But although the judges have been thus liberal in their constructions of this contract, and have gone as far as possible to effectuate the intention of the parties; yet they have never extended those equitable principles to such a length as to say, that when a man has insured one species of property, he shall recover damage which he has suffered by the loss of a description of property different from that named in the policy. Thus a man, who has insured a cargo of goods, cannot recover under such a policy, the freight which he has paid for the carriage of that cargo; nor shall it be permitted to an owner of a ship, who insures the ship merely, to demand satisfaction for the loss of merchandize laden thereon, or to ask. from the insurers extraordinary wages paid to the seamen, or the value of provisions consumed, by reason of the detention of the ship at any port longer than was expected.

c. 7. s. 8.

Such attempts have, indeed, been made, but they have always been resisted; for to admit of such demands would introduce an infinite variety of frauds, and would be repugnant to the most settled maxims of insurance law, and to the constant practice and usage of trade. In Molloy it is said, that Molloy, b. 2. if a merchant insure a ship generally, and the ship then happen to be laden, and if it afterwards miscarry, the insurer shall not answer for the goods, but only for the ship. This position stands uncontradicted by any foreign writer ancient or modern, and is supported by several decisions of the first authority in this country.

In an insurance upon the ship Tartar at and from London to Newcastle and Marseilles, and at and from Marseilles to her discharging port or ports in the West Indies, (Jamaica excepted,) the facts were, that the ship being distressed bore away for Minorca, and put into Port Mahon, where the captain obtained leave from the Vice-admiralty Court to have his ship surveyed, in consequence of which, she was long detained; and the action was brought to recover the extraordinary wages, and the provisions expended during the detention for these repairs.

Lord Mansfield was of opinion, that such articles as sailors' wages and provisions expended, while a ship is detained to

Roccus de
Not. 16.

Assecur.

Fletcher and others v. after East 1769,hetore

Poole, Site.

Lord Mam

field at

Guildhall.

Baillie v. Moudigliani, B. R.

refit, can never be allowed as a charge against the insurer on the ship; and a verdict was accordingly given for the defendant.

In another cause, after a trial at Guildhall, a special case was reserved for the opinion of the Court, stating, that this Hil. 25 G.3. was an action upon a policy of insurance on goods at and from

Nevis to Bristol. The ship sailed from Nevis; but, before her arrival at Bristol, she was captured and taken into Morlaix, and there condemned. An appeal was lodged in the parliament of Paris, where the sentence was reversed, and the ship and cargo were decreed to be restored. Before the sentence of restitution, the ship and cargo had been sold; but the money was paid, the charges of prosecuting the appeal being deducted. The defendants have paid all the charges of the suit, and the salvage, except the sum now in demand, which was paid by the plaintiffs, as owners of the goods, to the owner of the ship for freight pro ratá itineris: and for which freight this action is brought on the policy on goods.

After time taken to deliberate, Lord Mansfield delivered the unanimous opinion of the Court for the defendants: the item now in litigation, His Lordship said, is that which was paid for freight by the owner of the cargo to the proprietor of the ship pro ratá itineris. The question is, Whether he can charge these underwriters for it? As between the owners of the ship and cargo, in case of a total loss, no freight is due; but as between them no loss is total, where part of the property is saved, and the owner takes it to his own use. In this case, the value of the goods was restored in money, which is the same as the goods; and therefore freight was certainly due pro ratâ itineris. But as between the owners of the goods, and the underwriters upon the cargo, the latter have nothing to do with the freight. The owner of the ship has a lien for his freight; but in a total loss, literally so called, no freight is due. In case of a loss, total in its nature, with salvage, the owner of the goods may either take the part saved, or abandon; but in neither case can he throw the freight upon the underwriters; because they have not engaged to indemnify him against it.

after Hil.

This also was an action on a policy of insurance, which Eden v. was on the ship and goods from Ostend to Dominique. The Poole, Sitt. following facts appeared in evidence: that the ship met with 1785. bad weather, and was in great distress; that the crew threatened to take the command from the captain unless he would make for the first port; that he then went to Ferrol to repair his ship, and by the time the repairs were finished, the crew forsook her; that he then got another crew, and at the moment he was going to sail, the Spanish governor stopped him; that after a detention of 37 days she was discharged, and then arrived at Dominique. This action was brought for the expence incurred by wages, provisions, &c. during the demurrage at Ferrol. On the part of the insurer it was contended, and so held by Mr. Justice Buller, who presided upon that trial, that the freight, and not the ship, is liable for this loss, and that the charge of demurrage could not be allowed upon this policy. The plaintiff was nonsuited.

I Term

Agreeable to the above doctrine, there is a decision of Robertson the whole Court of King's Bench. It was an action on a v. Ewer, policy of insurance, on the ship Dumfries, at and from Reports, London to Africa, during her stay and trade there, and at P. 127. and from thence to her port or ports of discharge in the British West India islands, to recover a partial loss. The facts were, that this ship, in the course of the war, after performing her voyage to Africa, in coming from thence, laden with slaves to the West Indies, touched at Barbadoes in December 1781, for the purpose of watering, at which island an embargo was laid on all ships by order of Lord Hood, the commander-in-chief upon that station; and the vessel was detained a considerable time. The captain applied for leave to depart, but was refused; whereupon he attempted to sail away privately in the night, but was pursued by the Salamander sloop of war, and after a slight engagement he was brought back, the Dumfries not having sustained any damage, for which the underwriters could be charged, on account of a clause exempting them from partial losses, not amounting to 3 per cent. Lord Hood, in consequence of this breach of embargo, upon her return took almost all the men out of the Dumfries, dispersed some of the crew among the ships of war: the captain and the rest of the crew were confined; and the

ship was detained at Barbadoes till the April following. This detention, however, was not proved to have arisen solely from the embargo, as it appeared that, for some part of the time, the small pox prevailed among the slaves, and that the embargo was frequently taken off and renewed between December and April. The action was brought to recover from the insurer upon the ship the additional wages paid to the seamen, and the charges for provisions during this detention.

Mr. Justice Buller was of opinion, at the trial, that the only damages proved, being items for seamen's wages, provisions, and demurrage, during the detention, could not be recovered under this policy on the ship only. To make the underwriter liable there must be a loss of the ship, for the policy is on the body of the ship only; and if she arrive safe at her port of delivery, be the voyage ever so long, you cannot recover under such a policy: if, indeed, she be in such a state as to prevent her from completing her voyage, it is certainly a loss. The plaintiff was nonsuited.

In the following term a motion was made to set aside the nonsuit, which, after argument, was refused by the whole Court. to be done, and upon that occasion Lord Mansfield said, "There is no authority to shew, that on this policy the insured can recover for such a loss, but it is contrary to the constant practice. On a policy on a ship, sailors' wages or provisions are never allowed in settling the damages. The insurance is on the body of the ship, tackle, and furniture; not on the voyage or crew. In this case it is admitted, that there was no damage done to the ship, tackle, or furniture; and therefore I think the direction was right, and that the plaintiff ought not to recover."

Mr. Justice Buller." I take it to be perfectly well settled, that you are not to recover on a policy on the body of the ship for seamen's wages or provisions: these are not the subject of the insurance. The case put at the bar proves the rule. For if the ship had been detained in consequence of any injury which she had received in a storm, though the underwriter must have made good that damage, yet you could not have come upon him for the amount of wages or provisions

visions during the time she was so repairing. Here the ship itself is safe; and the Court only look to the thing itself which is the subject of insurance; and the wages and provisions are no part of the thing insured."

The doctrine contained in the preceding cases was much discussed, and by some supposed to be considerably shaken by a decision of the Court of King's Bench in the year 1791; where it was unanimously held by the learned judges, that provisions sent out in a ship for the use of the crew are protected by a policy of insurance on the ship and furniture. In the argument of that case the judges at first thought it fell within the principle of decision in Robertson v. Ewer, which they were determined to support: but the grounds of distinction between the two decisions are stated with so much clearness and perspicuity, and the effect of usage upon this species of contract so well ascertained, that I feel it my duty not to abridge the arguments adopted by the court.

Brough v.

Whitmore, 4 Term Rep.

It was an action on a policy of insurance on an East India and China ship, and on the tackle, ordnance, ammunition, artillery, and furniture of the ship. At the trial before Lord 206. Kenyon at Guildhall, it appeared that while the ship was lying off Bank-saul Island, in the river Canton, it became necessary to refit her, for which purpose the stores and provisions were taken out of her, and put into a warehouse, called a bank-saul, and that while they were in the warehouse, they were destroyed by an accidental fire. It was admitted that the policy covered all the articles but the provisions, which were merely for the use of the ship's crew: but if those provisions were not protected by the policy, then there was not an average loss of 31. per cent. sidered in the same light as if the accident had happened on P. 67. board the ship. For the defendant it was contended, that the provisions were not protected by the insurance; but one of the jury said, it had been determined in Lord Mansfield's time, that they were included under the word furniture, under which decision the merchants had since acquiesced; on which the plaintiffs obtained a verdict.

It was con- See ante,

A motion,