1831. MOUNT บ. LARKINS. vessel did not arrive at Sincapore in reasonable time. What is reasonable time ought to be determined, not by the jury, but by the Court; and how can the Court determine, when the insurer has engaged to insure from Sincapore, without stipulation for any time by which the vessel should arrive at that port? The Court cannot interpolate a warranty, which the insurer has not thought fit to require. Spankie Serjt. contrà. It is an implied condition in every contract of assurance, that the assured shall begin his voyage within a reasonable time, otherwise the insurer might never be exonerated from his risk; and if his risks do not regularly evolve, how is he to calculate his funds and conduct his business? Emerigon, c. 1. s. 3., lays it down, "La condition dépend de l'expédition maritime plutôt que de la volonté de l'assuré;" and in c. 13. s. 9., "Si le voyage est autre que celui qui a eté assuré l'assurance reste caduque." The application to the Court, under the law of France, to end the risk, proceeds on this principle; the arbitrium judicis supplying the place of the finding of the jury here as to what shall be a reasonable time; Potier, pl. 63. c. 1. s. 2.; a question which cannot be determined in any other way when there is no express stipulation on the subject. Emerigon (c. 13. s. 10.) discusses the lawfulness of undertaking another voyage pending the insurance. After citing two old cases in which it had been decided by the French Courts that such voyage might lawfully be undertaken, he observes: "Mais cette jurisprudence était contraire au principe établi dans la précédente section, et à la doctrine de tous nos auteurs, qui nous apprennent que si, avant que le voyage assurée soit commencé, le capitaine en entreprende un autre, l'as surance surance est nulle, et la prime doit être restituée." To commence the voyage insured within a reasonable time is, therefore, a condition in the contract; and all conditions, for the performance of which no time is specified, must be performed within a reasonable time. Co. Lit. 208 a. Bothy's case (a), 5 Vin. Abr. Condit. (C. b.) pl. 11. A principle which pervades the whole of the law. Promises of marriage, notices of dishonour, and notices of abandonment, must be all attended to within a reasonable time; and what is a reasonable time is a question for the jury, subject to the direction of the Judge. Anderson v. Royal Exchange Assurance Company. (b) So when goods do not correspond with sample, they must be returned within a reasonable time. Parker v. Palmer. (c) In Ougier v. Jennings (d), where the question was, whether by usage, ships in the Newfoundland trade might make intermediate voyages before the policy attached, Lord Eldon said, "If the evidence leads to this, that the ship may make an intermediate voyage of several years, it is too dangerous for you to give it effect. If several ships belonging to a merchant arrive together at Newfoundland, and finding cargoes for some only, he bonâ fide sends the rest on an intermediate voyage, it seems reasonable." Thus putting it altogether upon the reasonableness of the time employed. And Vallance v. Dewar (e) proceeded on the ground that this usage was generally known. In Hull v. Cooper (g) it was held, that if a ship be insured at and from a certain place, where, in fact, she was not at the time, but arrived there after some interval, (but the fact was not communicated to the underwriters, who did not call for information on the (a) 6 Rep. 31. (c) 4 B. & A. 389; (d) 1 Campb. 505. note. (e) 1 Campb. 503. (g) 14 East, 479. 1831. MOUNT V. LARKINS. 1831. MOUNT V. LARKINS. subject,) it was a question for the jury, whether the delay which intervened materially varied the risk. In Smith v. Surridge (a) Lord Kenyon said, "that if there was a voluntary delay on the part of the plaintiff, there was no doubt it would avoid the policy. And in Hartly v. Buggin (b) Lord Mansfield considered delay as a quasi deviation, because it places the underwriter in a different position. Beckwith v. Sidebotham turned only on the necessity of a certain communication, and does not affect the present question. Taddy. Hartly v. Buggin, Driscol v. Pasmore (c), Smith v. Surridge, Ougier v. Jennings, and Vallance v. Dewar, are cases either of deviation, or of alleged delay after the commencement of the risk, and do not apply where the question is, whether delay before the risk attaches, will avoid the contract. But in Hull v. Cooper, as in Beckwith v. Sidebotham, Lord Ellenborough decides that it rests with the insurer to ascertain or fix when the risk shall commence. The authorities to shew that a condition must be performed within a reasonable time are equally inapplicable, for the question here is, whether the condition exists in the contract, and if not, whether the Court can interpolate it. Emerigon in discussing the question of an intermediate voyage, only proposes to shew that the insurance must be confined to the voyage contracted for: the period at which the risk is to commence must be left to the parties contracting, and ought not to be fixed by the interposition of a court. Time is not of the essence of the policy, and the insurer may always protect himself by enquiry and stipulation. Besides, the delay here, was on the outward voyage, with the conduct of which the underwriter had no concern. (a) 4 Esp. 25. (b) 1 Park Ins. 513. Cur. adv. vult. (c) 1 B. & P. 200. TINDAL C. J. This was the case of an action brought upon a policy made at London on the 28th of February 1824, upon the ship Aquila, "at and from Sincapore and Batavia, both or either, to the ship's port or ports of discharge in Europe, not to the northward of Hamburgh, with liberty to call at Cowes for orders." A liberty was also given in the policy "to sail to, touch and stay at any ports or places whatsoever and wheresoever, particularly at the Cape of Good Hope, St. Helena, or elsewhere, to load, unload, and reload goods and passengers or otherwise, and for all or any other necessary purposes whatsoever." The policy was declared to be on freight, and the freight, valued. The declaration then stated a total loss of the ship while proceeding on the voyage from Sincapore to London, being the voyage mentioned in the policy, by the perils of the sea, whereby the freight became wholly lost to the Plaintiff. Upon the trial of the cause the jury found a special verdict, of which the only facts material for the consideration of the question which has been argued before the Court, are the following: - That the policy was made on the 28th of February 1824, at which time the ship was at Hobart's Town, Van Diemen's Land. That the ship sailed from England in the beginning of September 1823 under a charterparty, by which the ship, after discharging her cargo at New Holland, was to proceed to Sincapore, from thence to Malacca and Penang, both or either, or to Batavia only, to take on board a cargo for Europe. The special verdict, after stating the course of the ship's voyage from England to the Cape of Good Hope, to Hobart's Town, to George Town in Van Diemen's Land, and to Sydney in New Holland, found that she arrived at Sincapore on the 30th of March 1825, where the risk intended to be insured against was to commence. It then stated the sailing 1831. MOUNT V. LARKINS 1831. MOUNT บ. LARKINS. on the voyage homeward, and the total loss. And after setting out many particular instances of delay in the course of the voyage on the part of the captain, there is an express finding by the jury, "That there was unreasonable and unjustifiable delay between the making of the said policy of assurance and the commencement of the risk intended to be insured against." Upon this special verdict it has been argued before us on the part of Defendant, that the unreasonable and unjustifiable delay on the part of the captain in completing the outward voyage on which he was then engaged, and commencing the homeward voyage on which the risk was intended to attach, discharged the underwriters from this policy; and we are of opinion that such unreasonable and unjustifiable delay on the part of the insured, in commencing the voyage insured against, is in the nature of a deviation, and does amount to such an alteration of the risk insured against, as to discharge the liability of the underwriters upon this policy. That an unreasonable delay in commencing the voyage insured against, after the policy has actually attached, discharges the underwriter from the policy, appears, not only from the reason of the thing itself, but from the opinion of Lord Kenyon in Smith v. Surridge. (a) In that case, the ship Resolution being insured" at and from Pelew to London," it was proved she remained a considerable time at Pelew to complete her repairs before she commenced her voyage. An objection was taken, that such delay avoided the policy; and Lord Kenyon said, "If there was any unreasonable delay on the part of the insured, there was no doubt it would avoid the policy:" though he afterwards' observed, "the delay in that case was not a voluntary delay, nor such as amounted to a discharge of the policy." (a) 4 Esp. 25. |