a party-the parties to that charter being the | owners of the ship and De Mattos-I am of opinion that the present plt. cannot sue for any breach of the charter-party per se. The plt., however, sues as owner of the cargo and holder of the bills of lading. He is entitled to sue upon the contract contained in the bill of lading, and, so far as that includes stipulations in the charter, he is entitled to sue upon them, not as violations of the contract in the charter, but as breaches of the contract in the bill of lading. The plt. claims that the contract of the bill of lading incorporates all of the charter-party that remained to be carried out, and that, looking to all the circumstances of the case, this must be taken to have been the intent of the parties. The contract of the bill of lading was made by the master, as the agent for the shipowner, with the charterer's agent, and with the charterparty before the eyes of the contracting parties, and referred to expressly in the bill of lading. The freight was the freight payable as freight by charter-party, and that was lump freight, and it is said lump freight implies lump cargo, and therefore full freight is payable without any deductions. This view, however, seems to me to be unsustainable. [The learned Judge then referred to the case of Chappell v. Comfort, cited above, and said:] Now, applying these observations to the present case, what is the reference in the bill of lading to the charter-party? The bill of lading declares that the vessel is bound for Cowes, Queenstown or Falmouth, for orders as per charterparty. This includes what is omitted in the bill of lading, but inserted in the charter "at Master's option," and it includes the delivery at all the ports mentioned in the charter. Again, the bill of lading states the goods are to be delivered, the freight payable as per charter-party. I think that these expressions include everything mentioned in the charter-party in relation to freight. There may be great difficulty in ascertaining what that freight is, but the principles by which it must be ascertained are the stipulations contained in the charter. The first stipulation is, that 11,2507, lump be paid if ordered to the United Kingdom, Havre or Bordeaux, 11,6257. if ordered to Antwerp or Marseilles. As to the next clause, the master guarantees to carry 3000 tons dead weight of cargo upon a draught of twenty-six feet water, or to forfeit freight in proportion for deficiency. I do not say that the holder of the bill of lading could bring an action upon the guarantee, but I do say, that in calculating the freight to be paid, a deduction ought to be made in proportion to the deficiency. I do not say that the holder of the bill of lading could sue on the stipulation for the loading at Rangoon, as the freighter or his agents might consider safe. Under the existing circumstances, the amount due for freight can only be ascertained through the medium of a complicated account of advances and disbursements. The question then arises as to the power of the master to detain the cargo for freight and average until any amount demanded by him, however exorbitant, be complied with, and to require that the holder of the bill of lading in this case shall make a tender to him of the proper amount of freight andaverage, he, the master, refusing to give any information to him as to the circumstances indispensably necessary to ascertain the amount of freight and average due, and which cannot be in the knowledge of the holder of the bill of lading, and which are within the master's knowledge. That this is a breach of duty under the statute I cannot doubt; and the consequence is that a loss has accrued, by the default of the master to the holder of the bill of lading. Objection was taken to the 11th article before mentioned, and the Salacia was cited. That case was different from the present. The resent action is not to reduce the freight, for which [ADM. there is a lien, by the value of the goods improperly sold; but it is, in substance, an action for breach of contract in non-delivery and short delivery of cargo as per bill of lading. It is said that, even if the alleged breaches are breaches of the contract, the plt. is not in a position to sue upon them. It is urged that he is not entitled to delivery of the goods; he may never be so; until he is, he cannot claim for damage done to the goods to be delivered. It is true that the deft. has a lien upon the goods for his freight, and the plt. cannot reduce this freight by setting off any damage done to his goods; and if this be so, it may be that at common law the plt. cannot bring an action of trover for the goods, because trover requires in a plt. the right, not only of property, but of possession, and this cannot exist with a hostile lien; and I think upon this point reference was made to Bloxam v. Sanders (cited above). But I think the same case decides, that though trover does not lie, a special action will lie for damages on the contract, and I think, therefore, the plt. can sue for damage on account of any injury done to his goods by being improperly thrown overboard, for sale, or unloading, or wharfing. He can also sue for damages caused by the delay, from the deft. making improper claims, and refusing to specify particulars. Lastly, he can sue for damages for non-delivery. All that is necessary to enable the plt. to recover is, that he should be willing to perform his part of the contract. The plt. has, indeed, neither paid the freight nor made a tender; but the petition alleges that all tender was waived, aud that the plt. was ready and willing to pay what was fair. The result is, that the petition must be reformed by striking out all those articles or paragraphs which purport to allege a breach of the charter-party-that is, of all those stipulations in the charter-party not imported into the bill of lading; that all which imports a breach of the bill of lading, as I have now interpreted it, shall remain, and also all that shows a damage or loss occasioned by the alleged misconduct of the master, whether it be called breach of duty or otherwise. Tuesday, Feb. 16, 1864. THE SKIPWITH. Claim for repairs to a vessel-Subsequent mortgagee liable-Maritime lien-Amendment. A subsequent mortgagee is liable for repairs previously done to the mortgaged vessel. The institution of a suit as a cause of necessaries does not estop the plt. from pleading and proving subsequently that his claim is in respect of repairs; but the title of the cause must be amended. Quare, whether a claim for repairs constitutes a maritime lien? The schooner Skipwith being under arrest in a suit for wages, this action was entered as a cause of necessaries on behalf of the plts. Charles Hill and others, of Cardiff, Glamorganshire, shipbuilders. Their claim was in fact for repairs done to the vessel in July 1863. The deft. was an assignee of a mortgagee, the mortgage having been transferred to him on the 17th Sept. 1863. The answer stated (amongst other things) that the repairs were done on the personal responsibility of the owner, that the vessel belongs to the port of London, and at the time of the institution of the cause her owner resided at Swansea. The V. Lushington, for the plts., moved the court to reject the material portions of the answer. action is properly for repairs under sect. 4 of the Admiralty Court Act 1861. There is a mistake in the præcipe, and the action has consequently been entered as one of necessaries; but that does not ADM.] THE PACIFIC. [ADM.. conclude the plt. Besides, repairs are necessaries. | that the ship and proceeds were under the arrest The mortgagee can be in no better position than the owner (The Caledonia, Swab. 19), and the plt.'s claim would therefore take precedence. Clarkson for deft.-The cause was entered as one of necessaries, and by that entry the plt. is bound. He must therefore recover, if at all, under sect. 5 of the Admiralty Court Act 1861; but then he cannot recover under that section, as the owner is domiciled in Wales. The following are the sections of the Act of Parliament referred to: Sect. 4. The High Court of Admiralty shall have jurisdiction over any claim for the building, equipping, or repairing of any ship, if at the time of the institution of the cause the ship or the proceeds thereof are under arrest of the court. Sect. 5. The High Court of Admiralty shall have jurisdiction over any claim for necessaries supplied to any ship elsewhere than in the port to which the ship belongs, unless it is shown to the satisfaction of the court, that at the time of the institution of the cause any owner or part owner of the ship is domiciled in England or Wales, provided always, that if in any such cause the plt. do not recover twenty pounds he shall not be entitled to any costs, charges, or expenses incurred by him therein, unless the judge shall certify that the cause was a fit one to be tried in the said court. DR. LUSHINGTON.-There might be many circumstances which would raise questions of considerable difficulty with regard to the construction of the 4th and also of the 5th section of the Admiralty Court Act 1861, but I cannot say that upon the present occassion I feel much embarrassed. Now the facts of the case are these--that these articles, whether you call them repairs to the vessel, or whether you call them necessaries-were done and furnished in the month of July last, and the plaintiff in this case took a transfer of the mortgage on the 17th Sept. following. He, therefore, in point of time, is clearly posterior to the original demand. The suit is instituted as a cause of necessaries, and if it had happened that the owner of this vessel had not been resident in England, I am strongly inclined to think it would have been well so instituted, for I think that between the repairs which are mentioned in this account and necessaries in the general explanation of the term, there is very little distinction to be found. But, however, it appears that the suit was instituted as a cause of necessaries, and the first is a technical objection, whether the court under these circumstances ought, if I may use the expression, to non-suit the parties, or whether it ought not to allow some means in order to remedy that which is a mere technical accident. Reference has been made to the past practice of this court, and I have no doubt that Mr. Clarkson is right when he says it has always been customary to state that a cause was of this or that description, but there never was a case to my knowledge, in which, in consequence of an erroneous description in the title of the cause, the person who was unfortunately guilty of that mistake, by negligence or otherwise, was estopped from suing in this court. There has been no such case, and I apprehend the court has ample means of reforming that difficulty, supposing it to occur; for I should have nothing to do but to give leave to the plt. to amend, and say it was a case of repairs, and not a case of necessaries. Now, with respect to the meaning of the 4th section, which is as follows. [The COURT read the 4th section cited above, and proceeded :-I am of opinion that, however the claim originally arose, whether it arose from giving credit to the master of the vessel, or not-provided that the claim was not satisfied at the time, and that the work for building, equipping, or repairing had been done and provided, also of the Court-it was and is competent to the party to proceed here. A difficult question might arise, whether in the wording of this section the claim which has been given in can be called a maritime lien or not, and if not, what would be the proper denomination of it. But Mr. Clarkson has argued, and very properly argued for his client, that his client never would have been responsible for these repairs, because the mortgagee was not in possession. That is perfectly true, but I do not see how that benefits him in the slightest degree, because he stands in the position of the original owner of the property, and takes his mortgage cum onere, and is, therefore, liable to all the repairs and all the debts legally attaching to the ship. I will give leave to amend the title of the cause, and with regard to the other questions I have expressed my opinion. Answer rejected, but without costs, the question decided being primæ impressionis and depending upon an ambiguous section of an Act of Parliament. March 12 and 22, 1864. (Before the Right Hon. Dr. LUSHINGTON.) Necessaries and mortgage-Priority-Domicil-Admiralty Court Act 1861, s. 5. The term "domiciled" in the Admiralty Court Act 1862, s. 5, is used in the ordinary legal sense, and if the owner of a ship is only temporarily absent from this country, an action for necessaries cannot be maintained against his ship. A material man has not by the mere fact of supplying necessaries a maritime lien against the ship. To obtain that lien he must have arrested the ship by warrant from the High Court of Admiralty. In the months of Nov. and Dec. 1861 and Jan. and Feb. 1862 the plt. furnished a vessel with necessaries. On the 12th Dec. the defts. became mortgagees of the vessel and duly registered the mortgage. On the 4th Feb. 1862, the plt. arrested the vessel in a suit in respect of the necessaries: Held, that the plt.'s claim in the Admiralty Court accrued at the date of the arrest of the vessel, and must therefore be postponed to the mortgage of the defts. The Skipwith, 10 L. T. Rep. N. S. 43, not followed. This was a suit for necessaries, and was brought by Joseph Hodgkinson, of Southampton, engineer, against the steamship Pacific and against John Morris and Frederic Palmer Martindale, joint mortgagees of the ship intervening. The question in this case came before the court on objection to the deft.'s answer. The petition alleged, amongst other things, that the plt., being duly employed for that purpose, executed in the months of Nov. and Dec. 1861, and the months of Jan. and Feb. 1862, certain work, consisting of a new gallery to the Pacific, and repairs to her hull, cabins and machinery; that in the month of Aug. 1862, Arthur Turner Clarke, the sole registered owner, quitted this country and went to reside at New York, or elsewhere in America, and that at the time of the institution of this suit he had no domicil in this country, and that the mortgagees of the ship have intervened and given bail in the suit. The answer alleged, amongst other things, that the said Arthur Turner Clarke left this country for the purpose of meeting his said ship at New York, but that he then intended to return to E land, and still intends so to do, and that he wa Deane, Q. C. and Middleton appeared in objection to the answer; and Mellish, Q. C. and E. C. Clarkson in support. [ADM. the time of the institution of this suit only tem- | Admiralty Court jurisdiction to decide all claims porarily absent from England, and was at such and demands whatsoever for necessaries supplied time domiciled in England or Wales, within the to a foreign ship, and to enforce the payment intent and meaning of the Admiralty Court Act thereof, whether such ship or vessel might have 1861. That, if the court has jurisdiction, the been within the body of a county, or upon the high mortgagees claim priority of payment. seas, at the time when the necessaries were furnished. This statute not applying to British vessels, the Admiralty Court Act 1861 gave the court jurisdiction over any claim for necessaries supplied to any ship elsewhere than in the port to which the ship belongs, unless it should be shown to the satisfaction of the court that at the time of the institution of the suit any owner or part owner of the ship is domiciled in England or Wales. The reason of these enactments seems to be plain. A real action in the Admiralty Court is given against a foreign vessel in all cases, because the owner is assumed to be beyond the jurisdiction, and vice versa it is denied against a British vessel where the owner is within the jurisdiction, or for a similar reason where the necessaries are supplied in the home port, because the presumption is, that the supplies were made upon the personal credit of the owner, who would there be known and trusted. In other words, the remedy against the ship is given only where a personal action against the owner would be fruitless, and then only when the supplies have not been made upon his personal credit. The material man, therefore, by the mere fact of his furnishing necessaries, in no case obtains the ship as a security until he commences a suit in the Admiralty Court; and in the case of a British ship may never obtain it at all, if by reason of the owner having his domicil in this country the suit cannot be instituted. This, I think, shows that the materialman has not a maritime lien, for that accrues instantly with the circumstances creating the claim, and not from the date of the intervention of the court. In the present case the defts. on the 12th Dec. 1861, by registering their mortgage, acquired the ship as a security, and at that time the plts., though they had supplied the neces saries, had not instituted a suit, and therefore had no lien on the ship. And it was not until Feb. 4, 1864, that the plts. arrested the ship, and thereby acquired security, but the ship was then by law subject to other claims. Under these circumstances the plts. must take the ship, subject to the incumbrances of the defts., unless the Act clearly prescribed that the claim of the necessaries man should override that of the mortgagee. But of this no trace whatever is to be found. It has, indeed, been urged that the court should follow equitable principles in regulating the priority of incumbrances, and that the mortgagee having, if the fact be so, had the benefit of the supply of the necessaries, his claim must be postponed to that of the material man, in the same way that in bottomry bonds the first bondholder is postponed to the second. This argument is not without weight, for upon such grounds rests the law of all those countries which give the material man a lien upon the vessel. But this is not the view of the English Legislature as expressed in the Act, which, as has been before stated, gives him no lien upon, but only a right to proceed against, the ship. For these reasons, after having given the question the best consideration in my power, I have come to the conclusion that, in the circumstances of this case, the mortgagee is entitled to be paid in preference to the material man; and in such case, according to the answer, the whole funds, viz. the proceeds of the ship, would be exhausted. Now, I think I am bound to notice the case of the Skipwith, as reported-and I have no reason to say not correctly reported. It may be that in that case some of the observations made by me, either really or apparently, are not reconcileable with this judgment. The observations may have Dr: LUSHINGTON.-This is a suit for necessaries, and is brought by Joseph Hodgkinson, and defended on behalf of the mortgagees of the ship. A petition has been given in, and an answer filed, and the present question arises on a motion to reject the answer. The necessaries were supplied partly in Nov. 1861, and partly subsequently. The mortgage bears date Dec. 12, 1861, and was duly registered at the time. On the 4th Oct. 1863 the mortgagees took possession; and on the 4th Feb. 1864 this suit was instituted. The owner left England in Aug. 1862. There are two objections which I am about to consider, and which I think will dispose of the question before me. The first is, that at the time of the institution of this suit the owner was domiciled in England, and if true, the court could not entertain the case. In order to oust the jurisdiction of the court, the statute requires that the plt. shall prove that the owner was so domiciled at the institution of the suit. A discussion having arisen as to the meaning of the word domiciled, I am of opinion that the Legislature has used it in its known legal sense, such as we find it defined by the highest legal authorities, and I think that if the owner was only temporarily absent animo revertendi the action would not lie. And though it may be true that such a construction would very much narrow the effect of the statute, which is remedial, no such consequence would justify the court in giving to the word domicil a meaning different from that which legally appertains to it. I cannot reject this article, but it must, if it is to be relied upon, be reformed by more specific pleading, that is to say, by alleging where this person was resident at the time when the order for the necessaries was given, and when they were furnished. In its present form the article is too vague, as it states merely that he quitted this country at a particular time, and is likely to return, and does not proceed to set forth where he was previously domiciled, and where he is now resident. The most important question, however, is, whether the material man can maintain his claim to priority of payment before the mortgagee. If he cannot, then he has in this case no effectual remedy, for the amount advanced on mortgage would exhaust the funds arising from the proceeds of the ship. The essential element in a mortgage transaction is the pledge of the ship itself; for though the mortgagee may also take the personal covenant of the mortgagor, he relies mainly upon the ship as his security, which becomes fixed when the deed is registered, and which cannot be displaced by the subsequent act of any third person, unless that third person is possessed of some lien which entitles him to precedence. By the law of some countries the material man has a lien upon the ship, and in very early times in this country also he could maintain a suit against the ship in the Court of Admiralty. But the decision of the Privy Council in the case of the Neptune, 3 Knapp, 94, took from this court the last vestige of such a jurisdiction, and from that date until recently the only remedy of the material man was at common law, and there of course he could only procced against the owner, and not against the ship. This state of things was partly altered by the 3 & 4 Vict. c. 65, s. 6, which gave the been correctly reported, but erroneously applied to the facts of the case, as I am now able to ascertain them. I regret that the case of the Skipwith was not brought before the court in a more formal shape, and that it was not more maturely considered; but, if I was in error in that case, assuredly I would never for a mere nominal consistency persist in it. I must order the answer to be amended, but I shall not give the costs of the motion, as the case well deserved serious consideration. SOUTHERN DISTRICT OF NEW YORK, Where a large propeller, lying in a slip, was running her screw for the purpose of testing her machinery, causing a powerful current to set towards the screw, and it becoming necessary to move barges which lay on the other side of the slip, the engineer of the propeller was requested to stop his engine for the purpose, and did so; but while a barge was being moved by his vessel, he started his engine again, and the current made by the screw drew the barge against it, and one arm of it cut into the barge and sunk her, causing damage, to recover which the owners of the barge libelled the peller: Held, that the case must be governed by the rules pro of That the case was not one of inevitable accident or mutual fault: That the engineer was negligent in starting his engine as he did. Evidence was given of a custom for propellers to run their screws while lying in the slips of New York city: Held, that, if such a custom exists, the privileges it confers should be exercised with great caution and in such a manner as to interfere as little as possible with the use of the slips by other vessels : That even though such a custom were proved, yet when the engineer of the propeller had consented to stop his engine for the purpose of moving the barges, the latter had a right to rely on its remaining motionless until they had accomplished their object, provided they were proceeding with no unnecessary delay. This action was brought to recover about 20,000l. damages for an alleged maritime tort. The facts were as follows:-On the 24th Nov. 1862, the steam propeller, George Washington, lay at pier No. 9 in the North River, in the city of New York, on the north side of the pier. She was a large new vessel, and was in the process of being completed - and fitted for sea. For the purpose of trying and perfecting her machinery, she had been running her engine and turning her screw during the day. The screw was 13 feet in diameter, and the effect of its revolution, as she lay fastened to the dock, was to cause a powerful current to set towards her screw from the opposite side of the slip. The slip was about 85 feet wide. The barge Fair Lady, a vessel belonging to the 'Philadelphia Steam Propeller Company, who were the libellants in the cause, lay in the same slip on the opposite side from the George Washington. Outside of her lay the barge Garibaldi, and ahead of them both lay another propeller, nearer to the end - of the pier. During the day it became necessary for the libellants to move the Fair Lady out towards the end of the pier. This could not be done safely, at least by any ordinary means, while the screw of the George Washington was in motion, as the Fair Lady would be in danger of being sucked over by the current caused by the revolution of the screw * within reach of its arms. The engineer of the [ADM. George Washington was therefore requested to stop his engine while the barges were being moved. He accordingly stopped it, and the Garibaldi was moved out and made fast near the end of the pier. The Fair Lady was then breasted out from the dock to be also moved forward. She had got about two-thirds of her length past the screw of the George Washington, when the engineer of the latter started his engine, thus setting her screw in motion. The powerful current caused at once by its revolution sucked the Fair Lady over to the stern of the George Washington, where an arm of the screw struck her and cut a hole in her bottom, causing her to sink, by which she and her cargo were greatly damaged, and it was for the recovery of this damage that the action was brought. For libellants were Messrs. Benedict, Burr and Benedict. For resps., Mr. Parsons and Judge Curtis. It Of SHIPMAN, J.-This is a somewhat novel case. must be subjected to the rules of Admiralty jurisprudence in cases of collision, so far as they are applicable to the peculiar features of the case. course, contrary to the rule of common law, if both parties are found to be in fault, the damage should be divided. There is no room for doubt that there was fault, and gross fault. The damage cannot therefore be attributed to inevitable accident. But, after a careful review of the evidence, and a full consideration of the very elaborate and able argument of the advocate for the claimants, I am clearly of opinion that the fault is exclusively chargeable to the negligence and unreasonable act of the person in charge of the George Washington's engine. His own testimony was taken on the trial, and I think, when fairly weighed with the facts stated by the witnesses for the libellants, it confirms the allegation contained in the libel, of negligent and improper conduct on the part of the steamer, and it satisfies me that the collision was brought about wholly by his unjustifiable act in starting his engine at the time he did. The libellants' witnesses furnish clear proof that he was requested to stop his engine, so that the barges could be moved. He admits himself, in his testimony, that he was requested to stop until they could move a boat or boats; he does not recollect which. He did stop, and the libellants proceeded to move the barges. The Garibaldi had to be moved first, as she lay outside of the Fair Lady. While the latter boat was in the act of moving without any delay, he suddenly started his engine and precipitated the collision. He states that, in his judgment, his engine was stopped twenty minutes. He then says, "Before I put the engine in motion again I went on deck and looked, and saw that the space between my ship and the boats on the opposite side, at Pier 10, was greater than where I stopped. I then went below and put my engine in motion again." The collision immediately followed. I think the course of the engineer wholly unjustifiable. He knew, or ought to have known, the effect of the motion of his ship's screw on the waters of the ship, and the danger that must attend the movement of any vessel on the opposite side of the ship. He had been requested to stop his engine for the purpose of allowing the vessel to be moved with safety, and that movement was still in progress. Before he ventured to start his engine, he should have fully satisfied himself that the object for which he had been requested to stop had been accomplished. Why he could not have ascertained that it was not accomplished by his own personal inspection it is difficult to conceive; for the proof is overwhelming that the Fair Lady was in plain sight, but a few yards from the side of his ship, with quite a number of men on her, engaged at that moment in the act of hauling her past his ship. Q. B.] CARR AND ANOTHER v. MONTEFIORI. [Q. B. If he looked at all, with any desire to ascertain the | James N. Cooper, arrived at Montevideo with 800 true condition of the Fair Lady, he could only have failed to discover it through great carelessness and inattention. A proper precaution, I think, for him to have taken, would have been to have hailed those in charge of the moving vessel, and thus ascertained from them the condition of things. Some evidence was offered by the claimants to prove that it is a custom for steam propellers to work their screws in the slips of this city; and it has been argued that this is a custom of which the libellants were bound to take notice, and against the consequences of which they should have taken precaution, by holding their barge with stronger lines and more force. An accomplished navigator was examined as an expert, who testified to the custom referred to, and | also gave it as his opinion that the movement of the Fair Lady, with no more secure lines than she had out when she was moved, was negligence under the circumstances. But one element upon which he founds his opinion consists in the assumption that the screw of the George Washington was liable to be put in motion at any minute. If the custom exists at all, it must be reasonable and strictly construed. No custom has been proved in this case broad enough to include the assumption of the experts, that propellers may start their screws at any moment without notice to vessels in the same slip and within reach of the dangerous currents produced by their motion, and thus throw upon such vessels the obligation of using perpetual vigilance and extraordinary means of protection. But, whatever may have been the rights of the George Washington under any custom when she had stopped her screw for the purpose of allowing the libellants to move the boats, the latter had a right to rely on its remaining motionless until they had accomplished that object, provided they were proceeding without unnecessary delay. Had not the screw of the George Washington been started, the Fair Lady would have been removed in perfect safety in a few minutes; and, assuming the custom proved to the extent claimed by the claimants, I think she had so far waived her supposed rights under it for the time being as to deprive her of the privilege of then starting her engine until the movement of the Fair Lady could be effected in safety, by the ordinary means and in the ordinary way. There is nothing in the evidence to show that the engineer of the George Washington was deceived or misled by any fault of the libellants, or their servants or agents. In disposing of this case I do not intend to adjudicate upon the validity or extent of the custom set up by the claimants; but it is very clear that if such a custom as is claimed exists, the privileges it confers should be exercised with great caution, and in such a manner as to interfere as little as possible with the ordinary use of the slips by other vessels. Let a decree be entered for the libellants, with an order of reference to compute the damages. tons of guano on board, which she had shipped at Liones Island, Patagonia, destined for England. A small portion of the guano was wetted, but the remainder appeared to be in good condition. The part that was wet was removed and reloaded after the ship had been thoroughly repaired. The ship and cargo were then put up for sale, and bought by Da Costa Brothers, of Montevideo, who renamed the ship Dos Hermanos. They determined to send her to Cork or Falmouth, to call for orders for any port in the United Kingdom, and it was arranged. that Messrs. Jacobs and Co., of Montevideo, should advance 40007. on the security of the ship and cargo, which were consigned to their London agents Messrs. Carr, Josling and Co. (the plts.). This arrangement was carried out, and Da Costa Brothers were requested to effect an insurance on. the ship and cargo. They accordingly did so with the company of which the deft. is chairman, but nothing was said as to the cargo having been partially wetted. On the face of the policy the insurance was described as "on the ship Dos Hermanos and her cargo of guano at and from a port or ports in the river Plate to the United Kingdom." The declaration, after averring the making of the policy, stated that the ship, with the goods on board, departed on the voyage, and during the continuance of the risk was obliged to put into a port of refuge, where she was found unfit to proceed on her voyage, and that thereon it became necessary to sell her and the cargo, and they were sold accordingly and were wholly lost. The breach laid was the nonpayment of the insurance money. The deft. pleaded several pleas to this declaration, of which the only one that is material was that the goods were not shipped on board at any port or ports in the river Plate. The plt. joined issue upon the above plea, and also demurred to it, on the ground that the not shipping the whole of the goods in the river Plate was no answer to the action. The question for the court was, whether the plts. were entitled to recover underthe policy in respect of both ship and cargo, or either and which of them. COURT OF QUEEN'S BENCH. Reported by JOHN THOMPSON and T. W. SAUNDERS, Esqrs, Barristers-at-Law. Tuesday, Nov. 17, 1863. CARR AND ANOTHER v. MONTEFIORI. Marine policy of insurance-Port of loading. Where it is stipulated in a marine policy of insurance that the ship and cargo are to be loaded at a particular port, such stipulation is complied with by a constructive loading. This was a special case stated upon a verdict for the plt. in an action upon a marine policy of insurance. The facts stated were as follows: In Aug. 1857 the ship insured, then called the E. James, Q. C. (Millward and Potter with him) appeared for the plt., and contended that the policy covered the cargo: Rickman v. Carstairs, 5 B. & Ad. 651; Brett, Q. C. (T. Jones and Cohen with him), argued for the defts. that, to enable the plts. to recover, the cargo must have been loaded at the port named in the policy, and moreover that the insurer ought to have been informed of the fact that the cargo had been wetted: The William, 5 Chr. Rob. 385; Murray v. The Columbian Insurance Company, 11 Johnson's Rep. 301 (United States). E. James, Q. C. in reply: Boyd v. Dubois, 3 Camp.133. COCKBURN, C. J.-I think our judgment should' be for the plts. Two points were made by the defts. in this case on which our opinion is requested. First, it was said, the risk, according to the terms of and the cargo having been, in fact, loaded at policy, being upon a cargo loaded at Montevideo, Liones Island, in Patagonia therefore, following the rule laid down in the earlier cases on the subject, the terms of the policy had not been complied with. Secondly, it was said that material facts had been concealed from the underwriters. As to the first point, it is, no doubt, true that there was not an actual loading at Montevideo; and if the authorities |