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this being the usage of the trade at that

continues.

ship's arrival; the ships, till they should be arrived at their port of discharge, and should have moored at anchor twenty-four hours, and on place, the risk the goods until the same shall be there discharged, and safely landed. By a clause in the policy, money advanced to the fishermen was insured. The Anne arrived safe on the coast of Labrador on the 22nd of June, and the Hope on the 14th of July, 1778. From the time of their arrival, the crews were employed in fishing, and had taken out none of their cargoes, except at leisure hours, (partly on Sundays), such things as were immediately wanted. On the 13th of August, an American privateer entered the harbour, and took both the vessels, there being at that time nobody on board either of them. The action was brought to recover the value of the goods. The defence was, that there had been an unnecessary delay in unloading the cargoes, in consequence of which they had been exposed to capture, and that the underwriters ought not to be liable for what had happened from the negligence of the insured. The plaintiffs rested their case on the words of the policy, and the usage of the trade. They called the captain of the Anne, who swore that he had been the same voyage three times in the three last years, and that they had proceeded in the same manner during each of the voyages; that he did not think the plaintiffs had warehouses sufficient to have held the goods if they had been landed; and that there were no settlements on the coast of Labrador, but those belonging to the plaintiffs. One of the sailors swore to the same effect. The plaintiffs then called one French, to prove the custom of the Newfoundland trade. This evidence was objected to; but Lord Mansfield admitted it, and the witness swore, that in the Newfoundland trade it is customary to keep their goods on board several months, and that sometimes they have part of their homeward cargo of fish, and part of their old cargo on board, at the same time. That the first object is to catch fish, and they unload only at times when they cannot fish. The old cargo being chiefly salt and provisions, it is taken out gradually for curing the fish, and for consumption. The testimony of this witness

was confirmed by one Newman. Neither Newman nor French had been at Labrador. Mr. Hunter was then called, who proved, that some years since he used to send vessels of his own, and also chartered vessels, to Labrador, and that it was usual, in chartering vessels, to stipulate that they should have sixty days allowed for discharging. That he apprehended they were oftentimes longer in fact, and that it was not so easy to discharge a cargo at Labrador as at Newfoundland. Upon this evidence a verdict was found for the plaintiffs, and in the subsequent Term the defendant moved to set it aside, which was not granted.

Lord Mansfield." The trade of fishing on the coast of Newfoundland, especially from the west of England, has been known and practiced for many years. Since the treaty of Paris, a new trade has been opened to Labrador. The insurance here is on the ships, and on the goods till landed. The defendant says, the plaintiffs have been guilty of an unreasonable delay in landing. That question was to be tried by the jury, and could only be decided by knowing the usual practice of the trade. Every underwriter is presumed to be acquainted with the practice of the trade he insures, and that whether it is recently established or not. If he does not know it, he ought to inform himself. It is no matter if the usage has been only for a year. This trade has existed, and has been conducted in the same manner for three years. It is well known that the fishery is the object of the voyage, and the same sort of fishing is carried on in the same way at Newfoundland. I still think the evidence on that subject was properly admitted, to shew the nature of the trade. The point is not analogous to a common law custom."

Every underwriter is preacquainted with the practice of the

sumed to be

trade he insures, and that

whether it is

recently established or not.

A policy on a from Newship" at and

So in a case of Ougier v. Jennings, (a) before Lord Eldon, when Chief Justice of the Common Pleas, his Lordship allowed the usage of trade to protect an intermediate voyage to Sidney from Newfoundland in ballast, and back with a tugal" is not

Irving, 8 Scott, N. R. 3; and ante,

(a) Sit. in C. P. 1800, 1 Camp. 505, note (u); and see Phillips v.

p 117, and post.

foundland to a

port in Por

voided by the ship's making an intermediate

voyage be.

tween the out

ward and homeward voyage-this

being the usage of that trade.

Evidence of the practice of the trade is to

be received:

and the under

to know it.

cargo of coals, upon an insurance on fish on the ship Duchess of Gordon at and from Newfoundland to a port in Portugal. The ship had arrived at Newfoundland in July, she then proceeded to Sidney for coals, arrived there in August, and delivered her coals at Newfoundland in October; she then loaded her fish, and sailed for Oporto in November, and was lost. The underwriters insisted that the trip to Sidney should have been communicated to the underwriters, as it tended, by retarding the commencement of the voyage insured, to increase the risk. The plaintiff relied on the usage of trade, which was proved by several witnesses.

Lord Eldon. "I think the practice in this case is as capable of being received, as in other cases, in which it has been admitted. This is like the case of the ship that was writer is bound employed on the Labrador coast, where she fished after her arrival, and before her outward cargo was discharged. There is no doubt that the policy prima facie means the first cargo, which shall be laden after the ship's arrival: but the underwriter must refer himself to the usage of the trade, which he is bound to know. The first question is, whether there be such an usage? If the evidence leads to this, that the ship may make an intermediate voyage of several years, it is too dangerous for you (the jury) to give it effect. If several ships belonging to a merchant arrive together at Newfound land, and finding cargoes for some only, he bona fide sends the rest on an intermediate voyage, it seems reasonable; though studiously sending a ship on an intermediate voyage out of her turn would be a deviation. If you think the usage does exist if you think it reasonable; and if you think this ship acted bona fide in taking the intermediate voyage, you will find for the plaintiff." The jury did so, and the verdict was not impeached.

In an insur

So in the case of Vallance v. Dewar, (a) where Lord ance "at and Ellenborough held, that in a common insurance on ship, freight, and cargo, at and from any port or ports in Newfound

from New

foundland to

(a) 1 Camp. 503.

land, to one port of discharge in Portugal, or to any port or

a port in Portugal," it is not necessary to

disclose to the

will commence

only from the end of the banking expedition, for they

are bound to

know the

voyage to which the

nature of the

policy relates.

ports in the United Kingdom, it is not necessary to communicate to the underwriters, that before that risk commences, underwriters the vessel will be employed either in fishing, (called banking,) that the ship or in an intermediate voyage, for the usage of that particular ployed in "banking" and trade covers it, and the underwriters are bound to know the that the risk nature and circumstances of the trade, to which their policy relates. His Lordship added, the assured is not bound to make a laborious disclosure of what is known to all. It is notorious that in this trade, upon their arrival, ships are either employed in banking, or take an intermediate voyage. If so, it must be presumed to be equally in the knowledge of both parties. According to the general import of the words "at and from," the policy would attach upon the ship's first mooring on the coast; but it may doubtless be explained differently by usage: and as between these parties the policy must be taken to be the same, as if it had been expressed to attach upon the expiration of the banking or intermediate voyage. The underwriters were not liable for any antecedent loss, and cannot complain of what was previously done as a deviation. Although there should be exceptions to the usage, that would be immaterial. Things are presumed to go on in their ordinary course; and if an usage be general, though not uniform, the underwriters are bound to take notice of it.

So the same learned Judge, in the case of Kingston v. Knobbs, (a) held, on an insurance from Oporto to London, where the ship having taken in part of her cargo within, went to take the remainder without the bar; and where several witnesses proved that it had been usual to do so, that the underwriters were bound of themselves to take notice of the usage; although it appeared that sometimes in policies, express liberty was given to load on either side of the bar.

(a) 1 Camp. 508, in notis.

SECTION VII.

Liberty to
"touch" and

"stay" in the

course of the voyage.

IT SHALL BE LAWFUL FOR THE SHIP, ETC., TO TOUCH AND

STAY, ETC.

The head of this section includes the words for making "it lawful for the said ship, &c., in this voyage, to proceed and sail to, and touch and stay at any ports or places whatsoeverwithout prejudice to this insurance."

This liberty to touch and stay at different parts in the voyage insured is always inserted in the printed policies, and generally made use of by the assured's filling up the blank space as it suits them. This clause has always been used with the greatest effect in voyages to the East Indies, and China, round the Capes, and to the islands in the West Indies, as well as to the continents of America; and some care and precision is requisite that the object of the voyage is well attained, by the terms adopted in this part of the policy by the assured: the truth of which we shall have to shew in many cases in which this clause has come in question. Previous, however, to our giving our consideration to the many recent decisions which have taken place in our Courts of law upon this clause, after it has, by the great increase and extension of commerce and navigation, been almost constantly used in insurances on the long and important voyages to all parts of the globe, it will be advisable for us to turn our attention, in the first place, to the earlier decisions, which have laid the foundations of the law upon this subject, on which the recent cases in a great degree depend; and which legal decisions arose out of the immense trading and commercial enterprise which followed the acquisition of our now extensive territories in the East, and in the foundation of the government of the East India Company there. And I shall quote the words of that learned author, the late Mr. J. Park, who, of all others, had the best opportunity of observing the

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