Moore v. on board; and Lord Ellenborough held the underwriters on the outward policy not liable for this loss, as the risk on the ship came to an end, at all events, directly the disposal of the outward cargo at Antigua ceased to be the sole object of the captain's stay there.1 A ship was insured for a trading voyage from the West Indies to this country and back, in the following terms:"At and from St. Vincent's, Barbadoes, and all or any other of the West India Islands (Jamaica and St. Domingo excepted), to her port or ports of discharge and loading in the United Kingdom, during her stay there, and thence back again to Barbadoes and all or any other West India Islands (Jamaica and St. Domingo excepted), until the ship should be arrived at her final port as aforesaid, with liberty to the ship in that voyage to proceed to and touch and stay at any port or places whatsoever, and to load and unload goods at all places she might call at." Having sailed to Liverpool, she there took on board for the return voyage, amongst other things, a quantity of coals and bricks; which, in weight, formed about one-third of the whole cargo, but in value not above one-eighteenth. She arrived at Barbadoes, and disposed of all her cargo except the coals and bricks; with these on board, and also some empty sugar casks loaded on board at Barbadoes, she was ordered to proceed to Berbice for the purpose of bringing back a cargo, when, just before sailing, she was lost by a hurricane off Barbadoes. There was some doubt on the evidence whether the coals and bricks were on board as ballast, or whether they formed part of the outward cargo, and were intended to be disposed of at Berbice. Lord Denman directed the jury to find for the defendant (i. e., that the risk on the ship was at an end at the time of loss) if they thought that the cargo had been substantially discharged at Barbadoes: the jury thought that it had, and found accordingly for the defendant. The Court in banc held this direction right, and, though they 1 Inglis v. Vaux, 3 Camp. 437. seemed to think that the jury had drawn an incorrect conclusion from the facts, refused to disturb the verdict.1 and a market. It has been held in the United States that under a policy To an island on ship to any West India Island named, say Barbadoes, "and a market," the ship will be protected in going bonâ fide from island to island till her cargo is disposed of.2 The special jury, in the case of Leigh v. Mather, stated, Effect of discharging and Lord Kenyon admitted, that if a ship, insured from A. small part to B. put into a port of distress, and there disposed of part of only. her cargo, the risk on the ship does not terminate there, but continues until her arrival at some port at which it was originally contemplated that she should discharge her cargo in whole or in part.3 This appears to be a very just rule, and is illustrated and confirmed in the jurisprudence of the United States. Where a ship was insured from the United States to Europe and back" to her port of discharge in the United States," it was held that the landing of 150 boxes of lemons at New York, a port into which the ship had put to wait for orders, the lemons, moreover, being in a perishing state and likely to be spoiled, did not make New York the port of discharge under this policy, so as to terminate there the risk on the ship.1 In the same Court, where a ship, under the same form of policy, having put into New York for orders, and being directed to proceed up the Connecticut River to Middletown, necessarily landed about 3000 bushels of salt into lighters at New York to be carried up to Middletown, and then herself proceeded thither with the residue of the cargo, it was held that, notwithstanding this necessary discharge of part of the cargo there, New York was only the port of arrival, and not 1 Moore . Taylor, 1 A. & E. 25. 2 Maxwell v. Robinson, 1 Johnson's Rep. 333, cited 1 Phillips, Ins. no. 960. So, Deblois v. Ocean Ins. Co., 16 Pick. (Mass.) 303. 3 Leigh v. Mather, 1 Esp. 412. Result. the port of discharge, and therefore that the risk continued to Middletown.1 From these cases it evidently is not the fact of unloading at any port into which the ship runs in the course of the voyage, that puts an end to the risk on the ship, when insured either generally to an island or country, or to her port or ports of discharge. It is not until she has moored twenty-four hours in good safety at the first port at which she was intended to unload, and at which the master actually breaks bulk for the purpose of unloading, either the whole or the greater part of the cargo, that the risk on the ship will be held to terminate. If, indeed, the port she puts into be one to which she was originally destined, then, if she be lost after having moored there twenty-four hours in good safety, the risk on the ship will, no doubt, be at an end, even although she has not actually broken bulk, but be only preparing to unload her cargo at the time of the loss. On the other hand, if the ship enter a port with only a contingent purpose to unload there in case circumstances should render it expedient, it has been decided in the United States that such port shall not be deemed her port of discharge, so as to terminate the risk on the ship by her mooring there for twenty-four hours in good safety. A vessel, insured from the West Indies "to her port of discharge in the United States," put into Savannah in Georgia, where the master intended to discharge his cargo if the market was favourable; but, not finding it so, he resolved to proceed to Boston, and accordingly, after doing repairs at Savannah, but without breaking bulk there, he sailed for Boston, and was lost; the Court in Massachusetts held, and apparently on very sound principles, that the risk on the ship, under the circumstances, continued to Boston.2 But where the insurance was to 1 King v. Middletown Ins. Co., 1 Connecticut Rep. 184; 1 Phillips, Ins. no. 962. 2 Lapham v. Atlas Ins. Co., 24 Pickering's Mass. Rep. 1. See 1 Phillips, Ins. no. 962; 3 Kent. Com., "Bilboa or a port of discharge," and the ship had put into Bilboa and discharged part of her cargo, and then sailed to Lisbon; it was held, in the United States, that the outward risk ended at Bilboa.1 France. The general rule in France, as to the duration of the out- Law of ward, and commencement of the homeward risk on a ship insured for the West India trade, seems to be substantially the same as our own; viz., that the risk on the ship under the outward policy continues till her arrival at the port of substantial discharge, and cannot be extended beyond that, merely because an inconsiderable portion of the outward cargo may still be on board after she has sailed from that port, or at the time of loss.? Thus, where a ship, under a policy on the French West India trade, by which the risk was expressed to continue "until the whole cargo should be discharged and landed in good safety," touched at St. Louis in St. Domingo, commenced the sale of her outward cargo, and then proceeded to Aux Cayes in the same island, where she completed the sale of all but one package of hats, and whilst sailing thence for Port-au-Prince was lost with the hats on board; the underwriters on the outward policy were held by the French Courts not liable for this loss, on the ground that the risk had terminated at Aux Cayes, the port of substantial discharge.3 But where a ship, similarly insured, having touched at Jacmel, St. Domingo, and there sold a small portion of her outward, and taken in a small portion (twenty-six bales of cotton) of her return cargo, was lost while sailing from Jacmel to St. Louis, in order, partly to sell the residue of her outward, and partly to complete the loading of her homeward cargo; it was held, that the ship, at the time of 309, note. See also the case of Coolidge v. Gray, 8 Mass. R. 527, cited 1 Phillips, Ins. no. 962. 1 Stephens v. Beverly Ins. Co., cited 1 Phillips, no. 963. "The plain meaning of the expression," said the 2 2 Emerigon, c. xiii. s. 18, p. 108. Port or ports of discharge. loss, was still at risk under the outward policy, the great bulk of the outward cargo still remaining on board.1 As it seems to be repugnant to French law that the outward and homeward policies on ship should be concurrent, Emerigon proceeds to consider what rules will enable the practitioner to determine when the one ceases and the other attaches. No such principle exists in the law of England ; so that if the outward policy be " until moored twenty-four hours in good safety," and the homeward policy be "at and from" the same port, both policies may well be concurrent during the last four-and-twenty hours. Questions have arisen as to the duration of the risk on the ship when she is insured "to her port of discharge," or, "to her port or ports of discharge," or to a named place “and her port of discharge," or "to her final port of discharge or destination." In one of the earlier English cases it was said, that the ship's port of discharge means that at which it was originally intended that the goods should be delivered;3 and it has been held in the United States, apparently on good grounds, that the risk on the ship under an insurance "to her port of discharge" (in the singular) terminates twenty-four hours after she is moored in safety at the port where, in pursuance of the original intention of the parties to the policy, she first breaks bulk for the purpose of discharging her cargo.1 Where the insurance is to her "port or ports of discharge" 12 Emerigon, p. 109, 110; see also 2 See 2 Emerigon, c. xiii. s. for discriminating between the respective assurers as to liability, and the editor's neglect of M. Pazery's query-why not divide the loss, evince a repugnance on their part to conceive of the liability being concurrent and the loss common. 3 Clason v. Simmonds, 6 T. R. 533, note. 4 Coolidge v. Gray, 8 Mass. R. 527; 1 Phillips, Ins. no. 962. |