1874 De Wolf v. Archangel Insurance Co. 454] a verdict, a *motion for a new trial was refused. It appears from the report as if the counsel who moved treated the case entirely as one of concealment and not as one of a change of risk; but Lord Ellenborough, in his judgment, separates the two questions. He says: "When a broker proposes a policy to an underwriter on a ship at and from a certain place, it imports either that the ship is there at the time or shortly will be there; for if she is only to be there at a distant period that might materially increase the risk. But it has never been understood that the terms of such a policy necessarily imported that the ship was at the place at the very time so as to make the assured guilty of deception if she were not." So far he is dealing with the non-disclosure of the fact that the ship was in the Thames on the 13th of August. He then proceeds: "It was a question for the jury, whether the intervening period materially varied the risk in this instance; the interval being from the 13th to the 27th of August, with the additional days which elapsed from the sailing till she reached Heligoland. And the jury were not persuaded that the risk was thereby varied, and found for the plaintiff." And Bayley, J., says, "It was a question for the jury whether the delay in reaching Heligoland for so many days after the policy was effected, materially varied the risk." The affirmative decision here is, that a delay not varying the risk does not discharge the underwriter, but the opinion is express that a delay materially varying the risk does discharge the underwriter, though that was not the very point decided. In Driscol v. Passmore (), decided in 1798, where an analogous question arose and the plaintiff recovered, it is stated in the report, that "it was in evidence that the difference of season arising from this delay did not vary the risk.” Brine v. Featherstone (3) came before the court on a rule to enter the verdict on a point reserved at the trial, and the court in banc had not to consider whether the delay was such as to discharge the underwriters. The facts as stated in the report appear to be such as would have afforded evidence that the delay was such as to vary the risk; but if that defence was raised at nisi prius, which does not appear to have been the case, there may have been some other evidence not stated in the report which justified the finding of the 455] *jury. Neither of those cases can, as we think, be considered in conflict with Hull v. Cooper (3). The case, however, that comes nearest to the present is (1) 1 B. & P., 200. (2) 4 Taunt., 869. (3) 14 East, 479. De Wolf v. Archangel Insurance Co. 1874 that of Mount v. Larkins ('). In that case the facts were found in a special verdict, a part of which only is set forth in the report. The policy was on the ship Aquila, at and from Singapore and Batavia, both or either, to the ship's port of discharge in Europe. In the report it is said that it was found that the policy was entered into on the 28th of February, 1824; that the ship sailed from England in the beginning of September, 1823, on a voyage to the Cape of Good Hope, Van Dieman's Land and Sydney, and thence to Singapore. It is not stated in the report that it was known to the underwriters that she was bound on this preliminary voyage, but it is scarcely possible that it should be otherwise, and in the judgment of the court it is assumed throughout that it was known to them. The jury found that there was "unreasonable and unjustifiable delay between the making of the policy of assurance and the commencement of the risk intended to be insured against. On this the Court of Common Pleas decided in favor of the defendants, saying "We must intend that the risk was in fact varied, and consequently the underwriters discharged." This would be precisely in point, were it not that it was there expressly found that the delay was unjustifiable, and that in the present case the plaintiff has not been allowed to give evidence to show that the delay was not from any fault of his. The ground on which the judgment delivered by Tindal, C.J., in Mount v. Markins () is based is that "The underwriter has as much right to calculate upon the outward voyage on which the ship is then engaged being performed in a reasonable time and without unnecessary delay, in order that the risk may attach, as he has that the voyage insured shall be commenced within a reasonable time after the risk has attached. In either case the effect is the same as to the underwriter, who has another risk substituted instead of that which he has insured against, and in both cases the alteration is occasioned by the wrongful act of the insured himself." This may be relied on as an expression of opinion that the delay, if necessary, would not discharge the underwriters. It may be so, where the fact that *the vessel is on a preliminary voyage is known and [456 communicated to the underwriter, so as to make that the basis of the contract; and it seems to have been understood by Tindal, C.J., that the principle on which the cases of Vallance v. Dewar (3) and Ougier v. Jennings (*) were decided was on the ground of notice. He says in both those cases, (1) 8 Bing., 108. (2) 8 Bing., at p. 122. (3) 1 Camp., 503. 1874 De Wolf v. Archangel Insurance Co. "It is admitted that a delay in the commencement of the risk, by the interposition of an intermediated voyage not communicated to the underwriters, would discharge the policy, unless such intermediate voyage was one which was made usually and according to the course of the trade in which the ship was then engaged, which would be equivalant to notice to the underwriters." We need not in the present case decide how that is, for there was no communication made to the underwriters as to where the ship was at the time when the policy was made. And we think it, under such circumstances, not material whether the delay which varies the risk was occasioned by the fault or the misfortune of the assured. In either case the risk is equally varied. Where the alteration in the course of the voyage after the risk has attached is justified by necessity it does not vary the risk. The underwriter has undertaken to insure the vessel during the usual and proper course of the adventure. Now, though, under ordinary circumstances, the usual proper course of a voyage is to proceed direct, or if chased by a hostile cruiser, or forced to run before a storm, to go out of the direct course, the underwriter takes his chance of the vessel being forced to do so. But the underwriter does not take upon himself any part of the risk of the vessel being delayed so long as to vary the risks by perils of the sea or otherwise on its passage to the port where the risk is to attach. This seems involved in the decision of Hull v. Cooper ('), that the assured is not bound to communicate to the underwriter the place where the vessel is at the time of insurance. For if the time when the risk is to attach might be indefinitely delayed by perils affecting the passage from the place where the vessel was, it must be material to the underwriter to know what that place is. If, on the other 457] hand, at whatever place the ship then is, the risk *is not to attach unless the vessel in fact arrives at the port within a proper time, it is not material to the underwriter at what place the ship then is. The position is laid down in Phillips on Insurance, vol. i, p. 379, s. 690, "that it is an implied understanding that the risk is to commence within a reasonable time, unless the policy contains some express provision on the subject." He elsewhere, vol. i, p. 332, s. 602, expresses a hesitating opinion that a representation, though not embodied in the policy, may have the effect of qualifying or rebutting an understanding that is only implied. As already said, we (1) 14 East, 479. are not called upon to decide how this may be, as in the present case there was neither representation nor express provision in the policy. We think, at all events, in the absence of a representation, that in a policy "at and from a port" it is an implied understanding that the vessel shall be there within such a time that the risk shall not be materially varied, otherwise the risk does not attach. The rule, therefore, must be discharged. Rule discharged. Attorneys for plaintiff: Flux & Co. [Law Reports, 9 Queen's Bench, 457.] June 5, 1874. MULLER V. BALDWIN. Port Dues-" Coals exported from the Port," Meaning of-35 Vict. c. xiii. By the Tyne Coal Dues Act, 1872 (35 Vict. c. xiii.), the old coal dues are abolished, and the commissioners are empowered to levy dues, inter alia, one penny per ton on "coals exported from the port": Held, that, in the absence of anything in the act to the contrary, "exported from the port" must be taken to be used in its ordinary meaning of "carried out of the port;" and therefore included coals taken out of the port in a steamer to be consumed on board during a distant voyage. CASE on appeal from the County Court of Northumberland, holden at Newcastle-on-Tyne. The following are the material parts of the case: The action was brought to recover £2 4s. 2d., the amount of *coal dues claimed by defendant, and paid by [458 plaintiff under protest, under the following circumstances: In 1872 the Tyne Coal Dues Act, 1872 (35 Vict. c. xiii.), was passed; it is entitled "An Act to abolish the Tyne Coal Dues, and in lieu thereof to provide new dues to extinguish the right to increase rates under The Harbors and Passing Tolls Act, 1861, &c." After reciting the previons acts, 13 & 14 Vict. c. lxiii., and 33 & 34 Vict. c. xc., and that it is expedient that the said dues called the coal dues should be abolished, and that in lieu thereof and in extinction of the right, power and claim of the commissioners under s. 14 of The Harbors and Passing Tolls &c. Act, 1861, to indemnify themselves for the loss of the compensation for differential dues, there should be payable to the commissioners tonnage dues on coals, cinders, coke, grindstones, and salt exported from the port to be called the "River Tyne export dues," it is enacted by s. 2, the expression "coal dues," means the dues heretofore payable on coals, cinders, grindstones and salt exported from the port. By s. 3, that on and after the 1st of June, 1872, the coal dues shall be abolished, and in lieu thereof and in extinction of the right, power, or claim by the commissioners under the Harbor and Passing Tolls, &c., Act, 1861, to indemnify themselves for the loss of compensation paid to them for differential dues by raising any of the rates which they have power to levy, there shall be payable to the commissioners in respect of coals, cinders, coke, grindstones and salt, exported from the port, the following dues, that is to say, in respect of coals, cinders and coke, 1d. per ton of 20 cwt.; in respect of grindstones, 3d. per ton of 20 cwt.; and in respect of salt 1d. per ton of 20 cwt.; which dues shall be called "River Tyne export dues," and shall be carried to the account called "The Tyne Improvement Fund," and shall be applicable to all purposes to which the Tyne Improvement Fund shall from time to time be applicable. On the 19th of April, 1873, a Norwegian steam-vessel called the Hakar Adolstein sailed from the port of Newcastle-on-Tyne with 530 tons of coal, alleged to be bunker coal, or coal for ship's use on board. 459] *The defendant, who was the duly authorized collector of dues for the Tyne Improvement Commissioners, demanded from the plaintiff, who was the master of the steam-vessel, a due of 1d. per ton, amounting to the said sum of £2 4s. 2d. in respect of the said 530 tons of coal. The plaintiff at first refused to pay, upon the ground that the coal was intended solely for ship's use, but afterwards he paid under protest. It was admitted by the parties that the vessel cleared for the port of Christiania in Norway, taking in goods at Newcastle for New York, and proceeded to Christiania, and from thence, via Bergen, to New York, her ultimate port of destination; that 45 tons of coal would be required for the purpose of navigation from the Tyne to the port of Christiania, and 300 tons for a voyage from Christiania to New York. Evidence was given of the usage of the port as regards bunker coal, or coal for ships' use, from the year 1840, and it was proved that, with the exception of about ten days in the year 1870, the corporation of Newcastle (to whom the dues were then payable) has never attempted to levy dues on such coal; that at the expiration of those ten days the corporation had stopped the levy, and had returned the sums |