such as being baffled in their attempts, in despair chose a mode of death, by fasting, or died through despondency: that is not mortality by mutiny, but the reverse, for it is by failure of mutiny. The great class are such as received some hurt by the mutiny, but not mortal, and died afterwards of other causes, as those who swallowed water, jumped overboard, &c. This is the great point."

The jury found, that all who were killed in the mutiny, or died of their wounds, were to be paid for. That all those who died of their bruises, which they received in the mutiny, though accompanied with other causes, were to be paid for. That all who had swallowed salt water, and died in conse quence thereof, or who leaped into the sea, and hung upon the sides of the ship, without being otherwise bruised, or who died of chagrin, were not to be paid for.

In the construction of policies of insurance for time (a), which are very frequent, the same liberality, equity, and good sense, have always prevailed, as in all other insurances and the Courts have gone, as far as possible, to decide according to the intention of the parties.

others v. Bridge,

In an action on a policy of insurance on the ship Mary, a Syers and letter of marque, the words of the policy were, "at and from Liverpool to Antigua, with liberty to cruise six weeks, and to Doug. 09. "return to Ireland, or Falmouth, or Milford, with any prize " or prizes." The ship having been taken, this action was brought, and came on to be tried before Mr. Baron Hotham at Lancaster, when a verdict was found for the plaintiffs.

Upon a motion for a new trial, the material parts of the evidence were, that the policy was made on the 9th of February 1779, and there was no time fixed in it for the commencement, or the duration of the voyage. The captain of the ship, being called on the part of the plaintiffs, swore that he in fact sailed from Liverpool on the 28th of February: he was

(a) By the act of 35 G. 3. c. 63. s. 12. no policy upon any ship, or interest therein, shall be made for any longer term than twelve calendar months. See ante, p. 45.

five days before he cleared the land; and he proceeded on his direct voyage till the 14th of March, chasing, however, at different times, from the 7th to the 14th, at which time he began his cruise, giving notice thereof to the crew, and ordering a minute of it to be entered in the log-book, which was done. From the 14th of March, he continued cruising about the same latitude till the 17th or 18th of April: when he discontinued the cruise, of which he also gave notice, intending to go to the Burlings, off Lisbon, in the course of his voyage. On the 23d he renewed the cruise, of which he gave notice as before, and ordered a minute, to that purpose, to be entered in the log-book. From that time he continued cruising till the 28th of April, when he was taken by an American privateer. Many witnesses were examined; some of whom thought, that the liberty of cruising given by the policy, meant six successive weeks; others conceived, that if the separate times of cruising, when added together, should not exceed the space of six weeks, the terms of the insurance would be complied with: but none of them could prove any usage, as none of the witnesses ever knew a case exactly circumstanced like the present.

Lord Mansfield." This was merely a question of construction, on the face of the policy, and unless a usage could have been shewn in favour of this desultory cruising, calling witnesses to support it, was calling them to swear to mere opinion. None of those produced knew of any instance; and therefore their evidence ought not to have been received. Yet, I dare say, their testimony had great weight with the jury. The meaning of words depends upon the subject. The instructions were not read, but they shew the meaning very clearly, for they run thus: To cruise six weeks, and then proceed to Antigua. There can be no general rule. Here the subject-matter, in my opinion, is decisive to shew, that the six weeks meant one continued period of time. A cruise is a well-known expression for a connected portion of time. There are frequently articles for a month's cruise, a six weeks' cruise, &c. Such a liberty, as in this case, to a letter of marque, is an excuse for a deviation. But what was contended for by the plaintiffs is impossible in practice. Suppose the ship returns directly back, cruising for the space of a

week.

week. She inay then perhaps take three weeks to return to where she had been. Can she then renew the cruise, return again, and so repeatedly? The voyage, in that way, might last for years. But the true meaning is, I will excuse a deviation for six weeks.' The instructions, although it happens they were not read, strike me much. Another argument; Six weeks is a continuation, a congregate denomination of time. If they had meant separate days, they would have said forty-two days." The rule for a new trial was made absolute.

Having said thus much of construction 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 usage of trade; it will be proper to consider more particularly, what shall be construed a loss within the meaning of the policy. This mode of treating the subject naturally leads us to consider losses by perils of the sea; losses by capture, and by detention of princes or people; and losses by the barratry of the masters or mariners; which are the great divisions of perils insured, and which will furnish materials for the three following chapters.

CHAPTER III.

Of Losses by Perils of the Sea.

THE subject-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 said, that every thing which happens to a ship, in the course of her voyage, by the immediate act of God, without the intervention of human agency, is a peril of the sea. Thus in an insurance 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 stranding of the ship, or by any other violence which human prudence could not foresee, nor human strength resist, may be considered as a loss within the meaning of such a policy; and the insurer must answer for all damages sustained, in consequence of such accident. But if a ship be driven by stress of weather on an enemy's coast, and is there captured, it is a loss by capture, and not by perils of the sea. 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 she did not receive any damage by the wind. Lord Kenyon said, this was clearly a loss by capture, for had she been driven on any other coast than that of an enemy, she would have been in perfect safety. The plaintiff had a verdict. (a)

The

(a) In moving a ship from one part of a harbour to another, it became necessary to send two of the crew on shore to make fast a new line, and to cast off a rope, by which the ship was made fast, those two men being immediately impressed and carried away, and not being allowed by the press-gang to cast off the rope in question, the ship in consequence thereof went ashore, and was lost. Mr. Justice Heath, Mr. Justice Rooke, and Mr. Justice Chambre, held this to be a loss by perils of the sea within the policy, contrary to the opinion of Lord Chief Justice Mansfield.

son, 12 East,

The same point was decided where a ship warranted free Lion v. Janfrom American condemnation, was driven on the American 648. shore, and there seized and condemned. The underwriters were discharged.

In cases where the loss is not total, but only partial, arising 1 Mag. 5 2. from a leak, from the stranding of the ship, or from the loss of 76. her masts, cables, or rigging, the insurers upon the cargo are liable to restore the value of all the damaged goods, and the underwriter upon the ship is also answerable for all the injury which she has sustained.

Comber

batch, 56.

In charter-parties, if the vessel freighted was robbed or 2 Roll.Abr. taken by pirates, that was held to be a loss within the meaning 248. pl. 10. of the words "6 perils of the sea.". It is also said, that the same rule of construction prevails as to policies of insurance. That possibly might, and would be the true construction upon those words; but as it is now the universal custom to insure against the attacks of pirates, by express words inserted in the policy, that question can now hardly arise.

Although the courts in this case, as in all others, will endeavour to give effect to this species of contract, by a liberal and equitable construction; 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 see that the loss, which is proved to have happened, is really one of those risks against which the underwriter has insured.

An action was brought upon a policy of insurance for the Gregson v. value of certain slaves insured by that policy. The declara- B.R. Easter, tion stated, "that by perils of the sea, contrary winds, cur- 23 G. 3. rents, and other misfortunes, the voyage was so much re"tarded, that a sufficient quantity of water did not remain "for the support of the slaves, and other people on board,

In an insurance upon goods where a ship is actually wrecked, part of the goods lost and part got on shore, but whilst on shore are destroyed and plundered by the inhabitants, so that no part of them again comes into the possession of the assured, Lord Chief Justice Gibbs was of opinion this was a loss by perils of the sea.

H 4

" and

Bondrett v.

Hentigg,

Hok, 149.