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nothing but the intervention of the loss can prevent him from earning it." Murdock v. Potts is observed upon by Lord Ellenborough in Taylor v. Wilson; but it is cited without disapprobation in Hall, App., Brown, Resp., 2 Dow, P. C. 367.

CRESSWELL, J.-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 expense of putting the coals in a state to enable them to be carried safely to their destination was a very fit object of inquiry. It would be just as reasonable to call upon the shipowner to incur great expense in the repair of the ship when she has 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 [*647 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 shipowner 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 Morby v. Jones, 4 B. & C. 394 (E. C. L. R. vol. 10), 6 D. & R. 479 (E. C. L. R. vol.

16), that, to entitle him to freight, the shipowner must have actually carried the goods to their destination. I think that doctrine is not fairly deducible from the decision in Morby v. Jones. If it were, I for one should not be disposed to agree with it, inasmuch as it *in*648] volves, 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 shipowner 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 specially 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. That clearly could not have been the intention of the policy. If the goods the carriage of which is to entitle the shipowner to freight are lost, *the freight is as *649] much lost as if the ship herself were lost. The question simply comes to this, whether a person who can only earn 1007. freight by expending 10007. 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, C. J.-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, 15 East, 324, 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, [*650 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 shipowner 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 reshipped and carried to their destination in their then state: 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 [*651 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 N. S., VOL. II.-28

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 BURGESSES 0. THE BOROUGH of HARWICH. June 2.

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 empowered by an act of parliament to make, according to a specification and plans annexed, at or for the sum of 12,305l., 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 73187., to be paid as in the specification mentioned; and that he should also construct the "second portion," as described, for 49877., 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 *652] 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, and burgesses agree to let to the said Edmund Smith the making, constructing, and completing of the several works empowered to be made under and by virtue of the act of parliament made and passed in the last session, and intituled The Harwich Improvement Quays and Pier Act, 1851' (14 & 15 Vict. c. xlii.), and which works are fully set forth and described or laid down in the specification as altered in ink and plans hereunto annexed, at or for the price or sum of 12,3051., and on the conditions and in manner hereinafter mentioned: And the said Edmund

Smith hereby agrees and contracts with the said mayor, aldermen, and burgesses to take the said work and to construct, make, and complete the same in manner set forth in the said specification, and for the several sums, and subject to the provisions hereinafter mentioned and contained, that is to say, That he the said Edmund Smith, his executors and administrators, shall and will well, truly, and faithfully construct, make, and execute the pier and the cant thereof, part of the wharfing, and filling in at the back thereof, and also the dredging and other works mentioned and described in the said specification as the first portion of the said works, and as laid down on the said plans, and comprised within the letters, numbers, and colours mentioned in the same specification, with reference to the said plans, at and for the price or sum *of 73181., to be paid in manner set forth in the said specifica[*653 tion and that he and they shall and will also well, truly, and faithfully construct, make, and execute the second portion of the said works as set forth and described in the said specification, and laid down on the said plans, at and for the price or sum of 49877., subject to the following provisions, that is to say, that the assent of the commissioners of Her Majesty's woods, forests, land revenues, works, and buildings shall be given to the said mayor, aldermen, and burgesses to carry out the said last-mentioned works, so far as the same affect the land or soil, or any rights in respect thereof, belonging to Her Majesty in right of Her crown; and that the said mayor, aldermen, and burgesses are not prevented from carrying out the same last-mentioned works by the Eastern Union Railway Company, or any other company, or by any person or persons under or by virtue of the power given to the said railway company for making part of the said last-mentioned works; and further that the approbation of the lords commissioners of Her Majesty's treasury is given to the said mayor, aldermen, and burgesses to borrow on bond or on mortgage of the rates and property of the borough, and of the rates and tolls to be levied and property to be created by virtue of the said act, such sum or sums of money as may enable the said mayor, aldermen, and burgesses to pay for the same; and which said sum of 49877. is also to be paid in manner set forth in the said specification: And he the said Edmund Smith doth, for himself, his executors and administrators, further agree, that, immediately on the execution of these presents, and from time to time until the completion of the said contract or contracts, he and they shall and will obey, carry out, and perform all and every the provisions and stipulations provided in the said specification to be obeyed, carried out, and performed: And the said mayor, aldermen, and burgesses hereby [*654 promise and agree that they and their successors in the said corporation shall and will well and truly pay or cause to be paid to the said Edmund Smith, his executorsor administrators, all and every sum and sums of money which may hereafter become due and payable

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