Grantham showed cause.-There was in effect a demise of the ship. The defendants have had the use of the whole vessel, and the plaintiff is entitled to the sum agreed upon for freight without deduction in respect of the part of the cargo which was lost, through no default on his part but, by the excepted perils. The Norway (2 Mar. Law Cas. O. S. 17, 168, 254; 12 L. T. Rep. N. S. 57; Br. & L. 377) was cited on moving the rule. There it was held that in all cases of short delivery under a bill of lading, a deduction may be made from the freight of such proportion as would have been payable if the goods had been delivered, and this, even though the freight be lump freight, but must, if necessary, be the subject of a separate action. But here the cargo was lost by excepted perils, which was not so in the Norway, and which distinguishes this case from that. [BRETT, J.-Dr. Lushington in that case says (2 Mar. Law Cas. O. S. 172), "The freight is lump freight, and it is urged on behalf of the defendant that lump freight cannot be apportioned, that the deduction would be difficult if not impossible to calculate, and consequently that the only remedy open to the shipper is that of an action for damages. On the other hand, Mr. Lush argued for the plaintiffs, that if there was any difference between lump freight and freight per tale, it was, that in the case of lump freight, if any part of the cargo shipped was not brought to the port of destination, the shipowner in an action for freight could not recover any freight at all, because he would not have observed his own part of the contract, and in favour of this proposition he cited the old case of Bright v. Cowper (1 Brown, 21). There seems to have been no recent decision on the point, and on consulting the various text-books on the subject, I find that they all speak donbtfully as to what would be decided if a case like the present was to arise, and the court must therefore fall back upon considerations of equity."] In Dakin v. Oxley (2 Mar. Law Cas. O. S. 6; 10 L. T. Rep. N. S. 268; 15 C. B., N. S., 268; 15 C. B., N. S., 646) it was held that it is no answer to an action by a shipowner against the charterer to recover freight, that, by the fault of the master and crew, and their negligent and unskilful navigation of the vessel, the cargo was damaged so as, upon the arrival at the port of discharge, to be then and there of less value than the freight, and that the charterer abandoned it to the shipowner. [BRETT, J.-There the whole cargo of coal arrived in specie, though damaged. But I find the Norway went to the Privy Council, and the loss of part of the cargo having been occasioned by perils of the seas, the court held that, under the bills of lading and charter party, the master's lien on the residue for freight extended to the entire lump freight without deduction (2 Mar. Law Cas. O. S. 254; Bro. & Lush. 404). Now, there is a decision directly in your favour.] It is. [BRETT, J.-But the charter was in somewhat different terms, for the sum of 11,250l. was to be paid as freight "for the use and hire of the ship."] A little stronger phrase than is to be found here, perhaps, but both cases are governed by the same principle. The payment here is in effect to be for the use and hire of the vessel. [BRETT, J.-It is clear from the judgment of Dr. Lushington that he put the case entirely on the ground of the jettison having been caused by the neglect of the master; and in the Privy Coun

[C. P.

cil the Court say (p. 257), "It is right to eld that we do not mean to express an opinion that, even if the jettison and sale had been attributable to the negligence of the master, there ought to have been a deduction. Perhaps in this case the proper remedy of the shipper would have been by a cross action."]

Cock in support of the rule.-In the Norway (sup.) there was a clear demise of the vessel, and Knight Bruce, L.J. (in the course of the argumeut, see B. & L. 406) pointed out that the shipper had had the full value of the use of the ship. Here, however, are no such precise words. The contract for lump freight was merely made with reference to the nature of the cargo, the quantity of which could not be so easily ascertained by piece as when bales, &c. are shipped. Logs of wood would doubtless vary in size a good deal; and, therefore, it would be more convenient to estimate them in bulk and say, "For the shipload of wood delivered, you shall pay freight 3151. And for so much as is not delivered a proportionate deduction may be made."

KEATING, J.-I think the rule must be discharged. This is a question which arises on the right of the shipowner to recover the whole of a sum described as lump freight, without any deduction in consequence of the loss of the deck cargo contemplated by the charter-party, which loss occurred through no default on the part of the shipowner. Now the charter was entered into on the 3rd Oct. 1872, and by it the ship was to go to Riga, and there to load, at two places named, a full and complete cargo of lath wood, the ship to be provided with a deck load. Then it provides" that the ship, so loaded, shall proceed to London and deliver the same, being paid freight as follows, viz. a lump sum of 3157., the cargo to be taken from the side of the ship; freight to be paid in cash, half on the arrival, the remainder on unloading and right delivery of cargo, less four months' discount." The ship took in a full cargo, and took the deck load contemplated by the charter. But that deck load was lost by perils of the sea and without any default by the shipowner. The question is whether the shipowner is entitled to recover the full amount of 315l., or whether there should be a proportionate deduction in respect of the freight payable on the deck load which was so lost without the default of the shipowner. Some things are quite clear in this case. There seems to be no doubt that, under this charter, if the charterers had loaded less than a full cargo, the shipowner would have been entitled to a payment of the whole lump freight. Can any real distinction in principle be established betweer. a deficiency in the cargo caused by cargo not having been originally put on board, or a deficiency caused by peril of the sea without default of the shipowner? It seems to me that there can be no such distinction in principle. The only case relied on in moving this rale seems to be that of the Norway decided in the Admiralty Court by Dr. Lushington, and afterwards taken to the Privy Council. We have before us the decision of the Court on the appeal. There, on a charter-party not altogether identical with this, but, on the other hand, not distinguishable in principle, the Judicial Committee of the Privy Council held the shipowner entitled to the lump freight without any deduction in consequence of losses occurring without anything that could be charged as negli

U. P.]

gence in the shipowner. The terms there were, in every respect, very similar to those now in question; and it is to be observed that a portion of the lump sum was to be paid in advance, and the remainder on the true and sufficient delivery of cargo at the port of discharge, similar words to those in the present charter, yet, nevertheless, they held that the whole lump sum was recoverable, although part of the cargo was lost. In the Norway, as was pointed out by my Brother Brett, during this argument, Sir M. Vaughan Williams says, that although the charter expressed the sum to be paid as freight, yet it was for the "use and hire of the ship," and this lump sum was to cover both the out and inward voyage. Now, I do not think that that makes any substantial distinction between the two cases, because it was not the less one entire sum to be paid for one entire service. What was the service for which it was to be paid? Was it the bringing and delivery of all cargo which might be put on board, or bringing cargo which might be put on board, and was not, but without default of the shipowner? Sir E. V. Williams said, "It was objected on behalf of the respondent that by the charterparty the remainder of the lump sum is made payable only on 'true and final delivery of the cargo at the said port of discharge.' But it does not necessarily mean that the whole cargo originally shipped must be delivered. It may well have been intended merely to fix the time for payment to be the time of the delivery of such cargo as the ship brings with her to the port of discharge (7 Mar. Law Cas. O. S., p. 257). It seems to me that the same construction can be put on this charter-party. I think the better opinion is clearly that where a portion of the cargo has been lost without any default on the part of the shipowner, he is entitled to be paid his lump freight, even although there has been a partial loss.

BRETT, J.-It is quite true that the terms of this charter are not exactly the same as those apparently were in the Norway. But in the present case I think that the freight is a stipulated payment for a gross sum for the use of the whole ship for the whole voyage. Under these circumstances the rule is that in the first place the gross sum will be payable, although the merchant has not fully laden the ship, for the owner has put his ship at the disposition of the freighter to load with a full and complete cargo, if the freighter so please, but if he did not so please, and the voyage be completed the shipowner will be entitled to the lump sum. He has under his contract given the use of the ship for the purpose of carrying a cargo to the extent the freighter chooses to put on board. Therefore, it seems to me, the charters in this case, and in that of the Norway, are the same. In the Norway, it may be observed the freight was called in both courts a "lump freight," and was so treated. I do not think that either under that charter, or under this, there was what is called a "demise" of the ship, the vessel remaining in both cases in the possession of the shipowner. But it is one gross sum for the use of the entire ship, instead of a sum to be paid for each part of the cargo carried. Then the fact that the freight is to be paid half on arrival and the other half on unloading and right delivery of cargo, as in the Norway, was relied on to show that it would be payable on the delivering of the cargo. What cargo? Such as the freighter

[C. P.

chooses to put on board. Now, in this case, it is admitted that the disputed part of the cargo was lost by perils of the sea, within the excepted perils-therefore, not only lost without default of the shipowner but, positively a loss within the exception. In the case of the Norway before the Privy Council, the court doubted whether even if the cargo was lost by the shipowner he would not be entitled to full freight, leaving the freighter to bring an action against him. But here the loss was without any default. Then, if this be in fact the same case as the Norway, that is a distinct authority for saying that the innocent loss of a portion of the cargo does not entitle the freighter to deduct any part of the lump sum. Although a decision of the Privy Council is not in one sense binding on us, I think that court has put the true interpretation on the contract, and that the freighter bound himself to pay the full sum of 315l. for whatever things were brought to England. (a) Rule discharged.

and

or

Attorneys for plaintiff, Webb and Pearson. Attorneys for defendants, Parson and Lee.

or

or

and or

May 29 and June, 2, 1873. RODOCANOCHI AND OTHERS v. ELLIOTT AND OTHERS. Marine policy-Terrene risk-Goods shut up in beseiged town" Restraint of princes "-Notice Plaintiffs effected an insurance with the defendants of abandonment-Total loss. by a Lloyds's policy in the ordinary form. " lost or not lost, at and from Japan Shanghai to Marseilles and and Leghorn London, via Marseilles Southampton, and whilst remaining there for transit on silks against the usual perils— "arrests, restraints, and detainment of princes," &c., and it was agreed that the silks should be shipped by any of three designated lines of steamers, one of which was the Messageries Imperiales. That company, as was well known to underwriters, always sent such goods overland through France, i.e., by the Lyons Railway from Marseilles to Paris, and thence by the Northern Railway to Boulogne, and thence to London. The silks were shipped at Shanghai for London on board a steamer of the Messageries Imperiales, and reached Marseilles on the 27th Aug. 1870. There was then, and from the 15th July previously had been war between France and Germany. The silks were despatched by the Lyons Railway and arrived in Paris on or before the 13th Sept. The German armies, which were at that time advancing upon and gradually surrounding Paris, on the 19th completely invested it, held military possession of all the roads leading out of Paris, and prevented communication between it and all other places, by reason whereof it was impossible to remove the silk from Paris. This state of siege continued, and on the 29th Sept., while the silks were detained in Paris, the plaintiff's gave notice of abandonment to the under

writers:

Held, that the policy covered the terrene risk of the transit through France, that the goods were lost by the perils insured against, viz., restraint of princes; that notice of abandonment was given in reason

(a) This case has been since followed by the Court of Queen's Bench in Merchant Shipping Company v. Armitage (L. Rep. W. N., June 14, 1873).

C. P.]

able time; and that, therefore, the plaintiffs were entitled to recover the sum insured from the underwriters as for a total loss.

ACTION to recover 400l. on two policies of insurance and the following Case was stated without pleadings.

1. The plaintiffs effected insurances on silks by two policies in the ordinary form of Lloyd's policies. By one dated 24th March, 1870, which was for 15,000l., they caused themselves in the words of the policy to be insured as follows, that is to say: from Japan Shanghai to London, via Marseilles and

and

and

Lost or not lost at an Marseilles Leghorn Southampton and whilst

or

and

or

or

remaining there for transit, with leave to call at any ports or places in or out of the way for all purposes.

[C. P.

10. The silks were carried in the said steamer Phase from Shanghai to Hong Kong. They were there transshipped to the steamer Peiho of the same company, the Messageries Imperiales, and they were carried on board the said steamer Peiho through the Suez Canal direct to Marseilles. This is the ordinary course of business of the Messageries Imperiales in carrying the goods from Shanghai to Marseilles. Goods from Shanghai for Marseilles are carried by that company from Shanghai to Hong Kong by a branch line of steamers, and the steamers for Marseilles start from Hong Kong. The silks arrived at Marseilles on board the said steamer Peiho on the 27th Aug. 1870.

11. The Messageries Imperials carry goods at

The said ship and goods and merchandises, &c., for so much as concerns the assured by agreement between the assured and assurers in the policy, are and shall be valued at 15,000l., being on silks, to be hereafter valued and declared.

3. The risks insured against are described in the policy described as follows:

Touching the adventures and perils which we the assurers are contented to bear and do take upon us in this voyage, they are of the seas, men of war, fire, enemies, pirates, rovers, thieves, jettisons, letters of mart and counter mart, surprisals takings at sea, arrests, restraints, and detainments of all kings, princes, and people of what nation, condition, and quality soever, barratry of the master and mariners, and of all other perils, losses, and misfortunes that have or shall come to the hurt, detriment, or damage of the said goods and merchandises or ships, &c., or any part thereof.

4. In the margin of this policy is a memorandum in the following words:

syd

or

It is hereby agreed that the silks insured by this policy shall be shipped by Peninsular and Oriental Company, Messageries Imperiales steamers the steamers of the Mercantile Trading Company of Liverpool only. And it is further agreed that on shipments by the last-mentioned company's steamers, 20s. additional shall be charged.

5. In the above policy, dated the 8th April 1870, which was for 10001., the voyage and the subject matter insured against are described in terms nearly the same as in the first mentioned policy.

6. The defendants underwrote each policy for 2007. (Copies of both policies were in the Appendix to this case, and might be referred to as part of this case.)

7. Sixty-four bales of silk, the subject of this action, were shipped at Shanghai on board the Messageries Imperiales steamer Phase, and consigned to the plaintiffs under a bill of lading dated 7th July 1870. (A copy whereof was in the Appendix.)

8. The silks were duly declared on the beforementioned policies and valued at 11,2201., and 36251., part of the said sum of 11,2201., was declared on the first policy, and 75951., the residue of the said sum of 11,220l., was declared on the second policy. These declarations were endorsed on the policies respectively. (Copies of these declarations were in the Appendix.)

9. At the time of the said declarations, and thence until the giving of the notice of abandonment hereinafter mentioned, the plaintiffs were interested in the silks to the amount of the said sum of 11,2201.

upon the silks was paid to the Messageries Imperiales from Shanghai to London.

12. (As amended at suggestion of the Court.) Before and at the time of insurances, the steamers of the Massageries Imperiales ran from the East to Marseilles and no farther. Of those of the Peninsular and Oriental Company, one line ran to Marseilles and no further; another ran direct to Southampton. Those of the Mercantile Trading Company ran direct to Liverpool. Goods were never in the ordinary course of business carried from China, Japan, or India to London viâ Marseilles, except by the Messageries Imperiales, and that company always sent such goods overland through France, that is to say, by the Lyons Railway from Marseilles to Paris, and thence by the Northern Railway to Boulogne, and thence to London. Silk is usually, but not invariably, sent by petite vitesse. It was well known among underwriters that goods sent from China, Japan, or India to London via Marseilles were always sent overland through France.

13. At the time when the silks reached Marseilles there was, and from the 15th July previously had been war between France and Germany.

14. On the 15th July 1870, a decree of the French Government was issued in accordance with the Laws of France, whereby both the Lyons Railway Company and the Northern Railway Company were bound immediately to place at the disposal of the French Minister of War all their means of transport; and whereby the said companies were also empowered to suppress passenger or goods trains as far as might be necessary to carry out the before mentioned order. (A translation of so much of the decree as was material was in the Appendix.)

15. Notice of the before mentioned decree was on the 16th July 1870 sent to every station on each of the said railways respectively. A copy of this decree was posted up in every station of the said Lyons Railway.

16. After the date of the before mentioned decree each of the said railway companies continued to receive goods for carriage and to carry them in the ordinary course, except as hereinafter mentioned, until such carriage was interrupted at the times and in the manner hereinafter mentioned.

17. Goods sent from Marseilles to Paris, and carried by the Northern Railway from Paris to Boulogne for London, continued to leave Paris regularly till the 6th Sept. and to arrive in London regularly till the 7th Sept. 1870. On the 10th

C. P.

Sept. 1870 carriage by the said railway from Paris to Boulogne became, and thence until after the giving of the notice of abandonment hereinafter mentioned, and until after the commencement of this action, continued to be impossible and ceased altogether in consequence of the German armies having taken possession of parts of the said railway, and intercepted all communications by such railway between Paris and Boulogne. During the month preceding the said 10th Sept. 1870, the time occupied by the journey between Marseilles and London varied greatly. The time ordinarily occupied in that journey is eight days for goods sent by petite vitesse.

18. On the 29th Aug. 1870 the plaintiffs received in London a letter from their agent at Shanghai, informing them of the shipment of the silk. This letter came from Shanghai to Marseilles by post in the same steamer with the silks.

19. On the same 29th Aug. 1870 the plaintiffs wrote to their agents, Messrs. Rodocanochi, of Marseilles, a letter containing the following

terms :

We have received advices from Shanghai of the sixtyfive bales of silk R. S. C. 1/65 consigned to us by the Phase steamer and overland, that is to say, by the mail which has just arrived, and we find in the advices the following clause :-"To be warehoused at Marseilles at the company's expense during one month, and to await orders from the consignee.' Be good enough, therefore, to give orders to the agent that the silks may be forwarded to London.

On the same day the plaintiffs wrote to their said agents at Marseilles another letter containing the following terms:

The first 65 bales from Shanghai are coming by the French steamer, and the freight is paid to London. We do not doubt that you have given orders to send them here. They are insured, including war risk

These letters would in the ordinary course of post reach Marseilles on the 31st Aug. 1870.

20. On the 31st Aug. 1870 Messrs. Rodocanochi, of Marseilles, sent the director of the Maritime Service of the Messageries imperiales a letter, of which the following is the translation:

Marseilles, 31st Aug. 1870. The Director of the Maritime Service of the Messageries Imperiales,-In town. We receive the orders of Messrs. Rodocanochi, Sons, and Co. to despatch to London the 65 bales of silk, "R. S. C." arrived from China by the French steamboat, Peiho, which you hold in warehouse to their orders. We forward you their order at once, begging you to have the goodness to execute it to-day, if possible. We have, &c.

(Signed)

F. & K. RODOCANOCHI. 21. On the same 31st Aug. 1870 Messrs Rodocanochi, of Marseilles, wrote to the plaintiffs in London a letter, from which the following is an extract:

We are are glad to hear that you have insured the 65 bales of silk, including war risk, and we have ordered them to be forwarded to London, as you will see by the inclosed copy of our letter to the Messageries Imperiales.

22. The silks were delivered to the Lyons Railway Company on the 2nd Sept. 1870, and a receipt for them was given by that company. [A copy of this receipt, and of the endorsement thereupon was in the Appendix.]

23. The silks were despatched from Marseilles on the 3rd Sept. 1870 by petite vitesse.

24. The silks arrived at Bercy on or before the 13th Sept. 1870. Bercy is the railway station in

[C. P.

25. At the time of the arrival of the silks at Marseilles, and thence, until and after the arrival of the silks at Bercy, the German 'armies had invaded and occupied a large part of France, and were advancing upon and gradually surrounding Paris, which state of things continued until the 19th Sept. 1870, on which day the German armies completely invested Paris. From the last-mentioned day until the giving of the said notice of abandonment, and thence until the commencement of this action, they completely surrounded and beseiged Paris, and held military possession of all the roads leading out of Paris, and prevented communication between Paris and all other places, by reason whereof it was during all this time aforesaid impossible to remove the silk from Paris.

26. On the 29th Sept. 1870, while the silks were detained in Paris as above-mentioned, Messrs. Rodocanochi, of Marseilles, received from the Messageries Imperiales a letter informing them of the detention of the silk at Bercy. (A translation was in the Appendix.)

27. On the 7th Oct. 1870 the plaintiffs gave notice of abandoning the silks to the defendant and the other underwriters. (A copy of the notice was in the Appendix.)

28. After the commencement of this action the silks were forwarded to London, and they arrived in London in an undamaged state on the 20th March 1871.

29. A correspondence, commencing on the 17th March and ending on the 9th May 1871, took place between Messrs. Markby and Tarry, the plaintiff's attorneys and solicitors, and Waltons and Bubb, the defendant's attorneys. (A copy of this correspondence was in the Appendix.) The notice referred to in the letter of the 17th March 1871, from Messrs. Markby and Tarry to Messrs. Waltons and Bubb, was a notice of the arrival of the silks in London received by the plaintiffs from the Messageries Imperiales. The plaintiffs, taking upon themselves to act for the benefit of the underwriters, dealt with the silks in the manner hereinafter mentioned.

30. On the 2nd Sept. 1870 the plaintiffs had by a written contract bearing date that day sold the silks to arrive, on the terms that the prompt should be four months from making, and that in the event of the silks not arriving the contract was to be null and void. (A copy was in the Appendix.)

31. When the silks arrived in London the prices of silks were about the same as at the time when the contract of the 2nd Sept. 1870 was made.

32. The purchasers elected to take and did receive the silks after their arrival in London under the last mentioned contract and paid the plaintiffs the net price of 93621 12s. 6d., in accordance with the terms of the contract.

33. The court might draw inferences of fact.

34. A claim was made on behalf of the plaintiffs before the arbitrator, by whom this case was stated, to recover as for a partial loss of the silks, first in respect of an alleged loss of weight in the silks by a natural process of drying, during and in consequence of their detention in Paris, and secondly, in respect of loss of interest upon the purchase money to be received for the silks during the period of such detention.

C. P.

The questions for the court were: First, whether the silks were covered by the policies at the time of the alleged loss; secondly, whether the plaintiffs were entitled to recover for a total loss of the silks; thirdly, whether the plaintiffs were entitled in point of law to recover as for a par tial loss, in respect of the matters mentioned in par. 34, or either of them.

If the court should be of opinion in favour of the plaintiffs on the first question, and that there had been a total loss, judgment was to be entered for the plaintiffs for an amount to be ascertained as the court shall direct, with the costs of suit.

If the court should be of opinion in favour of the plaintiffs on the first question, and that the plaintiffs were entitled in point of law to recover as for a partial loss, in respect of the matters referred to in the third question, or either of them, the case should be referred back to the arbitrator, by whom this case was stated, to find what sum (if any) was recoverable in respect of such matter or matters, and in such case judgment should be entered for the plaintiffs for the amount (if any) which should be found to be so recoverable with the costs of suit. And if nothing should be found to be so recoverable, judgment should be entered or the defendant for his costs.

If the court should be of opinion in favour of the defendant upon the first question, or upon the second and third questions, judgment should be entered for the defendant for his costs.

Field, QC. (with him Thesiger) for the plaintiffs-First, the risk was covered by the policy. The voyage actually made, viz. to London viâ Marseilles, was within the policy, and the words in the description of the voyage," whilst remaining there for transit," apply to any of the voyages stipulated for which involve land transit, as the voyage in question undoubtedly did to the know. ledge of the underwriters (par. 12). Part of the journey was clearly terrene.

Secondly, the loss was caused by one of the perils insured against, viz. an arrest, restraint, or detainment of princes. There are no English cases precisely in point, but the American case of Oliveira v. The Union Insurance Company (3 Wheat. 183; 4 Curtis, 193) is nearly So, where it was held that a vessel within a port blockaded after the commencement of her voyage, and prevented from proceeding on it, sustains a loss by a peril within this clause of the policy insuring against the arrest, restraint, and detention of kings, &c. for which the insurers are liable. [BRETT, J.-But a blockade is for the very purpose of preventing ships going out of the port]. Just as the investment of Paris, in the present case, was to prevent the exit of men and goods. [BRETT, J.-Does no English case decide that blockade is an arrest ?] None; but there is one in which it was held that the fear of arrest preventing the master of a vessel from entering a port did not amount to a total loss.

Hadkinson v. Robinson, 3 Bos. & P. 388; Lubbock v. Rowcroft, 5 Esp. 50; Barker v. Blakes, 9 East. 283. Those three cases are the only English authorities bearing on the question. In Oliveira v. The Union Insurance Company (sup.), Marshall, C.J. delivering the judgment of the Supreme Court of the United States says, "The question, whether a blockade is a peril insured against is one on which the court has entertained great doubts. In

6

The

[C. P. considering it, the import of the several words used in the clause has been examined. It certainly is not an arrest,' nor is it a detainment.' Each of these terms implies possession of the thing by the power which arrests or detains; and in the case of a blockade the vessel remains in the possession of the master. Bat the court does not understand the clause as requiring a concurrence of the three terms, in order to constitute the peril described. They are to be taken severally; and if a blockade be a 'restraint,' the insured are protected against it, although it be neither an 'arrest nor 'detainment.'" (p. 194.) (He also read other passages of this judgment, which are cited by Bovill, C.J. infra.) That is a case precisely analogous to the present one. [BRETT, J.-The ship there was within a blockaded port, but I believe the American courts have gone still further and held that a blockade preventing entrance into the port is restraint.] The Saltus v. The United Insurance Company (15 Johns. N. Y. Sup. Ct. Rep. 523), an American brig bound for St. Petersburg during our war with her country put into Wingo Sound, near Gothenburg, as a place of safety; but it was impossible for her to pursue her voyage without the certainty of capture. The Baltic was thronged with British cruisers; several were stationed in Wingo Sound, one or more of which were always in sight from Gothenburg, and the vessel must have attempted to pass them to get to sea. voyage was in consequence abandoned. Thompson, C.J. delivering judgment said, "The loss in this case may, I think, fairly fall within the risk of restraint of princes or of men-of-war. It is not necessary to constitute a loss by the peril, that actual physical force should be applied to the subject insured:" (p. 528). Exclusion may not be restraint; but here was restraint. The American authorities seem to show that the fact of the master abandoning the voyage merely quia timet, is not enough to be a total loss; but in the present case there was actual inability to move, Geipel v. Smith (ante, vol. 1, p. 268; L. Rep. 7 Q. B. 404; 26 L. T. Rep. N. S. 361) was an action on a charter-party against English shipowners for refusing to let the ship take goods to Hamburg according to their agreement; they pleaded the blockade of the port by the fleets of France, and that an attempt to run the blockade would contravene a British proclamation of neutrality, and it was held that they were justified in throwing up the contract as the further performance was prevented by an excepted cause, viz., the blockade, which was a "restraint of princes." [BRETT, J.-But the clause there was in a charter-party, to which case the doctrine of causa proxima does not apply.] It is difficult to understand the distinction between causa proxima with reference to a charter, and with reference to a policy, although a distinction certainly exists. If not a restraint this was an arrest : (Bird v. Jones, 7 Q.B. 242). There the plaintiff attempting to pass in a particular direction, was obstructed by defendant, who prevented him from going in any direction but one, not being that in which he had endeavoured to pass; and it was held to be no imprisonment, for as Coleridge, J. said, "A prison may have its boundary large or narrow, visible and tangible, or, though real, still in the conception only; it may itself be movable or fixed; but a boundary it must have." . . . The restraint must be within a circumscribed space, and here it