till the first of March, 1852, only, but up to that day and so on from year to year until put an end to by the notice contemplated by the 14th rule. The loss occurred before the 1st of March, when it became impossible, by reason of the sea-damage, to carry on the coals: and it is not the less a total loss of the freight at that time, though the freight could not have been earned within the time. [CRESSWELL, J.-When you insure freight you are insuring something which does not exist, and cannot at the time exist. Could you insure the expected profits to arise from the sale of a cargo of rice, as far as the Cape, on a voyage to England?] That is a very different matter. The underwriter who insures freight insures that the owner shall be in a condition to earn freight. [CRESSWELL, J.-When is the loss to be paid, and what is the extent of the underwriter's liability?] The assured would be entitled to be paid immediately, and the amount would be the present value of the freight which he was thereafter to receive. The policy, it is submitted, covers the whole time and there is nothing inconsistent or incongruous in saying that freight may be lost before it is earned. In Phillips on Insurance, 3d *639] edit. Vol. I., *p. 684, a case of Coit v. Smith, 3 Johns. (American) Rep. 16, is referred to. That was an action on a policy upon horses from Liverpool to New York, "against all risks, including the risk of death from any cause whatever, until safely landed." One of the horses died three or four days after being landed, of injuries received in a gale on the voyage. Kent, then justice, states the question in such case to be, what was the condition of the article when landed? "One of the horses," he says, "received a death-wound during the voyage. The damages so received are a proper subject of retribution. How much damage ought to have been assessed at the time he was landed?" And the judgment upon this ground, which, the learned author observes, seems plainly to be the true one, was for the full value of the animal. [WILLIAMS, J., referred to Meretony v. Dunlope, 1 T. R. 260.] Mr. Phillips (ubi suprà), speaking of that case, says that Willes, J., there "stated a preceding decision by the English K. B., where a ship insured for a certain time received her death-wound' from a peril insured against, three days before the end of the time, but, by pumping, was kept afloat till three days after it had ended, in which the verdict, being against the claim for the loss, was confirmed by the court. Mr. Justice Willes compares such a case to one of a policy on a life, where the party insured for a year receives a mortal wound during that time, of which he dies after the end of the year. But the cases are not parallel; to render them so, the insurance on the life should be, not against death merely, as a life-policy is, but against wounds, as a ship is against the perils of the sea. The comparison is accordingly illusive." In 2 Phillips on Insurance, 345, it is laid down, upon the authority of a case of Whitney v. The New York Firemen Insurance Company, 18 Johns. (American), 208, that

"the absolute loss of the cargo, as of the ship, is a total loss of *freight, although the ship may be in a condition to continue [*640 the voyage." And he adds: "Though the cargo is not wholly destroyed, yet if it is so damaged by the perils insured against that it cannot be carried on without endangering the health or lives of the crew, or so as to arrive at the port of destination as continuing to be the same description of goods as at the beginning of the risk, this constitutes a total loss of freight:" for which he cites Hugg v. The Augusta Insurance Company, 7 Howard's R. Sup. Ct. U. S. 595. "If," he continues, "the goods are sold by the master at an intermediate port, with the consent of the shipper, or under circumstances rendering the sale binding upon him, as being made in pursuance of the authority with which the master is invested by the emergency, a right to freight pro ratâ accrues, which is salvage under the policy on freight." To this the learned author adds the following note,-— "According to Vlierboom v. Chapman, 13 M. & W. 230,† the entire freight is forfeited in such case, unless the shipper consents to the sale; meaning direct, and not merely constructive and implied consent. But the better doctrine seems to be as stated in the text." The real question is, has the shipowner sustained a loss of freight by a peril insured against? By a peril of the sea, the cargo is damaged to such an extent that it is impossible,-not physically impossible, but impossible for any commercial purpose,-to carry it to its destination. Jervis, C. J., thus lays down the rule as to goods, in Rosetto v. Gurney, 11 C. B. 176, 186 (E. C. L. R. vol. 73),-" As a general rule, where the whole or any part of a cargo is practically capable of being sent in a marketable state to its port of destination, the master cannot sell, nor can the assured recover as for a total loss. Whether a cargo can practically be forwarded to its port of destination, involves a consideration of all the circumstances of each particular case: and this word *practically,' as explained by my Brother Maule in Moss v. [*641 Smith, 9 C. B. 94 (E. C. L. R. vol. 67), comprehends the condition upon which the difference between a total and partial loss depends. In matters of business,' says that learned judge, a thing is commonly treated as impossible when it is impracticable, and as impracticable when it cannot be done without laying out more money than the thing is worth.' Thus, if goods are reduced to such a state, by sea-damage, as to be worth nothing if sent on, the master may sell them, and the owner may recover as for a constructive total loss: Parry v. Aberdein, 9 B. & C. 411 (E. C. L. R. vol. 17), 4 M. & R. 343. So, if, from sea-damage, the goods cease to retain their original character, for instance, from the progress of putrefaction, the master is justified in selling, and the assured may recover a total loss: Roux v. Salvador, 3 N. C. 266 (E. C. L. R. vol. 32), 4 Scott, 1." There is no reason why the same principle should not apply to freight. Could the coals

here have been sent forward in their damaged state to their destination? If not, there is a total loss of freight. Upon these authorities, there-fore, to which may be added Green v. The Royal Exchange Assurance Company, 6 Taunt. 68, 1 Marsh. 447, and Knight v. Faith, 15 Q. B. 649 (E. C. L. R. vol. 69),—it is submitted that the direction of the Lord Chief Justice to the jury was quite correct, and that there is no pretence for disturbing the verdict.

Shee, Serjt., Hugh Hill, Q. C., and J. Addison, in support of the rule. The facts are short and simple. The ship, though damaged, was reasonably repairable and was finally repaired, and proceeded upon another voyage. The charterer and owner of the cargo, who had paid 8007. of the 12007. freight stipulated for by the charter-party, finding that he could not profitably pursue the adventure, abandoned it, and sold the coals, receiving back the 800l. which he had paid. The *owner of the ship purchased the coal, and afterwards resold it *642] at a price nearly equal to its original cost. It appeared that the coal was only damaged to the extent of justifying an apprehension of its ignition in the course of a long voyage. It is submitted that the Lord Chief Justice misdirected the jury in telling them that there was a total loss of freight, if the goods were so damaged by perils of the sea that they could not be made fit for reshipment except at an expense which no prudent owner would incur,-meaning, of course, owner of the coals. [WILLIAMS, J.—I am not sure of that: he may have meant owner of the ship.] It was submitted on the part of the defendant, that the question of expense did not properly form an ingredient in the consideration of whether or not there had been a total loss of freight. And this argument was founded upon the case of Morby v. Jones, 4 B. & C. 394 (E. C. L. R. 10), 6 D. & R. 479 (E. C. L. R. 16), which is nearly identical with the present case. That was an action on a policy on freight. It appeared that the ship in the course of her voyage, having been injured by a peril of the sea, was obliged to put into a port and land the whole of her cargo. Part of the cargo had been so wetted by sea-water that it could not be reshipped without danger of ignition, unless it went through a process which would have detained the vessel six weeks, and have been attended with an expense equal to the freight. Under these circumstances, the master sold these goods, and, finding he could not obtain others, he sailed on his voyage, and arrived at his port of destination with the rest of his cargo. The master's proceedings were such as a prudent man uninsured would have adopted. The underwriters were held not to be liable for the loss of the freight. In giving judgment, Abbott, C. J., after stating the facts, says: "The question was, whether, under these circumstances, the underwriter was answerable pro *tanto *643] for the freight of the goods thus relanded and left behind: and there appears to be no case or decision exactly in point, and yet such

an occurrence must probably have happened many times, and upon the whole we are of opinion that the underwriter was not liable for the freight of these goods. It may be very true that the most prudent thing for the master of the ship might be, to leave the goods behind, and sail without them; but it does not therefore follow that the underwriter is to make good the freight thereby lost. If it should be held, in a case of this kind, that the underwriter would be liable to make it good, it would open a temptation to the master of a ship to sail away under circumstances like these, instead of stopping until the goods could be reshipped; which would be very mischievous. We think inconvenience would result by laying down a rule which should make the underwriter answerable in a case of this kind. It is very proper that the master should exercise a discretion whether it be more fit to leave the goods behind, and give up the value of the freight, than to bring them home. But it by no means follows as a consequence, that, if he does in the sound exercise of his discretion leave part of the goods behind, and his owner thereby loses freight pro tanto, that he can throw that loss on the underwriter." Murdock v. Potts, Park, Ins. 8th edit. 634, Marsh. Ins. 2d edit. 326, is very like this case. It was an action upon a policy of assurance on freight of the ship Bethiah, at and from Bordeaux to Virginia, warranted American ship and property the declaration alleged that the ship was an American ship and the property of American subjects. The plaintiff proved the ship to be American, and it was to have been contended upon the part of the defendant, that the warranty extended to the goods on board as well as to the ship: but, upon the evidence, it appeared that the goods, *whether American or not, were to be carried in the ship from [*644 Bordeaux to St. Domingo, and that she was only to call at Norfolk in Virginia for orders; this rendered it unnecessary to discuss or decide the question upon the construction of the warranty, Lord Kenyon being of opinion that the underwriters upon this policy had a right to expect that the goods upon which the freight was payable were consigned to Virginia, and that, if the freight was payable for the carriage of them from Bordeaux to St. Domingo, the underwriters were not liable for the loss, though the ship was to call at Norfolk for orders, the freight payable being in such case different from the freight insured: the plaintiff was nonsuited, and no application was made to set aside the nonsuit. It is clear, upon the authorities, that, if the ship in consequence of sea-damage is prevented from pursuing the voyage, there is a total loss of the ship. It cannot be denied, also, that, if the goods are so damaged by means of a peril insured against that they cease to retain their original character, that would constitute a total loss of freight. [WILLIAMS, J.-Do you dispute the proposition, that, supposing the goods to be reduced by sea-damage to such a state that it is impossible to carry them to their destination without danger to

the ship or to the lives of the crew,-and therefore practically impossible to carry them at all,-that would amount to a total loss of freight?] It is submitted that there is no authority for that proposition. [COCKBURN, C. J.-Is it not clear upon principle, independent of authority?] At all events, that point does not arise here. At the utmost, here is only a loss of the voyage: Brocklebank v. Sugrue, 1 M. & Rob. 102. The coals still remained coals, except for the purposes of the particular voyage. [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 to*645] tally 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, C. 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, C. J.-Unless notice was given, the policy would be a continuing policy.] Taylor v. Wilson, 15 East, 324, 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 Gottenburgh, with intent to proceed from St. Ube's to Portsmouth, to take up convoy on her way to Gottenburgh; the underwriters having no notice that the ultimate destination of the ship and cargo was Gottenburgh. But there there was an express contract. The owner may have thought fit to insure for the more dangerous part of the voyage. [COCKBURN, C. 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, C. 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 rule is thus stated in Arnould on Insurance, Vol. I., p. 230,-"A *vested interest in possession is not necessary to give *646] the right of insuring. An expectancy, coupled with a present existing title to that out of which the expectancy arises, is an insurable interest. Inchoate rights founded on titles subsisting at the time of loss are insurable interests: thus, freight payable either on the arrival of the goods, or under a charter-party, is insurable by the shipowner, provided his title to the freight has accrued at the time of loss, so that