actually shipped on board, or until there is an actual contract for shipping them (r). In an action upon a policy of insurance upon ship and freight (s), it appeared that the ship had been destroyed by a tempest, before the goods, which were ready to be shipped, were actually on board. Lee, C. J., was of opinion, that the plaintiff was not entitled to recover for freight, as the goods not having been actually on board, the plaintiff's right to freight had not commenced. But where the right to freight has commenced, as if part of the goods are on board, and the rest ready to be shipped, the plaintiff will be entitled to recover on an insurance on freight (t). So where (u) plaintiff, a ship-owner, effected a policy on freight at and from the Coromandel coast to Bourbon: the ship put into port on the Coromandel coast for repairs; the plaintiff purchased a cargo, and had it ready to be sent on board in storehouses about seven miles from the port. The ship was lost by an accident in getting out of dock. It was holden, that the cargo being ready when the ship was about to leave the dock, the risk attached. So, where a ship was chartered for a voyage from London to Teneriffe, where she was to take wine on board, and to carry it to the West Indies, and it was covenanted that the owner was to receive for the freight for the said voyage so much per pipe, and the vessel set sail, but was captured before she arrived at Teneriffe (x); it was holden, that, as in this case the inchoate right to freight commenced from the inception of the voyage, that is, the instant the ship sailed from London, the plaintiff was entitled to recover on a policy on freight. N. In this case the policy was a valued policy on freight "at and from London to Teneriffe, and at and from thence to the West Indies." So where an insurance was made by ship-owners on freight of a certain ship (y) "at and from Dominica," &c. to London, and it appeared that the ship had been chartered for a voyage from London to Dominica, and back to London, the charterers agreeing to pay a certain part of the freight which the ship should make outwards, and also to procure for the ship at Dominica a full cargo at the current freight for London; the ship having arrived at Dominica, and delivered her outward-bound cargo, was captured while she lay at Dominica, before any part of the homebound cargo, which was ready to be loaded, could be put on board. An endeavour was made to distinguish this case from the preceding case of Thompson v. Taylor, on the ground, that there the insurance was on a valued policy upon freight on a chartered ship at and from London to Teneriffe, and at and from thence to the West Indies; and which, as it was said, turned on the entirety of the voyage insured, the freight being covenanted to be paid for the said voyage, according to a stipulated rate per pipe for 500 pipes of

(r) Flint ▾ Flemyng, 1 B. & Ad. 45.

(8) Tonge v. Watts, Str. 1251.

(1) Montgomery v. Eggington, 3 T. R. 362.

(u) Devaux v. J'Anson, 5 Bingh. N. C.

519.

(x) Thompson v. Taylor, 6 T. R. 478. (y) Horncastle v. Suart, 7 East, 400.

wine; whereas this was an open policy, and the freight was to be estimated according to the quantity of goods on board, of which there never were any, and, therefore, no inception of the freight, and, consequently, not of the insurance upon it: and this, it was argued, was the same as if the ship had sailed from Dominica without any goods on board; but the objection was overruled; Lord Ellenborough, C. J., observing, that it was clear that the underwriter was liable, upon the authority of Thompson v. Taylor, the voyage having commenced in which the freight was to be earned according to the terms of the charter-party, which made it one entire contract, and which voyage was insured by the policy; that in Thompson v. Taylor, the loss happened before the ship arrived at Teneriffe, where she was going to fetch her freight, and yet the underwriter was holden to be liable. Freight may be insured for part of an entire voyage (z); and if the ship be on the voyage insured when the loss happens, the assured will be entitled to recover, although the ultimate destination of the ship was not disclosed to the underwriter. On a policy on goods at and from Plymouth to Malta, with liberty to touch at Penzance, or any other port in the channel to the westward, for any purpose whatever, beginning the adventure from the loading the goods on board the ship as above, it was holden (a), that goods loaded at Penzance were protected by the policy. A policy on freight, at and from the ship's port of loading at J. to her port of discharge, with leave to call at intermediate ports, beginning the adventure on the goods from the loading, as aforesaid, with leave to discharge, exchange, and take on board goods at any port she may call at, without being deemed a deviation, covers the freight of goods loaded at an intermediate port; and therefore, where the ship having sailed with a cargo loaded at J. was, during the voyage, cast on shore at an intermediate port, and lost a part of her cargo, and took on board other goods at that port to complete her cargo, and arrived at her port of discharge, and earned freight; it was holden (b), that the assured, who had abandoned to the underwriter upon intelligence of the loss, and had adjusted with him as for a total loss, was liable to the underwriter for the freight of that part of the cargo loaded at the intermediate port, after deducting the expenses attendant upon procuring the said freight. In an action on a policy on freight it appeared, that the ship in the course of her voyage having been injured by a peril of the sea, was obliged to put into a port, and land the whole of her cargo. Part of her cargo had been so wetted by sea-water that it could not be reshipped without danger of ignition, unless it went through a process which would have detained the vessel six weeks, and have been attended with

(z) Taylor v. Wilson, 15 East, 324. (a) Violett v. Allnutt, 3 Taunt. 419, recognized in Leathly v. Hunter, 7

Bingh. 529.

(b) Barclay v. Stirling, 5 M. & S. 6.

expense equal to the freight. Under these circumstances, the master sold these goods, and finding he could not obtain others, he sailed on his voyage, and arrived at his port of destination with the rest of his cargo. The master's proceedings were such as a prudent man uninsured would have adopted. It was holden (c), that the underwriters were not liable for the loss of the freight of these goods. A ship-owner is entitled (d) to recover upon a policy of insurance for freight for a loss accruing to him by reason of his having been deprived of the means of carrying his own goods in his own ship. A homeward policy on freight (e), at and from A., attaches when the ship is at A. in a condition to begin to take in her homeward cargo, which is a question of fact for the jury.

IV. Of Losses,

1. By Perils of the Sea, p. 953.

2. By Capture, p. 955.

3. By Arrests, &c., p. 957.

4. By Barratry, p. 959.

5. By Fire, p. 963.

6. By other Losses, p. 963.

1. By Perils of the Sea.-Losses by perils of the sea are understood to mean only such as proceed from mere sea damage (f); that is, such as arise from stress of weather, winds, and waves, from lightning and tempests, from striking against rocks, from sands, &c. A loss occasioned by another ship running down the ship insured, through gross negligence, is a loss by perils of the sea (g). If there has not been any intelligence received of a ship within a reasonable time after she has sailed (h), it will be presumed, that she foundered at sea, and the assured may maintain an action against the underwriter, stating the loss to have happened by the vessel sinking at sea (i). What shall be deemed a reasonable time, must depend on the distance and length of the voyage, &c. Evidence of the vessel having sailed on her intended voyage on such a day, and not having been heard of since, is the best

(c) Mordy v. Jones, 4 B. & C. 394; Brocklebank v. Sugrue, 1 M. & Rob. 102. (d) Flint v. Flemyng, 1 B. & Ad. 45, recognized in Devaux v. J'Anson, 5 Bingh. N. C. 519.

(e) Williamson v. Innes, 1 M. & Rob. 88, Lyndhurst, C. B. See Devaux v. J'Anson, ubi sup.

Marsh. 416.

(g) Smith v. Scott, 4 Taunt. 126.
(h) Park, 105.

(i) Green v. Brown, Str. 1199. See also Newby v. Read, Sittings after M. T. 1763, coram Lord Mansfield, C. J., Park, 106.

evidence of which the nature of such a case admits, and consequently will be sufficient to support the action. It is not necessary to call witnesses from the vessel's port of destination; it is sufficient to prove that she was not heard of in this country after she sailed (k). But it must be shown, that when the ship left the port of outfit, she was bound on the voyage insured (1). For this purpose the convoy bond (m) mentioning the port of destination in the common form, or a license (n), is primâ facie evidence. Insurance on goods by a certain ship from Leghorn to Lisbon. At the trial in 1826, the evidence was, that the vessel with the goods insured on board, sailed from Leghorn in April, 1821, for Lisbon; that she never arrived at that place; and that, a few days after her departure from Leghorn, the witness heard that she had foundered at sea, but that the crew were saved: holden (0), that this was sufficient primâ facie evidence of a loss by perils of the sea, and that it was not necessary for the plaintiff to call any of the crew, or to account for their non-attendance.

Upon a policy of insurance on goods, where the ship, being disabled by the perils of the sea from pursuing her voyage, was obliged to put into port to repair; and, in order to defray the expenses of such repairs, the master, having no other means of raising money, sold part of the goods, and applied the proceeds in payment of these expenses. It was holden (p), that the underwriter was not answerable for this loss. Under a count for a loss by perils of the sea (q), evidence that the ship was destroyed by a species of worms, which infest the rivers of Africa, was holden not to support the declaration. If a ship hove down on a beach within the tideway to repair, be thereby bilged and damaged, it is not a loss occasioned by the perils of the sea (r). A transport in the service of government, was insured for twelve months, during which she was ordered into a dry harbour, the bed of which was uneven, and on the tide having left her, she received damage by taking the ground; it was holden (s), that this was a loss by a peril of the sea. So in an insurance on goods in a ship warranted free from capture and seizure. The ship was stranded on a shoal within a few miles of the port of destination, and disabled from proceeding; but while she lay in the sand, she was seized by the commander of the place at which she was stranded; and the goods were confiscated by him: it was holden (t) a loss of the goods by the perils of the sea.

A policy was effected on living animals, warranted free from

(k) Twemlow v. Oswin, 2 Campb. 85. (1) Cohen v. Hinckley, 2 Campb. 51; Koster v. Innes, Ry. & M. 333. (m) 2 Campb. 51.

(n) Marshall v. Parker, 2 Campb. 69. (0) Koster v. Reed, 6 B. & C. 19. (p) Powell and another v. Gudgeon, 5 M. & S. 431; Sarquy v. Hobson, 2 B. &

C. 7; judgment affirmed on error, in Ex.
Chr. 4 Bingh. 131, S. P.

(q) Rohl v. Parr, London Sittings after H. T. 1796, Park, 105.

(r) Thompson v. Whitmore, 3 Taunt. 227.

(8) Fletcher v. Inglis, 2 B. & A. 315. (t) Hahn v. Corbett, 2 Bingh. 205.

mortality and jettison. In the course of the voyage some of the animals, in consequence of the agitation of the ship in a storm, were killed; and others, from the same cause, received such injury that they died before the termination of the voyage insured. It was holden (u), that this was a loss by a peril of the sea, for which the underwriters were liable. In a similar case, where it was found in the special verdict, that a certain usage, with respect to such policies, prevailed amongst the underwriters subscribing policies at Lloyd's Coffee-house in London, and merchants and others effecting policies there, and that the policy in question was effected at Lloyd's Coffee-house; but it was not found that the plaintiff was in the habit of effecting policies at that place: it was holden (x), that this usage was not sufficient to bind the plaintiff. An averment of loss by perils of the sea, is not supported by proof that the vessel was sunk in consequence of being fired upon by another vessel, under a mistake (y). It is the province of the jury to determine whether the cause of the loss be a peril of the sea or not (z). In cases of insurances upon goods, where, by the terms of the policy, the underwriter is to continue liable until the goods are safely landed, if one of the public lighters, entered at Waterman's Hall, be employed for the purpose of landing the goods, and the goods sustain a damage on board such lighter, without any negligence on the part of the lighterman, the underwriter will be responsible for the loss (a); but if the owner of the goods chooses to employ his own private lighter to land them (b); or if after the goods are put on board a public lighter, the owner takes them into his own custody and possession, and discharges the lighterman (c), the underwriter in such cases will not be liable. See Hoffman v. Marshall, 2 Bingh. N. C. 383, and ante, p. 943.

2. Loss by Capture.

Capture is the taking the ship or goods by an enemy of the country to which the ship and goods belong, when in a state of public war.

To constitute a loss by capture within the meaning of the policy (d), it is not necessary that the ship should be condemned, or carried into any port or fleet of the enemy. In every case of

(u) Lawrence v. Aberdein, 5 B. & A. 107.

(x) Gabay and another v. Lloyd, 3 B. & C. 793.

(y) Cullen v. Butler, 1 Stark. N. P. C. 138, Ld. Ellenborough, C. J.

(z) Per Kenyon, C. J., in Buller v. Fisher, Abbott, 236.

(a) Rucker v. London Assurance Comp.,

VOL. II.

London Sittings, June, 1784, per Buller, J.; Hurry v. Royal Exch. Ass., 2 Bos. & Pul. 430.

(b) Sparrow v. Carruthers, Str. 1236. (c) Strong v. Natally, 1 Bos. & Pul. N. R. 16.

(d) Per Lord Mansfield, C. J., in Goss v. Withers, 2 Burr. 694.

T