course which the master adopted was that which was the most advisable in the circumstances in which he found himself placed. The only question therefore is, whether the vessel was by perils of the sea prevented from taking on board the rest of her cargo, and the voyage justifiably abandoned. The cases relied upon on moving show only that a mere delay or retardation of the voyage does not constitute such a loss as to render the underwriters on freight liable. It resolves itself into a question of bonâ fides in each case. In Phillips on Insurance, 3d edit., § 1142, it is said: "Insurance of freight covers the risk of loss of that subject by reason of a loss of either the ship by the perils insured against, whereby it is prevented from transporting the cargo, or a loss of the goods by the perils insured against, whereby the earning of freight by the transportation of them is prevented. Abbott, C. J., and his associates (in Mordy v. Jones, 4 B. & C. 394 (E. C. L. R. vol. 10), 6 D. & R. 749 (E. C. L. R. vol. 16)), held a different doctrine in case of the vessel's putting back to Kingston, the port of departure in Jamaica, on account of sea-damage and loss of freight on part of the cargo so injured by being wet with sea-water that it was prudently and justifiably sold there on account of danger of spontaneous ignition if it had been carried on, and because the expense of delay to wash and dry it would have exceeded the amount of the freight of it. The insurers were held not to be liable for this loss, the ground stated being, that, 'if it should be held that the underwriter would be liable, it would open a temptation to a master to sail away, under like circumstances, instead of stopping until the cargo could be reshipped.' That is to say, if the Court should decide for the assured in this case, when the master's proceeding was confessedly justifiable, it might tempt *some other master to sell or leave part of the cargo when it was not justifiable! The decision, supported [*274 only by such a reason, certainly weighs very little against what seems to be a plain, and is, at least now, a well-established doctrine." Mr. Arnould,-Arnould on Insurance, 2d edit., Vol. 2, p. 978, adopts the same view of that case. In Everth v. Smith, 2 Selw. 278, the expense of the unavoidable detention of the ship exceeded the amount of the freight and Lord Ellenborough, in giving judgment, said: "In this case, the only inconvenience that has arisen is to be attributed to the protraction of the adventure; but that was decided in Anderson v. Wallis, 2 M. & Selw. 240, and M'Carthy v. Abel, 5 East 388, not to constitute a loss." Brocklebank . Sugrue, 1 M. & Rob. 102, is a mere repetition of the doctrine of Mordy v. Jones. Moss v. Smith, 9 C. B. 94 (E. C. L. R. vol. 67), is equally wide of the present question: all that was decided there was, that mere inability to send on the entire cargo is not a case of constructive total loss on freight. In the present case, the vessel was by perils of the sea disabled from carrying the cargo at all; and that disability existed until the termination of the voyage. That was precisely the state of things in Devaux v. l'Anson, 5 N. C. 519 (E. C. L. R. vol. 35), 7 Scott 507. There, the plaintiff, the owner of a ship, effected a policy on freight at and. from the Coromandel coast to Bourbon: the ship put into a port on the Coromandel coast for repairs: the plaintiff purchased a cargo and had it, ready to be sent on board, about seven miles from that port: the ship was lost by an accident in going out of dock: the policy covered perils of the C. B. N. S., VOL. XI.-12

seas and all other perils, losses, and misfortunes: and it was held, that the plaintiff's interest in the profit of conveying the cargo was properly described as freight; that, the cargo being ready when the ship was about to leave the dock, the risk attached; *and that the loss was a loss within the terms of the policy.

*275] [ERLE, C. J.-The master was prevented from shipping the

remaining 120 tons of ore by reason of the wind blowing from the westward. Surely "perils of the sea" means something more than the ordinary fluctuations of the wind and weather.] The loss of the anchor and the injury to the windlass were occasioned by the extraordinary weather the vessel was exposed to. It cannot, of course, be said that it was impossible for the master to go back for the rest of the cargo. The same sort of possibility physically existed as that sug. gested by Maule, J., in Moss v. Smith. But the question is, was he bound to go back? and were the charterers bound to keep the 120 tons of copper ore until the vessel came back from Swansea to take it? Or, suppose the vessel were lost on going out the second time, or on her return from that voyage, could the underwriters on this policy have been called upon? Assuming it to be a question of reasonable degree, was the master bound to go to the nearest practicable port, Plymouth, for instance,-to get his lost anchor replaced and his windlass repaired? [ERLE, C. J.-No doubt he would, if the distance were not unreasonably great.] The authorities bearing upon this point are extremely scanty. No doubt, it must be a case of urgent necessity which will justify the master in abandoning the voyage: Cannam v. Meaburn, 1 Bingh. 243 (E. C. L. R. vol. 8), 8 J. B. Moore 1 27(E. C. L. R. vol. 17). In Worms v. Storey, 11 Exch. 427, 430,† Parke, B., says: "Under a charter-party containing such an exception, if the vessel sails in a seaworthy state, and in the course of the voyage is damaged by perils of the sea, the owner is not bound to repair it but, if he does not choose to repair, he ought not to go to sea with the vessel in an unseaworthy state, and so cause a loss of the cargo. He ought either to repair or stop." The question of reasonable or unreasonable *delay is discussed in 2 Phillips on *276] Insurance, 3d edit., §§ 1451, 1452. Unreasonable delay amounts to deviation: Mount v. Larkins, 8 Bingh. 108 (E. C. L. R. vol. 21), 1 M. & Scott 165 (E. C. L. R. vol. 28). If the plaintiff is not entitled to recover in this case, it is because the risk is still continuing and the voyage uncompleted: and, if the risk is still continuing, it is because there is no deviation.

Bovill, Q. C., and Archibald, in support of the rule. The material. facts are these:-The Greenwich having arrived at Hondeklip Bay and taken in a portion of her homeward cargo, but not having entirely discharged her outward cargo, a storm arose which rendered it necessary for her to quit the roadstead with the loss of an anchor and a damaged windlass; and she accordingly proceeded to St. Helena for the purpose of repairing the damage. Arrived there, and finding that the necessary repair could not be effected, the master thought it more prudent to discharge the remainder of his outward cargo at that port and to proceed to Swansea with so much of the copper ore as he had received on board. Assuming that all this was done bonâ fide, it was a voluntary abandonment of the voyage. The loss is not to

be thrown upon the underwriters on freight merely because by reason of the accidents of navigation the expense incurred in earning the freight would exceed the amount of the freight when earned. There is no such head of loss known to the law: Everth v. Smith, 2 M. & Selw. 278. In Atkinson v. Ritchie, 10 East 530, the master was held not to be justified even by a reasonable and well-grounded apprehension of a hostile embargo, in abstaining from taking the cargo on board. He must encounter the danger. The case of Schilizzi v. Derry, 4 Ellis & B. 873 (E. C. L. R. vol. 82), well illustrates the duty which the owner owes to the charterer. There, the declaration [*277 *stated, that, by charter-party between the plaintiff and defendant, it was agreed that the defendant's ship, then in London, should sail to Galatz or Ibrail, or so near thereunto as she might safely get; and there load a cargo from the plaintiff's factor, and therewith proceed to a port in the United Kingdom, or between Havre or Hamburgh, inclusive, the act of God, &c., and all and every other dangers and accidents of the seas, rivers, and navigation of whatever nature and kind soever during the voyage always mutually excepted; that the ship was not prevented by any of the excepted causes from proceeding with and completing her said outward voyage; yet that the defendant made default in causing the ship to sail and proceed, with all convenient speed on her said outward voyage, and before the said outward voyage was completed wrongfully caused the ship to deviate from the course of her said voyage, and wholly abandon the said voyage. The defendants pleaded,-first, that they were not guilty of the alleged breach of the charter-party, secondly, that they were prevented by the excepted causes, to wit, by the dangers and accidents of the seas, rivers, and navigation, from proceeding with and completing the said outward voyage; upon which pleas issues were taken. It appeared that the ship reached the mouth of the Danube on the 5th of November. Galatz lies ninety-five miles up the Danube, and Ibrail twenty miles higher. At the mouth of the Danube is a bar, upon which, at the time of the arrival of the ship, there was not water sufficient to allow her to pass. On the 11th of December she sailed from the mouth to Odessa (one hundred miles distant), and there took in a cargo from other parties. It would not have been safe for her to remain off the mouth after the 11th of December: and Odessa was the nearest safe port. On the 7th of January following, there was * *water enough on the bar of the mouth of the Danube to enable [*278 the ship to go up to Galatz and sail with a cargo out of the river. And the Court held that both issues should be found for the plaintiff; for that the voyage was not completed, even if the vessel was prevented by any of the excepted causes from completing it; and that no such prevention was shown, but, at the most, circumstances of the excepted kind delaying the completion. Wightman, J., there said: "No doubt, the obstruction was temporary. The impossibility of waiting off the harbour's mouth does not determine the obligation to complete the voyage." And Crompton, J., said: "It would be most dangerous to hold that a temporary obstruction puts an end to the obligation." So here, the circumstance of a strong westerly wind compelling the Greenwich to depart from Hondeklip Bay with half her cargo on board, did not justify the master in neglecting to return

when the weather moderated to take in the remainder.

Anderson v. Wallis, 2 M. & Selw. 240, and Brocklebank v. Sugrue, 1 M. & Rob. 102, are authorities to the same effect as Everth v. Smith and Schilizzi v. Derry. In Moss v. Smith, 9 C. B. 94 (E. C. L. R. vol. 67), a ship valued at 12,000l. was insured from Valparaiso to England; the freight, valued at 40007, was also insured by a separate policy: the ship, having sailed with a full cargo, consisting of 800 tons of merchandise, was compelled by stress of weather to put back to Valparaiso, where the master, finding upon survey that to repair her so as to bring home the entire cargo would cost a sum exceeding the value of the freight, though less than the value of the ship when repaired, sold her and it was held that this was not a total loss of either ship or freight. That could be only on the ground that freight might have been earned. In the course of the argument, Cresswell, J.. asks, "Does an underwriter on freight undertake to pay *if the *279] assured acts prudently in declining to earn freight?" And, in giving judgment, the same learned judge says: "I never heard of such a thing as a total loss of freight by perils of the sea, because the ship has sustained sea-damage to an amount exceeding the value of the freight. What is the nature of the contract between the shipowner and the merchant whose goods he contracts to carry on freight? The shipowner engages to carry the goods from the port of loading to the port of discharge: his contract would be absolute, but for the exception introduced into the bill of lading,-unless prevented by perils of the sea. Now, when is the shipowner said to be prevented by perils of the sea from fulfilling the contract he has entered into? When the ship is, by a peril of the sea, rendered incapable of performing the voyage. A ship is not rendered incapable of performing the voyage when she is merely damaged to an extent which renders some repairs necessary." Driscol v. Passmore, 1 Bos. & P. 200, is also an authority in point. There cannot be a constructive loss of freight. There may be a loss of freight in case of the utter total or partial loss of the goods, or of such damage to the goods, by a peril insured against, as would justify their sale. But that does not arise from the mere circumstance that it will cost more to carry them to their des tination than the value of the freight. Here, there was clearly nothing to justify an abandonment of the adventure.

Steuart v. The Greenock Marine Insurance Company, 1 Macqueen 328, Benson v. Chapman, 2 House of Lords Cases 696, and Fawcus v. Sarsfield, 6 Ellis & B. 192 (E. C. L. R. vol. 88), were also referred to. Cur, adv. vult. WILLES, J., now delivered the judgment of the Court:

*This was an insurance upon "charter freight." The charter

*280] was for a voyage from the Cape to Hondeklip Bay, an open roadstead 180 miles up the coast, there to load a cargo of copper ore, and to proceed therewith to Swansea, at a freight of so much per ton.

The vessel proceeded to Hondeklip Bay, received part of the cargo, and was ready to complete her loading by taking on board other 120 tons which were ready. A northwest storm came on, which obliged her to put to sea. In doing so the cable was slipped, and the spindle of the capstan was bent, so as to be useless until it was set straight. The remainder of the cargo could not be taken on board without

repairing the damage. The vessel did not run for the Cape, where repairs could have been obtained. She beat about in the offing for forty-eight hours, when the wind changed to southwest, and the cur. rent set to north. She then ran for St. Helena, 1800 miles off-the master, according to the verdict, expecting to be able to repair there, and intending to return for the rest of the cargo. Upon arriving at St. Helena, it was found that the damage could not be repaired there. when the master resolved to proceed to Swansea, which he did with a cargo short by the 120 tons not shipped. The jury found that the master acted throughout as a prudent owner uninsured would have done. The question is, whether there was a total loss of the freight upon the 120 tons by perils of the sea. We are of opinion that there

was not.

The damage done was not of an extraordinary character. It was capable of repair, and the means of repair were within a reasonable distance. If the master, instead of going to St. Helena, 1800 miles off, on the way home, had proceeded to the Cape, 180 miles off, the damage could have been repaired, and the freight in question earned. The proximate cause of the loss was, the course which the [*281 master pursued in going home instead of repairing at the Cape and then returning for the rest of the cargo. All that the finding of the jury amounts to, is, that the master, in going to St. Helena, made the choice which a prudent man uninsured would have made, of a place at which to repair. But that choice, though apparently prudent, turned out to be mistaken; and so, and not by the sea-damage, which in itself was capable of repair, and ought to have been repaired if it reasonably could, the loss happened.

In effect, the master lost his freight by reason of his not proceeding to the Cape to repair, and then going to Hondeklip Bay to take in the residue of the cargo: and there was no peril of the sea which prevented him from doing that. If the wind had continued north west, he would have done so, and earned the whole freight: and the under writers do not insure against the consequence of a delay caused by a change of the wind.

Reliance was placed by the plaintiff upon a passage in Mr. Phillips's very able work on Insurance, § 1142, where he says that "insurance of freight covers the risk of loss of that subject by reason of a loss of either the ship by the perils insured against, whereby it is prevented from transporting the cargo, or a loss of the goods by the perils insured against, whereby the earning of freight by the transportation of them is prevented." He goes on to dispute the decision in Mordy v. Jones, 4 B. & C. 394 (E. C. L. R. vol. 10), where it was held that the underwriter was not liable for a loss of freight which might have. been earned, but at an expense in drying the goods sea-damaged which would have exceeded the freight: and he particularly objects to the principle of Lord Tenterden's judgment, which was founded in part upon the danger of encouraging captains to go home *and charge underwriters; but he disputes it only upon the ground [*282 that in Mordy v. Jones, according to the learned author's view, the part of the cargo was virtually lost. We must, however, observe that in this respect he appears to have mistaken the facts of that case The goods could not be made fit to be carried, except at an expense