1805. SHARP versus 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; GLADSTONE. 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,† Brough v. Whitmore.‡ The COURT held that this case was not decided either 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 himself 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. 4 Term Rep. 296. as 1805. SHARP versus doned. But they in whom each specific interest lies, ought to pay him what is properly expended in preserving those interests, and each of the insurers is to have the proceeds of those interests, as a salvage on them GLADSTONE respectively, subject to the necessary deductions.As to the insurance on the ship, that is no charge ou the insurer on the freight. As for the item, to wear of the ship, 2001.' we may lay it out of the case, 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 nature 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 Insurance, Abandonment. 1805. ANDERSON Bart. versus ROYAL ASSURANCE ANDERSON, Bart. against the ROYAL EXCHANGE Corn was insured free from average, unless general, from Wa- THIS was an action brought to recover a total loss upon a policy of insurance on a cargo of wheat by the ship Fanny, on a voyage from Waterford to Liverpool, to which action the defendants pleaded the geneEXCHANGE 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 9151. 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 The same were shipped by Thomas Nevins, who acted as the agent of the said Andrew Comber at Waterford, and were of the value of the sum insured, that is to say, the sum of 10001. The policy contains the following 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 question sailed from Waterford on the voyage insured, on 1805. ANDERSON, Another versus EXCHANGE ASSURANCa 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 four weeks entirely under water at high water, and, 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 Waterford. 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 Nevins, as the agent of the said Andrew Comber. Some 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 the 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 Nevins, and produced the sum of 2491. 1s. 9d; but the expence of saving and kiln-drying the same reduced the net proceeds thereof to 951. 13s. 4d. sterling, which sum has been remitted to and received by the plaintiffs. 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 18th and 25th Feb. 1804, the said plaintiffs and also the said Andrew Comber, gave notice of abandonment to 1805. the said defendants, but the said defendants refused to ANDERSON, accept such abandonment. Bart. and Another versus the ROYAL Company. The QUESTION for the opinion of the Court is, whether the plaintiff's are entitled to recover in this EXCHANGE action as for a total loss, with benefit of salvage; and ASSURANCE if not, then as for a total loss of that part of the goods in question, which were not kiln-dried. If the court shall be of opinion that the plaintiff's are entitled to recover 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 plaintiff's 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 plaintiffs for the sum of 3561. 16s. only. And, in case the court shall be of plaintiffs are not entitled to recover any part of the sum demanded, then a verdict to be entered for the defendants. opinion that the 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. Newnham.* Mason v. Skurrey, is the leading case upon the construction of the memorandum,which is founded entirely upon the usage, Cockane v. Fraser, 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, § and M'Andrew v. Vaughan, to shew that the abandonment was in due time. Lord ELLENBOROUGH, C. J. "This is not a total loss in fact. While there was any part of the adven *2 Marshall Insur. 504. Park 166. Park 114. § 2 Burr. 683. + Park 131. Park 115, |