A ship is chartered from A. to B. and back

tain freight for

departure from the Thames; for the covenant in the charterparty was to go from the port of London. In the case from Strange, the inception of the contract would have been by taking the goods on board, which not being done, the insurance did not attach. In the case of Montgomery v. Eggington, there was an inception of the contract, and the plaintiff recovered. The case in Strange importantly differs from this; but I am now completely satisfied, though the case is new, that the plaintiff ought to recover."

Mr. Justice Grose.-"In this case the freight begins to run in consequence of the ship's departure from London; the plaintiff, therefore, has an interest in the voyage. But in Tonge v. Watts, the voyage was not begun, nor were the goods on board."

Mr. Justice Lawrence.-" I think this plaintiff had an insurable interest: for it seems to me equally as strong an interest as the profits to arise from a cargo of molasses, which have been held to be an insurable interest (a). It is said that the plaintiff had a mere right of action against the freighter; and if he had not provided a cargo, though the plaintiff might recover against the freighter for breach of contract, yet he could not recover against the underwriters. It is true an insurance on freight could not have been recovered, if the ship had proceeded to the West Indies without one. But here, by a peril in the policy, the assured is prevented from earning a specific freight; and, therefore, the rule for entering a nonsuit must be discharged." (b)

So in Horncastle v. Suart, (c) where a ship was chartered on a voyage from London to Dominica, and back to London, to A., at a cer- at a certain freight upon the outward cargo, and after delivering her outward cargo at Dominica, the charterers current freight were to provide her a full cargo homeward, at the current home; before freight from Dominica to London, it was held, that an whole outward insurance, by the owner of the ship, on the freight at and

the outward voyage and the

she unloads her

(a) Grant v. Parkinson, see ante, p. 38, 43, 53.

(b) See also the case of Macken

zie v. Shedden, 2 Camp. 431.

(c) 7 East, 400.

fore any of her homeward cargo is shipped she is

from Dominica to London, attached while the ship lay cargo and beat Dominica, delivering her outward cargo, and before any part of the homeward cargo was shipped, during which time she was captured by an enemy, the contract of lost. The policy on the affreightment by the charter-party being entire, and the homeward risk on the policy having commenced, and it being tached. impossible to distinguish this case from that of Thompson v. Taylor (supra).

met

freight at

If freight be

insured from

A. B. and C. to D., and the ship be engaged to carry a cargo from A.

to D., the

attach on her

departure from A. to B., but mences only when she sails

the risk com

for D., the

In the Court of Common Pleas, in case of Cellar v. M'Vicar (a), in an insurance on freight on a voyage at and from Demerara, Berbice, and the Windward and Leeward Islands to London; the ship being at Demerara, an agreement (not in writing) was entered into by the to B. and B. master with a house there for a freight from Berbice to London; the cargo to be put on board at Berbice, and the ship to take a cargo of bricks and planks from Demerara to Berbice, and deliver them there; while the vessel was proceeding to Berbice, with this cargo on board, she with an accident, and in consequence never earned her freight. This was held not to be a loss within the policy, for the voyage from Demerara to Berbice had nothing to do with the voyage insured. The voyage insured was from Demerara to London, or from Berbice to London, or from any of the Windward or Leeward Islands, according to the place from which the ship might happen to sail on her voyage to London. Now, in this case, such voyage never commenced the case itself excludes any inception of the Voyage. The ship took in a cargo for Berbice, and then expected to get the cargo she was to carry to London.

the

port of her

destination.

Where freight be paid when was agreed to part of the

voyage was

But subsequently to this, in the same Court, in case of Atty v. Lindo (b), in a policy on freight on board ship Stranger, "at and from London to Jamaica, with liberty to touch at Madeira, and to discharge and take in goods there :" it appeared in evidence, that the plaintiff, as owner, had agreed with one De Franca, by charter-party, voyage finished paid or the that the ship should take in goods at London, and proceed to the ship was

performed; but freight was

before the

lost, as the charter-party treated the

whole as one voyage, the policy on the freight attached.

Madeira, and there deliver such part of the goods shipped at London as the agents of De Franca should direct, and receive on board wine, and proceed to Jamaica, and there deliver and the freighter agreed to pay 135l. in full, for freight, during the whole voyage from London to Madeira, and from thence to Jamaica; such freight to be paid in Madeira, on delivery of the goods shipped at London for that place, by Madeira wine at 40%. per pipe, to be carried in the said ship free of freight. The ship arrived at Madeira, and delivered all her London cargo, except thirty-three casks of coals, which the captain kept on board to stiffen his ship. Part of the cargo for Jamaica was received on board, but not the wine to be paid for freight, when a gale arose, which obliged the captain to cut his cable and run out to sea, where he was captured. The Court unanimously confirmed the verdict of the jury, holding the underwriters liable for a total loss of freight, for the contract of freight was entire, and the charter-party treats the whole as one voyage. The whole freight is to be paid in one gross sum, and that sum is to be paid in Madeira wine, valued at a certain sum at Madeira. The payment, therefore, is local and indivisable; and on payment of the freight in wine, it is to be carried on in this particular ship to Jamaica. Here the accident happened before the condition was performed, on which the freight was payable, namely, the delivery of the goods shipped at London.

In short, the great point in all these cases seems to be, whether there is one entire contract for the voyage out and home, and whether the freight is entire: for the Courts seem to have thought that the doctrine laid down in Thompson v. Taylor, and the other cases of that description, ought not to be extended. But wherever there has been no contract, the rule in the old case of Tonge v. Watts (a) must prevail.

Thus in an action of Forbes and another v. Cowie (b), on

a

Where there is

not an entire

charter-party and homeward voyage, and the

for the outward

ship takes out a cargo to be goods, to be brought home, of the loss a

bartered for

and at the time

part of the out

an open policy on freight of the ship Chiswick at and from any port or ports of Hayti (St. Domingo) to Liverpool: the Chiswick sailed from Liverpool, and arrived at Hayti, with cargo of plaintiff's, which was to be bartered for other goods to be brought back to Liverpool in the ship. Part of the outward cargo was bartered for fifty-five bales of cotton, which were put on board. The remainder of the outward cargo was still on board when the ship was lost by perils of the sea. The remaining part of the outward cargo, though damaged, was saved, and in twelve days after the loss of the ship, was exchanged for other goods the produce of St. Domingo, the freight of which would have been of larger value than the sum insured, if the ship had not been lost. The defendant settled for the freight of the fifty-five only recover bales, without prejudice to a further claim for loss of the of the goods freight of the homeward cargo. This case on the part of the plaintiff was compared to that of Horncastle v. Suart (a), and much pressed. But

Lord Ellenborough was more disposed to doubt the authority of that case than to extend it. There, however, there was one charter-party for the outward and howeward voyage, and the freight was entire. That is the only ground upon which the decision can be sustained. Here, I can entertain no doubt. The underwriter does not insure that the ship shall have a freight, but only that the owner shall be indemnified for the loss of the freight of goods put on board. What goods were on board when the ship was lost? The outward goods. They were not to be brought home on freight: they were to be bartered at St. Domingo. They were the means by which the homeward cargo was to be procured. How then have the plaintiffs been damnified upon the subject-matter of this insurance? By losing the freight of fifty-five bales of cotton, and that they have been already paid by the defendant. The plaintiffs were nonsuited. In the ensuing Term, the Court of King's Bench refused a

(a) Ante, p. 164.

ward cargo, only, is disbartered, the freight, for the

charged and

assured on

homeward

voyage, can

on board.

rule to show cause why this nonsuit should not be set aside. Lord Ellenborough on that occasion said, "if there had been a bag of money on board to purchase a cargo when the loss happened, would this have been freighted; and whether it was possible to draw a distinction between goods to be bartered for a cargo and money to pay for one?" The other Judges concurred and expressed an opinion, that the cases upon this subject ought by no means to receive any extension. The same case of Forbes v. Aspinall, (a) on a valued policy, came before the Court in Hilary Term, 1811, was fully discussed at the Bar, and the Court, by Lord Ellenborough, delivered a very elaborate judgment, conformably to what is said above.

His Lordship says, "To recover in any case upon a policy on freight, it is incumbent on the assured to prove, that unless some of the perils insured against had intervened to prevent it, some freight would have been earned: and where the policy is open, the actual amount of the freight, which would have been so earned, limits the extent of the underwriter's liability. In every action upon such a policy evidence is given, either that the goods were put on board, from the carriage of which freight would result, or that there was some contract under which the shipowner, if the voyage were not stopped by the perils insured against, would have been entitled to demand freight: and in either case, if the policy be open, the sum payable to the shipowner for freight, together with the premiums of insurance and commissions thereon, is the extent to which the underwriters are chargeable. In this case, therefore, as there was no contract under which the shipowner could claim freight, but for the goods actually shipped on the homeward voyage, the assured could have made no claim, had this been an open policy, but to the extent of the actual freight on the fifty-five bales of cotton which were shipped for this country, and of the premiums and commission thereon. The question then is, whether

(a) 13 East, 323.