the true construction of the policy; and that when the brig proceeded to Buenos Ayres she was on a new voyage not protected by the policy." The Missouri case was one of deviation to save property. In the New York case the doctrine of the rule was admitted, adding that "delay not expressly prohibited by the policy, for a reasonable time, for the purposes of the adventure, must always in such cases be allowed."

No 8. PHILLIPS v. IRVING.

(C. P. 1844.)

RULE.

DETENTION for a reasonable time for the purpose of the adventure insured does not constitute deviation; and, where a seeking ship is waiting at an authorised port, for the purpose of obtaining a cargo at a reasonable amount of freight, the question whether the time is reasonable or not must be determined, not by any positive and arbitrary rule, but by the state of things existing at the time at that port.

Phillips v. Irving.

7 Manning & Granger, 325-329 (s. c. 8 Scott N. R. 3; 13 L. J. C. P. 145). Insurance.- Deviation. Detention for Reasonable Time for purpose of Voyage. [325] In a policy on a seeking ship, a detention for a reasonable time for the purposes of the seeking adventure must be allowed; and whether the time is reasonable is to be determined by the state of things at the port where the ship happens to be.

A ship insured, with liberty to touch, stay, and trade at several ports, arrived at one of them on the 3d of June when some necessary repairs were done to her. On the 2d of September she was ready to take in cargo, but, owing to the state of the freight-market and other difficulties, no cargo was put on board till the 10th of January following: Held, that the delay was not unreasonable, so as to amount to a deviation.

Assumpsit, upon a policy of assurance, dated the 29th of Jannary, 1842, signed by the defendant as chairman of the Alliance Marine Insurance Company, on the ship Broxbournebury, at and from London to Bombay, and thence to China, and back to the United Kingdom, with liberty to touch, stay, and trade at all ports and places on this side, at or beyond the Cape of Good Hope.

First plea, that the ship, having arrived at Bombay, remained there an unreasonable time; and that the assured did not duly prosecute the voyage insured, and therefore were guilty of a deviation.

Replication, de injuriâ.

There were other pleadings in the cause, but they were not material to the question now raised.

At the trial before TINDAL, C. J., at the sittings for London after last term, it appeared that the ship arrived at Bombay on the 3d of June, 1842; that some repairs were necessary, which were completed on the 2d of September; and that the ship was then ready to take in cargo; but that in fact none was put on board until the 10th of January, 1843. The ship was a seeking ship, commanded by one of the part-owners; and it was clearly proved that he could not at an earlier period have obtained a cargo, either for China or the United Kingdom, at a remunerating freight. Several circumstances combined to render freights unusually low at Bombay during the time that the ship in question remained * there. Ships that had taken out troops were in [* 326] want of homeward cargoes, and the disturbance of the trade with China had prevented many ships from sailing thither from Bombay. The latter port was therefore crowded with shipping; and the freights offered would, if accepted, have occasioned a great loss to the owners.

The ship sailed for London on the 22d of March, 1843, but was compelled, from stress of weather, to put in at the Mauritius, when she was found to be so much damaged as not to be worth. repairing, and she was consequently abandoned. Benson v. Chapman, 6 Man. & Gr. 792.

It was agreed that it should be reserved for the Court to determine upon the facts applicable to the first issue, whether there had been such an unreasonable delay as to discharge the underwriters, and a verdict was returned for the plaintiff with £887 damages, leave being reserved to the defendant to move to enter a nonsuit,. or a verdict for himself.

Channell, Serjt., now moved accordingly, and submitted that the delay at Bombay was unreasonable, and amounted to a deviation. [CRESSWELL, J. The Broxbournebury appears to have been a seeking ship. The usual course in such a voyage is, that the captain is to do what is reasonable for the owners; and the

underwriters subscribe to that risk.

Metcalfe v. Parry, 4 Camp. 123 (15 R. R. 734)].1 The delay here is accounted for, partly by the necessity for certain repairs, partly by the state of the market; but the underwriters are not to be made liable in respect of the latter. [TINDAL, C. J. The question is, whether the captain waited an unreasonable time with reference to the state of the market; and if he did not, whether the underwriters did [* 327] not take the risk.] The delay arose from * an unusual state The policy was entered into with refer

[TINDAL, C. J.

of circumstances.

The owners might have The captain has authority

ence to the ordinary state of things. made a time policy. [TINDAL, C. J. under the policy " to touch, stay, and trade." It is clear he stayed in this case for the purpose of trade. The question must be whether he did so for a reasonable time. CRESSWELL, J. How are we to know what is the ordinary state of trade at Bombay ?] It is clear from the evidence that the circumstances proved were not usual. [TINDAL, C. J. I will show my notes to my brothers, and we will see if the rule ought to go. CRESSWELL, J. It is a very important question to persons engaged in the African trade, where the circumstances vary much.2]

The learned serjeant referred to Mount v. Larkins, 8 Bing. 108, 1 M. & Scott, 165. Cur, adv. vult.

TINDAL, C. J., on the following day delivered the judgment of the Court.

In this case we are of opinion that a rule for entering a nonsuit, or a verdict for the defendant on the first issue, ought not to be granted. (His lordship then stated the pleadings, ut supra.)

At the trial, the facts applicable to the first plea (which is the only one on which any question is raised) were withdrawn from the consideration of the jury, and it was agreed that the Court should decide whether the assured were discharged by the alleged

delay. We have, therefore, read the evidence given by [* 328] the captain * and his mate as to the circumstances under

No. 8. Phillips v. Irving, 7 Man. & Gr. 328, 329. — Notes.

which the ship remained at Bombay. (His lordship stated the evidence, ut supra.)

There was nothing to show that, as far as the interests of the owners were concerned, the delay at Bombay was improper. But it was contended, that, although the adventure on which the ship sailed from England may have been prosecuted without any improper delay, as far as the owners were concerned, yet, with regard to the underwriters, the case was different, and the delay was unreasonable and improper, and therefore equivalent to a deviation; and that, as the concurrence of circumstances which rendered freights at Bombay ruinously low, was unusual, it could not be said that the voyage was prosecuted in the usual course. It was not, nor could it be, denied that the ship might be detained for some time in order to obtain a cargo at a reasonable rate of freight : but it was said that such detention could not, without discharging the underwriters, be extended beyond the time usually required for such purpose. It appears to us, however, that no such rule can be laid down; that the detention, for a reasonable time for the purposes of the adventure insured, must be allowed; and that, whether the time is reasonable or not, must be determined, not by any positive and arbitrary rule, but by the state of things existing at the time at the port where the ship happens to be. It may be collected from numerous cases, that delay before or after the commencement of a voyage insured, is not equivalent to a deviation, unless it be unreasonable. Hartley v. Buggin, 3 Dougl. 39, Park, Ins. 313, 652 (p. 391, ante); Ougier v. Jennings, 1 Camp. 505 n. (10 R. R. 739 n.), Mount v. Larkins, 8 Bing. 108, 1 M. & Scott, 165. And we think that no certain and fixed time can be said to be a reasonable or unreasonable time for seeking a cargo in a foreign port; but that the time allowed must *vary with the varying circumstances which may render it [* 329] more or less difficult to obtain such cargo. Judging of the facts of this case according to that principle, it does not appear to us that the delay at Bombay was unreasonable. We therefore think that the verdict found for the plaintiffs ought not to be disturbed. Rule refused.

ENGLISH NOTES.

"Where a ship is insured at and from a place, and it arrives at that place, as long as the ship is preparing for the voyage upon which it is insured, the insurer is liable; but if all thoughts of the voyage are laid

aside, and the ship lies there five, six, or seven years, with the owners' privity, it shall never be said that the insurer is liable, for it would be very absurd to make him suffer for the whim or caprice of the owner, who chooses to let the ship lie and rot there." Per Lord HARDWICKE, Chitty v. Selwyn (1742), 2 Atk. 359.

In Smith v. Surridge (1801), 4 Esp. 25, 6 R. R. 837, the insurance was on ship "at and from Pillau to London." The ship was delayed for necessary repairs and afterwards by the difficulty in getting over the bar. It was held that the delay was reasonable.

In Grant v. King (1803), 4 Esp. 175, 6 R. R. 849, the insurance made in August, 1789, was from Brest to London. The ship sailed in March following. The delay was explained by the difficulty of getting American sailors who were necessary to man the ship for the purposes of the voyage. Lord ELLENBOROUGH said that to discharge the policy there must be a clear imputation of waste of time. Mere length of time elapsing between the sailing of the vessel and the underwriting of the policy, is not of itself sufficient to avoid the policy. He left the case to the jury, who found a verdict for the plaintiff.

Schroder v. Thompson (1817), 7 Taunt. 462, 18 R. R. 540, was an action upon a policy of insurance on ship "at and from London to the ship's loading port or ports in Virginia, and back to London with liberty to touch at St. Ubes." The ship sailed from London in ballast, shipped a cargo of salt at St. Ubes, and therewith arrived at Norfolk in Virginia on 30th January, 1808. She finished discharging on 27th February, and there remained until an embargo existing at the time of her arrival was taken off and afterwards to load a cargo. She set sail for London with her homeward cargo on the 13th August, 1809, and was lost at sea. The jury found that she had acted reasonably, and the underwriters were held liable.

In Bain v. Case (1829), 3 Car. & P. 496, M. & M. 262, a ship was insured at all or any ports and places in the Northern and Southern Pacific Ocean, Rio Janeiro," &c. The ship had remained one hundred and nine days at the port of St. Blas. It was explained by the captain that he stayed in the hope of getting permission to land his cargo, as negotiations were pending with the government there for permission to him to do so. Lord TENTERDEN ruled that it was a question of fact whether it was an unreasonable time. The jury found for the plaintiff, finding in effect that it was not unreasonable.

AMERICAN NOTES.

The principal case is cited by Barber on Insurance, sect. 117.

In Oliver v. Maryland Ins. Co., 7 Cranch (U. S. Supr. Ct.), 487, it was held (MARSHALL, C. J., giving the opinion), that the danger which would