1805. SHARP versus interior of the country, and the said cargo was relanded by the Russians, and put into warehouses. The ship, crew, and cargo, remained in possession of the Russians until the 22d of May, 1801, when the master and crew GLADSTONE. were liberated, and allowed to take possession of the ship again. The master, upon his liberation, procured the greater part, but not the whole of the original cargo, to be reshipped, for which he signed new bills of lading, and the remaining part of his loading consisted of goods which were no part of the original cargo. The ship continued at Cronstadt, for the purpose of procuring and completing her freight on the voyage home, from the 22d of May to the Sd of July, 1801, when she sailed, and arrived at Liverpool in the month of August, in the same year. The defendant has received the freight earned by the ship on her voyage home, the proceeds of which amounted to above 19001. In the month of February, 1801, the defendant abandoned the ship to the underwriters thereon, and abandoned the freight to the plaintiff, and the other underwriters on freight, as far as insured; and the defendant received from the plaintiff and the other underwriters on freight, the full amount of their respective subscriptions as for a total loss. The defendant claims to have paid the following charges upon the said ship and freight, a proportion of which he claims to deduct from the net proceeds of the freight received by him as aforesaid. 1. Expences of the ship and crew at Petersburg and Elsinore, including port charges and expence of shipping the cargo, upon which the freight has been paid, £305 14 0 2. Insurance on the same, 9 19 6 223 6 11 1805. SHARP 4. Charges paid at Liverpool on ship and cargo, £ 91 16 5 5. Insurance on ship home, 30001. at four guineas, less returns. GLADSTONE. 6. Wages to the master and crew during their de tention in Russia, being six months, 90 2 0 270 0 0 300 0 0 7. The defendant also claims to be entitled to make This case was argued in Trinity term last, by ROUGH, for the plaintiff, and SCARLETT, for the defendant; and a second time, on this day, by PARK, for the plaintiff, and the SOLICITOR-GENERAL for the defendant.. Arguments for the plaintiff.-On general principle as well as on the authority of Thompson v. Rowcroft, the defendant is not entitled to deduct for any of the charges made by him for the sums paid as stated in the case. The underwriters of the ship stand in the. same situation as the owners of the ship from the time * 4 East, 52. 1805. SHARP versus of the abandonment, and the plaintiff is as the person entitled to the freight. In any case which can be put, the owner of the ship would not be entitled to make the subject of these deductions additional charges, GLADSTON beyond the price of the freight, on the persons who were to pay freight; and the same rule which obtains in that case applies to the present. It may be also considered as if the assured were now bringing an action against the underwriter on the freight. Then he is not entitled to recover of the underwriter more than he is to lose by the peril which has happened. He would only lose the freight; he would not, as owner of the freight, be charged with any of the accidents which happen to the ship, any sum for the wear and tear of the ship, or for the expence of the insurance on the ship. These are all charges which fall on the owner of the ship, not on the owner of the freight. They are therefore not insured against by the underwriter of the freight. The owner of the ship could not have made these charges against the owner of the goods, who was to pay freight if the ship had arrived safe. The abandonment of the ship and freight does not put the owner in a better situation than he would be in before the abandonment, although, as the case at present stands, he is defendant instead of plaintiff; and perhaps upon a doubtful case may, upon the principle of potior conditio possidentis, be entitled to retain what he could not have recovered. Three of the items are such as, if they are allowable in this case, must be chargeable against every freighter or owner of the goods in every ordinary case of an insurance, where the ship returns safe; such as the items for the wages and provisions expended in the voyage home; the insurance on the ship home; and the diminution in the value of the ship by wear and tear in the voyage home. This latter charge is such as the underwriters on the ship would not be liable to pay. This sixth article, of the 1805. SHARP versus 1 wages during the detention, may be considered as somewhat more questionable. This is only included in the risks insured, if it is included at all, by falling under GLADSTONE, the article detention of princes; and it is now made a question whether it is to fall on the underwriter on the ship, or the underwriter on the freight, or on neither of them; or whether it is to be made the subject of a general average. If it is to form any charge, it must be a general average. In Robertson v. Ewer, it was only decided that such expences during an embargo were not recoverable on an insurance of the ship and cargo merely; and though in Eden v. Poole,+ sittings after Hil. 1785, such charges were said to fall on the freight, and not on the ship, yet that was not necessary to the decision of the case, for it was sufficient to say that it did not fall within the terms of an insurance upon the ship and tackle only. The reason why it can be made a charge at all is, that the detention of the crew there, is for the general benefit of the whole concern, for the ship, cargo, and freight. So in Lateward v. Curling, Lord Mansfield thought that the expences of the crew might in some particular cases,where the detention was absolutely necessary, be chargeable as a sort of general average; and Beawes¶ and Magens, put the express case, as a case of general average; and so it is considered in the ordinances of Louis XIV. So in Dacosta v. Newnham. The ow ner of the ship and freight, the defendant, has in this case received the whole amount of his total loss, and he has also received his freight, and therefore ought to pay back the whole amount of the money paid to him. He abandoned all his freight to the plaintiff, *3 T. Rep. 127. ↑ Park on Insurance, 61. Edit. 1787. Beawes, Lex. Merc. p. 150. 2 Term Rep. 407. and his ship to the underwriters on the ship. The ship earns freight, and he receives it; but we ought to have received it, and he is to us a wrong doer. Lord ELLENBOROUGH, C. J. "Have you considered whether, in abandoning the freight to you, having previously abandoned the ship, he abandoned any thing?" That point was conceded; the only question at the trial was, whether the defendant was entitled to make those deductions, And in Leatham v. Terry,* and also in Thompson v. Rowcroft, it was decided that whatever might be the question between the two sets of underwriters, the assured could not retain the freight, he having been paid twice over. Arguments for the defendant.-When the underwriters have paid as for a total loss, they cannot recover of the assured the money so paid without allowing to him that which he would be allowed as salvage on the freight. The owner, after the payment of the loss, ceases to have any interest in the freight. But he is bound to labour for the benefit of the freighters in the preservation of the cargo. In this he labours for another person, for the underwriter. Salvage is all that the underwriter can claim, and salvage is not the value of the thing saved, but the clear produce of the thing saved, after deducting the expence incurred in saving it. Here was a total loss, and an abandonment, which the underwriters accepted, and paid the money. If the ship had never been restored, no question could have arisen; but the owner of the freight and his captain are bound to labour for the recovery of the freight; and the underwriter after the abandonment must pay them, whether any thing is recovered or not. And there is no doubt that these expences were necessarily incurred in the earning of the freight, which * 3 Bos. and Pul, 479. 1805. SHARP verias GLADSTONE, |