nances and

Code de Com

and according to the decisions in America, the shipowner is merce, and by entitled to charge the cargo with the increased freight, and in the case of insurance it must be made good by the assurers (a).

the law in America.

By Lord Tenterden in his book on Shipping, referring

therein to the

Ordinances of
Antwerp and
Rotterdam.

the sea, the Court of Queen's Bench held, that the

And Lord Tenterden, in his book on Shipping (b), adopts this principle, and refers to the ordinances of Antwerp and Rotterdam, and other authorities, and says, "If by reason of the damage done to the ship, or through want of necessary materials, she cannot be repaired at all, or not without great loss of time, the master is at liberty to procure another ship to transport the cargo to the place of its destination." The question in the case of Shipton v. Thornton (c), to which I have alluded, was whether, where goods shipped under a bill of lading in a general ship, which was prevented from comWhere a ship pleting the voyage in consequence of damage occasioned by was prevented tempest, the master was bound, if he had an opportunity, to from completing the voyage, forward the goods by some other conveyance to their place by damage by of destination, and the Court of Queen's Bench held that he was, at any rate, at liberty to do so at the same rate of freight; and that if the goods arrived at their place of destination by such other conveyance, the shipowner was entitled, on the freighter receiving the goods, to the whole of the freight originally contracted for, although by the second conveyance the goods were carried at a lower rate of freight." The reader is referred to the very elaborate judgment delivered by Lord Chief Justice Denman, in which the opinions of the foreign jurists, and the laws of foreign countries, are fully laid down by the Court. In giving judgment on this case, it was unnecessary for the Court to give any opinion as to what the effect would be if the transhipment could have been made only at a higher rate of freight, neither did it pass any opinion on the effect this would have had on the contract The master is of insurance. Lord Denman says, "It must never be forfor the owner, gotten, that the master acts in a double capacity: as agent to

master was at

liberty to tranship the goods, at the same rate of freight to their place of destination.

agent as well

(a) Code de Commerce, 350; and Chancellor Kent's Comment. 3 Com. 212.

(b) Abb. part 4, c. 4, p. 320, 6th edit.

(c) 9 A. & E. 314.

merchant res

the owner, as to the ship and freight, and agent to the mer- as he is to the chant as to the goods; these interests may sometimes conflict pecting the with each other, and from that circumstance may have arisen goods. the difficulty of defining the master's duty under all circumstances, in any but very general terms. The case now put supposes an inability to complete the contract, in its original terms, in another bottom, and therefore the owner's right to tranship will be at an end; but still, all circumstances considered, it may be greatly for the benefit of the freighter that the goods be forwarded to their destination even at an increased rate of freight, and if so, it will be the duty of the master as his agent to do so. In such, the freighter will be bound by the act of his agent, and, of course, for the increased freight."

And this, according to the French ordinances, and the rule in America would, we have already seen, have to be borne by the underwriters in the case of an insurance.

Besides this case of Shipton v. Thornton, which, though not containing a decision on the subject of insurance, may throw a little light upon it, should such a case of insurance arise under similar circumstances, and at any rate the authorities quoted by the Court have gone a long way to negative what Mr. J. Park says in his Treatise on Insurance; as far as his researches had gone, the amount of authorities leant against the principle and policy of transhipment in case of necessity (a): there are two other cases only that are to be found in our books; and the first is the case of Dick v. Barrell (b), and Mr. J. Park again says "this case is not expressly in point, though it seems to decide it" (c). It was an action on a policy of insurance which was tried before Lord Chief Justice Lee, ship he should at Guildhall. The plaintiff had insured "interest or no A. to B. "ininterest" in any ship he should come in from Virginia London. Beginning the adventure on his embarking on board such ship; the money to be paid though his person should escape, or the ship be retaken. He embarked in the

(a) Park Ins. 613. (b) 2 Strange, 1248.

L

(c) Park Ins. 617.

The plaintiff

insures on any

come in from

to terest or no

interest." The

ship he sails in he goes on springs a leak; board another,

and arrives safe,

but the first

ship was taken,

the master is liable.

Speedwell; but she springing a leak at sea, he went on board the Friendship, and arrived safe in London; but the Speedwell was taken after he left her. And now in this action against the underwriters, the latter was held liable; for the insurance is on the ship the plaintiff set out in, and had that got safe home, and the other been lost, he could not have recovered upon the ground of his having removed his person into that ship in the middle of the voyage.

The next case is that of Plantamour v. Staples (a), which is quite in point, to shew that where a transhipment had taken place into a second ship, the assured were held entitled to recover an average loss when the second ship was afterwards captured, and with all her cargo since condemned. The plaintiffs were merchants at Geneva, and on their own account and risk, by means of their agents at Marseilles, were interested in bullion, and goods, and merchandises shipped there on board the ship Duras, consigned to the plaintiffs' correspondents at Pondicherry, with directions to barter or sell the same on their account, and to make the returns on the same to Europe in other goods, the produce or manufacture of India. The plaintiffs were also interested in the said ship Duras. The ship Duras sailed from France on the voyage insured in June, 1776; and in the outward bound voyage was by bad weather totally lost at the isles of France, in April, 1777. The goods on board sustained damage, but great part of the bullion, and a considerable part of the goods were saved, and without any authority from the underwriters, sent forward in another ship to the plaintiff's correspondents at Pondicherry, who received and disposed of the same, and under the plaintiffs' orders invested the produce in other goods, the produce or manufactory of India, and shipped the same on the plaintiffs' account on board a ship called the "Pere de Famille," bound to France. The Pere de Famille sailed from Pondicherry in August, 1778, and in the course of her voyage, was con

(a) M. 22 Geo. 3, B. R. 1 T. R. 611, note (a), 3 Doug. 1.

demned at the Isles of France, as unfit to proceed to Europe; whereupon the plaintiffs' goods were put on board another ship, called the "Louisa Elizabeth," bound for France which ship, with the plaintiffs' goods on board, sailed for France, and was afterwards taken by an English privateer, and has since, with all her cargo, been condemned. On the 29th August, several of the underwriters on the policy signed a memorandum thereon, whereby they agreed to run the risk on the goods saved as aforesaid, in any other "ship or ships," until their safe arrival in France: but which agreement the defendant and several others of the underwriters refused to sign, or give their consent to it. The defendant hath paid the whole of the average loss, occasioned by the loss of the ship Duras, and by the damage of the plaintiffs' goods then on board. By the capture of the ship Louisa Elizabeth, and of the goods, the plaintiffs sustained a loss of 121. 2s. 9d. per cent. on the sum subscribed on the said policy, which has been paid by all the underwriters who signed the memorandum of 29th August, 1778. The question for the opinion of the Court was, whether the defendant was to pay the said loss of 12. 2s. 9d. per cent. which the plaintiffs had so sustained by the capture and condemnation of the ship Louisa Elizabeth and her cargo; or if not, are they entitled to any, and what return of premium. Lord Mansfield "There is not a particle of doubt. The only question is, whether the shipping to Europe was necessary to the salvage. It is admitted that the defendant is liable upon the voyage to Pondicherry, though the goods were conveyed in another ship: therefore that circumstance makes no difference. The sale of the cargo is also admitted to be necessary. Then how were the proceeds to be admitted to Europe? What was the best way of getting home the money for the benefit of the assured and assurers? Beyond all doubt the best way was to invest it in other goods. Therefore, that being done which was the best to be done, the underwriters are liable." Buller, J.—“There is no case which expressly decides that the captain may invest the

produce of the goods saved." But in the case of Mills v. Fletcher (a), it was decided, that the captain has a general power, and is bound, in duty, to do the best for all concerned. Postea to the plaintiffs.

I may venture to make an observation, with respect to this case, and the previous one of "Shipton v. Thornton,” in which Lord Denman says, "the captain is agent for the owners of the goods, as well as of the owner of the ship in respect to ship and freight, and therefore it would appear probable that had there been a question in the latter case respecting an assurance, after a loss had happened of the second ship, and of the goods into which they had been transhipped, in the same manner as in the case of Plantamour v. Staples, the underwriters would be liable, on the principle that the master's duty called upon him to do every thing that was the best for all concerned.""

1. The time at which the risk

SECTION VI.

BEGINNING THE ADVENTURE UPON THE SAID GOODS, ETC.

The head of this sixth section includes that portion of the policy which states the time at which the risk commences both on the said "ship," and the said "goods" laden on board, and when they end: viz., "Beginning the adventure upon the "said goods and merchandises," from the loading thereof aboard the said ship, at , upon the said ship, &c. and so shall continue and endure during her abode there upon the said ship, &c. And further, until the said ship, with all her ordnance, tackle, apparel, &c., and goods and merchandises whatsoever, shall arrive at

, upon the said ship, &c., until she hath moored at anchor in good safety, and upon the goods and merchandises, until the same be there discharged and safely landed."

In most of the commercial countries abroad it is particu

(a) Doug. 231.