policy the ship need not have been in any port in Newfound- Time policies. land on the 20th of October, yet, in order to make the policy attach at all, the ship must have originally sailed on the voyage insured, and that as in this case she had not done so, the assured could not recover, though the loss took place after the 20th of October, and when the ship had got into the course of the voyage described in the policy. (u) The point conceded in this case, viz. that in such a policy it is not necessary that the ship should be in the port named as the terminus a quo in the policy, at the time when the insurance is limited to commence, has been illustrated in the United States. But it is not necessary that be at the ter the ship should minus a quo upon the very day from which the policy is limited to take effect. American cases Thus, where a brig was insured" from Calais, in Maine, on the 16th day of July, to, at, and from all ports to which she might proceed in the coasting trade for six months;" and on this point. it appeared that the brig was not at Calais on the 16th July, but had been there subsequently within the six months; the court held that the policy had attached on the 16th July, "for it was the clear intent of the parties to insure on time, without regard to place where the vessel might then be, but only with regard to the employment in which she was engaged; viz. the coasting trade." (v) So where insurance was effected on a ship for one year "at and from Boston to Charlestown ;" and it appeared that the ship, which was covered by a prior policy, on time, had sailed from Boston before such prior policy had expired, the second policy was held to attach to the ship while at sea on the voyage, immediately upon the expiration of the first. (w) Where it is quite evident from the whole language of the instrument, that, although the risk is expressly made to commence from a specified local terminus, yet the policy is substantially a time policy; it has been held in the United States, that it will attach and operate as such, though the vessel may never within the term have been at the local terminus a quo named in the policy as the place where the risk 30. (u) Way v. Modigliani, 2 T. Rep. 20 Pickering's Rep. 389., cited in 1 Phillips on Ins. 440. (r) † Martin v. Fishing Ins. Comp., (w) See 1 Phillips on Ins. 440. Even though, in such policy pressly made to the risk is ex commence from a terminus a quo therein named, yet, if it be clear that the insurance is Time policies. substantially on time, the risk will be held to attach, though the ship may never, within the limits of the is to commence; a policy was effected on ship, "to, at, and from one or more ports in the globe, for one year, commencing the risk at Barbadoes the 7th of December, 1810, to continue till the vessel should be arrived and moored at anchor twentyfour hours in safety within the year aforesaid." The vessel term, have been was not at Barbadoes, as supposed by the policy, but the court said, her being so was immaterial, and that the risk would end with the year without any regard to her being in any port, either at that time or before: the beginning, duration, and end of the risk being well enough described, without any regard to the place where it was to commence, or to the vessel's being safe in port. (x) at the named terminus. Difference in effect between these mixed policies and voyage policies, viz. that in the former the risk is at an end directly the term expires, whether the voyage be then completed or not. The French law under the Ordonnance de la Marine pro vided that in such cases the risk should continue till the voyage was completed; but the Code de Commerce has assimilated the Upon the whole it may be laid down that, supposing a policy in this mixed form once to have attached, the only difference, in point of effect, between it and an ordinary voyage policy will be, that the risk upon the adventure will continue, not until the arrival of the ship, or the landing of voyage. the goods, but until the completion of the time specified, whenever and wherever that may be, totally irrespective of the completion or noncompletion of the These policies, in fact, afford no more protection, and not so much liberty, as time policies, and are, probably, for that reason, comparatively of rare occurrence. (y) The law of France, indeed, under the Ordonnance de la Marine, differed in this respect from the maritime law of almost all other countries (z); and provided, that under policies in this form, if the voyage were not completed at the expiration of the time, the risk should still continue, the underwriter receiving an increase of premium in proportion to the increased duration of the risk. (a) This provision, however, of the former law was designedly French law, on omitted from the Code de Commerce on the ground, as stated that of the rest by the codification committee, that to compel the under this point, to of Europe. (x) Manly v. United Marine and Fire Ins. Comp., 9 Massachussets Rep. 85., cited in 1 Phillips, 489. (y) Benecké, System des Assecuranz, chap. viii. introductory section, vol. ii. p. 203. ed. 1807. (z) See them collected by Benecké, ibid. sect. 3. vol. ii. p. 445. 35. (a) Ord. de la Marine, tit. vi. art. writer to continue the risk beyond the limit of time fixed in Time policies. the policy would be unjust, because the only meaning of its insertion must be to exempt him from liability beyond a certain ascertained period. (b) (b) Boulay-Paty, Cours de Droit, Mar. Comm., vol. iv. p. 173. ed. 1834. Boulay-Paty himself prefers the provisions of the old law, and considers it advisable to introduce a special clause into all such policies, that the risk shall continue after the expiration of CHAP. XV. DURATION OF THE RISK. Duration of the THE clause describing the voyage by its termini is distinct risk on goods. in our English policies from that which defines the commencement, continuance, and end of the risk. Clause fixing the duration of the risk. This latter clause, upon the construction of which the nature of the contract between the parties so materially depends, is in all our common printed policies in the following form: "Beginning the adventure upon the said goods and merchandises from the loading thereof on board the said ship at, &c. said ship, &c. upon the , 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 merchandises whatsoever shall be arrived at , upon the said ship, &c., until she hath moored at anchor 24 hours in good safety, and upon the goods and merchandises till the same be there discharged and safely landed.” As a great variety of decisions have taken place on the construction of this clause, and as the duration of the risk varies upon the different subjects of insurance, it will conduce to clearness if we discuss separately Sect. I. The duration of the risk on goods. SECT. I. Duration of the Risk on Goods. Art. 1. Commencement of the Risk on Goods. Duration of the § 156. " In this country the risk on the goods does not of the above clause which fixes the duration of the risk on risk on goods. goods is, that the common form of policy in this country Duration of the affords no protection against those dangers to which the goods. are exposed in being carried in boats or lighters from the quays or wharfs of the port of loading to the ship's side. commence, under the com mon form of policies till they are actually loaded on The foreign law in this re board the ship. In this respect law as to the insurance on goods in this country differs from that which prevails in almost all continental states, which either decree by their ordinances or stipulate in their policies, that the risk of the underwriters on goods shall commence directly the goods leave the shore, in order to be ferent. loaded on board the ship. (a) Of course, goods, even in this country, may be protected while thus in transit from the quay of the port of loading to the ship, by any express clause in the policy, duly framed for the purpose. Thus, where a policy on goods at and from St. Petersburgh to London contained the following clause; Beginning the adventure on the said goods from and immediately following the loading thereof on board boats at St. Petersburgh;" it was not disputed that, under this clause, the risk on the goods commenced directly they were put on board boats at St. Petersburgh to be loaded (in the usual course of trade there) on board the ship at Cronstadt. (b) (a) Thus the law of Hamburgh provides that the risk on goods shall begin immediately from the time the goods leave the shore (da das gut vonn Lande schiedet), and continues till they are landed again in safety at their place of destination. (Assecuranzordnung, tit. v. art. 11. 13.) By the Antwerp policies "the risk on merchandise begins from the moment they are loaded in the ship, or in lighters to convey them there, and continues till landed at the port of discharge." (Vaucher, Guide to Marine Ins., p. 16.) The ordinances of Amsterdam (art. 5.) of Rotterdam (art. 46, 47.), and of Spain (Ordinanzas di Bilbao, art. 37, 38.), go even further, and declare that the risk on goods shall commence from the time they are brought down to the quay or wharf in order to be loaded on board. The Stockholm policies agree with these latter ordinances. (See Vau- E E See per spect is dif The risk, how- ever, may, by a commence on fore they are board. |