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The defence was that the drawing had not been made on paper, as alleged by Mr. Rogers, but on the back of a ship's card, and that it did not contain the description of any flange, but only of a screw point like that of a gimlet. The presence or absence of the fange in the screw piles made all the difference as to the rate of freight. In the first case, as they would pack quite close, they could be carried as dead weight; whereas with the flange they would be charged for by measurement, at a much higher rate.
Lord CAMPBELL left it to the jury to say, upon the evidence, whether the drawing submitted to the defendants was such as had been described by the plaintiffs or witnesses, or as it had been described by those who had been examined for the defendants.
The jury, without a moment's hesitation, gave a verdict for the plaintiffs.
The merchant usually covenants to load and unload the ship, within a limited number of days after she shall be ready to receive the cargo and after arrival at the destined port, and to pay the freight in the manner appointed. Frequently also it is stipulated that the ship shall, if required, wait a further time to load and unload, or to sail with convoy,
fur which the merchant covenants to pay a daily sum. This delay, and the payment to be made for it, are both called Demurrage.- Abbott.
BILL OF LADING.
ROLLS' COURT, CHANCERY LANE, DECEMBER 8, 1853.
(Before the Master of the Rolls.)
DRIVER V. NEILSON AND ANOTHER.
Mr. ROUNDELL PALMER (with whom was Mr. Goren) moved ex parte for an injunction to restrain the defendants in this case from parting with, or dealing in any way with, a cargo of timber lately brought from Sweden in a vessel of which the defendant Neilson was the captain. It appeared from the statement made in support of the injunction, that the plaintiffs, Messrs. Driver and Sheppard, of Littlehampton, timber-merchants, had bought the timber in question of Messrs. Hoare and Buxton, of London, and a bill of lading relative to the same was endorsed to the plaintiffs, by which it was undertaken that the cargo should be uploaded and delivered at Littlehampton. Instead of this, however, the defendant Neilson had taken the vessel to Shoreham, and had there been unloading and delivering the timber to some other parties other than the plaintiffs. Upon discovering this, the plaintiffs gave Neilson notice of their claim on the cargo, which he, however, had refused to attend to, and had persisted in the unloading and delivery of the timber. In consequence of such refusal, the plaintiff's had instituted proceedings at law against Neilson, and had him arrested under an order of Baron Alderson. On the 6th of the month the plaintiffs had at leugth discovered that the cargo of timber from Sweden which they claimed had been bonded in the name of the defendant Henry Dresser, and was being delivered to him. The object of the present application was to prevent such delivery and any further dealing with, or unloading of, the timber on the part of the defendants.
His Honour granted the injunction as prayed, upon the usual terms-namely, upon the plaintiffs undertaking to indemnify the defendants for any loss they might sustain from the present application being improperly made.
ADMIRALTY COURT, FRIDAY, JANUARY 20, 1854.
(Before Dr. LUSHINGTON.)
This was an action brought by the brig Maria, of the burden of 210 tons, against the steamer Clarence, belonging to the General Steam Navigation Company, to recover the loss arising from a collision between them, about halfpast 10 p.m., on the 6th of March last, three miles north of Hasborough Lights. The brig was proceeding from the south to Newcastle in ballast, close hauled on the larboard tack. According to her account, there was a light airy breeze from the west, the night being so clear that vessels could be seen at a distance of two miles. She carried a brilliant light, descried the steamer one point on her starboard bow, proceeding at the rate of about 10 knots an hour, and kept her “luff" until she saw that a collision was inevitable, when she ported her helm to ease the blow. While she was watching the steamer the red light disappeared, from which she inferred that the Clarence intended to pass to starboard, but when she had arrived within a quarter of a mile she ported, ran athwart hawse of the brig, and did her considerable damage. The steamer, of the burden of 426 tons, with two engines of 120-horse power each, was bound from Granton Pier to London, and, in her defence, alleged that the weather was hazy, and the wind fresh from the south-south-west. She denied that the brig had a light, and stated that from its absence she could not perceive her until she had arrived within six ships' length. The helm was instantly put hard a-port and the engines eased, but, the brig continuing to bear directly down upon her, they were again put in motion to run away from her; the brig, nevertheless, struck her stern on abreast of the mainmast. She attributed the accident to the brig not having shown a light or ported her helm.
Dr. Haggard and Dr. Twiss were heard for the Maria; Dr. Addams and Dr. Robinson for the Clarence.
The learned JUDGE, after stating the facts of the case to the Elder Brethren by whom he was assisted, left it to them to decide which vessel was to blame.
The Elder Brethren were of opinion that the Maria was close hauled, and, consequently, it was the duty of the Clarence to give way.
The Court pronounced against the Clarence.
ADMIRALTY COURT, TUESDAY, JANUARY 31, 1854.
This was an action brought by the brig Adam Clarke, of the burden of 129 tons, against the brig Borzas, of the burden of 224 tons, to obtain compensation for the loss sustained by reason of a collision between them at 11 45 p.m. on the 9th of May last, about six miles from Flamborough-head. Both brigs were in ballast, and proceeding to Sunderland for coals, the wind, as agreed, being E.N.E. According to the statement of the Adam Clarke, she was close hauled on the larboard tack, heading S.E., and on descrying the Boreas, distant a quarter of a mile, immediately ported her helm, squared her mainyard, and backed her trysail to enable her to wear away, but the Boreas starboarded her helm and ran stein on into her port side. The Boreas represented that she was close hauled on the starboard tack, heading N.; seeing the Adam Clarke approaching her with the wind free, heading W., apparently endeavouring to cross her hawse, she kept steadily on her course until 2 collision became inevitable when she put her helm hard down in the lee becket to ease the blow. She attributed the collision to the Adam Clarke attempting to cross her bows, instead of keeping her course. A cross action was ertered by the Boreas.
Dr. Addams and Dr. Twiss were heard for the Adam Clarke; the Queen's Advocate and Dr. Bayford for the Boreas.
The learned Judge inquired of the Elder Brethren, by whom hew as assisted, which of the vessels was to blame.
The Elder Brethren imputed the fault solely to the Boreas, and
This was a suit brought by the bark Orbona, of the burden of 292 tons, against the bark Actæon, of the burden of 599 tons, to recover the loss sustained in consequence of a collision which occurred between them on the 20th of January, last year, near St. Alban’s Head, off the coast of Dorset. Both vessels were proceeding from London to Glasgow, the Orbona laden with wheat, and the Actæon in ballast. The Orbona was close hauled on the starboard tack, the Actaeon on the larboard tack, and the former charged the latter with starboarding instead of porting her helm.
Dr. Addams and Dr. Twiss appeared for the Orbona; Dr. Bayford and Dr. Deane for the Actieon.
The learned JUDGE, without hearing counsel for the Orbona, inquired of the Elder Brethren whether the Actæon was justified in starboarding her helm.
The Elder Brethren considered that she was not, and
JUDICIAL COMMITTEE OF PRIVY COUNCIL,
WEDNESDAY, FEB. 1, 1854. (Before Lord Justice KNIGHT BRUCE, Lord Justice TURNER, Sir Joux
Dodson, and Sir EDWARD RYAN) This was an appeal from the High Court of Admiralty. The bark Dachenhuden, of the burden of 360 tons, bound from Hamburgh to Australia, with a general cargo and 85 passengers, and the ship Eliza, of the burden of 942 tons, heavily laden, proceeding from London to Bombay, came into collision, near the Lizard Point, on the 29th December, 1852. The bark alleged that, being close hauled on the starboard tack, she descried the Eliza, distant about a mile on the port tack, going free. The bark was kept close to the wind, and, had the Eliza held her course, the vessels would have gone clear of each other, instead of which the Eliza put her helm to port as if to cross the bows of the bark, which she possibly might have done, but when close to her, she all of a sudden put her helm to starboard and ran into her. The Eliza pleaded that she was close-hauled on the larboard tack, and on perceiving the bark immediately showed a light and ported, so as to give way, but the bark, instead of keeping her course as she was bound to do, starboarded her helm, brailed up her spanker, and rapidly ran across the hawse of the Eliza. Cross actions were entered by the respective parties. The court below, assisted by the Elder Brothren of the Trinity-house, came to the conclusion that the Eliza alone was to blame, against which the present appeal was prosecuted.
After hearing Dr. Haggard and Dr. Twiss for the appellant,
Sir J. Dodson delivered the judgment of their Lordships without hearing counsel for the respondents, and having stated the facts of the case, said their Lordships were of opinion that the decision in the court below was correct. The appeal, therefore, must be dismissed with costs.
ADMIRALTY COURT, Thursday, March 2, 1854.
(Before Dr. LUSHINGTON.)
The schooner Margaret Roberts, of the burden of 116 tons, laden with wheat, bound from Galatz to London, and the bark Fortune, of the burden of 571 tons, laden with guano and silver, proceeding from Queenstown to London, having originally sailed from Valparaiso, came into collision between 5 and 6 a.m. on the 11th of December last, about 10 miles from the Lizard. The wind was south-east; the schooner was close hauled on the starboard tack, heading E.N.E.; the bark close hauled on the larboard tack, heading S.S.W. The schooner pleaded that she had a lantern burning brightly, that she had a good look out, and that she descried the bark bout four points on her lee bow, distant from one to two miles. The bark continued to approach, the binnacle light was shown over the lee quarter, and the bark was hailed, but no notice was taken of
either, and the helm of the bark was not altered until she was close to the schooner, when it was put to starboard, in consequence of which the schooner was struck amidships, and afterwards foundered. On the part of the bark it was alleged that the night was so dark that, although a vigilant watch was kept, the schooner could not be perceived until the vessels were in such close prosimity that a collision was unavoidable. Orders were immediately given to put the helm down to ease the blow, but before they could be executed the schooner ran into the bows of the bark. She attributed the accident to there being no light visible on board the schooner; if she carried one it was hidden by the sails. Cross-actions were entered by the respective parties.
Dr. Adams and Dr. Twiss were heard for the schooner; Dr. Deane for the bark.
The learned JUDGE inquired of the Elder Brethren, by whom he was assisted, whether, with reasonable vigilance, the schooner might not have been seen in time for the bark to have adopted proper measures to avoid the collision; and whether, if the bark, as soon as she descried the schooner, had ported her helm instead of doing nothing or starboarding it, the collision might not have been prevented.
The Elder Brethren were clearly of opinion that the Fortune alone was to blame.
The Court pronouncd accordingly.
MARINE INSURANCE. Insurance is a contract by which the insurer undertakes, in consideration of a premium equivalent to the hazard; run, to indemnify the person insured against certain perils or losses, or against some particular event. When insurance in general is spoken of by professional men, it is understood to signify Marine Insurance. It is in this light we are at present to consider it; and from the preceding definition, it appears to be a contract of indemnity against those perils to which ships or goods are exposed in the course of their voyage from one place to another. The utility of this species of contract in a commercial country is obvious, and has been taken notice of by very distinguished writers upon commercial affairs. Insurances give great security to the fortunes of private people, and, by dividing amongst many that loss which would ruin an individual, make it fall light and easy upon the whole society. It is clear that, wherever foreign commerce was introduced, insurance must have soon followed as a necessary attendant, it being impossible to carry on any very extensive trade without it, especially in time of war.--Park.
COURT OF QUEEN'S BENCH, WESTMINSTER, Jan. 17, 1854.
Dean v. HORNBY.
The action was brought by the owner of a vessel called the Eliza Cornish against the underwriters of a time policy. The plaintiff claimed as for a total loss, and the question was, whether he could claim for a total or only for a partial loss. It was stated that the insurance had been effected upon the vessel from the 22nd of April, 1851, to the 21st of April, 1852, inclusive; but that during that period the vessel had been seized by pirates on the coast of Chili. Intelligence of the capture was given to the commander of Her Majesty's ship Virago, who went and re-captured her, and sent her home to England to be adjudicated upon by the Court of Admiralty. The vessel sustained some damage on the voyage home, and was taken to he port of Fayal for repairs, but it was there, though improperly, abandoned and sold. As soon as intelligence of what had occurred arrived in England, the owner gave notice to the defendant, and claimed as for a total loss, treating the seizure by the pirates as the total loss. It was now argued on the part of the plaintiff, that where there had once been a total loss the owner could recover, unless before he brought his action the vessel was restored to his possession, or it was his own fault if he did not recover it. For the underwriter it was contended that the plaintiff could not claim as for a total loss, because when the vessel was re-captured by Her Majesty's ship Virago it was sent home to be adjudicated by the Court of Admiialty in this country, under the 13th and 14th of Victoria, chap. 26, which, by the 5th section, enacted that the Court of Admiralty, after setting apart one-eighth of the true value of the prize to the captors, should order the ressel to be restored to the owners.
Mr. J. Wilde argued the case for the owner, and Mr. C'owling for the underwriters. It was stated in the course of the argument that, in former times, cases of this description were very frequent in the courts, and it was to be feared that they might be so again.
Lord CAMPBELL.-Which may Heaven forefend !
Lord CAMPBELL said he was of opinion that, according to the principles of insurance law and the decided cases, the plaintiff was entitled to judgment. The action was brought upon a policy of insurance, in which the plaintiff conditioned for the safety of the ship from the 22nd of April, 1851, to the 21st of April, 1852. On the 1st of December, 1851, the vessel was taken by pirates. Upon that, in point of fact, a total loss accrued to the assured. The vessel was rescued from the pirates, but from that time to the present it had never been restored to the owner, nor had he had the opportunity of taking possession of it; so that de facto, by a sequence of events over which he had no control, he had lost his property. He had, therefore, not obtained that security which he proposed to himself as the object of his contract. According to the cases, this principle was laid down, that when once there had been a total loss by capture the underwriters would be answerable as for a total loss, unless the assured had the property restored to him, or had the means of obtaining it. The question then was, had the ship been restored to the owner, or had he had the opportunity of taking possession of it? He (Lord Campbell) was of opinion in the negative. Here, therefore, had been a total loss by capture, and, when re-captured, the vessel was taken to Valparaiso by the captors, who kept possession of it. An objection had been made that notice had not been given to the underwriter within a reasonable time, but he (Lord Campbell) thought the notice was sufficient. It had been given on the 30th of April, 1852, soon after the plaintiff was made acquainted with the circumstances, and the mean circumstance that the notice was not given until after the policy had expired was immaterial. There was some inaccuracy in the facts set out in the notice, but, as the assured proceeded upon the facts which constituted a total loss, he was entitled to recover.
Mr. Justice COLERIDGE and Mr. Justice WIGHTMAN expressed themselves to the same effect.
Judgment for the plaintiff.
Salvage is an allowance made for saving a ship or goods, or both, from the dangers of the sea, fire, pirates, or enemies; and it is also sometimes used to signify the thing itself which is saved; but it is in the former sense only in which we are at present to consider it
The propriety and justice of such an allowance must be evident to every one; for nothing can be more reasonable than that he who has recovered the property of another from imminent danger by great lavour, or perhaps at the hazard of his life, should be rewarded by him who has been so materially benefited by that labour. Accordingly, all maritime states, from the Rhodians down to the present time, have made certain regulations, fixing the rate of salvage in some instances, and leaving it in others to depend upon particular circumstances.- Park.