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Soares v. Thorn

Lewin 0. Suasso.

affecting the ship, and moreover it must be without the privity or consent of such owner. If the owner place a vessel entirely under the freighter's control, and then coming on board wilfully run her on shore with the 7 Taunton, 624, master's concurrence, a barratrous act is accomplished, ton, 627; for he has parted with his interest for a time, and his agreeing to the fraudulent conduct of the crew does not prevent the act of barratry.

A mortgagee of a ship brought an action against insurers for a loss by barratry, and an injunction was moved for in Chancery by the defendant, on the ground Park, p. 155, that the mortgagor still remained the owner, and that he was also the master who had done this act, and the Court granted the prayer.

It is also observable, that the consequences of the barratrous act must happen during the voyage insured ; and where a vessel, therefore, was seized for smuggling Term Rep.

252, Lockyer after she had reached her port of destination, the under

v. Oley. writers were discharged. The wilful casting away, burning or destroying of

7 & 8 Geo. 4, ships by the master or mariners, is made felony by the c. 30, s. 9, 10. Legislature.

* And all other perils, losses and misfor“ tunes," &c. These very general words are sometimes highly useful to the assured, when he has failed, from some incidental cause, to prove the particular injury he has had reason to complain of, or has misdescribed it. As where a vessel Park; 105,

Cullen v. Butlet was fired upon and sunk at sea, this mischief, if not a peril of the sea, was deemed to come under the general description above mentioned. So where a ship was placed in a graving dock to be

5 Barnewall Se repaired, and being thrown on her side, she struck the Alderson, 161, ground with great violence, and bilged, although not ber.

Phillips v. Bar



a loss by perils of the sea, still this came within the " words all other perils, losses and misfortunes.”

Average will be presently considered ; and it seems fit in this place to say something on the subjects of

Abandonment and Salvage. Abandonment.

“ The word abandonment conveys the idea that the

whole property is not lost ; for it is impossible to cede Park, 228. or abandon that which does not exist." 12 East, 491,

Where the thing subsists in specie(u), and there by Lord Ellen- is a chance of its recovery, there must be an abandonborough. 13 East, 304,

ment; but if the property be lost wholly to the owner, Nullett v. Slied- the necessity for such a course is done away. Never

theless, the general convenience of making an abandonment has led to an opinion that it is more necessary than it really is. Where there is an abandonment, the risk is thrown on the underwriters; where there is no

abandonment the party takes the chance of recovering 15 East, 16, according to his actual loss. It is only necessary to by Lord Ellen- make a constructive total loss. borough.

Where a ship was barratrously taken away by her

crew, who disposed of the cargo according to their will, ó Barnewall & it was held to be a total loss from the time of the spoliaAlderson, 597 tion of the cargo; and although not strictly a case of Dixon 1. keid.

abandonment, it applies, inasmuch as such a total loss

was incurred as might have been abandonned for.' Bee 3 Atkins, If the salvage be too high, there may be an abandon195, Pringle v. Hartley.

ment, for the ends of the voyage are then no longer worth

pursuing, and if the assured will relinquish the salvage, Burrow, 683,

he shall not be restrained from proceeding at law. If the Guss v. With- ship be captured, the voyage is equally frustrated, and

the assured may abandon ; but if she be recaptured, and


(2) If a small portion of sugar remain in specie, there will only be an average loss. Holt's Cases, 349, Hedbergh v. Pearson.


the assured have notice, the case may be different; as ? Burrow, 1198,

Hamilton v. where the plaintiff with notice of such recapture had only Mendes: suffered a temporary obstruction, and a charge which the underwriter offered to satisfy; here, there could only be a recovery for an average loss. So where the plaintiff had actually abandonned, not being aware of the

10 East, 329, recapture, but the underwriters declined to receive his Bainbridge v.

Neilson. notice of abandonment, and the ship, being recaptured, afterwards come home safe, he was not suffered to claim as for a total loss. And it is thus, although the voyage

2 Taunton, 363, be lost, provided the ship be safely restored to its owner, Parsons on.


Maule & Selwyn, 418, Brotherston v. Barber. But if the captain, acting for the best on behalf of his Douglas, 231, a, employers, sell the ship and cargo on the recapture, and Milles ». the assured then offer to abandon, the whole voyage being lost, they will be justified in thus demanding as for a total loss. Or if he does so from the shattered state of his ship arising from perils of the seas.

3 Broderip &

Bingham, 147, Read x. Bonham ; 2 Starkic, 571, Robertson ». Caruthers; 3 Barnewall & Cresswell, 691, Cambridge v. Anderton; 1 Bingham, 445, Robertson

v. Clarke ; Ryan & Moody, 182, Tanner v. Bennett. But if he sell part of a cargo, having no other means 5 Maule & Selof raising money, for the purpose of defraying the ex- wyn. 431, Powe penses of repairs, the underwriters will not be liable, 2 Barnewall & although the vessel have been obliged to seek a port Sarquy v. Hob

Cresswell, 7, through sea-damage ; for the proximate cause of injury son ; 4 Bingo

bam, 131. is the master's inability to pay, and not the sea.

And where there was no abandonment, the assured could not recover for a total loss, when it appeared, that the timbers of the ship still held together, not being ab- Holt's Cases, solutely a wreck.

In an action against underwriters on a freight policy, it appeared, that the vessel was obliged to put into port, that part of the cargo had been so wetted as to be liable to ignition if re-shipped, unless a process took place which would occasion a delay of six weeks; and that

423, Bell ve


the master; acting like a prudent man, sold it, and returned home with the remainder of the goods : the Court held, that the underwriters were not liable with respect to this freight, for that it would be opening

a temptation to a captain if he were allowed to sail 4 Barnewall & home instead of stopping till the re-shipment of the Cresswell, 394, Morudyv.Jones. goods.

There is, therefore, a difference between cases where the assured abandons instantly upon the capture, and where he waits till his vessel is restored to him. For

a partial loss shall not be converted into a total one. 6 Taunton, 25, A vessel was seized by a neutral state, but was not conWilson v. Fors- demned; the master repurchased the vessel, and the ter; same case, 1 Marshall

, 425 s assured desired to recover as for a total loss, although 237, M.Masters they had not abandoned; but they were only allowed v. Shoolbred; their average loss. The same doctrine is naturally held 9 East, 283, Barker v.

where the injury is sustained in any other way; for exBlakes.

ample, by perils of the seas, there must, at some period 1 Term Rep. or other, have been a total loss, either by the absolute 187. Cazalet v.

abandonment of the property at a time when the owners See Park, 257, have had no dominion over it, or where the thing itself Furneaux v. is destroyed. Bradley; see also 2 Maule & Selwyn, 240, Anderson e Wallis ; ld. 278, Everth v. Smith

The desertion of the crew does not constitute a total 2 Barewell & loss, and where a fresh crew brought the vessel into port, Alderson, 513, and it was sold, but the assured took no measures for preThornely v. Hebson. venting the sale, it was held that they could not aban

don. And where the crew had run away with the ship, 2 Maule & Sel- the assured could not abandon after notice of the wyll, 290, Falk

recaptier u Ritchie. ture, although the sum represented as needful for repairs

was very considerable (x). Should the expense, how4 Maule & Sel- ever, of restitution be doubtful, and it be probable that wyn, 576, M'Iver v. Hen

a demand of more than the value of the thing restored derson,

(y) See 2 Dow, 474, Smith v. Robertson,

St. Barbe.

would be made, the assured may clearly abandon, and a proposed return of the ship’s hull, after the plunder of all her stores and furniture, can make no difference.

And a mere delay in the voyage, and a subsequent 2 Maule & Selrestoration of the property, will not authorize an aban- Wyn, 240, An:

derson v. Wallis. donment; unless the loss has actually been a total loss,

By Lord Ellenor in the highest degree probable, there is not any case borough,

Id. nor principle which authorizes an abandonment.

248 ; 5 Maule

& Selwyn, 47, Hunt 1. Royal Ex. Assurance; and see 16 East, 214, Thompson v. Royal Ex. Assurance. Yet in another case where the goods were damaged, and the destruction of the whole adventure was from the first peril so obvious that the abandonment was made 5 Maule & Selon the instant; the Court considered this a total loss, wyn, 447, Colo

gan v. London and very distinguishable from the other cases. And so it Assurance. is if the voyage be actually not worth pursuing, and it appear that no means of so doing exist; but where another vessel was ready to transport a cargo, after an injury sustained, and the disaster of the first ship, the 2 Campb. 623, demand for a total loss ceased to be sustainable.

Wilson v. Royal

Ex. Assurance. Indigo insured at the loading port was damaged by reason of the ship's sinking, but being recovered was sold Hardyt. Innes,

6 , 574, by auction at a great loss, and the plaintiff recovered as for a total loss, subject to an award. The indigo was dried by the purchasers, and fetched nearly as much at the port of destination as it would if it had not been injured; but the Court refused to set aside the award, which was considerably in the merchant's favour, or to grant a new trial.

After an abandonment, it has been decided, that the underwriter shall not be permitted to call on the assured to refund, for the benefit of salvage survives to the insurers, and there is no fraud, as each bears his own proportion of the adventure, the underwriter having agreed to indemnify the assured against loss, and the Burrow, 1966, assured only taking that which is due to him. Again, Firth. should the underwriter assent to the abandonment,

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