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The assured cannot aban

don on account

of the port of destination being shut against the ships of the

nation to which the ship in

case on the subject, is deserving of being mentioned. It was an action on a policy of insurance on pilchards, on board the Paxora, at and from Mount's Bay, in Cornwall, to Naples, with leave to join the convoy at Naples or elsewhere. The policy contained the usual memorandum, exempting the underwriter from average losses on fish, &c., unless general, sured belongs. or the ship be stranded. The declaration stated the loss to be," that after the loading of the said pilchards on board, &c. the said ship or vessel with the pilchards, &c., &c., departed and set sail from the said port of Penzance aforesaid, on her said intended voyage in the said writing and policy of insurance mentioned, and afterwards, and whilst the said ship was so sailing and proceeding on her said voyage, and before her arrival at Naples, to wit, on, &c., the port of Naples, aforesaid, was, by the persons exercising the powers of government in the kingdom of Naples, shut against all ships the property of any of the subjects of our Lord the King, or sailing under the colours of our Lord the King, and against all merchandise, the property of any such subjects, carried in such ships, under the pain of such ships and merchandise being confiscated by the persons exercising the powers of government in the kingdom of Naples, whereby the said ship, with the said pilchards on board, (the said ship being then and there the property of subjects of our Lord the now King, and sailing under the colours of our Lord the now King, and the pilchards being then and there the property of the plaintiff, who was then and there a subject of our Lord the now King), was then and there prevented from pursuing her voyage to Naples aforesaid, and the voyage was thereby then and there wholly defeated and lost, and the pilchards then and there became of no value to the plaintiff." At the trial before Lord Alvanley, it appeared, amongst the other facts, that after this vessel sailed from Lisbon, in the prosecution of her voyage, she received intelligence that English vessels were excluded from all the ports of Naples; and that afterwards the commander of the convoy ordered that all vessels destined for Naples or Sicily were to proceed to Port Mahon,

where the report respecting the state of the ports of Naples was confirmed. That in consequence of this a survey of the cargo was taken, under the direction of the Vice-Admiralty Court of Minorca, and sold there for a small sum of money. The assured abandoned to the underwriters, who refused to accept it. The jury found a verdict for the underwriters, to set aside which a motion was made in the following Term. After argument at the Bar and time taken to deliberate,

Lord Alvanley delivered the judgment of the Court, confirming the verdict of the jury. His Lordship said,-" The question is, whether the circumstances which have happened amount to a total loss within the policy? The policy includes capture and detention of princes; and any loss which necessarily arises from such acts is a loss within the policy. But it has appeared to me that, where underwriters have insured against capture and restraint of princes, and the captain learning that, if he enter the port of his destination, the vessel will be lost by confiscation, avoids that port, whereby the object of the voyage is defeated, such circumstances do not amount to a peril operating to the destruction of the thing insured. If they could, the same principle would have applied in case information had been received at Falmouth that the ship could not safely proceed to Naples. In Goss v. Withers, Hamilton v. Mendes, and Milles v. Fletcher, the principles by which a total loss is to be ascertained are clearly laid down. It is there said, 'That, if the voyage be lost or not worth pursuing, if the salvage be high, if further expense be necessary, if the insurer will not at all events undertake to bear that expense, &c., the insured may abandon, notwithstanding a recapture.' But the doctrine thus laid down is only applicable to cases in which the loss is occasioned by a peril insured against, which, as it appears to me, must be a peril acting upon the subject immediately, and not circuitously, as in the present case. Without entering, therefore, into the question which has arisen in another case (a), I think that the detention of the cargo on board the (a) See Dyson v. Rowcroft, post, Taylor, 9 B. & C. 718, ante, p. 393. 3 B. & P. 474; and see Naylor v.

ship in a neutral port, in consequence of the danger of entering the port of destination, cannot create a total loss within the meaning of the policy, because it does not arise from a peril insured against. This is an insurance upon an article from England to Naples, warranted free from particular average. The plaintiff, therefore, cannot recover, unless the article be totally lost by a peril within the policy, and such peril must, as I think, act directly and not collaterally upon the thing insured. I much doubt whether, if a verdict had been found for the plaintiff, judgment might not have been arrested. With respect to the case of Manning v. Newnham, it may be observed that Lord Mansfield expressly decides it upon the ground of the voyage being lost by one of the perils insured against, namely, by tempestuous weather. The words of Lord Kenyon, in the case of M'Andrews v. Vaughan, in which he lays down, that the insured may recover for a total loss, if the voyage be lost, must be taken with reference to the case before him, in which the injury arose from capture. The case of Cocking v. Fraser (a) is an extremely strong authority to show that, if the article insured (being one of those mentioned in the memorandum) remain in specie, the assured cannot recover, though it be rendered totally useless, and never reach the port of destination. But that case did not involve the question on which this case turns, namely, whether the loss was occasioned by a risk within the policy. Here, without entering into the question how far the cargo was totally lost, the claim made by the assured arises from the ship not proceeding to that port to which she was destined. Had she proceeded to Naples, the loss insured against might have arisen. If we were to decide that the sale at Port Mahon was a total loss within the policy, it would afford to owners insuring cargoes of the description specified in the memorandum the opportunity of creating imaginary dangers whenever the cargo was not likely to reach the port of destination in a sound state, and by giving notice

(a) R. R. 25 Geo. 3. Park Ins. 247, post.

of abandonment to throw a loss upon the underwriters, to which they are not liable by the terms of the policy. We are of opinion the verdict was right" (a).

goods on board

learning in the course of her embargo is

foreign port,

voyage that an there laid on

all ships of her nation, wait at

a place as near as she safely

can till the embargo is removed, the

goods will in
the meantime
be protected by
the policy. But
if she might
have done so,
but instead
back again
for her port of
outfit, and is

thereof sails

A decision, upon similar principles, was made by Lord If a ship with Ellenborough, in the following case of Blanckenhagen v. insured to a London Assurance Company (b). The insurance was on goods on the ship William, at and from London to Revel. The ship sailed from the Nore, under convoy of the Forrester sloop of war, for the Sound, and arrived there on the 27th October, 1807. The ship proceeded from thence towards Revel, on the 15th of November, under convoy of the Garnett sloop of war. On the 17th of November, whilst the ship was proceeding on her voyage with the convoy, it became known to the convoy that an embargo was laid on all British ships in Russian ports; and in consequence thereof, the ship, under the orders of the convoy, returned to Copenhagen roads on the 18th of the same month. The ship William, together with the convoy, afterwards proceeded to lay off Gottenburgh, a Swedish port, for six days; and the ship insured might have gone into that port, if the captain be considered had so thought fit, Sweden being then at war with Russia, as having abanbut in amity with this kingdom. The ship sailed from off voyage insured, Gottenburgh, the 30th of November, 1807, with the Garnett writers will be and fleet for England, with the additional convoy of the discharged. Spitfire sloop of war. The ship William was last seen on the 3rd of December, 1807, distant ten leagues from the Naze of Norway, when the sea ran high, and not having been since heard of, she was admitted to be lost. Hostilities between this country and Russia commenced on the 18th of December, and between this country and Denmark in the preceding September.

(a) See, however, the case of Barker v. Blakes, 9 East, 283; and see the cases of Lubbock v. Rowcroft, 5 Esp. 50. Parkin v. Tunno, 11 East, 22. Forster v. Christie, 11 East, 25, where the Court held, that on the authority of Hadkinson

E E

v. Robinson, where a loss was at-
tributable merely to the fear of a
hostile embargo at the port of des-
tination, this was not a loss by the
arrest or detention of kings.

(b) Sitt. before Mich. 1 Camp.

454.

lost, she will

doned the

and the under

Lord Ellenborough told the jury that this was a contract for the voyage out, and that although a ship from necessity might be allowed to take a circuitous course, yet the ultimate point of destination must ever be the same. That such a necessity might, perhaps, even justify a return to England, if it could be proved satisfactorily that it was the intention of the parties to seize the first favourable opportunity of returning to Revel. No such evidence appears in the present case. Neither does it appear that the convoy compelled the return to England: for, although the first part of the case states that the return to Copenhagen roads was under the orders of convoy, the return to England is not averred to be under such compulsion; I must, therefore, take this to be a voluntary abandonment of the voyage. At all events, even if there had been an intention to return to Revel, war intervened before such an intention could be executed, and that would put an end to the contract. The plaintiff was non

suited.

Another action, Brown v. Vigne (a), was brought in the Common Pleas on this policy, and Sir James Mansfield, then Chief Justice, concurred with Lord Ellenborough; and his judgment was afterwards confirmed by the whole Court. And where a ship was insured to her last port of discharge, in the river Plata, and the master, hearing that Buenos Ayres, where he meant to discharge his cargo, was in the hands of the enemy, went to Monte Video, and began to discharge the cargo there; this was held to be her last port of discharge, and therefore the underwriters were not liable for a loss, after the vessel had been moored twenty-four hours.

And in a case of Doyle v. Powell (b), in which goods and freight were insured "at and from Liverpool to Monte Video and Buenos Ayres, if open, or the ship's final port of discharge in the river Plata, with liberty to wait two months at Monte Video, if needful, at a premium of five guineas per

(a) 12 East, 283. See Naylor v. Taylor, 9 B. & C. 716; ante, p. 393.

(b) 4 B. & Ad. 267.

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