Messrs. W. A. Joyce and Son may be liable or responsible to the owners thereof, or others interested. It is agreed that the amount of each underwriter's liability shall not exceed the amount of his subscription.

This policy was subscribed by different underwriters for different sums amounting in the whole to 20007.

3. The defendant underwrote the said policy for 1007., and received by way of premium the sum of 31. 10s. A fac simile copy of the policy accompanied this case, and formed part thereof.]

4. On the 7th Dec. 1869, and during the continuance of the risk covered by the said policy, a loss, damage, and accident within the meaning of the said policy happened to goods carried by the plaintiffs as lightermen as aforesaid, in a certain craft called the Lord Cardigan, and for which loss, damage, and accident the plaintiffs have become liable and responsible to the owner and others interested in the said goods to the sum of 11001., and have paid that amount.

5. It is agreed that the total value of the risks of the plaintiffs in this and other barges employed by the plaintiffs at the time of the loss, and which were covered by the policy, amounted to the sum of 20,000l. and upwards.

6. The total value of the goods in the barge Lord Cardigan at the time of the loss was 29061.

7. The plaintiffs contend that upon the true construction of the policy they are entitled to be indemnified for the loss actually sustained, namely, 11001., and to recover from the defendant 551. for his proportion of such loss.

8. The defendant contends that, under the policy sued on, the plaintiffs are only entitled to recover from the defendant such a proportion of their loss as the sum for which the defendant subscribed the policy, namely, 1007., bears to the total value of all the goods on board all the plaintiffs' craft, which were between the limits mentioned in and which were covered by the policy at the time of the loss before mentioned, and have paid into court the sum of 6., which is admitted to be sufficient to satisfy the plaintiff's claim, assuming this contention to be correct.

9. The defendant further contends that in any view the plaintiffs are not entitled to more than such proportion of the loss as 100l., the sum insured, bears to the total value in the barge-viz., 29067.

10. The court is at liberty to draw all inferences of fact which a jury ought to have drawn.

The question for the opinion of the court is which of the principles above referred to is the proper principle upon which the amount to be recovered ought to be settled.

If the court should be of opinion that the plaintiffs are only entitled to recover such proportion of the loss as 1001. bears to the said total amount at risk-namely, 20,000l.-then judgment is to be entered for the defendant with costs of defence.

If the court should be of opinion that the plaintiffs are entitled to recover such a proportion of the loss as 1001. bears to the total value of the goods in the barge, then judgment is to be entered for the plaintiffs for 311. 198. 3d., in addition to the sum of 61. paid into court with costs of suit; and if the court should be of opinion that the plaintiffs are entitled to recover the proportion of the actual loss, as contended for by the plaintiffs, jndgment is to be entered for the plaintiffs for the sum of

[Q. B.

491., in addition to the 61. paid into court, with costs of suit.

If the court should be of opinion that the plaintiffs are entitled to recover either the 371. 19s. 3d. or the 551., the plaintiffs claim in addition such interest as the court may think fit to allow.

The

Quain, Q.C. (with whom was A. L. Smith) for the plaintiffs. This case is peculiar, and turns upon the peculiar language of the policy. The policy is in the ordinary form, but at the end it contains the words to cover and include all losses, damages, and accidents, amounting to 201. or upwards in each draft to goods carried by Messrs. W. A. Joyce and Son, as lightermen, or delivered to them to be waterborne, either in their own or other craft, and for which losses, damages, and accidents, Messrs. W. A. Joyce and Son may be liable or responsible to the owners thereof or others interested." intention was clearly to cover all the risks which the plaintiffs ran in the course of their business as carriers of goods on the river. The only case which is at all similar to the present is that of Crowley v. Cohen (3 B. & Ad. 478), which the defendant will probably rely on. There the plaintiffs, carriers on a canal, effected an insurance for twelve months upon goods on board of thirty boats named between London, Birmingham, &c., backwards and forwards. The insurance was agreed to be 12,000l. on goods, as interest might appear thereafter; the claim on the policy warranted not to exceed 1001. per cent., and 50001. only was to be covered by the policy in any one boat on any one trip, the premium being 30s. per cent. It was held that upon the loss of goods on board one of the boats the assured was entitled to recover that proportion of such loss which 12001. bore to the whole value of the goods afloat at the time, and not the proportion of 1200l. to the whole amount carried during the year. The present case is, however, distinguishable from that; for there the risk covered by the policy was the ordinary marine risk, whereas here it is all risk which the plaintiffs might run as carriers of goods on the river. The words written at the foot of the policy in the present case distinguish it from all reported cases. Lord Tenterden, C. J. in the case referred to said: "As to the mode of calculating the indemnity, the defendant insists that this is to be done by ascertaining the proportion which 12001. bears to the whole value of goods carried during the year, and allowing the assured such a proportion of the amount of loss. But the rule of calculation relied on by the defendant is never adopted in cases of policy on goods with liberty to change the cargoes. Here the whole value of the goods afloat at the time of the loss must be taken, and the plaintiffs will recover such a proportion of their loss as 12,000l. bears to the value of all the property on board all the boats at the time of the accident, if that value exceed 12,000l., if not, they will be entitled to the whole amount lost." This has no application to a policy such as the present, which is more like a fire policy. In Wilson v. Jones (14 L. T. Rep. N. S. 65; 15 L. T. Rep. N. S. 669), where the question was whether the policy, which was effected on a submarine cable by a shareholder in a telegraph company, was to be construed as an ordinary marine policy, or as a policy on the undertaking of successfully laying down the cable, the court adopted the latter construction of the instrument, although the body of the policy was in the ordinary form of a marine insurance. Martin, B., in delivering the judgment of the court

Q. B.]

below, said: "The contract is partly written and partly printed, and the agreement between the parties is to be ascertained by the words of it. The circumstance that it is upon the printed form which is usually adopted for a common marine policy, is wholly immaterial if the language used and adopted by the parties shows that the insurance extended further than marine policies ordinarily do." These observations are strictly applicable to the present case; and it is submitted that the plaintiffs are entitled to recover from the defendants.

Sir G. Honyman, Q.C. (with him Watkin Williams) for the defendant. A policy of marine insurance differs from a fire policy. In the latter case the whole loss sustained must be made good by the insurer; whilst in the former the proportion which the amount for which each underwriter has subscribed bears to the whole risk must be calculated. The amount to be paid does not depend on the number of underwriters who have subscribed the policy; it depends on the proportion which the amount for which each subscriber underwrites, bears to the whole amount stated in the policy, in the case of a valued policy, or to the whole value of the goods in the case of an open policy. The mention of the sum of 20007. in the policy is only for the purpose of fixing the amount of stamp duty. There was nothing to hinder the plaintiff's from getting insurances from any number of other underwriters. The question, no doubt, is one of construction, but there was no intention to alter the ordinary degree of liability which each underwriter undertook; and that, in the present case, is the proportion which 1007. bears to the value of all the goods on the plaintiffs' barges at the time of the loss, viz., 20,0007. [Lush, J.-Suppose the intention was to insure the plaintiffs against their ordinary possible losses as carriers, what other words than those written at the foot of this policy could be chosen ?] Those words seem to have been inserted in place of the ordinary memorandum clause, protecting the insurers from liability under 5 per cent., which might be inconvenient in the case of goods of a fluctuating value. This case cannot really be distinguished from that of Crowley v. Cohen (ubi sup.); the object and intention of the assured are the same in both cases. The assured in that case was also a lighterman who effected a policy to cover the risk which he ran as a lighterman, and yet the underwriters' liability was determined by the ordinary principle applicable in cases of marine insurance. When the amount of the premium paid to the defendant in the present case is looked at, it cannot be supposed that for such a consideration he would undertake the liability with which he is now sought to be charged.

Quain, Q.C., in reply.-If the defendant's contention be correct, no efficacy whatever will be given to the words inserted at the foot of the policy.

MELLOR, J.-Our judgment must be for the plaintiffs. It seems to me that the policy in this case is not properly described as a marine policy. It is an instrument by which one of the parties indemnifies the other against any liability which he may incur as a carrier with respect to the owners of the goods carried, and we must construe the words in their ordinary meaning. The undertaking is, in the words of the instrument, "to cover and include all losses, damages, and accidents, |

[C. P.

amounting to 201. or upwards, in each craft, to goods carried by Messrs. W. A. Joyce and Son as lightermen, or delivered to them to be waterborne, either in their own or other craft, and for which losses, damages, and accidents, Messrs. W. A. Joyce and Son may be liable or responsible to the owners thereof or others interested." It appears to me that the meaning of these words, on the face of them, is that contended for by Mr. Quain. The case is entirely distinguishable from those which have been relied on for the defendant; and, indeed, I think none of the cases which have been referred to throw any light upon the present case. There is no reason whatever why the parties should not enter into a contract to give indemnity against such losses as the plaintiffs might sustain as lightermen. It is suggested that no man in his senses would contract to indemnify against such a risk for the premium charged; but I confess I do not see the matter in that light at all. The consideration of the amount of premium paid does not aid us in construing the contract between the parties.

LUSH, J.---I am of the same opinion. This is an exceptional policy, and we have only to collect from the language of the parties what it was which they intended. Now I cannot doubt, looking at the position of the plaintiffs, who are carriers on the river, that what they wanted was to be secured against any loss which they might sustain as such carriers; and I cannot interpret the contract in any other sense than this-that the defendant undertook to be liable to the plaintiffs for all the loss for which they would be responsible to the owners of the goods carried. That is the very language of the policy; and I cannot entertain a doubt that that was the intention of the parties. It is not an ordinary marine policy, but a policy of a mixed nature, the object of which was to secure to the plaintiffs an indemnity to the extent of the sum subscribed for, or for any loss which they might sustain during the year by reason of their being responsible as carriers for the loss of the goods.

HANNEN, J.-I am of the same opinion. Judgment for the plaintiffs. Attorneys for plaintiffs, Plews and Irvine, Attorneys for defendant, Parker and Clarke.

COURT OF COMMON PLEAS. Reported by H. H. HOCKING and H. F. POOLEY, Esqrs., Barristers-at-Law.

Tuesday, Jan. 30, 1872.

OTHERS

BYRNE AND OTHERS AGAINST THE GUANO CONSIGNMENT COMPANY (defendants); WEGUELIN AND (trading as THOMSON, BONAR, and Co.), (garnishees).

Lord Mayor's Court-Foreign attachment-Freight -Prohibition.

Where process had issued out of the Lord Mayor's Court against garnishees, and, on cause being shorn against a rule for a prohibition, it appeared that the claim against the original defendants was for extra freight due on a charter party in respect of a voyage from the Chincha Islands to the Victoria Docks (not within the city of London), and that neither the defendants nor the garnishees resided within the city of London,

Held, that the prohibition must issue, although, by

5. That the plaintiffs' cause of action arises from the nonpayment in London by the said Messrs. Lloyd, Lowe, and Co. of the balance due for freight.

6. That the said plaintiff, A. B. Forwood, is a member of Lloyd's, and carries on business there as an underwriter (within the jurisdiction of the said Mayor's court of London), and has done so for six years past. That the said Arthur Bower Forwood is also senior partner in the said firm of Leech, Harrison, and Forwood, who carry on the business of merchants in the city of London, and within the jurisdiction of the said Mayor's court, and I say that it is well known to the said Messrs. Lloyd, Lowe, and Co., the said Messrs. Thomson, Bonar, and Co., and to the said W. Slee Wellborne, that the said plaintiff A. B. Forwood is such partner of the said Leech and Co., and does carry on business as aforesaid.

7. That the proceedings taken, in this matter in the Mayor's Court have been taken under advice of counsel, because the plaintiffs are advised that the garnishees are not personally liable on the said charter-party, and the said garnishees, who alone represent the defendants in this country, refused through their attorneys to appear for the said company to an action which had been brought by the plaintiffs against the said company.

Affidavit of George Lucas.

1. That I have had the conduct and management of the action hereinafter referred to, and of the action abovementioned, and the proceedings in foreign attachment in the Mayor's Court of London in relation to such action on behalf of the above-named plaintiffs.

3. That I am informed and believe that the said Messrs. J. Thomson, Bonar and Co. are the only representatives of the said Guano Consignment Company in this country, and carry on its business here at Old Broad-street, in the

City of London, within the jurisdiction of the said Mayor's

Court of

12. That in case this honourable court should interfere by prohibition to stay the said action in the Mayor's Court aforesaid, in my judgment and belief the said plaintiff's would be remediless, inasmuch as the plaintiffs do not, except through the mode of attachment against the said Messrs. Thomson, Bonar and Co., possess any means of procuring the appearance of the defendants, the company, to any action in respect of the plaintiff's claim.

13. That this action is brought in the names of the above-named plaintiffs, inasmuch as they are the regis tered owners of the ship Talisman. That the said plaintiff, A. B. Forwood, is a member of Lloyd's, and carries on business as an underwriter there.

14. That the said A. B. Forwood is also the senior member of the firm of Messrs. Leech, Harrison, and Forwood, and carries on business there as a merchant, and within the jurisdiction of the said Mayor's Court of London.

Cohen showed cause. He cited: Mayor of London v. Cox (L. Rep. 2 H. of L. 239.) (The purport of his argument will sufficiently appear from the judgments.)

Shiress Will, in support of the rule, was not called upon.

WILLES, J.-We are all of opinion that a prohibition should issue. In the case of The Mayor of London v. Cox, the judges advised the House of Lords that the claim of jurisdiction in the Lord Mayor's Court could not be supported, because the cause of action did not arise within the jurisdiction, and it did not appear that the garnishee was more than a mere passenger within the jurisdiction. The present case rests upon the same footing, and the same reasoning is applicable to defeat the attempt made to set up jurisdiction. Such process, if held to be good, might, as there suggested, be a means of extreme annoyance and injury to strangers and foreigners. But it has been argued here that by custom these claims are within the jurisdiction, and that custom may give to an inferior court a right beyond its limits. This argument was noticed and refuted in the above case. The custom of foreign attachment, like other customs, must be

[Ex.

local in order to be valid, and a custom which transgresses the local limits is incongruous and therefore void. Then it is further said that the course of proceedings is such that it is not necessary to show that the cause of action arose within the jurisdiction. But in inferior courts there is no presumption in favour of jurisdiction. This claim falls within the rule laid down by Patteson, J., in Williams v. Gibbs (5 Ad. & Ell. 212): "The consideration, therefore, must be within the jurisdiction. To show, therefore, that the action is maintainable, it must be shown that the consideration arose within the jurisdiction." It has also been argued that the breach is non-payment of freight, and that the payment of freight was to be made in London. This does not end the matter; for there was also the consideration which consisted of the carriage of the goods from the Chincha Islands to this country. Mr. Cohen further adduced the ingenious argument that freight is due for delivery only, and not for carriage; but this is of no avail, because the delivery was at the Victoria Docks, which are not within the city of London. The cause of action must arise within the jurisdiction, and the term cause of action" cannot be restricted to the mere contract or to the making of the promise. The general rule with respect to inferior courts is, that every part of the cause of action should appear to be within the jurisdiction of the court: (Thom v. Ch Chinnock, 1 M. & G. 220; Peacock v. Bell, 1 Wms. Sandars, 74a.)

66

BYLES, J.-I am of the same opinion. I think the prohibition should issue, because the whole cause of action did not arise within the jurisdiction of the Lord Mayor's Court.

BRETT, J.-I am of the same opinion. When the Lord Mayor's Court has jurisdiction, a particular mode of enforcing it may be adopted by seizing the goods of a garnishee; but the whole cause of action must take place within the city of London. Even if the delivery had been in London, that is not the whole consideration for the payment of the freight. The cause of action, therefore, not being within the jurisdiction, the prohibition ought to go. GROVE, J.-I am of the same opinion.

Rule made absolute. Attorneys for the plaintiffs, Flux and Co., 3, East India Avenue.

Attorneys for the garnishees, W. and H. P. Sharpe, Old Broad-street.

COURT OF EXCHEQUER. Reported by H. LEIGH and T. W. SAUNDERS, Esqrs., Barristers-at-Law.

May 30 and 31, 1871, Jan. 17, 1872. HARRISON v. BANK OF AUSTRALASIA. Ship and shipping-General average-Cost of pumping ship-Donkey engine and fuel. A sailing ship sailed from Melbourne to London with cargo on board. The ship was in every respect properly manned and fitted for such a voyage, and had on board a sufficient quantity of coals for an ordinary voyage to work the donkey engine, with which she was furnished, and by means of which she was pumped whenever necessary. In consequence of the uses to which the donkey engine was applied, the number of the crew was ten less than it would have been if no donkey engine had been carried.

Ex.]

The ship having encountered a cyclone sprang a leak, and was only prevented from sinking by constant pumping with the donkey engine.

The coal having been much reduced in consequence of the excessive pumping, the captain was obliged to use as fuel the spare spars and ship's stores. Without the use of the donkey engine the ship could not have continued on the voyage. Held (per Kelly, C.B., and Bramwell, B., dissentiente Martin and Cleasby, B.), that the value of the spars and ship's stores was the subject of general average, and that there was such a certainty of destruction within a short space of time, nnless prevented, as to make the peril imminent. Per Martin and Cleasby, BB.-That by the terms of the contract the shipowner was bound to deliver the cargo safely; and that as the donkey engine was provided for the purpose of saving the seamen's wages, the owner must take the risk of any loss caused by his having shipped an insufficient quantity of fuel; and also that the ship never was in such imminent peril of total loss as to fulfil the requisites of a case of general average. THIS was an action brought by the plaintiff as owner of the ship Champion of the Seas, to recover from the defendants the sum of 951 88. 10d., as a contribution in general average due from them as owners of four boxes of gold, part of the cargo of the ship, on her voyage from Melbourne to London.

The defendants pleaded payment into court of the sum of 511. 68., as sufficient to cover the plaintiff's claim, and on this plea issue was joined.

The action came on for trial at the sittings a‡ Nisi Prius, held at Guildhall on the 7th July, 1869, before the Lord Chief Baron of the Exchequer, when it was ordered that a verdict be entered for the plaintiff for the damages in the declaration, subject to a special case.

The following special case has been stated under the said order :

1. The plaintiff is a ship owner, and was in the year 1868 owner of the British sailing ship Champion of the Seas, of 1946 tons registered measure

ment.

2. The defendants are bankers, carrying on business at Melbourne, in Australia, and also in the City of London.

3. In Feb. 1868, the ship was at Melbourne aforesaid, bound on a voyage from that port to London.

4. The defendants shipped four boxes of gold, to be conveyed by her to London, and a bill of lading, in the usual form, dated on or about the 28th Feb. 1868, was signed for the four boxes of gold, by Outridge, the master of the ship, for the voyage.

5. The ship sailed from Melbourne, on her voyage, on the 29th Feb. 1868, laden with a very valuable cargo of general merchandise and specie, being in every respect properly fitted and manned for the voyage, and having on board a sufficient quantity of coals for an ordinary voyage.

6. The ship was furnished with a donkey engine of eight-horse power. It was adapted for loading and discharging cargo, for hoisting sails and taking them in, and for pumping the ship. It was, according to the evidence of the captain, equivalent for the purpose of working the ship during the voyage to a crew of ten men, and had the donkey engine not been on board, the vessel would have required an additional crew of that number.

7. From the saving of labour and the reduction

[Ex.

of the number of the crew effected by the use of a donkey engine, it is sometimes called a steam

crew.

8. It is usual for such a ship as the Champion of the Seas, on the voyage from Melbourne to England, to be furnished with a donkey engine which is used for pumping the ship when necessary. 9. The ship sailed from Melbourne on the 29th Feb. 1868, and up to 16th March experienced ordinary weather, and whatever pumping was necessary was done by the crew; on the 10th March the ship encountered a severe cyclone followed by very bad weather which caused her to strain and make much water. The water in the hold at times increased to five feet, and could only be kept down by constant pumping. At first the pumping was done by the engine during the day and by the crew during the night, but it afterwards became necessary to keep the donkey engine pumping constantly. With the donkey engine the pumps were got to suck now and then.

10. There was no sudden emergency rendered the cutting up of the spars and wood, but it would have been impossible to have kept the ship afloat with the crew alone without working the donkey engine. After April 1st the weather moderated, but the vessel continued to leak; and about the 16th April the supply of coals was reduced to about one and a half tons, from the constant working of the engine. It was necessary to keep the engine at work, and the captain, after consultation with the first and second officers in order to obtain fuel, directed that some spare spars and wood, which was part of the ship's stores and not intended to be used as fuel, should be cut up to use with the coals.

11. Wood alone would not have sufficed to get np the steam necessary to work the engine, and the captain acted prudently and judiciously for the preservation of the ship and cargo in obtaining fuel by cutting up the spars and wood to use with the coals.

12. The fuel so procured was not sufficient to keep the engine at full work; and, notwithstanding the efforts of the crew, who were occasionally assisted by some passengers in working the pump, the water in the hold slowly increased.

13. On the 25th April it was discovered that a bolt under the port fire channels, and 6ft. or 7ft. below the water, had been started; whereupon the master of the said ship lowered a boat and stopped it with grease, and on the 27th caused a stage to be rigged, and by means of wedges and plugs succeeded in partially stopping the leak.

14. On the 5th May the ship fell in with the barque Peru, and obtained from her thirty-three bags of coals. With this supply the engine was put to full work, and the water in the hold greatly reduced.

15. In order to procure a further supply of coals the master determined to run into the port of Pernambuco, and the ship anchored at Pernambuco on the morning of the 16th May.

16. The ship could not have been repaired at Pernambuco, and the captain, having obtained a large supply of coals, viz., thirty tons, proceeded on the voyage. The captain in so doing acted prudently. The ship was exposed to no serious risk from the water she made while there was sufficient fuel on board to work the donkey engine.

17. The vessel continued to leak during the remainder of the voyage, and it was necessary to keep the engine constantly at work at the pump.