Imágenes de páginas
PDF
EPUB

The order was sent by the Navy Board on the 21st, but on account of the ice, the ship could not be moved till the 27th, and then in warping her towards the dock, a rope broke, she grounded, and was totally lost. The jury found that the vessel remained at her moorings from the 18th February to the 27th, on account of the ice, and not for want of an order to enter the dock: it was held that the plaintiff was entitled to recover, for that the place where the vessel was moored was not the place of her ultimate destination, the policy did not expire when she had been there twenty-four hours in safety and as the vessel remained at these moorings on account of the ice, and not waiting for the order, the underwriters were not discharged by the delay.

When a policy is upon freight "at and from a given place," the time at which the policy attaches seems to be regulated by the following principles. Generally speaking, the risk commences from the time the goods are put on board: and unless there be a contract for the shipment, or a charter of affreightment, the assured can only recover in respect of the freight of those goods which are on board at the time of the loss, both in the case of an open and valued policy; though in the case of Montgomery v. Eggington (a), which was the case of a valued policy, and a portion only of the goods were on board, but the remainder ready on the quay, the assured recovered for the whole value in the policy. In Curling v. Long (b), Eyre, C. J., says, "The inception of freight is breaking ground. In the law of insurance, indeed, this doctrine is not holden so strict, for there, if the goods be so situated as to create a well grounded expectation of freight being raised, it is decided that the freight is insurable and recoverable." The principle which appears to be deducible from the authorities on this subject, to enable the assured to recover on a policy on freight, in cases where the goods are not actually on board, is, that there must be a contract for the shipment of the goods, the vessel in a condition to receive them, and the goods ready to

[blocks in formation]

Policy on General prinfreight. ciples respecting the commencement of

the risk.

The cargo

on board, but

the ship not ready to receive it, the policy did not attach.

be put on board, and the owners be prevented by one of the perils insured against from earning the freight. The first case on this subject is that of Tonge v. Watts (a), in which case, though the cargo was ready to be put on board, the ship was not in a fit state to receive it, nor does it appear that there was any contract for the shipment.

The circumstances of the case were these:

The plaintiff insured on ship and freight at and from ready to be put Jamaica to Bristol. A cargo was ready to be put on board; but the ship being careening, in order for the voyage, a sudden tempest arose, and she and many others were lost. The rigging and parts of her were recovered and sold, and the defendant paid into Court as much as, upon an average, he was liable to for the loss of the ship: but the plaintiff insisted to be allowed 6007. for the freight the ship would have earned in the voyage, if the accident had not happened. But as the goods were not actually on board, so as to make the plaintiff's right to freight commence, Lord Chief Justice Lee held he could not be allowed it, and he was nonsuited.

In the case of

valued policy a part only of the cargo on board, but the rest being

ready, the as

sured recovered

for the whole.

But if the policy be a valued policy, and part of the cargo be on board when such accident happens, the rest being ready to be shipped, the insured may recover to the whole amount. This was so decided in the case of Montgomery v. Egginton (b), in an action brought by the assured on a policy on freight, valued at 1500%.: in fact, only 500l. worth of freight was on board, when the ship was driven from her moorings and lost; but goods to the amount of the rest of the freight were ready to be shipped, and were lying on the quay for that purpose at the time.

Lord Kenyon, Chief Justice, before whom the cause was tried, told the jury, that the question for their consideration was, whether this was a mere colourable insurance and a gaming policy? or whether it was a bond fide transaction? If the latter, the assured was entitled to recover for the whole value in the policy. The jury found for the whole sum. The defendant's counsel obtained a rule for a new (b) 3 T. R. 362.

(a) 2 Strange, 1251.

trial, which he afterwards abandoned, the Court being strongly of opinion against him.

the above case.

In commenting upon this case, Lord Ellenborough, in Remarks on Forbes v. Aspinall (a), says, "The grounds of this decision. do not appear: whether it proceeded upon a distinction between valued and open policies is not expressly stated; and it might be, that upon an open policy in such a case, Lord Kenyon and the Court might have thought the assured would have been entitled to recover in respect of the freight of the goods on shore, as well as for the freight of those that were actually put on board. There might be circumstances in that case which would have entitled the shipowner to full freight, had the owners of the goods on shore refused to let them be shipped, and the ship had sailed with that part only which she had on board: there might have been a contract for giving the ship a full loading, or it might have been considered (though it is difficult to suppose it was) that as the residue of goods to complete a cargo was ready to be shipped, and lying in the quay for the purpose, it was the same to the assured as if they really had been shipped. If that case, however, is to be considered as having decided, that upon a policy estimating the freight upon a full cargo at 15007., a loss by a peril insured against may be recovered to that extent, when a third only of a cargo is obtained, and freight to the amount of such third could only have been earned, and when it was uncertain whether more could ever have been procured: we should pause long before we allowed ourselves to adopt such a ground of decision: we should hesitate extremely before we should say that 1500l., the calculated amount of the whole intended risk, should be paid for the loss of 500%. incurred in respect of a third of the intended risk; in other words, that a total loss should be paid for a loss of only one-third of that which the parties to the insurance contemplated as the whole subject insured."

So likewise in the case of Patrick v. Eames (b), which was

[blocks in formation]

an action on a policy of insurance on the freight of the ship Jane, valued at 40007., "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 expected that this would be supplied by Don Emanuel Martinus, 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 fill 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 Montgomery v. Eggington, that the plaintiff was entitled 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 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 whether 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 the 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 arisen, the ship might have been obliged to return nearly

If a ship be certain place

chartered to a

to take in a

cargo, and on

" her way
thither be lost,

"on freight" is

liable.

empty. 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 the underwriter on the freight nevertheless attaches. Thus in Thompson nevertheless v. Taylor (a), on an open policy on freight, at and from London and Teneriffe to any of the West 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 hundred 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 plaintiff 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 Kenyon 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. Watts, and had it been so, my judgment now would have gone with that case. But this case depends upon its own peculiar circumstances. 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-party there was an inception in the contract, by the

(a) 6 T. R. 478.

« AnteriorContinuar »