Imágenes de páginas
PDF
EPUB

feated but this fact will not of itself make the underwriters liable for a total loss. It therefore becomes necessary for the plaintiff to show that the abandonment has the effect of enabling them to recover as for a total loss. If the abandonment is to be viewed with regard to the ultimate state of facts as appearing before the action brought according to the opinion of the Court in Bainbridge v. Neilson, there has not, for the reasons already given, been a total loss. Doubts were expressed as to the propriety of the decision in Bainbridge v. Neilson, by a very high authority, in the case of Smith v. Robertson (a). But, notwithstanding these doubts, the rule laid down in Bainbridge v. Neilson was adopted and acted upon by the Court in the two subsequent cases of Patterson v. Ritchie (b), and Brotherton v. Barber (c). We consider the point to have been well settled, and the rule established by these authorities; and the rule to enter a nonsuit must therefore be made absolute" (d).

There was a very recent case in the Court of Common Pleas of Benson v. Chapman (e). It was an action of covenant on a policy of insurance, dated 12th July, 1839, made by the defendant, of "The Neptune Marine Assurance Company of London," on the ship The Lord Cockrane, “at and from Pernambuco to Liverpool." The insurance was declared on freight valued at 2000. The cause came on for trial at Guildhall, on the 1st July, 1842, before Mr. J. Erskine, when a verdict was taken, by consent, for the plaintiff, subject to the opinion of the Court upon the following case. "The declaration alleged a loss by perils of the sea. The ship, whilst coming out of the harbour of Pernambuco, struck on a reef, and thereby received such injury as rendered it necessary to put back for repair; the cargo was taken out, and the ship repaired at a cost of 7,132., including the charges of landing and reshipping the cargo. There being no other means for raising funds to pay for the repairs, the master

(a) 2 Dow. 474.
(b) 4 M. & S. 393.
(c) 5 M. & S. 418.

(d) See also Calogan v. London Assur. Comp. 5 M. & S. 447.

(e) 7 Scott's N. R. 625.

executed a bottomry bond, by which the ship, freight, and cargo for that sum, and her bottomry premium of 201. per cent. The ship afterwards sailed for Liverpool with her original cargo on board, and arrived there in safety. The plaintiff, as soon as he received intimation of the extent of the damage done to the ship, gave notice of abandonment of ship and freight to the respective underwriters, and repudiated the bond; whereupon the ship was taken possession by the parties claiming under the bond, and sold under an order of the Admiralty Court. At the sale, the ship produced 1,6757., which, with the freight earned on the homeward voyage, was paid over to the obligees.

Tindal, Chief Justice, now delivered the opinion of the Court. His Lordship, after stating the case, proceeded :"Upon this state of facts, we are of opinion that there was a total loss of freight at the time of the damage sustained by the ship; and that the plaintiff, having abandoned to the underwriters on freight, is entitled to recover for such total loss. That there was a constructive total loss on ship, seems not to have been made a question. It is unnecessary to cite authorities to prove that, where the damage to the ship is so great from the perils insured against as that the owner cannot put her in a state of repair necessary for pursuing the voyage insured, except at an expense greater than the value of the ship, he is not bound to incur that expense, but is at liberty to abandon, and treat the loss as a total loss. And there seems to be as little doubt that the assured has the right of abandoning the freight where there has been a total loss of the ship. The assured has sustained a total loss of the freight, if he abandons to the underwriters on ship, and is justified in so doing; for after such an abandonment he has no longer the means of earning the freight, nor the possibility of ever receiving it, if earned, such freight going to the underwriters on ship. In the present case, when the ship was at Pernambuco, the cargo taken out, and the damage to the ship very much exceeding her value, and as the owner had no means of completing, except at a ruinous expense, if

at that time, he abandons to the underwriters, as the law allows him to do, the freight is as much lost to him as if the ship had been captured, and placed altogether out of his control. The defendant's counsel admits that, if the master, instead of repairing the ship at Pernambuco, had sold her there, the loss both of the ship and freight would have been total: but he contends that, as he did not sell, but borrowed money and repaired the ship, which brought the same cargo to England and earned her freight, the not paying the money borrowed was the voluntary act of the shipowner, and which alone prevented him from receiving the freight; and that he had no right to make the loss total by his own voluntary act. But, in the first place, the arrival of the ship with the cargo is not of itself sufficient to deprive the plaintiff of his right to recover, if he gave notice of abandonment at the time when there was a total loss. The ship must not only arrive, but must arrive in such circumstances, as Mr. Justice Bayley expresses it, in Holdsworth v. Wise (a), that the assured may, if they please, have possession, and may reasonably be expected to take it.' In that case the ship had been deserted by the crew, acting bond fide for the preservation of their lives, and had been taken possession of by the crew of another vessel, who took her into port, repaired her, and brought her into England, but subject to a claim for repairs and salvage equal to or exceeding her value. The owner having abandoned before he knew of the safety of the ship, was not bound to take the ship, but entitled to recover for a total loss. In that case, also, the captain had granted a bottomry bond, and the ship was taken possession of on her arrival in England by the persons claiming title under the bottomry bond. The case, therefore, bears a very close resemblance, no less in principle than in all its circumstances, to the present; for here the owner, in England, had abandoned both ship and freight immediately on hearing the damage done to the vessel, and had never afterwards inter

(a) 7 B. & C. 794; 1 M. & R. 673.

fered with either: here, also, the master had repaired, giving a bottomry bond for the money borrowed: here, also, the ship is taken possession of by the persons claiming under such bond; and the charge far exceeds the value of the ship and freight. We think the case above referred to does, in principle, decide that before us. In the events which took place, there never was a moment at which the owner of the ship could have earned or received the freight, after the ship sustained her injury, except at a cost far exceeding the value of ship and freight. After the cargo was unshipped at Pernambuco, he could not put it on board again, without incurring the expense of repairs beyond the value of the ship and freight when the ship arrived in England, he could not receive the freight, without paying the amount of the bottomry bond. If the master had actually sold the ship at the time the damage was sustained, and the purchaser had brought her back and earned the freight, there is no doubt but that the owner could have recovered for a total loss after abandonment; and we see no substantial difference between his situation, under those circumstances, and the return of the ship pledged by a bottomry bond for her value. There seems no reason for holding that the act of the master in repairing, whilst the owner was ignorant of what was going on, should vary his rights, the case expressly finding 'that he never interfered in any way with freight or ship after the abandonment.' We, therefore, think that there should be a verdict entered for the plaintiff for 2,000l."

In the case, also, of Young v. Turing and Others (a), Lord Abinger, C. B., now delivered the judgment of the Court:"This was an action on a policy of insurance, at and from Rotterdam to Java and Sumatra, and back again to a port in Holland, upon the ship Eliza, valued at 8,000l. In the course of her voyage, she was stranded on the Goodwin Sands, and plundered. She was afterwards removed, and brought first to Ramsgate, and then to London. The un

(a) 2 Scott's N. R. 752.

First excep

tion.

derwriters had notice of abandonment. It appears by the evidence set forth in the bill of exceptions, that just before the time when the ship was cast away, she was worth 5,8331. sterling; that her value, as she lay, was 7007.; and that the salvage was 4201. Two English witnesses deposed that the expenses of repairing the ship in England would be 4,615.; that, if she had been entitled to a British register, she would have been worth, when repaired, from 4,500l. to 4,7007.; and that, if she had been a British ship, it would have been prudent for a British owner to repair her. Several Dutch witnesses stated that the expense of repairing her in Holland would have been far greater; and that her value, when repaired in Holland, would, at the outside, have been 2,9151. The defendant's witnesses do not materially vary this evidence; but witnesses were called to show that the trading companies in Holland will not employ a vessel that has been stranded in the manner in which this ship was stranded, however perfectly she might have been repaired; and that this circumstance affects her value in Holland.

The Chief Justice, in summing up, told the jury "that, in considering whether this was the case of an average or a total loss, they ought not to take into account the value in the policy. He also told them that in considering the same question, they ought to look at all the circumstances attending the ship, and to judge whether, under all those circumstances, a prudent owner, if uninsured, would have declined to repair the ship and, if so, they might find it a case of total loss.

"To this charge of the Chief Justice two objections were taken, and are made the subject of this bill of exceptions. The first is, that he ought to have told the jury that, in determining whether the loss was total, they ought to take into their consideration the estimated value of the ship in the policy.

"I am not aware of any case or principle in the law of insurance which makes the estimated value in the policy a circumstance on which the question of total or average loss ought to turn. The agreed value in the policy of the subject

« AnteriorContinuar »