in the alternative, the duration of the risk could not, it would seem, be confined to the first port at which she has broken bulk and discharged the cargo to any amount, however trifling, but would be extended until twenty-four hours after her arrival at that port, where, in fact, she substantially discharges her cargo, i. e., the great bulk of it.1 This is unquestionably the rule when the ship is insured Final port of discharge. "to her final port of discharge," as appears by the following cases: Ward. A ship insured "till her safe arrival at her last port of Moffat v. discharge in the East Indies or China," unloaded all her cargo at Madras, and was afterwards lost on her way to Bengal; the Court held, that the risk on the ship had ended before the time of the loss; for by the true interpretation of the policy, the last port of discharge was not that where the ship might have been originally destined to discharge any part of her cargo, but that where she actually did discharge the whole of it.2 In this case the whole cargo had been discharged at Madras in that which follows, only a part of the cargo was unloaded there, and the residue, intended for an ulterior port, was still on board at the time of the loss. Greenwood. A ship, insured "from London to Madras and Bengal, or Preston v. the ship's last port of discharge of her Europe cargo beyond the Cape of Good Hope," was, to the knowledge of the underwriters at the time of subscribing the policy, destined for China; on arriving at Madras she unloaded a considerable part of her cargo there, but still had on board all that part of it which had been originally destined for China, when she perished by a hurricane in Madras roads. Lord Mansfield told the jury to find for the plaintiffs, for he held that the risk on the ship, under this policy and these circumstances, continued till the ship's arrival at China.3 1 See ante, p. 419. 2 Moffat v. Ward, 4 Dougl. 29, note (a), 31, note (b). 3 Preston v. Greenwood, 4 Dougl. 28, 33; see also Moore v. Taylor, 1 A. & E. 25. If a ship insured to port or ports, "until arrival at her last port of discharge," elects to put into some other port because it would be illegal by the laws of war to continue her voyage to the port of original destination, and disposes of a considerable part of her cargo in the substituted port, the risk on the ship ends after she has moored there twenty-four hours, even though the captain may not at the time of loss have entirely abandoned the intention of ultimately proceeding to the place of his original destination. A ship was insured "at and from London to any port or ports in the River Plate, until her arrival at her last port of discharge in the River Plate." There are three ports in the River Plate, which are reached in the following order by a ship arriving from England: 1. Maldonado; 2. Monte Video; 3. Buenos Ayres. The captain, on sailing from England, had intended to proceed to Buenos Ayres, but on his arrival in the River Plate, learning that Buenos Ayres was in the hands of the Spaniards, then at war with this country, he sailed past Maldonado, and put into Monte Video, which was then occupied by the English. His intention, on putting into Monte Video, was to land and sell his whole cargo and finish the voyage at that place, if he found the markets favourable; finding the sale, however, duller than he expected, he had not given up all thoughts of proceeding on to Buenos Ayres for a market, with that portion of the cargo which he could not sell at Monte Video, when his ship was fouled in Monte Video harbour, and received the damage, to recover which the underwriter was now sued under this policy. The Court held that the plaintiff could not recover, the risk on the ship having come to an end after she had been safely moored for twenty-four hours in Monte Video.1 In the course of the argument Bayley, J., intimated that the words "last port of discharge," must mean "the last practicable friendly port of discharge; " just as in an insurance on a ship "from Liverpool to any of the Windward 1 Brown v. Vigne, 12 East, 283. or Leeward Isles," Lord Kenyon had previously held that the meaning of such policy must be to any of such isles as were friendly; for that a hostile port could not be in the contemplation of the parties at the time the policy was effected.1 It will be observed, that in this case the port originally contemplated as the final port of discharge, was in a state of open hostility at the time the vessel reached the River Plate; so that it would have been absolutely illegal for her to have proceeded to such port: this is very different from the case of a mere temporary obstruction, or one in which, though there might be danger, yet there would be no illegality in proceeding to the final port; and that constitutes the point of distinction between this case and that of Oliverson v. Brightman.2 finally abandons all intention of proceeding to an end immediately original If a ship entirely abandons the voyage insured, and finally If the ship gives up all hope of proceeding to the port of her original destination, the risk on the ship is at that determination is definitely formed. if the ship, yielding to the irresistible force of present cir- destination. cumstances, merely put back or lie by for a time, with the intention of ultimately proceeding to the original terminus, she is deemed to be still on the voyage insured, and the risk continues till her arrival at the final terminus. But in order to this being so held, the obstruction must be temporary only in its nature, and the ultimate point of destination continue the same. A ship insured to a port in the Baltic, finding it blocked up with ice, took shelter for the winter in a place as near to it as she could safely go, and waited till the spring, when, on the first thaw, she sailed for it again; the risk on the ship was held to continue till her arrival there.3 1 Neilson v. Delacour, 2 Esp. 619. 2 Oliverson v. Brightman, 8 Q. B. 781, ante, p. 400. 3 Per Lord Ellenborough, C. J., citing the case in the judgment in Blackenhagen v. London Assurance Parkin v. Duration usage. But where a ship insured from London to Revel, finding an embargo at Revel, sailed back from the Baltic by orders. of a British man-of-war to Copenhagen Roads, and then, entirely abandoning her voyage, accompanied the fleet to England; Lord Ellenborough nonsuited the plaintiff on the ground that the risk had terminated under this policy, at all events, directly the ship had put about for England in Copenhagen Roads.1 His Lordship, however, remarked that had the ship been coming home as the best means of getting finally to Revel, and there had been a possibility of her accomplishing that object when the loss happened, she might still have been considered in the course of the voyage insured; but that all thought of completing her original voyage seemed to have been abandoned when she sailed home from Copenhagen with the fleet.2 In such cases, in fact, the risk may be held to continue on the ship during the whole period in which she can be fairly considered as taking measures with a view to ultimately arriving at the port of destination; but she will not be protected if, when turned away or forced to desist from proceeding to her original port, because of its being in the hands of the enemy, she forthwith prosecutes a new voyage to the nearest friendly port, even though it be a voyage of necessity.3 The usages in the East India Company's trade may still prolonged by be referred to for the purposes of illustration. By the usual course of that trade, the Company's ships on arriving out were liable to be employed at the discretion of the different presidential governments in intermediate voyages, or in what was called the country trade; their charter-parties stipulated permission to prolong the ship's stay for a year or more; and their policies adapted to this usage were uniformly held, in the absence of restricting clauses, to cover all intermediate 2 Ibid. 1 Blackenhagen v. London Ass. Co., 1 Camp. 454. 3 Parkin v. Tunno, 11 East, 22. voyages in the Indian seas." So great, indeed, was the influence of usage in the construction of these policies, that the clause "to touch, stay, and trade at any ports whatsoever," or this clause, omitting the words "and to trade,' sufficed, with the usage, to protect the ship while engaged on one or even a second country voyage for trading purposes.2 Greenwood. It was formerly a rule in the East India trade, that a Preston v. voyage to China was not to be held included in a policy on a Company's ship, unless China were expressly named in the instrument; where, however, it clearly appeared that the ship's destination for China was publicly known at the India House, and that the premium was the same as it would have been on a China voyage, although the insurance in terms was only "from London to Madras and Bengal, or the ship's last port of discharge of her Europe cargo beyond the Cape of Good Hope," Lord Mansfield held that although the word China was not introduced into the policy, yet, as the words in themselves certainly extended to China, the risk, under the circumstances, must be considered as continuing on the ship till her arrival in China, and the underwriters as having contemplated the ship's proceeding thither when they subscribed the policy.3 If the assured and the consignees of cargo agree to substitute an earlier port for the port of delivery, the risk will end there. A ship insured " from Boston to Tonningen," was compelled, by stress of weather, to enter the Elbe for safety, and proceed up to Gluckstadt, where the consignees consented to receive the cargo, and did receive it: it was held in the United States, that there was an end of the risk on the ship at that port. But the risk on a ship insured for a 1 Salvador . Hopkins, 3 Burr. 1707; Gregory v. Christie, 3 Dougl. 419; 1 Park, Ins. 104; 1 Marshall, Ins. 273. 2 Farquharson v. Hunter, 1 Park, Ins. 105; 1 Marshall, Ins. 274; Gregory v. Christie, quâ supra. 3 Preston v. Greenwood, 4 Dougl. 28. Buller, J., had on a former trial directed the jury to find for the defendants. Shapley v. Tappan, 9 Mass. R. 20, cited 1 Phillips, Ins. no. 961. Earlier termination by consent. |