mere preservation of their lives, and the ship was then taken possession of by a fresh crew, who succeeded in conducting her safely into port; held, that the ship having been sold under the decree of the Admiralty Court to pay the salvage, and it not appearing that the assured had taken any means to prevent such sale, that they had no right to abandon, and there was no more than a partial loss, for there was not a total loss before the sale, and the insured did not exert themselves to prevent it. Where freight was insured from A. to B.; the ship sailed, but was obliged to put back from stress of weather, when she was found to be incapable of complete repair, and the cargo was accordingly unloaded, and the ship sold. In an action on the policy for a total loss; held, 1st, that there was no necessity for an abandonment of the freight; and, 2dly, that the insured was bound to use all reasonable endeavors to repair the ship, so as to have carried the cargo, or part of it, which would have operated as a salvage. Where the ship was wrecked, but the goods were brought on shore, though in a very damaged state, so that they became unprofitable to the assured; held, that the underwriters on the goods, who were freed by the policy from the particular average, could not be made liable as for a total loss by a notice of *abandonment. An abandonment offered to be made by the 1172 assured to the underwriter, upon intelligence brought of the capture of the goods insured, which the underwriter refused to accept, was held not to entitle the assured to recover as for a total loss, where before action brought the goods were recaptured and arrived at the place of destination, by which a partial loss only was sustained; for the assured can only recover an indemnity for such loss as he has sustained at the time of action brought. If, in a case of insurance upon goods consigned to a particular port, on the arrival of the ship there, it is found to be in the hands of an enemy; that circumstance does not warrant the assured to abandon. 5.-Notice of abandonment.] In order that an abandon- When noment may be operative, notice thereof must be given within a tice of reasonable time. Notice given five days after the insured had abandonreceived intelligence of the loss, was held to be too late. So, ment where a blockade of Havre (the harbor in which the ship lay) given. was announced in this country on the 6th of September, and notice of abandonment was given on the 14th of October; it Thornley v. Hebson, 2 B. & A. 513. should be Green v. Royal Exchange Assurance Company, 1 Marsh. 447. 6 Taunt. 68. (1 Eng. C. L. 309.) с Thompson v. Royal Exchange Assurance Company, 16 East, 214. Lubbock v. Rowcroft, 5 Esp. 50. 'Allwood v. Henckell, Park. 280. Mitchell v. Edie, 1 T. R. 608. • Hunt v. Royal Insurance Company, 5 M. & S. 47. INSURANCE. [CHAP. XVI. was held to be out of time." So, where the vessel arrived at the port of Kinsale on the 24th of November; on the 14th of December a second survey was had, when it was found that the expenses of the repairs would exceed the value of the ship; held, that notice of abandonment to the insurers in London on the 6th of January, was too late.b But where the captain of a vessel, which had been damaged by stormy weather, arrived in London on the 25th of April, where his owners resided; and the latter received the ship's papers on the 3d of May following, and the broker who effected *1173 the policy gave verbal notice of abandonment to the underwriters on the 5th; held, that such notice was given in due time.c 6.-Effect of abandonment.] After an abandonment has been made and the insurer has acceded to it, both parties are bound by it; the underwriters from that time stand in the place of the owner in respect of the goods. Underwriters who intend to resist an abandonment should do so within a reasonable time; an acquiescence for two months without rejecting the notice, has been held to amount to an acceptance of the abandonment. An abandonment to the underwriters on a ship, transfers freight earned subsequently to such abandonment, as incident to the ship: therefore, where there had been two separate insurances on a general seeking ship, the one on the ship, the other on freight, and the ship and freight were abandoned to the respective underwriters, each of whom paid a total loss; and the vessel was captured and recaptured, and ultimately performed her voyage, and earned freight; held, that the underwriters on the ship, under the abandonment of the ship to them, were entitled to such freight.f a Barker v. Blakes, 9 East, 293. See Kelly v. Walton, 2 Camp. 155. Anderson v. Royal Exchange Assurance Company, 7 East, 38. Aldridge v. Bell, 1 Stark. 498. (2 Eng. C. L. 484.) Gernon v. Royal Exchange Assurance Company, 6 Taunt. 383. (1 Eng. C. L. 418.) 3 B. & B. 147. (7 Eng. C. L. 384.) See 2 Marsh. 88. d Smith v. Robertson, 2 Dow. 474. Bainbridge v. Nelson, 10 East, 328. • Hudson v. Harrison, 3 B. & B. 97. (7 Eng. C. L. 364.) 6 Moore, 288. 'Davidson v. Case, (in Error,) 5 Moore, 116. 8 Price, 542. 2 B. & B. 379. (6 Eng. C. L. 162.) 5 M. & S. 79. See Barclay v. Sterling, 5 M. & S. 6. Thompson v. Rowcroft, 4 East, 34. SECTION X. STRANDING. A STRANDING takes place when the ship, being driven by the What conwind or sea, and taking the ground, remains stationary for some stitutes a time; but the occurrence must be the result of some accidental stranding. circumstance, not necessarily incident to the ordinary course of navigation. "The general principle to be collected from the authorities, is, that where a vessel takes the ground in the ordinary and usual course of navigation and management *in a *1174 tide river and harbour, upon the ebbing of the tide, or from natural drifting of water, so that she may float again upon the flow of the tide, or increase of the water, such an event shall not be considered a stranding within the sense in the memorandum. But where the ground is taken under any extraordinary circumstances of time or place, by reason of some unusual or accidental occurrence, such an event shall be considered a stranding."a "Where," said Taunton, J., "the event happens in the ordinary course of navigation, from the regular flux and reflux of the tide, without any external force or violence, it is not a stranding; but where it arises from accident, and out of the common course, it is."b A mere instantaneous stopping, as striking upon a rock, and remaining there for a minute and a half, does not constitute a stranding. But if a ship strike upon a rock and remain there twelve or fifteen minutes, it is a stranding within the meaning of the policy d с Running on some piles four feet under water, erected in a river about nine feet from shore, for the purpose of keeping up the banks, and lying on such piles till they were cut away, was held to be a stranding. So where on the voyage the ship was driven by stress of weather into a harbour, at the mouth of which she struck upon an anchor, and was in danger of sinking; to prevent which, she was warped higher up in the harbour, where she took the ground, and remained fast half an hour; held, that the ship was stranded within the meaning of the policy. So where a ship was moored alongside a quay, in the usual place for ships of her burthen, and it became necessary, in addition to the usual moorings, to fasten her by tackle to posts on the shore, to prevent her from falling over Per Lord Tenterden, C. J., in Wells v. Hopwood, 3 B. & Ad. 34. (23 Eng. C. L. 18.) b Id. 22. e M'Dougall v. Royal Exchange Company, 4 M. & S. 503. 4 Camp. 283. d Baker v. Towry, 1 Stark. 436. (2 Eng. C. L. 460.) Dodson v. London Assurance Company, Park, 77. Kenyon, nom. Bolton v. Dobson, Marsh. 231. 'Barrow v. Bell, 7 D. & R. 244. 4 B. & C. 736. (10 Eng. C. L. 451.) when the tide left her; and the rope, with which she was so fastened, not being of sufficient strength, broke, and the ship fell over on her side, and was thereby stove in and greatly injured; held, that this was a stranding within the meaning of *1175 that word in the policy, and that the underwriters were liable for a partial loss, although the stranding might have been occasioned remotely by the negligence of the crew, in not providing a rope of sufficient strength to fasten the vessel to the shore." a Where a vessel arrived in a tide harbor, and proceeded to discharge her cargo at the side of the quay, which could be done at high water only, and could not be completed in one tide; at the first low tide she grounded on the mud, on a subsequent ebb, the rope, by which her head was moored to the opposite side, stretched, and the wind blowing from the east at the same time, she did not ground on the mud, which it was intended she should do, but her forepart got on a bank of stones and sand near to the quay, where she was stranded, and some damage done to the cargo, but none to the vessel; held, Park, J., dissentiente, to be a stranding. But where upon the ebbing of the tide in a tide harbou, the vessel took the ground in the place where it was intended she should, and in so doing struck against some hard substance, by which two holes were made in her bottom, and the cargo damaged; held, not to be a stranding. We have seen that under the common memorandum the underwriter is liable for partial losses if the ship be stranded, whether it arises from the stranding, or any other peril insured against. To render the underwriters liable for a loss by stranding, it must take place after the adventure has commenced and before it has terminated. Therefore, where hides were insured, "free from particular average unless the ship be stranded," and in the course of a voyage the hides were so much damaged by the salt water that they were necessarily sold, after which the ship proceeded on her voyage homewards, and was stranded; it was held, that the rights of the parties were fixed and determined at the time of the sale, and 1176 that the subsequent stranding *could not affect the nature of the loss, for the policy was at an end before the stranding took place.e Where the policy was upon goods, "including risk of craft Bishop v. Pentland, 7 B. & C. 217. (14 Eng. C. L. 33.) 1 M. & R. 49. See Rayner v. Godmond, 5 B. & A. 225. (7 Eng. C. L. 76.) Carruthers v. Sydebottom, 4 M. & S. 77. Hearn v. Edmunds, 1 B. & B. 388. (5 Eng. C. L. 129.) 4 Moore, 15. с d Wells v. Hopwood, 3 B. & Ad. 20. (23 Eng. C. L. 18.) Kingsford v. Marshal, 8 Bing. 458. (21 Eng. C. L. 344.) 1 M. & Scott, 657. to and from the ship," on linseed oil cakes, "free of particular average, unless general, or the ship was stranded;" the cakes were put on board a lighter to be landed at their destination, and the lighter stranded and sank, whereby a particular average loss was sustained; held, that the underwriters were not liable; for this liability for a particular average depended upon the ship being stranded, and that event did not happen.* SECTION XI. GENERAL AVERAGE. average. We have seen that it is usual to attach to policies a memorandum exempting the underwriters from liability for partial losses on certain articles therein enumerated, in these words, "warranted free from average, unless general." " General What conaverage signifies the loss or damage" which is sustained by a stitutes a particular part of the ship or cargo for the preservation of the general rest," towards which the owners of the ship, freight, and goods, are liable, inter se, to contribute in proportion to their respective interests. "All loss which arises in consequence of extraordinary sacrifices made, or expenses incurred, for the preservation of the ship and cargo, come within general average, and must be borne proportionably by all who are interested." To constitute a general average, the whole adventure must be put in jeopardy, and the sacrifice must be voluntary and necessary for its preservation. Where a ship in the course of her voyage was run foul of by another ship and damaged, and the captain was in consequence obliged to cut away part of the rigging, and to return to port to repair the damage and cutting away, without which the ship could not have prose- 1177 cuted her voyage, or safely kept the sea; held, that the expenses of repairs, so far as they were absolutely necessary to enable the ship to prosecute the voyage, but no further, and of unloading the goods for the purpose of making the repairs, were a general average; but that the master's expenses during the unloading, repairing, and reloading and crimpage, to replace deserters during the repairs, were not a general average, as they were not necessary in order to enable the ship to prosecute the voyage. "It is immaterial," said Lord Ellenborough, "to what cause the damage was attributable, if the effect produced was to incapacitate the ship, without endangering the • Hoffman v. Marshall, 1 Hodges, 330. 2 Bing. N. C. 383. (29 Eng. C. L. 367.) See ante, 1146. • Per Lawrence, J., in Birkley v. Presgrave, 1 East, 228. VOL. II.-25 |