Sect. 450.

Bell v. Hobson.

Joyce v. Realm Insurance Co.

Court of Appeal. And Lord Ellenborough, C. J., himself an assisting party in the establishment of this construction, says of it: "A very strict and certainly a construction not to be favoured, and still less to be extended, was adopted in Spitta v. Woodman. But if there be anything to indicate that a prior loading was contemplated by the parties, it will release the case from that construction" (m).

Accordingly, where the words used on the face of the written instrument show, consistently with sound principles of interpretation, that the parties intended by the policy to protect goods loaded on board the ship elsewhere than at the terminus a quo of the voyage insured, the Court will relax the rigour of this rule.

Thus, where a policy on American produce for a voyage at and from Gottenburg to any ports in the Baltic, "beginning the adventure on the goods from the loading thereof on board the ship," was on the face of it declared to be "in continuation of five other policies," and these were on the same cargo for a voyage from Norfolk in Virginia to Gottenburg: Lord Ellenborough held that, as it thus clearly appeared on the face of the policy that the parties to it must have known that the goods had been loaded on board before arriving at Gottenburg, the policy had attached (n).

So a policy of re-insurance was in such terms as would have brought it within the rule in Spitta v. Woodman; but it was expressly made "subject to all clauses and conditions of the original policy," and as the original policy, being upon goods embarked in the barter trade on a voyage to Africa and back, stipulated that outward cargo should be considered homeward interest twenty-four hours after the ship's arrival at her first port of discharge, it was held that the policy of re-insurance was qualified by the terms of the

(m) Bell v. Hobson (1812), 16 East, 240, 248. In the following year, however, Lord Ellenborough followed Spitta v. Woodman in Mellish

v. Allnutt (1813), 2 M. & S. 106.

(n) Bell v. Hobson (1812), 16 East, 240; S. C., at N. P. 3 Camp. 272.

original policy and had attached on the goods, although not Sect. 450. loaded on the coast of Africa, but at Liverpool (0).

words

loaded."

Lord Ellenborough had, in Bell v. Hobson, suggested the Effect of the introduction of the words "wheresoever loaded" as a way of "wheresoever adapting the policy to the purposes of the parties. Accordingly Gladstone v. a policy on a cargo for a homeward voyage "at and from Clay. Pernambuco to Maranham, and at and from thence to Liverpool "—"beginning the adventure on the said goods from the loading thereof on board the said ship wheresoever"—was held, by virtue of the word "wheresoever," to protect a portion of the outward cargo loaded at Liverpool and still on board at the time of the loss, while the ship was on her way from Pernambuco to Maranham, not having found a market at Pernambuco (p).

451. Moreover, if the goods, though originally loaded on Constructive loading. board elsewhere, are afterwards, either wholly or in part, first landed and then reloaded at the port specified in the policy as the terminus a quo of the voyage, this is a sufficient "loading on board the ship" at that port to make the policy attach under the clause.

Kettlewell.

Thus, under a policy on ship and goods "at and from Nonnen v. Landscrona to Wolgast," beginning the risk on the goods "from the loading on board the ship," the goods, though previously loaded on board at Gottenburg, were partly taken out of the hold on the ship's arrival at Landscrona and landed on the quay there, so as to enable the custom-house officers to ascertain the quality of the whole cargo and adjust the duties on it, after which they were reloaded on board. Lord Ellenborough held that this unloading and reloading distinguished the case from that of Spitta r. Woodman, and was sufficient to make the policy attach on the goods at and from Landscrona (2). Accordingly, under a similar policy on goods Carr r.

(0) Joyce v. Realm Ins. Co. (1872), L. R. 7 Q. B. 580; 41 L. J. Q. B. 356.

(p) Gladstone v. Clay (1813), 1 M. & S. 418.

(9) Nonnen v. Kettlewell (1812), 16 East, 176. In this case it was objected that the cargo had not been so far unloaded as to ascertain what amount of sea damage it had

Montefiore.

Sect. 451.

Constructive loading in the United States.

The strict rule not

applicable where there

is a liberty to

touch and stay.

"from a port or ports in the River Plate," where the cargo on the forepeak down to the keelson was taken out and landed at Monte Video for the purpose of repairing the ship and then reloaded, it was held that this satisfied the clause "from the loading thereof on board," although it was a cargo of guano that had been originally shipped at Liones Island in Patagonia. Cockburn, C. J., however, said he relied more upon the additional fact that at Monte Video, after the repairs, both ship and cargo had changed hands by sale and a new destination was given to the adventure by the purchasers (r).

In the United States, where the construction put upon this clause is as strict as in our own Courts, it has been held that merely unstowing the goods from the hold on the ship's arrival at the terminus a quo of the voyage insured, in order to make room for other goods there taken in, and then re-stowing them, is not equivalent to a loading on board at such terminus so as to make the policy attach on those goods (s). Phillips thinks that if the goods in this case had been landed on the wharf and then taken on board again, this would have been a loading within the terms of the policy.

452. This strict rule of construction, which has been applied in the case of goods loaded before the ship has reached the terminus a quo, does not prevail where, the voyage being a trading or bartering voyage, the policy contains a liberty "to touch, stay, trade, &c.," or any other clause of that kind; for in such cases it is obvious, on the face of the policy itself, that it must have been contemplated by the parties that other goods would be put on board in the course of the voyage than those loaded at the port of departure, and that they intended to protect such goods by the policy. Wherever, therefore, it

sustained on the voyage from its
prior port of loading; but Lord
Ellenborough held that as the goods
were "warranted free of average,"
the objection at all events in this
case would not apply.

(r) Carr v. Montefiore (1863), 5 B. & S. 408; 33 L. J. Q. B. 57; affirmed (in error) (1864), 5 B. & S. 425; 33 L. J. Q. B. 256.

(8) Murray v. Columbian Ins. Co. (1814), 11 Johnson, 302, cited 1 Phillips, Ins. s. 939.

Allnutt.

can fairly be deduced from the whole construction of the Sect. 452. policy that the parties contemplated loading, unloading, bartering or trading with goods at any intermediate ports in the course of the voyage insured, the policy attaches not only on goods loaded on board at the port of departure, but also on those loaded on board at any of the ports where the ship is empowered to touch and trade under the terms of the policy, or where, upon a true construction of the whole instrument, it must be presumed that such a loading was contemplated (t). Thus, where a ship has liberty by such a policy to touch at Violett v. a specified port, the policy attaches on goods loaded on board at that port in order to complete the cargo (u). So a freight Barclay v. Stirling. policy, with liberty for the ship "to call, exchange, or take on board goods at any ports or places she may call at," was held to cover the freight on fresh goods loaded on board the ship at a port of distress in order to replace part of the original cargo, which had been washed out of her as she lay ashore (x). So in the case of Hunter v. Leathley, the policy attached on Hunter v. Leathley. goods shipped on board to complete the cargo at a port lying diametrically out of the course from the original port of loading to the ultimate ports of discharge, and not named in the policy, though embraced within its very extensive terms. Lord Tenterden intimated that in policies on trading voyages all places mentioned in the policy after the words "with liberty to touch, &c." may be considered as loading portsi.e., as ports, goods loaded at which will be protected by the policy (y).

453. The two following cases afford a good illustration of the mode in which the Courts apply policies containing such

(t) Violett v. Allnutt (1811), 3 Taunt. 419; Grant v. Delacour (1806), cited 1 Taunt. 466; Grant v. Paxton (1809), ibid. 463; Barclay v. Stirling (1816), 5 M. & S. 6; Hunter v. Leathley (1830), 10 B. & Cr. 858; affirmed (in error) (1831), 7 Bing. 517.

(u) Violett v. Allnutt (1811), 3 Taunt. 419.

(x) Barclay v. Stirling (1816), 5 M. & S. 6.

(y) Hunter v. Leathley (1830), 10 B. & Cr. 858; in error (1831), 7 Bing. 517.

Sect. 453. extensive liberties of touching and staying to the protection of goods laden on board in the course of the voyage.

Grant v.
Delacour.

Grant v. Paxton.

An East India captain, being desirous of protecting his interest in the adventure for the voyage out and home, effected a policy "on goods as interest shall appear" "at and from London to all ports or places on this or the other side of the Cape of Good Hope forwards and backwards at sea, at all times, on all services, and all ports and places, until the ship's arrival back again to her last station of discharge at Blackwall or Deptford," "beginning the adventure on the said goods from the loading thereof on board the said ship at London."

The Court held that, though these last words literally applied only to goods laden in London for the outward voyage, yet as these voyages were for the purposes of trading and barter, the policy attached upon any goods which the captain might acquire by trading with his outfit in the course of the voyage described in the policy, wherever they might be loaded on board (≈).

The same captain, to protect his interest in the same adventure for the homeward voyage, effected an insurance on goods "at and from China to all or any other ports or places whatsoever or wheresoever in the East Indies, Persia, or elsewhere beyond the Cape of Good Hope, in port or in sea, in all places, at all times, and in all services, until the ship's safe arrival in London "-" beginning the adventure upon the said goods from the loading thereof on board at China," "with liberty for the ship in that voyage to proceed and sail to and touch and stay at any ports or places whatsoever, for any purposes whatsoever, without being deemed a deviation.” With a cargo of tea originally loaded on board at China for the homeward voyage, the ship was afterwards obliged to put into Bombay to repair; the tea cargo was sent on to England in another vessel, and the captain, having repaired his ship,

(z) Grant v. Delacour (1806), cited 1 Taunt. 466. See per Mansfield, C. J.. ibid. 474.