No. 4. Farnworth v. Hyde.

Smith, 9 C. B. 94 (E. C. L. R. vol. 67), 19 L. J. C. P. 225, whether to do so will cost more than they are worth; and that, in determining this, the jury should take into account all the extra expenses consequent on the perils of the sea, such as drying, landing, warehousing, and reshipping the goods; but that they ought not to take into account the fact that if they are carried on in the original bottom, or by the original shipowner in a substituted bottom, they will have to pay the freight originally contracted to be paid; that being a charge to which the goods are liable when delivered, whether the perils of the sea affect them or not. And we also agree that Rosetto v. Gurney correctly decides that, where the original bottom is disabled by the perils of the seas, so that the shipowner is not bound to carry the goods on, and he does not choose to do so, the jury are not to take into account the whole of the cost of transit from the place of distress to the place of destination, which must be incurred by the goods-owner if he carries them on, but only the excess of that cost above that which would have been incurred if no peril had intervened.

To hold otherwise would be to enable the assured owner of goods to bring into account the whole of the freight whenever the cost of obtaining a substituted bottom exceeded the original freight however small the excess may be for, in such a case, the shipowner would never carry on the goods for the purpose of earning his original freight, though he might perhaps do so as agent of the goods-owner; whilst no part of the freight could ever be charged when the cost fell short of the original freight, in which case the shipowner would forward them. This would be a very unsatisfactory state of the law; and we are of opinion that the case of Rosetto v. Gurney, which prevents that result, was correctly decided. Then applying this to the facts in the present case, it becomes obvious that, whilst it is doubtful whether there was evidence justifying the verdict, if the jury had to deal with a margin of a little more than 5 per cent of the value of the goods, there is clearly none justifying it when they had to deal with a margin of about 40 per cent.

Mr. Mellish, indeed, said that there are cases in which a thing in extreme and imminent danger of immediate destruction may be justifiably sold, although in the event it turns out that it survives the peril, to the great benefit of the purchaser. But there is not in this case any evidence of such a state of imminent and imme

diate peril as could justify the verdict for a total loss upon this ground.

We think, therefore, that the rule to set aside the verdict for a total loss must be made absolute.

This renders it unnecessary to consider the question principally argued in the court below, as to the necessity of a notice of abandonment. On that point we leave the authority of the decision of the court below untouched, neither confirmed nor weakened by anything that has taken place in this court.

On the remaining question, whether the partial loss does or does not exceed the amount paid into court, we are absolutely without materials for forming a judgment. The only course which seems practicable is that on which the parties seem to have agreed at nisi prius, namely, that an arbitrator should find the figures, and raise and state for the Court of Common Pleas any question of principle involved, arising on his findings. Rule accordingly.

ENGLISH NOTES.

It has been thought convenient to collect and place together the cases relating to the competency of abandonment whether of ship or cargo. The latter part of the head-note belongs exclusively to Farnworth v. Hyde (No. 4).

Insurance on ship, cargo, and freight from Tortola to London. The ship was driven back to Tortola unfit for the voyage; and it was found impossible to repair her for the voyage, or to get another ship to take the cargo. The ship and cargo were accordingly sold. The assured abandoned and claimed as for a total loss. It was admitted that the loss of freight was total: and it was held that there was also a total loss of the ship and of the cargo. Lord MANSFIELD said the general principle was that if the voyage, in consequence of a peril within the policy, is lost, or is not worth pursuing, that is a total loss. Here the vessel, which was a large Dutch ship with sugar from Tortola to London, was driven back and became totally unfit for the voyage. There was no ship sufficiently large, nor were there ships enough to bring the cargo to London. Under these circumstances the court were of opinion that the voyage was lost. Manning v. Newnham (1792), 3 Dougl. 130; s. c. 2 Camp. 625 in notis.

An insured ship captured by the enemy was ransomed and brought home by the captain, who refused to deliver her up to the owners except on payment of the ransom. Held, that the owners, being entitled to the possession as against the illegal claim of the captain,

Nos. 2, 3, 4. Allen v. Sugrue, &c. - Notes.

could not claim as for a total loss. Taunt. 363.

Parsons v. Scott (Ex. 1810), 2

The plaintiff claimed as for a total loss of a cargo of corn insured for a voyage. The ship had put into a port damaged and unfit to pursue the voyage, and the assured had given notice of abandonment. Lord ELLENBOROUGH, on the case of Manning v. Newnham being cited, said, "I accede to that; " and he intimated in effect, that if another vessel could not have been procured, he would have held that there was a total loss. But, the contrary appearing to be the case, the plaintiff was nonsuited. Wilson v. Royal Exchange Assurance Co. (N. P. 1811), 2 Camp. 622.

Policy on goods (copper and iron) at and from London to Quebec warranted free of particular average. The ship, damaged in a gale, put into Kinsale in Ireland for repairs, and was there detained so as to be unable to complete the voyage that season. It was stated that another ship could not be procured to reach Quebec before the close of the season for navigating the St. Lawrence. The cargo was sold at Kinsale as a damaged cargo. In an action by the assured claiming as on a total loss, it was held that, as there was neither a destruction (actual or imminent) of the cargo nor permanent incapacity of the ship to perform the voyage, there was no good cause of abandonment so as to amount to a total loss. Lord ELLENBOROUGH, who delivered the judgment of the court, said: "There is not any case nor principle which authorizes an abandonment, unless where the loss has been actually a total loss, or in the highest degree probable, at the time of the abandonment." Anderson v. Wallace, (K. B. 1813), 2 M. & S. 240.

Insurance on a cargo of pork and flour separately valued at and from Waterford to St. John's, Newfoundland, by the ship A., warranted free from average on flour. The ship was so damaged in a storm that she was driven back to Cork, and, after survey, was pronounced incapable of repair and was broken up. The flour was warehoused. No question was raised as to the pork. Held, as to the flour, that there was no total loss. For, though the ship was lost and the season was lost, there was nothing to prevent the flour being sent to its destination in a merchantable condition. Hunt v. Royal Exchange Assurance Co. (K. B. 1816), 5 M. & S. 47.

Ship and cargo of timber insured against (inter alia) barratry of the master and crew (the timber valued at £12 per load) were carried off by a barratrous act. The insured abandoned. Ultimately a large part of the timber was sent (though not by the act of the insured) to its destination. The insured had a verdict for a total loss by barratry, and under a threat of execution obtained payment accordingly. The question being then argued whether the underwriters should not be VOL. I. -3

allowed the value under the policy of that part of the timber which had arrived (subject to the charges for bringing it home), it was held that there was a total loss of the whole cargo from the time when the barratrous act was committed. Dixon v. Reid (K. B. 1822), 5 B. & Ald. 597. ABBOTT, C. J., who delivered the opinion of the court, distinguished the case from Hunt v. Royal Exchange Co. and others cited, on the ground that the cargo was by the barratrous act taken out of the possession of the insured, and that the sending home of the timber was not the act of the insured or of any person authorized by him. Sed quaere, whether there is any reason in this distinction. The case does not in this respect appear to differ in principle from a case where a derelict ship is brought in by salvors so as to be worth more than the salvage and charges.

The principle of the judgment in Allen v. Sugrue (K. B. 1828), which was ultimately confirmed by the House of Lords in Irving v. Manning (1848), was in the mean time upheld by the Exchequer Chamber, on appeal from the Common Pleas, in Young v. Turing (1841), 2 Man. & Gr. 593.

Ship valued at £12,000, insured from Valparaiso to England; the freight, valued at £4000, was insured by a separate policy. The ship sailed with a full cargo, but was compelled by stress of weather to put back to Valparaiso; where she was found (upon survey) so damaged that to repair her would cost a sum exceeding the value of the freight, though less than the value of the ship when repaired. Upon this the master sold her. Held, that there was not a total loss either of ship or freight. Moss v. Smith (C. P. 1850), 9 C. B. 94; 19 L. J. C. P. 225.

"As a general rule, where the whole or any part of a cargo is practically capable of being sent in a marketable state to its port of destination, the master cannot sell, nor can the assured recover as for a total loss." Per CURIAM, Rosetto v. Gurney (C. P. 1851), 11 C. B. 176, 186; 20 L. J. C. P. 257.

Cargo of wheat (valued) insured from Odessa to Liverpool. The vessel put back, sea-damaged, to Odessa, where she was refitted by money raised on bottomry. She again sailed, was wrecked, and brought by salvors into Cork; where, the vessel being found not worth repairing, and the cargo considerably damaged, both were sold. The assured on cargo having claimed as for a total loss, Held, that, in ascertaining whether it is practicable to send the whole or any part of the cargo to its port of destination in a marketable state, the jury were bound to take into consideration the cost of unshipping the cargo, the cost of warehousing it, the cost of transshipping it into a new bottom, and the cost of the difference of transit if it could only be effected at a

higher than the original rate of freight, adding the proportion of the salvage corresponding to the value of the cargo saved, but not the debt. and costs paid to the holders of the bottomry bond; and that the loss would be total or partial as the aggregate of these exceeded or fell short of the value of the cargo when delivered at the port of discharge. Rosetto v. Gurney (ut supra), 11 C. B. 176. It is to be observed that it is here treated as settled law that the amount of the original freight is not to be deducted in the calculation. This is consistent with the decision of Lord MANSFIELD in Baillie v. Mondigliani, Marshall, 3d ed. p. 736, where Lord MANSFIELD said that "the underwriters on cargo have nothing to do with the freight." The actual question in Baillie v. Mondigliani was whether the insurers were liable to the charge of pro rata freight paid, on transshipment, to the owners of the original ship. But, notwithstanding a nisi prius case of Boyfield v. Brown, reported in 2 Str. 1065, it appears well settled in English law, that the original freight if earned is not to be taken into account as diminishing the value of the goods, upon the question whether they can be practically carried in a marketable state to their destination. Although it appears from the report to Boyfield v. Brown that subsequently to that determination the London underwriters introduced the memorandum "corn, &c., warranted free from average unless general or the ship be stranded," that case must now be deemed to be overruled by the determination in numerous cases. See Arnold, 5th ed. p. 730.

Where the cost of raising a sunken ship would be contributed out of general average by ship and cargo, the contribution by cargo must be taken account of in calculating, as between owner and underwriters on ship, the cost of repair, in order to determine whether there is a constructive total loss of the ship. Kemp v. Halliday (Ex. Ch. from Q. B. 1866), L. R., 1 Q. B. 520; 35 L. J. Q. B. 156.

Insurance for a voyage from Moulmein to Madras on a cargo of teak and other timber of great specific gravity: also on disbursements. The ship grounded in the tidal river going out of port, and became a wreck; and notice of abandonment was given on the policies. The captain made no effort to save the cargo: but a large part was ultimately saved. Held, that the cargo was never in such imminent danger as to justify the abandonment; but that there was a total loss on the "disbursements," that is to say, advances made by the charterer to the captain to be paid out of the freight to be earned on the arrival of the vessel at Madras. Currie v. Bombay Native Insurance Co. (1869), L. R., 3 P. C. 72; 39 L. J. P. C. 1.