average of the law of England must be resorted to and abided by. 66 Partial Losses. 66 losses. "If part of the cargo," said Lord Mansfield, ca- 15. Partial pable of a separate and distinct valuation at the "outset, be totally lost: as if there be one hundred 66 2 Burrow, 1170. hogsheads of sugar, and ten happen to be lost, the Park, 163, "insurer may pay the prime cost of these ten hogsheads, "without any regard to the price for which the other "ninety may be sold." Ship and goods were insured: the policy never attached on the cargo, but they were valued separately, the defendant underwrote 200l.: Lord Kenyon, in con- 207, Amery v. 1 Espinasse, formity with a rule at Lloyd's, suffered the plaintiff to Rogers. recover such a proportion of the sum that had been underwritten as the property upon which the policy attached bore to the whole. If a man underwrite 100 l. upon property valued at 500l., upon a total loss he shall pay 100l. and no more; if there be a partial loss of 60 or 70 per cent, he shall pay 60 or 70 l., his proportion. Where, however, the property receives damage at sea, and thereby is lessened in value, the rule for ascertaining the damage is thus: you compare the difference between the price the damaged goods fetch at the port of destination, and that which they would have brought had they been sound; whether this damage be one third, one fourth, one fifth, &c. worse, you strike the difference, and take the proportion as the value is stated in the policy. As if goods be valued in the policy at 200 l., being damaged they sell for 100l.; if they had been sound they would have sold for 15ôl., one third more ; one third of 200 l., the value in the policy, is 667. 13s. 4 d.: that is the sum to be paid. And the difference is not between the price the Park, p. 164. 2 Burrow, 1172. damaged goods sell for and the invoice price; for the See 2 Burrow, underwriter would then be involved in the rise or fall of 1167, Lewis v. the market. Rucker. 2 East, 581, Johnson v. Sheddon. 12 East, 639, The measure of calculation, further, is to be the gross proceeds, and not the nett, in order again to protect the underwriter from the fluctuation of the market. And where the calculation is to be made on an open policy, and see 2 East,' you take the invoice price, with the premium and commission, and reckon the proportional difference between ton, 803, Gold- the sound and damaged goods, as before stated. Usher v. Noble ; 109, Shawe v. Felton; 4 Taun smid v Gillies. Park, 174, Le Ryan & Royal Ex. As surance. See 3 Burrow, 1553. Park, 177, ton. Where goods taken from an enemy were valued at the sum insured, and part was lost by the perils of the seas, the rule could not be adopted, and the only mode was to go into an account of the whole value, and take a proportion of that sum as the amount of the goods lost. Where a ship, partially damaged, is repaired by the owners, the usage in London is for the insurers to bear two-thirds of the expense. "Or the ship be stranded." The companies have omitted these words for several years; but being retained by private insurers, the decisions on them are of consequence. The stranding here spoken of must be a settlement of the ship on the place where she strikes, and not a taking ground in the ordinary course of the voyage. Running on some wooden piles, and remaining there Dobson v. Bol- till cut away, was held a stranding. So where a piloted ship was fastened at the pier of the double basin at Liverpool by a rope to the shore, against the master's advice, and there left, and bilged in the receding of the tide, in consequence of which her goods were damaged at the tide's return; this was held a stranding. 4 Maule & Sel wyn, 77, Carruthers v. Syde botham, 6 Geo. 4, This disaster having arisen from the misconduct of a pilot, it may be proper to observe that the new Pilot Act continues, by s. 56, the old provision, that no remedy on a contract of insurance should be abolished by reason of the enactment in question. Where the ship was fixed for fifteen or twenty minutes, having struck upon a rock, Lord Ellenborough directed the jury that it was sufficient to constitute a stranding, although the ship received no material damage. A ship entering a harbour to shelter herself from tempestuous weather, struck upon an anchor, and being in danger of sinking, was hauled with ropes higher up the harbour, where she took ground, and lay there for half an hour; this was a stranding. 1 Barnewall & Cresswell, 736, Barrow v. Bell. Broderip & Bingham, 388, Hearne v. Ed munds. If the accident happen in the ordinary course of the voyage, as where a ship took the ground in going up the harbour, and being afterwards moored, fell over on her side, and was injured, with her cargo; it will be no stranding. And this case was distinguished from Carruthers v. Sydebotham, because the vessel was, on the occasion mentioned there, moored against the advice of the master. But where the water was drawn off for the purpose of repairing the canal, and the ship, though placed in the most secure situation that could be found, went upon some piles, and grounded, it was held a stranding, because it could not be presumed that these Rayner v. canals were always wanting repair; and so Hearne v. Edmunds was distinguished, for here the accident did not happen in the ordinary course of the voyage. In addition to the usual moorings, it became necessary to lash a ship, by a tackle fastened to the mast, to the pier, to prevent her falling over upon the tide leaving her; the tackle broke when the tide was out, and the ship fell over upon her side, by which she was stove in and greatly injured: this was held to be a stranding, and the prior decisions and distinctions were recognised and approved. An instantaneous stoppage of the ship's progress is 5 Barnewall & Alderson, 225, Godmond. 7 Barnewall & Cresswell, 219, Bishop v. Peut land. 4 Maule & Sel wyn, 503, M'Dougle v. Royal Ex. As surance. Partial losses. 3 Burrow, 1550, Wilson v.Smith. Park, 182. Park, 181, not a stranding; and so where there was a striking on a rock, and the vessel remained for a minute and a half, and was laid upon her beam-ends, it was considered useless to contend the point. The memorandum generally: "Corn, &c." The words "unless general, or the ship be stranded," cannot be understood to mean that, in case of a general average the insurer shall be liable for a partial loss; they imply an exception, not a condition. There must be a total destruction of the thing insured against; the fact of its being spoiled is not sufficient: "as long as the commodity specifically remains," said Lord Mansfield, "the underwriter is discharged;" and thus it was decided where part of a cargo of fish was thrown overboard, and the remainder, through sea damage, rendered of no value. ray; and see 4 Term Rep. 783, Nesbitt v. Lushington. 16 East, 214, Thompson v. Royal Ex. Ass. 15 East, 559, Davy v. Milford. 2 Maule & Sel injured : Flax : sugars which were Rice (m), although it did not produce sufficient to wyn, 371, Glen- pay the freight: nie v. London Assurance. 7 Taunton, 154, Hedburg v. Pearson. And where a parcel of sugar out of every hogshead was preserved, it was held that there could not be a total loss. However, where fruit was so much damaged as that it became necessary to throw the whole of it away, and (m) Although corn is a general term, yet it has been held that rice, not mentioned as such, is not corn within the memorandum. 2 New Rep. 213, Scott v. Bourdillion. Mr. Justice Wilson, in the Common Pleas, thought that salt was not included in the word saltpetre. Park, 179. Though pease, beans and malt, come within the word, Ibid. corn. the voyage came to an end through the destruction of the ship herself, the assured received as for a total loss, for the adventure was frustrated. And where a vessel was stranded, which destroyed the exception, although the ship received no damage by reason of such stranding, the words of the policy then operated to give compensation for an average loss. Some doubt having prevailed as to the validity of Cocking v. Fraser, the observations of Mr. Justice Park on that subject may be acceptable: "In the case of Park, 182. Cocking v. Fraser there was no stranding, as in Bur"nett v. Kensington; there was no disability in the ship "to proceed to her destination, as in Dyson v. Rowcroft, “ which therefore, created a total loss of the voyage.” In Cocking v. Fraser there was a voluntary, and not Ibid. a compulsory abandonment of the voyage. Park, 193, After the underwriter has adjusted the loss, it is not, Adjustment. in general, open to him to dispute the payment. But if Hog v. Gouldthere be not a fair disclosure of the facts, and so the ney. adjustment have taken place under a misconception, it 2 Espinasse, 489, Christian is not conclusive. And where the plaintiff's own wit- v. Coombe. ness swore that doubts arose in the minds of the underwriters soon after the adjustment, and that they refused Park, 194, De to pay, other evidence was deemed necessary to establish Garron v. Galthe demand. braith. Lord Ellenborough has expressed the same opinion; 1 Campb. 137. and because the attention of the underwriter is not roused to every circumstance of the loss at the time of his arrangement, it does not follow that he may not avail himself of facts afterwards disclosed to him, or of an inference to be drawn from facts. As where it was posted Id.274, up at Lloyd's that the ship in question had chased every thing she saw, which in effect was a deviation, and the underwriter must have seen the account, he was permitted, notwithstanding, to make this defence at the trial, and obtained a verdict. M Shepherd v. Chewter. |