C. P.] JOHNSON v. CHAPMAN. [C. P. THE SHOOTING STAR; time shifting the deck load against the pumps on against the side of the vessel, it adds to the both sides so that they could not be worked, and danger; and if the stays were cut to let filling the cabin with water, and doing other con- it go at once, it would be very difficult to siderable damage. That as soon as possible say that that was anything more than wreck. the deck load was secured as well as circum- A lawyer could not lay down as a matter of pure stances would permit, and the pumps set to work, law that all lumber cut loose is wreck. But what after which the gale abated. That on the 23rd of I say is, it was virtually lost, if not recoverable; the same month she encountered another strong if the act of cutting the rope was only hastening the gale, and suffered bitterly, which said gale, on the moment at which it would be lost, you would pro25th of the same month, increased to a perfect hur-perly call that wreck, and you would not say it was ricane, and being accompanied by a tremendous high and heavy sea, which broke over the said ship in such immense bodies as to flood her deck, her deck load was again broken adrift, and knocked against the pumps on both sides; and the said appearer was compelled, in order that the crew might work the pumps, and to prevent damage to the bulwarks and pumps, and for the safety and preservation of the said ship, her cargo, and of all on board, to throw a further portion of her deck load overboard; and the said ship, shipping and making so much water, there being five feet six inches in the well, the pumps were of necessity kept going. That the following day the gale abated, and sail was made, the pumps being at all times carefully attended; and that finally the said ship arrived in safety at the port of London on the 2nd Nov." And lastly, the appearer declared that the loss and damage to the ship, her appurtenances and cargo, were solely and entirely owing to, and occasioned by, the gales. Cohen for plts. Sir George Honyman and Lodge for the deft. July 10.-WILLES, J. delivered the judgment of the court:-In pronouncing judgment for the deft. in this case-and for the deft. the judgment must be the Court deems it right to mention, lest any confusion should appear to be introduced into the law by its decision, that the court does not mean to throw doubt upon the propriety of the practice of average staters in disallowing for that which can properly be called "wreck." That appears to be a very general practice, and it is a practice which has found its way into the various treatises on the subject. The question is, what is "wreck?" In order to make jettison the subject of a general average contribution, two conditions must be fulfilled: first of all, there must be a common danger; it must be a maritime peril, and it must be common to the whole adventure, which would exclude some of the cases, which counsel very ingeniously put, of a subject-matter that had within itself the elements of destruction which developed themselves during the storm; as, for instance, cotton which was brought on board in a damp state bursting out into a flame, and being thrown overboard: you cannot say there is in that case a common danger, but a peculiar danger from the fault of the person putting it on board. And then, secondly, there must be a sacrifice in the sense of intentional sacrifice. That is a second condition which must be fulfilled; and that seems to exclude all those cases in which the average staters ought to refuse to allow a contribution upon the ground of wreck. Certainly the reasoning is all consistent. All the writers in this country and abroad appear to be agreed that the question is, whether there is common danger, and whether there is a voluntary sacrifice. They are not all agreed, it must be admitted, upon the application in practice of these rules. But there is one case upon which our average staters appear to be agreed-that is to say, if a mast were sprung, and a part of it were to go overboard with a quantity of spars and sails attached to it, hanging on by a stay which must give way in a minute or two, whilst, in the meantime, by battering general average. The reason given is, because you Ex.] HAUGHTON AND OTHERS v. THE EMPIRE MARINE INSURANCE COMPANY (LIMITED). [Ex. was imminent danger of its getting loose and taking the same course as the first part. But the same sort of question might arise in various forms as to cargo stowed in the hold. For instance, if there were an exceedingly heavy part of the cargo below, and the vessel was labouring very much-when I say very heavy I mean heavy in the sense of great specific gravity-and working upon a particular part of the vessel it had strained the vessel, and so threatened to let in the water and sink her, if you took that and threw it overboard, in no other sense can it be said the cargo in question, or that part of the cargo so thrown overboard, to be more precise, was exposed to danger different from the rest of the cargo, except in that circumstance- the circumstance that it was, by reason of its weight and position, the best thing to choose to throw overboard, and the thing which, in that sense, it was especially necessary to throw overboard for the benefit of the whole Was the jettison in this case voluntary? was it to ward off a common danger? It is only necessary to look at the protest to find the answer. The danger was caused to all-both ship, and cargo, and crew-by the storm; and to save the whole adventure from that storm the timber was voluntarily thrown overboard, and it was not wrecked. In short, the special danger caused to and by the timber was only a circumstance of the common peril to which the whole adventure was exposed. For these reasons we think that our judgment ought to be for the deft. concern. COURT OF EXCHEQUER. Nov. 22, 1865, and Feb. 26, 1866. HAUGHTON AND OTHERS V. THE EMPIRE MARINE INSURANCE COMPANY (LIMITED). Marine policy-Construction of—Meaning of words "at A vessel of the plts., insured by a valued policy “lost or (a) In delivering his judgment in this case, Channell, B stated that he was not aware whether Pollock, C. B. concurred with the judgments of Pigott, B. and himself, or not; and that Martin, B., not having heard the whole of the argument, would take no part in the judgment, which at any rate, his Lordship added, "is the judgment of the majority of the court." insured in a state of sufficient seaworthiness to be 30004 on the ship Urgent, "lost or not lost at and Second count, for money payable and money due on accounts stated. Claim 10007 Pleas-1. To first count, that the said ship did not when at Havana, after the commencement and during the continuance of the said risk, sustain injury by the perils insured against as alleged. 2. To the first count, that the said ship was not, after the commencement and during the continuance of the said risk, stranded, sunk, or burnt within the meaning of the said policy; and that the said loss and damage in the said first count mentioned did not constitute a general average loss, and amounted to less than 3 per cent. 3. To the first count, that plts. were not, nor any of them, inresidue of the declaration, never indebted. On all terested in the said ship, as alleged. 4. To the which pleas issues were joined. Liverpool, to recover 3531. 3s. 1d., the sum found The action was brought by the plts., merchants at which the plts. had caused to be prepared by ave due from defts. under a pro formâ average adjustment rage adjusters of Liverpool, under the above policy, and at the trial before M. Smith, J. and a special jury, at the Liverpool Summer Assizes 1865, the defts. did not dispute the accuracy of such adjustment, but contended that, at the time of the hap pening of the damage, the vessel was not covered by the policy, inasmuch as she had not then arrived "at" Havana, but was still on her voyage to that port. The facts as they appeared from the evidence of the captain, which was taken vivâ voce under a judge's order before a commissioner at Liverpool on 8th April 1865, were as follows:-On the 5th May 1864, the Urgent arrived off the harbour of Havana, and as soon as she got inside the heads in the harbour the captain took a pilot and engaged a steamtug to take her up to a spot where she could obtain through the harbour past the thick of the shipping clear anchorage. The ship was then towed up above the city, and beyond the spot where eventually her cargo was discharged. When past the thick of the shipping and near a spot called the "Regla Shoal," at the head of the harbour, the ship began to stir the mud up, but she never stopped and was not felt to take the ground. The pilot then gave orders to let go the anchor, and to the steamer to Let go the warp. The anchor was let go, but the steamer kept Ex.] HAUGHTON AND OTHERS v. THE EMPIRE MARINE INSURANCE COMPANY (LIMITED). [Ex. tugging ahead, and the ship ran out some fifteen fathoms of chain. The hawser then broke and the helm being starboarded by order of the pilot, the ship swung round three or four points. The pilot then went on shore without giving any further orders, leaving the ship anchored as she was; and so she lay till the next morning (May 6th), when the captain attempted to get her round head to wind, but failed to do so, and subsequently on the same day he discovered that the cause of her not coming round was that she had settled down on the anchor of another ship, which had caused her to sustain serious injury in the starboard after-run. She was on the following day, the 7th, at high water, tugged off and towed into deep water to a spot selected by the purchaser of the cargo, nearer the mouth of the harbour than the "Regla Shoal" was, and there her cargo was discharged, and she was afterwards taken into a dry dock where her injuries were repaired. and the ruling of Lord Ellenborough there had Patrick v. Ludlow, 3 Johnson's New York Cas. 10; Palmer v. Marshall, 19, C. P.; Bing. 79; 1 L. J., N. S., Smith v. Surridge, 4 Esp. N. P. C. 25; and 1 Phillips on Marine Insurance, 3rd edit. (Boston), sects. 932, 933, 934, were all authorities to the like effect. None of The entry in the official log under date of 5th the cases gave a satisfactory definition of the meanMay merely stated the simple fact that "at 4 p.ming of the word "at." The court, therefore, must the pilot ran the ship aground on the Regla Shoal take it in its plain, popular, and geographical sense, and left us." and not complicate the case by adopting an unnatural, strained, and artificial interpretation of so clear and simple an expression. The only question was whether, at the time that the ship received the injury, the policy had attached. The verdict was entered for the plts. for 3531. 3s. 1 d., subject to leave to the defts. to move to enter a nonsuit or a verdict for defts., the court to draw all necessary inferences, and a rule to that effect having been obtained in Michaelmas Term, on the ground that the policy never attached, the vessel not having arrived at Havana within the meaning of the policy, Potter (with him E. James, Q. C.), contra, for the defts., contended that the ship was not at Havana within the meaning of the policy. If this had been an outward policy only it would have expired when the ship had been safely anchored for twenty-four hours, the voyage would then have been concluded and the underwriters discharged. But even admitting that there might be an overlapping of the two Brett, Q. C. and Baylis now (Nov. 22) showed policies, there must be a time when the outward cause against it on behalf of the plts.-It was imma- liability ceased, and surely the homeward liability terial whether the injury occurred before or after must begin at that same time. The vessel could the ship was finally and properly anchored, though not be said to be at Havana, unless she were the facts showed that it occurred after; the pilot there, so that twenty-four hours afterwards the had left her, and she was brought up swinging by outward liability would cease; but here the outher own anchor. The policy attached the moment ward liability remained until the ship had been the ship was within the natural and artificial twenty-four hours at the spot where her cargo was entrance of the harbour, and she was then, in discharged. The letting go the anchor by order of nautical phraseology, "at Havana." There was a the pilot was the necessary consequence of the modifference between "off" and "at" a place. A ship mentary emergency, and was a temporary and not when lying in the Sloyne was at Liverpool; a ship the final anchoring. It might be that it was not anchored in the river at Gravesend was at London, necessary to the homeward policy's attaching that though she had not reached her ultimate place of the outward voyage should have expired, but it destination, the London-docks. But a ship in the was necessary that such a time should have arrived Dover-roads was "off" Dover, and not "at" it until that the outward underwriters could or night be she was within the entrance of the harbour. No discharged, and that time had not arrived here; in doubt, in order for the policy to attach, the ship fact, the outward voyage must be at an end before must be at the place in a seaworthy condition, and the homeward voyage commenced. The ruling of that was the case here; but in simply ascertaining Lord Tenterden, C. J., in Samuels v. The Royal Exwhether in fact she were at the place, the second change Insurance Company, 8 B. & C. 119, showed that question of seaworthiness may for the moment the word "London" might, for the purposes of the be dismissed. Had she been insured on the out-policy, be restricted to a particular dock there, and ward voyage to Havana the policy would have that a ship which had not arrived at her place of covered her until she had been safely anchored for discharge had not been anchored for twenty-four twenty-four hours. It was now decided that the hours in good safety at her destination, and to that home policy attached before the outward policy effect was the case cited in Phillips on Marine Inwas at an end, the two policies thus overlapping|surance, sect. 968. "At Havana" meant, therefore, each other. It was clear that here something was at the place of discharge, the ultimate destination insured plus the home voyage, or it would have of the vessel. been "from" Havana only. [POLLOCK, C. B.— Cur. adv. vult. Has it not been decided that to be "at" a place the vessel must be there in safety; that the dangers of the voyage must be over and at an end?] In Arnould on Marine Insurance (3rd edit. by Maclachlan), p. 339, it was said to be now settled that where a ship was insured "at and from" a foreign port with a view to cover the home voyage, she must have once been at the outward port, the "in good physical safety," before the homeward policy can attach; and Parmeter v. Cousins, 2 Campb. 235, and Bell v. Bell, Ib. 475, were there cited as authorities for that proposition, terminus a quo, Feb. 26. The following judgments were now delivered: CHANNELL, B.-The question in this case is whether or not the policy had attached at the time when the damage occurred to the ship Urgent? The facts are before us on the notes and in the documents. In my opinion the ship was then at Havana, and consequently the policy had attached. The damage occurred "at Havana," speaking in a geographical sense, and there is nothing in my judg Ex.] HAUGHTON AND others v. The EMPIRE MARINE INSURANCE COMPANY (LIMITED). [Ex. ment to show that the parties, at the time the policy | not expressed. It was argued for the defts. that was underwritten, had any other meaning of the word "at" in contemplation. All the limitation which it seems has ever been imposed by the law, as to the time of the commencement of the risk in such a case as the present, is that the ship should arrive at the port "at" which she is insured in a state of sufficient repair or seaworthiness to be "enabled to lie there in reasonable security till properly repaired and equipped for her voyage: (Parmeter v. Cousins, ubi sup., and Bell v. Bell, ubi sup.), in the latter of which cases Lord Ellenborough's ruling at Nisi Prius was subsequently upheld by the court in banc. In the present case, however, there appears to be no doubt that the ship was really within the harbour in good safety, and that the loss occurred from a peril in the harbour, and in no way from any injuries that she had received before her arrival. The ship being insured while at Havana, is evidently (in the absence of any express provision to the contrary) insured all the time she is there, and therefore the risk commences, as was said by Lord Hardwicke in Motteux and others v. The London Assurance Company (ubi sup.), on her "first arrival" there. Unless, therefore, we can say that her "first arrival" at the port is when she casts anchor there, instead of when she enters the port, our judgment must be for the plts. In many cases the nature of the port may be such that the two events may be identical. There may be nothing to show the arrival of the vessel till she casts anchor. But here we have evidence as to the port of Havana, which is sufficient, in my judgment, to show that the arrival was before casting anchor. Mr. Potter has argued that the first arrival, which must no doubt be in good safety, must be identical with the mooring in good safety usually named in outward policies. But I think we cannot construe the terms of one contract by reference to those of another not referred to in it. And it is clear that there is no usage that the duration of the outward and homeward policies should not overlap, because the outward policy usually extends to twenty-four hours after the vessel is moored in good safety. During those twenty-four hours there is no question that there is a double insurance, and therefore I see no ground for saying that the parties contracted subject to any usage that such a policy would not attach until the previous one had determined. If they had wished to make such a condition it could easily have been done; or, if having in view any special dangers, as shoals, or the like, within the port of Havana, they had chosen to make the risk date from the vessel being moored in safety, they would have done so ;, but as it stands it is from her "first arrival," which, as a matter of fact, I think to be on her entering the port. My judgment is, therefore, for the plts. that the rule be discharged. PIGOTT, B.-(After recapitulating the facts, his Lordship proceeded to deliver his judgment as follows):-The sole question in this case is, whether the policy had or had not attached at the moment when the mischief occurred? I am of opinion, in conjunction with my brother Channell, that it had. I agree with the plts.' counsel, and think that the language used by the parties ought to have a plain construction put upon it, and that as the ship had arrived, geographically speaking, within the harbour of Havana, and was in safety there before the injury was received, the risk had then commenced. A policy of insurance is to be construed by the same rules and on the same principles as other contracts, it being the duty of the court to collect the meaning of the parties by taking the language employed in a plain and ordinary sense, and not to speculate on some supposed meaning which the parties have Havana being an outward port, as far as regards this vessel, the words "at and from" Havana must be construed to mean that the risk should commence when the ship had so far performed her outward voyage that nothing remained to determine the outward policy, but that the twenty-four hours after her arrival should expire, and that, so construed, this policy had not attached, inasmuch as the ship had not arrived at her place of discharge. But this, it seems to me, would be a very artificial mode of construing the policy in question, nor have we any safe guide to conduct us to it. With equal plausibility it might be argued that the risk "at and from' a port should not commence till the insurance "to" that port ceased, which is at the end of the twenty-four hours, and not at the com mencement of them. The answer to both these arguments seems to be, that the construction of this contract cannot depend upon the contents of another and distinct contract which is wholly unconnected with it, and that the court is not called upon to know or assume that, in fact, any outward policy exists. This view is sanctioned by the authority of Lord Hardwicke in Motteux v. The London Assurance Com pany (ubi sup.), where his Lordship mentions a case tried before him at Guildhall, in which he says, "It was debated whether the words 'at and from Bengal meant the first arrival of the ship at Bengal ;" and he adds, "It was agreed the words first arrival' were implied, and always understood in policies." Now, there can be no question about the sense in which Lord Hardwicke uses the words "first arrival," viz., in contradistinction to her being moored in a particular place, or discharging her cargo. In Parmeter v. Cousins (ubi sup.) Lord Hardwicke's report of the above case is mentioned, and the learned reporter adds, "There seems no doubt that the rule laid down by Lord Hardwicke, qualified by the principal case (to which the note is appended), is to be considered as established law upon the subject." The qualification there alluded to is, that the ship shall be once in good safety at the port, a matter not in dispute in the present case. This doctrine, and the authority for it, are to be found in several of the text-books on insur ance, and may be then taken to have been long considered as the meaning of those who so word their policies. In Arnould on Insurance, p. 28, s. 25, 2nd edit., it is the form recommended to be adopted for the advantage of the assured in protecting the ship from the moment of her arrival. I do not think it necessary to advert to the other question which has been raised, viz., whether, in fact, this ship had not anchored in the harbour before the damage was sustained, and at a place even farther within it than her place of ultimate discharge, and whether that would makeany dif ference in the case. In my judgment the plts. are entitled to keep their verdict, and this rule, therefore, should be discharged. Rule discharged. Attorneys for the plts., Norris and Allen, 20, Bedford-row, agents for Simpson and North, Liver pool. Attorneys for the defts., Chester and Urquhart, 11, Staple-inn, agents for Lace, Banner, Littledale, Gill, and Bardswell, Liverpool. Ex.] Klingender v. THE HOME AND COLONIAL INSURANCE COMPANY (LIMITED). [Ex. June 7 and 11, 1866. KLINGENDER V. THE HOME AND COLONIAL INSURANCE COMPANY (LIMITED). side of South America she encountered very heavy gales and seas, and received so much damage therefrom, and became so leaky, that when off Cape Horn the captain found it necessary to bear up for Marine insurance-Action for total loss of freight-Port Stanley in the Falkland Islands, the nearest Constructive total loss of ship and goods - Proper questions for the jury-Misdirection. port of refuge. On the 20th Aug. it became necessary for the safety of the ship to ease her by throwing overboard twenty-six tons of the iron, and on Action on a policy of insurance as for a total loss of 26th Aug. she came to an anchor off Port Stanley. freight to be earned in carrying a cargo of coals and While there a survey was had of the vessel, and in iron from Rio to San Francisco. On the voyage the pursuance of the recommendation of the surveyors ship received damage from heavy seas which compelled a further portion of the cargo of iron, amounting to her to put into Monte Video, having previously, for fifty tons, was discharged and landed at Stanley; safety's sake, thrown overboard some portion of her and the captain being unable to find a ship to take cargo and landed another portion at the Falkland it on or carry it back to England, left it there in Islands. On the ship's being surveyed at Monte Video, charge of the manager of the Falkland Islands she was found to be incapable of pursuing the voyage Company, who consented to look after it, but withwith the cargo on board, and no other vessel could be out being in any way responsible for it. There found to take the cargo on. The cost of warehouse were no graving docks, or other means of properly room was so great at Monte Video that in a few examining and repairing the vessel at Stanley, and months it would have equalled the value of the cargo, so, after having her temporarily repaired in the best and owing to the town being in a state of siege and way that he could do there, and for which he expolitical revolution, it was unsafe to land the cargo pended from 120l. to 1467., the captain again set sail and leave it unwarehoused; under these circumstances on the 17th Sept. to prosecute his voyage to San the captain, being in want of money, sold the cargo and Francisco. Encountering further bad weather, applied the proceeds to the ship's purposes, and then and the leak increasing, it was found impossible brought her back in ballast to Liverpool for repairs. to proceed on the voyage with safety, and At the trial the learned judge left two questions to the accordingly the vessel bore up for Monte Video, jury: first, was there a constructive total loss of the which port she reached on the 1st Oct., making ship? secondly, was there a constructive total loss of water badly all the way. Upon arriving at Monte the goods? The jury answered both questions in the Video it was found that the place was in a state of negative and found a verdict generally for the defts., siege, and a hostile army in the vicinity. The inand upon a rule to set the verdict aside for misdirec- habitants were leaving the town, and the ships in tion on the part of the judge in telling the jury that the harbour were being withdrawn in order to get those were the only questions for consideration, it was out of the reach of the enemy's guns. There were Held, that there was no misdirection, and that the two Video, and it was impossible for her in her leaky no means of properly repairing the vessel at Monte questions submitted to the jury were, under the circum-condition to carry the cargo farther, nor could any stances, proper questions for the determination of the other vessel be procured to carry it on. Under these circumstances the captain deemed it right to discharge the crew and land the cargo and warehouse it. It was found that the cost of warehousing was so great that in a few months it would equal or exceed the value of the goods, and therefore, in determined to sell the cargo, which he did, with the Feb. 1865, the captain, who was in need of money, exception of some 300 tons of coal retained for ballast; and applied the proceeds to the ship's purposes. He then set sail in ballast for Liverpool, to be repaired, and that port, after a leaky voyage, was eventually reached. The estimated cost of repairing her at Liverpool varied from 1984. to 27281. To have taken her to Rio for repairs was impossible, that port being about the most expensive in the world. Money was paid into court to cover the loss of freight in respect of the portion of the cargo thrown overboard, and that which was landed at Falkland. case. Semble, nevertheless, that the question of total loss of remote one. This was an action on a policy of marine insurance to recover 15001, as for a total loss of freight, the freight insured being a freight to be earned by the ship Mary Sparks in carrying a cargo of coals and iron from Rio Janeiro to San Francisco; and the declaration, which was in the usual form in such cases, alleged that "whilst the said ship was proceeding on the said voyage, and during the continuance of the said risks so insured against, the said ship with the goods on board, and likewise the said freight which the plt. should otherwise have earned by the carrying of the said goods as aforesaid, were by the aforesaid perils of the sea wholly and totally lost, and all things happened, &c., to entitle plt. to recover from defts. as in respect of and for a total loss of the said insurance freight to the amount insured thereupon, and to be paid the said sum of 15004. by defts. accordingly, and plt. claimed 20007." Plea, payment into court of 2831. 19s. 6d. as enough to satisfy plt.'s claim. At the trial before Lush, J., and a special jury, at the last Lancashire Spring Assizes, at Liverpool, the following appeared to be the facts of the case :The vessel in question, a ship-rigged vessel of 496 tons register, set sail from Rio on her intended voyage to San Francisco on the 3rd July 1864, with a cargo consisting of 275 tons of pig iron and 375 tons of coal, and on her passage down the eastern MARI. CAS.-VOL. II. The learned judge left two questions to the jury: first, was there a constructive total loss of the ship? secondly, was there a constructive total loss of the goods? The jury found for the defts., that there was no constructive loss of the vessel, and no constructive loss of the cargo; and the verdict was thereupon entered generally for the defts. A rule was subsequently obtained by the plt. to set aside the verdict, and for a new trial, on the grounds, first, of misdirection on the part of the learned judge in telling the jury that the only question was whether there was a constructive total loss of ship or goods, and of further misdirection in telling them to exclude from their consideration any question of risk to the goods by being left at Monte Video in its then state, and further telling them (as to part of such goods) to exclude any question of the condition of such goods at Liverpool; secondly, of the improper rejection of evidence offered on the plt.'s part to show the dealings 2 E |