Havana, the captain engaged the services of a steam tug and a pilot for the purpose of taking her to a clear anchorage. She was towed into the harbour past the point where she ultimately discharged her cargo, to a point at the head of the harbour called the Regla Shoal. There she grounded and received damage from the anchor of another ship. In my opinion she was at that time at Havana, and, consequently, the risk under the policy had attached. The damage occurred "at Havana," geographically speaking, and there is nothing which, to my mind, shews that the parties, at the time this policy was underwritten, contemplated any other meaning of the word "at." All the limitation which the law appears ever to have imposed as to the time of commencement of the risk in such a case is that the ship should arrive at the port "at" which she is insured in a state of sufficient repair or seaworthiness to be enabled to be there in safety: see Parmeter v. Cousins (a) and Bell v. Bell (b), in the latter of which cases the ruling of Lord Ellenborough at nisi prius was upheld by the Court in banc. Here, however, there seems to be no doubt that the ship was really within the harbour in good safety, and the loss occurred from a peril in the harbour, and in no way from any injuries she had received before her arrival. The ship being insured while "at" Havana is evidently (in the absence of any provision to the contrary) insured all the time she is there, and therefore the risk commences on her first arrival as put by Lord Hardwicke in Motteaux v. The London Assurance Company (c). Unless, therefore, we can say that her first arrival at the port is when she casts anchor there instead of when she entered the port, our judgment must be for the plaintiff. In many cases the nature of the port may (b) 2 Camp. 475.

(a) 2 Camp. 235.

(c) 1 Atk. 547.

1865.

HOUGHTON

v.

EMPIRE MARINE INSURANCE CO.

1865.

HOUGHTON

v.

EMPIRE MARINE INSURANCE Co.

be such that the two events may be identical. There may be nothing to shew the arrival till the vessel casts anchor, but here we have evidence as to the port of Havana which is sufficient, in my judgment, to shew that the arrival was before casting anchor.

It has been argued that the first arrival, which must be no doubt in good safety, must be identical with the mooring in good safety usually named in outward policies. But I think we cannot construe the terms of one contract by reference to those of another not referred to in it; and it is clear that there is no usage that the durations of the outward and homeward policies should not overlap, because the outward policy usually extends to twenty-four hours after the vessel is moored in good safety. During those twenty-four hours there is no question that there is a double insurance, and therefore I see no ground for saying that the parties contracted subject to any usage that such a policy would not attach until the previous one had determined. If they had wished to make such a condition it might easily have been done, or if, having in view any special dangers, as shoals or the like, within the port of Havana, they had chosen to make the risk date from the vessel being moored in safety, they would have done so, but as it stands it is from her first arrival, which, as a matter of fact, I think to be on her entering the port. My judgment is, therefore, for the plaintiff, that the rule be discharged.

PIGOTT, B.-This was an action on a valued policy on a ship. The risk was thus expressed "at and from Havana to Greenock. (His lordship then stated the facts as above set forth, p. 46.) The verdict was entered for the plaintiffs for 3531. 3s. 1d., with leave to enter a nonsuit.

The sole question is, whether the policy had attached. I am of opinion that it had.

I agree with the plaintiff's counsel that the language used by the parties ought to have a plain construction, and that, as the ship had arrived geographically within the harbour of Havana and was in safety there before the injury was received, that the risk then commenced.

A policy of insurance is to be construed by the same rules as other contracts, the duty of the Court being to collect the parties' meaning by taking the language employed in a plain and ordinary sense, and not to speculate on some supposed meaning, which they have not expressed. For the defendant it was argued that Havana being an outward port, as regards this ship, the meaning of the words "at and from" such outward port was, that the risk shall commence when the ship has so far performed her outward voyage that nothing remains to determine the outward policy but the effluxion of the twenty-four hours from her arrival; and that, so understood, this policy had not attached, inasmuch as the ship had not arrived at her place of discharge.

But it seems to me that this would be a very artificial construction to adopt, and we have no safe guide to conduct us to it. It might with equal plausibility be argued that the risk "at and from a port" should not commence till the insurance "to" that port ceased, which is at the end of the twenty-four hours, and not at the commencement of them. The answer to both suggestions seems to be that the construction of this contract cannot depend upon the contents of another and distinct one, which is wholly unconnected with it, nor is the Court called upon to know or assume that there is in fact any outward policy in existence.

This view is supported by the authority of Lord Hardwicke, in 1 Atkins, p. 548. He mentions a case tried before him at Guildhall, in which he says, "It was doubted whether the words 'at and from Bengal' meant the first

1865.

HOUGHTON

v.

EMPIRE MARINE INSURANCE CO.

1865.

HOUGHTON

v.

EMPIRE MARINE INSURANCE Co.

arrival of the ship at Bengal ;" and, he adds, "It was agreed the words first arrival were implied, and always understood in policies." Now, there can be no question about the sense in which Lord Hardwicke uses the words "first arrival," viz., in contradistinction to her being moored in a particular place, or discharging her cargo.

In Parmeter v. Cousins (a) Lord Hardwicke's report of the above case is mentioned; and the learned reporter adds, "There seems no doubt that the rule laid down by Lord Hardwicke, qualified by the principal case (to which the note is appended), is to be considered as established law upon the subject. The qualification there alluded to is that the ship shall be once in good safety at the port, a matter not in dispute in the present case.

This doctrine, and the authority for it, is to be found in several of the text books on insurance, and may be thus taken to have been long considered as the meaning of those who so word their policies. In Arnould, p. 28, it is the form recommended to parties to be adopted for their advantage in protecting the ship from "the moment of her arrival."

I do not think it necessary to advert to the other question raised, viz., whether in fact this ship had not anchored in the harbour before the damage was sustained, and at a place even further within it than her place of ultimate discharge, nor whether that makes any difference in the

case.

In my judgment the plaintiff is entitled to keep his verdict, and the rule should be discharged.

Rule discharged.

(a) 2 Camp. 238.

1865.

RICHARDS v. HARPER and Another.

Jan. 16.

Nov. 8.

seised in fee

of freehold

DECLARATION. For that the plaintiff was possessed B., being of land, with a house, outbuildings and wall erected and of copyhold standing thereon, called the Ettingshall Parsonage, situate land, and also at Ettingshall, in the parish of Sedgley, in the county of land adjoinStafford, in his own occupation, and by reason of the premises the plaintiff was entitled to have, and in fact had,

ing, surren

dered the

copyhold land

to G. subject

to a deed,

whereby G.

covenanted

if in working

hold land he

mage to the

buildings on

G.'s land, he

or his assigns

should not

be compelled equity to make any compen

at law or in

the said land, house, and outbuildings and wall supported by the land adjacent and near thereto, and by the with B. that soil and minerals under the said land, house, build- the mines ings and wall of the plaintiff: Yet the defendants under his freewrongfully, carelessly and improperly, and without leaving did any daany proper or sufficient support in that behalf, made underground excavations, and dug out and removed the said land adjacent and near to the said land, house, outbuildings and wall of the plaintiffs, whereby the same sank and gave way, and the said house, outbuildings, and were weakened, dilapidated, cracked and injured, And also for that the defendants so wrongfully, negligently, nify improperly and unskilfully dug and worked certain mines claims and adjoining land and buildings of the plaintiff, that the said whatsoever for any such land and buildings of the plaintiff gave way and sank, and damage. The the said buildings were weakened, cracked and injured, &c. copyhold land Plea to so much of the declaration as relates to injury to the house, outbuildings and wall in the first count, and to the buildings in the second count mentioned. before and at the time of the making the demise to the defend

wall

sation to G.,

&c.

and that G.

would indem

against all

demands

was enfran

afterwards

chised, and vested in the plaintiff. The That freehold land was conveyed

ant, who, in working his

mines under it, caused damage to the buildings on the plaintiff's land.-Held, that the plaintiff was not bound by the covenant.

Aliter, if the land had been freehold: Per Pollock, C. B. Dissentientibus, Martin, B., Channell, B., and Pigott, B.