Thompson v. is a fixed sum stipulated to be paid to the shipowner in the terms of a charter-party for the use of his ship, or of part of it, on the voyage therein described. The question now to be considered is, what are those circumstances that determine the commencement of the risk on this species of freight, which we have called the chartered hire of the ship. Under such a contract, it is obvious, the ship may earn freight, in this sense of the term, though no goods may ever be put, or be ready or engaged to be put, on board. Consequently, if there have been an inception of performance under the charterparty, and such performance is interrupted and the completion of the contract is prevented by the perils insured against, the assured is entitled to recover the whole amount insured upon freight, quite irrespective of the question whether, at the time of loss, she had taken any goods on board for the voyage insured, or whether any were contracted to be shipped. A shipowner who insured half the freight of his ship on a voyage "at and from London to Teneriffe, and at and from thence to the Bay of Honduras," had chartered the ship to sail from London to Teneriffe, where she was to take wine on board and carry it out to the West Indies; freight for the whole voyage to be paid at the rate of 35s. per pipe. The ship sailed from London on her voyage under the charterparty; and before her arrival at Teneriffe, and, of course, before any of the wine was taken on board, she was captured by the French. The Court held the plaintiff entitled to recover the whole amount of the sum insured on his freight.' Suppose upon the contract of charter-party and insurance in that case, the fact had been that the ship was destroyed by fire at London, the question then, and that a very nice one upon the facts, would have been whether there had been an inception of performance under the charter-party.2 The charter-party being to proceed from London to Teneriffe, and there load, although the policy was "at and from 1 Thompson v. Taylor, 6 T. R. 478. 2 See per Blackburn, J., in Barber v. Fleming, L. R., 5 Q. B. 59, 70, 71, cited post, p. 442. London," there could have been no inception of performance under such a charter-party, if she had been destroyed while on the gridiron, or in a graving dock for repairs, notwithstanding such repairs were being done with a view to the chartered voyage. This would have been so, although she was then at her moorings, if her sails were still not bent to the yards. For the question under consideration arises on a policy upon freight. If it were a policy on the body of the ship, the question could receive but one answer from the moment of her being at London. But freight the subject of insurance being under and in virtue of a contract, the whole question is when, or under what circumstances, the title thereto first becomes inchoate. Negatively, it may be answered, that such title at the terminus a quo of the charterparty does not arise until the ship is in a fit condition to perform the contract. The contract of charter-party, however, may be such that the question of fit or unfit condition may not arise, the terminus a quo of the policy being in fact an intermediate port in respect of performance under the charter-party. This appears by the following case: A ship that was loaded and about to sail from Calcutta to Mauritius was chartered to "proceed on her present voyage to Mauritius, and having discharged her cargo there, to proceed to Akyab, and there load," &c., and a policy was then effected" on chartered freight valued at 11507. at and from Mauritius to rice ports," &c. The vessel accordingly sailed from Calcutta with the cargo then on board, and at Mauritius, while she was discharging, but while there were still about two thirds of that cargo on board, she was driven from her moorings by a hurricane, and reduced to a wreck. It was held in an action on the policy that the assured was entitled to recover as for freight to arise under the second. charter-party.2 The policy being at and from Mauritius attached at the 1 Tonge v. Watts, 2 Str. 1251, ante, p. 433. 2 Foley v. United Fire and Marine Insurance Co. of Sydney, L. R., 5 Barber v. moment of the vessel's arrival there. But for the purposes of an insurable interest which could have been covered by a policy suitably worded, there appears to have been an inchoate title to freight under the second charter-party, from the moment of the ship's proceeding from Calcutta under the first; for, performance of the first charter-party was so incorporated with the terms of the other as for all the purposes of a policy properly worded to become performance under the second. This is illustrated by the following cases: A vessel "now lying in the harbour of Bombay" was chartered for a voyage from Howland's Island to a port of discharge in Great Britain with a cargo of guano. A policy was effected "on freight, chartered or otherwise, valued at 36007. at and from Bombay to Howland's Island, while there, and thence to ports of discharge in the United Kingdom, with liberty to sail to, touch and stay at any port or places whatsoever." She sailed in ballast from Bombay for Howland's Island intending to call at Auckland, in New Zealand, to complete her supply of provisions and water. But while making for Auckland she got ashore and was so injured as to be quite incapable of the voyage. It was held that an inchoate title to freight had accrued, and that the assured was entitled to recover on the policy.1 "From the moment," says Cockburn, C. J.,2 "that a vessel is chartered to go from port A. to port B., and at port B. to take a cargo and bring it home to England, or to take it to any port, which I will call port C., for freight, the shipowner having got such a contract, has an interest unquestionably in earning the freight secured to him by the charter; and having such an interest it is manifest that that interest is insurable; and he loses the freight and benefit of his charter just as much by the ship being disabled on her voyage to the port at which the cargo is to be loaded, and 1 Barber v. Fleming, L. R., 5 Q. B. 59. 2 Barber v. Fleming, L. R., 5 Q. B. 67. from which it is to be brought, as he would lose it by the disaster arising from the perils insured against between the port of loading and the port of discharge." In the same case Blackburn, J.,' says: "Upon the face of the policy there is a bargain between the assured and the underwriters by which, if during that voyage, by one of the perils insured against, freight is lost, the underwriters should pay. We have, therefore, to see whether there was freight lost during the voyage, which involves the question whether this chartered freight had come into existence at the time the accident happened which caused the alleged loss; whether at that time the interest had commenced. When there is an insurance upon freight, so long as the matter remains merely contingent, so long as the shipowners have only a good hope of getting freight, no freight is in existence; and if the ship is lost, there would be no loss of freight, inasmuch as the freight had never come into existence, and all that the shipowners have lost is the hope of earning the freight. But, on the other hand, when a shipowner has got a contract with another person under which he will earn freight, and has taken steps and incurred expense upon the voyage towards earning it, then his interest ceases to be a contingent thing, but becomes an inchoate interest, and is an interest which, if afterwards destroyed by one of the perils insured against, is lost, and ought to be paid for by the underwriters." Rankin, By charter-party it was agreed that the Sir William Eyre Potter v. should proceed to New Zealand with a cargo for owners' benefit, and from thence to Calcutta, and there load a cargo for Liverpool for the freighter. The owners of the ship effected a policy on 4,0007. homeward chartered freight from Calcutta to Liverpool, "lost or not lost, at and from Clyde to New Zealand, and for thirty days after arrival." After her arrival at New Zealand the vessel grounded, and received such damage by sea perils as to have become a constructive total loss. As soon as the owners knew the extent of the 1 Barber v. Fleming, L. R., 5 Q. B. 70, 71. Horncastle v. Davidson v. damage, which was not till she got to Calcutta, they refused to repair, and sued the insurers for the amount of the homeward chartered freight, the damage having occurred before the expiration of that policy. It was held, in the Exchequer Chamber and by the House of Lords, that there was an insurable interest in this homeward freight from the moment that she sailed on the voyage from Clyde to New Zealand, which had been incorporated with the homeward charterparty, and that as the ship had been incapacitated for performing the voyage from Calcutta to Liverpool by sea perils, the right to recover under the policy had accrued.1 A shipowner insured the freight of his ship for a homeward voyage "at and from Dominica, and all or any other of the West Indian Islands (Jamaica and St. Domingo excepted), to London," having chartered the ship for a voyage from London to the Island of Dominica and back to London, on the terms of being paid half the net freight of the outward voyage, if it exceeded 1000/., but if not, then 5007.; and, as to the homeward freight, the current rate for a full cargo, or, if the cargo should not be full, dead freight for the deficiency. The ship arrived safely at Dominica with her outward cargo, and there unloaded as much of it as she safely could before taking in some part of the homeward lading. A full cargo of West Indian produce had been procured by the charterer's agents at Dominica, and was ready to be loaded on board the ship there; but before any portion of it could be actually taken in, the ship was captured by the enemy. The Court held that, as the voyage had commenced under which the freight was to be earned, the assured was entitled to recover the whole amount of the insurance on the homeward freight.2 Upon the same principle, where an insurance was effected on the homeward freight of a West Indian ship, chartered for a voyage out and home on the terms of taking in a full 1 Potter v. Rankin, L. R., 6 H. of Lds. 83, 151. 2 Horncastle v. Suart, 7 East, 400. |