Barber v.
Fleming.

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., "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. 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.,1 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.
Suart.

Davidson v.
Willasey.

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.

cargo of produce for the homeward voyage, and carrying it either to London or Liverpool at the current rate of freight; and the ship after arriving at her out-port of discharge in the West Indies, was lost there, when she had taken on board only half her homeward cargo, the Court held that there had been at the time of loss, an inception of the entire voyage out and home, and that the assured was entitled to recover as for a total loss of the homeward freight.1

Lindo.

A shipowner insured the outward freight by a West Indian Atty v. ship under a charter-party from London to Madeira, and thence to Jamaica; the freight or hire for the whole voyage being 1357., to be paid at Madeira, on a true delivery of the whole of the London cargo there, in wine to be taken on board and carried on, with the rest, to Jamaica, free of freight, under the denomination of freight wine. The ship at Madeira had taken in part of her Jamaica cargo, but not the freight wine, when she was blown out of Funchal roads by a storm, and captured at sea by the French. The assured recovered the whole amount insured, for the reason that as soon as the ship broke ground from London on the voyage, an inchoate right to the whole freight attached, which was defeated only by the intervention of a peril insured against."

The Court were also of opinion that under this policy, considered with reference to the terms of the charter-party, the risk must be held as continuing till the ship, with the freight wine on board, arrived at Jamaica; it being an insurance, not only that the shipowner should be in a condition to earn freight by receiving freight wine on board at Madeira, but also that the wine so received should, notwithstanding the perils insured against, be safely carried to Jamaica.3

Lafone.

By a charter-party at Monte Video, a vessel was to proceed Ellis v. to the Falkland Islands, and thence to Santa Cruz, in Patagonia, there to take in a cargo of guano, and to discharge it

1 Davidson v. Willasey, 1 M. & Sel. 313.

2 Atty v. Lindo, 1 B. & P. N. R,

236.

3 Per Sir J. Mansfield, 1 B. & P. N. R. 241.

Care and

skill in wording the policy.

at a port in Europe; freight at 2507. a month, pay for one month to be made when the vessel sailed from the Falkland Islands, the balance at the port of discharge. There was a safe delivery of cargo at the Falklands, and an advance of 2501., being one month's freight. She then loaded guano at Santa Cruz, and completed the cargo with hides at Monte Video, where a new charter-party in effect annulling the first was made, by which the vessel was to proceed to Havre direct with the cargo then on board, freight (at the same rate as by the first charter) to be paid at the port of discharge, after deducting 2507. received on account of that charter-party. The vessel sailed, and went down at sea, a total loss.

In an action on a policy, "lost or not lost at and from Monte Video to Havre on 4507. freight advanced," the Court held the plaintiffs entitled to recover the 2507. as freight advanced, since that was not a separate sum paid in respect of the voyage to the Falkland Islands, but part of an entire sum payable for the whole voyage insured, which therefore remained at risk till the ship arrived in Havre, her port of discharge in Europe.1

Inadvertence in filling up the blank form of the policy not unfrequently defeats the intention manifested in the earlier clauses of it.

Thus where a ship had been chartered for a voyage from Liverpool to Lagos, and thence with a cargo to the United Kingdom, at a lump sum for the round voyage, a policy was effected on freight "at and from Lagos," "the insurance to commence on freight from the loading of the goods on board at as above." The ship had arrived at Lagos, and was lost before she had shipped any of her homeward cargo; but it was held that in consequence of the second of the two clauses cited, the first was so modified that the assured could not recover.2

1 Ellis v. Lafone (in error), 8 Exch. R. 546; 22 L. J. (Exch.) 124.

2 Beckett v. West of England Ins. Co., 25 L. T., N. S. 739.