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AND TOTAL LOSS IN MARINE INSURANCE.
SECTION I Cases where Abandonment may be made and Total Loss claimed.
SECTION I. — Cases where Abandonment may be made and
Total Loss claimed.
No. 1. – GOSS v. WITHERS.
(K. B. 1758.)
The capture of a ship by the enemy is a loss of the ship, and entitles the assured, unless his right is divested by recapture, to be paid for a total loss.
Ship and goods were insured, by separate policies, for a voyage. The ship was taken, and having remained in the hands of the enemy for eight days, was re-captured under such circumstances that the voyage was entirely defeated. The assured on both policies, having given prompt notice of abandonment, were held entitled to recover as for a total loss.
Goss v. Withers.
2 Burr. 683. This was a special case, from the sittings in London, upon two actions, on two distinct policies of insurance: one upon a ship, and the other upon the loading.
No. 1. — Goss v. Withers.
The former was an insurance upon the David and Rebecca, at and from Newfoundland, to her port of discharge in Portugal or Spain, without the Streights, or England; to commence from the time of her beginning to load at Newfoundland, for either of the above-named" places;- and it was upon the body, tackle, apparel, ordnance, &c., of the ship; beginning the adventure at Newfoundland; and to continue during her abode there, and until the said ship; with all her ordnance, tackle, &c., should be arrived at her port of discharge as aforesaid, and until she should have been . moored at anchor twenty-fours in safety. It was to be lawful for the ship to touch at and stay in any port whatsoever, without prejudice to the insurance. The ship was, by agreement, to be valued at the sum subscribed, without further account. And in case of loss or misfortune, it was to be lawful for the assured, their servants, &c., to sue, labor, and travel, for, in, or about the defence, safeguard, and recovery of the ship, or any part thereof, without prejudice to the insurance; to the charges whereof the insurers were to contribute, pro rata. The insurance was to be at ten guineas per cent; and in case of loss to abate £2 per cent. And in case of average-loss not exceeding £5 per cent to allow nothing towards such loss. And if the vessel discharged without the Streights, excepting the Bay of Biscay, two guineas per cent were to be returned ; and if she sailed with convoy, and arrived, two guineas more per cent were to be returned. The plaintiffs declared upon a total loss by capture by the French.
The policy declared upon in the other action was an insurance upon any kind of lawful goods and merchandises, loaden or to be loaden on board the aforesaid ship; which, for £7 78., insured £70. And the declaration alleged that divers quantities of fish, and other lawful merchandises to the value of the money insured were put on board, to be carried from Newfoundland to her port of destination, and so continued (except such as were thrown overboard, as is after-mentioned) till the loss of the ship and goods. The declaration then avers that a quarter of the said goods were necessarily thrown overboard, in a storm, to preserve the ship and the rest of the cargo; after which jetson, the ship and the remainder of the goods were taken by the French.
There was another count in this declaration for money had and received to the use of the plaintiffs.
The case states that the ship departed from her proper port, and
No. 1. -- Goss v. Withers.
was taken by the French on the 23d of December, 1756; and that the master, mates, and all the sailors, except an apprentice and landman, were taken out and carried to France. That the ship remained in the hands of the enemy eight days, and was then retaken by a British privateer, and brought in on the 18th of January to Milford Haven ; and that immediate notice was given by the assured to the assurers, with an offer to abandon the ship to their care.
It was also proved at the trial that before the taking by the enemy a violent storm arose at sea, which first separated the ship from her convoy, and afterwards disabled herself so far as to render her incapable of proceeding on her destined voyage, without going into port to refit.
It was also proved that part of the cargo was thrown overboard in the storm, and the rest of it was spoiled whilst the ship lay at Milford Haven, after the offer to abandon, and before the ship could be refitted. And the assured proved their interest in the ship and cargo to the value insured.
Several questions arising upon the trial of the first of the said causes, it was agreed that the jury should bring in their verdict, in both causes, for the plaintiffs, as for a total loss; subject, however, to the opinion of the court on the following questions, viz. :
1st. Whether this capture of the ship by the enemy was or was not such a loss as that the insurers became liable thereby.
2dly. Whether under the several circumstances of this case the assured had or had not a right to abandon the ship to the insurers after she was carried into Milford Haven?
This case was twice argued, viz., first, on Tuesday, 6th June, 1758, by Mr. Morton, pro quer', and Mr. Serj. Davey, pro def'; and again, on Friday, 10th November, 1758, by Mr. Norton, pro quer', and Sir Richard Lloyd, pro def'.
Mr. Morton and Mr. Norton, on behalf of the plaintiffs, argued for the affirmative in both questions.
They previously distinguished between cases disputed between insurers and insured, and those between owners and recaptors, and observed that this is a mere contract between the parties.
First point. - This is such a total loss as renders the insurers liable to answer for it.
They said they would consider (1st) what an insurance is, and (2dly) what a capture by an enemy is.
1st, The definition of an insurance is in Bynkershoek's Questiones Publici Juris, lib. i. cap. 21.
No. 1. -Goss V. Withers.
2dly. A capture is, when there is no just ground of hope of recovering the ship; then it becomes the property of the captor. Grotius, L. 3, c. 6, pa. 814, De Jure Belli et Pacis. “Tunc enim desperari incipit recuperatio, &c."
And the period of time of the detention is another rule; viz., being twenty-four hours in potestate hostium. Indeed, subsequent writers do not fix it so precisely; but they are then treating only upon salvage. Bynkershoek, indeed, differs in the premises, Lib. 1, c. 4, Quæstiones Juris Publici; but both agree in the conclusion ; for he also puts it upon the despair of the recovery of the ship. And this hope, or despair, must be a reasonable and just one; not a whimsical and arbitrary fancy or a mere wish.
This vessel was eight days in possession of the enemy, near a month out of the power of the owners (the insured), and almost all the hands taken out. So that by the terms and intent of the insurance (which must be taken favourably for the insured) this voyage must be taken to have been totally defeated to the insurers; the adventure totally stopt, and consequently the condition broken as between the insurers and the insured.
And this is different from cases of salvage, where the property is not altered ; but the marine law only determines what shall be paid by the owner for the salvage.
This is a total loss; it was so long in possession of the enemy that the spes recuperandi was gone.
Though the ship was not carried into port, nor within the enemy's fleet, yet it was eight days in possession of the enemy; and it might have been as many months. And the spes recuperandi would be as absolutely gone as if it had been carried into the enemy's fleet, out of which it might possibly be immediately retaken.
Therefore the being carried infra præsidia of the enemy cannot be the true rule; but the true and certain rule must, in reason, be where the spes recuperandi is gone. Indeed, the being carried intra præsidia may, in many cases, be an evidence of this.
Now upon the state of the present case, all hope of retaking was totally lost and gone.
However, the principle of this case is not new. For, by common law, the thing taken from the owner in war is gone, unless
i Vide 39 G. II. c. 34, p. 572, § 24 (the paying a salvage in proportion to the time Prize Act), which directs that retaken they were in the possession of the enemy." ships shall be restored to the owners, they
No. 1.- Goss V. Withers.
the owner makes fresh pursuit; and the property of the thing so taken in war belongs to the captor. And the common-law rule is, that in a war the captor of a ship has a right to the ship and goods taken, unless the owner makes fresh pursuit ante occasum solis. 7 E. IV. 14. Vavisoursaid that it was adjudged in the time of that same king, “qun 7 prist tiel meason 2 des enemies quel avoit prise devant dun Englishe, que il averoit ceo come chose gaigne en batel, &c., et nemy le roy, ne l'admiral, ne le partie a qui le property fuit devant, &c.; pur ceo q le partie ne vient freshment, mesme le jour q il fuit prise de luy, et ante occasum solis, et claime ceo.”
And this determination has never been shaken by any common-law resolution; it has rather been confirmed and recognized.
And the determinations of the admiralty courts will not affect this case, for they have determined either upon particular acts of Parliament, or upon the principles of other laws than the common law.
But this court will follow the determination of the common law. And the three acts of Parliament made in the present reign (which are all upon this head) are built upon the same principle. The saving-clause in 29 G. II. c. 34,3 supposes the right of the owner to be extinguished and gone, and that the captor had a right to the thing taken; otherwise, the Parliament had no right to impose upon the original owners such terms of payment for salvage. The act itself even calls them the former owners; and it is the bounty of the act to restore to them any part at all.
No mischief can arise from this construction : many inconveniences will flow from a contrary one. And courts of law will put liberal constructions upon policies of insurance.
This principle was recognized by Ld. Ch. J. LEE, in the case reported in 2 Strange, 1250, Denn v. Dicker, where the being carried into the enemy's port and detained eight days was esteemed a total loss of the voyage, and the property of the owners gone.
This is a question only between the insurer and the insured ; and the insurer had undertaken against all sorts of perils for a premium received. And here the voyage was totally lost, and the cargo entirely perished. So that there can be no doubt as to the real justice of this case.
1 Vavisour was not then a judge, nor even a serjeant.
Abr. of the case, Finch Tit. Barr. pl. 90, it is nieff
2 This is so in the last edition of the Year Books, but is a misprint, and in the
3 s. 24.