perils of the seas. The unusual and indefinite nature of the Plaintiff's undertaking distinguishes his case from that of an insurance on freight, where the ship is lost in the course of an ordinary fitting out. Blosset, in reply, denied that there was any difference in principle between freight and passage-money; both being paid as the hire of conveyance. The contract here was in part executed, and so far complete, that the Plaintiff might have sued the Company, if they had refused to perform their part of it. Then, as to the possibility of the Plaintiff losing his passage-money by such a refusal, or by other accident than those of the seas, that possibility existed in all cases of insurance what ever. DALLAS C. J. This case appears to me to resolve itself into three points. First, whether there was any contract; secondly, if there was a contract, whether any thing was done under that contract by the assured; thirdly, does the thing done, if it was done, constitute a part execution of the contract, and an inception of the risk? As to the first point, I entertain no doubt: but, with regard to this, let us go by steps. The whole contract rests on the correspondence; and here I am at a loss to draw any distinction between an insurance on freight and an insurance on goods. The question, therefore, comes at last to this, whether there was any contract to ship goods and a certain number of passengers. As to goods, the existence of the contract is admitted, and the Plaintiff has actually recovered for the freight of them: what then is the case as to passengers? The owner offers to receive a certain number of passengers, and his offer is referred to the government; a survey of his ship is ordered, and a report made, that she is fit for the purpose in view. In con sequence 1.820. TRUSCOTT บ. CHRISTIE. 1820. TRUSCOTT sequence of this, the owner is directed to put his ship in a proper state, and he does, at once, put himself in a train to commence his alterations; so that here is not CHRISTIE. Only a proposal, but an absolute acceptance of that proposal, and calculations made on the specified number of 200 men. Clearly, then, there was such a contract as the Plaintiff asserts; and the next question is, whether any thing was done under this contract? It appears, then, that the ship was in part prepared for passengers, and that the completion of the preparations was prevented by the perils of the seas. This was clearly something done under the contract; and there can be no doubt, that on the commencement of preparations under the contract, there was also an inception of the risk. It is urged that the alterations of the ship were not completed; but they were begun, and though none of the passengers were on board, there was an inception of the voyage. The thing required to be done, was partly done, taking it in the most scrupulous point of view it is not necessary, in every case, that the goods should be on board, to fix the insurer's liability, and this plainly appears from the decision in Horncastle v. Suart. The question, then, being whether or no there has been an inception of the risk, let us enquire what is an inception of the risk? That may be answered by the words of Lord Kenyon, in Thompson v. Taylor. "Here, as the Plaintiff had begun to perform his part of the contract, as he had done something under it, which, if matured, would have entitled him to his freight, I think he may recover on this policy, which was an insurance on that freight." This doctrine applies to the present case; here, something was done in part performance of the contract, which was not matured, because prevented by the perils of the seas; there was, therefore, a clear inception of the risk. The objection that there was nothing settled or definite in the con tract, tract, is completely answered by the case which has been referred to by my Brother Richardson. PARK J. I agree, that the cases ought not to be greatly extended, but we may certainly decide this without breaking in upon any authorities, particularly that of Forbes v. Aspinall. The Defendant's counsel asks for some agreement, on which the Plaintiff might have grounded a right of action, either in contract or tort; we do not proceed on the ground of the mode in which the Plaintiff might or might not have obtained redress for the breach of an agreement. The question is, was there a contract? In Thompson v. Taylor, (I am old enough to recollect all the cases cited, except Tonge v. Watts,) I thought, at the time, the case went too far; but the Court did not go on the ground that there must be a charter-party under seal; the question was, whether there was any contract, on which, but for the perils of the seas, the Plaintiff might have recovered. In the case of Parke v. Hebson, the contract was only deducible from letters. As to the alleged necessity of something being on board under the contract, in almost all the cases on this subject, the ship was lost before any thing was on board; it was thus in Horncastle v. Suart. In Atty v. Lindo, part of the cargo was on board, but not that part which was the subject of insurance. In Davidson v. Willasey, it is true, about half was on board. Without saying what sort of action the Plaintiff might have brought against the East India Company, it is sufficient to say, that this was a sort of engagement under which they would have been liable. What then prevented the Plaintiff from earning his passage-money? Loss by the perils of the sea. It is clear, that the Plaintiff had taken in water, and part of the materials which were necessary for his projected alteration; he had, therefore, begun to execute his part of the con 1820. TRUSCOTT ข. CHRISTIE. tract, 1820. TRUSCOTT V. CHRISTIE. tract, the completion of which would have entitled him to passage-money; that completion was prevented by the perils of the seas, and, therefore, he is entitled to his insurance. BURROUGH J. If this contract had been bona fide completed, it is clear the Plaintiff would have had a claim against the East India Company. In consequence of their proposals, he begins an alteration in his ship, and, if the Company had failed in their engagements, they must have paid damages; nay, the Plaintiff would have been liable to them if he had failed, and he could not have entered into any engagement for the freight of other goods. This shows, that the contract was perfect in all its parts. It makes no difference whether the contract was by charter-party or otherwise; it is sufficient that there was a contract. The word charterparty frequently misleads, and is apt to convey the idea of something extraordinary; but there is no magic in the word charter-party, and an agreement of any sort is equally valid. If, then, there was a contract complete in all its parts, if every thing was done on the Plaintiff's part, up to the time of the loss, it would be the hardest case if he could not recover. As to the difference between freight and passage-money, what is it? In the one case, the thing to be carried is inanimate, and in the other it is alive. I can see no other difference. RICHARDSON J. This is a This is a policy at and from Madras on freight and passage-money, for 5000l. The jury find a verdict for 1047., being the Defendant's proportion of the loss insured against; but the verdict is absolute for 481., and conditional as to 561. The question, therefore, is, whether the Plaintiff is entitled to recover 561. in addition to the 487. It is unnecessary to consider whether the policy can be opened or the verdict verdict disturbed; the only question is, whether the Defendant can recover the 56l. That depends on the question, whether there was a contract for the shipping of passengers, the profit of which the Plaintiff lost by perils of the seas; and I think there was such a contract. The ship is hired to carry fifty-six invalids; then, subject to certain alterations proposed by the Company, and acceded to by the Plaintiff, there is a further agreement for 200 invalids. Then follows a letter, communicating the result of the survey, and an assurance is given from the government of the shipment of these 200 men; and no question was made at the trial, as to the sufficiency of the vessel to convey these 200 men. The facts being thus before us, we must take it for granted that the ship would carry 200 passengers; that being so, the Company was bound to put them on board; and the only remaining question is, whether there was a subsisting contract under which the party could have recovered, but for its interruption by the perils of the sea. That there is no magic in a contract by charter-party, is clear, from the case of Parke v. Hebson. But, it is urged, there could not have been a contract, because something was to be done by the Plaintiff before the Company would send the 200 men on board, and the ship was to be fitted up in a particular manner. In most charter-parties, however, it is stipulated, that ⚫ the owner shall fit up the ship in some way required by the charterer. Surely, it would be no objection to the recovering on an insurance of freight, that the ship was lost before she was completely rigged and fitted for sea. Suppose a charterer were to stipulate for additional bulkheads or partitions for a cargo of a particular description, it could be no defence to the insurer at and from the place of fitting out, that the ship was lost before the bulkheads were completed. As to the ob jection, 1820. TRUSCOTT บ. CHRISTIE. |