« ΠροηγούμενηΣυνέχεια »
360, Blackhurst v. Cockell.
By Lord Mansfield, in PawCowper, 790;
son v. Watson,
see Addenda to
at eight, between one and three in the afternoon the policy 3 Term Rep. was executed; the ship was "warranted well, Dec. 9, "1784;" the Court considered that the warranty was satisfied if the ship were well at any time on that day, and the nonsuit was set aside. It has been said, that the warranty must be literally complied with; and, in conformity with this rule, if a man warrants that a ship shall depart with twelve guns, and it departs with ten only, it is contrary to the condition of the policy (r). To make the written instructions valid and binding, they must be inserted in the policy. It has been decided, that a warranty on the margin of the instrument is of as much force as if written in the body. But a written paper folded up in the policy will not create a warranty, nor a slip of paper wafered to it, nor a paper detached from the policy; these memorandums are only held in the light of representations, which, unless made fraudulently, or false in a material point, will not vitiate the policy.
"Beginning the adventure upon the said goods "and merchandizes from the loading thereof aboard "the said ship at the port of," &c.
thon; 1 Term.
Ibid, Bize v. Fletcher; Cowper, 785, Pawson v Watson.
7. Duration of
This description of the commencement of the risk is construed so as to accord, if possible, with the inten- Voyage. tions of the parties. But the chance which the underwriter has elected to abide by, will not be enlarged by the Courts where the policy is explicit. As where the risk was to commence from the loading of the goods "on the coast of Brazil," but, in effect, the cargo was taken in at the Cape of Good Hope; in this case the adventure could only attach after a loading of goods on
(r) With respect to the warranty against capture or confiscation, see Park, p. 86, where the authorities on the subject may be found.
4 East, 130, French.
- Robertson v.
15 East, 46, Homeyer v. Lushington.
2 Taunton, 416, Spitta v. Wood
4 Taunton, 628, Langhorn v.
the coast of Brazil. So, where the place of loading was to be at Gottenburgh, goods put on board previously in London were not protected by the policy.
And where the voyage was mentioned in the policy generally, the Court entertained the same opinion, there being no evidence to warrant a different construction. Handy; 2Maule But where the description of the voyage was "from & Selwyn, 106, Mellish v. All-Landscrona to Wolgast," and the goods though shipped at Gottenburgh had been partly taken out at Landscrona, landed on the quay, and replaced in the ship, and the custom-house officers adjusted the duties there; it was held, that the whole cargo had been virtually reloaded at Landscrona, and that it was to be considered as the loading port according to the policy, and on account of this reloading it was that the distinction between Spitta and Woodman and the case in question arose.
16 East, 176,
And where a policy, declared to be in continuation of former policies, stated the voyage to be at and from Gottenburgh to any port or ports in the Baltic, but the goods were in fact loaded in Virginia; yet as one of these former policies had the words "at and from
Virginia," and that before the Court contained the statement of continuation, even although the defendant, the underwriter, was not one of those who subscribed the former policies, the plaintiff was permitted to recover. So again, where the assured had carefully inserted the word "wheresoever," after" on board the said ship;" Lord Ellenborough said, that they had industriously laboured to withdraw themselves from the possibility of any cavil arising out of the construction or misconstruction of former cases, and that the words were most effectual for attaining the desired object.
And so shall continue and endure," &c.
"And further, until the said ship, &c. shall be "arrived at, upon the said ship, &c. until she "hath moored at anchor twenty-four hours in good
safety, and upon the goods and merchandizes "until the same be there discharged and safely "landed."
1 Sir William Blackstone
It is sometimes necessary to show when the homeward risk commences, and in order to do that, the determination of the outward risk must be fixed. Unless otherwise provided for, it seems, that after a ship, has been moored for twenty-four hours in her first port, the risk will determine. And thus in the case of a vessel insured from London to Jamaica generally, a special jury decided, that the outward risk ended as soon as the ship had moored in any part of the island, and that it did not continue unto the last port of her delivery; although, with respect to goods, the risk survives upon Barrass v. Lonthem until they are safely landed.
Rep. 417, Camden v. Cowley.
And the safety of the vessel is a question of fact, has she been for twenty-four hours moored in good safety? Therefore where, after that time, a ship was seized for an act of barratry by the master in smuggling some brandy, the Court held the underwriters discharged, for, were it otherwise, the insurer's accounts would never be 1 Term Rep. 252, Lockyer v. settled, nor could he be finally discharged while the ship offey was in existence; and some reasonable limitation in Sending home point of time must be laid down to prevent the confusion damaged goods which must arise if the law were unsettled in that respect. But the words "good safety," must be attended to; they mean the opportunity of unloading and discharging the cargo; and so, where a ship was arrested for the purpose of performing quarantine, although moored for several days, yet being thus detained, the
does not put an end to the adventure,6 Taun
ton, 3, Phillips Champion."
2 Strange, 1243, insurer was held liable for an accident by fire which Waplesv. Eames. destroyed her.
277, Minett v. Anderson;
15 East, 46,
And thus it is again, in cases of embargo, detention, and condemnation.
Where a ship had been for some days at a wharf, with her sails unbent, topmasts struck, three anchors out, and lashed to another ship, but outside the tier, there not being room for her in the inside, and she was then forced adrift and lost; Lord Kenyon held this a sufficient Angerstein v. mooring, and nonsuited the plaintiff, the assured.
Park, p. 55,
Leigh v. Ma
ther, Park, p.
The goods, however, must be discharged and safely landed. And in this respect, as we have just seen, a policy upon the cargo differs from that upon the ship; but where a vessel was moored at anchor for the purpose of unloading, and where the only reason for the final disposition of the freight was the intervention of a new agreement, the underwriters were held discharged.
Nevertheless, whether the insurance be on ship or freight, usage is always respected; and so where the policy was on goods from St. Petersburg to London till they should be discharged and safely landed, and the property, having arrived safely in the Thames, was da2 Bosanquet & maged in the lighter, that being the customary mode of Puller, Hurry v. Royal landing the goods, the underwriters were considered to Ex. Assurance. be liable. Again, the same doctrine was held where 1 Burrow, 348, goods were put into a storeship, and lost, that being Tierney v. Etherington, cited there.
a manner of unloading and re-shipping, and it was not a supension of the policy. And so it was where the ship's tackle, being put into a warehouse, was inevitably burnt, that act of depositing the sails, &c. being done in the usual course; and the insurer must be taken to be cognoway: 1Camp. nizant of the usage.
Id. 341, Pelly
505, n. Ougier v. Jennings: and see 1 Campb. 503, Vallance v. Dewar; Id. 508, n. Kingston v. Knibbs.
But if, notwithstanding the usage, the owner choose
to bring down his own lighter for the reception of the goods, or if he tell a public lighterman that he will see to the landing of the goods himself, he takes the complete control over them, and renounces the benefit under the policy.
Mr. Justice Buller had taken this distinction between public and private lighters in a case which came before him, and his decision had been acquiesced in.
2 Bosanquet &
Rucker v. London Assurance.
And it shall be lawful for the said ship, &c. in 8. Deviation. this voyage, to proceed and sail to, and touch and "stay at any ports and places whatsoever, &c. "without prejudice to this insurance.”
The question of deviation, upon which so many points have arisen, comes naturally before us under the above clause, and as a general principle, it may be observed that policies are very strictly adhered to in this respect. For the altering, even in a very slight degree, the nature of the voyage is in effect creating a different contract, and the underwriter may answer with justice, non hæc in fœdera veni.
531, Beatson v.
Calling at a place to procure a Mediterranean pass, putting into a port which the ship must of necessity See Park, p. pass by, and although no damage ensue, neglecting to discharge a cargo at a port according to the terms of the the authorities. policy, are acts of deviation. Ports must be touched at in the order they are mentioned in the policy, and 6 Term Rep. although there be a liberty to touch at certain places Haworth. generally, such permission must be consistent with the termini of the voyage. Leave to touch "at any port in "Portugal," " to call at all or any of the West India "islands,"" to trade at all ports, &c. in the voyage,' must be so restrained as not to imply a licence for deviating from the track pointed out by the policy, the object being only to protect deviations in the course of a Maule & Selthe voyage insured.
" See Park, 444.
See 16 East,
312, Mellish v.