1812. NONNEN against KETTLEWELL. strued to extend to vessels trading between the ports of Sweden and Swedish Pomerania. These cases were first argued in the last term by Courtenay, jun. for the plaintiff, and Spankie for the defendants; and again on a former day in this term by Park for the plaintiff, and Marshall, Serjt. for the defendants. Four objections were taken on the part of the defendants, 1st, That the policy never attached upon the subject-matter of the insurance, which was on goods at and from Landscrona to Wolgast; whereas the goods in question were loaded on board before the ship arrived at Landscrona; which it was contended brought the case within the objection which prevailed in Spitta v. Woodman (a). 2dly, That the representation of the ship and cargo being Swedish and neutral property was negatived by the French sentence of condemnation: and Christie v. Secretan (b), was cited. 3dly, That the ship was not duly documented for the purpose of its protection; for which Bell v. Carstairs (c) was cited. 4thly, That the voyage, being in contravention of the order in council of the 7th of January 1807, could not lawfully be insured by a British underwriter. The three last points were disposed of during the argument, and over-ruled by the Court. As to the second, the representation was coupled with a refusal to warrant, which shewed the intention to exclude it from the contract. As to the third, it arose merely out of a French ordinance, which did not bind Sweden. And as to Bell v. Carstairs, it was observed that the Court did not lay it down as a necessary condition to an insurance that every ship must be properly documented; but only that if a loss happened for want of it, the under(a) 2 Taunt. 416. (b) 8 Term. Rep. 192. (c) 14 East, 374. writer 1812. NONNEN KETTLEWELL. writer was discharged. To the last point it was answered, that in order to bring the voyage insured in contravention with the order in council two things must against concur, exclusion of the British flag from the foreign port, and that exclusion by means of French influence; the latter of which was here negatived by the jury. The word allies meant co-belligerents, which was not the character of Sweden at that time. Upon the first point, which was reserved by the Court for further consideration, the cases of Robertson v. French (a), and Hodgson v. Richardson (b), and the case of the William (c), where other cases are collected, were cited in addition to Spitta v. Woodman. The principal arguments upon this point were adverted to in the judgment. Lord ELLENBOROUGH, C. J. The first of these causes was an action upon a policy on the ship the Husaren, effected on ship and goods: the second, upon the Tre Systrar, on ship and goods also: in both the voyage was at and from Landscrona to Wolgast, and the risk on goods was declared to be at and from the loading thereof aboard the ship. In both instances the goods had been shipped at Gottenburgh on board these vessels respectively some months before the voyage insured commenced; but in each instance a part of the cargo was taken out of the ship's hold, and landed on the quay, and replaced in the ship and a sufficient quantity is stated to have been taken out to enable "the custom-house officers at Landscrona to inspect and examine the whole cargo on board;" the duties of which were paid. This, therefore, was an actual reloading at Landscrona of so much of the cargo as was thought necessary to be taken out in order to ascertain (b) 1 Blac. 463. (c) 5 Rob. 385. (a) 4 East, 130. the 1812. NONNEN the quality of the whole, and to adjust the amount of the duties to be paid in respect of the whole, and which against were paid for the whole accordingly. It is an actual KETTLEWELL. unloading and reloading of part, and a virtual reloading of the whole, as far as unloading and reloading were necessary for the purpose of ascertaining and paying the duties at that port, which, according to the policy, is to be regarded as the loading port. This circumstance, we think, distinguishes the present case from Spitta v. Woodman, in C. P. 2 Taunt. 416 (a), which authority we followed S. C. 2 Taunt. 416. (a) The following note of that case was referred to in the argument: SPITTA and Others v. WOODMAN.-Goods were insured "at and from Gottenburgh to the ship's port of discharge in the Baltic, not higher than Riga; beginning the adventure upon the said goods from the loading thereof on board the said ship," without saying where. The ship was an American, and having received on board at London a cargo of sugar, coffee, and indigo, the goods insured, sailed from thence to Gottenburgh, from whence, without landing any part of the cargo, she sailed to Pillau Roads, where she was captured. It appeared that the defendant was well aware that the goods insured were the same that had been shipped at London; having himself been an insurer upon them from thence to Gottenburgh: one question was, that the loading of goods mentioned in the policy must mean a loading thereof at Gottenburgh, that being the only port mentioned in the policy where the risk could commence. But as the goods were laden in London, either the risk never attached, or if the declaration meant to aver a loading at Gottenburgh, there was a fatal variance. Upon this objection Lord C. J. Mansfield, delivering the judgment of the Court, said it must be intended from the words of the policy that the goods were loaded at Gottenburgh: for if that were not the true interpretation, and the adventure were to commence from the loading, a risk would be incurred which was not in the policy, namely, from London to Gottenburgh. But it is stated in the case, that a part of the goods were taken out of the ship's hold, and landed on the quay, and replaced in the ship. That a sufficient quantity was taken out to enable the officers at Landscrona to inspect the whole cargo on board: but the quantity taken out of the hold needed not to be very great to enable the officers to inspect the whole cargo, and a great part of this would of course be kept on the ship's deck till the inspection took place. It would, therefore, be a mere mockery to call this a load ing followed in Homeyer v. Lushington, in Hilary term last. Indeed, if the circumstance had existed in the case of Spitta v. Woodman which exists in this, it is to be supposed, from what fell from Lord C. J. Mansfield, as reported in 2 Taunt. 423., that it would have received a different decision. In that case it was expressly stated, "that the cargo was not taken out and reladen at Gottenburgh." It was argued by the defendant's counsel, that if the goods had been barely landed and reshipped at Gottenburgh, so as to entitle the vessel to have had real papers from that port, perhaps the Court might have supported the plaintiff's claim. Lord C. J. Mansfield says, "I think with you the goods might have been landed and reshipped; and that is not mere form; for in a certain degree the parties can judge from the outside of the packages whether up to that time any damage has been sustained, and without such examination, if an average loss should arise, it would be almost impossible to determine whether it was sustained before the ship's arrival at Gottenburgh, or afterwards." In this case it will be recollected that a more perfect examination of the condition of the goods than what took place was immaterial for the purpose of ascertaining whether any damage had been sustained by the goods before the ship's arrival, inasmuch as the policy is free of average. The period of time from which the responsibility of the underwriter is to commence as to goods, and to which the ing at Landscrona. At all events, supposing a part shipped at Landscrona, then, as goods would be shipped at two places, and the quantity at each not at all ascertained, the commencement of the risk in the policy would be too uncertain if described from the loading thereof. The very port of loading, when discovered, may in many cases decide the question of prize or not. The cargo might have suffered material injury from London to Gottenburgh. policy 1812. NONNEN against KETTLEWELL. 1812. NONNEN against policy refers for that purpose, is as well fixed by this partial unloading and reloading at Landscrona, as by a more perfect and entire shipment there; it is sufficient KETTLEWELL for the purpose of supplying a date, which is the only object of the reference in question. All the information which was wanting in the case of Hodgson v. Richardson, 2 Blac. 463., and which induced the decision of the Court in that case, was fully communicated here in respect to the place of original shipment; so that any actual fraud on the ground of non-communication is out of the question here; as indeed it was in Spitta v. Woodman: though that circumstance was not sufficient to induce the Court to come to a conclusion, which, upon the same premises, it must be supposed that Lord Mansfield and the other Judges who decided Hodgson v. Richardson, would have come to. The latter point is, however, rather a matter of speculative curiosity than of certainty, as the precise case never came before the Judges last referred to. All the other grounds of defence urged in argument on the part of the defendant were disposed of by the Court as insufficient in the course of the argument. The point above mentioned, as to the ship's being loaded before her arrival at Landscrona, and the effect of that circumstance upon the judgment to be given in this case, was the only point which the Court reserved for its consideration, as to which, for the reasons given, we are of opinion that the objection urged on this ground is not sufficient to prevent the plaintiff from having the benefit of his verdict. Judgment for the Plaintiff. RANKIN |