Reported b y J. Sh o r t t, M. W . I McKe l l a k, and J. P . As p i n a l l, Esqrs., Barristers-at-Law.
Tuesday, May 30, 1871.
Be c k e t t v. Th e West oe En g l a n d Ma r in e In s u r a n c e Com pany ( Li m i t e d) .
Marine insurance—Construction of policy—Incep
tion of risk—Policy on freig ht—Goods not on hoard—A t and from.
A ship was chartered lo carry a cargo from Liver
pool to Lagos, on the west coast of Africa, there discharge and reload another cargo fo r the United Kingdom, in consideration of a lump sum by way of freight, payable half before sailing from Liver
pool, h alf on delivery of the homeward cargo.
The pla intiff, the shipowner, effected an insurance on freight “ at and from Lagos,” and the policy contained a clause whereby the defendants, the insurance company, agreed that the insurance
“ shall commence upon freight and goods or mer
chandise aforesaid from the loading of the said goods or merchandize on board the said ship or vessel at as above.” The ship was lost before she had shipped any of her homeward cargo.
Held, that this clause precluded the p la in tiff from recovering against the underwriters, although the freight was chartered freight.
De c l a r a t io n on a policy of insurance (afterwards set out), upon freight to be earned by the ship Gem, under a charter party (afterwards set out), lost or not lost, at and from Lagos and [or] any place or places on the west coast of Africa, between Cape Palmas and Cape Formosa to any port of call, and [o r] discharge in the United Kingdom ; the insurance to commence upon the freight and goods or merchandise aforesaid from the loading of the said goods or merchandise on board the said vessel, alleging interest in the freight, and loss of the vessel by the perils insured against whilst in Lagos Roads and during the continuance of the risk. Pleas: First, denial that the defen
dants became insurers; secondly, denial of in terest ; thirdly, that the policy was not made for the benefit, or by the authority of the said persons interested as alleged; fourthly, denial that the ship was under charter; fifthly, denial of loss;
sixthly, that the loss of the said ship and subject- matter of insurance did not happen during the continuance of the said risk, but before the same had commenced, and before the said ship was at Lagos, or any place on the west coast of Africa between Cape Palmas and Cape Formosa, within the meaning of the said policy.
On these pleas the plaintiffs joined issue.
A t the tria l before Blackburn, J., at Guildhall, sittings after Michaelmas Term, 1870, it appeared that the plaintiff was a shipowner at Glasgow, and that the defendants were an Insurance Company,
carrying on business at Exeter. On the 26th A p ril 1869 a charter-party was entered into be
tween the plaintiff and Messrs. Holland, Jaques, and Co., in the following terms :
London, 24th April, 1869.
Liverpool, 26th April, 1869.
[Charter-party.]
I t is this day mutually agreed between John Beckett, Esq., owner of the good ship or vessel called the Gem A 1 red., of the measurement of 120 tons or thereabouts, now in Liverpool, and Messrs. Holland, Jaques, and Co., of London, merchants, that the said ship being tight, staunch, and strong, and every way fitted for the voyage, shall receive and take on board in one of the docks and river for gunpowder, all such lawful goods or merchan
dise as the charterers or their agents, may send alongside, and shall forthwith proceed and deliver the same at any place or places on the West Coast of Africa agreeable to bills of lading, as directed by the charterers’ ageDt, between Cape Palmas and Cape Formosa inclusive, and reload a full and complete cargo of African produce ; the vessel to load a full cargo if required inside Lagos Bar, which the said merchants bind themselves to ship, &o., and being so loaded shall therewith proceed to London, and deliver the same (the act of God, &c., excepted).
The freight to be paid as follows : In fu ll for the round the lump sum of 6001. payable by charterers, acceptance at three months’ date for 3001. from day of clearing, and the balanoe on correct delivery of the return cargo, as oustomary, in cash. F ifty running days, &c. [Here fol
low various immaterial clauses.]
„. , ( Ho l l a n d, Ja q u e s, a n dCo. Signed | JoHN Be,’.k e t t .
Pursuant to the charter-party, an outward cargo was shipped at Liverpool by the charterers, con
sisting of eleven bales of cotton goods, to be de
livered at the port of Jellah Coffie, on the West Coast of Africa, and of one hundred cases of hatchets, and fifty tons of salt, and a quantity of mats for dunnage to be delivered at Lagos, and for this cargo the master signed bills of lading on 10th May.
On 11th May the policy in question was effected by the plaintiff’s brokers, and its material parts are as follow :
West of England Insurance Company (Limited).
No. 4806. 300i.
Whereas W alker, M artin and Todd have represented to the West of England Marine Insurance Company (Limited) that they are interested in or duly autho
rised as owner, agent, or otherwise to make the insur
ance hereinafter mentioned and described with the said company, and have promised or otherwise obliged themselves to pay forthwith for the use of the said com
pany at the office of the said company the sum of 61. as a premium or consideration at and after the rate of 40s. per oent. for such insurance; now this policy of insurance witnesseth that, in consideration of the premises, the said company promises and agrees with the said Walker, M artin, and Todd, their exeoutors, administrators, and assigns, that the said company w ill pay and make good all such losses and damages hereinafter expressed as may happen to be subject matter of this policy, and may attach to this policy in respect of the sum of 3001. hereby declared to be upon freight valued at 3001. the ship or ves
sel called the Gem, whereof is at present master, or whoever shall go for master of the said ship or vessel, lost or not lost, at and from Lagos, and, [or] any plaoe or places on the west ooast of Africa between Cape Palmas and Cape Formosa, to any port of call and [or]
discharge in the United. Kingdom, including all risk of craft, warranted free of captures and seizures, and the consequences of any attempts thereat.
And the said company promises and agrees that the insurance aforesaid shall commence upon the freight and goods or merchandise aforesaid, from the loading the said goods or merchandise on board the said ship or vessel at as above, and continue u ntil the said goods or merchan
dise be discharged and safely landed as at above; and that i t shall be lawful for the said ship or vessel to proceed and sail to and touch and stay at any ports or places whatsoever in the course of her said voyage for a ll
186____________________ M A R I T I M E L A W C A S E S .
Q. B . ] Be c k e t t v. Th e West oe En g l a n d Ma r in e In s u r a n c e Co m p a n y ( Li m i t e d). [Q . B . necessary purposes, without prejudice to this insurance,
and touching the adventures and perils, &c. [Here follow the usual perils insured against, the suing and la
bouring clause, and certain warranties, free from average under 5 per cent., and ship and freight, war
ranted free, average under 3 per cent., unless general, or the ship be stranded.] In witness whereof the said company have hereunto set their common seal at Exeter the 11th M ay 1869.
The Gem left Liverpool on 11th May, and arrived at Jellah Coffie on 12th July, 1869, and there dis
charged the eleven bales of cotton shipped for that place, and after three days’ delay proceeded for Lagos. On 18th July 1869, she arrived in Lagos roads. Between Lagos roads and Lagos harbour there is a bar which makes it necessary for ships drawing more than Oft. of water to discharge part of their cargo into lighters in the roads, so as to enable them to get over the bar into the harbour.
Vessels usually discharged part, i f not all, of their cargoes in Lagos roads, and when the Gem arrived there, several vessels were then discharging in that place. On 19th July, the master gave notice to the consignees that the ship was ready for dis
charging in the roads, and on 21st July a portion of the cargo was discharged, and the discharge continued down to 29th July, when the ship had 87 tons on board, and was drawing only 8Jft. of water, and thereupon the master applied to the consignees for a tug and pilot to take the ship inside the bar to enable her to finish the discharge there, and to commence reloading the homeward cargo in Lagos harbour. On 5th Aug. a pilot came on board and a tug took the Gem in tow, and they proceeded for the harbour, but in crossing the bar the Gem struck the ground and broke the tow rope, and was obliged to put back into the roads. The Gem remained at anchor in the roads, without dis
charging any more cargo, u n til 11th Aug. when another attempt was made to tow the Gem across the bar, but she again struck the ground, and the tug was unable to get her off. The Gem ultimately drifted on the beach, and was abandoned. No portion of the homeward cargo had been shiDped.
Upon these facts, Blackburn, J., ruled that the Gem had arrived “ at ” Lagos within the meaning of the policy, aud so directed the ju rv , and a verdict was entered for the plaintiff for 300Z., but leave was reserved to the defendants to move to enter a verdict, if the court should be of opinion that Blackburn, J., was wrong in his ruling. The words in the policy—“ The insurance aforesaid shall commence upon the freight and goods or merchandise aforesaid from the loading of the said goods or merchandise on board the said ship or vessel at as above” —were not in any way brought to the attention of Blackburn, J., or the ju ry during the trial.
On Jan. 11, 1871, the defendants moved pur
suant to the lease reserved, and brought to the attention cf the court the above clause of the policy, and obtained a rule calling upon the plain
tiffs to “ show cause why the verdict obtained in this cause should not be set aside and a verdict entered for the defendants instead thereof, on the ground that the risk had not attached when the ship was lost.”
May 30.—Manisiy, Q.C. (Barnard with him) showed cause.—This was a policy on chartered freight. I t is not so expressed in the policy, but i t was so in point of fact. The voyage, therefore, must be considered as a whole, and the moment the vessel arrived at Lagos the policy attached.
The ship bad already broken ground upon the voyage on which the freight was to be earned under the charter party by sailing from Liverpool, and on her arrival at Lagos the risk commenced.
When she was in Lagos Boads she was “ at ” Lagos w ithin the meaning of the policy. The fact that she had not discharged the whole of her outward cargo cannot affect the plaintiff’s rig ht to recover: (Foley v. The United Fire and Marine Insurance Company of Sydney, L. Rep. 5 0. P.
155; 22 L. T. Rep. N. S. 108.) The clause in the charter party which provides that the insurance shall commence when goods are on board cannot apply to freight. No doubt i f the policy were ou goods or ship it would prevent the plaintiff from recovering, but with respect to freight can have no more effect than if i t were omitted altogether.
I f it should be held binding it w ill have the effect of rendering void the word “ at,” as the freight would have been uninsured during the greater part of the time the ship was at Lagos. The policy in Foley v. The United Fire and Marine Insurance Company o f Sydney (sup.) was upon chartered freight “ at and from Mauritius to rice ports and Kelly, O.B. says :—“ I t seems to me that it would be a strained construction of the policy to subdivide the period during which the ship was at Port Loui;; into two portions, and to say that she shall not be insured for more than one of these two portions.” This clause in the policy is only the ordinary printed form of the company’s poli
cies, and cannot override an express stipulation applying to a particular adventure.
Watkin Williams (Sir G. Honyman, Q.C., w ith him) in support of the rule.—The plaintiff admits that if this were a policy in goods, this clause would bar his claim, and we contend that w ith this special clause in the policy the words in this case can apply only to freight. The clause is printed and used in policies on goods also. “ A t and from ” are words used in the ordinary form of the policy, and must be qualified by the meaning to be given to the special clause. The risk did not commence until the goods were laden on board, and in this case the outward cargo was not dis
charged [ Co c k b u r n, O.J.—The plaintiff was en
titled to bis freight whether the goods were loaded or not. He gets his chartered freight indepen
dently of the loading. The assured cannot have intended that the policy should not be the same as the risk.] Whether the assured did or not cannot affect the defendants, as the brokers made the policy, and they clearly so intended. Again, there is a difference between freight and chartered freight. [ Bl a c k b u r n, J . —I t has been settled for a century that “ fre ig h t” must-be construed in a policy in its widest sense.] Ordinary policies on freight are made quite irrespective of the goods being laden on board.
Winter v. Iialdim and, 3 B. & Ad. 649;
Potter v. Rankin, L. Rep. 3 C. P. 562 ; 18 L . T . Rep.
N . S. 712; and in the Exchequer Chamber; .Rep.
5 C. P. 341; 22 L . T . Rep. N . S. 347.
The time for the commencement of the insurance is fixed in order to avoid the risk of the most critical part of the voyage, viz., that during which the vessel lies off a dangerous port, as in the present instance, and the words of the policy are expressly framed to meet decided oases. The trade on the west coast of Africa is peculiar, being a barter trade, consequently large quantities of nuts, oil, and other African produce are constantly
M A E IT IM B LA W OASES. 187
Q. B . ] Be c k e t t v. Th e West oe En g l a n d Ma r in e In s u r a n c e Co m p a n y ( Li m i t e d). [Q . B.
in store waiting for ships, which, therefore, have a homeward cargo always ready for them. Then it m ight be said, that a policy of insurance always attached on the arrival of the ship. This clause is inserted to prevent the attaching at that period, and the meaning of it is, that the risk shall not commence u ntil the cargo is loaded, and only then.
Should the court decide against the underwriters of the present policy, more stringent terms muBt be devised and inserted into policies in order to express their obvious intention as to the inceptionof the risk.
This policy is not in the ordinary form of Lloyd’s p o licy; i t is a special form. In Lloyd’s policies, where an insurance is effected on freight, i t is so expressed in the margin of the policy, without the general form being in any way altered, and the clause as to the attaching of the policy is
“ beginning the adventure upon the said goods and merchandises from the loading thereof on board the said ship,” which words are only applicable to a policy on ship or goods. This policy declares the insurance to be on freight in the body of the policy and is on nothing else, and there is a special clause that “ the insurance aforesaid shall commence upon the freight and goods or merchandise aforesaid from the loading,” &c. In this policy this clause can only apply to freight.
Co c k b u r n, 0 . J.—I am of opinion that this rule must be made absolute. The words used are plain, pi’ecise, and perfectly intelligible ; they mean that the risk shall not attach u ntil the goods are actually on board. I did not at first understand how or why such a stipulation as the one in question should be introduced or submitted to on the part of the plaintiff, the shipowner, seeing that his remunera
tion on the charter-party—his freight (the term being applied to whatever was earned by the vessel)—was in no wise dependent on the loading and carrying of the goods, but was for the use of his vessel, whether a cargo was carried or not.
Therefore i t struck me that i f there was any way in which we could read these words, reddendo singula singulis, the argument of Mr. Manisty might prevail; but I think the answer given by M r. W atkin Y/illiams quite conclusive, first, that this clause being part of a printed form of policy cannot be intended to apply to goods, for the simple reason that u n til they were loaded the risk did not attach; but besides that I th ink Mr.
W illiams has given a second very good reason for the insertion of the words by the underwriters, viz., the peculiar difficulty of loading vessels on the west coast of Africa, where they are exposed to dangers of tempests and other perils during the process of loading. That being so, one can quite understand the underwriters saying “ We do not take upon ourselves, without requiring extra premium, the risk of the vessel loading at the coast under these circnmstanCes.” Though i t may be that, they said: “ When the loading is com
pleted and the vessel is over the bar, with a fu ll cargo on board, we w ill undertake it . ” But, even independently of that, I cannot see any possible means of getting over the precise language used in the policy. I think, therefore, that this vessel having been lost before the loading was completed, the risk under the policy never attached, and that the defendants are entitled to judgment, and that the rule must be made absolute.
Bl a c k b u r n, J.—I come to the same conclusion.
Tbe policy of insurance is, in fact, a contract by which the underwriters promise that they w ill
indemnify the assured against certain perils from the particular time. When the clause is looked at, we see that i t amounts to this, that the under
writers insure from the time the cargo is on board, whether the subject matter of the insurance is on freight or on goods. Of course then another ques
tion comes in—i f the freight is merely dependent upon finding a cargo, the ship may never be in a position to earn it. Therefore, although the period may have arrived when the underwriters are responsible for perils, and the ship went down, yet if no freight really existed, i t could not be recover
tion comes in—i f the freight is merely dependent upon finding a cargo, the ship may never be in a position to earn it. Therefore, although the period may have arrived when the underwriters are responsible for perils, and the ship went down, yet if no freight really existed, i t could not be recover