every registered British ship certainly, with the class to which it belongs ; they have agents all over the world ; they have daily ac- counts from all parts of the globe relating to ships, the accidents which have happened to them, accounts respecting their arrival at their ports of destination, of the times of their setting sail on their different voyages, of their being missino^ and not heard of, and of every thing relating to the ships which are dispersed over the world, which may (by possibflity) interest and afiect their concerns. They are a highly honourable and Avealthy set of persons. There are also underwriters residing in the large sea- port towns in Great Britain, such as Liverpool, Bristol, Edinburgh, Dublin, and others. And I must now mention another class of men, viz : the insurance brokers, who, in fact, are the agents who actually make for the merchants, their prin- cipals, the insurances with the underwriters. They are, as well as the under- writers, a most respectable class of persons, and extremely useful to merchants living at a distance from London. And in this section I propose, first, to con- sider what are the rights and duties of the insurance broker, and also in what manner the setflement of accounts between them, the underwriters, and the assured, in point of practice, really takes place. And in this section the set- tlement which I allude to, is that amicable arrangement between the assured and the underwriters, by which the losses are paid after they have been adjusted; in a furflier part of this Treatise it will, unfortunately, be necessary («) See ante, p. 49G, the account given by Sir F. Norton, in his argument, 3 Burr. 1553, of the Company having given up the use of that part of the memorandum relating to the stranding "of the ship" after having been defeated in an action of Cantillon v, the Company. THE ASSURERS, ETC. 295 to point out by what form of legal proceeding either party must adopt, in order to obtain a proper redress for what *tliey may consider the wrongs r- ^___ and grievances they have received from the other party. L ^'^^ J Policies of insurance are seldom made by die party himself really interested, but generally by die intervention of an agent employed by the assured, called an insurance broker, who transacts the business with the underwriters as attor- ney for his principal, from whom he receives his instructions, which if he do not obey, and from whicli if he deviate, he is answerable to his employer in an action like any other person who undertakes any office, employment, trust, or duty, and who thereliy impliedly undertakes to perform it with integrity, dili- gence, and skill, Delany v. Stoddart. (a) Insurance brokers are a class of persons who may be properly enough designated as the goers-between the mer- chant making insurances and the underwriters who subscribe the policies. As many of the former reside abroad, or in remote parts of JSna;hind, and may be supposed, frequendy, not even to be known to the underwriters, the brokers who make the insurances for them in London, must be considered as a very useful class of agents, and are, in some respects, invested with a superior degree of authority than agents in general are. They are likewise persons of great respectability and honour, and to whom tlie merchant is able to look with confidence for a proper performance of his duty, and for the selection of accre- dited and responsil)le underwriters to subscribe the policy. When a merchant abroad consigns goods to another in this country, giving instructions to the consignee to make insurances upon the cargo, the proper and usual plan is for the merchant here to apply to a broker who is personally acquainted widi the underwriters, and who gets the insurance made by them, thus dividing the risk amongst a number of responsible persons. It need, therefore, hardly be remarked, that if the merchant at home, instead of pro- ceeding in diis manner, were to take the risk upon himself, without ^ ^,_„^ -, the ^knowledge and consent of his correspondent, and debit him L ' *''* J with the amount of premium, he would be guilty of gross misconduct, and that in the event of a loss, he would not only be liable to the consignor, but that the premium, having been received by him without a consideration, might be recovered back. I would not, however, by the above observations, be construed to insinuate that a practice of this description, illegal and dishonest as it would be, obtains at all in this country, the acknowledged integrity and honour of whose merchants are so well established over the whole world. There would likewise be this obvious objection to tlie consignee becomino- the insurer himself, as having the cargo consigned to him, and consequently the control of it, he has die opportunity, in taking it out of the ship, of making the nature of an average loss appear different from that wliich it is, in fact, so as to keep it out of the exception of the common memorandum. The insurance broker is agent both for the assured and for the underwriter. His duty to the assured, besides in pursuing his instructions and exercising due care and diligence in effecting the policy, consists in his receiving from the underwriter the proceeds of a setdement of a loss, and his duty to the under- writer is to pay them, when received, to the assured, Russel v. Bangley. [b) I propose to consider, in the first place, what are the rights and duties of the insurance broker; and, in the second place, I shall consider the general ques- tion of the setdement of accounts between the broker, the underwriter, and the assured, in which question will be involved the respective rights and liabilities of the several parties to each odrer. I. First, then, we will consider the rights and duties of the insurance broker. (a) I T. R. 22. (6) 4 B. «Se; A. 398. 296 THE ASSURERS, ETC. 1. The insurance broker sometimes acts under a del credere commission, and an action lies against the assured for the price without waiting till the event is determined, Carruthers v. Graham, [d] r *'i'^'i 1 *As the broker transacts the chief part of the business, and pays L -^ the premium, the law gives him a lien upon the policy in his hands without any notice given to the underwriters, so as to enable him to deduct not only the premium and commission due on the particular policy, but the general balance due to him on the account between him and his principal, Mann v. Forrester, (a) And this is so, although the policy be not made on account of the party giving him the orders, for if he have no notice at the time that the policy is not on account of the party employing him, he has a right to satisfy his general balance out of money received on the policy both before and after notice that it belongs to a third party, for he must be supposed to have made advances on the credit of the policy which was allowed to remain in his hands : per Lord Ellenborough in Mann v. Forrester, [b) And it has been decided, that if a broker parts with the possession of the policy so as to lose his lien upon it, and it gets back again into his hands, for any purpose whatever, the lien revives, TVhitehead v. Vaughan. (c) It has been also held in the case of Falkner v. Case, {d) that such policies whilst pledged with the broker, are not in the order and disposition of the bankrupt assured within the meaning of the Bankrupt Act, although no notice is given to the underwriters. But in the case of Maanss v. Henderson, (e) when an agent made a policy in his own name, he being an Englishman, and told the broker that the pro- perty was neutral, and to warrant it as such, it was held that this was a suffi- cient notification to the broker that the party acted only as agent: and, therefore, in an action against tlie broker by the foreign principal, it was held that the broker could only set off' the money due for the particular premium, and not the general balance due from the English agent to him. r *'i'^fi 1 *^'^ Hunter v. Leathley, (a) the broker who made the policy L J was called as a witness for the plaintiff", and required to produce the policy : this he refused to do, claiming to have a lien on it for the premiums advanced by him. But it appearing that he had been served with a siibpcena duces tecum. Lord Tenterden held that he was bound to produce it, inasmuch as he would not thereby be deprived of his lien. His Lordship said, "if we allowed the broker to withhold the policy on account of his lien, we should permit that which would work great inconvenience, and we should enable brokers to assist the underwriters in defeating the just claims of the assured. We do not by this decision deprive the party of his lien, he still has the policy in his possession, and has the same right of lien as before." And it was held, likewise, that although he had a lien on the policy, he still was a competent witness at the trial between the assured and the underwriter. 2. It has been observed, that an action will lie against a broker for either not attending to the orders of his principal in effecting an insurance when required to do so, or for being guilty of remissness in the execution of it. When a man undertakes either by an implied, or an express promise, to do a thing for another, and he neglects to do it, or does it unskillfully, the law gives the per- son in general an action for the remedy. And this is the case with respect to (rf) 11 East, 578. (a) 1 1 Camp. 60. lb) 4 Camp. 60. (c) T. T. 25, (Jeo. 3, and Parker v. Carter, Trin. Term. 1788, which cases are in Mr. Cooke's Book on Bankruptcy. {d) Cited in Lempriere v. Pasley, 2 T, R. 491. (e) 1 East, .335. (a) 10 B. & C. 858. THE ASSURERS, ETC. 297 an insurance broker; and the only dificrence between the action against him and that on the pohcy against tlie underwriters, is in point of form ; for the plaintiff is in this action entitled to recover from the broker the exact sum he ordered to be insured; and the defendant is entitled to every benefit of which tlie underwriter could have taken advantage, such as fraud, deviation, non- compliance with warranties, and the like. In the case of Smith v. LasccUes^ [a) the whole law of tliis action was very fully laid down by Mr. Justice BuUer, and assented to by the whole Court; and upon this occasion that*learned Judge mentioned the three p ?.r;o7 -i instances in which such an order to insure must be obeyed, other- ^ J wise an action will lie. First, where a merchant abroad has effects in the hands of his correspondent here, he has a right to expect that he will obey an order to insure, because he is entided to call his money out of the other's hands when and in what manner he pleases. The second class of cases is, where the merchant abroad has no effects in the hands of his correspondent, yet if the course of dealing between them is such, that the one has been used to send orders for insurance, and the other to comply with them, the former has a right to expect that his orders for insu- rance will still be obeyed, unless the latter give him notice to discontinue that course of dealings. Thirdly, if the merchant abroad sends bills of lading to his correspondent here, he may engraft on them an order to insure, as the implied condition, upon which the bills of ladings shall be accepted, which the other must obey, if he accept them, for it is one entire transaction. For if the commission from abroad consists of two parts, the one to accept the bill of lading, die other to cause an insurance to be made, the correspondent cannot accept it in part, and reject it as to the rest. 3. But it was held in the case of Wilkinson v. Coverdale, (b) if a person, though not legally obliged to comply with an order to insure, nevertheless accepts it, it is incumbent on him to carry it into execution, and to perform it with diligence and ordinary skill, or he will be liable to the principal for the consequence arising from his unskillfulness or neglect. Thus in JVallace v. Telfair, (c) where a merchant here accepted an order for insurance, but limited the broker to too small a premium, in consequence of which no insurance could be procured, it was held that he was liable to make good the loss to his correspondent. *And in Sellar v. Work, (d) where a broker employed another, r- j^p-qo -i but omitted to give him all the instructions he was furnished with, L J it was held that he was liable to answer for the loss occasioned by his omission, though he derived no profit from the transaction. But if an agent, to whom insufficient orders are sent, does all that is usual to get the insurance made, that is sufficient; because he is no insurer, and is not obliged to get the insurance made at all events, (e) 4. In the case of Park v. Hammond, [/) where a broker was informed that the assured would take upon himself the risk of the cargo from Malaga to Gibraltar, and was ordered to insure from Gibraltar to London, and neglected to state to the underwriters that the goods were not laden at Gibraltar, inas- much as this omission vacated the policy, he was held liable to the assured for this neglect. (fl) 2T. R. 187. (i) 1 Esp. 75. (c) 2 T. K. 188, n. (rf) At Nisi Prius, 1801, Marsh. 305. \e) Smith v. Cologan, 2 T. R. 188, n. (/) 2 Marsh. 189. 298 And in the case of Mallony v. Barber^ (d) where an insurance broker was instructed to make a policy at and from TencriJ/'e to London^ and he omitted to insert in it a liberty to touch and stay "at all or any of the Canary Inlands,''* he was held liable for that negligence, because it was proved that that liberty was invariably inserted in such policies. And in Campbell v. Richards and others, (e) if the broker, when he makes a policy, omits to state any circumstance, wliich, on the trial between the assured and the underwriter, would constitute a sufficient answer for the latter, on the ground of there having been a material concealment, he is liable in an action to the assured for this omission. And, therefore, where a merchant at Sydney shipped goods for England on board a ship, and, by another ship that sailed after her, wrote to an agent in England, and desired him, if he received r ^'I'^Q ~1 ^^^^ letter before the ship in question arrived, to *wait thirty days, L -^ in order to give every chance for her arrival, and then to make an insurance on the goods : and the letter was received, and the agent, having waited more than thirty days, made an insurance through a broker, who informed the underwriters when the ship which had the goods on board sailed, and when the letter ordering the insurance was written, but did not state when it was received, nor the order to wait thirty days after the receipt of it : the assured having brought an action on the policy, and failed on account of the suppression of the above facts by the broker, [a) the present action was brought against the broker for negligence in making the policy. It was, likewise, held in this case, that though the opinion of l^rokers and underwriters might be asked as to mat- ters of practice in their profession, they could not be called to speak as to one of the points upon which the jury would have to give their verdict, i. c, whether the fact concealed was material or not, and whether it ought to be com- municated to the underwriters. In Chapman v. JValton, (b) which was an action against a broker for negli- gence, where the defendant having made policies of insurance on goods for one Richardson, and Richardson having received a letter from the supercargo, telling him tliat the voyage was altered, which letter Richardson immediately took to the defendant, telling him "that the voyage was altered, and that he left the letter with him to do the needful with it," it was held that brokers might be called to say, looking at the policies, the invoices of the goods, and the letter, what alterations in the policies a skillful broker ought to have made. Tindal, C. J., said: — "It is objected on the part of the plaintiffs, that to allow this question to be put to witnesses is, in effect and substance, to allow them to be asked what is the meaning of the letter, whereas the letter ought to r *'i40 1 ^^ allowed to speak for itself; or if there be any doubt upon *the L J meaning of it, it ought to be determined by the Court and jury, and not by the evidence of insurance brokers, or any other witnesses. It may be admitted, that if such were the real nature of the question, the evidence offered would have been inadmissible. But we think, upon reference to the issue between the parties, it was different. The action is brought for want of rea- sonable and proper care, skill, and judgment, shown by the defendant, under certain circumstances, in the exercise of his employment as a policy broker. The point, therefore, to be determined, is not whether the defendant arrived at a cori'ect conclusion upon reading the letter, but Avhether, upon the occasion in •question, he did or did not exercise a reasonable or proper care, skill, and judgment. This is a question of fact, the decision of which appears to us to (d) 4 Camp. 150. (e) 5 B. & Ad. 840. (a) See Rickards v. Murdock, 10 B. &, C. 527, and Durrcll v. Bedesley, Holt, 285, post. (b) 10 Bing. 57. THE ASSURERS, ETC. 299 rest upon this further inquiry, viz : whether other persons, exercising the same profession or calUng, and being men of experience and skill therein, would or would not have come to the same conclusion as the defendant. For the defend- ant did not contract that he would bring to the performance of his duty, on this occasion, an extraordinary degree of skill, but only a reasonaljle and ordinary proportion of it, and it appears to us that it is not only an unobjectionable mode, but the most satisfactory mode of determining this question, to show by evidence whether a majority of skillful and experienced brokers would have come to the same conclusion. And there is no hardship on the plaintiffs by this course of proceeding, for they might have called members of the same profession or trade to prove opposite evidence, and the jury might have decided between such conflicting testimony, according to the relative skill or experience of the witnesses on either side, or according to the strength of the reasons which were advanced by the witnesses in support of their respective opinions." 5. In the case of Corlet v. Gordon^ (a) it was held that an agent cannot delegate his authority to another, and therefore, *^\vhen a merchant p *-±-\ "i in this country receives from a merchant abroad, with whom he '- -^ had no previous connexion, a bill of lading, inclosed in a letter, requesting that an insurance might be made on the goods, and the merchant declining to do business for the consignor, indorsed the bill of lading to a person who was his friend, and creditor, who received the goods, and afterwards failed, with the proceeds in his hands ; it was held that the merchant who had his election either to accept or reject the bill of ladino-, but was bound, if he accepted it, to complv with the terms of the consignment, and himself to insure and sell the goods, was liable for the consequences arising from his misconduct. 6. If a principal give instructions to an agent to insure upon certain terms, and the aofent finds that he is not able to effect the insurance on those terms, it O .... would seem that there is an implied duty, requiring him to give notice to his principal of the fact in order that the latter may have the opportunity of getting the policy made elsewhere, or of acting in what manner, under the circum- stances, he thinks best : and if the agent makes the insurance on terms different to those required of him, he is guilty of a breach of duty. Thus, in the case of Callandar v. Oclrichs, (b) where the plaintiff who was a corn-dealer, employed the defendants, one of whom resided in London, the other at Baltimore, as agents, to dispose of a cargo of wheat, shipped on his account from London to Bullimore. On the 22nd of April, the wheat being then on board, the defendants received from the plaintiff" instructions to make an insurance on the wheat, with a clause declaring it subject to average above 10/. The defendants (who were not insurance brokers, and did not appear to have made any policies on behalf of the plaintiff) in a letter dated 22nd April, acknowledged the receipt of the plaintiff's letter of the 22nd, but took no notice of the order to insure. They, however, applied at two offices, but not at Lloyd's, to get the insurance done, but in consequence p ¥542 "I *of the vessel being E. 1, they were unable to make it on the L -" terms mentioned in the plaintiff's letter. Their inability to get a policy made pursuant to their instructions, was not communicated to the plaintiff: and they subsequently insured upon the common policy, "free from average, unless general, or the ship be stranded." Mr. Justice Colfman left it to the jury to say whether or not it was a condition to be implied from the nature of the transaction, that the defendants should give notice to the plaintiff of their ina- bility to make the insurance on the terms mentioned in the plaintiff's letter of the 22nd of April. The jury found that it was, and returned a verdict for the (a) 3 Camp. 472. (6) 6 Scott, 761, 5 B. N. C. 58. 300 THE ASSURERS, ETC. plaint! (T. A rule for a new trial having been obtained, on the ground that it did not appear there had been any express undertaking on the part of the defend- ants to give the plaintifT notice; it was argued, on the part of the defendants, that although where the contract was to be implied from a course of dealing or employment between the parties, it was competent to the plaintiff to declare upon it according to its legal effect, that he could not do so in the case of an express mercantile contract. The allegation in the declaration in question was the following, viz: — '•'that the defendants undertook and faithfully promised the plaintiO' to use due and reasonable diligence in the premises, and faithfully to discharge and execute their duty as such agents, and in the event of any difficulty arising in making such insurance, or in case they should be prevented making such insurance, on the terms aforesaid, to give notice thereof to the plaintilf within a reasonalile time." Tindal, C. J.— "I am of opinion that the rule that has been obtained for a new trial in this case must be discharged. The question arises on a declara- tion upon an action against agents, in which the duty of the agents is stated to be to cause certain wheat of the agents to be insured on certain terms, or in the event of their not causing the same to be so insured, to give notice to the plain- tiff widiin a reasonable time that they had not done so : and the breach assigned r *p»4.'i 1 ^^ ^'^^^ ^^^^ defendants, disregarding their duty as such agents, *made L J an insurance upon the wheat upon terms different from their instruc- tions, and omitted to give the plaintiff notice as aforesaid, whereby the plaintiff sustained an average loss. The objection is that there was no evidence given at the trial of any promise by the defendants to give the notice stated in the declaration ; and the question is, whether this part of the promise is not matter that the law will infer from the general duty cast on the defendants. The ques- tion is whether or not the jjivin^ of notice is a leo-al liability resultinjr from the situation of the parties.^ I am of opinion that it is. The defendants' duty would not be well performed, unless they communicated to the plaintifl' the fact tliat they were unable to make the insurance upon the terms proposed. See the situation of the plaintiff; the failure of the defendants to communicate to him the terms upon which alone they were able to insure the wheat, pre- vented him from getting it done elsewhere, which possibly he might have suc- ceeded in doing. The case seems to me to fall within the principle of Smith V. Lascelles, [a) where it was held that if a merchant here has been accus- tomed to procure insurances for his correspondent abroad, in the usual course of trade, the latter has a right to expect an insurance at the hands of the former, unless notice be given to the contrary." The rest of the Court concurred, and the rule was discharged. A very recent and important case on this subject was argued in the Common Pleas, Michaelmas Term, 1842. The case was Tiirpin v. Bilfon., {b) and was an action on the case against the defendant, an insurance broker, for not making an insurance according to his undertaking. The declaration, after stating the retainer and employment of the defendant to cause an insurance to be made on the plaintiff's ship, tackle, &c., and the defendant's acceptance of such retainer and employment, alleged, by way of breach, that, althou£rh a reasonable time had long before the commencement of this suit elapsed, and r *'i''4 1 before the loss of the ship, yet the defendant *did not, nor would, L * J within a reasonable time, cause to be made, accordinof to the cus- torn of merchants, insurance upon the said ship, tackle, ) 4 Taunt. 775. (c) Sec Graham v. Russell, B. R. Michaelmas, 57 Geo. 3. Parkins. 814'; and sea now 6 Geo. 4, c. 16, s. 53. (rf) 16 East, 382. (e) A}ite, p. 553. (/) 1 M. «& S. 494. THE ASSURERS, ETC. 307 who is a stranger to it, and empowar B. to set up a claim against him as derived out of that contract. And therelbre ifie Court decided, that where a broker made poUcios in the name of his principal under a del credere commission, he could notset-ort" airainst an action for the premium total losses which happened on those policies, although the broker had accounted for them with his principal. In this last case there was no bankruptcy, and Lord Ellenborow^h also observed, that in Grove v. Dubois, the policy was filled up in the name of the broker, and the whole dealing was lietween the broker and tlie underwriter. He also made a similar observation in the case of Raster, Assignee of Sivan V. Eason, (c) where the Court of King's Bench held, after time taken to delib- erate, that in an action brought by the assignees of a bankrupt underwriter, the broker could only set ofl' such losses and returns as were due on policies made in the broker's own firm, such losses and returns having become due on those policies before the underwriter stopped payment, though never adjusted by the bankrupt, and for the amount of which losses and returns the broker had given their principals credit. But the Court also decided that the broker could not set-off, where the policies were made in the name of the principals themselves, though the broker hatl a del credere commission. And in a subsequent case of Parker v. Beasly, [d) the "Court |- ^__^ -, of King's Bench, adopting the distinction just made, decided, that L J where brokers made policies on goods on account of their principals, but in their own names, and accepted bills drawn on them on the goods which were consigned to them, and lost before their arrival, held, that the broker might set ofT such losses against the assignees of the bankrupt underwriter, though there was no commission del credere, nor any adjustment. 5. The main point in all these cases is, that bankruptcy determines agency, and vests all the bankrupt's rights in the assignees ; and that the broker acted under a del credere commission, cannot be in any other situation with respect to a third person than he would be without it ; but that wherever all the deal- ings are between the underwriter and broker as principal, and the underwriter knows him in no other character, there the rights of a principal attach upon him. In the case of Housten, Executor, v. Robertson, [a] the Court of Common Pleas, in conformity to the principle of all the above decisions, held tliat death was to be put on tlie same footing as bankruptcy ; and that as the bankruptcy in the one case caused the authority of the agent to cease, so did death in the other. The interest in the one case became vested in the assignees ; in the other, in the executors. And therefore they held, that in an action by the executors of an underwriter against a broker for premiums due on policies sub- scribed by their testator, the broker could not set ofT returns of premium which became due after the death of the testator. 6. Having now referred to the principal decisions to which the Courts, in the earlier cases, came upon this subject, and to the effect which they held that the bankruptcy or death of die underwriters had upon the running accounts between them and the broker, I shall now proceed to consider the more recent cases in which the effect, which passing die accounts between the broker, the underwriter, and the *assured, according to a known custom of p ^..,_ -. Lloyd's, has in discharging the debt of the underwriter to the latter, ^ ^'^* J been fully discussed and settled. It has been already observed that the insurance broker is agent both for the assured and the underwriter. His duty to the assured is to receive from the (c) 2 M. & S. 112. ((!) 2 M. & S. 423. (a) 2 Marsh. 138. 308 THE ASSURERS, ETC. underwriter the proceeds of the settlement of a loss, and his duty to the under- writer is to pay them, when received, to the assured. Although the policy contains an acknowledgment, that the premium has been paid by the assured to the underwriter, it is not usual for the broker to pay it at the time of making the policy, but the underwriter gives him credit for it, and looks to him for payment, and at that time frequently knows nothing whatever of the assured. But when a loss happens, a debt theii arises to the assured from tlie underwriter, and the latter can only discharge that debt, either by payment to the assured himself, or to his agent lawfully authorized to receive it. Lord Tenter den, in Scott v. Irving, (a) says, "the general rule is, that the broker is debtor to the underwriter for the premium ; and the underwriter is debtor to the assured for the loss." When the broker has made the insurance, he usually remits the policy to the assured, and when a loss occurs, the assured sends it back again to the broker, and thereby renders him his agent to settle with the underwriter. Now the well known rule of law respecting agents receiving money on behalf of their principals is this, that "where a creditor employs an agent to receive money from his debtor, and the agent receives it, the debtor is^'discharged as against the principal ; but if the agent, instead of receiving money, writes off money due from him to the debtor the latter is not discharged." {b) But, in cases of insurance, this general rule of law is relaxed by a usage, amongst merchants, insurance brokers, and underwriters in the city of London, to set off the general balance of the accounts between the broker -, and the underwriter, at the time of the loss, against the loss, and [ *558 J ...^^^ ^j^g broker then to debit himself to that amount in his account wdth the assured ; and that this is considered, by the custom, a discharge, by the underwriter, of his debt to the assured. The Courts have been very slow in sufferino- this usage to infringe the above-mentioned general rule of law, but it now may be considered as decided, that when the usage is within the know- ledge of the assured, and assented to by him, this passing of the accounts between the broker, the underwriter and assured, operates as a payment to the latter, and an extinguishment of the underwriter's debt. Lord Minger, in delivering the judgment of the Court of Exchequer in the recent case of Steiourt v. Merdein, (c) when this subject was fully discussed, concludes in these words : "it must not be considered that by this decision the Court means to overrule any case deciding that when a principal employs an agent to receive money, and pay it over to him, the agent does not thereby acquire any authority to pay a demand of his own upon the debtor by a set off in account with him. But the Court is of opinion that where an insurance broker, or any other mercantile agent, has been employed to receive money for another, in the general course of his business, and where the known general course of business is for the agent to keep a running account with the principal, and to credit him with sums he may have received by credits in account with the debtor, with whom he also keeps running accounts, and not merely with moneys actually received, the rule laid down in these cases cannot be properly applied, but it must be understood that where an account is bond fide settled according to that known usage, the original debtor is discharged, and the agent becomes'' the debtor, according to the meaning and intention, and widi the authority of the principal." _ As the principles of law settled by these cases are of great importance, 1 leel compelled to refer to them at some length. (rt) 1 B. & Ad. 612. {h) Per Lord Tcntorden, in. Russel v, Banglcv, 4 B. & Ad. 398. (c) 4 M. & W. 223. THE ASSURERS, ETC. 309 The first case is that of Russel v. Bangley. (a) It was *an r- jje-rq -, action on a policy o( insurance subscribed by the defendant for L '^ J 150/. The policy was made in October, 1819, by one Savery, a broker, who returned it to the assured. A loss having afterwards happened, the plaintiff delivered it back to Savery to get the loss adjusted. On the 15th of March, the loss was adjusted by the defendant, payable at one month. Savery then made out and transmitted to the plaintiff his account current, in which he made him debtor for various premiums upon former policies, and credited him with 150/., the amount of the loss upon the policy, and the balance due to the plain- tiff on this account was 133/. 45-. For that sum the plaintiff drew a bill at two months on Savery, which the latter accepted. Savery, at the same time, debited the defendant with the amount of this loss in his account. The policy remained in Savery's hands, but the name of the defendant was not cancelled. The bill drawn by the plaintiff became due on the 21st of May, but was not paid, and soon afterwards Savery became bankrupt. It was proved that it was usual in the insurance business for the broker to settle with the underwriter according to the state of the account between them. If the account was against the underwriter, the latter paid the amount of the loss or the balance (after deducting the premium) to the broker at the expiration of the month, but if the account was in his favour, then no money passed to the broker, but the latter debited the underwriter with the loss, and setded the balance of the account at the end of the year. Between the assured and the broker the balance is either paid or carried to the credit of the assured, at the option of the latter. At the trial before Graham, B., at Bristol, the plaintiff was nonsuited, with liberty given him by the learned Judge to move to enter a verdict. A rule nisi having been obtained, after the argument, Abbott, C. J., said, "The general rule of law is, that if a creditor employs an agent to receive money from a debtor, and the agent receives it, the debtor is discharged as against the principal ; but if the agent, instead of receiving money, writes off money due from him to the debtor, then *the latter is not discharged. In cases of insurances, ^ ^nan n usage may possibly introduce a different rule ; but at all events an *- ^ underwriter has never been considered discharged as against the assured, until his name has been struck off the policy. If the underwriter relies on his com- munication with the broker as discharging him M'ithout actual payment of the. money, he should insist that his name should be struck off the policy. If that be done, and the plaintiff then forbears to call upon him for payment within the period warranted by the usage of trade, then the underwriter may be dis- charged, but not otherwise." The rest of the Court were of the same opinion, and the rule for a new trial was made absolute. Todd v. Reid, [b) was decided in the same year with Russel v. Bangley, and previous to it. The case is very shordy reported. And the opinion of Abbott, C. J., expressed at the trial respecting the usage, was afterwards qualified by him (as we have seen) in giving judgment in Russel v. Bangley, and the general terms made use of by the Court must be considered now as inconsistent with the more recent decisions. The next case in order of time, was the important case of Bartlett v. Pent- land, (c) argued in Easter Term, 1830, in which the usage and practice of Lloyd's were brought fully before the Court. In this case likewise, the Court held that the underwriter was not discharged by a setdement with the broker. But the reason of this decision appears to have been that the circumstances raised a strong presumption that the plaintiffs were ignorant of the usage, and (a) 4 B. & A. 395. (6) 4 B. & A. 210. (c) 10 B. & C. 760. 310 THE ASSURERS, ETC. that they merely commissioned Mitchell, tlie broker, to receive for them the loss, and pay it over to them, "stating that he knew better how to act than they, as they never had a loss before," and it was, therefore, impossible for them to be considered to have had such a knowledge of the custom for them to authorize the broker to make such a settlement for them with the underwriter. *The case of Scott v. Irving, (a) was decided in Michaelmas L *^"1 J Term, in the same year. It was an action on a policy of insurance "at and from Gibraltar to Havannah, on a cargo of cottons, by the Union.'" At the trial before Lord Tenterden, C. J., at Guildhall, a verdict was found for the plaintiff, damages 100/., subject to the opinion of the Court, on the following case : — On the 27th Jidy, 1824, a cargo of cotton, the property of the plamtifl, was shipped on board the Union at Gibraltar, to be carried thence to Havannah. On the 3rd September, 1824, the plaintiff, who resided at Glasgow, wrote to Mitchell, an insurance broker at Lloyd's, to get 100/. insured; and accordingly the defendant, an underwriter at Lloyd's, subscribed the policy on which the action was brought, and which stated, on the face of it, to be made by Mitchell, agent, on the cotton by the Union, "at and from Gibraltar to Havannah, for 100/., at a premium of six guineas per cent." The policy was in the usual printed form, and contained an acknowledgment that the premium had been paid by the assured to the underwriters. An account had, for several years, been kept between the defendant and Mitchell, in the usual way in Avhich accounts between underwriters and brokers are kept, in conducting business at Lloyd's, and Mitchell was debited in this account for the premiums on the said policy. The Union was afterwards lost. When this became known to the plaintiff, he gave Mitchell directions to obtain a settlement of the loss, and Mitchell laid the policy and papers before the defendant, and other underwriters on the policy, at Lloyd's, in the ordinary course of the business there. After some delay, the defendant, on the 8th March, 1826, signed his initials to the following adjustment of the policy : — "Settled a loss of 100/. per cent, on this policy, payable in a month;" and the defendant at the time struck his pen through his subscription to the policy, and also through his initials of the settle- ^ 1 '"^"^ °^ *^ ^^^^' ^" ^^^ *^^^^^ March, 1826, the defendant and [ '562 J lyijtgj^ell had an account then standing between them. In that account Mitchell was debited 46/. for various premiums, and 100/. was placed to his credit on account of the loss per Union. The defendant paid Mitchell 54/., and took a receipt for that sum, stated to be the balance of loss per Union. There were no transactions between the defendant and Mitchell after this settie- ment. On the 3rd ^pril, 1826, Mitchell wrote to the plaintiff that he had got the last underwriter on the policy to sign it ofl", and enclosed a statement of the account, balance 554/. 7s. to the plaintiff's credit for which he was at liberty to draw in the usual way. In the account in the letter, the plaintiff had a credit of 700/. loss by the Union. On the 7th ^pril, the plaintiff drew on Mitchell, at ten days' sight, for 554/. 7s., stating at the same time, by letter, that he did not know at what time it was usual to draw for such a balance, this being the first total loss he had ever had in London. Mitchell refused to accept the bill, and, on the 15th .^pril, wrote to the plaintiff, stating that he could not, under any circumstances, have accepted it, unless drawn by per- mission ; but, that, in consequence of difReulties, he had been compelled to suspend payment. He further stated : — "The custom of Lloyd's Coffee House is to wait one month after the loss is signed off, and then draw at three. When the underwriters sign off, it is to pay in one month, and is generally settled («) 1 B & Ad. 605. THE ASSURERS, ETC. 311 when the accounts can be made out and agreed; but it often happens, that a broker has little or no part of the loss to receive, as the underwriters may have sufficient premiums at their credit to cover the loss. Of the loss per (Jnion^ I have received 208/. from the underwriters ; and it is a matter of great regret to me that I received any of it." Evidence was given, on the part of the defendant, that it is not usual for the broker to pay the premium on making the policy ; that an account is kept between the broker and underwriter to the end of the year, when they strike a balance, averages, deductions, and returns, being placed to the ^ ^^m "i credit *of the broker; but losses, if they exceed the amount due L J from the broker at the time when they are known, are settled before the end of the year; and on that settlement the amount due from the broker for pre- miums up to the date of the knowledge of the loss is set against the loss. On adjustment of losses, payment is generally made in about a month, but some- times the underwriter pays sooner. The month is an indulgence to the under- writer. The assured may interfere by himself or by another broker. If a broker who has not made the policy comes to settle the loss, the authority of the principal is required. It is a general practice for the broker to charge the merchant witli the premiums up to the expiration of the month allowed by the underwriter, and accept a bill at three months for the balance. After the argu- ment at tlie Bar, in which the preceding cases were referred to, Lord Tenlerden, C, J. — "I am of opinion that the plaintiff is entitled to recover the sum of 46/., the amount of the premium due from the broker to the underwriter, and allowed in account with them ; but not the sum of 54/., which was actually paid in money by the defendant to the broker. The general rule is that the broker is debtor to the underwriter for the premium, and the under- writer debtor to the assured for the loss. If the usage relied upon in this case were allowed to prevail, it would have the effect of making the broker, and not the underwriter, the debtor to the assured for the loss. Such a usage, however, can be binding only on those who are acquainted with it and have consented to be bound by it. There may, possibly, be cases proved where an assured, cognizant of such usage, may be supposed to have assented to it, and therefore may be bound. Here no such assent is shown, nor can it be inferred from the delay which has taken place in the prosecution of this claim. If, indeed, in that interval of delay after the receipt of Mitchell's letter of the 15th ^^pril, the relative situation of the underwriter and broker had been changed, as if the underwriter, on the supposition that the loss had been paid, by the allowance of the 46/. on account, had given the broker fresh credit for *other p ^^g . -, premiums in account, there might have been ground for contending L J that the acquiescence of the plaintiff should bind him, as the underwriter would otherwise have been prejudiced. As to the sum of 54/., which was actually paid in money by the underwriter to the broker, I think the plaintiff is not entided to recover that sum. The ground upon which he claims it is, that the underwriter, by his adjustment, having stipulated to pay in a month, could not discharge himself against the assured by payment to the broker before the end of the monlli. But the authority given by the plaintiff to the broker was a general authority to receive payment in money. The plaintiff, therefore, is bound by the payment so made to the broker, and the verdict must be reduced to 46/." The rest of the Court concurred. This subject was again brought before the attention of the Court, in the recent case of Steivart v. Merdein, (a) in the Exchequer, to which I have before referred. In this case the Court thought that there was sufficient evi- (a) 4M. «Sc W. 211. 312 THE ASSURERS, ETC. dence of a knowledge in the plaintiff of the usage between the broker and under- writers, to make settlements in account, by taking credits in payments. And they held that the underwriter was thereby discharged. At the trial before Lord Minf^er, at Guildhall, it appeared that the policy was made on the 26th of Scplember, 1835, and the defendant was an under- writer upon it for 100/. The loss appeared on JJoycrs books, in May, 1836. At the time of the loss thus appearing, Douglas, Anderson Sf Co., the insu- rance brokers, were indebted to the defendant in a balance of 217/. 3s. 8f/., on their underwriting account of the previous year, up to March, 1836 ; and in the month of June, their clerk ngreed this account with the defendant's clerk, and paid him the sum of 100/., leaving 117/. 3s. 8r/. on the account, which was retained to meet the loss on the Vrow Elizabeth. The loss was adjusted on the 20th of September, hj the defendant and all the other underwriters, r *rRt\ ~\ *except two, at 97/. lis. 8f/. percent. A memorandum was then L "^ J written on the policy, stating the loss to be payable at one month, and the defendant's subscription was struck through, and the loss was then passed into tlic accounts between Douglas, Jlnderson 8,' Co., and the defend- ant, in their respective books, but the account was not formally agreed between them. The plaintiffs had for several years employed Douglas^ Anderson 4' Co., as their brokers, for making insurances in London, and the latter had a general account current, as well as an insurance account, with the plaintiffs ; each being kept quite distinct, and the balance of the insurance account being at certain periods carried into the general account as cash. The further infor- mation required by the two underwriters being laid before them in the early part of November, Douglas, Anderson fy Co., advised the plaintiffs of the loss being about to be settled by them, the plaintiffs drew two bills for 600/. cash, on the 16th and 17th of November, and on the 19th of November, Douglas, Anderson <§• Co., enclosed them a credit note for account of the set- tlement of the whole loss, the amount of which (1 155/. 3s. lOf/. ) they, Douglas, Anderson 8,' Co., carried to the credit of their insurance account, of which they sent an extract, and they debited the plaintiffs to the end of September, leaving a balance of 886/. 12s. Id., due on 21st oi February, in the plaintiff's favour, which they transferred to the credit of the general account. At the bottom of the credit note was written, "Above is the credit note of the loss per Vrow Elizabeth, 1155/. 3s. lOc/., but without our prejudice, until in cash from the underwriters." On the 21st, 1836, the plaintilfs acknowledged the receipt of these accounts, and stated that they would be examined. On the 26th of November, Douglas, Anderson S)' Co. stopped payment, and as soon as the plaintiffs were aware of this circumstance, they demanded payment of the underwriters, and, amongst others, of the defendant, which being refused, the present action was brought. At the trial, several insurance brokers were r *fififi 1 ^'I'l^'J' ^^'ho stated the usage at Lloyd^s as to *setdements between L -^ the underwriters and brokers to be such as were stated in the former cases, and it was also stated by some of them to be well known at Liverpool, as well as in London. It was contended for the plaintiffs, on the authority of Russel v. Bangley, and Scott v. Irving, that the set-off between the brokers and the underwriter was not binding on the plaintiffs, who were not expressly shown to have any knowledge of the usage ; and also that the memorandum at the foot of the credit note showed that the brokers did not treat the settlement as being conclusive, as a payment to them from the underwriters. The Lord Chief Baron, in summing up, expressed his opinion that the notion had been pushed too far about the actual payment in cash, and that it appeared to him that if one man has to pay another money on account of his principal, and there is money due to him from such other person, it makes no difference to the principal whether there is an interchange of bank notes, or a THE ASSURERS, ETC. 313 mere transfi;r of accounts from one side to the other, and that it is equally a payment, if it be done without fraud. He, however, left the whole facts to the jury, and directed them to consider whether parties making insurances for their own benefit through an agent, must not know what is the habit of dealing between the broker and the underwriter ; and whether the authority to settle must not mean that the broker should settle in the same way as is the custom to settle with underwriters With respect to the memorandum at the foot of the credit note, his Lordship tliought that all which it imputed was this, — that inasmuch as the account had not then been adjusted by all the underwriters, the broker allowing the assured to draw for the whole amount of the loss in the meantime, did so without prejudice to their rights, in case the others should not pay or settle on account with them. The jury found their verdict for the defendant. A rule 7iisi having been obtained for a new trial, after the argument at the Bar, the Court took time to consider their judgment, which was after- wards delivered by Lord Minger, C. B. His Lordship, *after p ..-p^ -, detailing the facts of the case, said, "The Court has taken the •- -• whole argument into full consideration, and has come to the conclusion, that there was evidence of the settlement in account; that there was no misdirection upon the letter, the meaning of which, as part of a mercantile correspondence, was left to the judgment of a jury of merchants, nor was it material to the issue ; and finally that even if the custom was not specifically proved as alleged, or if it was not proved that the plaintifl's had a precise knowledge of the custom as alleged, yet there was sufficient evidence of a custom between the brokers and underwriters, to make settlements in account, by taking credits as payments, and also of the knowledge of the plaintiffs of such a custom, and of their author- izing the brokers to settle with the underwriters, and to give them, the plain- tiffs, credit on account for the loss, and to permit them to draw on the brokers for the amount." His Lordship then went on to say, that by this decision the Court must not be considered as overruling any case deciding that where an agent is employed by his principal to receive money, and pay it over to him, the agent does not thereby acquire any authority to pay a demand of his own upon the debtor, by a set-ofi' in account with him, and concluded by laying down the general rule in the terms I have adopted at the commencement of this inquiry, [a) In the case of Gibson v. Winter, {b) (which was decided before the case of Stewart v. Abcrdein) in which a broker in whose name a policy of insurance under seal was made, brought an action of covenant, and the defendants pleaded payment to the plaintiff according to the term and effect of the policy, and the proof was, that after the loss happened, the assurers paid the amount to the broker by allowing him credit for premiums due from him to them, it was held, that although this was no payment as between the assured and the assurers, it was a good payment as between the plaintiff on the record and the defendants; for a trustee suing as a ^plaintiff in a Court of Law, must be treated r- ^^.0.0 -\ in all respects as a party to the cause, and any defence against him L J is a defence against the cestui que trust who uses his name. But the principle of law, whereby the setting off a debt from the broker to the underwriter has been, under the above-mentioned circumstances, held to operate as a payment to the assured by the underwriter, is altogether dependent on the circumstance of the broker being agent to the assured, as well as to the underwriter. And, therefore, in tlie case of Jicey v. Fernie, (c) on a policy of assurance on a life, when the premium became due on the 15th day of March^ but was not paid (a) See pag 558. {h) 5 13. & Ad. 96. (c) 7 M. & W. 151. 314 OF FRAUD IN POLICIES. until tlie 12th oi Aprils when the country ajrent of tJie insurance company gave a receipt for the amount; and the instructions given by the company to the awent were, "that the premium on every hfe policy must be received within fifteen days of the time of its becoming due ; and if not paid within that time that he was to give immediate notice to the office of that fact, and in the event of his omitting to do so, that his account would be debited for the amount after the fifteen days had expired : and no notice was given to the company of the non-payment of tlie premium within the fifteen days, and it was, therefore, entered in the books of the company as paid on the 15th of March, and the agent was debited for the amount; it was held by the Court of Excliequer that the debiting the agent witli the premium could not be considered as a payment to the company by the assured." Lord Miniver, C. B., said, "The Court concurs with me in thinking the verdict must be supported, and that this rule, therefore, cannot be granted. Sir F. Pollock says very truly, that at the trial I entertained an impression somewliat favourable to his view of the case; but that was at the time we were considering whether the agent of the company mio-ht not be made the ao-ent of the assured ; and in that view of the case, if it were understood that payment was to be made by the agent, and there was an r '^CQ ~i agreement on his part *to advance the money, then it might be L J considered as a payment on the day when it became due ; but there was no evidence to shew that the country agent of the company was the agent of the assured, and I was of opinion that he could not so be considered. It seems to me that the provision that he should be debited as if the premium was paid, was to operate as a penalty on him ; but does not authorize third per- sons to take advantage of that which was a mere private arrangement between the company and their agent, for the purpose of insuring the due payment of all moneys which were to be received by him." PAl^T IT. [ *570 ] *SECTION THE FIRST. OF FRAUD IN POLICIES. I HAVE endeavoured in the preceding pages of this Treatise, which make up Part I, to perform the task which I proposed in the introduction to this subject, to go through the policy, sentence by sentence, from the beginning; thinldng that to be the best method of treating every part of the contract, as well as to render tlie reference to tlie respective principles which are laid down, more easy to the student and to the practical lawyer; the first part contains the contract itself, which exists between the assured and the assurer ; and we might have stopped here, if bona fides and propriety and regularity of acting between the parties, to this or to any contract, were always to be found. Unfortunately the law in most cases relating to express or implied contracts or the parts of the contracts has more than one object to keep in view, not only to explain clearly what is in fact the real state of the contract between the parties ; but it has likewise to point out in what cases, and for what causes the policy is void, either from some impropriety or negligence on the part of either or both of the parties, and in some, it is needless to disguise it, the wickedness and the fraud, also, either of the one, or of both. OF FRAUD IX POLICIES. 315 To leave lliese general observations, and to come at once to the contract that forms the subject of our present inquiry. These imperfections in the transac- tions of life between man and man, will in this instance, lead us naturally to inquire in what cases the assurer may be relieved and discharged from his responsibility: either on account of the contract being *void by ^ ^ _. law, from its commencement, if, I mean, it is illegal, the assured L ' J cannot recover according to the terms of it, and the assurer must generally give up the benefit which he expected. The late Mr. J. Park commences this part of his subject with some very sensible and suitable remarks, it is on his com- mencing his chapter upon ''Fraud in Policies," (a) he says, "in treating of those causes which make policies void from the beginning, or in other words, which absolutely annul the contract, it will be proper, in the first place, to con- sider how far it will be alFected by any degree of fraud. In every contract betwixt man and man, openness and sincerity are indispensably necessary to give it its due operation ; because fraud and cunning once introduced, suspicion soon follows, and all confidence and good faith are at an end. No contract can be good, unless it be equal ; that is, neither side must have an advantage by any thing of which the other is not aware. This being admitted of contracts in general, it holds Avith double force in those of insurance : because the under- ■writer computes his risk entirely from the account given by the person assured, and therefore, it is absolutely necessary to the justice and validity of the con- tract, that this account be exact and complete. Accordingly, the learned Judges of our Courts of Law, feeling that the very essence of insurance consists in a rigid attention to the purest good faith and the strictest integrity, have con- stantlv held it is vacated and annulled by any the least shadow of fraud or undue concealment." And the learned author finishes these admirable obser- vations by quoting autliority for them from distinguished writers and jurists as well as laws. (6) One plain illustration of these principles is this, if the con- tingent event has happened at the time of the execution of the policy, to the knowledge of one party only, the policy is void on the ground of fraud. If the loss of a vessel has happened at the *time of the execution of p $^79 -1 the policy to the knowledge of the assured, or if the underwriter L -• knows at the time of his subscribing the policy of the safe arrival of the vessel, it is clear, that in both of these cases the policy would be void on the ground of fraud. In the case of Mead v. Davison, (a) Lord Denman says, "the case of the Earl of March v. Pigot, [b) is a direct authority in principle in favour of the right to recover, if the loss was known to neither party at the time of making the insurance. According to the same case, and indeed on the plainest general principles, if the loss had been known to the assured alone the policy would have been void." There appears to be three distinct cases, in which the policy may be rendered void by the assured or his agent: and as an agent is nearly always employed by the assured in this contract, the rules respecting agents will apply here, where the agent makes himself personally liable, but if he only acts on the false instructions received from the assured, the latter will of course have to suffer : but the rule will serve to apply to either. The ist is, "Where he has made some statement which he knew to be false." (c) (d) Park Ins., vol. i. chap. x. page 403. (6) 4 Black. Com. 460; Grot, de jure belli, lib. 2, c. 12, s. 23; Puff, de jure nat. lib. 5, c. 9, s. 8 ; Bynk. quest, jur. p. iv. lib. 4, c. 26; Ord. de lou. 14, s. 38; I Black. 594; 3 Burr. 190-5; Carter v. Boehm. (a) 3 A. & E. 303. {b) 5 Burr. 2802. (c) See Polhill v. Walter, 3 B. & Ad. 114. 316 OF FRAUD IN POLICIES. The 2nd is, "Whore he has stated somelliiiig as true which lie did not know to be true, oniittinjr, at the same time, to r,q -i accompanying the policy restrained the voyage to the limits therein L -' specified. They produced some letters from the owners to their correspondents, one of which was to the following effect: — " We doubt not, but on account of the storm the ship will be forced to go to Bengal to be laid down, which cannot be done at Pondicherry, in which case our captain will have entered a protest, which we will forward in time to you." In a subsequent letter they say nothing of the storm or leak ; but mention a diflerent cause for the ship's going to Bengal. These letters, it was said, raised a presumption that the necessity of going to Bengal was merely a pretence devised after the capture, and when the insured began to apprehend that the words of the policy would not cover a voyage to that place. Lord Mansfield told the jury, "that the first question was, whether the policy was void, on account of misrepresentation.^ Now there is an essential difference between a warranty and a representation. The warranty is a part of the contract : a risk described in the policy is part of the contract. There can be no warranty by any collateral representation. The ground on which a representation atfects a policy, is fraud, the representation must be fraudulent, that is, it must be false and material in respect to the risk to be run. All risks are governed by the nature of them ; and the premium is governed by the risk. Where a representation accompanies an instrument, it says, "I will have this understood as my present intention : but I will have it in my power to vary it." The great question in this cause is, whether the representation was false, and that in a material instance.^ Fraud is found out by the materiality of the point it is charged in. It is to be considered, then, whether they had really a view of going to China. A witness has proved that the dilference of insurance is one per cent, on going to Bengal, and not to China. If you think that this was a misrepresentation to avoid paying the one per cent, you will find lor the defend- ant. But if you are satisfied that the real intention, at the time of p ^a-itx -\ *the representation, was to go to China, the plaintiff will be enti- L J tied to your verdict : for the insured may change his intention, to go to Bengal, and yet be protected by the policy, which clearly admits of that voyage, and Vol. VIL— X 336 OF FRAUD IN POLICIES. must l)e understood Iiy botli parties in a creator latitiidp than tlio representation, beiiic expressed in diHerenl and much juorc coniprelicn.'^ivc terms. If, upon the \v\\o\e evidence, you shall be of opinion, that no fraud was intended, and that the variance between the intcinded voyage, as described in the slip of paper, and the actual voyage as ])erfornicd did not tend to increase the risk to the underwriters, tliis slip of paper being only a representation, you must find for the plaintifl". " The jury found a verdict accordingly. And although in several caiiscs upon the sanu! "ship, new trials were moved for, and granted; yet in this, which was the only cause in which tliere was a rejjresentation, the verdict was acquiesced in, and no motion respecting it ever was made. («) In a previous part of this section it was laid down, [b) as that if a represen- tation be made to tlie underwriter of any circumstance which was fiilse, this, if it be in a material point, shall vacate the policy, and annul the contract, although it happened by mistake, and without any fraudulent intention or improper motive on the part of the insured. In the case of Macdoivall v. Fraser, {c) which was an action on a policy of insurance on the ship "The Mary and Hannah, from New York to Philadel- phia.''^ At the time when the insurance was made, which was in London, on the 30th of January, the l)roker represented the situation of the ship to the underwriter as follows : "The Mary and Hannah, a tight vessel, sailed with several armed ships, was seen safe in the Dchncare on the 11th of December, by a ship which arrived at New York.'" In fact, the ship was lost on the 9lh ^ 1 oi December^ by running against a cheveait de frieze, placed *across L """'^ J the river. The cause came on to be tried before Lord 7^/an.s/?e/(/ at GuildhaU. The defence was founded on the misrepresentation as to the time when the ship was seen ; and the representation and the day of the loss being proved, the jury found for the defendant. A rule was obtained on the part of the plaintiff, calling upon the defendant to show cause why there should not be a new trial. After argument at the Bar, Lord Mansfield said: — "The distinction between a warranty and a repre- sentation is perfectly well setded. A representation must be fiiir and true. It should be true as to all that the insured knows ; and if he represents facts to the underwriter, without knowing the truth, he takes the risk upon himself. But the difference between the fact as it turns out, and as represented, must be material. The case of the Julius Cxsar was very different from this, [d) The ship there was only fitted out when the insurance was made. No guns nor men were put on board. It was only said what was meant to be done ; and Avhat was done, though different, was as advantageous, or more so, than what had been represented. There was no evidence of actual fraud in the present case, and no question of that sort seemed to be made. But there was a positive averment that the ship was seen in the Delaivure, on the 11th of December. The underwriter was deceived as to that fact, and entered into the contract under that deception. There was no evidence at the trial when she was seen in the Delaware, or in what condition : but suppose the fact had been explained in the manner now suggested, why did the insured take upon him to compute the day of the month on which she had been seen.'' Why did he not mention exactly what his information was, and leave the underwriter to make the computation. In insurances on ships at a great distance, their being safe up to a certain day is always considered as a very important circumstance. I am of opinion that the representation concerning the day was material." (a) See Weston v. Eames, 1 Taunt. 115. Robertson v. Majoribanks, 2 Stark. 573. (Jb) Page 572, and ante, p. 589, by Lord Mansfield, in Carter v. Boem. (c) Doug. 260. {d) Vide ante, the case of Pawson v. Watson, p. 602. OF FRAUD IN POLICIES. 337 *A similar decision was made by the same learned Jiidses at a r- ■„, period subsequent to that of tlie case of Macdoivall and Frascr in L " ^ j the case of Shirley v. Wilkinson, (a) Upon a motion for a new trial, Lord Mansfield and the rest of the Court Avere clearly of opinion, that if the broker, at the time when the policy is effected, in representing to the underwriter the slate of the ship, and the last intelligence concerning her, does not disclose the whole, and what he conceals shall appear material to the jury, they ought to find for the underwriter, the contract in such case being void; although the concealment should have been innocent, the facts not mentioned having appeared immaterial to the broker, and having not been communicated merely on that account. In the case of Barber v. Fletcher, {b) upon a motion for a new trial, one of the grounds stated to induce the Court to grant it was, that since the trial, a material representation, which had been made to Shulbred, the first underwriter upon the policy, and which turned out to be false, had been discovered. Shul- bred made an aff'idavit, by which it appeared, that when he signed the policy in March, 1778, the broker was getting several others, on other ships, sub- scribed at the same time, all belonging to the same owner, and said, speaking of them all, "which vessels are expected to leave the coast of Africa in No- vember or December, 1777." In truth, the vessel in question had sailed in May, 1777, and Shulbred swore, that if he had known that circumstance, he ■would not have signed. There had been actions brought against all the under- writers on the policy, except Shulbred. Lord Mansjield.—^'' It has certainly been determined in a variety of cases, that a lepresentation to the first underwriter extends to the other, (c) But under what circumstances has the defendant gone to trial in this case.^ He certainly knew what had been represented to himself. He was acquainted *with Shulbred, and had an opportunity of asking before the trial p *ftiQ -\ what had been represented to him. If, therefore, this evidence is L J new, it is owing to his own negligence. But the representation is not material; it was only an expectation, and the underwriters did not inquire into the ground of the expectation. This was lying by till after a trial, in order to make an objection if the verdict should be for the plaintiff." The rule was discharged. In the case of Hull v. Cooper, [d) where a policy is made "at and from" a given place, the terms of the instrument seem to import that the vessel is either at the place when the policy is made, or will shortly be there ; and the insured cannot be said to be guilty of deception if the ship be not at the place at the very time of making the policy. If the ship do not arrive for some time, it is a question for the jury, whether the delay materially varied the risk. And where a policy was made on the 13th of August, in London, on a voyage at and from Heligoland to the Baltic, and the ship did not even sail from the Thames on her outward voyage till the 27th, the question was left for the consideration of the jury, who found that the delay was not material. So where a broker, on making a policy whilst the ship was on her outward voy- age, represented that a cargo was ready for her, and that she was sure to be an early ship ; this was held to amount only to expressing an expectation and belief; and the underwriters were held liable, although from the day in loading the cargo the voyage home was changed from a summer into a winter risk. It has been mentioned, that it is immaterial, whether the act be of the assured or of his agent, this was shewn in a case before the House of Lords, of Stewart (a) 3 Doug. 41. (b) 1 Doug. 305. (c) Pawson v. Cowper, ante, p. 60.5. Marsden v. Reid, 3 East, 572. (d) 14 East, 479. Hubbard v. Glover, 3 Camp. 313. See also Brine v. Featherstone, 4 Taunt. 869. Driscol v. Passmore, 1 Bos. & Pull. 200. 338 OF FRAUD IN POLICIES. V. Dunlop. (a) It came before the House on an appeal from the Court of Session in Scotland, which had determined in favour of the respondents, the *R14 -1 ^"^lerwriters. The case was shortly this: — "A man *having L J arrived at Greenock, knowing of the loss of the ship insured, and meeting a friend and intimate acquaintance of the insured, and a partner with him in some other adventurers, communicated the intelligence of the loss of the ship to him, who desired it might be concealed. The same day, as appears by the evidence, the person who had received this information held a conver- sation with the plaintiff's clerk, who made this deposition, that neither at that time, nor at any other time of the said day, hud he any conversation whatever with the said Mr. Boog, or message from him, either in writing or otherwise, relative to the Peggy (the ship insured) nor did he get any hint from him or any other person, relative to the making insurance upon her, further than tlie said Mr. Boog's asking the deponent if lie knew wluitlier there was any insurance made upon her, and if there was- any account of her." After this conversation the plaintiff desired the clerk to write to get an insurance made, which he did, without stating a word (at least it did not ap{)car that he stated any) of this conversation to his master. Upon the whole of the evidence in this cause, although it did not appear by any deposition that the plaintiff knew of the loss of the ship at the time he made the insurance, the Lords of Session decreed, "that the insurance made by the plaintiff would not have been made, if the brigantine Henrietta had not arrived in the road of Greenock the day preceding, and brought intelligence that the ship Peggy was taken : and therefore, that the policy Avas void." The House of Lords confirmed tiiis decree. But in the end of the same year, a cause of Fitzherhert v. Mather, [b) was decided in the King's Bench, expressly upon the point of fraud in the agent ; for it appeared that the insured was not guilty of any improper conduct in the transaction. In that case the circumstances were numerous^ and the Judges gave their opinions seriatim upon the question. io]K, -| It was an action on a policy of insurance for 110/. underwritten [ -615 J ...|^^^ ^j^g defendant on the 21st of September, 1782, at six guineas per cent, on a cargo of oats on board the ship Joseph, lost or not lost, at and from Hartland to Portsmouth, beginnin) Frceland v. Walker, 4 Taunt. 478, and Lewis v. Cormac, 4 Taunt. 483, in notes, and sec Groning v. Crockett, 3 Camp. 83. (c) Edwards' Cases on Licenses, 6. See Evereth v. Tunno, 1 B. & A. 142. OF ILLEGAL VOYAGES. 359 (lieney of such insurances, the question was finally settled, as we have seen by the case of Potts v. Bell, [d) The late Mr. justice Park seems to have thoujjht that the question was settled by the two following cases of Brandon V. Ne.sbitt and Br'isto^v v. Toicers ; [e) but it is clear that there was no direct determination of the question in these cases, having been decided on the short ground of "alienage." *The first of those cases was Brandon v. Nesbiff, (a) which ^ ^„ -, was an action on a policy of insurance on goods on board the L -J Greyhound^ an .American ship, at and from London to Bayonne: there was an averment in the declaration that the policy was eflected for the benefit and on the account of David Brandon, Isaac and David Valery, and others, who were interested in the goods ; and another averment that the ship was captured as prize. The defendant pleaded that the persons in whom the interest was averred to be were aliens born, and that before the ship sailed they were become alien enemies of our king. The second plea stated, that the persons interested were living in France, and enemies, and that the goods were sent from London, after the commence- ment of the war, for the purpose of being landed and delivered in France to the king's enemies, [b) The replication to the first plea stated, that the persons interested were indebted to the present plaintift" in more than the value of the goods insured. The replication to the second, that the goods insured were not prohibited at the time of the policy, and that they were shipped before the com- mencement of the war. To these replications there were demurrers. Lord Kenyon, in giving the opinion of the Court, said, that they had con- sidered this case, and unless anything more could be urged at the Bar to shake the opinion they had formed, they were of opinion tliat judgment must be given for the defendant, on this ground that an action will not lie either by or in favour of an alien enemy. The next case of Bristoiv v. Towers, (c) which came on in the same Term, and was argued upon a special verdict, in which the only point discussed was the legality of insurances on enemy's property ; and the principle of the deci- sion in ^Brandon v. Nesbitt was held so clearly to control the p jiRcj^ -i other, that, on the authority of that decision, the counsel for the L J plaintiff abandoned the second argnment, which the Court had ordered. The special verdict stated that the plaintiff, on the 13th March, 1793, being then resident in Great Britain, in pursuance of an order for that purpose, caused the insurance in question to be made on account of Arrouet, Massot, &c., and that the goods insured were by the policy warranted French property, and were so in fact; that the goods, which consisted of buttons, buckles, &c., of the manufocture of this kingdom, were shipped on board the Nancy, (an Jimer- icrtn ship) on the 19th March, 1793, by Messrs. Humphreys, oi Birmingham, in compliance with orders received in January, 1793, from Messrs. Arrouet, Massot, &c., who were and still are subjects of France; that by two orders in council of 11th February, 1793, general reprisals were granted against the ships, goods, and subjects of France, and a general embargo was laid on all vessels in Great Britain, but by an another order of 26th February, the said general embargo was declared not to extend to foreign vessels belonging to the () 3 A. & E. 306. (c) 3 T. R. 360. OF NON-COMPLIANCE WITH WARRANTIES. 365 to Liverpool,'''' "lost or not lost:" at the bottom of the policy was added "warranted well, December, 9th, 1784." At the trial before Lord Kenyan, at Guildhall, it appeared that the underwriter underwrote die policy between one and three in the afternoon, and that tlie ship was lost about eii.dit o'clock that morning-. A nonsuit was entered, with liberty to the plaintiff to move to enter the verdict for him: hoxd Kenyan, "The single question is, whether the warranty at the bottom of die policy means at the time when the defendant subscribed it, or any time that day.? And we are all of opinion, that if the ship be well at any time that day it is sufficient." Buller, J. — "The nature of a warranty jjoes a great Avay to determine this question. It is a matter of indiflcrence " wliether the thing war- ^ ^^_ ranted be material or not : but it must be literally complied with ; L ""'* J and if it be so, that is sufficient. Here the ship was warranted safe on the 9th of December, and there was great reason for inserting those words, because they protected the underwriter from all losses before that day: to which he would have been liable, for the policy was on the goods from the lading on board of the ship." 2. In Pawson v. TVatson, (a) Lord Mansfield said. — "There is no distinc- tion better known to those who are at all conversant with the law of insurance than that which exists between a warranty, or condition which makes part of a written policy, and a representation of the state of the case. Where it is a part of a written instrument it must be performed." And in the same case, in answer to a question put by the counsel for the underwriters, viz : wheUier it was the opinion of the Court that to make written instructions valid and binding as a warranty, they must be inserted in the policy? Lord Mansfield answered that, "most undoubtedly that was the opinion of the Court." And in the case of Lothian v. Henderson in the House of Lords, {b) Mr. J. Chambre, says [c) "At the time when the agi-eement was made, the underwriters had by the terms of the policy a clear right to all the advantages of a warranty that the ship was American, it having been long settled that such a description as is contained in this policy does amount to a warranty." The description in the policy was "upon the goods and merchandises of and in the good ship called the Catharine, an American vessel." And Mr. J. Le Blanc, says, "it has scarcely been denied at the Bar that tlie terms, of this policy, 'of and in the good ship or vessel called tlie Catharine, an American vessel,' amount to an express warranty of the ship's he\\\g American, which was a neutral nation, in the war, nor could it have been otherwise contended for, after the uniform ^current of authorities in which such an p ^ft/.- averment has been decided, or taken for granted to be a warranty, L J as much as if the word ' warranted' had been inserted in the policy, for I take this to be an established proposition that every positive averment or allegation on the face of the instrument, and making a part of the written contract, whether inserted in the body of it. or written in the margin in a line with the body of the instrument, or transversely, amounts to a warranty or condition. And if such allegation be not strictly true die assured cannot recover on the policy to whatever cause the loss be owing, whether the loss be connected with the subject of such warranty, or wholly independent of it : for it is a condition on which the contract is to take effect, which failing, the contract fads." And this rule of law was decided in the case of Bean v. Stnpart, (a) where the plaintiff insured the ship called the Martha "at and from London to Neiv York,^^ and on the margin of the policy were written these words "eighty (ff) Cowp. 787. See ante, p. 602, where this case is fully reported. (6) 3 B. & P. 499. (c) Page 510. (a) Doug. 11. 366 OF NON-COMPLIANCE WITH WARRANTIES. nine-povmders with close quarters, six-ponnders on her upper decks, thirty- seamen besides passengers." The ship sailed from the Downs on the 1st March and on tlie 10th was taken by an Jlinerican privateer and was sent to make the port o( Boston. On the 30th May, the plaintitl' brought this action against the defendant, on which the defendant paid the premium into Court, and pleaded the general issue. The cause was tried liefore LoVd Mansfield^ and a special jury at GuildhalU at the Sittings after Trinity Term, 18 Geo. 3 ; the defence set up was, that there were not thirty seamen on board the ship according to the stipulation in the margin of the policy : and, in fact, it appeared from the evidence that to make up that number the plaintiff reckoned the stew- ard, cook, surgeon, some boys and apprentices, and some persons learning to be seamen ; and only twenty-six persons had signed the ship's articles. It also appeared that there were seven or eight passengers on board. 1 *I^ord Mansfield observed, in summing up to the jury, that the L """ J import of the words must be collected from the subject to which they are applied. That if, in the present case, the assured had stipulated for thirty seamen besides boys and landsmen, it would have been clear that the terms had not been complied with; but that in this policy seamen were con- trasted with passengers, and, in that sense, the words seemed to include boys as well as men: but he left the construction to the jury. The jury found a verdict for the plaintiff as for a total loss ; the defendant obtained a rule to shew cause wliy there should not be a new trial. On the day for shewing cause, Lord Mansfield, after reporting the facts as above stated, and that he had left the construction of the word "seamen," to the jury, observed, that he thought there was little doubt on the question after what had passed in the case of Paioson v. Ewer. That the warranty might have been so worded as only to include able seamen ; but that, as expresseel here, the contrast being with pas- sengers, the whole of the ship's crew or ship's company appeared to be meant. That was the general maritime sense of the word. After argument at the Bar : Lord Mansfield — "The whole argument for the defendant turns upon begging the question. There is no doubt, but that this is a warranty. Its being written on the margin makes no difference. Being a warranty there is no doubt but the underwriter would not be liable, if it were not complied with : because it is a condition on which the contract is founded. But the question is, whether in this warranty the -word "seamen" was used in the strict literal sense or not. If it was, the warranty has not been complied with. It is a matter of construc- tion. Boys are reckoned seamen, not only at the Custom-house, and Green- wich hospital, but in the distribution of prizes. The special jury and bye- standers were perfecdy clear, they hardly seemed to think it a serious question in this cause. There is scarcely now such a thing as a ship entirely manned with seamen strictly so called. Even on board the king's ships they are satis- P ^(^pm -] fied with a few strict seamen, and able-bodied *landsmen make up L J the rest of the crew. I had no doubt of the sense of the word in this policy, and the jury decided it." In an action tried before Lord Mansfield., of Pau'son v. Barnevelf. at Gidld- hctll, {a) the counsel for the defendant ofTered to produce witnesses to prove that a written memorandum inclosed in the policy was always considered as part, but Lord Mansfield said tliat it was a mere question of law, and would not hear the evidence ; but decided that a written document did not become a strict warranty by being folded up in the policy. And see the case of Bize v. Fletcher, at Guildhall, Easter Vac. 1779. {h) But if a policy refer to certain (ff) Trin. Vac. 1779, Doug. 12, in the notes. \b) Doug. 12, in the notes, ante, p. 608. OF NON-COMPLIANCE WITH WARRANTIES. 367 printed proposals the proposals will be considered as part of the policy, Wors- ley V. JJ^ood in error, (c) See also Ruthdge v. Burrell. (t/) And in the case of Graham v. Barras, (e) where a ship was warranted not to sail "foreiyy J jiQf \^Q ^ j^e^y jj-ial ; the evidence from his Lordship's report appeared to be thus: — That the plaintitTs had called witnesses (one of whom was Mr. Gorman, an eminent merchant) to prove that for some years past, when convoy for the voyage, or the wliole voyage was intended, those explanatory words had been added, and that by this usage, the expressions of "sailing with con- voy," and "sailing with convoy for the voyage," had received distinct technical meanings : "with convoy," signifying whatever convoy the ship should depart with, whether for a greater or less part of the voyage. Several policies were also produced, which had been filled up at the oilice of the same broker, who had prepared that which had given occasion to this cause, in which the words "for the voyage," or "for Ens^land,''' were added. The captain proved, that a,t the time when he left Gibraltar, no other convoy was to be had. The wit- nesses for the defendant swore, that they understood the words "with convoy," to mean, convoy for the voyage ; and the broker said, that, at the time this policy was signed, he understood and apprehended it was so understood by all the parties, that the convoy was to be for the voyage, and that the return was such as was usual, when convoy for the voyage was meant. His Lordship, after stating the evidence, said, "That when the case was opened, he thought, on the face of the policy, that the words must mean for the voyage. He had not admitted the counsel to ask the opinion of the witnesses on the construc- tion ; but to learn whether there was any usage in this case, which Avould give a fixed technical sense to the words. This was a question of fact to be ascer- tained by evidence, and proper for the consideration of a jury." The case was fully argued at the Bar. Lord Mansfield. — "On the words I was strongly of opinion, that the policy meant the departure with convoy intended for the voyage. The parties could not mean a departure with convoy, which might be designed to separate from the ^ 1 ^^^^P *'" ^ minute or two ; though when convoy for the whole of L J a voyage is clearly intended, an unforeseen separation is an acci- dent, to which the underwriter is liable ; for the meaning of such a warranty is not that the ship and convoy should continue and arrive together. But I still think that the evidence was properly admitted at the trial of this cause ; because the sense contended for by the plaintifls, was not inconsistent with the words of the policy, and, therefore, it was material to see what the usage was. I laid great stress on Mr. Gorman's testimony. I did not consider him as a common witness. However, it seems, from what 1 have heard since, that the people in the city are dissatisfied with the verdict, and think the evidence of the plaintiff's witnesses was founded on a mistake. Certainly critical niceties ought not to be encouraged in commercial concerns ; and wherever you render additional Avords necessary, and multiply them, you also multiply doubts and criticisms. It may be hard, because words have been added in some instances, OF NON-COMPLIANCE WITH WARRANTIES. 385 to force a construction in this case, from the omission of them. Tlic question is of great importnnce." — The rule, therefore, was made absolute, («) Even wlicre the ship has by tempestuous weather been prevented from join- ing the convoy at all, at least, of receiving the orders of the commander of the ships of war, if she do every thing in her power to effect it, it shall be deemed a sailing with convoy, witliin the terms of the warranty. In the case of llctorta v. Cfeeve, [b) the plaintiff had insured on goods in the John and Jane, from Goftcnburg to /.ondon, with a warranty to depart with convoy from FIcckcry. In /?////, 1744, the ship sailed from Gottenbicrg to Flrckery, and there she waited for convoy two months. On the 21st of Sep- tember, at nine in the morning, three men-of-war, who had one hundred mer- chant ships in convoy, stood off Fleckery, and made a signal for the ships there to come out, and likewise *sent in a yawl to order them out. There p ^^„, -, were fourteen ships waiting, and the John and Jane got out by '- J twelve o'clock, and one of the first : the convoy having sailed gently on, and being two leagues ahead. It was a hard gale, and by six in the afternoon, the ship came up Avith the fleet: but could not get to either of the men-of-war for sailing orders, on account of the gale of wind. It w-as stormy all night, and at day-break the ship in question was in the midst of the fleet ; but the weather was so bad, that no boat could be sent for sailing orders. A French privateer had sailed amongst them all niirht : and it being foggy on the 22nd, attacked the John and Jane about two, who kept a running fight till dark, which was renewed the next morning, when she was taken. For the defendant it was insisted, that this ship was never under convoy, nor is ever considered so, tiU they have received sailing orders ; and if the weather would not permit the caplain to get them, he should have gone back. But the Chief Justice and the jury were of opinion, that as the captain had done every thing in his power, it was a departing with convoy : and those agreements are never confined to precise words ; as in the case of departing with convoy from London, when the place of rendezvous is Spithead, a loss in going thither is within the policy. So the plaintiff recovered. But it is evident from all that has been said, that if there be an opportunity of convoy ; if the convoy throw out repeated signals to join ; and by the negli- gence and delay of the captain of the insured ship, the opportunity be lost, the warranty to depart with convoy is not complied with, and the underwriter is discharged. Thus in Taylor v. TVoodness, (a) which was an action on *a ^ s^aq -i policy of insurance tried before Lord Mansfield, the plaintiff was •- J nonsuited, there being a warranty to depart with convoy : and it appearing from the evidence, that the commodore of the convoy had made signals for sailing from Spithead to St. Helenas the night before, and had made repeated signals the next morning from seven o'clock till twelve, notwithstanding which, the ship insured had neglected to sail with him and did not sail till two hours after, in consequence of which she was taken by a privateer. Although we have thus seen, that a ship must not voluntarily depart from convoy during the voyage, yet this species of w'arranty must always be con- strued with reference to the usage of trade, and to the orders of government. For if the course upon a particular voyage has been to have a relay of convoy, (a) The new trial came on before Lord Mansfield at the Sittings after Trin. Term, 19 Geo. 3, when the verdict was found for the defendant. Doug. 74, note (7), {h) 2 Sir. 1250. (o) Sit. at Guild. Hil. Vac. 4 Geo. 3. Park Ins. 707. As to the duty of the officers appointed for convoy to merchant ships, see it prescribed in the stat. of the 13 Car. 2, stat. 1, c. 9, art. 17; which regulations were confirmed by the 22 Geo. 2, c. 33, s. 2, art. 17. 386 OF NON-COMPLIANCE WITH WARKANTIES. protecting the trade from one port to another; or if government appoint a con- voy to escort the trade of a place to a given latitude and no farther; and there be no other convoy on that station, a vessel, taking the advantage of such a convoy, has complied with the warranty to sail with convoy for the voyage. Thus in the case of Smith v. Beacbfiaw, (a) which was an insurance on the ship William^ "at and from London to Juniuka,'' warranted to depart wilh convoy for the voyage. Lord Mansfield, in the course of his summing up to the jury, said, — ''A warranty to sail with convoy means with such a convoy as government pleases to appoint; and whether it consists of separate ships at different stations or not, it is a convoy for the voyage ; therefore on that point there is no doui)t. The same doctrine was held by TiOrd Kenyan, in Dc Gara/ v. Claggetl, {b) which was an action on a policy of insurance at and from Cadiz to Amster- dam, warranted to sail with convoy for the voyage. The ships insured had r *7n'i 1 sailed from Cadiz under a Brilish convoy ; and were lost before L -J they "reached die Downs, where it was alleged they were to have taken a fresh convoy for Amsterdam.. The underwriters insisted that the con- voy should have been direct to Amsterdam. The assured, on the other hand, contended, that all convoy must be according to usage, and that in many voy- ages there is no such thing as a direct convoy, I)ut that the vessels proceed by relays of convoy from stage to stage. The special jury, with Lord Kenyon''s approbation, gave a verdict for the plaintids. And altliough in that case, it is true, the underwriter had adjusted the policy willi full knowledge of all the circumstances, which his Lordship seemed to think conclusive, yet there were other causes on the same policy, where there was no adjustment; and upon Lord Kenyan and the jury declaring that, without considering the adjustment, they thought the warranty had been complied with, the plaintiff had a verdict, and no motion was ever made for a new trial in any of these causes. So also the Court of Common Pleas decided in JXEguino v. Bewicke{c) which was an action on a policy on the ship Little Betsey, at and from Zon- don io St. Sebastian, warranted to sail with convoy. The ship sailed with other vessels under convoy of several ships of war : and after a certain latitude, the JVeazel, one of die men-of-war, was detached to convoy the Spanish ships : but the captain of that ship had orders to go with the St. Sebastian ships no further than Bilboa, and in fact he went no farther. A verdict passed for the plaintiff. When die case came on before the Court on a motion for a new trial, it was argued for the underwriters, that warranties are to be stricdy complied with; and that however near the jiort of St. Sebastian might be to Bilboa, yet the principle was the same ; and that a convoy to the latter place could no more be construed to be a convoy to the former, than a convoy to the Cape of Good Hope could be a convoy to the East Indies, and for this was cited Hibbert v. Pigoii. [d) r ^701 "1 *Mr. Justice Buller. — "The case of Hibbert v. Figou is not L J applicable to this, for there a convoy was appointed and actually sailed from Jamaica to England; as to the instance put at the Bar of a convoy to the Cape of Good Hope, I entirely differ from the counsel on that point; for if Government thought a convoy to the Cape was a sufficient protection to the East India trade, and the usage were for the East India ships to sail with a convoy only to the Cape, and to consider tiiat as the East India convoy, and no other convoy was appointed to the East Indies, I should hold that the («) London Sittings after Easter, 1781. Park Ins. 708. (6) London Sittings after Mich. 1795. Park Ins. 708. (c) 2 H. Black. 551. (d) Ante, p. 693. OF NON-COMPLIANCE WITH WARRANTIES. 387 warranty was complied with ; though I agree, if there was another convov to the East Indies, it would be otherwise. The captain of a merchant-ship" has nothing to do with, nor can he know the instructions from the Admiralty to the King's ofhcers, but must take such convoy as he finds. I am, therefore, of opinion tliat there is no ground for this motion." Rule refused. III. The third and last species of warranty which is now to claim our atten- tion, is that of neutrality. This differs from the two preceding ones in this respect, that in?.srauch as in the former the policy was only avoided by the breach, but in this case if the warranty is not complied with, the policy is void in the commencement, on account of fraud. We saw in a former part of this section, that the Judges, in the case of Lothian v. Henderson, [a) had no doubt that when the description in the policy in that case was "on the good ship called the Catharine,'^ an '•'-.^mericun vessel," that this M-as an express war- ranty that she was an American, wliich was a neutral nation in the war. Thus in Woolmer v. Mm/man, (6) on a special case reserved for the opinion of the Court, it appeared that an action was brought for the recovery of a total loss on a policy of insurance made on goods, on board the ship Bona Fortune. at and from North Bergen to any ports or places whatsoever, until her safe arrival in Zon(7o??, "warranted neutral ship and ^property." The p ^-yn- T ship, with the goods so being on board her, after her departure L ' ^ J from Xorth Bergen, and before her arrival at London, proceeding on her voyage, was, by force of the winds and stormy weather, wrecked, cast away, and sunk in the seas, and the said goods M'cre thereby wholly lost. The ship called Z« Bo)2a Fortuna, at and before the time she was lost, was not neutral property, as warranted by the said pohcy. The question was, whether under such circumstances the plaintiff could recover.^ Lord Mansfield, after hearing counsel for the plaintiff, stopped those for the defendant, saying, the point was too clear to be argued. There was a falsehood with respect to the thing insured, for he insured neutral property when it was not so, therefore there is no contract. We must give judgment for the defendant. And in the case of Tabbs v. Bendleback {c) it was held, that an American by birth, who has resided for some years with his family in England, thoucrh himself has been occasionally in America, is so far to be considered as a British subject, that if a ship of his be warranted American property it is not to be deemed so, though the vessel was built in America and registered there, and such a plaintiff in an action upon a policy of insurance was nonsuited. The plaintiffs in the case of Eden and another v. Parkinson, {d) insured the ship the Yoiige Herman Hiddinga, and her cargo, "at and from V Orient to Rotterdam, warranted a neutral ship and neutral property." The ship being captured in the course of her voyage by some English men-of-war, the plaintiffs brought this action against the defendant, one of the underwriters on the policy, stating in their declaration, that the defendant subscribed the policy on the 28lh of November, 1780, and averring that the ship and cargo were at that time neutral property. The trial came on before Lord Mansfield at Guild- hall, when a verdict y/as found for the plaintiffs, subject to the opinion of the Court upon a case stating, that *the ship in question sailed from p ^-'aa "l U Orient, on the voyage insured, on the 11th o{ December, 1780, L ' J having the insured cargo on board, and both the ship and cargo were neutral property at the time of the ship's departure from L* Orient, and so continued until the 20th oi December, 1780, on which day hostilities having commenced (a) 3 B. & P. 499, ante, p. 664. (b) 4 Burr. 1419; 1 Black. 427. (c) 4 Esp. 108, and 3 Bos. & Pull. 207, note S. C. Id) Doug. 732. 388 OF NON-COMPLIANCE WITH WARRANTIES. between the English and the Dutch, the Dutch ceased to be a neutral power, and the ship and cargo ceased to be neutral property. Tliey were taken on the 25th of December, 1780, and condemned as lawful prize, in the Admiralty Court, on the 19th of February, 1781. Lord Mansfield. — "Many points have been gone into in the argument on both sides at the Bar, which are not necessary for the decision of this case. For instance, there is no doubt but you may warrant a future event. But the single question here is, what is the meaning of this policy } I had not a par- ticle of doubt at the trial, and I know the jury had none; but Mr. Lee pressed for a case, and I granted one out of respect to him. What is the case? It is an insurance upon a ship and her cargo, at and from V Orient to Rotterdam. The insured warrant them neutral, and the defendant would have the Court to add, by construction, 'and so shall continue during the whole voyage.' The contract is not so. The insured tell the state of the ship and goods then, and the insurers take upon themselves all future events and risks, from men-of-war, enemies, detention of princes, &c. The parties themselves could not have changed the nature of the property ; but they did not mean to run the risk of the war. If it made a difference what country the property belonged to, the underwriters should have inquired. The risk of future war is taken by the imderwriter of every policy. By an implied warranty every ship must be tight, staunch, and strong ; but it is sufficient if she shall be so at tlie time of her sailing. She may cease to be so in twenty -four hours after her departure, and yet the underwriter will continue liable. The case of Lilly v. Ewer, (d) p *7n7 -] turns quite the other way. The decision *there was, that the ship L -J must sail with convoy, according to the usage of the trade ; that is, convoy destined to go as far as usual in that voyage. The present is the clearest case that can be. The warranty is, that things stand so at the time, not that they shall continue." The postea was delivered to the plaintiffs. And afterwards in a subsequent case of Saloucci v. Johnson, (a) in the course of the argument Mr. Justice Bidler said, "I do not agree with the counsel, who contend, that the property must continue neutral during the whole voyage ; if it be neutral at the time of sailing, and a war break out the next day, the underwriter is liable." And in a still later case of Tyson v. Gurney, (b) which came on for trial before Lord Kenyan at Guildhall, this point was one amongst others saved for the opinion of the Court of King's Bench. But when the case came on to be argued, the counsel for the defendant abandoned the objection upon the author- ity of Eden v. Parkinson, and Saloucci v. Johnson. I now propose to consider the important question which has met with much discussion, viz : how far the Courts of Law in this country have held the sen- tences of foreign Courts of Admiralty, to be conclusive evidence that the pro- perty was not neutral; so as to discharge the underwriters.^ and I shall first refer to some important cases decided in the Court of Admiralty on this point. The first case which I shall mention is that of "The Flad Oyen, Martenson, master," in which judgment was delivered in the High Court of Admiralty, January 16th, 1799. (c) This was the case of an English prize ship carried into a neutral country and there sold under the sentence of condemnation by the French consul, and taken the 12th January, 1798. The claim was given on behalf of the purchaser a Danish merchant. For the claitjiant it was con- tended that there was nothing illegal in a sentence of condemnation in a neutral {d) Vide ante, p. 698. (a) See ante, p. 307, s.nA post. lb) 3 T. R. 477. (c) 1 Rob. A. R. 134. OF NON-COMPLIANCE WITH WARRANTIES. 389 ^country, into which the captors had carried the prize ship : and r- ^ they quoted books of authority on this point, (or) Sir W. Scott L '^^ J now deUvered judgment. "•This is the case of a ship taken by a French privateer and carried into Bergen in Norway, where it appears she underwent a sort of process, which terminated in a sentence of condemnation, pronounced by the French consul ; and under that sentence she is asserted to have been transferred to the present neutral proprietor. The sale was conducted by public auction ; but it appears that the very person who was the purchaser in that case, was likewise the actual seller, and stood in the capacity of general agent, at this place, for the French nation. She was put up to auction, there was no bidder whatever, and she was purchased by himself under the denomination of agent. It appears that the ship was sent immediately to France, which of itself colours the nature of the purchase, and shews that it could not be for a mere Bane, and for Banish commerce ; but on behalf of persons resident in France. It appears, likewise, that he sent this vessel with papers for the island of St. Martins; but in fact, gave verbal directions to the master to get her into the port of Havre, if he possibly could. From the depositions of the master, I think it was entirely with the knowledge of the pretended purchaser that that was a blockaded port, and that there has been a fraudulent intention to break the blockade, which was at the time actually existing. Under these circumstances, I am of opinion, that this does amount to that fraudulent con- duct on the part of the purchaser : which would debar him from the advantage of further proof. I am of opinion that it was no actual transfer but was going to France, as the property of the French captors to be put into their possession, and therefore, on that part of the case I should have little doubt in pronouncing a sentence of condemnation. But another question has arisen in this case upon which a great deal of argu- ment has been employed, viz : whether the *sentence of condem- p $700 n nation which was pronounced by the French consul is of such L J legal authority as to transfer the property, supposing the purchase bond Jide made.^ I apprehend that the general practice of the law is, that a sentence of condemnation is at present deemed necessary, and that a neutral purchaser in Europe during war, looks to the legal sentence of condemnation as one of the title deeds of the ship, if he buys a prize vessel. I believe there is no instance in Avhich a man having a prize vessel of a belligerent has thought himself quite secure, merely because the ship has been in the enemy's possession ' twenty- four hours,' or carried ^ infra presidia.^ The contrary has been more gene- rally held ; and the instrument of condemnation is amongst those documents which are most universally produced by a neutral purchaser, and if she has been taken as prize, it should appear that she has been in a proper judicial form, subject to adjudication. Now in what form have these adjudications constantly appeared.^ They are the sentences of Courts acting and exercising their functions in the belligerent country ; and it is for the first time in the world that in the year 1799, an attempt is made to impose upon the Court a sentence of a tribunal not existing in the belligerent country, but of a person pretending to be authorized within the dominions of a neutral country. Now, it having been the constant usage that the tribunals of the law of nations shall exercise their functions in the belligerent country $ if it was proved to me in the clearest manner, that on mere general theory such a tribunal might act in the neutral country : I must take my stand on the ancient and universal prac- tice of mankind, and say that so far as that practice has gone, I am willing to go; and where it has thought proper to stop, there must I stop likewise. — I (a) Cons. Del. Mare. 287. Vattel, b. iii. c. 7, s. 133. 390 OF NON-COMPLIANCE WITH WARRANTIES. am of opinion upon the whole, that this ship must be restored to the British owners upon the usual salvage." And in the case of The Christopher, (a) in which a British prize ship taken r *7in "I '^y ^'^^ French, and carried into the Spanish *port -i was neutral property. It appears from the policy itself, that the L ' " J ship was neutral, because it is called a Tuscan ship : but the warranty is that the goods are neutral. It must be presumed from the condemnation, as no other cause appears, that it proceeded on the ground of the property belonging to an enemy. In the case of Bernardi v. Motteux, the decision of the Court turned upon the particular ground of the confiscation appearing on the face of the sentence ; and that it did not appear to be on the ground of being enemy's property. This being so, the Court gave the party an opportunity to shew by evidence, that the specific ground was really the cause of condemnation. In this ease, at Guildhall, the counsel admitted the general rule, but they said, if a copy of the proceedings could be had, a special cause would appear. The proceedings are now come ; and from them it appears, that the question turned entirely upon the property of the goods. For in the second Court, to which they appealed from the sentence of the first, the question was, whether the goods were free.^ the decree was, that they were. But the third Court over- turned the decision of the second. It is sufticient, however, that no special ground is stated; and therefore the rule must be discharged." And in the case of Geyer v. Aguilar, [b) if a foreign Court of Admiralty condemns a ship (warranted ^^merican) as enemy's property, for not having on board a role d'' equipage or list of the crew, which is requiied by a French ordinance to be on board the ship, and which the Court of Admiralty adjudged to be requisite within the meaning and construction of the treaty between the two countries of France and Jlmerica, the Court of King's Bench held that the adjudication in France was conclusive against the warranty, that she was an American ship, though in fact she was so, that point being clearly within the jurisdiction of the foreign Court. And where, as in the case of Rich v. Parker, (c) there *has p ^^,_ -. been no sentence of condemnation, if a ship is warranted American, ^ J and sails without such a passport, as is required by the treaty between France and America, the warranty is not complied with, and the underwriters are dis- charged ; even though the ship suffers no inconvenience from the want of it. Such a warranty does not mean merely that the ship is American property, but that she is entitled to all the privileges of an American flag. But in Christian v. Secretan {d) where there was no warranty of being American, a sentence adjudging a ship to be good prize, as belonging to the enemies of the Republic, negatives no fact, which it was incumbent on the (a) B. R. 24 Geo. 3. Park Ins. 727. (/y) 7 T. R. 681. (c) 7 T. R. 703. {(1) 8 T. R. 192. 394 OF NON-COMPLIANCE WITH WARRANTIES. assured, having made no warranty, to establisli ; for the Enp^lhh Courts are only bound by the decretory, or conchiding part of the sentence, and wliere the adjudication is on the ground of enemy's property, are not bound to examine the premises tliat lead to the conclusion. If, indeed, there had been a war- ranty, the adjudication that it was enemy's property would have been conclu- sive against such a warranty. In the case of Dawson v. Jltty, (e) where goods were insured on board the Hermon, without any addition of country or place, and not represented to be of any particular country at the time of subscribing the policy, although the broker, when the slip was subscribed, had said she was an Jlincrican, it was held that, though she was, in fact, an American, she need not, under these circumstances, be documented as such to entitle the assured to recover against the underwriters for a loss by capture, and subsequent condemnation, for want of tlie documents required by treaty between her own and the capturing state; for she was neither insured as American, nor represented to be such at the time when the policy was affected, though her being so was mentioned when the slip was signed. Rut this was an assured on goods, who is not liable on an implied warranty r *718 1 ^° ^^^ ^^^^^ ^'^*^ ^'^'P '^ properly documented : *it is otherwise if the L J owner of a ship is insured. Bell v. Carstairs. (o) But in a subsequent case at Nisi Prins, Lord EUenhoroii p;h thought that a representation made by the insurance broker, when the names are put on the slip, is binding, unless quahfied or withdrawn between that time and the lime of the execution of the policy, Edwards v. Footner. {b) In the cases of Horneyer v. Lushins^ton, (c) and Osivell v. Vigne,'{d) it was held that, if a ship be condemned for having simulated papers, no leave being given to carry tliem, the underwriter is discharged. But it is otherwise if leave be given. Bell v. Bromfield. [e) These cases answer the question of Lord Chief Justice ilfon.v^e/rf, in Steele v. Lacy,,{f) as to the propriety of carrying them. If the ground of decision appear to be not on the want of neutrality, but upon a foreign ordinance, manifesdy unjust, and contrary to the laws of nations, and the insured has only infringed such a partial law : as the condemnation did not proceed on the point of neutrality, it cannot apply to the warranty so as to discharge the insurer. In 31ei/ne v. Walter, {2;) on a policy of insurance, the ship was warranted to be Portuguese, and having been taken in her voyage by a French privateer, she was carried into France. The Court of Admiralty condemned her, because she had an English supercargo on board. It appeared that there was a French ordinance, prohibiting any Dutch ship from carrying a supercargo belonging to any nation at enmity with the Court of France. In an action against the underwriter these facts appeared, upon which a verdict was found for the plain- tiff, subject to the opinion of the Court upon this question, — AVhether the cir- cumstance of having an English supercargo was a breach of neutrality, and whether such a sentence was conclusive ? P *7iq -1 ^horCi Mansfield. — "It is an arbitrary and oppressive regulation, L J contrary to the law of nations, and there is no proof that the plain- tiff kneAv anything of it. If you were both ignorant of it, the underwriter must run all risks ; and if the defendant knew of the edict, it was his duty to inquire (e) 7 East, 367. (a) 14 East, 374. lb) 1 Camp. 530. (c) 15 East, 46. Id) 15 East, 70. (e) 15 East, 364. (/) 3 Taunt. 285. \g) B. R. Easter Term, 22 Geo. 3. Park Ins. 730. OF NON-COMPLIANCE WITH WARRANTIES. 395 if there was such a supercargo on board. It must be fraudulent conceabncnt to vitiate a poUcy. But it is remarkable that neither party has said anylliiuf of the treaties between France, and Portugal; neither party seems to know any- thing about them, and yet the whole case turns upon them." Judgment for the plaintiff. So as in the case of Siffkin v. Zee, (a) if a ship be restored, but damages and costs denied to the claimants, because they had not fully complied, as to their documents, with certain French ordinances, the assured may recover for the detention notwithstanding. So also in the case of Pollard v. Bell^ [b) which was an insurance on goods on board the ship Juliana, "warranted a Dane,'''' on a voyage from London to Tenerlffe, with liberty to touch at Guernsey and Maderia, for account of persons resident at Tencriffe; and tjie loss was declared to be by capture. At the trial, a verdict was found for the plaintiff, subject to the opinion of the Court upon a case which staled that the ship was a Danish ship, and the pro- perty of Danish subjects, and, previous to the voyage insured, had a passport, signed by the King of Denmark., for a voyage from Copenhagen, to ports in the East Indies. Eggleston, the captain of the ship, sailed from Copenhagen, on the 23rd of June, 1796, having on board a cargo of tar, pitch, &e., and arrived in the Thames, according to verbal orders from his owners, 23rd July, 1796. During his stay he took on board goods for the owners, besides those in question, and having taken out clearances for Madeira and Guernsey, sailed, arrived at the latter place, and, after sailing from thence, was captured by a French privateer, and carried into Bourdeaux. At the *time of p #790 -1 the caj)ture, and during the whole voyage, the Juliana had on L J board the passport, and every other document usually carried by Danish ships. She had also a role d' equipage, containinsf the names and places of nativity of the officers, but not of the crew, only stating the latter generally to be sixty men of colour. Captain Eggleston was born in Scotland, of British parents. He was not naturalized in Denmark; but on the 6th of October, 1794, poste- rior to the war between England and France, he obtained letters of burgher- ship in Denmark, but had no domicile, never having resided there. Proceedings were instituted at Bourdeaux, before the Tribunal of Commerce, which condemned the ship and cargo, except one bale, belonging to the captain, as prize. From this sentence Captain Eggleston appealed to the Civil Tribunal of Im Gironde, where there was a general sentence of condemnation. These sentences referred to several French ordinances, particularly the one alluded to in Meyne v. Walter, of 1778, by which it is declared that all ships shall be confiscated "wherever there shall be found on board a supercargo, merchant, commissary, or chief officer, being an enemy." It is not necessary to state these sentences, because the Court of King's Bench were of opinion that the effect of those sentences, and particularly of the ultimate sentence now to be mentioned, was to condemn, not on the ground that the property was not neutral, but because the circumstance of the captain, being a Scotchman, was a violation of thjs ordinance. From the two former sentences the captain appealed to the Supreme Tribunal of Cassation at Paris, which decreed as follows: — "Jiav- ing heard the parties, the Tribunal, considering that it has been fully proved by the confession of Captain Eggleston, and ascertained by the .Tudges of La Gironde, that the said Captain Eggleston was born in Scotland, and an enemy ; that his denization in a neutral country was not justified according to law 5 that his quality of enemy sufficed to legitimate the prize ; that the fact of Captain Eggleston being a Scot and an enemy, existed independently of the papers on (a) 2 N. R. 484. (6) 8 T. R. 434. 396 OF NON-COMPLIANCE WITH WARRANTIES. r *791 1 board; that in consequence *all remedies of nullity drawn either L -J from the withdrawing of some of the papers on board, or from the non-application of the seal to the bag wherein they were inclosed, cannot give any ground to cassation j rejects the request of Captain Eggleston, and condemns him to the fine of 150 francs." After this case was twice argued, Lord Kenyan, C J., said. — '*This is an action on a policy of insurance on goods on board a ship warranted to be a Danish ship : a loss having hap- pened, the defendant resists the plaintiff's claims, because (he says) the ship in question was not what she was warranted to be, Danish: and I agree with the defendant, that the meaning of the warranty was not merely that the ship was Danish built, but tlv.it she ought to be so circumstanced during the voyage as a Danish ship ought to be. This does not appear to me to be a case of difficulty, though it is of great importance to tiie public. This is one of the numberless questions that have arisen in consequence of the extraordinary sen- tences of condemnation passed by the Courts of Admiralty in France during the war. I do not think they were characterised too strongly at the Bar, when it was stated they all proceeded on a system of plunder; but still, until the Legislature interferes on this subject, we, sitting in a Court of Law, are bound to give credit to the sentences of a competent jurisdiction. If, therefore, in this instance, the French Courts had condemned this ship, on the ground that it was not Danish property, we should have been concluded by that sentence in this action, and must (however reluctandy, it being stated as a fact in the beginning of the case that it was a Danish ship) have given judgment for the defendant. This is proved by the different cases cited in the argument, with the decisions in which I concur, and it is supported by reason. To a question asked in the course of the argument, AVhat are the rules by which Courts of Admiralty profess to proceed? — I answer, the law of nations, and such treaties as particular states have agreed should be engrafted on that law. It was said, P *79o -1 however, by the defendant's counsel, that an arret has the same L "^ J force as *a treaty; but, without stopping to enlarge on the differ- ence between them, it is sufficient to say, one is a contract made by the con- tracting parties, and the other is an ex parte ordinance made by one nation only, to which no other is a party ; and I concur with Lord Mansfield in opinion, that it is not competent to one nation to add to the law of nations by its own arbitrary ordinances without the concurrence of other nations. That is the ground on which this case must be decided. Now let us see what was the foundation of the condemnation in the French Courts.^ It is stated in one of the sentences that, by their own ordinances, all ships are to be confiscated, "whensoever on board these ships shall be found a supercargo, merchant, com- missary, or chief officer, being an enemy." But I say they had no right in making such an ordinance to bind other nations. Then was the ship in ques- tion condemned on the ground that she was not Danish property.'^ Certainly not. A vast variety of circumstances, wholly irrelevant, are set forth in the sentences ; but it appears, beyond all doubt, that the ship was at last condemned on the ground that the captain was one of those persons whom, by their own ordinance only, they wished to proscribe. This case cannot be distinguished from that of Meyne v. Walter, [a) though, even without the authority of that case, 1 should have had no hesitation in deciding in favour of the plaintiff". On the whole, therefore, I am of opinion, that though, if contrary to justice, the ship had been condemned, simply because she was not a Danish ship, we should have been concluded by that sentence, yet as the Courts abroad have endeavoured to give other supports to their judgments which do not warrant it, (a) Ante, p. 718. OF NON-COMPLIANCE WITH WARRANTIES. 397 and liavo stated, as the foundation of the sentence of condemnation, one of their own ordinances, which is not binding on oUier nations, this sentence does not prove that the ship in question was not a neutral ship : and, consequently, the plaintiff is entitled to recover." ^Laivrence^ J. — "The question is, whether the sentence has p ^~oq negatived the warranty of neutrality ? The warranty of neutrality L '-•> J does not induce any necessity to comply with the peculiar regulations of the belligerent powers. For if a ship be captured, and the question be, whet'ier she be neutral or not, the general rule for judging and deciding on that point is the law of nations, subject to such alterations and modifications, as may have been introduced by treaties : but where the law of nations hns not been varied or departed from by mutual agreement, that is the general rule for deciding all questions on matter of prize. This is clearly laid down in a state paper signed by Sir George Lee, Dr. Paul, the King's Advocate, and Sir D. Ryder and Mr. Murray, the Attorney and Solicitor General, in answer to the Prussian memo- rial concerning neutral ships. ( t should be sued or commenced against either of the said corpora- L J tions upon any such policy of assurance under the common seal of such cor- poration for the assuring of any ship or ships, goods or merchandises, at sea or going to sea, it should and might be lawful for the said respective corpo- rations, in such action or suit, to plead generally, that they had not broke the covenants in such policy contained, or any of them ; and if thereupon issue should be joined, it should and might be lawful for the jury, if they should see cause, upon the trial of such issue, to find a verdict for the plaintiff or plaintiffs in such suit or action, and to give so much, or such part only of the sum demanded, if it be an action of debt, or so much in damages, if it be an action of covenant, as it should appear to them, upon the evidence given upon such trial, such plaintiff or plaintiffs ought in justice to have." (a) 2. Wherever the contract of insurance is entered into with a private under- writer, it is done by the insurer merely subscribing his name to the instrument, which is no more than what is called a simple contract ; the remedy for a breach of which is by an action of assumpsit, or an action upon the case founded upon the promise and undertaking of the insurer. 3. When a number of actions are brought upon the same policy, it is a con- stant practice (b) to consolidate them by a rule of Court, or by a Judge's order, which restrains the plaintiff from proceeding to trial in more actions than one, and hinds the defendants, in all the others, to abide the fate of that one : but this is done on the condition that the defendant shall not file any bill in equity, or bring any writ of error for delay. The Court will likewise, upon a proper ground being made by the plaintilT, impose any other terms on the defendants which under all circumstances appear reasonable : as that they shall produce at the trial all books, *papers, &c., in their custody, material to the ^ ^.^q^. -| point in issue : that the defendant, in the action to be tried, shall ■- J admit his subscription to the policy, the interest of the assured, the loss, or any other fact upon which the question intended to be tried does not turn, or which is not meant to be seriously disputed. But the Court will not impose any terms on the defendant, out of the ordinary course, M'ithout his consent, which, however, a defendant who only means to litigate fairly will not refuse, when it is only to save the trouble and expense of proving facts which are not disputed. And, on the other hand, the Court will impose any reasonable counter terms on the plaintiff which the defendant may have to propose, (c) (c) By the 39 Geo. 3, c. 83, the Globe Insurance Company was incorporated, and by the 9th sect, the same pleas and the same power to the jury to assess the damages, are given as in the case of the Royal Exchange and London Assurance Companies, and in other cor- porate Insurance Companies. (a) 11 Geo. 1, c. 30, s. 43. And by Reg. Gen., Trin. Term, 1 Vict, the words "by statute" must now be inserted in the margin of the plea. (6) See ante, p. 681, in the oase of Thelluson v. Staples. (c) See March, vol. 2, ch. 16, s. 4. Vol. VII.— D 2 432 OF THE PROCEEDINGS IN THE ACTION. It was formerly thought that a consolidation rule bound the plaintifT as well as the defendant, and that the Court or Judj^c could not, thougii fresh evidence had been discovered, permit the plaintiff to try tlie other actions. IJut the con- trary has now been decided in llie case of Doijle v. JJovglas, [b] in which a consolidation rule had been entered into, whereby ten of the defendants agreed to be bound by the verdict in the first aclion, Doijlr. v. Dallas, to make certain admissions, and bring no writ of error, and file no bill in equity for delay ; and the proceedings were to be delayed in the last ten actions till after the trial of the first. Thl' defendant had the verdict, and judgment was signed, and execu- tion issued for the costs. No levy was made, as the jdaintilf's goods were moved out of the way. The case of Dorjle v. IJoui^laa being set down for trial, a rule was obtained to show cause why the proceedings in Doyle y. Dow^las shoidd not be; stayed till the plaintifT should have paid the costs in Boyfe v. Dallas^ and why the defendant should not be allowed to issue execu- tion. Per Curiam. — "To grant this rule, would be stretching the authority of the -, Court farther than we are entiUed to *carry it. By the practice [ 788 J (.Qj^tcnJ^j^i fo,.^ the plaintilT, as well as the defendant, would be bound by the consolidation rule. The defendant may issue execution, but the cost of the rule must be discharged." (a) And in the case of Doyle v. .finder son: Doyle v. Stewart, [b) where a plaintiff brings several actions upon the same policy of insurance against several underwriters, the Court will not, witliout the consent of die plaintifT, make a consolidation rule upon the terms of both plaintifT and defendant, being bound in all the actions by the event of one. The ('ourt saying, "that they could not force a party to accept a benefit, for which he does not ask, and impose conditions on him for so doing." In a later case of HoUingsworth v. Broderick, <^c.,(c) however, then the preceding, where two actions had been brought by the same plainliflf on the same policy of insurance against different defendants, the Court ordered them to be consolidated, after a declaration had been delivered in one, and an appear- ance entered in the other, at the instance of the defendant, in the latter action, though die plaintiff* objected. But in the case of Ohrly v. Dunbar, {d) where sixty -five actions were brought by one party on policies of insurance against individual underwriters and incor- porated companies, for sums amounting in the whole to 27,000/., the defend- ants obtained a consolidation rule, which bound the plaintifT as well as the defendants. One cause was tried, the plaintifT had a verdict, and a rule was r ; Q "1 granted for a new trial on *affidavit of surprise and merits. Two L *'^'^^ -I of the defendants had died, and the plaintifT alleged that whilst the case stood over he lost the interest of the 27,000/. The Court, on these ^rounds, refused to direct the money to be paid into Court or invested, to wait the event of the cause, in which the rule nisi had been granted. 4. As the action on a policy of assurance is of a transitory nature, the venue, if laid in a county different from that in which the cause of action (6) 4 B. & Ad. 544. The defendant had been ruled by a Judge's order not to issue execution. (a) In Long v. Douglas, Mich. T. 1831, where the plaintiff failing in the first cause, gave notice of trial in another, the costs of the first remaining unpaid. A rule was obtained for staying the proceedings. The Court discharged the rule. Lord Tenterden, observing, however, that where the plaintiff proceeded in a second consolidated action without apply- ing to the Court, he was not entitled to have the benefit of any terms imposed on the defend- ants by the rule. {(j) 1 A. & E. 6.35. (c) 4 A. & E. 646, and see the rule which was drawn up by consent in that case. (d) 5 A. & E. 824. OF THE PROCEEDINGS IN THE ACTION. 433 accrued, may be changed by the defendant in the usual manner, (a) unless the policy be under seal ; (6) in which case the Court will not change the venue without some special reason being shown to induce them to depart from the general rule. And the venue cannot be changed when the cause of action arises out of the realm, (c) 5. The next consideration is, the declaration in the action ; and as, of course, the form of the policy upon which the action is brought must be inserted in the declaration, I must state, therefore, what is required of the policy, before it can be read in the declaration as the ground of the action. Istly, — It is necessary that the day, month, and year, on which the policy is executed should appear upon die instrument itself. 2ndly, — That the policy has a stamp required by law. (fZ) It is my intention now to present, for the attention as well as information of the reader, some forms of declarations and pleas on marine policies, and I shall make such references in the body of the declaration as I think are necessary to the pages of the first part of this Treatise, where the very words of the policy are fully treated of. I may, however, first observe, that, in the Treatise itself, it will be seen that in many instances the declaration and pleas are frequently *stated and referred to ; and, in most cases, I have stated how a r- ;^~qrj -i particular loss is to be averred in the declaration. L J By Reg. 5, H. T., 4 Wm. 4, it is ordered that "two counts on the same policy of assurance are not to be allowed. But a count upon a policy of insu- rance, and a count for money had and received to recover back the premium, implied by law, are to be allowed. The account stated may be joined, and there may be several breaches to the same contract." And by 3 & 4 Wra. 4, c. 42, s. 29, interest is recoverable. The first form of a declaration which I shall state, is one on a policy "on goods," averring a total loss by "perils of the sea." The declaration stated: — "For that whereas the plaintiff, (a) heretofore to wit on, &c. (lO) caused to be made a policy of assurance, (setting it out ver- batim) purporting thereby and containing therein, that Messrs. Boggs, Taylor, &; Co., as well in their own names, as for and in the names of all and every person or persons to whom the same did, might, or should appertain in part or in all, did make assurance, and cause themselves, and them and every of them to be insured with the General Maritime Assurance Company, 'lost or not lost' (c) at and from Bombay to London, with leave {d) to call at all ports and places on either side of, and at the Cape of Good Hope, including the risk of craft to and from the vessel (e) upon any kind of goods and merchandise, and also upon the body, tackle, &c., of and in the ship at [f) and upon the said ship, &c., (_/") and so *should continue and endure dur- p »'ya\ ~\ ing her abode there, upon the said ship, &c. 5 and further until the L J said ship with all her tackle, &c., and goods and merchandise whatsoever, (a) See 1 Saund. 74 a, n. (2), n. (c), 6tli edit. 2 T. R. 275. Jones v. Pearce, 2 Bowling, 54. Tidd. 624. Form of Aifidavit, Chilly's Forms, 553. 1 Saund. 74 a, n. (3), n. (c), and see 8 M. & W. 640; 2 Sir. 1160. (6) 1 T. R. 782 a. (c) Tidd. 623, 7 T. R. 205. (d) The duties on marine policies are fixed by 7 Vict. c. 21 ; see the Sched. to that Act. (a) See ante, p. 3, where the persons are slated who, according: to 28 Geo. 3, c. 56, can sue on a marine policy of assurance. And see by Keg. Gen. H. T. 4 Wm. 4. r. 5, (6) The dale of the execution of the policy in the margin. (c) See ante, p. 12. (rf) See ante, p. 208, as to the clause "with leave," &c. (c) See ante, p. 149, as to this clause of "including the risk to and from the vessel," which varies from the ordinary printed form, but which is now frequent in practice. (/) These were left blank in the policy. 434 OF THK PROCEEDINGS IN THE ACTION. should be arrived at ; («) and upon the said ship, Sic, until she had there moored at anchor twenty-four hours in good safety, and upon the said goods and merchandise until the same should be there discharged and safely landed. The insurance was declared to be on 360 bales of cotton, and the policy, after admitting tlie receipt of the premium, stated, that the said company were con- tent, and did take u})on them that assurance for the sum of 2,000/. The declaration then alleged, that in consideration of the premises, and that the plaintilf at the request of the defendants, (then being three of the directors of the said company) then paid to the said company the sum of 40/. as a premium for the assurance of 2,000/. upon the said goods, on the said voyage in the policy mentioned, and then promised the defendants to perform and fulfil all things in the policy mentioned, on the behalf of the assured to be performed andlulfilled, the defendants then promised the plaintiff that the said company would become and be assurers to the amount of the said sum of 2,000/. upon the said goods in the said ship in the policy mentioned, and would perform and fulhl all things therein mentioned on their part and behalf, as assurers of the sum of 2,000/. to be performed and fulfdled : that the said goods were, on the Isl of September, 1841. shipped at Bombay on the said voyage : that the plain- tifl' was, during the said voyage, to wit, {b) on the same day and year last aforesaid, interested (f) in the said goods in the said policy mentioned, and so loaded on board the said ship, to the amount insured : that the said insurance was made for the use and benefit, and on account of the plaintiff as aforesaid : r ^:7q9 -1 t^^e said ship afterwards sailed *on the said voyage, and being L ■■ ^y-^ J injured by tempestuous weather, became fdled with water, whereby the said goods were wetted and damaged, and rendered of no use or value to the plaintiff. The second form of a declaration which I shall state is one on a policy on *'ship," averring the total loss by "perils of the sea." This was an action on a policy of insurance "for twelve calendar months, commencing the 1st ilf fly, 1835, and ending 30th .^/jn7, 1836, both days inclu- sive, in port or at sea, in all places, at all times, and on all services, upon any kind of goods and merchandises, and also upon the body, tackle, apparel, ord- nance, munition, artillery, boat and other furniture of and in the good ship or vessel called the Sherburne, valued at 8,000/." The declaration, after setting out the policy, and averring the plaintiff's interest in the ship, stated that on the 1st of May, 1835, the said ship was in safety in harbour, at Bombay, in the East Indies; that afterwards, and before the 30th Jlpril, 1836, to wit, on the 20th Mtgust, 1835, whilst the said ship was protected by the said policy, the said ship was, by the perils of the sea and by stormy and tempestuous weather, and by the violence of the winds and Avaves greatly strained, bulged, broken, and otherwise damaged in her body, rudder, bowsprit, irons, and other parts, whereby it became necessary to repair the damage done to the said ship as aforesaid ; that after such damage had arisen as aforesaid, and in consequence thereof, the plaintiff, by himself and servants and agents, to wit, on the day and year last aforesaid, did labour for, in, and about the safeguard, safety, and preservation of the said ship or vessel, and in so doing, and in and about the necessary repair of the said ship, by reason of the damages so by him sus- tained as aforesaid, did necessarily lay out and expend a large sum of money, (a) See note (/), p. 790. {b) This allegation is not in the usual form, see ante, p. 13, where the defendants ad- mitted it in their plea, and where the declaration was supported, and the plea held bad on demurrer. (c) Every declaration must contain the name of the person or persons interested in the policy. See Cousins v. Nantes, 3 Taunt, p. 513, and ante, sect. 4, where the law of interest is fully discussed. OF THE PROCEEDINGS IN THE ACTION. 435 . to wit, the sum of 1,000/., whereby the defendant according to the terms of the said policy, and of his said promise and undertaking, then became liable to pay, and ought to have paid the plaintiff 150/., being the rateable proportion of the *expense aforesaid, which the defendant ought to have paid ^ ^ „ and contributed in respect of the insurance aforesaid, whereof the L J defendant then had notice, (a) and that afterwards, and during the continuance of the risk, and whilst the said ship in the said policy of insurance mentioned was protected by the said policy, to wit, on the 10th of October, 1835, the ship, in the said policy mentioned, by stormy Aveather. &c., became and was wholly lost to the plaintiff, of which premises he, the defendant, had notice. There was also a count for money had and received, and a count upon an account stated. Thirdly, — The declaration after setting out a policy of insurance, in the usual form, dated 19th October, 1792, on the Petronelli "at and from Bayonne to Martinique, and at and from thence to return to Bayonne,^' and making all the necessary averments, proceeded: "And the said Joseph Furtado further says, that afterward and after the said ship had so arrived at Martinique afore- said, in the said writing or policy of assurance mentioned, and whilst she remained there and before her departure from thence, in further prosecution of her said voyage, to return to Bayonne aforesaid, to wit, on the 12th day of November, in the year of our Lord, 1793, the said island of Martinique was with force and arms, and in a hostile manner, attacked, captured, and taken by the forces of our present sovereign Lord the now King, then being at enmity and open war with the said island, and the persons exercising the powers of government in the same ; and the said ship then and there being at the said island as aforesaid, then and there on the capture of the same, was then and there seized, taken, and captured by the said forces of our said Lord the King, as a prize, and thereby the same ship with all her tackle, apparel, ordnance, munition, boat, and other furniture thereof became and was totally lost to the *said Joseph Furtado, to wit, at London aforesaid, in the parish r- ^704. n and ward aforesaid." L -* Fourthly. — This was an action of assumpsit on a policy of assurance. The declaration stated that the plaintiff caused himself to be insured, "lost or not lost," at and from Calcutta, or any port or ports, place or places, all or any, and in any succession, on the Coromandel coast, to any port or ports, place or places, in Bourbon, upon any kind of goods and merchandises, and also upon the body, tackle, apparel, ordnance, munition, artillery, boat, and other furni- ture of, and in the good ship called La France, beginning the adventure upon the said goods and merchandises, from the loading thereof on board the said ship at as aforesaid, upon the said ship at as aforesaid, and so to continue and endure upon the said ship until she should be arrived at Bourbon aforesaid, and be moor- ed at anchor "twenty-four" hours in good safety, and upon the goods and mer- chandises, until they should be discharged and safely landed. It was to be lawful for said ship in that voyage, to proceed and sail to and touch and stay at any port or ports, place or places whatsoever, without prejudice to this insurance : the said ship, goods, and merchandises, &:c., for so much as concerned the assured, by agreement between the assured and assurers in this policy, are to be valued at 1,000/. : the peiils the assurers were contented to take themselves, were of the sea, &c., and all other perils, losses and misfortunes that had, or should come to the detriment, or damage of the said goods and merchandises or ship, (a) See ante, pp. 443, 449, that the assured cannot recover the expense which would have been incurred if a certain damage had been repaired, which it was not, owing to the subsequent total loss of the ship. 436 OF THE PROCEEDINGS IN THE ACTION. or any part thereof : and by a certain memorandum made on the said writing or policy of assurance, the said assurance was declared to be on 1,000/. on the* "freij^ht" of the said vessel, valued at 1,000/. Averment of promise by the defendant to become an assurer, in consideration of having received the pre- mium ; of interest in the assured ; that the ship was in good safety at a certain port on the Coromandel coast, called Coringa; and that whilst the sliip was at Coringa aforesaid, and before the time of the loss thereinafter mentioned, r *7qp; "i clivers goods and merchandises amounting *to a full cargo of the L -' said ship, which had been bought, procured, and contracted for, for and on account of the said person so interested in the subject-matter of insurance as aforesaid, were there, to wit, at Coringa aforesaid, for the pur- pose of being shipped and loaded, and which, but for the loss thereinafter mentioned, would have shipped and loaded in and on board the said ship, to be conveyed therein on the said voyage in the policy of assurance mentioned, to wit, from the Coro7nandel const aforesaid to Bourbon aforesaid; that after- wards, and whilst the ship was at Coringa aforesaid, and during the continuance of the risk in the said policy mentioned, to wit, on, &c., the said ship was broken, damaged, and destroyed, and rendered wholly incapable of pursuing the said voyage aforesaid, by certain perils which the said assurers by the said policy did take upon them as aforesaid, to wit, by the accidental breaking and giving way of the tackle and supports, whereby the said ship was supported, in being moved from a certain dock ; in consequence of which breaking and giving way, the ship violently struck against the sand, and was bilged, broken, destroyed, damaged, and rendered incapable of pursuing the said voyage as aforesaid : and the said ship and the freight, and all benefit, profit, and advan- tage which the said person so interested as aforesaid, would have derived and acquired from the employment of the said ship in carrying and conveying the said goods and merchandises on the said voyage in the said policy mentioned, and the means of carrying and conveying the said goods and merchandise were by the means aforesaid wholly lost to the said person so interested as afore- said ; whereof the defendant, afterwards to wit, on, &;c., had notice; by reason whereof, the defendant became and was liable to pay, and ought to have paid the sum of 200/. so by him insured as aforesaid. There was also a count for money had and received, (o) r *7qR ~i *^' '^'^^ plaintiff or his attorney, having delivered his declara- L J tion to the defendant or his attorney, the defendant must plead to the declaration. And by the rules of H. T. 4 Wra. 4, the plea of non- assumpsit operates only as a denial "of the subscription to the policy by the defendant, and not of the interest, of the commencement of the risk, of the loss, or of the alleged compliance of warranties." And all matters in con- fession and avoidance of the action, as unseaworthiness, misrepresentation, concealment, deviation, and various other defences must be especially pleaded." The plea of money paid into Court, (6) may be either for the purpose of meeting an average loss sustained by the ship or cargo, or often a general aver- age upon the cargo. And to the money counts, the defendant frequently pays the value of the premium into Court. The plaintiff, after a delivery of a plea of payment of money into Court, shall be at liberty to reply to the same by accepting the sum so paid into Court in full satisfaction, and discharge of the cause of action in respect of which it has been paid in ; and he shall be at (a) The reader is here referred to page 505 of this Treatise, where he will find fully stated the declaration, pleas, and replication, in the recent and important case of Milward V. Hibbert, 3 Q. B. 120. (6) The form Reg. Gen. 1 Vict. OF THE PROCEEDINGS IN THE ACTION. 437 liberty in thai cnse to tax his costs of suit, and in case of non-payment thereof within forty-eight hours, to sign judgment for his costs so taxed; or the plain- tiff may reply, "that he has sustained damages, (or, "that the defendant was and is indebted to him," as the case may be.) to a greater amount than the said sum ; and in the event of an issue thereon being found for the defendant, the defendant shall be entitled to judgment and his costs of suit. When the assured are not entided to recover on the policy, but are entiUed to a return of premium, money should be paid into Court, on the count for money had and received. The payment of money into Court admits the contract stated in any count to which the payment applies ; on a special count it admits the special contract declared upon; on an indebitatus count, it admits a liability on some one or more contracts, to the amount of the sum paid in; (6) and therefore *the Court of King's Bench held, in the case of p ^'^n-y -i Jlndreivs v. Palsgrave, [a) that where the defendant paid money L J into Court generally on a declaration containing a count in a policy of insu- rance, and the common money counts that that was an admission of the policy as stated in the declaration, and that the defendant could not show by evidence that the original terms of the insurance was that the risk was only to continue for twenty-four hours, and that it was afterwards altered by the broker without their knowledge. But where another defendant, in another action on the same policy, had paid money into Court on the count for money had and received, in another action on the same policy, and the broker proving the alteration to have been made, as above stated, the plaintiffs were nonsuited. But in the case of Midler v. Hartshorne, (b) which was an action on a policy on goods, and the defendant had paid money into Court generally on the whole declara- tion, and the only question in the cause was fraud in effecting the policy after the ship had sailed and was lost, and the plaintiff contended that the defendant having paid the premium into Court generally on the declaration, was precluded from going into a question of the validity of the contract, but must confine himself to such as only went to reduce the value of the goods insured, Lord Mvanley, C. J., held, that as the plaintiff had by his conduct up to the time of the trial, in allowing the defendant after paying the premium into Court, to go on preparing his defence to meet the only point in question, viz : that of fraud, that he was not in a situation to avad himself of such an objection. But it is to be observed that a plaintiff, in setting forth the ground of his demand upon the defendant, is at liberty to state different claims upon the record, though inconsistent with each other, without subjecting himself thereby to have one of such claims set up in answer to the other, (c) p «7qQ t Whatever *issnes are joined upon any counts or pleas, are to be •- -' tried by the jury distincdy from each other. If not guilty, and a justification is pleaded to a declaration in trespass, the admission of the trespass in the justification will not entitle the plaintiff to a verdict on the plea of not guilty, (a) And therefore in the case of Gould and others v. Oliver, referred to in a former part of this Treatise, {b) which was an action brought by the freighters on a charter-party against the owners for an improper stowage of the cargo, and there was a second count in the declaration, claiming a contribution for a (b) See Kingbam v. Robins, 5 M. & W. 94. Stapleton v. Nowell, 6 M. & W. 9. (a) 9 East, 325. See also Mellisb v. Allnutt, 2 M. & S. 106. Rucker v. Palsgrave, 1 Taunt. 419. Everetb v. Bell, 7 Taunt. 450. (6) 3 Bos. & Pull. 556. (c) By the Court in Gould v. Oliver, 2 Scott's N. R. 262. (a) Harrington v. Macmorris, 5 Taunt. 228. Montgomery v. Richardson, 5 C. & P. 247. Edmunds v. Groves, 2 M. & W. 642. (Z») Ante, p. 20. 438 OF THE PROCEEDINGS IN THE ACTION. general average in respect of the deck cargo, which had been thrdwn overboard in tempestuous weather, and the ship afterwards saved, and which count aver- red a stowage of the plaintiffs' goods according to the custom of trade, and the defendant had paid money into Court on that count, which the plaintiffs took out in satisfaction of that part of their demand, it was held by the Court that this fact could not at the trial be given in evidence as an acknowledgment by the plaintiffs that the goods had been properly stowed. And Lord Chief Jus- tice T'uidal, who delivered the judgment of the Court, observes, — "The effect of the pleadings is this : the plaintiffs claim a total loss upon their goods, in consequence of the misconduct of the defendant j and, in case they should fail in establishing such misconduct in the defendant, they claim a partial compen- sation for the sacrifice of their goods in the shape of general average. The defendant, admitting the second claim, pays it into Court, which the plaintiffs take out, having no claim in this view beyond the amount paid in. But, in so doing, they do not abandon the claim which they have preferred in the first count of the declaration, and upon which issues remain to be tried. They would not, indeed, be permitted to retain the whole amount of loss under the first count, and the amount of general average under the second ; but they are r *7qq ~] ""^^ ^^ ^^ *deprived of their right to insist that a total loss has been L J sustained by the misconduct of the defendant, (o) In the very late case of Harrison v. Douglas, (b) which Avas an action, not on a common marine policy, but one in whicli the plaintiff, the defendant, and other persons, were mutual insurers on their respective ships for the period of one year, the payment of money into Court was held to amount, first, to a waiver of an objection of the non-performance of a condition precedent j and, secondly, to a waiver of an otherwise valid objection, that the action was brought too soon. The policy contained at the foot of it a condition that all ships were to be inspected and approved of by a majority of the committee of insurers before admission ; that all ships should be well found, &c., and otherwise in a seaworthy state ; that all vessels should have a certain quantity of rope or chain cable, according to their respective burthens, and that all "chain cables should be properly tested;" and, in case of non-compliance with orders to repair made by the committee or the inspector, the parties neglecting to be uninsured. The policy declared tliat certain rules should be deemed a compo- nent part of the policy. And by one of the rules the assured was not entitled to be paid in case of a loss, till a period which was shewn by the evidence not to have happened at tlie time this action was brought. The money was paid into Court on two counts, one of which was on the policy, averring generally a performance by the plaintiff of all things in the policy contained to be per- formed on his part, and a compliance with all the conditions referred to ; and on a count for money had and received, and on an account stated. At the trial, the defendant contended that the plaintilf should be nonsuited on two grounds, first, that the chain cable of the ship was not properly tested according to the first rule ; and secondly, that the action was brought too soon under the other rule above referred to ; and the defendant had leave given him to move on both r *ftnn ~l ^^^^^ grounds. *The judgment of the Court was afterwards de- '- J livered by Lord Chief Justice Bennian, who said that the Court were of opinion that the chain cable being properly tested, taken by itself, without more, was not a condition precedent; but that, suppose it was other- wise, it was in the nature of a want of seaworthiness, and the opinion of the jury should have been taken on it ; and that, independently of that, they thought that by payment of money into Court, tlie objection, if it ever existed, (a) See 2 Scott's N. R. 263. (i) 3 A. & E. 396. OF THE PROCEEDINGS IN THE ACTION. 439 was cured ; for that admitted that the plaintiff was entitled to recover some- thing, which he could not be, if the vessel were not seaworthy. And that as to the second ground of nonsuit, there was no doubt but that the action was brought too soon ; and that it would be a cause of nonsuit, if it had not been for the paying money into Court : that that admitted to some extent, at least, that the plaintiff was entitled to recover, (a) Having mentioned the effect of paying money into Court by the defendant, I come now to state one or two examples of pleas as I said I intended to do. The first pleas I shall mention are those which were in fact pleaded by the defendant to the declaration, form of No. (1.) (6) The defendants pleaded eight pleas, (but we shall confine ourselves to a part of them. ) The defendants pleaded in the first place non-assumpserunt. Secondly, for a plea in this behalf they stated ; that true it was that the policy of assurance purporting and containing therein that Boggs, Taylor & Co., did make assurance of the matters and things according to the terms and provisions of the said policy, as in that behalf in the declaration mentioned and set forth, was made, to wit, upon the day in that behalf in the declaration alleged: yet the defendants said, *that the said policy was not p ^^^, -, caused to be made by or on behalf of the plaintiff, in manner and ^ J form as alleged : concluding to the country. Thirdly, for a plea in this behalf, the defendants say that the plaintiff did not, nor did any person on his behalf pay the said premium or any part thereof, nor promise the defendants to perform and fulfil the things in the said policy mentioned, on behalf of the assured to be performed and fulfilled in manner and form alleged : concluding to the country. Eighthly, for a plea in this behalf the defendants say, that although the said ship witli the said goods on board, set sail upon the voyage from Bombay to London, and although the said goods were damaged and diminished in use and value on the said voyage, as in the declaration mentioned ; and although, after the commencement and during the course of the said voyage, and after the ship had sailed on the said voyage for divers, to wit, thirty-five days, and for divers, to wit, 1,000 miles, the plaintiff acquired an interest in the said goods, to wit, to the value and amount in that behalf mentioned : nevertheless, that the said goods were so damaged and diminished in value as in the declaration mentioned before the plaintiff acquired or had any interest therein, to wit, upon the 20th day of August, a. d. 1841. Verification. The plaintiff demurred specially to the second and third pleas, on the ground that they amounted to pleas of the general issue, and that the matters alleged in them ought to have been given in evidence under the issue joined in that plea ; and pleading in the manner as pleaded by the defendants tended to unne- cessary prolixity and delay. To the eighth plea, the plaintiff demurred gen- erally : and the point marked for argument on his part was, that a policy being made "lost or not lost," the defendants were responsible for the loss, notwith- standing it happened before the plaintiff acquired an interest in the goods, (c) *I shall now state the pleas which were pleaded to the second p *Qno ~i form of declaration, {d) '- -' (rt) See the cases of Meager v. Smith, 4 B. & Ad. 673. Lundie v. Robertson, 7 East, 231. Early v. Bowman, 1 B. & Ad. 889, as to the effect of the admission by payment of money into Court on the question as to the performance of a condition precedent. (6) Ante. (c) Ante, p. 33, and see 11 M. «& W. 299. \d) Ante, p. 792. 440 OF THE PROCEEDINGS IN THE ACTION. First, as to so much of the first count as states that the vessel was by the perils and dangers of the sea, and by stormy and tempestuous weather, and violence of the winds and waves, o^really strained, bulged, broken, and other- wise damaged, and that tlie plaintiff by reason thereof laboured for and about the safeguard, safety, and preservation of the said ship, and that the plaintiff did, after such damage had arisen, and in consequence thereof, labour for and about the safeguard, safety and preservation of the vessel, and in so doing, and in and about the necessary repairs of the said vessel, by reason of the damages, did necessarily lay out and expend a large sum of money — the defendant said, that the plaintiff ought not further to maintain his action, because the defendant brought into Court the sum of 18/. 18*. ready to be paid to the plaintiff, and the defendant said that the plaintiff had not sustained damages to a greater amount than the said sum of 18/. 18s., in respect of so much of the cause of action in the introductory part of that plea mentioned ; and this he is ready to verify, wherefore he prayed judgment, if the plaintiff ought further to maintain his action in respect of the premises in the introductory part of the plea mentioned. Secondly. — As to so much of the first count as stated, that the said ship or vessel was lost by stormy winds and tempestuous weather, or by the perils or dangers of the sea — that the said ship or vessel was not lost by stormy winds and tempestuous v/eather, or by the perils or dangers of the sea, as in the first count mentioned ; concludmg to the country. Thirdly. — To the second and third counts, non assumpsit, [b) Pleas to fourth form of declaration, (c) The defendant pleads. — First, that the goods and merchandises in the decla- ration in that behalf mentioned, had not before and at the time of the loss in the r *ii(\'i 1 ^^'^^ count ^mentioned, been bought, procured, and contracted for, L -' for and on account of the said person in the declaration in that behalf mentioned, to be carried and conveyed in the said ship. Secondly. — That at the time of the loss in the declaration mentioned, the risk in the said writing or policy of insurance mentioned, had not commenced, and the said writing or policy of insurance had not attached in manner and form as in and by the declaration was alleged. Thirdly. — That the said ship was not at the time of the commencement of the risk insured against by the said policy in the declaration mentioned, sea- worthy. Fourthly. — That the said ship was not broken, damaged, and destroyed, and rendered incapable of pursuing the said voyage by any perils which the said assurers by the said policy did take upon themselves, in manner and form as in and by the said declaration was alleged. Fifthly. — That the ship was not at any time after the making of the said policy, and before the said loss in the first count mentioned, in good safety at any port or place on the Coromandel coast in the said policy mentioned, in manner and form as by the declaration was alleged. Sixthly. — As to the money alleged to have been received by the defendant to the use of the plaintiff, that the defendant brought into Court 20/. lOs., beyond which the plaintiff had sustained no damage. Seventhly. — To the residue of tlie declaration, that the defendant did not promise modo et forma. 6. The issue having been joined, it is necessary to shoAV how the plaintiff is to prove his case. Proof of the defendant's subscription to the policy, or of some person subscribing for him by his authority, may in some cases be neces- sary, though the subscription is in ordinary cases admitted. (6) 6 Scott'3 N. R, 928. (c) Ante, p. 794, and 7 Scott, 509. OF THE PROCEKDINGS IN THE ACTION. 441 In the case of Neale v. Ervins:;, (d) where an action was brought upon a policy in which the policy was siirned by one *IIutc;hiiis, fur the ^ «Qn^ defendant. The witness said he did not know by what authority, L ''"'* J but that Hutchins had been in the constant habit of subscribing policies for the defendant, and had done several for the witness, and for others, to his know- ledge. Lord Kenyan was of opinion, that the acts of Hutchins held him out to the world as properly authorized, and his having subscribed several policies was sufTicient to bind the defendant, who, and not Ihe plainlifT, ought to prove that his power was limited. And where a witness stated that he was author- ized by a power of attorney, but added, that the defendant had been in the habit of i)aying losses upon policies, which the witness had subscribed in his name. Lord Ellenhoroiigh ruled that the power of attorney need not be pro- duced. Ihaighlon v. Eivbank. (a) But in the case of Courteen v. Toiise, ib) where a witness proved the agent's handv/riting, and swore he had often seen him sign policies for the defendant, but he had never seen any general power of attorney from the defendant to the agent, nor did he know that the defendant had given tlie agent any authority to sign the policy in question, nor was he acquainted with any instance in which the defendant had paid a loss upon a policy so subscribed : Lord Ellenboroiigh held tliat the proof of agency must be carried further. 7. The plaintiff having averred in his declaration, that he is interested to the amount of the property insured, it is necessary that he should prove his interest in the subject-matter, but in a valued policy it is not required of him to prove the whole. This will be done by the production of the bills of sale, bills of parcels, and the costs of the outfit; the bills of lading signed by the master, spe- cifying the goods received on board, and for whom he is to carry them. In addition to the bill of lading, &c., it is usual to call the captain or some other person to prove that the goods mentioned in it were actually on board. jyfJln- drew V. Bell, (c) The case of ^Caldwell and others v. Bcdl, (a) p *qac t was a case where the law relating to bills of lading was much con- L J sidered. The Court held that a bill of lading is an acknowledsfment under the hand of the master, that he has received such goods, which he undertakes to deliver to the person named in the bill of lading ; that it is assignable in its nature, and by endorsement the property is vested in the assignee. But if, as in the case of Haddow v. Parry., [b) the master qualifies his acknowledgment by the words "contents not known," the bill of lading is not evidence. If the master is dead, proof of his death and his handwriting is sufficient, (c) But it was held in Dickson v. Lodge., [d) that the bill of lading is not evidence of the shipment if the master be aliva, he ought to be called, or the mate, or some party acquainted with the fact. 8. If the assured has exercised acts of ownership, in directing the loading, &c., of the ship, and paying the people employed, this has been held to be prima facie sufficient proof of ownership in the vessel. Aniery v. Rogers, (e) In the case of Robertson v. French^ [f) it is laid down that the ordinary mode is to call the captain of the vessel to prove that he was appointed and employed by the parties, and even should it appear on cross-examination that (r/) 1 Esp. 61. («) 4 Camp, and see Broclebanlc v. Sugrue, 5 C. & P. 21. lb) 1 Camp. 43. (c) 1 Esp. 373. In) 1 T. R. 205. See Bryans v. Nix, 4 M. & W. 775. (b) 3 Taunt. 303. (c) See tfie Factors' Act. Id) I Stark. 226 (e) 1 Esp. R. 207, and see Thomas v, Foyle, 5 Esp. 88. Abbott on Shipp. 78 (6th edit.) (/) 4 East, 137. 442 OF THE PROCEEDINGS IN THE ACTION. the ownership was devised to those persons under a bill of sale, it is not on that account necessary to produce the bill of sale on the ship's register, or to give any further proof of their property : the mere fact of their possession as owners being sufficient prima facie evidence of ownership, without the aid of any documentary proof or title deeds on the subject, until some further evidence should be rendered necessary in support of the prima facie case of ownership which is made in consequence of the adduction of some contrary proof on the r *snfi "1 o^^^'^^' ^^^^' *And it was also held that such parol evidence of L o J ()^^j^gj.gi^ip^ at a particular period, was not disproved by the pro- duction of a prior register in the name of another and subsequent register to the same person upon a sale under a decree of the Vice Chancellor's Court, those being perfectly consistent with the title in odier persons in the meantime. Sutton V. Buck, (a) And in the case of Pirie v. Jlnderson, {h) it was held the original certificate of the ship's registry is no evidence for the plaintiff on a policy of assurance that the interest in the ship is in the persons in whom it is averred. And because the tide of the ship is not complete without the register that is no reason why the register alone should be proof of the tide. In Floioer v. Young [c] Lord Ellenborough says, "how can the register be evidence for a man? It may be evidence against him if he has signed it; but it can amoimt to no more than a declaration that he is owner, which a man cannot convert into evidence of his own tide. If the register were recognized as a public document to prove the ownership, it would be evidence both against and for all the persons whose names appear upon it. However, we can con- sider it as a private instrument only ; and, therefore, although it be evidence as an acknowledgment against the persons who sign it, it cannot be evidence in their favour." {d) But as in lieid v. Darby, (e) if the tide of the ship really comes into ques- tion, no claim can be set up in opposition to the Legislative enactments on this subject. The Registry Acts are now consolidated and comprised in one act, r *8n7 -1 3 & 4 Wm. 4, c. 55, by which it is enacted, "that no ship or L J vessel *shall be entitled to any of the privileges or advantages of a British registered ship unless the person or persons claiming property therein shall have caused the same to be registered, in virtue of the 6 Geo. 4, c. 110, or of the 4 Geo. 4, c. 41, or until such person or persons shall have caused the same to be registered in manner thereinafter mentioned, and shall have obtained a certificate of such registry from the person or persons authorized to make such registry, and grant such certificate as thereinafter directed." (a) And it is further enacted, "tRat in case any ship or vessel not being duly registered, and not having obtained such certificate of registry as aforesaid, shall exercise any of the privileges of a British ship, the same shall be subject to forfeiture, and also all the guns, furniture, ammunition, tackle, and apparel to the same ship or vessel belonging, and shall and may be seized by any officer or officers of his Majesty's customs." (i) "That where the property in any ship, or any part thereof, belonging to any of his Majesty's subjects, shall be sold to any other of his Majesty's sub- (a) 2 Taunt. 302. (b) 4 Taunt. 652. (c) 3 Camp. 240. (d) By the 72nd section of the Bankrupt Act, 6 Geo. 4, c. 16, it is provided "that nothing therein contained shall invalidate or afTcct any transfer or assignment of any ship or vessel, or any share thereof, made as a security for any debt or debts, either by way of mort- gage or assignment duly registered under the provisions of an act of Parliament made in the fourth year of his present Majesty, intituled ♦An Act for the registering of Vessels.' " (e) 10 East, 143. (a) Sect. 2, and see the form in the act. (6) Sect. 4. OF THE PROCEEDINGS IN THE ACTION. 443 jects, the same shall be transferred by hill of sale, containing a recital of the certificate of registry of such ship, or the principal contents tliereof, otherwise such transfer shall not he valid or effectual for any purpose wliatcver, either in law or in equity; hut no bill of sale shall be deemed void by reason of any error in such recital, provided the identity of the sliip intended in the recital be effectually proved thereby, "(c) And, therefore, a certificate of registry affords conclusive proof that a person not named therein, was not at that time owner. Mamh v. Jioblnson. (r/) And in the case of Camden v. Anderson, (e) where two partners purcliased a ship under a regular bill of sale, and were registered accordingly, and they afterwards took in two =*other partners, who paid their respective p i^Qfio -i shares in the ship, but there was no transfer to them under the L J direction of the statute, («) it was held that the four partners had not an insu- rable interest in the freight, for as the right of freight resulted from the right of ownership, these four partners had not shewn in themselves jointly (as laid in the declaration) either a legal or equitable tide in the ship. When, therefore, the interest in the ship is claimed by a bill of sale or other writing, and possession and acts of ownersliip are not relied upon by the assured, he must give in evidence the proper documents required by the statute in order to support his case, (i) In the case of Senat v. Porter, (c) where the agent or broker of the assured, having shown to the underwriter the protest of the captain, stating the circum- stances of the loss of the ship insured, and demanding payment, it was held by the Court, on a motion for a new trial, that the delivery of this paper to the defendant did not entide him to read it, as evidence of the facts contained in it ; diough, had the captain been called to give a different account of the loss from that contained in the protest, it might have been produced to show that he was not worthy of credit; but it could not be read on the part of the defendant to prove any fact in the case. So also in Wright v. Barnard, [d) in an action on a policy on the ship, a condemnation of the vessel by a Court of Vice Admiralty abroad for insuffi- ciency, after a survey had upon oath, was offered in evidence by the under- writers, to prove that there were defects in the ship, from which want of seaworthiness at a prior time was meant to be inferred ; but Lord Kenyon rejected the sentence as evidence of the facts ^contained in it, though p «oaq -i he admitted it to be read, to prove the mere fact of a condemnation L J having taken place ; and this, notwithstanding an order of the Court of Exche- quer, directing that it should be admitted in evidence. A man having purchased goods beyond sea, in order to prove his property in the cargo, in an action upon a policy of insurance, produced a bill of parcels of one Gardiner, at Petersburgh, with his receipt to it, and proved his hand. The defendant objected that this was no evidence against the insurers; but the Lord Chief Justice allowed it. Russel v. Boheme. [a) If the policy is on freight, the assured must show either that the goods were on board, or ready to be put on board, under a contract capable of being enforced, (c) Sect. 31. Upon the construction of this section, see Hunter v. Parker, 7 M. & W. 322. {d) 4 Esp. 98. (e) 5 T. R. 709. (a) 26 Geo. 3, c. 60. (6) See the 40th sect, of 3 & 4 Wm. 4, c. 55, and see Teed v. Martin, 4 Camp. 90, as to secondary evidence, and see Woodward v. Larking, 3 Esp. 286. (c) 7 T. R. 158. The same doctrine had been previously held by Lord Kenyon in Christian v. Combe, 2 Esp. 489. (fl') Sittings after Mich. 1798, at Guildhall, Park Ins. 863. (a) 2 Stra. 1127. 444 OF THE PROCEEDINGS IN THE ACTION. or that there was an inception of the right by means of a charter-party. And the assured cannot recover for the whole freight under even a valued policy where only part have been put on board, and no inchoate right to freight had arisen under a charter-party or other contract, (b) It i?, in the last place, incumbent on the plaintiff to prove that a loss has happened, and that by the very means stated in the declaration. It is abso- lutely necessary that this rule should be stricdy adhered to ; for otherwise the insurers would come into Court prepared to defend themselves against one charge, and one species of loss ; and they would then be obliged to resist a demand upon a quite different ground. This appeared clearly in the case of Gregson v. Gilbert, (c) and also in the case of Kulen Kemp v. Vigne, (cl) which was an action on a policy of insu- rance, which came on to be tried before Mr. Justice Buller, who nonsuited the plaintiff. Upon a motion to set aside that nonsuit, the following report was made by the learned Judge. The insurance was upon goods on board the ship r *sin ~\ ^'"^'^''^A at and from Falmouth to Maraeilles, ^'warranted a L J Danish ship, and on the policy was this memorandum; — "The following insurance is declared to be on money expended for reclaiming the ship and cargo valued at the sum which shall be declared hereafter. The loss to be paid, in case the ship does not arrive at Marseilles, and without further proof of interest than this policy; warranted free from all average, and without the benefit of salvage." It appeared that the plaintiffs were proprietors of the cargo, but not of the ship. That the ship originally sailed with the cargo on board from Riga to Marseilles, and that insurance had been effected at Bre- men upon the cargo for that voyage, in the course of which she was taken and brouglit into Falmouth by an English privateer. That a sentence of condem- nation had been there obtained, which was afterwards reversed, upon the prize having been proved to be a neutral ship, but the expenses of procuring that reversal were ordered by the Admiralty Court to be a charge upon the cargo. The plaintiff's agents accordingly paid tlie sum of 1,031/. 14s. for the expenses of reclaiming the ship and cargo ; and immediately procured the policy in question to be effected in January, 1781, according to the purport of the memorandum. In the February following, the ship set sail from Falmouth, with the original cargo on board, in the prosecution of her voyage to Alar- seillcs, but, on the 26th of the same mondi, before her arrival there, was cap- tured by a Spanish ship, and carried into Ceuta, in Spain, where she was again condemned. An appeal was brought in the Superior Court at Madrid, which promising to be of long continuance, the cargo, which was of a perish- able nature, was ordered to be sold, and the proceeds to be brought into Court to wait the event of the suit. In May, 1783, the vessel was restored by sen- tence of the Court, and the surplus of the proceeds which arose from the sale of the cargo was paid to the owners, deducting the expenses incurred in Spain in prosecuting the appeal. After all the charges paid, there only remained twenty-six rix dollars. As soon as the ship was liberated, she sailed from r *Sll 1 ^^"^^ to Malaga, in order to refit, and having there made *the L -^ necessary repairs, set sail for Bremen, and in that voyage was lost. The insurance made upon the cargo at Bremen had been paid. The declaration averred that, "whilst the ship was proceeding in her said voyage from Falmouth to Marseilles, and before she could arrive at Marseilles, she was captured by the Spaniards, and thereby the said ship, and also the goods (6) See Devaux v. I'Anson, 7 Scott, 507; 5 B. N. C. 519, and ante, p. 173. (c) B. B. East. T. 23 Geo. 3. Park Ins. 138, ante, p. 272. (rf) 1 T. R. 304. OF THE PROCEEDINGS IN THE ACTION. 445 and mercliandises on board her, were totally lost to the plaintifTs." At the trial, it was objected, on the part of the dercinlant, 1st, that this was not an insurable interest; and 2adly, that tlie plaintiiFs could not recover upon the policy in this form of declaring, for they stated the loss to have hap])ened by capture ; whereas, though the vessel was captured, yet, having been afterwards restored, she might have reached her destined port, notwithstanding the cap- ture, in which case die underwriters would have been discharged by tlie terms of the memorandum. I was of that opinion, and upon the last ground I non- suited the plaintiffs." This case was very fully argued both upon the merits and the formal objection, after which all the Judges spoke upon the question. Lord Mannfidd. — ''A loss accrued upon the cargo in tlie voyage, the under- writer is sued, and the loss is averred in t!ie declaration to be by capture. The fact of the case is, that the ship was taken by a Spanish privateer, but was afterwards restored, and in a condition to pursue Uie voyage, and was after- wards lost in another voyage." Mr. Justice IVilles, — "-Upon this case it is clear that the plaintiffs cannot recover. In the first place there was certainly a deviation, for the ship set sail for Malas^a, instead of proceeding to Marseilles. Secondly, the plaintiff has declared for a loss by capture; but after the capture, the policy niiglit slill have been complied with by the ship's going to Marseilles, and therefore the loss cannot be said to have happened by that circumstance." But where, in the case of Cary v. Kiny, [a) a loss is averred p ^^. -, *to be by perils of the sea, and some of the goods insured are L J spoiled and otiiers saved, it is allowable to give the expense of the salvage in evidence upon such an averment, because it is a consequence of the accident laid in the declaration. In an action on a policy of insurance for insuring goods on board the ship ^., the plaintiff declares that the ship sprung a leak, and sunk in the river, whereby the goods were spoiled. The evidence was, that many of the goods were spoiled, but some were saved; and the question was, — Whether the plaintiff might give in evidence the expense of salvage, that not being particu- larly laid as a breach of the policy in the declaration.^ Lord Hardivicke, C. J.— "I think they may give it in evidence, for the insurance is against all accidents. The accident laid in this declaration is, that the ship sunk in the river : it goes on and says that, by reason thereof, the goods were spoiled; that is the only special damage laid, yet it is but the com- mon case of a declaration that lays special damage, where the plaintifT may give evidence of any damage that is within his cause of action as laid. And though it was objected that such a breach of the policy should be laid as the insurer may have notice to defend it, it is so in this case, for they have laid die accident, which is sufficient notice because it must necessarily follow that some damage did happen. (fl) Cas. temp. Hard. B. B. 304. But salvage payable under a decree of a Court of Admiralty must be proved by evidence of the judgment of the Court. Thelluson v. fcShed- don, 2 N. R. 229. 446 ADDENDA. ADDENDA. [ *821* ] *Case of Redmond v. Smith and Another, (a) This was an action of assumpsit on a policy of insurance. The declaration stated that the plaintiff, by certain persons called or known by the name, style, and firm of H. & J. Johnston & Co., the plaintiff's agents in that behalf, theretofore, to wit, on the 2nd of July, 1842, caused to be made a certain policy of insurance purporting thereby and containing therein that the said II. & J. Johnston & Co., as well in their own name as for and in the name or names of all and every person or persons to whom the same did, might, or should appertain, in part or in all, did make assurance and cause themselves and them and every of them to be assured with and by the defendants, lost or not lost, for the space of twelve calendar months, commencing on the 1st of July, 1842, and ending on the 30th of June, 1843, both days inclusive, in port and at sea, in docks and on ways, at all times, in all places, and in all services, warranted to be employed in the coasting trade of the united kingdom, with leave to call at any ports or places for any purposes, and to tow vessels, upon the body, tackle, apparel, ordnance, munition, artillery, boat, and other furniture of and in the good ship or vessel called the Brigand (steamer,) whereof was master for that present voyage , or whosoever should go for master in the said ship, or by whatsoever other name or names tbe same ship, or the master thereof, was or should be named or called, beginning the adven- ture upon the said ship, body, tackle, apparel, ordnance, munition, artillery, boat, and other furniture of and in the said good ship or vessel as above j and that it should be lawful for the said ship, &c. to proceed and sail to and touch and stay at any ports or places whatsoever in the course of the said voyage for all necessary purposes, without prejudice to that assurance; the said ship, r *ao9* ~i <^^*' ^o"^ ^^ much as concerned *the assured, by agreement made •- -I between the assured and the said defendants in that policy, were and should be rated and valued in manner following, that is to say, hull and materials should be valued at 7500/., machinery should be valued at 7500/. ; to pay the average on each as if separately insured ; touching the adventures and perils which the defendants were contented to bear and did take upon them in that voyage, they were, of the seas, men of war, fire, enemies, pirates, rovers, thieves, jettisons, letters of mart and countermart, surprisals, takings at sea, arrests, restraints, and detainments of all king's, princes, and people of what nation, condition, or quality soever, barratry of the master and mariners, and of all other perils, losses, misfortunes, that had or should come to the hurt, detriment, or damage of the said ship, &c., or any part thereof; and that, in case of any loss or misfortune, it should be lawful to the assured, their factors, servants, and assigns, to sue, labour, and travail for, in, and about the defence, safe guard, and recovery of the said ship, &c. , or any part thereof, without prejudice to that assurance, to the charges whereof the said defendants would (a) 8 Scott's N. R. 250. ADDENDA. 447 contribute according to the rate and quantity of the sum therein assured ; and the defendants were contented and did thereby promise and bind themselves to the assured, their executors, administrators, and assigns, for the true perform- ance of the premises, confessing themselves paid the consideration due unto them for that assurance by the assured at and after the rale of 5/. 5.s. per cent., to return 8,9. 4d. per cent, for each uncommenced month, and 4.s'. per cent, for every fifteen days the vessel might be laid up unemployed, notice being given ; the risk of fire to be borne during such time by the underwriters ; the said ship was warranted free of average under 3/. per cent., unless general or the ship should be stranded : and the defendants by the said policy undertook the said insurance for the sum of 3000/. sterling : and by a certain memorandum written in the margin of the said policy, it was declared that any claim under the said policy, would be paid in London within ten days after adjustment, p #Qoq* ~i *Averment that the said policy of insurance was so made by the •- -' said H. & J. Johnston & Co. as aforesaid, as the agents for him the plaintiff and on his account, and for his the plaintiff's use and benefit; and that tlie said H. &; J. Johnston & Co. did receive the order for and effect the said policy of insurance as such agents as aforesaid, of all which premises the defendants afterwards, to wit, on the said 2nd o( July, 1842, had notice; and thereupon, on the day and year last aforesaid, in consideration that the plaintiff, at the request of the defendants, had then paid to the^ defendants a certain sum of money, to wit, the sum of 157/. 10s., as a premium or reward for the insu- rance of 3000/. of and upon the premises in the said policy of insurance men- tioned, and had then promised the defendants to perform and fulfil all things in the said policy of insurance contained on the part and behalf of the insured to be performed and fulfilled, the defendants then promised the plaintiff that they the defendants would become and be insurers to the plaintiff of the sum of 3000/. upon the said premises in the said policy of insurance mentioned, and would perform and fulfil all things in the said policy of insurance men- tioned on their part and behalf as such insurers of the said sum of 3000/. to be performed, fulfilled, and observed : averment that the defendants then became and were insurers to the plaintiff, and then duly subscribed the said policy of insurance as such insurers of the said sum of 3000/. sterling upon the premises in the said policy in that behalf mentioned ; that he the plaintiff, at the time of the making of the said policy of insurance was, from thence continually afterwards until and at the time of the loss thereinafter mentioned, interested in the said ship in the said policy of insurance mentioned to a large value and amount, to wit, to the value and amount of all the moneys by him ever insured or caused to be insured thereon ; that theretofore, and after the making of the said insurance, and whilst the said ship or vessel was employed in the coasting trade of the United Kingdom, and after the said 1st of July, 1842, in the said policy of insurance *mentioned, and before the 30th of June, r- *o24* n 1843, in the said policy of insurance also mentioned, to wit, on L -^ the 10th of October, 1842, the said ship or vessel departed and set sail from the port of Liverpool on a voyage to London; that the said ship in the said policy of insurance mentioned, whilst she was proceeding on her said voyage, and before her arrival at London aforesaid, and whilst she was so employed in the coasting trade of the United Kingdom as aforesaid, to wit, on the 12th of October, 1842, upon the high seas, struck against certain rocks, and did thereby then and there founder and sink in the seas aforesaid, and the same ship or vessel, with her tackle, apparel, ordnance, munition, artillery, machi- nery, and other furniture, were then totally lost, destroyed, and sunk in the sea aforesaid, of all which said several premises the defendants afterwards, to wit, on the day and year last aforesaid, had notice, and were then requested by Vol. VII.— E 2 448 ADDENDA. the plaintiff to pay him the said sum of 3000/. so by him insured as aforesaid, and which said sum of 3000/. they the defendants then ought to liave paid according to the form and effect of the said pohcy of insurance, and their said promise "and undertaking so by them made as aforesaid. There was also a count for 3000/. money had and received by the defendants for the use of the plaintiff, and the like sum for money found to be due from the defendants to the plaintiff on an account stated between them. The defendants pleaded — secondly, as to the first count, that the said policy of insurance was not made by the said H. & J. Johnston & Co. as agents for the plaintiff, or on his account, or for his the plaintiff's use and benefit; and that the said H. & J. Johnston & Co. did not receive the order for or effect the said policy of insurance as such agents as aforesaid, as in the said first count was alleged. Sixthly, as to the first count, that the said policy of assurance m that count mentioned was made, and that the said loss of the said ship or vessel happened,, after the passing of a certain act of Parliament made and passed in the session „ -, of Parliament held in the 5th and 6th years of the reign of his L ^'^^^"^ J «late Majesty, King William the 4th, intituled, "An Act to amend and consolidate the laws relating to merchant seamen of the United Kingdom, and for forming and maintaining a register of all the men engaged in that ser- vice ;" that the said ship or vessel was, at the several times of sailing on the said voyage, and of the said loss in the declaration mentioned, respectively, a British registered ship, of the burden of eighty tons and upwards, and that the crew of the said vessel then consisted of divers, to wit, twenty seamen, and twenty other persons, (not being apprentices) and of one master, to wit, one Robert Morris Hunt ; that there was not, at the time of the saiUng of the said ship or vessel on the said voyage in the declaration mentioned, or at any other time before or after, any agreement in writing with the said master and the said seamen and other persons, or any or either of them, signed by the said master and the said seamen and other persons, or any or either of them, specifying what monthly or other wages each of such seamen and other per- sons, being part of the said crew, or any or either of them, was to be paid, the capacity in which he was to act, or the nature of the voyage in which the said ship was intended to be employed; contrary to the statute in that behalf; wherefore the defendants said that the said voyage was wholly illegal : verifi- cation. The plaintiff demurred specially to the second plea, assigumg for cause that the said second plea amounted to the plea of non assumpsit; that the matters of fact therein traversed were included in and might be given in evidence under the issue joined on non assumpsit; that the pleading in the manner as pleaded by the defendants in the said second plea tended to unnecessary prolixity and length ; that the second plea contained a negative pregnant, inasmuch as it was pregnant with doubt whether the defendants by their said second plea meant to say'' that the policy was not made by H. & J. Johnston & Co. as the agents for the plaintiff, or on his account, or for his the plaintiff's use and benefit; ^ . ^ -, that the plea was multifarious and double, and traversed several L "^826* ] *jj,j^tters of fact; and that it was in other respects informal, inarti- ficial, uncertain, and insufficient, &c. The plaintiff also demurred generally to the sixth plea. The defendant joined in demurrer, (a) (a) The matters intended to be argued on the demurrer to the sixth plea were, that the plea was defective in substance, inasmuch as it alleged no facts which would constitute such ADDENDA. 449 TiNDAL, C. J. — The defendants in this case have pleaded two pleas to which the plaintifF has demurred, viz : the second and the sixth. The second plea puts in issue the allegation in the declaration "that tlie said policy of insurance was so made by the said H. & J. Johnston Sc Co. as the agents for him the plaintiff" and on his account, and for his the plaintiff''s use and benefit, and that the said H. & J. Johnston & Co. did receive the order for and effect the said policy of insurance as such agents as aforesaid." The plaintiff" has demurred specially to this plea, assigning, among other causes, that it amounts to the plea of non assumpsit^ and that the matters of fact therein traversed are included in and may be given in evidence under the issue joined on non assumpsit; and such in point of law is, I think, the effect of this traverse. No doubt the plea of 7ion assumpsit puts in issue, not only the promise alleged in the declaration, but also the consideration for such promise. Let us see, then, what is the con- sideration here, and whether non assumpsit does not put in issue virtually the same facts that are placed specially upon the record by the second plea. The declaration alleges that the plaintiff", "by certain persons called or known by the name, style, and firm of H. & J. Johnston &l Co., the plaintifT's agents in that behalf, caused to be made a certain policy of *insurance;" ^ ^anf^ and "that the said policy of insurance was so made by the said L J H. & J. Johnston & Co. as the agents for him the plaintiff" and on his account, and for his the plaintiff''s use and benefit, and that the said H. &l J. Johnston & Co. did receive the order for and effect the said policy of insurance as such agents as aforesaid." It appears on the face of the declaration, therefore, that the policy was eff'ected in the name of H. &; J. Johnston & Co. as agents for tlie plaintiff', and, as alleged on the policy, as agents for the party interested : and the consideration is thus alleged: — "In consideration that the plaintifff", at the request of the defendants, had then paid to the defendants a certain sum of money, to wit, the sum of 157/. 10*., as a premium or reward for the insu- rance of 3000/. of and upon the premises in the said policy of insurance men- tioned, and had then promised the defendants to perform and fulfil all things in the said policy of insurance contained on the part and behalf of the insured to be performed and fulfilled, the defendants then promised the plaintifF that they the defendants would become and be insurers to the plaintiff of the sum of 3000/. upon the said premises in the said policy of insurance mentioned, and would perform and fulfil all things in the said policy of insurance mentioned on their part and behalf as such insurers of the said sum of 3000/. to be per- formed, fulfilled, and observed." Under non assumpsit it would be incumbent on the plaintiff to produce the policy described in the declaration, and to prove that H. &; J. Johnston & Co. made the assurance as his agents. Therefore, it seems to me that precisely the same evidence must be given under non assumpsit as would be requisite to sustain the second plea. And, when it is said that by the form of this traverse it would be necessary for the plaintiflf to shew that H. & J. Johnston & Co. were his agents for that purpose at the very time of eff"ecting the insurance, whereas, if it went to the jury upon non assumpsit only, a subsequent acknowledgment and ratification would suffice ; I must say I am not prepared to admit any such distinction. If a subsequent illegality in the voyage as to render the policy void, or which afforded any answer to the action ; that the plea was further defective in substance, inasmuch as by the 5 & 6 Wm. 4, c. 19, the agreement required to be entered into with seamen before they were carried to sea on any voyage, was to be entered into with them by the master of any ship or vessel, and the penalty for default was inflicted on the master; and the owner of any ship or ves- sel, not having knowledge of the master's defarllt, could not be prejudiced, so as to prevent his recovering on a policy effected on such ship. 450 ADDENDA. r *e«?ft* "1 ratification would be enough in *the one case, I do not see why it L '°^ J should not in the other. On the part of the plaintiff was cited the case of Sutherland v. Pratt, (11 M. &. W. 296) where a plea to a declaration in assumpsit on a policy of insurance, that the policy was not caused to be made by or on behalf of the plaintiff was held bad on special demurrer, as amounting to non assumpsit. I am unable to distinguish that case upon any solid and substantial ground from the present. As far, therefore, as the second plea is concerned, the demurrer must prevail. By the sixth plea the defendants seek to set up as an answer to the action, that the voyage in respect of which the policy declared upon was made was an illegal voyage, by reason of the non-com- pliance with the directions of the statute 5 & 6 Wm. 4, c. 19. There can be no doubt but that a policy effected on a ship upon the prosecution of an illegal voyage is void, and cannot be enforced in a Court of Law. It would be singular, indeed, if the main contract should be void and the collateral contract valid. It may, therefore, be laid down as a general rule, that, where the voyage itself is ille- gal, an assurance for the voyage is also illegal. There are many cases where that has been held to be undoubted law. Thus, in the time of the last war, policies effected on vessels sailing in contravention of the Convoy Acts, 38 Geo. 3, c. 76, and 43 Geo. 3, c. 57, where held void. So, where the voy- age was in breach of the Navigation Act, 6 Geo. 4, c. 109, or of the acts regulating the East India Company or the South Sea Compariy — acts which had in view the general policy of the realm, and the security and encourage- ment of navigation. But it appears to me that the provisions of the statute 5 & 6 Wm. 4, c. 19, were framed for a collateral purpose only : it was intended to give to seamen in the merchant- service a readier mode of ascertaining and enforcing their rights, and to prevent them from having imposed upon them contracts into which they had never in fact entered ; and therefore it enacts, in s. 1, "that it shall not be lawful for any master of any ship or vessel belong- r *ft9q* 1 ^"§ ^° ^^^y subject of his Majesty of this *United Kingdom trading L J to parts beyond the seas, or of any British registered ship of the burthen of eighty tons or upwards employed in any of the fisheries of the United Kingdom, or in trading coastwise or otherwise, to carry to sea on any voyage, either from this kingdom or from any other place, any seaman or other person as one of his crew or complement, (apprentices excepted) without first entering into an agreement in writing with every such seaman, specifying what monthly or other wages each such seaman is to be paid, the capacity in which he is to act, and the nature of the voyage in which the ship is intended to be employed, so that the seaman may have some means of judging of the proba- ble period for which he is likely to be engaged ; and the said agreement shall contain the day of the month and year in which the same shall be made, and shall be signed by the master in the first instance, and by the seamen respec- tively at the port or place at which such seamen shall be respectively shipped : and the master shall cause the same to be, by or in the presence of the party who is to attest their respective signatures thereto, truly and distinctly read over to every such seaman before he shall be required to sign the same, in order that he may be enabled to understand the purport and meaning of the engagement he enters into and the terms to which he is bound." And then the act goes on, in section 4, to provide, that, if any master of any such ship as aforesaid shall carry out to sea aoy seaman (apprentices excepted) without having first entered into such agreement as is thereby required, he shall for every such offence forfeit and pay the sum of 10/. for or in respect of each and every such seaman he shall so carry out contrary to this act; and, if any master shall neglect to cause the agreement to be distinctly read over to each such seaman, as by this act he is enjoined, he shall for every such neglect forfeit and pay the ADDENDA. 45 1 sum of 5/. ; and, if any master shall neglect to deposit with the collector or comptroller of the customs a copy of the agreement thereby required to be made and deposited as aforesaid, [s. 3] or shall wilfully deposit a false copy of any *such agreement, he shall for every such neglect or offence ^ ^ forfeit and pay the sum of 50/. " The non-compliance with these L *^^^* J directions of the statute, though it may furnish good ground of action ao-ainst the master, does not render the voyage illegal. It has been insisted that a non- compliance with the statute at all events amounts to unseaworthiness. The cases, however, that were cited all shew, that, to constitute this sort of unsea- worthiness, it must appear that there was a crew insufficient in point of num- ber, or a want of capacity or intelligence in the master or other officers. Here there is nothing of the kind shewn. I therefore think the sixth plea is also bad J and consequently that upon both the demurrers there must be judgment for the plaintiff. INDEX TO THE PKINCIPAL MATTERS. Pages referred to are those between brackets, thus [ ] AVERAGE, GENERAL. 1. General average is the general contribu- tion that is to be made by all parties towards a loss sustained by some for the benefit of all, 492, 495 2. The principle of this general contribu- tion is derived from the ancient law of Rhodes, being adopted into the Digest, with an ex- press recognition of its true origin, 492 3. In a marine sense, "contribution" and "average" are synonymous terms, 497 4. The rule of the Rhodian law is this : — *'If goods are thrown overboard, in order to lighten a ship, the loss incurred for the sake of all shall be made good by the contribution of all, 497 5. In case of necessity, for saving the lives of the passengers in a ship, it is lawful for any one passenger to throw the goods of ano- ther overboard ; and where the danger ac- crued only by the act of God, as by tempest, every man ought to bear his loss for the safe- guard and life of a man, 498 6. In a general average, one thing is cer- tainly necessary, viz : that the ship be in dis- tress, and that sacrificing a part be necessary to preserve the rest, 499 7. Previous deliberation is not an essential ingredient in determining a casting overboard, if the master and crew agree that it is neces- sary : too much care and selection of goods very justly would excite a suspicion of fraud, 499 8. If the ship ride out the storm, it is the duty of the master, if she arrive at her port of destination, or at any other port, to draw up an account of the jettison, and verify the same by the oath of himself or of some of his crew, as soon as possible, that there be no opportunity to purloin goods, and then pre- tend they were cast over in the hour of dan- ger, 500 9. If the jettison does not save the ship, but she perish in the storm, the goods saved are not to contribute to the loss of the goods cast overboard, because the object of the jet- tison was not attained, 500 10. But if the ship be saved, and pursue her voyage, and afterwards be lost, the goods saved from the subsequent loss shall contri- bute to the loss of the goods cast over on the former occasion, 500 11. If in the act of jettison, or in conse- quence of it, other goods are broken, damaged, or destroyed, the value of these must be in- cluded in the general contribution, and dam- age done to the ship by cutting holes to effect jettison, or to let out the water, 500 12. If the ship be obliged to take refuge in a port to which she was not destined, and which she cannot enter without lightening the ship by taking out part of the cargo, and the part is lost in the craft to the shore, this loss, which was occasioned by the removal for a general benefit, must be repaid by a general contribution, 501 13. All loss which arises in consequence of extraordinary sacrifices, or expenses incur- red for the preservation of the ship and cargo come within the description of general aver- age, 501 14. The expense of repairing a ship in- jured by resisting a privateer, curing the wounds of the sailors, and the ammunition expended, are not the subject of a general average, 502 15. A master who has cut his mast, parted with his cable, or any other part of the ship, in order to save the ship, he is entitled to compensation by a general average, 503 16. But where a vessel carried a press of sail, to avoid a privateer, and was damaged, this is not a general average loss, 503 17. Goods laden on deck, unless sanc- tioned by the usage of trade, though they 454 INDEX. must contribute to a loss, are not themselves the subject of a general average, 504 18. But the owner of a cargo of timber laden on deck, pursuant to the usage of the trade, is entitled to a contribution, in the nature of general average, for a loss by jet- tison, 504 1 9. And where, in an action by a shipown- er against the underwriter on " the ship," the declaration stated that certain pigs were thrown overboard, for the safety of the ship, and the plaiiititVwas afterwards forced to con- tribute to the general average. Plea, that the pigs were laden on deck, by reason whereof the defendants were not liable to contribute to the average. Held bad, for not showing that the lading was improper under the cir- cumstances, 505 20. Boats ought to be lashed on deck, but if lashed to the quarters they are entitled to contribution, 513 21. In whaling voyages it is the practice to adjust, on the principles of general aver- age, the loss of oil, thrown overboard from the deck, where it is carried a short time be- fore it can be properly and safely stowed in the hold, 513 22. If a ship be carried by force into a port, the charges of reclaiming her, and the extra wages and expen.ses during the deten- tion, are the subject of a general average, 515 23. Extraordinary wages and provisions expended during the time a ship goes into a port to repair, are not the subject of a gen- eral average, unless in the case of urgent ne- cessity, 516 24. Where a ship is obhged to go into a port for the benefit of the whole concern, the charges of unloading and reloading the cargo, and the wages and provisions of the work- men hired for the repairs, are general aver- age, 517 25. The wages and provisions, and the expenses of repairs, where a sliip goes into port in order to repair damage by a tempest, are not the subject of a general average, 519 26. General principle to be derived from these decisions, 520 27. If the master cannot borrow money to repair his ship on the security of ship or cargo, he may sell part of the cargo to repair her, so as to enable her to take the remainder of the cargo to its port of destination ; and the money so obtained will make the subject of a general average, 521 28. Goods are to be contribute according to their value, 522 29. Wearing apparel and jewels belonging to the person do not contribute. 522 30. Seamen's wages do not contribute, 522 31. In what proportions ship, freight, and cargo, shall contribute, 523 32. The value at which the goods cast overboard are to be estimated, and for what value those saved are to contribute, 524 33. The time when the contribution is to be made, 525 34. The place at which the average is to be adjusted, 527 35. The adjustment is to be made accord- ing to the law of that place, 527 ARRESTS, RESTRAINTS, DETEN- TION OF PRINCES, &c. See Total Losses and Aiiandonment. 1. Malynesays, " that the assurers are lia- ble for all lo.sses by arrests, detentions, &c., happening both in time of war and peace, committed by the public authority of princes, &c., 305 See Roccus's Opinion, ib. 2. Lord Mansfield said, in the ca.se of Goss v. Withers, that the assured may abandon in case merely of an arrest on an embargo, by a prince not an enemy ; and consequently such an arrest is a loss within the meaning of the word "detention," 296, 305 3. The term "people,", in the clause, means the supreme power — the power of the country, whatever it may be, 306 4. What is an embargo] An embargo is an arrest laid on ships or merchandise, by pubUc authoriry, or a prohibition of state, commonly issued to prevent foreign ships from putting to sea in time of war, and some- times also to exclude them from entering our ports, 306 5. This term has also a more extensive signification, where ships are detained by a prince to serve him in an expedition, and for this end have their ladings taken out, with- out any regard to the government they obey, 307 6. An embargo may be laid on shipping in the ports of Great Britain by royal procla- mation, in time of war, because a proclama- tion is founded on a prior prerogative, viz : that the king may prohibit any of his subjects from leaving the realm, 307 7. But in times of peace the power of the King of Great Britain to lay such restraints is doubtful, 307 8. Where a neutral vessel was seized by a foreign power, and carried into port, to be searched for enemy's property, all charges arising out of the improper detention must be borne by the underwriters, 308 9. A neutral ship is insured at and from an enemy's port, and an embargo is there laid on by the enemy. The assured may aban- don, and recover a total loss, 310 10. A British merchant is not answerable for the damage which may happen to a for- eign ship by reason of an embargo laid on by the British Government, 312 INDEX. 455 11. Where the assured is a subject of this country, he may recover against a British underwriter for a loss arising out of a deten- tion by the British Government, 313 12. Every man is a party to the public acts of his own Government, and cannot make the consequences of an act of his own state the foundation of a claim of indemnity upon a British subject in a British court of justice, any more than he could if such act had been done immediately and individually by such foreign subject himself, 313 13. Where a consignor has made a policy, and his conduct or that of his nation has de- prived him of the right of enforcing it, for his own benefit, the consignee cannot apply it to his own interest as if it had been made on his account, 319 14. An alien enemy, with respect to his birth, domiciled in this country may, in the time of war, protect by insurance, either for his own benefit or his correspondent's, a ship- ment licensed by the Crown to the enemy's country, 320 15. A plaintiff, an alien in respect to his birth, may, if domiciled here, sue in our Courts. The legal result being that not only the plaintiff, the person licensed may sue, but that the commerce itself is to be regarded as legaUzed for all purposes of its due and effectual protection, 320 See the subject of *« Licenses," Part 2, Sect. 2. 16. By the law of nations notification of a blockade is notice to all the subjects of ihe na- tion to which the notification has been made. But, in cases of insurance, knowledge of the fact must be proved in the assured, 315 17. In a policy of insurance from Liver- pool to a blockaded port, the ship sailed on the voyage before the blockade was notified in this country, but afterwards put into ano- ther port in this kingdom after notification of the blockade in the London Gazette, and it might be known there : the jury found the captain did not know of the blockade. Held that the knowledge of the captain was not to be presumed on the principle that notice to a state is notice to all its subjects, but it was a question of fact properly left to the jury, 315 THE ASSURED. 1. Who may by law be the assured in a marine policy of assurance, 1 2. Exception in the case of alien enemies, 2 3. The descriptions of the persons enabled to sue on the policy, by 28 Geo. 3, c. 56, 3 4. Decisions on this act, 4 5. Any of his Majesty's subjects may make an insurance alleging the interest to be in his Majesty, and his Majesty may adopt and ra- tify it, 7 THE ASSURERS. 1 . By the common law any individual or number of individuals acting in partnership might be assurers, 530 2. But this giving rise to a set of adven- turers who got the premiums and could not pay the losses, the law was altered by found- ing two chartered companies, giving them a monopoly ; and prohibiting persons in part- nership being assurers, 530 3. In more modern times this has been altered ; and at this day any persons, whether in partnership or not, may be assurers, 531 4. But the two chartered companies retain their charters. See an account of them, 531 5. Of private assurers the most important are the underwriters who are members of Lloyd's coffee-house, 532 BARRATRY. 1. Barratry is defined by Postlethwaite in his Diet, to be "when the master of a ship, or the mariners, cheat the owners or assurers, whether by running away with the ship, sink- ing her, deserting her, or embezzling the cargo. And in vol. i, p. 136, title "Assurance," he says, " one species of barratry in a marine sense, is, when the master of a ship defrauds the owners or assurers of her, by taking her in a different course to their orders," 322 2. Lord Mansfield, in Vallejo v. Wheeler, Cowp. p. 153, says, "I take the word to have been introduced by the Italians, the great traders of the modern world." In the Italian Diet, the word "barratrare" means to cheat, 324, 334 3. Whether the loss takes place during the fraudulent voyage or after is immaterial, because the voyage is equally altered, 325 4. Where a ship and her cargo were bar- ratrously taken out of her course by the mas- ter and mariners, and part of the cargo sold, and the remainder sent home in another ves- sel, held that this was a total loss of the cargo the moment the act of " banatry" was com- mitted, 326 5. The loss must take place during the voyage, and within the time limited by the policy, 328 6. Where the owner of a ship, by a con- tract, placed the entire vessel for a time under the sole control of the freighter, an act done by the general owner, or with his consent, in fraud of the freighter, is an act of "barratry," 329 7. Mr. J. Willes's definition of " barratry," 329 8. If the master deviate from the voyage on a private speculation of his own it consti- tutes "barratry," 325, 330 9 . If a master, contrary to his instructions, cruise for and take a prize, it is "barratry," 331 456 INDEX. 10. The master of an American slave ship sails to an enemy's settlement on the coast for the purpose of trading to more advantage than at a British settlement without having instructions to go there ; his ship was seized by a British frigate : this trading was held to be "barratry," 331 1 1 . The master must do nothing contrary to the laws of his country, whether with or without a view to the advantages of his own- ers, 335 12. In the sense in which "barratry" is used, as applied to subjects of British marine insurances, it is considered precisely tanta- mount to fraud, 334 13. If the master of a ship sail out of port without paying port dues, whereby the goods are forfeited, lost or spoiled, this is "barra- try," 335 14. If the master sail out of port without leave in breach of an embargo, in conse- quence of which the owners afterwards sus- tain a loss, in respect of sailors' wages and provisions, by the detention of the ship, this is "barratry," 336 15. If the conduct of the master is crimi- nal with respect to the state it is "barratry," although likely in his opinion to advance his owner's interest, 337 16. A deviation by the master through a mistake as to the meaning of his instructions, or a misapprehension of the best mode of car- rying them into effect, will not constitute "barratry," 338 17. The freighter for the voyage is owner of the ship, pro hdc vice, and "barratry" cannot be committed with his consent, 339 18. But an act of the captain with the consent of the owner of the ship, though without the privity of the owners of the goods, does not constitute "barratry," 340 19. Barratry cannot be committed against any but the owners of the ship, 341 20. If an owner be likewise master he cannot commit "barratry," 242 21. The mortgagor of a ship is sufficient- ly the owner to disable him from committing "barratry" if he also be master, 442 22. And the Court of Chancery, in a case in which the owner and master after mort- gaging his ship had committed "barratry," and when the mortgagee brought an action against the underwriter to recover damages for the loss he had sustained by this act of •'barratry," still considering the mortgagor the owner, granted an injunction, 342 23. A loss is well alleged to have hap- pened by the perils of the sea, if supported by proof of the ship being wrecked, although this may have been occasioned by the "bar- ratry" of the master and mariners, 344 24. A loss is well alleged to have hap- pened by "barratry" though it be proved to have taken place by the joint act of the ene- my, aided by the crew, 344 25. The laws of this country, and the or- dinances of some foreign nations, for the punishment of those who have been found guilty of the more heinous acts of "barra- try," 345 26. And of piracy, 347 BROKER. 1 . The insurance broker goes between the assured and the underwriter, 533 2. He is answerable in an action by his employer (the merchant) if he accepts a re- tainer, and fails in performing his duty, 533, 536 3. The broker is agent both to the assured and the underwriter, 534 4. He sometimes acts under a del credere commission, 534 5. As the brokers transact the principal part of the business for the merchants, the law gives them a lien upon the policy, 535 6. Although the broker has a Hen, he may be served with a " subpoena duces tecum," on a trial between the assured and the under- writer, to produce the policy, for he does not thereby lose his lien, 536 7. There are three cases in which a mer- chant has a right to expect that a broker will obey an order to insure, 537 8. If a broker in making a policy, omits any circumstance, which will be a defence in an action by the assured against the under- writer, he is liable in an action to the amount of the assured's loss, 538 9. In an action against a broker for negli- gence, though the evidence of brokers and underwriters is not admissible upon a matter of fact upon which the jury are to give their verdict, yet they may be called to shew whether other persons of skill and experience in the same profession, would or would not have come to the same conclusion as the de- fendant, 539 10. In an action against an agent for a breach of undertaking according to special instructions, the declaration alleged the duty of the defendant to be, to make the insurance according to the terms, or give notice to the plaintiff of their inabiUty to do so. Held, that the implied duty of the defendant would support the express promise alleged in the declaration, 54 1 11. And where in an action against a broker for not making an insurance accord- ing to his undertaking, and the plaintiff re- covered a verdict, on a motion for an arrest of judgment, on the ground that the duty al- leged in the declaration to make an insurance was larger than the duty of the defendant, who only ought to have used reasonable care INDEX. 457 and diligence to perform what he had under- taken. Held, that the action was founded on an express contract, and the breach not larger than the terms of the contract, and the allegation that the defendant, to perform his promise "wrongfully and in breach of his duty and retainer, and of his acceptance thereof, wholly neglected and refused," was a legal charge on the face of the declaration, and sufficient to call on the defendant for an answer, 545 13. If in an action against an agent, the neglect complained of, be the non-commu- nication of a material fact to the underwriters by which the policy was voided, the agent may by way of defence make it appear that the fact, if communicated, would have made it impossible to get the insurance made at the premium limited by his instructions, 545 13. Settlement between the broker, the underwriter, and the assured, 546 14. The receipt of the premium on the face of the policy, is a bar to an action by the underwriter against the assured, except in the case of fraud, 547 15. But between the underwriter and the broker the receipt is no bar, 547 16. In an action by the assured against the underwriter, the latter cannot set off the pre- mium though he has not been paid by the broker, 549 17. In an action by the assignees of an underwriter against a broker for premium, the broker may set off losses which have hap- pened before the bankruptcy, for which pre- miums the underwriter had debited the broker, 552 18. See the earlier cases relating to the effect of the death or bankruptcy of the un- derwriters had on the running accounts be- tween them and the broker, 553, 556 19. The usage at Lloyd's of passing the accounts between the broker, the underwriter, and the assured, 556, 567 BOTTOMRY, AND RESPONDENTIA INTEREST. 1. Must be specially mentioned in the poli- cy as such, 15 2. But an interest in expenses, incurred by the captain for the use of the ship, for which he charged respondentia interest, was held to be protected by a policy on « ' goods, specie, and effects" of the captain, on the grounds solely of the usage of the Indian trade, 18 CAPTURE. 1. When a British subject insures against capture, the law infers that the contract con- tains an exception of captures made by the government of his own country, 287 2. All insurances of enemies' property, from the effects of the acts of the government of the country of the underwriters, are illegal at the common law, and cannot be enforced, 287 3. A ship insured being taken, the assured may demand as for a total loss, and abandon to the underwriter, 287 4. By the common law the thing taken from the owner in war is gone, and the pro- perty so taken in war belongs to the captors, 290 5. On a policy, "interest or no interest," a recapture, after being in an enemy's port will not avail the assurer, 291 6. It is immaterial, as between the assured and the assurer, whether the property by cap- ture be or be not transferred to the enemy by the law of nations, 293 7. If the ship taken by an enemy escapes, or is retaken, his property in the ship is re- vested, 294 8. The practice of the Court of Admiralty in England before any act of Parliament com- manded restitution, or fixed the rate of salvage, 295 9. Whatever rule ought to be adopted in favor of the owner, it can in no way effect the case between the assured and the assurer, 295 10. The ship is lost by capture, though she be never condemned at all nor carried into any port of the enemy, the assurer must pay the value, 295 1 1 . The assurer runs the risk of the as- sured, and undertakes to indemnify, he must therefore bear the loss actually sustained, and can be liable to no more, 296 12. There is no book, ancient or modern which does not say, "that in case of the ship being taken, the assured may demand as for a total loss and abandon. And what proves the proposition most strongly is, that by the general law he may abandon in the case merely of an arrest, on an embargo, by a prince not an enemy, 296 13. The chance of restitution does not sus- pend the demand for a total loss upon the assurer, but justice is done by putting him in the place of the assured in case of recapture. 14. In the Treatise called "Le Guidon," where, after mentioning the right to abandon upon a capture, he adds, "or any other such disturbance as defeats the voyage, or makes it not worth while, or worth the freight to pur- sue it," 297 15. Where a neutral ship was unjustly seized as a prize, and being libelled in the Court of Admiralty by a decree, against which an appeal might have been made ; but the owners dreading the hazard, the costs and the delay, entered into a compromise with the captors that they should for a sum of money suffer a reversal of the sentence ; held that the 458 rNDEX. assurers were liable to pay the money agreed on, and paid lo tl»e captors, 298 10. It is unlawCul to ransom any British ship taken by the enemy, 300 17. The sentence of a French consul in a neutral country is contrary to the law of na- tions, and void, 301 18. What is a proper averment of the loss by capture, and when it can be rightly madel 302 DEVIATION.— «ce Ship. FIRE. 1. "Fire" is expressly insured against by the underwriters in the policy, 278 2. And where the rigging, &c. of a ship were put on shore in the usual course of the voyage during a repair, and were burnt by accident, the underwriters were held liable, 278 3. And where a ship was voluntarily burnt to prevent her falling into the hands of the enemy : this was held to be a loss by "fire" within the terms of the policy, 282 4. And where a fire was lighted in a ship and by negligence set her on fire, this was held to be a loss by "fire" within the terms of the policy, 282 5. And where an insurance on "ship and furniture," provisions which had been sent out for the use of the ship, were taken out of the vessel while refitting and put in a ware- house in the regular course of the trade, and were burnt by accident, it was held, that as the underwriters had insured against "fire" by the policy, that the provisions that had been consumed by "fire," and not by the crew were protected by the policy, 91 EMBARGO. See "Areest, Detention of Kings, &c." '•Total Losses and Abandonment." FRAUD IN POLICIES. 1. Policies are vacated and annulled by the least shadow of fraud or undue concealment, 571 2. There are three distinct cases where the policy may be vacated by the assured or his agent, 572 3. First, — where the assured or his agent has made some statement which he knew to be false, 573 4. Where goods were insured as the goods of an ally, but were in fact the goods of an enemy, this is a fraud and the policy is void, 573 5. Where an agent received a letter stating a ship to have sailed on the 24th November, and the agent told the underwriter that she sailed on the latter end of December, this is a fraud and the policy void, 573 6. Where a ship was warranted a Portu- guese, and the assured by bis answer to a bill, admitted that she was condemned for not being a Portuguese. Policy void, 574 7. A representation (contrary to the truth) that the insurance sought to be made, bad been made by other underwriters at the same premium, vitiates the policy made by means of such misrepresentation, 575 8. Secondly, — case where the assured has stated something to be true, vvliich he does not know to be true, and at the same time suppressing material circumstances, 576 9. The concealment of material circum- stances vitiates all contracts on the principle of natural law, 57G 10. On a representation to induce a party to make a contract, it is equally false for a man to affirm that of which he knows noth- ing, as it is to aflirm that to be true which ho knows to be false, 576 11. When the assured having heard a re- port that a ship described like his was taken, went and insured her without mentioning the rumour to the underwriter. Policy held to be void, 578 12. The time of a ship's sailing is not ma- terial to be communicated, unless she be a missing ship, or unless a ship which sailed after her has arrived, 579 13. A ship takes in her cargo at L. and sails to G. An insurance is made on the goods from G. to D., "to begin from the loading." The policy is void, it being a false description, calculated to induce a belief that G. was the port of loading, 581 14. Concealment of a letter from which the time of the sailing of the ship might be inferred, is material, 583 15. A broker's instructions stated that a ship was ready to sail on the 24th December. The broker represented the ship to be in port, when she, in fact, sailed on December 23. This was held to be a material misrepresenta- tion, 583 16. Evidence of underwriters is admissible to prove what, in their judgment, is a mate- rial concealment of a fact, 584 17. The governor of a fort abroad insures against capture for a year: it is not necessary to disclose his speculations on the probability of an attack, 586 18. The underwriter trusts the statement of the assured, and that he does not keep back any circumstances within his knowledge to mislead him, 587 19. The assured need not mention what the underwriter knows, what he takes upon himself the knowledge of, or what he waives being told, 588 20. The underwriter is bound to take no- tice of natural and political perils, 588 21. The opinion of brokers and under- writers may be asked as to matters of prac- INDEX. 459 tice in their profession; but they cannot be asked as to the materiality of a fact on which the jury are to give their verdict, 596 22. Tlie insured is not bound to disclose a circumstance made material by a foreign ordi- nance of v^hich he was ignorant, 601 23. Thirdly, — Cases in which the policy is void by misrepresentation, 602 24. Where a ship sailed with a greater force than was represented to the underwriters, held that the representation was substantially true, 602 25. Distinction between a warranty and a representation, 601 26. A ship insured on the 30th January, from New York to Philadelphia, is represent- ed to be safe in the Delaware on the 11th December, when, in fact, she was lost on the 9th. This was held to avoid the policy, though the bona fide result of the assured's computation, 610 27. A material concealment avoids the poli- cy, although the broker thinks it immaterial, 612 28. An expectation does not amount to a representation, 612 29. Where a ship is insured at and from a place, and does not arrive there for some time, this need not be communicated; but it is for the jury to say whether the delay varies the risk, 613 30. A letter ordering an insurance is put into the post before the loss, but starts after the loss is known. This is a misrepresenta- tion, whether arising from fraud or negli- gence, 615 31. To an action on a policy made on a ship the defendant pleaded, ' that at the time of making the policy, the plaintiff wrongfully and improperly concealed from the defendant certain facts and information which the jury at the trial found to be material, and was known to the plaintiff when the policy was made. Held (dubitante, Pollock, C. B.,) that the defendant ought to have given some evidence of the non-communication of the fact, in support of his plea, 617 32. Where the policy was void by the fraud of the assured, the premium was decreed to be returned, 626 33. Where it was clear that the assured had heard of the loss before an order was given to insure, it was held that the premium should not be delivered back, 628 34. If an underwriter has been guilly of fraud, an action lies against him to recover the premium, 629 FREIGHT. 1. General principles relating to the com- mencement of the risk thereon, 159 2. The cargo ready to be put on board, but the ship not ready to receive it, the policy does not attach, 160 3. In the case of a valued policy a part of the cargo only on board, the rest ready, the assured recovered for the whole, 160 4. If a ship be chartered to a certain place to take in her cargo, and on her way there be lost, the underwriter on freight is liable, 163 5. Where a ship was chartered from A. to B., and back, at a certain freight for the out- ward voyage and the current freight home, and before she unloads her cargo, and before any of the homeward cargo is shipped, she is lost, the policy on the homeward freight at- tached, 165 6. Where freight was agreed to be paid when part of the voyage was performed ; but, before the freight was paid, or the voyage fin- ished, the ship was lost; as the charter-party treated the whole as one voyage, the policy on the freight attached, 165 7. When there is not an entire charter- party for the whole voyage out and home, and the ship takes out a cargo to be bartered for goods to be brought home, and a part of the outward-cargo is only discharged and bartered, the assurer on freight for the homeward voy- age can only recover for the freight of the goods on board, 167 8. Where a ship under a charter-party was in a condition to take in her cargo, which was ready for her, but was lost in a hurricane be- fore the goods were put on board, held that the policy on the freight attached, 170 9. In all cases where the freight is lost by a peril insured against, the assured is entitled to recover, though no goods be actually on board, provided the ship is ready to receive them, and the goods are ready to be shipped, or the owner has a contract with any one for their shipment, 171 to 175 ILLEGAL VOYAGES, 1. Where an insurance is made on a voy- age expressly prohibited by the common, sta- tute, or maritime law, the policy is void, 630 2. Where an insurance was made upon a cargo of goods exported to New York, in direct contravention of an act of Parliament, held that the insurance was void, 631 3. Where an insurance was made in direct contravention of the exclusive right of trading granted to the East India Company by 9 & 10 Wra. 3, c. 44, the underwriters were held to be discharged, 632 4. A natural-born subject of this country, domiciled in a foreign country in amity with this, may exercise the privileges of a subject where he is domiciled, 634 5. If a merchant expatriates himself as a merchant, to carry on the trade of another country, he is to be deemed a merchant of that country, 635 6. If a ship be insured "at and from" a place, and whilst she is there is engaged in 4G0 INDEX. an illegal traffic, the assured cannot recover for a loss arising in the homeward voyage, G35 7. If a ship, though neutral, he insured on a voyage [jrohibited by an embargo laid on in lime of war by the prince of the country in whose ports the ship happens to be, the in- surance is void, 636 8. 15 ut this rule docs not extend to trading contrary to the revenue laws of a foreign country ; for no nation takes notice of the revenue laws of another, 638 9. How far trading with an enemy in time of actual war is illegal, 640 10. By the law of England, 641 11. An insurance on a neutral vessel trad- ing to an enemy's country is valid, 642 12. Upon the breaking out of a war, neu- trals have a right to carry on their accustomed trade, with the exception of contraband ar- ticles, &c., 642 13. But a neutral has no right to engage in the colonial trade of either of the belliger- ent parties, which he never possessed in time of peace, 643 14. By the common law, the trading with an enemy without the king's license is illegal, 644 15. The power of licensing particular trades with hostile states, in time of war, is part of the prerogative of the Crown, 644 16. The king may qualify his license, which must be strictly conformed to, 645 1 7. The condition must be strictly complied with, 647 18. The party having the license must show his authorit)' to have it, and how he ob- tained it, 647 19. The fraudulent alteration of a license avoids it, even where the party claiming its protection is innocent of the fraud, 648 20. The Courts of Justice will permit every thing to be done, though not expressed, which is necessary in order to effectuate the inten- tion of his Majesty in granting the license, 648 21. If the voyage, by unavoidable accident, be delayed beyond the time for which the li- cense was granted, yet if the licensed adven- ture be bond fide prosecuted within any part of the period, the voyage is protected, and the policy on it valid, 652 22. An insurance made on behalf and on account of an alien enemy, not protected by a license, is void, though the goods were shipped before the war commenced. Nor can his agent maintain the action, though a credi- tor of the assured to more than the sum as- sured, 653 23. Neither can an action be maintained on a policy on the property of an alien enemy, though of British manufacture, and exported from hence, 653 24. An insurance made in Great Britain on a French ship, previous to the commence- ment of hostilities between Great Britain and France, does not cover a loss by British cap- ture, 655 25. When a British subject insures against captures, the law infers that the contract con- tains an exception of captures made by the government of his own country, 658 30. Where a voyage is prohibited by the navigation laws of this country, the insurance upon the adventure is illegal also, and there- fore void, 059 27. By a recent act against smuggling, persons insuring the delivery of prohibited goods, are to forfeit 500/. over and above any other penalty to which he may be liable. And there is the like penalty on the assured, 660 28. Where part of a cargo is legal, but in- tended to cover an illegal design, the whole policy is void. But if part of a cargo be li- censed, an insurance of that part is not vitia- ted, though another part is not licensed and illegal, if there be no fraud, 660 29. Where an exportation was protected by a valued policy, the goods to be thereafter specified, and the specification contained pro- hibited goods, the contract was entire, and the policy void, 661 30. A sentence against a neutral by a Bri- tish Vice Admiralty Court, is sufficient from which to presume that the ship had been en- gaged in some illegal transaction. A neutral meeting by an agreement a British vessel for the purpose of receiving gunpowder and arms, is illegal, even though the latter should have had a license to export them for the benefit of trade, 661 INTEREST INSURABLE IN GOODS AND PROPERTY, &c. Set Usage. 1. Some things must be specially named in the policy. Horses and other live animals, &c., 14 2. Bottomry and respondentia interest must be so specially stated in the policy, 15 3. Special interests in goods may be recov- ered under the term <' goods" in the printed policy, 17 4. And generally it is necessary to state accurately the subject-matter of the insurance, but it is not essential to state the nature of the interest, 17 5. Where the consignee of goods pledges the bill of lading with another person as a se- curity for advances made by him, and upon an agreement that the consignee shall make an insurance on the goods for the benefit of the pledgee, and deposit the policy with him, the pledgee may sue on the pohcy in his own name, 35 6. At common law, a person might insure without having any interest, 33 INDEX. 461 7. It "is settled that the merchant need only prove some interest to take it out of 19 Geo. 2." Lord Mansfield, 37,39 8. Profits expected to be made, are a good insurable interest, 38 9. And where the expected profit is valued in the policy, this does not make it a "wager" policy ; the plaintiff must prove some value, but it is not necessary to go into the whole, 39 10. The distinction between a valued and a wager policy is this, if the plaintiff must prove his interest, and the policy only saves him the trouble of showing its amount, it is a valued policy and good : but if it dispenses with all proof of interest, it is within the act and void, 39 11. The commissions of the assured as consignee of the cargo, valued at 1,500/., held a 'good insurable interest.' 40 12. The principle of insuring profits is grounded on the justice of allowing maritime j adventurers to protect by insurance not only the thing immediately subjected to the perils insured against, but also the advantages aris- ing from the arrival of the thing insured safely at its place of destination, 41 13. But there must be a reasonable certainty of the profits, and not a mere speculative ex- pectation, 47 14. And the assured must show that but for the intervention of the perils insured against, profit would have been made, 47 15. Where goods were expected to arrive by a particular ship, but there was no con- tract in respect to the goods which the assured could have enforced, he has not an insurable interest : it amounts, in fact, to an insurance on a void contract, 50 16. An insurance made on any packet boats which should sail from Lisbon to Fal- mouth, for one year, upon any "kind of goods." The assured had an interest in bul- lion on the Hanover packet, one of the King's packets between Lisbon and Falmouth ; it was lost within the time in the policy: as- sured had an insurable interest, 50 17. The captors of a prize have an insur- able interest in such prize, on the ground of their having a reasonable expectation of their receiving from the Crown the property cap- tured, 5 1 18. The commissioners authorized by sta- tute to take into their care all Dutch ships de- tained or brought into the British ports, and dispose of them according to directions from the Privy Council, may insure them in their own names after seizure at sea on their voy- age to England, 55 19. The King has an undoubted insurable interest in the ships and cargo taken posses- sion of under the authority of the statute, 56 20. And where an insurance is made for the benefit of his Majesty without his know- ledge, his Majesty may ratify it, and the in- surance will enure to his benefit, 60 21. The above rule applies to any person, 62 22. A defeasible right is frequently insur- able. The indefeasibiiity of it is not the cri- terion of an insurable interest, 66 23. A consignee has a good insurable in- terest, 68 24. If at the time of making an insurance, the assured had an insurable interest in the thing insured, it is immaterial that the pro- perty may have passed to another party, for the assured may sue for his benefit, 70 25. If goods be consigned to a merchant, and he makes an insurance upon them when he knows they have been despatched, and then a "stoppage in transitu" takes place, and then a loss, the assured cannot sue, for he had lost his right in his interest before the loss happened, 71 26. Where the Courts see that on the face of the policy there is no contract of indemnity between the parties, but only a gaming trans- j action, they never hesitate in declaring the ] policy void, 72 27. Where by the express terms of a char- ter-party, the shipowner makes a stipulation with the freighter, that part of the freight shall be paid in advance, the freighter has an insurable interest in that advance : but a mere loan for the use of the ship gives him no insurable interest, 74 28. The underwriters on a policy "on mer- chandises," are not liable to charges and ex- penses incurred at the ship's port of loading, considered as additional value imparted to the goods, 77 JETTISON. Where a captain threv/ a quantity of dol- lars overboard, to prevent them falling into the hands of the enemy, by whom he was about to be attacked, and was immediately after captured, this was held to be a loss by "jettison" in the general use of the terra, or at any rate to be a loss ejusdeni generis, and protected by the general terms of the policy "all other perils," «&c. 285 "LOST, OR NOT LOST." 1. These words are peculiar to English po- licies, 10 2. If the contingent event has happened at the time of making the insurance to the know- ledge of one of the parties only, the policy is void on the ground of fraud, 11 3. The assured makes no assurance to the assurer that the ship or goods are safe at the time of making the insurance, 10 4. A party may make an insurance on "goods" "lost or not lost," though he may 462 INDEX. have acquired his interest after an average loss has happened, unless he bought them with a knowledge of the damage, 12 5. It is no answer to an action on a pohcy "lost or not lost," that the interest was not acquired till after the loss, 12 6. Such a policy is a "contract of indem- nity" for past as well as future losses, 12 LOSSES. I. Total. II. Average. I. Total Losses and Abandonment. 1. The words in the policy, "and in case of any loss or misfortune," lead to the in- quiry respecting the distinction between total and average losses, 354 2. The doctrine of total losses " on goods" as distinguished from average losses explained, 355 3. Whether a loss ' ' on goods" be total or average in its nature must depend upon gen- eral principles, 357 4. The object of the policy is to obtain an indemnity for any loss the assured may sus- tain by the goods being prevented, by the perils of the sea, from arriving in safety at their place of destination, 357 5. Whether, upon such an event, the loss is total or average depends upon circum- stances; but the existence of the goods, or any part of them in specie, is neither a con- clusive nor in many cases a material circum- stance to that question, 357, 358 6. If the goods be of an imperishal)le na- ture, if the assured become possessed of them, and have an opportunity of sending them to their destination, the mere retardation of their arrival may be of no prejudice to them, more than the expense of reshipment. In such a case the loss can be but an average loss even though the assured elect to sell them where they have been landed, 358 7. But if the goods once damaged bv the perils of the sea, are, by reason of that dam- age, in such a state, though the species inay not be utterly destroyed, that they cannot be reshi|)p<;d into the same or any other vessel ; if that before the termination of the original voyage the species itself would disappear, and the goods assume a new form, losing all their original character; if, though imperishable, they are in the hands of strangers, not under the control of the assured, if by any circum- stances over which he has no control, thoy can never, or in any assignaiile period, he brought to their original destination ; in any of these cases, the circumstance of their being in specie at that forced determination of the risk, is of no importance. The loss is, in its nature, total to him who has no means of re- covering his goods, whether his inability arises from their annihilation or from any other in- superable obstacle, 358 8. When a total loss has thus taken place before the termination of the insured voyage, with a salvage of some portion of the subject insured which has been converted into money, the assured may recover as for a total loss without an abandonment, 360, 366 9. Some account of the origin and history of abandonment, 361 10. The history of our own laws furnishes few, if any, illustrations on the subject before the time of Lord Mansfield ; and that great Judge, in laying down the rules and princi- ples in the leading cases on this subject, was obliged to resort to the aid of foreign codes and to the opinions of foreign jurists, for his guide and information, 361 1 1 . And even those foreign rules are of very modern date, 361 12. When a policy of assurance was con- sidered in the nature of a wager, the notion of abandonment was never entertained or thought of, 351 13. When assurances became contracts of indemnity, the obligation of abandonment be- came the necessary consequence of confining the contract to that object, 362 14. In some foreign codes abandonment was imperative, and such formerly was the law in France, by the ordinances of Louis XIV. in 1681. But now, by the code of commerce, abandonment is confined to those effects which are the object of the assurance and the risk, 363 15. But now the law relating to marine insurances is quite settled in this country, and the nature and principle of the law of aban- donment is quite established by decisions in our courts of justice, 364 16. The assurer engages that the thing in- sured shall arrive at its destined termination in perfect safety, 364 17. The assured when he elects to treat a case as a total loss, must make a cession to the assurer of all his right, and in a reasonable time, 365 IS. The assured may prevent himself from recovering a total loss, if he voluntarily does any act whereby the interests of the underwri- ters may be prejudiced, 366 19. In ca[)ture the chance of restitution does not suspend the demand for a total loss upon the underwriter, 371 20. In questions upon policies, the contract as an indemnity, and nothing else, is always liberally considered, 371 21. In all cases the assured may elect not to abandon, 372 22. The master cannot sell the ship in case of a loss, except in a case of absolute ne- cessity, 378 23. As between the assured and assurer, the ship is totally lost by capture, though by INDEX. 463 recapture it may revert to the former owner, 383 24. If the voyage be so defeated as not to be worth further pursuit, the assured may abandon, 382 25. But it is repugnant on a contract of indemnity to recover for a total loss, when the event has decided that an average loss only has been sustained, 383 2(5. If the .sliip be recovered after a long detention, it is not a total loss even on a wager policy, 384 27. The assured shall not be allowed to abandon, cither to avail himself of having overvalued, or of the market below the inv.)ice price, 386 28. The assured can recover only an in- demnity, according to the nature of his case, at the time of bringing the action, or at the time of his ofTcr to abandon, 387 29. The ellect of abandonment is, that if the offer turns out to have been properly made upon the supposed facts which turns out to be true, the assured has put himself in a con- dition to insist on his abandonment, 390 30. The abandonment must be viewed with regard to the ultimate state of facts ap- pearing before action brought, 393 31. In deciding the question whether a party not insured would prefer giving up the adventure and repairing a ship at an enormous price — it is proper that the jury should take into their consideration the national character of the ship which materially afliscts her value, 399 32. Where the defendant had paid 48/. into Court, and the jury found that there was only 48/. per cent, damage. It was held to be only an average loss; though, when she ar- rived at her port she was not worth repair- ing, 402 33. Where a ship is obliged, by sea-damage to put back into port, and cannot be repaired there, and no other vessel could be obtained, and the cargo is much damaged, this is a total loss, 406 34. A mere retardation of a voyage where the insurance was on the cargo not of a perishable nature, is not a ground for aban- donment, 408 35. If a ship be in such a situation that the master has the means within his reach to re- store it to the character of a ship, it is not a total loss. There is no principle of insurance law as loss by sale, 409 30. A ship being wrecked was sold by the owner, and soon after got off by the purchaser, though at a great expense. The owner can- not treat this as a total loss, if the .ship could have been repaired so as to have sailed home in ballast, or with some sort of a cargo, 409 37. In what cases abandonment must be given, 411 Vol. VIL— F2 38. Where the thing insured subsists in specie, and there is some chance of recovery, there must be an abandonment, 412 39. Where a ship is so much injured by the perils of the sea, that she ciiiinot be re- paired at all, except at an cxjiense exceeding her value when repaired, the assured may re- cover without an abandonment, 412 40. The assured cannot abandon on account of the port of destination being shut against the ships of the nation to which the ships be- long, 414 41. If a ship insured to a foreign port, learn- ing in the course of her voyage that an embargo is laid on the ships of her nation, wait at a place as near as she safely can till the embargo is removed, the goods on board insured, will in the meantime be protected by the policy, 417 42. But if instead of doing so, she sails back to her port of outfit, and is lost, she will be considered to have abandoned her voyage, and the underwriters are discharged, 417 43. Where a loss was attributable merely to the fear of a hostile embargo, at the port of destination, held not to be a loss by the deten- tion or arrest of kings, 417 44. The effect of abandonment of the ship to the underwriters, so as to pass to them the ship's future earnings or freight, 420, 427 45. And where there are separate insu- rances on the ship and freight, and the owner abandons to the underwriters both of ship and freight, the abandonee of the ship has a right of the after accruing freight, independently of the abandonee of freight, who may have his own remedy against the owners, where he had insured their freight, which being lost, was paid by the underwriters on freight, with an agreement that he was to have the benefit of the abandonment to him of the freight to be earned, 427, 428, 429 46. Freight follows as an incident to the property in the ship, 427 47. The abandonee of a ship has all the rights of the shipowner cast upon him, 428 48. Within what time abandonment ought to be made] In England the assured ought to abandon to the underwriters as soon as he hears of the loss and elects to do so, 430 49. In foreign maritime states, the time of abandonment in different voyages is fixed by positive regulations, 430 50. The assured by the law in England must make his election speedily. He cannot lie by and treat the loss as average, and after- wards abandon to the underwriters, 432 51. So an underwriter is bound to say, within a rea.sonable time after notice of aban- donment, whether he will accept it or not, 433 52. An abandonment may be by parol, but it should be certain ; the word 'abandon' ought to be used, 433 464 INDEX. II. Average Losses. 1. In an average loss the thing insured is supposed to exist in specie, but there is a pos- sibility, however remote, of its arriving at its destination, or at least of its value being in some way affected by the means which may be adopted for the recovery or preservation of it, 435 2. Whether a loss be total or average in its nature, must depend upon general principles, 436 3. If the goods be of an imperishable nature, if the assured become possessed of them, or can have the control of them, if they have an opportunity of sending them to their destina- tion, the mere retardation of their arrival may be no prejudice to them, except the expense of reshipment in another vessel, 436 4. And where the goods consisted of copper which was wholly uninjured, and of iron, which was partially damaged, and the assured had possession of them, and the ship was capa- ble of repair, and might have prosecuted the voyage — this was held to be an average loss, 437 5. And where some rice had arrived at its destination, and though damaged, was deliv- ered to the consignees in a saleable state, as rice — this is only an average loss, 437 6. And where some tobacco and sugar, though damaged by the perils of the sea, were in the hands of the owner, and might, for any reason that appeared, have been forwarded to its port of destination — held to be an average loss, 437 7. And where some wheat was partly saved, and was in the hands of the shipper: was kilndried, and might have been forwarded, as the rest of the cargo was, to its port of desti- nation; but the shipper, after dealing with it as his own, abandoned too late. Held to be only an average loss, 438 8. So in the case of a ship, if she be not bodily and specifically lost, and there be no circumstances attending, which would render the loss total by the law of marine insurances: this is only an average loss, 439 9. The loss of the original voyage will not make a constructive total loss of the ship; if she can be repaired so as for her to sail to her destination, in ballast, or with any kind of a cargo so as, on her arrival, to be worth the money expended on her, she ought to be re- paired for the purpose, where it is possible to do it, 440 10. The rule for calculating the average losses on goods, is laid down by Lord Mans- field in Lewis v. Rucker, and his Lordship said afterwards in another case, that the rule laid down in Lewis v. Rucker, should always be followed where there was a description of casks or goods, 440 IL But where the property consisted of a variety of goods, and part of them were lost by the perils of the sea, the only rule was to go into an account of the whole valued in the policy and take a proportion of the whole value as the amount of the goods lost, 441 13. Upon a policy on goods to recover an average loss, it is immaterial whether the goods arrive at a good or a bad market, for the true rule to estimate the loss, is to take them at the fair invoice price, 441 13. And the underwriter is not liable to any loss that may arise from the difference of the exchange, 441 14. The underwriter is not restricted to the amount of his subscription, but he may be subject to several average losses, or to an aver- age and total loss, or to money expended "in and about the safeguard and recovery of the ship," to a much greater amount than his sub- scription, 442 15. But the assured cannot recover for more than he has been damnified, and cannot re- cover for an average loss, which has not been paid by the underwriters, when it is afterwards followed by other circumstances which render the previous deterioration a matter of perfect indifference to the assured's interest, 443, 449 16. The assured cannot recover for an ex- pense which might have been incurred, but never was incurred, 450 17. Where repairs are actually done, and prudently done, they are a fit measure of the assured's loss: he is so much the worse for a peril within the policy, 450 18. Expenses of this kind come under the clause of the policy, which enables the assured to lay out money for the benefit of all con- cerned, 451 19. The proportion of the damage which the assured has sustained, is to be calculated from the gross and not the net prices of the sound and damaged goods at the port of deliv- ery. 45^ 20. In an open policy the invoice price, together with the premium of insurance and commission, form the basis of the value of the goods, 454 21. In policies on freight, the loss is calcu- lated on the gross and not on the net amount, 456 22. Of the common memorandum in the policy, 457 23. It has been uniformly held upon this clause, that the underwriters can in no case be answerable for an average loss to such goods mentioned in the memorandum, unless the ship bo stranded, 464 See "Stranding" in the article "Ship." 24. On a policy on wheat, with the com- mon memorandum, and the wheat sustained an average damage, 56/. 19a-. 8d. per cent. The underwriters held not liable, 465 INDEX. 465 25. A ship with a cargo of fruit, is forced by stress of weather to put into a port out of her regular course. The fruit is so spoiled by the seavvater, and stinks so, that the govern- ment prohibited the landing: the ship also is so much damaged as not to be able to proceed : held to be a total loss, 469 2G. Where a cargo of fruit was captured and recaptured, and brought to its port of des- tination, but dauKiged eighty per cent., held to be only an average loss, 471 27. In an action on a policy on peas, the peas arrived at the port of destination, but so much damaged, as to be sold for three-fourths less than the freight; held that as the goods mentioned in the memorandum, arrived at the market, the underwriters were not liable, 472 28. Where the policy was declared to be on hogsheads of sugar, and every hogshead was saved with some sugar in it, this was held an average loss, 473 29. The memorandum is likewise usually modified by an express stipulation to pay aver- age on each species of produce and on sepa- rate packages, 474 30. But this stipulation does not prevent the average being calculated on the whole cargo, if it amount to three or five per cent, on the whole, 474 3 1 . On the words " free from average under three per cent." the underwriter is liable for the amount of the aggregate of several average losses, each less than three per cent., but amounting in the whole together to more, 475 The Adjustment. 32. If an agent had subscribed the policy, and had authority to do so, he has also authority to sign the adjustment, 481 33. The adjustment is /jri;?i«/ac('e evidence against the underwriter without any further proof of the loss: except in cases of fraud, 481 34. Where evidence was given that after an adjustment doubts had arisen in the minds of the underwriters, and that they refused to pay. Held that the plaintiff must give further proof, 483 35. The effect of the adjustment is to throw the "onus probandi" upon the underwriter, 484 36. An underwriter who, upon a full dis- closure of facts, has signed his initials to an adjustment without paying the loss, is not precluded in an action against him, from avail- ing himself of the circumstances which he was acquainted with, before signing the adjust- ment, 485 37. An adjustment is not binding upon an underwriter, if his attention be not drawn at the time to circumstances, by which 'he un- derwriters would have been discharged, though he then had the means of acquainting himself with them, 48C 38. But where there is a full knowledge of the facts and a settlement made, the assured cannot resort again to the underwriter in any contingency of the event, 487 39. The production of a policy with an ad- justment indorsed on it, and the underwriter's name run through, is not of itself proof of payment, 487 40. If at the time of the adjustment the underwriter pays as for a total loss, and it turn out afterwards only an average one, he shall not recover the money back, but he stands in the [)Iace of the assured by having the benefit of salvage, 488 41. But where a compromise has been en- tered into by the underwriters, they can make no claim to a restitution at a future period, 490 MASTER OF THE SHIP. 1. Every ship must have a master of com- petent skill, 110 2. And where any loss occurs from the ignorance of the master, the underwriters arc discharged, 110, 113 3. The master is frequently called upon to exercise his judgment, and to act to the best of his understanding for the benefit of both parties ; and if he were proved to be a person of competent skill when he sailed on the voy- age, the underwriter is liable for the conse- quence of his acts, 113 4. If a master do what is usual in the course of a particular voyage, and a loss accidently happen at the time, the underwriters continue liable, for when they underwrote the ship they knew what was to be done on such voyages, 87 5. If the risk be altered by the fault of the master or owner, the underwriters are not lia- ble. But if the master vary the risk, "ex justa causa," the liability of the underwriters continue, 87 6. The master is agent for the freighter as well as the owner, 1 14 7. The master has an implied authority both from the underwriter and the assured, to do the best he can for all concerned, 114 8. The master must by law take on board a pilot at different parts of the voyage when re- quired of him, 115 9. The underwriters are not discharged by the default of the pilot in charge of the ship, and who is master for the time he continues on board, 117 10. By the provisions of the Pilot Act, no underwriter shall be discharged for reason of no pilot being on board, unless it be proved that the want of a pilot shall have arisen from any refusal to take a pilot, or from the wilful neglect of the master in not heaving to, or 466 INDEX. using all practical means to procure one con- sistently with the safety of the ship, 118 11. If a ship sail from a port where there is an establishment of pilots, and the nature of the navigation requires one, the master must take one, 119 12. So if in the course of her voyage the master arrives at a port or place where a pilot is necessary, he ought not to dismiss him till the necessity has ceased, 119 13. But if a vessel sail to a port, where the establishment is such that it is not always pos- sible to procure the assistance of a pilot before the ship enters into the difficult part of the navigation, then as the law compels no one to perform impossibilities, all it can require in such case is, that the master use all reasona- ble efforts to obtain one, 119, 120 14. In a general average it is the duty of the master, if the ship ride out the storm and arrive at its own port, or port of safety, to make regular protests, and swear, with which part of the crew must join, that the goods were thrown overboard for no other cause, but for the safety of the ship, 500 MORTGAGOR. A mortgagor of a ship who is also master, is considered still owner, in order to disable him to commit an act of barratry, 342 NON-COMPLIANCE WITH WARRAN- TIES. 1 . It is a clear and first principle of the law of insurance, that where a thing is warranted to be of a particular nature, or description, it must be such as it was stated to be. It is no matter whether it be material or not ; the only question is, "is this the thing de facto,^^ that I have signed 1 663 2. Ship " warranted well on a particular day," insured, "lost or not lost," the policy was underwrote at between one and three o'clock in the afternoon, the ship was lost at eight in the morning of the same day, the war- ranty is complied with if the ship is safe at any part of that day, 663 3. Distinction between a warranty or con- dition which makes part of a written policy, and a representation of the case, 664 4. In Older to make written instructions binding as a warranty, they must appear on the face of the policy, 664 5. Warranty as to the time of sailing, 670 6. Where a ship warranted to sail on or before the 26th .Tuly, free from capture, and restraint and detainments of kings, &c. The ship was ready to sail before the 26lh July, if she had not been detained by order of the governor. Held that the warranty was posi- tive and express that the ship should depart on or before that day, 671 7. If a ship be warranted to sail after a par- ticular day, and she sail before that day, the policy is void, 671 8. If a ship is warranted to sail on before a particular day, if she sails from her port of loading with all her cargo and clearances on board before the day, to the usual place of rendezvous at another part of the island, for the sake of joining convoy, it is a compliance with the warranty, though she be afterwards de- tained by an embargo beyond the day, 672 9. It does not signify what was the cause which prevented the ship from sailing; but if she did not sail on or before the day required, the policy is void, 675 10. But if the ship breaks ground, and is fairly under sail on the day required, and after- wards puts back from stress of weather, or ap- prehension from an enemy, or is put under an embargo, though she has gone ever so little way, it is still a beginning to sail, 675 1 1. But where the warranty is to depart on or before a given day, the ship must be actu- ally out of port, and it is not sufficient that she has broke ground to satisfy a "warranty to sail," 683 12. At the time of a ship's sailing, she must have every thing ready for the perform- ance of the voyage, and nothing remaining to be done afterwards, 684 13. Secondly, — Warranty to sail with con- voy, 693 14. This means sailing under the protec- tion of ships of force appointed by govern- ment, in time of war, to sail with merchant- men from their port of discharge to the place of their destination, 693 15. If a ship do not sail with a convoy appointed by the government of the country this is not a sailing within the terms of the policy, 694 16. Sailing instructions from the comman- der of the convoy are necessary, 696 17. To "depart with convoy," means to sail with convoy throughout the whole of the voyage, 698 18. A ship joins convoy, but by stress of weather is unable to get sailing instructions; this was held to be nevertheless a departing with convoy, 700 19. Where, by the neglect of the ship in- sured, she failed to sail with convoy, the un- derwriters were discharged, 702 20. The warranty is to be construed with reference to the usage of trade and the orders of government, 702 21. Thirdly, — Warranty that the ship or goods are neutral property, 704 22. Policy on goods "warranted neutral ship and property." The ship and goods were lost by bad weather, but the ship at the time she was lost, was not neutral property. Held that the contract was void, 704 23. If the ship or property are warranted INDEX. 467 neutral, it is suflicient if they are so when the risk commences. 'J'he assured does not war- rant they shall continue so during the voy- age, 705 24. The question how far the Courts of Law in this country, consider the sentence of foreign Courts conclusive evidence that the property was not neutral, 707 2.5. It has been the constant usage that the tribunals of the law of nations should exercise their functions within the belligerent country, 709 26. The principles laid down in the Court of Admiralty in this countr}' are agreeable to the decisions of the Courts of Law upon the subject, 710 27. Where a sentence was pronounced by a belligerent, on neutral territory, it was held void, 711 28. But if it appears beyond doubt that the sentence proceeded on the ground of the property not being neutral, it is conclusive evidence against the assured, that he has not complied with the warranty, 713 29. Where a ship was condemned gene- rally as " good and lawful prize," it was held conclusive to falsify the warranty, that the goods were neutral, 715 30. The sentence is conclusive only as to the points it professes to decide, 717 31. If no leave is given to a ship to carry simulated papers, and the ship is condemned for carrying them, the underwriters are dis- charged. Otherwise if leave be given, 718 32. Where a sentence went upon a French ordinance, and condemned a Dutch ship be- cause she had an English supercargo on board, (being an enerny,) this sentence was held to be illegal and not conclusive against the warranty, 718 33. So, where a ship was condemned be- cause the captain was " an enemy" and no- thing else, the sentence was held not to be conclusive to falsify the warranty, 719 34. Courts of Admiralty proceed on the "law of nations," and such treaties as par- ticular states have agreed shall be engrafted on that law. But no one state can add to the "law of nations," an arbitrary ordinance of its own without the concurrence of other states, 72 1 35. A ship belonging to a state in amity with a belligerent, should be furnished with such documents as have, by treaty, being agreed on, to shew her character. But no ship is required to be furnished with every document required by the ordinances only of a belligerent power, 723 36. Where a ship warranted Swedish is captured by the French, and condemned. The Court of Prize, after stating the princi- pal question to be, whether the ship and cargo were enemy's property, condemns both as good prize, without any express adjudication as to the property. Held, that this sentence must be taken to have proceeded on the ground of enemy's properly, and to be con- clusive to falsify the warranty, 729 37. A sentence of a Court of Admiralty proceeding "mrem," is conclusive and bind- ing upon all the world, 733 38. The party who sets up the sentence is not obliged to shew that it proceeded on the ground of enemy's property, but it lies on the other party who objects to it, to shew that it proceeded on some other ground, 733 39. A sentence of a Court of Admiralty is conclusive as to all it professes to decide, 736 40. Finally settled by the House of Lords, that "the sentences of foreign Courts of com- petent jurisdiction to decide questions of prize, are of conclusive evidence in actions on poli- cies of insurance, on every subject within the jurisdiction of the Court, and in which tliey profess to decide judicially," 738 41. But the Court must distinctly decide the point, in order to affect a warranty or representation in a policy, and it is not to be i collected by inference, 739 42. Where a foreign Court of Admiralty alleges reasons for the sentence, from which it appears that it proceeded on other grounds than being enemy's property, the sentence is not conclusive against the warranty of neu- trality, 741 43. Where in a case of insurance on "goods" on board the ship George, it be- came the principal question in the case, whether a sentence of condemnation in the Prize Court of Monte Video, was to be re- ceived as conclusive evidence of the fact, that the ship was captured in attempting to break a blockade; held, that as it was not possible safely to infer from the terms of the sentence, that the precise ground of the sentence was the attempt to break the blockade, that the sentence was expressed with so much doubt and ambiguity as to the real ground on which it proceeded, that it was not conclusive evi- dence of the captain's having attempted to break the blockade ; and the assured recovered, 741 44. The right of visiting and searching merchant ships upon the high seas, is an in- contestible right of the lawfully commissioned cruisers of a belligerent nation, 747 PERILS OF THE SEA. 1. Every loss which happens to a ship by the immediate act of God is a loss by a "peril of the sea," 270 2. Where a ship was driven on an ene- my's coast by a gale of wind, and is captured, and not damaged by the wind, this is a loss by "capture," and not a loss by the "perils of the sea, 270 468 INDEX. 3. Where a ship went on shore, in conse- quence of two sailors being prevented liy a pressgang from casting off a rope, as they had been ordered, held to be a loss by "peril of the sea," 270 4. Where a ship warranted free of Ameri- can condemnation, slipped away in the night, and was afterwards, by the ice, tide, and wind, driven on shore, and ultimately con- demned for breach of the embargo, the under- writers were discharged, 271 5. Where an insurance was made on goods on board a ship "warranted free from cap- ture and seizure," and the ship was stranded on a shoal, and was lost ; but, whilst she lay on the sand, she was seized by the commander of the place, and her goods were confiscated by him, this was held to be a loss by "the perils of the sea," 271 6. And where there was an insurance on goods, and where the ship was actually wrecked, part of the goods lost and part got on shore, where they were plundered and de- stroyed by the inhabitants, this was held to be a loss by " perils of the sea," 271 7. And where a ship had sprung a leak, and the captain, with the hope of saving part of the cargo, had run her ashore, where ulti- mately she had gone to pieces, it was held to be a "peril of the sea," 272 8. But the loss must have been proved to have been occasioned immediately by one of the perils insured against, and where a decla- ration in an insurance on slaves stated, that "by perils of the sea, contrary winds, cur- rents," &c., the voyage was retarded so much that there was no water remaining for the slaves, some of whom perished in conse- quence, and it was proved at the trial that the voyage was delayed by the fact of the master missing his port, this was held not to support the allegation in the declaration, "that the loss happened by perils of the sea," 272, 273 9. A loss by collision is a loss by "peril of the sea," 273 10. Ship sunk at sea, by being fired at, by mistaking her for an enemy, is a loss by "peril of the sea," or, if not, at least comes under the general words "all other perils," «Scc., in the policy, 275 11. Where a vessel was ordered into a dry harbour, the bed of which was hard and un- even, and, on tide having left her, she re- ceived damage by taking the ground, held to be a loss by " peril of the sea," 277 All oTHF.n Perils, &c. Set Jettison. 12. The effect of these general words in the policy, 248 13. They are to be restrained in construc- tion to perils of the same kind to those in- serted in the policy, 349 PILOT. See Ship, and Master of Ship. PIRATES, ROVERS, THIEVES. I. Pirates. Captures by pirates as between the assured and assurer, are upon the same footing as captures by an enemy, 303 II. Rovers and Tuietes. 1. If the thieves be on board, the master of the ship is to answer for the loss, and to make it good, according to Malyne; and the as- surers arc not to be charged with such loss ; for he supposes that the word "thieves," mean "assailing thieves," in the policy, and their being coupled with the term " rovers," by the maxim of " nuscUur a sociis" he seems to be right, 303 2. Roccus is of the same opinion, 304 3. The underwriters are liable for a robbery of goods from without, for thieves are a "peril" expressly insured against by them, 304 POLICY, CONSTRUCTION OF. 1. The immediate and not a remote cause of the loss is looked to by the Court in con- struing a policy : and if this be covered by the terms expressed in the policy, they will hold the underwriters liable, although the loss may be attributable, in the first instance, to a re- mote cause not covered by the policy, 268 2. It is a maxim of the law of marine in- surance, that the assured, having provided a complete crew and master of competent know- ledge at the commencement of the voyage, makes no warranty that they shall do their duty during the continuance of it; nor are the underwriters exempted from their liability in case of a loss arising immediately from one of the perils insured against, although remotely owing to the neghgence of the master and crew, 269 3. The Courts, in putting a construction upon policies will always be guided by the custom and usage of trade, 197 4. In all mercantile transactions the great object should be certainty, and therefore it is of more consequence that a rule should be cer- tain, than whether the rule is established the one way or the other, because speculators in trade then know what ground to go upon, per Lord Mansfield, in Vallejo v. Wheeler, Cowp. 153, 323 5. And by Mr. Justice Willes, in Lockyer V. Offley, 1 T. R., 252, 329 OF THE PROCEEDINGS IN THE ACTION. 1. The relief, which by the law of this country is given to either party to the contract of assurance, is generally by an action at law, 783 INDEX. 469 2. There are some cases where the parties may get relief in equity, as for an injunction to stop an action at law, 784 3. A court of equity will not altera policy in the absence of strong proof of its being con- trary to the intent of the parties, 784 4. But where a policy has been drawn up, by 7Distake, in terms which are not conforma- ble to the real intentions of the parties, the in- strument may he rectified in a court of equity by the slip or label, 78 5. At common law a policy cannot be al- tered after it had been signed, without the consent of the parties, 784 6. A court of equity will give relief in a case where there is a suspicion of fraud in the assured, and in such cases will compel him, on oath, to make a full disclosure of all the circumstances within his knowledge, 784 7. All issues on policies of assurances are tried in the courts of common law, 784 8. And a clause in a policy that in case of a dispute it should be referred, is no bar to an action at law where there has been no refer- ence in fact, nor is depending, 784 9. The remedy against the two old incorpo- rated companies is by debt or covenant, and so in the case of other incorporated compa- nies, 785 10. The remedy against a private under- writer is by action of assumpsit, 786 11. Consolidation of actions. The rule: its nature, and the terms on which it is usu- ally made, 786, 787 12. The venue may be changed, unless the policy be under seal, or the cause of action arise out of the realm, 789 13. The declaration. The date of the ex- ecution of the policy, a copy of which is in- serted therein, 789 14. The stamp required by law on the policy, 789 15. The plea, 796 16. Payment of money into Court, and the proceedings of the plaintilf after, 796 17. What the plea of payment into Court admits 1 ' 796 18. The issue, 803 19. Proof of the defendants subscription of the policy, or of some person subscribing for him by his authority, 803 20. The plaintiff must prove his interest in the subject-matter, by production of bill of lading, &c., 804 21. Proof of the ownership of the ship, «&c , 805 22. The plaintiff must prove that the loss happened as is averred in the declaration, 809, 811 ' OF RE-ASSURANCE AND DOUBLE ASSURANCE. I. Re-Assuraxce, 773 1. Re-assurance, as understood by the law of England, may be said to be a contract which the first assurer enters into, in order to relieve himself from those risks which he has incautiously taken by throwing them upon other assurers, who are called re-assurers, 773 2. By sect. 4 of 19 Geo. 2, c. 37, it is unlawful to make re-assurance, unless the assurer be insolvent, become bankrupt, or die, 773 II. Double AssunA:scF,, 775 1 . Where a person has made a double as- surance, he may recover the whole sum upon the first action, and leave the defendant to recover a rateable satisfaction from the others, 775 2. Where an assured had recovered against the underwriters of the second insurance, the latter were held entitled to recover against the underwriters on the first policy for their contribution, 776 3. Where there are several insurers they shall all contribute pro rata, 779 RETURN OF PREMIUM. 1 . Whether there is to be a return of pre- mium in case of fraud ; see ante, in article "Fraud in I'olicies," 625 2. Where the interest turns out to be less than the amount insured, there shall be a re- turn of the overplus premium, 751 3. Where a policy was made on goods on behalf of the plaintifi' by an agent, and a pre- mium paid, and the policy was void, as no goods were ever on board, it was held that the plaintiff might recover the premium from the underwriter, in an action of money had and received to his use, 752 4. The parties often agree that there shall be a return of part of the premium upon the happening of a certain event: for instance, if the ship sail with convoy for the voyage, and arrive safe, 752 5. Goods are insured from Grenada to Lon- don at eighteen guineas per cent., "to return eight per cent, if the ship sails with convoy, and arrives." The ship sailed with the con- voy, which left her, as usual, at the Downs ; after which an average loss happened, but the ship arrived safe at London. Held that the underwriters were liable to return eight per cent, on the value qf the goods in the policy, notwithstanding the average loss, 753 6. On a policy on freight, " to return ten per cent, if the ship sail with convoy and arrive." The ship sailed with convoy, was captured and recaptured. The assured are entitled to a return of premium, although the underwriters were obliged to pay salvage, 755 7. Where several policies are made, and the interest turns out less than the amount insured in the whole, there must be a rate- 470 INDEX. able return of premium upon all the policies, 756 8. But where there were five policies made on a cargo of cotton, then at sea, on the 12th April, which did not amount together to the value of the subject-matter insured ; and on the 13th of April, news having arrived of the vessel's safety on that day, six other policies were bond fide made, the amount of which, together with the former, exceeded the value of the subject-matter insured ; it was held that the assured were entitled to a return of pre- mium on the amount of the over-insurance, taking the account from the whole oi the po- licies which had been made, and this was to be paid rateably by the underwriters on the policies of the 13th, but that the underwriters on those of the 12th were to be exempted, 757 9. Where the risk has not been run, either owing to the fault, or the pleasure or will of the assured, or to any other cause, the pre- mium shall be returned, 757 10. Where the risk has once commenced, there shall be no apportionment or return of premium, 758 11. But where a voyage from London to Halifax was insured on the contingency of sailing from Portsmouth with a convoy, (par- ticularly named) which contingency did not happen, it was held that the assurer was en- titled to retain only a proportional part of the premium, 759 12. Where an insurance was made by an agent here on goods, " at and from a port in Russia to London," on behalf of a Russian subject abroad, which, in fact, was made after the commencement of hostilities by Rus- sia against this country, but before the know- ledge of it here, and after the ship had sailed and been captured, it was held, that the voy- age being void in the commencement, that the plaintiffs were to recover back the pre- mium, inasmuch as the insurance was made without any consciousness of its illegality at the time, 759 13. But where an insurance was made previous to the commencement of hostilities, and was held to be void on account of the capture being made by tlie King's forces, the underwriter being a resident subject of his Majesty in this country, it was held that the plaintiff could not recover the premium back, as the contract was at the time it was made legal for all losses, except loss by British cap- ture, 760 14. Where the plaintiff had made an insu- rance on behalf of captors, which was void for want of interest in the captors, as there was no illegality in the voyage or insurance, and as the resistance of the underwriters to the claim under the policy proceeded on the ground that there was no risk, held that the plaintiff was entitled to a return of the pre- mium, 761 15. Where a premium had been paid to cover a trading with the enemy, though the insurance was void, the premium could not be recovered back, 763 16. Where an insurance was made in vio- lation of the Naviijation Acts, it was held that the premium could not be recovered back, 764 17. But where the policy is void, on ac- count of the subject-matter not being insur- able, the assured may recover the premium, 764 18. Where a policy was vacated by a de- viation in the voyage, as the insurance was " at and from" the port of departure, the risk had commenced, and there could be no return of premium, 764 19. Where the policy was "at and from Jamaica to London, warranted to depart with convoy for the voyage, and to sail on or be- fore the 1st August," the ship sailed on the 31st, without convoy, and the jury found that in such cases there was a usage to return the premium, deducting one-half per cent. Held that the express usage took the case out of the general rule, 771 SHIP. See Master. 1. The husband of a ship has no right to insure for any part-owner, without his parti- cular direction ; nor for all the owners without their general direction, 9 2. The name of the ship should be inserted in the policy, 80 3. Sometimes there are insurances upon "ship or .ships," expected from a particular place, 82 4. A mistake in the name of the ship will not vitiate the policy if the identity be proved, 81 5. The "boat" of the ship in some voy- ages is usually carried on the outside, slung on the quarters, 83 6. The rigging and tackle of a ship are put on shore during a repair, by the usual course of the voyage, and burnt l)y accident, the underwriters are liable, 85 7. If the risk be varied by the fault of the owner or master of the "ship," the under- writers are discharged, 86 8. Whatever is usually done by every ship, in a particular voyage, is understood to be referred to by every policy, and to make a part of it as if it had been expressed, 87 9. Extraordinary wages paid to the sea- men, and provisions expended during the de- tention of a ship, are not protected by a po- licy on "ship," 89 10. Neither can the assured recover for wages, provisions, or demurrage, during the ship's stay for repair, or detention of a for- INDEX. 471 eign power, on a policy on «*ship and goods," 89 11. But where provisions were sent out in a China and East Indian ship for the crew, and while the ship was lying off Bank-saul Island to he refitted, and the stores and pro- visions were taken, as usual in that voyage, and put into a warehouse where they were ac- cidentally consumed by fire, it was iield, that the assured could recover the loss of the pro- visions destroyed by a peril insured against, and not consumed by the crew, under the terms "ship and furniture," 91 12. The term "good" applied to the ship, means in the legal sense of the term, the seaworthiness, of the vessel. And it is of the first importance and of the essence of this contract, 91 13. There is an implied warranty on the part of the assured, that the ship when she «ails, shall be "good," that is "seaworthy" for the voyage, 96 14. Where a ship was made seaworthy as the assured and shipbuilder thought, but hav- ing sailed in bad weather to Portsmouth from the Thames, and being very leaky, she was condemned as not fit to proceed. Held, how- ever innocent the assured might be, the un- dervs'riters were discharged, 105 15. If a ship become leaky and unable to proceed soon after the commencement of the risk, without any visible cause, the presump- tion is that she was not seaworthy when she sailed, 106 16. A ship to be seaworthy, must be fur- nished with ground tackling sufficient to en- counter the ordinary perils of the sea, 107 17. The seaworthiness of a ship is to be taken with a reference to her situation in dif- ferent periods of the voyage, 108 18. There is a seaworthiness for port, and there is a seaworthiness for the voyage, 1 10 19. The vessel must also have a sufficient crew and captain of competent skill, 1 10 20. If an insured ship is to be navigated in a particular manner described by statute, if the requisitions of the statute are not strictly complied with, the insurance is void, 120 21. The implied warrantry of a ship being seaworthy for the voyage insured, is not con- fined to the sufficiency of the hull, but it ex- tends to the soundness of the sails and rigging ; and a ship if "warranted to sail with convoy," should be supplied with such sails as will en- able her to keep up with the convoy : because a "warranty to sail with convoy," implies the necessity not only of setting sail together, but keeping up with it, in order to give the under- writers the protection to the end of the con- voy's usual attendance, 122 22. By an implied warranty every ship in- sured must be seaworthy at the commence- ment of the risk, but the assured makes no warranty that she shall continue so, 123 Vol. VII.— G 2 23. Neither does the assured, after having provided a competent master, and sufficient crew for the voyage, warrant that they shall do their duty during the continuation of it, 123 24. Neither are the underwriters discharg- ed from their liability, in the case of a loss immediately arising from one of the perils in- sured against, though remotely owing to the neglect and fault of the master or crew, 1 23, 124, 125, 126, 25. If a ship sets sail on her voyage in an apparent seaworthy condition, and afterwards, before any loss happens, she is found to be too heavily laden so as to render her unseaworthy, and the fault is remedied and she proceed on her voyage in a seaworthy condition, the un- derwriters are liable to a subsequent loss, 127 26. The assured cannot change the ship previous to the voyage for another, without mentioning it to the underwriters, 139 27. Whether the assured may in the course of the voyage if the original vessel is lost, tranship the goods in another vessel, 143 28. In foreign countries it is expressed either in the policies or ordinances, that " the risk of the underwriters begin the moment the goods quit the shore." But in this country the common form of the policy used is differ- ent, viz: "from the loading on board the ship," but there are exceptions to this rule, particularly with Companies of Assurance, 149 29. The risk on the body of the ship con- tinues till the ship be moored twenty-four hours at anchor in good safety, 150 30. Where the policy is "till the ship be moored at anchor twenty-four hours in good safet)',"the underwriters are not liable for any loss that takes place after that time, 153 31. Where a ship arrived in port a mere wreck, and was obliged to be lashed to a hulk to prevent her sinking, held it was a total loss, 156 32. A ship being moored twenty-four hours in safety, implies the opportunity of unloading and discharging, 157 33. If an embargo is put on previous to a ship's arrival at a port, she cannot be said to be moored in safety, 157 34. Where the words "at and from" are used in the policy, the risk commences at the ship's first arrival at the port. But if there be an unreasonable delay at the port, the un- derwriters are discharged, 176 35. Though it be not necessary that the ship should be at the port in question at the time of making the insurance, yet there must not be an unreasonable delay in her arriving there, 177 36. When a policy is on a voyage to an island having several ports, the risk on the outward voyage ceases after the ship has been moored at the first port, 178 472 INDEX. 37. In a policy "at and from an island," the ship is protected in going from port to port, 1 79 38. If the policy be on '« goo''s," and on the ship at and from a given jilace, bcgirming the adventure upon the loading thereof on board of the ship, (without saying where) it will not cover goods shipped elsewhere than the place where the risk commences, or " the ship," though they be the goods mentioned in the policy, 193 39. But if part of the cargo be landed and relandcd, so as to enable the whole to be in- spected : held to be a virtual reloading within the terms of the policy, 193 40. So, if a policy be declared to be in con- tinuation of former policies, goods previously loaded will be covered by it, 194 41. Where a policy was beginning tlie ad- venture upon the goods from the loading there- of on board wheresoever, it was held to cover the loading wheresoever it took place, 194 42. But where the a.ssurcd have, by the ex- pressed terms which they have used in the policy, confined the risk to the goods "from the loading thereof" at a particular ])lace, the Court, in construing the policy, will be guided by the express terms they have used, 19.) 43. Liberty for the ship to touih and stay at any ports and places whatsoever without prejudice to the insurance, is inserted in most of the policies of insurance particularly in those on voyages to distant places, such as the East and West Indies, the continents of Ame- rica and Africa, and round the Capes, and to China, 208 44. An insurance upon an Indian voyage includes the "country voyage" by the usaue of the trade, 214 45. If in a policy on an Indian voyage there be liberty "to touch, stay, and trade, at any ports or places whatsoever," this covers the risk of even a second country voyage, 216 46. Also where the Hberty was only "to touch, and stay, at any poitor place :" by the usasf of the trade this covers the intermediate voyages, 217 47. But the clause giving liberty "to touch, stay, trade," &c. is to be understood with such restrictions as the Courts have thought neces- sary to prevent any unfair advantage of the general terms in which it is expressed. It is, therefore, always interpreted as subordinate to the voyage insured, which is the principal ob- ject of the contract; and in cases of doubt it must be understood with reference to the laws of commerce, and the usage of the particular trade, 217—226, 230 Deviatioit fkom the Voyage. 48. It is expected that a ship insured for any particular voyage does at once proceed to take and keep (if po.Sijible) the proper route and course which, according to seafaring per- sons, is acknowledged to be the best and the proper one to perform the voyage insured, 230 49. But if, instead of keeping the proper course, the ship, either by the direction of the assured, or his agent, or by the wilful act of the master, without necessity or any reasona- ble cause alter her course in a difiercnt direc- tion, this is a "deviation" from the voyage, which voids the insurance, 230 50. So, also, if a ship is at aparticulai port, and is represented by the assured to the under- writers as being bound at such a time on such a voyage, upon which an insurance is made "at and from" the given port, if by sufficient proof it can be made apparent that the master by the directions of hi.s owners, or by his own wilful act, has prepared himself to sail on a voyage diU'ereiit from the one proposed to the underwriters, and insured by them, and she be lost in port before she even sets sail, the insu- rance is vacated, from the fact of the prepara- tions of the tiiaster tosailon a dilVerent voyage tha)i the one insured, 231, 232, &c. 51. Where the master of a ship took her out of her course on a smuggling speculation of his own, this was held to be cleailv a devia- tion, 231, 232 52. Where a ship puts into a port which she had no liberty by tiie policy to enter, held to be a deviation from the voyage, 235 53. If the master put into a port which is not usual, or stay an unusual time, it is a deviation, 235 54. Where a vessel was obliged to stay to pay sound dues, it was held that taking in provender there was not a deviation, as there was no delay of the voyage, 237 55. Taking in goods whilst lying for con- voy, no deviation, no delay of the voyage be- ing occasioned thereby, 237 56. A ship having liberty to put into one port puts into another equally in her way : this voids the policy, though neither the risk or premium would have been greater, 237, 238, &c. 57. Where several places are mentioned in a policy, the ship must go to them in the order in which they are named, 240 58. Where a deviation has once taken place, it is immaterial for how long it may continue, for the underwriter is discharged the moment it takes place, 243 59. Where a ship in the night time cruised and deviated in hopes of getting a prize : held, from that moment, the policy was discharged, 244 60. But, if a merchant ship carry letters of marque, she may chase an enemy, though she may not cruise, 244 61. Where a license is given to deviate, the Court wdl not extend the meaning beyond what is expressed by the parties, 247 INDEX. 473 62. The doctrine of deviation extends to policies on freight, 248 63. Where the deviation arises from neces- sity, the underwriter is not discharged, 248 64. Going into a port to refit is not a devia- tion, 250 65. Going out of the direct course to avoid a storm, or being driven out of the direct course by stress of weather, is not a deviation, 252 66. Where a plea of necessity, by the act of God, is set up, it must be made apparent that there was no default of the assured or master, 255 67. A deviation is allowable, if done to avoid an enemy, or to seek for convoy, 256 68. If a ship go to the usual place of ren- dezvous to join convo}', though out of the direct course, it is no deviation, 258 69. A ship may afford assistance to a ship in distress, without being guilty of a devia- tion, 258 70. If a ship be insured on a trading voy- age, the assured must carry on that trade with usual and reasonable expedition, 259, 260 I 71. A deviation merely contemplated, but i not carried into effect, is no deviation, 261 , 72. Where a ship is missing and not heard of in a reasonable time, it is by law presumed that she has foundered at sea, 351 73. In England, there is no regulation or usage of merchants fixing a time within which the assured may demand payment for a loss of a ship, in case of no account being heard of her, 353 74. See Ordinances of Spain and France on this Subject, 353 75. See also "The Rota of Genoa" upon this point, 362 STRANDING OF THE SHIP. 1. What shall amount to the stranding of the ship within the meaning of the memoran- dum, 458. 2. It is not every touching or striking on a fixed body in the sea or river, that will con- stitute a stranding. The ship must be sta- tionary, 458 3. Where a ship is driven on shore and remains for any time on the ground, this is a stranding, 459 4. Where a ship under the conduct of a pilot was fastened at the pier of a dock and left and took the ground, this was held to be a stranding, 459 5. But where by the natural course of the navigation the vessel, by the flux and reflux of the tide, would be left on the ground, this is not a stranding, 460 6. Where a ship in the course of her voy- age was compelled to put into a tide harbour, and was there moored, at a place usual for ships of her burthen, and it became necessary to fasten her by tackle to posts on the shore ; the rope which fastened her not being of sufficient strength she fell over on her side, was stove in, and greatly injured. It was held that this was a "stranding" within the meaning of the policy, 46 1 7. And where a ship was in tide harbour and proceeded to discharge her cargo at a quay on the side of it, which could be done at high-water only, and not at one tide ; at the first low tide the vessel grounded on the mud ; but on a subsequent ebb, the rope which fastened her head stretched, and the wind blowing, she did not ground entirely on the mud, but her fore part got on a bank of stones, and the vessel having strained, some damage was sustained by the cargo, but no lasting injury was done to the ship. This was held to amount to a "stranding,'' 462 8. Where on a policy on "corn," the memo- randum stated that the underwriter would not be liable for any average, unless general, or the ship be stranded, but their being no averment in the declaration that the ship was stranded, the assured could not recover, 475, 476 9. If the ship be stranded, that destroys the exception, and lets in the general words of the policy, 478 10. The stranding of a lighter, by which goods from the ship are carried to the shore, is not such a stranding of the ship v\'ithin the terms of the exception, 480 11. The stranding must take place during the continuance of the risk, and where the goods which had, by the occurrence of cer- tain circumstances been landed and sold, and the stranding took place afterwards, though, during the original voyage, held that this was not such a stranding as would let in the gene- ral words of the policy as to those goods, 480 USAGE. 1. An interest in expenses incurred by the captain for the use of a ship, for which he charged respondentia interest, was held to be protected by a policy on "goods, specie and effects," on the ground solely of the usage of the Indian trade, 18 2. The master's clothes or the ship's provi- sions, do not come under the term of "goods," nor goods lashed on deck, unless sanctioned by usage, 19 3. In some voyages there is an usage to carry the "boat" on the ship and slung on the quarters, 83 4. Usage may be admissible to explain what is doubtful— it is never admissible to contradict what is plain, 84 5. The principle upon which usage may be given in evidence as to goods lashed on "deck," is, that they are not in the place where goods are usually stowed. And the 474 INDEX. underwriter is entitled to have notice of the fact, or of the nature of the goods, 84 6. But where there was an insurance "upon the ship and all her furniture and apparel, including the hoat," iind evidence was given that in voyages such as the one in question, ships invariably carried a boat in the place where the boat in question was carried, and slung as this boat was slung — parol evidence will not be admitted to prove that underwriters are not liable for the loss of a boat so slung. Inasmuch as the policy imports that the insurance is on the whole ship and all its furniture, including the boat, without any restriction, the usage is attempted to be admitted to contradict the express terms of the policy, by showing that the boat by usage, is to be excluded, 83 7. Whatever is usually done by every ship in a particular voyage, is understood to be referred to by every policy, and to make a part of it as much as if it was expressed, 87 8. The Courts of law in putting a construc- tion upon policies, have always been guided by the custom and usage of trade, 197 9. Policies are to be construed largely for the benefit of trade, 201 10. Where goods were insured to the coast of Iiabrador till safely landed, are kept on board a long time after the ship's arrival — this being the usage of the trade at that place, the risk continues, 203 11. Every underwriter is presumed to be acquainted with the practice of the trade he insured, and that whether it is recently estab- lished or not, 205 12. Evidence of the practice of the trade is to be received : and the underwriter is bound to know it, 206 13. A ship may go to the general convoy at the risk of the underwriters, 198 14. A ship insured from London to the East Indies, "warranted to sail with con- voy :" the warranty is to be construed accord- ing to the usage among merchants, that is, from such place as convoys are to be had, as the Downs, 198 15. An insurance on an Indian voyage in- cludes the "country voyage" by the usage of the trade, 214 16. So, also, where the liberty was only "to touch and stay at any port or place:" by the usage of the trade this covers the inter- mediate voyages, 217 17. If a ship be insured on a trading voy- age, the assured must carry the trade on with the usual and reasonable expedition, 259 VALUATION. 1. The effect of the valuation is only fix- ing conclusively the prime cost, 265 2. If it be an open policy, the prime cost must be proved. In a valued policy it is agreed to, 265 3. To argue there can be no adjustment on a valued policy, is directly contrary to the terms of the policy. It is expressly subject to average loss if the loss upon sugars exceed five per cent,, 266 4. A valued policy is not to be considered as a wager policy, or like "interest or no interest," 265 5. The value should be fixed, so that the assured obtains no more than an indemni- ty, 265 6. If it be under-valued, the merchant him- self stands insurer of the surplus, 265 7. There is no case or principle of the law of insurance, which makes the estimated value in the policy a circumstance on which the question of total or average loss ought to turn, " 266 8. After judgment by default on a valued policy, the plaintiff's title to recover is con- fessed, and the value is fixed by agreement in the policy, 266 .X' "^^^'^ LOS ^^ UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 695 410