Duration of the In the following case a question was made as to the conrisk on goods. tinuance of the risk on goods insured "until arrived at the last place of discharge in the outward voyage." Where goods are insured "till arrived at the last place of discharge in the outward voyage," the risk on the goods terminates at The goods in question were the investment of an East India captain, and the voyage for which they were insured was described in the policy to be "at and from London to Madeira, the Cape of Good Hope, and all or any of the ports or places in the East Indies, China, Persia, or elsewhere, on of the outward this or the other side the Cape," "until arrived at the last place of discharge on the outward voyage, with leave to exLondon Assur- change the goods in the course of the voyage.” ance Company, 1 Campb. 93. the port where the great bulk cargo is landed. Richardson v. If parties wish to protect goods until finally disposed of in some market abroad, they should insure them "to a market." The ship arrived at Calcutta, and there discharged the whole of the cargo she carried out for the East India Company; after which, she was ordered by the Company on an intermediate voyage to Madras, and took on board a cargo to be conveyed thither. The captain had also landed the whole of his investment (the goods insured by this policy) at Calcutta, and had disposed of a considerable part of it; but, being unable to find purchasers for the residue, he resolved to carry it on to a new market, and, with this view, re-loaded it on board the ship for Madras. The ship was lost on the intermediate voyage from Calcutta to Madras. The question was, whether, under the terms of this policy, the risk still continued to run on the residue of the captain's investment on board at the time of loss, or whether it had ended at Calcutta. Lord Ellenborough held that it had ended at Calcutta ; for, as all the Company's outward cargo had been discharged there, that port was the "last place of discharge on the outward voyage," upon the true construction of the policy. (k) "If," said Lord Ellenborough, "the Company's officers wish for the protection which is here sought (i. e. until the goods are finally disposed of in some market in the East (k) Richardson v. London Ass. Comp., 4 Camp. 95. Indies) they must not limit the risk to the duration of the Duration of the risk on goods. outward voyage, but extend it to the arrival of the goods to a market at their final port of discharge." There can be no doubt that an insurance in such form would effectually protect the goods until actually disposed of in some foreign market. (1) When the risk on the goods is made by the policy to continue "until they shall be arrived at their final port of destination," it will frequently become a question of fact pending upon the intentions of the parties, what "the final port of destination" really was. de During the suspension of friendly relations between this country and China, in the year 1841, the English ship Penang arrived in Macao Roads, with a valuable cargo, insured from Liverpool for various ports in China, by a policy which, in contemplation of the then existing state of things, contained the most extensive liberties for the Penang, on arrival in the China Seas, to tranship cargo on board any other vessel, to visit any ports in any order, and to remain there till it should be deemed expedient to proceed to her port or ports of discharge, continuing the risk "until the goods should be arrived at their final port of destination." The consignees at Macao, finding that it would be dangerous to send the goods up the river to Canton, and also that it would be necessary, owing to sea damage sustained in the voyage, to tranship them, hired the James Laing as a temporary receiving ship, and sent her with the Penang to Hong Kong the safest anchorage in those seas in order there to receive the cargo from the Penang, and to keep it on board till it could be either warehoused at Hong Kong, or sent on to Canton, or some other market in China; there being then no market whatever at Hong Kong. While the cargo was thus in course of transhipment in Hong Kong Roads, a violent typhoon came on, in which the James Laing, and (See the cases collected, in next charge," on the continuance of risk on Section, as to the effect of insuring ship. "until arrival at the last port of dis When goods are insured till their final port arrived" at of destination," the question, what is the final port of destina tion? will defacts of the pend on all the Duration of the all the goods that had, up to that time, been transhipped into risk on goods. her, were sunk and utterly lost. It was to recover this loss that the action was brought. The defendants contended, first, that Hong Kong had been selected by the consignees as the final port of destination; that the goods lost on board the James Laing, having been put on board that ship as a receiving ship or floating warehouse in Hong Kong Roads, must be considered as having been landed at Hong Kong; and that, consequently, the risk on those goods had ceased under the policy, at the time of the loss. Waiting at another port, flagrante bello, till hostilities have ceased The court, however, upon these facts, were clearly of opinion that Hong Kong was not the final port of destination within the contemplation of the parties. It was also contended that, even supposing Canton to have been the final port of destination, and the intention to have been merely to keep the goods on board the James Laing till they could be sent on to Canton, the risk upon the goods was determines the equally determined, upon the principle established by the case with the port of destination, risk; but the case is other wise where there has been no formal declaration of hostilities; so that to proceed to such port would not be illegal, but only dangerous. Where goods, by the custom of trade, are of Brown v. Vigne, that if a vessel, instead of proceeding to her originally destined port, chooses to wait at another, until the termination of war, the voyage is thereby determined. But as to this, the court said that the circumstances in Brown v. Vigne were widely different; for, in that, there was actual war with Spain, so as to render it illegal to send on the goods to their original port of destination; whereas here, there having been no formal declaration of war against China, it would not have been illegal, but only dangerous and inexpedient, to have sent the goods on to Canton, or any other market in China. Accordingly, the court decided that the risk on the goods lost in the James Laing was a continuing risk, under the policy, at the time of the loss, and that the plaintiff was, therefore, entitled to recover. (m) The facts of this case are very similar to those of Tierney v. Etherington. (m) Oliverson v. Brightman, 15 L. J. Qu. B. 274. In that case goods were insured on board a Dutch ship "from Malaga to Gibraltar, and at and from thence to England and Holland, both or either," continuing the risk "till the ship and goods be arrived at England or Holland, and there safely landed." There was a special clause in the policy, by which it was agreed, that, on the arrival of the ship at Gibraltar, the goods might be unloaded and re-shipped in one or more British ship or ships for England and Holland, &c. When the ship arrived at Gibraltar there was no British ship there, and the goods were unloaded and put into a store-ship (which it was proved was always considered as a warehouse), in order to be kept there till some British ship should arrive. Two days after the goods were put into this store-ship they were lost in a storm. is at the risk of 1 Burr. 348. For the underwriters it was objected that the risk on the goods was at an end upon their being loaded into this Etherington, store-ship, which was to be considered as a warehouse on land; but C. J. Lee held that the construction should be according to the course of trade in Gibraltar; and that, as it appeared to be the usual method of unloading and re-shipping in that place, that, when there is no British ship there, the goods should be kept in store-ships until one arrives, the risk upon the goods so loaded according to such custom should be held to continue, and the underwriters to be liable. (n) SECT. II. Duration of Risk on the Ship. ART. 1. Commencement of the Risk. risk on the ship. § 166. In most of the continental states the period of the Duration of commencement of the risk on the ship is fixed by their ordinances, subject, of course, to be varied by the express stipulations of the parties. (n) Tierney v. Etherington, 1 Burr. 348, 349. Duration of risk on the ship. In the mercantile states of Holland and Germany it is generally made to commence from the moment of the ship's beginning to load the goods on board for the purposes of the on ship abroad. voyage insured. (0) Commencement of risk In this country. If insured the risk on ship commences when she quits her moorings and breaks ground, being in a state of perfect equip ment and readiness for the voyage. In France, unless otherwise stipulated by the policy, the risk on ship commences from the day on which the ship sets sail from the port of loading. (p) In this country, the period at which the risk on the ship commences depends entirely on the terms of the policy, and the nature of the voyage intended to be insured. If the ship be insured simply "from" a port, or if the adventure on the ship be made by the policy "to begin on the ship from A. B.," the risk on the ship does not commence until the ship sails on her voyage "from" such port; i. e. until she quit her moorings and breaks ground, being in a state of perfect equipment and readiness for her sea voyage. (q) If the ship be insured "at and from" a home port, i. e. if If insured "at the terminus a quo be a port in this country in which the ship and from" a home port, it begins immediately on the execution of the policy. is then lying, the risk commences on the ship immediately upon the execution of the policy, and continues during the whole time the ship remains in the home port in a course of preparation for her voyage. (r) If the ship be insured, and the adventure made to commence upon her "at and from" some foreign port at which the ship is expected to arrive, with the view of protecting her for her homeward voyage; it is now settled in this country, that, in order to make the risk under the homeward policy (0) Magens, in his second volume, (p) Code de Commerce, art. 328. 341. ping Ordinance is to the same effect. Benecké, vol. ii. p. 230. Petti (9) Marshall on Ins. 260. grew v. Pringle, 3 B. & Ad. 514. S. L. in the United States, see Kent's Comm., vol. iii. p. 307. note (a), ed. 1844. (r) Motteux v. London Ass. Comp., 1 Atkyns, 548. Palmer v. Marshall, 8 Bingh. 79. |