ing to go to the Burlings, off Lisbon, in the courfe of his voyage. On the 23d he renewed the cruise, of which he gave notice, as before, and ordered a minute, to that purpose, to be entered in the log-book. From that time he continued cruifing till the 28th of April, when he was taken by an American privateer. Many witneffes were examined, fome of whom thought, that the liberty of cruifing, given by the policy, meant fix fucceffive weeks; others conceived, that if the feparate times of cruifing, when added together, fhould not exceed the space of fix weeks, the terms of the infurance would be complied with but none of them could prove any ufage, as none of the witneffes ever knew a cafe exactly circumstanced like the prefent.

Lord Mansfield.-This was merely a question of construction, on the face of the policy, and unless an ufage could have been fhewn in favour of this defultory cruifing, calling witneffes to fupport it, was calling them to fwear to mere opinion. None of thofe produced knew of any inftance; and, therefore, their evidence ought not to have been received. Yet, I dare fay, their teftimony had great weight with the jury. The meaning of words depends upon the fubject. The inftructions were not read, but they fhew the meaning very clearly, for they run thus: "To cruise fix weeks, and then proceed to Ẩn

tigua." There can be no general rule. Here the fubject matter, in my opinion, is decifive to fhew, that the fix weeks ineant one continued. period of time. A cruife is a well known expreffion for a connected portion of time. There are frequently articles for a month's cruife, a fix weeks cruife, &c. Such a liberty, as in this cafe, to a letter of marque, is an excufe for a deviation. But what is contended for by the plaintiffs is impoffible in practice. Suppofe the fhip returns directly back, cruifing for the pace of a week. She may then perhaps take three weeks

to return to where fhe had been. Can fhe then renew the cruife, return again, and fo repeatedly? The voyage, in that way, might last for years. But the true meaning is, "I will excufe "a deviation for fix weeks." The inftructions, although it happens they were not read, ftrike me much. Another argument: Six weeks is a continuation, a congregate denomination of time. If they had meant feparate days, they would have faid forty-two days. The rule for a new trial was made abfolute.

Having faid thus much of conftruction in general, by which it appears, that the material rules to be adhered to, are the intention of the parties entering into the contract, and the ufage of trade; it will be proper to confider more particularly, what fhall be conftrued a lofs within the meaning of the policy. This mode of treating the fubject naturally leads us to confider loffes. by perils of the fea; loffes by capture, and by detention of princes or people; and loffes by the barratry of the mafter or mariners; which are the great divifions of perils infured, and which will furnih materials for the three following chapters.

CHAPTER THE THIRD.

Of Loffes by Perils of the Sea.

TH

HE fubject matter of this chapter may be reduced to a very finall compafs; as very few questions have ever been agitated in the English courts of law, upon this point. It may, in general, be faid, that every thing which happens to a fhip, in the course of her voyage, by the immediate act of God, without the intervention of human agency, is a peril of the fea. Thus,

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Not. 04.

Thus, in an infurance against perils of the fea, 1Shower 323. every accident happening by the violence of Roccus, wind or waves, by thunder and lightning, by driving against rocks, by the ftranding of the fhip, or by any other violence which human prudence could not forefee, nor human ftrength refift, may be confidered as a lofs within the meaning of fuch a policy: and the infurer muft anfwer for all damage fuftained, in confequence of fuch accident. In cafes where the lofs is not 1 Magens 52. total, but only partial, arifing from a leak, from 76. the ftranding of the fhip, or from the lofs of her mafts, cables, or rigging, the infurers upon the cargo are liable to reftore the value of all the damaged goods, and the underwriter upon the fhip is alfo answerable for all the injury which fhe has fuftained.

56.

In charter parties, if the veffel freighted was 2 Roll. Abr. robbed or taken by pirates, that was held to be 248. pl. 10. a lofs within the meaning of the words "perils Comberbatch "of the fea." It is alfo faid, that the fame rule of conftruction prevails as to policies of affurance. That poffibly might, and would be the true construction upon those words: but as it is now the universal custom to infure against the attacks of pirates, by exprefs words inferted in the policy, that question can now hardly arise.

Although the courts in this cafe, as in all others, will endeavour to give effect to this fpecies of contract, by a liberal and equitable conftruction; yet they will be cautious not to extend the principle fo far, as to fay, that the acts of the parties fhall be made to operate beyond their intention; and therefore they will attend to the words of the contract, and fee, that the lofs, which is proved to have happened, is really one of thofe risks against which the underwriter has infured.

An action was brought upon a policy of infu- Gregfon v. rance for the value of certain flaves, infured by Gilbert, B. R. that policy. The declaration ftated, "that by Eater.

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perils 23 Geo. 3.

"perils of the fea, contrary winds, currents, and "other misfortunes, the voyage was fo much re"tarded, that a fufficient quantity of water did "not remain for the fupport of the flaves, and "other people on board, and that certain of the "flaves, mentioned in the declaration, perished "for want of water." The facts, appearing in evidence, were, that the fhip, being bound from Guinea to Jamaica, had miffed the island, and the crew were reduced to great diftrefs for want of water that the captain confulted with the crew, and it was unanimously agreed upon,, that fome of the flaves fhould be thrown overboard, in order to preferve the reft: that at the time this refolution was formed, there remained but one day's full allowance of water, at two quarts per man. The jury, upon this evidence, found a verdict for the plaintiff, with damages at 301. a head for every flave thrown overboard.

A motion was afterwards made for a new trial, upon the ground, that this was not a lofs by perils of the fea.

Lord Mansfield.-This is a very uncommon cafe, and deferves a further confideration. There is great weight in the objection, that the lofs is ftated, by the declaration, to have arifen from perils of the fea, and that the currents, &c. had made the fhip foul and leaky. Now does it appear by evidence, that the fhip was foul and leaky? On the contrary, the lofs happened by miflaking Jamaica for another place. Befides, a fact has been mentioned by the counfel of throwing fome overboard after the rain fell, a fact, which is not agreed on by both fides, though a very material one.

Mr. Juftice Buller.-The declaration does not, in any part of it, ftate the lofs, which has been the occafion of this demand; and it would be very mifchievous, if we were to overturn this objection. Suppofe, for a moment, that the underwriters, in all cafes, are liable for the miftake

of

of the captain, it would be impofible for the de fendant in this cafe to move in arreft of judgment; for the facts of the cafe, as proved, are different from thofe ftated in the declaration. The point of law in arreft of judgment can only be argued from the facts ftated on record; and the declaration in this cafe ftates, the lofs of the plaintiff to have happened by perils of the fea. The rule for a new trial was made abfolute, on payment of cofts.

If a fhip has been mifling, and no intelligence received of her within a reafonable time after the failed, it shall be prefumed that he has founder

ed åt sea.

The hip Charming Peggy was infured in 1739, Green v. from North Carolina to London, with a warranty Brown. against captures and feizures, and in an action 2 Stra. 1199. the lofs was laid in the declaration to be by finking at fea. All the evidence given was, that the failed out of port on her intended voyage, and has never fince been heard of. Several witneffes proved, that, in fuch a cafe, the prefumption is, that the perished at fea, all other forts of loffes being generally heard of. It was infifted for the defendant, that as captures and feizures were excepted, it lay upon the plaintiff to prove, that the lofs happened in the particular manner declared on. But Lord Chief Juftice Lee faid, it would be unreasonable to expect certain evidence of fuch a lofs, where every body on board is prefumed to be drowned: and all that can be required is the beft proof the nature of the cafe admits of, which the plaintiff has given. He, therefore, left it to the jury, who found according to the plaintiff's declaration.

Michaelmas,

The fame doctrine was held in a more modern Newby v. cafe before Lord Mansfield. It was an action of Read. covenant on a deed, in the nature of a policy of Sittings after insurance, by which the defendants were bound 3 Geo. 3. to infure against any lofs happening before the 30th of November, 1762, free from average. The

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fhip