1820. TRUSCOTT V. CHRISTIE. 1818, the Plaintiff tendered to the president and board of trade the Cornwall (naming her burden per register), to receive any freight for England at 81. per ton, and to carry 40 invalids at 281. per man, the ship finding them with provisions according to the established regulations for victualling. By a letter, dated 12th October, 1818, the secretary of the board of trade informed the Plaintiff, that the board agreed to pay the freight above mentioned for such quantity of goods as they might wish to lade in the Cornwall; and to recommend to government, that invalids should be embarked in her for England at the rate above mentioned, provided there were men ready to embark, and provided the accommodation allotted for them should be approved by the military surveying officer of government. Then followed a letter, dated the 12th October, from the surveyor, (signed also by the deputy master attendant,) stating, that he had found the Cornwall a fit vessel to receive the Company's cargo, and that there was also a space allotted for 50 invalids. By a letter, dated the 13th October, 1818, addressed to the president and board of trade, the Plaintiff accepted the terms for tonnage stated in the letter of the 12th. By a letter, dated 19th October, 1818, addressed to the same parties, the Plaintiff stated, that he had offered accommodation for 86 invalids on board the Cornwall; but that it had occurred to him, that by giving an additional deck to the ship he should be enabled to increase the number to 200, or such number as after survey might be considered expedient, and, that he would take the additional number on terms similar to what he before proposed. By a letter, dated the same day, the deputy master attendant informed the board that he had consulted the officer by whom the ship Cornwall was surveyed, who had informed the deputy master that he was of opinion that the ship would accommodate the number of men mentioned in the Plaintiff's last letter; and added, that he (the deputy master) saw no reason why the deck should not be laid in ten or fifteen days. By a letter, dated 22d October, 1818, addressed to the Plaintiff, he was informed that the governor had approved of undertaking the projected alteration in the Cornwall, on the Plaintiff's own responsibility; an assurance from government was added, that such a proportion of invalids, &c. to the extent of 200 men, would be embarked eventually, as, on the usual survey, the ship should be found capable of receiving with convenience for the voyage to England, and he was requested to give two days' notice to the board, of the time when the ship would be ready for the survey. 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, (she could have carried about 80 tons more, besides passengers,) water had been shipped for 100 invalids, besides the ship's company, but no invalids or passengers were on board, nor any provisions for them, other than the water. The alteration in the ship, mentioned in the Plaintiff's letter of October 19th, had been commenced but was not completed. The jury, being directed to find the amount of the loss separately, in respect of the freight and of the passagemoney, found, that the ship could have carried goods, the freight of which would have amounted in all to 22001.; and, that the ship would, besides, have carried invalids, on which a profit would have accrued to the amount of 1400l. The verdict was found absolutely, A a 4 for 1820. TRUSCOTT V. CHRISTIE 1820. TRUSCOTT v. CHRISTIE. for the sum of 481., being the Defendant's proportion of the sum of 22001. beyond the sum he paid into court, and, conditionally, for the sum of 56l., being the Defendant's proportion of the said sum of 1400l. 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, 1st, Whether, the policy being valued, the valuation could be opened? 2d, Whether the Plaintiff was entitled to recover the sum of 567., being the Defendant's proportion of the sum of 14001. for the passagemoney? Blosset Serjt., for the Plaintiff, being directed by the Court to apply himself to the question respecting the passage-money, proceeded to comment on the facts of the case, and to show, that a contract existed between the Plaintiff and the East India Company for the conveyance of passengers, which, but for the loss of the ship by the perils of the seas, the Plaintiff might have called on the Company to fulfil; and he urged that, such a contract having existed, or an understanding tantamount to a contract, the Plaintiff was entitled to recover; the fulfilment of the contract and the gain consequent upon it having been interrupted by the perils of the seas. Taddy Serjt. (Vaughan Serjt. was with him) for the Defendant. There was no contract as to passagemoney; for, at the time the contract was made for the freight of goods, the ship was not in a condition to receive passengers, and the utmost that the correspondence with the East India Company's secretary amounts to, is, that, if the Plaintiff would make certain additions to his ship, the Company would recommend him to government for the passage of invalids. The men never were embarked, embarked, the ship never was prepared to receive them, and the correspondence refers only to a projected alteration. Here was no agreement for the breach of which the Plaintiff could have sued in contract or in tort. Besides this, the East India Company, as a corporate body, could not enter into a contract, except under seal. At all events, here was no inception of the risk. There is a wide difference between an insurance on goods, and an insurance on freight. With respect to an insurance on goods, there is an inception of risk as soon as any of them are put on board, because from that moment the ship-owner begins to earn freight; but there can be no inception of risk in an insurance on freight, unless the contract for freight be in all respects ascertained and completed. Thompson v. Taylor (a), Horncastle v. Suart (b), Atty v. Lindo (c), and Davidson v. Willasey (d), are all cases of ships chartered by instruments, under seal, for an entire voyage, consisting of different parts, of which one part at least had been performed, or of which entire voyage there had been an inception. Tonge v. Watts (e), Forbes v. Cowie (f), Sellar v. M'Vicar (g), and Forbes v. Aspinall (h), are cases in point for the Defendant; in each there was an engagement for goods to be carried home, but, as the goods were not actually on board, it was holden, there could be no recovery for freight in that respect. There is a distinction, too, between passagemoney and freight; and, if the Plaintiff cannot recover for freight, still less can he recover for passage-money: the quantity of goods for which freight is to be earned, is always ascertainable before hand; here, not a single passenger had gone on board, and so far from there being any definite or completed contract, it is impossible to (a) 6 T. R. 478. (c) 1 N. R. 236. (d) 1 M.& S. 313. (e) 2 Str. 1251. ascertain 1820. TRUSCOTT V. CHRISTIE. 1820. TRUSCOTT ข. CHRISTIE ascertain how many invalids the Company intended to ship. No case has yet determined that a party can recover under such circumstances, unless there is a contract, by which the amount to be earned is clearly ascertained; and the doctrine hitherto laid down, ought not to be extended. [Richardson J. The case of Parke v. Hebson, (not yet reported,) was an action for insurance on freight; there, so far from there being any one complete or definite contract for the whole amount of the freight, the ship was what is termed a seeking ship, and was to complete its lading at a number of different places. Having part of her cargo on board, she was lost at Jamaica, in passing from one port to another to complete her cargo. The Plaintiff contended, that he was entitled to recover insurance on freight for that part of the intended cargo, which was not on board at the time of the loss, as well as for that which was on board, and he produced several letters from merchants and plantationowners, respecting the intended shipments. There was no contract for any specific freight, but the party was to be paid according to the terms usual in that trade, which are well understood. The Court thought that the Plaintiff might recover under the principle of Thompson v. Taylor.] In Parke v. Hebson, the quantity of goods to be shipped appearing from the letters produced, the amount of freight was established by the usual terms of the trade; but here, as there are no means of ascertaining whether the Plaintiff would ever have completed the alteration of his ship,—no means of ascertaining what number of invalids the Company might have sent on board, it is impossible to estimate what loss the Plaintiff might have sustained. If the ship had not perished by the perils of the sea, the passage-money might have been lost by other means; the ship might never have been fitted to receive the passengers; so that if the insurer pays, he will be held to have insured against other risks besides the |