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the necessity of notice to the remotest extent in respect of bargains which might be made by persons who might or might not be interested at the moment in the ship, such as persons who might purchase the damaged vessel, or the wreck, or the like. Numerous arrangements might be made of that kind, which would create, I apprehend, far too remote an interest to be considered upon a question as to the law requiring notice of abandonment to be given. The whole principle of the notice of abandonment is, that you are to place the underwriters in such a position that they shall have all the advantages which you now possess in respect of the vessel, supposing that they can make those advantages available for the purpose of effectuating a salvage of some portion of that which has been lost in consequence of the perils which they have insured you against.
Now, my Lords, with regard to the observations made by Mr. Baron Martin, that the loss really was not a loss by perils of the sea, but was due to the insolvency of De Mattos, I think there is a clear fallacy in that view in two points, the first of which has been noticed by my noble and learned friend who first stated his views upon this appeal; it is, that the loss had accrued before the insolvency of De Mattos occurred. The loss accrued when the accident happened in which the damage occurred at Bluff Harbour, and that was some time before the insolvency of De Mattos took place. But I do not think it necessary to rest it upon that. I apprehend that it is not a thing which would absolve the underwriters from the liability for the loss which undoubtedly accrued on account of the ship not being fit for the voyage. There is nothing to absolve them from the liability to pay the insurance in the circumstance of the insolvency of De Mattos, who in the chapter of accidents might have become solvent, and even wealthy again, before the necessity arose for the vessel completing her voyage. But the point that has to be looked at is this: Were the owners in a position to enforce their rights against De Mattos, whatever they may have been; were they in a position, by tendering the vessel to him, either to insist upon his paying the freight then and there, or to insist upon such rights as might accrue to them by action in respect of his non-performance of the contract; or were they disabled from occupying that position by the consequences resulting from the perils of the sea which arose at Bluff Harbour, preventing them from fulfilling their part of the contract with De Mattos by ten
I think your
dering to him a ship, staunch, tight, and strong, for carrying his goods to Britain ? If that be the case, of course it is clearly and distinctly within the terms of the policy; and that being so, it seems to me clear that the underwriters must be liable unless this one point, which was strongly insisted upon, of want of timely notice of abandonment, precludes their liability. Lordships are all agreed that no such notice was necessary, and therefore it is unnecessary to consider the question as to the time at which such notice was given.
Therefore, my Lords, upon all the points, I think that the appellants have failed, and consequently the appeal should be dismissed with costs.
Judgment of the Court of Exchequer Chamber affirmed;
and appeal dismissed with costs.
Insurance on freight under charter-party under which the freight was to be paid at Madeira, on delivery of certain goods there, by Madeira wine to be carried by the ship to Jamaica free of freight. The ship arrived at Madeira, where she delivered the goods; but was wrecked before the wine in payment of the freight could be shipped on board. Held, a total loss of the freight. Atty v. Lindo (C. P. 1805), 1 Bos. & P. N. R. 236.
Policy on freight (without mention of charter-party) at and from Riga to any port in the United Kingdom. The ship had sailed under a charter-party, under which she was to bring home a cargo of hemp from Riga. The ship was detained at Riga by order of the Russian Government so long that she could not sail on account of the frost. She never loaded under the charter-party, but in the spring entered into a new contract under which she earned freight on the voyage home, but the expenses of the delay had exceeded the freight. Held, that the freight so earned was the insured freight, and that there was no total loss. Everth v. Smith (K. B. 1814), 2 M. & S. 278.
Insurance on freight for a voyage becomes, when the ship is laden, an insurance of the freight for the particular cargo shipped. If, in consequence of a peril insured against, it becomes impossible to bring home that cargo, there is a total loss of the freight, and abandonment is unnecessary, as there is nothing to abandon. If the ship earns freight by bringing home another cargo, that is salvage on freight. Green v. Royal Ex. Ass. Co. (K. B. 1815), 6 Taunt. 68.
Insurance of freight valued. The ship having sprung a leak was ruu
ashore, taking the ground on a reef of rocks. While there in a state of imminent peril, she was sold by the captain (as master) under the advice of a surveyor and agent for the owners. The jury found that the master had acted throughout fairly and bonâ fide for the benefit of all concerned. Held (on a case agreed to be turned into a special verdict), that the assured might recover as for a total loss although no notice had been given of abandonment, and although the purchaser got the ship off and ultimately brought her into port. Idle v. Royal Ex. Ass. Co. (Ex. 1819), 8 Taunt. 755. - It appears from a note to Read v. Bonham, 3 Brod. & Bing. 151, that on the case coming on for argument in K. B. in error, the court expressed the opinion that the necessity did not appear from the special verdict, and a venire de novo was awarded for the purpose of trying whether it existed. BAYLEY, J., said that the question whether the circumstances amounted to an abandonment might also be left open. The case is however cited in Roux v. Salvador (p. 62, supra) in a passage again quoted in Cossman v. West, 13 App. Cas. 176, as an authority for the proposition that no abandonment is necessary where there is a total loss of the subject-matter insured.
A case similar to Idle v. Royal Exchange Ass. Co. came into the Common Pleas in 1827. The court, including PARK, J., approved the decision of the former case by the Court of Exchequer, and gave a similar judgment. They also put the case on the ground that, the insurance being on freight, there was nothing to abandon. Mount v. Harrison (C. P. 1827), 4 Bing. 388.
Shipowner and charterer may agree by charter-party that a portion of the stipulated freight shall be prepaid: in which case the remainder of the freight may be incurred, and if the freight ultimately earned does not exceed what has been prepaid, so that no balance becomes payable on the performance of the voyage, the shipowner may recover as on a total loss. Allison v. Bristol Marine Ins. Co. (1876), 1 App. Cas. 209.
In a policy on chartered freight, where the ship on the way to take up the cargo has grounded, and is delayed so long that the charterers justifiably throw up the charter and send the cargo by another ship, this is a total loss of the chartered freight by perils of the sea. Jackson v. Union Marine Ins. Co. (1873, 1879), L. R., 8 C. P. 592; 42 L. J. C. P. 284 ; 10 C. P. 125; 44 L. J. C. P. 27.
Where a vessel is so injured by a sea peril as not to be reparable, except at an expense exceeding its value when repaired, there is an actual total loss, and no abandonment is necessary. Bullard v. Roger Williams Ins. Co., 1 Curtis Circ. Ct. (U. S.) 148.
Abandonment is unnecessary where it cannot possibly be of benefit to the underwriter. Fosdick v. Norwich Ins. Co., 3 Day (Conn.), 108; Walker v. Protection Ins. Co., 29 Maine, 317. And where something still exists capable of abandonment. Burt v. Brewers', &c. Ins. Co., 16 N. Y. Sup. Ct. 383.
SECTION IV. – Criterion of Time in cases of Abandonment
and Total Loss.
ABANDONMENT is not effectual to entitle the assured to recover as for a total loss, unless the facts constituting a total loss exist at the time of the abandonment.
Semble, that they must exist also at the time of action brought.
Hamilton v. Mendez.
2 Burr. 1198.
Monday, 8th June, 1761. This was a special case reserved at Guildhall, at the sittings there before Lord Mansfield after Michaelmas Term, 1760, in an action brought against the defendant as one of the insurers, upon a policy of insurance from Virginia or Maryland to London, of a ship called the Selby and of goods and merchandise therein, until she shall have moored at anchor twenty-four hours in good safety.
The case stated for the opinion of the court was as follows:
That the ship Selby, mentioned in the policy, being valued at £1200, and the plaintiff having interest therein, caused the policy in question to be made ; and the same was accordingly made, in the name of John Mackintosh, on behalf and for the use and benefit of the plaintiff, and which was subscribed by the defendant, as stated, for the sum of £100.
That the ship, being of the burthen of two hundred tons, was on the 28th of March, 1760, in good safety at Virginia; where
she took on board 192 hogsheads of tobacco, to be delivered at London.
That on the said 28th day of March, she departed and set sail from Virginia for London; and on the 6th day of May following, as she was sailing and proceeding in her said voyage, was taken by a French privateer called the Aurora, of Bayonne, Captain Jean Piena Lesea commander; who, with his company were subjects of the French king, then being at war with our lord King George the Second.
That at the time of the capture, the Selby had nine men on board; and the captain of the said privateer took out six, besides the captain, Dorsdill; leaving only the mate and one man on board.
That the French put a prize-master and several men on board the said ship Selby, to carry her to France.
That as the French were carrying the said ship Selby towards France, on the 23d day of the said May, she was retaken off Bayonne, by the Southampton, an English man-of-war commanded by Captain Antrobus; who sent her into Plymouth, where she arrived the 6th day of June following.
That the plaintiff living at Hull, as soon as he was informed what had befallen his said ship the Selby, wrote a letter on the 23d day of June, to his agent John Mackintosh living in London, to acquaint the defendant, “ that the plaintiff did from thenceforth abandon to him his interest in the said ship, as to the said one hundred pounds by the defendant insured.”
That the said John Mackintosh, on the 26th day of the said June, acquainted the defendant with an offer to abandon the ship: to which the defendant said “ he did not think himself bound to take to the ship; but was ready to pay the salvage and all other losses and charges that the plaintiff sustained by the capture.”
That upon the 19th day of August, the said ship Selby was brought into the port of London, by the order of the owners of the cargo and the re-captors.
That the said ship Selby sustained no damage from the capture.
That the whole cargo of the said ship Selby was delivered to the freighters, at the port of London ; who paid the freight to Benjamin Vaughan, without prejudice.
The question therefore submitted to the opinion of the court in this case, is, “Whether the plaintiff, on the said 26th day of
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