risk on the ship. Moffat v. Ward, 4 Dougl. p. 29. to Bengal: the court held, that the risk on the ship was at Duration of an end, at the time of the loss, for by the true interpretation of the policy, the last port of discharge was not, that where the ship might have been originally destined to discharge any part of her cargo, but that where she actually did discharge the whole of it. (y) In this case the whole cargo had been discharged at Madras: in that which follows, only a part of the cargo was unloaded there, and the residue, which was intended for an ulterior port, was still on board at the time of the loss. A ship was insured" from London to Madras and Bengal, or the ship's last port of discharge of her Europe cargo beyond the Cape of Good Hope." The ship, as the underwriters knew at the time of subscribing the policy, was des tined for China: on arriving at Madras she unloaded a considerable part of her cargo there, but still had on board all that part of it which had been originally destined for China, when she perished by a hurricane in Madras roads. Lord Mansfield told the jury to find for the plantiffs, for he held that the risk on the ship, under this policy and these circumstances, continued till the ship's arrival at China. (z) If a ship insured to port or ports "until arrived at her last port of discharge," elects to put into some other port from the impossibility or illegality of continuing her voyage to the port of original destination, and disposes of a consider able part of her cargo in the substituted port, the risk on the ship ends after she has moored twenty-four hours at such port, even though the captain may not at the time of loss have entirely abandoned the intention of ultimately proceeding to the place of his original destination. A ship was insured "at and from London to any port or ports in the river Plate, until her arrival at her last port of discharge in the river Plate.” Preston v. Greenwood, Dougl. 28. If a ship inports "until sured to port or arrived at her last port of discharge," puts stituted port from the impossibility or illegality of continuing her into some sub voyage to her port of original destination, and there disposes of the great bulk of her cargo, the risk on the ship There are three ports in the river Plate which are reached is at an end, (y) Moffatt v. Ward, 4 Dougl. 29. note (a), 31. note (b). (2) Preston v. Greenwood, 4 Dougl. 28. 33. See also Moore v. Taylor, 1 though the in Duration of risk on the ship. tention of ultimately proceeding to the destination may not have been aban doned. Browne v. 12 East, 283. in the following order by a ship arriving from England: 1. Maldonado, 2. Monte Video, 3. Buenos Ayres. The captain, on sailing from England, had intended to port of original proceed to Buenos Ayres, but on his arrival in the river Plate, learning that Buenos Ayres was in the hands of the Spaniards, then at open war with this country, he sailed past Maldonado, and put into Monte Video, which was then occupied by the English; his intention, on putting into Monte Video, was to land and sell his whole cargo and finish the voyage at that place, if he found the markets favourable; finding the sale, however, duller than he expected, he had not given up all thoughts of proceeding on to Buenos Ayres for a market, with that portion of the cargo which he could not sell at Monte Video, when his ship was fouled in Monte Video harbour, and received the damage, to recover which the underwriter was now sued under this policy. The words "last port of discharge" must mean The court held that the plaintiff could not recover, the risk on the ship having come to an end after her being safely moored for twenty-four hours in Monte Video. (a) In the course of the argument Mr. Justice Bailey intimated that the words "last port of discharge," must mean "the last practicable friendly port of discharge;" just as in an insurance on a ship " from Liverpool to any of the Windward or Leeward isles;" Lord Kenyon had previously held that the port of original meaning of such policy must be to any of such isles as were "last practicable friendly port of discharge," whenever the destination is alien enemies, in the hands of friendly; for that a hostile port could not be in the contemplation of the parties at the time the policy was effected. (b) flagrante bello. The case is different where there is no bel lum flagrans, Oliverson v. 15 L. J. Q. B. It will be observed, that in this case the port originally contemplated as the final port of discharge, was in a state of open hostility at the time the vessel reached the river Plate; so that it would have been absolutely illegal for her to have proceeded to such port: this is very different from the case of a mere temporary obstruction, or one in which, though there might be danger, yet there would be no illegality in (a) Browne v. Vigne, 12 East, 283. (b) Neilson v. Delacour, 2 Esp. 619. risk on the ship. proceeding to the final port; and this constitutes the point Duration of of distinction between this case and that of Oliverson v. Brightman (c), cited in the last section. If the ship finally abandons all intention of proceeding to the port of original des tination, the risk is at an end from the § 176. If a ship entirely abandons the voyage insured, and finally gives up all hopes of proceeding to the port of her original destination, the risk on the ship is at an end immediately that determination is definitively formed. If, on the other hand, the ship without thus giving up all hope of ultimately proceeding to her final port of discharge, yet yielding to the irresistible force of present circumstances, puts back or lies by for a time, with the intention of ultimately proceeding to the original terminus, she will be considered still to be on the voyage insured, and the risk will continue till she arrives at the final terminus. In order that this should be so, obstruction must be only temporary in its nature; and the ultimately proultimate point of destination must continue the same. the Thus, where a ship insured to a port in the Baltic, found it on her approach blocked up with ice, and thereupon took shelter for the winter in a place as near to it as she could safely go, and waited till the spring, when, on the first thaw, she sailed for it again; the risk on the ship was held to continue till her arrival there. (d) But where a ship insured from London to Revel, on hearing of the embargo laid on that port in 1807 by the Russian government, sailed back from the Baltic by orders of a British man of war, to Copenhagen roads, and from thence, entirely abandoning her voyage, accompanied the fleet to England; Lord Ellenborough nonsuited the plaintiff, on the ground that the risk had terminated under this policy, at all events, directly the ship had sailed back to England from Copenhagen roads. (e) His lordship, however, remarked, that had the ship been (c) Oliverson v. Brightman, 15 L. J. Q. B. 274. (d) See Blackenhagen v. London Ass. Comp., 1 Camp. 455., and Browne v. Vigne, 12 East, 286. (e) Blackenhagen v. London Ass. Comp., 1 Camp. 453. moment such ceeding to her port of original destination. Blaekenagen v. London Ass. Comp., 1 Camp. 455. ңн Duration of risk on the ship. Parkin v. Duration of the risk on ship under insurances on the East India trade. Such policies cover the risk on the country trade, though not specifically mentioned therein. coming home, as the best means of getting finally to Revel, and there had been a possibility of her accomplishing that object when the loss happened, she might still have been considered in the course of the voyage insured; but that all thought of completing her original voyage seemed to have been abandoned, when she sailed home from Copenhagen with the fleet. (ƒ) In such cases, in fact, the risk may be held to continue on the ship during the whole period in which she can be fairly considered as taking measures with a view to ultimately arriving at the port of destination; but she will not be protected if, when turned away or forced to desist from proceeding to her original port, from its being in the hands of the enemy, she forthwith prosecutes a new voyage to the nearest friendly port, even though it be a voyage of necessity. (g) § 177. By the usual course of the East India Company's trade, the Company's ships on arriving out were liable to be employed at the discretion of the different presidential governments, in intermediate voyages, or in what is called the country trade; the charter-parties, which were printed forms of very long standing, contain clauses giving permission to prolong the ship's stay for a year or more; and the policies were generally adapted to this usage, which was moreover so familiarly known to all mercantile men engaging in this trade, that the courts uniformly held that all policies effected on Company's ships covered all intermediate voyages in the Indian seas, unless restricted by special clauses. (h) So great indeed was the influence of usage in the construction of these policies, that Lord Mansfield held that a policy on a Company's ship containing a liberty to touch and stay, but not to trade, would yet protect the ship while engaged in a country voyage for trading purposes (i): nor was the (f) Blackenhagen v. London Ass. (9) Parkin v. Tunno, 11 East, 22. 419. Park, 104. 8th ed. Marshall on Ins. 273. (i) Farquharson v. Hunter, Park, 105. 8th ed. Marshall on Ins. 274. risk on the ship. duration of the risk under such a policy confined only to Duration of one intermediate voyage, but extended to protect even a second. (j) China held to under an East India policy on ship "from London to Madras and ship's last port It was formerly a rule in the East India trade, that a A voyage to voyage to China was not to be held included in a policy on a Company's ship, unless China were expressly named in the instrument; where, however, it clearly appeared that the ship's destination for China was publicly known at the India House, and that the premium was the same as it would have been on a China voyage, although the insurance in terms was only "from London to Madras and Bengal, or the ship's last port of discharge of her Europe cargo beyond the Cape of Good Hope;" Lord Mansfield held, that although the word China was not introduced into the policy, yet, as the words in themselves certainly extended to China, the risk, under the circumstances, must be considered as continuing on the ship till her arrival in China, for the underwriters must clearly be considered to have contemplated the ship's proceeding thither when they subscribed the policy. (k) 'It seems clear that, by consent of both parties, the risk on the ship may terminate before her arrival at the place specified in the policy as the terminus ad quem of the voyage insured. Greenwood, 4 Dougl. 28. The risk on ship may terminate before the terminus her arrival at ad quem, by "acceptance of Thus where a ship, insured "from Boston to Tonningen," the cargo elsewas compelled, by stress of weather, to enter the Elbe for where. safety, and proceed up to Gluckstadt, where the consignees consented to receive the cargo, and did receive it: it was held in the United States, that the assured, having thus adopted Gluckstadt as the port of delivery, the risk on the ship terminated at that port. (7) part of the produce of the But it is quite clear, that neither the risk on the ship, nor But not by sending home on any other interest, can be terminated, by a portion of the cargo, or produce of the voyage, being sent home, and arriving in safety before the loss. (m) voyage. |