the terms of the policy. So, if a policy be declared as a continuation of former policies, goods previously loaded will be covered by it. Where the the Custom-house officers at Landscrona to examine the whole cargo on board, the duties on which were paid. The Court held this to be an actual unloading and reloading a part, and virtual reloading of the whole, as far as unloading and reloading were necessary for the purpose of ascertaining and paying the duties at that port, which according to the policy is to be regarded as the loading port. So, also, in the case of Bell v. Hobson (a), where a policy was on goods at and from Gottenburg, to take in and discharge goods wherever the ship may touch at, declared it to be in continuation of former policies. The defendant was not an underwriter on the former policies, and the goods insured were in fact loaded at Virginia; the Court thought this memorandum indicated that the prior loading was in the contemplation of the parties. And in the case of Gladstone v. Clay (b), where the word policy was be-wheresoever" was added thus, beginning the adventure upon ginning the adventure upon the said goods from the loading thereof on board wheresoever, the said goods the Court thought this word sufficient to cover the loading wheresoever it should take place, and to draw the case out of the construction put on former cases, and, therefore, where goods were insured "at and from Pernambuco to Maranham, and at and from thence to Liverpool from the loading thereof on board the said ship, wheresoever, &c." the goods were loaded at Liverpool to be delivered and sold at Pernambuco, and the ship was to be sent back to London and the goods were sold at Pernambuco, except twenty-six cases, which were sent in the same ship to be disposed of at Maranham, together with other goods to be carried to Maranham and thence to Liverpool on the plaintiff's account: the twenty-six cases were not unloaded but remained on board till the loss which happened between Pernambuco and Maranham: it was held that the policy covered the twenty-six cases. from the load ing thereof on board wheresoever, it was held to cover the loading wheresoever it took place. But where the assured have by the express terms which they have used in the policy confined the risk to the goods "from the loading thereof" at a particular place, still, although there may be reason to believe that the intention of the assured was to protect the goods actually on board at the time of the loss, whether belonging to the outward as well as the homeward voyage, the Court will not feel itself at liberty to give effect to their intention, but in the construction of the policy it will be guided by the express terms they have used. On a valued policy on goods at and from Africa, to the ship's port of discharge in the United King the coast of dom. "Be ginning the adventure" from aboard the said the loading ship" twentyfour hours after the coast of Africa." The her arrival on ship went on a voyage, held did not protect And therefore, in the case of Rickman v. Carstairs (a), where a ship was bound on a bartering expedition, and an insurance was made on goods "beginning the adventure from the loading thereof on board the said ship twenty-four hours after her arrival on the coast of Africa," and a loss took place when a portion of the goods of the outward voyage was on board and a considerable portion of the homeward not shipped at the time, it was held that the policy did not cover that portion of the goods of the outward voyage on board at the time, notwithstanding by a memorandum annexed to the policy the insurance was declared to be on the cargo valued at a certain sum, and that the part bartering of the outward cargo then remaining on board, together that the policy with the portion already shipped, made up the valuation the part of the in the policy, and that the policy was to be opened and the assured was to recover only a proportion of the value estimated on the part of the homeward cargo shipped at the time. And Lord Denman, C. J., delivering the judgment of the Court said, "In this case it is with regret we find ourselves obliged to come to the conclusion that the plaintiffs are not entitled to recover for a total loss; because it appears very likely that the assured intended by this policy to insure both the outward and the homeward cargo, and to have time of the loss valued both; inasmuch as a great part of the outward cargo that value; would, in such a voyage remain on board, and would be policy was to continually varying in the course of barter, and nothing be opened; is more probable than that the entire cargo should be valued, to recover only (a) 5 B. & Ad. 651. outward cargo on board at the time, though randum the by a memo goods were certain price, and the goods shipped toge valued at a ther with the part of the outward cargo on board at the amounted to and that the and the assured a proportion of to prevent difficulty of valuation, in the case of a loss. the value esti mated on the part of the homeward cargo on board at the time. Unfortunately, however, they have used words, which by which the Court can be convinced that it was intended to "The only circumstance which can have this effect, is the memorandum, which declares the insurance to be on the cargo valued at 48007.' and it occurred at one time to a part of the Court that this raised a presumption that the parties contemplated such a cargo to be the substance of the insurance as was capable of being valued at the full amount insured when the policy attached, i. e. when the ship had arrived twenty-four hours on the coast of Africa, and that the entire cargo, consisting of outward and homeward goods, would alone answer that description. If this were clearly the meaning of the clause we agree that we might reject or qualify the words 'from the loading thereof on board the ship,' as we certainly might have done, if it had been said expressly in the memorandum, that the insurance (a) 4 East, 130. (c) 4 Taunt. 628. (d) As in Bell v. Hobson, 16 East, 260, and Gladstone v. Clay, 1 M, & S. 418. was on the cargo both outward and homeward, valued at 48001. But the difficulty is to make out that this is the meaning of the memorandum in question. Suppose the words of the memorandum had been on the homeward cargo' valued at the same sum, would there have been any inconsistency in making such a valuation, and would the fact therefore of making such a valuation enable the Court to say that the word homeward must be rejected, and the insurance applied to the whole of the goods on board? Or suppose that in the earlier part of the policy, the insurance had been upon any kind of goods and merchandizes, laden on board, after twenty-four hours after arrival on the coast of Africa,' would the valuation by the memorandum in any way have qualified or varied the subject of insurance? If it would not, neither can it in the present case; for the declaration in the policy, that the adventure is to begin 'from the loading thereof on board twenty-four hours after such arrival' is in effect the same thing, and confines the insurance to the homeward cargo." There is a class of cases which may properly enough be mentioned in this place, which establish a well-known principle in the law of marine insurance, and which we shall have to consider further in the next section, viz., that the Courts of Law have always, in putting a construction upon policies, been guided by the custom and usage of trade. There is one case, which has already been referred to, of this description, viz., the case of Pelly v. Royal Exchange Assurance Company (a), in which it was decided by Lord Mansfield, that where the rigging and tackle of a ship were put on shore, during a repair, in a Chinese voyage, in the usual course of that voyage, and were burnt by accident, the underwriters were held liable. The reader is referred to Lord Mansfield's judgment, quoted at length in the former part of this Treatise (a). In another instance, of Lethulier's case (b), which was an (a) 1 Burr. 341, ante, p. 137. (b) 2 Salkeld, 443; and see Warwick v. Scott, 4 Camp. 62. A ship may go to the general convoy at the hazard of the underwriters. action on a policy of insurance, underwrote by the defendant at London, by which a ship was insured from thence to the East Indies, warranted to depart with convoy, the declaration showed that the ship went from London to the Downs, and from thence with convoy, and was lost. After a frivolous plea and demurrer, the case stood upon the declaration, and it was objected that there was not a departure without convoy. But, by the Court, the clause, " warranted to depart with convoy," must be construed according to the usage among merchants, that is, from such place as convoys are to be had, as the Downs. In this case Lord Chief Justice Holt differed from the rest of the Court; the late Mr. J. Park, however, says, that his Lordship's opinion is certainly contradicted by practice, it being almost the invariable custom for the convoy to meet the merchant ships only in the Downs (a). In the cases of Gordon v. Morley, and Campbell v. Bordieu (b), on an insurance from London to Gibraltar, warranted to depart with convoy, it appeared that there was a convoy appointed for that trade at Spithead, and the ship Ranger, having tried for convoy in the Downs, proceeded to Spithead, and was taken in her way thither. The assurers insisted that this being the time of a French war, the ship should not have ventured through the Channel, but have waited in the Downs for an occasional convoy; and many merchants and officekeepers were examined to that purpose. But the Chief Justice held, that the ship was to be considered as under the defendant's insurance, as going to a place of general rendezvous; and if the parties meant to vary the insurance from what is commonly understood, they should have particularized her departure with convoy from the Downs. The juries were composed of merchants, and in both cases found for the plaintiffs, upon the strength of this direction. So in the case of Bond v. Gonzales (c), which was an action upon a policy of insurance, which was to insure the William galley, in a voyage from Bremen to the port of London, war (Park Ins $9. 2 Strange, 1265. (c) 2 Salk. 445. |