adventure thereon was to commence from ber arrival at Fort Saint George, and thence to continue till the faid ship should arrive at London, and that it fhould be lawful for the faid fhip, in the faid voyage, to stay at any ports or places without prejudice, and that the fhip was, and should be rated at intereft or no intereft, without farther account; in confideration whereof, I. H. paid fifteen pounds premium, The Eyles came to Fort St. George in February, 1733, in her way to England; but being leaky, and in a very bad condition, upon the unanimous advice of the governor, council, commanders of fhips, &c. fhe failed to Bengal to be refitted, and after being fheathed, in her return upon her homeward-bound voyage, she struck upon the Engilee fands and was loft. Evidence was read on the part of the plaintiffs to prove, that Bengal was the most proper place to refit, and that he went thither for that reafon ; that this was a voyage of neceffity, and not a trading voyage, for fhe took nothing on board, but water, provifion, and ballaft. Lord Chancellor Hardwicke.-As to the queftion, whether there has been a breach, or, in other terms, a lofs, within the meaning of this policy, the general principles laid down by the plaintiff's counsel are right, that stress of weather, and the danger of proceeding on a voyage, when a fhip is in a decayed condition, are to be confidered. In fuch a cafe, if fhe went to the neareft place, I fhould confider it equally the fame as if he had been repaired at the very place from which the voyage was to commence, according to the terms of the policy, and no de viation. It is a very material circumstance, that the governor ordered the lading to be taken out, to fhew the neceffity of the fhip's being repaired, but there is not a fyllable of proof why the might not have been equally well repaired at Fort Saint George, There is one part of this cafe, I Atk. 548. Chitty v. 2 Atk. 359. Camden v. Cowley. ■ Black. 417 which diftinguishes it from all others whatever, and that is, as to the certain time the voyage was to commence. The fact is, the fhip was loft in July, 1733, three weeks before the time of making this policy, fo that clearly the fhip was not at Fort Saint George at the time the agreement was made; and therefore it is a material queftion, whether it comes within the agreement. His Lordship directed an iffue to try, whether the lofs in July, 1733, was a lofs during the voyage, and according to the adventure agreed upon; which iffue was afterwards found for the plaintiffs upon a trial in the Common Pleas. In an action upon a policy of infurance, beforeLord Chief Juftice Hardwicke, it has been held, that the words "at and from Bengal to England," meant the first arrival at Bengal, and it was agreed, that when fuch words are ufed in policies, first arrival is always implied and understood. It has likewife been held, that when a fhip is infured at and from a place, and it arrives at that place, as long as the fhip is preparing for the voyage upon which it is infured, the infurer is liable but if all thoughts of the voyage be laid afide, and the fhip lie there five, fix, or feven years, with the owner's privity, it fhall never be faid the infurer is liable; for it would be to fubject him to the whim and caprice of the owner. This was an action on a policy of insurance on afhip, at and from Jamaicato London. The fhip had also been infured from London to Jamaica generally, and was loft in coafting the inland, after the had touched for fome days at one port there, but before fhe had delivered all her outward-bound cargo at the other ports of the inland. This was an action on the homeward policy; and in order to fhew when the homeward-bound rifk commenced, it was neceffary to fhew at what time the outward-bound risk determined; and the jury, which was fpecial, after an examination of merchants as to the cuftom, by their verdict, decided, that the outward risk ended, when the ship had moored in any port of the island, and did not continue till he came to the laft port of delivery. In the Trinity term following, a motion was 1 Black. 418. made for a new trial, but it was refused; because it had been thoroughly tried, and no new light could be thrown upon it, although Lord Mansfield faid, the inclination of his opinion at the trial was the contrary way. Mr. Juftice Wilmot thought, the construction put upon the policy by the jury was the right one. In a fimilar cafe, Lord Mansfield laid down Barrass v. the fame doctrine to the jury, namely, that the The Lond. outward risk upon the fhip ended twenty-four hours Affurance. after its arrival in the firft port of the ifland, Sittings after to which it was destined: but that the outward policy upon goods continued till they were landed. But the great and leading cafes, upon queftions of conftruction, are two, Tiernay v. Etherington, and Pelly v. the Royal Exchange Affurance Company; the former determined by Lord Chief Justice Lee, and the latter by Lord Mansfield. In thefe cafes, the principles, which are to be obferved in the conftruction of policies, are fo fully confidered, and the application of them to the particular circumstances of the different cafes is made with so much accuracy and perfpicuity, that they are to be regarded as the pole ftar to direct our enquiries upon all fimilar occafions. Hilary 1782, at Guildhall, Chief Justice, The first of these causes, was an action upon a Tiernay v. policy of infurance "on goods, in a Dutch fhip, Etherington, "from Malaga to Gibraltar, and at and from before Lee, "thence to England and Holland, both, or either: 5 Mar. 1743. "on goods, as hereunder agreed, beginning i Burr. 348. "the adventure from the loading, and to con"tinue till the fhip and goods be arrived at "England or Holland, and there fafely landed." The agreement was, "that upon the arrival of "the hip at Gibraltar, the goods might be un" loaded, and re shipped in one or more British fhip or fhips for England and Holland, and to "return one per cent. if discharged in England." It appeared in evidence, that when the ship came to Gibraltar, the goods were unloaded, and put into a store fhip, (which it was proved was always confidered as a warehouse) and that there was then no British fhip there. Two days after the goods were put into this store ship, they were loft in a storm. The queftion was, whether this was a lofs, within the conftruction of the policy. Lee, Chief Juftice.--It is certain, that in the construction of policies, the ftri&tum jus, or apex juris, is not to be laid hold of: but they are to be conftrued largely, for the benefit of trade, and for the infured. Now it feems to be a ftrict construction, to confine this infurance only to the unloading and refhipping, and the accidents attending that act. The conftruction fhould be according to the course of trade in this place; and this appears to be the ufual mode of unloading and refhipping in that place, viz. that when there is no Britifh fhip there, then the goods are kept in store ships. Where there is an infurance on goods on board fuch a fhip, that infurance extends to the carrying the goods to fhore in a boat. So, if an infurance be of goods to fuch a city, and the goods are brought in fafety to fuch a port, though diftant from the city, that is a compliance with the policy; if that be the ufual place, to which the fhips come. Therefore, as here is a liberty given of unloading and refhipping, it must be taken to be an infuring under fuch methods as are proper for unloading and refhipping. There is no neglect on the part of the infured, for the goods were brought into port the nineteenth, and were loft the twentyfecond of November. This manner of unloading and refhipping is to be confidered as the neceffary means of attaining that, which was intended by the policy; and feems to be the fame, as if it had happened in the act of unfhipping from one fhip into another. And as this is the known courfe courfe of the trade, it feems extraordinary, if it was not intended. This is not to be confidered as a fufpenfion of the policy; for as the policy would extend to a lofs, happening in the unloading and sefhipping from one fhip to another, fo any means to attain that end come within the meaning of the policy. The plaintiff had a verdia. Afterwards a new trial was moved for; but it Eafter Term, was refused by Lee, Chief Juftice, Mr. Juftice Chap- 1743. ple, and Mr. Juftice Denison, against the opinion of Mr. Juftice Wright. Governor and Comp. The next of these causes came before the court Pelly v. The upon a case reserved for their opinion, after a trial and verdict for the plaintiff, at Guildhall, before Lord Mansfield. It was an action of covenant upon a policy of infurance. The cafe ftates, that the plaintiff, being part owner of the fhip Onflow, an East India fhip, then lying in the Thames, and bound on a voyage to China, and back again to London, infured it" at "and from London, to any ports or places be"yond the Cape of Good Hope, and back to Lon"don, free from average under ten per cent. upon "the body, tackle, apparel, ordnance, muni"tion, artillery, boat, and other furniture of, "and in the said ship: beginning the adventure upon the faid fhip from and immediately fol"lowing the date of the policy, and fo to con"tinue and endure until the fhip shall be arrived " as above, and there anchored twenty-four "hours in good fafety." The perils mentioned in the policy were the common perils, viz. " of "the feas, men of war, fire, &c." The ship arrived in the river Canton, in China, where the was to stay to clean and refit, and for other purpofes. Upon her arrival there, the fails, yards, tackle, cables, rigging, apparel, and other furniture, were, by the captain's order, taken out of her, and put into a warehouse, or storehouse, called a bank-faul, built for that purpofe on a fand of the Royal Exch. Aflur. 1 Burr. 341. |