Maritime Law Digital
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- Bu səhifədəki naviqasiya:
- Gordon v Hare (1823) 1 LJKBOS 70
- Palmer v Pratt (1824) 3 LJCPOS 25 0
- Miller v Warre (1825) 5 LJKBOS 8
- Dodds v Embleton
- Foster v Reeve
- Mellish v Cattley
Maritime Law DigitalLAW JOURNAL REPORTSThis is a sample file containing the Introduction, table of cases and the first three cases. The Law Journal Reports were published in England between 1823 and 1949. There was a first series published between 1823 and 1831, and a second series from 1831. During the nineteenth century the first series was referred to as the Law Journal Reports and the second series as the Law Journal Reports (New Series). By the second half of the twentieth century it had become customary to refer to the first series as the Law Journal Reports Old Series, and to the second series simply as the Law Journal Reports, and this is reflected in the abbreviations now used in citing cases reported in the Law Journal Reports. In the period to 1875 both series of the Law Journal Reports are divided into sections according to the different courts in existence. The different sections are paginated separately. The following sections existed: Chancery; Bankruptcy, Queen’s Bench, Common Pleas; Exchequer; Cases on the Duties of Magistrates; Probate, Matrimonial and Admiralty (1860-65); Admiralty (from 1865), and Privy Council (from 1865) Cases taken to higher courts by writ of error or appeal are reported in the section for the court where the case originated. The different sections are given different abbreviations for the purposes of citation. Following the reform of the English Courts in 1875, separate sections were continued. The Bankruptcy, Common Pleas, and Exchequer sections ceased in 1880. In Maritime Law Digital the form of the citations used is in the table following. In all cases the year of the case is included in round brackets before the abbreviation; and the page number after the abbreviation. For editing see Editing protocol. The period of coverage is 1823-1887.
Table of CasesAmazon, The, The Osprey (166) 36 LJAdm 4 Albert Edward, The (1875) 44 LJAdm 49 Amalia, The (1864) 34 LJPM & A 21 Atkinson v Woodall (1862) 31 LJMC 174 Attorney-General v Tomsett (1834) 4 LJEx 171 Beatrice, The, otherwise the Rappahannock (1866) 36 LJAdm 9 Best v Saunders (1828) 7 LJKBOS 50 Bland v Lynham (1827) 5 LJCPOS 87 Brett v Beckwith (1856) 26 LJCh 130 Brindley and Co Ltd v Cilgwyn Slate Co (1885) 55 LJQB 67 Broad v McAlmar (1835) 5 LJKB 3 Brown v Hare (1858) 27 LJEx 372 Burnard v Aaron and Sharpley (1862) 31 LJCP 334 Cato, The (1866) 35 LJAdm 116 Claus Thomesen, The (1862) 32 LJPMA 106 Cleopatra, The (1868) 37 LJAdm 31 Cochran v Fisher (1834) 3 LJEx 185 Collett v Morrison (1851) 21 LJCh 878 Collinson v Lister (1855) 24 LJCh 762 Collinson v Lister (1856) 25 LJCh 38 Devaux v Astell (1840) 10 LJCP 46 Dobson v Lyall (1837) 6 LJCh 115 Dodds v Embleton (1826) 5 LJKBOS 65 Doick v Phelps (1860) 30 LJMC 2 Doorman v Jenkins (1834) 4 LJKB 29 Drury and Hudson, Re, ex parte Leslie (1833) 3 LJBy 4 Edmonds v Co of Watermen (1855) 24 LJMC 124 Ella Constance, The (1864) 33 LJPMA 189 Etches v Aldan (1827) 6 LJKBOS 65 European and Australian Royal Mail Co Ltd v Royal Mail Steam Packet Co (1861) 30 LJCP 247 EZ, The (1864) 33 LJPMA 200 Fairlie, The (1868) 37 LJAdm 66 Faithful, The (1862) 31 LJPMA 81 Foster v Reeve (1826) 5 LJKBOS 73 Freeman v Baker (1833) 3 LJKB 17 Furness v Meek (1857) 27 LJEx 34 Gertrude, The (1861) 30 LJPMA 130 Gibbs v Charleton (1857) 26 LJEx 321 Gordon v Hare (1823) 1 LJKBOS 70 Harris v Dreesman (1854) 23 LJEx 210 Heart of Oak, The (1860) 29 LJPM & A 78 Helme v Smith (1831) 9 LJCPOS 206 Herring v Ward (1839) 8 LJQB 218 Holl v Griffin (1833) 3 LJCP 17 India, The (1863) 32 LJPMA 185 Ionides v Harford (1859) 29 LJEx 36 Irving v Clegg (1834) 3 LJCP 165 Japp v Campbell (1887) 57 LJQB 79 Jeune Louise, The (1868) 37 LJAdm 32 Kerford v Mondel (1859) 28 LJEx 303 Lady Blessington, The (1865) 34 LJPMA 73 Lord v Robinson (1828) 6 LJKBOS 212 Magdalen, a derelict, The (1861) 31 LJPMA 22 Maria Das Dorias, The (1863) 32 LJPMA 163 Marina, The (1881) 50 LJAdm 33 Mary Anne, The (1865) 34 LJPMA 74 Mellish v Cattley (1826) 5 LJKBOS 74 Miles v Gorton (1834) 3 LJEx 155 Miller v Warre (1825) 5 LJKBOS 8 Mount v Harrison (1827) 6 LJCPOS 6 Nelson v Protection of Wrecked, etc Property Assoc (1874) 43 LJCP 218 Niemann v Moss (1860) 29 LJQB 208 Night Watch, The (1862) 32 LJPMA 47 Olivier, Cargo ex the (1862) 31 LJPMA 137 Orr v Dickinson (1859) 28 LJCh 516 Otto Hermann, The; The Albert; The Ella Constance (1864) 33 LJPMA 189 Palmer v Pratt (1824) 3 LJCPOS 250 Palmer v Thomas (1828) 7 LJCPOS 73 Parry v Roberts (1834) 4 LJKB 189 Paterson v Powell (1832) 2 LJCP 13 Peri DH 131, The (1862) 32 LJPMA 46 Prince Edward v Trevellick (1854) 24 LJQB 9 Princess Charlotte, The (1864) 33 LJPM & A 188 R v Collingridge (1864) 34 LJQB 9 R v The Recorder of Liverpool (1861) 31 LJMC 127 Rayne, John, the Younger, Ex Parte (1841) 10 LJQB 354 Rayne v Benedict (1841) 10 LJCh 297 Rayner v Harford (1858) 27 LJCh 708 Ridgway v Ewbank (1841) 10 LJQB 109 Santa Anna, The (1863) 32 LJPMA 198 Shadforth v Cory (1863) 32 LJQB 379 Shannon v Owen (1827) 6 LJKBOS 61 Skandinav, The (1881) 50 LJP 46 Skandinav, The (1881) 51 LJP 93 Solarte v Hilbers (1832) 1 LJKB 196 Stanton v Banks (1857) 27 LJMC 105 Stindt v Roberts (1848) 17 LJQB 166 Strahan v McQueen (1827) 6 LJCPOS 4 Submarine Telegraph Co v Dickson (1864) 33 LJCP 139 Swainston v Garrick (1833) 2 LJEx 255 Tanner v Phillips (1872) 42 LJCh 125 Templer v Lousada (1827) 5 LJCPOS 135 Thomas Fielden, The (1862) 32 LJPMA 61 Tibble v Beadon (1855) 24 LJMC 104 Union Marine Insurance Co Ltd v Martin (1866) 35 LJCP 181 Vanner v Frost (1870) 39 LJCh 626 Victoria, The (1867) 37 LJAdm 12 Wahlberg v Young (1876) 45 LJCL 783 Watts, Ex Parte; Attwater, In Re (1862) 32 LJBy 35 Wigtownshire, The (1867) 36 LJAdm 11 Wilbraham v Wartnaby (1830) 8 LJKBOS 255 Wilson v Hicks (1857) 26 LJEx 242 Wilson v Nelson (1864) 33 LJQB 220 Gordon v Hare(1823) 1 LJKBOS 70COURT OF KING’S BENCH 1823 – January 28 The relation between the owner and commander of a vessel, as to the ordering and payment of necessaries and repairs, is exactly the same as between a master and servant generally; and, consequently, the presumption of an implied authority of the commander to order repairs to be done on the credit of the owner may be repudiated by circumstances, as where the commander [71] promises to pay ready cash, and no mention is made of the owner’s responsibility. GORDON AND OTHERS v HARE Declaration, assumpsit for goods sold and delivered, – and work and labour done – with the common money counts. Plea, Non assumpsit. At the trial before the Lord Chief Justice (Abbott CJ), in the Guildhall, London, it appeared that the plaintiffs were wholesale ironmongers; that the defendant was the mortgagee in possession of the ship Matilda, and in March, 1821, was registered as her owner; that the action was principally brought to recover the value of a capstan furnished, in April, 1821, by the plaintiffs, to the ship, by the order of Captain Drake, to whom the vessel had under conditions been sold, and who, at the time the capstan was ordered, was master of the Matilda; that Captain Drake becoming embarrassed in his affairs, the defendant again took possession of the vessel with the capstan, in July, 1821, and gave the command of it to another captain; that letters from the defendant were read to shew that he had often acted as owner; that it was well known, particularly at the Jerusalem Coffee-house, that Captain Drake had purchased the ship, and that when he ordered any thing for the outfit of her he never mentioned the name of the defendant, but bought it on his own credit; that he agreed to pay for the capstan in ready money; and that the plaintiffs had often inquired after Captain Drake for the money, and had requested payment of it from him; and that, on 2nd July, they wrote to Captain Drake saying, “We must request you will immediately settle the account, or we shall be obliged to take unpleasant steps in the business. The amount of our bill is £118 17s 7d, agreed to be paid for in cash as soon as the work was executed.” It was objected on the part of the defendant, that he being only mortgagee in possession, was not liable to repairs; (1) and also, that when the owner rates the ship over to the master, there is only an implied liability on him to pay for anything that the master may have ordered; (1a) and that in this case that presumption had been destroyed, by shewing that the order was expressly on the credit of the master, particularly as it was for cash; and the learned Chief Justice directed a nonsuit. ___
(1) See Jackson v Vernon (1789) 1 H Bl 114, 126 ER 69. Chinnery v Blackburn (1784) 1 H Bl 118n, 126 ER 71n, KB. Young v Brander (1806) 8 East 10 at 13, 103 ER 248. Trewhella v Rowe (1809) 11 East 435, 103 ER 1072. McIver v Humble (1812) 16 East 169, 104 ER 1053. (1a) See Frazer v Marsh (1811) 13 East 238, 104 ER 362. Annett v Carstairs (1813) 3 Camp 354, 170 ER 1409. Twentyman v Hart (1816) 1 Stark 366, 171 ER 499. Martin v Paxton (1819) Holt, Shipping, 1st ed 1820, vol 1, 353 1. 1 Holt’s account of the case is as follows (pp 353-354): “And in a late case at Nisi Prius, Lord Chief Justice Abbott ruled, that the mortgagees of a ship, who were the registered owners, were not liable to a claim for wages made by a sailor, though they accrued upon a voyage which was so far prosecuted for the benefit of the mortgagees, that the ship’s freight and earnings, during such voyage, were made over to them by the same deed which conveyed the ship as a security for advances. In this case the plaintiff had signed articles, in the usual way, with the captain (who was the mortgagor), for the voyage in question, about a month before the mortgage to the defendants; but it appeared that the ship had not left the river Thames before the mortgage, when she sailed for South America, where she was sold to the inhabitants of that country, and the proceeds of the sale remitted, upon a general account, to the defendants’ house. The plaintiff brought his action for wages; and contended, that as the freight and earnings of the ship were conveyed as well as the vessel herself, and as the defendants were the registered owners during almost all the time of his service, he was entitled to recover either the whole of his wages, or pro tanto; that his services were beneficially rendered to the defendants, if not under an actual agreement; and that, as the defendants received the proceeds of the sale of the ship, and had likewise stipulated for the freight and earnings, they could not discharge themselves from the obligation to pay the seamen their wages. But the Lord Chief Justice ruled, that the case was to be determined upon the privity of contract; that the plaintiff had made the contract, on which he sued, with the mortgagor, and had given credit to him; he, therefore, and not the mortgagees, were liable. That the registered owners, indeed, were prima facie liable, but that they might shew that the credit was not given to them, and that they had no participation in the contract; that, to hold a mortgagee liable in such a case, would be to put an end to the mortgages of ships. In this case the defendants had never taken possession.” Martin v Paxton and others, 1819, Sittings at Guildhall, Easter term. ___
BY THE COURT It is not necessary in this instance to inquire minutely into the law, as it respects the liability of a mortgagee in possession of a ship to pay for necessary repairs done to her. Even supposing that the defendant was the actual owner of this vessel in April, 1821, yet this is a clear case of credit to the master. The legal relation between the owner and commander of a merchant vessel is exactly that of master and servant, and generally, if the master permits the servant to purchase goods for him, he will be liable to pay for things ordered by that servant, although they may never have come to his possession. But that implied authority may be rebutted by evidence, that the master always provided the servant with money. So in this case the general rule ceases to operate, for no servant could have dealt for ready cash on the credit of his master, – no person who expected the master to pay would have written to his servant the letter read in evidence; and, moreover, it was shewn to be the general rule in East India voyages to give credit to the commander. Rule refused. Palmer v Pratt(1824) 3 LJCPOS 250COURT OF COMMON PLEAS 1824 – June 23 An East India captain having borrowed money of A, in order to secure him, arranged with B that he (the captain) should draw bills on C (B’s agent at Calcutta), in favour A, payable thirty days after the arrival of the ship; which bills A was to indorse to B, who was to negotiate on Calcutta, upon the captain’s consigning to their agent there, goods to double the amount of the bills: – Held, that B had no insurable interest in the bills; and that even if he had, he was not entitled to recover upon a policy describing them as bills of exchange. PALMER AND OTHERS v PRATT This was an action of assumpsit on a policy of insurance, Subscribed by the defendant, for £500, who pleaded the general issue, and paid £15 into court, upon the count for money had and received, that being the premium received by him. The cause was tried before Lord Chief Justice Dallas, at Guildhall, at the sittings after Trinity term 1822, when a verdict was found for the plaintiffs for £485, (being the remainder of the sum claimed in this action,) subject to the opinion of the Court on the following case: The policy on which the action was brought, bore date the 20th August 1818, and was effected for and on account of the plaintiffs. The voyage or risk was by the policy expressed to be “at and from London to all or any ports and places wheresoever and whatsoever, on this side, at and beyond the Cape of Good Hope, and elsewhere during the ship’s stay at each port and place, and on all services until her safe arrival at Calcutta, upon any kind of goods and merchandizes, &c, of and in the good ship or vessel called the Paragon, whereof George B. Keene was master,” &c: and the insurance was by the policy declared to be “on two bills of exchange,” drawn by Keene on Cruttenden and Mackillop, of Calcutta: the one, for £1,500, and the other for £500. The perils insured against were those commonly enumerated in policies of the like description; and it was subscribed by the defendant at a premium of £3 per cent. The circumstances that led to the insurance were as follows:– Keene, the captain of the vessel, had purchased goods on his own account as an adventure for the voyage; and these goods having been in part purchased by means of advances made to him by Edmund Read (a ship and insurance broker), it was found on the settlement of accounts between them at Gravesend, before the vessel sailed, that the captain was indebted to Read in the sum of £2,000 or thereabouts. It was therefore agreed between them, that if, when Read came to town, he could negotiate bills for about the amount which was due, he should do so. In pursuance of this object, Read applied to the plaintiffs, merchants in London, too know whether they would negotiate bills on Calcutta to the amount required. Their answer was in the affirmative, viz that they would negotiate one set for £1,500, and another set for £500. They required Read’s indorsement upon the bills, which therefore were to be made payable to him. The plaintiffs instructed hint to have them drawn payable thirty days after the arrival of the Paragon at Calcutta, at the exchange of 2s 2½d a rupee, which was then the current rate of exchange between London and Calcutta; and required that Keene should consign to Cruttenden and Mackillop, on whom the bills were to be drawn, goods to about double the amount of the sum for which they were to be drawn, to place them [251] in funds, so that they might accept the bills. The plaintiffs instructed Read to effect policies on the bills, and to leave uninsured goods to the amount of the bills. The captain being informed of the nature of the proposed transaction, agreed to its terms, and it was carried into effect as follows:– The captain drew the two bills stated in the policy, which were in duplicate and of the following tenor – “London, London, 25th Aug 1818. At thirty days after the arrival of the ship Paragon, at Calcutta, pay this my first of exchange, second and third not paid, to the order of Mr Edmund Read, 13,584 sicca rupees, 14 annas, value received, which place to account of G. B. KEENE. To Messrs. Cruttenden and Mackillop, Calcutta.” [Indorsed] EDMUND READ.” The other was in similar terms for 4,528 rupees. Read received from the plaintiffs the £2000 upon the bills. The captain shipped on board the vessel, to the order of Cruttenden and Mackillop, a quantity of goods exceeding the said bills in value, and signed bills of lading thereof in triplicate to Cruttenden and Mackillop. Read, on behalf of the plaintiffs, then proceeded to effect the policy in question, at their expense, and for their benefit. Before the defendant subscribed it, he was informed by Read, that the insurance was on bills payable on the arrival of the Paragon, and that it was better than on goods, because not liable to average. It was left to Read to raise the money in the best way he could. The bills of lading were not given as a security to the plaintiffs, but to Cruttenden and Mackillop, who were the agents of the plaintiffs in India. The ship afterwards sailed on her voyage, with the goods and set of the bills of exchange on board; and there were purposely left uninsured, on board of the ship, goods of the captain to the full value of the bills. The ship was in the course of the voyage totally lost, together with the said set of bills and goods, by perils of the seas, such as were insured against by the policy; and neither the ship, set of bills, nor goods, nor any part thereof, ever arrived at Calcutta, nor were the bills or either of them ever accepted or paid. A bill-broker being called for the plaintiffs, who was conversant with the trade to the East Indies, stated, that in the course of such trade, it is an object to furnish captains with funds in England payable in India; that bills are made payable on the contingency of the ship’s arrival, generally thirty or forty days after arrival; and that goods to the amount of the bills remain uninsured; that the drawer of the bill pays at an exchange to cover the expense of the taker of the bill insuring; that if the ship does not arrive, the taker of the bill has to recover the money in England; and that it is not so desirable for him as a regular bill of exchange; that he would rather take a bill at a higher rate of exchange, if the bill were absolute; that this practice had been frequent from 1810 or 1811; that he (the witness) could not name any instance where bills were so drawn, and the ship had not arrived; that the consignment was to induce the drawee to accept the bills; that the object of drawing bills in this manner was to put the captains and officers of East India ships in cash, to pay for their investments; that formerly this was done by respondentia; that respondentia still continues and that some prefer one mode, and some the other; that bills are not so taken, where the drawer carries out goods, or has funds in India; that the witness knew of no instance of bills being so taken, unless where goods were carried out to India: that the goods are consigned to the person on whom the bills are drawn; and, that if the goods are lost, and the ship arrives, the bills are paid; but if the goods arrive, and the ship is lost, the bills are not paid: and in that case the holder of the bills has no remedy against the drawer. The Chief Justice desired the jury to consider whether the advance of the said £2,000 was made on the contingency of the ship’s arrival at Calcutta; and the jury found that it was made on such contingency. The question for the opinion of the Court was – whether, under these circumstances, the plaintiffs were entitled to recover upon the policy. If they were, the verdict was to stand; if not, a nonsuit was to be entered. [252] Mr Serjeant Taddy, for the plaintiffs, submitted – First, that they had an insurable interest, and were entitled to recover; and although it might be said they had none, as there was no contingency in the subject matter of the insurance, yet the money advanced by them, on the credit of the bills, was clearly advanced on a contingency; and in case of the failure of the ship’s arrival at Calcutta, they had no other security than the insurance. Although it may be contended that the money might have been lent on respondentia, and so described in the policy, according to Glover v Black (1763) 3 Burr 1394, 97 ER 891; 1 W Bl 405, 96 ER 228, still it was not a loan on goods or “effects,” to bring it within the case of Gregory v Christie (1784) Park, Marine Insurance, 6th ed, 14 1, which was decided on an express usage; and on which respondentia interest was charged. The defendant was told before he subscribed the policy, that the insurance was on bills payable on the arrival of the ship; and the jury found that the advance made was on a contingency. The bills of lading belonged to Cruttenden and Mackillop; and the consignments were made to them to induce them to accept the bills of exchange. ___
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Mr Serjeant Wilde, for the defendant; was stopped by the Court. BY THE COURT. Two objections have been raised in this case – first, that the plaintiffs had no insurable interest; and secondly, that if they had, they have not described it properly in the policy. First, they proposed to insure bills of exchange; and they are so described in terms on the face of the policy; they must therefore be taken to have been instruments of that nature; but as they are set out in the case, they appear to be only payable on a contingency, as, if the ship did not arrive at Calcutta, the bills would never be paid. What, therefore, the plaintiffs proposed to insure were not bills of exchange, but a right to obtain money in case of the arrival of a ship at a certain place. They cannot be treated as bills of exchange, but are mere waste paper; and although it has been decided that a bill may be accepted upon a contingency; or that he acceptor may be bound to pay on the happening of a particular event; yet it cannot be so drawn, as it would load the money market with instruments that would afford no security to the holder; and if a bill of exchange be drawn on a contingency, it is altogether a nullity. But it has been argued that these instruments are valid as between certain parties, although not negotiable; and as far as regards the drawer might be treated as promissory notes; and that a note payable on such a contingency would be valid. But in Pearson v Garratt (1693) Comb 227, 90 ER 444; 4 Mod 242, 87 ER 371, where an action was brought on a note, by which the defendant promised to pay the plaintiff sixty guineas, if he (the plaintiff) should be married within two months, the Court inclined against the note, because it was to pay money on a mere contingency; and that case was decided before the statute of Anne was passed; and in Ferris v Bond (5) which was a case since the statute, [253] it was held, that a promissory note made payable on a contingency was void, even as between the original parties. The instruments in question therefore must be considered as mere waste paper, ass the plaintiffs could in no event have recovered on them as bills of exchange; and if so, they have lost nothing by them. ___
(5) Bayley on Bills, 4th ed, 13n. The note was in these words – “I, John Conner, promise to pay John Ferris, or his order, £50 with interest, at six months’ notice, dated 24th June 1808, (signed) J. Connor – or else Henry Bond.” In an action upon this against Bond, the question was reserved, whether this was, as to Bond, a note within the statute; and the Court, after argument, held it was not, because Pond’s engagement only was to pay if Connor did not; and a rule for a nonsuit was made absolute. ___
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*** Miller v Warre(1825) 5 LJKBOS 8COURT OF KING’S BENCH 1825 – November A policy of insurance was effected on a ship and her cargo, at and from Grenada to London. The ship took out supplies to different estates in that island, and had arrived there, and discharged part of the outward cargo, at three different bays in the island In the meantime, the master had made arrangements for the homeward cargo. Whilst the ship was proceeding with part of the homeward cargo on board, to a fourth bay, for the double purposes of unloading part of her outward cargo, and to take in some of her homeward cargo, she was lost by perils of the sea. There is but one custom-house at Grenada. The Court (on error) held, that there had not been a deviation from the voyage insured. Declaration – In assumpsit on a policy of insurance, dated 20th of February 1823, at and from Grenada to London, with leave to ball at all or any of the West India islands, (Jamaica and St Domingo excepted) warranted to sail from Grenada on or before the 1st of August 1823, upon any kind of goods and merchandize on board the Aurora, and also on the ship, beginning the adventure upon the goods and merchandize from the loading thereof aboard the ship and wheresoever upon the ship, and to continue during her abode there upon the ship, with liberty to sail to and touch and stay at any places, to load and unload goods wherever she might touch, without being deemed any deviation. Plea – General issue. At the trial before Park J, at the Guildhall, London, a special verdict was found, upon which the Court of Common Pleas gave judgment for the plaintiff below (Warre), and the record was brought into this court on a writ of error. The facts found by the Jury were as follows: That the defendant (Miller) duly subscribed the policy of insurance; and that, the plaintiff was the owner of the ship called the Aurora. That the ship sailed on her outward voyage, under the command of one John Hunt, as the master thereof, on the 10th day of December 1822, and arrived at Grenada on the 16th day of January 1823. That the ship took out supplies for [9] several estates in Grenada; that the said master of the ship delivered froth the ship, after the arrival at Grenada, part of the outward cargo; that the ship went first to Grand Mall Bay, in Grenada, anchored there, and remained 48 hours, and delivered part of the supplies there; that the ship went next to Duquesne’s Bay, in Grenada, And delivered another part of the outward cargo there and remained three days; that the ship proceeded next to Irvin’s Bay, in Grenada, and arrived there about the 22d day of January, and delivered there part of the supplies, being for the estates of Mount Rodney, La Fortune, and Snell Hall, in Grenada; that the ship quitted Irvin’s Bay on the 3d of February; that the weather was moderate at first; that the master took a pilot off Grenville Bay; that the master gave up the charge of the ship to the pilot; that the ship while under the pilot’s charge came on the north reef; that the ship was under canvas; that the ship was hove to when the pilot came on board; that the current was running strong in at the time, and the channel very narrow; that every exertion was used, but that the ship notwithstanding was lost by perils of the sea. That the master on his arrival at Grenada had communications with all the planters, whose supplies he had on board, and with two others who had no supplies; that on the 26th of January, the ship then lying in Irvin’s Bay, the master went to Grenville by land, and had an interview with several persons, of whom one Houston was one; that the master asked Houston what quantity of sugar he would give him by such a time – he thinks, the 15th of March; that Houston promised to give him 25 hogsheads of sugar on or before that time, of the usual freight, that is, 5s per cwt; that Simpson promised the master 70 hogsheads or more by the same time; that F. O’Neil promised the master 30 hogsheads by the same time; that the master was promised 20 hogsheads by the manager of the Preference estate; that the above was all the homeward freight the master agreed to take in that quarter;–that the said master was promised from Snell Hall Estate, by Brown, 180 hogsheads by the 2nd of April; that Brown wished the master to take 150 hogsheads more; that the master declined taking more at that time; that the master was promised 40 hogsheads more by Thomas Scott of Mount Rodney, and 40 more by John Ross of Grand Mall – in all 405 hogsheads;– that the said several persons saw the master write entries of their names and quantities in a Book; that the ship was of 263 tons burthen; that the master had been the previous voyage, and that the persons had generally before supplied him with the greatest part of his homeward cargo; that it is usual with the planters to ship their homeward cargo by the ship that brings out their supplies; that the several persons mentioned, engaged to ship the quantities respectively mentioned by them. That there is one Custom-house only at Grenada for all these bays. That the master was well assured before he left London, that he should have sugar from those persons. That there was a portion of the outward cargo on board at the time the ship was lost; that the ship at the time of her loss was proceeding to Grenville Bay for the purpose of delivering the remaining part of the outward cargo, and to take in a part of her homeward cargo; that she was lost going into Grenville Bay. That the said ship might have carried 20 hogsheads more than 405; that the master saw every gentleman who was to, supply the homeward freight; that the master had completed all his engagements with the intended shippers for homeward freight, before he sailed for Grenville Bay. That the ship had about one-eighth of the outward cargo on board at the time she was lost. That a hogshead of sugar at Grenada is from 18 to 19 cwt. The counsel for the defendant objected, that upon the evidence so given, the ship had made a deviation from the voyage insured, by going to Grenville Bay for the purpose set forth in the evidence, and prayed the judge that he would declare to the jury that the said ship had been guilty of a deviation, and that therefore the defendant was entitled to a verdict; but the counsel for the said plaintiff insisted that no such deviation had been made, and the learned Judge gave it as his opinion that there was no deviation from the voyage insured, by the ship going from port to port [10] in manner aforesaid; and the jury declared that the ship was going to Grenville Bay, for the double purpose of delivering the remaining part of her outward cargo, and to take in her homeward cargo. Exception to evidence – That a deviation had been made by the ship from the voyage insured in going to Grenville Bay, as stated in the evidence. Error – Same as exception. Mr Serjeant Taddy, for the plaintiff in error, cited the cases of Inglis v Vaux (1813) 3 Camp 437, 170 ER 1437, (1) and Solly v Whitmore (1821) 5 B & Ald 45, 106 ER 1110, to show that there had been a deviation, and contended that the present case was different to those of Raine v Bell (1808) 9 East 195, 103 ER 547, Cormack v Gladstone (1809) 11 East 347, 103 ER 1038, and Chitty v Selwyn (1742) 2 Atk 359, 26 ER 617. ___
(1) See Camden v Cowley (1763) 1 W Bl 417, 96 ER 237. ___
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There can be no doubt that the ship was at Grenada, and that the policy had attached at some port of that island. The only question for our consideration is, whether there had been a deviation. We are all of opinion that the direction of the learned Judge was correct, and that there had not been any deviation from the voyage insured. It appears to be the custom for ships that take out supplies to the different estates in a West India Island, to bring back the produce of those estates, and to go as near to the estates as possible to deliver the outward and to take in the homeward cargo. This policy had attached part of the ship’s homeward cargo was on board; all the engagements for the homeward cargo were complete: and can it be considered that it is a deviation for her to go about collecting the homeward cargo, because she has some of the outward cargo on board at the time she is lost? She was proceeding to Grenville Bay for the purpose of taking in part of her cargo, and that was in furtherance of her voyage home; and the word “at” includes what is ordinarily done in preparing for the homeward voyage. The island of Grenada having but one Custom-house, may well be considered as one place, it was necessary to go from bay to bay in preparing for the voyage, and we are of opinion, that there was not a deviation. The cases of Forbes v Aspinall (1811) 13 East 323, 104 ER 394, and Forbes v Cowie (1808) 1 Camp 520, 170 ER 1043, support that view of these facts. Judgment affirmed. *** Dodds v Embleton(1826) 5 LJKBOS 65COURT OF COURT OF KING’S BENCH 1826 – November 9 Shipping – Pilot Act 1. The owner of a ship, with a pilot on board, is not protected against liability in respect of damage done by running foul of another ship, unless he was compelled by law to have the pilot. 2. And accordingly, as the Local Act, the Newcastle-upon-Tyne Trinity House and Port Act 1801, 41 Geo 3, c lxxvi, applicable to Newcastle-upon-Tyne, leaves it optional with British ships, on entering and leaving that port, to have a pilot or not – it was held, that the owner of such a ship was liable, although he had a pilot on board; the General Act, the Pilotage Act 1825, 6 Geo 4, c 125, expressly excepting the port of Newcastle from its operation. This was an action on the case, to recover damages for an injury sustained by the owners of a ship, in consequence of its being run down by another ship, of which the defendant was owner, as the latter was leaving the Tyne harbour. The cause was tried before Park J at the last Assizes for the county of Northumberland, when a verdict was found for the plaintiffs. The defendant’s case was, that the mischief arose from the misconduct of the pilot who was on board; and that, as the defendant was bound to take on board a pilot on leaving the harbour, the ship was under the entire control of the pilot, and consequently, that the liability should follow the control. The plaintiffs denied that the defendant was bound to take the pilot on board; – and the learned Judge reserved this question for the Court, giving the defendant leave to move to set aside the verdict and enter a nonsuit.
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1 Pilotage Act 1825. ___
Foster v Reeve(1826) 5 LJKBOS 73COURT OF KING’S BENCH 1826 – November 6 Shipping – Insurance 1. A ship never heard of from the time of her sailing, may be presumed to have foundered at sea; other losses being generally heard of. 2. And the same presumption may be raised, where the ship has never arrived at her destined port; never been seen after her sailing; and never heard of, except by a rumour at her destined port, that she was lost, and that the crew survived: such a rumour does not throw the necessity of any further proof on the plaint, in an action on a policy of insurance; and he may recover without calling the crew, or giving any further evidence; if the jury be thereby satisfied of the loss of the ship. This was an action on a policy of insurance, by which a ship was insured against loss, through perils of the sea. On the trial of the cause, before the Lord Chief Justice, at the Middlesex Sittings after last term, the usual proof was given to establish the fact of insurance, and that of the ship in question having sailed upon her intended voyage. Evidence was then given, that she had never arrived at her destined port; but, it appeared by the evidence of those who were called to prove this fact, that it was stated and rumoured at that port, that the ship was lost: but that the crew survived. It was then objected, on the part of the defendant, that this was not sufficient; and that the crew, who survived, if the fact was so, ought to have been called. The Lord Chief Justice, however, was of opinion, that such a rumour was not sufficient to throw the burthen of further proof on the plaintiff; and he left the question of loss with the jury, telling them, that if they were satisfied the ship was lost by the perils of the sea, they were to return a verdict for the plaintiff – which they accordingly did. Mr Barnewall now moved for a rule to show cause why the verdict should not be set aside, and a new trial granted. – The present case differs from all others which have been decided, in this respect: that, in all previous cases, the ship has never been heard of after her sailing. That fact has been considered sufficient to warrant the inference of her loss. The first case on this subject was that of Green v Brown (1743) 2 Stra 1199, 93 ER 1126. There, the fact of the ship never having been heard of, from the time of her sailing, was held sufficient to warrant the inference of her loss by perils of the sea; other losses being generally heard of. The same was held in a case referred to in Park Marine Insurance, 7th ed, v 2, 106 1; in Cohen v Hinckley (1809) 2 Camp 51, 170 ER 1078; and Twemlow v Oswin (1809) 2 Camp 85, 170 ER 1090. In all those cases, the ship was never heard of; and it was from this circumstance alone, and the extreme necessity of the case, that the plaintiff was relieved from the burthen of further proof, and the loss was inferred. Here, the reason upon which those cases proceeded, entirely fails. The ship was heard of at her destined port. It is true the hearing of her is, that she is lost; but it is also, that the crew survived. The plaintiff should therefore have called the crew; or given some further evidence, to show that the rumour, as to their surviving, was unfounded. – But … THE COURT said, the fact of loss was a question for the jury; and had been left with them in the present case. That fact admitted of proof in various modes: one of which was, that the ship had never been heard of after she had sailed. But it did not follow, that a jury were not to be satisfied of the loss, if they had evidence that she never arrived; was never afterwards seen; and never heard of, except by a rumour of her loss. The mere rumour of the crew surviving, was not to bind the plaintiff; nor was he bound to trace the rumour: it was for the defendant to do it, if he pleased; – but the other facts were amply sufficient to warrant the jury in the inference they had drawn. Rule refused. ___
1 See Park, Marine Insurance, 8th ed, 147 ff. ___
Mellish v Cattley(1826) 5 LJKBOS 74COURT OF KING’S BENCH 1826 – November 11 Factor – Lien Goods consigned to a factor for sale, and by him deposited in the warehouse of a wharfinger, cannot be held by the latter to answer his general demand against the factor. This was an action of trover, for a quantity of flax, tried before Park J, at the last Assizes for the county of York, when a verdict was found for the plaintiff, upon facts, in substance, as follows. The plaintiff was a merchant of London, carrying on trade at Antwerp, under the name or firm of Gore & Co. The defendant was a wharfinger at Hull; and the question was, which of the parties should bear the loss occasioned by the misconduct of one James, late of Hull. James carried on business as a factor, and also as a general merchant, importing goods on his own account. The goods in question were consigned from Antwerp to James, to sell, as a factor, in October 1825. There were two bills of lading; one indorsed to James specially, the other indorsed generally. The defendant had been long employed by James as a wharfinger; in which character James deposited with him the goods in question. The custom-house dues and freight were paid by James. The defendant asserted, that at, the time the goods cane to him, he did not know but that they were James’s own property; and there was no evidence to show that he did. In March 1826, the affairs of James became embarrassed, and he destroyed himself. At that time there was a general account between him and the defendant, upon which a large balance was due to the latter. In May the plaintiff demanded the goods in question, offering to pay what was due upon them. The defendant refused to deliver them, claiming a lien upon them for his general balance. Mr Holt, according to leave which was given by the learned Judge, moved for a rule to show cause why the verdict should not be set aside, and a nonsuit entered. He admitted that, it would be necessary for him to distinguish this case from Martini v Coles (1813) 1 M & S 140, 105 ER 53, as the new Act (the Factor Act 1825, 6 Geo 4, c 94) relating to factors did not extend to wharfingers. The case of Martini v Coles declared, that a factor could not pledge the goods of his principal; but in that case, Bayley J observed, that “if the principal does any thing to induce the person to believe the factor is really the principal, that would be a different case.” Here, the principal enabled his factor, who was also a general merchant, to hold himself out as the owner of the goods. In the case of Martini v Coles, the defendant had knowledge of the bill of lading. Here, the defendant had not. No bill of lading was produced; nor did the defendant know there was any in existence. BY THE COURT. The case of Martini v Coles is not distinguishable. From the nature of the goods, the defendant might have presumed there was a bill of lading and be should have called for its production. Rule refused. Yüklə 193,09 Kb. Dostları ilə paylaş:
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