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Q. B.]

PAYNTER AND OTHERS v. JAMES.

and warehouse it, and to detain the vessel at | Rio for many months, and that the expenses of the repairs there would have been very heavy; so much so that it seems probable they would have exceeded the value of the ship when repaired; at all events, they would have cost many thousands of pounds more than if done in England. But it appeared that by making some slight temporary repairs which would not require that the cargo should be unloaded, and which in fact only caused a detention of three days, the vessel might be made fit to come home under steam. The master resolved to adopt this latter course, and there can be no doubt that in so doing he acted properly. In order to bring her home under steam it was necessary to purchase coal first at Rio and afterwards at Fayal. The value of the coal purchased and consumed in bringing her home was between 14007. and 1500, and the question that arises is whether the whole or any part of that sum can properly be charged as general average, all the other items claimed by the plt. being covered by the money paid into court. When a vessel at a port of refuge requires repairs to prosecute her voyage, and for that purpose the cargo is unloaded, warehoused, and reshipped, the practice is to charge part of these expenses to the ship, part to the goods, part to the freight, part to general average, and part to the owners. Two average adjusters of great experience proved that, if the repairs had in fact been so done at Rio, a large proportion of the expenses would have been such as according to the practice would have been charged to general average; and they made out the adjustment, and the plts. claimed on the following principle: they said the money expended in buying coal was an expenditure to prevent the necessity of unshipping the cargo at Rio, and therefore ought to to be charged against the same interests and in the same proportions as the expenditure which it prevented would have been charged. We wish to guard against being supposed to sanction the notion that in a case like this the shipowners could have charged the owners of the cargo with any part of the expenses of unshipping and warehousing the gold at Rio, supposing the master had under these circumstances adopted that course. Inasmuch as the master could by the expenditure of a comparatively small sum in temporary repairs and coals bring the ship and cargo safely home, it was his duty to do so; and though we do not decide a point which does not arise, we are not to be taken as deciding that his owners would not have been liable to the owners of the cargo if he had not taken this course. But, passing this by, we think that the expenses actually incurred must be apportioned according to the facts that actually happened, and that there is no legal principle on which they can be apportioned according to what might have been the facts if a different course had been pursued. No case or authority was cited to support the principle contended for, nor are we aware of any. If in any particular trade it has been found convenient to act on this principle, and that has been done to such an extent as to create a custom tacitly making it part of the contract that this shall be the principle applied, or if the parties to a charter-party stipulate that it shall be so, and by words of reference to the charter-party in the bills of lading and the policies of insurance make it part of the contract affecting every one, the case would be different; but as it is, the principle propounded is not, we think, tenable at law. The counsel for the pits. then argued that at all events the money paid for the coals was an extraordinary expenditure, and, as such, to be contributed for as general average; but we think this is not so. The shipowners, by their contract with the freighters, are bound to give the service of their crew and their ship, and to

[C. P. make all disbursements necessary for this purpose. In the case of such a vessel as this, which is equipped with an auxiliary screw, their contract includes the use of that screw, and, consequently, the disbursements necessary for fuel for the steamengine. Now, the disaster which occurred in this case no doubt caused the engine to be used to a much greater extent than would generally occur on such a voyage, and so caused the disbursements for coals to be extraordinarily heavy, but it did not render it an extraordinary disbursement. The case is similar to that of an ordinary sailing vessel, in which, owing to disasters, the voyage is unusually protracted, and, consequently, the owner's disbursements for provisions, and for the wages of his crew, if they are paid by the month, are extraordinarily heavy. It is not similar to that of the master hiring extra hands to pump, when his crew are unable to keep the vessel afloat, or any other expenditure which is not only extraordinary in its amount, but is incurred to procure some service extraordinary in its nature. We think, therefore, that there is no right to charge this item to general average, and, consequently, that the rule to enter the verdict for the deft. must be made absolute.

Rule absolute.

COURT OF COMMON PLEAS. Reported by W. GRAHAM and M. W. MCKELLAR, Esqrs, Barristers-at-Law.

Jan. 26 and 29, 1867.

PAYNTER AND OTHERS v. JAMES.
Charter-party-Payment of freight-Time of-Freight
payable "on" delivery.

By the terms of a charter-party freight was payable “on
right delivery of the cargo." In an action by the
shipowners for freight, to which the deft. pleaded that
the plts. were not ready and willing to deliver:
Held, that the deft. was not entitled to delivery before
paying the freight; that the delivery and payment
of freight must be simultaneous acts, and that if in
point of fact they could not take place simultaneously,
it must be shown that each party was ready and
willing to perform his part of the contract.

The first count of the declaration was on a charterparty, alleging that it was agreed that freight should be paid as follows: one-third in cash on arrival at Bristol, and the other two-thirds on right delivery of the cargo, by good and approved bills, payable in London at four months, or cash, deducting the usual interest at the option of the charterer; and that the deft. elected to pay the second two-thirds in cash, deducting 24 per cent. for four months. Breach, that all things were done and happened, and all times elapsed necessary to entitle the plts. to have the deft. pay to them the said two-thirds, yet the deft. did not pay the same, either in cash or bills.

Second count. That it was agreed between the plts. and deft. that the plts. should deliver to the deft. certain goods on which certain freight was payable, and that the deft. should pay the said freight, one-third in cash, and two-thirds in cash, with 24 per cent. discount, and all things were done, &c. ; yet the deft. did not pay the two-thirds.

Third count. For money payable for and in respect of the plts.' having delivered to the deft. at his request certain goods whereon the plts. had a lien for freight, and thereby lost the said lien, and for freight of goods carried in the plts.' ship, and on

accounts stated.

Fourth count. That the said ship arrived in Bristol, &c., and all things were done and happened necessary to be done and to happen, and the plts.

OTHERS v. JAMES.

make all disbursements necessary in t
In the case of such a vessel as th
equipped with an auxiliary scres,
includes the use of that screw, and e
the disbursements necessary for fua ir
engine. Now, the disaster which
case no doubt caused the engine t
much greater extent than would ge C
such a voyage, and so caused the disse
coals to be extraordinarily heavy, bu
render it an extraordinary disbursemen
is similar to that of an ordinary s
which, owing to disasters, the voyage
protracted, and, consequently, the owner
ments for provisions, and for the waged
if they are paid by the month, are em
heavy. It is not similar to that d
hiring extra hands to pump, when t
unable to keep the vessel afloat,
penditure which is not only extracting
amount, but is incurred to procure T
extraordinary in its nature. We think
that there is no right to charge this
average, and, consequently, that the re
the verdict for the deft, must be made

COURT OF COMMON PLEAS
Reported by W. GRAHAM and M. W. Mcămale
Barristers-at-Law.

Jan. 26 and 29, 1861.
PAYNTER AND OTHERS v. JAMIS
Charter-party-Payment of freight-Time -
payable "on" delivery.

By the terms of a charter-party freight s
right delivery of the cargo." Is ar
shipowners for freight, to which the
the plts. were not ready and willing to pur
Held, that the deft, was not entitled to di
paying the freight; that the dewrey of
of freight must be simultaneous act »
point of fact they could not take pian
it must be shown that each party
willing to perform his part of the contr
The first count of the declaration w
party, alleging that it was agreed that
be paid as follows: one-third in cash
Bristol, and the other two-thirds on r
of the cargo, by good and approved t
in London at four months, or cash, d
usual interest at the option of the charter
the deft. elected to pay the second
cash, deducting 23 per cent. for four mach
that all things were done and ha
times elapsed necessary to entite
have the deft. pay to them the sid
the deft. did not pay the same, either

bills.

Second count.-That it was agreed plts. and deft. that the pits, should left. certain goods on which certain payable, and that the deft should cash, and tr Freight, one-third with 23 per cent, discount, and all thing c.; yet the deft, did not pay the

Third count.-For money payable i espect of the pits.' having deliverd this request certain goods where en for freight, and thereby lost the or freight of goods carried in the p

ounts stated.

That the said

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Replication taking issue.

At the trial before Pigott, B., at the last assizes for Glamorganshire, it appeared that the plts. were owners of the ship Nimrod, and the deft. was a merchant at Teignmouth. The action was brought for the balance of freight due under a charter-party for goods carried by the plts.' ship from Quebec to Bristol. By the terms of the charter-p rty payment of freight was to become due and be made as follows: "One-third to be paid cash on arrival, and the remainder on right delivery of the cargo by good and approved bills payable in London at four months following, or cash, deducting the usual interest, at charterer's option."

[C. P.

him, and that the plts. were not ready or willing to deliver the cargo except on prepayment of freight, to which they were not entitled.

Giffard, Q. C. and Michael showed cause.-The question arises on the readiness and willingness to deliver, and that is determined by the finding of the jury. The contention on the other side is, that we were bound to give credit, but neither party was bound to trust the other. It is admitted that the plts. were not entitled to prepayment, but they were ready and willing to hand over the whole cargo on the freight being paid. The provision as to the deft.'s option to pay in cash or bills might be struck out of the charter-party, as the jury have found that he exercised his option and elected to pay in cash.

port of the rule. The plts. were bound to deliver in Bowen, G. B. Hughes, and Watkin Williams in suporder that we might have an opportunity of inspecting the cargo and seeing that it was all right before

we paid :

Moller v. Young, 25 L. J. 94, Q. B.; Foster v. Colby, 28 L. J. 82, Ex. The freight is payable on delivery of the cargo, that is immediately after delivery. Freight is not payable at common law till delivery is made:

Maclachlan on Shipping 365;

Richie v. Atkinson, 10 East, 295. The deft. could exercise his option to pay in cash or bills at any time till payment was actually made, and he is not concluded by having said that he would pay in cash.

The vessel arrived at Bristol on the 17th Oct., the deft. being there at the time. The deft. paid the captain one-third of the freight in accordance with the terms of the charter-party, and agreed to pay BOVILL, C. J.-We have felt some embarrassment the remainder in cash on being allowed interest at on account of the terms of the rule, and on carefully the rate of 7 per cent. per annum. On the 21st looking at the findings of the jury, and after hearing Oct. the deft. received an application from the plts.' Mr. Giffard, I cannot find that the point raised brokers for 600l. on account of freight, stating that by the rule was made at the trial. We must look a portion of the cargo had been delivered, and that at the charter-party and the findings of the jury and they insisted on a portion of the balance of freight place a construction, and a reasonable construction, being paid before the whole of the cargo was dis- upon each. No doubt the question intended to be charged. To this the deft. replied on the 25th Oct. raised was the meaning of the charter-party. The that he declined most positively to pay any more words are," the freight to be paid one-third in cash freight till the captain was in a position to settle it on arrival at Bristol." There is no question as to according to the terms of the charter-party. And the one-third, and the question as to the remainder on the same day he gave the captain notice that he arises on the following words: "and the other had appointed Messrs. May and Hassell to receive two-thirds on right delivery of the cargo by good the cargo, and that he should hold him responsible and approved bills payable in London at four months for any damage he might sustain by reason of the or cash, deducting the usual interest, at the option non-delivery. After some further correspondence of the charterer." That must be taken as "twothe captain, on the 30th Oct., gave the deft. notice thirds on right delivery of the cargo, payment to be that he was willing and ready to deliver the cargo in cash," as the option had been exercised. Then upon the deft. tendering him payment of freight ac- what is "on right delivery of the cargo?" The concording to the terms of the charter-party. In tention at the trial was that the plts. were to be answer to this the deft. wrote that the captain was paid on delivery. Now the deft. has shifted his not entitled to any more freight till the cargo was ground and contends that he was entitled to delivery delivered, and that he should decline to pay any before payment, and it is said that "on delivery" more till the cargo was delivered according to the means that the delivery is a condition precedent to the terms of the charter-party. The captain thereupon payment, but the word "on" has received a concommenced discharging the cargo alongside the struction in the case of Reg. v. Humphrey, 10 A. & ship, but declined to deliver it till freight was paid, E. 335, which my brother Willes has referred me to. and on the 8th Nov. this action was commenced. The question there arose as to whether a declaration to be made "upon admission" to an office was to be made within a reasonable time after the admission, and the Court of Q. B. were of opinion that it was sufficient if the oath was taken after admission, but the case came before the Ex. Ch., and that Court says: "The words of the Act, upon his admission,' do not, as it appears to us, mean after the admission has taken place, but upon the occasion of or at the time of his admission ... The word 'upon,' in different cases, may undoubtedly mean before the act done to which it relates, or simultaneously with the act done, or after the act done, according as reason and good sense require the interpretation with reference to the context and the subject-matter of the enactment." That is a very

The question never went to the jury, but it was agreed that it should be taken that the jury found that the deft. exercised the option to pay cash, that the plts. were not ready and willing to deliver the cargo without cash, but that they were on being paid cash, and that they unloaded and rafted the timber ready for delivery. The verdict was entered for the plts., leave being reserved to the deft. to move; the court to have power to draw inferences of fact that a jury might draw not inconsistent with the above finding.

Bowen in Michaelmas Term obtained a rule to enter the verdict for the deft., on the ground that the deft. was under no obligation to pay the residue of the freight before the delivery of the cargo to

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The

[Ex. CH.
where the deft. was not ready. Pordage v. Cole,
1 Wms. Saund. 320, shows that where such acts as
this are to be done, which in point of fact cannot be
done concurrently, there must be a readiness and
willingness on both sides.
Rule discharged.

Attorneys for the plts., Williamson and Hill.
Attorneys for the deft., Cotterill and Sons.

clear statement of the various meanings that may be
put upon the word "on;" it may be before, at, or
after, and we must look at the intention of the
charter-party. Could it be the intention of the plts.
that they should lose their lien? Could that be
the construction of the charter-party? One would
suppose that the two things should be done simul-
taneously, that the plts. should be paid at the time
of delivery. If a man is ready to pay the freight
he is entitled to the delivery, and he is not entitled
to delivery if he is not ready. There is a case of
Black v. Rose, 2 Moo. P. C. C., N. S., 277, to which
my brother Willes has called my attention.
point there was very similar to the present case,
and the Privy Council affirmed the judgment of the
court below to the effect that the terms of the
charter-party, that the freight should be paid on
delivery, entitled the master to demand freight at
the time of delivery, irrespective of the custom of (Before
the port of delivery. That seems to determine this
question if authority were necessary. Neither
party is entitled, the one to delivery without pay-
ment of freight, or the other to freight without
delivery. That being so on the construction of the
charter-party, it is said that the finding of the jury
is ambiguous, and there is the same ambiguity as
to the meaning of the word "on." I understand
the finding to be, that the pits. were ready to
deliver on being paid cash at the time of delivery.
It was the deft. who was not ready to pay, and he
insisted on having the cargo before he paid, the
effect of which would have been, that the plts. would
have lost their lien. The next point, that the plts.
were not ready and willing to deliver the cargo
except on prepayment of freight, is disposed of by
what I have already said, and therefore I think the
rule should be discharged.

WILLES, J.-Not having heard all the arguments, I take no part in the decision, but I agree so far as I have heard them.

M. SMITH, J.-I am of the same opinion. The question turns on the words of the charter-party : "One-third in cash on arrival at Bristol, and twothirds on right delivery of the cargo by good and approved bills payable in London, or cash, at the option of the charterer." It was contended at the trial that the true meaning of this clause was, that the freighter was entitled to have entire delivery of the cargo, and that the shipowner was to part with his lien, making the delivery a condition precedent to the right to freight, and leaving to the shipowner nothing but his right of action. I think that is not the right construction, but that the payment of freight and the delivery were to be concurrent acts. There is no authority in favour of the contention of the deft. The case of Foster v. Colby, cited by Mr. Hughes, was a right decision, but it was on quite a different charter-party. The shipowner there had not stipulated that his lien should continue, and freight was to be paid two months after the ship was reported. Then it is said that the plts. were not ready to deliver, and that they demanded freight before they were ready to deliver. But it seems from the evidence and the finding of the jury that they were ready. I understand that there must be a concurrent readiness and willingness to deliver and to pay the freight, and when the case comes to the jury they must be satisfied that the one in default was ready to perform his part of the stipulations if the other was also. Here the plts. were both ready and willing to deliver, but the deft. was neither ready nor willing to pay the freight. Upon the whole, therefore, I think, that the plts. were ready and willing to perform their part of the contract, and that is sufficient to entitle them to maintain this action,

EXCHEQUER CHAMBER.
Reported by E. LUMLEY, Esq., Barrister-at-Law.

ERRORS FROM THE EXCHEQUER.

Friday, Feb. 8, 1867.

WILLES, BLACKBURN, KEATING, MELLOR,
SMITH, and LUSH, JJ.)

WILSON v. JONES.

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Marine insurance-Atlantic Telegraph Cable-Subject-
matter insured-Perils insured against-Total loss.
The plt. being a shareholder in the Atlantic Telegraph
Company, by a policy of insurance the material parts
of which were as follows, caused himself to be insured:
"Lost or not lost, at and from Ireland to Newfound
land, the risk to commence at and from and including
the lading of the cable on board the Great Eastern,
and to continue until the said cable be laid in one
continuous length between Ireland and Newfoundland,
and until 100 words shall have been transmitted from
Ireland to Newfoundland and vice versa, the risk
on this policy then to cease and determine, upon any
kind of goods and merchandises, and also upon the
body, &c., of the good ship or vessel called the Great
Eastern."
The policy then went on :
"The
said ship, &c., goods, and merchandises, &c., for so
much as concerns the assured by agreement between the
assured and the assurers in this policy, are and shall
be valued at 2001. on the Atlantic Cable value, sag, on
twenty shares valued at 10l. per share (and it is hereby
agreed and understood that this policy, in addition to
all perils and casualties herein specified, shall cover
every risk and contingency attending the conveyance
and successful laying of the cable from and including
its lading on board the Great Eastern until 100 words
be transmitted from Ireland to Newfoundland, and
vice versa, and it is distinctly agreed and declared
that the transmission of the said 100 words from Ire-
land to Newfoundland, and vice versa, shall be as
essential condition of this policy). Touching the ad
ventures and perils which we the insurers are contented
to bear, and do take upon ourselves in this voyage, they
are of the seas, &c., and of all other perils, losses, and
misfortunes that have or shall come to the hurt, &c., of
the said goods, &c., and ship, &c., or any part thereof,
&c."

The Great Eastern had started with about 2200
miles of cable on board, and had laid from 1100 to
1200 miles, when a fault having been discovered, the
cable had to be hauled in, and while this was bring
done, the weather being fair at the time, the strain
proving too great, the cable parted and part went to
the bottom. The Great Eastern then returned to port
with the remainder :

Held (affirming the decision of the Court of Ex.) that the risk by which the loss occurred was a rist insured against by the policy, and that upon the true construction of the policy the insurance being on the expected profits of the adventure, there was a total loss. This was an action by a shareholder in the Atlantic Telegraph Company, against an underwriter upon a policy of insurance.

The policy, the more material parts of which are

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ERRORS FROM THE BICHENE

Friday, Feb. 8, 1867.
(Before WILLES, Blackburn, Kram
SMITH, and LUSH, J.,
WILSON #. JONES

Marine insurance—Atlantic Telegraph Case
matter insured-Perils insured agus

The plt. being a shareholder in the Amer
Company, by a policy of insurance te ver.
of which were as follows, caused me
Lost or not lost, at and from Ireads.
land, the risk to commence at and fr
the lading of the cable on board the Gras
and to continue until the said ab
continuous length between Ireland and Nor»
and until 100 words shall have been tr
Ireland to Newfoundland and vice ve
on this policy then to cease and determ
kind of goods and merchandises, and os
body, &c., of the good ship or vessel col-
The policy the
Eastern."

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given above, together with the pleadings and the
facts of the case, is fully set out in 14 L. T. Rep.
N. S. 65. The words inclosed in brackets were
written in the margin of the policy, which was in
fact an ordinary printed form of marine policy with
blanks to be filled up, opposite to the clause
"touching the adventures and perils, &c."

A verdict was entered for the plt. for the full
amount claimed on the policy, leave being reserved
to the deft. to move to enter the verdict for himself
on the ground that the loss was not by the perils
insured against, or, if any, only an average loss, and
there was no evidence to show that it was higher
than 3 per cent.

The Court of Ex. discharged a rule obtained
accordingly by Brett, Q. C., and against this de-
cision the deft. now appealed.

Brett, Q. C. (with him Cohen) for the app.-There
are two questions; first, what is the subject-matter
of the insurance: secondly, whether the loss was by
a peril insured against. If the insurance is on the
adventure it is a mere wager. [Blackburn, J.—A
wager is when the party has no interest in the
event.] At any rate apt words must be used in the
description of such a subject-matter. The usual
form of marine policy is used, and the sort of
insurance suggested is not one which an underwriter
would contemplate or be likely to enter into. Now
here the plt. might very well intend to insure the
cable as that upon the safety of which the success
of the adventure depended. The cable is a part of
the property of the company in which he is a share-
holder, and he is therefore interested in it as being
part of such property. The insurance is expressed
to be "on the Atlantic Cable," and what follows is
merely inserted to make the policy a valued instead
of an open policy. The words describe the subject-
matter, and then the interest which the plt. has in
that subject-matter. The clause relating to the
transmission of the hundred words simply defines
the duration of the risk, and does not alter the
subject-matter of insurance. If this be so, there is
no total loss. [SMITH, J.-It is difficult to see what
would be a total loss according to your contention.
Then has there been a loss by the perils insured
against? The words in the margin must be read as
following the printed words specifying the risks
insured against, and then, according to the well-
known rule, they must be construed as extending
to risks only ejusdem generis. [BLACKBURN, J.-But
that would be to give them no further meaning than
the general words at the end of the printed clause,
and so in fact no sense at all.] They may have a
more extended sense than that, but they cannot
include the incidents of an ordinary and success-
ful voyage. Nothing here happened to cause
the loss, but that which occurs on every ordinary
voyage. This is like the case of a ship sinking in a
perfectly calm sea: that would be no evidence of a
loss by any peril against which the underwriters
insured, but only of a loss through some defect in
the ship itself. [WILLES, J.-I do not know that it
can be said as a matter of law that in such a case
the judge ought to direct a verdict for the defts.]
The jury would not be justified in such a case in
ing that there was a loss by the perils of the sea. But
assuming that the loss here was by a peril insured
against, how can it be a total loss? Looking at the
case in either aspect, as one of insurance on the
cable or one of insurance on the adventure, there is
not a total loss. In the first case it is clear there
was not. In the second case the adventure was not
totally lost. Part of the cable remained, and the
value of the shares was not totally gone. In fact, by
what took place it was shown that the part of the
cable that had sunk could be recovered. [BLACK-
BURN, J.-Is not that like the case of a capture,

said ship, &c., goods, and merchcodes to
much as concerns the assured by agreea
assured and the assurers in this pa
be valued at 2001. on the Atatic Cale
twenty shares valued at 101. per share
agreed and understood that this pay
all perils and casualties herein speed
every risk and contingency attendy; in
and successful laying of the cable from
its lading on board the Great Eastern
be transmitted from Ireland to Nig
vice versa, and it is distinctly g
that the transmission of the said 199
land to Newfoundland, and vice
essential condition of this policy). I
ventures and perils which we the in
to bear, and do take upon ourselves to a
are of the seas, &c., and of all other p
misfortunes that have or shall cost
the said goods, &c., and ship, fr,
&rc."

The Great Eastern had started
miles of cable on board, and had les
1200 miles, when a fault haring bers bo
cable had to be hauled in, and
partes ces
done, the weather being fair
proving too great, the cable
the bottom. The Great Eastern d
with the remainder:

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Ield (affirming the decision of the
that the risk by which the last attr
insured against by the policy.
construction of the policy the
expected profits of the adventure,
his was an action by a s

Company,

453

[Ex. CH.

where there is a total loss at one time although a spes recuperandi remains, and if the ship be recaptured what was once a total becomes only an average loss?] From that instant the ultimate success of the adventure became morally certain. Then it was said that the insurance was on the success of the adventure on that voyage. That is nowhere stated in the policy. Surely it would be a construction leading to strange results. Suppose some trifling accident occurred which prevented the cable from transmitting messages for the time, but that the mischief could easily be remedied after the voyage, then, though the value of the shares would rise greatly, the underwriters would be liable to pay the full amount as though the whole adventure had totally failed. The contract would not then be one of indemnity, but like a mere wager that the cable would be successfully laid in a certain space of time, three months for instance, which would be lost if it was successfully laid within three months and a day. He cited

Paterson v. Harris, 1 B. & S. 336; 5 L. T. Rep. N. S. 53.

Temple, Q. C. (with him L. Temple), for the resp., was not called upon.

WILLES, J.-This is an appeal from a decision of the Court of Ex. discharging a rule to enter a verdict for the deft. in an action on a policy of insurance on the ground that the loss which occurred was not a loss by a peril of the sea, or any other peril insured against; and, secondly, that if it was it was not a total loss, and that there was no proof that the average loss was over 3 per cent. In deciding this case almost everything depends upon the construction of the policy, consisting in this case of written words superadded to an ordinary printed form, and this construction we must therefore now consider and decide upon. Now this was a policy of very unusual character, containing provisions for the insurance of an undertaking of a very novel and speculative description; an undertaking by which a joint-stock company sought to establish, for profit to themselves, a telegraph across the Atlantic, for which purpose it became necessary to lay down a cable at the bottom of the ocean for a distance of over 2000 miles. This was a project involving great risk and uncertainty, and until the cable was laid, the shares in the undertaking were, of course, of very questionable value, but it was expected, and no doubt with reasonable probability, seeing the great efforts that were made to carry out the project, that if success were attained, very large profits would be made. In this undertaking the plt. had shares. Now, it is most material to observe the character of his interest and position as the holder of these shares. The proposition, which was very properly assumed in the argument, and might be asserted without the necessity of referring to any authority, but which is the result of what has been decided in the highest tribunal, was this, namely, that the plt., in respect of his shares in this joint-stock company, had no immediate interest in the cable itself. The say-shareholders have an interest in the profits, but not in the property of the concern itself. Upon this principle is founded the decision that shares in a company are not within the Mortmain Act. So here we have a person who has an interest in the profits to be earned by the cable if laid, but not a direct interest in the cable, insuring the expected profits against perils which are expected to happen. We must read the policy with reference to that state of things and of law, with which men of business must be taken to be familiar. Let us then look at the language used to see what the plt. intended to insure. Was it his interest in the cable or

Ex. CH.]

WILSON V. JONES.

[Ex. CH. speculative contracts in which the parties have an interest, but only what are ordinarily known as wagers; that is to say, bets on future events, not indemnities against injury to an interest practically distinguished from wagers. Then it is said that this is an unusual kind of insurance, and the court ought not to come to the conclusion that the underwriters meant to insure profits so speculative and so unusual a subject of insurance. The answer is, that the only proper conclusion to be come to in respect of such considerations is to make quite sure that the insur-language used has the novel effect attributed to it, but not to be deterred from giving effect to it if it has because this is a novel kind of insurance. A similar kind of argument was used in McSwiney v. The Royal Exchange Insurance Society, 18 L.J. 193, Q. B.; 14 Q. B. 634. That was a case of insurance of profits on goods. McSwiney had bought 6000 bags of rice in India, and sold them at a distant port, and insured the profits upon the rice. When the ship was at Madras ready to receive the 6000 bags, and 1200 had been put on board, she was blown out to sea and injured, so that the rice on board was spoiled, and the remainder had to be sent later in another ship. The plt.'s contract for sale of the rice could not be fulfilled, and the profits of it were lost. The underwriters settled the claim of the plt. so far as the loss of profit on the 1200 bales was concerned, but resisted any claim in respect of the special profits and the quantity not shipped. The argument used was that the profits in question were not sufficiently described in the policy, and also the subsidiary point was taken that the profits were only insured in respect of goods actually loaded. The judgment was for the plt. in the Q. B., and no one ever suggested that the policy was void from the special nature of the thing insured. That judgment was afterwards reversed in the Ex. Ch. on the ground that the language used was not sufficient to constitute an insurance upon the special profit, and against the risk in question. The judgment of Parke, B. ends thus: "If, indeed, it attached to the profit of those on shore, there has been no loss of that profit by perils of the seas, but only a retardation of the voyage for which the defts. are not responsible unless on a policy specially providing for such an event." The policy before us seems to have been drawn up by some skilful person, or in accordance with good advice, with especial reference to the perils peculiar to the matter insured. Now, this being an insurance upon the undertaking or adventure, it is proper to consider what that adventure was, the profits of which were thus insured. The language describing the voyage is as follows: "At and from and including the lading on board the Great Eastern steamship, and to continue until the said cable be laid in one continuous length between Ire land and Newfoundland, and until one hundred words shall have been transmitted from Ireland to Newfoundland and vice versa." The last part is considered so important that it is repeated again, and made an essential condition of the policy. The conclusion, then, that it appears reasonable to draw is, either that it was an insurance on the adventure, limited to the endeavour on that occasion to lay the

in the profits to be made by the cable, if it should survive all contingencies and become successful, as it must be taken between these parties would have been the case if the hundred words were safely transmitted? That is the first question. Then if the language is plain as to the subjectmatter insured, that is to say, that it is the interest of the plt., it will be plain that the insurance is upon the interest in the expected share of the profits itself, and not on the shares themselves, or the cable in any other sense than as connected therewith. It was, no doubt, in one sense an ance on the cable, that is to say, affecting the cable. It is just like the case of an insurance of freight; that is an insurance affecting the ship; the two things are so connected that they cannot be dissevered except in cases where the freight is affected by the loss of goods. And then again it may be said that the insurance of freight is an insurance of goods; that is connected with goods, because if the goods are lost the insurers will be liable for the freight just as if the ship was lost. Now, except in this sense, when the words here used are looked at, it is plainly an insurance on the plt.'s interest in the profits of the undertaking or adventure. We shall have presently to determine whether that is the adventure as limited to the attempt to lay the cable on this occasion, or as extended to any other attempt. The first part of the description is as follows: "The said ship, &c., and merchandise, &c. for so much as concerns the assured by agreement between the assured and the assurers in this policy, are and shall be valued at 2004. on the Atlantic Cable." If that stood alone, that would not be a sufficient description of what we think the plt. intended to insure. Whether the plt. would have had a sufficient interest within the statute in that case, I do not wish to express an opinion, and I only mention the point lest, as it was mentioned, we might be thought to have overlooked it. The policy then goes on," Value, say twenty shares, valued at 107. per share." Thus, we have language qualifying the previous language, followed by a context plainly showing that the plt.'s interest in the profits to be derived from his shares was what was insured for; then follow, or, to be more strictly accurate, are inserted in the margin, these words in writing: "It is hereby agreed and understood that this policy, in addition to all perils and casualties herein specified, shall cover every risk and contingency attending the conveyance and successful laying of the cable from and including its lading on board the Great Eastern steamship until one hundred words be transmitted from Ireland to Newfoundland and vice versa "-words specially excluding an interpretation confined, as suggested in the argument, to perils of the seas, or perils included in the more general words at the end of the printed enumeration of perils insured against, and referring to the peculiar and especial perils and casualties to which this novel subject of insurance would be exposed. Then follow these words: "And it is distinctly agreed and declared that the transmission of the said one hundred words from Ireland to Newfoundland, and vice versa, shall be an essential condition of this policy." On looking to the subject-cable, and then failure on that occasion would be a matter of insurance and those words it is impossible to avoid coming to the same conclusion as Martin, B. came to at the crial, and which was afterwards confirmed by the Court of Ex. Mr. Brett has argued against this conclusion. His argument at one time almost amounted to this: that if the court should put this construction upon the policy the result would be that the parties really entered into what was only a wager. Now, if by that is meant a wager such as would come within the 8 & 9 Vict. c. 109, I have no hesitation in rejecting that suggestion, because that Act certainly does not affect

total loss, or that it must at least be imputed to the parties that their view when using the language they have done was, that unless the desired result was brought about on that occasion, it was to be taken that there was an end of the matter. That at least is the construction one would be inclined to put upon the words which say that the transmission of the 100 words shall be an essential condition of this policy. They thought that it was all up with the adventure unless the cable could then be so laid as to transmit the 100 words. I will now proceed to the second question. That was, whether

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