lighters or boats going aboard previous to the voyage; yet as the policy says, the risk shall continue till the goods are safely landed, it seems no less obvious, that where ships cannot come close to the quay in order to unload, the insurer continues responsible for the risk to be run in carrying the goods in boats to the shore. If there be a loss, however,in these cases, the accident must have happened while the goods were in the boats or lighters belonging to the ship; for then it is considered as a continuance of the same ship and voyage. But in a case where the owner of the goods brought down his Sparrow v. own lighter, received the goods out of the ship, and before Carruthers, they reached land, an accident happened, whereby the goods 1236. were damaged, a special jury of merchants, under the express direction of Lord Chief Justice Lee, found that the insurer was discharged, although the insurance was upon goods to London, and till the same shall be safely landed there.

In a late case in the Court of Common Pleas, that of Sparrow v. Carruthers, appeared to be considerably shaken (a.) The policy was in the usual form, "from Petersburg to London, "on goods till they should be there discharged and safely landed." The cause was tried before Lord Eldon, Chief Justice, when it appeared that the ship and goods arrived in safety in the river Thames. That the plaintiffs being the consignees of the

(4) In a still later case, Strong v. Natally, 1 New Rep. 16., Mr. Justice Rooke, one of the learned Judges, who decided that of Hurry v. The Royal Exchange Company, denied that the Court intended to shake the authority of Sparrow v. Carruthers; but to decide it upon its own circumstances, and the case of Strong v. Natally was decided upon the authority of Sparrow v. Carruthers, as not distinguishable from it. In this latter case, on the arrival of the goods insured, they were put on board a lighter hired in the usual way, and brought to a wharf belonging to the plaintiff' in the afternoon, but in consequence of the roughness of the weather could not be landed that evening. The lighterman finding he could not land the goods, asked the plaintiff whether he (the lighterman) should stay to see the cargo landed. The plaintiff said he need not do so, for that he would see to the landing himself. Accordingly the lighterman left the cargo alongside the wharf. In the course of the night, the lighter was sunk by unavoidable accident, and the goods were lost.

The Court held that the underwriters were discharged, the plaintiff' having taken the goods into his own possession before they were landed, having the complete controul over them, and renounced all benefit under the policy.

2 Stra.

Hurry and others v. The Royal Exch. AsSurance,

2 Bos. &

Pull. 430.

goods

goods by their broker, employed and paid a lighterman belonging to one of the public lighters, entered at Waterman's Hall, to land the cargo, which was damaged on board the lighter, but without any negligence imputable to the lighterman; that it is the constant practice for merchants in the Russian trade to land their goods by means of lighters; and that there are no other lighters now in use among the merchants but the public lighters. A verdict was given for the plaintiffs, with liberty to the defendants to move for leave to enter a nonsuit, upon the ground that the insurers were discharged by the delivery of the cargo to the lighters employed and paid for by the plaintiffs.

The case was argued, and the three learned Judges of that court (Heath, Rooke, and Chambre, Justices) were of opinion, that the insurers were not discharged. In giving their opinions they relied upon the words of the policy and the usage of trade, it being impossible for large vessels to come up to the wharfs to deliver their goods; and these lighters are public lighters, publicly registered, and equally known both to the underwriters and owners of the goods. All the judges expressly said, they did not wish to interfere with the case of Sparrow v. Carruthers, but they relied upon the distinction between public and private lighters, a distinction which, it seems, had been previously taken at Nisi Prius, in a case of See this case Rucker v. The London Assurance Company, by the late very learned Mr. Justice Buller, and which distinction had never been questioned by any appeal to the court against that Judge's opinion.

in 2 Bos.

& Pull.

432. note (a).

Lord Eldon having been promoted to the office of Lord High Chancellor, was not present when this case was decided; but having been counsel in the cause at the trial, I ought to state that His Lordship at that time appeared to me to entertain the same sentiments with those of the learned Judges who ultimately decided it. (a)

By

(a) In an insurance on goods on board a Spanish ship from Nassau to Campeachy, and back, till discharged and safely landed, and the ship having a licence from the British government at Nassau, and having sailed to Campeachy, and having arrived off that port made signals for launches to

ch. 2.

By the ordinances last referred to, the number of days, in See post, which people are obliged to unload their goods, is stipulated; Noble v. but in England no express time is fixed, the owners being left Kenoway. to their own discretion, provided there is no unreasonable delay, which must always depend upon circumstances.

The risk on the body of a ship, according to the form of 1 Magens, the policy received in practice, is to commence in general 47"at and from and so shall continue and

"endure until the said ship shall arrive at

"and hath there been moored at anchor twenty-four hours in good safety."

When insurance is made indeed on the homeward risk, the beginning of the adventure is sometimes stated to be "imme"diately from and after her arrival at the port abroad:" at other times," from the departure;" and in short, it is so variable, that nothing certain can be said upon the point, depending as it always has, and always must, upon the inclinations of the insured, as expressed in the contract.

Sixthly, Of the various perils and risks, against which the underwriter insures. These must always be inserted in all policies, and indeed the words now used are so comprehensive, that in the opinion of Molloy, all those curious questions, Book 2. which occasioned much debate and controversy among the c. 7. s. 7. lawyers of former days, are now finally settled. Be this as it may, it is certain, that there is hardly any event which the imagination can form, as likely, in the common course of things to happen to any ship, that is not amply provided for by the policies now used by underwriters. They undertake to bear" all perils of the seas, men of war, fire, enemies, See the "pirates, rovers, thieves, jettisons, letters of mart, and counAppendix. ❝ter mart, surprisals, takings at sea, arrests, restraints, and "detainments of all kings, princes, and people, of what na<tion, condition, or quality soever; barratry of the master "and mariners, and all other perils, losses, and misfortunes,

come out, into which the goods were put for the purpose of being run a ashore: The Court thought the goods were protected by the policy while on board the launches, such being the usual method of carrying on that trade. Matthie v. Potts, 3 Bos. & Pull. 23.

"that

1 Magens,

50.

Malyne,

C. 25. Lex

Merc. Red.

4th edit. p. 295.

7 Geo. 2. C. 15.

66

"that have or shall come to the hurt, detriment, or da-
mage of the said goods and merchandizes, and ship, or any
"part thereof (a)." But although the words, descriptive of
the hazards run by the insurers, be so very large and com-
prehensive, it should seem that a great difference is to be
made between the damage sustained by goods from injuries on
board a ship, and that which occurs by external accidents;
that the insurer is liable in the latter case cannot admit of a
doubt, but as the former may proceed from the bad stowage of
the goods, or from their being exposed to wet; and as they
are neglects attributable to the master; the ship, and not the
insurer, ought to be answerable. Upon this point, however,
I find no case in the reports, and therefore I merely state
what I conceive to be understood as the law upon the subject.
In Malyne it is said, that if there be thieves on ship-board
among themselves, the master of the ship is to answer for
that, and to make it good, so that the insurers are not to be
charged with any such loss, for he supposes the word "thieves"
to mean assailing thieves only, for so he terms them. It is
certain, that a modern statute gives some countenance to this
idea, by the preamble to which it appears, that previous to
the period of passing that act, the owners of the ship were
liable to the proprietors of the goods for any embezzlement,
secreting or making away with, of the goods, by the master
or the mariners, or with their privity, to whatever amount the
value might be: by that statute, however, the measure of the
responsibility is to be the value of the ship and freight (b).
To be sure, it is not a necessary consequence, that because
the owner is liable in such a case, therefore the insurer, if an
insurance has been made, must be discharged, especially as
the underwriter expressly undertakes, by the terms of the po-
licy, to answer for the barratry of the master and mariners.

(a) It has been held that a loss arising from rats eating holes in the bottom of the ship is not within any of these perils enumerated in the text. Hunter v. Potts, 4 Campb. 203. So of a ship destroyed by worms it is not a loss by perils of the sea. Rhol v. Parr. See post. (b) By a subsequent statute, 26 Geo. 3. c. 86. the owner's responsibility is limited to the value of the ship and freight, even in cases of external robbery, without the privity of the masters or mariners, and by the ad section, owners are wholly exempted from any loss occasioned by fire.

assecura

tionibus, Not. 42.`

Roccus, however, is of opinion, that when a theft is com- Roccus de mitted on board the ship, and some goods have been stolen, then the insurers are not bound, because the owner of the goods, as much as in him lies, is obliged to take care of them; and if they are stolen, while in the vessel, this cannot be called an accident, but has happened through the negligence of those, who did not take proper care of them. He adds, that the master or owners being liable, is an additional reason for this regulation, because the master of the ship is held answerable for thefts committed therein, as by receiving the goods on board, he enters into a tacit agreement to deliver them safe and whole. It was thought proper thus to state the opinion of this learned writer upon the subject, the law of England in this respect being silent; though his reasoning upon this subject is by no means conclusive as to English insurances, on account of the express terms of the

contract.

But that the underwriter is liable for a robbery of the goods insured, when committed by thieves from without, cannot be doubted; as thieves are a peril expressly insured by the policy. (a)

Harford v. bef. Lord Maynard, Mansfield at Guildhall, Hil. Vac.

1785.

Molloy, b.z.

c. 7. S. 5.

In addition to the various risks above enumerated, which the underwriters take upon themselves, it is the general practice, to insure lost or not lost, which is certainly very hazardous; because if the ship or goods should be lost at the time of the insurance, still the underwriter, provided there be no fraud, is liable. The premium is, however, in proportion, depending upon the circumstances stated to shew the probability or improbability of the ship's safety. These words Roccus, "lost or not lost," are peculiar to English policies, not being 5 Burr inserted in the policies of foreign nations.

There is one case, in which, by act of parliament, the underwriters are prevented from paying upon certain of the risks mentioned in the printed policies, and that is in insurances

(a) [It has been said that the conveying prisoners of war in the vessel insured does not necessarily increase the risk. Toulmin v. Anderson, 1 Taunt. 227.]

VOL. I.

D

upon

No. 51.

2803.