1875 ANDERSON v. MORICE. go to the jury. It may be that conclusive evidence of seaworthiness would have been a proof of loss by a peril insured against, but it is does not follow that, because there was some evidence of seaworthiness, there was therefore evidence of a loss by perils of the sea. There must be reasonable evidence to go to the jury; a mere scintilla is not sufficient. Seaworthiness consists of many things, and though a ship may be a good ship enough in many respects, one small matter may make her unseaworthy. It cannot, then, be reasonably said that some general evidence of seaworthiness, such as was given in this case, amounts to evidence to go to the jury of a loss by perils insured against. In the absence of any positive evidence of such a loss exhaustive evidence negativing unseaworthiness in all particulars is necessary to raise a presumption of the alternative cause of loss, viz. a peril insured against: Giblin v. McMullen (1), Prescott v. Union Marine Insurance Co. (2) Secondly, there was no evidence of an insurable interest. The contract of marine insurance is a contract of indemnity, and the rice never was at the plaintiff's risk. The purchaser was under no liability to accept the seller's drafts until the bills of lading could be tendered. The intention clearly was that the property should not pass until the drafts were accepted. [BLACKBURN, J. Apart from any question as to the property passing, may not the goods be at the purchaser's risk, and so he be entitled to insure ?] It is not necessary to contend that the property need have passed to give an insurable interest, but that there cannot be an insurable interest, because the cargo never having been completed the rice never was at the purchaser's risk. The rice was not to be at the purchaser's risk until the cargo was completed and bills of lading signed. [He cited on the second point Kreuger v. Blanck (3), Appleby v. Myers (4), Sparkes v. Marshall (5), and Vernede v. Weber. (6)] Watkin Williams, Q.C. (with him J. C. Mathew), for the plaintiff. [BRAMWELL, B. The Court is of opinion that there was evi (1) Law Rep. 2 P. C. 317, 335. (2) 1 Whart. Penn. 399. (3) Law Rep. 5 Ex. 179. (4) Law Rep. 2 C. P. 651. (5) 2 Bing. N. C. 761. (6) 1 H. & N. 311; 25 L. J. (Ex.) 326. 1875 dence for the jury of a loss by a peril insured against. The argument for the plaintiff may therefore be confined to the question of ANDERSON insurable interest.] The rice that was shipped was irrevocably appropriated to the contract; if the purchaser elected to take it, although the cargo never was complete, he was entitled to do so. It is like the case of a deviation which, though it would excuse the charterer, would not entitle the shipowner to withdraw the ship. The seller could not withdraw the rice once shipped. Consequently when the rice is shipped an insurable interest arises in the plaintiff. The question whether he was liable to pay for the rice has nothing to do with the question of insurable interest. There might have been a large margin of interest beyond the price. [BLACKBURN, J. This is a policy on goods, not profits; the goods are valued at the shipping prices.] The contract clearly indicates that the risk was intended to be on the purchasers so soon as the goods were waterborne. It would be very inconvenient that there should be two insurances; one by the vendor during the lading, the other by the purchaser when the lading was complete. [He cited Castle v. Playford (1); Tamvaco v. Lucas (2); Lucena v. Craufurd (3); 2 Duer. 168; Joyce v. Swann (4); McKenzie v. Whitworth (5); Ebsworth v. Alliance Marine Insurance Co. (6); McSwinny v. Royal Exchange Insurance Co. (7); Watson v. Shankland. (8)] Butt, Q.C., in reply. There is no inconvenience or injustice as suggested. The vendor must insure the rice on its way down the river to Rangoon. The shipper's great risk commences when the voyage commences, and accordingly he insures against sea perils. If the vendor goes uninsured on the river perils, he may as well go uninsured on them till the voyage begins; on the other hand, if he insures, he may as well insure up to the same point. [He cited Stockdale v. Dunlop (9); Phillips, vol. 1, s. 174.] (1) Law Rep. 7 Ex. 98. (2) 1 E. & E. 581; 28 L. J. (Q.B.) 301. (3) 2 B. & P. (N.R.) 269. (4) 17 C. B. (N.S.) 84. Cur. adv. vult. (5) Law Rep. 10 Ex. 142. (8) Law Rep. 2 H. L., Sc. 304. (9) 6 M, & W. 224. v. MORICE. 1875 June 26. The following judgments were delivered : ANDERSON v. MORICE. QUAIN, J. As to the first point argued before us, namely, whether there was any evidence of a loss by perils of the seas, I agree with the other members of the Court, that there was evidence from which the jury were fairly at liberty to infer a loss by sea perils. But I am unable to concur with the other members of the Court in holding that the plaintiff had no insurable interest in the rice at the time of the loss, and that on that ground the judgment of the Court below should be affirmed. It seems to me to have been the manifest intention of the parties to the contract of the 2nd of February, 1871, that the rice should be at the risk of the plaintiff from the time it was loaded on board the ship, and that therefore he had an insurable interest in it from that time. By the contract the plaintiff bought the cargo of rice per Sunbeam, at 9s. 1 d. per cwt. cost and freight. Payment by sellers' draft on purchasers, with documents attached. As the price included cost and freight only, and not insurance, it seems plain that the insurance, if any, was to be effected by the purchaser; and in a letter dated the 7th of March, 1871, from the sellers' agents to the plaintiff, which was put in evidence, a telegram from the sellers at Calcutta, dated the 6th of March, is set out in these words: "Sunbeam, Rangoon.-Advise Anderson. Insurance." Before the receipt of this telegram, namely, on the 3rd of February, 1871, the day after the making of the contract, the plaintiff effected the present policy "on rice by the Sunbeam, as interest may appear." The policy is in the usual form, "beginning the adventure on the said goods from the loading thereof aboard the said ship"; but it is said that though the language of the policy is sufficient to cover a loss during the loading, the interest of the plaintiff in the goods did not attach till the loading was complete and the shippers in a position to obtain bills of lading, and this, on the ground that the plaintiff was only bound to pay by acceptance of a draft with documents attached. But I think it is fairly to be inferred from the fact that the plaintiff was to insure the goods, and had notice from the sellers to insure on the 6th of March, which was before the loading began, that the plaintiff was to insure the goods in the ordinary way by an ordinary policy from the loading, and therefore that it was intended that the goods should be at his risk from that time. It could scarcely have been within the contemplation of the parties -especially in a case like the present, where the ship was being loaded, not in dock, but from lighters at the mouth of a river-that the cargo should remain uncovered by insurance during the loading, or that it would require two policies, one effected by the vendor to cover the goods during the loading, and another by the vendee to attach from the time that the loading was complete. The fact that the goods were to be paid for by an acceptance with documents attached, is not inconsistent with the goods being at the risk of the vendee before the time arrived for obtaining the necessary documents or for presenting the draft for acceptance, if it can be inferred from the facts of the case that such was the intention of the parties. In Fragano v. Long (1), the goods were to be paid for three months after their arrival at Naples. By the terms of the order the goods were to be despatched on insurance being effected. Insurance on behalf of the vendee was effected accordingly, and the Court held that it was to be inferred from the order to insure that the goods were to be at the risk of the vendee, and that he was bound to pay for them, though they were lost and never arrived at Naples. "I was next contended," says Holroyd, J., in that case, "that Fragano was not liable to the vendor unless the goods arrived, but the order for insurance is decisive as to that." ... "The expiration of three months was to be the time of payment if the goods arrived; if they did not arrive, the law would imply a promise to pay in a reasonable time." In Castle v. Playford (2) the goods were to be paid for in cash on delivery, but the purchaser by the terms of the contract took upon himself "all risks and dangers of the seas," and from this it was inferred, that though the goods were lost by perils of the seas before delivery, the purchaser was still bound to pay for them. So in the present case I infer, from the fact that it was intended that the plaintiff should insure, that the goods were intended to be at his risk in order to enable him to effect a valid insurance, (1) 4 B. & C. 219. (2) Law Rep. 5 Ex. 165; Law Rep. 7 Ex. 98. 1875 ANDERSON v. MORICE. 1875 ANDERSON v. MORICE. and as nothing was said as to the time from which he was to effect the insurance, I infer that it was intended that he should insure by an ordinary policy, beginning the risk from the loading, and that the goods were considered by the parties to be at his risk from that time. The plaintiff, therefore, according to the authorities above cited, was bound to pay for the goods lost, and in this case has done so accordingly. For these reasons I think that the judgment of the Court below ought to be affirmed. The judgment of Blackburn and Lush, JJ., was delivered by BLACKBURN, J. In this case the defendant is an underwriter for 1007. on a policy in the ordinary form of a Lombard Street policy "at and from Rangoon to any port or place of discharge in the United Kingdom or Continent" on the ship Sunbeam. The subject-matter of the insurance is described as “55007. (part of 60007.) on rice as interest may appear. Amount of invoice and 15 per cent. to be deemed the value; average payable on every 500 bags." The policy contained the usual printed words, " Beginning the adventure upon the said goods and merchandizes from the loading thereof on board the said ship." The Sunbeam, at Rangoon, foundered at anchor with 8878 bags of rice on board. And this rice was totally lost. The question in the cause was whether the plaintiff was entitled to recover in respect of the loss of this rice from the underwriters, and if so, for what percentage. The decision of the Court below was that he was entitled to recover 1007. per cent. from each underwriter. There was a minor point made that even if the underwriters were liable it was not for so great a percentage. For, if in calculating the amount at risk the invoice value is taken to mean the invoice as between the shipper and the purchaser, that, with the 15 per cent. added, would not amount to 60007., and the underwriters would be liable to make good something less than 100 per cent. If the phrase "invoice value" is to be taken as another expression for the ordinary shipping value, which includes not only the cost but the premiums of insurance, the value exceeded |