performed, and the usual course and manner of doing it. Every thing done in the usual course must have been foreseen, and in contemplation, at the time he engaged: he took the risk, upon a supposition, that what was usual or necessary should be done. In ge neral, what is usually done by such a ship, with such a cargo, in such a voyage, is understood to be referred to by every policy, and to make a part of it, as much as if it were expressed, The usage, when foreseen, is rather allowed to be done, than what is left to the master's discretion, upon unforeseen events: yet, if the master, er justá cansé, go out of the way, the assurance continues. Upon these principles, it is difficult to frame a question, which can arise out of this case, as stated. The only objection is, that they were burnt in a bank-saul, and not in the ship; upon land, not at sea, or upon water; and, being appurtenant to the ship, losses and dangers ashore could not be included. The answer is obvious; first, the words make no such distinction; secondly, the intent makes no such distinction. Many accidents might happen at land, even to the ship. Suppose a hurricane to drive it a mile on shore; or, an earthquake might have a like effect; suppose a ship to be burnt in a dry dock; or, suppose accidents to happen to her tackle upon land, taken from the ship, while accidentally and occasionally refitting, as on account of a hole in its bottom; or other mischance; these are all possible cases. But what might arise from an accidental repair of the ship is not near so strong, as a certain necessary consequence of the ordinary voyage, which the parties could not but have in their direct and immediate contemplation. Here the defendants knew that the ship must be heeled, cleaned, and refitted, in the river of Canton; they knew that the tackle would then be put in the bank-saul; they knew it was for the safety of the ship, and prudent, that they should be put there. Had it been an accidental necessity of refitting, the master might have justified taking them out of the ship er causa justá; but describing the voyage is an express reference to the usual manner of making it, as much as if every circumstance were mentioned. Was the chance varied by the fault of the master? It is impossible to impute any fault to him. Is this like a deviation? No, it is er justá causa, which always excuses. Had the assurers been asked whether the tackle should be put in the bank-saul, they must, for their own sakes, have insisted that it should. They would have reason to complain, if, from their not being put there, a misfortune had happened. In such a case the master would have been to blame; and, by his fault, would have varied the chance. They have taken a price for standing in the plaintiff's place, as to any losses he might sustain in performing the several parts of the voyage, of which this was known and intended to be one. Therefore, we are all of opinion, that, in every light, and in every view, of this case, in reason and justice, and within the words, intent, and meaning, of this policy, and within the view and contemplation of the parties to the contract, the assurers are liable to answer to this loss."-Pelly v. Royal Exch. Assur. 1 Burr. 341. This doctrine has been since confirmed by the court of king's bench, in the case of Brough v. Whitmore, 4 T. R. 206.

The same principles were adhered to in more modern cases, as (ex. gr.) Noble and Co. v. Kennoway, (Doug. R. 492,) and many others. The principle of these cases is illustrated particularly by several determinations respecting "sailing with convoy" in time of war. last convoy act was 43 Geo. III. c. 57; the provisions of which, of

The

course, ended with the war, but three of them gave occasion to numerous modern adjudications, which very fully develope the principles here contended for. Those provisions were, 1. That no vesse! should depart from port but under such convoy as should be appointed. 2. That every such vessel should continue with convoy during the authorized period. 3. That all assurances are avoided on the voluntary breach of those provisions. The exceptions are, indeed, numerous, but not necessary to be noticed for the immediate purpose here. The question of compliance, or non-compliance, with the terms of the act, under infinite varieties of circumstances, gave occasion to numerous litigations, but they all tended to confirm what we have advanced. (See Abbott, 243.-3 Taunt. 131.-15 E. R. 507.-Holt. N. P. 185. -4 Taunt. 493. 4 Campb. 231.)

In conformity with this doctrine, are the cases of assurances upon East India voyages, in which the assurers have been held liable, not only for events which may possibly happen from the port of discharge to that of delivery, but also for all intermediate or country voyages, and upon which the ship may be despatched by order of the council of any of the East India Company's settlements abroad. And this construction of East India policies prevails, whether the words of them be large and comprehensive, such as with liberty to touch, stay, and trade, at any port or places whatsoever, or restrained and limited, such as to touch and stay at any port or place in this voyage.—Salvador v. Hopkins, 3 Burr. 1707.-Gregory v. Christie, Trin. Term, 24 Geo. III.-Farquharson v. Hunter, Hilary, 25 Geo. III.—At the same time, though the general rule be so, yet the parties contracting may, by their own agreement, prevent such a latitude of construction. In order to do this, it is not necessary that the express words of exclusion should be inserted in the policy; but if, from the terms used, the court can collect that such was the intention of the parties, that construction, which is most agreeable to their intention, will prevail. -Lavabre v. Wilson, 2 Doug. 27.

When an assurance is made on one species of property, the damage sustained by loss of property, different from that named in the policy cannot be recovered. Thus a man, who has assured a cargo of goods, cannot recover the freight which he has paid for the carriage of that cargo; nor can an owner, who assures the ship merely, demand satisfaction for the loss of merchandise laden thereon, or ask from the assurers extraordinary wages paid to the seamen, or the value of provisions consumed, by reason of the detention of the ship at any port longer than was expected.-Fletcher and others v. Poole. Sittings after Easter, 1769.-Bailie v. Modigliani, Hilary Term, 25 Geo. III.

On a policy on a ship, sailors' wages or provisions are never allowed in settling the damages; for if a ship is detained, in consequence of any injury received in a storm, though the underwriters must make good that damage, yet the assured cannot come upon him for the amount of wages or provisions during the time she was repairing.— Robertson v. Ewer, 3 T. R. 127.

But, on a policy on a ship and furniture, where the provisions for the crew were burnt, it was determined that provisions for the crew are comprehended under furniture, and that the underwriter was of course answerable for their loss.—Brough v. Whitmore, 4 Term Rep.

206.

In an assurance upon a Greenland ship, the value of lines and tackle, employed in the fishery, is not recoverable under a policy made up

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in or u emile the assured to server, the loss must be a direct HEL JEWELL consequence of the peri assured, and not a remote one. This 11 at acum on the poles ir assurance, “at and from Bristol V the cost of Amca, oung her stay and trade, and thence to our But, ir pats o aschure in the West Indies." There was a memoTAM IR A UNE The restrets are not to pay any loss that Is La I kus dure the vocare ma ty by natural death GAL DE HTW e morais bemus, unless the same AM GHC U21 per meal at de commned on the first cost of the ship, QUI, QUE ANTI, taking heres so just at £35 per head" The man win the Dit was the loss of a great many slaves by mutiny, The unevene i put of the mae of £15 per cent. for nineteen, will were either slet during the micry, or had afterwards died # Der Faunis SKIRT Brieka demage was stated, that the Ming but Chenet The "enaming mars in the estimation of the Led Mansfield said, as to the mer. N underver is but answeridie for the loss of the market, or the price of E. tuc is a reine crusequence, and not within my peri assurat arbust is the policy The yurt determined, that al! who wer Lust n de mat, died of her words, or of their iruses, vind het receret ʼn the metry, bouch accompanied with Other causes, were at be at le ba bose who died from other cuires M. L. WEN DE 38 be zwi fe-Jua v. Sånd, I T. R. 7. 8. Sace the arts re parlament ke abolishing the slave-trade, sit uses, is those which scared in this partiellar case, are not assurile, Jur the prange of me determinate is still the same in A int has rarernet rcber cases.

In the crastruction ré policies for fame the same liberality preTuis, Thus, 2 a 2008ry of 29SITEnce of the ship Mary, letter of manque,

si and from Liverpool to Antifra, with Werty ta PER LI PERL, and return to Iraizod ce Fulmeia or Mildri, with The ship baring been taken, an action was berarts, wher a verdict was fiend for the plaintif The material parts of the endeare were, that the polley was made on the 9th of February, 179, and there was no time fixed in it for the commencemens or the duration of the verare. The captain of the ship swore, that be sacied from Liverpool on the 25th of February; he was five days before, be cleared the land; and he proceeded on his direct voyage til the 14th of March, chasing, however, at different times, from the 7th a the 14th; at wish time he began his cruise, giving notice therecé to the crew, ordering a minute of it to be entered in the logbook, which was done. From the 14th of March, he continued cruising about the same latitude till the 17th or 18th of April, when he escontinued the cruise, of which he also gave notice, intending to go to the Berlings off Lisbon, in the course of his voyage. On the 234, be renewed the cruise, 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 witnesses were examined. some of whom thought, that the liberty of cruising, given by the

N. B. By 35 Gen. III. c. 63, § 12, no policy upon any ship or interest therein can be made for a longer term than twelvendar months.

policy, meant six successive weeks; others conceived, that, if the separate times of cruising, when added together, should not exceed the space of six weeks, the terms of the assurance would be complied with; but none of them could prove any usage, as none of the witnesses ever knew a case exactly circumstanced like the present.

A motion was made for a new trial; upon which Lord Mansfield said," Here the subject-matter, in my opinion, is sufficient to show, that the six weeks meant one continued period for a time. A cruise is a well-known expression for a connected portion of time. There are frequently articles for a month's cruise, a six weeks' cruise, &c. Such a liberty as in this case, to a letter of marque, is an excuse for a deviation; for the true meaning is," I will excuse a deviation for six weeks. If they had meant separate days, they would have said forty-two days. The Court ordered a new trial.-Syers and others v. Bridge, Dougl. 509.

The general principle of insurance that the assured shall, in case of a loss, recover no more than an indemnity, may be controuled by a mercantile usage, clearly established, to the contrary, and usage that the loss in an open policy on freight shall be adjusted on the gross. and not on the net amount of the freight, is a legal usage. Palmer v. Blackburn, 1 Bingham, 61.

It would seem that the Mauritius, in mercantile acceptation, is esteemed an Indian island. 1 Bingham, 451.

Thus, it appears that the material rules to be adhered to, in the construction of policies, are the intention of the parties entering into the contract, and the usage of trade.

3. PERILS OF THE SEA.

It may, in general, be said, that every thing happening to a ship, in the course of her voyage, by the intermediate act of God, without the intervention of human agency, is a peril of sea. Thus every accident happening by the violence of wind and waves, by thunder or lightning, by driving against rocks, by the stranding of the ship, or by any other violence which human prudence could not foresee, nor human strength resist, may be considered as a loss within the meaning of such a policy; and the assurer must answer for all damages sustained in consequence of such accident. But, if a ship be driven by stress of weather on an enemy's coast and is there captured, it is a loss by capture, and not by perils of the seas.-Green v. Elmsley, Peak, 212.

In order to charge the underwriter for a loss by perils of the sea, the ship must be equipped with every thing necessary for the voyage; she must be sea-worthy, have a sufficient crew, and a captain and pilot of competent skill. And, therefore, when a ship, homeward-bound from Stettin to London, received on board a pilot from Orfordness, but dropped him at Half-way Reach in the river Thames, before she had reached her moorings higher up in the river, and an accident afterwards happening by which the ship was lost, the underwriter on the ship and cargo was holden discharged from his liability, on account of there not being any pilot on board at that time, although it did not appear that the loss was directly imputable to the want of skill in those that navigated her.-Law v. Hollingsworth, 7 T. R. 160.

An action was brought on a policy of assurance upon a ship and goods from Newfoundland to Waterford and Cork, &c. including all risk in craft to and from the vessel. Captain took a pilot at the

entrance of Cork harbour. In the progress up Cork harbour, the vessel struck ground from shallowness of water, the next day she again took ground, and on the day after, for the third time, the pilot still remaining in command, she took very considerable damage, as well as loss of sale of her cargo (fish) by these several accidents. It appeared in evidence that taking ground in this manner was no more than is usual with vessels of the same class in Cork harbour. It was held, both by the judge at Nisi Prius, and afterwards by the court of C. P. that this was not a stranding for which the insurers were liable.-Hearn v. Edwards, 1 Brod. &. Bing. Rep. 388.

In the case of Rohl v. Parr, the ship had been destroyed by a species of worms which infest the rivers of Africa; and an intelligent merchant swore that he had known many instances of this species of loss, but that the underwriters had invariably refused to pay. Lord Kenyon and the jury, upon this evidence, decided that it was not a loss by perils of the sea.-Sittings of Hilary, 1796, 1 Esp. 445.

When a ship was driven ashore, part of the goods lost at sea, and part got on shore, but while on shore destroyed and plundered by the inhabitants, so that no part came again into possession of the master and crew, Gibbs, C. J. held this to be a loss by perils of the sea.— Bondrett v. Hentigg, Holt's N. P. 149.

And in a recent case of insurance on goods in a ship, warranted free from capture and seizure, the ship was stranded on a shoal within a few miles of the port of destination, disabled from proceeding, and lost; but while she lay in the sand she was seized by the commander of the place at which she was stranded, and the goods were confiscated by him. It was held a loss of the goods by the perils of the seas, which were considered to be the proximate cause. Hahn v. Corbett, 2 Bingham, 205.

But when a ship under repair on a beach, within tide way, bilged and damaged, this is not a loss by perils of the sea. 3 Taunt. 227. See ante, case of Fletcher v. Inglis, under first division of this chapter, Risks against which underwriter assures.

If a ship has been missing, and no intelligence received of her within reasonable time after she sailed, it shall be presumed that she foundered at sea.—Newby v. Read, Sittings after Mich. 3 Geo. III.

and

And even in an action on a policy, in which there was a warranty against captures and seizures, (the ship never having been heard of after sailing,) it was insisted, for the defendant, that, as captures seizures were excepted, it lay upon the plaintiff to prove, that the loss happened in the particular manner stated. Lord Chief Justice Lee said, it would be unreasonable to expect certain evidence of such a loss, where every body on board is presumed to be drowned; and all that can be required is, the best proof the nature of the case admits of, which the plaintiff has given. The jury found a verdict for the plaintiff.-Green v. Brown, 2 Stra. 1190.

Where horses are insured, warranted free from mortality and jettison, and in the course of the voyage, in consequence of the agitation of the ship in a storm, are destroyed by kicking and bruising each other, this is a loss by a peril of the sea, and the assured shall recover. Gabay v. Lloyd, 3 Barn. & Cress. 793.

A practice prevails among assurers, that the ship shall be deemed lost, if not heard of in six months after her departure (or after the time of the last intelligence from her) for any port in Europe, and in twelve