was not to in

troduce any matter upon

which the .po

but in direct variance with its words, was

held to be in

admissible to

contradict the

evidence which place and so slung. The objection then to the parol evidence was this, that it was not to explain any ambiguous words in the policy, any word, which might admit of doubt, licy was silent, nor to introduce matter upon which the policy was silent, but was at direct variance with the words of the policy, and in plain opposition to the language it used. That, whereas, the policy imported to be upon the ship, furniture, and apparel generally the usage is to say, that it is not upon all the furniture and apparel, but only upon part, excluding the boat. Usage may be admissible to explain what is doubtful, it is never admissible to contradict what is plain. The cases are all in Starkie upon Evidence (a). The authority referred to in the argument, as to goods lashed on deck, seems to be plainly distinguishable, and to proceed upon a different principle.

terms of the policy.

Usage may be explain what is

admissible to

doubtful, but

not to contradict what is plain.

"On an insurance upon goods,' the underwriter is entitled, in general, to expect that they shall be carried in that part of the ship usually appropriated to the stowage of goods, not in a more dangerous part; or, if they be goods which ought not to be placed in the ordinary stowage, but in a more perilous situation, he ought to be apprised, either of the goods, or of the part of the ship in which they are to be put. If he is left to suppose that they are ordinary goods, he will naturally suppose they will be placed where ordinary goods are placed, and that they will incur the hazard only of ordinary goods; and if he were to be made answerable for extraordinary peril, he would be answerable for a peril which he had not contemplated, and for which he had not received an adequate compensation. This, it seems to us, is the true principle upon which evidence of usage is admitted as to goods lashed on deck. They are not in the part of the ship where goods are usually carried, they are in more than usual peril, and a usage that they are not covered by an ordinary policy on not in the place goods, but that they require a distinct explanation to the underwriter, of the part of the ship in which they are to be

The principle

upon which

usage may be given in evidence as to

goods "lashed

on deck," is that they are

where goods are usually

(a) Pp. 754, 759, 3rd edit.

stowed. And

the underwriter

have notice of

the fact, or of the character of the goods.

carried, or (where that will imply the same information) of the nature of the goods, is not at variance with any part of is entitled to the policy, is essential to that information which the underwriter ought to receive, to enable him to estimate the risk and calculate the premiums, and is a portion of that fairness which ought to be rigidly observed upon all these contracts. The policy was upon goods generally, and the usage explains what description is intended, viz., of ordinary, not of extraordinary danger. We are, therefore, of opinion, that the evidence of usage was properly rejected.

In the case of Pelly v. Governor & Co. of the Royal Exchange (a), the plaintiff being part owner of the ship Onslow, an East India ship, then lying in the Thames, and bound on a voyage to China and back to London, insured it at and from London, to any ports or places beyond the Cape of Good Hope and back to London, upon the "body, tackle, apparel, ordnance, munition, artillery, boat and other furniture of and in the said ship." The ship arrived in the river Canton, in China, where she was to stay to clean and refit, and for other purposes. Upon her arrival there the sails, yards, tackle, cables, riggings, apparel and other furniture were by the captain's order taken out of her and put into a storehouse called a bank-saul, built for that purpose on a sand-bank or small island, lying in the said river near one of the banks called Bank-saul Island, in order to be there repaired, kept dry and preserved, till the ship should be heeled, cleaned and refitted. Some time after this a fire broke out in the bank-saul belonging to a Swedish ship, and communicated itself to another, and that to the one belonging to the Onslow, and consumed the same, together with all the sails, yards, &c. belonging to the Onslow that were therein. It was stated, that it was the universal and well known usage, and has been so for a great number of years, for all European ships which go to China, except Dutch, when they arrive near this Bank-saul Island, in the

(a) 1 Burr. 341.

The rigging

and tackle of a

ship are put on shore during a burnt by acci

repair, and are

dent, the underwriters

are liable.

river Canton, to unrig the ships, and take out their sails, yards, tackle, cables, rigging, apparel and other furniture; and to put them on shore in a bank-saul as the Onslow had done. This is for the common and general benefit of the owners of the ship, the assurers and assured, and all persons concerned in the safety of the ship. The ship arrived safe in the Thames, after being fresh rigged, &c. for the voyage. The question for the opinion of the Court was, whether the insurers are liable to answer for this, so happening upon the bank-saul, within the intent and meaning of this policy. The Court took time to consider, and then, Lord Mansfield-"By the express words of the policy the defendants have insured the tackle, apparel and other furniture of the Onslow from 'fire,' during the whole time of her voyage, until her safe return to London without any restrictions. Her tackle, &c. were inevitably burnt in China, during her voyage, before her return to London. The event then, which has happened, is a loss within the general words of the policy; and it is incumbent on the defendant to shew, from the manner in which this misfortune has happened, or from other circumstances, that it ought to be construed a peril which they did not undertake to bear. If the chance be varied, or the voyage altered by the fault of the owner or master of the ship, the assurer ceases to be liable; because he is only understood to engage, save from fortuitous dangers, provided due means are used by the trader to obtain that end. But he is not in fault, if what he did was done in the usual course, and for just reasons. The assurer, in estimating the price at which he is willing to indemnify the trader against all risks, must have under his consideration the nature of the voyage to be performed, and the usual course and manner of doing it. Every thing done in the usual course must have been foreseen, and in contemplation at the time he engaged; he took the risk upon a supposition that what was usual or necessary should be done. In general, what is usually done usually done by by such a ship, with such a cargo, in such a voyage, is

If the risk be varied by the fault of the owner or master of the ship, the assurer is discharged.

Whatever is

every ship in a particular

derstood to be

referred to by every policy,

and to make a

part of it as

much as if it

understood to be referred to in every policy, and to make part of it, as much as if it was expressed. The usage voyage is unbeing foreseen is rather allowed to be done, than what is left to the master's discretion, upon unforeseen events: yet, if the master ex justá causá, go out of the way, the insurance continues. Upon these principles it is difficult to frame a had been exquestion which can arise out of this case, as stated. The pressed. only objection is, that they were in the bank-saul instead of in the ship; upon the land, not at sea, or upon water: and being appurtenant to the ship, losses and dangers on shore could not be concluded. The answer is obvious: first, the words make no such distinction. Many accidents might happen at land even to the ship. Suppose a hurricane to drive it a mile on shore, or an earthquake may have a like effect; suppose the ship to be burnt in a dry dock, or suppose accidents to happen to the tackle upon land, taken from the ship while accidentally and occasionally refitting, as on account of a hole in her bottom, or other mischance; these are all possible cases. But what might arise from an accidental repair of the ship is not near so strong as a certain necessary consequence of the ordinary voyage, which the parties could not but have in their direct and immediate contemplation. Here the defendants knew that the ship Where the must be heeled, cleaned and refitted in the river Canton; the risk, "ex they knew that the tackle would be then put into the justà causà," the liability of bank-saul; they knew it was for the safety of the ship, and the assurer prudent that they should be put there. Had it been an accidental necessity of refitting, the master might have justified taking them out of the ship, ex justá causá: but describing the voyage is an express reference to the usual manner of making it as much as if every circumstance had been mentioned. Was the chance varied by the fault of the master. It is impossible to impute any fault to him. Is this like a deviation? No, it is ex justá causa, which always excuses. Had the assurers in this case been asked, whether the tackle should be put in the bank-saul? they must, for their own sake, have insisted that it should.

They

master varies

continues.

would have had reason to complain, if from their not having had them put there, a misfortune had happened. In such a case, the master would have been to blame, and by his fault would have varied the chance. They have taken a price for standing in the plaintiffs' place as to any losses he might sustain in performing the several parts of the voyage, of which this was known and intended to have been one. Therefore, we are all of opinion, that in every light, and in every view of the case, in reason and justice, and within the words, intent and meaning of this policy, and within the view and contemplation of the parties to the contract, the assurers are liable for this loss."

In an insurance upon a Greenland ship, it became a question whether the lines and tackle employed in the fishery in those seas could be recovered under a policy made upon the "ship, tackle and furniture." It was the case of Hoskins v. Pickersgill (a), and came before the Court upon a motion for a new trial, and the Judges were unanimously of opinion that they were not protected by the policy not being part of "the ship's tackle or furniture." And in the case of Gale v. Laurie (b), C. J. Abbott says, "these stores are not considered as covered by an ordinary policy on the ship.

"But insurance is a matter of contract, and the construction of the contract depends in many cases upon usage. And the construction of a policy can furnish no rule for the construction of this act of Parliament, which was passed for purposes of a different nature," (53 Geo. 3, c. 159).

But the Courts of law will not extend the constructions which they have put upon this contract, so as to allow a person to recover for the loss of that which he never intended to insure for instance, it cannot be allowed to the owner of a ship who has insured the "ship" merely that he should be capable of recovering the loss of a cargo laden thereon, or extraordinary wages paid to the seamen, or provisions con