H. L. (E.) 1876 v. MORICE. were by him appointed to be stored, and his hiring of the vessel was the same as would have been his hiring of a warehouse on ANDERSON shore for the purpose of receiving his goods. It was the same thing whether the goods were to be delivered to the purchaser himself, or to a wharfinger whom the purchaser had specially appointed to receive them. It need not be shewn that the purchaser was bound, from the first, to take the goods; if he had the right to take them, and by his conduct shewed that he had exercised that right, they became his. He could exercise his right of option at any time, and he might exercise it as each portion came on board. The vendors could not have entered his ship to take away any portion of the delivered cargo. It made no difference that his payment for these goods was not to be made till the bills of lading and shipping documents were delivered; that was a mere delay in the time of making the payment, which did not affect his right or his liability. Payment for goods is not the only test of the goods having become the property of a purchaser. The only thing that could have released him from liability would have been the non-performance of the contract on the part of the vendors, and in that event he might have had an option to reject what had been sent, but the delivery of each bag of rice sent was, so far, a part performance of the contract by the vendor, and the acceptance of each bag of rice was, so far, an exercise of Anderson's option. The whole could not be put on board at once, and what was put on board and received on board became his property from that moment. The insurance attached from the arrival of the Sunbeam in the river at Rangoon, and the risk then began. Such was clearly the intention of the parties on entering into the contract, and the Appellant shewed the bona fides of that intention by at once insuring the rice. If the purchaser had a right to say to the seller, "I accept the rice sent me," he had equally the right to say to the underwriter, "I have accepted it, and it is my property, to cover which the policy has been executed." The insurance attached the moment the goods were on board; there was no waiting till the ship had got out to sea on the voyage. The words of the policy, "at Rangoon," shew that it was to attach during the loading on board. Even though the whole property has not been actually de livered, the risk of it may be that of the purchaser: Martineau v. Kitching (1). H. L. (E.) 1876 V. MORICE. This was not the purchase of an ascertained chattel, but of a ANDERSON cargo of rice, of rice to be delivered in bags, and each delivery of each bag was therefore, so far, a fulfilment of the contract, and the interest attached as that was done: Arnould on Marine Insurance (2); Turley v. Bates (3). Sparkes v. Marshall (4), Castle v. Playford (5), Joyce v. Swann (6), Langton v. Higgins (7), Seagrave v. The Union Marine Insurance Co. (8), Aldridge v. Johnson (9), Ebsworth v. The Alliance Marine Insurance Co. (10), Byrne v. Schiller (11), Hicks v. Shield (12), Mansfield v. Maitland (13), Lucena v. Craufurd (14), Hagedorn v. Oliverson (15), Cory v. Patton (16), and Carter v. Scargill (17), were also cited and commented on. Mr. Butt, Q.C., and Mr. Cohen, Q.C., for the Respondent : Insurance is a contract for indemnity-nothing more, and unless a person has an interest against the loss of which he requires to be indemnified, he cannot insure. Here there was no such risk. The loss, if any, occurred at the moment the ship sank. Could it be said that the Appellant had then lost anything? Certainly not. He had then no property in the goods-none had passed to him-the property was in the vendors; they had undertaken to deliver a "cargo" of rice. At the moment the ship went down, no cargo had been delivered-the vendors were only in the course of performing their contract, and, till they had performed it, the rice was at their risk. There was an act to be done by the vendors, and till done, there had been no performance of the contract, and no property passed: Blackburn, Contracts of Sale (18). (1) Law Rep. 7 Q. B. 436. (5) Law Rep. 7 Ex. 98. (8) Law Rep. 1 C. P. 305. (9) 7 El. & Bl. 885. (10) Law Rep. 8 C. P. 596. (11) Law Rep. 6 Ex. 20-319. See Allison v. Bristol Marine Insurance (12) 7 El. & Bl. 633. (13) 4 B. & A. 582. (14) 3 B. & P. 75; 2 N. R, 269. See also 1 Taunt, 325. (15) 2 M. & S. 485. (16) Law Rep. 7 Q. B. 304. (17) Law Rep. 10 Q. B. 564. (18) Page 151. 1876 V. MORICE. H. L. (E.) The vesting of the property is a question of intention, and the contract does not shew that there was any intention that the property ANDERSON should pass until the delivery of the cargo had been completed, nor perhaps, indeed, until the bill of lading and the shipping documents had been delivered, and the drafts in payment had been accepted. Now if only a few bags had been put on board, it could not be contended that the purchaser would have been bound to accept them as delivery of the cargo, and no difference in principle was made by the fact that instead of a few bags a great many bags of rice had been put on board. The Plaintiff was entitled to exercise an option as to what was sent in performance of the contract, and to exercise it up to the last moment of the delivery of a full cargo. But if so, till that full cargo had been delivered, and had been accepted, the property was not his, but that of the vendor, and was consequently not at the purchaser's risk: Appleby v. Myers (1). The case of Gilmour v. Supple (2) had been relied on in the Court below, but that was not a case of insurance, but merely one of a contest between vendor and vendee, in which the rights of third persons were not affected. The delivery here could not be said to be made into the ship of the Appellant: it was not his, he had not chartered it; he arranged with the vendors of the rice that they should put the rice on board that ship, and he was to pay a gross sum to the vendors of the rice, which was to cover the value of the rice and the sum which the vendors were to pay for the freight. The property could not be said to be delivered to him till it was delivered into his ship. There was a broad distinction between delivery of goods into his own ship and delivery of them into a ship merely chartered by another person for a voyage, and the freight for which was to be paid as part of the gross purchase-money of the cargo. That distinction was made clear by all the cases which related to stoppage in transitu, where delivery into a chartered ship, or to a railway company was not, as of course, deemed delivery to the vendee himself, but all the circumstances of the delivery were required to be considered. Putting the rice on board a ship which was at the time more the ship of the vendors than it was the ship of the Plaintiff, was not like putting the oil (1) Law Rep. 2 C. P. 651.` (2) 11 Moo. P. C. 551. 1876 MORICE. agreed to be sold, into bottles furnished for that purpose by the H. L. (E.) purchaser himself, as in the case of Langton v. Higgins (1), and did not constitute an appropriation of the rice to Anderson. ANDERSON How, then, if the property in the rice did not pass to the Plaintiff, could he be said to have an insurable interest in it. The rice might be his by contract, so far as he and the vendors were concerned, so as to enable him to sue on the contract, but their mutual relation in that respect would not be sufficient to affect the rights and liabilities of third persons. The property here did not pass; the bill of lading had not been delivered, but was to be handed over at a future time. Before that time arrived, and when no property was vested in him, and no risk cast upon him, the Plaintiff insured the cargo. But if he had no right in the cargo, and no interest in it, and no risk attached to it, the mere act of insurance could not give him one. Reliance was placed on the words of the contract; it was assumed that, without express words to pass the property it would pass and be at the risk of the buyer, on account of the implied effect of some words in the contract. Thus it was supposed that the words "bought" and "cost and freight" were sufficient to shew that the whole property in the subject-matter of the contract was in the buyer; but that was not so. The word "bought" was merely a common phrase used to shew that a dealing with respect to purchase and sale had taken place, but it did not shew that there had been a complete sale sufficient to pass the property; and the other words merely described what would be the amount of liability, and in what way that was to be measured, when the contract was actually carried into effect. But it is essential to shew that the insured had actually an interest at risk: Phillips on Insurance (2): Warder v. Horton (3). The risk went with the property. The act of insuring, immediately after the contract was made, had no effect whatever in shewing that that contract was to be taken as executed. The vendor's risk never began until after the day when the cargo which was the specific subject of purchase had been delivered, but none was ever delivered, for the ship sank before the delivery was complete. The words of the policy, therefore, (2) Chap. iii. sects. 172, 175, 181, 185. (3) 4 Binney, Pensylv. Rep. 529. (1) 4 H. & N. 402. 1876 v. MORICE. H. L. (E.) had here no application favourable to the Plaintiff, for they related not to a liability for part of a cargo, but for a cargo-a ANDERSON complete cargo. In Sparkes v. Marshall (1) and Joyce v. Swann (2) the Court thought that the property had passed, but as that was the very question here, those cases were inapplicable to the present. The principle by which all cases of this kind must be decided was laid down in Cutter v. Powell (3), and was fully elucidated in the learned notes to that case printed in Smith's Leading Cases (4). When this ship went down there was no liability on the part of the Plaintiff to pay for anything. If so, there was no interest in him of an insurable nature. Sir H. James replied. LORD CHELMSFORD : My Lords, the question to be determined upon this appeal is one of some difficulty, and it has given rise to a great diversity of judicial opinion. It may be thus shortly stated: whether the Appellant under a contract for the purchase of a cargo of rice, to be shipped in a vessel called the Sunbeam, had any property in the rice, or had incurred any risk in respect of it, so as to give him an insurable interest at the time of the total loss of the vessel and cargo? The contract for the purchase of the rice is in following terms:[His Lordship read it, see ante, p. 714.] If the intention of the parties is to be collected from the written contract alone, as payment was to be made only on the completion of the cargo, according to the case of Appleby v. Myers (5) until the cargo was completely made up no interest in it passed to the purchaser. But although the purchaser of a cargo may have no interest in it until a certain event, as for instance until delivery, he may, if he pleases, expressly take upon himself all risks and dangers of the voyage, as in Castle v. Playford (6), although without a stipulation to this effect he would not be affected by anything which might happen to the cargo in its transit to him. In the present case it is contended that, either under the (1) 2 Bing. N. C. 761. (2) 17 C. B. (N.S.) 84. (4) Vol. ii. p. 1. (5) Law Rep. 2 C. P. 651. (6) Law Rep. 7 Ex. 98. |