surance. Park on In- 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. Everything 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 was 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, when foreseen, is rather allowed to be done than what is left to the master's discretion upon unforeseen events; yet, if the master, ex justá causá, 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 burnt in a bank-saul, and not in the ship; upon land, not at sea, or upon water; and being appertinent to the ship, losses and dangers ashore could not be included. The answer is obvious: 1st, the words make no such distinction ; 2nd, 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 tackle upon land, 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 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; 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 accidental necessity of refitting, the master might have justified taking them out of the ship, ex justá causá: but describing the voyage is an express reference to the usual manner of making it, as much as if every circumstance was mentioned. 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 justá causa, which always exHad the insurers in this case been asked, whether the tackle should be put in the bank saul, they must, for their own sakes, have insisted 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. 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 view and contemplation of the parties to the contract, the insurers are liable to answer for this loss." The general rule of construction, so accurately expressed by Ld. Ellenborough in Robertson v. French, stands at the head of this chapter. cuses. So, the clause, warranted to depart with convoy, must be construed CHAP. II. according to the usage among merchants; that is to say, from the place where convoys are usually to be had. So, a particular voyage is not necessarily the most direct, but such as the usage of the trade points out. So, if an insurance be of goods to such a city, and the goods are brought in safety to such a port, though distant from the city, it is a compliance with the policy, if that be the usual place to which ships come. If the usage be general, though not uniform, the underwriters are bound to take notice of it.d A policy shall be construed to run until the ship shall have ended How long and be discharged of her voyage; for arrival at the port to which to run. she was bound, is not a discharge till she is unloaded; and it was so adjudged by the whole court upon demurrer.e But, although this construction may be perfectly right, where the policy is general from A. to B., yet, if it contain the words usually inserted, and till the ship shall have moored at anchor 24 hours in good safety, the underwriter is not liable for any loss arising from seizure after she has been 24 hours in port, though such seizure was in consequence of an act of barratry of the master during the voyage; for, if it were extended beyond the time limited in the policy, it would be impossible to lay down any fixed rule, and all would be uncertainty and confusion. In the case cited for this, the proximate cause of the loss was, not the barratry of the master, but the seizure after the policy had expired; and therefore the underwriters were not liable for the loss. But when the proximate cause of loss, as an injury by stranding, takes place during the time covered by the policy, though the loss be not ascertained till after, the underwriters are liable. Under policies so worded, it is often difficult to say when the ship is moored in safety. To determine it we must always ask, was she, at the time of the injury, at the place of her destination, or at the spot where her cargo was intended to be discharged.h In an action upon a policy of insurance, before Ld. Ch. Just. Hardwicke, it has been held that the words at and from B. to E., meant the first arrival at B.; and it was agreed, that when such words are used in policies, first arrival is always implied and understood. It has likewise been held, that when a ship is insured at and from a place, and it arrives at that place, as long as the ship is preparing for the voyage upon which it is insured, the insurer is liable; but if all thoughts of the voyage be laid aside, and the ship lie there five, six, or seven years, with the owner's privity, it shall never be said the insurer is liable; for it would be to subject him to the whim and caprice of the owner. a Lethulier's Ca., 2 Salk. 443; Gordon v. Morley, and Campbell v. Bordieu, 2 Str. 1265. b Bond v. Gonsales, 2 Salk. 445. f Lockyer v. Offley, 1 T. R. 252. The case cited surance. Park on In- was an action on a policy of insurance on a ship at and from Jamaica to London. The ship had also been insured from London to Jamaica generally, and was lost in coasting the island, after she had touched for some days at one port there, but before she had delivered all her outward-bound cargo at the other ports of the island. This was an action on the homeward policy; and in order to show when the homeward-bound risk commenced, it was necessary to show at what time the outward-bound risk determined; and the jury, which was special, after an examination of merchants At and from as to the custom, by their verdict decided that the outward risk a place. 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 the Trin. Term following, a motion was made for a new trial, but it was refused; because it had been thoroughly tried, and no new light could be thrown upon it, although Ld. Mansfield said the inclination of his opinion at the trial was the contrary way. Mr. J. Wilmot thought the construction put upon the policy by the jury was the right one. In a similar case, Ld. Mansfield laid down the same doctrine to the jury; viz., that the outward risk upon the ship ended 24 hours after its arrival in the first port of the island to which it was destined; but that the outward policy upon goods continued till they were landed.b a Under a policy at and from an island, a ship is protected in going from port to port in the island. But a policy at and from a place, for instance at and from Lyme to London, which not only designates a town, but a port also, comprehending a large district of coast, so that Bridport, which is 8 miles nearer to London than the town of Lyme, does not protect a cargo laden anywhere within the limits of the port, such as Bridport, but must be taken to refer to the town itself. A policy at and from Martinique and all and every W. I. Islands was held to warrant a course from Martinique to islands not on the homeward voyage. Note.-When several termini are mentioned in a policy of insurance as the objects of the assured, those ports must be gone to in the order in which they are mentioned in the policy, otherwise the assured will be guilty of a deviation.f 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, and Langhorne v. Hardyh (both in the court of C. B.), and in Mellish v. Allnutt, goods loaded on board before the ship's arrival at the place named, as that from which the risk is to commence, will not be protected. But whenever the court can collect from the circumstances of the case, or from the words used, that it was the intention a Camden v. Cowley, 1 Bl. 417. b Barrass v. The L. Ass. Sit. after Hil. 1782, at Guildhall; Leigh v. Mather, 1 Esp. 412. c Cruikshank v. Janson, 2 Taunt. 301. d Constable. Noble, 2 Taunt. 403; Payne v. Hutchinson, Ib. n. e Bragg v. Anderson, 4 Taunt. 228: see also Metcalfe v. Parry, 4 Camp. 123; Lambert v. Liddard, 5 Taunt. 430; f Beatson v. Haworth, 6 T. R. 531; i 2 M. & S. 106. of the parties to cover such antecedent loading, they will give the CHAP. II. policy that construction.a In M'Swiney v. R. Exch. Ass. Co. the plaintiff effected a policy at and from Madras to London on profit on rice laden or to be laden, beginning the adventure upon the goods from and immediately after the loading thereof aboard the said ship at M. A part of the rice was shipped and the rest ready for shipping, but before it was actually so, the ship was by a peril of the sea disabled from taking in the rest. Held, amongst other important points in the cause, that the policy attached only to such rice as was actually on board. When there is a liberty given by a policy to touch and stay at all Liberty to ports for all purposes whatsoever, the stay must be for some pur- stay. pose connected with the furtherance of the adventure, and whether that purpose be within the scope of the policy is a question for the court. But whether the ship has stayed an unreasonable time is for the jury. Such a liberty includes a liberty for the purpose of taking in part of the goods insured.d с In an insurance upon freight, if an accident happen to the ship before any goods are put on board, which prevents her from sailing, the insured upon the policy cannot recover the freight which he would have earned if she had sailed. But if part of the cargo be on board when such an accident happens, the rest being ready to be shipped, the insured may recover to the whole amount.f On an assurance against loss by fire, if fire be the causa causans, whether it be wilful or accidental, the underwriters are liable for the loss. When the fire took place in a public lighter used by the shipowners to take the cargo on board, it was held that the 26 Geo. 3, c. 86, s. 2, did not protect them, as the fire was not on board their ship.h The words goods, specie, and effects, by the usage of trade, cover a sum of money advanced by the captain for the benefit of the ship, and for which he charges respondentia interest. Provisions for the use of the crew are protected by a policy on ship and furniture, but such articles as sailors' wages and provisions expended while a ship is detained to refit, can never be allowed as a charge against the insurer on the ship. So when there was a collision, and it turned out that the ship insured had done more damage than she had received, and was obliged to pay the owners of the other ship to some amount, held not chargeable on the underwriters.m In an insurance surance. Purk on In- 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, &c. The case 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.a Time-policies. b In the construction of policies of insurance for time, which are very frequent, the same liberality, equity, and good sense, have always prevailed, as in all other insurances and the courts have gone, as far as possible, to decide according to the intention of the parties. But although the judges have been thus liberal in their constructions of this contract, and have gone as far as possible to effectuate the intention of the parties, yet they have never extended those equitable principles to such a length as to say, that when a man has insured one species of property, he shall recover damage, which he has suffered by the loss of a description of property different from that named in the policy. Thus a man, who has insured a cargo of goods cannot recover, under such a policy, the freight which he has paid for the carriage of that cargo; nor shall it be permitted to an owner of a ship, who insures the ship merely, to demand satisfaction for the loss of merchandise laden thereon, or to ask from the insurers extraordinary wages paid to the seamen, or the value of provisions consumed, by reason of the detention of the ship at any port longer than was expected. Such attempts have, indeed, been made, but they have always been resisted for to admit of such demands would introduce an infinite variety of frauds, and would be repugnant to the most settled maxims of insurance law, and to the constant practice and usage trade. In Molloy it is said, that if a merchant insure a ship generally, and the ship then happen to be laden, and if it afterwards miscarry, the insurer shall not answer for the goods, but only for the ship. This position stands uncontradicted by any foreign writer, ancient or modern, and is supported by several decisions of the first authority in this country.d of Having said thus much of construction in general, by which it appears, that the material rules to be adhered to are the intention of the parties entering into the contract and the usage of trade, it will be proper to consider more particularly what shall be construed a loss within the meaning of the policy. This mode of treating the subject naturally leads us to consider losses by perils of the sea; losses by capture, and by detention of princes or people; and losses by the barratry of the masters or mariners; which are the great divisions of perils insured, and which will furnish materials for the three following chapters. a Hoskins v. Pickersgill, 3 Dougl. 223. b See Dixon v. Sadler, 5 M. & W. 415. c Molloy, b. 2, c. 7, s. 8. d Roccus de Assecur. Not. 16; Rcbertson v. Ewer, 1 T. R. 127: and see Brough v. Whitmore, 4 Ib. 206. |