burrow belly the young versus governor and company OF the royalexchange  assurance Monday d may the sail and furniture of a ship take thereout and  lodge in a warehouse if accidental burn by fire before the ship return from  the voyage shall be make good by the underwriter see durn bosan refer to  Rodocanachi v Elliott lr c p lr c p Pearson v Commercial union assurance  company App Cas this come before the court upon a case reserve on a trial at  guildhall before for the clear understanding of the different term grant to  the bail under different circumstance see mire v Arthur strange hunter v  Samson all burrow er p Lord Mansfield where a verdict be find for the  plaintiff subject to the opinion of the court it be a action of covenant upon  a policy of insurance case the plaintiff be partowner of the ship Onslow a  eastindia ship then lie in the Thames and bind on a voyage to china and back  again to London insure it at and from London to any port and place beyond the  cape of good hope and back to London free from average under ten per cent upon  the body tackle apparel ordnance munition artillery boat and other furniture  of and in the say ship beginning the adventure upon the say ship c from and  immediate follow the date of the policy and so to continue and endure until  the say ship with all her ordnance tackle apparel c shall be arrive as above  and have there more at anchor twentyfour hour in good safety and it shall be  lawful for the say ship in this voyage to proceed and sail to and touch and  stay at any port or place whatsoever without prejudice to this assurance the  peril mention in the policy be the common peril videlicet of the sea man of  war fire enemy pirate c c and all other peril loss and misfortune c the  premium be seven guinea per cent with the usual abatement of two per cent in  case of a loss the ship sail c arrive in the river canton in china where she  be to stay to clean and refit and for other purpose upon her arrival there the  sail yard tackle cable ring apparel and other furniture be by the captain  order take out of her and put into a warehouse or storehouse call a bank saul  build for that purpose on a sandbank or small island lie in the say river near  one of the bank call BankSaul island about two hundred or two hundred and  twenty yard in length and forty or fifty yard in breadth in order to be there  repair keep dry and preserve till the ship shall be heel and clean and refit  sometime after this a fire accidental break out in the banksaul belong to a  Swedish ship and communicate itself to another bank saul and from thence to  the banksaul belong to the Onslow and consume the same with all the sail yard  tackle cable ring apparel and other furniture belong to the Onslow which be  therein burrow it be state that it be the universal and well know usage and  have be so for a great number of year for all European ship which go a china  voyage except Dutch ship who for some year pass be deny this privilege by the  Chinese and look upon such denial as a great loss when they arrive near this  BankSaul island in the river canton to unrig the ship and to take out her sail  yard tackle cable ring apparel and other furniture and to put they on shore in  a banksaul build for that purpose on the say island in the manner that have be  do on the present occasion by the captain of the Onslow in order to be there  repair keep dry and preserve until the ship shall be heel clean and refit and  the case further state that it appear that the so do be prudent and for the  common and general benefit of the owner of the ship the insurer and insure and  all person concern in the safety of the ship the ship arrive from her say  voyage in the Thames in September have be unrip and put in the best condition  the nature of the place and circumstance of affair will permit question  whether the insurer be liable to answer for this loss so happen upon this  banksaul within the intent and meaning of this policy Mr William for the  plaintiff after premise that this question arise upon the construction of a  policy of insurance that these policy of insurance be of ancient date be  beneficial as they tend to divide the risk and have be every where encourage  in trade country make these three division of his argument first he undertake  to prove that the plaintiff demand be find on strict justice dly that they be  agreeable to both the word and meaning of the policy and support by legal  determination dly he say he will mention the opinion of foreign lawyer upon  the subject indeed it have be object that this be not a loss at sea but a loss  at land first the policy be general it be not confine to loss at sea strange  Everett v Gery strange Richardson v jelly strange coal v Buckland strange  particular the first and four of these case which show the distinction burrow  er p burrow second this be not a loss at land it be what happen upon a sand  bank in the river then he proceed to his three head or division of his  argument saint as to the justice of the plaintiff case the insurer have  profess and explicit insure the ship and all her ring furniture c from fire c  from her go out to her return and they must be take to be apprise of the usage  and to have calculate their premium accord and what have here be do be state  to have be do for the benefit of the insurer and of the ship and of all person  concern in the safety of it and also to have be prudent if the body of the  ship have be burn in this interim and these sail and furniture have be save by  be in this warehouse the insurer will then have have the benefit of this  savage therefore they ought in the contrary event to be answerable for they  when they be by these mean burn and the ship not burn it be the captain duty  to perform the voyage in the usual and proper course and this be so far from  be a neglect or misbehaviour in the captain that he be state to have act  prudent and for the benefit of the insurer and of all concern dly this be  within the word of the policyit be a insurance from London to any port or  place beyond the cape of good hope and back and during the voyage and fire be  express insure against and it be also within the meaning and intent of the  policy for this loss have happen within the usual course of the voyage and of  this species of trade and therefore the insurer be liable and this be the true  distinction to prove which he cite salk bind v Gonsales deviation or not must  be take accord to the necessity and usage Clayton v simmons that march at  guildhall per lee Ch I if the master put into a port not usual or stay a  unusual time it be a deviation and discharge the insurer not if he do as usual  Tierney v etherington march per lee Ch I at GuildhallThe good be unload and  put into a storeship at Gibraltar and there lose the question be whether this  be a loss at land or a loss in the voyage he hold that policy ought to be  construe large and for the benefit of the insure and accord to the course of  trade and the method burrow usual at the place and as that be the know course  of trade at Gibraltar he hold the insurer to be responsible and in easter term  follow p g there be a motion for a new trial which be refuse now that be not  within the word of the policy and yet hold to be within the meaning of it  where a insurance be for one entire voyage the contract can not be suspend and  revive again if it be suspend at all it be determine and yet they will hardly  argue that this contract be absolute determine by this Act that be state dly  as to the opinion of foreign writer they hold that where the assurance be  general the insurer be liable to all loss happen in the usual course of the  voyage and to this purpose he cite Loccenius de jure maritimo l c sect de  aversion danger who distinction turn upon the master pursue the usual course  of the voyage Marcarlus de jure Mercator l c No roccus de assecurationibus No  the insurer be liable for all loss durante journey so that the principle of  justice and equity the strictness of law and the opinion of foreign writer all  concur in favour of the plaintiff sir Richard Lloyd for the defendant the  insurer agree to Mr williams general principle and that the insurer be liable  for all loss during the course of the voyage but he deny Mr williams  conclusion and insist that this policy be certain confine to loss at sea  whereas this loss be a loss on shore this be a policy upon the body of a ship  and therefore be manifest confine to loss at sea only beside these good be  aver by the very declaration itself to have be carry on shore and its be a  insurance out and home do not interfere with this position as to the  supposition that the ship have be burn and the sail c save it be no argument  at all f or if they have not be lose the insurer can not certain have be  liable to pay for they as to the prudence of some of the breach be so assign  burrow er p the captain it may be prudent with regard to the owner but this  care of they be not to affect the insurer he be indeed to act his best for  both but to visit to look upon and not to serve the one at the risk of the  other as to the word of the policy he deny it to be within they refer himself  to the word themselves the case cite do not affect the present case and  foreign writer have say no more than English one for no doubt the insurance  must be understand to be in the usual course of trade and durante journey but  the question be what be the iter insure burrow this be a common policy of  insurance in the old and ordinary form and it must be understand as these  policy be understand before the eastindia company have a be and the intent of  it must be collect from the instrument itself now this be a insurance of the  ship with its tackle and furniture c from port to port and policy must be  construe upon the word of they or from necessary consequence if any thing  beyond the natural import of the word be intend it ought to have be specify if  not specify it can be suppose the court alone be to judge of the extent of the  contract and these contract have be construe strict a deviation from the  particular voyage insure shall discharge the insurer unless a necessity  intervene which do and ought to alter the case but even that must be within  the compass of the voyage describe for if it happen after a deviation the  insurer be discharge even though the ship shall have return into the right  road again before the accident happen now this present accident do not happen  within the voyage insure for it happen at land but Mr William say this happen  in the course of trade my answer be that we have nothing to do with the course  of trade we have nothing to do with any thing but the course of navigation  which be quite a different thing the sail tackle c be insure in the ship and  if the captain take they out of the ship and put they any where else the  insurer be not answerable and its be for the benefit of the ship c make no  difference it do not arise from necessity much less from a necessity arise in  the voyage this act of mere prudence or convenience can affect the insurer and  their know this to be the course of the voyage will not prove that they mean  to insure any thing at land they can by their charter do it for that restrain  they from insure at land and therefore they certain never intend it as to the  case of Tierney v etherington p g it be not a common policy it be thereby  agree that they may unload c and reship into a English ship but no English  ship be there they unload upon a storeship and this be a peril at sea for the  ship be lose at sea so that it strict and proper be within the voyage and as  to its be the mode of reshipping in case no other ship be there hero be no  such agreement in the present case as be there insert in the policy so that it  be within the very term of the policy in that case he cite the case of  Fitzgerald v pole in p g in b r and afterward in dom proc in may which be a  insurance of a privateer for burrow four month and there the whole cruise be  by this court understand to be insure and the insurer be hold here to be bind  though the ship itself be safe and accord they give judgement for the  plaintiff but the house of lord hold they discharge as the ship be safe and  affirm the judgement of the exchequer Chamber who have reverse that of b r and  there be no inconvenience in my doctrine because whatever be by the party  particular mean to be insure beyond the general meaning of the word may be  special insert in the policy and then all will be clear and nothing leave to  uncertain construction Mr William in reply this fire happen during the course  of the voyage and this insurance be not mere upon the ship but upon the ring  sail tackle and furniture likewise which in their nature be capable of be  carry on shore and usual be so upon these occasion as be express state and  this be a loss happen in port it be the proper and the only port where the  English can clean and refit their ship and be upon a sandbank in the river be  a loss at sea not at land if the good can be remove from on board one ship to  another the reason of that must be that the insurer have have only that  particular ship in contemplation on which he insure and perhaps the care and  caution of the master of it too as well as the goodness of the ship burrow er  p this take out and deposit the ring sail and furniture be a necessary act and  be do by all the nation S in Europe except the Dutch who be state to consider  it as a disadvantage that they be not permit to do it and it be state to be  for the benefit of the ship and of the insurer and all concern and this be the  usual course of the voyage it be unnecessary to particularize or specify this  in the policy it must necessary have be in the contemplation of the insurer  and as to the company be be oblige by their charter not to insure on land the  merchant insure will they be not oblige to know this nor do the company in  fact practice it beside if they do it notwithstanding their charter they be  not the less bind to answer what they have undertake and indeed the charter  only mean to preclude they from insure house and building at land which be  quite another thing not ship at land as to the case of Fitzgerald v pole there  be no loss of the thing insure whereas here be a loss of the very thing insure  burrow Lord Mansfield say it be very necessary that the determination upon  policy of insurance shall be fix and certain and therefore they will consider  this matter and look into the case and then within the term give their opinion  cur advisare vult Lord Mansfield now deliver the opinion of the court he state  the case minutely and then the question which be whether this be a loss for  which the insurer be responsible within the intent and meaning of the  abovementioned policy of insurance by the express word of the policy the  defendant have insure the tackle apparel and other furniture of the ship  Onslow from fire during the whole time of her voyage until her return in  safety to London without any restriction her tackle apparel and furniture be  inevitable burn in china during the voyage before her return to London the  event then which have happen be a loss within the general word of the policy  and it be incumbent upon the defendant to show from the manner in which this  misfortune happen or from other circumstance that it ought to be construe a  peril which they do not undertake to bear from the nature object and utility  of this kind of contract consequence have be draw and a system of construction  establish upon the ancient and inaccurate form of word in which the instrument  be conceive the mercantile law in this respect be the same all over the world  for from the same premise the sound conclusion of reason and justice must  universal be the same hence among many other the follow rule have be settle if  the chance be vary or the voyage alter by the fault of the owner or master of  the ship the insurer cease to be liable because he be understand to engage  that the thing shall be do safe from fortuitous danger provide due mean be use  by the trader to attain that end burrow but the master be not in fault if what  he do be do in the usual course or necessary ex justice causan the insurer ill  estimate the price at which he be Willing to indemnify the trader against all  risk must have under his consideration the nature of the voyage to be perform  and the usual course and manner of do it every thing do in the usual course  must have be foresee and in contemplation at the time he engage he take the  risk upon a supposition that what be usual or necessary will be do it be  absurd to suppose when the end be insure that the usual mean of attain it be  mean to be exclude therefore when good be insure till land without express  word the insurance extend to the boat the usual method of land good out of a  ship upon the shore if it be usual to stay so long at a port or to go out of  the way the insurer be consider as understanding that usage bind v Gonsales  salk be so rule by ld Ch I holt if good be insure on board one ship to a port  and from thence on board another ship the first that can be get the insurance  extend through all the inter burrow er p mediate step of remove from one ship  to the other as usual for the mean must be take to be insure as well as the  end all this have be determine in the case of Tierney v etherington at  guildhall that march that be a insurance on good in a Dutch ship from Malaga  to Gibraltar and at and from thence to England and holland both or either on  good as here under agree beginning the adventure from the load and to continue  till the ship and good be arrive at England or holland and there safe land the  agreement be that upon the arrival of the ship at Gibraltar the good may be  unload and reshipped in one or more British ship or ship for England and  holland and to return one per cent if discharge in England it appear on  evidence that when the ship come to Gibraltar the good be unload and put into  a storeship which it be prove be always consider as a warehouse and that there  be then no British ship there two day after the good be put into the store  ship they be lose in a storm for the defendant it be insist that the insurance  be only upon the Dutch and British ship and that it burrow do not extend to  the storeship which be consider as a warehouse at land and so not a peril at  sea for the plaintiff it be insist that this be a loss in the voyage for the  policy be for all loss at Gibraltar as well as to and from if there have be a  British ship there and the good have be put into a light in order to go to the  British ship and lose in the way that will have be a loss within the policy we  have liberty to unload and reship and therefore have a liberty to use all the  mean in order to do that lee Ch I saidIt be certain that in construction of  policy the draw tight law or apex law be not to be lie hold on but they be to  be construe large for the benefit of trade and for the insure now it seem to  be a strict construction to confine this insurance only to the unload and  reshipping and the accident attend that act the construction shall be accord  to the course of trade in this place and this appear to be the usual method of  unload and reshipping in that place videlicet that when there be no British  ship there then the good be keep in store ship he add that where there be a  insurance on good on board such a ship that insurance extend to the carry the  good to shore in a boat so if a insurance be of good to such a city and the  good be bring in safety to such a port though distant from the city that be a  compliance with the policy if that be the usual place to which the ship come  therefore as here be a liberty give of unload and reshipping it must be take  to be a insure the good under such method as be proper for the unload and  reshipping here be no neglect on the part of the merchant the insure for the  good be bring into port the that and be lose the d November this manner of  unload and reshipping be to be consider as the necessary mean of attain that  which be intend by the policy and seem to be the same as if it have happen in  the act of reshipping from one ship to the other and as this be the know  course of trade it seem extraordinary if it be not intend this be not to be  consider as a suspension of the policy during the unload and reshipping from  one ship to another for as the policy will extend to a loss burrow happen in  the unload and reshipping from one ship to another so any mean to attain that  end come within the meaning of the policy and accord a verdict be give for the  plaintiff in the easter term follow a new trial be move for but it be refuse  by Lord Ch I lee Mr I chapel and Mr I denison Mr I wright indeed be of a  different opinion namely that it be a removal at the peril of the insure so in  the present case the same reason will hold and in general what be usual do by  such a ship with such a cargo and in such a voyage be understand to be refer  to by every policy and to make a part of it as much as it be express the usage  be foresee be more strong allow to be do than what be leave to the master  discretion upon unforeseen event yet if the master ex justice causan ut above  burrow er p go out of the way as to refit or to avoid enemy pirate c the  insurance continue upon these principle it be difficult to frame a question  which can arise out of this case as state the only objection be that they be  burn in a banksaul and not in the ship upon land and not at sea or upon water  and be appertinent the ship loss and danger ashore can not be include the  answer be obvious first the word make no such distinction dly the intent make  no such distinction many accident may happen at land even to the ship suppose  a hurricane to drive it a mile on shore or a earthquake may have a like effect  suppose the ship to be burn in a dry dock or suppose accident to happen to the  tackle upon land take from the ship while accidental and occasional refit as  on account of a hole in its bottom or other mischance these be possible case  but what may arise from a accidental occasion of refit the ship be not near so  strong as a certain necessary consequence of the ordinary voyage which the  party can not but have in their direct and immediate contemplation here the  defendant know that the ship must be heel burrow clean and refit in the river  of canton they know that the tackle c will then be put in the banksaul they  know it be for the safety of the ship and prudent that they shall be put there  have it be a accidental necessity of refit the master may have excuse take  they out of the ship ex justice causan but describe the voyage be a express  reference to the usual manner of make it as much as if every circumstance be  mention be the chance vary by the fault of the master it be impossible to  impute any fault in he be this like a deviation No it be ex justice causan  which always excuse and yet sir Richard Lloyd be press in this argument be  oblige to insist that it resemble a deviation which determine the insurance  and discharge the insurer answer this suppose the party to insure from London  and back again know that the policy will be determine in the river of canton  which will be absurd beside it ought to make a difference in the prize yet the  underwriter have all keep the premium upon other china voyage one objection be  form by compare this case to that of change the ship or bottom on board of  which good be insure which the insure have no right to do answer there the  identical ship be essential for that be the thing insure but that case be not  like the present another objection be that policy ought to be construe strict  and not to be extend to case omit which latter position be true and must he  agree AnswerBut that be not the present case for this be not a casus to let go  but clear within the view and good fide intent of the policy the case of  Fitzgerald v pole be no way applicable to the present the question there be  whether it be a partial or a total loss within the meaning of the policy in  that case there be nothing fix by usage or by know and establish construction  as there be in this case so that no inference can be draw from that case  conclude to this here the defendant know that the tackle and furniture will be  put in this banksaul as the usual certain consequence of the voyage at sea  which always make it necessary to heel clean and refit the ship in the river  burrow of canton have the insurer be ask they must for their own sake have  insist they shall be put there as the best and safe method they will have have  reason to complain if from their not be put there a misfortune have happen in  that case the master will have be to blame and by his fault will have vary the  usual chance they have take a price for stand in the plaintiff place as to any  loss he may sustain in perform the several part of the voyage of which this be  know and intend to be one burrow er p therefore we all of we who hear the  argument be very clear of opinion that in every light and in every view of  this case in reason and justice and within the word intent and meaning of the  policy and within the view and contemplation of the party to the contract the  insurer be liable to answer for this loss wherefore per cur let the postea he  deliver to the plaintiff