Bond v. 2 Salk. 445. Waples v. 1243. Case upon a policy of insurance, which was to insure the William galley in a voyage from Bremen to the port of London, warranted to depart with convoy. The case was, the galley set sail from Bremen, under convoy of a Dutch man of war to the Elbe, where they were joined by two other Dutch men of war, and several Dutch and English merchant ships, whence they sailed to the Texel, where they found a squadron of English men of war and an admiral. After a stay of nine weeks, they set sail from the Texel: the galley was separated in a storm, taken by a French privateer, and retaken by a Dutch privateer, and paid eighty pounds salvage. It was ruled by Holt Chief Justice, that the voyage ought to be according to usage, and that their going to the Elbe, though out of the way, was no deviation; for till after the year 1703, (prior to which time this policy was made,) there was no convoy for ships directly from Bremen to London.-Verdict for the plaintiff. 66 The ship Success was insured "at and from Leghorn to the port of London, and till there moored twenty-four hours in "good safety." She arrived the 8th of July at Fresh Wharf and moored, but was the same day served with an order to go back to the Hope, to perform a fourteen days' quarantine. The men upon this deserted her, and on the 12th of the month the captain applied to be excused going back, which petition was adjourned to the twenty-eighth, when the regency ordered her back; and on the thirtieth she went back, performed the quarantine, and then sent up for orders to air the goods; but before she returned, the ship was burnt on the twenty-third of August, and now the question was, whether the insurer was liable? Lord Chief Justice Lee ruled, that though the ship was so long at her moorings, yet she could not be said to be there in good safety, which must mean the opportunity of unloading and discharging; whereas here she was arrested within the twenty-four hours, and the hands having deserted, and the regency taken time to consider the petition, there was no default in the master or owners: and it was proved, that till the fourteen days were expired, no application could be made to air the goods; whereupon the jury found for the plaintiff. So Bilboa to Minett v. The ship Anderson, So where the ship Hercules was insured from Rouen, and till 24 hours moored in safety there. arrived, an embargo having been previously laid on all English vessels in that port. The captain went on shore the day he arrived, and the next day the embargo was laid on his ship. He was afterwards permitted to land his cargo, which he delivered to his consignees, but the ship was detained as a prize, and the captain and crew allowed subsistence as prisoners of war, from the time of their arrival. Lord Kenyon." She was as much within the power of the enemy, as if a guard had been put on board the moment she arrived. She could not be said to be 24 hours, or a minute, moored in safety, so far as relates to these plaintiffs, for immediately on her entering the port, she was to all intents and purposes captured by the French."-Verdict for the plaintiffs. Peake, 211. ton, 15 East, Immediately upon the arrival of a ship at Riga, her papers Horneyer were taken, and hatches sealed down, by order of government, v. Lushingtill her papers could be sent to St. Petersburg to be examined; 46. after which, ship, &c. were condemned for carrying simulated papers, the court held, this vessel could not be said to be moored in good safety, and the underwriters would have been liable; but as the assured carried simulated papers without leave, the assured could not recover. But where a ship had arrived at the wharf, where she intended to unload, on the 12th of January, and was laid on the outside of the tier, there being no room to lay her in the inside; where the sails were unbent, topmasts struck, three anchors out, and she was also lashed to another ship, and so continued till the 19th, when several ships and a quantity of ice drove athwart her stern, forced her adrift, and she was wholly lost: Lord Kenyon was of opinion, that she was completely moored upon the 12th, and as the accident did not happen till above 24 hours after that time, the plaintiff was nonsuited. In an insurance upon freight, if an accident happens to the ship before any goods are put on board, which prevents her from E 4 Angerstein v. Bell, Sitt. at Guildh. after Trin. 1795. Tonge v. 1251. · Montgomery v. Egginton, 362. from sailing, the insured on the policy cannot recover the freight, which he would have begun to earn, if the goods had been shipped. The circumstances of the case were these: The plaintiff insured on ship and freight at and from Jamaica to Bristol. A cargo was ready to put on board; but the ship being careening, in order for the voyage, a sudden tempest arose, and she and many others were lost. The rigging and parts of her were recovered and sold, and the defendant paid into court as much as, upon an average, he was liable to for the loss of the ship: but the plaintiff insisted to be allowed six hundred pounds for the freight the ship would have earned in the voyage, if the accident had not happened. But as the goods were not actually on board, so as to make the plaintiff's right to freight commence; Lord Chief Justice Lee held, he could not be allowed it, and he was nonsuited. But if the policy be a valued policy, and part of the cargo be on board when such accident happens, the rest being ready to be shipped, the insured may recover to the whole amount. This was so decided in an action brought by the assured on policy on freight, valued at fifteen hundred pounds: In fact 3 Term R. only five hundred pounds worth of freight was on board, when the ship was driven from her moorings and lost; but goods to the amount of the rest of the freight were ready to be shipped, and were lying on the quay for that purpose at Thompson v. Taylor, 6 Term R. 478. the time. Lord Kenyon Chief Justice, before whom the cause was tried, told the jury, that the question for their consideration was, whether this was a mere colourable insurance and a gaming policy? or whether it was a bona fide transaction? if the latter, the assured was entitled to recover for the whole value in the policy. The jury found the whole sum. The defendant's counsel obtained a rule for a new trial, which he afterwards abandoned, the Court being strongly of opinion against him. So also in an open policy on freight, at and from London and Teneriffe to any of the West India Islands, (Jamaica excepted,) the underwriters were held liable to pay the insurance, though though the ship sailed from London in ballast, and was captured before her arrival at Teneriffe, where the cargo was to be put on board. But as the ship was under a charter-party to depart out of the river Thames, and proceed to Teneriffe, and there to load and receive on board from the freighters 500 pipes of wine, to be delivered in the West Indies, for the freight of which 500 pipes the freighters covenanted to pay 358. per pipe ; the Court held, that the instant the ship departed from the Thames, the contract for freight had its inception, and the plaintiff was entitled to recover. At the trial, the plaintiff had obtained a verdict, and the case was afterwards brought before the Court upon a motion to enter a nonsuit. After argument at the bar, Lord Kenyon said "When this case came on at nisi prius, I thought the plaintiff was not entitled to recover; because I considered it as similar in every respect to that of Tonge v. Watts, and had it been so, my judgment now would have gone with that case. But this case depends upon its own peculiar circumstances. It is admitted, that if this contract had an inception, that the right to freight then commenced, and the policy attached. Now by the charter-party there was an inception of the contract, by the departure from the Thames; for the covenant in the charter-party 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. Egginton, 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 Forbes and another v. Cowie, Sit tings after Michaelmas 1808, I Camph. 520. 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 (ante p. 56.) must prevail. Thus in an action on a 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 a 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 55 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 12 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 55 bales, without prejudice to a further claim for loss of the freight of the homeward cargo. This case on the part of the plaintiff was compared to that of Horncastle v. Suart (ante p. 58.) 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 homeward 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 plaintiff's been damnified upon the subject-matter of this insurance? By losing the freight of 55 bales of cotton, and that they have been already paid by the defendant. The plaintiffs were nonsuited. |