port or ports whatsoever, for a certain space of time, an open roadstead which is the usual place of loading and unloading is a port within the meaning of that phrase in the policy.1 Goods are within the policy as not safely landed, so long as they are in boats or lighters, if this be the usual way of taking them from the ship to the port; and we should apply the same rule to any mode of conveyance by water, however unusual, which was made necessary, and therefore justifiable by the circumstances of the case. If the consignee sends his own lighter for the goods, the risk has been held to terminate on the delivery of the goods on board the lighter. The policy terminates when the goods are landed at the usual place of discharge, although the consignees may not be able to obtain possession of them at

tion of the papers to seize the ship and cargo, which was done, and condemnation of them followed, it was held that the vessel had never been moored in safety. Horneyer v. Lushington, 15 East, 46.

1 Cockey v. Atkinson, 2 B. & Ald. 460.

2 Matthie v. Potts, 3 B. & P. 23; Stewart v. Bell, 5 B. & Ald. 238; Wadsworth v. Pacific Ins. Co., 4 Wend. 33; Osacar v. Louisiana State Ins. Co., 17 Mart. La. 386. In this case the vessel, whose cargo was insured, arrived in the roadstead of Soto La Marina, in Mexico, and anchored outside of the bar in the usual place twenty leagues from the town, and commenced to discharge her cargo in lighters, according to the usage of the trade. After part had been landed, the vessel was driven away by a tempest and never heard from again. The court held that the plaintiff was entitled to recover for all the goods not brought to the town. But the court said that if the goods had been landed on the beach and transported to the town on the backs of mules, this would have been a land risk for which the underwriters would not have been liable.

3 Sparrow v. Caruthers, 2 Strange, 1236. But see Langloie v. Brant, cited 2 B. & P. 434, note. If he merely hires a lighter and pays for it himself, the risk continues till the goods are landed. Rucker v. London Ass. Co., 2 B. & P. 432, note; Hurry v. Royal Exch. Ass. Co., 2 B. & P. 430, 3 Esp. 289. In Strong v. Natally, 4 B. & P. 16, the goods were taken out in a lighter hired in the usual manner, and the lighter brought to the wharf. Owing to the roughness of the weather, the goods could not be landed that night, and the lighterman asked the owner of the cargo whether he should stay and see the goods landed, to which the owner replied that he would look to the landing himself. In the night the lighter was sunk, and the court held that the underwriters were not liable, as the owner had taken the goods into his own car care and possession. So, where the owner of goods, in consequence of the port of destination being blockaded, accepted them at an intermediate port, paying full freight, and thence transported them in lighters to their port of destination, it was held that he could not recover from the underwriter either the expenses of transshipping, and the freight paid for the lighters, or a premium of insurance paid for the risk in the lighters. Low v. Davy, 5 Binn. 595.

once. There is some conflict of authority in regard to the point whether the risk continues till the whole cargo is delivered, or whether it is severable in its nature. On principle and on the preponderance of authority we are inclined to adopt the latter view.2

The risk terminates as soon as the voyage insured is abandoned or broken up by a peril not insured against. If goods are insured on board a ship to a port, and from thence on board another ship to a final port, the risk continues while the goods are being removed in the usual manner from one ship to the other. Where the vessel is wrecked and the cargo is sent

1 Gracie v. Marine Ins. Co., 8 Cranch, 75. The insurance in this case was on the cargo of a vessel "at and from Baltimore to Leghorn," the risk to continue until the goods should be safely landed at Leghorn. By the laws of that place, ships and cargoes on arrival were obliged to perform a quarantine of thirty days before the cargo or any person on board could be admitted into the city. The cargo was taken from the ship in public lighters to the lazaretto by the officers of government, and until the expiration of the quarantine, the consignees could not remove the goods, and freight could not be collected. The court held, under these circumstances, that the underwriters were discharged when the goods were deposited in the lazaretto. See also, Brown v. Carstairs, 3 Camp. 161. In Mobile Mar. Dock & Mut. Ins. Co. v. McMillan, 27 Ala. 77, where goods were insured until safely landed at the port of New Orleans, the court held that the underwriters were discharged from liability after the cargo was discharged on the wharf, on the shore of Lake Ponchartrain. By the usage of trade, goods were sent forward from that place to the city of New Orleans by railroad, but the court held that land risks were not covered by the policy. And in Osacar v. Louisiana State Ins. Co., supra, p. 328, n. 2, the court said that if the goods were to be taken overland on mules to the port of delivery, the underwriters would not be liable, though the risk would continue if they were taken by water.

2 The contract is considered as an entirety in Gardiner v. Smith, 1 Johns. Cas. 141, and in Fletcher v. St. Louis Mar. Ins. Co., 18 Mo. 193, and it is treated as severable in Gracie v. Maryland Ins. Co., 8 Cranch, 84; Osacar v. Louisiana State Ins. Co., 17 Mart. La. 386; and Mobile Mar. Dock & Mut. Ins. Co. v. McMillan, 27 Ala. 77.

In Ward v. Wood, 13 Mass. 539, the policy stated that the risk was to cease when the vessel should receive on board a cargo, with the intention of proceeding to the United States. This was held to mean a full cargo.

3 See Brown v. Vigne, 12 East, 283, and cases cited ante, p. 247, n. 7.

4 Tierney v. Etherington, cited 1 Burr. 348. In this case goods were insured in a Dutch ship from Malaga to Gibraltar, and at and from thence to England and Holland, both or either. It was agreed that on the arrival of the ship at Gibraltar the goods might be unloaded and reshipped in one or more British ship or ships for England and Holland. On arrival at Gibraltar, there being no British ship there, the goods were put into a store-ship which was considered as a warehouse, and while there were lost in a storm. The underwriter was held liable. See Oliverson v. Brightman, 8 Q. B. 781,, and cases ante, p. 235, n. 2.

forward in another vessel to the port of destination, the underwriters are liable for a loss while the goods are in such substituted ship.1

SECTION IV.

OF A LOSS AFTER THE EXPIRATION OF THE RISK.

The voyage may have terminated and the policy have expired by limitation, either of time or of space; and even the risk may be said to be at an end; and after all this, a loss may occur for which the insurers are liable. But this can take place only when the cause of the loss was a peril insured against, which was encountered and became injurious to the property while it was covered by the policy; and the ultimate loss was not only the effect of the injury so sustained, but an effect so direct, imme: diate, and inevitable, that the injury must be deemed to be the proximate and only cause of the loss.

This question is often considered as if it asked only, whether,

1 Plantamour v. Staples, 1 T. R. 611, note, 3 Doug. 1. The ship and cargo were in this case insured at and from Marseilles to Madeira, the Cape, and the isles of France and Bourbon, and to all parts and places in the East Indies and Persia, or elsewhere beyond the Cape of Good Hope, from port to port, and during her stay and trade to all ports and places, until her safe arrival back at her last port of discharge in France. The vessel sailed with a cargo consisting of bullion and merchandise consigned to the plaintiff's correspondents at Pondicherry, with directions to barter and sell the same on their account, and to make the returns in other goods, the produce of India. The vessel was lost at the Isle of France, but the cargo was sent on in another vessel by the master to Pondicherry. It was there received by the plaintiff's correspondents, and the proceeds invested in other goods, and forwarded to France in another vessel. This vessel was also condemned at the Isle of France, and the goods sent on in another vessel. This last was captured, and, with the cargo, condemned. Held that the policy continued to attach, notwithstanding the change of vessels, and that the underwriter was liable. And if in consequence of a disaster the ship cannot pursue her voyage to the port of destination in a direct manner, the underwriters on goods are liable notwithstanding the deviation. Winter v. Delaware Mut. Ins. Co., 30 Penn. State, 334. So if it is necessary on account of the loss of the ship to carry the cargo over land to transship it, the underwriters are liable while this is being done. Bryant v. Commonwealth Ins. Co., 13 Pick. 543, 555.

if a vessel, or other insured property, receives its death-blow during the policy and dies after the policy expires, the insurers are liable. But there is some danger of being misled by this figurative language, as was remarked in a recent case by Lord Campbell.1

The cases which present this question are not easily reconciled, and some of them are obscure; the latest, Knight v. Faith, being, as we think, the best. But we cannot doubt that the true principle is that which we have already indicated. We might express it by saying, that if insured property be injured by a peril insured against, the insurers are liable for the direct and immediate and inevitable consequences, wherever or whenever these may occur.2

1 In Knight v. Faith, 15 Q. B. 649.

2 One of the earliest cases on this subject, is Merctony v. Dunlope, cited 1 T. R. 260. The only original report that we have of it, is the citation of it by Willes, J., in Lockyer v. Offley, 1 T. R. 252, 260. He said: "It would be a dangerous doctrine to lay down, that the insurer should, in all cases, be liable to remote consequential damages. This has been compared to a death's wound received during the voyage, which subjected the ship to a subsequent loss. To this point, the case of Meretony v. Dunlope (E. 23 Geo. 3) seems very material. That was an insurance on a ship for six months, and, three days before the expiration of the time, she received her death's wound, but, by pumping, was kept afloat till three days after the time: there the verdict was given for the insurer, which was confirmed by the court. I will put another case; suppose an insurance on a man's life for a year, and some short time before the expiration of the term he receives a mortal wound, of which he dies after the year, the insurer would not be liable." This case has been followed in Ohio. Howell v. Protection Ins. Co., 7 Ohio, 284, where a steamboat met with an accident during the existence of the policy, in consequence of which she sunk the same day, but after the risk had expired. It was held, that as the damage done by the accident, excluding that occasioned by the sinking of the boat, did not amount to fifty per cent., the assured could not abandon.

In Furneaux v. Bradley, B. R. East, 20 G. 3, 2 Marsh. Ins. 584, the vessel was driven on the rocks and injured, but her condition could not be examined into till after the expiration of the policy. She was then found to be much damaged, but not irreparably so, but a difficulty having arisen on account of the want of materials, she was sold. Held, that the damage sustained by the running on the rocks should be estimated as an average, and not as a total loss. In Coit v. Smith, 3 Johns. Cas. 16, horses were insured against all risks, until safely landed. During a gale, one of the horses was thrown down and injured, and he died after he was landed. It was held, that the death of the horse was to be put out of the case, and that the underwriters were liable for the injuries which he had sustained, up to the time he was landed.

In Knight v. Faith, 15 Q. B. 649, the jury found a special case, to the effect that the vessel was insured on time, from Sept. 24, 1845, to Sept. 24, 1846. The vessel was stranded and brought into the harbor of Santa Cruz, on the 16th of Sept. 1846. She

Possibly, a distinction might be made in this respect between policies on time, and those on a voyage. Because, in the former, the liability of the insurer expires at a certain hour, wherever the ship may be; but in the latter, the policy expires when the ship has been moored twenty-four hours in safety; but she has never been moored in safety, if so injured that her destruction was inevitable.1

Upon the question of forfeiture and seizure, we have seen, that the cases, although in some conflict,2 tend to the doctrine that the statute, together with the act or circumstance which forfeits the ship or cargo, has no effect in changing the property or upon the rights or liabilities of owners or insurers, until actual seizure.

remained there in safety till the middle of October, at which time, the cargo having been got out, it was found that the necessary repairs could not be made there, as there was no dock-yard, workmen, or materials at that place, and that she could not be taken to any other place to be repaired. She was accordingly sold by the master, who was also a part owner, for 777. 10s. No abandonment was made. It was held to be a case where the insured could not recover for a total loss, without an abandonment, but the underwriter was held liable for a partial loss. Speaking of Meretony v. Dunlope, Lord Campbell, C. J., said: "We very much doubt, whether any such doctrine ever was laid down by Lord Mansfield, and the decision of the court may have proceeded on a totally different ground. The doctrine seems contrary to the principle of insurance law, that the insurer is liable for a loss actually sustained from a peril insured against during the continuance of the risk; and if a ship insured for time, during the time, receives damage from the perils of the sea, although the amount of it be not ascertained till the expiration of that time, and she is kept afloat till then, upon the assured's taking proper steps by giving notice of abandonment, or by obtaining evidence of the sum which would be required to repair the damage sustained, there does not appear any good reason why they may not, according to the facts, proceed against the insurers for a total loss or for a partial loss." We apprehend that Lord Campbell, by the words, Iamount of it be not ascertained," means not only, when the amount of money needed for repair be not ascertained, but when the extent and character of the injury are not and cannot be ascertained until the direct consequences are fully developed.

It was also contended in this case, that as a total loss had taken place, for which the defendants were not liable, the partial loss must be considered as merged in the total loss, and consequently, that there was no liability at all, on the authority of Livie v. Janson, 12 East, 648, which case decided that where a partial loss occurred and there was afterwards a total loss by an excepted peril, the underwriters were not liable at all. But the court held, that there was no total loss in this case, as there was no such loss known in insurance law as a sale by the master; and that, if there had been a total loss, the defendants were not at liberty to say, that the partial loss was merged in the total loss.

1 Shawe v. Felton, 2 East, 109. See also, Peters v. Phoenix Ins. Co., 3 S. & R. 25.

2 See ante, p. 79, n. 4.