years in the China trade, for all European ships, while at Canton, to store all their rigging and furniture in storehouses, built for that purpose on sand banks in the Canton river, called banksauls, it was held that every underwriter insuring a risk in the Canton trade must be considered to have done so with reference to this usage; that the storing of the rigging in the banksaul must be deemed to have been quite as much part of the risk insured as though it had been expressed so to be in the policy; and that the underwriter was, therefore, as much liable for a loss by fire happening to the rigging so stored as for any similar loss occurring in any other part of the adventure (o). Sect. 58. trade. It was formerly the uniform and well-known practice of East India the East India Company to reserve in their charter parties the liberty of employing the vessel in what is called the country trade, that is, on intermediate voyages from one port to another in India. All parties engaged in this trade were taken to be fully cognizant of this usage: accordingly, under policies on ships employed by the company, though nothing was said of an intermediate voyage in the policy, yet, because the voyage insured was known by the underwriter to be an East India voyage, the Courts held that he must be presumed to have contracted with reference to all the known usages of the East India trade; and therefore that the construction of the policy should be the same as if liberty had been expressly reserved, on the face of it, to make such intermediate Voyage (p). In the Newfoundland and Labrador trades, where the main Newfoundland trade. object of the voyage is to take fish, it was a well-known and general usage that the cargoes insured on such voyages, being chiefly salt and provisions, were taken out as they were wanted, and not landed, like other cargoes, on arrival; under an insurance, therefore, on such a fishing voyage, on "goods" (0) Pelly v. Royal Exch. Ass. Co. (1757), 1 Burr. 341; Brough v. Whitmore (1791), 4 T. R. 206. (p) Salvador v. Hopkins (1765), 3 Burr. 1707; Gregory v. Christie (1784), 3 Dougl. 419; Farquharson v. Hunter (1785), 1 Park, 105. Sect. 58. in the usual form, "until discharged and safely landed," it was held that the underwriter, who must be taken to have insured with full cognizance of this usage, could not exempt himself from liability for a loss upon the goods because such loss had not taken place until long after the time when, but for such custom of the trade, his liability under the mere terms of the policy would have been at an end (2). It was also a well-understood and familiar usage of the Newfoundland trade that the ships engaged in it, after their arrival at Newfoundland, were either engaged for some time in fishing (called banking), or made intermediate voyages from one American port to another before beginning to load a cargo on the homeward voyage. It was ruled, both by Lord Eldon and Lord Ellenborough, that underwriters who had insured homeward risks on ships engaged in this trade, under policies" at and from Newfoundland," were bound to know this usage; and were not entitled to contend that such intermediate voyages vitiated the policy, by varying the risks they had intended to insure, so as to discharge them from a loss happening upon the final voyage home (»). 66 “the According to the general import of the words 'at and from,'" says Lord Ellenborough, in one of these cases, policy would attach on the ship's first mooring in a harbour on the coast, but it doubtless may be explained differently by usage, and, as between these parties, the policy must be taken to be the same as if it had been expressed to attach on the expiration of the banking or intermediate voyage" (s). This certainly seems an instance of usage being permitted to control the general import of a clause in the policy as fixed by legal construction (t). (2) Noble v. Kennoway (1780), 2 Dougl. 510. The voyage in this case was to the coast of Labrador, but evidence was admitted to show the usage in such case to be the same as on fishing voyages to the coast of Newfoundland. (r) Vallance v. Dewar (1808), 1 Camp. 503; Ougier v. Jennings, ibid. in notis, per Lord Eldon in 1801, when Chief Justice of the Common Pleas. (s) 1 Camp. 508. (t) So Arnould, 2nd ed. p. 74. But is it not in reality simply a case where, the policy being on its face governs the ment and ter 59. The risk on ship and goods, generally speaking, only Sect. 59. commences at the very port or place named in the policy as Usage that whence the ship is to sail, or where the goods are to be commenceloaded; but if a general and well-known usage of the parti- mination of cular trade can be shown, that the ship under certain circum- the risk. stances is to sail from, or the goods are to be loaded at, not that very port or place, but some port near it, the underwriter will be bound by such usage, and not allowed to dispute his liability on the ground that the risk, under the precise terms of the policy, never commenced on the subject insured. Thus, where it was shown to be a well-known usage in the Oporto trade. Oporto trade for ships to complete their loading for the homeward voyage outside the bar, whenever from the low state of water in the River Tagus they cannot conveniently do so withinside the bar, Lord Ellenborough ruled, that an underwriter who had insured a ship" at and from Oporto to London" could not object that he was discharged from his liability because the ship, without his knowledge, had finished her loading outside the bar (u). So, where it was proved to Florida trade. be customary in the Florida trade for ships to take in their homeward cargoes at Tigre Island in St. Mary's River, and then drop down to Amelia Island, a little lower down the river, for the purpose of paying dues and clearing; it was held that an underwriter who had insured goods “at and from the ship's loading port or ports in Amelia Island to London" was not entitled to object that the policy never attached because the goods had been loaded, not at Amelia Island, but at Tigre Island (x). ambiguous as to the time when the voyage which it was intended to cover should commence, evidence was admitted to remove such ambiguity, by showing that it was a voyage home after the intermediate fishing voyage, and no other, which the parties had in their minds ? See Duer, vol. i. p. 203. (u) Kingston v. Knibbs (1808), 1 Camp. 507, in notis, a very strong case, as it appeared that in such (x) Moxon v. Atkyns (1812), 3 Sect. 59. Archangel. Leghorn. Particular usage prevails It was formerly the well-known custom at Archangel, immediately on a ship's arrival, to seal down her hatches, send a custom-house officer on board till she was unloaded, and carry the goods to the government warehouses, where they remained till the duty was paid; a merchant who had insured his goods from London to Archangel "until they should be there discharged and safely landed" was held to have no right of action against the underwriter, for any loss that had occurred on the goods after they had been landed and lodged in a government warehouse in accordance with the custom; for, as Lord Ellenborough said, the goods were then landed, according to the usual course of trade, at the port of Archangel, which was all the underwriter undertook for (y). So, on proof of an ancient and well-known custom at the port of Leghorn, that certain goods for that port should be invariably landed at the Lazaretto, it was held, in the United States, that a merchant who had insured goods of this description "till they were safely landed at Leghorn could not protect them by such policy after they were once landed at the Lazaretto, such being by the custom of the trade equivalent to a landing at Leghorn (≈). Under a policy on ship at the Mauritius, and for thirty days after arrival, evidence was admitted of a usage to anchor at the Bell Buoy, outside the harbour of Port Louis, where vessels calling for orders, seeking freight, or receiving or discharging part-not the whole-of their cargo, waited, and that they were then considered to be at the Mauritius, and a total loss at this place within the thirty days was held to be covered by the policy (a). 60. Such are some of the applications that have occurred in policy could not be construed liter- (y) Brown v. Carstairs (1811), 3 (2) Gracie v. Maryland Ins. Co. (1814), 8 Cranch's Sup. Ct. Rep. 75. (a) Lindsay v. Janson (1859), 28 L. J. Ex. 315; 4 H. & N. 699. Asto determination of risk "to Jamaica,' see Camden v. Cowley (1762), 1 W. Bl. 417. See the effect of usage at the Port of Liverpool on the law of demurrage, Norden S.S. Co. Dempsey (1876), 1 C. P. D. 654. maritime practice of the principle now under consideration; those that Sect. 60. immediately follow illustrate the position, that, where the over general usage of the particular trade with reference to which the usage. underwriter insures is opposed to any of those general usages of maritime trade with reference to which all policies are prima facie supposed to be made, the former is to be taken as the true key to the construction of the policy in preference to the latter. On an insurance on goods, the underwriter is in general entitled to expect that they will be carried in the hold, and not on deck, which is regarded as an unusual and dangerous place for that purpose. Every policy, then, in the absence of any express stipulation to the contrary, is generally read as though it contained on the face of it an exemption in terms against all liability on goods so carried (b). But whenever it can be shown that, by a well-settled and generally-known usage of the particular trade on which the underwriter insures, goods of the specific description of those on which the policy is effected are customarily carried on deck, the more general usage gives way to the more particular one, and the underwriter is liable for any loss upon the goods so carried, without any necessity of proving notice (c). Goods carried on deck by usage. Stopping at interjacent In the same way it is a general usage of maritime trade, incorporated as we have seen into all policies, that the ship, port. in the absence of any express permission on the face of the policy to do otherwise, shall pursue a direct course between the two termini of the voyage, without stopping at any intermediate places; if, however, it be the notorious and well-settled usage of any given trade to stop at certain interjacent ports, this usage of the particular trade would doubtless countervail the general maritime usage, and the stopping at (6) See the judgment of Lord Lyndhurst in Blackett v. Royal Exch. Ass. Co. (1832), 2 Cr. & Jer. 249, 250. (e) Da Costa v. Edmunds (1814), 4 Camp. 142; Gould v. Oliver (1837), 4 Bing. N. C. 134; Milward v. Hibbert |