order, the party to be affected by such conviction, &c. seemed to be pointed out as the person to whom the appeal was meant to be limited; but it was contended that the word judgment was large enough to give it to the district surveyor. Lord ELLENBOROUGH, C. J. The appeal is given to the party aggrieved, therefore must not that apply to affirmative orders? The surveyor may apply to two other justices, who perhaps may entertain a different opinion. What grievance has this person more than every subject of the realm has from an infringement of the law? He is not the person to whom the right of appeal is given. Order or judgment means when something is ordered to be done, not a mere dismissal of a complaint. It all imports some act to be done under an order of justices, which may be a grievance to the party. BAYLEY, J. It must be an order or judgment against the party who appeals. Per Curiam, Rule refused. 1812. The KING against The Justices of MIDDLESEX. 1812. Wednesday, A policy of insurance on goods at and from London to the ship's discharging port or ports in the Baltic, with liberty to touch at any port or or any other purpose, does not warrant the assured, after having touched IN MELLISH and Another against ANDREWS. N assumpsit the plaintiffs declared in the first count upon a valuable policy of insurance on goods in the ship Minerva, “at and from London to the ship's discharging port or ports in the Baltic; with liberty to touch at any port or ports for orders, or any other purpose; with leave to carry, use, and exchange simulated papers, and ports for orders, to seek, join, and exchange convoys; warranted free from capture and seizure in the ship's port or ports of discharge." The policy also contained a clause "that it should be lawful for the said ship, &c. in that voyage to proceed and sail to, and touch and stay at, any ports or places whatsoever and wheresoever, and to load and unload goods, particularly in Sweden, without being deemed a deviation;" "at a premium of 12 guineas per cent., to return 61. per cent. for arrival:" and then they alleged the Baltic for a loss by seizure in the voyage and before its completion by persons unknown, and negatived a loss by capture backwards and and seizure in the ship's port or ports of discharge. at C. for orders, and gone on to and all ports wards and back wards, and forwards, it is otherwise. There was another count upon a second policy upon goods in the same ship, the interest in which was averred to be in different persons, and in this the insurance was "at and from London to any and all ports and places in the Baltic Sea, forwards and backwards, and backwards and forwards, from port to port and place to place, during the ship's whole stay and trade, and until her safe arrival at her port of final discharge; with liberty to sail under any flag, carry, use, and exchange simulated papers, &c. (including other liberties mentioned in the first policy.) Upon the second count the defendant defendant paid money into court. At the trial before Lord Ellenborough, C. J. at Guildhall, the material facts proved, which raised the question afterwards made, were these: The Minerva sailed with the goods insured from London in August 1810 under convoy to Gottenburgh, where she was detained with the convoy till the 30th of October, when she sailed to and arrived at the Swedish port of Carlshamn on the 1st of November, and there received orders from the agent for the ship to proceed to the Prussian port of Swinemunde for orders. She arrived off Swinemunde on the 8th of November, when the captain went on shore, and saw the ship's agent the next morning, who told him that it was impossible to enter the port, a French military force being then in the actual possession of it: and directed the captain to return back to Carlshamn, and there wait for orders. He accordingly returned thither on the 15th of November, and went on shore for orders (a), and while he was staying there under repair, his ship's papers were seized on the 6th of December by the Swedish government, and the ship and cargo taken possession of, and finally confiscated. Notice of abandonment was given; but no question was now made upon that point, and therefore it is unnecessary to state the circumstances of it. The plaintiffs obtained a verdict on both counts. In Easter term last Park moved for a new trial upon the ground that the captain was not warranted, after (a) This was at last agreed to be the fact, as found by the jury, though the captain afterwards, on cross-examination, had stated that he put into the port for shelter and to repair the damage which his ship bad met with at sea. Perhaps the whole of his evidence might be reconciled by stating that in fact he left Swinemunde to return off Carlshamn again to wait for orders, but having received damage in the way, when he came off Carlshamn, instead of waiting off the port for orders, he entered it to repair. 1812. MELLISH against ANDREWS. 1812. MELLISH against ANDREWS. having once touched at Carlshamn for orders, in returning back thither from Swinemunde, which port it appeared was meant to be the port of discharge, if the ship could with safety have gone into it. In the first policy, there were not any words to authorize such an irregular course; and even upon the second, which contained the words backwards and forwards, &c. they only meant until such time as the ship got to her port of destination; but when once she reached that, and thereby an option was made, the captain was no longer at liberty to return. The Court, however, refused the rule on the second policy, observing that the words backwards and forwards, &c. seemed to intend an inverted course, and that "until her safe arrival at her port of final discharge" meant, not where it might be intended that the ship should discharge, but where her last port of discharge should be; final being used in contradistinction to elective port of discharge. On the other policy, however, upon the authority of Beatson v. Haworth (a), which was mentioned, the Court granted the rule. The Solicitor-General and Puller shewed cause, and contended that the question had been left to the jury, whether the ship went to Swinemunde for orders, or for the purpose of her discharge, and the jury had found by their verdict that she only went thither for orders; in which case she was warranted in returning back to Carlshamn, under the liberty given her to touch at any port for orders, which meant any port before her arrival at her discharging port. In Beatson v. Haworth it was only decided that where a regular course of voyage is (a) 6 T. R. 531. marked marked out by the policy, such course must be attended to; but here no particular course is pointed out; it is from London to the ship's discharging port in the Baltic; which port the assured is to seek, and it may be the nearest or the most distant port. Therefore the rule which governed Beatson v. Haworth, and also the case of Hogg v. Horner (a), does not apply. Park, Topping, and Taddy, contrà, maintained that the ship having once touched at a port, and proceeded on wards, was not at liberty to retrace her way and return to the same port; if she might do so at all, she might for any number of times, and thus protract the liability of the underwriter to an indefinite period. It is true that a terminus is not fixed by the policy, and that so far the ship's destination was left uncertain; but that was reduced to certainty as soon as the port of her discharge was contemplated. From that time the captain was at liberty to touch at any ports for orders in the progress of his voyage to the destined port, but not to turn back for orders upon finding that port shut against him, which was not a peril insured against, according to Hadkinson v. Robinson (b). In Clason v. Simmons (c), it was held that the ports intended to be touched at must be taken in their order, and that it was not competent, after going to a more distant one first, to turn back to a nearer port; and there, as here, the insurance was general to the ship's port of discharge. Lord ELLENBOROUGH, C. J. On looking at my note it appears that I adopted the construction of the de (a) Park, Insur. 298., a. 4th edit. (c) Park, Insur. 4th edit. 298. a. (b) 3 B. & P. 388. fendant, 1812. MELLISH against ANDREWS. |