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1805.

SHARP - Ocrsus GLADSTON L.

could not have been earned without it. This ship is
a mere blank to the underwriter of the freight, if he is
not to be paid for the expence of bringing it home;
for the owner of the ship would in that case bring
home the ship and earn other freight. These are
charges, therefore, which are wholly to be paid by
the owner of the freight, who is now the underwriter,
or else by the owners of both freight and ship, who are
the insurers on the freight and on the ship. Besides
those before stated, the following cases were cited :
Dacosta v. Newnham,* Beale v. Thompson,t Brough
v. Il'hitmore. I
· The Court held that this case was not decided ei-
ther by the case of Leutham v. Terry, or by that of
Thompson v. Rowcroft, which both proceeded upon
the particular circumstances; but that as the question
here put was whether the defendant was entitled to
make any and what deductions, some deductions
must be allowed ; which were those only that could
be considered as either chargeable on the freight
alone, or such as were incurred by the defendant, in
the course of his labouring for the service of both the
underwriters,

Lord ELLENBOROUGH, C. J. “ As there is no question here upon the effect of the abandonment, but it is taken to be absolute, and to have the effect of substituting the underwriter on the freight, who has paid the loss, in the place of the assured, the underwriter is to have back that salvage which the assured bimself receives nett,, on the subject of the freight. And the nett salvage is that sum which he receives, subject to charges attaching on the freight. He has likewise abandoned the ship; and yet, afterwards, he continues to exercise a care over those interests which he has aban

* 2 Term. Rep. 407.

+ 4 East, 52. 1 4 Term Rep. 296. doned. But they in whom each specific interest lies, 1805. ought to pay bim what is properly expended in preserve

STARP ing those interests, and each of the insurers is to have

tersus the proceeds of those interests, as a salvage on them Glads.ON TO respectively, subject to the necessary deductions.As to the insurance on the ship, that is no charge on the insurer on the freight. As for the item,? to wear of the ship, 300l.' we may lay it out of the case, as respects the owner of the freight. And then it seems as if all the rest are properly the subject of deductions in the nature of general average, or more properly, of salvage, which may be adjusted by arbitration. I wish to say nothing as to the effect of the abandonment by the owner, where it is not a chartered ship, and as against the two separate underwriters.” There was accordingly

JUDGMENT FOR THE PLAINTIFF,

Subject to such deductions as should appear to be due, upon reference to a merchant, Mr. Hankey, to say, what items, and how much in amount, should be deducted, in pature of general average.

The Court gave this as a general rule, but it seemed to me that they considered the first item as being struck out. As to the fourth, Lawrence, J. said, he did not understand what it meant. The insurance on the ship, however, was not chargeable; the wear and tear of the ship also was thought not to be chargeable ; but three items, namely the 3d; the 6th, and the 4th, were all chargeable in a proper proportion. But the court gave the general directions as above

ment.

1805.

Bart. versus

EXCHANGE ABSURANCE

Insurance.. ANDERSON, Bart. against the Royal ExcHANGE Abandone

· ASSURANCE Company.-19th Nov. Corn was insured free from average, unless general, from Wa

terford to Liverpool. The ressel was run on shore at Waterford on the 28th of January, and was wholly under water at high water. Part of the corn was taken out by the insur. ers and kiln dried, and the assured received the net produce. On the 18th of February, 21 days after the loss, the assured gave notice of abandonment, which the insurers refused to accept. Held, that the notice of abandunmaut was too late

to entitle the assured to recover as for a total loss.

THIS was an action brought to recover a total loss ANDERSON upon a policy of insurance on a cargo of wheat by

the ship Fanny, on a voyage from Waterford to LiverROYAL pool, to which action the defendants pleaded the gene

ral issue. The cause came on to be tried at the sitCompany tings after Hilary term, 1805, before the Right Hon.

Edward Lord Ellenborough, and a special jury, when a verdict was found for the plaintiffs, damages 915). 9s. 8d. and costs, 40s. subject to the opinion of the court on the following case :

The ship in question was loaded at Waterford in the month of January, 1804, with 2406 barrels of wheat in bulk. The term barrel is descriptive of measure and quantity only. The policy in question was effected on the account of Andrew Comber, of Liverpool, merchant, upon 696 barrels of the said wheat, his property. The same were shipped by Thomas Necins, who acted as the agent of the said Andrere Comber at Waterford, and were of the value of the sum insured, that is to say, the sum of 10001. The policy contains the foHowing stipulation. “ Free from all average on corn, flour, fish, salt, fruit, seeds, hides, and tobacco, unless general, or otherwise specially agreed." There was no special agreement in the policy, respecting the payment of an average loss on corn. The ship in quese tion sailed from Waterford on the voyage insured, on

1805.

ANDE ISO,

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the 28th of January, 1804, with the wheat insured on board, and in proceeding down the river she struck upon a rock, which occasioned her immediately Bart. and to fill with water; and, to prevent her from sinking, she was run on shore. The hull of the ship was for the Royal

EUCNANGE four weeks entirely under water at high water, and, Á until the cargo was taken out, she could not be raised Company. or removed. The whole of the cargo was damaged, and 1635 out of the said 2406 barrels of wheat were taken out of the said ship, and afterwards kiln-dried at IVaterford. The said Andrew Comber's proportion of the said 1635 barrels so taken out amounted to 473 barrels, which were delivered to the said Thomas Nerins, as the agent of the said Andrew Comber. Soine part of the remainder of the said cargo of wheat was sold to feed hogs, and the residue thereof was thrown into the sea as unfit for use. The whole quantity kiln-dried as before stated, except the said 473 barrels belonging to the said Andrew Comber, was, two months after rlie said accident happened, shipped on board another vessel for and arrived at Liverpool, and was received by underwriters on policies including losses by stranding; and the said 473 barrels belonging to the said Andrew Comber, might have been forwarded in 'like manner, if he had given directions for that purpose. The said 473 barrels were sold by the said Thomas Nerins, and produced the sum of 2491. Is. '9d; but the expence of saving and kiln-drying the same reduced the net pro. ceeds thereof to 95l. 138. 4d. sterling, which sum has been remitted to and received by the plaintiff's. After the said ship had remained four weeks in the situation before described, she was weighed up and taken back to Waterford, then incapable of prosecuting the voyage, and continued under repairs until the latter end of April, by which time she was repaired. On the 13th and 25th Feb. 1804, the said plaintiffs and also the said Andrew Comber, gave notice of abandonment to NO. XXVI. N. S.

H

ther versus

ASSURANCE

1805. the said defendants, but the said defendants refused to ANDERBON, accept such abandonment. Bart. and Ano

The Question for the opinion of the Court is, in whether the plaintiffs are entitled to recover in this the Royal Exchange action as for a total loss, with benefit of salvage ; and

if not, then as for a total loss of that part of the goods Company.

in question, which were not kiln-dried. If the court shall be of opinion that the plaintiffs are entitled to recorer as for a total loss of the whole cargo, with bene, fit of salvage, then the verdict to stand; but if the court shall be of opinion that the plaintiffs are entitled to recover only as for a total loss of that part of the goods in question which were not kiln-dried, then a verdict to be entered for the plaintiff's for the sum of 3561. 16s. only. And, in case the coạrt shall be of opinion that the plaintiffs are not entitled to recover any part of the sum demanded, then a verdict to be entered for the defendants.

CLARKE, J. “ There was a total loss in this case ; for the ship, by reason of the accident, did not arrive at its port of destination, and the object of the voyage was lost. Where that happens, it is a total loss, although part of the goods is saved. Manning v. Neanham.* Mason v. Skurrey,t is the leading case upon the construction of the memorandum,which is founded entirely upon the usage, Cockarne v. Fraser, I was a case of a voluntary renunciation of the voyage, and admitting it to be good law it does not apply to this case.“ He cited also Goss v. Withers,g and M' Andrew v. Vaughan,|| to shew that the abandonment was in due time.

Lord ELLENBOROUGH, C. J. “Tbis is not a to. tal loss in fact. While there was any part of the adven.

* 2 Marshall Insur. 504. Purk 166.. Park 131.

1 Park 114. § 2 Burr. 683. ll Park 115,

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