it appeared that there had been no default of the master in seeking such instructions, and that the failure to obtain them was actually due to violence of the weather, judgment was given for the plaintiff. In a case where failure to join convoy or to obtain the necessary sailing orders is attributable to neglect or default on the part of the master, the underwriter will be discharged (ƒ).

In Williams v. Shee (g), where a vessel stopped behind to complete her loading instead of leaving with the convoy, this was held to be a deviation which voided the policy. Where a vessel, however, becomes separated from convoy by storm, and is captured whilst out of the direct course, but seeking to resume it, the underwriters are not discharged (h).

In Christie v. Secretan (i), the broker stated that the ship would sail under convoy, and this representation, in the absence of evidence of further conversation on the subject, was held to be binding.

"Cables cut away or anchors slipped to avoid being separated from convoy are not the subject of general average contribution in this country, though they are so on the continent, and in the opinion of Mr. Phillips it would be so in the United States" (. Expenses consequent on waiting for convoy are not ordinarily to be treated as general average, but if the circumstances be such as to make the delay, or the protection of a man-of-war an exceptional necessity, the case would apparently be otherwise (k).

Under the Convoy Act of 1798, now expired, stringent provisions were made against sailing without convoy, leaving convoy, sailing without proper signalling flags, omitting to destroy sailing instructions in the face of imminent risk of capture, &c. It might be supposed that a penalty for wilfully leaving convoy was a superfluous provision, but naturally the speed of the convoy would be reduced to the capacities of the dull sailers, and there is always a temptation for the master of a

(f) Taylor v. Woodness, Park's Insce., 8th ed. p. 707.
(g) 3 Camp. 469.

(h) Harrington v. Halkeld, Park's Insce., 8th ed. p. 638.
(i) 8 T. R. 192.

(j) Arnould's Insce., 5th ed. p. 830.

(k) Ibid. 844.

fast vessel, impatient of the slow progress made, to spread all sail, and set the risk of capture, on the one hand, against the certain advantage of being first in the market, with the saving of wages and provisions, on the other.

The Naval Prize Act, 1864, § 46, provides that if any person, while in command of a ship under convoy, wilfully disobeys the commands of the commander of the convoy, or without leave deserts the convoy, he shall be liable to a penalty not exceeding 5007., and imprisonment not exceeding one year. (Vide Appendix, p. 449.)

In Arnould's treatise on marine insurance (1), the following are enumerated as being the five requisites essential in respect of the warranty to sail with convoy, viz.: (1) The sailing must be with the regular convoy appointed by government; (2) from the place of rendezvous appointed by government; (3) it must be convoy for the voyage; (4) under proper sailing instructions received from the officer in command; and (5) the vessel must depart with convoy, and continue with it till the end of the voyage, unless separated by necessity (m). But the proposition that the vessel must continue with convoy to the end of the voyage should be read in conjunction with D'Equino v. Berwicke, mentioned above.

It may be convenient to observe in this place that crew's wages and provisions whilst a vessel is awaiting convoy or change of convoy, or whilst taking refuge in port in order to avoid imminent risk of capture, are not recoverable in general average. Seeing that such delays may, however, be on occasion indefinitely prolonged, this contingency will, no doubt, be kept in view by shipowners when entering upon contracts of affreightment.

RETURN FOR ARRIVAL: FOR SAILING, WITH CONVOY.-In Simond v. Boydell (n), an insurance had been effected on sugar from Grenada to London, "to return eight per cent. if the ship sails with convoy and arrives." The vessel having got aground in the Downs, some of the sugar was washed overboard and other was damaged. The underwriters claimed that no return was due in respect of the value of the sugar which did not, within

(7) 5th ed. p. 608.

(m) But see as to (5), D'Equino v. Berwicke, p. 391, supra.
(n) Doug. 255.

the meaning of the policy, arrive. Lord Mansfield decided that the clause must be held to refer to the arrival of the ship, and not merely of the cargo. If it had been meant that no return should be made unless all the goods arrived safe, the clause should have been ". . . . if the ship arrive with all the goods," or ". . . . if the ship arrive safely with all the goods." "It is amazing," said the learned judge, "when additional clauses are introduced, that the merchants do not take some advice in framing them or bestow more consideration upon them themselves. I do not recollect an addition made, which has not created doubts on the construction of it." In this case, however, as in others, the ambiguity was in favour of the merchants; for the rule of law is in parallel cases to construe such ambiguities of construction against the grantor of the contract.

In another case (o), where a similar clause had been employed in an insurance on freight, and the vessel was captured, and subsequently recaptured and delivered up against payment of salvage, the Court gave a similar judgment, ordering payment of return on the whole amount insured. If the clause was intended to bear the meaning which the underwriters claimed for it, the Court observed, it should have had added to it "safely from the enemy," or some such words.

"Every arrival of the ship at her port of destination,” said Lord Kenyon, "would not be an arrival within the fair construction of this memorandum; such, for instance, as an arrival. in the possession of an enemy at a neutral port; or an arrival at her port in England as the property of other persons after a capture. But in order to satisfy the meaning of the memorandum, it should be an arrival at her destined port in the course of her voyage." In Horncastle v. Haworth (p), the ship had arrived but was captured in port before her discharge was completed. The policy contained a return-clause as above, and the underwriters were held liable for the return, notwithstanding their payment of total loss. In another case (q), however, where it was provided that a return should be made for convoy," and the assured claimed the return as well as a total loss, it was

(0) Aguilar v. Rodgers, 7 T. R. 421.

(p) 2 Marshall's Insce., 681. See also Dalgleish v. Brooke, 15 East, 295. (2) Langhorn v. Allnutt, 4 Taunt. 511.

found by the jury that no return was due, on the ground that the assured "had a right, in case of a total loss, to add the whole amount of the premium to his invoice and so would recover it in that shape, included in the total loss,"—a proposition which seems to call for some explanation (r).

If a return for sailing with convoy be stipulated for, and, owing to breach of warranty, e.g., sailing out of date (s), the policy become invalid, the return will apparently be recoverable, notwithstanding that, as in the case cited, a local risk before sailing has been incurred under the policy.

In Stevenson v. Snow (t), where the voyage was from London to Halifax, Nova Scotia, warranted to depart with convoy from Portsmouth, and the vessel arrived at Portsmouth after departure of the convoy, the underwriter, who refused to continue the insurance, was ordered to make a return of premium in respect of the risk not run by him. "These contracts," said Lord Mansfield, "are to be taken with great latitude; the strict letter of the contract is not to be so much regarded as the object and intention of it." Equity implies a condition "that the insurer shall not receive the price of running a risk, if he run none.” "Wherever there is a contingency in the voyage, the risk may be divided" (u). But the principle affirmed by Lord Mansfield is not to be applied in a case where a vessel has been insured for twelve months, and is captured shortly after the making of the contract (x). And where the insurance is "at and from," and the risk is entire, no return is claimable (y).

(r) The following is the custom of Lloyd's in respect of a provision for return of premium "and arrival" :-

"When the words 'and arrival' follow the stipulation for a return of premium on a policy on goods, the particular average, but not the special charges, is deducted from the amount insured, to arrive at the amount on which the return is taken." Report as to the customs of Lloyd's, issued by the Association of Average Adjusters.

(s) Meyer v. Gregson, 3 Doug. 402; and see Arnould's Insce., 5th ed. 1065, note.

(t) 3 Burr. 1237; 1 Black. 318.

(u) Gale v. Machell, Park's Insce., 8th ed. 797. See also Long v. Allen, 4 Doug. 276.

(x) Tyrie v. Fletcher, Cowp. 666.

(y) Moses v. Pratt, 4 Camp. 296.

In Kellner v. Le Mesurier (z), where the clause provided for separate returns in respect of portions of the voyage, "or ten per cent. if with convoy for the voyage and arrives," it was held that the words "and arrives" controlled the provision as a whole. Therefore, the vessel having been captured in the last stage of the voyage, no return was payable in respect of the earlier stages, for which a return would otherwise have been claimable.

In Dudley v. Duff (a), a return had been provided for, "if the vessel sailed with convoy from the coast of Portugal and arrived." The vessel sailed under convoy from Oporto for the general rendezvous at Lisbon, but having lost the convoy before arrival at the rendezvous, she ran for England, and arrived. Held, that the vessel having sailed from some part of the coast of Portugal under convoy and arrived, the assured were entitled to the return (b).

"Warranted free from Capture."-Vide as to this important warranty, sub "Capture," pp. 68-84, supra. The clause is subject to considerable variations (c), both in wording and effect. The more usual form runs as follows:

"Warranted free from capture, seizure and detention, and all the consequences thereof, or of any attempt thereat,"- -or

"Warranted free from capture, seizure and detention, and from all consequences of hostilities or warlike operations, whether before or after declaration of war."

For such varieties as "Warranted free from capture in port"; "in port of discharge"; "in port of loading"; "Warranted free from confiscation"; "Warranted free from American condemnation," reference may be made as above (p. 81).

If a vessel insured free of capture be seized and carried into port for adjudication, and eventually allowed to resume her

(z) 4 East, 396. And see Leevin v. Cormac, 4 Taunt. 438, note. (a) Arnould's Insce., 5th ed. 1076.

(b) For a consideration of the subject of Return-premium generally, reference is recommended to Arnould's Marine Insce., 5th ed. pp. 1057 et seq. (c) Vide Owen's Marine Insce. Notes and Clauses, 2nd ed. p. 19.