V. ELLIOTT. 1873 words to extend it to terrene risks. There are no such words in this RODOCANACHI Policy; but, on the contrary, it bears internal evidence that it was never intended to have the extended meaning contended for on the part of the plaintiffs. It is said in 1 Arnould on Insurance, 4th ed., 369, that "the general rule is clear, that the underwriter in a seapolicy insures only against sea risks; the risk on goods, therefore, ends directly they are put on terra firma, unless they are placed there only for a temporary purpose, or under such circumstances as to be protected by the usage of the trade." For this general position Mr. Arnould cites Harrison v. Ellis (1), contrasted with Pelly v. Royal Exchange Assurance Co. (2) and Brough v. Whitmore. (3) In Harrison v. Ellis (1), the policy contained a memorandum "with liberty to load, re-load, exchange, sell, or barter, all or either, goods or property on the coasts of Africa and African islands, and with any vessels, boats, factories, and canoes, &c., without being deemed a deviation," and the Court held that there was nothing in the language to indicate an intention to extend the policy to a terrene risk. So here, there is nothing in this policy to shew that a terrene risk was intended to be covered. voyage contemplated was from Japan or Shanghai to London. [BRETT, J. Viâ Marseilles.] The The voyage or transit contemplated might have been performed without any land journey; the memorandum was inserted merely for the purpose of rendering the assured irresponsible for a deviation if they elected that mode of transit. [BRETT, J. The question is whether it does not make the journey from Marseilles to Boulogne part of the voyage. BOVILL, C.J. Whether the goods came by way of Marseilles or Southampton, they must come part of the way overland.] That may be; but they might have come by the Mercantile Trading Company of Liverpool, and so all the way by sea. There would be no deviation, if the goods came overland from Suez to Alexandria; but they would not be covered during that transit by this policy. [BRETT, J. That is precisely the same question.] Then, has there been any loss at all? The goods arrived in (2) 1 Burr. 341. 1873 v. ELLIOTT. safety in Paris in charge of the carriers appointed by the plaintiffs. They always remained at the disposal of the plaintiffs, RODOCANACHI though it was uncertain from day to day when they could pursue the voyage. They continued there only because it was inconvenient to remove them. It was the same as if the ship was wind-bound. A mere retardation of the adventure, the goods not being of a perishable nature, does not constitute a loss by a peril insured against: Hunt v. Royal Exchange Assurance (1); Anderson v. Wallis. (2) Then, as to the exception of restraint of princes: There is a wide distinction between an ordinary contract with an exception of this sort, and a contract of insurance: Geipel v. Smith. (3) In marine policies, the proximate cause of loss only, and not the remote cause, is regarded: Barker v. Blakes (4); Forster v. Christie (5); Taylor v. Dunbar. (6) The exception of restrain of princes has never been extended to blockade. In Hadkinson v. Robinson (7), Lord Alvanley says: "The policy includes capture and detention of princes; and any loss which necessarily arises from such acts is a loss within the policy. But it has appeared to me that, where underwriters have insured against capture and restraint of princes, and the captain, learning that if he enter the port of his destination the vessel will be lost by confiscation, avoids that port, whereby the object of the voyage is defeated, such circumstances do not amount to a peril operating to the total destruction of the thing insured." Embargo is entirely distinct from blockade; it is a hostile act of the rulers at the port. [BRETT, J. "Seizure" is a taking possession of goods for the purpose of confiscating them. "Arrest" is a taking with the intention of restoring them at one time or other. "Restraint" is the preventing the goods from being got away, without laying hands upon them. Is there any real distinction between blockade and the state of siege occurring in this case ?] There is no analogy between a land siege and a state of naval blockade. "An embargo," says Mr. Arnould, vol. 2, p. 700, 4th ed., " is an order of government (generally, but not always, issued in (1) 5 M. & S. 47. (2) 2 M. & S. 240. (3) Law Rep. 7 Q. B. 404. (4) 9 East, 283. (5) 11 East, 205. (6) Law Rep. 4 C. P. 206. VOL. VIII. 3 E 2 1873 contemplation of hostilities,) prohibiting the departure of ships or RODOCANACHI goods from some or all of the ports within its dominions." With v. ELLIOTT. respect to blockade, Wheaton (International Law, 2nd ed. p. 843) says: "Where goods were sent into a blockaded port before the commencement of the blockade, but re-shipped by order of the neutral proprietor, as found unsaleable during the blockade, they were held entitled to restitution. For, the same rule which permits neutrals to withdraw their vessels from a blockaded port extends also, with equal justice, to merchandize sent in before the blockade, and withdrawn bonâ fide by the neutral proprietor:" The Potsdam (1); Olivera v. Union Insurance Co. (2) The difficulty or impossibility of removal of the goods here arose, not from any hostile intervention of either of the belligerents, but was occasioned by the state of things existing outside of Paris. Field, Q.C., in reply. This is not a mere marine policy. The transit contemplated was to be performed partly by land and partly by sea; and the insurance was to continue throughout the whole of that journey, and until the goods "should arrive at as above." It distinctly covers the whole journey from Shanghai to London viâ Marseilles: Boehm v. Combe. (3) What else, as Lord Ellenborough asked in that case, could the assured mean to insure? Wheaton, at p. 819, places siege and blockade in the same category. "Another exception," he says, "to the general freedom of neutral commerce in time of war is to be found in the trade to ports or places besieged or blockaded by one of the belligerent powers. Thus, Grotius (4) forbids the carrying anything to besieged or blockaded places, 'if it might impede the execution of the belligerents' lawful designs, and if the carriers might have known of the siege or blockade; as in the case of a town actually invested, or a port closely blockaded, and when a surrender or peace is already expected to take place.' Chief Justice Marshall, delivering the judgment of the Supreme Court of the United States in Olivera V. Union Insurance Co. (5), says: "If a blockade be a 'restraint,' the insured are protected against it, although it be neither an 'arrest' nor a 'detainment.' What, then, according to common (1) 4 C. Rob. Rep. 89. (4) De Jur. Bel. ac Pac. lib. iii. c. 1, § 5, n. 3. (5) 3 Wheaton's Rep. 183, 189. v. ELLIOTT. understanding, is the meaning of the term 'restraint? Does it 1873 imply that the limitation, restriction, or confinement must be RoDOCANACHI imposed by those who are in possession of the person or thing which is limited, restricted, or confined? or is the term satisfied by a restriction created by the application of external force? If, for example, a town be besieged and the inhabitants confined within its walls by the besieging army, if in attempting to come out they are forced back, would it be inaccurate to say they are restrained within these limits? The Court believes it would not; and, if it would not, then with equal propriety may it be said, when a port is blockaded, that the vessels within are confined or restrained from coming out. The blockade force is not in possession of the vessels inclosed in the harbour, but it acts upon and restrains them. It is a vis major applied directly and effectually to them, which prevents them from coming out of port. This appears to the Court to be, in correct language, a 'restraint' of the power imposing the blockade; and, when a vessel attempting to come out is boarded and turned back, this restraining force is practically applied to such vessel.” [BRETT, J. That seems to be exactly to the point.] Most of the cases relied on for the defendants are decisions upon charterparties. The doctrine of Geipel v. Smith (1) is carried out in the cases of The Heinrich (2), The San Roman (3), and The Express. (4) The assured is clearly restrained from carrying on the adventure, when he is prevented from getting the goods to carry. The distinction between a mere retardation and the loss of the voyage is well illustrated by Roux v. Salvador. (5) [BOVILL, C.J. In Boehm v. Combe (6) it seems to have been assumed that the risk was covered by the policy. It was not contended that the policy did not apply to the land part of the Voyage.] BOVILL, C.J. I cannot entertain the least doubt that the object of the plaintiffs in effecting these policies was to cover the goods from the time of their departure from Shanghai until they should (1) Law Rep. 7 Q. B. 404. (2) Law Rep. 3 A. & E. 424. (3) Law Rep. 3 A. & E. 583. 3 E 2 (4) Law Rep. 3 A. & E. 597. (5) 3 Bing. N. C. 266. (6) 2 M. & S. 172. 2 1873 have arrived at the terminus of the journey, viz. London, and that RODOCANACHI their general intention was that the policies should cover all risks v. ELLIOTT. during such transit as well by land as by water. But the question is whether that intention has been expressed by the terms in which the policies are framed. That must depend mainly upon the policies themselves; but, at the same time, in order to ascertain to what the words of the policies were intended to apply, we must not forget what was the usual course of business in such transactions. The course of business, as stated in par. 12 of the special case, was this," Goods were never, in the ordinary course of business, carried from China, Japan, or India to London viâ Marseilles, except by the Messageries Impériales; and that company always sent such goods overland through France, that is to say, by the Lyons railway from Marseilles to Paris, and thence by the Northern railway to Boulogne, and thence to London." Then there is this further statement,-"It was well known among underwriters that goods sent from China, Japan, or India to London viâ Marseilles, were always sent overland through France." It was further admitted on the argument, though there is no statement to that effect in the special case, that silk sent to London viâ Southampton would in the ordinary course of business pass by railway from Southampton to London; and it must be assumed that this also was well known among underwriters. Now, what are the terms of these policies? The statement is that the plaintiffs "caused themselves to be insured, lost or not lost, at and from Japan and [or] Shanghai to Marseilles, and [or] Leghorn, and [or] London viâ Marseilles and [or] Southampton, and whilst remaining there for transit," &c. What meaning are we to attach to these words? According to the usage, the transit to London via Marseilles necessarily includes an overland journey through France; and the statement in the policies must be taken to mean the same as if it had been expressly stated therein that the insurance was to protect the goods whilst on their transit by railway from Marseilles to Paris and thence to Boulogne, or, if viâ Southampton, whilst passing by railway from Southampton to London. The description, therefore, of the entire voyage or journey clearly embraces a passage by land as well as by water. The fair interpretation of the language, as it seems to me, is, that the |