(WILLIAMS, J.: My impression is, that, if it was impracticable to restore the coals so as to enable them to be carried forward to their destination, *the freight is totally lost, although there has not been a total loss of ship or goods.) There can be no total loss, if any part of the freight has been received and, here, in substance, freight pro ratâ itineris was earned. (COCKBURN, Ch. J.: This point was not made at the trial.) It was not, unless it is involved in the question of total loss of freight. The point reserved was, that this was a time policy from the 24th of January to the 1st of March, subject to the right to renew, unless notice was given under the 14th rule; and that, no such notice having been given, the loss was not complete within the time mentioned. (COCKBURN, Ch. J.: Unless notice was given, the policy would be a continuing policy.) Taylor v. Wilson (1), at first sight, seems adverse to the defendant. It was there held, that freight may be insured for part of a voyage. The vessel sailed with a cargo from St. Ube's for Gottenburg, with intent to proceed from St. Ube's to Portsmouth, to take up convoy on her way to Gottenburg; the underwriters having no notice that the ultimate destination of the ship and cargo was Gottenburg. But there there was an express contract. The owner may have thought fit to insure for the more dangerous part of the voyage. (COCKBURN, Ch. J.: Why may not a man insure for a portion of the duration in point of time as well as of distance?) The effect is, that he is insuring for a voyage not designated, for a very inadequate premium. (COCKBURN, Ch. J.: Would not that remark be equally applicable to the facts in Taylor v. Wilson? CRESSWELL, J.: It seems to me rather to resolve itself into a question whether or not the party had an insurable interest. If he had, I do not see why he may not insure it for a month or for any other time. The case of Taylor v. Wilson only fortifies the opinion we all I believe entertained before.) * * The LORD CHIEF JUSTICE wishes me to express my opinion first, inasmuch as one ground of the motion was that he was supposed to have misdirected the jury. I entirely agree with him that the (1) 13 R. R. 488 (15 East, 324). expense of putting the coals in a state to enable them to be carried safely to their destination was a very fit subject of inquiry. It would be just as reasonable to call upon the ship-owner to incur great expense in the repair of the ship when she had sustained damage to such an extent, that, when repaired, she would be worth less than the sum laid out upon her, as to call upon him to incur an expense, in order to carry the cargo to its destination, which would greatly exceed its value (?) when it got there. I therefore think there is no ground for a new trial in this case upon the score of misdirection. With regard to the other question, as to the effect of the policy, it is to be observed that it is one of a somewhat novel character. The rules of club-policies have not usually been applied to policies on freight. It seems, however, that these time policies are greatly on the increase. With regard to the particular *question now before the Court, it seems to me to be free from any serious doubt. It cannot be denied, that, where a contract for freight is made, and the goods are prepared and actually on board, the ship-owner who has contracted to carry them has an inchoate right to the money agreed to be paid, and that gives him an insurable interest. That being so, I do not see why he may not insure such freight for a week or a month, or for distance, or for a voyage. For instance, where the voyage is from the port of London to the West Indies, why may he not insure as far as Portsmouth? There is nothing unreasonable in such a contract. In Murdock v. Potts, Lord KENYON seems to have proceeded upon the ground that there was no such freight as that from Bordeaux to Virginia, which was the subject of insurance in that case. Here, the owner having contracted for freight, that freight was at risk. The insurer says, "I will insure your interest in the freight from a given day to a given day." By one of the perils insured against, the freight is lost before the day mentioned for the termination of the risk. It seems to me to fall within the ordinary case of a loss by a peril insured against. I see no ground for disturbing the verdict. WILLIAMS, J.: I entirely agree with my brother CRESSWELL upon the last point: I will, therefore, confine myself, in the few remarks I have to make, to the imputation of misdirection, which is, in accordance with the objection urged on the part of the defendant at the trial, founded upon an exaggerated notion of the doctrine of Mordy v. Jones (1), that, to entitle him to freight, the ship-owner must have actually carried the goods to their destination. I think that doctrine is not fairly deducible from the decision in Mordy v. (1) 28 R. R. 305 (4 B. & C. 394). Jones. If it were, I for one should not be disposed to agree with it, inasmuch as it involves, *as it seems to me, a striking absurdity. It is easy to suggest cases where it would be ridiculous to expect. the owner to pursue the adventure, it might be that the expense of putting the goods into a fit condition to proceed, would many times exceed their presumed value when arrived at their destination. WILLES, J.: I am of the same opinion. As to the first question, it appears to me that the policy is a contract with the ship-owner to warrant him against loss by reason of damage arising from any of the perils insured against, within the period mentioned therein. These policies are made renewable from year to year, on account of the stamp duties. It appears to me that there was a sufficient probability that the insured would continue a member of the club down to the time that the freight which was the subject of insurance would have been earned, and that matters would remain as they were. It clearly must have been intended that the insurance. should cover the freight during the voyage, unless the contract were put an end to by the notice provided by the 14th rule. I therefore think, upon either of the grounds urged by my brother Byles, that this policy does extend to cover the freight in question although it might not have been actually earned until after the expiration of the term specifically mentioned therein. Upon the first point, therefore, I am of opinion that there is no reason for holding that the defendant is entitled to have his rule made absolute. As to the second point upon which the rule was moved, the argument for the defendant in truth amounts to what Mr. Addison contended for, viz. that no loss of the cargo can be considered a loss of freight within the terms of this policy. clearly could not have been the intention of the policy. If the goods the carriage of which is to entitle the ship-owner to freight are lost, *the freight is as much lost as if the ship herself were lost. The question simply comes to this, whether a person who can only earn 100l. freight by expending 1,000l. in restoring goods damaged by a peril of the sea to a condition to enable them to be carried forward to their destination, can be said not to have sustained a loss of the freight by a peril of the sea. The proposition needs only to be stated, to suggest the only answer that could be given to it. Upon the point reserved, therefore, I think the defendant has failed to show that the verdict was wrong; and I think there was no misdirection. COCKBURN, Ch. J.: That I am of the same opinion. As to the first point, I am disposed to think that this is a continuing policy, by reason of the provision contained in the 14th regulation, that it should be renewed for another year unless notice be given on either side to put an end to the contract. But, independently of that, I do not see why freight should not be insured by a time policy, even though the freight should not be actually earned within the time mentioned in the policy. The case of Taylor v. Wilson (1), where it was held that freight might be insured from St. Ube's to Portsmouth, upon a ship which sailed with a cargo from St. Ube's for Gottenburg, with intent first to proceed to Portsmouth, seems to me to be applicable here. I see no reason why, if the earlier part of the voyage is peculiarly perilous, the owner may not cover his freight, his expected profit, by an insurance applicable to that part only. And there is no hardship on the underwriter: he receives his premium on the whole amount of the freight, which cannot be earned till the completion of the voyage. As to the second point, I have heard nothing in the argument,-able as it has been, to satisfy me that the proposition *contended for, viz. that the question whether there is a total loss on freight where the goods are so damaged by a peril of the sea as to be incapable, except at a cost which no prudent owner would incur, of being carried to their destination, is not an essential ingredient in the consideration of this case, is tenable. It is now well settled, with regard to a policy on ship or on cargo, that, where either has sustained damage by a peril insured against, but is capable of being restored so that the ship may proceed and the cargo be carried to its destination, the question whether there has been a total loss or not depends upon whether that result may be obtained by the expenditure of a sum such as a prudent owner uninsured would reasonably be expected to incur. I see no reason why the same principle should not apply to an insurance on freight. The shipowner insures his freight with a view to protect himself against a loss of that freight by the loss of the goods by the carriage of which it is to be earned. If, in order to enable him to carry the goods to their destination, the ship-owner is bound to expend upon them an amount which would eat up the whole freight to be earned by the voyage, it is clear that he would be incurring that expense, not for his own benefit, but for that of the underwriters. The effect would be, that, to obtain immunity to the underwriter, the owner would be doubling his own risk. It seems to me, therefore, that the principle which is admitted to be applicable in the case of a policy on a ship or on goods, is equally applicable to a policy on freight. It was clearly proved here that the coals could not be re-shipped and carried to their destination in their then state: (1) 13 R. R. 488 (15 East, 324). but that they might have been restored, though at an expense far exceeding their value, by reason of the difficulty of obtaining a sufficient quantity of water to free them from the salt with which they had become impregnated. *My brother Shee insisted that the sole question for the jury to consider, was, whether or not it was physically practicable to put them in a state to be carried forward. But I thought the real question was, not whether it was physically practicable, but whether it was commercially practicable, and therefore I also put to them the question of expense. Rule discharged. SMITH V. THE MAYOR, ALDERMEN, AND BUR- (2 C. B. N. S. 651-670; S. C. 26 L. J. C. P. 257.) An agreement was entered into between the corporation of Harwich and S., a contractor for works, whereby the corporation agreed to let to S. the making, constructing, and completing certain works which they were impowered by an Act of Parliament to make, according to a specification and plans annexed, at or for the sum of 12,3057., and "on the conditions and in manner thereinafter mentioned:" and S. agreed to take the said works and complete the same in manner set forth in the specification, and for the sums and subject to the provisions thereinafter mentioned. The agreement then went on to provide that S. should construct certain of the works, described in the specification as the "first portion" thereof, for 7,318., to be paid as in the specification mentioned; and that he should also construct the "second portion," as described, for 4,9877., subject to the following provisions, that is to say,-" that the assent of the Commissioners of Woods and Forests shall be given to the said mayor, &c., to carry out the said last-mentioned works, so far as the same affect the land or soil &c. of the Crown, and that the said mayor, &c., are not prevented from carrying out the said last-mentioned works by the Eastern Union Railway Company, &c.,and, further, that the approbation of the Lords Commissioners of the Treasury is given to the said mayor, &c., to borrow on bond or on mortgage of the rates and property of the borough, &c., such sum or sums of money as may enable the said mayor, &c., to pay for the same." In an action by S. against the corporation upon this agreement, the declaration assigned for breach that the defendants had omitted within a reasonable time to procure and obtain the assent of the Commissioners of Woods and Forests, and the approbation of the Lords Commissioners of the Treasury, as in the agreement mentioned, or to permit the plaintiff to commence the second portion of the said works: Held, that there was nothing in the language of the agreement to warrant the Court in implying a covenant on the part of the corporation to obtain the assent and approbation therein mentioned. THE declaration stated, that, on the 15th of April, 1852, a certain memorandum of agreement under seal *was made and entered into by and between the defendants of the one part, and the plaintiff of the other part, and sealed with the corporate seal of the defendants, which was and is in the words and figures following,-"Memorandum of agreement made and entered into this 15th day of April, 1852, between the mayor, aldermen, and burgesses of the borough of Harwich, in the county of Essex, of the one part, and Edmund Smith, of Woolwich, in the county of Kent, contractor for works, of the other part,-Whereby the said mayor, aldermen, R.R.-VOL. CIX. 52 MICHAEL v. GILLESPY. [ *651 ] 1857. June 2. [651] [ *652 ] |