But I find the Norway went to the P rivy Council, and the loss of part of the cargo having been occa
May 29 and June, 2,1873
Ro d o c a n o c h i a n d o t h e r sv. El l io t t a n d o t h e r s.
Marine policy—Terrene risk—Goods shut up in beseiged town—“ Restraint of princes ”—Notice of abandonment— Total loss.
Plaintiffs effected an insurance with the defendants by a Lloyds’8 policy in the ordinary form “ lost or not lost, at and from Japan ~ Shanghai to Marseilles — Leqhorn — London, via Marseilles
— Southampton, and whilst remaining there for transit ” on silks against the usual perils—
“ arrests, restraints, and detainment of princes,’’
&c., and it was agreed that the silks should be shipped by any of three designated lines of steamers, one of which was the Messaqeries Imperiales.
That company, as was well known to under
writers, always sent such goods overland through France, i.e., by the Lyons Railway from M ar
seilles to Paris, and thence by the Northern R ail
way to Boulogne, and thence to London. The silks were shipped at Shanghai for London on board a steamer of the Messageries Imperiales, and reached Marseilles on the 27th Aug. 1870.
There was then, and from the 15th July pre
viously had been war between France and, Ger
many. The silks were despatched by the Lyons Railway and arrived in Paris on or before the 13th Sept. The German armies, which were at that time advancing upon and gradually sur
rounding Paris, on the 19th completely invested it, held military possession of all the roads lead
ing out of Paris, and prevented communication between it and all other places, by reason whereof it was impossible to remove the silk from Paris.
This state of siege continued, and on the 29th Sept., while the silks were detained in Paris, the plaintiffs gavenotice of abandonment to the under
writers :
Held, that the policy covered the terrene risk of the transit through France, that the qoods were lost by the perilsinsuredagainst, viz. ¡restraint of princes;
that notice of abandonment was given in reason-la) This case has been sinoe followed by the Court of Qneen’s Bench in Merchant Shipping Company v. Armi- tago (L. Rep. W . N ., June I t , 1873).
22
M A R IT IM E LA W CASES.
C. P . ] Ro d o c a n o c hi a n d o ther s v. El l io t t a n d o t h e r s. [C . P . able time; and that, therefore, the plaintiffs were
entitled to recover the sum insured from the under
writers as for a total loss.
Ac t io n to recover 4001. on two policies of in
surance—and the following Case was stated w ith out pleadings.
1. The plaintiffs effected insurances on silks by two policies in the ordinary form of Lloyd’s poli
cies. By one dated 24th March, 1870, which was for 15,000Z.,they caused themselves in the words of the policy to be insured as follows, that'is to say :
Lost or not lost at an from Japan ^ Shanghai to Marseilles Leghorn London, via Marseilles Southampton and whilst remaining there for transit, with leave to call at any ports or places in or out of the way for all purposes.
2. The subject matter to bo insured is in the policy described as follows :
The said ship and goods and merchandises, &c., for so much as conoerns the assured by agreement between the assured and assurers in the polioy, are and shall be valued at 15,0001., being on silks, to be hereafter valued and declared.
3. The risks insured against are described in the policy described as follows :
Touching the adventures and perils which we the assurers are contented to bear and do take upon us in this voyage, they are of the seas, men of war, fire, enemies, pirates, rovers, thieves, jettisons, letters of mart and counter mart, surprisals takings at sea, arrests, restraints, and detainments of all kings, princes, and people of what nation, condition, and quality soever, barratry of the master and mariners, and of all other perils, losses, and misfortunes that have or shall come to the hurt, detriment, or damage of the said goods and merchandises or ships, &c., or any part thereof.
4. In the margin of this policy is a memorandum in the following words :
I t is hereby agreed that the silks insured by this policy shall be shipped by Peninsular and Oriental Company, Messageries Imperiales steamers - j - the steamers of the Mercantile Trading Company of Liverpool only. And it is further agreed that on shipments by the last-men
tioned company’s Bteamers, 20s. additional shall be charged.
5. In the above policy, dated tho 8th A p ril 1870, which was for 10001, the voyage and the subject matter insured against are described in terms nearly the same as in the first mentioned policy.
6. The defendants underwrote each policy for 200Z. (Copies of both policies were in the A p pendix to this case, and m ight be referred to as part of this case.)
7. Sixty-four bales of silk, the subject of this action, were shipped at Shanghai on board the Messageries Imperiales steamer Phase, and con
signed to the plaintiffs under a b ill of lading dated 7th July 1870. (A copy whereof was in the Ap
pendix.)
8. The silks were duly declared on the before- mentioned policies and valued at 11,220Z., and 3625Z., part of the said sum of 11,220Z., was de
clared on the first policy, and 7595Z., the residue of the said sum of 11,220Z., was declared on the second policy. These declarations were endorsed on the policies respectively. (Copies of these de
clarations were in the Appendix.)
9. A t the time of the said declarations, and thence u n til the giving of the notice of abandon
ment hereinafter mentioned, the plaintiffs were interested in the silks to the amount of the said sum of 11,220Z.
10. The silks were carried in the said steamer Phase from Shanghai to Hong Kong. They were there transshipped to the steamer Peiho of the same company, the Messageries Imperiales, and they were carried on board tha said steamer Peiho through the Suez Canal direct to Marseilles.
This is the ordinary course of business of the Messageries Imperiales in carrying the goods from Shanghai to Marseilles. Goods from Shanghai for Marseilles are carried by that company from Shanghai to Hong Kong by a branch line of steamers, and the steamers for Marseilles start from Hong Kong. The silks arrived at M ar
seilles on board the said steamer Peiho on the 27th Aug. 1870.
11. The Messageries Imperials carry goods at through rates from Shanghai to London. Freight upon the silks was paid to the Messageries Im periales from Shanghai to London.
r 12. (As amended at suggestion of the Court.) Be
fore and at the time of insurances, the steamers of the Massageries Imperiales ran from the East to Marseilles and no farther. Of those of the Peninsular and Oriental Company, one line ran to Marseilles and no fu rth e r; another ran direct to Southampton. Those of the Mercantile Trading Company ran direct to Liverpool. Goods were never in the ordinary course of business carried from China, Japan, or India to London via Mar
seilles, except by the Messageries Imperiales, 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. Silk is usually, but not invariably, sent by petite vitesse. I t was well known among underwriters that goods sent from China, Japan, or India to London via Marseilles were always sent overland through France.
13. A t the time when the silks reached Mar
seilles there was, and from the 15th July pre
viously had been war between France and Ger
many.
14. On the 15th July 1870, a decree of the French Government was issued in accordance with the Laws of France, whereby both the Lyons Railway Company and the Northern Railway Com
pany were bound immediately to place at the dis
posal of the French Minister of W ar all their means of transport; and whereby the said com
panies were also empowered to suppress passenger or goods trains as far as m ight be necessary to carry out the before mentioned order. (A trans
lation of so much of the decree as was material was in the Appendix.)
15. Notice of the before mentioned decree was on the 16th July 1870 sent to every Btation on each of the said railways respectively. A copy of this decree was posted up in every station of the said Lyons Railway.
16. A fte r the date of the before mentioned decree each of the said railway companies con
tinued to receive goods for carriage and to carry them in the ordinary course, except as hereinafter mentioned, u n til such carriage was interrupted at the times and in the manner hereinafter men
tioned.
17. Goods sent from Marseilles to Paris, and carried by the Northern Railway from Paris to Boulogne for London, continued to leave Paris regularly t ill the 6th Sept, and to arrive in London regularly t ill the 7th Sept. 1870. On the 10th
M A R IT IM E LA W CASES.
23Ro d o c a n o c h i a n d o t h e r s v. El l io t t a n d o t h e r s. [C. P.
C. P.i
kept. 1870 carriage by the said railway from Paris to Boulogne became, and thence u n til after the giving of the notice of abandonment hereinafter mentioned, and u n til after the commencement of this action, continued to be impossible and ceased altogether in consequence of the German armies having taken possession of parts of the said rail- Way, and intercepted all communications by such railway between Paris and Boulogne. D uring the month preceding the said 10th Sept. 1870, the time occupied by the journey between Marseilles and London varied greatly. The time ordinarily occupied in that journey is eight days for goods sent by 'petite vitesse.
18. On the 29th Aug. 1870 the plaintiffs re
ceived in London a letter from their agent at shanghai, inform ing them of the shipment of the mlk. This letter came from Shanghai to Mar
seilles bv post in the same steamer w ith the silks.
19. On the same 29th Aug. 1870 the plaintiffs
?T0te to their agents, Messrs. Rodocanochi, of Marseilles, a letter containing the following terms :—
We have received advices from Shanghai of the sixty- Pve bales of silk R . S. C. 1/65 consigned to us by the r^ase steamer and overland, that is to say, by the mail
? j lfih has just arrived, and we find in the advices the '.' owing clause :— “ To be warehoused at Marseilles at me company’s expense during one month, and to await orders from the consignee.” Be good enough, therefore,
0 give orders to the agent that the silks may be for
warded to London.
On the same day the plaintiffs wrote to their said agents at Marseilles another letter contain- Ing the following terms :
The first 65 bales from Shanghai are coming by the renoh steamer, and the freight is paid to London. W e 0 not doubt that you have given orders to send them ere. They are insured, including war risk
These letters would in the [ordinary course of P - t roach Marseilles on the 31st Aug. 1870.
Ou the 31st Aug. 1870 Messrs. Rodocanochi, cl Marseilles, sent the director of the Maritime vice of the Messageries imperiales a letter, of hich the following is the translation:
Marseilles, 31st Ang. 1870.
. '0 Director of the Maritime Service of the Messa- t ries Imperiales,—In town. W e receive the orders of j 63®fs- Rodocanochi, Sons, and Co. to despatch to Lon- b n,t “e 65 bales of silk, “ R. 8. C.” arrived from China wa L 'Pren°b steamboat, Peiho, which you hold in at re“ OU0e to their orders. W e forward you their order t j Doe> begging you to have the goodness to execute it
"Pay, ¿f possible. W e have, &e.
(Signed) F. & K . Ro d o c a n o c h i.
On the same 31st Aug. 1870 Messrs Rodo- oanochi, of Marseilles, wrote to the plaintiffs in
°ndon a letter, from which the following is an e x tr a c t;
bal^.6 arQ ar0 !?lad to hear that yon have insured the 65 them .°* silk, including war risk, and we have ordered incln a ° e forwarded to London, as you w ill see by the riaigge® c°Py of onr letter to the Messageries
Impe-22. The silks were delivered to the Lyons ailway Company on the 2nd Sept. 1870, and a eceipt for them was given by that company. [A Py ° f this receipt, and of the endorsement there
at?!1 ^ as in the Appendix.]
on i t i’e silks were despatched from Marseilles
‘l i kept. 1870 by petite vitesee.
1 l a ' i *ilks arrived at Bercy on or before the th bept. 1870. Bercy is the Tail way station in
Paris, at which goods sent by the Lyons railway arrive.
25. A t the time of the arrival of the silks at Marseilles, and thence, u n til and after the ar
rival of the silks at Bercy, the German 'armies had invaded and occupied a large part of Prance, and were advancing upon and gradually surround
ing Paris, which state of things continued u n til the 19th Sept. 1870, on which day the German armies completely invested Paris. Prom the last-men
tioned day u ntil the giving of the said notice of aban
donment, and thence u n til the commencement of this action, they completely surrounded and be- seiged Paris, and held m ilitary possession of all tho roads leading out of Paris, and prevented communication between Paris and all other places, by reason whereof it was during all this time afore
said impossible to remove the silk from Paris.
26. On the 29th Sept. 1870, while the silks were detained in Paris as above-mentioned, Messrs.
Rodocanochi, of Marseilles, received from the Messageries Imperiales a letter informing them of the detention of the silk at Bercy. (A transla
tion was in the Appendix.)
27. On the 7th Oct. 1870 the plaintiffs gave notice of abandoning the silks to the defendant and the other underwriters. (A copy of the notice was in the Appendix.)
28. A fte r the commencement of this action the silks were forwarded to London, and they arrived in London in an undamaged state on the 20th March 1871.
29. A correspondence, commencing on the 17th March and ending on the 9th May 1871, took place between Messrs. Markby and Tarry, the p la in tiff’s attorneys and solicitors, and Waltons and Bubb, the defendant’s attorneys. (A copy of this correspondence was in the Appendix.) The notice referred to in the letter of the 17th March 1871, from Messrs./Markby and Tarry to Messrs.
Waltons and Bubb, was a notice of the arrival of the silks in London received by the plaintiffs from the Messageries Imperiales. The plaintiffs, taking upon themselves to act for the benefit of the underwriters, dealt with the silks in the man
ner hereinafter mentioned.
30. On the 2nd Sept. 1870 the plaintiffs had by a w ritten contract bearing date that day sold the silks to arrive, on the terms that the prompt should be four months from making, and that in the event of the silks not arriving the contract was to be n u ll and void. (A copy was in tho A p pendix.)
31. When the silks arrived in London the prices of silks were about the same as at the time when the contract of the 2nd Sept. 1870 was made.
32. The purchasers elected to take and did receive the silks after their arrival in London under the last mentioned contract and paid the plaintiffs the net price of 9362Z 12s. (id., in accord
ance with the terms of the contract.
33. The court m ight draw inferences of fact.
34. A claim was made on behalf of the plain
tiffs before the arbitrator, by whom this case was stated, to recover as for a partial loss of the silks, first in respect of an alleged loss of weight in the silks by a natural process of drying, during and in consequence of their detention in Paris, and
«econdly, in respect of loss of interest upon «he purchase money to bo received fo r the silks during tho period of such detention.
24
M A R IT IM E LA W OASES.
C. P. Ro d o c a n o c hi a n d o t her s v . El l io t t a n d o t h e r s. The questions for the court were: First,
whether the silks were covered by the policies at the time of the alleged loss ; secondly, whether the plaintiffs were entitled to recover for a total Iosb
of the silks; thirdly, whether the plaintiffs were entitled in point of law to recover as for a par
tial loss, in respect of the matters mentioned in par. 34, or either of them.
I f the court should be of opinion in favour of the plaintiffs on the first question, and that there had been a total loss, judgment was to be entered for the plaintiffs for an amount to be ascertained as the court shall direct, w ith the costs of suit.
I f the court should be of opinion in favour of the plaintiffs on the firs t question, and that the plaintiffs were entitled in point of law to recover as for a partial loss, in respect of the matters referred to in the th ird question, or either of them, the case should be referred back to the arbitra
tor, by whom this case was stated, to find what sum (if any) was recoverable in respect of such matter or matters, and in such case judgment should bo entered for the plaintiffs for the amount (if any) which should be found to be so recoverable w ith the costs of suit. And i f nothing should be found to be so recoverable, judgment should be entered or the defendant for his costs.
I f the court should be of opinion in favour of the defendant upon the first question, or upon the second and third questions, judgment should be entered for the defendant for his costs.
Field, Q.C. (with him Thesiger) for the plain
tiffs —First, the risk was covered by the policy.
The voyage actually made, viz. to London via, Marseilles, was within the policy, and the words in the description of the voyage, “ w hilst remaining there for transit,” apply to any of the voyages stipulated for which involve land transit, as the voyage in question undoubtedly did to the know
ledge of the underwriters (par. 12). Part of the journey was clearly terrene.
Secondly, the loss was caused by one of the perils insured against, viz. an arrest, restraint, or detainment of princes. There are no Eng
lish cases precisely in point, but the American case of Oliveira v. The Union Insurance Com
pany (3 Wheat. 183; 4 Curtis, 193) is nearly so, where it was held that a vessel w ithin a port blockaded after the commencement of her voyage, and prevented from proceeding on it, sustains a loss by a peril within this clause of the policy insuring against the arrest, restraint, and de
tention of kings, &c. for which the insurers are liable. [ Br e t t, J.—B ut a blockade is for the very purpose of preventing ships going out of the port]. Just as the investment of Paris, in the present case, was to prevent the exit of men and goods. [ Br e t t, J.—Does no English case decide that blockade is an arrest ?] None; but there is one in which i t was held that the fear of arrest preventing the master of a vessel from entering a port did not amount to a total loss.
Hadkinson v. Robinson, 3 Bos. & P. 388;
Lubbock v. Bowcroft, 5 Esp. 50;
Barker v. Blakes, 9 East. 283.
Those three cases are the only English authorities bearing on the question. In Oliveira v. The Union
Those three cases are the only English authorities bearing on the question. In Oliveira v. The Union