POLICIES. Stock and cient. Three months clapsed. said policy of insurance, and the said conditions, and the said stipulations contained, on his part and behalf to be observed and performed, according to the form and effect of the said policy of assurance, and of the said proposals [*216] and *conditions; and althongh the said stock and funds of the said Company always, from the time of the making of the said policy of insurance, have funds suffi- been, and yet are, sufficient to pay to the said plaintiff the said sum of £5000; and although three months after the decease of the said E. F. was duly certified to the directors of the said Company, at their principal office as aforesaid, and after satisfactory proof was so produced of the death of the said E. F. as aforesaid, have long since elapsed; of all which said several premises the said defendants, afterwards, to wit, on the day and year last aforesaid, at, &c. (venue) aforesaid, had notice, and were then and there requested by the said plaintiff to pay him the said sum of £ 5000, so by them insured as aforesaid; yet the said defendants, not regarding their said promise and undertaking so by them made as aforesaid, did not, nor would, when they were so requested as aforesaid, or at any time before or since, pay the said sum of £5000, or any part thereof, but have hitherto wholly neglected and refused so to do, and still neglect and refuse so do, to wit, at, &c. (venue) aforesaid. Second count. [And whereas also the said plaintiff heretofore, to wit, on, &c. at, &c. aforesaid, caused to be made a certain other policy of insurance, whereby, after reciting, &c. same as first count, omitting the words in brackets, and declaration of interest, and then add counts for money had and received, account stated, and breach.] FOR GEN ERAL AVERAGE. By the ow ner of a ship, against the person tion of general average loss, accruing from For that whereas the said plaintiff, before and at the time of happening of the damages and losses in this count mentioned, was owner or proprietor who had of a certain ship or vessel called the and of her tackle, anchors, masts, goods on board, for boats, and appurtenances, the same being of great value, to wit, of the value his propor- of-l. of lawful, &c.; and which said ship or vessel was then proceeding on a certain voyage, to wit, from, &c. towards, &c. with certain goods and merchandizes of the *said defendant, of great value, to wit, of the value of -l. on board thereof, to be carried and conveyed therein on freight during the said voy[217] age, to wit, at, &c.* And whereas also, whilst the said ship or vessel was saildamage ing and proceeding on her said voyage with the said goods and merchandize on the loss of board thereof, to wit, on, &c. at, &c. (venue) aforesaid, by storms, winds, and tempestuous weather, one of the anchors of and belonging to the said ship or to preserve vessel, and then and there being the property of the said plaintiff, and of great the ship value, to wit, of the value of -l. was washed, forced, and driven overboard and cargo, as also for from and out of the said ship or vessel, and became and was suspended on the done by an anchor cut away loss of boats, and Shipping, 4th ed. 361. And for law as to -Holt on Shipping.-Marshall on Insurance.-Park on Insurance.-Hughes on Insurance, 284, &c. 3 Chit. Com. Law, 432. See also 3 Campb. 480.-2 Marsh. 309.-2 M. & S. 482. aforesaid, and RAGE. side of the said ship or vessel, and entangled in the rigging thereof; and there- FOR genupon, in order to preserve the said ship or vessel, and the goods and merchan- ERAL AVEdizes on board thereof, it then and there became and was expedient and necessary to cut away the jibs and forestay-sail, and the downhall and bury rope, and other parts of the rigging of and belonging to the said ship or vessel, and being the property of the said plaintiff, of great value, to wit, of the value of -l., and the same were then and there accordingly cut away, and thereby then and there became and were wholly lost to the said plaintiff; and the said plaintiff further saith, that by means of the said damage and loss, and other damage to the said ship or vessel occasioned by the said storms, winds, and tempestuous weather, the said ship or vessel became and was so greatly damaged that it then and there became and was expedient and necessary, in order to preserve the said ship or vessel, and her cargo on board thereof, for the said ship or vessel to put back again to aforesaid, and there to repair the said damage so occasioned as aforesaid; and the said ship or vessel, with the said goods and merchandizes of the said defendant on board thereof, did thereupon then and there put back and sail back again to the said damage was then and there repaired; and the necessary expenses incurred by the said plaintiff in the premises, then and there amounted to a large sum of money, to wit, the sum of £- and the said plaintiff further saith, that whilst the said ship or vessel was so repairing as aforesaid, to wit, on, &c. at to wit, at, &c. (venue) aforesaid, the said plaintiff was forced and obliged to pay the wages and maintenance of divers, to wit, 50 seamen, and 50 persons, in and on board the said ship or vessel, in the whole amounting to, &c. and the said goods and merchandizes were then *and there saved and preserved, and arrived safely into the hands and possession of the said defendant; of all which said several premises the said defendant afterwards, to wit, on, &c. at, &c. (venue) aforesaid, had notice; and by reason of the premises, and of the said defendant so being such owner of the said goods and merchandizes so on board the said ship or vessel, on freight as aforesaid, and so saved and preserved by the means aforesaid, he the said defendant, as such owner, became, and was liable to contribute to the said losses, damages, and expenses, in a general average, and thereupon, in consideration of the premises, the said defendant afterwards, to wit, on the day and year last aforesaid, at, &c. (venue) undertook and then and there faithfully promised the said plaintiff to pay him so much money as he the said defendant, as owner of the said goods and merchandizes, was liable to contribute to the said losses, damages, and expenses, in a general average, when he the said defendant should be thereunto requested: and the said plaintiff avers, that the said defendant, as such owner of the said goods and merchandizes as aforesaid, was liable to pay and contribute to the said losses, damages, and expenses, in a general average, a large sum of money, to wit, the sum of -l.; whereof the said defendant, afterwards, to wit, on the day and year last aforesaid, at, &c. (venue) aforesaid, there had notice. [*218] And whereas also the said plaintiff, at the time of the accruing of the Second damages and losses in this count hereinafter mentioned, was owner and pro- count. prietor of a certain ship or vessel, and her tackle, anchors, masts, boats, and ap ERAL AVE RAGE. FOR GEN- purtenances, the same being of great value, to wit, of the value of -1. of lawful, &c. which said last-mentioned ship or vessel was then proceeding on a certain voyage from, &c. to with certain goods and merchandizes of the said defendant, of great value, to wit, of the value of -l. on board thereof, that is to say, at, &c. (venue); and whereas also, whilst the said last-mentioned ship or vessel was sailing and proceeding on her said last-mentioned voyage, with the said last-mentioned goods and merchandizes on board thereof, to wit, on, &c. at, &c. aforesaid, one of the anchors of and belonging to the said ship or vessel, and then and there being the property of the said plaintiff, and of great value, to wit, of the value of . was forced overboard from and out of the said ship or vessel, and became and was suspended [*219] on the side of the said ship or vessel, and entangled in the rigging *thereof, and thereupon, in order to preserve the said last-mentioned ship or vessel, and goods and merchandizes on board thereof, it then became expedient and necessary to cut away the jib and forestay-sail, and the downhall and bury rope, and other parts of the rigging of and belonging to the said ship or vessel, and being the property of the said plaintiff, of great value, to wit, of the value of-l. and the same were then and there accordingly cut away, and were wholly lost to the said plaintiff'; of all which said premises the said plaintiff, afterwards, to wit, on the day and year aforesaid, at, &c. (venue) had notice; and by reason of the premises, and of the said defendant so being such owner of the said last-mentioned goods and merchandizes, so on board of the said ship or vessel as aforesaid, on freight as aforesaid, he the said defendant, as such owner, became liable to contribute to the said losses and damages, in a general average; and thereupon, in consideration of the premises, he the said defendant, afterwards, to wit, on the day and year aforesaid, at, &c. (venue) undertook, and then and there faithfully promised the said plaintiff to pay him so much money as he the said defendant, as owner of the said last-mentioned goods and merchandizes, was liable to contribute to the said losses and damages, in a general average, when he the said defendant should be thereunto requested; and the said plaintiff avers, that the said defendant, as such owner of such last-mentioned goods and merchandizes as aforesaid, was liable to pay and contribute to the said losses and damages, in a general average, a large sum of money, to wit, the sum of £-; whereof the said defendant, afterwards, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, had notice.-[Add indebitatus counts for general average, as ante, 62; also counts for money paid, account stated, and usual breach.] For an av anchor be ing cut away, it being entangled with the [As in the last precedent to the asterisk *, in page 217.] And whereas also, erage loss, during the said voyage, to wit, on, &c. it became necessary to cast anchor in the port of E. in the county of. &c. and the best bower anchor was then and there accordingly cast, and thereupon the same then and there became, and was entangled in certain mooring-chains there called, insomuch that it then and there became, and was found impracticable and impossible to weigh shore, and the ship and raise the same: and the said plaintiff in fact saith, that afterwards, to wit, sailing af on, &c. at, &c. it became and was necessary for the said ship or vessel to proter convoy, ceed in her said voyage, and immediately to sail, in order to join the first con[*220] voy to the *port of her destination; and it being then and there impossible to sails, &c. GEN. ERAL from the weigh or raise the said anchor, it then and there became necessary to cut the FOR cable thereof, for the purpose of enabling the said ship or vessel to proceed on AVERAGE. her said voyage, and the same was then and there accordingly cut, and a part being thereof, together with the said anchor, being then and there of great value, to blown wit, &c. was then and there necessarily left at the moorings aforesaid, to wit, away at, &c. aforesaid: and the said plaintiff in fact further saith, that afterwards, and ship. during the said voyage, to wit, on, &c. at, &c. (venue) by the force and violence of the winds and waves, divers, to wit, twenty sails of the said ship or vessel were torn to pieces and destroyed, and divers, to wit, twenty ropes and twenty cables thereof torn away from the said ship, the same then being the property of the said plaintiff, of great value, to wit, of the value of £- and the same were then and there wholly lost to the said plaintiff; of all which said premises the said defendant, afterwards, to wit, on the day and year aforesaid, at, &c. had notice; and by reason of the premises.-[Conclude as ante, 217.] ap ral aver storms, and became ant's goods being sav ed, he be came liable to pay pro portion of [Same as the precedent, ante, 216, to the statement of the damage, and then For geneproceed as follows:]-The said ship or vessel having the said goods and merage, where chandize on board her as aforesaid, was, by and through the perils and dan- ship, dam. gers of the seas, and the force and violence of the winds and waves, and by aged by means of stormy and tempestuous weather in the course of such voyage, great- obliged to ly damaged, strained, and rendered leaky, insomuch that divers large quanti- put into ties of water entered the same; and the said ship or vessel, with the said goods be laid on port, and and merchandize on board thereof, being thereby in great and imminent danger beach, where she, of sinking and foundering, it afterwards, to wit, on, &c. last aforesaid, became, by weight and was necessary and expedient, for the preservation and safety of the said of cargo, ship or vessel, and the said goods and merchandizes, to put into a certain har- bilged, and bor, to wit, the harbor of Cork, and then and there to lay the said ship or ves- defendsel, with the said goods and merchandizes on board her, on a certain beach there, and the same was accordingly laid on such beach; and thereby, and by means of the said several premises, the said ship or vessel, her tackle, and purtenances, respectively became, and were unavoidably greatly bilged, broken, injured, and deteriorated, and rendered of little or no value to the said injury and plaintiff; but the said goods and merchandizes of the said defendant were incurred in thereby then and there saved and *preserved from loss and damage, with great saving goods. trouble and expense, to wit, an expense of £; and the same were afterwards, [*221] to wit, on &c. to wit, at, &c. aforesaid, safely and securely delivered to the said defendant; of all which premises the said defendant, afterwards, to wit, on the day and year last aforesaid, there had notice; and by reason of the premises, and of the said defendant being owner of the said goods and merchandizes during the said voyage, and at the time when the said brig or vessel was so strained, laid upon the beach, broken, injured, and deteriorated as aforesaid, and being thereby benefited as aforesaid, he the said defendaut then and there became liable to contribute to the said loss or damage, and injury, so occasioned to the said ship or vessel as aforesaid, in a general average; and thereupon, &c.-[State promise, and averment, and notice, as in the precedent, ante, 217, and vary the statement in different counts, as in that precedent.] VOL. II. 21 expense, ON CHAR TER PARTIES. On char For that whereas heretofore, to wit, on, &c. (date of charter-party) at, ter-party, &c. (venue) by a certain charter-party of affreightment, then and there made by owner between the said plaintiff, therein described to be part owner of the good of ship against freighter, for not dis patching ship, and not load ing her, and for ment of ship or vessel called the [Neptune] of the burthen of [one hundred and fortytwo tons] or thereabouts, whereof G. H. was master, then lying in the river Thames (u), of the one part, and the said defendants, therein described of the city of London, merchants, freighters of the said ship, of the other part (u), it was witnessed, (here set forth the charter-party in its legal effect or literal words in the past tense) amongst other things, that the said owner, non-pay- for the considerations thereinafter mentioned, did thereby promise and agree, to freight and and with the said freighters, his executors, administrators, and assigns, that demurrage the said ship being tight, staunch, and strong, and every way properly fitted, (1). Statement victualled, and manned with all things needful and necessary, as is usual for vessels in merchants' service, and for the voyage thereinafter named, the said master should and would receive on board the said ship, from alongside in the river Thames, a full and complete cargo of such lawful goods, wares, and mer[ *222 ] chandizes, *as should be tendered for the said vessel, by the said freighter or of the charterparty. (t) See precedents and notes in covenant, As to the Declaration.—The charter party time, and if he do, the owner's remedy is upon the deed, and not in assumpsit, as upon an implied contract. 12 East, 179. 4 Campb. 131.-2 Chit. Rep. 570. And where a charter-party under seal was made by the master, in that character, with merchants who did not know that he was also a part owner in the ship, as in fact he was; it was held, they might sue him and the other owners in an action upon the case, for a breach of such general duties as were not inconsistent with the stipulations of the charter-party, such as the not providing ne cessaries for the voyage, and employing a negligent and unskilful master. 3 B. & B. 171.-6 J. B. Moore, 415, S. C. 8 Barn. & Cress. 166; 2 Moo. & Ry. 47. S. C. See a form in Case, post, 665; also the form in Case, in 6 J. B. Moore, 415. If the freighter covenant to provide a full cargo, consisting of copper, tallow, and hides, or other goods, he is not bound to provide a properly assorted cargo, and he is not obliged to furnish any copper, though without it the ship would be kept in ballast, and the freight would be materially diminished. 4 Campb. 103. It is usual for the parties to these contracts to bind themselves to each other in a penal sum, for the performance of their respective stipulations, but this does not preclude the party from bringing his action on any of the other clauses, and he may recov er damages beyond the amount of the penalty. 13 East, 343.-1 Bla. Rep. 395.Abbott, 5th edit. 170; but see 1 Campb 78. (u) Let this description of the parties agree with their description in the charterparty. |