used for various purposes. If we were to hold the Defendant liable upon such a case as has been disclosed by the Plaintiff, we should cast a great burden upon the owners of houses.

BYLES, J. I thought, at the trial, that there was no evidence against the Defendant, and I am still of the same opinion.

1866.

HIGGS

ย.

MAYNARD.

Rule refused.

LANE and Another v. NIXON.

Friday, April 27.

Marine insur

ance.

Warranty of

seaworthiness. Lighter em

cargo.

1. The warranty of seaworthiness, which is implied on the part of the assured in respect of a ship, does not extend to lighters not belonging to the ship, but employed for the landing of the cargo at the port of discharge. 2. To a declaration on a voyage policy in the usual form, by which the Plaintiff insured certain goods from Liverpool to Melbourne, "includ- ployed to land ing all risk to and from the ship," and it was provided that the adventure upon the goods should continue "until the same be there (i. e., at Melbourne) discharged and safely landed," alleging an average loss by the perils assured against; the Defendant pleaded that the injury happened after the goods had been discharged from the ship, and while they were in a lighter (which it was conceded did not belong to the ship) intended to convey them from the ship to the shore, and that the lighter was not seaworthy for the purpose, and the injury was caused solely by such unseaworthiness. Held, that the plea was no answer to the action.

DE

ECLARATION upon a policy of insurance, by which it was alleged that the insurers caused themselves to be insured, "lost or not lost, at or from Liverpool to Melbourne, including all risk to and from the ship, upon any kind of goods and merchandises, and also upon the body, tackle, apparel, ordnance, munition, artillery, boat and furniture of and in the good ship or vessel called the Queen of Beauty," "beginning the adventure upon the said goods and merchandises from the loading thereof aboard the said ship at Liverpool upon the said ship, &c., and so shall

1866.

LANE

v.

NIXON.

continue and endure during her abode there upon the said ship, &c., and further until the said ship with all her ordnance, tackle, apparel, &c., and goods and merchandises whatsoever, shall be arrived at Melbourne upon the said ship, &c., until she hath moored at anchor twenty-four hours in good safety, and upon the goods and merchandises until the same be there discharged and safely landed." The policy stated that the perils which the assurers took upon themselves were those of the seas, men of war, fire, enemies, pirates, &c., as usual, and contained the usual memorandum that corn, fish, &c. were warranted free from average unless general or the ship stranded-sugar, tobacco, &c. warranted free from average under 5l. per cent., and all other goods, also the ship and freight warranted free from average under 31. per cent. unless general or the ship stranded; and the goods insured, consisting principally of boiler plates and pig iron, were warranted free from particular average unless stranded, sunk or burnt.

The declaration then stated that in consideration that the Plaintiffs paid to the Defendant 17. 10s. sterling as a premium for the insurance of 1007. upon the goods in the policy mentioned, the Defendant subscribed the policy as insurer of 1001. upon the said goods; that the goods were shipped at Liverpool on board the ship to be carried therein on the voyage, and that the Plaintiffs, until the loss, were interested in them, "and the said ship with the said goods on board thereof departed from Liverpool aforesaid on her said voyage, and during the continuance of the said risk the said goods were by the said perils insured against, by being sunk within the meaning of the exceptions in the said warranty from particular average, greatly injured and damaged, and the Plaintiffs also thereupon and thereby incurred and were put to great costs and charges and expenses in labouring and endeavouring to save and recover the said goods of the Plaintiffs, and by reason of the premises sustained an average loss upon the

goods exceeding 3 per cent. of the said average loss in respect of the sum of 100l. so insured by the Defendant as aforesaid, amounting to 417. 11s. 1d. And all conditions were fulfilled, and all matters and things were done, happened and existed, and all times elapsed necessary to entitle the Plaintiffs to be paid the last-mentioned sum. Yet the Defendant has not paid the same."

6th plea. "That the said injury or damage happened after the said goods had been discharged from the said ship the Queen of Beauty, and while they were in a certain other ship or lighter intended to convey them from the said ship the Queen of Beauty to the shore; and the Defendant further says that the said other ship or lighter was not seaworthy for the purpose on which she was so employed, and that the said injury or damage was caused solely by such unseaworthiness and not otherwise" (a). 7th plea. "That the said damage and injury complained of occurred from the acts, neglects and defaults of the Plaintiffs and their servants and agents."

Demurrer to the 6th plea: upon the ground that there was no implied warranty of the seaworthiness of lighters employed in landing cargo.

Demurrer to the 7th plea: upon the ground that it was consistent with it that the damage was proximately caused by the perils insured against, and that the underwriters were liable.

Joinder in both demurrers.

Watkin Williams for the Plaintiffs.-The pleas are bad. This action is brought upon a voyage policy on goods in the common form, from Liverpool to Melbourne," until the same be there discharged and safely landed," " including all risk to and from the ship." Three questions are raised :

(a) During the argument it was agreed that the plea should be amended by inserting an averment that the lighter was a Melbourne boat, and did not belong to the ship.

1866.

LANE

V.

ΝΙΧΟΝ.

1866.

LANE

v.

NIXON.

1st. Whether in a voyage policy on goods there is any implied warranty that the boats or lighters in which the goods are discharged at the end of the voyage shall be seaworthy for the purpose; 2ndly. Whether, if not, underwriters are liable upon such a policy for a loss happening to the goods in the course of their discharge in a lighter occasioned by the unseaworthiness of the lighter for the purpose; and, 3rdly. Whether underwriters are liable upon such a policy for a loss happening in the course of the voyage where the loss has "occurred from the acts, neglects and defaults of the assured, and their servants and agents." The first two questions are raised by the demurrer to the 6th plea, and, as there is no express decision upon the point, those questions must be decided upon principle. The relation which the discharge of the cargo by means of lighters or ship's boats bears to the insured voyage and to the risk covered must be considered. According to the principles of English law, upon which the implied warranty of seaworthiness is founded, there was no implied warranty as to the lighter in this case. The discharge of cargo by means of lighters or boats is merely a part and a final stage of the insured voyage. It is all one voyage and one risk, and not two voyages and two risks. Biccard v. Shepherd (a) shows that this distinction is most important. That was an action upon a policy of insurance on copper ore on board a ship at and from the anchorages off Hondeklip Bay and Port Nolloth to Swansea, to commence upon the loading on board the ship at and from the above ports. Part of the ore was loaded at Hondeklip Bay and part at Port Nolloth. The ship was seaworthy at Hondeklip Bay, but became unseaworthy before leaving Port Nolloth, in consequence of being overloaded, and was lost on her voyage from Port Nolloth to Swansea ; and it was held that the insurer of the ore was entitled to recover for the

(a) 14 Moore, P. C. 471.

ore shipped at Hondeklip Bay, but not in respect of the ore loaded at Port Nolloth; 1st, as the policy covered two risks, and the sea voyage was to be considered to begin at different times; and, 2ndly, as the implied warranty that the ship should be there fit to carry the additional as well as the original cargo appeared by the evidence not to have been complied with.

The practice of discharging goods in lighters is as ancient as marine insurance, and, in 1757, in Pelly v. Governor and Company of the Royal Exchange Assurance (a), Lord Mansfield lays down the proposition, that the insurance extends to the ship's boat, and that the discharge by it is part of the voyage in a way that has always been regarded as law, and his reasoning applies to this case. In that case the Plaintiff being part-owner of an East India ship lying in the Thames, and bound on a voyage to China and back again to London, insured it at and from London to any ports or places beyond the Cape of Good Hope and back to London. Upon the ship's arrival in the river Canton in China, where she was to stay to clean and refit, the sails, yards, tackle, and other furniture, according to well-known usage, were taken out of her and put into a warehouse called a bank saul, built for the purpose on a sand bank or small island, in order to be repaired and preserved till the ship was refitted; and having been destroyed by an accidental fire which broke out in another bank saul, the insurers were held liable for the loss. At p. 348, Lord Mansfield says, "The insurer, in estimating the price at which he is willing to indemnify the trader against all risques, must have under his consideration the nature of the voyage to be performed, and the usual course and manner of doing it. Everything done in the usual course must have been foreseen and in contemplation, at the time he engaged. He took the risque, upon a supposition that

(a) 1 Burr. 341.