maining out here, if employed, till you get your affairs settled.

"P.S.-Write as to further funds. I shall require all I have to clear the ship at Mauritius.

"I remain,

"Your obedient Servant,

"John Rippin."

On the 21st of February, 1865, this letter was received in London by the assignees of Mr. Berry who had become bankrupt, and shortly afterwards Mr. Berry shewed a copy of it to the plaintiff.

11. On the 10th of March, 1865, the plaintiff learned that the ship had sailed from Calcutta to Mauritius, and on the 12th of March, 1865, a meeting took place between the plaintiff, Mr. Berry and Mr. Tyser, the plaintiff's broker. At that meeting the plaintiff called Mr. Berry's attention to the master's said letter, and informed him that he considered himself to have no interest in the passage money of the coolies mentioned in the master's letter, and did not wish to insure it, and requested him to compute what cargo the ship could carry over and above accommodation and provisions for the coolies. Mr. Berry calculated accordingly, and said that the ship would earn in freight of rice to the value of 2,000l. over and above accommodation and provision for the coolies. The plaintiff thereupon instructed Mr. Tyser to insure the freight for 2,0007., and it was in pursuance of this instruction that Mr. Tyser procured the said policy to be altered, and the said note or memorandum to be subscribed in the margin thereof as above mentioned.

12. If the evidence stated in the last two paragraphs was properly admitted, then it was found that that evidence was true in fact, and that the plaintiff and his broker, in procuring the said policy to be so altered, and the said note or memorandum to be subscribed in the margin thereof as before mentioned, intended to insure only the freight of rice, and to exclude from the insurance the passage money of coolies. But this intention was not communicated to the defendants. 13. Evidence was given on the part of the plaintiff before the arbitrator by whom this case was stated, intended to shew that by usage and custom of insurance

business the word "freight" simply, when used in a policy of insurance, is confined to freight of merchandise and does not include passage money of coolies. Evidence to the contrary was given on the other side, and no such usage or custom was proved. But the most frequent course, where passage money of coolies is intended to be insured, is to describe it as freight of coolies or passage money of coolies, or by some other term distinguishing it from freight of merchandise. The premium for insuring such passage money upon a voyage from Calcutta to Mauritius is generally less than the premium for insuring freight of merchandise upon the same voyage.

The Court were to be at liberty to draw inferences of fact.

The question for the decision of the Court was whether the plaintiff was entitled to recover in this action any and, if any, what sum of money beyond that paid into Court.

C. Pollock (Cohen with him), for the plaintiff. The money paid into Court is paid on the supposition that there has not been a total loss of what was insured. The insurance was on freight valued at 2,000l., and the question is whether "freight" necessarily covers the passage money of the coolies, or whether it is not confined to the freight in respect of the rice. In the former case there would be only a partial loss, but in the latter case there would be a total loss, and the plaintiff would be entitled to recover the amount claimed in this action. It is quite clear, as appears from the evidence which was tendered before the arbitrator, that what the plaintiff intended to insure was freight proper, irrespectively of the passage money for the coolies. The word "freight" has a well known meaning, and is what is paid for the carriage of goods-1 Beawe's Lex Mercatoria, 187 (6th ed.), and Maude and Pollock's Law of Merchant Shipping, 268 (3rd ed.). In Lewis v. Marshall (1), evidence was not allowed to be given to shew that by the usage of trade, cargo and freight comprised steerage passengers

(1) 7 Man. & G. 729; s. c. 13 Law J. Rep. (N.S.) C.P. 193.

or

and their passage money, and Tindal, C.J., in delivering the judgment of the Court, said, "the words cargo' and 'freight do, prima facie, and in their natural and ordinary meaning, refer to goods only." It is true that Mr. Maclachlan, in a note on this case in his treatise on Merchant Shipping, p. 380, says, "according to Kent (3 Com. 219) there is an American use of the term freight which includes passage money;" but Mr. Maclachlan goes on to observe, "such a use of the term is not English, and I do not think it enters even into the jargon of trade in this country." The effect of the evidence before the arbitrator is, that where the passage money of coolies is intended to be insured, it is usual to give some indication of the same by describing the matter insured as 66 freight of coolies passage money of coolies or the like, as the ordinary meaning of freight would relate to the carriage of merchandise. The word "freight" in this policy should be construed according to its ordinary meaning, and the intention of both parties. The policy can have no avail against such intention-Emerigon, Traité des Assurances, chap. I. sec. 5, citing Casaregis disc. 1, No. 7. So in 1 Duer on Marine Insurance, 162, s. 7, it is said, "The words of the policy are to be understood in their general, ordinary and popular sense, unless in cases where it is manifest from the context that they were used by the parties in a distinct and peculiar sense which is necessary to be adopted to give effect to their immediate intent; or unless a mercantile usage, which from its nature the parties are presumed to know and the Court is bound to follow, has affixed to them a different import.' No doubt there are American cases shewing that freight is used in America in a wider and more loose sense than it is in England; and in 1 Phillips on Insurance, sec. 327, it is stated that " freight, in the common acceptation of the term, is either the amount paid by the hirer of the ship to the owner for the use of it, or the amount paid to the shipowner for the transportation of goods." But it comes back to the meaning of the word in a London policy where, as appears from the evidence taken in the case, the rate of insurance is different in

the case of the carriage of coolies to what it is in that of goods.

[BRETT, J.-In 1 Arnould on Insurance, p. 29, 4th ed., it is said that " freight " has a larger meaning in a policy than in a charter-party, and quoting from Lord Tenterden in Flint v. Fleming (2), it is stated that the term is used in a policy to import "the benefit derived by the shipowner from the employment of his ship," and to include "not only freight properly so called, but likewise that which is often called freight, being the chartered hire of the ship or of part of her." [WILLES, J.-The Merchant Shipping Act, 1854, 17 & 18 Vict. c. 104. s. 504, when limiting the liability of the owner of a ship to the value of the ship and freight in case of injury to any passenger, shews that in the mind of the Legislature there was a difference between freight and passage money.]

It is sufficient, bowever, for the case of the plaintiffs, that, according to its ordinary meaning, freight does not extend to passage money of passengers.

Sir G. Honyman (J. C. Mathew with him), for the defendants.-If the rice had arrived safely and the coolies been lost the plaintiffs would have contended that the passage money of the coolies was covered by the policy, and would have claimed the amount of such partial loss, and what answer could the present defendants have had? Clearly none. Then why are the plaintiffs to construe the word "freight" differently in the present action? It is not disputed that in some cases "freight" may have the restricted meaning sought to be attached to it here. In Lewis v. Marshall (1) the rates of freight were to be at so much per ton, a mode of calculation which is inapplicable to passengers, and the contract also spoke of passage money with reference to passengers, and clearly shewed that the word " freight" was limited to goods, and was not extended to earnings in respect of the carriage of passengers. It has been held, that by an insurance on freight, the owner of a ship may insure the value of his own goods increased by carriage in his own ship

(2) 1 B. & Ad, 45 48.

66

Flint v. Fleming (2); and Devaux v. I'Anson (3); and in Hall v. Janson (4), money advanced to the assured as owner of the ship on account of freight of the cargo, was held to be insured by a policy on 'money advanced on account of freight." It is stated in 3 Kent, Com. 296, 7th ed. that "freight in the common acceptation of the term means the price for the actual transportation of goods by sea from one place to another; but in its more extensive sense it is applied to all rewards or compensation paid for the use of ships including the transportation of passengers.' For this is cited Giles v. The Cynthia (5). So Emerigon describes freight as un salaire qu'on paie ou qu'on promet de payer au capitaine, à condition qu'il transportera la marchandise ou les passagers au lieu indiqué "-Emerigon, Traité des Assurances, chap. 8 sec. 8. In Molloy, book 2, chap. 4, it is said, "if freight be contracted for the lading of certain cattle or the like, from Dublin to West Chester, if some of them happen to die before the ship's arrival at West Chester, the whole freight is become due as well for the dead as the living." To the same effect is Abbot on Shipping, p. 366 (11th ed.), citing Moffat v. East India Company (6). Roccus, in his work De Navibus et Naulo, note 2, says, "Naulum est merces seu pretium quod promittitur magistro navis pro vehendis rebus, sive personis de uno loco ad alium."

[WILLES, J.-The word "naulum" is a very long way from the modern word "freight."][BRETT, J.-In 1 Arnould on Insurance, p. 273 (2nd ed.), it is said: "As we have already had occasion to observe, the word freight in policies of insurance has a very wide and extensive signification, and comprehends all benefit derived by the shipowner from the employment of the ship whether as a general seeking ship carrying the goods of several merchants (i. e., freight, properly so called), or as a ship let out at a certain sum by contract of affreightment for the

(3) 5 Bing. N. C. 519; s. c. 8 Law J. Rep. (N.S.) C.P. 284.

(4) 4 E. & B. 500; s. c. 24 Law J. Rep. (N.s.) Q.B. 97.

(5) 1 Peters Adm. 206.

(6) 10 East 468.

voyage. There can be no question in this country, that a shipowner who has thus let out his ship to hire by a charterparty, either for a gross sum for the whole voyage, or for a fixed sum per month, &c., payable as long as the voyage lasts, may cover his interest in this charter money under a general insurance on freight,' and for this is cited Etches v. Alden (7), and there is added, in a note, "the same point has been determined in the supremo Court of Massachusetts-Clarke v Ocean Insurance Corporation (8).]

Then this being an insurance on freight, the word freight is to be taken in its most comprehensive meaning. If freight simpliciter includes passage money for passengers, then there is nothing in the usage to alter this, as it does not appear that the word is to be construed differently from what is its ordinary meaning. C. Pollock replied.

Cur. adv. vult.

The judgment of the Court (9) was on May 28) delivered by

WILLES, J.-This is an action upon a policy of insurance upon freight on a voyage from Calcutta to the Mauritius. As originally filled in, the policy was upon "chartered freight valued at 7,000l. at and from Sydney to Calcutta and London." It was underwritten by the defendants for 1,000l.

The chartered freight mentioned in the policy was upon a charter-party for the carriage of goods only upon a voyage from Sydney to Calcutta and London.

Upon the arrival of the ship at Calcutta, the voyage to England was abandoned because of the charterers having stopped payment, and the ship took coolies and rice to the Mauritius. To meet this change of Voyage and with the intention of insuring the freight of cargo only to the extent which the vessel would carry in the space not occupied by coolies and their provisions, which intention the plaintiff communicated to his agent but not to the underwriters, the plaintiff valued the freight on goods only at 2,000l.,

(7) 1 Man & Ry. 165.

(8) 16 Pickering's Rep. 289.

(9) Willes, J.; Byles, J.; Brett, J.; and Grove, J.

and procured an alteration of the policy, in effect a new policy, as follows-"It is hereby declared and agreed that the within policy is from Sydney to Calcutta, and thence to Mauritius, instead of as before stated, and to return 20 per cent. for safe arrival there. London, March 13, 1865. The within interest is now declared to be on freight valued at 2,000l. March 13, 1865."

The sum underwritten by the defendants remained unaltered, 1,000l., or half of the new valuation, the assured being (so far as these underwriters were concerned) his own insurer for the other half.

The vessel proceeded upon the voyage to Calcutta with 360 coolies and their necessary provisions for which the passage money of 54 rupees each coolie, payable on arrival at the Mauritius, amounted to 1,9447., and 12,000 bags of rice, the bill of lading freight of which was 1,4127. Near her destination the vessel was wrecked, and the rice and freight thereof were wholly lost. 348 of the coolies were saved and reached their destination, and their passage money, 1,8791. 4s., was paid.

The question is for what amount the underwriters are answerable.

The plaintiff insists that the passage money of the coolies ought to be thrown out of consideration as not being" freight" within the policy, and that he is entitled to recover as for a total loss of the "freight" insured, 1,0007.

The defendants on the other hand insist that the passage money of the coolies is to be considered as freight insured by the policy, and that the full freight being thus taken at coolies 1,9447. and rice 1,4127.=3,3561., they are bound to pay only the proportion of the partial freight, lost coolies 641. 168., rice 1,4127. =1,4767. 168., which will be produced by the following sum in the rule of three, viz., 3,3567. : 1,000l.::1,476l. 16s. : 4391. and a fraction; and to cover this claim they have paid a sufficient amount, 4401. 1s., into Court. Assuming passage money to be freight within the policy, and included in the valuation, this mode of calculation was not disputed by the plaintiff, and requires no further comment than a reference to the discussion in the

2nd volume of Mr. Willard Phillip's highly valuable work on Insurance, sec. 1203, where the subject is discussed.

The first and chief question, therefore, is whether the passage money of the coolies was freight within the policy and to be taken in favour of the underwriters as included in the valuation. Freight, according to the dictionaries, includes, first, the cargo, secondly, the actual transport from one place to another, thirdly, the hire of the ship or part of it, or the charge for the transport of goods therein. It may by extension include the passengers or even passage money, as, for instance, upon a question arising upon the now abandoned maxim that "freight is the mother of wages," or upon a question of sale or capture or abandonment, because the passage money is equally with the freight of goods an incident or accessory of the ship. Accordingly, Chancellor Kent (3 Kent's Commentaries, 296, 7th ed.) states that "freight, in the common acceptation of the term, means the price for the actual transportation of goods by sea from one place to another, but in its more extensive sense it is applied to all rewards or compensation paid for the use of ships, including the transportation of passengers," and he refers to the case of Giles v. The Cynthia (5), in which the question arose upon a claim to wages. And in Mulloy v. Backer (10), where the question was whether the passage money or an apportioned part of it became payable in the case of capture on the way, Lawrence, J., said, "foreign writers consider passage money the same as freight," and Lord Ellenborough added, "except for the purpose of lien it seems the same thing." It must be added to this exception that, in respect of a general average, not only the passengers but also their provisions are exempt from the general rule of contribution, not being regarded as merchandise-Brown v. Stapyleton (11). Upon a question of constructive total loss, passage money payable at the port of discharge, so far as it is available, if at all, must be taken into account as well as freight of goods, but so must general

(10) 5 East 321. (11) 4 Bing. 119.

average according to Kemp v. Halliday (12), and this consideration is therefore inconclusive.

It is certain that freight is not ordinarily used in marine policies in its most extensive sense as including cargo, and the question in each case must be what under the circumstances and in the context of the particular policy it was intended to express. Until late periods Until late periods when, in consequence of increased facility of communication, the passage across the ocean of large bodies of free men as emigrants or cultivators had become so common and important there was little reason for insuring passage money, especially as it has been, and is in so many cases, paid beforehand so as not to be at the shipowner's risk. The only case in which the question could arise is one like the present, where the earning of passage money depended upon the arrival of the vessel. Accordingly, it is not surprising that no trace of passage money being treated as freight for the purpose of insurance is to be found in the reported cases, nor that the policy in common use should be framed with minute reference to circumstances affecting the ship and cargo, and in terms at least should make no reference to passengers. The case of Flint v. Fleming (2) was relied on as shewing that freight has been extended so as to include the value of the vessel to the owner in carrying his own goods, but this only shews that the freight insured by the policy is not limited to money due upon a contract with or liability of a third person. It decided that "freight" sufficiently represents the interest of the shipowner in the carriage of his own goods, and includes the value of their carriage. That case does not decide that the value to the owner of his being carried as a passenger in his own vessel, or of others being so carried, is freight within an ordinary policy, and it does not therefore touch the question whether freight in this policy of insurance includes passage

money.

Evidence was given on both sides to prove a customary use of the word freight

(12) 35 Law J. Rep. (N.s.) Q.B. 156; s. c. Law Rep. 1 Q.B. 520.

NEW SERIES, 41.-C.P.

in the particular trade, but this evidence was ineffectual to make out a binding usage either way. It appears, however, that the most frequent course is to describe passage money by a distinguishing term, and not merely as frieght, and it was proved that for insurance purposes there is a distinction between freight and passage money, because the premium for the latter upon a voyage from Calcutta to the Mauritius is generally less than that for the former, so that as a matter of business the not mentioning the subject upon the occasion of the insurance would indicate that the freight was probably intended to refer to merchandise. This distinction is further supported in the case of the present policy by more than one consideration; first, the policy was originally upon "chartered freight," and the charter was for goods only. The change to "freight " in general would therefore prima facie seem to indicate freight of the same kind upon the voyage substituted “instead of as before stated." Secondly, the policy not only generally provides as do ordinary policies for ship and goods as the subjectmatter under consideration, but provides in specific terms applicable to the freight of merchandise only for the time at which the risk is to commence. These terms are as follows-" The insurance aforesaid shall commence upon the freight and goods or merchandise aforesaid, from the loading of the said goods or merchandise on board the said ship or vessel as above, and continue until the said goods or merchandise be discharged and safely landed." This clause obviously has a specific effect upon the freight, because it excludes the application of those cases in which the risk on freight has been held to attach upon the goods being ready but not loaded. It therefore helps strongly to indicate the meaning of freight in this policy.

In this state of facts, and upon the construction of the policy in question, we adopt the view of the assured, that the freight of merchandise only was assured according to his intention declared to his agent, and upon which the valuation actually took place, which intention, however, not being communicated to the underwriters could not of itself have altered

Z