ship quits her moorings, and removes only to a short distance, being quite ready to proceed upon her voyage, and is by some subsequent occurrence detained, that is, nevertheless, a sailing; it is otherwise, however, if, at the time when she quits her moorings and hoists her sails, she is not in a condition for completing her voyageb; and no distinction can be drawn between taking in more ballast and receiving part of the cargo. The word "sailing" is not confined to the mere act of hoisting the sails; the fair question in these cases is, whether, at the time of the loss, the voyage can be said to have commenced. A ship, which was insured at and from Jamaica to London, warranted to have sailed on or before a particular day, with a return of premium in case of convoye, sailed before the day from the port of her lading, with all her cargo and clearances on board, to the usual place of rendezvous at another part of the island, in order to join the convoy, which then lay ready, where she arrived in safety, but was detained there by an embargo beyond the day. It was holden, that although the place of rendezvous was out of the direct course of the voyage, yet as the ship, when she sailed from the port of lading, had not any view or object but to make the best of her way to England, and as she did not go to the place of rendezvous for any purpose independent of the immediate prosecution of her voyage, the voyage began from the port of lading, and consequently the warranty had been complied with. A French ship was insured "at and from Guadaloupe to Havre," warranted to sail on or before a particular day. The ship took in her complete lading, and all her clearances, at Point-a-Pitre, and sailed thence before the day for Basseterre, a condition having been inserted in one of the clearances, that the ship should pass that way to take the orders of government, and the captain also expecting, in consequence of a notice which had been given by his governor, that there would be a convoy at that place. It appeared that the captain had paid an extra fee in order to procure his clearances, that he might take the benefit of the convoy. The ship arrived at Basseterre two months before the day on which she was warranted to sail, and was detained there by the governor until after the day. It was proved that Basseterre was in the direct course of the voyage. Under these circumstances, it b Per Ld. Tenterden, C. J. Pittegrew v. Pringle, 3 B. and Ad. 520, 1. Graham v. Barras, 5 B. and Ad. 1011. 3 Nev. and Mann. 125. S. P. c Per Park, J. in Pittegrew v. Pringle, 3 B. and Ad. 522. d Per Denman, C. J. delivering judgment on error in Exch. Chr., Cockrane v. Fisher, 1 Cr. M. and R. 818. 5 Tyrw. 501, 2. e Bond v. Nutt, Cowp. 601. was holden, that there had been a bona fide and complete inception of the voyage, on the day the ship sailed from Point-a-Pitre, and consequently that the warranty had been complied with. Under a warranty to depart on or before a particular day, it is necessary not only that the ship should set sail on the voyage, but also, that she should be out of the port on or before the daye. To "sail" is to sail on the voyage. To "depart" is to depart from some particular place. Goods were insured at and from Demerara to London in ship or ships warranted to sail from Demerara on or before the 1st of August, 1823. Small ships take in and discharge the whole of their cargoes in the river of Demerara; but there is a shoal off the coast, about ten miles out at sea, and large ships usually discharge and take in part of their cargoes on the outside of the shoal. Goods covered by the policy were laden on board a small vessel that completed her cargo in the river, and on the 1st of August, the captain having obtained his clearance, set sail, proceeded down the river, and about two miles out to sea, and then anchored, the tide being low. On the 3rd of August he crossed the shoal, and on the 8th the vessel was lost by perils of the sea: it was holdeng, that the vessel sailed from Demerara on the 1st of August, within the meaning of the policy. Where a license is granted for a voyage to a hostile country, to continue in force till a given day, if the voyage is bond fide begun before that day, it continues to be protected by the license though delayed beyond the day by stress of weather or other accident over which the assured have no control. So where there is a policy "at and from," if the ship has her cargo on board and is ready to sail before the day when the license expires, although she is detained in port till after the day by contrary winds, the policy remains validi. 2. Safety of Ship at a particular Time.-Goods were insured from the lading of them on board a certain ship, "lost or not lost," and at the bottom of the policy was added "warranted well on a particular day." It appeared that the defendant underwrote the policy in the afternoon of that day, and that the ship was lost about eight o'clock in the morning of the same day. It was holdenk, that the warranty did not d Thellusson v. Fergusson, 1 Doug. 361. e Moir v. the Royal Exchange Assurance, 3 M. and S. 461. f Moir v. The Royal Exchange Assurance, 6 Taunt. 245. g Lang and others, v. Anderdon, 3 B. h Groning v. Crockett, 3 Campb. 83. mean that the ship was well at the time when the defendant subscribed the policy, but at any time on that day, and consequently that it had been complied with. Action on policy of insurance against fire on ship Hero', for one month, on the terms that the ship should be safe moored in the harbour of Portsmouth during the period for which the insurance was made; the ship was accidentally burned within that time. It appeared in evidence, that the ship was first moored off the beach, in order to clear her bottom; she was then removed to Hardway, and lastly was moored at March's wharf, in order the more conveniently to take in her cargo, but had never been taken out of the harbour. It was insisted, for the defendant, that the removing the ship from her moorings at one place to the other, was a discontinuance of the risk: so also the laying her down on the beach to clear her bottom. But, per Lord Ellenborough, C. J., "where a vessel is only removed from one part of the harbour to the other, for the more convenient purpose of repairs, or of taking in her cargo, but does not go beyond the bounds of the harbour, and is safely moored at the different parts of the harbour, when she is so removed according to the policy, it is not such an act as will avoid the policy." Verdict for plaintiff. "When a brokerm proposes a policy to an underwriter, on a ship at and from a certain place, it imports either that the ship is there at the time, or shortly will be there." A delay in the arrival of the vessel at the place where the risk is to attach, alters the risk. 3. To depart with Convoy.-The next species of warranty which falls under consideration, is a warranty that the ship insured shall sail or depart with convoy, by which term is to be understood "a naval force under the command of a person appointed by the government of the country, to which the vessel insured belongs." The form of expression, as to this warranty, is different in different policies; in some, that the ship shall depart with convoy; in others, that she shall depart with convoy for the voyage. In substance, however, these expressions are the same; for it has been solemnly decided, that, although the words of the policy are merely "to depart with convoy," yet those words must be understood to mean that the ship shall depart with convoy for the voyage, 1 Clarke v. Westmore, London sittings, B. R. 25 May, 1807. m Per Ellenborough, C. J. Hull v. Cooper, 14 East, 479, cited by Tin VOL. II. Y dal, C. J. Mount v. Larkins, 8 Bing. 123. recognized in Freeman v. Taylor, 8 Bingh. 139. as much as if the words "for the voyage" had been added". If a ship does not sail with the convoy appointed by government, it is not a sailing with convoy within the terms of the warranty; hence the protection of a ship of war accidentally bound on the same voyage, although discharging the office of convoy, is not a convoy within the meaning of the warranty; but a convoy appointed by the admiral commanding in chief upon a foreign station, will be considered as a convoy appointed by government. It may be laid down also, as a general rule, that a warranty to depart with convoy is not complied with, unless sailing instructions are obtained before the ship leaves the place of rendezvous, if by due diligence of the master they can be obtained (42). When the policy is silent as to the place from which the vessel is to depart with convoy, the usage of merchants puts a construction on it, and the warranty must be understood to mean, that the ship shall sail with convoy from the place of general rendezvous, or that place where convoys are to be had: as, if a vessel be insured from London to the East Indies, warranted to depart with convoy, and the ship sail with convoy from the Downs, it is a fulfilment of the warranty (43). It is not necessary, that the n Per Holt, C.J. and the greater part of p S. C. See also Audley v. Duff, 2 Bos. and Pul. 111. q Lethulier's case, Salk. 443. but Holt, C. J. contra. Gordon v. Morley, Str. 1265, per Lee, C. J. (42) "The value of a convoy appointed by government, in a great measure arises from its taking the ships under control, as well as under protection. But that control does not commence until sailing instructions have been obtained, nor can it be enforced otherwise than by their means. Indeed the reason of that rule, which requires that the convoy should be appointed by government, shews the necessity of having sailing instructions, since without them the ship does not stand in that relation, or under those circumstances in which she can take the full benefit of the government convoy." Per Eldon, C. J. in Anderson v. Pitcher, 2 Bos. & Pul. 169. (43) No convoy ever sails from the port of London. Abbott's Law relative to Merchant Ships and Seamen, 5th ed. p. 227. Occasional convoys are appointed by the admiral on the station to sail from the Downs to Portsmouth, &c.; but such convoys are never appointed by the admiralty. Ships sailing from foreign ports are not within the convoy act, unless there are persons at those ports, vessel should in all cases sail with convoy bound precisely to the place of her destination". Whether the convoy be sufficient must depend on the usage of trade and the orders of government; and it is the province of the jury to determine, whether, under the circumstances, the warranty has been satisfied (44). It sometimes happens, that the force first appointed is to accompany the ships only for a part of their voyage, and to be succeeded by another; at other times a small force is detached from the main body, to bring them up to a particular point; if a vessel sail under the protection of a force thus appointedt or detached", the warranty is complied with. Although the terms of this warranty do not express it, yet it is essentially necessary, that the ship should not only depart, but also continue with the convoy until the end of the voyage, unless she be prevented by absolute necessity. Case on a policy of insurance on the ship Speedwell, from London to Lisbon, warranted to depart from England with convoy. The ship sailed from London in December, and arrived at Spithead, (the place where the Lisbon convoy was to be met with,) whence she sailed on the 25th December, with the convoy. On 26th December a storm arose, which separated her from her convoy, and rendered her so leaky, that she was obliged to sail for Plymouth, where she arrived on the 28th December. Having been refitted and made a tight ship, as was supposed, she sailed again on the 13th of February following, but without convoy. A few days after, she encountered another violent storm, and on 19th February, she was r D'Eguino v. Bewicke, 2 H. Bl. 551. s Abbott, 229. t Smith v. Readshaw, Park, ch. 18. p. 510. De Garay v. Clagget, ib. 511. u Manning v. Gist, Marsh, 367. 2nd edit. S. C. more fully reported, 3 Doug. 74. Audley v. Duff, 2 Bos. & Pul. 111. x Morrice v. Dillon, London Sittings after M. T. 22 G. 2. coram Lee, C. J. MSS. authorized to grant convoy licenses. And it is not sufficient to shew that convoys have been actually appointed from those ports, but proof must be given that there are persons stationed there, legally authorized by the admiralty to appoint them*. (44) "It has always been understood, that provisions for a departure with convoy have relation to the custom of trade, and the orders of government, and ought therefore to receive a liberal construction." Per Heath, J. in Audley v. Duff, 2 Bos. and Pul. 115. * D'Aguilar v. Tobin, 1 Holt's N. P. C. 185. |