Ship-Marine Insurance-Loss by Perils of the Sea-Payment in respect of Bottomry Bond-Foreign Law how far applicable to English Policy.

A policy of marine insurance was effected with English underwriters by an English merchant upon goods shipped in a French ship, and it was thereby provided that general average was to be payable as per judicial foreign statement. The ship was damaged by a collision and put into port for repairs, the cargo, however, being uninjured. The master, not having funds to do the necessary repairs, gave a bottomry-bond on ship, freight and cargo. The ship and freight proving insufficient to satisfy the bond, the assured had to pay the deficiency in order to obtain possession of his goods:

Held, that the policy was not to be construed according to French law, except so far as the parties had expressly stipulated that it should be, and that there being no loss by perils of the sea according to English law, the assured could not recover from the underwriters the amount which he had paid as above-mentioned.

ACTION upon a policy of marine insurance.
The facts sufficiently appear from the judgment.

May 16, 27, 1879. Cohen, Q.C., for the plaintiff: It must be admitted that this loss was not general average, but it is contended under the circumstances this was a loss by perils of the sea. By reason of perils of the sea the goods got into the hands of others, from whom the owner could not recover them without paying the amount necessary to satisfy the bond. It is like money paid to salvors. By the French law the shipowner is entitled to abandon the ship and freight to the bondholder, and may, by so doing, relieve himself from all further liability.

Actual sea damage to the goods themselves is not necessary to constitute loss by perils of the sea: Dent v. Smith ('); Rodoconachi v. Elliott (). There is no authority to show that in such a case as this the loss is not by perils of the sea. If this is not a loss by perils of the sea according to the English law it is by French law, and it is contended that the goods being on board a French ship, the policy must be construed according to French law: Lloyd v. Guibert (*)(*).

English Harrison, for the defendants: The policy [273 was an English policy effected by an English merchant with

(1) Law Rep., 4 Q. B., 414.

authorities with relation to the French (2) Law Rep., 9 C. P., 518; 10 Eng. law, but as the court held that the French law was not applicable, it is not thought necessary to refer to these authorities.

R., 288, affirming 7 id., 200.

(3) Law Rep., 1 Q. B., 115.

(4) Various citations were made from the Code de Commerce and other French

English underwriters, and must be construed according to the English law, except so far as the parties have stipulated to the contrary. It is expressly stipulated that general average shall be according to judicial foreign statement, but what under this policy amounts to a loss by perils of the sea must depend on English law. The cases of Powell v. Gudgeon ('), and Sarquy v. Hobson (), are in point of principle conclusive authorities to.show that this was not a loss by perils of the sea. [He also cited Harris v. Scaramanga ().]

Cur. adv. vult.

March 18. The judgment of the Court (Cockburn, C.J., and Lush, J.,) was delivered by

LUSH, J.: This is an action on a marine policy on goods. on a voyage from Lagos to Marseilles in a French ship. By the terms of the policy general average was to be payable as per judicial foreign statement.

The ship having come into collision with another ship put into Gibraltar for repairs. The cargo was undamaged. The master not having funds enough to do the necessary repairs, took up a loan on bottomry upon ship, freight and cargo. On arrival at Marseilles the bondholder took proceedings to enforce his rights against ship, freight and cargo, and ship and freight proving insufficient to satisfy the bond, the plaintiff had to pay the deficiency in order to release his goods. A judicial average statement was made out at Marseilles, which, however, did not comprise the sum paid to the bondholder, as the payment had not then been made. The defendants paid into court a sum sufficient to satisfy the claim for particular charges and expenses and general average under the adjustment, and the only question submitted to us is whether the amount paid to release the goods 274] is *recoverable under the policy. On the argument, Mr. Cohen, who appeared for the plaintiff, feeling that he could not sustain the claim as general average, contended that this was under the particular circumstances a loss by perils of the sea, the circumstances relied on being that the French law entitled the owner of the vessel in question to abandon the ship and freight to the bondholders and thus to release himself from further liability, the French law differing in this respect from English law. Whether this contention is well founded or not is not in our opinion material; for, supposing it to be so, it does not make the loss a loss (1) 5 M. & S., 431. (2) 4 Bing., 131.

(*) Law Rep., 7 C. P., 481; 3 Eng. R., 357.

by perils of the sea. The proximate cause of the loss, to which alone our law has regard, was the inability of the agent of the shipowner to pay off the charge which he had for want of funds at Gibraltar created on the cargo. The goods sustained no sea damage.

It was further contended on behalf of the plaintiff that, as the policy was upon goods in a French ship, it must be construed as if it had been a French policy, and that under such a policy the loss would have been deemed a loss by perils of the sea.

Whether a French policy would have been so construed is again immaterial. It is no doubt competent to an underwriter on an English policy to stipulate, if he think fit, that such policy shall be construed and applied in whole or in part according to the law of any foreign state, as if it had been made in and by a subject of the foreign state, and the policy in question does so stipulate as regards general average, but except when it is so stipulated the policy must be construed according to our law and without regard to the nationality of the vessel. Our judgment is therefore for the defendants.

Judgment for the defendants.

Solicitors for plaintiff: Gregory, Rowcliffe & Co.
Solicitors for defendants: Parker & Co.

[5 Queen's Bench Division, 275.]
March 23, 1880.

*GOLDSTRAW, Appellant; DUCKWORTH and Another, [275 Respondents.

Local Government Acts-Projection in Front of Building over Pavement-Absence of Obstruction to Traffic-5 Vict. s. 2, c. XLIV.

A local act for the promotion of health and the regulation of buildings in a borough enacted, after making various provisions for the prevention of nuisances upon the pavements of streets, that no projection should be made in front of any building over or upon the pavement:

Held, that this enactment did not apply to projections from the front of a building which were too high up to interfere with free passage along the footpath.

1880

Chapman v. Great Western Railway Co.

[5 Queen's Bench Division, 278.]

March 5; April 7, 1880.

278] *CHAPMAN V. THE GREAT WESTERN RAILWAY COMPANY.

CHAPMAN V. THE LONDON AND NORTH WESTERN RAILWAY COMPANY.

Carrier-Railway Company-Goods destroyed by Fire-When a Carrier ceases to be liable as such and becomes a Warehouseman.

A package of goods was delivered to the Great Western Railway Company and another to the London and North Western Railway Company for carriage to the station of the former company at W., both packages being addressed to the plaintiff "to be left till called for." One of the packages arrived at W. on the 24th of March, the other on the 25th. On their arrival they were placed in the station warehouse to await their being called for. The defendants did not know the address of the plaintiff, who travelled about the country with drapery goods. The goods had not been called for when, on the morning of the 27th of March, a fire having accidentally broken out, the warehouse was burned down and the goods were consumed by fire. The plaintiff on the same day after the fire called for the goods, and, not receiving them, brought actions against the defendant companies as common carriers to recover their value:

Held, that, after the interval of time which the plaintiff had suffered to elapse since the arrival of the goods, the liability of the defendants as common carriers in respect of the goods had ceased, and they had become mere warehousemen of them, and consequently that the actions were not maintainable in the absence of any evidence of negligence on the part of the defendants.

MOTION for judgment in both actions.

The action in both cases was by the consignee of goods against the railway company as common carriers for nondelivery of goods intrusted to them for carriage. The facts sufficiently appear from the judgment.

Poole, for the plaintiff, moved for judgment: The question is, whether the goods when they were destroyed were in the possession of the defendants as common carriers or as warehousemen. It is submitted that a reasonable time must be allowed to the consignee for taking delivery before the liability of the defendants as carriers comes to an end, and they become warehousemen. In this case the defendants accepted the goods upon the terms that they were to be left until called for, and 'the plaintiff was entitled to a reasonable time to call for them. The plaintiff cannot by unreasonable delay in taking delivery prolong the liability of the defendants as carriers, but it is submitted that a reasonable time had not elapsed, and that the plaintiff was not in 279] mora. [He cited *Mitchell v. Lancashire and York

Chapman v. Great Western Railway Co.

1880

shire Ry. Co. ('), Bourne v. Gatliffe ('), Hyde v. Trent Navigation Co. (), and Garside v. Trent and Mersey Navigation Co. (*).]

Kinglake, for the defendants: If the plaintiff does not take delivery within a reasonable time after the arrival of the goods the liability of the defendants as carriers is at an end. The fact that the goods were to be left till called for cannot prolong the liability of the defendants as carriers. It is contended that a reasonable time for taking delivery had elapsed in this case. [He cited In re Webb (†).]

Cur. adv. vult. April 7. The judgment of the Court (Cockburn, C.J., Lush and Manisty, JJ.,) was delivered by

COCKBURN, C.J.: These two cases depend on the same facts and involve the same point. The facts are not in dispute, and lie in a word; but they give rise to a question of considerable importance.

The plaintiff travels about the country with drapery goods. A package of such goods was delivered to the defendants, the Great Western Railway Company, at Bristol, to be forwarded from thence by their line to their station at Wimborne. A second such package was delivered to the defendants, the London and North Western Railway Company, to be forwarded from London to the station of the Great Western Company at Wimborne. Both were addressed to the plaintiff; both were directed "to be left till called for." The one from Bristol arrived on the 24th of March, the one from London on the 25th. On their arrival they were placed in the station warehouse to await their being called for. They had not been called for when, on the morning of the 27th, a fire having accidentally broken out, the warehouse was burned down, and the plaintiff's goods were consumed by fire.

The plaintiff brings his action against both defendants on their liability as common carriers, contending that that liability still subsisted when the goods were destroyed.

*The plaintiff was aware that the goods were com- [280 ing. He called on the 22d to inquire after them, but found that they had not yet arrived. He called again in the course of the 27th, but the goods had been destroyed that morning. The question is, whether the goods in question are to be considered as having been in the custody of the defendants

(1) Law Rep., 10 Q. B., 256; 12 Eng. R., 288.

(2) 4 Bing. N. C., 314; 3 M. & G., 643; 11 Cl. & F., 45.

(3) 5 T. R., 389.

(4) 4 T. R., 581.

(5) 8 Taunt., 443