(C.A.) Q.B.D. Inman Steamship Co. v. Bischoff. 1881 writers, are not entitled to this money, and that the judgment for them should be reversed. Judgment reversed. Solicitors for plaintiffs: Waltons, Bubb & Walton. [6 Queen's Bench Division, 648.] April 13, 1881-(C.A.), Q.B.D. [IN THE COURT OF APPEAL.] *THE INMAN STEAMSHIP COMPANY, Limited, v. [648 BISCHOFF and Others. Insurance (Marine)—Policy—Freight-Loss by Perils of the Seas. The plaintiffs were the owners of a steamship named the P., which was chartered to the Commissioners of the Admiralty for transport service for three months certain at an agreed freight, which was not to be payable in the event of the steamship becom ing unseaworthy or unfit to perform the service for which she was chartered. One month's freight was to be paid to the plaintiffs in advance. The plaintiffs effected with the defendants a policy of insurance in the ordinary form upon freight. The P. sailed under the charter to the admiralty with troops for South Africa, and soon after the expiration of the first month of the period for which she was chartered she struck on a rock, and was so damaged as to become unseaworthy and unfit to perform the service for which she had been chartered. She was thereupon discharged from the service of the admiralty: Held, that the plaintiffs could not recover from the defendants the residue of the freight, which the P. would have earned during the time covered by the policy. ACTION upon a policy of marine insurance upon freight. The plaintiffs were the owners of a steamship named the City of Paris. By a charterparty dated the 20th of February, 1879, and made between the Commissioners of the Admiralty of the one part, and C. T. Ellis (on behalf of the plaintiffs) of the other part, it was witnessed that the commissioners had hired and taken to freight the City of Paris "for service and employment as a transport on monthly hire for the [649 space of three calendar months certain, and thenceforward until the commissioners for executing the office of Lord High Admiral aforesaid for the time being shall cause notice to be given to the said second-named party, his executors or administrators, or to the master or other person having charge of the said ship, that she is discharged from Her Majesty's service, such notice to be given when the ship is in port in the United Kingdom. And the said second-named party doth covenant and agree with the said commissioners in manner following, that is to say, that the said ship shall at all times during the continuance of this charter be strong, 1881 Inman Steamship Co. v. Bischoff. (C.A.) Q.B.D. firm, tight, staunch, and substantial, both above water and beneath, and in every respect seaworthy and properly manned, fitted, stored, furnished, equipped, and found at the proper cost and charge of the said owners. . . . In consideration of which covenants and conditions it is agreed by the said commissioners for and on behalf of Her Majesty in manner following, that is to say, that the said secondnamed party shall be allowed for the hire and freight of the said ship at the rate of 25s. per ton per calendar month . during such time as the said ship shall be continued in Her Majesty's employ, and shall duly and efficiently perform the service for which she is hereby engaged that the said second-named party shall, on signing and sealing hereof, be entitled to receive a bill made out and registered according to the usage of the navy for one calendar month's freight upon account and in part payment according to the rate and tonnage aforesaid, provided it be certified by the inspecting officer that the said ship is ready to proceed on Her Majesty's service. And after the said ship shall have been in the service two calendar months from the commencement of the said service and the said second party shall have produced to the said commissioners a certificate in the required form, the said second-named party shall be entitled to receive a further bill for a moiety of one month's freight upon account in manner aforesaid; and after the said ship shall have been in the said service three calendar months, and the said second-named party shall have produced to the said commissioners such certificate as aforesaid, the said second-named party shall be entitled to be paid a further bill for another moiety of one month's freight upon account, 650] and each month after during the ship's continuance in the said service, if such certificate as aforesaid shall have been produced, the said second-named party shall be entitled to receive a further bill for one month's freight on account, and shall be paid the balance of freight on the passing in the office of the requisite accounts and documents after the discharge of the said ship, all which aforesaid payments shall be made in England by bills payable in three days from and after the respective dates thereof by Her Majesty's Paymaster-General. Provided always, and it is hereby agreed and declared, that if at any time or times hereafter it shall be made to appear to the said commissioners that any delay has been caused or has accrued by breach of orders or neglect of duty, or that the said ship became incapable from any defect, deficiency, breach of orders, or from any cause whatsoever, to perform efficiently the service con (C. A.) Q. B. D. Inman Steamship Co. v. Bischoff. 1881 tracted for, then and in every such case it shall and may be lawful to and for the said commissioners to retain in arrear the pay of the ship for two months. . . . and to put the said ship out of pay, or to make such abatement by way of mulet out of the hire or freight of the said ship as they shall adjudge fit and reasonable . . . Enters into pay the 18th day of February, 1879." On the 22d of February, the plaintiffs, through their brokers, effected with the defendants (who were underwriters) a policy in the ordinary form on "freight outstanding," and the insurance was to last "at and from and for and during the space of three calendar months, commencing the risk on the 20th day of February, 1879, and ending on the 19th day of May, 1879, both days inclusive." The defendants were aware that the City of Paris was under charter to the government, but they did not in fact know the terms of it. The City of Paris took on board troops, and in the month of February, 1879, sailed for South Africa; but on reaching the Cape of Good Hope, on the 21st of March, she struck upon a rock and received such injuries as to render her unseaworthy and unfit to carry troops. She was put out of pay, and upon the 17th of April, 1879, whilst still at the Cape, she was discharged from Her Majesty's service by the senior naval officer at the Cape of Good Hope. After some delay her repairs were proceeded with, and she received a certificate of efficiency upon the 14th of May. The plaintiffs alleged that during the time covered by the policy *through the perils insured against a loss accrued to [651 the plaintiffs of the freight covered by the said policy, which would have been earned between the 21st of March and the 19th of May, 1879. At the trial, Brett, L.J., gave judgment for the plaintiffs. The defendants appealed. March 17; April 4. C. Russell, Q. C., and A. Cohen, Q.C. (J. G. Barnes, with them), for the defendants, in support of the appeal. Gully, Q.C., and D. French, for the plaintiff's. The arguments are sufficiently stated in the judgment hereafter set forth. The following cases were cited : As to the construction of the policy of insurance: Jackson v. Union Marine Insurance Co. (); Allison v. Bristol Marine Insurance Co. ('); Rankin v. Potter (†); Ripley v. (1) Law Rep., 10 C. P., 125; 11 Eng. R., 290: (2) 1 App. Cas., 209; 15 Eng. R., 82. 1881 Inman Steamship Co. v. Bischoff. (C.A.) Q.B.D. Scaife ('); Havelock v. Geddes ('); Taylor v. Dunbar(); Harrower v. Hutchinson ('); Bates v. Hewitt (5). As to how far the charterparty could be looked at in construing the policy of insurance: Halhead v. Young(). Cur. adv. vult. April 13. The judgment of the Court (Lord Coleridge, C.J., Bramwell and Baggallay, L,JJ.) was delivered by BRAMWELL, L.J.: The first question argued in this case turned on the clause in the charterparty, that "if at any time it shall be made to appear to the commissioners that the ship became incapable, from any defect or cause whatsoever, to perform efficiently the service contracted for, then it shall be lawful for the commissioners to retain in arrear the pay of the ship for two months, and to put the ship out of pay." The ship having become disabled by perils of the seas, and requiring repairs, the doing of which would last. 652] a considerable time, the commissioners, acting *under this clause, did put the ship out of pay, and so the plaintiffs said the freight was lost, and lost by perils of the seas. The defendants answered that either the commissioners had no power to do what they did, and, if not, the freight was not lost; or that they had, and if so, the freight was not lost. through perils of the seas, but through the peculiar powers given to the charterers. This argument supposes that the charterparty may be read as though set out in the policy. No doubt it not only may, but must, be looked at, and, for the purposes of this question at least, may be read as though set out in the policy. But what then? The question still arises, Was the loss of the freight a loss by perils of the seas? We are of opinion it was not. We are of opinion that but for the particular clauses in this charterparty, freight would have continued to be earned, notwithstanding perils of the seas. It must be carefully borne in mind that the hiring was not for three months merely, but was for an indefinite time, viz., till notice should be given by the commissioners when the ship should be in a port in the United Kingdom, with a provision that the minimum termi of hiring should be three months. Now it is clear then, on reason and authority, that but for the clause enabling (if it does enable) the commissioners to put the ship out of pay, she would have continued on it till she returned to the United Kingdom and was discharged, including the time necessary for repairs. That this is so, is strengthened by (1) 5 B. & C., 167. (2) 10 East, 555. (3) Law Rep., 4 C. P., 206. (4) Law Rep., 4 Q. B., 523. (C.A.) Q.B.D. Inman Steamship Co. v. Bischoff. 1881 the consideration of the provision in the charterparty, that the ship shall at all times during the continuance of the charterparty, be strong, firm, tight, staunch, and in every respect seaworthy. For that involves repairs necessary being done to the ship during the time included in the charterparty. But for the clause in question, therefore, the time in the charterparty would have run during the time of those repairs, and till the ship was discharged in a port in the United Kingdom. The perils of the seas, therefore, have not caused the loss of freight. They are causa sine qua non, but not causa causans, not the proximate cause of the loss. Suppose there had been a clause that the ship might be put out of pay if she stranded, and she had stranded, not been injured, but put out of pay. That would have been a loss in one sense by perils of the seas, no less than this, but clearly not covered by the policy. *Mr. French, however, took another point. He He [653 said, and apparently correctly, that the charter freight accrued de die in diem, but only while the ship "duly and efficiently performed the service;" that perils of the seas had prevented such due and efficient performance, and so the freight was lost by such perils. We are of a different opinion. There is no exception of perils of the seas in the charterparty to excuse the shipowner; but the clauses, which say when he shall be liable, by implication exclude a liability caused by perils of the seas. Those words, "duly and efficiently perform," &c., do not constitute a condition precedent. That is manifest from this, that if they did, then, though the service was rendered, but not duly and efficiently, the plaintiff's would not be entitled to any payment. For example, if through mismanagement, or even misfortune, five weeks were consumed in doing what could be done in four, no payment would be due. This cannot be. The remedy in such case is by cross action or putting the ship out of pay, the power to do which makes the construction contended for the less needful and probable. Further, the payment is to be monthly, and the second payment is to be after the ship has been two months in the service from the commencement of the service, and is to be a moiety of one month's freight. This is inconsistent with the contention of Mr. French. It may be asked, What is the meaning of the words? The best answer we can give, is to say about the same as the meaning in a lease of the words that "the lessee well and truly paying rent and performing covenants may quietly enjoy," &c. We think, |