Page images
PDF
EPUB
[blocks in formation]

a

An assured is entitled to a reasonable time for acquiring a full knowledge of the state of a damaged cargo before making his election to abandon. And therefore, where a cargo of damaged sugar came into port on 20th December and began to be unshipped and examined on 21st December, but the assured did not receive the complete report of the survey until the 7th January, it was held that an abandonment made on the 7th January was made within a reasonable time. Gernon v. Royal Ex. Ass. (Ex. 1815), 6 Taunt. 383.

In the case of Hunt v. Royal Ex. Ass. Co. (1816), cited under Nos. 2, 3, and 4, p. 33, supra, it was held that, allowing four days after the final survey for communication between Waterford and London, a delay of five days further in giving notice of abandonment would have been sufficient to bar the claim. Insurance on ship damaged by peril of the sea. Final survey

made at Kinsale, on 14th December, when it was ascertained that the cost of repairs would exceed the value of the ship. Notice of abandonment given on the following 6th of January. The communication between London and Kinsale being four or five days, this was held too late. Aldridge v. Bell (K. B. at nisi prius, 1816), 1 Stark. 406.

The insured ship having started from Calcutta and returned there shattered by a storm, the captain gave notice of abandonment to Lloyd's agents there; and, the ship having been surveyed and reported unrepairable, he sells her. The captain arrived in London the 25th of April; the ship’s papers, on the 3d July. On the 5th of July parol notice of abandonment was given on the part of the owners to the underwriters. After verdict for the plaintiff, who claimed as for a total loss: held that the notice of abandonment was sufficient, and the sale having been justifiable, the insurers were bound by it. Read v. Bonham (C. P. 1821); 3 Brod. & Bing. 147.

Insurance of cargo of wine for a voyage. The ship was wrecked, part of the cargo lost, and a large part of the rest greatly damaged, so that it was questionable whether it was worth while to pursue the adventure. The owner gave notice of abandonment, and called a meeting of the underwriters. Some of them attended, and with their sanction, the owners, for the benefit of all parties, advertised the wines to be sold. Two months later, others of the underwriters, including the defendant, intervened to countermand the sale. Held, that the defendant had, by lying by, acquiesced in the notice of abandonment. Hudson v. Harrison (C. P. 1821); 3 Brod. & Bing. 97. The reporter's head-note states the general proposition that "an insurer who rejects an abandonment must do so within a reasonable time." But this, if it implies that mere silence is a presumption of acceptance, is going too far. See Provincial Ins. Co. of Canada v. Leduc, post.

a

[blocks in formation]

Where a ship is driven ashore so that the cargo is imperilled, and it is ultimately ascertained that it is impracticable to carry it to its destination, the point of time when the loss occurs is not necessarily that when the peril was encountered, but may, in the interest of the assured, be assigned as the time when the constructive total loss is so ascertained.

So held, where the question arose on a special term of the contract that no action should be commenced but within twelve months after any loss or damage should occur, and the action was commenced within twelve months from the latter but not from the former event. Browning v. Prov. Ins. Co. of Canada (1873), L. R., 5 P. C. 263.

If notice of abandonment is given by the assured to the insurers, and they say and do nothing, the proper conclusion is that they do not accept the abandonment. But if they, by their agent, after notice of abandonment, take possession of the ship, do repairs upon it, and keep possession of it for a considerable time without repudiating the notice or informing the assured that they have taken and hold possession in a character other than that of owners, then the inference arises that they have accepted the abandonment. Provincial Insurance Co. of Canada v. Leduc, Jud. Com. of P. C. (appeal from Upper Canada) (1874), L. R., 6 P. C. App. 224 ; 43 L. J. P. C. 49.

AMERICAN NOTES.

Reasonable notice of intention to abandon must be given to the insurers after receipt of information justifying an abandonment; if not so given, the right to abandon is forfeited. Teasdale v. Charleston Ins. Co., 2 Brevard (So. Car.), 190 ; 3 Am. Dec. 705; Chesapeake Ins. Co. v. Stark, 6 Cranch (C. S. Sup. Ct.), 268; Fuller v. McCall, 1 Yeates (Penn.), 464; 1 Am. Dec. 312; Savage v. Pleasants, 5 Binney (Penn.), 403 ; 6 Am. Dec. 424; Cohen v. Charleston F. f. M. Ins. Co., Dudley Law Rep. (So. Car.) 147 ; 31 Am. Dec. 549. But in the last case it was held that when the vessel had arrived at a foreign port in a condition justifying abandonment, prior notice of that condition was not necessary.

Offer to abandon, made as soon as the preliminary proof of loss is obtained, is in time. Gardner v. Columbian Ins. Co., 2 Cranch Circ. Ct. (U. S), 550. So, on learning of condemnation, although the insured did not abandon on learning of capture. Dorr v. Union Ins. Co., 8 Mass. 494; Earl v. Shaw, 1 Johnson's Cases (N. Y.), 314.

Delay is immaterial unless it has prejudiced the insurers. Young v. Union Ins. Co., 24 Fed. Rep. 279 (U. S. Dist. Ct.). But this is denied in Taber v. China Ins. Co., 131 Mass. 239, (by Gray, Ch. J.), citing Mellon v. Louisiana Ins. Co., 5 Martin N. s. (Louisiana), 563.

[blocks in formation]

ABANDONMENT of the ship transfers to the underwriters the accruing freight: and his title to that freight is good although freight has been insured by a separate policy, and is abandoned to the underwriters on freight.

So held by judgment of the Court of King's Bench (ELLENBOROUGH, C. J., ABBOTT, J., and HOLROYD, J., diss. Bayley, J.); and judgment affirmed (unanimously) in the Exchequer Chamber.

Case v. Davidson.
Davidson v. Case.

5 M. & S. 79.

Assumpsit for money had and received, and the money counts. Plea general issue. On the trial before Lord Ellenborough, C. J., at Guildhall in Trinity Term, 1815, there was a verdict for the plaintiff for £71 12s. 10d. damages, subject to the opinion of the court upon the following case:

Messrs. Brotherston and Begg were owners of the vessel called the Fanny, which was a general seeking ship, and sailed on a voyage from Rio de Janeiro to Liverpool with a cargo of goods on freight, the property of different persons. On the 27th January, 1814, Messrs. Brotherston and Begg insured the vessel on the said voyage, valued at £7000; and on the 22d April following they insured the freight of the said voyage by other policies and with other underwriters, and valued the same at £4000. The vessel with the cargo was captured in the course of the voyage by an American privateer; and thereupon Messrs. Brotherston and Begg gave notice of abandonment at the same time to the respective underwriters on ship and freight, who severally accepted the same. Afterwards the vessel was recaptured by one of his Majesty's

[blocks in formation]

ships of war, was brought to London, and was by decree of the High Court of Admiralty restored to the owners with the cargo, on payment of salvage and expenses. The vessel arrived at Liverpool and delivered her cargo and earned the freight. It was agreed between the shipowners and the underwriters on ship (but not by the underwriters on freight), that the defendants should sell the ship and receive the proceeds thereof, and should also receive the freight of the cargo for the use and benefit of all persons respectively who should legally be entitled to it. The underwriters on ship and freight severally paid or satisfied the shipowners for a total loss. The underwriters on ship paid the loss on ship before the underwriters on freight paid the loss on freight. The defendants received and paid to the underwriters on ship the amount produced by the sale of the ship, which was about £33 per cent. on their subscriptions. The defendants also received the freight, which they held under the terms of the agreement, and which is £35 16s. 5d. per cent. clear on the sum insured on the ship. The underwriters on ship and also the underwriters on freight severally claimed from the defendants the freight thus received. The plaintiff is an underwriter on ship to the amount of £200, and claims to recover a proportion of the money received by the defendants for freight. The question for the opinion of the court is, whether the plaintiff is entitled to recover. If he is entitled, the verdict to stand, otherwise a nonsuit to be entered.

This case was argued partly in last term, and partly on this day (May 7), by Richardson for the plaintiff, and Littledale for the defendants For the plaintiff two points were made, first, that the abandonment of ship conveyed to the underwriter on ship the ship's future earnings; secondly, that the underwriter's title to the earnings was not affected by an abandonment to the underwriter on freight. In support of these propositions were cited the cases of Thompson v. Rowcroft, 4 East, 34 ; Leatham v. Terry, 3 Bos. & Pull. 479; M'Carthy v. Abel, 5 East, 388; Sharpe v. Gladstones, 7 East, 24. And Chinnery v. Blackburne, 1 H. Bl. 117, in not. ; Splidt v. Bowles, 10 East, 279; Morrison v. Parsons, 2 Taunt. 407, were referred to arguendo, as showing, that by an assignment of the ship, the freight passes to the assignee, and payment of it to him will be good ; though if the ship be chartered the assignee cannot, by reason of a technical rule of law, maintain an action for the freight in his own name.

[blocks in formation]

For the defendants it was urged, that as by the law of England freight might be made a distinct subject of insurance from ship, the law would so mould these contracts, where they concurred, as to preserve the rights of the respective parties distinct, and apply to each what properly belonged to it. Wherefore an underwriter on ship who insures but the hull, materials, body, tackle, and apparel of the ship, shall not, by an abandonment, be entitled to the earnings; for this would be to confound the two species of abandonment, and would render an abandonment of freight of no avail. It is true, indeed, that the beneficial interest in the freight passes by assignment of the ship: the reason of which is, because upon the purchase and sale of a ship, both parties intend that not only the body of the ship but all its incidents should pass, and agree upon a price accordingly; whereas a contrary intention seems necessarily to arise where there is a separate abandonment of ship and freight. Abandonment, therefore, differs from a transfer of the ship upon a sale, and extends no farther than to the thing insured.

Lord ELLENBOROUGH, C. J. Although this question now comes distinctly in judgment before us for the first time, yet it has, I own, been long considered, in my mind, as settled, that freight follows, as an incident, the property in the ship: and therefore, as between the respective underwriters on ship and freight, an abandonment of the ship carries the freight along with it. This subject was much under discussion at the time of the Russian embargo, when the rights of the respective sets of underwriters were considered. I believe it was at that time said that an abandonment to the underwriters of ship, like the traditio rei, divested the owner of all his rights in favour of the party to whom he abandoned. The underwriter, indeed, does not become privy, by virtue of such abandonment, to any existing charter-party, nor perhaps to any contract of affreightment before made with the owner; but I think that by the abandonment, he acquires possession of the thing from the use of which freight is to be earned. It is true, that the shipowner may have entered into contracts for the insurance of freight, and that by abandonment of ship the underwriters on freight will be deprived of some rights to which they would perhaps otherwise be entitled; but this will necessarily happen, if the underwriter on ship is entitled to look, without reference to the contracts of other persons, to his own contract,

« PreviousContinue »