did not arrive at Montreal till the 30th of August. Evidence was given on the trial that the delay of arrival at Montreal had materially varied the risk and the rate of premium. Evidence was offered, but not received, to show that the delay was not voluntary, but was due entirely to sea perils upon the voyage to Montreal. It was held, that this evidence was properly rejected, as upon the facts of this case, the only question for the jury was, whether the delay had materially varied the risk.1 The above decision is the earliest in our books, as to the effect of involuntary delay preceding the time fixed for such. a policy attaching. The question had come before Tindal, C. J., in respect of voluntary delay, and was then decided adversely to the assured. That learned judge, in the course of his observations, seems to intimate that his decision would have been the other way in case the underwriter had been prepared to expect delay by notice, or what is equivalent to notice, by the existence of a usage. But Blackburn, J., in the later decision already cited, expressly reserves his opinion. as to the effect of either notice or usage on the question.* 3 A further condition of the policy attaching in such a case, is that the ship must have once been at the outward port in good physical safety. Cousins. Hence under a policy on ship "at and from St. Michael's, Parmeter v. or all or any of the Western Islands, to England," where it appeared that the ship, after encountering very bad weather on the whole of the outward voyage, cast anchor off St. Michael's in such a leaky condition as to be unfit to take in a cargo, and was only kept afloat by pumping, and that, after lying in the roadstead for upwards of twenty-four hours (during the whole of which time she was in great danger from the storm that still continued), she was blown out to sea, and wrecked. Lord Ellenborough held, that, under these 1 Ibid. 2 Mount v. Larkins, 8 Bing. 108. 3 Ibid. 121. De Wolf v. Archangel Marit. Bank & Ins. Co., supra. To be there in physical, not political, safety. Bell v. Bell. What physical safety is required. circumstances, the risk had never commenced on the ship under the homeward policy, for the ship had never been at St. Michael's in good safety.1 But all that is required in such case is, that the ship should have been once "at" the terminus in quo of the homeward voyage in good physical safety, irrespective altogether of political danger. Thus, under a policy on ship "at and from Riga to her ports of discharge in the United Kingdom," where immediately on arrival at Riga her papers were seized by government, and the ship and cargo sequestrated and condemned before the outward cargo had been discharged, Lord Ellenborough held, that, as the ship had been once "at" Riga in good physical safety, the risk under the homeward policy had attached on the ship.2 All that is required, in fact, is, that the ship while in the foreign port, which, by the policy, is made the terminus a quo of the homeward voyage, should "be in such a condition as to enable her to lie there in reasonable security, till she is properly repaired and equipped for her voyage; "3 if she be able to keep afloat in harbour sufficiently for the purpose of being repaired, the risk under such a policy commences immediately on her first arrival, and continues during the time she remains there in a course of preparation for the voyage insured.5 4 Under a policy on ship "at and from " Havana to Greenock, the ship arrived off Havana, and the master engaged a tug 1 Parmeter v. Cousins, 2 Camp. 148. 235. 2 Bell v. Bell, 2 Camp. 475. 3 Per Lord Ellenborough, Parmeter v. Cousins, 2 Camp. 235, 237; Haughton v. Empire Mar. Ins. Co., L. R., 1 Ex. 206. Annen v. Woodman, 3 Taunt. 299. See also per Lord Kenyon, in Forbes v. Wilson, 1 Marshall, Ins. 5 Thus Lord Hardwicke laid it down that when a ship is thus insured "at and from " an outport for the homeward voyage, the words "first arrival" are always implied: Motteux v. London Ass. Co., 1 Atk. 548; Forbes v. Wilson, 1 Marshall, Ins. 148; Smith v. Surridge, 4 Esq. 25. and pilot for the purpose of taking her to a clear anchorage. She was towed into the harbour, past the place where she ultimately discharged her cargo, to a point at the head of the harbour called the Regla Shoal. There she grounded, and received damage from the anchor of another ship. "In my opinion," says Channell, B., delivering judgment in the case, "she was at that time at Havana, and consequently the risk under the policy had attached. The damage occurred at Havana, geographically speaking, and there is nothing which to my mind shows that the parties, at the time this policy was underwritten, contemplated any other meaning of the word at. All the limitation which the law appears ever to have imposed as to the time of the commencement of the risk in such a case is, that the ship should arrive at the port at which she is insured in a state of sufficient repair or seaworthiness to be enabled to be there in safety."1 is excusable. Length of time consumed in necessary repairs, though What delay considerable, does not take the ship out of the protection of the policy, if the repairs be with an ultimate view to the voyage insured; nor does any other reasonable delay, if justified by necessity, or incurred bonâ fide for the purposes of the voyage3-it may be to take in simulated papers,1 or a particular description of crew," or provisions when rendered necessary by unavoidable delay." The principle, in short, established by the cases is, "that a detention for a reasonable time for the purposes of the adventure insured must be allowed, and whether the time is reasonable must be determined, not by any positive or arbitrary rule, but by the state of things existing in the port. where the vessel happens to be."7 1 Haughton v. Empire Marine Ins. Co., L. R., 1 Exch. 206, 209, 210. 2 Motteux v. London Ass. Co., 1 Atk. 548. 3 Smith v. Surridge, 4 Esq. 25; Grant v. King, 4 Esq. 174. 4 Langhorn v. Allnutt, 4 Taunt. 511. 5 Grant v. King, 4 Esq. 174. Raine v. Bell, 9 East, 195. 7 Per Tindal, C. J., in Phillips v. Irving, 7 M. & Gr. 328. See to the What delay inexcusable. In foreign port. In home port. On the other hand, it must be borne in mind that a policy on ship "at and from " a port implies, in respect of a ship already in the port, that the voyage insured shall be very shortly commenced, or, at all events, be in the near contemplation of the parties. Otherwise all protection under the policy is lost, if an unreasonable time elapse before preparing for the voyage insured, and there be no excuse for delay, such as the necessity for repairs. Thus, for instance, if all thought of the voyage insured be laid aside, and the ship lie in the port for years, with the knowledge of the owner, the risk would be held, either never to have attached, or, at all events, to have come to an end directly the determination to abandon the voyage was finally fixed.2 In case it be a foreign port, and she have been lying there a long period without reference to any particular voyage, it seems the policy will attach only from the time that preparations are commenced with reference to the voyage insured.3 In case it be a home port, and she is then lying there, the policy generally attaches from the period of its subscription, but the ship is not protected by it if any unreasonable delay intervene between the subscription of the policy and her sailing on the voyage insured. Thus a policy was effected on the 28th January, "at and from Bristol to London,” on a yacht then lying in the port of Bristol, and it did not sail thence till the middle of May following, the delay not being same effect the remarks of Story, J., 1 Per Tindal, C. J., in Palmer v. lie in the port for months before she 2 See the observations of Lord Hardwicke in Chitty v. Selwyn, 2 Atk. 539. 3 Per Story, J., Seamans v. Loring, 1 Mason's R. 127, cited in 1 Phillips, Ins. no. 935. for repairs or other necessary purpose; there the Court held this delay unreasonable, and that the yacht at the time of the loss was not protected by the policy.1 This general rule is liable, however, to be modified by the Exception by usages of a particular trade. Thus, in the Newfoundland usage. trade, owing to the well-known practice of making fishing expeditions or intermediate trading voyages after the ship's first arrival off the coast of Newfoundland, the homeward risk, though expressed to be "at and from" any port or ports in Newfoundland, does not attach on the ship on her first arrival out, but only from her beginning to prepare for the homeward voyage.2 Liddard. What is such a beginning to prepare for her homeward "Beginning to prepare for voyage, within the meaning of the rule, as brings the vessel her homeward voyage." under protection of the policy, appears by the following case-A ship engaged in a cruising voyage in the Southern Lambert v. Atlantic, was insured for a trading voyage home by a policy "at and from Pernambuco or any other port or ports in the Brazils to London, -beginning the adventure on the goods from the loading thereof on board, and upon the ship on the determination of her cruise, and preparing for her voyage to London," &c. The cruise being ended, the captain went to Pernambuco, and when off that place, sent in one of his officers to see if a homeward cargo could be procured there, but as there was none, he sailed southwards for St. Salvador for the same purpose, and was lost at sea between the two places. The Court held, that this going to Pernambuco, and sending in an officer to inquire after a cargo, was such "a preparing for his voyage to London" within the words of the policy, that the homeward risk attached from that moment, and continued at the time of the loss.3 1 Palmer v. Marshall, 8 Bing. 79, 317. S. C., Palmer v. Fenning, 9 Bing. 460. 2 Vallance v. Dewar, 1 Camp. 503, and the other cases there collected. |