1813. May 11. [313] [ *314] DAVIDSON AND ANOTHER v. WILLASEY. (1 M. & S. 313—317.) Where a ship was chartered from Liverpool to Jamaica, there to take on board a full cargo for Liverpool at the current rate of freight, to be paid at one month from the discharge of her cargo at Liverpool; and the shipowners effected a valued policy on the freight at and from Jamaica to her port of discharge in the United Kingdom; and the ship arrived at Jamaica, and after taking on board one half of her cargo, was lost by storm, the remainder of her cargo being on shore and ready to be shipped: Held, that the assured were entitled to recover as for a total loss. ACTION on a policy of assurance on freight, valued at 4,000l., upon the ship St. Andrew, "at and from any port or ports in Jamaica to her port of discharge in the United Kingdom." The loss declared on was by perils of the sea. There were also the usual money counts. At the trial before Lord Ellenborough, Ch. J. at the London sittings after last Trinity Term a verdict was found for the plaintiff for the whole amount of the defendant's subscription, subject to the opinion of the Court on the following case : The plaintiffs were owners of the ship, and in June, 1811, chartered her to Messrs. Horsfall and Hodgson for a voyage from the port of Liverpool (where she was then lying) to the island of Jamaica, there to take in a full cargo of West India produce for Liverpool or London, at the option of the charterers. The charterers covenanted that they would cause the vessel to be full laden at Jamaica with such goods as aforesaid, and would pay freight at the average and current rate of freight from Jamaica to Liverpool or London, at the end of one month from the discharge of the cargo. The amount of the full freight according to the rate stipulated in the charter-party would have exceeded the sum insured. The ship arrived at Jamaica, and took on board one half of her homeward cargo; and goods sufficient to have fully loaded her were on shore ready to be shipped, and would have been shipped within the limited time; but two days before it expired *the vessel was stranded and wholly lost by the perils of the seas; and no freight has been earned by the plaintiffs. If the loss on the policy is total, the plaintiffs have not been paid but if it is a partial loss, they have already received it from the defendant. The question for the opinion of the Court is, whether the plaintiffs are entitled to recover a total loss. If they are so entitled, the present verdict is to stand; otherwise a nonsuit to be entered. [The question having been argued :] LORD ELLENBOROUGH, Ch. J.: The interest intended to be insured was the freight which the assured would have earned under the terms of the charter-party, if the voyage had not been stopped by the perils insured against; † which has been held for upwards of 20 years past to be an insurable interest as freight. Then the question is, whether the assured were in the prosecution of that interest so as to have acquired an inchoate right to the freight at the time when the loss happened. We cannot allow any weight to the arguments used to prove that they were not, without setting aside the cases of Thompson v. Taylor, and Horncastle v. Suart, § which are precise upon this point: and there seems to be no reason for disturbing them. The distinction between this case and Forbes v. Aspinall has been truly stated, and is a clear one: there, there was no charter-party, and the valuation on the policy was made with reference to freight upon all the goods intended to be carried on the voyage insured, a part only of which goods was lost, and the rest never were or might have been obtained; so that the loss was not total within the meaning of the valuation : but here the valuation is made with reference to the freight under the charter-party, the whole of which the plaintiffs have been prevented from earning by one of the perils insured against. The loss therefore is total within the meaning of the policy. GROSE, J.: I have no doubt but that the + Cited and applied in judgment of HANNEN, J. in Burber v. Fleming (1869) L. R. 5 Q. B. 59, 75, 39 L. J. Q. B. 25.-R. C. cases already decided upon 3 R. R. 233 (6 T. R. 478). DAVIDSON this point are right; and therefore we ought to abide by The prior cases determined that in the case of a freight policy, where the assured has entered into a contract for freight, under which, except for the wrongful act of the party with whom he has contracted, he would be in a condition to earn his freight, if the voyage were not stopped by a peril insured against; there if the voyage has commenced in which the freight is to be earned, and be stopped by any of those perils, the assured will be entitled to recover to the full amount. In the case of Forbes v. Aspinall, it was attempted to carry the prior cases farther, and to make the underwriter liable for a total loss, where there was no contract under which the assured could have demanded freight, and where several contingencies might have intervened to deprive the party of his full freight if the loss had not happened. BAYLEY, J.: I am of the same opinion. The question is, to what extent the assured have been damnified by one of the perils insured against; for to that extent they are entitled to an indemnity. It appears to me that they must be considered. either as having lost the benefit of taking on board a full homeward cargo, which would have entitled them to their full freight under the charter-party; or of fixing the freighters, if they had refused to complete their loading, with damages to the amount of the full freight; and I consider that the same as freight. Judgment for the plaintiffs. † 12 R. R. 352 (13 East, 323). Action on a policy on ship at and from London to the East Indies, until her arrival at her port of discharge on the outward voyage. Loss by perils of the seas. Ship was chartered from London to the East Indies, there to deliver her outward cargo and return thence with a cargo for England into the Thames, and there make a true delivery, &c.; and it was agreed that the charterers should, upon condition that the ship performed her voyage and arrived at London, and not otherwise, pay freight for every ton of goods that should be brought home at so much per ton; the ship sailed on the voyage insured, and in the course of her outward voyage incurred an average loss, but was repaired and afterwards performed her voyage, and the freight was received: Held, that the freight was liable to contribute to general average, and that the underwriter was entitled to deduct in respect of such contribution. DEBT on a policy of assurance on the ship Dorsetshire, valued at 6,000l. on a voyage at and from London to Madeira, the Cape of Good Hope, and all or any the ports or places in the East Indies, China, Persia, or elsewhere on this or the other side of the Cape, until arrived at her last port of discharge on the outward voyage. The loss declared upon was by perils of the sea. The defendants pleaded the general issue, and paid 2,300l. into Court. At the trial before Lord Ellenborough, Ch. J. at the London sittings after last Trinity Term, a verdict was found for the plaintiff for 1417. subject to the opinion of the Court on the following case: By charter-party, of the 3rd of September, 1810, the plaintiff and R. Williams the younger, as part-owners, on behalf of themselves and the rest of the owners, chartered the ship to the East India Company, for a voyage from London to such ports in the East Indies, or within the limits of the Company's trade, as the Company should direct; and it was agreed, in consideration of the sum of 3,000l. by the Company to be imprest or paid to the said part-owners, &c. at the ship's arrival at Gravesend outwards, in part of the freight and demurrage to grow due in respect of the intended voyage, &c. that the ship *should take on board in her outward voyage a cargo not exceeding 913 tons, [318] [319] WILLIAMS and should deliver the same at the consigned port; and there THE LONDON also take in any other cargo, and deliver the same at any other ASSURANCE COMPANY. [ *320 ] port, and so from port to port as the Company or their agents should direct; and finally return from her last loading port with a cargo for England, into the river Thames, within the port of London, and there make a right and true delivery into the Company's warehouses, &c. The charter-party also stipulated for the allowance to the Company, either by payment or deduction out of the freight and demurrage payable to the owners, at the rate of 51. for every ton of the 913 tons which should be tendered by the Company and not taken on board; and that the Company should allow to them at the same rate for every ton exceeding 913. And as touching the freight to be paid or allowed by the Company, it was agreed that the Company should, upon condition that the ship performed her voyage and arrived at London in safety, and the part-owners and master performed the covenants on their part to be performed, and not otherwise, pay to the part-owners in London, at the times thereafter mentioned, and not before or otherwise, freight for every ton of goods that should be brought home in the said ship for account of the Company to the port of London, except the privilege goods of the master, officers, and ship's company, not exceeding 73 tons, as follows: "that is to say, [here followed a specification of the rates per ton according as the goods should be loaded at the different settlements of the Company], and so for any greater or less quantity than a ton, to be computed as aforesaid. And it was also covenanted that if any of the goods that should be laden on board the ship in her outward voyage should be lost or not delivered at the ship's consigned port or ports; in such case the part-owners should pay, or, at the election of the Company, allow to the Company. out of the freight and demurrage to grow due, the full prime cost of such goods so lost or not delivered, together with 301. for every 100l. on such prime cost; but that no such payment should be made if there happened to be an utter and inevitable loss of the said ship and cargo, nor should any other payment be made for such goods as should necessarily perish or be cast into the sea in the outward voyage for the preservation of the ship |