Svers and

Others v.

Bridge.

for. That all thofe who died of their bruifes, which they received in the mutiny, though accompanied with other caufes, were to be paid for. That all who had fwallowed falt water, and died in confequence thereof, or who leaped into the fea, and hung upon the fides of the fhip, without being otherwife bruifed, or who died of chagrin, were not to be paid for.

In the construction of policies of infurance for time, which are very frequent, the fame liberality, equity, and good fenfe, have always prevailed, as in all other infurances: and the courts have gone, as far as poffible, to decide according to the intention of the parties.

In an action on a policy of infurance on the ship Mary, a letter of marque, the words of the policy were, "at and from Liverpool to Antigua, Dougl. 509. with liberty to cruife fix weeks, and to return "to Ireland, or Falmouth, or Milford, with any

prize or prizes." This hip having been taken, this action was brought, and came on to be tried before Baron Hotham, at Lancefter, when a verdict was found for the plaintifs.

Upon a motion for a new trial, the material parts of the evidence were, that the policy was made on the 9th of February, 1775, and there was no time fixed in it for the commencement, or the duration of the voyage. The captain of the fhip, being called on the part of the plaintiffs, fwore that he in fact, failed from Liverpool on the 28th of February: he was five days before he cleared the land; and he proceeded on his direct voyage till the 14th of March, chaiing, however, at different times, from the 7th to the 14th, at which time he began his cruife, giving notice thereof to the crew, and ordering a minute of it to be entered in the leg-book, which was done. From the 14th of March, he continued cruifing about the fame latitude till the 17th or 18th of April; when he difcontinued the cruife, of which he alfo gave notice, intend

ing to go to the Burlings, off Lisbon, in the courfe of his voyage. On the 23d he renewed the cruife, of which he gave notice, as before, and ordered a minute, to that purpose, to be entered in the log-book. From that time he continued cruising till the 28th of April, when he was taken by an American privateer. Many witnetfes were examined, fome of whom thought, that the liberty of cruifing, given by the policy, meant fix fucceffive weeks; others conceived, that if the separate times of cruifing, when added together, should not exceed the space of fix weeks, the terms of the infurance would be complied with: but none of them could prove any ufage, as none of the witneffes ever knew a cafe exactly circumstanced like the prefent.

Lord Mansfield.-This was merely a queftion of construction, on the face of the policy, and unlefs an ufage could have been fhewn in favour of this defultory cruifing, calling witneffes to fupport it, was calling them to fwear to mere opinion. None of thofe produced knew of any inftance; and, therefore, their evidence ought not to have been received. Yet, I dare fay, their teftimony had great weight with the jury. The meaning of words depends upon the fubject. The inftructions were not read, but they fhew the meaning very clearly, for they run thus: "To cruife fix weeks, and then proceed to Án

tigua." There can be no general rule. Here the fubject matter, in my opinion, is decifive to fhew, that the fix weeks meant one continued period of time. A cruife is a well known expreffion for a connected portion of time There are frequently articles for a month's cruife, a fix weeks cruife, &c. Such a liberty, as in this cafe, to a letter of marque, is an excufe for a deviation. But what is contended for by the plaintiffs is impoffible in practice. Suppofe the fhip returns directly back, cruifing for the space of a week. She may then perhaps take three weeks Fa.

to

to return to where fhe had been. Can fhe then renew the cruife, return again, and fo repeatedly? The voyage, in that way, might last for years. But the true meaning is, "I will excufe "a deviation for fix weeks." The inftructions, although it happens they were not read, ftrike me much. Another argument: Six weeks is a continuation, a congregate denomination of time. If they had meant feparate days, they would have faid forty-two days. The rule for a new trial was made abfolute.

Having faid thus much of construction in general, by which it appears, that the material rules to be adhered to, are the intention of the parties entering into the contract, and the usage of trade; it will be proper to confider more particularly, what fhall be conftrued a lofs within the meaning of the policy. This mode of treating the fubject naturally leads us to confider loffes by perils of the fea; loffes by capture, and by detention of princes or people; and loffes by the barratry of the mafter or mariners; which are the great divifions of perils infured, and which will furnish materials for the three following chapters.

CHAPTER

THE

THIRD.

Of Loffes by Perils of the Sea.

be

THE HE fubject matter of this chapter may reduced to a very finall compass; as very few questions have ever been agitated in the English courts of law, upon this point. It may, in general, be faid, that every thing which happens to a fhip, in the courfe of her voyage, by the immediate act of God, without the intervention of human agency, is a peril of the fea. Thus,

2

Thus, in an infurance against perils of the fea, 1 Shower 323. every accident happening by the violence of Roccus, wind or waves, by thunder and lightning, by Not. 64. driving against rocks, by the ftranding of the ship, or by any other violence which human prudence could not forefee, nor human ftrength refit, may be confidered as a loss within the meaning of fuch a policy; and the insurer must anfwer for all damage fuftained, in confequence of

fuch accident. In cafes where the lofs is not Magens 52. total, but only partial, arifing from a leak, from 76. the ftranding of the ship, or from the lofs of her mafts, cables, or rigging, the insurers upon the cargo are liable to restore the value of all the damaged goods, and the underwriter upon the fhip is alfo anfwerable for all the injury which the has fuftained.

56.

In charter parties, if the veffel freighted was 2 Roll. Abr. robbed or taken by pirates, that was held to be 248. pl. 10. a lofs within the meaning of the words " perils perils Comberbatch "of the fea." It is alfo faid, that the fame rule of conftruction prevails as to policies of affurance. That poffibly might, and would be the true construction upon those words: but as it is now the universal custom to infure against the attacks of pirates, by exprefs words inferted in the policy, that question can now hardly arife.

Although the courts in this cafe, as in all others, will endeavour to give effect to this fpecies of contract, by a liberal and equitable conftruction; yet they will be cautious not to extend the principle fo far, as to fay, that the acts of the parties fhall be made to operate beyond their intention; and therefore they will attend to the words of the contrast, and fee, that the lofs, which is proved to have happened, is really one of thofe rifks against which the underwriter has infured.

An action was brought upon a policy of infu- Gregfon rance for the value of certain flaves, infured by Gibert, B. R. that policy. The declaration ftated, " that by Eater.

F 3

perils 23 Geo. 3.

perils of the fea, contrary winds, currents, and "other misfortunes, the voyage was fo much re

tarded, that a fufficient quantity of water did

not remain for the fupport of the flaves, and "other people on board, and that certain of the "flaves, mentioned in the declaration, perifhed "for want of water." The facts, appearing in evidence, were, that the fhip, being bound from Guinea to Jamaica, had miffed the island, and the crew were reduced to great diftrefs for want of water that the captain confulted with the crew, and it was unanimously agreed upon, that fome of the flaves fhould be thrown overboard, in order to preferve the reft: that at the time this refolution was formed, there remained but one day's full allowance of water, at two quarts per man. The jury, upon this evidence, found a verdict for the plaintiff, with damages at 30l a head for every flave thrown overboard.

A motion was afterwards made for a new trial, upon the ground, that this was not a lofs by perils of the fea.

Lord Mansfield.-This is a very uncommon cafe, and deferves a further confideration. There is great weight in the objection, that the lofs is ftated, by the declaration, to have arifen from perils of the fea, and that the currents, &c. had made the fhip foul and leaky. Now does it ap pear by evidence, that the fhip was foul and leaky? On the contrary, the lofs happened by mistaking Jamaica for another place. Befides, a fact has been mentioned by the counfel of throwing fome overboard after the rain fell, a fact, which is not agreed on by both fides, though a very material one.

Mr. Juftice Buller.-The declaration does not, in any part of it, ftate the lofs, which has been the occafion of this demand; and it would be very mischievous, if we were to overturn this objection. Suppofe, for a moment, that the underwriters, in all cafes, are liable for the mistake

of