"To George Truscott, Esq. Owner of the ship Cornwall. "Sir, "Madras, Marine Board Office, 22d Oct. 1818. 1820. TRUSCOTT v. "I am directed by the President and Members of CHRISTIE. the Marine Board to acknowledge the receipt of your letter of the 19th instant, and to inform you that the Right Honourable the Governor in Council has approved of your undertaking the projected alteration in the arrangement of the Cornwall on your own responsibility, with an assurance from the government that such a proposition of invalids, &c. to the extent of 200 men will be embarked eventually, as on the usual military survey, the ship shall be found capable of receiving with convenience for the voyage to England. You are requested to give two days notice to the Board, of the time when your ship will be ready for the survey. I am, Sir, &c. " J. Gwatkin, Secretary." The East India Company's servants began loading goods on board the ship a few days after the original tender, and were employed in doing so till late in the evening of the 23d of October. Early in the morning of the 24th a violent gale came on, which drove the ship from her moorings, and by which she was so much disabled, that she was rendered incapable to perform the homeward voyage. At that time, there were loaded on board her about 140 tons of goods, and she could have carried about 80 tons more, besides passengers. When the gale came on, water had been shipped for one hundred invalids, besides the ship's company; but no invalids or passengers were on board, nor were any provisions laid in for them. The alteration in the ship, mentioned in the plaintiff's letter of October 19th, which was stated by him to be necessary, in order to enable him to carry the passengers, had not then been completed, but materials had been brought on board for that purpose, and three planks were laid. The Jury having been directed to find the amount of the loss separately, in respect 1820. TRUSCOTT v. CHRISTIE. of the freight and of the passage-money, they found that the ship could have carried goods, the freight of which would have amounted in all to 2200/. and that she could besides have carried invalids, on which a profit would have accrued to the amount of 14007. The verdict was found absolutely for 481. being the defendant's proportion of the sum of 22007. beyond the sum he paid into Court, and it was found conditionally for the sum of 567. being the defendant's proportion of the said 14001. for passage-money. The money paid into Court covered the freight of goods actually on board. The questions for the opinion of the Court were, first, whether the policy being valued, the valuation could be opened; secondly, whether the plaintiff was entitled to recover the sum of 561. being the defendant's proportion of 1400l. for the passagemoney? The case now came on for argument, when Mr. Serjt. Blossett, for the plaintiff, submitted, first, that it was a valued policy, and could not be opened; and secondly, that the plaintiff was entitled to recover for the passage-money. If he were not, it would be in vain to contend, after the decision of the Court of King's Bench in Forbes v. Aspinall (a), that the policy could not be opened. Here, the freight intended to be insured, was a full freight. So, the freight lost by the perils of the sea was a full freight. The general principle as to an insurance on goods on a valued policy is, that the valuation can only extend to those goods which were intended to be valued in the policy, as connected with the loss by a peril insured against. If the whole subject-matter intended to be covered by the valuation be lost, the assured may recover as for a total loss. The same rule applies to an insurance of freight, but the Court and Jury must be satisfied, that the freight intended to be insured, has been lost by the perils of the (a) 13 East, 323. sea. In Forbes v. Aspinall, it did not appear that the intended freight was so lost, because it was uncertain whether such freight could ever have been procured. ques The learned Serjeant was proceeding with his argument, when the Court directed him to confine himself to the tion relative to the passage-money. It may be contended, that the plaintiff cannot succeed unless he shew an express contract for the conveyance of the invalids to entitle him to freight, but the facts of the case clearly prove, that if there was not a specific contract, there was an engagement on the part of the East India Company, tantamount or equivalent to it. It is not necessary that the contract should be in writing, or under seal, but if there be a reasonable expectation that a full cargo may be shipped, a party has such an interest as will enable him to insure to the amount of the whole of the freight of such cargo. Here, the plaintiff had not only the reasonable expectation of receiving a full freight, but the engagement between him and the Company was in part executed, as the ship had began to be repaired, and water was laid in for the invalids, exclusive of the ship's company, and she was to be appropriated to this specific purpose, which was only frustrated by the perils of the sea. Mr. Serjt. Taddy, contrà. The amount of the loss, with respect to the freight of the goods, has been found and fixed by the Jury, but the plaintiff is not entitled to recover for the passage-money. There is an apparent distinction on the face of the policy between the freight and passage-money, the one being for the carriage of goods, and the other of individuals. It also appears by the correspondence, that the ship, at the time the contract was entered into, was only in a condition to receive goods on board, but not passengers. Although there might be a contract with respect to freight, still, there was none as to the passage-money to be paid for the invalids. At all events, it was a contract with a body corporate, which the East India Company could not enter 1820. TRUSCOTT v. CHRISTIE. 1820. TRUSCOTT บ. CHRISTIE. into, except it were under seal, and their Secretary merely informed the plaintiff that the Board agreed to pay the freight for the goods, and to recommend to government that invalids should be embarked, provided there were men ready for that purpose; and the accommodation allotted for them should be approved of by the proper officer on the behalf of government. The men were never embarked, and the ship was merely began to be got ready for their reception. Although the plaintiff was afterwards informed, that the governor had approved of the projected alteration in the ship, and that 200 men should be embarked, still, it was a mere approval of a projected undertaking by the plaintiff, which was merely executory, and for which the plaintiff could not have maintained an action for a breach of contract. It is always difficult to determine whether freight be lost by the perils of the sea, as there cannot be an inception of risk in an insurance on freight, unless the contract for freight be fully ascertained and completed; and here, it is quite clear, that there was no inception of the risk, as the freight for the pas sage money was not even began to be earned. It is true, that with respect to an insurance on goods the case is different, for there, the risk commences as soon as any of them are put on board, for the owner then begins to earn freight. Al though in Thompson v. Taylor (a) it was held, that an insurance on freight attaches on the ship sailing under the contract by which the freight is to be earned, although there was then no cargo on board, still, there was a charter-party between the parties under seal, by which it was provided, that the ship should depart from the Thames and proceed to Teneriffe, and there receive a cargo of wine on board, the freight of which the freighters covenanted to pay; and it was decided, that the contract for freight had its inception the instant the ship departed from the Thames. Here, however, it is immaterial whether there was any commencement of the freight on the goods, as the contract was to receive goods (a) 6 Term Rep. 478. and passengers; and as the ship was not in a fit condition to receive the latter, there was no inception of the contract by which the passage-money was to be earned; she should have began to earn freight under the whole contract. [Mr. Justice Burrough. If there had been no insurance, and the decks and other parts of the ship had been fitted up, and no man had been put on board, would not an action have been maintainable against the Company?] It is a distinct question whether there were any other remedy, but certainly, no action could be commenced for freight, as there was merely an undertaking to ship the invalids on board, if the ship were put into a particular condition to receive them, but there was no specific contract to ship them at all events. In Thompson v. Taylor the amount of the freight to be earned was reduced to a certainty, viz. at the rate of 35s. per pipe for 500 pipes. Here, however, it was not known how many invalids were to be embarked, as it was merely provided, if there were men ready for that purpose, and the accommodation allotted for them should be approved of. [Mr. Justice Richardson.-Parke v. Hebson (a) was an action on a policy of insurance on freight. The ship was a seeking ship, and was to complete its lading at different places. Having got part of her cargo on board, she was lost by a hurricane in the West Indies, in endeavouring to pass from one port to another to complete her cargo. The plaintiff claimed to recover insurance on freight for that part of the cargo, which was not loaded at the time of the loss, as well as for that which had been put on board; and he gave in evidence a number of letters from the owners of plantations in Jamaica, and other persons, expressing their intention of sending sugars and other goods on board, and the Jury thought that he was entitled to recover as for a full cargo. There was no complete or definite contract for any specific freight, but it was to be (a) Not yet reported. K. B., Mich. Term, 1816. 1820. TRUSCOTT v. CHRISTIE. |