II. CHA P. of his voyage. On the 23d he renewed the cruife, of which he gave notice as before, and ordered a minute, to that pur pose, 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 separate times of cruifing, when added together, fhould not exceed the fpace 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 circumftanced like the present. Lord Mansfield." This was merely a question of conftruction, on the face of the policy, and unless an usage could have been fhewn in favour of this defultory cruising, 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 Antigua." There can be no general rule. Here the fubject matter, in my opinion, is decifive to fhew, that the fix weeks meant 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 cruise, &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 impofpoffible in practice. Suppofe the fhip returns directly back, cruifing for the space of a week. She may then perhaps take three weeks to return to where fhe had been. Can the then renew the cruife, return again, and fo repeatedly? The voyage, in that way, might left for years. But the true meaning is, "I will excufe a deviation for fix weeks." The inftructions, although it happens they were not read, strike me much. Another argument: Six weeks is a continuation, a con II. a congregate denomination of time. If they had meant CHA P. feparate days, they would have faid forty-two days." The rule for a new trial was made absolute. 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 shall be conftrued a lofs within the meaning of the policy. This mode of treating the subject 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 mafters or mariners; which are the great divifions of perils infured, and which will furnish materials for the three following chapters. CHAPTER THE THIR D. Of Loffes by Perils of the Sea. CHA P. I Shower 323. T HE fubject matter of this chapter may be reduced to a very small compass; 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 in an infurance against perils of the sea, every accident happening by the violence of 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 foresee, nor human strength resist, may be confidered as a lofs within the meaning of such a policy; and the insurer muft answer for all damages fuftained, in confequence of fuch accident. But if a ship be driven by ftrefs of weather on an enemy's coaft, and is there captured, it is a lofs by capture, and not by perils of the fea. Green v.Elmflie, This was ruled by Lord Kenyon in an action on a policy against capture only, and the ship was driven by a hard gale of wind on the coast of France, and was there captured, but fhe did not receive any damage by the wind. Lord Kenyon faid, this was clearly a lofs by capture, for had fhe been driven on any other coast than that of an enemy, she would have been in perfect fafety. The plaintiff had a verdict. Peake 212. 1 Magens 52.76. In cafes where the lofs is not total, but only partial, arifing from a leak, from the ftranding of the ship, or from the loss of her mafts, cables, or rigging, the infurers upon the cargo are liable to reflore the value of all the damaged goods, and the underwriter upon the fhip is alfo anfwerable for all the injury which fhe has fuftained. 8 III. In charter parties, if the veffel freighted was robbed or CHA P. taken by pirates, that was held to be a lofs within the meaning of the words " perils of the fea." It is alfo faid, that 2 Roll. Abr. 248. pl. 10. the fame rule of conftruction prevails as to policies of affur- Comberbatch, ance. That poffibly might, and would be the true conftruc- 56. tion upon those words; but as it is now the universal cuftom to insure against the attacks of pirates, by exprefs words inferted in the policy, that queftion 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 so far, as to say, that the acts of the parties shall 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 those risks against which the underwriter has infured. An action was brought upon a policy of infurance for the value of certain flaves, insured by that policy. The declaration ftated, "that by perils of the fea, contrary winds, cur"rents, and other misfortunes, the voyage was fo much re"tarded, that a fufficient quantity of water did not remain "for the support of the flaves, and other people on board, "and that certain of the flaves, mentioned in the declara"tion, perifhed 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 unanimoufly agreed upon that fome of the flaves fhould be thrown overboard, in order to preserve 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 30 1. a head for every flave thrown overboard. CHAP. A motion was afterwards made for a new trial, upon the ground, that this was not a lofs by perils of the fea. JII. [63] Tatham v. Hodgson, Lord Mansfield." This is a very uncommon cafe, and deserves a further confideration. There is great weight in the objection, that the lofs is flated, by the declaration, to have arisen from the perils of the fea, and that the currents, &c. had made the ship foul and leaky. Now does it appear by evidence, that the fhip was foul and leaky? On the contrary, the lofs happened by mistaking Jamaica for another place. Besides, 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. Suppose, for a moment, that the underwriters, in fome cafes, are liable for the miftake of the captain, yet, if they are not liable in others, the nature of the lofs must be ftated in the declaration, that the defendant may have an opportunity of moving in arreft of judgment, if it be not fufficiently alledged. But it would be impoffible for the defendant in this cafe to move in arreft of judgment: for the facts of the cafe, as proved, are different from those ftated in the declaration. The point of law in arrest of judg ment 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 absolute, on payment of cofts, So in a more modern cafe, in an infurance upon flaves 6 Term R. 656. against perils of the fea, their death by failure of fufficient and suitable provision, though that failure was occafioned by extraordinary delay in the voyage from bad and stormy weather, was holden not to be a lofs within the policy by perils of the fea, but a lofs by natural death, which cannot now be infured against since the ftatutes for regulating the manner of carrying 2 |